TOWN OF LANTANAREGULAR MEETING MINUTES

April 11, 2011

1. ROLL CALL:

Mayor Stewart called the regular meeting to order at 7:00 p.m. and Mrs. Gibson called the roll. Mayor Stewart asked everyone to remember the family of Raime Mohlman, a former Lantana lifeguard who was recently murdered near Phil Foster Park. There was a moment of silent prayer followed by the pledge of allegiance to the flag.

PRESENT: Mayor Stewart, Vice Mayor Moorhouse, Vice Mayor Pro Tem Deringer, Councilmember Aridas and Councilmember Austino.

ALSO PRESENT: Mr. Bornstein, Town Manager; Mrs. Gibson, Town Clerk; Mr. Lohman, Legal Counsel; and approximately 79 spectators.

2. APPROVAL OF MINUTES:

Councilmember Austino made a motion to approve the regular meeting minutes of March 28, 2011. Vice Mayor Moorhouse seconded the motion.

Motion passed 5-0.

3. AGENDA APPROVAL: Vice Mayor Moorhouse made a motion to approve the agenda as submitted.

Councilmember Aridas seconded the motion.

Motion passed 5-0.

4. STAFF AND COMMITTEE REPORTS:

a. Council Reports

Vice Mayor Moorhouse had no report.

Councilmember Aridas announced that there was a Chamber of Commerce Ocean Avenue Bridge closing meeting on March 30th, where concerns were expressed by Town businesses. He said the next meeting would possibly be sometime in June.

Councilmember Austino announced that this past Saturday she attended the Relay for Life event held at the Sports Complex. She said Solid Waste Systems was the major sponsor, Mayor Stewart, Palm Beach County Commissioner Abrams was also there, and it was a good event with a nice turnout. She then asked the Town Manager if the Town got the keys or changed the locks to the gate granting beach access from Dorothy Rissler Drive. Mr. Bornstein explained the gate was secure, and he is now working on the issue of people being able to go around the gate. Councilmember Austino then asked the Town Manager who was paying for electricity at the Sports Complex ball fields when there are

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people playing there at night. Mr. Bornstein explained some colleges and schools use the ball fields periodically and pay for the electricity they use, calculated on a separate electric meter. Councilmember Austino said there was a dead tree at the Driver’s License Office and a resident was recently fined for having a dead tree in their yard, so the Driver’s License Office needs to take care of that dead tree the same as our residents.

Councilmember Deringer said he has seen the bottom of the real estate market, but an article in the Palm Beach Post mentions ten homes selling in 2010 for over $10 million in Palm Beach which is more than double the amount in 2009, and it shows things are starting to turn around in the housing market.

Mayor Stewart read Lantana property sales statistics from the Palm Beach Post and told the Town Manager that next year would be tougher on the budget. He then announced the beginning of November as the tentative date that the County may close the Ocean Avenue Bridge for construction.

b. Town Manager Report

Mr. Bornstein had no report.

5. ORDINANCES AND RESOLUTIONS:

a. Re-consideration of Ordinance No. O-13-2010, proposing a Comprehensive Plan Map Amendment for an Urban Infill and Redevelopment area designated by the Town’s Comprehensive Plan for one (1) parcel of real property 10.03+ acres, more or less, in size located on the east side of Dixie Highway just north of Hypoluxo Road, with a street address of 1400 S. Dixie Highway, informally known as the “Cenacle Property”, in order to assign this property the “Residential Medium Density (R3)” land use designationRemarks: Second and Final Reading

Mayor Stewart introduced this item on the agenda. He explained that at the March 28, 2011 Town Council meeting the Town Council voted to re-consider Ordinance No. O-13-2010. He explained that Ordinance No. O-13-2010 was originally adopted on October 28, 2010 and was subsequently the subject of an administrative challenge with the Department of Administrative Hearings (DOAH). Accordingly, pursuant to Chapter 163, F.S., since Ordinance No. O-13-2010 was challenged and the administrative law judge has not yet ruled, the Ordinance has not become effective. He also explained that if no action was taken on the ordinance tonight that the property stays zoned “Residential Medium Density (R3),” if there is an affirmative vote approving this ordinance then the property still stays zoned “Residential Medium Density (R3),” and if the ordinance is denied then the previous ruling that happened changes and the property reverts back to “(C1) Commercial” zoning. He asked the Town Attorney to confirm.

Mr. Lohman explained that the property is currently zoned “(C1) Commercial” because Ordinance No. O-13-2010 has not yet taken effect, and confirmed that an if there was an affirmative vote approving this ordinance then the property still stays zoned “Residential Medium Density (R3),” and if the ordinance is denied then the previous ruling that happened changes and the property will be zoned “(C1) Commercial.” He explained that the ordinance is being re-read and re-visited by the Council for re-consideration.

