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PRR 15-2066
From: Chris O'Hare [mailto:chrisoharegulfstream@gmail.com] Sent: Wednesday, November 25, 2015 8:33 AM To: Bill Thrasher <bthrasher@gulf-stream.org> Subject: URGENT -Public Record Request - discovery of evidence for Code Hearing of 12-4-15 Dear Custodian of Records, This email is a singular request for a public record. I request these records in order to prepare for the Code Enforcement Hearing against me scheduled for Dec. 4th, 2015. 1 feel it is important that I be able to inspect these records in a timely manner in order to be adequately prepared to defend myself at this quasi-judicial hearing. Please provide these records for my inspection no later than Tuesday, Dec 1 st. Before making this public record request, I first searched the public records portion of your agency's website hoping I could locate the public records I seek without having to trouble you for it. Unfortunately I can not find the records I wish to examine. I request you provide for my inspection the public records which are: ALL records the Town intends to present to the Special Magistrate during the Code enforcement hearing against O'Hare scheduled for Dec. 4, 2015. ALL records that support, reference or are related to the records the Town intends to present to the Special Magistrate during the Code enforcement hearing against O'Hare scheduled for Dec. 4, 2015. All staff reports, consultant reports, photos, communications and any other records that related to the property located at 2520 Avenue Au Soleil AND the alleged violations that are the subject of this hearing. All communications between the Town* and anyone else (including communications between Town entities) which wholly or partly concern this hearing or the alleged violations. *The word Town as used herein means anyone who works for the Town or who holds an elected or appointed position with the Town including Commissioners, the Mayor, all Town employees and the entity that claims to be the Town Attorney. I make this request pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes. Please respond to this public record request in a singular manner and do not combine this public record request with any other public record requests when responding to this request. If this record once existed and has since been destroyed, please provide the disposition record associated with its destruction. 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 6119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by 6119.07(1)(f) of the Florida Statutes. Please take note of $119.07(1)(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 the 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 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 6119.01(2)(f), Florida Statutes. Please provide only those records for inspection that do not require extensive use of information technologies or extensive staff time or both in excess of 15 minutes. Take note of §119.07(4)(a)3.(d) Florida Statues and if you anticipate that any records exist, the production for inspection of which will require extensive use of information technologies or extensive staff time or both in excess of 15 minutes, then please provide those records that can be produced within the first 15 minutes and advise me of the cost you anticipate to be incurred by your agency for the remaining records prior to incurring this cost. Please do not incur any costs on my behalf without first obtaining my written authorization to proceed. If you anticipate the need to incur any costs that I would be statutorily required to pay in order to inspect these public records which would exceed $1.00 please notify me in advance of your incurring that cost 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. Again, please do not incur any costs on my behalf without first obtaining my written authorization to proceed. I hereby reserve all rights granted to me under the Florida Constitution and Florida Statutes. All responses to this public records request should be made in writing to the following email address: chrisoharegulfstream(cDgmail.com Gulf Stream, FL Code of Ordinances Page 1 of 1 Sec. 42-29. - Construction abandonment. All authorized construction shall be completed prior to the expiration of the building permit issued by the county. The expiration of a building permit shall be prima facie evidence that the building project has not commenced or has been abandoned. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2. Article III, Division 2, of this Code. Failure to restore the site to its preconstruction conditions, including removal of all structural improvements and placement of sod on all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the permit expires. (Ord. No. 00-1, 51, 3-10-00) Editor's note— Ordinance No. 03-13, §1 adopted October 10, 2003, repealed § 42-29. Formerly, such section pertained to approval of supplier of water prior to permit issuance and derived from § 4-6 of the 1978 Code. Subsequently, § 2 of same ordinance renumbered § 42-30 as § 42-29 about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances DIVISION 2. - CODE ENFORCEMENT FOOTNOTE(S): --- (4) --- State Law reference— Code enforcement, F.S. ch. 162. Sec. 2-66. - Title. Page 1 of 7 This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf Stream, Florida." (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-67. - Special magistrate term. (a) There is hereby established a special magistrate who shall be designated by the town commission. (b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve in an ex -officio capacity if the special magistrate serves other local governments as a special magistrate. Such service to other local governments does not create duties inconsistent with serving as special magistrate to the Town of Gulf Stream. (c) The special magistrate shall be an attorney and a member of the Florida Bar. (d) The special magistrate shall serve at the pleasure of the town commission. (e) The special magistrate shall preside over code enforcement matters scheduled to be heard from time to time. (f) Minutes shall be maintained at all hearings presided over by the special magistrate; all hearings shall be open to the public. The town shall provide clerical and administrative personnel as may be required by