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HomeMy WebLinkAbout04-18-2017 Minutes 1 SEBASTIAN POLICE DEPARTMENT 1201 Main Street, Sebastian, Florida 32958 Code Enforcement Division CITY OF SEBASTIAN, FLORIDA MINUTES SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING April 18, 2017 1. The hearing was called to order at 2:00 p.m. by Special Magistrate Kelley H. Armitage. 2. Present: Special Magistrate Kelley H. Armitage, Acting City Attorney Joseph F. Griffin, Code Enforcement Officer Richard Iachini, Deputy Chief Greg Witt, Administrative Assistant Janickie Smith. 3. Mr. Griffin swore in all persons that would be speaking. 4. Accessory Structures (Sec. 54-2-7.5) Case No.: 17-04663 MICHAEL J. DUNWAY & ANDREA M. FECTEAU 1 CALAMONDIN STREET Acting City Attorney Joseph F. Griffin identified himself as representing the City of Sebastian and called Code Officer Iachini to present the code enforcement case. Code Officer Iachini testified that there has been an ongoing problem at the address of 1 Calamondin Street, the resident was found in violation for living on the property without a primary residence. The case was brought before the Magistrate in 2007, The Findings of Facts from that past case ordered the resident to disable the pool by draining it and locking up the shed and move off the property. Since then the resident has moved back onto the property and has been living there without a principle structure. Code Officer Iachini stated he again posted the property and gave the resident fifteen days to comply with the original order and started the process all over again. At this time Mr. Dunway has complied with the violation. Officer Iachini presents photos as evidence the property was brought into compliance. Also stating Mr. Dunway added two additional sheds to the property without the proper permitting, but have removed those sheds as well, moved from the property and locked the shed he was residing from. The pool has been drained as requested and the gates have been locked. Magistrate Armitage asked if the lot was fenced and Code Officer Iachini answered it is completely fenced in with a double wall fence around the lot. Magistrate Armitage stated draining the pool would be an attracted nuisance. Code Officer Iachini agreed stating this is true and was the findings of the first Magistrate which Mr. Dunway intended to put a mobile home or primary structure on the property. A primary residence was never put on the property. Officer Iachini is requesting a Findings of Fact that states 2 this will not happen again. Mr. Dunway is not to move back onto the property without a primary residence, and if he is to move back onto the property without a primary residence he will be fined. Magistrate Armitage asked if the pool was up to code. Officer Iachini answered yes because there is a fence around the property, that is all that is required by code. The pool has a six foot privacy fence that covers all four sides. Magistrate Armitage states there is no problem with the pool’s structure and is up to code, and the only problem is that there is no primary residence. Officer Iachini answered yes this is the only issue, Mr. Dunway was living on the property without a primary residence. Magistrate Armitage asked if the two storage sheds were gone. Code Officer Iachini answered yes he has removed those. Magistrate Armitage stated the big shed is still there but is locked. Code Officer Iachini agreed stating I assume it’s locked, the door is shut and there has been no indication of anybody being there. Mr. Dunway has followed with what we have asked him to do. I want to make sure it does not happen again. Magistrate Armitage asked if the pool has been drained. Code Officer Iachini testified yes with proof of photos, stating what you see is rain water. Magistrate Armitage asked Officer Iachini if there was anything further he needed him to hear. Officer Iachini answered no. Magistrate Armitage called Mr. Michael Dunway to the stand. Magistrate asked if there was anything you wish for me to hear or present any documents or pictures for review or make a statement, or have any questions for the Officer. Mr. Dunway stated he does not. Mr. Dunway stated he has complied. Mr. Dunway stated he received a second notice mentioning the buildings but was not stated in the first notice of which was complied within a timely manner. Mr. Dunway checks on the property once or twice a week to make sure everything is okay. The buildings (sheds) were dismantled in a timely manner to comply with the code violation. Magistrate Armitage asked if Mr. Dunway has plans for the property. Mr. Dunway stated he purchased a home to put on the property in 2010 but ran into issues getting the property permitted and had to put the project on hold with hopes of completing in the near future. Mr. Dunway stated he has a mortgage on the property of which is on the downside, when the property was purchased there would be options. In 2007 he had intentions of placing a home on the property, but with lack of due diligence on his part a single-wide mobile home was purchased and placed on the property with setbacks. Mr. Douglas (hired by Mr. Dunway) could not get the mobile home correctly placed on the property within code compliance Mr. Dunway stated he understands what is required to bring the property into code compliance. In April of 2010 again stated he purchased the mobile home and hired a professional to take care of the survey and permitting and within a six month time frame of trying to get the mobile home in code compliance. When this did not work out I have not been in a position to complete the project. Magistrate Armitage stated it has been at least seven years. Mr. Dunway stated that is correct. Magistrate Armitage asked it the problems were financial. Mr. Dunway answered yes and some other things, but generally financial. Magistrate Armitage asked if the plans for this property to be a primary residence or a rental unit. Mr. Dunway stated no rental unit but his intention when he purchased the property was to wait on the development of the land around the property and possible sale it, or place a home on the property and live there. He has lived in this area for a long time and intended to make this his primary residence. Magistrate Armitage asked if he still planned on doing that. Mr. Dunway answered it is hard to say at this point as he still has options, of which become greater once the property has been paid for. He will be able to sell the lot or purchase a home once the mortgage has been paid for, but there has not been a decision made. Magistrate Armitage asked the City of Sebastian for any suggestions. 