12-06-05 Minutes
Commissioner Jeff Perlman
DECEMBER 6, 2005
A Regular Meeting of the City Commission of the City of Delray Beach,
Florida, was called to order by Mayor Jeff Perlman in the Commission Chambers at City
Hall at 6:00 p.m., Tuesday, December 6, 2005.
1.
Roll call showed:
Present - Commissioner Patricia Archer
Commissioner Rita Ellis
Commissioner Jon Levinson
Commissioner Alberta McCarthy
Mayor Jeff Perlman
Absent - None
Also present were - David T. Harden, City Manager
Susan A. Ruby, City Attorney
Chevelle D. Nubin, City Clerk
2.
The opening prayer was delivered by Commissioner Archer.
3.
The Pledge of Allegiance to the flag of the United States of America was
given.
4.AGENDA APPROVAL.
Item 8.0, Initiation of Proposed
Mayor Perlman noted the addition of
Ordinance Changing Land Development Regulations
to the Consent Agenda by
addendum.
Item 9.D.,
Also, Mayor Perlman stated there is additional information for
9.L., and 9.C.
Mr. Levinson moved to approve the Agenda as amended, seconded by
Mrs. Archer. Upon roll call the Commission voted as follows: Mrs. Ellis – Yes; Mrs.
Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes. Said
motion passed with a 5 to 0 vote.
5. APPROVAL OF MINUTES:
Mrs. Ellis moved to approve the Minutes of the Regular Meeting of
November 15, 2005, seconded by Mr. Levinson. Upon roll call the Commission voted as
follows: Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman
– Yes; Mrs. Ellis - Yes. Said motion passed with a 5 to 0 vote.
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6.PROCLAMATIONS:
?
NONE
7.PRESENTATIONS:
?
NONE
8.CONSENT AGENDA:
City Manager Recommends Approval.
8.A.RATIFICATION OF THE SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD ACTIONS:
Approve
and ratify the actions of the South Central Regional Wastewater Treatment and Disposal
Board at their Quarter Annual Meeting of November 17, 2005.
8.B. UTILITY EASEMENT/FLORIDA POWER AND LIGHT:
Approve a
utility easement document granting to Florida Power and Light the means to
install/maintain a transformer within the Catherine Strong Park to supply power to the
new water park.
8.C. HOLD HARMLESS AGREEMENT/COLONIAL FIREWORKS
DISPLAYS AND MANUFACTURING COMPANY:
Approve and accept a hold
harmless agreement with Colonial Fireworks Displays and Manufacturing Company for
the Fireworks presentation for First Night 2005.
8.D. BROKER CONTINGENCY COMMISSIONS AND GENERAL
RELEASE/ARTHUR J. GALLAGHER & COMPANY:
Approve a settlement in the
amount of $309.03 and execution of a General Release with Arthur J. Gallagher &
Company regarding contingency commissions.
8.E. SECOND AMENDMENT TO CONTRACT FOR SALE AND
PURCHASE/ AUBURN TRACE:
Approve the Second Amendment to the Contract for
Sale and Purchase between the City and Auburn Trace, LTD. to extend the closing date
to January 31, 2006.
8.F. MODIFICATION TO DEPARTMENT OF ENVIRONMENTAL
PROTECTION (DEP) CONTRACT/BEACH RENOURISHMENT:
Approve a
modification to the Department of Environmental Protection (DEP) Contract No. 99PB2
regarding funding related to the Year 2002 Beach Renourishment Project.
8.G. PUBLIC ART ADVISORY BOARD RULES:
Approve the rules of the
Public Art Advisory Board as adopted by that board on November 10, 2005.
8.H. CHANGE ORDER NO. 2/JMW CONSTRUCTION
CORPORATION:
Approve Change Order No. 2 in the amount of $82,960.00 to JMW
Construction Corporation for the assembly and installation of bus shelters. Funding is
available from 334-3162-544-65.70 (General Construction Fund/Transit Stop Bus
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Shelters).
8.I. CHANGE ORDER NO. 2 (CONTRACT ADDITION)/CHAZ
EQUIPMENT COMPANY, INC.:
Approve Change Order No. 2 (Contract Addition)
in the amount of $78,423.75 to Chaz Equipment Company, Inc. to the Swinton Avenue
Beautification Project for the construction of fiber optic conduit and pull boxes which
will serve as a conduit for a redundant connection for future fiber optic connection
between the Environmental Services Department and City Hall. Funding is available
from 441-5161-536-62.32 (Water/Sewer Fund/New Capital, ESD Building Expansion).
8.J. CHANGE ORDER NO. 3 (CONTRACT ADDITION)/CHAZ
EQUIPMENT COMPANY, INC.:
Approve Change Order No. 3 (Contract Addition)
in the amount of $39,250.00 to Chaz Equipment Company, Inc. to the Swinton Avenue
Beautification Project for the emergency repair of a sewer line break at 521 Curlew Road.
Funding is available from 442-5178-536-63.51 (Water/Sewer Renewal & Replacement
Fund/Sewer Mains).
8.K. SERVICE AUTHORIZATION NO. 6/MATHEWS CONSULTING,
INC.:
Approve Service Authorization No. 6 to Mathews Consulting, Inc. in the amount
of $88,000.00 for the design of infrastructure improvements for the Seasage Drive,
Melaleuca Road, and Oleander Lane Drainage Improvements Project. Funding is
available from 442-5178-536-65.35 (Water/Sewer Renewal & Replacement Fund/
Seasage/Melaleuca/Oleander) and 448-5461-538-65.35 (Stormwater Utility Fund/
Seasage/Melaleuca/Oleander).
8.L. RIGHT-OF-ENTRY AGREEMENT AND EASEMENT
DEED/HAMLET COUNTRY CLUB:
Approve the Right-of-Entry Agreement and
Easement Deed with the Hamlet Country Club to allow The Hamlet Country Club to
connect to the reclaimed water system being implemented by the City.
8.M. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD
ACTIONS:
Accept the actions and decisions made by the Land Development Boards for
the period November 14, 2005 through December 2, 2005.
8.N. AWARD OF BIDS AND CONTRACTS:
1.
Contract award to Asphalt Consultants, Inc. in the amount of
$1,240,565.00 for the Area 2 & 3 Reclaimed Water Transmission
Project. Funding is available from 441-5181-536-65.96
(Water/Sewer Fund/Reclaimed Water Transmission System).
8.O. INITIATION OF PROPOSED ORDINANCE CHANGING LAND
DEVELOPMENT REGULATIONS:
Approve an initiation of a proposed ordinance
changing the Land Development Regulations which will prohibit office uses including
but not limited to Attorneys, Banks, and Medical Offices on ground floors of buildings
along Atlantic Avenue within the Entertainment/Retail Zone as identified in the
Downtown Delray Beach Cluster Study (Swinton Avenue to the Intercoastal).
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Mr. Levinson moved to approve the Consent Agenda as amended,
seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr.
Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs.
Archer – Yes. Said motion passed with a 5 to 0 vote.
9.REGULAR AGENDA:
9.A.CONDITIONAL USE REQUEST/ATLANTIC PLAZA:
Consider a
request to allow a building height in excess of 48’ (to a maximum of 60’) and a density to
exceed 30 residential units per acre (47 dwelling units per acre proposed) for Atlantic
Plaza, a proposed mixed-use development that includes 306 residential units 57,137 sq.
ft. of retail space, 8,811 sq. ft. of restaurant space and 44,204 sq. ft. of office space,
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located on the north side of East Atlantic Avenue, extending between N.E. 6 Avenue
(Quasi-Judicial Hearing)
and Veteran’s Park.
Mayor Perlman read into the record the City of Delray Beach procedures
for a Quasi-Judicial Hearing for this item and all subsequent Quasi-Judicial items.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Perlman asked the Commission to disclose their ex parte
communications. Mr. Levinson stated he received emails and has forwarded them to the
Commission’s email site. Ms. McCarthy stated she received emails and has forwarded
them to the Commission’s email website. In addition, Ms. McCarthy stated her voice
mail was filled twice so she started logging names and she will forward these emails to
the City Clerk. Mayor Perlman stated he forwarded everything to the Commission
website and the packets in his office will be delivered to the Clerk’s office tomorrow.
Mrs. Ellis stated she too has forwarded numerous emails to the Commission website,
logged numerous telephone calls, and stated she will forward the letters and forms to the
City Clerk. Mrs. Archer stated most of the emails she received have been forwarded to
the Commission website and will complete this by tomorrow, she has kept a log of all the
telephone calls, and she just forwarded all the packets she received to the City Clerk.
The City Attorney stated there has been a request received in writing for
an additional ten minutes for the hearing and also that the cross-examination not be
conducted through the chair but directly. It was the consensus of the Commission to keep
the rules as they are and not grant additional time and that the cross-examination remains
through the chair.
Paul Dorling, Director of Planning and Zoning, entered the Planning and
Zoning Department project file #2003-317 into the record.
Mr. Dorling stated this is a conditional use request for (1) an increase in
building height to a maximum of 60 feet, and (2) to allow a density increase from 30
units to the acre to 47 units per acre. The original site plan for Atlantic Plaza was
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approved in 1984 for approximately 80,000 square feet. In addition, this development
proposal includes another piece west of the Atlantic Plaza and adding this square footage
would make this a total of 99,000 square feet of retail/office and 18 units of motel. The
proposal includes the demolition of the 99,000 square feet and 18 units and the
reconstruction of 110,000 square feet of retail, office, restaurant, and 306 units.
At its meeting of October 17, 2005, the Planning and Zoning Board held a
public hearing in conjunction with the request. There were several people from the
public who expressed concern over the proposed increase in height and density and after
significant discussion the Board voted 4 to 2 to recommend approval subject to positive
findings that are identified in the Planning and Zoning staff report. At its meeting of
August 10, 2005, the Downtown Development Authority (DDA) reviewed the
conditional use request and recommended approval and at its meeting of October 5, 2005,
the Community Redevelopment Agency (CRA) considered the conditional use request
and recommended approval 7-0 in support.
Francisco Perez-Azua, Architect with Perez Design, Inc. for the
project,
gave a brief PowerPoint presentation regarding the proposed project.
Blount Hunter (Consultant with H. Blount Hunter Retail & Real
Estate Research Company),
briefly spoke regarding the Cluster Study.
Michael Weiner, Attorney with Weiner & Aronson, P.A., 102 N.
Swinton Avenue, Delray Beach,
stated in anticipation of this meeting he met with the
Beach Property Owners’ Association (BPOA), the Downtown Development Authority
(DDA), Community Redevelopment Agency (CRA), the Planning and Zoning Board and
all three Boards voted in favor of this project. He addressed two major concerns of the
public: (1) traffic and (2) size (density). Mr. Weiner stated the explanation of traffic is in
the Downtown Master Plan adopted in March 2002. He briefly spoke about the size of a
building and stated with respect to conditional uses for density there are eight different
points and the staff report states that the applicant has met them. Since the time of the
staff report, Mr. Weiner stated there has also been placed in the record additional
information concerning specific items in further support of staff’s conclusions.
Furthermore, Mr. Weiner stated the applicant agrees with all the conditions of approval
and he urged the Commission to support this project because it meets every objective of
the Comprehensive Plan, the LDR’s, the Delray Beach Master Plan, and the Cluster
Study.
Mayor Perlman stated if anyone from the public would like to speak in
favor or in opposition of the conditional use request, to please come forward at this time.
Jim Smith, 1225 S. Ocean Boulevard, Delray Beach,
strongly opposes
this project and feels the property is water locked on the east by the Intracoastal and on
the west by a one-way Federal Highway. In his opinion, Mr. Smith feels that if this
project is allowed to be built with its proposed density it will become a nightmare. He
stated there will be between 4,000-6,000 car trips per day. He suggested that a full
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fledged traffic study be done and that this proposal be sent back to the drawing board
until the necessary traffic study has been completed and City staff has had the
opportunity to tighten up the Design Guidelines to prevent developers from being able to
overbuild. He suggested that the developer could provide a bicycle storage room in the
building for all the condominium owners to help mitigate the traffic congestion.
Mark Reingold, 107 MacFarlane Drive #204, Delray Beach,
stated he
and his wife has lived in Delray Beach for over 10 years and has witnessed considerable
growth of the downtown especially in the past few years consistent with the Downtown
Master Plan. He stated overall he has been pleased with the growth; however, there have
been times where they were concerned that it might be too much growth and that perhaps
the look and feel of the town might be lost. He agrees that housing is important, that
housing provides a base for the businesses, and that it is great for the residents who can
walk to their favorite restaurants and shops. However, Mr. Reingold stated the number of
such projects along with their height and density in his opinion seems likely to
overwhelm the beauty and look of Delray Beach. Also, he stated the village look that
everyone loves could be affected by the possibility of typical mall stores moving into
downtown as additional growth occurs. Mr. Reingold stated the surge and development
tells us that the Downtown Master Plan has served its purpose and he feels it should now
be reviewed and revised before it is too late.
Torrey Everett, 50 East Road #3-A, Delray Beach (Barr Terrace),
stated this is a mammoth project which he feels will overshadow Veteran’s Park and
noted it is not a village by-the-sea project. Secondly, he stated this project will be a
traffic bottle-neck and although he agrees that more garage space is needed, he feels it
should not all be in one place. Mr. Everett urged the Commission to send this project
back for re-design.
Bernard Dahlem, 622 Seasage Drive, Delray Beach,
stated he worked
as a professional engineer and was licensed to practice in four states in addition to being a
real estate broker. He stated when they would do a development they would have two
groups (someone to look at the trees and someone to look at the forest). He stated as one
comes down the street as designed this project will look big and in his opinion is not
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Delray’s style, as designed 47 units per acre is intensive in use, 7 Avenue will cease to
be a neighborhood street and will become more rental oriented rather than owner
occupied. Mr. Dahlem stated this is a good project but is just a bit too large and urged
the Commission to keep Delray Beach a village by-the-sea.
Clair Johnson, 46 Marine Way, Delray Beach,
stated there is already a
lifestyle in Delray Beach and feels the project is too large. He expressed concern over
the number of units and how many parking spaces in the parking garage are going to be
with the unit holders. He stated the majority of the people who will live in this building
will own two cars and he expressed concern over where the cars are going to park, where
the parking will be for the restaurant and for all of the businesses that are being added.
Mr. Johnson stated the city is trying to make more space for the businesses on Atlantic
Avenue already because there is currently not sufficient space for the residents or the
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businesses. Mr. Johnson stated that Veteran’s Park is being taken away from the public
and feels the excess parking from the building will go down into the parking for the park.
He urged the Commission to re-think this project and that traffic studies be done.
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Steve Plamann, 840 N.E. 1 Court, Delray Beach,
stated he has lived in
Delray Beach since 1987 and strongly opposes the proposed project especially because of
what it would do to Veteran’s Park. He stated Veteran’s Park is a jewel and people have
weddings in the park and people often enjoy concerts. Mr. Plamann stated he read the
Downtown Master Plan and while it does recommend higher housing density for the
downtown it specifically warns against projects as big as what is being proposed at
Atlantic Plaza. He stated the Downtown Master Plan states that the City should
“encourage development fronting along the Avenue with three stories as ideal height and
four stories being the maximum desired height.” In addition, Mr. Plamann read into the
record the following from page 90 (Conclusions and Recommendations) of the
Downtown Master Plan “Delray Beach’s small town feel will rely greatly on maintaining
its current architectural scale and style with escalating land prices and limited in-fill
opportunities it is tempting to build five and six story buildings rather than two or three
story buildings. Honoring the historic character of the community through consistent
design will elevate local residents comfort level with new development and expand
downtown’s image as a unique historic small town.” He urged the Commission to vote
against both conditional uses.
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Cheryl Jones, 131 S.E. 7 Avenue, Delray Beach,
strongly opposes the
project primarily due to the increased traffic it would generate. She stated the traffic on
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S.E. 7 Avenue is already horrendous and the speeding is getting out of hand. Ms. Jones
encouraged the Commission to address the traffic issues in this area.
Henry Romig, 60 Venetian Drive, Delray Beach,
urged the Commission
to protect the neighbors from overdevelopment of this particular parcel. He commended
the architect and builder on the elegance of the plan; however, it is much too massive for
the neighborhood. Mr. Romig urged the Commission to send it back to the drawing
board and hopes the project can moved forward in a much smaller scale.
Charles Bonfield, 220 MacFarlane Drive, Delray Beach,
expressed
concern over the adverse effects the Atlantic Plaza plan proposed by JMS Development
will have on the city and its residents. He stated it would be prudent to declare a hiatus
on further residential development in the Central Business District (CBD) until we can
assure ourselves that we are not creating a traffic nightmare. Mr. Bonfield urged the
Commission to not support the Atlantic Plaza proposal until they are sure the city can
handle the additional automobile traffic and parking.
Kevin Hall, 416 Palm Trail, Delray Beach,
stated he would like the
developer to quantify the 306 dwelling units and commented about the square footage per
unit average. He expressed concern over the traffic, wastewater, sewer system, and the
infrastructure. He asked if there has been a study as to the impact that this project will
make by close to doubling the residential, commercial, and retail space. Mr. Hall
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commended the developer for the presentation; however, he feels the project is too large.
Barbara Fodor, 440 Canal Point South, Delray Beach,
(real estate
salesperson), stated she supports the project and feels it will make the downtown area
prosper and will help attract more people who want to live in the City of Delray Beach.
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Linda Walsh, 119 N.E. 7 Avenue, Delray Beach,
supports the project
and stated in order to maintain Delray’s vibrancy the city must move forward. She
believes this project is tasteful and accommodates many of the concerns of the neighbors,
will enhance property values, and will add to the prosperity of downtown Delray Beach.
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Charles Dortch, 112 S.E. 7 Avenue Unit #2, Delray Beach, (President
of the Marina Historic District Homeowner’s Association),
stated many of the
residents in the Marina Historic District have expressed that when you drive up Federal
Highway it is like driving through a tunnel. He stated from an ethical standpoint, the
question should be do we want to live in a city of tunnels and walls. Mr. Dortch stated
there is nothing wrong with progress but urged the Commission to keep it within the
guidelines.
Dale Everett, 1000 Lowry Street, Delray Beach (President of the
Delray Summit Homeowner’s Association),
speaking on behalf of 65 property owners,
stated the property owners vigorously opposed to the developer’s request for code
exceptions to the density and the height for this project. He expressed concern that the
increased traffic will place an unreasonable burden on the neighborhood and by ignoring
the current city planning codes it will set a precedent to allow other town developers to
continue intense development along Atlantic Avenue to A-1-A. Mr. Everett stated the
developer knew the rules before starting the plan and emphasized that the rules were
written to be fair to the developer and to the community.
