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10-08-13 Workshop MeetingCITY COMMISSION LktLl?:X1 tff:1[ H CITY OF DELRAY BEACH, FLORIDA WORKSHOP MEETING - TUESDAY, OCTOBER 8, 2013 6:00 P.M. DELRAY BEACH CITY HALL r� 20U1 The City will furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Contact the City Manager at 243 -7010, 24 hours prior to the program or activity in order for the City to reasonably accommodate your request. Adaptive listening devices are available for meetings in the Commission Chambers. WORKSHOP AGENDA 1. Discussion of Design Guidelines for the Beach Property Owners' Association 2. Discussion regarding waivers to the Code of Ordinances for Special Events 3. Discussion of Commission Votes 4. Discussion regarding Advisory Board Appointments 5. Commission Comments 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. MEMORANDUM 'A z TO: Mayor and City Commissioners FROM: Paul Dorling, AICP, LEED (GA), Director Planning and Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: September 4, 2013 SUBJECT: AGENDA ITEM WS.1 - WORKSHOP MEETING OF OCTOBER 8, 2013 DISCUSSION OF DESIGN GUIDELINES FOR THE BEACH PROPERTY OWNERS ASSOCIATION ITEM BEFORE COMMISSION Discussion of possible changes to the Beach Property Owners Design Manual. BACKGROUND The potential changes are broken into two categories, technical items which have been identified as ongoing issues that have come to the attention of both City staff and staff of Urban Design Kilday Studios as part of past project reviews. Representatives from Urban Design Kilday Studios will be in attendance to discuss these specific items as noted in the attachments. The second category is related to more subjective design related items which have been identified as a result of recently approved home designs. These recent home designs appear "out of character" and have prompted revisiting of design guidelines which address preserving the "preferred" vision of the Beach Property Owners Association neighborhoods. These standards contain design elements that are currently broken into "required, preferred, discouraged and prohibited" categories. The "required" and "prohibited" standards are mandatory while "preferred" and "discouraged" standards are discretionary. Representatives from the Beach Property Owners Association (BPOA) will be in attendance to discuss potentially moving some discretionary elements (preferred or discouraged) to the mandatory elements (required or prohibited) category to prohibit certain design scenarios. 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L � "8 CL U w m az °.�Q z Q) E o O O 4� U �WQ L v- l t ra� _ O 0 UE C c ui Q Z cr V a bA C �L aI z U X 0 O N 41 CtA co GS. memorandum TO: MAYOR CARY GLICKSTEIN - CITY OF DELRAY BEACH CANDI JEFFERSON, PLANNER - CITY OF DELRAY BEACH ANDREW KATZ, BPOA PRESIDENT ROBERT CURRIE, BPOA TOM LAUDANI, BPOA FROM: SANDRA MEGRUE, UDKS DATE: OCTOBER 1, 2013 urban design il Urban Planning and Design Landscape Architecture Communication Graphics CC: KEN TUMA, UDKS PROJECT NAME: BEACH PROPERTY OWNERS DESIGN MANUAL UPDATE UDKS PROJECT #:05- 020.001 UDKS LABOR CODE: PL In response to our meeting on September 18, 2013, at the office of Currie, Sowards, Aguila Architects, we have prepared this memorandum outlining those discussions and the possible actions to be explored to modify the Beach Property Owners Design Manual (the "manual "). The goal of the proposed modifications is to address the current needs and sensitivities of the property owners within the Beach Property overlay district (the "property owners "). The manual was approved by the Delray Beach City Commission and is dated March 15, 2005. Since becoming enforceable, there have been a number of applications that, although meeting the criteria outlined in the manual, have given property owners cause for concern, thereby prompting these discussions regarding the need to update the current version of the manual to address the concerns and provide more clarity for users of the manual. From the meeting, we understand that the property owners' concerns relate to the following neighborhood concepts and the manual's current capacity to address them. The major concepts we discussed are: a) Address the scale and massing of buildings to be compatible with surrounding neighborhood. 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.udkstudios.com LCC000035 BPODM UPDATE October 1, 2013 Page 2 b) Use of architecturally compatible features and /or materials to create a greater connection with the existing neighborhood character and style. c) Increase sensitivity of applicants to the synergy of the existing community during the design process. To address the above concerns, the following categories should be explored: 1. Recommendations: a. Supplement the regulations for lot coverage with a Floor Area Ratio (FAR) calculation method to regulate the mass of homes proposed on aggregated lots. Floor Area Ratio is calculated by taking the Square Footage of a building and dividing by the Lot Size. b. Develop regulations that restrict the visual impact of story height. More specifically, develop regulations that restrict visible third floors, thereby eliminating the discouraged low roof pitches and inverted dormers and restricting plate heights, to ensure appropriate visual scale. c. Supplement the current regulations to encourage, through positive incentive (bonus points /relief from specified manual regulations), the use of genuine and relevant elements of proposed architectural styles and discourage faux style elements. For example, encourage uses of functional overhangs, awnings, substantive architectural features that are customary to the proposed architectural style and discourage uses of elements that are not substantive or are decorative only and /or not consistent. d. Add mandatory review /comment by the BPOA of all applications that exceed a specified threshold, i.e. 21 points. e. Provide new iteration of manual in positive format. f. Encourage more open space in front yards and adaptation of proposed architectural designs and layouts through use of added incentives. Current regulations require a 30 foot front setback for the R -1 -AA and 35 foot front setback for the R -1 -AAA, with additional upper setbacks required for use of increased lot coverage incentives. g. Increased landscape and setback requirements for use of specified discouraged architectural styles. 2. Review for original intent: a. Review the current regulations for original intent of Discouraged and Prohibited elements, i.e.: (see attached for complete listing) i. Requirement of muntins on all elevations and percentages required. ii. Allowance of certain discouraged items in the rear of proposed residences at a reduced threshold point allocation. BPODM UPDATE October 1, 2013 Page 3 iii. Quantitative review of current point allocation system. 3. Clarify /Define (see attached for complete listing): a. Landscape Point System. b. `Front Yard' versus `Front Elevation'. c. Requirements for Intracoastal and Oceanfront residences. d. Lot area calculations for waterfront lots, i.e. what lands may be used for lot coverage calculations, etc. e. Add photos /sketches, where possible, to provide more clarification for manual users and reviewers. f. Rear loaded garage incentive. g. Exemption rules for exterior and /or interior renovations. h. Blank wall requirements to ensure that large expanses of wall area on upper or lower stories are not created. i. Define `substantial articulation' to some degree. j. For renovations, provide degree of additional landscaping, setbacks, etc., required for uses of existing discouraged elements. k. Landscape requirements for all yards and intent of screening structure from those angles. Add that off -site landscape does not apply. -A MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: October 4, 2013 SUBJECT: AGENDA ITEM WS.2 - WORKSHOP MEETING OF OCTOBER 8, 2013 DISCUSSION REGARDING WAIVERS TO THE CODE OF ORDINANCES FOR SPECIAL EVENTS ITEM BEFORE COMMISSION Discussion regarding waivers for special events. BACKGROUND The City has a special event policy that sets forth the guidelines governing special event requests. When some special events are requested, certain waivers are requested along with the special event. Normally these waivers are presented to the Commission for approval along with the special event application. In most cases the waivers requested can be waived through the special event application process (such as the noise ordinance), however, there are occasions where the producer of the special event, which in some cases would be the City, would need to request a waiver where the process outlined in Section 30.15 of the Code of Ordinances must be followed. This process involves publication in a newspaper 10 days prior to the matter being heard by the Commission. The proposed ordinance would allow the City Manager to approve special events, pursuant to our policy, and the ability to approve the waivers, if any, associated with the event. The special event policy has also been modified to allow the City Manager or his/her designee to approve special events and grant waivers, provided they meet the requirements of the policy. In the case of a new special event request (which is an event that has not previously been held), the City Manager or his/her designee shall only be allowed to approve the new event at the minor or intermediate levels. These proposed changes were also reviewed with Assistant City Manager Bob Barcinski. RECOMMENDATION Request consideration of proposed process. ORDINANCE NO. -13 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 30, "CITY COMMISSION ", SECTION, "30.15, "WAIVERS OF CITY ORDINANCES ", TO CLARIFY THE PROCESS FOR THE GRANTING OF WAIVERS FOR SPECIAL EVENTS AND TO CLARIFY WHO PAYS FOR THE COST OF PUBLISHING THE NOTICE OF THE WAIVER REQUEST; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, special events are held in the City throughout the year for the benefit of its residents; and, WHEREAS, the City Commission has adopted a policy governing special events, which policy allows for the granting of waivers in conjunction with the special event. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 30, "City Commission ", Section 30.15, "Waivers of City Ordinances ", of the Code of Ordinances of the City of Delray Beach is hereby amended to read as follows: Sec. 30.15. - WAIVERS OF CITY ORDINANCES. (A) Unless a specific waiver or modification provision is provided for elsewhere in this Code, in all instances wherein the City Commission is requested to waive or otherwise modify the written provisions of this Code, the City shall provide by publication in a newspaper of general circulation in the City a notice (on a form to be provided by the City) of the proposal or request for the waiver or modification, setting forth the City's ordinance requirements and the proposed waiver or modification. This notification shall be published not less than ten (10) calendar days in advance of the City Commission's consideration of this waiver or modification. All costs associated with the publishing of the notice shall be paid b,T� person requesting the waiver. Nothing in this Section shall preclude the City Manager from making individual notifications as he deems appropriate. (B) At the time of City Commission's consideration of same, the City Commission shall conduct a public hearing on the request. Notwithstanding these requirements, in the instances wherein an applicant for a waiver or modification demonstrates to the satisfaction of the City Commission that same is an emergency not due to the fault or circumstances within the control of the applicant, the City Commission may deem it to be an emergency and need not abide by the requirements of the notification in advance or the public hearing requirements set forth herein. (C) The person making the waiver request shall submit a one hundred dollar ($100.00) processing fee for each waiver request. (D) AA person or enti , requesting a waiver of a City ordinance as part of a special event request shall not be required to go through the procedure set forth above in Section 30.15"A -(C). Waivers associated with special events may be requested through the special event application process and the City Commission or the Ci , Manager or his /her designee shall have the authority to review and approve the waivers as part of the special event permit application process. Section 2. 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 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 2013. ATTEST: City Clerk First Reading Second Reading MAYOR 2 ORD. NO. -13 CITY OF DELRAY BEACH SPECIAL EVENTS POLICIES & PROCEDURES REVISED -W' Definitions A) Special Event — A special event is a non - routine happening or social activity bringing people together in a defined area on City facilities, right of way, or private property which requires City services to ensure safety and coordination. Special events include activities such as festivals, concerts, sporting events, parades, walks and curls, etc. This definition does not apply to events held at the Tennis Center, which require a separate contract B) Producer — An organization that is responsible for all aspects of an event or performance (advertising, marketing, talent costs, insurance, hold harmless agreement, etc) and is responsible for all revenue and expenses for that event. C) S onsox — A business, organization, agency or individual who gives cash or in- kind product or service to support a producer of an event or production by agreement, for the benefit of that agency, business, organization or person. H. Types of Events A) Major Evert —An event of one or more day duration with a cost of over $12,000 for City services, staff overtime and equipment use. B) Intermediate Event —?in event of one or more day duration vith a cost of between $1,500 and $12,000 for City services, staff overtime, and equipment use. C) Minor Event —i1n event of one dx• or less duration, with a cost of under $1,500 for City services, staff overtime, and use of equipment. Ill. General Policies A) Event producers are required to obtain all City, State, County and Health Department permits, licenses and /or inspections as may be needed. B) Event producers are responsible for submitting in writing permission as may be required from other governmental agencies, private property owners, and designated managers of City property including Old School Square for use of their sites for an event. s( )1 \9eetwood$03ommloads \temp � Special Exert Policies and Procedu RI?VISED I�na110.I.12.doc C) Event producers are responsible for overall event planning and management, promotion, marketing, advertising, entertainment, and vendor selection. The m- mt producer is responsible for actions of their vendors. City assistance may be provided in promoting the event on its web site and other printed publications. D) Only three (3) major events will be allowed per month, including a major event held at the Tennis Center. E) A major and intermediate event will not be allowed on the same day. F) No more than two (2) intermediate events will be allowed within the same week. G) Only four (4) intermediate events will be allowed in a month where there is a major event and only five (5) will be allowed in a month without a major event. Iri) Multiday and /or single day events will only be allowed three (3) weekends (Saturday, and Sunday) in any given month City staff will assist in obtaining parking lot use agreements from the County and CRA as may be needed. Event producers or their contractors are required to submit required certificates of insurance, to include liquor liability when applicable, hold harmless agreements, and any required cash bonds or deposits to the City at least two (2) weeks before the event. New events will be required to make nonrefundable deposit in an amount as may be determined by City Commission at least three (3) weeks prior to the event K) All events except for minor events and 5K runs are required to attach to the event application a copy of the Arts and Economic Impact Calculator showing economic impact as obtained on line at www.AmedcansForThe Arts.ore. Minor events and neighborhood block parties will be approved or disapproved at the staff level; all other events will be approved by the City Commission. IV. Suecial Event Permit Submittal Requirements A) Submittal Time — Major Event — Initial requests including permit application and all back up material, must be submitted to the City Manager or his designee at least 120 days prior to the event, but not more than 12 months in advance. 2. Intermediate Event — Initial requests including permit application and all back up material must be submitted to the City Manager or his designee at least 90 days before the event, but not more than 12 months in advance. Page 2 of 8 3 Minor Event — Initial requests including permit application and all back up material must be submitted to the City Manager or his designee at least 45 days prior to the event, but not more than 12 months in advance. B) Submittal Requirements 1. All Events • City of Delray Beach Special Event Permit • Event budget to include revenues and expenses and previous year's actuals if not a new event • Site Plan • Economic Calculator if not a 5/10K Run or minor event • Certificate of Event Liability Insurance naming the City as a certificate holder and additional insured • Hold Harmless Agreement 2. The following additional items may be required based on the size and nature of the event; • Parking plan • Traffic plan • Private security plan • Alcohol control plan • Police security plan • Pyrotechnic permit submittals shall be submitted to the Fire - Rescue Department at least 30 days prior to the scheduled display. • Alcohol Liability Insurance • Maintenance /cleanup plan • Entertainment schedule • Load in and take down schedule • Public Health Department Inspection N1 III If the applicant seeks a waiver of any City ordinance or land development regmat ion, that request must be made in conjunction with the special event application. C) Event staff 1. Police — police or other trained non -sworn personnel may be required a. At the discretion of the Chief of Police or his /her designee based upon projected attendance numbers, type of event, traffic;'pedestdan concerns, geographic location and site layout. - Page 3 of 8 b. Mandatory police personnel are required for events where alcohol is served or sold by the event producer, event vendor, or other businesses within the event foot print Event producers may through agreement with the Police Department, substitute or add whenever possible private security for certified police officers. 2. Fire — mandator,, staffing may be required as determined by the Fire Chief or his /her designee in consultation with the City Manager or his designee normally when the total estimated crowd at anyone time in the venue area exceeds 2,500 people. However, staffing requirements must take into account venue risks, type of activity, and other safety considerations in addition to the size of the event If the Police /Fire Department determines that there is no undue risk to public safety, then Police /Fire staffing of the event is not necessary. 3. Parks Maintenance — Parks Maintenance staff will provide assistance when Requested for event site cleanup and trash collection and disposal. Event producers may substitute this function with volunteers and /or private contractor vith City approval. Parks Maintenance staff will also set up and take down City stages when requested 4. Public Works — Public Works staff working with the event producer will prepare and submit required FDOT permits for street closures, under the direction of a certified T=CD, will install barricades, message boards and arrow boards, as needed, will prepare event signage when requested and approved, will set up portable light towers and generators and will provide a City electrician when needed. V. Event Payment for City Services A) City Produced or Co-Produced Events; Public School Produced Events — There are no charges levied for any City services or rentals for City produced or co- produced events or for those events that are produced by a public school located in the City. B� Old School Square Inc. and Deh-ay Beach Markedn Cooperative — Events produced by Old School Square Inc or the Delray Beach Marketing Cooperative are required to pay 500/'0 of City staff overtime costs plus 100% of other costs as indicated in paragraph C. C� All other Events - All other event producers, whether a nonprofit or for a profit private producer, will be required to pay 100° 0 of all City staff overtime costs. The event producer is also required to pay 100% of land and /or equipment rental, signage, stage rentals, trash boxes and liners, and vehicle towing costs. Equipment rentals include but are not limited to barricades, message boards, arrow boards, tables, chairs, tents, light towers, portalets and portable generators. Page 4of8 In addition, event producers will be required to pay for any site damage caused by their event, pressure cleaning, and any other site cleanup necessary, plus any fines that may be levied. Payment to the City is due within sixty (60) days of receipt of the City invoice. Failure to pay within this time frame could be grounds for denial of future events. D) New Events — New events will be required to pay a deposit in an amount and time, prior to the event, as may be specified by City Commission. Administrative — All event producers are required to pay a 5% administrative fee of the total of City staff overtime costs. F� Events that include food preparation and service vendors shall at the discretion of the City: • Provide a container of adequate capacity designed for grease and oil collection containers, the contents