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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 2 CITY COUNCIL REGULAR MEETING, 11/7/96 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, 3 CITY COUNCIL REGULAR MEETING, 11/7/96 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 4 CITY COUNCIL REGULAR MEETING, 11/7/96 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. CITY COUNCIL REGULAR MEETING, 11/7/96 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 CITY COUNCIL REGULAR MEETING, 11/7/96 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 7 CITY COUNCIL REGULAR MEETING, 11/7/96 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. 8 CITY COUNCIL REGULAR MEETING, 11/7/96 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 CITY COUNCIL REGULAR MEETING, 11/7/96 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 10 CITY COUNCIL REGULAR MEETING, 11/7/96 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 11 CITY COUNCIL REGULAR MEETING, 11/7/96 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 12 CITY COUNCIL REGULAR MEETING, 11/7/96 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 13 CITY COUNCIL REGULAR MEETING, 11/7/96 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 14 CITY COUNCIL REGULAR MEETING, 11/7/96 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 15 CITY COUNCIL REGULAR MEETING, 11/7/96 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 16 CITY COUNCIL REGULAR MEETING, 11/7/96 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 17 CITY COUNCIL REGULAR MEETING, 11/7/96 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 18 CITY COUNCIL REGULAR MEETING, 11/7/96 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 19 CITY COUNCIL REGULAR MEETING, 11/7/96 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 20 CITY COUNCIL REGULAR MEETING, 11/7/96 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 21 CITY COUNCIL REGULAR MEETING, 11/7/96 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 22 CITY COUNCIL REGULAR MEETING, 11/7/96 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 23 CITY COUNCIL REGULAR MEETING, 11/7/96 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 24 CITY COUNCIL REGULAR MEETING, 11/7/96 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 25 CITY COUNCIL REGULAR MEETING, 11/7/96 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 26 CITY COUNCIL REGULAR MEETING, 11/7/96 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. 27 CITY COUNCIL REGULAR MEETING, 11/7/96 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 28 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. 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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. 41 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 42