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2008.12.02_TC_Minutes_RegularTOWN OF HIGHLAND BEACH MINUTES OF TOWN COMMISSION MEETING REGULAR MEETING Tuesday, December 2, 2008 1:30 P.M. Mayor Jim Newill, CPA called the Regular Meeting to order in Commission Chambers at 1:30 P.M. CALL TO ORDER: Roll Call: Members present: Mayor Jim Newill, CPA; Vice Mayor Miriam S. Zwick; Commissioner Doris M. Trinley; Commissioner John J. Sorrelli and Commissioner John J. Pagliaro. Also present: Town Attorney Tom Sliney; Town Manager Dale S. Sugerman; Town Clerk Beverly M. Brown; and members of the public. Pledge of Allegiance: The Pledge of Allegiance was given, followed by a moment of silence in honor of members of the military, both living and deceased. Civility Pledge: Town Clerk Brown recited the Civility Pledge for the Commission and public. 1. ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA Town Mana e~ r Su eg rman requested that the Commission under New Business remove Item # 6B -Consideration of a proposed settlement in the case of McCray vs. The Town of Highland Beach; as a conclusion has not been reached. MOTION: Vice Mayor Zwick -moved to remove under New Business Item #6B - Consideration of a proposed settlement in the case of McCray vs. The Town of Highland Beach; seconded by Commissioner Sorrelli. No Discussion. Motion approved by a 5-0 Voice Vote. 2. PUBLIC COMMENTS AND REQUESTS Joe Yucht -Boca Highlands Report from the Boca Raton Airport Advisory Authority: Airport Authority conscious of noise. The noise in the area around the airport is a lot higher in decibel numbers than the actual airport noise. Ambient noise is getting louder and the airport noise is lower due to the Town Commission Minutes December 2, 2008 Page 2 of 18 phasing out of the older airplanes. Have spent $3.6 million to insulate 44 homes in the glide path area. Property owners are happy with the results. Emanuel Roffman -Brae Mar Isle Shorefront and beaches belong to the public. There are plenty of public beaches in this area. Another beach park is lack of financial responsibility. It is an unnecessary tax drain on the residents of Palm Beach County and Highland Beach. Libby Garceau -Sea Ranch, Boca Raton What will be the cost to insulate us against the motor cycles and additional traffic that will be created by this proposed park? Barbara Stone -Boca Highlands Most disappointed in Highland Beach Commission, Palm Beach County Commission and the Boca Highlands Board. They all allowed the trees to be removed from the Milani Park parking lot and no one thought of the environmental issues. It has created a swamp with wild animals and mosquitoes and is now a truck stop. The people in Boca Highlands are the ones suffering. You all have to get together and iron out the problems. 3. PRESENTATIONS None 4. BOARDS AND COMIVIITTEES A) Board Correspondence • None B) Board Action Report • Read into the record by Town Clerk Brown. C) Board Vacancies • None D) Monthly Board Meetings -read into the record by Town Clerk Brown. • Light Up the Holidays -Sunday -Dec. 7~' - 5:30 P.M. • Beaches & Shores Advisory -Dec. 9th -Regular - 9:30 A.M • Planning Board -Dec. 10th -Regular - 9:30 A.M. • Board of Adjustment -Dec. 16th- Regular- 9:30 A.M. • Code Enforcement Board -Dec. 17th -Regular - 9:30 A.M. • Cultural Advisory -Dec. 18th -Regular - 9:30 A.M. Town Commission Minutes December 2, 2008 Page 3 of 18 5 PROPOSED ORDINANCES AND RESOLUTIONS: • None 6. NEW BUSINESS A) Awarding a Contract for Landscaping Maintenance and Authorizing the Mayor to Sign the Same Town Mana eg r Su eg rman -Each year, the Town contracts for landscaping maintenance services, including mowing, trimming, edging and clean-up, up to 36 times per year both at the Town Hall complex and within the right-of-way areas that the Town owns and controls on some of the side street islands. We recently went out to bid for this work. Model Row, Inc. is both our current provider and the lowest most responsible/responsive bidder. Therefore, I recommend that the Commission authorize the Mayor to sign the contract for landscaping maintenance, awarding it to Model Row, Inc., in the amount of $45,060.00. MOTION: VICE Mayor Zwick moved to authorize the Mayor to sign a contract for landscaping maintenance, with Model Row, Inc., in the amount of $45,060.00; seconded by Commissioner Pa liaro. Motion approved by a 5-0 Voice Vote. B) Removed from Agenda C) Public Hearing -Cam D. Milani Park -Special Exception Application -Palm Beach County Mayor Newill stated the sequence of order on how the Public Hearing would be held. Town Clerk Brown swore in all those who intended to testify. Tom Baird -Land-Use Attorney representing the Town of Highland Beach Stated he is representing the Town in regards to the Milani Park Special Exception Application by Palm Beach County. For the record, he submitted the Curriculum Vitae's for the Town's expert witnesses: Steven R. Colbath, P.E. Senior Engineer/Project Manager of Carnahan, Proctor & Cross, Inc.; Steven A. Harrison, P.G., Director, Environmental Services of Sphere Environmental Services, LLC; Paul Jones, RPA, Senior Vice President/Archaeologist -Florida History, LLC; and Attorney Thomas J. Baird, P.A. I would like to address an issue that the County previously presented regarding the history of the acquisition of the property. It was represented that the property was acquired with funds from a Beach Bond Referendum and that the property had to be used for beach access purposes. This parcel was not part of that referendum. The acquisition occurred with capital improvement funds through the Department of Recreation and the Florida Sunshine Fund. Town Commission Minutes December 2, 2008 Page 4 of 18 The Sunshine Fund loans money to governments within Florida for the purchase of recreation properties. The only stipulation is that the money had to be used for the development or purpose of a park. The Resolution of the County Commissioners also stated that it had to be used for park purposes. I will speak later as an expert on planning and zoning issues, but first would like to present Dr. Jones who will speak of the archaeological significance of the site. Paul L. Jones, RPA -Vice President of Florida History, LLC. Mr. Jones stated he is both a registered professional archaeologist and is