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02-14-1995 VC SP-MMINUTES OF SPECIAL SESSION ' OF THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA HELD TUESDAY, FEBRUARY 14, 1995 AT THE NORTH PALM BEACH COMMUNITY CENTER 1200 PROSPERITY FARMS ROAD, NORTH PALM BEACH, FLORIDA Present: Gail H. Vastola, Mayor Tom Valente, Vice Mayor V. A. Marks, M. D., President Pro Tem Larry Kelley, Councilman Paul D. Moore, Councilman Dennis W. Kelly, Village Manager George W. Baldwin, Village Attorney Kathleen F. Kelly, Village Clerk ROLL CALL Mayor Vastola called the meeting to order at 7:00 p.m. All members of Council were present. All members of staff were present. PURPOSE OF THE SPECIAL SESSION The Special Session of the Village Council was aquasi-judicial hearing of appeals by The Benjamin School Board of Trustees, Old Port Cove Property Owners Association, Inc., North Palm Beach Community Action Association/PAC, and Crystal Tree Plaza to approve or disapprove a preliminary site plan and preliminary Certificate of Appropriateness of a Target Store. _ ~- STATEMENT BY COUNCIL ~~ N Councilman Paul Moore provided a statement for the record that, although his appointment to the Village Council was made on January 25, 1995, after the first Target meeting of November 9, 1994, since his appointment he has familiarized himself with the proceedings of that original quasi-judicial meeting conducted on November 9, 1994 by listening to the tapes of that meeting in their entirety, and reviewing all the materials and exhibits presented during that meeting. Mr. Moore further stated that he has acomplete understanding of the issue and all that transpired at the initial meeting. PROCEDURE FOR HEARING Mayor Vastola identified the applicant and appellants as follows: Conrad DeSantis, Applicant; represented by Raymond Royce Minutes of Special Session Held Tuesday, February 14, 1995 The Benjamin School Board of Trustees; represented by Alan Ciklin Old Port Cove Property Owners Association, Inc., North Palm Beach Community Action Association/PAC, and Crystal Tree; represented by Louis Timchak, Jr. Mayor Vastola announced that thirty minutes would be allotted to Mr. Timchak and thirty minutes to Mr. Royce to present their cases, and ten minutes to Mr. Ciklin, who stated that to be sufficient. All members of the public wishing to speak were allotted two minutes each. SWEARING OF WITNESSES All persons giving testimony at this meeting were sworn in by the Village Clerk. PRESENTATION BY PLANNING COMMISSION ' Tom Hogarth, Director of Public Services and Secretary to the Planning Commission, outlined the procedures followed since the Village Council remanded the appeals of the Target Store preliminary site plan and Certificate of Appropriateness back to the Planning Commission on November 9, 1994. The Planning Commission held four meetings with the applicant and the appellants to negotiate and revise the site plan. Mr. Hogarth stated that the revised design is significantly different from the original design. The changes were negotiated directly between the applicant and the appellants. At the final meeting, the Planning Commission resolved remaining issues, which are reflected in the drawings dated February 8, 1995, and which were distributed to the Village Council for this evening's meeting. An alternate site plan submitted by the applicant on February 10, 1995 which has not been reviewed by the Planning Commission was withdrawn by the applicant. Mr. Hogarth stated that the Department of Public Services would, if the project is approved, confirm all necessary approvals or permits issued by appropriate agencies and that the project is in accordance with all building regulations prior to issuance of a building permit. Orlando Puyol, Chairman of the Planning Commission, presented the proposed plan on behalf of the Planning Commission. Mr. Puyol stated that the Planning Commission had voted to recommend approval of the preliminary site plan and Certificate of Appropriateness for the Target Store. Mr. Puyol reported that the Planning Commission had given this approval in September based on certain conditions. As a result of appeals filed against the Target Store, the Village Council remanded it back to the Planning 2 Minutes of Special Session Held Tuesday, February 14, 1995 Commission, directing the Planning Commission to work with all groups concerned. The ensuing workshops and special meetings resulted in a revised site plan that included 24 special conditions, 43 enhanced architectural features, for an overall package of 67 stipulations, changes, revisions and agreements. Mr. Puyol displayed the site plan submitted in September 1994 as well as the revised site plan of February 8, 1995, and highlighted some of the 67 conditions, as follows: ^ garden center and loading area relocated to north side of property ^ 6-ft. screen wall along south and west side of project, wall reaches 8 feet in height above Ellison Wilson Road, with the wall sharing same architectural features that are prevalent throughout the building ^ Enhanced landscaping with automated irrigation, to include trees with overall height of 17 feet ^ Hedge material increased from one-gallon pots