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HomeMy WebLinkAbout04251984MINUTES OF MEETING OF CODE ENFORCEMENT BOARD - APRIL 2~ 1984 MEETING WAS CALLED TO ORDER BY CHAIRMAN EARL WITHERBY AT 2:10 P.M. PRESENT: MARTIN LEWIS, GEORGE LA PORTE, GEORGE McCLEARY, PETER TARBELL, ELIZABETH O'CONNOR, CHAIRMAN EARL WITHERBY, BOARD ATTORNEY GREGORY GORE, ACTING CITY ATTORNEY. THOMAS PALMER. ABSENT: EUGENE POPOW ~EXCUSED). MOTION BY MR. McCLEARY SECONDED BY MR. MEETING OF FEBRUARY 8, 1984. CARRIED. LA PORTE, TO APPROVE THE MINUTES OF THE VIOLATION HEARING - CASE NO. 84-1 - RAYMOND POSPISIL: ATTORNEY GORE EXPLAINED TO MR. POSPISIL THE PROCEDURE TO BE FOLLOWED AND ADDED THAT IT WAS HIS UNDERSTANDING THAT MR. POSPISIL HAD WAIVED ALL FORMAL REQUIREMENTS WITH REGARD TO NOTICE OF THE HEARING SINCE HE WISHES TO GO OUT OF TOWN. ACTING CITY ATTORNEY PALMER MADE AN OPENING STATEMENT TO THE EFFECT THAT IN VIEW OF CERTAIN ASPECTS OF THIS CASE WITH REFERENCE TO THE BUILDING, HE IS INCLINED NOT TO PROSECUTE THE TWO CASES IN REGARD TO THE LOCATION OF THE BUILDING AND TO GO ON TO THE CASE ABOUT THE ACTUAL EXISTENCE OF THE BIRDS. DANIEL BLAIR, BUILDING OFFICIAL, UNDER OATH, TESTIFIED THAT PERMIT TO BUILD THE HOME, LOCATED AT #3 SUNSET DRIVE, WAS OBTAINED 3/27/80, AT WHICH TIME, OR PERHAPS A LITTLE PRIOR TO THAT, THE WORKSHOP WAS ALSO ERECTED. ON 3/1/83 A PERMIT WAS ISSUED TO BUILD A SECOND STORY ON TO THE WORKSHOP BY ACTING BUILDING OFFICIAL NORBERT RESOP. MR. BLAIR HAS HAD SEVERAL COMPLAINTS REGARDING ENCROACHMENT VIOLATIONS AS FAR AS THE BUILDING BEING IN AN EASEMENT. HE HAS LJfARNED THERE WAS NO PERMIT ISSUED FOR THE FIRST STORY BUILDING, BUT THERE WAS FOR THE SECOND STORY ADDITION. FIRST STORY WAg NOT BUILT WITHIN THE REQUIREMENTS FOR SIDE YARD SET BACKS. THERE IS 7'9" FROM PROPERTY LINE TO HIS BUILDING WHICH IS IN VIOLATION BECAUSE IT IS SUPPOSED TO BE 10'. A "NOT IN COMPLIANCE" NOTICE WAS ISSUED. HE ALSO KEEPS PIGEONS IN THE SECOND STORY AS A HOBBY AND THE ORDINANCE STATES YOU ARE NOT ALLOWED TO HARBOR FOWL IN THE CITY. ATTORNEY PALMER STATED THAT MR. POSPISIL ACTED IN GOOD FAITH WHEN OBTz~rNING A PERMIT FOR THE SECOND STORY AND THE CITY SHOULD HAVE NOTICED AT THAT TIME THAT THE ORIGINAL BUILDING WAS IN VIOLATION OF THE LAW. HE THOUGHT THE CITY WAS ESTOPPED FROM MAKING HIM MOVE THE BUILDING AND SUGGESTED THAT A SETTLEMENT AGREEMENT BE MADE WHEREIN