JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, … · 350 east las olas blvd. | suite 1000 | fort lauderd ale, florida 33301 t: 954-525-9900 | f: 954-523-2872 | in the circuit court

350 EAST LAS OLAS BLVD. | SUITE 1000 | FORT LA UDERDALE, FLORIDA 33301 t : 954-525-9900 | f : 954-523-2872 | WWW .BERGERSINGERMAN.COM

IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.

HARBOURSIDE PLACE, LLC, a Florida limited liability company, Plaintiff, v. TOWN OF JUPITER, FLORIDA, a Florida municipal corporation, JUPITER COMMUNITY REDEVELOPMENT AGENCY, a dependent special district of the Town of Jupiter, Florida, Defendants. /

COMPLAINT FOR RELIEF UNDER 42 U.S.C. § 1983, FOR DECLARATORY AND

INJUNCTIVE RELIEF, AND FOR DAMAGES

Plaintiff, HARBOURSIDE PLACE, LLC (“HARBOURSIDE”), sues Defendants, TOWN

OF JUPITER, FLORIDA (“TOWN”) and JUPITER COMMUNITY REDEVELOPMENT

AGENCY (the “CRA”), and alleges:

THE PARTIES, JURISDICTION AND VENUE

1. Plaintiff, HARBOURSIDE is a Florida limited liability company.

2. The TOWN is a Florida municipal corporation. The TOWN is located in Palm

Beach County, Florida. The TOWN is governed by a body politic known as the Town Council.

3. The CRA is a dependent special district of the TOWN authorized by Chapter 163,

Part III, Florida Statutes. The CRA is governed by the CRA Commission, which is a public body

corporate and politic, and which is comprised of the members of the Town Council.

Filing # 36143034 E-Filed 01/05/2016 10:41:07 AM

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4. HARBOURSIDE owns and operates “Harbourside Place,” which is located in the

TOWN, along the Intracoastal Waterway just north of the Indiantown Road bridge. The TOWN

promotes “Harbourside Place” as its primary entertainment center along the TOWN’s Riverwalk:

“The Harbourside Place development, located north of the Indiantown Road bridge, has completed construction and celebrated its Grand Opening on December 4 - 6, 2014. Harbourside Place was designed to become the main “entertainment” component of the Riverwalk. The 179 room Wyndham Grand Hotel, offices, retail, amphitheater, restaurants[,] public boat docks and public parking are now open.” [http://www.jupiter.fl.us/index.aspx?nid=227]

5. Harbourside Place [http://harboursideplace.com] comprises approximately 11

acres, and includes approximately 43,164 square feet of retail space leased to several tenants

including Tommy Bahama, Chico’s, White House/Black Market, Pink Princess, Francesca’s,

Venetian Nail Spa and Native Visions Gallery; eight restaurants (for example, The Woods Jupiter,

Deep Blu Seafood Grille, Bravo! Cucina Italiana, Too Bizarre, Calaveras Cantina and Burger Fi)

comprising approximately 31,415 square feet; a 179-room Four Star Wyndham Grand hotel and

conference center, multi-level parking structures, approximately 62,405 square feet of office

space and open public spaces including an outdoor amphitheater, a public marina and the

TOWN’s Riverwalk, creating a family-friendly, upscale environment for residents in or around

the Town of Jupiter, and business or social visitors as well.

6. The TOWN’s Riverwalk is a 2.5-mile pedestrian walkway adjacent to the

Intracoastal Waterway that provides access to residents and visitors to Harbourside Place as the

TOWN’s entertainment district.

7. This complaint alleges causes of action pursuant to 42 U.S.C. §1983 to enforce the

First, Fifth and Fourteenth Amendments to the U.S. Constitution, Article 1, Section 4 of the

Florida Constitution, and to seek redress for the TOWN’s continuing unconstitutional acts which

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continue to harm HARBOURSIDE; for declaratory and injunctive relief, and for damages. This

Court has jurisdiction over this cause and these parties pursuant to 42 U.S.C. §1983, and Florida

Statutes Section 86.011 et seq.

8. Venue is proper in this Court because: (a) the TOWN is located in Palm Beach

County, Florida; (b) this complaint alleges causes of action based upon actions and events that

have occurred, and that continue to occur, in Palm Beach County, Florida; and (c) the property and

businesses that are the subject of the causes of actions set forth in this complaint are located and

are being conducted in Palm Beach County, Florida.

THE TOWN’S USE OF PERMITTING CONDITIONS TO RESTRAIN THE

CONTENT OF PERFORMANCES AT HARBOURSIDE’S OUTDOOR AMPHITHEATER

9. Harbourside Place is located along the Intracoastal Waterway that separates it from

the nearest residential neighborhood by approximately 500 feet.

10. The TOWN approved the development of Harbourside Place as a planned unit

development or “PUD”. The Harbourside Planned Unit Development was first approved through

the adoption of Ordinance 14-08 (“Ord. 14-08”) on December 2, 2008. The TOWN later adopted

Ordinance 44-10 (“Ord. 44-10”), which amended Ord. 14-08, and Ordinance 1-13 (“Ord. 1-13”),

which amended Ord. 14-08 and 44-10. Collectively, Ord. 14-08, Ord. 44-10 and Ord. 1-13 are

referred to herein as the “Harbourside PUD,” and are attached hereto within Composite Exhibit

“1”.

11. The TOWN approved the Harbourside Place site plan through the adoption of

Resolution 25-08 (“Res. 25-08”). The Harbourside Place site plan was subsequently amended

through the adoption of Resolution 4-10 (“Res. 4-10”) and Resolution 2-13 (“Res. 2-13”).

Collectively, Res. 25-08, Res. 4-10 and Res. 2-13 are referred to herein as the “Site Plan,” and are

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attached hereto within Composite Exhibit “1”. During the Site Plan approval process, the

TOWN directed HARBOURSIDE to construct and operate an outdoor amphitheater at which live

music and other entertainment events would be provided to the public for free, as part of the

TOWN’s desire to make HARBOURSIDE the main entertainment venue of the TOWN’s

Riverwalk.

12. The Harbourside PUD and Site Plan, including each amendment thereto, were

reviewed and approved by the Town Council at publicly noticed meetings. Each time they were

reviewed and approved, the public had a right to object.

13. The Harbourside PUD and Site Plan contemplated regular/routine events and

musical performances at the outdoor amphitheater that would be exempt from the special event

permitting requirements under Chapter 27, Art. IV of the TOWN’s Code of Ordinances (the

“Code”), but subject to Chapter 13, Art. IV of the Code (the “Noise Ordinance”).

14. Specifically, Condition No. 22 of the Harbourside PUD required HARBOURSIDE

to “submit a special event and amphitheater events program detailing the number and types of

routine events that will not require an individual special event permit … .” The intent of this

condition was to allow the TOWN the opportunity to plan for the public safety impacts of the

programmed events, such as adequate police presence for crowd control during larger events.

15. The TOWN’s Code Section 27-251 et seq. prescribes the special event permit

process which, pursuant to the Harbourside PUD and Site Plan, applied to certain irregular events

planned at Harbourside Place, such as public events involving road closures and other traffic

concerns, anticipation of an extraordinarily high number of attendees (such as events celebrating

St. Patrick’s Day, Christmas Tree lighting, annual Boat Parade, Holiday Choir Sign-off, Memorial

Day, July 4th and New Years’ Eve) and heightened safety concerns. Usually these special event

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permit situations would require additional police or paramedic staffing because of the expected

increase in attendees as compared to regular events at Harbourside Place.

16. The TOWN was not empowered by the Harbourside PUD or the Site Plan to

dictate or restrain the content of performances occurring at Harbourside’s outdoor amphitheater

(including the use of instruments and singing); the types of musical instruments that could be used

by artistic performers, or the genre of music performed.

17. The “Harbourside Events Programming Schedule, dated 09/03/10, revised on

01/29/13, received and dated by the Department of Planning and Zoning on 01/31/13” (the

“Approved Event Program”) was incorporated into the Harbourside PUD. The Approved Event

Program is attached hereto within Composite Exhibit “1”.

18. Ord. 44-10 amended Condition No. 22 of the Harbourside PUD to provide that the

annual exempt events program could be “repealed in part or total by the Town, if the town

determines the exempt events are creating significant impacts that warrant revisions to the criteria

and requirements.”

19. Pursuant to Condition No. 10 of Res. 2-13, all events not included within the

annual exempt events program were required to be submitted to the TOWN “60 days prior to the

scheduled event” and approved by the TOWN, but no more than 24 such events could be

approved.

20. Under the Harbourside PUD and Site Plan, HARBOURSIDE was entitled to

obtain certificates of occupancy for the developed areas on its property, upon demonstrating that

its outdoor amphitheater could be operated while complying with the TOWN’s sound level

regulations. The TOWN on October 1, 2014 issued permanent certificates of occupancy for

Harbourside Place (attached hereto as Composite Exhibit “2”). The TOWN then exacted a

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liquidated damages payment of $200,000.00 from HARBOURSIDE because HARBOURSIDE

had failed to open for business earlier in 2014 as the TOWN had wanted.

21. None of the regularly-scheduled events programmed by HARBOURSIDE for its

outdoor amphitheater at Harbourside Place require a special event permit under the TOWN’s

Code, the Harbourside PUD or the Site Plan.

22. In an effort to ensure Noise Ordinance compliance and to cooperatively work

through issues associated with sound amplification, attenuation and mitigation at the outdoor

amphitheater, the TOWN and HARBOURSIDE agreed to use the special event permit process

temporarily even for regularly-scheduled events to be held at the outdoor amphitheater.

23. HARBOURSIDE’s outdoor amphitheater meets the sound level requirements of

the TOWN’s Noise Ordinance, in large part as a result of thousands of dollars in sound mitigation

equipment installed by HARBOURSIDE as demanded by the TOWN.

24. The TOWN’s special event permit process required HARBOURSIDE to pay

permitting fees ranging from $100.00 to $400.00 per event. The TOWN also mandated that

HARBOURSIDE hire the TOWN’s police personnel for event security and traffic control, at

exorbitant cost to HARBOURSIDE.

25. The special event permit process required HARBOURSIDE to submit a Statement

of Use for each performance at the outdoor amphitheater. As directed by the TOWN, the

Statements of Use for particular events provided that “…no rap, hip-hop, heavy metal, rock, etc.”

would be played. As a result, most of the special event permits issued for performances at the

amphitheater included the TOWN’s prohibition against the playing of rap, hip-hop, heavy metal,

rock, and presumably similar forms of music. Most recently, the TOWN fined HARBOURSIDE

for presenting free reggae music events that had been regularly presented on Sunday afternoons

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by HARBOURSIDE free to the public, because those events included the use of drums or bass

instruments that the TOWN had decided to restrain.

26. Section 27-293(b) authorizes the Director of Planning and Zoning (the “Director”)

(presumably the Town Manager’s designee) to attach conditions to special event permits. With

regard to noise, §27-293(b)(2) states: “Noise limitations. Noise limitations more restrictive than

the present code may be imposed for the benefit of surrounding uses.”

27. The TOWN issued special event permits for every event held at the outdoor

amphitheater throughout 2015;through these permits the TOWN imposed upon HARBOURSIDE

conditions regarding noise (including decibel levels) and other conditions more stringent than any

conditions imposed by the Harbourside PUD and Site Plan, or the TOWN’s Noise Ordinance.

For example, permits regarding live music events often included these conditions: “Except for

the use of a cajón, no other bass, drums, or percussion instruments shall be permitted.”, or “The

use of bass, drums and percussion instruments shall not be permitted.”

The special event permits issued to HARBOURSIDE by the TOWN for events throughout 2015

contained similar prohibitions on the content of performances including the genres of music and

types of musical instruments that could be used in performances at the outdoor amphitheater.