Mr. Lohman read the Ordinance title:

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ORDINANCE NO. O-13-2010

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LANTANA FLORIDA, ADOPTING AN AMENDMENT TO ITS COMPREHENSIVE DEVELOPMENT PLAN IN ACCORDANCE WITH THE MANDATES SET FORTH IN SUB-SECTION 163.3184(18)., FLORIDA STATUTES, PURSUANT TO A TOWN INITIATED APPLICATION WHICH PROVIDES FOR AN AMENDMENT TO THE TOWN LAND USE MAP DESIGNATING 10.03± ACRES, MORE OR LESS, OF REAL PROPERTY AS “RESIDENTIAL MEDIUM DENSITY (R3)”; WHICH PROPERTY IS LOCATED WITHIN A DESIGNATED URBAN INFILL AND REDEVELOPMENT AREA ON THE EAST SIDE OF DIXIE HIGHWAY JUST NORTH OF HYPOLUXO ROAD, INFORMALLY KNOWN AS THE “CENACLE PROPERTY”; FURTHER PROVIDING FOR TRANSMITTAL TO THE STATE LAND PLANNING AGENCY; PROVIDING A CONFLICTS CLAUSE AND A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES.

Mayor Stewart asked Councilmember Deringer for any disclosures. Councilmember Deringer said while he was in Kentucky last week for a funeral Elizabeth Tennyson called him on his cellular phone. He said when he returned Judy Black called him and he talked to her as well as Bob Little and Erica Wald. He said he also received a couple of e-mails that were sent to the entire Council. Mayor Stewart asked Councilmember Austino for any disclosures. Councilmember Austino said she spoke to residents on the east and west sides of the Intracoastal, received e-mails and spoke to the Town Manager. Mayor Stewart asked Councilmember Aridas for any disclosures. Councilmember Aridas said he spoke with a representative from the Pugliese Company, the Town Manager, Development Services Director and Town Attorney as well as drove around the property three times. He said he also talked to residents who lived on S. Lake Drive, Hart Street, Central Boulevard and Milton Street as well as to some people at the Lantana Beach when the governor stopped by on April 6, 2011. Mayor Stewart asked Vice Mayor Moorhouse for any disclosures. Vice Mayor Moorhouse said he talked to Town staff, the Town Attorney, Town Manager, Development Services Director, Al Malefatto, Esq. some of the residents and Bob Little. Mayor Stewart disclosed that he talked to residents on S. Lake Drive, on the north end of town, on the north and south ends of Hypoluxo Island, as well as the Town Attorney, Trela White, Esq., Town Manager and the Deputy Mayor of Boca, Susan Haynie. He added that someone from a realty company that may operate out of Delray Beach called his cell phone today and he did get her name, but he also talked to her.

Mr. Bornstein explained some of the history the Cenacle Property issue. He said the last action on this issue was in October to change the Comprehensive Plan to “(R3) Residential” which was filed and approved. He explained it drew an action at the Department of Administrative Hearings in Tallahassee, from the owners of the Cenacle Property, represented by Mr. Malefatto, Esq. He said we were instructed to meet with the owners of the property to talk about possible ways to settle the issue. Town staff had a meeting and discussions with Mr. Malefatto, Esq. and went over a variety of different potential alternatives to try to come to a settlement, none of which were acceptable to the property owners. Town staff received an e-mail that the owners of the Cenacle Property wanted to leave the property zoned “(C1) Commercial.” The period of abeyance for negotiations ended April 1, 2011 and Tallahassee has granted an additional period of abeyance while the issue goes forward which is how we are here today. He said at the last Council meeting, Council directed staff to bring the ordinance back for re-consideration on second reading.

Greg Kino, Esq., Casey Ciklin Lubitz Martens & O’Connell Law Firm, West Palm Beach, submitted an exhibit to the Town Clerk.

Councilmember Austino made a motion to receive an exhibit from Mr. Kino, Esq.3

Vice Mayor Moorhouse seconded the motion.

Motion passed 5-0.

Mr. Lohman explained that a motion was not necessary to accept exhibits for this agenda item because it is legislative and not quasi-judicial.

Greg Kino, Esq., said he is an attorney representing Pat Smith and Mark O’Donnell, both interveners in the DOAH proceeding. He said it is their belief that there is no basis for the motion to re-consider this ordinance in the Town’s Code, and if there was then the motion was not timely made. He said Robert’s Rules of Order provides that the motion must be made only on the day the vote to be re-considered was taken or on the next succeeding day with a couple of exclusions for a legal holiday and etc. He said you cannot wait five months to re-consider an item, as the ordinance was voted on October 28, 2010 and it was voted to be re-considered on March 28, 2011. He said Town Council took action on a non-agendaed item on March 28, 2011 without notice given and his party was surprised. He said a required notice to surrounding property owners was not given, as all public hearings are required to be noticed by certified mail to all surrounding property owners. He said there was just a legal advertisement. He then continued to explain at length the materials in the exhibit he provided to Council, on the reasons why his party believes the Cenacle Property should not be zoned “(C1) Commercial” and it was believed that Council would have zoning for the property returned to “(R3) Residential” if the proposed hotel development plan for the Cenacle Property did not go through. He said he believes it was clear in the minds of Town staff, the people, and Mr. Malefatto, Esq. who at the time was representing the hotel developer that if the proposed hotel project did not go forward that Council would have the zoning changed back to “(R3) Residential.” He said his party relied on this when they settled the commercial land-use challenge. He said his party never would have settled, would have gone to the mat and is confident they would have won, but settled because they were trying to be good neighbors based on the Town’s representations that the zoning for the property would be returned to “(R3) Residential” should the proposed hotel development not go forward. He thanked the Town Council for their action approving Ordinance No. O-13-2010 in October. He said his party did not want to be placed in an adversarial position with the Town, but if the Council denied this ordinance on second reading they would seek to enforce the terms of the settlement agreement and the Town would ultimately be forced to return the property to the “(R3) Residential” zoning. He asked the Council not to deny the ordinance and go through this process because he knows neither party wants to go through the expense. He also said it may be argued that the Town must deny the ordinance because the property is in an urban infill area, but it is not true and read parts of Ordinance No. O-07-02 to explain. He said the Lantana Code of Ordinances does not require a commercial zoning, but the Town could have redevelopment of an urban infill area within residential zoning and he respectfully suggests that this is just as appropriate and the residential zoning is what is appropriate. He thanked Council for their time and asked Council to approve the ordinance on second reading again to have the property zoned “(R3) Residential” as the current land owners’ attorney said could be done, as the Council relied on, as what his party relied on when the case was settled, and as Town staff recognized and remembered was said.

