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03-13-78 287 MARCH 13, 1978 A regular meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 7:05 P.M., Monday, March 13, 1978, with Mayor James H. Scheifley, presiding, and City Manager J. Eldon Mariott, City Attorney Roger Saberson and Council members Robert D. Chapin, David E. Randolph, Aaron I. Sanson, IV, and Leon M. Weekes, present. 1. The Lord's Prayer was recited in unison. 2. The Pledge of Allegiance to the flag of the United States of America was given. 3. Mr. Weekes moved for the approval of the minutes of the meeting of February 27, 1978, seconded by Mr. Sanson. Said motion passed unanimously. 4.a.1. Mr. Chapin stated that those who participated in organizing the St. Patrick's Day Parade deserve a great deal of credit for a very fun Saturday afternoon. He made the observation that next year, if the elections aren't completed, he will run in that parade, and feels he could make it because of all the stops. 4.a.2. Mr. Chapin noted he was called to St. Louis on business Sunday morning and was there waiting for an airplane to leave at 4:00 Tuesday afternoon; it snowed 9 inches, cars were slipping off the road, airplanes weren't flying and it was the 61st day in a row where there was snow on the ground. The municipal officials were upset because their budgets were severely out of balance - not having anticipated such a severe winter. He stated that when he got back to Delray a day later he was very happy to be back. 4.b.1. Mr. Sanson stated he feels that Council has had a lot of items pile up, some which are extremely important issues. He questioned whether Council might want to consider scheduling a workshop or two to catch up. 4.b.2. Mr. Sanson stated he has received a copy of a memo from Karen Sawchuk, who was designated by the City Manager to be the spokesperson on this project to point out matters of attention that should be given by the County, concerning Atlantic Dunes Park. She also listed for Anchor Park, what she considers to be some fairly major items she would like the County to give attention to. As one member of Council, he would like to think that the County would give proper attention to each one of these items. It does seem that there is some merit to be considered in the aspect that the construction of these two parks has been less than professional. 4.b.3. Mr. Sanson read the following letter handed to him by Mrs. Amy Noble concerning the billboard that is going up on Federal Highway. "It was brought to my attention by several residents of Delray Beach that a billboard is in the process of being erected in the center island of US#l, just North of the Delray Mall. I feel that this is a disgrace to the City of Delray Beach and it's residents. Once again we are being imposed upon by a few residents in the City that own property that is in the County pockets within the City limits. As you know these property owners benefit from all City services which we pay for and in this particular case are trying to sell their wares to the residents of the City through the use of unsightly billboards located in a nice section of our main highway. I am urging all members of City Council to do their utmost to either bring pressure to bear on the County Commission to have these County properties conform to the City ordinances or make a concerted effort to have these County pockets annexed into the City." He stated that her letter expresses what he feels in terms of that matter. Mr. Sanson noted that this property is a County pocket and owned by Southern Federal, or someone who works for them, and the billboard is going to advertise "Southern Federal" He stated he thinks it is a shame that a respected financial institution in Delray does not care more about the appearance of the City not to try to cooperate. 4.b.4. Mr. Sanson stated that in reference to County pockets, last Thursday he was at the Regional Planning Council and he had a chance to talk with Mrs. Evatt about the aspect of the letter that was sent to her by the City Manager. The letter outlined three requests that Council had given the County Commission, through her as chairwoman, to see what could be done about the county pockets. To her recollec- tion, she had not seen the letter. Mr. Sanson stated he took a copy of the Land Use Map outlining the problem with him to the meeting. She had no idea what it was about and acted as if she had never seen the situation before and had no idea how many pockets the City has. She indicated that she would like to become more knowledgeable and help out anyway she could. Mr. Sanson stated that he would like to pursue this and send her a recopy of that letter. 4.b.5. Mr. Sanson noted that he also brought up the matter of the 21 acres of land a gentleman wanted to annex into the City and be given sewer and water to Mrs. Evatt and Mr. Medlen. The County was debating whether to leave this land agricultural and Mr. Medlen informed him that last week they voted on this matter and favored the annexation of the land into the City subject to R-1AAA zoning and as far as he understands, that action has been consummated. Mr. Sanson stated he would like to proceed and get that land annexed into the City. 4.c. Mr. Weekes stated he would like to have the consensus of Council to ask the City Manager to schedule for workshop, as soon as reasonably possible, the consideration of a professionally designed and monitored physical fitness program for the City's firefighters and Police Department. Mr. Chapin stated he would applaude that to a great degree, and feels that the idea of physical fitness has been proven beyond a reasonable doubt that this is something advantageous to better health, better performance on the job and he whole-heartedly endorses this concept. This was agreed to by all members of Council. 