28. A special event permit is not required under the Noise Ordinance in order for

anyone to use a bass guitar, drums or other percussion (or perform live music) lawfully within the

TOWN. Yet the TOWN through its special event permits process has continuously imposed such

conditions and restrictions upon HARBOURSIDE. Most recently as a result of a December 9,

2015 Special Town Magistrate hearing, the TOWN obtained two (2) awards of $10,000.00 each

against HARBOURSIDE (attached hereto as Composite Exhibit “3”), based on

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HARBOURSIDE’s use of drums or bass instruments (and live music) at two events at its outdoor

amphitheater that the TOWN had restrained by prior permit conditions.

29. The TOWN through its special event permits process has imposed upon

HARBOURSIDE an exterior sound standard [55 Leq dB(A) measured over a three minute

interval] to gauge HARBOURSIDE’s compliance, even though that sound standard is not

prescribed by the Noise Ordinance; in fact, the sound standard the TOWN arbitrarily continues to

impose upon HARBOURSIDE is more stringent than the sound standard (and measurements for

compliance purposes) set forth in the Noise Ordinance.

30. During the development approval process for Harbourside Place which culminated

in the Harbourside PUD and Site Plan, HARBOURSIDE never agreed that the TOWN could

dictate or restrain the content of the events and performances at its outdoor amphitheater.

31. The TOWN’s prohibitions of musical performances at HARBOURSIDE’s outdoor

amphitheater, including its prohibition of certain genres of music or the use of certain musical

instruments, constitute a continuing pattern of unconstitutional prior restraints on protected

speech.

32. The TOWN has used, and continues to use, its touted regulatory authority and the

imposition of punitive civil fines to coerce HARBOURSIDE to comply with its unlawful

demands. Accordingly, resort to this Court for relief is necessary and warranted.

HARBOURSIDE HAS INVESTED SUBSTANTIALLY IN HARBOURSIDE PLACE

BASED ON THE TERMS AND CONDITIONS OF THE HARBOURSIDE PUD AND SITE

PLAN

33. Consistent with the requirements of the Harbourside PUD and Site Plan,

HARBOURSIDE in fact designed and constructed Harbourside Place at a cost of more than

$150,000,000.00, including the erection of an outdoor amphitheater, and purchase and installation

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of extensive sound amplification, attenuation and mitigation equipment and features for its regular

use, at a cost in excess of $1.5 million, plus the cost of operations including the events regularly

presented at the outdoor amphitheater. The outdoor amphitheater is on an otherwise developable,

income producing portion of Harbourside Place.

34. Since its opening to the public, HARBOURSIDE has presented free live music and

other events at its outdoor amphitheater, including weekend musical and holiday events.

HARBOURSIDE has expended more than $700,000.00 to present those events to the public for

free, as required by the Harbourside PUD and Site Plan. In addition, for a substantial period

before and after opening to the public, and to date, HARBOURSIDE has invested in excess of

$544,000.00 in sound amplification, attenuation and mitigation equipment and features, as well as

physical improvements to its outdoor amphitheater, at the direction of the TOWN and its sound

consultant in an effort to satisfy the TOWN’s appetite to impose more and more conditions and

prior restraints on HARBOURSIDE’s events. HARBOURSIDE’s expenditure of these funds

provides a tangible public benefit at no cost to the TOWN or to its residents or visitors attending

these events at Harbourside Place.

35. Consistent with its opening to the public in 2014, HARBOURSIDE began leasing

retail space at Harbourside Place to retailers and restaurants, including for instance, The Woods

Jupiter, Deep Blu Seafood Grille, Bravo! Cucina Italiana, Calaveras Cantina, Burger Fi, Tommy

Bahama and White House Black Market. These and other tenants contemplated (as did

HARBOURSIDE when investing millions of dollars into Harbourside Place) that

HARBOURSIDE’s outdoor venue would be regularly used to present public entertainment

programs which would attract consumers to Harbourside Place generally, and to their restaurants

and retail stores specifically. Upon information and belief, HARBOURSIDE’s tenants

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contemplated the free musical and other events scheduled for HARBOURSIDE’s outdoor

amphitheater, and the benefits that their businesses would reap by the customer traffic created by

those events, when deciding to open their businesses at HARBOURSIDE. .

36. HARBOURSIDE has complied with the requirements under the Harbourside PUD

and Site Plan, particularly concerning its right as an “outdoor venue” under the Noise Ordinance.

Among other things, HARBOURSIDE has presented reports and analyses establishing that

HARBOURSIDE is able to hold events using exterior amplified sound equipment while

maintaining compliance with the Noise Ordinance, which reports and analyses were accepted by

the TOWN’s technical staff.

37. HARBOURSIDE has fully satisfied each requirement delineated in the

Harbourside PUD and Site Plan to establish its right as an outdoor venue under the Noise

Ordinance.

NOISE COMPLAINTS AND THE TOWN’S “BUYER’S REMORSE”

38. Even though HARBOURSIDE has presented dozens of events during 2015,

HARBOURSIDE has been cited only once by the TOWN for allegedly violating any noise level

limitations. In that sole instance, the TOWN admitted the violation was based on a stricter noise

level limitation provided in a special event permit, and that HARBOURSIDE had not violated the

noise level limitations prescribed in the Noise Ordinance. In other words, HARBOURSIDE did

not exceed the noise level limitations applicable to every similar property in the TOWN, and was

subjected to uniquely stricter restrictions through the TOWN’s special event permit process which

was not contemplated by the Harbourside PUD and Site Plan for regular events.

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THE TOWN’S NOISE ORDINANCE ADEQUATELY ADDRESSES HARBOURSIDE’S

USE OF ITS OUTDOOR AMPHITHEATER

39. The TOWN’s Noise Ordinance prescribes the standards by which exterior sounds

created by any property owner should be measured at a receiving property, and the calculations

required to determine whether the exterior sounds at the receiving property exceed the prescribed

sound ceilings.

40. The TOWN has acted (and continues to act) inconsistent with its Noise Ordinance

including the treatment of outdoor venues such as Harbourside Place thereunder. Under the guise

of its land use and zoning authority, the TOWN has imposed upon HARBOURSIDE a variety of

over-reaching, unconstitutional and unlawful terms and conditions concerning the regularly-

scheduled use of the Harbourside Place outdoor amphitheater, which are arbitrary and capricious,

and designed to circumvent the TOWN’s Noise Ordinance (and the outdoor venue provisions

thereunder) and HARBOURSIDE’s rights under the Harbourside PUD, Site Plan and Noise

Ordinance, and the United States and Florida Constitutions.

41. The Noise Ordinance sets standards for acceptable levels of exterior sounds

created throughout various zones within the Town. These standards are expressed as allowable

maximum decibel levels. Section 13-125(a) of the Noise Ordinance provides, in pertinent part:

Sec. 13-125. - Exterior sound standards.

(a) The following sound standards, as expressed by the equivalent continuous sound level (Leq), unless otherwise specifically indicated, shall apply to all property with a designated sound zone:

Table 1: Allowable exterior sound levels per sound zone

Zone Daytime Sound Level (7:00 a.m. to

10:00 p.m.) Nighttime Sound Level (10:00 p.m. to

7:00 a.m.)

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Residential sound zone

Leq 55 dB(A) Leq 45 dB(A)

Mixed use sound zone


Commercial sound zone


Industrial sound zone


Table 2: Allowable exterior sound levels per sound zone for outdoor venues approved with extended hours

Zone Daytime Sound Level

(7:00 a.m. to 11:00 p.m.)

Transitional Nighttime Sound Level (11:00 p.m. to 12:00

a.m.)

Nighttime Sound Level (12:00 a.m. to 7:00

a.m.)

Residential sound zone

Leq 55 dB(A) Leq 45 dB(A) Leq 45 dB(A)

Mixed use sound zone


Commercial sound zone


Industrial sound zone


42. A violation of these exterior sound standards occurs if a sound emanating from a

property within the Town, when measured on any other receiving property, persists over a

specified period of time and at a specified level over and above the sound standards described in

the Tables set forth in Section 13-125(a). More specifically, Section 13-125(b) of the Town’s

Code provides:

(b) It is unlawful for any person at any location within the incorporated area of the Town to create any sound, or to allow the creation of any sound on property owned, leased, occupied or otherwise controlled by such person or business, which

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causes the sound level when measured on any other property, to exceed either of the following:

(1) The sound standard plus Leq five dB(A) for no more than 7½ minutes in any 30-minute time period;

(2) The sound standard plus Leq 10 dB(A) for no more than three minutes in any 30-minute time period;

(3) The sound standard plus Leq 15 dB(A) for no more than one minute in any 30-minute time period; or

(4) A maximum instantaneous sound level equal to the value of the sound standard plus Leq 20 dB(A) for any period of time (measured using A-weighted slow response).

43. The TOWN’s Noise Ordinance also requires “ambient sound levels” to be

considered when evaluating if a violation of the sound ordinance has occurred:

(c) If the ambient sound level exceeds the standard as noted in Table 1 and 2 above, of the designated residential sound zones, the ambient sound level shall be considered the standard, but at no time shall a sound source exceeds the standard noted in section 13-125(b) at the property line.

44. If the receiving property lies in a sound zone that is different that the sound zone

in which the emitting property lies, Code Section 13-125(d) provides:

the sound standard shall be the logarithmic dB(A) average of the standards from the respective sound zones. If an acoustically effective intervening wall or barrier exists between the sound source of concern and the sound-sensitive receiver(s), the effects of the wall must be determined. Otherwise, the sound measurements may be conducted along the vertical plane of the property boundary or anywhere else on the receiving property.

THE TOWN’S CONTINUING ABUSE OF MUNICIPAL POWERS UNDER THE GUISE

OF LAND DEVELOPMENT REGULATION

45. Contrary to the terms and conditions of the Harbourside PUD and Site Plan, the

TOWN continues to insist that HARBOURSIDE apply for and obtain special event permits for

each and every regularly-scheduled event programmed by HARBOURSIDE at its outdoor

amphitheater; these permits continuously restrict the content and musical expression of many

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events at the outdoor amphitheater. Copies of the TOWN’s special event permits issued for events

scheduled at HARBOURSIDE’s outdoor amphitheater for the weekend of November 6 through

November 8, 2015, are attached hereto as Composite Exhibit “4”. If HARBOURSIDE does not

use the special event permit process by which the TOWN has worked its content-based prior

restraints, the TOWN has indicated that it will shut down public events at the Harbourside Place

outdoor amphitheater.

46. Notwithstanding HARBOURSIDE’s timely notification of its upcoming musical

performances at the Harbourside Place outdoor amphitheater, the TOWN has consistently issued

special event permits for such performances only days before each performance is to take place,

and has regularly restricted the content of the music (or the use of certain musical instruments).

The TOWN’s issuance of special event permits for routinely programmed events, sometimes as

late as two hours before the event at Harbourside Place is scheduled to begin, has effectively

precluded HARBOURSIDE’s meaningful objection and review of the conditions imposed by the

TOWN for the upcoming events.

47. Even though the Harbourside PUD and Site Plan contemplated regularly scheduled

events at the outdoor amphitheater that would be planned through the Approved Event Program,

recently the TOWN issued a notice (attached hereto as Exhibit “5”) denying approval of

regularly-scheduled events based upon alleged violations of the TOWN’s content-based restraints

imposed through the special event permits that had been issued for “Island Sundayz” (FKA Live

Music on Sunday) on November 8, 2015 and November 15, 2015. The alleged violation that

occurred during these events was the playing of drums or bass instruments prohibited by

Condition 13 of both of those special event permits. As a result of these alleged violations, the

TOWN has denied “the application for ‘Island Sundayz’ (FKA Live Music on Sunday) scheduled

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for November 22, 2015 and subsequent Sundays until further notice.”

