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HomeMy Public PortalAboutPRR 14-1862Kelly Avery From: Kerry Kilday <Kilday @udkstudios.com> Sent: Monday, June 23, 2014 8:45 AM To: Ken Turn Subject: FW: PUBLIC RECORDS REQUEST - 2520 AAS GS - Sending mail server found on DNS Blacklist cache From: freddy farnsworth [ frederick .freddy.farnsworth @gmail.com] Sent: Sunday, June 22, 2014 9:07 PM To: Anne Booth Cc: Kerry Kilday Subject: PUBLIC RECORDS REQUEST - 2520 AAS GS - Sending mail server found on DNS Blacklist cache This email is a Public Record Request of public records in the possession of Urban Design Kilday Studios. If you are not the Custodian of Records for this entity, please forward this email to the Custodian of Records for Urban Design Kilday Studios, 477 S. Rosemary Avenue Suite 225, West Palm Beach, Florida 33401 Dear Custodian of Records for Urban Design Kilday Studios, This is a PUBLIC RECORDS REQUEST pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119.07 of the Florida Statutes. I wish to make a public records request of your agency for the following records: Any notes memos, reports, emails, photos, invoices, letters or any other records related to 2520 Avenue Au Soleil for the Town of Gulf Stream. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by §119.07(1)(0 of the Florida Statutes. Please take note of §119.07(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes making reasonable efforts to determine from other officers or employees within your agency whether such a record exists and, if so, the location at which the record can be accessed." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If any records are readily available, please produce those records first without waiting for all responsive records to be available. Produce the less readily available records as soon as they are available. If the public records being sought are maintained by your agency in an electronic format please produce the records in the original electronic format in which they were created or received. See §119.01(2)(f), Florida Statutes. If you anticipate the production of any of these public records to exceed $1.00 please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and /or records, as well as to distinguish the cost of labor and materials. If any records may be produced for less than $1.00, please produce those records first while waiting to obtain authorization from me to produce more costly records. Do not incur any costs that you expect me to pay which are greater than $1.00 until first obtaining my authorization to do so. All responses to this public records request should be made in writing to the following email address: frederick .freddy.farnsworthOgmail.com Paue I of I https: // photos- 1. dropbox. com/ t/ 2/ AADNGvCaDRrM3xLZp2zRChy- ie- jH34nlrph2EV_c5a -hAA 2/ 125095337/jp... 8/6/2015 Page I of I https: // photos -1. dropbox .com /t/2 /AADmpng5tVOV97P5 WJWKlnbEuRLgOY- _zo4RA6sfrAZQkQ/ 12/1250953... 8/6/2015 PuCC I of I https://photos-2.dropbox.com/t/2/AAC2yvQqCCkppcVGAI l cxoY646B VgNswm 14cZNdP W I wo]A/ 12/1250953... 8/6/2015 Page I of I https: // photos -5. dropbox .com /t/2 /AABpCXnOmNlXvxeiU 1 crglEFgZmd8bML- g4x5PG8xytDkCw/ 12/12509533... 8/6/2015 Page I of I https: // photos -3. dropbox .com /t/2 /AABNkBBBCDzXH4b01 dlkuw2E- RxLk6_AY I lhtroiYQ1JXA/ 12/12509533 7... 8/6/2015 Page I of 1 https: // photos -3. dropbox.com /t/2 /AAA513RS09QxdB4 jBMENpMyWWbflCG7z3OzroZaaLI60Q /12/12509533... 8/6/2015 Page 1 of 1 https:H photos -6.dr opbox. com /t/2 /AACHIlfBovUza8l22s7O26mTQ 1 QpD6 WHj88rmijR41bizA/ 12/125095337/jp... 8/6/2015 Page 1 of 1 https: // photos -3. dropbox. com/ t/ 2/ AAB996pMQJhv474DbxYxdAEu9Bg5MBKbmTD8e7xVrBQCgQ /12/ 125095... 8/6/2015 Page I of I https: // photos- 2.dropbox.com /t/2 /AABTXF4F4ld l3lRrZRImCljpE7x7zl4gRBwCMm9Gg8ZCmw/ 12/ 12509533... 8/6/2015 Page I of I https:/ /photos- 2.dropbox.com /t/2 /AABD WGrxEJSGJmREoPTtXLTaPJyMvHxRdPUUZSuw7KYQwg 112/ 1250... 8/6/2015 paee I of I https:/ /photos - I .dropbox. com /t/2 /AADt V mr6 V irmTUgDFDkioF W 19MZr5 k7ei LKsRvMTTbz8Aw/ 12/ 12509533... 8/6/2015 Page 1 of 1 https:/ /photos -1. dropbox.com /t/2 /AADxUlvP l 56lyCB9rSPp248 L W Rhwjp4 gtKSQt6gEx V 5Xhg112/ 125095337/j... 8/6/2015 Page I of I https:/ /photos- I.dropbox.com /t/2 /AAAK14RG 16NIY -tW v47L5O W I vGgul3aSo0y WkuepUsZy3Q/ 12/ 12509533... 8/6/2015 Pale I of I ht tps:// photos -2. dropbox. com/ t/ 2 /AAB7506Xt9YCMZCkdhZnP7GuLu5fl OkTTMmUc- n2BAre6A/ 12/ 12509533... 8/6/2015 Page I of 1 https:/ /photos -5. dropbox. com /t/2 /AACo VNf6JVQyBmLgrNQQgfnILO WkcQ209HR5XHIYSuKgYQ /12/12509... 8/6/2015 i Page I of I https: // photos -4. dropbox. com/ t/ 2/ AABaASEBQias6Un8cOZCyOwOrZGUUHfZHesTbwcp- Gz9KQ/ 12/1250953... 8/6/2015 Page 1 of 1 https: // photos- 5.dropbox.com /t/2 /AAC5xXPzkzmMP WPA7kz3zWOsZ Wvugwn7mRe7zz_XNf]LgA112 /125095... 8/6/2015 Page 1 of 1 ht tps:// photos- 2.dropbox.com /t/2 /AAAnzMgj 8gBXwJ_6MwLvpw Ug4MtFOQrl4 Fgemxp_IG47Dgl12/ 12509533... 8/6/2015 Page 1 of 1 uu++ https: / /photos -6. dropbox. com/ tl2/ AABNXG _gQOpAcNLLD06gRBkRnzLk5i5VNair SoGJmIOmg112 /1250953... 8/6/2015 Photos 86, 87, 88, 91, 92, 98 These quality ornamental trees are either a variety of Tree Ligustrum ( Ligustrum spo.) or Cattley Guava (Psidium cattleianum). The Cattley Guava trees are listed on the Florida Exotic Plants Council List of Invasive Plants. The Cattley Guava trees are still sold commercially by many nurseries in south Florida. The Ligustrum trees remain a favorite small ornamental tree of south Florida. Photos 89, 90, 94, 96, The majority of these small palms are Lady Palms (Rhapis soo.). They can become dense if grown is a shady area. These planting areas appear too sunny for Lady Palms to perform optimally. The general quality of the palms would be considered to not be Florida Number 1. Photos 93, 95, 96, 97 There are two plants in these photographs. The Lady Palms (Rhapis spp.) appear again alongside a small tree that is either a Royal Poinciana tree (Delonix regia) or a Jacaranda tree (Jacaranda ocutifolia). Both of these trees grow to be medium size trees of about 50' x 50' size that lose their leaves during Winter. If the trees were full size they might provide enough shade for the Lady Palms to perform optimally. Photo 101 These quality tall hedge forming shrubs are a variety of Pitch Apple, probably known as Small Leaf Clusia ( Clusia guttifera). Photos of 100, 101, 102 103, 104 These photos are of quality large Areca Palms (DVpsis lutescens) planted closely together to form a large 'hedge' or buffer to the adjacent street. These palms are under planted with what appear to be a variety of bougainvillea (Bougainvillea sop.) , a favorite colorful vining or shrub like plant used throughout southern Florida. The Bougainvillea plants perform best in full sun, and are also very tender to the cold. D RECEIVED MAR 13 2014 Town of Gulfstream Fl. APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING & BUILDING ADMINISTRATOR Date or Application 1. Project Information 3112/14 Fee: $400.00 Owner Name: Christ . O'Hare Owner Signature: Project Address: 2516 Avenue Au Solail, Gulf Stream, FL Project Property Legal Description: Lot 36, Place Au Solell, PBC, FL _ Project Description as Requested (describe in detail) Revision request to Permit No. 11-136068 to install a "solar- sandwich' metal roof (as ALLOWED under Sections 163.04 FS, 163.08 FS & 193.624 FS, especlaNy 163.04(1) - see copy of original pem* apple ation and relevant regulations attachedg. II. Final Action or Planning & Building Administrator Feb 14, 2014 denial of our Feb 5, 2014 request to install a'solar- sandwich• metal roof (see attached e-mit ffom Freda Defosse, Town of Gulf Stream, & a copy of our original pemrit applkation) Ill. Reason for Appeal Building Administrators denial is contrary to Florida Statutes 163.04, in that a solar- sandwich metal roof is "an energy de- vice based on renewable resources; and should be approved. IV. Standards to he Addressed by Applicant: (1) Acted in a manner inconsistent with the provisions of this Code or other applicable local, state or federal law; Building Administrator's denial is contrary to Sections 163.04 FS, 163.08 FS & 193.624 FS (copies aftached). (2) Made erroneous findings of fact hosed on the evidence and testimony placed before the final review authority at a public hearing; N/A (3) Failed to fully consider mitigating measures or revisions offered by the applicant that would have brought the proposed project into compliance with the applicable regulations. Failure to consider Section 163.04, FS (see copy of relevant regu- lations attached). V. Please attach color swatch, pictures or plans showing the proposed improvement. See permit application attached. Official Use Only Public Hearing Dale: Action: tmsrot e,wcosh.tkp F�. *RECEIVED-4 FEB() i, 2014 Town of Gu!(s!; am F, ' !mod [Will OF OELRR4 MM 1 I I CITY OF DELRAY BEACH tt REVISION REQUEST Date 2- J 1 L4 Permit Number: i 13 6 0 6 5 Address Where Work Is Being Done (to include unit or bay number): ZSZo R-UONti, AV SOL_fjL, APPLICANT NAME. 1.140 ST(DQF}'M O kWLil Phone: (Sb►I 53 O-• 7 S C Fax: ( �•) Z 6 Contact Person 5AtAG Cell Phone e: (,, ) 5'4_R_H4 zo ray ADDED CONSTRUCTION COST FOR THIS CHANGE $3 -7 avo EXPLAINREVISION INSTFlU, "SoLft SPtN0Ldlct4" RWF 5X5M" Ar PFbtDroe-R(c F) Lwl oN 5T4Uf d(, -sIMn Sit_ revr ct.00& ne/2 SaArz Tft MN__ f- t�r�naN N+a -,�aaL _ MC6f9I%Jb s PLYM&(Nr. rr0L ftTa) c CDN � t° S.' PMM I -ri =% Sif-R s�R�o QS tv R£ A�YIMIAICA NOTE To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the Job site plans I understand a fee A charged in accordance with the City of Delray Beach LDR 2.421. The fee for a revision iS S75 n0 for thp(fi shel, and $1 -DO for each additional revised sheet For ADDED CONSTRUCTION COST, the fee will be ba the uilding Permit Fees SIGNED OFFICE USE ONLY ROUTING: FEES: PATH DEPT. APPROVED BY/DATE. REVISION FEE PLAN REVIEWER DATE ADDED VALUE PERMIT FEE 5 OTHER FEES AS APPLICABLE Parks: S Public SWg3 S Schools S Road 5 Radon S DPR $ Other S TOTAL FEES DUE: Rvsd 6110 Solar Sandwich Roof System Photo Voltaic (PV) Film panels adhered to standing seam steel roof panels applied over a channeled network of solar thermal collection tubing. Typical Section showing Schedule of Materials: PV Film on steel standing seam roof covering over solar thermal collector network. Example of solar thermal collector network prior to application of standing seam steel roof panels. PV Film adhered to standing seam steel roof panels. 2 Views of partially completed Solar Sandwich Roof System Note • Exposed standing seem steel roof panels can be supplied by manufacturer In any color required by Tom Code. • PV Film panels are only available in dark blue. • Owner's preference Is for steel panels to match the color of PV Film panels as closely as possible to produce a unified appearance. • System only functlons when all elements are present. PV Film can ONLY be applied to a standing seam metal roof substrate. 163.04 Energy devices based on renewable resources. — (1) Notwithstanding any provision of this chapter or other provision of general or special law, the adoption of an ordinance by a governing body, as those terms are defined in this chapter, which prohibits or has the effect of prohibiting the installation of solar collectors clotheslines or other energy devices based on renewable resources is expressly prohibited. (2) A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit. Such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 450 east or west of due south if such determination does not impair the effective operation of the solar collectors. (3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney's fees. (4) The legislative intent in enacting these provisions is to protect the public health, safety, and welfare by encouraging the development and use of renewable resources in order to conserve and protect the value of land, buildings, and resources by preventing the adoption of measures which will have the ultimate effect, however unintended, of driving the costs of owning and operating commercial or residential property beyond the capacity of private owners to maintain. This section shall not apply to patio railings in condominiums, cooperatives, or apartments. Page 1 of 12 History. —s. 8, ch. 80 -163; s. 1, ch. 92 -89; s. 14, ch. 93 -249; s. 1, ch. 2008 -191; s. 3, ch. 2008 -227. 163.08 Supplemental authority for improvements to real property. — (1)(a) In chapter 2008 -227, Laws of Florida, the Legislature amended the energy goal of the state comprehensive plan to provide, in part, that the state shall reduce its energy requirements through enhanced conservation and efficiency measures in all end -use sectors and reduce atmospheric carbon dioxide by promoting an increased use of renewable energy resources. That act also declared it the public policy of the state to play a leading role in developing and instituting energy management programs that promote energy conservation, energy security, and the reduction of greenhouse gases. In addition to establishing policies to promote the use of renewable energy, the Legislature provided for a schedule of increases in energy performance of buildings subject to the Florida Energy Efficiency Code for Building Construction. In chapter 2008 -191, Laws of Florida, the Legislature adopted new energy conservation and greenhouse gas reduction comprehensive planning requirements for local governments. In the 2008 general election, the voters of this state approved a constitutional amendment authorizing the Legislature, by general law, to prohibit consideration of any change or Improvement made for the purpose of improving a property's resistance to wind damage or the installation of a renewable energy source device in the determination of the assessed value of residential real property. (b) The Legislature finds that all energy- consuming- improved properties that are not using energy conservation strategies contribute to the burden affecting all improved property resulting from fossil fuel energy production. Improved property that has been retrofitted with energy - related qualifying improvements receives the special benefit of alleviating the property's burden from energy consumption. All improved properties not protected from wind damage by wind resistance qualifying improvements contribute to the burden affecting all improved property resulting from potential wind damage. Improved property that has been retrofitted with wind resistance qualifying improvements receives the special benefit of Page 2 of 12 reducing the property's burden from potential wind damage. Further, the installation and operation of qualifying improvements not only benefit the affected properties for which the improvements are made, but also assist in fulfilling the goals of the state's energy and hurricane mitigation policies. In order to make qualifying improvements more affordable and assist property owners who wish to undertake such improvements, the Legislature finds that there is a compelling state interest in enabling property owners to voluntarily finance such improvements with local govemment assistance. (c) The Legislature determines that the actions authorized under this section, including, but not limited to, the financing of qualifying improvements through the execution of financing agreements and the related imposition of voluntary assessments are reasonable and necessary to serve and achieve a gomoellina state inter and are necessary for the prosperity and welfare of the state and its property owners and inhabitants. (2) As used in this section, the term: (a) "Local government" means a county, a municipality, a dependent special district as defined in s. 189.403, or a separate legal entity created pursuant to s. 163.01(7). (b) "Qualifying improvement" includes any: 1. Energy conservation and efficiency improvement, which is a measure to reduce consumption through conservation or a more efficient use of electricity, natural gas, propane, or other forms of energy on the property, including, but not limited to, air sealing; installation of insulation; installation of energy - efficient heating, cooling, or ventilation systems; building modifications to increase the use of daylight; replacement of windows; Installation of energy controls or energy recovery systems; installation of electric vehicle charging equipment; and installation of efficient lighting equipment. 2. Renewable energy improvement, which is the installation of any system in which the electrical, mechanical, or thermal energy is produced from a method that uses one or more of the following fuels or energy sources: hydrogen, solar enemy, geothermal energy, bioenergy, and wind energy. Page 3 of 12 3. Wind resistance improvement, which includes, but is not limited to: a. Improving the strength of the roof deck attachment; b. Creating a secondary water barrier to prevent water intrusion; c. Installing wind - resistant shingles; d. Installing gable -end bracing; e. Reinforcing roof -to -wall connections; f. Installing storm shutters; or g. Installing opening protections. (3) A local government may levy non -ad valorem assessments to fund qualifying improvements, (4) Subject to local government ordinance or resolution, a property owner may apply to the local government for funding to finance a qualifying improvement and enter into a financing agreement with the local government. Costs incurred by the local government for such purpose may be collected as a non -ad valorem assessment. A non -ad valorem assessment shall be collected pursuant to s. 197.3632 and, notwithstanding s. 197.3632(8)(a), shall not be subject to discount for early payment. However, the notice and adoption requirements of s. 197.3632(4) do not apply if this section is used and complied with, and the intent resolution, publication of notice, and mailed notices to the property appraiser, tax collector, and Department of Revenue required by s. 19 . 32(3)(a) may be provided on or before August 15 in conjunction with any non -ad valorem assessment authorized by this section, if the property appraiser, tax collector, and local government agree. (5) Pursuant to this section or as otherwise provided by law or pursuant to a local government's home rule power, a local government may enter into a partnership with one or more local governments for the purpose of providing and financing qualifying improvements. Page 4 of 12 (6) A qualifying improvement program may be administered by a for -profit entity or a not - for- profit organization on behalf of and at the discretion of the local government. (7) A local government may incur debt for the purpose of providing such improvements, payable from revenues received from the improved property, or any other available revenue source authorized by law. (8) A local government may enter into a financing agreement only with the record owner of the affected property. Any financing agreement entered into pursuant to this section or a summary memorandum of such agreement shall be recorded in the public records of the county within which the property is located by the sponsoring unit of local government within 5 days after execution of the agreement. The recorded agreement shall provide constructive notice that the assessment to be levied on the property constitutes a lien of equal dignity to county taxes and assessments from the date of recordation. (9) Before entering into a financing agreement, the local government shall reasonably determine that all property taxes and any other assessments levied on the same bill as property taxes are paid and have not been delinquent for the preceding 3 years or the property owner's period of ownership, whichever is less; that there are no involuntary liens, including, but not limited to, construction liens on the property; that no notices of default or other evidence of property-based debt delinquency have been recorded during the preceding 3 years or the property owner's period of ownership, whichever is less; and that the property owner is current on all mortgage debt on the property. (10) A qualifying improvement shall be affixed to a building or facility that is part of the property and shall constitute an improvement to the building or facility or a fixture attached to the building or facility. An agreement between a local government and a qualifying property owner may not cover wind - resistance improvements in buildings or facilities under new construction or construction for which a certificate of occupancy or similar evidence of substantial completion of new construction or improvement has not been issued. Page 5 of 12 (11) Any work requiring a license under any applicable law to make a qualifying improvement shall be performed by a contractor properly certified or registered pursuant to part I or part II of chapter 489. (12)(a) Without the consent of the holders or loan servicers of any mortgage encumbering or otherwise secured by the property, the total amount of any non -ad valorem assessment for a property under this section may not exceed 20 percent of the just value of the property as determined by the county property appraiser. (b) Notwithstanding paragraph (a), a non -ad valorem assessment for a qualifying improvement defined in subparagraph (2)(b)1. or subparagraph (2)(b)2. that is supported by an energy audit is not subject to the limits in this subsection if the audit demonstrates that the annual energy savings from the qualified improvement equals or exceeds the annual repayment amount of the non -ad valorem assessment. (13) At least 30 days before entering into a financing agreement, the property owner shall provide to the holders or loan servicers of any existing mortgages encumbering or otherwise secured by the property a notice of the owner's intent to enter into a financing agreement together with the maximum principal amount to be financed and the maximum annual assessment necessary to repay that amount. A verified copy or other proof of such notice shall be provided to the local government. A provision in any agreement between a mortgagee or other lienholder and a property owner, or otherwise now or hereafter binding upon a property owner, which allows for acceleration of payment of the mortgage, note, or lien or other unilateral modification solely as a result of entering into a financing agreement as provided for in this section is not enforceable. This subsection does not limit the authority of the holder or loan servicer to increase the required monthly escrow by an amount necessary to annually pay the qualifying improvement assessment. (14) At or before the time a purchaser executes a contract for the sale and purchase of any property for which a non -ad valorem assessment has been levied under this section and has an unpaid balance due, the seller shall give the prospective purchaser a written Page 6 of 12 disclosure statement in the following form, which shall be set forth in the contract or in a separate writing: QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY, OR WIND RESISTANCE. —The property being purchased is located within the jurisdiction of a local government that has placed an assessment on the property pursuant to s. 163.08. Florida Statutes. The assessment is for a qualifying improvement to the property relating to energy efficiency, renewable energy, or wind resistance, and is not based an the value of property. You are encouraged to contact the county property appraiser's office to learn more about this and other assessments that may be provided by law. (15) A provision in any agreement between a local government and a public or private power or energy provider or other utility provider is not enforceable to limit or prohibit any local government from exercising its authority under this section. (16) This section is additional and supplemental to county and municipal home rule authority and not in derogation of such authority or a limitation upon such authority. History. —s. 1, ch. 2010 -139; s. 1, ch. 2012 -117. 1193.624 Assessment of residential property. — (1) As used in this section, the term "renewable energy source device" means any of the fallowing equipment that collects, transmits, stores, or uses solar energy, wind energy, or energy derived from geothermal deposits: (a) Solar energy collectors, photovoltaic modules, and inverters. (b) Storage tanks and other storage systems, excluding swimming pools used as storage to nks. (c) Rockbeds. (d) Thermostats and other control devices. (e) Heat exchange devices. (f) Pumps and fans. Page 7 of 12 (g) Roof ponds. (h) Freestanding thermal containers. (i) Pipes, ducts, refrigerant handling systems, and other equipment used to interconnect such systems; however, such equipment does not include conventional backup systems of any type. (j) Windmills and wind turbines. (k) Wind -driven generators. (1) Power conditioning and storage devices that use wind energy to generate electricity or mechanical forms of energy. (m) Pipes and other equipment used to transmit hot geothermal water to a dwelling or structure from a geothermal deposit. (2) In determining the assessed value of real property used for residential purposes, an increase in the just value of the property attributable to the installation of a renewable energy source device may not be considered. (3) This section applies to the installation of a renewable energy source device installed on or after January 1, 2013, to new and existing residential real property. History. —s. 1, ch. 2013 -77. 'Note. — Section 8, ch. 2013 -77, provides that "[t]his act shall take effect July 1, 2013, and applies to assessments beginning January 1, 2014." 366.91 Renewable energy. — (1) The Legislature finds that it is in the public interest to promote the development of renewable energy resources in this state. Renewable energy resources have the potential to help diversify fuel types to meet Florida's growing dependency on natural gas for electric production, minimize the volatility of fuel costs, encourage investment within the state, improve environmental conditions, and make Florida a leader in new and innovative technologies. (2) As used in this section, the term: Page 8 of 12 (a) "Biomass" means a power source that is comprised of, but not limited to, combustible residues or gases from forest products manufacturing, waste, byproducts, or products from agricultural and orchard crops, waste or coproducts from livestock and poultry operations, waste or byproducts from food processing, urban wood waste, municipal solid waste, municipal liquid waste treatment operations, and landfill gas. (b) "Customer -owned renewable generation" means an electric generating system located on a customer's premises that is primarily intended to offset part or all of the customer's electricity requirements with renewable energy. (c) "Net metering" means a metering and billing methodology whereby customer -owned renewable generation is allowed to offset the customer's electricity consumption on site. (d) "Renewable energy" means electrical energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen produced from sources other than fossil fuels, biomass, solar energy, geothermal energy, wind energy, ocean energy, and hydroelectric power. The term includes the alternative energy resource, waste heat, from sulfuric acid manufacturing operations and electrical energy produced using pipeline - quality synthetic gas produced from waste petroleum coke with carbon capture and sequestration. (3) On or before January 1, 2006, each public utility must continuously offer a purchase contract to producers of renewable energy. The commission shall establish requirements relating to the purchase of capacity and energy by public utilities from renewable energy producers and may adopt rules to administer this section. The contract shall contain payment provisions for energy and capacity which are based upon the utility's full avoided costs, as defined in s. 366.051; however, capacity payments are not required if, due to the operational characteristics of the renewable energy generator or the anticipated peak and off -peak availability and capacity factor of the utility's avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years. Prudent and reasonable costs associated with a renewable energy contract shall be recovered from the ratepayers of the Page 9 of 12 contracting utility, without differentiation among customer classes, through the appropriate cost - recovery clause mechanism administered by the commission. (4) On or before January 1, 2006, each municipal electric utility and rural electric cooperative whose annual sales, as of July 1, 1993, to retail customers were greater than 2,000 gigawatt hours must continuously offer a purchase contract to producers of renewable energy containing payment provisions for energy and capacity which are based upon the utility's or cooperative's full avoided costs, as determined by the governing body of the municipal utility or cooperative; however, capacity payments are not required if, due to the operational characteristics of the renewable energy generator or the anticipated peak and off -peak availability and capacity factor of the utility's avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years. (5) On or before January 1, 2009, each public utility shall develop a standardized interconnection agreement and net metering program for customer -owned renewable generation. The commission shall establish requirements relating to the expedited interconnection and net metering of customer -owned renewable generation by public utilities and may adopt rules to administer this section. (6) On or before July 1, 2009, each municipal electric utility and each rural electric cooperative that sells electricity at retail shall develop a standardized interconnection agreement and net metering program for customer -owned renewable generation. Each governing authority shall establish requirements relating to the expedited interconnection and net metering of customer -owned generation. By April 1 of each year, each municipal electric utility and rural electric cooperative utility serving retail customers shall file a report with the commission detailing customer participation in the interconnection and net metering program, including, but not limited to, the number and total capacity of interconnected generating systems and the total energy net metered in the previous year. Page 10 of 12 (7) Under the provisions of subsections (5) and (6), when a utility purchases power generated from biogas produced by the anaerobic digestion of agricultural waste, including food waste or other agricultural byproducts, net metering shall be available at a single metering point or as a part of conjunctive billing of multiple points for a customer at a single location, so long as the provision of such service and its associated charges, terms, and other conditions are not reasonably projected to result in higher cost electric service to the utility's general body of ratepayers or adversely affect the adequacy or reliability of electric service to all customers, as determined by the commission for public utilities, or as determined by the governing authority of the municipal electric utility or rural electric cooperative that serves at retail. (8) A contracting producer of renewable energy must pay the actual costs of its interconnection with the transmission grid or distribution system. History. —s. 1, ch. 2005 -259; s. 41, ch. 2008 -227; s. 16, ch. 2010 -139. 377.803 Definitions. —As used in ss. 377.801 - 377.807, the term: (1) "Act" means the Florida Energy and Climate Protection Act. (2) "Department" means the Department of Agriculture and Consumer Services. (3) "Person" means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, or any other public or private entity. (4) "Renewable energy" means electrical, mechanical, or thermal energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen, biomass, as defined in s. 366.91, solar enerov, geothermal energy, wind energy, ocean energy, waste heat, or hydroelectric power. (5) "Renewable energy technology" means any technology that generates or utilizes a renewable energy resource. (6) "Solar energy system" means equipment that provides for the collection and use of incident solar energy for water heating, space heating or cooling, or other applications that would normally require a conventional source of energy such as petroleum products, natural Page 11 of 12 gas, or electricity that performs primarily with solar energy. In other systems in which solar energy is used in a supplemental way, only those components that collect and transfer solar energy shall be included in this definition. (7) "Solar photovoltaic system" means a device that converts incident sunlight into electrical current. (8) "Solar thermal system" means a device that traps heat from incident sunlight in order to heat water. History. —s. 4, ch. 2006 -230; s. 59, ch. 2008 -227; s. 516, ch. 2011 -142. Page 12 of 12 From: Freda Defosse <fdefossengulf- stream.ora> Date: Fri, Feb 14, 2014 at 10:56 AM Subject: RE: vertical axis wind turbine application To: Chris O'Hare < chrisohareoulfstreamlMomail.com> Dear Mr. O'Hare. Your application for a permit for a solar sandwich roof system to be installed at 2520 Avenue Au Soleil, submitted on February 5, 2014, has been denied because the Town's Code of Ordinances expressly prohibits metal roofs within the Town within Section 70-99 (3) and Section 70 -187. As such, metal roofs are not permitted under the Town's Code. Freda DeFosse Administrative Assistant Town of Gulf Stream TOWN OF GULF STREAM EMAIL DISCLAIMER: PLEASE NOTE: Florida has a very broad public records law. Most written communication to or from local officials regarding town business is considered public records and available to the public and media upon request. Your email communications may therefore be subject to public disclosure. Kelly Avery From: Randolph, John C. <JRandolph @jonesfoster.com> Sent: Monday, January 06, 2014 2:01 PM To: Marty Minor Subject: RE: Gulf Stream permit review Attachments: SDOC2146.pdf ATTORNEY CLIENT PRIVILEGE — SEE ATTACHED. JONESFOSTER w11N5MN& tveal,rn. John C. Randolph Attorney Direct Dial: 561.650.0458 1 Pas: 561.650.5300 1 irandolph@ionesfoster.com Jones, Foster, Johnston & Snihh<. P.A. Hagler Center Tone i wler Drive, Suite 1100, West Palm Beach, Florida 13 101 561 - 659 -3000 1 www.jonesfoster.eom U.S. Treasure Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming entails are filtered which mae delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissetnination, or copying of this email is prohibited please immediately notify us by email and delete die original message. From: Marty Minor [mailto:MMinor @udkstudios.com] Sent: Monday, January 06, 2014 12:00 PM To: Randolph, John C. Subject: Gulf Stream permit review Skip, Happy New Year and I hope you had a good holiday break. I've been reviewing the permit application for the power - generating windmill at 2520 Avenue Au Soled. After reviewing the code, I don't believe this use is allowed. Within the Place Au Soleil zoning district, only single family homes are permitted. In order to be permitted, the windmill would have to be considered as an accessory use. In Section 66 -1 of the Town Code, accessory use is defined as: Accessory building, structure or use shall mean a building, structure or use on the same lot with, and of a nature customarily incidental and subordinate to, the principal building, structure or use. I don't believe that a windmill would qualify as an accessory structure or use as it is not "customarily" or traditionally used with a single family home in the Town. Also, windmill are not considered within the Accessory Uses /Structures discussed in Section 66 -366 to 66 -370 of the Town Code. I am not aware of existing windmills in the Town. I also had the opportunity to check with Palm Beach County to see if they had any regulations regarding personal windmills. The County doesn't have any regulations for windmills as an accessory use — largely because they haven't had request for personal windmills. The County only has regulations regarding the large (100 ft. +) windmills as a primary use. I believe the homeowner will need to request an amendment to the Town Code to allow for a windmill on his property. In considering a text amendment, the Town will need to look at the impacts of height, noise, aesthetics, wildlife and appropriateness for a single family neighborhood. For example, the manufacturer information submitted with the permit application recommends that the windmill be located 250 feet away from obstacles, including trees and houses. The homeowner is proposing to place the windmill 25 feet from the property line and about 35 feet from his house. Let me know what you think. If you don't have any concerns with the above position, I will draft a memo regarding the permit for the Town. Thank you, marty Marty R.A. Minor, AICP Urban Design Kilday Studios The Offices at City Place North 477 South Rosemary Avenue, Suite 225 West Palm Beach, Florida 33401 -5758 561- 366 -1100 urban The Offices at CityPlace North ph. (561) 366.1100 .S�' n 477 S. Rosemary Avenue, Suite 225 f. )561) 366.1111 U west Palm Beach, Florida 33401 www.udkstudios.com ki I - S T U D I O S Urban Planning and Design I Landscape Architecture I Communication Graphics JONES FOSTER JOHNSTON &STUBBS, P.A. Memo To: John C. Randolph From: Kelly A. Gardner Date: January 3, 2014 Subject: Windmill Building Request Question Presented: Under Florida law, may a municipality regulate the installation of a windmill on a homeowner's property? Discussion: It is unlikely that the Town of Gulf Stream ( "the Town ") will be able to prohibit Mr. O'Hare's Building Permit Revision Request to build a windmill; however, certain Town regulations, such as zoning ordinances, may be permitted. A municipality has no authority to prohibit the installation of a windmill on a homeowner's property since it is an energy device based on renewable resources. Section 163.04 of the Florida Statutes restricts the authority of a municipality to regulate energy devices based on renewable resources. The statute forbids governing bodies from enacting or enforcing ordinances, deed restrictions, covenants, or similar binding agreements that prohibit or have the effect of prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." Section 163.04(2) provides, in pertinent part: "A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit." § 163.04(2) Fla. Stat. (2013). Thus, under this statute, the Town may not prevent Mr. O'Hare from installing a windmill on his property. However, while a municipality may not prevent the installation of an energy device based on renewable resources, the application of some municipal regulations has been permitted so long as it does not interfere with the satisfactory performance of the energy device. For example, in City of Ormond Beach v. State, a homeowner applied for height and side -yard zoning variances to allow him to install a windmill on his property that would exceed the permitted height and be located closer to his property January 3, 2014 Page 2 line than normally allowed. See 426 So. 2d 1029, 1030 -31 (Fla. 4th DCA 1983). The court held: "Section 163.04 eliminates the need to prove a hardship as a basis for the property owner's desire to install the energy device, but it does not, however, mean that appellee can place the windmill where he pleases or to such height as he pleases. He must still abide by the setback and height restrictions of the zoning ordinance, unless he can demonstrate the requisites for a variance; Le , that the variance is needed so that the windmill can operate satisfactorily" Id. at 1032. The court explained that section 163.04 did not entitle the homeowner to variances necessary for "optimum performance" of the windmill; but rather, the homeowner must comply with zoning regulations as long as the energy device still performed satisfactorily. See Id. Therefore, here, the Town cannot prohibit the building of a windmill, but the Town may require Mr. O'Hare to comply with Town regulations, such as zoning ordinances, as long as the windmill can operate satisfactorily. 11J(spl2\apps\dors \13147 \00001\mem \ihv2940 dou 561- 737 -0188 town of gulf stream 09:25:57 a.m. 04 -04 -2013 116 FAX Cover Sheet Marty Minor Urban Design Kilday Phone: Fax Phone: 366 -1111 Date: 4-4-13 (Number ofpages including cover sheet.