Alan Schlossberg, 200 MacFarlane Drive, Delray Beach,
stated he
agrees that this core area should be developed in Delray Beach; however, he feels this
particular project is a bit too much in terms of height, density, and traffic. He urged the
Commission to not approve this project.
Johnny Kincaide, 564 Enfield Court, Delray Beach (member of the
Planning and Zoning Board),
strongly supports the project and stated the developer has
made changes that the Planning and Zoning Board suggested and he feels reassured that
they are really listening to what staff has to say. Mr. Kincaide stated he has lived in
Delray Beach for over 30 years and has witnessed much change and is very proud of the
growth. He stated the Master Plan works and the procedures the City of Delray Beach
has in place work. Mr. Kincaide stated this is a unique venue and is going to be the
cornerstone of what Delray Beach is trying to establish in terms of viability, nightlife,
professional environment and atmosphere and he urged the Commission to support this
project.
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Abbey Weiss, 809 N.E. 1 Street #E-7, Delray Beach,
is strongly
opposed to the project and stated the proposed mixed use development is against the best
interest of the community for two primary reasons. Both the cost of the residential space
and the volume of residential space are excessive. She stated the residents are speaking
in favor of progress not excess.
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Cary Glickstein, 277 S.E. 5 Avenue, Delray Beach,
entered his
qualifications into the record and speaking on behalf of the Beach Property Owner’s
Association (BPOA) stated the BPOA is opposed to the proposed conditional use
applications. In his opinion, Mr. Glickstein stated the proposed project representing a
series of overly massive and imposing structures that are not compatible with the
surrounding uses and building heights, will denigrate Veteran’s Park, will create traffic
jams east and west of the Atlantic Avenue bridge and will tarnish the gateway to and
from the Intracoastal and beach areas. He urged the Commission to deny the applicant’s
application.
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Jay Bailyn, 103 S.E. 4 Avenue #301, Delray Beach,
strongly supports
the project and stated as a resident he would like the ability to shop and live in this city.
He stated the more residents and retail space we put in the centralized downtown area the
less the traffic will be in the long run.
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Vertis Clay, 417 S.W. 8 Avenue, Delray Beach,
stated she has lived in
Delray Beach for over 40 years and supports the project. She feels this project will help
create jobs and will entice the younger generation to come back to Delray Beach.
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Barbara Haynes, 425 S.W. 15 Avenue, Delray Beach (owner of a
Daycare facility),
stated she has lived in Delray Beach since 1942 and has witnessed
many changes. She supports the project because she feels it will help create job
opportunities for the younger generation.
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Queen Owens, 328 N.W. 2 Avenue, Delray Beach,
stated she came
here in 1942 and echoed comments expressed by Barbara Haynes. She urged the
Commission to support the project keeping in mind the future of our children.
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Cecelia Boone, 239 N.E. 1 Street, Delray Beach,
supports the project
and stated that the density is a function of the design and this proposal with the setback is
something new. She stated this is what young people want to see and the city needs the
retail services downtown so that people can walk to the shops and not have to drive. Ms.
Boone expressed concern that the traffic issues need to be addressed with traffic calming,
etc.
Kai Holmgren, resident of Delray Beach,
thanked the Commission for
everything they have done for this city. He supports the project and feels it will enhance
Delray Beach.
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Richard Edick, 615 N. Ocean Boulevard, Delray Beach,
stated he just
heard about this project a few weeks ago at the Beach Property Owners’ Association. He
stated this is a major project that will affect the community and the citizens. He stated it
has not been well publicized and feels the citizens deserve a fair opportunity. Mr. Edick
urged the Commission to scale back this project to something that is less dense yet still
achieves what the City of Delray Beach needs in terms of retail, jobs, and commercial.
Furthermore, he suggested that the Commission send this project back for further review
and allow the citizens time to understand and review the traffic studies, parking studies,
and the performance criteria.
Bruce Goldstein, 100 Atlantic Avenue, Delray Beach (business owner),
stated he has been in the hotel and restaurant business for 29 years and he supports the
project. He stated he loves the way the project is setback after the first two stories and
believes it has been very well thought out. Mr. Goldstein stated he read the Delray Beach
Master Plan and the Cluster Study and is convinced that the Central Business District
(CBD) will not be vibrant in many years in the future if projects of this nature that are so
well thought out are not allowed to be developed.
Patsy Westall, 1102 Seaspray Avenue, Delray Beach,
stated in the last
fifty years there has been mostly healthy growth without sacrificing the charm that makes
Delray Beach special and different from the neighboring communities to the north and
the south. However, in her opinion, she stated this project takes us in the wrong direction
not because Atlantic Plaza currently does not meet potential in terms of tax revenues but
because what is being proposed is overwhelming. Ms. Westall stated the proposed
project is too tall, too dense, and it will add to the current traffic congestion on Atlantic
Avenue. She urged the Commission to send the applicant back to the drawing board and
have them re-submit a proposal keeping in mind what many people hope will continue to
be the village by-the-sea.
Maureen Ruthman, 1555 S. Federal Highway, Delray Beach (works in
downtown Delray Beach)
supports the project and stated she relies on downtown Delray
for social, entertainment, and business. She stated this project will help to enhance
everyone’s lifestyle, add to property values, and add to the vibrancy of downtown Delray
Beach.
Edward Degaps, new resident from Connecticut,
stated he lived in
Connecticut and worked in New York and spent three hours a day commuting. He would
like to live, work, and shop in Delray Beach.
June Hefti, 1000 Lowry Street, Delray Beach,
agrees that Atlantic Plaza
needs to be redeveloped; however, she urged the Commission to postpone the vote and
look further into the project limiting the developer to four stories and 30 dwelling units
per acre that conforms to the village by-the-sea.
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Arthur Buttner, 2677 N. Albatross Road, Delray Beach,
supports the
project and believes it is an excellent project that will enhance Delray Beach. He
encouraged everyone to trust the process that is in place.
Mark Adrien, 1102 Waterway Lane, Delray Beach,
supports the project
and stated he knows the developer and he is an honest person.
Scott Newcomb, 200 Lindell Boulevard, Delray Beach,
stated he works
at a restaurant in the downtown area and stated the foot traffic is the bread and butter.
The more stores and residential units that are put into this area will increase the revenue
coming into the community. He stated one of the benefits of the proposed project is that
the prices of homes will go up in value and the downfall is that the traffic can increase.
He stated no one knows the facts of what the traffic will be like with this project but the
building fits the codes. Mr. Newcomb stated we need the growth and the project will
help improve the area and the community as a whole.
Brett Foreman, recent homeowner in Delray Beach,
commended the
community for being proud of the progress in Delray Beach over the last several years
and stated this will help to increase the tax base for the services that everyone enjoys. In
his opinion, Mr. Foreman stated half the traffic is looking for a parking space and this
provides 800 parking spots. Some of the residents that everyone is criticizing for having
two cars may be part-time residents and feels there will be plenty of additional parking
spaces for someone to go as a destination and frequent the retail and the restaurants as a
pedestrian. Overall, he supports the project and feels this is added progress.
Eric Hughes, 1915 Lavers Circle, Delray Beach,
stated change is
inevitable and he feels the project is aesthetically pleasing. He stated he has lived here
for over three years and he really likes living in Delray. Mr. Hughes stated this is an All-
American City and is a town he is glad they did not shut the doors on 3 ½ years ago
because he would not have had the opportunity to live and work here. He stated he
would hate to see the doors shut for future residents and businesses to come into Delray.
Stephanie Harris, 3240 Delray Bay Drive, Delray Beach,
(originally
from Fort Lauderdale) supports the proposed project. She stated she spent her high
school years taking weekend trips to Palm Beach County and after graduating from
college she left Fort Lauderdale to relocate to Palm Beach County. She stated she has
worked in Palm Beach County for the last ten years and recently relocated from Boynton
Beach to Delray Beach. Mrs. Harris stated she and her family really enjoy the downtown
and the activities in Delray Beach.
Kim Griffin, resident of Delray Beach,
stated she supports the proposed
project. In her opinion, she stated one of the downsides to Delray Beach is she has to
travel to other places and neighboring cities for entertainment and shopping. Ms. Griffin
stated she would like to be able to do things right here in Delray Beach rather than go to
other cities. She feels there is a traffic issue because people have to drive to other places
and does not think there would be a major traffic issue if more people are able to walk.
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Furthermore, Ms. Griffin stated we have to consider our future and she feels this change
would be for the betterment of the community.
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Michael Singer, 901 N.E. 5 Street, Delray Beach (professor at
Florida Atlantic University)
stated he is excited to know there are other fellow citizens
that feel the same way he does about this project. He expressed concern over what is
happening to Delray Beach and the comments expressed this evening (i.e. tunnel, cookie
cutter, generic). Mr. Singer stated people do not want to lose the quality of life that is
here and what makes Delray Beach special and the “All America City”. Mr. Singer
stated he does not see how a project like this opens the door for young people or how it
addresses the concerns of young people (i.e. environmental health issues and good
planning). He urged the Commission to re-visit the Delray Beach Master Plan.
Gary Goldfarb, owns Atlantic Antique Mall,
supports the project and
urged the Commission to support it.
Milan Hejda, owner of Sonoma Café & Bistro, 640 Atlantic Avenue,
Delray Beach,
supports the project because she feels this will help her business.
Brad Dowler, 1 Harbourside Drive Unit #1701, Delray Beach,
strongly
supports this project and stated this would be a great attraction for the City of Delray
Beach.
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Timothy Marks, 218 N.E. 7 Avenue, Delray Beach,
is opposed to the
proposed project. He stated although he is for progress, in his opinion the height is too
high to walk through and look at compared to the surrounding areas.
Jeff McDonald, 1405 S. Federal Highway, Delray Beach,
stated he has
worked on Atlantic Avenue for the last four years (east of Federal Highway west of the
Intracoastal) and has personally seen that this area needs a lot of help. He stated many of
the younger people are not present this evening expressing their opinion because they are
working 2-3 jobs to live here in Delray Beach. Mr. McDonald stated a project of this
nature will increase immensely not only in enthusiasm and growth, but also for the
business owners in the area and he urged the Commission to vote in favor of this project.
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Jackson Langford, 812 N.E. 1 Court, Delray Beach (resident of
Delray Beach for 11 years),
stated growth is inevitable but controlled growth is
preferred. He commented about the language in the Master Plan and stated the protection
of the integrity of the neighborhoods and the traffic is absolutely critical. He stated the
traffic is currently immense and feels if a project of this size were approved would be a
huge undertaking especially having pedestrians walking to and from Veteran’s Park. Mr.
Langford urged the Commission to not support this project because he feels it will ruin
the charm and uniqueness of Delray Beach.
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Jay Jacobson, 222 N.E. 8 Avenue, Delray Beach,
stated this is like no
other place in the United States and it is working. He stated to continue to make it work
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12/06/05
the city needs more people here and something for those people to do when they come to
Delray. Mr. Jacobson stated the mixed-use zoning is the way to go and suggested that the
City of Delray Beach have some sort of exclusionary zoning for price protection in order
to get additional economic diversity into any project done in the city.
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Stephen Larson, 215 N.E. 7 Avenue, Delray Beach,
opposed to this
project primarily due to the density and the traffic. He stated there are currently major
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issues with traffic on 7 Avenue and has become progressively worse in the last year.
Mr. Larson stated there are people who have lived in Delray Beach a long time who
know the city and are adamantly against this project and there is another group who are
very much in support of the project who appear to have an economic interest in the
project. He stated in Lake Tahoe (where he owns a second home), growth has been
stifled to protect the area and home prices have increased tremendously. Mr. Larson
stated Lake Tahoe, as a single market, has had the highest growth in the past five years
more than anywhere else in this country only challenged by Delray Beach. In his
opinion, he stated that people are moving to Delray Beach because of its uniqueness and
to not be congested. He suggested that the developer come up with a down-scaled
version of the plan and charge more for each unit.
Kevin Warner, 248 Venetian Drive, Delray Beach,
commended the
Fire-Rescue Department for their response time to when there is an emergency because
of their well managed resources. He expressed concern for the day when more projects,
more congestion, and more blocked roadways will mean that public safety is at risk
because it takes longer for the ambulance to arrive. Mr. Warner stated this project could
provide just as many wonderful amenities and benefits for the downtown if it were
smaller. He encouraged the Commission to vote against this project.
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Steve Miskew, 819 N.E. 1 Court, Delray Beach,
stated he is in favor of
the project and stated many of the people in the city have benefited greatly from the
changes that have taken place in the city (the revitalization and the enhancement) which
he believes is a manifestation of the Master Plan.
Mark Fields, 414 Seasage Drive, Delray Beach,
stated he does not see
anything wrong with the building but is what is in the building. He expressed concern
over the increased traffic in the area and commented that the traffic has gotten worse.
Mr. Fields suggested that there be a bond referendum and the City buy the property and
turn it into either a larger Veteran’s Park or affordable housing for people to live in.
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Carl Nimbock, 65 N.E. 4 Avenue, Delray Beach,
strongly supports this
project and stated it will add to the revitalization of the city.
Jack Maloney, 239 Palm Trail, Delray Beach,
stated he and his wife
own businesses in Delray Beach and are vehemently opposed to this project. He stated
the project is beautiful but in his opinion is out of scale for Delray Beach. He stated his
children love Veteran’s Park and feels the project will only denigrate the park. Mr.
Maloney supports prudent change and feels we risk losing what makes Delray Beach
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12/06/05
charming by placing a project of this magnitude on Atlantic Avenue.
Barry Bernstein, owner of the gas station on Atlantic Avenue,
stated
this is an aesthetically pleasing project for the area and feels this will be good for Delray
Beach.
Dr. Annette Annechild, 300 North Swinton Avenue, Delray Beach,
participated in the last graduating class for the Delray Beach Residents Academy, stated
there is no question that Atlantic Plaza does not work well for Atlantic Avenue.
However, she stated this project is not Delray Beach for the people who live here and in
her opinion the only benefit is if one sells their house. Dr. Annechild stated she does not
want to sell her house and wants to be able to afford to live here.
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Kyle Kuberski, 345 N.E. 8 Avenue, Delray Beach,
stated his
profession is construction and understands the iterations that design goes through. He
expressed concern over the traffic that would be traveling through his neighborhood if the
project is approved. He urged the Commission to send this back to the developer for re-
design and to come up with a more creative solution.
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Norman Weinstein, 411 N.E. 7 Avenue, Delray Beach,
stated he too
shares many of the concerns expressed this evening by his neighbors. He stated the city
has a roadmap for development of the downtown area which is the Master Plan. He
asked where was the discussion when the Master Plan was being developed and the
concept of conditional use and density were being implemented. Mr. Weinstein stated
this project appears to be consistent with the plan which addresses most of the issues that
are in the Master Plan. He stated it would be inappropriate at this time to reject this
project because he feels whether it is 300 units or 200 units there are going to be the same
traffic problems, etc. voiced by people this evening.
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Greg VanWormer, 722 N.E. 1 Court, Delray Beach,
stated he wrote a
letter to the Commission and he is opposed to the project. He stated he is not against the
architecture or the essence of the project. However, Mr. VanWormer stated the scale is
too large for the town we live in and if approved, he feels it will change the way the city
is to live in.
John Bennett, 137 Seabreeze Avenue, Delray Beach,
speaking on behalf
of Progressive Residents of Delray (PROD), stated there have been a number of
conditional uses for increased height and/or density but never one fronting on Veteran’s
Park or abutting directly on Atlantic Avenue. He stated this provides a rationale basis for
distinguishing the previous cases from the one at hand. He stated Veteran’s Park is a
greatly used park with activities for children, a place where ceremonies and concerts are
held and Atlantic Avenue is the lifeblood. PROD suggests sending this back to the
developer for redoing of some of the project so that the buildings along Atlantic Avenue
and Veteran’s Park are lower with less density. Mr. Bennett urged the Commission to
come up with a compromise.
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12/06/05
Mr. Levinson commented about an email from the President of PROD.
Gerry Franciosa, 939 Eve Street, Delray Beach,
stated the email was
sent to the Commission because PROD has a Board of 12 members and the majority rules
and the majority has decided to not support this project.
Walter Baris, 220 MacFarlane Drive #S-701, Delray Beach,
congratulated the Commission for enormous development that has been created in this
area. He stated the two things that have accounted for this is because Delray Beach is (1)
unique and (2) a village by-the sea. He stated this project does not belong here and in his
opinion will not add to the uniqueness and village by-the-sea character of the community.
Mr. Baris stated the people who have made this town grow were the people who wanted
to preserve the uniqueness and the village by-the-sea.
At this point, Chevelle D. Nubin, City Clerk, swore in the following
individual:
Robert Goldstein, entered his résumé and qualifications into the
record,
stated he was invited to review this project by staff and after reviewing it does
not believe that the criteria have been met with regard to LDR Section 2.4.5(E). He
stated he believes this project has a detrimental impact on the neighboring developments
and residential developments. He stated the impact is not only because of the height and
density of the building but because of the traffic (which has not been studied in depth).
Mr. Goldstein stated this project is too intense a use for this site and area without fully
studying the other impacts to the neighboring residential developments and the road
infrastructure. In addition, Mr. Goldstein stated because of the size of the development,
he believes it will have a negative impact on development and redevelopment in the
surrounding area. He urged the Commission to do further research and reconsider the
density that is being proposed.
David Stevens, 321 Palm Trail, Delray Beach,
opposes the largeness of
the project and stated it does not fit the character of Delray Beach. He urged the
Commission to have the developer go back and make this a smaller project.
Elizabeth Vance, 50 East Road, Delray Beach,
urged the Commission to
reconsider this proposal. She stated there are three more large projects proposed in this
area and feels the traffic and the density will increase.
Alex Gomez,
stated he grew up in Delray Beach and feels a project like
this could benefit the stores on Atlantic Avenue and help bring in pedestrian traffic.
At this point, Chevelle D. Nubin, City Clerk, swore in the following
individual:
nd
Luca Bizzotto, 300 N.W. 22 Street, Delray Beach,
stated in his
opinion many of the negative points are about change and he feels Delray Beach has
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12/06/05
become the All America City because it has not been afraid to make a change. He feels if
we start to hinder these projects, the developers will go somewhere else to build. Mr.
Bizzotto stated right now we are the All America City because we are different from
Boca Raton and other surrounding cities.
