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01-19-82SpMtg JANUARY 19, 1982 A Special Meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 7:05 P.M., Tues- day, January 19, 1982, with Mayor Leon M. Weekes presiding, City Mana- ger Robert H. Fisk, City Attorney Herbert W. A. Thiele and Council Members James H. Scheifley, Charlotte G. Durante, Leo A. Blair and Malcolm T. Bird present. Mayor Weekes called the meeting to order and announced that same had been called for the purpose of (1) Considering Passage of Resolution No. 2-82, Vacating and Abandoning Streets in the Hamlet; (2) Considering Passage of Resolution No. 4-82, relative to Beach Erosion Funding; (3) Considering First Reading of Ordinance No. 4-82 relative to Increasing Fees for Garbage and Trash Collection and (4) Considering Discussion of Old Harbor (Service Station) Matter. 1. The City Attorney presented Resolution No. 2-82: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING ALL PUBLIC ROADS WITHIN THE HAMLET DEVELOPMENT, BEING THOSE PUBLIC ROADS AS SHOWN ON THE PLAT OF BOUGAIN- VILLA SUBDIVISION, AS RECORDED IN PLAT BOOK 32, PAGES 56 AN~ 57; THE ESTATES SUBDIVISION, AS RECORDED IN PLAT BOOK 38, PAGES 61 AND 62; THE ESTATES II SUBDI- VISION, AS RECORDED IN PLAT BOOK 39, PAGES 97 AND 98; THE ESTATES III SUBDIVISION, AS RECORDED IN PLAT BOOK 40, PAGES 64 AND 65; EVERGREENE SUBDIVISION, AS RECORDED IN PLAT BOOK 33, PAGES 150 AND 151; THE FAIRWAYS SUB- DIVISION, AS RECORDED IN PLAT BOOK 39, PAGES 62 AND 63;.~ FOXPOINTE SUBDIVISION AS RECORDED IN PLAT BOOK 32, PAGES 107 AND 108; GREENSWARD VILLAGE SUBDIVISION, AS RECORDED IN PLAT BOOK 29, PAGES 186, 187, 188,189 AND 190; LAKEWOODE - SECTION I SUBDIVISION, AS RECORDED IN PLAT BOOK 33, PAGES 103 AND 104; LAKEWOODE - SECTION II SUBDIVISION, AS RECORDED IN PLAT BOOK 33, PAGES 105 AND 106; LAKEWOODE - SECTION III SUBDIVISION, AS RECORDED IN PLAT BOOK 34, PAGES 99 AND 100; PINELAKE SUBDIVISION, AS RECORDED IN PLAT BOOK 36, PAGES 165 AND 166, ALL IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; PRO- VIDING FOR CERTAIN CONDITIONS TO WHICH SAID VACATING AND ABANDONMENT IS SUBJECT. (Copy of Resolution No. 2-82 is on file in the Official Resolution Book). The City Attorney read the caption of the resolution. Mr. Scheifley moved for passage of Resolution No. 2-82, seconded by Mr. Blair. Upon roll call Council voted as follows: Mr. Scheifley - Yes; Mrs. Durante - Yes; Mr. Blair - Yes; Mr. Bird - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. Before roll call the City Attorney advised there has been a revised copy presented to Council this evening; the one CQuncil is acting on should be the one that has 11 subparagraphs in Section 2. At this point the roll was called to the motion. 2. The City Attorney presented Resolution No. 4-82: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REPEALING RESOLUTION NO. 27-81 AND ENACT- ING A NEW RESOLUTION REQUESTING THAT PALM BEACH COUNTY ENTER INTO ANOTHER AGREEMENT WITH THE CITY OF DELRAY BEACH FOR PROVIDING BEACH EROSION CONTROL PROJECTS FUNDS TO THE CITY FOR AN ADDITIONAL PERIOD OF TEN (10) YEARS EXPIRING FEBRUARY, 1993 IN THE AMOUNT OF $200,000 PER YEAR; PROVIDING FOR AND DIRECTING THE CITY CLERK TO FUR- NISH COPIES OF THIS RESOLUTION TO THE PALM BEACH COUNTY COMMISSION AND ALL OTHER APPROPRIATE PUBLIC AGENCIES AND OFFICIALS. (Copy of Resolution No. 4-82 is on file in the Official Resolution Book). The City Attorney read the caption of the resolution. Mr. Scheifley moved for passage of Resolution No. 4-82, seconded by Mrs. Durante. Upon roll roll Council voted as follows: Mr. Scheifley - Yes; Mrs. Durante - Yes; Mr. Blair - Yes; Mr. Bird - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mrs. Margery Lipsky, 939 Bolender Drive, stated she has been an advocate of beach parking meters; however, she feels that since the Linton Bridge has been opened Council should reconsider permit parking at Atlantic Dunes Park to accommodate more residents from the south end of the City. Ideally, she would like residents with a permit to be allowed to park anywhere on the beach where there is a meter; if that is not possible, then all parks should be included. Mayor Weekes stated Council has had a year's experience with regard to the operation of the parking meters and the permits and he would suggest that Council submit to workshop for reconsideration the issue of permits and where they will be allowed to park. It was the consensus of Council to have the City Manager schedule a workshop in the near future to discuss this issue. At this point the roll was called to the motion. 