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07-26-83 JULY 26, 1983 A regular meeting of the City Council of the City of Delray Beach, Florida, was called to order by Mayor Willard V. Young in the Council Chambers at City Hall at 7:00 P.M., Tuesday, July 26, 1983. 1. Roll call showed: Present - Council Member Malcolm T. Bird Council Member Doak S. Campbell Council Member Arthur Jackel Council Member Edward L. Perry Mayor Willard V. Young Absent - None Also present were - City Manager William H. Law, Jr. and City Attorney Herbert W.A. Thiele. 2. The opening prayer was delivered by Reverend Anthony Higgs, Calvary Bible Baptist Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. Mr. Jackel moved for approval of the minutes of the Regular Meeting of July 12, 1983 and Special Meetings of July 1, 1983, July 8, 1983, July 11, 1983 and July 14, 1983, seconded by Mr. Perry. Said motion passed unanimously. 5.a.1. Mr. James D. Cameron, on behalf of Country Manors residents, spoke in opposition of the widening of Lake Ida Road from two lanes to four lanes. While they agree that the area outside of Lake Ida Shopping Center needs some attention, they feel that it does not make sense to put a four lane road through a residential area. If the County Commis- sion would like to spend some money on Lake Ida Road, the residents in that area would be delighted if the road got a new covering of asphalt. Further, it doesn't seem reasonable to increase the traffic hazard by requiring the children, who will be using Barwick Park, to cross a four lane street. 5.a.2. Mr. William Hines, 321 N.W. 1st Avenue, discussed the recent sale of City land with a water well on it. He lives next to that parcel and was not notified. He polled his neighbors and found that none of the residents living around that parcel were notified. He believes that Council was misled and that they now have a serious problem which no one is addressing. Mr. Hines requested that City Council call a public hearing so that all the citizens, Council and the appointed officials can discuss this problem and see if the City's right of eminent domain can be exercised in the City's behalf. Mr. Jackel, for the record, stated that he never knew of the water well on that land. He further stated that it is the function of the City Manager to fully inform Council regarding the sale of any piece of City property and the materials provided to him did not show a well on that land. Mr. Hines stated he believes that the City officials who were responsible for advising Council on this matter are still working for the City and he feels there needs to be a thorough investigation of how this proposal got before Council. Mr. Perry stated that as the one Council Member who knew the well was there, he would be in favor of holding the special workshop meeting Mr. Hines has requested. He would ask that it be of an educa- tional nature so that they can learn something about their procedures for sale of public properties. Mr. Perry moved to hold a workshop meeting, as requested by Mr. Hines, seconded by Mr. Bird. Mr. Bird suggested, rather than calling a special workshop, that they schedule this as a regular item on a workshop agenda. The motion and second were withdrawn. It was the consensus of Council to direct the Administration to place this item on a workshop agenda at such time as all information is available. The City Attorney respectfully requested that this matter be delayed as long as possible so as not to interfere with some current negotiations. Upon question by Council, he advised that they have a lot of options which are being pursued currently, some of which are in a delicate stage. Mrs..Rosetta Rolle advised that she spoke with former City Manager Mariott some years ago and they took a tour of Delray Beach to look at City owned land relative to passive parks for children. They had requested that the subject property become a passive park for the children in her area and she was very surprised when she passed there and saw them building on it. She would like to see this land sale revoked and the City to keep this vacant land. 5.a.3. Mr. Sam Kurtz asked Council to grant permission for him to solicit funds within the City limits for the Haven for a canoe trip across the State. Upon question, Mr. Kurtz advised that they have filled out the forms to the best of their knowledge and he believes that they followed the necessary procedures. Mr. Bird moved, subject to compliance with the requirements of Chapter 22 of the Code of Ordinances, to authorize this fund-raising effort on behalf of the Haven, seconded by Mr. Perry. Said motion passed unanimously. 5.a.4. Mr. David Cohen asked Council to consider the questions raised by Mr. Hines. Mayor Young advised that there has been a consensus of Council to have the water well issue on a workshop agenda. The City Manager added that they will schedule it for two to three weeks from now. 5.a.5. Mr. Marshall Deitz, 3700 N.W. 7th Court, asked Council to request the Palm Beach County Commission to remove the widening of Lake Ida Road as the number one priority on the list of proposed projects in the 1983-1988 time period to be funded by the 2¢ County/Municipal gas tax. They believe this widening is unnecessary and is an inappropriate intrusion into their residential neighborhoods, which would destroy property and interfere with their peace and safety. They would support the widening of Congress Avenue from Boynton to Germantown Road or the widening of Military Trail from ClintMooreto Golf Road, both of which, they feel, are more in need of improvement than Lake Ida Road. Mayor Young stated that City Council understands this situ- ation and he requested there be no more repetitive discussion on it. He advised that if they remove this project from the list completely, they will not get the drainage that is needed on the corner of Congress Avenue and Lake Ida Road. He added that three million dollars would not do very much on Congress Avenue but would take care of Lake Ida Road. 5.a.6. Mr. Barry Stone, 933 Tropic Boulevard, discussed the Delray Beach Country Club. He noted that the family membership only includes husband and wife, not children; and that their family membership price is higher than that of West Palm Beach and Boca Raton. Further, they cannot walk except in the morning when they get to play the back nine holes; if they want to walk eighteen holes, they must come back at 2:30 P.M. He feels this is prejudiced against those people who like to walk. - 2 - 07/26/83 Mr. Campbell stated he recalls that about a month ago when they were having a discussion relative to the golf course, they decided to schedule a special workshop meeting on the Country Club. He asked for the status of that. Mayor Young advised that he has prepared a report on the many things that have to be taken into consideration at the Country Club and it will be coming up, probably at a regular work- shop meeting. 