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04-05-94SpMtg APRIL 5, 1994 A Special Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Thomas E. Lynch in the Commission Chambers at City Hall at 6:00 P.M. Tues- day, April 5, 1994. Roll call showed: Present - Commissioner Jay Alperin Commissioner Ken Ellingsworth Commissioner David Randolph Commissioner Barbara Smith Mayor Thomas E. Lynch Absent - None Also present were - City Manager David T. Harden and City Attorney Susan A. Ruby Mayor Lynch announced that the meeting had been called for the purpose of considering the following: The City Attorney stated that the Special Agenda should be amended to include Items (5) Amendment to Interlocal Agree- ment/Delray Swap Shop); and Item (6) Ordinance 19-94); and to add a potential item as Item (7) Authorization for Agreement of Lawsuit between the City and the Woods of Southridge Homeowners Association. Dr. Alperin moved approval of the agenda as amended, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Mrs. Smith - Yes; Dr. Alperin - Yes; Mr. Randolph - Yes; Mr. Ellingsworth - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. 1, ¢0NDITIONAL USE/SCHOOL SITE "S": Consider Conditional Use request to establish Palm Beach County Elementary School Site 91-I (S-2) on a parcel of land zoned CF (Community Facilities). John Walker, Project Coordinator, stated that the proposed elementary school has a capacity of approximately 970 students. It is a two-story configuration and is proposed to be located east of Military Trail and south of Linton Boulevard. The action requested tonight is one of the last actions in a long series of efforts to bring an elementary school to the southeast portion of the City. Staff has reviewed the conditional use request and finds that the proposal is consistent with the Com- prehensive Plan and the Land Development Regulations. Compati- bility of the neighborhood will be met with the siting of the school on the west portion of the property and a provision of landscape buffers which exceed the code requirements. At its meeting of March 28th the Planning and Zoning Board reviewed the proposal and unanimously recommended approval of the conditional use and sketch plan. Upon question regarding the possibility of portable structures on the school site, Mr. Walker responded that the School Board has a policy that calls for the construction of new schools to be planned for potential expansion. He explained that the rationale for this concept is for the installation of water, sewer and utilities connections. Mr. Barcinski stated that the proposal under considera- tion tonight is relative to the sketch plan and noted that the final site plan is not required to appear before the City Commis- sion; however, the City will receive a courtesy review. Mr. Randolph asked, if the figures were available,,what percentage of the anticipated enrollment of the 970 students who will be attending this school are residents of Delray Beach. Dave Williams, representing the School Board, responded that the figures were not yet available. He explained that a tentative boundary study has been prepared and that the School Board will not be acting on the boundary issue until March, 1995. He noted that the majority of students who will attend the new school will be residents of Delray Beach.. Mr. Ellingsworth moved for approval of the conditional use request for School Site "S", seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mrs. Smith - Yes. Said motion passed with a 5 to 0 vote. APPEAL OF HISTORIC PRESERVATION BOARD DECISION/SLOAN HAMMOCK RENTAL COMPLEX: Consider reversal of H.P.B.'s denial of elevations for the Sloan Hammock Building. The City Attorney announced that the Commission will proceed with procedures for Quasi-Judicial Hearings and that the Acting City Clerk will swear in any witnesses who will be testi- fying on this issue. Diane Dominguez, Planning Director, stated that this is an appeal of the Historic Preservation Board's decision which relates to the building elevations for a triplex to be located in the Marina Historic District. The three-unit building is part of an overall redevelopment project which involves three residential structures. The applicant would like to add a second story to the current one-story structure and the addition is somewhat substan- tial. The addition will include a widow's walk and a cupola with an overall height of 35 feet. The Board felt that this would be too massive. The applicant then presented two options at the latest HPB meeting., Staff recommends that either of these op- tions would be an acceptable compromise. 