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HomeMy WebLinkAboutMinutes Council 082696CITY COUNCIL SPECIAL REGULAR MEETING CITY OF PALM BEACH GARDENS AUGUST 26, 1996 The Special Regular Meeting of the City Council of the City of Palm Beach Gardens, Florida, was called to order by Vice Mayor Furtado at 7:30 P.M. in the Auditorium of the Palm Beach Gardens High School, 4245 Holly Drive, Palm Beach Gardens, Florida. ROLL CAT,L The City Clerk called the roll and present were Vice Mayor Furtado, Councilwoman Monroe, Councilman Jablin and Councilman Clark. Mayor Russo arrived at 8:40 P.M. PUBLIC HEARINGS RESOLUTION 100, 1996 Consideration of Approval Granting a Conditional Use for the Installation of Three, 363 -foot Communication Towers. Attorney Gary Smithwick explained that Attorney Royce had distributed a handout of an affidavit prepared by a Washington, D.C. attorney, Mark Lipp, authority on FCC regulations in determining where radio stations could locate towers. The handout included a map showing in particular the areas where WTPX was constrained from placing a tower. The affidavit was objected to on the basis that it was hearsay. City City Council Special Regular Meeting 8/26/96 PAGE 2 Attorney Baird commented that this was an Administrative Hearing and hearsay testimony could be considered by the City Council but could not form the basis for reaching a conclusion as to a fact or the truth of a fact unless it was independently corroborated by other factual evidence. Attorney Smithwick was sworn in by City Attorney Baird and stated that everything he had said had been the truth to the best of his knowledge and belief. Attorney Fields verified through Attorney Smithwick the fact that the two radio stations with which WTPX would conflict were based in Ft. Lauderdale and Coral Gables; and that the concept of short spacing was allowed in some cases when two stations were closer to each other than the FCC rules otherwise permitted. Attorney Fields presented a graphic of the original usable area identified by Miss Dolan at the last meeting and received verification from Attorney Smithwick that the applicant had applied for short spacing north of that area within the space permitted by the FCC, and that the Lake Park area was outside the permitted short spacing area where there would be interference with other stations. County Commissioner Karen Marcus stated that the FCC City Council Special Regular Meeting 8/26/96 PAGE 3 had informed her staff that unless formal application had been made they could not provide information as to whether or not that application would be denied, and questioned how this information had been obtained. Attorney Smithwick explained that no application had been made for the Lake Park site because it would be a useless act since it would be denied. Attorney Royce requested the affidavit be made a part of the record. Attorney Royce distributed copies of a letter he had received from the MacArthur Foundation regarding a commitment from the owner of the property located between the tower site and Palm Beach Country Estates. Dale Smith of the MacArthur Foundation had agreed in the letter to recommend to the Foundation's Board of Directors that upon approval of this application that a restriction be imposed on that property prohibiting removal of trees and vegetation so that it would remain in its natural state subject only to the access road to the tower site and the possibility of a proposed public road through the property, currently known as the Donald Ross Extension. Attorney Royce provided a photograph depicting the area. An objection was made by Attorney Fields that Attorney Royce was giving testimony about City Council Special Regular Meeting 8/26/96 PAGE 4 the exhibit he had submitted, which was not the procedure outlined for this meeting. Attorney Royce stated that he was finished with his explanation and that he had delivered to Mr. Walton that day a proposed condition of approval that prior to the issuance of the first building permit for a tower, the applicant must obtain and present to the City of Palm Beach Gardens an executed restrictive covenant encumbering the property north, east, and south of the tower site, between the tower site and Palm Beach Country Estates, which would provide that the property remain in its natural state and prohibit removal of trees and vegetation, subject only to the roads mentioned. City Attorney Baird commented that in cases of prior similar covenants offered to the City Council, the City Council had requested review and acceptance by the City Attorney and that the project owner also covenant that the City of Palm Beach Gardens have standing to enforce the covenant as a condition of development approval. Attorney Royce verified that the applicant would be amenable to such conditions. Attorney Royce called Michael R. Ford as a witness, who gave his business address as 8259 North Military City Council Special Regular Meeting 8/26/96 PAGE 5 Trail, Suite 