HomeMy WebLinkAbout03202007CB Special~~ ~ ~.
CHAIRMAN
SEBASTIAN CONSTRUCTION BO~~'OVeCI / DAtes=1
Approved Subject TO -
SPECIAL MEETING
MARCH 20, 2007 - 7:00 P.M.
Meeting was called to order by Ch. Garland at 7:00 P.M.
Pledge of Allegiance was led by Ch. Garland.
ROLL CALL: Present: Mr. Hosey V.C. Morris
Mr. Widup Mrs. Carbano
Ch. Garland
Absent: Ms. Canning -excused
Mr. Dalessandro -excused
Mr. Conover - unexcused
Also present: Wayne Eseltine, Building Director/Official
Rich Stringer, City Attorney
Rebecca Grohall, Director, Growth Management
Jan King, Manager, Growth Management
QUASI-JUDICIAL PUBLIC HEARING:
DAMIEN GILLIAMS APPEAL OF AN ADMINISTRATIVE DECISION TO
REVOKE AN ELECTRICAL SUB-PERMIT FOR NON-COMPLIANCE WITH
RESOLUTION R-97-27 AT 806 INDIAN RNER DR.
Ch. Garland swore in all parties who will be giving testimony.
Mr. Charles Sanford, attorney for Damien Gilliams, spoke to the Board. He said he had
given a written brief on the arguments on Mr. Gilliam's behalf.
Mr. Stringer asked that the brief be submitted into the record.
Mr. Sanford read parts of the brief to get it on record. (copy of brief attached to minutes)
Damien Gilliams, 1623 U.S. Hwy. #1, Sebastian, Florida, presented his testimony.
Mr. Sanford asked if he was the owner of the property located at 806 Indian River Dr. to
which the answer was yes.
Mr. Gilliams said he applied for and received a permit in 2005 to repair the docks
damaged by the storms in 2004. The construction is 99% complete. Currently 47 dock
slips are in place with a total of 49 slips.
When an application for the electrical sub-permit was applied for, an electrical drawing
which looked similar to the 1997 dock plan was submitted. The drawings were done by a
certified electrical engineer to design 47 pedestals to meet a 1200 amp service.
Mr. Gilliams met with Mr. Eseltine in December to discuss pulling the permit himself as
an individual. Mr. Eseltine indicated he could issue asub-permit under the original
building permit for the dock. The permit was then issued. It was noted there was no
discussion of how many boat slips there were.
Regarding the electrical pedestals, originally there were 31, but some of them were dual
and some single. The 31 serviced 47 slips. The dual pedestals were listed on the
electrical drawings.
Mr. Gilliams was asked that in 1996 if he was present at a hearing concerning a special
use permit concerning the use of that facility for outdoor seating and relative parking to
that seating concept. He said he had never spoken in favor of limiting the number of boat
slips on his property. It was noted that he was not the owner of the property. It was
owned by his brother-in-law.
Mr. Sanford noted that the electrical sub-permit was necessary to complete the
construction of the dock. This was the logical next step in completion of apre-existing
permit, which allowed for the reconstruction of the dock.
Mrs. Carbano spoke regarding the 1996 site plan. It was set up for 15 slips, 5 spaces and
10 slips for the restaurant. This does not come up to 49 slips. Mr. Sanford said the site
plan is about parking, not boat slips. He said the boat slips were in place at the time of
that site plan. They were not a requirement of that site plan. He said they all had
electricity.
V.C. Morris noted that Mr. Eseltine did not revoke the permit without prior conversation
and an attempt to resolve the issue with Mr. Gilliams. Mr. Sanford said that Mr. Eseltine
still did not have the authority to revoke the permit.
V.C. Morris asked Mr. Gilliams what qualifications he had to act as an electrical
contractor. He said that when he moved to Sebastian, he worked for Brewer Electric. He
also had friends who were willing to help install the pedestals back to where they were
originally, prior to the storms.
Mr. Eseltine read a chronology of chain of events (copy attached to minutes) as he
recalled them.
