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O'Hare vs Town of Gulf Stream 4th DCA Case No. 4D13-621 (13147.9)
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From: "Matias, Sally" <SMatias@jonesfoster.com>
To: Kelly Avery <kavery@gulf-stream.org>
Subject: FW: O'Hare vs Town of Gulf Stream 4th DCA Case No. 4D13-621
(13147.9)
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O'Hare vs Town of Gulf Stream 4th DCA Case No. 4D13-621 (13147.9)
Attached
Amended Petition for Writ of Certiorari
Amended Appendix
Order Denying Petition
Sally Matias Secretary to John C. Randolph, H. Michael Easley, and Keith W. Rizzardi
Direct Dial: 561.650.0458 | Fax: 561.650.5300 | smatias@jonesfoster.com <mailto:smatias@jonesfoster.com>
Jones, Foster, Johnston & Stubbs, P.A.
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Attached
Amended Petition for Writ of Certiorari
Amended Appendix
Order Denying Petition
Sally Matias Secretary to John C. Randolph, H. Michael Easley, and Keith W. Rizzardi
Direct Dial: 561.650.0458 | Fax: 561.650.5300 | smatias@
Matias, Sally
Kelly Avery
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Matias, Sally
Matias, Sally
KAVERY
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Anonymous
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Kelly Avery
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kavery@gulf-stream.org
Kelly Avery
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EnUs
1FV5908-petition amended writ certiorari.PDF
i I IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CHRISTOPHER F. O'HARE, Petitioner, Case No.: 4D13-621 vs. L.T. No.: 2012-CA-OII07 Town of Gulf Stream, Respondent. ---------------------
------,/ AMENDED PETITION FOR WRIT OF CERTIORARI Petitioner, Christopher F. O'Hare ("O'Hare"), petitions this Court to issue a writ of certiorari quashing the decision of the circuit
court below and remanding with instructions for the circuit court to: 1) quash the decision denying O'Hare's permit application, which sought to install a metal roof on his single-family
residence and requiring O'Hare to apply for a variance before any metal roof will be permitted; and 2) instruct the circuit court to require the Town of Gulf Stream to advise O'Hare
as to the type of metal roof that would be appropriate to the building and the neighborhood. INTRODUCTION This "second-tier" certiorari proceeding arises out of the circuit court's
per curiam affirmance of the decision of the Commission of the Town of Gulf Stream (the "Town") sitting as the Board of Adjustment (the "BOA"), which denied O'Hare's request for a revision
to his existing residential Building Permit (the
"Permit"). The requested Permit revision would have permitted O'Hare to substitute the previously-approved concrete tile roof with a metal one. O'Hare had received an engineer's certification
that the structure of O'Hare's residence would not support concrete tile. The BOA concluded that O'Hare was required to apply for a variance before he would be permitted to install
a metal roof because O'Hare would not allow the Town's engineer to inspect the premises and verify the professional opinion of O'Hare's engineer that O'Hare's residence could not support
a concrete tile roof, a condition not required by the plain language of the Town's design manual (the "Code"). The question here is whether the Code allowed the Town to reject O'Hare's
Permit revision application on this basis. O'Hare established below that it did not. BASIS FOR INVOKING JURISDICTION Article V, section 4(b)(3) of the Florida Constitution gives the
district courts of appeal jurisdiction to issue writs of certiorari. A circuit court's review of quasijudicial actions by local governments is by way of a petition for certiorari, such
as the petition O'Hare filed in the circuit court below. See Miami-Dade County v. Omnipotent Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Fla. R. App. 9.100(c)(2). 2
I The circuit court's decision to grant or deny certiorari is reviewable in this
Court by way of a petition for certiorari, which is often called "second-tier certiorari review." Id. On second-tier certiorari review, this Court reviews whether the circuit court (l)
afforded procedural due process and (2) applied the correct law. Id. Jurisdiction is appropriate in this case because, as shown below, the circuit court failed to apply the correct
law which resulted in a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 884, 889 (Fla. 2003) (discussed infra). This Amended Petition for Writ of Certiorari
is timely filed. O'Hare filed his original Petition within thirty (30) days of the circuit court's per curiam denial of O'Hare's Amended Petition for Writ of Certiorari, which was rendered
below on January 28,2013. See Fla. R. App. P. 9.l00(c)(2) (applying the appellate rules to certiorari review of quasi-judicial actions by local governments and requiring petition to
be filed within thirty (30) days of rendition of order to be reviewed). At the time O'Hare filed the original Petition in this Court, he sought leave to file this Amended Petition for
Writ of Certiorari. On March 18, 2013, this Court issued an Order granting O'Hare leave to file an Amended Petition and Amended Appendix on or before April 2, 2013. O'Hare complied
with that Order and, therefore, this Amended Petition is timely filed. 3
STATEMENT OF THE CASE AND OF THE FACTS
,
On August 29, 2011, O'Hare submitted a "ROOFIRE-ROOF PERMIT APPLICATION" to the Town seeking to replace the roof on a single-family residence he was refurbishing. (Amended Appendix "A"
I.') The proposed roofing material was a concrete tile that was similar to the tile that existed on the roof at the time O'Hare submitted the permit application form. (AI.) The Town
granted O'Hare's permit application and issued the Permit authorizing the installation of the concrete tile roof on or about August 29, 2011. (AI.) The Permit did not contain a specific
expiration date, but it required the work to be commenced within 180 days or the Permit would expire for lack of use. (AI.) After O'Hare removed the old concrete tile in anticipation
of installing the new concrete tile in accordance with the Permit, O'Hare became concerned that the building would not safely support the new concrete tile roof. (See AI5:l9-21.) Consequently,
O'Hare consulted Terrence E. Lunn, a licensed, professional engineer. (A15:19-21.) Lunn gave O'Hare a verbal opinion that the building would not support the proposed concrete tile roof.
(AI5:20-21.) Consequently, on November 15, 2011, O'Hare's roofing contractor, Rooffec, Inc. ("Rooffec"), filed a permit revision request, which sought to revise 1 Citations to the Amended
Appendix will be in the following format: AI: 1. The first number indicates the tab number of the relevant document in the appendix and the second number denotes the actual page of
that document. If the citation is generally to the document as a whole, only the tab number will be provided. 4
the Permit to allow RooITec to install a metal roof on the home (the "Revision Request"). (A4.) In the Revision Request, RooITec's representative stated: "customer wants to change to
metal roof." (A4; see also A1S:20.) At the hearings on the appeal from the denial of the Revision Request, O'Hare's counsel denied that O'Hare ever said he simply "wanted" a metal roof
and represented, under oath, that O'Hare wanted any type of roof that was proper under the building code and that could be supported by the existing building. (AI3:22-23; A1S:14-1S,
30.) O'Hare's counsel also stated that O'Hare would have preferred a shingle or a shake roof to a metal one, but that shingle and shake roofs were absolutely prohibited by the Code.
(AI3:22-23; see also A8.) In response to O'Hare's Revision Request, the Town's Planning and Building Department Administrator and Town Manager, William H. Thrasher ("Administrator Thrasher"),
stated that "No metal roofs are permitted in Gulf Stream, period." (A2:2-3; AI3:4; A14; A1S:7.) Administrator Thrasher misrepresented the plain language of the Code and failed to disclose
that the Code actually does permit metal roofs under certain circumstances. (See A7, § 70187(2) of the Code.) Indeed, O'Hare subsequently learned that the Code did, in fact, provide
an exception for metal roofs under certain circumstances. (See A1S:7, 22.) Although Article V, section 70-99(3) and Article VI, section 70-187(2) both generally state S
that all metal roofs are prohibited, Article VI, section 70-187(2) also includes an
exception which reads, in pertinent part: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re-roofing
of existing structures based upon an engineer's certification that the existing structure will not support a tile roof. Additionally, unpainted copper may be used either as a decorative
accent or on minor accessory structures. (A7:2; see also A8 (generally prohibiting metal roofs).) Given the two requirements of Article VI, section 70-187(2) of the Code, O'Hare asked
Lunn to put his verbal opinion that the building would not support a concrete tile roof into writing. (See AS; A1S:20-21.) Thereafter, Lunn issued a certification dated December 14,
2011, which stated: The existing roof framing will not support the design loads of a concrete or clay tile roof. The lightest roofing system possible is needed. I certifY to the best
of my knowledge, belief and professional judgment that the referenced roof framing will not support a tile roof. (AS.) O'Hare submitted Lunn's report to Administrator Thrasher in support
of his Revision Request and asked Administrator Thrasher to advise him as to the type of metal roof that would be appropriate to the structure and the neighborhood. (See A2; A6:3.)
Despite Lunn's certification as required by Article VI, section 70187(2) of the Code, on March 6, 2012, Administrator Thrasher denied O'Hare's 6
Revision Request and stated that O'Hare could not install a metal roof on the premises unless and until he applied for and obtained a variance. (A2; A6.) Administrator Thrasher stated:
The Town does not have a "list of metal roof materials" which you requested as such roof materials are prohibited by two section [sic] of the code; section 70-187(2) and 70-99(3), with
section 70-99(3) being the most restrictive of the two. "Prohibited. Metal roofs (except unpainted copper when used as a decorative accent or a minor accessory structure)". [sic] Therefore,
a variance application would be required to allow the use ofmetal roofmaterials. ... In the event a variance application is filed, permission to enter the structure will be necessary
so that technical experts can properly evaluate the applicable structural components. (A6:3 (emphasis added).) Because O'Hare disagreed that a variance was required under the Code,
O'Hare appealed Administrator Thrasher's determination that all metal roofs are prohibited without a variance. (A2; AI3; AI4; AIS.) The BOA held two public hearings related to O'Hare's
appeal of Administrator Thrasher's decision, one on April 13,2012, and another on May 11,2013. (A2; A3; A13; AIS.) At the April 13, 2012, hearing, O'Hare's counsel, Lou Roeder, explained
that a variance was not required because the applicable Code contained an exception to the prohibition against metal roofs where the homeowner was reroofing an existing building and
had produced an engineer's certification that the building would not support a tile roof. (AI3:4-13.) Roeder argued that 7
I Administrator Thrasher's conclusion that a variance was required before a metal
roof could be permitted was an erroneous interpretation of the plain language of the Code. (Jd.) He further argued that although Article V, section 70-99(3) and Article VI, section 70-187(2)
appear to conflict on the question of metal roofs, Article VI, section 70-186(b) expressly states that in the event of a conflict between Articles V and VI, the provisions of Article
VI prevail. (A7:1.) Consequently, Roeder argued that the Code did not require O'Hare to seek a variance and that because O'Hare met the terms of the exception, the Town should, in accordance
with Article VI, section 70-187(2), advise O'Hare as to the type of metal roof that would be appropriate to the structure and the neighborhood. (A13:4-13.) Administrator Thrasher responded
that he believed that items that were prohibited by the Code required a variance. (AI3:15-16.) In addition, Administrator Thrasher admitted that there was a conflict in the Code between
7099(3) and 70-187(2). (AI3:16.) Indeed, Administrator Thrasher stated that he did not disagree with O'Hare's interpretation of the Code, but he did not think that the mechanism for
the exception provided in 70-187(2) should be driven by the homeowner. (AI3:17.) Administrator Thrasher contended, without any authority from the Code or elsewhere, that a single engineer's
certification should not be sufficient to trigger the exception. (AI3:17.) Administrator Thrasher further 8
contended that the Town should have some voice in the process. (A13:18.) He
argued that this was particularly true in this case where the home had been built with a concrete tile roof in 1972 and then re-roofed with similar materials in 1999. (A13:18.) Administrator
Thrasher admitted, however, that he did not know what had transpired between 1999 and 2012 to result in Lunn's certification that the structure would not support a concrete tile roof.
(A13:18.) O'Hare's counsel, Roeder, responded that the Code did not provide for such a review by the BOA or the Town. (A13:10, 22, 24,25,32-32.) Nevertheless, the BOA inquired as to
whether, in an effort to resolve the matter, O'Hare would agree to allow one of the Town's engineers to inspect the property and to confirm or deny Lunn's certification regarding the
building'S ability to support concrete tile. (A13:23-25.) Roeder responded that he did not believe the Town was entitled to question Lunn's certification or that, given the plain language
of the Code, O'Hare would allow such an inspection without further justification. (A13:24.) Roeder also stated that the only question before the BOA was whether Administrator Thrasher
was correct that O'Hare could not install a metal roof without first applying for and obtaining a variance. (A13:4, 21, 25.) Commissioner Devitt represented that the Town enacted the
exception in Article VI, section 70-187(2) because, at the time the Town was adopting its new Code, there were pre-existing shingle and shake roofs and the new Code was going 9
to absolutely prohibit those roofing materials. (A13:28-29.) As a result, the Town needed to provide those homeowners with an alternative material to be used in any re-roofing project
if it were determined that the roof framing on those homes would not support concrete tile. (AI3:28-29.) Commissioner Devitt stated that given that history, the Town should be allowed
to question Lunn's certification because the building had supported a concrete tile roof for nearly forty years. (A13:29.) An architect who was present at the hearing as a member of
the public advised the BOA that there had been changes in the safety values of wood over time. (A13:30.) The architect represented that a more conservative engineer might give the wood
a lower safety value than a less conservative one, which could create differences of opinion among engineers. (A13:30.) Roeder responded that Florida's recent experience with hurricanes
have changed the codes as well. (A13:3!.) After Roeder's response, several Commissioners asked Roeder if O'Hare would allow the Town to inspect the building and to verify Lunn's certification.
(AI3:3!.) Roeder answered that O'Hare had not previously been willing to do so. (AI3:3!.) Roeder indicated that O'Hare wanted a decision on whether a variance was required first and,
only then, could the Town consider whether it could seek verification of Lunn's certification. (A13:32.) 10
t In response, the Town's counsel, Randolph, stated that two questions were presented to the BOA for review: 1) whether a variance is required at the outset; and 2) if not, whether the
Town is permitted to test the accuracy of the engineer's certification provided by the homeowner as part of the exception process. (AI3:27.) After further discussion, Randolph advised
the BOA that a variance was not required, but stated that he believed, without any supporting authority from the Code or elsewhere, that the BOA could require verification of the homeowner's
certification. (AI3:32-33.) Randolph did not assert that Article VI, section 70187(2), as drafted, was intended to or did permit the Town to verify the engineer's certification provided
by the homeowner. (AI3:32-33.) Despite Randolph's advice that a variance was not required, the BOA voted to defer action on O'Hare's variance-related appeal until the next meeting scheduled
for May II, 2012. (A2; AI3:36-38.) The BOA stated that the deferral would allow time for the Town to hire an engineer to inspect the roof and to agree or disagree with Lunn's certification.
(Id.) The BOA stated that if the Town's engineer agreed with Lunn, it would be a "done deal." (AI3:35.) The BOA also stated, however, that if the Town's engineer disagreed with Lunn,
then the Town's engineer and Lunn could jointly select a third engineer to break the tie. (A2; AI3:36-38.) The BOA also stated that if O'Hare would not allow the Town's 11
I engineer to inspect the premises, it would decide the appeal at the next meeting in May. (ld.) At the next public meeting on May 11,2012, Randolph reported that O'Hare would not agree
to allow the Town's engineer to verify Lunn's certification. (A3; AlS:3-4.) Roeder stated that O'Hare would not permit the Town's engineer to inspect the property unless certain questions
were answered first, including but not limited to: 1) who would pay the engineers' fees;2 2) who would be liable if the Town's engineer and the third engineer disagreed with Lunn, the
Town forced O'Hare to install a concrete tile roof, and the concrete roof subsequently failed; and 3) whether the Town had any precedent to support its attempt to impose additional
conditions on O'Hare for the approval of a metal roof that are not expressly included in the Code. (A3; AlS:4-7.) Roeder argued that the Town kept moving the goal posts. (AlS:7.) When
O'Hare first asked about a metal roof, he was told "no metal roofs, period." (Id.) Then, when O'Hare found out about the exception and complied with it, the Town responded that O'Hare
had to obtain a variance. (AlS:7.) Next, at the April hearing, the Town admits that O'Hare's interpretation of the Code may be correct, 2 Roeder appears to be referring to the fees
of the Town's engineer as well as any third engineer selected by Lunn and the Town's engineer in the event of any disagreement between the first two engineers. At the conclusion of
that May 11, 2012, hearing, one Commissioner indicated that the Town would pay for its own engineer, but he did not address how any third engineer might be paid. (See AIS:32.) 12
but indicates that metal roofs are not desirable. (A1S:7-8.) At the conclusion of
the April hearing, the BOA decides to defer a ruling on O'Hare's simple appeal of Administrator Thrasher's ruling that a variance is required until O'Hare agrees to allow the Town's
engineer to verify Lunn's certification. (A1S:8.) Roeder further argued that O'Hare has been proceeding by the book, but the Town is seeking to hold him to a higher standard than that
required by the Code. (A1S:8-9.) Roeder asserted that the plain language of the Code simply did not provide the Town with the right to challenge the engineer's certification provided
by the homeowner. (A3; A1S:7-11, 13, 16, 23-24, 27.) He pointed out, yet again, that the only ruling O'Hare appealed was Administrator Thrasher's conclusion that a variance was required
before a metal roof could be approved for O'Hare's property. (A1S:11.) Randolph responded that at the April meeting, the ruling was that O'Hare was entitled to receive a variance subject
to verification of Lunn' s certification, but that because O'Hare would not agree to that procedure, he advised the BOA that they must now decide whether a variance is, indeed, required.
(A1S:12.) Roeder responded that the Town was imposing a requirement on the metalroof exception contained in Article VI, section 70-187(2) that is not required by the Code, and that
the BOA should keep the two issues separate. (A1S:13.) He also complained that the Town was casting doubt on Lunn's certification for no known reason. (A1S: 13.) Roeder stated that
it is logical that when a building is thirty-five 13
years old, like the one at issue here, there will be material fatigue over time. (A15:13.) Moreover, the applicable codes have become more stringent over time on issues like wind and
weight loads. (Id.) Roeder also reminded the BOA that the motion at the April meeting was not to approve the requested exception or to say that a variance was not required, but to defer
ruling on O'Hare's appeal in its entirety until the Town could verify Lunn's certification, which is a condition not imposed by the Code. (A15:14.) Roeder argued that the Town was seeking
to conflate the two issues. (Id.) In response to Roeder's arguments, Vice Mayor Orthwein stated that the Town wanted to verify Lunn's report because the Town simply could not accept
the certification in light of the fact that the house had had a concrete tile roof for thirty-five years. (A15:15.) Roeder responded that to Impose a requirement of verification was
a monumental shift given the Code's plain language. (A15:16.) Roeder argued that the Code plainly states that once the homeowner establishes the elements for the exception, i.e., re-roofing
and engineer's certification, the Town must tell the homeowner what style and type of metal roof it may install. (A15:16.) Administrator Thrasher pointed out that the Revision Request
completed by O'Hare's contractor stated merely that O'Hare wanted to change to a metal roof; it 14
did not reference any structural problem with the approved concrete tile roof.
(A15:18.) The Town Clerk then testified that she spoke to "Diana" at RoofTec who stated that 0 'Hare just wanted a metal roof and that Diana did not know why the tile roof had not been
laid because the permitted underlay for the tile was already in place. (A15: 19.) 0 'Hare's counsel responded that "Diana" was not the contractor; she was merely a contact person, and
anything she had to say was irrelevant. (AI5:20.) Thereafter, Mayor Koch advised Roeder that if O'Hare would not allow the Town to verify Lunn's certification, the BOA could not proceed
with O'Hare's Revision Request. (AI5:23.) Once again, Commissioner Devitt contended that Article VI, section 70-187(2) was put into the Code to take into account preexisting shake or
shingle roofs, which are now absolutely prohibited by the Code. (AI5:23; A8.) Roeder responded that the Code says no such thing and that if the Town had wanted to limit metal roofs
only to those re-roofing projects that where replacing shingle or shake, the Code could have said that, but it did not. (AI5:24.) He reiterated that roofs deteriorate over time and
cannot withstand the same loads. (AI5:25.) He also restated O'Hare's position that a variance was not required, O'Hare had met the only stated conditions for the exception, and that
nothing in 15
the Code allowed the Town to reject Lunn's certification in the absence of verification. (A15:26-27.) Indeed, Randolph, the Town's counsel, expressly agreed that a variance was not required
for a metal roof under Article VI, section 70-187(2) of the Code. (A15:27.) Randolph stated, however, the question now is whether the Town could require a variance in the absence of
verification of Lunn's certification. (A15:27.) Randolph had previously asserted that he believed it was reasonable for the Town to be able to verify the engineer's report provided
by the homeowner. (A15:12.) Randolph did not assert, however, that the Code currently provided the Town with that right. (A15.) Roeder responded that verification is not required or
permitted by the plain language of the Code. (A15:28.) Roeder added that the language of Lunn's certification was proper and the standard language used by engineers making similar certifications.