4.d.1. Mayor Scheifley stated that the letter from Amy Noble expresses the feelings of all the citizens of Delray Beach who are aware of the problem of the billboard. He stated that he knows that the City Manager has been in contact with Bill Medlen, who is probably the key man in this; however, he put in a call to the President of Southern Federal Savings and Loan, Mr. Grimditch who is apparently not in Florida. Then he asked for the next highest man in command and it happened to be the Executive Vice President, Mr. Niebling. He seemed to be aware that there was a problem and stated the bank didn't want to do anything that the City officials objected to or that the public wouldn't - approve. Mayor Scheifley stated he informed Mr. Niebling that, if the bank continued to put up these large billboards, it would be to their detriment not to their advantage. He noted that Mr. Niebling seemed to be very sympathetic and said he would see what he could do to stop it. The Mayor added he then went over to the branch bank of Southern Federal Savings & Loan and a very personable lady was managing that but was not aware of the problem or that a billboard was going up or that their bank owned it. Mayor Scheifley stated he has the name of the company that is putting up the billboard, their address, phone number and name of the manager (Mr. Ben Von), however, it is not their concern. Mayor Scheifley noted that everything possible is being done to put a stop to this. Mayor Scheifley stated that for ten years the City has been talking about annexing pockets and the only progress that has been made is to annex 19 vacant lots east of the Intracoastal. - 2 - 3/13/78 289 4.d.2. Mayor Scheifley read a proclamation proclaiming Tuesday, March 21, 1978, as the day for the Second Nonpartisan Election, between the hours of 7:00 A.M. and 7:00 P.M. 5. Phyllis Plume, 409 Lake Drive, Delray Beach, stated a formal l~tter of protest from the Council protesting this billboard on Federal Highway is very much in order. Mayor Scheifley stated he thinks Mrs. Plume is right but he is under the impression some activity is taking place which may result in the removal of the billboard without the necessity of that. 6.a. The City Manager reported he has received an offer from the County Commission through Commissioner Bill Medlen, to make available for City and public use, a park site consisting of about 20 acres. It is located in the county on the west side of the lake (Lake Ida), on the east side of the 1-95 right-of-way, and adjacent to and imme- diately south of the canal that separates Delray Beach and Boynton Beach. The County is in the final stages of clearing this land and levelling it off and Commissioner Medlen said that he is willing for the County to make that available for public park and recreational use, if the City wants it. It will be at no expense to the City - the County would develop~ it and pay whatever operational expenses that would be involved. The City Manager stated he has asked the City's Parks & Recreation Director to consult with the County Parks & Recrea- tion Director to devise a list of proposed uses for it; when that list is completed, perhaps Council would want to workshop it and thoroughly discuss it to see what all would be involved and decide whether or not they would want to accept the park area on that basis. 6.b. The City Manager reported it is recommended that Council set the second regular meeting of Council to be held during the month of March for 7:00 P.M., Tuesday, March 28th, as the fourth Monday will be observed by the City as a holiday (Easter Monday). Mr. Chapin moved that the next regular Council meeting be held on Tuesday, March 28, 1978 due to Monday being observed as a holiday, seconded by Mr. Sanson. Said motion passed unanimously. Mr. Sanson questioned whether or not to wait until the work- shop meeting next Monday to decide if special workshop meetings will be held. The City Manager stated he thinks one or two workshop meetings will be needed but to wait until after next Monday to have the special meetings. 6.c. The City Manager reported that it is recommended that Council authorize approval of Change Order No. 2 - Sanitary Sewerage Project, Part B, which will add $7,271.10 to the original contract price of $245,660.98. The change is needed to correct a misalignment between the existing piping and the new larger pump bases. $5400 plus of the $7200 addition will be paid by EPA and the balance would be local funds. Mr. Randolph moved for the approval of Change Order No. 2 - Sanitary Sewerage Project, Part B, seconded by Mr. Weekes. Said motion passed unanimously. Mayor Scheifley noted that he will not be able to attend the meeting Thursday night in Boynton Beach due to a prior commitment. Mr. Randolph stated that he has a slight problem but, if he is needed for a quorum, he will make arrangements to be there. 6.d. The City Manager reported it is recommended that Council approve entering into an agreement with Palm Beach County to share equally in the cost ($6,750 each) of traffic signalization at the intersection of West Atlantic Avenue and Barwick Road. The County has agreed to assume responsibility for maintenance of the signal. Funds are encumbered from prior years in the Traffic Signalization Account of the City. - 3 - 3/13/78 The City Attorney stated that on page 2, two lines up from the third numbered paragraph where it states" ...... Municipality should not be required to defend the County ....... ", it should read " ..... Municipality should not be required to defend or indemnify the County ...... ". Mr. Chapin moved for the authorization of the City of Delray Beach to enter into an agreement with Palm Beach County for a traffic signal to be located at West Atlantic and Barwick Road as amended by the City Attorney, seconded by Mr. Randolph. Said motion passed unanimously. Before roll call Mayor Scheifley noted that all the people who signed the petition for this light do not live in the city but in County pockets. It is a primary benefit to them but there will also be a lot of other traffic on Barwick Road. 6.e. The City Manager reported it was agreed at the March 6th Council workshop meeting that the city would purchase a bus for the use by senior citizens, with Gulfstream Areawide Council on Aging assuming all responsibility for housing, maintaining and operating the bus. The following quotations were recently received for selling the City a van type mini bus for use by the Parks & Recreation Department: BIDDER QUOTATION Adams Chevrolet Company $7,198.00 Delray Beach Earl Wallace Ford, Inc. 7,699.90 Delray Beach Council, at its February 27th meeting, authorized purchase of a vehicle from the low bidder, Adams Chevrolet at a purchase price of $7,198. An identical vehicle would be satisfactory for the senior citizens we have determined in conference with Mr. David Cohen, Chairman, Gulf- stream Areawide Council on Aging. It is, therefore, recommended that