Margie Kellmans, 46 Marine Way, Delray Beach,
stated once this
project is built it will look nothing like the architectural renderings. She stated this is a
huge project that does not fit in this area and stated the developer will still make money if
the project is smaller.
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Shirley Johnson, 701 N.W. 4 Street, Delray Beach,
strongly suggested
that this be taken back to the developers and see if they can incorporate what the citizens
believe is a village by-the-sea concept.
Kathy Fazio, 1118 Harbor Drive, Delray Beach,
opposes the project
and hopes the Commission will reconsider this project.
Harold Jones, owner of the Delray Inn and resident of Delray Beach,
stated he supports the project and noted that the economic growth will benefit not only
the plaza and the surrounding property everyone will benefit substantially from this
project.
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Kathy Degroot, 134 S.W. 5 Avenue, Delray Beach,
stated she is
opposed to this project and urged the Commission to not support this project.
Chuck Halberg, 4870 S. Classical Boulevard, Delray Beach,
supports
the project and sees this as a great element to the downtown.
Mary Walton, 905 Bond Way, Delray Beach,
urged the Commission to
reconsider the size of this project. She stated she is not opposed to having this property
redeveloped but reconsider the magnitude of this project.
Jayne King, 3400 Place Valencay, Delray Beach,
stated instead of
“village by-the-sea” she is hearing “pillage by-the-sea” and urged the Commission to
think carefully about what the decision is going to do for the future of Delray Beach. Ms.
King urged the Commission to balance out the wishes of the residents along with the
needs of the business community and come up with a smart solution to this dilemma.
There being no one else who wished to address the Commission regarding
the conditional use for Atlantic Plaza, the public hearing was closed. Mayor Perlman
thanked everyone from the public who spoke on this item this evening.
Mr. Weiner came forward and gave the following cross-examination.
Michael Weiner asked Mr. Dorling if the staff report is correct in its
conclusion. In response, Mr. Dorling stated that “yes” the staff report is correct.
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12/06/05
At this point, Mr. Weiner gave a brief rebuttal.
At this point, Mayor Perlman again thanked everyone for coming to the
meeting and investing their time on an important issue.
The City Manager expressed concern over two issues. One is
compatibility with the park and he stated on the park side he would be more comfortable
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if it were stepped back in the same manner it is from 7 Avenue so it does not
overshadow the park so much. Secondly, the City Manager stated in reviewing the list of
ten projects that have received conditional uses since 1999 with the single exception of
Worthing Place, the density being requested is higher than any other of these projects and
although they meet the conditions precedent to receiving an increase, he is not sure it is
justified at the level at which it has been requested. The City Manager stated there are
only three out of the ten that received more than 40 units per acre.
Mayor Perlman stated he does not feel that this is a discussion about
whether or not to develop the Atlantic Plaza but is an issue on how to do it and how to
maintain the ambience and character of the downtown.
Mr. Levinson stated the issue tonight is about whether or not to grant a
conditional use which will allow the applicant to go from 48 feet to 60 feet and a
conditional use to allow them to go from 38 units to 42.7 units to the acre. He stated the
surrounding area is not just the developable area of single family homes or multi-family
homes to the north or Federal Highway to the west but includes Veteran’s Park. He
expressed concern over this project having a detrimental affect on the park and stated
based on some of the expert testimony today, he believes this project may have a
significant detrimental affect on the surrounding areas.
Mrs. Archer stated she likes the project; however, expressed concern over
how it may overshadow Veteran’s Park and feels it may have a negative aspect to it. She
stated she would feel more comfortable if the project were appropriately set back. Mrs.
Archer also expressed concern that there have been various developments in the
community and the developer then sells that property to another developer and then
requests come back to the Commission requesting that additional changes be made. She
stated that if and when this project is approved, she suggested that all the approvals are
conditioned upon the same ownership being maintained and that if indeed the ownership
changed prior to it being built, that it comes back before the Commission.
The City Attorney stated this is not legally permissible because the zoning
approval goes with the land.
Mrs. Ellis stated she has lived in Delray Beach for approximately 35 years
and stated this is a great project; however, she expressed concern over Veteran’s Park.
She stated expert testimony was given this evening about development of the surrounding
neighborhoods but none of it addressed how this project is going to impact Veteran’s
Park. She stated she does not believe the Commission received the expert testimony they
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12/06/05
need to fully determine the impact on Veteran’s Park which she feels is essential to
Delray Beach and must remain intact and available to the residents.
Ms. McCarthy stated the architectural drawing is appealing and
outstanding. She stated the developer has adhered to the design guidelines and the step
backs which means instead of having a straight wall up and down there is one building,
then the next layer is pushed back, and so on so that it is not visible. She stated as this
project goes through the committees it has to go through and they are reviewing the
specifics of this plan she is certain that the people who sit on these committees will be
very sensitive to how people will get in and out of Veteran’s Park. Ms. McCarthy stated
when a structure is going to be put on a corner she has to think of the entire city and
looking at the impact of the immediate blocks and when she travels east and west on
Atlantic Avenue and because she knows there is a George Bush Boulevard and a Linton
Boulevard she has the ability to travel George Bush Boulevard to get to A-1-A or Linton
Boulevard. She stated everyone has the ability to do this as well. Ms. McCarthy stated
we have had smart and controlled growth in the City of Delray Beach and noted that there
is a period of smart growth at this time that will not be forever. Ms. McCarthy stated the
downtown is being developed so that the next decade from here you will never go back to
the days when the tumbleweeds went down the road. Ms. McCarthy stated there could be
four story buildings that are vacant because you do not have the people to support what is
in there and live there any longer. With regard to the infrastructure, she stated the city
has a capital budget which has been addressed in the improvement of the infrastructure
throughout the city because it was time to upgrade it. She stated hopefully every ten
years the infrastructure will be looked at and when it is deemed necessary to have the
dollars in the budget to continue doing it. Furthermore, Ms. McCarthy stated the
maintenance is imperative as well as the improvement.
The City Attorney stated Michael Weiner has approached her and has
indicated that he would like to address the park issue in their planning and it might result
in a lower density to some degree. If the Commission wishes to do so, we can postpone
the actual vote on this and if the Commission needs to hear other expert testimony for
themselves it would give the opportunity to come back and reopen the hearing for other
testimony regarding the park. The City Attorney stated Mr. Weiner’s proposal is that the
Commission not vote on this so they have a chance to re-work it and present something
that would not affect the park so greatly.
Mr. Levinson stated his comments were not solely regarding Veteran’s
Park but believes the proposed project does not meet LDR Section 2.4.5(E)(5) which
deals with significant detriment to the surrounding area.
Ms. McCarthy stated she would like the developer to address the citizens
concerns and make those modifications.
Mrs. Ellis stated she is in favor to postpone this item and give the
developer a chance to address the citizens concerns.
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12/06/05
Brief discussion by the Commission followed.
Mr. Dorling stated depending on the scale of the change it may have to go
through the Planning and Zoning Board.
Mrs. Archer moved to approve to postpone the conditional use request for
Atlantic Plaza, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows:
Ms. McCarthy – Yes; Mayor Perlman – No; Mrs. Ellis – Yes; Mrs. Archer – Yes; Mr.
Levinson – No. Said motion passed with a 3 to 2 vote, Mayor Perlman and
Commissioner Levinson dissenting.
At this point, the Commission took a five minute break.
At this point, the time being 9:51 p.m., the Commission moved to the duly
advertised public hearings portion of the agenda.
10.PUBLIC HEARINGS:
10.A. ORDINANCE NO. 79-05:
Privately initiated amendment to the Land
Development Regulations Section 4.6.9, “Off-Street Parking Regulations”, and Appendix
“A”, “Definitions”, to establish a parking fee and provide a definition for a public parking
facility and programmed public parking facility.
The caption of Ordinance No. 79-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA, OF THE
CITY OF DELRAY BEACH, AMENDING APPENDIX
“A”, BY ADDING DEFINITIONS OF A PUBLIC
PARKING FACILITY AND PROGRAMMED PUBLIC
PARKING FACILITY; AMENDING ARTICLE 4.6,
“SUPPLEMENTAL DISTRICT REGULATIONS” OF
THE LAND DEVELOPMENT REGULATIONS BY
AMENDING SECTION 4.6.9(E), “LOCATION OF
PARKING SPACES” BY CREATING A NEW
SUBSECTION 4.6.9(E)(4), “PARKING FACILITY
PAYMENT” TO ESTABLISH ALTERNATIVE
PROVISIONS FOR ACCOMMODATING REQUIRED
PARKING, WHEN NOT PROVIDED ON-SITE,
PROVIDING FOR RENUMBERING; PROVIDING A
SAVINGS CLAUSE, A GENERAL REPEALER
CLAUSE, AND AN EFFECTIVE DATE.
(The official record of Ordinance No. 79-05 is on file in the City Clerk’s
Office.)
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12/06/05
The City Attorney stated the ordinance has been changed in light of the
Commission comments last week so that it requires another first reading. The applicant
has requested that this be postponed until December 13, 2005 for a first reading.
10.B. ORDINANCE NO. 56-05 (ADOPTION HEARING FOR
COMPREHENSIVE PLAN AMENDMENT 2005-2):
Consider on second reading an
ordinance adopting Comprehensive Plan Amendment 2005-2 and associated Future Land
Use Map (FLUM) amendments, Amendment 2005-2 includes:
The caption of Ordinance No. 56-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
ADOPTING COMPREHENSIVE PLAN AMENDMENT
2005-2, PURSUANT TO THE PROVISIONS OF THE
“LOCAL GOVERNMENT COMPREHENSIVE
PLANNING AND LAND DEVELOPMENT
REGULATION ACT”, FLORIDA STATUTES SECTION
163.3161 THROUGH 163.3243, INCLUSIVE; ALL AS
MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”
ENTITLED “COMPREHENSIVE PLAN AMENDMENT
2005-2” AND INCORPORATED HEREIN BY
REFERENCE; PROVIDING A SAVING CLAUSE, A
GENERAL REPEALER CLAUSE, AND AN EFFECTIVE
DATE.
(The official record of Ordinance No. 56-05 is on file in the City Clerk’s
Office.)
1.Text Amendments:
a.Future Land Use Element – Modification of the description of
the Medium Density FLUM designation to include provisions
for increased density to 24 units per acre for the Carver
Estates Overlay District and to a maximum of 18 units/acre
within the boundaries of other special overlay districts to
accommodate higher density residential development subject
to the provision of workforce housing.
b.Future Land Use Element – Modification of the description of
the Transitional FLUM designation to include provisions for
increased density to a maximum of 18 units/acre within the
boundaries of special overlay districts to accommodate higher
density residential development subject to the provision of
workforce housing.
c.Future Land Use Element – Modification of the description of
the General Commercial FLUM designation to include
provisions for increased density to a maximum of 18
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12/06/05
units/acre within the boundaries of special overlay districts to
accommodate higher density residential development subject
to the provision of workforce housing.
d.Future Land Use Element – Add policy regarding creation of
an overlay district for the Congress Avenue Corridor to
encourage the development of Class A corporate offices.
e.Future Land Use Element – Add new objectives and policies
to support the City’s workforce housing initiative.
f.Transportation Element – Add policy regarding the change of
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N.E./S.E. 1 Streets from one-way back to two way traffic.
g.Transportation Element – Add policy regarding enhancement
thth
of the US-1 corridor (N.E./S.E. 5 Avenue and N.E./S.E. 6
thth
Avenue) between N.E. 4 Street and S.E. 4 Street through
beautification and the provision of improved parking and
pedestrian circulation.
h.Transportation Element – Add policy to seek the reduction of
the ultimate right-of-way for Federal Highway from 120 feet
to 102 feet, north of George Bush Boulevard.
i.Housing Element – Revise “Analysis” section to update
information pertaining to historically significant housing.
j.Open Space and Recreation Element – Update “Analysis”,
“Conclusions” and “Needs and Recommendations” sections to
reflect updated conditions and to be consistent with the
adopted City of Delray Beach Parks and Recreation System
Master Plan.
k.Capital Improvement Element – Modify Table CI-CIP (5-
Year Capital Improvements Schedule for Projects > $25,000)
to reflect adoption of the FY 2006-2010 Capital Improvement
Program.
l.Capital Improvement Element – Modification of Table SD-
CIP. This table is the School District’s Six Year Capital
Improvement Schedule referenced in CIP Element Policy A-
8.3.
m.Public Schools Facilities Element – Updated Concurrency
Map Series for the School District (Maps PS 1.1; PS 2.1; PS
3.1; and PS 3.2).
2.Future Land Use Map Amendments:
Future Land Use Map amendment from LD (Residential Low
a.
Density 0-5 du/ac) in part and GC (General Commercial) in
Bexley
part, to OS (Open Space) for the public park within the
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12/06/05
Park Subdivision
located on the east side of Military Trail
north of the L-31 Canal.
Future Land Use Map amendment from County CH-8
b.
(Commercial High with an underlying High Residential, 8
units per acre) to City GC (General Commercial), in part, and
Valero Gas Station, Watkins
TRN (Transitional), in part for
Motor Lines, and Public Self Storage, Inc.
, located on the
west side of Military Trail, 100 feet north of Conklin Drive.
Future Land Use Map amendment from RDA-3
c.
(Redevelopment Area #3) to MD (Residential Medium
Lee Burke
Density 5-12 du/ac) for the property, located on the
th
north side of Linton Boulevard, 660 feet west of S.W. 4
Avenue.
Future Land Use Map amendment from RDA-3
d.
(Redevelopment Area #3) to MD (Residential Medium Density
Lintco
5-12 du/ac) for multi-family site, located at the
th
northwest corner of Linton Boulevard and S.W. 4 Avenue.
Future Land Use Map amendment from County HR-8 (High
e.
Residential -8 du/ac) to City MD (Medium Density Residential
5-12 du/ac) for Gramercy Square II, located on the west side of
Military Trail, approximately 700 feet south of Atlantic
Avenue.
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Ron Hoggard, Senior Planner, entered the Planning and Zoning
Department project file #2005-267, #2005-277, #2005-287, #2005-268, #2005-260,
#2005-261, #2005-291, #2005-292.
Mr. Hoggard stated Comprehensive Plan Amendment 05-2 was reviewed
on first reading on August 2, 2005 and transmitted to the Florida Department of
Community Affairs for their review. The Amendment included three (3) City initiated
Future Land Use Map Amendments, one (1) privately initiated Future Land Use Map
Amendment, and nine (9) text changes. DCA staff reviewed the transmitted amendment
and issued the attached Objections, Recommendations, and Comments (ORC) Report on
October 6, 2005. The ORC report contains three objections dealing with issues related to
the proposed modification of the descriptions of Medium Density, Transitional and
General Commercial Land Use Categories to allow densities to exceed 12 units per acre.
On September 20, 2005, the City Commission approved the Annexation, small scale
FLUM Amendment and Rezoning for Gramercy Square II. However, DCA has since
determined that the FLUM Amendment does not meet the requirements for small scale
amendments and needs to go through the regular (twice a year) amendment process. This
was due to the potential density above the 10 du/ac in the proposed MD FLUM
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12/06/05
designation. To expedite the process, this FLUM amendment was added to
Comprehensive Plan Amendment 2005-2. Mr. Hoggard stated several other changes to
the Amendment are also being made prior to adoption the City Commission approved the
revised Amendment on first reading of the Ordinance on November 15, 2005. In addition
to the above changes, an additional Future Land Use Element Objective, with Policies, is
being added to support the City’s Workforce Housing initiatives.
At its meeting of November 21, 2005, the Planning and Zoning Board
considered the ORC Report and the Board voted 6-0 (Borchardt absent) to recommend
that the City Commission adopt Comprehensive Plan Amendment 2005-2 on second and
final reading and that the response to the ORC Report be transmitted to the State with the
adopted amendment. Mr. Hoggard briefly reviewed the ORC Report and the three
objections that related to the overlay districts.
Mayor Perlman declared the public hearing open.
Jim Smith, 1225 S. Ocean Boulevard, Delray Beach, suggested that the
text in Item 1.G. be changed from “beautification and the provision of improved parking
and pedestrian circulation” to “beautification, wider sidewalks, a wider standard width
parking lane and bicycle lanes.”
There being no one else from the public who wished to address the
Commission regarding Ordinance No. 56-05, the public hearing was closed.
Prior to the vote, Mr. Dorling stated staff talked to the Florida Department
of Transportation (FDOT) on this issue and the language as stated does not preclude
putting in bicycle lanes as they have indicated they are going to mandate. Therefore,
staff does not see the need for this change.
Mr. Levinson moved to approve Ordinance No. 56-05 adopting
Comprehensive Plan Amendment 2005-2, seconded by Mrs. Ellis. Upon roll call the
Commission voted as follows: Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs. Archer –
Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes. Said motion passed with a 5 to 0 vote.
10.C. THIS ITEM HAS BEEN POSTPONED TO JANUARY 3, 2006 DUE
TO FURTHER ADVERTISING.
10.D. ORDINANCE NO. 60-05:
Rezoning from R-1-A (Single Family
Residential) to RM (Medium Density Residential) for a 7.05 acre parcel of land for
Lintco Properties, generally located at the northwest corner of Linton Boulevard and
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(Quasi-Judicial Hearing)
S.W. 4 Avenue.
The caption of Ordinance No. 60-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
REZONING AND PLACING LAND PRESENTLY
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12/06/05
ZONED R-1-A (SINGLE FAMILY RESIDENTIAL)
DISTRICT TO RM (MEDIUM DENSITY
RESIDENTIAL) DISTRICT; SAID LAND BEING A
PARCEL LOCATED AT THE NORTHWEST
TH
CORNER OF LINTON BOULEVARD AND SW 4
AVENUE AS MORE PARTICULARLY DESCRIBED
HEREIN; AMENDING "ZONING MAP OF DELRAY
BEACH, FLORIDA, APRIL 2005"; PROVIDING A
GENERAL REPEALER CLAUSE, A SAVING
CLAUSE, AND AN EFFECTIVE DATE.
(The official record of Ordinance No. 60-05 is on file in the City Clerk’s
Office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Mayor Perlman asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, stated the project files
have been entered into the record with respect to the FLUM amendment. Mr. Dorling
th
stated this is a twelve parcel piece of property that was in the S.W. 4 Redevelopment
Plan Area. The Redevelopment Plan Area #3 Future Land Use Map designation and R-1-
A (Single Family Residential) zoning designation were retained as a “holding” zone until
a specific development proposal was submitted. A development proposal has been
submitted to construct a multiple family development that will include workforce housing
on the properties.
