HomeMy WebLinkAboutMinutes Council 110796CITY COUNCIL
REGULAR MEETING
NOVEMBER 7, 1996
The November 7, 1996, Regular Meeting of the City Council of the
City of Palm Beach Gardens, Florida, was called to order at 7:30
P.M. in the Council Chambers of the Municipal Complex located
at 10500 North Military Trail and opened with the Pledge of
Allegiance to the Flag.
ROLL CALL The Deputy City Clerk called the roll, and the following elected
officials were found to be in attendance: Mayor Joseph R. Russo,
Vice Mayor Lauren Furtado, Councilwoman Linda Monroe,
Councilman Eric Jablin, and Councilman David Clark.
AWARDING OF BIDS
Bond Counsel City Manager Herakovich stated that the City advertised for bids
for Bond Council on October 7, 1996, and they were opened on
October 22, 1996. Mrs. Herakovich stated that she, the City
Attorney and the Finance Director interviewed the top 3 candidates
out of the 8 submitted bids. Staff recommended the City contract
with Moyle, Flanigan to serve as bond counsel for the financing of
the Municipal Complex improvements in the amount of $19,100.
Councilman Clark made a motion to approve the staff
CITY COUNCIL REGULAR MEETING, 11/7/96
recommendation, seconded by Councilman Jablin. The motion
was unanimously carried.
Painting of Burns Road
Community Center and
Racquetball Courts City Manager Herakovich stated that the City advertised for bids
for the painting of the Burns Road Community Center and
Racquetball Courts on September 13, 1996 and opened received
bids on October 9, 1996. Out of the eight bids received, staff
recommended the bid be awarded to the low bidder, Joe Vasquez
and Son, Inc. In the amount of 511,580.
Vice Mayor Furtado made a motion to approve staffs
recommendation, seconded by Councilman Clark. The motion was
unanimously carried.
Annual City Auction City Manager Herakovich stated that the City advertised for bids
for the services for the Annual City Auction on October 25, 1996.
Only one bid was received and opened on November 1, 1996.
Staff recommended that the bid be awarded to Carlin Daniels and
Associates for auction services.
Vice Mayor Furtado made a motion to approve staff's
recommendation, seconded by Councilman Clark. The motion was
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unanimously carried.
ITEMS BY MAYOR
AND COUNCIL Mayor Russo stated that the comments from the Mayor and
Council would be limited to ten minutes.
Vice Mayor Furtado Vice Mayor Furtado stated that the Council discussed the problems
with CB radios and reported that the Federal Government has an
RF Compliance Law. Vice Mayor Furtado reported that the
County has adopted this law and felt that it was important for the
City to do likewise. Vice Mayor Furtado stated that if the City
adopted the Compliance Law, the City would have the authority to
do something about anyone in violation of that law. Vice Mayor
Furtado asked that the City Attorney draft an ordinance to adopt
the RF Compliance Law and also asked that staff report as to
whether the City Codes addressed CB antennas, satellite dishes,
etc. and whether permission must be granted to have these
installed.
Vice Mayor Furtado stated that the City has an opportunity to have
an information kiosk in City Hall at no charge to the City, except
for a telephone outlet. At this information center, any resident
could come into City Hall and pull up information about the City,
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schedules, programs, etc. This could also be accessed by residents
that had home computers, but for those that did not or for visitors
to the area, the information would be readily available. The City
Manager was directed to look into this possibility and report back
to Council.
Vice Mayor Furtado stated that the Recreation Advisory Board
worked on the Park Ordinance and the City Attorney and staff are
now reviewing the proposed ordinance. Vice Mayor Furtado felt
that the City should go one step further by requiring all City
employees working with children to go through a background
check. Vice Mayor Furtado stated that there are a lot of
organizations that utilize the City's fields and Community Centers
and the City has no idea who these people are. Vice Mayor
Furtado felt that this was important because anyone who used the
City's facilities and worked with juveniles should go through some
procedure to screen who are working with these children. Vice
Mayor Furtado stated that she knew there was a cost involved, but
felt that it was important in the protection of the children. Vice
Mayor Furtado felt that perhaps Wackenhut would assist with a
reduced fee as a service to the community. Mayor Russo stated
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that he did not have a problem doing research on this proposal, but
would also be interested in hearing from the various organizations.
The City Council was in agreement for the City Manager to
research the issue and report back to the City Council.
Mayor Russo Mayor Russo reported that he was at a meeting with Riviera Beach
representatives this morning and they were having a Michelle
McGann Celebration on Saturday morning and invited all to attend.
Michelle McGann was a professional golfer. Mayor Russo asked
that any Councilmember who could attend to do so.
COMMENTS FROM THE PUBLIC
CONSENT AGENDA Councilman Clark made a motion to approve the Consent Agenda,
seconded by Councilman Jablin. The motion was unanimously
carried. The following items were approved on the Consent
Agenda:
1. Approval of City Council Regular Meeting Minutes of
9/26/96.
2. Approval of City council Special Regular Meeting Minutes
of 10/10/96.
3. Resolution 155, 1996 - Consideration of Approval to
Support Municipal Competitive Grant Program Funds for
the Enhancement of Emergency Management and Mutual
Aid Programs.