of which shall be legally disposed of by a certified hauler. • Provide a dumpster of sufficient size and type for garbage and trash collection, contents of which shall be disposed of by a certified hauler. The above are the sole responsibility of the event producer. G) Permit Fees - Event processing permit fees will be charged as follows and are non - refundable: Minor event $ 55.00 Intermediate Event $150.00 Major Event $250.00 Permit fee due at time of application submittal. Above payment structure does not include charges that may be contracted for use of Old School Square, Tennis Center or City Park. Charges specified in contracts for these sites may be different from and /or in addition to the above schedule. VI. Parking A) Reserved Parking: Event producers may request use of City owned surface lots for reserved parking. Requests need to be in writing and /or on the site plan included in the event permit package. Paid Parking: The City, at its discretion will determine, based on event impact, whether or not it (City) will charge for parking in City owned parking garages, City owned surface lots and in the County Parking Garage. Revenue from said parking will be retained by the City to offset operating costs of parking lots. Page 5 of 8 Community Redevelopment Agency Parking Lots: Requests to use parking lots ou med by the Delray Beach Community Redevelopment Agency for reserved parking or paid parking are to be made in writing to Delray Beach Community Redevelopment Agency, 20 North Swinton Avenue, Delray Beach, FL 33444. D) Palm Beach CouM /South County Court House Parking Garage: By agreement with Palm Beach County, the City of Delray Beach, the Delray Beach Public Library or the Delray Beach Community Redevelopment Agency may request use of the South County Court House Parking Garage for paid or fire parking. The County requires both the approval of the City and Library for its use. The County requires that this lot be manned by a professional parking management company that is bonded or by the Cir if manned by a certified Police Officer. Any requests to utilize this garage must be made to the City and the LibrarT Palm Beach County does not allow the use of this garage during nomial courthouse operating hours and requires reservation of spaces after hours and weekends if their employees are working in the Courthouse. E) Delray Beach Public Library- Surface Lot: Requests for use of this lot need to made directly to the Delray Beach Public Library, 100 West Atlantic Avenue, Delray Beach, FL 33445, with a copy to the City. VII. Neighborhood Block Parties - Pemiit applications for neighborhood block parties will be reviewed by the City Manager or his designee. Consideration of approval will be based upon the following policies: A) Permit applications must be received in writing by the City Manager's Office at least 30 days prior to the event. B) Permit applications must be submitted by the Homeowners Association or where there is no Homeowners Association by other individuals with a petition signed by 51% of the homeowners who live on the block. C) Approvals will only be given for a one (1) block area. D) Consumption or sale of alcohol on City rights -of -way will not be permitted. E) Structures other than barricades are not allowed in the City rights -of -way. F) Homeowners Association wM be required to pay all overtime costs that may be incurred. G) Impacts due to other events will be considered in approval process. H) Applications will not be approved for any activity past 10 p.m. Page 6 of 8 Approvals will not be given for individual homeowner sponsored parties or events. VIII. Grounds for Denial of Permit - Permit applications shall be reviewed by the City Manager or his /her designee within thirty (30) days of submission of the permit application. Permits may be denied for any of the following reasons: A) The application for permit (including any required attachments and submissions) is not fully completed and executed; B) The applicant has not complied with Event Policies and Procedures; C) Submittal of permit application less than the minimum submittal day requirements per section IV (A); D) The applicant has not tendered the required application fee with the application or has not tendered the required user fee, indemnification agreement, insurance certificate, or security deposit within the times prescribed by the As4af City Manager or his /her designee; E) The applicant has not tendered the required fee, or a portion thereof; for prior year's events; F) The application for permit contains a material falsehood or misrepresentation; G) The applicant is legally incompetent to contract or to sue and be sued; I� The applicant or person on whose behalf the application for permit was made has on prior occasions damaged municipal property within the City of Delray Beach and has not paid in full for such damage, or has other outstanding and unpaid debts to the City of Delray Beach; 1) A fully executed prior application for permit for the same time and place has been received, and a permit has been or will be granted to a prior applicant authorizing uses or activities which do not reasonably permit multiple occupancy of the particular municipal property or part hereof; J) The use or activity intended by the applicant would conflict with previously planned programs organized and conducted by the City of Delray Beach and previously scheduled for the same time and place; K) The proposed use or activity intended by the applicant would present an unreasonable danger to the health or safety of the applicant, or other users of the park, of City Employees or of the public; Page 7 of 8 L) The applicant has not complied or cannot comply with applicable licensure requirements, ordinances or regulations of the City conceming the sale or offering of any goods or services; XV The use or activity intended by the applicant is prohibited by law, by the City's Code of Ordinances or by these regulations. N) —The applicant's staffing /parking needs cannot be met by the City. Formatted: Font: Not Bold A. Anneal Process — Special Event Permit or waiver denials may be appealed in writing to the City Commission within fifteen (15) days of the denial. The City Commission must render a written decision within ten (10) days after the Ciri Commission meeting at which the appeal was considered. If the City Commission upholds the pemit denial for an event, regardless of classification, then the applicant may appeal the City Commission s decision to the Circuit Court of Palm Beach County within thirty (30) days. Page 8 of 8 MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: October 3, 2013 SUBJECT: AGENDA ITEM WS.3 - WORKSHOP MEETING OF OCTOBER 8, 2013 DISCUSSION OF COMMISSION VOTES ITEM BEFORE COMMISSION Discussion regarding Commission voting, where there is a 2 -2 vote. BACKGROUND At the October 1, 2013 Commission meeting, the Commission requested that this item be discussed at a workshop meeting. The basis for the interpretation of our Charter regarding the 2 -2 vote arises from a circuit court decision that was handed down in 2004. That case dealt with a request by the McKinneys for a Certificate of Appropriateness for the tree house in front of their Historic Home located at 610 N. Ocean Blvd. The Historic Preservation Board denied the request. The McKinneys appealed the decision to the City Commission. The City Commission vote was 2 -2 (one (1) Commissioner was absent). The McKinneys then appealed by Writ of Certiorari to the Appellate Division of the Circuit Court, which found that the City did not follow its own Charter, Section 3.12 (C), which required "the affirmative vote of three (3) commissioners to take an action ". We argued that by not having three (3) votes in the affirmative, the vote failed (i.e. was denied). The Court disagreed and stated that based on Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988), the provisions of Robert's Rules of Order would only apply in the absence of a formal rule. (See attached ruling from the Court as well as the McKinneys' reply to our response and then our Motion for Rehearing, which was denied) The Court ruled the City's Charter provided a formal rule, which had to be followed. Absent three (3) affirmative votes, there was no vote according to the Court's interpretation of our Charter provision (as it existed at that time). The Court then remanded the action to the City Commission. Ultimately we settled this case and the McKinneys moved the tree house from the front of their house to the side of their property. After this case, all of our Boards as well as the Commission were instructed that they needed at least three (3) votes and that all motions needed to be phrased in the affirmative, based on the Court's ruling in order to avoid an issue which could result in a no action vote. In 2012, the Commission appointed a Charter Review Committee to review the City's Charter and make recommendations on modifications of the Charter. One such recommendation was to Section 3.12(C) of the Charter (see attached ordinance 01 -13). The words "roll call" were stricken and language was inserted to provide that the voting procedure would be the procedure as set forth in the rules of the Commission. This change was made to allow the Commission to vote on motions by other than just a roll call vote. Also, the word "affirmative" was changed to "concurring" to allow the Commission and our boards the flexibility to make motions in the affirmative or negative. If the Commission wishes to change the voting procedure to more closely follow Robert's Rules of Order, then the Charter would need to be changed to remove the three concurring vote requirement for motions. FRANK MCKINNEY, an individual and NILSA MCKINNEY, an individual, Petitioners, V. THE CITY OF DELRAY BEACH, FLORIDA, a political subdivision of the State of Florida, Respondent. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Lower Court No.:2002- 164 -COA- HPB CASE NO. AP 03 01062AY APPELLATE DIVISION PETITIONERS' REPLY TO THE CITY OF DELRAY BEACH'S RESPONSE TO PETITIONER'S WRIT OF CERTIORARI The Petitioners, FRANK MCKINNEY and NILSA MCKINNEY (hereinafter, the "Petitioners ") file this Reply to the CITY OF DELRAY BEACH, FLORIDA's ( "City ") Response, and requests that this Honorable Court issue a Writ quashing the RECEIVED 1 MA Y 0 12003 CITY ATTORNEY Order of the City denying the Petitioners' request that the City Commission ( "Commission ") approve their Certificate of Appropriateness ( "COA ") for a treehouse on their property. I. FAILURE TO PROVIDE DUE PROCESS OF LAW A. Failure to Follow Charter Provisions The City argues that it may adopt a rule of procedure that directly conflicts with the City Charter. Page 25, City's Response. In the instant matter, the City Charter requires that "No action ... shall be valid and binding unless adopted by the affirmative vote of three (3) commissioners." Section 3.12, Appendix 12. Insomuch that the City now argues that a rule of procedure may conflict with Section 3.12 of the City Charter, the City argument is not supported by Florida law. A municipal government's Charter is its organic law. § 166.021, Fla. Stat. (2002). The City's Charter was just amended by referendum on or about March 12, 2002, at which time the citizens of the City voted to require that every single action of the City be taken with a three (3) commissioner vote. The voters did not approve a majority vote or a rule for tie voting, the voters required three (3) votes. Appendix 12 at page 1 and 14. Under Florida law, the-City's Charter defines its powers and duties. § 166.01 et seq., Fla. Stat. (2002); Abell-v. Town of Boynton, 95 Fla. 984 (Fla. 1928). If there N is any doubt about the validity of an action under the City Charter, Florida law requires that it be resolved against the City. Williams v. Town ofDunnellon, 125 Fla. 114 (1936). In the instant matter, the voters specifically set forth a voting requirement setting forth the number of votes necessary to make any action valid. Any rule that materially alters the number of votes is invalid. Only the voters can change the number of votes necessary to make an action necessary when such an action materially alters charter provisions. Fuller v. Gardner, 138 Fla. 837 (Fla. 1939). The City's reliance upon Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5th DCA 1988), caus. dismiss., 537 So. 2d 568, is misplaced. The Fifth District Court of Appeal found in Battaglia that rules of procedural may only be used in the absence of a formal procedure. See also, City of Naples v. Central Plaza of Naples, Inc., 303 So. 2d 423 (Fla. 2d DCA 1974)(the court specifically footnoted that the petitioner was not challenging a ruling by the Mayor of Naples, based upon advice from the City Attorney, that a request for a special exception failed due to a tie vote). The Court's footnote in the Central Plaza case indicates that the Court took notice of the decision on the tie vote, but would not address its propriety since the petitioner did not request them to do so, as we have done in the instant matter. The City has a formal procedure predicated upon a five (5) person commission sitting as its local governing body. Its Charter prohibits any action occurring solely 3 on the vote of two (2) commissioners, but requires that three (3) commissioners support the action, any action. In the instant matter, the City needed three votes either in favor or opposed. Such is the Charter's mandate. In the instant matter, the tie votes cast during each of the hearings were not effective to constitute any action. The Order should be quashed for this reason alone. The City raised a waiver issue as to procedural defects which has no application in the instant proceeding. The vote that occurred in the instant matter occurred after the public hearing was closed and after the Petitioners could object. Indeed, there was no opportunity or occasion afforded the Petitioners during the vote to object. Appendix 11 at Pages 57 and 58. The cases cited by the City are not disposive on this issue. The decisions in those cases, Schumacher v. Town ofJupiter, 643 So. 2d 8 (Fla. 4th DCA 1994), review denied, 654 So. 2d 919 (Fla. 1995), Malley v. Clay County Zoning Comm'n, 225 So. 2d 555 (Fla. 1 st DCA 1969) and Forehand v. School Board of Gulf County, 600 So. 2d 1187 (Fla. 1st DCA 1992), involved noticing issues that occurred prior to the hearings at issue in the cases. In those cases, the petitioners failed to raise at the hearing objections to noticing problems. In the instant case, the procedural defect occurred after the public hearing concluded. Accordingly, those cases are not relevant or controlling to the matter at bar.' 'If the defects in voting procedure are not properly brought by a Petition for Certiorari, then they will be brought in a civil complaint. As the vote is on the 4 B Failure to Consider Criteria in the Code The City solely defends the Commissioners actions by a brief argument that City Commission must have based its decision on the criteria in the Code because the criteria and some evidence were "entered into the record." Response, Page 35. Two (2) City Commissioners were devoid of any dialogue on the dias that evening that could rescue the due process debacle that unfolded. Its counsel were powerless to defend it and glossed over these fatal error. As a general rule, whether the City knew the criteria or not is immaterial. The only material issue in this appeal is whether the City Commission's decision was based upon the criteria. If the City Commission's decision was based upon public opposition, a lack of "compromise" with the community, a feeling of "disrespect" or setting a bad example, it must be quashed. BML Investments v. City of Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985) (decision quashed as it was based on unpopularity and concerns of future code violations what are not a sound basis for denying a permit to build); Conetta v. City of Sarasota, 400 So. 2d 1051 (Fla. 2d DCA 1981)(decision quashed as it was based upon community objection). As Corpus Juris Secundum states regarding similar zoning applications, the "grounds" upon which the decisions must be made are the "specified in the ordinance." IOTA C.J.S. Zoning & record below, the Petitioners maintain that it may be brought in a Petition for Certiorari. 5 Land Planning §239. This Court should read the transcript of these Commissioners' comments to determine if their decision was arbitrary and based upon impermissible criteria and issues. Bell v. City of Sarasota, 371 So. 2d 525 (Fla. 2d DCA 1979)(court looked to transcript of the hearing to determine whether the board based its decision on the criteria). Besides an interesting look into the ` treehouse' issue, the transcript discloses a classic example of a zoning decision being made for all but the reasons allowed. In the instant matter, the two (2) City Commissioners made it clear for the record as set forth below that their decision had nothing to do with the criteria, but was solely a result of the Petitioner's failure to seek a COA in advance of construction. Such conduct is not sustainable. The City Commission was clothed by the City's Code and Florida law with the obligation to review the Petitioners' application under the City's Certificate of Appropriateness guidelines in its Code. Rather than reviewing the evidence regarding compatibility between the treehouse and the Residence, Commissioners Perlman and Levinson embarked on a discourse of "compromise" and the impropriety of the Petitioners' building the treehouse prior to obtaining a COA. Commissioner Perlman contemplated several issues in his review, none of which focused on whether the Application met the standards for a COA. �11 Commissioner Perlman focused on whether they needed to uphold the Board's decision out of "respect," whether it should be denied because it was built without permits, and whether it should be denied because no compromise was reached. "I have a problem with rules not being followed." Id. at page 46. Commissioner Perlman wanted the Petitioners to -follow the precedent of "working it out with the neighborhood." Id. at page 47. "But, again, we're here because the rules weren't followed." Id. "[W] hat kind of precedent is there when things are done without a COAT" Id. at page 51, emphasis added. In fact, Commissioner Perlman found the treehouse to be an "admittedly beautiful structure." Id., emphasis added "I am concerned about a message that, with an apology ... and some fines, that all is well. I don't know if that is the message that we want to send." Id. Commissioner Perlman moved for the Commission to remand the Application in order to ask the staff and the Board what their "opinion" was about applicants that "disrespect" the rules regarding COA's and the "impact" of such disrespect on "future improvements to historic properties," as well as to reconsider compromises. Id. at page 53. Commissioner Perlman never discussed that the treehouse failed to meet the criteria in the code. Commission Levinson spoke in favor of the Board making a "compromise" with the Petitioners for the treehouse to remain in its existing location. Id. at Page 49 to 50. Ultimately, Commissioner Levinson stated that he would apply the "death Vi penalty" since the Petitioners could not work out an "acceptable compromise" with the Board. Id. at Page 57. Commissioner Levinson never discussed, nor found, that Petitioners failed to meet the criteria in the code. Instead, Mayor Schmidt found the structure to be "compatible." Id. at page 43. Further, Mayor Schmidt found that "it doesn't appear to be outscaled or massed with the house." Id. Likewise, Commissioner McCarthy found that the treehouse did not "distract" from the Residence and that the guidelines did not provide guidance regarding the size. Id. at Page 48. Commissioner McCarthy spoke "in favor" of the treehouse. Id. The COA guidelines set forth in the Code are generally considered to be sufficiently precise to meet the requirements of due process. See, e.g., Estate of Tippett v. City of Miami, 645 So. 2d 533 (Fla. 3d DCA 1994). Even the "compatibility" standard in the COA guidelines has been deemed by a Florida court to be sufficiently precise to prohibit unbridled discretion by the Commission. Life Concepts, Inc. v. Harden, 562 So. 2d 726 (Fla. 5th DCA 1990). However, Commissioner Perlman voted to deny the Application based upon the "lots of emotions with this issue." Appendix 11 at page 45. Further, Commissioner Perlman identified issues to use as criteria in his analysis of the Application, -none of which were the guidelines set forth in Code. Instead, Commissioner Perlman was primarily driven by the concern that approving a structure built without building permits would send the wrong message. Id. at page 51. The issues of permitting are squarely within the jurisdiction of the building code. See generally, Florida Building Code. The building code sets the fines and penalties for after - the -fact permits. In fact, there is not provision in the Code for the Commission to consider such factors. Apparently, Commissioners Perlman and Levinson wanted the Petitioners to "work it out" with all the detractors who have no special interest in the Application. ABC Liquors v. Skaggs- Albertson's, 349 So. 2d 657 (Fla. 4th DCA 1977). Such requirements violate the Petitioners' due process rights as those considerations are not criteria under the Code. Accordingly, the Order of the City must be quashed and Commissioners Perlman and Levinson ordered to consider this matter in light of the COA guidelines. CONCLUSION AND RELIEF SOUGHT The Order entered by the City denying the Petitioners' request for a COA violated the Petitioners' due process rights as it resulted from an invalid vote. Further, they applied the incorrect law and