currently the President of the Florida Archaeological Council. He has had exceptional cultural resource management and academic experience in southeastern coastal and interior archaeology, and has directed as project manager and administrator of over 1,500 archaeological, historical, and environmental projects throughout the State of Florida and the southeastern US. I also have extensive archaeological management and supervisory experience from prior work as Director of the University of Alabama, Moundville Archaeological Park; as former Vice- President and co-owner of Southeastern Archaeological Research, Inc. (SEARCH), and Pan- American Consultants, Inc (PCI). I hold both Bachelors and Masters Degrees in anthropology and am a Ph.D. candidate in archaeology at the University of Florida. My dissertation topic focuses on site distribution data for coastal Florida, compiled during atwo- year survey. My doctoral minor is in cultural geography with an emphasis on historic and prehistoric landscapes. The Milani Park project area is a Native American earthen and shell monument specifically protected under Chapter 872.02, Florida Statutes. Based on the analysis in my report, the State of Florida has determined that the site is potentially eligible for the national Register of Historic Places and should be protected and studied. "The Spanish River Complex in Highland Beach and Boca Raton is one of the largest aboriginal localities in southern Florida, with four major black earth and oyster shell middens extending north-south along the coastal hammock. "- Dr. Ryan Wheeler, State Archaeologist The project area has been a focal point for human activity for thousands of years, beginning with the prehistoric American Indians who used the rich natural resources of the sea and lagoon, as well as the rock readily available for tool manufacture. European explorers, the Spanish, British, and French, sailed along the Atlantic coast, and shipwrecks have been reported in the area. In the late nineteenth century, early South Florida land developers saw the potential for growth along the coastal islands, and in the early twentieth century a colony of Japanese immigrants fished the waters around Yamato Rock. Then in the mid to late twentieth century, the Town of Highland Beach blossomed, from a population of 40 to 4,000. The Milani Park project area, the repository of thousands of years of history, is now one of the few undeveloped pieces of oceanfront property in Palm Beach County. ACI's - Cultural Assessment Survey- This survey was conducted by the County's Archaeological consultant. ACI provided a very good report on the site and indicated that the site was important and that before any work was done additional testing should be undertaken, tribes should be consulted, and a plan worked out with the SHPO's office. Additionally, and specifically, they recommended that before any fill was placed at the site Town Commission Minutes December 2 2008 Page 5 of 18 tribes be consulted and approval granted prior to placement. The most recent application from the County includes a recommendations of Bob Carr. The recommendations proposed by Bob Carr are inadequate given the current lack of consultation with the agencies, tribes, and lack of deep testing in the northern part of the site. The entire eastern part of the site is both NRHP-eligible and eligible for protection under Chapter 872.02. I have had several discussions with Ryan J. Wheeler, Ph.D., State Archaeologist and Chief, concerning this project. Specifically, we have held conversations concerning if the midden was intact or had integrity, and was potentially eligible for inclusion in the National Register of Historic Places. These determinations are made by the SHPO, after review of relevant documents. At the request of Palm Beach County, the SHPO reviewed the report prepared by Florida History, LLC. The SHPO determined that the site had both integrity and was potentially eligible for the National Register of Historic places. Dr. Ryan also stated that the Milani property is just a small portion of what was a much larger site called the Highland Beach Site. At least four other sites immediately north of the east parcel make up the larger site. The other sites included in the Highland Beach Site are the Boca Snead, Boca Aylward, the Boca Raton Beach Burial Mound and the Milani property. The Milani property itself includes the Boca Weir Midden and the Boca Beekman Sites. The larger Highland Beach site measures roughly 1,668 feet north to south and 404 feet wide. This equates to 673,872 square feet. While the eastern portion o the Milani property measures roughly 313 feet north to south and 232 east to west, this equates to 72,616 square feet. A second topic was the large number of burials at the site and if this would be considered a burial tomb or monument under 872.02, Florida Statutes. An isolated burial is not considered a monument. After discussion we both agreed this was the case and the disturbance of the burials and the earthen and shell monument to the dead would fall under 872.02. This states that: (excerpts) "A person who willfully and knowingly destroys, mutilates, injures, or removes any tomb, monument, gravestone, burial mound earthen or shell monument containing human skeletal remains or associated burial artifacts, or other structure or thing placed or designed for a memorial of the dead, commits a felony of the third degree, punishable as provided ins 775,082; s775.083 or s775.084. A third topic of discussion was the County's proposed construction plans under the special exception permit. The planned construction would take place on intact midden and would represent a significant impact to the shell monument and burials contained within. Dr. Wheeler stated that he received a request from the County. to write a letter stating that this plan would be acceptable, but refused, stating that the impacts of the proposed construction would be significant based on current information, and that the future maintenance of this facility would lead to continuing disturbances of the burial mound. The last topics of discussion included the plan to build a restroom on top of Native American shell monument and Native American burials. This was discussed as both insensitive and impractical and represents the lack