HomeMy Public PortalAboutSec 14.FINE ASSESSMENT /STATUS
MAGISTRATE OF THE TOWN
A.M. IN THE C944ISSION
FLORIDA.
HEARING TO BE HELD BY THE
OF GULF STREAM ON TUESDAY,
CHAMBERS OF THE TOWN HALL,
• ela u.•
CODE ENFORCEMENT SPECIAL
APRIL 23, 2013 AT 10:00
100 SEA ROAD, GULF STREAM,
If
I. Call to Order.
II. Failure to Comply with Order of Special Magistrate
A. Case No. CE #1 -13: Christopher O'Hare
2520 Avenue Au Soleil, Gulf Stream, Florida
1. Planted landscape material across front lawn and driveway
destroying the 'open front yard" district characteristic
of Place Au Soleil listed in Section 70 -32, such characteristics
reinforcing the identity of various districts per Section 70 -146,
and was not removed and returned to the previously existing
condition by April 19, 2013 as ordered by the Special Magistrate
of Town of Gulf Stream
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FINE ASSESSMENT /STATUS HEARING TO BE HELD BY THE CODE ENFORCIIAENT SPECIAL
MAGISTRATE OF THE TOWN OF GULF STREAM ON TUESDAY, APRIL 23, 2013 AT 10:00
A.M. IN THE COlVMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM,
FLORIDA.
HMI It. 1
I. Call to Order.
II. Failure to Ccmply with Order of Special Magistrate
A. Case No. CE #1 -13: Christopher O'Hare
2520 Avenue Au Soleil, Gulf Stream, Florida
1. Planted landscape material across front lawn and driveway
destroying the "open front yard" district characteristic
of Place Au Soleil listed in Section 70 -32, such characteristics
reinforcing the identity of various districts per Section 70 -146,
and was not removed and returned to the previously existing
condition by April 19, 2013 as ordered by the Special Magistrate
of Town of Gulf Stream
SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY THE TOWN OF
GULF STREAM SPECIAL MAGISTRATE WITH RESPECT TO ANY MATTER CONSIDERED AT THIS
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.
F.S.S. 286.0105
FAX Cover Sheet
Attny. Roeder
Phone:
Fax Phone: 866- 610 -6090
Date: 4 -4 -13
Number of pages including cover sheet: 6
FROM:
Rita Taylor, Town Clerk
Phone: 561- 276 -5116
Fax Phone: 561- 737 -0188
IREMARKS: o As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP
I have enclosed a copy of the findings from the Special Magistrate
regarding the O'Hare Case # 1 -13. We are hand delivering this
info to the O'Hare residence today.
The Office of the Special Magistrate have advised they are sending
the exhibits to me by U.S. Mail. I will let you know when I get
them.
Originals to Follow by Mail: Yes
CC:
Fax Phone:
No x
Date /Time ` 04 -04 -2013 10:23:58a.m.
Local ID 1 561- 737 -0188
Transmission Report
Transmit Header Text
Local Name i town of gulf stream
This document : Confirmed
(reduced sample and details below)
Document size : 8.5 "x11 "
It is the Order of the Code Enforcement Special Magistrate as follows:
1. The alleged violation relating to section 58- 138(b) is hereby dismissed without prejudice for
lack ofjurisdiction.
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 day of April, 2011, by removing the plantings in
the driveway and other eras that block the view of the home and return it to the previously
existing condition.
3. ITRespondem does not comply with Section 70.146 and 70 -32 of the Code ofordinaoces of
the Town of Gulf Stream on or before the 19a day ofAprg, 2013, afire ofup to two- hundrtd-
RRy- dollars (5250.00) 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" day of
April, 2013, at the Town of Gull'Stream, 100 Sea Road, Gulf Stream, Florida.
5. Respondent is not in violation of Section 70 -150 of the Code of Ordinanecs of the Town of
Gulf Strea n.
A certified copy ofthis Ordermay 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
Storm fm the original amount.
Upon complying, it is the responsibility of the Respondents to immediately notify the Gulf
Stream Code Enforcement Clerk et (561) 276 -5116 to request a reinspecdon of the property.
DONE AND ORDERED this 2n0 day of April, 2013.
Post -ita Fax Note -7671
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No,
Job
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Start Time
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Line
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001
081
18666106090
10: 22:59 a.m. 04 -04 -2013
00:00:40
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4bbrevlations:
i5: Host send
PL: Polled local MP: Mailbox print
CP: Completed
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-IR: Host receive
PR: Polled remote RP: Report
FA: Fall
G3: Group 3
NS; Waiting send
M5: Mallboxsave FF: Fax Forward
TU: Terminated by user
EC: Error Correct
Date /Time r 04 -04 -2013 09:49: 59 a.m.
Local ID 1 561- 737 -0188
Transmission Report
Transmit Header Text
Local Name 1 town of gulf stream
This document: Confirmed
(reduced sample and details below)
Document size : 8.5 "x11 "
FAXCDvasheet (Date: 4 -4 -13
ht=—ba afP28 W including cova shoe : 6
Attny. Roeder Taylor, Town Clerk
Phone: LRita
561. 276 -5116
ex Phone: 866 -610 -6090 one: 561 - 737-0188
D As Requested o Urgent o FYI o For Your Reviaw o Reply ASAP
I have enclosed a copy of the findings from the Special Magistrate
regarding the O'Hare Case i 1 -13. We are hand delivering this
info to the O'Hare residence today.
The Office of the Special Magistrate have advised they are sending
the exhibits to me by U.S. Mail. I will let you know when I get
them.
to Follow by Mail:
CC:
Pax Phone:
Total Paaes Scanned : 6 Total Panes rnnfirmnd • 6
No x
Na:
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Remote Stailon
Start Tlme
Duration
Pages
Line
Mode
Job Type
Results
001
079
18666106090
09:45:35 a.m. 04 -04 -2013
00:04:07
6/6
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IHS
IC P72000
abbreviations:
IS: Host send PL: Polled local MP: Mailbox print CP: Completed TS: Terminated by system
IR: Host receive PR: Polled remote RP: Report FA: Fall G3: Group 3
N5: Waiting send M5: Mailbox save FF: Fax Forward TU: Terminated by user EC: Error Correct
fAXCDver Sheet
Attny.Randolph
Phone:
Fax Phone:
Date: 4 -4 -13
(Number of pages including cover sheet- 6
FROM:
Rita
Phone: 561- 276 -5116
Fax Phone: 561- 737 -0188
IREMARKS: ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP
I have enclosed a copy of the Special Magistrate's findings
in the O'Hare Case.
Originals to Follow by Mail: Yes
CC:
Fax Phone:
No x
Date /Time 04 -04 -2013 09:23:08 a.m.
Local ID 561- 737 -0188
Transmission Report
Transmit Header Text
Local Name 1 town of gulf stream
This document: Confirmed
(reduced sample and details below)
Document size : 8.5 "x11"
F/ Xcuver Sheet (Date: 4 -4 -13
Number ofpsges including cover shoo. 6
Attny. Randolph
Phone:
Rita
rnone: 561 - 376.5176
F81c Phone: 563- 737 -01gg
o As Requested0 Urgent o FYI o Fm Your Review o Reply ASAP
I have enclosed a copy of the Special Magistrate's findings
in the O'Hare Case.
I Originals to Follow by Mail: Yes
CC:
Aax Phone:
Total Paaes Scanned: 6 Total Pana< rnnHrmnri•A
No z
No.
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IRemoteStation 7777T3iartTlme
Duration
I Pages
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001
075
Jones foster PA
09:18:38 a.m. 04 -04 -2013
IHS
I CP14400
Abbreviations:
HS: Host send PL: Polled local MP: Mailbox print CP: Completed TS: Terminated by system
HR: Host receive PR: Polled remote RP: Report FA: Fall G3: Group
WS: Waiting send MS: Mailbox save FF: Fax Forward TU: Terminated by user EC: Error Correct
0
FACover Sheet
Marty Minor
Urban Design Kilday
one:
K Phone: 366 -1111
Date: 4 -4 -13
Number of pages including cover sheet: 6
FROM:
Rita
Phone: 561- 276 -5116
Fax Phone: 561- 737 -0188
IREMARKS: ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP
I have enclosed a copy of the Special Magistrate's findings
in the O'Hare Case.
)riginals to Follow by Mail: Yes
CC:
Fax Phone:
Nn X
Transmission Report
Date /Time 04 -04 -2013 09:27:26 a.m. Transmit Header Text
Local ID 1 561- 737 -0188 Local Name 1
This document: Confirmed
(reduced sample and details below)
Document size : 8.5 "x11 "
FAXCoversh,et
Marty Minor
Urban Design Kilday
Phone:
'Il '
town of gulf stream
bete: 4 -4 -13
�Nmnbaipeg�oding wva shave 6
Rita
ne: 361. 176-5116
Phone. 561- 737 -0188
o As Regnestedo Urgent o FYI o FwYoor Review o Reply ASAP
I have enclosed a copy of the Special Magistrate's findings
in the O'Hare Case.
to Follow
No
CC:
Far phone:
Total Pages Scanned : 6
Total Pages Confirmed : 6
No.
Job
Remote Statlan
Start Time
I Duration
Pages
Line
Mode
Job Type
Results
001
077
3661111
09:25:21 a.m. 04 -04 -2013
00:01:29
616
1
EC
HS
CP24000
Abbreviations:
H5: Host send
PL: Polled local MP: Mailbox print
CP: Completed
TS: Terminated by system
HR: Host receive
PR: Polled remote RP: Report
FA: Fall
G3: Group 3
WS: Waiting send
M5: Mallboxsave FF: Fax Forward
TU: Terminated by user
EC: Error Correct
CODE ENFORCEMENT HEARING TO BE HELD BY THE CODE ENFORCEMENT
SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON THURSDAY,
MARCH 21, 2013 AT 10:00 A.M. IN THE COMMISSION CHAMBERS OF THE
TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA.
AGENDA
I. Call to Order.
II. Case No. CE 1 -13: Christopher O'Hare, 2520 Avenue Au Soleil;
Removed portions of existing driveway without,first applying
for a permit in violation of Section 58- 138(b); planted
landscape material across the front yard, destroying the
"open front lawn" district characteristic of Place Au Soleil
listed in Section 70- 32(a); such characteristics reinforcing
the identity of various districtsper Section 70- 146(6); some
new plants not listed in Section 70 -150 thus not in keeping
with the character and image of the Town Environment
SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY
THE TOWN OF GULF STREAM SPECIAL MAGISTRATE WITH RESPECT TO ANY
MATTER CONSIDERED AT THIS 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.
F.S.S. 286.0105
r
MINUTES OF THE CODE ENFORCEMENT HEARING HELD BY THE CODE
ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON
THURSDAY, MARCH 21, 2013 AT 10:00 A.M. IN THE COMMISSION
CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA.