In a meeting with Mr. Gilliams held 1/9/07, there was a discussion regarding Resolution
R-97-27 and referenced site plan approved 10/17/06. The resolution approved 105
indoor/outdoor seats for the restaurant and the site plan parking calculations only
provided 5 parking spaces for 15 boat slips for the marina and 10 boat slips for the
restaurant for a total of 25 boat slips. Mr. Gilliams noted he already had the electrical
permit, which Mr. Eseltine was not aware o£ In checking he found the permit had been
issued 12/18/06.
Mr. Gilliams was opposed to revising his plans in accordance with the stipulations set
forth in Resolution R-97-27 and the approved site plan 10/17/06. He wanted Mr. Eseltine
to accept a letter and a copy of his lease agreement with Hula Grill, his tenant, 806 Indian
River Dr. to re-allocate his parking. He was told he would need to seek guidance from
the Growth Management Department.
Since Mr. Gilliams was opposed to revising his permit to limit the electrical pedestals to
service no more than 15 boat slips in accordance with the approved site plan, Mr. Eseltine
felt he had no choice but to revoke the electrical permit.
Rebecca Grohall, Director of Growth Management explained to the Board how the
parking is calculated based on the uses.
Mr. Sanford asked to cross-examine Mr. Eseltine.
He noted Mr. Eseltine had said there was a violation of the site plan.
Mr. Eseltine said he was informed by Growth Management there were some issues
surrounding the property that may restrict the amount of boat slips Mr. Gilliams could
have.
Mr. Sanford noted the site plan drawing was from 1991 that in 1996 there was actually 49
slips in place at that site. He also said that in one of the letters received that the marina
was limited to the use of 25 boat slips. Mr. Eseltine said that in that letter it was stated 15
boat slips. "You may resume work under the electrical permit upon approval of corrected
plans showing electrical pedestals that would serve a maximum of 15 boat slips." It also
said 15 full service boat slips that would utilize 5 parking spaces on site, 10 transient boat
parking slips for the restaurant that do not utilize any parking, making it a total of 25 boat
slips approved for use.
In regards to the building permit, on 12/07/06, Mr. Eseltine met with Mr. Gilliams. He
was told what he would need in the way of an electrical contractor and what conditions
he could obtain a permit as an owner/builder. A permit was not issued at that time. It
was issued 12/18/06.
Rebecca Grohall, Director of Growth Management came back to the podium to continue
her testimony. She spoke in regards to the Resolution R-97-27 and went over the staff
report done by the Director of Community Development.
Tim Zelinski, Permitting Technician, was asked to come to the podium. Ch. Garland
asked if someone higher up told him to issue the electrical permit. He said Mr. Eseltine
told him to issue it.
A break was taken at 9:00 P.M. and reopened at 9:05 P.M. with all present.
Attorney Stringer passed out sections of the Sebastian Codes. He noted that if a city code
was violated, Mr. Eseltine did have the right to revoke the permit.
MOTION: Morris/Carbano
I make a motion that we uphold the revocation, of the permit issued by Mr. Eseltine,
predicated by the testimony and information presented to the Board, not only with the
package but also in addition to the information this evening.
ROLL CALL: Ch. Garland -yes Mr. Hosey -yes
V.C. Morris -yes Mr. Widup -yes
Mrs. Carbano -yes
Motion carries 5 - 0.
Hearing being completed, meeting adjourned at 9:25 P.M.
BEFdRC THE Ct~l~$il~RV~T~~~i 1~OAY~ OF TYKE CITY QF SEBAS7 IAN
YNDXAN RIVER COUNTY, FLOYT~DA
Damien t~illiams, .
Appellant,
RECEx~TED
Y' MAR 2 4 2007
'Wayne Eseltine,
Res~pondeut ~ ~'
AFPE~~AN'.C'S BRIEF
Nuw cuuirs Aplx'slhut, Da~uiea Gs11i2wYS,1xY and tluouugh his tuidorsigncd attorney
and respectfully requests that this Board overturn the decision by Respondent to t revoke
the electrlcal permit for 49 baRt slips locate. at 8Q6 Ttndian River T3rive in ~~:hagtitixt,
Florida.