2 4/05/94 Mark Krall, Attorney representing the applicant, point- ed out that the Historic Preservation Board approved the project and a Certificate of Occupancy was granted. Mr. Krall then gave a lengthy presentation and highlighted points of interest which were expressed by the Historic Preservation Board. Dan Sloan. property owner, emphasized the fact that the addition of the cupola is very minimal and felt that the cupola is aesthetically complimentary to the character of the area. Mr. Sloan pointed out that there are other cupolas located at Old School Square, Veterans Park and the Eighth Street Bridge House. Also, that the property to the north has two two-story structures whose roofs are higher than that of the proposal. Dan C~rter, Chairman of the Preservation Board, stated that the Board's primary concern was not of the roof structure, but of the scale of the structure in relationship to the sur- rounding buildings and to the project itself. He pointed out that the Historic Preservation Board worked very hard reviewing this project. Dr. Alperin commented that he had attended the Historic Preservation Board meetings when this item was reviewed and that the Board had spent a lot of time and effort evaluating this proposal. He was reluctant to go against the HPB's decision without a very good reason. Mayor Lynch pointed out that the Historic Preservation Board's action was not unanimous and pointed out that the vote was split 3 to 3. After discussion, the Commission felt that the cupola would add charm and character to the structure and would enhance its appearance. Mr. Randolph moved to uphold the Historic Preservation Board's appeal for approval of Option #1, Elevation "B" with a total height, including the cupola of 32'6", seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mrs. Smith - Yes; Dr. Alperin - No. Said motion passed with a 4 to ! vote (Dr. Alperin dissenting). At this point it was the consensus of the Commission to move Items (5) and (6) forward on the Agenda in order to accommodate the majority of individuals in the audience. 5, AMENDMENT TO INTERLOCAL A~REEMENT/DELRAY SWAP SHQPI Amendment to the Interlocal Agreement between the City and Palm Beach County authorizing the annexation of the Delray Swap Shop property. 3 4/05/94 Mr. Tolces, Assistant City Attorney, reported that Palm Beach County.as of this date granted approval of the Amendment to the Interlocal Agreement to allow for the annexation of the Delray Swap Shop property. He explained that the amendment is straightforward and addresses the authority of the State Statutes that the annexation can proceed. John Milledqeo Attorney representing the owner of the Delray Swap Shop, expressed appreciation to City staff for their cooperation and stated for the record that his client does not object to the City Commission taking action on the amendment. Mrs. Smith moved for approval of the Amendment to the Interlocal Agreement with Palm Beach County to allow the annexa- tion of the Delray Swap Shop property, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mrs. Smith - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said motion passed with a 5 to 0 vote. ORDINANCE NO. 19-94: First reading of an ordinance for Annexation, Small Scale Land Use Plan Amendment from County CH/5 (Commercial High Intensity-Residential equivalent of 5 units per acre) to a City Future Land Use Designation of GC (General Com- mercial), and Initial Zoning of GC (General Commercial) for the Delray Swap Shop. The City Manager presented Ordinance 19-94. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ANNEXING TO THE CITY OF DELRAY BEACH, A PARCEL OF LAND LOCATED AT 2001 NORTH FEDERAL HIGHWAY, AND BEING MORE PARTICULARLY DESCRIBED HEREIN, WHICH LAND IS CONTIGUOUS TO EXISTING MUNICI- PAL LIMITS OF SAID CITY; REDEFINING THE BOUNDARIES OF SAID CITY TO INCLUDE SAID LAND; PROVIDING FOR THE RIGHTS AND OBLIGA- TIONS OF SAID LAND; AFFIXING AN OFFICIAL LAND USE DESIGNATION TO THE FUTURE LAND USE MAP AS CONTAINED IN THE CITY OF DELRAY BEACH COMPREHENSIVE PLAN FOR SAID LAND; ELECTING TO PROCEED UNDER THE SINGLE HEARING ADOPTION PROCESS FOR SMALL SCALE LAND USE PLAN AMEND- MENTS; PROVIDING FOR THE ZONING THEREOF TO GC (GENERAL COMMERCIAL) DISTRICT; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. The City Attorney read the caption of the Ordinance. Mr. Ellingsworth moved for adoption of Ordinance 19-94 on First Reading, second by Mrs. Smith. Upon roll call the Commission voted as follows: Mrs. Smith - Yes; Dr. Alperin - Yes; -4- 4/05/94 Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. 7, VOLUNTARY ANNEXATION AGREEMENT/DELRAY SWAP SHOP: Mr. Randolph moved to postpone the voluntary annexation agreement of the Delray Swap Shop, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mrs. Smith - Yes. Said motion passed with a 5 to 0 vote. At this point the Commission returned to the remaining items on the Agenda: Items (4), (5) and (7). FINAL pLAT/HANCOCK SUBDIVISION: Consider approval of the final plat for the Hancock Subdivision, a proposed two lot subdivision located at 622 North Ocean Boulevard (State Road A-i-A), pursuant to LDR Section 2.4.5(K), Minor Subdivisions. The City Attorney announced that the Commission would proceed with the procedures for Quasi-Judicial Hearings and that the Acting City Clerk will swear in all witnesses who will be testifying on this issue. Diane