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HomeMy Public PortalAbout06 14 19 MeetingMINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, JUNE 14, 2019 AT 9:00 A.M. IN THE WILLIAM F. KOCH, JR. COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. II III Call to Order. Mayor Morgan called the meeting to order at 9:00 A.M. Pledge of Allegiance. Mayor Morgan led the Pledge of Allegiance. Roll Call. Present and Participating Also Present & Participating: Scott W. Morgan Thomas W. Stanley Paul Lyons, Jr. Joan K. Orthwein Donna White Gregory Dunham John Randolph Edward Nazzaro Edward Allen Rita Taylor Mayor Vice Mayor Commissioner Commissioner Commissioner Town Manager Town Attorney Staff Attorney Police Chief Town Clerk IV. Minutes. A. Regular Meeting of May 10, 2019. Vice Mayor Stanley made a motion to accept the minutes of May 10, 2019, and the motion was seconded by Commissioner Orthwein with all voting AYE at roll call. V. Additions, withdrawals, deferrals, arrangement of agenda items. There were none. VI. Announcements. A. Regular Meetings and Public Hearing 1. July 9, 2019 at 9:00 A.M. 2. August 9, 2019 at 9:00 A.M. 3. September 13, 2019 at 4:00 P.M. 4. October 11, 2019 at 9:00 A.M. B. Proposed Budget Meeting and Hearing Dates 1. July 9, 2019 at 9:00 A.M. 2. September 13, 2019 at 5:01 P.M. 3. September 24, 2019 at 5:01 P.M. Mayor Morgan called attention to these dates. VII. Communication from the Public (3 min. maximum) Senator Lori Berman gave an update on the Legislative session held in May with a 91 billion dollar budget for the State of Florida. Money was brought back for projects in Palm Beach County including help for individuals being released from prison, water projects and transportation. Senator Berman spoke about pre-emption so that the Town will know what areas they cannot pass legislation on. There is a very strong movement in Tallahassee to pre-empt local government, she said. Some of the following bills were put before the governor: 1. Cities cannot ban vegetable gardens in front yards. HOA's can ban them, but not the city. 2. Unless someone gets a statement from the International Society of Arboriculture saying that a tree is a danger to the area, the Town cannot regulate pruning, trimming, removal or replacement of trees. 3. 5G placement of towers 4. Government accountability 5. The Budget needs to be posted on-line in advance of the meeting and keep it on-line for two years after passing. 6. In October, there will be requirements regarding financial reporting, average median income, salaries, etc. 7. If the Town passes an ordinance in an area where the State has already pre-empted it, the Town will be responsible for Attorney's fees if there is a challenge to that. 8. Firefighters and cancer presumptions - cancer treatment will be given at no cost and a one-time cash payout of $25,000 if diagnosed with cancer. The cancer must be proven to be related to the job. 9. Lottery tickets will now say "Warning: Gambling can be addictive". Minutes of Town Commission Regular Meeting & Public Hearing Held June 19, 2019 @ 9:00 A.M. Senator Berman stated that 179 bills were passed in Tallahassee. Mayor Morgan thanked Senator Berman for coming and giving an update. Mr. Bob Burns, Town resident, proposed two items to be put on a future agenda. He thanked the Mayor for the recent letter sent out to residents regarding yard markers but added that unless he received notice from the Chief of Police to remove them, he would be leaving them on his property because right now his yard looked pretty good. Mr. Burns brought up the No Thru-Traffic signs and said they had been less than successful on deterring a lot of trucks. He stated the only trucks being deterred were the ones that were in Town all the time. His proposal was to make Lakeview Drive to Polo Road one-way going in and Banyan to AIA one way out. He also proposed making Golfview and Polo Drive one-way as well. Mr. Burns said that he had spoken with Chief Allen and Lt. Haseley, who stated approximately 22 different signs would be needed for these changes. At this point Mayor Morgan told Mr. Burns that he had gone over the three minute time limit but he was going to allow Mr. Burns to continue as he thought this was important. Mayor Morgan also told Mr. Burns that this issue had been discussed at the last commission meeting and Chief Allen had said at that meeting that although there was some potential to one-way roads in Gulf Stream, there were more negative downsides to it. Mayor Morgan then went on to add that the Commission had not given up on this topic and would be raising some additional options as one-way roads would not be the first option of the Commission. Mr. Burns said that his second suggestion to be put on the Agenda is to eliminate the building moratorium between November 1 and May 1, with the exception of things that would create an undo amount of noise. He added that approximately 50% of the residents in Gulf Stream are present year round and having the construction moratorium during the "season" means the year-round resident has to put up with the construction and the seasonal residents do not, which makes no sense. Mayor Morgan thanked Mr. Burns and said this subject has been brought up before and will be put on the next meeting's Agenda to discuss. VIII. Board of Adjustment Hearing A. Application for Appeal of Final Action of Planning and Building Administrator 1. Denial of permit to construct a "promenade" at 23 Hidden Harbour Drive. 