48. For the weekend of November 13 through 15, 2015, and contrary to past

approvals, the TOWN through special event permits prohibited HARBOURSIDE from including

‘live music’ altogether during its regularly-scheduled “Farmer’s Market” on Sunday, and seeks to

limit any performances Sunday to four hours (inclusive of breaks). Copies of the TOWN’s special

event permits issued for events scheduled at HARBOURSIDE’s outdoor amphitheater for the

weekend of November 13 through November 15, 2015, are attached hereto as Composite Exhibit

“6”.

49. Although HARBOURSIDE’s outdoor amphitheater is compliant with the TOWN’s

regulations protecting neighboring residents from excessive sound, the TOWN has imposed (and

continues to impose) other arbitrary, content-based and illegal conditions upon HARBOURSIDE

which HARBOURSIDE has no legal obligation to satisfy. The TOWN has imposed invalid

conditions, and then used its regulatory powers (including threatened shutdowns and the use of

police personnel) to coerce HARBOURSIDE’s compliance or to punish HARBOURSIDE with

exorbitant fines awarded in enforcement of conditions the TOWN had no legal right to impose in

the first instance.

50. The TOWN’s arbitrary and content-based actions have severely limited and

unlawfully interfered with HARBOURSIDE’s regular use of its outdoor amphitheater. The

TOWN’s actions have injured and obstructed, and continue to injure and obstruct,

HARBOURSIDE’s business operations and that of its tenants who expected that

HARBOURSIDE would be the main entertainment center along the TOWN’s Riverwalk.

51. HARBOURSIDE has consistently complied with the TOWN’s Noise Ordinance.

HARBOURSIDE has responded to several demands by the TOWN and its sound consultant

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concerning measures to manage and limit exterior sounds emanating from HARBOURSIDE’s

outdoor amphitheater, at tremendous expense to HARBOURSIDE. Despite HARBOURSIDE’s

efforts and investments, the TOWN has continued to abuse its powers when dealing with

HARBOURSIDE, including without limitation:

(a) unilaterally seeking to impose upon HARBOURSIDE content-based

restraints and other terms and conditions inconsistent with the Harbourside PUD and Site Plan, and

the United States and Florida Constitutions;

(b) administratively seeking to impose upon HARBOURSIDE new terms and

conditions inconsistent with HARBOURSIDE’s right as an outdoor venue under the TOWN’s

Noise Ordinance;

(c) imposing exterior sound standards more stringent than those prescribed

under the Noise Ordinance;

(d) interfering with the daily operations at Harbourside Place including the

details of event programming;

(e) imposing conditions not authorized or even contemplated by the TOWN’s

Noise Ordinance, including

(i) limitations on the hours on any given day during which

HARBOURSIDE may host public events at its outdoor amphitheater that are otherwise permitted

by the Noise Ordinance;

(ii) the days of any given week during which HARBOURSIDE may host

public events at its outdoor amphitheater;

(iii) the types of musical instruments that performers may use during

events hosted by HARBOURSIDE at its outdoor amphitheater; and

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(iv) the types of music that may be performed during events hosted by

HARBOURSIDE at its outdoor amphitheater.

52. The TOWN has exempted itself from any of the arbitrary conditions it has imposed

on HARBOURSIDE, when the TOWN has hosted events at or immediately adjacent to

Harbourside Place.

53. In order to regulate or restrain future content presented at HARBOURSIDE’s

outdoor amphitheater, the TOWN has continued to demand that HARBOURSIDE seek and obtain

special event permits for virtually every event that HARBOURSIDE intends to host at its outdoor

amphitheater, even though the Harbourside PUD and Site Plan only authorize the TOWN to

require special event permits for truly special events in which public turnout is expected to be

exceptionally high, requiring additional security and crowd control measures.

54. Rather than treat HARBOURSIDE’s outdoor amphitheater as an ‘outdoor venue’

under its Noise Ordinance, the TOWN has continued to bury HARBOURSIDE in a perpetual

special event permit atmosphere through which the TOWN has imposed upon HARBOURSIDE

content-based programming conditions, and exterior sound conditions (and other conditions) that

are more stringent than those required of other property owners similarly situated, and more

stringent than those applicable to HARBOURSIDE under the TOWN’s Noise Ordinance (whether

or not HARBOURSIDE’s outdoor amphitheater is treated as an “outdoor venue” under the

TOWN’s Noise Ordinance).

THE TOWN’S ECONOMIC DEVELOPMENT AGREEMENT WITH HARBOURSIDE

55. On or about February 9, 2011, the TOWN through its CRA and Jupiter

Waterways, LLC entered into an Economic Development Agreement (the “Agreement”), a copy

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of which is attached hereto as Exhibit “7”. HARBOURSIDE currently holds all rights and

obligations under the Agreement that were previously held by Jupiter Waterways, LLC.

56. The Agreement provides that HARBOURSIDE is entitled to receive a Tax

Increment Incentive Payment annually for a period of 15 years, which is equal to 50% of the Tax

Increment Revenue resulting from the increases in the taxable assessed value of the properties

comprising Harbourside Place up to $350,000.

57. The Tax Increment Incentive Payment(s) were incentives and consideration for the

development of Harbourside Place, which the CRA admitted in the Agreement “will result in a

significant financial impact for the community which has been estimated at an increase in ad

valorem taxes of as much as $15,000,000 over the life of the CRA.”

58. The Agreement specifies only two conditions to the CRA’s obligation to make Tax

Increment Incentive Payment(s) to HARBOURSIDE (“Tax Incentive Payment Conditions”).

Section 3 of the Agreement expressly conditions Tax Increment Incentive Payment(s) due to

Harbourside on (a) the real estate taxes levied on the Property are paid prior to becoming

delinquent, and (b) the Owner complies at all times with the performance benchmarks referenced

in section 4 in the Agreement.

59. HARBOURSIDE has satisfied the Tax Incentive Payment Conditions.

60. In an effort to avoid its obligation to make the Tax Incentive Payment(s) to

HARBOURSIDE, the CRA Commission on November 17, 2015 voted to notify

HARBOURSIDE of its alleged breach of the Agreement based on HARBOURSIDE’s alleged

failure to comply with the TOWN’s unconstitutional amphitheater use conditions.

61. On November 20, 2015, the TOWN and CRA attorney, Thomas J. Baird, sent a

letter to HARBOURSIDE (the “November 20 Notice”), which is attached hereto as Exhibit “8”,

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notifying HARBOURSIDE of its alleged breach of the Agreement.

62. The CRA issued its November 20 Notice simultaneously with the TOWN’s

issuance of its notices of violation (and notices of hearing) on which the TOWN obtained the

award of civil fines by its Special Magistrate Judge, as alleged in Paragraph 29 above (and within

Composite Exhibit “3” attached hereto), and simultaneously with the TOWN’s denial of future

permits for Sunday afternoon regular programming (attached hereto as Exhibit “5”) because of

the use of drums and bass instruments in contradiction of the TOWN’s prior restraints on such

expressions.

63. The infirmities (constitutional and otherwise) that continue to plague the TOWN’s

imposition of conditions upon HARBOURSIDE under its special event permitting scheme,

equally undercut the CRA’s claim that HARBOURSIDE is in breach of the Agreement by

allegedly violating those same invalid conditions.

64. Section 25 of the Agreement is a boilerplate provision that requires

HARBOURSIDE to “at all times be in compliance with all applicable federal, state and local

laws, statutes, rules and regulations…..”Section 25 is not a condition governing the CRA’s

obligation to make Tax Increment Incentive Payment(s) to HARBOURSIDE. If HARBOURSIDE

is in violation of any special event permit conditions (assuming their propriety in the first

instance), the TOWN is afforded remedies under its Code Compliance regulations. The TOWN in

fact has used those Code Compliance regulations to impose coercive fines upon HARBOURSIDE

for alleged violations of invalid conditions on the use of its outdoor amphitheater.

65. On December 2, 2015, HARBOURSIDE responded to the November 20 Notice of

Breach by letter to the TOWN and CRA attorney, which is attached hereto as Exhibit “9”.

66. The TOWN through its CRA asserts a right to refuse to make tax incentive

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payment(s) to HARBOURSIDE based on HARBOURSIDE’s alleged violations of the same

conditions and prior restraints that have infected, and continue to infect, the TOWN’s lawful use

of its outdoor amphitheater.

COUNT I – 42 U.S.C. §1983 – VIOLATIONS OF THE FIRST AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION BY THE TOWN OF

JUPITER

67. The allegations set forth in paragraphs 1 through 66 are re-alleged and

incorporated as if fully set forth herein.

68. This is an action pursuant to 42 U.S.C. §1983 seeking redress for continuing

violations of the First and Fourteenth Amendments to the United States Constitution.

69. “Music, as a form of expression and communication, is protected under the First

Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d

661 (1989). Music is created by the playing of musical instruments. This protection extends to

amplified music. See Saia v. New York, 334 U.S. 558, 68 S. Ct. 1148, 92 L.Ed. 1574 (1948)

(holding use of sound amplification equipment within reasonable limits is aspect of free speech

protected by First Amendment).

70. Harbourside Place is a private business enterprise that enjoys business

relationships with many independent retail tenants. The TOWN has no legitimate role in

managing the daily operations and business plans of HARBOURSIDE on its privately-owned

property. The TOWN has no legitimate interest in controlling or prohibiting the content of music

that may be played at Harbourside’s outdoor amphitheater or directing what musical instruments

may or may not be used. The TOWN’s police power authorizes it to act to protect the health,

welfare and safety of the people, but limiting by the protections afforded individuals by the

United States Constitution.

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71. The musical performances at the Harbourside Place outdoor amphitheater

constitute protected expression under the First and Fourteenth Amendments, as well as under

Article 1, Section 4 of the Florida Constitution; the TOWN’s interference with, and prior restraint

of, those activities on HARBOURSIDE’s private property also raise Fifth Amendment concerns.

72. The Town’s Manager, its Town Council and Director of Planning and Zoning,

under color of law or authority, have adopted and implemented a de facto policy of the TOWN to

take any and all steps necessary to restrain and/or prohibit constitutionally-protected musical

performances on HARBOURSIDE’s private property through the special event permitting

process.

73. On its face, the TOWN’s special event permitting ordinance does not apply to the

regularly-scheduled musical performances at Harbourside Place, but the TOWN under color of

law has required use of this process through the following threatened actions:

(a) Restraining protected speech and expression through prior restraint;

(b) Repeal or modification of the Approved Event Program;

(c) Shutting down musical performances through police action; and

(d) Refusal to recognize the outdoor amphitheater as an ‘outdoor venue’ under

the Noise Ordinance, notwithstanding HARBOURSIDE’s compliance with the

Harbourside PUD and Site Plan.

74. The TOWN has imposed, and plans to continue to impose, unlawful prior

restraints on the musical performances at Harbourside Place, including:

(a) The requirement to obtain special event permits for regularly scheduled

events already covered by the Approved Event Program;

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(b) The TOWN’s direction that HARBOURSIDE agree not to play rap, hip-

hop, heavy metal, rock, etc. at the outdoor amphitheater, and inclusion of such

agreement into the conditions of special permits by reference;

(c) The TOWN’s prohibition or limitation of the playing of specific musical

instruments in special event permits;

(d) The TOWN’s action to deny HARBOURSIDE ‘permission’ for future “live

music” on Sundays, and/or the use of drums and bass guitars, based on

HARBOURSIDE’s failure to abide by the TOWN’s prior restraints on such

expressions; and

(e) The TOWN’s imminent repeal of the Approved Event Program to impose

conditions on all future performances.

75. Prior restraints on speech bear a heavy presumption against their constitutionality.

The settled rule is that a system of prior restraint avoids constitutional infirmity only if it takes

place under procedural safeguards designed to obviate the dangers of a censorship system. Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). No such procedural safeguards exist in

the TOWN’s Code of Ordinances.

