HomeMy Public PortalAboutConclusion DocsTOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
SCOTT MORGAN, Mayor
ROBERT W. GANGER, Vice -Mayor
JOAN K. ORTHWEIN
THOMAS M. STANLEY
DONNA S. WHITE
October 15, 2014
Constance J. Swift
2562 Avenue Au Soleil
Gulf Stream, Florida 33483
Dear Ms. Swift:
Telephone
(561)276.5116
Fax
(561)737 -0188
Town Manager
WILLIAM H. THRASHER
Town Clerk
RITA L. TAYLOR
Please find enclosed a copy of the Special Magistrate Order
related to your Case No. 4 -14 that was heard on October 1, 2014.
We have also enclosed the Town of Gulf Stream Code Enforcement
AFFIDAVIT OF COMPLIANCE which confirms that you have complied
with the order of the Special Magistrate.
If you have any questions, please call. Thank you for your
prompt compliance.
Very truly yours,
Rita L. Taylor
Town Clerk
100 SEA ROAD, GULF STREAM, FLORIDA 33483
TOWN OF GULF STREAM
CODE ENFORCEMENT
100 Sea Road
Gulf Stream, FL 33483
(561) 276 -5116
CASE NO. 4 -14 DA
LOCATION OF VIOLATION:
Constance J. Swift
2562 Avenue Au Soleil
Gulf Stream, Florida 33483
10 -14 -14
I, William H. Thrasher have personally examined the property described above and
(Town Official /Inspector) 70 -105 (3) &
Find that said property is (NOT NOW u compliance with Section(s) 70 -74 of the
Code of the Town of Gulf Stream as of the 13th day of Cctcber , 20 14
AfSant
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 14th day of
Oci -nhe?r . 20 _I by William H. Thrasher Town Official/Inspector,
who is personally known to me or who has produced a Florida driver's license as
identification who did /did not take an oath.
(SEAL) ";;•, Ri'A . TAYLOR
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I N C I D E N T S U M M A R Y
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T O W N H A L L . E N D .
RECEIVED
OCT 14 2014
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TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
SCOTT W. MORGAN, Mayor
ROBERT W. GANGER, Vice -Mayor
JOAN K. ORTHWEIN
THOMAS M. STANLEY
DONNA S. WHITE
October 23, 2014
Quinn Miklos
2562 Avenue Au Soleil
Gulf Stream, Florida 33483
Dear Mr. Miklos:
Telephone
(561)2763116
Fax
(561)737 -0188
Town Manager
WILLIAM H. THRASHER
Town Clerk
RITA L. TAYLOR
Please find enclosed the 3 pictures of the shed at 2562 Avenue
Au Soleil and the Certificate of Occupancy /Certificate of
Completion dated September 4, 2013, all of which you requested.
Mr. Thrasher asked that I mail them to you.
Very truly yours,
1Z1?4_Z
Rita L. Taylor
Town Clerk
100 SEA ROAD, GULF STREAM, FLORIDA 33483
ORDER
TOWN OF GULF STREAM
SPECIAL MAGISTRATE ORDER
CASE NO. 4-14
PROPERTY OWNER: CONSTANCE J. SWIFT
2562 AVENUE AU SOLEIL
GULF STREAM, FL
THIS MATTER came before the Special Magistrate for a hearing held at Town
Hall on October 1, 2014, at 2:00 p.m. The undersigned serves as Special Magistrate for
Code Enforcement matters.
FINDINGS OF FACT
1. The Statement of Violation and Notice of Hearing and the subsequent Notice
of Hearing for the postponed hearing date of October 1, 2014, were properly
served.
2. The Town Attorney and staff were present. The Property Owner, her attorney
and witnesses were present.
3. The Property Owner and Town did not have any objections to the service of
the Statement of Violation and Notice of Hearing and subsequent Notice of
Hearing for the October 1, 2014, hearing at 2 p.m.
4. The Town and the Property Owner had ample opportunity to present their case
and defense through the questioning and cross examination of witnesses and
the presentation of documents. The hearing lasted for four hours.
5. The Town charged the Property Owner with:
(a) failure to comply with a Condition of Approval that was included in
the Town's approval for an Addition built on the property. The
condition required that the Property Owner remove the shed that is the
subject matter of this hearing prior to obtaining a Certificate of
Occupancy for the Addition.
(b) The Town alleged the shed violated a Rear -Yard setback, required by
the Zoning Code.
(c) The Town alleged the shed was a "metal" shed, which is prohibited by
the Town's Zoning Code.
