HomeMy Public PortalAboutPRR 14-1871Kelly Avery
From:
Kerry Kilday <Kilday @udkstudios.com>
Sent:
Monday, June 23, 2014 8:45 AM
To:
Ken Tuma
Subject:
FW: PUBLIC RECORDS REQUEST -ohare spec mag hearing 2013 GS - Character set not
allowed
From: Freddy farnsworth [frederick.freddy.farnsworth @gmail.com]
Sent: Sunday, June 22, 2014 9:30 PM
To: Anne Booth
Cc: Ken Tuma
Subject: PUBLIC RECORDS REQUEST -ohare spec mag hearing 2013 GS - Character set not allowed
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, photos, or any other record related to preparation for, or attendence at, the code
enforcement hearing before a special magistrate for Gulf Stream resident Chris O'Hare in 2013.
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)(f) 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 .freddv.farnsworthCclgmail.com
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Don't Shoot from the Hip:
Plan and Regulate Shooting Ranges
By Erica S. Racha and Dwight Merriam, :acv
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, or worse, 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 are.
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 an 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 flnd the off -site Impacts Intolerable. Zon-
ing Is rooted in nuisance avoidance, although
we have lost sight of that today in the evolved
world oFtmnsibodented development, new ur.
banism, and fan-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
(5826), to be reminded of that core principle of
zoning with Justice George Sutherland's aft.
quoted observation: "A nuisance may be mere.
ly a fight thing In the wro ng 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 notyet 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 targets.
Participants generally use dfles and pistols to
shoot 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 2oo3)• In recent
years, however, the traditional American shoot.
ing range has undergone a dramatic transfor-
mation.
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 com-
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
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Arizona offers a "Bullets and Burgers Experi-
ence." which Includes a scenic drive through
the desert, shooting a .5o caliber sniper rifle,
blasting away with a M249 SAW machine gun,
and eating a "world famous cheeseburger." Las
Vegas, home to the nation's loosest gun lawn,
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 (Hemandez zotz).
Despite their popularity, shooting rages
across the nation face sharp opposition due
to safety, noise, and environmental concerns.
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 zatz). 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 harriers, berths, and baffles,
which help pmtect against injury of people and
damage to property. These barriers also allow
for systematic recovery of lead projectiles (Luke
1996). Indoor shooting ranges typically include
rifle and handgun ranges.
Indoor ranges are popular because they of-
fer protection from inclement weather and can be
operated under controlled environmental condi-
tions. Environmental and occupational controls
are necessary to protect the health or shooters
and ra nge personnel from effects of airborne lead
and noise (Kardous and Afunah zotz).
PLANNING CONSIDERATIONS AND
BEST PRACTICES
As a result of urban expansion into rural areas,
some long- esmblished gun clubs and shooting
ranges are finding themselves increasingly clos-
er to, if not abutting, residential neighborhoods.
Careful planning and gnventmenl regulation
can take certain steps to ensure that shooting
ranges are good neighbors. Loral 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
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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 tggg).
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 atto may 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 2oo8).
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. The state alleged that the range ob-
structed the reasonable use and enjoyment of
neighboring properties. Despite overwhelming
Escape Angle 80' or Greater
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oriented so that shooting Is away from sound -
sensitive areas and residential neighborhoods
(NRA zo12).
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 Room can be treated with special
noise - abatement materials and panels so that
they absorb the reverberation of gunfire. By de-
creasing noise levels within the gun range, the
overall safety of the range Is Improved because
members and employees are protected from
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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 an 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
lands. The mitigation area Is highly restricted
and no changes or Improvements can be made
within the area without approval of the govern-
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 properties, 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. Fischer v. Nall, Court o /Ap.
Pacts Of Ohio, 6th Dist, Aug. 6, 20 i t).
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 an weekend momings, 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 over water. Ranges should be
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 unpermitted backyard range in Burlington,
Vermont, hit and killed a St. Michael's College
professor. The shooter was convicted of volun-
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 -
mite 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
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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, 2013 WL 2335299 (Mass.
Super. Apr. 12, zou)).
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
rounds cannot escape the perimeters of the
range (WLZM 13 2013).
Planners and local officials should be
aware ofthe 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 offire, prohibition of
alcohol and drug use on the premises, coor-
dination of flre 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 orderto prevent stray bullets
from escaping the range. It may be necessary
to Install overhead baffles orguards to ensure
that bullets cannot escape (NRA 2ot2).