Dominguez, Planning Director, stated that the proposal will create two platted lots, one on either side of A-1-A. As proposed, the lot on the west side would more than meet the minimum lot dimensions for R-i-AAA requirements; however, Lot 2 on the east side, does not meet the requirement. Ms. Dominguez explained that there is a provision in the present code which allows for lots which were created after October of 1990 to meet the minimum requirements, if the Commission deems it necessary and appropriate to create such a nonconformity. She noted that staff has discussed with the applicant the necessity to comply with standards of the City's Coastal Protection Ordinance. A topographic survey was submitted and they have agreed to do a mitigation plan which will create a dune and improve stability of the beach over and above existing conditions. If the subdivision is approved, this mitigation should be made a condition of the approval. Also, the Commission might consider as a condition, limiting the size of the building envelope which could possibly help to preserve some views and keep the structure more in char- acter with surrounding development. Roger Saberson, Attorney representing the applicant, stated that his clients view the lot which is located east of A-1-A to qualify at the present time as an existing nonconforming lot of record that does not require any specific approval. He pointed out that the lot was originally approximately 3,000 square feet, which is more than the standards for R-i-AAA zoning and what caused the property to be less was beyond the control of the property owner, since it was the Erosion Control Line and the ocean which reduced the size of the property. He noted a provi- -5- 4/05/94 sion in Chapter 161 that the owner of the land east of the Ero- sion Control Line continues to have all common-law rights. Mr. Saberson made a lengthy presentation and provided an aerial photograph highlighting points of interest of surround- ing properties in the area. Mr. Saberson informed the Commission that he would have a number of witnesses testifying for his case and would also have a number of Petitioner's Exhibits to present for the record. The City Commission accepted Petitioner's Exhibits (1) through (58) as part of the record and as evidence for these proceedings. For the purpose of clarification, there were a total of 58 Exhibits; however, the listing of Exhibits presented to the Commission by Mr. Saberson listed a total of 60 Exhibits (Exhibits No. 21 & 22 had been deleted prior to this meeting). Michael Weiner pointed out that it is his applicant's obligation to present documents prior to a hearing and adamantly voiced his objection to the number of exhibits being admitted as part of the record due to the fact that they were not submitted prior to this hearing. B~n Kennedy, representing Mr. and Mrs. Eichelberger, owners of property which is located directly north of 622 North Ocean Boulevard, voiced his objection to the exhibits being admitted as part of the evidence because he did not have the opportunity to view the exhibits prior to this meeting. The following individuals testified as witnesses for Mr. Saberson: Jerry Sanzone, Chief Building Official, testified for Petitioner's Exhibit 10A (aerial photograph). Mr. Sanzone stated that the property designated as the Wilson property has been granted a Certificate of Occupancy. Also, that the property which is located immediately north of the Hancock property has been legally permitted and is presently under construction. Pat Cayce, Historic Preservation Planner, stated that the Hancock property and the Wilson property have the approxi- mately the same historic value and both would be qualified for the National Register. She noted that they were built two years apart by the same architect. The property known as the Foxe Fontaine home, 610 North Ocean Boulevard was built in 1935 and the property located at 622 North Ocean Boulevard was built in 1937. Ken Weigand, Land Surveyor, testified for Petitioner's Exhibit 22. Mr. Weigand stated that he had prepared the Hancock Subdivision and plat. $~n Reddick, Professional Planner, testified for Petitioner's Exhibit 57. Mr. Reddick confirmed that the proposed -6- 4/05/94 subdivision is consistent with the City's Comprehensive Plan and that the property on the east side of A-1-A is already an exist- ing lot which qualifies as a lot of record according to the Land Development Regulations. He pointed out that the lot on the east side of A-1-A is an existing lot and could be used without any special policies. Mr. Reddick explained the reason for the smaller lot dimension is the fact that the Erosion Control Line took that land from the individual. Further, that when land is taken without compensation the areas and uses of that land in determining density, setbacks, etc. may still be used. He point- ed out that if variances should be determined necessary, the specific standards established by the LDR's are met by this specific proposal, particularly that