- 6 Rita rnone: 561- 276 -5776 Fax Phone: 561- 737 -0788 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: No x 5b1- /i / -utae town at suit stream 09:26:06 a.m. 04 -04 -2013 216 CODE ENFORCEMENT ORDER TOWN OF GULF STREAM, FLORIDA TOWN OF GULF STREAM, Petitioner, VA CHRISTOPHER O'HARE and SHELLY O'HARE, Respondent. Case No. CE 1 -13 Re: Violation of Sections 58- 138(6), 70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of the Town of Gulf Stream. Address: 2520 Avenue Au Soleil , Gulf Stream, Florida Legal Description: PLACE AU SOLEIL LT 36 The Special Magistrate appointed by the Town Council to hear code enforcement cases for the Town of Gulf Stream, in accordance with Chapter 162, Florida Statutes, has heard and considered testimony from Bill Thrasher (Town Manager), Marty Minor, Christopher O'Hare (Respondent), and Craig Stresau, has considered the evidence, and argument of counsel for each party at the Code Enforcement Hearing held on the 21't day of March, 2013, and being otherwise fully apprised in the premises, hereby makes the following FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER: FINDINGS OF FACT The Respondent, CHRISTOPHER O'HARE, was present at the hearing and represented by Counsel. 561- 737 -0188 town of gulf stream 09:26:17 a.m. 04 -04 -2013 3/6 2. The Town of Gulf Stream was present at the hearing and represented by counsel. 3. Respondent is the owner of the property located at 2520 Avenue Au Soleil, Gulf Stream, Florida (Legal Description PLACE AU SOLEIL LT 36) (the "Property"). 4. The Town Manager was notified of the potential violations on the Property by a Town maintenance worker. 5. The Town received input from members the home owners' association after being notified of the potential violations by the Town's maintenance worker. 6. The maintenance worker took photographs of the alleged violations on October 8, 2012, 7. The photographs show a line of lady palms planted across the driveway of the Property. 8. Thereafter, the Town Manager personally viewed the alleged violations on the Property and consulted with Marty Minor, A1CP, of Urban Design Kilday Studios, which had originally drafted the Town's Code of Ordinances relating to the Design Manual. 9. Mr. Minor personally visited the Property on October 10, 2012, and took photographs. 10. On October 16, 2012, Mr. Minorprovided an opinion to the Town regarding the plantings and his opinion as to whether the plantings complied with the Town's Code. 11. On November 5, 2012, the Town issued a Notice of Violation regarding sections 58- 138(b) 70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of the Town of Gulf Stream, providing thirty (30) days for compliance. 12. On January 17, 2013, the Town provided additional time for Respondent to comply, to wit: January 31, 2013. 13. On February 25, 2013, the Town issued allotice of Violation and Notice of Hearing providing Respondent a final opportunity to comply on or before March 12, 2013, 14. The Town Manager and Mr. Minor testified that plantings across the Property's driveway did not comply with the "open front lawn" characteristic of the Place Au Soleil District where the Property is located because the home and front door are not open to, or viewable from, the street. 15. Respondent testified that there are 31 "closed" front lawns in the Place Au Soleil District. 16, The Town Manager testified that there may be some "closed" front lawns within Place An Soleil District due to having been "grandfathered in" prior to the changes in the Town's Code 561- 737 -0188 town of gulf stream 09:26:35 a.m. 04 -04 -2013 416 regarding landscape design. 17. Mr. Stresau, a landscape architect, testified that he did not believe the Townproperly defined "open front lawn" and believed it could also mean that the lawn in front of the plantings and behind the plantings was "open ". 18. The Town Manager testified that Respondent previously applied for a permit in November of 2011 to change the exterior color of his home and an exterior wall. The Town Manager testified that the form on which Respondent signed provided for a list of different types of projects requiring review, including those involving "landscape alterations ", which he testified was indicated in Section 66 -81 of the Town's Code. 19. Respondent was not cited for failure to apply for administrative review or failure to get a permit for landscaping changes under Section 66 -81. 20. Mr. Minor testified that if a plant were not on the list in Section 70 -150, then it could not be planted. 21. The Respondent testified that he did not think the list in Section 70 -150 was exhaustive and did not believe that non - listed plants were prohibited. 22. Mr. Stresau, a landscape architect, testified that if the Town's Code listing of examples in Section 70 -150 of plants were an exclusive list, for which all other plants were prohibited, it would be impossible to develop a landscape plan from that list for a homeowner. 23. Mr, Thrasher testified that certain properties were allowed to install plants not on the list in Section 70 -150, but those landscape plans followed the proper permitting process and were approved through that process. 24. The Respondent was provided proper notice of the alleged violations and the notice of hearing in this case.. 25. At the time of the hearing, the alleged violations continued to exist. CONCLUSIONS OF LAW 1. Section 58- 138(b) of the Town's Code provides that It shall be unlawful for any person to remove, move or add soil or fill to or from any parcel of land located within the town without first having obtained a permit from the Town. The Town alleged that Respondent's removal of 561- 737 -0188 town of gulf stream 09:26:51 a.m. 04 -04 -2013 516 a portion of the driveway required obtaining a permit. Respondent argued that pursuant to Code Section 2 -68, Jurisdiction, the Special Magistrate does not have jurisdiction to hear a violation of Code Section 58- 138(b). Code Section 2 -68 provides the special magistrate with jurisdiction and authority to hear and decide any alleged violations of the chapters and ordinances listed therein. Neither Chapter 58, nor Section 58 -138, is listed as being within the special magistrate's jurisdiction. Accordingly, the special magistrate does not have jurisdiction to make a determination with respect to the alleged violation relating to Section 58- 138(b). 2. Section 70 -146 provides the Purpose of the General Landscape Standards and slates that the landscape architectural standards have been developed to reinforce the overall character and image of the town environment with the primary objectives to include reinforcing the community's identity. It goes on to state that the correct selection of plant material reinforces the identity of various districts. Section 70 -32 provides for the characteristics of Place Au Soleil District. The characteristics include `open front lawns ". The Town provided substantial competent evidence that it has consistently interpreted "open front lawns" to mean the home and front door being viewable from the street. The Town's interpretation is afforded deference in this instance. Las Olas Tower Co. v. City offort Lauderdale, 742 So. 2d 308, 312 (Fla. 4" DCA 1999). Accordingly, a violation of Sections 70 -146 and 70 -32 are found to exist. 3. Section 70 -150 provides for other plants used in the Town and lists "examples of materials presently found in the Town" far ground cover, tall shrubs, shrubs, vines, palms, and trees. The Town did not present competent substantial evidence that Section 70 -150 prohibits all other types of plants not listed. The Code clearly states that the list of plants is a list of examples of currently existing plants. Accordingly, a violation of Section 70 -150 is not found to exist. 4. While both parties presented testimony and evidence regarding whether a permit was required for the landscaping work, Respondent was not cited for violation of a code section relating to failure to obtain a permit. Accordingly, this order shall not be construed as a determination of whether the Respondent should have obtained administrative review, approval or a permit relating to the plantings cited in this case. town ar gu IT stream e9:21: 11 a.m. 04 -e4 -2019 h/a 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 of jurisdiction. 2. Respondent shall comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of the Town of Gulf Stream on or before the 20"h day of April, 2013, by removing the plantings in the driveway and other areas that block the view of the home and return it to the previously existing condition. 3. If Respondent does not comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of the Town of Gulf Stream on or before the 191h day of April, 2013, a fine of up to two- hundred- fifty- dollars ($250.00) per day may be assessed for each day the violation continues to exist. 4. A Fine Assessment Hearing will be held before the Special Magistrate on the 23rd day of April, 20131 at the Town of Gulf Stream, 100 Sea Road, Gulf Stream, Florida. 5. Respondent is not in violation of Section 70 -150 of the Code of Ordinances of the Town of Gulf Stream. A certified copy of this Order may be recorded in the Public Records of Palm Beach County, Florida, and, once recorded, shall constitute a lien against the property upon which the violation existed and upon any other real or personal property owned by the Respondent, pursuant to Chapter 162, Florida Statutes for the original amount. Upon complying, it is the responsibility of the Respondents to immediately notify the Gulf Stream Code Enforcement Clerk at (561) 276 -5116 to request a reinspection of the property. DONE AND ORDERED this 2 "d day of April, 2013. TOWN OF GULF STREAM CO�FORCEMENT BY: Special Magistrate 2 :55 oM Case 9:13 -cv- 81053 -KLR Document 3 Entered on FLSD Docket 10/17/2013 Page 8 of 8 �0- a14.Z113 Ail I w tam 'kJ 12' Sftnnlaa 0l a Civil M110c UNI fED STATES DISTRIC'C COURT cPsff IZV 4 for the Southern D1SIXICIL of Florida CHRIS O'HARE TluMt;tJjz) TOWN OF Out F STREAM el at 0"r,nd=rs) Ctvll AVIlalI Vu. 13- CV•91051 St MMONS IN A CIVIL ACTION' To elk(indanr < mane amladdnlr) MARTY MINOR Inhan Design Kilday Studios 477 S. Rosemary Avenue #225 West Palm Beach. Florida 33401 A lawsutl has Item filed agmns+ you Within :I days after service of this anitlmnns on you (not counting the day you received it) — or 00 days if you are the united States or a Untied Stares agency. or an ofticer or employee of The United States descrihed in Fed It C tv P 12 (W1 or (S) — you must serve on the plaintiff an answer to the artaehed complaint oz it motion under Rule 12 of the icdnrel Rules of Ctv 11 prncrdnre The answer or motion must be set"d on the piamuff of plaintiff s attomey whaw name and address are Robert Gershman, Esquire 2160 W Allanac Avenue ;ecotsrf Floor Delray Beach. Florida 33446 (let) 561.604 -8896 robertQtglawirm. us tf you full to respond, judirmcid by deauit will be enteted against you fox Rte relief demanded to the complaint Ynu alto must file your answer or mou(m will, the court . Steven M. Larimore OCT 1 1 2013 Dare _ — �- .Upnantn of0erk or Llepao Clerk Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 1 of 36 CHRIS O'HARE, Plaintiff, VS. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. TOWN OF GULF STREAM; TOWN OF GULF STREAM COMMISSION; TOWN MANAGER WILLIAM THRASHER, Town Manager, in his individual capacity and official capacity as the Town manager for the Town of Gulf Stream; TOWN SPECIAL MAGISTRATE LARA DONLON, Special Magistrate, in her individual capacity and official capacity as a Special Magistrate for the Town of Gulf Stream; OFFICER DAVID GINSBERG, Officer, in his individual capacity and official capacity as an Officer for the Town of Gulf Stream; SERGEANT ADAM GOREL, Sergeant, in his individual capacity and official capacity as an Sergeant for the Town of Gulf Stream; STEVEN TOBIAS, Building Official, in his individual capacity and official capacity as a Building Official for the City of Delray Beach; and MARTY MINOR, Planning Consultant, in his individual capacity and official capacity as a Planning Consultant for the Town of Gulf Stream. Defendants. COMPLAINT FOR LEGAL DAMAGES AND OTHER RELIEF COMES NOW, Plaintiff, CHRIS O'HARE by and through his undersigned counsel and hereby sues Defendants, the TOWN OF GULF STREAM, TOWN OF GULF STREAM COMMISSION, TOWN MANAGER WILLIAM THRASHER, TOWN SPECIAL MAGISTRATE LARA DONLON, OFFICER DAVID GINSBERG, SERGEANT ADAM GOREL, STEVEN TOBIAS and MARTY MINOR and alleges: Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 2 of 36 INTRODUCTION Plaintiff, Chris O'Hare, brings this action to recover monetary damages from the Defendants for violating Plaintiffs civil rights. Beginning in September of 2011, O'Hare's unfriendly encounter with Ginsberg set off a chain of events that led to the Town of Gulf Stream and some of its employees retaliating against O'Hare in numerous ways to punish O'Hare for his insolence in demanding equal treatment under the law. In doing so, the Town has (a) enforced unconstitutionally vague laws, and parts of the Town Code which give no notice that they carry the force of law, (b) prosecuted O'Hare without giving any notice as to what facts and law would be in question beforehand, and (c) required O'Hare to remedy supposed violations under the Town Code, utilizing unconstitutionally vague standards. Indeed, the Town and its named Defendants agents have acted upon their invidious animus and utilized vague and unnoticed standards to carry out their retribution. O'Hare has suffered dearly, both economically and emotionally. JURISDICTION AND VENUE 1. O'Hare brings this action under 18 U.S.C. 1983, Florida common law and F.S.S. 768.28. 2. This Court has jurisdiction under 28 U.S.C. 1331, which gives district courts original jurisdiction over civil actions arising under the Constitutional laws or treaties of the United States. 3. This Court has jurisdiction under 28 U.S.0 1443(2), which gives district courts jurisdiction over actions to secure civil rights extended by the United States government. 2 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 3 of 36 4. This Court has jurisdiction under 28 U.S.C. 1367, which gives the district court supplemental jurisdiction over state law claims. 5. Venue is appropriate in this judicial district under 28 U.S.C. 1391(b) because the events that gave rise to this complaint occurred in this district. PARTIES 6. Plaintiff, Christopher O'Hare ( "O'Hare ") is now and at all times pertinent was a resident of the Town of Gulf Stream, Palm Beach County, Florida which is located in the United States, Southern District of Florida. 7. Defendant, Town of Gulf Stream ( "Town ") is a Florida municipality duly formed and operating under the laws of the State of Florida and the United States of America. 8. Defendant, David Ginsberg ( "Ginsberg ") was a Zoning Enforcement Officer for the Town and an active member of the Town's municipal police force during all times relevant. 9. Defendant, Adam Gorel ( "Gorel ") was a Sergeant for the Town and an active member of the municipal police force during all times relevant. 10. Defendant, Town Manager William Thrasher ( "Thrasher "), was at all times pertinent, the Gulf Stream Town Administrator with authority over the actions of Ginsberg, Gore[, Minor and the Town. 11. Defendant Magistrate Lara Donlon ( "Donlon "), was at all times pertinent, (presenting herself or acting as) the Gulf Stream Town Special Magistrate who presided over Code Enforcement Hearings. 12. Defendant Marty Minor ( "Minor "), was at all times pertinent, the Town's Planning Consultant. r Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 4 of 36 13. Defendant, Town of Gulf Stream Commission ( "Commission ") is the Commission duly formed and operating under and for the Town, a Florida municipality operating under the laws of the State of Florida and the United States of America. 14. Defendant, Steven Tobias ( "Tobias ") is a Building Official for the City of Delray Beach, which is under an interlocal agreement to provide building inspection services. GENERAL ALLEGATIONS (a -e) (a) Officer Ginsbera's Illeeal Search and Seizure Under the Fourth and Fourteenth Amendments 15. Starting on or about August, 2011, O'Hare chose to perform improvements on his residence located at 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 - which is located in the Place Au Soleil subdivision. 16. The improvements involved both interior and exterior renovations to his residence including the replacement of the existing roof. 17. On or about September 15, 2011, Ginsberg arrived at O'Hare's home, ordering landscaping workers to cease and desist for lack of a vendor registration decal on the workers' commercial vehicle. When O'Hare asked Ginsberg if the workers could continue while someone went to Town Hall to obtain said decal, Ginsberg refused and stated that he felt compelled to "act tough" with these "beaners" or they would never comply with the Town's rules. 18. Upon hearing such blatant racist remarks from Ginsberg, O'Hare replied with moral disapproval, "This is just great, I got a racist and a Barney Fife protecting my family." 19. Ginsberg then became agitated and shook his finger at O'Hare, whereupon Ginsberg retorted that O'Hare should be grateful that when the new Wal -Mart opened (on the west side of Federal Highway and across from the entry to the Place Au Soleil 4 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 5 of 36 subdivision), that he, Ginsberg, would be keeping the trash out the neighborhood - referring ostensibly to the non -white people of color, ethnicity, or national origin who would supposedly be attracted to the new Wal -Mart store. 20. On or about October 28, 2011, Ginsberg, acting in his official capacity under the color of municipal law, entered the curtilage of O'Hare's property and inside O'Hare's house with neither consent nor warrant, all the while, dawning a police officer's pistol. 21. Prior to entering the curtilage of O'Hare's home, Ginsberg asked Vincent Gonzales ("Gonzales "), a lawn maintenance worker, who was immediately adjacent to the gate surrounding O'Hare's curtilage; Gonzales responded - "only workers." 22. Ginsberg then proceeded through a self- closing gate into the curtilage of O'Hare's residence, speaking to no person(s), past several Spanish speaking minority painters, working on the house. 23. There was no apparent cause and/or justification; Ginsberg's intentions were totally unknown at the time. 24. Having breached O'Hare's curtilage, but before entering O'Hare's house, again with neither consent nor a warrant, Ginsberg made contact with the only Caucasian construction worker, John Gundlach ( "Gundlach "). 25. When Gundlach became aware of Ginsberg's presence, and seeing that Ginsberg was bearing a firearm, Gundlach inquired about Ginsberg's identity and intentions. 26. Ginsberg said he wanted to enter the home. Gundlach refused Ginsberg's request and warned him that Gundlach did not have authority to allow Ginsberg's entry. 5 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 6 of 36 27. Ginsberg, saying nothing further and without presenting any official credentials whatsoever, proceeded to open O'Hare's rear porch door and walked into O'Hare's home over the continued verbal objections of Gundlach. 28. As he entered O'Hare's home, Ginsberg finally replied to Gundlach's objections by stating - "I am a police officer. I can go anywhere I want." 29. While standing in the middle of O'Hare's home, Ginsberg consulted with Thrasher via Ginsberg's cell phone. 30. After Ginsberg finished his call with Thrasher, Gundlach informed Ginsberg that he had spoken with O'Hare and that O'Hare wanted the officer to leave the home. 31. Ginsberg replied forcefully - "You're the one who has to leave!" and exclaimed - "I want you all to stop working and leave right now!" 32. Gundlach then informed all of the workers of Ginsberg's cease and desist order. 33. Immediately upon leaving, Ginsberg drove his town -owned vehicle around the comer to the property at 2516 Avenue Au Soleil, located adjacent to O'Hare's home at 2520 Avenue Au Soled, and owned by O'Hare. Once there, Ginsberg proceeded to walk past the same maintenance worker, Gonzales, through another self- closing gate, and entered the curtilage of O'Hare's property. Ginsberg then reached over a six foot high solid wood fence and photographed the curtilage and those portions of O'Hare's home located at 2520 Avenue Au Soleil, not visible to the public, including the interior of O'Hare's home as seen through the rear porch of O'Hare's private backyard. 34. Ginsberg departed O'Hare's home and returned a short time later, accompanied by Steve Tobias, a Building Official for the City of Delray Beach, which is under contract with the Town to provide building inspection services for the Town. Ginsberg and N Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 7 of 36 Tobias attempted to gain entry to the interior of O'Hare's home at the front entry door and the side garage door; but found both doors locked. Ginsberg then proceeded to take additional pictures of the rear of O'Hare's home and adjacent curtilage area by positioning his camera over the top of the six foot high fence which encloses the curtilage of O'Hare's home. 35. While Ginsberg stated in his subsequent police report regarding this incident that he was suspicious of "banging noises" at O'Hare's residence due to two recent burglaries of "unoccupied houses" in the Town, Town Attorney John Randolph subsequently revealed that Ginsberg said he really entered O'Hare's home unannounced to check the immigration status of the workers therein. 36. On or about March 5, 2012, Ginsberg repeatedly slammed on O'Hare's door. After Gundlach answered the door, Ginsberg proceeded to disparage O'Hare, ending his tirade by stating that the Town - "had Mr. O'Hare's number." 37. On or about March 5, 2012, Ginsberg stood in that part of the street that faces the front of O'Hare's home and proceeded to stare down O'Hare, who was standing in his front yard, in an outrageous and menacing fashion so as to cause O'Hare to be concerned for his safety. 38. On March 20, 2012, O'Hare pulled into his driveway at 2516 Avenue Au Soleil with a large trailer in order to unload some boxes, etc. into his garage. Due to the size of the trailer, O'Hare had to park across his driveway and partly on his lawn. Ginsberg pulled up behind O'Hare's trailer, parked his patrol car facing O'Hare, got out of his car and walked to the rear of the trailer, stopped and stared at O'Hare for a few minutes without speaking. Ginsberg inexplicably returned to his patrol car and moved it 7 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 8 of 36 forward facing away from O'Hare. Ginsberg again got out of his patrol car and approached O'Hare and inquired of Mr. O'Hare as to how long he planned to have the trailer parked there. O'Hare explained that he was just unloading a few items and would be leaving in few minutes. Ginsberg then left. 39. Later in 2012, O'Hare learned from other Town residents that the Town police systematically execute illegal searches by routinely entering the curtilage of residents' homes without consent, authority or cause. 40. On or about October 11, 2013, O'Hare learned that another resident of the Town, Martin O'Boyle, was contacted by Gorel, acting as a zoning officer, to let Mr. O'Boyle know that two painters were working at his house without a Town work permit. Mr. O'Boyle asked Gore] if he could get work permits at a later date and if Gore] could allow the workers to continue. Mr. O'Boyle then went on to ask Gorel if it would be "cool" to take this one up with Town Clerk Rita sometime next week. Gorel replied accommodatingly that they (`the police ") do whatever "Town Hall" says and chose to delay enforcement indefinitely until hearing from "Town Hall." (b) Metal Roof 41. Plaintiff re-alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 40. 42. On or about August 29, 2011, O'Hare submitted a "ROOF/RE -ROOF PERMIT APPLICATION" to the Town for a replacement roof of his single- family home, for which he was already in the course of improving. 43. The Re- Roofing Permit was issued on or about the day it was applied for with the sole condition that work commence within 180 days or else it would expire. 8 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 9 of 36 44. After the existing roof was removed, O'Hare became suspicious that the home's structure was not strong enough to support the appropriate replacement — a white colored concrete flat tile roof which was deemed appropriate in design and character for the Place Au Soleil district. 45. On or about October 26, 2011, O'Hare contacted his roofer to let him know he was concerned about the structural integrity of his roof and would be seeking to change the roof covering materials on his residence from concrete tile to metal - because a metal roof was patently lighter than concrete tile. 46. On or about November 3, 2011, John Mulleavey of Roof Tee, e- mailed O'Hare that, while attending a Roofing Association Meeting the previous evening, he discussed "with another long -time roofing contractor in our area" that O'Hare was considering a metal roof, and was told by the contractor- "that it doesn't matter what system we use, THE TOWN OF GULFSTREAM DOES NOT ALLOW METAL ROOFS OF ANY KIND." 47. On or about November 15, 2011, O'Hare's roofer submitted an application on O'Hare's behalf for a metal roof permit in the same white color as the previously approved roof. 48. Thrasher, acting in his capacity as Administrator, rejected O'Hare's request to change the roof materials to metal. Mulleavey informs O'Hare by e-mail that - "We submitted the permit revision today and was rejected by Bill Thrasher with a simple and stern "No Metal Roofs PERIOD." 49. However, Thrasher failed to inform O'Hare there was a metal roof exception clause under Section 70- 187(2) of the Town Code, the Gulf Stream Design Manual - which, J Case 9:13 -cv- 91053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 10 of 36 in fact, authorizes metal roofs on single- family residences under certain circumstances. Although Article V, section 70 -99(3) and Article VI, section 70- 187(2) generally state that all metal roofs are prohibited, Article VI, section 70- 187(2) includes an exception which reads, in pertinent part: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re- roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof. Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. 50. On or about December 13, 2011, O'Hare had a certified engineer, Terrence E. Lunn. PE, inspect the house's roof framing. 51. The next day, December 14, 2011, engineer Lunn informs O'Hare that his roof will not support the type of concrete tile required by the Town and issued O'Hare a certified letter as to same. 52. On or about March 6, 2012, after engineer Lunn certified that O'Hare's home could not support a concrete tile roof thereby entitling O'Hare to the benefit of a metal roof under Section 70- 187(2) of the Gulf Stream Design Manual, Thrasher, in a letter to O'Hare, refused to acknowledge the metal roof entitlement as a matter of policy, and informed O'Hare that metal roofs were prohibited and should he want a metal roof, O'Hare needs to apply for a variance. Thrasher also informed O'Hare that the variance process would require an inspection of the property by the Town's engineer in order to verify the conclusions reached by Lunn and the veracity of Lunn's certification letter. 53. On or about March 28, 2012, O'Hare, relying upon the provisions of Sec. 70- 187(2) of the Town Code, filed an appeal of Thrasher's March 6, 2012 decision in which he stated that a variance would be required for a metal roof. 10 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 11 of 36 54. On or about Match 30, 2012, the Town through Clerk Rita Taylor and Thrasher, requested that the Town Engineer be allowed to verify O'Hare's engineer's Letter of Certification. Since verification was not required to meet the exception of Section 70- 187(2), O'Hare refused. 55. On or about April 13, 2012, at a Hearing of the Town Commission sitting as the Board of Adjustment to consider O'Hare's appeal, Thrasher stated that he knew of conflicts regarding metal roofs in Article V and Article VI, but felt the more restrictive Article V was controlling. Thrasher took this position despite the fact that Article VI, section 70- 186(b) of the Town Code states that where portions of Article VI may conflict with portions of Article V, Article VI shall prevail - thus making the exception to a metal roof as outlined in Section 70- 187(2) the exception that supersedes the rule. 56. Town Clerk Rita Taylor stated that she had spoken to Diana, as secretary at Rooffec, the roofer who had worked on O'Hare residence, and Diana said that O'Hare `just wanted a metal roof." 57. Thrasher stated that O'Hare wanted a metal roof and further stated that O'Hare even asked the Town for a metal roof before conducting a structural analysis. 58. Town Attorney John Randolph said that if O'Hare could let the Town verify the basis for Engineer Lunn's certification, then O'Hare would be entitled to a metal roof and that a variance would not be required. 59. However, at the May 11, 2012 Board of Adjustment hearing, a continuation of the April 13, 2012 hearing, the Town Commission and Town Attorney John Randolph stated that despite what the Town Code said, the Town ought to be able to review engineer Lunn's certification for veracity. 11 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 12 of 36 60. Then Vice Mayor Joan Orthwein stated that a variance was required because of questions surrounding Engineer Lunn's report; and also stated that because the roof had held concrete tiles for the last 35 years, the Board had a right to question the integrity of the engineer's certification. 61. Commissioner Devitt, sitting on the Board, said that the metal roof would be a "done deal" if the town could verify the engineer's certification. 62. Commissioner Derng, sitting on the Board, said that the issue of whether O'Hare was entitled to a metal roof or required a variance would become "quite clear" upon allowing the Town's Engineer to inspect O'Hare's home and verify Engineer Lunn's certification. 63. Also during the May 11, 2012 Board of Adjustment hearing, Town Attorney Randolph conceded that O'Hare had done everything required of him to qualify for the exception allowing a metal roof under Town Code Section 70- 187(2), and further no variance was required for O'Hare's metal roof, but because O'Hare would not let the Town independently verify engineer Lunn's certification by an engineer of the Town's choosing, O'Hare would need to apply for a variance. 64. O'Hare was never given any notice that the April 13, 2012, Board of Adjustment Hearing would address the factual veracity of Engineer Lunn's certification and as such was not given a meaningful opportunity to prepare arguments of law and present factual evidence to address the Board's concern. Rather, O'Hare was only noticed that the Board would address whether Thrasher was wrong to require a variance in order for O'Hare to have a metal roof permit as a matter of law. 12 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 13 of 36 65. Many times during both the April 13, 2012 and May 11, 2012 Board of Adjustment Hearings, O'Hare's counsel, Mr. Roeder, asked the Board what part of the Town's Code specifically provides for a variance from the regulations of Chapter 70, including 70- 187(2), and further asked the Board where such a provision could be found. The Board did not respond to either inquiry. 66. After the Board of Adjustment hearing on May 30, 2012, the Town Commissioners issued a Final Action sustaining Thrasher's denial of a metal roof without first obtaining a variance. 67. On July 13, 2012, just two months after the final action by the Commission in the Appeal before the Board of Adjustment, the Commission changed Sec 70- 187(2) of the Code with the adoption of Ordinance 12/4, to mandate engineer's certifications be presented with studies/reports and a provision giving the Town the discretion to inspect the applicants home with their own engineer - precisely the conditions they placed upon O'Hare at the previous appeal hearings without any notice. 68. On or about June 18, 2012, O'Hare filed a petition for Certiorari before the 15ei Judicial Circuit Court of Florida challenging the Commission's final action on Thrasher's decision. The Town's response to this petition included their assertions that the use of the word "may" as it appears in the Town Code would mean "may or may not" and the choice of which meaning applied was at the sole discretion of the Town. 69. On June 28, 2012, O'Hare also filed for an emergency writ of mandamus seeking to compel the Town to issue a permit for a metal roof because the Florida hurricane season was imminent. 70. On September 4, 2012, the writ of mandamus was denied with no opinion. 13 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 14 of 36 71. On or about January 28, 2013, the 15`h Judicial Circuit ruled on O'Hare's petition for Certiorari by issuing a per curium denial. 72. On or about February 27, 2013, O'Hare sought appellate review of the 150' Judicial Circuit Court order before the Fourth District Court of Appeals. 73. On June 18, 2013, with no response from the Town, the appeal to the Fourth District Court of Appeals was denied on its merits - with no opinion. 74. Since October of 2011, the O'Hares have been prevented from installing a proper roof on their home and, as such, have been unable to obtain homeowners insurance. Because of the events described above, O'Hare, his wife, and his minor children have been forced to endure much consternation and severe emotional distress for which Mrs. O'Hare has sought and received medical assistance. (c) Illeeal Seizure of Plants And O'Hare 75. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 74. 76. On or about November 21, 2011, O'Hare was planting several small trees near the edge of his home's property, apparently within the public right of way, yet further from the edge of the road than similar and larger trees planted at several other homes within the Town's district, including the home of then current Commissioner Anderson at 960 Indigo Drive in the same Place Au Soleil subdivision. The portion of the public right -0f - -way where the trees were planted is the continuous landscaped zone located from the edge of the roadway pavement to the edge of his property line. The maintenance responsibility of this area has historically been that of the owner of the property immediately adjacent to the right -of -way. 14 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 15 of 36 77. Gore] observed O'Hare in the process of planting the trees and proceeded to converse telephonically with Thrasher in front of O'Hare. 78. Gorel thereafter ordered O'Hare to move the trees back from the edge of the road, but refused to inform O'Hare how far the plants needed to be moved back. 79. O'Hare then gets Gorel's consent to retrieve his copy of the Town Code and asks Gorel to show him where in the Code was the prohibition against O'Hare's type of plantings in the right of way. 80. Gorel declined to look in O'Hare's copy of the Town Code and retorted by telling O'Hare that - "police have their own book of rules." After again talking on his cell phone to Thrasher, Gorel informs O'Hare that Thrasher said the plants had to be removed "or else." 81. On or about November 22, 2011, Thrasher sends Ginsberg to O'Hare's residence to photograph said plants. 82. On or about November 23, 2011, Thrasher had a letter hand - delivered to O'Hare stating that O'Hare needed a "landscaping permit prior to commencing any landscaping on [his] property." 83. Thrasher also informs O'Hare that the police use the same code book that O'Hare had presented to Gorel two days before. 84. On or about March I, 2012, Lou Roeder, attorney for 01-lare, requests the Town for a cite of that portion of the code that requires a permit for "any" landscaping. 85. On or about March 6, 2012, Thrasher replied to Mr. Roeder's question and stated, in effect, "any" landscaping is what the Town Administrator, says it is. is Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 16 of 36 86. In the same reply, Thrasher also stated that he was directed by the Town Commission in 2004, to prohibit planting in the right of way as a matter of policy, but could not provide a reference to any Town law. (d) Fraudulent Code Violations 87. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 86. 88. On or about October 1, 2012, Thrasher sends a town employee to photograph O'Hare's landscaping at 2520 Avenue An Soleil. 89. On or about October 5, 2012, Thrasher initiates a -mails back and forth with Board Members of the Place Au Soleil Homeowners Association, soliciting a negative reaction to O'Hare's recent plantings. Thrasher tells the HOA Board members that "if [they] are happy with [O'Hare's planting] in [their] community, then he is not going to force the issue with the O'Hares "; however, "if [they] are not happy, [they] are to advise him and he will take the appropriate action." 90. On or about October 16, 2012, Minor responds to Thrasher's request to review the landscaping at O'Hare's home. In a subsequent memorandum, Minor reports to Thrasher that O'Hare is in violation of Town Code Sec. 70 -32, 70 -146, and 70 -150. 91. On or about November 5, 2012, O'Hare receives a code violation letter stating that he is in violation of Town Code: (a) 58 -138 for moving fill on his property without a permit, (b) 70 -150 which outlines the types of plants found in the town; (c) 70 -32 which summarizes the common characteristics of the Place Au Soleil district, including, as undefined, "open front lawns "; and (d) 70 -146 which outlines several purposes of the landscape standards. 16 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 17 of 36 92. On or about January 28, 2013, O'Hare sends Thrasher a letter requesting clarification of the November 5, 2012 charges because O'Hare did not understand in what way he had violated the quoted sections of the Gulf Stream Design Manual. More specifically, O'Hare took issue with Thrasher's interpretation of those parts of the code which carry the force of law and those parts of the code that merely reference the history and past characteristics of the Town, and those parts that resemble an architectural reference manual intended to be used for the purpose of reviewing development proposals. 93. On or about February 26, 2013, Thrasher responds to O' Hare's January 28, 2013 letter not by answering his request for clarification, but by informing O'Hare of a formal Code Enforcement hearing date which had been set before Dolon. 94. O'Hare requested a copy of the Town's Staff Report prior to the Code Enforcement hearing but received no response. 95. On or about February 26, 2013, the Town informed O'Hare of a Code Enforcement hearing scheduled for March 21, 2013. 96. When Thrasher is asked during the hearing on cross examination to define what constitutes an "open front lawn," he replies, "I don't think that, specifically, it's defined. The fact that you can or cannot see the front of the home would be an indicator ..." Thrasher continued, "At this time, I do not know if there is a definition in our code of open front yards. It is a general term that I have referred to and referenced whether or not you could see the front door, see the front of the house." 97. On or about April 2, 2013, Donlon, finds that (a) 58 -128 does not apply, (b) no violation for 70 -150 or 70 -146, but does find (c) O'Hare in violation of the "open front 17 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 18 of 36 lawns" provision under 70 -32(a) entitled "Summary of district [Place Au Soleill characteristics." 98. Donlon then orders O'Hare to remove the plants in his driveway "that block the view of the home and return it to the previously existing condition." Not defining what IT is, or to what extent any plants need to be removed to open the view to the driveway, and without reference to any pre - existing date or configuration to which the landscaping would need to be reverted. 99. On or about April 19, 2013, Thrasher met O'Hare and O'Hare's employee, Rodrigo Tejera, at O'Hare's home to inspect landscaping and determine whether the property complied with Donlon's order. 100. While Thrasher acknowledged that O'Hare now met the definition of an "open front lawn" as ordered by Donlon, he insisted that O'Hare was still not in compliance because he did not return his home to its pre - existing condition. 101. Thrasher then showed O'Hare a never before -seen photo — evidently copied from Google Earth Street View, with a time stamp of May 2011, and demanded that O'Hare restore his landscaping to conform to that photo. 102. The photo was not offered into evidence during the March 21, 2012 Code Enforcement Hearing before Donlon, and was neither referenced nor presented to O'Hare prior to the April 19, 2013 meeting with Thrasher. 103. On the same day, O'Hare filed a Motion for Reconsideration before Donlon, because the findings of facts and conclusions of law were not supported by the evidence presented at the hearing by Thrasher. 