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CODE ENFORCEMENT ORDER
TOWN OF GULF STREAM, FLORIDA
TOWN OF GULF STREAM,
Petitioner,
v
CHRISTOPHER O'HARE and
SHELLY O'HARE,
Respondent.
Case No. CE 1 -13
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Re: Violation of Sections 58- 138(b), 70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of
the Town of Gulf Stream.
Address: 2520 Avenue Au Soleil
Gulf Stream, Florida
Legal Description: PLACE AU SOLEIL LT 36
The Special Magistrate appointed by the Town Council to hear code enforcement cases for
the Town of Gulf Stream, in accordance with Chapter 162, Florida Statutes, has heard and
considered testimony from Bill Thrasher (Town Manager), Marty Minor, Christopher O'Hare
(Respondent), and Craig Stresau, has considered the evidence, and argument of counsel for each
party at the Code Enforcement Hearing held on the 21" day of March, 2013, and being otherwise
fully apprised in the premises, hereby makes the following FINDINGS OF FACT, CONCLUSIONS
OF LAW, and ORDER:
FINDINGS OF FACT
1. The Respondent, CHRISTOPHER O'HARE, was present at the hearing and represented by
Counsel.
2. The Town of Gulf Stream was present at the hearing and represented by counsel.
3. Respondent is the owner of the property located at 2520 Avenue Au Soleil, Gulf Stream,
Florida (Legal Description PLACE AU SOLEIL LT 36) (the "Property").
4. The Town Manager was notified of the potential violations on the Property by a Town
maintenance worker.
5. The Town received input from members the home owners' association after being notified of
the potential violations by the Town's maintenance worker.
6. The maintenance worker took photographs of the alleged violations on October 8, 2012.
7. The photographs show a line of lady palms planted across the driveway of the Property.
8. Thereafter, the Town Manager personally viewed the alleged violations on the Property and
consulted with Marty Minor, AICP, of Urban Design Kilday Studios, which had originally
drafted the Town's Code of Ordinances relating to the Design Manual.
9. Mr. Minor personally visited the Property on October 10, 2012, and took photographs.
10. On October 16, 2012, Mr. Minor provided an opinion to the Town regarding the plantings and
his opinion as to whether the plantings complied with the Town's Code.
11. On November 5, 2012, the Town issued a Notice of Violation regarding sections 58- 138(b),
70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of the Town of Gulf Stream,
providing thirty (30) days for compliance.
12. On January 17, 2013, the Town provided additional time for Respondent to comply, to wit:
January 31, 2013.
13. On February 25, 2013, the Town issued a Notice of Violation and Notice of Hearing providing
Respondent a final opportunity to comply on or before March 12, 2013
14. The Town Manager and Mr. Minor testified that plantings across the Property's driveway did
not comply with the "open front lawn" characteristic of the Place An Soleil District where the
Property is located because the home and front door are not open to, or viewable from, the
street.
15. Respondent testified that there are 31 "closed" front lawns in the Place Au Soleil
District.
16. The Town Manager testified that there may be some "closed" front lawns within Place Au
Soleil District due to having been "grandfathered in" prior to the changes in the Town's Code
regarding landscape design.
17. Mr. Stresau, a landscape architect, testified that he did not believe the Town properly defined
"open front lawn" and believed it could also mean that the lawn in front of the plantings and
behind the plantings was "open ".
18. The Town Manager testified that Respondent previously applied for a permit in November of
2011 to change the exterior color of his home and an exterior wall. The Town Manager
testified that the form on which Respondent signed provided for a list of different types of
projects requiring review, including those involving "landscape alterations ", which he testified
was indicated in Section 66 -81 of the Town's Code.
19. Respondent was not cited for failure to apply for administrative review or failure to get a
permit for landscaping changes under Section 66 -81.
20. Mr. Minor testified that if a plant were not on the list in Section 70 -150, then it could not be
planted.
21. The Respondent testified that he did not think the list in Section 70 -150 was exhaustive and did
not believe that non- listed plants were prohibited.
22. Mr. Stresau, a landscape architect, testified that if the Town's Code listing of examples in
Section 70 -150 of plants were an exclusive list, for which all other plants were prohibited, it
would be impossible to develop a landscape plan from that list for a homeowner.