76. The TOWN’s prohibitions on the types of musical instruments that may be played

at the Harbourside Place outdoor amphitheater constitute content-based restrictions on protected

expression, because they bar the genres or forms of musical expression predicated on the

prohibited musical instruments.

77. The TOWN’s direction regarding the types of music that may be performed at the

outdoor amphitheater constitutes content-based restrictions on protected expression.

78. Government restrictions on speech based upon the content of the message are

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presumptively unconstitutional and are subject to a higher level of scrutiny as a result. Solantic,

LLC v. City of Neptune Beach, 410 F.3d 1250, 1258–59 (11th Cir.2005). Because the TOWN's

special event permits impose content-based restrictions on their face, those provisions can stand

only if they survive strict scrutiny, which requires the TOWN to show that the restriction furthers

a compelling interest and is narrowly tailored to achieve that interest. Reed v. Town of Gilbert,

Ariz., 135 S. Ct. 2218, 2231 (2015).

79. A compelling interest is “an interest of the highest order.” Reed v. Town of

Gilbert, Ariz., 135 S. Ct. 2218, 2232 (2015). Mere speculation of harm does not constitute a

compelling interest. Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm'n of New York,

447 U.S. 530, 543 (1980). The Town already conceded it did not have an interest of the highest

order when it issued the special event permits as Class “A” special permits, because such permits

are issued for temporary uses that are “anticipated to have minimal impacts on surrounding

uses.” §27-271(1), Town Code.

80. The TOWN’s legitimate interest when it comes to events at the outdoor

amphitheater is preventing excessive noise, which is not a compelling interest.

81. The TOWN’s conduct has deprived, and continues to deprive, HARBOURSIDE of

rights, privileges or immunities secured by the Constitution or laws of the United States.

WHEREFORE, HARBOURSIDE PLACE, LLC respectfully requests that this Court enter

a judgment providing that:

(a) the musical performances and other events at the Harbourside Place outdoor

amphitheater constitute expression protected by the First Amendment;

(b) the following constitute unlawful prior restraints on expression protected by

the First Amendment:

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(i) The requirement to obtain special event permits for regularly

scheduled events already covered by the Approved Event Program;

(ii) The TOWN’s direction that HARBOURSIDE agree not to play rap,

hip-hop, heavy metal, rock, etc. at the outdoor amphitheater, and inclusion

of such agreement into the conditions of special permits by reference;

(iii) The TOWN’s prohibition or limitation of the playing of specific

musical instruments in special event permits; and

(iv) The TOWN’s imminent repeal of the Approved Event Program to

impose conditions on all future performances;

(c) The TOWN’s prohibition on the types of musical instruments that may be

played at the Harbourside Place outdoor amphitheater constitute content-based

restrictions on protected expression;

(d) The TOWN’s direction regarding the types of music that may be performed

at the outdoor amphitheater constitutes content-based restrictions on protected

expression;

(e) awarding damages;

(f) awarding attorneys’ fees and costs pursuant to 42 U.S.C. §1988(b), and

(g) awarding such other and further supplemental relief to HARBOURSIDE

PLACE, LLC as may be just and proper.

COUNT II – DECLARATORY AND SUPPLEMENTAL RELIEF AGAINST

THE TOWN OF JUPITER



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83. This is an action for declaratory and supplemental relief brought pursuant to

Florida Statutes Section 68.011, et seq., Article 5, section 5 of the Florida Constitution, and

Article 1, Section 4 of the Florida Constitution.

84. A bona fide controversy exists between the parties with regard to their respective

rights and obligations of HARBOURSIDE and the TOWN under the Harbourside PUD, Site Plan

and Noise Ordinance, and the United States and Florida Constitutions.

85. HARBOURSIDE has asserted that:

(a) It has complied with those conditions delineated in the Harbourside PUD

and Site Plan concerning the use of its outdoor amphitheater as an “outdoor venue”, and is an

“outdoor venue” under the TOWN’s Noise Ordinance;

(b) As an “outdoor venue” under the TOWN’s Noise Ordinance,

HARBOURSIDE is entitled to host events producing exterior sounds, subject to the hours of

operation specified in Table 2 under Section 13-125(a) of the Noise Ordinance.

(c) while HARBOURSIDE should be recognized as an “outdoor venue” under

the TOWN’s Noise Ordinance, HARBOURSIDE is entitled, at a minimum, to host events

producing exterior sounds, subject to the hours of operation specified in Table 1 under Section 13-

125(a) of the Noise Ordinance;

(d) In any event, HARBOURSIDE is not obligated to seek or obtain special

event permits for each and every regularly-scheduled public event HARBOURSIDE wishes to host

at its outdoor amphitheater but is required to obtain a special event permit only regarding those

unique events for which HARBOURSIDE and the TOWN reasonably anticipate the need for road

closures and other traffic concerns, an extraordinarily high number of attendees (such as Holiday

events or New Years’ Eve celebrations) and heightened safety concerns;

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(e) The TOWN’s Noise Ordinance prescribes certain standards by which

exterior sounds created by any property owner should be measured at a receiving property, and the

calculations required to determine whether the exterior sounds at the receiving property exceed the

prescribed sound ceilings;

(f) while the TOWN may fairly enforce its Noise Ordinance according to its

terms, and apart from events that genuinely require “special event permits” under the TOWN

Code, the TOWN does not possess the lawful authority to dictate:

(i) the hours during which HARBOURSIDE hosts public events that are

more restrictive than the hours expressly permitted by the Noise Ordinance;

(ii) the days of the week on which HARBOURSIDE hosts public events,

or

(iii) the types of musical instruments, or genre of music or other

entertainment, which HARBOURSIDE elects to offer when it hosts public events.

86. The TOWN has refused to recognize HARBOURSIDE as an “outdoor venue”

under its Noise Ordinance despite acknowledging that HARBOURSIDE has complied with all

those conditions delineated in the Harbourside PUD and Site Plan concerning the use of its outdoor

amphitheater as an “outdoor venue” (including acceptance of the exterior sound analysis provided

by HARBOURSIDE’s sound consultant); continues to demand that HARBOURSIDE seek and

obtain special event permits for each and every public event HARBOURSIDE wishes to host at its

outdoor amphitheater; continues to impose terms and conditions upon HARBOURSIDE’s use of

its outdoor amphitheater that exceed the conditions provided by the TOWN’s Noise Ordinance;

continues to impose terms and conditions upon HARBOURSIDE’s use of its outdoor amphitheater

that have no genuine lawful basis under its Code such as dictating the hours, days and specific

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musical instruments or genre of music that HARBOURSIDE may wish to offer to the public at its

outdoor amphitheater, and refuses to recognize and honor HARBOURSIDE’s vested rights under

the Harbourside PUD and Site Plan.

87. While the TOWN has consistently monitored exterior sounds created by

HARBOURSIDE by measuring sound levels at a receiving property (in this case, the Water’s Edge

residential zone across the Intracoastal Waterway (and to the west) from Harbourside Place), the

TOWN has asserted a continuing right to use the “special event permits” process to regularly

impose upon HARBOURSIDE exterior sound standards measured at the receiving property that

are more stringent than those prescribed by the TOWN’s Noise Ordinance.

88. The TOWN has not declared HARBOURSIDE in violation of the TOWN’s Noise

Ordinance; HARBOURSIDE has remained in compliance with the TOWN’s Noise Ordinance.

Instead, the TOWN has manufactured conditions through its special event permit scheme

especially to restrain HARBOURSIDE, and then has declared violations of those conditions to

restrict protected speech and musical content, and otherwise interfere with private property rights.

89. On one recent Sunday evening (November 8, 2015), the TOWN exerted its police

force to forcibly shut down a permitted musical event that was taking place at HARBOURSIDE’s

outdoor amphitheater, on the ground that HARBOURSIDE that day had presented up to four hours

of music at its outdoor amphitheater and the TOWN would not allow further music. The TOWN

arbitrarily declared a four-hour limitation on HARBOURSIDE’s scheduled events, and instructed

its police force to enforce that arbitrary limitation (which they did) while several members of the

public enjoying the music looked on in disbelief. The special event permits issued by the TOWN

for those events scheduled for November 8 at HARBOURSIDE’s outdoor amphitheater, did not

include the arbitrarily-declared four-hour limitation. The TOWN through its police force directly

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violated the special event permits the TOWN had issued for events being held on November 8,

2015 at HARBOURSIDE’s outdoor amphitheater.

90. On a routine basis, on the second Saturday of each month, HARBOURSIDE holds

an exotic car show with Lamborghini; there is live music from 6:00pm to 10:00pm in conjunction

with the show.

91. On a routine basis, HARBOURSIDE also hosts a Farmer’s Market from 10:00am

to 3:00pm with an acoustic artist; from 3:00pm to 7:00pm on Sundays, HARBOURSIDE presents

an “island style” band (which now has been shut down by the TOWN indefinitely).

92. All conditions precedent to the bringing of this action have occurred, have been

performed, have been excused, or have been rendered futile or incapable of performance. Without

limitation, the TOWN’s treatment of HARBOURSIDE (through the terms and conditions imposed

by its technical staff, and the directives of the Town Manager) demonstrates that the TOWN has no

intention of treating HARBOURSIDE in accordance with the TOWN’s Noise Ordinance or the

Development Orders but instead intends to continue its “special” treatment of HARBOURSIDE

without end, in an arbitrary and capricious manner and without legal basis.

93. The parties are at odds as to their respective rights and duties.

94. The interests of the parties to this dispute are adverse and concrete, and all

necessary parties are within the jurisdiction of this Court. HARBOURSIDE does not merely seek

legal advice on questions raised out of curiosity or in the abstract, but seek this Court’s

determination of the respective rights of the parties premised upon an ascertainable state of facts.

Resolution of the dispute between and among the parties is of utmost importance, as the

declarations by this Court will directly determine the existence of valuable rights (and

corresponding obligations) which are held by one or more parties under the TOWN’s Noise

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Ordinance and the Development Orders, and shall guide the parties as they proceed in their daily

operations and administrative processes. The declarations sought by HARBOURSIDE are critical

as well because of the harm the TOWN’s actions have created, and continue to create, upon the

business interests of HARBOURSIDE, the interests of its many commercial tenants whose

businesses greatly benefit from HARBOURSIDE’s active use of its outdoor amphitheater, and the

interests of the public at large who regularly enjoy the free outdoor entertainment hosted by

HARBOURSIDE at its outdoor amphitheater.

95. There exists a practical need for declaratory and injunctive relief; this cause

presents the Court with a controversy based on concrete differences of opinion as to the legal and

equitable rights and interests of the parties, the proper interpretation of statutory rights and

performances thereunder, and the obligations of the parties under the tenancy arrangement alleged.

The rights of the parties are dependent upon the law applicable to their respective positions.

96. The claims and issues on which HARBOURSIDE seeks declaratory and injunctive

relief are ripe for adjudication. A prompt and final determination of the rights, liabilities and

interests of the various parties is absolutely essential, given that the issues raised by this action

directly affect the further relationships of the parties concerning HARBOURSIDE’s use of its

outdoor amphitheater and the success of Harbourside Place.

97. To give full force and effect to this Court’s final declarations, HARBOURSIDE is

entitled to the granting of further relief, including temporary and/or permanent injunctive relief,

and supplemental relief including writs of mandamus directed against the TOWN as this Court

may deem appropriate based on its declarations of rights and remedies.