18 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 19 of 36 104. On or about May 13, 2013, O'Hare searched the Town's public records and discovered that (1) the sworn testimony of Thrasher wherein he states (a) the town has consistently used an "open front lawns test" when enforcing landscaping provisions of the code; and (b) that all noncomplying similarly situated properties were lawfully "grandfathered in" and (2) hired witness Minor's testimony that O'Hare was planting prohibited species were all directly contradicted by photographic and other evidence located in the Town's own records. These records contradicted T'hrasher's unwavering definition of "open front lawns" from his own testimony at the hearing. 105. O'Hare filed a Motion for Sanctions for Fraud Upon the Court after discovering that critical evidence presented by the Town at the March 21, 2013 Code Enforcement Hearing before Donlon was intentionally false. 106. On or about May 14, 2013, O'Hare attended the Fine Assessment Hearing before Donlon, wherein Donlon refused to consider O'Hare's Motion for Reconsideration and his Motion for Sanctions in the presence of Town Attorney John Randolph. 107. Donlon also found that O'Hare had not complied with her order to remove plants from the driveway, despite the fact that removing plants from the driveway in their entirety was not specifically mandated by Donlon's April 2, 2013, Order. 108. Donlon fined O'Hare $100 dollars a day instead of $200 a day because O'Hare took remedial action and attempted to comply with Donlon's Order. Before issuing the order, Donlon appeared to recognize that the Order was vague, but nevertheless ruled for the Town to ensure that her law firm would continue serving as the Special Magistrate at the pleasure of the Town. 19 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 20 of 36 109. The same day, O'Hare removes vegetation to conform to Thrasher's photograph - at an estimated cost of $5,400. 110. On all relevant dates in this section, Donlon was not a duly appointed Special Magistrate pursuant to Town Code Sec. 2- 67(a) —(c) and, as such, without jurisdiction. (e) Garage Permit - Unilateral Style Chanee 111. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 110. 112. On or about September 15, 2012, O'Hare submitted a permit application to Thrasher for a hurricane -rated garage door on his residence at 2520 Avenue Au Soleil. 113. On or about September 18, 2012, Thrasher denies the garage door permit saying that it did not conform to the "Bermuda" Style as defined in the Town Design Manual. 114. Thrasher made this determination despite the fact that the Town Manual, a part of the Town Code, classifies O'Hare's home style as "OtherNarious ", not "Bermuda ". Thrasher instructed Minor to find any reason to justify changing this property's zoning description as it is codified in the Town's Code therefore to provide Thrasher with a supported rational basis for this change and then, for the purpose of enforcing a design standard, not clearly defined in the Town's Code, did change the official description of this property without the benefit of a public hearing as required by the Town Code. 115. Because Thrasher unilaterally redefined O'Hare's home style as "Bermuda" instead of "OtherNarious," O'Hare is not now entitled to improve his home in ways allowed under "OtherNarious" Style but must adhere to contrary standards reserved exclusively for "Bermuda" Style. ce Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 21 of 36 COUNT Illegal Search and Seizure Under the Fourth and Fourteenth Amendment 116. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 115. 117. Ginsberg entered the curtilage and home of the O'Hare family on October 28, 2011, without a warrant or exigent circumstances as either a code enforcement officer, police officer, or both, in violation of the Fourteenth Amendment Search provision. 118. The Town Code Sec. 2 -26 specifically cross references Florida State procedures for obtaining inspection warrants before entering residential property. 119. Ginsberg seized O'Hare's workers without a warrant and in the course of executing an illegal search, thereby causing harm to O'Hare's right to privacy, emotional wellbeing, the loss of contractual services, and diminution in value of building materials. 120. Ginsberg entered the curtilage of the O'Hare home on October 28, 2011, without a warrant, authority or exigent circumstances as either a code enforcement officer or law enforcement officer, or both, in clear violation of the Fourteenth Amendment Search provision. 121. Ginsberg attempted to enter O'Hare's home a second time on October 28, 2011, accompanied by Tobias, without a warrant, authority or exigent circumstances as either a code enforcement officer or law enforcement officer, or both, in clear violation of the Fourteenth Amendment Search provision. 122. Additionally, the information gained from Ginsberg's illegal search was used as the basis for a Notice of Violation issued by Thrasher on October 29, 2011, and subsequently and prejudicially influenced the Town Commission when they 21 1 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 22 of 36 subsequently denied O'Hare's exemption for a metal roof without any apparent cause on May 30, 2012. COUNT II First Amendment Retaliation 123. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 122. 124. Ginsberg retaliated against O'Hare because of O'Hare's association with non - whites. 125. In the alternative, Ginsberg retaliated against O'Hare because of O'Hare's critical statements and expressed moral outrage at Ginsberg's disposition towards race and displays of overt racism. 126. As a result of Ginsberg retaliation, Ginsberg caused harm to O'Hare's right to privacy, emotional well - being, the loss of contractual services, and diminution of value of building materials as well as the harms stated above. COUNT III Impairment of Contract Based on Race 127. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 126. 128. Ginsberg impaired O'Hares contracts during the unlawful search on October 28, 2011 in violation of 42 U.S.C. 1981 when he ordered O'Hare's contractors/workers to cease performing their obligations based upon Ginsberg's previously- stated beliefs as to their non -white status as "beaners," thereby furthering his promise to rid the neighborhood of "trash." 129. This impairment of contract under color of law caused O'Hare to suffer loss of contract services, and diminution of value of building materials and labor. 22 , Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 23 of 36 COUNT IV Denial of Equal Protection Under the Fourteenth Amendment 130. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 129. 131. Ginsberg performed an illegal search, seizure, and otherwise acted harassingly, intruding upon O'Hare's seclusion, based upon an irrational basis that was motivated by invidious purposes - O'Hare's association with non - whites and Ginsberg's personal spite toward O'Hare. 132. In acting without a rational basis, Ginsberg caused all of the aforementioned harms in Count I through Count IV above. COUNT V Denial of Equal Protection /Substantive Due Process Under the Fourteenth Amendment — Supervisor Liability 133. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 132. 134. Thrasher, the direct supervisor of Ginsberg, whom he was in constant and detailed communication concerning all code enforcement issues as well as contemporaneous telephonic contact during the search, ratified, encouraged, or otherwise acted favorably towards Ginsberg's October 28, 2011, illegal search, seizure, and other prior and subsequent acts, with deliberate indifference to O'Hare's constitutional rights which violates the civil rights as described in Counts I through IV above. COUNT VI Denial of Equal Protection /Substantive Due Process Under the Fourteenth Amendment — Municipal Liability 135. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 134. 23 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 24 of 36 136. Thrasher, the chief executive policy enforcer of the Town and the direct supervisor of Ginsberg, in his code enforcement duties, with whom he was in constant and detailed communication concerning all code enforcement issues, ratified, encouraged, or otherwise acted favorably towards Ginsberg's October 28, 2011 illegal search, seizure, and other acts with reckless disregard to O'Hare's civil rights as described in Counts I through V, above. 137. The Town policy of allowing police /code enforcement officers to execute illegal searches without a warrant, as implemented through Thrasher, caused the harms in Count 1 through VI above. 138. Town adjudicated against O'Hare using a quasi-judicial process presided over by an unauthorized Special Magistrate who acted without proper authority. COUNT VII Trespass 139. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above Paragraphs 1 through 138. 140. On or about October 28, 2011, Ginsberg unlawfully and intentionally entered O'Hare's home wherein he ordered O'Hare's contractors /workers to cease work. 141. The same day, Ginsberg intentionally and unlawfully entered O'Hare's property wherein he photographed the curtilage of the O'Hare home. 142. The same day, Ginsberg returned to O'Hare's property with Tobias and intentionally, unlawfully and successfully attempted to enter O'Hare's home for a second time, and to photograph the curtilage of the O'Hare home from over a six foot high privacy fence. 24 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 25 of 36 143. These actions caused O'Hare the aforementioned harm in Count I through Count VII above. COUNT VIH Tortuous Interference with Contract 144. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 143. 145. On or about October 28, 2011, Ginsberg, in the course of illegally trespassing in O'Hare's home, intentionally and illegally caused O'Hare's contractors to cease work, thereby denying them the ability to fulfill their contractual duties, and causing O'Hare to undergo delays in construction, money to pay for services not rendered and all other harms noted in Counts 1 through Vlll above. COUNT IX Intrusion Upon Seclusion 146. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 145. 147. Ginsberg's trespass upon O'Hare's home on October 28, 2011, whereupon he photographed the curtilage, backyard, and interior of O'Hare home, and Ginsberg's return visit to again photograph O'Hare's curtilage and backyard, constituted a highly offensive intrusion upon the solitude or seclusion of O'Hare's private residential spaces thereby causing O'Hare emotional distress, insecurity, concern for the safety of his family, and loss of privacy interest in the non - public portions of his home. 25 1 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 26 of 36 Count X Denial of Equal Protection 148. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs I through 147. 149. Thrasher denied O'Hare equal protection by denying O'Hare a vested property interest to a metal roof with no rational basis and/or based on invidious contempt, spite, personal taste, or other illegitimate government interest with willful disregard to the Town's Code. 150. As a result of the aforementioned conduct, O'Hare has been forced to endure two hurricane seasons without a properly weatherproofed roof, was unable to acquire homeowner insurance because he lacked a completed roof, and was forced to mend and repair leaks caused by storm events otherwise preventable by a proper roof. O'Hare was also caused to endure costly appeals and suffered emotional distress stemming directly from Thrasher's harassing treatment and indirectly from the anxiety, pain, and suffering of his family stemming from the adverse living conditions caused directly by Thrasher. 151. Thrasher caused all of the harms noted in Count I thru X above. COUNT XI First Amendment Retaliation 152. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 151. 153. In the alternative, Thrasher denied O'Hare's metal roof permit because O'Hare had exhibited dissidence towards one of the Town's employees, Ginsberg, when O'Hare called Ginsberg a "racist" and a "Barney Fife" in September, 2011. 26 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 27 of 36 154. Town Manager Thrasher caused all of the harms noted in Count XI. COUNT XII Illegal Seizer under the Fourth and Fourteenth Amendments 155. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 154. 156. On or about November 22, 2011, Gorel illegally seized O'Hare and his trees when he ordered O'Hare to move the trees planted in the Right of Way of O'Hare's property. 157. O'Hare was seized without probable cause of a violation of law and /or with the intentions to retaliate against O'Hare for his dissidence stemming from speech and/or invidious spite. The seizure of O'Hare was otherwise unreasonable in scope and duration when Gorel ordered Chris to personally remove the plants. 158. O'Hare suffered emotional distress, a deprivation of dignity, and was forced to personally undertake an extremely laborious task. COUNT XIII Conversion of Chattels or Trespass to Chattels 159. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs I through 158. 160. On or about November 21, 2011, Gorel intentionally and illegally exhibited domain over O'Hare's plants when he ordered O'Hare to move the plants on his property causing O'Hare time and labor to comply with Gorel's order and depriving O'Hare of his property interest in exclusive control of his chattels, and causing O'Hare emotional distress from Gorel's assault on O'Hare's dignity and all harms noted in Count XII. 27 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 Page 28 of 36 COUNT XIV Illegal Seizer under the Fourth and Fourteenth Amendments — Supervisory & Municipal Liability 161. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 160. 162. Thrasher, the chief executive policymaker for the Town, had supervisory and municipal liability for Gorel's November 22, 2011 seizure of O'Hare and O'Hare's property because Thrasher was aware of Gorel's actions, they were in constant telephone contact, and Thrasher ratified Gorel's actions, affirmatively and by silence. 163. The Town's unwritten policy of planting in the right of way, through the Town Commission's 2004 discussion, caused Gorel to illegally search and seize O'Hare and his property without probable cause or reasonable suspicion of a violation of law. 164. O'Hare's harms are identical to those noted in Count XII. COUNT XV Denial of Equal Protection under the Fourteenth Amendment 165. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs l through 164. 166. Gore], the Town, and Thrasher denied O'Hare equal protection when Gore], under supervision of Thrasher, forced O'Hare to remove and transplant several trees, on November 21, 2011, under the Town custom of not allowing plants in the public right of way adjacent to O'Hare's property while allowing then Commissioner Anderson and other property owners to engage in the same behavior without action and, therefore, without a rational basis. 167. O'Hare suffered the same harms noted in Count X11. 28 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 29 of 36 COUNT XVI Denial of Due Process under the Fourteenth Amendment 168. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs Ithrough 167. 169. On or about May 30, 2012, the Town denied O'Hare's appeal of Thrasher's decision denying O'Hare's property interest in a metal roof because the Commission, sitting as the Board of Adjustment, was suspicious of the veracity of Engineer Lunn's certification. The Town denied O'Hare's permit for a metal roof, a property interest he was lawfully entitled to under the Town Code because of concern of fraud, without giving O'Hare a hearing to present evidence to allay any factual concerns that the Board may have had with Engineer Lunn's certification. 170. In the alternative, the Board pre - textually denied O'Hare's appeal with spite, insidious, or retaliatory motive in violation of equal protection. 171. The Town also did not meaningfully notice O'Hare that his Board of Adjustment Appeals would concern the legal or factual issues surrounding the impact of an engineer's report under the Town Code. 172. The aforementioned Board actions causing O'Hare to live without a completed roof, hurricane insurance and to undergo costly appeals and suffer emotional distress, anxiety from the numerous severe storms (including hurricanes and tropical storms) that frequent South Florida, and a basic enjoyment of life. 29 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 30 of 36 COUNT XVII Failure to Hire, Train & Supervise 173. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 172. 174. The Town, to this date, still has no procedural guidelines for Code Enforcement officers despite, during the most recent final budget hearing on September 17, 2013, Commissioner Ganger's request for the town to adopt code enforcement training or hire an outside agency for training. To date, the commission failed to investigate code enforcement employee training. 175. The Town, acting with gross negligence, reckless disregard, and/or deliberate indifference to O'Hare's constitutional rights to property, liberty, speech, and equal protection under the Fourteenth Amendment of the Constitution, hired Thrasher, Ginsberg, Gorel, and Minor and failed to train same, or failed to supervise same, or failed to provide a standard code of conduct or procedural guide for same, and as a direct result Thrasher, Ginsberg, Gore] and Minor violated O'Hare's constitutional rights causing any and all harms in the aforementioned counts. 176. Thrasher, the chief executive policymaker for the Town, acting with deliberate indifference to constitutional rights, recklessly, trained, supervised, and /or hired Ginsberg and Gorel as the code enforcement officers, and Minor as the Town Planning Consultant, without the benefit of code enforcement guidelines. As a direct result, O'Hare has suffered deprivations of constitutional rights and all of the aforementioned harms in any and all of the aforementioned counts. 30 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 31 of 36 COUNT XVHI Florida Negligent Hiring, Supervising, Training of Ginsberg, Corel, Minor and Thrasher 177. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 176. 178. Under Florida Statute 768.28, the Town, as an employer, negligently hired, trained, or supervised Thrasher in code enforcement actions, including his failure to designate O'Hare's home as an "OtherNarious" style despite being so designated such under town Code 70 -215, which caused O'Hare to be refused for his hurricane -rated garage door permit causing embarrassment, frustration, and emotional distress and potential damage from a future storm. 179. The Town's failure to train Thrasher caused him to negligently interpret the law and for O'Hare to be denied a metal roof, despite O'Hare's clear and unambiguous entitlement for that vested property interest, after the submission of an engineers certification, under the Town Code, causing O'Hare to live without a completed weather -proof roof, to live with a leaking roof, to live without the ability to get hurricane insurance for over a year, as well as embarrassment, frustration, and emotional distress. 180. Thrasher negligently interpreted Town Code 70 -32 "open front lawns" provision to carry the force of law, failed to recognize the term as unconstitutionally vague before enforcement, failed to determine a definitive and published interpretation, and therefore lacked probable cause before enforcement. This caused O'Hare to undergo a hearing before Donlon, costing O'Hare legal fees, emotional distress, and frustration. 31 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 32 of 36 181. Under the same statute, Thrasher negligently trained or supervised Ginsberg in conducting code enforcement actions, and Minor as the Town Planning Consultant, which caused O'Hare emotional distress, harms to privacy, harms to dignity, embarrassment, and frustration. 182. Thrasher negligently trained or supervised Gorel and Minor when Thrasher consulted with Gorel and Minor about plantings in the right of way after Gorel's seizure of O'Hare, and consulted with Minor about Town Planning issues against O'Hare, causing O'Hare emotional distress, embarrassment, frustration, and the pains of labor. 183. The Town was negligent in failing to exercise reasonable care to consider the plane language of their own code when it caused O'Hare to undergo a code enforcement hearing without a neutral decision maker after failing to appoint Donlon per the requirements of the Town Code, causing O'Hare legal fees, emotional distress, frustration, and the lost profits stemming from the inability to attend to his business. COUNT XIX Denial of Due Process 184. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 183. 185. Donlon denied O'Hare Due Process when she issued a vague order on April 2, 2013, demanding O'Hare open up his front lawn and to return it to its "preexisting condition" without specifying a particular date. Although O'Hare attempted to comply with the vague order, he was forced to remove a good portion of his plants at a cost of thousands of dollars or face $100 a day fine. 32 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 33 of 36 186. The Town of Gulf Stream denied O'Hare Due Process when they prosecuted him in a code enforcement hearing without a neutral magistrate due to the fact that Donlon was unlawfully appointed and not a legally recognized Magistrate, thereby acting in clear absence of any jurisdiction. 187. The Town denied O'Hare Due Process when it enforced a false Order issued by Dolan who was unlawfully appointed and not a legal Magistrate, thereby acting in clear absence of any jurisdiction and thus creating false documents under the color of authority, thereby forcing O'Hare to take remedial action on his property or be fined. 188. The Town denied O'Hare Due Process when his property, both real and monetary, was placed in jeopardy under the "open front lawns" portion of the code without notice that the "open front lawns" portion carried the force of law and because the Town enforced an unconstitutionally vague law. 189. The Town denied O'Hare Due Process when his property, both real and monetary, was placed in jeopardy by Donlon, based solely upon Thrasher's falsified evidence concerning the consistent enforcement of open front lawns and the "grandfathering" of other properties presented at the Code Enforcement Hearing because Thrasher and prosecutor John Randolph knew this evidence was false prior to the hearing or knew subsequent to the hearing, and failed to correct it, which caused Donlon to enter judgment against O'Hare and for O'Hare to spend over $5,000 to bring his front lawn into conformance with that order, as well as emotional distress, time, and the pains of labor. 33 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 34 of 36 COUNT XX Intentional Infliction of Emotional Distress 190. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 189. 191. Thrasher and Minor intentionally misrepresented and misapplied code section 70 -150 to incorrectly read that some plants were prohibited when the code correctly simply reads that these same plants are "typically found." 192. On or about March 5, 2012, Ginsberg intentionally used his position as a police officer to intimidate O'Hare by staring him down and banging on his front door, harassing him while O'Hare unloaded a trailer in his driveway, causing O'Hare emotional distress and to fear for his safety. COUNT XXI Slander 193. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs Ithrough 192. 194. On or about March 5, 2012, Ginsberg maliciously told Gundlach to be careful and not to do what O'Hare said, and that the "Town had O'Hare's number" — each false and defamatory statements — causing O'Hare to lose the confidence of his workers, negatively affecting his contractual relationship with them. 34 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 35 of 36 COUNT XXII Malicious Prosecution /Abuse of Process 195. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 194. 196. The Town, Minor, and Thrasher, the chief executive policy enforcer for the Town, in furtherance of retaliation or based upon animus, investigated, instigated, and otherwise participated in the prosecution of O'Hare on or about November 5, 2012, under the misuse of the Town Code Sec. 58- 138(b), 70 -150, and 70 -146 without probable cause which were later dismissed by the April 2, 2013, order of Donlon, causing O'Hare to accrue legal fees and suffer emotional distress. Demand For Tury Trial Plaintiff demands a trial by jury on all issued so triable. WHEREFORE, Plaintiff demands judgment against Defendants in an amount within the jurisdictional limits of the court, to wit in excess of Fifteen Thousand Dollars ($15,000), plus attorneys' fees, costs, roof repairs, punitive damages wherever applicable, and any other reasonable determinations this honorable court deems just and proper. Plaintiff also demands any equitable remedies against Defendants, including Building Official for the City of Delray Beach, which is under an interlocal agreement with the Town of Gulf Stream to provide building inspection services for the Town but not limited to, rehearings wherever applicable, the imposition of procedural safeguards wherever 35 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 36 of 36 applicable for same, the imposition of federal oversight under the Fourteenth Amendment wherever applicable, and any other reasonable equitable or remedial actions this honorable court deems just and proper. 1 HEREBY CERTIFY that a true & correct copy was furnished, via electronic filing, on October 16, 2013. 36 ROBERTS. GERSHMAN, ESQUIRE 2160 W. Atlantic Avenue, 2d FL Delray Beach, FL 33445 (561) 684 -8898 (telephone) robert @rglawfirm.us s// Robert Gershman ROBERT S. GERS14MAN Florida Bar No. 917397 I JS 44 (R.y 12 12) CIVIL COVER SHEET The IS 44 civil ca sheet and the mforra n wtat:wwd hensa neither rtrryylace, nor sup lemenl de IlluhgiMl SeM1'Iee of pleadings or other papa ¢5 R9WIcd Ill, Ia\\', actin as prsvided hl local rules of court. Taus famh, apgnyrd by the Judicial CON'aatm of the United Slates to sr,Plonbsr 1974 is tegwsed for Use luc of the Clerk of Cow for die plupnse ul'wualing lha: dull Juckcl dhcd ISE£ L1' S1RLi 'nO.v50. \:\E17PAGEOFINISFURlf1 1. (a) PLAINTIFFS Chris O'Hare (b) Cmmfy of Re idenceofFag LelrJPlutntll' Palm Beach /EITTPr(.1' P.8 P1-41.V'nr('A9E'a JAtldOevdfFVm.l'am...4Ske+a. urJTrlryl.w A'umh,1 R an Gerahman, Esquire 2160 W Allanlic Avenue, 2d Floor Delray Beach, Florida 33445 11. BASIS OFJLIRISDICFIONrPn er,er-.rl.orofi.wrl -1 1 1'S, Cnwaormt 213 Federal Qee,u. Moron It Gsvmasm.lbea P.aOI 7 2 I'S uio. oil 7 4 Dlyaam Iklmdml 11". CneaoErp W Pa9sa m In.. fall 1V. NATURE OF SUIT /Ptio,. %v, m(Jne Enr on/3'J DEFENDANTS Town Of Gulf Stream, Town Of Gulf Stream Commission, Town Manager William Thrasher, Special Magistrate Lem Donlon, Officer David Ginsberg, Sergeant Adam Gorel, Steven Tobias & Marty Minor Comwol'Ruidm.ol'Ftrsl LiaeJI3,:1'sJAnt Palm Beach frc L's. PJ.4xcnrcu�o, \zn NOTE 1%LWD CUVOFENADONC\SM L'SE THE LOCATION OF THE TR IR OF LANO INVOLVED, ARluneys 111Amon1 . CI I ILEINSH I UP 1'HINUlPAL PAH77E50'ht m or thw B<aJu.Pfmrog (F.Ooarut, rmo(AlSl . wd(ine Rmf rLly:rtmu PFF I1F,F PFF OFF Chaco ldTlofsau 0 1 7 1 he9liasnflw Pars" al R.cc 7 4 1 4 0 120 MuMe 7 130 Md1er Aat 0 310 Airtains O 363 Personal Won, - :13 IS tirylanc Ih W.i Mducl Whilin of Boslncss In' no, SUl: CIom N7mds.Snk 1 2 7 2 Indrr+ravJ un3RMciIVI lSam 7 3 75 laauloI) 13671u1m L¢. -1 3M,%a eUWA, InumaauW of IiosMUC In andla5 We Cics a SLIJat ola 7 3 0 3 R.citn]atnal 1 fi l b r rs. C,am1rc 0120CU(pn8lns 7830 Past O3 WTmdswk V. WKIWIN IYASnm ".1 " "mrMB.Onf31 )II 1 Otigiml 72 Removed from !'1 3 Remanded from 7 4 Reitnutedin 7 5 Transferred from 7 fi Muludisuel Prccerdulg SUM Court Appellate Count ferreted Another District I.tupturs 0 cal Rae the U.5 Civil gMlute coder Wtich vw ary lilin¢!as M eYr ®iakdand camp apron dhvxkrr VI. CAUSE OF ACTION ( Deprivation of Constitutional Rights Under the 14th Amendment VII. REQUESTED IN 0 CIIECS IF TIRS IS A CLASS ACTION DEMANDS CHEC7C YES only if demanded in complaint COMPLAINT: IJN0rk RULE 23,F.R.CV P. 2,400,000.00 JURY DEMAND: X Yes O No VIII. RELATED CASE(S) IF ANY IS sa'.losib JLWE Donald Middlebrooks n Dxa'RFr NTrnmFR 13- 60432- CV- Midd6brooks 10/16/2013 RECFSITa AUOLNT AI'Pt YNGIFP ' RIDGE MAG RTRSE . 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PlaMtid u Dd'eraunO 7871 IRS -71.J Pon' M USC %09 0 290.01 (Meer Rcal Ruparc OHS suits, 5uabilinu• 0 335 ricu h Padry N Fmphnmml 7446 Ana wlSaaM06e,- Olhm, 0340 \undamusSWla 7441Nantralilatia¢ ApNkau. 74650halmmipeum Od. 3 S CIA Riplda Ammer 7401 Education ❑ 553 Priam C.GU. 0 50 Cilia Must. C.Jiti.c of C,rltinalml V. WKIWIN IYASnm ".1 " "mrMB.Onf31 )II 1 Otigiml 72 Removed from !'1 3 Remanded from 7 4 Reitnutedin 7 5 Transferred from 7 fi Muludisuel Prccerdulg SUM Court Appellate Count ferreted Another District I.tupturs 0 cal Rae the U.5 Civil gMlute coder Wtich vw ary lilin¢!as M eYr ®iakdand camp apron dhvxkrr VI. CAUSE OF ACTION ( Deprivation of Constitutional Rights Under the 14th Amendment VII. REQUESTED IN 0 CIIECS IF TIRS IS A CLASS ACTION DEMANDS CHEC7C YES only if demanded in complaint COMPLAINT: IJN0rk RULE 23,F.R.CV P. 2,400,000.00 JURY DEMAND: X Yes O No VIII. RELATED CASE(S) IF ANY IS sa'.losib JLWE Donald Middlebrooks n Dxa'RFr NTrnmFR 13- 60432- CV- Midd6brooks 10/16/2013 RECFSITa AUOLNT AI'Pt YNGIFP ' RIDGE MAG RTRSE Case 9:13 -tv- 81053 -KLR Document 3 Entered on FLSD Docket 10/17/2013 Page 1 of B �S S fM AUAAnian rr /iii A01. UNITED STATES DISTRICT COURT for the C Southern District of Fluridu CHRIS O'HAHB plwnWlhl V. TOWN OF GULF STREAM et rd '__ _ IAJenJ,mlfs! Civil Action No 13-CV -81053 SUNIMOYS IN A CIVIL ACTION To rl4fondanr'.namrandnJJnn) TOWN OF GULF STREAM c/o Joan Orthaein Gulf StreamTown Hall 100 Sea Road Gull Stream, Florida 33483 A lawewl has been filed against you no Wither 21 days after service of this summons on you (not counting the day you rei:eivud it) - or 60 days if you are the t nited States or a United States spancy, or an ofrcer or employee of the United States described in Fed R Civ P 12 (a)(2) or (3) -- you must serve on the platnttlf an answer to the attached complaint or a motion undo Rule 12 of the Federal Rules of Civil Procedure The answcr or motion must be served on the plaintiff or platntitrs auomev, . hose name and address are Robert Genhmn, Esquire 2180 W. Atlantic Avenue Second Floor Delray Beach, Florida 33445 (td) 561.884-8898 r Zartopgtawfem. us If ymt fail to respond, judgment by default will be entered against you for the relief demanded in the complaint You alw mien File your answer or motion with the court Steven M. Ladmore f LLRKUrC[JURT Dee. OCT 17 2013 / -- ,V Y/annrvm a /C7n1 or lkyne, Clrr! A I 0 1544 (Rev.0921 CIVIL COVER SHEET TI1c JS 44 civil cover shect and the inGun ati(m ctmlained herein rcidxr 1xpI= nor agpwwvd Abe tilow MW ai O'ice of Pleadutgs Of uthe paFets 0 mahed In Law, cace(x a pm%filed Iry laxal rule of covet Tills form, apinaved lay the Judicial CrltfC of Ur Uni" Stales in8quariber 1974, is regwtd (or die me of ere Clerk ol'Ccurl for the nlu)wsc ul'initiating the civil d0litcl Shot. rSFELA 5IRITD0 .A50.1'.AE1TP.dGEOFTNLSPoR361 Chris O'Hare (b) Cuwuy ufaeidcnee ofFnn Limed NutnulT Palm Beach tL7CEPT /.v US PL077FFC45ES1 DEVENLIAN15 Town Of Gulf Stream, Town Of Gulf Stream Commission, Town Manager William Thrasher, Special Magistrate Lara Donlon, Officer David Ginsberg, Sergeant Adam Gorel, Sloven Tobias 8 Marty Minor County of RevdencenfFun Liud(kfwaLmt Palm Beach i/Y L'S. YLdfirIFFC41ESO.AZI) NOTE N' LA.% DCOS7IEUVAlID I;C%SES,L'SETI]ELOGTIMNOF TIIETRICT OF L%%1) h.'V0LNT1) t(C) AlWmnflAnn. 1' ,vne,7JJm�r..ur17e1rFAvk. \'umMl R rt Genihman. Esquire 2160 W Atlantic Avenue, 2d Floor Delray Beach, Florida 33445 Anumev'a l /JArwnl 11. BASIS OFJURISDICPIONrree e,ar- .PmomBworjyj III. CITIZENSHIP OF PRINCIPAL PARTIESjpt aced:rmoatBoresranop PERSONAL IVORY PERSONAL IVORA 0J10 A "upWtc -7365 Paeuul L4Un- 0 315 Aarp4 . Pdud hdaca ukilo) Uabiliry 035711ddr Cie 0120Aaa01111, Dbdc Phan .W SNnda Paamd kuy 0330 Fdaal Empl*eo Frdud ILbiEpy Lisbilin• _7361:ulcvta l'aamil 0340Alainc lajn) lh+lwl 0343%WmNduv Liabidh' Labilow PER.SONALPROPERTY 0 350 k olliI A'rhide .1373 qhe Fraud a353M,aa Adiick 3371 Truth u LmJag PWuca Lublin; 031u M. 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RELATEDCASE(S) IF ANY j5eO1OniCl1O"' /' RgKC Donald Middlebrooks _ n ISOCI:LT 1•rtlAmul 13- 80432- CV- Mkidletxnoks 10/1612013 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 1 of 36 CHRIS O'HARE, Plaintiff, VS. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. TOWN OF GULF STREAM; TOWN OF GULF STREAM COMMISSION; TOWN MANAGER WILLIAM THRASHER, Town Manager, in his individual capacity and official capacity as the Town manager for the Town of Gulf Stream; TOWN SPECIAL MAGISTRATE LARA DONLON, Special Magistrate, in her individual capacity and official capacity as a Special Magistrate for the Town of Gulf Stream; OFFICER DAVID GINSBERG, Officer, in his individual capacity and official capacity as an Officer for the Town of Gulf Stream; SERGEANT ADAM GOREL, Sergeant, in his individual capacity and official capacity as an Sergeant for the Town of Gulf Stream; STEVEN TOBIAS, Building Official, in his individual capacity and official capacity as a Building Official for the City of Delray Beach; and MARTY MINOR, Planning Consultant, in his individual capacity and official capacity as a Planning Consultant for the Town of Gulf Stream. Defendants. COMPLAINT FOR LEGAL DAMAGES AND OTHER RELIEF COMES NOW, Plaintiff, CHRIS O'HARE by and through his undersigned counsel and hereby sues Defendants, the TOWN OF GULF STREAM, TOWN OF GULF STREAM COMMISSION, TOWN MANAGER WILLIAM THRASHER, TOWN SPECIAL MAGISTRATE LARA DONLON, OFFICER DAVID GINSBERG, SERGEANT ADAM GOREL, STEVEN TOBIAS and MARTY MINOR and alleges: Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 2 of 36 INTRODUCTION Plaintiff, Chris O'Hare, brings this action to recover monetary damages from the Defendants for violating Plaintiffs civil rights. Beginning in September of 2011, O'Hare's unfriendly encounter with Ginsberg set off a chain of events that led to the Town of Gulf Stream and some of its employees retaliating against O'Hare in numerous ways to punish O'Hare for his insolence in demanding equal treatment under the law. In doing so, the Town has (a) enforced unconstitutionally vague laws, and parts of the Town Code which give no notice that they carry the force of law, (b) prosecuted O'Hare without giving any notice as to what facts and law would be in question beforehand, and (c) required O'Hare to remedy supposed violations under the Town Code, utilizing unconstitutionally vague standards. Indeed, the Town and its named Defendants agents have acted upon their invidious animus and utilized vague and unnoticed standards to carry out their retribution. O'Hare has suffered dearly, both economically and emotionally. JURISDICTION AND VENUE 1. O'Hare brings this action under 18 U.S.C. 1983, Florida common law and F.S.S. 768.28. 2. This Court has jurisdiction under 28 U.S.C. 1331, which gives district courts original jurisdiction over civil actions arising under the Constitutional laws or treaties of the United States. 3. This Court has jurisdiction under 28 U.S.0 1443(2), which gives district courts jurisdiction over actions to secure civil rights extended by the United States government. 2 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 3 of 36 4. This Court has jurisdiction under 28 U.S.C. 1367, which gives the district court supplemental jurisdiction overstate law claims. 5. Venue is appropriate in this judicial district under 28 U.S.C. 1391(b) because the events that gave rise to this complaint occurred in this district. PARTIES 6. Plaintiff, Christopher O'Hare ( "O'Hare ") is now and at all times pertinent was a resident of the Town of Gulf Stream, Palm Beach County, Florida which is located in the United States, Southern District of Florida. 7. Defendant, Town of Gulf Stream ("Town ") is a Florida municipality duly formed and operating under the laws of the State of Florida and the United States of America. 8. Defendant, David Ginsberg ( "Ginsberg ") was a Zoning Enforcement Officer for the Town and an active member of the Town's municipal police force during all times relevant. 9. Defendant, Adam Gorel ( "Gorel ") was a Sergeant for the Town and an active member of the municipal police force during all times relevant. 10. Defendant, Town Manager William Thrasher ( "Thrasher "), was at all times pertinent, the Gulf Stream Town Administrator with authority over the actions of Ginsberg, Gore], Minor and the Town. 11. Defendant Magistrate Lara Donlon ( "Donlon "), was at all times pertinent, (presenting herself or acting as) the Gulf Stream Town Special Magistrate who presided over Code Enforcement Hearings. 12. Defendant Marty Minor ( "Minor "), was at all times pertinent, the Town's Planning Consultant. 3 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 4 of 36 13. Defendant, Town of Gulf Stream Commission ( "Commission ") is the Commission duly formed and operating under and for the Town, a Florida municipality operating under the laws of the State of Florida and the United States of America. 14. Defendant, Steven Tobias ( "Tobias ") is a Building Official for the City of Delray Beach, which is under an interlocal agreement to provide building inspection services. GENERAL ALLEGATIONS (a-e) (a) Officer Ginsbera's Illeeal Search and Seizure Under the Fourth and Fourteenth Amendments 15. Starting on or about August, 2011, O'Hare chose to perform improvements on his residence located at 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 - which is located in the Place Au Soleil subdivision. 16. The improvements involved both interior and exterior renovations to his residence including the replacement of the existing roof. 17. On or about September 15, 2011, Ginsberg arrived at O'Hare's home, ordering landscaping workers to cease and desist for lack of a vendor registration decal on the workers' commercial vehicle. When O'Hare asked Ginsberg if the workers could continue while someone went to Town Hall to obtain said decal, Ginsberg refused and stated that he felt compelled to "act tough" with these "beaners" or they would never comply with the Town's rules. 18. Upon hearing such blatant racist remarks from Ginsberg, O'Hare replied with moral disapproval, "This is just great, I got a racist and a Barney Fife protecting my family." 19. Ginsberg then became agitated and shook his finger at O'Hare, whereupon Ginsberg retorted that O'Hare should be grateful that when the new Wal -Mart opened (on the west side of Federal Highway and across from the entry to the Place Au Soleil 4 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 5 of 36 subdivision), that he, Ginsberg, would be keeping the trash out the neighborhood - referring ostensibly to the non -white people of color, ethnicity, or national origin who would supposedly be attracted to the new Wal -Mart store. 20. On or about October 28, 2011, Ginsberg, acting in his official capacity under the color of municipal law, entered the curtilage of O'Hare's property and inside O'Hare's house with neither consent nor warrant, all the while, dawning a police officer's pistol. 21. Prior to entering the curtilage of O'Hare's home, Ginsberg asked Vincent Gonzales ( "Gonzales "), a lawn maintenance worker, who was immediately adjacent to the gate surrounding O'Hare's curtilage; Gonzales responded - "only workers." 22. Ginsberg then proceeded through a self- closing gate into the curtilage of O'Hare's residence, speaking to no person(s), past several Spanish speaking minority painters, working on the house. 23. There was no apparent cause and/or justification; Ginsberg's intentions were totally unknown at the time. 24. Having breached O'Hare's curtilage, but before entering O'Hare's house, again with neither consent nor a warrant, Ginsberg made contact with the only Caucasian construction worker, John Gundlach ( "Gundlach "). 25. When Gundlach became aware of Ginsberg's presence, and seeing that Ginsberg was bearing a firearm, Gundlach inquired about Ginsberg's identity and intentions. 26. Ginsberg said he wanted to enter the home. Gundlach refused Ginsberg's request and warned him that Gundlach did not have authority to allow Ginsberg's entry. 5 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 6 of 36 27. Ginsberg, saying nothing further and without presenting any official credentials whatsoever, proceeded to open O'Hare's rear porch door and walked into O'Hare's home over the continued verbal objections of Gundlach. 28. As he entered O'Hare's home, Ginsberg finally replied to Gundlach's objections by stating - "I am a police officer. 1 can go anywhere I want." 29. While standing in the middle of O'Hare's home, Ginsberg consulted with Thrasher via Ginsberg's cell phone. 