Al Malefatto, Esq., Greenberg Traurig, P.A., West Palm Beach, said he is the attorney representing the Sisters of the Cenacle and on their behalf they are encouraged by the Council’s motion to re-consider Ordinance No. O-13-2010 because they disagreed with the decision made last October, which is why they filed their petition in opposition. He said Mr. Kino, Esq. started arguing the land-use case he was prepared to make before the administrative law judge, and will make if Council does not vote tonight to have the property zoned back to commercial, however the vote goes. He said he would not take time tonight discussing the land-use case because that would be before the administrative law judge if we ever get there. He said hopefully we will not get there if Council makes the right decision this evening. He said the record is clear concerning the urban infill redevelopment area that when you

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first approved the Comprehensive Plan for commercial on this property, the property met that standard and Town staff agreed with it and recommended it. He then asked to look at the exhibits that Mr. Kino, Esq. provided to Council. He referred to the settlement agreement and said when you refer to an agreement, do not refer to intent, but you have to abide by the specific language of the agreement. He said Mr. Kino and his client thinks the case is open and shut, but said that the settlement agreement language says, “in the event that the intervener (former developer) does not close on the purchase of the property within 90 days of the required development approvals, the Town will rescind Ordinance No. O-02-2009.” He said the developer never obtained those final development approvals, so that was a significant condition precedent which has never been met. He referenced e-mail in Mr. Kino’s exhibit where the developer said the deal is now dead, we have not gotten the approvals and we are gone. He then said he argues that the agreement is null and void. He said as of any position he took with his former client, he was relying on specific language in this agreement that said the zoning could be changed back to residential – if all of these conditions were met and then the developer did not follow through. He said the commercial real estate market is starting to show some life, more than the residential market. Making the property zoned commercial will make this property more attractive to prospective purchasers, and that is really significant for your tax base. On the other hand if the property remains a residential Comprehensive Plan zoning, it adversely affects the value of the property as well as its marketability. He said there have been some residential purchasers sniffing around the property, but the values they are asking for are really “low-ball” offers. There is nothing really significant and nothing that would make the Sisters healthy. He said the Town’s counsel has advised that the residents are protected by Ordinance No. O-11-2010, which limits the type of commercial development and the standards of commercial development within the urban infill area. He said it specifically precludes any type of “big-box” development on the property, which has been a fear. He said he had the opportunity to review an e-mail that went around opposing the commercial zoning and he found one of the statements absurd, that “I’m sure you do not want your property value to go down. Anything from a bar like the Key Lime House with its continuous noise and parking issues, low-class hotels, laundromats, strip-malls, etc. could be developed.” He said when he and his client read this today, his client was incredulous and said “I’m not going to sell this property for a laundromat or a low-class hotel. How would I get value for my property if it was going to be used for that purpose?” He said we have ten acres of high-class waterfront property here and he thinks Council really needs to do the right thing.

Sister Mary Sharon Riley, Sisters of the Cenacle, 1400 S. Dixie Highway, thanked the Council for re-considering the land-use designation of the property and doing so in the most timely way possible. She said the Sisters appreciate it and are grateful. She said the Sisters did not take the decision to sell the property lightly. They cannot afford to rehab and refit the houses on the property that need it, even to serve the people who come to us asking for our help. She said they also need to take care of the Sisters who are senior citizens, many who have served the people of the area for the last fifty years and many times with little or no remuneration. She said their real estate broker, Grant Savage, has advised them that the value of their land is higher if the zoning is commercial rather than residential. She said the Sisters are aware that the neighborhood needs some uplift and like others they have been recently broken into. She said the Sisters are willing to work with neighbors to address their concerns, and when the property is sold to urge the buyer to do the same. We need to sell the property with the best remuneration that is possible to be received, but that does not mean we need to sell it mindlessly or irresponsibly; quite the contrary, we will do our best to be honest and responsible.

Grant Savage, Grubb & Ellis Real Estate, Miami, said the property is much more valuable zoned in a commercial manner rather than residential manner as evidenced by the multiple offers we have had from residential buyers as well as the continued interest from the hotel developer that was previously interested. He said they would like to continue with the project, however they need the property to be zoned “(C1) Commercial” in order for him to proceed.