(A15:28-29.) Consequently, Roeder asked if the problem was simply that the Town did not like metal roofs. (A15:28-29.) Randolph responded that it is not accurate to say that the Town
does not like metal roofs because the exception expressly allows metal roofs. (A15:29.) Randolph stated, however, that because the home had had a concrete roof for many years and O'Hare's
Revision Request merely stated that he wanted to change to a metal roof, the Town had reason to want to verify Lunn's certification. (A15:29.) 16
Roeder denied that O'Hare ever said he "wanted" a metal roof. (A15:30.) That was a representation that was made by the contractor's representative, not by O'Hare himself. (AI5:30.) O'Hare
wants any roof that is appropriate and will be supported by the existing roof framing. (AI5:15, 30.) Indeed, Roeder stated that his client would love to have a concrete tile roof, if
the building could support it. (A15: 15; see also A13:22-23 (stating that if O'Hare could not have concrete tile, he would prefer shingle or shake, but those types of roofs are strictly
prohibited).) After further discussion about why the BOA believed verification of Lunn's certification should be permitted, the BOA voted to affirm Administrator Thrasher's decision
that O'Hare must obtain a variance before he would be permitted to install a metal roof. (A3; A15:32-34.) The BOA based its decision on its conclusion that because the Town had not
been permitted to verify Lunn's certification, O'Hare did not comply with the exception contained in Article VI, section 70-187(2), and therefore, a metal roof was prohibited without
a variance. (Id.) The BOA did not assert, however, that the original intent of Article VI, section 70-187(2) was that the Town was entitled to question and verify the engineer's certification
provided by the homeowner. (A15.) The Town issued its Notice of Final Action on O'Hare's appeal on May 30, 2012. (A9.) The Notice of Final Action sustained Administrator Thrasher's
conclusions and required that O'Hare obtain a variance before proceeding with the 17
installation of a metal roof. (A9.) The Notice of Final Action stated, in pertinent part: The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building
Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not allowed
the Town to verify the engineering report you submitted, with regard to the strength ofthe structure. (A9 (emphasis added).) Although the BOA stated that it was affirming Administrator
Thrasher's conclusions, the BOA and Administrator Thrasher actually cited different reasons for why a variance was required. (Compare A9 with A6.) The BOA concluded that a variance
was required because O'Hare would not allow the Town to verify Lunn's certification; whereas, Administrator Thrasher had concluded that there was no exception allowing for metal roofs
and that the only way a metal roof could be approved was for the homeowner to obtain a variance. (Jd.) The BOA's Notice of Final Action failed to acknowledge that O'Hare's appeal was
limited to the question of whether a variance was required, not whether the Town could require verification as part of the process of qualifying for the exception expressly provided
by Article VI, section 70-187(2). On June 18,2012, O'Hare filed an amended petition for writ of certiorari to the Circuit Court, Fifteenth Judicial Circuit, in and for Palm Beach County,
Florida. (AIO.) After the Town responded (All), the circuit court issued a per 18
curiam order denying O'Hare's amended petition without opinion (the "Order"). (A12.) The court filed the Order on January 28,2013. (A12.) Between the time O'Hare filed the amended petition
for certiorari in the circuit and the rendition of the Order, the Town amended Article VI, section 70187(2) of the Code. The proposed amendment read, in pertinent part, as follows:
I Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re-roofing of existing structures based
upon subject to receipt by the town of an engineer's certification that the existing structure will not support a tile roof, said certification to append the engineer's study(ies) and
report(s) supporting said certification and subject further to an engineer appointed by the town confirming said engineer's certification. Additionally, unpainted copper may be used
either as a decorative accent or on minor accessory structures. (A17:8 (emphases and striking original); see also A16 (Ordinance 12/4 as enacted).) NATURE OF THE RELIEF SOUGHT O'Hare
files this Amended Petition for a Writ of Certiorari seeking secondtier review of the circuit court's Order denying the amended petition for a writ of certiorari filed below. O'Hare
requests that this Court quash the Order below, remand with instructions for the circuit court to quash the BOA's decision and to require the Town to advise O'Hare of the nature and
type of metal roof he is permitted to install on his residence without the need for a variance. 19
ARGUMENT
The Amended Petition in this case should be granted and the Order quashed because the Order violates clearly established principals of law and results in a miscarriage ofjustice. Kaklamanos,
843 So. 2d at 889. O'Hare complied with the plain language of the Code by: 1) establishing that he was re-roofing his residence; and 2) providing a proper certification from a licensed,
professional engineer that the existing structure would not support a concrete tile roof. The Code does not authorize the Town to require the homeowner to allow the Town's engineer
to inspect the property and, if the Town's engineer disagrees with the provided certification, to hire and pay for a third engineer to break the tie. Likewise, the Code does not require
the homeowner to obtain a variance in the event the homeowner refuses to comply with conditions imposed by the Town that are not contained within the plain language of the Code. Therefore,
by failing to quash the BOA's affirmance of Administrator Thrasher's variance requirement on certiorari review, the circuit court departed from the essential requirements of law by
failing to follow clearly established law, which resulted in a miscarriage of justice. Consequently, the Order should be quashed and the case remanded with instructions for the circuit
court to quash the BOA's decision requiring O'Hare to obtain a variance. 20
Standard of Review On second-tier certiorari review, this Court must determine whether the circuit court (1) afforded procedural due process; and (2) applied the correct law. Miami-Dade
County, 863 So. 2d at 199. This two-pronged, second-tier standard of review is simply another way of asking whether the circuit court "departed from the essential requirements of law."
Id. (citations omitted). Therefore, the ultimate consideration is whether there has been "a violation of a clearly established principal of law resulting in a miscarriage of justice."
Kaklamanos, 843 So. 2d at 889. "Clearly established law" is not limited to case law. It "can derive from a variety of legal sources, including recent controlling case law, rules of
court, statutes, and constitutional law." Id. at 890. Thus, a circuit court's failure to apply controlling legal precedent provides a basis for granting certiorari review. United Auto.
Ins. Co. v. County Line Chiropractic Center, 8 So. 3d 1258, 1259-60 (Fla. 4th DCA 2009); Stranahan House, Inc. v. City ofFt. Lauderdale, 927 So. 2d 1068, 1069 (Fla. 4th DCA 2006); Concerned
Citizens of Bayshore Community, Inc. v. Lee County, 923 So. 2d 521, 523 (Fla. 2d DCA 2005); Maple Manor, Inc. v. City of Sarasota, 813 So. 2d 204 (Fla. 2d DCA 2002).3 3 For a thorough
discussion of the concept of applying the "correct law" in the context of second-tier certiorari review, the Court may wish to review Walbolt, 21
"The standard of appellate review on issues involving the interpretation of statutes is de novo." B.Y. v. Dep't ofChildren & Families, 887 So. 2d 1253, 1255 (Fla. 2004); see also Home
Const. Management, LLC v. Comet, Inc., So. 3d _, 38 Fla. L. Weekly D294, *1 (Fla. 4th DCA Feb. 6, 2013) (citing Tasker v. State, 48 So. 3d 798, 804 (Fla. 2010)). Generally, however,
a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. Las Olas Tower Co. v. City ofFt. Lauderdale, 742
So. 2d 308,312 (Fla. 4th DCA 1999) (citations omitted). That deference is not absolute, however. ld. (citation omitted). Indeed, when the agency's construction of a statute amounts
to an unreasonable interpretation or is clearly erroneous, it cannot stand. ld. (citation omitted); see also GO Comm. ex reI. Hale v. City of Minot, 701 N.W.2d 865, 871 (N.D. 2005)
('''We will ordinarily defer to a reasonable interpretation of a statute by the agency enforcing it, but an interpretation which contradicts clear and unambiguous statutory language
is not reasonable.'" (quoting Lee v. N.D. Workers Compo Bureau, 587 N.W.2d 423, 425 (N.D. 1998))). Here, the plain language of the applicable Code provision provides that a homeowner,
like O'Hare, is entitled an exception to the prohibition against metal roofs, if the structure is being re-roofed and an engineer has certified that the Sylvia H. and Sevi, Leah A.,
The "Essential Requirements ofLaw" When Are They Violated?, 85 MAR Fla. B.J. 21 (March 2011). 122 I I
I f existing structure will not support a tile roof. (A7.) Nowhere in Article VI, section 70-187(2), or in any other section of the Code, is the homeowner required to allow the Town's
engineer to inspect the premises to verify the engineer's certification provided by the homeowner. Rather, the plain language of the Code clearly states that once the re-roofing homeowner
has produced the engineer's certification, the Town must advise the homeowner as to the type of metal roof that may be installed as is appropriate to the building design and the neighborhood.
(A 7.) No other interpretation is reasonable given the plain language of the Code. Indeed, this interpretation of Article VI, section 70-187(2) is the only reasonable interpretation
under a proper reading of the Code as a whole. It is undisputed that shingle and shake roofs are absolutely prohibited in the Town. (See A7; A8; AI3:14-15, 22-23, 28-29; AI5:23-24.)
Consequently, if a structure cannot support concrete tile, the only suitable - and lighter - roofing material allowed by the Code is metal. (See A7; A8.) Therefore, the Town enacted
Article VI, section 70-187(2) to provide homeowners whose structures could not support cement tile roofs with some kind of alternative roofing material. (See AI3:14-15, 22-23, 28-29;
AI5:23-24.) In doing so, the Town used clear and unambiguous language that once a homeowner establishes through a licensed engineer's certification that the structure will not support
concrete tile, the Town must advise the homeowner as to the style and type of metal roof that is appropriate to the 23
I
{
r I t structure and the neighborhood. (A7.) The plain language of Article VI, section 70-187(2) did not contemplate or provide that the Town would want or need to verify the engineer's
certification submitted by the homeowner. (A7.) Therefore, Article VI, section 70-187(2) clearly and unambiguously did not require the homeowner to permit an inspection of his premises
by the Town's engineer as a condition of satisfying the exception. Even the Town seems to have recognized this to be the case. After the BOA denied O'Hare's appeal of Administrator
Thrasher's decision requiring a variance, the Town amended Article VI, section 70-187(2) of the Code (the "Metal-Roof Amendment,,).4 See Keck v. Eminisor, 104 So. 3d 359, 369 (Fla.
2012) (stating that courts may consider a subsequent amendment to a statute to assist it in interpreting the original legislation) (citing Prison Rehab. Indus. v. Betterson, 648 So.
2d 778, 779 (Fla. 1st DCA 1994) (quoting Dade County v. AT & T Info. Sys., 485 So. 2d 1302, 1304 (Fla. 3d DCA 1986))); see also State Dept. of Highway Safety & Motor Vehicles v. Scott,
583 So. 2d 785, 787 (Fla. 2d DCA 1991) (granting a petition for a writ of certiorari and stating that its interpretation of the relevant statute was consistent with the principle that
courts have the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent 4 The original version of Article VI, section 70-187(2), which was
in effect at the time of O'Hare's appeal, will continue to be referred to as Article VI, section 70187(2). 24
legislation) (citations omitted). In the Metal-Roof Amendment, the Town, for the first time, made the Town's right to verify the homeowner's engineer's certification a condition precedent
to the metal-roof exception. (AI7.) The MetalRoof Amendment now requires the homeowner to: (1) produce not only the engineer's certification, but also the engineer's studies and reports;
and (2) allow the Town's engineer to inspect to premises to determine whether the Town's engineer agrees that the structure cannot withstand a cement tile roof.5 (AI6.) Given the new
conditions contained in the Metal-Roof Amendment, it is clear that the Town changed the pre-existing Code; it did not merely clarify it. The Metal-Roof Amendment imposes new and different
requirements on the preexisting exception contained in the Code. These conditions did not exist in the clear and unambiguous language of Article VI, section 70-187(2) prior to the Metal-Roof
Amendment. These are entirely new requirements that did not exist before O'Hare made his Revision Request or appealed Administrator Thrasher's conclusion that O'Hare could not install
a metal roof without a variance because metal roofs were absolutely prohibited. Indeed, neither the members of the BOA, Administrator Thrasher, nor attorney Randolph, asserted (or even
suggested) that 5 The Metal-Roof Amendment is silent on the question of how a conflict between the Town's engineer and the homeowner's engineer will be resolved and whether the Town
will assume liability for or insure against damage to the structure if the Town's engineer is wrong in concluding that the structure will support a concrete tile roof. (See AI5:4-7
(raising questions regarding cost and liability that, when asked, were not answered by the Town).) 25 the plain language of Article VI, section 70-187(2) already provided or was intended
to provide the right of verification. (A13; A1s.) Rather, they simply asserted that it would be reasonable for them to verify Lunn's certification under the facts. (See, e.g., A13:17,
24-26, 29, 32-33; Als:12, 15, 18,23,25,32.) Thus, given the plain language of Article VI, section 70-187(2), the BOA should have reversed Administrator Thrasher's erroneous conclusion
that a variance was required and concluded that O'Hare was permitted to install a type of metal roof the Town determined to be appropriate to the structure and the neighborhood. (A
7.) Therefore, a writ of certiorari should issue to quash the Order in this case. Contrary to the Town's assertion below, Article V, section 70-99(3) of the Code does not dictate a
different result. Article V, section 70-99(3) is the general metal-roof prohibition that applies to the Town as a whole. (A8.) Article V, section 70-99(3) clearly states that metal
roofs are generally prohibited. (A8.) But Article V, section 70-99(3) is superseded by Article VI, section 70-187(2), which applies in the specific district in which O'Hare's residence
is located. (See A 7.) Article VI, section 70-186(b) specifically provides that "where the provisions of this article [Article VI] conflict with those in article V, the provisions of
this article shall prevail." (A7.) Moreover, Randolph, the Town's own counsel, expressly stated that metal roofs are not generally prohibited because the exception under section 70-187(2)
expressly allows them under certain circumstances. (A1S:29) 26
Therefore, the general prohibition against metal roofs contained in Article V, section 70-99(3) is not applicable where, as here, the building needs to be re-roofed and an engineer has
certified that the existing structure will not support a concrete tile roof otherwise preferred by the Code. (Compare A8 (§ 70-99(3» with A7 (§ 70-187(2). ) Even if the Code did not
expressly provide that the Article VI provision prevails over conflicting sections of Article V, the result would be the same under established Florida law. It is axiomatic that where
a general provision of a statute conflicts with a more specific provision in the statute, the specific provision governs the general one. See, e.g., Mendenhall v. State, 48 So. 3d 740,
748 (Fla. 2010) (concluding that a specific sentencing statute prevailed over the more general one); Psychiatric Institute ofDelray, Inc. v. Keel, 717 So. 2d 1042, 1043 (Fla. 4th DCA
1998) (concluding that specific provision of statute governed over general provision in same statute); Gallagher v. Smith, 517 So. 2d 744, 746 (Fla. 4th DCA 1987) (general venue statute
governed by specific venue statute). By giving effect to the general provision prohibiting metal roofs rather than the provision allowing metal roofs under the conditions set forth
in Article VI, section 70-187(2) ofthe Code, the circuit court violated clearly established law of statutory construction and failed to give effect to the plain language of the Code.
Therefore, the Order should be quashed. 27
r This is particularly true where, as here, the circuit court (and the BOA before it) interpreted Article VI, section 70-187 of the Code to permit the Town to require the homeowner to
permit the Town's engineer to inspect the premises and to agree or disagree with the engineer's certification provided by the homeowner. This interpretation imposes an additional condition
on the metal-roof exception that was not provided by the Code itself. Thus, this interpretation of the Code violates the long-standing principal that in interpreting a statute, a court
is not permitted to add words that were not put there by the legislative body. Agee v. Brown, 73 So. 3d 882, 885 (Fla. 4th DCA 2011) ("It is a well-established tenet of statutory construction
that courts are not at liberty to add words to the statute that were not placed there by the Legislature.") (quoting Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 512 (Fla. 2008)
(citation and internal quotation marks omitted) (other citations omitted»; see also Boulis v. Blackburn, 16 So. 3d 186, 189 (Fla. 4th DCA 2009) (rejecting an appellant's interpretation
of a statute because that interpretation "adds an exclusion to this statute that the statute does not provide."). Indeed, the plain language of the Code does not grant the Town the
right to verify the certification of a licensed engineer submitted by the homeowner who wishes to re-roof his residence with a metal roof because the existing structure will not support
a tile one. Given that this is a design element of the Code that also implicates the structural integrity ofthe building, it is only reasonable for the Town 28
f to accept the engineer's certification provided by the homeowner - that is unless the Town will accept liability or otherwise insure the property in the event the Town's engineer requires
a concrete tile roof that later fails and thereby injures someone or otherwise damages the homeowner's property.6 By interpreting the Code to authorize the Town's engineer to inspect
the property so as to agree or disagree with the provided certification as a condition of allowing a homeowner to re-roof its residence in metal rather than concrete tile under the
exception, the circuit court added a condition to the Code that was not put there by the Town itself. Had the Town wanted to impose such a pre-condition to approval of a metal roof
in the face of an engineer's certification, it could certainly have done so - as it has subsequently done with the Metal-Roof Amendment. (A16; A17.) But, because the Town did not include
such a requirement in the Code, the circuit court was not at liberty to create one out of whole cloth. Such a result violated clearly established Florida law. See Agee, 73 So. 3d at
885; Boulis, 16 So. 3d at 189. This case is directly analogous to Woodley v. Dep't of Health and Rehab. Servs., Dist. 3, Lake County AFDC, 505 So. 2d 676 (Fla. 1st DCA 1987), which
was cited by this Court in Las Olas Tower Co., 742 So. 2d at 312. In Woodley, 6 Indeed, there is some doubt that a homeowner would be able to obtain property insurance to insure the
home in the event the homeowner installs a concrete tile roof despite the certification by a licensed, professional engineer that the existing roof framing will not support a concrete
tile roof. t ! 29 i I I \
Ms. Woodley appealed from a final order of the Office of Public Assistance Hearings, Department of Health and Rehabilitative Services (the "Department"), which upheld the denial of her
application for Aid to Families with Dependent Children ("AFDC") benefits. Id. at 677. The First District Court of Appeal reversed. Id. After Woodley applied for AFDC benefits, she
participated in an initial interview with a Department representative. Id. During that interview, the representative asked Woodley to provide verification, by a certain date, that she
had applied for workers' compensation benefits. Id. at 677. Woodley repeatedly requested this verification from her employer, but her employer did not respond. Id. The day after Woodley's
production deadline expired, the Department issued a Notice of Abandonment, which gave Woodley an additional fifteen days to provide the requested information. Id. at 677. On that same
date, Woodley advised the Department's representative that she had been unable to obtain the necessary verification from her employer. Id. The representative advised her to try again.
Id. Woodley diligently reported back to the representative on various dates advising the Department that she was still trying to get verification. Id. The Department's representative
advised her to request an extension of time if she could not obtain the verification by the latest deadline. Id. When Woodley did not 30
provide the requested infonnation or request an extension by that deadline, the
Department denied her application for AFDC benefits. Id. at 677. Consequently, Woodley requested an administrative hearing. Id. At the hearing, Woodley contended that the Department's
representative should have - and in fact was required to submit a policy-exception request seeking an extension of the Department's time standard for acting on AFDC applications. Id.
The hearing officer rejected Woodley's contention and concluded that the Department properly denied the application because a workers' compensation verification was necessary under
the Florida Administrative Code and because Woodley failed to request an extension of time. Id. at 677-78. Indeed, the Department's representative and her supervisor had testified that
a policy exception is only submitted if the applicant first requests an extension of time. Id. at 678. On appeal, the First District noted that an agency's interpretation of its own
rule is generally entitled to great weight, but that deference to the agency's interpretation is not required where the agency's construction clearly contradicts the unambiguous language
of the rule. Id. at 678 (citing Kearse v. Dep't ofHealth and Rehab. Servs., 474 So. 2d 819 (Fla. 1st DCA 1985)). In that case, the construction is clearly erroneous and cannot stand.
Id. 31
After a review of the plain language of the rule, the court concluded that the
rule unequivocally required the Department to request a policy exception under the circumstances presented by Woodley's case. [d. Therefore, the court concluded that the Department's
interpretation of the rule - that a policy exception need only be requested after an applicant requests an extension of time - did not comport with the plain language of the rule. [d.
Rather, the plain language of the rule simply did not require Woodley to request an extension before the Department was obligated to seek a policy exception on her behalf. As a result,
the court reversed the denial of AFDC benefits and remanded for further proceedings. [d. Under the reasoning set forth in Woodley, this Court should conclude that the Town's interpretation
of the Code as adopted by the circuit court does not comport with the plain language of Article VI, section 70-187(2). Under the plain language of Article VI, section 70-187(2), once
the homeowner establishes that he or she is re-roofing the building and produces an engineer's certification that the roof framing will not support cement tile, the Town is required
to advise the homeowner as to the type of metal roof that will be allowed as is appropriate in that neighborhood. (A7.) Indeed, no other suitable and light roofing material is allowed
under the Code. (A7; A8.) Clearly, a homeowner is entitled to a roof of some kind that will not negatively impact the structural integrity of the building. Consequently, Commissioner
Devitt's claim that Article VI, section 70-187(2) was 32
intended to apply only to homes with pre-existing shingle or shake roofs is of no
consequence. The exception expressly, by its plain language, applies to any home that is being re-roofed and that is certified by a professional engineer to be incapable of supporting
a concrete tile roof. Therefore, just as Woodley was not required to request an extension before the Department was obligated to request a policy exception, the Town was not authorized
to condition exception under Article VI, section 70-187(2) upon the Town's engineer's agreement with Lunn's certification or the agreement of a third engineer selected by Lunn and the
Town's engineer. Rather, once O'Hare established that he was re-roofing his residence and produced Lunn's certification as required by Article VI, section 70-187(2) of the Code, the
Town was required to permit O'Hare to install a metal roof suitable to the home and neighborhood. (A7.) Consequently, just as in Woodley, because the Town imposed a condition not required
by the plain language of the Code, this Court should quash the Order under review. 33
CONCLUSION
Because the Order violates several clearly established principals of Florida law and results in a miscarriage ofjustice in that O'Hare may be required to install a roof on his property
that the existing roof framing cannot support, the Order should be quashed and the case remanded with instructions for the circuit court to quash the BOA's decision affirming Administrator
Thrasher's denial of O'Hare's Revision Request and to require the Town to advise O'Hare as to the type of metal roof that would be appropriate for the building and the neighborhood.