the special magistrate for the proper performance of his/her duties. (g) The town attorney or his/her designee shall represent the town by presenting cases before the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) State law reference— Special magistrates, F.S. § 162.03. Sec. 2-68. -jurisdiction. (a) The special magistrate shall have the jurisdiction and authority to hear and decide any alleged violations of the following chapters of the Code and ordinances of the town as the same may be amended from time to time: (1) Chapter6 Animals; (2) Chapter 10. Businesses, Professions and Occupations; (3) Chapter 18. Emergency Systems; (4) Cha tp er 22, Nuisances; (5) Chapter 26. Offenses; (6) Cha tp er 38. Waterways; (7) Chapter 42. Buildings and Building Regulations; (8) Chapter Marine Facilities, Structures and Places; and about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 2 of 7 (9) Chapter 66. Zoning. (10) Chapter 70. Design Manual. (b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option of the administrative official bearing responsibility for enforcement of that respective code or ordinance. (Ord. No. 06-02, 51, 5-5-06) Sec. 2-69. - Enforcement procedure. (a) An employee of the town who is duly authorized by the town manager and responsible for the enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may initiate code enforcement proceedings and issue citations or notices of violation to a person or persons to appear in front of the special magistrate when the code enforcement officer, upon personal investigation, has reasonable cause to believe that the person or persons are in violation of the codes cited in this division. Employees who may be designated as code enforcement officers may include but are not limited to, code inspectors, law enforcement officers, public works inspectors, fire safety inspectors, and zoning inspectors. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsection (c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in section 2-75 to the violator. At the option of the special magistrate, notice may additionally be served by publication or posting as provided in section 2-75. If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing, the notice shall so state. (c) If a repeat violation is found, the code inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing and shall provide notice pursuant to section 2-75. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been corrected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate. A repeat violation is a violation of a provision of a code or ordinance by a person whom the special magistrate has previously found to have violated the same provision within five years prior to the violation. (d) If the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator and may immediately notify the special magistrate and request a hearing. (Ord. No. 06-02, 51, 5-5-06) about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances State law reference— Similar provisions, F.S. § 162.06. Page 3 of 7 Sec. 2-70. - Conduct of hearings. (a) At the hearing, the burden of proof shall be upon the town to show by substantial competent evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of hearing has been given to the respondent, either as actual notice or as provided herein, a hearing may proceed in the absence of the respondent. (b) All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply. Irrelevant, immaterial and unduly repetitious evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible at a trial in the courts of the state. Documentary and physical evidence may be admitted. (c) The special magistrate may inquire of any witness who is testifying before him/her. The respondent, or his attorney and the town attorney and his/her designee shall be permitted to inquire of any witness before the special magistrate. The special magistrate may call any witness deemed necessary to provide a full and fair hearing of the case. (d) At the conclusion of the hearing, the special magistrate shall issue findings of fact based on evidence on the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order shall be stated orally at the meeting, and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. In the event the town prevails in prosecuting a case before the magistrate, it shall be entitled to recover all costs incurred in prosecuting the case before the special magistrate and such costs may be included in the lien authorized under section 2-72 of this chapter. Administrative costs, for purposes of this section, shall be $150.00. The order entered by the magistrate shall include, in the event of noncompliance, a finding of noncompliance, that the violator is required to pay the town administrative costs in the amount of $150.00, that the order must be complied with by a specified date and that a fine, as well as the cost of repairs, may be imposed if the order is not complied with by such date. The administrative costs shall be due regardless of whether the order is complied with by the requisite date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers or successors in interest or assigns. (Ord. No. 06-02, § 1, 5-5-06,• Ord. No. 09-6, § 1, 11-13-09) State law reference— Similar provisions, F.S. § 162.07. Sec. 2-71. - Powers. The special magistrate shall have the power to: (1) Adopt rules for the conduct of his/her meetings and hearings. (2) Subpoena alleged violators and witnesses to his/her hearings. (3) Subpoena evidence as necessary for his/her hearings, including, but not limited to physical and documentary evidence such as records, surveys, plats and photo -graphs. (4) Take testimony under oath. (5) aboutblank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 4 of 7 Issue orders having the force and effect of law which can command whatever steps are necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondent(s) within ten working days thereafter. (6) Establish and enforce fines pursuant to section 2-72 (7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which remain unpaid after a period of three months. (8) Authorize the reduction of any fine he/she has imposed. (Ord. No. 06-02, 5 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.08. Sec. 2-72. - Administrative fines, costs of re -pair; liens. (a) The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the