C1n December 18, 20QG, a permit was issued to Appellant granting him ~ : right to
itzstall 31 electrical pedestals to provide power to ~9 bast slips at $06 Indi$n Riw e~ Drive
in the City of Sebastian. Un January 16, 2UU7, Wayne Eseltine, the wilding 17ir rctvr for
the City of Sebastian, in a letttr to Appellant, revoked the electrical permit citing .the site
plan which wan apprioved on October 17, 1 ~b and Resolution R-97-2'~ w); soh weft
adapted in May of 1997.
According to Section 26-66 of the City Code, there are limited circus astances
where a building official may revoke a permit. The first instance is sax p~.h (c) of
Section 26-66, which states that the building official may revoke a permit if th 3 permit
was obtained by any false stateme~rt or misrepresentation. Although Ivlr. F.seltine chinned
in his letter that Appellant acted in bad faith in applying for the permit, there wits no
misrepresentation on the part of Appellant in his application for the permit, nor v gas there
any bad faith.
Mr. Eseltine asserts in his letter that because Appellant was the represent ~tive for
the property at the public hearings concerning the 1996 site plan, he acted in b ad faith.
First, his assertion is incorrect, as Appellant wets not the representative for the pr ~pexty ax
the 1995 hearings. However, Appellant stipulates that he vvas' in fact preset ti at the
hearings and was given an opportunity to speak at the hearings. but he was net the
representative of the property. Either way, the Farb ~i AppCllai-~ wus luBSe ~t at the
hearings does not in any way represent bad faith on his part in applying for E :leetrieal
perinitt:, wvhich ware in no way addressed at thoso hearings. Further, the fact thf t he had
knowledge of the site plan does not represent bad faith, as the site. Plan-is a publ c retard
a»d the lnil~siic as a whole is on notice of the site plan. His attendance at the meel ing does
not give Appellant specistl notice of the site Plan.. Any other member of the puti lie is on
as much notice as Appellant as m the site plan.
Z0 ~tld QziO~hIdSS3~IGHJ L69ZZt5tiZLL EZ ~ZZ L00Z/0Z/E0
If any individual or entity has special notice of the site plan, it is in fact the
building inspector. As a public official, he is charged with notice of all site p .ens and
therefore when Appellant filed his application for a permit, Mr. Eseltine3 was rec ui=ed to
review all prior plans and resolutions relating to the property prior to the issuan~ s of the
site plan, not as an afterthought nn~ lhn pcrmil ~ alrCtuly i~suad. Because tl ~cm was
no misrepresentation on the part of Appellant, Mr. Eseltine could not revoke Ap xllant's
permit under paragraph (c) of the Coda Section 24-66.
TJae other Code Section which allows the building inspector: to rc coke an
electrical permit, paragraph (d) is in the case of unsafe electrical installations. ~ here has
been no assertion of awry unsafe installations or any installations which are hazardous to
public safety, and therefore the building inspector may not revoke the permit w ider this
paragraph either.
lVlr. Eseltine, in his letter, cites Section 2d-8S of the Gity CodC for the cut ~ority to
revoke the elextrical permit. Section 26-85 does not allow for revocation of a pe mit, but
merely allows the building inspector to c4nuct errors inn the plans ar in conshvct on or of
violations of the Giry Gods. Thera are no errors in the electrical permit applicat .on or in
the plan for installation of the electrical pedestals, nor is there'. any, assertion that such an
error in the plan or construction exists. The building inspector has asserted that 1 here is a
maximum number of boat slips under they site plan and that the proposed numbs ~ of beat .
slips violates the site plan. T~owever, this has nothing to do with. the electrica permit.
T'h~c boat slips arc already is place, crud Appellant merely wishes to provide pow sr to the
already existing slips. If'there was a violation of the Code or site plan, this has m -thiag to
clo with the eleactricsl permit. Even if it did, the only authority granted 1VIr. Eselti ie under
26-85 is to correct errors, not to revoke the permit. Thcrefvre, because Mr. Eselti ne is not
authorized to revoke a permit for the reasons he has cited, he exceeded his ; ~uthorlty
r the Code in so doing.