to 3-gallon pots, and spaced closer together ^ Access on Carolinda deleted ^ East-west access road from U. S. One to Ellison Wilson Road ^ The Ellison Wilson Rd. access to be restricted to a "left in, right out" only ^ The building will have barrel-tiled roof, covered colonnades, arches, seating areas and other architectural features depicted in Elevation Plan (Mr. Puyol pointed out that the building is now similar to the Prosperity Center adjacent to this site) ^ Entrance monument to correspond to the divided driveway ^ Free-standing arcade with bougainvillea growing throughout the arches with walkway underneath the trellises ^ Main entrance from U. S. One was relocated to a mid-point on the east property line, and parking area access was deleted from the area of the main entrance. Parking area entrance was relocated to the farthest point 3 Minutes of Special Session Held Tuesday, February 14, 1995 from U. S. One to encourage reduced vehicle speed as cars enter the parking area ^ An 8-fit. sidewalk and bicycle path from U. S. One to the building entrance, with seated rest areas ^ Cart corrals will be installed in parking lot for temporary storage only during business hours ^ No light spillage; no sodium vapor lights Mr. Puyol concluded his remarks by saying that, after extensive presentations and discussions, as well as numerous statements from the public, the Planning Commission voted to recommend approval of the preliminary Certificate of Appropriateness for the Target Store on January 30, 1995. Mr. Timchak cross-examined Mr. Hogarth and Mr. Puyol at this time; Mr. Royce, Attorney for the Applicant, declined to cross-examine. Statements from the public were heard by the Village Council. Approximately 25 people spoke in opposition to the proposed Target Store. The meeting recessed at 8:20 p.m., and reconvened at 8:30 p.m. Louis Timchak, 1201 U. S. Highway One, North Palm Beach, presented his case to the Village Council, opposing approval of the preliminary site plan and Certificate of Appropriateness. Mr. Timchak stated that he was speaking only on behalf of his three clients, identified at the onset of the meeting. In his presentation, Mr. Timchak stated that his clients acknowledge that the property in questions is zoned C-1, and permits commercial use, however, they insist that whatever commercial development is placed on the subject property that it 1) comply with all applicable laws of the Village Code, including the Comprehensive Plan, the Appearance Code, and applicable building regulations that are administered by Mr. Hogarth; 2) that it is compatible with neighboring non-commercial land uses as required by the Comprehensive Plan and the Appearance Plan; and 3) that it promotes the health, safety 4 Minutes of Special Session Held Tuesday, February 14, 1995 and welfare of the community. Mr. Timchak stressed the importance of reading the record of prior Target meetings with the Planning Commission, that decision must be based on the evidence presented in the record, and the test is whether there is competent, substantial evidence on which the Council can base its conclusion to approve or deny the appeal. Mr. Timchak told the Council that what he and Mr. Royce say, as attorneys, is not evidence, and the Council should not base its decision on what he says, but rather, on evidence that is in the record. Mr. Timchak stated that because this is a quasi-judicial matter, it sets forth an administrative proceeding for site plan approval and is conducted to fiactually determine if a proposed site plan submitted by a property owner conforms to the specific requirements set up in the administrative regulations governing erection of improvements on the property, and deals with the Appearance Code and all the others previously mentioned. Mr. Timchak told the Council that this is the law, and they must apply it, that the Council must base its decision on facts that support, and are consistent with, the standards set forth in the Village's Comprehensive Plan and Appearance Plan. Mr. Timchak further told the Council that they must not approve it just because they like it, or disapprove it just because they don't like it. He said the decision is not legislative, but quasi-judicial. ' Mr. Timchak objected to the initial hearing of September 13, 1994 which first approved the Target site plan. Mr. Timchak stated that posting a meeting notice in the office of the Building Official was not sufficient notice for due process requirements. Mr. Timchak quoted from the May 1994 Florida Bar Journal, Page 16: "Strict scrutiny, meaning that a review in court will make a detailed examination of the zoning action to confiirm that it exactly adheres to what complies with the Plan. On Page 20 of the same article, it goes on to say that the local government should have the discretion to decide that the maximum density should not be allowed, provided that local governmental body approve such development as consistent with the Plan. All such decisions by the local government must be supported by substantial competent evidence." Mr. Timchak stated that disapproval by the Village Council would not create inverse condemnation. Further, he told the Council that simply requiring a change in the appearance or intensity of development is not sufficient to constitute inverse condemnation. Mr. Timchak also was of the opinion that laymen, such as those speakers from the public that addressed their opposition to the Target Store, should be considered as expert witnesses, and should be considered as competent and substantial evidence. 