98. HARBOURSIDE is entitled to temporary and permanent injunctive relief against

the TOWN, including a mandate that the TOWN enforce its Noise Ordinance and the Harbourside

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PUD and Site Plan as written, and preventing the TOWN’s enforcement of the manufactured

conditions alleged herein including the TOWN’s unlawful restraints on speech and musical

expressions. Irreparable harm will result if temporary and/or permanent injunctive relief is not

entered; an adequate remedy at law is unavailable to HARBOURSIDE; there is a substantial

likelihood of HARBOURSIDE’s success on the merits; and the granting of injunctive relief against

the TOWN will serve the public interest by compelling the TOWN simply to enforce its existing

Noise Ordinance, and the Harbourside PUD and Site Plan, fairly and not in a discriminatory or

unconstitutional manner towards HARBOURSIDE. The TOWN’s continued demand that

HARBOURSIDE obtain “special event permits” in order for HARBOURSIDE to lawfully use its

outdoor amphitheater is contrary to the TOWN’s Noise Ordinance and the Development Orders.

WHEREFORE, Plaintiff, HARBOURSIDE PLACE, LLC, requests entry of Judgment

against Defendant, THE TOWN OF JUPITER, FLORIDA, granting the following relief:

(a) a declaration that the Court has jurisdiction over this cause and these parties;

(b) a declaration that HARBOURSIDE has satisfied all conditions delineated in

the Development Orders concerning the use of its outdoor amphitheater as an “outdoor venue”,

and is an “outdoor venue” under the TOWN’s Noise Ordinance;

(c) a declaration that as an “outdoor venue” under the TOWN’s Noise

Ordinance, HARBOURSIDE is entitled to host events producing exterior sounds, subject to

compliance with Sections 13-125(a) and (b) of the TOWN’s Noise Ordinance and the hours of

operation specified in Table 2 under Section 13-125(a) of the Noise Ordinance;

(d) a declaration that if HARBOURSIDE is not an “outdoor venue” under the

TOWN’s Noise Ordinance, HARBOURSIDE is entitled at a minimum to host events producing

exterior amplified sounds, subject to compliance with Sections 13-125(a) and (b) of the TOWN’s

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Noise Ordinance and the hours of operation specified in Table 1 under Section 13-125(a) of the

Noise Ordinance;

(e) a declaration that in any event, HARBOURSIDE is not obligated to seek or

obtain “special event permits” for each and every regularly-scheduled public event

HARBOURSIDE wishes to host at its outdoor amphitheater;

(f) a declaration that the TOWN has acted arbitrarily, capriciously and

unconstitutionally against HARBOURSIDE with respect to the imposition of the “special event

permit” process, and/or its imposition against HARBOURSIDE of terms and conditions relating to

its use of its outdoor amphitheater, and continues to do so;

(g) a declaration that additionally and alternatively, the TOWN has imposed,

and continues to impose, terms and conditions against HARBOURSIDE relating to its use of its

outdoor amphitheater that exceed the TOWN’s lawful authority under its Noise Ordinance and the

Harbourside PUD and Site Plan, and are unconstitutional;

(h) a declaration that while the TOWN may fairly enforce its Noise Ordinance,

and the Harbourside PUD and Site Plan, according to their terms, and apart from events that

genuinely require special event permits under the TOWN Code, the TOWN does not possess the

lawful authority to dictate:

(i) the hours during which HARBOURSIDE hosts public events that are

more restrictive than the hours expressly permitted by the Noise Ordinance;

(ii) the days of the week on which HARBOURSIDE hosts public events,

or

(iii) the types of instruments, or genre of music or other entertainment,

which HARBOURSIDE elects to offer when it hosts public events;

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(i) a declaration that the TOWN pursuant to its Noise Ordinance shall monitor

HARBOURSIDE’s compliance by measuring exterior sounds created by HARBOURSIDE at the

Water’s Edge residential property line (the receiving property), provided that the calculations used

to determine whether HARBOURSIDE is compliant with the Noise Ordinance are performed in

strict accordance with Section 13-125(b)-(d) thereof, and notwithstanding ambiguous text in the

Development Orders suggesting sound monitoring for Noise Ordinance purposes might occur at

HARBOURSIDE’s property line;

(j) a declaration that as long as HARBOURSIDE complies with the standards

codified at Table 2 of Code Section 13-125(a) and as calculated under Section 13-125(b),

HARBOURSIDE has fully complied with the TOWN’s Noise Ordinance and shall be free from

interference or violation notices by the TOWN, and

(k) the granting of further relief, including temporary and/or permanent

injunctive relief, and supplemental relief including writs of mandamus directed against the TOWN,

as this Court may deem appropriate based on its declarations of the parties’ rights and obligations,

including without limitation, orders and judgments mandating that the TOWN:

(i) refrain from requiring HARBOURSIDE to apply for “special event

permits” for its regularly-scheduled outdoor venue events;

(ii) refrain from any communications or actions that tend to dictate or

prohibit, or seek to dictate or prohibit, the use of any particular type of musical instruments

(including percussion) or any genre of music, at HARBOURSIDE’s outdoor venue;

(iii) refrain from any communications or actions that tend to dictate or

prohibit, or seek to dictate or prohibit, HARBOURSIDE’s use of its outdoor venue on any

particular days of the week, or at any particular hours of the day or night, subject only to the

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requirement that HARBOURSIDE maintain compliance with Sections 13-125(a) and (b) of the

TOWN’s Noise Ordinance; and

(iv) treat HARBOURSIDE and its tenants fairly with respect to

Harbourside Place in all respects;

(l) such further declarations, and such further relief, as the Court deems

necessary and proper to effectuate its declarations of rights and remedies, and reserving

jurisdiction to consider awards of damages and professional fees resulting from the TOWN’s

unlawful activities and exercises of governmental powers without cause or legal justification.

COUNT III – ANTICIPATORY BREACH OF CONTRACT BY THE JUPITER

COMMUNITY REDEVELOPMENT AGENCY



100. This is an action for anticipatory breach of the Agreement by the CRA.

101. The Agreement constitutes a contract between HARBOURSIDE and the CRA.

102. HARBOURSIDE has performed, and continues to perform, all of its duties under

the Agreement.

103. Under the Agreement, the CRA has a duty to make the Tax Increment Incentive

Payment(s) to HARBOURSIDE (the first of which is due no later than May 1, 2016).

104. The CRA through its November 20 Notice of Breach has distinctly, unequivocally

and absolutely evidenced its refusal to perform its duty to make the Tax Increment Incentive

Payment(s) to HARBOURSIDE.

105. The CRA’s anticipatory breach of the Agreement has caused HARBOURSIDE to

suffer damages.

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WHEREFORE, Plaintiff Harbourside Place, LLC, demands judgment against Defendant,

Jupiter Community Redevelopment Agency, for damages, attorneys’ fees and costs pursuant to

Section 28 of the Economic Development Agreement, and for such other relief that this Court

deems just and proper.

BERGER SINGERMAN LLP Attorneys for Plaintiff One Town Center Road, Suite 301 Boca Raton, FL 33486 Telephone: 561-241-9500 Facsimile: 561-998-0028 By:_/s/ Anthony J. Carriuolo___________

Mitchell W. Berger Florida Bar No. 311340 [email protected] Anthony J. Carriuolo Florida Bar No. 434541 [email protected]

Email Designation per Fla. R. Jud.

Admin 2.516:

[email protected] [email protected] [email protected]

COMPOSITE EXHIBIT 1

2 3

4

5

6 7

8

9

1 0

1 1

12

13

ORDINANCE NO. 1-13 14

15

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF JUPITER, FLORIDA, AMENDING ORDINANCE NUMBERS 14-08 AND 44-10 PERTAINING TO THE PLANNED UNIT DEVELOPMENT KNOWN AS "HARBOURSIDE PUD"; PROVIDING FOR A WAIVER AUTHORIZING A REDUCTION OF THE DEPTH OF THE PARKING STALLS IN THE PARKING GARAGE; APPROVING AN AMPITHEATER AND AN OUTDOOR VENUE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.

16

17

1 8

19

20

2 1

22 23

24

25

26

'27

WHEREAS, pursuant to Ordinance No. 14-08, the Town Council of the 28

Town of Jupiter (Town) authorized the creation and development of a Planned 29

Unit Development (PUD) known as the Harbourside PUD; and, 30

WHEREAS, the Town Council approved an amendment to the 31

Harbourside PUD pursuant to Ordinance No. 44-10; and 32

WHEREAS, the Harbourside PUD is generally located on the northwest 33

comer of the intersection of Indiantown Road and US Highway One; and 34

WHEREAS, Harbourside Place, LLC., (the Owner) of the Harbourside 35

36 PUD which consists of approximately 9.0+/- acres of property, the legal

Ord No. 1-13 Page B

description of which is contained in Exhibit "A" which is attached hereto and

2 incorporated herein (the subject property); and

WHEREAS, Genti le Glas Holloway O'Mahoney and Associates is acting

4 as the authorized agent (the Applicant) for the Owner and has submitted an

5 application to amend the authorized development for the previously approved

6 Harbourside PUD; and

WHEREAS, the Applicant has submitted an application to request a 7

waiver of the parking requirements of the Town's Code, and an amendment of 8

9 the plans previously approved for the Harbourside PUD to reduce the depth of

io parking spaces in the parking garage from 19' to 17' 6" in Buildings 3A and 5 (the

i i Application); and,

WHEREAS, the Town's Planning and Zoning Commission has considered 12

13 the Application and has made its recommendations to the Town Council; and

WHEREAS, the Town Council has conducted a public hearing wherein it 14

15 considered the evidence and testimony presented by the Town staff, the

16 Applicant, the Owner, and other interested parties and members of the public,

17 regarding whether the Application is consistent with the Town's Comprehensive

18 Plan and meets the Town's Land Development Regulations; and

WHEREAS, at its hearing, the Town Council determined that certain 19

conditions, as set forth herein, are necessary for the Appl icat ion to be consistent 20

2i with the Town's Comprehensive Plan and to meet the Town's Land Development

Ord No. 1-13 Page C

Regulations, including those regulations specifically contained in Section 27-96 l

2 of the Town Code,

NOW, THEREFORE, BE IT ORDAINED BY T H E TOWN COUNCIL OF 3

4 THE T O W N OF JUPITER, FLORIDA, THAT:

Section 1. The whereas clauses are incorporated herein as the findings 5

6 of fact and conclusions of law of the Town Council.

Section 2. The Town Counci l hereby approves an amendment to the 7

8 Harbourside PUD as set forth below:

9 1) The Owner shall install and maintain all improvements on the subject

property in compl iance with the following: 10

Overall and Ground Level Landscape Plans, sheets "LP-1.0, 2.2 l i

and 3.0", dated 06/07/12, revised on 11/13/12, prepared by Genti le 12

Glas Hol loway O'Mahoney and Associates, Inc., received and 13

dated by the Department of Planning and Zoning on 11/13/12. 14

b. Overall and Ground level Site Plans, Overal l , sheets "SP-1.0 and 15

2.2", dated 06/07/12, revised on 12/14/12, prepared by Genti le Glas 16

Holloway O'Mahoney and Associates, Inc., received and dated by 17

the Department of Planning and Zoning on 12/14/12. 18

Stage/Amphitheater Site Plan and details, sheets "SP-4.5 Alt, 4.5.2, 19 c.

4.5.3", dated 11/13/12, prepared by Genti le Glas Holloway 20

O'Mahoney and Associates, Inc., received and dated by the 2I

Department of Planning and Zoning on 12/14/12. 22

Ord No. 1-13 Page D

d. Amphitheater Details, sheet "SP-4.5.1", dated 06/07/12, prepared 1

by Gentile Glas Holloway O'Mahoney and Associates, Inc., 2

received and dated by the Department of Planning and Zoning on 3

11/13/12. 4

Buildings 4 and 5 Floor Plans, sheet "A1.10 thru A1.80" dated 5

10/22/12, prepared by Leo A. Daly, received and dated by the 6


f. Cross Section of Garage, dated 11/13/12, prepared by Leo A. Daly, 8


11/13/12. 10

Harbourside Events Programming Schedule, dated 09/03/10, l i g.

revised on 01/29/13 12/2012, received and dated by the 12

Department of Planning and Zoning on 01/31/13 12/14/12. 13

Parking Geometr ic Standards Memorandum, dated 11/29/12, h. I 4

prepared by Parking Consultants Desman Associates, received and 15


Statement of use, dated 11/13/12, revised on 12/14/12, prepared 17

by Gentile Glas Holloway O'Mahoney and Associates, Inc., 1 8


12/14/12. 20

OrdNo. 1-13 Page E

Traffic statement, dated 11/29/12, prepared by Pinder Troutman J.

