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Res 06-15 i RESOLUTION NO. 06-15 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING THE ROAD RIGHT-OF-WAY DEDICATED BY THE MODEL SUBDIVISION PLAT SECTION 18, TOWNSHIP 46 SOUTH, RANGE 43 EAST, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, AS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach, Florida received an application fox abandonment of a road right-of-way that measures between 8.98 feet to 10.80 feet wide and 399.17 feet long road right-of-wap running east and west within the Model Subdivision plat Section 18, Township 46 South, Range 43 East of the Public Records of Palm Beach County, Florida, and as more particularly described in Exhibit "A"; and WHEREAS, the application for abandonment of a portion of said tight-of-way was processed pursuant to Section 2.4.6(M), "Abandonment of Rights--of-Way", of the Land Development Regulations of the City of Delray Beach, Florida; and WHEREAS, pursuant to LDR Section 2.4.6(N)(3)(c), the application was forwarded to the City Commission with the recommendation that the abandonment be approved, based upon positive findings; and WHEREAS, the City Commission of the City of Delray Beach, Florida, pursuant to LDR Section 2.4.6(M)(5), finds that there is not, nor will there be, a need for the use of the tight-of-way for any public purpose (Policy A-6.3 of the Transportation Element); that the abandonment does not, nor will not, prevent access to a lot of record; that the abandonment will not result in detriment for the provision of access and/or utility services to adjacent properties or the general area; and deems it to be in the best interest of the City of Delray Beach to vacate and abandon a portion of said right-of-way, as more particularly described in Exhibit "A." WHEREAS, the City Commission approved the abandonment subject to the Planning and Zoning Board conditions of approval from the April 20, 2015 meeting and are attached as Exhibit "B." l NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: reference. Section 2. That pursuant to Chapter 177 and Chapter 166 of the Florida Statutes, it is hereby determined to vacate and abandon all right and interest it holds to the following real property, more particularly described as follows: See Exhibit "A" PASSED AND ADOPTED in regular session on this the fT"_ day of , 2015. MAYOR ATTEST: City Cletk 2 RES_ NO. 06-15 1 EXHIBIT INA" i i a� d J b Z-i-'-tr •U�U aj c y-• d -r V1 p S V) a D U to n iy v i �ro °tn ¢ ri s p 0 croscx ¢ rz �l Ofn �r_Z _ m - 4- -� mnasC7 m _ -0 a � DI off �Q o f+ d `= � Ky vi wa uinw ob QzhIIA � Su Q O Ll7 J C Qy W p Q} N -l-� o 11$ m a b LL a 'o r� 0 ay b b �Q 0 b e i O J O Q b UI U N L] m C 4 �`- 0 4 �yr�t r- o o u o,v �mw�l o ¢C) � hmL) � W Lra 4, Q ori LQ¢ � °rn LO ° as ❑ 07sms to q CO v i �C] UJ 7 n, U,F �O fr7 VI •,._. �-'- +�_r Q T:..a • Ei'. � 1 U ol " 7:3cr ° app° � ¢`�` H D 0 1 y-- i. aCy• 07 m a 'Ll .r3,..j vii .Y�a"Q CL] F" a'g cy La CQ t:y f �a C, d �r t] at LU C5 Cli in d 4� j arn o ' r}n ' II o p 0 ' EL 0 N o � °n �, o a n ss cflGl� Lo o o O C, t�3 ` 73 y a N t3 a. 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UJ Qy a1 xv E3 o¢ aVi a La a LL o rn a � li1 x c� a I�a m m m a o v o co r� c CR c�i r 5 4 La� t7 � o c� o f ' i EXHIBIT "'Avg LL 4FVG—Vf.I LU cm b ti R V I MA 711W 1 +F+ 4 ' (99ZL/ -giz g,H2O) -- zaI�l NJ iJlVQS 01Hab�l@ d LU 96 �iVIG�GiNl N01103S 3Qa m,g6'8 0�l 05 max a a r� [a r x z U Lr_LL u� 4'YN �O 3NII 1Sd3 2,qugoUS pzaU- IQ L I \o Q _ Y \ `nI _ Q C3aQQ 1 rj _n �7 t a O F'� Q } IL cLu 4 dC° f� cn �`c I 0�0--,CV c LII O O P~, � �� pCL(n l,]� 4m N ut i � m ��pLurl�Lum �tu€ I a-4 O � ¢ « r I p aY OL I � 7 � p Qdm i � ;% V) Q2 t0o CD 0 1 I L LD - -Lu� co 0 LL Q d .. t�S I Q �- Ln ti L5 QD Ctrl I f CV LL I I r' ID � 4 v _ 1 d J 2 d [[7 f I LJ o g C,4 d U r p 0 to tx l -� � Q a- cn cn ooa U3 Zo F- Z Lo erf Cr} ¢ md �io � � I l � C +s� U � Q2 f2� e [s Z l o.. z IC2 Ed ro Z 0 -_->.. tom-' W I � � � S TC �h�f- Oro Li L- I �_LJ i-- o � , I ::5Ea- 0 ? z off' � - 1 rd 1141 w I ; NC < (M��J C331H01030) i 1{ i _ C14 '�'d) '^ _ __.,� .� Lo CD tYs „ �OV�L avo0 l Lod](] AA.PR,Zg.00N o (CjvomlV�j lmllisvDo clWOGVES) GvoO 5vl XS3 Iz i Exhibit `jB" 1) Submit civil plans clearly indicating location of proposed right-of-way abandonment and right-of-way dedication. 2) Submit civil plans indicating location of existing and proposed utilities in area to be abandoned and area to be dedicated. 3) Provide legend for any hatching used. 4) Submit civil plans indicating location of all water and sewer casements to be dedicated and existing ones to be abandoned. Please indicate when this process will initiate. This will need to be taken to City Commission for final approval and prior to issuance of Building permits. 5) Submit civil plans indicating location of new drainage easements and tracks to be dedicated. Please indicate when this process will initiate. A copy of the recorded deed(s) will be required prior to issuance of Building permits. 6) Submit civil plans indicating location of all FPL easements to be dedicated and existing ones to be abandoned. A copy of the recorded deed will be required prior to issuande of Building permits. 7) Approval of the Fire Marshall 8) That the 40-foot radius be incorporated in the plan. l r 1 r � r � r r r r 1 r � r i I II I Q II I II r fl � Y Q I r Q r I 0 r I r N.W. 20ST. 1 I I I I 1 � I � I i Il � Al � Il � Al R—O—W ABANDONMENT DEPOT SQUARE APARTMENTS PLANNING AND ZONING SUBJECT PROPERTY DEPARTMENT _ RIGHT-OF-WAY ABANDONMENT -- DIGITAL RASE MAP SYSTEM -- MAP REF; S:\Planning do Zoning\DBMS\H—Cab\Z—LM 1001-1500\LM1455—Depot Square Apartments R—O—W Abandonment C il9lHX3 _ LL LO 7-) a I- v o a) cn II v c nT"i Lr- ¢ o oLp Upl O ,b L ( CC C 4 Q T O cn O m ¢ 0. -p V1 p 'Y d Z � po � � a) c`x tc'� E � m ¢ � L w C) o Cn c ¢ °° ° 0 ar p O LTri a> m Cn � s �, CD - U , U) o w U LL zV �cNodv �vcCzp +�' [z� I— o -01 ali mII �p z oT2 pQ w 0 � °� o ' CL � w 4- � cid- w �QLn cvz -Q c ' dzo o c Zpa�w a > q � O o a,¢ Lu �'~ a o �' ai 0 0� rn CL 0 ¢ z u O �u C!} m c ° �'- o m m o ° a> � �c c ¢ Z Qcn04� }, O J a 0 ❑ G7 U N a) •C V D 2 U Cl,.O j O � � w � o c Lei � Q) LL v� wcr, +1 0 O Q LL1 L) v �o00 LLIo � ZQ � � M LO -0 =ma Up ° o UQ z U C ,- a -0 0 LL� p � Q L � rCIE C9" U) co L = Fd aaWJ m °N aas f° sn a �Q � c 'Q LLJ Q <': ��z0B Qp O v7Cn aJ O " cn CE f- ❑.Cf) - L) CD 0 v o ° ¢ 0 LL 't v 0� 0 b ' 00 L) b cCO ° v p _ G (1) O 0zUQ o o � ° O cm 0 a Z o Lul U O ~ N Q s acni " U Q Z cn v c� a) v CV ao LLI co a ¢ ` 0) o LL � 0ws ' rn O b a w to 0 Lo LLJ LLS C w T O � cc) C L a) -0 O V] 47 a7 -p o '}' d I �- OLOZ U O "+_'' 00. 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Q0 E CD „M�i„ IOd�Aj CMI LOdIC I MAU9.00N co a � (&Obl lVdd '3NII1Sd00 O'dVOSd3S) avai lmi X50 F w MINUTES PLANNING AND ZONING BOARD CITY OF DELRAY BEACH REGULAR MEETING MEETING DATE: April 20, 2015 MEETING PLACE: City Commission Chambers MEMBERS PRESENT: Steve Mackey, Jay Jacobson, Mark Krall, Gerald Franciosa, Joseph Pike and Christopher Davey MEMBERS ABSENT: Robin Bird STAFF PRESENT: Mark McDonnell, Nguyen Tran, Consultant, Noel Pfeffer, City Attorney and Diane Miller Board Secretary I. CALL TO ORDER The meeting was called to order at 6:OOpm by Christopher Davey, Vice Chairman. Upon roll call it was determined that a quorum was present. Vice Chairman read the Quasi- Judicial Rules for the City of Delray Beach and Ms. Miller swore in all who wished to give testimony on any agenda item. MINUTES FOR DEPOT SQUARE DEPOT SQUARE Noel Pfeffer Party Status - Tom Mullin,Attorney for an adjacent property owner. Due to the contents of the letter I request that they receive Party Status. Motion to grant party status. Motion made by Steve Mackey and second by Joe Pike. Motion Carried 6-0 Let the record show that Jay Jacobson stepped down as a contractor purchaser or his is going to benefit as I am a former partner. Mark Krall stepped down as he is affiliated with the project. Mark McDonnell, Assistant Director of Planning and Zoning presented the item through a review of the staff report, Project file 2015-127. Added to your package is an email dated April 20, 2015 from Michael Rodriguez, Division Chief and Fire Marshall (email can be acquired from the project file. This email is in regards to fire standards) 1 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Also, I would like to introduce to you a consultant on this project Nguyen Tran, and Isaac Kovner, Engineering. Applicants Presentation Bonni Miskel- Representing the applicant-Are request today is not about reviewing a plat or reviewing a site plan, it is a request for abandonment of a portion of NW 2nd Street. NW 2nd Street was originated by the old model land plat back in 1951. The area has since been replated by the Historic Depot Square and NW 2nd Street which shifted about 10' south. (Bonni Miskel pointed out on a map the old NW 2nd and you can see a bit of an overlap of approximate of 10'. This overlaps into the new tract B1) The area that we talked about to be dedicated is the 10' along the north side of tract Al which the existing right of way (plus the area pointed out on the map). The old platted right of way is 30'. So it is exactly the same. The final right of way is a 30'which will lead you right between the (2) tracks. What is being shown is graphics of the site plan that was approved and it shows the platted NW 2nd Street. This request is consistent with the new plat, the Historic Depot Plat that was approved in January 2012. Some concerns have been raised by the neighbor on how their access would be impacted by this change. We showed them by laying out how a truck would come today and how it would come in with this slight shift of the right of way. The land owner has agreed to cut off a corner to make their access better than it is today. (Pictures shown at meeting) In regards to recent Fire Marshall comments we have met with him and we have provided an alternative for them that should comply with their requirement, and we have no problems with the condition and we will meet that prior to City Commission. We will accept all conditions that staff have imposed. Applicant Presentation Tom Mullin- Nason Yeager Law Firm - 7700 Congress Avenue, Boca Raton, Florida I joined tonight by the owner of Depot Warehouse,John Gwynn. (Mr. Mullin gave out handouts to the board) What I am here is to show misrepresentation that has slipped through the cracks and unfortunately you aren't given a clear picture of what is happening here. It is shown here that the model land company plat that is referred to as the right of way that is being abandoned is approved in 1915. This is not a scrivener's error; this is an existing right of way from an old plat that they missed when they went to abandoned this from before. This is just a characteristic of how my client has been treated throughout this process. There is a right of way that extends all the way down; through to the eastern edge of my clients property, but they do not show that in any of their drawings. In Exhibit A that is already in the package that I submitted, this shows the true right of way. What they have done now when they originally submitted an application to abandon this area as a utility easement, and I had to point out to the City and staff that this was not a utility easement, they were trying to skip coming to this board and go straight to the Commission. This isn't a utility easement or FPL line it is a right of way and it needs to go to Planning and Zoning first. So what they are doing is that they are shaving off 10'. If it was the full width of the right of way they would need my clients consent and you are not on his 2 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) portion of the property. They only choose to do 10' so they are not in compliance with the plat. Now they have called this `Acreage" on the plat and this is not acreage this is an existing business, existing since 2002. My client back in 2009, questioning access issues and questioning roads and whether he would have availability to continue to bring full size commercial trucks and 18 wheelers on to the property. John Gwynn- 901 George Bush Blvd., Delray Beach, Florida I brought the property in 2001, bought it as an investment property, good college fund. There is a roofing company to the west, City train station and Depot Warehouse. The roofing company was acquired by this development group and they knocked it down, so it left the City of Delray Beach with the train station and the Depot Warehouse. Now I rent out about 7 different spaces and they employee a fair amount of people. I keep reading there is no public purpose, but there is purpose and it has been out there. I am late entering this game because I wasn't getting notices to all the meetings that were being held. I am not shy to come to these meetings; I have been here 55 years and been to plenty of them. I know how the system works; I have just been masked out of this whole project. It has had 3 different colors from when I first heard it, first industrial, office, residential, and watch the cut and paste expedition on this road abandonment. They already abandoned one road without my consent, and that was Depot Avenue, the north-south road. Now when they attempted to abandoned this as a utility easement, we caught it, challenged it, now they are saying we will just do 10'. Now the tractor