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HomeMy WebLinkAbout05182005 CEB ""'OF ~ ~ HOME Of PELICAN ISlAND 1225 Main Street, Sebastian, FL 32958 (772) 589-5330 . Fax (772) 589-5570 CODE ENFORCEMENT BOARD MINUTES OF REGULAR MEETING MAY 18, 2005 I. Chairman Dodd called the meeting to order at 2:00 p.m. with a pledge to the flag. He introduced the new alternate member, Raymond Tetro 2. ROLL CALL: Present: Chairman Charles Ed Dodd Eva Schofield Ronald Van Buskirk Carl Anderson Hank Buchanan Howard Brauer (alt) Raymond Tetro (alt) Absent: Excused: Fred Clement Also Present: Code Enforcement Officers Growth Management Director Growih Management Manager City Attorney Code Enforcement Board Secretary Warren Lindquist Antoine Van Meir Richard lachini Tracy Hass Jan King Rich Stringer Shirley Lynch 3. Chairman Dodd then asked for corrections of the minutes to the April 20, 2005 meeting, He asked that the secretary move Hank Buchanan from present to excused for this meeting, also on page 3 paragraph 2 line 20 he asked that we replace the sentence beginning with, "Chairman Dodd asked" with "Chairman Dodd asked if Mr. Dannen was at the September meeting, Mr. Dannen stated he was. Chairman Dodd asked Mr. Dannen if he was told that the case would be held over to the October 2005 meeting; he stated he was but he did not attend the October meeting because he wasn't notified in writing." Chairman Dodd feels that this statement better represents what was said at the meeting. The minutes to the April 20, 2005 Code Enforcement Board meeting were approved as amended by a voice vote 7-0 Please note alternate members Howard Brauer & Raymond Tetro will be voting at this meeting because of the absence of one board member and the resignation of another. Code Enforcement Meeting May 18, 2005 Page 20f8 4. Additions & Deletions- Officer VanMeir asked to delete item "B" Case 2005-249 5. NOTICED HEARINGS: A. VIOLATION HEARING- CASE #2005-6831 Alan's May tag Appliances- Michael Haley, proprietor . SECTION 54-4-18.2 LAND DEVELOPMENT CODE- In all cases requiring site plan review, no structure or parldng area, or part tbereof, sball be erected or used, or land or water used, or any cbange of use consummated, nor shall any building permit be issued therefore, unless a site plan for such structure or use shall have been reviewed and approved pursuant to tbis article. Site plan violation- Dumpster must be removed from property or the site plan must be modified to allow same. Chairman Dodd swore in Officer Warren Lindquist. Officer Lindquist stated his qualifications and the City's case regarding the dumpsters on the rear of the property. He presented a photo taken this date showing the dumpsters not being removed nor fenced in. Officer Lindquist read the November 1998 site plan review decision. Tracy Hass, Growth Management Director, was sworn in. He stated Planning & Zoning called for the removal of the dumpsters in 1998; however, there is a need for the dumpsters at this time. After notification of the dumpster violation, Alan's Maytag did, through Mr. Haley's engineer, present a proposal that included the dumpsters. This plan is consistent with the Land Development regulations and is ready to be signed off for authorization of inclusion of two dumpsters, with dumpster pads, and enclosures. The proposal was presented to the Planning & Zoning Commission and they have approved the plan. Growth Management will authorize the installation of the improvements, which requires some site work for the storm water swale that needs to be re-graded to accommodate the dumpsters. He feels that the applicant will correct the current violation once the site plan has been officially approved. Mr. Hass feels a reasonable time frame for project completion will be 90 days. Mr. Haley, owner of Alan's Maytag, was sworn in. He stated that he felt the time frame to finish the plan should be longer and explained the background of the problem since he took over the business in December 2004. Officer Lindquist recommends that the board find that a violation does exist, but is now come into compliance, any other violation will cause the respondent to be a repeat offender. Sal Neglia was sworn in. He showed pictures of the area in question to the board members taken 5/13 and 5/18/05 explaining that there was no problem for 16 years but now there is a problem. After a discussion by the board members, MOTION on case #2005-6831 made by Chairman Dodd finding the respondent in violation of SECTION 54-4-18.2 LAND DEVELOPMENT CODE & that the Code Enforcement Board rehear this matter at their September 21,2005 meeting to determine if they have successfully corrected that violation. City Attorney Stringer stated the Board must find them in violation and give them a reasonable amount oftime to come into compliance. Chairman Dodd modified his motion stating that the respondent must come into compliance by September 21, 2005, at which time the Code Enforcement Board will determine if they are in Code Entorcement Meeting May 18, 2005 Page 3018 compliance, and if not, beginning September 