At its meeting of July 18, 2005, the Planning and Zoning Board held a
public hearing in conjunction with the FLUM amendment and Rezoning. There was no
public testimony and after discussing the FLUM amendment and rezoning, the Board
voted 6-0 to recommend approval.
Mayor Perlman declared the public hearing open. There being no one
from the public who wished to address the Commission regarding Ordinance No. 60-05,
the public hearing was closed.
Mrs. Archer moved to adopt Ordinance No. 60-05 on Second and FINAL
Reading, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows:
Mrs. Ellis – Yes; Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor
Perlman – Yes. Said motion passed with a 5 to 0 vote.
10.E. ORDINANCE NO. 76-05:
Rezoning from County GC/SE (General
Commercial/ Special Exception) to GC (General Commercial) for a 0.96 acre parcel of
land for Valero Gas Station, located on the west side of Military Trail, 100 feet north of
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12/06/05
(Quasi-Judicial Hearing)
Conklin Drive.
The caption of Ordinance No. 76-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
ESTABLISHING INITIAL ZONING OF GC (GENERAL
COMMERCIAL) DISTRICT; SAID LAND BEING A
PARCEL LOCATED ON THE WEST SIDE OF
MILITARY TRAIL, 100 FEET NORTH OF CONKLIN
DRIVE AS MORE PARTICULARLY DESCRIBED
HEREIN; AMENDING "ZONING MAP OF DELRAY
BEACH, FLORIDA, APRIL 2005"; PROVIDING A
GENERAL REPEALER CLAUSE, A SAVING CLAUSE,
AND AN EFFECTIVE DATE.
(The official record of Ordinance No. 76-05 is on file in the City Clerk’s
Office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Perlman asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, stated this is a 0.96 acre
site which contains Valero Gas Station which was annexed into the city via Ordinance
No. 63-05. A related Future Land Use Change from County CH-8 (Commercial High
with an Underlying High Residential, 8 du/ac) to City GC (General Commercial) is
accompanying this request and is being processed as part of Comprehensive Plan 2005-2.
At its meeting of July 18, 2005, the Planning and Zoning Board held a
public hearing in conjunction with the request and after discussing the proposal, the
Board voted unanimously to recommend approval based upon finding the request is
consistent with the Comprehensive Plan and positive findings with respect to LDR
Sections 3.1.1, 3.2.2, and 2.4.5(D)(5).
Mayor Perlman declared the public hearing open. There being no one
from the public who wished to address the Commission regarding Ordinance No. 76-05,
the public hearing was closed.
Ms. McCarthy moved to adopt Ordinance No. 76-05 on Second and
FINAL Reading, seconded by Mrs. Ellis. Upon roll call the Commission voted as
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12/06/05
follows: Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman
– Yes; Mrs. Ellis – Yes. Said motion passed with a 5 to 0 vote.
10.F. ORDINANCE NO. 77-05:
Rezoning from County GC/SE (General
Commercial/ Special Exception) to SAD (Special Activities District) for a 4.72 acre
parcel of land for Watkins Motor Lines, located on the west side of Military Trail, 430
(Quasi-Judicial Hearing)
feet north of Conklin Drive.
The caption of Ordinance No. 77-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
ESTABLISHING INITIAL ZONING OF SAD (SPECIAL
ACTIVITIES DISTRICT); SAID LAND BEING A
PARCEL LOCATED ON THE WEST SIDE OF
MILITARY TRAIL, 430 FEET NORTH OF CONKLIN
DRIVE AS MORE PARTICULARLY DESCRIBED
HEREIN; AMENDING "ZONING MAP OF DELRAY
BEACH, FLORIDA, APRIL 2005"; PROVIDING A
GENERAL REPEALER CLAUSE, A SAVING CLAUSE,
AND AN EFFECTIVE DATE.
(The official record of Ordinance No. 77-05 is on file in the City Clerk’s
Office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Mayor Perlman asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, stated the project files
have already been entered into the record as part of the Comprehensive Plan amendment
2005-2. Mr. Dorling stated this is 4.72 acre site which contains the Watkins Truck
Terminal which was annexed into the city via Ordinance No. 58-05 approved by the City
Commission on August 16, 2005. A related Future Land Use Change from County CH-8
(Commercial High with an Underlying High Residential, 8 du/ac) to City TRN
(Transitional) is accompanying this request and is being processed as part of
Comprehensive Plan 2005-2. This is the related zoning from County designation CG/SE
(Commercial General Special Exception) to City SAD (Special Activities District).
At its meeting of July 18, 2005, the Planning and Zoning Board held a
public hearing in conjunction with this request. After discussing the proposal, the Board
voted unanimously to recommend approval.
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12/06/05
Mrs. Ellis moved to adopt Ordinance No. 77-05 on Second and FINAL
Reading, seconded by Mrs. Archer. Upon roll call the Commission voted as follows:
Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs.
Archer – Yes. Said motion passed with a 5 to 0 vote.
10.G.ORDINANCE NO. 78-05:
Rezoning from County GC/SE (General
Commercial/ Special Exception) to SAD (Special Activities District) for a 3.45 acre
parcel of land for Public Self Storage, Inc, located on the west side of Military Trail, 270
(Quasi-Judicial Hearing)
feet north of Conklin Drive.
The caption of Ordinance No. 78-05 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
ESTABLISHING INITIAL ZONING OF SAD
(SPECIAL ACTIVITIES DISTRICT); SAID LAND
BEING A PARCEL LOCATED ON THE WEST SIDE
OF MILITARY TRAIL, 270 FEET NORTH OF
CONKLIN DRIVE AS MORE PARTICULARLY
DESCRIBED HEREIN; AMENDING "ZONING MAP
OF DELRAY BEACH, FLORIDA, APRIL 2005";
PROVIDING A GENERAL REPEALER CLAUSE, A
SAVING CLAUSE, AND AN EFFECTIVE DATE.
(The official record of Ordinance No. 78-05 is on file in the City Clerk’s
Office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Mayor Perlman asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, stated this is a 3.45 site
which contains the Public Self Storage Facility and was annexed into the city via
Resolution No. 66-05 approved by the City Commission at its meeting of August 16,
2005. A related Future Land Use Map designation change from County CH-8
(Commercial High with an Underlying High Residential, 8 du/ac) to City TRN
(Transitional) is accompanying this request and is being processed as part of
Comprehensive Plan 2005-2. This is the associated rezoning from the County
designation of CG/SE (Commercial General Special Exception) to City SAD (Special
Activities District).
At its meeting of July 18, 2005, the Planning and Zoning Board held a
public hearing in conjunction with this request. After discussing the proposal, the Board
voted unanimously to recommend approval.
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12/06/05
Terri Myers, representing Public Storage, stated Public Storage objects to
the new rezoning on the basis of the loss of ability to repackage, develop the property,
update, modernize, and expand in addition to resulting loss of future potential revenue to
maintain and reinvest in their properties.
Brief discussion followed between the applicant and staff.
Mr. Dorling stated the current use of the property is the one that is being
allowed by the SAD ordinance. He stated this project was part of a water service
agreement executed in 1984 with the caveat that any kind of review would have to come
in and go through the City’s review process as well as the County’s to verify that if and
when they were annexed they would be consistent with the LDR’s.
Mr. Levinson moved to adopt Ordinance No. 78-05 on Second and FINAL
Reading, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows: Ms.
McCarthy – Yes; Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs. Archer – Yes; Mr.
Levinson – Yes. Said motion passed with a 5 to 0 vote.
Item 11, Comments and
At this point, the Commission moved to
Inquiries on Non-Agenda Items from the City Manager and the Public.
11.A.City Manager’s response to prior public comments and inquiries.
With regard to a previous concern expressed over the wording on the first
page of the agenda and how staff handles public comments on regular agenda items, the
City Manager stated the wording was changed in August 2005 to be identical to what is
in the Commission’s Rules of Procedure. The City Manager stated he agrees that the
wording is perhaps not clear to someone who picks up the agenda and is not familiar with
how the City normally operates. Staff will review and see if they can make the language
clearer. He stated the City Attorney advised staff they will have to bring this back to the
Commission as an amendment to the Commission’s Rules of Procedures so that the
language on the front page of the agenda is identical.
11.B.From the Public.
11.B.1.Jim Smith, 1225 S. Ocean Boulevard, Delray Beach,
speaking as
Chairman and Founder of S.A.F.E. (Safety As Floridians Expect), stated S.A.F.E. is an
organization of over 13,000 email members whose mission is to make Florida roadways
safer for motorists, pedestrians, and cyclists. He stated last year Representative Anne
Gannon drafted a Bill for S.A.F.E. that was sponsored by Senator Mandy Dawson and
was voted on by Representative Adam Hasner along with many other Palm Beach
County Legislators and the State completed the first ever Bicycle Facilities Study. Mr.
Smith stated two weeks ago S.A.F.E. went back to the Palm Beach County Legislators
and asked for a Pedestrian Study. Mr. Smith read into the record S.A.F.E.’s
recommendations to help make Florida’s roadways the most bicycle, pedestrian, and
motorist friendly State in the United States and asked the Commission for their support.
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12/06/05
Item
At this point, the time being 10:26 p.m., the Commission moved to
9.B. of the Regular Agenda.
9.B.APPEAL OF THE SITE PLAN REVIEW AND APPEARANCE
BOARD ACTION/BERMUDA GARDENS:
Appeal of the Site Plan Review and
Appearance Board’s decision regarding Bermuda Gardens Townhomes, located at 924
(Quasi-Judicial Hearing)
Bermuda Gardens Road and South Ocean Boulevard.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Perlman asked the Commission to disclose their ex parte
communications. Mrs. Ellis stated she spoke with Marie Horenburger. Mr. Levinson,
Mrs. Archer, Mayor Perlman, and Ms. McCarthy had no ex parte communications to
disclose.
Paul Dorling, Director of Planning and Zoning, entered the Planning and
Zoning Department project file #2005-318 into the record.
Mr. Dorling stated the subject property consists of two platted lots,
totaling 0.33 acres (14,463 square feet) and contains a one-story single family residence.
The property is presently of MD (Medium Density Residential, 5-12 dwelling units per
acre). He stated while the prevailing land use pattern on the street is single family, the
entire street is zoned RM (Medium Density Residential) and the adjacent RM properties
to the north and south are also zoned RM. This application was appropriately analyzed
under the RM zone designations and the Site Plan review and Appearance Board made
the appropriate findings under the related LDR Sections.
The appeal has been filed and is in the City Commission documentation.
Mr. Dorling referenced a letter attacking the findings in the staff report and stated the
author of the letter has not sufficiently reviewed the LDR’s to support the assumptions
made in this appeal. With respect to the applicability of the LDR sections, under
I
performance standards LDR Section 4.4.6()(2) it acknowledges that some of the
referenced standards may not be entirely applicable to small infill type residential
properties. For those types of projects the ultimate density should be based upon the
attainment of those standards which are applicable as well as development stability to
meet or exceed minimum requirements. Mr. Dorling stated some of these do not apply
because they are related to small infill type residential properties as this project is a 3 unit
townhouse development and therefore some of the performance standards do not apply.
He stated that the appeal letter indicates that all seven performance standards need to be
met and this is not correct. Mr. Dorling stated only those performance standards that are
applicable to projects that are not infill small developments are applicable, and only a
portion of those have to be complied with because they are not requesting the maximum
density. Mr. Dorling stated four of the seven performance standards do not apply and are
appropriately identified in the staff report. He stated the staff report and the Site Plan
Review and Appearance Board (SPRAB) made their appropriate findings because this
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12/06/05
project meets the definition of open space.
Michael W. Moskowitz, (appellant) Attorney with Moskowitz,
Mandell, Salim & Simowitz, P.A., representing Robin and Ellen Sussman (residents
on this street),
stated there are errors contained in the staff report adopted by the Board
in its entirety different from what has been explained by staff this evening. He
distributed photos to the Commission showing the street and the character of the single
family homes that are on both the north and south sides of the street. He stated there are
no multi-family homes on Bermuda Gardens Road. He stated what is being proposed is
not compatible with the single family homes and does not comply with Housing Element
Policy A-12.3 as it will result in a degradation of the neighborhood because it now inserts
a multi-family component into a single family neighborhood. Mr. Moskowitz stated staff
discussed the performance criteria and staff correctly pointed to a provision in the
performance criteria that states “there may be certain infill residential projects in which
the performance criteria are not applicable.” However, he stated staff did not address
certain LDR regulations that are contained in the report adopted by the Board that are not
part of that exception. That exception applies to the seven performance criteria. He
stated a waiver of the 40 foot visibility triangle at this intersection is an unsafe situation
for cars, pedestrians, bicyclists and noted a waiver should not have been granted. He
referred to LDR Section 4.6.1(4) Visibility at Intersections and stated incorrect criteria
were utilized in the granting of the waiver and for that reason alone this appeal must be
denied. In addition, Mr. Moskowitz stated there are deed restrictions on the properties
that were placed by a common owner many years ago and those deed restrictions restrict
utilization of this property to a single family home.
Beth McOwen, 917 Bermuda Gardens Road, Delray Beach,
stated
Bermuda Gardens Road is 415 feet long and is between A-1-A and the Intracoastal
Waterway. She stated Bermuda Road has no cul-de-sac and commented that there is no
way for service vehicles to turn around and in order for them to turn around they do so in
the private driveways. She stated the garbage backs up down the street and noted that
Bermuda Gardens Road is a private road. She stated the site plan does not address the
sub-standard road that is a private road that residents on this street pay to have paved.
Ms. McOwen stated that there is period of 8 feet that is paved road and for the traffic
problems alone this proposed project should be rejected.
Todd Armbruster, Attorney with Moskowitz, Mandell, Salim &
Simowitz, P.A., 800 Corporate Drive, Suite #500, Fort Lauderdale, FL 33334,
stated
this particular development cannot meet those performance standards and because they
cannot meet the performance standards they have not satisfied the requirements of the
LDR’s and this project should have been denied.
Jason Mankoff, Attorney with Weiner & Aronson, P.A., 102 N.
Swinton Avenue, Delray Beach, speaking on behalf of the developer (the original
applicant) Bermuda Gardens Townhomes L.L.C.,
stated the property is located in the
RM (Medium Density Residential) zoning district and has a Future Land Use designation
of MD (Medium Density). He stated this is not the typical single family neighborhood
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12/06/05
but instead is a street that has single family homes on it. Mr. Mankoff stated they adopt
the findings in the staff report and have met the substantial competent evidence to meet
the open space requirements of LDR Section 4.3.3(O)(4)(d), the performance standard
I
requirements of Section 4.4.6() and Section 4.6.14(A)(2) concerning the waiver for a site
visibility triangle. Furthermore, he stated a letter from the architect is enclosed in the
City Commission documentation which reinforces the staff report and provides further
substantial competent evidence. He strongly believes that the appeal should be denied
and he urged the Commission uphold SPRAB’s decision.
Mr. Moskowitz (appellant) gave a brief rebuttal and stated that the staff
report does not address “shall not create an unsafe situation.” Mr. Moskowitz stated in
order for the waiver to be granted, there must be an affirmative finding that all four
criteria have been met and commented about Item C in the staff report. He stated that the
assertion of staff and the developer is what they find is because of the small size of the
property it is not feasible to accommodate a large range and recreational facilities on the
site and therefore it is reasonable to “exempt the development from this standard.” Mr.
Moskowitz stated theatrically a waiver could have been requested and staff could have
analyzed it and determined that in fact a waiver should be granted, however, that was not
followed. Therefore, Mr. Moskowitz stated those criteria have not been met and they
must be met.
Mr. Mankoff stated they do meet the requirement for the open space and
the landscaping and the open space based on the aesthetic value and it is not an
exemption. With regard to the waiver, he stated there have been numerous waivers on
much busier streets particularly in the downtown area and the CBD (Central Business
District) where there are higher chances of accidents or other unsafe situations. Mr.
Mankoff stated they do meet all four requirements.
Mr. Dorling stated there was a reference made as to why certain standards
are not applicable. He stated in the LDR’s it talks about for small infill projects these
aren’t applicable. With regard to open space, Mr. Dorling stated not less than 25% total
area shall be provided for recreation or some other suitable purpose and there has been
evidence that there is a suitable purpose whether over and above recreation and further
open space and recreation element policy A-3.1 states that tot lots recreation areas shall
be provided for new housing developments. This requirement may be waived or
modified for residential developments located in the downtown area or for infill projects
having fewer than 25 units. Mr. Dorling stated any single family home that is developed
on this site can also be three stories and 35 feet.
The City Attorney stated the Commission will have to review a Board
Order and she informed the Commission that their rules state that the Commission
meeting shall be conducted to 11:00 p.m. unless extended by a majority of the
Commission.
Mr. Levinson moved to approve to extend the December 6, 2005 City
Commission meeting to no time certain, seconded by Mrs. Ellis. Upon roll call the
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12/06/05
Commission voted as follows: Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs. Archer –
Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes. Said motion passed with a 5 to 0 vote.
Mrs. Archer expressed concern over this project and stated there is a tiny
area that has been built up all around it and noted if this project is built then it will be the
demise of the neighborhood.
The City Attorney reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Levinson moved to approve the Board Order as presented by the City
Attorney, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows: Mrs.
Ellis – Yes; Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor
Perlman – Yes. Said motion passed with a 5 to 0 vote.
9.C.APPEAL OF THE SITE PLAN REVIEW AND APPEARANCE
BOARD ACTION/SEAGATE HOTEL AT ATLANTIC PLACE:
Appeal of the Site
Plan Review and Appearance Board’s decision regarding the Seagate Hotel at Atlantic
Place, located on the south side of East Atlantic Avenue between Venetian Drive and
(Quasi-Judicial Hearing)
Gleason Street.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Perlman asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, stated on September 24,
2003, the Site Plan Review and Appearance Board (SPRAB) approved a Class V site
plan and landscape plan associated with Atlantic Place development proposal, which
consisted of the demolition of the existing commercial and multiple family structures and
construction of two four-story mixed-use floor area; 10,540 square feet of retail floor
area; and 18,000 square feet of office floor area. The south building contained twelve
(12) condominiums; 9,080 square feet of retail floor area; and a five level parking garage.
At its meeting of July 27, 2005, SPRAB approved a Class III site plan
modification for the conversion of the 24 condominium units and 18,000 square feet of
office floor area to hotel rooms/suites; reconfiguration of the floor plan in the north
building to include 6,647square feet of retail, 5,473 square feet of restaurant, a hotel
lobby with an associated 700 square foot office, 893 square foot conference/party room
and 86 hotel rooms; reconfiguration of the floor plan in the south building to include
2,586 square feet of retail. 1,802 square foot housekeeping area, a 4,406 square foot spa,
and 18 hotel rooms; and construction of pedestrian sky walks between the north and
ndrdth
south buildings on the 2, 3 and 4 stories.