/'<//? /£v JOHN E. CARTER Florida Bar No. 460036 Florida Bar No. 797390 CARTER LAW FIRM, LLC TYLER K. PITCHFORD 102 NE 2nd Street, Suite 179 Florida Bar No. 54679 Boca Raton, Florida
33432 BRANNOCK & HUMPHRIES Tel: (561) 368-9900 100 South Ashley Drive, Suite 1130 Fax: (561) 368-8499 Tampa, Florida 33602 Tel: (813) 223-4300 LOUIS L. ROEDER, III Fax: (813) 262-0604
Florida Bar No. 0004316 7414 Sparkling Lake Road Orlando, Florida 32819 Attorneys for Petitioner Tel: (407) 352-4194 Fax: (407) 352-8565 34
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by email toJohnC.Randolph(jrandolph@jonesfoster.com) and Stephanie Eassa Rapp (srapp@jonesfoster.co
m) Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 334023475 on this ;;;J day of Apri120 13. T Florida Bar No. 797390
CERTIFICATE OF FONT COMPLIANCE I certify that the size and style oftype used in this petition is 14-point Times New Roman, in compliance with Fla. R. App. 9.100(1). db~~~ TRACY S. CARLIN
Florida Bar No. 797390 35
.PDF
1FV590~1.PDF
1FV5908-petition amended writ certiorari.PDF
application/pdf
FD615140EC486342A1802B38BA027A3E@gulf-stream.org
EnUs
1FV5894-appendix amended.PDF
IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CHRISTOPHER F. O'HARE, Petitioner, Case No.: 4D13-621 vs. L.T. No.: 2012-CA-OII07 TOWN OF GULF STREAM, Respondent. ON APPEAL
FROM THE CIRCUIT COURT OF FIFTEENTH JUDICIAL
CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
PETITIONER'S AMENDED APPENDIX
JOHN E. CARTER Florida Bar No. 460036 CARTER LAW FIRM, LLC 102 NE 2nd Street, Suite 179 Boca Raton, Florida 33432 Tel: (561) 368-9900 Fax: (561) 368-8499 LOUIS L. ROEDER, III Florida
Bar No. 0004316 7414 Sparkling Lake Road Orlando, Florida 32819 Tel: (407) 352-4194 Fax: (407) 352-8565 TRACY S. CARLIN Florida Bar No. 797390 TYLER K. PITCHFORD Florida Bar No. 54679
BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida 33602 Tel: (813) 223-4300 Fax: (813) 262-0604 Attorneys for Petitioner 1
PETITIONER'S AMENDED APPENDIX
TAB DOCUMENT 1. RooflRe-Roof Pennit Application 2. Minutes of the Regular Meeting and Public Hearing Held by Town Commission ofthe Town ofGulf Stream 3. Minutes ofthe Regular Meeting
and Public Hearing Held by Town Commission ofthe Town ofGulfStream 4. City ofDelray Beach Revision Request 5. Letter from Terrance Lunn to Christopher O'Hare 6. Letter from William
Thrasher to Roeder 7. Gulf Stream Code Article VI., Sections 70-186 & 70-187 8. Gulf Stream Code Article V, Section 70-99 9. Letter from Rita Taylor to Christopher O'Hare 10. Amended
Petition for Writ ofCertiorari 11. Response to Amended Petition for Certiorari 12. Opinion 13. Transcript ofBoard ofAdjustment Meeting 14. Response to Mr. Thrasher's Required Variance
15. Transcript ofBoard ofAdjustment Meeting 16. Ordinance No. 12/4 as Executed by the Town Commission ofthe Town ofGulf Stream 17. Proposed Ordinance No. 12/4 DATE 8129/2011 4/13/2012
5/1112012 11115/2011 12/14/2011 316/2012 5/30/2012 611812012 1018/2012 112812012 4113/2012 4/13/2012 5/1112012 7/13/2012 2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
sent by email toJohnC.Randolph(jrandolph@jonesfoster.com) and Stephanie
Eassa Rapp (srapp@jonesfoster.com) Jones, Foster, Johnston & Stubbs, P.A., 505
South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 334023475 on this JI day of April 2013. JOHN E. CARTER
Florida Bar No. 460036
iohn@carterlawfirm.us
CARTER LA W FIRM, LLC
102 NE 2nd Street, Suite 179
Boca Raton, Florida 33432
Tel: (561) 368-9900
Fax: (561) 368-8499
LOUIS L. ROEDER, III
Florida Bar No. 0004316
lou@louroeder.com
7414 Sparkling Lake Road
Orlando, Florida 32819
Tel: (407) 352-4194
Fax: (407) 352-8565
TRACY S. CARLIN Florida Bar No. 797390
tcarlin@bhappeals.com
TYLER K. PITCHFORD
Florida Bar No. 54679
tpitchford@bhappeals.com
BRANNOCK & HUMPHRIES
100 South Ashley Drive, Suite 1130
Tampa, Florida 33602
Tel: (813) 223-4300
Fax: (813)262-0604
Secondary Email:
eservice@bhappeals.com
Attorneys for Petitioner 3
Tab 1 Tab 2 Tab 3 Tab 4 PLAN REVIEV ER: DATE: TOTAL FEES DUE: $ Rvsd 6/10 ^ ^ : 1 v' eu I I i n: UZ FAA o t 4 i7 L11 f1h;i.^tAt BCH CO tH l Ml'- H&; 001 /001 •r 6^ )1('slJ O(1 IAC
^., --^ -NOV 15 2011- iijr CITY OF DRAYBEACH REVISION REQUEST Date: Address Where Work is Being Done (to include unit or bay n umber): Permit Number: + -' ^' T r. 1Z{a ^(11U5 ii^^^
t 'v C1^7 r SS ) APPLICANT NAME: OO`t' [ £2 Phone: ( } •O 7 o r Fax, ( ) r} p 3 U Contact Person: Cell Phone #. ( ) ADDED CONSTRUCTION COST FOR THIS CHANGE: S-2(^ d a EXPLAIN REVISION:
0/u.n}M V_11 ! S ) as OL r _,4.1 ! )nf. NOTE: To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the job site plans. I understand
a fee may be charged in accordance with the City of Delray Beach L_DR 2.4-21 The fee for a revision is $75.00 for the first sheet, and $1.00 for each additional revised sheet. For ADDED
CONSTRUCTION COST, the fee will be based on the Building Permit Fees. SIGNED f4\/\ ROUTING: PATH PJIPT APPROVED BYIDATE: OFFICE USE ONLY FEES: REVISION FEE: $ -ADDED VALUE PERMIT FEE:
$ OTHER FEES AS APPLICABLE: Parks 5 Public B}dgs $ Schools $ Roa $ Radon $ DPR $ Other S Tab 5 Tab 6 Tab 7 ARTICLE VI. DISTRICT STANDARDS Sec. 70-186. Generally. (a) The district
standards, which are outlined in section 70-187, are based on the individual characteristics of the five single-family zoning districts discussed earlier in this chapter. The objective
is to maintain and protect the existing distinctive character of each of the districts. As a result, sometimes even relatively subtle differences in design direction have been provided
for in the standards. (b) These district standards are intended to be used in conjunction with areawide standards. Because many of the concepts are discussed and illustrated in article
V, reference should be made to article V for a better understanding of a standard's intent. However, where the provisions of this article conflict with those in article V, the provisions
of this article shall prevail. (c) Finally, it should be noted that these standards are the result of all of the issues discussed earlier in this chapter and clarification of intent
may in fact be found in articles I and II. These standards are intended to allow a reasonable amount of individual design flexibility while keeping the interests of each neighborhood
or zoning district in mind. Sec. 70-187. Table of district standards. Zoning Districts Gulf Stream Core Ocean West Beachfront North/South Place au Soleil 1. ARCHITECTURAL STYLE Preferred
Gulf StreamBermuda Anglo Caribbean British Colonial Colonial West Indies Georgian Med. Revival Gulf StreamBermuda Anglo Caribbean British Colonial Colonial West Indies Georgian Med.
Revival Med. Revival Gulf StreamBermuda Anglo Caribbean British Colonial Colonial West Indies Georgian Gulf StreamBermuda Anglo Caribbean British Colonial Colonial West Indies Georgian
Med. Revival Gulf StreamBermuda Anglo Caribbean British Colonial Colonial West Indies Georgian Med. Revival Discouraged Monterrey Non-descript, which is to be defined as not having
an apparent architectural style including but not limited to vernacular. Prohibited A-Frame, Geodesic domes, Art Deco, Contemporary, Cracker Other theme architecture not characteristic
of South Florida or Gulf Stream 2. ROOFS (not applicable to decorative elements or roof features such as chimney caps, cupolas and dormers) Required 90% of visible roof must maintain
a minimum slope of 10% True to architectural style Preferred Low pitched hip White tile If two-story: dormers and stepbacks Low to medium pitched hip or hipgable combinations White
tile Low to medium pitched hip or hipgable combinations White tile for Gulf Stream-Bermuda Red barrel tile for Med. Revival True to architectural style Low pitched hip White tile for
Gulf Stream-Bermuda Red barrel tile for Med. Revival Discouraged Front gable Front gable Barrel tile Pan tile Front gable Styles which incorporate very low or steep slopes S-tile and
roll tile Front gable § 70-187GULF STREAM DESIGN MANUAL CD70:77Supp. No. 1 Zoning Districts Gulf Stream Core Ocean West Beachfront North/South Place au Soleil Prohibited Steep roofs
(over 45°) S-tile and Roll tile S-tile and Roll tile S-tile and Roll tile Mansard Non-earthtone colors (except white) Bright, un-naturalistic looking roof material Metal roofs1 Primary
color tiles/shingles Gambrel Flat (over 10% visible) All white tile other than flat cement tile 1Certain metal roofs determined by the town to be appropriate to the structure and to
the neighborhood may be approved only in instances of re-roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof.
Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. 3. BUILDING HEIGHT Required Under 30 feet Under 30 feet Under 35 feet Under
30 feet Under 30 feet Preferred One-story One- or two- stories One- or two- stories One- or two- stories One-story Discouraged One-story ceiling height over 15 feet One-story ceiling
height over 15 feet One-story ceiling height over 15 feet Prohibited Abrupt grade change between house and yard ("pedestal house" appearance) 4. WALLS (applicable to all walls located
between the street and the minor accessory setback line. The measurement of all walls referenced herein shall be from the lowest grade adjacent to the wall.) Required 4—6 feet walls
must be screened from A1A by landscaping Any walls or fences along A1A must be screened by landscaping Walls must be finished on both sides Preferred None Low wall/fence combination
Low wall/hedge combination Correspond to architecture Intermittent or concealed by plant material Correspond to architecture Intermittent or concealed by plant material Correspond to
architecture Accent only Correspond to architecture Not to exceed more than 75% of frontage None Low wall/fence combination Low wall/hedge combination Correspond to architecture Simple,
uncluttered, traditional forms Discouraged Use as perimeter wall Entry or accent wall Excessive ornamentation including reveals, decorative tile, banding, etc. Prohibited Walls over
4 feet Perimeter walls Entry piers over 5 feet Walls and entry piers over 6 feet measured from the lowest grade adjacent to the wall Walls less than 12 feet from A1A r.o.w. line Walls
and entry piers over 8 feet measured from the lowest grade adjacent to the wall Walls and entry piers over 6 feet measured from the lowest grade adjacent to the wall Walls over 4 feet
Perimeter walls Entry piers over 5 feet Unfinished concrete block (painted block is not considered "finished") Open bond "web" Solid continuous exposed walls Walls closer than 7.5 feet
to the edge of street pavement Walls on rights-of-way or in visibility triangle 5. ENTRANCE GATES Required None § 70-187 GULF STREAM CODE CD70:78Supp. No. 1 Zoning Districts Gulf Stream
Core Ocean West Beachfront North/South Place au Soleil Preferred Discrete or hidden Corresponding to architectural style Corresponding to architectural style Discrete or hidden Corresponding
to architectural style None Discouraged All All All Prohibited All Primary color Over 6 feet Solid Primary color Over 8 feet Over 6 feet Solid Over 6 feet Solid 6. FENCES (applicable
to all fences located between the street and the minor accessory setback line. The measurement of all fences referenced herein shall be from the lowest grade adjacent to the wall.)
Required Fences must be screened from view from A1A by landscaping Fences must be screened from view from any public or private roadway by landscaping Pools 4 feet minimum Fences must
be finished on both sides or screened Consistent with architectural style of house Preferred Low-open wood Low-open Intermittent or concealed by plant material Consistent with architectural
style Consistent with architectural style Intermittent or concealed by plant material None Low-open wood Discouraged PVC, plastic or vinyl Solid (for example, stockade or shadowbox)
Unpainted PVC, plastic or vinyl PVC, plastic or vinyl PVC, plastic or vinyl Solid (for example, stockade or shadowbox) PVC, plastic or vinyl Fronting property Solid (for example, stockade
or shadowbox) Unpainted Prohibited Over 4 feet Over 6 feet Fences less than 12 feet from A1A r.o.w. line Over 8 feet Over 6 feet Over 4 feet Chainlink (unless concealed by plant material)
Fences closer than 7.5 feet to the edge of street pavement Fences on rights-of-way or in visibility triangle 7. WALLS AND FENCES: ALONG SIDE AND REAR PROPERTY LINES AND LOCATIONS NOT
VISIBLE FROM STREET (Outside of front setback area. The measurement of all walls and fences referenced herein shall be from the lowest grade adjacent to the wall.) Required Pools—4
feet minimum Walls must be finished on both sides Fences must be two-sided or screened Preferred Consistent with architectural style Discouraged Walls or fences over 6 feet Walls or
fences over 6 feet Walls or fences over 6 feet Prohibited Chainlink (unless concealed by plant material) Any wall or fence over 8 feet, as measured from the lowest grade adjacent to
the wall Walls and fences over 4 feet located between minor accessory setback line and waters connected to the Intracoastal Waterway or the 1978 CCCL Solid continuous exposed walls
8. DRIVEWAYS Required Sufficient to provide two off-street parking spaces. § 70-187GULF STREAM DESIGN MANUAL CD70:79Supp. No. 1 Zoning Districts Gulf Stream Core Ocean West Beachfront
North/South Place au Soleil Preferred Pervious material for example: Chattahoochee stone Pavers Not to exceed 50% of front yard Circular drives with island plantings Pervious material
for example: Chattahoochee stone Pavers Pervious material for example: Chattahoochee stone Pavers Pervious material for example: Chattahoochee stone Pavers Pervious material or textured
monolithic surface for example: Chattahoochee stone Pavers Textured concrete Discouraged Asphalt Impervious driveway surfaces Untextured monolithic surfaces Impervious driveway surfaces
Asphalt Impervious driveway surfaces Prohibited Painted driveways Primary colors Exposed earth Tire strips 9. FRONT YARDS Required Compliance with the North Ocean Overlay District requirements
Preferred Screen from street by 5 feet to 8 feet hedge or by low fence (4 feet or under) Large spacious turf or low planted area, concealed by perimeter plantings Dense natives Scattered
canopy trees Screened from street by walls/ plantings/ gates Naturalistic plantings Informal Layered lush/exotics Open, naturalistic plantings Informal groupings Lush/exotics Open large
turf or planted area Scattered canopy trees Foundation plantings Discouraged Open yards Wide open view from street Wide open view from street Tall hedges Prohibited Hardscape over 60%
of front yard Hardscape over 20% of front yard Hardscape over 20% of frontyard Hardscape over 60% of front yard Hardscape over 40% of front yard (Ord. No. 00-1, §§ 26, 51, 3-10-00;
Ord. No. 03-3, § 1, 5-9-03; Ord. No. 03-9, §§ 3—6, 10-10-03; Ord. No. 008-5, § 4, 9-5-08) Secs. 70-188—70-205. Reserved. § 70-187 GULF STREAM CODE CD70:80Supp. No. 1 Tab 8 Sec. 70-99.
Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style
and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring
sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing,
vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 28°
or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 21/2 feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) § 70-98 GULF STREAM
CODE CD70:44 Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S"-shaped tile in some districts Shed
roofs Steep slopes (over 45° or 1:1 slope) Very low pitched roofs (less than 18° or 5:12 slope) (3) Prohibited. Asphalt shingles except on existing polo cottages and homes with existing
asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel
roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs § 70-99GULF STREAM
DESIGN MANUAL CD70:45OC, Corr. Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example:
blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S-Tile in all districts except Place Au
Soleil Solar panels on the streetside Unnecessarily complex or monolithic roof design All white tile other than flat cement tile (Ord. No. 00-1, § 36, 3-10-00; Ord. No. 03-9, § 2, 10-10-03)
Sec. 70-100. Roof and eave heights. (a) Generally. (1) The height and number of eave lines and the overall height of a structure play an important role in establishing visual continuity
with other structures on the street and maintaining an appropriate residential/human scale. Most structures in the town are characterized by simple roof designs with low to medium eave
heights and roof heights. This type of design emphasizes the horizontal dimension of the structure while minimizing the vertical dimension. (2) Roof height is measured from the top
of the first finished floor to the highest exterior point on the roof. Eave height is measured from the top of the first finished floor to the top of the roof beam at the end of the
beam (top of flashing). Different eave heights establish different eave lines. Two or more separate roof areas with the same eave height are considered to have the same eave line. (3)
Roof features can provide appropriate design articulation to a roof area, but should be used sparingly to avoid unnecessary and undesirable complexity. Roof features include, but are
not limited to, chimneys, cupolas, decorative towers, dormers, and small cut-outs and extensions. Two or more dormers are considered to be one roof feature, as are two or more chimneys.
(4) Entry features, if used, should provide a sense of arrival to visitors, yet should not overpower them or the remainder of the structure. The scale and proportion of entry features
should be consistent with the rest of the structure, varying just enough to provide a focal point to the front of the house. (b) One story homes. (1) Preferred. Eave heights: From eight
feet to ten feet six inches (from eight feet to 12 feet for entry features) Eave lines: Three or less Roof features: Three or less visible per building side Roof heights: 20 feet or
less (24 feet or less for roof features) (2) Discouraged. Eave heights: Between ten feet six inches and 12 feet (between 12 and 14 feet for entry features) Eave lines: Four Roof features:
Four visible per building side Roof heights: Between 20 and 24 feet (between 24 and 28 feet for roof features) § 70-99 GULF STREAM CODE CD70:46OC, Corr. Tab 9 Tab 10 Tab 11 IN THE
CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR PALM BEACH COUNTY APPELLATE DIVISION (CIVIL) CASE NO.: 5020 12CAO 11 078XXXXMB DIVISION: AY CHRISTOPHER O'HARE,
Petitioner, v. TOWN OF GULF STREAM, Respondent. ----------------------~/ RESPONSE TO AMENDED PETITION FOR CERTIORARI Respondent, TOWN OF GULF STREAM (the "Town"), responds to the amended
petition for writ of certiorari filed by petitioner, CHRISTOPHER O'HARE ("Mr. O'Hare"), as directed by the order to show cause this Court issued on September 10, 2012. The amended petition
should be denied for the following reasons:1 1 The following symbols are used: (A-_)= the appendix attached to Mr. O'Hare's amended petition for writ of certiorari; (AA-_) =the appendix
to this response. All emphasis is supplied unless otherwise indicated. 1 I. JURISDICTION This Court has certiorari jurisdiction to review the Town's decision that Mr. O'Hare may not
install a metal roof on his home until a variance to permit such material has been applied for and approved. See Broward Countv v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 843 (Fla. 2001)
(explaining that circuit courts have certiorari jurisdiction to review quasi-judicial actions of local government agencies); Fla. R. App. P. 9.030(c)(3). On certiorari review, this
Court cannot reweigh the evidence. Id. at 846. Rather, the Court is limited to determining: (1) whether the Town accorded procedural due process; (2) whether the Town observed the essential
requirements of the law; and (3) whether competent substantial evidence supports the Town's administrative findings and judgment. See, e.g., Broward Countv, 787 So. 2d at 843; Haines
Citv Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Mr. O'Hare failed to establish any of these requirements for this Court to issue a writ of certiorari. I. STATEMENT OF THE
CASE AND FACTS Mr. O'Hare owns residential real property located at 2520 Avenue Au Solei!, Gulf Stream, Florida 33483 (the "Property) (A-3). This case concerns Mr. O'Hare's request
to replace the existing roof on the Property with a metal roof. The Town of Gulf Stream Municipal Code of Ordinances (the "Code") generally 2 prohibits metal roofs, but provides that
"certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re-roofmg of existing structures based upon
an engineer's certification that the existing structure will not support a tile roof' (A-2). There has been a concrete tile roof on the Property for forty (40) years (A-6:6, 7, 8).
The Property was built in 1972 with a concrete roof, it was re-roofed in 1999 with similar concrete material, and it has been able to support a concrete roof to date (A-6:5). On August
29, 2011, Mr. O'Hare submitted a re-roof permit application ("Permit Application") to the City of Delray Beach requesting a permit for a flat, white, concrete tile roof(A-1). The Permit
Application was approved on the same day (A-1). At some point between August 29, 2011 and November 15, 2011, Mr. O'Hare decided he wanted a metal roof instead of a concrete tile roof.
On November 15, 2011, Mr. O'Hare's re-roofing contractor, Rooftec Corporation, submitted a revision request to the Permit Application which states, "Customer wants to change to metal
roof' (AA-1). Approximately one month after Mr. O'Hare submitted the revision to the Permit Application, he retained Terrence E. Lunn, an engineer, to inspect the 3 Property and provide
a certification that the Property could not support a concrete tile roof (Am. Pet. at 5). On December 14, 2011, Mr. Lunn executed a letter stating, "I certifY to the best of my knowledge,
belief, and professional judgment that the referenced roof framing will not support a tile roof' (A-3). The letter also states, "Ifl can be of further service please call." (!.d.) On
February 21, 2012, Mr. O'Hare provided William Thrasher, the Town Manager ("Mr. Thrasher"), with a copy of Mr. Lunn's certification (Am. Pet. at 5). On March 6, 2012, Mr. Thrasher,
acting as administrator, issued an administrative decision informing Mr. O'Hare that in order to receive approval to install a metal roof, he would have to obtain a variance as provided
in the Town's Land Use Code. (Id.) On March 31, 2012, Mr. O'Hare appealed this administrative decision to the Board of Adjustment (the "Board") (A-5). The Town gave notice to Mr. O'Hare
that a public hearing on the appeal would take place on April 13, 2012 (AA-2). The Town commenced the public hearing on April 13, 2012 which was continued on May 11, 2012 (Am. Pet.
at 6). The Town sent Mr. O'Hare and his counsel copies ofthe Agenda in advance of each hearing (AA-3; AA-4). The Town took steps to verifY the engineer's report, but Mr. O'Hare refused
to provide backup for Mr. Lunn's certification and did not allow the Town to 4 inspect the Property. Specifically, at the April 13, 2012 hearing, the Town Clerk testified that she requested
three dates and times that Mr. O'Hare would permit the Town's engineer to enter his Property to conduct an independent inspection (A6:6). She also requested backup information to support
Mr. Lunn's certification. (Id.) Mr. O'Hare refused both requests. (Id.) Counsel for Mr. O'Hare acknowledged at the hearing that it is possible to get a variety of interpretations from
engineers regarding the ability of a structure to support a particular type of roof (A-6:8). At the April 13, 2012 hearing, a motion was made that if Mr. O'Hare allowed the Town's engineer
to inspect the Property and there was a conflict between the certifications of Mr. Lunn and the Town's engineer, then the two engineers would select a third engineer for a resolution
(A-6:9; A-7:2). Again, Mr. O'Hare's counsel communicated that Mr. O'Hare would not allow another engineer to inspect the Property (A-7:2). The April 13, 2012 hearing was continued on
May 11, 2012 (A-7:2). Neither Mr. O'Hare nor Mr. Lunn were made available at the May 11, 2012 hearing (A-7:6). The Town was given no opportunity to question them regarding Mr. Lunn's
certification or to test the accuracy of the statements being made by 5 Mr. O'Hare's counsel on Mr. O'Hare's behalf (Id.). The Board orally denied Mr. O'Hare's appeal at the May 11,
2012 hearing (A-7:8). On May 20, 2012, the Board issued its Notice of Final Action denying Mr. O'Hare's appeal and sustaining "the opinion of the Building Official that a variance is
required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not allowed the Town to verity the engineering
report you submitted, with regard to the strength of the structure" (A-8). Mr. O'Hare filed a petition for certiorari seeking review and amended his petition to include an appendix.
II. ARGUMENT CERTIORARI MUST BE DENIED WHERE THE TOWN ACCORDED DUE PROCESS AND THE ESSENTIAL REQUIREMENTS OF LAW, AND ITS FINDING THAT MR. O'HARE DID NOT FALL WITHIN THE EXCEPTION TO
ALLOW A METAL ROOF IS SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE BECAUSE THE RECORD REFLECTS MR. O'HARE REFUSED THE TOWN AN OPPORTUNITY TO VERIFY HIS ENGINEER'S CERTIFICATION. This
Court has no jurisdiction to issue a writ of certiorari because the Town afforded Mr. O'Hare due process, observed the essential requirements of law, and its judgment that Mr. O'Hare
did not satisfY an exception in the Code to allow a metal roof because Mr. O'Hare refused the Town the opportunity to verity his 6 engineering certification was supported by competent,
substantial evidence. See, M_,, Broward County, 787 So. 2d at 843; Haines City, 658 So. 2d at 530. A. The Town Properly Exercised its Discretion in Finding Mr. O'Hare Did Not Fall within
the Exception to Allow Metal Roofs and Is Entitled to Deference. The Town's interpretation of its own ordinance is entitled to deference. See Donovan v. Okaloosa County, 82 So. 3d 801,
807 (Fla. 2012) (citing Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002) (stating that courts ordinarily defer to a governmental body's interpretation of a statute or rule
unless the interpretation conflicts with the plain and ordinary meaning of the provision); Colonade Medical Center, Inc. v. State Agency for Health Care Admin., 847 So. 2d 540, 542
(Fla. 4th DCA 2003) ("It is a well-established maxim that an agency's interpretation of its own rules and regulations is entitled to considerable deference."). Here, the plain language
of the ordinance supports the Town's exercise of its discretion to deny Mr. O'Hare's request to install a metal roof. The parties agree that the controlling ordinance is § 70-187(2)
ofthe Code (A-2). The Code generally prohibits metal roofs. However, footnote 1 of § 70187(2) contains the following language: Certain metal roofs determined by the town to be appropriate
to the structure and to the neighborhood may 7 be approved only in instances of re-roofing of existing structures based upon an engineer's certification that the existing structure
will not support a tile roof. The word "may" is crucial to the analysis of this case. A basic rule in constructing statutes or ordinances is that words are to be given their plain meaning.