5.b.1. Mr. Perry advised that Friday he was made aware that they have not yet advertised for a full-time permanent City Manager. He has read some newspaper articles which make no sense to him; for example, one member of the Screening Committee said he felt it was the Screening Committee's prerogative to advertise. Mr. Perry added that he cannot recall giving the Committee that authority. Mr. Perry moved to direct the Interim City Manager to im- mediately advertise the job through the normal publications and that they delay any final selection for at least a month so there will be time for people to react to the ads. Motion died for lack of a second. Mayor Young advised that there has been a meeting scheduled for this coming Thursday at 4:00 P.M. on this very matter. The matter of advertising will be taken up at that time. 5.b.2. Mr. Jackel made a presentation relative to the proposed widening of Lake Ida Road, noting that the people in the northwest area feel that Lake Ida is a neighborhood road, not a commercial road, and should not be first on the priority list. He feels that everyone in this City deserves to have the quality of life they desire and he will support any group in this City who feels their way of life is being threatened. Regarding the funds, if they are not used for Lake Ida Road and used instead for another County road such as Seacrest Boulevard or Dixie Highway, he would have no problem with that; it would be money well spent. Mr. Jackel requested Council support Resolution No. 71-83 with one amendment, noting that the purpose of this resolution is to change priorities. Mr. Jackel moved for the passage of Resolution No. 71-83 with the following amendment: he would change "Congress Avenue from the northern boundary to Linton Boulevard" to "Congress Avenue from the northern boundary to West Atlantic Avenue". Motion died for lack of a second. Mr. Jackel advised the public that they have the right to go to the Palm Beach County Commissioners with their objections. Mayor Young noted that their residents have always had the right to go to the Commission. He also added that it was never his intention to deter any member of the public from having their say; he simply asked that, be- cause of the time frame, there be no repetitive discussion. Mr. Campbell disagreed with Mr. Jackel's comments regarding the use of the funds. He believes they have never had their fair share of the tax dollars returned to them in the South County and he will do everything he can to make sure that the 2.6 million dollars is spent within the confines of the City of Delray Beach. He feels that one of his primary functions in being a City Councilman is to save every tax dollar he can for the people of Delray Beach. Mayor Young noted that he will be attending a MPO meeting on August 7th and one of the points he was planning to bring up is that the money be spent within Delray Beach and for the best possible use. He had no intention of going along with Lake Ida Road; however, he is concerned with the drainage at the corner of Lake Ida Road and Congress Avenue; that must be taken care of whether or not the road is widened. Upon comment by Mr. Jackel, Mr. Campbell stated that he opposed the resolution because he firmly believes that if they adopt it, they will lose all of the money. Mr. Bird stated that he would support getting the repaving, intersection and drainage improvement work done on Lake Ida Road; however, he does not feel the resolution is the correct approach. He feels they need to keep that money and negotiate for a reduced amount of work. - 3 - 07/26/83 5.b.3. Mr. Campbell moved that Mr. David Cohen be appointed as an alternate member of the Civil Service Board, seconded by Mr. Bird. Said motion passed unanimously. 5.b.4. Mr. Campbell stated that the Code Enforcement Board is, in a sense, a quasi-judicial body. In a court of law, when it is determined that someone has violated a law, it is normal procedure that the court assess a cost for the proceedings against the violating party. He feels that too often they exercise the functions of the Code Enforcement Board, the City Attorney's Office and the Code Enforcment Officers in trying to get people to comply with the ordinances without assessing any type of administrative fee. Mr. Campbell suggested that Council direct the City Manager to look into what an appropriate administrative cost might be for the Code Enforcement Board to assess, once they have deter- mined that there has been a violation of an ordinance. He believes that such a fee would encourage people to strictly comply with the Code and would help the City in the operation of the Code Enforcement Board to recoup some of its costs and possibly help fund additional help needed in that department. Mr. Campbell moved to direct the City Manager to look into the matter and to come back to Council with a proposed fair charge per offense as an administrative charge, seconded by Mr. Bird. Said motion passed unanimously. Before roll call, upon question by Mr. Perry, the City Attorney advised that the fine and the court cost are completely dif- ferent things. At this point the roll was called to the motion. 5.c.1. There were no Non-Agenda items by the City Attorney. 5.d.1. The City Manager reported they have received a request for a temporary canopy from Bill Wallace Ford for July 28th through August 1st. Approval is recommended. Mr. Bird moved for approval subject to satisfaction of the ordinances, seconded by Mr. Perry. Said motion passed unanimously. 