To:                   Mayor Allen Green

                        Vice Mayor Mary S. Martin

            Councilman Dennis Kennedy

                        Councilman Robert Pohlmann

            Councilman George Steindoerfer


From:              Kenneth W. Parker, City Manager


Subject:          Agenda Commentary for Regular City Council Meeting of

                        March 27, 2007


Date:               March 19, 2007



A.                 OPENING


Item 1 -           Pledge of Allegiance

Item 2 -           Silent Invocation

Item 3 -           Roll Call



B.                 CITIZEN PARTICIPATION (Non-Agenda)



Item 4 -           First Reading - Ordinance No. 2007-17  - Annexation – WalMart


The subject property is the south 15’ of a former segment of Alice Avenue which was vacated, de-annexed, and deeded to the current property owner by the City of South Daytona last year.  The current owner, Wal-Mart Stores East, LP, has petitioned the City of Port Orange to annex the property so that it can be incorporated into the design of its proposed PCD Concept Plan and Site Plan.  If approved, the property is intended to be used to meet the Port Orange tree preservation requirements that apply to this development.  Please see the attached Staff report for additional information.


Second Reading:   Table the Ordinance until after South Daytona determines its course of action. 


City Manager’s Comments:  We received notification from the City of South Daytona that they were rescinding their de-annexation of this parcel of property.   I am recommending the City Council table this item on Tuesday evening awaiting a determination by the City of South Daytona if they are going to invalidate the annexation.  This does have an impact on the conceptual plan. 


Item 5 -           Procedural Appeal – Wal-Mart


The City of Port Orange has received a procedural appeal.  The appeal is based upon whether the Land Development Code is being applied correctly as it relates to the PCD zoning.  This item needs to be resolved before you consider the Master Development Agreement.


Item 6 -           First Reading - Ordinance No. 2007-18 - Approving a Master Development Agreement and Conceptual Development Plan for the Port Orange Nova Road/Madeline Avenue Wal-Mart PCD


This is a request to approve the Master Development Agreement, dated February 11, 2007, and the Conceptual Development Plan dated February 15, 2007 for the “Port Orange Nova Road/Madeline Avenue Wal-Mart PCD.”  Included in this packet are the following documents:


1.                  PCD ordinances;

2.                  Latest version of MDA and Concept Plan;

3.                  Staff update memo with various attachments;

4.                  Minutes from the January 25, 2007, Planning Commission meeting;

5.                  Correspondence received since the January Planning Commission meeting;

6.                  Petition received January 19, 2007;

7.                  News articles received since the January Planning Commission meeting; and

8.                  January 16, 2007, Staff Report.


Planning Commission Recommendation:      The Planning Commission recommends approval 6-0 (Commissioner Atwood excused), subject to Wal-Mart addressing the policy issues and outstanding technical comments prior to the PCD being scheduled for City Council review. 


Staff Recommendation;   Staff recommends approval.


Second Reading:   April 17, 2007


City Manager’s Comments:  This property has been zoned for commercial use for more than 20 years.  When the City implemented the City’s first Land Development Code in the late 1980’s, the City assigned PCD to tracts of land such as this one rather than leaving it in the conventional zoning districts.  The thought process, at that time, was to negotiate higher development standards than would normally be provided under the conventional zoning classifications.  Over the years, this has proven to be extremely effective for commercial development on larger tracts of property.  Under the original conventional zoning, retail uses would have been allowed.   


The PCD is different from conventional zoning.  The City Council has more flexibility under the PCD process            than it does under the conventional zoning process.  If this property were under conventional zoning, the City would not have any flexibility to negotiate certain items nor would the developer.  One of the benefits of the PCD is the ability to negotiate higher or different standards than would be normally seen on similar development under conventional zoning. (For example, different parking standards, different buffering standards, higher tree dimensional standards, higher quality landscaping standards, higher architectural and design standards, higher stormwater standards, etc. Through the negotiations process, a better overall development is achieved with the developer being able to achieve certain objectives that were not achievable under conventional zoning.  Under this process, the City receives a higher quality project that brings a higher value and benefit to the residents than one developed under conventional zoning.  The process used by staff is the same one that has been used for years in negotiating PUD’s and PCD’s.  The staff has not deviated from the process in negotiating the PCD agreement.


On Tuesday evening, there will be some in the audience who will want you to focus on the name on the outside of the building and deny the zoning based upon there being two stores within a short distance of each other.  That is not one of the items that can be taken into consideration on whether to approve or deny the Master Development Agreement.  The decision must be based solely on the merits of the project and not on the occupant of the building.