trailers coming in and out, they have showed in the sketch they provided tonight, but what they failed to explain is how do they get out, because they would have to back up 200'. There are real situations here and no consideration given to my existence and that is why I am fighting. I am asking for your help and also the help of the emergency people. Tom Mullin With some legal arguments, as my letter pointed out, we completely disagree that this does not meet the LDRs, specifically as Mr. Gwynn said, public purpose. Public purpose looks at not only the general public use, and there is a train depot in the southwestern corner but also the tenants and customers of the warehouse. We respectfully disagree that there is a public purpose and that should be honored. But also there is a detriment of access, and detriment of access is a very broad statement and we think that should be construed in our favor, as the existing user, existing landowner. We are the ones that will be impacted here, and the detriment of access at any level. Can you drive a car through this winding road to get to the property, yes you can. Narrowing the right of way from 30 to 20', we feel this is a problem. I also think this a violation of the comprehensive plan and you're LDRs with regards to minimum rights of way. Also outlined in my letter, the minimum right of way for commercial industrial local road is 60'. So not only are you considering shaving off this 10' to avoid my client's consent, but there is also a dedication of 30'. This is a redevelopment; this is not an issue of non-compliant use, so you have to bring the property back into your current code. The comprehensive plan says 60'minimum right of way. It in the transportation element. I don't know how you can get around some of your proposed recommendations here stating that it is consistent with the comprehensive plan. Finally, referring back to the letter from the fire department 3 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) where it prohibits your approval until the fire Marshall approves. That is how I read this. This requires approval by the fire Marshall prior to approval from the local planning agency. So you can not approve this and add a condition then seek approval from the fire Marshall. This is prohibited. I don't see how this can be any other reading of it. I feel you must at a minimum postpone this decision until the fire Marshall works out his issues. Motion made by Joe Pike and seconded by Steve Mackey to extend the meeting till 11:30pm. Motion Carried 4-0 Public Comments - None Cross Examination Mark McDonnell- None Bonnie Miskel- None Tom Mullin-A couple of questions for Mark McDonnell. Tom Mullin -Do you agree that the transportation element, comprehensive plan requires a minimum right of way for non-curbed street of 60'? Mark McDonnell- That is what the Comprehensive Plan say, yes. Tom Mullin- Is the applicant proposing a Wright of way with the proposal tonight? Mark McDonnell- No Tom Mullin - Is you're reading of the email from the Fire Chief that their approval is required prior to approval from the Board tonight? Mark McDonnell-Yes Rebuttal Mark McDonnell - The only rebuttal that I have tonight is that it is not a 20' right of way it is a 30'right of way. Bonnie Miskel - This is the first time that I have had the opportunity to see the fire department email. Does each of the board members have a copy of this email? Mark McDonnell- No they do not. Bonnie Miskel - Can I read this into the record, because he is misrepresenting what is in there. It reads: Mark, I do realize that we are in the 11th hour with this project; however, a concern has been brought to my attention regarding access to the commercial property at NW 2nd Avenue owned by Mr. Quinn. It appears this road is turning into a dead end creating access concerns for fire department apparatus. As you are aware the LDRs states the following regarding dead end streets, site 6.1.2(Q4(A) prohibits dead end streets, cul-de-sac or hammer head required is provided. This requires approval by the Fire Marshall, prior approval from local agency. Please understand that when this project originally was approved in 2011. First of all, you are not approving a site plan tonight; you are not approving a dead end street. So if in fact you were approving a site plan and what was on the site plan was a 4 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) dead end street, and then yes it would be a final approval by you (the board). But you are a recommending body of abandonment and talking about 10'. It is currently an existing condition that is out there that they have not objected to before as a dead end. We are not asking you to approve a dead end street; we are simply asking you to approve an abandonment of a portion of a right of way. So I wanted to make that correct for the record. We are not asking you to go over the Chief Fire Marshall, and we understand and final approvals, their decisions prior to the final approval that would create a dead end street. We are not creating a dead end street, it already exist. Public purpose, they already have a 30' right of way. We are not creating that or taking it away. If you approve this abandonment they will continue to have a 30' right of way. Platted the new Historic Depot Square is a 30' right of way. It was already approved. So we are not asking you to change that. The minimum requirement of 60', you're not here tonight to decide what the right street size is. The street was already approved by many. Plat was approved. This is abandonment. What they are raising is irrelevant. They should have objected if they wanted to years ago. They chose not to. Tom Mullin What you are also approving is a dedication of a right of way. It's not just abandonment; it's a dedication of a 30' right of way. And actually a 10'right of way because there is that existing 10' right of way. And there is still going to be a 20' in front of the Depot Warehouse property which is going to be effectively useless. Let me get to the LDR provisions that really are the issue here which is 2.4.6(M)5 something and the detriment of access. At a minimum the email from the Fire Marshall questioning access is evidence of a detriment of access to an adjacent property. Board Questions Steve Mackey - I am very familiar with these types of properties. The whole issue the way that your trucks are coming in now can you take us through the way they are currently circulating 53'trailers through the property. My first question is where is the northern property line? Is it at the chain link fence? Tom Mullin-It is not shown in these drawings,but it is 15' into the right of way. Steve Mackey- I have a dash line that seems to be going through. Tom Mullin - One of those are the FPL power lines. The Model Land Company Plat which is subject to the abandonment tonight is the middle one. Steve Mackey - That is my question, the property line goes through what looks to be some paved area with parking stripes. It looks like it going through, and it looks like the center of the right of way. Is that correct? Tom Mullin-Yes Steve Mackey-Whose chain link fence is that? 5 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Tom Mullin - That is Mr. Gwynn. The fence comes down at an angle and goes down to the south side. Steve Mackey- Is it safe to say that and I am assuming that is asphalt strip parking in the right of way? Tom Mullin-Yes Steve Mackey - Did the owner get proper permitting and if we are talking about 2' to 3', let's just try to understand who owns what. Tom Mullin - It was all developed in the early 70's as part of the industrial park. I believe that NW 2nd at one point went through where Interstate 95 went through and then when Interstate 95 went through I think that John would know more about that. John Gwynn - The property I bought in 2002 was developed in 1981 from what I can find in the permits and that is why they have that central right of way to the westerly side. They were supposed to do more industrial back in the early 80's and I am probably owner #4 since that has happened. Tom Mullin - We are talking about a plat in 1915, so some land company plat took huge tracks of land and broke it up into sections and put a right of way at one of the section lines. It is not a plan of development. Steve Mackey- I understand, Interstate 95 came through and busted up the road system and left with a lot of rights of way that you frankly don't know what to do with. I just want to understand where the property lines were and it is normal for some of the property to creek over lines and gets into these abandon rights of way. Not technically not abandoned as conditions, but whenever this property was built it clearly gave themselves a couple extra parking spaces out into that right of way. How the property is currently operating, you have pictures of 53' trailers coming in, how does this property circulate right now. John Gwynn-Actually they will pull forward and back in and then unload on the left side and pull straight out. Steve Mackey- So they are currently coming down the road and pulling north? John Gwynn- They come right past my ingress and then back in. Christopher Davey - So they are coming from the top of the picture, down and bending around to the left. John Gwynn- (Mr. Gwynn walked up to screen and pointed to what he was saying) 6 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Steve Mackey - They are now backing down 2nd east. The driver is going to back his trailer to the south, unload on the west side of the building? John Gwynn - They would have to back all the way down the building. Where they would stop to where the trailers at the edge of the property and go right in. These pictures are not true because they show the trailers going in but not out. There is no way they can turn around. Steve Mackey-There is zero circulation. John Gwynn - It is too tight on that far southeast corner. Steve Mackey - According to this diagram, you have the truck coming in front ways, which is going to cause the clip in the corner. John Gwynn- They created that, and it looks like it will work. Steve Mackey - The existing conditions show it will probably be best if the truck came down on 2nd Street facing east, takes a left to go north then he can back his trailer straight in without it jacking in. I am just trying to understand what is happening. Gerald Franciosa -Where is the dead end? John Gwynn- There isn't a dead end because the road sweeps. Bonnie Miskel - There is a dead end, because what he is traveling across is private property,there is no road there yet. Gerald Franciosa - How did the 10' from one side to the other affect you? John Gwynn- There are so many discrepancies in these surveys they don't even know. Gerald Franciosa - How does the 10' affect you if they are taking it away from the south side? You are still going to have 30'. The dead end will be where the curb is, and that will no long exist. So where does the 10' easts of your building affect you? Tom Mullin - The only opportunity for any turn around area is going to be on that eastern edge. Gerald Franciosa - It will make it easier to move to the north side. Tom Mullin - No we are losing it. The only remaining right of way as Mr. Mackey pointed out was that already on property that is already developed. So the opportunity for turnaround is there on the eastern edge. They shouldn't be taking away right of way; it should be an opportunity to actually fix the issue. 7 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Gerald Franciosa - You did nothing, you left it the way it is and you built a development. How are your trucks going to get in and out? Steve Mackey - The other issue is that this building was never built to accept 53' trucks. You can see that with the circulation on the south end of the property. I am very familiar with these properties, they were built in the early 80's here in Delray and Boynton, it really stinks that you bring a 53'trailer in there. Unfortunately I cannot change the roads, I can't put the building in another area fit 53' trucks because that is how everything is being shipped. John Gwynn- It has been going on for 32 years now. Steve Mackey- I am failing to see the hardship that you guys are claiming right now with this easement issue. I don't know how this plays in with the history with your neighbors or what; they are developing all around you. I get that. You have an industrial use, and it probably was zoned all industrial at one time, but now it is approved for multi-family. If you could would you please explain to me a little bit more the hardship that you are now going to be faced with this easement issue as it pertains to the way the building is currently operating. John Gwynn - The roofing company to the west did the same thing with big trucks and both these properties were built early 80's and had the same thing where the semi's backed in. This has been going on for 30 years. Now we are getting into a different world but what happens to the people who sat there and survived until this came. Steve Mackey - Are you saying that the way they ship now with 53' trucks even if you have a 1000 sq. ft. warehouse, I understand that and I feel for you, but I can guarantee you that we are not going to change the way materials are being shipped right now. So unfortunately the property that you bought is designed this way, so if you are claiming a hardship from the 53' trucks I don't think that is a fair statement in something that we can't look at in a positive way. The fact that you can't fit 53' trucks around this building I think is not applicable to this easement issue. John Gwynn-We do it on the west side,we always have. Tom Mullin - It is not circulation around the building it is just the ability to back it in. John did not get into it but a prospective tenant declined because he could not guarantee that Sam bread deliveries. Steve Mackey-That happens to me every day. Tom Mullin- But this is due to a specific issue that is coming before you now. Steve Mackey-Where is this 10' going to change? 