5.d.2. The City Manager reported that the Department of Community Affairs has offered a grant for landscaping purposes in the amount of $14,413. This matter was taken, through the Park & Recreation Depart- ment and the City Horticulturist, to the Beautification Committee who came up with a recommended list of priorities. It is recommended that Council approve acceptance of the grant. Mr. Perry moved for acceptance of the grant, seconded by Mr. Bird. Mr. Bird asked if the list could be amended if, after study- ing it, they find more deserving areas. The City Manager advised that it is his understanding that they would not be firmly committed to this particular priority list but they are committed to expend all of the funds for this purpose. Mr. Perry amended his motion to accept the grant subject to the City Attorney's approval of the contract, seconded by Mr. Bird. Said motion passed unanimously. 6. Mr. Jackel moved for approval of the agenda, seconded by Mr. Perry. Said motion passed unanimously. PUBLIC HEARING 7. Ordinance No. 50-83 - Establishing Special Activities Dis- trict - Professional Office Plaza for Acquilano. Ordinance No. 50-83, amending Ordinance No. 15-81 relative to expanding the permitted uses for an approved SAD (Special Activities District) for property located on the west side of U.S. No. 1 between Linton Boulevard and S.E. 10th Street, is before Council for consideration on Second and FINAL Reading. Prior to consideration of Rassage of this ordinance on Second and FINAL Reading, a public hearing nas De~n scheduled to be held at this time. - - 07/26/83 The City Manager presented Ordinance No. 50-83: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING SECTION l(a) OF ORDINANCE NO. 15-81, WHICH AMENDED ORDINANCE NO. 6-81 RELATIVE TO ESTABLISHING SAD (SPECIAL ACTIVITIES DISTRICT) FOR PROP- ERTY LOCATED ON THE WEST SIDE OF U.S. #1, BETWEEN LINTON BOULEVARD AND S.E. 10TH STREET IN SECTION 21, TOWNSHIP 46 SOUTH, RANGE 43 EAST, TO PROVIDE FOR ADDITIONAL CONDI- TIONAL USES IN SUCH SAD; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 50-83 is on file in the official Ordinance Book) 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. The public hearing was closed. Mr. Bird moved for the adoption of Ordinance No. 50-83 on Second and FINAL Reading, seconded by Mr. Perry. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. 8. Ordinance No. 51-83 - Zoning Ordinance Amendment - Modifica- tion of Approved Site and Development Plan. Ordinance No. 51-83, amend- ing Chapter 30 "Zoning" of the Code of Ordinances that any decision of the Planning and Zoning Board shall be appealable to the City Council, is before Council for consideration on Second and FINAL Reading. Prior to consideration of passage of this ordinance on Second and FINAL Read- ing, a public hearing has been scheduled to be held at this time. The City Manager presented Ordinance No. 51-83: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 30, "ZONING ORDINANCE", SECTION 30-22, "SITE AND DEVELOPMENT PLAN", SUBSECTION (F), "MODIFICATION OF AN APPROVED SITE AND DEVELOPMENT PLAN" OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA; BY CLARIFYING THAT ANY DECISION OF THE PLANNING AND ZONING BOARD SHALL BE APPEALABLE TO THE CITY COUNCIL BY THE APPLICANT AFFECTED; BY DELETING THAT THE DECISION OF THE PLANNING AND ZONING BOARD AS TO WHETHER A MODIFICATION IS MINOR OR MAJOR IS FINAL; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 51-83 is on file in the official Ordinance Book) 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. Mr. Frank Bernardo, attorney, opposed Ordinance No. 51-83 and requested, if Ordinance No. 51-83 is passed at this time, that he be given permission to speak under Item 17 of the agenda. Upon the request of Mrs. Kathi Sumrall, the City Attorney read the following clause of the ordinance "the applicant affected by a decision of the Planning and Zoning Board regarding minor modifications to site plans may appeal said decision to the City Council, provided that said appeal is in writing and submitted to and received by the City Manager or his designee within ten days of the final decision of the Planning and Zoning Board." Upon further question, the City Attorney advised that they are processing the same wording for conditional uses. The public hearing was closed. - 5 - 07/26/83 Mr. Bird moved for the adoption of Ordinance No. 51-83 on Second and FINAL Reading, seconded by Mr. Jackel. Upon roll call Coun- cil voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. CONSENT AGENDA Mr. Bird expressed concern regarding Item 9 and asked that it be removed from the Consent Agenda and be the first item of business on the regular agenda following Item 17. The City Attorney requested that Items 10, 11 and 12 be approved subject to the City Attorney's approval of the contract docu- ments which have not yet been received. The following items are to be considered by Council as the Consent Agenda: 10. Lease of Rental Cars. Council is to consider authorizing execution of lease for rental cars for the Police Department. Approval is recommended. 11. Hose for the Fire Department. Council is to consider award of contracts for hose to the following low bidders: Harold Sales & Service 1000' of 1%' $1,350 Harold Sales & Service 2000' of 2%' 3,960 Safety Equipment Co. 100' sections of 5" 4,940 Funds are to come from the 1982-83 budget. Approval is recommended. Off-Site Telephone Lines. Council is to consider award of a contract to Executone for $14,972 to install buried telephone cable to City buildings. Approval is recommended. 13. Change Order - City Hall Expansion and Alterations. Council is to consider change orders increasing the contract price by Cox & Palmer Construction Corporation in the amount of $6,809.77 for the following: Roof repairs, Council Chamber $1,397.00 Floor and wall tile, Single bathroom downstairs 707.00 Storm sewer for roof drains 4,705.77 Approval is recommended. 