3 Mr. Griffin stated the City of Sebastian is sympathetic to the defendant’s position. The issue has been the fact that Mr. Dunway returns to live in this shed numerous times. Florida rules of evidence provide that where there is a pattern of practice of a certain action that this is admissible for consideration by the trier of fact. The City’s position would be that the trier would consider posting and imposing a fine of $100 or $50 per day, whichever is considered if the defendant were to come back onto the property and reside in the shed. Magistrate Armitage asked for the beginning and ending dates of the fine. Officer Iachini stated if there is any evidence that Mr. Dunway has moved back onto the property and resides without a primary structure then a fine be imposed. Magistrate Armitage addressed his concerns reference the pool and asked if there were any no trespassing signs at the residence. Mr. Dunway confirmed yes. Mr. Dunway stated there has not been a repeating pattern of him coming on going from the property, in 2007 when he vacated from the property I took a nearby rental for several years, in 2010 I remained in the rental with anticipation of the home being placed on the property. When everything fell through with the property I kept the rental unit and continued to pay rent, my resources become depleted and I was unable to afford the mortgage and choose to move back onto the property. Mr. Dunway testified there is about 30 months left to pay on a 15 year mortgage. Magistrate Armitage stated you don’t plan to live on the property for two and a half years. Mr. Dunway stated he would sign a statement that he would not move back onto the property without a primary residence. Mr. Dunway stated when he purchased the property his intention was to make the property nice. Magistrate Armitage asked Mr. Dunway if he understood what the City of Sebastian was asking him to consider enter an order stating that should Mr. Dunway return to live on the property without a primary residence that you would be fined up to $100 each day that you are there. Magistrate Armitage confirmed there are no issues with the large shed located on the property as well. Officer Iachini stated the shed has been permitted and is allowed on the property, but only as an accessory shed and requires a principle structure. Code Officer Iachini testified he has documentation from the Building department there was an electrical permit obtained by the defendant. Mr. Dunway stated this was not true and he has never applied for any electrical permit. Officer Iachini provided the document to the Magistrate as evidence. Magistrate Armitage stated the permit was over four years old and if the permit would be closed. Officer Iachini stated a building inspector would have to do an inspection and close the permit. Mr. Dunway again denied applying for an electrical permit. Magistrate Armitage asked if the contractor hired by Mr. Dunway applied for the permit. Office Iachini stated the building department would be able to provide complete information reference to the permit. Mr. Dunway stated the contractor would not have applied for the permit as he was not involved with the project at the time of the permit. Magistrate Armitage asked what to do about the permit. Officer Iachini stated a building inspection go out and complete an inspection and close the permit if there were no issues. Magistrate Armitage asked what would be done if there were issues found with closing the permit. Mr. Dunway stated there were no electrical issues with the building and is safe. Mr. Dunway stated the property was previously owned by a contracted and was sure the property is safe and permitted properly. Mr. Dunway testified back in 2007 before he purchased the property he did research on the property and contacted City Hall and requested information on the property and was told there were no records that existed on the property. A subpoena was obtained to get proof that this was a permitted structure. There are no permitting or electrical issues with the property. Mr. Dunway again stated he will sign a document that he will not live on the property. Magistrate Armitage confirmed that Mr. Dunway understood that a fine of $100 per day will be imposed if Mr. Dunway moves back onto the property. Mr. Dunway agreed. 4 Magistrate Armitage asked if there is a problem with the electricity would the City of Sebastian be amendable to give Mr. Dunway to correct the issue. Mr. Griffin agreed. Magistrate Armitage stated the City of Sebastian will send an inspector to the property to confirm there are no issues with the electricity. Mr. Dunway stated he does not understand due to the fact that he has never applied for an electrical permit and there has never been any issues with the electricity. Mr. Dunway believes the City of Sebastian is causing further issues and not allowing him to have power on the property. Magistrate Armitage stated he does not believe that the City of Sebastian pulled a permit on the property. Mr. Dunway stated he has not pulled a permit for the property and no electric work has been done on the property. Magistrate Armitage explained he is trying to prevent any future problems if the power has to be shut down and Mr. Dunway becomes frustrated with the City of Sebastian, you will now have a chance to fix and address any problems. Mr. Dunway is requesting to know who pulled the electrical permit. Magistrate Armitage requested a copy of the permit. Officer Iachini stated a copy of the permit can be obtained from the building department. Magistrate Armitage called for a recess to obtain a copy of the permit. Code Officer Iachini testified the building department did not have any open electrical permits for 1 Calamondin Street. I asked how it could be put on this particular record and was told the permit was done in error at 1 Calamondin Street by possibly 2 addresses being open on the computer at the same time. Officer Iachini apologized to Mr. Dunway and stated he was correct that no electrical permits were filed. Magistrate Armitage stated we don’t have to worry about that. Mr. Dunway testified the building department stated the permit belong to another property in the City of Sebastian. Magistrate Armitage asked if it would be taken off of the record. Mr. Dunway requested that the permit be removed from 1 Calamondin Street. Magistrate Armitage confirmed and stated yes. Code Officer Iachini confirmed it will be erased from the defendants record. Magistrate Armitage stated the only primary issue is until there is a primary residence on the property, Mr. Dunway will not live there or anyone else. And no ancillary buildings until there is a primary residence. Mr. Dunway stated I understand. Magistrate Armitage stated the City of Sebastian will draw up the paper work for Mr. Dunway to sign stating he will not return to the property without a principle structure. An order will be entered into effect to include a fine of $100 per day if the City of Sebastian finds Mr. Dunway in violation. Mr. Dunway stated he understands. Hearing adjourned at 2:46 p.m.