5, Palm Beach Gardens, and stated that he resided in Plat 6 of Palm Beach Gardens, in the neighborhood immediately to the south of the high school east of Military Trail and west of I -95, and had been a real estate appraiser for the past 25 years. The qualifications for the appraisers who would testify were accepted by both Mr. Royce and Mr. Fields. Mr. Ford expressed his opinion that Palm Beach Country Estates properties would not be injured or reduced in value by construction of the proposed towers, which he had concluded after reviewing the site plan for the proposed improvements, visiting the neighborhood, and analyzing sales of vacant lots and houses within Palm Beach Country Estates surrounding a 100 -foot tall BellSouth Mobility tower located within Section P of Palm Beach Country Estates. Mr. Ford further explained that he had not analyzed other sections of Palm Beach Country Estates in order to avoid coming up with misleading results, and explained the differences in Section P compared to the other areas of Palm Beach Country Estates. Mr. Ford stated that Section P was less built up, that it was further from the Donald Ross Road access, that it did not have as many paved streets or houses, that this area might City Council Special Regular Meeting 8/26/96 PAGE 6 be lower and require more fill, and that it might not have as many pine trees as the other sections. Mr. Ford concluded that in general the values of lots and /or houses in Section P would be different from the balance of Palm Beach Country Estates, since it was a substantially less desirable area; that turnpike and I -95 exposure was also a negative; and that overall it would not be a fair comparison to analyze sales in close proximity to the BellSouth Mobility tower and compare them to sales of properties in other sections. Mr. Ford's analysis had revealed that vacant lots closer to the tower had brought higher average prices per lot and per acre, however, paved road frontage had been available. One lot close to the tower had sold for considerably less because it was a lake. Analyses of house sales were lower per square foot near the tower, but were smaller than those away from the tower. Mr. Ford had reviewed a report of sales comparisons within Palm Beach Country Estates previously placed into the record which had been made by Mr. Berman, and explained that Mr. Berman had used sales within Section P and also outside Section P, which Mr. Ford did not believe to be a fair comparison. Mr. Ford also objected to Mr. Berman City Council Special Regular Meeting 8/26/96 PAGE 7 using zero as a sales price when no sales occurred within the quarter -mile radius of the site, and using that to compare to the actual average of the sales price of houses and lots away from the tower, resulting in an indication of a 1000 lower value close to the tower. Mr. Ford reported that he had also reviewed reports which had been placed into the record by Mr. Blavel, appraiser for Palm Beach Country Estates residents, and had visited those sites to further his understanding of those reports, which contained sales to the north of a 300 + -foot tower located in southern Martin County which he described as an apples and oranges comparison to Palm Beach Country Estates and nearby proposed towers. The southern Martin County community contained no separation between the tower and lots, no trees for a tower buffer (verified by photos taken in the area), and was substantially different from the application under consideration. Mr. Ford also commented on a tower near Ibis and one west of Delray Beach adjacent to the new Port Club development and newly approved proposed Town Park Country Club development on State Road 7 at Lantana Road. Mr. Ford stated that his conclusion was that the proposed tower would have no City Council Special Regular Meeting 8/26/96 PAGE 8 adverse effect on the value of homes in Palm Beach Country Estates. Mr. Ford's April 8, 1996 report was requested to become a part of the record. Mayor Russo apologized for being late due to a commitment at another meeting. Attorney Gary Fields, representing Palm Beach Country Estates, verified through Mr. Royce that Mr. Ford's April 8 report had been filed with the City in June or July, and to the best of his knowledge he had used every lot sale within Section P in his analysis. After ensuing discussion, Mayor Russo requested that Mr. Fields confine his questions to Section P since that was the only area covered in Mr. Ford's report. Mr. Ford explained that he had not selected specific lots, but that he had dealt with lots actually sold. Mr. Fields questioned the numbers of lots included in the report for specific years. Mr. Fields questioned Mr. Ford regarding an exhibit of a photograph taken by Mr. Ford and requested that it be entered into the record. Mr. Fields posed a hypothetical question to Mr. Ford in which identical homes were for sale with the only difference being that one had a communications tower approximately 