Canal Ins. Co. v. Giesenschlag, 454 So. 2d 88, 89 (Fla. 2d DCA 1984). The plain meaning of the ordinance grants the Town discretion to approve or not approve a metal roof. The ordinance's
permissive language places the Town under no obligation to approve a metal roof, even if the homeowner provides an engineer's certification. And even in instances of approval, the Town
reserves the right to determine the type of metal roof to be installed by the homeowner. Here, Mr. O'Hare initially requested a permit for a concrete tile roof (A-1). Three months later,
Mr. O'Hare's contractor requested a change to the permit application, this time to apply for a metal roof (AA-1). Mr. O'Hare's engineer, Mr. Lunn, then provided a certification stating,
"I certifY to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof' (A-3). The subject Property has supported a
concrete tile rooffor forty (40) years (A-6:6, 7, 8). Given the Property's history of being supported by a concrete tile roof and the certification's language leaving room for a different
opinion, the Town decided 8 it wanted its engineer to inspect the Property before exercising its discretion in favor of allowing the metal roof (A-6:5, 6; A-7:6). If the opinion of
the Town's engineer conflicted with that of Mr. Lunn, the Town proposed that the two engineers could choose a third engineer for resolution (A-6:9; A-7:2). The Town also requested backup
for Mr. O'Hare's certification (A-6:6). Not only did Mr. O'Hare refuse to allow the Town's engineer to inspect the Property, he also refused to produce backup information for the certification
(Id.) No one disputes that Mr. O'Hare was given ample notice of the hearings. He voluntarily chose not to appear and testify at either hearing and decided not to produce his engineer
for questioning (A-7:6). The Town observed the essential requirements of the law in exercising its discretion within the plain meaning of its ordinance. Lastly, competent substantial
evidence supports the Town's denial of Mr. O'Hare's request because the only evidence Mr. O'Hare presented to the Town for its consideration of approval of a metal roof was a letter
from Mr. Lunn stating that to the best of his knowledge, belief, and professional judgment, the Property could not support a metal roof. Mr. O'Hare provided no supporting documentation
for the letter, failed to produce his engineer for questioning, and refused to allow the Town's engineer to inspect the Property. On the record, the Town Attorney verified Mr. O'Hare's
repeated refusals through questioning Mr. 9 O'Hare's counsel at the May 11, 2012 hearing (A-7:3-7). Under these circumstances, it was entirely reasonable for the Town to exercise its
discretion under§ 70-187(2) of the Code and deny Mr. O'Hare's request to install a metal roof. Assuming, arguendo, that Mr. O'Hare's interpretation of the ordinance is permissible (which
it is not), that is, the Town must accept Mr. Lunn's certification at face value and allow Mr. O'Hare to install a metal roof, the Court should still find in favor of the Town because
its interpretation is certainly permissible and reasonable. In State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 925 (Fla. 2d DCA 2001), the Florida appellate court examined a United
States Supreme Court decision which addressed a court's review of an agency's interpretation of a statute where more than one permissible interpretation existed. The court explained:
[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute
. . . The court need not conclude that the agency construction was the only one it permissively could have adopted to uphold the construction, or even the reading the court would have
reached if the question initially had arisen in a judicial proceeding. Sun Gardens Citrus, 780 So. 2d at 925 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844-45 (1984). Under Chevron, 10 once a court determines that the legislature has not directly addressed the issue, the only question is whether the agency's interpretation
of its own rule is a reasonable one. Id. "If an agency's interpretation of its own regulation is merely one of several reasonable alternatives, it must stand even though it may not
appear as reasonable as some other alternative." Id. The rules of construction used to interpret state statutes are also used to interpret local ordinances. Smith v. State, 75 So. 3d
800, 802 (Fla. 5th DCA 2011). Here, the ordinance's key word-"may"-justifies the Town's reasonable denial of Mr. O'Hare's request to install a metal roof under the circumstances. The
ordinance placed no obligation on the Town one way or the other to approve Mr. O'Hare's request for a metal roof. The Town should ensure that a metal roof is absolutely necessary because
metal roofs are generally prohibited by the Code. Indeed, Mr. O'Hare concedes "Gulf Stream's right to be biased against metal roofs" (Am. Pet. at 13). In his amended petition, Mr. O'Hare
argues that Woodley presents facts similar to the instant case (Am. Pet. at 9). However, Woodley is clearly distinguishable because the rule in Woodley imposed a mandatory obligation
on the Department of Health and Rehabilitative Services ("Department") to take an 11 action which it failed to take. By contrast, the instant ordinance imposes no mandatory obligations
on the Town. In the case Mr. O'Hare relies upon, Woodley applied for Aid to Families with Dependent Children ("AFDC") benefits. Woodley v. Dept. of Health and Rehab. Servs., 505 So.
2d 676, 677 (Fla. 1st DCA 1987). At an initial interview, Woodley was asked to provide verification that she had applied for workers' compensation benefits by a certain date. Id. Despite
multiple efforts to speak with her employer, the employer failed to provide this verification. Id. Woodley contacted the Department eligibility specialist on more than one occasion
to inform her that Woodley was unable to obtain verification from her employer. Id. The eligibility specialist told Woodley to keep trying and to request an extension of time if she
could not obtain the verification. Id. Woodley did not furnish the employer verification or request an extension of time, and the Department denied her application. Id. A Department
rule provided as follows: If documentation or verification is not provided within the time limits allowed, the assistance group must be determined ineligible for assistance. However,
if the employed person reports to the eligibility specialist prior to the deadline date that he/she is unable to secure required documentation or verification, a policy 12 exemption
request will be submitted to the District Economic Services Program offices for a decision. Id. at 678. The eligibility specialist never requested a policy exception. The Woodley court
explained that the rule "unequivocally requires" the eligibility specialist to request a policy exception under the circumstances presented. Id. Accordingly, it reversed the denial
of AFDC benefits. Id. Here, the ordinance provides that certain metal roofs "may" be approved by the Town. It is devoid of mandatory language. Therefore, Woodley is distinguishable,
and the Town properly exercised its discretion under the circumstances. Mr. O'Hare also contends that "questions of reliability and/or verification of the Certification were not issues
to be considered in the Appeal" (Am. Pet. at 10). This statement ignores the plain meaning of the ordinance granting the Town discretion to approve or not approve a metal roof-an exception
to the Town's general prohibition against metal roofs. Because the Town has discretion, it is entirely reasonable for the Town to verifY Mr. O'Hare's engineer certification, especially
given that the structure has supported a concrete tile roof for forty ( 40) years (A-6:6, 7, 8). In other words, the Town's reasonable request to verifY the certification emanates from
the discretion the ordinance grants it. The two go hand 13 in hand. It follows logically that the issue of verifying the certification was discussed at both hearings (A-6:5-9; A-7:2-8).
To say that verification of the certification was not an issue before the Board is simply incorrect. The Town accorded procedural due process to Mr. O'Hare at both hearings at which
he chose not to appear personally, but to send his counsel only, and not to produce his engineer. The Town observed the essential requirements of the law in exercising its judgment
and discretion within the plain, permissive meaning of the ordinance. The Town Attorney questioned Mr. O'Hare's counsel on the record and confirmed the following refusals by Mr. O'Hare:
(1) to produce backup information for his engineer's report; (2) to appear personally at the hearings; (3) to produce his engineer at the hearings; and (4) to allow the Town's engineer
to inspect the Property, with the Town's engineer and Mr. Lunn selecting a third engineer to inspect the Property and render an opinion for resolution in case of conflict. Therefore,
substantial, competent evidence supports the Town's exercise of its discretion in finding that Mr. O'Hare did not fall within the exception in footnote 1 of § 70-187(2) and requiring
him to apply for a variance to install a metal roof. This Court should deny certiorari. 14 III. CONCLUSION This Court should deny Mr. O'Hare's amended petition for writ of certiorari.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email and United States mail to JOHN E. CARTER, Esquire, 102 N.E. 2nd Street,
Suite 179, Boca Raton, Florida 33432-3908 Qohn@carterlawfirm.us); and to LOUIS ROEDER, Esquire, 7414 Sparkling Lake Road, Orlando, Florida 32819 (Iou@louroeder.com), this ~'-th day
of October, 2012. Jones, Foster, Johnston & Stubbs, P.A. Attorneys for Town of Gulf Stream 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, FL 33402-3475 Telephone:
(561) 659-3000 Facsimile: (561) 650-5300 ' c 0 1Jf;1) By;, ' ! (JJ)V4Y'(afP JOC:Randolph Florida Bar No. 129000 jrandolph@jonesfoster.com Stephanie Eassa Rapp Florida Bar No. 0060319
srapp@jonesfoster.com CERTIFICATE OF FONT Respondent's Response to Amended Petition for Writ of Certiorari has been typed using 14-point Times New Roman ~on~- • ,· C' (,fV A .••• By.
'-~Jl.1U/ dMl\~ p:\docs\1314 7100009\pld\1 ek23 77 .docx 15 Step arne Eassa Rapp Florida Bar No. 0060319 Document City of Delray Beach Revision Request Town of Gulf Stream's Notice
of Application for Appeal of Final Action of Planning and Building Administrator Transmission Report Confirmations of Agenda for April13, 2012 Hearing Sent to Mr. O'Hare and Attorney
Roeder Transmission Report Confirmations of Agenda for May 11, 2012 Continued Hearing Sent to Mr. O'Hare and Attorney Roeder TabAA 1 2 3 4 1 Date-: CITY OF D~iC~~t~EACH REVISION REQUEST
l ADDED CONSTRUCTION COST FOR THIS CHANGE: EXPl.~IN REVISION:. { ).(~J_ik!tfS io Ckcc{( C'\ii'_ l?J () $,,;ns-o JD l~tx:bf r-ooJ2. ---------------- ---------------·-···-- -~~NOTE: To
avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the job site plans, ROUTING: f'A'IH Q!<EL APPROVED BYLQATE: ---------.-----PLAN
REVIEWER: _______ _ DATE: _________ _ OFFICE USE ONLY FEE$: REVISION FEEl: $ ___________________ _ ADDED VALUE PERMIT fEE: OTHER FEES AS APP~ICABLE: Parks~ $:__ ___ _ Public Bldg•.
$ ____ _ Schools $ ___ _ R03d $ ________ _ R•don $-------OPR$ _________ _ Others _______ _ TO'fAL F"~S DUE: $ _______ _ Rvod 8110 2 561-737-0188 Line 1 10:00:24 a.m. 10-05-2012 NOTICE
OF APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING & BUILDING ADMINISTRATOR NOTICE IS HEREBY GIVEN that the Town Commission, sitting as the Board of Adjustment of the Town of Gulf
Stream, will hold a Public Hearing on Friday, April 13, 2012 at 9:00 A.M. in the Commission Chambers of the Town Hall, 100 Sea Road, Gulf Stream, Florida, at which the following will
be considered: An application submitted by Christopher F. O'Hare, owner of property located at 2520 Avenue Au Soleil, legally described as Lot 36 Place Au Soleil Subdivision, Gulf Stream,
Florida, for the following: APPEAL OF ADMINISTRATIVE DECISION to deny the installation of a metal roof until such time as a variance to permit such material has been applied for and
approved for the dwelling at the location stated herein. The Town Commission, sitting as the Board of Adjustment, shall make a final decision regarding the subject application at the
meeting noticed above. The meeting may be adjourned from time to time and place to place as may be necessary to hear all parties and evidence. The complete application materials are
on file in the Office of the Town Clerk located at 100 Sea Road, Gulf Stream, Florida 33483, and may be reviewed during regular business hours, which generally include non-holiday weekdays
from 9:00A.M. to 4:00P.M. ALL PARTIES INTERESTED IN THESE MATTERS may appear before the Town Commission of the Town of Gulf Stream at the time and place aforesaid and be heard. SHOULD
ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY THE TOWN COMMISSION, SITTING AS THE BOARD OF ADJUSTMENT, WITH RESPECT TO ANY MATTER CONSIDERED AT THE PUBLIC HEARING, SAID PARTY
WILL NEED A RECORD OF THE PROCEEDINGS, AND FOR SUCH PURPOSE, MAY NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON
WHICH THE APPEAL IS TO BE BASED. 286.0105, F.S.S. Dated: March 30, 2012 TOWN OF GULF STREAM, FLORIDA 2/6 3 Datelflme Locai!D 1 04-09-2012 561-737-0188 12:13:33p.m. Transmission Report
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REIF KING WELCH LEGAL SERVICES 1 TOWN OF GULF STREAM COMMISSION MEETING AND PUBLIC HEARING Gulf Stream, Florida
Friday, April 13, 2012 9:30 a.m. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 2 1 PRESENT: 2 3 Mayor William
F. Koch, Jr. 4 Vice Mayor Joan K. Orthwein 5 Commissioner Muriel J. Anderson 6 Commissioner Fred B. Devitt, III 7 Commissioner W. Garrett Dering 8 John Randolph, Esquire,
Town Attorney 9 Mr. William H. Thrasher, Town Manager 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 3
1 * * * * * 2 THE CLERK: We have the Mayor's proclamation. 3 We are going to make May the 25th, 2012 as National 4 Missing Children's Day
and the Mayor has executed 5 same. 6 MR. MAYOR: Item seven, what do we have? 7 THE CLERK: This is a public hearing. Like to 8 ask any of those who intend
to speak during this 9 public hearing portion to please stand and be sworn. 10 Swear to tell the truth, the whole truth, and 11 nothing but the truth so help you
God? 12 (Unidentified individuals sworn.) 13 THE CLERK: Okay. We have appeal final action 14 of planning and building administrator, an 15 application
submitted by Christopher O'Hare, owner 16 of the property located at 2520 Avenue Au Soleil, 17 legally described as Lot 36 Place Au Soleil 18 subdivision, Gulf Stream,
Florida, for the 19 following, appeal of administrative decision of a 20 metal roof until such time as a variance to permit 21 such material has been applied for and
approved for 22 the dwelling at the location stated herein. 23 Has there been any ex-parte communication on 24 this matter? Let the record show there was none. 25
Who is presenting? www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 4 1 MR. ROEDER: Good morning. My name is Lou 2 Roeder. I'm here
representing Mr. O'Hare. I didn't 3 know whether -- I probably need to ask for 4 clarification. I didn't know whether it was better 5 to follow Mr. Thrasher's presentation,
are you going 6 to have a presentation or should I present the 7 issue? 8 MR. THRASHER: Mr. Roeder, I have provided the 9 commission with my report. And I
think that they 10 are now ready to hear from you. They may have 11 questions of me after you have completed. 12 MR. RANDOLPH: Do you have his report, 13 Mr.
Roeder? 14 MR. ROEDER: Yes, I do. Good morning, 15 Mr. Mayor, Commissioners, Mr. Thrasher, 16 Mr. Randolph. Again, I'm here representing 17 Mr. O'Hare in
this matter. And we're here to appeal 18 the decision by the town manager, Mr. Thrasher, that 19 a variance is necessary. And I'd like to just 20 follow -21
MR. MAYOR: Can you speak in the microphone? 22 MR. ROEDER: I'd like to just -- if you have 23 his report in front of you, I also have a handout to 24 give you.
We have our field package, but then we 25 also received Monday, Mr. Thrasher's position on www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 5 1
this and what his reasoning was for requiring the 2 variance. And we have prepared a response I'd like 3 to just follow through with you in brief and if Rita 4 can hand
that out. 5 Now, I'm going to ask you jump around in my 6 presentation, so please bear with me and please, 7 not -- it took me days to get accustomed to the 8
variance code numbers. So if I go through these 9 here, I might be spitting them out rather fast. 10 If you have any problem with them, if there's 11 anything
confusing, I was confused for several days, 12 so please stop me and I'll try to clarify. Again, 13 we'd like to go and address Mr. Thrasher's argument 14 for a variance.
15 We break it down in three parts. We have those 16 listed there for you. The first part has to do with 17 him quoting 66.1, his definition of a variance. The
18 definition is that a variance shall mean a deviation 19 from the district requirements of this chapter. We 20 agree. The only problem is, we think he's wrong. 21
We don't think our request for a metal roof 22 deviates from the requirements of the chapter. So 23 now, in order for us to show you this, we'd like to 24 skip
to page three very quickly, because, the whole 25 part there in part three on page three, that's very www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
6 1 important. That's going to be referred to several 2 times here in my response. 3 Mr. Thrasher states that section 70-99(3) for 4 roof design, slopes and
materials, this is located 5 in Article 5. This is for town wide standards in 6 the manual. Article 5 is town wide standards. 7 Article 6 is district standards. That
means it's 8 very specific to each district. 9 In that section, there's a prohibition, that 10 states metal roofs are prohibited except unpainted 11 copper when
used as a decorative accent or minor 12 structures. Then he goes on to quote section 13 70-187(2). There again, that's in the district 14 standards, and it has prohibited
metal roofs, but 15 there's a footnote. That's very important here. We 16 need to note this. 17 There's a footnote there that says, certain 18 metal roofs
determined by the town to be appropriate 19 to the structure of the neighborhood may be approved 20 only in instances of reroofing of existing 21 structures based upon
engineer certification that an 22 existing structure will not support a tile roof. 23 Some clarifications in order here. To 24 paraphrase, 187(2) basically states
two conditions; 25 for us the client, and one for the town. For us it www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 7 1 has to be a reroofing
situation. Two, we need a 2 certification from an engineer. 3 On the town's part, the town needs to provide 4 us what metal roofs are then appropriate to the 5
structure and the neighborhood. We asked for that 6 back on November 15th. We asked the town, we were 7 told no metal roofs, period. We think it's clear 8 here
in 70-187(2) metal roofs are allowed under 9 certain conditions. 10 And we'd like to point out that if the town 11 hasn't figured out what metal roofs there are,
we 12 have provided what might be acceptable to you. We 13 have provided in the package to you what we consider 14 to be a sample of what we are proposing for a metal
15 roof. It happens to be by Englert. It's one of the 16 highest quality, highest gauge metal roofs around 17 for residential roofs. Don't think you'll find a 18
better quality, higher priced roof on the market. 19 Now I'd like you to go to part one again and 20 we'll continue. We wondered why -- you can see the 21 disparity
there. In one section, Article 5, it 22 says, no metal roofs. In Article 6, it says, metal 23 roofs under certain conditions. We were wondering 24 why somebody would
put that in there. Somebody in 25 their infinite wisdom chose to put this in there. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 8 1 There must
have been a reason. 2 We called Marty Minor, the senior project 3 planner with Urban Design Studios, the people who 4 put together your manual several years ago before
5 the city approved it. And we asked them 6 specifically, if we wanted to take part of this 7 section in order to put up a metal roof, would a 8 variance be required?
He said, no. In fact, he 9 specifically said, this is your out to a prohibition 10 of a metal roof. 11 Part 2, Mr. Thrasher also quotes section 12 70-4(c)(4)
where it talks about how to use a manual. 13 And in there it states, prohibitive items are design 14 elements that do not maintain the desired character 15 or quality
of the zoning district within which they 16 are located, and, that's my emphasis, are not 17 permitted under current codes and regulations. 18 Mr. Thrasher states
that no metal roofs on any 19 single-family homes in Gulf Stream, there are none 20 because they do not maintain the desired character 21 and quality of the zoning districts.
We can't find 22 anywhere in the manual where it states that. That's 23 an opinion, that's Mr. Thrasher's opinion. That's 24 not necessarily what the manual says.
25 In fact, probably don't even need to address www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 9 1 this, because that section does have, and
why I 2 emphasize the word and, not only does it have to not 3 maintain the desired character and quality of the 4 zoning district, but it also must be prohibited by
5 the code. 6 We maintain it's a clear reading of section 7 70-187(2) that metal roofs are allowed within the 8 code; therefore, they are not a prohibition.
9 Therefore, this section doesn't apply. 10 Even though there might not be any metal roofs 11 on any single family homes, there are no roofs on 12 several multifamily
residential condominium 13 buildings. In fact, right here across the street, 14 Polo Ridge, there are metal roofs. Just down the 15 way at 4400 Ocean Boulevard, there's
a two-story, 16 two exactly identical buildings, one with the 17 original concrete, white concrete tile and the other 18 one with a metal roof replacement. They're there
19 side by side so you can see how they look and how 20 they seem to be in conformity with one another. And 21 I doubt if any of the single family behind these two 22
properties would consider them to be detrimental to 23 their value. 24 Also, if you look into section 70-4, how to use 25 the manual, we'd like to quote, the
manual states www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 10 1 that the styles, which they identify as Gulfstream, 2 Bermuda and Mediterranean
Revival are not mandatory, 3 but are indicative of the predominant style within 4 the community. I think that's important. These 5 styles and what's talked about in
the manual is not 6 mandatory. There is basically a guide. 7 The real yardstick is in 70-187, excuse me, 8 70-187(2), when it states in the latter part of it, 9
the metal roof determined by the town to be 10 appropriate to the structure and the neighborhood, 11 which is something we tried to ask the town for back 12 on November
15th. We said, okay, we'd like a metal 13 roof, can you tell us what's appropriate. We were 14 told no metal roofs are allowed. If that's the 15 yardstick of what's
appropriate to the neighborhood, 16 we supplied you with some pictures. 17 If you look past page four, you have the styles 18 map of the districts within the town.
And we 19 circled there a place Au Soleil. And if you count 20 up the number of homes that are Bermuda, the number 21 that are Spanish-Mediterranean, the number of
what's 22 called various other styles, 70 percent are 23 undetermined, there are various other styles. 24 Turn to the next page, you see -- we decided to 25
map out what are the prohibited roofs within the www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 11 1 neighborhood. It specifically prohibited shingles
2 in Gulf Stream; specifically prohibited shakes, wood 3 shakes and also flat roofs. 4 Here we have a map showing all the residences 5 in that neighborhood.