3. The City Attorney presented Ordinance No. 4-82: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 12 "GARBAGE AND TRASH" OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 12-15 TO INCREASE THE MONTH- LY CHARGES FOR GARBAGE PICKUP FOR ALL CLASSIFICATIONS OF CUSTOMERS INCLUDING RESIDENTIAL, OFFICES AND COMMERCIAL CUSTOMERS; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFEC- TIVE DATE. The City Attorney read the caption of the ordinance. Mr. Bird moved for adoption of Ordinance No. 4-82 on First Reading, seconded by Mr. Blair. Upon roll call Council voted as follows: Mr. Scheifley - Yes; Mrs. Durante - Yes; Mr. Blair - Yes; Mr. Bird - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mr. Bird stated that Council is doing this in an effort to bring the City budget back in line; these are unfunded dollars that the City needs to have to arrive at year's end with their financial house in order. Mr. Bird advised it occurs to him that they have a very tough decision to face as to what the future trash collection is going to be within the City; he would like to make a suggestion after this question is called. Upon question by Mrs. Betty Matthews, the City Attorney out- lined the charges for garbage and trash service for residential dwell- ing units and offices. At this point the roll was called to the motion. Mr. Bird suggested that a committee be put together to work closely with the Administration in analyzing a lot of things that have not been considered by Council in their deliberations to date. They would take into account questions such as those which have been ad- dressed to Council from Tropic Bay and High Point,and the condominium developments with multiple containers such as Pines of Delray, repre- sentatives from the N. W. residential area, the black community and the beach area should be included. He would suggest the committee report back to Council at a workshop sometime in March. - 2 - 1/19/82 Mr. Joseph Martin, representing Abbey Delray South, spoke before Council and advised he had presented a request to the City Manager approximately six weeks ago for the potential of having a trash disposal with a compactor. At the present time the City is unable to perform this service and he believes this is something the City should take under consideration. He stated he would be happy to work with the City regarding this request and serve on the committee if necessary. Mrs. Durante asked that the committee also evaluate the roll- out can system again. It was the consensus of Council to have this item on the agenda for next Tuesday night with suggestions for committee members. 4. The City Attorney reviewed the background of the basics in this case, stating there was a SAD ordinance passed by Council in March 1979 which approved a SAD for a site located on the northeast corner of Linton Boulevard and Federal Highway. That SAD ordinance incor- porated within it,as one of the conditions of the SAD ordinance,the site plan developed by the architect for the developer and that site plan encompasses the entire project location. Thereafter, sometime in the latter part of 1981, a building permit was issued based upon a building plan submitted to the building department; the building plan does not match exactly the physical location or footprint that is reflected on the site plan in two respects: (1) the elevation portion shows a different roof than exists now and (2) the site plan shows a two island gas station and the building plan indicated three gas islands. However, a building permit was issued by the Chief Build- ing Official after that building plan and building permit application was submitted; part of the building permit application indicated that the gas station location was to be for a gas station and mini-store. The subject of dispute seems to be the addition of the third island for gas pumps which extends the platform covering the gas pump is- lands further than indicated on the site plan, the fact that the roof is not the same as shown on the sketches and whether or not a mini- store was authorized within the content of the SAD ordinance. The City Attorney stated he was advised that the inconsistency was dis- covered in the latter part of December. Based upon this the City is- sued a stop work order which is in effect at this time. The developer has requested this be brought to Council in an effort to resolve the issue. The City Attorney advised that his office has researched the question and has reviewed the legal memorandums that have been sub- mitted by Mr. Chapin; however, the City Attorney's office does not agree with their premise. The position that the City Attorney's Office~has taken is that this permit is not valid