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Mark O’Donnell, 1206 S. Lake Drive, said he is one of the parties that sued to try to keep the Cenacle Property zoned residential and then settled with the Town. He said he was very grateful for the last reading when the property’s zoning was switched back to residential, and it has been a long, hard battle to try to protect their property values. He said we believe having commercial property next to us will destroy our property values and would be detrimental to the neighborhood. He said blight tends to be contagious and typically when you have commercial property the value of the surrounding properties goes down. He said he thinks it would be unfair to try to raise the Cenacle Property’s value. When Sisters decided to sell the property it was residential and they made the decision knowing the value of what they had was residential. Someone then came to the Sisters and said they could try to get the property zoned commercial and present this fancy hotel and everyone knows what happened. He said they reluctantly settled their petition to stop the property from being zoned commercial because they felt they were protected. He explained their interpretation of the settlement agreement. He said he understands the Sisters of the Cenacle want more money for the property, but in his opinion to do that to the detriment of the neighborhood and the surrounding community and just leave is greed. He said he does not think you should hurt people to help people. He continued to explain their concern with living next to a commercial property and the difficulty they had in working with the developer who initially proposed the hotel development. He said the decision to re-consider this ordinance without notifying the interveners and bringing them to the table is a slap in the face, and asked Council to stick to the settlement agreement. He said intent is important, and in reading the settlement agreement it is clear what the intent was. He explained how he wants to be a positive contributor to the town and likes the town, but would not want to stay next to a commercial property, and hopes Council makes the right decision.

Julie Goodridge, 1206 S. Lake Drive #204, said she loves Lantana and moved here six years ago. Before she bought her condo she called the Town and had a verbal agreement that the Sisters would remain there which was one of her conditions to buy the property. She said her balcony is about twenty feet from the property line of where the commercial development would be, which is one of the reasons she was involved in the battle of either having a say in the development or keeping it residential. She asked Council to keep the property zoned residential because she really likes where she is, with the safety and comfort she has there now.

Judy Black, 417 S. Atlantic Drive, said she is not a lawyer nor is her property adjacent to the Cenacle Property but this is my town and this is why she and her husband have chosen to become involved in a big way in Lantana. She said she was still trying to reason the process of what went on, as she missed some of the meetings last October for health reasons. She said in finding out what she missed, she thinks the Council in its wisdom went back to the “(R3) Residential” zoning. She said she did not understand why it was being re-considered. She said there is a suit pending, but that means that any time there is a suit against the Town they could have their decision re-considered and it is a very strange precedent. She said she thinks the property should remained zoned “(R3) Residential” because once it is open to “(C1) Commercial” it allows for many more uses, and explained her opinion of inappropriate uses. She said she hopes the Town would leave the “(R3) Residential zoning” not only for the surrounding residents, but to leave more options open. The last time it was zoned “(C1) Commercial” there was somebody who most people thought was going to be able to go forward with the financing, and there were some restrictions placed on what that development would mean. She said she did not think it was an issue of whether or not the property would be developed, but a matter of how much control the Town and Council can maintain over that and the timing of all of this. This could always be changed back to “(C1) Commercial” when there is something viable out there, but to leave it so open-ended and lose control at this point in her opinion does not make any sense. She said she hopes it is kept at “(R3) Residential.”

Collete Barone, 1115 S. Lake Drive, said she was at the last Council meeting until 10:30 p.m. and there was no indication that the subject of the Cenacle Property was going to be brought up that night,

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it was not on the agenda and it was discussed right after she left. She said she feels it should stay residential; not knowing what could come in there as commercial.

Jerry Bayuk, 905 Garnett Street, said he sits on the Town Planning and Zoning Commission, but is speaking as a citizen, not as a Planning and Zoning Commissioner. He said there has been good bantering back and forth this evening. We have a Mayor and Council that we have a lot of respect and trust for. He said we have just had recent elections where a lot of people voted for and supported them, and he does not know why one would not continue to support them at this time to keep this property zoned commercial. He said history has told us that commercial property will come back before residential property. He said one can see residential properties up to five miles down the road with no windows that started blight three or four years ago. He said the Town’s revenue is down to where we are charging senior citizens to use a building. He said that property is worth a lot of money, and for someone to use the word “greed” against Sister Riley should not be so. He said he believes we should all trust the people we put into office. He said things have changed a lot in the last two years since this has been going on and he does not think anyone made a misstatement on purpose. It is time to re-look at things. He said the Town Manager, Town Attorney, Mayor and Council has an obligation to look at what is best for the Town, the residents and the people surrounding our community. He said he believes everyone has done their best for the residents and people that surround us and will protect the rights of the people. He continued to explain and admonished everyone to trust the people that have been placed in office.

Bob Little, 921 Lakeside Place, said it was all decided if the deal did not go through that the property would be zoned back to “(R3) Residential.” He said he does not understand what happened in the meantime and we have had good faith in the Council. He said the residents are not happy with this being changed to “(C1) Commercial” and the Council was going back on their word.