Environmental Considerations
The primary environmental concern related to
shooting ranges Is the potential for lead con-
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shooting range.
tamination. According to a study by the U.S.
Environmental Protection Agency (EPA) from
the late tggos, 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 nearby water
sources or penetrate the soft 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 t997). The EPA,
the Centers for Disease Control and Prevention,
and a large number of states have Identified
human exposure to all tons of lead as a major
health concern in the United States (EPA 2oo5).
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 2005).
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. From 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 stared or accumulated an
the premises, but sent to a rerycler 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- 298os, citizen groups
have rallied against the Improper manage-
ment or 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 fallow practices suggested by environmental
agencies (Simsbury-Avon preservation Society
LLC at al. v. Metacon Club Inc., (D. Conn. June
tq, 2004); Cordlona v. Metacan Gun Club, Inc.,
575 Fad tgg (2d Cir. 2009); T8B Ltd. Inc. v. City
o / Chicago, 369 F.Supp.2d 989 (N.D. Illinois,
Eastern Division 2005)).
In response to environmental concerns,
many shooting ranges now use steel shot
alternatives. Although more expensive and
ballistically 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
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far less toxic than lead bullets. The transition
to steel alternatives dates back to tggt when
federal wildlife authorities ordered steel pellets
to replace lead birdshot In waterfowl hunting
(Ravindran 2ot3). In 2ot3, California lawmak-
ers passed a bill banning lead from bullets In
orderto protect condors, whose main muse of
death is lead poisoning from ammunition and
"gut piles" left behind by hunters who clean
carcasses In the field (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 by getting out ahead of poen.
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 an.
vironmentat 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 an 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 cholms 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 for a mrwash or funeral home.
Bemuse 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 orspe-
clal permit use) In one or more zoning districts,
requiring approval through a discretionary site -
specific review. This approach Is appropriate
for a use that might be fine in one location In a
zone but not on anothersite 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, expert testi.
mony can be helpful In decision making. Some
states allow local governments to require that
applicants pay for the cost of expert review.
Performance standards and periodic reports
on operations may help prevent adverse off -
site Impacts.
Communities looking far additional
discretion in the approval process may con-
sider adapting 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 of a rezon-
Ing application for a particular parcel.
Some communities exercise maximum
discretion by requiring potential range own-
ers or operators to apply for a base - district
rezoning to 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 easlerforthe 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 ofthe 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 OEP zoom). 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, contalnmen4 and recycling
Issues (Cotter 2003). The plan should delineate
exactly what combination of practices will be
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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, October2o. Available at www.washingumpost.com
plan. Although there may be Initial Increases in
/national/ health - science /with - ban -on- lead -in- hunters - bullets- califomia- hopes- to- pmtect-
cost due to purchasing steel shot alternatives
condors / 2013 /10/20/2e375388- 3829. 11e3- ae46.e4248e75c8ea_story.html.
and investing In routine cleanup practices,
• Connecticut General Assembly, zo1o. "Shooting Range Safety Standards in Other States" OLR
ranges will be avoiding the long -term costs of
Research Report.
litigation and risk of closure.
• Cotter, David G. 1999. "Outdoor Sport Shooting Ranges: An Endangered Species Deserving of
Protection" Thomas M. Cooley Law Review, 16: 164 -200.
REACHING THE RIGHT RESULT
Shooting ranges can peacefully coexist in most
• Cotter, David G. 2oo3. "Outdoor Sport Shooting Ranges Underthe Environmental Gun -the
communities, providingtralning and sporting
Final Assault or Merely a Manageable Dilemma?" Thomas M. Cooleylaw, Review, 20:453-459•
opportunities for gun enthusiasts while ellmi-
• Curren, John. 2012. "Vt. Man Gets tall in Profs Stray Bullet Death." Seattle Imes, June lo. Avail-
nating virtually all adverse impacts. Planners
able at http: // seattletimes. com/ html/ nationmrid/ 2022O84Oo6apuspmfessorsshwting .html.
who take the initiative and plan for shooting
• Hernandez, Daniel. 2012. "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.theguardion.com /world /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 /ni0sh /dots
consensus about proper facility design, opera -
/wp. solutions /2013.104/pdfs/2013.104.pdf.
lions, and environmental protections.