However, even assuming ~lhxt Ivlr. )rr~lluiv dicl lixtve flow authority to rc' role the
permit if he found it inconsistent with the site plan, the site plan does not set s rr aximum
number of boat slips. In fast, all of the boat slips were already iu existeuee when ~ the site
plan was approved. The site plan's conditions. which Mr. Eschine cites only deal with the
mimbE<r of parking spaces. Under the site plan. ono parking space is designated ' br every
three boat slips and the permit allows for 42 parking spaces, five of which era do signatexl
for 15 boat slips. At than time, there were 49 boat slips in existence,-brtt.o~y five parking
spaces designated for 15 boat slips plus 10 transient slips. lint there was no req ~irement
' in the site plan that the other 24 boat slips remain unused. Appellant has not regi jested an
increase 1n the allocation of parkfn~; sptu:~s. Hn uccsrGly wvishes to provide all o~ the boat
slips which have been in existence since before the site plan was approved with ~:lectrical
power.
1Lesolution R 97-27, cited by Ivor. Eseltine, adds no additional restrictio: ~s to the
site plan, brut merely states. that all of the site plan requirements shall: be complied with.
E0 3Jdd Q~IO.~NGSS3~21t/H~ L691Z6bZLL Ei ~TT L09Z/0Z/E0
Bccause Mr. Eseltlne lacked the authority to ~tevoke the permit once it vva ~ issued
to Appellant, and because the issuance of tha permit in no way viols~d a ~y City
Ordinance, the site plan or any resolution, the revocation of the permit sh Auld 6c
overturned and the building inspector should be told to immediately reissue tht ~ permit
and r.Ca.~ scul ciGSist l'rosu iuterf~cring fiu-tlicr with the installation of elecCrical pcd :staffs at
tha site.
~v
Charles H. Sardard
3UU3(~cdinat T3rive, Suite B
'V'ero Beach, ~ 329b3
(772) ~E92-1695
(772) 492-197
Florida Bar No. 702821
Attorney for Appellant
b0 3JCd Qz10dNtJSS3~21GH~ L69TZ6bZLt EZ ~ZI L00Z/0Z/S9
Electrical permit for 806 Indian River Dr. Chronolo~y
On 2/11/05 permit for dock repair was applied for and issued. DEP permit was submitted
and valid at time of permitting.
On 12/7/06 applied for an electrical permit to provide 31 electrical pedestals to service 47
boat slips. A that time it was discussed as to how the permit was to be issued. Mr.
Giiliam__s initially complained about the cost of the permit fees. To accommodate Mr.
Gilliams, I told him that I would be willing to make the permit asub-permit to the master
dock permit, which would save him money in permitting fees. Also discussed under what
conditions Mr. Gilliams could obtain such a permit as an owner/builder.
Sometime in early December after speaking with Mr. Gilliams it was brought to my
attention by Growth Management that there were possible restrictions on this property
that would limit the amount of boat slips. Upon investigation into the property file, it
appeared that through resolution R97-27 the amount of boat slips were limited in order to
gain extra seating for the restaurant. Although the dock permit was properly issued by
DEP and the City. It would be improper to allow Mr. Gilliams to energize more than the
15 slips ti'~at were allowed by resolution R97-27.
On 12/18/06 the electrical permit was issued in error. It appears that our permit
technician believed that the electrical permit was okay to issue as asub-permit to the
master dock permit and assumed the plans were already approved with the master plan
for the dock, as we often see with other projects, when in fact, they were still under
review and had not been stamped approved.
On 12/21/06, three days after the permit was issued, Mr. Gilliams was contacted by
phone to inform him there were problems with issuing his electrical permit and that I
wished to discuss these issues with him in person. He wanted to postpone the meeting
until after the holidays.
On 1/9/07 I met with Damien Gilliams. We discussed resolution R97-27 and the
referenced site plan approved on 10/17/96. The resolution approved 105 indoor/outdoor
seats for the restaurant and the site plan parking calculations only provide 5 parking
spaces for 15 boat slips for the Marina and 10 boat slips for the Restaurant (transient boat
traffic), for a total of 25 boat slips. Mr. Gilliams then disclosed that he already had the
electrical permit. After checking the computer system, I discovered that the permit had
been inadvertently issued on 12/18/06.