The Special Magistrate Lara Donlon called the hearing to order
at 10:00 A.M. She explained that the Town will present first,
will call witnesses and provide documents, photographs and other
evidence. She said any documents or photos must be shared with
the opposing side, objections can be made and she will rule on
those objections, but she said the formal rules of evidence do
not apply. Special Magistrate Donlon administered the Oath to
the following: Christopher O'Hare, Respondent; Fred Stressau,
Land Use Planner; Lou Roeder, Esq., Counsel to Respondent;
William Thrasher, Town Manager; Rita Taylor, Town Clerk; Marty
Minor of Urban Design Kilday Studios, Town Consultant; John
Randolph, Esq., Town Counsel.
Special Magistrate Donlon called Case No. CE 1 -13, Christopher
O'Hare, 2520 Avenue Au Soleil.
John Randolph stated that he represents the Town of Gulf Stream
Cand called William Thrasher, Town Manager, to testify. He asked
Mr. Thrasher to state his name, the length of his employment
with the Town of Gulf Stream, his duties as Town Manager and
about how he first heard of the alleged Code violations. Mr.
Thrasher said he has been Town Manager for the past 12 years and
part of his job involves enforcing ordinances and building
codes. He said Brien Dietrick, the Town's Maintenance
Supervisor, called to ask if he was aware of various landscaping
being installed at the subject property. Mr. Thrasher said he
drove by the property, observed the situation and concluded that
it was a landscaping project that was in violation of Code. He
said it was a massive amount of landscaping that included
various types of landscaping material installed in the entire
front section of the home and along the entire side property
line. Mr. Thrasher said he asked Mr. Dietrick to take photos,
the photos are dated October 8, 2012. Mr. Randolph submitted
the photos to Special Magistrate Donlon as an Exhibit. There
were no objections. Special Magistrate admitted a two -page
document with five photographs as Town's Exhibit #1.
Mr. Randolph asked Mr. Thrasher about the work done to the
driveway. Mr. Thrasher said the driveway had a cut approximate
3' wide running the entire width of the driveway, the concrete
was totally removed and plantings were placed in that area. He
said the impervious area was altered and, according to Code Sec.
66- 141(1)(f), a permit would have been required, and he said a
Level I Site Plan Review would also have been required. Mr.
Roeder objected, he said this is not a violation being heard
today. Mr. Randolph said he was trying to lay a predicate for
the Notice of Violation. He said Mr. Roeder was correct, and he
said he will not submit what was discussed, but he will submit
the Notice of Violation. The objection was noted.
Mr. Randolph asked Mr. Thrasher if he conferred with anyone
concerning the code violations observed. Mr. Thrasher said he
asked the Town's Consultant, Marty Minor of Urban Design Kilday
Studios, one of the original producers of the Code in the early
90s, for an independent opinion on the volume and type of
landscape on the subject property, and he said Mr. Minor
provided a written report and photos in his letter to the Town
dated October 16, 2012. He said Mr. Minor concluded that there
were code violations and he cited code sections throughout his
Report. Mr. Randolph submitted Mr. Minor's letter, report and
photos as an Exhibit. Special Magistrate Donlon admitted Mr.
Minor's letter to Mr. Thrasher dated October 16, 2011, including
his report and photos, as Town's Exhibit #2.
Mr. Thrasher said the First Notice of Violation, dated November
5, 2012, was prepared and hand delivered to Mr. O'Hare by a
police officer, the delivery notification is attached to the
Police Incident Report. Mr. Randolph submitted the First Notice
of Violation and the Police Incident Report with the Delivery
Notification attached as an Exhibit. Special Magistrate Donlon
admitted the First Notice of Violation dated November 5, 2012
and Police Incident Report with Delivery notification attached
as Town's Exhibit #3.
Mr. Randolph asked Mr. Thrasher to cite Code Sections that were
in violation as they relate to the driveway cut and landscaping
only, and the specific violation in regard to each Section.
With regard to the driveway cut, Item 3 of the Notice of
Violation, Mr. Thrasher cited Code Sec. 58- 138(b) which states,
"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 obtaining a permit from the Town." He said Mr.
O'Hare removed or moved soil to place landscaping in the
locations where the driveway was cut, along portions of the
front of the home, and along the side property line. Mr.
Thrasher said Mr. O'Hare did not obtain a permit from the Town
to do so. With regard to the landscaping, Item 4 of the Notice
of Violation, Mr. Thrasher cited Code Sec 70- 146(b)(1) and (4)
C
specifically because the landscape material installed does not
reinforce the identity of the Community and the applicable
zoning district, which is Place Au Soleil. Mr. Thrasher cited
Code Sec. 70- 32(a), under "Characteristics" which provides that
the predominant style is Bermuda with small to medium -size lots
and open front lawns. He said the violation is that the front
lawn is no longer open, and he said Mr. O'Hare altered his
driveway so that plantings could be placed in the front of the
home. With regard to Item 5 of the Notice of Violation,
referring to the Lady Palms and other species not listed as
appropriate or typical for Gulf Stream or Place Au Soleil, Mr.
Thrasher cited Code Sec. 70 -150. Mr. Thrasher said he first
thought this would qualify for a Level I, which he would have
the authority to approve, but he said it would have been
considered a Level II to be reviewed by the ARPB because of the
impact to the Community and other neighbors. He cited Code Sec.
66 -145 addressing procedures for submitting and processing
applications for Level I Architectural Site Plan Review. Mr.
Roeder objected saying that Respondent was not cited for a
violation of Code Sec. 66 -145. Mr. Randolph agreed, but he said
he was cited for not applying for a permit. He said he is
trying to establish what would determine the level of review if
Mr. O'Hare complied with Code and applied for a permit. Again,
Mr. Roeder objected. Special Magistrate Donlon noted the
objection and overruled the objection saying she would like to
hear the information to determine whether or not the process
applies.
Mr. Randolph submitted a copy of Code Sec. 66 -145 to Special
Magistrate Donlon as an Exhibit. Special Magistrate Donlon
admitted a copy of Code Sect. 66 -145 as Town's Exhibit #4.
Mr. Thrasher referenced Code Sec. 66 -141 addressing the
applicability of permits as they relate to Level I (minor
improvements) and Level II. He said Code Sec. 66- 141(2)(h)
addresses applications first thought to be a Level I, but
determined to be a Level II Architectural Site Plan Review by
the Building and Planning Administrator due to the development's
potential impact. Mr. Thrasher said he determined this to be a
Level II. Mr. Randolph referred to the Town's letter dated
January 17, 2013 and asked if the Town allowed time to comply
with the violations. Mr. Thrasher said the letter dated January
17, 2013 was written and signed by him and addressed to Mr.
Roeder, it was hand - delivered to Mr. O'Hare on January 21, 2013
by a Police Officer. Special Magistrate Donlon admitted Mr.
Thrasher's letter dated January 17, 2013 and the delivery
notification as Town's Exhibit #5.
Mr. Thrasher said his letter of January 17th was in response to
Mr. Roeder's email asking for the Town's expectations of
compliance. Mr. Thrasher read January 17th letter aloud, which
noted the violations and directed that the property be restored
to the condition that existed prior to unpermitted activities by
January 31, 2013. He said he issued a Notice of Violation and
Notice of Hearing dated February 25, 2013, which provided the
Code violations previously stated, the first date of inspection
of October 8, 2012, the First Notice of Violation dated November
10, 2012, and Notice to Correct Violations dated December 10,
2012. Special Magistrate Donlon admitted the Notice of
Violation dated February 25, 2013 as Town's Exhibit #6
Mr. Randolph asked Mr. Thrasher to read Item 4 of the Notice of
Violation that includes the code violations. Mr. Thrasher read
the violations of Code Sections 58- 138(b), 70- 32(a), 70 -146 and
70 -150. Mr. Randolph asked if compliance has been met to date
as a result of that Notice. Mr. Thrasher said it has not. Mr.
Randolph asked Mr. Thrasher if he visited and photographed the
property as late as this date and Mr. Thrasher confirmed that.
Mr. Randolph asked about the photos taken by Mr. Minor when he
C visited the property to complete his report. Mr. Thrasher said
photos were taken. Mr. Randolph referred to a Memo dated
November 7, 2012 from Marty Minor with photos of the property
attached, and he asked Mr. Thrasher if they accurately depict
the condition of the property as of this date. Mr. Thrasher
confirmed that. He asked if there is a photo depicting what was
done to the driveway. Mr. Thrasher said there is a photo of the
section of the driveway on the south side of his property. Mr.
Randolph asked what was behind the row of hedges. Mr. Thrasher
responded, "his house.^ Mr. Randolph submitted Mr. Minor's
November 7, 2013 memo and photos as an Exhibit. Special
Magistrate Donlon admitted Mr. Minor's memo and photos taken by
Mr. Minor as Town's Exhibit V.
Mr. Randolph asked if complaints were received from neighboring
property owners. Mr. Thrasher he received three written
complaints and also telephone calls from neighboring property
owners. Mr. Randolph shared an email chain concerning the
complaints with Mr. Roeder and submitted the email chain as an
Exhibit. Mr. Randolph referenced an October 5, 2012 email
complaint, Mr. Thrasher said it was from James Malone and he
read it aloud. The complaint referred to the landscape eye sore
on the O'Hare property and the incomplete roof. Mr. Randolph
referenced an October 10, 2012 email complaint, Mr. Thrasher
said it was from Agusto Titarelli, President of the Place Au
Soleil Homeowners' Association, and he said the complaint
referenced the incomplete roof on the O'Hare property and
suggested the Town is obligated to enforce the Code with regard
to the landscaping. Mr. Randolph referenced a January 2, 2013
email complaint from Quinn Miklos. Mr. Thrasher said Mr. Miklos
lives at 2562 Avenue Au Soleil, one block from the Mr. O'Hare's
property, and he is a Registered Florida Architect. He read the
email aloud, in which Mr. Miklos recommended that projects like
Mr. O'Hare's should go to the ARPB for review. Mr. Randolph
said Mr. Thrasher testified that if a permit were applied for,
this project would have gone before the ARPB for review.
Special Magistrate Donlon admitted the email chain as Towns
Exhibit #8.
Mr. Randolph asked if there is any information that will show
this property owner had notice that a permit was required before
undertaking the work done on his property. Mr. Thrasher said
Mr. O'Hare signed for a Level I Architectural Review and Site
Plan approval dated November 1, 2011 to change the exterior
color of his home and the exterior wall surface, and the paint
colors were approved. He said the permit was also to modify the
soffits and change from rough to smooth stucco on the exterior
walls. Further, he said the form provided a list of different
items of work to be done, the third item being landscaping
alterations. Mr. Thrasher said with landscaping included on the
list, he assumed Mr. O'Hare knew that at least a Level I permit
would be required. Mr. Roeder objected to Mr. Thrasher's
assumption. Mr. Randolph asked the Town Clerk to provide to Mr.
Roeder with a copy of the Level I Application and he submitted
his copy of the Level I Application as an Exhibit. Special
Magistrate Donlon admitted the Level I Application as Towns
Exhibit #9.