• Luke, David. 1996. "Baffles, Berms and Backstops." Third National Shooting Range Sympo-
sium, June 23 -25. Available at http: / /nssf.arg/ ranges /RangeResources /library/detall
i Cover 1
.cfm ?filename- facility_mngmnt /design /baffles_berms.htm&CAT- Facility%2oManagement
design
II
• McCollum, Bill. 2oo8. "Advisory Legal Opinion -AGO 2008 -34." Florida Office of the Attorney
bV Lisa Barton.
General, June 25• Available at www.myfloddalegal. com /ago.nsf /Opinions /982884OC127FO39
485257473oo6CADD5.
• National Rifle Association (NRA). 2012. The Range Source Book -A Guide to Planning and Con-
VOL' 3o, NO. 12
struction. Washington, D.C.: National Rifle Association. Available at http : / /mngesemices.nm
Zoning Practice is a monthly publication of the
American Planning Association. Subscriptions are
.org /snumebook.aspx.
available for $95 (U.S.) and $120 (foreign).
• National Shooting Sports Foundation (N SSF). 1997. Environmental Aspects o(ConstrucNan and
W. Paul Farmer, FAxR, Chief Executive Officer,
David Rouse,A , Managing Director of Research
Management o /Outdoor Shooting Ranges. Available at www.dol.gov /greening /links /upload
and Advisory Services.
/EAofCMofOSR.PDF.
Zoning Practice USSN 1548 -0135) Is produced
at APA. Ism Schwab, AKe, and David Morley, wce,
• Ravind ran, Sandeep. 2013. "Banning Lead Ammunition Could Give Condors a Chance." Na.
Edit ors; Julie Von Bergen, Assistant Editor; Lisa
tional Gea ro hic, Octobers Available at htt
g p 4. p: / /news.nationalgeographic .com /news /2013
Barton, Design and Production.
/10/'31oi4. lead - ammunition- ban - condor - callfomia- science.
Missing and damaged print Issues: Contact
Customer Service, American Planning
• Remakel, John A. 2008. "A Minnesota Armistice ?The Enactment and Implementation oftha
Association, 2o5 N. Michigan Ave., Suite
Minnesota Shooting Range protection Act" Hamline Low Review, 31:197 -232.
1200, Chicago, IL 6o6o1(312- 431.9100 or
custamerserviceWp(anning.org) within go days
• Responsive Management. zolo. Sport Shooting Participation In the United States in 2oo9.
of the publication date. Include the name of the
Conducted for the National Shoaling Sports Foundation. Available at www.nsstorg /pdf
publication, year, volume and Issue number or
/research /excerptnssf- shooting- participation- mport.pdf.
membership your name.
If real l[Ing address, and
• Smith. Kelly. 2013. "Growing Interest In Guns Crowds Gun Ranges." Star Tribune, July 20.
Copyright 02013 by the American Planning
Available at www.startribune.com /local /west /216245721. him[.
Assodali0n, 205 N. Michigan Ave., Suite szoo,
Chicago, IL 60601 -5927. The American Planning
• U.S. Enviro nmental Protection Agency (U•S. EPA). 2005. Best Monagement Practices for Lead
Association also has offices at 103015th St., NW,
at Outdoor Shooting Ranges. Available at wwwz.epa.gov /sitesJproduction /files /documents
Suite 750 West, Washington, DC 20005 -15037 wiviv,ptanning.org.
/epa bmp.pdf.
AR rights reserved. No part of this publication
• Weeks, Linton. 2013. "Are Shooting Ranges the New Bowling Alleys ?" NPR, January 31. Avail.
may be reproduced or utilized In any form
able at www .npr.arg/z013/o1/31/170391799 /are - shoaling- ranges- lhr new- bowling - alleys.
or by any means, electronic or mechanical,
Including photocopying, recording, or by any
• WZZM 13.2013. "Gun Club Unveils Plans to Prevent Stray Bullets." October 7. Available at
Information storage and retrieval system, without
www.mzml3 .com /news /regional /270087/5/ Gun - club - unveils - plans -to- prevent - stray - bullets.
permission In writing from the American Planning
Association.
Pri nted an recycled paper, Including 50.7o%
recycled fiber and 1o% postconsumerwage.