Council authorize the purchase of a second vehicle from Adams Chevrolet at a purchase price of $7,198 with funding to come from the General Fund Contingency Account. The City would not be responsible for the housing, operation, maintenance or any other expense in connection with the bus. This would be subject to an agreement to be devised by the City Attorney's office. Mr. Weekes moved that Council authorize the purchase of the bus, seconded by Mr. Randolph. Said motion passed unanimously. Before roll call the following discussion was had. Mr. Weekes stated that representatives of the senior citizens of the City came before Council during the workshop sessions on the budget and requested a number of items including this bus, He was delegated, a committee of one, to meet with representatives of the Gulfstream Council to discuss the matter and determine that, in fact, all they were asking the City to do is make the initial capital outlay; that they had arrangements for insurance, scheduling, maintenance, operation, gasoline, garaging, and all other attendant expenses except the initial capital outlay. Mr. Weekes stated that after he had satisfied himself on this score, he told them he would recommend the purchase of the vehicle to Council, which he subsequently did and after a couple of workshop sessions on it, it finally came back last week at which time the City Manager was instructed by majority of Council, to go ahead and take bids. Mr. Weekes stated that the only question he has with regard to the bids is that he was told the senior citizens, through some other agency, had a source of purchasing this vehicle which might be con- siderably cheaper than the City would be able to purchase it even under the bidding procedures. He asked the City Manager if he investigated this to see if it was indeed possible. David Cohen, 501 Dotterell Road, Delray Beach, stated that they found it to be more feasible to go along with the City Manager - - 4 - 3/13/78 they do not have any source Of supply to get the bus cheaper. Mr. Cohen, Chairman of the Board of Directors of the Gulfstream Area- wide Council, made remarks in behalf of the Region 9 State Division of Aging, endorsing the purchase of the bus. Mr. Chapin asked what evidence there is for the need for this bus for the senior citizens - has there been a survey established showing that so many people are shut in without transportation to go to the doctors, shopping, etc., and what evidence is there that the existing churches, social and civic clubs are not meeting that existing need? He also asked would this bus be for Delray residents only or for those who live in County pockets as well? He stated that it is his understanding that this is a one time only request for capital outlay; all other operating expenses, insurance and indemnifications, hold-harmless agreements to the City will be secured in this and that two, three or four years later there will be no further request for additional outlays. Mr. Chapin noted that this is a one time propo- sition to get the program rolling and, if it proves successful, the capital outlay won't come again from the areawide council. Mr. Cohen stated that every year or every other year, Region 9 makes a survey of the area in Palm Beach County for the needs and, when there is a need, Gulfstream Areawide does try to bring a program to that area where the needs are greater; besides transportation there is a need for nutrition, meals on wheels, etc.; there are so many needs and they are determined by this survey. In their Council, they do have a program of communicators, friendly visitors, who do investi- gate the needs and do investigate these calls that might be made to see that they are authentic. 'Mr. Cohen stated it is their understanding that this is for the City of Delray Beach and would not object, that this be part of the agreement and thought that it was part of the agreement. He added they did consult with the City Manager regarding the needs in the City of Delray but that doesn't mean that should there be an emergency that they might not help. Mr. Sanson asked is it also to be assumed that this bus is open for the use of all people - black or white, Jew or Christian and this is not going to be set up for just some special club or organiza- tion but will only be for the senior citizens and not the younger people. Mr. Cohen stated that this bus will be for senior citizens age 60 and over and it doesn't make any difference what part of town they are from. Mr. Chapin stated it is his understanding that in this agree- ment between the Gulfstream Council of Aging and the City of Delray Beach, this mini-bus will be used only by those who live in the City of Delray Beach. He stated that this puts a burden on Mr. Cohen, his organization, dispatchers just as it puts a very substantial burden on the Fire Department to know who lives in the City and who doesn't. Mr. Chapin noted that here is an example of providing a municipal service with municipal funds and they want to make very sure and very clear that municipal dollars are to be spent for municipal residents and he would request the City Attorney, in drawing up this agreement, to so provide. Mr. Cohen stated that South County - Boynton Beach do have a transportation service for those in need and all they have to do is telephone and they just want to make sure the City of Delray got the service. Mayor Scheifley stated to Mr. Cohen that the problem is more difficult than he thinks it is to administer. There are 75 pockets and everyday you get a call you have to look to check the address and maybe the records are not up-to-date. Mr. Chapin asked what happens if it should come to the attention of the City Administration that the problem of in the City and out of the City is so extreme that it is not being administered - 5 - 3/13/78 properly, will the City have ~any recourse of getting the bus back? Mr. Cohen stated that the Division of Aging has a monitoring service regularly to check on that. If they are not doing the service, or if there are any problems, it is taken care of. Mr. Chapin stated that his profession would indicate that in the writing of an agreement, to make it enforceable, feasible and understandable by both parties to the agreement, that in the event there is a breach of that agreement there would be a corresponding remedy. It seems an appropriate corresponding remedy