Mr. Randolph asked about Town communications that would indicate
to Mr. O'Hare that a permit would have been required for these
projects. Mr. Thrasher said Mr. O'Hare owns two properties in
Place Au Soleil and previously owned the home at 539 Middle
Road. He said newsletters are mailed to residents that provide
information such as the need to apply for permits when making
changes to their property, or at least to inquire with Town Hall
regarding permits. The March 15, 2011 newsletter stated: "In
order to preserve its unique community character the Town of
Gulf Stream has adopted architectural guidelines in a Design
Manual. These guidelines address all significant changes to the
exterior appearance of your home including different roofing
materials, paint color, statues, mailboxes and major landscape
changes." Mr. Thrasher also referenced previous newsletters
that stressed the importance of permitting when making changes
to property. Mr. Randolph submitted the newsletters as a
Composite Exhibit. Special Magistrate Donlon admitted the
newsletters as a Composite of Town's Exhibit #10.
Mr. Randolph asked Mr. Thrasher if he recently visited the
neighborhood adjacent to Mr. O'Hare to determine the character
of the neighborhood and what compliance with Code means. Mr.
Thrasher confirmed that saying on March 19, 2013 he took 15 - 20
photos of properties in Place Au Soleil, specifically in the cul
de sac where Mr. O'Hare's properties are located, including the
subject property of 2520 Ave Au Soleil. He said they include
examples of recent Level III construction and full landscaping
plans, indicating open landscaping plans that exist in the
majority of homes in the cul de sac, with the exception of two
that were not permitted, but grandfathered in. Mr. Thrasher
said there is a map with the photos that includes a Legend at
the bottom and Mr. O'Hare's property is highlighted in yellow.
Special Magistrate Donlon admitted the map and photos as Townes
Exhibit #11.
Mr. Randolph asked Mr. Thrasher if there is a specific property
he looked at with a comparable situation as it relates to how
the Town enforces Code. Mr. Thrasher referred to 2745 Ave Au
Soleil which is also identified on the map. He said he Googled
a photo showing the property prior to landscaping changes, for
which the property owner obtained a permit, and a photo of the
property after the work was complete showing that the owner
complied with the section of code previously discussed with
regard to open front yards. Mr. Thrasher said the before photo
shows a landscape buffer around the front of the home making it
not open to view. He said the property owner applied for a
construction permit and was told he would be required to remove
the high hedge in front to make the home visible, and he said
the after photo indicates that the property owner complied. Mr.
Thrasher said the front landscape buffer would not have been
cited on this property because it was grandfathered in, but he
said because they applied for a construction permit, they were
required to comply with the current Code. Special Magistrate
Donlon admitted the photos as Town's Exhibit #12.
Mr. Thrasher said the Town is asking the Special Magistrate to
order the property at 2520 Ave Au Soleil to be returned to its
original state prior to the subject landscaping and driveway
changes. He said the Town has asked the property owner to do
so, he has not complied and, based on the volume of
communication with the property owner, it appears he refuses to
comply.
Special Magistrate Donlon asked Mr. Roeder, the Respondent's
attorney, if he would like to ask questions of Mr. Thrasher.
Mr. Roeder said he would like to ask questions during his
presentation, he understood that the rules of evidence were
relaxed in this proceeding. He said for the record they have
been asking the Town for weeks for evidence and have received
only 10% of what was submitted today. In addition, he said
ordinances were referenced that were not called out as charges.
To clarify, Mr. Roeder said the term "open front lawn" is used
in the Notice of Violation and was used a multitude of times
today, but he said nowhere is the term defined and he asked Mr.
Thrasher to define how the term is used in the Code and how he
would define it. Mr. Thrasher said it may not be specifically
defined, but the fact that one can or cannot see the front of
the home would be an indicator whether or not it conforms to the
Code reference to open front yards. Mr. Roeder said there was
evidence presented today, including photos deemed to reference
open front yards, yet you cannot show anywhere in the Code that
defines the term. Mr. Randolph objected. Special Magistrate
CDonlon noted the objection and asked Mr. Thrasher to answer.
Mr. Thrasher said he does not know of a definition of "open
front yards" in the Code, but he said it is a general term he
refers to when determining whether or not you can see the front
of the house.
Mr. Roeder referred to 2745 Ave Au Soleil where they had to
remove a hedge to create an open front lawn, and he noted for
the record that this is a subject for interpretation, it is not
defined in the Code and Mr. Thrasher said it is his
interpretation that "open front lawn" means you cannot see the
front of the house. Mr. Thrasher said he did 'not mandate them
to remove the hedge, but he said he indicated that if they
wanted to make other Level I improvements, the hedge did not
provide an open view and the application would be elevated to a
Level II and approval or denial would the decision of the
Architectural Review and Planning Board. He said the owner took
time to decide and came back with a modified plan which he said
he determined to be a Level I and could be authorized by the
Town Administrator. Mr. Thrasher said that is the result in the
second photo of the property at 2745 Ave Au Soleil. Mr. Roeder
asked Mr. Thrasher if he required that the hedge be removed to
be in compliance. Mr. Thrasher said he did not require that the
hedge be removed, but he said he informed them that he would not
approve the permit application as submitted, based on the fact
that it exceeded his level of authority and if they wanted to
proceed with the improvements and leave the hedge, it would be
an application for the ARPB to hear and render a decision.
Mr. Roeder said Mr. O'Hare previously signed an application that
listed landscape alterations, but he said Mr. Thrasher never
explained what exactly triggered the requirement of Mr. O'Hare
having to apply for a landscape permit. Mr. Thrasher said the
volume of landscaping appeared to be more than a small weekend
planting. Mr. Roeder asked how many trees would trigger the
need for a permit. Mr. Thrasher said the number is not as
important as the overall visual impact of the complete project.
Mr. Roeder said he is trying to determine what triggers the need
for a landscape permit. Mr. Thrasher said the Code provides
that if the work will have a material impact on the Community it
would require a Level I or a Level II application, which he said
would be determined by a review of a site plan indicating the
extent of the landscape plan. Mr. Roeder said Mr. Thrasher
still has not answered the question. Mr. Randolph objected
saying Mr. Roeder has an opportunity to make his argument later.
Mr. Roeder said it is fair to ask for clarification of what
triggers a permit. Special Magistrate Donlon noted the
objection and asked Mr. Thrasher to describe what would trigger
a review at either a Level I or Level II with the Town. Mr.
Thrasher said a Level I would be landscaping that would require
the Town's direction to the applicant of that which they want to
place on their property. He said, in that discussion, if the
volume is significant it would be determined if it requires a
Level II review, either in the form of a conversation or actual
application of a Level I or Level II. Mr. Roeder asked if there
is a Code Section to go with that. Mr. Thrasher said he
previously referred to Code Sections addressing Level I and
Level II applications.
Mr. Roeder stated that Mr. Thrasher wrote in his Notice of
Violation that new plantings violate Code Sec. 70 -32(a) and 70-
146, and asked Mr. Thrasher if he was referring to the style and
arrangement of plants or the type of plants. Mr. Thrasher said
one section of the Notice talks about the location and another
section of the Notice talks about the type of materials that are
in violation. He said Code Sec. 70 -150 refers to type of plants
and the other sections refer to the location of the plantings.
Mr. Roeder asked Mr. Thrasher if he was saying if a plant is
not on the list in Sec. 70 -150 it is not allowed. Mr. Thrasher
said he is not saying that, but there are various species of
plants located both east and west of the Intracoastal that
violate that Section of the Code. He said he cannot prove the
date those plantings were installed and, at the time of
planting, they may have been allowed by Code. However, he said
in this instance he knows the general timing and dates of the
installation of landscaping at 2520 Ave Au Soleil and how it is
to be in compliance with today's Code.
Mr. Randolph said Mr. Thrasher previously cited Code Sec. 58-
138(b), he asked Mr. Thrasher to read that section and he did
so. It states, "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. Mr. Randolph asked if someone could jackhammer out a
concrete driveway and bisect it with trees and fill without
getting a permit. Mr. Thrasher said "no."
Mr. Randolph called Marty Minor to answer some questions. Mr.
Minor was introduced and said he has been a Senior Planner with
Urban Design Kilday Studios since 1999. He said his firm is the
entity,that drafted the Design Manual for the Town of Gulf
Stream and he is the Consultant to the Town with regard to the
Design Manual. Mr. Randolph asked Mr. Minor if the Town
consulted him on this alleged Code Violation. Mr. Minor
confirmed that saying he was consulted in early October of 2012.
He said he was asked to visit the site to determine whether the
landscaping improvements are in conformance with the Design
Manual Standards. Mr. Randolph asked Mr. Minor if he visited
the site and took photographs. Mr. Minor confirmed that. Mr.
Randolph asked if they were available to look at. Mr. Minor
said he has a full set and the Town may not have all of the
photos. For clarification, Special Magistrate Donlon said what
was submitted to her at Town's #7 was a memo from Mr. Minor with
six pages of photos. She showed them to Mr. Minor and Mr. Minor
identified them as the photos he took of the project.
Mr. Randolph asked Mr. Minor if he made a determination when
looking at the property as to whether the property was Code
compliant. Mr. Minor said he determined that the property did
not conform to the Design Manual. He said the Code was set up
to preserve and perpetuate the unique residential nature of this
Town. He said they did extensive surveys of each neighborhood
to address the general character of the districts, standards
were created for each district and each are described in
sections of the Code. He said Code Sec. 70 -146 is the
landscaping section of the Design Manual, the first thing it
calls for is reinforcing the community's identity, and that
identity is referenced in Code Sec. 70 -32 where it talks about
"informal and naturalistic plantings with open front lawns that
characterize the landscaping and general feel of the lots." Mr.
Minor said the inclusion of the row of Lady Palms across the
driveway and across the front was found inconsistent and non-
conforming to that Section of the Code. Mr. Randolph asked
which other sections were not complied with. Mr. Minor said the
some of the landscape pallet used are not within the appropriate
or typical plants that are part of Gulf Stream or Place Au
Soleil District, which is outlined in the October 16, 2012 memo
to Mr. Thrasher. Mr. Randolph asked, if a person applied to
make these improvements, would they not be granted a permit
because they are not in compliance with the Code. Mr. Marty
confirmed that. He confirmed that he is familiar with the
subject neighborhood and these improvements would not be in
compliance with the neighborhood or with Town Code. He also
confirmed that there may be a minority of homes in that
neighborhood with landscaping that blocks the house. He said it
would only be his assumption that those homes or plantings were
prior to the current Design Manual because any other change
would have to come before the Board and receive a variance or
conform to Code. Mr. Randolph asked Mr. Minor about the
question of what would trigger the requirement of applying for a
permit for the landscaping they want to do on their property.
rr Mr. Minor said the significant change in the appearance or
l- character of the lot would trigger that review. Mr. Randolph
asked Mr. Minor if his memo of October 16, 2012 covers his
conclusion that the work done was not in compliance with Code.