23. Mr. Thrasher testified that certain properties were allowed to install plants not on the list in
Section 70 -150, but those landscape plans followed the proper permitting process and were
approved through that process.
24. The Respondent was provided proper notice of the alleged violations and the notice of hearing
in this case..
25. At the time of the hearing, the alleged violations continued to exist.
CONCLUSIONS OF LAW
1. Section 58- 138(b) of the Town's Code provides that It shall be unlawful for any person to
remove, move or add soil or fill to or from any parcel of land located within the town without
first having obtained a permit from the Town. The Town alleged that Respondent's removal of
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a portion of the driveway required obtaining a permit. Respondent argued that pursuant to
Code Section 2 -68, Jurisdiction, the Special Magistrate does not have jurisdiction to hear a
violation of Code Section 58438(b). Code Section 2 -68 provides the special magistrate with
jurisdiction and authority to hear and decide any alleged violations of the chapters and
ordinances listed therein. Neither Chapter 58, nor Section 58 -138, is listed as being within the
special magistrate's jurisdiction. Accordingly, the special magistrate does not have jurisdiction
to make a determination with respect to the alleged violation relating to Section 58- 138(6).
2. Section 70 -146 provides the Purpose of the General Landscape Standards and states that the
landscape architectural standards have been developed to reinforce the overall character and
image of the town environment with the primary objectives to include reinforcing the
community's identity. It goes on to state that the correct selection of plant material reinforces
the identity of various districts. Section 70 -32 provides for the characteristics of Place Au
Soleil District. The characteristics include "open front lawns ". The Town provided substantial
competent evidence that it has consistently interpreted "open front lawns" to mean the home
and front door being viewable from the street. The Town's interpretation is afforded deference
in this instance. Las Olas Tower Co. v. City offort Lauderdale, 742 So. 2d 308, 312 (Fla. 41,
DCA 1999). Accordingly, a violation of Sections 70 -146 and 70 -32 are found to exist.
3. Section 70 -150 provides for other plants used in the Town and lists "examples of materials
presently found in the Town" for ground cover, tall shrubs, shrubs, vines, palms, and trees.
The Town did not present competent substantial evidence that Section 70 -150 prohibits all
other types of plants not listed. The Code clearly states that the list of plants is a list of
examples of currently existing plants. Accordingly, a violation of Section 70 -150 is not found
to exist.
4. While both parties presented testimony and evidence regarding whether a permit was required
for the landscaping work, Respondent was not cited for violation of a code section relating to
failure to obtain a permit. Accordingly, this order shall not be construed as a determination of
whether the Respondent should have obtained administrative review, approval or a permit
relating to the plantings cited in this case.
It is the Order of the Code Enforcement Special Magistrate as follows:
The alleged violation relating to section 58- 138(b) is hereby dismissed without prejudice for
lack of jurisdiction.
2. Respondent shall comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of the
Town of Gulf Stream on or before the 20`h day of April, 2012, by removing the plantings in
the driveway and other areas that block the view of the home and return it to the previously
existing condition.
3. If Respondent does not comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of
the Town of Gulf Stream on or before the 19th day of April, 2013, a fine of up to two - hundred-
fifty- dollars ($250.00) per day may be assessed for each day the violation continues to exist.
4. A Fine Assessment Hearing will be held before the Special Magistrate on the 23 Id day of
April, 2013; at the Town of Gulf Stream, 100 Sea Road, Gulf Stream, Florida.
Respondent is not in violation of Section 70 -150 of the Code of Ordinances of the Town of
Gulf Stream.
A certified copy of this Order may be recorded in the Public Records of Palm Beach County, Florida,
and, once recorded, shall constitute a lien against the property upon which the violation existed and
upon any other real or personal property owned by the Respondent, pursuant to Chapter 162, Florida
Statutes for the original amount.
Upon complying, it is the responsibility of the Respondents to immediately notify the Gulf
Stream Code Enforcement Clerk at (561) 276 -5116 to request a reinspection of the property.
DONE AND ORDERED this 2 "d day of April, 2013.
TOWN OF GULF STREAM
/X_\�
BY- t/ L-
Special Magistrate