Consult ing, Inc., received and dated by the Department of Planning 2

and Zoning on 12/19/12. 3

The uses conducted on the subject property shall conform to the 4 2)

representations in the Statement of Use prepared by Genti le Glas 5

Holloway O'Mahoney and Associates, Inc., dated 12/14/12, received and 6


Any revisions to the site plan, landscape plan elevations, signs, 8 3)

Statement of Use or other details submitted as part of the Application, 9

including but not limited to the location of the proposed improvements or i o

additional, revised or deleted colors, materials, or structures, or changes 11

to how the business operates, shall be submitted to the Department of I2

Planning and Zoning (hereinafter the Department) and shall be subject to I3

it's review and approval. I4

Any condition associated with the submission of final plans shall be 15 4 )

subject to the Department's review and approval. 16

The condit ions of approval herein shall apply to the Owner, Applicant and 17 5)

their successors and assigns. 18

19 6) Prior to the issuance of a Certificate of Occupancy for Buildings 3A or 5,

the Owner shall construct the permanent covered stage and amphitheater. 20

2i 7) Amendment to Ordinance No. 44-10 (cond. 18): Noise. Upon submittal

issuance of any building permits for the 22

Ord No. 1-13 Page F

covered stage, the Owner shall hire an acoustical engineer to provide an l

engineered acoustical analysis feeef t to the Department f rom a sound 2

engineer which demonstrates, to the Department's satisfaction that the 3

4 noise ©ft

events deck on top of Building 3B can be mitigated so as to conform to the 5

Town's laws and regulations. The analysis shall include the location of the 6

stage and speakers, direction of sound from speakers, and shall measure 7

sound in db(A). The report shall be subject to the review and approval of 8

tho Department. Once approved, the analysis report shall be incorporated 9

into the final plans, and the Owner's continued compl iance with the same 10

shall be a condition of this Development Order. n

Amendment to Ordinance No. 14-08 (cond. 1): U.S. One/ Intracoastal 12 8)

Waterway Corridor Zoning district regulations -Bonus program. 13

The Applicant is awarded the following bonuses for the overall 14

PUD. 15

Lot coverage increase to 40.0 percent 5 credits 1) 16

Average Building height increase 2) 17

(a) Building 1from 35' to 49.91' §8r§§ : 7 4 4 credits 1 8

(b) Building 2 from 35' to 52.60' 12 48 credits

(c) Building 3A from 35' to 55.00' 60.00' 5 4 4 credits

19

20

(d) Building 3B from 35' to 35.67' 4&S&- 0 7 credits 2 1

Building 4 from 35' to 45.83' 48r50 : 7 credits (e) 22

OrdNo. 1-13 Page G

(f) Building 5 f rom 35' to 49.75' 54.33' 5 44 credits l

3) Reduction in landscape buffer requirements 5 credits 2

4) Reduction in setbacks 5 credits 3

Total 51 8© credits 4

b. The Applicant is awarded the following development credits: 5

1) Public plaza (10,000 square feet) 6 credits 6

2) Public restrooms (8 42 stalls) 8 42 credits 7

3) Interactive Fountain (1,300 square feet) 4 credits 8

4) Three additional vistas 12 credits 9

5) Public boat slips (9) 18 credits 10

6) Cultural Use (Amphitheater) 2 credits 11

23 credits 7) Public parking spaces 12

8) Cultural use (2.500 square feet) 3 credits 13

Total 76 80 credits 14

All other condit ions of approval within Ordinance No's. 14-08 and 44-10; 15 9)

Resolution No's 25-08 and 4-10, not amended herein, shall remain I6

applicable. 17

Section 3. The Town Council hereby approves a waiver of the Town's 18

19 parking requirements to authorize a reduction of the depth of parking spaces

from 19' to 17' 6" in the parking garage of Buildings 3A and 5. The waiver is 20

21 granted based on the Town Counci l 's finding that the provision of an

22 Amphitheater is a substantial public benefit to justify the waiver.

Ord No. 1-13 Page H

Section 4. All other condit ions of approval within Ordinance No. 14-08 l

2 and 44-10, not amended herein, shall remain applicable.

Section 5. Should any section or provision of this Ordinance, or any 3

4 portion thereof, and paragraph, sentence, or word, ever be declared by a court of

5 competent jurisdiction to be invalid, such decision shall not affect the validity of

6 the remaining portion of this Ordinance.

Section 6. All Ordinances or parts of Ordinances in conflict herewith are 7

8 hereby repealed to the extent of such conflict.

Section 7. This Ordinance shall take effect immediately upon its 9

io adoption.

11 Attachment:

Exhibit "A" - Legal Description 12

EXHIBIT "A"

PROPERTY

A PARCEL OF UNO LYING IN SECTION 6, TOWNSHIP 41 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCE AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE INTRACOASTAL WATERWAY, ACCORDING TO THE PLAT OF THE BULKHEAD LINE, AS RECORDED IN PUT BOOK 26, PAGE 102, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, WITH THE NORTH RIGHT-OF-WAY LINE OF STATE ROAO NO. 706 (1NDIANTQWN ROAO) AS SHOWN ON THE F.D.O.T. MAP SECTION 93190-2501; THENCE N17°34'45,W ALONG SAID EASTERLY RIGHT-OF-WAY LINE OF THE INTRA-COASTAL RIGHT-OF-WAY (BEARING BASIS), 210.36 FEET TO THE INTERSECTION WITH A LINE 200.00 FEET NORTH OF AND PARALLEL TO THE NORTH RIGHT-OF-WAY LINE OF SAID STATE ROAD NO. 706 (INDIANTOWN ROAD) AND BEING THE POINT OF BEGINNING; THENCE CONTINUE N17a34 ,45 ,W ALONG SAID.EASTERLY RIGHT-OF-WAY LINE, 664.64 FEET TO THE INTERSECTION WITH A BULKHEAD LINE ALONG THE SOUTH SHORE OF AN ESTUARY OF THE JUPITER RIVER, AS RECORDED IN SAID BULKHEAD LINE PUT; THENCE N44"27 ,40 ,E ALONG SAID BULKHEAD LINE, 415.B5 FEET TO THE INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO. 5 (U.S. HIGHWAY ONE) AS RECORDED IN ROAD PUT BOOK 2 , PAGES 105 TO 118, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S26<,00'23IIE ALONG SAID WESTERLY RIGHT-OF-WAY LINE, 1118.21 FEET; THENCE S24°34'28 ,E ALONG SAID WESTERLY RIGHT-OF-WAY LINE, B0.03 FEET; THENCE S14°42'49 ,W ALONG SAID WESTERLY RIGHT-OF-WAY LINE, 46.18 FEET TO THE INTERSECTION WITH THE NORTH RIGHT-OF-WAY LINE OF SAID STATE ROAD NO. 7D6; THENCE S87e41"55"W ALONG SAID NORTH RIGHT-OF-WAY LINE, 206.24 FEET; THENCE S84°57't9 ,W ALONG SAID NORTH RIGHT-OF-WAY LINE, 31.17 FEET; THENCE NB9931'20'W ALONG SAID NORTH RIGHT-OF-WAY LINE, 32.63 FEET; THENCE N22'41'50'W, 217.56 FEET; THENCE N89S31'20"W, 248.70 FEET TO THE POINT OF BEGINNING.

CONTAINING 434,452 SQUARE FEET, OR 9.974 ACRES, MORE OH LESS.

NOV 1 3 2012

PLANNING & ZONNING

3

Upon First Reading this 15tn day of January, 2013, the foregoing Ordinance was offered by Councilor Wendy Harrison, who moved its adoption. The motion was seconded by Vice-Mayor Todd R. Wodraska, and upon being put to a roll call vote, the vote was as follows:

AYE NAY

MAYOR KAREN J. GOLONKA

VICE-MAYOR TODD R. WODRASKA

COUNCILOR W E N D Y HARRISON

COUNCILOR JIM KURETSKI

COUNCILOR THOMAS J. MCCARTHY

X

X

X

X

Upon Second Reading this 5th day of February, 2013, the foregoing Ordinance was offered by Councilor Wendy Harrison, who moved its adoption. The motion was seconded by Vice-Mayor Todd R. Wodraska, and upon being put to a roll call vote, the vote was as follows:

AYE NAY

MAYOR KAREN J. GOLONKA

VICE-MAYOR TODD R. WODRASKA

COUNCILOR W E N D Y HARRISON

X

X

X

COUNCILOR JIM KURETSKI X

COUNCILOR THOMAS J. MCCARTHY X

The Mayor thereupon declared Ordinance 1-13 duly passed and adopted this

5 lh day of February, 2013.

T O W N OF JURITER, FLORIDA

h"K ATTEST: BY: OLONKA KAR

<o\ MAYOR & rt> y o

SALLY k 6 o YLA'N^MMJ o T O W N CLERK " ^ w-

0 \

^ t h ^ m a ' s ^ b t f l f f d Approved as to fr legal sufficiency

' q . 91 (TOWN SEAL) nd

1

2

3 4

5 6 7

8

9

1 0

1 1

12

13

RESOLUTION NO. 2-13 I4

15

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF JUPITER, FLORIDA, APPROVING RESOLUTION NO'S. 25-08 AND 4-10 AND A SITE PLAN FOR A PROJECT KNOWN AS HARBOURSIDE TO MODIFY THE SQUARE FOOTAGES OF THE PREVIOUSLY APPROED USES, ADDING A COVERED STAGE STRUCTURE, AND APPROVING THE SITE AS AN OUTDOOR VENUE; AND PROVIDING FOR AN EFFECTIVE DATE.

16

17

1 8

19

20 21

22 23

24

25

WHEREAS, Harbourside Place, LLC., (the Owner) is the owner of 26

27 approximately 9.0 acres of property, the legal description of which is contained

28 in Exhibit "A" which is attached hereto and incorporated herein (the subject

property); and 29

WHEREAS, pursuant to Resolution No. 25-08 and 4-10, the Town Council 30

3i approved a site plan, and an amendment thereto for the subject property

authorizing the development of a project known as Harbourside; and 32

WHEREAS, the subject property is located on the northwest corner of the 33

intersection of Indiantown Road and US Highway One; and 34

WHEREAS, Gentile Glas Holloway O'Mahoney and Associates as the 35

authorized agent (the Applicant) for the Owners has submitted an application 36

Res No.2-13 Page B

proposing to modify the previously approved uses to reduce restaurant square l

2 footage from 34,855 to 31,368, reduce retail square footage from 55,256 to

3 53,073, increase office square footage from 58,791 to 60,202, and increase the

4 number of keys (rooms) from 178 to 179; adding a permanent covered stage to

5 the amphitheater; and an outdoor venue (the Application); and

W H E R E A S , the Town of Jupiter Planning and Zoning Commission has 6

7 considered the Application and has made its recommendations to the Town

Council; and 8

W H E R E A S , the Town Council has conducted a public hearing wherein it 9

10 considered the evidence and testimony presented by the Town staff, the

l i Applicant, the Owner, and other interested parties and members of the public,

12 regarding whether the Application is consistent with the Town's Comprehensive

13 Plan and meets the Town's Land Development Regulations; and

WHEREAS, at its hearing, the Town Council determined that certain 14

is conditions, as set forth herein, are necessary for the Application to be consistent

16 with the Town's Comprehensive Plan and to meet the Town's Land Development

Regulations, including those regulations specifically contained in Section 27-96 17

18 of the Town Code; and

WHEREAS, the Applicant, the Owner and their successors and assigns 19

20 shall be subject to the conditions contained in Section 2; and

NOW, THEREFORE, BE IT RESOLVED BY THE T O W N COUNCIL OF 2 1

THE T O W N OF JUPITER, FLORIDA, THAT: 22

Res No. 2-13 Page C

Section 1. The whereas clauses are incorporated herein as the findings l

2 of fact and conclusions of law of the Town Council.