1 5 Minutes of Special Session Held Tuesday, February 14, 1995 Mr. Timchak referred to Florida State Statutes 1263.3164(6), which says that "all action taken regards development orders must be consistent with the Land Use Plan". Mr. Timchak quoted the Village's Goal Statement set forth in the Land Use Plan, Section 3.2, of the Land Use Plan Policy Sections 1.1 ., 1.4, and 1.5 all require that commercial development use of the land be compatible with the adjacent non-commercial land uses. He continued by saying that this is not just aesthetic compatibility as required by the Appearance Plan, but is in addition to the aesthetic compatibility required by the Appearance Plan. Mr. Timchak further argued that the Kimley-Horn Report submitted as evidence at the November 9, 1994 hearing, said that the Planning Commission found the store to be compatible with the character of the immediate neighborhood, when in fact, there is no evidence in the record to substantiate such a finding. Mr. Timchak, on behalfi of his clients, object to such a finding, and the statement as made in the Kimley-Horn report is not accepted. Mr. Timchak said that the Planning Commission did not set forth the rationale or the facts on which they made their decision, and therefore their actions are insufficient under the law. Mr. Timchak also commended the Planning Commission for the attention given during the ' process, and for affording all persons courtesy and the opportunity to be heard. Mr. Timchak introduced a letter into the record, prepared by Brian Idle of Peacock & Lewis Architects and Planners, Inc., and dated February 14, 1995. Mr. Idle's letter was an evaluation of the most recently revised and submitted drawings for the Target Store. Mr. Idle was present, and his report reflects his opinion that the revised development still reflects a lack of compliance with the intent and criteria set forth in Article III "Appearance Code" of Chapter 6 "Buildings and Building Regulations" of the Village Code, due to its scale and incompatible nature. Also submitted into the record by Mr. Timchak was a set of plans dated January 25, 1995, a copy of which was given to the Village Council and Mr. Royce, as well as a copy of the North Palm Beach Appearance Code. Mr. Timchak directed the Council's attention to a set of photographs submitted on two prior occasions, 12/20/94 and 1/3/95, showing pictures of the immediate neighborhood. Mr. Timchak also objected to the landscaping, which he feels is inadequate, as earlier plans submitted by the applicant indicated mature trees. According to Mr. Timchak, the revision indicates trees that will mature in two years, and are not freeze tolerant. Mr. Timchak, speaking for himself and on behalf of his clients, thanked the Village Council for the time, dedication and patience that they have shown in such a difficult process. 6 Minutes of Special Session Held Tuesday, February 14, 1995 Mr. Royce and Mr. Ciklin declined to cross-examine. Appellant: Benjamin School and Board of Trustees Alan Ciklin, 505 North Flagler Drive, West Palm Beach, Attorney for The Benjamin School Board of Trustees, presented his case to the Village Council at this time. Mr. Ciklin told the Council that since the Board of Trustees filed their appeal, they had met with the developer to learn more about the site plan and to assess the effect of the project on The Benjamin School. Their goal was to mitigate Target's impact on the school. As part of the process, they retained the services of a landscape architect and land use planner. Several vital issues were identified as a result of the school's review. Mr.. Ciklin stated that one of those issues was potential access on Carolinda Drive. Other issues were location of the garden center, location of the out parcel, dumpsters, and loading areas; access points on Ellison Wilson Road; truck and vehicular traffic generated by the store, especially on Ellison Wilson Road in the vicinity of the school; hours of operation; buffers and landscaping; use of the property located at the corner of Ellison Wilson Road and Carolinda Drive; and enhancement of the architectural features of the store. Mr. Ciklin told the Council that meetings were held with the property owner and the developer for approximately five weeks for the purpose of resolving these specific issues. Agreement finally was reached, as follows: ^ No access on Carolinda Drive ^ Out parcel, garden center, loading areas and dumpsters relocated away from school to north side of property ^ Southern access on Ellison Wilson Road was eliminated, leaving only a northern access point on Ellison Wilson Road ^ All traffic, through the use of signage and curbs, would be directed to and from PGA Blvd, i.e. no Target traffic would go south on Ellison Wilson ^ Hours of operation would be limited to 