failed to follow the applicable substantial, competent evidence. The Commissioners voting against the treehouse responded to an outcry about the fact that the treehouse was constructed with permits. However, 9 that fact was not a part of the review criteria and should not have been considered. As it is growing more common in these matters in the City, the City is participating in significant and questionable ex -parte communications from local residents. Mindful of the powers of the masses, the City forgot its charge and applied incorrect criteria to an emotional matter and entered, an Order not permitted by its Charter. The City's Order should be quashed and the City ordered to grant the Petitioners' request or be order to consider this matter in light of the applicable law. WHEREFORE, based upon the foregoing, the Petitioners respectfully request that this Honorable Court issue a Writ quashing the Order entered by the City of Delray Beach, Florida on December 30, 2002. Respectfully submitted, Rebecca L. Henderson, Esquire ELK, BANKIER & CHRIS TU 1LP Counsel for Petitioner 4800 North Federal Highway Sanctuary Centre, Suite 200 -E Boca Raton, Florida 33431 Office: 561- 368 -8800 Facsimile: 561-394-3699 Rebecca L. Henderson, Esq. Fla. Bar No. 0004642 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by certified U.S. Mail to the following: Susan Ruby, City Attorney City of Delray Beach, Florida 200 NW 1 st Avenue Delray Beach, Florida 33444 this 25 day of April, 2003 Rebecca L. Henderson, Esq. CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing compliance with the font requirements of Rule 9.100 of the Florida Rules of 1 Pr ce ure. J � ecca L. Henderson, Esq. 11 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA FRANK MCKINNEY and APPELLATE DIVISION (CIVIL) NILSA MCKINNEY, CASE NO.: 502003AP001062YXCTAY Petitioners, o V. CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, �} Respondent. Opinion filed: AM 12 2004 Petition for Writ of Certiorari from the City Commission of the City of Delray Beach, Florida, For Petitioner, Rebecca L. Henderson, Esq., Boca Raton, FL. For Respondent, R. Brian Shutt, Esq., Delray Beach, FL. For Respondent, Susan A. Ruby, Esq., Delray Beach, FL. PER CURIAM Petitioners, Frank and Nilsa McKinney, filed a Petition for Writ of Certiorari to this Court challenging the decision of the City Commission of the City of Delray Beach, Florida, Respondent. Petitioners argue that Respondent failed to follow its own provision in the City of Delray Beach's Charter while Respondent argues that its process complied with Robert's Rules of Order, which is the minimum procedure that it must follow. The provision in question is Section 3. 12(c) of the City Charter, which requires an affinnative vote of three commissioners to take an action. Respondent cites Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5th DCA 1988), in support of its argument, but Battaglia can be distinguished from the instant RECEIVED JA `' .5j2-004- CITY ATTORNEY matter because that court held that the provisions of Robert's Rules of Order would only apply in the "absence of a formal rule." See id. at 942. The City's Charter operates as a formal rule in this matter. This Court disapproves of Respondent's argument that three votes were needed to approve the appeal, as opposed to denYing the appeal. There are consequences to decisions rendered by local city commissions, however the question or process is framed. The instant matter is no different. The City's Commission's rejection of the appeal from the City's Historic Preserx,ation Board operates as an action that created a consequence for Petitioners. Based upon the above, the Petition for Writ of Certiorari is GRANTED and the final decision of the Respondent's City Commission is QUASHED and the matter is REMANDED to the Respondent's City Commission to act in conformance with this opinion. WROBLE, MILLER, and BRUNSON, JJ., concur. S(Jer15 ZOO v /�peA rGwj�L w . 1, r+,4 vE �.�,.y lfe wN, ZL 33yyy IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA APPELLATE DIVISION (CIVIL) FRANK MCKINNEY, et al., CASE NO. 50 2003 AP001062 XXCTAY Petitioners, VS. THE CITY OF DELRAY BEACH, Respondent. CITY OF DELRAY BEACH'S MOTION FOR REHEARING AND CLARIFICATION The Respondent, the City of Delray Beach ( "City "), pursuant to Florida Rule of Appellate Procedure 9.330(a), files this Motion for Rehearing and Clarification of the Court's January 12, 2004 Order Granting Petitioner's Writ of Certiorari. (The Court's Order is appended hereto as Appendix 1). HISTORY OF CASE The Petitioners applied to the City's Historic Preservation Board ("HPB" ) for a Certificate of Appropriateness ( "COA ") for a free - standing accessory structure (referred to by Petitioners as a "tree house ") in front of the historic Fontaine Fox house located at 610 N. Ocean Blvd. in Delray Beach, Florida ( "Application "). The HPB denied Petitioners' application. Thereafter, the Petitioners appealed the HPB's decision to the City Commission ("Commission ") which considered the appeal and voted on two (2) separate occasions, both of which resulted in a tie vote; two votes in favor and two votes against. FACTS IN SUPPORT OF MOTION FOR REHEARING AND CLARIFICATION 1. City Commission Meeting of November 19, 2002.. The Petitioners appealed the BPB's decision to the City Commission. The appeal was heard in the form of a quasi-judicial hearing at the Commission's regularly scheduled meeting on November 19, 2002. Commissioner Perlman moved to deny the appeal (App. 2 at 57) and this motion was seconded by Commissioner Levinson. The result of the vote was a tie with two (2) commissioners (Jeff Perlman and Jon Levinson) voting yes and two (2) commissioners (Alberta McCarthy and David Schmidt) voting no.' After the Commission voted, Mayor David Schmidt stated "the appeal fails based on a tie vote ". (App. 2 at 57 -58). 2. City Commission Meeting of December 3, 2002. On December 3, 2002, the City Commission discussed Petitioners' case once again in order to clarify the motion that was made at the November 19, 2002 City Commission meeting because the prior vote was phrased in the negative, i.e. to deny the appeal. ' Commissioner Pat Archer was absent from this meeting and therefore, did not vote. 2 In order to clarify the record, the City Commission voted to rescind the previous motion made on November 19, 2002 and make a new motion in the positive, i.e. to approve the appeal. (See, Transcript, App. 3 at 4). Commissioner Alberta McCarthy made the motion to approve the Petitioners' appeal with Commissioner Jeff Perlman seconding the motion. The motion was then put to a vote with Commissioners Perlman and Levinson voting against the appeal and Commissioner McCarthy and Mayor Schmidt voting in favor of it Thereafter, Mayor Schmidt stated, "the motion to approve the appeal fails because it did not have the requisite three (3) affirmative votes." (App. 3 at 7): Thereafter, Petitioners filed their Writ of Certiorari requesting the court to review the Commission's decision. LAW IN SUPPORT OF MOTION FOR" REHEARING AND CLARIFICATION I. The Court's January 12, 2004 Order On January 12, 2004, the Fifteenth Judicial Circuit filed an opinion on Petitioners' Writ of Certiorari Granting the Writ and Quashing the City Commission's decision in the instant case and Remanding it to the City Commission to act "in conformance with this opinion." (App. 1) In the opinion filed by the court, it states that, "This court disapproves of Respondent's argument that three votes were needed to approve the appeal as opposed to denying the appeal." (App. 1). 3 A. The City's Charter; adopt is not the same as deny. The City is governed by the powers set forth in its Charter (§ 166.021, Fla. Stat. (2003). The City's Charter, as revised, was adopted by referendum on March 12, 2002 (App. 4). Section 3.12(c), "Voting ", sets forth in specificity, the voting requirements for votes on ordinances, resolutions, and motions. (App. 4 at 14). The court points out that "Petitioners argue that Respondent failed to follow its own provision in the City of Delray Beach Charter." However, the City respectfully asserts that the Court failed to read the specific language in the City Charter. The Court incorrectly stated that the provision in question, Section 3.12(c) of the City Charter, requires an affirmative vote of three (3) commissioners to take an action. The Court did not correctly cite the words of the City Charter of the City of Delray Beach. The City's Charter, in Section 3.12(c), provides instead that No action of the commission, except as otherwise provided in the preceding sentence or Section 3.07 and 3.08 of this Charter, shall be valid and binding unless adopted by the affirmative vote of three (3) Commissioners. (emphasis added). (App. 4 at 14). This provision is taken from the Model City Charter, which is followed by many other cities throughout the country and is produced by the National Civil League.2 The City's Charter does not state that "an affirmative vote. of three Z NATIONAL CIVIL LEAGUE PRESS, Model City Charter, 11 (1996) 4 commissioners is required to take an action." (App. 1). It states that for an action to be valid it must be adopted by three(3) affirmative votes. When interpreting a statute (ordinance) and attempting to discern legislative intent, courts must first look at the actual language used in the statute.' In the instant case, the words adopt and deny have very different meanings. They are almost the complete opRosite of each other. Looking at the plain meaning of the words, adopt means "to take up formally and put into effect. "4 Synonyms for adopt are "embrace, espouse, take on, take up ". Antonyms for adopt are "discard; repudiate; reject; spurn; abjure; forswear; renounce.s5 Black's Law Dictionary defines adopt as "to accept; appropriate; choose, or select. "6 Denial, by contrast, means "refusal to satisfy a request or desire." Deny means "to refuse to grant." 7 Antonyms for deny are "grant; admission".' Further, the Random House Dictionary of the English Language, defines adopt as "to vote to accept ",9 and deny is defined as "to refuse to agree or,accede to". 10 3 State v lacovone, 660 So.2d 1371 (Fla. 1984). 4 Mirriam- Webster, Inc., Mirriam- Webster Online (visited January 20, 2004) <http://www.m-w.conVcgi- bin/dictionary> 5 Mirriam- Webster, Inc., Mirriam- Webster online (visited January 20, 2004) <httpJ/www.m-w.com/cgi- bin/thesaurus ?book = Thesaurus & va = adopt> 6 BLACK'S LAW DICTIONARY, 45 (5th ed. 1979) BLACK'S LAW DICTIONARY, 392 (5th ed. 1979) $ See, Mirriam Webster, id. 9 RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED VERSION, 27 (2d ed. 1987) 10 RANDOM HOUSE, id. at 533 �J A general principle of statutory construction is that "the mention of one thing implies the exclusion of another; expression unius est exclusion alterius. "11 Hence, where a statute enumerates the things on which it is to operate or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. 