8 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Tom Mullin - The standards detriment of access, we are going from a 30' right of way to a 20' right of way. The Model Land Company plans a 30' right of way and they are removing 10' of it. Gerald Franciosa - They are giving it back to you. Tom Mullin- They are keeping it for themselves. They are not giving us anything. Gerald Franciosa - The way I understood it they are taking 10' from here and giving it back here (pointing to a picture) Tom Mullin - If you look at Exhibit A of my letter, it actually has both of the areas and actually shows the Model Land Company which they originally proposed to abandoned, and then they go with the 10' strip instead. Now they are dedicating 30'. This is all very basic. Christopher Davey- What you are saying on the north side of the property it is going to be a full 10' width removed. And yet on their property they will have a 10' width removed,but that is not coming from your property. Tom Mullin- That is correct. Christopher Davey- If that full easement or right of way is to be shifted you would have to kick in 10' also to keep it uniformly correct. Tom Mullin - Correct except you are talking about parking lot at that point, and they have a site plan that already been approved that already has a plat that shows a road in a certain location. So we are not proposing anything new that we need to alter the current use. Christopher Davey- Let me ask a question of the City Attorney. Regarding the approval, and not sure if you read it or Mark McDonnell read it, regarding the approval by the Fire Marshall prior to approval by a local body, can you tell me what applies here? Noel Pfeffer, City Attorney - I wish I could and that caught me by surprise, I was unaware of that issue until I walked into this meeting. I do know that you can approve with conditions and I think they are willing to have as a condition of approval that they get sign off by the Fire Marshall, so I think that works but I would like .....I am going to offer you that advice and I am going to get up and walk over and read the LDRs that Mark McDonnell has referred to. Steve Mackey - I can probably tell you that if we do this with a condition of getting the fire approval those rigs are very large, and to access here they will be able to get trucks in there as well. Whatever they work out with the Fire Marshall, and I can tell you this, it is going to be the fewest amounts of turns but they will get them in there and if it works for the Fire Marshall it is going to work for the trucks access into the property. 9 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Christopher Davey-Well the fire trucks aren't 53'. John Gwynn- They are not that long. Joe Pike - We have seen big radius for those things, and we have done hammer heads and stuff with those before, so I agree with Steve Mackey. Steve Mackey-And if you do a hammerhead, and some sort of a turn down there where the truck goes and backs in then you are never going....I don't want anyone to think that you are going to get a truck to circulate around this thing. Christopher Davey - I look at the 18 wheelers now to deliver to Boston's or Oceans 50 and they literally block Atlantic Avenue because they pull down and back into the alley. Steve Mackey - They didn't use to use 53' trucks to deliver to these older and smaller properties because the way that they load the trucks now they can do smaller shipments. So it is a problem with these older warehouses that don't have the turning radius and grade level docks,but the existing conditions are out there. Joe Pike - I have a question and I realize the site plan for this was approved some years ago. My question to Bonnie Miskel, with respect to the approved site plan and plat, and we talk about scrivener's error, where does the site plan show the access currently? Is it 10' over where it's going to be or..... Bonnie Miskel - It shows it as exactly as it was platted, it shows exactly as we requested 10'to the south. The entire road was shifted 10', it was shifted on the plat and it has been shifted on the site plan. So everything conforms to the new platted right of way, what has been platted 3 years ago. Jose Pike - So what was approved 3 years ago? This is housekeeping, so you are taking the northern 10' and moving it where it needs to be to support... Bonnie Miskel - To make all of the documents of record add up and it is 30' not 20'. The plat platted 30' and the right of way that they will have access to their site, which is what the code says, is 30'and it goes to their site. Noel Pfeffer - I am perfectly comfortable, if you are so inclined to approve the abandonment just make approval with the Fire Marshall as a condition. You need to do that. Christopher Davey- The last question I have what is the width of the paved roadway in that area? Mark Smyle - Smyle and Associates, Representing the developer I believe it is 24' from edge of pavement to edge of pavement. 10 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Christopher Davey - Because as I am looking at this color rendering in our package, it seems like the northern edge of the road, some portion of it will be outside of the right of way. Mark Smyle - No,the way the site plan done,the engineering plans were done, the paved area, curb, is in the right of way and there actually is a little bit of green space. Christopher Davey - Even after it chips 10' because on the overlay that I'm looking at it definitely looks like the paved road is now outside of what the new right of way would be. Mark Smyle -Are you talking about the current road or on the site plan road? Christopher Davey-The current road. Mike Averon-Averon&Associates Currently the broken paved road starts at a point on the west side at`0', it meets that line, and as it transitions easterly it is about 1.9' in the transition of the curve outside of the proposed right of way line. Christopher Davey - So I assume that you are going to shift this road during the development of the property? Mike Averon- That is not a question I can answer. Bonnie Miskel - Yes that is correct. There is an agreement that we keep the one road until the other road is constructed. Christopher Davey - And that road will then be...the road is currently how many feet wide? Bonnie Miskel- It is about 24'wide Christopher Davey-What will the width of the new paved road be? Mike Averon - It will continue to be 24' wide. The standard cross area will still meet the typical 24'width. Gerald Franciosa -Where will the road dead end? Mike Averon - Chief Rodriguez and I spoke today about 3:30p, and we talked and his issue is to be able to turn around there and NFPA standards allow the trucks to back up 150'. Once you get over 150' of a dead end you are supposed to provide a `T'turnaround. Gerald Franciosa -What happens to this road in the future? Mike Averon- It goes away. 11 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Gerald Franciosa - So the way the trucks are coming in now, they will not be able to do that anymore. Mike Averon-You are not allowed to back up in a public right of way. Gerald Franciosa - So when the fire apparatus is coming down where is that turning around? Mike Averon - So what the Fire Marshall and I talked about this afternoon is that the NFPA allows them standards to back up 150'. If you go over 150' of a dead end you have to have a cul-du-sac type situation. One of the ideas that we have discussed is to provide him and emergency access that goes around the building #6. Joe Pike - Iam failing to understand the process. (Mr. Averon had a picture that he showed the Board and explained the procedure with discussion) Steve Mackey - Now you have taken care of the emergency vehicles but.....I got some correspondence and email going back a handful of years between the history with the developer and the existing property owner. Have you people fully explored and meet in the middle? Because it seems to me that the existing commercial building doesn't need a ton of land to get trucks in there and turned around. The developer has an entire parking field right to the west of the property. I read a 1000 sq. swap for a 40' something and the property owner did not want to do that. Can somebody give us some color on this? Tom Head - 1280 Patchmont Drive, Boca Raton, Florida I own the property, I am the developer. Many years ago, 7-8 years ago I met with Mr. Gwynn and took him plans, showed him the road, how it was going to come around, explained everything to him and my son met with him twice after that. He has known exactly the road coming into his property for over 7 years. He just came around about the last 3-4 months with this. What we are talking about doing is very simple, right now he brings his trucks in on the east side and pulls into his property, pulls alongside his property because he has trouble pulling into his property. What we are going to do, we can bring his trucks in from the west side, and he still has 30' and will have the same entrance as he has today, just from the west not the east. To tell you anything different just is not right. Christopher Davey- But the road is not going to wrap easily. Steve Mackey- He is coming in nose first, so how is he going to maneuver to get back out the way he came in. Tom Head - He does have a problem,what he gets in to his property he is going to have a problem. We have some drawings to show you this. If he can maneuver his parking; right now he is parking on my property, if he wants to park on his property and pull big trucks 12 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) in he has to move those cars out of the way. He has a very small site. We are willing to work with him; we are trying to find a way to work this out. Mr. Kovner has agreed to come out and meet us in the field and show him how we think we can do this. John Gwynn - This project has been going on and on and every time I met with Mr. Head I always have concern about my access. It started with industrial, than office residential, and I was not notified of all of these meetings. I did I find out about this, he over-platted by 2',tried to swap my western 2' for garbage land to the south and I can't use that. Steve Mackey - I have seen this lot and have a lot of experience with the older warehouses in the new urban area and they functionally obsolete. They just can't accept a 53' truck. My opinion here is that there is a lot of residential density coming in and around you and I think 3 years from now you might be very surprise to see that I have a lot of retail people in here now to support all the surrounding residential things. The reality is that you cannot get 53'trucks into your area. John Gwynn-We have been doing this for 13 years. Christopher Davey - I think that part of the issue is that his property now is zoned industrial, but the problem I am still having is that his access to his property is being somewhat diminished. John Gwynn- It is being chopped down...no doubt. Joe Pike -Are we talking about the route in or moving the 10' Christopher Davey-When you look at this they are willing to make accommodations for emergency vehicles to come around back, but for any delivery vehicle now they have a much more difficult time maneuvering around. As a real estate broker I understand what Steve is saying about the value of the property to increase in value. Even with retail trucks today,they still might have a hard time maneuvering. Steve Mackey- Is it possible to hold that dedication? (Conversation among the board members at the dais) John Gwynn - Going back to talking about the turns, the only think that we have is the drawing where you can get the truck in. Christopher Davey - My problem with this, obviously the new development to change this road has created hardships to an individual owner. By shifting the right of way we may be exasperating this. I think you have a very good point Steve that if they could come to an agreement with that corner, because if you think about it someone is giving up and gaining this right of way,but yet only giving up another piece. Steve Mackey - I think the best that we can do to provide relief to the property owner is to help him the best that we can not to diminish him and the only way I see is by the 13 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) corner clip to get his trucks in or out. We can't change all the conditions and make it perfect. The best we can do is (1) see how the fire guys do to get their trucks turned around and if all possible. Christopher Davey- Can we look at a rendering? Tom Mullin - Where the pavement hits the edge of the fence, we are giving him pavement right to edge of his fence that he has