Bob Lupp, 108 Half Moon Circle, Hypoluxo, said there are 100 residents at Half Moon Bay that are facing the Cenacle Property and they do not have too much say in what goes on, but there was quite a bit of concern when the developer came to their clubhouse to present the project because of a proposed restaurant servicing the hotel and how the noise, odors and sounds from air conditioning, dumpsters, etc. would affect them. He said in one way or another, a commercial endeavor of such would affect someone.

Virginia Shea, 128 E. Hart Street, said she is a little further away from St. James Place. She said they are directly affected by commercial property in their neighborhood and the crime she thinks it brings. She then said it does not look nice and she can barely get onto her street because of the commercial entity at the end of her street. She said she feels for the people of St. James Place and she knows how she feels with the commercial trailer business at the end of her street. She would hate to see that happen in such a great neighborhood where she feels safe and walks her dog, to have another commercial development in that area. She said there is a really bad traffic problem, and while the crime rate may be low she still sees drugs in her area all the time. She said she may not call the police because she is a little fearful of retaliation, but would hate to see that happen in the terrific neighborhood backed up against the water with a generally safe feeling. She asked the Council to keep the property residential so that the rest of the people in the neighborhood can continue to feel safe and be proud of the neighborhood.

Richard Schlosberg, 417 S. Atlantic Drive, said there were several different issues involved. He said for those of us who were here over a year and a half ago and heard the promises from the Cenacle’s lawyer that the common sense of what they told us was that they would foresee that the zoning would be changed back to “(R3) Residential.” He said the common sense of what was told this Council, the residents and the audience was that we can expect the property to return to “(R3) Residential.” He walked over to the Town’s Proposed Land Use Map and explained there was a trade-off between how the Cenacle owners have said they want to maximize the property, develop the waterfront and get the

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most commercial use out it and the impact of such on property values of neighboring residents and residents across the Intracoastal. He said it was unfair. He said his understanding from what a Town staff member in the Planning Department said to him was that the neighborhood there against the train tracks was expendable which is why the urban infill area and commercial zoning was there. He said if the Council agrees then to vote for the “(C1) Commercial” zoning. He said he grew up with trains going close by his house every ten minutes and he does not think the neighborhood he grew up in was expendable at all. He said if you were just interested in value for the Town that “(R3) Residential” zoning was the way to go. He then walked back over to the Town’s Proposed Land Use Map and explained how sensitive planning was needed to protect the Cenacle Property green space. He explained how the Cenacle Property was the second largest green space in town and had certain ecological values that are affected by other Town environmental policies and was needed open space. He said the right thing to do would be for the Cenacle Property owners to divide the property and donate back to 200 feet of waterfront property to the Town with a conservation easement on it and let it be used for sensitive purposes, to protect the sea grass, aquatic habitat and plant banyan trees there. He held up an old picture of the canopy of trees in Lantana on Hypoluxo Island and just west of the Intracoastal. He said restoring the canopy is urgent for saving a wide variety of animals and the ecosystem. He said if the Cenacle was not where it is or was already built upon, he would not be asking for consideration of these ecological values, but it is open green space now and would be a net loss of open space. He said with “(R3) Residential” zoning, he thinks we can do the best we can with the property. He then said he expects that part of the Cenacle Property along US 1 would be zoned commercial, as well as it should to ease conflicts of land use and zoning and that is all we are asking – that you reduce the amount of future conflict, and at this point he thinks that means supporting the “(R3) Residential” zoning.

Councilmember Deringer said Council talked about doing an overlay to protect the Town, and everyone was concerned about Amendment Four so we hastily put together two meetings in October 2010 – one of which fell on his wife’s birthday and they already had plans to be out of town so he missed one meeting. He said the Council voted 5-0 on first reading to change the zoning back to “(R3) Residential” and voted 4-0 on second reading as he was absent. He said Council thought they were doing the right thing with that and also with putting an overlay placed on the “(C1) Commercial” zoning designation before it was voted to return the Cenacle Property to “(R3) Residential.” He read part of the overlay ordinance for the “(C1) Commercial” zoning, Ordinance No. O-11-2010, to explain what kind of development could take place there. He explained that the overlay was there so no one can just come in and build such things as a casino, strip mall or pawn shop – that it has to come before the Town Council. He said the overlay says that “big-box” developments such as Wal-Mart could not be built there. He said now we have come up with some legal problems here and he referred to the Town Attorney to explain to everyone why the ordinance is being revisited, and if we do not do the right thing what the consequences are – whether we get sued by St. James Place or by the Sisters of the Cenacle. He said the Council tries to represent the people and do the right thing and have all voted unanimously to change the property back to “(R3) Residential” zoning and now we are finding that may not have been the right thing and that is why we are revisiting it today.

Mr. Lohman said he would prefer to wait until after Council’s comments.

Councilmember Austino said she sits here to represent the residents and what they want and that is what she is doing. She said the way she remembers is that if the hotel was not being built on the property, that it would be reverted back to the “(R3) Residential” zoning and that is what was done. She said she frankly does not know what we are doing here today because we have voted on this, we did say we would revert the property back to “(R3) Residential” and if something came forward later then we would revisit that to decide if we would go back to “(C1) Commercial” zoning again. The Council made the residents a promise and should agree to what they said they would do. She repeated that she was elected to represent the residents, which is what she is doing. She said the ordinance was originally adopted on October 28, 2010, was challenged and the administrative law judge has not yet

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ruled. She said maybe we should let the administrative law judge rule on this and decide. She said she believes the residents will feel better if a judge decided instead of Council making the decision because Council has already made a decision by changing the zoning to “(R3) Residential.”