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4. Resolution 156, 1996 - Consideration of Approval to
Support Emergency Management Competitive Grant
Program Funds for the Enhancement of Emergency
Management and Mutual Aid Programs.
5. Resolution 161, 1996 - Consideration of Approval of an
Amendment to the Development Agreement by and
between the City and Daniel Catalfumo.
RESOLUTIONS:
Resolution 153, 1996 Planning and Zoning Director Richard Walton stated that Council
received a copy of a memo written today regarding the amendment
to the Site Plan for Northlake Square authorizing the construction
of a 169 seat restaurant. At the last Council meeting the Council
requested the petitioner provide additional landscaping, eliminate
the walkways along the east and west rear portions of the building,
upgrade the rear elevations and the petitioner has also changed the
elevations to show the striped awnings as discussed with the
Council at the last meeting. Mr. Walton stated that the site was
originally approved with 9 foot parking spaces, as allowed by
Code, however, it does require additional landscaping. Mr. Walton
also pointed out that any 9 foot space has to be doubled striped and
stated that would have to be corrected. Mr. Walton stated that the
petitioner was required to submit a plan showing 10 foot spaces to
show that the parking fit on the site, however, it was submitted
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after the staff report was written. Mr. Walton reviewed the staff
report submitted to Council. Mr. Walton stated that staff had
problems with the parking, stating that the restaurant did not have
the number of required parking spaces for the number of seats
proposed for the restaurant, and staff recommended that the
number of seats in the restaurant be reduced. W. Walton stated
that the plan met the Landscape Code.
Councilwoman Monroe stated that the Council has been firm on
the requirements of parking spaces in the past and stated that she
was concerned with smaller parking spaces. Councilwoman
Monroe stated that she felt uncomfortable with the nine foot spaces
and would only vote for Resolution 153, 1996, if the parking
spaces were ten feet. In response to Councilwoman Monroe, Mr.
Walton stated that with the original approval there is a Unity of
Title, providing for more flexibility for parking.
Sarah Lockhart of Urban Design Studios stated that there is one
property owner. Councilwoman Monroe asked if the property
owner would have the right to speak for the lessees regarding a
shared parking agreement. City Attorney Tom Baird stated that the
property owner had the right to do that, however, did not know if
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Sarah Lockhart had authorization to speak for the owner. Ms.
Lockhart stated that this was originally approved with 9 -1/2 foot
parking spaces and built. Ms. Lockhart stated that the proposed
site plan shows 60% of the site already constructed, meaning the
perimeter buffers are in, the utility features are in, the access points
are in and at some point in time the waiver granted by Council
becomes vested on the property even though there might be
changes that occur to the site plan. Mayor Russo stated that the
originally approved restaurant was smaller, and the site included an
office building, and pointed out that the request for a larger
restaurant brought new issues to be considered. Mayor Russo did
not feel that the Council granted a waiver with the original
approval, and felt that this was a whole new project. Ms. Lockhart
stated that the developer would rather go with a shared parking
agreement than a reduction in the number of seats for the
restaurant. Councilman Clark stated that the Council would like to
see 10 foot parking spaces on this site and shared parking with the
other portions of the site. Ms. Lockhart stated this was an evening
operation and there would not be a conflict with Pep Boys
regarding parking.
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Vice Mayor Furtado asked that the 2 parallel parking spaces on the
plan be eliminated.
Councilwoman Monroe suggested that the plan indicate that the
two parking spaces at the southwest corner and the two parallel
parking spaces will be filled in and become landscape islands. Ms.
Lockhart stated that the 10 foot parking spaces reduces the
landscaping. Councilwoman Monroe stated that her interpretation
of what was happening was to use the current parking plan, even
though the dimensions will be slightly off, however, use the
landscaping plan for the larger parking spaces.
Mr. Walton suggested an additional condition that would say that
the amount of landscaping on the landscape plan must be included
when the plan is modified for 10 foot spaces. Mr. Walton stated
that the City Forester did not feel the landscape plan would not be
modified enough to require a change.
Ms. Lockhart showed the amendments to the rear elevations that
incorporated the thoughts of the City Council. The rear elevation
has been amended by added additional architectural treatments
which would hide the down spouts and utility type features.
Councilman Clark suggested a new Condition of Approval be
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added to read as follows: "All parking stalls on the restaurant site
shall be 10 feet by 18 feet 6 inches in dimension. The amount of
landscaping shown on the existing landscape plan dated 10/23/96
shall not be reduced. The applicant shall provide any additional
parking spaces required by Code off site through a shared parking
arrangement with Pep Boys."
Mayor Russo stated he would feel more comfortable if the plan
was amended, as well as the Resolution, and be placed on the
Consent Agenda at the next meeting. Mayor Russo felt the records
of the City would be more clear if the approval was done when the
plan was amended.
Councilman Clark made a motion to approve Resolution 153,
1996, with the addition of Condition 6. The motion was seconded
by Vice Mayor Purtado and unanimously carried.
PUBLIC HEARINGS:
Resolution 100, 1996 Mayor Russo stated that the Public Hearing for Resolution 100,
1996, was advertised to begin at 8:00 P.M. and, therefore, the
agenda would be reordered to accommodate that legal requirement.