There's four of them which 6 have shingles, three of them which have shakes and 7 three of them are flat. In fact, on the next page, 8 you can see shingles. We actually
took pictures of 9 the homes and put out their lot layouts and you have 10 under shingles, what's classified as A, that's right 11 across the street from Mr. O'Hare's
residence. 12 And we also provided you with a map just to 13 show you what his roof pitches are on his house. We 14 don't propose to change those. We just plan
to 15 replace it with a metal roof. Then Mr. Thrasher 16 goes on to talk -- this is important. He says that 17 even though the footnote could provide for a metal 18
roof, he admits that it could provide for a metal 19 roof, the variance would be acquired but still is 20 prohibited. 21 Again, our conversation with Mr. Minor,
we 22 asked if we wanted to partake in this provision, 23 would a variance be required. His answer was no. 24 This is the man who works for the firm that put 25
together your manual. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 12 1 Also, Mr. Thrasher took the position that 2 70-99(3), since it was
in the general section 3 applying to the whole town, that it was more 4 restrictive. And historically that seemed to 5 override the other district wide standards in
6 187(2). 7 Whenever there's a conflict, you always try to 8 look somewhere in the ordinance for a conflict 9 resolution. We found it. It was in the first
page 10 of Article 6. It said, where the provisions of this 11 article is -- excuse me, I don't have my glasses. 12 I'm trying to read. 13 Where the provisions
of this article conflict 14 with those of Article 5, the provisions of this 15 article shall prevail. I mean, it's not an option 16 there. There may be some historical
precedent, but 17 the ordinance is clear, the code is clear. When 18 there's a conflict between 70-99(3) and there's a 19 conflict between 70-187(2), 70-187(2) is going
to 20 prevail. 21 We think it's pretty clear a variance is not 22 required. We think we've shown pretty specific and 23 pretty overwhelming evidence of variances
that are 24 required. We're respectfully requesting that you 25 overrule Mr. Thrasher's decision of his March 6th www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH
LEGAL SERVICES 13 1 letter and allow us to proceed with a metal roof 2 permit. 3 Again, we provided samples for you, we're 4 bringing forth the highest quality
metal roof, 5 highest gauge, white -- not shiny white, white 6 flat -- so it goes with all the other roofs in the 7 neighborhood, which are apparently white roofs. 8
And we respectfully ask you approve my client's 9 request for a metal roof. 10 MR. RANDOLPH: May I -- before we go forward 11 with Mr. Thrasher, may I ask
Mr. Roeder a question? 12 MR. ROEDER: Sure. 13 MR. RANDOLPH: In response to your last 14 comment, can you direct me in the code to the 15 provision? I
know you said you didn't have your 16 glasses, but you did say it was important. I want 17 to be on the same page with you in regard to the 18 provision that says where
there's a conflict that 19 these provisions shall prevail over the conflict. I 20 think that's important. 21 MR. ROEDER: I thought it was in the package 22
that I gave the town in the application. I'm going 23 to see if it is because then each one of you would 24 have your own. It may not be. Yes, it is. 25 MR. RANDOLPH:
It's in your package? www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 14 1 MR. ROEDER: I gave everybody three or four 2 pages from Article
6, District Standards, the very 3 first page. 4 MR. RANDOLPH: Did you provide the pages in 5 your packet? 6 MS. ORTHWEIN: This one. 7 MR. RANDOLPH:
This one? 8 MR. ROEDER: District Standards, Section 9 70-186, paragraph B, it says introductory, 10 70-86 [sic] introductory paragraph into the article. 11
If you look at paragraph B, the very last sentence, 12 however, if the provisions of this article conflict 13 with those in Article 5, the provisions of this 14 article
shall prevail. It's black and white. 15 MR. RANDOLPH: Thank you. 16 MR. ROEDER: Any other questions? 17 MR. MAYOR: Bill, do you want to -18 MR.
THRASHER: I'll make some comments. My 19 report, I hope, will be considered in this. I know 20 that he represents multifamily roofs in our town. 21 And there are multifamily
residents or dwellings 22 that have metal roofs, but those were properties 23 that I believe he's referring to were recently 24 annexed in our codes and our town would
not speak to 25 that issue. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 15 1 In regards to the differential between 2 predominant styles
and other variants and that there 3 are shake and shingles, other types of materials, 4 the current code was adopted after the construction 5 of those homes. 6
And therefore, we would assume that when they 7 were constructed and the roofs were placed, that it 8 met the current code, but presently, when you come 9 to an entire
reroof or a new structure, the present 10 dated code would be the determining factor. 11 I think that, in regards to the differential 12 between area wide standards
and predominant styles, 13 there are sections in our code, area wide versus say 14 a Gulf Stream or a Mediterranean, but as the style 15 is determined, it has been always
our practice that 16 the homes and the work must be in alignment with, 17 not only the predominant style section of the code, 18 but also area wide. 19 We think
that area wide and predominant styles 20 are applicable in the appropriate instances to 21 exclude one or the other. It has not been our 22 practice. I mean, that's
not how we have 23 administered the code. 24 The conversations about whether or not the 25 exclusion of the asterisk automatically provides for www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 16 1 them the opportunity to have a -- the option to 2 immediately apply for a permit, I think is -- and is 3 still
listed under the prohibited section of the 4 code, and I do believe that prohibited items do 5 require a variance. 6 We do not have any single-family homes that 7
have metal roofs. I don't know about in Au Soleil, 8 but we do not have metal roofs in the area or any 9 other district town wide where the code prevails 10 excluding
the annexed area, there are no -- it might 11 include the annex there, there are no single-family 12 homes with a metal roof. To me that's an indication 13 to me that
it's also prohibited. 14 The ability to just apply for a permit for a 15 metal roof because there's an asterisk, there is a 16 slippery slope, and I don't think it's
appropriate 17 based on my interpretation of the code. 18 MR. ROEDER: If I might, excuse me, I didn't 19 know. 20 MR. THRASHER: I think that there is a
conflict 21 in the code. Staff has looked at it. We feel that 22 the two sections of the code, even though they may 23 be in a position in different pages of the code,
24 section 70-99 and 70-187, we believe that there is a 25 definite conflict. And so - www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 17 1
MR. MAYOR: The conflict in the code, I think 2 Mr. Randolph -- is there a conflict in the code? 3 MR. RANDOLPH: If I might just ask Bill a 4 question if he's
finished with his presentation and 5 that is, how do you respond, Bill, to the provisions 6 set forth in 70-186 which says, however, where the 7 provisions of this article
conflict with those in 8 Article 5, and Article 5 is the section that you 9 talk about that creates the prohibition, and that 10 says the provisions of this article shall
prevail, 11 how does that fit in with your comment that there's 12 a conflict in the code. 13 MR. THRASHER: I'm not saying I disagree with 14 Mr. Roeder's interpretation
of the code. What I am 15 saying is that, the mechanic or mechanics of how 16 this is to be evaluated should not only be an 17 instrument that is exclusively provided
by the 18 applicant. There is no voice for the town in that 19 particular decision. 20 It appears obvious to me that the metal roofs 21 are not desired, and
it is not something that, on a 22 single-family home, that the residents want to have 23 appearing. A single affidavit or engineering report 24 from the applicant seems
inappropriate and there 25 should be an additional voice in that concern. Just www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 18 1 to say that
because they provided this document and 2 because the code says that it would prevail, it 3 should have some -- the town should have some voice 4 in what -- their engineers,
their experts might say. 5 This particular home I think was built in 1972. 6 It had installed a concrete roof of some type. I 7 believe that it was reroofed in 1999
with the same 8 type, similar materials. 9 What has transpired from 1999 to date is 10 certainly outside my expertise, but it was able to 11 support a concrete
roof up until the permit 12 application was basically withdrawn by the 13 applicant. And we were told by the contractor that 14 the owner no longer wants a concrete
roof, but 15 prefers a metal roof. There was no comment about 16 engineering report at that time. 17 MR. RANDOLPH: Mr. Mayor, it appears there's 18 two points
being discussed in Bill's answer. His 19 second part of his answer related to whether or not 20 the town has to simply accept the engineer's 21 certification. That
is another issue that I think 22 we should discuss separately from this, but the 23 first question before you is whether or not there's 24 a conflict in the code, which
requires the applicant 25 to apply for a variance. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 19 1 And I think that the section that has
been 2 pointed out by Mr. Roeder is very important under 3 70-186 where it says, the provisions of this article 4 conflict with those in Article 5, the provisions of
5 this article shall prevail. 6 So, you know, Bill's point is that he's looking 7 at section 70-99 which prohibits metal roofs, and 8 they're looking at 70-187(2),
which also prohibits 9 metal roofs, but provides an exception in the event 10 they're able to have an engineer's certification 11 show that the structure does not support
a tile 12 roof. 13 MR. MAYOR: Do we have a right to have our 14 engineer look at the structure, their roof to see? 15 MR. RANDOLPH: That goes to the second
point. 16 I know, and this should come out through testimony. 17 I know the town has requested certain information 18 from the owner. And Rita, probably if you're going
19 to testify, you should be sworn as well. 20 THE CLERK: I swear. 21 MR. RANDOLPH: Do you swear or affirm the 22 testimony you're about to give is the
truth, the 23 whole truth and nothing but the truth? 24 THE CLERK: I certainly do. 25 MR. RANDOLPH: Try to keep these two points www.reifkingwelch.com (877)
291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 20 1 separate though because the first one is whether 2 there is a conflict in the code to go for a 3 variance. There's
an argument that's been made 4 that, one, that this section that they're applying 5 under is not in conflict because it specifically 6 states that that shall prevail
on the point of the 7 town clerk. 8 And two, I think they're arguing that this 9 section is an exception to the code because the 10 section that they're traveling
under has a 11 prohibition. And it says, there is an exception to 12 the prohibition in the event you can show that the 13 structure won't support a tile roof. 14
The second question that you're on now relates 15 to the engineer's certification and whether or not 16 you're required to accept that engineer's 17 certification
on its face or whether you can test 18 the engineer's certification by hiring your own 19 engineer. Rita, would you just testify as to what 20 you've requested of the
owner in regard to your 21 being able to check the engineer's certification. 22 THE CLERK: Yes. We gave three different dates 23 and times that we had an engineer
that was available 24 and we asked through the attorney for permission to 25 go in and let him do his inspection with the owner's www.reifkingwelch.com (877) 291-DEPO (3376)
REIF KING WELCH LEGAL SERVICES 21 1 approval. And we were told that the owner, in the 2 past, had been unwilling to allow anyone to go in 3 and that was the end of it.
4 MR. ROEDER: If I might, Mr. Thrasher makes a 5 number of points, but I would definitely admit to 6 what Rita's asking. Rita called and asked, one, 7 either
for some data or backup information as to 8 what clarified the certifications; is that correct, 9 Rita? Or allowing the town's engineer to come in. 10 Our position
was, we're appealing variance. It 11 was after we filed our appeal. Appeal is, like you 12 say, Mr. Randolph, there's two different points 13 going here. One is, is
a variance required? We 14 don't think a variance is required. 15 Now, if we start looking to -- does the code 16 say, okay, you provide a certification which then
17 the town now can question? The code is very clear. 18 We have to provide an engineer's certification. 19 That was our position. We have done what the code 20
says and we're not talking about that issue really 21 right now. 22 We're talking about the variance, but if we are 23 going to start talking about it, we have
done what 24 the code says, that's what we provided. Now, 25 Mr. Thrasher provides that the town doesn't have a www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH
LEGAL SERVICES 22 1 position in this. They do under 187-2. 2 187-2 has two conditions that fall upon the 3 applicant to show we are reroofing. And that's why 4
it was put in here. Some of these homes, when you 5 reroof, you may find that what's underneath there is 6 not what you thought it would be. 7 You might recall,
Broward County recently 8 adopted a large change to their building code that 9 requires all multifamily residential buildings 10 before a certain year be inspected, because
they're 11 concerned about what happens to the buildings over 12 time. There's decay in the material, weakening, 13 damage because of hurricanes. 14 This building
is 35 years old. When you're 15 talking about 40 years, we're getting close to that 16 limit, but Mr. Thrasher said the town doesn't have a 17 position. Our two positions,
our two requirements, 18 reroofing, which we are, you have the barrel tile 19 and putting on a different roof. 20 Number two, we provided an engineer 21 certification.
The town's position is, tell us 22 what's appropriate, what metal roof is appropriate. 23 Let me say here, the client wanted me to be 24 sure to say this, we are
not stuck on a metal roof. 25 Mr. Thrasher says, the client wants a metal roof. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 23 1 The client
wants what's good for the home. The 2 metal roof happens to be the lightest roof you can 3 put on. First it's metal, then shingle, then shake. 4 Then you go up to the
barrel tile and concrete tile. 5 If you take the weight of a concrete tile roof, 6 in addition to what goes on a metal roof on a home, 7 on this home, based on the
square footage of that 8 roof, it would be like putting 11 medium sized 9 sedans on that roof. That's the weight that a 10 concrete tile roof has. 11 People
don't quite understand that there's that 12 much difference and after 35 years, in an 13 engineer's, opinion can't take it. The client is 14 not set on a metal roof.
He just as soon have 15 shingle or shake, but shingle and shake are 16 absolutely prohibited. There's no little footnote 17 provision allowing for them to be put in
the section 18 standards, the district standards within the code. 19 In the overall code, they're absolute. 20 The only one that has an allowance for a metal 21
roof or for any different roof is the metal roof. 22 So that's why he's applied for it. If you grant him 23 a shingle or a shake, he'd take it in a heartbeat. 24
He's out to put a roof on there that would 25 absolutely fit and be allowed within the weight www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 24
1 restrictions and not be detrimental to he and his 2 family. 3 MR. RANDOLPH: It's my understanding, 4 therefore, that your client's position is that the 5
engineer's certification must be taken on its face 6 because of the way the ordinance is written and the 7 town must accept your engineer's certification. 8
MR. ROEDER: Unless you can show cause why you 9 wouldn't. If that's the case, then the code should 10 say, engineer's certification to be verified by the 11 town or
engineer's certification with backup 12 information. An engineer takes a lot of 13 responsibility to provide that. 14 MR. RANDOLPH: I understand, but your 15
engineer's certification says, to the best of my 16 knowledge and belief and based upon my professional 17 opinion. 18 MR. ROEDER: Exactly. 19 MS. ORTHWEIN:
I would think we could question 20 it. Forty years of having a concrete roof on the 21 home and all of a sudden it can't hold concrete. I 22 think we have a right
to question why your engineer 23 says it can't hold it any more. 24 MS. ANDERSON: It's questionable how all of a 25 sudden it couldn't hold it. www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 25 1 MR. ROEDER: You mean as far as a reroofing in 2 1999. 3 MS. ANDERSON: Yeah. 4 MR. ROEDER:
Maybe they didn't have an engineer 5 to take a look at it. So what happened, my client 6 stripped all the Sheetrock -- he has a permit for 7 re-Sheetrocking, there's
a lot that was discovered 8 in that process. I don't know. I'm not acquainted 9 with it. 10 The idea is, he stripped it all off, talked to 11 the engineer
and asked, can this hold concrete tile 12 roof? And the answer was no. 13 MR. MAYOR: Would your client object to us 14 having an engineer coming in? 15
MR. ROEDER: He has so far, and that's 16 because -17 MR. MAYOR: So far, but under the circumstance, 18 we're trying to resolve this thing. 19 MR. ROEDER:
I think again, as Mr. Randolph 20 says, there's two different issues. Right now we're 21 addressing the variance issue. Is there a 22 requirement for variance? We
don't think there is. 23 And if there's not, we're -24 MS. ORTHWEIN: I believe under the circumstance 25 there's a variance required, because of so much www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 26 1 question with your engineer's report. 2 MR. ROEDER: I guess that's the question for 3 Mr. Randolph, the
town can create a variance because 4 the town questions an engineer's report? 5 MR. RANDOLPH: I think the question -- yeah. I 6 think they can ask for a variance
if it is not 7 proven that your engineer's certification is 8 correct. Because if you don't meet that standard, 9 which is set forth in the exception, then I think 10
even you would agree that you would need a variance 11 from the prohibition. 12 So I think the burden is on you to show that 13 you meet the exception. And
I believe, quite 14 frankly, that the town does not have to take the -15 with the number of engineers that you've heard 16 testify in court and the number of different
17 opinions that you've heard attorneys have from each 18 other, I think it's reasonable for the town to be 19 able to test that engineer's certification in order 20
to verify it. 21 I just think that's reasonable under the 22 circumstances, and I don't think it's a reasonable 23 interpretation of the code to mandate that
the town 24 accept an engineer's certification without it having 25 the opportunity to test it. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
27 1 MR. ROEDER: So I hear two different things 2 here. Mr. Randolph saying that the town has a right 3 to question the engineer, but then I hear the 4 commissioner
saying it's a -- variance is required. 5 Either a variance is or is not required. The 6 separate question is, whether the town then wants to 7 question the engineer.
Correct me if I'm wrong, but 8 that's -9 MR. RANDOLPH: I think they are two 10 different -- two separate issues. The way I'm 11 trying to tie that in as to
what the commissioner 12 said is that, I think she's saying that she thinks 13 the variance is necessary in the event you haven't 14 met the exception. 15 And
I think -- there's an argument that you 16 haven't met the exception if you don't allow the 17 town to test or verify your engineer's 18 certification, because then you
won't follow it. 19 If we test it and the final determination is 20 that the roof can hold the structure can hold a tile 21 roof, then you'd have to get a variance
from the 22 prohibition. But the first question really is, and 23 I think, you know, I think we have to resolve the 24 second question before a final determination can
be 25 made as to whether you need a variance from the www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 28 1 prohibition. 2 MR. ROEDER:
I think we have one item on the 3 agenda that needs to be addressed in your challenge 4 the requirement for a variance, then if the town 5 wants to take the position,
well, okay, variances 6 are required, but we don't think you've met the 7 conditions of this exception, then that's another 8 story. 9 But to sit there and create
a variance, because 10 you don't think we -- don't think we've met the 11 conditions of the allowance seems to be adverse to 12 the code. 13 MS. ORTHWEIN: I
don't think you've met the 14 conditions and I agree -- the conditions. 15 MR. RANDOLPH: Which ones? 16 MS. ORTHWEIN: The conditions of the variance 17
report. I don't think we can go on just this 18 engineering report because the house has had a roof 19 for 40 years. 20 I don't think we would be doing our due
21 diligence if we didn't question it. 22 MR. DEVITT: I served with a group of citizens 23 who drafted the design manual. So Urban Design, it 24 was made up
of a group of citizens from the 25 community. One of the top items on our list of www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 29 1 things to
address were metal roofs, so I'm very 2 familiar with this provision. 3 I happen to also own at the time a house in the 4 area that had a cedar shake roof. And so,
me and 5 several other people had that same condition. We're 6 worried that if we had to replace our roof, it would 7 not support the weight of a concrete tile roof.
8 That exception was built in for homes that had 9 that particular problem. You've given us a list of 10 pictures and addresses and other places that have 11
roofs that have that condition that are pretty clear 12 would not support the weight of a white tile roof. 13 That's why the exception is written into the manual. 14
From what I've heard today, I think you've got 15 to allow us to question your one sentence line from 16 your engineer that says it won't work based on the 17 history
that there's been a white tile roof on that 18 house for 40 years. 19 MR. MAYOR: My feeling that the council wants 20 more information, wants the right to have his
21 engineer move forth, questions about it and we're 22 getting the answers for ourselves, is that -23 MR. RANDOLPH: Let me ask a question first, 24 from a
procedural standpoint. 25 This hearing today, of course, relates to an www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 30 1 appeal between the
applicant and the commission. 2 But I noted a lot of hands go up from the public, 3 and I wondered if at some time, Mr. Mayor, you want 4 to call on people from the public.
Keeping in mind 5 that the issue is not whether you as a neighbor like 6 a metal roof or not. 7 The argument here is whether our code requires 8 a variance
and whether or not we have the right to 9 go beyond the engineer's certification. But these 10 folks have shown up in response to a notice, so you 11 might allow them
the opportunity to speak. 12 MS. ORTHWEIN: Is there anyone that wants to 13 speak about this? 14 MR. MAYOR: Some of them are here for something 15 else.
16 MS. ORTHWEIN: Do you have any comments to make 17 about this? 18 MR. RANDOLPH: I wanted that on the record. 19 MR. SLOAN: I'm Dana Sloan, architect
with 20 Sloan and Sloan Architects in Delray Beach. I can 21 make one comment with regards to engineer's reports. 22 Over time the assigned values to the strength
23 of wood has gone down through no real change in the 24 wood, because of safety factors being changed, due 25 to increase paranoia, maybe from lawsuits, so you www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 31 1 can get a variety of interpretations from engineers. 2 And the ones that are most paranoid or assign 3 the
highest safety factor may give a much lower 4 strength to the roof, whereas, in reality and a 5 rational analysis it's plenty strong, so there is a 6 lot of variation
in engineering. 7 MS. ORTHWEIN: Thank you. I agree with that. 8 MR. ROEDER: Following up on that, the code 9 since 1999 has been changed quite a bit because
of 10 the hurricanes that have come through. The Miami 11 code has a lot of higher requirements, higher 12 standards have to be met by engineers. So one may 13
be appropriate, number two may be the increased 14 standards given the new code. 15 MR. MAYOR: We've been on this, Counsel. 16 MR. DERING: Would your client
refuse to allow 17 the town to have an another engineer look at it? 18 MR. ROEDER: He has to date because there has 19 been a number of different issues. 20
MR. DERING: As of right now? 21 MR. ROEDER: As of right now. 22 MR. DERING: Right now, will he not allow that? 23 MR. ROEDER: As of now he has not.
24 MR. DERING: He will not. 25 MR. ROEDER: He has not. I speak from history. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 32 1
He'd like a decision on the variance. And then if 2 it goes beyond that, then there's a question on the 3 engineer. 4 MS. ORTHWEIN: How shall we proceed with
this 5 because I think we should move on? 6 MR. RANDOLPH: I think there's two 7 alternatives. If Mr. Roeder is saying his client 8 will not allow the town
to go beyond the face of the 9 engineer's report, I think you should simply make a 10 decision today as to whether or not he needs a 11 variance. 12 Alternatively,
you could defer this item and 13 give the applicant an opportunity to indicate 14 whether or not they will allow the town to test the 15 engineer's report with the report
of another 16 engineer. 17 At that time, you'd be able to, in the event 18 this engineer -- another engineer were to verify 19 that your engineer's report is
correct, then this 20 could come back. And I think the answer is going to 21 be easy, because based upon what you've pointed out 22 in regard to the provision that says
that, in the 23 event there's a conflict, that the provisions of 24 Chapter 70 shall prevail, and you can show that 25 you've met the requirements, I think my advice
to www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 33 1 the commission would be that there's not a conflict 2 and that you don't need a variance.
3 But I think you have to show first -- if you 4 don't show that you've met the requirement of the 5 engineer that the roof can't support a tile roof, 6 then
the direct prohibition applies and then you 7 would clearly need a variance. 8 If, however, you can show that you've met that 9 requirement, then I think the weight
of the 10 evidence, as I see it, shows that there's not a 11 conflict in the ordinance, that the ordinance is 12 very specific and says that this chapter that you're
13 traveling under prevails. 14 But I don't think they're obligated to make 15 that determination until they know that your client 16 is willing to allow them
to test your engineer's 17 report. So those are the two alternatives that I 18 see are available to you. 19 MR. DEVITT: I agree with that interpretation. 20
MS. ORTHWEIN: Now, it's up to you whether 21 you're going to allow us to come in and look at the 22 house. 23 MR. MAYOR: We have to make a motion. Let's
24 move on. 25 MR. ROEDER: I'd like to make one more www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 34 1 statement here. The issue you
have before you is 2 whether or not a variance is required. I hear one 3 opinion from the attorney that it's not, and then 4 beyond that I hear it's whether or not we
allow you 5 to put on a metal roof, we're going to want to see, 6 have our engineer take a look and verify that what 7 your engineer says is correct. 8 But the
two are being mixed. The third 9 alternative is to make a decision, is there a 10 variance required; if not, then say but, instead of 11 approving what you have, we're
going to want to see 12 X and Y, then have I something to take back to my 13 client. Otherwise it's, the town saying, well, for 14 these reasons -- which we're stepping
ahead of 15 ourselves, for these reasons we're going to say a 16 variance is required. You're not making a decision. 17 MR. RANDOLPH: That's a viable third 18
alternative, as long as you agree that in the event 19 you don't meet the requirement of the roof being 20 able to substantiate the tile, that a variance is 21 needed,
because then the prohibition does apply. 22 MR. ROEDER: That seems reasonable. 23 MR. RANDOLPH: You and I are saying the same 24 thing. He doesn't want to
come back -- he doesn't 25 want to go to his client and say, look, they want www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 35 1 you to -- they
want to test your engineer's report 2 without knowing that you're not going to require him 3 to come in, if he goes that extra step and prove 4 that a variance is needed.
