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11-10-87 NOVEMBER 10, 1987 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Doak S. Campbell in the Commission Chambers at City Hall at 7:06 P.M., Tuesday, November 10, 1987. 1. Roll call showed: Present - Commissioner Richard J. Dougherty Commissioner Marie Horenburger Commissioner Mary McCarty Commissioner Jimmy Weatherspoon Mayor Doak S. Campbell Absent - None Also present were - Acting City Manager Robert A. Barcinski and Assistant City Attorney Jeffrey Kurtz. 2. The opening prayer was delivered by Reverend Ralph Phipps, Trinity Lutheran Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. Mayor Campbell presented a proclamation proclaiming November 15-21, 1987, as "Alzheimer Public Awareness Week". Mary Barnes, Executive Director of ADRDA, came forward to accept the proclamation. 5. Mr. Dougherty requested that Items 22, 23, 24 and 25 be deleted from the agenda. They all concern appointments to boards and he feels that any action taken tonight would be contrary to the amendment they approved a month ago with respect to advertising and interviewing candidates before they come to the Commission. Mrs. McCarty stated the way they set up the agreement, inter- views were not mandatory. She feels that perhaps they should change this to require that the applicants attend a workshop meeting so that the Commission can hear from them. She would like to instruct staff that when applications come in, the Commission receives them immediately instead of the Friday before a Tuesday meeting. She is prepared to go ahead with the Board of Adjustment appointments tonight as they have already postponed two meetings. Assistant City Attorney Kurtz stated he believes the BOA is not meeting until November 19th. Mayor Campbell requested that they place Items 22, 23, 24 and 25 on a special meeting agenda for next Tuesday night. The Acting City Manager advised that staff is requesting that Item 28 be removed from the Regular Agenda. Mrs. Horenburger moved to approve the agenda with the removal of Items 22, 23, 24, 25 and 28, seconded by Mr. Weatherspoon. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. PUBLIC HEARING 6. Ordinance No. 92-87 - Amending Zoning Code - Increasing Land Development Application Fees. Ordinance No. 92-87, amending Chapter 30 "Zoning" of the Code of Ordinances relative to increasing the land development application fees and Board of Adjustment fees, is before the Commission for consideration on Second and FINAL Reading. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The Acting City Manager presented Ordinance No. 92-87: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 30, "ZONING", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 30-4.5, "LAND DEVELOPMENT APPLICA- TION FEES", BY INCREASING THE FEE SCHEDULE FOR LAND DEVELOPMENT PROCEDURES; BY AMENDING SECTION 30-29, "SCHEDULE OF FEES, CHARGES AND EXPENSES", BY INCREASING BOARD OF ADJUSTMENT FEES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 92-87 is on file in the official Ordi- nance Book) Mrs. Horenburger left the Commission Chambers at this time. The Assistant 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. The public hearing was closed. Mr. Weatherspoon moved for the adoption of Ordinance No. 92-87 on Second and FINAL Reading, seconded by Mrs. McCarty. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 4 to 0 vote. 7. Ordinance No. 93-87 - Amending Code - Increasing Parkinq Meter Fees. Ordinance No. 93-87, amending Chapter 26 "Traffic" of the Code of Ordinances relative to increasing the cost of parking a vehicle in a parking meter space, is before the Commission for consideration on Second and FINAL Reading. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been sched- uled to be held at this time. The Acting City Manager presented Ordinance No. 93-87: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 26, "TRAFFIC", ARTICLE II, "STOPPING, STANDING AND PARKING" , DIVISION 3 . 5 , "PARKING METER ZONES", SECTION 26-67, "PARKING TIME LIMITS", SUBSECTION (a) BY INCREASING THE COST OF PARKING A VEHICLE IN A PARKING METER SPACE; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 93-87 is on file in the official Ordi- nance Book) The Assistant 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. The public hearing was closed. Mr. Weatherspoon moved for the adoption of Ordinance No. 93-87 on Second and FINAL Reading, seconded by Mrs. McCarty. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 4 to 0 vote. 8. Ordinance No. 94-87 - Amending Code - Increasing Permit Fee for Storing Boats. Ordinance No. 94-87, amending Chapter 17, "Parks, Beaches and Recreation" of the Code of Ordinances relative to increasing the permit fee for storing boats in the area designated on the municipal beach, is before the Commission for consideration on Second and FINAL Reading. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The Acting City Manager presented Ordinance No. 94-87: -2- 11/10/87 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 17, "PARKS, BEACHES AND RECREATION", ARTICLE II, "MUNICIPAL BEACH", SECTION 17-31, "STORING BOATS", SUBSECTION (f) BY INCREASING THE PERMIT FEE FOR STORING BOATS IN THE AREA DESIGNATED ON THE MUNICIPAL BEACH; PROVIDING A REPEALER CLAUSE; PRO- VIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 94-87 is on file in the official Ordi- nance Book) The Assistant 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. The public hearing was closed. Mr. Weatherspoon moved for the adoption of Ordinance No. 94-87 on Second and FINAL Reading, seconded by Mrs. McCarty. