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12-09-97 Regular
CI'1'"¥ O1:' ]:)ET,i:~A¥ BEACh, ¥1',ORIDA - CTT¥ COMMISSION RgGUT..~AR MEgTTNG AII.AmericaCity The City will furnish auxiliary aids and services to afford an individual with a disability an opportunity to participate in and enjoy the benefits of a service, program or activity conducted by the City. Contact Doug Randolph at 243-7127 (voice) or 243-7199 (TDD), 24 hours prior to the event in order for the City to accommodate your request. Adaptive listening devices are available for meetings in the Commission Chambers. RULES FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: The public is encouraged to offer comments with the order of presentation being as follows: City Staff, public comments, Commission discussion and official action. City Commission meetings are business meetings and the right to limit discussion rests with the Commission. Generally, remarks by an individual will be limited to three minutes or less, (10 minutes for group presentations). The Mayor or presiding officer has discretion to adjust the amount of time allocated. A. Public Hearings: Any citizen is entitled to speak on items under this section. B. Comments and Inquiries on Non-Agenda Items from the Public: Any citizen is entitled to be heard concerning any matter within the scope of jurisdiction of the Commission under this section. The Commission may withhold comment or direct the City Manager to take action on requests or comments. C. Regular Agenda and First Reading Items: When extraordinary circumstances or reasons exist and at the discretion of the Commission, citizens may speak on any official agenda item under these sections. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address public hearing or non-agendaed items should sign in on the sheet located on the right side of the dais. If you are not able to do so prior to the start of the meeting, you may still address the Commission on an appropriate item. The primary purpose of the sign-in sheet is to assist staff with record keeping. Therefore, when you come up to the podium to speak, please complete the sign-in sheet if you have not already done so. 3. ADDRESSING THE COMMISSION: At the appropriate time, please step up to the podium and state your name and address for the record. Ail comments must be addressed to the Commission as a body and not to individuals. Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission shall be barred by the presiding officer from speaking further, unless permission to continue or again address the Commission is granted by a majority vote of the Commission members present. Regular Commission Meeting December 9, 1997 APPELLATE PROCEDURES Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. AGENDA 1. Roll Call. 2. Invocation. 3. Pledge of Allegiance to the Flag. 4. Agenda Approval. 5. Approval of Minutes: None 6. Proclamations: None 7. Presentations: A. United Way of Palm Beach County B. Government Finance Officers Association's Certificate of Achievement for Excellence in Financial Reporting C. 6th Annual Site Plan Review and Appearance Board Award Recognition Program 8. Consent Agenda: City Manager recommends approval. A. AUTHORIZATION TO PROCEED/FIVE YEAR PERFORMANCE MONITORING STUDY OF THE BEACH NOURISHMENT PROJECT: Authorize Coastal Planning & Engineering, Inc. to proceed with the Five Year Performance Monitoring Study of the beach nourishment project at a cost not to exceed $31,362; with funding from the Beach Restoration Fund (#332-4164-572-31.30). The entire cost will be reimbursed from federal, state and county appropriations. B. MUTUAL AID AGREEMENT/PALM BEACH COUNTY LAW ENFORCEMENT AGENCIES: Approve a mutual aid agreement by and among Palm Beach County law enforcement agencies, as amended pursuant to an Attorney General Opinion which allows Police officers to arrest outside of their jurisdiction if they observe a crime of violence. C. FINAL PAYMENT/SIGA INCORPORATED: Approve final payment in the amount of $8,288.74 to Siga Incorporated for landscape improve- ments to the 1-95 sound barrier wall, with funding from 334-4144-572-63.34. -2- Regular Commission Meeting December 9, 1997 B. SALE OF CITY-OWNED PROPERTY (HOPE 3 PROGRAM): Consider approval of the Contract for Sale and Purchase between the City and Porfirio Maisonet and Debbie Shoun for property located at 239 N.E. 9th Street, through the HOPE 3 Program. 11. Comments and Inquiries on Non-Agenda Items from the Public- Immediately following Public Hearings. A. City Manager's response to prior public comments and inquiries. B. From the Public. 12. First Readings: None 13. Comments and Inquiries on Non-Agenda Items. A. City Manager B. City Attorney C. City Commission CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR MEETING - DECEMBER 9, 1997 - 6:00 P.M. COMMISSION CHAMBERS AGENDA .ADDENDUM THE AGENDA IS AMENDED BY ADDING THE FOLLOWING PROCLAMATION: 6.A. Proclamation in recognition of John Amos and his contributions to the performing arts. NOTE: Mr. Amos will be appearing in a production of Halley's Comet at the Crest Theatre on Saturday and Sunday, December 13 and 14, 1997. ref:ADDENDUM CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR MEETING - DECEMBER 9, 1997 - 6:00 P.M. COMMISSION CHAMBERS AGENDA ADDENDUM THE AGENDA IS AMENDED BY ADDING THE FOLLOWING PROCLAMATION: 6.A. Proclamation in recognition of John Amos and his contributions to the performing arts. NOTE: Mr. Amos will be appearing in a production of Halley's Comet at the Crest Theatre on Saturday and Sunday, December 13 and 14, 1997. ref:ADDENDUM "A I=UNNY AND TOUCHING JOURNEY THROUGlt 76 YEARS OF THE AMERICAN EXPERIENCE." P~qTtZtlO. l.~l O'HAI~E. DALLY bIEW$. N~I,V "DESTINED TO BECOME A CLASSIC." MIKE JOHNSON, METRO WEEKENDER, ENGLAND 'A TWO-HOUR TOUR DE FORCE," LOUISE FOIS TEfl MID-OCEAN NEWS BERMUDA .. "AMOS' PERFORMANCE IS SUPERBa' ,qOGER MOORE WINSTON-SALEM dOUlqNA ~ NO~TH CAROLINA Yott know him for hi~. Emmv A,-:ard nominat¢cl performalxc¢ as the heroic adttlt EunIa Kinte ~ ~¢ grotmd breaking mhxl- series R{~)'.['S. or as I :~,:t~ E~an~, ~h~~ btde~lructlgle father from the ~I television ,itcom GOOD TIN~Z.~ X~t~ w~r¢ d{ligttted by his hilarious p~t'fc,~a~c~ opposite Eddi~ Nlut'plW hi the box offic~ block bt~ster COMIN~2-' 5:O ~MEP~CA. ~qxe~er he was p(rfc nllillt, wiO~ ..';vl"~<tor._. .';-tallo[~,-. bl L(')c-'K_._ U'P ~r co-starrY., g with Bruce WilIi~ in DIE H~RD. ll..[olm. . A~l~Os. . haq. _ 'al~'aVs. p~'e$~t~ts us ~vith ~-q.t ~ x:,iI~.~.r ~srooishh~g character portrayal in hi~ o~-n extraord~arv creatio,. I-I.~LLEY'S CO~tET. l'hj$ .r~03.0f~:~¥}~' h3uc He force i5 the h.i}3~Jov5 and movi~K otor~, of ,n 87 year vid n~an ~vhe ~h~r~s the men~ories o( o ~'ith the fan'~ou, Comet he saw 76 years eartj~.r as ~1 11 y~r old bo)~ H~'se~ out i_t~ the ~,'~e }x~at~r~ c,t the mOOR, to the m0ur~tai~d,)p where he first met the Comet, ~d expla~s to his old ~iend "that thing~ s~re have cha.nged sh/c~ the last Hme you pas~ed th~s w,y." ~e takes the ~udience on a ~vJdrlw~d adve~tur~ back hx ~me. ~egis~rffr~g at the ~lrn of flxe ride tlc.rough ~'orld wars. ron~a~c< at ~ bar.n vai'd dance, f~ food restaurants, the golder~ age of radio, b~ta~tv ~u~g ~e e:qrly civil fights mc,"emerxt, ar~<.t O~e i,vy~ vf dhildhood. Mttch has changed since the la.st tim,h the Co,~et com~ [o visit, .lo~ur AmoF perf,:,rm~r~,:¢ is t&~lv k~cred~ble, l/e tramforms himselg into a parade of cha.rgcte.rs: a.*~ q. nchat~th~g 87 year old rmi,.'ersal pan'iarch: a tc~ugl~ YO~.~K ma.~. j.n the ~:n.idd. le of a blood cl~llillg ~Vll b~ttle ~ ~e Pac~c:. a newly freed I.f. berla.n sl~ve ~,:h,:, he~(i~ <,u~ ~'~'~r a( ~ cat~le ~r~t'er ~to Co~anch~ territo~. HALLEY'S CO?,.IZ7 ,., ~ f0icJ,~o6r~, ir,credibly fury, thought provoker theatrical hunxa.~ ,:'~},~:,'i~.,~c~ v,)~ ~,'il~ want to sh~re ~ANAGEMENT INTERNATIONAL, INC. Meinstege WeSt ~elnstage Central MaJnstage East 425 Gra~d Oa~: Lane 8144 A Big Bend Rt I Box 31-A Thousand Oaks, CA 91360 St. Louis, MO 63119 Paris, VA 20130-8802 1~05) 494-8454 Fax (805) 449-4388' (314) 962-4478 F~ (314} ~62-6960 (5-10~ 592-9573 Fax (5401 S92-957~ DEC:--~]9--9? TUE ~]E. :El7 PM OL~ .c~C:HOOL SQI_I~RE 40?..24.-~ 7018 P. 01 III School Square ¢ v L 1' IJ 1~ · ~.~ c~ DATE: F~ff(561) 2~-701g PHO~ ~(561) 243-792g TOT~ ~ER OF PAGES ~ YOU DO NOT ~CEI~ ~L PAGES, PLEASE THIE OKIGrNAL OF TI-HS DOCUM3ENT: WILL NOT BE SENT UNLESS REQUESTED WILL BE SENT REGULAR MA.IL rip Rev. 4/97 Old School Square, Inc. 51 North Swinton Ave. Delray Beach, Florida 33444 ]3 E C -- ¢~ :!:, -- '9 7 I'lOIq Or_'. : 22 PI~ OL]D SCHOOL SQl_lADE ,1-07 ?.--1-~ 701 ~ P. ~ ! Old School Square .~s c~ DATE: TO: ~ ' F~ ~ (561) 243-7018 PHO~ ~ (561) 243-7922 TOT~ ~ER OF PAGES ~ YOU DO NOT ~CEI~ ~L PAGES, PLEASE C~L (561) 243-7922 AS SOON AS POSS~LE THE. OILIGINAL OF THIS DOCUMENT: _~WILL NOT BE SENT UNLESS REQUESTED WD_,L BE SENT I::kF. GLILAR MA.~, Kev. 4/97 Old School Square, Inc. 51 North Swinton Ave. Defray Beach, Florida 33444 (561) 243-792Z ~EC--08--"~-7 MOI-t 0~. ~22 PM OL'D $C:FIOOL Sr.,~I_I~RE 407 John Amos has devoted a lifetime to the performh~g arts having made his theatrical debut in Los Angeles and subsequently compiled an impressive list of thea£rical, television and movie credits. WHEREAS: Jolm Amos start'ed in the most celebraled T.V. movie of all time, Alex Haley's ROOTS for which he was nominated for an Emmy Award. WHEREAS: John Amos received wide acclaim fi)r his television wining skills, wimfing an Euuny for the Loman and Barkley Show. loire Aanos created some of the most memorable and groundbreaking T.V. characters in television history including Gordie, the Weatherman on Mary, Tyler Moore, James Evans in Good Times and is currently on the lVresh PriliCe of Bel Air and I~t lhe ~ouse. lohn Amos served as the Artistic Director of the Jolm Harms Theatre in Englewood~ New lersey, the largest theatre in the state and designated "Regional Center of A~xist Excellence" by the New Jersey State Council of the Ails. WHEREAS: John Amos conceived and wrote ]:ialley's Comet and has played to exceptional reviews and sold otl! houses all over the world. WHEREAS: John/Mnos fostered community involvement in the arts by encouraging local participation of choral groups in tfis play ltalley's Comet, and also taking special time for workshops and special events with children in the communities he visits. DEC:--08-'_~.7 I"lOl--t 06:23 PM OLi~ SCHOOL SQU:~P..E .:-1-~_-17 245 7015 P. 0~ WHEKEAS: John banos' Halley's Comet was chosen to kick off the national celebration of Black Histmy Month a.t the Snfithsonian Institute in Washington, D.C. WI-IEREAS: $ohn 3anos creates a positive role model for youth a.s an actor a~d compassionate human being who is always willing to share his life experiences about acting, writing and show business and carry his inspirational and frank message about dremns and success to thc world WltEKEAS: }otat Amos is the proud father of two beautifid children, Shannon and K.C, and the grandfather of Quiera Noel and, in Iris own words, considers himself to be one of the luckiest men on earth "who loves Iris work and is grateful to God to have a profession that brings joy to so many." Nov-O7-g7 1] :51A UWPBC 561 3756666 P.01 EXECUTIVE COMMITTEF- ¢!lflievr~ Che. ir~aet~ Moyte FlaniRan, Kt~t~ Ko/ins, Chni~efl Elect J~ L H~w~d .~m~e~ ~,~¢~,~ c,,. U~ited Way ~t~re~ry Rmldy Clough, CPA Thoma~ ~ (3ougk Co., FA. l~IMimlc ~i Chaiman EO~ E Zo~J L,~co.~ NUMBER OF PAGES INCLUDING THIS COVER: 1 How~ Dregm~, ~q. G~enbe~, Daurig, Ho~ma~. Lipq~ ~vsen & s~,,, .. ~.Ue,o. Friday, Novemhcr 07. 1997 Planned Giving~ndowllgnt ~h~. s. ~, TO: Doug Randolph ~umegic Pl~i~g M~'kcIin~Coirlllig ~ieat ions Wa~c Finance/A ~iuAdr~lhtJ$~rati~ Thoma~ C. [~vlio United Way of Palm Beach CounW 1 Gowmmcm Relati~s :o,g~ ~ ~,.~.~ 37S-6666, Fax ) l~-Sun lnco~rated Putunda Ro~n M. Friedman, CLU Alexis de Tocql~villc ',~,,, 0,,.~.. CO MMENTS: Cam~ ¢~"7-,,. ~.,°' .~u,.s~, ~._,, Thank you so much Ibr all your help with ll'~e Employee Campaign wj,,,=,s,~i~, this year. Lance ~. llowdcn I.ymt Rri~e~ L'~rk S~q~. ~,... ~,~,,,~. a ~,~, We WOLdd like to fi')rmally thaffi< thc Mayor, the City Commission u~.,~ ~. ~, as well as thc entire staff at all upcoming Commission meeting, a~,..,~, m~¢~op~,, Please let me know if yott cal~ get us on thc a.gcn&t. R~ Macon Florida Pelw~r & ~gbt Lab,, ~¢~io.~ lql luok fol~'ard to hearing fi'on) you. Mille Ncflm P~dm ~acl~l~asu~ (.~a~t A Ft.- C10 Agency K~Jalioml~~ l'qmd DistfiDutiumt Thomas A, Sh~h~. ill Rsq. R¢,vmond & Sheeium, PA. Olivia B. t, .......... ,i(vRel,,t,o,,,C'ott. s,lt,,nt ~.A. 26~} Quantum Boulevard, Boynton Beach, Florida · 33426 {561) 375-66~ · out~ide central county 930-8929. Fa~: (561) 375-6666 · c-mail:uwaypbc O?gate.net GOVERNMENT FINANCE OFFICERS ASSOCIATION 180 North Michigan Avenue, Suite 800, Chicago, Illinois 60601 312/977-9700 · Fax: 312/977-4806 November 12, 1997 Mr. David T. Harden City Manager City of Delray Beach 100 N.W. 1st Avenue Delray Beach, Florida 33444 Dear Mr. Harden: We are pleased to notify you that your comprehensive annual finan- cial report for the fiscal year ended September 30, 1996 qualifies for a Certificate of Achievement for Excellence in Financial Reporting. The Certificate of Achievement is the highest form of recognition in governmental accounting and financial reporting, and its attainment represents a significant accomplishment by a government and its management. When a Certificate of Achievement is awarded to a government, an Award of Financial Reporting Achievement is also presented to the individual designated by the government as primarily responsible for its having earned the certificate. Enclosed is an Award of Financial Reporting Achievement for: Milena L. Walinski, Assistant Finance Director. The Certificate of Achievement plaque will be shipped under sepa- rate cover in about eight weeks. We hope that you will arrange for a formal presentation of the Certificate and Award of Financial Reporting Achievement, and that appropriate publicity will be given to this notable achievement. To assist with this, a sample news release and the 1996 Certificate Program results are enclosed. We hope that your example will encourage other government offi- cials in their efforts to achieve and maintain an appropriate standard of excellence in financial reporting. Sincerely, GOVERNMENT FINANCE OFFICERS ASSOCIATION Stephen J. Gauthier Director/Technical Services Center SJG/kas Enclosures WASHINGTON OFFICE 1750 K Street, N.~, Suite 650. Washington, DC 20006 202/429-2750. Fax: 202/429-2755 7' "~' THRU: N~~E DOIV;ING U EZ, DI~TO~R ZONING FROM: 3'~mlJ~RE~ A. COSTELLO /SI~IOR P~NNER SUBJECT: MEETING OF DECEMBER 9, 1997 SITE PLAN REVIEW AND APPEA~NCE BOARD AWARD RECOGNITION PROG~M This year is the 6th annual Site Plan Review and Appearance Board (SPRAB) Award Recognition Program. The awards are given to those property owners and their design teams who have significantly contributed to the beauty of the community through creative design or renovations to existing properties. Eligible projects are those which were approved by the Board, and received a Certificate of Occupancy during the previous fiscal year (October 1, 1996 - September 1, 1997). This year's design categories and recipients are: NEW COMMERCIAL DEVELOPMENT Linton Medical Park. 4800 Linton Boulevard · Holland Builders, Inc. (OwnedDeveloper) · Kenneth Carlson (Architect) · Kevin Holler & Debra Turner- Oster, Jerry Turner and Associates of Florida, Inc. (Landscape Architects) REDEVELOPMENT PROJECT - CRA AREA Ocean City Lumber- 50 Pineapple Grove Way (N.E. 2nd Avenue) · Janet Onnen, Ocean City Properties, LTD (Owner) · George Brewer, Brewer Architecture (Architect) · Dan Carter, Daniel H. Carter Landscape Architects, Inc. (Landscape Architect) City Commission Documentation Meeting of December 9, 1997 Site Plan Review and Appearance Board Award Recognition Program Page 2 MULTI-FAMILY RESIDENTIAL DEVELOPMENT - LARGE SCALE Citation Club- 4801 S. Citation Drive The Beztak Companies (Developer) · Marc Wiener, AIA (Architect) · Kieran Kilday, Kilday and Associates, Inc. (Landscape Architect) MULTI-FAMILY RESIDENTIAL DEVELOPMENT - SMALL SCALE Casa La Brisa - 51-59 Seabreeze Avenue · Ironwood Properties, Inc. (Developer) · Shane Ames, Ames Design International (Architect) · Debra Turner- Oster, Jerry Turner and Associates of Florida, Inc. (Landscape Architect) ARCHITECTURAL DESIGN Ocean City Lumber- 50 Pineapple Grove Way · Janet Onnen, Ocean City Properties, LTD (Owner) · George Brewer, Brewer Architecture (Architect) EXTERIOR RENOVATIONS Musician's Exchange - 213 E. Atlantic Avenue · Bob Kaufman, RHAAssociates, Inc. (Owner) · Spiros Zakas, Zakaspace (Architect) · Frank Smith, J. F. Smith Design & Build (Architect) SlGNAGE Regal Cinemas - 1660 S. Federal Highway · Regal Cinemas (Owner) · Ferrin Signs, Inc. (Sign Contractor) Joseph Zupo Custom Tailor- 54 S.E. 6th Avenue · Joseph Zupo (Owner) · MacClaren Sign Co. (Sign Contractor) City Commission Documentation Meeting of December 9, 1997 Site Plan Review and Appearance Board Award Recognition Program Page 3 MURALS Ocean City Lumber- 50 N.E. 5th Ave. (Facing to F.E.C. Railroad) · Janet Onnen, Ocean City Properties, LTD (Owner) · Anna Evans & Joe Lavely (Artists) REDEVELOPMENT PROJECT - CITYWIDE The Plaza at Delray- Northwest corner of S. Federal Highway and Linton Boulevard · Robert Shapiro, LEFMARK Florida, Inc. (Developer) · AMB Property Corporation (Developer) · Lawrence S. Levinson, Levinson Associates L.P. (Architect) · Marc Reed, Reed Landscaping, Inc. (Landscape Architect) The Award recognition Program will be conducted by Dan Carter, Chairman of the Site Plan Review and Appearance Board. The presentation will include a slide show with commentary. Mr. Carter will present a framed certificate to each of this year's recipients for their outstanding contribution to the City of Delray Beach. Also, LEFMARK Florida, Inc. is being presented a plaque of special recognition for the redevelopment of the Delray Mall. TO: ('D,,AVID t. F~DEN, CITY MANAGER THRU: OF PLANNING & ZONING FROM: JOHN WALKER, PROJECT COORDINATO/~~ SUBJECT: MEETING OF DECEMBER 9, '1997 ** CONSENT AGENDA** AUTHORIZATION TO PROCEED - FIVE YEAR PERFORMANCE MONITORING STUDY OF THE BEACH NOURISHMENT PROJECT The action requested of the City Commission is that of approval of an authorization to proceed with the Five Year Performance Monitoring Study of the beach nourishment project. Annual monitoring of the beach nourishment project is required by our permits from the Florida Department of Environmental Protection to assess the performance of the project. The information gathered is also used to set parameters of design and timing for future maintenance nourishments. Work in this task includes beach, dune, and offshore profiles; analysis of volume and shoreline changes; analysis of sand grain size; and dune accretion evaluation. This item is covered in our contract with Coastal Planning & Engineering, Inc. Funds are available in the Beach Restoration Fund (act # 332-4164-572-31.30). The entire cost will be reimbursed from Federal, State and County appropriations. By motion, approve an authorization for Coastal Planning & Engineering, Inc. to proceed with the Five Year Beach Performance Monitoring Study at a cost not to exceed $31,362 as requested in their attached correspondence. Attachment: * Letter from CPE S:\adv\beach\survey7 ~:~' A' COASTAL & OCEAN ENGINEERING COASTAL SURVEYS BIOLOGICAL STUDIES COASTAL PLANNING & ENGINEERING, INC. GEOTEO.N,CALSERVICES 2481 N.W. BOCA RATON BOULEVARD, BOCA RATON, FL 33431 (561) 391-8102 Fax: (561) 391-9116 Internet: http:llwww.cyberspot.comlcpe E-maih cpeboca@aol.com 4819.02 November 18, 1997 Mr. John Walker Project Coordinator City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 Re: Proposal for 60 Month Beach, Dune and Borrow Area Monitoring Study of the 1992 Beach Renourishment Project Dear John: This is a proposal to conduct the five year post-construction beach and dune monitoring survey of the 1992 beach renourishment project. The State of Florida, Department of Environmental Protection (DEP), coastal construction permit for the renourishment project requires annual topographic and hydrographic surveys of the beach, dune and borrow area. The surveys provide the required data for coastal evaluations which are conducted to monitor the long-term performance of the renourishment project. In addition to complying with permit requirements, the information will be utilized in the design of the beach renourishment project. The required borrow area bathymetric survey is not included in this proposal. The borrow area survey required by the State permit will be obtained as part of the planned geotechnical investigation to locate sand for the renourishment project. The bathymetry will incorporate a larger area in order to locate remaining sand volumes for furore beach renourishment. The proposed monitoring study will provide the required information to assess the beach performance, provide information required for design purposes and meet the State of Florida permit requirements, as follows: 1. Dune, Beach and Offshore Survey Profiles: Beach profile cross-sections from beach monuments R-175 through R-192 will be surveyed in accordance with the state permit beach monitoring requirements. Each profile will be surveyed from the dune to the 30 foot offshore depth contour. Profiles will be surveyed with a hydrographic survey sled which enhances accuracy compared to fathometer surveys and provides repeatability with furore monitoring surveys. The dune fronting the public beach will also be surveyed, on DEP profile lines. Mr. John Walker November 18, 1997 Page 2 2. Sand Grain Size Analysis: A total of 36 surface sand samples will be collected at 4-foot contour intervals from +12 feet to -20 feet (9 samples per line) along four State of Florida beach profile lines. Each sample will be subjected to a mechanical sieve analysis. Based on the sieve analysis results, the mean grain size will be computed and compared to post-construction data. Changes in mean grain size at each study site will be compared to previous study results and the information provided to the Department of Environmental Protection (DEP), Bureau of Beaches & Coastal Systems, in accordance with permit requirements. 3. Beach Volumetric and Shoreline Position Analysis: The data obtained from the beach profile topographic and hydrographic surveys will be reduced, plotted and compared to the 1992 post-construction and December 1996 surveys. Volume changes within the project area beach will be computed. The mean high water shoreline position will also be determined and compared to its position in previous surveys. This information will be used to provide an engineering assessment of the performance of the beach renourishment project. Areas of accelerated erosion (i.e. "hot spots") will be identified for future consideration in the project redesign and also to monitor the extent of hot spot progression into the beach. 4. Sand Dune Evaluation: The increase in the volume of sand in the dune will be computed based on the profile comparisons to determine the extent of sand deposition in the dune system. The quantity of volumetric accretion will be determined for the years after construction of the 1992 renourishment. Profile cross-sections on DEP profile lines will provide dune dimensions including dune height and seaward progression of the dune. The change in the dune profile will also be evaluated for proper management of the dune system. 5. Beach and Borrow Area Monitoring Report: A report will be prepared summarizing the results of the study. We will provide two copies of the report to the City and two copies to the Department of Environmental Protection, Bureau of Beaches and Coastal Systems. Additional copies will be provided to the U.S. Army Corps of Engineers and Palm Beach County. The engineering fee for the surveys, evaluations and report is $31,362 (excluding the borrow area survey). A cost breakdown is attached for your review. COASTAL PLANNING & ENGINEERING, INC. Mr. John Walker November 18, 1997 Page 3 Thank you for the opportunity to continue to serve the City of Delray Beach. If you should have any questions, please call me. Very truly yours, COASTAL PLANNING & ENGINEERING, INC. Richard H. Spadoni Vice President RHS/tlm cc: Thomas Campbell Jeff Andrews Craig Kruempel d:wp61 docs/palmbeach/delray/481902.321 COASTAL PLANNING & ENGINEERING, INC. 11/18/97 01:37 PM DEATAILED HOURLY COST BREAKDOWN DELRAY BEACH RENOURISHMENT 5 YR. MONITORING BEACH PROFILES COASTAL PLANNING & ENGINEERING, INC, 17-Nov-97 t. FIVE tS) YR. POST.CONSTRUCTION PROFILES PERSONNEL (HOURS) EQUIPMENT (DAYS) TOTAL COAST OC. LEVEL BRONCO PE CIH ST ST STATION SLED PROG. BOAT & ROD ON BCH. A. BEACH PROFILES 1. ADMIN. & SUPERVISION 6 4 2. SURVEY RECON. 4 4 3. DUNE PROFILES 8 16 2 4. BEACH PROFILES 24 48 2 2 5. SLED PROFILES A~ MOB/DEMOB 4 4 10 B. FIELD 20 20 20 2 2 2 2 2 TOTAL HOURS 6 28 60 98 2 2 2 2 4 4 RATE 45.62 29.03 18.23 12.6 120 100 250 400 50 100 MULTIPLIER 2.75 2.75 2.75 2.75 1 I 1 I I 1 SUB-TOTALS 752.73 2235.31 3007.95 3395.7 240 200 500 800 200 400 SUB-TOTAL $11,732 ~- SA~ID SAMPLE & ANALYSIS ( 5 YR_ POST~ONSTRUCTION t NOTE: INCLUDES SAMPLES FROM PROFILE LINES R177, R180, R184 AND T187 ( TOTAL SAMPLES 54 ) PERSONNEL (HOURS) EQUIPMENT (DAYS) COAST OC. PE ST GEOL EC FATH. PROG. BOAT LAB A. SAND ANALYSIS 1. COLLECT SAND SAMPLES 8 8 I 1 1 2. LAB ANALYSIS 6 54 3. COMPUTATIONS / ANALYSIS 2 12 12 8 TOTAL HOURS 2 26 20 8 1 1 1 54 RATE 45.62 12.6 15.04 35 t00 250 400 50 MULTIPLIER 2.75 2.75 2,75 1 1 I 1 1 SUB-TOTALS 250.91 900.9 827.2 280 100 250 400 2700 JOB TOTAL $5,709 DELRAY97.WK4 1 11/18/97 01:37 PM 3. DATA REDUCTION & ANALYSIS ( 5 YR, POST.CONSTRUCTION PERSONNEL (HOURS) CE PE E ET EC A. PROFILE VOLUME & SHORELINE 1. SURVEY DATA REDUCTION 4 16 12 2. VOLUMES COMPS. & PLO~rlN 4 4 12 8 3. DATA ANALYSIS I 8 8 TOTAL HOURS 1 12 16 28 20 RATE 61.52 45.62 25.42 14.9 35 MULTIPLIER 2.75 2.75 2.75 2.75 1 SUB-TOTALS 169.18 1505.46 1118.48 1147.3 700 SUB-TOTAL $4,640 4. DATA EVALUATION & REPORT ! 5 YR. POST-CONSTRUCTION PERSONNEL (HOURS) CE PE E ET D WP D. DUNE EVALUATION 1, SURVEY DATA REDUCTION I 2 8 2. VOLUMES COMPS. & PLOTTIN 1 4 4 2 3. DATA ANALYSIS 2 4 2 TOTAL HOURS 0 2 6 8 12 2 RATE 61.52 45.62 25.42 14.9 20.12 35 MULTIPLIER 2.75 2.75 2.75 2.75 2.75 1 SUI~-TOTALS 0 250.91 419.43 327.8 663.96 70 SUB-TOTAL $1,732 PERSONNEL (HOURS) CE PE E CIH D C WP O. REPORT 1. WRITING 2 12 24 20 2. DRAFTING 16 3. WORD PROCESSING t6 16 4. REPRO{~I. JCTION 4 TOTAL HOURS 2 12 24 20 16 20 16 RATE 61.52 45.62 25.42 29.03 20.12 17.92 35 MULTIPLIER 2.75 2.75 2.75 2.75 2.75 2.75 t SUB-TOTALS 338.35 1505.46 1677.72 1596.65 885.28 985.6 560 SUB-TOTAL $7,549 JOB TOTAL $31,362 OELRAY97.WK4 2 CITY OF I)ELAI Y BE#£H CITY ATTORNEY'S OFFICE TELEPHONE 407/243-7523 · FACSIMILE 407/243-7816 POLICE LEGAL ADVISOR Ali. America City ® TO' David Harden, City Manager 1993 FROM: Eric D. Hightower, Police Legal Advisor DATE: December 1, 1997 SUBJECT: County Wide Mutual ,Aid Agreement Attached for your review and insertion is an amendment to the above-referenced agreement that was approved by the City Commission in June of this year. The only change to the agreement is that Paragraph III of Section III allows our officers to arrest in another jurisdiction if they observe a crime of violence. Pursuant to the provision once our officer effects the arrest, they must immediately contact the local police department, contact our department and cooperate in writing up the report regarding the arrest. This provision is pursuant to an Attorney General Opinion elicited by Police Chief's Association that is attached. All municipalities and the Sheriff's Office have agreed to this policy due to the need to protect citizens from crimes of violence throughout Palm Beach County. As with the previous agreement, liability will not increase pursuant to Section V. Feel free to contact me if I can be of further assistance in this matter. EDH:Ibg c: Susan Ruby, City Attorney Allison MacGregor Harty, City Clerk Richard Overman, Chief Harden20 doc Printed on Recyc/od Paper FROM:att~; ~len ]ibrar~l TO: 561 243 7815 DEC 1, 1997 3:lTPM P.04 State of Florida Office of thc Attorncy General Advisory Legal Opinion (Formal) Number: AGO 97-45 Date: ~uly..17,..~97 Subject: ~/lutual.~i~ agreement, officer observing a felony Chief James P. Kelly President, Palm Beach County Associ~tion of Chiefs cf Police, Inc. 33B0 Forest Hill Boulevard, Suite B-12I West Palm Beach, Florida 53406-5869 authorizing law enforcement officer in participating agency's ~urie~iction who observes felony or crime of violence to act is permissible. Part i, Ch. 23, and s. 23.121, Fla. Stat.; s. 23.1225, Fla. Stat. (1996 Supp.). Dear Chief Kelly: You state that you and the several municipal chiefs of police in Palm Beach · County are considering entering Into a mutual.ai~ agreement. On behalf of the chiefs of police, you ask the following question: providing that if a municipal police officer is in another participating agency's ~uriadiction and observes a crime of violence or a felony, the officer may exercise authority as a sworn law enforcement officer? In sum: Municipal law enforcement agencies may enter into a ~UG~i ai'~ agreement providing that if a ~unicipal police officer i~ in ~nother participating agency's ~urisdiction and observes a crime of violence or a felony, the officer may exercise authority as a sworn law enforcement officer. According to your letter, the Palm Beach County Association o£ Chiefs o~ Police ha~ reviewed the model ~utualai~ agreements from the Florida Department of Law Enforcement. You state that the association has used the combined o~emational assistance and voluntary cooperation version, except that the association has modified one of the sections to read as follows: "Should a sworn law enforcement officer be in another s~bscribed agency's ~urisdiotion for matters of a routine nature, such as traveling through the jurisdiction on routine buniness, attending a meeting or going to or from work, or t~ansporting a prisoner, and a violation of Florida Statutes occurs, which is a crime cf violence or £elony o£ any nature, in the presence of said party, representing his/her respective agency, he/she shall be empowere~ to render enforcement assistance and act in accordance with the law. Should enforcement action be taken, said party shall notify the agency haviag normal jurisdiction and upon the letter's arrival, turn the situation over to them and offer any assistance requested including, but not limited to, a follow-up written re~ort documenting the event and the actions taken· This provision eo prescribed i~ this paragraph is not i~tended to grant general authority to conduct investigations, serve warrants and/or subpoenas or to respond without request to emergencies already being addressed by the agency of normal ~WOM:attw Ben librmrw TO: 561 243 7815 DEC 1, 1997 3:lTPM P.03 jurisdiction, but is intended to address critical, life-threatening or public safety situations, prevent bodily injury to citizens, or secure apprehension of criminals whom the law enforcement officer may encounter." The 8tats Attorney for your judicial circuit, however, has expressed his =ontoern that the above language goes beyond the scope of the Florida ~i~ ACt in that it authorizes an officer to act as a law enforcement officer outside the officer's jurisdiction without a apecific request by the agency having jurisdiction. Yo~, therefore, request clarification from this office. The powers of a municipality, including its police powers, generally cease at the municipal boundaries and cannot, absent statutory authorization, be exercised outside the city's limits.[1] This office, for example, has stated that a municipal police officer has no power or authority to act as a police office~ in any part of the state outside the corporate limits of the city where the officer ks employed and any such action by the officer would be subject to review as if it were the action of a private citizen. J2] Part I, Chapter 23, Florida..Statmtes, the "~iorida~&%uai"'~i~ Act," creates state law enforcement ~utual ai~ plan tha~pro~ides..£or the coordination of law enforcement planning, operations, and~ut~al...aid across jurisdictional lines. J3] To carr~ out this plan, the Legislatqre has_found it necessary to "allow a law enforcement agency to enter into amutual ai~agreement with another law enforcement agency of this state or any other state or with any law enforcement agency of the United States or its territories."[4] Section 23.127(1), Florida Statutes, provides that law enforcement office~s.renderin~g aid outside their jurisdiction but within the state pursuant to a mutual, aid agreement have the same powers as if they were performing such duties within their jurisdiction. S~ction 23..12~5(1), Florida Statutes (1996 Supplement), provides that the term "~u~ual.ai~ agreement" for purposes of the act refers to one of the following types of agreements: "(a) A voluntary cooperation written agreement between two or more law enforcement agencies or between one or more law enforcement agencies and a school board that employs school safety officers which permits voluntary cooperation and assistance of a routine law ~nforoement nature across jurisdictional lines. The agreement must specify the nature of the law enforcement assistance to be rendered, the agency o~ entity that shall bear any liability arising from acts undertaken under the agreement, the procedures for requesting and for authoriming assistance, the agency or entity that has command and supervisory responsibility, a time limit for the agreement, the amount of any compensation or reimbursement to the assisting agency or entity, ~nd any other term~ and conditions necessary to give it effect. Examples of law enforcement a~tivities that may be addressed in a voluntary cooperation written agreement include establishing a joint city-county ta~k force on narcotics smuggling or authorizing school safety officers to enforce laws in an area within 1,000 feet of a school or school board property. (b) A r~q~ested operational assistance written agreement between two or more law enforcement agencies or between one or more law enforcement agencies and a school board that employs school safety officers for the rendering of assistance in a law enforcement e~ergenoy. The agreement must specify the nature of the law enforcement assistance tO be rendered, the agency or entity that shall bear any liability arising from acts undertaken under the agreement, the procedures for requesting and for authorizing assistance, the agency or entity that has command and supervisory responsibility, a time limit for the agreement, the amount of any compensation or reimbursement to the FROM:attW Ben librarW TO: 561 243 9815 DEC 1, 1999 J:16PM P.02 assisting agency Or entity, and any other terms and conditions necessary to give it effect. An example of the use of a requested operational assistance written agreement is to meet a request for assistance due to a civil disturbmnce or other emergency as defined in 2~2.34. (c) A combination of the agreements described in paragraphs (aP and (bp." This office has stated that the use of a ~u~ual....ai~ agreement does not contemplate a complete assumption of law enforcement services by an assisting law enforcement agency ~ut..is...mor~ limited in scope. J5] As recognized by the act itself, the use of ~utual &id agreements should more appropriately be confined to specific law enforcement activities in which two or more law enforcement agencies jointly provide assistance to each other. The proposed agreement in the instant inquiry seeks to establish cooperation and assistance of a primarily routine law enforcement nature across jurisdictional lines as provided in section 23..1225(1) (ap, Florida Statutes {1996 Supplement}.[6] While the statute requires that the agreement specify "the procedures for requesting an~ for authorizing assistance," the proposed agreement itself appears to constitute the request for and authorization of the type of assistance specified therein. It specifies the instances in which the law enforcement officer may act, i.e., when the officer personally observes a felony or crime of violence and sets forth the procedures to be followed by requiring the officer to notify the agency having normal jurisdiction and to turn over the sltuat~on to that agency ~pOn the arrival of its officers. This office has been advised by the Florida.Department of Law Enforcement that such provisions are commonly used in ~utual ai~ agreements throughout the state. J7] Moreover, the model a~reement developed by the Florida Department of Law Enforcement contains language permitting a sworn law enforcement officer in another participating agency's jurisdiction who witnesses a violation of Florida law to render enforcement assistance. J8] Like the proposed agreement in the instant inquiry, the model agreement requires the officer to notify the agency having normal jurisdiction and upon the letter's arrival, to turn over the situation and offer any assistance required. Unlike the model agreement, however, the propose~ agreement limits an officer's authority to act on felonies and crimes of violence rather than any violation Of Florida Law. In light of the above, I a~...of._the.o~inion that municipal law enforcement agencies may enter i~to a ~utual aid agreement that provides that if a municipal police officer is in another subscriber's jurisdiction and observes a crime of violence or felony, %he officer may exercise authority as a sworn law enforcement officer. Sincerely, Robert A. Butterworth Attorney General aAB/tgk [1] See, ~.g., R~mer v. State, 530 So. 2d 915 (Fla. 1988) (city police officer lacked authority to seize vehicle on private property outside city ~ROM:attW Ben librarW TO: 561 24~ 9815 DEC 1, 1999 3:15PM P.O1 l~mits)~ Collins v. State, 143 So. 2d 700 (Fla. 2d DCA 1962), ce~. denied, 148 So. 2d 280 (Fla. 1962). Cf., Art. VIII, s. 2(o), Fla. Const., providing that municipalities may exercise extraterritorial powers only if authorized by gene=al or special law; and s. 166.021(3) (a), Fla. Stat., stating that municipal home rule powers do not extend to "the subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution[.]" [2] See, Op. Att'y =eh. Fla. 71-72 (1971}. Sut see, s. 901.25(2), Fla. Stat. (municipal police officer authorized to make arrests outside officer's jurisdiction, if in fresh pursuit); s. 901.252, Fla. Stat. (municipal police officer may patrol municipally-owned property located outside municipal boundaries and when p~obable cause to believe person has committed or is committing a violation of law on such property or facilities, the officer may take the person into custody). [3] Section 23. 121 (1) (&) ,Fla, Stat. [4] Section 23. 121{1) (g), Fla. S~at. And isee, s. 23. 121 (1) , Fla. Stat. , stating the need for the Florida ~utual Ai~ Act: "Because of the existing and continuing possibility of the occurrence of natural or manmade disasters or emergencies and other major law enforcement problem~, including those that cross jurisdictional lines, and in order to ensure that preparations of this state will be adequate to deal with such activity, protect the public pesce and safety, and preserve the lives and property of the people of this state[.]" [5] Attorney ~eneral Opinion 96-78 (1996). And see, Op. Att~y ~en. Fla. 90-84 {1990). [6] See, Op.. Att'y ~en. Fla. 82-52 (1982) (law enforcement services provided pursuant to ~utual.ai~agreement do ~ot require "cross swearing" of officers); 0p. Att'y Gen. Fla. 72-178 (1972). [[.1~ See, s. 23.1225(4), Fla. Stat. (1996 8up~.), stating that a copy of a ~u.~al_aid~ agreement must be filed with the Department of Law Enforcement within 1~ days after it ~s signed. [8] Co~ined Voluntary Cooperation and C~erational Assistanca A&greement, s. iii, dated Feburary 1997. PALM BEACH COUNTY LAW ENFORCEMENT AGENCIES COMBINED OPERATIONAL ASSISTANCE AND VOLUNTARY COOPERATION MUTUAL AID AGREEMENT WITNESSETH WHEREAS, the subscribing Law Enforcement Agencies as listed in Attachment I, which is incorporated by reference, are so located in relation to each other that it is to the advantage of each to receive and extend mutual aid in the form of law enforcement services and resources to adequately respond to: (1) Intensive situations, including, but not limited to, emergencies as defined under Section 252.34, Florida Statutes, and (2) Continuing, multi-jurisdicational law enforcement problems, so as to protect the public peace and safety, and preserve the lives and property of the people; and, WHEREAS, the subscribing Law Enforcement Agencies have the authority under Section 23.1225, Florida Statutes, et. seq., The Florida Mutual Aid Act, to enter into a combined mutual aid agreement for law enforcement service which: (1) Permits voluntary cooperation and assistance of a routine law enforcement nature across jurisdictional lines, and; (2) Provides for rendering of assistance in a law enforcement emergency as defined in Section 252.34. WHEREAS, it is in the interest of public safety to allow sworn Law Enforcement Officers to act when witnessing a violent crime in progress. NOW, THEREFORE, THE AGENCIES AGREE AS FOLLOWS: SECTION I: PROVISIONS FOR OPERATIONAL ASSISTANCE The subscribed Law Enforcement Agencies hereby approve and enter into this Agreement whereby each of the agencies so represented may request and render law enforcement assistance to the other to include, but not necessarily be limited to, dealing with civil disturbances, large protest demonstrations, aircraft disasters, fires, natural or man-made disasters, sporting events, concerts, public school graduations, parades, escapes from detention facilities, and incidents requiring utilization of specialized units. SECTION I1: PROVISIONS FOR VOLUNTARY COOPERATION Each of the subscribed Law Enforcement Agencies hereby approve and enter into this Agreement whereby each of the agencies may request and render law enforcement assistance to the other in dealing with any violations of Florida Statutes to include, but not necessarily be limited to, investigating homicides, sex offenses, robberies, assaults, burglaries, larcenies, gambling, motor vehicle thefts, controlled substance violations, pursuant to Chap-- Statutes, DUI violations, backup services during patrol activities, School Police Officers enforcing laws within 1000 feet of a school or School Board property, and inter-agency task forces and/or joint investigations. SECTION II1: PROCEDURE FOR REQUESTING ASSISTANCE In the event that an agency that is a party to this Agreement is in need of assistance set forth above, such agency shall notify the agency or agencies from whom such assistance is required. The Agency Head or his/her authorized designee whose assistance is sought shall evaluate the situation and his/her available resources and will respond in a manner he/she deems appropriate. The Agency Head in whose jurisdiction assistance is being rendered may determine who is authorized to lend assistance in his/her jurisdiction for how long such assistance is authorized and for what purpose such authority is granted. This authority may be granted either verbally or in writing as the particular situation dictates. Should a sworn law enforcement officer be in another subscribed agency's jurisdiction for matters of a routine nature, such as traveling through the jurisdiction on routine business, attending a meeting or going to or from work, or transporting a prisoner, and a violation of Florida Statutes occurs, which is a crime of violence, in the presence of said officer, he/she shall be empowered to exercise authority as a law enforcement officer as if the officer was in his/her own jurisdiction. Should enforcement action be taken, said officer shall notify the agency having normal jurisdiction and upon the latter's arrival, turn the situation over to them and offer any assistance requested including, but not limited to, a follow-up written report documenting the event and the actions taken. This provision so prescribed in this paragraph is not intended to grant general authority to conduct investigations, serve warrants and/or subpoenas or to respond without request to emergencies already being addressed by the agency of normal jurisdiction, but is intended to address critical, life-threatening or public safety situations, prevent bodily injury to citizens, and/or secure apprehension of criminals whom the law enforcement officer may encounter. The Agency Head's decision in these matters shall be final. Mutaid pb agtfdoc~/ag reemen LAO November 1997 SECTION IV: COMMAND AND SUPERVISORY RESPONSIBILITY The personnel and equipment that are assigned by the assisting agency head shall be under the immediate command of a supervising officer designated by the assisting agency head, such supervising officer shall be under the direct supervision and command of the agency head or his/her designee of the agency requesting assistance. CONFLICTS Whenever a Law Enforcement Officer is rendering assistance pursuant to this Agreement, the Law Enforcement Officer shall abide by and be subject to the rules and regulations, personnel policies, general orders and standard operating procedures of his/her own employer. If any such rule, regulation, personnel policy, general order or standard operating procedure is contradicted, contravened or otherwise, in conflict with a direct order of a superior officer of the requesting agency, then such rule, regulation, policy, general order or procedure shall control and shall supersede the direct order. HANDLING COMPLAINTS: Whenever there is cause to believe that a complaint has arisen as a result of a cooperative effort as it may pertain to this Agreement, the Agency Head or his/her designee of the requesting agency shall be responsible for the documentation of said complaint to ascertain at a minimum: 1. The identity of the complainant. 2. An address where the complaining agency can be contacted. 3. The specific allegation. 4. The identity of the employees accused without regard to agency affiliation. If it is determined that the accused is an employee of the assisting agency, the above information with all pertinent documentation gathered during the receipt and processing of the complaint shall be forwarded without delay to the Agency Head or his/her designee of the assisting agency for administrative review. The requesting agency may conduct a review of the complaint to determine if any factual basis for the complaint exists and/or whether any of the employees of the requesting agency violated any of their agency's policies or procedures. SECTION V: LIABILITY Each agency engaging in any mutual cooperation and assistance, pursuant to this Agreement, agrees to assume responsibility for the acts, omissions, or conduct of such agency's employees while engaged in rendering such aid Mutaidpb ag*Jdocs/agreemen 3 LAC November 1997 pursuant to this Agreement, subject to the provisions of Section 768.28, Florida Statutes, where applicable. SECTION VI: POWERS, PRIVILEGES, IMMUNITIES AND COSTS A. Employees of each participating Law Enforcement Agency, when actually engaging in mutual cooperation and assistance outside of their jurisdictional limits, but inside the State of Florida, under the terms of this Agreement, shall, pursuant to the provisions of Section 23.127(1), Florida Statutes, have the same powers, duties, right, privileges and immunities as if the employee was performing duties inside the employee's political subdivision in which normally employed. B. Each agency agrees to furnish necessary personnel, equipment, resources and facilities and to render services to each agency to the Agreement as set forth above; provided however, that no agency shall be required to deplete unreasonably it's own personnel, equipment, resources, facilities and services in furnishing such mutual aid. C. A political subdivision that furnishes equipment pursuant to this part must bear the cost of loss or damage to that equipment and must pay any expense incurred in the operation and maintenance of that equipment. D. The agency furnishing aid pursuant to this section shall compensate it's employees during the time such aid is rendered and shall defray the actual travel and maintenance expenses of it's employees while they are rendering such aid, including any amounts paid or due for personal injury or death while such employees are engaged in rendering such assistance. E. The privileges and immunities from liability, exemption from laws, ordinances and rules, and all pension, insurance, relief, disability, workers' compensation, salary, death and other benefits that apply to the activity of an employee of an agency when performing the employee's duties within the territorial limits of the employee's agency apply to the employee to the same degree, manner, and extent while engaged in the performance of the employee's duties extraterritorially under the provisions of this Mutual Aid Agreement. The provisions of this section shall apply with equal effect to paid, volunteer, auxiliary, and reserve employees. F. Nothing herein shall prevent the requesting agency from requesting supplemental appropriations from the governing authority having budgeting jurisdiction to reimburse the assisting agency for any actual costs or expenses incurred by the assisting agency performing hereunder. Mutaid pb agtJdocs/agreemen 4. LAO November 1997 G. Nothing in this Agreement is intended or is to be construed as any transfer or contracting away of the powers of functions of one party hereto to the other. SECTION VIII: EFFECTIVE DATE This Agreement shall take effect upon execution and approval by the hereinafter named officials and shall continue in full force and effect until December 31, 2000. Under no circumstances may this Agreement be renewed, amended, or extended except in writing. SECTION VIII: CANCELLATION Any agency may cancel their participation in this Agreement upon delivery of written notice to the other agencies. Cancellation will be at the direction of any subscribing agency. IN WITNESS WHEREOF, the agencies hereto cause these presents to be signed on the date specified. Mutaidpb.agtJdocs/agreemen LAO November 1997 ATTEST: CITY OF ATLANTIS: William P. Howell, Mayor (date) Robert G. Mangold, Chief of Police (date) (date) (date) CITY OF BELLE GLADE: J. Stephen Weeks, Mayor (date) Michael R. Miller, Chief of Police (date) (date) (date) CITY OF BOCA RATON: Carol G. Hanson, Mayor (date) Peter Petracco, Chief of Police (date) (date) (date) CITY OF BOYNTON BEACH: Gerald "Jerry" Taylor, Mayor (date) Marshall B. Gage, Chief of Police (date) (date) (date) Mutaidpb.agt/docs/agreemen LAO November 1997 CITY OF DELRAY BEACH: Jay Alperin, Mayor date) Richard G. Overman,Chief of Police (date) City Clerk (date) City Attorney (date) Approved as to form and Legal Sufficiency: City Attorney - Delray Beach CITY OF GREENACRES: Samuel Ferrari, Mayor (date) John T. Treanor, Director of Public Safety (date) (date) (date) TOWN OF GULFSTREAM William Koch, Jr. Mayor (date) Robed Schultz, Chief of Police (date) Scott Harrington, Town Manager (date) (date) TOWN OF HIGHLAND BEACH: Arlin Voress, Mayor (date) Anthony M. Cervasio, Chief of Police (date) Mary Ann Marino, Town Manager(date) (date) M utaid pb.agtJdocs/ag reemen 7 L.AO November 1997 TOWN OF JUNO BEACH: Frank W. Harris, Mayor (date) Mitchell L. Tyre, Chief of Police (date) Gail F. Nelson, Town Manager(date) (date) TOWN OF JUPITER: Karen J. Golonka, Mayor (date) Richard Westgate, Chief of Police (date) (date) (date) TOWN OF JUPITER INLET COLONY: Nicholas, Porto, Mayor (date) Randall J. Parker, Chief of Police (date) (date) (date) TOWN OF LAKE CLARKE SHORES: Robert M.W. Shalhoub, Mayor (date) Michael A. Bruscell, Sr., Chief of Police (date) (date) (date) Mutaidpb agtJdocs/agreemen LAO November 1997 TOWN OF LAKE PARK: William H. Wagner (date) Jeffrey Lindskoog, Chief of Police (date) (date) (date) CITY OF LAKE WORTH: Thomas Ramiccio, Mayor (date) William Smith, Chief of Police (date) (date) (date) TOWN OF LANTANA: Ronald M. Ferds, Town Manager (date) Robed W. Chalman, Jr., Chief of Police (date) (date) (date) TOWN OF MANALAPAN: Gerald Kent Shortz, Town Manager (date) William W. Smith, III (date) Director of Public Safety (date) (date) M utaid pb agtJdocs/ag reernen LAO November 1997 TOWN OF MANGONIA PARK: Gale M. English, Mayor (date) Joseph VonDembowski, Chief of Police (date) (date) (date) VILLAGE OF NORTH PALM BEACH: Gall H. Vastola, Mayor (date) Bruce F. Sekeres, Chief of Police (date) (date) (date) TOWN OF OCEAN RIDGE: George D. Stamos, Mayor (date) Edward G. Hillery, Jr., Chief of Police (date) (date) (date) CITY OF PAHOKEE: Ramon Horta, Mayor (date) Carmen Salvatore, III, Chief of Police (date) Kenneth Schenck, City Manager (date) (date) Mutaidpb agtJdocs/agreemen tO L.AO November 1997 TOWN OF PALM BEACH: Paul R. liyinsky, Mayor (date) Joseph L. Terlizzese, Chief of Police (date) Robed J. Doney, Town Manager (date) Lesly Smith, President, Town Council (date) PALM BEACH COUNTY SHERIFF'S OFFICE: (date) Robed W. Neumann, Sheriff (date) (date) (date) PALM BEACH COUNTY SCHOOL DISTRICT: Paulette Burdick, Chairman (date) James P. Kelly, Chief of School Police (date) Joan P. Kowal, Superintendent (date) (date) CITY OF PALM BEACH GARDENS: Joe Russo, Mayor (date) James O. FitzGerald, Chief of Police (date) (date) (date) Mutaidpb agVdocs/agreemen [ ] L.AO November 1997 TOWN OF PALM BEACH SHORES Thomas C. Chilcote, Mayor (date) Roger K. Wille, Chief of Police (date) (date) (date) VILLAGE OF PALM SPRINGS: John M. Davis, Mayor (date) Karl E. Umberger, (date) Director of Public Safety Joseph L. Gallegos, (date) (date) Village Manager CITY OF RIVIERA BEACH: Clara K. Williams, Mayor (date) Jerry P. Poreba, Chief of Police (date) (date) (date) VILLAGE OF ROYAL PALM BEACH: Tony Masilotti, Mayor (date) Phillip Redstone, Chief of Police (date) (date) (date) Mutaidpb agt/docs/agreemen ! 2 L.AO November 1997 CITY OF SOUTH BAY: Clarence E. Anthony, Mayor (date) Michael E. Jackson, City Manager (date) (date) (date) VILLAGE OF TEQUESTA: Elizabeth A. Schauer, Mayor (date) Stephen J. Allison, Chief of Police (date) (date) (date) TOWN OF SOUTH PALM BEACH Margot Roberts, Mayor (date) Roger M. Crane, Chief of Police (date) (date) (date) CITY OF WEST PALM BEACH: Nancy M. Graham, Mayor (date) Ric L. Bradwshaw, Chief of Police (date) (date) (date) Mutaidpb ag'ddocs/agreemen ]. 3 LAO November 1997 Attachment I Atlantis Police Department Belle Glades Police Department Boca Raton Police Department Boynton Beach Police Department Delray Beach Police Department Greenacres Police Department Gulfstream Police Department Highland Beach Police Department Juno Beach Police Department Jupiter Police Department Jupiter Inlet Colony Police Department Lake Clarke Shores Police Department Lake Worth Police Department Lantana Police Department Manalapan Police Department Mangonia Park Police Department North Palm Beach Police Department Ocean Ridge Police Department Pahokee Police Department Palm Beach Police Department Palm Beach County SherifFs Office Palm Beach County School District Police Department Palm Beach Gardens Police Department Palm Beach Shores Police Department Palm Springs Police Department Riviera Beach Police Department Royal Palm Beach Police Department South Bay Police Department Tequesta Police Department West Palm Beach Police Department Mutaidpb agt/docs/agreemen ! 4 LA.O November 1997 MEMORANDUM TO: DAVID T. HARDEN, CITY MANAGER THROUGH: LULA BUTLER, DIRECTOR, COMMUNITY IMPROVEMENT FROM: NANCY DAVILA, HORTICULTURIST RE: 1-95 SOUND BARRIER WALL LANDSCAPING REQUEST FOR FINAL PAYMENT TO SIGA INCORPORATED DATE: DECEMBER 1, 1997 ITEM BEFORE THE COMMISSION The item before the City Commission is the request for final payment from Siga Incorporated, in the amount of $8,288.74 for landscape improvements to the 1-95 Sound Barrier Wall. BACKGROUND The inspection for Substantial Completion was done on October 13, 1997 and a list of deficiencies were given to Siga Incorporated and appeared to have been completed upon inspection on October 27, 1997. I have attached a copy of the Final Payment Request Form along with the Final Receipt. Siga Incorporated will continue to water and maintain this landscaping for a six month period which commenced on October 22, 1997 and will run through April 22, 1998. A separate Purchase Order has been established for this contractual maintenance period. RECOMMENDATIONS Staff and the City's Consultant, Land Design South have found that Siga Incorporated has installed the landscaping along the 1-95 Sound Barrier Wall per the approved plans and specifications and recommends the City Commission give favorable consideration to their request for final payment in the amount of $8,288.74, Purchase Order # 560618. 12/1/97 Date: Agenda Item No. [7 .~ , AGENDA REQUEST Agenda request to be placed on: X Regular ~ Special __ Workshop ~ Consent When: 12/9/97 Description of Agenda Item: Request for Final Payment to S±ga Inc for Landscape Improvements to the 1-95 Sound Barrier Wall Payment amoutn $8,288.74 Ordinance/Resolution Required: Yes N~ Draft Attached: Yes / No Recommendation: Department Head Signature /t,ff City. Attomey Review/Recommendation (if applicable) Budget Director Review (required on all items involving expenditure of funds): Funding Available: ~ No Funding Alternatives.':-" (if applicable) Account # & Description: '~.~-q lc[ti -~.q Z, ~ 3- 25q ~-q-~ ~t,cr~c .¢~c~{i'>--~a~. Account Balance: City Manager Review: Approved for agenda: ~/. No Hold Until: Agenda Coordinator Review: Received: Action: Approved / Disapproved 1/17/96 MEMORANDUM TO: DAVID T. HARDEN, CITY MANAGER THROUGH: LULA BUTLER, DIRECTOR, COMMUNITY IMPROVEMENT FROM: NANCY DAVILA, HORTICULTURIST RE: 1-95 SOUND BARRIER WALL LANDSCAPING REQUEST FOR FINAL PAYMENT TO SIGA INCORPORATED DATE: DECEMBER 1, 1997 ITEM BEFORE THE COMMISSION The item before the City Commission is the request for final payment from Siga Incorporated, in the amount of $8,288.74 for landscape improvements to the 1-95 Sound Barrier Wall. BACKGROUND The inspection for Substantial Completion was done on October 13, 1997 and a list of deficiencies were given to Siga Incorporated and appeared to have been completed upon.inspection on October 27, 1997. I have attached a copy of the Final Payment Request Form along with the Final Receipt. Siga' Incorporated will continue to water and maintain this landscaping for a six month period which commenced on October 22, 1997 and will run through April 22, 1998. A separate Purchase Order has been established for this contractual maintenance period. RECOMMENDATIONS Staff and the City's Consultant, Land Design South have found that Siga Incorporated has installed the landscaping along the 1-95 Sound Barder Wall per.the approved plans and specifications and recommends the City Commission give favorable consideration to their request for final payment in the amount of $8,288.74, Purchase Order # 560618. PURCHASE ORDER ~' mDF~~C "' .. PURCHASING DIVISION 100 .N..W. F!RST.,A. VE. NUEjwj,-J SIGA INCORPORATED .City. O~,~.De~,ra7 Beach,Florida Jo00 DAVIE :~OAD CITY 'HA~5:,:.....' DAVIE FL" 3331~-.6e~,~ COMMUNITY ~I'.~ROVEMENT 751&0.62 ;;'..._ ;..i__'ATION OF LANDSCAPE MA E~:l:.i~.l:? .... .., ............ ,;,:.:: ....~, 751&0.62 DESIGCqED-----"---,BY LAND DESI-" '-OU"'"GN S TH ....... °:;'" ........ : ...... 'P~ERr'.''';:zD ..... ' ..... '-'~ ..... - ......... '." """ ............. ' ..~,...___ NO APPROVED BY CTTY COMMI$SI'ON 07/~1/97 .... · ~ ...... ,o ~;,,,'...:, .) ::~., , ........ - , 75160.62 REMaRKs: . ' LANDSCAPE M~INT. PORTION~,,TO,',',BE UNDER SEPERATE PURCHASE ORDER :to~z~:~ ~'z::~ ~,~: ' ;', ~ · ~ z:,~ ~ ~. =,:.:~ : :- ,,~,.: .iA"" .... ~.-, ~(~ ~.: :., ,'.b · .; h~'l~!l~ -.~ ~1~-~ '~d~ ~o ~.e~ ); ~5-;;; .':~l{.~: ' & TM.¢~'~ - .~;r -. - CITY OF ACCOUNTS;PAYABLE - 100 N.W. Ist AVENUE DELRAY BEACH; FLORIDA 33444 ....... ..... ~' ,,*, ,,*",~ · ~,','. '~;".*""- ' :"':'?~'" '~ ·; ,~ · .. CERTeS'ICA'rE SO. ~.-el-U~Z4~-S4C ,.,-----AUTHORIZED SIGNATURE oeo,ce SUtU~':CT ro TERMS ANt) com)trtoss AS oN ~ev~.es~ on AI~I'ACIIE9 REQUISITIONING DEPT. '11-19-1997 4:42P~ FROM SIGA INCORPORATED 954 797 0670 P. 2 FINAl, RECEIPT STATE OF FLOR.IDA COUNTY OF (L) /,0_ /?~,~_'D L, ~'(,,~, ~f' ~in~ fir~ d~y swo~ d~s~s ~d ~ys ~ follows: ~ of ~ration or Fire) a ~Co~ ~ b ~ co.ration w~ch is ~ ia Coasuucti~ Con.act dated tt~e ~ ~ day of .._ ~ . 19~__, ~tween ~id co.ration ~ ~e CONT~CTOR ~d th~ CITY OF DE~Y ~EACH, FLO~DA (~e CITY) ~ ~e O~ER for fl~c construc- tion off !-95 SOlD B~R W~LS ~NDSC~ING CITY OF DEL~Y BEACH PROJgCT NO. 96-~3 2. CONT~CTOR h~ fully ~mpletcd ~1 gons~uction and work under flsg Con- tract ~d Tifl~ to all work, materials and eq~pment ~der ~o Con.act p~ses ~o ~he CITY at the time of final paym~ng fie~ ~d cle~ of ~1 li~ns. ~d all hbors, ~d ~:mterial mc~ ~d sub~n- uactors have ~ea paid ~ ~1 for ~rfo~in8 or ~i~ng ~ work, lair or mac.rials ~der Con.ct. 3, R~ip~ by CONT~CTOR of ~ flail paymem flora CITY $~ g ~ ~. ~ ..... shall constitute a ~11 gl~e ~d di~hgge by CONT~FOR to flic CI~ ~ alI el&ms or liens of CONT~CTOR agent O~ER ~sing out of, ~nnectcd wi~h, or wsulting ~om ~ffo~ce of ~g Con.act, including ~11 paym~m for &l ~x~a work ~d ma- rtial ~sh~ by ~e ~rsig~d in ~ ~ns~tion of~d improvements. 4, ~e ~signed ~er ~gifies ~al fll nonexempt ~ im~s~ by Chapter 212, Flofi& Statutes (Sales ~ Use T~ Ac0. as ~ended, have ~en ~id ~d di~hargcd. FR-1 i i-i~-'l~/' 4:,42PM FRQh~ SIGA INCORPORATED 9.54 797 BG70 ~.3 5. This statement under oath is given in compliance with Sections 713.05 and 713.06, Florida Statutes. Affiant Contractor Signed and sealed in , . , / the pre~ence of: ....... Title Sworn to and subscribed betbre me thi~ ..._/~'r~/day of ..'~¢..¢-~-¢./~ , fi~te of Florida My Co~ission Expires; SEAl,) FR-2 I~ $1GA Incorporated 5500 OAVIE ROAD OAV~E. FLORIOA 33314-6009 TELEPHONE 305-$81-3~75 I~AX 30~-797-0670 November 15, 1997 City of Delray Beach 100 N. W. 1st. Avenue Delray Beach, Florida 33444 Aeon: Nancy Davlla: RE: 1-95 Sound Barrier Walls Lamdscaping Dear Nancy: Following iS the list of documents meeded for the Contract Closeout: Project Title: 1-95 Sound Bar~ie~ Walls Landscaping Project No, 96-043 Document At=ached: Final Receipt (Release of L£en) Contractor: Siga Incorporated 5300 Davle Road Davie, Florida 33314 0n November 10, 1997 we ~eceived a check in the a~o~nc of $66,871.88, which represented the amoumt due on our Application #1. The amount of paymem~ now d~e is $8,258.74, which ~ep~esents the final paymemt. 'We ~r~$c this is the i~for~ation needed for the closeo~t of the contract. Wtnifred L, $igar$, Chairman/CEO WLS/mb Enclosures: [ITY JIF I]ELIlI3Y BEI:I[H DELRAY BEACH ~ 100 N.W. 1st AVENUE · DELRAY BEACH, FLORIDA 33444 · 407/243-7000 AII-AmericaCity 993 Mr. Mark Sigars Siga, Incorporated 5500 Davie Road Davie, Florida 33314 Re: 1-95 Sound Barrier Wall Landscaping- Bid # 97-29 NOTICE OF SUBSTANTIAL COMPLETION Dear Mark: The inspection of the landscape installation for the 1-95 Sound Barrier Walls on Monday, October 13, 1997, with you and Brad Swanzey from Land Design South, found the project to be substantially complete with the exception of only minor items as noted below: · Relocate Seagrape shrubs within planting masses that are too close to the sound barrier wall. · Relocate Oleander bushes as discussed to provide better balance of the underplantings. · Complete mulching and clean-up. Per the contract you have 14 days to correct the deficiencies and to call the City for inspection for Final Completion. Acceptance for final completion will constitute the beginning of the 6 month maintenance/watering pedod. I have discussed your proposed maintenance schedule with Brad and we feel that the application of the fertilizer and mulch around the middle of February instead of January would be more desirable. Please let me know if this is acceptable to you. If so, once we have signed off for final completion and we know the actual date the maintenance period will commence, please revise your maintenance schedule to reflect the change of dates and change of month for fertilizer application. I would also like to mention that even though you have not specifically mentioned spraying for pest and disease control, per Landscape Specification Section 2900, 3.02 P, 1, you will be responsible for pest and disease control measures, should the need arise. Please include monthly inspections of the plant.materials to ensure plants are THE EFFORT ALWAYS MATTERS Pr~nted o~ Recycled Paper disease and insect free and if outbreaks of pests or disease are noted please take active control measures. Once the project has been accepted for Final Completion you may request final payment. I have already initiated the paperwork for the issuance of the new Purchase Order for the maintenance period. Please contact me as soon as the punch list items have been completed so we can schedule a final inspection. Yours truly, ancy Davila Horticulturist MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~,.~! SUBJECT: AGENDA ITEM ~ ~'~ - MEETING OF DECEMBER 9, 1997 CHANGE ORDER #1 AND FINAL PAYMENT/MAN CON, INC. DATE: DECEMBER 5, 1997 This is before the Commission to approve deduct Change Order #1 in the amount of $220 and final payment in the amount of $184,729 to ManCon, Inc. for S.E. 4th Street infrastructure improvements. This Change Order final includes as-built measured quantity adjustments as compared to the original contract. Recommend approval of the deduct change order #1 and final payment to ManCon, Inc., with funding from Renewal and Replace- ment (Account No. 442-5178-536-61.78). Agenda Item No.: ~.~' AGENDA REQUEST Date: December 4, 1997 Request to be placed on: X Regular Agenda Special Agenda Workshop Agenda When: December 9, 1997 Description of item (who, what, where, how much): Staff requests City Commission to approve add Change Order #1 to ManCon, Inc. for the SE 4thee St Infrastructure Improvements - (95-29). It encompasses the final Contract plus/minus as-built quantity adjustments and is for a net deduct of $220.00. Approval is also requested for final payment to be made to ManCon, Inc. in the amount of $184,729.00. A Contractor Evaluation is attached for review. Funding Source is from 442-5178-536-61.78 W/S R&R Water and 448-5411-538-62.34 SE 3rd Ave and SE 4th St Drainage. ORDINANCE/RESOLUTION REQUIRED: YES/NO DRAFT ATTACHED YES/NO Recon~nendation: Staff Recommends approval of the Contract Addition (C.C. #1) and final payment to ManCon, In .~,~~ /~~ ~_ Determination of Consistency with Comprehensive Plan: City Attorney Review/Recon~nendation (if applicable): Budget Director Review (r~cf~ired on all items involving expenditure of funds): /~ Funding available: ,~Y~NO ~-~Q~ Funding alternatives~'~ (if a~Dplicable) ~\ Account No. & ~ Account Balance ~ ~1~. ~0~5 ~L~ ' ' City Manager Review: Approved for agenda: ~/NO Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Dis approved /agen9612 .doc Memorandum To: David T. Harden, City Manager From' Howard Wight, Dep Dir Construction Divisi~ Date: December 4, 1997 Re: SE 4th Street Infrastructure Improvements (Project 95-29) Final Closeout Change Order and Payment Request Attached for Commission approval is an agenda request for closeout Change Order #1, Final to ManCon, Inc. on the above referenced Project. It encompasses the final Contract plus/minus as-built quantity adjustments and is for a net deduct of $220.00. A detailed listing of the adjustments are listed on Schedule "A" attached to the Change Order. Also attached for Commission approval is an agenda request for final payment to ManCon, Inc. in the amount of $184,729.00. A Contractor Evaluation is attached for your review. File: Memo to City Manager 9529A :finalpay CITY OF I)ELRAY BEACH CHANGE ORDER TO ORIGINAL CONTRACT CHANGE NO. 1, Final PROJECT NO. 95-29 DATE: PROJECT TITLE: SE 4th Street Infrastructure Improvements TO CONTRACTOR: ManCon, Inc. YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. JUSTIFICATION: Final Plus/Minus As-built Quantity Adjustmem per Schedule "A" Attached SUMMARY OF CONTRACT AMOUNT ORIGINAL CONTRACT AMOUNT $184,949.00 COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED $ 0.00 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER $184,949.00 COST OF CONSTRUCTION CHANGES THIS ORDER $ -220.00 ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER $184,729.00 PER CENT DECREASE THIS CHANGE ORDER .2% TOTAL PER CENT DECREASE TO DATE .2% CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opinion, accurate. ManCon, Inc. Funding Source: 442-5178-536-61.78 W/S R & R Water Distribution Improvements; and 448-5411-538-62.34 SE 3rd Ave and SE 4th St Drainage DELLRAY BEACH, FLORIDA by its City Commission RECOMMEND: By: for Environmental Services Jay Alperin, Mayor ATTEST: APPROVED: By: City Attorney City Clerk SE 4th St Infrastructure Improvements PROJECT NO. 95-029 Schedule A NO. DESCRIPTION UNIT CONTRACT UNIT PRICE TOTAL PRICE AS-BUILT UNIT PRICE TOTAl. PRICE QTY. QTY. 1 Maintenanoe of traffic LS 1 $2,500.00 $2,500.00 1 $2,500.00 $2,500.00 2 Clearing and grubbing LS 1 $5,000.00 $5,000.00 1 $5,000.00 $5,000.00 3 1 ½" Type S-I asphalt SY 2,000 $4.00 $8,000.00 1,844 $4.00 $7,376.00 4 8" Limerook base SY 2,100 $8.00 $16,800.00 1,844 $8.00 $14,752.00 5 12" Stabilized Subgrade (98% ,T-180) SY 2,200 $2.00 $4,400.00 1,932 $2.00 $3,864.00 6 1" Type S-III Asphalt Level & Overlay TON 175 $50.00 $8,750.00 238.1 $50.00 $11,905.00 7 Open Cut Pavement Repair LF 325 $15.00 $4,875.00 505 $15.00 $7,575.00 8 Asphalt Driveway Apron SF 800 $2.00 $1,600.00 716 $2.00 $1,432.00 9 Concrete Driveway Apron SF 3,000 $3.00 $9,000.00 3,259 $3.00 $9,777.00 10 Conorete Sidewalk SF 1,200 $2.75 $3,300.00 2,180 $2.75 $5,995.00 11 Type"D" omb LF 50 $13.00 $650.00 0 $13.00 $0.00 12 Pavement Marking and Signage LS 1 $2,000.00 $2,000.00 1.15 $2,000.00 $2,300.00 13 Roadside Swale Grading and Sodding SY 1,800 $4.00 $7,200.00 2,079 $4.00 $8,316.00 14 15" RCP drainage pipe LF 190 $21.00 $3,990.00 132 $21.00 $2,772.00 15 18" RCP drainage pipe LF 665 $24.00 $15,960.00 722 $24.00 $17,328.00 16 4' dia Manhole EA I $1,574.00 $1,574.00 1 $1,574.00 $1,574.00 17 Type"C" Inlet EA 9 $1,325.00 $11,925.00 9 $1,325.00 $11,925.00 18 Type "E" Inlet EA I $2,005.00 $2,005.00 I $2,005.00 $2,005.00 19 Conncct to Existing Drainage EA I $950.00 $950.00 I $950.00 $950.00 20 Remove Existing Watermain LF 1,125 $7.00 $7,875.00 1,043 $7.00 $7,301.00 21 8" DIP Water Mmin LF 1,625 $27.00 $43,875.00 1,410 $27.00 $38,070.00 22 8" Gate Valve EA 7 $592.00 $4,144.00 7 $592.00 $4,144.00 23 8" x 6" T.S. & Valve EA 1 $1,999.00 $1,999.00 1 $1,999.00 $1,999.00 24 Fire Hydrant, Valve & Box EA 3 $2,027.00 $6,081.00 3 $2,027.00 $6,081.00 25 Fill and Flush Assembly EA 1 $309.00 $309.00 1 $309.00 $309.00 26 Sample Point EA 5 $99.00 $495.00 5 $99.00 $495.00 27 2" Blow Off Assembly EA 1 $767.00 $767.00 I $767.00 $767.00 28 Water Service EA 10 $448.00 $4,480.00 14 $448.00 $6,272.00 29 Water Main Jumper Conne~tlon EA 5 $327.00 $1,635.00 5 $327.00 $1,635.00 30 Utility Allowenoe LS I $2,500.00 $2,500.00 0 $2,500.00 $0.00 31 Video Allow&nee LS 1 $300.00 $300.00 1 $300.00 $300.00 32 ilndemnifi~ation LS 1 $10.00 $10.00 1 $10.00 $10.00 TOTAI~ ................ ,,, $184,949. O0 $184,729. O0 Contract Amount $184,949.oo less As-Built Amount $184,729.00 Change Order #1, Final ($220.00) Page 1 12/3/97 ~O0/gO0~ '3~I '~03 g¥~ g~I~ Zg~ ~Og I X¥fl ~g:gI MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM # ~'~" - MEETING OF DECEMBER 9, 1997 RESOLUTION NO. 86-97 DATE: DECEMBER 5, 1997 This is a resolution assessing costs for abatement action required to remove nuisances on 21 properties located throughout the City. The resolution sets forth the actual costs incurred and provides the mechanism to attach liens on these properties in the event the assessments remain unpaid. Recommend approval of Resolution No. 86-97 assessing costs for abating nuisances on 21 properties within the City. RESOLUTION NO.86-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELR~Y BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESS- MENTS. WHEREAS, the City Manager or his designated representative has, pursuant to Chapter 100 of the Code of Ordinances, declared the exis- tence of a nuisance upon certain lots or parcels of land, described in the list attached hereto and made a part hereof, for violation of the provisions of Chapter 100 of the Code of Ordinances; and, WHEREAS, pursuant to Section 100.20, 100.21 and 100.22 of the Code of Ordinances of the City of Delray Beach, the City Manager or his designated representative has inspected said land(s) and has determined that a nuisance existed in accordance with the standards set forth in Chapter 100 of the Code of Ordinances, and did furnish the respective owner(s) of the land(s) described in the attached list with written notice of public nuisance pursuant to Sections 100.20, 100.21 and 100.22 of the Code of Ordinances describing the nature of the nuisance(s) and sent notice that within ten (10) days from the date of said notice forty-two (42) days in the case of violation of Section 100.04 pertain- ing to seawalls) they must abate said nuisance, or file a written request for a hearing to review the decision that a nuisance existed within ten (10) days from the date of said notice, failing which the City of Delray Beach would proceed to correct this condition by abating such nuisance, and that the cost thereof would be levied as an assess- ment against said property; and, WHEREAS, the property owner(s) named in the list attached hereto and made a part hereof did fail and neglect to abate the nuisance(s) existing upon their respective lands or to properly request a hearing pursuant to Section 100.21 and 100.22 within the time limits prescribed in said notice and Chapter 100 of the Code of Ordinances, or if the property owner(s) did request and receive a hearing, said prop- erty owner(s) failed and/or neglected to abate such nuisance(s) within the time designated at the hearing wherein a decision was rendered adverse to the property owner(s); and, W/4EREAS, the City of Delray Beach, through the City Administra- tion or such agents or contractors hired by the City Administration was therefore required to and did enter upon the land(s) described in the list attached and made a part hereof and incurred costs in abating the subject nuisance(s) existing thereon as described in the notice; and, WHEREAS, the City Manager of the City of Delray Beach has, pursuant to Chapter 100 of the Code of Ordinances of the City of Delray Beach, submitted to the City Commission a report of the costs incurred in abating said nuisance(s) as aforesaid, said report indicating the costs per parcel of land involved; and, WHEREAS, the City Commission of the City of Delray Beach, pursuant to Chapter 100 of the Code of Ordinances desires to assess the cost of said nuisance(s) against said property owner(s), NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That assessments in the individual amounts as shown by the report of the City Manager of the City of Delray Beach, involving the City's cost of abating the aforesaid nuisances upon the lots or parcels of land described in said report, a copy of which is attached hereto and made a part hereof, are hereby levied against the parcel(s) of land described in said report and in the amount(s) indicated thereon. Said assessments so levied shall, if not paid within thirty (30) days after mailing of the notice described in Sec. 3, become a lien upon the respective lots and parcel(s) of land described in said report, of the same nature and to the same extent as the lien for general city taxes and shall be collectible in the same manner as mortgages and fore- closures are under state law. Section 2. That such assessments shall be legal, valid and binding obligations upon the property against which said assessments are levied. Section 3. That the City Clerk of the City of Delray Beach is hereby directed to immediately mail by first class mail to the owner(s) of the property, as such ownership appears upon the records of the County Tax Assessor, notice(s) that the City Commission of the City of Delray Beach on the has levied an assessment against said property for the cost of abatement of said nuisance by the City, and that said assessment is due and payable within thirty (30) days after the mailing date of said notice of assessment, after which a lien shall be placed on said property, and interest will - 2 - Res. No. 86-97 accrue at the rate of 8% per annum, plus reasonable attorney's fees and other costs of collecting said sums. A Notice of Lien shall be mailed, along with the Notice of Assessment and this resolution. Section 4. That this resolution shall become effective thirty (30) days from the date of adoption and the assessment(s) contained herein shall become due and payable thirty (30) days after the mailing date of the notice of said assessment(s), after which a lien shall be placed on said property(s), and interest shall accrue at the rate of eight (8) percent per annum plus, if collection proceedings are necessary, the costs of such proceedings including a reasonable attorney's fee. Section 5. That in the event that payment has not been received by the City Clerk within thirty (30) days after the mailing date of the notice of assessment, the City Clerk is hereby directed to record a certified copy of this resolution in the public records of Palm Beach County, Florida, and upon the date and time of recording of the certified copy of this resolution a lien shall become effective on the subject property which shall secure the cost of abatement, interest at the rate of 8%, and collection costs including a reasonable attorney's fee. PASSED AND ADOPTED in regular session on this the day of , 1997. MAYOR ATTEST: City Clerk - 3 - Res. No. 86-97 COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT RIDGEWOOD HEIGHTS DELRAY VALENTINE GABALDON $ 61.00 LTS 1 & 2/LESS N 15 FT FRANCES GABALDON 70.00 (A/DM. FEE) RD R/W, BLK B, PB 14, 321 DATURA STREET P 44, PUBLIC RECORDS WEST PALM BEACH, FL 33401 OF PALM BEACH COUNTY, FL (702 SW 10TH STREET) TOURIST NOOK DELRAY, VINCENT VILLAFANE & $ 41.00 LT 16, BLK A, PB 11, MILAGROS VILLAFANE 70.00 (ADM. FEE) PB 11, P 46, PUBLIC 121 N "B" STREET RECORDS OF PALM BEACH LAKE WORTH, FL 33460 BEACH COUNTY, FL (NW 10TH AVENUE) TOWN OF DELRAY, W 55' MARIE QUINCE $ 51.00 OF LTS 11 & 12, BLK 23, 506 SW 14TH AVENUE 70.00 (ADH. FEE) PB 10, P 69, PUBLIC DELRAY BEACH, FL 33444 RECORDS OF PALM BEACH COUNTY, FL (SW 3RD STREET) ROSEMONT PARK DELRAY, TOKUMBO ABIOSE & $ 85.00 LOT 24, BLK 4, PB 13, CARLOTTA ABOISE 70.00 (ADH. FEE) P 60, PUBLIC RECORDS 5320 BUCHANAN ROAD OF PALM BEACH COUNTY, FL DELRAY BEACH, FL 33484-4218 (700 SW 5TH AVENUE) CARVER PARK, LT 14, IDA M. CORNELIUS & $ 41.00 BLK 2, PB 27, P 55, CHARLES E. CORNELIUS 70.00 (ADH. FEE) PUBLIC RECORDS OF 731 WEST COMSTOCK AVE. PALM BEACH COUNTY, FL WINTER PARK, FL 32789 (317 SW 15TH TERRACE) TOWN OF DELRAY, W 50' ST. MATTHEWS EPISCOPAL $ 51.00 OF E 150' OF S 100' OF CHURCH OF DELRAY BEACH, 70.00 (ADM. FEE) S 1/2 OF BLK 31, PB 1, FL, INC. P 3, PUBLIC RECORDS OF PO BOX 656 PALM BEACH COUNTY, FL DELRAY BEACH, FL 33447 (409 SW 3RD STREET) TOWN OF DELRAY, W 35' DIOCESE OF SOUTHEAST $ 41.00 OF E 185' OF S 100' FLA, INC. 70.00 (ADM. FEE) OF BLK 31, PB 1, P 3, C/O ST. MATTHEWS PUBLIC RECORDS OF EPISCOPAL CHURCH PALM BEACH COUNTY, FL PO BOX 656 (SW 3RD STREET) DELRAY BEACH, FL 33447 4 RES. NO. 86-97 DELRAY MANOR ADD TO A.J. BONET & $ 44.00 DEL]lAY, LOTS 45 & 46, FERN I. BONET 70.00 (ADM. FEE) PB 12, P 59, PUBLIC 413 SW 10TH STREET RECORDS OF PALM BEACH DELRAY BEACH, FL 33444 COUNTY, FL (SW 9TH COURT) TOWN OF DELRAY, N 1/2 A~4Y CHARLOW $ 51.00 OF LT 5, BLK 30, 125 SW 5TH AVENUE 70.00 (ADM. FEE) PB 1, P 3, PUBLIC DELRAY BEACH, FL 33444 RECORDS OF PALM BEACH COUNTY, FL (125 SW 5TH AVENUE) SEC. 9-46-43, N 324.1' DEE CAR REALTY LTD $ 52.00 OF LT 38 LYG WEST OF 2000 NO. FEDERAL MWY 70.00 (ADM. FEE) FEDERAL MWY & EAST OF DELRAY BEACH, FL 33483 OLD DIXIE HWY R/W (1900 NO. FEDERAL HWY) ATLANTIC GARDENS DELRAY, JAMES GARNER, JR. $105.40 LT 3, BLK 7, PB 14, P 63, 4000 NE 4TH AVENUE 70.00 (ADM. FEE) PUBLIC RECORDS OF PALM POMPANO BEACH, FL 33064 BEACH COUNTY, FL (SW 12TH AVENUE) WOODVUE, LOT 1, GARY S. GOLDSTEIN & $128.00 PB 37, P 19, PUBLIC BARBAR3t GOLDSTEIN 70.00 (ADM. FEE) RECORDS OF PALM BEACH 10243 BOCA SPRINGS DR. COUNTY, FL BOCA RATON, FL 33428 (GREENBRIER DRIVE) TOWN OF DELRAY, S 1/2 ETHEL MACKEY $ 51.00 OF LT 5, BLK 30, C/O SHIRLEY M. WALLACE 70.00 (ADM. FEE) PB 1, P 3, PUBLIC 1120 NW 64TH STREET RECORDS OF PALM BEACH MIAMI, FL 33150-4231 COUNTY, FL (129 SW 5TH AVENUE) RIDGEWOOD HEIGHTS DELRAY, RPI MANAGEMENT CORP. $ 59.00 LT 23, BLK C, PB 14, P 44, 209 NE 95TH ST, STE #2 70.00 (ADM. FEE) PUBLIC RECORDS OF PALM MIAMI FL 33139 BEACH COUNTY, FL (1106 SW 7TH AVENUE) TOWN OF DELRAY, S 5' OF SYLVIA SCHUPLER TRUSTEE $ 61.00 LT 1 & N 71.5' OF LOT 2, 3101 WASHINGTON ROAD 70.00 (ADM. FEE) BLK 30, PB 1, P 3, WEST PALM BEACH, FL 33405 PUBLIC RECORDS OF PALM BEACH COUNTY, FL (109 SW 5TH AVENUE) 5 RES. NO. 86-97 RIDGEWOOD HEIGHTS DELRAY MADELINE S. SANTIAGO & $ 51.00 E 41' OF LT 2, BLK D, HERMELINDA SANTIAGO 70.00 (A/DM. COST) PB 14, P 44, PUBLIC 1105 1/2 SW 7TH STREET RECORDS OF PALM BEACH DELRAY BEACH, FL 33444 COUNTY, FL (1105 1/2 SW 7TH ST) TOWN OF DELRAY, N 50' ADELENE JENKINS $ 51.00 OF S 356.6' OF E 135' PO BOX 1993 70.00 (A/DM. COST) OF BLK 24, PB 1, P 3, DELl{AY BEACH, FL 33447 PUBLIC RECORDS OF Pi~LM BEACH COUNTY, FL (322 SW 5TH AVE) PRIESTS ADD TO ATLANTIC VIRGINIA BRYANT $ -0- PARK GARDENS, LT 1, 203 SW 14TH AVENUE 70.00 (ADM. COST) BLK 4, PB 23, P 70, DELRAY BEACH, FL 33444 PUBLIC RECORDS OF PALM BEACH COUNTY, FL (203 SW 14TH AVE) TOWN OF DELRAY, W 50' JOHNNIE MARTIN, JR. $ 61.00 OF E 200' OF S 135' 215 SW 7TH AVENUE 70.00 (A/DM. COST) OF S 1/2 OF BLK 22, DELRAY BEACH, FL 33444 PB 10, P 38, PUBLIC RECORDS OF PALM BEACH COUNTY, FL (515 SW 2ND STREET) DELRAY BEACH HEIGHTS ROBERT L. REED & $ 41.00 1ST ADD, LT 1, BLK 5, PHYLLIS A. REED 70.00 (ADM. COST) PB 25/186, PUBLIC 7320 SUNNY HILLS TERRACE RECORDS OF PALM BEACH LANTANA, FL 33462 COUNTY, FL (929 SW llTH TERRACE) PLUMOSA PARK SEC. A, RICHARD A. STALFA $ 51.00 LT 27, PB 23, P 68, 252 NE 15TH STREET 70.00 (ADM. COST) PUBLIC RECORDS OF DELRAY BEACH, FL 33444 PALM BEACH COUNTY, FL (252 NE 15TH STREET) VIOLATION IS: SEC. 100.01 - LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, MATTER CONSTITUTING HAZARDS; DECLARED NUISANCE. 6 RES. NO. 86-97 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER .~/! SUBJECT: AGENDA ITEM # ~'~' - MEETING OF DECEMBER 9, 1997 FINAL PLAT APPROVAL/OCEAN ISLES AT DEL-RATON PHASE II DATE: DECEMBER 5, 1997 This is before the Commission to approve the final subdivision plat for Ocean Isles At Del-Raton Phase II, located on Frederick Boulevard south of La-Mat Avenue. The subject plat consists of a fee simple subdivision for a three-unit townhouse. Recommend approval of the final plat for Ocean Isles At Del-Raton Phase II. Agenda Item No. ~' AGENDA REOUEST Date: Dec. 4, 1997 Request to be placed on: X Regular Agenda Special Agenda Workshop Agenda When: Dec. 9, 1997 Description of item (who, what, where, how much): Approval of Ocean Isles At Del-Retort phase II plat. The plat provides for the fee simple subdivision of a 3 unit townhouse. All staff comments have been addrsssed. ORDINANCE/RESOLUTION REQUIRED: YES/NO DRAFT ATTACHED YES/NO Recommendation: Staff recommends approval of the Ocean Isles At Del- Rato~% Phase II plat, Department head signature:` ~ ~'~~_r J-~ ,~_~ Determination of Consistency with Comprehensive Plan: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available: YES/NO Funding alternatives (if applicable) Account No. & Description Account Balance City Manager Review: Approved for agenda: ~/NO ~ Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Disapproved BC/gm File: tac-oceanisle2 agenda.doc oo MEMORANDUM TO: David T. Harden City Manager FROM: Barron Caroni e~'d~// Engineer I 7 ~ SUBJECT: FINAL SUBDIVISION PLAT OCEAN ISLES AT DEL-RATON PHASE II DATE: December 4, 1997 Attached is an agenda request for Commission approval of the final subdivision plat for Ocean Isles At Del-Raton Phase II. The subject plat consists of a fee simple subdivision for a three unit townhouse. Also attached is a location map and reduced copy of the plat. If acceptable, please place this item on the December 9, 1997, Commission meeting for Commission approval. BC/gm attachment file: TAC-Ocean Isles At Del-Raton Phase II s/eng/eng/tac/ocenisl2/fnlpltsb.doc cc: Claire Graham, Planner Sharon Morgan, Executive Assistant LINTON B 0 U L E V A R D ~"~ ~.~D. A~U£ L ~ ENVIEONMENTAL SERVICES DEPARTMENT ~[[ PHASE II ii 4~4 so~rr~ sm'ro~ ~w~, D~Y B.*~ p_om~ a.~44 LOCATION MAP [[ 00-000 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~/~ SUBJECT: AGENDA ITEM # ~'~ - MEETING OF DECEMBER 9, 1997 REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS DATE: DECEMBER 5, 1997 Attached is the Report of Appealable Land Use Items for the period December 1 through December 5, 1997. It informs the Commission of the various land use actions taken by the designated boards which may be appealed by the City Commission. Recommend review of appealable actions for the period stated; receive and file the report as appropriate. TO: DAVID T. HARDEN, CITY MANAGER THRU: DIANE DOMINGUEZ, DIREG-TOR DEPARTMENT OF PLANNING AND ZONING FROM: /JASMIN ALLEN, PLANNER SUBJECT: MEETING OF DECEMBER 9, 1997 * CONSENT AGENDA* REPORT OF APPEALABLE LAND USE ITEMS DECEMBER 1, 1997 THRU DECEMBER 5, 1997 The action requested of the City Commission is that of review of appealable actions which were made by various Boards during the period of December 1, 1997 through December 5, 1997. This is the method of informing the City Commission of land use actions, taken by designated Boards, which may be appealed by the City Commission. After this meeting, the appeal period shall expire (unless the 10 day minimum has not occurred). Section 2.4.7(E) of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: 1. The item must be raised by a City Commission member. 2. By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. City Commission Documentation Appealable Items Meeting of December 9, 1997 Page 2 A. Approved with conditions (5 to 0, Diggans and Turner absent), the site plan, landscape plan, architectural elevation plan and a Certificate of Appropriateness to allow the construction of a duplex residence, Westrock Courtyard Homes, located at the southeast corner of Martin Luther King Jr. Boulevard (N.W. 2nd Street) and N.W. 1st Avenue. Concurrently the Board waived the requirement to dedicate 10' of right-of-way for N.W. 1st Avenue. B. Approved (5 to 0), a Certificate of Appropriateness to allow a wood entrance trellis on the front property line adjacent to an existing brick walkway at 1104 Nassau Street. No Regular Meeting of the Board was held during this period. No Regular Meeting of the Board was held during this period. By motion, receive and file this report. Attachment: Location Map LOCATION MAP FOR ~ULF S,~EAM BL~. CITY COMMISSION MEETING OF DECEMBER 9, 1997 L-50 CANAL LAKE IDA ROAD N.W, 2ND $.W. 2ND LOWSON BOULEVARD UNION BOULEVARD ~ i BOULEVARD i_ ..... _1 L-38 CANAL C-15 CANAL CITY LIMITS ........... H.P.B.: A. - WESTROCK COURTYARD HOMES B. - 1105 NASSAU STREET SCALE CITY OF DELRAY BEACH, FL PLANNING & ZONING DEPARTMENT -- 01611,41 ,~45E IdAp $)'~'EM -- MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM #~ q'~ ' - MEETING OF DECEMBER 9, 1997 AWARD OF BIDS AND CONTRACTS DATE: DECEMBER 5, 1997 This is before the Commission to approve the award of the following bids and contracts: 1. Bid award in the amount of $18,780 under GSA contract, to Pitney Bowes for a Paragon 2000 Mail Machine, with funding from 334-6112-519-64.10. 2. Bid award in the amount of $14,450 to Delray Awning, Inc. for awning covers for the teaching area and concrete pad driving range area at the Municipal Golf Course, with funding from 445-4761-572-63.90. 3. Purchase award in the amount of $177,900 to Club Car, Inc. for 60 golf carts for the Lakeview Golf Club, with funding from 446-4713-572-44.90. 4. Purchase award in the amount of $17,425 to New Holland of North America via State contract for a tractor-front end loader Model 3930, with funding from ~z5--4761-572-64.90. 5. Purchase award in the amount of $27,100 to Pifer Inter- national, Inc. via the Village of North Palm Beach bid for a Ransomes Model 250 mower, with funding from 445-4761-572- 64.90. Agenda Item No.: ~/~'/ AGENDA REQUEST December 4, 1997 Date: Request to be placed on:, x Regular Agenda Special Agenda Workshop Agenda When: December 9, 1997 Description of agenda item (who, what where, how much): City Commission is requested to award bid to Pitney Bowes for a' Paragon 2000 Mail Machine in the amount of $18.780 under GSA contract #GS-25F-5138C to replace the existing machine. Funding is available in account number 334-6112-519-64.10. ORDIBIANCE/ RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Department Head Signature: Determination of Consistency with Comprehensive Plan: City Attorney Review/ Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds]: Funding available: ~/ NO Funding alternatives: (if applicable) Account No. & DescriDtion: ~-~i~-.~)~.(0q-{O ~ (~ ~rh~Ca!~~5 Account Balance: .~ (~iq~O - ' City Manager Review: Approved for agenda: ~/ NO ~Hold Until: Agenda Coordinator Review: Received: Action: Approved/Disapproved MEMORANDUM TO: David T. Harden, City Manager FROM: Robert A. Barcinski, Assistant City Manager DATE: December 5, 1997 SUBJECT: AGENDA ITEM CITY COMMISSION MEETING DECEMBER $, 1997 BID AWARD -- PITNEY BOWES MAIL MACHINE ACTION City Commission is requested to award a bid to Pitney Bowes for a Paragon 2000 Mail Machine in the amount of $18,780 under GSA contract #GS-25F-5138C to replace the existing machine. Funding is available in account number 334-6112-519-64.10. BACKGROUND All incoming and outgoing mail is processed through the City Hall Switchboard location. Currently, mail is processed on a 9 year old Pitney Bowes 6100 Mailing Machine. We are experiencing numerous equipment failures which causes delays in the processing of mail and parts are difficult to obtain. We can either replace the existing machine with the newer 6100 Mailing Machine at a cost of $14,095 or purchase the Paragon Mail Center 2000 at a cost of $18,780. The 6100 Mailing Machine consists of 4 separate units, an electronic Mail Scale, an electronic Postage Meter, an Accounting Unit, and a Power Stacker. With this equipment, each piece of mail has to be sorted by size, each piece weighed separately and postage amount determined and keyed into system, then placed in Stacker and run through the machine. Also, each unit has to be covered under a separate maintenance agreement at a total annual cost of $2,277.00. The Paragon 2000 offers 100% automation of mail with all sorting, feeding, weighing, metering and accounting functions done from one central keyboard. The total annual maintenance cost for the Paragon 2000 is $1,259.00. Mail processing time is cut in half with the Paragon 2000. RECOMMENDATION Staff recommends approval of the purchase of the Paragon 2000 Mailing Machine from Pitney Bowes under GSA contract #GS-25F-5138C in the amount of $18,780 with funding to come from account number 334-6112-519-64.10. RAB/tas File:u:sweeney/agenda Doc:postage.mac MAIL/PARCEL PROCESSING SYSTEMS (MPPS) - PARAGON MAIL PROCESSOR :SIN 50~1~: Attachments/Options for MPPS - Paragon Mail Processor 99~£P~ Ol OlPP IP~ ~9S NO±~ ~DO8 - DNI 8d ~B 80:I~ ~6, PO DBO General Services Administration Federal Supply Service Authorized Federal Supply Schedule Catalog Office Machines, FSC Group 74, Parts II and ill FSC Class 7490 Item: 50-121, 50-122, 50-147, 50-163, 50-163b, 50-163c, 50-163d, 50-164, 50-205 Pitney Bowes World Headquarters One Elmcroft Road Stamford, CT 06926-0700 Tel. (203) 351-7233 Contract Sales & Administration: Pitney Bowes Federal Government District 6100 Lincolnia Road Alexandria, VA 22312-2764 Tel. (800) 287-0807 Business Size: Large OFFICE MACHINES For mailing, sealing, weighing, shipping, addressing, mail opening and inserting machines. 