Councilmember Aridas said he sat in the audience during the discussions and heard both sides and asked the Town Attorney if there was a promise made or a motion made to revert the property back to “(R3) Residential” if the hotel did not go through. He said he did not think there was a motion made, just Council talk.

Mr. Lohman explained that there were discussions, but Council cannot condition a Comprehensive Plan or a rezoning. He said you either do it or not, but you cannot put conditions on it, and there were no conditions as part of the motion.

Vice Mayor Moorhouse told Mr. Kino he was the Councilmember who made the motion for re-consideration of the ordinance, that he lives in that area and has as much of a concern as any of the residents do there. He said the Town refused and rejected a cell tower, the company had 30 days to file suit and it was probably a no-brainer that if they did so then the Town would have lost, but the Council rejected it for the residents. At the same time, he asked for the status on the lawsuit brought up by Cenacle and was told that it is active and discussed how much money it would cost if we pursued and etc. and he wanted to bring it back for discussion. So it is back here today. He said the only thing that is confusing to him is he went down Sterns Street, Hart Street, he lives there and goes down Central Boulevard every day and at the end of Hart Street you were going to have another boat place there that was empty that was causing you trouble, Kelly’s was causing you trouble. He asked if there was anybody there now. He said there was not anyone at the meeting but Council stood up for the residents. He said they are gone and Council did not let them do it because the traffic they were going to put there was ridiculous. He said those places are empty and they look ugly, but they are prettier empty and ugly than they were before when you had boats all over the road and you could not drive down your road. He said he was also at St. James Place when there were drifty sailboats all over the place and sunken boats. Council worked hard on that and they went away, so Council does work for you whether you all know it or not. He asked Greg Kino, Esq. if anyone in that area knows the word “PCD” which is what this Council did after the first night when Council unanimously approved the commercial zoning. He said then we got nervous and asked did we have enough things to protect Mr. O’Donnell or Dr. Moorhouse who lives there. He said if you think your properties have gone up in the last couple of years, you have several places for sale on Sterns Street, some empty spots, a burned-up house and I have three foreclosures within five houses around me. He said he feels the same pinch, but when Council designated the PCD (Planned Commercial Development) it means that if the property is left commercial, anybody that comes in there cannot do anything without coming to Council and if they come before Council you have the right to look at the site plan and everything. He explained that there is leverage. He said Council has gone through extraordinary safe guards to allow the “(C1) Commercial” zoning. He said one of the reasons the hotel deal fell through in the first place is because this took a year and a half and they did not have funding. He said no serious developer is going to mess around with that property, at that price with 18 months of lawsuits. He continued to explain the restrictions on commercial zoning and the lack of input in what is built within residential zoning. He said if you think your property is in peril now and we or you do not have any say in what is built there, then we are all in trouble. He said that is why he strongly believes that if we leave it and the truth of the extra ordinance we have put in place to protect the residents for that entire piece of property, you will get something you will get to shape and decide on. He said if we go back to the “(R3) Residential” zoning, you are out of the ballgame and so are we. He said that is where he is coming from; he loves the neighborhood and has been there since 1983. He continued to speak on the neighborhood and then told Councilmember Austino that when Ford’s Off Lease was in her neighborhood, she showed up with about twenty other residents, Council voted to have them go away and now Ford’s Off Lease is gone. He spoke on how nice Councilmember Austino’s neighborhood is now and said he would like to see that in the Cove area and see it turn around. He said his house has

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been broken into half a dozen times in the last few years, and two of those times has been within the last six months with $8,000 worth of damage. He said these are times we need to stick together and deal with community issues, taking back our community. He said he strongly feels that the Cenacle Property should be zoned commercial so we can stop anything we do not want and create anything we do want.

Councilmember Austino told Vice Mayor Moorhouse that with all due respect, there are more than twenty residents here that are saying they want the property to remain zoned “(R3) Residential.”

Mayor Stewart said the way the vote goes is very convoluted, but these are the facts and in most instances this Council has done what is right. He said this Council will do what is right for the right deal for that property. He said when it was zoned “(R3) Residential” and the Sisters came forward with what this Council thought was good for this community, with an upscale hotel, Council said yes and agreed with a $100 million hotel to go there, with the conditions to hopefully protect the residents as best we could. The same thing can apply right now. He said if it stays “(R3) Residential” and something good comes forward, he is sure this Council will do what is right and in keeping with the neighborhood. He said we are in the dilemma because if we do nothing and keep it zoned “(R3) Residential” Mr. Malefatto and the Sisters will take it to Tallahassee and a judge will decide whether it should stay “(R3) Residential” or whether we made a mistake and it goes back to commercial. He said if we turn it to “(C1) Commercial” tonight, he was sure someone else would do the same thing – take it to Tallahassee and say they should not have reneged on what they did and now it is the same lawsuit, so no matter what Council does the Town Attorney will have some billable hours. He said it is one of those “catch 22s.”