1,000 feet away, to which Mr. Ford replied that he would probably pick the City Council Special Regular Meeting 8/26/96 PAGE 9 house without the tower. Attorney Royce asked Mr. Ford whether he had ever come across any identical properties, to which the response was no, indicating that such a situation was truly hypothetical; and that in conclusion it was still Mr. Ford's opinion that these towers would have no effect on the value of homes or lots in Palm Beach Country Estates. Mr. Royce called Ed Weinberg, Biologist with Kimley- Horn & Associates and Certified Wetlands Scientist, who stated his qualifications and that he would comment on the background regarding the environmental analysis conducted for the project. Mr. Weinberg gave dates of when his first report had been provided and when field visits had been made; described information provided to City consultant Jim Schnelle; described coordination with SFWMD and U.S. Army Corp of Engineers' and described information provided on Sandhill cranes. Mr. Schnelle had requested letters from several agencies, including the U.S. Fish and Wildlife Service. Mr. Weinberg explained that this agency had no jurisdiction over the Florida Sandhill crane, therefore had provided no correspondence. Palm Beach County Resources Management had acknowledged previously that the project was not in an City Council Special Regular Meeting 8/26/96 PAGE 10 unincorporated County area; therefore, the decision would be up to the City whether to proceed with the project. SFWMD did not provide correspondence since their reviews were only performed as a part of a permit application. Mr. Weinberg testified that listed species would not be killed or wounded, and that a condition had been agreed to whereby construction would be halted until any young birds found had left their nests. Discussions with Steve Nesbitt of the Game Commission staff, an authority on Sandhill cranes, had revealed that the Game Commission had no documented impacts of construction towers on Sandhill cranes. Mr. Weinberg stated that the staff report indicated that requirements of the Comprehensive Plan and the Ordinance regarding environmental impacts had been met, and commented that environmental impacts would be less than 15% for the 36 -acre site, while a typical residential development could be expected to impact the site 50% -650, and that there would be no daily traffic. This project would maximize the amount of preservation and minimize the amount of human intrusion. Mr. Weinberg disagreed with information provided by the residents that Sandhill cranes would be affected by the tower, and City Council Special Regular Meeting 8/26/96 PAGE 11 again referred to Mr. Nesbitt's comments that the Game Commission had no documented information that these birds had ever been affected by towers. Mr. Weinberg reported that Mr. Nesbitt had indicated the release area used for endangered whooping cranes included three communications towers. Mr. Weinberg summarized that documented mortality for Sandhill cranes from wires was from a parallel ground wire used with utility power lines which was not comparable to vertical guy wires used with towers; and since the Florida Sandhill crane was not a migrating species, the concern that these birds would be forced to fly during inclement weather and possibly collide with guy wires was not valid. Mr. Weinberg pointed out that the Florida Sandhill crane was not an endangered species, but had been identified as having a thriving population. Mr. Weinberg therefore concluded that the summary contained an incorrect conclusion and that there was no reason to believe that collision fatalities would occur as a result of this project. Attorney Royce verified with Mr. Weinberg that Sandhill cranes were present in this area, the Palm Beach Country Estates area, and the Slough area; that there were no nesting sites identified on the 36 -acre City Council Special Regular Meeting 8/26/96 PAGE 12 tower site during the 1 -1/2 year of studies performed by Mr. Weinberg's company; and that Sandhill cranes did feed in those areas, and could continue to feed on the tower site after construction of the towers. Attorney Fields declined to cross examine Mr. Weinberg in the interest of time since he would be presenting an environmentalist later who would present information. Attorney Fields responded to Mayor Russo that he did not agree with Mr. Weinberg's statements. Attorney Royce explained that Councilman Jablin had requested that Mr. Biby provide answers to questions raised at the last meeting relating to the percentage of tower visibility in views 4 and S. Rocky Biby, Consulting Engineer with Kimley--Horn, responded that in view 4, 150 feet, or 41.3° %, of the tower was visible; and in view 5 (taken on 69th looking west along the canal) 170 feet, or 470, was visible. Mr. Biby also stated that view 5 was taken at 1,200 feet and not at the 2,000 feet required by Code. County Commissioner Karen Marcus thanked the