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 4 to 0 vote. Mrs. Horenburger returned to the Commission Chambers at this time. 9. Sale of Public Lands - Procacci Development Corporation. A 'cOntinuation of the Public Hearing on the proposed sale of City property located in Section 20, Township 46 South, Range 43 East and selection of public housing project developer, is before the Commission for consider- ation. Mayor Campbell stated he will not be sitting in on this item as his law firm has done business with both parties involved in this issue. Mayor Campbell left the Commission Chambers at this time and Vice-Mayor Horenburger took the chair. The Acting City Manager advised this item was continued to allow the Commission time to review data which was submitted late on November 3rd, to allow time for additional information to be submitted by any other proposers or the original proposer, to make a determination concerning the land acquisition from the Housing Authority and to give the City Attorney time to review any legal issues. The Commission received, in their package, some additional information received from the F.P.A. Corporation last Friday. Tonight at 5:30 P.M., he received another proposal from the F.P.A. Corporation and the Commission has been furnished copies. Assistant City Attorney Kurtz stated he received F.P.A.'s proposal at the same time as the Commission and, in taking a brief look at it, it looks to be very similar to the Procacci proposal. If the Commission decides to go with the Procacci proposal they may express their intent to do so and tentatively approve the contract, subject to their being further notice provisions. There has to be a publication in the newspaper and for thirty days they will hold the land available to other proposals. If there is no proposal superior to Procacci's they can then execute the contract. Upon question by Vice-Mayor Horenburger, Assistant City Attor- ney Kurtz advised the further notice provisions arose because of Florida Statute 163.380 which they were not aware of until yesterday. The sale of the lands was advertised pursuant to the City's ordinances; however, it lies within the CRA district and, therefore, they also have to comply with Section 163.380. Under that section, if a county, municipality or CRA wants to sell land within a CRA district they have to comply with this particular notice provision. Vice-Mayor Horenburger questioned if they have a problem in considering any other proposal tonight because of the way they advertised the sale of the lands. Assistant City Attorney Kurtz stated they could consider another proposal in the sense that they could reject Procacci's offer; however, they could not accept any other offer based on the previous advertising. If the Commission decided to go with another offer they would have to readvertise. Vice-Mayor -3- 11/10/87 Horenburger stated that that means that any voting or approval can only be on the Procacci offer and it could only be tentative subject to further notice and further submittal of proposals. Upon question by Mr. Dougherty, Assistant City Attorney Kurtz stated that legally they could accept the Procacci offer since what they would be doing is tentatively approving the contract offer. The Commis- sion and Procacci would know that other proposals could be submitted within 30 days and if they determined that one was better than the Procacci offer, they could accept that one. There is nothing binding upon the City by tentatively approving the Procacci contract. The offer before the Commission tonight is contingent upon a UDAG application being submitted and approved. Mr. Weatherspoon stated that, according to Assistant City Attorney Kurtz, they could go forward with this agreement and have it contingent upon the advertising they have to do. The only problem he can see with this is that assuming they did get a better offer, in the interim they have moved forward and the City has spent x amount of dollars. If they kill the UDAG, that means they lose the funds they have invested. Assistant City Attorney Kurtz stated that would be correct unless they amended the contract to place those monetary respon- sibilities on the developer. He is not sure whether or not they would be willing to take that risk. Upon question by Mr. Weatherspoon, Assistant City Attorney Kurtz stated that if the Commission comes out and states that they knew all the time they were going to go with Procacci and not truly consider other offers which may come in, there could be some potential legal liabilities. Hopefully, nobody will say or think that and will under- stand that this is a tentative approval and may be rejected in a month. Mrs. McCarty stated they have been working on this project for approximately four months. They have advertised twice in two weeks for new offers; however, yesterday a technicality was found and they do need to do some additional advertising. They have until tonight to decide if they want to go ahead with this particular grant. Although she is willing to consider any other options