5 MR. ROEDER: Exactly, it's one step at a time. 6 We don't want the goal post to keep shifting, but we 7 have these concerns. We want to see this. Then my 8
client has a decision to make. 9 MS. ORTHWEIN: I think under our rule, a 10 variance is required right now. 11 MR. ROEDER: That's -12 MS. ORTHWEIN:
That's what I believe right now. 13 MR. ROEDER: I respectfully disagree. 14 MR. DEVITT: If you allow us to have an 15 engineer look at your engineer report,
he's going to 16 come back and with one of two things. He can either 17 substantiate and verify your engineer's report, in 18 which case, this will be a done deal. 19
If he says, I don't agree with it, then you'll 20 either accept that and move on, or you'll want to 21 come in a variance. Go back to your client today 22 and
if your client says, absolutely not, do not let 23 them in the house -24 MR. ROEDER: So it's a deferring on the 25 variance today, but a request to review our www.reifkingwelch.c
om (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 36 1 engineer's report? Is that what I hear? 2 MR. RANDOLPH: I think you have to find that 3 out from whatever
motion you hear today. That 4 sounds like what Fred's saying. 5 MR. MAYOR: We're ready for a motion. 6 MR. THRASHER: I'm concerned we won't have 7 resolution
on two engineering reports, should there 8 be some thought of the two engineering firms going 9 and agreeing to a third. 10 MR. RANDOLPH: I think we can handle that
11 administratively. If, for instance, there's a 12 conflict in the two engineer reports, I think the 13 two engineers could select another engineer. 14 MS.
ANDERSON: Oh, boy. 15 MR. RANDOLPH: Let's cross that bridge. 16 MR. MAYOR: Do we have a motion? 17 MR. DERING: I make a motion to defer this 18 until
we have a right to have an engineer inspect 19 it, or stipulate if those two disagree that jointly 20 they provide a third one. And depending on the 21 results of that,
and I presume you can get that done 22 in the next month, you know, if we come back and it 23 ought to be pretty clear then. 24 MS. ORTHWEIN: I second that. 25
MR. RANDOLPH: So we know, that's deferral then www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 37 1 to a time certain, so we won't be required
to give 2 notice again, we're deferring to a date certain 3 which will be what date, Rita? 4 THE CLERK: That will be May the 11th at 9 a.m. 5 MR. RANDOLPH:
Unless -6 MR. DERING: Do we want to do that or tell 7 him -- we have an obligation do it quickly, but do 8 we get an engineer? If your client will not let 9
another engineer in -10 MR. ROEDER: I have a pretty good idea what 11 you're going to do on May 11th. 12 MR. RANDOLPH: If he doesn't let an engineer -13
I think you should set a time certain so they don't 14 have to send notice out again. If it gets 15 complicated and it can't be done by then, you come 16 back in
session and either defer it because of the 17 engineer's report hasn't been done or if the 18 engineer's report is refused, then you'll know what 19 action to take, you
can come back. 20 MR. MAYOR: Do I hear a second? 21 MS. ORTHWEIN: I second. 22 MR. MAYOR: Roll call, please. 23 THE CLERK: Commissioner Orthwein?
24 MS. ORTHWEIN: Aye. 25 THE CLERK: Commissioner Devitt? www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 38 1 MR. DEVITT: Aye.
2 THE CLERK: Commissioner Anderson? 3 MS. ANDERSON: Aye. 4 THE CLERK: Commissioner Dering? 5 MR. DERING: Aye. 6 THE CLERK: Mayor Koch?
7 MR. MAYOR: Aye. 8 MR. ROEDER: Just so I'm clear, if I could ask 9 Rita Monday or something, type me a little one 10 paragraph exactly what the motion
says, because it's 11 confusing. I think I understand, but I want be able 12 to relay it to my client correctly. Thank you very 13 much for your time. 14 15 16 17 18
19 20 21 22 23 24 25 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 39 1 CERTIFICATE 2 3 THE STATE OF FLORIDA, ) 4
) 5 COUNTY OF PALM BEACH. ) 6 7 I, Lee M. Walker, Florida Professional Reporter, do 8 hereby certify that the foregoing proceedings were held 9 as hereinabove
set out; that I was authorized to and 10 did report in machine shorthand the proceedings in said 11 public meeting; and that the foregoing pages comprise a 12 true and correct
transcription of my stenotype notes of 13 the proceedings. 14 Dated this 1st day of May 2012. 15 16 17 18 19 LEE M. WALKER, FPR My Commission
Expires 11/30/15 20 Commission #EE142444 21 22 23 24 25 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO
(3376) REIF KING WELCH LEGAL SERVICES 1 A ability 16:14 able 18:10 19:10 20:21 26:19 32:17 34:20 38:11 absolute 23:19 absolutely 23:16 23:25 35:22 accent 6:11 accept 18:20 20:16 24:7
26:24 35:20 acceptable 7:12 accustomed 5:7 acquainted 25:8 acquired 11:19 action 3:13 37:19 addition 23:6 additional 17:25 address 5:13 8:25 29:1 addressed 28:3 addresses 29:10 addressing
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18:17 applicable 15:20 applicant 17:18 17:24 18:13,24 22:3 30:1 32:13 application 3:15 13:22 18:12 applied 3:21 23:22 applies 33:6 apply 9:9 16:2 16:14 18:25 34:21 applying 12:3 20:4
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39:8 challenge 28:3 change 11:14 22:8 30:23 changed 30:24 31:9 chapter 5:19,22 32:24 33:12 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 2 character 8:14
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29:5 29:11 conditions 6:24 7:9,23 22:2 28:7,11,14,14 28:16 condominium 9:12 conflict 12:7,8 12:13,18,19 13:18,19 14:12 16:20,25 17:1 17:2,7,12 18:24 19:4 20:2,5 32:23 33:1,11 36:12
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17:9 cross 36:15 current 8:17 15:4,8 D damage 22:13 Dana 30:19 data 21:7 date 18:9 31:18 37:2,3 dated 15:10 39:14 dates 20:22 day 3:4 39:14 days 5:7,11 deal 35:18 decay 22:12 decided
10:24 decision 3:19 4:18 12:25 17:19 32:1,10 34:9,16 35:8 decorative 6:11 defer 32:12 36:17 37:16 deferral 36:25 deferring 35:24 37:2 definite 16:25 definitely 21:5 definition 5:17
5:18 Delray 30:20 depending 36:20 Dering 2:7 31:16 31:20,22,24 36:17 37:6 38:4,5 described 3:17 design 6:4 8:3 8:13 28:23,23 desired 8:14,20 9:3 17:21 determination 27:19,24 33:15 determined
6:18 10:9 15:15 determining 15:10 detrimental 9:22 24:1 deviates 5:22 deviation 5:18 Devitt 2:6 28:22 33:19 35:14 37:25 38:1 difference 23:12 different 16:23 20:22 21:12 22:19 23:21
25:20 26:16 27:1,10 31:19 differential 15:1 15:11 diligence 28:21 direct 13:14 33:6 disagree 17:13 35:13 36:19 discovered 25:7 discuss 18:22 discussed 18:18 disparity 7:21 district
5:19 6:7 6:8,13 8:15 9:4 12:5 14:2,8 16:9 23:18 districts 8:21 10:18 document 18:1 doing 28:20 doubt 9:21 drafted 28:23 due 28:20 30:24 dwelling 3:22 dwellings 14:21 E easy 32:21 EE142444
39:20 either 21:7 27:5 35:16,20 37:16 elements 8:14 emphasis 8:16 emphasize 9:2 engineer 6:21 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 3 7:2 19:14
20:19,23 21:9 22:20 24:12,22 25:4,11,14 27:3,7 29:16 29:21 31:17 32:3,16,18,18 33:5 34:6,7 35:15,15 36:12 36:13,18 37:8 37:9,12 engineering 17:23 18:16 28:18 31:6 36:7,8 engineers 18:4
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exclude 15:21 excluding 16:10 exclusion 15:25 exclusively 17:17 excuse 10:7 12:11 16:18 executed 3:4 existing 6:20,22 expertise 18:10 experts 18:4 Expires 39:19 extra 35:3 ex-parte
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mind 30:4 minor 6:11 8:2 11:21 Missing 3:4 mixed 34:8 Monday 4:25 38:9 month 36:22 morning 4:1,14 motion 33:23 36:3,5,16,17 38:10 move 29:21 32:5 33:24 35:20 multifamily 9:12 14:20,21
22:9 Muriel 2:5 N name 4:1 National 3:3 necessarily 8:24 necessary 4:19 27:13 need 4:3 6:16 7:1 8:25 26:10 27:25 33:2,7 needed 34:21 35:4 needs 7:3 28:3 32:10 neighbor 30:5 neighborhood
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32:4 33:20 35:9,12 36:24 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 5 37:21,23,24 ought 36:23 outside 18:10 overall 23:19 override 12:5 overrule 12:25
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30:18 referred 6:1 referring 14:23 refuse 31:16 refused 37:18 regard 13:17 20:20 32:22 regards 15:1,11 30:21 regulations 8:17 related 18:19 relates 20:14 29:25 relay 38:12 replace 11:15
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26:20 27:17 32:18 34:6 35:17 versus 15:13 viable 34:17 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 8 Vice 2:4 voice 17:18,25 18:3 W W 2:7 Walker 39:7,19
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29:18 Z zoning 8:15,21 9:4 1 1st 39:14 11 23:8 11th 37:4,11 11/30/15 39:19 13 1:22 15th 7:6 10:12 187(2) 6:24 12:6 187-2 22:1,2 1972 18:5 1999 18:7,9 25:2 31:9 2 2 8:11 2012 1:22 3:3
39:14 25th 3:3 2520 3:16 3 35 22:14 23:12 36 3:17 4 40 22:15 28:19 29:18 4400 9:15 5 5 6:5,6 7:21 12:14 14:13 17:8,8 19:4 6 6 6:7 7:22 12:10 14:2 6th 12:25 66.1 5:17 7 70 10:22 32:24
70-186 14:9 17:6 19:3 70-187 10:7 16:24 70-187(2) 6:13 7:8 9:7 10:8 12:19,19 19:8 70-4 9:24 70-4(c)(4) 8:12 70-86 14:10 70-99 16:24 19:7 70-99(3) 6:3 12:2,18 9 9 37:4 9:30 1:22 Tab 14
Page 1 of 4 Response to Mr. Thrasher's Required Variance April 13, 2012 ARGUMENT AGAINST PART I Sec. 66-1 Definitions "Variance shall mean a deviation from the district requirements
of this chapter...." 1. We agree with Mr. Thrasher as to the stated definition -- that a variance is a deviation from the code; however, the metal roof Mr. O'Hare is proposing is allowed
under the Town Code, and is not a deviation from it. Please go to discussion of Sec. 70-187(2) under Part III, Clarification. 2. Since a reading of Sec. 70-187(2) clearly indicates
that a metal roof is allowed under certain circumstances, circumstances that my client has met, I thought it prudent to call one of those who, in their infinite wisdom, found it appropriate
to include this provision within the Town's code to see if they would classify this as a variance. So, I called Marty Minor, Senior Project Planner with Urban Design Studio, the firm
that drafted the Gulf Stream Design Manual years ago for the Commission's approval. When I asked Mr. Minor if we should elect to proceed with a metal roof as allowed under Sec. 70-187(2),
would a variance be necessary? He replied, "NO." He said Sec. 70-187(2) was our "out to a prohibition of metal roofs." PART II Sec. 70-4(c)(4) How to use the manual a. Prohibited
items are design elements that do not maintain the desired character or quality of the zoning district within which they are located and [my emphasis] are not permitted under current
codes or regulations. 1. Mr. Thrasher says that "There are no metal roofs on any single family homes in Gulf Stream as they do not maintain the desired character or quality of any
zoning districts." However, I cannot find this specific finding in the code. That's because it's not in the code. It's simply Mr. Thrasher's opinion. And to take the position that
something cannot be approved because it doesn't yet exist in the Town is, we think, indefensible. Page 2 of 4 2. However, it probably isn't necessary to make that kind of decision,
because Mr. Thrasher also fails to note that the section of the code he is quoting here, Sec. 70-4(c)(4), requires that a prohibited design element not maintain the character of the
zoning district AND not be permitted under the current code. Since metal roofs are permitted under the Town code, we feel that Mr. Thrasher is wrong and Sec. 70-4(c)4 would NOT apply
to my client's request. 3. Assuming for a moment we accept Mr. Thrasher's assertion that there are no metal roofs on single family residences within Gulf Stream (even though we believe
there might be some in the recently annexed areas), there are metal roofs on several multi-family residential buildings, which co-exist adjacent to single family residential -- with
no apparent negative impacts. One needs only look at 3960 N. Ocean Blvd (or Polo Ridge) right across the street from the Town Hall and next to several single family residences along
County Road. And then there's 4400 N. Ocean Blvd, two, identical 2story residential condo buildings, one with it's original white concrete tile mansard roof, the other with a white
metal mansard roof replacement. Have the single family homes behind or next to either of these buildings been negatively impacted? We don't think so. 4. It is appropriate to note
here that also in Sec. 70-4 How to use this manual, when discussing styles, the manual states that "[Gulf Stream Bermuda and Mediterranean Revival] styles are not mandatory but are
indicative of the predominant styles within the community." So, there seems to be a conflict here. Does one's design elements have to maintain the character of the zoning district
as Mr. Thrasher suggests, less they be declared "prohibited?" Or does one look to the "predominant style in one's neighborhood as another part of Sec. 70-4 suggests? But again looking
to the wording of Sec. 70-187(2) for guidance, the yardstick seems to be "a metal roof determined by the Town to be appropriate to the structure and to the neighborhood" -- which is
something my client's roofer originally asked the Town to provide back on Nov. 15th; he was told by Mr. Thrasher, "No metal roofs, period," which clearly is not what the code says,
and is misleading in its omission of the clearly available option. Not that it's my client's obligation according to the code, but we can provide the Commission some information about
the Place Au Soleil, the neighborhood in which my client's house is located. In Place Au Soleil some 70% of the lots are labeled by the Town code as "other/various styles." You should
note that even the great majority of homes in all of Gulf Stream are classified as "other/various styles." Please see map provided. As far as prohibited roof styles within my client's
neighborhood, there are 3 homes that have wood shakes, 3 have flat roofs, and 4 with asphalt shingles, including one home with a shingle roof right across the street from my client
(please see attached) -- again, all are prohibited roof types with no conditional allowances. So, how can one say a metal roof, a roof type which is allowed under Sec. 70187(2), would
"not maintain the desired character or quality of the zoning district within which [my client's house is] located?" Page 3 of 4 5. Since we're on this subject, you might also want
to note that in Sec. 70-3 Purpose [of the Design Manual] it states that "the design standards in this chapter (Chapter 70) are, by specific intent, illustrative rather than prescriptive"
(i.e., not relating to the imposition or enforcement of a rule)." PART III Sec. 70-99 (3) Roof design, slope and materials "Prohibited. Metal roofs (except unpainted copper when
used as a decorative accent or on minor accessory structures.)" Section 70-187(2) Roofs "Prohibited. Metal roofs1 1. Certain metal roofs determined by the town to be appropriate
to the structure and the neighborhood may be approved only in instances of re-roofing of existing structures based upon an engineer's certification that the existing structure will
not support a tile roof." CLARIFICATION: To paraphrase here, it's very clear to an unbiased reading of the code, that 70-187(2) states what may be done -- in other words, what is
permitted. And there are conditions to what is permitted -- 2 on behalf of my client, 1 on behalf of the Town. As far as my client is concerned, we must (a) be an instance of re-roofing,
which we are, AND (b) we must provide the Town with an engineer's certification that the existing structure will not support a tile roof, which we have also done. Now, according
to the code, it is incumbent upon the Town to let us know what the "certain metal roofs" are that they will approve. If the Town takes the position that there are no appropriate metal
roofs, then the code would be misleading and there should, instead, be an outright prohibition with no footnote -- which we think would be contrary to the intent and the letter of the
code. If the Town hasn't yet figured out what metal roofs are appropriate, then we've provided you, the ultimate decision making body, the Town Commission sitting as the Board of Adjustment,
some information on the metal roof my client is proposing. It is the highest quality and highest gauge of metal roof made for residential use; and it is white, so as to match the other
white roofs in the neighborhood (which, by the way, are not all white). Please go back to Part I (2). Page 4 of 4 MR. THRASHER'S POSITION: Mr. Thrasher makes a couple of points
regarding 70-99(3) and 70-187(2): 1. First, Mr. Thrasher says that "even though the footnote could provide for a metal roof, a variance would be required as it is still listed as prohibited."
THIS SIMPLY IS NOT TRUE. Metal roofs are a conditional allowance under Sec. 70-187(2). Again, I called Marty Minor, Senior Project Planner with Urban Design Studios. And when I
asked Mr. Minor, should Mr. O'Hare elect to proceed with a metal roof as allowed under Sec. 70-187(2), would a variance be necessary, he replied, "NO." 2. Next, Mr. Thrasher says that
since the mention of metal roofs is in two sections, and since the two sections conflict, the most restrictive section, Sec. 70-99(3), by some historical convention, must prevail.
a. If there is a conflict, one should go to the code for guidance. If one looks in Article VI, at the last sentence of 70-186(b), you will note: "...where the provisions of this
article [where Sec. 70-187(2) is located] conflict with those of article V [where Sec. 70-99(3) is located], the provisions of this article shall prevail." In other words, Sec. 70-187(2)
supersedes Sec. 70-99(3). b. Mr. Thrasher in his report admits that there is a conflict between Sec. 70-99(3) and Sec. 70187(2). So, if Sec. 70-99(3) prohibits metal roofs, and if
there is a conflict with 70-187(2) as Mr. Thrasher admits, then 70-187(2) must therefore allow metal roofs; because if Sec. 70-99(3) and Sec. 70-187(2) both prohibit metal roofs, then
there is no conflict. So, if Sec. 70-187(2) allows metal roofs, which it does, and if a variance, by the definition provided by Mr. Thrasher, is a deviation from the code, then a variance
is NOT required. RECOMMENDED MOTIONS: The evidence supporting our Appeal is specific and overwhelming. As such, we think following Commission actions are warranted: 1. Over-turn
the Town Manager's decision in his March 6, 2012 letter requiring my client to submit for a variance in order to install a metal roof; AND 2a. Approve my clients application for a white
metal roof; OR 2b. As required by the Town code, tell my client what type of metal roof you would find appropriate. -- THANK YOU -- Place Au Soleil Neighborhood STYLES: Gulf
Stream Bermuda : 22 homes 24% Spanish/Mediterranean Revival: 5 homes 6% Other/Various: 63 homes 70% Total 90 homes Place Au Soleil Neighborhood Forbidden Roof Types
Place Au Soleil Neighborhood O'Hare Residence: 2520 Avenue
Au Soleil (North-West Side) 2520 Avenue Au Soleil (North-East Side)
2520 Avenue Au Soleil (East Side) Place Au Soleil Neighborhood Asphalt
shingles A. 2500 Avenue Au Soleil B. 805 Tangerine Way C. 945 Indigo Point Place Au Soleil Neighborhood Asphalt shingles, cont'd D. 935 Indigo Point
Place Au Soleil Neighborhood Wood Shakes E. 915 Emerald Row F. 2730 Avenue Au Soleil G. 2745 Avenue Au Soleil Place Au Soleil Neighborhood Flat Roofs
H. 940 Emerald Row I. 810 Canary Walk J. 2735 Avenue Au Soleil Place Au Soleil Neighborhood O'Hare Residence: N N Tab 15 www.reifkingwelch.com (877) 291-DEPO (3376)
REIF KING WELCH LEGAL SERVICES TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA
BOARD OF ADJUSTMENT 100 SEA ROAD GULF STREAM,
FLORIDA 33483 (561) 276-5116 BOARD OF ADJUSTMENT MEETING of May 11, 2012 9:00
a.m. TOWN HALL 100 Sea Road Gulf Stream, Florida 33483 APPEARANCES: WILLIAM F. KOCH, JR., Mayor JOAN K. ORTHWEIN, Vice Mayor W.
GARRETT DERING, Commissioner MURIEL J. ANDERSON, Commissioner FRED B. DEVITT, II, Commissioner WILLIAM H. THRASHER, Town Manager RITA TAYLOR, Town Clerk JOHN RANDOLPH, Town Attorney
www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 2 1 (Thereupon, the following proceedings were 2 had:) 3 MS. TAYLOR: Commissioner Orthwein?
4 VICE MAYOR ORTHWEIN: Here. 5 MS. TAYLOR: Commissioner Devitt? 6 MR. DEVITT: Here. 7 MS. TAYLOR: Commissioner Anderson? 8 MS. ANDERSON:
Here. 9 MS. TAYLOR: Commissioner Dering? 10 MR. DERING: Here. 11 MS. TAYLOR: Mayor Koch? 12 MAYOR KOCH: Here. 13 MS. TAYLOR: Let the
Record show that the 14 Town Manager and Attorney Randolph are also 15 present. 16 MAYOR KOCH: You have the minutes. Any 17 additions, corrections of anybody?
18 MS. ANDERSON: I would like to move they are 19 approved from the meeting of April 15th. 20 MAYOR KOCH: So moved. 21 VICE MAYOR ORTHWEIN: Second.
22 MAYOR KOCH: All right. Roll call. 23 MS. TAYLOR: Commissioner Orthwein? 24 VICE MAYOR ORTHWEIN: Aye. 25 MS. TAYLOR: Commissioner Devitt?
www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 3 1 MR. DEVITT: Aye. 2 MS. TAYLOR: Commissioner Anderson? 3 MS. ANDERSON: Aye.