22,2005 they will be assessed at $250.00 per day until they come into compliance with the code. Motion seconded by Carl Anderson. After a question, Me Hass stated that the City is responsible for the roadway behind the businesses in that area and that it was strictly intended as a service alley and the improved reconstruction of that alley was geared to support the heavy traffic it receives. Me Tetro stated the garbage in front of the dumpsters is not acceptable. After looking at the pictures taken by Me Neglia, Mr. Haley stated the fence shown in the picture is not on his property. Mr. Haley further stated that Waste Management missed a pickup last week, that is why there is so much debris shown in the picture. He is looking into increasing the size of the dumpster or increasing the pickup days. ROLL CALL VOTE: Chairman Charles Ed Dodd Eva Schofield Ronald Van Buskirk Carl Anderson Hank Buchanan Howard Brauer Raymond Tetro Yes Yes Yes Yes Yes Yes Yes Motion carried 7-0 C. VIOLATION HEARING- CASE #2005-9139 ARMANDO ALMANZA- 834 GILBERT STREET . SECTION 66-3 CODE OF ORDINANCE- The maiRtaiRing, using, placing, depositing, leaving or permitting to be or remain on any public or private property of any of the following items, conditions, or actions is bereby declared to be and constitute a nuisance; provided, bowever, this enumeration shall not be deemed or construed to be conclusive, limiting or restricti'\'e: (1) Accnmulations of trasb, litter, debris, garbage, bottles, paper, cans, rags, dead or decayed fish, fowl, meat or other animal matter, fruit, vegetables, offal, bricks, concrete, scrap lumber, or other buildiug debri.. or other refuse of any nature; (2) Any condition which provides barborage for rats, mice, snakes, and any other vermin Officer Van Meir was sworn in by Chairman Dodd. He gave his qualifications and presented the City's case. Me Almanza was given 48 hours to remove the violation- Officer Van Meir went back to inspect the property on April 15th on April22nd and again on May 17th the property remained in violation. He showed pictures taken on May 17, 2005, showing trash and debris. He explained there are odors that are attributable to the garbage which would be a separate violation. He stated that the property is much better now than on the first visit. He feels the owner has made an effort to remove the offenses but the property is still not in compliance. Me Almanza was sworn in by Chairman Dodd. He stated that the shingles and tires have been removed already. He will be able to bring the property into compliance within the three days. MOTION made by Ronald VanBuskirk finding the owner in violation at this time, giving him three days to clean up the property, after the third day a $250.00 a day fine will be imposed until the property is brought into compliance, seconded by Chairman Dodd. Me Anderson asked to amend the motion to say, "in the future if this problem returns to Code Enforcement Meeting May 18, 2005 Page 40f8 non-compliance, a $250.00 per day fine will begin immediately until the property is brought into compliance." City Attorney Stringer stated ifthe board finds the owner out of compliance on the date this was noticed, the board can make a finding now; the law then allows, if it happens again, the fines can go back retroactively from the date the board gave him the first notice. He stated there is no need to modify the motion as suggested by Mr. Anderson; the rest happens automatically by law. ROLL CALL VOTE: Chairman Charles Ed Dodd Eva Schofield Ronald Van Buskirk Carl Anderson Hank Buchanan Howard Brauer Raymond Tetro Motion carried 7-0 Yes Yes Yes Yes Yes Yes Yes D. VIOLATION HEARING- CASE #2005-2815 RALPH PALACE, JR.- 1480 SCHUMANN DRIVE . SECTION 66-3 CODE OF ORDINANCE- Tire JIIlIintaining, using, plating, depositing, leaving or pennitting to be or remain on any public or private property of any of tbe following items, conditions, or actions is bereby declared to be and conmtote a mrisance; p.b.;ckd, howenr, tlld e.......elation llbaII not be dumcd 01' construed to be conclusive, limiting or restrictive: (1) Accumulations of trasb, litter, debris, garbage, bottles, paper, cans, rags, dead or decayed fish, fowl, meat .... otber animal matter, fruit, vegetable5, offal, brid<s, concrete, scrap lumber, or other buihling debris, or other refuse of any nature; 12) Inoperative, junk or abandoned vehicles and vessels on tbe exterior portions of residential property Officer Van Meir presented the City's case. He stated the owner of the property was issued a notice of violation on 1/31/05 and was given 30 days to comply. At the end of that date, Mr. Palace called and asked for an extension of 30 days. Officer Van Meir granted the extension because of the steady work being done to remove the violations. He believes that Mr. Palace has made a concerted effort to comply but has not yet brought the property up to code. Officer Van Meir presented the photos taken on May 17, 2005 showing the violations. Howard Brauer wanted a motion to have the city clean up the property. Officer VanMeir