today. Access to his site with a 53'truck is still there today. What he does on his site is his own thing. The site was never made for semi; it was made for box trucks. We are giving him the same edge of pavement at his gate. Christopher Davey-As you yourself said an emergency vehicle is allowed to back down the right of way for 150'. Private vehicle is not allowed to back down at all. Tom Mullin - And that is what he is doing today, which is against the rules. He cannot back down public right of way. So he has been doing something for the past 30 years that is not allowed. We need to design a site that is code compliant. Christopher Davey - I understand that it needs to be code compliant, but what I am having problems with is that his ability to access his site. Tom Mullin - We have proposed a 40' radius that we can give as an access easement and we will pave it for him. He will have to adjust his fence, but that will get the trucks right on his site as he does today. Gerald Franciosa - He lost the road, he lost the access road to turn around the trucks. Once he lost that there is nothing he can do. Tom Mullin - What if there is a fire in the back of the warehouse and a truck has to pull into the property to put out a fire in the southern part of the building? How does the truck get back out? Gerald Franciosa - That would be for the Fire Marshall Christopher Davey - It is almost midnight, do we want to table this to next month, and encourage the parties to talk amongst themselves, and in time we will get answers from the Fire Marshall. Steve Mackey - I think we will never make this property fit 53' trucks and the best that they can do with the existing structure the way it is to give him a corner clip access to get him in front ways and however they get out is their problem. Christopher Davey- But we do not have a site plan or renderings before us tonight. We are urging you gentlemen to hear what we are saying here tonight and by that time we 14 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) will have the Fire Marshall back and we hear your concerns about getting to the back of the property,we hear what you offer to get around the property. John Gwynn - I have been trying for 6 months to meet with this gentleman to settle the problems. This problem is a red herring trust me. I am more than willing to give him that clip and in fact I was going to show him that clip after meeting with Mr. Kovner from the City and invited him and he did not show up. We will be here one month from today and we will be arguing about the same thing. He does not care about this. Christopher Davey- One month from today we will be here and make a decision. John Gwynn - You are delaying our project one more month, it has been delayed numerous times, and if you don't want this project done, delay it again. Gerald Franciosa - I am ready to make a motion. Christopher Davey - Well here is the problem; we don't have a plan before us with a corner clip. John Gwynn- Make it with a condition. Iam happy with that. Christopher Davey - Mr. Pfeffer, are you comfortable with us making a condition or on something that is not in front of us tonight. Noel Pfeffer-What is on my screen in front of me? Christopher Davey-That is a sketch Noel Pfeffer-Are you not comfortable approving this sketch? Christopher Davey- Iam not an engineer Noel Pfeffer - I have been laboring with this since July, and they are not going to resolve their differences. You can defer it for a month, but they are not going to come back in agreement. Steve Mackey- They can't come to an agreement, and then it is not our responsibility to accommodate 53' trucks in a building that is never going to accommodate it. We are just trying to do this in good faith and if it's not going to happen it's not going to happen. I have seen it all the time people knock down half of their warehouse just to accommodate 53'trucks. 15 Minutes of the April 20, 2015 PLANNING AND ZONING Meeting (Abandonment) Motion was made by Gerald Francisco and seconded by Steve Mackey for the approval of Abandonment request, by adopting the findings of fact and law contained in the staff report, and finding the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set for the in Section 2.4.6(M)(5) of the Land Development Regulations, subject to the following as related in the staff report 1-4 to include the following additional condition: S.Approval of the Fire Marshall 6. That the 40'radius be incorporated in the plan MOTION CARRIED 4-0 - Stepping down, Jay Jacobson&Mark Krall 16 PLANNING AND ZONING BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: April 20, 2015 ITEM: Depot Square Apartments —Abandonment of a portion (varies between 8.98 feet to 10.80 feet by 399.17 feet ) of a 30 foot wide right-of-way, known as NW 2nd Street and lying at the south terminus of Depot Avenue, between the CSX Railroad and 1-95 Ro GENERAL DATA: Agent............ ... Charles Putman ° Owner/Applicant................. Depot Industrial Center, LLC Location.................................. The subject property is located between the CSX Railroad and Interstate 95 rights-of-way, south of Lake Ida Right. Property Size.......................... 12.34 Acres Future Land Use Map............. CMR (Commerce) Z Current Zoning........................ MIC (Mixed Industrial and ' Commercial), and within the Interstate 951CSX Railroad Corridor Overlay District. nt Zoning g a a ......... North: MIC c South: MIC East: R-1-A (Single Family Residential) West: MIC I Existing Land Use................... Vacant Proposed Land Use............... Multiple Family Project Known as Depot Square Apartments to k Allow 284 Dwelling Units. r..r Water Service......................... Existing on site Sewer Service........................ Existing on site ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission on the proposed abandonment of a portion of the NW 2"d Street road right-of-way, generally located between Interstate 95 right-of-way to the east and CSX Railroad (Seaboard Coastline Railroad) to the west. This right-of-way abandonment is being processed pursuant to LDR Section 2.4.6(M), Abandonment of Rights-of-Way. BACKGROUND This portion of the NW 2nd Street road right-of-way was dedicated on the plat of the Model Land Company's Subdivision of the North Half of the South Half of Section 18 (Plat Book 6, Page 51) as surveyed by Geo.A.Long, 1915. The area to be abandoned measures approximately 10 feet wide by 399 feet long. On January 20, 2012, the plat for Historic Depot Square was recorded in Plat Book 114, Page 197- 199 of the Public Records of Palm Beach County, Florida which platted land adjacent on the north and south side of the 30' wide NW 2nd Street road right-of-way. Until recently, a scrivener's error was discovered in the legal description in a Transfer Agreement between the City of Delray Beach and Depot Industrial Center, LLC. The scrivener's error resulted in an approximate ten (10) foot north-south discrepancy in the position of the existing NW 2"d Street right-of-way. With the recordation the Historic Depot Square plat, Tract "B-1" platted over the northern 10 foot portion of NW 2nd Street right-of-way. This portion of right-of-way located within Tract "13-1" is the proposed abandonment area (Exhibit 3). In conjunction with this abandonment, land located north of Tract "A-1" of the plat of Historic Depot Square and south of the existing right-of-way for NW 2"d Street will be dedicated as right-of-way in order to maintain the total right-of-way width for NW 2nd Street to be 30 feet wide. The right-of-way dedication for NW 2nd Street measures approximately 15' wide by 240' long (Exhibit 4). ABANDONMENT ANALYSIS Pursuant to LDR Section 2.4.6(M)(1), public right-of-way may be abandoned (returned) to the fee description of adjacent property to the same degree in which it was originally obtained (i.e. property dedicated exclusively from a single parcel shall be returned to that parcel; property dedicated through subdivision shall be divided at the center line and returned equally to abutting parcels.) The proposed abandonment differs from a typical abandonment scenario where only a portion of road right-of-way will be abandoned and an equal portion of land in width will be dedicated as a replacement in order to maintain the existing right-of-way width for NW 2nd Street. The abandonment request, as explained by the applicant, is to correct a scrivener's error and to protect the vesting deed for the Historic Depot Square plat with respect to the adjoining properties and to conform to the existing roadways to the related Development Plans for this project. In lieu of making any changes on the Development Plan and/or the recorded Plat, the abandonment and replacement dedication is a simpler solution which will correct the scrivener's error and discrepancy in the Title for the property. Comments have not been received from Florida Public Utilities, AT&T, Comcast and FP&L; therefore, we do not know if there are utilities within the abandonment area or if they will they have any objection to the abandonment request. The abandonment proposal will not be forwarded to Planning and Zoning Board Meeting of April 20, 2015 Abandonment of a Portion of the NW 2nd Street Road Right-of-Way Page 2 City Commission for final action until all comments have been received with a statement of no objection to the abandonment request. REQUIRED FINDINGS Pursuant to LDR Section 2.4.6(M)(5), prior to any right-of-way abandonment being approved, the following findings must be made: A) That there is not, nor will there be a need for the use of the right-of-way for any public purpose. The unimproved road right-of-way does provide access to the adjacent properties; however, as previously mentioned, the abandonment area is only a portion of the NW 2nd Street right-of-way and an equal portion will be dedicated to maintain a total right-of-way width of 30 feet. Access will still be maintained through NW 2nd Street but shifted southerly by approximately 10 feet. Therefore, a positive finding can be made. B) That the abandonment does not, nor will not, prevent access to a lot of record. As stated above, the road right-of-way will be maintained at a total right-of-way width of 30 feet. Depot Warehouse, located on the east end of NW 2nd Street will continue to have access through NW 2nd Street as well as Tract A-1 and Tract B-1 of the plat of Historic Depot Square. Therefore, a positive finding can be made. C) That the abandonment will not result in detriment to the provision of access and/or utility services to adjacent properties or the general area. The existing road right-of-way for NW 2nd Street will be improved as part of the Historic Depot Square Apartment Development. The road right-of-way will provide access to Tract A-1 to the south, Tract B-1 to the north and Depot Warehouse to the east. With the recordation of the plat of Historic Depot Square, easements were dedicated to accommodate existing and future utilities for the proposed Historic Depot Square Apartment development. Since utility provider comments have not been received in association with the abandonment request at the time this report was written, it is uncertain as to whether the easements provided on the plat of Historic Depot Square will be sufficient without receipt of any utility provider comments; therefore, a positive finding can only be made subject to receipt of "no objection" responses from the utility companies. REVIEW BY OTHERS Courtesy Notices: Courtesy notices have been provided to the following groups and neighborhood associations: • Delray Citizen's Coalition Public Notice. Formal public notice has been provided to property owners within a 500' radius of the subject property and notice was published in a local newspaper on April 10, 2015. The Planning Department has received a letter requesting party status from Depot Warehouse which is the adjacent property owner to the east. Future letters of objection or support, if any, will be provided at the Planning and Zoning Board meeting. Planning and Zoning Board Meeting of April 20, 2015 Abandonment of a Portion of the NW 2nd Street Road Right-of-Way Page 3 ASSESSMENT The existing road right-of-way does and will continue to provide access to the adjacent properties. Easements have been dedicated on the plat of Historic Depot Square and additional land will be dedicated in conjunction with this abandonment request to maintain a total right-of-way width of 30 feet. Since utility provider comments have not been received at the time this report was written, a positive finding can only be made upon receipt of confirmation from the various utility companies. Therefore, a positive finding cannot be entirely made with respect to LDR Section 2.4.6(M)(5) and the request cannot be supported at this time until all comments from the utility providers have been received. ALTERNATIVE ACTIONS 1. Postpone the abandonment request. 2. Move a recommendation of approval of the request for the abandonment of a portion of the road right-of-way for NW 2nd Street generally located between Interstate 95 right-of-way to the east and CSX Railroad (Seaboard Coastline Railroad) to the west, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.6(M)(5) of the Land Development Regulations. 