Mr. Minor confirmed that.
Mr. Roeder asked Mr. Minor about his expertise in landscaping,
saying he understands Mr. Minor is AICP, Planning. Mr. Minor
confirmed that he is not a landscape architect, but is familiar
with landscaping and has been working with landscaping in
Florida for the past 20 years. Mr. Roeder referenced Code Sec.
70 -146 where Mr. Minor said it talks about the Standards
reinforcing community identity. Mr. Minor said it is 70-
146(b)(1), and he said the community is made up of districts and
it is part of the identity of the Place Au Soleil community.
Mr. Roeder referred to 70 -150. He said he does not see the
words "appropriate" or "typical" anywhere in that section. Mr.
Minor confirmed that. Mr. Minor said the typical plants are in
Sec. 70 -149, listed typical native plants, which plants are
appropriate and presently found in the Town. Code Sec. 70 -150
is other plants used in the town. Mr. Roeder said Lady Palms
are not listed in either section and asked if a plant is not
listed in Code Sec. 70 -149, would it be deemed not appropriate
or typical. Mr. Minor confirmed that. Mr. Roeder asked where
that interpretation comes from and he asked for the Code Section
that triggers the need for a permit. Mr. Minor said it is in
General Landscaping Standards for all single family homes are
found in Division 3, starting with Code Section 70- 148(1). Mr.
Roeder said he cannot find anything in Division 3 that states a
permit is required. Mr. Minor said the Section provides
principles and standards of preferred for single family homes,
and he said it was previously discussed where the Town
Administrator, as part of his duties, is to issue permits for
landscaping.
Mr. Roeder continued saying he cannot get the answer to what
triggers the need for a landscape permit. Mr. Minor cited
various sections of the Code for Mr. Roeder that address various
permits, permit review and.the approval process and it was not
specific enough for Mr. Roeder. Mr. Roeder asked Mr. Minor to
be specific as to what triggered the need for Mr. O'Hare to
obtain a landscape permit. Mr. Minor said under Code Sec. 66-
81, Powers and duties of the planning and building
administrator, subsection (9), it talks about various permits
which Mr. Thrasher, as the Planning and Building Administrator
would review and process, and landscape disturbance permit is
included. Mr. Roeder noted that nowhere in there does it state
what triggers that type of permit, which he said forces his
objection and Section 66 is not listed in the Notice of
Violation. Special Magistrate Donlon noted the objection.
There were no further questions of Mr. Minor.
Break at 11:50 A. M. - Reconvene at 12:01 P.M.
Mr. Roeder distributed documentation pertaining to his
presentation. He stated, for the record, that he still has not
received answers to some of his questions. Special Magistrate
Donlon stated that all of the information she will consider will
come from witnesses and exhibits and not from a presentation.
She said if he is providing an overview or opening or closing
remarks, she would consider that also. Further, she reminded
Mr. Roeder that if he is presenting information to be
considered, it should be provided through a witness that has
been sworn in. Mr. Roeder said he would display the boards one
at a time and he would question Mr. O'Hare regarding each
violation.
The first board exhibit referred to the first violation of
adding and removing of fill without applying for a permit, and
Mr. Roeder referred to Code Sec. 58- 138(b), which he stated was
cited by the Town. He asked Mr. O'Hare if he removed, moved or
added fill to or from the site and Mr. O'Hare said he did not.
Mr. Roeder referred to Code Sections 58- 137(2) and 58- 138(b)
that address land clearing and exemptions, he asked Mr. O'Hare
to read the sections aloud, and he asked Mr. O'Hare if he was in
violation of the exemption. Mr. O'Hare said he was in
compliance and that the 50% rule did not apply to this matter.
Mr. Roeder asked Mr. O'Hare if he applied to the Town for a
permit for driveway repair. Mr. O'Hare said when he first
received the Town's Notice about the roof, landscaping and the
driveway he applied for a permit to restore the driveway and
repair other damaged areas in the driveway, which he said was
approved by the Town and is now being processed in Delray. Mr.
Roeder shared a copy of the permit with opposing Counsel and the
Special Magistrate. Special Magistrate Donlon noted for the
record that she admitted the copy of the exhibit on the board as
Respondent's Exhibit #1. Mr. Roeder submitted a copy of the
Building Permit review receipt for the driveway as an Exhibit.
Special Magistrate Donlon admitted a copy of the Building Permit
review receipt (3 pages) as Respondent's Exhibit #2. Mr. Roeder
submitted a copy of Code Sec. 2 -68 regarding Jurisdiction as an
Exhibit. Special Magistrate Donlon admitted a copy of Code Sec.
2 -68 regarding Jurisdiction as Respondent's Exhibit #3.
CThe second board exhibit referred to the second violation
regarding the character of the district and open front lawns,
Mr. Roeder cited Code Sec. 70 -32(a) and questioned Mr. O'Hare
about the characteristics of the Place Au Soleil District. Mr.
O'Hare said there are different styles of homes, some with open
front lawns and some with closed front lawns. He said his front
door is visible from the street. Mr. Roeder presented photos of
the 32 homes in Place Au Soleil with closed front lawns, he
asked Mr. Minor to review them and divide them into two piles,
one with open front lawns and the other with closed. Further,
he would ask Mr. Minor if the front yard is closed, would he
consider the property to be non - conforming. Mr. Randolph
objected saying that some of the properties photographed may
have been grandfathered in. Further, he said Mr. Roeder is
going from his witness to the Town's witness and he is out of
order. Special Magistrate Donlon noted the objection, she asked
Mr. Roeder to finish questioning his witness and then he could
question Mr. Minor. Mr. Roeder pointed out a photo of 960
Indigo Point, Commissioner Anderson's property, and Mr. O'Hare
noted that you cannot see the house from the street. Special
Magistrate Donlon admitted the chart on the second board as
Respondent's Exhibit #4 and she admitted the photograph of 960
Indigo Point as Respondent's Exhibit #5.
The third board exhibit referred to the third violation, Mr.
Roeder asked Mr. O'Hare about this violation. Mr. O'Hare cited
Code Sec. 70 -146 that addresses the standards of new plantings
in various districts, Code Sec. 70 -3(b), Purpose, and Code Sec.
70 -4, How to Use this Manual that talk about "mandatory" and
"discretionary," and he read the sections aloud. He referred to
Code Sec. 70- 187(9) noting the design standards for all five
districts. Mr. O'Hare said for Place Au Soleil it addresses
preferred, but not required, and he said he feels the plantings
in his yard meet the standards and he is in compliance. Special
Magistrate Donlon admitted the third board as Respondent's
Exhibit #6.
The fourth board exhibit refers to the violation of planting
materials and cites Code Sections 70 -146, 70- 146(b) and 70-
146(c) which address architectural standards and plant material.
Mr. O'Hare said the Code is clear with regard to plant material
reinforcing the identity of various districts. Special
Magistrate Donlon admitted the fourth board as Respondent's
Exhibit V.
The fifth board exhibit cites Code Sec. 70 -150 that addresses
plants used in Town that are in keeping with the character image
C of the Town environment, Code Sec. 70 -148 that addresses style
and technique, which Mr. O'Hare said no particular style or
techniques is listed. Mr. Roeder asked Mr. O'Hare if Mr.
Thrasher referred to the groupings or arrangement of plantings
as a violation. Mr. O'Hare said he referred to both at
different times. Special Magistrate Donlon admitted the fifth
board as Respondent's Exhibit #8. He said he found similar
plantings in the area and what he saw was inspiration for what
he planted. Mr. Roeder shared photos with Mr. O'Hare which Mr.
O'Hare identified as plantings around Town Hall. Mr. Randolph
objected to the relevancy and materiality of plantings around
Town Hall. Special Magistrate Donlon admitted the photos as
Respondent's Exhibit #9. Mr. Roeder asked Mr. O'Hare what the
significance is of the photos of plantings around Town Hall and
Mr. O'Hare said many of the plants are not listed in Code Sec.
70 -150, some are very old and some look like they may have been
planted when Town Hall was remodeled. Mr. Roeder asked Mr.
O'Hare to identify another group of photos that he took of other
forbidden plantings in the community, including the late Mayor's
home, the new Mayor's home and other residents. Mr. Roeder said
these plants in the photos would be considered non - conforming.
Special Magistrate Donlon admitted the second group of photos as
Respondent's Exhibit #10.
Mr. Roeder asked Mr. O'Hare where he got the Lady Palms. Mr.
O'Hare said he took half of them from his property at 530 Middle
Rd., which the former owner of that property got from the late
Mayor Koch. He said other half were given to him from Jean
Spence.
Mr. Randolph questioned Mr. O'Hare and asked if he was a
professional designer and Mr. O'Hare said he was not, but he is
a retired Landscape Architect registered in Florida. Mr.
Randolph asked about the email complaints from his neighbors and
Mr. O'Hare said he never saw the email from his neighbors and he
takes offense to their statements. He said he is happy with the
work he has done at this stage and expects it to be better. Mr.
Randolph asked Mr. O'Hare if digging up the driveway and
planting Lady Palms in that area to block the front of his home
is appropriate to the neighborhood. Mr. O'Hare asked Mr.
Randolph if he meant as it would be determined to be appropriate
in a project approval. He said he is not submitting for a
project approval, but he would expect a code to be clear enough
so that a person would know what to do without violating the
code. Further, he said as he understands the Code he is in
compliance. Mr. Randolph referred to the application to change
the stucco, which also included landscape changes, and asked Mr.
O'Hare if he took into account that he needed to apply for a
permit. Mr. Roeder objected, the Special Magistrate overruled
the objection and asked Mr. O'Hare to answer. Mr. O'Hare said
Mr. Thrasher does not know when the landscape changes took
place. Mr. Randolph referred to an application that indicated
Mr. O'Hare had applied for a permit to repaint his house and
that form also included several other types of work that would
require permits, one of which is landscaping. This form was
earlier admitted as Town's Exhibit #9. Mr. Randolph read the
form to Mr. O'Hare and asked if that would have given him notice
that a landscape permit would be required. Mr. O'Hare said he
did not understand the question, Mr. Roeder objected, Special
Magistrate Donlon overruled the objection, asked Mr. O'Hare to
answer. Mr. O'Hare said he would have applied for a permit if
he thought he was making substantial changes, but he said he has
been making changes since he bought the property and did not
think each incident was a substantial change. He said the
driveway was not jackhammered, there was damage from piping and
he submitted the permit application to repair the damage. Mr.
O'Hare insisted that he was not required to apply for a
landscape permit for the work he did on his property because it
was done a little at a time.
Break at 12:55 P.M. Reconvene at 1:00 P.M.
Mr. Randolph asked Mr. O'Hare if he felt he was better qualified
to interpret the Code than the Town Manager and Town's
Consultant. Mr. O'Hare said he was not, but he said he believes
the improvements he made are in character of the district. He
agreed that approximately six of the properties he photographed
in Place Au Soleil with landscaping improvements were permitted,
but only because they were told to do so. He also said he did
not have the dates of plantings on the other properties with
landscaping improvements.