MR. POSPISIL WILL AGREE, IN A RECORDED DOCUMENT, THAT IN THE EVENT THE CITY EVER NEEDS TO UTILIZE THE EASEMENT, HE WILL MOVE THE BUILDING AT HIS OWN EXPENSE AND THIS AGREEMENT WOULD BE BINDING ON ANY FUTURE PURCHASER. MR. BLAIR WAS OF THE OPINION THAT THE POSSIBILITY OF THE CITY EVER NEEDING THE EASEMENT IS VIRTUALLY NON-EXISTeNT. ATTORNEY PALMER DECLINED TO PROSECUTE THE CHARGE ABOUT THE BUILDING. IT WAS ATTORNEY PALMER'S OPINION THAT SECTION 5.3 DOES NOT PERTAIN TO THE PIGEONS. HE THOUGHT IT REFERRED MORE TO BARNYARD TYPE ANIMALS. HE, THEREFORE,DECLINED THAT CHARGE. ATTORNEY PALMER STATED THE CASE TO BE PRESENTED REVOLVES AROUND SECTION 5.3(d) AND HE WOULD HAVE TO CALL ON MR. EITZ~AURICE TO TESTIFY AS TO HOW IT IS AN ANNOYANCE, HOW IT INTERFERES WITH REASONABLE USE OF HIS PROPERTY, ETC. AND LET THE BOARD DECIDE WHAT, IF ANYTHING, MR. POSPISIL IS GOING TO HAVE TO DO TO ALLEVIATE THE PROBLEM. MR. FITZMAURICE STATED, UNDER OATH, THAT HE HAD NOT BEEN FORMALLY ADVISED OF THE MEETING. HE DID RECEIVE COPIES THAT THERE WAS TO BE A MEETING IN MAY AND A VERBAL ANNOUNCEMENT LAST WEEK THAT THERE WAS A MIX-UP IN PROCEDURAL MATTERS AND THAT IT WOULD BE ATTEMPTED TO BE SCHEDULED FOR TODAY. ON THE ADVICE OF COUNSEL, SINCE HE IS NOT A PARTY AT THIS PARTICULAR TIME TO THIS HEARING, NE HAS BEEN ADVISED TO STAND MUTE. ATTORNEY PALMER STATED THAT HE HAD BEEN INFORMED BY MRS. KRAGES, THE CITY CLERK, THAT MR. FITZMAURICE WAS IN HER OFFICE THIS MORNING AND NE WAS WELL AWARE OF THE MEETING. SOMEBODY HAS TO PRESENT EVIDENCE TO THE BOARD ON WHICH YOU CAN BASE A DECISION. EITHER MR. OR MRS. FITZMAURICE HAS TO TESTIFY TO THE FACTS OR THERE IS NO CASE TO PRESENT. THE BOARD CAN ONLY RELY ON WHAT THEY HEAR TODAY. IN RESPONSE TO QUESTIONS POSED BY A~TORNEY PALMER AND MR~ POSPISIL, MR. BLAIR TESTI- FIED THAT PERSONAL INSPECTION ON HIS PART DID NOT REVEAL ANYTHING OFFENSIVE EITHER TO SIGHT OR ODOR. ATTORNEY PALMER ADVISED MR. AND MRS. FITZMAURICE THAT MR. POSPISIL WILL NOT HAVE TO APPEAR BEFORE THE BOARD AGAIN ON THESE CHARGES. THIS WILL BE DECIDED TODAY. NO TESTIMONY HAS BEEN PRESENTED ABOUT INTERFERENCE WITH MR. FITZMAURICE'S PROPERTY SO ATTORNEY PALMER WAS OF THE OPINION THAT THE CHAIRMAN OF THE CODE ENFORCEMENT BOARD WOULD HAVE TO FIND THAT THE CHARGES HAVE NOT BEEN SUSTAINED. MR. POSPISIL, UNDER OATH, TESTIFIED IN HIS OWN BEHALF THAT HE DID NOT WISH TO ANTAGONIZE ANY OF