2. Violation of 2013 Settlement Agreement w/Martin O'Boyle. Mayor Morgan stated that the Commission was sitting as the Board of Adjustment and turned the meeting over to Town Attorney, John Randolph. Attorney Randolph gave an overview of the responsibilities of the Commission to consider an appeal by Martin O'Boyle of a decision by Rita Taylor to deny an application for a dock/promenade filed by Mr. O'Boyle related to his property located at 23 Hidden Harbour Drive in Gulf Stream. Attorney Randolph stated the Commission was sitting to entertain Mr. O'Boyle's appeal of Rita Taylor's denial of his application. He added they were sitting as judges in a quasi-judicial capacity to determine whether to grant or deny Mr. O'Boyle's appeal. Attorney Randolph made it clear that this was not a trial where testimony would be heard, but they would hear arguments set forth by the attorneys for Mr. O'Boyle and the Town as to why they should grant or deny the appeal. He stated questions could be asked of the attorneys and their presentations and time parameters should be stated before beginning. Once all arguments were complete, the Commission would deliberate among themselves with no further input from the parties than to answer questions posed to them. Attorney Randolph then asked if any ex parte communication had been had by any of the Commissioners in regard to the appeal before them and if they came to the hearing with an open mind basing their decision solely upon the records put before them at the - present moment. Commissioner Lyons and Mayor Morgan stated the only ex parte communication they had was with Town staff concerning the agenda packet. Vice Mayor Stanley and Commissioner White stated the only ex parte communication they had was with Rita Taylor regarding the agenda packet. Commissioner Orthwein stated the only ex parte communication she had was when the appeal was received. All commissioners stated they Minutes of Town commission Regular Meeting & Public Hearing Held June 14, 2019 @ 9:00 A.M. were coming to the hearing with an open mind based on the evidence presented. Mayor Morgan then set the parameters of 30 minutes for each side with a ten minute rebuttal. Attorney Scott Weires, from the law firm Murdock Weires, stated the case for appeal on behalf of Mr. O'Boyle. He expounded on both of the items and asked the question of which Code was being applied and argued that the 1981 Code should be applied to the deck/promenade. Attorney Weires called Town Manager, Gregory Dunham, as a witness, and questioned Mr. Dunham. Attorney Weires called a second witness, Mr. Martin O'Boyle, and questioned Mr. O'Boyle. Mr. O'Boyle stated that his promenade fit into the categories listed in the Development Agreement because it is a structure over the water and that the word promenade is a label and that it can be called promenade, boardwalk or deck, but it is not a dock. Mayor Morgan then asked Mr. O'Boyle if the promenade would be supported by pilings on the water similar to the photograph shown in the meeting by Mr. O'Boyle, to which Mr. O'Boyle answered that would be his intention. Mayor Morgan asked what was submitted to the Town, to which Mr. O'Boyle answered "with pilings". Attorney Weires went back to the first witness, Town Manager Dunham, and questioned him further. Town Manager Dunham stated that as Mr. O'Boyle called them labels, that's what they were, and the Code uses the word dock. Attorney Weires presented another witness, Mr. Robert Curry, and questioned Mr. Curry. stated that he had been an architect for 50 years. Mr. Curry said that Mr. O'Boyle doesn't have much of a back yard and added this was a deck extension to the pool. Attorney Weires then asked Mr. Curry to expound on what he had designed for Mr. O'Boyle to which Mr. Curry said that he had expanded the back yard to provide space around the pool. Attorney Weires asked if he had designed a deck or a dock, to which Mr. Curry said it was a deck and the portion on the right was a dock. Attorney Weires asked if the dock portion of the proposed structure complied with the Code, to which Mr. Curry said that it did except for the setback. Town Attorney Randolph asked Mr. Curry if he found a definition for deck or promenade in the Town Code, to which he answered in the negative. Mr. Curry stated that the Code said you could build a deck over the water, to which Town Attorney Randolph asked where it said that and Mr. Curry answered it was in Exhibit C. Town Attorney Randolph pointed out that Exhibit C said it was permissible subject to approval by the Town, which would mean the Town would use their Code to determine whether or not it could be approved. Attorney Weires then asked that his packet of exhibits be moved into evidence. Mayor Morgan accepted. Attorney Ele Zachariades, from