Mr. Randolph referred to the Respondent's third board exhibit
that lists various design standards, he said they talked about
discretionary and mandatory and preferred, discouraged and
prohibited, and he stated that the Design Manual was set up to
allow the Town to review applications to make determinations as
to whether proposed improvements are either preferred,
discouraged or prohibited. He asked Mr. O'Hare if he believes
it is in his discretion and not the Towns'. Mr. O'Hare said he
is not clear on that, but would not respect Mr. Thrasher's
opinion on anything. Special Magistrate Donlon admitted the
grouping of photos in Place Au Soleil as Respondent's Exhibit
#11.
CMr. Roeder called Mr. Fred Stresau of 711 SE 11th Ave, Ft.
Lauderdale, FL as an expert witness. He asked Mr. Stresau to
state his qualifications. Mr. Stresau said he prepared a list
of his qualifications which was submitted to the Town, and he
said he is a registered landscape architect who has practiced
since 1966 and owns the Firm of Stresau Smith & Stresau. He
said he has 45 years of experience serving on the Ft. Lauderdale
Planning and Zoning Board and /or Board of Adjustment and listed
other qualifications. Mr. Stresau said he reviewed Mr. Minor's
report and rendered his opinion. He said he took exception to
the definition of "open front yard" and said the Code should say
that open lawns or open space shall be provided. Mr. Stresau
said he is appalled by Mr. Minor's determination that any plant
not on the list in Sec. 70 -150 is a prohibited plant. He said
the Respondent planted larger plantings because smaller plants
die, and he said he believes the Respondent's landscaping is
described in the Code as informal, which appears all over the
neighborhood. Mr. Stresau said some sections of the Code are
not defined or are overbearing and leave no room for
interpretation. He agreed that closed front lawns would be
characteristic of Place Au Soleil. Mr. Roeder said Mr. Stresau
is familiar with Mr. O'Hare's landscape changes and he has
looked at the Code and the neighborhood. He asked Mr. Stresau if
he believes Mr. O'Hare is in violation. Mr. Stresau said
without a definition of "open front lawn" a permit should not be
required. Special Magistrate Donlon admitted Mr. Stresau's
letter of March 15, 2013 as Respondent's Exhibit #12.
Mr. Randolph referred to Mr. Stresau's service on various code
boards and asked if the property owners in those municipalities
made the determination as to whether or not they needed a
permit. Mr. Stresau said Town Staff would make that decision.
Mr. Randolph asked if a property owner would be expected to
apply for a permit if Town Staff determined so. Mr. Stresau
confirmed that. Mr. Stresau said the Gulf Stream Town Code is
not clear and he believes the plant list is offensive.
Mr. Roeder shared a set of plans
identified the documents as home
landscape plan, for 2520 Ave. Au
on the plans as October 6, 2012,
the plants on the landscape plan
list. Special Magistrate Donlon
for 2520 Ave. Au Soleil, includi3
Respondent's Exhibit #13.
with Mr. Stresau. Mr. Stresau
remodeling plans, including a
Soleil and identified the date
and he confirmed that 90% of
are not on the Town's plant
admitted the remodeling plans
ig a landscape plan, as
CMr. Randolph asked if it was stated that the landscaping plan
was submitted and approved by the Town. Mr. Roeder said the
plans were given to them by the Town through a public records
request.
Mr. Roeder asked Mr. Thrasher if Mr. Minor's opinion letter to
him was dated November 7, 2012 and Mr. Thrasher said it is dated
October 16, 2012. Special Magistrate Donlon clarified that
Town's #2 is a memorandum from Mr. Minor to Mr. Thrasher
regarding 2520 Ave. Au Soleil regarding unpermitted landscaping
analysis. She said on Town's #7 it is a memorandum dated
November 7, 2012 from Mr. Minor to Mr. Thrasher with the
attached photographs. Mr. Roeder asked Mr. Thrasher if he
issued the notice of violation on November 5th to Mr. O'Hare
based on input from Mr. Minor, but before Mr. Minor submitted
photos. Mr. Thrasher confirmed that, and he said he was
referring to the October 16th memorandum. Mr. Roeder asked Mr.
Thrasher if he asked Staff to take photos of Mr. O'Hare's
property and began investigating the situation on his own, based
on email complaints from neighbors, which was prior to Mr. Minor
providing photos. Mr. Thrasher said that what he stated is that
this started with a cursory drive -by by the Town's Maintenance
Supervisor, Brien Dietrick, and then Mr. Dietrick asked if the
work was permitted. Mr. Roeder referred to the email chain of
complaints from neighbors and asked Mr. Thrasher is that spurred
the notice of violation. Mr. Randolph objected, Special
Magistrate Donlon sustained the objection. Mr. Roeder shared
different email correspondence with Mr. Randolph, he had no
objections, Special Magistrate Donlon admitted the email
correspondence as Respondent's Exhibit #14. Mr. Roeder shared a
chronology of email correspondence and Special Magistrate Donlon
admitted the chronology as Respondent's Exhibit #15.
Mr. Roeder asked Mr. Thrasher about the Place Au Soleil HOA
comments. Mr. Thrasher said he emailed the BOA President, which
is a common practice, to ask if they had concerns about the
plantings at 2520 Ave. Au Soleil and asked for their comments.
Mr. Roeder said they had a records request for all email and he
did not receive a copy of the email correspondence to the HOA
President. He said he does have a copy of an email from Sandy
Brandt, an HOA member, to the other HOA members saying that Mr.
Thrasher would like the HOA's opinion of the landscaping project
at 2520 Ave. Au Soleil. Further it stated that if the HOA was
okay with the work he would not force the issue, but if they
were unhappy he would take the appropriate action. Mr. Thrasher
said it is part of the approval process and the intent was to
obtain input from the HOA concerning the impact the project
would have on the community. Mr. Roeder said it seems that Mr.
O'Hare's fate is based on positive or negative comments from the
neighbors. Mr. Roeder referred to work that was done in the
last three years at 2534 Ave. Au Soleil, 2562 Ave. Au Soleil,
2700 Ave. Au Soleil and 2665 Ave. Au Soleil, and he asked Mr.
Thrasher what allows someone to plant landscape material that
was not listed in 70 -150. Mr. Thrasher said following an
applicant's presentation, approvals would be made by the ARPB
for Level II reviews and by the Commission for Level III
reviews. Mr. Thrasher requested a recess. For the record, Mr.
Roeder noted that Mr. Thrasher conferred with Counsel and is now
requesting a recess.
Break at 2:00 P.M. Reconvene at 2:10 P.M.
Mr. Roeder showed Mr. Thrasher a photo of 960 Indigo Point and
asked him if it was an open or closed front yard. Mr. Thrasher
said it was closed and would consider it to be a grandfathered
condition and not in violation. Mr. Roeder asked Mr. Thrasher
to read a fax that was from Mr. Thrasher to Mr. Roeder. It
says, "the requirement for any permit triggers the need for
conformity to the Code(s). The Town agrees with one and three;
however in two, and in the event that there would be a proposed
landscape alteration to the private property, that would require
a permit for landscaping that may be required to be brought into
conformity and that determination would be made through a Level
II review process and in a public hearing. If nothing happens to
the existing landscape located beyond the right -of -way line, the
landscape non - conforming materials could remain. The
requirement for any permit triggers the need for conforming to
the Code. Mr. Thrasher said he was referring to a landscape
permit. Mr. Roeder was trying to point out that other
properties applied for improvements and were not asked to remove
landscaping from the front of their home to create an open front
yard. Special Magistrate Donlon admitted the fax from Mr.
Thrasher to Mr. Roeder as Respondent's Exhibit #16.
Mr. Randolph asked Mr. Thrasher if, prior to Mr. O'Hare
installing the landscaping, he advised him that it would require
a site plan review. Mr. Thrasher confirmed that and said he
corresponded with Mr. O'Hare on March 6, 2012. Mr. Randolph
shared the correspondence with Mr. Roeder. Mr. Thrasher pointed
out in the letter where he advised Mr. O'Hare that he would need
a site plan review and where it cited Code Sec. 70 -146 and Sec.
70 -150. The correspondence also explained Level I, Level II and
Level III review process. Mr. Thrasher said a permit was never
applied for. Mr. Randolph had Mr. Thrasher read a portion of
C Code Sec. 66- 141(f) where it addresses Level I & II site plan
reviews. Mr. Randolph was making the point that the Code
addresses certain provisions regarding the approval process, Mr.
O'Hare was noticed, he did not challenge the Administrative
Decision and he did not apply for a permit. Special Magistrate
Donlon said the letter of March 6, 2012 from Mr. Thrasher to Mr.
O'Hare has not been submitted to record and she admitted the
March 6, 2012 correspondence as Town's Exhibit #13.
Mr. Randolph asked Mr. Thrasher if he ever advised Mr. O'Hare
that he needed a permit to do the work being undertaken by him.
Mr. Thrasher said he did so through his attorney, Mr. Roeder.
Break at 2:40 P.M. Reconvene at 2:45 P.M.
In closing, Mr. Randolph pointed out that Mr. O'Hare has had
ample opportunity to comply with the Town's interpretation of
the Code and Mr. O'Hare believes it is not necessary for him to
do what the Town requires. He said Mr. O'Hare was advised on
several occasions that he needs to apply for a permit for the
landscaping, and he said he was advised as late as November 5,
2012 that he was in violation. Mr. Randolph said he was given
30 days to comply in the first notice and was given an extension
in the second notice. He said Code Sections were cited with
reference to landscaping pallets, impervious areas being
disturbed, certain provisions and purpose of site plan reviews,
and he said the fact is that Mr. O'Hare does not want to comply.
Mr. Randolph said Mr. O'Hare is aware of his neighbors' concerns
and there is strong evidence before the Magistrate in the form
of photos, Code Sections and testimony by Mr. Thrasher and Mr.
Minor that he is in violation of the Code. He said the Town
would ask Mr. O'Hare to return the property to the way it
existed prior to the changes made on his property within a
period of 30 days and, if not, he would come back to the
Special Magistrate to impose a daily fine until compliance is
met.
Mr. Roeder said they were brought here to answer to the
violations, and he said they asked several times for an answer
to the question of what triggers the need for a permit and did
not get the answer. He referred to Code Sec. 58- 138(b) that
addressed removing soil to and from the site and said Mr. O'Hare
did not do that. Mr. Roeder said the definition of "open front
lawns" is not clear anywhere in the Code. He referred to Code
Sec. 70 -146 that addresses general standards and plant material
that is characteristic to the District. Mr. Roeder said Mr.
O'Hare looked around his neighborhood and the community and got
T inspiration for his landscaping from what he observed. He said
�- he kept asking for the trigger and he believes it is disgruntled
neighbors sending email complaints to the Town Manager that is
the trigger. Mr. Roeder said Mr. O'Hare is not in violation of
the Code.