because it was be- yond the authority of the Chief Building Official to issue a permit, at least relative to the physical characteristics of the structure when it did not match exactly or substantially the site plan that was approved and incorporated by Council in the ordinance. The City Attorney stated he felt secure in recommending to Council that the City can revoke the permit. However, he cannot give that same assurance to Council that the City would not have to pay some, if not all, of the tab for having the right to do so. There is some dispute about how much the actual damages would be to correct the structure and make it conform exactly to the site plan. Mr. Robert Chapin, attorney representing Knight Enterprises, spoke before Council and stated that his client is embarrassed that all this has occurred; a human mistake was made by the supervising architect who did not catch it in the first instance and the error was compounded by the fact that the building canopy extends three feet further to the intersection than shown on the plans. He stated he has recommended in the past to the City Manager that approved plans by the P&Z Board be approved and double checked by the Planning staff so that the Planning Department coordinates with the Building Depart- ment. Mr. Chapin advised the station has been approximately 90% com- pleted, some $225,000 expended for construction and equipment of that - 3 - 1/19/82 facility and that it is too late to turn back. He recommended that the overall solution would be to approve the technical amendment to the SAD ordinance recommending that the plans originally prepared might be amended,as to the gas station site only,to reflect the dis- crepancy of the canopy and the two pump islands, and also include the two recommendations made by Kimley-Horn so that public safety is preserved. It is up to Council to solve the overall problem that has plagued the City for some time,and that is to direct better co- ordination between the planning staff and the Building Department. Mr. Frank Carey, Chairman of the P&Z Board, made reference to transcripts of three P&Z Board meetings during the time the nego- tiations with Mr. Knight took place. Mr. Carey advised that when Mr. Knight first approached the P&Z Board his request consisted of three items - the rezoning from RM-15 to SAD, conditional use and site and development plan approval. Following a series of meetings between the P&Z Board and the representatives of Mr. Knight, includ- ing Mr. Knight, the P&Z Board recommended to Council the approval of his request; subsequently, the Council acted on this recommendation. At that point the developer and the City entered into a contract which awarded to Mr. Knight certain favors and rights, but in return for that Mr. Knight represented to the City that he would live by the conditions agreed upon during the approval process to-Wit:the site plan submitted by the developer, the one approved by the P&Z Board and the one that bears his (Mr. Carey) signature which was a major step in the approval process and became a part of the SAD ordinance adopted for Old Harbor Plaza. Under the SAD ordinance, once adopted, the developer has no options; he must build as represented in the plan. There is a pro- cedure for requesting a change in site or i~ use and that must be im- plemented prior to any work on said change on the plans. The trans- fer of these rights by leasee to third party does not excuse Mr. Knight from his obligation. Errors have been made, but Mr. Carey stated he contends that it was Mr. Knight's duty and obligation un- der his contract with the City to submit only those plans that strictly complied with the approved site plan. Mr. Carey commented that during the discussions it was noted that the retail gasoline facility would be a gasoline dispensing facil- ity only; that was repeated time and time again. The issue of their traffic engineers and their architects making a decision that a third island was in the best interest of the City was none of their business. Upon question by Mrs. Durante as to what the approximate cost would be to remove part of the canopy and bring it into compliance with the site plan, Mr. Blair stated he has done some measuring and figuring from the original site plan and what is actually there now. He would estimate a figure of about $5,000 to take off the end bay; that is not the value of it, but merely the cost to remove it and get it out of the way. Michael Christensen, member of the P&Z Board, advised that it is clearly the consensus of the members present that they were not in favor of letting this project be built and occupied as is; es- pecially