Mayor Russo declared the Public Hearing open. Mayor Russo
stated that the Council has taken public comments and this meeting
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would complete the process. Mayor Russo stated that since the last
public hearing additional information had been provided to the
Council. Mayor Russo stated that all interested parties had their
ability to ask any questions regarding the report from City staff.
After those questions, Mayor Russo stated that there would be time
for summation, giving 15 minutes to Attorney Fields, 15 minutes
to Commissioner Marcus, and 30 minutes to Attorney Royce.
Attorney Fields stated he did not know that a time limitation would
be set for summation and felt that he would need approximately 30
minutes, Attorney Fields stated that he and Commissioner Marcus'
summations would take approximately 40 minutes. Attorney
Royce stated that he understood the time limitation and has worked
to make his fit the Council's direction at their last meeting.
Attorney Royce asked that the Council keep to the original
schedule. Mayor Russo stated that the original schedule would be
adhered to and asked that Attorney Fields and Commissioner
Marcus adjust their summation to fit the time limitations.
Planning and Zoning Director Richard Walton stated that a site
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analysis was done by the City Engineer and the results of that
required the applicant to amend the application. The northern
tower was 289 feet tall, the middle tower 363 feet tall (unchanged)
and the south tower 288 feet tall. Mr. Walton stated that this
amendment would provide for compliance with the 50% screening
required by Code. Staff included in the staff report the best
available data of the map showing the exotic vegetation in the area
outside of the towers and all requirements regarding exotics. Vice
Mayor Furtado expressed her concern regarding the tower that
remained at 363 feet, feeling that 69th Street was a major roadway
into Palm Beach Country Estates.
Tom Vokoun of Lindahl, Browning, Ferrari & Hellstrom was
sworn in by City Attorney Tom Baird. He stated that a line of
sight analysis was done from the 3 points picked by staff and the
analysis included protracted angles from the supplied information
on the map, as well as the horizon of the trees. Through
mathematical computations the obstructive view of the towers
were computed looking for the half height of the tower. The first
point was done from two places on 69th Drive and the second
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from Donald Ross Road and the third from 149th Place and 150th
Place near 72nd Drive.
Councilman Clark stated that it was his understanding from the
staff report that the line of sight analysis was done using various
angles to get the results. Mr. Vokoun stated that the crew was
instructed to scan the horizon with the instrument a few degrees
horizontally to make sure they were not using the peak or valley of
the tree horizon. It was their professional opinion that their best
judgement was used on the tree horizon.
Attorney Fields, referencing the 3 points being referred to in the
staff report, stated they were the same 3 points that Mr. Walton
referred to. Mayor Russo confirmed that Mr, Fields' statement was
true. Attorney Fields stated it was his understanding that the
applicant had been requested to do their digital analysis from a
total of 6 points, not just 3, and when the City's engineers
rechecked the analysis, they only checked 3 points. Attorney
Fields stated that from the experts that testified from the County
and from Palm Beach Country Estates, he understood that they
checked all 6 points. Attorney Fields felt that from the 6th point, if
the Engineers had check from that angle, the third tower would
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have to have been reduced as well. Attorney Fields requested that
the City Engineer include the other 3 points in their line of sight
analysis. It was pointed out that the City's ordinance requires at
least 3, and 6 were used by the applicant. Mr. Walton stated that
the Engineers used the three points selected by staff.
Attorney Royce requested that the report prepared by the Engineers
be made a part of the record along with the staff report so it would
be clear what was found when the analysis was done on the site.
Attorney Fields stated that he had no objection to those reports
being part of the record.
Mayor Russo stated that Attorney Fields would begin his
summation, followed by Commissioner Marcus and then Attorney
Royce.
Attorney Fields stated that City staff and ordinances set forth the
tests that the applicant must pass in order to have his request
approved. Attorney Fields did not feel that the application was
consistent with the City's Comprehensive Plan, specifically Policy
6.1.5. Lb and 6.1.5.2. Attorney Fields felt that the Council received
undisputed testimony during the hearings that this particular
location is in the very back yard of southeast Florida's largest
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sandhill crane population. Attorney Fields discussed conflicting
evidence presented during this case, and stated that where there
was conflicting evidence, the Council was to look to the most
credible evidence. Attorney Fields stated that the Council had the
right to reject evidence, whether by an expert or anyone testifying
and the right to use their own common sense and experience.
Attorney Fields questioned the credibility of the applicant's
experts. Attorney Fields felt that proof of this was the need to
reduce the height of the towers. Attorney Fields stated that the
City Council only had to use their common sense to decide which
experts were to be believed. Attorney Fields stated that although
the experts from the applicant testified that only a small portion of
the land is taken from the habitat of the sandhill cranes, the bottom
line was a tremendous flight area was removed. Attorney Fields
stated that his expert testified that moving these towers one mile
away from this site would prevent most of the predicted deaths of
some of the sandhill cranes.