which come forward in the next 30 days, she is not willing to stop the progress which has been made. Upon question by Mr. Dougherty, the City Clerk advised the sale of the land was advertised in The News of Delray on October 23rd and 30th. Upon question by Mr. Weatherspoon as to whether or not they are willing to move forward on the conditions as outlined by the Assistant City Attorney, Tom Henners, Executive Vice-President of Procacci Devel- opment Corporation, stated that they are willing to enter into the agreement contingent upon the potential of other proposals coming in. Bill Jacobson, representing F.P.A. Corporation, stated they submitted a document today for the Commission's consideration this evening. It is a new structure of a contract which is fashioned after the proposals which the Commission has been considering over the last few weeks; this includes the consideration of a UDAG. They have been told by members of staff that the City is not inclined to own the project; therefore, they restructured their proposal to be consistent with the proposal from Procacci. He would like to suggest that the ground rules of how this development is going to be considered be established by the City prior to the time any decision is made as to who the developer is going to be. It should be based on the requirements of the Florida Statutes which state that the City has to consider the financial and development capabilities of all of the participants. F.P.A. Corporation is requesting that they be given the right to act on equal footing with everyone else. Mr. Dougherty stated that what they have before them is a legal impediment to awarding a contract to anyone at this point as they have not complied with the State Statutes. He feels that if they advertise they could get three, four or five proposals; he questioned what they would then do. Upon question, Assistant City Attorney Kurtz stated that if the Commission remains open to any proposals he does not feel there -4- 11/10/87 will be a legal problem. He stated he would also note that despite Mr. Jacobson's objections, he has submitted a contract which contemplates exactly the same thing as the Procacci contract. If Mr. Jacobson is concerned, he would question why he duplicated the contract to the extent he did. Mr. Weatherspoon stated that if they commit x amount of dol- lars, that is commitment to him and he is sure that an attorney would argue that point. He would like to see this project move ahead as quickly as everyone else would; however, because of the legal technical- ity he could not move forward with the project. Upon question by Vice-Mayor Horenburger, Assistant City Attor- ney Kurtz stated that he feels they can comply with Florida Statute 163.380. It is a policy decision as to whether or not the Commission wishes to go ahead, but legally, he feels they can do so. Jeanette Slavin, Rainberry Bay, stated that many residents were here when the Procacci developers brought a site plan in. She ques- tioned if the decision being made tonight is with regard to that site plan. Vice-Mayor Horenburger stated they are deciding on the sale of public land. Mrs. McCarty stated she would like to ask Mr. Henners if he has any comments about the quarterly UDAG application process and why they need to decide on this tonight. Mr. Henners stated that the next application date is March 30th and this housing is needed now. Procacci has done all of the ground work and they have fair indications that they will be successful in their UDAG application. They will reimburse the City for whatever funds are expended, other than for its own staff. He agrees with Mr. Kurtz that the City is in a good position legally and they will back up that potential expense also. Mr. Dougherty stated he would like to raise a question about the cash flow projections. There is no indication in the projections of any expenses involved in the financing of $8.5 million, with regard to the first mortgage. Mr. Henners stated they cannot apply to a lender until they have a purchase contract or indication that they would have a contract executed a month from now. Therefore, it is impossible to receive a definite commitment with respect to the mortgage loan. Mr. Dougherty stated that one of the conditions is that they would be able to finance it within a twelve percent value and not to exceed $8.5 million. He questioned what assurance the City has that they are going to be able to do this. Mr. Henners stated he has verbal assurances from several lenders who would be willing to do this. No lender will spend the time examining a loan and project until the person making application has some indication that he will own the land. Mr. Dougherty stated that last night the City made some commit- ments in purchasing land from the Housing Authority; they guaranteed payment of not less than $30,000 per year for five years or until such time as the total cost of the land is paid. He questioned if this has been incorporated into Procacci's bill of sale. Mr. Henners advised the amount was $25,000 per year and they offered, in writing, to pay those amounts towards the $1.1 million which the City is lending. Mr. Dougherty stated that it is not part of the bill of sale which is in front of the Commission. Upon question by Vice-Mayor Horenburger, Assistant City Attorney Kurtz