HIS NEIGHBORS AND, ON OCCASION, YOUNG BIRDS DO GO ON OTHER PROPERTY, BUT HE CHASES THEM OFF AS SOON AS HE SEES THEM. NE HAS NOT NAD ANY COMPLAIN~ FROM ANY OTHER NEIGHBORS. . ATTORNEY GORE STATED IT WAS HIS UNDERSTANDING THAT THE CITY ATTORNEY HAS DECLINED TO PROSECUTE WITH REGARD TO VIOLATION OF SET-BACK REQUIREMENTS. ATTORNEY PALMER ADVISED THAT IT WAS INCUMBENT ON THE PART OF THE BUILDING INSPECTOR TO NOTICE THE VIOLATION BEFORE A PERMIT WAS ISSUED FOR THE SECOND STORY AND THE CITY CANNOT NOW TURN AROUND AND SAY THAT MR. POSPISIL WAS IN THE WRONG. ALSO, IF AN INSPECTION WAS MADE, THE BIRDS WOULD HAVE BEEN SEEN SINCE THEY WERE THERE BEFORE THE BUILDING WAS ADDED TO. HOWEVER, MR. POSPISIL MUST MAKE EVERY EFFORT TO KEEP THE BIRDS OFF OF OTHER PROPERTY BECAUSE THAT WOULD CONSTITUTE A VIOLATION. WHEN QUESTIONED BY ATTORNEY GORE, ATTORNEY PALMER STATED THAT ~ A MATTER OF FACT, IN LAW, THERE ARE ENCROACHMENTS AND VIOLATIONS OF THE ORDINANCES. IN FACT, THE BUILDING IS 7'9" RATHER THAN 15" AS REQUIRED. THE QUESTION IS WHE~ER THE CITY CAN DO ANYTHING ABOUT IT AS A LEGAL MATTER UNDER THE FACTS. ATTORNEY PALMER WAS OF THE OPINION THAT MR. POSPISIL SHOULD NOT BE FORCED TO MOVE THE BUILDING PROVIDING NE GIVES US A WRITTEN AGREEMENT, WHICH HE HAS CONSENTED TO DO. MR. POSPISIL HAD NO KNOWLEDGE THAT THE BUILDING WAS IN VIOLATION. Z~ WAS BUILT BEFORE HE BOUGHT THE PROPERTY. ATTORNEY GORE CAME UP WITH THE FOLLOWING FINDINGS OF FACT:.THAT THE ALLEGED VIOLATOR IS MAINTAINING A STRUCTURE ON THE RESIDENCE OF HIS PROPERTY WHICH ARE IN VIOLATION OF ARTICLE II, SECTION 7-20{a),CHABTER 7, CODE OF ORDINANCES~ ALSO, SECTION ~I, A-6, SECTION XIV, B-1 AND SECTION XIV, J, OF THE ZONING ORDINANCE 202, IN PARTICULAR THE FINDINGS OF FACT INDICATE THAT THERE ARE ENCROACHMENT PROBLEMS, THAT THE ORIGINAL STRUCTURE WAS ERECTED WITHOUT A PERMIT; HOWEVER, IT WAS THERE AT THE TIME MR. POSPISIL MOVED IN; THAT THERE IS AN ENCROACHMENT UPON EASEMENT AS ESTABLISHED BY THE VARIOUS ORDINANCES. AS TO CONCLUSIONS OF LAW, ATTORNEY GORE STATED THAT THE CITY ATTORNEY HAS DECLINED PROSECUTION ON CONDITION THAT IN THE EVENT THE - 2 - CITY SHOULD NEED THOSE AREAS UPON WHICH THE ENCROACHMENT ARE TAKING PLACE BY THE BUILDING, THAT MR. POSPISIL WILL REMOVE THE BUILDING SO AS NOT TO ENCROACH UPON THE EASEMENT AT HIS EXPENSE AND IT IS UNDERSTOOD THAT IN THE EVENT THERE IS THE NECESSITY OF GOING TO