14. Rezonin~ Request - West of N.W. 4th Avenue, between N.W. ll'th Street and N.W. 9th Street (William H. and Sandra W. Hamilton, applicants). Resolution No. 72-83, requesting permission from the Palm Beach County Board of Commissioners to rezone land annexed from RS (Single Family Residential) (County) to R-1AA (Single Family Dwelling) (City), is before Council for consideration. The caption of Resolution No. 72-83 is as follows: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REQUESTING PERMISSION FROM THE BOARD OF COUNTY COMMISSIONERS, PURSUANT TO FLORIDA STATUTES 171.062, TO REZONE LAND ANNEXED TO THE CITY OF DELRAY BEACH FROM THE COUNTY ZONING CLASSIFICATION RS (SINGLE FAMILY RESIDENTIAL) TO THE CITY'S ZONING CLASSIFCATION R-1AA (SINGLE FAMILY DWELLING) DISTRICT. (Copy of Resolution No. 72-83 is on file in the official Resolution Book) 15. Rezonin~ Request -West of Germantown Road, between Royal Palm Drive And S.W. 10th Street (Charles and Elizabeth C. Castilyn, applicants). Resolution No. 73-83, requesting permission from the Palm Beach County Board of Commissioners to rezone land annexed' from RH (Residential High Density) (County) to R-lA (Single Family Dwelling) (City), is before Council for consideration. - 6 - 07/26/83 The caption of Resolution No. 73-83 is as follows: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REQUESTING PERMISSION FROM THE BOARD OF COUNTY COMMISSIONERS, PURSUANT TO FLORIDA STATUTES 171.062, TO REZONE LAND ANNEXED TO THE CITY OF DELRAY BEACH FROM THE COUNTY ZONING CLASSIFICATION RH (RESI- DENTIAL HIGH DENSITY) TO THE CITY'S ZONING CLASSIFICATION R-lA (SINGLE FAMILY DWELLING) DISTRICT. (Copy of Resolution No. 73-83 is on file in the official Resolution Book) 16. Heart Trail Installation. Council is to consider acceptance of Sunrise Kiwanis Heart Trail sponsorship at Anchor Park. Mr. Perry moved for approval of the Consent Agenda with the exception of Item 9 and with Items 10, 11 and 12 being subject to the City Attorney's approval of the contract documents, seconded by Mr. Bird. Said motion passed unanimously. REGULAR AGENDA 17. Satellite Dish. Council is to consider the appeal of Denn- tronics Cable, Inc.,/Pines of Delray (East) relative to denial of orig- inally requested site plan modification at Pines of Delray (East) for satellite dish. The City Attorney advised that his office has taken the position that the ordinance Council just adopted (Ord. No. 51-83) rela- tive to the ten day appeal period is inapplicable to this particular appeal since the appeal was essentially begun prior to the adoption of the ordinance. Mr. Dennis Chambers, President of Denntronics Cable, Inc., stated that Council has two questions before them (1) whether the Pines of Delray is entitled to have a satellite dish erected on their prop- erty; and (2) who decides the location of that satellite dish. Denn- tronics, in conjunction with the Board of Directors of the Pines of Delray, selected a site which they felt was the very best site available to the residents . They picked a site that was adjacent to the existing TV tower, TV antennaes and TV building. If the dish was turned off and had to be removed, they would have about 1300 very unhappy people. The opposition represents less than 1% of the people that live in the Pines of Delray. He urges Council to allow the dish to stand and to set a clear guideline to the City planners for the future so that contractors, like himself, know how to go through the proper procedures. He feels that with cooperation with the people that live around the dish, the dish could be landscaped to an acceptable standard. Mr. Sam Schwimer, representing Pines of Delray Board of Directors, stated he is amazed that the placement of a TV dish on pri- vate property has become this controversial. The existing site was selected by the Board of Directors as the most suitable spot with a minimum of exposure to the rest of the community. The Planning Director recommended approval of this site and the Assistant City Attorney indi- cated that legal requirements had been met. He noted that a member of the Planning and Zoning Board, Mrs. Kathi Sumrall, decided that a site 200 feet north of the existing site "the size of a football field" would be more adequate. The site selected by Mrs. Sumrall is exposed to all the residents of Juniper Drive, Orange Terrace, Malayan Drive and Home- wood Boulevard. The present site of the dish is partially exposed only to the people in the four buildings around it. No matter where the dish is placed in their development, some of their residents will object. He asked Council to approve application of the permit sought on the present site. Mr. Schwimer passed out photographs taken of the present site and proposed site. - 7 - 07/26/83 Mr. Mike McDaniel, Planning Director, stated that on May 24th the Planning and Zoning Board disapproved the present location of the dish because they felt it was an inappropriate location for the satellite antenna and that there was inadequate landscaping and screen- ing shown on the site plan. Denntronics appeared at a Planning and Zoning Board meeting held June 30th with an alternate location. The Planning and Zoning Board approved the alternate location; however, they required that the Board of Directors supply them with a resolution stating that they are in favor of it and that they do so within 14 days. Before the 14 days had expired, a letter was written to Council request- ing that Denntronics be allowed to appeal the Planning and Zoning Board's earlier decision of May 24th. That is where they stand now. Mrs. Kathi Sumrall, regarding Mr. Schwimer's comments, clarified that she had stated that the satellite dish in the Pines of Delray North was in a more suitable location. Mrs. Sumrall gave a detailed presentation on the background of this matter and advised that in arriving at their decision to deny the current site, the Planning and Zoning Board used as criteria Section 30-22(d), Standards for Evaluating Site and Development Plan Applications. Mrs. Sumrall added that the Board felt the screening was totally inadequate and that the apartments surrounding the dish have depreciated in value. Further, Denntronics cut down four trees without the approval of the City