Section 2. The Town Council hereby approves an amendment to the site

4 plan for the subject property, and subject to the Owner meeting the following

3

5 conditions:

The Owner shall install and maintain all improvements on the subject 6 1)

property in compliance with the following:

Overall and Ground Level Landscape Plans, sheets "LP-1.0, 2.2,

7

8

and 3.0", dated 06/07/12, revised on 11/13/12, prepared by Gentile 9

Glas Holloway O'Mahoney and Associates, Inc., received and 10

dated by the Department of Planning and Zoning on 11/13/12. l i

b. Overall and Ground level Site Plans, Overall, sheets "SP-1.0 and 12

2.2", dated 06/07/12, revised on 12/14/12, prepared by Gentile Glas 13

Holloway O'Mahoney and Associates, Inc., received and dated by 14

the Department of Planning and Zoning on 12/14/12. 15

Stage/Amphitheater Site Plan and details, sheets "SP-4.5 Alt, 4.5.2, 16 c.

4.5.3", dated 11/13/12, prepared by Gentile Glas Holloway 17

O'Mahoney and Associates, Inc., received and dated by the 1 8


Amphitheater Details, sheet "SP-4.5.1", dated 06/07/12, prepared d. 20

by Gentile Glas Holloway O'Mahoney and Associates, Inc., 21

Res No.2-13 Page D

received and dated by the Department of Planning and Zoning on i

11/13/12. 2

Buildings 4 and 5 Floor Plans, sheet "A1.10 thru A1.80" dated

10/22/12, prepared by Leo A. Daly, received and dated by the

Department of Planning and Zoning on 11/13/12.

Cross Section of Garage, dated 11/13/12, prepared by Leo A. Daly,

received and dated by the Department of Planning and Zoning on

3

4

5

6

7

11/13/12. 8

Harbourside Events Programming Schedule, dated 09/03/10, 9 g.

revised on 01/29/13, received and dated by the Department of 10

Planning and Zoning on 01/31/13. 11

Parking Geometric Standards Memorandum, dated 11/29/12 h. 12

prepared by Parking Consultants Desman Associates, received and 13


Statement of use, dated 11/13/12, revised on 12/14/12, prepared 15

by Gentile Glas Holloway O'Mahoney and Associates, Inc.. 16


12/14/12. 18

Traffic statement, dated 11/29/12, prepared by Pinder Troutman 19

Consulting, Inc., received and dated by the Department of Planning 20

and Zoning on 12/19/12. 2i

Res No. 2-13 Page E

The uses conducted on the subject property shall conform to the 2) l

representations in the Statement of Use prepared by Gentile Glas 2

Holloway O'Mahoney and Associates, Inc., dated 12/14/12, received and 3


Any revisions to the site plan landscape plan, elevations, signs 3) 5

Statement of Use or other details submitted as part of the Application, 6

including but not limited to the location of the proposed improvements or 7

additional, revised or deleted colors, materials, or structures, or changes 8

to how the business operates, shall be submitted to the Department of 9

Planning and Zoning (hereinafter the Department) and shall be subject to 10

it's review and approval. l i

Any condition associated with the submission of final plans shall be 12 4 )

subject to the Department's review and approval. 13

The conditions of approval herein shall apply to the Owner, Applicant and 14 5 )

their successors and assigns. 15

Prior to the issuance of a Certificate of Occupancy for Buildings 3A or 5, 6) 16

the Owner shall construct the permanent covered stage and amphitheater. 17

Amendment to Resolution No. 4-10 (cond. 16): Noise. Upon submittal 7) 1 8

the issuance of any building permits for the 19

covered stage. 20

engineered acoustical analysis fesoft to the Department from a sound 21

engineer which demonstrates, to the Department's satisfaction that the 22

Res No.2-13 Page F

noise eft-i

events deck on top of Building 3B can be mitigated so as to conform to the

Town's laws and regulations. The analysis shall include the location of the

2

3

stage and speakers, direction of sound from speakers, and shall measure 4

sound in db(A). 5

the Department. Once approved, the analysis report shall be incorporated 6

into the final plans, and the Owner's continued compliance with the same 7

shall be a condition of this Development Order. 8

Site Plan. Upon submittal of final plans and prior to the issuance of any 9 8 )

building permits, the Owner shall revise the site plan to: 10

Update Sheet SP-1.0 Alt. to indicate the correct required parking n

with shared parking (804). 12

Indicate the location of artificial turf, if used, on sheet SP-4.5 Alt b. 13

and LP-2.2. 14

Update Sheet SP-4.5 Alt. to indicate the planters north of the 15 C.

amphitheater stage and at the top of the amphitheater. 16

Upon submittal of final plans and prior to the issuance of any permits for 17 9)

the amphitheater or Building 3B, the owner shall provide 4 men's and 7 18

women's stalls in Building 3B to accommodate up to 560 attendees. 19

20 10) Special Events. The Owner shall adhere to the following and revise the

special events programming schedule prior to issuance of any building 21

permit: 22

Res No.2-13 Page G

Update the table to remove the hotel decks as an outdoor venue. l

b. All new events must be submitted for review and approval 60 days 2

prior to the scheduled event. 3

A maximum of 24 special events shall be permitted within the first 4 C.

year of operation of events programming. 5

d. Events that propose amplified sound and/or music outside the 6

amphitheater, hotel decks on Buildings 1 and 2, and event deck on 7

Building 3B shall require the submittal of a special event permit. 8

Coordinate with the CRA and the Police Department to schedule 9

events for the following calendar year 60 days prior to the 10

beginning of each calendar year and review prior events to address i i

any revisions needed for similar future events and/or the events 12

programming schedule. 13

Outside alcohol sales by approved vendors and licensed tenants 14

shall be permitted from 8 a.m. to 10 p.m. Outside consumption of 15

alcohol during approved events shall be permitted from 8 a.m. to 11 1 6

p.m. and only within designated event scenario locations as noted 17

in the Harbourside events programming schedule. 1 8

During an event, any alcohol served at a restaurant or by 19 9-

licensed/approved vendors, for consumption off-premise in open 20

containers, shall only be served in paper or plastic containers. 21

Glass containers are prohibited in the event scenario locations. 22

Res No. 2-13 Page H

h. New Year's Eve event hours can be extended until 12:30 a.m.

through the special event permit process. Outside alcohol sales by 2

approved vendors and licensed tenants shall be permitted until 12 3

a.m. Outside consumption of alcohol during approved events shall 4

be permitted until 12:30 a.m. within designated event scenario 5

locations only, as noted in the Harbourside events programming 6

schedule. 7

All events that proposed amplified sound and/or music outside the 8

amphitheater and event deck on Building 3B shall submit a special 9

event permit. io

Any events with over 560 attendees will require port-a-lets to be n

provided. 12

13 11) Sound requirements for Outdoor Venues. Upon the submission of the

final plans and prior to the issuance of any building permits, the Owner 14

shall revise the Statement of Use to note: 15

That the sound limiter shall be set up to limit the overall sound 16

output from the sound system such that it meets the Town's sound 17

level regulations at the subject property's property lines. 1 8

b. That the sound limiter shall turn off or automatically reduce the

sound/music which is being produced to a level which is within the

19

20

Town's permitted noise regulations. 21

Res No. 2-13 Page I

Upon the installation of a professional sound system and the sound limiter l 12)

which is required as a condition herein, the Owner shall: 2

Contact the Department to schedule an inspection of all the 3

installed equipment, including the speakers (location and direction), 4

and limiters as shown on the sound plan layout, prior to operating 5

the equipment. 6

b. Provide written documentation and verification as part of the 7

Department's inspection, that the equipment's performance is set to 8

meet the three different sound levels and time standards for 9

outdoor music/sound amplification for an outdoor venue. 10

Provide written documentation and verification as part of the

Department's inspection, that the installed equipment is tamper

i i c.

12

resistant. 13

d. Pay a fee in the amount of $225.00 to cover administrative costs for 14

inspection of the equipment, prior to the inspection date and any re-15

inspection if required. The Department will record the sound levels 16

[Leq dB(A)] measured on official form and provide a copy to the

Owner.

17

1 8

Prior to any amplified sound and music (including but not limited to 19 13)

instruments and singing) being transmitted outdoors, the Owner shall 20

provide a sound report to ensure compliance with the Town Code and 21

include the location of the permanent speakers. 22

Res No.2-13 Page J

The Owner shall keep the volume control limiter set and locked to meet 14) 1

the approved settings. 2

The Owner shall maintain, on the subject property, an approved sound 15) 3

level meter, properly calibrated such that it meets class II ANSI and/or IEC 4

651/804 or equivalent standards, which demonstrate A weighted Leq 5

sound levels. The sound level meter is required as a condition herein to 6

assist the business in self-monitoring sound levels on the subject property. 7

Within two days of a written notice from the Town the Owner shall 16) 8

calibrate the sound meter of the outdoor venue and compare the sound 9

level meter readings with the Town's sound meter to ensure that the 1 0

equipment readings of the sound levels are being measured accurately l i

[+/- Leq 3dB(A)]. 12

The Owner shall annually obtain a Certificate of Accuracy from the 17) 13

manufacturer of the outdoor venue sound level meter and calibrator. A 14

copy of the certificate shall be maintained on the premises of the outdoor 15

venue for inspection 16

Upon any sound complaint call received by the Town, the sound level 18) 17

meter shall be subject to inspection by a Police or Code Compliance 1 8

Officer to ensure the meter functions properly. The refusal by the Owner 1 9

or his agent to allow a Town Police or Compliance Officer reasonable 20

access to inspect the volume control limiter on the sound system shall be 21

Res No. 2-13 Page K

an irreparable violation (as defined in Chapter 162, Fla. Stat.) of this

Development Order and of the Town Code.

Architecture. Upon submittal of final plans and prior to the issuance of

2

19) 3

any building permits, the Owner shall revise the elevations as follows: 4

Provide diversity in details including but not limited to columns, 5

posts, piers, railings, cornice, banding, windows, brackets, caps, 6

casings, etc. 7

b. Provide exterior wall openings or windows for visibility into and out 8

of the Stairwells #1 and 2 located on the southwest corner and 9

north side of Building 5 and Stairwell #2 in Building 3A facing 10

Coastal Way.

Add an architectural element identifying the pedestrian entries to

l i

1 2 c.

stairwells located on the southwest side of Building 5 and the south 13

side of Building 3A. 14

The Owner shall encourage individual tenants to customize their exterior 20) 15

tenant space to provide additional architectural details and diversity. 1 6

All other conditions of approval within Resolution No's 25-08 and 4-10, not 21) 17

amended herein, shall remain applicable. 1 8

All events and music on the hotel decks must end at 11 p.m. 19 22)

All events with amplified sound and music between 10 p.m. and 12 a.m. 23) 20

shall submit a special event permit. 21

Res No. 2-13 Page L

The Owner shall provide ingress and egress stairwell access that is 24) l

accessible during business and event hours to the garage levels in 2

Buildings 3A and 5. 3

The terms and conditions of Resolution No's. 25-08 and Section 3. 4

4-10 which have not been modified herein shall remain in effect. 5

Section 4. Should any section or provision of this Resolution, or any 6

7 portion thereof, and paragraph, sentence, or word, ever be declared by a court of

competent jurisdiction to be invalid, such decision shall not affect the validity of 8

9 the remaining portion of this Resolution.