of proper planning for the proposed development. The other topic was the Milani Park Archaeological Management Plan (AHC 2008), which was deemed insufficient to address the impacts the proposed development or management of the site. Town Commission Minutes December 2 2008 Page 6 of 18 In February 2000, representatives of the Miccosukee Tribe met with Palm Beach County and expressed their opposition to the project as it would disturb the mound. On October 16, 2000, Mr. Steve Terry of the Miccosukee Tribe wrote to the County: "The Tribe's position is that no development should precede which disturb the Indian Mound in any shape, form, or fashion. The project has proceeded with this is mind. However, for the development to go forward, some disturbance of the mound is necessary. This has been minimalized to the greatest extent possible. While the Tribe cannot agree with any disturbance of the mound, we appreciate the great lengths which were taken to have minimum encroachment. We do not support this development as it does impact the Indian Mound." In recent conversations with Steve Terry, he still does not support the impacts to the mound or disturbance of Native American burials as proposed by the county. The Seminole Tribe is reading over the materials and will complete their response soon. They indicated that they would not agree with a restroom placed on any portion of the mound. County's proposed utilization of fill will not meet its consultant (ACI's) recommendation 6.3 "utilize fill if Native Americans concur." Even if the Native American Tribes were to concur there are questions as to whether this is the best approach to protecting deposits and minimizing impacts; posts driven into ground; compaction of fill; routes of boardwalks; location of restrooms. Please note, the Miccosukee Indians will do an onsite visit site on December 19, 2008. In response to questions previously asked by the County on March 2, 2008; Dr. Jones made the following replies and comments to be included in the official record: Presence of Human Remains (HR): First County Question (HR): How does the archaeological consultant know that there are burials let alone intact burials present at the site? Archaeolo isg t Response: 1) On August 8, 2000, Ryan J. Wheeler, Ph.D., the State Archaeologist wrote concerning 8PB56, the Milani Beach Parcel "There are still significant archaeological strata at the site, including features and deposits related to the village or community that once occupied this place, as well as human remains that represent the burial of the dead." Based on our field testing, the presence of human bone within a burial mound context, including a fetal or infant burial, clearly indicates a burial. The presence of fetal cranial remains are typically too fragile to remain intact in any other depositional method other than a purposeful burial. In addition, other excavations at this site (8PB9636: The Spanish River Midden and Mound Group) by Furey (1972) a large number of burials were recovered. In addition, the Weir family noted that "when an area near the southwest corner of the house was excavated for a septic tank a number of burials were uncovered (Furey 1972:69)." Levy (1981) reports on excavations from 8PB11 (now the northern part of 8PB9636), the excavation of 90 burials, the results of which were presented at the 1981 Florida Academy of Sciences Annual meeting. In 1999, ACI was contracted by Palm Beach County, and recommended that; "a professional archaeologist should be consulted in regard to planning.....In this way, impacts to the midden can be minimized and human remains can be carefully and respectfully left in place (ACI 1999)." Town Commission Minutes December 2 2008 Page 7 of 18 Second County Question (HR): It is true that there is one adult toe bone and some fetaUnewborn cranial remains present in the midden deposit but this location is the only place where human remains were recovered during this investigation? This location is known and can be avoided. Archaeolo isg t Response: Our testing methodology consisted of twenty- eight 50-x-SOcm shovel tests. This is a total of seven square meters of soil tested. There is a total of 6,975 square meters of area on the eastern parcel. At an average of two burials per 7 square meters or, 1 burial per 3.5 square meters, there would be a potential of 1,990 additional burials at this site. We cannot determine if there are several hundred or several thousand at this point. Avoidance of untested portions of the eastern parcel is recommended as is avoidance of the known burial locations, and all portions of the archaeological site on the eastern parcel. Third County Question (HR): It is critical to note that the presence of human remains on the property does not negate the ability of the county to develop the property. Archaeologist Response: This is true, and is not in dispute. With unlimited funds, almost anything is possible. However, the Town of Highland Beach maintains that right to insure that irreplaceable portions of Florida's heritage that are located within the limits of the Town will be appropriately protected. This property is considered significant by the State of Florida, the Miccosukee Tribe of Indians (a federally recognized tribe), and all consultants and professionals who have performed investigations on the property since 1972. The County Ordinance that protects Archaeological Properties; Article 9 Archaeological and Historic Preservation, specifically, Sections 2.A.2 Parcels with Previously Unidentified Sites, requires all work to cease when one or more archaeological, human remains, or vertebrate fossils are found on a parcel during development, all further development shall cease and the following procedure shall apply [Ordinance 2005-002]. The county archaeologist must review the finds and make a finding. Each time human skeletal remains are found, Florida Statutes 872.05 shall apply, requiring consultation with the state archaeologist and affected tribes. This process may be lengthy and may occur repeatedly during construction. The other options are a Memorandum of Agreement and excavation of all areas to be impacted. If a County Certificate to Dig is authorized, the Section 3.A.3.b of the County Code would apply. It states: If the property is determined to contain or