FINDINGS: Special Magistrate Donlon stated that, due to the
nature of testimony and evidence presented, she would state her
findings in written form.
This concluded the hearing of Case No. CE 1 -13. Special
Magistrate Donlon adjourned the hearing at 3:05 P.M.
Page 1 of 2
r
Rita Taylor
From: lou.roeder @gmail.com on behalf of Lou Roeder [lou @louroeder.com]
Sent: Saturday, March 23, 2013 12:10 PM
To: Rita Taylor
Cc: Chris O'Hare
Subject: Re: Evidence Submitted at Code Enforcement Hearing, March 21, 2013
Rita,
Thanks for the response. Sorry to see that you're in on a Saturday.
Will we be able to get copies of all the evidence after the decision?
Louis Roeder
ATTORNEYATLAW
7414 Sparkling Lake Road
Orlando, FL 32819
cell: 407- 758 -4194
CONFIDENTIALITY NOTE: This email message and anv attachments maY contain confidential, privileged and non- disclosable
information. The information is intended onlvfor the use of the individual at- entity named on this email. Ifyou are not the
intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the
contents of this email it formation, is strictly prohibited and that the documents should be returned to the sender immediately. If
),on have received this entail in error or by accidental transmission, please notifi, the sender by return entail immediately, delete
all electronic copies of this entail and all attachments and destroy all hard copies. Thank you.
On Sat, Mar 23, 2013 at 11:30 AM, Rita Taylor <RTaylorQa gulf- stream.org> wrote:
Counselor:
I sent the copies to Attny Donlon that you sent me. I don't know when I will hear from her but she is usually
very prompt. I will advise you when I hear.
Rita
From: Iou.roedeKabamail.com [mailto:lou.roeder(algmail.coml On Behalf Of Lou Roeder
Sent: Friday, March 22, 2013 11:36 AM
To: Rita Taylor
Cc: Chris O'Hare
Subject: Evidence Submitted at Code Enforcement Hearing, March 21, 2013
3/23/2013
Page 2 of 2
-I • ,
Rita,
In the confusion at the end of yesterday's Code Enforcement Hearing against my client, Mr. O'Hare, I collected
some papers at the far side of the dais and noticed that I had inadvertently failed to return to the Special
Magistrate some of the photos that I had previously introduced into evidence, but subsequently asked to hold in
order to question Mr. Minor. These consisted of photos taken of houses in Place Au Soleil taken by Mr. O'Hare. I
also found some photos of Mr. O'Hare's home taken by one of the Town's employees, labeled "Brian 1018/12." 1
don't know if these belong to the Special Magistrate as well.
I apologize for the late discovery of my mistake and ask that you deliver these photos to the
Special Magistrate in time for her deliberation.
I'm having these items delivered to you this morning, Friday.
Also, do you know when we will be able to get copies of all the evidence submitted to the
Special Magistrate during the hearing?
Respectfully,
Louis Roeder
ATTORNEYAT LAW
7414 Sparkling Lake Road
Orlando, FL 32819
cell. 407- 758 -4194
CONFIDENTIALiTYNOTE. This email message and any attachments may contain confidential, privileged and non-
disclosable information. The information is intended only for the use ofthe individual or entity named on this email. Ifyou
are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action
in reliance on the contents ofthis email information, is strictly prohibited and that the documents should be returned to the
sender immediately. ifyou have received this email in error or by accidental transmission, please notify the sender by
return entail immediately, delete all electronic copies ofthis email and all attachments and destroy all hard copies. Thank
you.
3/23/2013
TOWN OF GULF STREA
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
WILLIAM F. KOCH, JR. Mayor
JOAN K. ORTNWEIN. Vice Mayor
FRED B. OEVOT III
CHRIS D, WHEELER
MORIEL J. ANDERSON
March 6, 2012
Louis L. Roeder, Esquire
7414 Sparkling Lake Road
Orlando, Florida 32819
Re: Christopher F. O'Hare
2520 Avenue ALL Soleil
Gulf Stream, FL 33483
Dear Mr. Roeder
ac .,
lI
� •�s
I am responding to your email to Mr. Randolph dated March 1, 2012 and your email to
me dated March 5, 2012. You have asked several questions for which I will provide the
following answers and information.
This is to confmn that your client, Mr. O'Hare, has withdrawn the window and door
change out permit application. The Town will indicate "withdrawn" on this application.
Code Book
There is one code book for the Town of Gulf Stream. This code is used by the Town
Commission, Police Department, and Staff and is die same code that is available to the
public. Interim amendments can be approved by ordinances through public process
which do not immediately get codified. When a code book is purchased, copies of the
un- codified ordinances are also provided at the time of purchase.
Landscape Permits "Any"
Section 70 -146 through section70 -150 provides standards and information for those
applicants desiring to install landscaping. In those sections references are made in
regards to what is "required ", "preferred ", "discouraged" and "prohibited ". "The
landscape architectural standards have been developed to reinforce the overall character
and the image of the town environment." The use of the term "any" can be misleading in
nature as the scope of work, amount, type, impact on adjoining and abutting properties of
100 SEA ROAD, GULF STREAM, FLORIDA 33483
r'
Christopher F. O'Hare
2520 Avenue Au Soleil
March 6, 2012
Part 2
the proposed landscape would be used to determine the level of approval required. A
level I application is often discussed with the City of Delray for their input to determine
the need of a permit. Also, the determination and/or decision by the planning and
building administrator can be based on section 66-14 1 2 (h). That decision can be
challenged as provided in section 66 -145 (12). In fact, section 66 -141 2(h) becomes
relevant and applicable when the planning and building administrator has concerns about
the potential impact of the proposed plan.
Irrigation Permit
The City of Delray will most likely require an irrigation permit. In the event that Delray
does not require an irrigation permit, a separate permit by the Town will not be
necessary.
Planting in the Town Right -of -wa
One of the objectives of reviewing a landscape site plan is to help prevent unnecessary
infringement onto neighboring or abutting properties. Many times new owners are not
aware where their property lines actually are. The district of the subject property has
very large road right -of -ways and is not easily determined at first glance. The use of a
property survey can easily provide basic guidance in such determinations.
A similar situation occurred in 2004. This particular situation was observed by me when
doing my "weekly drive by" in Place Au Soleil. A new resident began "at will" to add
hedges in the front of the home near the roadway. In doing so, the fire hydrant was
covered from view. The owner was notified that the plantings were to be set back onto
his property and out of the right -of -way. The owner did not agree and presented a
challenge of my decision before the Town Commission. The Town Commission decided
with the administrator and further directed that if similar situations occurred, action was
to be taken to keep new plantings out of the Town's right -of -way. Additional discussion
took place as related to existing hedges in the right -of -way. I was directed to allow
existing hedges in the right -of -way but in the event changes to hedges were requested, or
occurred without a request, that I was to prohibit such actions. This is in part why your
client does observe hedges, and in some cases trees, located in a similar directional line
of sight. Through the natural evolution of the life cycle of landscape materials and
owners desiring various changes or upgrades the Town's right- of -way will be available
for infrastructure improvements. The Town Commission believes that this process is the
least disruptive corrective measure to the neighborhood and the Town residents. This
measure is consistent in all districts, not just the 'Place An Soleil district.
it
Christopher F. O'Hare
2520 Avenue An Soleil
March 6, 2012
Part 3
Metal Roof— Principle and Minor Accessory Structures
Your recently received email dated March 5, 2012 confirms, "In response to your email
query of March 2. 2012, my client lmotvs of'at least two properties in Gulf &ream with
metal roofs. These properties are not single family homes ".
There is a distinction that does render consequences because the entire 70 Chapter "Gulf
Stream Design Manual" pertains exclusively to single family homes. 4450 North
Ocean Boulevard was just annexed into the Town in March 2011 and permitting for this
structure was handled through the Palm Beach County review criteria. The Gulf Stream
Multi Family Code available and used for the 3851 North Ocean Boulevard was silent to
whether metal roofs could be used. Because the metal roof material was not stated or
listed as prohibited by the code, the metal roof material was approved.
The Town does not have a" list of metal roof materials" which you requested as such roof
materials are prohibited by two section 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 on a minor accessory
structure) ".
Therefore, a variance application would be required to allow the use of metal roof
materials. A public hearing of the variance before the Town Commission is necessary.
Property owners within 300 feet of this property will be noticed of this public hearing so
that they can be heard as related to the variance request. At this hearing Mr. O'Hare's
engineer can appear and present his findings, or he can have his letter placed in the
record. The'rown Commission would also hear from experts used by the staff. 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. Within
a couple of days of the completion of the variance application your client will be
contacted to coordinate access to the premises.
Your client can also choose to challenge this administrative decision as provided in
section 66 -145 (12). The Town's staff will provide the necessary paperwork and
application materials upon your client's request.
Respectfully,
William H. Thrasher
Town Manager
Bill Thrasher
From: lou.roeder@gmaii.com on behalf of Lou Roeder <Iou@louroeder.com>
Sent: Thursday, May 10 20 21 '1r- 900—AMIW
To: Bill Thrasher
Subject: Plants in the Town right -of -ways
Mr. Thrasher,
Good morning.
Could.you do me a favor? In your March 6th letter, when discussing planting in the Town rights -of -way, you
mentioned a 2004 situation, also in Place An Soleil, where your decision was challenged to the Commission, and
they directed you, in similar situations, to keep new plantings out of the rights -of -way. Could you please e-mail
and/or fax me the minutes from that meeting? I would appreciate it.
Thank you.
—7414 Sparkling Lake Road
Orlando, FL 32819
cell: 407 - 7584194
fax: 866 - 610 -6090
CONFIDENTIALITY NOTE: This email message and any attachments may contain confidential, privileged and
non- disclosable information. The information is intended only for the use of the individual or entity named on this
email. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this email information, is strictly prohibited and that the
documents should be returned to the sender immediately. If you have received this email in error or by accidental
transmission, please notify the sender by return email immediately, delete all electronic copies of this email and all
attachments and destroy all hard copies. Thank you.
AAV
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O d o
ORDINANCE NO. 06/02
AN ORDINANCE OF THE TOWN COMMISSION OF THE
TOWN OF GULF STREAM, PALM BEACH COUNTY,
FLORIDA, AMENDING CHAPTER 2, ADMINISTRATION,
ARTICLE III, BOARDS AND COMMISSIONS, DIVISION 2,
CODE ENFORCEMENT BOARD; PROVIDING FOR
SEVERABILITY; 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
STREAM, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS
Section 1. The Code of Ordinances of the Town of Gulf Stream is hereby
amended at Chapter 2, Administration, Article III, Boards and Commissions, Division 2,
Code Enforcement, to read as follows:
"ARTICLE III. BOARDS AND COMMISSIONS
DIVISION 2. CODE ENFORCEMENT
Sec. 2-66. Title.