30. After Ginsberg finished his call with Thrasher, Gundlach informed Ginsberg that he had spoken with O'Hare and that O'Hare wanted the officer to leave the home. 31. Ginsberg replied forcefully - "You're the one who has to leave!" and exclaimed - "I want you all to stop working and leave right now!" 32. Gundlach then informed all of the workers of Ginsberg's cease and desist order. 33. Immediately upon leaving, Ginsberg drove his town -owned vehicle around the comer to the property at 2516 Avenue Au Soleil, located adjacent to O'Hare's home at 2520 Avenue Au Soleil, and owned by O'Hare. Once there, Ginsberg proceeded to walk past the same maintenance worker, Gonzales, through another self - closing gate, and entered the curtilage of O'Hare's property. Ginsberg then reached over a six foot high solid wood fence and photographed the curtilage and those portions of O'Hare's home located at 2520 Avenue Au Soleil, not visible to the public, including the interior of O'Hare's home as seen through the rear porch of O'Hare's private backyard. 34. Ginsberg departed O'Hare's home and returned a short time later, accompanied by Steve Tobias, a Building Official for the City of Delray Beach, which is under contract with the Town to provide building inspection services for the Town. Ginsberg and 0 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 Page 7 of 36 Tobias attempted to gain entry to the interior of O'Hare's home at the front entry door and the side garage door; but found both doors locked. Ginsberg then proceeded to take additional pictures of the rear of O'Hare's home and adjacent curtilage area by positioning his camera over the top of the six foot high fence which encloses the curtilage of O'Hare's home. 35. While Ginsberg stated in his subsequent police report regarding this incident that he was suspicious of "banging noises" at O'Hare's residence due to two recent burglaries of "unoccupied houses" in the Town, Town Attorney John Randolph subsequently revealed that Ginsberg said he really entered O'Hare's home unannounced to check the immigration status of the workers therein. 36. On or about March 5, 2012, Ginsberg repeatedly slammed on O'Hare's door. After Gundlach answered the door, Ginsberg proceeded to disparage O'Hare, ending his tirade by stating that the Town - "had Mr. O'Hare's number." 37. On or about March 5, 2012, Ginsberg stood in that part of the street that faces the front of O'Hare's home and proceeded to stare down O'Hare, who was standing in his front yard, in an outrageous and menacing fashion so as to cause O'Hare to be concerned for his safety. 38. On March 20, 2012, O'Hare pulled into his driveway at 2516 Avenue An Soleil with a large trailer in order to unload some boxes, etc. into his garage. Due to the size of the trailer, O'Hare had to park across his driveway and partly on his lawn. Ginsberg pulled up behind O'Hare's trailer, parked his patrol car facing O'Hare, got out of his car and walked to the rear of the trailer, stopped and stared at O'Hare for a few minutes without speaking. Ginsberg inexplicably returned to his patrol car and moved it li Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 8 of 36 forward facing away from O'Hare. Ginsberg again got out of his patrol car and approached O'Hare and inquired of Mr. O'Hare as to how long he planned to have the trailer parked there. O'Hare explained that he was just unloading a few items and would be leaving in few minutes. Ginsberg then left 39. Later in 2012, O'Hare learned from other Town residents that the Town police systematically execute illegal searches by routinely entering the curtilage of residents' homes without consent, authority or cause. 40. On or about October 11, 2013, O'Hare learned that another resident of the Town, Martin O'Boyle, was contacted by Gore], acting as a zoning officer, to let Mr. O'Boyle know that two painters were working at his house without a Town work permit. Mr. O'Boyle asked Gore] if he could get work permits at a later date and if Corel could allow the workers to continue. Mr. O'Boyle then went on to ask Corel if it would be "cool" to take this one up with Town Clerk Rita sometime next week. Gorel replied accommodatingly that they ( "the police ") do whatever "Town Hall" says and chose to delay enforcement indefinitely until hearing from "Town Hall." (b) Metal Roof 41. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 40. 42. On or about August 29, 2011, O'Hare submitted a "ROOF/RE -ROOF PERMIT APPLICATION" to the Town for a replacement roof of his single- family home, for which he was already in the course of improving. 43. The Re- Roofing Permit was issued on or about the day it was applied for with the sole condition that work commence within 180 days or else it would expire. 8 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 9 of 36 44. After the existing roof was removed, O'Hare became suspicious that the home's structure was not strong enough to support the appropriate replacement — a white colored concrete Flat tile roof which was deemed appropriate in design and character for the Place Au Soleil district. 45. On or about October 26, 2011, O'Hare contacted his roofer to let him know he was concerned about the structural integrity of his roof and would be seeking to change the roof covering materials on his residence from concrete tile to metal - because a metal roof was patently lighter than concrete tile. 46. On or about November 3, 2011, John Mulleavey of Roof Tec, e- mailed O'Hare that, while attending a Roofing Association Meeting the previous evening, he discussed "with another long -time roofing contractor in our area" that O'Hare was considering a metal roof, and was told by the contractor - "that it doesn't matter what system we use, THE TOWN OF GULFSTREAM DOES NOT ALLOW METAL ROOFS OF ANY KIND." 47. On or about November 15, 2011, 0 Hare's roofer submitted an application on O'Hare's behalf for a metal roof permit in the same white color as the previously approved roof. 48. Thrasher, acting in his capacity as Administrator, rejected O'Hare's request to change the roof materials to metal. Mulleavey informs O'Hare by e-mail that - "We submitted the permit revision today and was rejected by Bill Thrasher with a simple and stem "No Metal Roofs PERIOD." 49. However, Thrasher failed to inform O'Hare there was a metal roof exception clause under Section 70- 187(2) of the Town Code, the Gulf Stream Design Manual - which, 7 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 10 of 36 in fact, authorizes metal roofs on single - family residences under certain circumstances. Although Article V, section 70 -99(3) and Article VI, section 70- 187(2) generally state that all metal roofs are prohibited, Article VI, section 70- 187(2) includes an exception which reads, in pertinent part: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re- roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof. Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. 50. On or about December 13, 2011, O'Hare had a certified engineer, Terrence E. Lunn. PE, inspect the house's roof framing. 51. The next day, December 14, 2011, engineer Lunn informs O'Hare that his roof will not support the type of concrete file required by the Town and issued O'Hare a certified letter as to same. 52. On or about March 6, 2012, after engineer Lunn certified that O'Hare's home could not support a concrete tile roof thereby entitling O'Hare to the benefit of a metal roof under Section 70- 187(2) of the Gulf Stream Design Manual, Thrasher, in a letter to O'Hare, refused to acknowledge the metal roof entitlement as a matter of policy, and informed O'Hare that metal roofs were prohibited and should he want a metal roof, O'Hare needs to apply for a variance. Thrasher also informed O'Hare that the variance process would require an inspection of the property by the Town's engineer in order to verify the conclusions reached by Lunn and the veracity of Lunn's certification letter. 53. On or about March 28, 2012, O'Hare, relying upon the provisions of Sec. 70- 187(2) of the Town Code, filed an appeal of Thrasher's March 6, 2012 decision in which he stated that a variance would be required for a metal roof. 10 Case 9:13- cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 11 of 36 54. On or about March 30, 2012, the Town through Clerk Rita Taylor and Thrasher, requested that the Town Engineer be allowed to verify O'Hare's engineer's Letter of Certification. Since verification was not required to meet the exception of Section 70- 187(2), O'Hare refused. 55. On or about April 13, 2012, at a Hearing of the Town Commission sitting as the Board of Adjustment to consider O'Hare's appeal, Thrasher stated that he knew of conflicts regarding metal roofs in Article V and Article VI, but felt the more restrictive Article V was controlling. Thrasher took this position despite the fact that Article VI, section 70- 186(b) of the Town Code states that where portions of Article VI may conflict with portions of Article V, Article VI shall prevail - thus making the exception to a metal roof as outlined in Section 70- 187(2) the exception that supersedes the rule. 56. Town Clerk Rita Taylor stated that she had spoken to Diana, as secretary at Rooffec, the roofer who had worked on O'Hare residence, and Diana said that O'Hare "just wanted a metal roof." 57. Thrasher stated that O'Hare wanted a metal roof and further stated that O'Hare even asked the Town for a metal roof before conducting a structural analysis. 58. Town Attorney John Randolph said that if O'Hare could let the Town verify the basis for Engineer Lunn's certification, then O'Hare would be entitled to a metal roof and that a variance would not be required. 59. However, at the May 11, 2012 Board of Adjustment hearing, a continuation of the April 13, 2012 hearing, the Town Commission and Town Attorney John Randolph stated that despite what the Town Code said, the Town ought to be able to review engineer Lunn's certification for veracity. 11 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 12 of 36 60. Then Vice Mayor Joan Orthwein stated that a variance was required because of questions surrounding Engineer Lunn's report; and also stated that because the roof had held concrete tiles for the last 35 years, the Board had a right to question the integrity of the engineer's certification. 61. Commissioner Devitt, sitting on the Board, said that the metal roof would be a "done deal" if the town could verify the engineer's certification. 62. Commissioner Dering, sitting on the Board, said that the issue of whether O'Hare was entitled to a metal roof or required a variance would become "quite clear" upon allowing the Town's Engineer to inspect O'Hare's home and verify Engineer Lunn's certification. 63. Also during the May 11, 2012 Board of Adjustment hearing, Town Attorney Randolph conceded that O'Hare had done everything required of him to qualify for the exception allowing a metal roof under Town Code Section 70- 187(2), and further no variance was required for O'Hare's metal roof; but because O'Hare would not let the Town independently verify engineer Lunn's certification by an engineer of the Town's choosing, O'Hare would need to apply for a variance. 64. O'Hare was never given any notice that the April 13, 2012, Board of Adjustment Hearing would address the factual veracity of Engineer Lunn's certification and as such was not given a meaningful opportunity to prepare arguments of law and present factual evidence to address the Board's concern. Rather, O'Hare was only noticed that the Board would address whether Thrasher was wrong to require a variance in order for O'Hare to have a metal roof permit as a matter of law. 12 Case 9:13- cv- B1053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 Page 13 of 36 65. Many times during both the April 13, 2012 and May 11, 2012 Board of Adjustment Hearings, O'Hare's counsel, Mr. Roeder, asked the Board what part of the Town's Code specifically provides for a variance from the regulations of Chapter 70, including 70- 187(2), and further asked the Board where such a provision could be found. The Board did not respond to either inquiry. 66. After the Board of Adjustment hearing on May 30, 2012, the Town Commissioners issued a Final Action sustaining Thrasher's denial of a metal roof without first obtaining a variance. 67. On July 13, 2012, just two months after the final action by the Commission in the Appeal before the Board of Adjustment, the Commission changed Sec 70- 187(2) of the Code with the adoption of Ordinance 12/4, to mandate engineer's certifications be presented with studies/reporis and a provision giving the Town the discretion to inspect the applicants home with their own engineer - precisely the conditions they placed upon O'Hare at the previous appeal hearings without any notice. 68. On or about June 18, 2012, O'Hare filed a petition for Certiorari before the 15a' Judicial Circuit Court of Florida challenging the Commission's final action on Thrasher's decision. The Town's response to this petition included their assertions that the use of the word "may" as it appear; in the Town Code would mean "may or may not" and the choice of which meaning applied was at the sole discretion of the Town. 69. On June 28, 2012, O'Hare also filed for an emergency writ of mandamus seeking to compel the Town to issue a permit for a metal roof because the Florida hurricane season was imminent. 70. On September 4, 2012, the writ of mandamus was denied with no opinion. 13 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 14 of 36 71. On or about January 28, 2013, the 15'h Judicial Circuit ruled on O'Hare's petition for Certiorari by issuing a per curium denial. 72. On or about February 27, 2013, O'Hare sought appellate review of the 15a' Judicial Circuit Court order before the Fourth District Court of Appeals. 73. On June 18, 2013, with no response from the Town, the appeal to the Fourth District Court of Appeals was denied on its merits - with no opinion. 74. Since October of 2011, the O'Hares have been prevented from installing a proper roof on their home and, as such, have been unable to obtain homeowners insurance. Because of the events described above, O'Hare, his wife, and his minor children have been forced to endure much consternation and severe emotional distress for which Mrs. O'Hare has sought and received medical assistance. (c) Illegal Seizure of Plants And O'Hare 75. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 74. 76. On or about November 21, 2011, O'Hare was planting several small trees near the edge of his home's property, apparently within the public right of way, yet further from the edge of the road than similar and larger trees planted at several other homes within the Town's district, including the home of then current Commissioner Anderson at 960 Indigo Drive in the same Place Au Soleil subdivision. The portion of the public right -0f - -way where the trees were planted is the continuous landscaped zone located from the edge of the roadway pavement to the edge of his property line. The maintenance responsibility of this area has historically been that of the owner of the property immediately adjacent to the right -0f - -way. 14 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 15 of 36 77. Gorel observed O'Hare in the process of planting the trees and proceeded to converse telephonically with Thrasher in front of O'Hare. 78. Gorel thereafter ordered O'Hare to move the trees back from the edge of the road, but refused to inform O'Hare how far the plants needed to be moved back. 79. O'Hare then gets Gorel's consent to retrieve his copy of the Town Code and asks Gorel to show him where in the Code was the prohibition against O'Hare's type of plantings in the right of way. 80. Gorel declined to look in O'Hare's copy of the Town Code and retorted by telling O'Hare that - "police have their own book of rules." After again talking on his cell phone to Thrasher, Gorel informs O'Hare that Thrasher said the plants had to be removed "or else." 81. On or about November 22, 2011, Thrasher sends Ginsberg to O'Hare's residence to photograph said plants. 82. On or about November 23, 2011, Thrasher had a letter hand - delivered to O'Hare stating that O'Hare needed a `landscaping permit prior to commencing any landscaping on [his] property." 83. Thrasher also informs O'Hare that the police use the same code book that O'Hare had presented to Gore] two days before. 94. On or about March I, 2012, Lou Roeder, attorney for O'Hare, requests the Town for a cite of that portion of the code that requires a permit for "any" landscaping. 85. On or about March 6, 2012, Thrasher replied to Mr. Roeder's question and stated, in effect, "any" landscaping is what the Town Administrator, says it is. 15 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 16 of 36 86. In the same reply, Thrasher also stated that he was directed by the Town Commission in 2004, to prohibit planting in the right of way as a matter of policy, but could not provide a reference to any Town law. (d) Fraudulent Code Violations 87. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 86. 88. On or about October 1, 2012, Thrasher sends a town employee to photograph O'Hare's landscaping at 2520 Avenue Au Soleil. 89. On or about October 5, 2012, Thrasher initiates a -mails back and forth with Board Members of the Place Au Soleil Homeowners Association, soliciting a negative reaction to O'Hare's recent plantings. Thrasher tells the HOA Board members that "if [they] are happy with [O'Hare's planting] in [their] community, then he is not going to force the issue with the O'Hares "; however, "if [they] are not happy, [they] are to advise him and he will take the appropriate action." 90. On or about October 16, 2012, Minor responds to Thrasher's request to review the landscaping at O'Hare's home. In a subsequent memorandum, Minor reports to Thrasher that O'Hare is in violation of Town Code Sec. 70 -32, 70 -146, and 70 -150. 91. On or about November 5, 2012, O'Hare receives a code violation letter stating that he is in violation of Town Code: (a) 58 -138 for moving fill on his property without a permit, (b) 70-150 which outlines the types of plants found in the town; (c) 70-32 which summarizes the common characteristics of the Place Au Soleil district, including, as undefined, "open front lawns "; and (d) 70 -146 which outlines several purposes of the landscape standards. 16 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 17 of 36 92. On or about January 28, 2013, O'Hare sends Thrasher a letter requesting clarification of the November 5, 2012 charges because O'Hare did not understand in what way he had violated the quoted sections of the Gulf Stream Design Manual. More specifically, O'Hare took issue with Thrashers interpretation of those parts of the code which carry the force of law and those parts of the code that merely reference the history and past characteristics of the Town, and those parts that resemble an architectural reference manual intended to be used for the purpose of reviewing development proposals. 93. On or about February 26, 2013, Thrasher responds to O'Hare's January 28, 2013 letter not by answering his request for clarification, but by informing O'Hare of a formal Code Enforcement hearing date which had been set before Dolon. 94. O'Hare requested a copy of the Town's Staff Report prior to the Code Enforcement hearing but received no response. 95. On or about February 26, 2013, the Town informed O'Hare of a Code Enforcement hearing scheduled for March 21, 2013. 96. When Thrasher is asked during the hearing on cross examination to define what constitutes an `open front lawn," he replies, `9 don't think that, specifically, it's defined. The fact that you can or cannot see the front of the home would be an indicator ..." Thrasher continued, "At this time, ! do not know if there is a definition in our code of open front yards. It is a general tens that 1 have referred to and referenced whether or not you could see the front door, see the front of the house" 97. On or about April 2, 2013, Donlon, finds that (a) 58 -128 does not apply, (b) no violation for 70 -150 or 70 -146, but does find (c) O'Hare in violation of the "open front 17 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 Page 18 of 36 lawns" provision under 70 -32(a) entitled "Summary of district [Place Au Soleil] characteristics." 98. Donlon then orders O'Hare to remove the plants in his driveway "that block the view of the home and return it to the previously existing condition." Not defining what IT is, or to what extent any plants need to be removed to open the view to the driveway, and without reference to any pre - existing date or configuration to which the landscaping would need to be reverted. 99. On or about April 19, 2013, Thrasher met O'Hare and O'Hare's employee, Rodrigo Tejera, at O'Hare's home to inspect landscaping and determine whether the property complied with Donlon's order. 100. While Thrasher acknowledged that O'Hare now met the definition of an "open front lawn" as ordered by Donlon, he insisted that O'Hare was still not in compliance because he did not return his home to its pre - existing condition. 101. Thrasher then showed O'Hare a never before -seen photo — evidently copied from Google Earth Street View, with a time stamp of May 2011, and demanded that O'Hare restore his landscaping to conform to that photo. 102. The photo was not offered into evidence during the March 21, 2012 Code Enforcement Hearing before Donlon, and was neither referenced nor presented to O'Hare prior to the April l9, 2013 meeting with Thrasher. 103. On the same day, O'Hare riled a Motion for Reconsideration before Donlon, because the findings of facts and conclusions of law were not supported by the evidence presented at the hearing by Thrasher. 18 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 19 of 36 104. On or about May 13, 2013, O'Hare searched the Town's public records and discovered that (1) the sworn testimony of Thrasher wherein he states (a) the town has consistently used an "open front lawns test" when enforcing landscaping provisions of the code; and (b) that all non - complying similarly situated properties were lawfully "grandfathered in" and (2) hired witness Minor's testimony that O'Hare was planting prohibited species were all directly contradicted by photographic and other evidence located in the Town's own records. These records contradicted Thrasher's unwavering definition of "open front lawns" from his own testimony at the hearing. 105. O'Hare filed a Motion for Sanctions for Fraud Upon the Court after discovering that critical evidence presented by the Town at the March 21, 2013 Code Enforcement Hearing before Donlon was intentionally false. 106. On or about May 14, 2013, O'Hare attended the Fine Assessment Hearing before Donlon, wherein Donlon refused to consider O'Hare's Motion for Reconsideration and his Motion for Sanctions in the presence of Town Attorney John Randolph. 107. Donlon also found that O'Hare had not complied with her order to remove plants from the driveway, despite the fact that removing plants from the driveway in their entirety was not specifically mandated by Donlon's April 2, 2013, Order. 108. Donlon fined O'Hare $100 dollars a day instead of $200 a day because O'Hare took remedial action and attempted to comply with Donlon's Order. Before issuing the order, Donlon appeared to recognize that the Order was vague, but nevertheless ruled for the Town to ensure that her law firm would continue serving as the Special Magistrate at the pleasure of the Town. 19 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 20 of 36 109. The same day, O'Hare removes vegetation to conform to Thrasher's photograph - at an estimated cost of $5,400. 110. On all relevant dates in this section, Donlon was not a duly appointed Special Magistrate pursuant to Town Code Sec. 2- 67(a)-4c) and, as such, without jurisdiction. (e) Garage Permit - Unilateral Style Change 111. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 110. 112. On or about September 15, 2012, O'Hare submitted a permit application to Thrasher for a hurricane -rated garage door on his residence at 2520 Avenue Au Soleil. 113. On or about September 18, 2012, Thrasher denies the garage door permit saying that it did not conform to the "Bermuda" Style as defined in the Town Design Manual. 114. Thrasher made this determination despite the fact that the Town Manual, a part of the Town Code, classifies O'Hare's home style as "OtherNarious ", not "Bermuda ". Thrasher instructed Minor to find any reason to justify changing this property's zoning description as it is codified in the Town's Code therefore to provide Thrasher with a supported rational basis for this change and then, for the purpose of enforcing a design standard, not clearly defined in the Town's Code, did change the official description of this property without the benefit of a public hearing as required by the Town Code. 115. Because Thrasher unilaterally redefined O'Hare's home style as "Bermuda" instead of "OtherNarious," O'Hare is not now entitled to improve his home in ways allowed under "OtherNarious" Style but must adhere to contrary standards reserved exclusively for "Bermuda" Style. 20 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 21 of 36 COUNT Illegal Search and Seizure Under the Fourth and Fourteenth Amendment 116. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 115. 117. Ginsberg entered the curtilage and home of the O'Hare family on October 28, 2011, without a warrant or exigent circumstances as either a code enforcement officer, police officer, or both, in violation of the Fourteenth Amendment Search provision. 118. The Town Code Sec. 2 -26 specifically cross references Florida State procedures for obtaining inspection warrants before entering residential property. 119. Ginsberg seized O'Hare's workers without a warrant and in the course of executing an illegal search, thereby causing harm to O'Hare's right to privacy, emotional wellbeing, the loss of contractual services, and diminution in value of building materials. 120. Ginsberg entered the curtilage of the O'Hare home on October 28, 2011, without a warrant, authority or exigent circumstances as either a code enforcement officer or law enforcement officer, or both, in clear violation of the Fourteenth Amendment Search provision. 121. Ginsberg attempted to enter O'Hare's home a second time on October 28, 2011, accompanied by Tobias, without a wan-ant, authority or exigent circumstances as either a code enforcement officer or law enforcement officer, or both, in clear violation of the Fourteenth Amendment Search provision. 122. Additionally, the information gained from Ginsberg's illegal search was used as the basis for a Notice of Violation issued by Thrasher on October 29, 2011, and subsequently and prejudicially influenced the Town Commission when they 21 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 22 of 36 subsequently denied O'Hare's exemption for a metal roof without any apparent cause on May 30, 2012. COUNT H First Amendment Retaliation 123. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 122. 124. Ginsberg retaliated against O'Hare because of O'Hare's association with non - whites. 125. In the alternative, Ginsberg retaliated against O'Hare because of O'Hare's critical statements and expressed moral outrage at Ginsberg's disposition towards race and displays of overt racism. 126. As a result of Ginsberg retaliation, Ginsberg caused harm to O'Hare's right to privacy, emotional well- being, the loss of contractual services, and diminution of value of building materials as well as the harms stated above. COUNT III Impairment of Contract Based on Race 127. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above Paragraphs l through 126. 128. Ginsberg impaired O'Hares contracts during the unlawful search on October 28, 2011 in violation of 42 U.S.C. 1981 when he ordered O'Hare's contractorstworkers to cease performing their obligations based upon Ginsberg's previously - stated beliefs as to their non -while status as "beaners," thereby furthering his promise to rid the neighborhood of "trash." 129. This impairment of contract under color of law caused O'Hare to suffer loss of contract services, and diminution of value of building materials and labor. 22 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 23 of 36 COUNT IV Denial of Eaual Protection Under the Fourteenib Amendment 130. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above Paragraphs I through 129. 131. Ginsberg performed an illegal search, seizure, and otherwise acted harassingly, intruding upon O'Hare's seclusion, based upon an irrational basis that was motivated by invidious purposes - O'Hare's association with non - whites and Ginsberg's personal spite toward O'Hare. 132. In acting without a rational basis, Ginsberg caused all of the aforementioned harms in Count I through Count IV above. COUNT V 133. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above Paragraphs 1 through 132. 134. Thrasher, the direct supervisor of Ginsberg, whom he was in constant and detailed communication concerning all code enforcement issues as well as contemporaneous telephonic contact during the search, ratified, encouraged, or otherwise acted favorably towards Ginsberg's October 28, 2011, illegal search, seizure, and other prior and subsequent acts, with deliberate indifference to O'Hare's constitutional rights which violates the civil rights as described in Counts I through IV above. COUNT VI Denial of Equal Protection/Substantive Due Process Under the Fourteenth Amendment — Municipal Liability 135. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs Ithrough 134. 23 Case 9:13- cv- B1053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 24 of 36 136. Thrasher, the chief executive policy enforcer of the Town and the direct supervisor of Ginsberg, in his code enforcement duties, with whom he was in constant and detailed communication concerning all code enforcement issues, ratified, encouraged, or otherwise acted favorably towards Ginsberg's October 28, 2011 illegal search, seizure, and other acts with reckless disregard to O'Hare's civil rights as described in Counts I through V, above. 137. The Town policy of allowing police /code enforcement officers to execute illegal searches without a warrant, as implemented through Thrasher, caused the harms in Count 1 through VI above. 138. Town adjudicated against O'Hare using a quasi-judicial process presided over by an unauthorized Special Magistrate who acted without proper authority. COUNT VII Trespass 139. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above Paragraphs I through 138. 140. On or about October 28, 2011, Ginsberg unlawfully and intentionally entered O'Hare's home wherein he ordered O'Hare's contractors/workers to cease work. 141. The same day, Ginsberg intentionally and unlawfully entered O'Hare's property wherein he photographed the curtilage of the O'Hare home. 142. The same day, Ginsberg returned to O'Hare's property with Tobias and intentionally, unlawfully and successfully attempted to enter O'Hare's home for a second time, and to photograph the curtilage of the O'Hare home from over a six foot high privacy fence. 24 �� s Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 25 of 36 143. These actions caused O'Hare the aforementioned harm in Count 1 through Count V11 above. COUNT VIII Tortuous Interference with Contract 144. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs I through 143. 145. On or about October 28, 2011, Ginsberg, in the course of illegally trespassing in O'Hare's home, intentionally and illegally caused O'Hare's contractors to cease work, thereby denying them the ability to fulfill their contractual duties, and causing O'Hare to undergo delays in construction, money to pay for services not rendered and all other harms noted in Counts 1 through VIII above. COUNT IX Intrusion Upon Seclusion 146. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above Paragraphs 1 through 145. 147. Ginsberg's trespass upon O'Hare's home on October 28, 2011, whereupon he photographed the curtilage, backyard, and interior of O'Hare home, and Ginsberg's return visit to again photograph O'Hare's curtilage and backyard, constituted a highly offensive intrusion upon the solitude or seclusion of O'Hare's private residential spaces thereby causing O'Hare emotional distress, insecurity, concern for the safety of his family, and loss of privacy interest in the non - public portions of his home. 25 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 26 of 36 Count X Denial of Equal Protection 148. Plaintiff re- alleges and re-avers each of the allegations set forth in the above Paragraphs 1 through 147. 149. Thrasher denied O'Hare equal protection by denying O'Hare a vested property interest to a metal roof with no rational basis and/or based on invidious contempt, spite, personal taste, or other illegitimate government interest with willful disregard to the Town's Code. 150. As a result of the aforementioned conduct, O'Hare has been forced to endure two hurricane seasons without a properly weatherproofed roof, was unable to acquire homeowner insurance because he lacked a completed roof, and was forced to mend and repair leaks caused by storm events otherwise preventable by a proper roof. O'Hare was also caused to endure costly appeals and suffered emotional distress stemming directly from Thrasher's harassing treatment and indirectly from the anxiety, pain, and suffering of his family stemming from the adverse living conditions caused directly by Thrasher. 151. Thrasher caused all of the harms noted in Count 1 thru X above. COUNT XI First Amendment Retaliation 152. Plaintiff re- alleges and re-avers each of the allegations set forth in the above Paragraphs Ithrough 151. 153. In the alternative, Thrasher denied O'Hare's metal roof permit because O'Hare had exhibited dissidence towards one of the Town's employees, Ginsberg, when O'Hare called Ginsberg a "racist" and a "Barney Fife" in September, 2011. W.. Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 27 of 36 154. Town Manager Thrasher caused all of the harms noted in Count Xl. COUNT XII Illegal Seizer under the Fourth and Fourteenth Amendments 155. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs I through 154. 156. On or about November 22, 201 I, Gorel illegally seized O'Hare and his trees when he ordered O'Hare to move the trees planted in the Right of Way of O'Hare's property. 157. O'Hare was seized without probable cause of a violation of law and/or with the intentions to retaliate against O'Hare for his dissidence stemming from speech and/or invidious spite. The seizure of O'Hare was otherwise unreasonable in scope and duration when Gorel ordered Chris to personally remove the plants. 158. O'Hare suffered emotional distress, a deprivation of dignity, and was forced to personally undertake an extremely laborious task. COUNT XIII Conversion of Chattels or Trespass to Chattels 159. Plaintiff re- alleges and re-avers each of the allegations set forth in the above Paragraphs I through 158. 160. On or about November 21, 2011, Gore] intentionally and illegally exhibited domain over O'Hare's plants when he ordered O'Hare to move the plants on his property causing O'Hare time and labor to comply with Gorel's order and depriving O'Hare of his property interest in exclusive control of his chattels, and causing O'Hare emotional distress from Gorel's assault on O'Hare's dignity and all harms noted in Count Xll. 27 7 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 28 of 36 COUNT XIV Illegal Selzer under the Fourth and Fourteenth Amendments — Supervisory & Municipal Liability 161. Plaintiff re-alleges and re-avers each of the allegations set forth in the above Paragraphs I through 160. 162. Thrasher, the chief executive policymaker for the Town, had supervisory and municipal liability for Gorel's November 22, 2011 seizure of O'Hare and O'Hare's property because Thrasher was aware of Gorel's actions, they were in constant telephone contact, and Thrasher ratified Gorel's actions, affirmatively and by silence. 163. The Town's unwritten policy of planting in the right of way, through the Town Commission's 2004 discussion, caused Gorel to illegally search and seize O'Hare and his property without probable cause or reasonable suspicion of a violation of law. 164. O'Hare's harms are identical to those noted in Count XI I. COUNT XV Denial of Equal Protection under the Fourteenth Amendment 165. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs Ithrough 164. 166. Gorel, the Town, and Thrasher denied O'Hare equal protection when Gorel, under supervision of Thrasher, forced O'Hare to remove and transplant several trees, on November 21, 2011, under the Town custom of not allowing plants in the public right of way adjacent to O'Hare's property while allowing then Commissioner Anderson and other property owners to engage in the same behavior without action and, therefore, without a rational basis. 167. O'Hare suffered the same harms noted in Count XII. 28 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 29 of 36 COUNT XVI Denial of Due Process under the Fourteenth Amendment 168. Plaintiff re- alleges and re-avers each of the allegations set forth in the above Paragraphs I through 167. 169. On or about May 30, 2012, the Town denied O'Hare's appeal of Thrasher's decision denying O'Hare's property interest in a metal roof because the Commission, sitting as the Board of Adjustment, was suspicious of the veracity of Engineer Lunn's certification. The Town denied O'Hare's permit for a metal roof, a property interest he was lawfully entitled to under the Town Code because of concern of fraud, without giving O'Hare a hearing to present evidence to allay any factual concerns that the Board may have had with Engineer Lunn's certification. 170. In the alternative, the Board pre - textually denied O'Hare's appeal with spite, insidious, or retaliatory motive in violation of equal protection. 171. The Town also did not meaningfully notice O'Hare that his Board of Adjustment Appeals would concern the legal or factual issues surrounding the impact of an engineer's report under the Town Code. 172. The aforementioned Board actions causing O'Hare to live without a completed roof, hurricane insurance and to undergo costly appeals and suffer emotional distress, anxiety from the numerous severe storms (including hurricanes and tropical storms) that frequent South Florida, and a basic enjoyment of life. I'm Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 30 of 36 COUNT XVH Failure to Hire. Train & Supervise 173. Plaintiff re- alleges and re-avers each of the allegations set forth in the above Paragraphs I through 172. 174. The Town, to this date, still has no procedural guidelines for Code Enforcement officers despite, during the most recent final budget hearing on September 17, 2013, Commissioner Ganger's request for the town to adopt code enforcement training or hire an outside agency for training. To date, the commission failed to investigate code enforcement employee training. 175. The Town, acting with gross negligence, reckless disregard, and/or deliberate indifference to O'Hare's constitutional rights to property, liberty, speech, and equal protection under the Fourteenth Amendment of the Constitution, hired Thrasher, Ginsberg, Gorel, and Minor and failed to train same, or failed to supervise same, or failed to provide a standard code of conduct or procedural guide for same, and as a direct result Thrasher, Ginsberg, Gorel and Minor violated O'Hare's constitutional rights causing any and all harms in the aforementioned counts. 176. Thrasher, the chief executive policymaker for the Town, acting with deliberate indifference to constitutional rights, recklessly, trained, supervised, and/or hired Ginsberg and Gore] as the code enforcement officers, and Minor as the Town Planning Consultant, without the benefit of code enforcement guidelines. As a direct result, O'Hare has suffered deprivations of constitutional rights and all of the aforementioned harms in any and all of the aforementioned counts. W1 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 31 of 36 COUNT XVM Florida Negligent Hiring, Supervising. Trainine of Ginsberg, Corel, Minor and Thrasher 177. Plaintiff re-alleges and re-avers each of the allegations set forth in the above Paragraphs 1 through 176. 178. Under Florida Statute 768.28, the Town, as an employer, negligently hired, trained, or supervised Thrasher in code enforcement actions, including his failure to designate O'Hare's home as an "OtherNarious" style despite being so designated such under town Code 70 -215, which caused O'Hare to be refused for his hurricane -rated garage door permit causing embarrassment, frustration, and emotional distress and potential damage from a future storm. 