the smaller lot dimensions were reduced by action of the State of Florida thereby reducing the size of the lot. Robert H. Barron, Coastal Dune Restoration Consultant and Landscape Installer, testified for Petitioner's Exhibits 18 and 59. Mr. Barron concluded that the Hancock property which is located east of A-1-A will have more ecological value after the implementation of the project than the value of the property as it currently exists. Also, that the project and exhibits which he referenced this evening qualify for permits under the regula- tions of the Coastal Protection Ordinance. Robert B. Banting, Real Estate Appraiser, testified for Petitioner's Exhibit 24 (Land Appraisal Report). Mr. Banting stated that he was asked to appraise the Hancock property, assum- ing that it was a buildable lot that could be improved in keeping with the neighborhood. He concluded that, based on that assump- tion, the property was valued at $725,000. Mr. Banting then gave testimony that the extreme western portion of the property falls within Flood Zone C and the balance of the property falls with Flood Zone B. He noted that both zones normally are required for flood insurance. Rhonda Harrell, Architect, testifying for Exhibit 53, stated that in her professional opinion a single family home could be designed for the Hancock property which is located east of A-1-A and would comply with the R-i-AAA requirements, includ- ing the standards for the Coastal Construction Line as set forth in the Land Development Regulations. Barbara Whitaker, Real Estate Broker, testified for Exhibit 10A. Ms. Whitaker stated that her office has the multi- ple listing for the Cusson property and that the asking price is over one million fifty thousand dollars. At this point Mr. Saberson referenced Exhibit 10B which indicated the relationship of the Hancock property to construc- tion which has occurred along the beach area, east of A-1-A. Ken Weigsnd, Land Surveyor, testified for the second time in reference to Exhibit llA which he had prepared. This -7- 4/05/94 exhibit reflects homes which are located north, east and south of the Hancock property relative to the current standards for the Coastal Construction Line. At this time Mr. Saberson requested to reserve the right to question witnesses for the opposition and to be allowed to rebut any evidence that may be presented. Upon question relative to the procedures which were being followed, the City Attorney stated that according to the Quasi-Judicial procedures, the rules prohibit the opportunity to present rebuttal testimony. Ben Kennedy, Attorney representing Mr. and Mrs. Eichelberger (owners of property directly north of 622 Ocean Boulevard), requested that the Commission consider postponement of this item. Mr. Weiner was disturbed regarding the testimony which was presented and stated that he was caught by surprise and was not prepared to rebut testimony. He objected to reference made by the opposing attorney regarding his clients motivation when they have as yet not presented their testimony. Mr. Weiner commented that under those circumstances, where there are approx- imately 60 exhibits which have not been presented to staff, and where a valid conclusion has been reached without these exhibits, why it is necessary to have them tonight. With these two issues at hand, he felt the request for postponement was valid. Mr. Saberson stated that relationship to Mr. Weiner's clients' motivation is his own personal belief, and the Commis- sion could draw whatever belief it may have on the evidence. He pointed out that the evidence is based upon certified copies of instruments that are recorded in the public record and/or record- ed at the Tax Collector's Office and are reflected on a listing agreement from Mr. Weiner's clients' agent. Mr. Saberson stated that he would be very much opposed to a postponement and pointed out that this issue has been pending for a long time. He empha- sized that Mr. Weiner has had more than adequate time to gather testimony and evidence. Mr. Saberson stated that a survey had been conducted on his client's property and that he even offered to pay half of the cost of the survey if he could receive a copy; however, he did not receive one. Furthermore, he adamantly opposed the request for postponement. Dr. Alperin stated that he would not like to see any prevention for either attorney to view the other's exhibits. He emphasized that he did not want to see either side present new exhibits when the postponement is resumed so that the same argu- ments cannot be repeated. Mrs. Smith wondered how pertinent the exhibits pre- sented tonight relate to the Commission's decision regarding the plat approval. -8- 4/05/94 Upon question regarding whether each attorney had been given an opportunity to view the other's exhibits, the City Attorney explained that the City does not need a written require- ment. The City Attorney pointed out that the Quasi-Judicial rules offer guidance for a hearing and does not present discovery rules