At our meeting on 1/9/07 Mr. Gilliams was opposed to revising his plans in accordance
with the stipulations set forth in Resolution R97-27 and the approved site plan from
10/17/96. Mr. Gilliams wanted me to except a letter and a copy of his lease agreement
with Hula Grill to reallocate his parking. I indicated to him that he would have to obtain
an approval from Growth Management to reallocate the parking and advised him to seek
guidance from our Growth Management Director.
Since Mr. Gilliams was opposed to revising his permit to limit the electrical pedestals to
service no more than 15 boat slips in accordance with the 1996 approved site plan. This
left me no choice but to send a letter to revoke his electrical permit, since his plans could
not be approved. Mr. Gilliams was informed that the Building Department will not
engage in a game of "catch me if you can", and an issued building permit is not a license
to violate Building Codes or City Ordinances. It appears that Mr. Gilliams did not apply
for the electrical permit in good faith since the records show that when the resolution was
approved in May of 1996, Mr. Gillams spoke in favor of the approval of the resolution.
Therefore, he was aware of the details that surrounded the approval.
Investigation of other related permit activity along Indian River Dr
• Capt'n Butcher's was visited while a new dock was being built. Owner showed
that he had obtained his DEP approval and he was instructed to take his DEP
approval to the Building Dept to obtain a building permit. A copy of the DEP
approval was found in the property file but no permit was ever issued for a reason
unknown. (this can be easily remedied with an after the fact permit)
• Capt'n Butcher's electrical permit for the dock was issued to Complete Electric, a
reputable local contractor. No electrical plans were obtained; but the electrical
work was to being done by an electrical contractor. (At the time the Building
Department was bombarded with hurricane repair work and a housing boom.
Quite often hurricane repair work was expedited in 2004 and 2005 to allow
properties to be restored as quickly as possible)
• Squid Lips obtained a hurricane damage dock permit and was required to provide
an engineered plan to repair a shifted lap joint in awood-piling under the
restaurant caused by dock damage.
• Squid Lips currently has a stop work order on the seawall construction due to a
lack of proper permits, engineered plans and DEP approval for a new seawall
where none existed before the hurricanes.
• Hurricane Harbor has a stop work order placed on the property due to a dock that
was put in without a permit and has not obtained DEP approval. Ongoing
situation with obtaining a DEP permit since the dock is not the same as it was
before the Hurricanes. Other recent violations exist on this property since
ownership changed to Captain and the Cowboy.
• Sebastian Boat Tours dock permit was restricted to the original residential dock
only until the longer dock proposed is released from DEP.
• Capt'n Hirams, from what I recall, the docks were not completely destroyed.
Shifted pilings were allowed to be re-aligned without a permit from DEP or the
City. Obtained a permit to replace fuel line to the docks. There has been nine
different hurricane damage related permits that have been issued on this property.
Prepared by: Wayne Eseltine, Building Director
cnvoF
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HOME OF PELICAN ISLAND
CONTRACTOR LICENSING
1225 MAIN STREET • SEBASTIAN, FLORIDA 32958
TELEPHONE: (772) 388-8245 • FAX (772) 589-2566
SEBASTIAN CONSTRUCTION BOARD
SPECIAL MEETING
MARCH 20, 2007 - 7:00 P.M.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
QUASI-JUDICIAL PUBLIC HEARING:
DAMIEN GILLIAMS APPEAL OF AN ADMINISTRATIVE DECISION TO
REVOKE AN ELECTRICAL SUB-PERMIT FOR NON-COMPLIANCE WITH
RESOLUTION R-97-27 AT 806 INDIAN RIVER DR.
ADJOURN
NOTE: IF ANY PERSON DECIDES TO APPEAL ANY DECISION MADE ON THE
ABOVE MATTERS, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS
AND FOR SUCH PURPOSES, HE/SHE MAY NEED TO ENSURE THAT A
VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD
INCLUDES THE TESTIMONY IN EVIDENCE ON WHICH THE APPEAL IS
BASED. TWO OR MORE ELECTED OFFICIALS MAY BE IN ATTENDANCE.
CONAGEN.DOC
revised 1/4/02
AMENDED 6/14/05