179. The Town's failure to train Thrasher caused him to negligently interpret the law and for O'Hare to be denied a metal roof, despite O'Hare's clear and unambiguous entitlement for that vested property interest, after the submission of an engineer's certification, under the Town Code, causing O'Hare to live without a completed weather -proof roof, to live with a leaking roof, to live without the ability to get hurricane insurance for over a year, as well as embarrassment, frustration, and emotional distress. 180. Thrasher negligently interpreted Town Code 70 -32 "open front lawns" provision to carry the force of law, failed to recognize the tern as unconstitutionally vague before enforcement, failed to determine a definitive and published interpretation, and therefore lacked probable cause before enforcement. This caused O'Hare to undergo a hearing before Donlon, costing O'Hare legal fees, emotional distress, and frustration. 31 , P . Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 32 of 36 181. Under the same statute, Thrasher negligently trained or supervised Ginsberg in conducting code enforcement actions, and Minor as the Town Planning Consultant, which caused O'Hare emotional distress, harms to privacy, harms to dignity, embarrassment, and frustration. 182. Thrasher negligently trained or supervised Gore[ and Minor when Thrasher consulted with Gorel and Minor about plantings in the right of way after Gorel's seizure of O'Hare, and consulted with Minor about Town Planning issues against O'Hare, causing O'Hare emotional distress, embarrassment, frustration, and the pains of labor. 183. The Town was negligent in failing to exercise reasonable care to consider the plane language of their own code when it caused O'Hare to undergo a code enforcement hearing without a neutral decision maker after failing to appoint Donlon per the requirements of the Town Code, causing O'Hare legal fees, emotional distress, frustration, and the lost profits stemming from the inability to attend to his business. COUNT XIX Denial of Due Process 184. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 183. 185. Donlon denied O'Hare Due Process when she issued a vague order on April 2, 2013, demanding O'Hare open up his front lawn and to return it to its "preexisting condition" without specifying a particular date. Although O'Hare attempted to comply with the vague order, he was forced to remove a good portion of his plants at a cost of thousands of dollars or face $100 a day fine. 32 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 33 of 36 186. The Town of Gulf Stream denied O'Hare Due Process when they prosecuted him in a code enforcement hearing without a neutral magistrate due to the fact that Donlon was unlawfully appointed and not a legally recognized Magistrate, thereby acting in clear absence of any jurisdiction. 187. The Town denied O'Hare Due Process when it enforced a false Order issued by Dolan who was unlawfully appointed and not a legal Magistrate, thereby acting in clear absence of any jurisdiction and thus creating false documents under the color of authority, thereby forcing O'Hare to take remedial action on his property or be fined. 188. The Town denied O'Hare Due Process when his property, both real and monetary, was placed in jeopardy under the "open front lawns" portion of the code without notice that the "open front lawns" portion carried the force of law and because the Town enforced an unconstitutionally vague law. 189. The Town denied O'Hare Due Process when his property, both real and monetary, was placed in jeopardy by Donlon, based solely upon Thrasher's falsified evidence concerning the consistent enforcement of open front lawns and the "grand fathering" of other properties presented at the Code Enforcement Hearing because Thrasher and prosecutor John Randolph knew this evidence was false prior to the hearing or knew subsequent to the hearing, and failed to correct it, which caused Donlon to enter judgment against O'Hare and for O'Hare to spend over $5,000 to bring his front lawn into conformance with that order, as well as emotional distress, time, and the pains of labor. 33 P 1 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 34 of 36 COUNT XX Intentional Infliction of Emotional Distress 190. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs 1 through 189. 191. Thrasher and Minor intentionally misrepresented and misapplied code section 70 -150 to incorrectly read that some plants were prohibited when the code correctly simply reads that these same plants are "typically found" 192. On or about March 5, 2012, Ginsberg intentionally used his position as a police officer to intimidate O'Hare by staring him down and banging on his front door, harassing him while O'Hare unloaded a trailer in his driveway, causing O'Hare emotional distress and to fear for his safety. COUNT XXI Slander 193. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs I through 192. 194. On or about March 5, 2012, Ginsberg maliciously told Gundlach to be careful and not to do what O'Hare said, and that the "Town had O'Hare's number" — each false and defamatory statements — causing O'Hare to lose the confidence of his workers, negatively affecting his contractual relationship with them. 34 F Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 35 of 36 COUNT XXII Malicious Prosecution/Abuse of Process 195. Plaintiff re- alleges and re -avers each of the allegations set forth in the above Paragraphs I through 194. 196. The Town, Minor, and Thrasher, the chief executive policy enforcer for the Town, in furtherance of retaliation or based upon animus, investigated, instigated, and otherwise participated in the prosecution of O'Hare on or about November 5, 2012, under the misuse of the Town Code Sec. 58- 138(b), 70 -150, and 70 -146 without probable cause which were later dismissed by the April 2, 2013, order of Donlon, causing O'Hare to accrue legal fees and suffer emotional distress. Demand For Jury Trial Plaintiff demands a trial by jury on all issued so triable. WHEREFORE, Plaintiff demands judgment against Defendants in an amount within the jurisdictional limits of the court, to wit in excess of Fifteen Thousand Dollars ($15,000), plus attorneys' fees, costs, roof repairs, punitive damages wherever applicable, and any other reasonable determinations this honorable court deems just and proper. Plaintiff also demands any equitable remedies against Defendants, including Building Official for the City of Delray Beach, which is under an interlocal agreement with the Town of Gulf Stream to provide building inspection services for the Town but not limited to, rehearings wherever applicable, the imposition of procedural safeguards wherever 35 Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 Page 36 of 36 applicable for same, the imposition of federal oversight under the Fourteenth Amendment wherever applicable, and any other reasonable equitable or remedial actions this honorable court deems just and proper. I HEREBY CERTIFY that a true & correct copy was furnished, via electronic filing, on October 16, 2013. 36 ROBERTS. GERSHMAN, ESQUIRE 2160 W. Atlantic Avenue, 2d FL Delray Beach, FL 33445 (561) 684 -8898 (telephone) robert @rglawfirm.us s// Robert Gershman ROBERT S.GERSHMAN Florida Bar No. 917397 5617370188 Fax 04:08:11 p.m. 01 -16 -2014 1/B FAX Cover Sheet Marty Minor Urban Design Kilday Phone: Fax Phone: 366 -1111 Date: 1 -16 -14 Number of pages including cover sheet: 8 FROM: Rita Phone: 561 - 276 -5116 Fax Phone: 561- 737 -0188 ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP I have enclosed the latest windmill for O'Hare. This max. bldg. height. Also, are as high as the roof of Even tho they are not on a refusal ?? Please advise. to Follow by Mail: Yes CC: Fax Phone: permit application for a bigger one is 50' high, well beyond our this one has two solar panels that a house and they face the street. roof, does this help support a No 5617370188 Fax o. RECEIVED i 04:08:25 p.m. 01 -16 -2014 2/8 uuw�vuual j A N 1 b 2014 lJ AIIAr�i,Clry Elio OF OELRAY BEpEH i of Galfstream, FL zuel CITY OF DELRAY BEACH I REVISION REQUEST Date: I� r 7- I Permit Number: I — 1 3 6 ri (o g Address Where Work Is Being Done (to Include unit or bay number) 2520 la(1WVr AO 5,9L-9(t_ APPLICANTNAME: Ct IS OHP< O'er Phone: (361) Fax: ( ) 5-ab-oa!j5, Contact Person: 15W- Cell Phone #: ( ) Z7& -1177 S ADDED CONSTRUCTION COST FOR THIS CHANGE: $ IT EXPLAIN REVISION: Wiij I3 r MU - IAhM -rc)(W r- W O ITt%O To 5TApt.- -OJ QrHZ Pty t/8 L2 c Ai2P AOJlJ7W Yo 5,W e-' -roue 41 11 ryt-;�+ SLAB 104cKlllk NOTE 411- 1 FoJWDA-j70 + Rn)D Eru &i rJ l(A 1, 70 AE Peall )TTM NOTE: To avoid delay, the revision needs to be clear an the (2) drawings submitted. The Plan Reviewers may need the job site plans. I understand a fee IT fil be c rg i accordance with the City of Delray Beach LDR 2.4 -21. The fee for a revision Is $75.00 for tIIIIII� firs sneet,larld 11.0p for each additional revised sheet. For ADDED CONSTRUCTION COST, the fee will be ba a o B II Ing Pe it SIGNED: IIIlllllllll ROUTING: PATH DEPT,, APPROVED BYIDATE: OFFICE USE ONLY FEES: REVISION FEE: $ ADDED VALUE PERMIT FEE: OTHER FEES AS APPLICABLE: Parks: $ Public Bldgs. $ Schools $ Road $ Radon $ DPR $ Other $ PLAN REVIEWER: DATE: TOTAL FEES DUE: $ Rvsd 6/10 5617370188 • t W 0 c C ^Q .2 W v i 5617370188 Fax 04:09:00 p.m. 01 -16 -2014 418 Residential Wind Turbine -13 ft Blade Diameter WindancerTM 7c Small Wind Turbine System Technical Datasheet Wind Simplicity's WindancerTM patented horizontal -axis small wind turbine system gives greater energy independence by generating onsite renewable electricity that is safe and reliable. Cumulative power output at low wind speeds contributes to its efficiency over time. Cutting -edge technology maximizes electricity generation. Quality components down to the bolts are used throughout for durability and sustainability. Designed and manufactured in Canada. The WindancerTM is a small wind turbine system that includes the rotor, alternator, power electronics and the tower connector. 5617370188 Fax Specifications 04:10:49 p.m. 01 -16 -2014 5/8 Voltage and frequency 1101120Vac -60 Hz, or split -phase connector weight 206Va c- 60hz/220Vac -50hz Operating temperature - 30 to + 40 °C Peak rated capacity 6.6 kW RPM at peak rated capacity 350 rpm Power at half speed 2.7 kW Power start 20 rpm Alxion 3 -phase alternator 300STK4M brushless, permanent magnet, Overspeed protection direct -drive, radial -flux Wind turbine and tower 270 kg /595 Ibs connector weight Number of blades 6 Rotor diameter 400 cm /157 in Rotors at 45 degrees apart 2 Start-up speed (self- 1 m/s starting) Brake systen) electro- mechanical Overspeed protection Yes Wind Simplicity 110 Parkview Ave, North York, ON, M2N 3Y5, Canada 416.227.WIND (9463) Info@windsimpllcity.ca www.windsimplicity.ca M 5617370188 Fax 04:11:00 p.m. 01 -16 -2014 6/8 Important factlprs to consider using wind as an energy source for your house wind direction -- --- --- - ---- ----_- ....._ ............ 20 _._....... .... The tower must be 20 feet above any surrounding object, if It is not, then performance will be lower. "Siting a wind generator is extremely important to the performance of the machine. It is the difference between a machine that give you lots of energy and a garden sculpture. The ideal location for a wind turbine is 20 feet above_ any surrounding object within a 250 foot radius. Keep in mind that trees grow taller. Anticipate the full growth height of surrounding trees when calculating the optimum height for your wind generator. _P ON, zo n4 tt 5617370188 Fax 04:11:18 p.m. 01 -16 -2014 718 Photo Voltaic Panel Array with Automatic Solar Tracking Mount on Wind Turbine Tower 5617370188 Fax 04:12:14 p.m. 01 -16 -2014 8/8 Photo Voltaic Panel Arrpy Solar Technical Specifications Solar Panel Array .... ............................235 W PV panels, total of 6 panels Rated Capacity ......... ...........................1.41 kW - 476 W each Size, tracking module ..........................44' high x 24.1' diameter Weight, tracking module .....................125 lb Mount ................... ............................... High strength steel Operating Environment .......................All weather Temperature operating range... .......... -6 F to 149 F ( -21C to +65C) Controller power consumption ............ 0.982 Wh /day typical, Sleep Mode: 0.018 Wh /day, Active Made: 0.964 Wh/day Grid Feeding ...................... ..................Microlnverters (Included) Sun Tracking Microprocessor .............Based true position sun tracking. GPS enabled for automatic Initialization. Sun Tracking Range ... .........................Horizon to horizon User Monit oring ............ ........................Enphase Envoy monitoring system Survival Wind'Speed ...........................180 mph Warranty ................. ..............................5 year limited warranty Mounting ..................... ..........................Tower Mounting T 5617370188 Fax 10:42:02 a.m. 12 -23 -2013 1/20 F/'l/\ CoverSheet TO: rrarty Minor Urban Design Studios Phone: Fax Phone: 366 -1111 Date: December23, 2013 (Number of pages including cover sheet: 20 FROM: Rita Taylor Phone: 561 - 276 -5716 Fax Phone: 561- 737 -0188 REMARKS: ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP See attached Building Permit Application from O'Hare requesting to construct a Windmill in his back yard. Please review and discuss with Attny. Randolph. )riginals to Follow by Mail: Yes CC: Fax Phone: IRE 5617370188 Fax J. 10:42:13 a.m. 12 -23 -2013 2120 RECEIVED f)RIGY aUCll DEC 17 2013 OTT OF OELRRY BEILB Town of Gulfstream, FL 2UU7 CITY OF DELRAY BEACH REVISION REQUEST 11 Date: �IYL, 17 2o5 Permit Number. Address Where Work is Being Done (to Include unit or bay number): 2520 SuLVP ' APPLICANTNAME: C4R5TGl'f L D'I -If}I Phone:( )) 50-7551 I Fax: (5b) SS6 cSal5 Contact Person: Sfrrti Cell Phone #: (Sul ) 350 -75$) i ADDED CONSTRUCTION COST FOR THIS CHANGE: $ EXPLAIN REVISION: I111' A- 710 I.Ul N() (KIIA 2d4rc.L1A02Li-- — - - . __ _ 'A ".,N.ranr anin , N AtI� > c T�t� PaRno1�5 A556e)}'re0 L-ITU rI46 lu5rn+.LAviL ,a AP NOTE: To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the Job site plans. understand a fee may be charged In accordance with the City of Defray Beach LDR 2.4 -21. The fee for a revision is $75.00 for the first sheet, and $1.00 for each additional revised sheet. For ADDED CONSTRUCTION COST, the fee will be ba ed n �,e Building Permit Fees. SIGNED: ROUTING: PATH DEPT. APPROVED SYIDATF- PLAN REVIEWER: OFFICE USE ONLY FEES: REVISION FEE: ADDED VALUE PERMIT FEE: OTHER FEES AS APPLICABLE: Parks: $ Public Bldgs. $ Schools S Road $ Radon S DPRS Other S. TOTAL FEES DUE: Rvsd 6110 5617370188 0� N o. 0 W V i0 Q � OE Na N� J I� z —1 io W �LL J Q I z m j J rylyz z 2 Fax 10:42:31 a.m. 12 -23 -2013 .Id vJ yd 17bNdSb •bZ __'- _ -_�__ 1 0 h 3 „0 8 1NV&, 0.£'!S aalj le •o•ol oz •Gs I Noa1 CO 0IV/lod Ob41311a0 3(3aJNoJ 313 laa b S' Lo CL 3 aoNOO � tt b ,b !� N e Q I O II! 4i IS3 I � �i .s•si i � J U < W 3��NIS N I I L# I I Q ti`I PIE VI IM Mr NO a u n °z o 0 0) I I� or w H a r m « 9 C I N Oa i CV f 6 m 10 v .Z'SI I I I� O a vi N c a c r .`. u •6'ZZ ,. i� Z m a u o I I 17 1- w-•- ,a c 10 u i h w 3 3 S_ _ m a ¢ O J S E 0 Q 0 0 _ 0'SZ I I O I 1 N Z N ,00'92 L 3 „00,00.0oS 92 ion 00 Q J 3/20 r- I— Q J 5617370180 Fax 10:42:43 a.m. 12 -23 -2013 4120 Primus Wind Power AIR 40 12VDC Wind Turbine The Primus Wind Power AIR 40 model 1- AR40 -10 -12 wind generator is for land use only and designed to work in medium to high wind environments. The body is constructed of permanent mold cast aluminum and the three blades are made of carbon - molded composite. The generator can be used for multiple types of off grid power applications including telecommunications, security systems, cathodic protection, cabins and trailers. It can also be used in conjunction with a solar system to supplement battery charging. The AIR 40 will produce 40 kWh per month with an average wind speed of 13 miles per hour and requires a start up wind speed of 7 mph. It comes with a built -in microprocessor controlled charge controller and the option of using an external load diversion controller. It can also be used with the MidNite Solar Classic with a Clipper unit to maximize energy production. The wind generator cannot be connected directly to a power inverter. It must be used to charge a 12 volt battery bank: Your inverter will get its power from the batteries. Comes with a 5 year manufacturer's warranty. ' 5617370108 Fax 10:43: 13 a.m. 12 -23 -2013 5120 Technical Specifications .Energy Approx. 40 kWh /mo at 5.8 m/s (13 mph)1 Swept Area 1.07 m2 (11.5 ft2 ) Rotor Diameter 1.17 m (46 in) Weight 5.9 kg (13 lb) Shipping Dimensions 686 x 318 x 229 mm (27 x 12.5 x 9 in) 7.7 kg (17 lb) Startup'Wind Speed 3.1 m/s (7 mph) Voltage 12, 24 and 48 VDC Turbine Controller Mircoprocessor -based smart controller Body Permanent mold cast aluminum Blades (3) Injection - molded composite Alternator Permanent magnet brushless Overspeed Protection Electronic torque control Survival Wind Speed 49.2 m/s (110 mph) Mount2 1.5 in schedule 40 pipe 48 mm (1.9 in) outer diameter Wind Speed Operating Range 3.1 -22 m/s (7 -49 mph) Optimum Wind Speed Range 4.5 -22 m/s (10-49 mph) AIR 40 rv..n. c.n Yr.a.UO U.or. u.n.4.0 urm'.+,ev V.^+nai aµixpYm Primus Wind Power, Inc. 938 Quail Street Lakewood, CO 80215 Tel: (303) 242 -5820 5617370188 Fax 10:43:24 a.m. 12 -23 -2013 6/20 a `3 c c W. 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Rocha and Dwight Merriam, micp Planners are caught in the middle of a standoff between gun enthusiasts who value gun clubs and shooting ranges and others, particularly residential neighbors, who consider the clubs and ranges to be a nuisance, orworse, a risk to their safety. There is an important role for good planning and regulation here, one that can help all concerned find a middle ground that ends the cross fire. Many shooting ranges and gun clubs ei- ther predate zoning or were established as as- of -right uses. In some cases, residential uses crept up on a range or club over time, in what is sometimes characterized as "coming to the nuisance," creating a standoff between those who engage in shooting sports and neighbors who find the off -site impacts Intolerable. Zon. ing is rooted in nuisance avoidance, although we have lost sight of that today in the evolved world of transit - oriented development, new ur. banism, and form -based codes. We need only look back to the very first zoning case to make its way to the U.S. Supreme Court, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (Ggz6), to be reminded of that core principle of zoningwith justice George Sutherland's oft, quoted observation: "A nuisance may be mere. ly a right thing in the wrong place —like a pig in the parlor instead of the barnyard." Planning almost always works best when there is market failure, where natural forces do not efficiently and effectively allocate land use for the benefit of people today and generations not yet born. Zoning and similar land -use regulations earn their keep when they prevent nuisances. Good planning and regulation of shooting ranges and gun clubs can virtually immunize your community from conflict controversy. GUNS BLAZING More than 34 million Americans participate in target and sport shooting at shooting ranges and gun clubs across the country (Responsive Management zozo). Outdoor sport shooting Is an American tradition, and sporting ranges have existed in the United States for over a century. Shooting ranges provide a venue for games and training using rifles, pistols, and shotguns and various types of largets. Participants generally use rifles and pistols to shout at paper targets or at metallic silhouettes shaped like animals and shotguns to shoot at clay discs that are launched into the air to simulate bird targets (Cotter zoo3). In recent years, however, the traditional American shoot- ing range has undergone a dramatic transfer motion. As gun control measures continue to stir debate in America. business is booming For target and sport shooting facilities (Smith 2013). Some ranges have become more tort. munity minded and family focused, hosting blood drives, Toys for Tots collections, and "ladies' nights," where women can learn to shoot (Weeks 2013)• Other ranges have set their sights on unique (if not eyebrow - raising) ways to capitalize on the growing demand for target and sport shooting. One range in ZONINGPRACTICE n.13 A SICANPIANNINn MSMANN pa • Arizona offers a "Bullets and Burgers Experi- ence, "which Includes a scenic drive through the desert, shooting a .So caliber sniper rifle, blasting am, y with a M249 SAW machine gun, and eating a `warld famous cheeseburger." Las Vegas, home to the nation's loosest gun laws, now hosts six machine -gun shooting ranges and offers a variety of shooting packages, such as' the kid's package, the mob package, and a zombie apocalypse package (Hernandez zotz). Despite their popularity, shooting rages across the nation face sharp opposition due to safety, noise, and environmental concems. Many shooting ranges are no longer isolated in rural environments. As human populations move and expand Into the countryside, shoot. ing ranges have acquired new neighbors— many of whom find living near shooting ranges to be noisy and dangerous. Legal. regulatory, and public perception concerns are forcing range operators to take a proactive approach to minimize the potential for adverse impacts, The following sections provide an overview of the most common types of shooting ranges, the main Issues and concerns associated with shooting ranges, and planning and regulatory considerations for local governments. THE SHOOTING SCENE TODAY Shooting ranges may be public or private, In. door or outdoor. The range operators or owners appoint range masters to oversee the opera. tions and ensure that gun safety rules are fol- lowed. Range masters must complete a training process and become certified by the National Rifle Association (NRA). Currently. there are about 9,000 non- military outdoor ranges in the United States (Kardous and Afunah zoo). Outdoor ranges are built in large, open areas and require less cleaning and maintenance than indoor ranges. However, outdoor ranges also allow for lead and noise to disperse more widely. Outdoor ranges are specially designed to prevent bul. lets from escaping the range or ricocheting back at shooters. Many ranges are backed by sandbagged barriers, berms, and baffles, which help protect against Injury of people and damage to property. These banters also allow for systematic recovery of lead projectiles (Luke t996). Indoor shooting ranges typically include rifle and handgun ranges. Indoor ranges are popular because they of- fer protection from inclement weatherand can be operated under controlled environmental condi- tions. Environmental and occupational controls are necessary to protect the health or shooters and range personnel from effects of airbome lead and noise (Kardous and Afunall zotz). PLANNING CONSIDERATIONS AND BEST PRACTICES As a result of urban expansion into rural areas, same long - established gun clubs and shooting ranges are finding themselves increasingly clos- er to, if not abutting, residential neighborhoods. Careful planning and govern ment regulation can take certain steps to ensure that shooting ranges are good neighbors. Local governments that are Interested in regulating shooting rages should take a realistic approach to addressing noise, safety, and environmental Issues. Shooting Range Protection Statutes The most common complaint about shooting ranges is noise, and local governments often ZONINGPRACTICE ta.ty AMERKM PUNNING ASSnCU110N 1plye regulate the duration and amplitude of sounds emitted from a location. In an effort to protect shooting ranges from nuisance actions and clo- sure, many states have enacted statutes com- pletely barring noise- related nuisance causes of action against shooting ranges. Other states have exempted outdoor shooting ranges from local noise - control laws (Cotter 1999). A minority of states do not provide ab- solute immunity from legal action based on noise. For example, the Minnesota Shooting Range Protection Act (MSRPA) requires shoot. ing ranges to comply with state - established but do not address the actual siting of such facilities. The attorney general's plain- meaning Interpretation of the statute enables munici- palities to exert some control over zoning and land -use regulation of a proposed shooting range (McCollum 2008). The state of Ohio brought an action against shooting range operators to prevent them from using a portion of their land as a shooting range because of noise and stray bullets. Th e state alleged that the range ob. structed the reasonable use and enjoyment of neighboring properties. Despite overwhelming Escape Angle 90' or Greater a dented so that shooting Is away from sound - sensitive areas and residential neighborhoods (NRA 2o12). For Indoor ranges, there are various acoustical methods available to control and reduce the sound produced by gunfire. Ex- posed walls, overhead baffles, safety ceilings, and range Floors can be treated with special nolse- abatement materials and panels so that they absorb the reverberation of gunfire. By de- creasing noise levels within the gun range, the overall safety ofthe range Is Improved because members and employees are protected from Design "A" TTTTTTTT,�� ��� LS mlo 283 m Firing Una Cover (80 it to 200 yd) 4s° Escape Arpk Design "B„ /P. Q Evenly spaced overhead baffles prevent direct fire from exiting a shooting range. performance and safety standards In order to qualify for protection; however, local govern. ments can only close a range If it constitutes a "clear and Immediate safety hazard." The MSRPA establishes a noise standard of 63 decibels (natural background noise Is about 35 decibels) measured on the A- weighted fast response mode scale. This statute also creates a 75o -foot "mitigation area" from the perimeter of a shooting range's property onto adjoining Iands.The mitigation area is highly restricted and no changes or improvements can be made within the area without approval of the govem- ing body. Range operators are also required to pay for any mitigation devices required to keep the range in compliance with local ordinances and statutory performance standards (Remake) 2008). Where state and municipal regulations co- exist, preemption may become an Issue. Such an Issue was raised in Florida, when the attor- ney general released an advisory legal opinion stating that counties may Impose existing zon- ing and land -use regulations upon the siting of proposed sports shooting ranges but not any newly created or amended regulations. The provisions of the Florida statute are specific to the regulation of the use of firearms and am- munition at sport shooting and training ranges witness testimony regarding noise and bullets landing on or lodging in nearby propertles, the court held that so long as the range substan. tially complied with shooting range rules, the operators had statutory immunity from legal action (State ex rel. F7scherv. Hall, Court o(Ap- peals of Ohio, 6th Dist., Aug. 6, 2004). Site Planning and Operational Considerations Planners and local officials should refer to NRA guidelines when considering new regulations for shooting ranges. The NRA recommends a reasonable hours- of- operation schedule to minimize disruption of the surrounding com- munity. Specific suggestions Include delaying opening on weekend mornings, offering dis- counted rates during the least disruptive hours, limiting the use of louder firearms to predeter. mined times or by appointment, and holding special high -use events during cooler times of the year when fewer people are outdoors and less likely to be disturbed (NRA 2012). Planners and local officials should also consider natural topography when evaluating appropriate locations for new ranges. For ex- ample, valleys and forested hillsides are better at containing sound than hilltops and grassy or bare rocky hillsides, and sound tends to carry long distances aver water. Ranges should be Bens hearing loss. Moreover, these soundproofing measures Improve community relations be- cause less sound leaks from the building (NRA 2012). Safety concerns are the most publicized and most serious concerns regarding shooting ranges. Stray bullets that end up near homes present an obvious and major problem for gun ranges. These types of incidents receive a lot of media attention and result in severe limitations or closures for gun ranges. Aside from deaths caused by suicides or Intentional killings, deaths caused by stray bullets from shooting ranges are extremely rare (though not unprecedented). In 2010, a stray bullet from an unpernitted backyard range in Burlington, Vermont, his and killed a St. Michael's College professor. The shooter was convicted ofvolun- tary manslaughter and sentenced to two years In prison (Curran 2012). Home owners have successfully litigated against shooting ranges where they can show that the range's safety conditions are inad. equate. Home owners who lived about a half - mile from a rifle and pistol range in Scituate, Massachusetts, were able to close down and receive damages from the range after proving that four bullets that struck their homes in a five -year period came from the club. The court ZONINGPRACIIICE u.s3 WWWMWNIN6ASSa MNlpaprl held that the existing safety conditions at the club were not adequate to protect the home owners from an unreasonably high risk of in- jury due to escaping bullets (Norton v Scituate Rod & Gun Club, Inc, zolz WL z335z99 (Mass. Super. Apr. 12, zolz)). One gun club in Michigan recently un- veiled a new plan to improve safety after it closed for two years when stray bullets flew Into a nearby neighborhood and hit an outdoor worker. The gun club is seeking a special use permit, so it can build a baffle system with a "no -blue sky configuration." This configuration works like a series of window openings. Since the shooter can only see through the openings, he cannot shoot into the sky. This way, errant munds cannot escape the perimeters of the range (WZZM 13 2013). Planners and local officials should be aware of the available safety measures to ensure containment of bullets within a shoot- ing range. The most basic and most important safety considerations Include control of muzzle direction and direction of fire, prohibition of alcohol and drug use on the premises, coor- dination of fire and cease -fire when multiple shooters are practicing, and active supervision of minors. Structurally, shooting ranges should be equipped with adequate side berms and backstops In order to prevent stray bullets from escaping the range. It may be necessary to Install overhead baffles or guards to ensure that bullets cannot escape (NRA zolz). Environmental Considerations The primary environmental concern related to shooting ranges Is the potential for lead con. GI A filter bed that collects and filters stormwater runoff Is an example of a best management practice for limiting lead contamination at a shooting range. lamination. According to a study by the U.S. Environmental Protection Agency (EPA) from the late 199os, lead leaching from outdoor firing ranges was among the biggest sources of lead In the environment (EPA 2005). The funda- mental issue is that when it rains, lead on the ground dissolves and can run into nearbywater sources or penetrate the soil and contaminate groundwater. This problem Is exacerbated by the sheer size of shooting ranges. The wide dis- tribution of shot that occurs at outdoor shoot- Ing ranges results In a relatively large area of the range that can facilitate lead dissolving Into surface and groundwater (NSSF 1997). The EPA, the Centers for Disease Control and Prevention, and a large number of states have Identified human exposure to all forms of lead as a major health concern in the United States (EPA 2005). The EPA recommends a four -step ap- proach to lead management: (t) control and contain lead bullets and bullet fragments; (z) prevent migration of lead to the subsurface and surrounding surface water bodies; (3) removal and recycle of lead; and (q) document activities and keep records (EPA zoos). Local governments can require that a lead- management program be established that makes sense for the Individual range's charac- teristics. To best manage lead, many shooting range owners and environmental agencies recommend periodic lead recovery and recy- cling. Fmm a design standpoint, it makes most sense to position shooters or targets so that shot -fall areas overlap and concentrate the shot, therefore decreasing the area to be recov- ered. Range owners and operators should keep a record of the number of rounds shot annually so that lead recovery contractors can know the approximate amount of lead present. Recovery lead should not be stored or accumulated on the premises, but sent to a recycler as soon as possible. The most efficient and cost - effective approach Involves addressing the site - specific soil conditions. In some areas, adding lime or phosphate In order to balance out the pH level of the soil can help prevent solubility of lead In water. Adding layers of clay to the soil can act as barriers to control mobility of lead (NSSF 1997). Since the mid- lgeos, citizen groups have rallied against the Improper manage- ment of lead projectiles. These groups have brought several lawsuits against range owners and have urged federal and state agencies to take action against owners and operators of outdoor shooting ranges. Federal courts have supported claims that require range owners and operators to clean up lead- contaminated areas. However, courts have generally pro- tected ranges that have received approval from or follow practices suggested by environmental agencies (Slmsbury-Avon Preservation Society LLC etal. v. Metaron Club Inc., CO. Conn. June 14, zooq); Cardlano v. Metacon Gun Club, Inc., 575 Fad 199 (zd Clr. 2oo9); TSB Ltd. Inc. v. City 0/Chlca90, 369 F.Supp.zd 989 (N.D. Illinois, Eastern Division 2005)). In response to environmental concerns, many shooting ranges now use steel shot alternatives. Although more expensive and balllstically different than lead, steel is consid- ered the most viable alternative shot material available today for shotgun target shooting. These alternatives do not fragment and are Berm /Backstop 1. Vegetative Ground Cover \� \Runoff Direction / Sand Layer' Limestone/ Gravel Layer Perforated Pipe IIS fnN,Onmmtll PMe2lon Rrmry ZONINGPRACTICE M23 WERICFN PUNNING ASSDCIATIDN IP09C 5 far less toxic than lead bullets. The transition to steel alternatives dates back to tggl when federal wildlife authorities ordered steel pellets to replace lead birdshot in waterfowl hunting (Ravindran 2ot3). In 20t3, California lawmak- ers passed a bill banning lead from bullets in order to protect condors, whose main cause of death Is lead poisoning from ammunition and "gut piles" left behind by hunters who clean carcasses in the geld (Bernstein 2013). PLANNING HELPS Good planning Is often the key to ensuring that shooting ranges find locations that meet the demands of shooting sports enthusiasts while avoiding conflicts with other land uses. Plan- ners may benefit bygetting out ahead of poten- tial conflicts in making a preliminary assess. ment of what sites might be acceptable and what areas should be excluded from consider- ation. Even If planners do not take the Initiative to make preliminary site assessments, they will ultimately be required to react to development proposals. Site location is especially important when considering how to minimize adverse an. vironmental and noise Impacts. The technical process of selecting an outdoor shooting range site Involves screening a site's particular en. vironmental and engineering suitability. First, exclude clearly Inappropriate sites, like those that require shooting over or Into wetlands, wa- ter, and sensitive wildlife areas. Next, evaluate sites based on their environmental character. istics and consider soil type, topography, and drainage. Additional considerations Include distance to sound - sensitive areas and natural features that minimize sound. The result could be a map of potentially suitable sites. FROM PLANNING TO APPROVAL Local governments have choices when It comes to how much discretion to exercise in the land - use approval process for shooting ranges. There Is no constitutional right to have a place to shoot and thus no heightened scrutiny in any review as you might have with a First Amend- ment free speech or free exercise of religion land use. For shooting ranges, you have no greater burden than the usual rational relationship —as you might have fora or wash or funeral home. Because ranges involve a number of site -spe- cific issues and the potential for serious off -she impacts, few communities permit these uses as-of -right in any zoning district. More commonly, local governments permit shooting ranges as conditional uses (sometimes called a special exception or spe- cial permit use) in one or more zoning districts, requiring approval through a discretionary site - specific review. Th is approach is appropdate for a use that might be fine in one location In a zone but not on another site in the same zone (e.g., near a school or cluster of homes). Condi. tions and review criteria for shooting ranges may address minimum land area, site design, lighting, sound limits, testing, hours of opera- tions, and the like. Given that there are numerous technical aspects of design, as noted above, "pert testi. mony can be helpful in decision making. Some states allow [mat governments to require that applicants pay far the cost of expert review. Performance standards and periodic reports on operations may help prevent adverse off - site Impacts. Communities looking foradditional discretion in the approval process may con. sider adopting an overlay district with special development or performance standards for shooting ranges. This overlay may be mapped to specific areas of the jurisdiction at the time of Initial adoption, or it may be a floating over. lay, meaning it Is only mapped In coordination with local legislative body approval ofa rezon. Ing application fora particular parcel. Some communities exercise maximum discretion by requiring potential range own- ers or operators to apply fora base - district rezoningto a special or planned development district. For example, Fort Worth, Texas, uses this approach for shooting ranges 04- 305 -C.3). Requiring special or planned development district approval has a number of advantages for all concerned. Because this approach involves a legisla- tive map amendment, It is easier for the local government to defend Its decision. In most states the procedural due process require. ment for legislative actions Is less than that for an administrative action, such as a condi- tional use, or a quasi - judicial action, such as a variance. The applicant provides a conceptual site plan with the map amendment petition, which allows both the government and the neighbors to review and suggest modifications to the project. Because the extent of engineering and design for the conceptual site plan is quite limited, the applicant may be more willing to adjust the plan In order to secure approval. Once the conceptual site plan Is ready for approval and all or the modifications that are needed by the stakeholders have been Incorporated, the floating zone is approved to descend and apply to the site. At this point the applicant has a vested right in the map change and approved conceptual plan and can then finance the expensive final engineering and architectural design. In most cases, the details of the plan become the standards for that par- ticular special development district. Once a site has been approved, local planners need to consider what conditions might be placed on the approval to maintain the range so that It can peacefully exist within a community. The state or Florida recommends that range operators develop a community relations plan, which describes exactly how positive relationships with the surrounding neighborhoods and communities will be estab- lished and maintained (Florida DEP 2004). A key component of this plan should be a noise management plan that describes exactly how the impacts of sound and noise potential will be addressed and mitigated. Finally, planners and local officials may wish to require an environmental plan, which can help evaluate current lead deposits and address cleanup, containment, and recycling Issues (Cotter zoo3). The plan should delineate exactly what combination of practices will be ZONINGPRACTICE =.a3 AMERKAN PLANNINGASSGOAININPPpe 6 ZONINGPRACTICE 12.13 AMERICAN PLANNING ASSOCLAnON I P09C7 used to achieve optimal lead management. REFERENCES AND RESOURCES Soil erosion management and wildlife habitat • Berstein, Lenny. October 2013. "With a Ban on Lead In Hunters' Bullets, California Hopes to preservation should also be elements of the Protect Condors." Washington Post, October zo. Available at www.washingtonpost.com plan. Although there may be Initial increases in /national /health• science / with - ban -on- lead-in- hunters• bullets - califomia- hopes•to- protect- cost due to purchasing steel shot alternatives condors/2o13/10/2o/2e375388. 