Section 5. This Resolution shall take effect immediately upon its 10

l i adoption.

12

Attachment: 13

Exhibit "A" - Legal Description 14

EXHIBIT "A"

PROPERTY

a parce l of land l y i n g i n sect ion 6, township 41 south, range 43 eas t , palm beach county, f l o r i d a , being more p a r t i c u l a r l y descr ibed as FOLLOWS:

commence a t the i n t e r s e c t i o n of the eas te r l y r i gh t -o f -way l i n e of the i n t r a c o a s t a l waterway, according t o the p u t o f the bulkhead l i n e , as recorded i n p l a t book 26, page 102, pub l i c records of palm beach county, f l o r i d a , w i t h the north r i g h t - o f - w a y l i n e o f s t a t e road no. 706 ( indiantown roao) as shown on the f . d . o . t . map sect ion 93190-2501; thence n(7°34'45 ,w along sa id eas te r l y r i g h t - o f - w a y l i n e o f the i n t r a -coasta l r i g h t - o f - w a y (bearing bas is ) , 210.36 f e e t t o the i n t e r s e c t i o n w i t h a l i n e 200.00 fee t north of and p a r a l l e l t o the no r th r i gh t -o f -way l i n e o f sa id s ta te road no. 706 ( indiantown road) ano being the p o i n t o f beginning; thence continue n17#34'45'w a long sa id .eas te r l y r i gh t -o f -way l i n e , 664.64 f e e t t o the i n te r sec t i on w i t h a bulkhead l i n e along the south shore of an estuary of the j u p i t e r r i v e r , as recorded i n sa id bulkheao l i n e p l a t ; thence n44827'40'e a long sa id bulkhead l i n e , 415.85 feet t o the i n t e r s e c t i o n w i t h the wes te r l y r i gh t -o f -way l i n e of s t a t e road no. 5 (u . s . highway one) as recorded i n road p l a t book 2 , pages 105 t o 118, pub l i c records of palm beach county, f l o r i d a ; thence s26°00'23"e along sa id wester ly r i gh t -o f -way l i n e , 1118.21 f e e t ; thence s24°34'28*e along sa id wester ly r i gh t -o f -way l i n e , 80.03 f e e t ; thence s14°42'49 ,w along sa id wester ly r i gh t -o f -way l i n e , 46.18 f e e t to the i n t e r s e c t i o n w i t h the nor th r i gh t -o f -way l i n e o f sa id s t a t e road no. 7d6; thence s87°41'55"w along sa id nor th r i gh t -o f -way l i n e , 206.24 f e e t ; thence s84°57'19 ,w along said no r th r i gh t -o f -way l i n e , 31.17 f e e t ; thence n89'31'20"w along sa id north" r i gh t -o f -way l i n e , 32.63 f e e t ; thence n22°41'50'w, 217.56 f e e t ; thence n89331'20'w, 248.70 fee t to the p o i n t o f beginning.

con ta in ing 434,452 square f e e t , or 9.974 acres, more or l e s s .

RECEIVED NOV 1 3 2012

PLANNING & ZONNING

3

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Harbourside Events Programming Schedule

OUTDOOR VENUE STANDARD** Event Locations Hotel

A B C D H-1 H-2 Criteria OutdoorVenue occuring within the hours of 8am to 12am Midnight

PERMIT REQUIRED

X x x X x

Location (see attachment) A B C D H-1 H-2 <200 but not >

fire code PER

<800* Fire Code <1000 Attendee size on weekends PERMIT

<200 but not > fire code

PER Fire Code <600* <600 Attendee size on weekdays PERMIT One Day event x x X

All vendors must remain within the confines of the special event, as specified on Sheets S-Athrough S-D

x x x x x

OutdoorVenue with permitted amplification in Amphitheater & Building x x X x x 1, 2 and 3A Decks Advertising signage or banners within the Harbourside project and along the ROW for Coastal Way. (Refer to SP-1.7 signage plan for locations)

N/A N/A x X X

Road Closures (per location) only on public access easements. Garages must remain accessible.

N/A N/A x X X

Sale of alcohol shall only be permittable within the 8am to 12am Midnight framework of OutdoorVenue.

x x X x x

Notify the Town P&Z staff and Police 7-60 days in advance based upon equivalent special event A orBas found in Section 27-271 pereach event held.

N/A N/A x X X

Type of events

Chamber Events x Closed parties x Receptions x Music Concert x Theater x Talent Showcase x Boat Parade x x Halloween x x X

Flower Show x x Street Performers x x Street Artists x x Dog Nights x x Art Show x X

Green Market x x One Man Band with Amplification x x X X x

Accousitical Music x X X X x Piped Music x x x D.J. Music x X X X x

* Attendees over 480 (maximum code for restroom capacity), will require portable toilet facilities be provided. **Hotel space not included in Outdoor Venue criteria.

September 3, 2010 Revised January 29, 2013

Page l o f 5

Note: St. Patrick•s Day New Year•s Eve and 4

New Year•s Eve


Table2 Events Ideas Per Sequence

1 event 20x - 20 even t s 1 even t 6 x=6 e v e n t s 4 e v e n t s

REPEAT WEEKLY 1 REPEAT WEEKLY 2 REPEAT MONTHLY 1 REPEAT MONTHLY 2 REPEAT NONE REPEAT ANNUALLY WEEKLY YEAR ROUND WEEKLY SEASONAL MONTHLY YEAR ROUND MONTHLY SEASONAL ANNUAL ONETIME

Celebrity Themed Concerts Flower Market (am) Flower Market (am) Dog Night Dessert Night Halloween

Green Market (am) Green Market (am) Christmas Boat Parade Wedding Receptions Party Night Dog Night

Kids Night Street Performers Arts & Crafts Shows Fourth of July Party Night Private Parties

Cycle Night Kids Night Street Performers Chamber Event Art Festivals

Street Performers Cycle Night Street Artists Small Receptions Music Festivals

Tastings (Food & Wine) Music Concert Series New Year's Eve

School Band/Chorus Shows Street Performers

Music Concert Series School Theater

Dance School Presentations Chamber Event

Box Lunch at the Amphitheater

Talent Showcase

Food Festivals

Parades

Note: St. Patrick's Day, Boat Parade, New Year's Eve and 4th of July events require a Special Events Permit to be submitted to Planning and Zoning for review and approval. New Year's Eve shall be permitted an extended permit time until 12:30 a.m.

HARBOURSIDE COMMITMENT: Harbourside will make a commitment to organize the following events over the first year from final CO on the project. This may be in conjunction with the Town:

One Seasonal Weekly event = 20 events One Seasonal Monthly event = 6 events Four annual events = 4

TOTAL = 30 events

PHYSICAL LAYOUT See the attached documents for physical layout of the four different Locations.

APPROVAL The Outdoor Venue Events and Standard (Hotel) listed on Table #1 excluding Location D are exempt from Special Events Permit if they meet the requirements of the Table #1 criteria and the following items:

1. Occurring within the hours of 8 a.m. to 1210 a.m. midnight.


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2. All vendors must remain within the confines of the special event, as specified on Sheets S-A through S-D and H-l and H-2.

3. Electronically amplified sound shall be in the Amphitheater and on the Event Decks on Buildings 1, 2 and 3B per the Final Audio Propagation Report and Amendments by Commercial Sound and Design Group Inc. and approved bv Town Staff. Naturally amplified sound (instruments) shall be allowed within the entertainment district until 4410 p.m.

4. Advertising signage or banners within the Harbourside Property and along the ROW for Coastal Way only. (Refer to SP-1.7 Signage plan for locations)

5. Road closures (per Location) only on public accessed easements. Garages must remain accessible.

6. Sale of alcohol shall only be permittable within the 8 a.m. to 4-210 a.m. midnight framework.

7. Notify the Town P&Z staff and Police 7-60 days in advanced based upon the equivalent Special Permit A o r B as found in Sect. 27-271 per each event held.

If an Outdoor Venue program or Standard Venue does not meet all criteria, a Special Event Permit must be applied for with the Town of Jupiter. Notification to the Police Department is required for most events - see below.

TOWN OF JUPITER The Town of Jupiter, per Site Plan Conditions of Approval, will be able to close the waterfront street called Dockside Circle a total of up to 2 days per month (Condition of Approval 22).

SPECIAL EVENTS SCHEDULE Please see the attached Statement of Use, schedule and permit exemption for the programming obligation by the Harbourside project.

Events executed under the Outdoor Venue permit exemption shall not be subject to compliance with or count towards the maximum number of events per calendar year and number of days per event in Table 1, Section 27-271 for a Permit A or B, except as providedherein. Condition 18in Resolution 04-10.

SALE OF ALCOHOL The only permit exempt event sale of alcohol will be by a Harbourside merchant already permitted through their primary business to sell alcohol.

Any vendors/merchants desiring to sell alcohol inside an establishment or outside must obtain their own beverage permit issued by the Bureau of Alcohol and Tobacco. If alcohol is proposed to be sold as part of a permitted event then the vendor/merchant must be included in the special event permit.

TRAFFIC FLOW


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Barricades and bollards will assist in road closures. All other roads will remain open allowing traffic to flow smoothly throughout the Harbourside project on Coastal Way with full access to the two parking garages.

POLICE AND FIRE The Town of Jupiter Police and the Palm Beach County Fire Department will be contacted at the same time as Town Planning Staff for any permit exempt Outdoor Venue event where expectations are over 300 participants (see APPROVAL above). The police are contacted about every special event requiring a Town Special Event Permit as part of the process.

MERCHANTS AND HOTEL GUESTS The merchants and hotel guests are notified of any road closures and/or special events. For larger events, parking arrangements may be made for off-site parking of employees with shuttle bus service.

VENDOR AND EMPLOYEE PARKING Under a Special Events Permit, the permittee shall provide and control all vendor parking as may be required for each event and be addressed specifically in the Special Permit. For permit exempt events, all off-site arrangements for parking must be formalized with written agreements and notification provided to the Town Police and to the Planning and Zoning Department. Vendor and employee parking plans are subject to review by emergency services via submission to Town Police. Please see the Parking & Valet Plan for further detail.

JUSTIFICATION OF ATTENDANCE ALLOWANCES Special Events will bring in additional visitors to the project above and beyond the approved site plan uses. Parking for the site plan is based upon the various uses being provided and has provided for the highest demand time period (Weekday Evening). Much of the time the project will be under parked. The following indicates the amount of parking spaces available at the different time periods and allows for 2.5 people per car (this is for people attending the event, not employees of the different businesses).

Parking Available Required (876)

Additional People

97 x 2.5 =242 people 43 x 2.5 =108 people 520 x 2.5 =1,300 people 321 x2.5 =802 people 145 x 2.5 =362 people

Time Weekday Evening 5-7pm 726-779 Weekday Evening 7-9pm Weekend Morning 8-12 Weekend Afternoon 12-5 Weekend Evening 5-10

807-833 199-356 459-555 592-731

SEASONAL /EVENT BANNERS Seasonal/Event Banners are allowed to be up for 3 months.

REVIEW OF THIS DOCUMENT September 3, 2010

Revised January 29, 2013 Page 4of 5

…


Per Condition of Approval 22 (with suggested modification - see Architectural Statement of Use), this document will be updated periodically through an administrative process involving the Town Manager.


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Documents

JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, … · 350 east las olas blvd. | suite 1000 | fort lauderd ale, florida 33301 t: 954-525-9900 | f: 954-523-2872 | in the circuit court