potentially include a site of significant archaeological value, the Historic Resource Review Board (HRRB) or the Department shall issue a Certificate to Dig with conditions that are deemed necessary to protect or mitigate any part of the site deemed to be of significance, including conditions regarding development design. In order to protect archaeological resources of significant value, the HRRB or the Department may require the applicant to do one or more of the following as part of receiving the Certificate to Dig: [Ord. 2005-002]: 1) Preserve part or all of the archaeological site within open space of the development; 2) Redesign the Development to accommodate preservation of all or a portion of the archaeological site [Ord. 2005-002]. Fourth County Question (HR): If human remains are found and the state is in agreement, the remains can either be removed from the property or reburied on the property in a location that will not be impacted in the future? Archaeologist Response: To some extent this is true. Any exhumation of burials or reburial of human remains will need to be done under the auspices of Chapter 872, Florida Statutes. This will require an approved plan completed in Town Commission Minutes December 2 2008 Page 8 of 18 consultation with the State Archaeologist and the Florida SHPO. This plan may include imitative measures as well as excavation of significant portions of the midden. Fifth County Question (HR): Even the remains from this investigation were reburied in the shovel test location from which they came? Archaeologist Response: It was not anticipated that any further development would take place where the burials were located. If there is, these remains would need to be relocated in consultation with the State Archaeologist. Let me restate: If human remains are present - 1) Statutory protection -what this means - Chapter 872; 2) Because of human remains -entire site goes to State for its assessment; 3) Although two remains found in shovel tests, by extrapolation 200 - 1,900; 4) Clearly a Native American burial ground; 5) Contacted tribes -requested no disturbance of burial grounds; 6) County's proposal to place Restrooms on burial grounds does not accord Native Americans - "treatment and respect based upon common human dignity" as is legislative intent of §872.05, F. S. Second Question -Integrity of Site (IoS): First County Question (IoS): The Milani property is just a small portion of what was once a much larger site called the Highland Beach site. At least four other sites immediately north of the east parcel make up the much larger site. The other sites included in the Highland Beach Site are the Boca Snead Site, Boca Alyward, The Boca Raton Beach Burial Mound and the Milani property. The Milani property itself includes both the Boca Weir Midden and Boca Beekman Sites. The larger Highland Beach site measures roughly 1,668 feet north to south and 404 feet wide. This equates to 673,872 square feet. While the eastern portion of the Milani property measures roughly 313 feet north to south and 232 east to west, this equates to 72,616 square feet. While the Milani property by itself may have some archaeological integrity, when the area is viewed within the context of the larger Highland Beach Site, the Milani property only makes up 9.28% of the actual site area. This means that 90.7 % of the larger site has already been adversely affected by previous development. Given this fact, the archaeologicaUscientific value of the Milani property by itself is questionable at best? Archaeolo ist~Res~onse: A member of the Town of Highland Beach board at the last meeting, pointed out that it seemed to him that this should make it more significant, not less. This has been successfully argued and proved numerous times by researchers in the past at sites not just in Florida but throughout the world. As the Chief of the Florida Bureau of Historic Preservation (2008) pointed out concerning the Milani Park Project area in response to this argument by the County: Johns River Valley in which she points out the resilience of midden mound sites and convincingly argues their ability to yield important information even if significantly disturbed: The site, therefore, appears to be eligible to be considered for listing in the NRHP under Criterion D, because of its potential to yield important information on a wide variety of topics. Such research would also provide ample opportunities for interpretation to the public. The Division of Historical Resources would be happy to assist the County in trying to identify ways to use the site as a park while taking measures to preserve its historical and archaeological resources. In the County's March 5, 2008 letter, the County suggests that because Milani is only 9.28% of a larger site, its archaeological and historic value is "at best questionable." Field survey documented the presence of significant archaeological resources. Every effort should be Town Commission Minutes December 2, 2008 Page 9 of 18 made to protect remaining deposits and minimize impacts. This statement by County staff is contrary to the findings of : 1) Its own consultant, - ACI; 2) The SHPO response to County Staff Archaeologist (Chris Davenport); 3) State Archaeologist (Dr. Ryan Wheeler) and all previous studies done on this property Second County Question (IoS): Next on Page 12, Figure 10, 1968 Aerial shows canals had heavily bisected the western side of the property. This process would have greatly impacted any historic resources that would have been present in the area? On the eastern side of the property, one or possibly two homes have been built. These buildings would have greatly disturbed the soils in their respective areas? On the same page, figure 11 shows the property as it is today. In 2004, the western area was covered with exotic plants, mostly Australian Pine, which was subsequently removed in accordance with approved permit. Archaeologist Response: Florida History, LLC indicated no impact to culturaUarchaeological resources on the western property. Tree removal and the removal of exotic species would represent a significant impact to the eastern portion of the site and would intentionally impact human burials. With regard to the buildings on the eastern portion of the property, the impact of the structures on the eastern property boundary was minimal with the exception of the swimming pool. Many portions of the site were actually protected by being encapsulated under driveways and foundations. Third County Question (IoS): Conclusion, site impacts from construction will be minor and only require occasionally monitoring (condensed)? Archaeolo isg_t Response: The eastern property contains one or more significant, NRHP-eligible properties that require significant additional testing prior to any agreement involving the Special Exception and Site Use Plan Approval Request. We would request at a minimum, prior to any additional consideration of the above request: 1) Concurrence from the County and approval from the Town, that this is a significant, NRHP -eligible property that should be reviewed under Chapter 267 and 872, as part of any conditional approval. 