When considering the PCD, you do have the ability to take into consideration whether the standards proposed meet the public benefit.  I would suggest the following items may be appropriate for your consideration:


1.                      I have voiced a concern about the drainage in the area.  I have waded the streets of Sugar Forest in the past.  The development may meet the 25/100 year storm criteria for St. Johns permitting, but my concern is whether the discharge into the Nova Canal during storm events such as Tropical Storm Gordon, Hurricanes Frances and Jeanne will place additional water into the stormwater system and, therefore, cause backup into Sugar Forest and into the apartments and condos located on Nova Road?  It could be argued that the public does not benefit by this project not meeting the same criteria as the City’s in the design of the Cambridge Project and what we will be proposing to construct when we do the compensating storage project for Town Center.  The developer will argue that he is meeting the pre- and post- stormwater discharge into the Nova Canal and, therefore, the system is still operating at the same level as it currently operates.  I would argue that language can be inserted into the PCD requiring the developer to meet the more stringent standards that the City is imposing on itself when we are constructing improvements that impact the Cambridge area.  By the way, the Nova Canal becomes part of the Halifax Canal, which drains through Rose Bay.  The City of Port Orange has spent extensive funds in the effort to improve Rose Bay.  By meeting the higher standards of discharge and retention, the facility would help improve the quality of water being discharged downstream.

2.                      I am concerned about the conveyance of water that currently crosses the developer’s property.  Recently, I requested we look at this issue.  The preliminary report was that the water was not being properly conveyed.  It appeared that it was being conveyed into the Jackson Street right of way and allowed to pond before running off to Madeline Avenue.  It appeared that the pipe under the sidewalk at Madeline would have to be enlarged to handle the conveyance of water.  I have a problem with the water not being conveyed through the developer’s property.  The developer has the right under St. Johns rules to convey the water.  The developer is not required to treat the water.  If the independent analysis of the proposed drainage system design is correct, redirecting the water that currently flows onto the developer’s property into the Jackson Street right of way and allowing it to pond and then pop off is not acceptable.  At least, the developer should properly convey the water through to the Nova Canal.  At best, the developer should treat and retain the water before discharging into the Nova Canal.  The conveyance of the stormwater is a technical detail that will have to be worked out during the site planning phase.

3.                      The third issue that I have raised in a recent email to the developer relates to traffic issues.  I am concerned about the potential impact on Madeline, Sauls Road and Magnolia Street in South Daytona, McDonald, and Jackson Street. Traffic is a concern throughout the area.  What improvements are proposed that will benefit the public as a whole, not just so this project can be developed on this tract of land?

4.                      When looking at the MDA, there are two items of benefit that I can identify.  The first is the reduction in the number of parking spaces.  It is very difficult to get a developer to agree to reduce the number of spaces.  In this case that has been accomplished.  The second item is the size of the landscaped material that is being used on the project site.  The developer is proposing to increase the size of the landscape material.  That means a higher quality of material.  It was the staff’s belief that large diameter materials of higher quality were preferred to larger buffer areas.  It would have been preferable to have both.  One of the concerns that I always have is the long term maintenance of the landscaping without the City having to enforce the rules through its Commercial Property Maintenance Ordinance.  However, that is not an item that can be governed under the MDA.  They are legally required to maintain the landscaping and material in compliance with their approved site plan.  It could be argued that the plaza area is a public benefit. 

5.                      I have not raised this in my discussions with the developer in the past.  However, we are seeing it discussed in other venues--the control of shopping carts on their properties.  We are beginning to see shopping carts finding their ways into ditches, canals, and on the public rights of way.  Cities cannot recover their cost associated with the removal of the carts from public rights of way.  That is why there is a discussion about ways the private sector can assist local governments in keeping their carts on their property and off public rights of way.  The second issue that is being discussed is how projects like this one can assist by providing security patrols on their parking lots.  Under our ordinances, the City does not have the authority to require these types of improvements on large retail lots.


It may be argued that many of these items will be addressed during site plan review.  However, I believe the City Council should have the answers to some of the issues prior to the site plan being approved since the MDA becomes one of the controlling documents.  As some City Council members may recall, we had a large commercial developer argue that they were not required to make certain changes to their site plan, even though during the MDA approval process they indicated that they would address those issues adequately to the Council’s satisfaction.  By the way, it was a different developer and a different company.  It is my belief that the City Council needs to have the questions answered prior to adoption of the MDA on first reading.  Remember, the MDA creates the operating rules for this project.



D.                COUNCIL COMMENTS


Item 7 -           Comments/Concerns from Council Members


At this time, Council Members may discuss various matters of concern.