ZONINGPRACTICE 12.13
MIERICANn NINGASSOCUnONMe7
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
Z07
ki iac
STUDIO
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 SoleiIU516 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 A1A 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 Soleil 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 Soleil 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 1l7
Town of Gulf Stream Transmission Letter
F—A— - 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 217
r>'" RECE:I V ED
100 NW 1" Avenue • Delray Beach, FL 33444
13i4 OF BUMPY HMM f =EB � 5 2014 (561) 243 -7200 • Fax (561) 243 -7221
www. mydel raybeach. com
n,yr, of Gullstrnam Fl.
BUILDING PERMIT APPLICATION
Name yULfs-rf�jilvl SJL6rL A4XIIA S LLC.
Address 25'20 AUM %W, A- J So Lf.I L
City 6VLP sTefAhv� State Ff- Zip ;3q87,
Home Phone ( 561 ) Z7 6 - 9 2ZS
Cell Phone ( 5'61) 350 -7551
Fax No. ( %J
Email Address PINT ( D Cab ra MAIL rK
- 0q - 27- -CbD - 0350
Legal Description YI Ii•F {h
Ste cr Apt #/ Floor
Project Name (if appllcable)_
CONTRACTORS DESIGNER INFORMATION
❑ Check if Owner /Builder (See Page 3)
Contractor License No. G! C- D q (SZS
Workers' Comp No.Iee.�{t�
Company ygdL oeemY /-eraWL A4•1r5
Address 74 `vl (' e4,,
City JState _FY- Zip 3MI
Phone 4c:'Ia -Lft5cf Fax 866•(ot0•foodv
Cell 4;0-7-10-41,5q
Email olc(�lti�dn mot •c�c�
Architect/Engineer's Name
Address
RIB PERMIT EXPEDITERS ONLY (for permit pick-up]:
Contact Name
Phone Ex
Cell
Fee Simple Tille Holder (if other than owner)
Address City Stale Zip
Mortgage Lender Bonding Company
Address Address
City State Zips City Stale Zlp
DESCRIPTION OF PROPOSED IMPROVEMENTS
Description of the proposed work (New Construction, Addition, Interiar/ExtedorAlleration, Wlndows/Doors, etc.)
Nvc�j cON sutwCT10 N : Voi"LT1cM, Axi S wioD -t-dfm NF ON PoLe
Is this a City or Re -hab project? ❑ Yes I(No Is the building served with an automatic fire sprinkler system? ❑ Yes 0 No
Current Use or Occupancy 1 ?fy,IDW-Z"I AL Is this a change in the Use or Occupancy? ❑ Yes 4 No
For Impact Fee Credit, Existing or Previous Structure Demolished? []Yes ❑ No
Type of Structure Demolished: ❑ SFR ❑ Commercial ❑ Commercial Accessary Building
PLEASE CHOOSE ONE OF THE FOLLOWING:
NEW CONSTRUCTION 8 ADDITIONS - FEE SCHEDULE I'
TOTAL COST OF CONSTRUCTION TO INCLUDE:
STRUCTURAL, ROOFING, ELEC, MECH, PLBG
S
NOTE:
OTHER ASSOCIATED TRADES TO BE FEE'0 SEPARATELY
UNDER FEE SCHEDULE II OR III.
THESE INCLUDE: LOW VOLTAGE, HOOD/SUPPRESSION
SYSTEM, FIRE SPRINKLERS, IRRIGATION, LANDSCAPING,
PAVING, ETC.
-1-
MISCELLANEOUS PERMITS- FEE SCHEDULE II'
ALTERATIONS 8 GENERAL CONSTRUCTION- SCHED. III'
TOTAL COST OF CONSTRUCTION: $ I SPa
COST OF CONSTRUCTION WITHOUT TRAD
6 /D1 IHO
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
R MAI
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 Ihs
30 years
58 dB @20'
Aurora PVI 6000
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MEMORANDUM
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: March 31, 2014
urban
design
ki Ida
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: \JO6S\Gulf Stream-94-012\2520 Avenue Au Solei112520 Avenue Au Soleil Solar Sandwich Appeal Staff LCC35
Report.doc
Mr. William Thrasher February 14, 2014
2520 Avenue Au Soleil Solar Sandwich Roof System 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.
u 14 & RTIT-Ark U11TETA
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: March 31, 2014
k i a(
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
LCC35
H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soleil Solar Sandwich Appeal Staff
Report.doc
Mr. William Thrasher February 14, 2014
2520 Avenue Au Soleil Solar Sandwich Roof System 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
kild
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 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: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soliel landscaping memo -doc
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 (Rhapis 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: Marty R.A. Minor, AICP
DATE: November 7, 2012
RE: 2520 AVENUE AU SOLEIL
- CONFIRMATION OF PROVIDED PHOTOS
urban
design
kiIda
y
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 anytime.