This division may be known and cited as the "Code Enforcement
Ordinance of the town of Gulf Stream, Florida."
Sec. 2 -67 Special masteFinaaistrate; term.
(a) There is hereby established a special mastermaoistrate who
shall be designated by the town commission.
(b) The special mastefmaaistrate shall be appointed for a term
of two vears and shall ha nnnnin+ori +n �=n,o i. __ „a:,.:.. ----- ... ,r.,_
Stream.
(c) The special mastermaoistrate shall be an attorney and a
member of the Florida Bar.
(d) The special masteFinaaistrate shall serve at the plea -sure of
the town commission.
(e) The special raastefmaaistrate shall preside over code
enforcement matters scheduled to be heard from time to time.
(f) Minutes shall be maintained at all hearings presided over by
the special mastermagistrate; all hearings shall be open to the public. The
town shall provide clerical and administrative personnel as may be
required by the special aia�maaistrate for the proper performance of
his /her duties.
(g) The town attorney or his /her designee shall represent the
town by presenting cases before the special mastefmaoistrate.
1
Sec. 2-68. Jurisdiction.
(a) The special masteFinagistrate shall have the jurisdiction and
authority to hear and decide any alleged violations of the following
chapters of the Code and ordinances of the town as the same may be
amended from time to time:
(1) Chapter 6, Animals;
(2) Chapter 10, Businesses, Professions and Occupations;
(3) Chapter 18, Emergency Systems;
(4) Chapter 22, Nuisances;
(5) Chapter 26, Offenses;
(6) Chapter 38, Waterways;
(7) Chapter 42, Buildings and Building Regulations;
(8) Chapter 52, Marine Facilities, Structures and Places; and
(9) Chapter 66, Zoning.
(10) Chapter 70, Design Manual.
(b) The jurisdiction of the special maste magistrate shall not be
exclusive. Any alleged violation of any of the aforesaid codes and
ordinances may be pursued by appropriate remedy in the court at the
option of the administrative official bearing responsibility for enforcement
of that respective code or ordinance.
Sec. 2 -69. Enforcement procedure.
(a) An employee of the town who is duly authorized by the town
manager and responsible for the enforcement of such ordinances,
hereinafter referred to as a "code enforcement officer," may initiate code
enforcement proceedings and issue citations or notices of violation to a
person or persons to appear in front of the special raastermaaistrate when
the code enforcement officer, upon personal investigation, has reasonable
cause to believe that the person or persons are in violation of the codes
cited in this division. Employees who may be designated as code
enforcement officers may include but are not limited to, code inspectors,
law enforcement officers, public works inspectors, fire safety inspectors,
and zoning inspectors.
(b) If a violation of the codes is found, the code inspector shall
notify the violator, unless subsection (c) below applies, and give such
violator a reasonable time, which shall not exceed 30 days, to correct the
violation. Should the violation continue beyond the time specified for
correction, the code inspector shall notify the special alastefmagistrate
and request a hearing. The special mastermaoistrate shall schedule a
hearing, and written notice of such hearing shall be hand delivered or
mailed as provided in section 2 -75 to the violator. At the option of the
special aaasteFinaaistrate, notice may additionally be served by publication
or posting as provided in section 2 -75. If the violation is corrected and
then recurs or if the violation is not corrected by the time specified for
correction by the code inspector, the case may be presented to the special
rrjastefmaaistrate even if the violation has been corrected prior to the
special mastermaaistrate hearing, the notice shall so state.
(c) If a repeat violation is found, the code inspector shall notify
the violator but is not required to give the violator a reasonable time to
correct the violation. The code inspector, upon notifying the violator of a
repeat violation, shall notify the special raaste �maaistrate and request a
hearing. The special a}astermaoistrate shall schedule a hearing and shall
provide notice pursuant to section 2 -75. The case may be presented to
2
the special a aastermaaistrate even if the repeat violation has been
corrected prior to the hearing, and the notice shall so state. If the repeat
violation has been corrected, the special Mastermaaistrate retains the
right to schedule a hearing to determine costs and impose the payment of
reasonable enforcement fees upon the repeat violator. The repeat violator
may choose to waive his or her rights to this hearing and pay the costs as
determined by the special +eastefmaaistrate. A repeat violation is a
violation of a provision of a code or ordinance by a person whom the
special mastermaaistrate has previously found to have violated the same
provision within five years prior to the violation.
(d) If the code inspector has reason to believe a violation of the
condition causing the violation presents a serious threat to the public
health, safety, and welfare or if the violation is irreparable or irreversible in
nature, the code inspector shall make a reasonable effort to notify the
violator and may immediately notify the special a4asteFinaaistrate and
request a hearing.
Sec. 2 -70. Conduct of hearings.
(a) At the hearing, the burden of proof shall be upon the town to
show by substantial competent evidence that a violation did occur or does
exist, or has been repeated. Assuming proper notice of hearing has been
given to the respondent, either as actual notice or as provided herein, a
hearing may proceed in the absence of the respondent.
(b) All testimony shall be under oath and shall be recorded. The
formal rules of evidence shall not apply. Irrelevant, immaterial and unduly
repetitious evidence of a type commonly relied upon by reasonable
prudent persons in the conduct of their affairs shall be admissible, whether
or not such evidence would be admissible at a trial in the courts of the
state. Documentary and physical evidence may be admitted.
(c) The special +paste magistrate may inquire of any witness
who is testifying before him /her. The respondent, or his attorney and the
town attorney and his /her designee shall be permitted to inquire of any
witness before the special rnastefmagistrate. The special
raastermaaistrate may call any witness deemed necessary to provide a full
and fair hearing of the case.
(d) At the conclusion of the hearing, the special
mastermaaistrate shall issue findings of fact based on evidence on the
record and conclusions of law, and shall issue an order affording the
proper relief consistent with the powers granted herein. The order shall be
stated orally at the meeting, and shall be reduced to writing and mailed to
the alleged violator within ten working days after the hearing. The order
may include a notice that it must be complied with by a specified date and
that a fine, as well as the cost of repairs, may be imposed if the order is
not complied with by such date. A certified copy of such order may be re-
corded in the public records of the county and shall constitute notice to
any subsequent purchasers, successors in interest, or assigns if the
violation concerns real property, and the findings therein shall be binding
upon the violator and, if the violation concerns real property, any
subsequent purchasers or successors in interest or assigns.
Sec. 2-71. Powers.
The special fnastermaaistrate shall have the power to:
(1) Adopt rules for the conduct of his /her meetings and
3
hearings.
(2) Subpoena alleged violators and witnesses to his /her
hearings.
(3) Subpoena evidence as necessary for his/ her hearings,
including, but not limited to physical and documentary evidence such as
records, surveys, plats and photo - graphs.
(4) Take testimony under oath.
(5) Issue orders having the force and effect of law which can
command whatever steps are necessary to bring a violation into
compliance, such decision to be made at the hearing and reduced to
writing and mailed to the respondent(s) within ten working days thereafter.
(6) Establish and enforce fines pursuant to section 2 -72.
(7) Authorize the town attorney to foreclose on liens imposed
pursuant to section 2 -72 which remain unpaid after a period of three
months.
(8) Authorize the reduction of any fine he /she has imposed.
Sec. 2 -72. Administrative fines, costs of re -pair; liens
(a) The special n;astermaaistrate, upon notification by the code
inspector that an order of the special a aastefmaoistrate has not been
complied with by the set time or, upon finding that a repeat violation has
been committed, may order the violator to pay a fine in an amount
specified in this section for each day the violation continues past the date
set by the special fnastefmaaistrate for compliance or, in the case of a
repeat violation, for each day the repeat violation continues, beginning
with the date the repeat violation is found to have occurred by the special
fnastefmaaistrate. In addition, if the violation is a violation described in
subsection 2 -69(d) of this division, the special mas#efmaaistrate shall
notify the local governing body, which may make all reasonable repairs
which are required to bring the property into compliance and charge the
violator with the reasonable cost of the repairs along with the fine imposed
pursuant to this section. If a finding of a violation or a repeat violation has
been made as provided in this section, a hearing shall not be necessary
for issuance of the order imposing the fine. If, after due notice and
hearing, a special mastefmaaistrate finds a violation to be irreparable or
irreversible in nature, it may order the violator to pay a fine as specified in
subsection (b), below.
(b) A fine imposed pursuant to this section shall not exceed
$250.00 per day for a first violation, and shall not exceed $500.00 per day
for a repeat violation, and, in addition may include all costs of repairs
pursuant to subsection (a), above. However, if the special
fnastefmaoistrate finds the violation to be irreparable or irreversible in
nature, it may impose a fine not to exceed $5,000.00 per violation.
(c) In determining the amount of the fine, if any, the special
Fnastefmaoistrate shall consider the following factors:
(1) The gravity of the violation;
(2) Any actions taken by the violator to correct the violation; and
51
(3) Any previous violations committed by the violator.
(d) A certified copy of an order imposing a fine may be recorded
in the public record and thereafter shall constitute a lien against the land
on which the violation exists, and upon any other real or personal property
owned by the violator. Upon petition to the circuit court, such order may
be enforced in the same manner as a court judgment by the sheriffs of this
state, including levy against the personal property, but such order shall not
be deemed to be a court judgment except for enforcement purposes. A
fine imposed pursuant to this section shall continue to accrue until the
violator comes into compliance or until a judgment is rendered in a suit to
foreclose on a lien filed pursuant to this section, whichever occurs first. A
lien arising from a fine imposed pursuant to this section runs in favor of the
town and the town may execute a satisfaction or release of a lien entered
pursuant to this section. After three months from the filing of any such lien .
which remains unpaid, the town may authorize the town attorney to
foreclose on the lien. No lien created pursuant to the provisions of this
section may be foreclosed on real property which is a homestead under
Section 4, Article X of the State Constitution.
Sec. 2-73. Duration.
No lien provided under this division shall continue for a period
longer than 20 years after the certified copy of an order imposing a fine
has been recorded, unless within that time an action to foreclose on the
lien is commenced in a court of competent jurisdiction. In an action to
foreclose on a lien, the prevailing party is entitled to recover all costs,
including a reasonable attorney's fee, that it incurs in the foreclosures.
The town shall be entitled to collect all costs incurred in recording and
satisfying a valid lien. The continuation of the lien effected by the
commencement of the action shall not be good against creditors or
subsequent purchasers for valuable consideration without notice, unless a
notice of [is pendens is recorded.
Sec. 2-74. Appeals.
An aggrieved party, including the town, may appeal a final
administrative order of the special mastefmaaistrate to the circuit court of
Palm Beach County, Florida. Such an appeal shall not be a hearing de
novo, but shall be limited to appellate review of the record created before
the special anasteFinagistrate. The appeal shall be filed within 30 days of
the execution of the order to be appealed.
Sec. 2-75. Notices.