99~6£~ OL 0~ ~P~ ~gg NOIU~ ~DO8 - DNI 8~ ~ &O:~T 66, ~0 DBQ CITY OF DEL~Y BEACH ] 00 NW 1 ST AVE DEL~Y BEACH FL, DE~ T~CY, HE~ IS THE ~TO~ATION ON THE PA~GON MAIL PROCESSOR & 6100 M~L~G ~CH~E. BOTH SYSTEMS COME WITH A SCALE AND ACCO~T~G PAC~GE. THE PA~GON OFFERS HAS ~DITIONAL FEATU~S SUCH AS ~IGH-ON-THE-WAY ~ONG ~TH P~CISION JET SP~Y SE~G. CU~NTLY YOUR E~ENSE IS AVENGING $ 273.74 PER MONTH INCLUD~G SERVICE A~ METER. THE NEW SYSTEMS ~ AS FOLLOWS, GSA PURCHASE PRICE AaN-NUAL SERVICE METER 6100 MAIL MACHINE ELECTRONIC SCALE $14,095 $1,569. $ 274.25 ACCOUNTING PACKAGE PARAGON WITH SCALE ACCOUNTING PACKAGE $18,780. $1,259. $ 236.00 MONTHLY ALL IN ONE PAYMENT 6100 MAiL MACHINE ELECTRONIC SCALE ACCOUNTING PACKAGE $ 607.00 PAPOtGON WITH SCALE ACCOUNTING PACKAGE $ 682.00 PROGRAM PRICING IS FIXED FOR FIVE YEARS AND INCLUDES MACHINES, SERVICE, METER AND RATE CHANGES. 14361 Commerce Way Miami Lakes. FL 33016-1585 1-800-322-8000 [0/'[{~'d Og'[~HIT~ C]_L 011717 ~P~ '[qq NCIIHN H')RI:/ - qMt o.~ x, ............. · Pitney Bowes PARAGON SYSTEM COMPARISON BASED ON 150-200 PIECES PERfDAY 25%-35% WEIGHED DAILY TIME ANALYSIS PARAGON MAIL PROCESSOR 6100 TIME PROCESSING MAIL .25 HOURS _50 HOURS TIME GENERATING TAPES .50 HOURS I HOUR ( 6 SECONDS PER TAPE) TIME RUNNING REMAINTNG MAXL .25 HOURS .50 HOURS (240/MIN. VS. 160/MIN ) TOTAL 1 HOUR 2 HOUR ~'1 HOUR SAVED PER DAY OR 22 HOURS PER MONTH AT $12.00 PER HOUR TOTAL MONTHLY LABORER SAVINGS IS $264.00 14381 Commerce Way Miami Lakes, FL 33016-1585 1-800-322-8000 ~0/~0'd 99~LFP~I9~ 0£ 0[PP ItT~ IgG N0±[J~ UD08 - DNI ~d ~IH £~:£~ £6, 9I Nr4H PARAGON® II... THE NEW BENCHMARK FOR i CONTROL THE PARA-TEXT" THE PRESENT COMMAND CENTER IMPRESSIONTM METER · See It All Happen · Keep Your Eye On The Imprint And make sure it happens the way you want it to. Take complete You see the postage amount as it is automatically set, enabling control. Feeding, weighing, metering and accounting functions are you to prevent costly errors. all at your fingertips, on a single, central keyboard. · Automatic Dating · Always On Display The internal clock automatically changes and prints the correct The display screen makes it very simple to monitor and track date-every day. accounting information and do diagnostic trouble-shooting. There even are prompts to replenish supplies. ~ :.,:::,.~ .: = ~ ~ :h PROMOTION:~. I · Advanced Dating You can meter future mailings with an advanced date by simply , :, - ~-~?~: :7::;:';~ selecting the option. The Display Screen shows it ail as it happens. · Advanced POSTAGE BY PHONE* An internal modem makes refilling postage as easy as pushing · Preset Up To Nine Jobs a button. Program up to nine of your most frequently produced jobs, · Professional Impressions and run them at the touch of a button. Advanced inking produces an imprint that is clearer and sharper than ever before. And the long-lasting, snap-in cartridge prints in four different densities of environmentally safe, blue or red ink. PRECISION JET'SPRAY~SEALING ..~,~. · A Perfect Seal... Everytime The improved Jet-SprayTM ~'~-~' - Sealer automatically senses the glued edge of the envelope, moistens ii/II that precise area, then securely seals it. AI.L' PROCESSING CONTROL, PERFORMANCl PERFORMANCE NO MORE SORTING BY SIZE · Feed The Mail As It Comes Feed large pieces with small and light pieces with heavy. Feed pieces that are only 3.5" wide or as long as 15" (~ 3" in W-O-W"" mode). Feed open flaps and closed flaps and sealed and unsealed envelopes. And feed them all together-intermixed. · Handle Thicker Mail For Savings The ability to process mail up to 3/4" thick enables you to save postage by consolidating mailings. · Dramatic Time Savings In-motion weighing Typically, the elimination of sorting and off-line weighing reduces mixed m~iL processing time by 30% or more, SAY W-O-WTM TO PRODUCTIVITY EASY PARCEL PROCESSING · Lightning Speeds ,, ,.,. !~i:-2.,0_:1~ · Precise Electronic Control Up to 240 pieces per minute for uniform mail. "'L~'" "-':-::';::~i Both the integrated 15-lb. electronic scale and · Weigh.On.The_WayTM (W.O_WTM) 100-lb. remote electronic platform are operated The system weighs every piece (up to 16 ounces) as it easily from the PARA-TEXT'" Command Center. passes, automatically determining the correct postage. · Differential Weighing Completes and setting the meter..,all at up to 90 pieces per minute. The Automation Process Save time with in-line weighing, and save money by It's easy, Remove an item from the 30 lb. platform, ending costly overpayments or returns, its weight is determined, postage is calculated, the · Custom Rates Configuration Software meter is set, and a tape is instantly produced. Process different levels of automation compatible mail · Tape Selection in the same batch without changing classes or sorting Select wet or dry tapes, and pdnt up to 99 of them. mail by weight, automatically, at the postage rate you choose. · Weight Counters · Rating Choices Track each piece of weighed mail by the weight breaks of the class An extensive selection of USPS rates are available. In addition, selected. Data is stored until the mail class is changed, and it can the rates for UPS and two other carriers can be provided. be printed or viewed at the PARA-TEXT" Command Center. This simplifies USPS reporting. Seals, meters and stacks at lightning speeds. I.D ACCOUNTABILn'Y! ACCOUNTABILITY Total cost accounting. DATA TRAILTM ACCOUNTING FOLLOWS THE MONEY · Total Reporting Computerized Data Trail"' Accounting monitors, tracks, stores and reports on every piece of mail and every cent you spend on postage, It provides formal reports on weight, quantity, dollars spent, carder, classes, fees and transactions. ~ ,,,,,'~'"' .................. _.. · Customized Reports The Data TrailTM system provides the flexibility to format reports in _ the way you need them (i.e, by department, project or client, etc.) · Print Or View - ~-- ' ":-~ ;:-: - You can review data on the screen, print it out on one of our optional printers, or you can do both. It's your choice. ' I · Two Accounting Periods Account by two different periods (i.e., monthly/annually or monthly/ quarterly). Summary information is available the way you need it. · Speed Entry [nstant m~agement reporting. Up to 99 speed entry codes can be set up for instant access to your commonly used accounts. · Expanded Accounting · Security Codes For applications requiring extra levels o~ accounting capability, Protect your database with security codes for three levels of PARAGON® II can be interfaced with our Mail Management System. access by up to twenty operators, e Computer Interface PARAGON® II's accounting data can be transmitted to your PC in an ASCII format, and it easily integrates with most spreadsheet and database programs. · File Transfer Software The software downloads accounting data to a disk, making it easy to customize on your PC. · Bar Code Scanning Options All data and jobs can be easily and accurately entered by scanning a bar code with the Bar Code Wand. This eliminates manual errors and provides tighter departmental chargeback capability. · Mailing For Profit If your mail operation is run as a profit center, Data Trail" Accounting can automatically add a surcharge to each mail piece and charge it back to the appropriate department or client. PARAGON® II helps you breakthrough where it counts most...on the bottom line. HOW PARAGON'II STACKS UP · Flexible Stacking -- Up To 650 Pieces .......... ,,,,-,¢~~ PARAGON"II gives you output flexibility. Mail can exit into the 150-piece Redefining ~ _.~~ Table-TopStacker. orchoose Customer Service ...... ~ from two Power Stacker Pitney Bowes backs the PARAGON'Il Mail Processor with ~;' options output capacity, complete customer service, a program that expand it's total that · Console Work Station Convenience shows up in productivity and on your bottom line. You can house the entire system in our heavy-duty, Console · Training Work Station. This provides convenient work surfaces and storage capacity to enable you get the most from your We offer free and comprehensive Operator Training PARAGON'II Mail Processor. and Certification programs. We also offer Mail Management training to help you cut costs by better use of the postal service's rate and service options. · Service: Fast And Reliable Customization' Our Service Program provides you with complete PARAGON'II can be configured to satisfy your specific service. Our technicians are thoroughly trained and application. Some of the listed features are standard responsive. while others are optionaL. ·this provides the flexibility to construct customized systems. Ask your Pitney Bowes · We Guarantee Your Satisfaction sales representative for the details. At Pitney Bowes Mailing Systems, we are committed System Specifications to providing our customers with the finest products backed by the highest quality service, and we won't Series Length Depth Height Weight Standard 67.5" 21" 14" 184 lbs. be satisfied until you are satisfied· Ask your Pitney Bowes sales representative for more information about Standard with Power Stacker 80.5" 21" 14" 204 lbs, our Customer Satisfaction Guarantee% Console · Soft-Guard® Rate Protection with Power Stacker 80.5" 21" 14" 416 lbs, Our optional Soft-GuardTM Service guarantees the Electrical: Operates on 115 VAC, 60 Hz, 6.5 amps max., updating of USPS and other carrier rates. Whenever plus 3.0 amps max. accessory outlet, rates change, we will automatically send you a new Material Specifications memory module. It's as easy as that. (Envelopes and Cards) · Financing To Serve You Length: 15" max. to 5" min. (13" when working with W-O-Vt") Through the Pitney Bowes Credit Corporation, we can Width: 13" max. to 3.5" min. handle all your leasing needs, and provide you with (10" when working with W-O-VVTM) the PARAGON"II for a minimal capital outlay. We'll work Thickness: 3/4" max. (compressible) to .007" min. with you to develop the best possible program for your Depth individual needs. of Flap: 4" max. to 1" min. Maximum Feeding And Separation · 240 per minute for uniform mat·del Contact your local Pitney Bowes office · 90 per minute with Weigh-On-The-Way'" feature or call toll-free: 1-800 MR BOWES (800-672-6937), · Specifications and Performance will vary depending on the rnatenals used for processing For best results use matena~s approved by the Iocat Customer Sen,,ce Department. ask for program number 8500. Pitney Bowes World Headquarters Stamford, CT 06926-0700 Printed in U.S.A. © 1996 Pitney Bowes Inc. An Equal Opportunity Employer AD Mail Has Met Its Match! The PARAGON* II Mail Processor. It's the flagship of our new and growing family of Mail Center 2000' products and solutions for generating and processing mail. The Do-Everything System Does More Than Ever! Now, PARAGON' II has taken a giant leap into the next generation to deliver unparalleled levels of productivity and reliability...including the automation of 100% of your mail! Differential Weighing PARA-TEXT' PRESENT IMPRESSIONF Platform Command Center Postage Metering DATA TRAIL~ Feeding I ,. I! \ Flexible Configuration W-O-W' JET-SPRAY' PC Interface Stacking Options Weigh-On-The-Way Sealing · Agenda Item No.: AGENDA REQUEST Date: December 3, 1997 Request to be placed on:, x Regular Agenda Special Agenda Workshop Agenda When: December 9, 1997 Description of agenda item (who, what, where, how much): City Commission is requested to approve a bid award to Delray Awnin~ Inc.~ the low bidder~ in the amount of $14,450 for awning covers for the teachinK area and concrete pad 4rivin~ range are~, Award to be conditioned on final minor site plan approval. Fundiny is available in the Mun~g~pa] Golf Courma gapital acgount number 445-4761-572.63.90. ORDINANCE/ RESOLUTION REQUIRED: YES/~ Draft Attached: YES/NO Recommendation: , /~.~4,~ Department Head Signature: Determination of Consistency with Comprehensive Plan: City Attorney Review/ Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds}: Funding available: ~ NO Funding alternatives.TM (~f applicable) Account No. & Description: Account Balance: ~0i00o ' J City Manager Review: ApprovedHold Until:f°r agenda: Agenda Coordinator Review: Received: Action: Approved/Disapproved MEMORANDUM TO: David T. Harden City Manager FROM: /f2~ Robert A. Barcinski ,~p' Assistant City Manager DATE: December 2, 1997 SUBJECT: AGENDA ITEM CITY COMMISSION MEETING DECEMBER 9, '1997 BID AWARD - GOLF COURSE RANGE AWNINGS Action: City Commission is requested to approve a bid award to Delray Awning, Inc., the Iow bidder, in the amount of $14,450 for awning covers for the teaching area and concrete pad driving range area. Award to be conditioned on final minor site plan approval. Funding is available in the Municipal Golf Course capital account number 445-4761-572- 63.90. Background: Mr. Dubin is proposing to cover with a vinyl type awning the driving range (180' x 9') and the range teaching area (40' x 9'). It is anticipated that by covering these areas additional range revenue will be realized. The awnings will keep the sun off of the golfers utilizing the range. A tentative site plan approval has been given by the Planning and Zoning Director pending the submittal of additional information. Three bids were received as follows: Delray Awning, Inc. $14,450 Awning Specialties $14,655 Tropical Awning $18,360 Recommendation: Staff recommends award of the bid to Delray Awning, Inc. in the amount of $14,450 for the awning covers for the Municipal Golf Course range conditional on final site plan approval by the Planning and Zoning Director. Funding is available in the Municipal Golf Course capital account number 445-4761-572-63.90. RAB/tas File:u:sweeney/agenda Doc:awngolf. doc RECEIVED I.II:C 0 I 1997 ASSISTANT MEMORANDUM CITY MANAQER TO: ROBERT A. BARCINSKI, ASSISTANT CITY MANAGER FROM: PLANNING AND ZONING DEPARTMENT PROJECT NAME: DELRAY BEACH MUNICIPAL GOLF COURSE TYPE OF ACTION: CLASS I - SITE PLAN APPROVAL PROJECT PLANNER: SCOTT THATCHER ASSISTANT PLANNER DATE: DECEMBER 1, 1997 An application has been submitted by Delray Awning, Inc. to the Planning & Zoning Department for the installation of two (2) awnings at the Delray Beach Municipal Golf Course. Although the application has been tentatively approved by the Director of Planning & Zoning, the application was incomplete (elevations, color samples and a dimensioned site plan) for a formal approval. Once the required information has been submitted, sign-off on the modification will occur. Should you have any questions, contact me at ext. 7047 AGENDA REQUEST Date: December 04, 1997 Request to be placed on:, Consent XX ~~ Agenda Special Agenda Workshop Agenda When: December 09, 1997 Description of agenda item (who, what, where~ how much): Purchase Award- Request For Proposal #98-05 - Purchase/Lease of Sixty (60) Golf Carts for Lakeview Golf Club, at a total cost of $177,900, from Club Car Inc. ORDINANCE/ RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Purchase sixty (60) ~olf carts from Club Car, Inc. at a total cost of $177~900~ RFP #98-05. Fundtn§ from account #446-4713-572-44.90. .Department Head Signature: ~~~ City Attorney Review/ Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available: YES/ NO Funding alternatives: ' (if. applicable) Account No. & Description: Account Balance: City Manager Review: - Approved for agenda..: / NO Hold Until: Agenda Coordinator Review: Received: Action: Approved/Disapproved MEMORANDUM TO: David Harden, City Manager FROM: Jacklyn Rooney, Purchasing Supervisor THROUGH: Joseph Saf~e Director DATE: December 04, 1997 SUBJECT: DOCUMENTATION - CITY COMMISSION MEETING DECEMBER 09, 1997, PURCMASE AWARD - RFP #98-05 REQUEST FOR PROPOSALS FOR SIXTY (60) GOLF CARTS FOR LAKEVIEW GOLF COURSE Item Before Commission: The City Commission is requested approval of the purchase of sixty (60) golf carts from Club Car Inc., at a total amount of $177,900. Background: Request For Proposals were received on December 02, 1997, from four (4) vendors all in accordance with City Purchasing Policies and Procedures (RFP #98-05 on file in the Purchasing Office) . A tabulation of bids is attached for your review. The RFP evaluation was based on compliance to the specifications and pricing. Also, several financing options were considered in the RFP evaluation. The options are as follows: 1) Lease purchase thru a financial institution (48 mos.; assumed 6%) 2) Lease purchase thru the vendor (48 mos.- see bid tab) 3) Operating lease thru the vendor (48 mos.- see bid tab) An analysis of the alternatives determined that the most cost effective means for financing the golf carts is through bank financing. This assumes, however, that the carts are used for a period of at least one year subsequent to the end of the lease purchase and that a trade-in value at the end of the five years is at least $474.55. Brahm Dubin feels that the extended year is feasible and that the trade-in value is conservative. Purchasing Staff, Finance Treasurer, and Brahm Dubin recommend award to Club Car, Inc. at a total cost of $177,900. The proposal received from Club Car included, at no cost to the City, two (2) Carryall II Gasoline Utility Vehicles, at a face value of $11,200, and a $750.00 tournament sponsorship donation. See attached memo from Brahm Dubin dated December 04, 1997. Recommendation: Staff recommends the purchase of the sixty (60) gasoline golf carts from Club Car, Inc. at a total cost of $177,900. Funding from account #446-4713-572-44.90. Attachments: Tabulation Of Bids Memo From Brahm Dubin Financial Analysis MEMORANDUM DATE: Dece~mber 4, 1997 TO: ~ob Barcinski FROM: Brahm Dubin RE: Golf Cart RFP Lakeview Golf Club Enclosed please find a tabulation of bids prepared by Jackie Rooney in Purchasing in reference to RFP# 98-05. Upon analysis it is the recommendation of Jackie Rooney, Becky O'connor and myself to purchase the fleet and finance the purchase through the City. The purchase option analysis is as follows: EZ GO MMR YAMAHA CLUB C~LR $178,440 $167,993 $174,000 $177,900 2 Carryall II (11,200) $17~,440 $167,99~ $174.000 $166.700 We are recommending to award the bid to Club Car for the following reasons: 1. Low Bid 2. Inventory of parts on hand 3. Experience of staff on working on Club Car. They are fully trained. 4.Delray Beach Golf Club and Lakeview Golf Club would have a consistent fleet. 5. Quality of vehicle including such important specifications as: A. 7 gallon gas tank B Self adjusting rack and pinion steering C 17'6" turning circle D Aluminum frame E Camber can be adjusted F Governor guard G RPM Limiter CITY OF DELRAY BEACH TABULATION OF BIDS RFP #98-05 PURCHASE/LEASE OF SIXTY (60) GOLF CARTS FOR LAKEVIEW GOLF CLUB DECEMBER 02, 1997 E-Z GO MMR/GOLF YAM_A2qA GOLF CLUB CAR VENDOR: TEXTRON & INDUSTRIAL CARS OF FLA. INC. UNIT PRICE FOR $2974.00 EA. $2799.89 EA. $2900.00 EA. $2965.00 EA. PURCI4ASE OF 60 $178,440.00 $167,993.40 $174,000.00 $177,900.00 GOLF CARTS LEASE PURCHASE 10.75% 7.35% 6.18% INTEREST RATE $56.15 EA. $71.67 EA * $45.95 EA. $53.95 EA. MONTHLY PAYMENT $3,369.00 $4,300.20 $2,757.00 * $3,327.00 * OPEP~ATING LEASE 10.75% 7.35% 10.25% INTEREST RATE $61.48 EA. $57.06 EA. $45.95 EA. $59.73 EA. MONTHLY PAYMENT $3,688.80 $3,423.60 $2,757.00 $3,583.80 MANUFACTURER E-Z GO TXT-G 97P4G EAGLE YAMAP~A 1998 CLUB MODEL NUMBER COMPOSITE PARCAR G-16AS CAR DS BODY GASOLINE GASOLINE DELIVERY TIME 45-60 45 21 60 AFTER RECEIPT CALENDAR CALENDAR CALENDAR CALENDAR OF ORDER DAYS DAYS DAYS DAYS ADDITIONAL N/A N/A N/A INCLUDED IN OPTIONS THIS RFP*** WARRANTY 3 YEARS 3 YEARS 3 YEARS** 3 YEARS ** COMMENTS/ *WITH THE *$1.00 BUYOUT *BALLON *$850.00 P/CAR EXCEPTIONS 49TH PAYMENT OPTION PAYMENT IS PURCHASE AT $990 **LIFTTIME $72,000.00 OPTION AT END · *BUMPER TO COVERAGE FOR **Y~ OF LEASE TERM BUMPER CART FRAME - WILL EXTEND ** LIMITED WARRANTY- EXCLUDES TO LIFETIME LIFETIME W/ WARRANTY RUST & COVEHAGE FOR EXTENSION OF AGAINST CORROSION LAKEVIEW FOR PARTS AND CORROSION CART FRAME LABOR FOR FOR LENGTH 3 YEARS. OF THE LEASE *** AT NO OR AS LONG CHARGE - AS YOU OWN TWO (2) CARTS CARRYALL II GASOLINE UTILITY VEHICLES & a $75o.oo TOURNAMENT SPONSORHSIP DONATION MEMOR~ND~ TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~'~I SUBJECT: AGENDA ITEM # ~-~ - MEETING OF DECEMBER 9, 1997 AWARD OF BIDS AND CONTRACTS DATE: DECEMBER 8, 1997 Please note a correction to the funding account number in item 8.H.4 of the December 9th agenda. The correct account number is 446-4761-572-64.90, as opposed to the 445 shown. cc: City Manager, David T. Harden Asst. City Manager, Robert Barcinski City Attorney, Susan Ruby Finance Director, Joe Safford Budget Director, Regina Frazier MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM # - MEETING OF DECEMBER 9, 1997 AWARD OF BIDS AND CONTRACTS DATE: DECEMBER 5, 1997 This is before the Commission to approve the award of the following bids and contracts: 1. Bid award in the amount of $18,780 under GSA contract, to Pitney Bowes for a Paragon 2000 Mail Machine, with funding from 334-6112-519-64.10. 2. Bid award in the amount of $14,450 to Delray Awning, Inc. for awning covers for the teaching area and concrete pad driving range area at the Municipal Golf Course, with funding from 445-4761-572-63.90. 3. Purchase award in the amount of $177,900 to Club Car, Inc. for 60 golf carts for the Lakeview Golf Club, with funding from 446-4713-572-44.90. 4. Purchase award in the amount of $17,425 to New Holland of North America via State contract for a tractor-front end loader Model 3930, with funding from ~-446-4761-572-64.90. 5. Purchase award in the amount of $27,100 to Pifer Inter- national, Inc. via the Village of North Palm Beach bid for a Ransomes Model 250 mower, with funding from 445-4761-572- 64.90. Agenda Item No.' o~- ff' ~ AGENDA REQUEST Request to be placed on: Date: December 3, 1997 _XX_Consent Agenda __Special Agenda __Workshop Agenda When: December 9, 1997 Description of agenda item (who, what, where, how much): Purchase One (1) Tractor- Front End Loader Model 3930, from New Holland of North America via the State of Florida Contract #765-900-300 for a total cost of $17,425.00. ORDINANCE/RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Purchase One (1) Tractor-Front End Loader Model 3930, from New Holland of North America via the State of Florida Contract #765-900-300 for a total cost of Determination of Consistency with Comprehensive Plan: ~. City Attorney Review/ Recommendation (if applicable): BudgetDirector Review (required on all items involving expenditure of funds): Funding available: ~O Funding alternatives: (if applicable) Account No. & Description: 4qs-qq i Account Balance: } ~ Z, 0~c City Manager Review: Approved for agenda: ~/NO ~///~ Hold Until: Agenda Coordinator Review: Received: Action: Approved/Disapproved MEMORANDUM TO: David Harden, City Manager FROM: K. Butler, Buyer ~ THROUGH: Joseph Safford, Finance Director DATE: December 3, 1997 SUBJECT: DOCUMENTATION - CITY COMMISSION MEETING - DECEMBER 9, 1997 - PURCHASE OF ONE (1) TRACTOR-FRONT END LOADER MODEL 3930, VIA STATE OF FLORIDA CONTRACT #765-900-300 FOR LAKEVIEW GOLF COURSE Item Before Commission: The City Commission is requested to approve the purchase of one (1) Ford Tractor-From End Loader Model 3930, from New Holland of North America via the State of Florida Contract #765-900-300 for a total cost of $17,425.00. Background: Lakeview Golf Course is requesting to replace the current equipment for it is worn out and unsafe as a front-end loader. The Tractor-front end loader is available for purchase using the State of Florida Contract #765-900-300. (Please see attached) Recommendation: The Purchasing Staff concurs with the recommendation to purchase this equipment, from New Holland of North America for a total cost of $17,425.00. Funding for this equipment is from account code #445-4761-572-64.90. Attachments Memo from Delray Beach Golf Course, Dated 12/4/97 State of Florida Contract #765-900-300 cc: Brahm Dubin, General Manager Tom Arendt, Supt. of Golf Course agenda.doc MEMORANDUM To: Brahm Dubin, General Manager From: Tom Arendt, Supt. of Golf Course Date: December 4, 1997 RE: CAPITAL PURCHASE 1998 (TRACTOR-FRONT END LOADER) Lakeview Golf Course needs a new front-end loader. The machine we currently use is worn out and needs to be replaced. We recommend a Ford Tractor Model 3930 with front-end loader, turf tires and hydraulic take off per the State of Florida Contract #765-900-300. We would remove the front end loader from the tractor we presently own and use the tractor as a backup fertilizer and sand spreader. It still has useful life as a tractor but is unsafe as a front-end loader. The tractor we wish to purchase is on State Contract and is a very good value. The total cost delivered is $17,425.00. We have budgeted for this unit in FY 98. Delivery is four to five months for this unit and must order as soon as possible to revive this unit before next spring. 765-900-300, Tractor, 34 PTO HP Page 1 of 4 765-900-300 (52) WHEEL TRACTOR, 34 PTO HP ~ 540 RCM REPRESENTATIVE MODELS - CASE 3220, DEERE 1070, FORD 3430, MASSEY FERGUSON 231/2 OR APPROVED EQUIVALENT NOTE: This detailed specification is not complete unless it is used in conjunction with specification SRTM-1, Special Requirements Ail Agriculture Tractors And Mowers. INTENDED USE USED FOR SMALL ACREAGE TWO ROW FARMING APPLICATIONS. LARGE MOWING JOBS IN URBAN AND SMALL ACREAGE RURAL AREAS. AN OPTIONAL FRONT END LOADER IS ALSO AVAILABLE FOR LANDSCAPING, NURSERY AND GROUNDS MAINTENANCE. THIS IS A 34 PTO HP COMPACT TRACTOR THAT CAN BE USED WHERE MANEUVERABILITY IS NEEDED. 10. ENGINE: A. Diesel engine, minimum 3 cylinder, minimum 1.9L (116 CID), liquid or air cooled. B. Dry type or oil bath air cleaner. C. Cold start aid. D. Permanent anti-freeze and corrosion protection for liquid-cooled engines. E. 12-volt electrical system, with an electric starter and a transmission neutral safety start device. F. Vertical exhaust with rain cap or curved stack. 12. PERFORMANCE: PTO HP at exactly 540 RCM - 34.0, minimum. Submit latest Nebraska Test reports with bid. ( test reports have not yet been published or if model bid has not been Nebraska Tested, enclose with bid manufact data and a letter from the manufacturer certifying compliance). FAILURE TO SUBMIT THIS DATA MAY RESULT IN THE BID BEING DISQUALIFIED. 20. DRIVE TRAIN: A. Manual transmission with a minimum of eight forward speeds and two reverse speeds. B. Differential lock. C. Standard rear wheel drive. D. Steering brakes. 22. POWER TAKE-OFF: 540 RPM, transmission driven with internal overrunning clutch, continuous "Live", or inde rear PTO (as per latest issues of SAE J722, J208, and J1170), controlled by either a hand lever or a foot pedal. PT shaft shall be covered with a safety shield. 30. AXLES: A. Adjustable tread front axle. B. Adjustable tread rear axle. 40. STEERING: Power assist or hydrostatic steering. 50. ROPS: The machine shall be equipped with a roll over protective structure meeting the latest issues of either OSH Standards or SAE Standard J1194. 60. ACCESSORIES: A. Engine tachometer, hour meter, oil pressure, charging system, temperature and fuel gauges, indicators, o lights. B. Headlights (2), taillight(s), and warning (flashing) lights (2). C. Rear fenders. D. Hydraulically controlled, category I, three-point hitch and linkage with draft and position control and lin stabilizers. E. Swinging drawbar with provisions for safety chains for drawn equipment. F. Hand and foot throttle. G. Tool box, lockable. H. Electric backup alarm (may be provided and installed by the dealer if not available from the manufactur I. Foam float or suspension seat with foam padding and backrest. Seat belt with metal-to-metal fastener, pe issue of SAE J386, must be installed. J. Service braking system and parking system per the latest issue of SAE J1041. K. SMV (slow moving vehicle) emblem mounted on rear of machine (may be provided and installed by the not available from the manufacturer), per latest issue of SAE J943. L. Electric warning horn (may be provided and installed by the dealer if not available from the manufacture Tuesday, December 02, 1997 3:04 PM 765-900-300, Tractor, 34 PTO HP Page 2 of 4 M. It is preferred to have a PIN (Product Identification Number) system per the latest issue of SAE J1360. 70. TIRES: A. Front: 6.00-16, F2, 4 PR, minimum, or larger. B. Rear: 13.6-24, R1, 4 PR, minimum, or larger. 80. PAINT: Manufacturer's standard paint and color. 90. CONDITIONS: A. At a minimum the manufacturer's standard warranty for state and municipalities shall be provided. A co warranty shall be provided with the bid. B. See Special Requirements All Agriculture Tractors And Mowers (SRTM- 1). MAKE NEW HOLLAND N.A. CONTRACTOR DISCOUNT* MODEL PRICE Western District NEW HOLLAND O 3430 $11.555 (A) Northern District NEW HOLLAND 0.Q_ 3430 $11.555 (B) Central District NEW HOLLAND 0_.. 3430 $11,555 (C) *Discount per unit for tractor picked up by ordering agency at contractor's place of business. Approximate delivery time required after receipt of order: 120-150 days OPTION: 765-900-301-Option, Wheel Tractor, 34 PTO HP ~ 540 RPM, Spec. 52 NOTE: (Where necessary, factory parts and components may be installed by the dealer if the parts or components available as factory installed.) (1) 1001. Horizontal exhaust. ORDER CODE 86511316 PRICE $200 (2) ~ (3) 2202. Mid power take-off: 1950 RPM, transmission driven with internal overrunning clutch, continuo independent mid PTO, controlled by either a hand lever or a foot pedal. ORDER CODE PRICE N/A (4) 5001. Canopy; steel or fiberglass. 9611009 Grey ORDER CODE 9610990 Yellow PRICE $486 (5) 5002. Heavy mesh screen (may be provided and installed by the dealer if not available from the manuf installed but removable, covering entire space between rear ROPS posts, and the space (if any) b fenders and ROPS, to protect operator from debris thrown up by cutter or mower. Screen assem consist of an adequately designed steel frame and 1 I/2", #9 expanded metal. Mounting must be manufacturer, if available, to avoid unauthorized drilling, cutting, or welding of ROPS structure. ORDER CODE MESH SCREEN PRICE $181 (6) ,~. One-spool remote control valve with two breakaway couplers per latest issue of ISO 5675, and and J716. ORDER CODE ~ ~': ~" (7) 6002. Two-spool remote control valve with four breakaway couplers per latest issue of ISO 5675, and and J716. ORDER CODE DGPNB950C PRICE $593 (8) 6004. Front end weights, with bracket, full set. State total weight added, including bracket. TOTAL WT.: 545 ORDER CODE 365 PRICE $497 (9) 6005. Rear wheel weights. State total weight added. TOTAL WT.: 450 ORDER CODE FONN 1A008AA PRICE $598 (10) 6007. Warning light; strobe or rotating beacon (may be provided and installed by the dealer if not avai the manufacturer). Four way flashing light is not acceptable. ORDER CODE STROBE PRICE $170 (11) ,~. Hydraulic front loader, installed and ready for use. To include lift arm support device (refer to S Bid for 2WD Model. ORDER CODE '/~IO ?',' ~ $~1~' ~ (12) 6011. Rear work light, installed. ORDER CODE STD PRICE N/C (13) 6012. Turn signals, if available (may be provided and installed by the dealer if not available from the manufacturer). ORDER CODE TURN SIGNALS PRICE $165 (14) 7002. Optional rear tires. Bid all tire and wheel combinations available for 2WD, including turf tires. Tuesday, December 02, 1997 3:04 PM 765-900-300, Tractor, 34 PTO HP Page 3 of 4 and wheel combinations on separate sheet. ORDER CODE PRICE SEE SUPPLEMENT LI (15) 7003. Optional front tires. Bid all tire and wheel combinations available for 2WD, including turf tires. and wheel combinations on separate sheet. ORDER CODE PRICE SEE SUPPLEMENT LI (16) 8001. Special state color(s); DOT Yellow (DuPont #L9069A) (may be dealer painted if factory paintin available). NOTE: The entire unit, including options and attachments, shall be painted the same color. NEW HOLLAND NORTH AMERICA, INC. SPECIFICATION #52 NEW HOLLAND 3430/3930 RECOMMENDED INDIVIDUAL COMBINATION FRONT & ORDER NO. DESCRIPTION REAR WITH ORDER CODE PRICE 742 13.6X28 10 PR R3 04 $(20) 743 16.9X24 6PR R1 02 193 744 14.9X28 6PR R1 08 57 745 13.6X28 6PR R1 01 STD 746 16.9X30 6PR R1 07 197 749 16.9X24 6PR R3 221 785 14.9X24 6PR R1 76 787 19.5X24 10PR R4 503 06 18.4X16.1 6PR R3 06 81 RECOMMENDED INDIVIDUAL COMBINATION FRONT & ORDER NO, DESCRIPTION REAR WITH ORDER CODE PRICE 611 7.50X15 6PR F2 $25 612 6.00X16 4PR F2 01 STD 613 7.50X16 6PR F2 07/08 58 614 7.50X16 8PR I1 02/04 61 615 7.50X18 6PR F2 61 626 11LX15 6PR I1 33 656 11LX16 8PR F3 155 Tuesday, December 02, 1997 3:04 PM 765-900-300, Tractor, 34 PTO HP Page 4 of 4 121 OPTION 2001 - Synchronized transmission which can be shifted on the go by clutching ORDER CODE DESCRIPTION PRICE 3930B2200 New Holland 3930 all purpose tractor $1715 45 PTO HP 540 RPM independent PTO 8x8 synchronized transmission. 6.00x16 4PR F2 and 13.6x28 6PR R1 tires All other options listed with base 3430 tractor are compatible with the model 3930 Tuesday, December 02, 1997 3:04 PM Agenda Item No.: ~'ff' AGENDA REOUEST Request to be placed on: Date: December 1, 1997 _XX_Consent Agenda __Special Agenda __Workshop Agenda When: December 9, 1997 Description of agenda item (who, what, where, how much): Purchase One (1) Ransomed Model 250 Mower from Pifer Intemational, Inc. for a total cost of $27,100.00. ORDINANCE/RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Purchase One (1) Ransomes Model 250 Mower from Pifer International, Inc. via The Village of North Palm Beach Bid, at a total cost of $27,100.00. Funding from account code #445-4761-572-64.~ ~ Department Head Signature: //~~-~ -'//~ Determination of Consistency with C0mfirehensive Plan: City Attomey Review/ Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available ~~i~O ~ Funding alternatives: (if applicable) ~r~ / ~% AccountNo.&Description:cjqS-~tl.;tlo~. %~Z.t~-qo 04Lac- ~af~',~ ~,~- Account Balance: $~g: 000 City Manager Review: Approved for agenda: E~O ~4~'I Hold Until: Agenda Coordinator Review: Received: Action: Approved/Disapproved MEMORANDUM TO: David Harden, City Manager FROM: K. Butler, Buyer THROUGH: ~oseph Safford, Finance Director DATE: December 4, 1997 SUBJECT: DOCUMENTATION - CITY COMMISSION MEETING - DECEMBER 9, 1997 - PURCHASE ONE (1) RANSOMES MODEL 250 MOWER FOR THE DELRAY BEACH MUNICIPAL GOLF COURSE Item Before City. Commission: The City Commission is requested to approve the purchase of one (1) Ransomes Model 250 Mower, to Pifer International, Inc., via the Village of North Palm Beach, Golf Course Maintenance Equipment bid for a total cost of $27,100.00. Background: The Village of North Palm Beach awarded to second low bidder because low bidder (Hector Turf) did not meet the required specifications. Delray Beach and Lakeview Golf Course are requesting to replace the current mowers that are heavily used and have reached the limits of their usefulness. The mower is available for purchase using the Village of North Palm Beach, Golf Course Maintenance Equipment Bid. The bid received by the Village of North Palm Beach is less than the GSA price for this equipment. (Copy attached) Recommendation: The Purchasing Staff concurs with the recommendation to purchase this equipment from Pifer International, Inc. for a total cost of $27,100.00. Funding for this equipment is from account code #445-4761-572-64.90. Attachments: Letter from Pifer International, Inc., Dated 11/26/97 Memo From Delray Beach Golf Course, Dated 10/17/97 Resolution No. 72-96, Dated 12/12/96 Tabulation Sheet cc: Brahm Dubin, General Manager MEMO ~ TO: BRAHM FROM: TOM ARENDT RE: FAIRWAY UNIT PURCHASE- CAPITOL '97 10/17197 WE WOULD LIKE TO PURCHASE A MODEL 250 RANSOMES FAIRWAY MOWER. OUR PRESENT TWO FAIRWAY UNITS ARE FIVE AND FOUR YEARS OLD AND NEED REPLACEMENT. WE NOW MOW BOTH DELRAY AND LAKEVlEW WITH THESE MACHINES AND IT IS DIFFICULT KEEPING THEM FUNCTIONING PROPERLY. WE ALREADY HAVE A MODEL 250 RANSOMES THAT WE HAVE BEEN USING FOR ONE YEAR. THE MACHINE IS VERY REASONABLY PRICED AND HAS PERFORMED EXCELLENTLY. OUR PLAN IS AS FOLLOWS. 1. TO MOW FAIRWAYS, TEES, APRONS, AND COLLARS AT THE DELRAY LOCATION WITH THE RANSOMES MOWERS. 2. TRANSFER THE BETTER OF THE TWO EXISTING MOWERS TO LAKEVlEW TO MOW FAIRWAYS. PLAY HAS INCREASED TO THE POINT THAT WE MUST MOW THEIR FAIRWAYS FIRST THING IN THE MORNING OR WE INTERFERE WITH PLAY. THIS PRESENTS A LOGISTICAL PROBLEM AS DELRAY MUST ALSO BE MOWED AS EARLY AS POSSIBLE AND WE PRESENTLY DON'T HAVE THE EQUIPMENT FOR BOTH. 3. WE WOULD KEEP THE OLDEST EXISTING FAIRWAY MOWER (TORO MODEL 5100) AS A BACK-UP FOR THE OTHER THREE. WE CAN PURCHASE A MODEL 250 BY PIGGYBACKING OFF A BID PACKAGE EXECUTED BY THE CITY OF NORTH PALM BEACH. A COPY OF THIS BID IS ATTACHED. WE HAVE BUDGETED FOR THIS PURCHASE IN FY98. (~ ~____~__.~ u~-~--i~ lb~J~ P~UM UILLA~E U~ NHB IU 156124JY1~ ~.~1 NORTH PALM BEACH COUNTRY CLUB GOLF COURSE MAINTENANCE TO: NPBCCAB FROM: JOHN MORSUT, GOLF COURSE SUPT. DATE: 10-31-96 EQUIPMENT BID UPDATE The Village had the Golf Course F.x/uipment Bid opening on TuesdaY, ]0-29-96 for the 1996-97 fiscal budget. Of the five vendors who serve our area, onIy 3 submitted bids. Each vender was given a packet which included a guide of specifications I wanted in a piece of equipment that would best satisfy our situation. I tested specific equipment that met certain criteria. Others I did not because I am already famiiiar with them. The following equipment was sent out to bid: o Triplex Greeamsmower: Budgeted was $12,800.00 each x 2 $25,600.00 Pifer Inc. was $13,200.00 each or $26,400 Hector Turf was $I3',200 each or $26,450 each or $22,900 The unit that Pifer Inc. carries is the machine I would like to have based on serviceability, dependability and ~luality workmanship. This also happens to be the same machine I purc3ased last year and would like to/;ave the same this year especially when it comes to stocking parts. Also this company happens to be in Jupiter which makes it extremely efficient for service. I specifically required power steering on this mower in that the more conventional steering units are cumbersome and tend to break down more easily because they use a cable; Hector TurPs version does not come with power steering. Also, I am not satisfied with the quality of cut that the Hector Turf mower gives. I have one of their mowers hexe in the shop and I don't use it m mow any more but rather I keep aerifying units on them instead. As for the Lesco unit, I have two examples of why I will not even consider them as a choice. They are the best example of what not to have as part of your mowing equipment. The most negative reasou is that il~ey do not have a service department to repair these machines. I have one machine that mows my driv/ng range tee and another one that sits and collects dust. One is a 1992 and the other a I993. The mowers I am using at this IXfint are a 1990 and 91 Jacobsen triplex. The I.esco mowers arc. just not built up to the speed like the other competitors, they don't last. I have kd only one service call in I year on my newest triplex and it gets to mow a lot of grass. It has proven to be a dependable mower. 5-Gang Fairway mower: Budgeted was $25,500 each x 2 $51,000 Pifer/nc. was $27,100 or $54,200 Hector Turf was $24,500 or I~sco Inc. No bid I demonstrated several pieces of machinery concerning this particular unit and has narrowed it down to 2. Pifer and Hector Turf has similar machines, but Hector Turf did not bid that particular machine that I used (demo). The ~n~th is that they cannot match the competitor's price and threw in less ora machine instead. This machine does not meet tl~e specifications I required such as 6.5" diameter handle at a particular ground speed. In our situation, it is best tibet we mow on Monday, Tlmrsday, and Friday. With the fertility program that I follow, our grass grows very aggressively in the summer, and with 2 days of not mowing, such as Tuesday and Wednesday, it would be hard on the mower with the 5" diameter reels on that Thursday. Also, I required an I I blade reel and Hector's is only an 8. This has a drastic effect ori Ihe quality of cut on the fairway. By having'an 1I blade reel, you increase the frequency of clip on the grass, thus insuring a much smoother, fwmer surface. Utility Vehicle: Budgeted was $7,450 x 2 = $I4,900 Pifer Inc. was $7,300 each or $14,600 Hector Turf was $5,795 each or $I 1,590 Lesco Inc. - No bid Again, the vehicles that Pifer carries are thc same vehicles I purchased last yeas'. These vehicles are strong and very dependable. They have a proven track record that extends at least. 3 decades that I know of. They handle more payload than the vehicle offered by Hector Turf. It has Ihe polyethylene bed that I specified, which' does not rust or dent. We have not had one service call in I year of service on either of these vehicles. To buy all of Pifer's equipment will cost us $92,600.00. To buy all of Hector TurPs will cost us $86,990.00. This is a difference of $5,610. ! have purchased a utility tractor through a state contract for $I 1,757,00. We have a total budget of $105,500 ta purchase equipment. NOV.-26'97(WED} 1.7:05 PIFER, INC. TEL:561-746-S510 P. 001 Pifer International, Inc. H~n$Ollles ~ RyaO ~, E-Z-Go, Cu~m~ AB G~ Coupe ~s ~g t~ ~M ~n~ 1972 1~0 indlantown Rd. - Route 706 -Jupiter, Florida 33458 · Phone (561) 746-5321 Wednesday, Nevember 26, 1997 KATHY BUTLER CITY OF DELR. AY BEACH 320 S.W. 4TH ST. DELRAY BEACH, FLORIDA 33~.~?. DEAR KATHY. THIS LETTER IS TO CONFIRM THAT PIFER. INC. WILL EXTEND THE PRICE FOR A RANSOMES 250 THAT WAS OFFERED TO THE VILLAGE OF NORTH PALM BF. ACH, TO THE CITY OF DELI=AY BEACH. THE PO 4/013578 WAS AWARDED BY THE VILLAGE OF NORTH PALM BEACH ON 12117196. THE PURCHASE PRICE WAS $27,100.00, WITH ALL OF THE MENTIONED SPECIFICATIONS MET. PLEASE FEEL FREE TO GIVE ME A CALL IF YOU SHOULD HAVE ANY QUESTIONS. AS ALWAYS, WE APPRECIATE THIS OPPORTUNITY, SALES MANGER BPJnf website: www. pifer-international.com TOLL FREE 1-800-321-8374 Facsimile (561) 746-5510 e-mail: pifer~pifer-international_cDm e-mail: scottj~pifer-international.com Serving Central & Soulh America. Hahamas . Caribbean · Bermuda. Europe South Florida RANSOM]ES CUSHMAN RYAN (;SA CONTRACT #: GS-0'/'F-9693G CONTRACT PERIOD: 9-1-1997 TO 2-2~.2001 SLN #: MODEL #: D]ESCRIlWflON: PRICE: 341-4 945000 RANSOME5 250, :~ GANG FAIRWAY UNIT 18,335_20 23 liP, DIESI~L, 2 WI-HEEL DRIVE 341-4 ~45001 RAlq'SOMES 250. 5 GANG FAIRWAY UNIT 18,963.00 28 liP. DIESEL. 2 WHEEL DRIVE 341.4 94~002 R. ANSOIV~S 250, 5 GANG FAIRWAY UNIT 20,3.21_20 28 I4P. DIESEL, 4 WHEEL DRIVE J414 945003 RANSOMES 250. 5 GANG FAJ, RWAY UNIT 22,t. 10.60 33 HP. DIESEL, 4 WHEEL 34! .4 945009 R)LNSOMF.~ 250, 5 GANG FAIRWAY LrNIT 20,347.60 33 [-'IP. D1F_~EL, 2 Wfx'EIEL DRIVE 341-25 8923.32 5" DIA.., 9 BLADE RFflEL ( 341-25 892334 5" DIA... 7 BLADE ~ ( $ REQUIRED ) 920.20..,,cL. 341-25 960001 6.5" DIA.,, ? BLADE REEL ( 5 REQUIRED ) 1,350.20 ( ~")341-25 960000 6.5"DIA.., II BLADEREEL ( 5 REQUIRED ) 1,350_20 341--25 960006 6.5" DIA.., VERTICUT R3EEL ( 5 REQUIRED) 1.212.60 34 !-25 970041 DRAGS CATCRERS FOR 960001 & 960006 · 533.20 341-25 892006 GRASS CATCHERS FOR 892332 ( 5 KEQUIR~_D ) 120.40 341-25 970057 FRONT LIGHT KIT 86.00 341-25 970078 ROLL OVER. PROTECTION SYSTI~M 507.40 341-25 970079 CUTTING HEAD ADAPTER ALLOWS 5" HFaS~S 490.20 341-25 970080 DELL/X~ MILLS SEAT 397.00 ~41-25 970081 DELUXE GRAMMAR SEAT 498.68 341-25 970076 8CRAPF. R GROOVED FRONT SET OF 5 : 154.80 .MI-25 892328 REAR ROLLER SCRAPERS ( 5 REQUIRED) 25.80 sl~.oo ~41-25 970089 TUE,F l~~lON SYSTEM 341,4 LI-IAA001 ' RANSOMES 405, 70AI~IG FAIRWAY 46.5 I4~. DIESEL, 4 WI-IEEL DRIVE 3n ].~ 96oo07 6,5-t)~^._ ~ BLAD~ va~s 341-25 960008 6.5" DIA.. 11 BLADE KEELS ( ? REQUIRED .} 1.521.52 341-2~5 970081 DELUXE GRAMMAR SF. AT 498.68 ~4~-~ 970~ ~3 sc~,.~,~s n~OaT ~.O~.~ ( S~T O~ ~ ~ ~Y00 3aI-25 9700g9 TURF PROTECTION SYSTEM 516.00 gB£Z£b~I9§ 0I:[0 LBBI/§O/EI (~ ~Delray Beach Golf Club Fax Cover Sheet Date: Time: To: }r(' g ~t ~ 4 ~I Phone: ~ ~o'T L ~ 0- Fax: From: Phone: (561) 243,-7385 ~*a P~' Fax: (561) 243-7386 Number of pagex including cover sheet: ~m * ~- Message: e~~,,X/~ . MEMORANDUM TO: David T. Harden, City Manager FROM: ~Robert A. Barcinski, Assistant City Manager SUBJECT: AGENDA ITEM - DECEMBER 9, 1997 APPROVAL CONTRACT AMENDMENT - GOLF COURSE DATE: December 3, 1997 Action City Commission is requested to consider approval of a contact amendment with BJCE, Inc. for the City Golf Course to amend, in it's entirity, Exhibit "B" (Performance Bonus) for FY 97-98. Background At the last Commission meeting Commission directed staff to make changes in the performance bonus measures (Exhibit "B'). These have been adjusted, reviewed with Brahm Dubin, and are presented for recondideration. Recommendation Approve contract amendment with BJCE, Inc. as proposed. RAB/tas File:u:sweeney/agenda Doc:bjce2.agn AMENDMENT TO MUNICIPAL GOLF COURSE MANAGEMENT AGREEMENT DATED NOVEMBER 4, 1994 THIS AMENDMENT to the Municipal Golf Course Management Agreement dated November 1, 1994 (original Agreement) is made this day of , 1997, by and between the CITY OF DELRAY BEACH (referred to herein as the "City") and BJCE, INC. (d/b/a Dubin and Associates) (referred to herein as "Dubin"). WITNESSETH: WHEREAS, the parties entered into a Management Agreement dated November 1, 1994, to provide for management services at the Delray Beach Municipal Golf Course, and have amended said agreement in 1995 to also provide management services for the Lakeview Golf Course, and in 1996 for the Tennis Center. WHEREAS, the parties desire to amend the Agreement to provide for a revision to performance measures, Exhibit "B", for FY 1997/98. NOW, THEREFORE, the parties hereto agree as follows: 1. The recitations set forth above are incorporated herein. 2. Exhibit "B" to the original Agreement is modified in its entirety. Exhibit "B", as modified, is attached hereto and incorporated herein as if fully set forth herein. 3. Except as expressly modified in writing herein or as modified by subsequent written amendments, all other terms and conditions of the original Agreement survive this Amendment and are binding on the parties. Any reference to golf course, golf course operations, or the like include all golf courses owned by the City unless otherwise expressly stated within the original agreement or amendment(s) thereto. IN WITNESS WHEREOF, the City and Dubin have set their hands and seals on the day and year first above written to this Amendment to the Municipal Golf Course Management Agreement dated November 4, 1994, and three counterparts, each of which shall constitute an original document. WITNESS: BJCE, INC. By: Brahm Dubin, President (Name printed or typed) CORPORATE ACKNOWLEDGMENT State of Florida County of Palm Beach The foregoing instrument was acknowledged before me this day of , 1997, by (name and title of officer or agent) of (name of corporation), a corporation (state or place of incorporation), on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification and did/did not take an oath. Signature of Notary Public State of Florida Stamp of Notary Public ATTEST: CITY OF DELRAY BEACH, FLORIDA By: City Clerk Jay Alperin, Mayor Approved as to form: City Attorney BJCE EXHIBIT "B" PERFORMANCE BONUS FY 97-98 Delray Beach Municipal Golf Course · Increase net income by 5% from FY 97. · Host Sunrise Kiwanis Club and Rotary Club breakfast on a weekly basis, and promote use by .qroups such as the Delray Beach Chamber. · Remove and replace with a different species 30 Melaleuca trees where needed. · Increase padicipation in youth related programs by 5% from FY 97. · Increase gross revenue, banquet business by 5% from FY 97. · Complete golf cad path installations by July 98. · Complete driving range improvements by July 98. · Maintain greens and tees so that there is no more than 1% weed coverage on green surface. · Maintain fairways so that there is no more than ,5% weed coverage in fairway areas. · Complete ordering of course replacement equipment by July 1998. Lakeview Golf Course · Increase retained earnings by 3% if course is not closed for green regrassing. · Increase number of rounds played by 5% over FY 97 if greens are not re-worked. · Increase merchandise sales by 5%. · Complete Clubhouse facility improvements to meet ADA and code requirements by September '98. · Complete regrassing of greens and tees (if funded) by the end of September 1998. · Complete replacement of scheduled course equipment by July 1998. · Maintain greens and tees so that there is no more than 1% weed coverage on green surface. · Maintain fairways so that there is no more than 5% weed coverage in fairway areas. MEMORANDUM TO: David T. Harden, City Manager ~O~, / FROM: Robert A. Barcinski, Assistant City Manager SUBJECT: AGENDA ITEM - CITY COMMISSION MEETING DECEMBER 9, 1997 APPROVAL SPECIAL EVENT - FOTOFUSION '98 DATE: December 5, 1997 Action City Commission is requested to endorse FotoFusion '98 to be held January 27th through January 31, 1998 to waive rental fees for use of City facilities, to authorize staff to make and install event signs and Photographic Center directional signs, to waive any costs associated in making and installing the signs, provide staff assistance in hanging banners, and to allow the use of parking spaces on NE 2nd Avenue for a Pepsi truck and a Budweiser truck to assist in the hospitality program. Background Attached is a letter from Fatima NeJame, Executive Director of Palm Beach Photographic Center requesting the City to endorse the event, waive rental fees for use of facilities, to make and install signs waiving any charges for cost, to hang banners, and to allow them to place a Pepsi and Budweiser truck on NE 2nd Avenue to be used for the event. City facilities that will be used during the event include Commission Chambers, the first floor conference room, the Mahogany Room and Banyan Orchid Room at the Civic Center. The estimated rental charges for these facilities would be approximately $400.00. The request also includes event and directional signage. Four (4) event signs 4'x4' and six (6) directional signs for the center have been requested. The estimated material cost for these signs is $250.00. They have also requested that City staff install event banners at the intersections on Atlantic Avenue from Swinton to A-1-A and in the CRA parking lot between N.E. 1st and 2nd Avenues. Banners can be hung utilizing regular time. I have included a copy of their proposed '98 budget, '97 actuals and a copy of the event schedule. The City agreed to contribute $6,000.00 this year to the event. SubjecV. AGENDA ITEM - CITY COMMISSION MEETING DECEMBER 9,1997 APPROVAL SPECIAL EVENT - FOTOFUSION '98 Date: November 24, 1997 Page: Two (2) Recommendation Staff recommends approval of the request from Palm Beach Photographic Center to endorse the event, prepare signs, provide staff support for banner hanging, waive rental fees and costs to make requested signage, and to allow the use of City right of way to place the Pepsi and Budweiser trucks. RAB:tas Attachments File:u:sweeney/agenda Doc:fotofusi.098 November 19, 1997 E~--,,^,CH ~. David T. Harden PHoTOGRAPH. lC ® City of Defray Beach AA~SS~ON ST^TEMENT: 100 N.W. 1St Avenue A nonprofit visual arts organization dedicated to the Delray Beach, Florida 33444 education and preservation of the art of photography D~ar David: and digital imagin§ Palm Beach Photographic Centre is proud to present FOTOFusion'98, our 3rd year of the [30^RD OF DIRECtOrS: 5-day illuminating festival that transforms downtown Delray Beach into the photography Jay Alperin and digital imaging capital of the world. Fred Frankel Jan McVay Marjorie Nlargolis Last year, participants for FOTOFusion totaled 8,039 originating from 28 different coun- Trudi Mitchell tries with over 12,000 viewing the exhibitions and over 250,000 community members who Arthur NeJame Fatima NeJame benefited and experienced FOTOFusion through Art and Jazz on the Avenue, sidewalk Jim Norman cafes, galleries, the Library, City Hall and other exhibition locations. Hotel room reserva- Floyd Segel tions for 1997 alone totalled over 2,000 room nights. These numbers represent a 60% Sandy Simon Arthur Steinman increase from 1996, which marked the premiering of this international festival. Ken Walters Museum & ~^~Ls~¥: We are grateful for your support and we could not have reached this success in two short World-class Exhibitions years without the never-ending support from the City of Delray Beach. Based upon an Open Year-r<ound increase of 30% response rate to national advertising monitored thus far, the Centre gULTU~, SUPPO,T 6,OUP: expects the tourism impact numbers to climb accordingly. INFOCU$ Enclosed is a full press kit which details and highlights new events for '98 for your review. p,o~s: This year we are proud to offer: Photography Workshops Digital Imaging Workshops FOTOCamp for Kids 100 world renowned photographers, digital imaging artists, Pulitzer Prize winners, mu- Family FOTOVacation seum curators and picture editors, "A virtual gathering of eagles that happens nowhere else FOTOBasics in the world; Project I See FOTOExpose (165) seminars, field trips, darkroom demos, computer workshops, panels, web presenta- FOTOFun Tours liOns, master lectures and slide presentations; FOTOInsights FOTOFriends Arts-in-Communities (35) major presentations and slide shows free to the community AN,u^, F,sr~v^,s: (22) world-class museum exhibitions free to the community FOTOFusion FOTOFunfest EOTO~elr~y (10) photo ops (at least!) (5) Fuse and Schmooze activities ... a different social networking party every night. 55 NO~TH,^ST 2ND AVENUE In order to insure FOTOFusion'98 success, we respectfully request the following consider- DELRAY [3EACH, FL 334~,d ations from the City of Delray Beach: 56a.276.9797 FAx: 56~.276A932 1. Endorsement of the event w,, s,~: 2. Waving of rental fees WWW.PBPHOTO.WORKSHOP.ORG E-MA~L: PBPHOTO~a^TE.NET '3. Produce and install event signage 4. Produce and install directional signage 5. Install FOTOFusion banners (provided by the Centre) .at all AtlanticAvenue intersections from Swimon to A1A and at the parking lot across the street from the Centre. 6. Permit one Pepsi and one Budweiser Truck to park along N.E. 2nd Avenue during the 5 days so that they may assist us in offering a hospitality suite service to the 293 FOTOFusion volunteers and the sale of beverages (with proper permits) to the community where proceeds will go directly to expand ing our year-round children's educational programming such as Project I See, with the Juvenile Court Administration and Arts-in-Communities withMAD DADS. On behalf of Palm Beach Photographic Centre's board of directors, we thank you for your continued support. Sincerely, PALM BEACH PHOTOGRAPHIC CENTRE Executive Director Enclosure cc: Bob Barcinsky ~'~ FotoFusion '97 Actual EXPENSES Guest Photographers & Picture Editors $41,165 airfare 16,365 hotel 24,800 Exhibitions 6,837 Rising Star Awards 2,000 Marketing print advertisin'g 39,090 free events flyer 1,800 direct mail brochure 20,365 postage 12,800 banners 1,390 other 894 Ground transportation 687 Equipment/furniture rental 650 Space Rental 6,539 Refreshments hospitality suite 2,750 Farewell reception 2,480 T-shirts 1,400 Awards banquet 6,180 other 1,850 Personnel administrative 62,000 Other festival expenses 38,460 phone, electriq, office supplies, insurance, rent TOTAL EXPENSES $249,337 INCOME Admissions 119,795 Gala dinner 1,200 Auction 12,218 Corporate Support and Grants 109,500 Canon 10,000 Kodak 25,000 Tiffen 2,500 Print File 1,500 Jobo 1,500 Time Inc 5,000 Tourist DeveloPment Council 55,000 City of Delray Beach 6,000 Macarthur Foundation 3,000 TOTAL INCOME $242,713 In Kind Donations 209,000 artists fees 6,000 advertising 170,000 equipment and supplies 25,000 other 8,000 FotoFusion '98 Budget unit cost per unit subtotal total grand total EXPENSES Guest photographers and picture editors $57,375 air[are 75 240 18,000 hotel 250 95 23,750 hotel 125 125 15,625 Exhibitions 4,000 Risinf Star Award 1,000 Marketing 75,200 print advertising 30,000 direct mail brochure 24,000 free events brochure 1,200 postage 12,000 other 8,000 Ground transportatio~ 1,000 Equipment/furniture rental 1,000 Space Rental 4,500 Refreshments 16,000 hospitality suite 2,000 T-shirts 4,000 Awards banquet 8,000 other 2,000 Personnel administrative 60,000 Other festival expenses 40,000 phone, electric, office supplies, insurance, rent TOTAL EXPENSES $ 260,075 INCOME Admissions 140,000 Gala dinner 10,000 Corporate Support and Grants 110,075 Canon 15,000 Kodak 35,000 Tiffen 6,000 Print File 2,000 Time Inc 5,000 Tourist Development Council 23,000 Florida Arts Council 7,000 City of Delray Beach 6,000 Other Income 11,075 TOTAL INCOME $ 260,075 MEMORANDUM TO: Joe Weldon Director Parks and Recreation Alison MacGregor Harry City Clerk FROM: (/~ Robert A. Barcinski ~ Assistant City Manager DATE: September 15, 1997 SUBJECT: FOTOFUSlON '1998 Fotofusion will be held from Tuesday, January 27th through Saturday, January 31, 1998. Attached is the proposed schedule listing rooms needs. Please review the dates and times proposed for use of City facilities and let me know if we have any problems or conflicts. RAB/tas Attachments File: u:sweeney/asmemos Doc:foto98.doc MEMORANDUM TO: David T. Harden, City Manager FROM: ~obert A. Barcinski, Assistant City Manager SUBJECT: AGENDA ITEM - DECEMBER 9, 1997 SPECIAL EVENT REQUEST - DOWNTOWN DELRAY ART FESTIVAL DATE: December 3, 1997 Action City Commission is requested to endorse the 9th Annual Downtown Art Festival sponsored by Howard Alan Events, Ltd. to be held January 10-11, 1998, to grant a temporary use permit per LDR's section 2.4.6(H) for use of city right-of-way, to authorize staff to apply for the FDOT street closure permit, to authorize staff support for security and barricading the street, and to permit an event sign to be erected on Atlantic Avenue just east of 1-95 one week prior to the event. Background Howard Alan Events, LTD. will again be conducting the 9th Annual Downtown Arts Festival. This year again a portion of the proceeds will be given to the Joint Venture. Mr. Alan is requesting closure of Atlantic Avenue, this year, from NE/SE 7th Avenue east to Salina. This is an expansion of the area to the west of the intracoastal. He is also requesting security service from the Police Department and Public Works assistance to barricade the street. The estimated overtime cost for City services and barricade rental is approximately $6,663. Mr. Alan will pay for these costs as well as provide for trash and clean up and porta lets. Signage per LDR's section 4.6.7(D)(3)(j)(i) can be installed one week prior to the event and must be under 20 square feet. Recommendation Staff recommends endorsement of the event, granting of the temporary use permit, providing staff assistance at the vendors cost and allowing the event sign to be installed with all overtime and barricade costs to be paid by the vendor. RAB:tas File:u:sweeney/agenda ~ ~ ~'~ Doc:gLhfest.art atlantic November 21, 1997 Mr. Robert A. Barcinski, Assistant City Manager City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 RE: AGENDA ITEM - 9TH ANNUAL DOWNTQWN DELRAY FESTIVAL OF THE ARTS - JANUARY 10 - 11, 1998 This is a request from Howard Alan Events for approval by the City Commission of the above subject event to be held January 10th and 11th, 1998. Please note that this request includes closure of the streets to begin at Atlantic Avenue west of 7th Avenue to 50 feet before the intracoastal Waterway, then over the bridge 50 feet east of the bddge and continuing on east Atlantic Avenue to Salina. Attached is also a list of the side streets adjacent to Atlantic Avenue that would be blocked. Please note that the Howard Alan Events wi!! be responsible for necessitated costs as outli.n, e0 in the attached. Consideration of the above request by Commission is appreciated. Sincerely, MARJORIE FERRER Downtown Coordinator /sk Encl DELRAY BEACH JOINT VENTURE ° Community Redevelopment Agency * Delray Beach Chamber of Commerence * Downtown Development Authority 64 S.E. Fifth Avenue, Delray Beach, FL 33483 · Tel: 561-278-0424 · Fax: 561-278-0555 1'1-21-1997 2:48PM FROM HOWARD ALAN EVENTS 9S~4723891 P. 1 TO: MARJORIE FERR~R, JOINT ~NTU~ FROM: HOW~.~N, E~NT COO~ATOR ~: 9th ~nual Downtown D~lray B~ach F,stiv~ ofth~ ~s DATE: J~~Y 10- 11, 1998 Dear Malefic, This is our ~nth ye~ for t~s nationally ranked, jufied ~ f~r. ~ per our conversation, w~ are prepared to expand this existing event wes~ of the Inter~a~at Waterway. We resp~t~lly r~uest ~ street closure for t~s event. The streets to be closed would begin at Atl~tic Ave. ~est ofTth Av~, to 50 feet before the Interco~t~ Watt,ay, then over the bridge 50 feet east ofthe bridge ~d 6ontinu~g on Ea~ Atlantic Ave. to S~ena. The tbllowing sid~ s~eets, adjacent to Atlantic Ave. 'would b, blocked: West of Bridge Atlantic Ave. Palm Squ~ E~st of Br~e Venetian Ole~son Palm Ave. Bronson East of ~rid~e, No~h of Atlantic Ave. S~ Breeze Ave. ~drews Atlantic. Ave. at A-I;A would be ~ible to local tr~c for Holiday I~ traffic and Bostons parking on S~ena. As ~ y~s p~t, we begin our set up at 6:00 p.m Friday evening, Janua~ 9, 1998. 9633 W. Bt~OW~RI) I~I.VD. * .~UITE #1 ° PLANTATION, FI, ORIDA 33324 (954,) 472-.~755 ° FAX (954) 472-389! 11-21-1997 2:41PH FRQH HOWARD ALAN EVENTS 9544723891 ' Marjorie, if you can advise Ma'. Barcinski that Howard Alan Events will be responsible for necessitated costs included, but not .limited to the following: Barricades - Traffic cones Off-duty Police Detail Port-O-Lets, Dumpsters, Waste. Receptacles Clean up crew One Million DOllar Liability Insurance Signage On-site supervision Any other logistic requirements If there are any additional questions, please do not hesitate to contact me. President Howard Alan Events, Ltd. Enclosure S.E. 7TH AVE. N.E. 7TH PALM SQUARE ~ ~ INTRAoOAST~ ~ ~ EAST RD. VENETIAN DRIVE ~ SEABREEZE AVENUE 0 ~ OLEASON STREET I PALM AVE. [ BRONSON AVE. ANDREWS AVENUE m o NO. A1A > ,~ MEMOR_~NDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM # ~ ~' - MEETING OF DECEMBER 9, 1997 APPEAL OF A PLANNING AND ZONING BOARD ACTION/THE MIRADOR AT SHERWOOD FOREST DATE: DECEMBER 5, 1997 This is before the Commission to consider an appeal of the Planning and Zoning Board's decision to deny the Master Develop- ment Plan modification for The Mirador at Sherwood Forest residential development. The subject property is located on the south side of West Atlantic Avenue at the intersection of West Atlantic Avenue and Sherwood Forest Drive/Barwick Road. At its meeting of November 17, 1997, the Planning and Zoning Board received substantial public testimony opposing the development proposal; primarily related to the density of the apartment complex, compatibility of the three-story apartment buildings with the existing one-and-two-story single family units, and traffic problems at the intersection of Atlantic Avenue and Barwick Road/Sherwood Forest Drive. The Board, with public testimony opposing and none in support of the development, voted 3-1 to deny the master development plan request based on a failure to make positive findings with respect to Chapter 3 (Performance Standards); Sections 2.4.5(F)(5) (Site Plan Findings); 3.1.1 (C) (Standards or Site Plan Actions); 4.4.7(F) (2) (PRD-Development Standards); and 4.4.7(H) (1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations; and Land Use Element Objective A-1 of the Comprehensive Plan. Recommend upholding the Planning and Zoning Board's decision and deny the master development plan for The Mirador at Sherwood Forest. THRU: DIANE DOMINGUEZ, DIRECTOR ~--cvv~ [}~w, ~ C-..~ FROM: JEFFREY A. COSTELLO~'~ SENIOR PLANNER -//~'~ SUBJECT: MEETING OF DECEMBER 9, 1997 APPEAL OF THE PLANNING AND ZONING BOARD'S DENIAL OF THE MASTER DEVELOPMENT MODIFICATION FOR THE MIRADOR AT SHERWOOD FOREST. The action requested of the City Commission is consideration of an appeal of the Planning and Zoning Board's denial of a master development plan modification for the Mirador at Sherwood Forest (apartment complex). The subject properties are located at the southwest and southeast corners of West Atlantic Avenue and Sherwood Forest Drive/Barwick Road, within the PRD (Planned Residential Development) zone district. The Planning and Zoning Board's action was taken on November 17, 1997. The properties under consideration consist of Tracts G-1 and G-2, Sherwood Forest Plat No. 1, and total 9.08 acres. The properties are the outparcels of the overall 74.91 acre Sherwood Forest planned residential development. The project involves construction of a 108-unit apartment complex on the outparcels. A complete description and analysis of the proposal is contained in the attached Planning and Zoning Board Staff Report. !!.!.~.~.~.~.~.~.~.~.~.~.~.~.~.~?, i. ?~ i', i', i', iii', iii', ii i', i', i', i', i', i', i', i', ii i', ?,iii',ii?,i~?~ i~ ~',~',~,~ ~,',,. ~~:.~ ~ ~~!~ .......................................................................................... I At its meeting of November 17, 1997, the Planning and Zoning Board reviewed the master development plan modification request. There was a substantial amount of public testimony taken opposing the development proposal. There was no public testimony in support of the request. The objections were raised primarily by the adjacent residential property owners of the Sherwood Forest single family component. The objections related to the density of the apartment complex; the compatibility of the three story apartment buildings with the existing one and two story single family units; City Commission Documentation Meeting of December 9, 1997 Appeal of Planning and Zoning Board's Decision - The Mirador at Sherwood Forest Master Development Plan Modification Page 2 and traffic problems at the intersection of Atlantic Avenue and Barwick Road/Sherwood Forest Drive. The Board had concerns with the density of the proposal (12 units per acre); the incompatibility of the three story apartment buildings with the single family residences; and the lack of open space as well as other inconsistencies with the PRD zone district regulations. The Board then voted 3-1 (Bird dissenting, Archer abstaining, McCarthy & Young absent) to deny the master development plan request based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. i iii i~i~i~i~i~i~i~i ~ i i i iii i ii i ii!i~!~ ii i ii i i i ii iii i!!~i~iiiii ii iii iii i i iiii!~ i ~ii ii i ii i ii iii i i iiii:.:.:.:i:...:.:.:::.:.:.: i::.:.:.:.:.:.:.:i:.:i:.~,:.:+ :-:.:.:.:.:.:.: ::::::::::::::::::::::::::: ::::::::::::::::::::::: i...i::.:.:.:::.:.:.:.: i i ii ! i!~!~ !ii i iii ii iii iii i?~ii i ii i ii i iii ii iii iii~ii~iiiiil i i i i i i i i i i i~iiiii~iiiiiiiiil i i i i i i i i i i i i i i i i Uphold the Planning and Zoning Board's decision and deny the master development plan for The Mirador at Sherwood Forest based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. · Planning and Zoning Board Staff Report and Documentation of November 17, 1997 PLANNING AND ZONING BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: November 17, 1997 (Continued from the October 20, 1997 Meeting) AGENDA ITEM: IliA. ITEM: Master Development Plan Modification for the Mirador at'Sherwo~ Forest, a 108-Unit Rental Development, Located at the Intersection of W. Atlantic Avenue and Sherwood Forest Drive. ~ WI'ST t .,,d A TL A N TI C A VEiN U E~ ( S. R . 806) , , , .... FoRI~ · GENERAL DATA: Owner. ............................................ Sherwood Park Golf, Inc. Applicant ....................................... Frank Dimisa c/o Mirador Corporalion, a Florida Corp. Agent. ............. : .......................... : .... Michael Weiner Location .......................................... South side of W. Aaantic Avenue, at the intersection of W. Atlantic Avenue and Sherwood Forest Drive. Property size....: ..... ; ...... ~ ...... ; ......... 9.08 Acres Future Land .Use .Map DeSignation. Medium Density Residential (5-12 units/acre) ExiSting Zoning ................. L .............. PRD (Planned Residential Development) Adjacent Zoning ................... North: NC (Neighborhood Commercial), GC (General Commercial), & CF (Community Facilities) East R-I-A (Single Family Residential) South: OSR (Open Space & Recreation) & PRD .. West PRD Existing Land Use .......................... Sherwood Park golf course driving range and vacant land Proposed Land Use ....................... Construction of a 108-unit multiple family rental development with associated parking, landscaping, and recreation facility. Water Service ................................ Available via a connection to existing 8' water mains at the northeast and northwest comers of the site, adjacent to Atlantic Avenue. Sewer Service ................................ Available via connections to an existing 8" sewer main at the northwest comer of the site, and a 4' force main on the west side of Sherwood Forest Drive, adjacent to Barnett Bank. I[I.A. The action before the Board is that of approval of a Master Development Plan modification to the Sherwood Forest subdivision to accommodate Mirador at Sherwood Forest (apartment complex) pursuant to LDR Section 2.4.5(F)(6). The subject ,' properties are located at the southwest and southeast c~tners of- West Atlantic Avenue and Sherwood Forest Drive/Barwick Road and contain approximately 9.08 acres. Pursuant to LDR Section 2.4.5(F)(6), the application is to be processed as a site plan modification. The development proposal is being processed as a major site plan modification, therefore LDR Section 2.4.5(F)(5) applies.- Pursuant to LDR Section 2.2.2(E)(7), the Local Planning Agency (P&Z Board) has the authority to take action on modifications to Master Development Plans. The properties under consideration consist of Tracts G-1 and G-2, Sherwood Forest Plat No. 1, and total 9.08 acres. The properties are the outparcels of the overall 74.91 acre Sherwood Forest planned residential development. Tract G-1 consists of 4.3 acres and is the site of the ddving range for the Sherwood Forest golf course. Tract G-2 is 4.78 acres and is a vacant parcel of land comprised of the tee area for hole #2 of the golf course at the southwest comer of the site, a golf cart path, and existing vegetation consisting Primarily of mature Slash Pine trees. At its meeting of August 23, 1988, the City Commission held first reading of a voluntary annexation request for the 74.91 acre Sherwood Park Golf. Course property with initial zoning of PRD-L (Low - Medium Density Planned Residential Development District) zone district for the south 65 acre portion of the site, and ART (Agricultural Residential Transit!onal) zone district for approximately 10 acres fronting Atlantic Avenue. The ART portion of the site (driving range and vacant land) was proposed as a "holding zone" until such time that the site was rezoned to accommodate a specific development proposal. During processing of the application the City was in the process of wdting its Comprehensive Plan and creating the associated Future Land Use Map. Future rezoning of the ART " portion was to be based upon the proposed underlying Future Land Use Map designation which was to be either Medium Density Residential 5-12 du/ac or Transitional. The PRD-L portion of the site was to accommodate the existing - golf course which was to be surrounded by zero lot line single family homes. At the first reading of the annexation ordinance, the City Commission recommended that the PRD-L also be applied to the properties fronting Atlantic P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 2 Avenue (instead of the ART), which was agreed to by the applicant. Following the direction from the Commission the request was withdrawn and re-advertised with the revised zoning of PRD-L. Subsequently, at its meeting of October 11, 1988, the City Commission approved the voluntary annexation of the entire Sherwood Park Golf Course property with the PRD-L (Low - Medium Density Planned Residential Development District) zone district. In conjunction with the Annexation, requests for Conditional Use and Site Plan approval, and an Abandonment of Forest Road were also being processed for the construction of a 131-unit single family zero lot line subdivision which would surround the existing golf course. The request was subsequently modified to accommodate 125 units. At its meeting of August 23, 1988, the City Commission approved the Conditional Use and Site Plan with conditions. One of the conditions related to the execution of an agreement between Sherwood Park Golf, Inc., Sherwood Forest Homeowner's Association, Inc., and the City of Delray Beach. The agreement was to restrict the development potential of the current golf course to an executive golf course, clubhouse and pro shop for 25 years, with 10-year automatic successive renewal periods (unless revoked in wdting by all parties). The dedication is a covenant running with the land and is binding upon Sherwood Park Golf, Inc. and its successors and assigns. Other conditions included that 1/3 of the lots contain 3 bedroom units to promote the family nature of the development; and a single story limitation on some of the lots adjacent to the Hamlet. The Board also made the determination that the residential development is integrated with the golf course to the extent that there is sufficient common open space. The development proposal included upgrading of the golf course clubhouse and a second floor addition to be dedicated for use by the Sherwood Forest Homeowners Association and that the homeowners have golf course membership opportunities. On October 25, 1988, the City Commission approved the abandonment of Forest Road. At its meeting of Apdl 25, 1989, the City Commission approved the final plat for the Sherwood Forest PRD. With the adoption of the City's Comprehensive Plan and Future Land Use Map in November 1989, the FLUM designation for the Sherwood Golf Course PRD was changed from Single Family to: Low Density Residential (0-5 du/ac) for the single .. family component; Recreation and Open Space for the golf course; and Medium Density Residential (5-12 du/ac) for the outparcels fronting Atlantic Avenue (driving range). With the adoption of the City's Land Development Regulations and Zoning Map in October 1990, the residential components (Iow density and medium density) of the Sherwood Forest PRD were rezoned from PRD-L to PRD (Planned Residential Development) and the golf course was rezoned from PRD- L to OS (Open Space). P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 3 At its meeting of February 24, 1992, the Planning and Zoning Board approved a minor site plan modification for the single family component of the Sherwood Forest PRD to reduce side setbacks for 18 lots and rear setbacks for 7 lots. In February of 1993, the City Commission gave direction to staff to create a zoning district which accommodated primarily outdoor recreational uses such as ballfields and golf courses. The resulting zoning distdct was OSR (Open Space and Recreation). In conjunction with the text amendment, rezonings were processed for the properties to which the new zoning district was to be applied. On June 21, 1994, along with various properties, the 37.31 acre Sherwood Golf Course was rezoned from OS (Open Space) to OSR. A master development plan modification application has been submitted to construct an apartment complex on the Sherwood Forest outparcels, which front Atlantic Avenue, and is now before the Board for action. The project involves construction of a 108-unit apartment complex on the outparcels of the Sherwood Forest planned residential redevelopment. The development proposal incorporates the following: E! Construction of 4 apartment buildings consisting of a 1 two-story building with 20 units and I three-story building with 24 units on the west parcel; and 2 three-story buildings with 32 units each on the east parcel for a total of 108 units; E! Construction of an interior access road on each parcel with gates at each entrance, and the construction of 234 asphalt/surface parking spaces (140 spaces on the east parcel and 94 spaces on the west parcel); El Construction of a recreational facility at the southeast comer of the west parcel (Tract G-2) adjacent to the golf course and Sherwood 'Forest Drive/Barwick Road which includes: a one-story 3,360 sq.ft, recreation building/clubhouse; a 1,000 sq.ff, swimming pool and a deck; and, a 1,400 sq.ft, tot lot at the southeast comer of the clubhouse; El Installation of an 800 sq.ft, tot lot on the east parcel (Tract G-l), on the south side of the property adjacent to Sherwood Forest Drive; El Installation of a 6' high black vinyl coated chain link fence along Atlantic Avenue and a decorative metal fence with concrete columns along the south side of both parcels; and, P & Z Board Staff Report Mirador at She[wood Forest (Apartment Complex) - Master Development Plan Modification Page 4 E! Installation of associated dumpster areas and landscaping throughout the site. I COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS Items identified in the Land Development Regulations shall specifically be addressed by the body taking final action on the site and development application/request. LDR Section 4.4.7(F) (PRD - Development Standards): Pursuant to LDR Section 4.4.7(F)(2), the following standards apply to the overall development project: (a) At least 50% of the units must be in single family detached units where the overall density is six units per acre or less, or at least 40% where the overall density is greater than six units per acre; With the proposal for a 108-unit multiple family development in addition to the existing 125 single family dwellings, the Sherwood forest PRD will have an overall density of 3.10 units per acre including the golf course and 6.19 units per acre excluding the golf course. Under either scenario, over 50% of the units will be single family detached units. However, density for this specific development is calculated at 11.84 or 12 units per acre, as the project is to function as a stand-alone multiple family apartment complex. (b) 15% of the gross area of the site must be placed in common open space where the overall density is six units per acre or less, or at least 20% where the overall density is greater than six units per acre; The site data utilizes the entire golf course and the recreation facilities of the single family component to meet open space requirements. However, unless the proposed development provides memberships to the golf course and has the ability to utilize the recreation facilities of the single family development, this requirement will not have been met. As the intent is for the proposed development to function totally separate from the single family component and the golf course, then 20% or 1.82 acres of common open space must be provided. The current proposal provides only ~ an acre of common open space. If this requirement cannot be complied with, then the intent of the PRD zone district has not been met and it would be more P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 5 appropriate to rezone the property to either RL (Low Density Residential) or RM (Medium Density Residential). (c) Minimum site area is five (5) acres The subject property is 9.08 acres of an overall 74.91 acre development, which exceeds the minimum required site area of 5 acres. LDR Section 4.4.7 {H) {PRD - Special Regulations.): LDR Section 4.4.7(H)(1) (Density): The density for a PRD is established by a numerical suffix affixed to the designation and shown on the zoning map i.e. PRD-8 limits the density to eight units per acre. To seek a density greater than that shown in such a manner, it is necessary to rezone the property. If there is no density suffix, then the maximum density shall be as allowed by the Future Land Use Map. The underlying Future Land Use Map designation for the outparcels is Medium Density Residential, 5-12 du/ac. As there is no numerical suffix affixed to the zoning designation, the density range of the Medium Density Residential land use designation applies. Any future development of the properties in question should be consistent with the densities of the surrounding residential developments. LDR Section 4.4.7(H)(2): prior to approving .a Master Site Plan for a PRD, the Planning and Zoning Board must make findings that: (a) The development plan provides for an effective and unified treatment of the development potential of the site, making appropriate provisions for the preservation of scenic features and amenities of the site. Measures are being taken within-the development plan to preserve the existing Slash Pine trees and views of the golf course are provided for most of the units. However, the development is not well integrated nor unified with the existing single family subdivision. By virtue of the density and character of the proposed buildings this development will function separately from the existing community. (b) The development plan fosters harmony with existing or proposed development in areas surrounding the site. The proposal is to construct a multiple family rental complex with a density of 12 units per acre. The subject property represents an entrance to a Iow P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 6 density, owner-occupied single family development which surrounds a golf course. In order to promote harmony and consistency with the existing PRD and surrounding communities, consideration should be given to developing the site as townhouses or villas, or a combination of the two. The density should be similar to other densities approved for multi-family components associated with other planned development districts, which typically have not exceeded 8 units per acre. Also, the proposal includes 3 story buildings with a height of 34'8" and 234' in length. The mass of these buildings is not harmonious with the single family component of the PRD. Therefore, the scale of the building should be reduced with a maximum of 2 stodes. (c) Buildings in the layout shall be an integral part of the development and have convenient access to and from adjacent uses and blocks. The proposed apartment complex does not meet this standard due primarily to existing site conditions and the original layout of the PRD. Access to the single family homes is gated, and the rental development itself is physically, divided by Sherwood Forest Drive. This standard will be difficult to achieve regardless of the type or intensity of development. (d) In the-multiple family portion, individual buildings shall be related to each other in design, masses, materials, placement, and connections so as to provide a visually and physically integrated development. Treatment of the sides and rear of buildings shall be comparable in amenity and appearance to the treatment given to the front. The apartment buildings and the clubhouse are related in terms of design, materials and mass. The buildings will not be visually or physically integrated as the development is bisected by Sherwood Forest Drive,-thus isolating one-half of the development from the other. The sides of the buildings need additional architectural details in order to be comparable to the front and rear of the structures. (e) The landscape treatment for plazas, streets, paths, and service and parking areas shall be designed as an integral part of a coordinated landscape and street furniture design. The proposal is to locate the buildings as far south as possible, away from Atlantic Avenue. This requires the provision of the sidewalks on the north side of the buildings adjacent to the parking areas. It seem appropriate to provide a pedestrian path west of the clubhouse to the westernmost P & Z Board Staff Report Mirador at She~vood Forest (Apartment Complex) - Master Development Plan Modification Page 7 buildings. Also the sidewalk which dead-ends at the clubhouse parking area must continue around the parking lot. A 30' landscape buffer is required along Atlantic Avenue and trees will be provided along the access roads and within the parking areas. The 30' landscape buffer is to consist of hedges, existing Live Oak trees, and a black vinyl coated chain link fence. This proposal includes of a decorative metal fence with concrete columns every 20 feet along the south side of the property. As the Atlantic Avenue frontage is over 1,000 feet in length, this treatment must also be provided along Atlantic Avenue rather than the proposed' chain link fence. The fence must either be set back 30' from the ultimate right-of-way line or integrated into the landscape design. While the landscape plan attempts to utilize the existing Live Oak trees, the landscape buffer should be more undulating and include the installation of landscaping to the interior edge of the 30' landscape buffer. This standard will be further addressed at the time of final site plan review. It appears that there should be no problems complying with this standard. (f) The location, shape, size, and character of the common open space must be suitable for the contemplated development in terms of density, population characteristics, and housing types; As stated under LDR Section 4.4.7(F)(2)(b), there are concems with the amount of common open spaces provided on this site. Given the property's location and its proximity to area schools, there is a good opportunity for children, including teens, to reside at this development. The proposal provides a 3,360 sq.ff, recreation building/clubhouse; a 1,000 sq.ft, swimming pool and a deck; and, a 1,400 sq.ft, tot lot at the southeast comer of the clubhouse, and an 800 sq.ft, tot lot on the east parcel (Tract G-l) on the north side of the Sherwood Forest Drive. In addition to the proposed facilities, other recreational facilities .must be provided.for teens (i.e. ballfield,, basketball court, racquetball courts). The proposed recreation facility is somewhat centrally located, adjacent to the golf course and Sherwood Forest Drive. The pool is of sufficient size to accommodate the demands of the development. While tot lots have been provided one is located adjacent to the golf course fairway and another is located within a narrow dry retention area. There are concerns with the golf balls slicing into the tot lot and the functionality of the tot lot on the east parcel. Thus, the tot lots must be relocated to areas where safety concems will be diminished and the lots will function properly. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Pa9e 8 (g) Common open space must be used for amenity or recreational purposes and must be suitably improved for its intended use. Natural features, worthy of preservation, shall be incorporated into the common open space system; The recreation area will be improved with a tot lot, swimming pool and clubhouse. As identified above, a recreational facility that accommodates teens must be provided. Attempts are being made to incorporate the existing existing slash pines into the recreation area. It may be appropriate to install a bar-b-que area and a basketball court adjacent to the clubhouse. (h) Roads, pedestrian ways, and open space shall be designed as an integral part.of the overall design and shall be properly related to buildings and appropriately landscaped; The roads, pedestrian ways and open space have been designed to be integrated as much as possible with the rest of the PRD. Landscape plans have not been provided for the areas adjacent to the buildings, roadways or pedestrian ways. This item will be further addressed at the time of site and development plan review. (i) There shall be an adequate amount of pedestrian ways and landscape spaces to limit pedestrian use of vehicular ways, and to separate-pedestrian ways and public transportation loading places from general vehicular circulation; Pedestrian ways are proposed which will provide adequate separation, however, adjacent to the clubhouse parking area, a sidewalk connection must be provided, as well as other connections on the west parcel from the stainvells to the' sidewalks. (j) The location .and .design of pedestrian ways should emphasize desirable views of new and existing development. The location and design of the proposed pedestrian ways do not emphasize desirable views of the existing golf course. As previously stated, the parking areas and the associated pedestrian ways are located on the north sides of the buildings to separate the project from Atlantic Avenue. It is possible to provide a pedestrian path along the soUth side of the west buildings to the clubhouse which will provide a view of the golf course. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 9 {k) Tot lots and recreational areas shall be a feature of all new housing developments which utilize PRD zone districts. (OSR A-3.3) The development proposal provides two tot lots; one adjacent to the clubhouse area (west parcel) and one on the south side of the east parcel. The tot lot adjacent to the clubhouse is located adjacent to the fairway which is an unsafe situation. The tot lot on the east parcel is located within a narrow dry retention area. It is apparent that there has been no significant thought given to the location of the tot lots and their functionality. The tot lots must be relocated to eliminate the conflicts. It may be possible to locate the clubhouse tot lot northwest of the building and west of the clubhouse parking area. If the modification is approved, details of the type of playground equipment to be placed within the tot lot must be sUbmitted with the site plan application and approved by SPRAB. LDR Section 4.3.4{H) (Special Landscape Setbacks): Pursuant to LDR Section 4.3.4(H)(6)(b), a 30' landscape setback must be provided along Atlantic Avenue, as the property is over 300 feet in depth. Within a special landscape setback,, no structures shall be altered, erected, or reconstructed; nor shall any paving be allowed except for driveways and sidewalks which lead to structures on, or provide access to, the site and then only when generally perpendicular to the frontage. However, waivers may be granted to these restrictions at the time of the site plan review in Order to accommodate landscape feature, decorative walls, meandering sidewalks,' and other decorative pedestrian ways. The 30' wide landscape buffer has been provided except for a short distance on the west parcel where the access road encroaches into the required 30' buffer by approximately 8'. The reason for the encroachment relates to an attempt to save existing pines and palms within a landscape median. In this situation it may be appropriate to allow the encroachment which is only 100 feet'in length. The fence proposed within the landscape island must be located on the interior edge of the 30' wide landscape buffer, whereas it is only set back 15'. LDR Section 4.3.4(K) Development Standards Matrix: .. Building Height Within the PRD zone district, the maximum building height is 35' and the proposed 3-story apartment buildings will have a height of 34'8", the 2-story apartment building will have a height of 25', and the clubhouse will have a height of 22'. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 10 Perimeter Building Setbacks Within the PRD zone district 1 and 2 story multiple family buildings require a front and side street setback of 25', side interior setback of 15', and a rear setback of 25'. The 3 story multiple family structures require a 30' front and side street setback, and a 25' side intedor and rear setback. While the majodty of the buildings comply with the setback requirements, on the east parcel a corner of the west building and a support/decorative column for the east building are only setback 28' where 30' is required. The plans must be revised so that the buildings meet the setback requirements. .LDR Chapter 4.6 Supplementary District Regulations.: LDR Section 4.6.9 (Parking Requirements) Bicycle Parking Pursuant to LDR Section 4.6.9(C)(1)(c), at private recreation facilities, bicycle parking areas shall be provided in a designated area and by a fixed or stationary bike rack. The proposal does not indicate a bike rack at the clubhouse building. Vehicle Parking Pursuant to LDR Section 4.6.9(C)(2)(c), 225 spaces are required for this development and a total of 234 spaces are. proposed. The guest parking has been distributed on the 2 separate parcels as if they were stand alone parcels. The actual calculations differ from those indicated under site data. Thus, the site data must be revised accordingly. Stacking Distance Pursuant to LDR Section 4.6.9(D)(3)(c)(2), provisions must be made for stacking and transition of incoming traffic from a public street, such that traffic may not backup into the public street system. Provisions must be made to provide 100' of clear stacldng in advance of all guardhouses or security gates. Further Section 4.6.9(D)(3)(c)(3) states that greater stacking distance may be required as a condition of approval, and the stacking area can be reduced when supported by a traffic study. The proposal indicates that a 50' stacking distance is being provided for both entrances from the call box to the right-of-way line for Sherwood Forest Drive. Each access driveway provides two lanes: one for residents and one for guests. As the development is separated, the number of vehicular trips entering and exiting each entrance is approximately 50% less than that which would occur if P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 11 all the units entered the development from one access point. With the residents and guest having separate entrance lanes, delays are reduced significantly. This situation has been approved with other development proposals where dual entry lanes were provided. Thus, the intent of the code has been met. Back. out Parking Pursuant to LDR Section 4.6.9(D)(2)(c) (Provisions for Ingress and Egress), each required parking space shall be accessible at all times. Access which conforms with minimal aisle standards and which includes maneuvering area so that a vehicle must be able to enter and exit the parking area onto a street or alley in a forward manner shall be provided when the street is a private street within a planned development and the street, at the location of the parking, has less than 200 ADT. As the portion of the primary access road on the west half of the east parcel exceeds 200 ADT, back-out parking is not permitted. On the north side of the east parcel, the parking lot is designed so that vehicles must back-out into the access road. The parking lot is design with a K intersection which is an unsafe design and may encourage those utilizing the access road to "cut through" the northwest parking area. It is more appropriate to eliminate the parking lot driveway onto the access road and direct vehicular traffic towards the parking lot to the south. This must be addressed with the site plan submittal. LDR Section 4.6.16 (Landscape Requirements): Pursuant to LDR Section 4.6.16{H)(3)(k), whenever parking tiers abut, they shall be separated by a minimum 5' wide landscape strip. The strip shall be in addition to the parking stall. Nonmountable curbs are not required for these landscaping strips, providing carstops are provided. At the northwest comer of the west parcel, the required landscape strip between.: parking tiers has not been provided. Pursuant to LDR Section 4,6,16(H){3){d). a landscaped barrier shall be provided between off-street parking area or other vehicular use area and abutting properties. This landscape barrier shall be located between the common lot line and the off-street parking area or other vehicular use area in a planting strip of not less than 5' in width. On the east and west parcel, where the north side of the parking area abuts the interior access road, this requirement has not been met. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 12 In order to obtain relief from the above requirements, a waiver request must accompany the site plan application with action by SPRAB (Site Plan review and Appearance Board). Site Plan Technical Items; The following are items that do not require specific action of the Board, however, the items must be addressed with the submittal of revised plans. 1. Site lighting fixture details must be provided on all plans and a photometrics plan must be provided which comply with LDR Section 4.6.8. 2. Pursuant to the Sherwood Forest Plat No. 1, there shall be no buildings or construction of any kind utility or drainage easements. Along the east side of the property, adjacent to the Hamlet, the parking area and fences encroach into the 20' utility easement and the a/c units are proposed within the easement. The east portion of the site must be modified to eliminate the encroachments. 3. The floor plans indicate that a meter room will be provided on the east side of the buildings which has not been delineated on the site plan. Thus, the meter room for the easternmost building will encroach into the 20' utility easement which is prohibited per the plat. The meter room and stairwells are included as part of the building, thus their locations must be indicated on the site plan to ensure that building setback requirements are met and encroachments into utility easements do not occur. 4. Details of the mail kiosks must be indicated on the plans. The kiosk on the west parcel should be located on the south side of the parking area between the apartment buildings. 5. Pursuant to LDR Section 6.1.6 (Traffic Signals), the applicant will be responsible for signalization changes necessary for this development at the .... Atlantic Avenue and Barwick Road/Sherwood Forest Ddve intersection. 6. On the west parcel, the proposed dumpster enclosure must be oriented towards the east so the Waste service vehicles (BFI) can easily access the .* dumpster. The dumpster should be located across from (west of) the proposed location. 7. The dumpster on the east parcel must not be located on the primary access road, and should not be odented towards the east as BFI vehicles will be entering the site from the west. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 13 8. The drive aisles at the clubhouse parking range in width from 22' to 28'. Pursuant to LDR Section 4.6.9(D)(4)(d), the standard aisle width is 24' and cannot exceed 26'. 9. The clubhouse parking area "cul-de-sac" must have a turning radius of 45o to accommodate emergency vehicles. 10. On the west parcel, the sidewalk on the east side of the apartment building must be located further to the east and provide a continuous pedestrian way along the access road. Il. Pursuant to LDR Section 4.6.16(E)(3) (Vehicular Encroachment), all landscaped areas must be protected with type "D" curbing. On the site and landscape plans, no curbing has been indicated adjacent to the landscape areas or islands. 12. Drainage, fire flow and lift station calculations must be provided. 13. A copy of the Lake Worth Drainage District permit, modified South Florida Water Management permit, and HRS water and sewer permits be submitted prior to issuance of a building permit. 14. Sidewalks and pedestrian access consistent with ADA Standards must be indicated on the site and engineering plans. Curb cut ramp details must also be provided. 15.A pavement marking and traffic control plan .must be provided. The plan must address marking of the double inbound entrance drive merge condition, marking of double outbound lanes, stop bars, pedestrian crossings, etc. 16.The invert elevation of the manhole at the northwest corner of the site that will be tied into must be indicated. 17. Hydraulic calculations must be provided for the sizing of the 2" water services to all buildings. The engineering plans must reflect the City of Delray Beach Standard Engineering Details for water and sewer. 18.The City of Delray Beach parking stall striping details must be utilized and " indicated on the plans. 19.The swimming pool area must be surrounded be a minimum 4' high fence, which must be indicated on the plans. 20. The landscape plan is inconsistent with the site and engineering plans. All plans must be consistent with each other. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) ~ Master Development Plan Modification Page 14 Subdivision Plat A replat of Tracts G-1 and G-2 must be processed for the dedication of easements. The plat must be processed pursuant to Chapter 5 of the Land Development Regulations and recorded prior to issuance of any building permits which has been attached as a condition of approval. With the plat submittal a Declaration of Unity of Title must also be provided and recorded in conjunction ' with the plat to ensure that the two properties will be unified and under one ownership. Master Property Owner's Association The Sherwood Forest Plat No. I dedicates Sherwood Forest Drive, pdor to the single family component's entry gates, to the Sherwood Golf Club Master Property Owner's Association. The Association is to consist of Sherwood Forest Homeowners Association, Inc., Sherwood Golf Park, Inc., and the owner's/association of the parcels fronting Atlantic Avenue.With the plat submittal the Master Association documents must be provided. Driveway Locations/Conflicts There are concems with the potential pedestrian and vehicular traffic conflicts at the entrances to the development. Sherwood Forest Drive has a sharp curve at the proposed entrances to the development. Thus, the east driveway and the pedestrian crosswalk may be somewhat obstructed for vehicles traveling from the single family component or the golf course. In order to eliminate potential conflicts, it is appropriate to post signage warning motorists of the driveways and pedestrian walkway along Sherwood Forest Drive at both approaches to the project's entrances. Also, speed humps should be installed to ensure speed reductions at these areas. Pursuant to LDR Section 3.1.1 (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, written materials submitted by the applicant, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the following areas: P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 15 (With the site plan approval of August 23, 1988 for the Sherwood Forest single family subdivision, positive findings were made with respect to consistency with the Future Land Use Map, Concurrency, Consistency with the Comprehensive Plan and Compliance with the Land Development Regulations. The following analysis pertains to the proposed 108 unit apartment complex.) Section 3.1,1(A) - Future Land Use Map: The subject property has a Future Land Use Map designation of Medium Density Residential 5-12 du/ac and is currently zoned PRD (Planned Residential Development). The PRD zoning district is consistent with the Medium Density Residential land use designation. Pursuant to LDR Section 4.4.7(B)(3), multiple family structures are permitted within the PRD zone district. Based upon the above, it is appropriate to make a positive finding with respect to consistency with the Future Land Use Map. Section 3.1.J(B) - Concurrency: As described in Appendix A, a positive finding of concurrency, can be made as it relates to water, sewer, streets and traffic, drainage, parks and recreation, open space, and solid waste, providing the conditions of approval are addressed. Section 3.1.J (C) - Consistency (Standards for Site Plan Actions): The proposal is inconsistent with certain goals, objectives and policies of the Comprehensive Plan, and the Board needs to make a specific finding that the beneficial aspects outweigh the identified points of conflict (per 3.1.1(C)). Section 3.J.1.. {D) ~ Compliance With the Land Development Regulations: As described under the Master Development Plan Modification Analysis of this report, a positive finding of compliance with the LDR's can be made, provided the conditions of approval are addressed. Comprehensive Plan Policies: A review of the. goals, objectives.' and policies of the City's Comprehensive Plan was conducted and the applicable goals, objectives and policies were identified. Land Use Element Policy A-3.1 - Prior to recommending approval of any development land use application which comes before it, the Local Planning Agency (Planning and Zoning Board) must make a finding that the requested, land use action is consistent with Objective A-3 which states that the development of remaining vacant land shall provide for the retention of open space and natural resources, as provided for under Policy B-2.5 of the conservation element and/or Policy B-1.4 of the Open Space and Recreation Element. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) ~ Master Development Plan Modification Page 16 Open Space and Recreation Element Policy B-1.4: New development shall provide central focal points at entries and landscape buffers along the external (arterial, collectors) streets which service them. Back-lotting of individual homes along such streets should be allowed only when special landscape buffers are provided between the rear yards walls or fences and the right-of-way. In order to address this policy, an extensive landscape buffer with decorative fencing must be installed as previously discussed on page 6 and 7, under LDR Section 4.4.7(H)(2)(e). This policy will be further addressed at the time of final site plan review. There should be no problems complying with this policy. Conservation Element Policy B-2.2: Whenever and wherever significant or sensitive flora and fauna communities are identified pursuant to Policy B- 2.1, they shall be preserved as if they were environmentally sensitive areas as identified in Objective B-1. A biological assessment has been submitted indicating that there are no environmentally flora or fauna communities that exist on the site. It is noted however that existing mature slash pines are being retained. Future Land Use Element Objective A-1 - Vacant property shall be developed in a manner so that the future use and intensity is appropriate in terms of soil, topographic, and other applicable physical considerations, is complementary to adjacent land uses, and fulfills remaining' land use needs. Physical Considerations The property has been disturbed and there are no physical conditions that would prevent development of the property. Complementary With Adjacent Land Uses The development proposal is to function as a stand-alone multiple family apartment complex without the ability to interact with the Sherwood Forest single family component, or the golf course. As a stand alone facility, the project has a " density of 11.84 or 12 units per acre. The multiple family structures will be 34'8" in height, which is insensitive to the adjacent single family development, which consists of one and two story structures with a maximum height of approximately 20'. There is a concern with regard to compatibility of the proposal with the existing single family residences. The subject property represents an entrance to a Iow density, owner-occupied single family development which surrounds a golf course. Therefore, consideration should be given to developing the property P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 17 to accommodate owner-occupied units (townhouses or villas, or a combination of the two). The'adjacent residential development to the east (The Hamlet - a country club community) is developed at 1 unit per acre and the residential development to the south (Sherwood Forest) is developed at 2 units per acre. The following are the densities of the surrounding residential developments within a 2,000 foot radius of the subject property: Subdivision units/acre Country Club Acres 4.6 du/ac High Point 8.0 du/ac Homewood Lakes 6.0 du/ac Lee's Crossing 3.8 du/ac Highland Trailer Park 7.7 du/ac Sunset Pines 7.6 du/ac Franwood Pines 3.0 du/ac Kingsland Pines 3.0 du/ac Kingsland 1.0 du/ac Villas D'Este 10.5 du/ac Windy Creek/Hanover Square 4.5 du/ac It is noted that while the Villas D'Este project is being developed at 10.5 units per acre, the project includes an extensive amenity package, garages for each unit, and is oriented so the units are primarily adjacent to the school site, away from single family residences. Also, the Villas is a stand alone project which has its own access and is not part of a planned residential development. The portion of the property that abuts the single family subdivisions is zoned RM-6 (Medium Density Residential - 6 units per acre) and the balance is zoned RM (adjacent to Carver Middle School and Rod and Gun Restaurant). The density should be similar to other densities approved for multi-family .... components associated with other planned development districts which typically have not exceeded 8 units per acre (e.g. Sabal Lakes, Hammock Reserve). Any future development of the property should be consistent with the densities of the surrounding residential developments. To be consistent with adjacent .- properties, future development with a density of 8 or less units per acre should be allowed. Fulfills Remaining Land Use Needs There is a concern with the construction of another apartment complex in addition to those that have been recently constructed, are currently under P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 18 construction, or have recently received approvals. These projects total more than 1,400 rental units. It is noted that most of the recently approved developments have a greater choice in unit type and 'size, and more extensive amenities than what is being proposed by the Mirador. According to a housing needs analysis prepared for the City in 1995, these units will satisfy the majority of the City's demand for rental housing through the year 2005. In addition, the City has been working to promote housing in the downtown area. The revised Housing Element transmitted to DCA includes a policy (B-2.6) which states that: "Housing in and near the downtown area, in close proximity to employment opportunities and services, is a critical need. In order to help stimulate demand for new housing in and around the Central Business District, the development of new rental housing projects outside of the TCEA and North Federal Highway area is discouraged: The subject property is located outside the areas described above. Based upon the above, the proposal does not help to fulfill the City's remaining land use needs. Land Use Element Policy A-'I.5 in order to provide a more balanced demographic mix, the development of "large scale adult orientated communities" on the remaining vacant land is discouraged. This policy is being elaborated upon with the recently transmitted Comprehensive Plan via proposed Housing Element Policy B-2.2 which states the following: "The development of new adult oriented communities within the City is discouraged. New housing developments shall be designed to accommodate households having a range of ages, especially families with children, and shall be required to provide 3 and 4 bedroom units and activity areas for children ranging from toddlers to teens. This requirement may be waived or modified for residential development located in the downtown area, and for infill projects having fewer than 25 units': The proposed 108 unit multi-family development will have 41% one bedroom and 59% two bedroom units. With a middle school located across the street from this property and its close proximity to elementary schools it is important that any residential development on this site be designed to accommodate families. In order to encourage families at least 25% of the units must be 3 bedroom units " and at the most 25% one bedroom units. This is similar to the requirement which was imposed with the single family component of the Sherwood Forest PRE), which required 1/3 of the units to be 3 bedroom units. Further, although tot lots have been indicated, no facilities have been provided for teens. While this is not yet a formally adopted policy, the City Commission approved transmittal of the policy to the State DCA (Department of Community Affairs) for their review. It is scheduled to be formally adopted in December. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 19 LDR Section 2.4.5(F)(5) (Site Plan Findings): Pursuant to Section 2.4.5(F)(5) (Findings), in addition to provisions of Chapter Three, the approving body must make a finding that the development of the property pursuant to the site plan will be harmonious with the adjacent and nearby properties and the City as a whole, so as not to cause substantial depreciation of property values. The property is surrounded by the following zoning districts: to the north, across the Atlantic Avenue, is zoned CF (Community Facilities), GC (General Commercial) and NC (Neighborhood Commercial); to the south is zoned PRD and eSR (Open Space and Recreation); to the east is zoned R-1-A (Single Family Residential); and, to the west is zoned PRD. The existing land uses are: to the north is Carver Middle School, FINA gasoline station, Handi Mart, Good Stuff Furniture; to the south is the Sherwood Forest single family subdivision (125 units) and Sherwood Golf Course; to the east is the Hamlet, a country club community with a density of 1 unit per acre; and, to the west is the west end of Sherwood Forest Drive (secondary access point to the Sherwood Forest single family homes). Compatibility with the adjacent residences is a concern. The proposed density for the development is 11.84 or 12 units per acre. The density and building mass are out of character with the existing residential developments to the south and east. The property consists of two outparcels at the entrance to a Iow density, owner-occupied single family development which surrounds a golf course. This proposed development will not be harmonious with the adjacent residential subdivisions and may not enhance property values within this area. The development proposal is not within a geographical area requiring review by the Community Redevelopment Agency (CRA) or the Downtown Development Authority (DDA). Site Plan Review and Appearance Board: If approval of the Master Development Plan Modification is granted, a full site plan submittal will follow. Final action on the site plan submittal rests with the SPRAB (Site Plan Review and .Appearance Board). The site plan must accommodate concems raised through the master development plan modification, and address the listed conditions of approval. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 20 Special Courtesy Notices: Courtesy notices were provided to the following homeowner's and neighborhood associations: [] Delray Property Owners [] President's Council El Greensward Village (within The Hamlet) El PROD (Progressive Residents of [] The Hamlet Delray) [] Hanover Square/Windy Creek El Sherwood Forest El High Point Sections 1-7 El Sunset Pines [] Highland Trailer Park El Woodlake Letters of objection have been attached. There were no letters submitted supporting the prOject. Additional letters .of objection and support, if any, will be presented at the Planning and Zoning Board meeting. The development proposal to construct a 108-unit apartment complex is inconsistent with policies of the Comprehensive Plan, LDR Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2)(a) (PRD - Development Standards) and 4.4.7(H)(2)(b), (e) and (f) (Master Site Plan Findings). There are concerns which relate to the proposed density of 12 units per acre, the compatibility of the 3 story buildings with single family component, the lack of 3-bedroom units, the lack of recreation facilities for teens, and the lack of common open space. If approval is recommended by the Board, conditions should be imposed which relate to a reduction in the number of units, installation of the right turn lane on Atlantic Avenue into the site, relocation of the tot lots, provision of additional recreation amenities for teens, the provision of 3 bedroom units, reduction of the building height, and a requirement to provide landscaping in excess of code requirements along Atlantic Avenue. A. Continue with direction. B. Approve the Master Development Plan Modification for Mirador at Sherwood Forest based upon positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards) and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development ~egulations, and policies of the Comprehensive Plan, subiect to the following conditions: P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 21 1. Submission of a full site plan application to be processed pursuant to Section 2.4.3 of the Land Development Regulations and to address the 'q'echnical Items" and conditions of approval listed in the Staff Report; 2. That the dght turn lane along Atlantic Avenue be designed to comply with FDOT standards and the signalization changes at the intersection of Atlantic Avenue and Barwick Road be completed prior to issuance of a Certificate of Occupancy; 3. That at least 25% of the units be 3 bedroom units and no more than 25% 1 bedroom units; 4. That the height of the buildings be reduced to 2 floors; 5. That the project density be no greater than 8 units per acre; 6. That the tot lots be relocated to a safe and usable area and installed pdor to issuance of the first Certificate of Occupancy; 7. That recreation facilities for teens (i.e. basketball court, racquetball court) be installed prior to issuance of a Certificate of Occupancy; 8. That prior to issuance of any building permits, the re-plat of Tracts G-1 and G-2 must be recorded and Association documents executed; 9. That the parking lot on the east parcel be redesigned to eliminate back-out parking into the access road; 10. That the buildings comply with the building setback requirements; 11. That an additional hydrant provided with the location to be determined by the Fire Marshal; 12.That an easement be obtained from the Sherwood Forest Homeowners AssOciation for the installation of the proposed force main across Tract 0-4; 13. That extensive buffering including decorative fencing provided along Atlantic Avenue; and; 14. That 20% of the site be in common open space. C. Deny the Master Development Plan Modification for Mirador at Sherwood Forest based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 22 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. Deny the Master Development Plan Modification for Mirador at Sherwood Forest based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan. Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. Attachments: El Appendix A El Appendix B El Site Plan El Landscape Plan Re: Atlantic Avenue Buffer El Building Elevations Report prepared by: Jeff Costello. Senior Planner Pursuant to Section 3.1.1(B) Concurrency as defined pursuant to Objective B-2 of the Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and/or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Wa~r: Water service will be provided via installation of an 8' water main-which will be located within the parking areas and across Sherwood Forest Boulevard. The main will connect to existing 8" water mains at both the northwest and northeast comers of the site, thus looping the system. In order to provide adequate fire suppression, an additional hydrant must be .provided (preferably at the southwest comer of Sherwood Forest Ddve and the project's west driveway) and the three (3) story apartment buildings must be provided with fire sprinkler systems. The appropriate location for the additional hydrant will be determined by the Fire Marshal. With installation of an additional hydrant, the proposal will comply with the requirement to provide a fire hydrant every 300'. Pursuant to the City's Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant for the City at build-out. Based upon the above, a positive finding can be made with respect to this level of service standard. Sewer: The sewer system will be located primarily within the parking areas of both sites. Sewer service is to be provided via installation of an 8" sewer main on the east parcel which will gravity flow westward underneath Sherwood Forest Drive to a lift station with a 4" force main. The force main will connect to an existing 4" force main along the west side of Sherwood Forest Drive, adjacent to the Barnett Bank site (west side of the development). An 8" sewer main will also be installed for the westernmost building which will connect to an existing 8" main at the northwest comer of the west parcel (Tract G-2). In order to install the 4" force main across open space tract 0-4, along the west side of the west parcel, a 12' utility easement must be obtained from the Sherwood Forest Homeowner's Association. If an easement cannot be obtained the sewer system must be redesigned accordingly. Pursuant to the City's Comprehensive Plan, treatment capacity is available at the South Central County Waste Water Treatment Plant for the City at build-out. Based upon the above, a positive finding can be made with respect to this level of service standard. Drainage; Drainage is to be accommodated via installation of drainage pipes within the parking areas which will drain to the dry retention areas and overflow/outflow to the existing drainage system. The existing drainage system outflows into the L-34 Canal, which traverses the Sherwood Golf Course. Drainage calculations have not been submitted. No problems are anticipated complying with South Flodda Water Management Distdct or Lake Worth Drainage District Standards. Streets and TraffiC: A traffic study has been submitted indicating that the proposed 108-unit multiple, family development will generate a total of 573 new vehicle tdps onto the surrounding roadway network in addition to the 183 currently generated by the existing 22 tee ddving range for a total of 756 daily trips. While the net increase in trips should not significantly impact the surrounding roadway network, installation of a right turn lane on Atlantic Avenue into the site will be necessary. With the Sherwood Forest Plat No. 1, additional right-of-way was provided on eastbound Atlantic Avenue to accommodate a right turn lane. The right turn lane must be designed and constructed per FDOT Standards. Also, pursuant to LDR Section 6.1.6 (Traffic Signals), the applicant will be responsible for any signalization changes necessary for this development at the Atlantic Avenue and Barwick Road/Sherwood Forest Drive intersection. The Palm Beach County Traffic Division has deemed the traffic study to be in compliance with the Palm Beach County Traffic Performance Standards Ordinance. Based upon the above, a positive finding can be made with respect to traffic concurrency, provided the right tum lane is installed. Parks and Recreation Facilities; The proposed units will not have a significant impact with respect to level of service standards for parks and recreation facilities. However, pursuant to LDR Section 5.3.2, whenever a development is proposed upon land which is not designated for park purposes in the Comprehensive Plan, an in-lieu fee of $500.00 per dwelling unit will be collected prior to issuance of building permits for each structure. Thus, an in-lieu fee of $54,000.00 will be required of this development. Solid Waste: Trash generated each year by this development will be approximately 0.52 per apartment (108 units) for a total of 56.16 tons/year. This increase can be accommodated by existing facilities and thus, will not be significant with respect to this level of service standard. l~,.:~~~~~!!===================================================== :.: . .~ ......... A. Building design, landscaping, and lighting (glare) shall be such that they do not create unwarranted distractions or blockage of visibility as it pertains to traffic circulation. Not applicable Meets intent of standard Does not meet intent B. Appropriate separation of travelways is made for vehiCles, bicycles, and pedestrians in a manner consistent with objective D-t of the Traffic Element. Not applicable Meets intent of standard Does not meet intent C. Open Space enhancements described in Open Space and Recreation Objective B-I, are appropriately addressed. Not applicable Meets intent of standard Does not meet intent_See discussion on Page 14. D. That any street widening associated with the development shall not be detrimental upon desired character and cohesiveness of affected residential areas. Not applicable Meets intent of standard Does not meet intent Eo Development of vacant land which is zoned for residential purposes shall be planned in a manner which is consistent with adjacent development' regardless of zoning designations. Not applicable.__ Meets intent of standard__ Does not meet intent_See discussion on Pages 15 and 16 F. Vacant property shall be developed in a manner so that the future use and intensity are appropriate in terms of soil, topographic, and other applicable physical .considerations; complementary to adjacent land uses; and fulfills remaining land use needs. Not applicable ~ Meets intent of standard__ Does not meet intent_See discussion on Page 1(~ G. In order to provide for more balance demographic mix, the development of "large scale adult oriented communities" on the remaining vacant land is discouraged. Not applicable. Meets intent of standard___ Does not' meet intent - _This _policy_ has been elaborated u.oon in the proposed policy identified on Page 16, -! ( ( ~+~i ~i :Il I "" ~i ~,G. !-FI.HI- FI.Il.II. FI.Il 9/23/97 Plan~g Dk~mr Dine Do~quez 100 N.W. F~t Ave. Dekay B~ch, FL Subject: West A~m6c Ave. Development -- ~ador ~'She~ood P~k Project Ms. Do~quez We ~e ve~ concerned about ~e developmm~ ~ ~e B~ick Koad/She~d Forest D6ve md A~fic Ave. ~ea ~ Dekay Bea~. It appe~ &at ~i~ ~ ~e effom ~ ~g to spruce up A~mfic Ave. ~at we &e wrong ~e~on. ~ ~e adv~t of C~er school ~ree ye~ ~, ~e school bo~d h~ bern ad~g po~ble c~srooms ~ch y~, 3 ~ 1995, 5 ~ 1996 were pNced on comer of A~unfic Ave. md B~ Road md 5 so f~ ~ 1997. ~ b~g a detfimmt to D~ays beau~cafion effom, espe~y &ose pNced l~t y~ 0 996). We ~de~d &at ~e d~ h~ r~6ved pzopos~ to r~lace &e ~ station on ~e comer of Afl~fic Ave. ~d B~ick Road. ~e ~t ~g we n~d ~ ~o&er ~ station. ~e ~fly have 6 ~ &e 2 ~es west of Coa~ess on Atlantic Ave.) Ass~g &e ~ station ~ be r~laced, we ce~ly hope o~ p~g bo~d md co~sione~ keep ~ mind &e es~efics-~d ~ffic pa~ems ~ ~ ~em ~ ~e ae~ f~ w~ &e Pl~g md ~nlng Bo~d ~d commi~sioae~ wD be re~g plans for b~g r~ ap~ea~ on ~o p~ of ~d c~fly owned by &e She~ood P~k Go~ ~c. locat~ on &e sou& side of A~fic Ave. Tract G1 ~ 4.3 act~ ~d Tta~ G2 ~ 4.82 a~es. ~e plann~ d~si~ ~ 11.~ ~ p~ acre. N~ess to say, ~ is si~ficmt for such a sm~ ~ where ~e 6~ ~d ~id~ ~e spea~g a lot of ~ to ~pmve. ~e ~ffic coming md ~g ~om A~fic Ave. ~om &e ~Ife~, 125 homes She~o~ Fot~t ~d 108 ap~m ~om &e proposed ~dor ~ She~ood Proje~ does not l~d i~df to b~g a ve~ safe ~onm~a ~ ~ ~ M~fioa to · e safe~ h~d to &e resid~ ~ She~ood Forest md ~lfe~ wi~ ~e e~g b~d c~e md ad~fion~ shmbe~/w~s etc. Plebe note, ~e west ~ to Shev~vood Forest is not an acceptable alternative for an exit for the Mirador project due to the fact that Tract 0-4 is owned by the Sherwood Forest Home Owners Association and we would not approve the transfer of this tract to Sherwood Golf Park Inc. nor the Mirador Project. In addition, the width of the road and the fight turn only on Atlantic Ave. would also appear to be unacceptable from a safety standpoint. The existing drainage for the Sherwood Forest development would be. taxed immensely and would probably cause flooding with the additional requkement to handle the Mkador Project. As is evident, we are very upset with the current proposal from several aspects: o Safety - traffic in and out of the east entrance of Sherwood Forest Drive o Aesthetics - 108 units in such a small area is detrimental o Property Values - this type of complex c'a_ n~ot enhance the property value of homes in the area o Flood Control - and the impact on the existing Sherwood Forest home owners We would expect that these points would be obvious to the Planning and Zoning Board and our city commissioners and, as a result, the proposal as submitted by the Mirador Project would not be approved. Concerned Residents Barbara A. Owens ~o/~4/97 City Hall Planning & Zoning Board 100 N.W. Fix'st Ave. Delray Beach, FL 3344q Subject:. West Atlantic Ave. Development -- Mirador ~ Sherwood Park Project Ref.: My letter to the Mayor and City Commissioners dated 9/23/97 As indicated in the ref. letter, I am very concerned about the potential of flooding of homes, especially mine, once the Mirador ~ Sherwood Park Project is completed. With present conditions, d-ring periods of heaW rains, we have experienced extremely high waters in the drainage easement along the northeast side of the golf course. High waters to the extent that the water has risen to within five feet of our house. Based on the Platt Maps the three drains along the road near the driveway to the golf course parking lot drain in the easement behind lots 1 through 10. This is in addition to four other road drains in f~ont of the said lots. Adding additional drainage to this easement would certainly result in flooding. In addition, two road drains exist at the proposed entrances to the east and west complexes. The Platt Maps do not indicate where they drain, ha viewing the surrounding property, their doesn't appear to be a satisfactory drainage area. If in fact they do drain into the aforementioned drainage easement again, flooding potential is increased. At this point, it is not apparent how the drainage will be handled for Tracts Gl, G2 and El. This needs to be explained to the home owners in the affected areas. .Fames W. Owens PLANNING & ZONllq~f ARTHUR ZWEIGENHAFT 425 Sherwood Forest Drive Delray Beach, Florida 33445 September 28, 1997 City of Delray Beach, Florida IO0~N. W. First Avenue Delray Beach, Florida 33444 Dear Mayor Alperin: It is most difficult for my wife and I, as homeowners in a beautiful development like Sherwood Forest, to understand why you as our elected Mayor and other responsible officials in your administration, are willing to practically destroy the way of life in a communi.ty that's tried so hard to build and maintain an esthetically beautiful and serenely quiet enclave in a city 'that seems to be intent on jamming "run-of-the-mill" rental apartments into every squgre inch of iand'that developers can get their hands on, no matter who it impacts. Don't you feel'that you have'a responsibility to a group of dedicated residents to maintain the.atmosphere that was sold to them; an atmosphere that was open with large'areas of grass, shrubs and trees as we.enter and as we drive through? .Is/it- possible that for the addition of a few tax dollars, y~u'who are sworn to safeguard'the interests of loyal residents who spent hard-earned savings'to buy their homes and are tied to this city through ownership, are Willing to sell us "down the river" for a bunch of "lease-holders" who are here today and gone tomorrow? These are ~h.e questions my wife. and I are.are, pondering as we are'contemplating the brick ghetto that is being considered.by your administration for the two infinitesmal pieces of property that the Sherwood Park Golf Course is trying to unload 'for profit after we were told that the golf course could not be developed in the way that's being considered and the Driving Range was shown'to us as an integral part of the golf course! Talk about devious metho.ds of making profit. Now, the' next' question we have is, are you going to become a part'er in this Shameful deceit of unwary, trustin~ residents? Up to now, I've concentrated on the destruction of beauty of' the lovely area in which we now live. How about the destruction of lives in the disruption of existing traffic patterns when traffic will be more than doubled for the provision of entrances and exits in an area that, at present, accidents because of the poor visibility due to the curving nature of the road. Additional pedestrians adds to the problem significantly. 9. SPRINKLER SERVICE - The City will certainly require the builder to provide Sprinkler Service to water whatever lawn areas are prodded. The proposed plan shows no provision for a well or distribution system. At the present time, the berms on both sides of the proposed site are watered by the Sherwood Forest Homeowners' Association under an agreement made between the Sherwood Forest Developer (Talon Construction Co.) and the Golf Course. With a change in ownership, our sprinkler system will be capped, and the rental units will have to be provided with a new system by the Developer. I assume that a space will have to be provided for a well and pumps on the property. 10. DENSITY - The entire proposal makes use of every square foot of the area on the site, making use of the Golf Course itself as so-called open space to fulfill that zoning requirement. We question whether it is reasonable to allow so many rental units on this limited site. Our calculations of the acreage available in the site works out to 8.8 acres, not the 9.12 shown on the drawings which, incidentally, include roadways. We have done our calculation based on 44,000 Sq. Ft. per acre. I sincerely hope that our concerns will be addressed by all parties and that the ultimate resolution will be in the best interest of not only our residents, but for preserving the quality of life of the greatly admired "Village by the Sea". I thank you for your consideration and apologize for the length of this epistle. Arthur Antin, President September 26, 1997 Rich & Ruth Frankfort ~to~ ~ ~~, ~r~ ~.~,~ ~,~-,.~,: ~,~z .,,.,~...~ _,, .... , ¢~. ~.~..~ ~ ~ ~~ ~ .~ ~~.~--M.,,,~-,?.~ ., .., ...:. ~ :1~, ,,. : . , .'., ::','~:~: ,.. -.... . ..~ '. ' ," '"~' .0 - ~ - t i ' ': ": '. ., · 'l~ '~ ..... ': · . ~,~ ~, , '~ _ _ · ' ' o ' ~:':..,'."'. '-' ' ' .'.,'... '.. "" ~~~'~...,..;.,..... , . · ': . .,A..".. '. '" '":· "'~''~ ': ' :" '... ' t7-.~:. ';:~ 7':'":'" :"".' '') .... ': ¢ ' ' ' ~.,. . ' ' ' ' · · · ' ??.-/ ~'"4:'...,,.~.,,,...,~::.,,:., ~.': OCr 1 1997 ~1¢~-~ 40 ~/ ):1 . ;:'~ .~ :4~'~:~ -o~'''''''''''' "' ;: ' ' Mr. & Mrs. Robert Walterbach .. 240 Sherwood Forest Ddve Delray Beach, FL 33444 October 2, 1997 Mr. Jeff Costelto Project Planner City Hall 100 N.W. First Avenue. Delray Beach, FL 33444 Re: Proposal for 108 Apartments at Sherwood Forest Dear Mr. Costello: As homeowners in Sherwood Forest, off Atlantic and Barwick, we have many concerns with regard to the proposal to put 108 apartments, a pool, a clubhouse and parking for some 200+ cars on a five acre driving range and a four acre plus open lot. Right now, the traffic on Atlantic is dangerous and it isn~ even the season. Accidents are occurring constantly at .Barwick, Where there is also a children's crossing. You take your life into your hands when .heading west, tnjing to turn into Sherwood Forest. There are constant accidents at Publix, et the Hamlet and traffic at the Ville de Estes Apartments. Children, even with the school crossing guard~, are at risk. Cars are coming .and going oblivious of everything bUt their golf game. People will have to use the pool/clubhouse on a blind comer where we now dodge golf course gawkers. Are there sufficleht turn arounds for safety vehicles, delivenj vans in such a high density building proposal, with pools, clubhouse and parking? Our second concern is water flow and retention fields. Heavy rains from the driving range, reed and parking at the club now all flow behind our homes to the canal. There. have been some heavy rains that edge pretty close to our home, pool equipment and heater. If there is no place for all the water on the parking lot proposal, because of the proposed concrete for parking spaces~ we will surely get the gas, oil and excess water from this deVelopment. We already'get floods at our entrance and gate. We love Delray, the quaint city and treed medians, but high density and over building at the school coreer,'plus a proposed new service station, with heavy traffic flow if very-disturbing. Concemod Residents Sincerely, Ro/be~&~D hy Walterbach DRWIsab OCT 6 ~997 PLANNING & ZONING ~ . . .-..'.'~. ".'~~: '2, '\':.-~ ~ / I O~T !~ I~97 PLANNING & ZONING Planning Director Diane Dominquez October 3, 1997 City Hall 100 N.W. First Ave. Delray Beach, FL. 33444 .:, Dear Ms. Dominquez, I am writing this letter to you to express my deep concern over a proposed development being considered for the front parcels of the Sherwood Forest Golf Course, to be known I believe as "Miramar" As I understand it, this development will consist of 108 rental apartments of undetermined status i.e.- seasonal? long term? low 'income? Based on a review of the site plan and my intimate knowledge of the immediate area, my concerns are as follows and I believe should be seriously considered and evaluated before a decision for approval is made: 1. The unit density seems extremely high...about 12 units per acre. Does this include roadways and should they be part of the calculation? Has the open area requirement been properly allocated and calculated? 2. There appears to be NO buffer described to screen this project from the adjacent residentialSherwood Forest Community, a community of single family homes. This community directly abuts the proposed development and should be given the benefit of some sort of wall or natural barrier to separate the two entities and for noise, aesthetic, and security reasons. 3. The big problem is with the design of the entrances, all of which share a common roadway(s) with the golf course proper and the Sherwood Forest Community. It would appear that at least one entrance/exit is on a blind curve, inviting a collision. I would also question the space allocated for a queue (of cars) buildup and spillover into the main roadway. And is there adequate room for emergency vehicles to navigate within this area? 4. In view of the areas present buildup, do we really need more apartments, considering that there's a new apartment complex under construction about a quarter mile east on Atlantic Ave.? And another one north of Kmart on Military Trail. And another one Just south of Linton on Military. A single family complex would be more in keeping with the present character of the area. 5. It would appear that with a middle school and a proposed gas station/quick mart directly across the street (on Atlantic and Barwick), the traffic congestion could increase significantly putting a lot of local and transient people at risk, especially the school children. Has a traffic study been made? Is one contemplated? In summary, I believe that the proposed development is seriously lacking in overall planning, particularly as it affects traffic flow into, out of, and around the neighboring communities;.~ and also in its consideration for the neighboring Sherwood Forest Community with respect to compatibility,, security, and quality of life issues. I would respectfully request that the board carefully scrutinize this proposal and 'do the right thing' before passing approval of this proposeddevelopment. One of the reasons we chose Delray to settle in was because of our perception that it was a well managed, well planned, and forward looking city and hopefully will continue to be so. S~,-~nce~e~y,/ / A1 Haeberle 4700 Sherwood Forest Drive Delray beach, FL. 33445 xc: Mayor~Jay A1perin Ken Ellingsworth, Commissioner City Hall Project Planner Jeff Costello 100 N.W. First Ave. Delray Beach, FL 33444 Subject: West Atlantic Ave. Development - Mirador @ Sherwood Park Project D~ar Mr. Costello We understand that there is a builder interested in buying the Sherwood Forest Golf Course which includes the front two parcels on Atlantic Avenue. My husband and I live in the Sherwood Forest Development which surrounds the Sherwood Park Golf Course. We are very concerned with the builder's plans. He wants to construct 108 apartments on the front two parcels. Our entrance to Atlantic Avenue is a very busy intersection. There are many accidents. Also the children that attend Carver Middle School are crossed during morning rush hour and in the atternoon. Adding 108 apartments whose tenants will be entering Atlantic Avenue along with Sherwood Forest residents and Sherwood Park golfers will make this entrance to Atlantic Avenue a very dangerous and busy intersection. We are very concerned about our property values. We feel that building 108 units in such a small area cannot enhance the property values of the homes in this area. Flood control is another concern of ours. We feel that the drainage for Sherwood Forest would be taxed immensely with the proposed 108 apartments. There were many dollars spent to beautify Atlantic Avenue. Unfortunately, with all the new apartments and housing developments going up on Atlantic, Military and Congress there will be so mu~h congestion that we won't be able to appre~a~ the new trees and shrubs. If we keep on expanding housing in Delray Fm afraid our tax money will be better spent to widen roads instead of beautifying our city. Delray still has too many areas that need to be cleaned up. Please take all letters into consideration before approving the Mirador Project. We are very concerned citizens. Sincerely Andrew Pisecki 320 Sherwood Forest Drive Nancy Pisecki Delray Beach, Florida 33445 ~tANN~ & ZONING 4900 Sherwood Forest Drive Delray Beach, FL 3344~(~]~- October 6, 1997 ~)L~ ~~) Ms. Diane Dominguez 0Cf _8 1997 Planning Director City of Delray Beach ,PLANNING & ZONING. City Hall 100 N.W. First Avenue Delray Beach, FL 33444 Re: Proposed Rental Complex Adjacent to Sherwood Forest Dear Director Dominguez: We are writing to express our opposition to the rental apartment complex proposed to straddle Sherwood Forest Drive and front on Atlantic Avenue. Approval of this rental complex at the entrance to a quiet community of private homes will forever alter the nature of,:that community and the adjacent community of private homes, The Hamlet, whose homes will literally be - overlooked by these multi-story rental units.. - . · As residents of Sherwood Forest, we are deeply concerned that the high density of the proposed rental units will make quiet, safe Sherwood Forest Drive into a hazardous "minefield" of traffic and blind curves each time we attempt to enter or exit our community. We are also concerned for the safety of the school. crossings at Atlantic Avenue and Sherwood Forest Drive and at Atlantic Avenue and Barwick Road in the face of the drastically-increased traffic that will result if the proposed rental units are approved. We believe these to be important considerations. While the builder of the proposed rental units has never even been in touch with. the Sherwood Forest Homeowners Association, the plans submitted to the City show some alarming details. For instance, the plans show gated entries to the east and west sides of the rental development off Sherwood Forest Drive. These entries are on the blind side of a curve leading to the Sherwood ,Park Golf Course and to Sherwood Forest. Have any traffic engineers examined what we forsee as a potentially deadly situation? The plans also show the rental complex's proposed west entry crossing land owned' bythe Sherwood.Forest Homeowners Association in order to reach the west end of Sherwood Forest,Drive... If the Homeowners Association does not agree to grant the builder 'an 'easement where will the emergency access for the proposed rentals be located? · , ' : .,, Further, residents renting on the west side of the complex will have to cross Sherwood Forest Drive to reach the pool, the clubhouse, the rental office and the dumpster, according to the plans. Much of this traffic will be pedestrian which will further complicate the dangerous traffic situation. While the plans clearly show landscape buffers between the proposed rental units and Atlantic Avenue, no such buffers are shown between the proposed rental units and Sherwood Forest. Why is there no requirement that the already in situ resident-owners of Sherwood Forest be accorded the same visual and audio protections from the potential renters as the potential renters would receive from Atlantic Avenue traffic? The plans do not show any open space which we believe is required by law. It has been suggested that the developer is using the Sherwood Park Golf Course as open space. This seems more than a little disingenuous, since the golf course provides recreational opportunities only for those who play golf. Finally, with new rental units on Military Trail (Citation Club), Atlantic Avenue (Villas D'Este) and Lake Ida Road (Water's Edge), would it not make more sense to require ownership units on the parcel in question? Do we want more tax-paying community-invested residents of our city? Or do we want more rootless and temporary guests? We are asking you, our elected representative, to oppose this development. It is poorly-planned, dangerous and unnecessary. Wallerstein Susan J~rstein October 7 1997 · .,,~. & ZON~ ?LANNh'~ Ms. Diane Dominquez Planning Director City Hall 100 N. W. First Avenue Delray Beach, FL 33444 RE: Proposed Rental Units at W. Atlantic 'Blvd. at Barwick Rd. Dear Ms. Dominquez~ I have recently returned'from a lengthy trip and learned of the above referenced rental community being planned. I, with my neighbors in the Sherwood Forest development as well as in the Hamlet community,are stunned that the Planning Committee would consider such density on two small parcels directly in the path of a golf course, our development and a large school. At present, the traffic at this corner is overwhelming, with accidents occurringalmost daily. In addition, it has been rumored that the current clubhouse at the' golf course.-will be turned into a rental office/clubhouse for the rental unit occupants, and that a pool area is planned °n~:that parcel also. That means foot travel across the road daily from the apartments to the pool/clubhouse, more traffic for the rental offtce.~' It will be a ctrcus!~ It is beyoRd~-b~iief that you would allow such a project to go _..fomward';'~urely an alternate solution can be proposed to this or any builder. Townhouses, less in number with a recreation area all on one side of the road would seem so much more lo§itel. The effect of this crowding will be devastating to the entire community,-'not only in terms of traffic (cars and foot traffic), but in terms of garbage disposal (where will they put bins for such a large.number of units7). I ask you to give some consideration to this once lovely area. Delray prides itself in making its City a better, more beautiful place. Please stop this wholesale ruination and keep the quality Delray can be proud of for years to come. Sin%~ely:;" -.i: ~'jay~' C. :Lind, ~'" 0cL07,1997 Mayer Pisealng Director Project Plauner Commlsslaiers As redlaila d Sired Ferett daig with air lin luntltl aid meaty fair nelgbbo~ we are quite lllSet by the prelmsed'Luxury Benlais" to lie situated Ilaig AlJaitlo Aveune. As ai asselcatlomm we katie beai Imakle to receive from tie developer, amy Idea of Just Wllot Is proposed as a fluislmd pmduat,*aai-aimmunlcatloL" We fall te see a~J plan that ulll be compalthle with tile existing de~ wbere we bave imrdiased our Ilolme. Surely there is some way, wbere tile present aid pragosed developing ef tile 'Green Space" that now mdsts can be made barmonlais. We believe tile ally way tlds cam be accomplislled Is by"All Parties" sitting down and arriving at a mutual understanding of the preldems cailraitlng beth sides. Can someone in the City AILmmlldslrallai tell air assdcaflai, what tax eldmgcemaiIs bave been offered? Is Federal Medes lo Its various ferelS being used? Wby are the raSll of "rentals" Ioundathlg the eslaldlsbell residential areas el the City. What beppaied to the Conceilt of prrdlllagraitois In the downtown area, where we underatond the City desires suck development to ocairP We bare net seen er beard of a traffic Impact stmly being undertakeR, tMs along with au ' envlranmaital study, SllaiId bare been given Mil prlorfl], with the sdieel lo midi close proximity te these "Luxury Rentals". The floor plans show Sllllare feolage tbet Is not In keeping with the immry caicePL What ore the rental eom to be to the taiaitsP Garbage collecting appears to be'bare-lmmelr' wflb the use'of dumpsters lo out-d-the- way areas. Will the occupants lake the time er make the effort ta walk air dlslamai'la dsm&se of their waste and treslL These and maiy more gnestlous ge mmnmswered as the City Jidmim~m gm ~ to the developers drum heal residents, who reside In the area of the development mst be addressed ~Li~<2~ <~ ~-,q~ The proposed "emergency read' does not appear to have bee. ghee much thaugbL Sherwand Forest rodale"ts have a right of wav over Uds read and Is md as a regular route of Ingress aud egress by reddeuts, Cau a read be made ~recb'Y ~em AUau~c Avenue Into the proposed rentolsP The fact that the two parcels Inn qnosffau were zoned for mare-femur rodale"Ual was never made ~.wa to pate"Ual home buyer~ prior to Uae ~me if pnr~asL We and other resldems pnnrckasod ear beale ad~ au enderstamggg mateda~ fal~sbnd paler to plre#s~ that the go# connree #d dl~dnng reign were cauddered aue pared If laulL 111e m e"rds ghfe" to players so Prodahund the a#vL We ask that yau aud e~er members Invekmd Il tkh prdeeL take nn ma~k mere detoflnd look at Gm e"Ure plctnl~ ~dnd~g the Impact au the Ihfes and well bdlg if afl aue kindred and twe"~ five toxpa~nng reddeuts ef Sberwand FeresL and the reticle"to if nne~kkedng 'rko Hamlet". SnnreFj this mnnst be donne Inn all good sonode"e", to ennsore that afl pal~es are faml~ aud Jnns~v g~en aH due e"nnslderndelL BespecUmby Submflte~ 235 Sbewiond Forest 235 Shelwend Forest tlf CC: Cemmlsdauere O] 648 LAKEWOODE CIRCLE EAST · DELRAY BEACH, FLORIDA 33445 Planning and Zoning Depadment This letter is to express our concern over the proposed building of apa~ments on the land at the intersection of She~ood Park and Atlantic Since we live at the Hamlet Countw Club, we will be directly affected by any additional building in the area. We have a new school which has be~me inadequate for the number of students it must se~e and thus required the addition of podable class rooms. The traffic situation on Atlantic Ave. is already crowded and ~n only get worse creating mOre a~idents. These new buildings will not be an asset to the city of Delray Beach, but a We urge you not to grant'a permit for'building in the above mentioned 4910 Sherwood Forest Drive Delray Beach, FL 33445 October 13, 1997 Hon. Kevin Egan Planning Commission City of Delray Beach City Hall 100 N. W. First Avenue Delray Beach, FL 33444 Re: Proposed Rental Complex Adjacent to Sherwood Forest Dear Commissioner Egan: We are writing to express our opposition to the proposed rental apartment complex planned to straddle Sherwood Forest Drive and front on Atlantic Avenue. As fairly recent home purchasers in Delray Beach (19 months), we find many facets of this proposal concerning: One of our major considerations in selecting Sherwood Forest as our home was the solitude and safety of the neighborhood, while maintaining a close proximity to other venues. This will be forever affected if the proposed rentals are allowed to be built. What was once a quiet neighborhood will become a high traffic area when leaving or entering our community, as well as that of our neighboring community, the Hamlet. Also of major concern is the safety of the school children attempting to cross at Sherwood Drive and Atlantic Avenue and Barwick Road and Atlantic Avenue. Has an impact study been done to determine what affect the increased traffic will have on these crossings? Also of concern in regard to the children attending Carver Middle School is the obvious overcrowding, as evidenced by the USe of mobile classrooms. What further effect will the building of high-density units have on this already present problem? The Zoning Application calls the units "Luxury Apartments". However, in looking over the floor plans of the proposed apartments, the square footage would suggest otherwise. Would it not make more sense.to require ownership units such as Townhomes on the parcel in question? This would be more compatible with the existing neighborhoods and provide the city with tax-paying community-invested residents versus a more transient population. There has been an obvious lack of effort on the part of the developer to contact our Association to discuss concerns or possible resolutions to any negative effects of the plan on the community. Because the Sherwood Forest Homeowners' Association has the right-of-way at the west end of Sherwood Forest Drive, where will the emergency access be located? While the plans show landscape buffers between the proposed rental units and Atlantic Avenue, no such consideration is indicated for the existing residents to protect their privacy. It is our opinion that the building of the proposed rental units is ill-planned and ill-advised. We have stated many but not all of our questions and cone, ems. The great majority of us have probably resided in a rental apartment at some point in our lives, and there is definitely a need for them. However, let us carefully consider where and how we are placing them so as not to compromise the quality of life of the existing citizens of Delray Beach. Sincerely, James M. Terry Sheila H. Terry ~Cc: Diane Dominquez, Planning Director GRAHAM ELLIS MARTIN 1.2/01/9.7 M0N 10:27 FAX 561 243 3774 CITY CLERK ~001 *** TX REPORT *** TRANSMISSION OK TX/RX NO 1222 CONNECTION TEL 92726831 CONNECTION ID ST. TIME 12/01 10:26 USAGE T 01'06 PCS. SENT 1 RESULT OK DFLRAY BEACH ~ CIT~ CLERK 100 N.W. lstAVENUE' DE/RAY BEACH, FLORIDA 33444. 407/243-7000 AII-A,lerica Ci~ 1993 December 1, 1997 VIA TELECOPIER & REGTILAR MAIL Michael S. Weiner, Esq. Weiner, Morici & Aronson, P.A. 102 North Swinton Avenue Delray Beach, FL 33444 Re: Appeal of Planninq and Zoninq Board Decision re Master Development Plan Modification for Mirador at Sherwood Forest Dear Mr. Weiner: This will acknowledge receipt of your letter of appeal and filing fee with respect to the Planning and Zoning Board's action of November 17, 1997, concerning the referenced project. Pursuant to Section 2.4.7 of the Land Development Regulations, the appeal was received in a timely manner by the City Clerk's office on November 25, 1997. Please be advised that the matter will be scheduled as a quasi-judicial proceeding before the City Commission at the regular meeting to be held on Tuesday, Decen~aer 9, 1997. The meeting will begin at 6:00 p.m. and will be held in the Commission Chambers at City Hall, 100 N.W. 1st Avenue, Delray Beach, Florida. You may wish to check with my office prior to the December 9th meeting to determine the item's standing on the agenda. Should DELI~A¥ BE^CH ~ll-/t. merica City December 1, 1997 VIA TELECOPIER & RE~ MAIL Michael S. Weiner, Esq. Weiner, Morici & Aronson, P.A. 102 North Swinton Avenue Delray Beach, FL 33444 Re: Appeal of Planning and Zoninq Board Decision re Master Development Plan Modification for Mirador at Sherwood Forest Dear Mr. Weiner: This will acknowledge receipt of your letter of appeal and filing fee with respect to the Planning and Zoning Board's action of November 17, 1997, concerning the referenced project. Pursuant to Section 2.4.7 of the Land Development Regulations, the appeal was received in a timely manner by the City Clerk's office on November 25, 1997. Please be advised that the matter will be scheduled as a quasi-judicial proceeding before the City Commission at the regular meeting to be held on Tuesday, December 9, 1997. The meeting will begin at 6:00 p.m. and will be held in the Commission Chambers at City Hall, 100 N.W. 1st Avenue, Delray Beach, Florida. You may wish to check with my office prior to the December 9th meeting to determine the item's standing on the agenda. Should you have any questions, please do not hesitate to contact me at 561/243-7050. Sincerely, City Clerk AMH/m cc: Diane Dominguez, Director of Planning and Zoning " """ i .............. "Ii Delray Beach, Florida 33444 CITY CLEEK ~ Telephone: (561) 265-2666 Telecopier: (561) 272-6831 OF COUNSEL: MICHAEL So WEINER ROBERT MARC SCHWARTZ, P.A. ALFRED G, MORICl Florida Bar Board Certified CAROLE J, ARONSON Real Estate Lawyer November 24, 1997 HAND DELIVERED City Clerk The City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 Re: Appeal of Decision by Planning & Zoning Board at the meeting of November 17, 1997 with Respect to the Master Development Plan Modification for Mirador at Sherwood Forest, a 108 Unit Rental Development, located at the Intersection of West Atlantic Avenue and Sherwood Forest Drive, Agenda Item IIIA. Our File No.: MIRC002 Gentlemen: Pursuant to the Land Development Regulations of the City of Delray Beach, Florida and in particular Section 2.4.7(e), on behalf of the applicant, who is an aggrieved party, and within ten (10) working days of the above-captioned meeting, I hereby deliver a letter of appeal. This is an appeal to the City Commission from the action of the Planning and Zoning Board. The action taken by the Planning and Zoning Board was to deny the Master Development Plan Modification. On behalf of the applicant, we believe this letter is sufficient for all purposes in assuring the applicant that the applicant will be heard before the City Commission on this appeal. In the event that any additional items are necessaw, would you please contact the undersigned and they will be supplied. As soon/~s a date and time is setf~r the appeal, would you likewise notify the undersigned. MSW/mph cc: Susan Ruby, Esq. (Hand Delivered) Mr. Frank DiMisa (via telecopier) WHINER, MORICI, & ARONSON, P.A. ATTORNEYS AT LAW ' - ' The Clark House RECEIVED 102 North Swinto. Avenue /!/~"/-/°4/O? Delray Beach, Florida 33444 Telephone: (561)265-2666 C~TY CLEEK Telecopier: (561) 272-6831 OF COUNSEL: MICHAEL S. WEINER ROBERT MARC SCHWARTZ, P.A. ALFRED G. MORICI Florida Bar Board Certified CAROLE J. ARONSON Real Estate Lawyer November 25, 1997 HAND DELIVERED City Clerk The City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 Re: Appeal of Decision by Planning & Zoning Board at the meeting of November 17, 1997 with Respect to the Master Development Plan Modification for Mirador at Sherwood Forest, a 108 Unit Rental Development, located at the Intersection of West Atlantic Avenue and Sherwood Forest Drive, Agenda Item IIIA. Our File No.: MIRC002 Gentlemen: Pursuant to your request, on behalf of my client, I am submitting the following additional information in connection with the above-captioned appeal: 1. The exact name of the applicant is Mirador Corporation, a Florida corporation. 2. Their interest in this matter is that [hey are a co~tact vendee, that is the prcpetty which is the subject of the Master Development Plan Modification is under a binding Purchase Contract to them from the owners of the land, namely Sherwood Park Golf, Inc., a Florida corporation. 3. The basis of the appeal is that the decision was contrary to law, contrary to the evidence submitted at the hearing, and an improper exercise of the authority of the Planning and Zoning Board for Delray Beach, Florida. Further, it was unreasonable to withhold approval, in violation of the landowner's guaranty of due process. The decision was contrary to the clear terms of the Land Development Regulations of the City of Delray Beach, Florida and the City was equitably estopped from denying this application. City Clerk's Office Our File No.: MIRC002 November 25, 1997 Page 2 4. The relief being sought is the granting of the Master Development Plan Modification. Enclosed is the~Two Hundred Dollar ($200.00) fee. We understand a tentative hearing date is Decemb~ 9,/Yn997. Please confirm this with us. Very t~)~yo~, ~ i / MSW/mph cc: Susan Ruby, Esq. 0185 FRANK DIMISA 5631 C COACH HOUSE CIRCLE BOCA RATON, FL 33433 25-80/440 /~~ _ _ ~ ~,~ ........ ~W~)W~LDS],~'C. ]A}B']C~D]E~F~G~ ~K~L~MINJP~R~S~TJ ~U~V~W~Y~Z~ LLOW~ AC/TO Z TO: City of Delray Beach FROM: Weiner, Morici & Aronson, P.A. RE: Mirador at Sherwood APPLICANT: Mirador Corporation .~ I. PURPOSE: The purpose of this memorandum is to explain the law applicable to the approval of the Master Development Plan submitted by the applicant for multi-family dwelling project located on the south side of West Atlantic Avenue near the intersection of Barwick Road 'and West Atlantic Avenue in connection with the Land Development Regulations ("LDR") and Comprehensive Plan of the City of Delray Beach, Florida. II. FACTS: Mr. Frank DiMisa on behalf of the Mirador Corporation, as purchase vendee (the "Applicant") has placed before the Planning and Zoning Board of the City of Delray Beach, Florida an application which includes a Master Development Plan, and information required by Section 2.4.5(F) of the LDR (collectively the "Master Development Plan") for Mirador at Sherwood Park, a proposed 108 unit multi-family rental development, located on the south side of West Atlantic Avenue at the intersection of West Atlantic Avenue and Barwick Road (the "Project"). The property is presently owned by Sherwood Park Golf, Inc. The zoning designation is PRD (Planned Residential Development). Adjacent zoning includes open space recreational, neighborhood commercial, general commercial, planned office commercial, community facilities and low density residential. Bordering the property is a bank building, commercial and retail uses, including a gas station, a school, single family homes and an operating golf course. The Project is within a PRD which was annexed into the City in 1988. As a part of that annexation and original zoning, the City required that the golf course be restricted to use as a golf course. This restriction remains in force and effect. III. LAW,: A Planned Residential Development must meet a three-part test. The first part are the requirements under Section 4.47 of the LDR. The second test is an overall test that relates to all development orders for the City of Delray Beach in accordance with Section 3.1.1 of the LDR. The third test relates to compatibility with the Comprehensive Plan. In this particular instance, the applicant, has met his burden of proof with respect to these tests and deserves approval of the Project. A. Section 4.4,7. This is a project for 108 multi-family units. There are 125 single family units built in this particular PRD. Therefore, at least fifty percent (50%) of the units are single family detached units. As the staff notes, the overall density is 3.10 units per acre and this is below the 6 units per acre required under the Code. Fifteen percent (15%) of the gross area is common open space. The site has more than five acres. Through the use of certain design features, the Applicant has also met each of the requirements under Section 4.47(H) of the LDR. B. Section 3.1.1. The general performance standards under Section 3.1.1 of the LDR, have four categories. 1. With respect to the Future Land Use Map, this project meets the requirements as it is a multi-family project within a land designation of medium residential density. 2. With respect to concurrency, the Staff Report states that l~sitive findings should be made in each and every category of concurrency without reservation. 3. With respect to consistency, while it would be impossible to be consistent with the six different zoning categories that surround this Project, based upon the testimony of experts, this Project mosts "fits" with each and every surrounding zoning designation. Its beneficial aspects outweigh any negative impacts. 4. As to consistency with the Comprehensive Plan and the Land Development Regulations, this will be dealt with in more detail below. C. Comprehensive Plan. The third test deals with the Comprehensive Plan. The Project must be consistent with the Comprehensive Plan that is presently enacted. A proposed Comprehensive Plan, no matter how well meaning, does not have the force of law. With respect to this present Comprehensive Plan for the City of Delray Beach, Florida, Objective C-3 of the Housing Element states that the development of new land shall result in the provision of housing which meets a wide range of economic abilities. Approval of this particular project will in fact meet that objective. It goes on to say that housing for moderate and middle income families shall be achieved through increases in density. In this particular instance, the Applicant is not even asking for a zoning increase. The applicant is only asking the density, allowed within this classification, be approved. Accordingly, consistency with the Comprehensive Plan is met. The Staff Report of the City refers to five additional Comprehensive Plan policies. The staff agrees that three of those five policies are met, namely Land Use Element Policy A-3.1, Open Space and Recreation Element Policy B-1.4 and Conservation Element Policy B-2.2. As to the two remaining items, Staff's only quarrel is with density and that this Project may be "a large scale adult oriented community". As to density, the density of this Project is less than eight of the eleven projects that they mentioned in their Staff Report. Two of those projects are at 3.00 units per acre and this project is 3.1 units per acre. Only one project is significantly lower. Given the scheme of the original annexation, there can be no quarrel with density. Large scale adult oriented communities are a reference to King's Point type developments where the policy is to market towards a retirement community. This is not the case. In no event can 108 units be called large scale and in no event will this community be oriented towards an "adults only" market. There has been significant compromise for tot lots and similar amenities. IV. CONCLUSION. As you know, the Master Plan Development is before you in a quasi- judicial proceeding and must be conducted so as to factually determine if the Master Development Plan conforms to specific requirements. Park of Commerce V, City of Delray Beach. 606 So.2d 633 (4th DCA 1992) at 635, affd. 636 So.2d 12 (Fla. 1994). In this instance the applicant has met each and every specific requirement. See also: Southern Cooperative Development Fund v. Driggers, 696 F.2d 1347 (1 lth Dist., 1983) reh. den. 703 F.2d 582, cert. den. 103 S. Ct. 3539. City. National Bank of Miami v. City of Coral Springs, 475 So.2d 984 (4th DCA 1985); City_ of Lauderdale Lakes v. Corn, 427 So.2d 239 (4th DCA 1983). This PRD meets the exact intent of the zoning in that flexible densities in which multi-family and single family detached dwellings are designed together. This was the original intent when the PRD was annexed into the City. The applicant has the right to rely upon these acts. Equity Resources. Inc. V. County of Leon, 643 So.2d 984 (lst DCA 1994); Resolution Trust Corporation v. Town of Highland Beach, 18 F.3d 1536 (1 lth Cir. 1994). There has been some comments from citizens. Certainly, citizens have a right to speak at quasi judicial hearings, but the opinions of neighbors by themselves are insufficient to support a denial of the proposed development. Ordinances must be interpreted in accordance with their plain meaning. Colonial Apartments. L.P.v. Ci_ty of DeLand, 577 So.2d 593 (Sth DCA, 1991). U~,., I 1 b ' ':'J'(' 1 b: ,-'b UFIbb. HHF< I ~,,UI';IbUL I ! Hb P. BASEHARTCONSULTING, INC. 133~ Old O~ Roa~, Su~ 101 West Palm Beach, FL 3~3409 TELEPHONE: 561-688-00d8 (off/ce) Nax~561-688-2009 EDUCATIONAL OUALiFICA University of l~li~, m! School of Architecutre Coral Gables, Florida (2 years) State University of New York at Buffalo School of Ar~ (l ye~) State University of New Yo~k ~ Buffalo B.A. Degree, P~logy State University of New York: at 13uffnlo B.A. Degree, Urban Planning PROgreSSIONAL EXPERIENCE: pnlm ]~a~h, Flork~. Ba,~qart Consulting, Inc. provides ~t wide ra~e of co~ servic~ to for a full range of developmem npprovals, public sector planning services and planning expert witness services. 1~6 lMm-eh) so i~ CJune~. PARTNER nnd DIRECTOR OF URBAN ~G. URI~A]q DES[~'N STUDIO Partner responsible for managing the Urban Planning Division of a West pnlm ]~ch Plannin~ and Design Firm. Services provided include site selection and analysis; development feasibility stnd~; planning and zoning consulution; ~ for government approvals including re, zonings, special cxc~tions, P.U.D.'s, variances, ~xm2nts, development of regional impact, and comprehensive plan amendme~. The F'trm employ~l people in 3 offices. l~0 ~November) U~ ~6 ~~__ ) EXEC~ DN~CTOR OF lrt. ANN~G. ~ONING AND BUn.r~ING NOR include formulation, maimnance and administntion of the Comprel2nsi~ Plan and other planning programs; 1978 {'June) to 19~} (Noveml~-l') ZONING DIRECTOR NOR PALM I/I/.ACI4 COUNTY. NLORID~ The Division contains 6 Sec~ons - Zon~%~ Administra~on, Permitting, Minmes and Records, Ske Plnnning, ComplY, and Research. Zoning Director is responm~e for the operation and ~ of all areas of Division of County Co~m!$$ioners, Codes Enforcement Board, S~te Plau Review Commit~ and Subdivision Review industry ~__u~_ the general public. Responsible for the administration ~d_ enforcement of the County Zoning and Housing Codes, as well as otl~r applicable codes and ordinance. ROBERT E. BASEHART -} Page Two 19'~/CA,ottsfl to I ~78 (June) ZO~G ~~~R FOR ~ ~ OF HO~~D. ~A R~~ ~ ~ ~ ~ ~ d ~ ~ ~ ~ ~~n p~s, 1~ ~ 1~ ~) S~OR P~~. FOR ~ TO~ OF ~~T.~ YO~ Div~ ~ ~ ~e ~ pl~. ~mible ~r ~ p~a~ of ~lex ~y~ ~ ~~ for ~ ~ ~, ~ ~ sub~s, ~ ~~n ~. R~e for pl~ ~ w~ o~ To~, C~, ~ ~ ~s. ~1~ ~ ~ ~ ~ a ~ ~ ~ ~r ~ To~, ~ ~ ~ ~ 1~6. ~vol~ ~ ~ To~'s ~p~ P~. 1~ ~ 1 ~ PLAN~R_~ DR~S~ FOR ~ 1~9 ~ 1~ ~N~~ ~SI~T~T TO ~E~CE P~E~ FOR FAC~ P~NG. STA~ UN~~ OF ~ YO~ AT 1~7 ~ l~ ~C~~L D~~N. STA~ FOUR CO~E ~~ ~ For~ W~d ~on ~ ~ P~ T~ ~o~ B~ T~ F~ C~ of W~ P~ ~ ~ C~ T~ F~ ~ ~ ~ ~i ~ ~~ F~ T~ F~ ~v~ ~ A~ ~ ~ ~ Co~y Tr~ Pe~ ~ T~ Fo~ ~ Ag~ ~ders ~~n, ~~ A~ C~ ~ ~h C~ H~ ~ ~~ Pol~ ~ ~m~ A~ M~~ T~k F~ - P~ ~h ~ ~ Div~n C~ CO~~E P~ ~ ~ ~ ~d of Adj~ ~ RESUME Michael S. Weiner ~DUCATION LAW: University of Michigan Law School, Ann Arbor, Michigan Degree: Juris Doctor Graduation: May, 1974 UNDERGRADUATE: Washington & Jefferson College, Washington, Pennsylvania Degree: B.A. Graduation: June, 1971 Weiner, Morici & Aronson, P.A. Delray Beach, Florida Senior Partner and Founder March 1, 1986 - Present Csank, Csank & Weiner Cleveland, Ohio and Palm Beach, Florida Partner September 1, 1983 - February 28, 1986 Guren, Merritt, Udell, Sogg & Cohen Cleveland, Ohio; Columbus, Ohio; and Miami, Florida Attorney/Partner (1980) May 11, 1974 - August 31, 1983 OTHER ACHIE~~S License: Member, Ohio State Bar, Since November 9, 1974 License: Member, Florida State Bar, Since December 5, 1978 Former Chairperson, Consumer Affairs Hearing Board of Palm Beach County, Florida Member, Council of 100, Delray Beach Florida; Chairperson, Strategic Planning Committee President, Pineapple Grove Support Group, Delray Beach, Florida Trustee for Old School Square, Inc., a non-prOfit corporation, Delray Beach, Florida Former Member, University Parkway Task Force Team, Palm Beach County, Florida Chairperson, Cultural Heritage Month, City of Delray Beach, Florida. Former Member, Centennial Committee, Delray Beach, Florida Member, Land Use Advisory Board, Policy Development Task Force 1976-1977, taught evening classes for paralegals at Dyke Community College, Cleveland, Ohio. Course: "Negotiable Instruments and Sales under the Uniform Commercial Code" 1978, Public Accountants Society of Ohio. Topics: "Sales and Leasebacks, Recent Developments" and "Corporate Stock Redemptions and Attribution Rules" 1979, Public Accountants Society of Ohio. Topi~: "Tax Planning Concerning Corporate Owned Life Insurance". ~980, Public Accountants Society of Ohio. Topi~: "Tax Aspects of Acquisitions and Dispositions of Business'es". ~980, Cleveland Tax Institute. Topi~: "Relief from Section 318 Attribution Including Waiver of Family Attribution by Estates and Trusts and Changes in IRS Position on Section 302 (b) (1) and Family Hostility". ~Capltal ASset? , 24 ~Auth.or, "Accumulated Earnings Tax an - ' Tes~m',ptlo°ons~'Further Thought . d Stock' · ~v p~~~i~z~f..o_n the Reasonable ...... -"-- 417 (1979).ua&ness Needs CO-Author, "Stock RedemPtions Can Be Reasonable Bus/ness Needs to Avoid Tax on Ac~oumulated Earnings,, 11-17-1997 ~:2~PM FRC)~ MARC WIENER. ~IA 1S6~7585298 P. 1 MEMO Marc Wiener, A.LA. Architecture/Planning ~ $.E. Cth St~et, Suite lffi l~oca R~ton, Florida 33432 (561) 750-4111 lax (561) 750-5298 Fax #: MFMO: F~r Domenlc F~llit~'~ ~u~ ~hi~ ie ~ ~um~ ~ my ~ualific~ion, Gr~ua~, ~ ~he U,~e~i~ F ~i,~,~. ~chclor ~ Ar~hi*c~ure. 19~1. Nagional Council ~ Arch~uFal ~i~ion ~oar~8 (NCA~) C~ifica~ion. Mem~ ~ *he ~eH~fl In~ ~i~ ~ Amhi~ (AIA). ~ns~m~ion Documen~ T~ h~l~i~g (CD~ ~ifi~ion. Copy 1. park of ~e v. City of D~] ray Beach 2. Southe_=rn ~tive Deve]olm~nt Fund v. Louis E. Drivers, et al. 3. City Na~4~] B~nk of Miami v. City of Coral SPring~, Fl~)rida 4. City of Lauderdale Lakes v. H__~_rman Cozn 5. Co!o~_/~], A~-U-~ents, L.P.v. City of ~, etc. 6. Equity Resources, InC-.'.]]~. gx~n~'-~-....o;f ~::~' 7. Resolution Trust CorBoration v, 'T~n .Of .Hi~kland'Beach PARK OF COMMERCE v. CITY OF DELRAY BEACH Fla. 633 4~te BS 606 ~ (K~ (FJLApp. 4 ~ 19~) rary injunction are reversed. Our holding 1. Zoning and Planning ~=374 · is without prejudice to ITC to amend either Function of city commission in review- its cause of action or motion.! lng property owner's proposed site plan for Reversed and remanded, development of owner's property in accord with the city zoning laws is not legislative in nature but. rather, administrative. 2. Zoning and Planning ~374 Site plan review could not be legisla- tire in nature because c~ty could not unrea- sonably withhold approval once legislative- iy adopted legal requirements have been met. PARK OF COMMERCE ASSOCIATES, 3. Zoning and Planning ~='374 and Land Resources Investment Co., Administrative procedure for site plan Appellants/Cross Appellees, approval is quasi-judicial in nature and con- ducted to factually determine if proposed v. site plan submitted by property owner con- CITY OF DELRAY BEACH, a Florida forms to specific requirement~ set out in municipal corporation, Doak S. Camp- the administrative regulations governing bell, III, Mayor, James Weatherspoon, the erection of improvements on the prop- Richard Dougherty, Malcolm Bird, and erty. Marie Horenbur~er, City Council Mem- 4. Zoning and Planning ~='372.3 bers, Appellees/Cross Appellants. Property owners are entitled to notice of conditions they must meet in order to Nos. 88-3192, 88-3193, 89- improve their property in accord with exist- 1387 and 89-2654. lng zoning and other development regula- District Court of Appeal of Florida, lions of the government, and those condi- Fourth District. tions should be set out in clearly stated regulations and compliance should be capa- Sept. 2, 1992. ble of objective determination in an admin- On Motion for Rehearing and Clarification istrative proceeding. Nov. 18, 1992. John Beranek of Aurell, Radey, Hinkle & Thomas, Tallahassee, and Boose, Casey, Appeal was taken from order of the C~lin, Lubit. z, Martens, McBane & O'Con- Circuit Court, Palm Beach County, Mary E. nell, West Palm Beach, for appellant, cross Lupo, J., which upheld denial of site plan. appellee Park of Commerce Associates. The District Court of Appeal affirmed. On L Martin Reeder, Jr., Steel, Hector, petition for rehearing en banc, the District Davis, Burns & Middleton, West Palm Court of Appeal, Anstead, J., held that Beach, for appellant, cross appellee Land function of city commission in reviewing Resources Inv. Co. Susan A. Ruby, Asst. City Atty., Delray property owner's proposed site plan for development of owner's property in accor- Beach, for appellees, cross appellants. d~nce with dty's zoning laws is not legisla- uve in nature but, rather, administrative. EN BANC OPINION ON REHEARING Reversed and remanded. ANSTEAD, Judge. Farmer, J., filed a specially concurring We grant the motion for rehearing en opinion, banc and now reverse and remand. We I. SeaE~cape Lt& v. Maximum Marketing Expo- sure, Inc., 568 So.2d 952 (Fla. 3d DCA 1990). 634 Fla. 606 SOUTHERN REPORTER, 2d SERIES treat this matter en banc in order to re- reason for denial was erroneous as a mat- solve the conflict between this court's hold- ter of law because there was a legal right ings in City of Bolrnton Beach v. V..S.H. of access from that road. Notwithstand- Realty, Inc., 443 So.2d 452 (Fla. 4th DCA lng, the court upheld the council's decision 1984), and City of Lauderdale Lakes v. on other grounds raised by the city for the Corr~ 427 So.2d 239 (Fla. 4th DCA 1983). first time at the de novo trial. Ill While it may be possible to reconcile [2] On appeal to this court it was con- the results reached in those two cases, it is tended that the trial court should have con- apparent that the language used in the c~ucted certiorari review limited to the mat- opinions is in conflict and requires resolu- ters presented during the administrative tion. In Corn~ we stated that the function proceedings, rather than de novo review. of a city commission in reviewing a proper- This court affirmed the trial court's deci- ty owner's proposed site plan for develop- sion, relying on Bosmton Beach. By af- ment of the owner's property in accord £n-ming on the authority of Bolmton with the city's zoning laws was not legisla- Beach, this court implicitly found that the tive in nature, but rather administrative, site plan approval process was legislative. -Subsequently, in Bolrnton Beach, we stat- On rehearing, it is contended that site plan ed that the site plan review function in- volved an exercise of "informed legislative review cannot be legislative in nature be- cause a city cannot unreasonably withhold discretion." We now resolve that conflict approval once the legislatively adopted lc- by adhering en banc to the views expressed gal requirements have been met. We in Corn and receding from any contrary agree) expressions set out in Bolrnton Beactc This court took the same position with Florida Power and Light (FPL), an elec- respect to plat review i~ City Nat'l Bank tric utility company, bought a parcel of land in the City of Delray Beach from Park of Miami v. City of Coral Springs, 475 of Commerce Associates, for the purpose So.2d 984 (Fla. 4th DCA 1985). In so doing of building a customer service center, a use we quoted with approval from Broward compatible with the existing zoning classifi- County v. Narco Realty, Inc., 359 So.2d cation. The purchase was conditioned upon 509, 510 (Fla. 4th DCA 1978), and held: city approval of the service center. FPL "All persons similarly situated should be submitted a site plan to the Planning and able to obtain plat approval upon mest- Zoning Board. The Board rejected it, pro- lng uniform standards. Otherwise, the visionally, subject to FPL's making a num- offic/al approval of a plat applicaliou bet of technical changes. FPL made all would depend upon the whim or caprice the requested changes and submitted the of the public body involved." plan to the city council. The council denied 475 So.2d at 985. Subsequently, in Corn, the plan for no apparent reason other than this court expressly recognized that the neighborhood opposition. Upon review in same reasoning applied to site plan pro- the circuit court, a de novo trial was con- ceedings: ~' ducted. The court concluded that the coun- We specifically held in Narco Realty, cil had denied the plan solely on the basis Inc. that where all a6 the legal require- of unacceptable access from a particular ments for platting Knd have been met road. However, the court ruled that this there is no residual discretion to refuse !. Appellants cite a recent fifth district decision, trict c~isagreed and ~[l~ashed the density co Colonial Apartments, LP. ~. City o! DeLantt 577 tion on the basis that the city could not arbi- So.ld 59~ (Fla. nth DCA), rev. denied, 584 So.Id trarily impose a condition different than that 997 (Fla. 1991). In that case, the city had ap- contained in the ordinance. The court further pro.ed · site p~. condi,o-ed .po. compii~.c. ~ted: 'mhe o~nion, oe .~izhbo. b~ ~ with a density different from that provided in selves are insufficient to support a denial o/· the ordinance. In creating the condition, the proposed development.~ Id. at 596. city had reasoned that the lower density was are entitled to fair play; the lands which needed to satisfy the 'aesthetic compatibility" represent their life fortunes should not De star purpose stated in the ordinance. The fifth dis- jected to ad hoc legislation. Id. at 598. .~ PARK OF COMMERCE v. CITY OF DELRAY BEACH l~la- 635 CitemL606 So.7.d 6~ (I~ILApp. 