12 In the City's Charter, Section 3.12(c), there is no provision regarding denying a motion, therefore it should be clear that the City intended only that there be a requirement of three (3) affirmative votes to adopt a motion and a fiori, less than three (3) votes in the affirmative would result in the motion not being adopted, i.e. a denial of the motion. (App. 4 at 14). B. The City has adopted Parliamentary Rules of Procedure as part of its organic law. The City Charter, in Section 3.12(b), "Rules ", sets forth, "the Commission shall determine its own rules and order of business." (App. 4 at 14). As a result of Section 3.12(b) of the City's Charter, which allows the City Commission to enact and adopt certain local rules of procedure, it is necessary to look at those rules in order to determine what other guidelines may regulate the Commission's actions. According to the Rules of Procedure for the Delray Beach City Commission, adopted on March 28, 2002, as revised, the City Commission is responsible for following "Robert's Rules of Order" in terms of parliamentary procedures, except " Peeples v State, 46 Fla. 101, 35 So. 223 (Fla. 1903); Devin v. Hollywood, 351 So.2d 1022 (Fla. 4th DCA 1976). 12 Thayer v. State, 335 So.2d 815 (Fla. 1976). L as otherwise modified by the City Commission or as modified within the Local Rules. (App. 5). Therefore, pursuant to Robert's Rules of Order, a tie vote on a motion is lost.13 In Battraglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988), the Court stated that the Orange County Code does not contain a provision that a tie vote constitutes a final decision in a zoning matter. The Circuit Court then stated that in the absence of a formal rule, a deliberative body must follow generally accepted rules of parliamentary procedure." See, id at 942. However, the Fifth District Court of Appeals stated, "We do not agree with the circuit court. Parliamentary rules not adopted as a part of a governmental body oreanic law may be waived or disregarded and courts will not enforce their observance." Id. at 942. In the instant matter, the City's Charter, similar to the County's code in Battraglia, does not contain an express provision regarding tie votes, however, it does require adoption by three (3) affirmative votes. The City Charter does state that the City is to determine its own rules and order of business. (App. 4 at 14). Therefore, by the Charter specifying that the City may adopt rules and the City's adopted providing that the City Commission of the City of Delray Beach, "must follow the generally accepted rules of parliamentary procedure" as well as the Charter as there is no conflict between them. Id. at 942. JOVE PUBLICATIONS, INC., Robert's Rules of order, 73 (1986) 7 Taking Battraglia one step further to the point where the Fifth District Court of Appeals explains that it does not agree with the Circuit Court's findings, stating, "Parliamentary procedures not adopted as part of a governmental body's organic law may be waived or disregarded." Id. at 942. The City respectfully argues and reasserts that Battraglia can be distinguished from the instant case because the City of Delray Beach has adopted parliamentary rules as is provided for in Section 3.12(b) of the City's Charter. Further, the City Commission followed the Rules of Procedure that were adopted by the Delray Beach City Commission on March 28, 2002 when they voted on November 19 and December 3, 2002. Therefore, based on the foregoing, Battraglia is distinguishable from the instant case because the City, unlike the County in Battraglia, has adopted parliamentary rules as part of its organic law and as a result, it appears that the court has misapprehended the law. (App. 1). Furthermore, the City's Charter is clear that it takes three (3) votes to adopt an action. C. CONCLUSION The City's Charter requires three (3) affirmative votes to adopt a motion. Robert's Rules of Order was adopted by the City Commission as part of its organic law. The City respectfully requests a rehearing on the basis that the court misapprehended and/or overlooked the law and failed to give meaning to the words in the City's Charter as it applies to the facts of this case. 0 Further, this Court, in its Order, granted the Petitioner's Writ of Certiorari and Quashed the decision of the City Commission and Remanded it to the, Respondent's City Commission. to "act in conformance with this opinion." (App. 1). This Court did not render any decision based on the merits in this case to be reviewed by the City Commission. The City has newly elected commissioners sitting on its commission that did not hear the evidence presented previously and thus, the City is unclear how the Court would direct the City to proceed. The City is unsure whether the court intends that the City must hold another quasi-judicial hearing before the City Commission or if it is supposed to simply vote again on the matter. Also, the City believes that if they follow the language in the City Charter and they proceed with voting and another tie vote occurs, the appeal must also fail. If there is not three (3) affirmative votes to adopt the appeal, then the appeal is denied. See, Committee for a Ricked Alternative v. City of Linden, (1988) 11 N.J. 192, 196 -203, 543 A.2d 943, 945 -949 (holding that where the affirmative vote of majority of city council was required to reverse, remand, or affirm decision of board of adjustment, and council heard matter de novo with burden of proof on applicant, tie vote resulted in denial of use of variance). The non - complying accessory structure ( "ttreehouse ") has remained in place for over three (3) years since the beginning of this appeal. The City does not want to unnecessarily postpone or delay the outcome of this case due to a misunderstanding of the Court's Order. Therefore, the City respectfully requests 9 this Court to grant the rehearing and clarify its opinion of January 12, 2004 in order that the City may correctly proceed with the case in a timely manner. WHEREFORE, the City of Delray Beach respectfully -requests that this Honorabe Court grant the City's Motion for Rehearing as well as clarify its Order so that the City Commission of the City of Delray Beach will be able to make an informed decision as to how to correctly proceed forward with this case. Respectfully submitted this Lbfay of January, 2004. OFFICE OF THE CITY ATTORNEY CITY OF DELRAY BEACH, FLORIDA 200 NW 1 � Avenue Delray Beach, FL 33444 (561) 243 -7090 . By: 3 On Terrill C. Pyburn, Nquire Assistant City Attorney Florida Bar No.: 524646 Susan A. Ruby, Esquire City Attorney Florida Bar No.: 0613940 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished to: Rebecca L. Henderson, Esq., 4800 N. Federal Hwy, Sanctuary Centre, Suite 200 -E, Boca Raton, FL 33431 by first class U.S. mail this aeday of January, 2004. Terrill C. Pyburn, ksq&e 10 CERTIFICATE OF COMPLIANCE This computer - generated motion is submitted in Times New Roman 14- point font and complies with the Florida Rules of Appellate Procedure. Terrill C. Pyburn, ' e 11 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA FRANK and NILSA MCKINNEY, Petitioners, V. CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, Respondent. BY ORDER OF THE COURT: APPELLATE DIVISION (CIVIL) I& CASE NO. 502003AP001062XXCTAY THIS CAUSE came before the Court upon Respondent's Motion for Rehearing. The Court having reviewed the motion, the response, and being fully advised of the matter, it is ORDERED and ADJUDGED that Respondent's Motion for Rehearing is DENIED. DONE: APR 19 2004 cc: R. Brian Shutt, Esq., 200 NW 1 st Avenue, Delray Beach, FL 33444 Terill C. Pyburn, Esq., 200 NW 1 st Avenue, Delray Beach, FL 33444 Eric C. Christu, Esq., 4800 N. Federal Highway, Suite 20(1 -E, Boca Raton, FL 33431 Devon G. Coughlin, Esq., 4800 N. Federal Highway, Suite'-700-E, Boca Raton, FL 33431 RECEIVED APP 2 a 2004 -,I ) 4 CITYATTCRNEY ORDINANCE NO. 0143 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR CHARTER REVISIONS BY AMENDING SECTION 3.12, "PROCEDURE"; TO' PROVIDE THAT THE REQUIREMENT FOR A ROLL CALL VOTE BE REMOVED FROM THE CHARTER AND THAT THE VOTING PROCEDURE SHALL BE SET FORTH IN THE RULES OF THE COMMISSION AND THAT TIC VOTES NEED NOT BE IN THE AFFIRMATIVE BUT THERE STILL MUST BE THREE CONCURRING VOTES ON AN ITEl- PROVIDING FOR A REFERENDUM ON MARCH 12, 2013, PROVIDING A GENERAL REPEALER CLAUSE; PROVIDING A SAVING CLAUSE, PROVIDING AN EFFECTIVE DATE. WHEREAS, the governing body of a -municipality may by ordinance submit a proposed amendment to the Chatter to the electors of the municipality; and WHEREAS, currently the Charter requires that all votes be by roll call and upon the affirmative vote of three Commissioners. WHEREAS, the City Commission deems it advisable to amend the Charter to allow the Rules of Procedure as adopted by the Commission to set forth the voting procedure for the City Commission and to provide that the votes ate not required to be made in the afftr ative bnt there still must be three concurring votes. NOW TTaRREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Ser-tion 1. That Section 3.12, "Procedure ", of the Charter of the City of Delray Beach shall be amended to read as follows: Section 3.U. PROCEDURE. (A) Mee fts. The Commission shall meet regularly at least twice a month at times and places that the Commission prescribes by tale or otherwise. Special meetings may be held on the call of the Mayor or of a majority of the Commission. Whenever practicable, there shall be at least twelve (12) hours notice of a special meeting to individual members of the Commission and to the public. ORD. NO. 01 -13 (B) Rules The Commission shall determine its own rules and order of business. (C) T, aifxZ. Voting on ordinances, resolutions, and motions shall be as set forth in the rules of the Commission by ftA eng and shall be recorded in the minutes, three (3) members of the Commission shall constitute a quorum, but a smaller number may adjourn from time to time and may compel the attendance of absent members in the manner and subject to the penalties prescribed by the rules of the Commission. No action of the Commission, except as otherwise provided in the preceding sentence or in Sections 3.07 and 3.08 of this Chatter, shall be valid and binding unless adopted by the -` ve concurtin vote of three (3) Commissioners. Section 2 The Charter amendment proposed by this ordinance shall be submitted to the electors of the City of Delray Beach at the regular election of Match 12, 2013 and shall be deemed adopted upon the favorable vote of a majority of the City electors voting at that rime upon the following question: QUESTION NO. CHAR'I'ER AMENDMENT VOTING PROCEDURE CHANGE CURRENTLY THE CHARTER PROVIDES THAT VOTES BY THE COMMISSION SHALL BE BY ROLL CALL AND MUST BE MADE IN THE AFFIRMATIVE. THE CHARTER AMENDMENT PROPOSES TO ALLOW THE RULES ADOPTED BY THE COMMISSION TO SET FORTH THE VOTING PROCEDURAL REQUIREMENTS AND REMOVES THE PROCEDURAL REQUIREMENT THAT VOTES MUST BE MADE IN THE AFFIRMATIVE, BUT THERE STILL MUST BE TEREE CONCURRING VOTES ON ANY ACTION. SHALL THE CHARTER AMENDMENT BE ADOPTED? YES (FOR APPROVAL) NO .