may be the suspen- sion of the services to the non-pockets or return of the bus to City for the benefit of its taxpayers. Mr. Weekes commented that the Police and Fire Depar~aents are having a difficult time of enforcement and it would be equally as difficult for this organization to comply and that type of burden should not be placed upon them. Mr. Sanson questioned why the funds will be coming from the General Contingency Fund instead of the Revenue Sharing Fund. The City Manager replied that there is not enough money in the Revenue Sharing Fund, therefore, the funds would have to come from the Contingency Fund. At this point the roll call on the motion to authorize the purchase of the bus ~as had. 6.f. The City Manager reported that it is recommended that Council approve an amendment to the Cooperative Dispatch Center Interlocal Agreement for the purpose of providing that the Towns of Gulfstream and Highland Beach may jointly designate an individual to sit with the CDC Board of Directors for the purpose of voting on the allocation of costs to the municipalities and adoption of the budget. Upon question by Mayor Scheifley as to how many directors there are now, the City Manager replied three and they are the City Managers of the three larger cities. This amendment would provide that the towns of Gulfstream and Highland Beach would jointly designate an individual who will sit with the Board to cast a vote on just two things - adoption of the budget and the allocation of cost. Mr. Weekes moved that Council approve the agreement amending the Cooperative Dispatch Center Interlocal Agreement, seconded by Mr. Sanson. Said motion passed unanimously. 7.a. The City Manager reported that a communication has been received from the Veterans of Foreign Wars, Post No. 4141, requesting permission to solicit funds on April 7 and 8, 1978; approval of which is recommended by the Solicitations Committee. Mr. Sanson moved that permission be granted to the Veterans of Foreign Wars to solicit funds on April 7 and 8, 1978, seconded by Mr. Chapin. Said motion passed unanimously. 8.a. The City Manager reported that Resolution No. 17-78, supportinf the Treasure Coast Regional Planning Council's participation in the Fox D.R.I. appeal and objecting to the construction of the Fox development, is before Council for passage consideration. The City Manager presented Resolution No. 17-78: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, TO THE TREASURE COAST REGIONAL PLANNING COUNCIL SUPPORTING THE PLANNING COUNCIL'S PARTI- CIPATION IN THE FOX DRI APPEAL AND OBJEC- TING TO THE CONSTRUCTION OF THE FOX DEVELOPMENT OF REGIONAL IMPACT. - 6 - 3/13/78 293 Mr. Sanson stated that this is what he hopes will be an expression, on the part of City Council, recognizing that proper land use planning is a concept that they recognized and support. This project, as stated in the resolution, is approximately over 10,000 dwelling units with an estimated population of 18,500 people, which is scheduled to be built west of the City of West Palm Beach. The land is located in an extremely environmentally sensitive area; there is approximately 1700 acres of land and the developer proposes to leave only 14.5 acres in its natural state. The resolution does not state that they are opposing the man's right to develop -all they are saying is that they are supporting the efforts of the Regional Planning Council; that their efforts being of a nature to study the environmental impacts and to insure that when development commences that these impacts are properly given attention to and, to whatever extent possible, the impact will be minimized. Mr. Sanson moved for the passage of Resolution No. 17-78, seconded by Mr. Randolph for discussion. Mr. Weekes asked if this has been before the Treasure Coast Regional Planning Council prior to this time; Mr. Sanson answered, yes. Mr. Weekes then asked was the application denied and then taken to appeal by the developer and now coming back? The City Attorney stated that the County, in 1974, approved a development order approving it, and in the South Florida Regional Planning Council, appealed the development order because certain aspects Of their assessment report were not adequately dealt with in the development order. They spent a little over two years litigating the procedural question of whether or not the appeal had been timely filed; the developer took the Regional Planning Council and the Florida Land & Water Adjudicatory Commission to court, one to the 4th District and one to the 1st District and ultimately to the Supreme Court which decided that the case had been timely filed. They then spent approxi- mately 18 months in settlement negotiations until last November when the developer invoked a 120 day adjudicatory section of Chapter 380 and the trial date was set and the hearing is next Monday. Mr. Sanson noted that the City of Belle Glade has'already passed a similar resolution; if Mrs. Roberts is not defeated tomorrow, he would assume that she had intentions of introducing a similar resolution in West Palm Beach; the City of Boca Raton is also looking at it and con- sidering it but he does not know what their intentions are. Mr. Sanson stated that Council might think that this is too far away and would not immediately affect the City of Delray,' possibly, that is correct. This population is based on a very low estimate - basically on a very elderly population, approximately 1.8 people per dwelling unit. Basically, the experts feel that the population will be much higher and this project will be of considerably a higher density total than the development of Century Village. He stated they are not saying that there is anything wrong with a man being able to develop his land but, if he is going to have an impact, that these impacts be minimized to whatever degree possible. The Treasure Coast Regional Planning Council, consisting of 15 elected officials from four counties have unanimously supported this appeal and he would like to think that some of the local elected officials would support them. Mr. Weekes stated he questions whether or not this Council has any business getting involved in this as a body. Local public officials are well represented and, in fact, the Treasure Coast Regional Planning Council and all other planning councils are made up of elected public officials; Mr. Sanson represents this Council. Mr. Weekes