Horticulturist. The Board requests that Council deny this appeal. Mr. Bernardo asked if this appeal is before Council as a result of their passage of the amendment which was Item 8 on the agenda. The City Attorney advised that it is the ordinance as interpreted by City Council; it is Council's position that they have the authority to review this site plan modification. Upon further question, the City Attorney advised that, to his knowledge, Denntronics is an applicant before Council. Mr. Bernardo stated that the applicant has failed to do three things: (1) he has not filed for a building permit; (2) at the time he performed the services at Pines of Delray, he did not have an occupational permit; and, (3) the structure was erected by Denntronics in violation of the Condominium documents. He has made Mr. Thiele and Mr. Tennyson aware in letters to them that they intend to bring this before a legal body for a determination. A complaint was filed with the Florida Department of Business Regulation, Division of Land Sales. That complaint has been entertained. A letter was received today by the Condominium Association and Mr. Tennyson directing them to respond to that complaint. A quasi-judicial determination will be made by this State agency as to whether or not this structure was constructed without having complied With the Condominium documents. It is their position that they have not complied. They intend to pursue this matter on behalf of the homeowners and they request that Council do two things; either delay this until the Department of Business Regulation has made a decision or refuse the appeal and let the applicant come back later if the issue is decided in his favor. The City Attorney advised that the Code clearly states that minor modifications are to be reviewed pursuant to the standards for evaluating original site and development plans. Subsection 30-22(d), which Mrs. Sumrall referred to, should be the sole considerations that Council uses in evaluating this application. It is the position of the City Attorney's office that the issues of whether or not an applicant has obtained an occupational license and whether or not an applicant has obtained a building permit or a tree removal permit are irrelevant to that consideration; that is not to say they are not proper subjects for City action at some future date. The City Attorney advised further that the Condominium docu- ment review, mentioned by Mr. Bernardo, is taken care of by the City re- quiring the applicant to put forth information showing that they have the authority to be the applicant for the site and development plan approval or modification. They do not want to begin evaluations of Condominium documents; in their opinion, that is a purely private matter between the homeowners and members of the Association and Board of Directors, and, again, irrelevant to Council's consideration of site and - 8 - 07/26/83 development plan approval. Finally, the issue of the Division of Land Sales complaint, again, is an issue which is irrelevant to Council's considerations on site and development plan approval. They, the City, are not a party to that action and no decision by that body would be binding upon them. Council is here purely to evaluate an application for a minor modification to a site plan. Mr. Bernardo stated that, according to case law, when appli- cants for City relief come into their City Hall with unclean hands, i.e. buildings that violate code, no permits, etc., relief will be denied to them until they have complied. Secondly, if Council grants this appeal, by doing so, they will have decided that the documents have been com- plied with and will be inviting a lawsuit for the City. He added that the City Attorney's argument dictates that Council take no action until the Division of Land Sales has made a decision. The City Attorney stated that in no way is Mr. Bernardo's decision to be a decision as to the merits of the authority of the Board of Directors. The Board of Directors has given forth cognizable author- ity from documentation submitted. Whether they do or do not have the background information is a private matter and if Mr. Bernardo wishes to litigate, he will have to get on the list of the other 35 plaintiffs. As to the other issue on the Division of Land Sales, it is not a matter before Council under this evaluation. This is not a court of equity and the doctrine of clean hands is not necessarily applicable; that is only for looking for relief from, not applications for consideration under ordinances. Mr. Campbell concurred with the City Attorney's statements and stated that, in his opinion, the City has taken the appropriate steps to determine whether or not the owner in this instance has made proper application. The owner in this instance, as designated by State Statute, is represented by the Board of Directors of the Condominium Association. Mr. Campbell further stated he presumes that the applica- tion before the Division of Land Sales is to determine whether the Board of Directors acted properly as spokesman for all of the unit owners. Mr. Campbell made the following proposal: that Council delay the matter for two weeks, and during that time there be submitted to the City Attorney proof that there actually is pending, before a judicial body or before the Division of Land Sales, a dispute that is under consideration. In the meantime, if it is legitimately under considera- tion, he requests that there be no action taken by the City to change the site at this time, until a Court or the Division has made its final determination. Also, that they have their Building Department go out, if they have not already done so, and look at the dish to determine if it is in compliance with the Codes. Finally, that the City Manager investigate the issue of whether or not there has been any code viola- tion in the removal of trees and make a recommendation as to whether any penalties are in store for Denntronics for violating that code. The City Manager stated that he would prefer not to inspect the structure at this point in time as starting an inspectional process for a non-approved structure might put them in an awkward