10:00 p.m. ^ A 6-ft. high wall on a 2-ft. high berm will separate the store from the school ^ Landscaping will be installed at the developer's expense on the school side of the wall, and irrigation will be installed by the developer; the school 7 Minutes of Special Session Held Tuesday, February 14, 1995 requested that they be allowed to undertake the further maintenance of the landscaping in order to eliminate access to that side of the school and to maintain the quality of the landscaping ^ Property located at the corner of Ellison Wilson Road and Carolinda will be donated to the school in order to perpetuate a permanent buffer and to eliminate any intrusion into the school's parking area ^ The developer enhanced the architecture of the facility Mr. Ciklin stated that even though the agreements as stated were placed in the record on November 9, 1994 and on subsequent occasions, Village Attorney George Baldwin cautioned that donation of property and hours of operation may not be appropriate as conditions of approval. Based on that, Mr. Ciklin said that the Board of Trustees and the developer entered into a formal agreement with The Benjamin School covering those matters, and were not actually conditions of approval by the Village Council. ' Mr. Ciklin reiterated that the goal of the Board of Trustees was to mitigate the impact of the development on the school, and told the Council that that has been accomplished. Based on the Agreement and the conditions met, Mr. Ciklin withdrew the appeal of The Benjamin School Board of Trustees. APPLICANT CONRAD DESANTIS. AS TRUSTEE: Raymond Royce, Attorney for the applicant, presented his case for the Target Store. He told the Council that all the matters befiore the Planning Commission and all the plans, letters and reports submitted to the Planning Commission and the Village Council are, in fact, part of the record of these proceedings. Mr. Royce told the Council that he was not bringing emotional arguments or passionate pleas before them, and felt that the Council could not base their decision on emotions or passions, but rather, were bound to uphold the applicable law, like it or not. Mr. Royce stated that the land in question is already zoned commercial for use by a department store, and the use of the land for construction of a Target store is not the question. According to Mr. Royce, it is not a matter of discretion as to the land use. Mr. Royce agreed with Mr. Timchak, who had said in his argument that the Council is required to base their decision on the law, and not what seems most popular at the moment. 1 8 Minutes of Special Session Held Tuesday, February 14, 1995 Mr. Royce quoted Section 45-33 of the Village Code, the zoning code, which specifies the criteria for use, and which provides for the following use: "Any retail business or commercial use which does not involve manufacturing or processing of products". Mr. Royce argued that if the Council were to base decisions on personal likes or dislikes, there would be no real basis for any decisions, and we would have a government without laws, without a zoning code, without an appearance code. Mr. Royce stated that the use is set by the code, and this use is allowed by the code. According to Mr. Royce, the only real issue is appearance. Mr. Royce recalled that the appeals were heard by the Council, remanded by the Council to the Planning Commission fior reconsideration, and that the Planning Commission deserved everyone's thanks for doing a very difficult job in a very competent manner, under very trying circumstances. Mr. Royce referred to Section 6-58 of the Appearance Code which says that the building's appearance is to be compared to those in the immediate neighborhood, and this has been shown in a number of photographs. The photographs show both large and small buildings, with asix-storied building across the way and other large buildings in the area, as well as small buildings. Clearly, Mr. Royce said, thanks to the work of the Planning Commission, the proposed building does comply with the appearance code, being similar in scale and in harmony with the appearance of surrounding buildings. Mr. Royce clarified the meaning of compatibility by referring to the definition on Page 2052 of the Code, which defines compatibility as "harmony in the appearance of two or more buildings, structures, and landscape developments in the same vicinity". He further stated that the drawings before the Council reflect the results of the process, input and suggestions plus 67 conditions that were presented to the Planning Commission; not what Target wanted and applied for originally. Mr. Royce also refierred to the Village Manager's statement in a recent newsletter, which said that the Appearance Code should not be used to place such an unreasonable hardship on a development so that it could not be developed. In other words, Mr. Royce explained, the Appearance Plan should not be used as a tool by which to deny the right to reasonable use of the property. Mr. Royce told the Council that the evidence clearly shows that there is compatibility, the development meets the criteria of similarly situated commercial properties in this area. Mr. Royce