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12/06/05
Staff recommends that the extension should be granted by granting the
applicant’s appeal of SPRAB’s denial. Mr. Dorling stated the findings of fact were not
made by SPRAB and they did deny the appeal and the appellant is here today to have that
decision overturned.
Michael Weiner, Attorney with Weiner & Aronson, P.A., 102 N.
Swinton Avenue, Delray Beach speaking on behalf of HHC Atlantic, LLC (the
owner of the project),
stated the project before the Commission is here as a result of the
action of SPRAB. At the hearing, SPRAB declined to grant an extension to the site plan,
landscape plan, and architectural plan for the project previously received in October 2003
with a modification granted in July 2005. The applicant has appealed the Board’s action
on the basis of a letter they timely submitted and as staff pointed out because the proper
standard of law and findings were not made. Mr. Weiner referred to Section 2.4.4(D),
2.4.4(E), 2.4.4(F) of the LDR’s concerning the extension of site plans and the second
argument relates to the very definition of the words development approval as set forth in
the LDR’s. He distributed a booklet to the Commission and gave a brief presentation.
Alan Ciklin, Attorney with Boose, Casey, Ciklin, Lubitz, Martens,
McBane & O’Connell, representing Bankoff, LLC (owns property across the street
within 500 feet),
stated they have been determined to be an affected party. He stated
they appeared at the original site plan approval and were also a party before the Site Plan
Review and AppearanceBoard (SPRAB) when this matter was considered for an
extension. He stated the original site plan was approved over two years ago (September
24, 2003) and it has expired. Mr. Ciklin gave a brief presentation and stated the first way
to establish a project requires that improvements representing 25% of the total cost of all
improvements have been constructed; construction has commenced. Mr. Ciklin stated if
the Commission chooses to grant an extension it should be under the “no construction”
provision.
Mayor Perlman stated if anyone from the public would like to speak in
favor or in opposition of this item, to please come forward at this time.
Dan Carter, member of SPRAB,
stated SPRAB reviewed this project
for approximately 2½ hours under this extension request and reviewed the three standards
very carefully and found that the project did not meet the 25% of construction
improvements as well as some of the standards that were required.
Bob Spavero, speaking on behalf of the Beach Property Owners’
Association (BPOA),
stated every effort has been made not to adopt the new design
guidelines which they feel are very important for a major project like this on the beach
side. He stated some of the conditions that are listed beyond the control of the developer
were known to the developer way before he purchased the property.
There being no one else from the public who wished to give testimony
on this item, the public hearing was closed.
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12/06/05
At this point, Mr. Dorling and Mr. Weiner, and Mr. Ciklin gave their
rebuttal statements.
Mr. Levinson commented about the term “construction commenced”.
Ms. McCarthy stated years ago the Commission sat at the dais and took
the time to make interpretation as to what our definitions in the city meant.
The City Attorney reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Levinson moved to approve the Board Order as presented by the City
Attorney, seconded by Mrs. Archer. Upon roll call the Commission voted as follows:
Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes;
Mrs. Ellis – No. Said motion passed with a 4 to 1 vote, Mrs. Ellis dissenting.
9.D. APPEAL OF THE SITE PLAN REVIEW AND APPEARANCE
BOARD ACTION/HOTEL VISTA DEL MAR:
Appeal of the Site Plan Review and
Appearance Board August 8, 2001 decision regarding approval of a Class V Site
Development Plan, Landscape Plan, and Elevations associated with the Hotel Vista Del
Mar, located approximately 300 feet south of Atlantic Avenue on the west side of Ocean
(Quasi-Judicial Hearing)
Boulevard (State Road A-1-A).
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Perlman asked the Commission to disclose their ex parte
communications. Mr. Levinson stated he spoke with David Schmidt. Mayor Perlman
stated he had a conversation with David Schmidt. Mrs. Ellis stated she spoke with David
Schmidt. Mrs. Archer stated she received a telephone message from David Schmidt but
did not actually talk to him, and Ms. McCarthy stated she spoke with David Schmidt.
Paul Dorling, Director of Planning and Zoning, entered the Planning and
Zoning project file #2004-091 and #2001-008 into the record.
Mr. Dorling stated this is a consideration of an appeal of the Site Plan
Review and Appearance Board’s (SPRAB) approval of a Class V site plan, landscape
plan, and architectural elevations for the Hotel Vista Del Mar. SPRAB’s actions were
taken on June 20, July 11 and August 8, 2001. The actions were appealed on August 20,
2001 by Michael Weiner, attorney for Boston’s Restaurant (owner of property
immediately to the north). The City Commission considered the appeal on September 4,
2001 at which time the Commission granted the appeal and reversed SPRAB’s approval
on a 4 to 1 vote. The City Commission reconsidered the request at their meeting of
October 2, 2001 at which time they reaffirmed their original action on a 3 to 2 vote. The
applicant for Hotel Vista Del Mar appealed the Commission’s action to the Circuit Court.
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12/06/05
After consideration, the Circuit Court remanded the item back to the City Commission
for reconsideration as City Commission failed to make findings of fact as required by the
local ordinance (LDR Sections 3.1.1 and 2.4.5(F)(5)).
The development proposal includes the demolition of the Bermuda Inn, a
20 room, two-story motel (constructed in 1968) along with the associated pool and
parking. The new hotel has a total of 70 rooms and a private gym/spa. There are a total
of 50 parking spaces accommodated within the building on the ground floor and below
grade and the structure will have an overall height of 48 feet. The development proposal
was considered by SPRAB on June 20, July 11, and August 8, 2001. During the initial
SPRAB consideration, staff expressed concerns relating to height, loading, parking
layout, and general compatibility of the proposal. In the subsequent meetings, the
applicant took significant steps to address staff concerns. The staff report also supported
three minor waiver requests, which included waivers to: (1) LDR Sections
4.6.9(D)(3)(c)(1) to reduce the required stacking distance for the Salina Avenue driveway
entrance from 20 feet to 14 feet, (2) LDR Section 4.16.14(A) to reduce the visibility
triangle at the Salina Avenue driveway entrance from 20 feet to 10 feet and the Ocean
Boulevard driveway entrance from 20 feet to 8 feet, (3) LDR Section 6.1.3(B) to
eliminate the required sidewalk along Salina Avenue.
At its meeting of August 8, 2001, SPRAB approved a Class V site
development plan, waivers, landscape plan and architectural design elements associated
with the Hotel Vista Del Mar. There was public testimony in opposition to the request.
The objections mainly related to the size and mass of the proposed structure. In addition,
concerns with the zero setback at the northeast corner of the site plan and its potential
impacts on the redevelopment of the property to the north were noted. Future
redevelopment of the site (Boston’s Restaurant) with a similar zero setback would
potentially block the ocean view for ½ of the hotel rooms. The Board discussed these
points at length. During discussions it was acknowledged that the proposal did meet the
current regulations which allow a zero setback and the Board made positive findings with
respect to the site plan, landscape elevations and associated waivers. The Board also
made appropriate findings with respect to the internal requests. On August 20, 2001,
SPRAB’s action was appealed by Michael Weiner, attorney for Perry DonFrancisco
owner of Boston’s Restaurant (property immediately to the north). The proposed basis of
the appeal is that the actions taken by SPRAB were inconsistent with the Comprehensive
Plan, LDR’s and the Laws of the State of Florida. The relief being sought is that the
approval of the Site Plan, Landscape Plan and Architectural Elevations be reversed and
denied.
David Schmidt (appellant representing Boston’s Inc. and its appeal of
SPRAB’s 2001 approval of the site plan for the Hotel Vista Del Mar),
gave a brief
PowerPoint presentation and submitted a notebook to the Commission. He stated the
Commission has a responsibility to the community to examine the potential on
development and redevelopment as it will affect property values including the potential
for failure of this project if Boston’s develops to its full development potential.
- 35 -
12/06/05
Daniel P. Hrabko, Principal in the Real Estate Appraisal Firm of Calloway
and Price and resides at 1674 Park Tree Place, Delray Beach, briefly spoke about the
property values and stated a redevelopment of Boston’s will devalue the neighboring
properties.
John Carleen, Urban Design Studio, briefly discussed the loading, parking,
compatibility and visibility triangle waivers.
David Schmidt stated the design as proposed is not compatible and
harmonious with either the adjacent properties or the city as a whole. In addition, he
stated there has been expert testimony that the design as proposed will have a negative
impact on the potential redevelopment of Boston’s property and there are code provisions
in the code to protect people like his client so that their property interests are protected
just as well as the person who wants to develop adjoining property.
Mark Rothenberg, Attorney with Siemon & Larsen, P.A., 433 Plaza
Real, Suite #339 (Mizner Park), Boca Raton,
stated he requested 1 ½ hours to speak
and asked that the Commission conduct a “de novo review” of the August 8, 2001
SPRAB approved plans for Vista Del Mar per his letter. Due to the length of the
meeting, he does not anticipate taking that long because the appeal that was originally
filed in this case simply said that they were inconsistent with the Code and
Comprehensive Plan and did not specify precisely what they were inconsistent with. He
asked that they be granted an additional 20 minutes to speak as a matter of due process.
Mayor Perlman stated Mr. Rothenberg has 20 minutes to speak.
For the record, Mr. Rothenberg stated they object to this and noted the
Court said they were to have a hearing on the appeal not the site plan itself.
Mr. Rothenberg stated the substance of the ex parte communications was
not revealed and he objects to David Schmidt’s participation in this case.
The City Attorney asked the Commission to disclose the substance of their
conversations with David Schmidt.
The Commission disclosed the substance of their ex parte communications
with David Schmidt. In addition, Mr. Levinson stated he also had a conversation with
Mr. Rothenberg approximately a month ago about a telephone call related to their prior
representation of an individual who filed a complaint with the Federal Fair Housing Act
Board. The substance was that Mr. Rothenberg hoped it would not negatively impact Mr.
Levinson’s ability to hear this item since they no longer represented the individual.
Mr. Rothenberg submitted into the record the report from their planner and
the report from their drainage engineer.
- 36 -
12/06/05
José Aquila, Architect and partner with Currie Schneider Aquila
Architects in Delray Beach,
gave a brief presentation of what they brought before the
Board in September 4, 2001 for the benefit of new Commission members.
For the record, Mr. Rothenberg stated they entered into a settlement
agreement with Boston’s that settled all of these issues Mr. Aquila discussed this evening
and ultimately Boston’s decided to walk away from that agreement.
Lane Kendig, President of Lane Kendig, Inc.,
gave a brief description
of his credentials for the record. In his opinion, this plan is compatible with the City’s
Code, the Comprehensive Plan, and the Downtown Development regulations. Mr.
Kendig gave a brief presentation and stated this meets the Code and the concern for the
sight visibility distances were properly granted on all the waivers and he does not feel
there is any evidence that they did not do anything that would normally be done on a
property in the Central Business District (CBD) where there are fairly limited spaces.
Mr. Kendig stated Salina Avenue is not a residential street but is a truck service area.
Mayor Perlman stated if anyone from the public would like to speak in
favor or in opposition of the appeal, to please come forward at this time.
Andy Katz, 220 S. Ocean Boulevard, Delray Beach,
representing the
Beach Property Owners’ Association (BPOA), stated the BPOA supports the
redevelopment of the site; however, they have concerns with this particular proposal.
Dennis P. Koehler, Attorney with law offices in West Palm Beach,
representing the Salina Beach Home, L.L.C., stated this project would be appropriate for
st
Fort Lauderdale in the 1950’s but not for Delray Beach in the 21 century.
Bradley Miller, President of Miller Land Planning Consultants,
and is
a Land Planner and AICP, distributed a handout and briefly discussed the code standards.
He urged the Commission to consider the concerns he presented this evening along with
the written documentation and protect the residential neighborhood that the codes are
drafted to do.
Harvey E. Oyer III, Attorney with Gunster, Yoakley, and Stewart,
P.A., Phillips Point, 777 South Flagler Drive, Suite #500 East, West Palm Beach, FL
33401,
and representing Donald Robinson (owner of 24 Salina Avenue & 32 Salina
Avenue) located directly behind the proposed Hotel Vista Del Mar project; stated they
have attended every public meeting related to this project from its inception. Mr. Oyer
stated Mr. Robinson is not opposed to the use of the subject property for a hotel;
however, he is concerned with the site plan building design, landscape plan, height,
density, intensity, massiveness, and traffic congestion, traffic circulation patterns of the
proposed project as well as the consequent public health safety welfare issues for the
residents of Salina Avenue created by the proposed project.
- 37 -
12/06/05
Bill Bathurst, 1172 Canoe Point, Delray Beach,
urged the Commission
to deny the waivers and the appeal because he feels the project is too dense and will
create too many traffic problems on A-1-A. He stated this project is not fit for this site.
Mr. Rothenberg asked Mr. Dorling to give an explanation as to why staff
recommended approval of the waivers. In addition, Mr. Rothenberg cross-examined Mr.
Oyer regarding the owner of the property. Mr. Oyer stated some time ago the applicant
alleged that his client did not own or have any beneficial ownership interest in the three
parcels of property on Salina Avenue. As submitted into the record in 2001, Mr. Oyer
stated he can resubmit into the record that this is an acknowledgement of the Trustee as to
Mr. Robinson having a beneficial ownership in the three properties. Mr. Oyer also stated
if the Commission deems it relevant as to who formed the Trust he would be happy to
seek that information.
Mr. Rothenberg cross-examined John Carleen and Bradley Miller.
Mr. Schmidt stated he objects to any evidence or testimony that they have
tried to submit that occurred after the date of the SPRAB meeting.
Mr. Kendig stated in terms of compatibility one looks for something that
creates a whole streetscape. He stated this is an urban streetscape and the design
guidelines call for buildings to the street and the pedestrian friendly buildings that have
been talked about are right up to the street front. He stated this is pedestrian friendly and
it provides adequate space and provides a transition to the residential district because
there is landscaping in the residential district than just the five foot sidewalk.
Mr. Rothenberg stated they reduced traffic because the restaurant has been
taken out.
The City Attorney reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Levinson moved to approve the Board Order as presented by the City
Attorney, seconded by Mrs. Archer. Upon roll call the Commission voted as follows:
Mrs. Archer – Yes; Mr. Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes;
Mrs. Ellis – Yes. Said motion passed with a 5 to 0 vote.
9.E.THIS ITEM HAS BEEN MOVED TO THE REGULAR MEETING
OF DECEMBER 13, 2005.
9.F.THIS ITEM HAS BEEN MOVED TO THE REGULAR MEETING
OF DECEMBER 13, 2005.
9.G.THIS ITEM HAS BEEN MOVED TO THE REGULAR MEETING
OF DECEMBER 13, 2005.
- 38 -
12/06/05
9.H.AGREEMENT/PALM BEACH COUNTY SPORTS INSTITUTE/
COMMUNITY OLYMPIC DEVELOPMENT PROGRAM (CODP)/TENNIS
CENTER:
Consider approval of an agreement with the Palm Beach County Sports
Institute for a Community Olympic Development Program at the Tennis Center.
Mr. Levinson moved to approve the agreement with the Palm Beach
County Sports Institute for a Community Olympic Development Program at the Tennis
Center, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mr.
Levinson – Yes; Ms. McCarthy – Yes; Mayor Perlman – Yes; Mrs. Ellis – Yes; Mrs.
Archer – Yes. Said motion passed with a 5 to 0 vote.
9.I.AGREEMENT/CGI COMMUNICATIONS, INC.:
Consider approval
of an agreement with CGI Communications, Inc. to provide an online community video
program for the City. There is no cost to the City for the program.
Mr. Levinson gave direction to staff to see if there are other companies
that are providing this service and if so to make sure that we select the company that best
provides this service for us.
9.J. SPECIAL EVENT REQUEST/FIRST NIGHT 2006:
Consider
th
approval of a special event request to hold the 9 Annual First Night event on December
31, 2005 from 4:00 p.m. to midnight, granting a temporary use permit per LDR Section
2.4.6(H) for the use and street closures of City rights-of-way and facilities as requested,
to waive LDR’s section 4.6.7(D)(3)(j)(ii) to allow event signage to be placed no earlier
than December 16, 2005, and authorize staff support for security and traffic control,
signage construction and installation, barricade set-up/removal, trash removal and clean
up, EMS services, and use/set-up of City stages as needed at no charge.
Prior to the vote, Mr. Levinson asked if there was a media sponsor.
Mayor Perlman stated the event sponsor is the Sun-Sentinel.
th
Ms. McCarthy moved to approve the special event request to hold the 9
Annual First Night event on December 31, 2005, seconded by Mrs. Ellis. Upon roll call
the Commission voted as follows: Mr. Levinson – No; Ms. McCarthy – Yes; Mayor
Perlman – Yes; Mrs. Ellis – Yes; Mrs. Archer – Yes. Said motion passed with a 4 to 1
vote, Commissioner Levinson dissenting.
9.K. SETTLEMENT OFFER IN N’DETENGA N’GURUMO v. CITY OF
DELRAY BEACH:
Consider a Settlement Offer in the amount of $20,000.00 in
severance pay, $5,000.00 COBRA allowance, vacation and sick pay due upon retirement
in n’Detenga n’Gurumo v. City of Delray Beach. Staff recommendation is acceptance.
Mr. Levinson moved to approve the Settlement Offer in N’Detenga
N’Gurumo v. City of Delray Beach, seconded by Ms. McCarthy. Upon roll call the
Commission voted as follows: Ms. McCarthy – Yes; Mayor Perlman – Yes; Mrs. Ellis –
Yes; Mrs. Archer – Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote.
- 39 -
12/06/05
_________________________________________
9.L. THIS ITEM HAS BEEN DEFERRED TO THE REGULAR
MEETING OF DECEMBER 13, 2005.
12.FIRST READINGS:
?
NONE
13.COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS.
13.A.City Manager
The City Manager had no comments or inquiries on non-agenda items.
13.B.City Attorney
The City Attorney had no comments or inquiries on non-agenda items.
13.C.City Commission
13.C.1.Mrs. Archer
Mrs. Archer had no comments or inquiries on non-agenda items.
13.C.2.Mrs. Ellis
Mrs. Ellis had no comments or inquiries on non-agenda items.
13.C.3.Ms. McCarthy
Ms. McCarthy had no comments or inquiries on non-agenda items.