Sincerely,
Marty R.A. Minor, AICP
Senior Planner
Urban Design Kilday Studios
H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil\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.UDKstudlos.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
urban
design
k� I dau
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 anytime.
Sincerely,
Marty R.A. Minor, AICP
Senior Planner
Urban Design Kilday Studios
KUOB&Gulf Stream-94-01Z2520 Avenue Au Soleilt2520 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.UDKstudlos.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
77�
ki iac
STUDIO
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
LCC35
H: \JOBS \Gulf Stream _94- 012 \2520 Avenue Au Soleil \2520 Avenue Au Soliel Solar Sandwich Roof System
Memo 021414.doc
Mr. William Thrasher February 14, 2014
2520 Avenue Au Soleil 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
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
u
ki I d
STUDIOS
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 5oleil 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
forthe solarsandwich roof system. These issues are:
H:IJOBS \Gulf Stmam_94- 012\2520 Avenue Au Solei1\2520 Avenue Au Soliel Solar Sandwich Roof System
Memo 021414.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 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
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: January 7, 2014
RE: 2520 AVENUE AU SOLEIL
- WINDMILL PERMIT APPLICATION
ki ia(4
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 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.UDKstudios.com
LCC35
H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soliel Windmill Application review.doc
MEMORANDUM
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: January 7, 2014
RE: 2520 AVENUE AU SOLEIL
- WINDMILL PERMIT APPLICATION
urban
design
k a
�
Id
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 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:WOBS1GuH Stream-94-01Z2520 Avenue Au Soleih2520 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
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
kild
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.UDKstudlos.com
H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil \2520 Avenue Au Soliel Windmill Application Revised LCC35
012414.doc
Mr. William Thrasher
2520 Avenue Au Soled 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 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.
MEMORANDUM
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:WOBS \Gulf Stream-94-012\2520 Avenue Au Soleil\2520 Avenue Au Soliel Windmill Application Revised LCC35
012814.doc -
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 Soleil 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.
MEMORANDUM
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: January 28, 2014
RE: 2520 AVENUE AU SOLEIL
- WINDMILL PERMIT APPLICATION - REVISED
• 0
ki I da
STUDIOS
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:
Tower Height and neighborhood character
H: \JOBS \Gulf Stream-94-012\2520 Avenue Au Soleil\2520 Avenue Au Soliel Windmill Application Revised
012414.JB.doc
477 S. Rosemary Avenue
Suite 225 - The Lofts at CltyPlace
West Palm Beach, FL 33401
561.366.1100 561.366.1111 fax
www.UDKstudios.com
LCC35
Mr. William Thrasher
2520 Avenue Au Soleil Wind Turbine
January 28, 2014
Page 2
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.
While it is not necessary that the Future Land Use Map
Mr. William Thrasher
2520 Avenue Au Soleil Wind Turbine
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 Soleil 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 Soled neighborhood and is not
consistent with the Town's Comprehensive Plan. As such, the application is recommended
to be denied.
MEMORANDUM
TO: William Thrasher
Town Manager
FROM: Marty R.A. Minor, AICP
DATE: January 28, 2014
RE: 2520 AVENUE AU SOLEIL
- WINDMILL PERMIT APPLICATION -REVISED
ki I da
STUDIOS
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 CltyPlace
West Palm Beach, FL 33401
561.366.1100 561.366.1111 fax
www.UDKstudlos.com
H:WOBS1Gult Stream-94- 01212520 Avenue Au SoleI112520 Avenue Au Shcel Windmill Application Revised LCC35
012814.doc
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 accessary 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 Soleil 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.