advised that it has not formally been placed into the agreement; however, that could be done tonight. Upon question by Mr. Dougherty, Assistant City Attorney Kurtz advised that the agreement does contemplate a waiver of some of the fees. Mr. Dougherty stated he feels that one of the things they should include in the contract is to state that the whole project is contingent upon the estimates they have received so far. This would -5- 11/10/87 make it clear that the City does not become obligated in the event that the cost of the project exceeds $17.6 million. By the same token, there should be some given figure for the construction costs, otherwise they could skyrocket. Mr. Henners stated they are taking all of the risk in this project and will not allow them to skyrocket. However, if it should happen they would be responsible. The Assistant City Attorney clarified that the Commission wishes to limit the City's involvement in the project. Mr. Dougherty stated, with regard to Section 5, that it states "Buyer may elect to extend those dates an additional 90 days, but if Buyer elects not to do so...". He feels this should state the Buyer and Seller must agree to extension of time. It was the consensus of the Commission to modify this paragraph to add "Buyer or Seller". Mr. Henners stated they would like the provision to also state "which agreement shall not be unreasonable". It was the consensus of the Commission to agree to also add that statement. Mr. Dougherty stated that Paragraph B, Section 5, states that "The interest will start to accrue after the initial two years of operation of the project". He feels that the interest should be accumu- lative from the start of the project, rather than two years later. Mr. Dougherty stated that in Paragraph F, Section 5, he would like to add a sentence which would state that the second mortgage annual repayment shall not be less than $25,000 per annum. Assistant City Attorney Kurtz suggested that this sentence may be better placed in Paragraph D, where they talk about the repayment. Upon question by Mr. Dougherty, Assistant City Attorney Kurtz advised the signability clause has been changed. Procacci may assign, but only to a limited partnership wherein Procacci Development Corpora- tion is a general partner. The reason for this provision is that this is how they contemplate getting the equity financing. The public hearing was closed. Assistant City Attorney Kurtz advised there are some minor items he has discussed with Mr. Procacci which he feels they have agreement on, but are not part of the contract. It was alluded to tonight that there would be a hold harmless provision in case of any litigation; this was discussed in the context of Section 2.A. There is also a phrase to be added to Section 3.B. which would read "commence, to the extent permitted by law". With regard to Section 3.E., they had discussed the possibility of there being either a cap, limiting the amount the City would be liable to pay, some kind of split on those expenses or that there be pre-approved language in there so that the City would know what it was obligating itself to before any expenses were incurred. He questioned which provision Procacci would prefer. Mr. Henners stated they would prefer to make the City fully aware of what the expense would be and they could then either approve or dis- approve that expense. Assistant City Attorney Kurtz stated that in Section 4 there was to be a paragraph added dealing with the fact that Procacci would have to reaffirm the warranties that they made at the time of closing. In Section 7, N is also inapplicable to this trans- action. It is also not clear what would happen to the deposit if this contract is not completed, and what would trigger the forfeiture of the deposit to the City. Mr. Henners stated his understanding is that if they breach the contract the deposit would be forfeited, but not for any other reason. Vice-Mayor Horenburger clarified that if they are going to do anything at all it is to tentatively approve the contract and advertise so that in 30 days they can make a final decision. Assistant City Attorney Kurtz stated it would be to tentatively approve, with the changes made tonight. Mr. Weatherspoon moved to approve the sale of the public land to Procacci Development Corporation, subject to the advertising which has to take place and the modifications incurred tonight, and that any other proposals would be fully considered and that the developer is at risk, seconded by Mrs. McCarty. Upon roll call the Commission voted as -6- 11/10/87 follows: Mr. Dougherty - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Vice-Mayor Horenburger - Yes. Said motion passed with a 4 to 0 vote. CONSENT AGENDA The following items were considered by the Commission as the Consent Agenda: 10. Request for Solicitation of Funds - Delray Beach Post 266, Jewish War Veterans of USA. The Commission is to consider approving solicitation from November 8 through November 13, 1987. Approval is recommended. 11. Request for Solicitation of Funds - Delray Rocks Football 'League. The Commission is to consider approving solicitation on Novem- ber 21, 1987. Approval is recommended. 12. Request for Solicitation of Funds - Arthritis Foundation. The Commission is to consider approving solicitation from January 18 through January 31, 1988. Approval is recommended. 