stated the property could be posted, then have a vendor go in to clean up the property and bill the property owner. Mr. Stringer stated pursuing the nuisance abatement code is an administration function and only the city manager can anthorize this. After a discussion, Chairman Dodd made a MOTION on case #2005-2815 to hold the respondent in violation of code SECTION 66-3(1 X12) and give respondent fourteen (14) days from date of notification to comply, ifnot complied by that date, a $250.00 per day fine will be assessed until the property is brought into compliance, second by Ronald VanBuskirtk ROLL CALL VOTE: Chairman Charles Ed Dodd Eva Schofield Ronald VanBuskirk Carl Anderson Hank Buchanan 'lTl1PT [nil.... :.J 1..1 1 "'i1<iJe. wn<:J.1. HIt::: Ullt:::"WIU Uti II UltiV UU UUlI,;Vll1JJlV. Yes Yes Yes Yes Yes Code Enforcement Meeting May ] 8, 2005 Page 50f8 Howard Brauer Raymond Tetro Yes Yes Motion carried 7-0 E. VIOLA nON HEARING - CASE #2004-23470 SEBASTfAN HARBOR LTDI HURRICANE HARBOR RESTURANT -SECTION 54-4-18.7 LAND DEVELOP1\1ENT CODE- Expiration, transferability and extension- Site plan approval shall expire 12 months after f"maI approvat. if construction bas not been started as evidenced by steady and continuous progress, including the pouring of footings by said termination date. -SECTION 54-4-18.2( e) LAND DEVELOP1\1ENT CODE- Conformance with land development regulations, required. All buildings, structures, or uses shall be erected, altered, ;nfla11AA, and "'aint~inPII in full conformity with the provisions of the land development regulations and approved site plans. Mr. Stringer stated that he has reviewed the minut~ from the legal standpoint, he does oot believe a person can be in violation of 54-4-18.7. He said in order to violate something the person must be told to do something and not do it, or not to do something and do it. This ordinance does not tell the person to do or not do anything, it only states the site plan is good fur a certain amount oftime What can be violated is to use the property when its not in accordance with an approved site plan. The second charge (54-4-18.2(e) can be violated. He couldn't tell from the minutes if the Board received evidence that the respondent is doing something that required site plan approvaL Because this is a redevelopment there was restrictions on the use of the deck and a certain dinning room at the same time. Ifthey are being used coneurrently without fulfilling the approved site plan, then the Code Board would have a bases to find that the respondent violated 54-4-18.2(e). Because the old parking lot was a grandfathered non-eonforming lot and it appears this redevelopment has expanded it, that would have removed the grandfather status & if the respondent is now using the parking lot & the Board has received evidence that they are using the expanded parking lot but that the parking lot is not in accordanee with an approved site plan or the site plan is not all there, then the Board would have a basis to make a decision after reviewing those items. Mr. Stringer feUs that 54-4-18.7 is an administrutive directive as to when site plans lapse versus when they are still valid. There is no prohibition on action, there is no requirement of action within that code section. He explained that he was in North Carolina during the last meeting, he sent out e-rnails regarding this, and apparently they did oot reach the code enforcement section. He will make sure that does not occur again. He further went on to say that if this were not a redevelopment but a new development, no certificate of occupancy would be issued to occupy and begin using the site until the site plan has heen completed. In this case, if they had kept things the way they were, there was no requirement that they come in and change things, it was grandfuthered. What was grandfathered there was the condition that they could not use the front dining room scating and the deck scating at the same time, also, the parking lot has been expanded and the grandfather clause has removed that status. Now to use it, this lot must be in conformance with the site plan. If the board believes the respondent is not conforming with the approved site plan then there is a basis to find them in violation of 18.2(e). He wrote a letter to Attorney Dill stating that he did not consider the action of the board at the last meeting to be a final order because under the statutes a code enforcement finding must say they are not in compliance and give the respondent a reasonable amount of time to come into compliance. The order must also state what the fine will be if they do not comply. Officer VanMeir stated he is going to remove 54-4-18.7 from this agenda item and concentrate on 54-4-18.2(e). He then presented a few photos of the area. Paved parking with no wheel stops, the oil container has been removed to the rear of the dumpster almost into the retention pond. The silt barrier has been completely removed at this time. The grass and weeds have been cut in the Code Enforcement Meeting May 18, 2005 Page 60f8 retention pond area, no