3829• tte3- ae46- e424Be75c8ea_story.html. and Investing in routine cleanup practices, • Connecticut General Assembly, 2010. "Shooting Range Safety Standards in Other States" OUR ranges will be avoiding the long -tens costs of Research Report. litigation and risk of closure. • Cotter, David G. 19gg. "Outdoor Sport Shooting Ranges: An Endangered Species Deserving of Protection" Thomas M. Cooley Law Review, 26:164 -200. REACHING THE RIGHT RESULT Shooting ranges can peacefully coexist in most • Cotter, David G. 2003. "Outdoor Sport Shooting Ranges Under the Environmental Gun -the communities, providing training and sporting Final Assault or Merely a Manageable Dilemma?" Thomas M. Cooley Law Review,20:453-459• opportunities for gun enthusiasts while elimi• • Curran. John. 2012. "Vt. Man Gets Jail in Profs Stray Bullet Death," Seattle Times, June to. Avail• nating virtually all adverse impacts. Planners able at http: / /seattletimes.com /html /nationwodd /2022084006 apuspmfessomshooting.htmi. who take the Initiative and plan for shooting • Hernandez, Daniel. 2022. "Vegas gun ranges target thrill - seeking tourists with ever bigger ranges and gun clubs, and arm themselves weapons." The Guardian, November 3o. Available at www.theguardian.com /mr(d /2012 with good regulations, can succeed in provid- / nov/ 3o/ las- vegas- machine•gun•shooting- ranges. Ing For such uses while protecting the public. • Kardous, Chucri A,. and Susan Afunah. 2o12. "Reducing Exposure to Lead and Noise at Out• Finally, discretionary review processes can door Firing Ranges." Workplace Solutions from the National Institute for Occupational Safety provide a forum for a dialogue that results in a and Health, DHHS (NIOSH) Publication No. 2013 -104. Available at www.cdc.gav /nlosh /docs consensus about proper facility design, opera. /WP- solutions /2013-104 /pdfs /2013- 104.pdf. tions, and environmental protections. • Luke, David. 1996. "Baffles, Berms and Backstops." Third National Shooting Range Sympo• slum, June 23 -25. Available at http: / /nssEorg /ranges /RangeResoumes /library/detail Cover image by Piotru .cfm ?filename - facility- mngmnt /design / baffles_ berms .htmBCAT - Facility%2oManagement. Creative COmIT101153.0; design concept • McCollum, Bill. zoos. "Advisory Legal Opinion -AGO 2008.34." Florida Office ofthe Attorney i by Lisa Barton. General, June 25. Available at vw .myfloridalegal.com /ago.nsf /Opinions /982884OC127FO39 485257473oo6CADD5. • National Rifle Association (NRA). 2otz. The Range Source Book. A Guide to Planning and Can- VOL. 3o, NO. 12 struction. Washington,D.C.; National Rifle Association. Available at http: / /rangeservices.nra Zoning Practice Is a monthly publication of the American Planning Association. Su6scdptions are .org /sourcebook.aspx. available for S95 (U.S.) and $12o (foreign). • National Shooting Sports Foundation (NSSF).1 997. Environmental Aspects o/Construction and W. Paul Farmer, Fun, Chief Executive Officer, David Rouse, urn, Managing Director of Research ManagementofOutdoorShooting Ranges.Availableatwww.dol.gov /greening /links /upload and Advisory Services. /EAofCMofOSR.PDF. Zoning Practice OSSN 1548 -0135) Is produced atAPA. Jim Schwab, ucP, and David Morley, AKP, • Ravindran, Sandeep. 2013. "Banning Lead Ammunition Could Give Condors a Chance," No. Editors; Julie Von Bergen, Assistant Editor; Lisa Nonal Geographic, October 14. Available at http : / /news.nationalgeogmphic.com /news /2013 Barton, Design and Production. /10/232o14 -lead- ammunition•ban•condor- califomia- science. Missing and damaged print issues: Contact Customer Service, American Planning • Remakel, John A. 2008. "A Minnesota Armistice? The Enactment and Implementation ofthe Association, 2o5 N. Michigan An., Suite Minnesota Shooting Range Protection Act" Hamline Law Review, 31: 197 -232. 12oo, Chicago, IL 6o6o1(312- 431.9100 or customerservice ®planning.org) within go days • Responsive Management. 2010. Sport Shooting Participation in the United States in 2oog. of the publication date. Include the name ofthe Conducted for the National Shooting Sports Foundation. Available at www.nssf.org /pdf publication, year, volume and Issue number or / research /ecerptnssF- shoting •participatio n , your dress, and membership number if applicable. • Smith, Kelly. 2013• "Growing Interest in Guns Crowds Gun Ranges" Star Tribune, July 20. Copyright 02013 by the American Planning Available at vA .startribune.COM /local / west /2i624572i.html. Association, 2o5 N. Michigan Ave., Suite 1200, Chicago, IL 6o6oi -5927• The American Planning • U.S. Envimnmental Protection Agency (U.S. EPA). 2oo5. Best Management Practices for Lead Association also has offices at 1030 15th St., NW, at Outdoor Shooting Ranges. Available atwww2.epa,gov /sites /production /files /documents Suite 75o West, Washington, DC 20005-15037 www,planning.org. /epa_bmp.pdf. All rights reserved. No part of this publication • Weeks, Linton. 2013. "Are Shooting Ranges the New Bawling Alleys ?" NPR, January 31. Avail• may he reproduced or utilized In any farm able at www .npcoB /zw3/ot/3t/17o391799/ are - shooting- ranges- the•new•bowling- alleys. or by any means, electronic or mechanical, including photocopying, recording, or by any • WZZM 13.2ot.3. "Gun Club Unveils Plans to Prevent Stray Bullets." October 7. Available at Information storage and retrieval system, without www.wzzml3. cam /news /regional /270087/5/ Gun - club- unveii5- plans•to• prevent •stray - bullets. permission In writing from the American Planning Association. Printed on recycled paper, Including 50-7o% recycled fiber and 1o% postconsumer waste. ZONINGPRACTICE 12.13 AMERICAN PLANNING ASSOCLAnON I P09C7 MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: February 12, 2014 RE: 2516 AVENUE AU SOLEIL - WINDMILL PERMIT APPLICATION -REVISED n k I da STUDIOS Urban Planning and Design Landscape Architecture Communication Graphics A permit application for a wind turbine generator at 2516 Avenue Au Soleil within the Place Au Soleil neighborhood has been submitted to the Town for its review. Request According to the submitted application materials, the proposed wind turbine is proposed to have an overall height of approximately 40 feet. The windmill is proposed to have 13 foot, 2 inch high vertical axis blades. The proposed wind turbine will be used to generate power for the home. The applicant has indicated that the tower will be a monopole design. The electrical equipment associated with the turbine will be located within the home's garage. The windmill is proposed to be located 35 feet from the adjacent single family lot to the west and 40 feet from the adjacent single family home to the south. The 0.30 lot with a residential home is located within the Place Au Soleil neighborhood. The site has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family - Place Au Soleil) zoning designation. Analysis The Town's Code of Ordinances does not address wind turbines or windmills. However, Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." The proposed wind turbine qualifies as an energy device based on a renewable resource. Although the Town's review is limited by state statutes, the Town may look at other issues such as height and setbacks. The following are planning issues raised by the referenced application for the wind turbine. These issues are: Tower Height and neighborhood character The proposed tower is considered an accessory structure within the single family residential zoning district. The Town's Code of Ordinances does not provide a specific height limit for accessory structures. H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil \2516 Avenue Au Soliel Windmill Application Memo 021214.doc 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com LCC35 Mr. William Thrasher 2516 Avenue Au Soleil Wind Turbine February 12, 2014 Page 2 Accessory structures in the Town have been limited to the permissible height of the primary structure for the lot, which would be the single family home. In the RS -P zoning district, roof heights are prohibited greater than 24 feet for single - family homes and 30 feet for two - story homes. The proposed 40 -foot height for the wind turbine is higher than any single family home or multi - family building west of State Road AlA is permitted to be built within the Town. The height of the proposed accessory structure is inconsistent with allowable heights within the neighborhood and the Town. As such, the proposed height of this use is incompatible with the character of the Place Au Soleil neighborhood. The character of the Town's five distinct single family neighborhoods is to be maintained and enhanced as required by the Town's Comprehensive Plan and, more specifically, the following Objective and Policies. Objective 1.1.6.: The Town of Gulf Stream and its single family neighborhoods have an undeniable character and sense of place that shall be preserved while recognizing a need to provide for infill development and substantial renovations to or outright replacement of existing obsolete homes. Policy 1.1.6.1.: To protect its unique character, the Town shall clearly define the character, provide clear direction to new development and redevelopment on how to achieve consistency with and enhance the character, and provide a rational, objective process for the review of new development and redevelopment. Policy 1.1.6.2.: The character of Gulf Stream is singular and multi— faceted in nature in that it is composed of at least five distinct neighborhoods, each with their own development history and sense of character, that together form the unique character of the Town. In order to preserve the character of the Town and neighborhoods, the character of each shall be thoroughly articulated with words and pictures in the Design Guidelines adopted by the Town so that the context by which new development and redevelopment is evaluated is clearly understood by the property owner, designer, neighbors, and Town review officials. Policy 1.1.6.3.: Without proper safe guards, there is a high potential that new development and redevelopment could conflict with and severely diminish the existing character of the Town and individual neighborhoods. While it is not necessary that the Future Land Use Map specifically delineate the various neighborhoods, it is Mr. William Thrasher 2516 Avenue Au Soleil Wind Turbine critical that land development regulations be crafted which recognize the unique characteristics of each. Policy 1.1.6.4.: The character of the Town and neighborhoods is a function of many development features which are defined in the Design Guidelines including, but not limited to: architectural style; building form; building mass; building scale; use of structural and decorative design elements; use building and finish materials; colors; arrangement of structures on a site; location of mechanical equipment, patios, driveways, walls, and fences; landscape design and materials; other such features; and the relationship of these features to one another on a site as well as their relationship to other sites. February 12, 2014 Page 3 In conformance with the above objective and policies, the Town created the Gulf Stream Design Manual, which established distinct zoning districts based on the Town's five single family neighborhoods, including Place Au Soleil. The characteristics of the Place Au Soleil zoning district is described in Section 70 -32 of the Design Manual. The section describes a single family neighborhood with one and two -story homes on small and medium -sized lots. In part, the section states, "the home and landscape features lend an informal, harmonious neighborhood feel to the district." The request for a 40 -foot high tower, which would be larger than any permitted primary structure in the neighborhood district, will not preserve or enhance the character of the neighborhood as required by the referenced Comprehensive Plan Object and Policies. Height and fall zone impact to neighborhood The proposed turbine is proposed to be located 40 feet from the rear lot line and 35 feet from the side lot lines. This location is a cause for concern as if the tower would fail, the tower could fall on the adjacent single family residential lots to the south or west. Typically, towers are setback a minimum of 110 percent of the tower's height to allow for a safe "fall zone" if the tower would fail. For example, the Town's Wireless Communication Tower regulations require this standard setback of 110% of the tower height from recreational properties and 130% of the tower from residential properties. Within the Place Au Soleil district, the rear setback for accessory structures is 15 feet and the site setback is 12 feet. The proposed wind turbine is located 40 feet from the rear property line and 35 feet from the side property line. However, the Town's setback standards did not anticipate structures considerably higher than what is permitted for primary structures within the district. The proposed location of the requested 40 -foot wind turbine could adversely impact adjacent properties. Mr. William Thrasher 2516 Avenue Au Soled Wind Turbine February 12, 2014 Page 4 Noise In the documentation the applicant has provided, the vertical axis windmill will generate 58 dB measured at a distance of 20 feet. The Town has noise abatement standards for generators as found in Section 22 -76. The applicant will need to provide documentation that the proposed wind turbine will comply with these standards. Recommendation For the reasons outlined in this memorandum, the requested 40 -foot high vertical axis wind turbine is not an appropriate accessory structure for the Place Au Soled neighborhood and is not consistent with the Town's Comprehensive Plan. As such, the application is recommended to be denied. 5617370188 Fax 03:20:37 p.m. 02 -06 -2014 117 Town of Gulf Stream Transmission Letter F" Cover Sheet To: Marty Minor U.D.S. Phone: Fax: (561)366 -1111 REMARKS: Date: February 6, 2014 Number of pages including cover sheet: 7 From: Bill Thrasher Town of Gulf Stream Phone: (561) 276 -5116 Fax: (561) 737 -0188 5617370188 Fax 03:20:45 p.m. 02 -06 -2014 2/7 RECEIVED (� 10D NW 1" Avenue • Delray Beach, FL 33444 _ MY BF SHAY BERQ FEB 5 2014 (561) 243 -7200 • Fax (561) 243 -7221 0 7n of Gulfs 1Cafil rl_ www.mydelraybeach.com BUILDING PERMIT APPLICATION Name &VV'S'rr!IF44NI SJLom- aey_DINbc, LL[. Address ZSZO A0F4U u, Ai) So LF.tL City 6111.f sTerArw State F/- Zip 33 Yg3 Home Phone (Al ) Z-7 6 - 9 27,5 Cell Phone ( 4-61 ) 350 -T SSI Fax No. ( 5TI ) Email Address PINL 7 D Cz o MIgL, CfJd l el0 - 4; - yb - ON - 22- -Lb0 - 0350 Address of Proposed Work Z5 /b AtlEN� Atl �alllL Legal Description Pi-f — ihl SDLFAL, I01-2S ❑ Check If Owner /Builder (See Page 3) Contractor License No. rr O Workers' Comp No. Zi4e!±1ap eA Company r� Bn2ya:y CotiiSV7,- F,�I.�TS Address 74 d;,W, L4, ( i City fFIFa.10 '-'State-f;;:- zip 32911 Phone 401.00-r{(ryrf Fax �(oG•(>fD •(o DrL f7 Cell 4'0775$ •7(6q Email •t�wr- Architect/Engineer's Name Address FOR PERMIT LUERITERS ONLY Uor permit pick -up): Contact Name Phone Ste or Apt # / Floor Cell Project Name (if applicable) - Fee Simple Title Holder (if tither than owner) Address Mortgage Lender State Bonding Company Address State Zip State Zip Description of the proposed work (New Construction, Addition, Interior /Extedor Alteration, Windows/Doors, etc.) NFc,J c0N 5n /CTia N ' Vmnr-& Ax, S WINO -i-yai N.E ON POL, Is this a City or Re -hab project? ❑ Yes [/No Is the building served with an automatic fire sprinkler system7 ❑ Yes E] No Current Use or Occupancy /izet'IOet, Tl ftL- Is this a change In the Use or Occupancy? ❑ Yes ,❑ No For Impact Fee Credit, Existing or Previous Structure Demolished? ❑ Yes ❑ No Type of Structure Demolished: ❑ SFR ❑ Commercial ❑ Commercial Accessory Building PLEASE CHOOSE ONE OF THE FOLLOWING: NEW CONSTRUCTION & ADDITIONS - FEE SCHEDULE V TOTAL COST OF CONSTRUCTION TO INCLUDE: STRUCTURAL, ROOFING, ELEC, MECH, PLBG NOTE: OTHER ASSOCIATED TRADES TO BE FEE'D SEPARATELY UNDER FEE SCHEDULE II OR III. THESE INCLUDE: LOW VOLTAGE, HOOD /SUPPRESSION SYSTEM, FIRE SPRINKLERS, IRRIGATION, LANDSCAPING, PAVING, ETC. MISCELLANEOUS PERMITS- FEE SCHEDULE II' ALTERATIONS & GENERAL CONSTRUCTION -SCHED. III• TOTAL COST OF CONSTRUCTION: $ 1 SPo COST OF CONSTRUCTION WITHOUT TRAD S. 101 /Ha NOTE: ALL SUB - TRADES TO BE FEED SEPARATELY. THESE INCLUDE ELEC, MECH, PLBG, ROOFING, LOW VOLTAGE, HOOD /SUPP SYSTEM, FIRE SPRINKLERS, IRRIGATION, LANDSCAPING, PAVING, ETC. 5617370188 Fax 03:21:12 p.m. 02 -06 -2014 3/7 VAWT Vertical Axis Wind Turbine 5617370188 Fax 03:21: 57 p.m. 02 -06 -2014 4/7 VAWT Rotor Dimensions Elevation Not to Scale Plan Not to scale 5617370188 Fax 03:22:06 p.m. 02 -06 -2014 5/7 Model Annual Power Output Cut -in Speed Swept Area Rotor Construction Rotor Dimensions Overall Height Type Generator Braking Weight Design Life Sound Emission Inverter VAWT Gale T5 Specifications By Tangarie Alternative Power LLC Gale'" T5 5785 kWh /yr (average wind speed of 7 m/s or 15.6 MPH) 4.25 MPH 97.09 square feet (9.02m2) High quality aircraft aluminum 158" h x 89" w (4.013m x 2.26m) 200" (5.08m) Vertical Axis — Savonius 5 kW Permanent Magnet Electronic with optional mechanical 2,882 Ibs 30 years 58 dB @20' Aurora PVI6000 5617370188 Fax 03:22:13 p.m. 02 -06 -2014 6/7 a 0 N G z O J 3Z �O ry ad n9 j R Ow 0 co w 1 Q } U p Lu .99'8l 0 &n N • j�� '� r W • O O V 0 2 srsi oe �z N I.- N7 H h in►z SBIZ =ti^ Ck N 2xNY m 1� u NC Q ifl �K G1'i�p � OO m 0 n` " 0 6 ii Qv I J yna�� ge Ki L _ anos tib 3nN3Ab rWe .0056• � — T— — � VS c -e '� � z CD s= a °- y L1 W � 5617370188 Fax (a-7a 1-A xmJ �nN1s�x� o- dl 03:22:32 p.m. 02 -06 -2014 1 Q Z 4= j 4- `V J F 2�5 cJ l 7/7 TA- I� IJ— v MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: March 31, 2014 ke L ki iac STUDIO Urban Planning and Design Landscape Architecture Communication Graphics RE: 2520 AVENUE AU SOLEIL -SOLAR SANDWICH ROOF SYSTEM APPEAL Preface You have forwarded to me the Application for the Appeal of Final Action by the Planning & Building Administrator (Appeal). The Appeal is of the Town's denial of a permit for a standing seam metal roof for the property located at 2520 Avenue Au Soleil. The Appeal was submitted by Chris O'Hare on February 5, 2014. Background The application which is the subject of the Appeal was submitted to me to evaluate whether it complied with the Town's Code of Ordinances (Code). On February 14, 1 authored a memorandum to you wherein I recommended that the application for metal roof be denied. Mr. O'Hare's application proposed a metal standing seam roof which incorporates a solar thermal energy - collection system. This system incorporates a dark blue photo voltaic film applied to a standing seam metal roof. The standing seam metal roof has affixed to it a solar thermal collector network which consists of thermal purlins and tubing which is used to generate power for the home. This system is commonly referred to as a "solar sandwich." Analysis Mr. O'Hare's property is a 0.44 acre lot with a residential home is located within the Place Au Soleil neighborhood. The lot has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family -Place Au Soleil) zoning designation assigned to it. The basis for the denial of the proposed standing seam metal roof with the incorporated solar thermal energy - collection system is that Section 70 -99 of the Code expressly prohibits "Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures). Section 70 -187. Table of district standards. prohibits metal roofs, unless an engineer can certified that the existing roof will not support a tile roof. 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com H:IJOBS1Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soleil Solar Sandwich Appeal Staff LCC35 Report.doc Mr. William Thrasher 2520 Avenue Au Soleil Solar Sandwich Roof System February 14, 2014 Page 2 The proposed roof system is manufactured by the Englert, Inc., a New Jersey metal roofing company. An Englert representative has informed the Town that "solar sandwich" roof system is not a certified roofing system under the Florida Building Code. The applicant will need to provide evidence that the proposed roofing system is compliant with the Florida Building Code prior to any consideration for the subject permit application. Florida Building Code The roof system which Mr. O'Hare proposed is manufactured by Englert, Inc., a New Jersey metal roofing company. According to David Handler, who is an architectural representative for Englert, Inc., the roof system is currently not permitted in Florida because this product has not been approved for use pursuant to the Florida Building Code. Conclusion The roof system proposed by Mr. O'Hare, which relies upon a standing seam metal roof is neither consistent with the Town Code, nor the Florida building Code. Sections 70 -99(3) and 70 -187 of the Town Code expressly prohibit standing seam metal roofs. Therefore, the plans for the proposed roof system could not have been approved by the Planning and Building Administrator. Moreover, had the plans been approved the Building Official could not have issued a building permit for it because it is not currently a permitted building product pursuant to the Florida Building Code. MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: October 16, 2012 RE: 2520 AVENUE AU SOLEIL - UNPERMITTED LANDSCAPING ANALYSIS ki iaill" STUDIO Urban Planning and Design Landscape Architecture Communication Graphics At the request of the Town, I have reviewed the recently - installed landscaping located at 2520 Avenue Au Soleil. The landscaping was reviewed for its conformance with the Code of Ordinances and, specifically, the Gulf Stream Design Manual. The Town's code of ordinances and Division 3 of the Gulf Stream Design Manual, in particular, place an emphasis on lot landscaping reflecting the character of the community and district. This requirement is exemplified in Section 70 -146 of the Town Code which states that one the primary objectives of the landscape standards is "reinforcing the community identity." Plant selection for new landscaping is also required to "reinforce the identity" of the applicable zoning district. The subject lot is located within the Place Au Soleil single family district, which is characterized as having "open front lawns (Section 70 -32 (a))." Landscaping within the district is described as: "Informal and naturalist plantings with open front lawns characterize the landscaping and general feel of the lots. Perimeter hedging is used along side property lines to maintain privacy, but is generally not used in the front. In keeping with its name as the 'place in the sun' most of the lots in the district feature swimming pools and patio decks in the rear yards. In the front yard, the open lawns are divided straight or circular driveways comprised of varying types of textured surfaces or asphalt (Section 70 -32 (b)(5))." The recently - installed landscaping at 2520 Avenue Au Soleil does not conform with the character of its district as described above. The lot landscaping has created a formal, vegetated wall along the front and side yards. This landscape design is in conflict with the defined character of the district and, as such, does not reinforce the identity of the district or community (Section 70 -146). The landscaping pallet used at 2520 Avenue Au Soleil appears to include some species listed within the appropriate or typical plants H: \JOBS \Gulf Stream-94-012N2520 Avenue Au Soleil \2520 Avenue Au Soliel landscaping memo -doc 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com LCC35 Mr. William Thrasher 2520 Avenue Au Soleil Landscaping October 16, 2012 Page 2 listed for the Town (Section 70 -150). However, there are several apparent species which are not listed within the code. The most prevalent of these non - listed species are the Lady Palms (Rhopis spp.), which bisects the lot's driveway and comprises much of the vegetated wall around the front yard. These small palms, which do not appear to meet the industry's Florida Number 1 quality standard, prefer shady areas and will most likely suffer from overexposure to sunlight. In summary, the landscape design at 2520 Avenue Au Soleil does not conform to the Town's general landscaping standards. The lack of an open front yard and informal plantings are inconsistent with the plantings and characteristics of the Place Au Soleil district. The plantings also include species which are not listed as "appropriate' or "typical" for Gulf Stream or Place Au Soleil. MEMORANDUM TO: William Thrasher Town Manager FROM DATE RE: Marty R.A. Minor, AICP November 7, 2012 2520 AVENUE AU SOLEIL - CONFIRMATION OF PROVIDED PHOTOS ki ia(4 STUDIO Urban Planning and Design Landscape Architecture Communication Graphics This memorandum is to confirm that the photographs provided to Town of Gulf Stream, Florida were taken by me, Marty R.A. Minor, AICP, of Urban Design Kilday Studios. The photos were shot on October 10, 2012 on Avenue Au Soled in front of 2520 Avenue Au Soleil between the times of 1:00 p.m. and 1:02 p.m. Should you have any additional questions regarding this matter, please feel free to contact me at any time. Sincerely, Marty R.A. Minor, AICP Senior Planner Urban Design Kilday Studios H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Solei1\2520 Avenue Au Soliel photo confirmation memo -doc 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com LCC35 MEMORANDUM TO: William Thrasher Town Manager FROM: DATE: RE: Marty R.A. Minor, AICP November 7, 2012 2520 AVENUE AU SOLEIL - CONFIRMATION OF PROVIDED PHOTOS 7,0 k I da STUDIOS Urban Planning and Design Landscape Architecture Communication Graphics This memorandum is to confirm that the photographs provided to Town of Gulf Stream, Florida were taken by me, Marty R.A. Minor, AICP, of Urban Design Kilday Studios. The photos were shot on October 10, 2012 on Avenue Au Soleil in front of 2520 Avenue Au Soleil between the times of 1:00 p.m. and 1:02 p.m. Should you have any additional questions regarding this matter, please feel free to contact me at any time. Sincerely, M I �ah a � �' Marty R.A. Minor, AICP Senior Planner Urban Design Kilday Studios H:U0BMGu11 Stream_94- 01212520 Avenue Au SoleR2520 Avenue Au Soliel photo confirmation memo..doc 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com LCC35 MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: February 14, 2014 RE: 2520 AVENUE AU SOLEIL - SOLAR SANDWICH ROOF SYSTEM APPLICATION urban design k� Ida Urban Planning and Design Landscape Architecture Communication Graphics A permit application for a "solar sandwich" solar thermal collection system to replace the existing roof at 2520 Avenue Au Soleil within the Place Au Soleil neighborhood has been submitted to the Town for its review. Request According to the submitted application materials, the proposed "solar sandwich" solar thermal collection system would replace the existing roof with a metal standing seam roof which incorporates the energy - collection system. With the proposed system, a dark blue photo voltaic film would be adhered to a standing seam metal roof. The metal roof is affixed upon a solar thermal collector network consisting of thermal purlins and tubing. The proposed solar sandwich roof system will be used to generate power for the home. The 0.44 lot with a residential home is located within the Place Au Soleil neighborhood. The site has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family - Place Au Soleil) zoning designation. Analysis The Town's Code of Ordinances addresses both metal roofs and solar panels. Section 70 -99. Roof design, slope and materials. of the Gulf Stream Design Manual expressly prohibits "Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures)" and "Solar panels on the streetside." Section 70 -187. Table of district standards. prohibits metal roofs, unless an engineer can certified that the existing roof will not support a tile roof. Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." Although the Town's review is limited by state statutes, the Town may look at other planning issues. The following are planning issues raised by the referenced application for the solar sandwich roof system. These issues are: 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com H: \JOBS \Gulf Stream _94- 01212520 Avenue Au Solei112520 Avenue Au Soliel Solar Sandwich Roof System LCC35 Memo 021414.doc Mr. William Thrasher February 14, 2014 2520 Avenue Au Soled Solar Sandwich Roof System Page 2 Conformance with Florida Building Code The proposed roof system is manufactured by the Englert, Inc., a New Jersey metal roofing company. An Englert representative has informed the Town that "solar sandwich" roof system is not a certified roofing system under the Florida Building Code. The applicant will need to provide evidence that the proposed roofing system is compliant with the Florida Building Code prior to any consideration for the subject permit application. Non - Conforming metal roof As stated above, the proposed roof system incorporates a dark blue photo voltaic film on top of a standing seam metal roof. The Town's Code of Ordinances expressly prohibits metal roofs within the Town within Section 70 -99 (3) and Section 70 -187. As such, metal roofs are not permitted under the Town's Code. Recommendation For the reasons outlined in this memorandum, the requested solar sandwich roof system is not consistent with the Town's Code of Ordinances. As such, the application is recommended to be denied. MEMORANDUM %d�iJl�l 1 TO: William Thrasher ki I dal Town Manager STUDIO S FROM: Marty R.A. Minor, AICP Urban Planning and Design Landscape Architecture DATE: January 7, 2014 Communication Graphics RE: 2520 AVENUE AU SOLEIL - WINDMILL PERMIT APPLICATION A permit application for a wind turbine generator at 2520 Avenue Au Soleil within the Place Au Soleil neighborhood and single family zoning district has been submitted to the Town for its review. According to the submitted application, the proposed wind turbine is proposed to have an overall height of 24 feet and will be located at the northwest corner of the lot. The body of the wind turbine will be constructed of mold cast aluminum and the three blades will be constructed of a carbon composite. The rotor diameter is 46 inches in length. The proposed wind turbine will be used to generate power for the home. The electrical equipment associated with the turbine will be located within the home's garage. The Town's Code of Ordinances does not address wind turbines or windmills. However, Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." The proposed wind turbine qualifies as an energy device based on a renewable resource. Although the Town's review is limited by state statutes, the Town may look at other issues such as height and setbacks. The requested 24 -foot height for the turbine equals the maximum preferred height for roof features on a one -story house and one foot less than the maximum preferred height for an antenna on a one -story home. The proposed turbine is proposed to be located 25 feet from the rear and side street property lines of the lot. This location is in compliance with the rear and side street setbacks for minor accessory structures within the Place Au Soleil single family zoning district. Recommendation Based on the information provided with the submitted application, it is recommended that the wind turbine be approved as a minor accessory structure at 2520 Avenue Au Soleil. 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudlos.com LCC35 H:\JO85 \Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soliel Windmill Application review.doc DRAFT MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: January 24, 2014 RE: 2520 AVENUE AU SOLEIL - WINDMILL PERMIT APPLICATION - REVISED 7,9 ki ia(q STUDIO Urban Planning and Design Landscape Architecture Communication Graphics A permit application for a wind turbine generator at 2520 Avenue Au Soleil within the Place Au Soleil neighborhood has been submitted to the Town for its review. This request is the second application for a windmill on this property during the two months. Request According to the submitted application materials, the proposed wind turbine is proposed to have an overall height of 50 feet, which is more than twice the height of the original application. The windmill is proposed to have 6 blades with a 13 -foot diameter. The proposed wind turbine will be used to generate power for the home. Two, 44" x 24" photo voltaic panels will be attached to the tower at approximately 15 feet from the ground. The applicant has not indicated whether the tower will be a monopole design or supported by guyed wires. The electrical equipment associated with the turbine will be located within the home's garage. The windmill is proposed to be located 25 feet from the adjacent single family lot to the west and the Avenue Au Soleil roadway to the north. The 0.44 lot, with a residential home and pool, is located within the Place Au Soleil neighborhood. The site has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family -Place Au Soleil) zoning designation. Analysis The Town's Code of Ordinances does not address wind turbines or windmills. However, Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." The proposed wind turbine qualifies as an energy device based on a renewable resource. Although the Town's review is limited by state statutes, the Town may look at other issues such as height and setbacks. 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Solei112520 Avenue Au Soliel Windmill Application Revised LCC35 012414.doc Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine January 24, 2014 Page 2 The following are planning issues raised by the referenced application for the wind turbine. These issues are: Tower Height and neighborhood character The proposed tower is considered an accessory structure within the single family residential zoning district. The Town's Code of Ordinances does not provide a specific height limit for accessory structures. Accessory structures in the Town have been limited to the permissible height of the primary structure for the lot, which would be the single family home. In the RS -P zoning district, roof heights are prohibited greater than 24 feet for single - family homes and 30 feet for two -story homes. The proposed 50 -foot height for the wind turbine is higher than any single family home or multi - family building is permitted to build within the Town. The height of the proposed accessory structure is inconsistent with allowable heights within the neighborhood and the Town. As such, the proposed height of this use is incompatible with the character of the Place Au Soleil neighborhood. The character of the Town's five distinct single family neighborhoods is to be maintained and enhanced as required by the Town's Comprehensive Plan and, more specifically, the following Objective and Policies. Objective 1.1.6.: The Town of Gulf Stream and its single family neighborhoods have an undeniable character and sense of place that shall be preserved while recognizing a need to provide for infill development and substantial renovations to or outright replacement of existing obsolete homes. Policy 1.1.6.1.: To protect its unique character, the Town shall clearly define the character, provide clear direction to new development and redevelopment on how to achieve consistency with and enhance the character, and provide a rational, objective process for the review of new development and redevelopment. Policy 1.1.6.2.: The character of Gulf Stream is singular and multi— faceted in nature in that it is composed of at least five distinct neighborhoods, each with their own development history and sense of character, that together form the unique character of the Town. In order to preserve the character of the Town and neighborhoods, the character of each shall be thoroughly articulated with words and pictures in the Design Guidelines adopted by the Town so that the context by which new development and redevelopment is evaluated is clearly understood by the property owner, designer, neighbors, and Town review officials. Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine Policy 1.1.6.3.: Without proper safe guards, there is a high potential that new development and redevelopment could conflict with and severely diminish the existing character of the Town and individual neighborhoods. While it is not necessary that the Future Land Use Map specifically delineate the various neighborhoods, it is critical that land development regulations be crafted which recognize the unique characteristics of each. Policy 1.1.6.4.: The character of the Town and neighborhoods is a function of many development features which are defined in the Design Guidelines including, but not limited to: architectural style; building form; building mass; building scale; use of structural and decorative design elements; use building and finish materials; colors; arrangement of structures on a site; location of mechanical equipment, patios, driveways, walls, and fences; landscape design and materials; other such features; and the relationship of these features to one another on a site as well as their relationship to other sites. January 24, 2014 Page 3 In conformance with the above objective and policies, the Town created the Gulf Stream Design Manual, which established distinct zoning districts based on the Town's five single family neighborhoods, including Place Au Soleil. The characteristics of the Place Au Soleil zoning district is described in Section 70 -32 of the Design Manual. The section describes a single family neighborhood with one and two -story homes on small and medium -sized lots. In part, the section states, "the home and landscape features lend an informal, harmonious neighborhood feel to the district." The request for a 50 -foot high tower, which would be larger than any permitted primary structure in the neighborhood district, will not preserve or enhance the character of the neighborhood as required by the referenced Comprehensive Plan Object and Policies. Height and fall zone impact to neighborhood The proposed turbine is proposed to be located 25 feet from the rear and side street lot lines. This location is a cause for concern as if the tower would fail, the tower could fall on the adjacent single family residential lot to the west or into the public street, Avenue Au Soleil, potentially impacting public safety. Typically, towers are setback a minimum of 110 percent of the tower's height to allow for a safe "fall zone" if the tower would fail. For example, the Town's Wireless Communication Tower regulations require this standard setback of 110% of the tower height from recreational properties and 130% of the tower from residential properties. Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine January 24, 2014 Page 4 Within the Place Au Soleil district, the rear setback for accessory structures is 15 feet and the site street setback is 17 feet. The proposed wind turbine is located 25 feet from the rear and side street property lines. However, the Town's setback standards did not anticipate structures considerably higher than what is permitted for primary structures within the district. The proposed location of the requested 50 -foot wind turbine could adversely impact adjacent properties and the public roadway. Noise The applicant has not provided any information regarding the noise generated by the requested windmill and associated machinery. The Town has noise abatement standards for generators as found in Section 22 -76. The applicant will need to provide documentation that the proposed wind turbine will comply with these standards. Recommendation For the reasons outlined in this memorandum, the requested 50 -foot high wind turbine is not an appropriate accessory structure for the Place Au Soleil neighborhood and is not consistent with the Town's Comprehensive Plan. As such, the application is recommended to be denied. DRAFT MEMORANDUM TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: January 24, 2014 RE: 2520 AVENUE AU SOLEIL - WINDMILL PERMIT APPLICATION -REVISED urban ki iac STUDIO Urban Planning and Design Landscape Architecture Communication Graphics A permit application for a wind turbine generator at 2520 Avenue Au Soleil within the Place Au Soleil neighborhood has been submitted to the Town for its review. This request is the second application for a windmill on this property during the past two months. Request According to the submitted application materials, the proposed wind turbine is proposed to have an overall height of 50 feet, which is more than twice the height of the original application. The windmill is proposed to have 6 blades with a 13 -foot diameter. The proposed wind turbine will be used to generate power for the home. Two, 44" x 24" photo voltaic panels will be attached to the tower at approximately 15 feet from the ground. The applicant has not indicated whether the tower will be a monopole design or supported by guyed wires. The electrical equipment associated with the turbine will be located within the home's garage. The windmill is proposed to be located 25 feet from the adjacent single family lot to the west and the Avenue Au Soleil roadway to the north. The 0.44 lot, with a residential home and pool, is located within the Place Au Soleil neighborhood. The site has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family -Place Au Soleil) zoning designation. Analysis The Town's Code of Ordinances does not address wind turbines or windmills. However, Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." The proposed wind turbine qualifies as an energy device based on a renewable resource. Although the Town's review is limited by state statutes, the Town may look at other issues such as height and setbacks. 