13. Request for Solicitation of Funds - American Heart Association, Palm Beach County Chapter, Inc. The Commission is to consider approving solicitation of funds from March 1 through March 15, 1988. Approval is recommended. 14. Community Development Block Grant Activity Code Enforcement Activities/Program Description. The Commission is to consider approval of proposed program description for implementation of a Systematic Door-to-Door Code Inspection Program in the Community Development Block Grant target area. Approval is recommended. 15. Renovation of Restrooms at Adult Center. The Commission is to consider award of a contract to the low bidder, RPM Construction Compa- ny, in the amount of $18,200 for upgrading of restrooms and make handi- cap accessible, with funds to come from the 1987-88 budget. Approval is recommended. 16. Microfilm Equipment for Police Department. The Commission is to consider award of a contract to Bell & Howell for planetary camera, reader printer and conversion to reel film for Police Information Services Section in the amount of $25,496, with funds to come from the Law Enforcement Trust Budget. Approval is recommended. 16.a. Special Services Unit for Fire Department. The Commission is to consider award of a contract to the low bidder, W.F. Mickey Body Company, for a special services unit to replace a 1977 model van pres- ently serving as our hazardous materials response vehicle in the amount of $48,693, with funds to come from the Utility Tax Bond Fund. Approval is recommended. 17. Final Plat Approval - Lehman Auto Dealership. The Commission is to consider a request for final plat approval for Lehman Auto Dealer- ship, a proposed automobile sales and service facility consisting of four separate dealerships, located on the west side of South Federal Highway, between Lindell Boulevard and the C-15 Canal. The Planning and Zoning Department recommends approval. 18. Tent Application - Lehman Volkswagon. The Commission is to 'consider approval of a request from Vince Stravo, General Manager of Lehman Volkswagon, 2225 South Federal Highway for 30' x 30' tent to be used for a car sale from November 13 through November 15, 1987. Approv- al is recommended. 19. Improperly Sized Windows. The Commission is to consider a 'policy to allow staff to issue an advisory letter to property owners of existing structures of improperly sized windows. Approval is recommend- ed. Mr. Weatherspoon moved to approve the Consent Agenda, seconded by Mrs. McCarty. Upon roll call the Commission voted as follows: Mr. -7- 11/10/87 Dougherty - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Vice-Mayor Horenburger - Yes. Said motion passed with a 4 to 0 vote. Vice-Mayor Horenburger declared a recess the time being 8:50 P.M. The meeting was reconvened at 8:53 P.M. REGULAR AGENDA Mayor Campbell returned to the Commission Chambers at this time. Planning, Development and Engineering 20. Site Plan Approval - Delray Town Center (Pugliese). The Commission is to consider a request for site plan approval for Delray Town Center, located at the northeast corner of Linton Boulevard and Military Trail. The Planning and Zoning Board recommends denial. Sid Soloway, member of the Planning and Zoning Board, stated he has an objection to the Commission hearing this petition. When this was brought before the P&Z Board, the Planning Director stated that if they did not approve two items they did not have to look at the site plan. He does not feel that the site plan should come before the Commission before the P&Z Board has looked at it. Bob Basehart, representing the developer, stated that Mr. Kovacs, Planning Director, had recommended two items which he felt were very important; one was relative to donation of right-of-way and the other was relative to the access arrangement of their easterly driveway on Linton Boulevard. Mr. Kovacs suggested that the P&Z Board should review these two items and then send them to the Commission for a determination. They felt that this was not appropriate and that the entire site plan should be done at once. Since then, they have had several meetings with Mr. Kovacs and they are prepared to make an amendment to the site plan which would accommodate the two issues. They would like to take the entire matter back to the P&Z Board so that all of the relative issues which should be considered can take place. Mrs. McCarty stated that when the developer came before the P&Z Board, they wanted to discuss possible compromises and ways the right- of-way and dedication could be worked out. They stated that there was no way it could be worked out and they would take their chances at the Commission level. Now they have been able to work it out and she feels it is more than just a decision on whether to send it back to P&Z, it is a policy decision for the Commission. The Commission should be voting on what was presented to the P&Z Board with the exact information which was given at that time. Mr. Basehart stated they have spent a lot of time looking at the site plan, redesigning it and making adjustments to try and accommo- date what the County and City wants. They would like to have an oppor- tunity to discuss all the issues with the P&Z Board. Upon question by Mrs. Horenburger as to whether or not the two issues were the only grounds