Attorney Fields did not feel that the application met the conditions
of the City's Zoning Codes, particularly the Communication
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Towers Ordinance, specifically Section 159.088.E1. Attorney
Fields did not feel that the proposed buffer was in compliance with
City codes and stated that the applicant was depending on the
buffer that was located off site. Attorney Fields stated that there
were problems with the deed restrictions with the MacArthur
Foundation for the buffer, including the proposed road through the
buffer. Attorney Fields stated that Palm Beach Country Estates
would be virtually stuck with a road through their back yard
because no other developer would want to use the land around the
tower site. Attorney Fields stated that the City would be protecting
nuisance trees by approval of the proposed off -site buffer.
Attorney Fields asked who would replace the trees in the proposed
off -site buffer if there was a fire or for some other reason they had
to be removed because of disease, etc. Attorney Fields stated that
any such deed restriction was void, unenforceable and illegal. The
City staff report referenced numerous provisions of the City's
Comprehensive Plan and Land Development Regulations and
required the removal of nuisance and invasive exotics. Attorney
Fields stated that under Florida Law, restricted covenants are not
enforceable if they are contrary to public policy or if they conflict
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with express law.
Attorney Fields stated that in Subsection A -D of the City's
Communication Tower Ordinance it required the City to assess the
visual affect of the towers on surrounding land uses. Attorney
Fields stated that it helped to get a look at the towers with no visual
analysis slanting line. Attorney Fields felt that the applicant failed
the test for this section of the City's code. Attorney Fields felt that
the applicant failed because the impact was not reasonable or
compatible with the surrounding community. Attorney Fields
stated that the City's Communication Towers Ordinance stated that
the towers shall not adversely affect the adjacent residential or non-
residential properties. Attorney Fields stated it is known that the
towers would adversely affect the adjacent non - residential
property, the Loxahatchee Slough. Attorney Fields felt that the
location of the towers would adversely affect the property values of
the properties located in Palm Beach Country Estates, proving that
the applicant failed this requirement as well. Attorney Fields
pointed out differences in experts testifying for the applicant and
those for Palm Beach Country Estates and Palm Beach County.
Attorney Fields stated that the Telecommunications Act of 1996, in
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the words of our Congress, urged all municipalities to find ways to
properly place towers. Congress made it clear that they did not
want the towers located in residential areas. Attorney Fields stated
that this application was not about the needs of the community, but
was made for the money to be made from the leasing space on
these towers. Attorney Fields felt that the applicant failed all tests
required by the City's Codes and asked the Council to look at the
credibility problems of the applicant's experts. Attorney Fields
asked on behalf of the residents of Palm Beach Country Estates
that the City Council deny the applicant's petition.
Commissioner Karen Marcus addressed the Council and stated that
there were specific legal guidelines for the Council to deny the
petition before them. Commissioner Marcus reminded the Council
that the installation of these towers would seriously impede the
aerial spraying for mosquito control in Palm Beach Country
Estates. Commissioner Marcus discussed the non - conforming use,
referencing Chapter 159.088, stated that residential could not be
located that close to a tower, creating a serious non - conforming
use. Commissioner Marcus stated that if all 6 points were included
in the City Engineer's line of sight analysis it would have shown
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that these towers could not meet the 50% rule. Commissioner
Marcus discussed environmental issues and felt that the applicant
did not meet the requirements of the City's Codes regarding the
protecting environmental requirements. Commissioner Marcus
stated that the site is part of the Loxahatchee Slough and the
County was still interested in purchasing the property.
Commissioner Marcus pointed out that if the County was still
interested in purchasing the site it meant that it was of significant
environmental quality and would be damaged if the towers were
placed on the site. Commissioner Marcus felt that the need for the
towers was questionable and pointed out that there were plenty of
tower applications in northern Palm Beach County and asked that
the Council consider the community of Palm Beach Country
Estates. Commissioner Marcus pointed out that co- sharing was
another requirement of the City's Communication Tower
Ordinance. Commissioner Marcus stated that the need for these
towers was not there based on the number of towers already in
existence and the number of applications for new towers with Palm
Beach County. Commissioner Marcus encouraged the Council to
deny this petition, stating that the background has been given to the
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Council to do so and because of the flawed testimony by the
applicant.
Attorney Royce, representing the applicant, addressed the City
Council stating that his client started this process over two years
ago, spending over $200,000 complying with the City's ordinances
and the requests of staff. The applicant felt that his application met
the intent of the City's Communication Tower Ordinance.
Attorney Royce stated that at the time the applicant applied for the
towers, staff was preparing a new ordinance to regulate towers and
over a period of many months the ordinance was developed. The
City Council discussed many aspects of towers and agreed to
certain standards and criteria. Attorney Royce discussed the
amendments to the applicant's original plans because of the
adoption of the Communication Tower Ordinance to fully comply
with guidelines. When a further engineering study was done by the
City Engineer, the applicant amended the application, reducing the
height of two towers in an effort to fully comply. Attorney Royce
stated that as pointed out in the City's own staff report and in the
Lindahl report, the applicant meets the height and ratio
requirements. The Planning and Zoning Commission very
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carefully considered the application and recommended approval.
Attorney Royce asked that the City Council take that
recommendation and approval into consideration.