3. Move a recommendation of denial of the request for the abandonment of a portion of the road right-of-way for NW 2nd Street generally located between Interstate 95 right-of-way to the east and CSX Railroad (Seaboard Coastline Railroad) to the west, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is not consistent with the Comprehensive Plan and that the required findings of LDR Section 2.4.6(M)(5) cannot be made. RECOMMENDED ACTION Recommend approval of the abandonment request, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.6(M)(5) of the Land Development Regulations, subject to the follow conditions: 1) Submit civil plans clearly indicating location of proposed right-of-way abandonment and right-of-way dedication. 2) Submit civil plans indicating location of existing and proposed utilities in area to be abandoned and area to be dedicated. 3) Provide legend for any hatching used. 4) Submit civil plans indicating location of all water and sewer easements to be dedicated and existing ones to be abandoned. Please indicate when this process will initiate. This will need to be taken to City Commission for final approval and prior to issuance of Building permits. Planning and Zoning Board Meeting of April 20, 2015 Abandonment of a Portion of the NW 2nd Street Road Right-of-Way Page 4 5) Submit civil plans indicating location of new drainage easements and tracks to be dedicated. Please indicate when this process will initiate. A copy of the recorded deed(s) will be required prior to issuance of Building permits. 6) Submit civil plans indicating location of all FPL easements to be dedicated and existing ones to be abandoned. A copy of the recorded deed will be required prior to issuance of Building permits. Attachments; Location Map Aerial Photo Sketch and Legal Description of Abandonment Area (Exhibit 3) Sketch and Legal Description of Dedication Area (Exhibit 4) Survey Exhibit 2A(shows both the abandonment and the dedication) Model Land Company's Subdivision of the North Half and Part of the South Half of Section 18 Historic Depot Square Plat Letter from Thomas F, Mullen dated April 14, 2015 Letter from Richard A. 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Nason,Yeager, Gerson, White &Lioce,P.A. 7700 Congress Avenue Suite 2201 Boca Raton,Florida 33487 RE: HISTORIC DEPOT SQUARE/DEPOT WAREHOUSE,LLC Dear Mr,Mullin: We believe that your letter of April 2,2015 to Noel M.Pfeffer,Esq.,Delray Beach City Attorney requires a response and clarification of the comments and statements offered by you in opposition to our cl'ient's development project. First, and most important, your client has been, fully aware of our client's project and the development of the property surrounding your client's land, including the relocation of Depot Ave.,since 2007,and to infer otherwise is factually untrue. Our client initiated a meeting with Mr. Gwynn in 2007 to explain the relocation of Depot Avenue and the configuration of the project as planned at that time. Initially, the project consisted of 300 planned apartment units and 90,000 square feet of office space, which was a substantially more intense project than the project approved today. The intensity of the approved project has been substantially reduced from the earlier planned project. Subsequent to the initial meeting,Tom Head.,Jr., son of Tom Head,again met with Mr. Gwynn to update him on the project. The relocation of Depot Avenue has remained a constant since the commencement of the original project planning beginning in 2006. In addition, Mr. Gwynn attended at least one(1)public hearing during the 2007-2008 time period and did speak at that public hearing, At that time,Mr. Gwynn again met with Tom Head,Jr- I reiterate that Mr. Gwynn has known of the project and the relocation of Depot Ave. for over 7 years, The Depot Warehouse LLC property was one (1) of four(4)parcels that Mr. Head and his group had attempted to assemble for a development project. Mr. Head was able to purchase three(3) of the four(4)parcels. In June 2009,Mr. Gwynn was presented with a letter of intent ("LOI") on behalf of Depot Industrial Center, LLC to purchase the Depot Warehouse, LLC property owned by Mr. Gwynn, The L01 included a purchase price in excess of One Million Thomas F. Mullin, Esq. April 14, 2015 Page 2 Dollars ($1,000,000.00).Mr. Gwynn rejected the offer and countered with a purchase price of Two Million Dollars ($2,000,000.00)which was, of course,not acceptable. He refused to sell his property for a fair price with full knowledge that a project was approved and Depot Ave.was planned to be relocated. Your letter of April 2,2015 states the following`general objections and concerns: 1) The Long-Term Commercial Viability of the Warehouse Property is in Jeopardy This allegation is without merit. Your client's complaint is that the design of the relocated Depot Ave. will not accommodate large 18 wheel tractor-trailer trucks. Our client, the developer, has had his engineer sketch several modifications to the relocated Depot Ave. that demonstrate how large 18 wheel tractor-trailer trucks can be accommodated. The sketches were sent to Mr. Gwynn and on February 24, our engineer, Mark Smiley, met Mr. Gwynn on the Depot Warehouse property to further explain how this all could be accomplished. The real problem that Mr. Gwynn has is not that the large trucks will not be able to get to his property but rather there always has been a problem with legal ingress/egress to and from his property. For this reason, Mr. Gwynn has chosen, on the rare occasion when a large truck delivers to his building,to unload the trucks while they park on NW 2nd Ave. or drive the trucks onto his property while his tenants park on the adjacent property owned by our client, Depot Industrial Center. Mr. Gwynn's property as improved is fundamentally too small to accommodate large tractor-trailer trucks. The Delray Beach City Engineer, Mr. Isaac Kovner, offered in an email dated March 26, 2015, to meet Mr. Gwynn on his site so that Mr. Gwynn could demonstrate ingress/egress for large trucks. So far, Mr. Gwynn has failed to meet for such a demonstration. Our client has agreed to make the modifications to Depot Ave., if required,that would allow the large trucks to access the Depot Warehouse property, but Mr. Gwynn's lack of cooperation and initiative to resolve his a[leged problems only serve to make the problems more difficult,if not impossible,to resolve. 2) The City and Developer Have Disregarded Access to the Warehouse Property This allegation is without merit. Please see the above response 41. To the best of our knowledge, Depot Warehouse LLC was properly noticed by the City of Delray Beach for all hearings when notice to adjacent property owners is legally required. Even though, a developer of property is not legally required to provide separate notices to adjacent property beyond the required notices given by the applicable governmental entity,our client has made Mr. Gwynn completely aware of its intention to relocate Depot Avenue from the inception of the planning for the project. Once again,we have provided a site plan indicating how tractor-trailer trucks can access the Depot Warehouse property from NW 21d Ave. The contemplated abandonment of Right of Way Thomas F. Mullin,Esq. April 14,2015 Page 3 does not change the location of the existing paved area for NW 211 Ave. and will not hinder access to Depot Warehouse. Every day and in every city, full size trucks travel through residential areas. The trucking industry is one of the mainstays of our economy, and for you to make safety-concerned allegations of trucks in residential neighborhoods is illogical and a sham.. The relocated access to the Depot Warehouse site, the traffic patterns, together with the entire project has been recommended and approved by experts engaged by the City and the developer. Again,Mr. Gwynn had notice and was fully aware for the past seven(7)plus years that Depot Avenue was being relocated. He chose to stand by silently and do nothing. 3) Abandonment of NW 21a Street.Right-of-Way is improper The abandonment of Northwest 2nd Street in the manner undertaken is legal and proper,and complies with all applicable codes and regulations. Please recall that you and your client challenged the earlier abandonment of the easement, and stated that the proper procedure was to follow the regulations for the abandonment of a right of way. In both instances,you and your client have refused to cooperate in any manner whatsoever. The abandonment of this roadway/easement and the Depot Square project clearly enhances your client's property by removing an encumbrance on the title and increases the value of the Depot Warehouse property by improving the surrounding roadways and adding landscaping, irrigation, lighting, together with the improved access as demonstrated on the attached proposed site pian for the Depot Warehouse property prepared by our consultant for your files. A close examination of the platted easement from the 1916 Model Land Company Plat that was originally to be abandoned will show that your client has unilaterally enclosed a portion of the "right of way" attempting to absorb it on to its property. If you have followed the process of the correction of the legal description scrivener's error, the abandonment of a portion of Northwest 2nd Street was combined with the dedication by the developer of a portion of Northwest 2" Street, which was not included in the dedication of the Plat. The current paved roadway remains as currently located without interruption of access to the Depot Warehouse site. The abandonment and dedication as above described results in a 30' Right-of-Way not 20' as you allege in your letter. 4) The City approved the Plat and Site Plan Over Portions of the Warehouse Property As the result of an inadvertent error on the Plat of Historic Depot Square, recorded in Plat Book 114,Pages 197-- 199, of the public Records of Palm Beach County, Florida(the"Plat"), there was an unintentional encroachment of the Plat of approximately forty(40) square feet on to the Depot Warehouse.LLC property(the"Plat Error"). Upon learning of the Plat Error,Mr. Head again met with Mr. Gwynn in October 2014 in an attempt to resolve the Plat Error, and offered to swap approximately 1,000 square feet of the adjacent Depot Industrial land for the 40 square feet of Depot Warehouse encroached-upon land. The offer was rejected, and Thomas F.Mullin, Esq. April 14, 2015 Page 4 subsequently you were engaged as counsel, The Plat Error has subsequently been corrected by the recording of Surveyor's Affidavit Confirming Error on a Recorded Plat,recorded March 26, 2015 in Official Record Book 27423, Page 243 of the Public Records of Palm Beach County, Florida, a copy of which is attached hereto. The allegations of the"overplat" have been resolved by the Affidavit attached to this letter as above staffed, Further, Avirom & Associates. Inc, has met with Renner, Burgess who prepared the 2002 survey for your client's property to discuss the basis of the Renner/Burgess survey and to coordinate accurate legal descriptions with the Avirom survey. There is no cloud on the Denot Warehouse title. Notwithstanding your protestations to the contrary, since 2007 Depot Warehouse LLC and Mr. Gwynn have had every opportunity to comment on the project at public hearings and to meet with City of Delray Beach officials. If there is a "victim" in this process, it is Depot Industrial Center, which has been unnecessarily and intentionally delayed by the threats and interference of Depot Warehouse and Mr. Gwynn, The City of Delray Beach has carefully and reasonably reviewed and approved the entire project during the course of the past seven(7)plus years. Depot Warehouse has no greater rights than any other adjacent land owner in the City to require changes to a development project. Your request for special considerations is not realistic and is quite unreasonable. In summary, you have shown no flaws in the design of the project or the development approval process. Over the past seven (7) years, Mr. Gwynn has had every opportunity and been given every consideration to view the project and to comment on it, and, other than the . belated attempts since October 2014, has failed to do so, Your correspondence directed to the City of Delray Beach has failed to specify any alleged flaws in the design of the project, which has been approved by the City of Delray Beach, and has not shown any defects in the development approval process. Your threats of litigation are not taken lightly, however,unless you have substantive facts and a legal basis for your action, please be advised that we will continue to move forward to develop our project as approved. MURD,P,C TIRES &NEUMAN,PLLC s Richard A. Murdoch,Esq. RAMIj s cc: Cary Glickstein;Esq. Mitch Katz Shelly Petrolia Scott Pape Jordana Jarjura,Esq. Depot Industrial Center, LLC Al Jacquet, Esq. Isaac Kovner Nason.