4 Dict. as a mat- plat approval and mandamus will lie. Corn, 427 So.2d 239 (Fla. 4th DCA 1983), legal right The same reasoning applies to approv- one might infer that the zeal of the advo- withstand- al of site plans .... No element of dis- cato has shaped the attitude of the judge· 's decision cretion remains once the legal require- I do not think so, however. I strongly · ity for the ments have been met. believe that the power of the government 427 So.2d at 242 (emphasis added), to regulato land use within its borders is among the very reasons for the existence t was con- [3, 4] The administrative procedure for of local government in the first place. But 1 have con- site plan approval is quasi-judicial in na- I also believe that land ownership is at the ~o the mat- ture, and conducted to factually detormine core of our constitutional freedoms and ~inistrative if a proposed sito plan submitted by the thus the power of government must be vo review, property owner conforms to the specific exercised with a healthy regard for that )urt's deci- requirements set out in the administrative right. h. By al- regulations governing the erection of im- I agree with Judge Anstoad's opinion for Boynton provements on the property. Property ~d that the owners are entitled to notice of the condi- the court. I writo only to add another legislative, tions they must meet in order to improve thought to his rationale. In my opinion, it site plan their property in accord with the existing the kind of consideration given by a trial nature be- zoning and other development regulations court and then by us in one of these cases ty withhold of the government. Those conditions is primarily infectod by a functional analy- sis of what the local government did, as adopted lc- should be set out in clearly statod regula- well as what it said. That is to say that met. We tions. Compliance with those regulations the circuit court's mode of consideration should be capable of objective determina- should not depend on mere labels used by ~sition with tion in an administrative proceeding, the parties but instoad by an analysis of Vat'l Bank While the burden may be on the property what they did. ~rings, 475 owner to demonstrato compliance, no legis- In so doing lative discretion is involved in resolving the For example, in Corn the landowner ~ Broward issue of compliance, sought site plan approval from the city, but what he got was legislative action to avoid 359 So.2d The standard of review in the trial court giving him the approval that the city's own · and held: depends directly on the nature of the pro- laws required. Hence, his action against J should be ceeding before the city council, and wheth- the city might have sounded in certiorari to upon meet- er it is quasi-legislative or quasi-judicial, review the city's administrative action in erwise, the Under the case law, a de novo review is considering site plan approval; actually it application proper for the former, while certiorari re- asked for relief by mandamus but also ~ or caprice view is proper for the latter. Based on the sought a judicial declaration that the city's analysis set out above, it was error for the attempted legislative avoidance of adminis- y, in Corn, trial court to conduct a de novo review, trative action was unconstitutional, or oth- d that the Accordingly, we grant rehearing and erwise invalid, and an injunction against its -~ plan pro- now reverse the decision of the trial court enforcement. and remand for further proceedings consis- It would be unrealistic to say that Corn 'co Realt~ tent herewith, should have been limited to certiorari re- view in the circuit court, when the only ~ai require- .. DOWNEY, LETI~, HERSEY, way to challenge the legislative enactments n'~ beento refuzemet ~;.,. GUNTHER, STONE, WARNER and was by ordinary, original proceedings. :/~ POLEN, JJ., concur. And on appeal of the circuit court decision, .cnsity condi- ~' FARMER, J., concurs specially with it would have been unfair to the city to uld not mbt- ~ ? :nt ~han tim '.~ opinion, limit review of that decision in this court to com~ fu.nhcr '~ GLICKSTEIN, CJ., DELL and the kind of review we give to orders of the ors by ~ ~ circuit court sitting in its appellato capacity a denial d · ? GARRET1~, JJ., recused. to review local governmental decisions. ~6.s which~may ' ~'~' FARMER, Judge, specially concurring. See e.g., Education Development Center ~ nor b~ sub As 1 was the lawyer for the plaintiff and v. Zoning Board, 541 So.2d 106 (Fla.1989). a~ ~98. .~ appellee in Cit~ of Lauderdale Lakes v. A functional analysis requires rather that 636 Fla. 6O6 SOUTHERN REPORTER, 2d SERIES : '~ we engage in something of both kinds of adendant's 1 review in these circumstances, only one in George W. WALSH, Appellant, should have ! others, felony, wher~ In the case of a zoning variance, the local v. af dangero~ government conducts a kind of hearing STATE of Florida, Appellee. § 2111Rd); that includes fact finding, from which it makes a decision applying already estab- No. 91-1867. .* ~, Criminal *** Federal ~ lished legal principles. When the public entity zones property it combines the appli- District Court of Appeal of Florida, showing that cation of established legal principles with Fifth District" on or device ~ legislative action. When it conducts site sition of enh: plan or plat review, it merely applies estab- Sept. 4, 1992. on assault or lished rules of law to existing and uncon- U~.C.A. §§: tested facts. Each of these governmental 4. Criminal functions is different. Each carries its own Defendant was convicted of narcotics Trial ceu principles affecting judicial approviil or dis- offenses and sentenced as habitual offend- r~ts federal. approval, er by the Circuit Court, Seminole County, in sentencin{ When the circuit court considers the par- C. Vernon Mize, Jr., J., and defendant al> viction, wh~ ties positions and, later, this court reviews pealed. The District Court of Appeal, 579 arose out of ' what that court has done, we cannot Se.2d 908, reversed habitual offender sen- which defen, achieve justice by merely applying a label tence and remanded. On remand, the Cir- tenced. 18 ' and then mashing a judicial lever. We cur Court, Seminole County, prepa~.~d must study what the parties were asked or guidelines scoresbeet and sentenced defen- 5. Criminal set out to do, what they actually did, and dant to 27 years' imprisonment and defen- Separate how they went about doing it. That is dant appealed. Superseding and withdraw* tions of fede~ what Judge Anstead has done in his cogent lng opinion on rehearing, the District Court er, whether analysis. I therefore thoroughly agree of Appeal held that: (1) defendant's 1967 currently. with his conclusions, robbery offense should have been scored as second-degree felony, rather than iru'st-d~ 6. Criminal OPINION ON MOTION FOR Defends REHEARING AND gree felony; (2) defendant's prior federal CLARIFICATION convictions for endangerment to life that viction for arose out of two federal bank robberies across state PER CURIAM. should not have been included on defen- offense; th The motion for rehearing is denied. The dant's scoresheet; and (3) trial court cor- been scored motion for clarification is granted to the rectly scored 1957 Massachusetts convic- tencing deft limited extent of acknowledging that this tion for receiving stolen property as third- F.S.1969, §~ court's original panel opinion affirmed the degree felony. § 2312. decisions of the trial court in all four al> peals: Case Nos. 88-3192, 88-3193, 89.1387, Sentence vacated and cause remanded. 7. Criminal and 89-2654. The panel opinion has been Trial c overruled by the en banc opinion only in dant's 1957 receiving s Case No. 883192. No further motions for 1. Criminal Law ~I245(1) felony in rehearing will be considered. Ambiguity regarding previous judg- ics convicti DOWNEY, ANSTEAD, LETTS, ment for sentencing purposes must be con- felony und, HERSEY, GUNTHER, STONE, WARNER, strned against the state and in favor of the POLEN and FARMER, JJ., concur, defendant. George GLICKSTEIN, C~I., DELL and 2. Criminal Law ~1245(3) GARRETT, JJ., recused. Robert Defendant's 1966 federal robbery con- hassee, an viction should have been scored as first- Gen., Dayl degree felony, where judgment reflected that crime involved dangerous weapon, and I. See SOUTHERN CO-OP. DEVELOPMENT FUND v. DRIGGERS 1347 Cite ~ ~ F.2~ 1.$47 (i~.~) CONCLUSION reviewed on standard of whether commis~ The district court's grant of summary sion's action was arbitrary and capricious. judgment is reversed, and the case is re- 2. Zoning and Planning ~=~381.5 manded for further procecding~. Preamble to county subdivision regula- REVERSED and REMANDED tions in which county commission reserved discretion tot provide for general health, safety and welfare but which contained no ~s~.~u?~_~_?~ standards with respect to subdivision ap- ~. ~-~'~ ~ proval could not serve as an independent f~'.~(~. 4~- C~.~,.. ',~c-'~ b ~./.~._., source of authority for the commission to / .L disapprove landowners' subdivision plat. /~¢"'£~ '~ ~' %~ yrL~ ' ' .~/ o. Zoning and Planning ~=,382.2 SOUTHER. N COOPERATIVE Access requirement in county subdivi- DEVELOPMENT FUND, et sion regulation did not authorize county al, Plaintiffs-Appellees, commission to impose ad hoc requirements v. regarding condition of county road adjacont Louis E. DRIGGERS, et al, to proposed subdivision. Defendants-Appellants. 4. Constitutional Law ~=~278.2(2) No. 82-5305. Zoning and Planning ~375 United States Court of Appeals, Since landowners complied with county Eleventh Circuit. subdivision regulations, county commission had administrative duty to approve land- Feb. 4, 1983. owner's proposed plat and their refusal to Rehearing and Rehearing En Banc do so was a violation of landowners' guar- Denied March23, 1983. antee of due process. U.S.C.A. Const. Amend. 14; West's F.S.A. Const. Art. 1, Landowners brought action against § 9. county commission and its commissioners alleging that their subdivision plat applica- 5. Zoning and Planning *=~376 tion was unlawfully denied. The United Later enacted zoning ordinances could States District Court for the Middle District not be applied by county commission to of Florida, Ben Krentzman, Chief Judge, reject landowners' subdivision plat applica- granted summary judgment for landown- tion which had complied with regulations in effect at time it was filed. ers, 527 F.Supp. 927, and commission ap- pealed. The Court of Appeals, Dyer, Senior 6. Zoning and Planning ~=~386 Circuit Judge, held that in light of landown- Florida statutes did not authorize coun- ers' compliance with requirements of coun- ty commission to reject landowners' subdi- ty subdivision regulation, commission had vision plat application because of alleged administrative duty to approve the pro- inadequate road access to the proposed sub- posed plat and their refusal to do so was a division and because adequate school faciii- violation of landowners' guarantee of due ties allegedly were not available or planned process, to be constructed. West's F.S.A. §§ 235.- Affirmed. 193, 336.05(2). L Zoning and Planning Landowners' action against county F. Craig Richardson, Jr., Ross, Hardies, commission in which they urged that coun- O'Keefe, Babcock & Parsons, Nancy ty's subdivision regulations be applied as Stroud, Boca Raton, Fla., Fred Bosselman. written did not involve a challenge to local Edward F. Ryan, Keith A. Klopfenstein..Ir.. land-use laws and, therefore, would not be Chica~o. 111.. for Manatee. 1348 696 FEDERAL REPORTER, 2d SERIES James W. Jones, Chris R. Ottenweller, private sector loans, and internally generat- Steven J. Hoffman, Arnold & Porter, Wash- ed revenues. Plaintiff Rutledge is a resi- ington, D.C., Morris W. Milton, Williams & dent of Manatee County who applied for Milton, St. Petersburg, Fla., for plaintiffs- and was eligible to participate in the FFC appellees. Program. Appeal from the United States District In 1979 SCDF purchased a 1631 acre tract Court for the Middle District of Florida. of land near the Myakka-Wauchula Road, approximately six miles from the unincor- Before RONEY and JOHNSON, Circuit porated town of Myakka and twenty five Judges, and DYER, Senior Circuit Judge. miles from the city of Bradenton, Florida. The property is in the unincorporated area DYER, Senior Circuit Judge: of East Manatee County and is zoned for This is an appeal from a summary judg- agricultural use. The SFDC representa- ment, 527 F.Supp. 927, entered in favor of tires contacted officials of the Manatee the plaintiffs on two counts which alleged County Planning Department, the county that the' defendants, Manatee Board of agency principally responsible for land plan-. County Commissioners, Manatee County, ning and development, to discuss the estab~ and individual County Commissioners, lishment of the agricultural cooperative and~ abridged plaintiffs' rights to due process in to determine what county requirements violation of 42 U.S.C. § 1983 and the Four- would apply to the project. The Planning teenth Amendment to the United States Department advised SFDC that it would be Constitution {Count 1), and plaintiffs' rights necessary to prepare a subdivision plat and to due process under the Florida Constitu- obtain approval of the Manatee County's tion (count 4), in refusing to approve a Board of County Commissioners in accord- preliminary subdivision plat. The court ance with Manatee County's Subdivision granted an injunction and directed the de- Regulations. fendants to issue the plat to the plaintiffs. Under the Subdivision Regulations a de- The defendants assign error in the court's veloper must submit pre-application plans findings that the applicable regulations had for review with the Planning Department, been complied with and that they therefore the Health Department, the Highway and violated an administrative duty to approve Engineering Department, and the Utility the plat; that there were no genuine issues System, prior to making an application for of material fact that precluded the entry of subdivision approval. Plaintiffs prepared summary judgment; and that the denial of and submitted a detailed pre-application the plaintiffs' application was arbitrary and plan describing the proposed agricultural capricious. We affirm, community. They subsequently received Plaintiffs Southern Cooperative Develop- permission from the Planning Department ment Fund, Inc. (SCDF), Small Farm De- to submit an application for preliminary velopment Corporation (SFDC), and Mana- plat approval. A plat application, titled the tee County Community Development 'Cor- Long Creek Subdivision, was submitted on poration are associated with a joint private- February 1, 1980, and showed a subdivision public program called the Family Farm Co- of 49 ten-acre tractz, 4 one-acre tracts, and operative Program (FFC Program) whose two tract~ larger than 460 acres. As a purpose is to foster the creation and devel- result of discussions with the county staff opment of agricultural cooperative commu- and agencies, plaintiffs agreed to modify nities as a means of addressing rural pover- the design of some streets within the subdi- ty by making it possible for low-income and vision and to improve a portion of the disadvantaged persons interested in agricul- Myakka-Wauchula County Road abutting ture to own and operate small family farms, plaintiff's property. They also agreed to The program is funded by a combination of change dead-end streets to cul-de-sacs and government grants and Iow-interest loans, established setbacks for a power line ease- SOUTHERN CO-OP. DEVELOPMENT FUND v. DRIGGERS 1349 CIt~ ~ ~9~ F.2d 1~47 merit, A revised plat reflecting the voted unanimously to disapprove the plat. changes was submitted on February 29, Although Section 23 of the Manatee County. 1980. As required by the Subdivision Regu- Planning Act expressly requires the Com- iations, the Highway and Engineering De- mission to publicly state its reasons for dis~ partment, the Health Department, and the approval of the plat, neither the Commis- Utility System reviewed the application for sion nor any of the Commissioners gave any "conformity with all County regulations" reason for disapproving the plat. and expressed no objections. The Planning Plaintiffs fi~ed suit on May 30, 1980 and Department, as required, recommended to undertook discovery. Depositions of the the Manatee County Planning Commission Commissioners established that the COm- (a public board appointed to advise the mission accepted the fact that the plat corn- Commission on subdivision and zoning mat- plied with the County's Subdivision Regula- ters) that preliminary plat approval be tions. Plaintiffs filed a motion for partial granted, noting that the Long Creek Subdi- summary judgment. The defendants did vision "meets all requirements of prelimi- not controvert the fact of SFDC's compli- nary plat review" 'and that the other county ance with the Subdivision Regulations. departments h~d "no objections to the pre- liminary plat." The Planning Commission On July 2, 1981 the district court entered recommended to the County Commission an order finding that only factors contained that the plat be approved. Notwithstand- in the Subdivision Regulations could consti- tute grounds for denial of the plat applica- lng its compliance with all relevant county ordinances, SFDC's project was a subject of tion, and since the Commission had failed to dissent among residents of Manatee Coun- state reasons for its May 1, 1980 denial, the ry. At the first meeting of the Commission district cour~ directed that "the County on the Long Creek Subdivision application Commission should be and is afforded the on March 29, 1980, many members of the opportunity to again consider Plaintiffs' all-white community complained that the plat application within the guidelines set participants in the FFC program would be forth above (the Subdivision Regulations Iow-income blacks and Spanish-Americans 'enacted pursuant to the Manatee County and that the program was a federal "give Planning Act, Chapter 63-1559 ... which is away". During the hearing Commissioner attached ... as Exhibit B')." These were Driggers wanted to consider factors other the Subdivision Regulations in effect at the than compliance with the Subdivision Regu- time that the plat application and the suit lations because although the plat complied were flied. with the regulations he felt that this was On August 11, 1981 the Commission again not a "normal" subdivision. Rather than considered the plaintiffs' plat application. approve the plat, the Commission directed At the meetAng the commissioners remained the Planning Department to undertake an silent on the merits of the application. The additional study of the Long Creek Subdivi- conclusions of the Planning Department in sion. This was accomplished and the Plan- their new review of the application were ning Department once again concluded that similar to those found in the first staff the SFDC's plat application complied with report in regard to the public facilities the Subdivision Regulations.~ This report problem. After comments by the planning was submitted to each Commissioner before staff, plaintiffs' counsel, and an attorney the May 1 hearing and noted that the representing local residents, the Commis- "Long Creek Subdivision appears to meet sion proceeded immediately to vote unani- all requirements of the Manatee County mously against the subdivision. The Corn- Zoning Ordinances and Subdivision Regula- mission then instructed their legal staff to tions..." On May 1, 1980 the Commission prepare a written order of their decision. !. An impact analysis which dealt with matters ices. and road conditions was also subrmt£ed to not included in the Subdivision Regulations the Commission. such as school administration, medical serv- · 1350 696 FEDERAL RETORTER, 2d SERIES Shortly thereafter, the attorney represent- Development Code.4 The Commissioners lng the County in this litigation returned to further determined that the proposed plat the meeting with the order denying prelimi- would be in violation of Section 336.05(2) of nary plat approval.2 The order made find- the Florida Statutes which, they argue, au- ings of fact that the road access to the thorizes a county commission to reject a proposed subdivision would be unsafe and plat if road access is not adequate or safe, inadequate; that public school facilities and in violation of Section 235.193, Florida made necessary by the proposed develop- Statutes, which, they argue, authorizes de- ment were not available and were not nial of a subdivision application ff public planned to be constructed; that necessary school ~acilities are not available or will not public or private facilities and sewers were be made available concurrent with develop- inadequate; that there was no proximity to ment. Finally, the Commissioners decided recreation and shopping facilities and that the subdivision was not consistent with schools and the extra traffic could not be the Manatee County Local Government handled safely; and that the proposed sub- Comprehensive Plan. division would constitute urban sprawl.~ On December 3, 1981, following the Com- Based on these finding~ the Commission- mission's second denial of SFDC's plat, the ers determined that the application did not district court granted plaintiffs' motion meet either the requirements of the Subdi- summary judgment on Counts 1 and 4. eh- vision Regulations in effect at the time of tered declaratory judgment for plaintiffs the initial consideration of the application and ordered Manatee County to approve the on May 1, 1980, or the requirements of the plat. The defendants* cross-motion for 2. Since none of the Commissioners expressed 3. Because of the extremely remo~e location reasons at the hearing, a~d since under the of the proposed subdivision and the facts set Florida "Sunshine Law." Fla. Stat.Ann. § 286.- forth in the staff report, the Board finds that 011 commissioners may only discuss official the following necessary public or private facili- business in public meetings, it is clear that the ties and services are inadequate: Order was not prepared by the Commission. (a) emergency medical ser~nces; but was apparently prepared by counsel in an- Co) fire protection; ticipation of this litigation. (c) law enforcement; (d) traffic circulation; 3. The Order contained the following findings of (e) education. fact: 4. The Board finds that the proposed subdi- vision is not located in close proxLrmty to 1. The only road that provides access to the neighborhood recreation and shopping facilities proposed subdivision is Vgyakka-Vgauchula ~md schools; is not designed to have conve- Road, otherwise known as Nine-foot Road. nient and easy access to highways, arterial For a distance approximately two miles to the streets, and major collector streets with direct south of the property and five miles to the connections to major recreation, shopping and north of the property this road is less than one working areas; and is not located where neces- standard lane in width, consisting only of sary transportation facilities are adequate to patches of asphalt some eight to twelve feet handle the expected additional traffic safely. wide. For the reasons stated in the staff re- 5. The Board finds that the proposed subdi- port, the Board finds that the road access to the vision would constitute urban sprawt, would be proposed subdivision would be unsafe and in- located in the eastern portions of the East adequate. County sector where public services can least 2. The proposed subdivision would add be- easily be provided, and wotdd create a. "leap tween sixty (60) and seventy (70) students in frog" pattern of development. grades 2-8 to a school having an enrollment of two hundred fifty-two (252) and a capacity of 4. The current subdivision regulations are part two hundred seventy-five (275). Funds are not of the Manatee County Comprehensive Zoning currently available to expand the school. For and Land Development Code adol~ed April. the reasons stated in the staff report, the Board 1981 pursuant to state law which requires the finds that public school facilities made neces- county to adopt a comprehensive plan prior to sar~' by the proposed development are not July 1, 1979. All regulations thereafter are available in the area which is proposed for required to be consistent with the comprehen- development and axe not planned to be con- stye plan. The Florida Local Government Com- structed ir. the area concurrently with the de- prehensive Planmng Act of 1975, §§ 163.3161 velopment, et seq.. Florida Statutes (1981). SOUTHERN CO-OP. DEVELOPMENT FUND v. DRIGGERS 1351 Cite ss 696 F.2d 1347 (1983) summary judg~nent on those counts was applied as written. What we are called denied. The district court granted a stay upon to decide is whether the Commission's pending appeal of its injunction, actions were authorized as a matter of Flor- The issues are sharply drawn. The de- ida law, and if so whether their actions fendants contend that the board's denial of were in violation of the Due Process clause the plat application was justified under the of the Fourteenth Amendment. Subdivision Regulations in effect at the [2] The district court held that "Maria- time the application was filed; was justi- tee County rhust base its approval or disap- fled under the provisions of the Develop- proval of plat applications upon the regula- ment Code, enacted after the plaintiffs' plat tions and requirements contained in the application had been filed and after this Subdivision Regulations, and not upen any litigation had been instituted; and was jus- broad powers of discretion. As such, the tiffed under the provisions of Florida Stat- County Commission does indeed act in an utes, ~ection 336.05(2)$, relating to the in- administrative, and not a discretionary, ca- adequacy of road access, and Section 235.- pacity." Defendants take issue with this 193 s, relating t~ inadequacy of schools, holding. They argue that even assuming The plaintiffs contend that since Manatee that only the Subdivision Regulations in County enacted detailed and comprehensive effect at the time of the initial application Subdivision Regulations with which plain- apply, under Florida law the regulations of tiffs complied, the Commission had no dis- subdivisions require the use of reasonable cretion to disapprove the plat for reasons discretion by the Commission in the applica- not contained in the Subdivision Regula- tion of standards and requirements to the tions, nor could their disapproval be based specific circumstances of the subdivision ap- upon the later enacted Development Code. plieation. They point to the preamble to [1] To put the case in proper perspec- the Subdivision Regulations 7 as authority rive, we must, at the outset, reject the for the position that prefatory language defendants' argument that this ease in- reserving discretion ~o provide for the gen- volves a challenge to local land use laws, eral health, safety and welfare was suffi- and therefore the standard enunciated in cient to sustain their action. We disagree. Euclid v. Ambler Realty Co., 272 U.S. 365, The preamble contains no standards with 47 S.Ct. 114, 71 L. Ed. 303 (1926) should respect to subdivision approval. It merely apply, i.e., whether the action of the Com- sets forth the underlying purpose for enact- mission was arbitrary and capricious. The lng the Subdivision Regulations. The lan- plaintiffs do not challenge the exercise of guage in the preamble cannot serve as an legislative function by Manatee County, or independent source of authority for disap- the validity or legality of the zoning ordi- proving plats. This would permit the Corn- nantes. On the contrary, the plaintiffs mission to hold in reserve unpublished re- urge that the Subdivision Regulations be quirements capable of general application 5. Section 336.05(2), Florida Statutes, provides area which is proposed for development or that: are not planned to be constructed in such "The Commissioners are authorized to refuse area concurrently with the development." to approve for recording any map or plat of a sut~livision when recording of such plat 7. The Subdivision Regulations prefatory state- would result in duplication of names and merit of the public purposes of the regulations. streets or roads or when said plat, in the states in part. "... to provide for the harmoni- opinion of said Coccmaissioners, will not pro~ ous development of the county [and] to vide adequate and safe access or drainage." insure that each new residential subdivision · results in an attractive living enx~ronment. 6. Section 235.193. Florida Statutes, provides which will maintain its value over the years." that: Further. that its purpose is "to secure adequate "(4) The local governing body is empowered pro~'ision for light, air. open space, recreation. to reject development plans when public transportation, potable water, flood prevention. school facilities made necessa~, by the prO- drainage, sewers and other sanitar3' facdities." posed development are not available in the 1352 6~ FEDERAL REPORTER, 2d SERIES for occasional use as the Commission deems Defendants maintain however that Narco desirable, must be read narrowly because the only principle that it established was that where [3] Defendants also rely on an access a local governmental body stipulates that requirement in the Subdivision Regulation all legal requirements of the plat approval which provides: "No subdivision shall be process are met, there is no discretion in the approved unless its street system is connect- Commission. But it did not establish the ed to an arterial highway by a public road principle that a Commission's action in re- which is county or state maintained." It is viewing a plat application is ministerial in- undisputed that the proposed plat satisfied stead of discretionary in nature. We are this requirement since the subdivision con- unimpressed with this argument. Here the nected to a county road, which in turn Commissioners admitted that the plat corn- connected with an arterial highway. But plied with the Subdivision Regulations and the defendants contend that this is not the case is therefore in the same factual enough. They base their discretion, they posture as Narco. To argue that there is a say, to deny this plat application because difference between compliance with subdi- the Myakl~a-Wauchula county road was in vision requirements established by stipula- such po~r condition that it did not fulfill the tion in Narco vis-a-vis by an uncontroverted ~ minimum standards of design and mainte- showing sub judice, is a bit of hyperbole in: nance. We think it is clear, however, that which we will not indulge. the defendants cannot impose ad hoc re- Defendants further submit that Narco quirements regarding the condition of couno has been misinterpreted because Garvin v. ty roads adjacent to proposed subdivisions Baker, 59 So.2d 360 (Fla. 1952), State ex re]. in order to implement the purpose of the Zuckerman-Vernon Corp. v. City o£ Mira- Subdivision Regulations. mar, 306 So~2d 173 (Fla. App. 1973), and Bro- ward County v. Coral Ridge Properties, 408 [4] We agree with the district court So~2d 625 (Fla~App. 1981) established the that Broward County t,. Narco Realty, 359 principle that the Commission had discre- So.2d 509 (Fla~App.1978) enunciated the tion in reviewing the Long Creek Subdivi- principle of Florida law that is controlling sion plat application. An analysis of these here. In that case even though Narco had cases f_a_il_s to su__p..pg_~_~he de~nd~"-~ser- complied with all of the legal requirements . tion that.the plat ap?ovaI P~-'ia-diSCre- for platting its land, the Commission con- tioaary in na!~u_r_e. In Garvin, the Cornmis- tended that it still had the discretion to sioners denied approval of the plat because approve or to refuse approval of any plat. the streets were not sixty feet in width and The court rejected this argument saying: the lots were too shallow. The city's ordi- All persons similarly situated should be nance required the streets to cordorm as able to obtain plat approval upon meeting nearly as practicable to existing streets and uniform standards. Otherwise the offi- in no event should they be less than fifty ciai approval of a plat application would feet s. Plaintiffs' proposed plat indicated depend upon the whim or caprice of the street widths of 50 feet, where existing public body involved, streets in the area were 60 feet wide. ... the property owner has done all the There was no ordinance concerning the law required of him to entitle his plat to depths of lots. The trial court held that it be recorded. At that point any discretion was preper to reject the plat on the basis of in the County Commission vanished, the ordinance governing street w~dths, but 8. The controlling Lake Worth ordinance read: Section 4: As a minimum requirement for Section 2: Said land shall be so subdivided streets, avenues and sidewalks, the plat shall and platted or mapped so that the proposed dedicate a width of at least fifty feet. being at streets or public ways shah conform as near- least six feet on each side thereof for side- ly as practicable to existing streets and pub- walks and at least thirty-eight feet intecven- lic ways. in proximity to such tract of land. lng between sidewalks. SOUTHERN CO-OP. DEVELOPMENT FUND v. DRIGGERS 1353 Cke u~9~ F.Zd 1547 (19~3) that it was improper to reject it on the basis ters have a duty to perform in order to of lot depths since this was not covered by protect the public from hazardous and dan- the ordinance. It is pertinent to note that gerous traffic conditions." Id. at 362. the court said: Defendants' reliance on Zuckerman gives S~.hould_q.gJ~._Ol~l:ity_flesiee_to_~fectuaie-some- us little pause. A writ of mandamus filed sound p_u_bl_ic~policy_ _wi_~hill..j_Ls_a~utkority, by a developer to compel issuance of a plat t_hi.s_.~hgU_[d _~b~.._~_9_n.~_by~ul~_el~acted_.ordi~ approval wa~.. denied because at the time nances setting_u_!~ standards to ~a the city had not reviewed the plat or taken ~ ~-~..in.~:arryiag on h'sl~affair~. Q~ttcr: action since the developer's compliance with whe, a citizen.could act only subject to the applicable subdivision regulations were tbe--u-ok--n-°-~n-and---unc~:~h~i~v~'~-'~f~a unresolved through no fault of the city. public official or several public officials, Moreover. in Narco the same court took ~.. ~xperienced from. ti.m.~.~ ~irae, pains to distinguish Zuckerman noting that Id. at 362. The Florida Supreme Court in that ease there were unresolved ques- affirmed noting that the lower court passed tions whether the plan met the zoning re- "upon the authority of the City by ordi- quirements. To make certain that Zueker- nanee to require streets to be conformable man did not impinge on the principles set as nearly as practicable to existing streets, forth in Narco the court added, "There are The court held that the City had not abused some rather broad statements in Zueker- ils discretion in requiring the streels shown man which might lead one to conclude that upon the plat to have a width of sixty feet mandamus never lies to require approval of in conformity with other streets with which a plat. While Zuekerman is clearly correct it connected. There was no error in this on its facts, to the extent that it might be finding,.." The defendants argue that interpreted to hold that mandamus will this holding means that the board had dis- never lie to require approval of a plat, we cretion in reviewing the plat application recede therefrom." 359 Se.2d at 511. The because it required a sixty-foot street width exercise of discretion and judgment about when the ordinance's language only re- which the court spoke is to determine quired a fifty-foot width, ergo, if the board whether a Plan meets the Zoning require- had no discretion in the plat approval proc- ess the court would have issued the writ, ments. It is not a discretion to approve or since the board denied the plat because the disapprove a plan that does m~t the re° streets did not have sixty-foot widths. This quirements. argument misses the mark for two reasons. Defendants' reliance on Corm Ridge Plainly the language in the ordinance in Properties is also misplaced. Narco was question was in the disjunctive--it required cited with approval, but mandamus was a minimum of fifty-foot width or that the found not to be an appropriate remedy be- proposed streets conform as nearly as prat- cause the county contended that even ticable to existing streets. Moreover, the though there was compliance with the re- "discretion" that the court was talking quirements for filing a plat, nevertheless about was with respect to that exercised in lack of access, in violation of Section 336.- enacting an ordinance for a valid purpose, 05(2), Florida Statutes, was an additional not a discretion in the application of the requirement that had not been met. The ordinance. "It requires no citation of au- property owner disagreed that the statuby thority to establish the fact that a wide ry requirements were applicable. The court street changing into a narrow street, or a found that whether the county had misap- narrow street changing into a wide street, plied or misapprehended the legal require- constitutes a hazardous traffic condi- ments for plat approval, i.e., whether in tion .... the changing of the width of addition to the plat requirements the stat- streets and roads involves the public wel- ute could be invoked, was a question prop- fare and safety to a high degree, and public erly dealt with by review because a merely authorities having jurisdiction of such mat- erroneous decision would not support an 1354 696 FEDERAL REPORTER, 2d SERIES application for mandamus. Plainly, Narco comprehensive plans not later than July 1, is neither overruled nor limited by Coral 1981. Subdivision Regulations enacted or Ridge Properties. amended must be consistent with the adopt- [5] Defendants next asser~ that the De- ed comprehensive plan. There is no ques- velopment Code, adopted April 30, 1981, tion that plaintiffs' plat application does after the rejection of plaintiffs' plat appli- not meet the requirements of the new De- cation on May 1, 1980 and after this litiga- velopment Code. It follows, defendants ar- tion commenced, applies to the plaintiffs' gue, that the land use ordinance can be plat application because it was the law ex- ameilded during the pendency of a contro- isting at the time of the Commissioners' versy, and that the controversy must then second decision of August 11, 1981. In its be determined on the basis of the amended order of July 2, 1981 the district court made law. See State Etc~ v. Oyster Bsy Estates, preliminary findings that the plaintiffs had Inc., 384 So.2d 891 (Fla.App. 1980); LeleMs apparently complied with all of the Subdivi- v. Liles, 240 So.2d 478 (FlsA970); City o£ sion Rq. gulations and held that "Manatee Miami Beach v. 8701 Collins Ave., 77 So.2d County must base its approval or disapprov- 428 (Fla. 1954). As we see it, however, these al of plat applications upon the regulations cases simply declined to apply the law of and requirements contained in the Subdivi- equitable estoppel when there was an ajb- sion Regulations.." The court also found sence of a factual basis for its application, a that the county had not specifically stated principle that is not open to question. But the reasons for disapproval of the plat ap- this line of authorities is inapposite here for plication as required by the Manatee Coun- several reasons. ty Planning Act, and stated, "Because the First, we have a finding by the district County Commission did not articulate its court (with which we agree) that the prior reasons for disapproving plaintiffs' applica- denial or delaying action of the defendants tion, and because it does indeed appear was unlawful. It would therefore indeed from the record that the disapproval may be inequitable to permit the defendants to have been based upon criteria not contained take advantage of a new law enacted while in the Subdivision Regulations, the County an application for plat approval, valid when Commission should be and is afforded the fi]ed, has been unlawfully delayed. See opportunity to again consider plaintiffs' Smith v. City of Clearwater, 383 So.2d 681 plat application within the guidelines set (Fla. App.1980), petition dismissed, 403 So2,d forth above." (Emphasis added.) 407 (Fla. 1981); Davidson v. City of Coral In its final order the court found that Gables, 119 So.2d 704 (Fla. App. 1960), cert. "the plaintiffs' rights would be violated if dismissed, 126 So.2d 739 (Fla. 1961). new regulations are used to deny a plat Second, the district court's order of July application which complied with the regula- 2, 1981, made "preliminary findings ... tions in effect at the time the plat applica- that plaintiffs have complied with all of the tion was filed." The court then proceeded Subdivision Regulations ... and that the to again review the county's rejection of defendants must base their approval or dis- the plat under the Subdivision Regulations approval ... upon the regulations and re- and refused to consider the applicability of quirements contained in the Subdivision the Development Code. Regulations." Since, however, the defend- The defendants point out that the Devel- ants had given no reason for their rejection opment Code was adopted not to defeat this of the application, as required by the Subdi- litigation but was made necessary by the vision Regulations, the court gave the de- requirements of the Florida Local Govern- fendants the opportunity, within 45 days, to ment Comprehension Planning Act of 19'/5, again consider plaintiffs' application "with- Chapter 163.3161 et seq., Florida Statutes in the guidelines set forth above." The (1981), known as LGCPA, which mandates clear language of the district court's order that all local governments in Florida adopt leaves no doubt that it did not intend to SOUTHERN CO-OP. DEVELOPMENT FUND v. DRIGGERS 1355 give the defendants carte blanche authority discretion, and therefore their reliance upon for a de novo review of plaintiffs' applica- discretion, rather than on uniform start- lion. It simply gave the defendants the dards was improper. Moreover, the district opportunity to do what they were required court found unpersuasive the defendants' to do in the first place, i.e., give the reason, argument that because the proposed subdi- if any, why the plaintiffs' application did vision was not connected with a completed not conform to the Subdivision Regulations. highway sufficient for the anticipated traf- The district court's final order confirms fic it faile~d to comply with both the stat- this. utes and the Subdivision Regulations. The Finally, under the provisions of the ordi- court found "access" in both contexts not to nanee which enacted the Manatee Plan, the require a completed road in advance of de- new requirements of the Plan and its imple- velopment. meriting regulations were not applicable to [6] The Subdivision Regulations contain land use applications filed with the county prior to April 30, 1981, the effective date of specific and detailed requirements pertain- the Plan.) P~rsuant to LGCPA, the Devel- lng to access to a subdivision. They do not opment Code implemented the Manatee impose any requirements regarding the con- Plan and is required to be consistent with dition of roads maintained by the county? In fact, they do not incorporate or in any it. Since the plaintiffs filed this plat appli- cation in February, 1980 they were grand- way refer to any statutory provision. It is fathered out of the new regulations in the undisputed that the plaintiffs' proposed plat Development Code. met the requirements of the Subdivision Regulations concerning access. Thus the For the foregoing reasons the district narrow question is whether the statutes court was correct in rejecting the defend- give the defendants discretion to deny a ants' application of later enacted ordinances plat application because the connecting to deny plaintiffs' plat application, county road is, in their opinion, in a deterio- We now turn to the defendants' claim of rated and unsafe condition, even though the error in the refusal of the district court to plat complies with the access requirements find that certain Florida statutory provi- of the Subdivision Regulations. We agree sions authorized them to reject plaintiffs' with the district court that this is an enab- plat application because of inadequate road ling statute which would authorize a local access to the proposed subdivision, and be- government to establish specific land use cause adequate school facilities were not standards, but it does not constitute an available or planned to be constructed, independent source of discretion. Were we Defendants argue that Section 336.05(2) to hold otherwise the statute would confer Florida Statutes ~) gave them discretion, in- upon the defendants authority to grant plat dependently of the Subdivision Regulations, approval to one and yet withhold it from to deny the plat application because of the another without guides of accountability, a inferior condition of the Myakka-Wauchula result that would not meet the test of con- County Road, the only access to the subdivi- stitutionality. See, e.g., HarringWn & Go., sion site. The district court held this to be Inc. v. Tampa Port Authority, 358 So.2d 168 an enabling statute rather than a source of (Fla. 1978); Dickinson v. State, 227 So.2d 36 9. Section 4(c) of Ordinance No. 80-4 which Section 4(b) of the Ordinance defines "pre- enacted the Manatee Plan provides in pertinent scriptive provisions" to include "land develop- part: meat regulations." , Actions on applications for development per- 10. See Foomote 5. mits which have been duly filed with the County of Manatee. its departments, or agen- I 1. Paragraph F of the Subdivision Regulations ties, prior to the effective date of this ordi- provides: "Access: No subdivision shah be an- naace.~ll not be subject to the prescriptive proved unless its street system is connected to provisions of the Plan... an arterial highway by a public road which is .\, County or State maintained." 1356 6~6 FEDERAL REPORTER, 2d SERIES (Fla. 1969); North B,~y Vill,~ge v. Black~vell, 88 So,?.d 524 (Fla.1956); Drexel v. City of Gerald S. WIGGINS and Larue G. Miami Beach, 64 So.2d 317 (Fla. 1953); City Wiggins, Plaintiffs-Appellees, of Nap]es v. Central Plaza of Naples, Inc., Cross-Appellants, 303 So.2d 423 (Fla. App. 1974). We are not unaware of the defendants' v. reliance on Chase Manhattan Mortgage & WARRIOR RIVER COAL COMPANY, a Realty Trust v. Wacba, 402 So.2d 61 (Fla. corporation, Defendant-Appellant, App. 1981), in which, without discussion, in :. Cross-Appellee. an alternative holding, the court affirmed the denial of a site plan, without prejudice, No. 82--7021. "on the basis of inadequate access" under United States Court of Appeals, Section 3~6.05(2) Florida Statutes. There is Eleventh Circuit. no discussion of the relationship of this stat- ute to any specific standards the county Feb. 4, 19~. may have had regarding access, or the ap- plicability of such statutes when specific subdivision regulations exist. There is also Appeal was taken from a summar]~ no discussion whether the rejected site com- plied with the specific access requirements, judgment of the United States District Court for the Northern District of Als- Under these circumstances we are unper- suaded that the statute gives the defend- barns, Frank H. McFadden, J., in favor of ants independent discretion to interpret lessors in suit for remaining minimum ad- what is "adequate and safe" and impose ad vance royalties allegedly due under coal- hoc requirements regarding the condition of mining lease. The Court of Appeals, Fay, the county road adjacent to the proposed Circuit Judge, held that language of lease subdivision, was clear and certain regarding lessce's ob- Similarly, the defendants, relying on Sec- ligation to pay lessors minimum total royal- lion 235.193 Florida Statutes? refused ty of $200,000. plaintiffs' plat application finding that the Affirmed. public school facilities were not adequate to serve the proposed development. Godbold, Chief Judge, dissented and filed opinion. Without belaboring the point we reject this argument for the same reasons that we explicated concerning the "access" statute. There was no genuine dispute of material I. Mines and Minerals ~=~70(2) fact regarding plaintiffs' compliance with Terms of coal-mining lease were clear the requirements of the Subdivision Regula- and certain regarding lessee's obligation to lions. Under these circumstances the de- pay lessors a minimum total royalty of fendants had an administrative duty to ap- $260,000, notwithstanding clause providing prove the plaintiffs' proposed plat and their that "lessee upon termination and surren- refusal to do so was a violation of the der will only be responsible for payments plaintiffs' guarantee of due process. See that have accrued at the date of such sur- Washing,~on ex tel. Seattle Trust Title Go. render," because a prior clause stated that v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 lessee would not be excused "from paying L.Ed. 210 (1928), Hornsby v. Allen, 326 F.2d minimum advance royalties and production 605 (5 Cir. 1964). The entry of summary royalties to Lessor," demonstrating inten- judgment for the plaintiffs was proper, lion on part of coal company that lessors AFFIRMED. were to receive minimum total royalties 12. See Footnote 6. 984 Fla. 475 SOUTHERN REPORTER, 2d SERIES Before SCHWARTZ, CJ., and HENDRY by city for approval of plat for location of and DANIEL S. PEARSON, JJ. convenience store. The Circuit Court, Bro- PER CURIAM. ward County, Linda L. Vitale, J.. approved in part and disapproved in part city's reso- This is an appeal from an order summari- lution which approved proposed I~Iat sub- Iy denying appellant's second motion for ject to three conditions. Bank petitioned post-conviction relief pursuant to Florida for writ of certiorari. The District Court Rule of Criminal Procedure 3.850, which of Appeal Hersey, C.J., held that: (1)city order was rendered final upon the denial of ' validly impbsed conditions requiring ten- a rehearing motion. Appel/ant's motion foot buffer strip of landscaped area along '~ contends, inter alia, that his appointed J;' counsel was ineffective 1) in incorrectly one boundary of plat and requiring eh- ' trances and exits to permit right turn only. f advising him of the maximum sentence and (2) conditioning issuance of building ~ ~ which could be imposed and 2) in failing to move to dismiss the charges based on the permit upon improvement of adjacent road- Il ;i state's alleged violations of appellant's way to four lanes was appropriately strick- ff' right to a speedy trial and right against en by trial court. ' ~' double jeopardy. Additionally, he contends Certiorari denied. ff'i the sentence imposed was in excess of that t ~i allowed by law. , We have carefully considered the Rule 1. Administrative Law and Procedure ~" 3.850 motion, the state's response to this 's::~763 C' court's order to show cause and the record Scope of review to be utilized by Dis- ':_ , f' on appeal and have determined the record trict Court of Appeal considering order of ~, before us does not show conclusively that circuit court entered on review of admires- ,,,,{ appellant is entitled to no relief. Accord- trative action is limited to determination of ,g~ ingly, we reverse and remand for further - whether circuit court afforded procedural ¢. proceedings under Rule 3.850. Fla. R. due process and applied correct law.U.S. ~ P" App. P. 9.140(g). ~'. ~ Reversed and remanded. C.A. Coast. Amend. 14. ~/~., ~ 2. Zoning and Planning ~'375 ~'-~ '~ ~ o Once a party complies with all legal · ': --- requirements for platting, there is no dis- :'' A:.....:. ;. ~ cretion in government authority to refuse .. ~ / approval of the plat. ~ CITY NATIONAL BANK OF MIAMI, 3. Zoning and Planning ~:~382.1 ~ as Trustee, Petitioner. City validly imposed as condition of v. approval of proposed plat for convenience CITY OF CORAL SPRINGS. store a ten-foot buffer strip of landscaped Florida, Respondent. area along one boundary of the plat. as No. 85--678. reasonable application of section of city's code of ordinances. District Court of Appeal of Florida, Fourth District. '4. Zoning and Planning ¢=382.1 Sept. 18, 1985. City's condition for approval of pro- Rehearing Denied Oct. 14, 1985. posed plat for convenience store, that all entrances and exits indicated on the plat would be labeled "Right Turn Out Only," Bank, as trustee, sought certiorari and was validly based upon legal requirement mandamus regarding conditions imposed that applicant demonstrate that there will CITY NAT. BANK v. CITY OF CORAL SPRINGS Fla. 985 Cite u 475 ~.2cE ~4 (F[~&.~pp. 4 Dist. 1985} be safe and adequate access to area sought yard in Coral Springs, Florida, the city eom- to be platted, mission imposed the following conditions: I. A ten (10) foot buffer strip (land- S. Zoning and Planning ~:~382.2, 436 scape area) will be included on the plat City's condition for approval of pro- along its northwesterly boundary; posed plat for convenience store, that no 2. All entrances and exits indicated on building permit for construction would be the plat wil.t be labelled "Right Turn issued until adjacent road had been im- Out Only"; proved to four-lane roadway, was in nature of building moratorium directed to specific 3. No building permit for construction parcel of land without meeting any of the will be issued until Royal Palm Boule- formal requirements for such moratorium, yard has been improved (widenedl to a and as such, was appropriately stricken by four (4) lane roadway in the area ira- trial court, and provision of trial court's mediately adjacent to this plat. order permitting further hearings as to City National Bankbf Miami sought cer- whether the condition could preclude land- tiorari and mandamus in the circuit court owner from any reasonable use of its prop- which upheld the first and second condi- erty indefinitely was proper determination, tions and further directed the city to "de- lete condition No. 3 or provide further hear- 6. Administrative Law and Procedure lng on said issue." The bank then filed ~'683 petition here for further review. Whether or not holding of circuit court is supported by substantial competent evi- [1] The scope of review ~o be utilized by denee is not appropriate inquiry by District a district court of appeal considering an Court of Appeal on certiorari review of order of the circuit court entered on review administrative action already reviewed by of administrative action is limited to a de- way of certiorari in the lower tribunal; termination of whether the circuit court District Court of Appeal reviews evidence afforded procedural due process and ap- presented to circuit court, and only when plied the correct law. City of Deerfield order or judgment has been entered with- Beach v. Vaillant, 419 So.2d 624 (Fla. out any competent evidence may District 1982); Cherokee Urushed Stone. Inc. v. Court of Appeal find departure from essen- City of Miramar, 421 So.2d 684 (Fla. 4th tial requirements of law on basis of evi- DCA 1982). No issues are raised based dence or lack of it. upon failure of the circuit court to afford procedural due process; thus, the sole in- quiry is whether the correct law was ap. Gerald L. Knight of Gustafson, SOy plied. phens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for petitioner. [21 l_t is e~le_.m__e_n_ta__..ry that once a _~arl5' John M. Wynn of Paul J. McDonough, complies with all legal requirements for P.A., Coral Springs, for respondent, platting there is no 'aiscfetion m govern- ment 'au-~orit---~y to r~fuse approval of the plat. In Broward County v. Narco Real- HERSEY, Chief Judge. t?], Inc., 359 So.2d 509 (Fla. 4th DCA 1978), By petition for writ of certiorari we are the proposition was explained in the follow- asked to review an order of the circuit lng language: court approving in part and disapproving in All persons similarly situated should part a resolution adopted by respondent be able to obtain plat approval upon city which approved a proposed plat subject meeting uniform standards. Otherwise, to three conditions, the official approval of a plat application On approval of a plat for a Stop-N-Go would depend upon the whim or caprice market to be located on Royal Palm Boule- of the public bodv involved Yokley. in 986 Fla. 475 SOUTHERN REPORTER, 2d SERIES his work, Law of Subdivisions, ~ 52, states: any reasonable use of owner's property ,, indefinitely. CITY OF CORAL Thus, while public policy requires mu- SPRINGS accordingly directed to delete nicipal control of such development, condition No. 3 or provide further hear- nevertheless, the authority of a town lng on said issue. to deny a landowner the right to devel- op his property by refusing to approve [5] Condition three was in the nature of the plat of such development is, by a building moratorium directed to a specific parcel of land and without meeting any of statute, made to rest upon specific standards ora statute or implement- the formal requirements for such a morato- lng ordinances. Thereafter, the ap- rium. As such it was appropriately strick- proval or disapproval of the plat on the en. The provision of the order permitting further hearings on this issue was a proper basis of controlling standards becomes determination Page v. Lines, 150 Fla. 433, an administrative act." , Likewise, in Section 53 of the same work 7 So.2d 599 (1942), the court thereby grant- the author.states: 'lng partial relief by way of mandamus. "When the statutes and ordinances [6] Whether or not the holding of the have been complied with in making a circuit court was supported bv substantial plat of a subdivision, the active approv- competent evidence is not an appropria~ al by a village board has been held to inquiry by this court on certiorari review of be ministerial, and such act may be administrative action already reviewed by enforced by a writ of mandamus." way of certiorari in the lower tribunal. We Id. at 510 (emphasis added), review the evidence presented to the circuit The petitioner's position is that all legal court and only when an order or judgment requirements were met inasmuch as the has been entered without any competent city commission's additional requirements evidence may we find a departure from the were not properly promulgated standards essential requirements of the law on the and therefore were not legal. Respondent basis of the evidence or lack of it. Finding city points out the existence of certain stan- no such deficiency here we decline to grant dards made applicable by virtue of its home certiorari. rule powers, in addition to the landscape CERTIORARI DENIED. standard contained in a city ordinance plicable to condition one. See section 166.- DELL and BARKETT, jj.. concur. 021, Florida Statutes (1983). [3, 4] We hold that condition one is val- idly imposed as a reasonable application of section 20-513 of the Code of Ordinances of the City of Coral Springs. Condition two is similarly valid based upon the legal re- ALBERTSON'S, INC., Appellant, qu/rement that an applicant demonstrate that there will be safe and adequate access v. to the area sought to be platted. Broward Ruth A. BRADY. Appellee. County v. Coral Ridge Properties, Inc., No. 84-2372. 408 So.2d 625 (Fla. 4th DCA 1981). The circuit court held the third condition D/strict Court of Appeal of Florida, invalid on the basis that Second District. The Court simply finds that to include Sept· 18, 1985. such a condition on the plat without any Rehearing Denied Oct. 16, 1985. indication in the record as to when or if said portion of the roadway will be four- Action was brought for injuries sus- laned could preclude the landowner from tained when plaintiff was struck by stock CITY OF LAUDERDALE LAKES v. CORN Fla. 239 Cite as, 427 So.2d 23~ (Fla. App. 4 Dist. 1983) resented by lnterform. The form liners form's motion to assess attorney's fees are improperly stuck to the concrete when the AFFIRMED. forms were removed, lnterform was made aware of these difficulties. The shoring SHIVERS and WENTWORTH, JJ., con- system supplied by Interform was inade- cur. quate, requiring additional shoring rental and fabrication costs for special form lifters to complete the job. Recapitulation sheets ~t~-~,~u~sE~_s~t_~ reflected additional labor costs due to spe- cial crews repairing the forms. ~ .... ~ -' Section 672.719, Florida Statutes (1981) ..~:~ i )~& \ x allows contractual ~o'reements to provide ]~ )'LL. t,|~, ~'~".~[. xL'- ~-'-L~'~I. for limitations of remedies, but "[r]esort to ' ~"~' a remedy as provided is optional unless the CITY OF LAUDERDALE LAKES, a FIori- remedy is expressly agreed to be exclusive, da municipal corporation, Howard Craft. in which ease it is the sole remedy." Sec- Mayor of the City of Lauderdale Lakes: tion 672.?19(1){b), Florida Statutes (1981). Alfonso Gereffi, Jerome J. Cohan, Mot- The purchase order agTeement between In- tis Klein, Lyman L. Allen, Louis Green- terform and Orr addressed one remedy in wald, Harry. Kaufman, City Councilmen: the event defective goods were supplied, and Ben Eigner, Building Official, Ap- but there was no language providing that pellants, the remedy of replacement of defective goods would be exclusive. Absent any ex- v. press language limiting Orr's remedy to Herman CORN, Trustee, Appellee. requesting replacement of defective goods, Orr was free to seek alternative remedies at No. 78-2438. its option. District Court of Appeal of Florida, [3] Section 627.756, Florida Statutes Fourth District. (1981), provides for an award of attorney's fees in suits by materialmen against surety Feb. 16, 1983. insurers under payment or performance bonds written by the insurers to indemnify the material men against pecuniary loss by Owner sought a final judgment invali- breach of a building or construction eon- dating certain zoning ordinances as they tract. Upon rendition of a judgment or referred to specific real property and re- decree in favor of the materialmen, attor- quiring city to approve a site plan and. ney's fees will be assessed against the insur- ultimately, to issue a building permit. The er, in favor of the materialmen. Sections Circuit Court, Broward County, Frank A. 627.756 and 627.428(1), Florida Statutes Orlando, J., granted owner relief requested, (1981). Since there was no decree or judg- and city appealed. The District Court of ment rendered by the trial court in Inter- Appeal, Hersey, J., held that: {1) relief by form's favor, the trial court did not err in way of mandamus was legally sustainable; denying lnterfom's motion to assess attor- (2) city was equitably estopped to deny heys fees. See Insurance Company of owner's rights in original zoning classifica- North America v. Electric Power & Service, tion; and (3) directing the city to approve Inc., 384 So.2d 915 (Fla. 3rd DCA 1980); site plan and issue a permit upon the cor- Bankers Multiple Line Insurance Company rection of certain deficiencies in the plan v. Blanton, 352 So.2d 81 (Fla. 4th DCA did not in effect take away from the city 1977). the discretionary duties of a legislative Accordingly, the trial court's final judg- body. merit in Orr's favor and its denial of Inter- Affirmed. 240 Fla. 427 SOUTHERN REPORTER. 2d SERIES 1. Mandamus ~=~87 ' tion of certain technical deficiencies in plan, Remedy of mandamus was available to on ground that change in zoning on which invalidate certain zoning ordinances as they disapproval was based was invalid for fail- referred to specific real property in ques- ute of city to fulfill its own notice and tion and to require city to approve a site procedural requirements and that city was plan and, ultimately, to issue a building equitably estopped to enforce change, did permit to owner where disapproval of that not interfere with legitimate exercise of plan was not based upon technical deficien- discretionary duties by legislative body, ab- cies, but instead followed from a change in sent c~rcumstances which would preclude zoning, and since there was no impediment estoppel as where public health or safety is to requiring formality of approval upon cot- placed in jeopardy. rection of those deficiencies once change was invalidated, no element of discretion 7. Zoning and Planning ~=~374 remained once legal requirements were Approval of plat or site plan is adminis- met. trative rather than legislative function. 2. Zoning and Planning ~=~151 An owner of property acquires no vest- James C. Bvady, Fort Lauderdale, and ed rights in continuation of existing zoning or land use regulations as to such property Mallory H. Horton of Horton, Perse & Gij~s- unless matters creating an estoppel against berg, Miami. for appellants. zoning authority have risen_ Gar3, M. Farmer of Abrams, Anton, Rob- bins, Resnick, Schneider & Mager, P.A., 3. Zoning and Planning a=~lS1 A municipality may be equitably es- Hollywo~l, for appellee. topped to enforce a change in zoning regu- lations against one who has substantially HERSEY, Judge. altered his position in reliance upon original The city appeals from a final judgment regulation, invalidating certain zoning ordinances as 4. Zoning and Planning ~=~151 they refer to appellee and to specific real Doctrine of equitable estoppel is appli- property owned by appellee, requiring the cable to a local government exercising its city to approve a site plan (conditioned zoning power when a property owner rely- upon the correction by appellee of three lng in good faith upon some act or omission specified deficiencies) and, ultimately, to is- of government has made such a substantial sue a building permit. change in position or incurred such exten- Prior to June, 1966, appellee acquired 261 sire obligations and expenses that it would acres of real property in the unincorporated be highly inequitable and unjust to destroy area of Broward County. After prelimi- rights he has acquired, nary negotiations with the city (there is a 5. Zoning and Planning ~ 151 conflict of testimony, unresolved in the cir- City was equitably estopped to deny cult court, as to which party initiated these owner's rights in original zoning classifica- negotiations), appellee presented the city tion permitting erection of miniwarehouse with a proposed development plan. The shopping center where owner relied in good parcel was then annexed by the city and faith upon that zoning to induce him to three ordinances were adopted zbning the request annexation of property by city and property in accordance with the previously not only expended considerable sums of approved development plan. Appellee pro- money, but substantially changed nature eeeded over the next several years to devel- and contour of property and its drainage op the property as permitted by the ordi- system because of that reliance, nantes and as contemplated by the plan. 6.' Zoning and PLanning a=~622 In 1969 the city attempted to change the Order directing city to approve site zoning of a portion of appellee's property to plans and issue building permit upon correc- prohibit a contemplated project permitted · CITY OF LAUDERDALE LAKES v. CORN Fla. 241 Cite ~ 427 $o.2d 239 (FimApp. 4 Ol_~t. 1~3) by the original zoning. Litigation ensued which are particularly pertinent to this ap- resulting in a judgment holding that the peal. city was estopped from changing the zon- The evidence presented in this case in- ing. No appeal was taken from that judg- dicates that the Plaintiff's efforts were in ment. accordance with the development plan The next activity of consequence con- submitted to and approved by the City, cerns the portion of the property specifical- and further, that the entire cost of the ly in issue here. That parcel is zoned C-lA, initial land development was borne by the a commercial use zone, and lies immediately Plaintiff. These costs included, but were north of a canal designated as C-13. Ac- not limited to, land clearing, demucking, cording to appellee the canal was so located filling and grading of the land and the to insulate residential areas from this corn- construction of a system of canals and mercial property. Pursuant to applicable waterways throughout the 261-acre par- t ordinances appellee filed, for approval, a eel of land. This system of canals and proposed set of preliminary site plans for a waterways specifically included the canal shopping center in one area of the eommer- known as the C-13 canal, which separat- eial property and a mini-warehouse complex ed the C-lA property from other residen- on the westernmost portion of that parcel, tially-zoned aereas [sic] within the 261 The various city departments and officials acres. processed the site plans and after sundry amendments and recommendations, the site The evidence further establishes that plan along with the Planning and Zoning the Plaintiff in this cause has expended Board's recommendation of approval was in excess of $100,000.00 in preparing the presented to the City Council, at a public C-lA property to be developed in accord- meeting on May 31, 1977. After discussion ance with the previously approved Ordi- about the assessed valuation of the land and nances# 103 and # 105. These sums a comment directed toward aesthetics the were expended in reliance upon the City's matter was tabled. It was reconsidered action with reference to the assignment and again tabled at meetings on June 14, of the C-lA classification to the property 1977, and June 21, 1977, and at the latter in question. They would have not been meeting was rescheduled to be considered expended had it not been for the action on July 12, 1977. of the City in designating the property At the meeting of July 12, 1977, the City under the zoning classification of C-lA. Council for the first time discussed changes in the zoning code to eliminate mini-ware- Prior to July 12, 1977, the City of Laud- houses as a use permitted in property zoned erdale Lakes sent or published no notices C-IA (Ordinance # 548) and to change the to the Plaintiff of any public hearing to classification of appellee's parcel from be held on the question of whether or not C-lA to B-3 (Ordinance # 549)., These Plaintiff's C-lA property should be re- ordinances were adopted. Another ordi- zoned or that a hearing would be held on nanee, # 552, imposing a building morato- any specific re-zoning proposal. In fact, rium on appellee's property was also pro- the City of Lauderdale Lakes had made posed and it was adopted at a subsequent no effort whatever to re-zone Plaintiff's meeting. After adoption of the two ordi- C-lA property from July 12, 1966, to July nances the council took up the matter of 12. 1977, a period of 10 years_ appellee's preliminary site plan. The coun- cil voted unanimously to deny approval. The Court finds from the evidence This litigation ensued, presented that Ordinances # 548, # 549 The circuit court ultimately entered a and # 552 were enacted by the City ira- final judgment which contained findings of properly and not in accordance with the fact concluding that events transpired much requirements of the City Charter. Fur- as recorded in the foregoing synopsis and ther, the evidence speeifical!y indicates including the following specific findings that the City C~uncil was reacting to the 242 Fla. 427 SOUTHERN REPORTER, 2d SERIES demands of the residents of the near-by 1 condominium building (the Amicus Curl- WAS RELIEF BY WAY OF MANDAMUS ae herein) and was attempting to satisfy LEGALLY SUSTAINABLE UNDER the demands of these residents without THE FACTS AND LAW OF THIS consideration for the rights of the Plain- tiff herein pursuant to the Ordinances of CASE. the City of Lauderdale Lakes. Relying on case law holding that manda- Finally, the Court finds from a review taus wi.Il not lie to compel the doing of a of all of the evidence that the preliminary discretionary act, the city points to lan- site plans presented by the Plaintiff with guage in appellee's petition for mandamus reference to the proposed mini- complaining that the City Council "failed to warehouse/shopping center development exercise good faith in the discharge of their contained 3 specific deficiencies. It is the judgment and limited discretion for the pre- further finding of the Court that these liminary approval of site plans." Appellant deficiencies were before the City Council, cites State ex re/. Zuckerman-Vernon Corp. but the City Council did not provide the v. City of Miramar, 306 So.2d 173 (Fla. 4th Plaintiff with an opportunity to correct DCA 1974) in support of its proposition that the deficiencies in question. The evi- mandamus is not available under such ~ir- dence establishes that the City Council cumstances. was required to give the Plaintiff the [1] In ~.ro__w_a_rd_~_~.y.n_ty v._Nareo_.Realtr opportunity to correct the deficiencies: Inc., 359 So.2d 509 (Fla. 4th DCA 1978) we and when the corrections were made, the receded from any suggestion which might Ordinances of the City of Lauderdale be taken from the language in Zuekerman- Lakes would require the City Council to Vernon Corp. that mandamus never lies to approve final site plans, require approval of a plat. We specifically The final judgment determined that be- held in Narco Realty Inc. that where all of cause appellee not only expended money the legal requirements for platting land but also made substantial physical changes have been met there is no residual discre- in the land in reliance upon the city's under- tion to refuse plat approval and mandamus taking in adopting the original zoning ordi- will lie. The same reasoning applies to nances, it would be grossly unfair at this approval of site plans. Here disapproval late date to permit the city to change the was not based upon the three technical deft- zoning. The trial court further declared eiencies but instead followed from a change ordinances numbered 548, 549 and 552 in- in zoning. That change having been invali- valid and unenforceable for failure of the dated there is no impediment to requiring city to follow its own notice and procedure the formality of approval upon the correc- requirements and for lack of evidence to tion of those deficiencies. No element of support a showing that these ordinances discre_tJ~n__remains once the I_eg_a_!._r_equ_i~e- "were enacted as a result of compelling merits have been met. As we said in the reasons or [of---sic?] public health and safe- Narco Realty Inc. case: ty." All persons similarly situated should be The trial court held that the city was able to obtain plat approval upon meeting "estopped to deny Plaintiff's {appellee's] uniform standards. Otherwise, the of fi- rights in [the original] zoning classifica- cial approval of a plat application would tion.' The court then directed the city to depend upon the whim or caprice of the approve the site plan when the designated public body involved. Yokley, in his deficiencies had been corrected and in due work, Law of Subdivisions, § 52, states: course to issue an appropriate building per- "Thus, while public policy requires mit. municipal control of such development. The city suggests four impediments to nevertheless, the authority of a town to the validity of the final judgment. We deny a landowner the right to develop address the issues as presented by appellant his property by refusing to approve the city. plat of such development is. by statute. CITY OF LAUDERDALE LAKES v. CORN Fla. 243 Ci{e Is, 427 So.2d 239 (FI~.App. 4 Dist. 1983) made to rest upon specific standards of support the application of an equitable a statute or implementing ordinances, toppel against the city. Thereafter, the approval or disapproval of the plat on the basis of controlling [2-4] It is well established that "[a]n standards becomes an administrative owner of property acquires no vested rights act." in the continuation of existing zoning or Likewise, in Section 53 of the same work, land use regulations as to such property the author states: unless matte~ creating an estoppel against "When the statutes and ordinances the zoning authority have risen." City of have been complied with in making a Gainesville v. Cone, 365 So.2d 737, 739 (Pla. plat of a subdivision, the active approv- 1st DCA 1979). Thus a municipality "may al by a village beard has been held to be equitably estopped to enforce a change be ministerial, and such act may be in zoning regulations against one who has enforced by a writ of mandamus." substantially altered his position in reliance 4 Anderson, -American Law of Zoning upon the original regulation ..... "City of (Second Edition) § 26.04, (1976) states: Miami Beach ~'. 8701 Collins At:e, 77 So.2d "Mandamus to compel plat approval 428, 429 (Via. 1954). The test for application has been successful where the court, of the doctrine is stated succinctly in Town applying common-law principles, deter- o£ Largo v. Imperial Homes Corporation, mined that when a subdivider has com- 309 So.2d 571, 572 (Fla. 2,d DCA 1975): plied with all of the standards for plat The doctrine of equitable estoppel is approval, such approval is a ministerial act which the court may compel applicable to a local government exercis- through a writ of mandamus .... " lng its zoning power when a property Id. at 510. owner (1) relying in good faith II (2) upon some act or omission of the WAS THERE COMPETENT SUBSTAN- government TIAL EVIDENCE TO SUPPORT THE (3) has made such a substantial change COURT'S CONCLUSION THAT THE in position or incurred such extensive APPELLEE HAD EXPENDED IN obligations and expenses that it would EXCESS OF $100,000.00 IN PREPAR- be highly inequitable and unjust to de- lNG THE PROPERTY iN QUESTION stroy the rights he has acquired. FOR DEVELOPMENT PURSUANT TO ORDINANCES 103 AND 105 AND [5] The final judgment determined that THAT SUCH EXPENDITURES appellee relied in good faith upon zoning WERE MADE IN RELIANCE UPON enacted by the city to induce him to request THE CITY'S ACTION WITH REFER- annexation of his property by the city and ENCE TO THE CLASSIFICATION that he (l) expended considerable sums of OF THE PROPERTY IN QUESTION money and (2) substantially changed the AND A 1969 LAWSUIT. nature and contour of the land and its III drainage system because of that reliance. Accordingly, the judgment concluded it WAS IT ERROR FOR THE TRIAL would be grossly unfair to permit the city COURT TO FIND THAT THE AP- to change the zoning in mid-stream The PELLEE HAD A VESTED RIGHT TO findings of fact are supported by THE ZONING CLASSIFICATION rial competent evidence and the conclusions C-lA PERMITTING THE ERECTION of law follow logically from the findings. OF MINI-WAREHOUSE/SHOPPING We are not permitted and we therefore CENTER. have not attempted to reweigh the evidence In essence appellant argues that there or to consider the relative credibility of was not substantial competent evidence to testimony. 244 Fla. 427 SOUTHERN REPORTER, 2d SERIES We come, then, to appellant's final point sider whether application of the doctrine of on appeal, estoppel by judgment based upon the 1969 judgment would similarly support an al- IV firmance. WAS IT ERROR FOR THE COURT TO Having determined that the final judg- ment is supported by substantial competent DIRECT THE CITY TO APPROVE evidence, we affirm. SITE PLANS AND ISSUE A PERMIT UPON THE CORRECTION OF CFR- AI~FIRMED' TAIN DEFICIENCIES IN SAID PLAN AND IN EFFECT TAKE ANSTEAD and BERANEK, JJ., concur. AWAY FROM THE APPELLANT THE DISCRETIONARY DUTIES OF j~ THE LEGISLATIVE BODY. . [6,7]. To the extent that appellant's statement of this argument raises the issue of the discretionary power of the municipal- [ ity to act or not to act where all legal requirements have been met, we refer back to our conclusions under Point I. The new Grant Wesley HUCKER, Jr., Appellant, ordinances were struck down for failure of v. the city to fulfill its own notice and proce- CITY OF OAKLAND PARK, Florida, dural requirements. The implication that et al., Appellees. this is an interference with a legitimate exercise of the legislative prerogative is No. 81-2386. unwarranted. To the extent, also, that the District Court of Appeal of Florida, point suggests that approval of a plat or a Fourth District. site plan is a legislative function, we disa- gree and adhere to the view that such a Feb. 16, 1983. function is administrative rather than leg4s- lative. Appeal was taken from an order of the Of ultimate importance, however, is the Circuit Court, Broward County, Barbara fact that the city has been found to be Bridge, J., which dismissed an action equitably estopped from changing the zon- against two city employees individually. lng. To suggest that this usurps a legisla- The District Court of Appeal, Letts, C.J., tire function or that the discretion remains held that police officers, who were sued nonetheless to thwart appellee's site ap- individually for false imprisonment and ma- proval would not only be counter-productive lieious prosecution, were not entitled to dis- but indeed a contradiction in terms and a missal of the complaint because of plain- reversal of the legislative and judicial roles, tiff's failure to comply with statute requir- Obviously circumstances may be envisioned lng written notice of a claim to he given to which would preclude an estoppel as where a municipality_ the public health or safety is placed in Reversed and remanded. jeopardy. In the absence of evidence of some such factor, however, a municipality will be held to the same standards of fair Municipal Corporations ~=,7~1.1(4) dealing that are applied to other entities. Police officers, who were sued individu- That was done here and we find no error, ally for false imprisonment and malicious In light of our holding that the doctrine prosecution, were not entitled to dismissal of equitable estoppel requires affirmance of of the complaint I~ecause of plaintiff's fail- the judgment under review we do not con- ute to comply with statute requiring writ- COLONIAL APTS. v. CITY OF DeLAND Fla. 593 Cltem~77 So.2d $93 (FI~App.$ DI~. 19~1) nual income. This is not a pittance, but is proval of site plan. City denied approval. patently inadequate in view of the hus- Partnership petitioned for writ of certiora- band's gross income of $240,000 a year ri. The Circuit Court denied the petition. ($130,000 net income) as a successful car- Partnership petitioned for writ of certiorari diologist and the relatively affluent life to review Circuit Court's denial. The Dis- style which the parties enjoyed during the trict Court of Appeal, Pete~on, J., held marriage. The wife, at the very least, de- that city could not approve site plan for serves $3,000 a mont~ in permanent alimo- construction of apartment complex which ny so that her gross annual income, includ- would have density of 13 units per acre on ing her teaching.income, is increased to a condition that density not exceed 6 units far-from-handsom~ $60,000 a year--as per acre, in that oydinance specifically al- urged by the wife. Although I am loathe lowed for density of 16 units per acre in to interfere with the trial court's discretion district in which complex was sought to be on this matter, I am nevertheless driven to built. the conclusion that the $1,500 a month awarded in permanent alimony was arbi- Writ granted, order quashed, remand- ed with directions. trary and unreasonable under any reason- able view of this record--and that the wife's request for a meager increase to $3,000 per month in permanent alimony 1. Zoning and Planning ~378 would tend to right, at the lower end of the Opinions of neighbors, by themselves, reasonableness scale, the income imbalance are insufficient to support denial of pro- which unfortunately the final judgment posed development. creates. DeCenzo v. DeCenzo, 433 So.2d 1316, 1318 (Fla. 3d DCA 1983); Cart v. 2. Zoning and Planning ¢:~382.1 Car'r, 522 So.2d 880, 884 (Fla. Ist DCA 1988); Pirino v. Pirino, 525 So.2d 1028 City could not approve site plan for construction of apartment project which (Fla. 5th DCA 1988). would have density of 13 units per acre on I would therefore reverse the alimony condition that density not exceed 6 units awarded herein and remand the cause to per acre; 16 units per acre was within term the trial court with directions to award the "low density" used in statement of intent wife $3,000 a month in permanent alimony; portion of zoning ordinance, and nothing in in all other respects, however, I would af- ordinance would leave one who examined it firm the final judgment under review, to suspect that term "compatibility" as used in statement of intent was meant to allow adjustment of cap of 16 units per acre. 3. Zoning and Planning ¢~66 COLONIAL APARTMENTS, L.P., etc., Petitioner, While project density is legitimate con- cern and is most important concern, it is v. concern that must be addressed and ex- CITY OF DeLAND, etc., Respondent. pressed in appropriate ordinances. No. 90-1377. 4. Zoning and Planning District Court of Appeal of Florida, Fifth District. When law establishes specific allow- able density, its clear terms cannot be var- Feb. 14, 1991. led by forced interpretation of intent. Rehearing Denied April 8, 1991. 5. Zoning and Planning Limited partnership sought to con- ~ Review by District Court of Appeal of struct apartment project and sought ap- circuit court's decision denying petitioner's 594 Fla. 577 SOUTHERN REPORTER, 2d SERIES challenge to city's denial of approval of site space, recreation areas, and adjacent plan was limited to determination of wheth- properties. er circuit court afforded procedural due process and applied correct law. U.$.C.A. Const. Amends. 5, 14. (E) Dimensional requirements. The following requirements shall apply in the R-4 District: Jason G. Reynolds of Coble, Barkin, Gor- (1) Minimum project site. A two-fatal- don, Morris & Reynolds, P.A., Daytona ly or multi-family dwelling project site Beach, for petitioner, should be approximately one acre or Astrid de Parry, City At.ty., DeLand, for more in area in order to accommodate respondent, at least two (2) or three (3) buildings, and in any case be sufficient in size to PETERSON, Judge. meet the requirements set out herein. Colonial Apartments, L.P., petitions for a (2) Project density. The maximum al- writ of certiorari to review the circuit Iowable number of dwelling units shall court's denial of a petition for a writ of not exceed sixteen (16) units per acre. certiorari filed in that court. The petition in the circuit court asked for relief from an administrative action by the City of De- (F) Building height. In order to encour- Land in denying approval of a site plan age variety in the appearance of building submitted by petitioner. We grant the roof lines and more usable or landscaped writ. area, developers are permitted to design a portion of the multi-family dwelling Petitioner sought to construct an apart- project to a maximum height of three (3) ment project on an approximately twenty- stories or forty-five (45) feet provided the acre site in the City of DeLand. The site following conditions are met: had been rezoned R-4 under section 33-8.1 of the DeLand Code of Ordinances at the time of its annexation into the city in 1972. (3) No three-story structures shall be The ordinance has remained substantially located adjacent to a single-family resi- unchanged since the annexation, dential area as shown on the zoning Pertinent portions of the ordinance pro- map or land use plan. vide: ..... * (A) Statement of intent. The intent of (H) Screening. A minimum five-foot the R-4 dwelling district is to: high screen shall be provided along side (1) Permit the construction of totally and rear lot lines that abut upon a single- planned single-family cluster develop- family residential area as shown on the ments or duplexes, triplexes and Iow- zoning map or land use plan but shall not density low-rise garden type apart- be required in any front yard or along ments on relatively large tracts of land side lot lines abutting a street, park, in single or common ownership; stream, lake or golf course .... (2) Require the preparation and ap- proval of detailed site, landscape, traf- fic, parking and other plans deemed (N) Architecture and environmental necessary as part of an overall devel- quality guidelines. In order to prgmote opment concept; architectural and environmental q~ality within the project, the developer is eh- (3) Require a greater amount of open couraged to utilize the followi~ng guide- space and recreation area to building area; and lines in designing the project: (4) Achieve an esthetic and compatible relationship between buildings~ yards, (2) The architectural design of build- patios, parking areas, common open ings should be developed with consid- COLONIAl, ~r to ...... Clte~sST~ So~2d 593 (Fla.App. S Olst, 1991) eration given to the relationship of ex- development plan. The city further argued isting adjacent development in terms that a planned development in the R-4 zon- of building height, mass, texture, line, lng district was more analogous to a special and pattern, exception use than a rezoning, and that Additionally, the ordinance provided in density was a proper consideration under rather specific terms for setback require- the "statement of intent" portion of the ments, spacing between buildings, number ordinance that required an "aesthetic and of stories and height requirements, mini- compatible relationship" with.,, adjacent mum livable floor area in square feet, properties. screening, parking requirements and de- The circuit court denied the petition in a sign, vehicle access lanes, sidewalks, open sixteen-page opinion and order in which it space requirements, landscaping, signs, discussed: (1) the illegality of the initial and architectural and environmental quail- rezoning (noting that it was not necessary ty guidelines, to rule upon this issue since "ali parties Petitioner attempted to comply with the agreed that the R-4 zoning designation requirements of the ordinance and sub- should be presumed valid"); (2)the inade- mitted for approval a site plan that provid- quate level of city services and increase in ed for a density of thirteen units per acre. traffic; (3) the fact that the site is sur- The city's planning authorities recom- rounded on three sides by Iow density, sin- mended to the city commission that the gle-family, residential and agricultural use plan be approved with certain changes not and the fact that the closest existing multi- involving density; the petitioner agreed in family development has a density of 4.25 to writing to make the suggested changes. 