stated he thinks they are quite able to protect the interest of the citizens of this County and he questions whether or not they need any further support from Council, as a political subdivision. - 7 - 3/13/78 Mr. Randolph stated'he supports the idea but he objects to the actual construction. Mr. Chapin stated that, having an opportunity to review this, his problem is a matter of jurisdiction - what right does this Council have to exercise some voice of expression on some development that they don't know the specifics about located some 17 to 20 miles away. He stated he believes the proper way to approach this matter would be through the appointed representative, Ron Sanson, who was there viewing the evidence first hand and who can cast a vote based upon the argu- ment presented for and against. He stated he feels that they are a step removed from the facts and to get into a matter outside the City's jurisdiction causes concern from a governmental law point of view. Mr. Sanson stated that what Council is saying is that they are supporting the efforts of the Planning Council and its participation of the D.R.I. appeal and that's what he is really looking for. What they are actually saying is that, as of right now, this Council has voted to allocate the expenditure of about $25,000 of tax dollars to fight this appeal. He stated that quite frankly there are some people on that Council that really wonder whether other people within this region feel that these monies should be spent. They are going to have to face future decisions as to whether more money should be spent to pursue this thing in court; the more response the 15 members of this Council get from the local people saying they support the actions in the appeal to insure proper land use planning, the more they will know it is right for them to vote to spend tax dollars of the citizens in this particular case of Delray. 'Mr. Chapin commented that if that was put in a letter form in that context and that context alone, he would support it. But to talk about the specifics of some particular development causes him a little different concern. Mr. Weekes stated that he objects very much to Section 1 where it says" ..... objects to the construction of Fox development of regional impact unless and until the adverse impacts of such development have been properly resolved in the public interest." He does not know what the adverse impacts are they are referring to and he is not sure that he would necessarily agree that what they think is an adverse impact would be what he would agree is an adverse impact. He stated Mr. Sanson is asking Council to vote on something that they don't have any first knowledge on; he agrees with the con- cept that they should try to protect the public's interest and that the Treasure Coast Regional Planning Council should fight for what it believes to be right. But he does not think that in the context this is presented to Council, that he can support it. Mr. Chapin suggested that a letter could go from the Mayor, in general terms, circulated to the members of Council to see if they approve - a general statement saying that this Council approves of proper land use planning to protect the environment and to protect the quality of life - this is the kind of thing he would support. Mr. Weekes moved that Council table Resolution No. 17-78, seconded by Mr. Chapin. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - Yes. Said motion passed with a 5 to 0 vote. Mr. Chapin moved that a letter be sent under the signature of the Mayor to be circulated i to the members of Council for their approval to support Mr. Sanson's efforts on the Treasure Coast Council, particularly, in his efforts to protect the environment and quality of life for the 5 counties involved in the jurisdiction of that Council, seconded by Mr. Sanson. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - Yes. Said motion passed with a 5 to 0 vote. - 8 - 3/13/78 295 Before roll call Mayor Scheifley asked if Mr. Sanson would draft a letter in his behalf to this effect; Mr. Sanson answered, yes. 8.b. The City Manager reported that Ordinance No. 16-78, amending Chapter 29 "Zoning" of the Code of Ordinances relative to commercial site plan approval, is before Council for passage consideration on Second and FINAL Reading. This ordinance was passed on First Reading at the February 27th meeting. 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 City Manager presented Ordinance No. 16-78: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 29 "ZONING" OF THE CODE OF ORDI- NANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 29-9 NC DISTRICT (B) PERMITTED USES TO ADD A~ NEW PARAGRAPH UNDER (B) TO READ "ALL DEVELOPMENTS SHALL BE SUBJECT TO SITE AND DEVELOPMENT PLAN APPROVAL"; SECTION 29-11 GC DISTRICT (N) BY ADDING A NEW SUBSECTION (4); SECTION 29-12 SC DISTRICT (N) BY ADDING A NEW SUBSECTION (4); SECTION 29-13 CBD (0) BY ADDING A NEW SUBSECTION (3); SECTION 29-13.1 LC DISTRICT (M) BY ADDING A NEW SUBSECTION (4); PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. CoDy of Ordinance No. 16-78 is on file in the official Ordinance Book.) The City Manager 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. Chapin moved for the adoption of Ordinance No. 16-78 on Second and FINAL Reading, seconded by Mr. Sanson. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - Yes. Said motion passed with a 5 to 0 vote with the amendment included in the following discussion. Before roll call the following discussion was had. Mr. Weekes stated that under B Permitted Uses, Section 2, paragraph 4, where it states" ..... a minimum floor area of six-thousand (6,000) square feet." and where it states" ..... a minimum lot size of one-half (%) acre.", he thinks it should say "in excess of or more than six-thousand square feet" and "in excess of or more than one-half acre" for clari- fication. The City Attorney suggested that the wording be one-half acre or more and six-thousand feet or more; this was agreeable with Council and accepted by Mr. Chapin and Mr. Sanson as an ammendment to the motion. It was agreed that wherever that terminology is used in the ordinance it should be change. 8.c. The City Manager reported that Ordinance No. 19-78 is before Council for passage consideration on Second and FINAL Reading. This ordinance, if passed, will amend Ordinance No. 29-74 by establishing February 28, 1979 as the date for completion of construction of the CATV System. This ordinance was passed on First Reading at the March 6th meeting. 