the convenience store and what they feel is going to be a traffic hazard in the increased volume of traffic. At their last workshop meeting they offered Mr. Knight a compromise that one bay be taken out and part of the roof structure be removed. Mayor Weekes advised that when Council approved that SAD ordinance they approved it subject to recommemdations of the City Engineer; one of the recommendations was that a specific site plan would have to be submitted for the service station. The specific site plan that was subsequently submitted was the one that was actually built;there is a letter in the file from the Engineering Department which says that this site plan as submitted meets all the criteria and is approved. Mayor Weekes questioned whether that recommenda- tion which Council approved as part of the original site plan stat- ing that they would have to submit a specific site plan for the ser- vice station offers any grounds for them to come in with a specific site plan for the station different than the footprint shown on the SAD. - 4 - 1/19/82 The City Engineer advised that when that plan was finally approved the Engineering Department had some concerns about the curb cuts into the service station. Trying to be diligent and concerned about how it would ultimately turn out, one of the requirements in- dicated was that just before going ahead they submit a detailed plan of the station. This was brought into the Engineering Department and the department looked at it specifically focusing on curb cuts, drain- age and how it conformed to engineering requirements. He advised the Engineering Department concentrated on the traffic aspect and over- looked the third island. Phyllis Plume spoke before Council stating she was Vice- Chairman of the P&Z Board at the time these discussions took place and cannot understand how something like this could have happened. She agrees with Mr. Carey in that the total burden in on Mr. Knight. The Board absolutely vetoed any convenience store; Mr. Knight reas- sured them there would be no such store. She also made reference to the meetings wherein the plans for the design of the gas station were discussed. Betty Matthews, 1024 White Drive, stated she would like to specifically address the convenience store. The public had been as- sured that the Linton Boulevard area would be the showplace of the City. If this convenience store is allowed, Delray Beach will have the distinction of having such a store at every major intersection in the City. She would request that Council spare the citizens from having another one of these stores. Mr. Chapin advised that the Knight organization has advised him that it would cost closer to $50,000 to resolve the problem of the canopy. With regard to the convenience store, Mr. Knight indi- cated that he would not have a full fledged convenience store, such as a 7-11;what is involved here is a mini-store with approximately 15 items in 750 square feet. Mr. Scheifley stated that both Knight Enterprises and the City's Building Department have made some serious errors. He cannot accept the statement that in reviewing the leasee's final plans and specifications the architect, Peabody and Childs, did not discover the discrepancies. Also, the Building Department erred in issuing this permit. Mr. Blair stated that there has been very poor communica- tion between the Building Department and the P&Z Board over the years. There was a short period of time when a member of the Building Depart- ment sat in on the P&Z meetings and at that time they felt the commu- nications were improving, but evidently it has gone back down hill again. If this project were in the footing stage then he would say it was an easy problem where it could be torn out; however, when you let someone go all the way up to the roof then he would question the wisdom of tearing it back down. He would have to do a lot of think- ing before he would vote to tear it down. Mr. Bird questioned what it is really going to cost; he would be interested to hear as to just what the City's liability would be. He would view it to be the cost of having built what is there, the cost of removing what is there, the cost of building back what is to be replaced and any lost profits for the additional delay. He would venture a guess somewhere in the neighborhood of $500,000 for the taxpayers of Delray Beach to be potentially saddled with. The ultimate loser, if Council makes the wrong decision, is every taxpayer in the City. Sandy Simon, P&Z Board member, recommended to Council that they consider a compromise; he doesn't believe destroying the build- ing is the answer nor is leaving