the law firm Dunay Miskel Backman Law, made a closing argument on behalf of Mr. O'Boyle. Town Attorney Randolph then asked to submit the Settlement Agreement, the Development Agreement, the applicable Codes and his letter to Bill Ring explaining the Town's position in regards to this application as evidence. Mayor Morgan accepted. At 10:25 AM, Mayor Morgan gave a five minute recess. At 10:30, the meeting was brought back to order by Mayor Morgan and for the sake of others in attendance not involved in the Board of Adjustment Hearing, the meeting moved to Item number IX. A. IX. Public Hearing A. Application for Development Approval 1. Clarification of amended Landscape Plan at 3400 Polo Drive, Gulf Stream, Florida, which is legally described as Lot 10 & N 50' of Lot 11 in Polo Cove Subdivision. Town Manager Dunham stated that at the last commission meeting there was confusion as to whether the plans called for the two Royal Palms to be removed or leave them where they presently were planted. Town Manager Dunham felt the plans should come back to the Commission since after speaking with Ms. Smith, the Palms were actually going to be removed. Maureen Smith then described to the Commission that when the changes had to be made to the circular driveway to keep the existing Ficus Tree, she had to re -work the landscaping. She explained that Royal Palms are self -shedding and will smash anything under them when a palm frond falls and can cause a lot of destruction. Minutes of Town Commission Regular Meeting & Public Hearing Held June 14, 2019 @ 9:00 A.M. Ms. Smith also pointed out that the homeowners wanted a lawn area and these Royal Palms were right in the middle of the lawn, as well as safety issues if the children were out playing and a frond were to fall. Ms. Smith pointed out there were a lot of Royal Palms that were being kept on the property and these were the only two being removed. Commissioner Lyons commended Ms. Smith on the changes made to keep the Ficus Tree but stated that the Code said you cannot remove large trees but you can move them to another location in Town or on the property. He asked if they could be moved and Ms. Smith said that these two Palms have grown attached to each other and really could not be moved. In trying to find balance, he suggested putting two more decent -sized Royal Palms on the property somewhere. Ms. Smith stated that the property owners asked her to say that 22 trees were staying on the property, five trees are being re -located on the property and only 16 being slated for removal and then brought out a letter from them that they asked her to read to the Commission since they couldn't be present for the meeting. Commissioner Lyons said that those statistics should be a qualitative description and not quantitative. Ms. Smith read the letter (see attachment). Mayor Morgan stated he would like to hear from Commissioner Orthwein and Vice Mayor Stanley since they live in the Core. Commissioner Orthwein stated she thought it was a big win that the Ficus Tree was staying as opposed to the two Royal Palms that were hooked together and there were other Royal Palms on the property. She then added that maybe Ms. Smith could put two different trees in their place to accommodate. Vice Mayor Stanley said he agreed that the two Royal Palms were jammed into the middle of the lawn and understood that the property owners didn't like the Royal Palms and didn't want them, but if Ms. Smith could find two smaller Royal Palms to put on the front of the property, he thought that would satisfy the Code and Commissioner Lyons. He then asked Ms. Smith if she had to replace the two Royal Palms right now, what would she put in that would also please the property owners. She stated she thought Foxtail Palms looked like miniature Royal Palms. Vice Mayor Stanley added they were looking for the canopy to be on the front of the house and not the back. He then made a motion that the two existing 60+ foot Royal Palms may be removed by the applicant, however, pursuant to the Code, the applicant must plant two replacement trees in the front East yard with places to be determined by the Staff and the applicant. The motion was seconded by Commissioner Orthwein with all voting AYE at roll call. At this point, the Board of Adjustment Hearing reconvened. VIII. Board of Adjustment Hearing A. Application for Appeal of Final Action of Planning and Building Administrator 1. Denial of permit to construct a "promenade" at 23 Hidden Harbour Drive. 