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. - 9 - 3/13/78 The City Manager presented Ordinance No. 19-78: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 29-74, SEC. 23(a) (6) BY ESTABLISHING FEBRUARY 28, 1979, AS THE DATE FOR COMPLETION OF CONSTRUCTION OF THE CATV SYSTEM PROVIDING, HOWEVER, THAT THE TIME FOR PERFORMANCE WILL BE EXTENDED FOR ACTS OF GOD OR OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE FRANCHISEE WHICH DELAYS PERFORMANCE; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 19-78 is on file in the official Ordinance Book.) The City Manager 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. It is noted that Mr. Chapin left the room momentarily at this time. Mr. Weekes moved for the adoption on Second and FINAL Reading of Ordinance No. 19-78, seconded by Mr. Randolph. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - Yes. Said motion passed with a 5 to 0'vote. 8.d. The City Manager reported that Ordinance No. 10-78, relative to rezoning and placing land presently zoned RM-15 (Multiple Family Dwelling) District in RM-6 (Multiple Family Dwelling) District, located in Section 29-46-43 east of Jaeger Drive between Curlew Road and Dotterel Road, is before Council for passage consideration on First Reading. The affected property owners have been notified pur- suant to Section 166.041(3) (c), Florida Statutes. At the meeting on January 9th, Council authorized the City Attorney to prepare the ordinance. Second and FINAL Reading and public hearing will be held at the meeting on March 28th. The City Manager presented Ordinance No. 10-78: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING AND PLACING LAND PRESENTLY ZONED RM-15 (MULTIPLE FAMILY DWELLING) DISTRICT IN RM-6 (MULTIPLE FAMILY DWELLING) DISTRICT, E½ AND W½ OF THE NE¼ OF NW¼ OF SE¼ OF SECTION 29-46-43, AS RECORDED IN PLAT BOOK 6, PAGE 50 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID LANDS LYING NORTH OF CURLEW ROAD, SOUTH OF DOTTEREL ROAD AND EAST OF JAEGER DRIVE, AND AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, 1977". The City Manager read the caption of the ordinance. Mr. Weekes moved for the adoption of Ordinance No. 10-78 on First Reading, seconded by Mr. Chapin. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had. - 10 - 3/13/78 Jack Thomas, 1325 Biscayne Blvd., Miami, Florida, stated he thinks the key issue here is that this rezoning from RM-15 to RM-6, does not represent good planning - it represents a form of spot zoning; the RM-6 will encourage rental projects such as duplexes and triplexes. He stated he is on record as requesting something less than 10 even if it meant deed restricting the property to 8 or 8% units per acre so they could get an economically feasible townhouse development. Mr. Thomas stated that Mr. Milani feels the same as he does and they would appreciate Council's consideration in the matter because it is an important financial decision they are making for their property. Elaine Olinger, 519 Curlew Road, Delray Beach, stated she lives adjacent to the land in question and she still thinks that in view of the defunct condo that is sitting on Dotterel, the twinplexes that are down on Albatross, the area is not conducive to condominium, duplex or twinplex living. It is a single family area which is bound by single family homes of $45,000 and up and, if they reasses and re- analyze this hold situation, it might be to their benefit to go single family homes. Mr. Cohen, 501 Dotterel Road, Delray Beach, stated he lives adjacent to where all this problem is and he disagrees with the state- ment that RM-6 would be beneficial to the group. What they have now is a lot of sandhills and dust and dirt, dogs all over there, kids playing out in the dirt and, as soon as these people get permission to build and build within their means, he sees no reason why they can't go with RM-10 and to two-story it is fine. Mark Manafo, 1378 Audubon Blvd., Delray Beach, President of the Tropic Palms Homeowners Association, stated he and Mr. Brawner drove through the neighborhood and it really is conducive to single family homes and it is fair that the gentlemen get a return on their investments. He stated that this is the position of the residents of Tropic Palms. Mr. Sanson moved that Council amend the motion that this property be rezoned to Single Family R-1AA. The motion died for a lack of second. Mr. Chapin stated he is going to support RM-6 for this pro- perty because he would like to see what has been described as those "two white elephants" reduced from RM-15 to a more compatible RM-10 which will be a great benefit to the residents down there. To take a man's property from RM-15 to single family would be almost unconscionable; he thinks!that this is the proper approach to limit growth around the area and to reduce the density surrounding the single family homes. Mr. Manafo requested that this item be tabled rather than rezoned to RM-6. Mr. Sanson stated he would rather see this voted on as RM-6 and then Council could be petitioned to have this piece of property further studied in the future. The roll was called on the original motion. 9.a. The City Manager reported that the Planning & Zoning Board, at a meeting held on February 28th, recommended by unanimous vote that the site plan modification request of Sabal Pines South, located north of the C-15 Canal, between Congress Avenue and the E-4 Canal to construct a swimming pool, be approved as a minor modification. The City Manager stated that this would probably be the last such item that Council will vote on of this nature - in the future the minor modifications will be handled entirely by the Planning & Zoning Board. Mr. Randolph moved that Council sustain the recommendation of the Planning & Zoning Board, seconded by Mr. Weekes. Said motion passed unanimously. - 11 - 3/13/78 9.b. The City Manager reported that the Planning & Zoning Board, at a meeting held on February 28th, recommended by unanimous vote that the site plan modification request of Rainberry Bay (Section lA), located at the northwest corner of the intersection of Lake Ida Road and Davis Road to eliminate one building and rearrange a number of others, be approved as a minor modification. Mr. Chapin moved that Council sustain the