4 MS. TAYLOR: Commissioner Dering? 5 MR. DERING: Yes. 6 MS. TAYLOR: Mayor Koch? 7 MAYOR KOCH: Aye. Thank you. 8 MR. RANDOLPH: In regards
to the matter of 9 Christopher O'Hare, the owner of the property 10 located at 2520 Avenue Au Soleil, you will recall 11 that, at the last meeting, the Board of Adjustment
12 gave consideration to an appeal of the decision of 13 the administrative official as to whether or not a 14 variance was required to place a metal roof on a 15 single-family
structure. 16 After hearing, you made a motion indicating 17 that the applicant should advise the town as to 18 whether or not the property owner would allow the 19
town to select an engineer to attempt to verify 20 the report of the owner's engineer; and in the 21 event that those two engineers had a disagreement, 22 that those
two engineers could appoint a third 23 engineer and make a determination as to whether or 24 not this structure of this house would or would 25 not support a tile roof.
www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 4 1 Since that time, I have received a letter 2 from Mr. Rader, who is the property owner's 3
attorney, advising that the owner did not wish to 4 allow the town to select an engineer, under the 5 terms of the motion, as made. I think that, as 6 part of this
hearing today, we should hear 7 directly from Mr. Rader, if he is acting as the 8 representative today, as to that position, rather 9 than you hearing that from me. I think
we should 10 hear from him as to the owner's position in regard 11 to that. 12 This is a quasi-judicial hearing and I think 13 it would be appropriate for us to
incorporate, as 14 part of the Record of this proceeding, the minutes 15 of the last meeting, which are the minutes that 16 you just approved of April 13th, 2012. But I
17 think it would be appropriate, Mr. Mayor, for us 18 to hear from Mr. Rader first, in regard to his 19 client's response to the town's request. 20 MAYOR KOCH:
Okay. 21 MR. RADER: Good morning, Mayor, 22 Commissioners, Mr. Thrasher, Mr. Randolph. 23 Before I answer that question or explain my 24 client's position,
I would like to at least make 25 some points of some questions to pose and points www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 5 1 of clarification
I think that came out of last 2 month's meeting. 3 The first of these is I think the motion was 4 made that allowed, before making the decision on 5 the variance
appeal that we had before the 6 commission, to allow -- my client to allow the 7 town's engineer to test my client's engineer's 8 certification; and if they disagree, then
have a 9 third engineer come in. 10 The first question we had is who is paying 11 for these engineers? And the code calls for one 12 engineer certification, but
if there is a second 13 engineer, a town engineer and they disagree, then 14 the third engineer, who is paying for the other 15 two engineers? 16 Secondly, if they
agree with our engineer, 17 the town's engineer agrees, and we, then, have 18 satisfied our two points of Code Section 71.872 in 19 that we have provided -- we then have
a re-roofing 20 application, we provided engineer certification, 21 which is then verified by the town, how long will 22 it take the town to come up to their obligation
23 under 71.872, which is to tell us what type of 24 roof, metal roof is appropriate for this 25 structure, in the neighborhood? www.reifkingwelch.com (877) 291-DEPO (3376)
REIF KING WELCH LEGAL SERVICES 6 1 Then, if the town, if they disagree, suppose 2 the second engineer and third engineer disagree 3 with my client's engineer, for whatever
reasons, 4 my client's engineer feels that it's unsafe for a 5 concrete tile roof, the town's engineer and this 6 third engineer say it can handle it, the town 7 forces
my client to put on a concrete tile roof. 8 A year or two goes by, the roof fails. Who takes 9 liability? Is the town going to accept liability 10 for forcing my client
to put on a concrete tile 11 roof, which is against my client's engineer's 12 opinion? 13 And then, fourthly, is the town hereby 14 putting an extra condition on
the code? The code 15 says, in instances where there is re-roofing and a 16 certification by the applicant, the town is to 17 provide what metal roof is appropriate for
the 18 structure, in the neighborhood. The town now says 19 there is a third condition for the applicant. The 20 third condition is you have to let our engineer 21
certify. Is this the town acting administratively 22 in making a decision regarding the code? 23 And then, we would really like to know, also 24 pose the question
to the town, in acquiring this 25 verification of our engineer's certification, is www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 7 1 there any other
precedent in the town's actions 2 where this is done, by a survey provided, being 3 required, according to certain parts of the code, 4 an applicant provides a certified
survey, the town 5 then says we don't believe it, we need to certify 6 it, we need to verify that. Are there any other 7 instances regarding any other professional 8
certifications for the town? 9 And to summarize my client's decision, I 10 think he does not want to allow the town to have 11 their engineer come in and verify his
engineer's 12 certification. And there has been some question 13 that it is unreasonable. We would like to explain 14 why that is not only very reasonable for my client
15 to take that position. 16 The reason why is we have the goalpost 17 moving, here. Back on November 15th, he asked the 18 town, can we put on a metal roof?
The town's 19 response, absolutely not; no metal roofs in the 20 town of Gulf Stream, period. 21 Then, when we find the exception in the code, 22 we approached
the town again. The goalpost moves 23 because we say, well, there is an exception here. 24 Can you please approve a metal roof? Can you say 25 this metal roof is appropriate?
And the response www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 8 1 is no, a variance is required, and once you apply 2 for a variance, then our
engineers can inspect the 3 structure. 4 Then, we come to the hearing last month and 5 the town says, well, we're not saying you're wrong 6 in your interpretation
of the code, but we don't 7 think metal roofs are desirable in the Town of 8 Gulf Stream. The goalpost moves back. 9 Then, we get a motion that says, and approved
10 by the commission, that says we will not even 11 consider whether or not your variance is required 12 until you allow our engineer to verify our 13 certification.
Again, the goalpost moves out even 14 more. 15 What we have here is the town consistently 16 moving the goalpost. This has caused my client 17 extreme angst,
because what happens if we provide 18 an engineer to verify our certification? The town 19 is now going to decide -- the town never said, the 20 commission never said,
well, if you do this, the 21 verification is not required to have a metal roof, 22 but the town says we'll decide after you do that. 23 We have seen, lately, that the
commission, 24 itself, has defended its own positions with other 25 applicants regarding other issues, by saying we www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH
LEGAL SERVICES 9 1 did everything by the book. My client is no 2 different. What he has offered to do is what the 3 code provides; no more, no less. So, why should 4
he be held to a higher standard than the town 5 itself, regarding this code? 6 I think I'm pretty much open to take any 7 questions. I do have a chronology we
can go 8 through to explain in more detail how this 9 goalpost has shifted, but I'm here to really take 10 any questions the commission might have as to my 11 client's
position. Or we can have even some 12 answers on the Record as to our questions. 13 MR. RANDOLPH: Before we go forward, Mr. 14 Mayor, it is my understanding, though,
that your 15 client, regardless of the answers to the questions 16 that you raised at the beginning, has made the 17 determination that he will not allow the 18 engineer's
certification to be tested by the town; 19 isn't that correct? You have already advised us 20 of that fact. 21 MR. RADER: Yes, it's because of this 22 changing
goalpost -23 MR. RANDOLPH: So, the-24 MR. RADER: -- and these unanswered 25 questions. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
10 1 MR. RANDOLPH: So, the answers to those 2 questions are really irrelevant in regard to your 3 client's decide because he has already made that 4 decision.
5 MR. RADER: We never had any answers to those 6 questions. It was not evident at the last 7 hearing. If we had the answers to those 8 questions, it would really
help, go a long way to 9 be able to sit down with my client-10 MR. RANDOLPH: Did you ask those questions at 11 the last hearing? 12 MR. RADER: No, these
are questions that have 13 arisen. Well, basically, you and I had some 14 discussions after that last hearing where we put 15 forth the question about the liability issue.
16 That is the biggest issue. 17 MR. RANDOLPH: Right. But I mean you're 18 raising questions today that have not been raised 19 in front of this commission before,
yet your 20 client has already made the decision that he does 21 not with the town to come in and test the accuracy 22 of your engineer? 23 MR. RADER: Without
the answers to these 24 questions, no, he is not. 25 MR. RANDOLPH: How long? We have had since www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
11 1 the last meeting to have asked those questions and 2 have them answered; and yet, your client has, 3 without the answers, has still made the decision 4 not to allow
the town to test the accuracy of the 5 report. 6 MR. RADER: Because we are coming to a 7 hearing today to answer why my client will not 8 allow the town to come
in and verify my client's 9 engineer's certification. 10 We have asked many times, I think four or 11 five times, at the last hearing. The issue was 12 what we
appealed. We have appealed the decision 13 that a variance is required. We think Section 14 71.782 is quite clear; a variance is not required. 15 If the town wants
to address the separate 16 issue as to the verification, verifying our 17 engineer's certification, that is a separate 18 issue. We appealed only the decision that a 19
variance is required, and that is what we are 20 still waiting for, and we have had other 21 conditions put on us which we are not willing to 22 accept. 23
MR. RANDOLPH: Let me just say, Mr. Mayor, 24 one more thing, and I don't want to dominate this, 25 but I just want to speak to the accuracy of at www.reifkingwelch.com (877)
291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 12 1 least one of these statements about what you did 2 at the last hearing. 3 I believe the town commission was very
clear, 4 at the last hearing, that you are entitled to a 5 variance for a metal roof, subject to your meeting 6 the conditions of the code, and those conditions, 7 under
the code, were to get an engineer's 8 certification that the structure would not support 9 a tile roof, which you did. 10 However, they have indicated, based upon 11
other information that was presented at the 12 hearing that cast some doubt on the engineer's 13 report, that it would be reasonable to allow the 14 town to just test
the accuracy. 15 So, that is the issue and that is why they 16 decided that they could not make a determination 17 as to whether you needed a variance until they 18
learned what your client was willing to do in 19 regard to that particular matter. And that is 20 what is before this commission today. 21 Now that your client
has refused to allow the 22 town to test the accuracy of your engineer's 23 report, the matter is still in front of the 24 commission as to whether or not you need a 25
variance. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 13 1 MR. RADER: Same as we asked last week, it is 2 basically the town is putting
a requirement on us 3 that is outside the code, and we have asked to 4 keep this a separate issue. We wanted the town to 5 decide, is a variance required? 6 The
town is putting, casting doubt on us for 7 reasons we don't know why. When asked, you said 8 the town has cause as to why, you say the town 9 suspects, if the town has
reasons for why it 10 suspects our engineer's certification. I mean 11 some members of the commission said, well, his 12 roof has been on there for 35 years; why can't
it 13 now still handle it? We brought evidence at the 14 last hearing that Broward County has a new code 15 that every multi-family building over 40 years has 16 to
be re-inspected. 17 When you get to 35 years like this building, 18 you get to the point where materials start to 19 fatigue and are not able to support structures.
20 And you also have codes which are getting more 21 stringent. We put that into evidence at the last 22 hearing. 23 But we ask if you have some cause, we ask
you 24 to give us that cause as to why you don't think 25 our engineer's certification is accurate. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
14 1 And the commission's motion was not -- we 2 know that some commissioner's said, well, if you 3 allow our engineer to do this, it's a done deal, 4 but that
is not the motion that was made. The 5 motion says, "We will defer this and not make a 6 decision until you provide our engineer the 7 opportunity to verify your certification."
8 We feel that is adverse to the code. That is 9 not what the code says. The code is very clear. 10 We provided you with certification; we should be 11 able to
apply and receive a metal roof. If you 12 wanted to add to that question the veracity of our 13 engineer's certification, that's another point and 14 it has to be made
very clear. The town has 15 coupled the two together, and that is why my 16 client is refusing to allow the town to verify the 17 certification. 18 MR. RANDOLPH:
Well, I think now is the 19 opportunity if the town has any questions that it 20 wishes to ask Mr. Rader in regard to this, they do 21 so. 22 MAYOR KOCH: All
I've got as a question is, 23 does your client, if he could, if the roof were to 24 hold the roofing that there is now, would he 25 prefer that over the metal roof, or does
he www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 15 1 really, really want to have the metal roof? 2 MR. RADER: I think we put that into the
3 Record last time. My client is not set on a metal 4 roof. We don't know -- it came from the 5 contractor. Mr. Thrasher said, well, he wants a 6 metal roof, now;
he doesn't want a concrete and 7 tile. 8 My client would love to have a concrete and 9 tile roof, but the engineer's certification says, 10 no, it will not handle
it. He would like either 11 shingle or shake. He is not set on a metal roof, 12 but shingle and shake are specifically, and 13 without exception, prohibited under the
code. 14 At least a metal roof is a light roof, which 15 allows for an exception, which my client needs. 16 That is why he came in and asked for a metal roof. 17
VICE MAYOR ORTHWEIN: I think we just asked 18 if the engineer could go in, our engineer, because 19 all engineers are kind of like -- you know, all of 20 them have
different reports. The house has held a 21 concrete roof for 35 years and maybe it is, you 22 know, deteriorated, but I don't think we can 23 accept just your engineer's
report. All we wanted 24 was our engineer to go in there and verify your 25 engineer's report. That was all we asked. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING
WELCH LEGAL SERVICES 16 1 MR. RADER: Well, there, again, is something 2 -- I know that is all the town asked, but it is-3 VICE MAYOR ORTHWEIN: And you have denied
it 4 now. 5 MR. RADER: But it is a monumental shift 6 because the code says you will provide A and B. 7 Now, the town is saying, no, the code we are now 8
going to set on everybody else is you provide A, 9 you provide B, and you provide C. 10 Now, what happens if you-11 MR. RANDOLPH: You know I just want to say
I 12 don't think you're accurate. I think the code 13 simply indicates that you provide A, but that 14 doesn't mean that the town has to accept A without 15 question.
16 Your engineer's report, which should be made 17 a part of the Record, says, "To the best of my 18 knowledge, this structure will not support a tile 19 roof."
20 I think, on the basis of that, the town has 21 the right to -- I think Mr. Thrasher has some 22 questions that he would like to ask. 23 MR. RADER: Yes,
sir? 24 MR. THRASHER: Mr. Rader, could you tell me 25 if your client has spoken to any other structural www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL
SERVICES 17 1 engineer in regards to the integrity of the roof 2 at 2520 Avenue Au Soleil? 3 MR. RADER: At this time, I don't know. I 4 really have knowledge
whether he has or has not 5 received an opinion from another engineer. 6 MR. THRASHER: Do you have or do you have 7 knowledge of any supporting documentation to Mr.
8 Loom's December 14th engineering report? 9 MR. RADER: I do not have possession or have 10 seen any of that supporting information. I just 11 know that Mr. Loom
had looked at supporting 12 information. I think he even inspected the site 13 and came up with this. 14 MR. THRASHER: May I read into the Record Mr. 15 Loom's
engineering report, dated December 14, 16 2001, to Chris O'Hare, 2520 Avenue Au Soleil, Gulf 17 Stream, Florida 33482. 18 It is in regards to the O'Hare residence at
19 2520 Avenue Au Soleil, in Gulf Stream, Florida. 20 "Dear Mr. O'Hare, On December 13th, 2011, I 21 inspected the existing roof frame you have at the 22 referenced
address. 23 The existing roof framing will not support 24 the design load of a concrete or clay tile roof. 25 The lightest roofing system possible is needed. I www.reifkingwelch.co
m (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 18 1 certify, to the best of my knowledge, belief, and 2 professional judgment that the referenced roof 3 framing will
not support a tile roof. 4 If I can be of further service, please call. 5 Signed and sealed by Mr. T.E. Loom" Is that 6 correct? 7 MR. RADER: Correct. 8
MR. THRASHER: That is his report. 9 I have also provided to you a copy of a 10 revision form, City of Delray Beach. The Town of 11 Gulf Stream received this
November 15th, 2011, 12 approximately 30 days prior to Mr. Loom's 13 certification. 14 And in that, the explanation of the revision 15 reads: "Customer wants to
change to metal roof." 16 It does not refer to any need and requirement 17 because of the roof structure. I know you think 18 that is a moving target, but it does
not refer to 19 it at that time. 20 And I would like to ask Rita, I'm not sure if 21 she has been sworn in, a question in regards to 22 this permit revision. 23
MR. RANDOLPH: Do you swear to tell the 24 truth, the whole truth, and nothing but the truth, 25 so help you God? www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING
WELCH LEGAL SERVICES 19 1 MS. TAYLOR: I do. 2 MR. THRASHER: Ms. Taylor, could you tell me 3 what the conversation was with the contractor, the 4 roof contractor,
I believe her name was Diana, in 5 regards to her providing you this form as a 6 revision to the already permitted concrete roof? 7 MS. TAYLOR: She said when she presented
it, 8 that the owner had decided that he wanted to have 9 a metal roof and the revision was for the previous 10 application that had been submitted, several 11 months
ago, I think, for the concrete tile roof. 12 MR. THRASHER: And to your knowledge, was a 13 concrete tile roof permitted by the Town of Gulf 14 Stream? 15
MS. TAYLOR: It was permitted. It was 16 permitted by the city -- or the building 17 department in Delray Beach, and she did go on to 18 say she was wondering why they
hadn't been told to 19 go ahead and lay the tile because the underlay had 20 been on for some time, and that's when they 21 received the revision form to go to metal. 22
MR. THRASHER: Thank you. One final 23 question, Mr. Rader. 24 Is it correct to say that your client became 25 aware of the existing roof condition as a result
www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 20 1 of Mr. Loom's technical report? 2 MR. RADER: No. 3 MR. THRASHER: No? 4
MR. RADER: It is quite evident you are 5 asking questions probably proffered by your 6 attorneys. Let me answer-7 MR. THRASHER: Excuse me. 8 MR. RADER:
Let me answer the question my 9 way. 10 MR. THRASHER: That is not an assumption that 11 is correct. 12 MR. RADER: Excuse me, you made assumptions, 13
too. You made an assumption that Diana was the 14 contractor. She is not the contractor. She is 15 their contact person. 16 The contractor, I think, who is of
record is, 17 I can't even pronounce his name, Mr. Meroni (ph.) 18 and it is for ROOFCO. And she is not -- she is 19 the contact person, so what she says I think is 20
irrelevant. 21 You're bringing up referrals to timelines on 22 December 14th, and that's because I told Mr. 23 O'Hare you had better get something in writing. 24
He knew before the 11th that there was a problem. 25 He became concerned and contacted Mr. Loom. Mr. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
21 1 Loom gave him a verbal. 2 I said you had better, and after it was 3 rejected, I said I think you better go back and 4 get something in writing, which he did
on December 5 15th. 6 We then approached the town in March saying 7 why can't we do this, and were told you can't do 8 it, period, because one code says it can't
be 9 done. What part of the code? And as we found out 10 last month, that part of the code doesn't apply. 11 MR. RANDOLPH: Just a couple more questions. 12 Is
your client here to allow us to -13 MR. RADER: No, he is not. 14 MR. RANDOLPH: -- test the accuracy of the 15 statements that you are making on his behalf? 16
MR. RADER: No, he is not. 17 MR. RANDOLPH: Is the engineer here that did 18 this report? 19 MR. RADER: No, he is not. 20 MR. RANDOLPH: Did
you proffer the engineer 21 at the last hearing, to allow the council to 22 question the engineer in regard to this report? 23 MR. RADER: I don't think we were asked
to 24 bring the engineer at the last hearing, and no, we 25 did not. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 22 1 MR. RANDOLPH:
No, you did not. 2 And despite the fact that the letter said, 3 "If I answer any other questions," the town has 4 not had an opportunity to ask or have these 5
questions answered by the engineer. 6 MR. RADER: The same thing would be to ask 7 why didn't, when we first approached the town on 8 February 15th, about putting on
a metal roof, did 9 the town tell us metal roofs are not allowed, 10 period. Why weren't we told about the exception? 11 To be fair about this, you know you're saying
12 we should proffer. Well, the town should have 13 proffered and said, well, we normally don't 14 approve it, we haven't approved one, there are no 15 metal roofs
in the city of Gulf Stream, which we 16 found out there may have been roofs in the city of 17 Gulf Stream but they have changed over, the town 18 used to have metal roofs.
19 But here, we should have been told, look, 20 there is a section of the code that allows you to 21 have them; why don't you go out and do this? We 22 were not
told that. We had to discover that on 23 our own. 24 And before we discovered it, my client went 25 and got the engineer to put what he said in www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 23 1 writing. That is why the date is December, 2 instead of the 11th of November. 3 MAYOR KOCH: All we want
to find out is can 4 it support the roof or not, but we want to ask the 5 engineer to verify, for us to have a chance to 6 verify his conclusion. 7 If we don't
get that, I don't think we can 8 move ahead with your request. 9 MR. DEVITT: You probably weren't told about 10 the exception to metal roofs because you had a 11
concrete roof that you were replacing. And again, 12 going back to the intent of the manual, one of our 13 major items was to prohibit metal roofs. Yes, 14 there was
that special written provision in there 15 for those that had roofs that were existing, that 16 couldn't later support and it would have been an 17 undue hardship to try
to have them restructure the 18 whole roof system to convert over to concrete and 19 tile. 20 MR. RADER: You're talking about two points, 21 here. 22
One is you're talking about the town being 23 able to put an upgrade on the condition of a home 24 without it being stated in the code that they can 25 do that. We found
that kind of extraordinary, in www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 24 1 the last hearing, Mr. Thrasher said, well, if 2 somebody comes
in for a re-roof or substantial 3 construction change, they have to be brought up to 4 the new code. There is nothing in the code that 5 says that. 6 But yet,
you were outlining what had 7 happened. You were on the committee and you said 8 it was there to allow people such as yourself who 9 want shake roofs -10 MR. DEVITT:
Yes. 11 MR. RADER: -- but could not support concrete 12 tile. If they were required to do so, we wondered 13 what would require you to do so because the town 14
clearly doesn't have the right to make you do it, 15 because we can't find it in the code. 16 But then, if it was just for people who had 17 shake and who had shingle,
why didn't it say for 18 those who have shake and shingle and their roof 19 cannot support a concrete tile, because we are 20 going to force them to do that? We are not
21 talking about chump change, here. We are talking 22 about 20-to $30,000 to re- engineer a structure on 23 a roof in order to handle concrete tile, if all it 24 has
handled shake or shingle for 30 years. 25 But then, also, it seems only logical that www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 25 1 roofs
deteriorate over time. They cannot take the 2 same loads that they take over time. That's why 3 you see a lot, and the codes are changed to put 4 higher wind- load requirements
on roofs. So, it 5 seemed perfectly logical that this was to apply to 6 anybody. It didn't say it was only meant for 7 people with shingle or shake. It is there across
8 all the categories. 9 MR. DEVITT: I agree that it is across the 10 categories, but again, you are coming from a 11 concrete tile roof and if you all feel confident
12 that the condition of the roof has deteriorated 13 such that it can no longer support it, it seems 14 like you would just let us go in there and confirm 15 your certification
and move on. 16 MR. RADER: Well, that is a question I put to 17 your attorney, Mr. Randolph, last month, and the 18 question still stands. We brought it here 19
tonight. My clients -- could I safely, if they 20 came with an engineer, two engineers, eventually 21 sat there and said we think it could take concrete 22 tile, so
you force him to put concrete tile. 23 Can you safely, without nightmares at night, 24 he would have his family in there, knowing that 25 one engineer told him no,
it can't. And if so, www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 26 1 and something happens, is the town taking 2 liability, because you're putting
requirements not 3 in the code on my client, forcing him to do 4 something that is not required in the code. 5 Who accepts responsibility? I don't think 6 you
are going to find an engineer -- excuse me, I 7 may be wrong, but I don't think you are going to 8 find an engineer, if he knows up front that he is 9 accepting liability
for that, who is going to 10 offer you an opinion. 11 MR. RANDOLPH: I think, Mr. Mayor, unless 12 there is any other questions, that you should go 13 ahead and
move on with consideration, and perhaps 14 ask, since this is a public hearing, see if there 15 are any other comments or questions from the 16 public. 17 MAYOR
KOCH: Anybody want to comment on this? 18 It's very quiet. 19 MR. RADER: No matter-20 MR. RANDOLPH: You know, this-21 MR. RADER: No matter what the
outcome is, I 22 just want to thank you for your hospitality. The 23 staff has been very responsive when I don't think 24 they needed to be. 25 MR. RANDOLPH:
And Will and I have had www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 27 1 several conversations in regard to this and he has 2 been very cordial,
too. 3 I mean let's make the Record clear, so you 4 know we are not being evasive, and so that your 5 record can be clear. 6 I think your position is that
you have 7 clearly met the exception as stated in the code, 8 that all it requires is a certification from an 9 engineer, and there is nothing in our code that 10 requires
that to be verified. 11 In regard to your other question, if you want 12 it on the Record, yes, you are entitled to a metal 13 roof without a variance. To answer the
question 14 that you had at the first hearing, you are 15 entitled to a metal roof without a variance, as 16 long as you meet the exception in the code, which 17 requires
you to provide the engineer's 18 certification. 19 So, that sets the record straight. That sets 20 the question that may be before a subsequent 21 court, in the
event you decide to appeal this by 22 cert. 23 I think the question before this commission 24 is, based upon those facts, do you consider a 25 variance to be required,
still, on the basis of www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 28 1 their refusing to allow the engineer's 2 certification to be tested. 3
And so, I think that is the issue before you. 4 And do you agree? I'm trying to frame your-5 MR. RADER: In a roundabout way, I do. 6 If I could just
pose two questions which I 7 think, if we could get answers to them directly, 8 would be helpful for everybody. 9 A clarification, first, on something you 10 said,
Mr. Randolph, is that your engineer is 11 saying "To the best of his knowledge." That last 12 sentence in that letter, that is standard 13 engineering language for any
certification that 14 they do. Every engineer, when he seals a set of 15 plans, it has that in the writing for the 16 certification. 17 And then, if the town is
going to take the 18 position that, for whatever reason, we suspect, 19 because we don't think this is common practice to 20 call out and challenge certifications put on
21 surveys or other engineering or legal opinions. 22 If, for some reason, they are calling an exception 23 here today and saying we have doubt about, we 24 think it
should be in the Record very specific as 25 to what cast that doubt, because we don't think it www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 29 1
is just the age of the home, because we showed how 2 the age of the home actually works in the favor of 3 the roof needing to go with something lighter 4 because they
deteriorate over time. 5 So, what is the real reason? Is it because 6 the town doesn't like metal roofs? It should be 7 on the Record as to what is the real reason
as to 8 why the town is putting the extra requirement on. 9 MR. RANDOLPH: Clearly, it is not because the 10 town does not like metal roofs, because it 11 provides
an exception in its code to allow for 12 metal roofs. 13 There is a record already before you, in the 14 last hearing, which set forth facts relating to 15 why
they question the engineer's report. Based 16 upon previous conduct of your client and based 17 upon what has been put in the Record today, that 18 your client has previously
stated, even before 19 getting an engineer's certification, that he 20 wanted a metal roof. 21 MR. RADER: But-22 MR. RANDOLPH: But I'm not going to -- let
me 23 not-24 MR. RADER: The certification-25 MR. RANDOLPH: Wait, stop for a minute. www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
30 1 MR. RADER: Okay. 2 MR. RANDOLPH: I'm not going to speak for 3 this commission, in that regard. I was just 4 trying to clarify the issue before them,
so that 5 you were satisfied and the commission as satisfied 6 as to what the specific issue is before them. 7 MR. RADER: If I could just clarify. Excuse 8 me,
if I could just clarify. My client never said 9 he wants a metal roof. 10 It was written on an application by the 11 representative of the contractor, coming in.