4.5 units per acre; and (4) the generally The city commission tabled action on the accepted planning standard for Iow-density, plan at the first consideration when adjoin- multi-family developments of five to eight lng landowners voiced opposition. Then, at units per acre. The order concluded by a commission meeting on December 18, holding that the city had discretion to con- 1989, final action was taken that approved dition site plan approval for a multi-family the plan with the single condition that the development in the R-4 zoning district on a density not exceed six units per acre. The reduction of project density, and that the city directed a letter to petitioner on De- city's determination was supported by sub- cember 21, 1989, stating the reason for its stantial competent evidence that six dwell- action: ing units per acre would be more compat- 1. Based upon Section 33-8.1(A)(1), the ible with surrounding properties. The rjr- proposed development did not meet the cult court also commented that "[p]roject criteria of being "low-density low-rise density is of legitimate concern to the City garden type apartments on relatively Commission in determining whether or not large tracts of land"; and to approve a site plan for a multifamily 2. Based upon Section 33-8.1(A)(4), the development in the R-4 zoning district." proposed development did not achieve an The appendices provided by the parties aesthetic and compatible relationship included copies of the legislative history of with the adjacent properties, the annexation, including 1972 minutes and Petitioner' then requested that the circuit ordinances. That history reflected that the court grant review of the action of the city primary purpose of the city in annexing the commission and argued that the action had site in 1972 was to promote the joint cf- the practical effect of illegally down-zoning forts of developers of lands in the general the site from sixteen to six units per acre. location of the site to construct a master Tl~e city responded by arguing that the site sewer lift station and discourage installa- had never been properly zoned R-4 when tion of four to six individual small package annexed because of non-compliance by the treatment plants. Nothing in the 1972 applicant and the city with notice and hear- records provides the slightest hint that den- ing requirements and/or a required sketch sity was a consideration except the state- 596 Fla. 577 SOUTHERN REPORTER, 2d SERIES ment in ordinance number 72-34 that "the cial attempts at interpretation and are building of R-4 multiple family dwellings propriate in our review of the DeI~nd ordi- on the subject property would be consistent nance. Some of the basic rules were set with the City's Comprehensive Use Plan, forth in Rinker Materials Corporation v. which plan has been approved by the Plan- City of North Miami, 286 So.2d 552 (Fla. ning Board of the City of DeLand as well 1973): as the technical assistance of the Volusia (a) In statutory construction, statutes Council of Governments .... " The appen- must be given their plain and obvious dices contain neither copies of pertinent meaning and it must be assumed that the portions of the comprehensive plans nor legislative body knew the plain and ordi- minutes of the 1989 city commission meet- nary meanings of the words. ings that would allow any insight into the .... substantial down-zoning of the site. (c) Since zoning regulations are in der- We view the issue that was presented to o~'ation of private rights of ownership, the circuit court as one of construction of words used in a zoning ordinance should the R-4 ordinance. While there may have be given their broadest meaning when been an additional issue initially on the there is no definition or clear intent to validity of ordinance 72-34 that zoned the the contrary and the ordinance should be site R-4 and annexed it into the city limits interpreted in favor of the property own- of DeLand, that issue was removed from er. consideration by the circuit court through Id. at 553 (footnotes omitted). In Rinker, the stipulation of the parties, the supreme court also cited Rose v. Town [1] The elected and appointed officials of Hillsboro Beach, 216 So.2d 258 (Fla. 4th charged with the administration of city and DCA 1968), for the rule that courts gener- county government are subjected to in- ally may not insert words or phrases in creasing pressures. On one hand, they are municipal ordinances in order to express pressed to allow growth only if it is com- intentions which do not appear, unless it is mensurate with available roads and servic- clear that the omission was inadvertent, es. On the other hand is the pressure from and must give to an ordinance the plain and landowners who wish to develop their va- ordinary meaning of the words employed cant properties in a manner that results in by the legislative body. Id. at 553. the largest return of capital or pleasure. [2] This court followed another basic Still another pressure is the desire of rule in City of Ormond Beach v. State ex neighbors who do not wish their present tel. Del Marco, 426 So.2d 1029 (Fla. 5th enjoyment of their lands disrupted in the DCA 1983), when we stated that the pti- slightest by the use of adjoining vacant mary guide to statutory interpretation is property. Opposition of surrounding prop- the determination of legislative intent. It erty owners must be considered by the city is only the interpretation of the statement in the instant case since the statement of of intent of the DeLand ordinance that intent of the R-4 ordinance includes the causes the problem in the instant case, desire to achieve aesthetic and compatible since the other portions of the ordinance relationships between adjacent properties, are rather precise in directing the manner But the opinions of neighbors by them- in which a parcel of land designated R-4 selves are insufficient to support a denial may be used. This st~ment of intent was of a proposed development. BML Invest- used by the city to vary the rather straight- ments v. City of Casselberry, 476 So.2d forward pronouncement of the ordinance 713 (Fla. 5th DCA 1985), rev. denied, 486 that limited the l~oject density to sixteen So.2d 595 (Fla. 1986); Conetta v. City of units per acre. The record shows there Sarasota, 400 So.2d 1051 (Fla. 2d DCA was no evidence of intent before the trial 1981). court other than the language of the ordi- General rules of statutory construction nance and the history of the annexation. in zoning matters have evolved in past judi- The history seems to indicate that the city COLONIAL APTS. v. CITY OF DeLAND Fla. 597 t Clle ~ 577 So.2d 593 (FILApp. 5 Dlsl. 1991) induced the then-landowner to seek annexa- a site-plan showing thirteen units per :' tion in return for the R-4 zoning and avail- acre is absurd when considering the ability of sewer facilities, surrounding properties. The city's As to the language of the ordinance, we own professional planning board did note the following: not seem to consider the site-plan ab- 1. The ordinance does not define the surd when it endorsed it with suggest- terms "Iow density" and "large tracts of ed changes not involving a density land" as stated in section 33-8.1(A)(1). change. Some assistance in interpreting the term The operative portions of the ordinance "Iow-density" can be gleaned, however, reviewed indicate that, for purposes of this from several sections of the ordinance: ordinance, sixteen units per acre is within (a) Subsection (E)(1) provides that a mul- the term "low density" used in the state- ti-family dwelling project site ("multi- merit of intent portion of the ordinance. pie-family dwelling"), which includes a Furthermore, nothing in the ordinance "garden apartment" pursuant to sub- would lead one who examines the ordinance '~ section (B)(3), should be approximately to suspect that the term "compatibility" as 'i one acre or more in size to accommo- used in the statement of intent was meant date at least two or three buildings, to allow adjustment of the cap of sixteen Subsection (B)(2) describes a garden units per acre prescribed in subsection (E). apartment as a group of two to eight The city relies in part on Life Concepts, owner- or renter-occupied dwelling Inc. v. Harden, 562 So.2d 726 (Fla. 5th units, but this number may be in- DCA 1990), for its contention that the al- creased to twelve if approved by the ]owable density can be adjusted because planning board. This implies that each the statement of intent requires that a building can have eight units without project have a "compatible relationship" the approval of the planning board. If with adjacent properties. The City of eight units are allowed and at least Apopka ordinance under review in Life two buildings are to be accommodated Concepts required that a use be "compat- on approximately one acre, a simple ible with the surrounding residential uses." calculation allows us to arrive at the However, that ordinance is unlike the one maximum project density of sixteen in the instant case in that the phrase used units per acre. Whether sixteen units in Apopka constituted a density restriction. per acre are considered Iow, medium, The operative portion of the Apopka ordi- or high density in other legislation is nance specifically provided that "It]he max- not clear or even material to this case, imum number of occupants to reside in the but in this ordinance, this number of facility shall be compatible with the sur- units appears to fit the definition of a rounding residential uses .... " Id. at 727. low-density, garden-type apartment. Moreover, unlike DeLand's ordinance, (b) The ordinance contemplates that the Apopka's ordinance never specified density R-4 zoning use would be placed adja- at a certain number. We find most signifi- cent to a single-family residential area cant the comment in Life Concepts: "Had indicating compatibility. Subsection the ordinance provided a specific numerical (F)(3) prohibits three-story structures cap on the occupancy of the home, the adjacent to a single:family residential zoning board would have been prohibited area, and subsection (H) requires from considering the actual impact of the screening through the use of hedges proposed use." Life Concepts, at 728. and wood or masonry construction [3,4] We agree with the city that along side and rear lot lines abutting a project density is a legitimate concern and single-family residential area. This go further in stating that it is a most recognition in the ordinance that R-4 important concern. But it is a concern that and single-family districts can abut in must be addressed and expressed in appro- the city's scheme of zoning undercuts priate ordinances. A community should be the city's argument that the instant developed in accordance with planned ac- petitioner's attempt to gain approval of tion. Development decisions should not be 598 Fla. 577 SOUTHERN REPORTER, 2d SERIES made in reaction to an application that re- '~ lies on an ordinance establishing a density Moses EULINE. Appellant, no longer acceptable to the majority of the current members of a governing body. v. Owners are entitled to fair play; the lands The STATE of Florida, Appellee. which may represent their life fortunes No. 89-584. should not be subjected to ad hoc legisla- tion. Density is one of the most important District Court of Appeal of Florida, elements in the marketplace today in deter- Third District. mining land value. When a law establishes Feb. 19, 1991. a specific allowable density, its clear terms cannot be varied by a forced interpretation Rehearing Denied April 26, 199l. of intent. Such an ordinance should be interpreted in accordance with its plain meaning. Defendant was convicted in the Circuit [5] Our review of the circuit court's Court, Dade County, Stanley Go{dstein, J., decision is limited to a determination of of sexual offenses and he appealed. The whether that court afforded procedural due District Court of Appeal, Schwartz, C.J., process and applied the correct {aw. City held that evidence of improper conduct of Deerfield Beach v. Vaillant, 419 So.2d with defendant's daughter was not admissi- 624 (Fla.1982). The correct law applicable ble. in this case is that the ordinance should be Reversed. given its plain meaning and that any doubts should be construed in favor of a property owner. The circuit court's re- Criminal Law a=~372(7) liance upon the undefined and uncertain Evidence that, a few weeks after de- standards contained in the statement of fenclant allegedly engaged in digital vagi- intent when clear and specific numbers of nal and anal penetration of a 12-year-old units are expressed in that same ordinance friend of his daughter, he engaged in ira- is not an interpretation that recognizes the proper conduct by having the daughter rub plain meaning of the ordinance. It is not her uncovered genital area against his back fair to the governed that the simple issue was not sufficiently similar to the first of how many dwelling units are allowed offense, with which defendant was under this city ordinance requires a six- charged, to be admissible as other crimes teen-page trial court opinion interpreting evidence. the ordinance against a clearly expressed number. We grant the writ ofcertiorari,' ~' quash Bennett H. Brummer, Public Defender, the order of the circuit court, and remand and Alan M. Sorota, Special Asst. Public to the circuit court with directions to quash Defender, for appellant. the administrative decision by the City of Robert A. Butterworth, Atty. Gen., and DeLand to impose a condition that the den- Roberta G. Mandel, Asst. Atty. Gen., for sity of petitiorier's development not exceed appellee. six dwelling units per acre. ~' Writ GRANTED; order QUASHED; Before SCHWARTZ, C.J., and REMANDED with directions. GERSTEN and GODERICH, JJ. W. SHARP and GOSHORN, JJ., SCHWARTZ, Chief Judge. concur. The defendant Euline was charged with and convicted of two sexual offenses in- volving the digital vaginal and anal pen- etration of a twelve year old girlfriend of 1112 ~ 643 SOUTHERN REPORTER, ~d'SERIES and personal dispute between appellant and involvi~ t%~I ~utmi~istrative order sustain. ~ W enjoin enforc her employers. By the definition provided in lag County Planning Department's denial of ~ces sad ownerahip. section 448.101(4), the phrase ~law, rule or applic~on for vested rights detenn/ustion, sachs ~ recelp~ r~gulation' refers to enactments of & legisla- The District Court of Appel, Zehmer, C.J. See publication tire or s~lmlnistrative formn. This limit~ion held that fact that county continuously issued for other judicial to ~adopted" material only appears deliber- permit for unrestrict~ construction of pro- i~io~s. ate, and well-serves the public by hivging ject over period of 18 years with knowledge civil liability upon matters of which due no- of expenditures and improvements .,to be $ Zoning and Pianni rice, actual or imputed, has been conveyeik made for benefit of undeveloped as well a., Proper~ owner's Public policy is a protean thing, and provides developed land was legally sufficient to es- corporation from other at best, a shaky foundation for imposing dvil tablish that it would be gresdy unfair to trolled by owner did liability. Justice Terrell once obeewed, allow county to deny owners vested right, in property for purlx~ to seek determination "public policy was descrfOed as a very unruly Petition grant, d; cause remanded, continue development horse, and, when once you get astride it, you never lmow where it will e~srry you." Sto~ ~ 6. Zoning and Planni v. First National Bank & Trust Co., 11§ FI~ 436, 156 So. 101, 103 (1934), alt/ag, R'/o~ard- L Zoning and Plamflng ~ ?~ Current owner and son v. Mzlid~ 2 Bing. 229, text 252, 9 E.C.L. When trial court reviews decision of ty has sufficient intere~ ... 567. hear~ offer resard~ f~ ~cimh~e ~ ~ahie order of county pl_~nning department denying to file vested rights ap " Because we ~e~nnot agree that "public'poll- appllc~t/on for vested rights determination, kesl F, OnlnE ordilla~ee. cy~ issues such as those complained of by court is limited to determining whether pro- Ordinance No. ; appel_t~_t fall within the ~,mhit of section eedural due process wes accorded, whether 7. Zoning and Plannb 448.101(4), and because appe_-~_~nt offers no essential requirements of lawwere observed. other solid basis for estsblishiog a cailse of and whether administrative findings and Transferee of prop, action under section 448.102, we ~ffi~n the to assert c!~m of equit dismissal of her complaint with prejudice, judgment were supported by competent and subetantial evidence. West's F~S~ R.App. 'tranaferee's establishme dent act of reliance AFFIRMED. P.Rnle 9.030(c)(3). government. BARFIELD and LAWRENCE, JJ, 2. Zoning and planning ~=,377 8. Zoning and Plannk concur. Elements of ~equitable estoppel" for Property purchaser purposes of protecting property owners who sufficient acts of relianc lmve relied on actions of local zoaing anthori- Ch. ase of property to girt on some act or om'~m~J'on of gevemment and rights in cennect/en wit substant/al ch~mge in position or inawring of tion where property EqUITY RESOURCES, INC., ~esive obl/gations and expenses so that it contract ~ontingent on and Richard L. Pelham, would be hi~y i~eqllitable and ~Ilj-t~t to gl'lillta~d rezoning eonditi~ Petitioner~, destroy right acquired~ Leon County, Fla., of drainage system. Ordimmce No. 90-~1; Section IVA. I~ v. See publication Words and Phrases 9. Zoning and Plannin~ COUNTY OF LEON, Respondent. ~or other judicial consmictions and dd- There is no basis ir inilions, that expenses incurred No. 93-271L 3. Action ~:~13 must be exclusively for District Court of Appeal of Florida, of property in order for First District. Party has standing ff party has legiti- interest in zoning. mate er sufficient inter'=~t at stake in contro. Sept. 8, 1994. versy that will be affected by outcome of 10. Zoning and Plannit one project, there are ve~ 4. Zoning and Planning ~,571 for entire project withou Property owners petitioned for writ of Person with ~legally recognizable inter- costa incurred by landow certiorari after trial court denied petition eat" has standing to bring equitable estoppel beginning construction ;RIES EQUITY RESOURCES, INC~ v. COUNTY OF LEON Fl~ 1113 Ctte~643 So.2d !112 (Fl&App. I DtoL 1994) ~dmlni~t;~a~ve order susta/fl. ming Department's denial of action to enjoin enforcement of zoning ordi- attn~outed to each and every part of overall vested rights determination, mme~ and ownership of property constitutes project. ,m.t of Appeal, Zehmer, C.J. such a ~legally recognlmble interesL" See publication Words and Phrases 11. Zoning and Planning ~=,377 at county con~/nnously issued for other judicial constructions and def- For purposes of equitable estoppel in strieted construction of pro- inttions, conneefion with vested rights to approved af 18 years with knowledge development, it. is sufficient to show that and improvements to be ~ Zoning and Planning ~,STI substantial and not de ~ninimiR portion of :t of undeveloped as well ~ Property owner's transfer of property to owners' overall expenditures facilitated and w~s legally sufficient to es- corporation from other entities owned or con- benefitted future plumes of planned project. w~mld be grossly unfair to trolled by owner did not extinguish interest deny owners vested right, in proper~ for purposes of owner's standing 12. Zoning and Planning ~=467 ts seek determination of vested rights to There is no ~esonable time to develop" continue development of property, rule for large scale developments that would naturally contemplate and require poriod of -- 6. Zoning and Planning ~ years to complete, especially ff local govern- Planning ~:=605, 703 Current owner and developer of proper- ment is fully informed of scope of develop- court reviews decision of tY has sufficient interest at stake, as well as ment and has consistently and systematically · ~xrding finn! admlni~trative legally cognizable interest, to give it standing granted permits to continue develepment. ,hnnt,~g department denying to file vested rights application pursuant to 'ested rights determination, local zoning ordinance. Leon County, F~., 13. Zoning and Planning ~=465 o detormini~ whether pro- Ordinance No. 90-31, Section IV.A.I~ Fact that county continuously issued ~ was accorded, whether permitted for unrestricted construction of ne~ta of law were observed. 7. Zoning and Planning ~=,571 project over period of 18 years with knowt- tmt~ative findings and Tranderee of property h~ no standing edge of expenditures and improvements to be upported by competent and to assert claim of equitable estoppel absent made for benefit of undeveloped as well az ~ West's F~A. RApp. 'tranderee's establishment of some indepen- developed land was legally sufficient to es- ). dent act of reliance on promise made by tablish that it would be greatly unf~ to government, allow county to deny owners vested right at & Zoning and Planning ~=STI conclusion of development of second phaze of ''equitable e~oppel' for proje~ ct/ng property owners who Property purchaser clearly established ions of local zooming anthori- ! sufficient acta of ~!~,ce beyond mere pm-- 14. Estoppel ~52(2) m~or's s good fa/th reliance cha~ of property to give it standing to claim Doctrine of equitable estoppel is bnsed ~aiesion of government and equitable estoppel with regsrd to vested fundamentally on rules of fair play. ~ in portion or incurring of rights in connection with zoning determi~- ~ns and expeno~ so that it tion where property was purchased under inequitable and unjust to contract contingent on rezoning after county Thomas G. Pelham of Holland & Knight, ~ Leon County, FI~, granted rezoning conditioned on construction Tallahassee, for petttiune~ -31; Section IVA. I~ of drainage system. John C. Cooper of Cooper, Coppina & ,on Words and Phrases 9. Zoning and Planning ~=,465 Monroe, P.A., Tallshaesee, for respondent. fl consm~ctions and def- There is no bazis in hw for contention ZEHMER, Chief'~Judge~ - that expenses incurred by property owners must be exclusively for undeveloped portion Equity Resources, Inc., and Richard Pel- ~ding ff party haz leg/ti- of property in order for owner to have vested ham invoke this court, s jurisdiction under ~terest at stake in contro- interest in zoning. Florida Rule of Appelhte Procedure 9.030(b)(2)(B) to review by certiorari the trial ~ affected by outcome of 10. Zoning and Planning ~=465 court's order denying their petition for writ When property is zoned and planned az of certiorari involving a final administrative arming ~571 one project, there are vested rights in zoning order that sustained the Leon County Plan- legally recognizable inter- for entire project without any showing that ning Department's denial of their application o bring equitable estoppel costs incurred by landowner in planning and for a vested rights determination. The trial beginning construefion could be exclusively court's order approved the grounds of the 1114 ~ r~ SOUTHERN REPORTER, 2d SERIES EQUI~ hearing officer's det~rmirmtion with one ex- vested right~ of Leon County property own- For purpoaes of this Ii' ception, that Petitioners had not established ers are not lo~t by operation of the plan'.~ involved in the applies~ a vested right to continue their development proscriptious.2 On November 18, 1990, Peri. eeneeptually az three p under the county's 2010 Comprehemdve Plan. tioners limely filed an application with the referred to a~ Phase I, The standard of review under rule phuming department requesting a vested mately 10 acres. It has 9.030(bX2)(B) applies to this proceeding and rights determirm_tion for a 4?-acre parcel of is presumptively veste is limited to whether the ~ court afforded property located in Leon County on the Parcel two, or Phase II procedural due process and applied the cor- shores of Lake Jackson. Petitioner Equity and consists of approxi, n rect law. Education Day. Ct~'., Inc. v. ~ of Resources, a Florida corporation, earrently mitz for this second ph West Palm Be.a~h' goning Bd. of Alrpzo~ owns or has an ownership interest in all 47 meat had been iimued 541 SO~i 106 (F1~1989); C/t~/of De~3fe/d acres. Petitioner Pelham is President of Eq. Beach v. Vaillant, 41,9 So.2d 624 (Pla.1982); uity ResoRncos and, with his wife, jointly the permits were revokf Leon Couatlt ~. M/tckel/, 611 So,Od 104 (Fla. owns all of the stock in Equity Resources. rezoUed to Estate Distri lst'~)CA 1992). Based on the record before The 47 acres of property are part of a 165- parcel three cousiztz acres and is zoned cornn~, us, we conclude that the trial court did not acre development project bordering the the instant dispute is apply the correct law to the facts and there- southern portion of Lake Jaekzon known as planned development of ...... fore grant the writ.~ Bent. Tree. This project haz been under es. continuous planning and develoPment from L 1972, when it was origin!d_ iy puroha~ and The instant dispute arises under the Leon rezoned from agziealtu~ to RM-3 multi- On October 11, 1972, County 2010 Comprehemdve Land Use Ph~ family, until 1989, when a portion of the entered into an option to Pursuant to the plan, the county adopted property was down-zoned from muiti-fangly Bent Tree property. U Or~i~snco No. 90-31 to ensure that existing to Estate District.~ purchase of .40~8 acre. 1. B~cause of the limited scope of review, and Following exhaustion of these arlmini_~trati%'c contingent upon the ~ unless othetw~ noted, th~ h~ts set forth in this steps, ~ction IILC.5. of the ordinance providc.~ ~,olfillg of that portion opinion have been gleaned from the heating offi- for an "appeal" to a hearing officer. At thi.~ . Substantially all of the 4( cer's finding~ of fact which tbe trial court found point, the hearing officer may receive additional within the property to be ba~d on competent~ su/~tantial evidence, evidence, as well as oral or wriRe, n testimon~ We only determine whether thc trial court ap- (including c~s-examination) in order to propt-r- application. During the plied the correct I~w to those facts, l. zon County ly evaluate the staff committee's decision. Sec- r~viewing and ~pprovi-Ri v. Mitchell. tion III.C.5.g. of the ordinance, however, ¢xplic- application, Pelham disc 2. The plan and ordinance were adopted ia 1990 itly directs that this hearing is not a "hearing dc the con~pt.~tel llses inte pursuant to section 163.3167, Florida Statutes. novo-°' 16~-a~e tract. A med£ As noted by the hearing officer in his final order: Review of ~h¢ hearing officer's final order i, Pu~uant to the Ordinance, any Leon County provided for in section IlI.C.5.h. of the ordi- cept plan for developme property owner who believes that his or her nance. That provision authorizes judicial rcviex~ stallt prepert~'y, was el.st property rights to dtwelop property are vested by common-law certiorar/ to the circu/t co-n, the final rezoning approv and. therefore, believes that the property may ham iltformed the corn be developed without complying with the 2010 3. The 1989 down-zoning by the county occurred Comprehensive Plsn must file an application prior to the adoption of ~he 2010 Comprehensive would be developed ever provided by Lzon County within 120 days after Flan. It is currently the subject of litigation in bet of yeal's in 8ever~ ,Inly 16, 1990. Il: an application is filed pursu- .federal court. See Villa* ofL~ ~c/oon, L~d. ¥. During the process of ant to the Ordinsnce and it is determined that L~on County, 796 F.Supp.. 1477 (N.D.Fla. 1992~. ~ge from the Bent developraent rights have vested, the consisten- By the county's act of rezoning. Phase I1 oi I cy and concurrency requirements of the 2010 development was reclassified as "estate zoning' Lake Jackson became an · Comprehensive Plan do no~ apply to the prop- which corresponds to the current zoning applica- a storm water mallagerc, i: er~.. Section IV.C.2 of the Ordinance. lil; The application is initially reviewed by the staff bleto Phase II underthe plan. Since this rezon' siglled for all of the pt of the Talisb_*__*__-,ee-Leon County Flanning Depart- tag occurred prior to the adoption of the comprc- ment, If the staff cannot determine whether an hensive plan, the issues in the proceedings belox, 4. On fl~is point, the hea applicant's development rights are unequivocally were limited to a determination of petitioners following findings of vested, a hearing is conducted before a staff vested rights to thc commercial zoning of thc ttut~d by the trial court: committee consisting of the county attorney, the undeveloped 7.5 acre tract and to the Estate At all times since the director of planning, and the director of environ- District zoning of the remaining undeveloped 30 overall 165 acres of t menUd man~gemem. During this hearing, the acres. Despite the filing of their i:ederal law suit. Richard Pellmm has he applicant pr'--,:,ents all of the evidence in support it was incurnhent on Petitioners under section est either directiy in th of the application. At the conclusion of the hear- III.B. 1. of the ordinance to request a determina' vehicles or entities that lng, the staff committee votes to approve, condi- tion of vested rights within 120 days of the Jul.~ portions of the prope~ tionally approve, or deny the application, 16, 1990, adoption of the ordinance. [ limited partnerships th ~ EQUITY' RESOURCES, INC. v. COUNTY OF LEON Fla. 1115 Clte~4~ ~ 1112 (F]a. App. I Dl~ 1994) n County property o~. For purposes of this litigation, the 47 acres agreed to complete this system before any operation of the plan's involved in the application can be treated development commenced on the project if the ~Iovember IlL 1990, Pet/- conceptually as three parcels; Parcel one, county granted rezoning. an application with the referred to as Phase I, consists of apprexi- Rezoning was ultimately approved in Octo- it requesting a vested mately 10 acre~ It has been developed and ber 1972. Since the 1972 purchase of the for a 47-acre parcel of is presumptively vested under the plan. project, Pelham has continuously held an t Leon County on the Parcel two, or Phsse II, adjoins parcel one ownership interest either directly in the Land lson. Petitioner Equity and consists of approximately 80 acres. Per- or .in all of the partnerships or corporate a corporation, currently mits for tiffs second phese of the develop- entitles that have held title to the various tership interest in aH 47 ment had been issued and construction of portions of the land, including the property :lham is Pres/dent of Eq- multi-family units had been commenced when under consideration. ~, with his wife, jointly the permits were revoked and Phase H was · in Equity Resources. rezoned to Estate District in 1989. Finally, Following the purchase of the tract in perry are part of a 165- parcel three consists of approximately 7 1972, the drainage system was designed and project bordering the acres and is zoned commerciaL The focus of built at a coat of $45,000, with a capacity Lak~ Jackson known ~, the instant dispute is primarily on the larger than would have been necessary for project has been under planned development of the latter two phas- the instant property alone, Ai~er this sys- tem was coustructed, development of the · and development from es. project commenced. From 1975 to 1989, 128 ~ri~,~l!y lmrcha~ and ,L acres of the original 165 seres.were devel- :ultra-al to PM-3 multi- when a portien of the On October 11, 1972, Pelham and others oped in approximately 14 segments, with the entered into an option to purchase the overall county consistently approving permits for the -zoned fi'om multi-family Bent Tree property. Under the option, the development of these segments. While cer- purchase of .4028 acres of the tract was tain changes to the original concept evolved ~on of these administrativ,, contingent upon the sellers' obt~nlng a re- over time, none'were considered substantial i. o~ the ordinance provide, ZOn~ of that portion to RM-3 multi-family, enough to warrant denial of any permits. a bearing C~[lcer. At this Su]~tlttltiul~ all of the 4028 acres is included Equity Resources has held an ownership ~ may receive additional ~ oral or wrteon testimony within the property subject to the current interest in all of the property involved in this ninatlon) in order to proper- application. During the eounty's proesse of ease since 1987. Equity Resources acquired committee'· decision. S~c- reviewing and approving the 1972 rezoning this interest from limited partnerships and ordinance, however, explk.- applicatl0n, Pelham disclosed to the county other entities in which Pelham has hdd an hearing is not · '~earing the conceptual uses intended for the overall interest and control~ In order to develop lrtng officer'· final order i., l~ trae~ A model depietin~ the eon- the proper~ for'commercial and multi-family ~ton lII.C.$.h, of the ordi. cept plan for development, including the in- uses as zoned, Equity ~ made ar- vn authorizes judicial re~ie~, stsnt property, was also displayed prior to rangements for sewer and water service to ~iorari to the circuit court, the final rezoning approval In addition, Pel- serve the property through Talquin Electric ~1~ by the county occurn'd ham informed the county that the project Cooperative, In~ In 1967, Talquin Electric , of the 2010 Comprehensiv,' would be developed over an unspecified num- and Equity Resources applied to Leon Coun- ~ the subject of liti8a,lon in her of years in several different phases, ty for an expansion of the sewer service 'illas of Lake .rackson,/zd. ~-. During the process of review, the impact of franchise area to inc~u, de aH of the property. Supp.-1477 (N.D.FIa. 1992). · of rezonin~ l'hase II of th,. drainage from the Bent Tree development on The franchise grant~cl to Talquln Electric :l~ified as "estate zoning' Lake Jackson became an issue. Accordingly, involved capital expenditures of more than , the current zoning applica- a storm water management system was de- $'200,000 for the construction of a sewer sys- the plan. Since ~is rezon- signed for all of the property and Pelham tern to serve the entire project, including the adoption of the compri'- es in the proceedings belox~ 4. On t~is point, the hearing officer made the develop the land. including the property, at .-tetm/muion of petitioners' following findings of fact which were not dis- issue in this proceeding, either Richard PeI- commercial zonin~ of thc turbed by the udal court: ham or Equity Resources, Inc.. has always · tract and to the Estate At all times ·ince the 1972 purchase of the been the general partner with one exception. .~-maining undeveloped 30 overall 165 acres of the Bent Tree project. From 1981-1986, while Lake Jackson, Ltd., in~ of their federal la~' suit. Richard Pelham has held an ownership inter- had tide to a pnrt of the property at issue./dr. t Petitioners under section est either directly in the land or in nil of the Pelham was not the general panner of Lake ~ce to request · determina. : vehicles or entities that held tide to the various Jackson, Ltd., but did retain a 40 percent inter- ~tthin 120 days of the .lul> i portions of the property. With regard to the est in the partnership. [ the ordinance._ I~il limited parmer~hipe that have been used to 1116 ~ 643 ~OUTI~RN REPORTER, 2d .~RI~$. EQI ~ P~ I ~d H. E~ ~nd~ ~o~ s~ T~q~ EI~c W ~d ~ ~ W o~ ~n~ud~ ~ Pe~on~ ~ ~ ~~gon ~e ~e ~ of ~e p~. ~ ~ ~ ~,~ ~ ~e ~ P~ I ~d II of ~e o~ ~ i~ ~ 1~ ~ apply- d~ ~ ~le p~. ~, it ob~ b~ ~ ~d comple~ ~on of ~e Eq~ ~ ~ P~ ~r ~ No. ~1. m~fl4~y ~ d~opm~t P~ I, ~d ob~e ~m~ ~d ~e ~t w~ ~ ~ ~ 1~, ~e ~ ~e d~ ~ appHe~ b~g ~ ~m ~e IL ~ ~ ~ ~ 1~, Pe~on- ~y, ~e ~.~ ~ey ~ve ~ ~&~ ~ p~ ~ E~ ~ ~ s~g S~ ~g. H~ B, ~ of ~,~ for p~, ~ ~ d~opm~t of ~ ~H ~ for ob~ ~~ ~d ~' ~le ~p~ ~ m~ ~ "~- ~ ~ ~ ~ ~1~ ~on ~ ~ ~ f~ d~&- opm~L ~ ~ ~n~d ~t ~ ~ ~ ~ no ~ ~ey ~ ~v. lm~H~ ~ ~n~ do not ~dude ~ for ~ ~ for ~e ~d~&o~ ~ ~ D~ 1~5); d~o~ent ~ ~e ~ ~, ~ ~on ~ ~e ~, ~ ~e ~n~- ~ ~ G~ ~ ~.~ for ~d p~, ~ Pe~on~ ~t ~t a · e ~,~ ~ ~ W ~e p~ ~ m~t'~d ~ H. [1] ~en ~e B. d~on of ~e Ah~on~e~p~onfor~v~ R~e of ~ ~ 9.~c)(3). hie ~d ~t W d ~gh~ d~on ~ h~d co~ ~ ~e ~ ~ent on ~t 5, 1~1, foB~ ~& W de~ (1).whe~ ~ due · ~0 ~ at 479. · e ~t~ d~ ~e ap~fio~ Pe~- ~ ~ ~ (2) ~e~ ~e ~en- ~on~ ap~ ~ ~e ~ah~~. Ah~g~ (3)~e~e~~d ~e~m&dnot hdd on ~ 10, 1~1, W.~e ~e ~ ju~t w~ sup~ by ~m~t ~d ~ of ~Wp~ b. ~on of ~~ 5. ~ ~e~ ~ ~ ~ ~ ~ l~ du~ ~ ~ ~ ~ ~ ~'s ~ d ~lv~ ~ ~ d $2~,~ "~or ~ of ~ ~ b~ · ~ ~ eom ~ not ~d~ EQUITY RESOURCES, INC. v. COUNTY OF LEON Fh. 1117 Cftem643 So.2d 1112 (1~ I l)bt. ye stauding the critical issue is whether the trial court trial court incorrectly applied the law in this t~e hem-in~ observed the essenthl re--ts of the · ~u~ed ro hw in ~u]ing on the petition. [~-~] Stauding is p~dieated on a pm~s elfl~nt ex* [~] This e~se trams on the cerrec~ s_,~ieuo legitimate or su~cient interest at stake in t~e county ls~on and spplieation of the eommen hw the eontrove~y t~t wi]] be affected by the iug approv- doctrine of equitable estoppel, which is ex- outcome .of the Htigation. Sez premd~ incorporated in section IV_a-l~. of Jamllmn I~. Corp. ~. So, a Ma~co Rest- thereaiter 0rdimmce No. 90-31. This section uses lan- dencez, 544 SO2d 1080, 1082 ~ 2d DCA ertiorari in guage identical to the general definition of 1989); C-dp~ v. Swn Fi~t Nat7 Bank of i, the court the doctrine as applied by Florida courts to Or/ando, 427 SOld 815, 817 (Fla. 5th DCA certiorari, protect property owners who have relied 1983). In the context of an equitable estop- '~ded that Upon the actions of local zoning authorities, pel/vested rights case, it has been held that a k standing '$~ ~g, Ho/l~vcod Bmc/r Hote/C~ ~. C~ person with a "legally recognizable interest" ion. How* of Ho//~nwod, 329 SO2A 10 (F1~1976);, lure standing to bring an equitable estoppel ,ming offi- F~aflk//n Countlt v. Lebu~e ~ Ltd., action to enjoin enforcement of zoning ordi- ~, Petition- 430 So,Od 475 (Fla. 1st DCA), pst. ~ de- naness and that ownership of the property ~t f~ "be- n/~d, 440 SoYA 352 (FIa.1983); Toum of La~- constitutes such a "legally recognizable inter- uleveleped (Fh. 2d DCA 1975); ~ of ~ est." Jones ~. First Vi~Irinia Mtg. and Real e expendi- Lakes ~ Corn, 427 SoYA 239 (Fla. 4th DCA Estate In~. Tru~ 899 SoYA 1068 (Fla. 2d ~ DCA 1981). In regard to Pelham's standing, e on any i l!~3). The elements of equitable estoppel in the record confirms the hearing officer's find- (1) a property owners good faith reliance lng that Pelham "inffwidua~ nd/or through nplete the I (2) on some act or omission of the govern- substantial ownership interest, has retained ment* and ownership interests in the property st issue (3) a substantial change in position or the from October 1972 to the date of the final ~ the incurring of excessive obligations and ex- hearing in this proceeding." Az earlier not- ~r Florida penses so that it would be highly inequita- ed, at the time the vested rights application ,.090(cX3), hie ami u~ust, to destroy the right he was ~ed, Pelham and his wife jointly owned .nts to it.~ acquired. M1 of the stock in Equity Resources, Inc, the as lingted F~nklin Countlt ~. Leisu~ Propert~ Ltd., title holder of the property in question. ~ural due 430 SoYA at 479. Since Equity Resources acquired its interest he es.sen* from other Pelham controlled or owned enti- ~ and A. ties, it merely served az a successor entity lings and The ~ court did not initially address the through wh/ch the Pelhams confinu~] to hold :tent and elements of estoppel because it concluded an interest, albeit equitable in nature, in the ~v.,Ctr. c. that the hearing officer had incorrectly dis- ownership and development of the laud in the 108. In missed the 'county's argument that neither project. In short, Pelham's transfer of the tioa tha~ Pelham nor Equity Resources possesses property to Equity Resources from other ne ~finor standing to claim a vested right. On this entities owned or controlled by him did not that the point, the trial court ruled that Pelham does neeeesarfiy extinguish his interest in the ~ on not have standing beeatme he does not pres- property for purposes of his standing to seek s Thus. ently own the land. Although Equity Re- a determination of vested rights to continue souress does own the land, the trial court development of the property. ~r~lO~¢.~' ruled that it has no standing to assert an he sewer i~ ~gs; equitable estoppel claim based only on the [6] In any event, Equity Resources, az .ooo "[or acts of reliance shown by Pelham and other the current owner and developer of the prop- ser~ d~,. intervening entities in which Pelham held an erty in question, clearly has a sufficient inter the t~ interest. We agree with Petitioners that the est at stake, az well az a legally cognizable ~fion that b~,ed on fioner~' reliance on the: county'~ approval of their prove this portion of the planned development. h/s poin! expenditur~ of substantial sums of money to vested rights application pur~'--at to the or- under a contract contingent on rezonino :alter ~l~,ance. The trial court app Jy confused the county granted the rezoning con led tenes when he completed col the standing requirement with the substan- on the construction of a drainage system, cause of ~l_,intlfl's st&mtficant a ~ve dements of equitable estoppel when it Pelham clearly established su~cient acts of on the zoning). For these res erroneously ruled that Equity Resources did reYmnce. ,See HoI1Fwood Beach Hotel Co. r. court departed from the ess~ ' not have standing because it failed ~o prove Oity of Hollltwoo~ Franklin County v. Lei. ments of the law in r,.l~n~ th~ the essenthl dement of suffident acts of sue ~ Lt~t;' Board of Cou,:ty Equity. Rezouro~ hcked sta~ reYmnce. See, &g., Yon~ v. FirSt Virginia Comm'rs of M~tro~ Dade County v. Lut~ 314 Mtg. & Real Estate Inv. ~ 899 So.2d So.2d 815 (Fla. 3d DCA 1975). Furthermore, B. 1068 (holding that mortgage company, as it cannot be said, without exalting form over In addition to the stauding owner of the property, had a legally recog- substance, that Equity Resources cannot uti- the trial court denied cert nizable interest and therefore had standing lize or benefit from Pelham's acts of reliance ground that the henring office: to bring the equitable estoppel act/on, but because Equity Resources and Pelham are eluded that equitable estoppel none~eless failed to meet the substantive strangers to one another. The trial court's to the drcumstances of this elements of estoppel to demonstrate its own conclusion in this regard gives little signifi- .~ trial court and the hearing o indi'pendent r~li~.ce on the local govern- cance to the history of the project and the that Petitioners took too lonl ment's zoning action). Although the trial relationship between Equity Resources and the property and simply un~ court relied on a number of cases to support pelham Equity Resources is not an inde- business venture in expandin~ its legal ruling, none of these cases was pendent corporation, unrelated to Pelham, water franchise to include ti ~-- decided on the issue of standing as propound- that obtained its interest in the land as a portion of the property at the ed by the trial court. These cases; instead, stranger to the project. On the contrary, it developing Phase L No were decided on the bas/s that estoppel did is an entity that was created and controlled was given to the fact that E¢ not apply because the new owner or mort- ' by Pelham to hold the land and consummate gagee did not establish independent acta of the development initiated by Pelham. ~ incurred expeases of $900,00( of the project since 1987. ~ reliance or was otherwise a stranger to the In addition, the court's ruling underesti- court ruled that petitioners' i: transact/on from which the alleged estoppel mates Equity Resources' own independent pel ~hlm must fail because ' arose.* acts of r~llance, not only on the 1972 zoning dence they incurred expense: but on subsequent conduct by the county in the u~ portion of t' [7, 8] As far as Equity Resources' inde. granting development permits as well. cause the expenditures we~ pendent acts of reliance are concerned, it is These independent acts, which are discussed reliance on any promlae by true, as the tx/al court stated, that a trander- more fully in part II.C. of this opinion, in- because the [Petit/oners] wa ee of property has no standing to assert a clude installing the sewer facilities and ex- to complete the project." olalm of equitable estoppel al~ent the trans- panding water lines, building a road, and We agree with Petitioners feree's establishment of some independent receiving permits from the county for, and basis in law for this ruling act of reliance on a promise made by the completing construction of, Phase I of the government. C/ty of Tamarac v. Siegd, 399 project at a cost of more than $4,000,000, in [9-11] No law is cited So2d 1124 (Fla. 4th DCA 1981); Jones v. addition to the planned benefit of these facili- that the expenses inan-re~ First Virginia Mtg. & Real Estate Inv. ties to the property in Phase II and the must be aexclusively for · Trust. As we noted in Franklin County v. receiving of environmental and development port/on of the property," an Le/aure Propert/~ Ltd., a asuccessor in in- permits from the county for commencement reasons that would justify terest" must shew his own entitlement to the of construction of Phase II. Indeed, as the application of the rule. benefit of an estoppel and may not make hearing officer recognized, petitioners' out, where property has such a showing by merely plavah~in_~ proper- strongest argument in support of vesting is planned as one overall proj~ ry. 430 So2d at 480. However, as found by their reliance on the 1972 zoning coupled have upheld vested rights the hearing officer, the facts of this case with the county's issuance in 1989 of permits the entire project without shew that beth Pelham and Equity Re- authorizing Equity Resources to proceed costs incurred by the land~ sources have established their own entitle- with construction of Phase II. $~ e./~., end commencing construcq ment to re_-lionce on the' 1972 rezouing ~sub- Hough ~ Amat~ 212 So2d 662 (Fbi. 1st stantially beyond qnerely purehnsing proper- DCA 1968) (government estopped from : 7. bemq~Tl~ obeerv~iOnoffic~r.. 6miiugts no,that &. See Franklin Coumy v. Le/sur~ Propert/es, Ltd., So.2d 35~ (Fla. 1983); Calusa Golf. Inc. v. Dade not ~ indic~e 430 So.~d 475; City of Paddand ¥. ,Septimus, 425 County, 426 So.2d 1165 (Fla. ~d DCA 1953}. buildings would be loc-.a~d ~ So~2d 651 (Fla. 4th DCA). pet. mw. den/ed, 440 ; be built. For ~ of :S EQUITY RESOURCES, INC. v. COUNTY OF LEON l~ 1119 Clte~4~ 9o.~d 1112 (Fla. App~ 1Di~. 1994) ptu~ the property chsugL~ the zoning tn existenee at the time ~vely attributed to each and every part of ~t~t on rezoning after plaintiff bought the propert7 and ~ in exis- the overall project. ~ &p., Franklin the remning conditioned tonee when he completed construction be- Counter ~. Leisure Pmpert~ Ltd.; Bom,d of ~ of a drainage system, ~uzo of plaintiff's significant acts of rerumce Countp ¢omrn~ ~. Lut~ For ~ of · lished sufficient acts of on the zoning). For tlume reasons, the trial equitable estoppel, it is sufficient to demon- noood Beach Hotel Co. r. court departed from the easent~i ~ strate, as Petitioners did here, that a sub- Prmdd/~ C. ount~ v. Lei. ments of the law in ruling that Pelham and stantial and not a de mtnimie portion of the · /~;' Board of Cou,tty Equity Resonrees lacked standing, overall 'expenditures faeiTltatod and benefit- Dade C. ou~ t~. Lutz, 314 ted future phases of the pbmned projecL · T~,Hr/b*). Furthermore, B. [12--14] Furt~ we perceive no ithout exalting form over dry ~ cannot uti- In addition to the standing issue, however, compelling reason to 6u~ton a "reasonable Pelham's acts of reliance the trial court denied certiorari on the time to develop" rule for large scale develop- ~xn-ees and PeJham are ground that the hearing eericer correct//t eon- ment8 that would nat~ contemplate and rmther. The trial court's eluded that equitable e~oppel does not apply require a period of years to complete, ezpe- ~egard gives little siguifi- to the circumstances of this case. Both the ci~dly when the local government is ftdly 7 of the project and the trial court and the hearing officer reasoned informed of the 8cope of the development and m Equity Resources and that Petitioners took too long in developing has consistentiy and aystematicag7 granted ~menrcez is not an inde- the property and simply undertook a risky permita to continue the development. The ,n, unrelated to Pelham, business venture in expand~4~ the sewer and present case is one of ~ disclosure to the ntereet in the land as a water ~anchise to include the undeveloped county on the part of Petitioners.7 There is ,jeer. On the contrary, it portion of the property at the time they were no evidence that the county granted any of as erented and controlled developing Phase I. No significant weight the permits with restrictions on the length of the land and consummate was given to the fact that Equity Resources time the development could continue, and ~ted by p~Atmm. · incurred expenses of $900,000 on this portion there is no evidence that the development at eenrt's r.lt~* underesti-- of the project since 1987. Instead, the trial any t~e was abated or abandoned, either by ma*Cea' own independent court ruled that Petitioners' equitable estop- Pelham or by Equity Resources. The fact t only on the 1972 zoning mnduet by the county in dence they tnottrrod expenses ecc/ua/t~lt for for the unrestricted constn~ .: pro- neat permits as well. ehe ,u~iet~oped portion of the property, be- ject over a period of ;' :'e~~ :~owledge acta, which are discussed cause the e~penditures were not made in of expenditure8, for ~:~rove.mcnts to be made ILC. of this opinion, in- reliance on any promise by the county and for the benefit of the undeveloped sm well as ~ ~ewer facilities and ex- because the [Petitioners] waited far too long developed land is legally md~ctent to estab. m, building a. road, and to complete the project.* (Emphasis added.) llsh that it would be grosu~ unfair to allow the county to deny Pellmm and Equity Re- ~un the county for, and We agree with Petitioners that there is no sources a yes .t~cl right at the eleventh hour of ~n o~ 'Phase I of the basis in law for this rtding, their development of Plume II. ~ of more than $4,000,000, in [9--11] No law is cited for the proposition Gaineav///e ~. B/zho~ 174 8o~2cl 100 (Fla. ted benefit of these faeili- that the expenses incurred by Petitioners DCA), cerL d/zcha~e~ 181 So.2d 16~ (Fla. ,7 in Phase II and the must be "exelnsively for the undeveloped 1965); Hough v. Amat~ The doctrine of mental and development porttonof the property," and we perceive no equitable estoppe~js based fundamentally on ~y for commencement base IL Indeed, as the reasons that would justify such a restrictive "'rules of fair play." ro~ of Largo v. ~ngnizod, Petitioners' application of the rule. As Petitioners.point lr~p~/a/ Homes Corp, 309 So~2d 571, 573 in support of vesting is out, where property has been zoned and (Fla. 2d DCA 1975). As the court in that planned as one overall project, Florida courts case explained: ~e 1972 zoning coupled have upheld vested rights in the zoning for "Stripped of the legal jargon which law- uance in 1989 of pernuts the entire project without any showing that yers and judges have obfuscated it with, Rezom*ees to proceed cozta incurred by the landowner in planning the theory of estoppel amonnta to nothing f Phase IL Se~ e.g.. and commencing censtruction can be exelu- more than an application of the rules of 112 So.9,d tiff2 (Fla. 1st ~ e~opped from 7. ~ ob~watton [5 not inconsistent with the sufficient that Pelham readily revealed to the hearlng officer'~ finding that /n 1972 Pelhamdid Board of County Commbs/one~ his ~eneral : ¢~lusa Go/f, Inc. v. D,,de not ~4fic~lly indicate where the indiv/dual plans for development of the entire project over 1165 (Fla..td D~A 1983). ~ bulld/ng~ would be located ~nd how many would period of year~. ' be builL For purposes o[ this decizion, it was 1120 I~ 64' 'o~rl~l~ RI~PORm~R, 2d SERIES fair pisy. One par~w~aot be permitted Charles W. Littell and Elizabeth A. M. Kenney, J., granted to invite another onto a welcome mat and Dougherty, of Quaries & Brady, West Paln~ judgment r~ueving gran~ then be permitted to snatch the mat away Beach, for appelie~ Grantee appealed. The I to the detriment of the party induced or Appeal, Pariente, J., held permitted to stand thereon. A citizen is PER CURIAM. judgment should not have I entitled to rely on the assurances or ~om- AFFIRMED. fore answer was ~ed. mitments of a zoning authority and ff he Reversed and remaude does, the zoning authority is bound by its STEVENSON, J., and MICKLE, Polen, J., dissented wit representations, whether they be in the STEPHAN P., .a. zlz~iate Judge, concur. form of words or deeds .... Id, The U-iai court applied incorrect legal ANSTEAD, HARRY LEE, A~iate Judgment m=,186 principles in wli_~ on' the merito of the Judge, dissents with opinion. ?. Summary judgment s! estoppel claim and thereby departed from .iNSTEAD, HARRY LEE, Al~ociate tion for reformation of va the eszential requlrement~ of law. Judge, dissenting, remove one grantee's name; For.,the foregoing reasons, we grant the I would reverse and remand for reconsid- of deed conveying home ir petition for writ of certiorari and quash the trial court's final order. The cause is r~- eration, ff not a full rehearing, because the debt and grantors' act of trial court apparently mlsdnt~l, pl'~sed the grantee, and it was po~"ol~ manded to the trial court with directions to opinion in B~an v. Centu~l~ Nat'l Bank, 498 could pre,at a gen,~ine is; vacate the hearing officer's order and require So~l 868 (Fla. l~), to require prior court fact. the county to give further consideration to' approval for a wild persousl services con- Petitioners' application in a manner consis- tract entered into with, and for the benefit of, tent with this opinion, the ward of a voluntary property guardian- Jordan Fields of Fields & ship. Stuart, for appellant. MINER, J., and SMITH, LARRY G., Robert L, Ii,bride, Stuar Senior Judge, concur. PARIEN-TE, Judge. TI~ is an appeal of the ~ forming a warranty deed to r~ 2 for partial summary judgmeu ' Roger IL BURCH, Appellant, matlon count was granted, alt] Paul T. DOUGLAS, Appellant, v. to dismiss was pending and; yet to be filed. Because we v. William KIBLER and Ila Jane Kibler, his state with certainty that the The HARRIS TRUST COMPANY OF wife, Doris 1VL Beruardi, Paul W. Bet- might properly serve could nardi, James Kibler and unknown per- genuine issue of material fact, FLORIDA, az Guardian of Margaret son(s) routing and residing at 8173 S.E. eutry of the partial summar~ M. Anderson, Appellee. Carlton Street, Hobe Sound, Florida, Ap- prematurely granted. No. 93-1728. pellees. District Court of Appeal of Florida, No. 93-2019.. { bler's (plaintiffs) verified corn Fourth District. District Court of Appeal of Florida, ~ of ten counts. The complan.. detail the relationship betweer Sept. 9, 1994. Fourth District. .i and the defendant~ which Rehearing Denied Nov. 8, 1994. Sept. 9, 1994. oral agreement whereby the p Appeal from the Circuit Court for Palm Rehearing Denied Nov.' 8, 1994. forgive a substantial debt owe two of the defendants, Doris Beach County;, Vanghn J. Rudnick, Judge. Paul W. Bernerdi, in cousidc Freeman W. Berner, Jr., of Cronmell, Action w~ brought for reformation of Beruardis conveying full title Pfaffenbergor, Dshlmeier, Beruer & Gr!_'~in~ warranty deed to remove one grantee's 'to the plaintiffs. However, th~ North Palm Beach, for appellant, uame. Circuit Court, Martin County, Scott lege that in violation of the or 906 F2d at 889. As we read 'he terms of 1. Zoning and Plannin the contract, it does not pe carving a RESOLUTION TRUST CORPG. ,liON, Joint venture had disthction among the bonds according to the as Receiver for Broadview Federal S~v- tected property right in amount paid for e_~eh bend, regardleas of how ings Bank, and Sentinel Communities, development zenin~ fo~ equitable that approach may seen~n Inc, d/b/a Hidden Harbor Development years after issuance of fi Moreover, it strains the plain 'meaning of Company, Plaintiffs-Appellees, mits, though town subs~ enabling ordinance exph the contractual term "ratably" as used in the v. light of town's earlier b trust indenture to interpret it as "ratably to nance, its representatk the amount paid for the bond." Appellees' TOwN OF HIGHLAND BEACH, and ~oint' ' ventttre's acts contention that applying the same formula to Defendant-Appellant. Const. Amend. 14. each bondholder creates equ~. treatment Nos. 92-4462, 92-5097. proves too much. That position, if indeed 2. Constitutional Law valid, would hold f. or any formula and lose all , Reasonable expect~ meardn~g. Equal~treatment ~,oes not result United States Court of Appeals, ' status may attain con~ · , Eleventh Circuit. merely by applying the a~ne formula-any property status based u formula-to each :bondholder. Instead, the April 19, 1994. tion, policy, or mutuall.~ question "ratably to what" must be answered Lng governmental body within-l~-~f~ur corners of the contrac~ In interest may be implie~ this case, the i~st indenture calls for pro- ' duct. U~S.C-~ Const.- portienal payment accorai,~g to the amount 'Members of joint venture brought action due for principal and/or interest, without any 'against town, alleging denial of substantive 3. Municipal Corpora discrindnation or privilege_ A cost-basis pro- and procedural due process, Fi/th Amend- Under Florida lay portional disi2~ution cannot be reconciled ment taking, and estoppel based upon con- mission's interpretatior with the clear terms of the trust indenture, duct of town in reinterpreting er~i,~,,,,ce to in,~olves municipal pt " reflect earlier terrnirmtion of residential plan permissible exercise of Accordingly, we vacate the dis .trkt court's unit development for property than was pre- home rule powers em~ approval of the distn"oution plan and remand viousiy, represented. The United States Dis- stitution. West's F. for modification of the distn"outien plan in trier Court for the Southern District of Flori- § 2Co); West's F.S.A. the settlement agreement in accordance with da, No. 8~-8483-CIV-WJZ(J'M), Jacob Mish- 4. Federal Courts ~ this opinion, ler and WiJliam J. Zloch, SJ., rendered judg- Whether matter ! ment for joint venture and awarded attorney VACATED and REMANDED. fees. Town appealed. The Court of Ap- view depends upon n~ peals, Hatchett, Circuit Judge, held that~ (1) 5. Federal Courts ~ joint venture had constitutionally protected Fifth Amendme~ property interest in residential plan unit de- ment regulation constJ · velopment zoning; (2) town's actions gave for adjudication uule ~m~_~_~...~?~.2 rise to Fifth Amendment tsM,~g;, (3) joint respons~le for hnpler. ~ venture was denied procedural and substan- reached final decisior tire due process; (4) town was equitably of regulations to prop estopped f~om denying joint venture's vested owner must also estal: - rights to zoning; and (5) evidence supported dy adequately provide awards of a__nm_~,ges and attorney fees. final decision caus Amend. 5. 6. Federal Courts ¢ 11. In rejecting an equip/approach ~ u) the bomt wa~sacfions are voidable or illegal in any dis~ric~ court's ~pproach in this case, a California way. The usual nde is flm~ the buyer of a bond Town's decialon ~ appeals court recently echoed the Supreme or~in~ilarinstrumentofdeb~isa~leaztenfitlecl plan unit developmen pr-, note 8, when It stye& "l'he 'equiP/' argu- shoesthe buyer has steppea. There is nothing .m date originally repn mere is based in hrge part, ff not entirely, on the ~gge~ tha~ this rule does no~ apply m bondhold- final for joint vent~ no~ion ~ speculau~ who' .purc. h~ _~ munict- er~ who purchased bonds on the ~ecomtary mar- takings claim to b~ pal bonds at prlce~ le~ than their par lss~,p,~-e ket.' ~l/v'at7 Ba~c v. Superior Court, though joint venture value should no~ be allowed u) profit. 'l~nere is 14 Cal.App.4th 393, 411, 17 Cal. Rplr.2d 884, 895 ance for less intrusiv no showing or even an argamem that any of the (1993). RESOLUTION- TRUb~I' Uu~tr. v. · ~,,, Cite-, 18 ~ IS~ (11~. i~) 1. ~n~g ~d Pl~ning ~467 ~'s d~o~ ~ it ~ ~ ~at )~O~ON, Jolt ven~ ~ ~o~y P~ a~ ~nded ~ ~nvey ~ jolt ven~ F~ ~v- ~ p~ ~ght ~ ~iden~ p~ ~t ~t ~'s d~n ~ i~ offi~ fingl ~si- ~fl~, d~opment ~g for p~ for ~n ~o~ ~'s ~op~on of ~m~h~e p~ ~lopment y~ ~r ~ of ~t ~c~on ~r- d~o~ ~t ~ ~ on ~ ~ ~d ~H~ ~, ~o~h W~ ~b~enfly e!~im~ ~at ~'s a~o~ d~o~ ~ ~y ap~ e~b~g o~ce ~ on ~H~ &~ ~ wo~d ~ve ~n ~ffie. U~.C~ Co~ ~ht of ~'s ~H~ ~m~off of o~- ~end. 5. BEA~ ~, i~ ~pms~m~o~ W jolt ven~, ~t ~d jolt vent's ~ of ~. U~.C~ 7. F~ ~ ~13~ ~m~end. 14. ~ ~ m~ ~ m~ ~s, 2. ~n~tion~ ~w ~7(1) apply for ~ f~ ~ ~e ~, ~o~le ~fio~ ~d ~ dele w~t ~ m~ ~ ~, bdo~ ~ ~en~ent ~ s~ ~y a~ ~m~o~y p~ ~ ~ for a~u~fio~ U.S.C~ ~t. p~ ~ b~ u~n s~ hw, ~- ~end. 5. ~on, poH~, or mu~y ~H~t ~de~nd- ~g ~e~en~ ~y pu~ fo~, ~d ~ch 8. F~e~ ~ ~13~ ~t my ~ ~pH~ ~m wo~ or ~n- ~t~on du& U.S.C~ Co~end. 14. Jolt vent's due ~ ~s b~ ~e ~ ~e mom~t ~ ~k ~on d~ ~e 3. Municip~ Co~o~tions ~65 p~g it of t~ v~ ~t ~ ~dd~ F~ ~d- Und~ ~o~da hw, ~e ~ ~m- p~ ~t d~elop~t ~g for p~. u~n ~n- ~on's ~~on of i~ o~ o~ U~.C~ Co~en& 14. '~ P~ ~ible ~ of au~ofi~ ~d~ b~ 9. ~n~itutio~ ~w ~278(1) ~ ~ ~ home ~e ~ em~ ~ Flofi& ~n- ~ ~s due ~ ~h~ ~ ~ ~m~om W~'s F.S~ ~k ~ 8, ~o~ ~e mom~t ~en~ ~y ~~' ~ 2~); W~t's F~ ~ 1~.~I. ~ ~bi~ m~ ~d app~ ~t ~i- J~- ~ ~dg- 4. F~ Co~ ~12.1 ~ ~on ~ ~s pmk. 'U.S.C~ ~ a~ey ~ ma~ ~ fi~ for ju~ ~ Co~en& 1~ '~ of ~ ~ de~nds u~n ~ of cl~ ~. 10. F~e~ ~ ~, ~.1 ~ (1) 5. F~e~ Cou~ ~13~ ~ F~ ~O ~'~ for cl~ ~ ~ d~ ~ ~en~t ~ ~t ~v~- e~r ~ ~t m~ ~omble ~ j~s ve~ ment ~fion ~m~ ~g ~ not ~ ~ ~ve (3) j~t for a~on ~e~ g~en~ ~y 11. C~I Ri~ ~1~ ~_ ~s~le for ~pl~g ~om ~ To dele ~e~ ~ent ~ly ~&~ ~ de,on m~g appH~on ~on ~ola~ ~d~'s due p~ ~'s ~ of ~a~o~ m p~ at ~e; p~ ~ ~n~ of ~ 1~, ~ m~t de~- ~p~ ~ m~t ~o es~h ~t no s~ ~ ~e whe~ ~on dep~ ~d~ of f~. dy ~d~ly pro~d~ ~ ~ ~ ~at com~mfio~y ~ ~ ~d ~ d~ion ca~es. U~.C~ ~ ~er ~t d~afion ~ ~out ~end. 5. pm~g su~e or p~ due p~ ~ m ~y 6. Fede~ Co~ ~13~ ce~ ~ U~.C~ ~ 1~; U.S.C~ Co~k of a ~nd ~figed To~'s d~on not ~ ~nd ~d~ ~end. 14. ~m wh~ p~ ~t d~elopment ~g for pm~ ~ 12. Co~itution~ ~w ~1.6 ~.~gto da~ o~y ~p~n~ ~ ~&enUy ~IA- ~ for jolt vent's ~ ~ent ~~ due ~ ~ ~ c~. ~ ~ ~ ~ ~ f~ a~Uom q~ noU~ ~d op~ m ~ h~ at s~, s~ ~ough jolt ven~ ~d not a~ly for v~- m~ ~e ~d ~ m~ ~. ~ for 1~ ~s~e ~e ~d ~d not ap~ U~.C~ ~~& 14. 13. Constitutional Law ~=,2782(2) became completely unuseable, and town of district court, and reviewing Zoning and Planning ~=~467 thereafter down zoned property, severely disturb district court's exercise Joint venture's procedural due process limiting its economic value. U.S.C,a_ Const. absent clear showing that rights were violated when town reinterpreted Amend. 5. abused its discretion. ord~o~ce to terminate residential plan unit 17. Eminent Domain ~=~2(12) 22. Eminent Domain ~=,223 development zoning for property on earlier Application of general zoning law to Rather than concluding date than was previously represented, where specified piece of property effects Fifth awarded far temporary taking it failed to provide joint venture with notice Amendment taking if it denies owner of eco- ture's property were excessive, of meetings which resulted in reinterpreta- nomically viable use of property;, whether properly reconciled jury's verd tion of ordinance and failed to notify joint state action denies landowner of all or sub- introduced at trial, and effe venture of meeting at which planning board stantially all economically viable use of his intent in awarding d_~-ges, voted to declare residential plan unit devel- property turns on economic impact on owner all ciro_~mstances surrounding opment zoning at an end. U.S.C.A. Const. and extent to which regulation interferes manner in which jury corn Amend. 14. with investment-backed expectations. : form, forepersen's report on 14. Constitutiun'a~ Law ~=278(1.1) U.S.C.A. ConstAmend. 5. lng jury instruciions, and ur Deprivation of property interest rises to 18. Zoning and Planning ~='467 mony of joint venture's exp, level of substantive due process violation ff Florida gardmg damages. Under law, town equitably done fo~L_im., proper motives and achieved estopped from denying joint venture's vested 23. Eminent Domain ~=12~ cious, and lacking any rational basis, zoning for property, in light of town's repre- tory taking of property to be U~.CA. Const. Amend. 14. eentations regarding termination date of such minim project were prop 15. Constitutional Law ~='278.2(1) zo,i,K and joint venture's good faith reliance though joint venture's exper Zoning and Planning ~=,467 upon those representations, sensble rate of return on Town acted in arbitrary and capricious 19. Zoning and Planning ~ of property upon res~e, rat from "as-built" rental. manner, depriving joint venture of substan- Injunctive relief granted to joint van- the due process, when it reinterpreted ardi- tm'e, ns result of determination that town 24. Eminent Domain nance to provide for earlier termination of was equitably estopped from denying joint In awarding damages residential plan unit development zoning venture's vested rights to residential plan permanent takings, district than was previously represented, where town unit development zoning for property, prop- tirely within its discretion i knew that joint venture was rdying upon erly included directive that town grant all award on pro rata basis mutual understanding with town and comm/t~ reasonable plan modifications, consistent actual period of taking. ted substantial funds to develop property, with purposes of residential plan unit devel- 25. Federal Civil Preced~ town's own a~torney warned town corem/s- opment; such injunction did not rob town of sion about ropercu~ious of it~ ~ ac- its leg/shthe prerogatives. Challenge to instructi tious, town took extended period of time to determine whether ins~ rezone property, and town refused to accept 20. Zoning and Planning ~=762 fairly and adequately applications for rehsuanee of previous per- Under Florida law, municipality is equi~ correctly stated law. mits despite previous promise that such per- tably estopped from exercj'_~i_~g its zoning mite were forthcoming. U.S.C.A- Censt. power when property owner, relying in good 26. Federal Courts ~ Amend. 14. faith upon act.ar o~!~ion of government, h~ Reversal will not be made substantial change in position- or in- jury instruction~ unies~ it 16. Eminent Domain ~=,2(12) cuffed some extensive obligations and ex- error. provide for earlier termination of reddential just to destroy rights owner acquired; doc- Any error in challenf plan unit development zoning than was previ- trine /s grounded on fairness and common concerned questions of ously represented effected ~ Amendment sense, harmless, where jury ac~ taking of property by depriving joint venture of economically viable use of property, in that 21. Federal Courts ~814.1 capacity on those issues property lapzed into period of "no zoning" Injunction ~=~1 28. Federal Courts after residential plan unit development zon- Granting injunctive relief, like other eq- Town was not prejt lng was terminated, during which property uitable remedies, falls within broad discretion on municipal liability t ,le, and town of district court, and reviewing court win not jury to find that person purportedly acm~ ~'Oy, severely disturb district court's exercise of discretion for town po~essed final policy making au- J,2.C.A. Coast. absent clear showing tlmt district court thority before it imposed § 1983 liability, be- abused its discretion, cause substantial evidence supported finding of delegation of authority to mayor to write ~) 22. Eminent Domain ~=,223 letter and to planning board to make deter- zoning law to Rather than concluding that damages ruination of completion date of residen~d effects FitCh awarded for temporary taldng of joint yen- planning and development zoning for its fac- erty; whether properly reconciled jury's verdict to evidence of all or sub- introduced st trial, and effectuated jury's 29. Stipulations ~=,14(10) hie use of his intent in awarding damages, by considering Claire that joint venture did not qualify ~p~ct on owner all circumstances surrounding trial, including as "p~g party, other than the United ~on interferes manner in which jury completed verdict States" e~titled to attorney fees under expecta~ons, fbrm, foreperson's report on verdict, confus- § 1988, because of status of Resolution Trust ing jury instruc~ons, and unrebutted testi- Corporation (RTC) ss receiver of financial .467 mony of joint venture's expert witness re- institution with interest in joint venture, was equitably garding damages, would not be reached on appeal, where appel- ,nture's vested 23. Eminent Domain ~126(1), 143 lant had expressly conceded that joint yen- : development Damages awarded for temporary regula- ture was prevailing party during trial on · town's repre- tory taking of property to be used for condo- attorney fees. 42 U.S.C~ § 1988. ,n date of such minium project were properly calculated, 30. Eminent Domain ~=,265(3) i faith reliance though joint venture's expert calculated rea- Federal Civil Procedure ~=,2737.5 sonable rate of return on diminution in value ~8 of property upon regale, rather than income Over 12,000 hours expended by joint to joint yen- from 'as-bm]t" rental venture's attorney~ in pursuing takings and due process o~-i~s against town, for town[s on that town 24. Eminent Domain ~,124 termination of residential plan unit develop- de~ying joint In awarding damages for temporary and ment zoning for property, were reasonable, ~ident/a~ ph~n permanent takings, district court acted eh- considering exceptional complexity and intri- ~0erty, prop- tirely within its discretion in reducing jury's cacy of ca~ length and extent of ~tigatio~ ,wn grant all award on pro rata basis to correspond to and inherent scheduling difficulties of case. ~, consistent actual per~od of taking. U.S.C-~ Const~nenda 5, 14. ,~ u~tt devel- t rob town of 25. Federal Civil Procedure ~=,2182.1 3L Federal Courts ~=,830 Challenge to instruction is reviewed to District court's award of attorney fees is determine whether instruction, ss whole, reviewed for abuse of discre~on. '~2 fairly and adequately addressed issue, and g its zoning Patrice A. Talisman, Sam Daniels, Paul, {ying in good 26. Federal Courts ~08.1 Landy, Beiley & Harper, PA., .Miami, FL, ernment, has Reversal will not be based on improper George P. Roberts, J~, Roberts & Reynolds, .sit, on. or in- jury instruction, unless it caused prejudicial West Palm Beach, FL, Defendant-Appellant OhS and ex- e~'ror, in No. 92-4462. quired; doc- 27. Federal Courts ~908.1 John C. Dotterrer, W'mthrop, Stimsom md common Any error in challenged instructions that Putnam & Roberts, Palm Beach, FL, Marga- concerned questions of law for court was ret L. Cooper, Jones, Foster, Johnston & harmless, where jury acted only in advisory Stubbs, P.A., W. Palm Beach, FL, Randee S. capacity on those issues. Schatz, Palm Beach, FL, for plaintiffs-appel- ' 28. Federal Courts ~,908.1 lees in Bio. 92-4462. ke other eq~ Town was not prejudiced by instruction Sam Daniels, Patrice A. Tslisman, Paul, ~d discretion on murdcip~l liability that did not require Landy, Beiley & Harper, P~,, Miami, FL, ' 1540 18 FEDERAL REPORTER, 3d SERIES RESOLUTION TRUE Ci George R. Roberts, Sr., Roberts & Reynolds, A. That the approval of the RPUD's in Harbor contracted to purchase 1 West Palm Beach, FL, for defendant-appel- such ordinance/s) are effective for ape- the RPUD.s The Town issued il lant in No. 92-5097. riod of one (1) year from the effective struction permits on August 8, John C. Dotterrer, Michael J. Kennedy, date of this ordinance, in the event that On October 7, 1980, the To~ V~mthrop, Sthnson, Putnam & Robert, Palm one or more building permits have been Ordinance 389, approving the Beach, FL, l~rgaret L. Cooper, Jones, Fos- applied for ... within the aforemen- RPUD, renamed as "Hidden Ha ter, Johnston & Stubbs, PA., West Palm t/onod one (1) year period in order to After approving the redesigned Beach, FL, for plaint/ff~appellc~ in No. 92- conunenee construct/en on one or more Commission met and discussed 5097. buildings of the said. RPUD develop- tion date of the development at ment~ then the aforementioned applica- :' meeting on October 28, 1980. A Appeals from the United States '~ori~ ble RPUD shall remain in fun force and ing, the Commission interpreted Court for the Southern District of effect. Provided, however, that in any 282 as requiring completion of Rt event building permits shall be applied in ten years of the issuance Before HATCHFA~ and EDMONDSON, for all buildings included within the building permit and determine~ Circuit Judges, and FRIEDMAN *, Senior RPUD approval and all such buildings RPUD expired on August 8, 1990 Circuit Judge. shall be completed within ten (10) years granted the first construction per HATCH~ETT;.Circult Judge: of ~e effective date of this ordinance, gust 8, 1980. - .... On the advice of the town's at .... "~n' this case, we affirm the district court's 4. · The Town of Higidand Beach must Commission directed Mayor Lewfi grant of h0unctive relief and a jury verdict grant an extension of time period allotted to inform the joint venture of t~ for &=re%ecs ~,ainst a municlpanty that ~t- wit, Mn which applicat/on for permit must completion date, "for the recon tempted to deny to a r~__~dential property be made UpOn applicat/on by a property letter dated October 30, Mayor developer property interest that vested due owner if that property owner presents evi- firmed the completion date. to the municipality's earlier sot/vltie~ dence to the town commission that he has incmrod delay in the securing of necessary As you know, Ordinance No. 3 FACTS governmental approvals in accordance with proved m~unimously on Oetobm In 1969 and 1970, Paul and Cram% Heft- the RPUD which the Town grante& at the Meeting of the Town C m~ acquired appro~n_~ 24~ acres of .... At that Meeting, we discussed land extending from the Atlantic Ocean to B. In any event application(s) for per- ty of working out a completi, the intracoastal waterway in the town of mit(s) from the Town of Highland Beach conform with requirements Highland Beach, Florida (the Town). In' must be made within the time period Ordinance No. 282. 1974, to permit development of the property, allotted in paragraph 3(A) of this ordi- Inasmuch as a permit was the Town Cornmi~-~!on (Conrmission) adopted narco or within sixty days of the receipt start of construction for your zoning ordnance 228 approving residential of'the perl~ license, or similm, docu- feel that the time clock plan unit development (RPUD-ID, consisting mentary approval from each and every Therefore it is our conclusion th of 846 units on the Hotr~n~n's property.~ On app~ble governmental agency, which- ject under RPUD-2 should be July 1, 1975, the Town passed Orfli_'~mce 282, ever is later .... by August 8, 1990. [Emphasis i which amended ordinance 228 and provided: In January, 1980, the Hoffn~ans, through Mayor Horton sent copies of this 1, Z Any real property zoned or ~ Hidden Harbor Associates, formed a joint Town manager and the Wwn at~ as ... RPUD-2 ... at the time of pasasge venture with Sentinel Communities, Ina, and made a report of doing so to the of this orrl!n~-ce shall continue to be so Zaremba Harbor Company to construct the at its next meeting. Relying upon ~ed for a minimum period of one (1) RPUD--II (joint venture).~ After forming pretation, which became the Toy year from the effective date of the ordi- the joint venture, Hidden Harbor redesigned philosophy, the joint venture inv nsnce, the RPUD, reducing its density from 846 to :~. The Hofhnans withdrew from thc j 3. Ordinance No. 228 end No. 247 are 620 units, and applied for approval of the upon conveying their interests. Bro amended to provide: new desigm On January 17, 1980, Hidden eral savings Bank (Broadview) loan venture $4.6 million and acquired · Honorable Daniel M. Friedman, Senior U.S. Cir- 2. The Hol~asns entered the joint venture under Sentinel. Eventually. on August cult Judge for the Feder~ Circuit, siniug by the auspices of Hidden Harbor Associates. acor- Broadview dso acquired ~hc larer~ designatiom poration which they controlled, in Hidden Harbor through a loan I. 'Ihe disuict court concluded that as a matter of law the Town Commission is the highest policy- 4. At the .~uly 5, 1983. meeling, lhe _m~kln_g body of the wwn o£ Highl~nel Beach. [lied a written request for a tempo~ RESOLUTION TRUST CORP. v. TOWN OF HIGHLAND BEACH 1541 , Citers 18 F~d 15~ (ilthgtr. 1~4) ~e RPUD's in } Harbor contracted to purchase 1~.5 acres of $~,000,000 to prepare the site and begin con- ~ for ape- the RPUD.~ The Town issued its first con- structio~ the effective struetion permits on August 8, 1980. In 1982, a Town Bulletin informed the he event that dts have been On October 7, 1980, the Town adopted rel~-cl voters that the completion date 12 &foremen- Ordinance 389, approving the redesigned for the RPUD-II was August 8, 1990. La- t in order to RPUD, renamed as UHidden Harbor Club." ter, during a Commission workshop on July After approving the redesigned RPUD, the 5, 1983, the Town reaffirmed the 1990 com- ~ or nloFe 'UD develop- Commission met and discussed the comple- pletion date and assured the joint venture ioned appllcs- tion date of the development at a workshop that the bufldin~ permits could lapse tempo- full force and meeting on October 28, 1980. At the meet- rarily and be reissued.4 ing, the Commission interpreted Ordinance At its meeting on January 31, 1984, the · , that in any all be applied 282 as requiring completion of RPUD's with- Commission directed the town attorney to d within the in ten years of the issuance of the first submit a draft of an. o~-nce explicitly ~uch bufldin~ building permit and determined that the amending Ordimmce 282 to reflect the 1990 RPUD expired on August 8, 1990, because it completion date, which he did in February. ten (I0) years ' granted the first construction permit on Au- During a meeting on March 27, however, the I~lst 8, 1980. Commission debated the correct completion Beach must On the advice of the town's atWrney, the date of the RPUD. In response to queries ~eiod allotted ~ Commiesiondirected Mayor Lewis Y. Horton from the Co~nmission, the t~wn attorney · permit must to inform the joint venture of the RPI~'s stated: O' · property completion date, ~for the record." In his I assume, that the/efler that ~ reorived c presents evi- letter dated October I~0, Mayor Horten con- from th~ tow~/s ia fu/2 foroz and ~'zct m that he has firmed the completion date. ~ be r~/~ag on flat. If we are now reviewing the situation, I think s letter to g of ~ As you know, Ordinance No. ~ was ap- that effect from the town ought lo be sent ~xlane~ with proved unanimously on October 7th, li~0, grantecL at the Meeting of the Town Commisaior~ saying, you know, this whole topk is being renewed'. '.. but, I do think that the prop- At that Meeting, we discussed the necesai~ erty owners have got to be notified that io~s) for per- ty of working out a completion date to the town is reviewing the whole aituatior~ ]ghland Beach conform with requirements set forth in [Emphasis added.] e time period Ordinance No. 282. Later, when the Commission appeared to ) of this ordi- Inasmuch as a permit was issued for the reverse itself as to the correct completion of the receipt start of eonstamctlon for your project, we (late of the RPUD: similar docu- feel that the time clock has star~. Well, eert~ly ff ... the town's position ~h and every Therefore it is our conclusion that the pro- has changed as to the expiration date of geney, which- ject under RPUD--2 should be completezl the RPUD's and an opt!n_~mce is necessary by August 8, 1990. [Emphasis in original.] ... I think we ought to got cracking on it. ~ through Mayor Horten sent copies of this letter to the I would anticipate we're going to get law- rmed a joint Town m~n~oer and the town attorney and suits out of both people anyhow on this ties, Inc, and made a report of doing so to the Conunission thing. Having led them down the prim- construct the at its next meeting. Relying upon this inter- rose path for .awhile, they're going to be t'ter fonuing pretation, which became the Town's official trying to get some equity out of this thing ~r redesigned philosophy, the joint venture invested over and ff we try to tell them they've got a , from 846 to ~ of the ~. The Hoffmans withdrew from the joint venture sion which confirmed the mutusl understanding upon conveying their interests. Broadview Fed- of the 1990 compli~ion d~t~. During the meet. [980, Hidden er~l $~vings Bank (Bro~dview) loaned the joint lng, s discussion ensued corw~rning whether the venture $4.6 million and acquired the stock of Town should red, tm ~t 1990 completion wnture under Sonltnel. Evontuslly. on August 30, 1985, with ~ "cle~n~up" ordinance "for the record." ~x~tes. · cor- Broadview also acquired the larembs interests However, repres~ntstives of both the town and in Hidde~ Harbor ~rough · loan workout, the joint ventur~ expres~d their mutual under- 4. At the July 5, 1983. meeting, the joint venlure standing that the RPUD expired in 1990. tl~ed ~ written rec~uest for a temporary suspen- '~"~' ?""" RESOLUTION ' lil4Z '18 [,...~ERAL REPORTER, IM SERIES year and a half to complete, they're going IT]he question of the RPUD zov~g time ty of only eight units per to be jumping all over the place, frame is in controversy at the present 22, 1990, the Town Commiss Because of this conflict, the Commission rot. time. I am enclosing a copy of the Town nance 596. further downzor ed unanimously to refer the question to the of Highland Beach Planning Board memo- per acre, a density eighty Planning Board for a 'determination and rec- randum of December 19, 1984, which dis- it had approved for the RI ommendation,' during its May2, 1984 meet- cusses this issue and gives the opinion ing.~ memorandum which states as fonows: ~ne PROCEDURAL Thereafter, the Plamgng Board and the phuming board finds no evidence that the Commission held a series of meetings on the build-out date has been extended beyond The joint venture filed RPUD without notifying the joint venture. July, 1985.' but the Town removed tl ~,. United States District Cou During these meetings, the town attorney The town attorney attached a copy of the ern District of Florida On advised the Town of pote~l legal conse- Board's resolution to the letter which further joint venture filed an an' quences associated with chan~ng the .corn- provided: seekin~ (1) injunctive reli pletion date and suggested that doing so ran Ordinance Bio. 282, adopted July 1, 1975, RPUD, under the theory afoul of basic principles of equity and fair play. Specifically he warned: specified that 'in any event building per- pel, and (2) temporary mits shall be applied for all buildings in- condemnation under the ] [I]f this'~gees to court, they're going to eluded within the RPUD approval and all and deprivation of argue equitable estoppel and I wouldn't - such bu~aln_o~ shall be completed within U.S.C. § 198~. Alternativ. . ten (10) years of the effective date of this tare requested temporam. [that] people at the time they did them ora!~,~ce.' This gives rise to a question damages if unsuccessful -~th0iight they had good reasons for it (sic). as to whether any ordinance will be in RPUD. -" People On the boards at the time they did, effect in the property after July 1, 1985. thought they had good reasons. Okay ... The Town answered, de' you're time frame is remove& You are a Finely, the resolution stat~: 'It is the con- allegations of the complain different set of p~ple..You don't neces- clusion of the board that the previous zoning the issues were not ripe sarfly think what they did was right but has, or is, expiring and that any permits in because the joint venture you Ought to .go back and see why they did the future should be issued only under the tensions or submit final it at the time they did it. And, at the time existing zoning code." At trial, before the part that action was taken in 1980, they had Upon receiving the Town's letter, the joint evidence, the district court presented certain evidence which indicated v~nture appeared before the Planning Board of law, that the joint w they had, or at least evidence that con- and Town Commission repeatedly, arguing vested property right to vinced the co~mi~ion at the time they had against the new interpretation of ora!nonce until August 8, 1990, ba~ been delayed in getting their permits, and its accompanying expiration date~ The October 30, 1980, letter.~ And, that's my reconection of hew that Town rebuffed all such attempts, and in one evidence, the jury, sitting came about, instance, during a Town Commission meet- and advisory panel, rettu Concurring in this assessment, Town M~n~- ing, the town attorney informed representa- vor of the joint venture er Elaine Roberts reraln_ded the Board that tires of the joint venture that based on the jury's special verdict pr, the 1990 completion date had been promul- T°wn Commlsm'on's reinterpretation of the follows: gated in accord with the ~phflesophy~ of the orain~ee, the RPUD expired on July 1, Commission when it approved the RPUD in 1985, and this was the Town's final decision. II. 1980. The Town further informed the joint venture 6. The fair market Disregarding such concerns, on December that the RPUD project was "dead,~ that the ty on July 1, 198~, IP~ 1984, the P!_~nnin~ Board det~mined th~ Town was utired of ai~orneys saying they lng the completion date of the RPUD was ,~uly 1, have an extension of an RPU~f and "It]he 1985. The Board p~esed a resohltion ix) th~s lx)wn commutation vo~d five tx) zero ti~t the ?. The fair rnm-ket effect, which it sent to the Commission. At RPUD expired ~uly, ll~.~ The joint yen- W on ~ulY 1, 198~, the direction of the Colnmis$_ion the town ture failed to complete the construction by zoning attorney notified the joint venture of the July, 1985. In 1987, the Town changed the change in the completion date, in a letter land use designation of the property, rezen- dated January 30, 1965. ing it residentia~ thereby permitting a densi- ~. Pursuant ~o this concl~ insumca~ ~he jury: "rhi ~. The record re£ers to the p!smnlng Board as we will refer ~o it exclusively as the Planning law decided ~hat these both a commission and ~ board. For simplicity, Board. properVy right in RESOLUTION TRUST CORP. v. TOWN OF HI(]HLAND BE, ACH 1543 Clm~s 18 F.3d 1S36 (lld~Ch*. 1994) JI) zoning ~me ty of only eight units per acre. On August 8. The loss of use of the subject prop- at the present 22, 1990, the Town Co~mi~s~on adopted ordi- erty between July I, 1985, and Novem- ~py of the Town nance 596- further downzoning to six units be' 17, 1987, based on the market rate g Board memo- per acre, a density eighty percent l~wer than of return on the value of the plainiJffs' ~994, which dis- it had approved for the RPUD in 1980. equity in the property is $15,000-,000. ,es the opinion 9. The loss of use of the subject prop- a8 follows: ~Phe pROCEDURAL HISTORY erty in adopting Ordinance 557 reducing ~lenee that the the density from about 25 units per acre ~tended beyond The joint venture filed suit in state court, to 8 units per acre between lqovember but the Town removed the action to the 17, 1987, and Augast 26, 1990~ is a copy of the United States District Court for the South- $14~450~.000. ).r which further e~n Distrk't of Florida On July 25, 1988, the 10. The loss of use of the subject prop- joint venture fled an amended complaint erty in adopl~g Ordinance 596, further d July 1, 1975, see~. (I) injunctive relief reinstating the reducing the density to 6 units per acre, RPUD, under the theory of equitable estop- between August 26, 1990, and the pres- ~t building per- pel, and (2) temporary damages for inverse ent time is $# 9 14~450~000 plus # 10 ~1 buflct~3gs in .... condemnation under the Fifth Amendment 1,700,000-- 16,150,000. ~pproval and all ~mpleted wffh/n and deprivation of civil rights under 42 The district court granted partial remittitur ire date of this U.S,C. § 1983, Alternatively, the joint yen- of the jury award concluding that the eri- e to a question tare requested temporary and permanent dence did not support the juffs response. race will be in dammges if unsuccessful in reinstating the The court ordered the joint venture to recov- · July 1, 1985. RPUD. er only $14,470,659 for the temporary taking, The Town answered, denyi~ the material and retained jurisdiction to enter judgment "It is the eon- previous zoning allegations of the complaint and alleging that for a permanent taking of $15,000,000 in lieu flay permi~/n the issues were not ripe for determination of the injunctive relieL onl~ under the because the joint venture failed to seek ex- The Town moved for judgment notwith. tensions or submit final development plans, standing the verdict or a new trial Initially, letter, the joint At trial, before the parties introduced any the district court granted a new trial on Planning Board evidence, the district court ruled, as a matter damages, concluding the jury's damage ~tedly, arguing of law, that the joint venture possessed a award was excessive and that the jury had ,n of omiimince vested proper~y right to the RPUD zoning misunderstood the expert testimony. Later, ion data The until August 8, 1990, based on the mayor's the district court withdrew its order upon ~s, and in one October ~0, 1980, letter? After hearing the determining that the jury intended to award Lmis~on meet- evidence, the jury, s~t~ng as both fact-finder only $16,150,000 in ,temporary damages, and ed representa- and advisory panel, returned verdicts in fa- $15,000,000 in permanent damages, and not ~ based on the vor of the joint venture on an claims. The $31,150,000 in temporary damagea Follow- station of the jury's special verdict provided damages as lng trial, the joint venture filed a motion for $1,792,093,25 in attorney's fees as & prevail. d on July 1, follows: ing party. After a hearing, the district court final decisiom II. Damages awarded the joint veng. u'e attorney's fees. ~ Joint venture 6. The fair market value of the proper- The Town appeals from both judgments. · td," that the ty on July 1, 1985, with the RPUD zon- saying they ing p~'%.~__n~; .;or '2'.~ ~._~.~..;!~cn by .A;~ CONTENTIONS OF THE PARTIES )," and ~[t]he l~mt-gr4990, was $I7,000,000. The Town contends that no legal basis zero that the 7. The fair market value of the proper- exists for the joint venture's claims because he joint yen- mtruct~on by ty on July 1, 1985, without the RPUD the RPUD expired July 1, 1985. The Town changed the zoning ;.~m~.-.'~_.~.7, for *_~.c ~;o~on by contends that the district court committed 2erW, rezon- __~ ..... .was $2~000;000. error in ruling that the joint venture had a ~ ~ ~ 6. Purmlant ~ this conclusion. ~he discric~ court rig~l~ to complete the project under the appr~f instructed the jury: "This court as a matter of plans under general zoning ordinance ~89 ~. the Planning law deeded that these plaintiffs had a vested August 8. 1990. You must accept that finding property right in the RPUD. which included a and proceed [rom there." .. 1544 18 FI~DERAL REPORTER, 3d SERIES t~r~o~, vested right in RPUD z0nin~ -..dl 1990, and DISCUSSION Rp~r. 386, 553 P~?