COURT ON THIS OR CONVENING THE CODE ENFORCEMENT BOARD, MR. POSPISIL WILL ALSO BE LIABLE FOR REASONABLE COSTS AND ATTORNEYS' FEES IN ENFORCING AN AGREEMENT TO BE SIGNED BY HIM. DURING THE BOARD'S DISCUSSION OF THE ENCROACHMENT VIOLATION, ATTORNEY GORE POINTED OUT THAT THIS IS A SETTLEMENT RATHER THAN A PROSECUTION OF A CASE. THE CITY ATTORNEY IS RECOMMENDING A NEGOTIATED SETTLEMENT WITH REGARD TO THESE CHARGES. IT WILL STILL HAVE TO BE DECIDED BY THE BOARD WHETHER TO ACCEPT THE SETTLEMENT. SEVERAL MEMBERS OF THE BOARD WERE UNDER THE IMPRESSION THAT ATTORNEY PALMER HAD DISMISSED THE CHARGES REGARDING THE ENCROACHMENT. CHAIRMAN WITHERBY REMARKED THAT IF THIS WAS SO, THERE WAS NO NEED FOR A SETTLEMENT TO BE DISCUSSED BY THE BOARD. ATTORNEY PALMER EXPLAINED THAT HE WAS DECLINING TO HAVE ANYBODY TO HAVE THE DISCRETION TO ORDER MR. POSPISIL TO REMOVE THE BUILDING. HE WANTED THE AGREEMENT ESTABLISHED. CHAIRMAN WITHERBY STATED THAT IF ATTORNEY PALMER WANTED TO WORK OUT AN AGREEMENT, THAT WAS UP TO HIM. IF HE DIDN'T WANT THE BOARD MAKING ANY KIND OF DECISION INVOLVING THE AGREEMENT, HE WAS REQUESTED TO INFORM THE BOARD THAT HE IS DROPPING ANY CHARGES AS CHARGED IN THE DOCUMENT PUT BEFORE THE BOARD AND IT WILL BE DROPPED RIGHT NOW. ATTORNEY PALMER THEN DISMISSED ALL CHARGES EXCEPT 5-3(d) - NUISANCES - ANIMALS THAT ARE CAUSING A NUISANCE TO THE NEIGHBORHOOD. ATTORNEY GORE STATED THAT ESSENTIALLY THE CITY HAS DECLINED TO PROSECUTE SO THERE WILL BE NO ORDER, NO FINDINGS OF FACT, AS TO THE VIOLATION OF SET BACK, NOR WILL MR. POSPISIL BE REQUIRED TO SIGN ANY AGREEMENT. CHAIRMAN WITHERBY STATED A FINDING OF FACT IS NEEDED ON SECTION 5~3, CHARTER V, ARTICLE (d). A WRITTEN COMPLAINT HAD BEEN RECEIVED FROM MR. AND MRS. FITZMAURICE. HOWEVER, THEY HAVE NOT PRESENTED THEIR CASE BEFORE THE BOARD TODAY. IT WAS POINTED OUT THAT THE CITY DID PRESENT THE CASE. THE CITY IS PROSECUTING, NOT MR. AND MRS. FITZMAURICE. ATTORNEY GORE STATED THAT THE ALLEGED VIOLATOR IS HARBORING PIGEONS. THE TESTIMONY PRESENTED BY THE CODE INSPECTOR INDICATED THAT THERE ARE NO LOUD NOISES, NO DAMAGE TO ANY PROPERTY, NO SERIOUS ANNOYANCE. HE HAS STATED THAT A COMPLAINT WAS RECEIVED FROM A MEMBER OF THE PUBLIC, WHICH IS PURELY HEARSAY, UNLESS WE HEAR FROM THE MEMBER HIMSELF, AND THERE ARE NO FINDINGS OF FACT TO INDICATE THAT THERE IS A NUISANCE WITHOUT FURTHER TESTIMONY. MOTION BY MR. LEWIS