2) An executed formal Memorandum of Agreement with the SHPO and the tribes stating specifically what steps will be taken to protect this significant property. 3) Active involvement of the tribes prior to any work being approved 4) A schedule for and completion of all work, including additional testing in all areas of proposed construction, access or use, and the complete design and plan submittal for an archaeological and environmental park. 5) Methodology for all monitoring in areas outside of any cleared tested areas, or in areas of deep deposits. 6) Approval of methodology for all planned vegetation removal. 7) Long term maintenance plan and training of County on staff at this facility on identification and avoidance of archaeological resources. 8) Specific plans and Town approvals for all underground utilities, drainage, and any other ground disturbing activities. 9) Addressing and approval of all seven recommendations of the survey as part of the park construction. 10) Approval of type and design of all signage as previously requested by Highland Beach staff. 11) Restrooms be eliminated from Eastern parcel; 12) Submit to State for Compliance with F.S. §267 & 872 Project is not fully planned out yet. Will give additional information when final plans are formulated. Town Commission Minutes December 2, 2008 Page 10 of 18 Cross Examination of Dr. Jones: Assistant County Attorney Amy Petrick -You have indicated that Dr. Wheeler was requested by the County Archaeologist to write a letter and he refused. Reply -Correct. Was that in writing? Reply - No. Verbal. When? Reply - November 26, 2008. Ms. Petrick showed a letter dated 1/31/2000 from Maria Formoso, and submitted as part of the record. Dr. Jones stated that there is a 2008 letter from SHPO stating that this is a eligible site. Ms. Petick -Were you aware of this letter when you talked to Dr. Wheeler last week? Reply -Yes. Ms. Petrick -The second page of the letter indicates that some of the sections on the east side are ideal for rest rooms. Reply - It does not address the insensitivity issue. In addition, there is now a problem with the coastal set backs. Ms. Petrick questioned Dr. Jones about a drawing that she presented. Ms. Petrick asked some additional questions relating to Dr. Jones testimony. Commissioner Trinley -Does the County itself have an ordinance to protect archaeological sites? Reply -Yes. Steven R. Colbath, P.E. of Carnahan, Proctor and Cross, Inc. Civil Engineer registered in both Florida and Connecticut, with extensive experience in storm water. Firm was retained to review the Palm Beach County Special Exception application; specifically the storm water drainage, water management of the parking lot, and the development of the eastern portion of the site.. From the data presented and from the site inspection, we offer the following comments: 1) Section 6 of the Special Exception Report contains a drainage statement by CH2MHi11 dated 03-04-08. This statement outlines how storm water quality standards will be met on the site. There are still a few issues regarding storm water management .that have not been addressed: a) There is insufficient geotechnical data to determine the feasibility of constructing dry detention as outlined in the drainage statement. Quite concerned about the water quality issue before discharge. Sufficient room needs to be available in the parking lot to accommodate water quality issues required by SWFMD. This issue will need to be addressed at the time of ERP review, but may impact the layout and grading of the parking lot. B) Is there sufficient storage volume on the site to retain a 25 year 3 day storm without increasing discharge into neighboring properties? Again, this issue will need to be addressed at the time of ERP review. But the existing site grades around the wetland area may allow flow from the site to encroach on neighboring properties during a storm event. This may need to be addressed with a perimeter berm, which will in turn impact the wetlands. C) There is no agreement on a storm water outfall. The lack of outfall may cause the parking lot to be flooded for a length of time after a storm. The SFWMD required that there be no impact to facilities in a 5 year 24 hour storm. No information was provided to evaluate the depth, extent or duration of flooding. 2) As noted above, the issue of the drainage easement has not yet been resolved. The encroachment of the neighboring development on the west side of the parcel also has not been resolved as yet, with the potential impact or buffer areas and parking layout. 3) The plans have some limited information as to site grading. From the information provided, we can make the following observations: a) The grade difference from the street to the lifeguard & restroom facility to the east is approximately 9.0 feet. The access from the "gate" shown on the R/W line just west of the restrooms to the front door of the building is about a 2:1 grade, requiring stairs, Town Commission Minutes December 2, 2008 Page 11 of 18 not a walk, unless considerable fill is brought into the Ocean Blvd. shoulder area. B) The restroom is located 10' east of the R/W line and 9.0' above the road and approximately 10' above the existing grade. It is not made clear how this will be accomplished. C) The 10' wide walkway system will need to be a ramp from the paver section on the south end to the area of the interpretive sign. As shown, the grades would exceed 8% the entire walkway length. 