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com H:IJOBS\Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Saliel Windmill Application Revised LCC35 012414.doc Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine January 24, 2014 Page 2 The following are planning issues raised by the referenced application for the wind turbine. These issues are: Tower Height and neighborhood character The proposed tower is considered an accessory structure within the single family residential zoning district. The Town's Code of Ordinances does not provide a specific height limit for accessory structures. Accessory structures in the Town have been limited to the permissible height of the primary structure for the lot, which would be the single family home. In the RS -P zoning district, roof heights are prohibited greater than 24 feet for single - family homes and 30 feet for two -story homes. The proposed 50 -foot height for the wind turbine is higher than any single family home or multi - family building is permitted to be buildt within the Town. The height of the proposed accessory structure is inconsistent with allowable heights within the neighborhood and the Town. As such, the proposed height of this use is incompatible with the character of the Place Au Soleil neighborhood. The character of the Town's five distinct single family neighborhoods is to be maintained and enhanced as required by the Town's Comprehensive Plan and, more specifically, the following Objective and Policies. Objective 1.1.6.: The Town of Gulf Stream and its single family neighborhoods have an undeniable character and sense of place that shall be preserved while recognizing a need to provide for infill development and substantial renovations to or outright replacement of existing obsolete homes. Policy 1.1.6.1.: To protect its unique character, the Town shall clearly define the character, provide clear direction to new development and redevelopment on how to achieve consistency with and enhance the character, and provide a rational, objective process for the review of new development and redevelopment. Policy 1.1.6.2.: The character of Gulf Stream is singular and multi— faceted in nature in that it is composed of at least five distinct neighborhoods, each with their own development history and sense of character, that together form the unique character of the Town. In order to preserve the character of the Town and neighborhoods, the character of each shall be thoroughly articulated with words and pictures in the Design Guidelines adopted by the Town so that the context by which new development and redevelopment is evaluated is clearly understood by the property owner, designer, neighbors, and Town review officials. Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine Policy 1.1.6.3.: Without proper safe guards, there is a high potential that new development and redevelopment could conflict with and severely diminish the existing character of the Town and individual neighborhoods. While it is not necessary that the Future Land Use Map specifically delineate the various neighborhoods, it is critical that land development regulations be crafted which recognize the unique characteristics of each. Policy 1.1.6.4.: The character of the Town and neighborhoods is a function of many development features which are defined in the Design Guidelines including, but not limited to: architectural style; building form; building mass; building scale; use of structural and decorative design elements; use building and finish materials; colors; arrangement of structures on a site; location of mechanical equipment, patios, driveways, walls, and fences; landscape design and materials; other such features; and the relationship of these features to one another on a site as well as their relationship to other sites. January 24, 2014 Page 3 In conformance with the above objective and policies, the Town created the Gulf Stream Design Manual, which established distinct zoning districts based on the Town's five single family neighborhoods, including Place Au Soleil. The characteristics of the Place Au Soleil zoning district is described in Section 70 -32 of the Design Manual. The section describes a single family neighborhood with one and two -story homes on small and medium -sized lots. In part, the section states, "the home and landscape features lend an informal, harmonious neighborhood feel to the district." The request for a 50 -foot high tower, which would be larger than any permitted primary structure in the neighborhood district, will not preserve or enhance the character of the neighborhood as required by the referenced Comprehensive Plan Object and Policies. Height and fall zone impact to neighborhood The proposed turbine is proposed to be located 25 feet from the rear and side street lot lines. This location is a cause for concern as if the tower would fail, the tower could fall on the adjacent single family residential lot to the west or into the public street, Avenue Au Soleil, potentially impacting public safety. Typically, towers are setback a minimum of 110 percent of the tower's height to allow for a safe "fall zone" if the tower would fail. For example, the Town's Wireless Communication Tower regulations require this standard setback of 110% of the tower height from recreational properties and 130% of the tower from residential properties. Mr. William Thrasher 2520 Avenue Au Soled Wind Turbine January 24, 2014 Page 4 Within the Place Au Soleil district, the rear setback for accessory structures is 15 feet and the site street setback is 17 feet. The proposed wind turbine is located 25 feet from the rear and side street property lines. However, the Town's setback standards did not anticipate structures considerably higher than what is permitted for primary structures within the district. The proposed location of the requested 50 -foot wind turbine could adversely impact adjacent properties and the public roadway. Noise The applicant has not provided any information regarding the noise generated by the requested windmill and associated machinery. The Town has noise abatement standards for generators as found in Section 22 -76. The applicant will need to provide documentation that the proposed wind turbine will comply with these standards. Recommendation For the reasons outlined in this memorandum, the requested 50 -foot high wind turbine is not an appropriate accessory structure for the Place Au Soled neighborhood and is not consistent with the Town's Comprehensive Plan. As such, the application is recommended to be denied. I►TA Ia►L [01CMe10 1111u1 TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: January 28, 2014 RE: 2520 AVENUE AU SOLEIL - WINDMILL PERMIT APPLICATION - REVISED urban design ki Ida d Urban Planning and Design Landscape Architecture Communication Graphics A permit application for a wind turbine generator at 2520 Avenue Au Soleil within the Place Au Soleil neighborhood has been submitted to the Town for its review. This request is the second application for a windmill on this property during the past two months. Request According to the submitted application materials, the proposed wind turbine is proposed to have an overall height of 50 feet, which is more than twice the height of the original application. The windmill is proposed to have 6 blades with a 13 -foot diameter. The proposed wind turbine will be used to generate power for the home. Two, 44" x 24" photo voltaic panels will be attached to the tower at approximately 15 feet from the ground. The applicant has not indicated whether the tower will be a monopole design or supported by guyed wires. The electrical equipment associated with the turbine will be located within the home's garage. The windmill is proposed to be located 25 feet from the adjacent single family lot to the west and the Avenue Au Soleil roadway to the north. The 0.44 lot, with a residential home and pool, is located within the Place Au Soleil neighborhood. The site has a SF (Single Family) Future Land Use designation and RS -P (Residential Single Family -Place Au Soleil) zoning designation. Analysis The Town's Code of Ordinances does not address wind turbines or windmills. However, Florida State Statute Section 163.04 forbids local governments from prohibiting the installation of "solar collectors, clotheslines, or other energy devices based on renewable resources." The proposed wind turbine qualifies as an energy device based on a renewable resource. Although the Town's review is limited by state statutes, the Town may look at other issues such as height and setbacks. The following are planning issues raised by the referenced application for the wind turbine. These issues are: 477 S. Rosemary Avenue Suite 225 - The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1100 561.366.1111 fax www.UDKstudios.com H:1JOB5 \Gulf Stream-94-012U520 Avenue Au Solei112520 Avenue Au Soliel Windmill Application Revised LCC35 012814.dac Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine January 28, 2014 Page 2 Tower Height and neighborhood character The proposed tower is considered an accessory structure within the single family residential zoning district. The Town's Code of Ordinances does not provide a specific height limit for accessory structures. Accessory structures in the Town have been limited to the permissible height of the primary structure for the lot, which would be the single family home. In the RS -P zoning district, roof heights are prohibited greater than 24 feet for single - family homes and 30 feet for two -story homes. The proposed 50 -foot height for the wind turbine is higher than any single family home or multi - family building is permitted to be built within the Town. The height of the proposed accessory structure is inconsistent with allowable heights within the neighborhood and the Town. As such, the proposed height of this use is incompatible with the character of the Place Au Soleil neighborhood. The character of the Town's five distinct single family neighborhoods is to be maintained and enhanced as required by the Town's Comprehensive Plan and, more specifically, the following Objective and Policies. Objective 1.1.6.: The Town of Gulf Stream and its single family neighborhoods have an undeniable character and sense of place that shall be preserved while recognizing a need to provide for infill development and substantial renovations to or outright replacement of existing obsolete homes. Policy 1.1.6.1.: To protect its unique character, the Town shall clearly define the character, provide clear direction to new development and redevelopment on how to achieve consistency with and enhance the character, and provide a rational, objective process for the review of new development and redevelopment. Policy 1.1.6.2.: The character of Gulf Stream is singular and multi— faceted in nature in that it is composed of at least five distinct neighborhoods, each with their own development history and sense of character, that together form the unique character of the Town. In order to preserve the character of the Town and neighborhoods, the character of each shall be thoroughly articulated with words and pictures in the Design Guidelines adopted by the Town so that the context by which new development and redevelopment is evaluated is clearly understood by the property owner, designer, neighbors, and Town review officials. Policy 1.1.6.3.: Without proper safe guards, there is a high potential that new development and redevelopment could conflict with and severely diminish the existing character of the Town and individual neighborhoods. Mr. William Thrasher 2520 Avenue Au Soleil Wind Turbine While it is not necessary that the Future Land Use Map specifically delineate the various neighborhoods, it is critical that land development regulations be crafted which recognize the unique characteristics of each. Policy 1.1.6.4.: The character of the Town and neighborhoods is a function of many development features which are defined in the Design Guidelines including, but not limited to: architectural style; building form; building mass; building scale; use of structural and decorative design elements; use building and finish materials; colors; arrangement of structures on a site; location of mechanical equipment, patios, driveways, walls, and fences; landscape design and materials; other such features; and the relationship of these features to one another on a site as well as their relationship to other sites. January 28, 2014 Page 3 In conformance with the above objective and policies, the Town created the Gulf Stream Design Manual, which established distinct zoning districts based on the Town's five single family neighborhoods, including Place Au Soleil. The characteristics of the Place Au Soleil zoning district is described in Section 70 -32 of the Design Manual. The section describes a single family neighborhood with one and two -story homes on small and medium -sized lots. In part, the section states, "the home and landscape features lend an informal, harmonious neighborhood feel to the district." The request for a 50 -foot high tower, which would be larger than any permitted primary structure in the neighborhood district, will not preserve or enhance the character of the neighborhood as required by the referenced Comprehensive Plan Object and Policies. Height and fall zone impact to neighborhood The proposed turbine is proposed to be located 25 feet from the rear and side street lot lines. This location is a cause for concern as if the tower would fail, the tower could fall on the adjacent single family residential lot to the west or into the public street, Avenue Au Soleil, potentially impacting public safety. Typically, towers are setback a minimum of 110 percent of the tower's height to allow for a safe "fall zone" if the tower would fail. For example, the Town's Wireless Communication Tower regulations require this standard setback of 110% of the tower height from recreational properties and 130% of the tower from residential properties. Within the Place Au Soleil district, the rear setback for accessory structures is 15 feet and the site street setback is 17 feet. The proposed wind turbine is located 25 feet from the rear and side street property lines. However, the Town's setback standards did not anticipate structures considerably higher than what is permitted for primary structures within the district. Mr. William Thrasher 2520 Avenue Au Soled Wind Turbine January 28, 2014 Page 4 The proposed location of the requested 50 -foot wind turbine could adversely impact adjacent properties and the public roadway. Noise The applicant has not provided any information regarding the noise generated by the requested windmill and associated machinery. The Town has noise abatement standards for generators as found in Section 22 -76. The applicant will need to provide documentation that the proposed wind turbine will comply with these standards. Recommendation For the reasons outlined in this memorandum, the requested 50 -foot high wind turbine is not an appropriate accessory structure for the Place Au Soleil neighborhood and is not consistent with the Town's Comprehensive Plan. As such, the application is recommended to be denied. \ � � \\ o � /\ 4\ .R / % \ m �) ( A ] \ \ n \ � $ � a l $ � k % � w \ \ � \ § k .Al k %it.m . $? / % \ m �) t & ] \ \ \ � $ o \ a l t o$ 2 { ' ] w \ § k �rG § ° �. 4 % \ / $ ~ 4 ¥%v£*v3me£ �2 @ § & e $ J @ e m m �) t & ] \ \ \ � $ o \ a l t o$ � } � 2 \ � - AVFNUL- A@sJ¥ / / / \ Q E eLOCI G \ k � ci o ® th K m. % % «y\ { � \ c N -x WALK § £ ! fit, NQ = D ROw ƒ. \k © k4� ®\ k \ \ § � f « % k$ k { & o #m rNC7eRw5AY � & � \�`/ § / 14 \ § * % § W # k ) w k b m � a fo mI ° ®0 \� The Town of Gulf Stream, Florida received complaints regarding recent landscape installation by the petitioner, Christopher O'Hare of 2520 Avenue Au Soleil in Gulf Stream, Florida, in September 2012. At the request of the Town Manager, I visited Mr. O'Hare's property and took photos on October 10, 2012. 1 wrote a memorandum to the Town Manager on October 16, 2012 highlighting where the installed landscaping conflicts with Town Code. The memorandum outlined that the landscaping installed was not from the preferred list of plans and did not conform to the "open front lawn" character of the neighborhood. On November 5, 2012, the Town issued a Notice of Violation to Mr. O'Hare regarding the landscaping installation. On March 21, 2013, a Special Magistrate hearing was held on this Code Enforcement complaint. On April 2, 2013, the Special Magistrate ruled that the installed landscaping did not meet the "open front lawn" character and that the petitioner needed to return the lot to its previously existing condition. Kelly Avery From: Mary Zepeda <zepeda @jambg.com> Sent: Friday, December 05, 2014 4:50 PM To: Marty Minor Cc: Mike Piper Subject: Chris O'Hare v. Town of Gulf Stream Attachments: O'Hare.Ltr. Minor. 12.4.14.pdf; Order.of.Transfer.pdf Follow Up Flag: Follow up Flag Status: Flagged Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 D.O.I.: August 2011 Case No.: 13 -cv- 81053 -KLR Our File No.: 640/33569 Dear Mr. Minor: Please see the attached correspondence from Michael Piper, Esq. Should you have any questions or you are unable to open the attached document, please do not hesitate to contact me directly. Thank you. Mary C. Zepeda, Assistant to Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Blvd., Suite 1000 Fort Lauderdale, FL 33304 (954) 463 -0100, Ext. 2910 Fax - (954) 463 -2444 Zepeda@iambq.com Mary C. Zepeda, Assistant to Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Blvd., Suite 1000 Fort Lauderdale, FL 33304 (954) 463 -0100, Ext. 2910 Fax - (954) 463 -2444 Zepeda@iambq.com 1 Confidentiality Notice: This communication is covered by the Electronic Communications Privacy Act, 18 U.S.C. 55 2510 -2521. It is legally privileged (including attachments) and is intended only for the use of the individual(s) or entity(ies) to which it is addressed. It may contain information that is confidential, proprietary, privileged, and /or exempt from disclosure under applicable law. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us so that we may take the appropriate action and avoid troubling you further. If you are not the intended recipient(s), please destroy this message, and any attachments, and notify the sender by return e-mail LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT, PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, PA. 2456 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO, P.A. SUITE 1000 ROBERTE. MURDOCH MICHAEL T. BURKE' FORT LAUDERDALE, FL 33304 MICHAEL R. PIPER HUDSON C. GILL, PA DAVID M. SCHWEIGER, PA JEFFREY L. HOCHMAN, P.A. CHRISTOPHER L. SMITH E BRUCE JOHNSON • (M)463-0100 Browaro CHRISTOPHER J. STEARNS. PA (305)845 -200D Dade (561)640.7448 WPB TELECOPIER (954) 4632444 RONALD P. ANSELMO •ec.uu artnnrnnn[ru4cumvcr BURL F. GEORGE December 4, 2014 Via electronic mail: Mminorna.udkstudios,com Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of federal district Judge Ryskamp's order of transfer of the above - captioned matter to federal district Judge Middlebrooks. Judge Ryskamp is intimately familiar with background of the case and he wrote a strongly worded order granting out initial motions to dismiss. I am disappointed that he is not keeping the case; however, the court's own local rules require that Judge Middlebrooks be assigned to it. As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael R. Piper For the Firm MRP /mcz Enclosure i AaWo 3 -cv- 81053 -DMM Document 68 Entered on FLSD Docket 11/20/2014 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: 13- CV- 81053- RYSKAMP/HOPKfNS CHRIS O'HARE, Plaintiff, V. TOWN OF GULF STREAM et al., Defendants. ORDER OF TRANSFER THIS CAUSE comes before the Court sua sponte. The above - styled case is a refiled action from the case styled O'Hare v. Town of Gulf Stream, Case No. 13-80432 - MIDDLEBROOKS/BRANNON. The prior matter was dismissed without prejudice pursuant to an agreed order on May 30, 2013, by Judge Donald M. Middlebrooks. Pursuant to Local Rule 3.9, it is hereby ORDERED AND ADJUDGED that this case is TRANSFERRED to the Honorable Donald M. Middlebrooks. DONE AND ORDERED in Chambers at West Palm Beach, Florida this /f day of November 2014. Z444ao<4 A006� (IfIENNETH L. RYSK IP UNITED STATES DISTRICT JUDGE ECEIVE NOV 2 0 2014 LY: .4 �*UIA:13 -cv- 81053 -DMM Document 68 Entered on FLSD Docket 11/20/2014 Page 2 of 2 After reviewing the Court file in the above - numbered case, the undersigned hereby accepts the transfer of said case. Accordingly, it is hereby ORDERED AND ADJUDGED that all pleadings hereinafter filed shall bear the case number 13- 81053- MIDDLEBROOKSBRANNON, thereby indicating the Judge to whom all pleadings should be routed or otherwise brought for attention. The foregoing transfer is herewith accepted this 2 2014. D6NALD M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE Kelly Avery From: Mary Zepeda <zepeda @jambg.com> Sent: Wednesday, January 28, 2015 11:56 AM To: Marty Minor Cc: Mike Piper; Johann Semexant Subject: Chris O'Hare v. Town of Gulf Stream Attachments: ohare.ltr.minor_0000.pdf; O'Hare. Order. 1.22.15.pdf Follow Up Flag: Follow up Flag Status: Flagged Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 D.O.I.: August 2011 Case No.: 13- cv- 81053 -KLR Our File No.: 640/33569 Dear Mr. Minor: Please see the attached correspondence from Michael Piper, Esq. Should you have any questions or you are unable to open the attached document, please do not hesitate to contact me directly. Thank you. Mary C. Zepeda, Assistant to Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Blvd., Suite 1000 Fort Lauderdale, FL 33304 telephone: (954) 463 -0100, Ext. 2910 facsimile: (954) 463 -2444 Zepeda @'ambg.com Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/22/2015 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 13 -cv- 81053- MIDDLEBROOKS CHRISTOPHER O'HARE, Plaintiff, V. TOWN OF GULF STREAM et al., Defendant. THIS CAUSE comes before the Court upon Plaintiffs Revised Unopposed Motion for Leave to File Second Amended Complaint (DE 70), filed on December 10, 2014. The Motion is unopposed. (DE 70 at 110). For reasons stated below, the Motion is granted. Under Rule 15(a)(1), a party may amend its pleading once as a matter of course within 21 days after serving it or 21 days after service of any responsive pleading or motion under Rule 12(b), (e), or (f). See Fed. R. Civ. P. 15. When a party can no longer amend its pleading as of right, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). A motion for leave to amend may appropriately be denied "(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). EGEIvE JAN 2 3 2M5 DYE -- Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/22/2015 Page 2 of 3 Here, the Complaint was filed on October 17, 2013, and Plaintiff cannot amend as of right. However, the Court finds good cause for granting Plaintiffs Motion. Plaintiff argues that in the Second Amended Complaint, he has "dropped some individual Defendants and has dropped or consolidated several causes of action." (DE 70 at $ 7). Further, "Plaintiff includes some recent factual developments that have arisen since the First Amended Complaint was filed." (Id.). Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. Plaintiff's Revised Unopposed Motion for Leave to File Second Amended Complaint (DE 70) is GRANTED. Plaintiff shall file the Second Amended Complaint by January 26, 2015. 2. Defendant Lara Donlon's Motion to Strike and Dismiss Amended Complaint (DE 38) is DENIED AS MOOT. 3. Defendant David Ginsberg's Motion to Strike and Dismiss Amended Complaint (DE 39) is DENIED AS MOOT. 4. Defendant Adam Gorel's Motion to Strike and Dismiss Amended Complaint (DE 41) is DENIED AS MOOT. 5. Defendant Town of Gulf Stream Commission's Motion to Dismiss Plaintiffs Amended Complaint With Prejudice (DE 42) is DENIED AS MOOT, 6. Defendant Marty Minor's Motion to Dismiss Amended Complaint (DE 43) is DENIED AS MOOT, 7. Defendant Steven Tobias' Motion to Dismiss (DE 44) is DENIED AS MOOT. 8. Defendant Town of Gulf Stream's Motion to Dismiss Amended Complaint (DE 45) is DENIED AS MOOT. 2 Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/22/2015 Page 3 of 3 9. Defendant William Thrasher's Motion to Strike and Dismiss Amended Complaint (DE 46) is DENIED AS MOOT. DONE AND ORDERED in Chambers in West Palm Beach, Florida on this _07—day of January, 2015. cc: Record of Counsel UNITED STATES DISTRICT JUDGE LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT, PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, PA. 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ MICHAEL T. BURKE SUITE 1000 ROBERT E. MURDOCH MELISSA BUTTON FORT LAUDERDALE, FL 33304 MICHAEL R. PIPER' HUDSON C. GILL, PA DAVID M. SCMWEIGER, PA JEFFREY HOCHMAN, PA CHRISTOPHER L. SMITH E. BRUCE JOHNSON' (954)483 -0100 Broware CHRISTOPHER J. STEARNS, PA. (305)945.2000 Dade (561)8404448 WPB AaTUFr. TELECOPIER (954) 463.2444 RONALD P. ANSELMO 'eaaloWTIRMCRUr LLINTW BURLF.GEORGE January 26, 2015 Via electronic mail: Mminor c(�i udkstudios.com Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of federal district Judge Middlebrooks's order granting Plaintiff's motion for leave to file a second amended complaint in the above - captioned matter. As Judge Middlebrooks's indicated in his order, the ruling moots the motion to dismiss that we previously filed on your behalf (as well as the motions we filed on behalf of the other Defendants, including the Town of Gulf Stream). As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael R. Piper MRP /mcz For the Firm Enclosure Kelly Avery From: Mary Zepeda <zepeda @jam bg.com> Sent: Wednesday, January 28, 2015 11:56 AM To: Marty Minor Cc: Mike Piper; Johann Semexant Subject: Chris O'Hare v. Town of Gulf Stream Attachments: ohare.ltr.minor_0000.pdf; O'Hare.Order.1.22.15.pdf Follow Up Flag: Follow up Flag Status: Flagged Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 D.O.I.: August 2011 Case No.: 13 -cv- 81053 -KLR Our File No.: 640/33569 Dear Mr. Minor: Please see the attached correspondence from Michael Piper, Esq. Should you have any questions or you are unable to open the attached document, please do not hesitate to contact me directly. Thank you. Mary C. Zepeda, Assistant to Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Blvd., Suite 1000 Fort Lauderdale, FL 33304 telephone: (954) 463 -0100, Ext. 2910 facsimile: (954) 463 -2444 Zepeda@jambq.com 1 Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/22/2015 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 13 -cv- 81053 - MIDDLEBROOKS CHRISTOPHER O'HARE, Plaintiff, V. TOWN OF GULF STREAM et al., Defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT THIS CAUSE comes before the Court upon Plaintiff's Revised Unopposed Motion for Leave to File Second Amended Complaint (DE 70), filed on December 10, 2014. The Motion is unopposed. (DE 70 at ¶ 10). For reasons stated below, the Motion is granted. Under Rule 15(a)(1), a party may amend its pleading once as a matter of course within 21 days after serving it or 21 days after service of any responsive pleading or motion under Rule 12(b), (e), or (f). See Fed. R. Civ. P. 15. When a party can no longer amend its pleading as of right, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). A motion for leave to amend may appropriately be denied "(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). EGEIvE JAN 2 3 2015 Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/22/2015 Page 2 of 3 Here, the Complaint was filed on October 17, 2013, and Plaintiff cannot amend as of right. However, the Court finds good cause for granting Plaintiff's Motion, Plaintiff argues that in the Second Amended Complaint, he has "dropped some individual Defendants and has dropped or consolidated several causes of action." (DE 70 at ¶ 7). Further, "Plaintiff includes some recent factual developments that have arisen since the First Amended Complaint was filed." (Id.). Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. Plaintiffs Revised Unopposed Motion for Leave to File Second Amended Complaint (DE 70) is GRANTED, Plaintiff shall file the Second Amended Complaint by January 26, 2015. 2. Defendant Lara Donlon's Motion to Strike and Dismiss Amended Complaint (DE 38) is DENIED AS MOOT. 3. Defendant David Ginsberg's Motion to Strike and Dismiss Amended Complaint (DE 39) is DENIED AS MOOT. 4. Defendant Adam Gorel's Motion to Strike and Dismiss Amended Complaint (DE 41) is DENIED AS MOOT. 5. Defendant Town of Gulf Stream Commission's Motion to Dismiss Plaintiffs Amended Complaint With Prejudice (DE 42) is DENIED AS MOOT. 6. Defendant Marty Minor's Motion to Dismiss Amended Complaint (DE 43) is DENIED AS MOOT. 7. Defendant Steven Tobias' Motion to Dismiss (DE 44) is DENIED AS MOOT. 8. Defendant Town of Gulf Stream's Motion to Dismiss Amended Complaint (DE 45) is DENIED AS MOOT. 2 Case 9:13 -cv- 81053 -DMM Document 71 Entered on FLSD Docket 01/2212015 Page 3 of 3 9, Defendant William Thrasher's Motion to Strike and Dismiss Amended Complaint (DE 46) is DENIED AS MOOT. DONE AND ORDERED in Chambers in West Palm Beach, Florida on this JZZslay of January, 2015. cc: Record of Counsel 3 UNITED STATES DISTRICT JUDGE LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT, PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, PA 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ MICHAEL T. BURKE SUITE 1000 ROBERT E. MUROOCH MELISSA BUTTON FORT LAUDERDALE. FL 33304 MICHAEL R. PIPER' HUDSON C. GILL, PA DAVID M. SCHWEIGER. PA. JEFFREY L. HOCHMAN, PA CHRISTOPHER L SMITH E. SRUCEJOHNSON' (954) 463 -0100 Bmware CHRISTOPHER J. STEARNS, PA. (305) 945 -2000 Dade (561)640.7448 WPB AtrucI: TELECOPIER (954) 4632444 RONALD P. ANSELMO 'ea. Mnna MLT LLMTe BURL F. GEORGE January 26, 2015 Via electronic mail: Mminor@udkstudios.com Marty Minor Mminor@udkstudios.com Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of federal district Judge Middlebrooks's order granting Plaintiffs motion for leave to file a second amended complaint in the above - captioned matter. As Judge Middlebrooks's indicated in his order, the ruling moots the motion to dismiss that we previously filed on your behalf (as well as the motions we filed on behalf of the other Defendants, including the Town of Gulf Stream). As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael R. Piper MRP /mcz For the Firm Enclosure Kelly Avery From: Tara Williams <williams @jambg.com> Sent: Monday, April 07, 2014 11:52 AM To: Marty Minor Cc: Kathleen Simpson Subject: Fwd: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Attachments: OHare.Minor.Ltr.Ps'RespMTD.PDF; OHare.Minor.Ltr.Ps'RespMTD.PDF ---- - - - - -- Forwarded message ---- - - - - -- From: Tara Williams <williams(d)iambg.com> Date: Fri, Apr 4, 2014 at 2:51 PM Subject: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 To: Mminor(crudkstudios.com Cc: Mike Piper <piperQambg.com >, Chris Stearns <steams( iambs.com> Dear Mr. Minor: Please see the attached correspondence and enclosure from Michael Piper, Esq. Should you have any questions or you are unable to open the attached documents, please do not hesitate to contact me directly. Thank you. Tara Williams, Legal Assistant to: Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper, & Hochman, P.A. 2455 E. Sunrise Blvd., Suite i000 Fort Lauderdale, FL 33304 Tel: (954) 463 -oioo Ext: 2910 Email: williamsCrpjambg.com Tara Williams, Legal Assistant to: Michael R. Piper, Esq. Johnson, Anselmo, Murdoch, Burke, Piper, & Hochman, P.A. 2455 E. Sunrise Blvd., Suite l000 Fort Lauderdale, FL 33304 Tel: (954) 463 -010o Ext: 2910 Email: williams(@jambg.com LAW OFFICES JOHNSON, ANSELMO, MURDOCII, BURKE, PIPER & HOCIIMAN, P.A. A PROFESSIONAL. ASSOCIATION DAMIAN H. ALBERT, PA. W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, PA. 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO, P.A. SURE 7008 ROBERT E. MURDOCH MICHAEL T. SURKE • FORT LAUDERDALE, FL 37704 MICHAEL R. PIPER HUDSON C. GILL, PA. DAVID M. SCHWEIGER, P.A. JEFFREY L. HOCHMAN. PA CHRISTOPHER L. SMITH E. BRUCE JOHNSON (954) 46301DD Bro rd CHRISTOPHER J. STEARNS. PA. (305) 945.2000 Dade (567)540 -744B WPS RFTniID. TELECOPIER (954) 4632444 RONALD P. ANSELMO •naaRUCrwnnRn cnu rwntuaTn�s BURL F. GEORGE April 4, 2014 Via electronic mail Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of Plaintiff's response in opposition to the motion to dismiss that we previously filed on your behalf in the above - captioned matter. We are preparing a reply and will copy you with same upon receipt. As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael . Piper For the Firm MRP /taw Enclosure Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04102/2014 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:13 -cv- 81053 -KLR CHRIS O'HARE Plaintiff, VS. TOWN OF GULF STREAM et. al. Defendants. The Plaintiff CHRIS O'HARE by and through his undersigned attorneys, and pursuant to the Federal Rules of Civil Procedure and this Court's Local Rules, asks this Court to deny the Motion to Dismiss filed by the Defendant MARTY MINOR and as grounds states: 1. This action involves an individual suing a local government municipality and various individual municipal officials for numerous interrelated incidents where the municipality violated his constitutional rights and other wrongdoings. 2. Plaintiff filed his Complaint on October 17, 2013 and the each of the named Defendants filed motions to dismiss. Thereafter, Plaintiff's counsel withdrew and new counsel was obtained. Plaintiff filed an amended Complaint that corrected some of the non - substantive issues raised by the Defendants and included additional Counts that had arisen subsequent to the original filing of the Complaint. Although each Defendant again files separate motions to dismiss directed to Plaintiff's First Amended Complaint, they each raise substantially the same arguments and the same issues. 3. A review of the First Amended Complaint shows that each issue raised by the Defendants are without merit under the standard governing a Motion to Dismiss at this stage. The Plaintiff alleges very detailed factual allegations which defeat the claims of insufficiency. 4. In considering a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. I of5 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 2 of 5 2197, 2200, 167 L. Ed. 2d 1081 (2007). Moreover, the Court must limit its consideration to the complaint and the written instruments attached to it as exhibits. See Fed.R.Civ.P. 12(d). moo, G5W. Inc v. Long County, Ga., 999 R2d 1508, 1510 (11th Cir, 1993). To withstand a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "When there are well - pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Cooper v. City of Starke, 201I U.S. Dist. LEXIS 30148, 4 -5 (M.D. Fla. Feb. 9, 2011) chine Ashcroft v. Ieba1, 129 S.Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). 5. A Memorandum of Law is attached hereto which addresses each of the issues raised by the Defendant MARTY MINOR. 6. If this Court is inclined to grant any relief requested by the Defendants, Plaintiff asks for twenty (20) days to file an amended complaint to correct or supplement any deficiencies where applicable. WHEREFORE, Plaintiff, CHRIS O'HARE, requests this Court deny the Defendant MARTY MINOR's Motion to Dismiss and require the Defendants to file the appropriate answer, and for such further relief as the Court deems just and proper. If this Court is inclined to grant any of the alleged defects raised by the Defendants, Plaintiff asks that this Court grant him twenty (20) day to amend his Complaint. F.MORANDUM OF TAW IN RESPONSE. TO T A. Dismissal of Plaintiff's Common Law Claims Because Immunity Defendant MARTY MINOR is not entitled to dismissal of the common law claims against him based upon sovereign immunity. Some of the claims being attacked are not subject to immunity. Furthermore, Marty Minor was not a public official. He is a independent contractor consultant. Nevertheless, sovereign immunity is an affirmative defense that mayjustify a motion to dismiss only Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 3 of 5 when the complaint itself conclusively establishes its applicability. Sierra v. Associated Marine institute 850 2d 582 (2nd DCA 2003). The Plaintiffs have made detailed allegations against the Town and the individual Defendant MARTY MINOR. Plaintiff has plead his claim against the Defendant Town and the Defendant MARTY MINOR in the alternative. The individual Defendant seeks immunity because he claims the Town is liable for their actions as alleged herein. In its Motion to Dismiss, the Defendant Town, likewise, seeks to have the case dismissed for a claim of immunity. At this juncture, neither is entitled to this relief. Taken in a light most favorable and presuming the allegation are true at this procedural juncture the Motion to Dismiss on this ground should be denied. Federal Rule of Civil Procedure 8(e)(2) provides that "a party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds." Therefore, even if Plaintiff may not ultimately recovered duplicative damages, Plaintiffs may state multiple, alternative grounds for relief. Imo,; Sioux Biochemical. Inc. v. Cargill. Inc.. 410 F. Supp. 2d 785, 801 -02 (N.D. Iowa 2005). Although not clearly raised in his motion, the Defendant MARTY MINOR is not entitled to immunity under Federal Law. Under section 1983, Title 42, United States Code, government officials (including town managers, special magistrates, building inspectors, code enforcement officers, consultants, agents, law enforcement officers) may be sued for money damages where it is claimed that their official actions violated a plaintiffs constitutional rights under color of authority. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan. 555 U.S. 223 (2009). The Supreme Court in Saucier Y. Katz 533 U.S. 194 (2001) established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. The Supreme Court held that qualified immunity analysis must proceed in two steps. First, a court must ask whether "the facts alleged show the officer's conduct violated a constitutional right." Second, if a constitutional right was violated, the court then would go on to determine whether the constitutional right was "clearly established." The Court subsequently in 2009 overruled Saucier in Pearson v. Callahan. holding that the two -step procedure 3 of5 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 4 of 5 was no longer mandatory and modified the two -step immunity analysis to make its application less restrictive. Where Saucier required courts to confront the first prong of the analysis before moving on to the second, Pearson says "the Saucier protocol should not be regarded as mandatory in all cases." A government agent's liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with "malice," but on whether a hypothetical reasonable person in the defendant's position would have known that his/her actions violated clearly established law. The general rule underlying qualified immunity provides officials and agents such Marry Minor with the ability "reasonably to anticipate when their conduct may give rise to liability for damages." Anderson v. Creighton, 483 U.S. 635, 646 (1987); Morgan v. Swanson, 659 F.3d 359, 370 (5th Cit. 2011) ( "The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal. "). But the immunity will not protect those whose conduct violates well - established constitutional rights of which a reasonable person should be aware. A seizure of property, for Fourth Amendment purposes, happens when there is any "meaningful interference" with the owner's "possessory interests in that properly." Property is protected against such seizures being carried out unreasonably even when no privacy or liberty is involved, and even when no "search" has been carried out Soldal Y. Cook County, Illinois, 506 U.S. 56 (1992) Marty Minor provided advice and information to the Town which directly interfered with the Plaintiff's possessory interest in his property. Each of the Defendants claim that they are immune from suit for their direct actions in this case. In each instance, the Plaintiff sets forth in his complaint how the Defendant's conduct makes them liable for the illegal search and seizure of the Plaintiff's home and property. As set forth in the Complaint, the Plaintiff clearly shows that each Defendant violated a clearly established right. The complaint also includes other instances where each individual Defendant violated an established right. As the discussion above demonstrates, the cases that prohibit warrantless government searches and seizures are by no means new to the Supreme Court, our circuit, or other circuits. 