2. Violation of 2013 Settlement Agreement w/Martin O'Boyle. Town Attorney Randolph questioned Town Manager, Greg Dunham, who stated he had been a Town Manager for 35 years and that one of his responsibilities as Town Manager was to interpret Town Codes and added that he had also been a Zoning Administrator. Town Manager Dunham stated that he stood by the opinion in his letter dated May 3, 2019 due to the fact that the application was in violation of the Town's Ordinance to docks because it didn't meet the side setback requirements. He also agreed with Town Clerk Taylor's decision to deny the application. Mayor Morgan then swore in Town Clerk, Rita L. Taylor. Town Attorney Randolph asked Town Clerk Taylor how long she had been a Clerk in Gulf Stream to which she answered 30 years. Town Attorney Randolph then questioned Town Clerk Taylor. He asked if she served as Building Official, to which Ms. Taylor answered that you wear a lot of hats as Town Clerk and although she hadn't held the title of Building Official, she did review plans and permits that were submitted to the Town and she approved or denied them according to the Code. Attorney Weires then questioned Town Clerk Taylor as to the definition of docks vs. decks, the Settlement Agreement and why she had denied Mr. O'Boyle's Minutes of Town Commission Regular Meeting & Public Hearing Held June 14, 2019 @ 9:00 A.M. application to which she stated that it did not meet the requirements described in the Code. Attorney Weires then read from Exhibit C. Town Attorney Randolph then spoke to Martin O'Boyle's second point in the hearing, which was regarding the violation of the 2013 Settlement Agreement and he noted that the Commission had been provided both the Settlement and Development Agreements. He pointed out that Mr. O'Boyle is relying on paragraph 35, page 14, of the Settlement Agreement's "Reservation of Rights". At 11:30 AM, the Court Reporter asked for a two -minute break to which Mayor Morgan gave. Once back in session, Town Attorney Randolph continued saying that Mr. O'Boyle's primary point is that he can do "anything on the property" according to the Reservation of Rights. Town Attorney Randolph explained that Mr. O'Boyle took that paragraph in isolation without giving consideration to the. other paragraphs, specifically the next paragraph on page 15, where it states "The Development Agreement will: (a)include a survey provided by O'Boyle, which survey shall provide a building envelope for the Property (as designated by O'Boyle pursuant to the preceding paragraph). He added that Mr. O'Boyle was agreeing to the description of the property as described in paragraph 36, which talks about "the area between the Intracoastal waterway, the private roads and the common property line to the west." Town Attorney Randolph brought the attention to page 3, number 3 where it stated "which Development Agreement shall contain terms consistent with the terms set forth herein". He said that Mr. O'Boyle was arguing that the terms of the Development Agreement are inconsistent with the Settlement Agreement yet they entered into the Agreement stating that the Development Agreement shall be consistent with the terms set forth herein and Mr. O'Boyle signed the Development Agreement. Town Attorney Randolph thought it also important to look at paragraph 19 of the Development Agreement which said "Attached hereto and incorporated herein as Exhibit C is a copy of a Survey which Survey provides a Building Envelope of the Property (as defined in the Settlement Agreement)". He added that there was nothing inconsistent between paragraph 35 and the Development Agreement and what's called for in paragraph 36. Town Attorney Randolph stated that Mr. O'Boyle said there were Conflicts in paragraph 18, but he suggested that there were no conflicts between the Development and Settlement Agreements. Town Attorney Randolph pointed out that Mr. O'Boyle was making it look like, in Exhibit C, that anything can be built over the water, but that is not what it said. It carved out the provision which talked about anything being allowed to be built in the crosshatched area, because it says anything that is built over the water is going to have to be approved by the Town, i.e. in compliance with Town Code, he added. Town Attorney Randolph told the Commission that all they needed to do was compare the Settlement Agreement to the Development Agreement, realize the two were tied together, they go hand in hand and there is nothing in conflict with them. If there were, Mr. O'Boyle wouldn't have signed it. Attorney Weires discussed the interpretation of the Settlement and Development Agreements. He then deferred the remainder of his time to Mr. O'Boyle to speak. Mr. O'Boyle then spoke. Deliberation was then made in the public as to whether the appeal should be sustained or over -ruled. Mayor Morgan commended both counsels for putting forth legal and factual arguments in their cases. There was a consensus that the Staff had been correct in determining the application was in violation of the current Code and the appeal should be denied. Vice Mayor Stanley made a motion to deny the application by the applicant for the building application as proposed based on the findings of fact that 1. in regard to the application brought before the Town that the current Town Code applies, including Sect. 66.1 and 66-369 regarding docks and 2. based on the opinion and decision of the Town Staff the application as presented by the applicant does not meet the Town Code with regard to docks. The motion was seconded by Commissioner Orthwein with all voting AYE at roll call. The Board of Adjustment hearing concluded at 12:07, at which point Commissioner Lyons had to depart for the airport and Commissioner Orthwein had to depart due to a prior commitment. Minutes of Town Commission Regular Meeting & Public Hearing Held June 14, 2019 @ 9:00 A.M. X. Reports A. Town Manager 1. Utility Undergrounding Town Manager Dunham stated that both Comcast and AT&T continue to work. There were a couple of hiccups with conduits but he thought there were only a couple of months until completion. 