~I 54~ vested right where dew thus, it was eniitled to a directed verdict. I. VESTED RIGHTS The Town also contends that because the : stantial work and incu~, joint venture did not request an extension [1] The Town contends that the court on good faith reliance and never submitted a new-development, committed legal error because Ordinance cert. deft/ed, 429 U.S. 1( plan, the const/tu//onal issues involved are 282, which mandated 'RPUD zoni,~ to exp/re L.Ed2d 529 (1977). not ripe for review; Further, the Town con- on July 1, 1985, was never amended to ex- While we recognize tends that insuffident evidence exists in the tend the complet/on date, as Florida law erty right in possess/o~ record to support the ~,~ges and injunctive requ/res. Thus, the Town argues that the mit, we have consistent relief el~Jm~. The Town also contends that mayor's 1980 letter, extending the completion interests and vested r/ the distr/ct court improperly instructed the date to August 8, 1990, did not mod/fy or zoning and permit app jury on ma~or issues at ~ Fi,~lly, the amend the 1975 ordinance. This determina- 877 F2d at 894; Whee/ Town contends that the joint venture is not t/on is .a quest/on of law that we review de, C,~ove, S96 F2~I 134'/, entitled to attorney's fees ~! that even ff it novo. MacKenzie v. C/ty of Rock/e~ 920 ' (vested rights in phn is the district court's award was excessive. F2d 1554, 1559 (llth Cir.1991). permits); A-4. P~ofi/e., The joint venture contends that the facts [2] Property interests are Laudgtda/e, 850 F2~I support the district court's x~linE on vested not created by the Consi/tut/om Rather, (vested rights in zon~ _ri~._~_and that. Florida law creates a'protect- they are created and the/r dimensions are U,~. 1020, 109 S.Ct. 1 .... " ed property right in zoning and pernu'ta defined bY exis~g rules or understand- (1989). The' joint venture contends that the Town~ .tngs ti/at stem from an independent source Applying these pr~ v/olated its procedural due process r/ghts such as state law--rules or understanding this case, we conclude when it failed to provide notice and a fair that secure certain benefits and that sup- pretat/on of Ordinanc. hearing when it changed the expiration date port claims of entitlement to those bene- tions to the joint vent~ of the RPUD. It also contends that the fits. ture's acts of reli~mce Town's act/ons amounted to a t~ldnE, violat- Board of Regents v. Roth, 408 U.S. 564, 577, expectation r/~ to lng its substant/ve due process right~ Fur- 92 S.Ct. 2701, 2709, 33 L.Ed2.d 548 (1972); right. Thus, the d~ ther, the joint venture contends that the Paul v. Davi~ 424 U~. 693, 709, 96 S. Ct~ ruled that the joint cons//tut/onal issues are r/pe for review..1155, 1164, 47 L.Ed2d 405 (1976); Mar/n~ had a vested right The joint venture also contends that the jury One, Ina ~. Manate~ County, 877 F2~l 892, the subject propert? instruct/ohs were in accord with the law, the 894 (llth Cir.1989). For actions brought ordinance 282 classi unrebutted testimony supports the jury's under the Fourteenth Amendment, the Su- resident/al plan damages award, and the evidence and law preme Court has defined a property interest fled and confirme~ support the court's attorney's fees award, as a "legitimate a!nim of entitlement." Perry 3~9 grant/ng the ~ ' ~ v. $i,~Ierrna,~, 408 U~2. 593, 602, 92 $.Ct~ property for const ISSUES 2694, 2700, 33 L.Ed2.d 570 (1972); Roth, 408 accordance with U~. at 577, 92 S. Ct~ at 2709. In th/s sense, fixing the ~/rae of On this appeal we must dec/de the follow- such "'property' interests ... are not ]infited 1990. lng issues: (1) whether the district court by a few rigid, technical forms. Rather, The undisputed fact~ erred in deter~inlnE that the joint venture 'property' denotes a broad range of interests this conclus/or~ maint, a/ned a vested right or.a protected that are secured by 'existing rules or under- On July 1, 1975 property interest/n the RPUD zon/n~ until stand/n~', Peer//, 408 U.S. at 601, 92 S.Ct. nance 282, which pr 1990; (2) whether the joint venture's cons//- at 2699; Roth, 408 U.S. at 57'/, 92 S.Ct. at under the RPUD m tutional ~l~im, were ripe for ~ (3) 2709. Thus, reasonable expectat/ons in a ten years of the ordi whether sufficient evidence exists to support particular status may attain protected prop- "within 60 days of the jury's finding on li~b/li~ and ~-r-=~es; ertl, status based upon a state law, regula- from each and every (4) whether suiffdent evidence exists to sup- i/on, policy, or a mutually explicit under- agency, tok/chewr port the district court's award of injunct/ve standing a governmental body puts forth, Beth; Fla., Ordirm relief; (5)whether the district court properly and such an interest may be implied from added). Any ambi /nstructed the jury as to the apP~_~_ble law;, words or conduct. Per~t, 408 U~. at 601, language was clarffi and (6) whether attorney's fees were war- 602-03, 92 S.Ct~ at 2700-2701; see a/so Avco sion's meeting on 0 ranted, and ff so, whether the district court's Communitv Deteloper$ lnc~ v. South Coast commi~/oners vot~ award was excessive. Re/r/ona/ Co~,n'~, 17 CaL3d 785, 132 Cal. t pret Ordinance II RESOLUTIOI~ TRUST COat'. v, 0N R~, ~, ~ P~ ~, (1~6) (~on of of ~e ~ ~ ~ ~ 1~, ~ y~ ~IG~ v~ ~t ~ d~o~ ~o~ m~ ~m ~e ~ ~e T~ ~ ~ ~ wn- ~ ~ ~e ~ on ~ f~ ~i~,~ ~ ~ ~t), ~ ~ ~ d~o~ ~ ~- ~ ~tnn~ ~ ~ ~ U~. 1~, ~ S.~ 1~, 51 ~on ~ ~e ~ W ~om ~e jolt ~ ~ ~ ~ L.Ed~ ~ (1~. ~ ~ ~o~ ~w ~~~t~hno~ ~t ~ ~ ~ ~e ~ht~on~'a~g~r- ~~~e~ ~ ~m- ~ ~e ~ple~on ~ ~ ~ ~~ h~d ~ ~ ple~ by ~ 8, 1~." M~, ~e ~~d~~y~m ~'s a~ ~ ~ ~e ~ ~m~or wn~d~ap~ Ma~ 1~ ~pl~on ~ ~ a T~ ~m- ~ F~ at ~; ~ v. ~ of P~ ~on ~op ~ J~ 5, 1~. ~ ~ ~ de ~ ~ F~ ~% 1~1 (I1~ ~.1~) i ~ ~ ~ (v~ ~h~ ~ p~ ap~ ~d ~g rail). ~); ~ ~ I~ v. ~ of F~ ~ ~e ~on ~ ~e ~j~'s ~p]~ ~ ~ ~~ ~ F~ 1~ (11~ ~.1~) fion~~8,1~2~n~t .~fiom ~, (v~ ~ ~ m~), ~ ~ 4~ o~y ~ ~n~t W ~ ~ ~d h~ ~ ~ U.S. 1~, 1~ S.~ 17~, 1~ L.Ed~ I~ ~nd ~e ~ ~ning ~ond 1~. ~ ~ ~d~- (19~). ~e ~t'~ a ~ ~t of ~o~da ~e~d~t ~ ~g ~e ~dpl~ ~ ~e ~ of ~ ~ ~~g ~ ~ ~ ~n~ude ~t ~e T~'s ~- ~e jolt ~s ~ble ~fion ~ ~d ~t ~ ~fion of ~ ~, ~ ~p~- ~d ~ W ~ ~ ~o~ W ~e jolt v~, ~d ~e jolt ~- ~on of i~ ~ ~in~u~. ~gh ~e ~'s ~ of ~ ~ a ~o~ble T~ ~ ~ U.~ ~ 5~, ~flon ~ W ~e 1~ of a p~ '~ a ~, ~t h mo~ cl~ ~ ~e T~'s ~ ~(1~); ~ ~ ~e ~ ~ ~y '.. ~ ~, ~ S.~ ~ ~t ~ jolt v~ of ~ (1~6); Mad~ ~ s ~ ~t ~ ~e ~ ~ of ~t ~o~ ~e up" ~~ ~e ~- ~den~ P~ ~ d~o~ ~ m~- [ a ~ ~t fi~ ~d ~ '~ m~ ~ m~ent" p~ ~ ~ ~e p~ ~e ~ of ~e ~, ~ ~ ~ p~ f~~on of~ ~ ~ ~~e~~~g~en[~e · (1~); ~ 4~ a~ ~ ~e a~ p~s ~d ~on] ~s] ~t .... ~ We ~d~ ~& a ~n~~ ~. h ~ ~, ~ ~e ~e of comple~on ~ ~t ~ ... ~ nOt.~ 1~. PW V~ ~ fo~ ~, ~e ~ f~ ~ ~e ~ ~p~ ~1~) (~n~ ~on of ~ ~ of ~ ~ ~nS~oa s~m~ ~ ~ ~ ~ i~ edo~ ~ ~ or ~d~- ~ J~ 1, 1~5 ~e T~ ~ ~- m~t ~fl~ W ~t ~t). 3~. at ~1, ~ S.~ ~ ~ ~& ~d~ ~t ~ns~on ~ 5~, ~ S.~ at ~der ~ ~ m~t ~ ~mple~ ~ [3] ~e T~'s m~ ~w ~d~ ~o~ ~ a ~n y~ of ~e o~'s ~e ~ or ~on ~ ~e a~ W ~t ~~P~ ~ ~ da~ ~ ~e ~pt of ~ i~~ ~e~of~e~m~ ~ ~ ~, ~' ~ ~m ~ ~ ~ appH~le ~en~ ~on ... ~ ~ ~d~- ~ ~n~, ~ ~ ~.~ ~d i~~ofi~~d~o~ ~ ~ fo~, ; B~ ~,~~42 (~p~ ment~at~y~ .... ~ ~dB~, t~p~ ~m i ~d~). ~y ~ ~ ~e ~'s ~ ~ No. ~ $72 (~p~ ~ ~ U~. at ~1, ~ ~ ~ ~ at ~e T~ ~ add~). B~ ~1; ~ ~ A~ ] ~on's m~g ~ ~ ~ I~, when ~e ~ ~, 1~ C~ ~~~~g~mple~ ~ of ~ ~ ~e ~d home ; rule powers embodied in the Florida Consti- mental body responsible for implementing The joint venture oppesed tution" Fla. Const` art. VIII, § 2(b)' '~ia the regulations has reached a "final decision pretati0n and decision of the To Sta~ § 166.021 (1987); Citer of O, .~d regarding the application of the regulations repeated protests. The joint ' Beach v. Cou~y of Volusia, 535 So~2d 802, to the property at issue." W////amson v. peared before the p!~nnin~ Boar 304 (Fla 5th D.CA.1988). Clearly, the.Com- County Regional Plannin~ Comm'n v. Ham- mission pretesting the Town's mission possessed authority to interpret its //to~, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, seeking reinstatement of the RP own ordinance, and the joint venture could 87 .L.Ed~I 126 (1985); A.A. Prof/e~ 850 1990 completion date. On Apl reasonably rely on that interpretation. F~I at 1486. The finality requirement is representatives of the joint ventt Because the record supports the district necessary to allow the court to evaluate the a Commission meeting in which court's conclusion that the Town's represen- "economic impact" and the extent of the chal- attorney informed them that tations induced the joint venture to invest lenged regulation's interference with "rea- was finsl. The Town rejected millions of dollars to develop the RPUD, we sonable investment-backed expectations." joint venture's appeals, ultimate] affirm its determination that the joint yen- Williamson County, 478 U.S. at 191, 105 representatives that the RPUD ture possessed a vested right in RPUD son- S.Ct. at 3118. In addition to the require- "dead," that the Town was "tit ing through August 8, 1990. ment of finality, a property owner must also ; neys ssying they have an exte establish that no state remedy adequately RPUD,' and that the "Town II;' RIPENESS provides redress to the injury that the final voted 5 to 0 that the RPUD e " decim'on causes. Corn v. Cit~ ofLa~erdol, e 1985f' The Town contends that the jointventure's Lake~, 816 F~2d 1514, 1516 (llth Cir.1987); [7] Relying upon constitutional ol~im~ are not ripe for review A.A. Profi/e~ 850 F,2d at 1486. progeny, the Town argues that because the Planning Commi~-,Aon's decision ture still should have "appealed'~ .. not to"~n~] the joint venture's RPUD be- ~he facts in the record support the district decision, and asked either for a yend 1985 was not a firud decision, and the court's finding that the Town's decision not time extension. 478 U.S. 172, 10~ joint venture could have sought review of to extend the RPUD zoning until 1990 consti- ~ Ltd. ~. C/tit of that decision" For the reasons that follow, tutes a final decision" E/de, 908 F~I at 720- F~2d 1570, 1576 (11th Cir.1989 we reject this argument. 21. From the t~ne the mayer informed the agrea While in most instances [4] Whether a matter is ripe for judicial joint venture of the RPUD's completion date, owner must. apply for a varian¢ review depends on the nature of the claim in 1980, until the Town altered its interprets- intrusive use, to determine asserted. B/de v. Sa~zota Countlt, 908 F~I tion of Or~!,,,ce 282 in 1984, the composi- municipality will allow, such a 716, 722-23 (llth Cir.1990), cert de,/ed, 498 tion of the Town Commi~'"!o~ changed ac- was not nece____~ry here~ The ' U.S. 1120, 111 S.Ct` 1073, 112 L~Ed~I 1179 companied by a change in philosophy regard- terpretation of Ordinance 282 (1991); Seguin v. Cit~ of Sterling Heights ing RPUD zoning. During its May 2, 1984, joint venture's right to lapse 968 FY-A 584, 589 (6th Cir.1992). Thus, we meeting, the Cot-mission unanimously decid- ing." Then the Town adopted a must consider whether each o-l~iTM is ready ed to reinterpret Ordinance 282, thereby' sire plan, ulthnately downzonin8 for review individually. The joint venture changing its effective completion date to per acre. These facts demonst~ asserted three claims, inverse condemnation July, 1985. The Commission then referred Town settled on a final use. under the Fifth Amendment, and substantive the matter to the Planning Board for to issue ~ 850 F~.A at 1487 (final us~ and procedural due Process o]~im~ under the a "determination and recommendation." by city's adoption of o~in~nce r~ Fourteenth Amendment. Although .the The Planning Board conducted a series of owner's property). Town ltunped these claims together, in its meetings during which it addressed this is- The transparency of the Tow~ initial brief to this court, we address the sue, and ultimately voted for the R!UD to that the joint venture should hay ripeness of each separately because different . expire automatically in July, 1985. Further, to the Commission (the same bc standards apply to different claims. $~ the Board concluded that "no evidence"ex- viously denied their requests) fc E/de, 908 F£d 716, 722, 725 n" 16; Seguin, isted which ~extended [the build-out date] tension, is obvious because any 968 F~2d at 589; Nas/erou~-/Bro~ I~. C~ beyond July 198~," and recommended that as the Town's own actions , v. Cit~ of Sterling He/ghts, 949 F.2d 890, 894 the joint venture not receive any extensions, would have been fuffie. See E4 (6th Cir.1991). After this decision, the Commission directed at 726 n. 17 (futility exception the town attorney to inform the joint venture excuses repeated submissions ~ Fifth Amendment Claim of the Town's decision. In notifying the joint submissions would be futile) (c [5, 6] A Fifth Amendment c~,~r, that gov- venture of the change, the town attorney Cre~ Dev. Corp. v. C/ty of ernment regulation constitutes a taking is intended to convey that this was the Town's 375, 377 (9th Cir.), cert den/ed, not ripe for adjudication unless the govern- 'official final position. 109 S.Ct~ 134, 102 L.Ed~?.d 106 ~r implementing i The joint venture opposed the new inter- cause no uncertainty erases r~ ~,~ a ~i,~! decision .:~ pretation and decision of the Town, lodging level of development the Town would permit, ~ the regulations i repeated protests. The joint venture ap- the reapplication requirement would not have W////amson ~. peared bef°re the Plsaning Board sad Corn- served its intended purpas~ ~r, 7omm'n ~:. Ham. mission protesting the Town's reversal and 881 F2d at lb'7~ Because the Town cetab- S.C°a 8108, 8116, seeking reinstatement of the EPUD and the Eshed a final use for the property previously & Profi/~ 850 1990 completion date. On April ~0, 1985, designated RPUD, the joint venture's ~ ~ r~qulrement is representatives of the joint venture at~ended Amendment taking ohim was ripe for review. t to evaluate the a Commission meeting in which the town's xtent of the chal- attorney informed them that Town's decision B. Due Process Cia/ms 'ence w/th ~rea- was final The Town rejected e~ of the i expectatioas." joint venture's appeals, ultimately telling its [8] In add/flen to its Fifth Amendment ~. at 191, 105 representatives that the RPUD project was takings ol~_im; the joint venture also asserted , to the require- ~desd," that the Town was ~tired of attar- due process ~l~im~ Because the joint yen- owner must also neys saying they have an extension of an tare won verdicts on these claims ~s well, ~ adequately RPUD,' and that the ~Town Corem/as/on independent grounds exist for affirming the wy that the fiasl voted 5 to 0 that the EPUD expired July, district court, even ff the 'F/fth Amendment ~ of Laudz~a/e 1985~" claim were not ~ ; (llth Cir.1987); [7] Relying upon W////am~on and its [9] A property owner's rights are violat- 1/86. progeny, the Town argues that the joint yen- ed the moment a governmental body acts in ~pport the district ture stiIl should have ~appenled" the Town's an arbitrary manner sad applies that arbi- wn's decision not decision, sad asked either for a variance or a trary action to the owner's property. E/d4 unhq 1990 consti- time extendon. 473 U.S. 172, 105 S.Ct. 3108; 908 F2d at 724-26 (discussing ripeness re- 908 F2d at 720- ~, Lt~ ~. C/fy of A~, 881 qulrements for due proceas ehims). Because ~yor informed the F2d 1570, 15'/6 (11th Ch'A089). We dis- agree. While in most instances a property the application of an infirm governmental ~ cempletien date, owner must. apply for a varisaee for a less proeees itself represents sa injury to the red its interprets- intrusive use, to determine what use the landowner, the Joint venture's due process claims became ripe the moment the Town 9/M,' the compcei- municipality will allow, such a requirement took action depriving it of its vested right. ~en changed se. ~hilasophy regard- was not necessary hera The Town's rein- $~ui~, 968 F~2d at 589. : its May 2, 1984, terpretation of Or~-~uce 282 caused the n~ntmousiy de,id- joint venturo's right to lapse into %o zon- Here, the joint venture's injury oceurred ~es 282, thereby' ing.~ Then the Town adopted a comprehen- when the T°wn reinterpreted Ordinance 282, ~pletion date to sire plan, ultimately downzoning to six units halting the completion of the joint venture's ion then referred per acre. These facts demonstrate that the project, sad made it cie~r it would not eom- Board for to issue Town settled on a final use. See A.A. Pro- promise its reinterpretation that denied the mmendation., ~ 850 F2d at 1487 (final use established joint venture it the ,benofit of its vested by c/ty's adoption of ordinance rezoning land- righta Because the Town terminated the Jutted a series of owner's property). EPUD zoning in 1985, the joint venture's · ldreased this is- The transparency of the Town's argument claims for violation of its due process rights 'or the RPUD to that the joint venture should have "appealed" became ripe at that time~ ,, 1985. Purther, to the Commission (the same body that pre- 'no evidence"-ex- viously denied thdr requests) for a time ex- III. TOWn'S LIABILITY .~ build-out date] tension, is obvious because say such appeal, ~ommended that as the Town's own actions demonstrate, Il0] Next, the Town contends that the ~ any extensions, would have been futile. See E/d~ 908 F2d jury's liability findings, wh/ch the district uuleston directed at 726 n. 17 (fut/Hty exception to ripeness court adopted, are contrary to the manifest the joint venture excuses repeated submissions where further weight of the evidence and clearly erroneous. ~otifying the joint submissions would be futile) (citing She/t~r We review sueh factual findings for dear ~ town attorney Creek Dev. Co~ v. Citg of Oxna~a~ 838 F2d error in a light mast favorable to the jury's : was the Town's 875, 877 (gth Cir.), o~t d~/~ 488 U.S. 851, verdict. Szz Nzu~ll v. ~ l~a C~ of 109 S.Ct. 1~4, 102 L.Ed2d 106 (1988)). Be- Amir/ca, 904 F.2d 644, 649 (11th Cir.1990). A. Due Process Violations required t~t the Town give the joint venture 2. Substantive Due [11] To determine whethe. Jvernment notice and a fair hearing. It did er. (14,15] Deprivation o ~ est rises .to the level of action violates an individual's due process Second, the Town argues that because the process violation if done rights within the context of section 1983, the Planning Board is merely an advisory body tires and achieved throu court must determine (1) whether the action and "could not deprive [the joint venture] of arbitrary and capricious, deprives the individual of a constitutionally anything," due process did not require notice tional basis. Spon~ 'v. protected interest, and (2) whether that.de- of the meetings. This contention, while F~2d 256, 258 (11th Cir privation occurred without providing sub- somewhat more compelling, meets the same 881 F.2d at 1577; Eze~ut stantive or procedural due process, fate. The district court specifically found 1541. The question befo~ Crreenbr/ar, 881 F.2d 1570, 1577 (llth Cir. 1989); Ezecutive 100, Inc. v. Martin Count~/, that the Commission delegated the decision er the Town acted in an 922 F£d 1536, 1541 (llth Cir.), ce~t~ de- to accelerate the completion date to July 1, cious manner when it n/ed, m U.S. , 112 S.Ct. 55, 116 1985, and the facts in the record support this uance 28~ We conclud. L.Ed2d 32 (1991). As noted above, the dis- finding. The record demoustrat '~ sion knew that the joint trict court correctly found tl~,t the joint yen- During its May 2, 1984 meeting, the Com- upon the mutual unde ture attained a protected property interest or mission voted unanimously to "formally refer Town, and committed "vested, right" in the RPUD through 1990. the matter ... to the Planning [Board] for develop the RPUD. In Thus, we must determine whether facts sup- determination and recommendation.' Then, sions, the Town's own port the jury's findings that the joint venture after the Planning Commission reached its Commission about the was denied substantive of procedural due decision in December, 1984, the Commission unilateral actions. Spec process. -directed the town attorney to advise the joint and other public ~ venture of the Planning Board's decision, that the joint venture 1. Right to Notice and Fair Hearing On January 30, 1985, the town attorney Mayor's letter declaring [12,13] Procedural due process requires wrote the joint venture a letter informing it ss 1990. The town adequate notice and an opportunity to bo of'the Town's new, "official" positio~ Then, tioned that changing th, heard "at a me~,ingful time and in a mean- when the joint venture protested the change, tion of Ordinance 282 w( ingful manner." Bodd/~ v. Connect/cut, 401 the Town informed it that it "was tired" of pek" Likewise, the To' U.S. 371, 378, 91 S. Ct. 780, 786, 28 L.Ed£d the joint venture's attempts to extend the or's warning that the 113 (1971) (quoting A~st~ng v. Manz~ 380 RPUD and that the Commission voted unani- venture down the ~l~ri U.S. 545, 552, 85 S.CL 1187, 1191, 14 L.Ed~2d mously that the RPUD expired in 1985. upon the 1990 completic 62 (1965). In this case, the evidence shows These circumstanc~s demonstrate that the after the RPUD lapsed, that the Town: (1) failed to provide the joint Board's decision was not "merely advisory." 7 designation to revert venture with notice of its meetings which Town took an extend~ resulted in the reinterpretation of Ordinance Finally, the Town argues that it provided rezone the site, denyint 282; and (2) failed to notify the joint venture notice when it wrote the joint venture con- of the property? ~ of the Planning Board's December, 1984, cerning the Town's review of the completion to accept applications meeting, in which the Board voted to declare date, and then again when the Planning previous permits, even the RPUD at an end in July, 1985. Board reported to the Commission. These had premised such pe The Town attempts to circumvent what actions, however, did nothing to protect the ing. This evidence would appear to be a glaring due process joint venture's due process rights. The town ing that the Town act~ violation in three ways. First, the Town attorney's one paragraph letter to the joint capricious manner wi argues that the 1985 completion date was set venture merely informed it that the issue joint venture's rights. in 1975, and the joint venture had ten years was "under revievf and provided no informa- B. Fifth Amendm( advance notice. This argument lacks merit, tion concerning the appropriate hearing because the Town altered its official policy schedule. Thus, the Town did not adequate- [16] The jury concerning the RPUD's expiration date. ly notify the joint venture or allow for a favor of the joint v, Thus, because this change altered the joint meaningful hearing, and the jury's finding is claim, finding that venture's vested property rights, due process not clearly erroneous, change in the comple taking because it dep 7. The Tovn~°s reliance upon Macen~ v. M/W, Inc., and opportunities m assert its position before the 951 F.2d 700 (6th CirA991) is misplaced because governmental body. 8. After the RPUD exp in tha~ case the aggrieved par~y received notice Town relegated the ye the joint venture 2. Substant/ve Due Process v g. It did neither. [14,15] Deprivation of a property inter- Town contends that this finding lacks factual ' ' es that becanse the est rises to the level of a substantive due ~upport. ! an advisory body proee~ violation ff done for improper mo- [17] The applicat/on of a general zoning he joint venture] of tivea and achieved through means that are law to a spe~ed piece of property effects a arbitrzry and capric/ous, and lacking any fa- t~dng ff it denies the. owner of the economi- d not requ/ro notice tional l~/s. Spen~ 4. g/~n~man, 8~ contention, wh/le F.2d 266, 268 (llth C/r.1.{~9); Ceree~rr~, cally viable use of the property. AF/nz v. ~g, meets the same 881 F2d at 167'/; Ez~/v~ 100, 922 F2d at C~t~ of T~bun~, 44'/Ua. 255, 260, 100 S.Ct. ~ zpeeifie~ly found 1541. The q~e~dou beforo us then is wheth- 2138, 2141, 65 L~Ed2d 106 (1980). Whether egeted the dec/sion er the Town acted in an m~/trm-y and ~4~ri- state ~e//ou denies a landowner all er sub- ~ou date to July 1, cious manner when it reinterpeeted Ordi- stantially all economical~ viable use of his record support thts usnes 282. We conclude that it did. property turns on the economic impact on the ehlr~nt and the ext~nt to which the The record dem~ that the Commi~- regulation interfm~s with investment-backed meeting, the Com- sion knew that the joint venture was relying expeetation~ Bow~ ~ C,4///a~d, 483 U.S. y to ~formally refer upon the mutual understanding with the 587, 606, 107 S.Ct. 200~, ~20, fr/L.Ed2d 485 :enning [Board] for Town, end co~ substantial funds to (1986). The ad hoe, e~e-by-case inquiry menda//on.' Then, develop the RPUD. In fact, on several ceca- which aecompsules this determination re- n/ssiou, reached its sions, the Town's own attorney, warned the quires no moro than an appl/cation of the law ~4, the Commission Commi~iou about the reperau~o-~ of its to the fae~ Bow~ 483 U.S. at 606, 107 unilateral aetion~ Spec/fically, the attorney S. Ct at 3020. Contrary to the Town's eon- y to adv/se the joint and other public ofl~oi~l~ informed the Town ton//ou~, suffieleut evidenco exists in this ~ Board's decision, that the joint venture was relying upon the case to support the finding that the Town's the town attorney Mayor's letter deehring the completion date action denied the joint venture the economi- , letter informing it as 1990. The town attorney further cau- tally viable use of its property. P~n~ ~ al" position. Then, t/oned that changing the exis~g interpreta- ~ T~p. C~ ~ New Yerk Cfi/t, 438 ~tested the change, //on of Ordlr~nce ~ would create an "estop. 104, 138, 98 .q. Ct. 2646, 2666, 57 L.Ed2.d 631 ~t it "w~ tired" of peL' Likewise, the Town ignored the may- (1978); Leces v. South Ca~o//na apts to extend the ors warning that the Town led the joint Counc/~- U.S. , ,112 S.Ct. 2886, si~iou voted unani- venture down the ~eimroee path" to rely 2898-94, 120 L.Ed2d 798, 813 (1992). ~ ~xp/rod in 19//5. upon the 1990 completion date. Addit/oually, nc~strate that the after the RPUD lapsed, causing the property Ath~ the Town elumged the RPUD action 'merely advtsory.' ? dest//m~ou to revert to ~no zoning," the date, imuffioient time remained for the joint Town took an extended period of time to venture to eomple~ the project. Although ~es that it provided rezone the site, denying the joint venture use the joint venture appeared before the Plan- Joint venture eon- of the property,s Fi,~lly, the Town refused ~ Board and Town Corem _t~dou repeated- · of the eomple//on to aecopt applications for the rehsusnes of ly to zeek rehu~atement of the 1990 comple- d~n the Planning previous permits, even though it previously t/on date, th% Town held to its position. Af- :ommtssien. The~e had promised such permite were forthcom- tee the RPUD zoning lapsed, causing the ~ to protect the ing. This evidence supports the jury's find- property to lapee into ~no zoning," the prop- s rights. The town ing that the Town acted in an arbitrary and erty became completely unusable. Then, in letter to the joint e~pricious manner without respect to the 1987 and again in 1990, the Town downzened it that the i~sue joint venture's rights, the property severely limiting its economic ~)~lded no informa- value to the joint venture. propriate 'hearing B. Fifth Amendment Takings The Town's act/ohs cauaed a detrimental did not adequate- [16] The jury also returned verdicts in economic impact to the joint venturo's invest, .~ or allow for a favor of the joint venture on its takings ment. During the period of ~no-zening," ~e jury's finding ts ohio, finding that the Planning Board's from July, 1985 uut/1 1987, the value of the change in the completion date constituted a property, dropped precipitously, from $17,- s lx~l~ion before the taking because it deprived the joint venture 000,000 to $2,000,000. Although the proper- ~. A/ter the RPUD expired on 2uly 1, 1985, the which prevented the joint venv~re from making Town relegated the property to "no zoning," any use o/the property. 1550 18 FEDERAL REPORTER, 3d SERIES RESOLUTION TRUST, £ ty's value climbed to a nuccimum value of mitted to invite another onto a welcome g~nz~u//~/Fr/o Ice, $.,4. ~. Su~fvu~ $6,000,000 after rezoning, its value fell far mst and then be permitted to'snatch that F~d 154, 159 (llth Ch-.1990); below the joint venture's initial investment of mst away to the detriment of the party ge~ Center, Inc. ~ Ne/zo~ 872 F~ $8,000,000, completely destroying the joint induced ... to stand thereon. A citizen is 1561 (llth Cir.1989), o~d 498 U.S. venture's investment-backed expectations, entitled to rely on the assurances and com- S.Ct. 888, 112 L.Ed.2d 1005 (1991). These facts support the conclusion that the mitments of a zoning authority and if he no abuse of discretion here. To Town's actions effected a tak/ng of the joint does, the zoning authority is bound by its .~ intended effect, the injunction prov venture's property'during the "n~.zoaing" representations, whether they be in the joint venture with the opportunity tc period and thereafter? form of words or deeds .... the property as intended under the The jury's verdicts on the takings issues F/or/d~ Coa ~. Orange Cou~, 411 SoYxl RPUD. The courts equitable order were purely advisory. Se~ United Stat~ v. 1008, 1011 (Fla. 5th D.C.A. 1982) (quoting this. Because it must only grant r~ ReFno/ds, 397 U~. 14, 19, 90 S. Ct. 803, 806- Town of K~ La~go v. lml~rrial Homes modifications of the plans, the 07, 25 L~EcL2d 12 (1970); De'p~ of Agric. and Corp., 309 So.2d 571, 573 (Fla 2d D.CA. does not rob Town of its legislative ~erv'8 v. Polk, 568 So.2d 35, 40 1075)).. The record reveals that the district tires ss it suggesta "(1~.1990). Thus, because the court deter- court was justified in its application of the mines all issues,' legal and factual, in an doctrine of equitable estoppel. V. DAMAGES inverse condemnation s~t, save the question In this case, the Ons] judgment demon- As noted, significant confusion ~ of just compensation, the Town's .argument strates that the joint venture relied in goo~. . the jury's damages swat& Ultims~ that the jury's finding was erroneous is s~g- faith upon the Town's representations, con- ever, after several shifts, the dist ni~cantiy weakened~ tained in a letter fr~n the Town l~yor, that concluded the jury intended to ay the RPUD expired in 1990. The Mayor 150,000 in temporary d__~mages an~ IV. INJUNCTIVE RELIEF wrote the letter under the authority of an at 000 in permanent 8~m~,~s and ent~ the express' direction of the Town Commls- ment accordingly. The Town [18,19] After concluding that the Town sion, the highest policy making body in the these findings on several ground: was equitably estopped from denying the Town. Given the terms of the ordimmce at addi~ss each argument. joint venture's vested rights to the RPUD, issue, the Town's interpretation of when the the court ordered reinstatement 'of the RPUD would expire, ss outlined in the May- [22] First, the Town argues tt RPUD for a period of five years, one month or's letter, was not absurd. This under- swers to the special verdict sho~ and seven days (the remaining thne period of standing was reaffirmed several thnes from jury intended to award $31,560,00( the joint venture's vested rights). The court 1980 to 1984, and induced the joint venture to rary damages for property the jut also ordered the Town to permit an reason- invest over $8,000,000 to begin the project~ $17,000,000, and that such an able modifications to the approved plana The district court's factual findings underly- excessive. Because we conclud, The Town contends that these findings ' lacked support in the record. We disagree, lng its application of the equitable estoppel jury did not intend to award $3~ doctrine are supported by competent and temporary damages, we reject thi; [20] Under Flor/da law, a municipality.is weighty evidence contained in the record, The confusion surrounding the equitably estopped from exev~i-g its zoning and "the conclusions of law follow logically age award arises from the spe power when a property owner (1) relying in from the findings." Corn, 427 So~A at 243. form itself. The special verdic good faith, (2)upon an act or omission of the We therefore will not disturb them on ap- two questions asking the jury t government (3) has made. a substantial peal land with and without the RPUD an appropriate permanent dam change in pos/tion or incurred such extensive [213 We also aff~m the district court's (questions # 6 and # 7). Howe obligations and expenses that it would be ruling directing the Town to grant ali reason- the court's instruction to the highly inequitable and unjust to destroy the able plan modifications, consistent with pur- should award permanent damag rights the owner acquired. ~ of Lauder- poses of the RPUD. Granting injunctive ~ verdict form provided no op] ~ Lakes v. Corn, 427 So~l 239, 243 (Fla relief, like other equitable remedies, falls the ~ to do so, nor did it me~ 4th D.C.~ 1983). This doctrine is grounded within the broad discretion of the district on fairness and common sens~ court and we will not disturb the court's nent damages~ Thus, this omis court to make the proper con [E]stoppel amounts to nothing more than exercise of discretion absent a clear showing permanent damages, yielding a ... fair play. One party will not be per- that the court abused its discretion. See 000,000. 9. Although the Town does not challenge the just Qf clear error. Because credible evidence sup- damages, the For compensation, or damages, the jury arrived at ports the jury°s findings in this regard, ~o clear RESOLUTION TRUST CORP. v. TOWN OF mGHLAND BEACH 1551 Citem 18 F.Sd IS~6 (llthCfr. 10~4) t~r onto a welcome g~ra/lit Fr/o Ice, ,SA ~. Sunfruff, Ina 918 three different intervals (questions # 8, 9, ~ to snatch that F2d 154, 159 (llth Cir.1990); Haitian P~fu- and 10). This re~lected the district court's a'lment of the party g~ Csa~r, I~ t~ Nz/son, 872 Fid 1555, conclusion "that since the diminution in value thereon. A c/t/zen is 1561 (llth Ch-.1989), o~d 498 U~. 479, 111 varied dm-ing ~ time periods, it was [nee- assurances and eom- S.Ct. 888, 112 L. Ed2d 1005 (1991). We find eesary] to pose the qnest/ens in ~ way that authority and ff he no abuse of discretion here. To have .its reflected these differences.' The verdict ~eity is bound by its intended effect, the injuncedon provides the form, how~wer, eonts/ned no prov/s/on for · ls .... joint venture with the opportunit~ to develop comput/ng the total amount of temporary the property as intended under the or/ginsl damages nor did it speeiflcslly refer to tem- Cownt/t, 411 So2d RPUD. The court's equitable order achieves porary damages. Again, the omism'on re- CA. 1982) (qunting this. Because it must only grant reasonable quired the court to mske the appropeiate ~. Im~z~/a/ Homes modifications of the plans, the injund/on computation.. ~7~ (Fh. 2d D.CA~ does not rob Town of its legislative preroga- Compounding this problem, the jury never ~als that the d/str/ct fives a~ it sugge/~, received instructions on valu/ng the property s ~01ication of the during the three different t/me inter~l~ In oppeL V. DAMAGES fact, and the court's instructions specifically ! judgment demon- Az noted, s/gnificant confu~/on arose from called for a single figure for temporary dam- ~ture relied in goo,d the juffs damages awar~ Ultimately, how- ages. Thus, in answering question nu', .,r -~wesentafions, con- e Town Mayor, that ever, after several shifts, the district cotrrt ten, the jury wrote in the total figure: "~ 9 1990. The Mayor concluded the jury intended to award $16,- $14,459,000 plus # 10 $1,700,000 = $16,150,- e authority of an at 150,000 in temporary damages and $15,000,- 000,' and explsined that tiffs w~ the total ~he Town Commis- 500 in permanent damages and entered judg- temporary damage swat& ment accordingly. The Town challenges The foreperson: We have one question on ~tking bo~ in the ~f the ordinance at these findings on several grounds, and we this one, your Honor. We weren't sure if .~tton of when the ~dtned in the May- [22] First, the Town argues that the an- number nine and number ten or ff you unt. This under- swers to the special verdict show that the wanted the total figure. We have the dif- ference 'as $1,700,000 even; or $16,I50,000 ~ times from jury intended to award $31f~00,000 in tempo- depending on whether you wanted it added ~he joint venture to rary damages for property the jury valued at to number nine. [EmpkMds added.] begin the prOject. $17,500,000, and that such an award was I findings underly- excessive. Because we conclude that the Afro- its initial confusion, the disixict court equitable estoppel jury did not intend to award $31,150,000 in upheld the 'jury's o 'nginal damages award, JY competent and temporary damages, we reject this argument, stating:. ~ in the record, The confusion ~rrounding the jury'k darn- We find that the jury intended to award tw follow logically damages for loes of use for the period July 427 So.2d at 243. age award arises from the special verdict form itself. The special verdict contained 1, 1985, to August 26, 1990, the sum of ~urb them on ap- two questions asking the jury to value the $14,450,000 and th~ sum of $1,700,000 for land with and without the RPUD to arrive at the period August 26, 1990, to March 4, ~e district court's ' an apprOpriate permanent damages figure 1992--the total sum of $16,150,000 for the ~ grant all reason- (questions # 6 and # 7). However, despite period from July 1[,] 1965, to March 4, mistent with put- the court's instruction to the jury that it 1992. We are convinced that the jury did anting injunctive should award permanent damages, the spo- report the loas of use for the period as ; remedies, Lalls cial verdict form provided no opportunity for intendecL [Footnote omitted.] a of the district the jury to do so, nor did it mention perma- In reconciling th~ verdict, the district court turb the court's nent damages. Thus, this omission left the noted that the verdict form was 'an invita- ;a clear showing court to make the proper computation for tion for the jury to arrive at the sum of discretion. See I penmment damages, yielding a total of $I5,- $15,000,000 [for question # 8], believing that ~ole ~ldence s~p- [ 000,000. the jury was determining the amount of per- ~' ~'S~d. ~o clear For temporary dsmages, the special ver- manent damage.' We agree. ~ a,~ rain tions the The district .~.~ ~.,,~_~ ~es requiring court's reconciliation of the 155~ 15 FEDEKAL KEPOR'~ , 3d SERIES / ~L~ON ~U~ CO~. v. . - ~ ~ p~, ~d ~ ~e j~s men~ ~da~ ~ ~ v. C~ of P&~- { ~ ~ ~e ~ ~ no ~ ~ for ~a~gd~. ~ejo~tven- ~ ~ ~ F~ ~7 (11~ C~.I~) ] ~u~e~s ~W ~~ ~'s ~ ~m~, J~ Hu~ (~ III), ~d ~ v. C~y of P&~. I ~e p~ ~e ~ ~vo~ (J~ 1, p~eo~y~denceon~. He a~ ~ 8~ F~ 1~7 (11~ C~.I~) I~,W~I~,~~J~ ~ ~t ~e v~ue of ~e ~ (~e~ ~), ~d ~ ~ e~den~ b~. ~, 1~, W ~ ~ 1~), ~d a~ eonnot s~d. B~ ~e jolt yen- ~, for ~e ~ ~m J~ 30, In ~ III, ~ corn Mop~ a fomu- ~'s ~ J~ Hu~ 1~, ~ ~ 2, 19~, ~ed $16,~,1317 h for ~ d~s for ~mpo~ reg- W a long~ ~e ~ ~e He ~ p~d~ ~e o~y e~den~ conce~- ~W~ ~ ~eh a~mp~ W ~e~ envy ~ ~ i~ ~fion ~ ~u~ ~ ~e v~ue of ~e ~t d~. ~e ~ket ~u~' of ~e ~g: ~e a~ on a p~ ~m b~ W ~nd To ~n~e ~e j~s ve~ ~e ~ ~e ~do~s compens~le ~t, W ~e ~ ~M of ~e ~g. We ~d ~m co~d~ ~ of ~e ~ces s~- ~e~fo~, ~ ~e ~t~ on ~e ~on of no ~r. ~g ~e ~ ~u~g ~e ~ ~ f~ ~ket value ~t ~ lost ~ a r~t of '~ ~e j~ comple~ ~e fora, ~e fo~ *~e ~ ~om ~r~gly, : ~. ~y INS~U~ONS ~n's ~ on ~e v~ ~e co~g ~e ~do~ shoed be a~d~ ~e ~- j~ ~o~ ~d m~t ~mfly, ~e ket ~ of m~ ~mpu~ ov~ ~e ~- [~27] N~ ~e T~ ~eng~ ~e ~bu~ ~ony oF~e jolt vent's ~ of ~e ~ ~g on ~e ~- ~ w~s ~o~ on ~ of ~e . ~ ~m~. ~e ~den~ sup~ ~e en~ ~e~ ~e p~s f~ v~ue ~fi~ ~u~ ~g ~ ~ We ~ ~'8 ~n~iom ~out ~e ~W~ ~cfion ~d im ~ ~ ~ dele whe~ ~e A ~ h ob~ W ~n~e ap~t v~Ue ~ ~e ~on. ~o~ ~ a whol~ ~ ~d M~Y ~ ~e ~e md ~ s~ ~e hw. ~d~~s~Ws~ ~ III, ~ F~ at ~1. ~e~ ~ ~W~. R~ ~ I~ v. J~ ~ ~ ~ ~m app~ ~ fom~ F~d v. ~ ~ F~ 1~, ~.1~1). We ~ not ~ Coff~ S~., I~, ~ F~ 1514, 1519 (11~ ~ ~ ~e p~ ~ of ~e ~ ~.1~). ~e a ~'s ~n~flon pm~ ~d ~e p~s ~W ~ ~e j~ ~on ~ it ~r. S~ Ja~W ~. ~. m~ s~ ~ ~o~bl~ a ~ ~t,~s p~j~ W ~e at a ~ ~t mp~en~ ~ I~, ~ F~ 1~, 1~ ~. ~e h~mde ~ ~g s~ v~ ~d ~e ~ce ~ ~e eq~W ~ ~e pmj~ ~ 1~). ~ fo~ of ~ ~ ~e~ ~ a ~ of ~e ~ ~at ~ ff ~y b~t ~d ~e ~W ~ ~e ~devel- s~o~ ~n~ qu~fio~ of ~ for ~e ~e j~s ~ W ~' ~W~ o~ ~d. ~e~ ~ ~ F~ at 1~1~2. co~v~ ~h~, ~le esWp~ due ~n~ ~ey m~t ~ r~lv~ ~ ~t In v~ ~e 1o~ ~c~ due W ~e p~, ~~e j~ ~ o~y ~y." T~ v. ~ ~$ ~ F~ 510, T~'s ~g,'~e jolt vent's ~ ~ ~ ~W on ~o~ ~u~, ~nd~ 513 (~ C~.1~), ~ ~ ~ U.S. ~, n~ ~ ~e "~ket v~ue' of ~e ~y ~r ~. 1~ S.CC 11~, ~ L.Ed~ ~ (1~); A~n- loss, ~ ~ ~e ~e ~o~ble ~ of m t~ & ~S~s v. E~n Li~ 369 ~ on ~e ~u~on ~ v~ue of ~e prop~- [~] ~e T~ ~ ~es U~. ~, 3~, ~ S.~ 7~, 7~, 7 L.E~ ty u~n ~e, not ~e ~come ~om ~ "~- s~on on m~5~ ~bffiW ~ (I~2). ~ w~ not ~ ~o~mble b~t" ~n~. ' B~e ~e development at ~e it ~d not ~ ~e j~ ~eo~n~ ~g a new ~ ~ ~e ~ue ~ ~ ~e ~volved a condo~m ~t ~e ~on p~Y ~g for T~ su~, ~ca~e ~e j~s ~nt ~ p~j~t d~i~ed for ph~d b~d~ut ~d ~W ~ "~ ~ ~ au~o~- p~. See Bu~ Ki~ C~. v. M~ 710 ~e~ ~ ~d not a proj~ ~- W," ~o~ it ~ ~. B~ sub- F~ 14~, 1~ (11~ C~.19~), c~ ~ ~ed for ~n~ ~me, ~e develo~'s eq- s~ e~den~ ~P~ ~e ~ of d~e ~ U.S. 11~, 1~ S.CL 15~, ~ L.Ed~ 130 ~ v~ ~ddy ~ ~e b~d out p~s- ~on of au~o~W ~ ~e ~yor (1~). ~, ~d ~e'~t ~ d~. ~, w~e ~e 1~ le~ md ~ ~e P~g B~ ~y ~on ov~ ~e j~s d~o~ ~ct co~ app~ed ~e f~ ~e ~q~- ~e a de~fion of ~e wmplefion a~ ~ ~m ~e aw~ ~d ~- ~ ~m ~e~ III, ~e ~ ~ ~at of ~e RP~ for i~ f~ ~, ~ ~ v~ fo~ ~ ~ ~m ~e "~ b~t' ~W co~de~fion ~ ~&r preju~ ~. ~y d~d~ of ~e ~den~ or ~e j~s ~ ~d not apply. ~t ~ony w~ ~ ~y, ~e To~ ~ ~t ~e ~pp~he~on of ~t e~dence, ~m, ~e bund. ~m on ~a~ ~ ~ ~ co~ ~d not able i~ ~on. [~] ~y, ~e To~ ~ ~at ~e ~ey &d not ~t ~cov~ W ~ket ~ c ~e To~ ~ o~ ~r, mo~ gener~ ff ~e ~ a~ ~ not ~ve, it ~ ~k f~ sup~ ~ ~e mco~. ~ Io. ~e dh~a co~ ~uc~ ~is sum m ~flect ~e joint vent~ w~ deni~ the ~ll ~nefit of i~ w~ch c~lenged ~e co~mflo~W · e I~ of ~e ~m 3~y 1, 1985, ~e fi~t ~ pm~. ~ 282. 549 ~d 557. RESOL~FION ~RUS? CORP. v. ~M18 F~ 1S36 (11~. ~- ~ ~ ~e ~ ~ no f~ ~ for ~.1~ ~u~ ~e ~s ~ ~ ~nd ~ ~P~- ~e ~ ~e ~s ~ (J~ 1, s~on ~ b~ on ~ III, ~d '~.1~) 19~, ~ ~ ~ 1~, ~ ~ J~ ~ '~ ~ ~e T~ ~n~ h ~e Y ~h. ~, 1~, ~ ~ ~ 1~), ~d ~ ~e ~ p~ ~ f~ f~u- ~ mot sm~ Bm~ ~e joht v~- ~ ~g_ ~'s ~ J~ Hu~ ~ ~ ~I. A~ETS FEES ~ m a lon~ ~e h~ ~e ~ ~ ~ ~e ~ m~ i~ v~, ~e ~ ~ him ~fion h ~u~ joht v~ m~ f~ a~e~s f~ ~d ~ ~e ~ on a pm ~ b~ W ~nd ~s~ p~t W ~n of m ~e ~ ~ of ~e ~g. We ~d S~ {~ ~.~1, ~ s~. ~e jolt vent's ~t of no ~r. motion ~y, : ~nt hw ~, W~'$1,~ f~ ~ ~. ~. ~Y IN~U~ONS ~.75 horn of ~rk h i~ m~om- ~e ~- [~7] N~ ~e T~ ~en~ ~e d~ op~g ~- ~ ~'s ~om on ~ of ~ ~e T~ ' ~e ~fi~ ~ ~g at ~ We ~ fl~entWf~e~g~,but ~ i~ ~ ~ ~ dele wh~ ~e ~- .~en~ ~e ~e ~ ~d ~e ho~ s~o~ ~ a ~o1~ f~ ~d ~y ~ bffi~. ~e ~ ~m ~ndu~ a ~ h ~ ~e ~e ~d ~ s~ ~e ~. ~y h~g on ~e ~e of f~ ~g ~ P~d v. ~ ~ F~ 1~, 13~ (~ ~o~m~a~me~donef~ m~ ~.I~I). We ~ not ~e~ ~ ~ ~for~ejo~iven~d~f~ ~ ~e j~ ~on ~ it ~.p~ for~eT~ FoH~g~ef~h~g,~e ~ ~. S~ Ja~ C~. v. L~ I~ ~ ~ en~ ~d~t for jolt v~- ~ ~ ~ I~, 7~ F~ 1~, 1~ ~.~. ~ for ~e W~ mo~t ~ugh~ ~el- 1~. ~ fo~ of ~e eb~ h' [~] ~e T~ ap~ ~e ~ ~g ~1~. ~om ~ ~o~ of ~ for ~e ~o ~. ~ ~e T~ wn~n~ ~t ~on g~b ~ ~~e~o~h~ ~ejo~tv~hnota~g d ~e ~ ~ on ~ ~, ~nd~g ~, o~ ~ ~e U~ S~~ ~ ~e d~ ~r~. s~m~ ~ ~e T~ ~ ~t ~- ~ [~] ~eT~ ~ ~ ~t~e ~- ~lufion a ~- ~on on m~ ~bffi~ ~ h ~r m~ of ~e U~ ~ ~ it mt at ~it&d not~ ~e~W ~d ~a~of~de~ ~ ~t ~e ~n ~ ~ for ~e ~m~on m ~e ~e ~t ~ ~e F~ t ~d ~ ~ ~ ~ ~g au~o~- De~t I~ ~- ~," ~o~ it ~ ~. B~ su~ ~g os ~- s~ ~den~ ~p~ ~e ~ of d~ ~ de~ ~m~om 12 U.S.C. ~- ~on of au~od~ W ~e ~yor W ~ ~e $ l~la~)(1)(A) ~d ~). h ~e 1~ le~ ~d m ~e P~g Bo~ ~ We n~ not ~ ~ ~e ~ d~- ~q~- ~e a de~on of ~e ~mpl~on da~ ~g ~e ~ on a~me~s f~s, ~e T~ t ~at of ~e ~ for i~ f~ ~, .no ~ con~ ~at ~e jolt ven~ ~&r p~ju~ ~. ~ ~e p~v~g p~. In im m~o~- ~ ~, ~e T~ ~es ~t ~e ~c- d~ fio~ on ~ ~ ~ ~ ~ ~e ~ey ~d not ~t ~v~ ~ ~ ~ of ~at ~e p~ ~ ~e p~ng p~ . ~ ~ck on ~e j~ ~om. ~ ~t ~e of i~ w~ch ~ ~e ~~ of ~- ~nm~'s motion m ~d ~e pi~ to con- ~ 282, 549 ~d 557. ~ a~t ~c~ ~m m ~e e~d~. 1554 18 FEDERAL REPORTER, 3d SERIES AIRPORT RI on both their inverse condemnation and civil the Town concedes that rates applied by the ruination, the court acted rights claims .... Thus, the dispute here is court were reasonable, we only consider cretion when it awarded fee~ not whether plaintifrs are entitled to an whether the hours expended were reason- award of fees, but what the amount'of such able. CONCLUSIOI~ an award should be." Later, during the fees The joint venture sought attorney's fees We hold that the Town's hearing, the Town reiterated this concession. for over 12,000 attorney hours. In support its own ordinance, Ordinan~ Such concessions are binding upon the Town. of this figure the joint venture submitted vested rights in RPUD zonin WiLson v. Bailey, 934 F~.d 301, 305 (llth three volumes of materials containing the obviating th~ need for an am Cir. 1991). See also Un/ted Statee v. Lott; affidavits of the three primary attorneys who ordinance. Thus, we conclud 870 F£d 778, 781 (lst Cir.1989); Lou~ v. ; BaF Terrace Co.~rp. Section,VIII, Inc, 869 worked on the case, copies of billings from all venture reasonably relied u; F.2d 173, 175 (2d Cir.1989); fin/ted States ~. three law firms involved and the tabulations representations when investi Northern Colorado Wat~ Coaserv. Dis~, 608 of the fees. During the hearing, the joint opment project, and suffere~ F.2d 422, 431 (10~h Cir.1979). Because the venture introduced the test~nony'of three the Town voted that the RI Town failed to challenge the joint venture's lawyers who testified as to the accuracy of pired in 1985. We decide al the time sheets and the necessity of the of the joint venture. ~tns as a prevailing party in the trial court, hours worked. The joint venture also called it waived review. First Alabama Bank, N,4. AFFIRMED. v. First State I~a Co, In~,. 899 F~d 1045, a fee expert who testified that the hours 1060 n. 8 (llth Cir.1990); In ~ Daikin Mia- logged on behalf of the joint venture were "~ ' .... mi Ove~eas, Inc, 868 'F,2d 1201, 1205 (llth reasonable and necessary. Based on the evi- Cir.1989); Sander5 v. United $tate~ 740 dence before itthe district court determined that the joint venture's request was reason- F~?xl 886, 888 (llth Cir. 1984). able and awarded fees. We agree with that Acknowledging its waiver of this issue, and determination. citing this court's decision in Dean W/tier The record on appeal, comprising over ten AIRPORT RElqT-A-CAR, Reyno/d~ Incv. Fernandez; 741 F~2d 355, boxes of materials and exhibits, and briefs corporation, Plaintifl 360 (llth Cir.1984), the Town argues that we should relieve it from its waiver. We reject comprising over one-hundred fifty pages of · argument reveals a case of exceptional com- v. the Town's invitation to do so, for even ff we plexity and ~tricacy. The roots of the case considered its argument under section' 1988, PREVOST CAR, INC, the joint venture is still entitled to fees under reach back over two decades and actual lit/- Corporation, Del gation involved has now eclipsed five years. Appellee. Florida law, so there is no miscarriage of The issues presented at trial were hotly dis- No. 93-401 justice. Sanders, 740 F~2d at 888. The puted and extensively litigated. Even on Town conceded this during the fee hearing this appeal the litigants have fought grudg- United States Court and did not brief the issue qn appeal ingly over each and every issue, some of Eleventh Cir which are raised for the first time here. The [30] The Town also argues that the large number of hours spent in trial prepara- April 19, court's award is "grossly excessive and inade- tion for this case arose, in a large part, from quately described." The argument lacks the inherent scheduling difficulties in the Hugh T. Maloney, Gary merit, case and the Mghly technical nature of the son, Maloney & Gardine~ ~se itself. The district court postponed the FL, for plaintiff-appellant [31] When granting an av, m'd of attor- trial in this case no less than eight times, Shirley Jean McEacherr ney's fees, the' district court must multiply forcing the attorneys for both sides to pre- the number of hours reasonably expended by bach, Daniel M. Bachi, Sel a reasonable, hourly rate. Hens/ey v. Ecker- pare for trial repeatedly. Marion & Espy, P uq., W. hart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, The district court's memorandum decision for defendant-appellee. 76 L.Ed~,d 40 (1983). The court may then on the award of attorney's fees, provides a Appeal from the Unit adjust this "lodestar" to reflect the results well-reasoned and comprehensive discussion Court for the Southern obtained. Hen~/ey, 461 U.S. at 435-37, 103 of the facts supporting the court's award of (No. 91.-6653-CIV) Shelbs' S,Ct. at 1940-41. We review the district fees. The record reveals that the attorney's court's award of attorney's fees for an abuse fees were both reasonable and necessary in of discretion. Popham v. City of Keunesaw, order to properly litigate this case. Because Before' KRAVITCH, A 820 F.2d 1570, 1581 (llth Cir. 1987). Because the record supports the district court's deter- EDMONDSON, Circuit MEMO To: City of Delray Beach From: Weiner, Morici & Aronson, P.A. Subject: Mirador at Sherwood Date: December 8, 1997 I. PURPOSE: The purpose of this Memorandum is to demonstrate why the decision by the Planning and Zoning Board of the City of Delray Beach, Florida at the meeting of November 17, 1997 with respect to the Master Development Plan Modification for Mirador at Sherwood Forest, a 108 unit rental development located at the intersection of West Atlantic Avenue and Sherwood Forest Drive, Agenda Item Ilia (the "Project") was incorrectly denied. II. FACTS.' Attached hereto as Exhibit "1" is the Memorandum from Weiner, Morici & Aronson, P.A. supplied to the Planning and Zoning Board which explains the application made by Mirador Corporation. Attached hereto as Exhibit "2" is the Staff Report of the Planning and Zoning Board as revised from the meeting of November 17, 1997 (the "Staff Report"). In summary, the Project proposed by Mr. Frank DiMisa on behalf of the Mirador Corporation, as purchase vendee (the "Applicant") was for the Modification to a Master Development Plan at the property known as Sherwood Park. The Modification would allow a 108 unit multi-family rental development. III. REASON FOR REVERSAL: A. THE COMPREHENSIVE PLAN OF THE CITY OF DELRAY BEACH AND THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH COMPEL THE GRANTING OF THIS PROJECT. The Comprehensive Plan designation under the Comprehensive Plan for the City of Delray Beach, Florida (the "Comprehensive Plan") for the Project is medium density residential, which is five (5) to twelve (12) units to an acre. The zoning for the property is "PRD" pursuant to Section 4.4.7 of the Land Development Regulations of the City of Delray Beach, Florida ("LDR"). The plain language of the ordinance states: "The Planned Residential ("PRD") District provides a residential zoning district with flexible densities in which multiple family and single family detached dwellings are designed together .... "(emphasis added). Further, Section 4.4.7 (H)(1) states that "The density for a PRD is established by a numerical suffix affixed to the designation and shown on the zoning map .... If there is no density suffix, then the maximum density shall be as allowed by the Future Land Use Map." Here there is no density suffix, so there must be at least five (5) units to the acre allowed. The request that was denied was for 3.10 units per acre. Where the law is abundantly clear as it is in this case, Florida courts protect the rights of City of Delray Beach Page 2 December 8, 1997 the owners and applicant. See Colonial Apartments. LP v. City_ of Deland, 577 So.2d 593 (5th Dist. 1991) in which the Court said that when the law establishes a specific allowable density, its clear terms cannot be varied. B. THE DECISION DENYING TIlE PROJECT WAS CONTRARY TO THE EVIDENCE SUBMITTED AT THE HEARING. The evidence submitted at the hearing was from Michael S. Weiner, an attorney specializing in Land Planning, Mr. Robert Basehart, a Land Planner and former Executive Director of Planning, Zoning and Building for Palm Beach County, Florida, Ms. Yvonne Ziel, a traffic consultant and members of neighboring communities and citizens of the City of Delray Beach, Florida. In no manner did the citizens speaking against the project establish their credentials. In each and every instance, their complaints were met with changes in the proposed Project or by expert testimony. Accordingly, there was no substantive testimony on which the Board could deny this Project. See BML Investments v. City. of Casselberry, 476 So.2d 713 (5th Dist. 1985), rev. denied, 486 So.2d 595 (Fla. 1986). C. THE CITY IS ESTOPPED FROM DENYING THIS PROJECT HAVING RECEIVED A BENEFIT AT THE TIME OF THE ORIGINAL ANNEXATION OF TI-II$ PROPERTY AND HAVING GIVEN THE OWNER AND APPLICANT A RIGHT TO RELY UPON THE ACTIONS OF THE CITY. Attached as Exhibit "3" is the letter from Paul Dorling dated January 4, 1989 to the City Attorney dated January 4, 1989 and the letter from Paul Dorling to Anderson & Cart, Inc. Dated October 4, 1991. These letters confirm that upon annexation of this property to the City of Delray Beach, Florida, the entire property was annexed into the City by Ordinance 80-88 with a zoning of Planned Residential Development, Low to Medium Density and a condition of this approval was the continued dedication of land as a golf course. This is also reitreated in a Staff Report of the Planning and Zoning Board, City of Delray Beach, meeting date July 18, 1988 (continued from June 20, 1988). Accordingly, having extracted at the time of annexation the requirement that the golf course be restricted to that use and having on a previous occasion made allowance for the first portion of this development to use the golf course as open space, this issue cannot be reversed. The zoning for PRD is quite explicit that the whole project must be considered together and the Planning and Zoning Staff on a number of occasions in the Staff Report made this interpretation. They have requested integration on such things as City of Delray Beach Page 3 December 8, 1997 roadways, sidewalks and other common areas. They cannot take such portions of the integration which they believe is to their benefit and deny other portions which were previously part of the annexation. The elements of equitable estoppel surely exist in this situation. There has been the property owner's good faith reliance on the act of the government. There has been a substantial change in position so it would be highly inequitable and unjust to destroy the rights acquired. See Equity_ Resources. Inc. v. County_ of Leon, 643 So.2d 1112 (lst Dist. 1994). The homeowners of Sherwood Forest and for that matter, all of the residents of the City of Delray Beach, Florida received the benefit of dedicated open space, namely a golf course, and in turn, this golf course has been counted as open space for a portion of the PRD. The PRD is part of a single master plan and is being treated by the City as an integrated whole. The previous acceptance of the use of this open space to meet requirements for Sherwood Forest means that it must be utilized in connection with the remaining area to be developed. This is true not only for the counting of open space but for the method for computing density. D. THE DUE PROCESS RIGHTS OF THE OWNER AND APPLICANT ARE VIOLATED AS A RESULT OF THE CITY'S REINTERPRETATION OF THIS ORDINANCE. DEPRIVING THEM OF THEIR ABILITY TO DEVELOP THE PROPERTY. RESULTING IN A TAKING OF PROPERTY WITHOUT COMPENSATION. If any other interpretation of the ordinances and action of the City were applied, it would amount to a denial of substantive due process under the United States Constitution, Amendment 14 as well as a taking of property without compensation under the United States Constitution, Amendment 5. Moreover, this interpretation would mean that the City has taken an action that inordinately burdened, restricted and/or limited the private real property fights of the owner. The owner deserves relief, including compensation for actual loss pursuant to Florida State Statute Section 70.001, commonly known as the Burt J. Harris, Jr. Private Property Rights Protection Act. The elements of a breach of substantive due process have been met in that the City acted arbitrarily and capriciously in the reinterpretation of an ordinance where an earlier interpretation allowed the first portion of this PRD to be built. This decision cannot be reversed. If there is a reversal of such a decision, the value of the owner's land has been City of Delray Beach Page 4 December 8, 1997 significantly impacted and a final decision by this City Commission would constitute a taking, there having been interference with reasonable investment-backed expectations. See Resolution Trust Corn_ oration v. Town of Highland B each, 18 F. 3 d 1536 (11 th Cir. 1994). Alternatively, the denial of this Master Development Plan Modification would be an action that would inordinately burden, restrict and/or limit the private real property rights of the owner and the owner would be entitled to relief under Florida State Statutes Section 70.001, commonly known as the Burt J. Harris, Jr. Private Property Rights Protection Act. IV. CONCLUSION. The City Commission must reverse the decision of the Planning and Zoning Board because: (i) the plain language of the ordinances and Comprehensive Plan require that the Modification be granted; (ii) there was no substantial competent evidence offered to the contrary at the hearing; and (iii) the City is estopped from taking a contrary action as a result of the conditions under which annexation took place. If the City afftrms its positions, then this action amounts to a denial of due process, and a taking without compensation. Alternatively, the owner deserves relief pursuant to Florida State Statutes Section 71.001. MSW/mph W:\WORK~IlRC002\crrYMEMO.D05 TO: City of Delray Beach FROM: Weiner, Morici & Aronson, P.A. RE: Mirador at Sherwood APPLICANT: Mirador C~rpomtion : I. PURPOSE: The purpose of this memorandum is to explain the law applicable to the approval of the Master Development Plan submitted by the applicant for.multi-family dwelling project located on the south side of West Atlantic Avenue near the intersection of Barwick Road 'and West Atlantic Avenue in connection with the Land Development Regulations ("LDR") and Comprehensive Plan of the City of Delmy Beach, Florida. II. FACTS: Mr. Frank DiMisa on behalf of the Mirador Corporation, as purchase vendee (the "Applicant") has placed before the Planning and Zoning Board of the City of Delray Beach, Florida an application which includes a Master Development Plan, and information required by Section 2.4.5(F) of the LDR (collectively the "Master Development Plan'') for Mirador at Sherwood Park, a proposed 108 unit multi-family rental development, located on the south side of West Atlantic Avenue at the intersection of West Atlantic Avenue and Barwick Road (the "Project"). The property is presently owned by Sherwood Park Golf, Inc. The zoning designation is PRD (Planned Residential Development). Adjacent zoning includes open space recreational, neighborhood commercial, general commercial, planned office commercial, community facilities and low density residential. Bordering the property is a bank building, commercial and retail uses, including a gas station, a school, single family homes and an operating golf course. The Project is within a PRD which was annexed into the City in 1988. As a part of that annexation and original zoning, the City required that the goff course be restricted to use as a golf course. This restriction remains in force and effect. IlL LA.~: A Planned Residential Development must meet a three-part test. The first part are the requirements under Section 4.47 of the LDR. The second test is an overall test that relates to all development orders for the City of Delray Beach in accordance with Section 3.1.1 of the LDR. The third test relates to compatibility with the Comprehensive Plan. In this particular instance, the applicant, has met his burden of proof with respect to these tests and deserves approval of the ProjecL A. Section 4.4,7, This is a project for 10g multi-family units. There are 125 single family units built in this particular PRD. Therefore, at least fifty percent (50%) of the units are single family detached units. As the staff notes, the overall density is 3.10 units per acre and this is below the 6 units per acre required under the Code. Fifteen percent (15%) of the gross area is common open space. The site has more than five acres. Through the use of certain design features, the Applicant has also met each of the requirements under Section 4.47(1-1) of the LDRo B. ~ The general performance standards under Section 3.1.1 of the LDR, have four categories. 1. With respect to the Future Land Use Map, this project meets the requirements as it is a multi-family project within a land designation of medium residential density. 2. With respect to concurrency, the Staff Report states that positive findings should be made in each and every category of concurrency without reservation. 3. With respect to consistency, while it would be impossible to be consistent with the six different zoning categories that surround this Project, based upon the testimony of experts, this Project mosts "fits" with eoch and every surrounding zoning designation. Its beneficial aspects outweigh any negative impacts. 4. As to consistency with the Comprehensive Plan and the Land Development Regulations, this will be dealt with in more detail below. C. Comprehensive Plan. The third test deals with the Comprehensive PlarL The Project must be consistent with the Comprehensive Plan that is presently enacted. A proposed Comprehensive Plan, no matter how well meaning, does not have the force of law. With respect to this present Comprehensive Plan for the City of Delray Beach, Florida, Objective C-3 of the Housing Element states that the development of new land shall result in the provision of housing which meets a wide range of economic abilities. Approval of this particular project will in fact meet that objective. It goes on to say that housing for moderate and middle income families shall be achieved through increases in density. In this particular instance, the Applicant is not even asking for a zoning increase. The applicant is only asking the density, allowed within this classification, be approved. Accordingly, consistency with the Comprehensive Plan is met. Thc Staff Report of the City refers to five additional Comprehensive Plan policies. The staff agrees that three of those five policies are met, namely Land Use Element Policy A-3.1, Open Space and Recreation Element Policy B-1.4 and Conservation Element Policy B-2.2. As to the two re 'maining' items, Stoff's only quarrel is with density and that thin Project may be "a large scale adult oriented community". As to density, the density of this Project is less than eight of the eleven projects that they mentioned in their Staff Report. Two of those projects are at 3.00 units per acre and this project is 3.1 units per acre. Only one project is si~,nificantly lower. Given the scheme of the original annexation, there can be no quarrel with density. Large scale adult oriented communities are a reference to King's Point type developments where the policy is to market towards a retirement community. This is not the case. In no event can 108 units be called large scale and in no event will this community be oriented towards an "adults only" market. There has been significant compromise for tot lots and similar amenities. IV. CONCLUSION. As you know, the Master Plan Development is before you in a quasi- judicial proceeding and must be conducted so as to factually determine if the Master Development Plan conforms to specific requirements. Park of Commerce v. City_ of Delray Beach. 606 So.2d 633 (4th DCA 1992) at 635, afl& 636 So.2d 12 (Fla~ 1994). In this instance the applicant has met each and every specific requirement. See also: Southern Cooperative Development Fund v. Driggers, 696 F.2d 1347 (1 lth Dist., 1983) reh. den. 703 F.2d 582, cert. den. 103 S. Ct. 3539. Ci.ty National Bank of Miami v. Ci_ty of Coral Springs, 475 So.2d 984 (4th DCA 1985); Gjty of Lauderdale Lakes v. Corn, 427 So.2d 239 (4th DCA 1983). This PRD meets the exact intent of the zoning in that flexible densities in which multi-family and single family detached dwellings are designed together. This was the original intent when the PRD was annexed into the City. The applicant has the right to rely upon these acts. Fx~_ulty Resources. Inc. V. County. of Leon, 643 So.2d 984 (lst DCA 1994); Resolution Trust Co _rpomfion v. Town of Highland Beach. 18 F.3d 1536 (1 lth Cir. 1994). There has been some comments from citizens. Certainly, citizens have a fight to speak at quasi judicial hearings, but the opinions of neighbors by themselves are insufficient to support a denial of the proposed development. Ordinances must be interpreted in accordance with their plain meaning. Colonial Apartments. L.P.v. City_ of DeLand. 577 So.2d 593 (Sth DCA, 1991). LLOIO~J AUTC~U011~ Z PIAN I AND 70 I G BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: November 17, 1997 (Continued from the October 20, 1997 Meeting) AGENDA ITEM: ITEM: Master Development Plan Modification for the Mirador at. SherwoOd Forest, a 108-Unit Rental Development, Located at the Intersection of W. Atlantic Avenue and Sherwood Forest Drive. GENE-~L DATA: ~er. ............................................ She~ Pa~ Golf, Inc. ~plimn[ ....................................... Mi~dor ~[on, a Florida ~. Agen[ ........................................ .~... Mi~a~ Wein~ L~[on ......................................... ~u~ s~e of W. ~ Avenue, at ~e inte~ofl of W. A~an~c Avenue and She~ Fo~t D~e. Pm~ s~e........; ...... F~m ~d Use.Map ~a~n. M~iUm ~s~ R~~I (~12 un~a~) ~ng Zoning ..... ; ........... ~ .............. PRD (Pia~ R~en~l ~v~p~nt) ~jamnt Zoning ................... No~: NC (Neigh~ ~m~a~, GC (General ~mm~al), & CF (~mmun~ Fading) ~s~ R-1-A (Single Family R~en~l) S~: OSR (Open S~ & R~n) & PRD Wes~ PRD ~isfing ~nd Use .......................... She~ Pa~ golf mu~ d~ing range and vamnt la~d P~s~ ~nd Use ....................... Cons~ofl of a 10~fl~ mul~ple ~mily mn~l development ~ ass~ated ~Nng, lafldmping, and m~n fidiS. Water ~i~ ................................ Availa~e ~a a ~fln~ to ~g 8' ~t~ mai~s at fie no.east ~nd no~t ~mem of ~e site, adja~nt to A~n~ Avenue. 8~er 8e~i~ ................................ Available v~ ~o~s to an e~s[~ 8' ~er miff at fie no.west ~mer of ~e site, and a 4' fo~ ~in on ~e west side of Shewed Forest D~e, adja~nt to Bame~ ~nk. III.A. The action before the Board is that of approval of a Master Development Plan modification to the Sherwood Forest subdivision to accommodate Mirador at Sherwood Forest (apartment complex) pursuant to LDR Section 2.4.5(F)(6). The subject properties are located at the southwest and southeast cbtners of West Atlantic Avenue and Sherwood Forest Dfive/Barwick Road and contain approximately 9.08 acres. Pursuant to LDR Section 2.4.5(F)(6), the application is to be processed as a site plan modification. The development proposal is being processed as a major site plan modification, therefore LDR Section 2.4.5(F)(5) applies., Pursuant to LDR Section 2.2.2(E)(7), the Local Planning Agency (P&Z Board) has the authority to take action on modifications to Master Development Plans. The properties under consideration consist of Tracts G-1 and G-2, Sherwood Forest Plat No. 1, and total 9.08 acres. The properties are the outparcels of the overall 74.91 acre Sherwood Forest planned residential development. Tract G-1 consists of 4.3 acres and is the site of the driving range for the Sherwood Forest golf course. Tract G-2 is 4.78 acres and is a vacant parcel of land comprised of the tee area for hole #2 of the golf course at the southwest comer of the site, a golf cart path, and existing vegetation consisting Primarily of mature Slash Pine trees. At its meeting of August 23, 1988, the City Commission held first reading of a voluntary annexation request for the 74.91 acre Sherwood Park Golf. Course property with initial zoning of PRD-L (Low - Medium Density Planned Residential Development District) zone district for the south 65 acre portion of the site, and ART (Agricultural Residential Transitional) zone district for approximately 10 acres fronting Atlantic Avenue. The ART portion of the site (driving range and vacant land) was proposed as a "holding zone" until such time that the site was rezoned to accommodate a spec'Nc development proposal. During processing of the application the City was in the process of writing its Comprehensive Plan and . creating the. associated Future Land Use Map. Future rezoning of the ART portion was to be based upon the proposed underlying Future Land Use Map designation which was to be either Medium Density Residential 5-12 dulac or Transitional. The PRD,L portion of the site was .to accommodate the existing -_ golf course which was to be surrounded by zero lot line single family homes. At the first reading of the annexation ordinance, the City Commission recommended that the PRD-L also be applied to the properties fronting Atlantic P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 2 Avenue (instead of the ART), which was agreed to by the applicant. Following the direction from the Commission the request was withdrawn and re-advertised with the revised zoning of PRD-L. Subsequently, at its meeting of October 11, 1988, the City Commission approved the voluntary annexation of the entire Sherwood Park Golf Course property with the PRD-L (Low - Medium Density Planned Residential Development District) zone district. In conjunction with the Annexation, requests for Conditional Use and Site Plan approval, and an Abandonment of Forest Road were also being processed for the construction of a 131-unit single family zero lot line subdivision which would surround the existing golf course. The request was subsequently modified to accommodate 125 units. At its meeting of August 23, 1988, the City Commission approved the Conditional Use and Site Plan with conditions. One of the conditions related to the execution of an agreement between Sherwood Park Golf, Inc., She[wood Forest Homeowner's Association, Inc., and the City of Delray Beach. The agreement was to restdct the development potential of the current golf course to an executive golf course, clubhouse and pre shop for 25 years, with 10-year automatic successive renewal pedods (unless revoked in writing by all parties). The dedication is a covenant running with the land and is binding upon Sherwood Park Golf, Inc. and its successors and assigns. Other conditions included that 1/3 of the lots contain 3 bedroom units to promote the family nature of the development; and a single story limitation on some of the lots adjacent to the Hamlet. The Board also made the determination that the residential development is integrated with the golf course to the extent that there is sufficient common open space. The development proposal included upgrading of the golf course clubhouse and a second floor addition to be dedicated for use by the Sherwood Forest Homeowners Association and that the homeowners have golf course membership opportunities. On October 25, 1988, the City Commission approved the abandonment of Forest Road. At its meeting of Apdl 25, 1989, the City Commission approved the final plat for the Sherwood Forest PRD. With the adoption of the City's Comprehensive Plan and Future Land Use Map in November 1989, the FLUM designation for the Sherwood Golf Course PRD was changed from Single Family to: Low Density Residential (0-5 du/ac) for the single family component; Recreation and Open Space for the golf course; and Medium Density Residential (5-12 du/ac) for the outparcels fronting Atlantic Avenue (ddving range). With the adoption of the City's Land Development Regulations and Zoning Map in October 1990, the residential components (Iow density and medium density) of the Sherwood Forest PRD were rezoned from PRD-L to PRD (Planned Residential Development) and the golf course was rezoned from PRD- L to OS (Open Space). P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 3 At its meeting of February 24, 1992, the Planning and Zoning Board approved a minor site plan modification for the single family component of the Sherwood Forest PRD to reduce side setbacks for 18 lots and rear setbacks for 7 lots. In February of 1993, the City Commission gave direction to staff to create a zoning district which accommodated primarily outdoor recreational uses such as ballfields and golf courses. The resulting zoning distdct was OSR (Open Space and Recreation). In conjunction with the text amendment, rezonings were processed for the properties to which the new zoning distdct was to be applied. On June 21, 1994, along with vadous properties, the 37.31 acre Sherwood Golf Course was rezoned from OS (Open Space) to OSR. A master development plan modification application has been submitted to construct an apartment complex on the Sherwood Forest outpamels, which front Atlantic Avenue, and is now before the Board for action. The project involves construction of a 108-unit apartment complex on the outparcels of the Sherwood Forest planned residential redevelopment. The development proposal incorporates the following: El Construction of 4 apartment buildings consisting of a 1 two-story building with 20 units and 1 three-story building with 24 units on the west parcel; and 2 three-story buildings with 32 units each on the east parcel for a total of 108 units; El Construction of an interior access road on each parcel with gates at each entrance, and the construction of 234 asphalt/surface parking spaces (140 spaces on the east parcel and 94 spaces on the west parcel); El Construction of a recreational facility at the southeast comer of the west parcel (Tract G-2) adjacent to the golf course and Sherwood Forest Drive/Barwick Road which includes: a one-story 3,360 sq.ft, recreation building/clubhouse; a 1,000 sq.ff, swimming pool and a deck; and, a 1,400 sq.ft, tot lot at the southeast comer of the clubhouse; Installation of an 800 sq.ff, tot lot on the east parcel (Tract G-l), on the south side of the property adjacent to Sherwood Forest Drive; El Installation of a 6' high black vinyl coated chain link fence along Atlantic Avenue and a decorative metal fence with concrete columns along the south side of both parcels; and, P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 4 Installation of associated dumpster areas and landscaping throughout the site. COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS Items identified in the Land Development Regulations shall specifically be addressed by the body taking final action on the site and development application/request. LDR Section 4.4.7{F) (PRD - Development Standards): Pursuant to LDR Section 4.4.7(F)(2), the following standards apply to the overall development project: (a) At least 50% of the units must be in single family detached units where the overall density is six units per acre or less, or at least 40% where the overall density is greater than six units per acre; With the proposal for a 108-unit multiple family development in addition to the existing 125 single family dwellings, the Sherwood forest PRD w~ll have an overall density of 3.10 units per acre including the golf course and 6.19 units per acre excluding the golf course. Under either scenario, over 50% of the units will be single family detached units. However, density for this specific development is calculated at 11.84 or 12 units per acre, as the project is to function as a stand-alone multiple family apartment complex. (b) 15% of the gross area of the site must be placed in common open space where the overall density is six units per acre or less, or at least 20% where the overall density is greater than six units per acre; The site data utilizes the entire golf course and the recreation facilities of the single family component to meet open space requirements. However, unless the proposed development provides memberships to the golf course and has the ability to utilize the recreation facilities of the single family development, this requirement will not have been met. As the intent is for the proposed development to function totally separate from the single family component and the golf course, then 20% or 1.82 acres of common open space must be provided. The current proposal provides only % an acre of common open space. If this requirement cannot be complied with, then the intent of the PRD zone district has not been met and it would be more P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 5 appropriate to rezone the property to either RL (Low Density Residential) or RM (Medium Density Residential). (c) Minimum site area is five (5) acres The subject property is 9.08 acres of an overall 74.91 acre development, which exceeds the minimum required site area of 5 acres. LDR Section 4.4.7 (.H) (.PRD - Special Regulations): LDR Section 4.4.7(H)(1) (Density): The density for a PRD is established by a numerical suffix affixed to the designation and shown on the zoning map i.e. PRD-8 limits the density to eight units per acre. To seek a density greater than that shown in such a manner, it is necessary to rezone the property. If there is no density suffix, then the maximum density shall be as allowed by the Future Land Use Map. The underlying Future Land Use Map designation for the outparcels is Medium Density Residential, 5-12 du/ac. As there is no numerical suffix affixed to the zoning designation, the density range of the Medium Density Residential land use designation applies. Any future development of the properties in question should be consistent with the densities of the surrounding residential developments. LDR Section 4.4.7(H)(2): prior to approving a Master Site Plan for a PRD, the Planning and Zoning Board must make findings that: (a) The development plan provides for an effective and unified treatment of the development potential of the site, making appropriate provisions for the preservation of scenic features and amenities of the site. MeaSures are being taken within the development plan to preserve the existing Slash Pine trees and views of the golf course are provided for most of the units. However, the development is not well integrated nor unified with the existing single family subdivision. By virtue of the density and character of the proposed buildings this development will function separately from the existing community. (b) The development plan fosters harmony with existing or proposed development in areas surrounding the site. The proposal is to construct a multiple family rental complex with a density of 12 units per acre. The subject property represents an entrance to a low P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 6 density, owner-occupied single family development which surrounds a golf course. In order to promote harmony and consistency with the existing PRD and surrounding communities, consideration should be given to developing the site as townhouses or villas, or a combination of the two. The density should be similar to other densities approved for multi-family components associated with other planned development districts, which typically have not exceeded 8 units per acre. Also, the proposal includes 3 story buildings with a height of 34'8" and 234' in length. The mass of these buildings is not harmonious with the single family component of the PRD. Therefore, the scale of the building should be reduced with a maximum of 2 stories. (c) Buildings in the layout shall be an integral part of the development and have convenient access to and from adjacent uses and blocks. The proposed apartment complex does not meet this standard due primarily to existing site conditions and the original layout of the PRD. Access to the single family homes is gated, and the rental development itself is physically divided by Sherwood Forest Drive. This standard will be difficult to achieve regardless of the type or intensity of development. (d) In the multiple family portion, individual buildings shall be related to each other in design, masses, materials, placement, and connections so as to provide a visually and physically integrated development. Treatment of the sides and rear of buildings shall be comparable in amenity and appearance to the treatment given to the front. The apartment buildings and the clubhouse are related in terms of design, materials and mass. The buildings will not be visually or physically integrated as the development is bisected by Sherwood Forest Drive,-thus isolating one-half of the development from the other. The sides of the buildings need additional architectural details in order to be comparable to the front and rear of the structures. (e) The landscape treatment for plazas, streets, paths, and service and parking areas shall be designed as an integral part of a coordinated landscape and street furniture design. The proposal is to locate the buildings as far south as possible, away from Atlantic Avenue. This requires the provision of the sidewalks on the north side of the buildings adjacent to the parking areas. It seem appropriate to provide a pedestrian path west of the clubhouse to the westernmost P & Z Board Staff Report Mirador at ShenNood Forest (Apartment Complex) - Master Development Plan Modification Page 7 buildings. Also the sidewalk which dead-ends at the clubhouse parking area must continue around the parking lot. A 30' landscape buffer is required along Atlantic Avenue and trees will be provided along the access roads and within the parking areas. The 30' landscape buffer is to consist of hedges, existing Live Oak trees, and a black vinyl coated chain link fence. This proposal includes of a decorative metal fence with concrete columns every 20 feet along the south side of the property. As the Atlantic Avenue frontage is over 1,000 feet in length, this treatment must also be provided along Atlantic Avenue rather than the proposed chain link fence. The fence must either be set back 30' from the ultimate right-of-way line or integrated into the landscape design. While the landscape plan attempts to utilize the existing Live Oak trees, the landscape buffer should be more undulating and include the installation of landscaping to the interior edge of the 30' landscape buffer. This standard will be further addressed at the time of final site plan review. It appears that there should be no problems complying with this standard. (f) The location, shape, size, and character of the common open space must be suitable for the contemplated development in terms of density, population characteristics, and housing types; As stated under LDR Section 4.4.7(F)(2)(b), there are concerns with the amount of common open spaces provided on this site. Given the property's location and its proximity to area schools, there is a good opportunity for children, including teens, to reside at this development. The proposal provides a 3,360 sq.ff, recreation building/clubhouse; a 1,000 sq.ft, swimming pool and a deck; and, a 1,400 sq.ft, tot lot at the southeast comer of the clubhouse, and an 800 sq.ft, tot lot on the east parcel (Tract G-l) on the north side of the Sherwood Forest Drive. In addition to the proposed facilities, other recreational facilities must be provided for teens (i.e. ballfield, basketball court, racquetball courts). The proposed recreation facility is somewhat centrally located, adjacent to the golf course and Sherwood Forest Drive. The pool is of sufficient size to accommodate the demands of the development. While tot lots have been provided one is located adjacent to the golf course fairway and another is located within a narrow dry retention area. There are concerns with the golf balls slicing into the tot lot and the functionality of the tot lot on the east parcel. Thus, the tot lots must be relocated to areas where safety concerns will be diminished and the lots will function properly. P & Z Board Staff Report Mirador at Shenvood Forest (Apartment Complex) - Master Development Plan Modification Page 8 (g) Common open space must be used for amenity or recreational purposes and must be suitably improved for its intended use. Natural features, worthy of preservation, shall be incorporated into the common open space system; The recreation area will be improved with a tot lot, swimming pool and clubhouse. As identified above, a recreational facility that accommodates teens must be provided. Attempts are being made to incorporate the existing existing slash pines into the recreation area. It may be appropriate to install a bar-b-que area and a basketball court adjacent to the clubhouse. (h) Roads, pedestrian ways, and open space shall be designed as an integral, part of the overall design and shall be properly related to buildings and appropriately landscaped; The roads, pedestrian ways and open space have been designed to be integrated as much as possible with the rest of the PRD. Landscape plans have not been provided for the areas adjacent to the buildings, roadways or pedestrian ways. This item will be further addressed at the time of site and development plan review. (i) There shall be an adequate amount of pedestrian ways and landscape spaces to limit pedestrian use of vehicular ways, and to separate pedestrian ways and public transportation loading places from general vehicular circulation; Pedestrian ways are proposed which will provide adequate separation, however, adjacent to the clubhouse parking area, a sidewalk connection must be provided, as well as other connections on the west parcel from the stairwells to the sidewalks. (j) The location .and design of pedestrian ways should emphasize desirable views of new and existing development. The location and design of the proposed pedestrian ways do not emphasize desirable views of the existing golf course. As previously stated, the parking areas and the associated pedestrian ways are located on the north sides of the buildings to separate the project from Atlantic Avenue. It is possible to provide a pedestrian path along the south side of the west buildings to the clubhouse which will provide a view of the golf course. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 9 (k) Tot lots and recreational areas shall be a feature of all new housing developments which utilize PRD zone districts. (OSR A-3.3) The development proposal provides two tot lots; one adjacent to the clubhouse area (west parcel) and one on the south side of the east parcel. The tot lot adjacent to the clubhouse is located adjacent to the fairway which is an unsafe situation. The tot lot on the east parcel is located within a narrow dry retention area. It is apparent that there has been no significant thought given to the location of the tot lots and their functionality. The tot lots must be relocated to eliminate the conflicts. It may be possible to locate the clubhouse tot lot northwest of the building and west of the clubhouse parking area. If the modification is approved, details of the type of playground equipment to be placed within the tot lot must be submitted with the site plan application and approved by SPRAB. LDR Section 4.3,4{H), (Special Landscape Setbacks): Pursuant to LDR Section 4.3.4(H)(6)(b), a 30' landscape setback must be provided along Atlantic Avenue, as the property is over 300 feet in depth. Within a special landscape setback, no structures shall be altered, erected, or reconstructed; nor shall any paving be allowed except for driveways and sidewalks which lead to structures on, or provide access to, the site and then only when generally perpendicular to the frontage. However, waivers may be granted to these restrictions at the time of the site plan review in order to accommodate landscape feature, decorative walls, meandering sidewalks,' and other decorative pedestrian ways. The 30' wide landscape buffer has been provided except for a short distance on the west parcel where the access read encroaches into the required 30' buffer by approximately 8'. The reason for the encroachment relates to an attempt to save existing pines and palms within a landscape median. In this situation it may be appropriate to allow the encroachment which is only 100 feet in length. The fence proposed within the landscape island must be located on the interior edge of the 30' wide landscape buffer, whereas it is only set back 15'. LDR Secti¢l~ 4.3,4(K) Development Standards Matrix: Building Height Within the PRD zone district, the maximum building height is 35' and the proposed 3-story apartment buildings will have a height of 34'8", the 2-story apartment building will have a height of 25', and the clubhouse will have a height of 22'. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 10 Perimeter Building Setbacks Within the PRD zone district 1 and 2 story multiple family buildings require a front and side street setback of 25', side intedor setback of 15', and a rear setback of 25'. The 3 story multiple family structures require a 30' front and side street setback, and a 25' side interior and rear setback. VVhile the majority of the buildings comply with the setback requirements, on the east parcel a corner of the west building and a support/decorative column for the east building are only setback 28' where 30' is required. The plans must be revised so that the buildings meet the setback requirements. LDR Chapter 4.6 Supplementary_ District Regulations: LDR Section 4,6,9 (Parking Requirements) Bicycle Parking ~ Pursuant to LDR Section 4.6.9(C)(1)(c), at private recreation facilities, bicycle parking areas shall be provided in a designated area and by a fixed or stationary bike rack. The proposal does not indicate a bike rack at the clubhouse building. Vehicle Parking Pursuant to LDR Section 4.6.9(C)(2)(c), 225 spaces are required for this development and a total of 234 spabes are proposed. The guest parking has been distributed on the 2 separate parcels as if they were stand alone parcels. The actual calculations differ from those indicated under site data. Thus, the site data must be revised accordingly. Stacking Distarlce Pursuant to LDR Section 4.6.9(D)(3)(c)(2), provisions must be made for stacking and transition of incoming traffic from a public street, such that traffic may not backup into the public street system. Provisions must be made to provide 100' of clear stacking in advance of all guardhouses or security gates. Further Section 4.6.9(D)(3)(c)(3) states that greater stacking distance may be required as a condition of approval, and the stacking area can be reduced when supported by a traffic study. The proposal indicates that a 50' stacking distance is being provided for both entrances from the call box to the right-of-way line for Sherwood Forest Drive. Each access driveway provides two lanes: one for residents and one for guests. As the development is separated, the number of vehicular trips entering and exiting each entrance is approximately 50% less than that which would occur if P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 11 all the units entered the development from one access point. With the residents and guest having separate entrance lanes, delays are reduced significantly. This situation has been approved with other development proposals where dual entry lanes were provided. Thus, the intent of the code has been met. Back-out Parking Pursuant to LDR Section 4.6.9(D)(2)(c) (Provisions for Ingress and Egress), each required parking space shall be accessible at all times. Access which conforms with minimal aisle standards and which includes maneuvering area so that a vehicle must be able to enter and exit the parking area onto a street or alley in a forward manner shall be provided when the street is a private street within a planned development and the street, at the location of the parking, has less than 200 ADT. As the portion of the primary access road on the west half of the east parcel exceeds 200 ADT, back-out parking is not permitted. On the north side of the east parcel, the parking lot is designed so that vehicles must back-out into the access road. The parking lot is design with a K intersection which is an unsafe design and may encourage those utilizing the access road to "cut through" the northwest parking area. It is more appropriate to eliminate the parking lot driveway onto the access road and direct vehicular traffic towards the parking lot to the south. This must be addressed with the site plan submittal. LDR Section 4.6.16 (Landscape Requirements): Pursuant to LDR Section 4.6.16(H)(3)(k). whenever parking tiers abut, they shall be separated by a minimum 5' wide landscape strip. The strip shall be in addition to the parking stall. Nonmountable curbs are not required for these landscaping strips, providing carstops are provided. At the northwest comer of the west parcel, the required landscape strip between parking tiers has not been provided. Pursuant to LDR Section 4.6.16(H)(3)(d). a landscaped barrier shall be provided between off. street parking area or other vehicular use area and abutting properties. This landscape barrier shall be located between the common lot line and the off-street parking area or other vehicular use area in a planting strip of not less than 5' in width. On the east and west parcel, where the north side of the parking area abuts the ; interior access road, this requirement has not been met. ~ P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 12 In order to obtain relief from the above requirements, a waiver request must accompany the site plan application with action by SPRAB (Site Plan review and Appearance Board). Site Plan Technical Items: The following are items that do not require specific action of the Board, however, the items must be addressed with the submittal of revised plans. 1. Site lighting fixture details must be provided on all plans and a photometrics plan must be provided which comply with LDR Section 4.6.8. 2. Pursuant to the Sherwood Forest Plat No. 1, there shall be no buildings or construction of any kind utility or drainage easements. Along the east side of the property, adjacent to the Hamlet, the parking area and fences encroach into the 20' utility easement and the a/c units are proposed within the easement. The east portion of the site must be modified to eliminate the encroachments.. 3. The floor plans indicate that a meter room will be provided on the east side of the buildings which has not been delineated on the site plan. Thus, the meter room for the easternmost building will encroach into the 20' utility easement which is prohibited per the plat. The meter room and stairwells are included as part of the building, thus their locations must be indicated on the site plan to ensure that building setback requirements are met and encroachments into utility easements do not occur. 4. Details of the mail kiosks must be indicated on the plans. The kiosk on the west parcel should be located on the south side of the parking area between the apartment buildings. 5. Pursuant to LDR Section 6.1.6 (Traffic Signals), the applicant will be responsible for signalization changes necessary for this development at the Atlantic Avenue and Barwick Road/Sherwood Forest Ddve intersection. 6. On the west parcel, the proposed dumpster enclosure must be odented towards the east so the Waste service vehicles (BFI) can easily access the dumpster. The dumpster should be located across from (west of) the proposed location. 7. The dumpster on the east parcel must not be located on the primary access road, and should not be odented towards the east as BFI vehicles will be entering the site from the west. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 13 8. The drive aisles at the clubhouse parking range in width from 22' to 28'. Pursuant to LDR Section 4.6.9(D)(4)(d), the standard aisle width is 24' and cannot exceed 26'. 9. The clubhouse parking area "cul-de-sac" must have a turning radius of 450 to accommodate emergency vehicles. 10. On the west parcel, the sidewalk on the east side of the apartment building must be located further to the east and provide a continuous pedestrian way along the access road. Il. Pursuant to LDR Section 4.6.16(E)(3) (Vehicular Encroachment), all landscaped areas must be protected with type "D" curbing. On the site and landscape plans, no curbing has been indicated adjacent to the landscape areas or islands. 12. Drainage, fire flow and lift station calculations must be provided. 13. A copy of the Lake Worth Drainage District permit, modified South Florida Water Management permit, and HRS water and sewer permits be submitted prior to issuance of a building permit. 14. Sidewalks and pedestrian access consistent with ADA Standards must be indicated on the site and engineering plans. Curb cut ramp details must also be provided. 15.A pavement marking and traffic control plan must be provided. The plan must address marking of the double inbound entrance ddve merge condition, marking of double outbound lanes, stop bars, pedestrian crossings, etc. 16. The invert elevation of the manhole at the northwest comer of the site that will be tied into must be indicated. 17. Hydraulic calculations must be provided for the sizing of the 2" water services to all buildings. The engineering plans must reflect the City of Delray Beach Standard Engineering Details for water and sewer. 18.The City of Delray Beach parking stall striping details must be utilized and indicated on the plans. 19.The swimming pool area must be surrounded be a minimum 4' high fence, which must be indicated on the plans. 20.The landscape plan is inconsistent with the site and engineering plans. All plans must be consistent with each other. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 14 Subdivision Plat A replat of Tracts G-1 and G-2 must be processed for the dedication of easements. The plat must be processed pursuant to Chapter 5 of the Land Development Regulations and recorded prior to issuance of any building permits which has been attached as a condition of approval. With the plat submittal a Declaration of Unity of Title must also be provided and recorded in conjunction with the plat to ensure that the two properties will be unified and under one ownership. Master Property_ Owner's Association The Sherwood Forest Plat No. 1 dedicates Sherwood Forest Drive, prior to the singie family component's entry gates, to the Sherwood Golf Club Master Property Owner's Association. The Association is to consist of Sherwood Forest Homeowners Association, Inc., Sherwood Golf Park, Inc., and the owner's/association of the parcels fronting Atlantic Avenue. With the plat submitta{ the Master Association documents must be provided. Driveway Locations/Conflicts There are concerns with the potential pedestrian and vehicular traffic conflicts at the entrances to the development. Sherwood Forest Drive has a sharp curve at the proposed entrances to the development. Thus, the east driveway and the pedestrian crosswalk may be somewhat obstructed for vehicles traveling from the single family component or the golf course. In order to eliminate potential conflicts, it is appropriate to post signage warning motorists of the driveways and pedestrian walkway along Sherwood Forest Drive at both approaches to the project's entrances. Also, speed humps should be installed to ensure speed reductions at these areas. Pursuant to LDR Section 3.1.t (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, written materials submitted by the applicant, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the following areas: P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 15 (With the site plan approval of August 23, 1988 for the Sherwood Forest single family subdivision, positive findings were made with respect to consistency with the Future Land Use Map, Concurrency, Consistency with the Comprehensive Plan and Compliance with the Land Development Regulations. The following analysis pertains to the proposed 108 unit apartment complex.) Section 3.1.1(A) - Future Land Use Map: The subject property has a Future Land Use Map designation of Medium Density Residential 5-12 du/ac and is currently zoned PRD (Planned Residential Development). The PRD zoning district is consistent with the Medium Density Residential land use designation. Pursuant to LDR Section 4.4.7(B)(3), multiple family structures are permitted within the PRD zone district. Based upon the above, it is appropriate to make a positive finding with respect to consistency with the Future Land Use Map. Section 3.1.'1(B) - Concurrency: As described in Appendix A, a positive finding of concurrency can be made as it relates to water, sewer, streets and traffic, drainage, parks and recreation, open space, and solid waste, providing the conditions of approval are addressed. Section 3.1,1 (C) - Consistency (Standards for Site Plan Actions): The proposal is inconsistent with certain goals, objectives and policies of the Comprehensive Plan, and the Board needs to make a specific finding that the beneficial aspects outweigh the identified points of conflict (per 3.1.1(C)). Section 3.1.t (D) - Compliance With the Land Develo_r)ment Regulations: As described under the Master Development Plan Modification Analysis of this report, a positive finding of compliance with the LDR's can be made, provided the conditions of approval are addressed. Comprehensive Plan P¢licies: A review of the goals, objectives and policies of the City's Comprehensive Plan was conducted and the applicable goals, objectives and policies were identified. Land Use Element Policy A-3.1 - Prior to recommending approval of any development land use application which comes before it, the Local Planning Agency (Planning and Zoning Board) must make a finding that the requested; land use action is consistent with Objective A-3 which states that the development of remaining vacant land shall provide for the retention of open space and natural resources, as provided for under Policy B-2.5 of the conservation element and/or Policy B-1.4 of the Open Space and Recreation Element. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 16 Open Space and Recreation Element Policy B-1.4: New development shall provide central focal points at entries and landscape buffers along the external (arterial, collectors) streets which service them. Back-lofting of individual homes along such streets should be allowed only when special landscape buffers are provided between the rear yards walls or fences and the right-of-way. In order to address this policy, an extensive landscape buffer with decorative fencing must be installed as previously discussed on page 6 and 7, under LDR Section 4.4.7(H)(2)(e). This policy will be further addressed at the time of final site plan review. There should be no problems complying with this policy. Conservation Element Policy B-2.2: Whenever and wherever significant or sensitive flora and fauna communities are identified pursuant to Policy B- 2.1, they shall be preserved as if they were environmentally sensitive areas as identified in Objective B-I. A biological assessment has been submitted indicating that there are no environmentally flora or fauna communities that exist on the site. It is noted however that existing mature slash pines are being retained. Future Land Use Element Objective A-.1 - Vacant property shall be developed in a manner so that the future use and intensity is appropriate in terms of Soil, topographic, and other applicable physical considerations, is complementary to adjacent land' uses, and fulfills remaining land use needs. Physical Cor~$iderafions The property has been disturbed and there'are no physical conditions that would prevent development of the property. Complementary_ With Ad_iacent Land Uses The development proposal is to function as a stand-alone multiple family' apartment complex without the ability to interact with the ShenNood Forest single family component, or the golf course. As a stand alone facility, the project has a · density of 11.84 or 12 units per acre. The multiple family structures will be 34'8" in height, which is insensitive to the adjacent single family development, which consists of one and two story structures with a maximum height of approximately 20'. There is a concern with regard to compatibility of the proposal with the existing single family residences. The subject property represents an entrance to a Iow density, owner-occupied single family development which surrounds a golf course. Therefore, consideration should be given to developing the property P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 17 to accommodate owner-occupied units (townhouses or villas, or a combination of the two). The adjacent residential development to the east (The Hamlet - a country club community) is developed at 1 unit per acre and the residential development to the south (Sherwood Forest) is developed at 2 units per acre. The following are the densities of the surrounding residential developments within a 2,000 foot radius of the subject property: Subdivision units/acre Country Club Acres 4.6 du/ac High Point 8.0 du/ac Homewood Lakes 6.0 du/ac Lee's Crossing 3.8 du/ac Highland Trailer Park 7.7 du/ac Sunset Pines 7.6 du/ac Franwood Pines 3.0 du/ac Kingsland Pines 3.0 du/ac Kingsland 1.0 du/ac Villas D'Este 10.5 du/ac Windy CreekJHanover Square 4.5 du/ac It is noted that while the Villas D'Este project is being developed at 10.5 units per acre, the project includes an extensive amenity package, garages for each unit, and is oriented so the units are pdmadly adjacent to the school site, away from single family residences. Also, the Villas is a stand alone project which has its own access and is not part of a planned residential development. The portion of the property that abuts the single family subdivisions is zoned RM-6 (Medium Density Residential - 6 units per acre) and the balance is zoned RM (adjacent to Carver Middle School and Rod and Gun Restaurant). The density should be similar to other densities approved for multi-family components associated with other planned development districts which typically have not exceeded 8 units per acre (e.g. Sabal Lakes, Hammock Reserve). Any future development of the property should be consistent with the densities of the surrounding residential developments. To be consistent with adjacent properties, future development with a density of 8 or less units per acre should be allowed. Fulfills Remainirl~a Land Use Needs There is a concern with the construction of another apartment complex in addition to those that have been recently constructed, are currently under P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 18 construction, or have recently received approvals. These projects total more than 1,400 rental units. It is noted that most of the recently approved developments have a greater choice in unit type and size, and more extensive amenities than what is being proposed by the Mirador. According to a housing needs analysis prepared for the City in 1995, these units will satisfy the majority of the City's demand for rental housing through the year 2005. In addition, the City has been working to promote housing in the downtown area. The revised Housing Element transmitted to DCA includes a policy (B-2.6) which states that: "Housing in and near the downtown area, in close proximity to employment opportunities and services, is a critical need. In order to help stimulate demand for new housing in and around the Central Business District, the development of new rental housing projects outside of the TCEA and North Federal Highway area is discouraged". The subject property is located outside the areas described above. Based upon the above, the proposal does not help to fulfill the City's remaining land use needs. Land Use Element Policy A-I.$ - In order to provide a more balanced demographic mix, the development of "large scale adult orientated communities" on the remaining vacant land is discouraged. This policy is being elaborated upon with the recently transmitted Comprehensive Plan via proposed Housing Element Policy B-2.2 which states the following: "The development of new adult oriented communities within the City is discouraged.* New housing developments shall be designed to accommodate households having a range of ages, especially families with children, and shall be required to provide 3 and 4 bedroom units and activity areas for children ranging from toddlers to teens. This requirement may be waived or modified for residential development located in the downtown area, and for infill projects having fewer than 25 units': The proposed 108 unit multi-family development will have 41% one bedroom and 59% two bedroom units. With a middle school located across the street from this property and its close proximity to elementary schools it is important that any residential development on this site be designed to accommodate families. In order to encourage families at least 25% of the units must be 3 bedroom units and at the most 25% one bedroom units. This is similar to the requirement which was imposed with the single family component of the Sherwood Forest PRD, which required 1/3 of the units to be 3 bedroom units. Further, although tot lots have been indicated, no facilities have been provided for teens. While this is not yet a formally adopted policy, the City Commission approved transmittal of the policy to the State DCA (Department of Community Affairs) for their review. It is scheduled to be formally adopted in December. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 19 LDR Sectiorl 2.4.5(F)(5) (Site Plan Findings): Pursuant to Section 2.4.5(F)(5) (Findings), in addition to provisions of Chapter Three, the approving body must make a finding that the development of the property pursuant to the site plan will be harmonious with the adjacent and nearby properties and the City as a whole, so as not to cause substantial depreciation of property values. The property is surrounded by the following zoning districts: to the north, across the Atlantic Avenue, is zoned CF (Community Facilities), GC (General Commercial) and NC (Neighborhood Commercial); to the south is zoned PRD and OSR (Open Space and Recreation); to the east is zoned R-1-A (Single Family Residential); and, to the west is zoned PRD. The existing land uses are: to the north is Carver Middle School, FINA gasoline station, Handi Mart, Good Stuff Furniture; to the south is the Sherwood Forest single family subdivision (125 units) and Sherwood Golf Course; to the east is the Hamlet, a country club community with a density of I unit per acre; and, to the west is the west end of Sherwood Forest Ddve (secondary access point to the Sherwood Forest single family homes). Compatibility with the adjacent residences is a concern. The proposed density for the development is 11.84 or 12 units per acre. The density and building mass are out of character with the existing residential developments to the south and east. The property consists of two outparcels at the entrance to a Iow density, owner-occupied single family development which surrounds a golf course. This proposed development will not be harmonious with the adjacent residential subdivisions and may not enhance property values within this area. The development proposal is not within a geographical area requiring review by the Community Redevelopment Agency (CRA)-or the Downtown Development Authority (DDA). Site Plan Review and A_opearance Board: If approval of the Master Development Plan Modification is granted, a full site plan submittal will follow. Final action on the site plan submittal rests with the SPRAB (Site Plan Review and Appearance Board). The site plan must accommodate concerns raised through the master development plan modification, and address the listed conditions of approval. P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 20 Special Courtesy Notices: Courtesy notices were provided to the following homeowner's and neighborhood associations: El Delray Property Owners El President's Council El Greensward Village (within The Hamlet) E! PROD (Progressive Residents of El The Hamlet Delray) El Hanover Square/Windy Creek El Sherwood Forest El High Point Sections 1-7 El Sunset Pines El Highland Trailer Park El Woodlake Letters of objection have been attached. There were no letters submitted supporting the project. Additional letters of objection and support, if any, will be presented at the Planning and Zoning Board meeting. The development proposal to construct a 108-unit apartment complex is inconsistent with policies of the Comprehensive Plan, LDR Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2)(a) (PRD - Development Standards) and 4.4.7(H)(2)(b), (e) and (f) (Master Site Plan 'Findings). There are concerns which relate to the proposed density of 12 units per acre, the compatibility of the 3 story buildings with single family component, the lack of 3-bedroom units, the lack of recreation facilities for teens, and the lack of common open space. If approval is recommended by the Board, conditions should be imposed which relate to a reduction in the number of units, installation of the right turn lane on Atlantic Avenue into the site, relocation of the tot lots, provision of additional recreation amenities for teens, the provision of 3 bedroom units, reduction of the building height, and a requirement to provide landscaping in excess of code requirements along Atlantic Avenue. A. Continue with direction. B. Approve the Master Development Plan. Modification for Mirador at Sherwood Forest based upon positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards) and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and policies of the Comprehensive Plan, subject to the following conditions: P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 21 1. Submission of a full site plan application to be processed pursuant to Section 2.4.3 of the Land Development Regulations and to address the "Technical Items" and conditions of approval listed in the Staff Report; 2. That the right turn lane along Atlantic Avenue be designed to comply with FDOT standards and the signalization changes at the intersection of Atlantic Avenue and Barwick Road be completed prior to issuance of a Certificate of Occupancy; 3. That at least 25% of the units be 3 bedroom units and no more than 25% 1 bedroom units; 4. That the height of the buildings be reduced to 2 floors; 5. That the project density be no greater than 8 units per acre; 6. That the tot lots be relocated to a safe and usable area and installed prior to issuance of the first Certificate of Occupancy; 7. That recreation facilities for teens (i.e. basketball court, racquetball court) be installed prior to issuance of a Certificate of Occupancy; 8. That prior to issuance of any building permits, the re-plat of Tracts G-1 and G-2 must be recorded and Association documents executed; 9. That the parking lot on the east parcel be redesigned to eliminate back-out parking into the access road; 10. That the buildings comply with the building setback requirements; 11. That an additional hydrant provided with the location to be determined by the Fire Marshal and the three (3) story apartment buildings be provided with fire sprinkler systems; 12.That an easement be obtained from the Sherwood Forest Homeowners Association for the installation of the proposed force main across Tract 0-4; and, 13.That extensive buffering including decorative fencing provided along Atlantic Avenue. C. Deny the Master Development Plan Modification for Mirador at Sherwood Forest based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), P & Z Board Staff Report Mirador at Sherwood Forest (Apartment Complex) - Master Development Plan Modification Page 22 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. Deny the Master Development Plan Modification for Mirador at Sherwood Forest based upon a failure to make positive findings with the respect to Chapter 3 (Performance Standards) and Sections 2.4.5(F)(5)(Site Plan Findings), 3.1.1(C) (Standards or Site Plan Actions), 4.4.7(F)(2) (PRD - Development Standards), and 4.4.7(H)(1) (Density) and (2) (Master Site Plan Findings) of the Land Development Regulations, and Land Use Element Objective A-1 of the Comprehensive Plan. Attachments: El Appendix A El Appendix B El Site Plan El Landscape Plan Re: Atlantic Avenue Buffer El Building Elevations Report prepared by: Jeff Costello. Senior Planner CITY DF DELRIt¥ BEItgH : ' "' . ",. :'.. ~!. ~ ?:: ,:,: -., ,:.,.. · ,... :,.,:,, ., . .. 100 N.W. 1st AVENUI~ OELRAY BEACH, F LOF{IE)A 33444 305/243-7000 January 4, 1989 Herb Thiele, City Attorney 310 S.E. 1st Street, Suite 4 Delray Beach, FL 33483 RE: Review of Articles of Incorporation, By Laws, Declarations of Protective Covenants and Restrictions of the Sherwood Forest Association Dear Herb, Enclosed are Articles of Incorporation, By Laws, Declarations of Protective Covenants and Restrictions for the Sherwood Forest Homeowners Association. Also included are agreements between Fleetwood Development Corporation (developers of Sherwood Forest Homes) and the Sherwood Park Golf Corporation (owner of the Sherwood Golf Course.) The Sherwood Forest Development proposal involves the establishment of 125 Single Family homes on the perimeter of the existing Sherwood Golf Course located at Barwick Road and Atlantic Avenue. The.entire property was annexed into the. City by Ordinance 80-88 with a;PRD-L (Planned Residential Development~L~ Low to MediumDensity) designation on October 11, 1988. The PRD-L Zoning designation requires a 15% open space requirement. As a condition of site plan approval on August 23, 1988,.the residential development was required to integrate the golf course development into the project by; 1.) making memberships available to all ~k~,~~~~, 2.) as well as, assuring the continued existence of the golf course as such, until such time as the owner of the golf course, the homeowners of Sherwood Forest Development, and the City of Delray Beach agree to terminate the requirement. Please review the Dedication and Agreement documentation to verify compliance with these conditions. THE EFFORT ALWAYS MATTERS Herb Thiele January 4, 1989 Page Two A further condition of approval was that the Declaration of Protective Covenants and Restrictions provide that boats and recreational vehicles not be parked in driveways,-front yards, or on the private streets. Please review language on Page 13 Section (5) of the ~).P.C.R. to verify the language is specific enough to ¢o~ply with the above condition, as well as, all. documents for general legal sufficiency. . These documents are part of a Preliminary Plat submittal which is scheduled for Planning and Zoning Board action on January 23, 1989. Please provide a response if possible by January 18, 1989, so the information can be included in the Staff Report. If you have any questions regarding the' development or the documents provided contact me at 243-7043. Sincerely, Dorling, II Paul ner PD/lh Enclosures I:ITV OF DELRGV BEfl£H October 4 ~ ]. 99 I I00 N W. 1si ,AVENUE DSL~A.v BSACH. ~LORIDA 33444 407/24,3-7000 Anderson and Cart, Inc. Attn: Eugene W. Pot~er, Jr. P. O. Box 550 521 South Olive Avenue West Palm Beach, FL 33402 Dear Mr. Potter: The following is provided in response to your request for information on the development potential of Sherwood Forest Plat Tracts G-i, G-2, G-3, and G-4. Tracts G-3 and G-4 The current zoning designation is PRD (Planned Residential Development) and the Land Use designation is OS (Open Space}. These tracts are restricted via an agreement between Sherwood Forest Homeowner's Association, Sherwood Golf, Inc. and the City of Deiray Beach. The dedication agreement restricts these tracts to their present use of an executive golf course, including the operation of a clubhouse/pro shop. The dedication is binding for a term of twenty-five (25) years with automatic successive ten (10) year renewal terms unless the dedication is revoked, in writing, by deciarent with written consent of the Sherwood Forest Homeowner's Association, Inc. and the City of Delray Beach. The dedication is a covenant running with the land and is binding upon Sherwood Park Golf. Inc. and its successor and assigns. Tracts G-1 and G-2 The Sherwood Forest Plat designates these tracts for future development. The current zoning designation is PRD (Planned Residential Development) and the current land use designation is Medium Density Residential (5-12 units per acre). A list of allowed permitted and conditional uses for the PRD zoning designation is attached. I hope this information is sufficient for your purposes. If you desire additional information you can contact me at 243-7040. Sincerely, Paul Dorling Planner II PD/cm Attachments T.E EFFORT ALWAYS MATTERS TABLE OF CASES 1. Colonial Apartments. LP v. City of Deland, 577 So.2d 593 (5th Dist. 1991) 2. BML Investments v. City of Casselberry, 476 So.2d 713 (Sth Dist. 1985), rev. denied, 486 So.2d 595 (Fla. 1986) 3. Equity_ Resources, Inc. v. County_ of Leon, 643 So.2d 1112 (1 st Dist. 1994) 4. Resolution Trust Corporation v. Town of Highland Beach, 18 F.3d 1536 (1 lth Cir. 1994) · - COLONIAL APTS, v. CITY OF DeLAND Fla. 593 Clte~tST7 So.2d S93 (FILApp. 5 DI~.. l~gl) nual income. This is not a pittance, but is proval of site plan. City denied approval. patently inadequate in view of the hus- Partaership petitioned for writ of certiora- band's gross income of $240,000 a year ri. The Circuit Court denied the petition. ($130,000 net income) as a successful car- Partnership petitioned for writ of certiorari diologist and the relatively affluent life to review Circuit Court's denial. The Dis- style which the parties enjoyed during the trict Court of Appeal, Pete~son, J., held marriage. The wife, at the very least, de~ that city could not approve site plan for serves $3,000 a mont~ in permanent alimo- construction of aparwnent complex which ny so that her gross annual income, includ- would have density of 13 units per acre on lng her teaching.income, is increased to a condition that density not exceed 6 units far-from-handsor~ $60,000 a year--as per acre, in that o. rdinance specifically al- urged by the wife. Although I am loathe lowed for density of 16 units per acre in to interfere with the trial court's discretion district in which complex was sought to be on this matter, I am nevertheless driven to built. the conclusion that the $1,500 a month " awarded in permanent alimony was arbi- Writ granted, order quashed, remand- ed with directions. trary and unreasonable under any reason- able view of this record--and that the wife's request for a meager increase to $3,000 per month in permanent alimony I. Zoning and Planning ~=,378 would tend to right, at the lower end of the Opinions of neighbors, by themselves. reasonableness scale, the income imbalance are insufficient to support denial of pro- ~.~' which unfortunately the fina{ judgment posed deveiopmenL creates. DeCenzo v. DeCenzo, 433 So.2d .~' 1316, 1318 (Fla. 3d DCA 1983); Car; v. 2. Zoning and Planning ~=~382.1 Cart, 522 $o.2d 880, 884 (Fla. 1st DCA 1988); Pirino v. Pirino, 525 So.2d 1028 City could not approve site plan for construction of apartment project which I would therefore reverse the alimony condition that density not exceed 6 units awarded herein and remand the cause to per acre; 16 units peracre was within term the trial court with directions to award the "iow density" used in statement of intent wife $3,000 a month in permanent alimony; portion of zoning ordinance, and nothing in C in all other respects, however, I would af- ordinance would leave one who examined it firm the final judgment under review, to suspect that term "compatibility" as used in statement of intent was meant to allow adjustment of cap of 16 units per 3. Zoning and Planning ~=~66 COLONIAL APARTMENTS, L.P., etc., Petitioner, While project density is legitimate con- cern and is most important concern, it is ¥o concern that must be addressed and ex- CITY OF DeLAND, etc., Respondent. pressed in appropriate ordinances. No. 90-1377. 4. Zoning and Planning n{~66 District Court of Appeal of Florida, Fifth District. When law establishes specific allow- able density, its clear terms cannot be var- Feb. 14, 1991. led by forced interpretation of intent. Rehearing Denied April 8, 1991. 5. Zoning and Planning Limited partnership sought to con- , Review by District Court of Appeal of struct apartment project and sought al~ circuit court's decision denying petitioner's ', 594 Fla. 577 SOUTHERN REPORTER, 2d SERIES challenge to city's denial of approval of site space, recreation areas, and adjacent plan was limited to determination of wheth- properties. er circuit court afforded procedural due process and applied correct law. U.S.C.A. Const. Amends. 5, 14. (E) Dimensional reguireraents. The following requirements shall apply in the R-4 District: Jason G. Reynolds of Goble, Barkin, Got- (1) Minimum project site. A two-fatal- don, Morris & Reynolds, P.A., Daytona ly or multi-family dwelling project site Beach, for petitioner, should be approximately one acre or Astrid de Parry, City Atty., DeLand, for more in area in order to accommodate respondent, at least two (2) or three (3) buildings, and in any case be sufficient in size to PETERSON, Judge. meet the requirements set out herein. Colonial Apartments, L.P., petitions for a (2) Project density. The maximum al- writ of certiorari to review the circuit lowable number of dwelling units shall court's denial of a petition for a writ of not exceed sixteen (16) units per acre. certiorari filed in that court. The petition in the circuit court asked for relief from an administrative action by the City of De- (F) t~uilding height. In order to encour- Land in denying approval of a site plan age variety in the appearance of building submitted by petitioner. We grant the roof lines and more usable or landscaped writ. area, developers are permitted to design a portion of the multi-family dwelling Petitioner sought to construct an apart- project to a maximum height of three (3) ment project on an approximately twenty- stories or forty-five (45) feet provided the acre site in the City of DeLand. The site following conditions are metz had been rezoned R-4 under section 33-8.1 of the DeLand Code of Ordinances at the time of its annexation into the city in 1972. (3) No three-story structures shall be The ordinance has remained substantially located adjacent to a single-family resi- unchanged since the annexation, dential area as shown on the zoning Pertinent portions of the ordinance pro- map or land use plan. vide: (A} Statement of intent. The intent of (H) Screening. A minimum five-foot the R-4 dwelling district is to: high screen shall be provided along side (1) Permit the construction of totally and rear lot lines that abut upon a single- planned single-family cluster develop- family residential area as shown on the ments or duplexes, triplexe~ and low- zoning map or land use plan but shall not density Iow-rise garden type apart- be required in any front yard or along ments on relatively large tracts of land side lot lines abutting a street, park, in single or common ownership; stream, lake or golf course .... (2) Require the preparation and ap- proval of detailed site, landscape, traf- fic, parking and other plans deemed (hi) Architecture and environmental necessary as part of an overall devel- quality guidelines. In order to prgmote opment concept; architectural and environmental quality within the project, the developer is eh- (3) Require a greater amount of open couraged to utilize the follow~g guide- space and recreation area to building area; and lines in designing the project: (4) Achieve an esthetic and compatible relationship between buildings, yards, (2) The architectural design of build- patios, parking areas, common open ings should be developed with censid- COLONIAL, Ar ,~ ....... CRests577 So~2d $93 (i~i~App. S Dis(. 1~1) e~tion given ~ ~e ~la~o~hip of ex- development plan. The city fu~er ar~ed isting adjacent development in ~s ~at a plann~ development in ~e R~ zon- of building heighL m~s, ~xture, line, ing dis~ct w~ more analogous ~ a s~iai and pat~rn, exception use ~an a ~zoning, and that Addi~onally, ~e o~inance p~vid~ in density w~ a p~r ~nside~on under ~ther s~ific ~s for setback ~ui~ the "s~ment of in~nt" ~n of the men~. spacing ~tween building, numar o~inance ~at ~ui~ an "aesthe~c and of s~es and height ~qui~men~, mini- compa~ble relationship" wi~y adjacent mum livable fl~r a~a in squa~ f~t, pm~es. sc~ning, parking ~qui~men~ and de- The ci~uit cou~ deni~ ~e ~tion in a sign, vehicle a~s lanes, sidewal~, o~n s~n-page opinion and o~er in which it space ~ui~meu~, hnds~ping, signs, discuss~: (1) ~e il{e~lity of ~e ini6al and a~hi~tu~! ~d en~nmen~l quali~ rezoning (noting ~t it w~ not necessa~ ty ~idelin~. ~ ~{e u~n ~ ~ue sin~ "a{! pa~es Pe~ner at~mp~ ~ ~mply ~ ~e ag~ ~at ~e R~ ~ng designation ~u~meu~ of ~e o~inan~ and su~ should ~ p~um~ ~id"); (2)~e inade- mit~ for app~val a si~ plan ~at pmvid- qua~ level of ci~ ~ and inc~e in ~ for a de~ity of ~i~n uni~ ~r ac~. ~fF~ (3) ~e fact ~at ~e si~ ~ sur- ge city's planning au~ofi6es ~m- ~und~ on ~ sid~ by low densi~, sin- mend~ ~ &e city ~mm~sion ~at ~e gi~family, ~iden~l and a~cultu~} use p~n ~ approv~ wi~ ce~in changes not and ~e fact ~at ~e closet exis6ng multi- invol~ng density; ~e ~fitioner a~ in family development h~ a de~ity of 4.~ ~ ~i~ng ~ make ~e sugges~d changes. 4.5 uni~ ~r a~; ~d (4) ~e gene~lly ~e city ~mmission ~bl~ action on ~e accep~d planning s~nda~ for {ow~ensity, plan at ~e fi~t conside~on when adjoin- mu{fi-family developmen~ of five ~ eight lng landowne~ voiced op~sition. Then, at uni~ ~r ac~. ~e order concluded by a ~mm~sion m~fing on D~ember 18, holding ~at ~e city had d~cre6on ~ con- 1989, final action w~ ~ken ~at approv~ di~on si~ plan app~val for a multi-family ~e plan wi~ the single ~ndifion ~at ~e development in ~e R~ zoning dis~ict on a density not exceed six uni~ ~r ae~. ~e ~uc~n of pmj~t densiW, and that ~e ~ty di~ a let~r ~ ~fifioner on De- city's de~inafion w~ sup~ by su~ ~m~r 21, 1989, s~fing ~e ~on for i~ smn~! ~m~nt e~den~ ~at s~ dwell- ~c~on: lng u~ ~r acm would ~ mom ~mpat- 1. B~ u~n ~fion ~.I(AE1), ~e ible ~ su~unding pm~es. The cir- p~ deve~pment did not m~t ~e euit ~u~ a~o ~mmeu~ ~at '~]mj~t ~ of ~ing '%w~e~i~ Iow-~e de~i~ ~ of le~ ~nce~ ~ ~e City ~en ~ a~en~ on ~iafiveiy ~mm~ion in de~ng whe~er or not la~e ~e~ of had"; and ~ app~ve a si~ p~ for a mul~f~ily 2. B~ u~n ~n ~.I(AR4), ~e development in ~e R~ ~ning ~" pm~ development ~d not achieve an ~e ap~ndi~ pm~ by ~'pa~ a~fie ~d ~mpa~ble ~iafionship inelud~ ~pi~ of ~ le~sla~ve h~ of ~ ~e ~jaeent p~. ~e anne~o~ ~eluding 1972 minu~ and Pe~ne~ ~en ~u~ ~t ~e ci~uit o~inan~. ~at h~ ~fl~ ~at ~e ~u~ ~nt review of ~e ae~on of ~e city pfima~ p~se of ~e city in annexing ~e ~mmi~ion and ar~ ~at ~e action ~d .si~ in 1~2 ~ ~ p~mo~ ~e joint ef- ~e pmcfi~! eff~t of illegally down-zoning fo~ of develo~m of ~nds in the general · e si~ f~m s~n ~ s~ uni~ ~r ac~. ~on of ~e si~ ~ ~ns~ct a m~r ~e city ~nd~ by ar~ing ~at ~e si~ sewer lift s~on and d~cou~ge ins~lla- ~d never ~n p~rly ~n~ R~ when ~on of four ~ s~ indi~dual small package annex~ ~use of non~mplian~ by ~e ~ent plan~. No~ing in ~e 1972 applier and ~e city wi~ no,ce and hear- ~s pm~d~ ~e sHgh~t hint ~t den- ing ~ui~men~ and/or a ~ui~ ske~h si~ w~ a ~nside~on except ~e s~- 596 Fla. 577 SOUTHERN REPORTER, 2d SERIES ment in ordinance number 72-34 that "the cial attempts at interpretation and are ap- building of R-4 multiple family dwellings propriate in our review of the DeLand ordi- on the subject property would be consistent nance..S°me of the basic rules were set with the City's Comprehensive Use Plan, forth in Rink, er Materials Co~poration v. which plan has been approved by the Plan- Cit!/of North Miami, 286 So.2d 552,(Fla. ning Board of the City of DeLand as well 1973): as the technical assistance of the Volusia (a) In statutory construction, statutes Council of Governments .... "The appen- must be given their plain and obvious · dices contain neither copies of pertinent meaning and it must be assumed that the portions of the comprehensive plans nor legislative body knew the plain and ordi- minutes of the 1989 city commission meet- nary meanings of the words. ings that would allow any insight into the i substantial down-zoning of the'site. (c) Since zoning regulations are in der- We view the issue that was presented to o~ation of private rights of ownership, the circuit court as one of construction of words used in a zoning ordinance should the R-4 ordinance. While there may have be given their broadest meaning when been an additional issue initially on the there is no definition or clear intent to validity of ordinance 72-34 that zoned the the contrary and the ordinance should be site R-4 and annexed it into the city limits interpreted in favor of the property own- of DeLand, that issue was removed from er. consideration by the circuit court through Id. at 553 (footnotes omitted). In Rinker, the stipulation of the parties, the supreme court also cited Rose v. Town [1] The elected and appointed officials of Hillsbo~'o Beach, 216 So.2d 258 (Fla. 4th charged with the administration of city and DCA 1968), for the rule that courts gener- county government are subjected to in- ally may not insert words or phrases in creasing pressures. On one hand, they are municipal ordinances in order to express pressed to allow growth only if it is com- intentions which do not appear, unless it is mensurate with available roads and servic- clear that the omission was inadvertent, es. On the other hand is the pressure from and must give to an ordinance the plain and landowners who wish to develop their va- ordinary meaning of the words employed cant properties in a manner that results in by the legislative body. Id. at 553. the largest return of capital or pleasure. [2] This court followed another basic Still another pressure is the desire of rule in City of Ormond Beach v. State ex neighbors who do not wish their present r~L Del. Marco, 426 So.2d 1029 (Fla. 5th enjoyment of their lands disrupted in the DCA 1983), when we stated that the pri- slightest, by the use of adjoining vacant mary guide to statutory interpretation is property. Opposition of surrounding prot~ the determination of legislative intent. It erty owners must be considered by.the city is only the interpretation of the statement in the instant case since the statement of of intent of the DeLand ordinance that intent of the R-4 ordinance includes the causes the problem in the instant case, desire to achieve aesthetic and compatible since the other portions of the ordinance relationships between adjacent, properties, are rather precise in directing the manner But the opinions of neighbors by them- in which a parcel of land designated R-4 selves are insufficient to support a denial may be used. This st~ment of intent was of a proposed development. BML Invest- used by the city to vary the rather straight- ments v. ¢ittl of Cazselbcrrtt, 476 So.2d forward pronouncement of the ordinance 713 (Fla. 5th DCA 1985), rev. denied, 486 that limited the peoject density to sixteen So.2d 595 (Fla. 1986); Conctta v. Citlt of units per acre. The record shows .there Sarasota, 400 So.2d 1051 (Fla. 2d DCA was no evidence of intent before the trial 1981). court other than the language of the ordi- General rules of statutory construction nance and the history of the annexation. in zoning matters have evolved in past judi- The history seems to indicate that the city COLONIAL APTS. v. CITY OF DeLAND Fla. 597 Cite as 577 So.2d 593 (Fin. App. ~i Dist. 1991) induced the then-landowner to seek annexa- a site-plan showing thirteen units per tion in return for the R-4 zoning and avail- acre is absurd when considering the ability of sewer facilities, surrounding properties. The city's As to the language of the ordinance, we own professional planning board did note the following: not seem to consider the site-plan ab- 1. The ordinance does not define the surd when it endorsed it with suggest- terms "low density" and "large tracts of ed changes not involving a density land" as stated in section 33-8.1(AX1). change. Some assistance in interpreting the term The operative portions of the ordinance "low-density" can be gleaned, however, reviewed indicate that, for purposes of this from several sections of the ordinance: ordinance, sixteen units per acre is within (a) Subsection (E)(1) provides that a mul- the term "low density" used in the state- ti-family dwelling project site ("multi- ment of intent portion of the ordinance. pie-family dwelling'~, which includes a Furthermore, nothing in the ordinance "garden apartment" pursuant to sub- would lead one who examines the ordinance section (BX3), should be approximately to suspect that the term "compatibility" as one acre or more in size to accommo- used in the statement of intent was meant date at least two or three buildings, to allow adjustment of the cap of sixteen Subsection (BX2) describes a garden units per acre prescribed in subsection (E). apartment as a group of two to eight The city relies in part on Life Concept~. owner- or renter-occupied dwelling In~ v. Harden, 562 So.2d 726 (Fla. 5th units, but this number may be in- DCA 1990), for its contention that the al- creased to twelve if approved by the lowable density can be adjusted because planning board. This implies that each the statement of intent requires that a building can have eight units without project have a "compatible relationship" the approval of the planning board. If with adjacent properties. The City of eight units are gllowed and at least Apopka ordinance under review in Life two buildings are to be accommodated Concepts required that a use be "compat- on approximately one acre, a simple ~le with the surrounding residential uses." calculation allows us to arrive at the However, that o.rdinance is unlike the one maximum project density of sixteen in the instant case in that the phrase used units per acre. Whether sixteen units in Apopka constituted a density restriction. per acre are considered iow, medium, The operative portion of the Apopka ordi- or high density in other legislation is nance specifically provided that "It]he max- not clear or even material to this case, imum number of occupants to reside in the but in this ordinance, this number of facility shall be compatrole with the sur- units appears to fit the definition of a rounding residential uses .... "Id. at 727. Iow-density, garden-type apartment_ Moreover, unlike DeLand's ordinance, Co) The ordinance contemplates that the Apopka's ordinance never specified density R-4 zoning use would be placed adja- at a certain number. We/~md most signifi- cent to a single-family residential area cant the comment in Life Concepts: "Had indicating compatibility. Subsection the ordinance provided a specific numerical (F)(3) prohibits three-story structures cap on the occupancy of the home, the adjacent to a single:family residential zoning board would have been prohibited area, and subsection (H) requires from considering the actual impact of the screening through the use of hedges proposed use." Life Concepts, at 728. and wood or masonry construction [3,4] We agree with the city that along side and rear lot lines abutting a project density is a legitimate concern and single-family residential area. This go further in stating that it is a most recognit/on in the ordinance that R-4 important concern. But it is a concern that and single-family districts can abut in must be addressed and expressed in appro- the dty's scheme of zoning undercuts prlate ordinances. A community should be the dty's argument that the instant developed in accordance with planned ac- petitioner's attempt to gain approval of tion. Development decisions should not be 598 Fla. 577 SOUTHERN REPORTER, 2d SERIES made in reaction to an application that re- lies on an ordinance establishing a density Moses EULINE, Appellant, no longer acceptable to the majority of the current members of a governing body. v. Owners are entitled to fair play; the lands The STATE of Florida, Appellee. which may represent their life fortunes No. 89-584. should not be subjected to ad hoc legisla- tion. Density is one of the most important District Court of Appeal of Florida, elements in the marketplace today in deter- Third District. mining land value. When a law establishes a specific allowable density, its clear terms Feb. 19, 1991. c~nnot be varied by a forced interpretation Rehearing Denied April 26, 199l. of intent. Such an ordinance should be interpreted in accordance with its plain meaning. Defendant was convicted in the Circuit {5] Our review of the circuit court's Court, Dade County, Stanley Goldstein, J., decision is limited to a determination of of sexual offenses and he appealed. The whether that court afforded procedural due District Court of Appeal, Schwartz, C.J., process and applied the correct law. Cit!l held that evidence of improper conduct of Deerfeld Beach ~. Vaillant, 419 So.2d with defendant's daughter was not admissi- 624 (Fla. 1982). The correct law applicable ble. in this case is that the ordinance should be Reversed. given its plain meaning and that any doubts should be construed in favor of a property owner. The circuit court's re- Criminal Law ~=372(7) iiance upon the unde£med and uncertain Evidence that, a few weeks after de- standards contained in the statement of fendant allegedly engaged in digital vagi- intent when clear and specific numbers of hal and anal penetration of a 12-year-old · units are expressed in that same ordinance friend of his daughter, he engaged in ira- is not an interpretation that recognizes the proper conduct by having the daughter rub plain meaning of the ordinance. It is not her uncovered geni~! area against his back fair to the governed that the simple issue was not sufficiently similar to the in-st of how many dwelling units are allowed offense, with which defendant was under this city ordinance requires a six- charged, to be admissible as other crimes teen-page trial court opinion interpreting evidence. the ordinance against a clearly expressed We grant the writ of certiora~, quash Bennett H. Brummer, Public Defender, the order of the circuit court, and remand and Alan M. Sorota, Special Asst. Public to the circuit court with directions to quash Defender, for appellant. the administrative decision by the City of Robert A. Butterworth, Atty. Gen., and DeLand to impose a condition that the den- Roberta G. Mandel, Asst. Atty. Gen., for sity of petitior/er's development not exceed appellee. six dwelling units per acre. Writ GRANTED; order QUASHED; Before SCHWARTZ, CJ., and REMANDED with directions. GERSTEN and GODERICH, JJ. W. SHARP and GOSHORN, JJ., SCHWARTZ, Chief Judge. concur. The defendant Euline was charged with and convicted of two sexual offenses in- vol~iug the digital vaginal and mini pen- etnLtion of a twelve year old girlfriend of BML INVESTMENTS v. CITY OF CASSELBERRY Fla. 713 Cite as 476 So.2d 713 (Fie. App. S Dist. 198S) Stat. provides of departure of proposed-development from :he full name, BML INVESTMENTS, a Florida surrounding residential areas, were them- tten upon the general partnership, Petitioner, selves insufficient to support denial of ~.) Subsection plan· ds information v. ~ itself or "the CITY OF CASSELBERRY, Florida, a 3. Zoning and Planning ~=~726 identification municipal corporation, Respondent. Record was insufficient to determine ~g part~! ma~t No. 85-243. whether substantial competent evidence (Emphasis .. supported finding by planning and zoning · District Court of Appeal of Florida, commission that revised preliminary plan ~azelle's check ~ Fifth District. ,n the check, ~ submitted by developer, changing proposed with the stat? i Sept. 12, 1985. use from condominium to apartment, in- [nc. should be Rehearing Denied Oct. 8, 1985. creased density so as to be a legitimate against it. It concern to city in determining whether or the checks in not to approve plan, and therefore remand ~t address or Developer petitioned for writ of certio- was appropriate .to obtain adequate record d that the ap- rari to obtain relief from city's denial of of proceedings to determine whether that ing iden~fica- preliminary development plan seeking cOn- reason was supported by the evidence. s that he lived struction of apartment complex. The Cir- time, if'at ail, cuit Court denied petition, and developer n at that ad- again petitioned for a writ. The District Albert R. Cook of Robinson, Rooks & .ad no phone. Court of Appeal, Dauksch, J., held thatz (1) Owen, P.A., Casselberry, for petitioner. ~ Winn-Dixie opinions of surrounding landowners, by Clayton D. Simmons and Ned N. Julian, ~ to the full themselves, were insufficient to support de- Jr., of Stenstrom, McIntosh, Julian, Colbert statute, nial of plan, but (2) remand was appropri- & Whigham, P.A., Sanford, for respondent. ate to determine whether another reason R REHEAR- given for denial of plan, namely, proPosed ON PETITION FOR WRIT OF ~G EN density of development, was supported by CERTIORARI competent substantial evidence. DAUKSCH, Judge. Writ granted; order quashed and re- deny the ap- ing. Judge manded with directions. BML Investments petitions this court for motion. : · a writ of certiorari to review a final order entered by the circuit court denying BML's THOMPSON 1. Zoning and Planning ~:~610 petition for writ of certiorari filed in that :ehearing. En Courts will not interfere with adminis- court. The petition in circuit court sought e to suggest trative decisions of zoning authorities un- relief from a decision of the City Council of mending Sec- less such decisions are arbitrary, discrimi- the City of Casselberry, Florida which de- · the deficien- natory, or unreasonable. , nied approval of BML's revised preliminary in this case, 2. Zoning and Planning ~=~435 development plan which sought construe- · check cash- Opinions of landowners surrounding tion of an apartment complex on 18.37 Chapter 832, proposed apartment development, though acres of land within the city limit. arguably within criterion in zoning code BML acquired the property in January, that planning and zoning commission con- 1984. The previous owner had the proper- sider relationship of planned development ty rezoned from R-3 to planned unit devel- surrounding the neighborhood and degree opment (PUD) zoning classification.~ At I. A planned unit development is defined in the ownership, which is totally planned to pro- City's zoning code as: vide for a variety of compatible uses and PLANNED UNIT DEVELOPMENT. An area common open space and which does not nec- ol~ land developed as a single entity or in essarily comply with the subdivision and zon- approved stages in conformity with a final ing regulations of the city with respect to lot development plan by a developer or a group size, lot coverage, setback; off-street parking, ~ of developers acting jointly and under single 714 Fla. 476 SOUTHERN REPORTER, 2d SERIES that time the previous owner was granted 1. The Council originally approved the a preliminary development plan in accord- plan for condominium ownership and ance with the City's zoning code. That not for apartment rental. project contemplated building condomin- 2. The majority of the people affected iums on the property. Due to the unavaila- opposed the change from condomin- bility of sewer and water facilities the iums to apartments. project did not proceed. The City contends 3. High density requested by the devel- that rezoning was conditioned upon the oper. building of condominiums but the rezoning 4. New owner should be morally obli- ordinances make no reference to any such gated to original owner's commit- limitation. The Casselberry Zoning' Code ments. permits both condominium and apartment 5. Condominiums generally are better complexes to be built on PUD zoned prop- maintained and have lower crime risk. erty.z See § 157.176, Casselberry Zoning BML sought review in the circuit court Code. by a petition for writ of certiorari. In On January 4, 1984, BML bought the denying the petition, the cour~ found that property. BML wanted to change the de- there is a distinction in the Casselberry sign of the previous owner's proposal so it Zoning Code (§ 157.176) between the per- contacted the city attorney who indicated missible uses authorized in a PUD zoning classification in that condominiums are sin- that the project should go through the pre- gle-family attached dwellings rather 'than liminary development planning process apartments which are multi-family dWell. again. After several amendments, a re- ings. Further, the court found that the vised preliminary development plan was original approval of PUD zoning classifica- unanimously approved by the City's Plan- tion for the property was influenced by the ning and Zoning Commission and this rec- representations of the prior owner that the ommendation was sent to the City Council. project would be 100% condominium owner- At a workshop session before the City ship. The court noted that the section of Council, the revised plan was presented the Casselberry Zoning Code relsting'to and additional changes-were made and ac- the PUD zoning classification provides for cepted by BML. On March 2, 1984, a pub- conditions to be agreed upon between the lic hearing was held before the City Court- zoning authority and applicant for a partic- cil. Petitions against the project were sub- ular zoning classification. The court also mitred and testimony from several sur- found that the record was inadequat~ to rounding homeowners reflected that they determine whether the decision of the City were against the change from condomin- Council to deny the request was supported ium to apartment development. A letter by substantial competent evidence but the from the original owner, dated July 25, court stated the record did show that the 1980, was considered by the City Council. City considered density, traffic, the opin- The letter indicated that the original design ions of the surrounding property owners called for condominium ownership of multi- and comparisons between apartment .living family units. The City Council voted uriah- and condominium ownership, all of ?.hich imonsly to deny the revised plan. The rea- were deemed by the court to be appropriate sons given by the City Council for the factors for consideration. Finally, the denial were: court found that the specific controlling bulk, type of dwelling, density, and other reg- (1) Residential units, including single-fami- ulations, ly attached and detached dwellings, two4~uni- 2. Permitted uses in PUD zoned property include ly dwellings, and multiple-family dwelling~ inter alia: * (A) The uses permitted within the Planned § 157.176, Casselberry Zoning codel Unit Development District shall include the following. i BML INVESTMENTS v. CITY OF CASSELBERRY Fla. 715 I Cite as 476 So.2d 713 (Fla. App. S Dist. 198S) ,proved the I provisions of the Casselberry Code were guesthouses.. Neither factor was found to lership and : not unconstitutional, be relevant to the controlling city ordinance [1] The circuit court's review of the setting forth criteria to be utilized in deter- )le affected City's actions was limited to: (1) whether mining whether a special exception should condomin- procedural due process was accorded, (2) be granted. Courts have held that objec- whether the essential requirements of law tions of residents in surrounding neighbor- ~' the devel- ~ were observed, and (3) whether the admin- hoods to proposed developments are not a ~ istrative findings and judgments were sup~. sound basis for denying a permit to build. ~orally obli- i ported by competent substantial evidence. Conetta; City ofApopka v. Orange Coun- 's commit- ~ City of Deerfield Beach v. Vaillant, 419 ty, 299 So.2d 657 (Fla. 4th DCA 1974); see So.2d 624 (Fla.1982); Cherokee Cruzhed al~o 3 Anderson, American Law of Zon- are better Stone v. City of Miramar, 421 So.2d 684 lng, § 15.27. crime risk. (Fla. 4th DCA 1982). This court, upon re- [2] In the instant case, like Conetta, ircuit court view of the circuit court's decision, is limit- the major consideration in denying BML's ~iorari. In ed to a determination of whether the circuit proposed development was that the majori- found that court afforded procedural due process and ty of the persons affected opposed the Casselberry applied the correct law. Vaillant. Fur- change,s Although one property owner en the per- ther, it is well settled that courts will not voiced opposition to the proposal citing )UD zoning interfere with administrative decisions of traffic problems and increases in crime, no ~ms are sin- zoning authorities unless such decisions are evidence was submitted in support of his rather than arbitrary, discriminatory, or unreasonable, claim. The opinions of surrounding land- .mily dwell- Conetta v. City of Sarasota, 400 So.2d owners arguably falls within the criterion ~d that the 1051 (Fla. 2d DCA 1981); City of Naples ~. in the Casselberry Zoning Code that the g classifica- Central Plaza of Naples, Inc., 303 So.2d Planning and Zoning Commission consider riced by the 423 (Fla. 2d DCA 1974). the relationship of the planned develop-. ncr that the In Conetta the second district reversed a ment surrounding the neighborhood and, to fium owner- denial of a special exception to a zoning a lesser extent, the criterion considering e section of ordinance and granted petitioner's request the degree of departure of the proposed relating to for writ of certiorari. The special excep- development from the surrounding resi- ~rovides for tion sought by petitioner was to build a dential areas, but such opinions, by them- ~etween the guest house on her residential property, selves, are insufficient to support the deni- for a paxtic- The denial of the special exception in that al. Conetta, · . court also case was based solely on the proposal's [3] IV'hat causes us concern, hcwever, ~xiequate to. unpopularity with surrounding residents is reason Number 3, "High density request- of the City and the conjecture that a subsequent own- ed by the developer." Under the zoning s supported er of the property would not comply with ordinance, to secure approval of PUD zon- nee but the the City's proscription against renting ing, the developer must submit its prelimi- ~w that the c, 'the opin- 3. The Casselberry Zoning Code does not specifi- D. Provision for future education and recre. cally set forth criteria to be utilized in determin- ation facilities, transportation, water supply, ;rty owners lng whether the City Council should grant or sewage disposal, surface drainage, flood con- unent' living deny a preliminary development plan but the trol, and soil conservation as shown in the dl of which code does require the Planning and Zonln~o preliminary development plan. appropriate Commission to consider the following criteria E. The nature, intent, and compatibility of ~inally, the in determining whether it should recommend common open space, including provisions for approval or denial of the proposed development the maintenance and conservation of the com- controlling to the City Council. These factors include: mon open space. F. Feasibility and compatibility of specified ~g single-fami- A. Degree of departure of the proposed stages of the preliminary development plan. ~ two4ami- planned unit development from surrounding G. The planning and zoning commission residential areas, shall not review code requirements germane ily dwelling~ B. Compatibility within the planned unit de- to building or building interior. These mat- · ' velopment and relationships with surround- ters shall be handled by building official staff ~de. lng neighborhoods, members who are responsible for permits and · C. Prevention of erosion and degrading of code enforcement. /:, surrounding areas. § 157.188, Casselberry Zoning Code. 716 Fla. 476 SOUTHERN REPORTER, 2d SERIES nary plan, showing, among other things, refund of furniture deposits, and alleging the proposed density of the development, conversion. The Circuit Court for Palm We gather from reason Number 3 that the Beach County, William C. Owen, Jr., J., revised preliminary plan submitted by peti- rendered judgment against corporation for tioner increased the proposed density, and refund but found that customers failed to if this is so, it is of legitimate concern to prove that corporate veil should be pierced the city in determining whether or not to or that defendants committed conversion, approve the plan. Nevertheless, the record and customers appealed. The District before us is insufficient, as it was before Court of Appeal, Rivkind, Leonard, Associ- the circuit court, to determine whether this ate Judge, held that: (1) furniture deposits finding is based on substantial competent which customers deliVered to design fL, Va evidence, were sufficiently capable of identification We therefore grant the petition for writ where they were delivered to be used for a of certiorari, quash the order of the circuit specific purpose, even though there was no court, and remand the cause to the circuit restriction against commingling in the court with directions to require an ade- firm's account, and thus conversion took quate record of the proceedings which were place when the money was disbursed with- held in order to determine whether reason out authorization, and (2) deliberate in- Number 3 as expressed by the city is sup- crease~ of actual construction costs on ported by competent substantial evidence, which design fee to closely held shell corp~ If the record does not support this reason ration was to be based, and then adding by competent substantial evidence, then the additional amount to the increased cost for trial court shall grant relief to the pet!tion- a design fee, contrary to terms of contract, er. was sufficient showing of improper con- WRIT GRANTED: ORDER QUASHED duct to pierce the corporate veil. AND REMANDED WITH DIRECTIONS. Reversed and remanded. ORFINGER and UPCHURCH, JJ., con- cur. 1. Trover and Conversion ~2 ' Deposits which customers made with design f'wrfl which were to be held intact and released only upon written confn~na- tion by the customers of furniture purchas- es were sufficiently capable of identifica- tion to sustain action for conversion be- Manny EAGLE and Helen Eagle, cause they were delivered to be used for a Appellants, Cross Appellees, specific purpose, even though there was no v. restriction against commingling of the BENEFIELD-CHAPPELL, INC., and money in design firm's account, and thus Virginia Chappell and Derrell conversion took place when the money was Benefield, Appellees, Cross Appellants. disbursed without authorization, regardless No. 84-996. of intent of design firm to deprive custom- District Court of Appeal of Florida, ers of their money. Fourth District. 2. Trover and Conversion ~=~10 ' ' Sept. 18, 1985. Creditor's failure to apply funds as Rehearing and Clarification Denied directed by debtor constitutes a conversion. Nog. 6, 1985. 3. Trover and Conversion ~3 Liability for conversion does not re- Customers brought action against de- quire proof of knowledge or intent to de- sign firm and its two shareholders seeking prive one of his property. section 44~101(4), the phrase "i~, rule or ~mtlon for vested rl~ts deter~!n~_tion. ~ s ~ recogr~ Pu~e polic~ is a l~t_~ th~-g~ aud provides developed hnd w~ lega~ ~ to es- ~pomion from othe~ at best, a .hnk-y foundation fro' ~ civil tablish that it would be greedy to seek determination "lmblie policy was descrR~l as a very unruly .. Petition grant~l; cause horse, and, when onee you get ash/de it, you continue development 436, x568o, xox, msags4),ct~so, R'/~m~. L ZoninS'and Pt~mins'~ ?OS Current owner tn~ w~Me/,~ 2B~.~,~9.~C~- When trial eourt reviews decision of tyhassufficknt~ dismissal of her eowpl_n~ ~ prejudie~ m~ evidence. West's F~i.A. RApp. 'tr-~.deree's establklune dent act of rol!~ee APFIR~D. P.Eule 9.0~0(¢)~). government. BAEPIELD aud LAWl~NCE, ~J, L Zoning and Ph~dng & Zoni~ and Planni~ concur. Elements of 'eq~__!e estopper' for p~ of protecth~ property owners who suf~_~_e~t acts of relhnc have relied on actt~s of local zo-~ auth.- on some act or ~'~_ou ef gov~r~m~ent and ri~0~ts ~n eonnection wit~ Petlflonem Or~~ee--- N~ 9081; Sect~m V. See VubUc~Um W~ ~t ~ S. Zon~g ~nd Phmdn~ District Cotwt ~ Appeal of Flmida, of property in orde~ for o First Dktt~ Par~ has st-,~,g ff par~ has iegiti- Sept. & 1994. veiny thai; wnl be affected by ~ of I0. Z~nlng and Piannh eerttor~ after trtal court dented pet~n e~ has st,mdin~ to bring equt~le e~toppe! begtuning eonstrue~n ¥ .......................................... : F~UITY RESOURCI~ INC. ~. COUNTY OF LEON Ft~ 1113 cbm~J.~ So.2d 1112 (Yb. ap~ I msL order ~. ~ M ~o~ ~~ ~ m~ ~- a~ ~ue ~~ ~ ~. ~e f~ ~ ~e d~ ~t ~d ~e ~ ~i~Me ~ ~ ~ ~ ~ng ~ ~ ~ ~n~ue d~~ d~ ~'~it ~ ~ ~ ~ ~-~ ~ ~ 9.~~P~~ M~ P~ ~ k ~ ~ k ~ f~ ~n ~~ ~Ju~ ~ of I~ ~n~ ~d P~ ~ ~s ~ ~ ~ ~ for ~t a vested right to eonUn~e their under the emmt~s ~010 Comprehensive PI~ ttoners t~mely filed an applicaS~ with the referred, to ss Plume I, The standard of review under rule pt~ departmeat mluesth~ a veste~ mately lO ~ It has - 9.030(b~)(B) applies to ~ proeeed~ and rlshts determination for a 4?-~re parcel of is pre~umpt~ .veste is limited to ~q~ether the trt~ cou~t afforded l~opert7 located in Leon County on the Pareel two, or Phase procedural due process and applied the cot* shores of Lake Jackson. Pet~ Equity and consists of approxkn We o~ly detmnlne whed~r die ~ml coon ap- (includins cross~-m~,-oa)in ord~ ~o p~op~r- app~n. Durin~ the ptiedd~ecom~tlawtothosehcu. Lem~C.~ lye~duate the sta~commlttee's dects~. Sec- r~wing and tpprovinl v. A~d~ pummm to section 163.]167, Fiowtda ~tamte$. novo,' 165~ffre t~act. Pursuant to the Ordinance, any Leon County provided for in sec~n m.¢J~ ~ the ocdi- ~ ee~ plan for developme propc~y ~ to deve]o~ pfl3pefty are vested by c~_m_n~o_ n*lmw cet-tiofax~ to the c~*c~fl! court, th~ ~ns] l~R~t~ appro~ t~d~w~o~q~w~hd~Z0~0 3. ~ ~989down-zon~s~/d~eo~n~occu,-~ would be developed over nnt to the Ord~an~ mM It h d~nt~lnd dmt ~ ~. 79~ F.Supp.-1477 04.D.1~.19~2~. dratnag~ fi. om the B~t ~_. ~ and eonem-r~cy ~ of.the 3010 dm~etopm~t was r.~___-__~.~'~__ as o~ the applicatio~ At the coacl~ ~the hes~ IILB. I. ~ the oe~lhtance to request s dete~ml~- EQUITY RBSO~CES, l~a v. COUh'l'/01~ ~ON ~ 1115 ~m~ ~ 1112 ~1~ 1~) ~ ~ ~ ~r ~d~tof~~ ~e~t~~ ~~ a a ~ ~e ~~11, l~~~d~ o~~e~14~~e ~ h Il d ~,* ~ ~ ~ ~t ~ ~o~ on ~e ~ ~ ~ ~ El~c ~d~'- ~ ~ ~ ~.~ 165 m d ~ ~ ~ ~ F~ I~i-1~ ~ ~ ~ ~, .._% ,., the contract, it does not pet, -.,ring a RESOLUTION TRUST CORPO~ 'gN, I Joint venture had .... disttnettm~ amon~ the bonds ___ _,m~_..~ to the a~ Recelyer for lh~m~ew Federa, Say- ~ te~d property right ~n amount paid for each bond, rega~_~s__ ofhow in~s:Bank, and Sentinel Conmmnlfl. es, ' development rGning fo: equitable that approach nmy.neen~~. Inc., d/'n/a Hidden Harbor Development : 2~trs Id'cer is~h,n ~ae of Moreover, ~t str~f,~ the plain m_~_-~-g of Compaq, Plafm~pellee~, mits, though town ~ the contract~ term ~ ~ m~l in the v. ~t of town's earlier the amount p~ for the ~n~' Appellees' TOwN OF HIGIILAND BEACH, mi Joint venture's acts, contention that applying the'same formula to Defendant-Appelhmt Con, Amend. 14. e~h bondholder creates equal, treatment proves too much. That port,on, ~f indeed Noa 92-4~2, 92-~097. 2. Constitutional Law valkl, would hold ~for any formula and 1~e all United States Court of Appears, me-,~. Equal treatment Ooes not result status may a~-~- coa~ mere~'b~ appl~g the s~~ formul,-a~ . Eleventh C~ proper~ status based u formula--to each :bondholder. Instead, the ~ 19, 199~. t~on, policy, or this case, the trust indenture cnl]s for pro- " " duct. U~.C-~q- '" reflect enrlier ter,nfnntJ_nn of residential .n_h, permissible exercise of ~ . approval of the dish4bu~n plan and r~-~d vlou~.represente& TheUnitedffcatezI)ls- stitntio~ We~a F. for modLflcation of the distribution plan in trletCom-tfortheSouthern~ofFlarl- § 2(b); West's ment'for joint venture and awarded n__+t__,~ney q VACATED and REMANDED. feea Tewn appeale& The Court of Ap- view depends upon pe~ Hatchett, Ch~it Jud~ held th~ (1) S. Federal Courts proper~ interest in residential plan unit de- ment regulation const~ - velopment z~-~ (2) town's act~ms gave for adjudication unle r~e to Fh~h Amendment ~-~-~ (~) J~tnt responsible fer hnplem. t~ve due proc~ (4) town 'w~s e~itably of reductions to prop awa~lz of damages and attorney feea final deel~on J~dnt venture's procedural due proce~ limiting its economic value. OJ~.C_~ Conat. almnt clear ehowing that ordinance to tenuinate residential plan ~ 17. Eminent Domain ~(L2) ~2. Eminent Domain ~ development zoning for ~ on earlier Application of general ~o~ law to IUeher than concluding. R failed to provide Joint venture with"notlce Amendment taking if it denies owner of eeo- ture's property were of meetings ~ resulted in. ~- nomics~ viable use of property, whether properly recqnciled Jur~s verd tion of ordinance 'and f~Oed to noitf~ Joint state action denies landowner of all or sub- introduced at trial, and effe venture of meeting at which planning board stanttany all economically viable use of his intent in awa~in_~ damages, voted to declare' _r~_'denttal plan unit derek property turns on economic impact on owner aU circumstances surrounaln~ olnnent zonin~ at an end. U~q.C~. Const. and extent to which regulation interferes _m~nner in which jury corn Amen& 14. with investment-b~ed expectations. : fsrm, foreperson's report on 14. Constitution~ Law ~8(LI) U~.CA. Goust. Amen& 5. ing jury instructions, and u~ Depriv~on of propertF interest rises to 18. Zonin~ and Planning ~467 mony of joint venture's Zon~ and PlapnJn_o' ~ I]pon thom Fepl'~se~;a~ 8onable rate of return on from "as-bu~" rental tire due proeess, ~aen it ~ ordi- ture, ss result of det~r~-~,,u tha~ town ~ Emineut Do_m_~l~ then was previously represented, where town unit development zonin~ for properS, prop- tirely within its discretion i knew tl~t Joint venture was relying upon erly included directive that town 8rant all award on pro rata basis · mutual undentanding with town and co-mit- reasonable plan modifications, consistent actual period of ted substantial funds to develop proper~y, with purpom~ of residential phm unit devel- te~'s uwo atto~ warned t~wn co, nn~m- opment; such induction did not rob town of 25. Federal ~ivil Proce& tions, town took extended period of time to determine whether instp ph~ U. lflt developme~ _tOning thaa was ~ trine is grouaded on fatrnes8 and eommon concerl~ q~m of i~ was terminated, dm'lng ~ p~p~rtor uitable re~ledi~, fails within ~ dktweOon on mOuicipal liability t' ; oeverely disturb district court's e;..e2"~tse of discretion for town pomJessed fin.1 policy m,~n,,' au- of delegMton 0f ~ to ms~or to write · . er ~ introduced at ~ and effectm~t_-~_ Jutes ~9. 8tilmlatimm ,~,14(10) oo owner ~ circumstances eurro--~-_~ trial, tnclu,'~,,~ ~s "preuflin~ pa~, other th.. the United ~ f6rm, foreperson's report on verdict, confus- § 1988, because of status of Resolntion Tk~ust mony ~f joint venture's expert wltuess re- institution with interest in joint venture, equitably gara{-g damage~ would not be reached on appeal, where appel- o's vested 23. Eminent Domain ~=,126(1), 143 lant had eximre~y conceded that joint ven- ,dopment Damages awarded for temporary regula- ture was pre~i~ng party during trial on m'8 repre- tory taking of property to be used for condo- attorney fee~ 42 U~C.A.. § 198S. sonable rate of return on &iminution in value of prope~ ~ re~le, ra~er than income Over 12,000 hours expended by Joint mdst~ actual period of taking. U~C.A. CoM. Amemh.-~ 14. determine whether instmcti0n, ss who~ reviewed for abuse of discret~ mm~ug ParSee A. Talisman, Sam Daniels, Psnl, ~ k~ Revem~ will not be b~sed on iml~Ope~ ~ P. ~ Jt~ Eob~s & P~jnold~ m~ex- error, in No. 92-4~ ~; ~ John C. Do~ten~, Wintlm~ ~n, conceded questions of law for eom~ was l~t L. Coop~, Jone~ Foster, Johnston & ZS. Pedex! Com~ ~0~.1 lees ~n No. ~ ' '1540 Is FEDERAL REPOrtER, mi SERIES ' , RgSOLUTION T~U~ , RSSOLUI~ON TRUST CORP.. v. TOWN OF mG~ B~ 1~1 ~11 t~ I[ (11[~. I~l . s~ ~ ~ ~ ~e ~ of~e ~ ~ a ~ ~ ~ ~ ~ ~ ~~~~1~~ ~l~~&he~d~Fe~. ~ ~ ~ ~ ~~ ~ on ~- ~ a m~ on ~ ~, ~, ~e l~ ~m~~~~Y.H~n ~ ~e ~~ ~e ~u ~y d~. ~N0.~ ~, ~ ~ ~n ~ ~ ~' f~ ~ ~e ~e ~ ~ ~ W~~ff... ~'8~on ~ ~ ~e a ~ ~ d~ n ~ ~e ~i~on ~. ~ ~ ~ ~ ~ ~- t .Because of tlds eoaflict, the C~,,-~u,,aon rot- time.. I am enclosing a copy of the Town nsnce 596- further ommendaUon,' dur~ ~ ~ ~ 1984 meet- cusses this issue and ~ the ol~nion in~.~ memorandum w~l._ch states as fonowB: 'The pROCEDURAL H There., the Plauu~ Board and the p~.~-~.~ board finds no evidence that the Commission held a series of meetings.on the build-out d~te has been extended beyond The joint venture filed RPUD without notifying the Jointventure~ July, 198~.' but the Town removed tl .* United States Dist,-ct advised the Town of potent~ ~ come- Board's resolution to the letter which further jokut venture filed an j~tton date and suggested that dotn~ ao ran Or~_~--~e No. ~ adopted Jul~ 1, 19~ BI, UD, under the the~ thought ~ h~ good remora. Okay... The Town answered, de: ~ set of ~ .You don~ ,neces- eh~on of the board that the previous ~ni,,~ the issues were not ripe that action was taken., in ~ they had Upon receiving the Town's letter, the joint evidence, the district cou~ they had, or at lesst evidenee that eon- aud Town Commln~-n re ~pe~__~l]y, ar~m~g vested property right to And, that's my recollection of h°w that Town rebuffed all such sttempts, sad in one evidence, the jury, sittiug emne about, instance, during a Town _Co~m~ou meet- and sdvisory ~ retm er Ehtne Roberts _~,~ the Board that tires of the Joiut venture that based on the ju~s specisl verdict the 1990 eompletton d~e had been promul- Town Com,,~,~_ ou's reinterpretation of the follows: Imth a~nmis~onandabotrd. Fm'dmp~, Doard. ! ~ ~ in the R~ ! RESOLIYI~ON TRUST CORP. v. TOWN OF HI(~l~f~hND BEACH 1543 t&e T~,- nanee 596- forther ~ to dx units ber 17, 1987, hsed au the mm~ rate be ~ g. Theloes dusedthesul~prop- ~ 'The PROCEDURAL WLqTORY er~ in mtopt~g Ordimmee ~ reducing tiding per- pel,'and (2) temporary damages for inverse ent thne is ~_ 9 X4/~0.~ plus # 10 ~ in* eondemmttion under the Fifth Amendment 1,?00,000 ~ wlthtu U,~.C. § 1982. Alternative, the joint yen- of the Jury award concl~S~ that the a qumt~n damages if unsuccessful in reinstating the The eourt ordered the jdnt venture to r~ov. r, tlmJdnt .A~U-~ bede t~e~es intnm'u~ ~ .the distritt court Srznted a new trial on ~n the vor of the Joint venture on all o_;.~ The $31A60,000 in temporary damag~ Follow- m of the Juffs special verdtct provided dan~ ns ingtrlal, theJointven~ffiedanmtion for Ju~ 1, follow~ $L7~09~25 in attorney's fees as & the ~ on July 1, 1985, with the ItPUD ~ '- ....... completions OF ~ P.~"nEs ~imby ~o~.Julyl, 1985, witho~tt.heRPUD theEPUDexpired2~l,l~ TheTown lew de~le~ tl~ d~ee l~lm~s I~! a ~s~l Augwt & 1990. You must accept that flmling ! vested right in RPUD zo~ ~ ,990, and DISCUSSION Rptr. 886, 658 P,?xl thus, it w~a entitled to a directed verdict. L VESTED RIGHTS and never subndtted a new development, commtlied lepl error _be~__;Lse Orai~m,e oeri de~ied, 429 U~ 1( not ripe for review; Further, the Town con- on Jul~ 1~ 1985, was never nmmted to ex- While we ~ relief claims. The Town also contends that maiyor's 1950 letter, exiendh~ the completion interests and vested ri the district court hnprope~ instructed the date to August 8,. 1990, did not modi~ or zo~-_~ and permit app Town contends that the joint venture is not tton is .a question of law that we review de Grove, ~ F~I 1847, entitled to attorney's fees a~l that even if it novo. M~ ~ C~ ~f Roclded~ 920: (vested ztghts in plan is the disUict court's award was emm~ F~I ~ lr~9 (i~th Cird991~ permh); P~t ~ The Joint venture contends that the facts [~-] 'Properky interests are Lat~lerda~ 8~0 F~I U~ 10~0, 109 constitutional issues are ripe for review..11~, 1164, 47 ~ 406 (19~6); Mm~:~ had a vested right instructions were in accord with the law, the 894. (llth 01r.1989). For actions bro~t ] ordinance ~ clss~ support the court's attorn~s fees award, as ~'le~itlm-te claim of entitlement.~. Perry ~ BS9 granting the ISSUES Z694, FZ00, aS I~Ed,ld 570 (1972); /~ 40S accordance with U~. at 57Z, 92 S. Ot. at ~709. In this sense, , fixin~ the time of, in~ ts~ne~ (1) whether the district court by a few ~ technical forn~ Rather, i The undisputed fac~ pert the dbttiet eourt's .award of injunctive gandin~ a ~ body ~ f~'th, Beach, Fht., Ordt~ ~ld (6) whether..Mion~s fees were ~ 602-0~ 9~ ~Ct. at ~/00-2701; ~ee ela0 Atto ston's meeting on 0 804 (FIL 5th D.~A.1988). Cleart~r, the.C, om- CoK~ti/~ ~ ~ ~ H~- ~ ~ ~d ~e~v~ ~d ~.L~ ~ (1~; ~ ~ ~om ~. ~e jolt v~ ~ ~v~t ~ ~n's ~~ ~ ~- ~ of do~ ~ d~p ~e ~, ~ ~e ~~ ~o~ ~ffi~ i~ d~i-~ffon ~ ~e j~t v~- W~ ~, 4~ U~ ~ 191, ~~av~t~wn- ~ ~81~ h ~on ~ ~e~ ~ ~ no ~ ~~y ~* ~E~ p~A~ ~ ~ ~e ~ ~ ~e ~e ~ m~ ~t ~ Jolt v~'s ~ 816 F~ 151~ 1516 (11~ ~.1~; w~~ ~]~ ~ n~ ~ for ~' ~ ~ ~ F~ ~ 1~ ~ P~ ~ ~ (6~ ~). ~ ~ m~, ~e ~on ~mo~ d~d- f~ ~ ~~. ~e jolt v~ ~n~ ~ ~e ~mple~on ~ ~ ~ ~, ~ ~nde~_~on J~, 1~. ~e ~mm~on ~ ~ ~ ~e ~ ~~ ~ ~e ~e ~ ~ ~e ~ Bo~ for ~ ~e ~ ~ ~e ~ ~ ~d~ ~e a 'de~!.ngon ~d ~ ~ ~~t ~ ~ ~ ~'s d~ ~ ~ ~ ~t eel ~ ?~ proration and decision of the Town, io~n~ level of developme~ the Town would pern~ 81~8. gll6. M,d~_~ ref~tatement of.the ~ mid the tished a final me fee the proper~y p~wiou~ ~q~de, 8~0 1990 emnple~tou date. OnAprll$0,1O85, deslsmatedRPUD, theJdntventure'sFffth mt the ami voted 6 to 0 that the RPUD exph*ed July. dtstrict court, even ff the'Fifth Amendment h Ck~987); ~ ~ upon W',~,m,,~ end ~ [9] A proper~ owner's rishts are vioht- t~m district decision, and asked either for a variance or & ~d at ~ FRd IM0, 15/6 filth Cfr1989). We dis- quirements f~ due proee~__ elatnm). Because s hr er pr eta- tntrmlve use, to determine what use the imtown~, the Joht ventures due process · series of own~'s properS). RPUD zon~g in 1985, the Jdnt venture'a aended that t, the Town's own actions demonstrate, [I0] Next, the Town contends that the ~theJeht ~ebedsdons would be ihtfle) (e/~ AUle~r We review m~eh f~et~al ~F~t.? for.ele~ 109. ~LCt. 184, 102 L.Fat2d 106 (19~8)). Be- Amee/ce, 904 F2a:l 644, 649 (llth Clr-1990L [11] To deternflne whethc .mment notiee ~d a fair hearing. It cttd ~. [14, lg] Delwlutkm o ' est rbes to the ~vd ~ court mt~t d~ (1) whether the action and 'could not deprive [the joint ventm~e] of arb~wmW and deprives the individual of a comgi~tionslly a~V~h~,g~" due process did nut requ~ notice tional basis. $~oe~ce '~. protected intere~ and (2) whether that.de- of the meeting~ This contention, while F~d ?.56, 258 (11th privation occurred without providing sub- somewhat more comp~ng, meets the same 881 F,9.d at lb'W/; st~ntive or procedural due process, fat~ The district court specifically found 1541. The question befo: C_.,~e. enbriar, 881 F/d 15'/0, lb'W/ (llth Cir. that the Commission delegated the decision er the Town acted in ~n 922 F~d 1536, 15~1 (llth C~r.), cert. ge- to accelerate the completion date to July 1, cious rammer when ~r~e~, ~ U~. , 112 ~Ct. 55, 116 1985, and the facts in the record support this uence 282. We eonchui L.EcL2d 82 (1991). As noted above, the dis- finding. The record demonstrat trict court correctly found tl~ the joint yen- ~ its May 2, 1984 meeting, the Com- upon. the mutml uncle "vested, right* in the EPUD throush 1990. the matter ... to the Plannin~ [Board] for develop the RPUD. In: was denied substantive of iwoeedund, me dec,on in. December, 1984, the C~en unilateral ~.~ Spec venture of the Planning Board's decision, that the ~ venture L Eight to Notice and Fair Hearing On January ~0, 1985, the town _~t____,~ney Mayor's letter declm'lng [12,13] Procoduraldueproeeasrequires .wrote the jotut venture a letter infor~. ~ it as 199~ The town ingfulmaan~.* Bodd~uC, mmect~01 the Town informed it that it 'was th-ed* of peL* Likewise,t~To. Ua g/l, g/8, 91 ~Ct, 780, ~ ~8 I~Ed~' the joint venture's attempts to extend the er's war~ that the 113 (1971) (quotingArmt,m~ ~ Mmu~ 3~0 ItPUD and ~ the Com~t*~ou voted ~,~,J- venture down the U,~ 545, 552, 85 ~LCt. 118~, 1191,14 L.Ed~! mouely that the EPUD ~ in 1985. upon the 1990 completic 62 (1965). In thts case, the evidenoe shows These circumstances demonstrate that the after the ILPUD lapsed, that the Town: (1) failed to provide the Joint Board's decision was not 'merely advisory.* ~ designation to revert venture with notice of its meetings which Town took an extend~ 282; and (2) failed to notify the joint venture notice when it wrote the joint venture eon- of the property. of the P!~nn~ng Board's December, 1984, corn~,~g the Town's review of the completion to accept applications mee(ing, in which the Board voted t9 declare date, and then again when .the P~snn~ previous permits, eve~ the I/PUD at an end in July, 1985. Board reported to the Com,~,,f,)n. These had pronfised such The Town attempts to circumv~t what actions, hewever, did nothing to protect the lng. TMs ev~denee su! would appear to be a glaring due proee~___~ joint venture's due process risht~ The town lng that the Town act~ violation in three way~ ~ the Town attorney's one ~ letter to the joint capricious manner aries that the 1985 emnplet~ date was set venture merely informed it that the ISSUe joint venture's rights. eoneerntns the'RPUD's expiration dat~ lynottfy tbejo~nt venture orallow for s ~. The Town's reliance upo~ Macme v. AOW, I~c., and opporttmifl~ to assert its positio~ before the · t, beeauee the est ri~ez .to the level of er eubetantfve due mq~port. ~ body in'ocezz ~on ff done for fmtn'oper mo- [1'/] The application of ~lIi; ~e~lt~re] of t~es and achieved thr~gh me~us that are law to t specified piece of propert~ effects a ~ while F~d 256, ~58 (llth Cirl .9~9);, ~ ~ vf~d~e u~e of the M'opet~. ~ t~ ~me 881 F~d at 1~ E~ ~ 922 F~ at d the decision e~ the Town net~ tn an ~ nod enprI- state action d,mt,~ a ~ ali or s~b- ed support tl~ nanee ~2. We ecmelode ~ R ~ proper~ tarns un U~e eamomte fmp.~ on CommgudoD. abottt the ~ of Jf~ tO the facts. Botom, 483 U.8. at 606, 107 ~e (kmnission ~Onteral aetiona 8peeifiea~, the attorney 8.Ct. at 8020. Contrary to the Town's eon- ard's deciM~ that the joint ventnre wns ~ upon the case to support the find~g that the Town's town attorney M~r's letter declarh~ the completion date action denied the joint venture the econond- ~ Then, tionedthat~the~~- tvalf%an~C~=NewYorl~K~/,438U~S. 'was tired' of pet" Likewise, the Town ignored the n~r- (1978); ~ ~ $out/~ ~lm enmpletton to aeeel~t applieationn for the retmmnee of' ly to seek zd:mtatenmnt of the 1990 eomple- rtotheJaint eaprieio~ rain,mr without respect to the 1987 and agatn in1990, the Town downzoned hat the issue Joint venture's right~ the proper~ severely limiting its economic d no informs- value to the Joint ventm-e. ~ 'hearing B. Fifth Amendment Tnldugs The Town's actions eanzed a detrimental not ~%quate- [16] The jury also returned verdicts in economic impact to the Joint venture's invest- ~s tfnding is elahn, fi~i~ that the Planning Board's from July, 19~ until 198/, the value of the lgh~0 18 FEDERAL REPORTER, ~d SERIES RESOLUTION TRUST. £ tT'e value ,.Hml~ed to a nuudmum value of mitted to Invite another onto a welcome pemwu~ F~o Ice; ~ ~ $~ - below the jolt ve~ture'8 inithl ~estment of mat away to the detriment of the par~ ~ ~ I~ v. /~e~o~ ~ F.~ ~S~00,000, comp~tely destroy~ the Joh~t luduced ... to stand thereon- A ~t~en is 1561 (11th C~rJ9~9), o~'g 495 U~ · venture'8 investment-backed expectatfons, ent/tled to rely on the assurances and com- 8.Ct. 888, 112 L.Ed~ 100~ (1991). These hots support the con,~_h,~u tlue. the ndtments of a gon~g auf, horfty and if he no abuse, ~ discretion here. To ' Town'8 actions effected a ~,d~ of the Joint does, the zo-~ authorit~ is bound by its . intended effect, the fnJunct/on prov Tire Jury's verdi~ on tim takings issues ~ Coa-~ Orm~ C. otm~ 411 So,~d RPUD. The courts equitable order were purely advisory. Se~ U~ ~ ~ 1008, 101~ (Fla 6th D.C~k 1982) (quoting tt~ Bec~ it must only grant r~ the court ordered rdmstatenent *~f ~ RPUDwouldexp~ssoutJhu~fntheM~y- [221 First, the Town argues t~ ~ for a period of five years, one month ors letter, was not absur& This under- swers to the special verdict .ho% the Joint venture's vested rights). The court 1980 to 1984. and induced the joint venture to rary damages for propert~ the Ju~ able modifics~ous to the approved phma. ~ district court's factual fina~n~.~8 under]y- ~ Because we conclud, htckedsupport fntherecor~ We dfsagr~ doctrine are supported by competent and &angeinpo~lon~rincurredsuchextemive [~1] We also _,e~m the d~rict .court's ~n app~fatste .pemmnent dam obffptfons and expenses that tt would be ~sn_- dfrectlng the Town to grant all reaaon* (questions ~6 and ~ Howe em ltdrness and eommon sense, court and wewfll not disturb the court's nent damage~ Thus, this omJ~ [E]stoppel amounts to nothtng more th~ exm*chm of ~n ~t a ~ ~ permanent dmnages, yielding a RESOLUTION TRUST CORP. v. TOWNOF HIGHLA~ BEACH 1551 Clteml8 FJd IS3~ (lid, Cir. into ·weleome ~ ~ Ic~ S.,4. ~ Su~tfrs~ I~ 018 three different fnteruls (questions ~ 8, 9, dteem~chthat F~1154,169(llthCir.1990~,'~e~R~ andl0~ 'l~s~thedistr~eourt's · mem~lmm- KCt.~8,11~I~_~t2d1006(1991~ Wefmd ess~ry]tolmethequestimsinaw~ythat Tr. DAMAGES fact, and the eourt's Jastructions specifically relied k ~ [ As notecL significant co~u~on arose from called for a eLqsle ~oure for tempom~ dam- the JmT's dmm~es small TJlmaf~, how- age& ~aue, tn answer~ question nm these findings on several fp'ounds, and we this one, your H~nm*. Weweren't sure if 4nt~(mtareto ., rarydma&eeferpropert~theJ~ry~mluedat to nmnber xdz~ [Eml0ba~ ackle~.] Sold at ~f3. form itself~ The speehl verdict eontained 1, 1985, to Anfust. ~6, 1990, the sum of land with andwithout the RPI~ to arrive at the period August 26, 1990, to Mm-ch ~ eourt's * sn spproprl~ .permanent dsms~s fi~dre 1092--the total sum. of $1~150,000 for the ~tell retson- (questions · 6 snd # 7). However, despite period from Jul~ ILl ~ to Moreh nt with pur* the eourt's instruction to the Jury that it 1992. We ire convinced that theJury did fpJuet~ should awsrd permanent dmnqes, the spe- report the loes of use for the period as '~ ..................... ,.