recommendation of the Planning & Zoning Board, seconded by Mr. Randolph. Said motion passed unanimously. Before roll call Mr. Sanson stated that based on the ordinances that Council passed at the last Council meeting, as he understood it, this Council would no longer consider minor modifications. Mr. Sanson questioned if this Council would have anything to say as to what is a minor and a major modification? The City Attorney stated that this is correct; the ordinance says that the Planning & Zoning Board has the authority to define what is major and what is minor. Mr. Sanson noted that he opposes the ordinance even more. 9.c. The City Manager reported that the Planning & Zoning Board, at a meeting held on February 21st, recommended by a vote of 5 to 1 (Pompey dissenting) that the Jordan-Svitak rezoning request of a parcel of land from RM-10 (Multiple Family Dwelling) District to SC (Specialized Commercial) District located in Section 29-46-43 at the northeast corner of the intersection of Lindell Boulevard and Old Dixie Highway, be denied per the Planning & Zoning Board's original recommendation of December 20, 1977. This was referred to the Planning'& Zoning Board by Council at its January 9th meeting. Council, at its meeting on February 27th, decided to defer this item until tonight. Mr. Sanson moved that Council sustain the recommendation of the Planning & Zoning Board, seconded by Mr. Chapin. Upon roll call Council voted as follows: Mr. Chapin - Yes; Mr. Randolph - No; Mr. Sanson - Yes; Mr. Weekes - No; Mayor Scheifley - Yes. Said motion passed with a 3 to 2 vote. Before roll call on the motion the following discussion was had. Mr. Weekes stated that it is well known that Council has a dilemma on its hands and everybody concerned would like to see this piece of property improved; the problem is that nobody wants to see it zoned commercial. He stated that Mr. Chapin proposed a possible solution to the dilemma, which may or may not be a viable alternate. Mr. Weekes suggested to rezone the property to General Commercial at this time and then when Council reviews the Land Use Plan again later in the summer, zone it back to Multiple Family at that time. This would give the applicant a hiatus in which he could apply for his permit, make the necessary improvements, and, then six months from now, rezone it back to Multiple Family. Mr. Chapin stated he feels that the applicant wants to im- prove his property, enclose it, to beautify it and he is frustrated in his efforts to do so. He sincerely believes that there is an opportunity for the Board of Adjustment to consider this a hardship. This property was built before there was probably zoning; the zoning came in and made it residential, the applicant has been successful in his business and should have the right to expand it, make it better and less than an eyesore that someone has alleged that it is. If by implication that it is not thought feasible to permit expansion of a non-conforming use to which the zoning code doesn't speak, if Council may have to consider a policy change, or if that can't be resolved, then at that point, if the remedy he has suggested is not successful, he would have to vote to permit the applicant to operate his property. However, he is not prepared to vote for it at the detriment of the area and set a zoning precedent. Mr. Chapin stated he appreciates Mr. Weekes' feelings in trying to achieve the purpose he is but he thinks that is a little more circuitous than his recommended method - 12 - 3/13/78 of procedure. Mayor Scheifley noted that it is his understanding that the Boca Raton City Council is taking their Board of Adjustment to court for such rulings. Mayor Scheifley asked Mr. Chapin if he could tell him the difference between their court case against the Board of Adjustment, where they have gone overboard in defining hardship and granted variances, to the extent that the Boca Council is going to take their own Board of Adjustment to Court? Mr. Chapin stated that once the Board of Adjustment has rendered a decision the only appeal from that decision is within 30 days by the majority of this Council to a court of law, Palm Beach Circuit Court. Based upon the preliminary votes on this issue that have come up in the past, he feels confident that a majority of this Council will not vote to appeal the decision of this community's Board of Adjustment. It has never, to his knowledge, done so in the past and it has relied on its wisdom in Council in those decisions. He stated he feels confident there would be no appeal because he knows Mr. Randolph has spoken on this issue, Mr. Weekes has spoken well on this issue and he certainly would not vote to appeal the decision of the Board of Adjustment. Mayor Scheifley asked the City Attorney if he is in a position to give Council an opinion as to whether the Board of Adjustment has jurisdiction. The City Attorney stated that the Assistant City Attor- ney has indicated to Mr. Chapin that he has begun research on the question; therefore, he is willing to reserve judgement on this until the Assistant City Attorney has completed his research. There is some distinction under the ordinance whether or not the prohibition against the use variance would also apply to a non-conforming use. The City Attorney stated that he is inclined to think that the pro- hibition would apply but he is willing to have it fully researched and report back to Council. Mr. Randolph stated that his only question is, if Council sustains the recommendation of the Planning & Zoning Board and the applicant applies for a hardship hearing before the Board of Adjust- ment, under what basic auspices would the applicant substantiate his hardship? Mr. Randolph stated that it appears that the hardship is one that is questionable; Council has just gotten behind the Board of Adjustment not too long ago about questionable rulings so if it~ can, in fact, be determined a hardship, then this would resolve it and he would agree with Mr. Chapin. Mr. Chapin stated that from his opinion only, when a man builds a property under a certain use and there is no zoning commercial, he builds a commercial establishment; the town comes along and zones this property residential, through no fault or action of his,' which puts a crimp in his style of operation of business, that, and that of itself, is a hardship which permits him not to carry on his busi- ness in a