(a) All notices required by this section shall be provided to the
alleged violator by certified mail, return receipt requested; by hand delivery
by the sheriff or other law enforcement officer, code inspector, or other
person designated by the local governing body; or by leaving the notice at
the violator's usual place of residence with any person residing therein
who is above 15 years of age and informing such person of the contents
of the notice.
(b) In addition to providing notice as set forth in this section, at
the option of the special a aastefmaaistrate, notice may also be served by
publication or posting, as follows:
(1) Such notice shall be published once during each week for
four consecutive weeks (four publications being sufficient) in
a newspaper of general circulation in Palm Beach County ,
5
Florida. The newspaper shall meet such requirements as
are pre- scribed under F.S. ch. 50 for legal and official
advertisements.
(2) Proof of publication shall be made as provided in F.S. §§
50.041 and 50.051.
(3) In lieu of publication as described in this section, such notice
may be posted for at least ten days in at least two locations,
one of which shall be the property upon which the violation is
alleged to exist and the other of which shall be at town hall.
(4) Proof of posting shall be by affidavit of the person posting
the notice, which affidavit shall include a copy of the notice
posted and the date and places of its posting.
(c) Notice by publication or posting may run concurrently with,
or may follow, an attempt or attempts to provide notice by hand delivery or
by mail as required under this section.
(d) Evidence that an attempt has been made to hand deliver or
mail notice as provided in this section, together with proof of publication or
posting as provided in this section shall be sufficient to show that the
notice requirements of this section have been met, without regard to
whether or not the alleged violator actually received such notice.
Sec. 2-76. Procedure to request that a fine or lien imposed
pursuant to section 2 -72 be reduced; conditions and
criteria therefor.
(a) The owner of real property against which a fine er- IieN has been
imposed pursuant to section 2 -72 may apply to the special
mastefmaaistrate, through the town attorney or his /her designee, for a
satisfaction of the fine Gr-4 -with less than full payment thereof. No such
application shall be considered by the special mastermaaistrate until the
applicant has first shown that:
(1) All ad valorem property taxes, special assessments, town
utility charges and other government- imposed liens against
the subject real property have been paid.
(2) The applicant is not personally indebted to the town for any
reason.
(3) All town code violations have been corrected under
necessary permits issued therefor.
(b) In considering an application to reduce a fine or lien imposed
pursuant to section 2 -72, no satisfaction thereof shall be approved by the
special mastefmaoistrate with less than full payment thereof, unless the
special mastefmaaistrate shall make a specific finding that no violation of
any ordinance de- scribed in section 2 -68 of this Code exists on the subject
real property.
(c) The balance of any fine or lien imposed pursuant to section
2 -72 that is reduced by the special mastermaoistrate shall be paid on such
terms as approved by the special mastermaoistrate.
(d) If the property for which an application for a fine reduction is
being considered is owned by a government or quasi - government entity,
0
the special mastermaaistrate may reduce such fine even if the violation
has not been corrected.
iiAUML aie.
Sec. 2 -77. Provisions supplemental and cumulative.
Nothing contained in this division shall in any way bar or prohibit
the maintenance of a suit at law or in equity by the town to enjoin or
correct any violation of the ordinances of the town, nor to bar or prohibit
the town from filing charges against any person, firm or corporation
violating any town ordinance as provided by existing laws. This division
shall be construed to be supplemental and cumulative with any and all
other remedies available to the town and not exclusive.
Sec. 2 -78. Alternative code enforcement procedures.
The town may employ other methods of code enforcement
including, but not limited to, the issuance of a notice to appear in county
court or arrest for violation of municipal ordinances as provided for in F.S.
ch. 901. Unless otherwise specifically authorized and provided for by law,
a person convicted of violating a municipal ordinance may be sentenced
to pay a fine not to exceed $500.00, and may be sentenced to a definite
term of imprisonment not to exceed 60 days, in a municipal detention
facility or other facility as authorized by law."
Section 2. 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 declared severable.
Section 3. 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.
Section 4. Codification.
This Ordinance shall be codified and made a part of the official Code of
Ordinances of the Town of Gulf Stream.
Section 5. Effective Date.
This Ordinance shall take effect immediately upon its passage and approval, as
provided by law.
A
PASSED AND ADOPTED in a regular, adjourned session on first reading this
5th day of May , 2006, and for a second and final reading on this 9th
day of June 2006.
ATT T:
Clerk
N:VCR \13147 -01 \Ord Chapter Code Enf.DOC
Commissioner
Commissioner
Commissioned �T
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
WILLIAM E AOCH, JR. Mayor
JOAN K. ORTHWEIN, Vice Mayor
FRED S. DEVITr III
CHRIS D. WHEELER
MDRIEL J. ANDERSON
March 6, 2012
Louis L. Roeder, Esquire
741.4 Sparkling Lake Road
Orlando, Florida 32819
Re: Christopher F. O'Hare
2520 Avenue Au Soleil
Gulf Stream, FL 33483
Dear Mr. Roeder:
Telephone
(sell zz"116
Fax
(561) 737 -0188
Town Manager
WILLIAM H. THRASHER
Town Clerk
RITA L TAYLOR
I am responding to your email to Mr. Randolph dated March 1, 2012 and your email to
me dated. March 5, 2012. You have asked several questions for which I will provide the
following answers and information.
This is to confirm that your client, Mr. O'Hare, has withdrawn the window and door
change out permit application. The Town will indicate "withdrawn" on this application.
Code Book
There is one code book for the Town of Gulf Stream. This code is used by the Town
Commission, Police Department, and Staff and is dte same code that is available to the
public. Interim amendments can be approved by ordinances through public process
which do not immediately get codified. When a code book is purchased, copies of the
un- codified ordinances are also provided at the time of purchase.
Landscape Permits "Anv"
Section 70 -146 through section70- 150 .provides standards and information for those
applicants desiring to install landscaping. In those sections references are made in
regards to what is "required ", "preferred", "discouraged" and "prohibited ". "The
landscape architectural standards have been developed to reinforce the overall character
and the image of the town environment." The use of the term "any" can be misleading in
nature as the scope of work, amount, type, impact on adjoining and abutting properties of
100 SEA ROAD, GULF STREAM, FLORIDA 33483
Christopher F. O'Hare
2520 Avenue Au Soleil
March 6, 2012
Part 2
the proposed landscape would be used to determine the level of approval required. A
level 1 application is often discussed with the City of Delray for their input to determine
the need of a permit. Also, the determination and/or decision by the planning and
building administrator can be based on section 66-1412 (h). That decision can be
challenged as provided in section 66 -145 (12). In fact, section 66 -141 2(h) becomes
relevant and applicable when the planning and building administrator has concerns about
the potential impact of the proposed plan.
Irrigation .Permit
The City of Delray will most likely require an irrigation permit. In the event that Delray
does not require an irrigation permit, a separate permit by the Town will not be
necessary.
Planting in the Town Right -of wa
One of the objectives of reviewing a landscape site plan is to help prevent unnecessary
infringement onto neighboring or abutting properties. Many times new owners are not
aware where their property lines actually are. The district of the subject property has
very large road right -of -ways and is not easily determined at first glance. The use of a
property survey can easily provide basic guidance in such determinations.
A similar situation occurred in 2004. This particular situation was observed by me when
doing my "weekly drive by" in Place Au Soleil. A new resident began "at will" to add
hedges in the front of the home near the roadway. In doing so, the fire hydrant was
covered from view. The owner was notified that the plantings were to be set back onto
his property and out of the right -of -way. The owner did not agree and presented a
challenge of my decision before the Town Commission. The Town Commission decided
with the administrator and further directed that if similar situations occurred, action was
to be taken to keep new plantings out of the Town's right-of-way. Additional discussion
took place as related to existing hedges in the right -of -way. I was directed to allow
existing hedges in the right -of -way but in the event changes to hedges were requested, or
occurred without a request, that I was to prohibit such actions. This is in part why your
client does observe hedges, and in some cases trees, located in a similar directional line
of sight. Through the natural evolution of the life cycle of landscape materials and
owners desiring various changes or upgrades the Town's right -of -way will be available
for infrastructure improvements. The Town Commission believes that this process is the
least disruptive corrective measure to the neighborhood and the Town residents. This
measure is consistent in all districts, not just the Place Au Soleil district.
Christopher F. O'Hare
2520 Avenue Au Solcil
March 6, 2012
Part 3
Metal Roof -- Princinle and Minor Accessory Structures
Your recently received email dated March 5, 2012 confirms, "In response to your email
query of March 2. 2012, my client knows gfat least tnvo properties in GuIfStream with
metal roofs. These properties are not single family homes".
There is a distinction that does render consequences because the entire 70 Chapter "Gulf
Stream Design Manual" pertains exclusively to single family homes. 4450 North
Ocean Boulevard was just annexed into the Town in March 2011 and permitting for this
structure was handled through the Palm Beach County review criteria. The Gulf Stream
Multi Family Code available and used for the 3851 North Ocean Boulevard was silent to
whether metal roofs could be used. Because the metal roof material was not stated or
listed as prohibited by the code, the metal roof material was approved.
The Town does not have a" list of metal roof materials" which you requested as such roof
materials are prohibited by two section 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 on a minor accessory
structure) ".
Therefore, a variance application would be required to allow the use of metal roof
materials. A public hearing of the variance before the Town Commission is necessary.
Property owners within 300 feet of this property will be noticed of this public hearing so
that they can be heard as related to the variance request. At this hearing Mr. O'Hare's
engineer can appear and present his findings, or he can have his letter placed in the
record. The Town Commission would also hear from experts used by the staff. 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. Within
a couple of days of the completion of the variance application your client will be
contacted to coordinate access to the premises.
Your client can also choose to challenge this administrative decision as provided in
section 66 -145 (12). The Town's staff will provide the necessary paperwork and
application materials upon your client's request.
Respectfully,
William H. Thrasher
Town Manager
Dill Thrasher
From:
Iou.roeder@gmail.com on behalf of Lou Roeder <Iou@louroeder.com>
Sent:
Thursday, May 10; -220 2 20'Afvl
To:
Bill Thrasher
Subject:
Plants in the Town right -of -ways
Mr. Thrasher,
Good morning.
Could you do me a favor? In your March 6th letter, when discussing planting in the Town rights -of -way, you
mentioned a 2004 situation, also in Place An Soleil, where your decision was challenged to the Commission, and
they directed you, in similar situations, to keep new plantings out of the rights -of -way. Could you please e -mail
and/or fax me the minutes from that meeting? I would appreciate it.
Thank you.
—7414 Sparkling Lake Road
Orlando, FL 32819
cell: 407 - 758 -4194
fax. 866 - 610 -6090
CONFIDENTIALITY NOTE: This email message and any attachments may contain confidential, privileged and
non- disclosable information. The information is intended only for the use of the individual or entity named on this
email. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this email information, is strictly prohibited and that the
documents should be returned to the sender immediately. If you have received this email in error or by accidental
transmission, please notify the sender by return email immediately, delete all electronic copies of this email and all
attachments and destroy all hard copies. Thank you.
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