4) The guardhouse is not accessible. The County proposed to provide accessibility at a later time if requested. 5) This plan should be evaluated by the Fire Marshall as to turning movements and clearance for fire response vehicles. 6) Utility connections are not shown for the restroom. Cross Examination of Steven Colbath, P.E. -Assistant County Attorney Amy Petrick Not clear on some of your statements: 1) Guardhouse is not accessible? R Plv - ADA accessible. 2) Isn't the GEO technical data dealt with at later stages of permitting i.e. - after zoning approval has been given? Are engineering solutions not viable? Reply - T'here is a great amount of impact to the wetlands on the site which will create problems down the road. Need more clarity on the drainage issues. 3) Have you undertaken any steps to start a drainage plan? R plv - No. Steven A. Harrison, P.G.; Director -Sphere Environmental Services, Inc. Stated he was a Professional Geologist and had been in the business for over twenty years. His evaluation addressed concerns associated with protected and/or endangered flora and fauna species including sea turtles, gopher tortoises, wetlands, mangroves, sea grapes and sea grasses, coral reefs, storm water and sanitary sewer impacts, historical usage, erosion of beach face and coastal dune areas, to determine if there were any problems. We forwarded our concerns to the County and they provided a written response to Sphere's comments in a letter dated March 5, 2008. We then forwarded a letter with some additional comments and they responded to these comments on November 17, 2008. In addition to permits being issued by the Army Corp of Engineers and the Environment Protection Agency, items of concern and recommendations that need to be addressed prior to any development permits being issued: The jurisdictional wetland determination for the subject property expired in 2005. As a valid permit has not been provided, the County does not have a valid permit from PBCDERM and/or the USACOE for the wetland area identified at site. The County should provide a valid permit and appropriate documentation for the wetland area. Stormwater drainage of the parking lot was discussed in the concurrency statement provided to indicate that the water will be collected through manmade structures (catch basins, detention ponds, .etc.) and directed to the wetland area. The storm water drainage was not a component of the jurisdictional approval and this should be incorporated into the permit. The County should provide additional information regarding this issue. The western portion of the site was reported to been utilized for temporary staging of highway construction materials and equipment associated with road improvement activities along AlA. The County should provide adequate documentation that the soil and groundwater quality beneath the site has not been adversely impacted by these activities. Exotic plant removal has not yet been performed within the mangrove swamp as suggested in the 1999 report other than the Australian pines within the southern portion of the western parcel; therefore, additional exotic species and opportunistic species (cat tails) have become more prevalent in the mangrove swamp. Exotic removal is critical to maintaining native plant Town Commission Minutes December 2, 2008 Page 12 of 18 communities in the entire area. The County should provide an update to the removal and replanting plan. Exotic removal is critical to maintaining native plant communities in the entire area. The County should provide an update to the removal and replanting plan. This area of Florida's coast is a highly populated sea turtle nesting community. The upper beach is a nesting area for endangered and threatened sea turtles; access to this area by the public would likely be highly disruptive of any nests. Turtle nests need to be properly protected, including lighting policies established by the State of Florida as identified in the development plans, and by Town Code. Beach cleaning by mechanical means within the narrow strip of beach will be limited during nesting season to prevent possible damage to the nests (Florida Beach & Shore Preservation Act, Florida Statute 161). The presence of sea turtle nests will further limit the area of available beach. The County should provide adequate documentation that sea turtle nests will be properly protected. Utilization as a public beach will result in the accumulation of trash and debris that can damage the beach, intertidal zone and the submarine environment. The limited available space will require that beachgoers utilize areas close to the waters edge where trash can enter the marine environment quickly. The County should provide adequate documentation that trash and debris can be properly managed within the limited beach area. Additional research should be performed to determine if the former home within this parcel utilized an underground storage tank (UST) for heating oil that may still be present. The County should investigate the property and property records to determine if former oil tanks were utilized on-site. If present, or previously utilized, a tank removal and/or sampling and analysis should be performed to ascertain the condition of the subsurface relative to any petroleum impacts. Assistant County Attorney Amy Petrick had no questions for Mr. Harrison. Attorney Tom Baird Assistant County Attorney Amy Petrick stated she objected to Tom Baird being both an expert witness and an advocate. Atty. Baird stated his work involved bringing all the Town's reports together not as an advocate. Atty. Petrick -You have been involved in the cross examining . It is the Counties position that you are an advocate for the Town. Attorney Baird - I received my Master's Degree from Florida Atlantic University in Growth Management and Urban & Regional Planning. I was the Regional Planner of the Treasure Coast Regional Planning Council from 1978-1982. Responsible for the review and analysis of all local government comprehensive plans pursuant to Chapter 163, F.S. and all developments of regional impact pursuant to Section 380.06 F.S., Graduated from Nova University for the Study of Law in 1984 and worked as an Assistant County Attorney with Palm Beach County. Have been a certified planner since 1993; past