required of the applicant. Mayor Lynch did not want to grant a postponement with the idea of having testimony presented again; however, he did not feel that the process was fair and that both sides should have given access to their exhibits in advance. He recommended post- ponement with the understanding that the attorneys make available all documents and exhibits one week prior to the next scheduled meeting on this issue. Mayor Lynch stated the following for the record: that Mr. Saberson's case will remain open, however, he would continue where he left; that a list of documents be avail- able for each opposing side; and, that a list of said documents be submitted to the City Attorney's Office by all attorneys involved. The hearing date will be tentatively scheduled for two weeks from today unless the City Attorney, at her discretion, decides to postpone. Mr. Ellingsworth moved for continuance to the Regular Meeting of April 19, 1994 unless otherwise determined by the City Attorney, seconded by Mr. Randolph. Upon roll call the Commis- sion voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mrs. Smith - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. At this point the Commission took a five minute recess. 4. LAND USE RESTRICTION AGREEMENT/THE GROVES & WOODS OF ~ Approval of the land use restriction agreement between the City and The Groves and Woods of Southridge. David Tolces, Assistant City Attorney, explained that the land use restriction agreement addresses the concerns which were initially raised by the Woods of Southridge Homeowners Association. He noted that when the site plan was approved one of the conditions of approval was that the developer enter into an agreement with the City restricting the development to senior citizens. As indicated in his recent memorandum, Mr. Tolces explained that the developer is agreeing to have at least 75% of the units occupied by one person at least 62 years of age or older; and that all the units will be occupied by persons who are at least 55 years of age or older. The Homeowners Association has worked with the developer in reaching this agreement and the City Attorney's Office has deemed it as acceptable to the City. He noted that this agreement will be recorded and will run with the land so that whoever operates the complex will be bounded by the terms of this agreement. -9- 4/05/94 It was noted by Mr. Tolces that there are provisions in the agreement that can be enforced should the Homeowners Associa- tion find that they are not complying with the terms of the agreement. The City Attorney stated that the agreement also states the complex will be used solely for the purpose of providing multiple housing for older persons as defined by a certain United States code section which provides for housing of individuals over a certain age. After a lengthy review of the agreement, it was empha- sized by Mr. Tolces that the Homeowners Association will be doing most of the policing of this agreement and will assure that there is compliance and if not, they will come to the City if there is a problem. Mayor Lynch suggested that an addition be made as to the agreement, Section II, Item (f) which would address the issue if there is not a person 55 years or older present in one of the units. Lengthy discussion ensued regarding compliance of the agreement against the developer should there be any violations regarding age limitations. Mr. Randolph moved for approval of the Land Use Re- striction Agreement with The Groves and Woods of Southridge as amended, seconded by Mrs. Smith. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mrs. Smith - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. Regarding the pending law suit, Mr. Tolces stated that in conjunction with the passage of the Land Use Restriction Agreement just passed by the Commission, the Woods of Southridge Homeowners Association have no further concerns regarding the approval of the site plan being inconsistent with the City's Comprehensive Plan; therefore, they are willing to drop the lawsuit against the City with each party bearing their own fees and costs. Mr. Randolph moved approval by the Woods of Southridge decision to drop the lawsuit against the City of Delray Beach, seconded by Mrs. Smith. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mrs. Smith - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said vote passed with a 5 to 0 vote. Mayor Lynch declared the meeting adjourned at 10:00 P.M. -10- 4/05/94 The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the min- utes of the April 5, 1994, Special Meeting of said City Commis- sion, which minutes/were formally approved and adopted by the City Commission on ~~ /9, /~9~ -- ~ City C~erk -' ! NOTE TO READER: If the minutes that you have received are not completed as indi- cated above, then this means that they are not the official minutes of the City Commission. They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions or deletions to the minutes as set forth above. -11- 4/05/94