Attorney Royce stated that the Council swore to uphold the laws
when they took their oath of office and must base their decision on
substantial competent evidence presented at the hearings. The City
Council decision cannot be based on hearsay such as letters,
requests, reports written by somebody, somewhere who did not
testify at the hearings. Attorney Royce pointed out that the City
Attorney informed the City Council at the beginning of the
proceedings that they could not base their decision on hearsay and
it was not the proper foundation for a decision. Attorney Royce
stated that the City Council could not base their decision on how
many people like the towers or how many do not like the towers,
and the courts have stated that these decisions are not a popularity
contest. Attorney Royce pointed out that the Council's decision
should not be based on political considerations and to do so would
be improper. Attorney Royce asked the Council to follow the law
and their legal duty.
Attorney Royce stated that the site for these towers was in a remote
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area and would be seen by the fewest number of people the
smallest amount of time. Attorney Royce stated that the provision
in the City's ordinance about sharing of towers was attempt to be
made to avoid a proliferation of towers and could best be served by
putting the towers in the most remote area. Attorney Royce
referenced certain testimony which stated that the towers were in a
remote area that would affect the least number of people. Attorney
Royce pointed out that his expert witness testified that there were
no sandhill cranes nesting on the proposed site and he was not
cross examined by the opposing sides. Attorney Royce stated that
Mr. Farnsworth, a witness produced by the County, testified that he
read a lot of reports, all hearsay because he did not write the
reports, but he did not know of one sandhill crane killed in Florida
because of towers. Mr. Farnsworth also testified that to the best of
his knowledge, his department had never opposed a tower in Palm
Beach County. Attorney Royce pointed out that the expert witness
from the County testified that the mosquito spray would drift up to
3000 feet.
Attorney Royce refuted various testimony presented by witnesses
from both opposing sides and pointed out that it was admitted that
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Palm Beach County had allowed the construction of towers within
100 feet of residential areas. Attorney Royce also pointed out that
Palm Beach County allowed a tower to be constructed on the south
edge of the City's limits on Military Trail approximately 100 feet
from a residential area.
Attorney Royce stated that the opposing sides stated that his
applicant had a back -up site, and pointed out that he had to because
this process has taken so long to accomplish their purpose and
could have endangered their license. Attorney Royce stated that
approval of these towers would prevent a proliferation of towers
throughout the Palm Beach Gardens community.
Attorney Royce stated that the case came down to politics and fear.
Attorney Royce also encouraged the Council to use common sense
and experience in making their decision. Attorney Royce pointed
out various towers located throughout the City within a close
proximity of residential areas that have not had complaints by
residents. Attorney Royce felt that Palm Beach County and the
residents of Palm Beach Country Estates did not want this property
used and would object to any application for this site, whether it
was towers or homes. Attorney Royce stated forced preservation
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would be an illegal taking and felt that non - residents would force a
legal decision so that City residents could become liable for the
denial of a reasonable use on this site.
Attorney Royce stated that the restricted covenants agreed to by the
MacArthur Foundation was the best chance to preserve the land. It
was further pointed out that if a road was to go through this
proposed buffer area it could only be done if the City agreed to it
and the County agreed, therefore, the Council had the power to
totally protect and preserve this tract of land. The City Council
would also have the power to determine the fate of the exotics
located within the buffer area and can be made a condition of
approval. Attorney Royce felt that the Council should seize the
opportunity to preserve this land and stated that if the Council did
not approve this reasonable use of the site then the opportunity to
preserve the land could be lost.
Attorney Royce urged the City Council to consider what was
before them, what was their duty and to follow the laws, standing
up for the City's ordinance and to allow a reasonable use by
approving this application. City Attorney Tom Baird stated that
the City Council may rely on hearsay testimony, but may not base
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their decision exclusively on hearsay testimony. Attorney Baird
stated that the City Council could rely on hearsay testimony to the
extent it coorborates or supports another testimony which is not
hearsay. Attorney Baird stated there had been reference made to
experts relying on hearsay, however, Attorney Baird stated experts
may rely on hearsay testimony and use it in formulating their
expert opinions. Attorney Baird pointed out that most experts'
opinions are based on reports that they read or receive from other
experts.
Attorney Baird stated that the responsibility of the City Council
was to make a determination as to the application and the initial
burden for the applicant was to have demonstrated that the
application was consistent with the City's Comprehensive Plan. If
the City Council believed that the testimony was such as to be
consistent with the Comprehensive Plan, then the burden shifts and
the responsibility was for the Council to determine that there was
competent, substantial evidence to support the decision as to
whether or not to approve this application. Attorney Baird pointed
out that the City Council was the trier of fact and of law in this
proceeding and must consider and weigh the facts and creditability
of the witnesses presented. Attorney Baird stated that to the extent
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the Council could weigh the law, then they should, as it was
presented to the Council and render a decision.
Mayor Russo asked if anyone had any questions of staff. Vice
Mayor Furtado stated that from the tower site, east, where it
showed the exotic plantings, she questioned the amount of area
involved and what the distance would be. Rich Walton, Planning
& Zoning Director stated that the distance was approximately 1400
feet from the tower site.
Mayor Russo stated that he would be keeping the Public Hearing
open for now in case the Council had any questions of the
Attorneys, and asked for comments from the Council.