president of American Planning Association; and my law practice specializes in zoning and land use cases. Would like to address some of the issues raised by the County in their statement of compliance that was submitted with their application. The Town's Comprehensive Plan notes the demand for beach access, and is specific in that it states: The development of a public beachfront park with beach access by Palm Beach County near Jap Rock reef has been proposed and will meet the standard requiring of one public access per 25,000 Town Commission Minutes December 2, 2008 Page 13 of 18 population. The Town will cooperate with Palm Beach County in providing a public beach access location. Such cooperation shall include assisting with the provision of public services and facilities to the site and coordination of security and other operation requirements of the facility through an interlocal agreement. Included in the submittal was a memo from Assistant County Attorney Leonard Berger dated May 9, 2008. He states: "The Town's land development regulations also require its development orders to be consistent with its comprehensive plan. As such, a development order that prohibits the park from allowing public access to the water for swimming and other recreational purposes violates the Town's own comprehensive plan." I disagree. There is an element of objectives and policies in the Town's plan. That element states the only historic resources in the Town are associated with a cluster of sites to be an old Indian settlement in the vicinity of Jap Rock reef near the southerly Town limits. All sites were determined to contain collections of various Indian artifacts, bones, and pottery shards. This is believed to be a burial ground. The plan goes on to say that the County expects to develop this area, but 1.3 of the Town's plan states that it will preserve this historic area. Mr. Jones in his report has stated that there are significant natural resources on the site that need to be protected. Took a look at the County's Comprehensive Plan and they also have a historical element in their plan. In addition, it states that if any County property that has a known historic resource located on it, the county shall notify the Historic Resources Board. Do not know if they have done this. If this site is eligible for national designation, one would assume that it is eligible for Palm Beach County designation also. Yet, we have not heard anything from the County that they are following their own code. Mr. Baird distributed additional information on: Coastal Management/Conservation Element Center; Recreation and Open Space Element; and Intergovernmental Coordination. Prior to issuing the special application, the Commission must determine the following: 1) compliance and consistency with comprehensive plan; 2) consistency with the Town code and permitting regulations; 3) does it serve the public health and welfare of the residents; 4) compatible with the Town; 5) purpose and intent in harmony with the Town development; 6) does it have adverse impact on the Town's development; and 7) does it have an adverse impact on the Town's natural resources. If you feel all the answers are complete, then you will adopt a resolution to issue a special exception with conditions. At the last meeting we submitted a list of questions to the County that still need to be answered: 1) What are the geographical boundaries of the South County District? 2) Does the County beach parking spaces include all the municipalities in the south county district? 3) What are the dimensions of the kiosks? How many? Where are they located? 4) What is the break down of the square footage between the rest rooms and the life guard areas? 5) What will be the method of placing fill on the site? 6) How. is the fill going to be compacted on the site? 7) Will the County provide a signed easement for the mangrove swamp area? Town Commission Minutes December 2, 2008 Page 14 of 18 8) Will the beach impact fees collected in benefit Zone 3 be used for development of this park? 9) Has the County Facility Management notified the Historical Review Board? 10) If they have, has the Historical Review Board provided comments of their assessment? 11) Has the Historical Review Board ever held any public hearings? 12) Has the Historical Review Board considered recommending putting the Park on the National Registry of Historic Places? Mayor Newill called a 10 minute recess from 3:25 P.M. to 3:35 P.M. County Cross Exam: County Attorney Petrick -You made a reference to the County Comprehensive Plan. Does this apply only to county unincorporated areas? Atty. Baird - No, it does not apply to municipalities. But, is there a different policy for County owned parks in municipalities? But there is a policy that refers to County sites that have archaeological sites. If the County Commission is going to adopt regulations, they need to follow their own regulations in municipalities. Ms. Petrick continued on with similar questions asking Atty. Barid his opinion. Commission Questions: Town Mana e~ erman - As a land use expert, describe the difference between a special exception approval by the Town Commission and a site plan approval by the Town Commission. Atty. Baird -There are basically 3 layers. 1) Zoning Code establishes uses; 2) Special Exception -some uses are allowed in some zoning but with more rigorous criteria. If you meet the criteria than you are allowed the special use. 3) Site Plan -more specific regulations -establishes set backs, landscaping etc. Mana er Su eg rman -The County's Special Exception application and their verbal representation indicates it is their intent to obtain all approvals and permits sometime after the special exception approval is given. As the Administrator of the Town Code, Section 30-36 (d) states: Town Commission public hearing. After receiving the planning board's recommendation, the town commission shall hold a public hearing in the application for special exception approval. Section 30-36(d)2 states the special exception shall be based on a determination of eleven specific criteria. More specifically: criteria i. Purpose and intent. The proposed use shall be in harmony with the general purpose of this Code and the goals, objectives, and policies of the Town; criteria i -Adverse Impact - T'he design of the proposed use and structures will minimize any adverse visual impacts or impacts caused by the intensity of the use; criteria k- Environmental Impact -The design of the proposed use minimizes any adverse impacts that may be created, including impacts on environmental and natural resources including air, water, stormwater management, wildlife, vegetation and wetlands. As a land use expert, is it in your opinion that the Town Commission may ask the applicant to provide answers to all conditions at the Special Application process, Site Plan Application process, or some or all of the local state and national Indian Tribe Town Commission Minutes December 2, 2008 Page 15 of 18 approvals that will be ultimately required for redevelopment of this site? Atty. Baird - Referring to my experience, some of these conditions will be attached to a special exception use approval. Before a building and permit approval is given, all final plans, permits from state agencies must be in hand. It is not a yes or no answer. It typically lies with the conditions of approval. Residents Comments: David Bovarnik, 4724 S. Ocean Blvd. Voicing my objection to this project. 1) This property has a high water table and the storm water is hard to control. Where will the water be stored? This poor design will impact the whole neighborhood. 2) What type of wall are they going to install? Plans at Town Hall indicate a chain link fence. My neighbor has plans that indicate a concrete block fence. Concrete wall will stop fumes and odors. Harold Hagelmann - 4748 S. Ocean Blvd. We have two public beaches -north and south of this property. Why put 250 people in such a small area. Submitted an aerial photo for the record. In reviewing the agreement on 5/12/87, it only refers to a recreation park not a beach park. This agreement cannot be changed unless all parties agree in writing. Beach Park not warranted in this area. Jack Halpern; 4511 S. Ocean Blvd. The County needs to look at: 1) need for project; 2) site selection; 3) suitability; 4) can site be developed and maintained. The County made a mistake purchasing the property in 1987 and the Town made a mistake by changing the Comprehensive Plan. George Kelvin, Brae Mar Isle Plans have excruciating details in some areas, and hardly any in others. A 10 foot boardwalk -how much fill will be used? What is width? Ramp 60 foot long with a one foot rise? Wood stairs to beach -10 steps, 1 foot grade. Dr. Seymour Strauss -Boca Hi lands This thing is dragging on for 20 years. Would like to see a botanical garden with a gazebo to have concerts. Joe Yucht -Boca Hi lands Believe people own the government. County is stating facts that are untrue. 1) County wants us to believe it purchased park by selling bonds. Untrue. 2) They removed all the trees from the west parcel lot and said that this was acounty-wide project. Untrue. 3) Mrs. Milani sued the county to get the property back. Boca Highlands hired its own attorneys to the tune of $100,000.00. The County's attorneys were quite lackadaisical and contacted our attorneys to ask them for the research that Boca Highlands had paid for. 4) Several years ago, the County agreed to build an 8 foot masonry wall around the parking lot. The Board of Adjustment agreed with the proposal and granted a variance. The variance has since expired and the plans now call for a vinyl fence. 5) A letter from FDOT on 8/22/08 states that the county cannot install flashing lights due to safety. Town Commission Minutes December 2, 2008 Page 16 of 18 Joseph Asselta - Casurina Commend Town Manager for putting all the facts together. The flaws presented by the County are monumental. Offer services to prepare "amicus brief." Urge you strongly to examine conscious before you vote. Will need good reserve for legal costs. Stand strong. Attorney Sliney -Any information provided will be accepted. Beverly Knight - 4023 S. Ocean Blvd. Have a lot of photos of turtles on that parcel if they are admissible. Lots of fishermen use this area to fish. Everyone did a good job. Mayor Newill recesses the Public Hearing until January 6, 2009. A ten minute recess was called from 4:25 P.M. to 4:35 P.M. to allow residents and the County representatives to leave. 7. MISCELLANEOUS -ITEMS LEFT OVER • None 8. REPORTS -TOWN COMMISSION Commissioner Pa liaro - No Report Commissioner Sorrelli - No Report. Commissioner Trinley - No Report. Vice Mayor Zwick - No Report. Mayor Newill -Does the Mayor, Town Manager or employee have any authority to lend or borrow Town owned equipment? Mana er Superman- Probably the Town Manager. Mayor continuing -Someone has taken Baby Jesus and feel it is a crime. Offended by this and feel the person should be prosecuted. The next coffee with the Mayor is scheduled for January 26`t'. 9. REPORTS -TOWN ATTORNEY No report. Town Commission Minutes December 2, 200$ Page 17 of 18 10. REPORTS -TOWN MANAGER Police Chief update -Another one of our candidates, Henry Osterkampt, withdrew his name as he was appointed Chief in his present municipality. I have prepared a matrix that will be used during the round robin interview process. Due to one less candidate, would you like to change the time of the special meeting? Consensus -change to 1 P.M. 11. CONSENT AGENDA MOTION: Vice Mayor Zwick moved to approve the Consent Agenda as submitted; seconded by Commissioner Trinley. Consent A enda: ~ Cultural Board - 3 Year Appointment Elizabeth Eidelson -term 12/08 - 11//11 Authorizing the Town Manager to sign an Engagement Letter with Lewis, Longman & Walker, P.A. of West Palm Beach to Represent the Town in Challenging a Proposed Rule by the South Florida Water Management District for Year-Round Irrigation. Minutes: October 28, 2008 -Workshop Meeting November 4, 2008 -Regular Meeting Motion approved by 5-0 voice vote. 12) PUBLIC COMMENTS AND REQUESTS RELATED TO ITEMS DISCUSSED AT MEETING 13. AD,TOURNMENT There being no further business to come before the Commission, Mayor Newill adjourned the Regular Meeting at 4:55 P.M. upon a MOTION by Commissioner Sorrelli and seconded by Commissioner Pa liaro. APPROVE: / //~/ J Jim ewill, C A, Mayor Miriam S. Zwick, V' Mayor Town Commission Minutes December 2, 2008 Page 18 of 18 __ __ ~ ~; _ ~_. Doris M. Trinlev. Commissioner J. S ATTEST• ' ~ Beverly M. own, MMC Town Clerk ohn J. . ~°'