13.C.4. Mr. Levinson
Mr. Levinson had no comments or inquiries on non-agenda items.
13.C.5. Mayor Perlman
Mayor Perlman had no comments or inquiries on non-agenda items.
There being no further business, Mayor Perlman declared the meeting
adjourned at 2:00 a.m.
- 40 -
12/06/05
~ \). ~\~.~
City Clerk
ATTEST:
~o~ 4.
The undersigned is the City Clerk of the City of Delray Beach, Florida, and the
information provided herein is the Minutes of the Regular City Commission Meeting held
on December 6, 2005, which Minutes were formally approved and adopted by the City
Commission on January 3, 2006 .
~, . \ill Q U. \-)~,~)
City Clerk
~
NOTE TO READER:
If the Minutes you have received are not completed as indicated above, this means they
are not the official Minutes of the City Commission. They will become the official
Minutes only after review and approval which may involve some amendments, additions
or deletions as set forth above.
- 41 -
12/06/05
f
,
1
,
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
ROBIN AND ELLEN SUSSMAN,
Appellant(s),
vs.
CITY OF DELRAY BEACH,
Appellee.
I
ORDER OF THE CITY COMMISSION
OF THE CITY OF DElRAY BEACH, FLORIDA
I
I )
""[ >
1. This appeal of a site plan approval has come before the City Commission
on December 6, 2005.
2. The Appellants, Appellee and City staff presented documentary evidence
and testimony to the City Commission pertaining to the appeal of the Class V Site Plan
for Bermuda Gardens. All of the evidence is a part of the record in this case. Required
findings are made in accordance with Subsections I, II and III.
I.
COMPREHENSIVE PLAN:
REQUIREMENTS MET?
ARE THE COMPREHENSIVE PLAN
a. Comprehensive Plan - Future land Use Element Obiective A-1: This
objective requires that the property shall be developed or redeveloped, in a manner so
that the future use and intensity is appropriate in terms of soil, topographic, and other
applicable physical considerations, is complementary to adjacent land uses, and fulfills
remaining land use needs.
Is this objective met?
Yes
4
No
1
! b. Future land Use Map: The resulting use of land or structures must be
.j
\ allowed in the zoning district within which the land is situated and said zoning must be
,
r.+eYlA q. 8.
consistent with the applicable land use designation as shown on the Future Land Use
Map.
The subject property has a Future Land Use Map designation of Medium Density
Residential 5-12 units per acre (MD) and is zoned Medium Density Residential (RM).
Pursuant to lDR Section 4.4.6(B)(3), multiple family structures are allowed as a
permitted use within the MD zoning district, subject to compliance with the performance
standards of Section 4.4.6(1).
Future land Use - Is project's proposed location consistent with the
Future land Use Map?
Yes 5
No
o
c. Concurrency: Facilities which are provided by, or through, the City
shall be provided to new development concurrent with issuance of a Certificate of
Occupancy. These facilities shall be provided pursuant to levels of service established
within the Comprehensive Plan.
Concurrency as defined pursuant to Objective B-2 of the Land Use Element of
the Comprehensive Plan must be met and a determination made that the public facility
needs of the requested land use and/or development application will not exceed the
ability of the City to fund and provide, or to require the provision of, needed capital
improvements for the following areas:
Are the concurrency requirements met as respect to water, sewer,
drainage, streets and traffic, parks, open space, solid waste and
schools?
Yes 5
No 0
d. Consistency fStandardsfor Site Plan Actions): Compliance with
performance standards set forth in Chapter 3 and required findings in Section
2.4.5(F)(5) shall be the basis upon which a finding of overall consistency is to be made.
i. Is the building design, landscaping, and lighting (glare) such
that they create unwarranted distractions or blockage of
visibility as it pertains to traffic circulation?
Yes
o
No
5
2
I
1
;
ii.
Separation of different forms of transportation shall be
encouraged. This includes pedestrians, bicyclists, and
vehicles in a manner consistent with policies found under
Objectives D-1 and D-2 of the Transportation Element. Is this
requirement met?
NOT APPLICABLE
m. Are the open space enhancements as described in Policies
found under Objective B-1 of the Open Space and Recreation
Element appropriately addressed?
NOT APPLICABLE
iv. The City shall evaluate the effect that any street widening or
traffic. circulation modification may have upon an existing
neighborhood. Is the widening or modification detrimental to
the neighborhood and result in degradation of the
neighborhood such that the project shall not be permitted?
NOT APPLICABLE
r }
I
v.
Redevelopment and the development of new land shall result
in the provision of a variety of housing types which shall
,continue to accommodate the diverse makeup of the City's
demographic profile, and meet the housing needs identified in
the Housing Element. This shall be accomplished through the
implementation of policies under Objective B-2 of the Housing
Element.
Yes 4
No
1
vi. The City shall consider the effect that the proposal will have
on the stability of nearby neighborhoods. Are factors such as
noise, odors, dust, traffic volumes and circulation patterns
have the potential to negatively impact the safety, habitability
and stability of residential areas?
Yes
1
No
4
I
I
Does the proposed development result in degradation of the
neighborhood such that the project shall be modified or
denied?
Yes
1
No
4
3
vii. Development shall not be approved if traffic associated with
such development would create a new high accident location,
or exacerbate an existing situation causing it to become a high
accident location, without such development taking actions to
remedy the accident situation. Does the development create a
high accident location or exacerbate an existing situation
causing it to become a high accident location?
Yes
o
No
5
If yes, has the development proposed actions to remedy the
situation?
NOT APPLICABLE
e. Comprehensive Plan - Housina Element Policv A-12.3: This policy
requires that in evaluating proposals for new development, redevelopment, the City
shall consider the effect that the proposal will have on the stability of nearby
neighborhoods.
i. Do factors such as noise, odors, dust, traffic volumes and
circulation patterns negatively impact the safety, habitability
and stability of residential areas?
Yes
1
No
4
ii. Does the proposed development result in degradation of any
neighborhood?
Yes
1
No
4
iii. If yes, is the project modified aCCOrdingly? If no, it shall be
denied.
NOT APPLICABLE
Based on the above, will the development adversely effect the stability
of nearby neighborhoods pursuant to Housing Element Policy A-12.3?
Yes
1
No
4
4
1. Open Space and Recreation Element Policy B-1.3: New
developments shall provide central focal points at entries and landscape buffers along
the external (arterial, collector) streets which service them.
Are the requirements of Policy 8-1.3 met?
Yes 5 No 0
g. Housina Element Policy B~2.2- The development of new adult oriented
communities within the City is discouraged. New housing. developments shall be
designed to accommodate households having a range of ages, especially families with
children, and shall be required to provide 3 and 4 bedroom units and activity areas for
children ranging from toddlers to teens. This requirement may be waived or modified
for residential development located in the downtown area, and for infill projects having
fewer than 25 units.
Are the requirements of Policy 8-2.2 met?
Yes 4 No 0 N/A 1
j
h. Pursuant to Sections 3.1.1(A), "Future Land Use Map, 3.1.1(B),
"Concurrency" and 3.1.1(C), "Consistency" as outlined above in Sections I (a),
(b), (c), and (d), are the future land use map/concurrency/consistency
requirements met?
Yes 5 No 0
Based on the findings in Sections I (a) through (g), are the Comprehensive
Plan requirements met?
Yes 5No 0
II. LAND DEVELOPMENT REGULATIONS: ARE THE LDR REQUIREMENTS
MET?
,
i
a. Section 3.1.1ID) compliance with the Land Development Reaulations:
Section 3.1.1 (D) requires that Items identified in the LDRS shall specifically be
addressed by the body taking final action on the site and development
application/request. These areas include building setbacks, height, room size, space,
5
parking, loading, stacking distance, point of access, visibility at intersections and site
lighting.
i. Subdivision Plat: Pursuant to LOR Section 4.3.3(0)(2), each
townhouse, or townhouse type development shall be platted and each unit
must be shown on the plat with a minimum designation of the interior
street as a tract. Shall a plat be required and recorded prior to issuance
of a building permit and the homeowner's documents be submitted with
the plat application?
Yes 5 No 0
Ii. Setbacks: Pursuant to LOR Section 4.3.3(0)(3)(a), setbacks from
the perimeter of the overall project should be as established by the base
zone district requirements. Pursuant to LOR Section 4.3.3(0)(3)(b),
setbacks interior to the site shall be measured from.the platted street
system. The required setbacks for the RM zoning district and the
minimum provided setbacks are as follows:
Standard
25'
Provided
25'
Bui1din~ Setbacks (min.): Perimeter - Front
Side Interior
Side Street
15'
25'
15'
25'
Rear
25'
25'
Does the project comply with the building setbacks?
Yes
5
No
o
III. LOR Section 4.3.3(0)(4)(b): No townhouse row shall consist of
more than 8 units or a length of 200'. The proposed building consists
of a row of three units and is 125' in length. Does the proposed
development meet this code requirement?
Yes
5.
No
o
Iv. LOR Section 4.3.3(0)(4)(c): Service features, garages, parking
areas, and entrances to dwelling units shall, whenever possible, be
located on a side of the individual lot having access to the interior
street. Walkways should be designed to connect dwelling units with
each other and connect each dwelling unit with common open
space.
6
I
!
t
.
:.:
;
i
Does this standard apply to large townhouse developments with an
interior street system?
Yes
o
No
5
Are interconnecting walkways needed since the three townhouse units will
be fee simple ownership and no common open space or recreational
facilities are provided for the project?
Yes
o
No
5
v. LOR Section 4.3.3(0)(4)(d): Not less than 25% of the total
area, less water bodies, shall be usable open space, either for
recreational or some other suitable purpose, public or private. Is this
requirement met?
Yes
5
No
o
vi. LDR Section 4.3.4(Kl. Development Standards Matrix:
Buildinl! Heil!ht:
Ooen Space:
Maximum Lot Coveral!e:
Standard Provided
35' 33'-6"
25% 36.8%
40% 26.5%
1,250 sq.ft 3,058 sq.ft.
1,500 sq.ft 3,441 sq.ft.
1,500 sq.ft 3,572 sq.ft.
Minimum Floor Area: 1bree Bedroom - Unit "C"
Four Bedroom - Unit "An
Four Bedroom - Unit "B"
Are these requirements met?
Yes
5
No
o
vii. Special Reaulations: Pursuant to LOR Section 4.4.6(H)(3),
recreational areas shall be required for all new rental apartment
developments and of owner occupied developments which have
homeowner associations that must care for retention areas, private streets
or common areas. New developments must include recreational features
that are designed to accommodate activities for children and youth of all
age ranges. Tot lots are appropriate for toddlers; features such as a
basketball court, volleyball court, and open playfields are appropriate for
older children. A pool and clubhouse, unless specifically design for
7
children, is not considered to meet this requirement. Projects having
fewer than 25 units may be exempted from this standard where it is
determined by the approving body that it is not practical or feasible to
comply.
The proposal is for a three (3) unit townhouse development which will be
fee simple ownership. No common recreational facilities are provided.
Private rear yards with a pool and deck area are provided for each unit.
Should this regulation apply to the project?
Yes
o
No
5
viii. Site Lighting: Pursuant to .LOR 4.6.8 (Lighting), site lighting must
be provided. Has the project met all site lighting requirements?
Yes 5
No
o
ix. Parking: Pursuant to LOR Section 4.6.9(C)(2)(c), two or more
bedroom dwelling units shall provide two (2) spaces per unit and one-half
(0.5) a space of guest parking. The three (3) unit development is required
to provide eight (8) total parking spaces. Pursuant LOR Section 4.6.9 (c) .
(2), within townhouse developments, driveways may be used for guest
parking, provided that such parking does not result in the space for one
unit impeding access to a space of the other. The development proposal
will provide a total of twelve (12) parking spaces. Six (6) parking spaces
are provided within 3 - two car garages, and two within each driveway as
guest parking spaces. Is this requirement met?
Yes
5
No 0
b. Section 4.4.6(1) Performance Standards: Pursuant to Section
4.4.6(H)(1), a minimum density of 6 units per acre is established for multiple-family
housing projects within the RM Zoning District. Density may exceed the base of 6 units
per acre only after a finding has been made that the project has substantially complied
with performance standards as listed in Section 4.4.6(1) as follows:
i. The traffic circulation system is designed to control speed and
reduce the volumes on the interior and exterior street network. This can
be accomplished through the use of traffic calming devices; street
networks consisting of loops and short segments; multiple entrances and
exits into the development; and similar measures that are intended to
minimize through traffic and keep speeds within the development at or
8
f
below 25 m.p.h. Bermuda Gardens Road is a 24 ft. wide private road
which dead ends to the west of the subject property. Is this performance
standard applicable to the proposed project?
NOT APPLICABLE Yes 5
No 0
ii. Buildings are placed along. the development in a manner that
reduces the overall massing, and provides a feeling of open space. The
proposed townhouse project involves the redevelopment of an existing
single family home site. State Road A-1-A is adjacent to the property to
the east and Bermuda Gardens Road, a private road easement, is located
along the north perimeter of the property. Given the small size of the
property, 100 ft. deep, placement of the building is limited to the center of
the site with access taken from Bermuda Gardens Road. The building
complies with the setback requirements of the RM zoning district and
provides a substantial amount of play in the front fayade to reduce the
mass of the building. Is this standard applicable?
NOT APPLICABLE Yes 5
No 0
III. Where immediately adjacent to residential zoning districts having a
lower density, building setbacks and landscape materials along those
adjacent property lines are increased beyond the required minimums in
order to provide a meaningful buffer to those lower density areas.
Buildings setbacks are increased by at least 25% of the required
minimum; at least one tree over 30 linear feet (or fraction thereof) is
provided; trees exceed the required height at time of planting by 25 % or
more; and a hedge, wall or fence is provided as a visual buffer between
the properties. All of the adjacent properties are zoned RM. Is this
performance standard applicable to the proposed project?
NOT APPLICABLE Yes 4
No 1
iv. The development offers varied streetscape and building design.
For example, setbacks are staggered and offset, with varying roof heights
(for multi-family buildings, the planes of the facades are offset to add
interest and distinguish individual units). Buildings elevations incorporate
diversity in window and door shapes locations; features such as balconies
arches, porches, courtyards; and design elements such as shutters,
. window mullions, quoins, decorative tiles, etC. Is this performance
standard met?
(.
Yes
5
No 0
v. A number of different unit types. Sizes and floor plans are available
within the development in order to accommodate households of various
9
ages and sizes. Multi-family housing will at a minimum have a mix of one,
two and three bedroom units with varying floor plans. Single family
housing (attached and detach~d)will at a minimum offer a mix of three
and four bedroom units with varying floor plans. . Is this requirement met?
Yes
5
No
o
vi. The development is designed to preserve and enhance existing
natural areas and/or water bodies. Where no such areas exist, new areas,
which provide open space and native habitat, are created and
incorporated into the project. Is this requirement met?
NOT APPLICABLE Yes. 5
No 0
c. Section 2.4.5(F)(5) (Site Plan Findinqs): Pursuant to Section
2.4.5(F)(5), "Findings", in addition to provisions of Chapter Three of the Land
Development Regulations, the approving body must make the following finding:
Is the development of the property pursuant to the site plan
compatible and harmonious with the adjacent and nearby properties
and the City as a whole, so as not to cause substantial depreciation
of property values?
Yes
4
No
1
Based on the findings of Section II (a), (b) and (c), are the LOR
requirements met?
Yes
5
No
o
IF THE SITE PLAN REVIEW AND APPEARANCE BOARD DECISION IS UPHELD
PLEASE GO TO SECTION III, OTHERWISE GO TO PARAGRAPH NO.3.
III. WAIVERS:
a. Visibility at Intersections: Pursuant to LOR Section 4.6.14(A)(2), a 40'
sight triangle is required at the intersection of Bermuda Road and State Road A-1-A.
The proposed 5' high wall, around the side of the comer townhouse lot, encroaches into
this triangle. The wall buffers the property from A-1-A, provides privacy and security for
the rear yard and screens the AC units. The applicant has requested a waiver to reduce
the required sight visibility triangle to accommodate the wall as designed.
Pursuant to LOR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding that the granting of the waiver:
10
!
!
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not createan unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver would
be granted under similar circumstances on other property for another applicant
or owner.
Does the waiver request meet all the requirements of 2.4.7(B)(5)?
Yes 4
No 1
b. Section 4.3.3(0)(4)(a): No more than two (2) townhouses may be
constructed without providing a front setback of no less than four feet ( 4') offset
front to rear.
Pursuant to LOR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding of fact that the granting of the waiver:
r ,
,
(a). Shall not adversely affect the neighboring area;
(b) Shaft not significantly diminish the provision of public facifities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privifege in that the same waiver would
be granted under simifar circumstances on other property for another applicant
or owner.
Does the waiver request meet all the requirements of 2.4.7(B)(5)?
Yes
4
No 1
c. Pursuant to LOR Section 6.1.3(A), a five foot wide sidewalk is required
along the south side of Bermuda Road. The applicant has requested that a waiver be
granted. Bermuda Gardens Road is a 24' wide private road easement. There are not
any existing sidewalks along this roadway and the road dead ends west of the
proposed development.
Pursuant to LOR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding of fact that the granting of the waiver:
(
(a) Shall not adversely affect the neighboring area;
(b) Shaft not significantly diminish the provision of public facilities;
(c) Shaft not create an unsafe situation; and,
(d) Does not result in the grant of a special privifege in that the same waiver would
be granted under simifar circumstances on other property for another applicant
or owner.
Does the waiver request meet all the requirements of 2.4.7(B)(5)?
11
Yes 5 No . . 0
3. The City Commission hasappHed the Comprehensive Plan and LOR
requirements in existence at the time the original site plan was submitted.
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves x
denies _ the waiver requests by a vote of 5
in favor and 0
opposed.
6. Based on the entire record before it, the City Commission approves _
denies x the site plan application appeal thereby upholding the decision of the Site
Plan Review and Appearance Board and hereby adopts this Order this 6th day of
December, 2005, by a vote of 4
in favor and 1
opposed.
ATTEST: <
~~:i",~. \\\~:,,)
ChevelleNubin
City Clerk
~\)'" ?~
Rita E is, Deputy Vice-Mayor
12
f
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
OELRAYBEACH, FLORIDA
HHC ATLANTIC, LLC,
Appellant(s),
vs.
CITY OF OELRA Y BEACH,
Appellee.
I
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. This appeal of a site plan approval has come before the City COrTui11ssion
on December 6, 2005.