-Yeamr_ _ ---- GERSON WF11TE& LIOCE, t'A. - Ak i(112zICY—, h_T [A011 Founded 1960 7700 CONGRESS AVENUE SUITE 2201 BOCA RATAN,FLORIDA 33487 THOMAS F.MULLIN www.nasonyeager,com OFFICE; (561)482-7114 FAX NUNDER: E-MAIL ADDRESS: (561)982-7116 to n u I I i nQ na s o nyeage r,c a m April 14, 2015 VIA EMAIL: mcdonnell@mydelrayb each,com. Mark McDonnell Planning and Zoning Department City of Delray Beach 100 NW lit Avenue Delray Beach,Florida 33444 Re; Depot Square Apartments Abandonment of NW 2nd Street Right-of-Way Dear Mr, McDonnell: As you are aware, we represent Depot Warehouse, LLC ("Depot Warehouse"), owner of the real property located at 1700 Depot Avenue (the "Warehouse Property"). On April 20, 2015, the City of Delray Beach (the "City") Planning and Zoning Board (the `Board") will consider a request from Depot Industrial Center, LLC ("Depot Industrial") to abandon a portion of NW 2nd Street. As an adjacent property owner, please accept this letter as Depot Warehouse's objection to the abandonment of NW 2nd Street. Please incorporate this letter as part of the record submitted to the Board for its consideration. BACKGROUND In 2011/2012, the City, at the request of Depot Industrial, abandoned a portion of NW 211 Street right-of-way created on or about December 4, 1981 by the Mack Industries plat(Plat Book 43,Page 138). This abandonment allowed Depot Industrial to dedicate new right-of-way for NW 2nd Street in the Historic Depot Square plat it prepared and recorded on or about January 20, 2012 (Plat Book 114,Page 197). The alignment of NW 2"d Street on the site plan for the Historic Depot Square apartment project is consistent with the Historic Depot Square plat. On or about March 16, 2015, Depot Industrial submitted an application to abandon a 10' strip of the right-of way for NW 2'd Street, and simultaneously dedicate a new 30' right-of-way 7700 Congress Avenue I Suite 2201 1 Boca Raton,Florida 33487 Telephane{561)982-7114 } Facsimlic(561)982-7116 1 www.nas0nyeaSC1,C0m WEST PALM BEACH . BOCA RATON Mark McDonnell April 14, 2015 Page 2 for NW 2nd Street to the City (the "Application").' The Application justifies the need for the abandomnent and dedication based on a "scrivener's error" that created a "10' north-south discrepancy". As a result of this proposed "fix", Depot Industrial claims that NW 2"d Street will "continue to serve as the access road for all abutting parcels in the same manner that is [sic] does now." As will be described in more detail below, Depot Industrial has made material misrepresentations in the Application, and fails to meet the requirements of the City's Land Development Regulations ("LDRs"). Depot Warehouse strongly opposes the abandonment of NW TO Street for the following reasons: 1) The abandonment does not correct a scrivener's error, and fails to address the access and platting issues on the Warehouse Property; 2) The abandonment does not meet the required Findings of Section 2.4.6(M)(5) of the City's LDRs necessary for approval of an abandonment; and 3) The abandonment will leave a 20' right-of-way that does not meet the City's mandatory road width requirements creating both access and safety issues. Individually, and collectively,these issues warrant the Board denying the abandonment of NW 2"8 Street. ANALYSIS. 1) The Proposed Abandonment Does Not Correct a Scrivener's Error, and Fails to Address the Access and Platting Issues on the Warehouse Property Depot Industrial is misrepresenting the basis for its request for abandonment of the right- of-way, as there was no "scrivener's error". It appears that Depot Industrial failed to discover that a 1913 Model Land Company plat(Plat Book 5,Page 51) also created a right-of-way for NW 2"d Street that is aligned with the 1981 plat previously abandoned. As the right-of-way from 1913 is inconsistent with the current site plan, the Application must abandon the 1913 right-of-way to certify the site plan. Missing a prior platted right-of-way is not a scrivener's error, and to refer to it as such is disingenuous. Importantly, the Depot Industrial fix does not address a more significant error, that the Historic Depot Square plat included a portion of the Warehouse Property without Depot Warehouse's consent.This overplat is a cloud on the Warehouse Property title. There is a dispute as to the amount of the overplat, as shown in the survey provided by Depot Industrial (Exhibit "A"), and a survey prepared by Depot Warehouse's surveyor (Exhibit "B"). These title and platting issues must be resolved, and should be addressed through a replat. The Board should deny 1. Depot Industrial first attempted to abandon NW 2"Street as a"utility easement",which would not have required approval from the Board. It was only after Depot Warehouse pointed out this was improper did Depot Industrial submit an application to abandon a right-of-way. Marls McDonnell April 14, 201 S Page 3 the Application and request that Depot Industrial come back with a global fix to address all of the platting and right-of�-way issues, 2) The Abandonment Does Not Nfeet the Required Findings of Section 2,4,6(M)(5) of the City's LDRs Necessary for Approval of an Abandonment As a matter of law,the Board must base its decision on whether to recommend approval of the proposed right-of-way abandonment on whether the Application meets the requirements of Section 2.4.6(M)(5) of the City's LDRs. Simply put,the Application does not. Specially,Section 2.4.6(M)(5)of the LDRs require Depot Industrial to prove; (1)that there is not, nor will there be,a need for the use of the right-of-way for any public purpose, and(2)that the abandonment will not result in detriment to the provision of access and/or utility services to adjacent properties or the general area. As set forth below, the Application fails to meet the requirements of Section 2,4.6(M)(5) of the LDRs, and the Board should recommend denial of the Application. A. The existing right-oC wav seryes.aubn lic purpose. and will continueto do so NW 2nd Street currently serves a public purpose that will be adversely impacted by the proposed abandonment. NW 2 d Street provides access to the Warehouse Property and to the City- owned train depot to the southwest. Also,tenants,customers,and other invitees of the Warehouse Property utilize NW 2id Street. Some of these groups utilize large commercial trucks for deliveries and transportation of goods. This use by the City and invitees of the Warehouse Property qualify as a public use. The developer simply cannot meet the requirement that the existing right-of-way no longer serve a public purpose,as required by Section 2.4.6(M)(5)(a). B. The abandonment will result in a detriment to the provision of access and utility services to the Warehouse PropertX If for no other reason, the Board should deny the Application because it will result in a detriment to the provision of access and utility services to the Warehouse Property. Section 2.4.6(M)(5)(c)of the LDRs expressly prohibits abandoning a right-of-way that will impact access. As has been documented by the developer's engineer(Exhibit"C"),large commercial trucks and 18-wheel trucks will no longer be able to access the Warehouse Property. These trucks currently are able to back into the Warehouse Property from Depot Avenue for loading and.unloading to the industrial bays. Thereafter, the trucks are able to drive straight to Depot Avenue. With the continuous degrading of access to the Warehouse Property, no truck would be able to back-in to the Warehouse Property. Trucks would then have to back out of the Warehouse Property without an area to turn around. This would effectively prevent all access to and from the Warehouse Property by large commercial and 18-wheel trucks. This is a significant detriment to the provision of access to the Warehouse Property, and a clear violation of Section 2.4.6(M)(5)(c) of the LDRs. Mark McDonnell April 14, 2015 Page 4 In addition to access, services, such as fire and garbage, will be adversely impacted by the abandomnent of NW 2" Street. In general, fire trucks do not back out of streets. For this reason, Section 6.1.2(C)(3)(c)of the LDRs prohibits dead-end streets without provision of turnaround,and requires a cul-de-sac to be provided.No cul-de-sac is provided for the dead-end of NW 2'd Street. Further, Section 6.1.4(B)(1) of the LDRs requires points of access to be designed to be convenient for servicing and fire protection, With the current design, it would be difficult, if not impossible, for a fire truck responding to an emergency on the Warehouse Property to exit the property. This presents a public health and safety welfare issue that is worsened by the proposed abandonment. Similarly, access by garbage trucks will be impacted. Garbage trucks back out of the Warehouse Property and would be unable to do so with the proposed abandonment. Therefore,it is clear that access to the Warehouse Property will continue to be degraded by the proposed abandonment. In sum, the Application simply does not meet Section 2.4.6(M)(5)(a) and (c) of the LDRs and should be denied, 3) The Proposed Abandonment Will Dave a 20' Right-4f-Wav Does Not Meet the City's Mandatory Width Requirements Finally, it is notable that Depot Industrial is abandoning only a 10' portion of the NW 2'd Street right-of-way. By limiting the abandonment to 10',Depot Industrial is not required to obtain consent Depot Warehouse. This is consistent with past practice where the Depot Square project was approved without any knowledge or consent from Depot Warehouse. Depot Industrial should be granting additional right-of-way, not less. Leaving a 20' strip of right-of-way provides no meaningful access, and does not improve access to the Warehouse Property made worse by the prior abandonments, Depot Warehouse believes that additional right-of-way is-the only means to preserve access to the Warehouse Property. Section 5.3.1(D)(2)of the City's LDRs require minimum right-of-way dimension of 60' in width for local commercial and industrial streets. (Exhibit"D"). Section 6.1.2(C)(2)(c)requires a minimum paving width of 22' for local roads. As a new development, the Depot Square project must be brought into compliance with the current LDRs for right-of way and paving width. The Application proposed to create right-of-way that patently violates the design standards of Section 53.1(D)(2)of the LDRs. Section 5.3.1(D)(4)provides that additional right-of-way width may be required to promote public safety and welfare,and to assure adequate access and circulation. ,Section 5.3.1(B)(2)of the LDRs requires proposed streets to be extended to provide access to adjoining properties. The Application fails to provide the necessary right-of-way. In this situation, additional width of right- of-way is warranted. Yet, the Application proposes to reduce right-of-way, to the detriment of access to the Warehouse Property. The Board should require additional right-of-way. Mark McDonnell April 14, 2015 Page 5 Section 5.3.1(D)(5) of the LDRs allows for more narrow rights-of-way, but only upon an express showing by the applicant. The applicant did not, and cannot, show how a full dedication of 60' of right-of-way will create a hardship, and cannot show how the more narrow right-of-way will not endanger the public safety and welfare as required by Section 5.3.1(D)(5). In sum, there are serious concerns with the Application and its failure to comply with the City's LDRs. These concerns involve both access and safety issues, of which the City is charged with protecting. For this reason,the Board should recommend denial of the Application until such time as the applicant can address these significant access and safety issues. Sincerely L nomas F. Mullin cc: John Gwynn Alan Armour, Esq. 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(6„ THICK AT DRIVEWAY 6” STABILIZED AT DRIVEWAY & INTERSECTIONS) SHOULDER & INTERSECTIONS) (50 P.S.I. F.B.V.) PAVEMENT SPECIFICATIONS WEARING SURFACE 1 1/2" TYPE S—III (2 LIFTS) SEE NOTE 2 8" LIMEROCK OR 10" CRUSHED CONCRETE COM— BASE PACTED TO' 98% MAX. DENSITY PER AASHTO T-180. PRIME & TACK COAT PER FDOT SECTION 300. 12" STABILIZED (75 P.S.I. FBV) AND SUBGRADE COMPACTED TO 98% MAX. DENSITY PER AASHTO T-180. NOTE: 1. VARIATION FROM MATERIAL SPECIFICATIONS WILL BE CONSIDERED ON A CASE BY CASE BASIS BY THE CITY ENGINEER. 2. 