the building as it is. He would hope that the P&Z Board could work in concert with the developer in reaching a compromise. Developer William Knight stated that with regard to the proposed solutions in cutting back the canopy, it cannot be cut back; - 5 - 1/19/82 it must be torn down and rebuilt. The traffic analysis that they have indicates that the third pump island actually alleviates the traffic congestion, allowing more cars to get on the site rather than back up on the road. Mr. Knight advised they recognized that there was a change in the plans; they submitted those changes to the Planning Department. They were told to go to the Building Department and that department made the determination. He stated he was never aware that the SAD ordinance could n~ver be altered in any particular way at all. Mrs. Durante stated she felt it was not fair for Council to go ahead and make the decision other than send it back to the P&Z Board. She feels there is a matter of integrity here as far as the City and the P&Z Board are concerned. Upon question by Mr. Bird, the City Attorney advised that he was told by the Building Department that the first time they be- came aware of the discrepancy was in December. The first inspection was on No~ember 24th, the second on December 4th, the third on Decem- ber 14th and the fourth on December 21st; the Chief Building Official's memo also indicates December 29th. Upon question by Mr. Scheifley, Mr. Knight stated that with regard to the giving up of the convenience store, it is not a con- venience store; they have a total of about 14 items. Mr. Scheifley rephrased his question and Mr. Knight stated he would be willing to give up the mini-store if they were reimbursed for the cost that they paid for that convenience. Mr. Carey advised that Mr. Derry, former Acting Building Official, went to the Planning Director with this request for the permit. Mr. Kotulla told Mr. Derry not to issue it; it was wrong. Mr. Derry also asked the staff and then went ahead and signed it anyway. Ronald Sales, attorney for the applicant, stated that they need a decision tonight and it is within the City's province to make this decision. He has advised Mr. Knight to give the convenience store away if that will solve the problem. Mr. Knight received ap- provals from persons who are the City's agents and he believes the City is bound by their actions; he would hope there would be a favor- able vote to amend the ordinance technically to leave the footprint of the building as is so as not to waste money and cause expense. Mrs. Durante moved to refer this issue to the P&Z Board to work out a compromise and have the P&Z Board submit a recommenda- tion to Council, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Scheifley - Yes; Mrs. Durante - Yes; Mr. Blair - No; Mr. Bird - No; Mayor Weekes - No. The motion failed with a 3 to 2 vote. Mr. Bird moved a technical amendment be made to the SAD ordinance showing the current footprint as it exists, subject to additional engineering corrections by Kimley-Horn in conjunction with Mr. Church and with the deletion of the mini-store; the stop work order to be lifted, seconded by Mr. Blair. Upon roll call Council voted as follows: Mr. Scheifley - Yes; Mrs. Durante - No; Mr. Blair -Yes; Mr. Bird -Yes; Mayor Weekes - Yes. Said motion passed with a 4 to 1 vote. Before roll call the following discussion was had: Mr. Scheifley stated this motion will probably pass; he feels Council is making a mistake to amend the ordinance to take care of this case because it will set a precedent, however, it is the most practical solution. Mrs. Durante stated she would vote no on this motion be- cause she felt a much better solution could be worked out if it were sent back to the P&Z Board. At this point the roll was called to the motion. - 6 - 1/19/82 Mr. Bird stated that Mr. Carey's remark that the Planning Director knew that the Building Official was going to issue a permit that violated the site plan, to him may be the essence of the entire problem. The question should have been resolved in the City Manager's Office and he believed it was incumbent upon the Department Head that knew the error was going to be made to have informed the City Manager. Mayor Weekes adjourned the meeting at 8:55 P.M. and declared a short recess. ATTEST: MAYOR The undersigned is the City Clerk of the City of Delray Beach and the information provided herein is the minutes of the meet- ing of said City Council of January 19, 1982, which minutes were formally approved and adopted by the City Council on ~-~. ~t /~-~. ~ity Clerk 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. - 7 - 1/19/82