Vice Mayor Furtado stated that Attorney Royce spoke of lots and
homes a quarter of a mile to a half mile away from the towers and
the difference of the prices and values. Vice Mayor Furtado stated
that if you compare a home of 1600 square feet that was not in
good condition to a home that was 2400 square feet with a lot of
amenities in good condition on a bigger lot, it was obvious that the
value would be greater. Vice Mayor Furtado felt that some of the
information, therefore, was a little fiizzy and asked for
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clarification. Mayor Russo stated there was clarification at the
time of the testimony, and pointed out that Attorney Fields showed
one listing and Attorney Royce pointed out that the area he showed
was closer to the turnpike. Mayor Russo pointed out that the
Council had to rely on the information presented by both sides.
Councilwoman Monroe stated she was concerned with the deed
restriction and its intent. Attorney Baird stated that at this point,
the Council is beyond asking questions of the witnesses and thic
was a time for the Council to deliberate upon the evidence and
reach a conclusion.
Councilwoman Monroe stated that she was looking for further
information regarding the condition that would become a part of
this approval that applied to the restricted covenant and the
management plan. Mayor Russo stated that this was a decision for
the City Council as to whether they would vote for this application
if there was a deed restriction and a management plan and
whatever Councilwoman Monroe would vote for would need to be
a part of the approval process.
Councilwoman Monroe stated that she had concerns as this was a
voluntary item that the applicant brought forward to the Council.
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Councilman Clark stated that this petition has been a very
difficult one for a variety of reasons. Councilman Clark
stated that people know that he has relatives that live in
Palm Beach County Estates and they opposed the
communication towers application. Councilman Clark
stated that he has struggled with this decision, reviewed the
ordinance and thought carefully about the evidence
produced. Councilman Clark felt that the applicant
comformed to the requirements of the ordinance on all but
one point, and that the residents had done a tremendous job
to ensure that the City had an application that conformed
with the City's ordinance
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COUNCIL REGULAR MEETING, 11/7/96
to the fullest extent possible, - -for example, when it was found that
the heights were incorrect. Councilman Clark did not think that
the profit motive or the need for the tower was relevant to the
determination as to whether the applicant had complied with the
ordinance. Councilman Clark stated that staff has determined that
the application was consistent with the City's Comprehensive Plan
and that he agreed with this assessment. The two key issues under
the ordinance are were whether the towers adversely affected the
adjacent residential and non - residential properties and whether they
were compatible with those surrounding residential and non-
residential uses. Councilman Clark stated that the problem he saw
in saying that this application failed because it adversely affected
adjacent residential properties was that that determination would
be based largely on issues such as a claimed negative impact on
property values, which was difficult to evaluate. Councilman
Clark stated that the Council has already addressed in the
ordinance a minimum setback requirement from residential areas,
with which the application complied.
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CITY COUNCIL REGULAR MEETING, 11/7/46
As to adjacent non - residential areas such as the Loxahatchee
Slough, a good argument could be made that the use was a way of
segueing from residential areas and that it impacts this area less
than would a residential use on the site. Councilman Clark stated
that it was his position that on balance, since this application
conformed to the City's ordinance, except that the application was
too intense in that it requested 3 communication towers.
Councilman Clark stated that 1 tower would be acceptable and that
he had no preference to which one of the 3 communication towers
was built.
Councilman Jablin stated that the two points that bothered him the
most was the adverse affects adjacent to residential and the
surrounding properties. Councilman Jablin did not feel the
applicant proved that the surrounding properties would not be
affected, however agreed the applicant should not have the ability
to build 3 communication towers on this site. Vice Mayor Furtado
stated that she had a special interest in the possible mosquito
spraying problems. Vice Mayor Furtado stated that the fact that the
County was still interested in purchasing this site was significant,
and felt that 3 communication towers was too intense for this site.
Vice Mayor Furtado stated she was concerned with the exotics east
of the towers and disagreed with the line of sight analysis because
of the points that were used. Vice Mayor Furtado stated she was
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CITY COUNCIL REGULAR MEETING, 11/7/96
also concerned that the applicant had other options in site selection.
Vice Mayor Furtado stated that the City's ordinance encouraged
shared space on towers and during all the testimony it was been
revealed that there are many towers in the area. Vice Mayor
Furtado stated that based on all these concerns, she would vote to
deny the petition.
Councilwoman Monroe stated that she agreed with Councilman
Clark's comments, however, stated that her major concern was the
type of vegetation used to buffer the residential area from the
towers. Councilwoman Monroe expressed concern in accepting a
condition that would require the applicant to leave the buffering
vegetation in place for protection to the residential area.
Councilwoman Monroe pointed out that the condition included
wording that stated "the covenant shall provide and the property
shall remain in its natural state pursuant to a City approved
management plan and subject only to an access road to the tower
site and a possible future public road....... ". Councilwoman Monroe
stated she was concerned with a City approved land management
plan leaving an opening and some major disputes as to what it
meant. Councilwoman Monroe stated that she would be more
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CITY COUNCIL REGULAR MEETING, 11/7/96
comfortable if the condition was reworded to read "City approved
land management plan which shall provide for the phased
elimination of non - native vegetation and new planting of native
trees ". Councilwoman Monroe stated that she could never approve
this petition with a condition requiring all vegetation to be left
alone. Councilwoman Monroe also felt that the intensity of the
proposal was too great, feeling that only 1 tower would be
appropriate for the site.