And 12 that's what -- they don't need to know all the 13 reasons why. If my client has talked to an 14 engineer, he doesn't have to tell the roofer, 15 look, go and
ask for it because we meet the 16 exceptions of this section, which my client didn't 17 even know about. 18 MAYOR KOCH: We can debate this back and 19 forth. 20
MR. RADER: I will put on the Record that my 21 client didn't say that. 22 MAYOR KOCH: Counsel, thank you. We are 23 going to support-24 VICE MAYOR
ORTHWEIN: I am still standing by 25 what we told you last month. The same thing; you www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 31 1 have another
engineer. I think we have -- we have 2 a doubt. I mean you have had a concrete roof on 3 the house for 35 years. So, I think it is up to 4 us to doubt your engineer's
report. 5 And all we ask is our engineer go in there 6 and I still stand by that. 7 MAYOR KOCH: Well, let's-8 MR. DEVITT: I would like to add, quickly,
9 that when people do submit plans and 10 presentations, and if there is something in there 11 that we, in our review, find we might want to 12 question, we do question
it, and we either -13 VICE MAYOR ORTHWEIN: Yeah. 14 MR. DEVITT: -- bring it up, or we sent it 15 out. And so, we don't just take everything on its 16 face
as it is presented, without any review or 17 reasonable backup or follow-through. 18 So, this is what this has come to, 19 unfortunately. It has come down to what
the 20 definition "and engineer certification" is. 21 That's the part that we are wondering. 22 MR. RADER: Well, you have the report and 23 what we are not hearing
is what specifically are 24 you objecting to the engineer's certification? 25 What specifically- www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES
32 1 VICE MAYOR ORTHWEIN: We just want our 2 engineer to go in there and -3 MAYOR KOCH: And verify. 4 VICE MAYOR ORTHWEIN: -- and verify it. 5
That's it. And then, we can move on, here, okay? 6 I think it's time to move on. 7 MAYOR KOCH: I think we have debated this 8 long enough. 9 Do we have to
have a motion or are we just-10 MR. RANDOLPH: No, you will have to have a 11 motion. I think we just need to hear what your 12 motion would be. 13 Remember,
the question is-14 MR. DERING: I will make the motion again. I 15 mean we have spent a lot of time on this. It is 16 one simple issue and we all know it is. We
17 articulated it very well. 18 I will make a motion that we deny the metal 19 roof, and, if they wish to apply for a variance, 20 so be it, on the basis that we
have not verified 21 the engineer's report and we have been refused to 22 be able to do that. 23 And by the way, I made the assumption we 24 would pay for our engineer
to come do that. 25 MR. RANDOLPH: Oh, sure. Still, the question www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 33 1 before you is whether
or not you sustain the 2 opinion of the building official, that a variance 3 is necessary or not, and I assume, from what I 4 have heard today, that, in the event you were
to 5 support the decision that a variance is needed for 6 a metal roof, that it is primarily for the reason 7 that the applicant has not satisfied that portion 8 of
the code which provides an exception to allow a 9 metal roof, because he has not allowed you to 10 verify the engineer's report. 11 MR. DERING: Correct. 12
VICE MAYOR ORTHWEIN: Correct. I'll second 13 that. 14 MAYOR KOCH: All right. Roll call. 15 MS. TAYLOR: Commissioner Orthwein? 16 VICE MAYOR ORTHWEIN:
Aye. 17 MS. TAYLOR: Commissioner Devitt? 18 MR. DEVITT: Aye. 19 MS. TAYLOR: Commissioner Anderson? 20 MS. ANDERSON: Aye. 21 MS. TAYLOR:
Commissioner Dering? 22 MR. DERING: Yes. 23 MS. TAYLOR: Mayor Koch? 24 MAYOR KOCH: Aye. Okay, thank you. 25 MR. RADER: Thank you. www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 34 1 (The proceedings were concluded at 9:30 a.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 www.reifkingwelch.com
(877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 35 1 CERTIFICATE OF REPORTER 2 3 STATE OF FLORIDA 4 COUNTY OF BROWARD 5 I, Paul Lisanti, Court Reporter,
certify that 6 I was authorized to and did report the foregoing 7 proceedings, and that the transcript is a true and 8 correct record of notes to the proceedings. 9
I further certify that I am not a relative, 10 employee, attorney, or counsel of any of the 11 parties, nor am I a relative or employee of any of 12 the parties' attorneys
or counsel connected with 13 the action, nor am I financially interested in the 14 action. 15 16 Dated this 30th day of May 2012. 17 18 ____________________________________
_ Paul Lisanti, Court Reporter. 19 Notary Public - State of Florida. Commission No.: EE 64590. 20 Commission Expires: 3-6-2015 21 22 23 24 25 www.reifkingwelch.c
om (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 1 A able10:9 13:19 14:11 23:23 32:22 absolutely7:19
accept6:9 11:22 15:23 16:14 accepting26:9 accepts26:5 accuracy10:21 11:4,25 12:14 12:22 21:14 accurate13:25 16:12 acquiring6:24 acting4:7 6:21 action35:13,14 actions7:1 add14:12 31:8
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8:16 9:1 9:15 10:9,20 11:2,7 12:18 12:21 14:16,23 15:3,8,15 16:25 19:24 21:12 22:24 26:3 29:16,18 30:8,13,16,21 clients25:19 client's4:19,24 5:7 6:3,4,11 7:9 9:11 10:3 11:8 code5:11,18
6:14,14,22 7:3 7:21 8:6 9:3,5 12:6,7 13:3,14 14:8,9,9 15:13 16:6,7,12 21:8 21:9,10 22:20 www.reifkingwelch.com (877) 291-DEPO (3376) REIF KING WELCH LEGAL SERVICES 2 23:24 24:4,4 24:15
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07-10-2052 1 19 ORDINANCE NO. 12/4 AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, AMENDING THE TOWN'S CODE OF ORDINANCES, TO CREATE SECTION
62-10, TO PROVIDE FOR REVIEW CRITERIA FOR THE CREATION OF SUBDIVISIONS IN THE TOWN, AT SECTION 66-1, DEFINITIONS, TO MODIFY THE DEFINITION OF BASEMENT, AT SECTION 70-27, DISTRICT DESCRIPTIONS,
TO INCLUDE ADDITIONAL CRITERIA FOR DISTRICT ELEMENTS, AT SECTION 70-70, FLOOR AREA CALCULATION, TO REVISE CALCULATIONS FOR BASEMENTS, AT SECTION 70-100, ROOF AND EAVE HEIGHT, TO CLARIFY
ENTRY FEATURE EAVE HEIGHTS, AT SECTION 7238, ROOFS, TO CLARIFY PERMITTED ROOF TILE STYLES, AT SECTION 70-51, MINOR ACCESSORY STRUCTURES, TO ALLOW WARWALB, AT SECTION 6E367, SWIMMING
POOLS, TO RESTRICT WATERFALL HEIGHTS, AT SECTION 66-369, DOCKS, TO CLARIFY PERMITTED BUILDING MATERIALS, AT SECTION 70-71, FLOOR AREA RATIOS, TO ADD INCENTIVES FOR SECONDSTORY SETBACKS,
AT SECTION 70-73, SECOND FLOOR AREA, TO MODIFY REQUIREMENTS FOR SECOND STORIES FOR SINGLE FAMILY HOMES, AT SECTION 70-187, TABLE OF DISTRICT STANDARDS, ROOFS, TO CLARIFY REVIEW PROCEDURES
FOR REQUESTED METAL ROOFS; PROVIDING FOR SEVERABIL1; PROVIDING FOR REPEAL OF ORDINANCES IN CONFLICT; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE TOWN
COMMISSION OF THE TOWN OF GULF STR M, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: Section 1. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 62, Subdivisions,
to add a new Section 6640, Criteria for Subdivision Review, to read as follows: Section 6240. Criteria fur Subdivision Review Any pgraon seeking to subdivide property withIn the limits
&the Town shall comply with the following criteria. The Architectural Review and Planning Board and Commission shall assure compllance with these criteria In determining whether the
proposed subdivision is permissible. A. Lots to be created by the proposed subdivision stall be consistent with the character of lots and parcels Immediate and adjacent to the proposed
subdivision. B. Proposed subdivisions shall protect the character of the Town b y inwrooratinl features that are compatible with, and complementary to. the preferred elements and overall
character of the neighborhood district In which they are located including, but not limited to, oarcel size. parcel shape, access. 561-737-0186 Lire 1 11:52.69 a.m. 07-10-2012 2^9 topography,b
rms and buffers and landscaping and encourage the orderlyand aesthetic de ppment of the wn. C. Proposed siibdivisions shall not create any non-confirming structures or lots, without
specific approval from the Town Commission. D. Proposed Proposed bdjvisions shall protect and conserve the value of lap buildings, and Im rovements and minimize conflicts among uses
of land and buildings. E. Applicants for proposed subdivisions shall ensure the adeouate and efficient provision of public faciiltles, such as transportation. notable water supplv wastewater
collection and re tment.drainage, surface water management solid waste, arks and recreation, are available concurrent with impacts of development. F. Pro os d s ivi i ns shall avoid
trafficcongestion on str ta, nd eliminate conflicts between pedestrian and vehicular movements. G. Streets and vehicular use easements shall provide safe aid efficient access for municipal
services, such as fir ,police and soli waste removal. As deadend streets and easement ending In a "T or "Y" turnaround shall not be permitted. H. Proposed subdivisions shall establish
reasonable standards of design and procedures for subdivisions and resubdivislons In orde tofurther the order la out and us of land, and to ensure proper legal descriptions of subdivided
land. I. Proposed s bdivisions shall ensure that new development will be required to bear Its fair share of the cost of providing the public facilities and serv lceE needed at the time
of development. J. Propp subdivisions shall prevent the pollutipn of air and water resources: ensuretlieadeauacv of surface water management facilities safeguard the groundwater resou
rces. and encourage the conservation, protection and management of natural resources. K. Clear-cutting of parcels shall not be permitted. A landscaping plan shall be provided so as
to assure the Dreservation of land: aping screening to the fullest extent Possible and toprovlde a mitigation elan for any landscaping which is removed. Section 2. The Code of Ordinances
of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article I, Section 66-1, Definitions, to read as follows: Section 66-1. Definitions. easement shall mean that portion
of the building which is below the finished floor elevation of the building and is located within the footprint of the first floor. A basement is not considered a story with regards
to the height measurement of a building, unless the ceiling of the basement is greater than three (3) feet above grade. The egu ro footage area of a basement completely under the first
floor footptlnt and having nooutside entrance shall be included as 40Q%75% of the building's Floor Area Ratio calculations. The area of a basement with an outside entrance shall be
included as 5b1-717-01N Lnt t. 5t:0 05-10-2112 +I of the buIIdlpR b Floor Mei Natal thkulaWs 8isemerRb shall LonForm to ail sethacs regulations for There shall be no entrances to such
basement on the sweet We and the exterior appearance of suds basement shall conform to the general architecture of the building Section 3. The Code of Ordinances of the Town of Gulf
Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article II, Single-Faml Section 7427, Dlstrkt to read as Sac. 7427. flm ,N. (cl The character of each and the town
as a whole, is further defined by the design elements and features listed as "pre erred" in other articles of the chapter. From the elements and Natures were found to represent the
existing and desired qualities that the town wishes to have reflected in new homes and re Mlans of existing homes. While the use of specific preferred design elements is not mandated
for new homes or rehabIlltrt projects, proposed projects must Incorporate design features that are compatible and complimentary to the preferred elements overall chathclm of the dIMrtandWine
9 cal Nth, aartxl shave. a ure and iandmeoing Wert of this chapter are therefore advised to closely study the chaMer dethiptns In this article as well as all of the preferred elements
found in other articles prior to Initiating project dmigns. Section 7 298 and 74299 also should be consulted fora further descriptionof existing development in the town and ead s district.
561-737-0188 Une 1 11:59 12 a.m. 07-10--D12 4i9 Section 4. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV,
Site Development Regulations, Section 7 70, Floor Area Calculation, to read as follows: Section Floor Area Calculation (6) Areas in basements shall ee be Included as 7* when it is located
completely under the first floor footprint and has no outside entrance. Areas in basements with an outside entrance shall be Included as 100%. Section 5. The Code of Ordinances of the
Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manual, Article V, Areawide Standards, Section 7 100, Roof and Eave Height, to read as follows: Section 70-100.
Roof and gave height (a) (4) Entry features are the front portion of the structure which provide door entrance to the dwelling. The height of the entry feature 4 measured from the finish
floor elevation to the upper portion of any balcony railings. Dutch gable or other such elements. Entry features, if used, should provide a sense of arrival, yet should not overpower
them or the remainder of the structure. The scale and proportion of entry features should be consistent with the rest the structure, varying just enough to provide a focal point to
the front of the house. (b) One story homes. (1) Preferred. Eave heights: From eight feet to ten feet six Inches (2) Discouraged Eave heights: Between ten feet six inches and 12 feet
(3) Prohibited Eave heights: Less than eight feet or greater than 12 feet 561-737-0186 Unet 1 2:00: P.M 07-10-2012 5 /9 (c) Two-story homes. (1) Preferred. Eave heights:: Beachfront
and Ocean West Districts - From eight feet to 12 feet for onestory portions All other districts — From eight feet to ten feet six inches for one-story portions (2) Discouraged. Eave
heights: Beachfront and Ocean West Districts — Between 12 and 14 feet for onestory portions Al other districts — Between ten feet six Inches and 12 feet six inches for one-story portions
Section 6. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article VII, Predominant Revival Style, Division 3, Gulf Stream-Bermuda
Style, Section 70-238, Roofs, to read as follows: Section 70-238. Roofs. (a) Required. Fla, white thru and thru, smooth, uncoated tile and excepttkaar gray slate iato rtylo tile may
be permitted on homes that are predominately Georgian or British Colonial with Bermuda influenms, flat way thru and thru, un-coated tile or slatlike tile may be permitted at the discretion
of Architectural Review and Planning Board and Town Commission through the Level Ill review process, subject to the Architectural Review and Planning Board and the Towi Commission making
a determination that such alternatives are appropriate for xhe neighborhood. S ion 7, The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream
Design Manual, Article III, Use Regulations, Section 70-51, Minor accessory structures, to read as follows: 551-737-0188 Linef 12:90:56 07-10-2012 6 15 Section 70-51. Minor accessory
structures. The following structures shall be considered as minor accessory structures in all five single family zoning districts subject to spedfic setbacks established in this chapter.
Any structure which is larger or more intensive shall be subject to the same setbacks as the principal structure. (2) Permanent recreation facilities, including but not limited to:
In-ground swimming pools and spas, including waterfalls, which shall not to exceed four feet in height. Section 8. The Code of Ordinances of the Town of Gulf Stream is hereby amended
at Chapter 66, Zoning, Article VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section 66-367, Swimming Pools, to read as follows:
Section 66-367. Swimming pools. (i) Waterfalls, minor accessory structures, shall not exceed 4 feet in height as measured from average finished grade9f_pmeertv. ik) No grotto shall
be permitted within any zoning district. A grotto shall be considered an artificial structure or excavation made to look like a cave or cavern. Section 9. The Code of Ordinances of
the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section
66-369, Docks, to read as follows: Section 66-369. (7) Materials and colors. Materials and colors of docks and ancillary structures shall be considered as part of architectural review
and planning board consideration and shall be maintained as approved. All docks shall be made of wood. No concrete docks are permitted. Section 10. The Code of Ordinances of the Town
of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70-71, Floor area ratios, to read as follows: S1 737-0188
LIne1 1 2:01:52 p.m. 07-10-2012 7,9 Section 70-71. Floor area ratios. G Incentive floor area ratio 1. For new structures in all districts, FAR may be increased to 0.33 for first 20,0Q0
snuare feet of lot area olus . 5 for portions above that if a minimum ten 10 foot setback is provided on an y multi-story portion of the structure. Theten t10) foot setback is In add
ition to the minimum reouired front setback. The structure must conform to all aoolicable setbacks. 1s; ^ =A : .Y:rt ..l yam._._. nin ^rmu a.anx.. f j Y r.., Y `^ 2. For alterations
to existing structures in all districts. FAR may be increased to 0.33 for first 20.000 square feet of lot area plus .25 for portions above that if architectural features are added to
the structure. The features may take the form of a porch or balcony. but must be located on the front side of the structure and must occupy a minimum of 150 SF. Section 11. The Code
of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70-73, Second floor areas, to
read as follows: Section 70-73. Two-story structures ll in order to limit the construction of bulkier homes with full second stories In districts with small to medium lot sizes, the
following restrictions shall be used: Gulf Stream Ocean Beachfront North/South Place au Core West Soled Maximum 4.70 x first 1 x first 3 x# # #leer .73.70 x first .7 . .70 x Second
floor area floor rea aces floor area first floor Floor Area .70 x first .70 first area floor area floor area The use of architectural design features to_ provide variation among two-story
, single family homes is required. One or more of the followinttfe$tures shall be incorporated within facades facing public or private roadways on any new twoostory, single family home
In all zoning districts. • Second-story setback (minimum 5' setback, in addition to ground level fro nt setback) • Front porch miinimu 561 -737-01N Line 1 12-.03;11 p.m. 07-10-2C12
Bi9 • Balcony (minimum 24 SF) • Arcade The Town Commission may waive this requirement within subsection tbll the applicant can demonstrate that these features are Inconsistent with
the home's architectural style and that the desired visual variation is provided through other measures. Section 12. The Code of Ordinances of the Town of Gulf Stream Is hereby amended
at Chapter 70, Gulf Stream Design Manual, Article VI, District Standards, Section 7 187, Table of district standards, to read as follows: Sec. 7 187. Table of district standards, 2.
Roofs l• Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in in stances of re-roofing of existing structures
based on subject to receipt by the town of an engineer's certification that the existing structure will not support a tile roof, said certification to append the engineer'; studDni
and report(s) supporting said certification and subject further to an engineer appointed by the town confirming said engineer's certification. Additionally, unpainted copper may be
used either as a decorative accent or on minor accessory structures. Section 13. Severability. If any provision of this Ordinance or the application thereof is held invalid, such invalidity
shall not affect the other provisions or applications of this Ordinance which can be given effect without the invalid provisions or applications, and to this end the provisions of this
Ordinance are hereby d eclared severable. Section 14. Repeal of Ordinances in Conflict. All other ordinances of the Town of Gulf Stream, Florida, or parts thereof which conflict with
this or any part of this Ordinance are hereby repealed. SgClon 15. Codification. This Ordinance shall be codified and made a part of the official Code of Ordinances of the Town of Gulf
Stream. Section, Effective Date. 561-737-0188 line !2:04.06 p.m 07-10-2012 919 This Ordinance shall take effect immediately upon its passage and approval, as provided by law. PASSED
AND ADOPTED in a regular, adjourned session on first reading this 8th day of June , 2012, and for a second and final reading on thls13th day of , 2012. Mayor Vice Mayor Commissioner
Commissioner Commissioner ATTEST: Clerk
.PDF
1FV589~1.PDF
1FV5894-appendix amended.PDF
application/pdf
FB01C67457BB5044901EB5D10DBAAB29@gulf-stream.org
EnUs
1GH3734-order petition denied on merits.PDF
.PDF
1GH373~1.PDF
1GH3734-order petition denied on merits.PDF
application/pdf
42A65DB1E62EAE418312C0B8A780C6DC@gulf-stream.org
EnUsAttached
Amended Petition for Writ of Certiorari
Amended Appendix
Order Denying Petition
Sally Matias Secretary to John C. Randolph, H. Michael Easley, and Keith W. Rizzardi
Direct Dial: 561.650.0458 | Fax: 561.650.5300 | HYPERLINK "mailto:smatias@jonesfoster.com"smatias@jonesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 | HYPERLINK "http://www.jonesfoster.com/"www.jonesfoster.com
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