sod has been placed nor has the stabilization process of the retention pond begun, the paved parking area was not paved in conformance with the requirement of 1-1/2 inches; the tar measures approximately y, au inch. He showed an overview of the parking area, and the covered deck area that cannot be used at the same time as the front dinning room. He stated an amended site plan has been given to the City for review, but has not been approved as yet. He feels no other site plan can be approved on this location until the current approved site plan has been completed. He feels this area shows signs of environmental issues that need to be addressed. Officer Van Meir stated the city wants the respondent to do exactly what they agreed to do. Mr. Stringer stated that the city can say don't use the property until you finish the site plan. The city always try's to be reasonable and accommodating when dealing with a redevelopment. Chairman Dodd asked Mr. Hass what the conditions of use are in the approved site plan. Mr. Stringer stated there are two sets of conditions, those that they were operating under before the last group of improvements that included not using the deck and front dining room seating at the same time and the current site plan that the respondent did improvements under. Mr. Hass replied, under the revised site plan that has been submitted but not yet authorized, the respondents have proposed to eliminate the southern most parking aisle, a revision of the landscaping to just the north end of the site and a few light poles on the site. The City feels that that is in violation of the code in the sense that they're operating the entire restaurant, they need to provide the storm water retention area, that will accommodate all of the impervious surface that has been already improved on the site even though they are planning on removing the one parking aisle that does not eliminate any of the need for the storm water, they need the three aisles of parking to meet the minimum standard and that would require the improvements to the parking areas with the parking stalls and the stabilization of the parking spaces as well as the institution of the entire storm water system, the trash enclosure, the institution of the parking lighting. The original site plan that was approved stipulated that until they made these improvements, they could not operate the deck and the banquet room simultaneously but they coold operate them individually. Unless all the improvements have been installed according to the approved site plan, they are in violation of the eode. The City feels that progress so fur has not shown that the respondents are working toward completion of the required site plan improvements. Mr. Dill was sworn in- He said the only violation sited in the October 2004 order is that the site plan hasn't been eomp]eted in one year and that Mr. Stringer states that is not really a violation. Mr. Dill & Mr. Dodd agreed that the October 2004 order is void. Mr. Dill doesn't fee] that there is evidenee or anything before the board to base a decision on. He respectfully asked the board to dismiss the case at this point, give him a ehance to work with the staff. If the problems are not worked out, it would be appropriate then to have a clean violation notice given so it is quite clear as to what the violation is so that the city staff knows what they are arguing and he can represent his client and best defend them. Mr. Dodd stated that twice the board told the respondents to do exactly that, take some time and work ,...ith the staff to get everything cleaned up. He commented that neither time did that happened. Mr. Dill doesn't feel that the stipulations sueh as not using the deck and the dining room at the same time have been in the form of a condition of the site plan approval. He stated that his clients told him that they are coming in with a major new site plan for everything on the west side of Indian River Drive, and that everything that has been put in that area will have to be dug up. Mr. Dodd feels that the Board needs a very specifIC definition of which land development code is being violated. Mr. Stringer stated the specific violation in the eode provision is that the respondents are using the property not in accordance with the approved site plan. Mr. Brauer asked what improvements have already been done since our last meeting on the parking lot. Mr. Dill stated the irrigation system is in place, plants have been ordered and paid for and were supposed to be installed before today but haven't been. Upon questioning Mr. Hass read into the record the original agreement dated June 10, ] 993, "Hurricane Restaurant agrees to maintain their grandfuthered in 200 seat restaurant at ]540 Indian River Drive in Sebastian. Hurricane Harbor Restaurant will construct a new north side deck Code Enforcement Meeting May 18,2005 Page 70f8 which will contain 80 seats. The main waterfront dining room will maintain 120 seats and the west side banquet room ,,~ll maintain 80 seats. Hurricane Harbor Restaurant agrees not to use the north side