2ND LIFT SHALL NOT TO BE PAVED UNTIL CONSTRUCTION VEHICLES AND EQUIPMENT HAVE COMPLETED WORK. EXHIBIT " D " CITY of DELRAY BEACH DATE:01--12--2006 ENVIRONMENTAL SERVICES DEPARTMENT TYPICAL 60' R/W SECTION RT 1 .2 434 SM7119WINTON AVENUE,DEU:MY BEACH,FLORIDA 93444 Naso�GERSON WHITEIOCE, T?A. I c7 it t,F YS ?1 I:'�l, I Founded 1960 7700 CONGRESS AVENUE SUITE 2201 BOCA RATON,FLORIDA 33487 THOMAS F.MULLIN www.nnsonyeager.corn OFFICE: (561)982-7114 FAX NUMBER., E-MAIL ADDREW (561)982-7116 tlnulli n@nnsonyeager.aom April 2,2015 Via Email: feffer m delra beach.com Noel M. Pfeffer,Esq. City Attorney City of Delray Beach 200 N.W. 1"Avenue Delray Beach, FL 33444 Re: Historic Depot Square Apartment Project Dear Mr. Pfeffer: As you are aware,this Firm represents Depot Warehouse,LLC,the owner of real property located at 1700 Depot Avenue, Delray Beach, Florida (the "Warehouse Property") since 2002. Depot Warehouse operates a light industrial warehouse consisting of multiple industrial bays and offices. Notably, our client's ownership of the Warehouse Property pre-dates ownership by the developer of the Historic Depot Square apartment project(the"Project"), Depot Warehouse is a forgotten victim of the Project. Depot Warehouse's ongoing business will be greatly impacted by the Project as proposed. Surrounded on three sides by the Project, it only seems proper for the Warehouse Property owner to be contacted to determine its position on the Project. Unfortunately, this did not occur, as Depot Warehouse did not receive direct notice of, and was not consulted on,the various approvals that have been granted by the City for the Project. Only once Depot Warehouse was contacted by the developer to fix a"scrivener's error"in the plat, did we discover the significant approvals that have occurred. Shortly thereafter, we provided the City with our general comments and objections to the Project. Despite being told that the City would look into our concerns,we have not received a response from the City,After taking the time to review the Project, there is little indication that the developer and City have taken into consideration the existing rights and historic use of the Warehouse Property.Rather,we have seen deliberate actions by the developer to isolate Depot Warehouse, thereby affecting the long-term 7700 Congress Avenue i Sulte 2201 1 Boca Raton,Florida 33487 Telephone(561'982-7114 1 Facsimile X561)781-7116 1 wwtv.nasonyeager.com WEST PALN113EACH • BOCA RATON Noel Pfeffer, Esq, City Attorney April 2, 2015 Page 2 commercial viability of the Warehouse Property. We believe, now that the latest actions by the developer are intended to prevent Depot Warehouse from protecting its property rights. The following is a summary of Depot Warehouse's general objections and concerns; 1) The Long-Term Commercial Viability of the Warehouse Property is in Jeopardy From our perspective, the developer's and City's efforts appear to have one conclusion—the failure of Depot Warehouse's business. Previously, Depot Warehouse stated its concern that existing and prospective tenants, and their delivery services, would be discouraged from conducting their business on the Warehouse Property. This has now occurred. A prospective tenant of 3,000 sq-ft requested daily delivery of bread by 18-wheeler each morning at 5;30 a.m, While that can be provided currently, Depot Warehouse disclosed the proposed changes to Depot Avenue and NW 2nd Street. Based on the access limitations caused by the Project, the proposed tenant declined to rent space on the Warehouse Property. Depot Warehouse fears that there will be other examples of prospective tenants, as well as existing tenants, declining to rent at the Warehouse Property due to the impacts caused by the Project. The City has a duty to protect existing small businesses, rather than catering to the whims of developers. Yet,there has been no indication that the City intends to do so. 2) The City and Developer Have Disregarded Access to the Warehouse Property Reviewing the plat and site plan approved for the Project, it is clear that there has been a total disregard for the historic use and access to the Warehouse Property. Depot Warehouse has been conducting its business on the Warehouse Property since 2002. The tenants of the Warehouse Property rely on the long-term access of 18-wheel and other large trucks to conduct their businesses. Without it,their businesses will fail. The planning and design process of the Project does not appear to have factored in access to the Warehouse Property. The site plan assumes that full size trucks will be traveling through a dense residential development, making impossible sharp turns, all while avoiding pedestrians and other vehicles, The developer prepared turning radius drawings that prove how egregious and dangerous the conditions will be for trucks attempting to access the Warehouse Property. This was pointed out by letter to legal counsel of the developer,with copy to the City attorney, on February 18, 2015. Despite being promised that access would be addressed,the developer has not provided any site plan revisions to Depot Warehouse that address access. It is incumbent on the City to ensure that the developer provides equivalent access to the Warehouse Property. Importantly,Depot Avenue,the single access route to the Warehouse Property,was abandoned without the consent of Depot Warehouse.At the time it was abandoned,Depot Warehouse was the only user of Depot Avenue. No other property in the area actively used Depot Avenue. Noel Pfeffer, Esq. City Attorney April 2,2015 Page 3 Approval from the only user of the roadway would have been appropriate, but was not obtained. From the first meeting with City staff, Depot Warehouse has pled with the City to recognize the access issues to the Warehouse Property. We are still waiting on a response from the City as to the issues raised in letters and meetings with City staff as to these significai-it access issues. 3) Abandonment of NW 2"d Street Right-of-Way is Improper The developer previously attempted to abandon NW 2"d Street as a utility easement. Depot Warehouse pointed out to the City that this was improper, After the City agreed that NW 2"d Street was not a utility easement, the developer submitted an application to abandon NW 2"d Street as a right-of-way. The abandonment will be heard before Planning &Zoning Board on April 201h. The abandonment does not meet the required Findings of Section 2.4.6(M)(5)(c) of the City's Land Development Regulations. The proposed abandonment is a detriment to, and completely ignores, Depot Warehouse's access from NW 2"d Street. The developer proposes to abandon a 10' wide strip of NW 2"d Street, leaving 20' of right-of- way. A 20' strip of right-of-way is virtually useless, and creates an obsolete right-of-way that does not meet City engineering standards. By only abandoning a portion of the existing right- of-way, it appears that this is a deliberate attempt to preclude Depot Warehouse's involvement in the process. 4) The City Approved the Plat and Site Plan Over Portions of the Warehouse Property As the developer has recognized, the City approved the Historic Depot Plat (PB 1141P 197) over a portion of the Warehouse Property without Depot Warehouse's consent. Based on recent information from our surveyor, we believe that the "overplat" is larger than indicated by the developer. Please see letter and attached survey describing the disputed overplat area, attached as Exhibit "A". This is a significant concern of Depot Warehouse, and represents a cloud on its title, The City approved the Depot Square site plan over areas containing existing infrastructure utilized by the Warehouse Property. There has been asphalt and a security fence on the western side of the Warehouse Property for over 20 years. Yet, the City-approved site plan shows curbing, landscape buffer, and side setback directly over the asphalt and security fence. It appears that the developer intends to destroy Depot Warehouse's property. The City should ensure that this does not happen. During meetings and correspondence with the City, Depot Warehouse identified numerous problems with the plat, site plan and right-of-way issues. A site plan redesign and replat is the only solution. It does not appear that the City is actively doing anything to correct the issues. The"band-aid" fixes proposed by the developer are wholly inadequate. Noel Pfeffer,Esq. City Attorney April 2, 2015 Page 4 In light of the obvious flaws inthe design and development approval process related to the Project, we respectfully request that all development approvals for the Project be put on hold until these issues are resolved. Failing to do so, Depot Warehouse may be left with no other option but to seep redress in court. Thank you for your attention to this matter, Sincerely, Tho as F. Mullin TFMlklc cc, John Gwynn Alan Armour, Esq. Cary Glickstein, Esq. Shelly Petrolia Jordana Jarjura, Esq. Adam Frankel,Esq. Al Jacquet,Esq. Mitch Katz Francine Raniaglia Scott Pape Rick Murdoch,Esq. ZACI.IENT Docs\Gwynn,)ohn\Corr\Ur-N Pfeffer re Impacts of Project.docx/kIc r� Rennet Bud est Inc. (561) 243-4524 _ 7 � t Fax X551) 243-4869 1 S.E.4th Ave., Suite 20�, Delray Beach, FL 33483 E-mail: hburgess@gate.net To:John GWYNN March 24, 2015 R- Depot Avenue John after a visit in the field on February 19, 2015 at the site located at 1700 depot Avenue our job number 6-02-022 survey dated June 5,2002 we have located a plat line near our west line of said site that plat being the easterly line of tract "A" of the plat of Historic Depot Square and find said line to be overlapping on our west line by 1.6 feet on the north end and 2.9 feet atthe south end our revised survey shows said overlap and also shows the old 30 foot right-of—way As recorded in plat book 6 page 51 located near the north line of our site said south line of right-of-way being 16,4 feet south of our south line and continuing west past our west line if you have any further questions regarding this survey please don't hesitate to call a Burg s EXHIBIT "A" LLI uj > �� a w � p ? 3 > Lei! C3 z� Rei o _ r — ' ey A5'E4I M.zS,LT 68 N — TTT { I . : Vii•' . . I� &�� ME r r € d emu= I I �•� Z I. I Q 1 q� 2 3h fl MN o I vwo"n �Ln fy r € 1 z �o I W � lri � W n`P h lye Wr Olin L4 � xg eye � r �,.. a r �t� }Y, a al jit"',47 ig gag FL H,i mUl ��odx T VK asu-tea .:Twa A \1 : gg. Tqn 1/IlaSt�tki7l{�iOf1bAve ffi NUVw1�5t{7 00. LL o: .r ,,_.,� ,. - 1 r, W a r p LLI '3t �ePo a 'Pb, .or Saps L Y OIL �ry Y � � DEPOT WAREHOUSE LLC. 901 GEORGE BUSH BLVD. DELRAY BEACH FL.33483 May 29, 2015 Division Chief Michael Rodriguez City of Delray Beach Fire-Rescue Department 501 West Atlantic Avenue Delray Beach, FL 33444 Re: Historic Depot Square Fire Access Chief Rodriguez: This letter follows multiple meetings and phone calls I have had with the City of Delray Beach Fire-Rescue Department concerning the Historic Depot Square apartment project. By way of letter on April 16, 2015, I expressed by deep concerns over whether fire trucks would be able to access my property based on the current site plan for the project. I noted that Section 6.1.2 of the City's land development regulations prohibit dead-ends, and requires cul-de-sacs at the end of roads to allow for turnaround of fire rescue trucks. Recently, I was provided a copy of a redesigned site plan that alleges to fix the fire access issue, referred to as a "hammerhead". The hammerhead was designed to increase the radius of curbs to allow fire trucks to make three-point turns. Unfortunately, the developer, Depot Industrial, is proposing to utilize a portion of my property to satisfy his requirements to provide fire access. I do not consent to the use of my property for fire access. To require fire access for an adjacent development to be provided on my property is an unconstitutional taking, without compensation. Currently, access to my property is wholly contained on public right-of-way. It should continue to be provided on public right-of-way, without having to encumber my property. To restrict the use of my property will prevent the future development of my property, thereby diminishing its value. That is a partial taking of my property. I simply cannot accept this as a solution to my access issues. I have engaged an engineer with Kimley-Horn to review the project on this issue. In the engineer's opinion, there are numerous ways that fire access can be provided without the use of my property. The developer should be required to further modify the design of his project to ensure continued access to my property. Thank you for your attention to this matter. Sincerely, John D. Gwynn Manager r 'J NasonYpgerGERSON WHITE&LIOC , I Founded 1960 7700 CONGRESS AVENUE SUITE 2201 BOCA RATON,FLORIDA 33487 THOMAS F.MULLIN www.nasonyeager.com OFFICE: (561)982-7114 FAX NUMBER: E-MAIL ADDRESS: (561)982-7116 t In u l l i n@ n a s o n y e a ge r,c om June 1, 2015 VIA EMAIL: Pape@mydelraybeach.com Scott Pape Planning and Zoning Department City of Delray Beach 100 NW 1St Avenue Delray Beach, Florida 33444 Re: Depot Square Apartments Abandonment of NW 2nd Street Right-of-Way Dear Mr. Pape: As you are aware, we represent Depot Warehouse, LLC ("Depot Warehouse"), owner of the real property located at 1700 Depot Avenue (the "Warehouse Property"). On June 2, 2015, the City of Delray Beach (the "City") City Commission (the "Commission") will consider a request from Depot Industrial Center, LLC ("Depot Industrial") to abandon a portion of NW 2nd Street. As an adjacent property owner, please accept this letter as Depot Warehouse's objection to the abandonment of NW 2nd Street. Please incorporate this letter as part of the record submitted to the Commission for its consideration. BACKGROUND In 2011/2012, the City, at the request of Depot Industrial, abandoned a portion of NW 2nd Street right-of-way created on or about December 4, 1981 by the Mack Industries plat(Plat Book 43, Page 138). This abandonment allowed Depot Industrial to dedicate new right-of-way for NW 2nd Street in the Historic Depot Square plat it prepared and recorded on or about January 20, 2012 (Plat Book 114,Page 197). The alignment of NW 2nd Street on the site plan for the Historic Depot Square apartment project is consistent with the Historic Depot Square plat. On or about March 16, 2015, Depot Industrial submitted an application to abandon a 10' strip of the right-of-way for NW 2nd Street, and simultaneously dedicate a new 30' right-of-way 7700 Congress Avenue I Suite 2201 1 Boca Raton,Florida 33487 Telephone(561)982-7114 V Facsimile(561)982-7116 1 www.Furaa;(ai,ycaper.com VVIF,S i 1PAII.M II`31[F C:lf 11 • III1:1G.A IRA] rq Scott Pape June 1, 2015 Page 2 for NW 2"d Street to the City (the "Application").' The Application justifies the need for the abandonment and dedication based on a "scrivener's error" that created a "10' north-south discrepancy". As a result of this proposed "fix", Depot Industrial claims that NW 2nd Street will "continue to serve as the