spot. Upon question by Mr. Campbell, the City Manager advised that the City could inspect it in a relatively short time once the issue has been decided. Mr. Campbell moved that this item be delayed for two weeks; if, in the event, there is no absolute proof that there is a pending matter before the Division of Land Sales or a Court of competent juris- diction, he will be ready, at that time, to make a decision, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - No; Mayor Young - Yes. Said motion passed with a 4 to 1 vote. Before roll call the following discussion was had: Mr. Perry stated that he feels the issue before Council is to simply con- sider an appeal based on the placing of this particular dish and that the other items have nothing to do with the case at hand. He is un- willing to support the motion. Mr. Jackel concurred with Mr. Perry's comments and added that he feels they are considering many things which they should not consider; however, he will support the motion if Mr. Campbell feels he needs two more w~eks. - - 07/26/83 Mr. Campbell added that in the event this body does take action to approve the dish, his consideration at that time will be very strongly determined by what additional landscaping requirements have been agreed to by Denntronics and the Board of Directors in protecting the existing property owners. At this point the roll was called to the motion. Mayor Young declared a recess, the time being 9:05 P.M. The meeting reconvened at 9:10 P.M. 9. Conditional Use Approval - Ascot Veterinary Clinic. Council is to consider a request for conditional use approval for Ascot Veteri- nary Clinic in an existing structure, located west of S.E. 2nd Avenue between East Atlantic Avenue and S.E. 1st Street. This was approved by a unanimous vote of the Planning and Zoning Board subject to the fol- lowing conditions: (1) The adoption of the zoning ordinance amendments indi- cated by the July 19, 1983 memorandum from the Plan- ning Division; and (2) That the only conditional use approved hereunder is as follows: Veterinary clinic, no on-site disposal of carcasses, and providing overnight accommodation of patients is for medical treatment only. Mr. Bird stated that his concern is whether there is ade- quate buffering provided so as not to abuse the residents who are going to live behind this clinic. Mrs. Sumrall advised that they amended the ordinance so that the animals could only stay overnight if they are recovering from surgery. Mr. Bird pointed out that the animals staying overnight will be undertaking medical treatment which requires a veteri- narian's supervision; this is different than recovering from surgery. Mrs. Marie Horenburger, 510 N. Swinton Avenue, asked if this complaint came from the abutting property owner. Further, she stated that the abutting property owners were sent notices but did not appear at either of their meetings on this. Mr. Bird stated that no one has brought a complaint to him. He is evaluating the request before him and his question remains; is there something in the ordinance which will protect the single family homeowner who is an abutting property owner to a veterinary clinic. Mrs. Sumrall stated that they tried their best to do what Mr. Bird is asking by making sure that the only animals that stayed overnight were those there for medical treatment. They were assuming that those animals undergoing medical treatment would not be highly active and would probably be sedated. This is what Dr. Thorpe told them. Mr. Tore Wallin added that the whole operation will be indoors. Mr. Perry stated that he was here the last time this item was discussed and it is his understanding that the doctor has every intention of having a fully enclosed facility. He does not have any problems with it. Mr. Jackel stated that he feels that Council should consider the fact that nobody has complained. Mr. Campbell moved for approval of the conditional use subject to the memorandum dated July 19, 1983 from the Planning Direc- tor, items 1 and 2, with the addition that any overnight accommodation be strictly indoors, and subject to Final adoption of Ordinance No. 52-83, seconded by Mr. Perry. Said motion passed unanimously. 18. Animal Control Officers. Council is to consider authorizing preparation of Interlocal Agreement between the City and the Sheriff's Department to deputize the Animal Control Officers. The City Attorney advised that they have conducted addition- al research and found that such a special deputy can enforce municipal ordinances as well as County ordinances. - 10 - 07/26/83 Mr. Perry moved to authorize preparation of the Interlocal Agreement, seconded by Mr. Jackel. Said motion passed unanimously. 19. Modification of Lease of Transfer Station. Council is to consider modification of lease of Transfer Station to Solid Waste Au- thority. The City Attorney reported that this modification adds to the agreement the ability of the Solid Waste Authority to have an addi- tional twenty year option on the lease and it also adds provisions relative to them agreeing to take over the City's bonded indebtedness. In addition, they have proposed a new Section 3 which would provide that the City has the right to require the Solid Waste Authority to move the location of the transfer station to another site within the City, the site to be agreeable to both parties, and provided the cost of the site, the relocation and any setup cost will be borne by the City. Mr. Perry moved to authorize modification of the lease agreement, seconded by Mr. Jackel. Said motion passed unanimously. 