on which the site plan was denied, Mr. Kovacs stated that they were not; the formal motion from the P&Z Board had other items cited in it. Mr. Dougherty stated he feels the real issue is whether or not the proposal, as it is now being considered, meets all the requirements of the Code. The testimony given the last time this was considered indicated that there were at least seven issues which did not conform to the code. Mr. Basehart stated they meet all the requirements of the zoning code and the uses proposed for the shopping center are allowed uses in the LC District. If there are problems with the site plan related to zoning requirements, he would like to know what they are as no one has enunciated them to him. -8- 11/10/87 Mayor Campbell advised there are five reasons indicated in a memorandum reiterating what was presented to the P&Z Board as a basis for denial. Upon question by Mrs. McCarty, Mr. Kovacs stated the P&Z Board did discuss the intensity of the use and that was one of the five reasons cited in the motion. The site plan could not be approved because of two major outstanding items and, therefore, there was no purpose to go further since the applicant stated he could not change the site plan in any matter. Of the five items, one is a Board of Adjust- ment matter and the Commission cannot override it. Mayor Campbell left the Commission Chambers at this time and Vice-Mayor Horenburger took the chair. Upon question by Mrs. McCarty, Assistant City Attorney Kurtz stated he believes that the Commission can either approve or deny this site plan; however, they are going to have to approve or deny the plan in front of them tonight, which may not necessarily be the site plan which was in front of the P&Z Board. If there have been changes they must take into consideration those changes. Upon question by Vice-Mayor Horenburger, Mr. Kovacs advised, in his opinion, the changes are major modifications to the site plan. Vice-Mayor Horenburger stated she feels that a major modification should go back through the process. The Commission is being asked to review a site plan which has major modifications and this is inappropriate. Assistant City Attorney Kurtz stated that if this is the track the Commission chooses to take, he would suggest that they get some tes- timony on the record as to why it is a major modification. Mr. Kovacs stated that the changes involve changing the width of a landscape strip from 14' to 30' continuously along the parameters of the ultimate rights-of-way. This then affects the number of parking spaces and orientation of the bank building and traffic patterns. Secondly, it resolves whether or not land is to be dedicated or put into an easement. This is an item of major consideration because it was, as represented to the P&Z Board, an item which could not have been changed. The next items deal with access onto Linton as there is now a proposed access point into the easterly half of the property which will change the traffic flow patterns. Also as part of the discussion tonight, but not reflected on the site plan, are agreements to signalize the curb cut cross area and terminate that with an extended median upon the call of the County Engineer. These last items will affect the internal, and the methodologies or circulation patterns, for the external traffic. Mayor Campbell returned to the Commission Chambers at this time. Mr. Weatherspoon stated his concern is whether or not the P&Z Board reviewed the site plan as they would any other. Kathi Sumrall, member of the P&Z Board, stated that there was lengthy discussion regarding the entire site plan. She would agree with Mr. Kovacs that the modifications are major and the site plan should be sent back to the P&Z Board for their review first. Mr. Basehart stated that because of the changes and because they feel that the P&Z Board did not review the entire plan they would ask that this item be remanded back to the Board. If that is not what the Commission desires to do, they would be more than happy to make a full presentation and debate each of the five items. Mr. Dougherty stated that he would like to remind everyone that this hearing is a continuation from the last meeting; he would like to incorporate, into the record of this meeting, all the testimony which was given at the prior meeting. Tonight all he has heard is discussion in a very sterile atmosphere of the Code, it has no reference to the public's interest in the matter. He feels that when the Commission makes their judgment tonight, they have to be cognizant of the testimony given at the prior meeting. In the future, when they approve a site plan, they should specifically condition that approval upon that, and -9- 11/10/87 only that, which is shown on the site plan. They do this very thing in terms of the SAD and he feels this same type of application should apply in all other instances. Mayor Campbell stated that, as they may find themselves in a legal situation, he would urge that the Commission refer their comments to a legally justifiable position and not just public comments. Mrs. Horenburger moved to support the P&Z Board's recommenda- tion for denial for the site plan before them tonight on their agenda, seconded by Mr. Dougherty. Assistant City Attorney Kurtz advised that incorporated in the motion should be a finding that there have been such major modifications that the site plan about to be presented is a new site plan. Mrs. Horenburger reworded her motion to move that the site plan which the applicant is asking them to consider tonight is a major modification to the site plan which the P&Z Board reviewed. As such, she believes the Commission is not in a position to go ahead and ap- prove, or deny, that new site plan with the' major modifications. What is before them on the agenda tonight is the site plan which the P&Z Board made a recommendation on, and her motion recommends that they support that recommendation, seconded by Mr. Dougherty. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mrs. McCarty stated that before they vote on any site plan, there are five items which the applicant has not had the chance to address. She feels that they should give him the opportunity to address those five items. Mayor Campbell stated that if Mrs. McCarty has any questions on the five items, she can ask the applicant. Mrs. McCarty stated, with regard to Item 1 relative to the intensity of the use, that the P&Z Board felt that the intensity of the use was too great and would result in traffic and safety impacts which are detrimental. She questioned why the applicant feels it is not. Mayor Campbell and Mr. Dougherty left the Commission Chambers at this time. Mr. Basehart stated the site plan which was previously reviewed had 90,000 square feet of approved space; the site plan they are propos- ing has 101,400 square feet. There is a slight increase in the amount of square feet of use; however, it cannot be concluded that this is too intense a use. It does not exceed the floor area ratio or intensity limitations of the Zoning Code and they meet all of the setback, parking and landscaping requirements. With respect to the traffic, the new proposal generates an additional 317 trips per 24 hour period. At peak hour, it will generate an additional 20 trips per day. Upon question by Mrs. McCarty, Assistant City Attorney Kurtz advised that the Commission is not required to go through all five items if they have enough information on which to base their decision. Mayor Campbell and Mr. Dougherty returned to the Commission Chambers at this time. At this point the roll was called to the motion. Mayor Campbell declared a recess the time being 9:55 P.M. The meeting was reconvened at 10:01 P.M. 21. Ordinance No. 95-87 - Sergio Annexation. Ordinance No. 95-87, relative to annexing six feet, subject to R-1AA (Single Family Dwelling) District, in the Lake Ida Gardens Subdivision, located south of N.W. llth Street, west of N.W. 4th Avenue and east of N.W. 5th Avenue, is -10- 11/10/87 before the Commission for consideration on First Reading. If passed, Public Hearing will be held December 8th. The Acting City Manager presented Ordinance No. 95-87: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ANNEXING TO THE CITY OF DELRAY BEACH THE NORTH SIX (6) FEET OF LOT ONE (1), BLOCK 4, AMENDED PLAT OF LAKE IDA GARDENS, AS RECORDED IN PLAT BOOK 23, PAGE 192, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, WHICH LAND IS CONTIGUOUS TO EXISTING MUNICIPAL LIMITS OF SAID CITY. SAID LAND IS LOCATED SOUTH OF N.W. llTH STREET, WEST OF N.W. 4TH AVENUE AND EAST OF N.W. 5TH AVENUE; REDEFINING THE BOUNDARIES OF SAID CITY TO INCLUDE SAID LAND; PROVIDING FOR THE RIGHTS AND OBLIGATIONS OF SAID LAND; PROVIDING FOR THE ZONING THEREOF TO R-1AA (SINGLE FAMILY DWELLING) DISTRICT; PROVIDING AN EFFECTIVE DATE. The Assistant City Attorney read the caption of the ordinance. Mr. Weatherspoon moved for the adoption of Ordinance No. 95-87 on First Reading, seconded by Mr. Dougherty. Upon roll call the Commis- sion voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. Legal 26. Marcil vs City of Delray Beach. The Commission is to consider settlement offer regarding David Marcil vs City of Delray Beach. The Claims Review Committee recommends rejection. Mr. Weatherspoon moved to ratify the Claims Review Committee's recommendation to deny, seconded by Mrs. Horenburger. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. 27. Walker vs Thiele. The Commission is to consider a settlement offer regarding Walker vs Thiele. Assistant City Attorney Kurtz advised that this is along the lines of a non-opposition to accept. Florence Snyder, the attorney for Meg Walker, has provided them with a stipulation indicating that if they enter into it, a dismissal of the law suit will be forthcoming. The stipulation states that the parties hereby stipulate that public records as defined in Section 119.011, Florida Statutes, are subject to disclo- sure pursuant to the public records law, even where the intended recipi- ent of the record has yet to receive it. They agree with that proposi- tion; however, it is their feeling, and remains their position, that the substance of this law suit, that being the offering of the budget to Meg Walker, did not constitute a public record at the time she requested it. Therefore, they have no objection to this stipulation being entered into. Mrs. Horenburger moved to accept the settlement offer, seconded by Mr. Weatherspoon. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. PROCEDURAL ITEMS 29.1. Pete Bowen, 116 Marine Way, stated he is very disturbed about the way zoning matters have been handled. If there were some clear cut laws on how these things should be run, they would not be spending so much time talking about them. If ever a reason came up for having a use it or lose it ordinance, the case they just finished with is a prime example. As a member of PROD, he feels the City should initiate some kind of zoning for the property at the corner of Linton Boulevard and Military Trail which would eliminate the controversy going on between -11- 11/10/87 the developer and the property owners in the area. They could rezone the property back to its original RM-6 or to an SAD; either way would be satisfactory to the property owners in the area. He feels certain that the developer will present a new plan to the P&Z Board as soon as he is legally allowed to do so. Therefore, he would suggest that the Commis- sion make up their minds what they want to do long before that. 29.2. Stormet Norem stated he would like to propose that the Commis- sion consider the creation of a cemetery board. He is speaking on behalf of the four funeral homes in Delray Beach and they feel it is time for the City to form a board. The make-up of it should be repre- sentatives from each of the funeral homes, one member of the Chamber of Commerce and one member from the ministerial community. If the Commis- sion brings this up at one of their next meetings, this board could be formed to look over the items which are before the Parks and Recreation Department. They have a lot to deal with, let alone deal with cemetery management, etc. 29.3. John Tyson, 614 N.W. 2nd Street, representing the Sherman William Post 180, stated he would like to request permission to hold a carnival on the City's property east of the new Police Station. The Post is in bad shape and they would like to hold this as a means of raising funds. Mayor Campbell requested that the Acting City Manager look into this and place it on a workshop agenda. 30. Mr. Dougherty moved for approval of the minutes of the Regular Meeting of October 13, 1987, seconded by Mr. Weatherspoon. Upon roll call the Commission voted as follows: Mr. Dougherty - Yes; Mrs. Horenburger - Yes; Mrs. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. 31.a.1. Mrs. Horenburger stated she received a letter from Chris Moore, Traffic Engineer for County Traffic, in response to the City's request to operate certain traffic signals in a flashing mode. The letter states that the Palm Beach County Traffic Division has studied the intersections and will comply with the request. The traffic signals at N.E. 1st Street and N.E. 5th Avenue and S.E. 1st Street and S.E. 5th Avenue will continue to operate in normal stop and go fashion from 8:00 A.M. until 6:00 P.M., seven days a week. During the hours of 6:00 P.M. until 8:00 A.M. the signals will operate in the flashing mode. The signals at S.E. 1st Street and S.E. 6th Avenue will be flashed continu- ously 24 hours a day until further notice. The work should be done within the next four weeks. 31.a.2. Mrs. McCarty stated that last week she and Kathy Daley were in Tallahassee trying to get funding for the Old School Square. They requested $762,000 and were granted $455,000 from the Historic Preserva- tion Advisory Board. Hopefully, they will know at the end of the budgetary process in June. She also believes that Francis Bourque, Chairman of the Old School Square, has another grant application for $400,000 in the process which will be up for review in December. 31.a.3. Mrs. McCarty stated, with regard to Mr. Bowen's comments, that perhaps they could direct staff to look into a City-initiated SAD zoning for the property on Linton Boulevard and Military Trail. They could use the original, approved site plan for the SAD. Assistant City Attorney Kurtz advised they will look into this. 31.a.4. Mrs. McCarty stated that she feels the trash situation seems to be looking good and the system they adopted is working. 31.a.5. Mrs. McCarty stated that a few meetings ago the vendors from the Flea Market came before the Commission and asked for a meeting. She does not want to sit down with the vendors, she would like to sit down with the owner of the Flea Market. There is a problem on North Federal Highway and they need to get it resolved. She would like to ask him to come to a workshop meeting to discuss this. -12- 11/10/87 Following discussion, it was the consensus of the Commission to invite the owner of the Flea Market to attend a workshop meeting, at his convenience, to discuss the issue. 31.a.6. Mayor Campbell stated that perhaps they should look at modify- ing their law to have some limitations on how many tent applications you can have a year. He requested that staff look into this. 31.b. There were no Non-Agenda items by the City Attorney. 31.c. There were no Non-Agenda items by the ACting City Manager. Mayor Campbell declared the meeting adjourned at 10:30 P.M. City Clerk MAYOR The undersigned is the City Clerk of the City of DelraY Beach and that the information provided herein is the minutes of the meeting of said City Commission of November 10, 1987, which minutes were for- mally approved and adopted by the City Commission on NOTE TO READER: If the minutes that you have received are not completed as indicated above, then this means that these are not the official minutes of 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. -13- 11/10/87