6. The Town established that the Condition of Approval to remove the shed was
proposed by Town staff, adopted by the Architectural Review Committee, and
included as a Condition of Approval by the Town Council for the project's
approval.
The Property Owner proceeded to build the addition and did not remove the
shed. The Property Owner was cited under the Zoning code for failure to
remove the shed and was denied a Certificate of Occupancy on the Addition
project.
8. It was undisputed by the Property Owner that the shed was located
approximately 1/3 on her property and 2/3 on the neighboring property. The
Property Owner did not provide any evidence that she had the permission of the
abutting property owner to encroach onto their property. The Property Owner
did not contest that approximately 2/3 of the property that the shed rests on is
not owned by them. The shed also encroaches into an FPL easement. The
Property Owner provided no evidence that she had the right to put a shed in an
FPL easement.
9. With respect to the alleged violation of the Rear -Yard Setback, the Property
Owner offered testimony from her husband, an architect, that under his
interpretation of the Town Code, the shed sits on a Side -Yard line. Even though
it would clearly be a violation of the Side -Yard setback, he argued, the Town
cited the Property Owner under the wrong set back provision (rear -yard instead
of side yard).
10. The Town Manager testified that he worked at the Town for approximately 15
years and his interpretation is that the lot line in question is the Rear- Yard line.
My reading of the Code is consistent with the Town Manager. Towns have the
discretion to make interpretation of their Land Development Codes as long as
they are reasonable and consistent with the Code language. The interpretation
of the Town Manager is both reasonable and supported by the Code.
11. The Property Owner offered testimony that there was another shed on the
property and that is was demolished sometime before 2004 without permit, and
when they built the new shed the Town Manager had suggested its location.
The Town manager denied he suggested the location. The Property Owner
suggested that a prior addition to their house showed the location of the shed
and the Town did not require the shed to be removed at that time. The Town
Manager testified he must have overlooked it at that time, but should have
required it to be removed then.
12. The Property Owner thought they had a permit for the shed but could not
produce it. They further stated they would "have had to have one, because it
was required." They had asked the Town for a copy of the permit. The Town
Manager indicated he could not find such a permit. The Property Owner
attributed the Town's lack of producing a permit to the Town's destroying of
old records in accordance with State law.
13. It stands to reason and is common sense that the Town would not issue a permit
to build a structure on property the applicant does not own, inside an FPL
easement. If such a permit was issued it would be void as clearly outside of the
power of Town staff. Therefore, I conclude that there is no valid permit for the
shed.
14. With respect to the violation alleging a Metal Shed in violation of Town Zoning
Code, the Property Owner suggests:
a) there is no definition of Metal Shed in the Town Code, therefore, we
should look to the Florida Building Code;
b) because the internal structure is wood -stud construction, it should not be
considered a wood shed.
15. The rule when interpreting an undefined term in a Code is to attribute the
common understanding of the terms used.
16. The Common understanding of the term "Metal Shed" is not found by looking
at the technical requirements of the Florida Building Code.
17. The Common understanding of a "Metal Shed" is one whose outside walls are
metal. This is also the definition adopted by Town administration in their
implementation of the Code. This is reasonable considering the language of the
Code.
The Town produced a picture of the shed that showed what appears to be a
metal surface on the sides of the shed. The Property Owner's witness refused to
testify that the outside walls were not metal; he offered an explanation that it
could be a metal composite or perhaps also contained fiberglass.
18. The Property Owner also suggested that promissory estoppel, selective
enforcement and constitutional issues might apply, all of which are outside of
my jurisdiction and are not addressed here.
NOW, THEREFORE, it is adjudged that:
The Town presented competent substantial evidence satisfying the Town's burden of
proof that established:
A. The Property Owner violated the requirement to remove the shed, which was a
valid and binding part of the development order to construct the addition.
B. The Property Owner violated the rear setback requirements of the Town Code and
placed the shed on and over the property line onto someone else's property.
C. The Property Owner's shed violated the Town Code provision prohibiting "Metal
Sheds ".
IT IS HEREBY ORDERED THAT the Property Owner shall correct the foregoing
violations within sixty (60) days. If the violations are not corrected in 60 days, a fine is
hereby assessed of $100 per day for each day the violations continue thereafter.
I RESERVE RULING on the imposition of Administrative Costs.
NOTE: It is the responsibility of the Property Owner to contact the Town when they
believe compliance has been achieved to request a re- inspection.
DONE AND ORDERED this l day of Octobei, 2014
ar}- .Brandenburg, Special Majistrate