(AGAINST APPROVAL) Section 3. That upon the approval of this ordinance by the electors as set forth above, all ordinances or parts or ordinances or Charter provisions or parts of Chatter provisions in conflict herewith shall be and the same are hereby repealed as of the effective date of this Ordinance. Section 4. That any clause, section or other part of this ordinance shall be declared invalid or unconstitutional by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby but shall retrain in full force and effect. Section That this ordinance shall become effective upon its passage on sf.cond and final reading and in accordance with Section 2 above. ORD. NO. 01 -13 UP P AND ADOPTED in regular scssion on second and final reading on this day of 2013. •MM ATTEST: A\ City Clerk First Reading Second Readin 13 ORD. NO. 01 -13 MEMORANDUM TO: Mayor and City Commissioners FROM: Chevelle D. Nubin, City Clerk THROUGH: Louie Chapman, Jr., City Manager DATE: October 4, 2013 SUBJECT: AGENDA ITEM WS.4 - WORKSHOP MEETING OF OCTOBER 8, 2013 DISCUSSION REGARDING ADVISORY BOARD APPOINTMENTS ITEM BEFORE COMMISSION This item is before Commission for discussion and acceptance of the proposed Advisory Board Appointment Process. BACKGROUND Currently, the City Clerk's office accepts all applications and makes telephone calls to applicants to determine interest when there is a vacancy and when terms expire on a board/committee. Once the interest is confirmed, the Board Liaison prepares a list of applicants including their background information to Commission for review /interview of applicants prior to the Commission Meeting. The appointments are then made at a Regular Commission Meeting. There is a standard rule in the Code that once a board member serves two consecutive terms on a specific board/committee, they are not eligible for immediate reappointment. They have to wait for a period of one year to apply to serve on the same board or committee. Staff is proposing that Board Vacancies be posted on the bulletin boards in City Hall as well as on the City's website serving as notice of the vacancies; versus personal telephone calls. The applicants will still submit their applications to the Clerk's Office. We are asking that applications be submitted not less than ten (10) days in advance of the particular upcoming appointments and none be accepted for those upcoming appointments after that deadline has passed. However, applicants can still submit applications for all boards on an ongoing basis in advance. The City Clerk/Advisory Board Liaison will review ( "vet ") the applications to determine if they meet the established qualifications /criteria of the respective board and /or the specific category for the vacancy. If the application meets the established board criteria, it will then be provided to Commission for review /consideration of appointment. In addition, since most terms expire July 31 and August 31 of each year, staff is proposing that all advisory board appointments be made twice per year as special meeting items on a Special Meeting Agenda during the months of July and August with vacancies being posted as stated above and filled as necessary. For the boards that have alternate members, we are requesting that the alternate members automatically move to regular membership, if they are interested, upon vacancies. This may help to eliminate the number of times that staff comes before you for regular membership appointments during the year. Staff will make changes to the language in the Local Rules (Section III) in conjuction with what is proposed and bring back to the Commission for approval at the October 15, 2013 Commission Meeting. RECOMMENDATION Recommend approval of the proposed process. 3 ilk- . rY DELRAY BEACH r i o , ,'Q , . A, 1 U-, Y SF C H. FLO—RfDA 3344 58_' /243 -!0170 Aii- A���i�a Cidy �� M1 f. 9 9' 200 RULES OF PROCEDURE - DELRAY BEACH CITY COMMISSION I. GENERAL PARLIAMENTARY RULES. The general parliamentary procedure to be followed by the City Commission of the City of Delray Beach, Florida, except as otherwise modified by the City Commission or as modified or amended herein, shall be in accordance with the axles of parliamentary procedures entitled "Robert's Rules of Order ", being the reprint of the 1907 edition. II. LOCAL RULES. A. The following Local Rules of Procedure shall be applicable to the organization and conduct of business, as well as preparation and publication of agendas, of the City Commission of the City of Delray Beach, Florida. To the extent these Local Rules shall modify or conflict with the standard "Robert's Rules of Order" as adopted above, these Local Rules shall prevail to the extent of their conflict or inconsistency with "Robert's Rules of Order ". In addition to these local rules, rules for quasi judicial proceedings shall apply to proceedings which require quasi judicial hearings_ 1. Regular meetings of the City Commission shall be held on the first and third Tuesdays of each month, with the exception of the month of December and any Delray Beach municipal election dates, at 6:00 p.m., in City Hall. During the month of December only, the regular City Commission meetings shall occur on the first and second Tuesdays at 6:00 p.m. at City Hall. There shall be no regular City Commission meeting on the date of a Delray Beach municipal election. A meeting that would otherwise have been scheduled for such date shall be held on the Thursday immediately following the election at 6:00 p.m. at City Hall. 2. Workshop meetings of the City Commission shall beheld on the second Tuesday of each month at 6:00 p.m. in City Hall, except that there shall be no workshops in the month of December. 3. All regular City Commission meetings shall be held in the City Commission Chambers at City Hall, unless otherwise designated by the City Commission. All workshop City Commission meetings will be held in either the First Floor Conference Room or the Commission Chambers at City Hall, as detem i_ned by the City Manager.- All meetings of the City Coinmi.ssion shall end by 11:00 p.m. unless extended beyond 11:00 p.m. by a majority vote of the City Commission. Thereafter, the meeting shall end upon the conclusion of each hour (12:00, 1:00, etc.), unless extended by a majority vote of the City Commission for each hour. Any unfinished business shall be considered at a time and place set by the City Commission. 4. There may also be special workshop meetings at such other times as so designated in advance by the City Commission for the purposes of holding joint meetings with City boards, etc., to include receiving annual reports and presentations from the City's boards, committees, agencies and authorities, or for such other purposes as may be deemed necessary or desirable by the City Commission. 5. Special meetings shall be called at the request of the Mayor in accordance with the provisions of the City Charter and the Code of Ordinances. 6. To the extent compatible with the conduct of business, all workshop meetings shall be held on an informal basis. The applicability of the City's general rules shall not be strictly applied. Public comments after presentations will be limited to three (3) minutes at the Mayor's discretion or by consensus of the City Commission. Presentations made at workshop meetings shall be limited to fifteen (15) minutes, unless the Commission, by consensus, agrees to extend the time. In the event there is a special meeting agenda du6ug a workshop meeting, public comment on only the special meeting agenda items, not to exceed 3 minutes per person in total, shall be allowed prior to the start of the special meeting agenda. 7. Although appropriate members of the City Attorney's Office and City Administration may place items on either the workshop or the regular agendas, all regular agendas shall be subject to review in advance by the Mayor prior to their publication, except that a majority of the members of the City Commission may request that the City Manager's office place or remove an item on such regular agendas, and that all such regular agendas shall be further subject to the approval of the City Commission preceding the conduct of business at each such meeting. If the Commission or any of its members wish to place or remove an item on an agenda, or if any member of the Commission has a question or concern about an item, any such request or inquiry shall be directed to the City Manager's office for disposition as opposed to any Commission member contacting any City officer or employee who is subject to the direction and supervision of the City Manager. S. With regard to the agenda for regular City Commission meetings, the following shall apply: a. To the extent possible, the City Administration shall group all matters by subject area, and shall place as many as possible on the consent portion of the agenda. b. The agenda format shall be generally as follows: A call to order, invocation, pledge of allegiance, formal approval of minutes, and presentations, if any, public comments and inquiries from the floor, formal approval of the agenda, the consent agenda, the regular agenda, public hearings, first readings of ordinances, followed by items not specifically on the published agenda from the City Manager, the City Attorney, and members of the City Commission. The public comment and inquiry portion shall not extend beyond 7:00 p.m. and in the event there are persons who have not been able to voice their comments prior to 7:00, the public comment portion shall resume after the public hearing segment of the agenda. The public hearing segment of the agenda shall be duly advertised for and shall commence at 7:00 p.m. or as soon thereafter as possible. c. Any items received during the public comment portion of the regular agenda may, at the discretion of the Commission, be discussed by the City Commission at the time of such presentation, may be directed by the Commission to the City Manager for action or resolution, or may be added to a subsequent workshop agenda if a member of the City Commission so specifically requests. d. (1) Votes taken on ordinances, resolutions and motions shall be by roll call and shall be recorded by the City Clerk. The roll call shall be on a rotating basis and according to the numbered Commission seats, i.e.: Motion A — Order of rotation: Seat 1, Seat 2, Seat 3, Seat 4, Seat 5 Motion B — Order of rotation: Seat 2, Seat 3, Seat 4, Seat 5, Seat 1 Motion C -- Order of rotation: Seat 3, Seat 4, Seat 5, Seat 1, Seat 2, etc. (2) There shall be no votes taken on any non - published /non - agendaed items, except upon the declaration of an emergency. The