~Jt...,~..,.,~.~.,~~_ _questtons requlr'm~ the The district eourt's reeoncflhtion of the ......................... :-.--r, me.,~...~ ..... ~ . .fnm,du~ 18 FEDI~RAL REPOR' SERIES RI~OLUTION YEUS~ ~. v. ~;~ J~ H~ ~ Ill ), ~d ~ ~ ~ o~P~- ~ ~ ~ ~ ~ (J~ 1. 1~ ~ $1~,~I.1° h f~ ~ ~ for ~ ~g- ~ a ~ ~e h~ ~e ~ ~ ~ ~t ~. ~e ~ ~u~' ~ ~e ~ ~e ~ on a ~ ~ ~ ~ ~nd j~s v~ ~e ~ ~e ~d~s ~m~le ~ ~ ~e ~ ~ ~ ~e t~ We ~d ~ ~ ~ ~- ~o~ k ~e ~ on ~e ~on of no ~. ~mp~ ~e f~ ~ef~ ;~e ~ ~o~ ~y, ~ ~. ~y · e ~ ~e ~ ~ ~ ~d ~ a~ ~ ~- ~ ~~, ~e ~ ~ of ~ ~ ~. ~e ~- [~ N~ ~ ~ ~ ~e o~e ~t v~s ~ ~ ~e ~ ~ on ~e ~- ~ ~s ~o~ on ~ ~ ~ ~~~e ~ ~ ~e ~s ~ ~ue ~~~ ~ We~ ~D. We~~n~ ~ ~ ~ F~ 510, T~'s t~,e,'~ ~t v~'s ~ ~ ~ ~ ~ ~ ~ ~d~ ~~~U&~ n~ ~ ~e~t~ue' ~e ~r~. L.~(I~);~ ~~~e~le~of~ v. E~ Li~ ~ ~ on ~ ~u~on ~ ~ue of ~e ~- ' [~] "~e T~ ~ ~ ~t ~e ~- S.~ ~, 7~ 7 L~ ~ ~n ~ not ~e ~me ~m ~ "~ ~on on m~ ~ffi~ ~ ~ ~r not ~ ~~le b~t" ~ '~ ~e d~dopm~t at ~ ~ ~ n~ ~ ~e ~ ~ ~d ~ a n~ ~ ~ ~e ~ ~ ~ hvo~ a ~ndo~-~ ~e~n~~~ for~e ~ ~e ~s ~t ~ ~j~ d~ for p~ b~d~ut ~d ~ ~ ~ ~ ~"E ~' ~ ~ ~e ~s ~ ~ n~ ~. ~t ~o~ ~ ~ ~, ~ ~ ~ ~ ~ ~e n~ ~ ~ [~] ~, ~eT~ ~ ~e ~ ~n~~ ~~c y RESOLUTION TRUST CORP. v. TOWN OF HIG~AN'D BEACH 155~ CiMosI8 F~kl IS36 (lid. Cir. 1994) serts that the court had no factual bssk for return on the property owneFs equity inter- m- the proper time periods involved (July, 1, 'structton was based on Whze/er III, and ture's expert, Jmnes II~_,~-~on, testified as VIL ATTOHNEY~ FEES, entire~ within in its discretion in redu~ Joint venture moved f~ attorney's fees and the award on a pro rata basis to eorrespond eostspursuantto42U~O.§ 1988, audFIL of no error, motion requested attm~ fees for three ~, : different 1aw firms, totalling'$1,T92,09a25 for r- VI. JURY INSTRUCTIONS. 12~L~.~5 hours of work In its memoran- t- [ZS-ZTJ Next, the Town ehanenges the ~.., oppo~-g the award of attorney's fee~ r- district court's instructions on several of the the Town conceded the Joint venture's .enti- struction, as a whole, fairlF and adequately rates billed. ~e district court conducted a n address the issue and correctly state the law. three-day hearing'on the iSSUe d fees, t~_* ~, Fk*itd ~. Lines, 929 F~I 1390, 1394 (gth testimony .from three attorneys and one fee d OirA991). We win not reverse an imperfect expert fc~ the joini venture and an fee expert ~ Jury instruction unless it caused .pre~dicial for the Tow~ Following thefee hearin~ ~e ~ ~ lsc~ ~o6 F~d 1556, 1560 (Fe&Oir. ture for the total ~mount sough~ 1985). Beezuse four of the *~nenged in~ ,. structiom eomemed questions of law for the [29] The Town appeals the sw~rd, rsisfng [~8] "~he Town aho m'gue~ that the tn- Resohtton Trust ~ k m i/~ru- m'~lo~ ~ mu~eit~l lid/~ w~ in error mentali~ of the Untted States beemm it ~ ~ tl~ person pm'ported~ aettng fro' the tns~mt~ntothes~eexten~astheFedend : stantial evidence supports the finding of dele- insure depository institution- 12 U~C. gation o~ authority to the mayor to write the § 1441a(bX1)(A) and (B). ,~e a determin~on of the completion date lng the trial on attorney's fees, the Town Fh~lly, the Town argues that the instrue- dura in oppozition to the Joint ventures mo- tlOrm on dmmm~o~ W~.~e mf~d___p~din~ ~ ~011 for attorney's fees the Town admitted they did not limit recoveryto mm'ket rate of that ~he plaintiffs are the prewOlng party which eh~enfed the collstill~oum~ (t~ Ordi- veslt~re'$ motJoo to mmefld die pie~inf:s to coo. nanees 282, S49 end SS?. This ar~,ument lm:b. fm'm to Ihe evidence. 1554 18 FF, DEa..U., IU~POaTEa, ad ~8 ~~ .~ ~d ~ · ~ i~ ~. We ~ wmp~ ~ on~ ~ ~ of ~ ~ ~ for ~ ~ ~e h~ ~e [~] ~e T~ ~ ~ ~t ~e of'~ Po~ v. ~ ~ ~, o~ ~ ~ ~a ~ ~ ~ Community Redevelopment Agency Delray Beach MEMO TO: Susan Ruby, City Attorney cc: David Harden, City Manager Alison MacGregor-Harty, City Clerk FROM: Christopher J. Brown, Executive Director DATE: December 5, 1997 RE: Request of City Commission for the CRA to Purchase Property The CRA Board of Commissions approved Resolution 97-6 (copy enclosed) at their meeting on Thursday, December 4, 1997, requesting City Commission to authorize the CRA to purchase the following property: Lots 1 and 2 and Lots 28 through 39, inclusive, Block 36, Revised Plat of Block 36, Town of Delray, according to the plat thereof as recorded in Plat Book 5, page 38 of the Public Records of Palm Beach County, Florida, Less the South 20 feet of Lots 29 through 39, inclusive By copy of this letter I am asking the City Clerk to place this item on the next regular meeting of the City Commission. Also enclosed is a copy of the resolution for the City. Thank you. Enclosure 24 N. Swinton Avenue, Delray Beach, FL 33444 (561) 276-8640 / Fax (561) 276-8558 RESOLUTION NO. 89-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ACQUISITION OF CERTAIN REAL PROPERTY AS HEREINAFTER DESCRIBED BY THE DELRAY BEACH COMMIINITY REDEVELOPMENT AGENCY BY GIFT, PURCHASE OR EMINENT DOMAIN; PROVIDING AN EFFECTIVE DATE, AND FOR OTHER PURPOSES. WHEREAS, by Ordinance No. 46-85 adopted by the City of Delray Beach, the City Commission of the City of Delray Beach, Florida, created the Delray Beach Community Redevelopment Agency; and WHEREAS, pursuant to Section 163.370(1) (e) (2), Florida Statutes, the Delray Beach Community Redevelopment Agency possesses the power to acquire by gift, purchase or eminent domain any real property within the community redevelopment area; and WHEREAS, the City Commission of the City of Delray Beach, Florida, has been requested by Resolution No. 97-6, adopted by the Delray Beach Community Redevelopment Agency, to authorize the acquisition in fee simple by gift, purchase or eminent domain, of certain property described therein; and WHEREAS, Section 163.370(1) (e) (2), Florida Statutes, further provides that a community redevelopment agency may not exercise any power of eminent domain unless the exercise has been specifically approved by the governing body of the municipality which established the agency; and WHEREAS, the City Commission of the City of Delray Beach, Florida, desires to approve or authorize the acquisition of the property hereinafter described by the Delray Beach Community Redevelopment Agency by gift, purchase or eminent domain. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the Delray Beach Community Redevelopment Agency is hereby authorized to acquire fee simple title by gift, purchase or eminent domain that certain property more specifically legally described as follows: Lots 1 and 2 and Lots 28 through 39, inclusive, Block 36, Revised Plat of Block 36, Town of Delray, according to the Plat thereof as recorded in Plat Book 5, Page 38 of the Public Records of Palm Beach County, Florida, LESS the South 20 feet of Lots 29 through 39, inclusive. Section 2. That this resolution shall take effect immediately upon passage. PASSED ~D ~OPTED in regular session on this the 9th day of Dece~er, 1997. ATTEST: ~it~ ~[e~k - - 2 - Res. No. 89-97 LUTHER KING JR. DRIVE N.E. 2ND ST. -- Z -- Ci TY ~, L.. HALL > N.W. 1ST ST. N.E. 1ST ST. ~J ~~~ ~ Z ~ CENTER FIRE S TA TION ~. ~ TENNIS OLD ~ COMPLEX COUNTY COURT HOUSE · . 1ST ST. S.E. 1ST ST. S.W. 2ND ST. S.E. 2ND ST, N LYN-RAY CORPORATION PROPERTY OTY OF D£LRAY BEACH, FL PLANNING & ZONING DEPAR']MENT -- DIG/I'AL ~45£ M,,4P SYEi'EM -- MAP REF: LM194 ~x A~OHSTI]K; ~ C~ C~~ OF ~ ? ~t~ ~y hch ~ ~ eac~e Mlo~nt of Cbt Atlant~ A~o ~s~oo Co~L~: OietriaC; ~ ~, ofle o~ the pro~. o~ ~h ~ ~ Plan Is the 'Peach ~:e~l Plaza ZZ ~vel~C Plu' o~ ~e Wes~ A~nt~ A~nue Co~r, s~h p~t as eot fo~h ~ tho ~ . ~e~g ~e~ain ~Au ly~ v~c~ the WoaC Atl~t~ ~, the C~ty ~el~n~ ~en~ has ~baee~ or ~t d~ ~ p~Iu~C to ~C~ ~63.330~ 1969~ ~t ~s ~P~p~la~ to ~oet ~ C~ty of ~ay ~h eutho:~ze ~ ~lray bicb C~t~ bd.el~t ~n~ exo~oo the ~ of ~nont d~n to tho e~ent lC det~neo ~ese~ fo= the .a~ a~ait~on ot ~e P~Aoe ~b ~ h~ E~ated to auth~l~e t~ ~oAtAon o~ the ~ul~vo, lL~k 36, ~ ~Zat of B~k 36, ~n 5, ~ 38 of the t~ ~th 20 feet o~ ~tl 29 ~ 39, ~el~n~ ~ ~e~ d~ee that It Le a~ese~ to :~Ae ReiQlut~n ehall ~ e~ MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~ SUBJECT: AGENDA ITEM # ~' - MEETING OF DECEMBER 9, 1997 WATER TREATMENT PLANT INFORMATION COLLECTION COMPLIANCE DATE: DECEMBER 5, 1997 This is before the Commission to decide which of the two alterna- tive methods should be used by the City to comply with the Information Collection Rule as it relates to the Safe Drinking Water Act. The Information Collection Rule was promulgated by the United States Environmental Protection Agency to give them information regarding raw water quality and costs for various treatment alternatives for Total Organic Carbon removal, in order to establish new maximum contaminant levels for potential cancer causing compounds. The City was mandated by federal regulations to perform testing and analysis of raw and finished water for levels of Total Organic Carbon. We have completed the sampling and analysis per Safe Drinking Water Act requirements. The results disclose average levels of Total Organic Carbon in the City's finished water which require further action for compliance with the Information Collection Rule. The City has two options for compliance with the Rule, payment of a $100,000 fee or bench scale testing, which are detailed in the attached staff report. The specified treatment processes allowed by the Information Collection Rule are (1) membrane treatment or (2) granular activated carbon. Membrane technology is favored due to superior historical performance with South Florida water supplies and lower operation and maintenance costs. Recommend authorization to notify the United States Environmental Agency of the City's intent to comply with the Information Collection Rule using the "bench scale testing of membrane treatment" recommended by staff. Agenda Item No. AGENDA REQUEST Date: 12/3/97 Request to be placed on: Workshop Agenda When: 12/9/97 XX Regular Agenda Special Agenda Description of item (who, what, where, how much): Staff requests Commission authorization to notify the United States Environmental Protection Agency (USEPA) of the City's intent to comply with the Safe Drinking Water Act Information Collection Rule by bench scale testing of membrane treatment for removal of Total Organic Carbons (TOCs) from finished water. TOCs react with chlorine used for disinfection to form Trihalomethanes, a potential cancer causing compound. Approximate cost is $130,000.00. Funding will be identified when approval for testing implementation is requested. ORDINANCE/RESOLUTION REQUIRED: YES/~) DRAFT ATTACHED YES~_~ Recommendation: Staff recommends approval. DEPARTMENT HEAD SIGNATURE: Determination of Consistency with Comprehensive Plan: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available YES/NO Funding alternatives (if applicable) Account No. & Description Account Balance City Manager Review: Approved for agenda: O Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Disapproved MEMORANDUM TO: David T. Harden, City Manager FROM: Richard C. Hasko, P.E., Acting ESD Director SUBJECT: WATER TREATMENT PLANT INFORMATION COLLECTION RULE COMPLIANCE DATE: December 3, 1997 In accordance with United States Environmental Protection Agency (USEPA) requirements under the Safe Drinking Water Act (SDWA) Information Collection Rule (ICR), the City was mandated to perform testing and analysis of raw and finished water at our Water Treatment Plant (WTP) for levels of Total Organic Carbons (TOCs). Our participation was mandated by federal legislation because we use ground water sources for raw water and serve a population greater than 50,000 people. The rule was promulgated to provide USEPA with sufficient information nationwide regarding raw water quality and treatment alternatives for TOC removal to establish new maximum contaminant levels (MCLs) for total Trihalomethanes (TTHM). TTHM's are potential cancer causing compounds which are formed when organic carbons in a raw water supply react with chlorine, commonly used in the water treatment process for disinfection. They are referred to as Disinfection By-Products (DBP) in the context of the SDWA. The threshold for further action under the ICR as applied to the City WTP is an average TOC level of 2 mg/l over a twelve month sampling period. Sampling resulting in lower levels requires no further activity. Sampling resulting in higher levels requires additional testing of TOC removal processes for analysis of cost and effectiveness. We have completed the required sampling and analysis phase per SDWA requirements. Analytical results reflect average levels of TOC's in the City's finished water of approximately 8 rog/1. On this basis, we are required to take further action for compliance with ICR. We currently have two options for compliance with ICR. We can proceed with testing of a specified treatment process at the Plant for TOC removal at an approximate cost of $130,000.00, or we can avail ourselves of a "buy out" clause in the Federal law by paying USEPA $100,000.00 for use at their discretion in testing programs nationwide. The specified treatment processes allowed by ICR are membrane treatment or granular activated carbon (GAC). Membrane technology is favored due to superior historical performance with south Florida water supplies and lower operation and maintenance costs. Staff recommends moving forward with the bench scale testing of membrane treatment for TOC removal. The "buy out" option represents minimum cost involved to remain compliant with Federal legislation and provides no benefit to the City as regards any necessary treatment enhancements to meet future SDWA requirements. In addition, the $100,000.00 would be payable now. Bench scale testing, while somewhat more costly, will provide valuable data useful for future decision making regarding alternative treatment technologies. Time elements involved with implementation of the testing will allow us to budget for funding in FY 1998/99. We are requesting Commission authorization to notify USEPA of our intent to comply with ICR using bench scale testing of membrane treatment. Please place this item on the December 9, agenda for consideration by the City Commission. RCH:cl cc: Don Haley File DBP Monitoring Requirements DBP monitoring requirements are designed to * determine source-water characteristics that influence DBP formation · determine the concentrations of DBPs in drinking water . refine existing models for predicting DBP formation based on treatment and water quality · help to define cost-effective monitoring requirements that protect public health The basic monitoring requirements are presented in Figure ICR-3 and Tables ICR-2 through ICR-6. All community water systems serving populations of >100,000 people will conduct the monitoring summarized in Table ICR-2 and report treatment plant operational data. Treatment plants that use alternative disinfectants or hypo- chlorite solutions must monitor for DBPs of concern for the particular disinfectant used. In determining the population served, systems must include their own popula- tion and populations for all consecutive systems. Monitoring is required for consecutive systems depending on the portion of water received. Systems that receive only some of their water from another supplier must comply with all DBP monitoring requirements. Systems that receive all of their water from another supplier and further disinfect the water must comply with DBP monitoring requirements associated with sampling locations at and subsequent to the entry point to the distribution system. Systems that receive all of their water from another supplier and do not further disinfect this water need not conduct DBP monitoring. Systems that use groundwater not under the direct influence of surface water and that serve between 50,000 and 99,999 people will be required to monitor for total organic carbon (TOC). Sampling will be at the entry point to the distribution system. No other DBP monitoring will be required for these systems. A groundwater system with multiple wells from the same aquifer would sample from one sampling point. DBP Monitoring Locations Source-water monitoring is conducted at the plant influent prior to any treat- ment to characterize the chemical quality of the water being treated. Monitoring within the treatment plant will indicate changes in water quality and how organic precursors are being removed prior to and during filtration. Organic precursor mate- rial is indicated by TOC and ultraviolet absorption at 254 nm (UV254). Monitoring at the point of disinfection will provide data that can be used to relate water quality with DBP concentrations. To re]ate DBP formation to water quality and treatment, monitoring for spe- cific chlorination by-products is required at the following locations: · immediately after filtration, if chlorine is added prior to the filters · at the entry point to the distribution system · at a total trihalomethane (TTHM) compliance monitoring location in the dis- tribution system that can be related to a simulated distribution system (SDS) sample ICR.10 ~ [ Rule appli.~ to nil I I. not - I I ~mmunltyand ~requir~d.~ [ noncommunlty wit. ly. ernl. TiC monltodf~ begin" 3 monthe oftw publiclion of the find rule in the DBP monitoring begin. 3 montbe elter publication of the Iinll rule In the Federal Regimrlnd no Fedlm/Rdlg~'lJr ind liter then October lg95. Prior to the start of monitoring, Wltoml moll errunge to hive .Impbs corfllnuno for 12 mint he. immlyzed by an epproved leboreto~. OnQe e Wi(em his ntlrted DBP monitoring, it taunt continue to monitor for 18 consecutive monthe. Finished wltor TiC monitoring I)egine ' + 3 monthe ifter publication of the fin"/rule in the Feddva/Heg/~t4r ind continuel until III I S,m~,,.d t,d moof~y ~ T~ etI other monitoring is completed. AIl monitoring mo.~ he compistod no islor then Met. 31, 1gO7 entry point to di~flXltlon system. & J I Sample end teet et frequency and location, given in T, ble ICR.2. I T Report iii T04~ monitoring data I ich p,mnuio, ono lymem :hiorumin.e' [ Conduct additlmml --piing ] end t~ting lisled In Table ICRo3. y~ eyitem Y~ Conduct eddition"l · ami)ling end tiding listod In Tebio ICR-4. No ey~tem end tilting limed In Table I C°nduct 'ddltion"' 'mpllng ~ and tiering Ii&ted in ey~tem u~ Table IGR-6. chlorine R~port monitoring date beginning monthe after the ~.lrt of monitoring end monthly thereefter. Report eddltlonll Informntlon Ii,ted In Table ICR-1 ee appropriste. I Figure ICR-3 DBP monitoring requirements under the proposed ICR developing laboratory approval criteria for contaminants that are not currently regulated. Mobilizing the necessary laboratory capacity for monitoring under the ICR will be difficult. USEPA will propose that the starting date for monitoring be delayed if adequate laboratory capacity is not available at the scheduled implementation date. USEPA will also propose that certain analytes be dropped from the list if their inclusion would cause undue delay in monitoring for the other analytes. Monitoring would not be canceled for THMs, haloacetic acids (HAAs), bromate, chlorite, chlo- rate, TOX, TOC, and bromide. Bench-and Pilot-Scale Testing Stage I of the D-DBP Rule will include a requirement to control DBP precur- sors. TOC will be used as a surrogate for these precursors. The reg-neg advisory committee agreed on TOC removal requirements for stage ! based on enhanced coagulation or softening, but some negotiators believed that lower TOC limits should be set in stage 2, which would require the use of granular activated carbon (GAC) or membrane technology. The reg-neg committee agreed that large systems, believed to have the resources to conduct these studies, will evaluate GAC or membranes as part of the ICR. Only certain systems will be required to conduct bench-scale tests, pilot-scale tests, or both (Figure ICR-4). Tests will be conducted at each treatment plant whose TOC concentrations and population served exceed the limits indicated in Figure ICR-4. In systems with multiple treatment plants, tests will be needed at each plant unless the source waters are not significantly different. These tests are necessary to obtain more information on the cost-effectiveness of GAC and membrane technology for removing DBP precursors and DBPs. The tests will also accelerate the time needed for systems to install GAC or membrane technology full-scale if they are required to do so in stage 2 of the D-DBP Rule. Treatment studies are to be designed so that cost estimates can be developed for different levels of control for organic DBPs. Studies are to be conducted on effiu- ent from treatment processes that are already in place for precursor and TOC removal, and samples are to be collected before the point at which oxidants or disin- fectants that form chlorinated by-products are added. If oxidant or disinfectant addi- tion precedes any full-scale treatment process that removes DBP precursors, then bench- and pilot-scale processes that model the full-scale process are to be included prior to the GAC or membrane process. Water supply systems conducting bench- and pilot-scale tests must report treatment process information that is listed in Table ICR-i as appropriate for source water and treatment processes that precede the bench or pilot system. GAC Bench-Scale Tests GAC bench-scale testing is defined as rapid small-scale column tests (RSSCT).2-5 At least two empty bed contact times (EBCTs) shall be tested, designed to represent a full-scale EBCT of 10 minutes and 20 minutes. Water quality meas- urements listed in Table ICR-8 will be required. The RSSCT is to be run until the effluent TOC is 75 percent of the running average influent TOC or an RSSCT operation time is reached that represents the ICR-17 MI oomlmm#y end nontrmmbnt. nonoommun#y we#r that idd · dildn~e~tmnt. I. pdnmrV treatment disinfoetaflt and HAAS ,c Irdlulnt TO~ 14o · . 100,OOO 3, 50,000 No y# Y~ Conduot ~ md/or pik)t-~de etudlee f(~r OAC and/or boginfllng not later#un 18 month. Ioflowing pmmu~gMion, k rq)ofl the oomple~ed Mudy mu~ be mJbml~:l dl.trlx~n to USEPA no IMer th~n Sq)t. 30, lOOT. s 2.0 moA.? Figure ICR-4 Decislon tree for conducting DBP precursor removal studies under the proposed ICR equivalent of one year of full-scale operation, whichever is shortest. Pretreatment conditions, GAC type, GAC particle diameter, height and dry weight of GAC in the RSSCT column, RSSCT column inner diameter, volumetric flow rate, and operation time at which each sample is taken are to be reported for each RSSCT. RSSCTs are to be conducted quarterly for one year to evaluate seasonal vari- ations. Therefore, a total of four RSSCTs at each EBCT is required. If the first- quarter RSSCT shows that the effluent TOC reaches 75 percent of the average influent TOC within 20 full-scale equivalent days for an EBCT of 10 minutes and within 30 full-scale equivalent days for an EBCT ot~ 20 minutes, then the last three quarterly tests are to be conducted using membrane bench-scale testing with one membrane. ? ICR-18 Table ICR-8 Sampling required under the proposed ICR for GAC bench-scale systems Sampling Point Analyses Sample Frequency GAC influent Alkalinity, total and Two samples per batch calcium hardness, ammonia, of Influent evenly spaced and bromide over the RSSCT run GAC Influent pH, turbidity, temperature, TOC, Three samples per batch and UV2s4; SDS for THMs, HAA6, of influent evenly spaced TOX, and chlorine demand over the RSSCT run GAC eftluent pH, temperature, TOC, and A minimum of 12 samples; at an EBCT of 10 rain UV2s4; SDS for THMs, HAA6, one after 1 hour and thereafter (scaled) TOX, and chlorine demand at 5-8 percent increments of the average influent TOC GAC effluent pH, temperature, TOC, and A minimum of 12 samples; at an EBCT of 20 rain UV~--~4; SDS for THMs, HAA6, one alter 1 hour and thereafter (scaled) TOX, and chlorine demand at 5-8 percent increments of the average influant TOC Membrane Bench-Scale Tests Membrane bench-scale testing is defined as reactors placed in such a configura- tion as to yield representative flux loss assessments for membranes. A minimum of two membrane types must be tested. Both are to have nominal molecular weight cutoffs of <1,000. Tests are to be conducted quarterly for one year to evaluate sea- sonal variations. Therefore, a total of four tests must be run with each membrane. Water quality testing for membrane bench-scale studies is summarized in Table ICR-9. Pretreatment conditions, membrane type, membrane area, configura- tion, inlet pressure and flow rate, reject pressure and flow rate, permeate pressure and flow rate, recovery, and operation time at which each sample is taken must be reported for each membrane test. GAC Pilot-Scale Tests GAC pilot-scale testing will be continuous flow, using a column with a mini- mum inside diameter of 2 in. The GAC particle size and hydraulic loading rate are to be representative of those used in full-scale practice. At least two EBCTs are to be tested--an EBCT of 10 minutes and an EBCT of 20 minutes. GAC pilot tests are to be run until the effluent TOC is 75 percent of the run- ning average influent TOC concentration, with a maximum run length of one year. Testing must be sufficiently long to evaluate seasonal variation in water quality. Water quality monitoring is summarized in Table ICR-10. Pretreatment condi- tions, GAC type, GAC particle diameter, height and dry weight of GAC in the pilot column, pilot column inner diameter, flow rate, and operation time at which each sample is taken are to be reported for each pilot plant. ~ Membrane Pilot-Scale Tests Membrane pilot-scale testing is defined as continuous-flow tests using mem- brane modules with a minimum of a 4.0-in. diameter for spiral-wound membranes or equivalent membrane area if other configurations are used. The membrane test ICR-19 Table ICR-11 Sampling required under the proposed ICR pilot-scale membrane systems Sampling Point Analyses Sample Frequency' Membrane infiuent pr. alkalinity, total dissolved A minimum of 15 samples solids, turbidity, temperature, to be taken at the same time total and calcium hardness, as the membrane permeate ammonia, bromide. HPC. TOC. samples and UV~,s4; SDS for THMs. HAA6. TOX. and chlorine Membrane permeate pr. alkalinity, total dissolved A minimum of 15 samples solids, turbidity, temperature, evenly spaced over the total and calcium hardness, membrane run ammonia.t bromide. HPC. TOC. and UV2s4; SDS for THMs. HAA6. TOX. and chlorine demand *More frequent monitoring of flow rate and pressure will be required to accurately assess flux loss. 1'If present in Ihe inlluent. system must be designed to assess flux loss. Testing must be done throughout the year and must be sufficient in length to evaluate seasonal variations, with a maxi- mum run length of one year. Water quality monitoring requirements for membrane pilot tests are summa- rized in Table ICR-11. Pretreatment conditions, membrane type, configuration, stag- ing, inlet pressure and flow rate, reject pressure and flow rate, permeate pressure and flow rate, recovery, operation time at which each sample is taken, cross-flow velocity, recycle flow rate, backwashing and cleaning conditions, and characteristics and ultimate disposal of the waste stream will be reported for each membrane pilot test. SDS Testing SDS testing with chlorine is included in all bench and pilot studies to deter- mine THMs, HAA6 (mono-, di-, and trichloroacetic acid, mono- and dibromoacetic acid, and bromochloroacetic acid), TOX, and chlorine demand. The holding time, temperature, and chlorine residual for SDS testing are to correspond to the SDS distribution sample taken for DBP monitoring. If chlorine is not used as the final disinfectant in practice, then a chlorine dose should be set to yield a free chlorine residual of 0.2 mg/L after a holding time equal to the largest period of time water is expected to remain in the distribution system or seven days, whichever is shorter. ICR Implementation USEPA will be enforcing the provisions of this 'rule once promulgated. S~ates will not be involved in its implementation and will not be required to obtain primacy for the ICR. USEPA estimates that the proposed ICR will result in a total cost burden of between $118 and $149 million to be expended over a three-and-a-half year period, ICR-21 Table ICR-12 Total cost and burden estimates for the proposed ICR* ~I~ Cost (KS) Burden (hours) Respondents NI Per .NI Per Affected Respondents Respondent Respondents Respondent Compliance Activities: Start-up Activities: ~ 1,395 surface water systems >1 OK 1,725 plants 468 0.27 14,579 8.4 165 groundwater systems >50K 165 systems 47 0.29 1,485 9.0 Subtotal 515 16,064 Microbial Monitoring: 1,395 surface water systems >1OK 1,725 plants 11,761 7 200,205 116 DBP Monitoring: 233 surface water systems >100K 440 plants 22,126 50 163,967 373 59 groundwater systems >100K 1,295 trealment 34,402 27 257,260 199 sites Subtotal 56,529 421,227 1,395 surface water systems >1OK 1,725 plants 3,881 2 124,200 72 Pilot Studies 233 surface water systems >100K 178 plants1' 48,300 271 322,000 1,809 165 groundwater systems >50K 33 systems'~ 8,550 259 57,000 1,727 Subtotal 56,850 379,000 Total 129,536 1,140,696 *Tolal costs and burden over 18 months, excepl for pifo( studies, which extend over 2t/~ years. l'Sudace wa~' treatment plants with inltuent TOC >4 mg/t.; groundwater treatment plants with effluent TOC >2 mg/t.. summarized in Table ICR-12. The agency's DBP monitoring cost estimates are sum- marized in Table ICR-13. Implementation of this rule will be a major undertaking for beth water utilities and the agency. USEPA has designated the agency's Safe Drinking Water Hot Line (1-(800) 426-4791) as its source of information and answers to questions regarding the ICE. Water suppliers may call the hot line with ICR implementation questions. The hot line will either answer the question immediately or take the caller's name and number, consult USEPA experts to find the answer, and 'return the call. USEPA is working cooperatively with AWWA and other organizations to develop training programs for the ICR and related needs. Additional information regarding the specific details for laboratory approval and training will be forthcom- ing from the agency and AWW~ To assist in implementing the ICR, AWWA executed a contract with McGuire Environmental Consultants Inc. in January 1994. A portion of this contract is the formation of an ICR assistance team (A-team). The A-team members will act as points of contact to answer questions and generally help utilities design sample col- lection programs and input the data. A-team members will not only communicate with conventional means (telephone, FAX, and mail correspondence) but use the on-line service, CompuServe, to provide answers to questions. Using CompuServe, any water supplier will be able to electronically post a message or question and receive a response from the A-team. Details of how to get connected to the Compu- Serve system for ICR implementation have been provided by McGuire.6 ICR-22 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS SUBJECT: AGENDA ITEM ~ ~G- REGULAR MEETING OF DECEMBER 9, 1997 RESOLUTION NO. 88-97 (PARKING MANAGEMENT TEAM) DATE: DECEMBER 5, 1997 At the October 28th workshop, the City Commission was asked to review the 1992 resolution that created the Parking Management Team (PMT) and provide direction on whether or not to formally establish the board as an advisory body. Direction was also requested on membership, responsibilities, staff support and various other aspects. It was the consensus of the Commission to establish the PMT as a formal advisory body, subject to the City Attorney's review of the dual office holding aspect. The City Attorney researched this matter and presented her opinion by memorandum to the City Commission dated November 18, 1997 (copy attached). In summary, the Commission may create the Parking Management Team as an official board of the City. If the Commission keeps the duties of the board as strictly advisory, the members of the Parking Management Team would not be holding "office" and the appointment of a CRA, DDA or P&Z member would not present a dual office holding violation of the Florida Constitution. Resolution No. 88-97 establishing the Parking Management Team as a formal advisory board is before the Commission for consideration. The board will be composed of seven (7) members and will function in a manner similar to the other boards of the City. If the resolution is acceptable to the City Commission as drafted, I recommend that it be approved. If changes are desired, direction should be provided. Once finalized, staff will begin the process to secure applications for consideration and formal appointment by the Commission. ref:agmemo7 RESOLUTION NO. 88-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ESTABLISHING THE PARKING MANAGEMENT TEAM AS AN ADVISORY BOARD TO THE CITY COMMISSION; PROVIDING FOR THE PARKING MANAGEMENT ADVISORY BOARD'S PURPOSE; PROVIDING FOR THE BOARD'S COMPOSITION, APPOINTMENT OF MEMBERS AND TERMS; PROVIDING A GEOGRAPHIC AREA WITHIN WHICH THE PARKING MANAGEMENT ADVISORY BOARD SHALL OPERATE; PROVIDING GENERAL PROVISIONS FOR ORGANIZATION AND OPERATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Parking Management Team was created as a task team by the City Commission with the adoption of Resolution No. 121-92, as subsequently amended by Resolution No. 39-93; and WHEREAS, the City Commission finds that parking and related issues within certain areas of the City have become of utmost importance and should be addressed in an organized and structured manner; and WHEREAS, the City Commission finds it to be in the best interests of the City of Delray Beach to establish the Parking Management Team as a formal advisory board. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the Parking Management Advisory Board is hereby established as an advisory body to the City Commission pursuant to the provisions set forth herein, and repealing Resolution Nos. 121-92 and 39-93. Section 2. That the Parking Management Advisory Board is hereby created for the purpose of advising and making recommendations to the City Commission with respect to parking management policy and related issues including, but not limited to, the planning, financing, development, construction and operation of parking facilities in accordance with the provisions of this resolution. Section 3. That the Parking Management Advisory Board shall be composed of seven (7) regular members, with representation as follows: (a) A representative from the Community Redevelopment Agency; (b) A representative from the Downtown Development Authority; (c) A representative from the Planning and Zoning Board; (d) A business owner/operator representing the Old School Square Historic Arts District; (e) A business owner/operator representing the Atlantic Avenue corridor between Swinton Avenue and Interstate 95; (f) A business owner/operator representing the Atlantic Avenue corridor between Swinton Avenue and the Intracoastal Waterway; and (g) A business owner/operator representing the Atlantic Avenue and State Road A1A corridors lying east of the Intracoastal Waterway. The Community Redevelopment Agency, the Downtown Development Authority and the Planning and Zoning Board shall recommend appointees, with the City Commission having the authority to approve and ratify all recommendations for membership. The balance of the Parking Management Advisory Board membership shall be appointed directly by the City Commission. The members of the Parking Management Advisory Board shall serve for terms of two (2) years, except that the members of the first board to serve shall be appointed so that three (3) members shall serve one (1) year terms and four (4) members shall serve two (2) year terms. It is further provided that no member may serve more than two successive terms on the Parking Management Advisory Board. Section 4. That the geographic area within which the Parking Management Advisory Board shall operate is defined as the boundaries of the Transportation Concurrency Exception Area (TCEA), a map of which is attached hereto and made a part hereof, as well as all public parking areas located along State Road A1A within the corporate limits of the City of Delray Beach, as currently exist or as may exist in the future. Section 5. The Parking Management Advisory Board shall be organized and shall operate as follows: (a) The Parking Management Advisory Board shall elect a Chairperson and Vice-Chairperson to preside at its meetings and any other officers the board may deem necessary. - 2 - Res. No. 88-97 (b) The Parking Management Advisory Board shall hold meetings on a regular basis at least once monthly, which meetings shall be open to the public. Minutes shall be kept of all such meetings, and any special meetings, with copies of said minutes and any other reports to be transmitted to the City Commission and the City Manager. (c) The Parking Management Advisory Board shall have technical and logistical support provided as designated by the City Manager. (d) The Parking Management Advisory Board shall be subject to the provisions of Chapter 32, "Departments, Boards and Commissions", of the Code of Ordinances of the City of Delray Beach, except as modified by this resolution. Section 6. That this resolution shall become effective immediately upon passage. PASSED AND ~OPTED in regular session on this the 9th day of Dece~er, 1997. ATTEST: ..... ~ity Cl~k - 3 - Res. No. 88-97 I I [ITY DF DELIII:lY BEI:I[# CITY ATTORNEY'S OFFICE TELEPHONE 561/243-7~e~,7~~6~14755 DELRAY 8~CH AII.Am~a ~i~ ~MOR~~ ~ TO: Ci~ Co~ssion FROM: Sus~ A. Ruby, Ci~ Auo~ey S~JECT: Par~g Ma~gement Te~ - Proposed Members~p - Dual O~ce Hold~g The City Commission was advised by the Parking Management Team that they wished to become an official City Board. The proposed Parking Management Team Board (PMTB) includes a CRA, DDA, and P&Z member. Our office researched the constitutionality of including a CRA, DDA and P&Z member. The Florida Constitution, Article II, Section V(a), prohibits the holding of more than one "office". An "office" is a position which exercises a portion of the sovereign power. State ex rel. Holloway v. Shears, 83 So.2d 508 (Fla. 1919); AGO 9045. It is the nature of the powers and duties permitted to be exercised as a board which determines whether a member is holding an "office." Serving on a board that is an advisory body only would not constitute the holding of an "office." For example, the Attorney General has opined that a member of a planning and zoning board, having only advisory powers, was not holding an office for constitutional purposes (AGO-86-185). However, the Attorney General's Office has opined that a county planning and zoning board member sitting on a planning board that made some f'mal decisions appealable to the County Commission was holding an "office." AGO 90-33. Therefore, the City's P&Z members having similar powers to those referred to in AGO 90-33 would be holding "office.' Therefore, if the City Commission delegates powers to the PMTB which constitute a grant of final authority appealable to the City Commission, or appealable to circuit court, the PMTB Board members would be deemed to be holding office, and a P&Z board member would be prohibited from holding both offices unless the "allied duties" exception referred to below was applicable. If, however, the PMTB duties were City Commission November 18, 1997 Page 2 advisory only, then there would not be a dual office holding prohibition with or without applying the "allied duties" exception. The "allied duties" exception allows membership on two boards where the duties of both boards are closely and definitively allied. In such cases, the newly assigned duties are viewed merely as an addition to existing responsibilities and are not violative of the dual office holding prohibition. See, City_ of Rivera Beach v. Palm Beach Coun_ty Solid Waste Authori.ty, 502 So.2d (Fla. 4DCA 1987); State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla. 1955). It is my recommendation that if the Commission decides to give the PMTB more than advisory powers and decides to give PMTB responsibility to exercise a portion of the City's sovereign power, that an Attorney General Opinion be obtained. The purpose of obtaining the Attorney General Opinion would be to determine if the duties of the PMTB are definitively allied with existing P&Z functions and thus, would not violate the dual office holding prohibition, and to determine if there would be a conflict of interest. In the alternative, the City may want to make the PMTB an official City board with advisory powers only so as to circumvent any potential claim of dual office holding. Turning now to the CRA member issues, Florida Statutes §163.367 prohibits CRA board .members from holding another office. Thus, if the PMTB were given more than advisory powers (constituting an office) the CRA member could not serve on the board. It is my opinion that the "allied duties" exception set forth above would not apply to the CRA member. The exception appears to have been negated for CRA members by statute. Therefore, only if the PMTB duties are solely advisory would it not constitute an office, and under the statute, the CRA member could serve on the PMTB. Contrarily, if the PMTB duties are more than advisory, the CRA member could not serve on the board. The DDA membership on the PMTB is governed by Special Act. The Special Act, Section 4, provides, "It [the DDA] is hereby constituted a body corporate and an agency of the City; and performance by the authority of its duties and exercise of its powers are hereby designated municipal functions and shall be so construed.' Further-in Section 4, subsection (c) of the Act, the Act provides that to qualify or remain qualified for membership on the DDA, a prospective or current member "... shall not [serve] as a city . officer or employee." The Supreme Court has stated that a special district created to perform a special governmental function would not constitute an "office" and thus there would be no dual office holding prohibition. In re: Advisory. Opinion to the GQvernor - Dual Office Holding, 630 So.2d 1055 (Fla. 1994). However, in this case, the special act governing the DDA would appear to provide otherwise prohibiting a DDA member serving as a City officer. If, however, the PMTB is given advisory powers only, the DDA member could serve on the PMTB without being considered a City officer. City Commission November 18, 1997 Page 3 In summary, the Commission may create the PMTB as an official board of the City. If the Commission keeps the duties of the board as strictly advisory, the members of the PMTB would not be holding "office" and the appointment of a CRA, DDA or P&Z member would not present a dual office holding violation of the Florida Constitution. Please call if you have any questions. cc: David T. Harden, City M&nager Alison Harty, City Clerk Diane Dominguez, Planning & Zoning Director dualofc.sar MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ['~// SUBJECT: AGENDA ITEM # ~/fL_ REGULAR MEETING OF DECEMBER 9, 1997 APPOINTMENT TO THE AFFORDABLE HOUSING ADVISORY COMMITTEE AND ADOPTION OF RESOLUTION NO. 87-97 DATE: DECEMBER 4, 1997 With the automatic resignation of Thomas Hinners from the Affordable Housing Advisory Committee, a vacancy has been created for an "Advocate for Low Income Persons" Mr. Hinners, a citizen-at-large, had been serving in that capacity. The appointment will be to fill an unexpired term ending March 31, 1999. The Affordable Housing Advisory Committee meets on a bi-monthly basis (or as needed) for the purpose of developing strategies to provide housing to meet a wide range of economic abilities. City residency is not required. Only one application has been received specifically for the position of "Advocate for Low Income Persons", as follows: William Square The following citizens-at-large have also applied for consideration: Joseph D'Ambrosio Joseph Farkas Edward McCall Ilse Nathan Pravin C. Shah If any additional applications come in, they will be forwarded to the City Commission for review. A check for code violations and/or municipal liens was conducted. None were found. The appointment will be made by Commissioner Schmidt (Seat #1). Appointments to the Affordable Housing Advisory Committee are formalized by resolution. Therefore, staff recommends the appointment of an "Advocate for Low Income Persons" to fill an unexpired term ending March 31, 1999. Once the appointment is made, formal adoption of Resolution No. 87-97 is requested. ref:agmemo5 ,,~Z). ~'~ ~ ~ '/7/- O RESOLUTION NO. 87-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, APPOINTING A MEMBER TO THE AFFORDABLE HOUSING ADVISORY COMMITTEE, PURSUANT TO STATE LAW; PROVIDING AN EFFECTI~ DATE. WHEREAS, the State of Florida, under specific authority established by State Statute, has established the State Housing Initiative Partnership (SHIP) Program, which re~ires the City to establish an Affordable Housing Advisory Committee; and WHEREAS, the Affordable Housing Adviso~ Committee was established pursuant to Ordinance No. 2-93, passed and adopted on second and final reading by the Delray Beach City Commission on February 23, 1993; and WHEREAS, a vacancy currently exists on the Affordable Housing Advisory Committee for an unexpired term ending March 31, 1999; and WHEREAS, the City Commission wishes to appoint a member to the Affordable Housing Advisory Committee to fill said unexpired term. NOW, THEREFORE, BE IT RESOLED BY THE CITY COMMISSION OF THE CITY OF DELP~AY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the following member of the Affordable Housing Advisory Committee is hereby appointed by the City Commission to fill an unexpired term ending March 31, 1999: Joseph D'Ambrosio (Advocate for Low Income Persons) Section 2. That this resolution shall become effective immediately upon passage. PASSED AND ~OPTED in regular session on this the 9th day of December, 1997. ATTEST: J~ity ~ie~k ' ' MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~I'~ SUBJECT: AGENDA ITEM # ~- REGULAR MEETING OF DECEMBER 9, 1997 APPOINTMENT TO THE NUISANCE ABATEMENT BOARD DATE: DECEMBER 4, 1997 N. Jean Heinly, alternate member on the Nuisance Abatement Board, has resigned from her position. This creates a vacancy for an alternate member to fill an unexpired term ending March 31, 1999. The Nuisance Abatement Board was established to hear evidence relating to the existence of certain public nuisances on premises located in the City. The board consists of five regular members and two alternate members. Members must be residents of the City and are appointed by an affirmative vote of at least four members of the City Commission. The following have submitted applications for consideration: Mary Alford Michael Coston (resides in the North 4 months/year) William O. Eisaman Willie Potts, Jr. George A. Rotchford Vera Scott Jimmy Weatherspoon A check for code violations and/or municipal liens was conducted. Copies of violations for non-conforming landscaping and for an abandoned vehicle are attached to Mr. Weatherspoon's application. The appointment will be made by Commissioner Ellingsworth (Seat #3) . Recommend appointment of an alternate member to the Nuisance Abatement Board to complete an unexpired term ending March 31, 1999. ref:agmemo6 2905 Salerno Way Delray Beach, FL 33445 November 19, 1997 City of Delray Beach Nuisance Abatement Board 100 NW 1 st Avenue Delray Beach, FL 33444 Attn: Anita Barba, Executive Assistant Gentlemen: Please be advised that I was honored to be selected to serve as an Alternate Member of the Nuisance Abatement Board earlier this year. However, I have discovered that the scheduled time of the meetings, Mondays at 3:30 P.M., is an almost impossible time for me to be away from my employment requirements at First Southern Bank Because of these time constraints, I must regretfully submit my resignation from the Board. Hopefully, I will be able to serve the City of Delray Beach in some other manner in the future. Sincerely, CITY OF DEL~Y BMACH BOARD M~MBER APPLICATION NA~E Mrm. Vera Sqott 909 S.W. llth Terr. Delray Beach FL 33444 HOMV~ ADD~.ESS (Street, City, Zip Code) (LEGAL RESIDENCE) SAME ~RINCL?AL BUSINESS ADDtLESS (Street, City, Zip Code) HOME PHONE 276-9945 BUSINESS PHONE ON WHAT BOARDS ~ YOU INTERESTED IN SERVING Nuisance Abatement LIST ALL CITY BOARDS ON WHICH YOU ARB CURRENTLY SERVING OR HAVE ?RZ~IOUSLY SERVED (Please include dates) N/A EDUCATIONAL QUALIFICATIONS High. School Education LIST AN~ RELATED PROFESSIONAL CERTIFICATIONS AND LICENSES WHICH YOU HOLD GIVE YOUR PRESENT, 0R MOST RECENT ~MPLOYER, AND P0SITION Homemaker DESCRIBE EXPERIENCES, SKILLS 0R K~NOWLEDGE WHICH QUALIFY YOU T0 SERVE 0N THIS BOARD Presently I serve as vice president of Delray Beach Height Homeowners Association. PLEASE ATTACH A BRIEF RESUME. I HEREBY CERTIFY THAT ALL THE ABOVE STATEM~TfS ERE TRUE, AND I AGREE AND UNDEESTAND THAT AN~ MISSTATEMENT OF MATERIAL FACTS CONTAINED IN THIS APPLICA- TION MA~ CAUSE FOP. FEITUEE UPON MY PART OF ANY APPOINTHENT I MA~ RECEIVE. Vera Scott 909 S.W. 11th Terrace Delray Beach FL 33444 561-276-9945 Objective: To serve as a member of the Nuisance Abatement Committee. Highlights: · 4 years as vice president of Delray Heights Homeowners Association · 26 years as resident of Delray Beach Heights · community leader (1990 to present) · strong communication skills · ability to work well with others Education: High School Employment: Retired Committees: · former vice president of missionary society · former chairman of benevolence committee · choir member of St. Paul A.M.E and Delray Community Choir · member of Herines of Jericho MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM ~ ~- REGULAR MEETING OF DECEMBER 9, 1997 APPOINTMENTS TO THE CODE ENFORCEMENT BOARD DATE: DECEMBER 5, 1997 The terms for JoAnn Peart, Barbara Holden, Beril Kruger and Lynn Gardner will expire on January 14, 1998. Mrs. Peart, a regular member (layperson serving in the capacity of enqineer), is not interested in being considered for reappointment. Ms. Holden, a regular member (layperson serving in the capacity of architect), is eligible and would like to be considered for reappointment. Mr. Kruger, a regular member (businessperson), has served two full successive terms and is not eligible for reappointment. Ms. Gardner, an alternate member (real estate person), is eligible for reappointment and would like to be considered for regular membership as well as alternate membership. The term is for three years, ending January 14, 2001. All members of the Code Enforcement Board must be residents of the City. Appointments to both regular and alternate member positions shall be made on the basis of experience or interest in the fields of zoning and building control. The membership shall, whenever possible, include an architect, a businessperson, an engineer, a general contractor, a subcontractor and a realtor. The code states that the architect and the enqineer shall be registered under the laws of the state, or shall have actual experience deemed by the City Commission to be equivalent to such registration. The realtor shall be licensed under the laws of the state licensing real estate brokers, or shall have actual experience deemed by the Commission to be equivalent to licensing. The businessperson shall be actively engaged in any lawful business within the city and shall hold a current and valid occupational license issued by the city, or shall be an officer or employee of a business entity so licensed by the city, or shall have actual experience deemed equivalent by the City Commission. The applicants are listed by position on the next page. A check for municipal liens and/or code violations was conducted. None were found. The appointments will be made as follows: Mr. Egan (Seat #2) Regular member (engineer) Mr. Ellingsworth (Seat #3) - Regular member (architect) Mr. Randolph (Seat #4) Regular member (businessperson) Mayor Alperin (Seat #5) - Alternate member (realtor) Mr. Egan and Mayor Alperin have deferred their appointments to the regular meeting of January 6, 1998. Recommend appointment of two regular members (architect and businessperson positions) to the Code Enforcement Board for three year terms ending January 14, 2001. No applications are on file for enqineer, regular member. However, the following realtor has applied: Lynn Gardner (incumbent, alternate member) No applications are on file for architect, regular member. However, the following has applied: Barbara Holden (incumbent, layperson serving in the capacity of architect) No applications are on file for businessperson, regular member. However, the following realtor has applied: Lynn Gardner (incumbent, alternate member) The following application is on file for the real estate person, alternate member: Lynn Gardner (incumbent, alternate member) The following laypeople have also applied for both regular and alternate membership: Michael Coston (resides in the North for 4 months per year) Anthony Veltri ref:agmemol CODE ENFORCEMENT BOARD 1997 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec James Griffis P/P P/P A/P P/A A/P P/P P/P P/P A/A A/P P /P John Goodman P/P P/P P/A A/P P/P P/P P/P P/P P/P P/P P /P JoAnn Peart P/P P/A P/P P/P P/P A/P A/P A/P P/P A/P A/P Barbara Holden A/P P/P P/P A/P A/A P/P P/P P/A A/P P/P P /A Beril Kruger P/P P/P P/P P/P P/P P/P P/P P/P A/P A/P P /p Robert McDonald (appnt 10/97) P P /A Martin Bellsey (appnt ~ag. 9/97) P P /P ALTERNATES Lynn Gardner (appnt 2/97) A/A P/P P/P P/P P/P P/A P/A P/A P/P P /A gtanley Watsky (appnt 10/97) A/A CODE ENFORCEMENT BOARD 1996 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec James Griffis P/P P/P P/P P/P P/P A/A P/P A/A A/A P/A A/P P John Goodman ?/P P/P P/P P/A P/A P/P P/P A/P P/P A/? P/A P JoAnn Peart P/P P/P P/P P/A P/P A/P P/P P/P P/P P/P P/A P Barbara Holden (appnt reg member 6/96) P/P P/P P/A P/P P/P P/A P Richard Eckerle P/P P/P P/P P/P P/P P/P 'P/P P/P P/P P/A P/P P Beril Kruger P/P P/P P/P P/A P/A A/P P/P A/P P/P P/A P/P P David Henninger A/A P/P P/P A/P P/P P/A P/A P/A A/A P/A P (Appnt reg. 1/96) Alternates: Chris C. Stray A/A A/P P/A A/P P/A P/A A/A A/A A/P A/A A/P A Martin Bellsey (appnt 6/96) A/A P/A A/A A/P A/A A (appnt 1/96) MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: DAVID T. HARDEN, CITY MANAGERI~// SUBJECT: AGENDA ITEM # /0-~- REGULAR MEETING OF DECEMBER 9, 1997 ORDINANCE NO. 32-97 (ADOPTION OF COMPREHENSIVE PLAN AMENDMENT 97 - 1 ) DATE: DECEMBER 4, 1997 This is second reading and the adoption hearing for Ordinance No. 32-97 which enacts Comprehensive Plan Amendment 97-1. The City Commission passed the ordinance on first reading on September 9, 1997, and authorized the amendment's transmittal to the Department of Community Affairs (DCA) for review. The results of the DCA review were received in the attached Objections, Recommendations, and Comments Report (ORC) on December 1, 1997. The complete Response to ORC Report is also attached. Comprehensive Plan Amendment 97-1 was initiated with the adoption of the Evaluation and Appraisal Report (EAR) on July 9, 1996, and implements the recommendations made in that report. Each element of the Comprehensive Plan was revised to update information and the status of objectives and policies. The elements were also reformatted to improve readability and logic, and to better track the State rule requirements. In addition, information and policy directives were added, deleted and modified as recommended in the adopted EAR, and as subsequently directed by the City Commission. During the DCA review process, staff performed a detailed edit of the document. None of the changes resulted in a change in growth management philosophy or in the direction of the transmitted document. Examples are provided in the documentation provided from the Planning and Zoning Department. Recommend approval of Ordinance No. 32-97 on second and final reading. ref:agmemo8 ORDINANCE NO. 32-97 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ADOPTING COMPREHENSIVE PLAN AMENDMENT 97-1 PURSUANT TO THE PROVISIONS OF THE "LOCAL GOVERNMENT COMPREHENSIVE PLANNING AND LAND DEVELOPMENT REGULATION ACT", FLORIDA STATUTES SECTIONS 163.3161 THROUGH 163.3243, INCLUSIVE; ALL AS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" ENTITLED "COMPREHENSIVE PLAN AMENDMENT 97-1" AND INCORPORATED HEREIN BY REFERENCE; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach exercised the authority granted pursuant to the provisions of Florida Statutes Sections 163.3161 through 163.3243, known as the "Local Government Comprehensive Planning and Land Development Regulation Act"; and WHEREAS, via Ordinance No. 82-89, the City Commission adopted the document entitled "Comprehensive Plan - Delray Beach, Florida"; and WHEREAS, the Planning and Zoning Board, as Local Planning Agency, did prepare an amendment to the Comprehensive Plan entitled "Comprehensive Plan Amendment 97-1"; and WHEREAS, the Planning and Zoning Board, as Local Planning Agency, following due public notice, held a public hearing on August 25, 1997, in accordance with the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act"; and WHEREAS, after the above referenced public hearing, the Planning and Zoning Board, as Local Planning Agency, recommended to the City Commission that the proposed Comprehensive Plan Amendment 97-1 be transmitted; and WHEREAS, proposed Comprehensive Plan Amendment 97-1 was submitted to and reviewed by the City Commission; and WHEREAS, following due public notice, the first of two required public hearings on Comprehensive Plan Amendment 97-1 was held by the City Commission on September 9, 1997, at which time it was authorized to be transmitted to the Department of Community Affairs for required review; and WHEREAS, a report of Objections, Recommendations and Comments (ORC) has been received from the State Department of Community Affairs and said report has been reviewed by the Planning and Zoning Board, as Local Planning Agency; and WHEREAS, following due public notice, the second of two required public hearings on Comprehensive Plan Amendment 97-1 was held on December 9, 1997, in accordance with statutory requirements. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELP~AY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, hereby declares its intent to exercise the authority granted pursuant to the provisions of Florida Statutes Sections 163.3161 through 163.3243, inclusive, known as the "Local Government Planning and Land Development Regulation Act" Section 2. That in implementation of its declared intent as set forth in Section 1 of this ordinance, there is hereby adopted the document entitled "Comprehensive Plan Amendment 97-1", which is attached hereto as Exhibit "A" and incorporated herein by reference. Section 3. That the document entitled "Comprehensive Plan - Delray Beach, Florida" is hereby amended pursuant to the document entitled "Comprehensive Plan Amendment 97-1" Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Section 6. That this ordinance shall become effective upon the date a final order is issued by the Department of Community Affairs finding the amendment to be in compliance in accordance with Chapter 163.3184, F.S.; or the date a final order is issued by the Administration Commission finding the amendment to be in compliance in accordance with Chapter 163.3184, F.S. PASSED AND ADOPTED in regular session~on s~oRd and final reading on this the 9th day of December, 19~ ~ V ~AY~ R JCity-d~rk ' First Reading September 9, 1997 Second Reading December 9, 1997 - 2 - Ord. No. 32-97 TO: D/k~/Id T_ HARD/E~I, CITY MANAGER FROM: F PLANNING AND ZONING SUBJECT: MEETING OF DECEMBER 9, '1997 ** PUBLIC HEARING ** ADOPTION OF COMPREHENSIVE PLAN AMENDMENT 97-'1 (EAR- BASED AMENDMENT) The action requested of the City Commission is that of adopting Comprehensive Plan Amendment 97-1 (EAR-based amendment). Comprehensive Plan Amendment 97-1 was transmitted to the Florida Department of Community Affairs (DCA), for review, at a public hearing on September 9, 1997. This meeting was also the first reading of the Adoption Ordinance (No. 32-97). During the DCA review process, staff performed a detailed edit of the document. Changes resulting from the staff edit included format, correction of typos, and adjustments for internal consistency. None of these changes resulted in a change in growth management philosophy, or in the direction of the transmitted document. Examples of changes to the goals, objectives, and policies include the following: Conservation Policy B-2.2, regarding the preservation of sensitive flora and fauna during development, was clarified to allow mitigation where preservation is not possible or appropriate. Open Space and Recreation Policy A-3.1, calling for the provision of tot lots and recreation areas in new residential developments, was revised to be consistent with a similar policy (B-2.2) in the Housing Element. Coastal Management Policy D-3.3, regarding commercial development on the barrier island in the area of Atlantic Ave./SR A1A, was found to be redundant and deleted. City Commission Documentation Adoption of Comprehensive Plan Amendment 97-1 (EAR-Based Amendment) Page 2 Future Land Use Policy ^-2.3, which was called for in the EAR but inadvertently omitted from the transmitted Comprehensive Plan, was added. This policy states that the development of remaining vacant properties shall occur in a manner which is consistent with and complimentary to adjacent development, regardless of zoning designations. Future Land Use Policy D-1.1, regarding the policy toward racial balance in schools, was expanded to specify the City's goals in addition to those of the School Board. The results of the DCA review were received, in the attached Objections, Recommendations, and Comments Report (ORC) on December 1, 1997. The ORC report contained several objections, most of which could be answered by further explaining information already in the Comprehensive Plan. One policy, Future Land Use Policy D-3.5, and one map, Map #27, were slightly revised in response to objections in the ORC report. The complete Response to ORC Report is attached. By motion, approve adoption Ordinance 32-97 on second reading. Attachments: · ORC Report and Response to ORC Report · Ordinance 32-97, including Exhibit "A" consisting of Comprehensive Plan Amendment 97-1 S:\adv\comp\971CC3 COMPREHENSIVE PLAN AMENDMENT 97-1 (EAR-BASED) RESPONSE TO ORC REPORT The Florida Department of Community Affairs raised several objections in their review of the proposed Plan Amendment. Each of the objections is described below with a response. Ob!ection: Future Land Use Policy D-3.5, providing for public school education facilities siting, was found to be over broad and open ended. The policy did not clearly identify the land use categories in which public schools are an allowable land use. Response: Policy D-3:5 has been revised to cleady state that public educational facilities are consistent with all land use categories except Conservation. Ob!ection: The Transportation Element does not include maps depicting significant parking facilities or bicycle and pedestrian ways, nor does it contain policies regarding the establishment of parking strategies. Response: Significant parking facilities, other than those required for specific sites such as shopping centers, occur only in the downtown area. These are described in text (page TR-2) rather than on a map. In addition, these facilities are mapped in the report establishing the Transportation Concurrency Exception Area (TCEA), which was adopted as part of Comprehensive Plan Amendment 95-2, and is referenced in the Comprehensive Plan. Separate bicycle ways are provided only on collector and arterial roads under the jurisdiction of the County and State. Therefore, these facilities were not mapped in the City's Comprehensive Plan. However, the City has included several policies to support and enhance the provision of bicycle ways. These include Transportation Policy D-2.1, requiring a shared facility design (14 foot outside travel lanes) for collector and arterial roads; and Transportation Policy D-2.2, requiring bicycle parking for all new development, with emphasis to be placed on development within the TCEA. Transportation Policy D-3.5 requires the City to install additional bicycle parking facilities in the TCEA in FY 98/99. Pedestrian ways in the City take the form of a sidewalk system on local, collector, and arterial roads. Since this system occurs throughout the City, it was Page 1 not mapped separately from the road system. A number of policies address continuation and expansion of the sidewalk system, including Transportation Policies D-1.1 and D-1.2 (new development); Transportation Policies D-3.10 and D-3.11 (sidewalks in the TCEA); Public Facilities Policy Eo3.2 (development of a street system master plan); and Public Facilities Policy E-3.3 (city-wide sidewalk system. The need for parking strategies in Delray Beach is focused in the downtown, in the area covered by the TCEA. The policies under Transportation Objective D-3 discuss the development of plans and implementation of strategies to improve mobility, including parking utilization, in the TCEA. Objection: The Transportation Element does not include maps depicting the Future Transit System Route, Future Bicycle and Pedestrian Facilities, Future Traffic Network, Future and Existing Major Trip Producers and Attractors, and Future and Existing Hurricane Evacuation Routes. Response: The Future Transit System Route is under the jurisdiction of Palm Beach County through PalmTran. Such a map would be more appropriate in the County's Comprehensive Plan. However, the City has included policies to endorse continued operation of the transit system, and committed to coordinate with Palm Tran to improve the system (Transportation Policies A-1.3 and D-3.4). As discussed above, the City addressed bicycle and pedestrian facilities through text and policies rather than maps. This is believed to be most appropriate due to the nearly built out condition of the City, and the types of facilities addressed (sidewalks along streets and shared bicycle facilities on collector and arterial roads). The Future Traffic Network is included (see Map #12). Existing roadway lanes are shown on Map #13. Projected improvements are shown on Table T-8 (year 2000, and Table T-9 (year 2015). Major Trip Producers and Attractors are shown on Map #18. The built out condition of the City makes significant changes in the future unlikely. The Hurricane Evacuation Routes are shown on Map #19. Again the built out condition of the City makes changes in these routes unlikely. Page 2 Ob!ection: Coastal Management Objective C-7 refers only to the barrier island, while the associated map depicts a portion of the Coastal High Hazard Area on the mainland. Response: A subtitle has been added to Map #27 to clarify that it depicts the generalized limits of the Coastal High Hazard Area. A description on page CM-7 defines the evacuation area for a category 1 hurricane (the definition of the Coastal High Hazard Area) as limited to the barrier island within the City. Based on this description, together with the map revision, Objective C-7 is adequate to limit public expenditures in the Coastal High Hazard Area. Objection: The Coastal Management Element does not address measures to reduce exposure to hazards as the result of being in the Coastal High Hazard Area, including relocation, structural modification, and public acquisition. Response: The City has described measures to reduce exposure to hazards as a result of being in the Coastal High Hazard Area through both text and policies. As described in the inventory and analysis, the City maintains a beach nourishment project to provide storm protection, and is essentially built out in the Coastal High Hazard Area. The City is the upland owner of half the City's beach frontage. Continuation of the beach nourishment program is committed to through contracts with the state and federal governments as well as Objective A-1. Development and redevelopment are controlled through several policies (A-1.1, C-3.1, C-3.2, C-3.3, C-5.1, and C-6.1). In addition, a post disaster redevelopment plan is called for in Objective D-3 to address both short and long range redevelopment. It should also be noted that the potential for flooding in the Coastal High Hazard Area is addressed through the standards in the building regulations, including requiring finished floor elevations significantly higher than the vertical limits of the Coastal High Hazard Area, and through the implementation of the Stormwater Master Plan, including installation of pump stations in Iow lying areas on the barrier island. Taken together, these measures reduce exposure to hazards and eliminate the need for separate policies regarding relocation, structural modification and public acquisition of facilities and land in the Coastal High Hazard Area. S:\adv\comp\971 ORC 1 Page 3 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Helping Floridians create safe, vibrant, sustainable communities" LAWTON CHILES JAMES F. MURLEY Governor Secretary ¢~,.fi 1 1997 The Honorable Jay Alperin, Mayor City of Delray Beach PI_ANN lNG & ZON lNG 100 Northeast, 1st Avenue Del,ay Beach, Florida 33444 Dear Mayor Alpefin: The Department has completed its review of the proposed Comprehensive Plan Amend- ment for the City of Delray Beach (DCA'No. 98-1ER), which was received on September 17, 1997. Copies of the proposed amendment have been distributed to appropriate state, regional and local agencies for their review and their comments are enclosed. I am enclosing the Department's Objections, Recommendations and Comments (ORC) Report, issued pursuant to Rule 9J-11.010, Florida Administrative Code (F.A.C.)i The issues identified in this ORC Report concern inadequate policies regarding public school siting, transportation facilities mapping, and the modification of uses within the coastal high hazard area. It is very important that the adopted plan amendment address these issues, and all of the objections in the Department's ORC Report. Upon receipt of this letter, the City of Delray Beach has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed amendment. The process for adoption of local government comprehensive plan amendments is outlined in Section 163.3184, Florida Statutes (F.S), and Rule 9J-11.011, F.A.C. The City of Delray Beach must ensure that all ordinances adopting comprehensive plan amendments are consistent with the provisions of Section 163.3189(2)(a), F.S. Within ten working days of the date of adoption, the City of Del,ay Beach must submit the following to the Department: 2555 SHUMARD OAK BOULEVARD · TALLAHASSEE, FLORIDA 32399-2100 Phone: 850.488.8466/Suncom 278.8466 FAX: 850.921.0781/Suncom 291.0781 Internet address: http://www.state.fl.us/comaff/dca.html fLOIUOA KEYS G~EEN SWAA~P 9:)UTH [~tOl[IO& I~E(:O¥1~.Y OffICE Area ol'Critical Slale Concern Fidd O~ce Area o/Critical State Concern Field Office P.O. Box 4022 2796 Overseas Highway, Suite 212 I SS East Surnmedin 8600 N.W. 36Ih ~ee{ Marathon, FIo'ida 33050-2227 Barlow. F~orida 338304641 Miami, Ho,ida 331594022 The Honorable .lay Alperin November 26, 1997 ' Page Two Three copies of the adopted comprehensive plan amendments; A copy of the adoption ordinance; A listing of additional changes not previously reviewed; A listing of findings by the local governing body, if any, which were not included in the ordinance; and A statement indicating the relationship of the additional changes to the Department's Objections, Recommendations and Comments Report. The above amendment and documentation are required for the Department to conduct a compliance review, make a compliance determination and issue the appropriate notice of intent. In order to expedite the regional planning council's review of the amendments, and pursuant to Rule 9.l-11.011 (5), F.A.C., please provide a copy of the adopted amendment directly to the Executive Director of the Treasure Coast Regional Planning Council. Please contact Robin Branda, Planner IV, Roger Wilbum, Community Program Adminis- trator or Charlie Gauthier, AICP, Growth Management Administrator, at (850) 487-4545 if we can be of assistance as you formulate your response to this Report. Sincerely, .l. Thomas Beck, Chief Bureau- of Local Planning JTB/rbj Enclosures: Objections, Recommendations and Comments Report Review Agency Comments cc: Diane Dominquez, Director, Planning & Zoning Michael Busha, AICP, Executive Director, Treasure Coast Regional Planning Council DEPARTMENT OF COMMUNITY AFFAIRS OBJECTIONS, RECOMMENDATIONS AND COMMENTS FOR THE CITY OF DELKAY BEACH Amendment 98-1ER November 26, 1997 Division of Resource Planning and Management Bureau of Local Planning TI~ report is prq~ar~ pursuit to Rule 95-11.010 INTRODUCTION The following objections, recommendations and comments are based upon the Department's review of the City of Dekay Beach proposed amendment to their comprehensive plan pursuant to s. 163.3184, Florida Statutes (F.S.). Objections relate to specific requirements of relevant portions of Chapter 9J-5, Florida Administrative Code (F.A.C.), and Chapter 163, Part 1I, F.S. Each objection includes a recommendation of one approach that might be taken to address the cited objection. Other approaches may be more suitable in specific situations. Some of these objections may have initially been raised by one of the other external review agencies. If there is a difference between the Department's objection and the external agency advisory objection or comment, the Department's objection would take precedence. Each of these objections must be addressed by the local government and corrected when the amendment is resubmitted for our compliance review. Objections which are not addressed may result in a determination that the amendment is not in compliance. The Department may have raised an objection regarding missing data and analysis items which the local government considers not applicable to its amendment. If that is the case, a statement justifying its non-applicability pursuant to Rule 9J-5.002(2), F.A.C., must be submitted. The Department will make a determination on the non-applicability of the requirement, and if the justification is sufficient, the objection will be considered addressed. The comments which follow the objections and recommendations section are advisory in nature. Comments will not form bases of a determination of non-compliance. They are included to call attention to items raised by our reviewers. The comments can be substantive, concerning planning principles, methodology or logic, as well as editorial in nature dealing with grammar, organization, mapping, and reader comprehension. Appended to the back of the Department's report are the comment letters from the other state review agencies and other agencies, organizations and individuals. These comments are advisory to the Department and may not form bases of Departmental objections unless they appear under the "Objections" heading in this report. OBJECTIONS, RECOMMENDATIONS, AND COMMENTS Proposed Plan Amendment 98-1ER CITY OF DELRAY BEACH 1. CONSISTENCY WITH RULE 9J-5, AND CHAPTER 165 . The Department raises objections to the following proposed changes. A. Future Land Use Element: Objection: Policy D-3.5, providing for public school education facilities siting within the "Community Facilities" zoning district is broad and open ended, and lacks comprehensive plan predictability as to the suitability and compatibility of sites for public schools relative to adjacent or nearby uses. Therefore, the city did not clearly identify the land use categories in which public schools are an allowable use, as required pursuant to Section 163.3177(6)(a), Florida Statutes (F.S.). Recommendation: The Future Land Use Element should clearly identify land use categories in which public schools are an allowable use. When delineating the land use categories in which public schools are an allowable use, the City should include in the categories sufficient land proximate to residential development to meet the projected needs for schools in coordination with public school boards and may establish differing criteria for schools of different types or sizes. Additionally, the City should include lands contiguous to existing school sites, to the maximum extent possible, within the land use categories in which public-schools are an allowable use. B. Transportation Element: Objection: The proposed element does not include existing maps depicting significant parking facilities or bicycle and pedestrian ways, nor does it contain a policy or policies regarding the establishment of parking strategies. [Pule 9J-5.019(2)(a) and (4)(c)3., Florida Administrative Code (F.A.C.)] Recommendation: Provide maps for existing parking facilities, sidewalks, and bicycle paths. These should be clearly labeled as "existing" and "future". An additional policy or policies should be included in the element to provide parking strategies to promote the overall goals and objectives of the Transportation Element Ob_iection: The proposed element does not include all requirements for the Transportation Map Series. The map series does not include a Future Tran.qt System Route, Future Bicycle and Pedestrian Facilities Map, Future Traffic Network Map (including number of lanes for each roadway), a future and existing map of Major trip producers and attractors, and a future and existing map of Hurricane Evacuation Routes. [Rule 9J-5.019(5)(a) 1., 2., 3., and 9I-5.019(5)Co), F.A.C.I Recommela~tafion: The City should revise the Transportation Element map series to include maps for the following: Future Transit Systems Route, Future Bicycle and Pedestrian Facilities, Future Traffic Network (including number of lanes for each roadway), major trip producers and attractors, and hurricane evacuation routes (future and existing). C. Coastal Management Element: Ob_iection: Objective C-7 of the Coastal Management Element is not adequate because it does not provide for the limitation of public expenditures which subsidize development in the Coastal · High Hazard Area. The Objective only refers to the "barrier island" of the community, whereas the data and analysis, and map, depicts a portion of the Coastal High Hazard Area within the mainland area of the City Limits. [Rule 9J-5.012(3)Co)5., F.A.C.] Recommendation; Revise the Objective, or provide an additional policy to limit public expenditures that subsidize development in the Coastal High Hazard Area, except for restoration/enhancement of natural resources. Ob_iection: The proposed element does not address measures to reduce exposure to hazards as the result of being in the Coastal High Hazard Area, including relocation, structural modification, and public acquisition. [Rule 9J-5.012(2)(e)l., 2., 3., and 0)5., 6., and 8., and (c)5., and 7., F.A.C.] Recommendation: Revise the element to include policies which address measures to reduce exposure to subject hazards. The policies should contain measures for relocation, structural modification, and public acquisition of facilities and lands in the Coastal High Hazard Area. CONSISTENCY WlTIt STATE COM~REItENSIVE PLAN (Chapter 187, F.S.) Ob_iection: The proposed amendments are not consistent with and do not further the State Comprehensive Plan, including the following provisions [Rule 9J-5.021 (1), F .A.C. ]: (9) Coastal and Marine Resources, Goal (a), Policies 3., and 6. - (16) Land Use, goal (a), Policy 6. (20) Transportation, Goal (a), Policies 3., 12., and 15. 2 Recommendation: Revise the amendment to be consistent with and further the above referenced policies of the State Comprehensive Plan. Specific recommendations are included following the objections above. Memorandum To: David Harden, City Manager /3_ Thru: Lula Butler, Community Improvement Director[JO From: Michael Simon, Interim Community Development Coordinator Date: December 3, 1997 Subject: HOPE III Contract for Sale/239 N.E. 9th Street ITEM BEFORE THE COMMISSION This is to request approval to execute a Contract to sell a housing unit acquired through the HOPE III Program to a very low income eligible family of six who are at 60% of median household income consisting of a two parents with four dependent children. BACKGROUND The unit to be sold is located at 239 N.E. 9th Street in Delray Beach. We purchased the property on June 24, 1996 at a cost of $54,400. The unit has three bedrooms and one&l/2 bath with a square footage of 1,296. The rehabilitation has been completed to the unit at a cost of $19,000 and has appraised for $76,000. The total purchase price including closing costs is $78,720.00. Federal regulations require that the unit be sold at appraised value. Because the buyer for this property only qualified for a $55,000 first mortgage, we have the flexibility in this program to attach a subordinate mortgage for the difference between the first mortgage amount and the appraised value. The applicant is contributing 2% towards the purchase of the unit. Therefore a Promissory Note in the amount of $22,220.00 will be recorded as a subordinate second mortgage in the public record. The note stipulates a full recapture provision for the first six years with a decrease of 168th of the original balance per month for the next 14 years. If the unit is sold by the purchaser before the six year point on the note expires, only the amount of down payment, principal payments and property improvements made by the purchaser will be available to he/she/them at the sale. RECOMMENDATION Staff recommends approval to execute the contract to sell HOPE III unit to the eligible homebuyer and authorize the execution of the required Second Mortgage. CONTRACT FOR SALE AND PURCHASE PARTIES: The CITY OF DELRAY BEACH, a Florida municipal corporation, ("Seller"),- of 100 N.W. Ist Aveaue, Delray Beach, Florida a3~44 (Phone: 40%243-7000) and Porf±r±o Maisonet & Debb±e Shoun ", ("Buyer'S, of HOPE 3 Uni.t_.239 NE 9.th .St' Del. ra~ Beach, FL 33444 ~l!one: hereby agree that the Seller shall sell and the Buyer shah buy the following re~ prop¢~y ("Real Prope~y") and personal prope~y' ~Person~lty'~ (collectively-for Real Estate Transactions attached ("Standard(s)") and any addendum to this in.~trument I. DESCRIPTION: (a) Legal description of Real Prope~y' located in Palm Beach Coullty, Florida:. _Lot .26,, Blo6k 9 Dell Park: Plat Book 8, Pag, e ~.6._.. CO) Street address, city/zip, of the Property is:' . .. -- 239 N.E. 9th Street, Delray Beach, FL 3344/* (C) Personalty: II. PURCHASE PRICE: ~a$~.~3.c.e.$.7.6.,.0.0.0. p~.u.s..C.l.o.s.(Rg$.~,.7.20 $ .78,720 (a) Deposit(s) to be held in escrow by N/A in the the amount of $ Co) Additional escrow deposit witbln I~/A days after Effective Date in the amount of $ (c) · Subject to.AlqD assumption ofmortgage in good standing ,- in favor of ~/A having an approximate present principal balance of $ (d) Purchase money mortgage and mortgage note bearing annual interest at 8. 125 % (see Addendum) herein, in an amount of $ (e) 0fl~er: Homebuyer Assr.stance from the Seller to be $.. 22.,220 .. -~ecured by Promissory Note/2ud Mortgage attached. (~ Balance to close (U.S. cas~ LOCALLY DRAWN certified or cashier's check), subject to adjustments and prorations $, 1,, 500" III. TIME FOR ACCEPTANCE; EFFECTIVE DATE: If this offer is not executed by and delivered to all parties OR FACT OF EXECUTION communicated in writing between the parties on or before ;.lanuarv .2, 19.98, the deposit(s) will, at Buyer's opt!on, be returned to Buyer and the offer withdrawn. A facsimile copy of this Contract for Sale and Purchase ("Contract") and any signatures hereon shall be considered for all purposes as 'originals. The date of this Contract ("Effective Date") will be the date when the last one of the Buyer and the Seller has signed this offer. IV. FINANCING: (a) If the purchase price or any part of it is to be financed by a third-party loan, this Contract is conditioned on the Buyer obtaining a written commitment for (CHECK (1)or (2) or (3)): (1) · a fixed, (2) . El an adjustable or (3) El a fixed or adjustable rate loan within 60 days after Effective Date, at an initial interest rate not to exe.~xl 8. 125.. %, termof 30 years and for the principal amount of$ 55,000 . buyerwill make application within 60 days after Effective Date-and use reasonable diligence to obtain the loan commitment and, thereafter, to meet the terms and conditions of the commitment and close the loan. buyer shall pay .all loan expenses. If Buyer. fails to obtain the commitment or fails to waive Buyer's rights under this subparagraph within the time for obtaining the commitment or after diligent effort fails to meet the terms ai~d conditions of the commitment, then. either party thereafter by prompt written notice to the other may cancel the Contract and Buyer shall be refunded the deposit(s). V. TITLE EVIDEI~CE: At least 7 days before closing date, geller shall, at Selle~'s expense, deliver to Buyer or Buyer's attorney, in accordance with Standard A, (CHECK (1) or (2)5: (I) O abstract of title or (2) X] title insurance commitment and,' after closing, owner's policy of title insurance. VI. CLOSING DATE: This transaction shall be dosed and the deed and other dosing papers delivered on or before January 2, 1998, unless extended by other provisions of Contract. V..IL RESTRICTIONS; EASENI]g~$; LINI1TATIO1N$: Buyer shall take rifle subj&:t to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority; restrictions and matters appearing on the plat. o.r othenvise common to the. subdivision; Public utility easements of record (easements are to be loeated"e6'ntiguous to Keal Property lines and not mo/'e than 10 feet in width as to the rear or f/'bnt lines and 7 ½ feet in width as to the side lines, unless otherwise spec',fied herein); taxes for year of closing and subsequent years; assumed mortgages and purohase money mortgages, if any; provided, that there exists at closing no violation of the foregoing and none of them prevents the use of Real Property for residential purpose(s). VIII. OCCUPANCY: Seller warrants that there are no parties in occupancy other than Selle~, but if Property is intended to be rented or occupied beyond closing, the fact and terms. thereof shall be stated herein, and the tenant(s) or occupants disclosed pursuant to Standard F. geller agrees to deliver occupancy of Property at time of closing unless otherwise stated herein. If occupancy is to be delivered before closing, Buyer assumes all risk of loss to Property from date of occupancy, shall be responsible and liable for maintenance from that date, and shall be deemed to have accepted Property in their existing condition as of time of taking occupancy unless otherwise stated herein or in a separate writing. IX. TYPEWRrrrEN OR HANDW~N PROVISIONS: Typewritten or handwritten provisions shall control all printed provisions of Contract in conflict with them. X. RIDERS: (Check if any of the following Riders are applicable and are attached to this Contract): a)__ Coastal Construction Control Line Rider b)__ FHANA Rider c)~ Other. XI. ASSIGNABILrrY: (Check (1) or (2)): Buyer (1) __ may assign or (2) __ may not assign Contract. XII. ' SPECIAL CLAUSES: (Check (1) or (2)): Addendum (1)__ is attached OR (2)__is not applicable. TIME IS OF THE ESSENCE OF THIS CONTRACT. XIV. DISCLOSURES: Buyer__ acknowledges or ~ does not acknowledge receipt of the agency/radon/compensation and estimated closing costs disclosure. ~ BUYER'S INITIALS. SELLER: City of Delray Beach, Florida By: lay Alperin, Mayor ATTEST: ....... Deputy City Clerk Print Name Print Name I HEREBY CEKTIP/that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgements, personally appeared , who are personally known to me or who have produced FL. as identification and who executed the foregoing instrument and acknowledged before me that their exocuted the same. WITNESS my hand and oJ~ial seal in the County and State last aforesaid this aq~l~day of_~[-x,~' , A.D. 1997.~ ) ~ .. ~ c4.~;,.~[~s~0~;t.;? '6~ Notary Public St~ae of Flo~d[a ! _- .~am~ ,~_ ~. .. ,,.y,~o,,-,-ss,on.~xmres: ~-: '~ ~ "' *** ~ Commission AGENDA REOUEST Request to be placed on: Date: December 3.1997 Regular Agenda Special Agenda Workshop Agenda xxxx Consent Agenda When: December 9. 1997 Description of item (who, what, where, how much): Request approvi~l to execute contract for sale under the HOPE III Pro,am of the unit located at 239 N.E. 9th Street to an income eligible household. (Example: Request from Atlantic High School for $2,000 to funds project graduation). ORDINANCE / RESOLUTION REQUIRED: YES/NO Draf~ Attached: YES/NO ' Recommendation: Staff recommends approval and execution of the contract for sale. (Example: Recommend approval with funding from Special Events Account No. 001- 3333-555-44.55). Department Head Signature: ~ ~~iiii~ i City Attorney Review/Recommendation (if applicable):. Budget Director Review (required on all items involving expenditure of funds): Funding Available: YES/NO Funding Alternatives: .(if applicable) Account No. & Description: Account Balance: City Manager Review: HoldAppr°veduntil:f°r Agenda: ~/NO ~/l/// Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Disapproved s:\commun- 1 \cd\cdbgrant\agen form.doc Boca Raton News, Tuesday December 9, 1997 7B Boc,l Raton NewS, Tuesday December 2, 1997 ?~1~ MEMORANDUM To: Alison Mac-Gregor Harty, City Clerk Thru: Lula Butler, Community Improvement Director ff~ From: Michael Simon, Interim Community Development Coordinator .,~'~ Subject: HOPE III Program Property Sale Date: November 26, 1997 Please publish the attached article in the December 2nd and December 9th, 1997 issue of The News. This is a Notice of Public Hearing for the Community Development Division's HOPE III program. Please send a copy of the publication affidavit and the article to the Community Development Division when recieved for our records. If you require any additional information or clarification needed, call me at ext. 7282. Thank you for your assistance. NOTICE OF INTENT TO SELL REAL PROPERTY NOTICE IS HEREBY GIVEN, that the City of Delray Beach, Florida, has determined to sell the following described property: Lot 26, Block 9 Dell Park, Delray Beach, according to the Plat thereof recorded in Plat Book 8, Page 56 of the Public Records of Palm Beach County Florida. The sale of the property is for public purpose pursuant to a contract entered into between the City of Delray Beach and Porfirio Maisonet & Debbie Shoun under the HOPE III program. Further information, as available, may be obtained from the City Manager's Office in City Hall located at 100 N.W. 1st Avenue, Delray Beach, Florida 33444. The City Commission of the City of Delray Beach, Florida, shall hold a public hearing on the proposed sale at their regular City Commission meeting of December 9, 1997 at 7:00pm in the City Commission Chambers, City Hall.