proper diligent fashion. It is not a self-imposed hardship, which is not permitted, it is something that is imposed upon him by the town and that is the nature of the hardship. Mr. Chapin stated that as to precedential value, the decision of the Board of Adjustment has none; it is on a case by case basis. Mr. Weekes stated that he is content to let it go this route but if the Board of Adjustment, in its wisdom, determines that it has no jurisdiction or fails to consider this a hardship and grants the relief, he intends to try to seek the support of the majority of Council to take the tact he earlier suggested. Mr. Sanson stated that he tried to remember some of the things Council has discussed over the last couple of years and come up with two things, (1) the Sail Inn - all they wanted to do was build on a storage area which would have infringed upon new setback limits that's been imposed by new zoning codes; it was firmly determined by the City Council and, basically, by everybody else that that's the way it was and he, therefore, relates that case to this; (2) the other - 13 - 3/13/78 and more recent is the argument that was held on the rezoning of the car dealership next to Tropic Bay; Council supported what was done on the basis that in any expansion into the gentleman's area would have been an expansion of a non-conforming use and, therefore, would not be permitted when Council rezoned this land over to residential. Mr. Sanson stated that he thinks Council has opened up a pandora's box and by the comments and directions that have been made from this Council so far to go this route, which sort of directs the Board of Adjustment to take under advisement and them understanding that certain members of the Council are very sympathetic to this person, is going to be hard for them to vote against this, perhaps, in good faith and judgement. Mr. Sanson stated that if they decide not to do it, he will attend that meeting to listen to all arguments, but he probably would come back, in good faith, to seek the majority of Council to fight their decision, if they allow the applicant to do it. It would not be in the best interest of this town to see decisions of that nature start to be made because almost every single store and commer- cial facility now on Federal Highway and Atlantic Avenue are non- conforming for one reason or another. Mayor Scheifley asked one of the owners if he could make those repairs for a price that is 10% of the reproduction cost of the building? The owner of the property stated that it's 10% of the assessed value of the building and the assessed value of the building is approximately $38,600. He stated that the problem is that they have offices inside the building and water is leaking quite vigorously down into the upper and lower offices, the ceiling and walls are buckled and it's in need of repair. Just the roof alone is going to run close to $4,000 because the whole roof is going to have to be done; it was aged and partially worn but this last wind took all the gravel off, blew one of the doors in, blew a couple of windows out, it damaged a couple of cars, and it took a big quartz light and blew it off the building. He stated that if he does go ahead and make his repairs, he is in violation of the City's code plus the building needs painting and it does need landscaping. He stated he is proud of their facility but they are not proud of the way it looks; he stated he can care less about the zoning - he came to the City with a problem and would like for them to resolve it. Mr. Sanson asked the owner when did he actually purchase the property; he replied three years ago. Mr. Sanson stated that when the owner purchased the property it was zoned residential and Mayor Scheifley asked when was the building built. The owner stated it was in 1960, but the property was purchased in 1956. Mr. Manafo, 1378 Audubon Blvd., President of the Tropic Palms Homeowners Association, Delray Beach, stated they are more concerned with protecting that neighborhood from setting a precedent for commercial zoning. The issue on the floor, as far as they are concerned, is by rezoning this commercial, Council is setting a precedent for that area to go commercial. Mr. Sanson stated that the ordinance addresses itself to the fact that a man could only do up to 10% of the replacement value but it does not say that he can't do it in one week and then do another 10% in the second week, there is no time limit, Mr. Sanson stated that he feels that there is a good chance the entire street would become commercial, if this is rezoned, and would, therefore, vote to sustain the recommendation of the Planning & Zoning Board. Mr. Chapin stated that if Council votes on this they do so at the applicant's potential danger and that, as he has stated earlier, he feels that Council should allow him to pursue other avenues of remedy and he would not vote for this until those have been exhausted. If they have been exhausted without success then he would support it and this is his position and to force a vote on this is a mistake. - 14 - 3/13/78 30.1 Mr. Weekes stated that if cohncil sustains the recommendation of the Planning & Zoning Board and Mr. Svitak goes to the Board of Adjustment and they refuse to hear the case, then he can't come back for a year. The City Attorney noted that it's going to require the per- mission of the City Council in any event because the 60 day period is up. The majority of the City Council can waive the time limitation in the ordinance as per a new rezoning request. At this point the roll was called. 10. The City Manager recommended that Council authorize payment of the bills. Mr. Sanson moved that Council authorize payment of the City's bills, seconded by Mr. Weekes. Said motion passed unanimously. General Fund ............. ..... $373,182.30 Cigarette Tax Fund ............... 19,122.50 Utilities Tax Fund ............... 115,990.00 Beach Restoration ............... 97,875.00 Fed. Public Works Fund ............. 223,506.10 Water & Sewer Fund ............... 251,001.39 Mr. Randolph moved, at 8:55 P.M., for the adjournment of the meeting, seconded by Mr. Chapin. Said motion passed unanimously. 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 March 13, 1978 which minutes were formally approved and adopted by the City Council on ~~/~ ~ ~ /~/7~ . y 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. - 15 - 3/13/78