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