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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: 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(@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(@,,udkstudios.com
Cc: Mike Piper <piperna jambe.com>, Chris Steams <steams(a jambg.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 -0100 Ext: 2910
Email: williams(@jambg.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 -oloo Ext: 2910
Email: williams(@jambg.com
LAW OFFICES
JOIINSON, ANSELMO, MURDOCII, BURKE, PIPER & HOCHMAN, P.A.
A PROFESSIONAL. ASSOCIATION
DAMIAN H. ALBERT, P.A.
W. HAMPTON JOHNSON IV
SCOTT D. ALEXANDER, P.A.
2455 EAST SUNRISE BOULEVARD
J. MARCOS MARTINEZ
CHRISTOPHER AMBROSIO. P.A.
SURE 1000
FORT LAUDERDALE. FL 33304
ROBERT E. MURDOCH
MICHAEL T. BURKE'
MICHAEL R. PIPER'
HUDSON C. GILL, PA.
DAVID M. SCHWEIGER, P.A.
JEFFREY L. HOCHMAN, PA.
CHRISTOPHER L. SMITH
E. BRUCE JOHNSON
(954)463.0100 BraWaM
CHRISTOPHER J. STEARNS, P.A.
(305) 945$000 Dada
(561) 640 -7446 WPB
AFOam
TELECOPIER (954) 453 -2444
RONALD P. ANSELMO
'aaaaurcmnaurnac fa+nc uxnu
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.
PLAINTIFF'S RESPONSE TO MOTION TO DISMISS OF MARTY MINOR
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 Sled 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 tiled 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 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 of5
Case 9:13 -cv- 81053 -KLR Document 55 Entered on FLSD Docket 04/02/2014 Page 2 of 5
2197, 2200, 167L. 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 alsg
GSW. Inc. v. Long Count., 999 A2d 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. Twomb(y, 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. Cily of Starke, 201I U.S. Dist. LEXIS 30148,4-5 (M.D. Fla.
Feb. 9, 2011) a" Ashcroft y. Iabal, 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 TN 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 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 oa legal, equitable, or maritime grounds." Therefore,
even if Plaintiff may not ultimately recovered duplicative damages, Plaintiffs may state multiple,
alternative grounds for relief. -a; 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 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
RI &I
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 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 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 Counly jj(ingh, 506 U.S. 56 (1992) Marty Minor provided
advice and information to the Town which directly interfered with the Plaintifrs 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
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. -W. If the Court has any doubt, it must deny the Motion. j(, 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 Do If 9 13 EWA I •
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, PA-
2455 East Sunrise Boulevard, Suite 1000
Fort Lauderdale, Florida 33304
Telephone.: (954) 463 -0100
piper@jambg.com
stearns@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, P.C.
2146 E. Huntingdon SL
Philadelphia, PA 19125
Tel: 561 -758 -1223
Fax: 215-893-3641
Pennsylvania Bar No. 314500
Attorney for Plaintiff
5of5
LAW OFFICES
JOIINSON, ANSELNIO, MURDOCII, BURKE, PIPER & HOCIINIAN, P.A.
A PROFESSIONAL ASSOCIATION
DAM!AN H. ALBERT, PA.
W. HAMPTON JOHNSON IV
SCOTT D. ALEXANDER, PA.
BOULEVARD
2455 EAST SUNRISE BOULEVARD
MARCOS MARTINEZ
CHRISTOPHER AMBROSIO, P.A.
SURE 1E
ROBERT E. MURDDCH
MICHAEL T. BURKE •
FORT LAUDERDALE, FL 77704
MICHAEL R. PIPER'
HUDSON C. GILL, P.A.
DAVID M. SCHWEIGER, P.A.
JEFFREY L. HOCHMAN, PA
CHRISTOPHER L. SMITH
E. BRUCE JOHNSON
(954)4634100 Brwlard
CHRISTOPHER J. STEARNS, P.A.
(305) 945 -2000 Dada
(561) 6467448 WPB
TELECOPIER (9541463-2444
RONALD P. ANSELMO
•naavo[mm�rncnatrausuxTrxa
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.
s allimia Klio 1 11 11flo 1 LM11 Oki t ta Waal le(e).4
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. Fricksnn 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 Fed.R.Civ.P. 12(d). See also,
SSW. Inc. v. Long oun% Ga., 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 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. Cily of Starke, 2011 U.S. Dist. LEXIS 30148, 4 -5 (M.D. Fla.