20. "Buy-Back" of Time in the Police and Firefi~hters' Pension. Council is to consider clarification of the recently adopted Ordinance permitting "buy-back" of time in the Police and Firefighters' Pension Plan. The City Attorney advised that the Board of Trustees has requested that Council (1) clarify the question as to interest and to have that clarification go in favor of excusing the interest from the date they were reemployed through today; and (2) extend the current date of August 24th to be the end of the fiscal year, September 30th. Mr. Bird stated that if an individual withdraws from the pension fund and converts monies to his own use for some period of time, then he has indeed benefited. If they were to impute a normal modest rate of interest, for example, passbook rate of 5%, that would be fair because that is what having that money out of the pension fund was worth to the individual. He feels it is fair to ask at least the nominal interest return; if they do not do that, it would seem that they are penalizing everyone else who is in the uniform pension fund. He would agree with their request that the opportunity to buy back in should extend through the end of this current fiscal year. Mr. Bird moved that Council extend the period of buy back opportunity and that their cost to buy back in should be the amount withdrawn with interest applied from the date of withdrawal until the date paid back in at 5% compounded annually, seconded by Mr. Campbell. Said motion passed unanimously. The City Manager advised that there is another request regarding clarifying the interest issue as it may apply to current employees or those who might come back in the future. It was Council's consensus that their intention is that it would be interest on the money from date of withdrawal until date of return, from now on, based on the actual rate of return of the plan. 21. Dune and Beach Evaluation Project. Council is to consider authorizing execution of an agreement between the City and the Depart- ment of Natural Resources for allocation and disbursement of fixed capital outlay funds in support of the beach erosion control program. The total cost will be $51,700, with 75% or $38,775 to come from the Department of Natural Resources. Mr. Bird moved to authorize execution of agreement subject to approval by the City Attorney's office, seconded by Mr. Perry. Said motion passed unanimously. 22. Water Service Outside City - 4860 West Atlantic. Council is to consider a request for water service outside the City for Scotty's, a proposed Home Improvement Center. The subject property is located on the south side of West Atlantic Avenue, just east of Military Trail and is not now contiguous to the City's corporate boundary. - 11 - 07/26/83 Upon question by Council, Mr. Robert Pontek, Utilities Director, advised that this is for a one-inch tap and that this parti- cular project has a very low demand. Since they are not contiguous, they would be charged a 25% surcharge for all water service and con- nection fees. At such time as they become contiguous, they will be allowed to have the standard flat City rates. Mr. Bird moved for approval of water service subject to approval of the easement document, seconded by Mr. Perry. Said motion passed unanimously. 23. Ordinance No. 52-83 - Zonin~ Ordinance Amendment - Veteri- nary Clinics. Ordinance No. 52-83, amending Chapter 30 "Zoning" of the Code of Ordinances relative to Veterinary Clinics, is before Council for consideration on First Reading. If passed, Public Hearing will be held on August 9th. The City Manager presented Ordinance No. 52-83: 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 30-11 "GC (GENERAL COMMERCIAL) DISTRICT" (C) "CONDITIONAL USES" (21) AND SECTION 30-13 "CBD (CEN- TRAL BUSINESS DISTRICT)" (C) "CONDITIONAL USES" (18) TO ADD THE CONDITION OF "PROVIDING OVERNIGHT ACCOMMODATION OF PATIENTS IS FOR MEDICAL TREATMENT ONLY AND EXCLUDING BOARDING FACILITIES"; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. The City Attorney read the caption of the ordinance. Mr. Perry moved for the adoption of Ordinance No. 52-83 on First Reading, seconded by Mr. Jackel. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mr. Bird questioned the intent of this ordinance and stated that he has the same concern as he had for the veterinary clinic. Upon question by Mr. Perry, the City Attorney advised that they do not have boarding kennels as a primary use. Further, that veterinary clinics have always been conditional uses; to his knowledge, they are not permitted uses in any district. Mr. McDaniel advised that the Planning and Zoning Board was concerned because the ordinance now reads "out-patients only"; that it might preclude keeping a sick animal overnight. They wanted to clarify that by striking the phrase "out-patients only" and adding "providing overnight accommodation of patients is for medical treatment only". At this point the roll was called to the motion. 24. Ordinance No. 53-83 - Zonin~ Ordinance Amendment - Nei~hbor- hood Commercial District. Ordinance No. 52-83, amending Chapter 30 "Zoning" of the Code of Ordinances realtive to expanding permitted and conditional uses in the Neighborhood Commercial District, is before Council for consideration on First Reading. If passed, Public Hearing will be held August 9th. The City Manager presented Ordinance No. 53-83: 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 30-9 "NC (NEIGHBORHOOD COMMERCIAL) DIS- TRICT'' (B) "PERMITTED USES" TO ADD ADDITIONAL PERMITTED USES AND SECTION 30-9 "NC (NEIGHBORHOOD COMMERCIAL) DIS- TRICT'' (C) "CONDITIONAL USES" TO ADD ADDITIONAL CONDI- TIONAL USES; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. - 12 - 07/26/83 The City Attorney read the caption of the ordinance. Mr. Perry moved for the adoption of Ordinance No. 53-83 on First Reading, seconded by Mr. Bird. Mr. Bird noted that Section 2 appears to be inconsistent with what they just adopted. The City Attorney advised that the other ordinance only applied to the GC and the CBD Districts; this one applies to the NC District. Mr. Bird stated that he would be more comfortable if they were all the same. The City Attorney advised that this subsec- tion can be amended to make the language the same as that in Ordinance No. 52-83. Mr. Bird stated he would also add the NC District to Ordi- nance No 52-83. The City Attorney clarified that Section 2 of Ordinance No. 53-83 under the use of veterinary clinics would read "veterinary clin- ics, no on-site disposal of carcasses, and providing overnight accom- modation of patients is for medical treatement only, and excluding boarding facilities". Mr. Perry amended his motion to include the language given by the City Attorney, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. Before roll call, Mr. Bird suggested they go back and amend Ordinance No. 52-83 before Second Reading and include NC as one of the zoning categories to which those rules would apply. At this point the roll was called to the motion. Mr. Bird moved to reconsider Ordinance No. 52-83, seconded by Mr. Perry. Said motion passed unanimously. Mr. Bird moved to amend Ordinance No. 52-83 between First and Second Reading to include NC (Neighborhood Commercial) District as one of the zoning categories which Ordinance No. 52-83 would apply to for the purpose of controlling veterinary clinics, seconded by Mr. Perry. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. Before roll call, the City Attorney clarified that they are adopting Ordinance No. 52-83 on First Reading with that amendment. Council concurred. At this point the roll was called to the motion. Mr. Campbell stated that with regard to Section 2 of Ordi- nance No. 53-83, he is concerned about allowing any gasoline stations in a NC District and requested an opportunity to discuss it with members of the Planning and Zoning Board at a later date. Upon question by Mr. Bird, Mr. Wallin, Planning and Zoning Board, advised that he objected to the 20 acres and to the gas stations. Mr. Paul Flowers, representative for Newton TV store, stated that the only thing they want to do is build a little warehouse to house their trucks. As the area is all commercial anyway, he cannot see how this would hurt. Mr. Bird advised that it would seem, if they pass the ordi- nance on Second Reading, Newton's would become a permitted use instead of a non-conforming use and you can expand permitted uses. Mr. Perry stated that he has no problem with regard to a gasoline station in that area. Mr. Wallin stated he cannot understand why it has to be a neighborhood district; why can't they call it com- mercial, which is what it is. - 13 - 07/26/83 25. Ordinance No. 54-83 - Amending Code - Commercial Activity in the Beach Area. Ordinance No. 54-83, amending Chapter 17 "Parks, Beaches and Recreation" of the Code of Ordinances relative to commercial activity in the beach area, is before Council for consideration on First Reading. If passed, Public Hearing will be held August 9th. The City Manager presented Ordinance No. 54-83: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, AMENDING CHAPTER 17, "PARKS, BEACHES AND RECREA- TION''; ARTICLE II, "MUNICIPAL BEACH", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING SECTION 17-22, "SALES", AND ENACTING A NEW SECTION 17-22, "SALES AND RENTAL OF GOODS OR SERVICES", BY PROSCRIBING SALES AND RENTAL OF PROPERTY OR SERVICES ON THE MUNICIPAL BEACH AND STATE ROAD A1A, BY PROVIDING FOR THE FRANCHISING OF ACTIVITIES BY THE CITY COUNCIL, BY PROVIDING CRITERIA FOR THE GRANTING OF MUNICIPAL BEACH FRANCHISES, BY NOT ALLOWING ANY FRANCHISING ON STATE ROAD A1A; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DA TE. The City Attorney read the caption of the ordinance. Mr. Perry moved for the adoption of Ordinance No. 54-83 on First Reading, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mr. Campbell - Yes; Mr. Jackel - Yes; Mr. Perry - Yes; Mayor Young - Yes. Said motion passed with a 5 to 0 vote. 26. Trihalomethane Control Program. Council is to consider 'authorizing Environmental Science and Engineering, Inc., to complete the THM testing of the City's water supply, at a cost not to exceed $20,000, with funds to come from the 1982-83 budget. Mr. Pontek advised that this is a request to authorize Environmental Science and Engineering, Inc., to complete the second phase of their study. They have now completed the first phase which does indicate that their trihalomethane concentrations are above the limitations required by the Federal Clean Water Act and that addition- ally they need to enter into the second phase of the study to analyze various methods of control and to have a report generated which will lead them to their ultimate control. This particular program is re- quired under the Clean Water Act. Mr. Bird moved to authorize the testing, seconded by Mr. Jackel. Said motion passed unanimously. Upon question by Mr. Campbell, Mr. Pontek advised that they are talking about 400-500 man hours at about $25.00 an hour for the first phase. He added that the original program involved very elaborate testing and ESE is pretty much the national leader in this particular type of program. 27. Lift Station ~17 Rehabilitation. Council is to consider authorizing Russell & Axon to design a submersible pumping station to replace existing Lift Station 917 (located at the Delray Beach Yacht Club) at an estimated cost of $39,400, which includes design, permits and additional engineering costs. Funds are to come from the 1982-83 budget. Mr. Pontek advised that this is one of their critical lift stations that is in dire need of rehabilitation. The two pumps in this station are no longer manufactured and replacement parts are virtually impossible to obtain. They have requested Russell & Axon to propose options including relocating the entire station, redesigning what they already have and, the most cost-effective option, to redesign the exist- ing station and convert it from a wet well/dry well station into a submersible pump station. The estimated construction cost for this job is $180,000; the engineering fees are $39,400. - 14 - 07/26/83 Mr. Perry moved to authorize the design for Lift Station 917, seconded by Mr. Bird. Said motion passed unanimously. Before roll call, Mr. Campbell expressed concern with regard to whether this is a reasonable cost and asked that the City Attorney give him a call to briefly explain the continuing contract. Upon ques- tion by Mr. Jackel, Mr. Pontek explained that the funding is available in the 1982-83 budget. At this point the roll was called to the motion. Mayor Young declared the meeting adjourned at 10:10 P.M. ATTEST: y 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 Council of July 26, 1983, which minutes were for- mally approved and adopted by the City Council 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 Council. 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. - 15 - 07/26/83