declaration of emergency shall only be determined upon the affirmative vote of no less than four (4) members, or a unanimous vote if only three (3) City Commission members are present and voting on such motion. These rules are not intended to and shall not supersede the procedures and requirements of the City Charter, Code of Ordinances or State Statute with regard to emergency matters for consideration by the City Commission. e. All public comment on agendaed or non- agendaed items shall be limited to not more than three (3) minutes, in total, per person, subject to an extension of such time upon the formal approval by a majority vote of the City Commission members present and voting on such request for extension of tithe. Public comment on quasi - judicial items and items that have been set for a formal public hearing shall only be allowed when those items are specifically heard by the Commission. f. The Mayor shall have the authority to limit immaterial, unnecessary or redundant presentations or requests. III. CITY BOARD, COMMITTEE, COMMISSION AND AGENDA APPOINTMENTS. A_ All appointments to city boards, commissions and committees whose members are not subject to appointment by other entities, and in accordance with any applicable restrictions by State Statute, shall be made in accordance with the following procedures: 1. All vacancies subject to appointment to such city boards, commissions and committees shall be made on a nomination basis by each of the members of the City Commission. This nomination shall be construed to be a Motion to Appoint, which must be seconded by another mernber of the City Commission then present and voting, and then adopted by an affirmative vote of no less than three (3) votes. A Commissioner may defer an appointment to the next regular meeting. I£ a Commissioner is not ready to make an appointment at the next regular meeting then the nomination shall rotate to the next appropriate Commissioner. If a Commissioner makes a nomination /motion and this motion either fails for lack of a second or does not receive a sufficient number of affirmative votes, then that Commissioner shall have one additional opportunity to snake a secondary nomination for this vacancy at this same meeting or the next successive regular meeting. If that appointment should also fail for lack of a second to the nomination or by not receiving sufficient affirmative votes, then the nomination shall rotate to the next appropriate Commissioner. 2. The rotation system shall be by numbered Commission seat and insofar as possible, each Conm)ission seat shall be assigned an equal number of initial appointments from the date of adoption of these rules, i.e.: Board A — Order of Rotation: Seat 1, Seat 2, Seat 3, Seat 4, Seat 5 Board B — Order of Rotation: Seat 2, Seat 3, Seat 4, Seat 5, Seat 1 Board C — Order of Rotation: Seat 3, Seat 4, Seat 5, Seat 1, Seat 2 3. A separate rotation list shall be established by the City Clerk's office for each such City board, commission or committee, and the City Clerk's office shall maintain records of the rotation list, the status of same, and the nominations made by each Commissioner. In the instance where a vacancy is available at a City Commission meeting where the Commissioner who is next on the rotation is absent, then the City Commission shall postpone this appointment to the next regular meeting. Should this Commissioner not be present at the subsequent meeting, then the nomination ability shall pass to the next Commissioner on the rotation system present at that meeting. 4. In the event that an individual, duly nominated and appointed to a board, commission or committee by a Commissioner at a City Commission meeting, is unable to accept or declines the appointment, for whatevet reason, then the Commissioner who appointed the individual unable to serve shall have the opportunity to nominate a replacement appointee to fill the vacancy before the nomination ability passes to the next Commissioner on the rotation system. Such replacement appointment shall be made no later than the second regular meeting subsequent to the meeting at which the declined appointment was made. If the replacement appointment is not made within this time frame, then the nomination ability shall pass to the next Commissioner on the rotation system. Appointments for vacancies occurring on a board wherein the particular member has, for whatever reason, not fulfilled their entire term of membership on that particular board, commission or committee, shall be to complete the unexpired term only. 6. The City Commission retains the right to waive these requirements by the affirmative vote of no less than four (4) members of the City Commission under circumstances that would be in the best interest of the City (or a unanimous vote if only three members of the City Commission are present and voting on such motion). 7. These rules, when adopted, shall supersede any other general rules or local rules which are inconsistent herewith, to the extent of such inconsistency. IV. CITY MANAGERXITY ATTORNEY ANNUAL REVIEW. The City Commission shall annually, in the month of May, conduct a performance evaluation and salary review of the City Manager and City Attorney. Approved and adopted by the City Commission of the City of Delray Beach, Florida, at the Regular Meeting held on April 16, 2013. ATTEST: Chevelle D. Nubin, MMC City Clerk Municode Page 1 of 2 Delray Beach, Florida, Code of Ordinances » - >> CODE OF ORDINANCES -» TITLE 3 - ADMINISTRATION » CHAPTER 32. - DEPARTMENTS, BOARDS AND COMMISSIONS >> ADVISORY BOARDS AND COMMITTEES >> ADVISORY BOARDS AND COMMITTEES Sec. 32.06. -COMPOSITION OF BOARDS AND COMMITTEES: GENERALLY. Sec. 32.07. - MEMBERSHIP QUALIFICATIONSIREQU [REM ENTS. Sec. 32.08. - LENGTH OF TERMS: RESTRICTIONS. Sec. 32.09. - EXPIRATION OF TERMS: COMMENCEMENT OF TERMS. Sec. 32.10. - VACANCIES. Secs. 32.11- 32.14. - RESERVED. Sec. 32.06. - COMPOSITION OF BOARDS AND COMMITTEES; GENERALLY. Generally, advisory boards and Committees shall be composed of five (5) or seven (7) regular members and two (2) alternate members, except as may be provided for by Florida Statutes, Special Act or Resolution of the City Commission or elsewhere within the Code of Ordinances of the City of Delray Beach. (Ord. No. 23 -90, passed 7124190; Ord. No. 31 -06, § 1, passed 6120106) Sec. 32.07. - MEMBERSHIP QUALIFICATIONSIREQUIREMENTS. Members serving on advisory boards or Committees shall possess sufficient knowledge, experience, judgment or background necessary to competently serve the Board or Committee to which they are appointed. Members shall be residents of or own property in the City, own a business within the City, or be an officer, Director or manager of a business located within the City except as may be provided for by Florida Statutes, Special Act or Resolution of the City Commission or elsewhere within the Code of Ordinances of the City of Delray Beach. (Ord. No. 23 -90, passed 7124190; Ord. No. 34 -01, § 1, passed 6119101; Ord. No. 31 -06, § 1, passed 6120106) Sec. 32.08. - LENGTH OF TERMS; RESTRICTIONS. (A) In general, all appointments shall be for a two -year period, except as may be provided for by Florida Statutes, Special Act, Resolution of the City Commission or elsewhere within the Code of Ordinances of the City of Delray Beach. (B) In the case of reorganization or reconstitution of an advisory board or Committee, three (3) members shall be appointed for an initial term of one year, with the balance of the members being appointed for an initial term of two (2) years. Thereafter, all appointments shall be for two (2) years. (C) No member shall be appointed for more than two (2) successive terms (original term, plus one additional term). A member who has been appointed to fill an unexpired term shall remain eligible to serve two (2) full two -year successive terms. (D) http : //Iibrary.municode. com/print. aspx ?h= &clientID =13 704 &HTMReque st =http %3 a %2f... 10/4/2013 Municode Page 2 of 2 Upon completion of the maximum allowable two (2) full terms of membership as described in subsection 32.08(C) above, no advisory board or Committee member shall be eligible for reappointment to the same Board or Committee for a period of one year. (E) No member of any advisory board or Committee may concurrently serve on another advisory board or Committee. However, this prohibition shall not apply if an ordinance and/or resolution expressly provides that the membership of an advisory board or Committee includes, as part of its membership, the member(s) of another specifically named advisory board or Committee. The prohibition will not apply to any person who is a member of an advisory board or Committee and also is appointed to serve on the Neighborhood Advisory Council and /or the Unity Collaborative. In such a case, a member of the specifically named advisory board or Committee is eligible to serve on two (2) or more advisory boards or Committees. Notwithstanding the foregoing, a member may serve on more than one task force or ad hoc Committee or may serve as an advisory board or Committee member and a member of a task force or ad hoc Committee without being expressly provided for by an enacting ordinance or resolution. Dual memberships, where allowed herein, shall not be allowed if prohibited by Florida Law or the Florida Constitution. (Ord. No. 23 -90, passed 7124190; Am. Ord. No. 7 -99, passed 2116199; Ord. No. 40-03, § 1, passed 10121103; Ord. No. 31 -06, § 1, passed 6120106) Sec. 32.09. - EXPIRATION OF TERMS; COMMENCEMENT OF TERMS. (A) Expiration of Terms. All advisory board, Committee (regular and ad hoc), and task force appointments shall expire as follows: (1) Board of Adjustment, Site Plan Review and Appearance Board, Planning and Zoning, and Historic Preservation Board memberships shall expire at 12:00 midnight on August 31. (2) All other Board, Committee (regular or ad hoc) and task force memberships shall expire at 12:00 midnight on July 31, except for the Civil Service Board, Code Enforcement Board, Community Redevelopment Agency, Downtown Development Authority, Delray Beach Housing Authority, Police and Fire Pension Board, and the Public Employees Relations Commission which are governed by Florida Statutes or Special Act. (B) Commencement of Terms. (1} All appointments to membership on Boards referred to in Section 32.09(a)(1) above shall commence at 12:01 a.m. on September 1. Those referred to in Section 32.09(a) (2) shall commence at 12:01 a.m. on August 1. (Ord. No. 23 -90, passed 7124190; Ord. No. 4 -09, § 1, passed 213109) Sec. 32.10. -VACANCIES. Where a vacancy is caused by the resignation or removal of a member prior to the expiration of his or her term, a member shall be appointed to complete the unexpired term only. (Ord. No. 23 -90, passed 7124190) Secs. 32.11- 32.14. - RESERVED. http:// library. municode .com /print.aspx ?h= &clientlD= 13704 &HTN4Requesi= http %3 a %2f... 10/4/2013