City Council for relocating the meeting and agreed with Mayor Russo that if this matter could not be decided in the time allotted for this meeting that as much time as necessary should be taken in future meetings, City Council Special Regular Meeting 8/26/96 PAGE 13 and requested that the residents exercise patience. Ms. Marcus reported that the County Commission had authorized staff to attend this meeting. A handout was distributed which stated that the mosquito control spray pilot could not spray any closer than a one -mile radius from the towers, and that the only other method of mosquito control was truck - mounted spray units, which were only effective 300 feet downwind from the spray truck, and would therefore have little effect in Palm Beach Country Estates where lots were 1.15 acres or larger and many large lots of vacant land would not be reached. Another handout was a letter from the Director of Palm Beach County Health Unit, who commented on potential health problems and indicated her concerns if continual spraying could not be done. Commissioner Marcus requested that these two letters be entered into the record. Attorney Royce objected that the material was heresay and no witnesses were present to be cross examined. City Attorney Baird offered his opinion that heresay testimony was admissible in these proceedings but that it could not form the basis for a conclusion of fact by the City Council as to the truth of those hearsay statements. The statements would have to be corroborated by City Council Special Regular Meeting 8/26/96 PAGE 14 independent testimony. Mayor Russo indicated that if another meeting was held that all witnesses be in attendance. Mr. Farnsworth testified that there were many studies on bird kills associated with communication towers, stated that he was familiar with the study Exhibit 2H from the book, called the Black Pole Warbler Mortality During Full Migration at a Tower in Southeastern Florida, which indicated that 617 birds were killed in one incident just north of Jonathan Dickenson State Park. Mr. Farnsworth also testified that he was familiar with Exhibit 2 -1 from the book which was a 25 -year study done in Leon County referred to as the Tall Timbers Study, where approximately 42,384 birds of 189 species had been killed over the 25 year period. Mr. Farnsworth testified that he had reviewed several studies regarding deaths of Sandhill cranes from collisions with utility structures such as power lines and towers and had reviewed Exhibit 2 -K entitled Proceedings North American Crane Workshop, which reported that in the Rocky Mountain area approximately 37% of the mortality of that population was due to collisions with power line ground wires. Mr. Farnsworth explained that these birds could not City Council Special Regular Meeting 8/26/96 PAGE 15 distinguish such a thin wire until they were too close to avoid a collision and that this was also applicable to vertical guy wires on a tower. Mr. Farnsworth testified that he was familiar with Exhibits 2L and 2M from the book depicting views of a total of 45 guy wires for this project and expressed his opinion that these would pose a danger to Sandhill cranes flying from their nesting area west of the towers to forage in Palm Beach Country Estates especially during foggy mornings. Mr. Farnsworth explained that collision mortality was much greater in younger cranes, indicating that these birds could learn to avoid certain areas. Mr. Farnsworth testified that studies had indicated towers or power lines would not impact Sandhill cranes if they were located more than one mile away from nesting or feeding areas, and that a few collision deaths could be significant to an endangered species but would not be significant to a wide - spread common species. Mr. Farnsworth indicated that he was not familiar with the towers in the release areas used for whooping cranes, but that the amounts released were too small to draw any conclusions, especially since a portion had been killed by bobcats immediately upon release. City Council Special Regular Meeting 8/26/96 PAGE 16 Mr. Farnsworth testified that slash pines, the predominant tree in the proposed buffer, periodically burned and that those burned out areas would only contain tree trunks, which might not be an effective buffer unless there were other areas of trees left. Attorney Royce questioned whether Mr. Farnsworth had drafted the July 7 letter for Mr. Wolinski, but was familiar with the letter. In response to further questions by Mr. Royce, Mr. Farnsworth testified that the report Closing the Gaps was a planning document intended as a guide to local governments, and that in terms of the expanding the Sandhill crane population that Section 4 extended from St. Lucie County through Martin County and into Palm Beach County to Lake Okeechobee; that if regulatory authorities thought that construction of a tower would cause a problem or result in a taking that they would have the authority to issue