Richard Schlosberg, 417 S. Atlantic Drive, said the “(C1) Commercial” zoning would be intervening between two residential areas and the only way that makes sense is if one foresees the future that there is not a residential area to the north anymore, otherwise you will have the problem of commercial abutting residential and that does not make any sense. He said the overlay was not enough to protect the community when Council voted the last time and he does not see the overlay protecting the community this time. He also said he did not see anything in the PCD provisions that would prevent a casino from being built there. He said a casino organization could come here with their lawyers and “wow” us and we have been “wowed” by smaller groups although he would hope that Council would deny a casino. He said he believes it was wrong for the Council and Town to accept the previously proposed dense development that ignores the ecological situation of that property. He said it is not any property, but a particular property that abuts the Intracoastal and affects the ecosystem and if we want to ignore that we do it at our peril.

Greg Kino, Esq., Casey Ciklin Lubitz Martens & O’Connell Law Firm, said to Vice Mayor Moorhouse that he thinks his intentions are good, but he does not think the residents quite understand that if he thought it was in the residents’ best interest that the motion to re-consider the ordinance would be done on a non-agendaed item with no notice to the residents. He said when it was properly raised by Councilmember Austino about notice to the residents the response was there will be a legal ad in the paper and that is all that happened. He said these people do not read the legal ads in the paper and it would have behooved you to call them and let them know the meeting was coming up. He said the commercial zoning was approved in April 2009 and it was not until September 2010 that the commercial overlay was approved, but only because we were pressing to get the property reverted to “(R3) Residential.” He said that the overlay was the “hail Mary” that might have that the residents go away, but we did not go away. He then said that Council said they would change the property to “(R3) Residential” and we respectfully request that you revert the property to “(R3) Residential.”

Karen Wink, James Place Condos, asked if an overlay was placed on the commercial zoning, what is to stop Council from placing an overlay on the residential zoning that would be in our best interest.

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Mr. Lohman explained overlays can be placed in the Town where Council thinks is appropriate. He said Council would have to come up with conditions for the overlay and reasons why that property is seen as unique to other “(R3) Residential” properties next to it without overlays on them. He said it could be done, but there would have to be very specific reasons as to why.

Mark O’Donnell, 1206 S. Lake Drive, asked Council to allow the issue to go to the administrative law judge and be heard. He said he thinks it would make peace, that even if the Town loses and it goes to a commercial zoning then we have the overlay and we know Council did their best. He said we offer our support. He said we are already interveners that would be there in Tallahassee so it would not just be the Town against the Sisters but it would be us and the Town against the Sisters. He said he thinks that would give us a better chance of prevailing and all we are asking for is to get the chance to get the right thing done. He explained they know there was no motion put in place to revert this back, but there was a settlement agreement and the lawsuit was dismissed on the condition that the agreement was upheld. He said he thinks the Council changing their decision now would be going back on that agreement, doing nothing right now would be in accordance with that agreement and we would appreciate being allowed the opportunity to defend our property rights. He said they think the Town would get more property tax money from that property, but it will affect the adjacent property owners and those across the way. He said granted, there is no sure way to have a development where everyone would be happy and in the settlement agreement they were willing to take some deep concessions like still allowing the dumpster on their property line. He said we do not want to hamper development, but just want to be strongly considered.

Mayor Stewart asked if anyone else would like to speak. Being no additional comments from the public, he then closed the public portion of the meeting and asked the Council for any final discussion.

Councilmember Deringer said Council was between a rock and a hard place and asked the Town Attorney what should be done.

Mr. Lohman said there are ramifications to every decision that is made in life. He said there is an administrative challenge right now and if Council does nothing then we move on with the administrative challenge, we will have to defend that and there will be a cost. He said it is not a good idea for him to try to quantify the Town’s likelihood of success on the dais. He said on the other hand the St. James Place residents could sue on the settlement agreement, as anyone can sue over anything. He said he disagrees with their interpretation of the condition, he originally did not want that condition put in there on behalf of the Town but it was put in there any way. He said in his opinion the condition precedent that would trigger that condition and make it operable has never occurred. He said the agreement remains out there and at some point it could become ripe if that particular intervener returned. He said he did not know what their intent was when it was placed in the agreement, but honestly intent does not mean anything unless the language is vague. If the language is plain, you do not get to get into what was meant. If the document and phrase can stand alone within the four corners of the document then there is no parole evidence or information considered outside the four corners of the document. Mr. Kino and his client disagrees and thinks that they have a great case, but regardless of lawsuits on either side the Council must decide for themselves what they think is best for the Town. He said he will defend the Town’s decision either way, and from a legal risk standpoint would lean towards defending the settlement agreement, but whether residential or commercial it comes down to what Council thinks is best for the Town.

Councilmember Deringer made a motion to deny Ordinance No O-13-2010.

Vice Mayor Moorhouse seconded the motion.

Mayor Stewart clarified that a passed motion for denial causes the prior ordinance approval to go away and the property would be zoned “(C1) Commercial.”

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Mr. Lohman explained that technically under the law the property is currently zoned “(C1) Commercial” because Council passed the land-use ordinance to make the property “(R3) Residential” but it is not effective yet because it is challenged and the administrative law judge or Department of Community Affairs (DCA) has not made a final order. He said if the motion of a denial carries, then the property would remain zoned “(C1) Commercial.”