Mayor Russo stated that the bottom line of this decision was that
the City Council had to make a factual determination. Mayor
Russo stated that once the factual determination was made, and
someone is not happy with the decision, they would have the right
to take it to a court of law. Mayor Russo stated that the City has an
applicant that has spent over $200,000 complying with the City's
ordinances. Mayor Russo stated that going out to This there is a
tower that he was never aware of before and noticed that people are
buying very expensive homes that are in closer proximity to that
tower site then the proposed site would be from residential units.
Therefore, Mayor Russo did not feel that the arguments for the real
estate values seemed pertinent. In order to move the petition
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CITY COUNCIL REGULAR MEETING, 11/7/96
along, Mayor Russo stated he would be willing to approve the
smallest tower of 288 feet in height and include the language in the
condition as stated by Councilwoman Monroe. Mayor Russo
stated he would like to include certain criteria to ensure the
protection of the residents. Mayor Russo stated all the above
included would allow him to vote for this petition. Attorney
Royce stated that he would be willing to agree to what was
suggested by the Council. Mayor Russo stated that included in the
condition regarding the buffer, he would also like language to state
what would happen if the buffer area was destroyed because of fire
or disease and had to be something that was enforceable. Vice
Mayor Furtado stated that she was willing to work out a
compromise with the smallest tower and eliminate the other two
towers from the application.
Councilwoman Monroe stated that the City also has an ordinance
regarding non - invasive type plants and directed that staff look at
that section of the Code when rewriting the condition for the buffer
area.
The City Attorney and staff were directed by the City Council to
incorporate Council comments and findings of fact into the
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CITY COUNCIL REGULAR MEETING, 11/7/96
resolution and have the resolution brought back to the City Council
for their consideration.
Attorney Baird stated that the Council should finish their
deliberation and discussion regarding the amendments to the
ordinance and ask staff to incorporate the consensus of the Council
and the conclusions as to the conditions. The resolution would be
brought back to the City Council for their consideration.
There was consensus from the City Council to amend the
resolution to include the approval of one communication tower of
288 feet in height as proposed in Phase I and that the condition
regarding the buffer language be included regarding removal of the
non - invasive vegetation and the planting of new vegetation
indicating a required form of maturity.
Mayor Russo declared the Public Hearing closed. Councilman
Clark made a motion to direct staff and the City Attorney to
prepare Resolution 100, 1996, containing findings of fact and
further directing that the resolution approve the installation of one
288 foot communication tower, the most southerly of the 3
currently proposed, and that Condition 6 referring to the land
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CITY COUNCIL REGULAR MEETING, 11/7/96
management plan be amended to provide for the phased
elimination of invasive non - native vegetation and the replacement
of native vegetation along the lines of what was discussed this
evening. Councilwoman Monroe seconded the motion. Attorney
Baird stated that one resolution would be prepared to incorporate
both the conditional use approval and the site plan approval,
eliminating the need for Resolution 101, 1996. Councilman Clark
amended his motion to approve both Resolution 100, 1996, and
Resolution 101, 1996, being combined into one resolution. Vice
Mayor Furtado stated that she was not comfortable that the
resolution was addressing the City's requirement of shared use on
towers. Vice Mayor Furtado stated that she was not convinced that
there was not ample space on existing towers to be used by the
applicant. Councilman Clark stated that he understood the shared
use of tower space section of the City's communication tower
ordinance intended to eliminate the need for the concentration of
towers within the City, however, stated he had no problem
amending his motion to include that the City Attorney address Vice
Mayor Furtado's concerns and to ensure that the amended
resolution complies with Ordinance 13, 1995. Councilwoman
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CITY COUNCIL REGULAR MEETING, i ln196
Monroe accepted Councilman Clark's amendments to his motion
and seconded the motion. The motion unanimously carried.
RESOLUTIONS:
Resolution 158,1996 City Manager Bobbie Herakovich stated that Mr. Kenneth Steele
was interviewed by the Finance Director and the Assistant City
Manager and staff recommended approval of Resolution 158,
1996, appointing Mr. Kenneth Steele to the Board of Trustees of
the Police Officers Pension Fund.
Vice Mayor Furtado made a motion to approve Resolution 158,
1996, appointing Kenneth Steele to the Board of Trustees of the
Police Officers Pension Fund. The motion was seconded by
Councilman Clark and unanimously carried.
Resolution 159, 1996 City Manager Herakovich stated that Resolution 159, 1996, was to
approve an appointment of a member to the General Employees
Pension Board. Potential members were interviewed by the
Finance Director and the Assistant City Manager. Staff
recommended approval of Resolution 159, 1996, appointing
Stephen Parella as a member. Vice Mayor Furtado made a motion
to approve Resolution 159, 1996, appointing Stephen Parella as a
member to the General Employees Pension Board. The motion
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CITY COUNCIL REGULAR MEETING, 11/7/96
was seconded by Councilman Clark and unanimously carried.