a permit or not issue a permit, and that the Game and Freshwater Fish Commission had the jurisdiction to consider habitat and the protection of animals. Mr. Farnsworth indicated that the Loran tower at Jonathan Dickenson State Park was approximately 600 feet high, and that the bird kill at that site had been associated with migrating species City Council Special Regular Meeting 8/26/96 PAGE 17 during inclement weather. Mr. Farnsworth testified that Sandhill cranes were not migratory in the sense of traveling large distances, but did move in a routine daily pattern from nesting or roosting areas to feeding areas. Mr. Farnsworth indicated that he had not written any of the studies in the book but had reviewed them. Mr. Royce stated that his review of the study indicated there had been no Sandhill cranes killed. Mr. Farnsworth testified that the studies he had reviewed indicated that many Sandhill cranes had been killed by power lines; however, none of the studies showed Sandhill crane deaths from power lines in Florida. Mr. Farnsworth testified that the power lines in Palm Beach Country Estates were lower than existing vegetation and that Sandhill cranes tended to fly above vegetation; therefore, only open areas posed a collision problem. Mr. Farnsworth responded to Attorney Royce that any obstructions farther apart than the 6 to 7 foot wing span of a Sandhill crane would allow the bird to fly through, and that there was a probability that Sandhill cranes could learn over time to avoid hazards. Mr. Royce presented photographs showing power lines in places in Palm Beach Country Estates where there were not trees, and City Council Special Regular Meeting 8/26/96 PAGE 18 Mr. Farnsworth indicated he could not testify whether the power lines shown were higher than trees in the distance because of possible distortion due to perspective, and that he had not studied and therefore had no information regarding any Sandhill cranes killed by power lines in Palm Beach Country Estates. Mr. Farnsworth responded to Mr. Royce that he did not prepare the Palm Beach County report regarding a proposed 1,050 -foot tower in the Section 1 Ecosite of the West Palm Beach Water Catchment Area which Mr. Royce indicated had found no adverse effects on water, air, stormwater management, wildlife, vegetation, wetlands, or natural functions of the environment. Mr. Farnsworth responded to Attorney Royce that to the best of his knowledge the County Department of Environmental Resource Management had never opposed construction of a tower because of Sandhill crane concerns since he knew of no tower constructions which had occurred in the Sandhill crane nesting area. County Commissioner Marcus clarified that Mr. Farnsworth had not stated that he opposed the tower but was present to give environmental information and to provide his expertise on the Sandhill crane. After discussion, Mr. Farnsworth clarified that he had not City Council Special Regular Meeting 8/26/96 PAGE 19 prepared the Kevin Irwin Study maps, however he had examined them and was comfortable with their accuracy. Mr. Farnsworth testified that the taller pines on the proposed site were approximately 30 to 50 feet tall and the melaleucas ranged from several feet tall to as much as 35 feet tall, that the Melaleuca trees provided more screening than pine trees. Mr. Farnsworth testified that there was no current law requiring removal of melaleuca in the absence of development. After further discussion of Melaleuca, Mr. Farnsworth agreed that melaleuca trees would provide more buffering if they remained in place. In the interest of time, discussion ensued regarding another meeting to consider this matter possibly for Thursday, September 26, 1996. Councilman Jablin made a motion to recess the Public Hearing to the September 5, 1996 City Council Meeting. Motion was seconded by Councilman Clark, and carried by unanimous 5 -0 vote. Tentative plans were to hold the next meeting for this item on September 26 at the Palm Beach Gardens High School Auditorium if available and if the air conditioning could be left on from 7 P.M. to 11 P.M. At the September 5 City Council meeting the Public Hearing would be recessed again to the time and place City Council Special Regular Meeting 8/26/96 PAGE 20 of the next meeting. ITEMS FOR DISCUSSION ORDINANCE 13, 1995 Councilman Clark made a motion to direct staff to examine Ordinance 13, 1996 - Communication Towers, because of concerns expressed through the City Manager regarding that Ordinance. Councilman Jablin seconded the motion, which carried by unanimous 5 -0 vote. ADJOURNMENT There being no further business to discuss, motion was made by Councilwoman Monroe, seconded by Vice Mayor Furtado, and unanimously approved to adjourn the meeting at 11:30 P.M. City Council Special Regular Meeting 8/26/96 PAGE 21 APPROVAT i 0 OE RUSSO VICE MAYOR LAUREN FURTADO COUNCILWOMAN LINDA Mnu OE COUNCILMAN ERIC JAP� /1 COUNCILMAN DAVID CLARK ATTEST: LI;ZA � KOSIER, CMC, CITY CLERK