Mayor Stewart asked the Clerk for a roll call vote.

There was a roll call vote and the motion passed 3-2. (Nay-Mayor Stewart and Councilmember Austino)

Mayor Stewart asked the Town Attorney to confirm that the vote means that the property is zoned back to “(C1) Commercial.”

Mr. Lohman explained it means that the ordinance failed on second reading and the land-use and zoning remains “(C1) Commercial.”

6. MISCELLANEOUS:

a. Consideration of Memorandum of Understanding with the Greater Lake Worth Chamber of Commerce and Greater Boynton Beach Chamber of Commerce for Joint Participation in Grant Agreement #ARS053 which will develop a program to fund energy conservation improvements for local businesses

Mayor Stewart introduced and explained this item on the agenda. Mr. Bornstein and David Thatcher, Development Services Director, further explained the agenda item.

Councilmember Austino said she talked to the Town Manager and Jamie Titcomb, Executive Director of the Palm Beach County League of Cities, about the agenda item. Mayor Stewart said he spoke to the Town Manager about the agenda item.

There was Council discussion.

Joe Farrell, 920 Wynnwood Circle, commented on the agenda item.

Councilmember Deringer made a motion to approve the Memorandum of Understanding with the Greater Lake Worth Chamber of Commerce and Greater Boynton Beach Chamber of Commerce for joint participation in the grant agreement.

Vice Mayor Moorhouse seconded the motion.

Motion passed 5-0.

b. Consideration of an interlocal agreement with Palm Beach County for the construction, maintenance and operation of the Ocean Avenue Public Fishing Pier

Mayor Stewart introduced and explained this item on the agenda. He said he spoke with County staff and County Commissioner Steve Abrams about the agenda item.

No individuals from the public commented on the agenda item.

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There was no Council discussion.

Vice Mayor Moorhouse made a motion to approve the interlocal agreement with Palm Beach County for the construction, maintenance and operation of the Ocean Avenue Public Fishing Pier.

Councilmember Austino seconded the motion.

Motion passed 5-0.

c. Consideration of a lease agreement with Palm Beach County Fire-Rescue for Fire Station #37

Mayor Stewart introduced this item on the agenda, and Mr. Bornstein explained the agenda item.

There was Council discussion.

Lou Canter, 1208 N. Atlantic Drive, commented on the agenda item.

Vice Mayor Moorhouse made a motion to approve the lease agreement with Palm Beach County Fire-Rescue for the use and occupancy of Fire Station #37.

Councilmember Aridas seconded the motion.

Motion passed 5-0.

7. STATEMENTS FROM THE PUBLIC:

Catherine Skervin, 1307 Southwinds DriveRosemary Mouring, 1445 W. Branch Street

8. ITEMS FOR FUTURE AGENDAS (subject to change)

April 25, 2011a. Proclamation recognizing May 2 – May 6, 2011 as Teacher Appreciation Weekb. Proclamation recognizing May 1 – May 7, 2011 as Municipal Clerks Week c. Consideration of awarding a contract for the construction of the Sportsman’s Park boat docksd. Consideration of awarding a contract for various concrete repair and construction projectse. Consideration of a request for approval of a plat exception regarding property located between

605 and 617 S.E. Atlantic Drive, pursuant to Section 17.5-7 of the Lantana Code of Ordinancesf. Consideration of a special exception request for a charter school within the C1 Commercial

District located at 600 E. Coast Avenue, relative to Section 23-96(d)(4) of the Lantana Code of Ordinances

May 9, 2011a. Consideration of appointments to the Lantana Police Pension Board of Trusteesb. Proclamation recognizing May 25, 2011 as National Missing Children’s Day

9. COUNCIL COMMENTS:

Vice Mayor Moorhouse, Councilmember Aridas, Councilmember Austino and Councilmember Deringer had no additional comments.

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Mayor Stewart said he would like for the Council to ask the Clerk, since Agenda Item 5a was so hard to understand, that a vote for denial was a vote for yes for something else and a vote for yes was a vote for no and that a vote of nothing meant things stay the same, that the minutes be recorded verbatim so that future people when they try to read them could understand the vote because it seems opposite from how it should be.

Mayor Stewart passed the gavel to Vice Mayor Moorhouse.

Mayor Stewart made a motion for Agenda Item 5a to be recorded verbatim in the minutes.

Councilmember Austino seconded the motion.

There was Council discussion. Mayor Stewart clarified that his intention was not to have true verbatim minutes, but that there is more definition on what is said and not just a record that someone spoke.

Motion passed 5-0.

Vice Mayor Moorhouse passed the gavel back to Mayor Stewart.

Mayor Stewart then said it is disturbing that people on this Council would not disclose 100 percent of some things and some people they may have had discussions with regarding issues.

10. ADJOURNMENT:

The motion was made and carried unanimously. There being no further discussion, the meeting adjourned at 9:55 p.m.

Aye Nay

_____ ______ __________________________Mayor Stewart

______ ______ __________________________Vice Mayor Moorhouse

______ ______ __________________________Councilmember Aridas

______ ______ __________________________Councilmember Austino

______ ______ __________________________ Councilmember Deringer

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ATTEST:

__________________________Town Clerk

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