Feb. 9, 201 l) 4J1" Ashcroft v. Iabal, 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
MWOR'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.
0111uK9YMV -XfflA LAR&M
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, _a; 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 v. Katz 533 U.S. 194 (200 1) 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 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 bow 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 PLSD Docket 04/02/2014 Page 5 of 5
u, I 11
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 CounW, F 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. a 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. 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
stearns @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, P.C.
2146 E. Huntingdon St.
Philadelphia, PA 19125
Tel: 561 -758 -1223
Fax: 215-893-3641
jrohoyleQirolaw.com
Pennsylvania Bar No. 314500
Attorney for Plaintiff
5 of 5
Louis L. Roeder, Esq.
7414 Sparkling Lake Rd
Orlando, FL 32819
407 - 352.4194
cell 407 - 7584194
Iou@loumeder.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 An 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 #I1- 135146 has been renewed by the City of Delray Beach and is currently
active.
Therefore this alleged 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 1540 Avenue An Soleil (as well
as the southeast of 2520 Avenue An Soleil, the O'Hare's 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 2540 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
Staadatd front setbades, large rights -of -way
Photo franc 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
Soled 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, if
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 Au 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,
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: Gulfstream - 2516 Ave. Au Solel
Date: Wednesday, March 26, 2014 9:20:18 AM
That is what I was looking for. Thanks!
Sent from my Phone
On Mar 25, 2014, at 4:15 PM, "Nicole Simpson" <nsimpson(@udkstudios.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, 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
nsimr)son@udkstudics.com
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 Solei
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" <nsimpson(@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 ?)
http, / /www.rlea nenereva uthority.com /cola r -e nergy- news /e n glert-
introduces -pv- solar- hot -wat r- roof -t 10911/
This website gives you solar incentives and rebates by state, county, city
and utility as well as federal government solar incentives and rebates:
httn : / /www.cleanenergyanthority.rom /solar- rebates - and -in ntiv s/
California is providing incentives to businesses and home owners to go
solar through a program they are trying to implement by 2016
httr)i//www.izosolarcalifornia.ca.goy/about/index.ahn
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
nsimnson audkstudios.com
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
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Kelly Avery
From: Bill Thrasher <bhrasher @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 r mailto :bthrasher(algulf- stream.org]
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 fmailto :MMinor(d)udkstudios.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
Soleil. 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
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
nwauuvx 1CM.ne,
John C. Randolph Attorney
Direct Dial: 561.650.0458 1 Fax: 561.650.5300 1 jrandolph@jonesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
Flagler Center Tower, 505 South F1agler Drive, Suite 1100, \\ c;r Palm Beach, Florida 33401
561 -659- 3000 1 www.jonesfoster.com
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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 Soleil. After reviewing
the code, I don't believe this use is allowed.
Within the Place Au Soled 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
urL.A�I 1 The Offices at CityPloce North ph. (561) 366.1100
dac 477 S. Rosemary Avenue. Suite 225 f. (561) 366.1111
esign West Palm Beach, Florida 33401 www.udksludios.com
ki(dm .
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.
1lJrjspl2\ apps \dots \13147\00001\mem \ihv2940 docx
D RECEIVED
MAR 13 2014
Town of Gulfstream Fl.
APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING
& BUILDING ADMINISTRATOR
Dale orApplicalion
It.
3/12114 Fee: $400.00
Project Information
Owner Name: Christophe . O'Hare
Owner Signature:
Project Address: 2516 Avenue Au Soleil, 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- 136066 to install a 'solar-sandwich' metal roof (as
ALLOWED under Sections 163.04 FS, 163.08 FS & 193.624 FS,
espedafly 163.04(1) - see copy of origkW permit application and
relevant regulations a(fadled).
Final Action of Planning & Building Administrator Feb 14, 2014 denial of
our Feb 5, 2014 request to install a 'solar- sandwich' metal roof (see
attached e-mail from Freda Dafosse, Town of Guff Stream, & a copy of
our original permit apAftiion)
111. 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 be Addressed by Applicant:
(1) Acted in a manner inconsistent with the provisions or this Code or other
applicable local, state or rcdeml law;
Building Administrators denial is contrary to Sections 163.04 FS,
163.08 FS & 193.624 FS (copies aftached).
(2) Made erroneous findings of fact based 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.D4, 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:
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