2. Street Lighting in Place Au Soleil FP&L called at the last minute to cancel being at the meeting, but Town Manager Dunham passed out the FP&L catalog so the Commission would have time to look through it before the next meeting. Vice Mayor Stanley asked if anyone could take the lead to which Commissioner White offered to narrow it down to three choices and the Commission agreed. 3. Obstructions in Town Rights-of-way Town Manager Dunham stated a letter from the Mayor had been sent out since the last meeting regarding stakes in the yards and as of June 14, 2019, there were 24 residents who had not complied with the letter. He suggested that a follow-up letter from himself go out to those 24 residents and then go from there based upon the successfulness of his letter. He added they had been tracking ruts in yards and suggested a few ideas in helping to alleviate this problem. He suggested installing curbs on the regularly impacted areas and showed photos of other places in Town that have the curbs. Town Manager Dunham had discussed these options with Rebecca Travis at Matthews Engineering and they would help engineer so it wouldn't have any consequences on the CIP. He gave examples of different types of curbs and the positive/negative effects to each one. The Commission agreed to experiment with an area in Town. 4. The Fire/Rescue Contract with Delray Beach has been signed by both parties. B. Architectural Review & Planning Board 1. Meeting Dates a June 27, 2019 at 8:30 A.M. b. July 25, 2019 at 8:30 A.M. c. No August meeting d. September 26, 2019 at 8:30 A.M. Mayor Morgan called attention to these dates and stated there was not going to be a quorum for the June 27, 2019 meeting so it was probably going to be rescheduled to another date. C. Finance Director 1. Financial Report for May 2019 Commissioner White had a question about General Liability. CFO, Rebecca Tew explained that there was no formula for allocating between the General Fund and the Water Fund for the liability so since the Town is doing water infrastructure, she took a quarter of the year and put it in the Water Fund because of asset allocation. Vice Mayor Stanley asked if they were then showing an increase variance in the General Operating Fund. CFO Tew explained it was just an allocation of dividing up the General Liability costs between the two funds. D. Police Chief 1. Activity for May 2019 Chief Allen asked that his report be accepted as presented. The Mayor declared both reports accepted. IX. Items for Commission Action. A. RESOLUTION NO. 19-03; A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, ESTABLISING A FEE FOR THE INSPECTION AND TESTING OF BACKFLOW PREVENTION DEVICES, AND AUTHORIZING THE MAYOR OF GULF STREAM TO SIGN AN AGREEMENT WITH BUCKEYE PLUMBING INC., WHICH AGREEMENT PROVIDES FOR BACKFLOW PREVENTION DEVICE INSPECTION AND TESTING; PROVIDING AN EFFECTIVE DATE. PRESENTED FOR ADOPTION JUNE 14, 2019. Vice Mayor Stanley made a motion to approve Resolution No. 19-03 as presented. Commissioner White seconded with all voting AYE at roll call. B. Bid Award for Repairs to Place Au Soleil Gate House. Minutes of Town Commission Regular Meeting & Public Hearing Held June 14, 2019 @ 9:00 A.M. Town Manager Dunham stated there were three bids with a variety of monetary ranges and explained that the low bid was from a Palm Beach Firefighter who started this business and has low overhead thus the difference in price. Vice Mayor Stanley made a motion to approve C. Knowles Construction at a price of $8,450. Commissioner White seconded with all voting AYE at roll call. C. Request to place an office container & portable toilet at 3377 N. Ocean Blvd.-Seabreeze Building LLC. Vice Mayor Stanley made a motion to approve the installation of an office container and portable toilet at the construction site as presented. Commissioner White seconded with all voting AYE at roll call. D. Items by Mayor & Commissioners Mayor Morgan stated that the last request was a de minimis and minor activity request that should be handled at the staff level and asked for a consensus to allow staff to view the Code for other de minimis and minor requests and bring them back to the Commission as a Code change to give that authority to staff. Vice Mayor Stanley suggested that the Town could also have a Consent Agenda. Staff Attorney, Trey Nazzaro said he would have something for the Commission to look over at the next meeting. Commissioner White said Town resident, Julio Martinez, had asked her to bring up using reflectors on the roads as he was concerned about his lawn. Town Manager Dunham had one to show her, but said they were hard to see during the day and trucks would run over them and probably wouldn't see them. Mayor Morgan said the residents would not be able to install them. 7 at 12:55 P.M.