THAT THE CHARGES BE DISMISSED. MOTION DIED FOR LACK OF SECOND. MOTION BY MR. TARBELL THAT CHARGES BE DROPPED AT THIS TIME BECAUSE OF LACK OF PREGNANT EVIDENCE OR TESTIMONY. THE QUESTION WAS RAISED AS TO WHETHER CHARGES COULD BE BROUGHT UP AGAIN AT A LATER DATE. ATTORNEY GORE ADVISED THAT THE SET BACK AND ENCROACHMENT SITUATION IS A PERMANENT THING WHICH WILL NOT CHANGE AND CANNOT BE BROUGHT UP AGAIN. A NUISANCE IS A DAY TO DAY SITUATION AND COULD BE BROUGHT UP AGAIN. MR. TARBELL WITHDREW HIS MOTION. MR. McCLEARY PROTESTED THE IDEA OF DROPPING THE CHARGES, STATING THIS WAS NOT OUR OBJECT AT ALL, AND WE HAD NO JURISDICTION. ATTORNEY GORE EXPLAINED THAT THE ORDINANCE STATES "~; ANIMAL THAT CAUSES SERIOUS ANNOYANCE TO A NEIGHBORING RESIDENT". WE HAVE NO TESTIMONY FROM A NEIGHBORING RESIDENT. NE NAS DECLINED TO TESTIFY. THIS IN NO WAY INDICATES THAT THERE IS NOT A NUISANCE TAKING PLACE. WE HAVE NO TESTIMONY FROM A NEIGHBORING RESIDENT. THIS IS NOT A MATTER OF FINDING INNOCENCE. IT'S A MATTER OF DROPPING CHARGES FOR LACK OF EVIDENCE PROVIDED BY THE NEIGHBORING RESIDENT. MOTION BY MR. LA PORTE, SECONDED BY MR. LEWIS, THAT THE CASE BE DISMISSED DUE TO LACK OF EVIDENCE. ROLL CALL VOTE: AYES: MR. TARBELL MR. LEWIS MRS. O'CONNOR MR. LA PORTE CHAIRMAN WITHERBY NAYS: MR. McCLEARY MOTION CARRIED. THERE WAS A UNANIMOUS VOTE TO RE-APPOINT MARTIN LEWIS AND GEORGE McCARTY A~ MEMBERS OF THE CODE ENFORCEMENT BOARD FOR A THREE YEAR TERM. THERE WAS A UNANIMOUS VOTE TO ACCEPT THE RESIGNATION OF BETSY ADAMS. THERE WAS A UNANIMOUS VOTE TO APPROVE THE APPOINTMENT OF ELIZABETH O'CONNOR TO TEE BOARD. MR. TARBELL NOMINATED MR. LA PORTE TO SERVE AS CHAIRMAN FOR A ONE YEAR TERM. MR. LA PORTE DECLINED. MR. LEWI.~ NOMINATED MR. WITBERBY, SECONDED BY MR. TARBELL. MR. LEWIS MOVED THE NOMINATIONS BE CLOSED. THERE WAS A UNANIMOUS VOTE TO APPROVE THE APPOINTMENT OF MR. WITHERBY AS CHAIRMAN FOR A ONE YEAR TERM. MR. McCLEARY NOMINATED MR. POPOW AS VICE CHAIRMAN, SECONDED BY MR. TARBELL. CHAIR- MAN WITEERBY SUGGESTED THAT THIS BE RECONSIDERED SINCE MR. POPOW WAS NOT PRESENT TO ACCEPT OR REFUSE AND HE DIDN'T KNOW WHAT HIS BUSINESS STRUCTURE IS GOING TO BE. MR. McCLEARY WITHDREW HIS NOMINATION, MR. TARBELL WITHDREW HIS SECOND. MR. TARBELL NOMINATED MR. LA PORTE, SECONDED BY MR. McCLEARY, TO SERVE AS VICE 'CHAIRMAN. UNANIMOUS VOTE TO APPROVE. MEETING ADJOURNED.AT .]:23 P.M. - 4 -