said that many hours were spent with representatives from Old Port Cove, and many changes were made as a result, including the following: ^ Abetter front entrance 9 Minutes of Special Session Held Tuesday, February 14, 1995 ^ More landscaping ^ Sidewalk from U. S. One to store entrance ^ Brick pavers at sidewalk crosses ^ Sidewalk along U. S. One ^ Tower feature at mid-point of building ^ Gazebo and seating area ^ Expanded trellis area, screened in by garden center Mr. Royce went on to say that there were at least 67 conditions considered over 20 hours of testimony and consideration. The applicant readily agreed to 24 conditions, which are typed on the plan; 14 additional architectural changes without batting an eye; and some ' 29 other proposed architectural details including some duplication in the numbering system were discussed one by one by the Planning Commission. Regarding access on Ellison Wilson Road, the developer has asked for one limited access which will be left in, right out, and which will preclude Target Store traffic from utilizing Ellison Wilson Road south. Mr. Royce stated that they have met with the City of Palm Beach Gardens, and responded to Commissioner Marcus as well, that they pledge to work with the development to the north, and share access on that road to eliminate the necessity of further access points on Ellison Wilson Road. Mr. Royce distributed a Development Comparison Table comparing Target's building setbacks, perimeter buffers, building coverage, interior open space, trees, and interior parking with those of surrounding properties. Mr. Royce told the Council that in most categories, the Target Store exceeds what is required by the code. Mr. Royce reminded the Council that the only appraiser to testify for the record was Mr. Underwood, who testified at an earlier meeting and concluded that the Target Store would have no negative impact on property values. Mr. Royce further stated that traffic, including traffic counts and bridge counts, is the jurisdiction of Palm Beach County by way of the Countywide Traffic Performance Standards Ordinance. The record of these proceedings already includes a letter from the 10 Minutes of Special Session Held Tuesday, February 14, 1995 Palm Beach County Engineer dated November 9, 1994, which indicates that the traffic performance standards have been met, and do not violate the concurrency requirements of Palm Beach County Traffic Standards Ordinance. Mr. Royce told the Council that if traffic standards have been met, and the drainage considerations taken care of by another agency, and the Village subdivision code is not applicable with regard to a 5% contribution as mentioned by Mr. Timchak because the property is not being subdivided, and that the building will meet the building code, then the answer to the question, if the cart is before the horse, is that if each ofi the codes cannot be complied with, then the store will not be built. George Hutchinson, Architect, testified that he was one of the architects who worked on the plans and worked with the appellants trying to resolve their concerns. He stated that he is familiar with the Village's Appearance Code. He testified that in his professional opinion, the building and landscaping, as recommended to the Council by the Planning Commission and shown in the revised plans, complies with the Appearance Code of the Village. ' In conclusion, Mr. Royce asked the Village Council to disregard emotions and to make a logical, lawful decision based upon the record, testimony and report of the Planning Commission, and to follow the recommendation of the Planning Commission. Dave Woodward, Landscape Architect, Vero Beach, Florida, at the request of the Village Council, testified that the trees, as shown and described in the February 8, 1995 plans, are accurate and are not subject to change, and are described in the plant legend in the upper right-hand corner of the plan. Mr. Timchak was given an additional five minutes to rebut Mr. Royce's argument, and questioned why the 5% donation for subdivisions had not been resolved, since the out parcel created a subdivision of the project. He also reiterated that the proposed project violates the Comprehensive Plan. MOTION BY VILLAGE COUNCIL During deliberation by the Village Council, Village Attorney George Baldwin opined that the question of a 5% donation does not apply to straight zoning use, and consideration of the Comprehensive Plan is not at issue in this meeting. 1 11 Minutes of Special Session Held Tuesday, February 14, 1995 After brief discussion, President Pro Tem Marks moved to deny the preliminary site plan and Certificate of Appropriateness for a Target Store. The motion died for lack of a second. Councilman Moore moved to approve the preliminary site plan and issuance of a preliminary Certificate of Appropriateness for a Target Store. Councilman Kelley seconded the motion. The motion passed 4-1, with Councilman Moore, Councilman Kelley, Vice Mayor Valente and Mayor Vastola voting aye, and President Pro Tem Marks voting nay. There being no further business to come before the Council, the meeting adjourned at 9:53 p.m. ~~ E athleen F. Kelly, CM , Vill ge Clerk 1 12