2. The Appellants, Appellee and City staff presented documentary evidence
and testimony to the City Commission pertaining to the appeal of the request for
extension of site plan approval for the Seagate Hotel at Atlantic Place. All of the
evidence is a part ofthe record in this case. Required findings are made in accordance
with Subsection I.
I. Site Plan Extension:
a. Establishment of Proiect:
the total cqst of all improvements to
constructed?
Have improvements representing 25% of
be used in developing the project been
Yes
o
No
5
b. Construction has Commenced: When there are substantial
improvements on the site but the 25% establishment standard is not met, the granting
agency shall consider the diligence and good faith of the developer to actually
commence and complete construction. In considering "diligence and good faith", the
granting body shall consider:
f
i.
When the construction commenced (construction which is
commenced immediately preceding expiration generally indicates a
lack of good faith);
r-f~h1 q.C-.
ii. The extent to which construction has proceeded;
iii. The extent to which there has been a bona fide continuous effort to
develop but because of circumstances beyond the control of the
developer, it was not possible to meet the 25% standard.
Based on the criteria listed above has the developer shown "diligence and good
faith" to commence and complete construction?
Yes
4
No 1
3. The City Commission has applied the LOR requirements in existence at
the time the extension request was submitted.
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves x
denies _ the extension of the site plan appeal and hereby adopts this Order this
~ day of December, 2005, by a vote of 4
ATTEST:
~.~.~~
Chevelle Nubin
,City Clerk
G... 2
Rita E .s, Deputy Vice-Mayor
1
2
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(
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
OELRAY BEACH, FLORIDA
VISTA DEL MAR, LLC and
BOSTONS ON THE BEACH, INC.
Appellant(s),
vs.
CITY OF OELRAY BEACH,
Appellee.
I
REVISED ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. This appeal has come before the City Commission on December 6, 2005,
as a result of the Order of the Fourth District Court of Appeal and the Circuit Court of
the Fifteenth Judicial Circuit, which remanded this case in order that the City could
. make findings on the record as to the appeal.
2. Pursuant to the Court's Orders, this appeal is heard de novo as several
commissioners were not in office at the time the original appeal was heard by the City
Commission on September 4,2001 (see Court Orders attached as Exhibit "A").
3. The Appellants, Appellee and City staff presented documentary evidence
and testimony to the City Commission pertaining to the de novo appeal of Vista Del
Mar, LLC's Class V Site Plan. All of the evidence is a part of the record in this case.
Required findings are made in accordance with Subsections I and II.
I.
COMPREHENSIVE PLAN:
REQUIREMENTS MET?
ARE THE COMPREHENSIVE PLAN
a. Comprehensive Plan - Future Land Use Element Oblectlve A-1: This
objective requires that the property shall be developed or redeveloped, in a manner So
that the future use and Intensltv is appropriate in terms of soil, tOPoaraphic. and
other applicable phvsical considerations, is complementary to adjacent land
uses, and fulfills remalnlno land Use needs.
Is this objective met?
Yes -.JL No...L
II-em q .J).
b. Future Land Use Map: The resulting use of land or structures must be __
allowed in the zoning district within which the land is situated and said zoning must be
consistent with the applicable land use designation as shown on the Future Land Use
Map.
The subject property has a Zoning District Map designation of Central Business
District (CBO) and has a Commercial Core (CC) Future Land Use Map deSignation.
Pursuant to LOR Section 4.4.13(B), .Principal Uses and Structures Permitted-, hotels
are allowed as a permitted use within the CBO zoning district.
Future Land Use - Is project's proposed location consistent with the
Future Land Use Map?
Yes
5
No
o
c. Concurrency; Facilities which are provided by, or through, the City
shall be provided to new development concurrent with issuance of a Certificate of
Occuparicy. These facilities shall.be provided pursuant to levels of service established
within the Comprehensive Plan.
Concurrency as defined pursuant to Objective B-2 of the Land Use Element of
the Comprehensive Plan must be met and a determination made that the public
facility needs of the reauested land use and/or development application will not
exceed the ability of the City to fund and provide. or to reauire the provision of,
needed capital improvements for the followina areas:
Are the concurrency requirements met with respect to water sewer,
drainage, streets traffic, parks, open space, impact fees or solid
waste?
Yes 5
No 0
d. Consistency (Standards for Site Plan Actions): Compliance with
performance standards set forth in Chapter 3 and required findings in Section
2.4.5(F)(5) shall be the basis upon which a finding of overall consistency Is to be
made.
i. Is the building design, landscaping, and lighting (glare) such
that theycre.!l~4:I unwarranted.. _distractions or. blockage of
visibility as it pertains to traffic circulation?
Yes
5
No
o
2
!
ii.
Separation of different forms of transportation shall be
encouraged. This includes pedestrians, bicyclists, and
vehicles in a manner consistent with policies found under
Objectives D-1 and D-2 of the Transportation Element. Is this
requirement met?
Yes
1
No
4
iii. Are the open space enhancements as described in Policies
found under Objective B-1 of the Open Space and Recreation
Element appropriately addressed?
NOT APPLICABLE Yes
5
No
o
iv. The City shall evaluate the effect that any street widening or
traffic circulation modification may have upon an existing
neighborhood. Is the widening or modification detrimental to
the neighborhood and does it result in degradation of the
neighborhood such that the project shall not be permitted?
Yes
5
No
o
r
,
I
v.
Redevelopment and the development of new land shall result
in the provision of a variety of housing types which shall
continue to accommodate the diverse makeup of the City's
demographic profile, and meet the housing needs identified in
the Housing Element. This shall be accomplished through the
implementation of policies under Objective B-2 of the Housing
Element.
NOT APPLICABLE Yes
5
No
o
vi. The City shall consider the effect that the proposal will have
on the stability of nearby neighborhoods. Do factors such as
noise, odors, dust, traffic volumes and circulation patterns
have the potential to negatively impact the safety, habitability
and stability of residential areas?
Yes
5
No
o
I
Does the proposed development result in degradation of the
neighborhood such that the project shall be modified or
denied?
Yes
5
No
o
3
vii. Development shall not be approved if traffic associated with
such development would create a new high accident location,
or exacerbate an existing situation causing it to become a high
accident location, without such development taking actions to
remedy the accident situation. Does the development create a
high accident location or exacerbate an existing situation
causing it to become a high accident location?
.-.~
Yes
5
No
o
If yes, has the deyeloplJlent proposed actions to remedy the
situation?
Yes
o
No
5
e. Comprehensive Plan . Housinq Element Policy A-12.3: This policy
requires that in evaluating proposals for new development, redevelopment, the City
shall consider the effect that the proposal will have on the stability of nearby
neighborhoods.
I. Do factors such as noise, odors, dust, traffic volumes and
circulation .patterns negatively impact the safety, habitability
and stability of residential areas?
Yes
5
No
o
iI. Does the proposed development result in degradation of any
neighborhood?
Yes
5
No
o
iiI. If yes, Is the project modified accordingly? If no, it shall be
denied.
Yes
o
No
5
Based on the above, will the development adversely effect the stability of
nearby neighborhoods pursuant to Housing Element Policy A-12.3?
Yes 5 No 0
1. The Comprehensive Coastal Manaaement Element states in Goal
Area "C": This element requires that development and redevelopment in the Coastal
Planning Area shall be compatible with the existing character of the area, and shall
4
provide for a sensitive balancing of the needs for economic development.
.r
1 redevelopment. and environmental protection and in Objective C-3 that the
development of vacant and under-developed land on the barrier island shall occur in a
manner which does not chanae the character. intensity of use. or increase demand
upon existina infrastructure in the Coastal Planning Area and pursuant to Policy c-
3.2 that there shall be no chanae In the intensity of land use within the barrier
Island and all infill development which does occur shall connect to the City's storm
water manaaement sYStem and sanitary sewer system.
Is the Coastal Management Element for Goal Area "C" met?
Yes 0
No 5
g. Pursuant to Sections 3.1.1(A), "Future Land Use Map, 3.1.1(B),
"Concurrency" and 3.1.1(C), "Consistency" as outlined above in Sections I (a),
(b), (c) and (d), are the future land use map/concurrency/consistency
requirements met?
Yes
5
No
o
*Based on the findings in Sections I (a) through (g), are the Comprehensive
Plan requirements met?
Yes 0 No 5
II. LAND DEVELOPMENT REGULATIONS: ARE THE LDR REQUIREMENTS
MET?
a. Section 3.1.1 (D) compliance with the Land Development Reaulations:
Section 3.1.1 (D) requires that Items identified in the LORS shall specifically be
addressed by the body taking final action on the site and development
application/request. These areas include building setbacks, height, room size, space.
parking, loading, stacking distance, point of access, visibility at intersections and site
lighting.
i.
Buildina Setbacks: Within the CBD zoning district, front
building setbacks shall be no less than 5' and no greater than
10'. Side building setbacks must be 10' when adjacent to
Residential zoning. Does this project comply with building
setbacks?
!
'!
,
,
t
Yes 5
No
o
5
ii.
Bulldina Heiaht:
of 48' height is
building height?
Yes 5
Within the CBD zoning district, a maximum
allowed. Does this project comply with
No
o
iii. Room Size: Pursuant to LDR Section 4.3.3(M)(1),. each
sleeping room shall contain a floor area of 325 feet including
closets. and baths. Does this project. comply with Room Size
Requirements?
Yes 5
No 0
iv. Parkina: Pursuant to LDR Section 4.6.9(C)(7)(e), hotels and
motels are required to provide spaces for each guest room
plus 10 spaces per 1,000 sq. ft. floor area devoted to
ballrooms, meeting rooms, restaurants, lounges, and shops.
However, pursuant to Section 4.4.13 (G)(1)(d), within the CBD
zone district, restaurants require 6 spaces per 1;000 sq. ft. of
floor area. Has this project met the parking requirements?
Yes 5
No
o
v. Handicapped Parkina: Two handicapped spaces are
required. Does the project provide adequate handicapped
parking spaces?
Yes 5
No
o
vi. Dead-end Parkina Bavs: Pursuant to LDR Section 4.6.9
(D)(4)(c), a 24' wide by 6' maneuvering area is required at the
end of the dead-end parking bays. Does this project meet the
dead-end parking bay provision?
Yes 5
No
o
vii. Loadlna: Hotels between 20,000 and 100,000 sq. ft. shall
provide 2 loading spaces. Has the loading requirement been
met?
Yes 5
No
o
viir. .Slackln-a -Distance: Pursuant to LDR Section 4.6.9(D)(3)(c)(1),
the required stacking distance from the right-of-way to the first
6
parking space or aisle way is 20' when 50 parking spaces are
provided in a parking area. Has the stacking distance been
met?
Yes 0
No 5
ix. Point of Access: Pursuant to LDR Section 4.6.9(D)(3)(a), the
point of access to a street or alley shall be a maximum of 24'
unless a greater width is specifically approved as part of the
site and development plan. Has the Point of Access
requirement been met?
Yes 5
No
o
x. Visibilitvatlntersection: Pursuant to LDR Section 4.6.14(A), a
visibility triangle is required at the Intersections of roads
(corner lots) and driveways. An unobstructed view within this
triangle visibility must be provided between the heights of 3'
and 6'. The required visibility triangle at the intersection of
two streets is 40' and 20' at driveways. Has the Visibility at
Intersections requirement been met?
Yes 0
No
5
xl. Site LIghting: Pursuant to LDR Section 4.6.8, site lighting must
be provided within the proposed parking lot area, however, the
location of the project also requires compliance with Section
91.51 of the City's Code of Ordinances, "Lighting Restrictions
along Beach", stated as follows: "No artificial light shall
illuminate any area of the beach which is used for sea turtle
nesting and its hatchlings. In order to accomplish this, all
lighting shall be shielded or screened so that the light Is not
visible from the beach at night period (from dusk until dawn)
from April 1 to October 31 of each year." Has the project met
all site lighting requirements?
Yes 5
No 0
{
xii. Bike Rack: Pursuant to LDR Section 4.6.9(C)(1)(c)(3), bicycle
parking facilities shall be provided In the designated area and
by a fixed or stationary bike rack for any non-residential use
within the City's TCEA. Has the bike rack requirement been
met?
Yes 5
No 0
7
b. Section 4.6.18(E) reauires certain findinas: Section 4.6.18(E) requires
findings that:
i. The plan or the proposed structure is in conformity with good taste,
good design, and in general, contributes to the image of the City as a place of beauty,
spaciousness, harmony, taste, fitness, broad vistas, and high quality.
Is this requirement met?
Yes 0 No 5
ii. The proposed structure, or project, Is in its exterior design and
appearance of quality such as not to cause the nature of the local environment or
evolving environment to materially depreciate in appearance and value.
Is this requirement met?
Yes 0 No 5
iii. The proposed structure, or project, in harmony with the proposed
developments in the general area, with the Comprehensive Plan, and with the
supplemental criteria which may be set forth for the Board from time to time.
Is this requirement met?
Yes
o
No
5
c. Section 2.4.5(F){5) (Site Plan Findinas): Pursuant to Section
2.4.5(F)(5), "Findings", in addition to provisions of Chapter Three of the Land
Development Regulations, the approving body must make the following finding:
Is the development of the property pursuant to the site plan
compatible and harmonious with the adjacent and nearby properties
and the City as a whole, so as not to cause substantial depreciation
of property values?
Yes
o
No
5
Based on the Findings of Section " (a), (b) and' (c), are the LDR
requirements met?
Yes 0
No
5
d; The Petition requestedthreewaiVets asfbllows:
· LOR Sections 4.6.9(0)(3)(c)(1) to reduce the required stacking distance
for the Salina Avenue driveway entrance from 20' to 14'.
8
· LOR Section 4.6.14(A) to reduce the visibility triangle at the Salina Avenue
driveway entrance from 20' to 10' and the Ocean Boulevard driveway
entrance from 20' to 8'.
· LOR Section 6.1.3(B) to eliminate the required sidewalk along Salina
Avenue.
Pursuant to LOR Section 2.4.7(B)(5), prior to. granting a waiver, the
approving body shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same
waiver would be granted under similar circumstances on other
property for another applicant or owner.
Based on th~ requirements in LOR Section 2.4.7(B)(5), the City
Commission finds as to the three waiver requests as follows:
i. LOR Sections 4.6.9(0)(3)(c)(1) to reduce the required stacking
distance for the Salina Avenue driveway entrance from 20' to 14'.
Does the waiver meet all the requirements of 2.4.7(B)(5)?
Yes
o
No
5
ii. LOR Section 4.6..14(A) to reduce the visibility triangle at the Salina
Avenue driveway entrance from 20' to 10' and the Ocean
Boulevard driveway entrance from 20' to 8'.
Does the waiver meet all the requirements of 2.4.7(8)(5)?
Yes
o
No
5
iii. LOR Section 6.1.3(B) to eliminate the required sidewalk along
Salina Avenue.
1
9
Does the waiver meet all the requirements of 2.4.7(B)(5)?
Yes
5
No
o
4. The City Commission has applied the Comprehensive Plan, Future Land
Use Map and LOR requirements in existence at the time the original site plan was
submitted.
5. The City Commission. finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
6. Based on the entire record before it, the City Commission approves x
denies _ Boston's Appeal, denies the site plan application, and hereby adopts this
Order by a vote of 5
in favor and
o opposed. This item was scheduled for
hearing at the regularly scheduled City Commission meeting of December 6, 2005,
however, the vote was taken after midnight and the Order was thereby adopted on
December 7, 2005.
ATTEST:
- ~AJh'~'_}U~("'~('~C1~rl:.
~...: CheveUe ubin l.w,o/~S .
City Clerk
10
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EXHIBIT "4"
WI
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C. -I~
ROSA HOTEL DEVELOPERs, INC.. a Florida
cOl'poratjou, LOUIs CAPANO, FRANCEs
. MARlNCOLA, and VISTA DEL MAR. L.C.,
a Florida limited liability COIDpany"
PetitiOl1erl,
INl'HB FlF'nmNTa1UDICIAL CIRCT
IN AND FOR PAUl BEACH COUNT}
FLORIDA
APPELLATE DIVISION (CIVlt)
CONSOLIDATED
CASE NOS.: 2001 AP OI04OS A V
2001 AP 01 J228 A V
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VI.
TIlE CITY OF DELRAV BEACH, a Florida
muniCipal COtJ-'Ul1lfion,
Respondent.
Opinion filed:
JU. 1 2 Zoa
......... Writ of"""-.... "'City""""",- of... City.fDc!nys-........
For Petitionem, Chades L. Siemon, Esq., Boca Raton, FL. .
For Petitionem, Todd G.Messenger, Esq., Boca Raton, FL.
For Respondent, Harry B. Handler, Esq~, Boca Raton, FL.
For Respondent, S-usan Ruby, Esq., Dehay Beach, FL.
MAAss,1.
By i" Amoadcd "'"".. f", Writ of C_ _ to.... R. App. P. .. 100(,)
("Pct;Uoo"), "'""-., ....H.'" """'-'.loc.Lou;, C_ F"""", -.... "'"
V.... old MM. L.C. (to""...,. "Dov""""">. _ __ ......,.f.... ""Woo, by..
City C-u,Ioo.f.........., the C">.f Dohy _.. Florida ('City"). 11-.....
City ""led to f.lI.w i" .... ........... ........ .."" """,.., _......" .<1.... w,
...... ... P...... qu'" tho City C_;,,;.... """""""",,",1, i. Si. P1"lkv;"" "'"
I'3/IC-,.
~ece'VeD
JUN , 8 2013
f'\'?\I A"P-p__.._ .
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~ - l"SP1lAB"}_ of""'~... PI............... ""........
proc~88.
Inlhean0f2OOJ.P.o;___Dc.elop.,.,lnc.. -""'--
oftheB_lan........20......... ...,.__........... """"-....
. m Ddnyilead> ~ "'"-F............... _"'" O,"""of__
~ Inc. ... the ........... of the _ Mariocola "'" . __ .....
Petitioner CaplDO to develop the Property. .
The Property is in the CBD. Central Businesa District. zoning district Hotels lie a
pemUtted use. The Developer submitted a PI'Oposed site plan to develop the P~L1 into a
70 - .......,.. ~ A1Iar~_ -.. ...... ... 8PRAB .... ......... of
modUicatioaa. the SPRAB 8ppIoved the siteplan 8Dd three minorWaiven on August 8, 2001.