Resolution 160, 1996 City Manager Herakovich stated Resolution 160, 1996, was for the
appointment of a member to the Board of Trustees of the
Fireman's Pension Fund. Mrs. Herakovich stated that Hugh
William Perry was interested in reappointment and staff was
recommending that Mr. Perry be reappointed to that Board.
Councilman Clark made a motion to approve Resolution 160,
1996, appointing Hugh William Perry to another term on the Board
of Trustees of the Fireman's Pension Fund.
The motion was seconded by Vice Mayor Furtado and
unanimously carried.
ITEMS FOR COUNCIL ACTION:
Vice Mayor Furtado Vice Mayor Furtado referenced items she brought up at the
beginning of the meeting. Vice Mayor Furtado stated that she
would like to interview applicants for the Recreation Advisory
Board, along with the Parks and Recreation Director and Jeff
Sabin, Vice Mayor Furtado stated that the Board needed to fill the
position of one regular member and 2 alternate members.
Vice Mayor Furtado asked that the overlay of the mixed use in the
Visioning be enforceable and the City Manager was asked to
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CITY COUNCIL REGULAR MEETING, 11/7/96
discuss this with the City Attorney. City Manager Herakovich
stated that as part of the Visioning effort, part of the work being
done was to put stars ideas of how the mixed use overlay would
work into a written form for the Council's consideration.
Councilwoman Monroe Councilwoman Monroe stated that she spoke with Mr. Vavrus last
week regarding the equestrian community and reported that this
issue was moving along at a faster rate than she had hoped. Mr.
Vavrus indicated that he had an engineering firm working on a
1000 acre plan, has contacted the state DOT regarding the State
Road 7 extension, met with the Pahn Beach County Horse Industry
Council President and with the Greenways Program representative
and has his representative checking into the building of an arena.
Councilwoman Monroe referenced roadside solicitations, stating
that when she exited I -95 there was a gentleman selling roses.
Councilwoman Monroe stated that she was concerned with the
safety of this type of solicitation and asked how roadside
solicitations could be limited. The City Manager stated that
solicitors were not allowed to approach a vehicle.
Councilman Clark Councilman Clark stated that at the last meeting of the
Loxahatchee Council of Governments there was discussion
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CITY COUNCIL REGULAR MEETING, 11/7/96
regarding the Loxahatchee National and Scenic River Management
Plan and it was pointed out that the City was not a member of the
Loxahatchee River Management Coordinating Council ( LRMCC),
even though the Slough was well within the City limits.
Loxahatchee COG members had asked that he come back to the
City Council and ask for its consideration of joining the
membership of LRMCC in order to give the City a voice on issues
that impact the City. City Manager Herakovich stated that one of
staff's recommendations in the Visioning process was to de -annex
the Slough so that the City would not be responsible for police and
fire protection in that location. City Manager Herakovich stated
that she would ask the City Engineer for further information.
Councilman Clark stated that planners from a number of
municipalities circulated a report at the Intergovernmental Forum
regarding the issue of addressing the problems of the educational
system, concurrency and a number of issues to be considered along
that line. Councilman Clark stated that the report was available
for other Council members to read.
Mayor Russo Mayor Russo stated that he received a letter from a resident
expressing her displeasure with his attendance at a meeting of the
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CITY COUNCIL REGULAR MEETING, 11/7/96
School Board regarding redistricting. Mayor Russo stated he
responded to the letter, expressing his views and that of the City
Council regarding redistricting without proper planning.
Mayor Russo stated that he hosted the City's Art Show that is held
every month. Mayor Russo stated that he participated in the Palm
Beach Gardens Community High School Homecoming Parade.
Mayor Russo reported that the Economic Advisory Group met this
morning and Jody Gleason was in attendance. Mayor Russo stated
that when Jody Gleason speaks, you feel good about the schools
and what is happening and the job they have before them.
Mayor Russo stated he has received letters from Mr. Kiselewski
who has expressed his concerns regarding code enforcement.
Mayor Russo stated that rather than sending letters back and forth
between the City and Mr. Kiselewski, they ask for his help and
invite him to a Council Workshop meeting. The City Manager was
directed to contact Mr. Kiselewski with this proposal. Vice Mayor
Furtado stated that she too had concerns with code enforcement,
however, in the past few weeks has noticed an improvement in this
area.
Councilwoman Monroe Councilwoman Monroe stated that she read in today's newspaper
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CITY COUNCIL REGULAR MEETING, 11/7/96
that Jupiter said they may contract with the City of Palm Beach
Gardens for fire and emergency services. Councilwoman Monroe
hoped that the City was not in negotiations. City Manager
Herakovich assured the City Council that the City was not part of
any negotiations with the Town of Jupiter.
Councilwoman Monroe stated that on Sunday the Palm Beach
County Horse Industry Council was putting on a Fun Day and
encouraged all those interested to attend.
ADJOURNMENT There being no further business to discuss, the meeting was
adjourned at 10:45 p.m.
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CITY COUNCIL REGULAR MEETING, 11/7/96
APPROVAL /
i
�r Joseph. Russo Co o an Linda Monroe
Vice Mayor Lauren Furtado Counci an c Jablin
Councilman David Clark
F"MIJIF
IV
Cindy Hairy, Deputy City Cler
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