4 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 5 of 5 AVM 1 u u < When considering a Motion to Dismiss, the Court must accept all of the Plaintiffs allegations as true." D P ex rel. E.P. v School Board of Broward County, FL, 360 F. Supp. 2d 1294, 1296 (S,D. Fla. 2005). A Complaint should only be dismissed if the Plaintiff can prove no set of facts which state a cause of action. _Id. If the Court has any doubt, it must deny the Motion. U The amended complaint adequately sets forth the required ultimate facts that meet all the elements for his claims of Malicious Prosecution and therefore the Defendants motion to dismiss must be denied. I HEREBY CERTIFY that on April 2, 2014, I electronically filed the foregoing document with the Clerk of Court by using the CM /ECF system, I further certify that I either mailed the foregoing document and the Notice of Electronic Filing by first class mail to any non CM/ECF participants and/or the foregoing document was served via transmission of Notice of Electronic Filing generated by CM/ECF to any and all active CM /ECF participants. Michael R. Piper, and Christopher J. Stearns JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 Telephone.: (954) 463 -0100 piper @jambg.com steams @jambg.com Dated: April 2, 2014 5of5 GMMIMADISON P.A. 401 South County Road #3272 Palm Beach, PL 33480 -9991 Tel: 561- 223 -9990 /s/ Mark J. Hanna Mark J. Hanna Florida Bar No. 0045251 561- 723 -8284 (cell & text) mhanna @g3mlaw.com Attorney for Plaintiff Jonathan O'Boyle, Esq, Jonathan R. O'Boyle, P.C. 2146 E. Huntingdon St. Philadelphia, PA 19125 Tel: 561- 758 -1223 Fax: 215-893-3641 jroboyle@jrolaw.com Pennsylvania Bar No. 314500 Attorney for Plaintiff LAW OFFICES JOHNSON, ANSELMO, MURDOCII, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT, PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, PA. 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO. PA SURE 1000 FORT LAUDERDALE, FL 33304 ROBERT E. MURDOCH MICHAEL T. BURKE • PIPER HUDSON C. GILL, PA. DAVID M. SCHWEIGER, P.A. JEFFREY L. HOCHMAN, PA CHRISTOPHER L. SMITH E. BRUCE JOHNSON (954) 463.0100 B a r0 CHRISTOPHER J. STEARNS. P.A. (305) 8452000 Dade (5611840 -7448 WPS AC1)RFL TELECOPIER (8541483 -2444 RONALD P. ANSELMO 'Ima4PCrAnrrEOrnacnuuuxnxs BURL F. GEORGE April 4, 2014 Via electronic mail Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of Plaintiffs response in opposition to the motion to dismiss that we previously filed on your behalf in the above - captioned matter. We are preparing a reply and will copy you with same upon receipt. As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael Piper For the Firm MRP /taw Enclosure Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:13 -cv- 81053 -KLR CHRIS O'HARE Plaintiff, VS. TOWN OF GULF STREAM et. al. Defendants. The Plaintiff CHRIS O'HARE by and through his undersigned attorneys, and pursuant to the Federal Rules of Civil Procedure and this Court's Local Rules, asks this Court to deny the Motion to Dismiss filed by the Defendant MARTY MINOR and as grounds states: This action involves an individual suing a local government municipality and various individual municipal officials for numerous interrelated incidents where the municipality violated his constitutional rights and other wrongdoings. 2. Plaintiff filed his Complaint on October 17, 2013 and the each of the named Defendants filed motions to dismiss. Thereafter, Plaintiffs counsel withdrew and new counsel was obtained. Plaintiff filed an amended Complaint that corrected same of the non - substantive issues raised by the Defendants and included additional Counts that had arisen subsequent to the original filing of the Complaint. Although each Defendant again files separate motions to dismiss directed to Plaintiff's First Amended Complaint, they each raise substantially the same arguments and the same issues. 3. A review of the First Amended Complaint shows that each issue raised by the Defendants are without merit under the standard governing a Motion to Dismiss at this stage. The Plaintiff alleges very detailed factual allegations which defeat the claims of insufficiency. 4. In considering a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94,127 S.Ct. I of5 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 2 of 5 2197, 2200, 167 L. Ed. 2d 1081 (2007). Moreover, the Court must limit its consideration to the complaint and the written instruments attached to it as exhibits. See Fed.R.Civ.P, 12(d). See also, GEiW.. Inc. v. Long Count., 999 F.2d 1508, 1510 (11th Cir. 1993). To withstand a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Bell Atlantic Cam. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "When there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Cooper v. City of Starke, 201I U.S. Dist. LEXIS 30148, 4 -5 (M.D. Fla. Feb. 9, 201 l) chine Ashcroft v. Iaba1, 129 S.Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). 5. A Memorandum of Law is attached hereto which addresses each of the issues raised by the Defendant MARTY MINOR. 6. If this Court is inclined to grant any relief requested by the Defendants, Plaintiff asks for twenty (20) days to file an amended complaint to correct or supplement any deficiencies where applicable. WHEREFORE, Plaintiff, CHRIS O'HARE, requests this Court deny the Defendant MARTY MINOR's Motion to Dismiss and require the Defendants to file the appropriate answer, and for such further relief as the Court deems just and proper. If this Court is inclined to grant any of the alleged defects raised by the Defendants, Plaintiff asks that this Court grant him twenty (20) day to amend his Complaint. MEMORANDUM OF LAW IN RESPONSE TO THE MOTION TO DISMISS OF MARTY MINOR A. Dismissal of Plaintiff's Common Law Claims Because Immunity Defendant MARTY MINOR is not entitled to dismissal of the common law claims against him based upon sovereign immunity. Some of the claims being attacked are not subject to immunity. Furthermore, Marty Minor was not a public official. He is a independent contractor consultant. Nevertheless, sovereign immunity is an affirmative defense that may justify a motion to dismiss only Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 3 of 5 when the complaint itself conclusively establishes its applicability. Sierra v Associated Marina inedtut 850 2d 582 (2nd DCA 2003). The Plaintiffs have made detailed allegations against the Town and the individual Defendant MARTY MINOR. Plaintiff has plead his claim against the Defendant Town and the Defendant MARTY MINOR in the alternative. The individual Defendant seeks immunity because he claims the Town is liable for their actions as alleged herein. In its Motion to Dismiss, the Defendant Town, likewise, seeks to have the case dismissed for a claim of immunity. At this juncture, neither is entitled to this relief. Taken in a light most favorable and presuming the allegation are true at this procedural juncture the Motion to Dismiss on this ground should be denied. Federal Rule of Civil Procedure 8(e)(2) provides that "a party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds." Therefore, even if Plaintiff may not ultimately recovered duplicative damages, Plaintiffs may state multiple, alternative grounds for relief. JsL; Sioux Biochemical, Inc. v. Cargill, 410 F. Supp. 2d 785, 801 -02 (N.D. Iowa 2005). Although not clearly raised in his motion, the Defendant MARTY MINOR is not entitled to immunity under Federal Law. Under section 1983, Title 42, United States Code, government officials (including town managers, special magistrates, building inspectors, code enforcement officers, consultants, agents, law enforcement officers) may be sued for money damages where it is claimed that their official actions violated a plaintiffs constitutional rights under color of authority. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan. 555 U.S. 223 (2009). The Supreme Court in Saucier v. Katz 533 U.S. 194 (2001) established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. The Supreme Court held that qualified immunity analysis must proceed in two steps. First, a court must ask whether "the facts alleged show the officer's conduct violated a constitutional right." Second, if a constitutional right was violated, the court then would go on to determine whether the constitutional right was "clearly established." The Court subsequently in 2009 overruled Saucier in Pearson v. Callahan holding that the two -step procedure 3 of 5 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 4 of 5 was no longer mandatory and modified the two -step immunity analysis to make its application less restrictive. Where Saucier required courts to confront the first prong of the analysis before moving on to the second, Pearson says "the Saucier protocol should not be regarded as mandatory in all cases." A government agent's liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with "malice," but on whether a hypothetical reasonable person in the defendant's position would have known that his/her actions violated clearly established law. The general rule underlying qualified immunity provides officials and agents such Marty Minor with the ability "reasonably to anticipate when their conduct may give rise to liability for damages." Anderson v. Creighton, 483 U.S. 635, 646 (1987); Morgan Y. Swanson, 659 F.3d 359, 370 (5th Cit. 2011) ( "The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal. "). But the immunity will not protect those whose conduct violates well - established constitutional rights of which a reasonable person should be aware. A seizure of property, for Fourth Amendment purposes, happens when there is any "meaningful interference" with the owner's "possessory interests in that property." Property is protected against such seizures being carried out unreasonably even when no privacy or liberty is involved, and even when no "search" has been carried out Soldal v. Cook County, Illinois, 506 U.S. 56 (1992) Marty Minor provided advice and information to the Town which directly interfered with the Plaintiffs possessory interest in his property. Each of the Defendants claim that they are immune from suit for their direct actions in this case. In each instance, the Plaintiff sets forth in his complaint how the Defendant's conduct makes them liable for the illegal search and seizure of the Plaintiff's home and property. As set forth in the Complaint, the Plaintiff clearly shows that each Defendant violated a clearly established right. The complaint also includes other instances where each individual Defendant violated an established right. As the discussion above demonstrates, the cases that prohibit warrantless government searches and seizures are by no means new to the Supreme Court, our circuit, or other circuits. Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 5 of 5 u; When considering a Motion to Dismiss, the Court must accept all of the Plaintiffs allegations as true." D.P. ex rel. E.P. v. School Board of Broward Counly, Fl 360 F. Supp. 2d 1294, 1296 (S.D. Fla. 2005). A Complaint should only be dismissed if the Plaintiff can prove no set of facts which state a cause of actionjil. If the Court has any doubt, it must deny the Motion. ld. The amended complaint adequately sets forth the required ultimate facts that meet all the elements for his claims of Malicious Prosecution and therefore the Defendants motion to dismiss must be denied. Lei 01,41 W 1011 I HEREBY CERTIFY that on April 2, 2014, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I further certify that I either mailed the foregoing document and the Notice of Electronic Filing by first class mail to any non CM/ECF participants and/or the foregoing document was served via transmission of Notice of Electronic Filing generated by CM/ECF to any and all active CM /ECF participants. Michael R. Piper, and Christopher J. Steams JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 Telephone.: (954) 463 -0100 piper@jambg.com steams @jambg.com Dated: April 2, 2014 GMMIMADISON P.A. 401 South County Road #3272 Palm Beach, FL 33480 -9991 Tel: 561-223-9990 /s/ Mark J. Hanna Mark J. Hanna Florida Bar No. 0045251 561- 723 -8284 (cell & text) mhanna@g3mlaw.com Attorney for Plaintiff Jonathan O'Boyle, Esq. Jonathan R. O'Boyle, RC 2146 E. Huntingdon St. Philadelphia, PA 19125 Tel: 561 -758 -1223 Fax: 215-893-3641 Pennsylvania Bar No. 314500 Attorney for Plaintiff 5 of 5 Louis L. Roeder, Esq. 7414 sparkling Lake Rd Orlando, FL 32819 407 - 3524194 cell 407 - 7584194 lou @louroeder.com Delivered via E -Mail December 10, 2012 William Thrasher Town Manager TOWN OF GULF STREAM 100 Sea Road Gulf Stream, FL 33483 Re: 2520 Avenue Au Soleil, Gulf Stream, FL 33483 Subject: Code Violation Letter, dated Nov. 5, 2012 Dear Mr. Thrasher: I am in receipt of your November 5, 2012 letter to Mr. and Mrs. O'Hare, hand delivered to Mr. O'Hare by the Gulf Stream police on the morning of Saturday, November 10. Your letter accuses the O'Hares of several town code violations at their home located at 2520 Avenue An Soleil. Herein is a copy of each of your allegations, followed by the O'Hare's response in bold italics: 1. Expired Re- roofing Permit #11- 135146. Section 42 -29 of the Gulf Stream Code of Ordinances states that all authorized construction shall be completed prior to expiration of the permit. Florida Building Code Section 105.4.1.3 states that work shall be considered to be in active progress when the permit has received an approved inspection within 180 days. The last roof inspection was April 26, 2012. Permit #11- 135146 has been renewed by the City of Delray Beach and is currently active. Therefore this alleeed violation as .stated does NOT exist 2. No overlay material in place on roof. Section 22 -32(5) states the roof shall be constructed & maintained so as not to leak and they shall be kept clean and painted. An overlay was placed on this roof on August 25th, in accordance with the Florida Building Cod, at the height of hurricane season as a precaution against damage that could have been caused by Hurricane Isaac. This overlay was inspected by a registered engineer and meets the standards per the Town Code Section 22- 32(5). In addition, the Letter to William Thrasher Response to O'Hare Violation Letter December 10, 2012 Page 2 of 5 O'Hare's roof is clean and free of any debris and construction material. Those portions of the roof that normally receive paint have been painted as per your approved colors as detailed in the O'Hare's permit number 11- 136068. Also note that, even though this overlay is not required for the roof system the O'Hares are seeking to install per the recommendation of their engineer, they did install this overlay at considerable expense in order to temporarily mitigate any storm damage to their home that could be caused by a delay in their application to amend the roof permit. Therefore this alleged violation as stated does NOT exist 3. Removal of a portion of driveway without obtaining a permit. This is a violation of Section 58- 138(b). The Town's Code Section you reference makes no mention of driveways. The Section does not support your allegation that a code violation has occurred Therefore this alleged violation as stated does NOT exist 4. Installation of landscape material that does not reinforce the identity of the applicable zoning district as stated in Section 70 -146 and further is in violation of Section 70 -32(a) that states this district is characterized as having "open front lawns ". While Section 70 -32(a) characterizes the Place Soleil District as historically having open front lawns, this condition no longer exists - as evidenced by the majority homes in this district which have landscape conditions identical to what the O'Hares have installed As proof of this fact, please note one of the pictures you provided - the third picture on page CD70:21 shows the northeast corner of 2540 Avenue Au Soleil (as well as the southeast of 2520 Avenue An Soleil, the O'Hare Is residence). This photo is attempting to illustrate an open front yard as a supposedly existing condition. However, a visit to 1540 AAS shows something quite different. 1540 AAS as it is today is actually buffered by a substantial hedge between the house and the street (see comparison of the pictures below). Letter to William Thrasher Response to O'Hare Violation Letter December 10, 2012 Page 3 of 5 Standard front setbacks, large rights -of -tray Photo from Section 70 -32 Existing condition from Google Maps With regard to Section 70 -146 and the reference to reinforcing the "identity of the applicable zoning district, " the O'Hares have made a thorough survey of the Place An Soleil zoning district before they installed any plants at their home. They found numerous examples of homes with landscape material similar to theirs throughout their zoning district. In fact, we can provide to you a list of these homes with landscape material you claim does not reinforce the identity of the applicable zoning district (including the homes of Town Commissioners, members of the town's Architectural Review Board and members of the districts Home Owners Association, ?f you wish). Letter to William Thrasher Response to O'Hare Violation Letter December 10, 2012 Page 4 of 5 Therefore this alleged violation as stated does NOT exist 5. Some of the plants in the landscaping pallet are not listed within the Code at Section 70 -150, i.e. the Lady Palms and the plantings also include species not listed as appropriate or typical for Gulf Stream or Place An Soleil. Town Code Section: 70 -150 identifies "examples of materials presently found in the Town. " The code does not identify the listed plant material as the only plants to be used at the exclusion of all others. Nor does this Section prohibit the use of other plants not found on the list. Again, if you wish, I can provide to you a list of homes (including the homes of Town Commissioners, members of the Town's Architectural Review Board and members of the districts Home Owners Association) that have planted the very same plants you object to on the O'Hare property. These homes also have landscape pallets which include many plants not listed within Town Code Section 70 -150. Therefore this alleged violation as stated does NOT exist This is to be considered official notice to correct these violations within 30 days. Failing to comply with this order shall result in future action as provided in Chapter 2, Article III, Division 2 of the Code of Ordinances, a copy of which is enclosed along with copies of other sections mentioned herein. Finally, I think it would be helpful to reference Section 70 -3, explaining the Purpose of the Gulf Stream Design Manual, specifically paragraphs (a) (3) and (b) that state, respectively: "The Chapter is also intended to be utilized in conjunction with the Gulf Stream Land Development Regulations and the Comprehensive Plan. Together these documents provide a framework which can foster creative design approaches and solutions. " "The design standards in this chapter are, by specific intent, illustrative rather than prescriptive. They do not dissect every architectural influence, nor do they attempt to prescribe specific, detailed ways to handle every type of alteration to existing structures. " The language of the Gulf Stream Design Manual is simple and clear, per its own stated purpose, that the Design Manual is not intended to be simply a list of prohibitions, rather, a guide to foster creativity. Letter to William Thrasher Response to O'Hare Violation Letter December 10, 2012 Page 5 of 5 In summary, we feel that your letter is yet another attempt, by you personally, to allege violations that do not exist and references code sections that do not apply. As such, we respectfully submit that, contrary to your accusations, the O'Hares are NOT in violation of the Gulf Stream Town Code. If you have any questions or need more information, please call my cell phone at 407 - 758 -4194. Respectfully, I,, AE2, - Louis L. Roeder, Esq. CC. Rita Taylor, Town Clerk Chris O'Hare Attachment: Copy of Thrasher's Nov 5, 2012 Violation Letter From: Marty Minor To: Nicole Simpson Subject Re: Guifstream - 2516 Ave. Au Sole[ Date: Wednesday, March 26, 2014 9:20:18 AM That is what I was looking for. Thanks! Sent from my iPhone On Mar 25, 2014, at 4:15 PM, "Nicole Simpson" <nsimpson(audkstudios.com> wrote: You can deal with this when you get back, but figured I would email now and you can read later so I don't forget. Ok, I finally heard back from Englert and spoke with an architectural representative from the Company named David Handler. He said that the system is currently not permittable in Florida. The company has a 3rd party working with the State of Florida to get approved to use in Florida. They have applied to have the product permittable and waiting to hear back on their request. It is not a fast moving process, and David said that it would probably take a year before the solar sandwich roof system is permittable in Florida. Nicole R. Simpson, LEED AP Urban Design Kilday Studios 477 South Rosemary Avenue Suite 225 — The Lofts at Cityplace West Palm Beach, FL 33401 P 561/366 -1100 x116 F 561/366 -1111 n si m nson6u d kstu d ios. c om Please be aware that when we send electronic data out of our office, we do not have control over how the information is subsequently used. We request that you do not provide this electronic file to any third party. APlease consider the environment before printing this e-mail From: Marty Minor Sent: Tuesday, March 25, 2014 9:58 AM To: Nicole Simpson Subject: Re: Gulfstream - 2516 Ave. Au Sole! Good information. Please call an Englert representative and ask the specifically if the solar roof system is permittable in Florida. Thanks, marty Sent from my Whore On Mar 24, 2014, at 11:40 AM, "Nicole Simpson" <nsimosnn(@udkstudios.com> wrote: Marty, I have been doing some research this morning regarding the solar sandwich roof system by Englert. Not sure if I am going in the right direction or not ... but figured id email you what I have found so far. I haven't really found what products are approved by different states; it seems to be more of what categories are given tax credit for. Below is the federal site that talks about that and they talk about solar energy as one of the categories that it might fit in. In an article by the clean energy authority it states that the solar sandwich System is eligible for federal as well as state rebates and other incentives. (Is this what you are trying to get me to look for ?) httc),//www.clpanpnpreyauthorit)I crim/gola r- energy- news /englert- introduces -pv- solar- hot -wat r- roof -110 i1/ This website gives you solar incentives and rebates by state, county, city and utility as well as federal government solar incentives and rebates: httm / /www.rlea nenergya uthority.com /sola r- rebates - and - incentives/ California is providing incentives to businesses and home owners to go solar through a program they are trying to implement by 2016 httpi//www.eosolarcalifornia.ca.2ov/about/­!ndex,nhn Nicole R. Simpson, LEEDAP Urban Design Kilday Studios 477 South Rosemary Avenue Suite 225 — The Lofts at Cityplace West Palm Beach, FL 33401 P 561/366 -1100 x116 F 561/366 -1111 n si m oson aucikstud ios. c o rn Please be aware that when we send electronic data out of our office, we do not have control over how the information is subsequently used. We request that you do not provide this electronic File to any third party. APlease consider the environment before printing this e-mail LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT. PA. W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, P.A. 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO, P.A. SUITE 1000 ROBERT E. MURDOCH MICHAEL T. BURKE' FORT LAUDERDALE, FL 37704 MICHAEL R. PIPER HUDSON C. GILL. PA. DAVID M. SCHWEIGER, PA. JEFFREY L. HOCHMAN, P.A. CHRISTOPHER L. SMITH E. BRUCE JOHNSON (954) 463-0100 Bm CHRISTOPHER J. STEARNS, PA (70519454000 Dade (551)640.7448 VJPB Rt7NtD TELECOPIER (954) 4632444 RONALD P. ANSELMO vc.uure.:naroowc MAL UmFU BURLF. GEORGE December 4, 2014 Via electronic mail: Mminor cr udkstudios.com Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of federal district Judge Ryskamp's order of transfer of the above - captioned matter to federal district Judge Middlebrooks. Judge Ryskamp is intimately familiar with background of the case and he wrote a strongly worded order granting out initial motions to dismiss. I am disappointed that he is not keeping the case; however, the court's own local rules require that Judge Middlebrooks be assigned to it. As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael R. Piper For the Firm MRP /mez Enclosure LAW OFFICES JOHNSON, ANSELMO, MURDOCII, BURKE, PIPER & HOCIIMAN, P.A. A PROFESSIONAL ASSOCIATION DAMUW H. ALBERT, PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER, P.A. 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO. PA SURE 1000 FORT LAUDERDALE, FL 33304 ROBERTE. MURDGCH MICHAEL T. BURKE' MICHAEL R. PIPER' HUDSON C. GILL PA. DAVID M. SCHWPJGER, PA JEFFREY L HOCHMAN. PA CHRISTOPHER L. SMITH E. BRUCE JOHNSON (954) 453.0100 Bin rd CHRISTOPHER J. STEARNS, PA (305) 545.2000 Dade (561) 54D�744a WPB AiTMLD TELECOPIER (95414532444 RONALD P. ANSELMO •3a MO rGORFJ)CML Hunt uxmw BURL F. GEORGE April 4, 2014 Via electronic mail Marty Minor Town's Planning Consultant Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Minor: Enclosed please find a copy of Plaintiffs response in opposition to the motion to dismiss that we previously filed on your behalf in the above - captioned matter. We are preparing a reply and will copy you with same upon receipt. As always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael Piper For the Firm MRP /taw Enclosure Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:13 -ev- 81053 -KLR CHRIS O'HARE Plaintiff, VS. TOWN OF GULF STREAM et. al. Defendants. The Plaintiff CHRIS O'HARE by and through his undersigned attorneys, and pursuant to the Federal Rules of Civil Procedure and this Court's Local Rules, asks this Court to deny the Motion to Dismiss filed by the Defendant MARTY MINOR and as grounds states: This action involves an individual suing a local government municipality and various individual municipal officials for numerous interrelated incidents where the municipality violated his constitutional rights and other wrongdoings. 2. Plaintiff filed his Complaint on October 17, 2013 and the each of the named Defendants filed motions to dismiss. Thereafter, Plaintiff's counsel withdrew and new counsel was obtained. Plaintiff filed an amended Complaint that corrected some of the non - substantive issues raised by the Defendants and included additional Counts that had arisen subsequent to the original filing of the Complaint. Although each Defendant again files separate motions to dismiss directed to Plaintiff's First Amended Complaint, they each raise substantially the same arguments and the same issues. 3. A review of the First Amended Complaint shows that each issue raised by the Defendants are without merit under the standard governing a Motion to Dismiss at this stage. The Plaintiff alleges very detailed factual allegations which defeat the claims of insufficiency. 4. In considering a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff. Erickson v. Pardus. 551 U.S. 89, 94, 127 S.Ct. 1 of Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 2 of 5 2197, 2200, 167 L. Ed. 2d 1081 (2007). Moreover, the Court must limit its consideration to the complaint and the written instruments attached to it as exhibits. See Fcd.R.Civ.P, 12(d). See alsg GSW. Inc, v. Lone CounM +a., 999 F.2d 1508, 1510 (11th Cir, 1993). To withstand a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "When there arc well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Cooper v. Cily of Starke, 201I U.S. Dist. LEXIS 30148,4-5 (M.D. Fla. Feb. 9, 2011) citiag Ashcroft Y. Iaba1, 129 S.Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). 5. A Memorandum of Law is attached hereto which addresses each of the issues raised by the Defendant MARTY MINOR. 6. If this Court is inclined to grant any relief requested by the Defendants, Plaintiff asks for twenty (20) days to file an amended complaint to correct or supplement any deficiencies where applicable. WHEREFORE, Plaintiff, CHRIS O'HARE, requests this Court deny the Defendant MARTY MINOR's Motion to Dismiss and require the Defendants to file the appropriate answer, and for such further relief as the Court deems just and proper. If this Court is inclined to grant any of the alleged defects raised by the Defendants, Plaintiff asks that this Court grant him twenty (20) day to amend his Complaint. MEMORANDUM OF LAW IN RESPONSE TO THE MOTION TO DTSNHSS OF MARTY MINOR A. Dismissal of Plaintiff's Common Law Claims Because Immunity Defendant MARTY MINOR is not entitled to dismissal of the common law claims against him based upon sovereign immunity. Some of the claims being attacked are not subject to immunity. Furthermore, Marty Minor was not a public official. He is a independent contractor consultant. Nevertheless, sovereign immunity is an affirmative defense that may justify a motion to dismiss only Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 3 of 5 when the complaint itself conclusively establishes its applicability. Sierra v. Associated Marine Institute, 850 2d 582 (2nd DCA 2003). The Plaintiffs have made detailed allegations against the Town and the individual Defendant MARTY MINOR. Plaintiff has plead his claim against the Defendant Town and the Defendant MARTY MINOR in the alternative. The individual Defendant seeks immunity because he claims the Town is liable for their actions as alleged herein. In its Motion to Dismiss, the Defendant Town, likewise, seeks to have the case dismissed for a claim of immunity. At this juncture, neither is entitled to this relief. Taken in a light most favorable and presuming the allegation are true at this procedural juncture the Motion to Dismiss on this ground should be denied. Federal Rule of Civil Procedure 8(e)(2) provides that "a party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds" Therefore, even if Plaintiff may not ultimately recovered duplicative damages, Plaintiffs may state multiple, alternative grounds for relief. _,; Sioux Biochemical. Inc. v. Cargill, inc.. 410 F. Supp. 2d 785, 801 -02 (N.D. Iowa 2005). Although not clearly raised in his motion, the Defendant MARTY MINOR is not entitled to immunity under Federal Law. Under section 1983, Title 42, United States Code, goverment officials (including town managers, special magistrates, building inspectors, code enforcement officers, consultants, agents, law enforcement officers) may be sued for money damages where it is claimed that their official actions violated a plaintiffs constitutional rights under color of authority. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan. 555 U.S. 223 (2009). The Supreme Court in Saucier v. Katz 533 U.S. 194 (2001) established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. The Supreme Court held that qualified immunity analysis must proceed in two steps. First, a court must ask whether "the facts alleged show the officer's conduct violated a constitutional right." Second, if a constitutional right was violated, the court then would go on to determine whether the constitutional right was "clearly established." The Court subsequently in 2009 overruled Saucier in Pearson v. Callahan. holding that the two -step procedure 3 of5 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 4 of 5 was no longer mandatory and modified the two -step immunity analysis to make its application less restrictive. Where Saucier required courts to confront the first prong of the analysis before moving on to the second, Pearso says "the Saucier protocol should not be regarded as mandatory in all cases." A government agent's liability in a federal civil rights lawsuit now no longer tums upon whether the defendant acted with "malice," but on whether a hypothetical reasonable person in the defendant's position would have known that his/her actions violated clearly established law. The general rule underlying qualified immunity provides officials and agents such Marty Minor with the ability "reasonably to anticipate when their conduct may give rise to liability for damages." Anderson v. Creighton, 483 U.S. 635, 646 (1987); Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) ( "The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal "). But the immunity will not protect those whose conduct violates well - established constitutional rights of which a reasonable person should be aware. A seizure of property, for Fourth Amendment purposes, happens when there is any "meaningful interference" with the owner's `possessory interests in that property." Property is protected against such seizures being carried out unreasonably even when no privacy or liberty is involved, and even when no "search" has been carried out Soldal v. Cook County. Illinois, 506 U.S. 56 (1992) Marty Minor provided advice and information to the Town which directly interfered with the Plaintiffs possessory interest in his property. Each of the Defendants claim that they are immune from suit for their direct actions in this case. In each instance, the Plaintiff sets forth in his complaint how the Defendant's conduct makes them liable for the illegal search and seizure of the Plaintiff's home and property. As set forth in the Complaint, the Plaintiff clearly shows that each Defendant violated a clearly established right. The complaint also includes other instances where each individual Defendant violated an established right. As the discussion above demonstrates, the cases that prohibit warrantless government searches and seizures are by no means new to the Supreme Court, our circuit, or other circuits. 0 Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 5 of 5 miartmemn—puragninrimm, mro me, When considering a Motion to Dismiss, the Court must accept all of the Plaintiffs allegations as true." D P ex rel E.P. v School Board of Bmward County. EL 360 F. Supp. 2d 1294, 1296 (S.D. Fla. 2005). A Complaint should only be dismissed if the Plaintiff can prove no set of facts which state a cause of action. _W. If the Court has any doubt, it must deny the Motion. U The amended complaint adequately sets forth the required ultimate facts that meet all the elements for his claims of Malicious Prosecution and therefore the Defendants motion to dismiss must be denied. I HEREBY CERTIFY that on April 2, 2014, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I further certify that I either mailed the foregoing document and the Notice of Electronic Filing by first class mail to any non CM/ECF participants and /or the foregoing document was served via transmission of Notice of Electronic Filing generated by CM/ECF to any and all active CM /ECF participants. Michael R. Piper, and Christopher J. Stearns JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 Telephone.: (954) 463 -0100 piperQn jambg.com sleams@jambg.com Dated: April 2, 2014 GMMIMADISON P.A. 401 South County Road #3272 Palm Beach, FL 33480 -9991 Tcl: 561- 223 -9990 /s/ Mark J. Hanna Mark J. Hanna Florida Bar No. 0045251 561- 723 -8284 (cell & text) mhanna@g3mlaw.com Attorney for Plaintiff Jonathan O'Boyle, Esq. Jonathan R. O'Boyle, RC 2146 E. Huntingdon St. Philadelphia, PA 19125 Tel: 561 - 758 -1223 Fax: 215-893-3641 Pennsylvania Bar No. 314500 Attorney for Plaintiff 5of5 Aa�3 -cv- 81053 -DMM Document 68 Entered on FLSD Docket 11/20/2014 Page 1 of 2 CHRIS O'HARE, Plaintiff, V. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: 13 -CV- 81053- RYSKAMP/HOPKINS TOWN OF GULF STREAM et al., Defendants. ORDER OF TRANSFER THIS CAUSE comes before the Court sua sponte. The above- styled case is a refiled action from the case styled O'Hare v. Town of Gulf Stream, Case No. 13-80432 - MIDDLEBROOKS/BRANNON. The prior matter was dismissed without prejudice pursuant to an agreed order on May 30, 2013, by Judge Donald M. Middlebrooks. Pursuant to Local Rule 3.9, it is hereby ORDERED AND ADJUDGED that this case is TRANSFERRED to the Honorable Donald M. Middlebrooks. DONE AND ORDERED in Chambers at West Palm Beach, Florida this /f day of November 2014. ENNETH L. RYSK P UNITED STATES DISTRICT JUDGE ECEIVE 1 NOV 2 0 2014 L1': 9:13 -cv- 81053 -DMM Document 68 Entered on FLSD Docket 11/20/2014 Page 2 of 2 After reviewing the Court file in the above - numbered case, the undersigned hereby accepts the transfer of said case. Accordingly, it is hereby ORDERED AND ADJUDGED that all pleadings hereinafter filed shall bear the case number 13- 81053 - MIDDLEBROOKS /BRANNON, thereby indicating the Judge to whom all pleadings should be routed or otherwise brought for attention. The foregoing transfer is herewith accepted this a-2 C DONALD M. MIDDLEBROOKS UNrI'ED STATES DISTRICTJUDGE Kelly Avery From: Bill Thrasher <bthrasher @gulf - stream.org> Sent: Wednesday, September 19, 2012 2:24 PM To: Marty Minor Subject: RE: 2520 Avenue Au Soleil Thanks. From: Marty Minor [mailto:MMinor @udkstudios.com] Sent: Wednesday, September 19, 2012 2:15 PM To: Bill Thrasher Subject: RE: 2520 Avenue Au Soleil Well, that is a horse of a different color. Yes, I did unfortunately rely on Google for this. Here is my description for your use: 2520 Avenue Au Soleil incorporates various architectural styles, but the predominant style is Gulf Stream - Bermuda. Consistent with the description found in Sections 70 -236 through 70 -244, the home's simple, rectangular layout, smooth stucco exterior and rectilinear windows help identify its style. Although the existing barrel tile roof uses non - preferred materials, the low- pitch, combination hip and gable style roof is a strong characteristic of the Gulf Stream - Bermuda style. Marty R.A. Minor, AICP Urban Design Kilday Studios The Offices at City Place North 477 South Rosemary Avenue, Suite 225 West Palm Beach, Florida 33401 -5758 561- 366 -1100 From: Bill Thrasher rmailto :bthrasher(cbgulf- stream.orq] Sent: Wednesday, September 19, 2012 1:08 PM To: Marty Minor Subject: RE: 2520 Avenue Au Soleil Perhaps you used Google as I did. The house that had the identifier on it is not the house in question. It is the inside corner one with red terra cotta roof. I am attaching a sheet for your review that will indicate which is 2520. Also, if you have to ride by, please do. Please identify all elements that can be associated with GS Bermuda such as rectilinear features that may be present. I need a listing of all such GS Bermuda characteristics. From: Marty Minor r mailto:MMinor(aludkstudios.coml Sent: Wednesday, September 19, 2012 11:58 AM To: Bill Thrasher Subject: 2520 Avenue Au Soleil Importance: High Bill, This email is to confirm the findings of the Single Family Home architectural survey for the home at 2520 Avenue Au Soled. The architectural style for the home is Gulf Stream - Bermuda. As described in Sections 70 -236 through 70 -244, the predominant and most identifiable feature of Gulf Stream - Bermuda homes is the flat, white tile hip roof. In addition, a simple building configuration and consistent eave lines are also features of the Gulf Stream- Bermuda style. The home at 2520 Avenue Au Soleil share all of these characteristics. As such, the architectural style for 2520 Avenue Au Soleil is Gulf Stream- Bermuda. Should you have any questions regarding this confirmation, please let me know. Thank you, marty Marty R.A. Minor, AICP Urban Design Kilday Studios The Offices at City Place North 477 South Rosemary Avenue, Suite 225 West Palm Beach, Florida 33401 -5758 561- 366 -1100 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail August 25, 2015 freddy farnsworth [mail to: frederick.freddy.famsworth @gmail.com] Re: GS #1862 (2520 AAS GS) Any notes memos, reports, emails, photos, invoices, letters or any other records related to 1520 Avenue Au Soleil for the Town of Gulf Stream. Dear freddy farnsworth [mail to: frederick.freddv.farnsworthna wnail.coml, The Town of Gulf Stream received your original public records request from Urban Kilday Design on June 22, 2014. You should be able to view your original request at the following link http: / /www2.gulf- stream. ore /weblink/O /doc/56223/Pagel.aspx. In future correspondence, please refer to this public records request by the above referenced numbers. The responsive documents from Urban Kilday Design can be found at the same above link as well as attached to this email. We consider this matter closed. Sincerely, Town Clerk, Custodian of the Records