Boston's. Inc., the owner of a restaurant ilnnJediately north of the Property, and
Bootoa',..... &.oh.lnc., ... -', _ (_. ""-'o'"),_the
SJ>JWr, -..... the ~ eo....-. "" ""'--.2001.... CftyCommi_ by
a 4-1 vote, granted the 8ppea] aud reversed the SPRAB's approval of the Developers site
plan. On September 19, 2001, the City Commiuion IIgreed to reconsider ita decision. in the
lIpparent hope that the Developer and Boston's couJd IeConci1e their di1rerenCe$. Instead. at'
.. Clctobo, 2. 2001 -.. the <>lye....,,;.,;.. """'" 00<0 ..... .. _the ""'"
N..... ... .;,..,.... ~ 2001 -"'" Clctobo, '. 2001 ..... by the City eo....;.,;...
granting Boston's the relief sought ~onta!ned findings of fact. The Developers Amended
Petition for Writ of Certiorari seelcs review of both orden.
Tho Developer is entitled to this first tier review of the City's action as a matter of
ri.... ThU C"""..... _ w"- (i) """"""" ........... ... _ (u)...
"""'... --. of law w'"' obomod; ... (ijQ ... ""'_ ... ......... by
competent andsubstantiaJ evidence. City olDeetjie/d Beach v. Vail/aliI, 4 I 9 So. 2d 624 (FlL
1982).
SectiOQ 3.1.1 of the City's Land Development Regulations C'LDR") Provides;
P''''2.
c'
(
~: PriOl'to the approval of deveIopnlent
applications. certain tin'*'1gs must be made in a form
which is part of the official record. This may be achieved
through information on the application. written materiaIa
submitted by the ~Iicant. the staff report. or minutes.
Findings shaII belDllde by the bodywhich has the authority
to approve or deny the deveIopnlent application.
Subsections (A) though (D) require findings on the current and proposed futun: zoning
'consistency; COIlCUUCncy; coutplchflDBive plan consistency; and compliance with the Land
Development Regulations. Section 2.4.5 (F) (5) of the LDR requires that:
(i)n addition to provisions of Chapter Thtee. the approving
bodymustmab a fincting that development of the plvp..&ly
P1ll8Uallt to the site plan wiD be cotnpatible and
haimouiOUl with acljacent and nearby prOy.o. ties and the
City as a whole, so as not to cauSe substantial depre..iation
of prvp.... ty values.
Section 2.4.7 (E) defines an appeal as a request for review and revcrsaJ of any action
which. unot appealed. would be final. Under the LDR, Boston's had standing to seetrcview
of the SPRAB's decision by the City Commission. However, subsection (5) (b) of2.4.7 (8)
of the LDR requires that:
(t)he granting of an appeal pertainfug to a decision on a
development application must consider those items upon
which a finding if required and the appellate body mUst
make findings on those items.
Here, while various comm;moners made olal statements at the hearings about their
concerns. it if undisputable that the COmmission itself made no findings, either orally or in
'tin' I
wn g.
The City corrcct.lyargues that due process does not requim that the CitY Comm;mon
inalce findings in order to support its decision. ~ Broward County Y. G.B. Y. International.
'AaCUlJ1llcofCily Sla/I'. infcJpreJariOll otJU/JlciClllllndlnpotfact caa be t"ouncI at pa...IO, aHg.. of!heSPRA8'.
SUIt report OIIlhe Dndopcr'. applical/_
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lJd.. m So. 2d 838 (FIL 21lO1~ TI>;, ~ ... CHy', LDR, thoogh, _ ~
- requu" findings. The importance of the requirement in PJ"eServing the Developer's righta to
seek accurate miew of an adverse decision Cannot be overstated. ~ id. at 846 ("(w)c note
that the Commission did little to facilitate jUdicial review or to bolster ita own decision; it
made no findings, stated no formal reason for ita decision. and issued no written order.
Although the Court in Board o/Counl)1 Commusfonen v. Snyder, 627 So. 2d 469,476 (PIa.
1993), JeCOmmended but did not require written findings of fact in a quasi-judicial
pr'OCcedjug. ourruling in thatcasehaa been cal1edinto qtlestion in subsequent)'earl. (footnote
omitted)j;Du.r.reau v. Metropolitan Dade CounI)1 Board o/Counl)1 Commusioners, 794 So.
2d 1270 (PIa. 2001) (Paricnte,joined by Anstead lIDdLcwis. concurring). Whcrenofindings
are made, it is impossible to review whether the majority of commissioners agreed that the
Developer's application failed to meet a Particular requirement or whether a commissioner's
decision was made on lID impermissible basis. ~ in general, T.R. Hainline, Jr. & Steven
Dieberiow, Snyder HOuse Rules? TIre New Deference In the Review 0/ Quasi-Judicial
Deci.rloru, Fla. B.I., Nov. 2000; KenaiPeninsula Borough v. Ryherd, 628 P. 2d 557 (Alaska
1981); TIre Irish Partnership v. Rommel, 518 A. 2d 356 (R.I. 1986); Rendlno'3 TrucA:and
AUIQ Collisfon,lnc. v. Zoning Board o/Appeals, Cil)1 o/SyraCUse, 552 N. Y.S. 2d 791 (N.Y.
ApI'. Div. 4th Dep't 1990); Dallmeyer v.Lacey Towruhip Board 0/ Adjustment, 529 A; 2d
1063 (NJ. Super. Ct 1987).
Site plan approval may be conditioned only on satisfaction of regulations capable of
objective determinatioD in an administrative proceeding. Park of Commerr:e Associates v.
Cil)1 of De /ray Beach, 606 So. 2d 633 (Fla. 4th DCA 1992), approved 636 So. 2d 12 (Fla.
1994). It follows, then. that the site plan approval here could be reversed by the City
COmmission only ifit determined that there was a Procedural irregularity before the SPRAB
or if the SPRAB's required fact finding was flawed.
Boston's appeal raised this latter ground Consequently, in order to reveIR the
SPRAB the City COmmission, as a body, was required to detennine, explicitly, that the
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Developer failed to satisfy at least one oCthe required, objective criteria Corsiteplan approval .
~B.e//evue Shopping Center AsSociates v. Chase, 556 A. 2d 45,46 (R.I. 1989) (bearing
transcript disclosed opinions of various zoning.review board members but board failed to
issue findings; "(i)n our review of the varying ~t'.eo.ions of opinions given by the board. it
becomes obvious that a majority of the board did Dot agree on anyone reason for denial of
the application.j. Transcripts of the ~ and October, 2001 City Commission
hearings show that individual members eJtpressed concerns about drainage provisions,
compatibility with adjacent prop... lies, consistency with the comprehensive plan, massing,
pvp.aLy values, and safety. among other issues. At least one JD.....ber ClXpressed a concem
aboutwhether the existing zoning code should be revised. Without the required findings of
fact, thoush. this Court is unable to determine whether the majority of COInmiqjoners agreed
on anyone defici\'DCY and, if so, whether the deficiency could legaJIy be used to detest the
Developer's site pIan approval.
While the City was not required to impose on its Commission the obligation to make
findings of fact when sitting as an appellate body, it chose to do so. Having created this
importantprocedum1 safeguaro, it may not uni1ateraUy decide to deny a citizen ill protection.
A decision to.do SO departs from the essentiall"OCJUiremenll of law. ~ Stephanos v, Paine,
72780.2d 1075 (Fla. 4th DCA 1999) (trial court departed from essential requirements ofIaw
in failing to .folJow statutory procedure as condition Precedent to granting plaintiff right to
seek punitive dam"8cs); Habig v. Harker, 447 N.E. 2d 1114 (Ind. Ct App. 1983) (where
Indiana law requied boards of zoning appeal to set out written findings offact, action should
be remanded where board fails to do so).
Because the City's orders departed from the essential requirements oflaw. we grant the
Developers' Amended Petition, quash the orders oCthe City COmmission granting the appeal,
and remand the action baclc for further proceedings consistent with this decisiolL We note
that Boston's appeal remains pending. However, if the City Commission 's composition has
changed since the orders appealed, the appeal should be considered ill< HQyg. Sa Bellevue
P'se .j.
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(BEROER and LABARGA, 11., concur)
)
'W.nioct die DewIopr. -ofonlllll s-'Iwaiwcf ill,;...... IppQ/, cIivarin, llleC"dyCommissioa of
j~~ 1110 pII1i...lt<<i....... AIo-_ ......1bIIy............. /be October 2, zoo. hearin(s aom. fiInnrd. 1110
olher ~.. issua nisecf by dlc Donfopcr are made moot "'_ by our decisioa.
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IN nm CIRcurr COURT OF THE F1FI'BENTH JUDICIAL CIRcurr
IN AND FOR PALM BEACH COUNTY. FLORIDA
CASBNOS.: AP01-10010SAY
(ConaoHdatcd)AP 01-11228 AY
ROSA HOTEL DEVELOPERS.
INC.. a Florida COrportatiou. LOUIS
CAPANO, FRANCES MARlNCOLA.
aud VISTA DBI. MAR. a Florida 'imited
Liability CompanY.
0pini0DlDecUi0ll filed:
Petition 1iom the City Con-imOll of
the City ofDelray Beach, Floridl.
PetitiluJed: October 9, 2001 & October 31,
2001
Petitioners,
v.
TIlE CITY OFDBLRAY BEACH. a
Fiorida Municipal COI]lOIlIticm.
Respondent.
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DATE OF: Jun., 11. 200]
PANEL: Berver~ U.... And' .AM~
AFFlRMEDIREVERsED/OTHER PETrrTON GRANTRn DECISION OUASHRn and
CAUSRRRMAlImRq
PER CURIAM OPINION/DBCIsION BY:
DATE CONCURRING: ) DISSENTING:
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CITY COMMISSION
CITY OF DELRAV BEACH, FLORIDA
IN RE: Appeal of Administrative Decision Relating to Hotel Vista Del Mar
I
FINAL ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH ON
THE APPEAL OF AN ADMINISTRATIVE DECISION OF THE PLANNING DIRECTOR
REGARDING THE SITE PLAN SUBMITTED TO THE SITE PLAN REVIEW AND
APPEARANCE BOARD FOR THE HOTEL VISTA DEL MAR DEVELOPMEtfi
The City Commission of the City of Oelray Beach, Rorlda held a quasi-Judicial
hearing on April 13, 2004. Having heard the testimony of the parties, based on the
entire evidentiary record, including but not limited to, the findings contained within the
staff report, the City Commission finds that there was substantial competent evidence to
grant the appeal.
(1) The Director of Planning and Zoning Board whose original determination was
being appealed, admitted on the record that his early determination was incorrect
because there was no legally existing site plan to be amended.
(2) The City Commission determined that based on the attached Court opinion,
a Class " modification to an existing site plan was inappropriate because there was no
valid legal site plan to be modified.
(3) By motion and vote the City Commission determined that the applicant must
seek review of the site plan before the City Commission in a de novo proceeding per the
Court opinion. In the altemalive, the City Commission informed the applicant that the
applicant, if it desires to do so, may submit the proposed modiflcalionlO tQtbesite plan to
the Site Plan Review and Appearance Board as a Class V site plan, or abandon the site
<
plan that was the subject of the writ of certiorari to the Circuit Court and Proceed tI'
submit a new site plan.to the Site Plan Review and Appearance Board. The motion was
unanimously passed 5 to O.
DONE AND ORDERED this
a~~ayof ~
DE B
By:
.2004.
COMMISSION
ATT .
~w~;ci;~'~' ~~:~
I HEREBY CERTIFY that the above order was sent by United slates mail to:
Charles Siemon, Esq., Siemon & Larsen, P A, 433 Plaza Real, Suite 339, Boca Raton,
FL 33432; Harvey E. Oyer, III, Esq., Gunster, YoakJey & Stewart, PA, m South
Aagler Drive, Suite #500 East, West Palm Beach, FL 33401-6194; Dennis P. Koehler,
Esq., 1280 North Congress Avenue, Suite 104, West Palm Beach, FL 33409; and Paul
Darling, Director of PlannIng and Zoning, City of Delray Beach, 100 N.W. 1st Avenue,
De/ray Beach,FL 334H on this ;).. qr;;;. of 0puY. .2004.
By:
EO THE CITY ATTi
Jr. fI
san A. Ruby, Esq.
City Attorney
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IN TIlE cm.curr COURT OF THE 1'11' umNrn JUDICIAL cm.curr
IN AND FOR PALM BEACH COUNTY, FLORIDA
VISTA DEL MAR, L.C.,
A FLORIDA LIMITED LIABILITY COMPANY,
APPELLATE DIVISION (CIVIL)
Petitioner,
CASE NO. S02004CAOO5508XXXXMB
v.
THE CITY OF DELRAY BEACH.
A FLORIDA MUNICIPAL CORPORATION,
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Respondent.
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JAM 1 8 2005
Opinion filed:
Petition for Writ of Certiorari from the City ofDcfray Beach, City COmmission
For Petitioner, Charles L. Siemon. Esq.,
Siemon & Larsen, Mimer Parle. 433 Plaza RcaI, Suite 339, Boca Raton. FL 33432
For Respondent, Susan Ruby, Esq., City Attomey, City ofPClray Beach. 201 NW 1st Ave,
Defray Beach, FL 33444
PER CURIAM
This is an administrative appeal via Petition for Writ ofCcrtiorari from the City
Commission of the City ofDelray Beach ("Cityj. This case is a rccwring appeal, the previous
appeal was Rosa Hotel v. Delray Beach, case no. 502001 APO I O405XXCTA Y. The appeal
centers around the Bcnhuda Inn located on AlA, just south of Atlantic Avenue. The Petitioner,
Vista Del Mar, L.LC. ("Petitioner''), wants to tear it down and build a five story hotel on the
location. The Site Plan andRevicw Board ("SPRAB'') approved a plan to build such a hotel.
Boston's restaurant brought an appeal and the City granted it The Petitioner filed a Petition for
RECEIVED
JAN 2 , 200S
Clfl :\TTORNEY
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Writ of Certiorari to this Court. This Court granted the Writ by finding that the City did not
folJow its own mles by failing to promulgate a written order. The Court remanded the matter and
specifically stated that Boston's appeal was still pending. The Court also stated that Boston's .
appeal should be heard de novo if the composition of the City Commission had changed:
Because the City's orders departed from the essential requirements of law, we grant
the Developer's Amended Petition. quash thc orders of the City Commission granting
the appeal, and remand the action back for further proceedings consistent with this
decision. We note that Boston's appeal rem,,;n. pending. However, if the City
Commission's composition has changed since the orders appealed, the appeal should
be considered de novo.
After this Court's Opinion, DO action was taJcen on Boston's appeal. The Petitioner then sought
new changes to the site plan and a new objector appealed. The City once again granted the
appeal and Petitioner filed a Petition for Writ of Certiorari arguing, inter alia, that the City once
again has not followed its own rules. Petitioner argues that (1) the Rosa Hotel opinion meant that
the initio/ SPRAB plan was approved because Boston's waived their right to appeal by failing to
prosecute it; (2) the new objector had no standing to objec~ and (3) the City Commission's
grounds for approving the appeal were flawed and DOt supported by competent evidence. In its
written order granting the second appeal, the City COmmission stated that (I) the Director of
Planning admitted that there was no legally existing site plan to be amended; (2) based on this
Court's decision in Rosa Hotel, the City COmmission detennined that a Class II modification to
an existing site plan was inappropriate because there was no existing site plan to be modified; (3)
by motion and vote the City COmmission determined that the applicant must seek de novo review
per the Court's opinion, or submit the Proposed modifications to SPRAB as a Class V site plan;
or finally, abandon the earlier site plan and submit a neW site plan to SPRAB. (R. I). These
[
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BARKDUll., McCARTIIY, and CROW, JJ.. concur.
.
IN TIm CIRCUIT COURT OF TIm FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: S02004CAOOSS08XXXXMB
VlSTADELMAR.L.C..
A FLORIDA LIMITED UABILlTY
COMPANY,
OpinionfDecision filed:
Petitioner,
Petition for W~t of Certiorari from the City
ofDclray Beach, City Commi,sion
v.
TIm CITY OF DELRAY BEACH,
A FLORIDA MUNICIPAL CORPORATION,
Petitioned: May 28, 2004
Respondent.
/ Rendered:
AFFlRMEDIREVERsED/OTHER: .
PBTmON GRANTIm
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JAM 1 8 2005
PANEL: Bar.kdull. McCarthv anti C~
PER CURIAM OPINIONIDEClSION BY:
DATE CONCURRING: ) DISSENTING: ) CONCURRING SPECIALLY: )
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IN THE CIRCUIT COURT OF THE FIFTEENTII JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
VISTADBLMAR, LC.,
a Florida Limited Liability Company,
APPELLATE DMSION (CIVIL)
CASE NO. S02004CAOOSS08XXXXMB
Petitioner,
Division: . A Y'
vs.
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THE CITY OF DELRA Y BEACH..
a Florida Municipal Corporation.
Respondent..
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BY ORDER OF THE COURT:
TIllS CAUSE came before the Court on Petitioner's Motion for Clarification. The Court
being fully advised in the matter, it is hereby
ORDERED and ADJUDGED that Petitioner's Motion for Clarification is DENIED.
ORDERED:
FEB 1 5 2005
c-
C JUDGE
cc:
Charles 1.. Simeon, Esq., 433 Plaza Real, Suite 339, Boca Raton, FL 33432
Susan A. Ruby, Esq., City Attorney, 200 NW 1st-AVE., DeJray Beach, FL 33444
.
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MANDATE
FRO M
CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA ~~- ~~
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This cause having been brought to this Court by appeal, and after due considc;ption the
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APPELLATE DMSION
court having issued its opinion;
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YOU ARE HEREBY COMMANDED that such further prl"'.I"".Ul1gs be had in said
cause in accordance. with the opinion of this Court, and with the roles of procedure and
laws of the State of Florida.
WITNESS THE HONORABLE THOMAS H. BARKDULL, m , Presiding Judge of the
Appellate Division (Civil) of the Fifteenth Judicial Circuit and seal of the said Court at
West Palm Beach. Florida on this day .
DATE: FEBRUARY 2Sm, 200S
CIRCUIT APPEAL CASE NO. S02004CAOOSS08XXXXMB;
COUNTY CASE NO.:
SHARON R. BOCK
.
. CLERK AND CO~LLER
Palm ach CQUDty, .~
· r'k...J o:t
By: PAIGE Deputy Cl r
ORIGINAL TO:
CC: DAVID A. CORE, ESQ., AND GENTRY DENISE BENJAMIN, SQ.
L.C. YS. CITY OF DELRA Y BEACH
RECElvr
FED 2 8 zoos
CITY AITORNEY