deck and west side banquet room at the same time. By using the main waterfront dining room in conjunction with only the north side deck or the west side banquet room at one time Hurricane Harbor Restaurant will comply with its 200 seat restriction. Hurricane Harbor Restaurant will enforce this restriction through its own management. Hurricane Harbor Restaurant agrees to open its doors to the City of Sebastian inspection any time. Hurricane Harbor Restaurant be in violation of using both the north deck and west banquet room at the same time it will be open to what ever reasonable penalty the City of Sebastian would feel appropriate including temporary suspension of its occupational license. " He stated that this agreement was signed by Jack Eromin, the manager of Hurricane Harbor Restaurant. Mr. Hass stated once the City receives a plan that is consistent with code, the revision may be approved. He stated the respondents havc submittcd a plan that outlines some of the improvements but, in the City's opinion, it is not in full compliance with the regulations that would permit operation of the restaurant. Mr. Dill presented paperwork for the record including Exhibit B-1 a partial transcript of the April 20, 2005 Code Enforcement Board meeting, Exhibit B-2 a copy of the minutes to that meeting, Exhibit B-3 a copy of Section 54-4-18.7 of the City of Sebastian Land Development Code, Exhibit B-4 a copy of the Notice of Violation dated 8/19/04, Exhibit B-5, a copy of the 10/15/04 Findings of Fact , Exhibit B-6 a copy of the 4/20/05 Finding of Fact, Exhibit B-7 a copy of the memo by Secretary Lynch to the Code Enforcement Board members dated 4/29/05, Exhibit B-8 a copy of a Jettcr from Mr. Dill to Tracy Hass dated 1/25/05, and Exhibit B-9 a chronological list of events composed by Mr. Dill. After a question by the Board, Mr. Dill commented that he could not let the Board know when the current site plan would be completed. Officer VanMeir asked that the Board find Hurricane Harbor not in violation in this case and come back with a new clear case against Hurricane Harbor/Sebastian Harbor Ltd for a violation. After further discussion Chairman Dodd swore in Mr.Norbert Kreyer, (Sebastian Harbor, Ltd) & Mr. George Dannen (Hurricanc Harbor) Mr. Kreyer reported that he was not notified as to what use of the property he was accused of being in violation of. Mr. Dill stated the 8119/04 Notice of Violation that was handed out is the basis of the case before the Board now. Mr. Kreyer read the notice. Mr. Dill stated he has based his case on this violation notice. He feels his client was denied due process and now he must present facts and evidence when he doesn't know what the charges are, further, that the Board hasn't heard any evidence from anyone that says what the violation is. He asked for a copy of the letter written by Jack Eromin dated 6/10/93. Mr. Kreyer stated he was not authorized to sign anything like this and this ",-as the first time he has seen this letter. Mr. Dill stated that there is no condition with the city regarding this letter, it was not authorized and is not binding on his client, further and can not be used that they have violated the terms of that letter. He stated there are not conditions under that site plan with the City. Officer VanMeir, as prosecutor, dismissed case #2004-23470. As per the motion made at the April 20, 2005 meeting, since this case has been dismissed, the order made just dissolves. Chairman Dodd editorialized that the city is concerned about the work not being done. 7. CHAIRMANS MATTERS- There were none 8. MEMBERS MATTERS: It was a consensus of the board members to have a update on prior cases- Mr. Stringer stated as the board is a quasi judicial board, the judge washes his hands of the matter after entering an order. The Code Enforcement Board is supposed to have a hearing on a case only, they are not supposed to have extraneous matters. After a discussion, Chairman Dodd asked the secretary to include a memo on the status of past cases with the meeting packet. The Board welcomed Mr. Stringer back. Code Enforcement Meeting May 18, 2005 Page 80f8 Mr. Brauer asked about the nuisance abatement orders. Mr. Stringer stated that is an administrative system, where the law provides the city the authority to take care of the problem and charge the property owner for the work done to bring the property into compliance with the city codes. 9. ATTORNEY MATTERS: Mr. Stringer commented that the Code Enforcement Board is the hardest citizen board to be on- Members have to step away from their interest that got them on the board. Members must watch how they expres& things. IO.CODE OFFICER MATTERS: Officer VanMeir introduced Richard Iachini, the new City Code Enforcement Officer. He then showed the board a photo presentation of a past case that came before the Board. The property was brought into compliance There being no further business to come before the Board, Chairman Dodd adjourned the meeting at 4:25 P.M. Approved at the ~ Jfd; 2tJ 200' Code Enforcement Board meeting. ~~ Chair an Charles "Ed" Dodd