access road for all abutting parcels in the same manner that is [sic] does now." Depot Industrial is misrepresenting the basis for its request for abandonment of the right- of-way, as there was no "scrivener's error". Depot Industrial failed to discover that a 1913 Model Land Company plat (Plat Book 5, Page 51) also created a right-of-way for NW 2"d Street that is aligned with the 1981 plat previously abandoned. As the right-of-way from 1913 conflicts with the current site plan,the Applicant must have the 1913 right-of-way abandoned in order to achieve certification of the site plan. Missing a prior platted right-of-way is not a scrivener's error, and to refer to it as such is disingenuous. Depot Warehouse strongly opposes the abandonment of NW 2"d Street. As will be described in more detail below, Depot Industrial has made material misrepresentations in the Application, and fails to meet the requirements of the City's Land Development Regulations ("LDRs"). Depot Warehouse opposes the abandonment of NW 2"d Street for the following reasons: 1) The Applicant's proposed hammerhead at the terminus of NW 2nd Street encroaches on the Warehouse Property, to which Depot Warehouse objects, and does not address the access issues to the Warehouse Property; 2) The abandonment does not meet the required Findings of Section 2.4.6(M)(5) of the City's LDRs necessary for approval of an abandonment; and 3) The abandonment will leave a 20' right-of-way that does not meet the City's mandatory road width requirements creating both access and safety issues. Individually, and collectively, these issues warrant the Commission denying the abandonment of NW 2nd Street. ANALYSIS 1) The Proposed Abandonment "ails to Address the Access Issues to the Warehou e Property Importantly, the Depot Industrial fix does not address a significant error, that the Historic Depot Square project adversely impacts access to the Warehouse Property. Depot Industrial proposed a redesign of the Depot Square site plan that purports to address access to the Warehouse Property. However, it does not. Referred to as a "hammerhead", the modified site plan adds an additional access point into the parking lot to the north,across from the entrance to the Warehouse 1. Depot Industrial first attempted to abandon NW 2nd Street as a"utility easement",which would not have required approval from the City's Planning and Zoning Board. It was only after Depot Warehouse pointed out this was improper did Depot Industrial submit an application to abandon a right-of-way. Scott Pape June 1, 2015 Page 3 Property. (Exhibit"A"). So material is this change that it warrants resubmission to Planning and Zoning as a Class Il site plan modification. Regardless, it proposes to use our client's property for some of its improvements—which is neither acceptable, nor accepted planning practice. As noted,the hammerhead proposes to use a portion of the Warehouse Property for access, when access is currently provided by public right-of-way. Depot Warehouse objects to the use of private property for access that has previously been provided by public right-of-way. Depot Warehouse should not shoulder the burden of access to its property by forfeiting a portion of the Warehouse Property for access. Current and future use of the Warehouse Property will be encumbered by the hammerhead. It is Depot Industrial's responsibility to ensure it satisfies the conditions of approval from the Planning and Zoning Board on either public right-of-way or its own property, not the Warehouse Property. Depot Warehouse retained Kimley-Horn to analyze the access problems and the effectiveness of the proposed hammerhead. Kimley-Horn prepared truck turning radius drawings for 18-wheel trucks, and alternate fire access designs. (Composite Exhibit "B"). The first drawing demonstrates that the current Depot Avenue provides access for 18-wheel trucks. (Exhibit 1113-1"). The next drawing proves that the hammerhead design is inadequate for 18-wheel access. (Exhibit"13-21'). The final drawing establishes that alternate fire access routes are possible on the project site that do not encumber the Warehouse Property are feasible. (Exhibit "B-3"). Simply put, the hammerhead does not provide equivalent access as currently enjoyed by Depot Warehouse. The City's Planning and Zoning Board conditioned its recommendation of approval on satisfying the City's Fire Rescue Department access requirements and providing a 40' radius to solve access to the Warehouse Property. As demonstrated by the drawings attached, Depot Industrial has failed to comply with the conditions of the Planning and Zoning Board. 2) rhe Abandonment Dates Not 1'4^l"eet the Re uired Findings of Section 2.4.6 M of the City's LDRs Necessary for Approval of an Abandonment As a matter of law, the Commission must base its decision on whether to approve the proposed right-of-way abandonment on whether the Application meets the requirements of Section 2.4.6(M)(5) of the City's LDRs. Simply put, the Application does not. Specially, Section 2.4.6(M)(5)of the LDRs require Depot Industrial to prove: (1)that there is not, nor will there be, a need for the use of the right-of-way for any public purpose, and(2)that the abandonment will not result in detriment to the provision of access and/or utility services to adjacent properties or the general area. As set forth below, the Application fails to meet the requirements of Section 2.4.6(M)(5) of the LDRs, and the Commission should deny the Application. Scott Pape June 1, 2015 Page 4 A. The existing right-ol-wayserves a public purpose. and will continue to do so NW 2"d Street currently serves a public purpose that will be adversely impacted by the proposed abandonment. NW 2"d Street provides access to the Warehouse Property and to the City- owned train depot to the southwest. Also,tenants, customers, and other invitees of the Warehouse Property utilize NW 2"d Street. Some of these groups utilize large commercial trucks for deliveries and transportation of goods. This use by the City and invitees of the Warehouse Property qualify as a public use. The developer simply cannot meet the requirement that the existing right-of-way no longer serve a public purpose, as required by Section 2.4.6(M)(5)(a). B. 'ne abandonment will result in a detriment to the provision of access and utilit services to the Warehouse Property If for no other reason, the Commission should deny the Application because it will result in a detriment to the provision of access and utility services to the Warehouse Property. Section 2.4.6(M)(5)(c) of the LDRs expressly prohibits abandoning a right-of-way that will impact access. Under the currently—approved site plan, large commercial trucks and 18-wheel trucks will no longer be able to access the Warehouse Property. (Exhibit "C"). These trucks currently are able to back into the Warehouse Property from Depot Avenue for loading and unloading to the industrial bays. (Exhibit B-1). Thereafter, the trucks are able to drive straight to Depot Avenue. With the continuous degrading of access to the Warehouse Property, no truck would be able to back into the Warehouse Property. (Exhibit B-2). Trucks would then have to back out of the Warehouse Property without an area to turn around. The proposed changes to the site plan do not fix the access issues. This would effectively prevent all access to and from the Warehouse Property by large commercial and 18-wheel trucks. This is a significant detriment to the provision of access to the Warehouse Property, and a clear violation of Section 2.4.6(M)(5)(c) of the LDRs. In addition to access, critical services, such as fire and garbage,will be adversely impacted by the abandonment of NW 2"d Street. In general, fire trucks do not back out of streets. For this reason, Section 6.1.2(C)(3)(c) of the LDRs prohibits dead-end streets without provision of turnaround, and requires a cul-de-sac to be provided. No cul-de-sac is provided for the dead-end of NW 2"d Street. Further,Section 6.1.4(B)(1)of the LDRs requires points of access to be designed to be convenient for servicing and fire protection. With the current design, it would be difficult, if not impossible, for a fire truck responding to an emergency on the Warehouse Property to exit the property. This presents a public health and safety welfare issue that is worsened by the proposed abandonment. The hammerhead design proposed by Depot Industrial fails to satisfy Section 6.1.2(C)(3)(c) of the LDRs. Depot Industrial has the burden to prove it meets the LDRs on its own. Depot Warehouse has no obligation to provide access on the Warehouse Property, when such access was previously provided by public-right-of-way. This represents a loss of usable space on the Warehouse Property, and thereby a partial taking without compensation. This issues must be thoroughly evaluated, without a rush by the City to make a decision. Scott Pape June 1, 2015 Page 5 Similar to fire, access by garbage trucks will be impacted. Garbage trucks back out of the Warehouse Property and would be unable to do so with the proposed abandonment. Therefore, it is clear that access to the Warehouse Property will continue to be degraded by the proposed abandonment. In sum,the Application simply does not meet Section 2.4.6(M)(5)(a) and(c)of the LDRs and should be denied. 3) rhe Proposed Abandonment Will Leave a 20' Right-Of-Way Does Not ,Meet the City's Mandatory Road Width Requirements Finally, it is notable that Depot Industrial is abandoning only a 10' portion of the NW 2"d Street right-of-way. By limiting the abandonment to 10',Depot Industrial is not required to obtain consent Depot Warehouse. This is consistent with past practice where the Depot Square project was approved without any knowledge or consent from Depot Warehouse. Depot Industrial should be granting additional right-of-way, not less. Leaving a 20' strip of right-of-way in front of the Warehouse Property provides no meaningful access, and does not improve access to the Warehouse Property made worse by the prior abandonments. Depot Warehouse believes that additional right-of-way is the only means to preserve access to the Warehouse Property. Section 5.3.1(D)(2)of the City's LDRs require minimum right-of-way dimension of 60' in width for local commercial and industrial streets. (Exhibit"D"). Section 6.1.2(C)(2)(c)requires a minimum paving width of 22' for local roads. As a new development, the Depot Square project must be brought into compliance with the current LDRs for right-of-way and paving width. The Application proposed to create right-of-way that patently violates the design standards of Section 5.3.1(D)(2) of the LDRs. Section 5.3.1(D)(4)provides that additional right-of-way width may be required to promote public safety and welfare, and to assure adequate access and circulation. Section 5.3.1(13)(2)of the LDRs requires proposed streets to be extended to provide access to adjoining properties. The Application fails to provide the necessary right-of-way. In this situation, additional width of right- of-way is warranted. Yet, the Application proposes to reduce right-of-way, to the detriment of access to the Warehouse Property. The Commission should exercise its authority to require additional right-of-way. Section 5.3.1(D)(5) of the LDRs allows for more narrow rights-of-way, but only upon a showing by the applicant. The applicant did not, and cannot, show how a full dedication of 60' of right-of-way will create a hardship, and cannot show how the more narrow right-of-way will not endanger the public safety and welfare as required by Section 5.3.1(D)(5). In sum,Depot Warehouse does not consent to the encumbrance of the Warehouse Property so Depot Industrial can satisfy its access requirements. To do so would result in a functional loss of property, thereby creating a partial taking of the Warehouse Property. The Application fails to fails to comply with the City's LDRs involving both access and safety issues, of which the City is charged with protecting. For this reason, the Commission should deny the Application until such Scott Pape June 1, 2015 Page 6 time as the applicant can address these significant access and safety issues without the sacrifice of a portion of the Warehouse Property. Sincerely, Thomnas F. Mullin cc: Cary Glickstein, Esq. Shelly Petrolia Jordana Jarjura, Esq. Al Jacquet, Esq. Mitch Katz Noel Pfeffer, Esq., City Attorney Francine Ramaglia John Gwynn Nathan Nason, Esq. 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SUB—GRADE MIN. 5' CONCRETE WEARING SURFACE 5' CONCRETE SIDEWALK, SIDEWALK, „ 4” THK. (6" THICK 4 THK. (6 THICK AT DRIVEWAY 6" STABILIZED AT DRIVEWAY & INTERSECTIONS) SHOULDER & INTERSECTIONS) (50 P.S.I. F.B.V.) PAVEMENT SPECIFICATIONS WEARING SURFACE 1 1/2" TYPE S—III (2 LIFTS) SEE NOTE 2 8" LIMEROCK OR 10" CRUSHED CONCRETE COM— BASE PACTED TO 98% MAX. DENSITY PER AASHTO T-180. PRIME & TACK COAT PER FDOT SECTION 300. 12" STABILIZED (75 P.S.I. FBV) AND SUBGRADE COMPACTED TO 98% MAX. DENSITY PER AASHTO T-180. NOTE: 1. VARIATION FROM MATERIAL SPECIFICATIONS WILL BE CONSIDERED ON A CASE BY CASE BASIS BY THE CITY ENGINEER. 2. 2ND LIFT SHALL NOT TO BE PAVED UNTIL CONSTRUCTION VEHICLES AND EQUIPMENT HAVE COMPLETED WORK. EXHIBIT " D " CITY of DELRAY BEACH DATE:01-12-2006 d ENVIRONMENTAL SERVICES DEPARTMENT TYPICAL 60' R/W SECTION RT 1 .2 e�p 434 SOUTH SWINTON AVENUE,DELRAY BEACH,FLORDA 33444