special magistrate. In addition, if the violation is a violation described in subsection-2-U(d) of this division, the special magistrate shall notify the local governing body, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation has been made as provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be irreparable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b), below. (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation, and shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of repairs pursuant to subsection (a), above. However, if the special magistrate finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation. (c) In determining the amount of the fine, if any, the special magistrate shall consider the following factors: (1) The gravity of the violation; (2) Any actions taken by the violator to correct the violation; and (3) Any previous violations committed by the violator. (d) A certified copy of an order imposing a fine may be recorded in the public record and thereafter shall constitute a lien against the land on which the violation exists, and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a courtjudgment except for enforcement purposes. A fine imposed pursuant to this section shall continue to accrue until the violator comes into compliance or until a judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town and the town may execute a satisfaction or release of a lien entered pursuant to this section. After three months from the filing of any such lien which remains about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 5 of 7 unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created pursuant to the provisions of this section may be foreclosed on real property which is a homestead under Section 4, Article X of the State Constitution. (Ord. No. 06-02, 5 1, 5-5-06) State law reference— Similar provisions, F.S. § 162.09. Sec. 2-73. - Duration. No lien provided under this division shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee, that it incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. (Ord. No. 06.02, 5 1, 5-5-06) State law reference— Similar provisions, F.S. § 162.10. Sec. 2-74. -Appeals. An aggrieved party, including the town, may appeal a final administrative order of the special magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the special magistrate. The appeal shall be filed within 30 days of the execution of the order to be appealed. (Ord. No. 06-02, 51, 5-5-06) State law reference— Similar provisions, F.S. § 162.11. Sec. 2-75. - Notices. (a) All notices required by this section shall be provided to the alleged violator by certified mail, return receipt requested; by hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the local governing body; or by leaving the notice at the violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice. (b) In addition to providing notice as set forth in this section, at the option of the special magistrate, notice may also be served by publication or posting, as follows: (1) Such notice shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Palm Beach County, Florida. The newspaper shall meet such requirements as are pre -scribed under F.S. ch. 50 for legal and official advertisements. (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. (3) In lieu of publication as described in this section, such notice maybe posted for at least ten days in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at town hall. (4) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 6 of 7 include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under this section. (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section, together with proof of publication or posting as provided in this section shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice. (Ord. No. 06-02, 5 1, 5-5-06) State law reference— Similar provisions, F.S. § 162.12. Sec. 2-76. - Procedure to request that a fine or lien imposed pursuant to section 2-72 be reduced; conditions and criteria therefor. (a) The owner of real property against which a fine has been imposed pursuant to section 2-72 may apply to the special magistrate, through the town attorney or his/her designee, for a satisfaction of the fine with less than full payment thereof. No such application shall be considered by the special magistrate until the applicant has first shown that: (1) All ad valorem property taxes, special assessments, town utility charges and other government -imposed liens against the subject real property have been paid. (2) The applicant is not personally indebted to the town for any reason. (3) All town code violations have been corrected under necessary permits issued therefor. (b) In considering an application to reduce a fine or lien imposed pursuant to section 2-72no satisfaction thereof shall be approved by the special magistrate with less than full payment thereof, unless the special magistrate shall make a specific finding that no violation of any ordinance de -scribed in section 2-68 of this Code exists on the subject real property. (c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special magistrate shall be paid on such terms as approved by the special magistrate. (d) If the property for which an application for a fine reduction is being considered is owned by a government or quasi -government entity, the special magistrate may reduce such fine even if the violation has not been corrected. (e) Where recording has occurred and alien filed against the property, any request for a satisfaction of the lien with less than full payment shall be considered by the town commission not the special magistrate. (Ord. No. 06-02, 5 1, 5-5-06) Sec. 2-77. - Provisions supplemental and cumulative. Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or prohibit the town from filing charges against any person, firm or corporation violating any town ordinance as provided by existing laws. This division shall be construed to be supplemental and cumulative with any and all other remedies available to the town and not exclusive. (Ord. No. 06-02,5 1, 5-5-06) State law reference— Similar provisions, F.S. § 162.013. Sec. 2-78. -Alternative code enforcement procedures. about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 7 of 7 The town may employ other methods of code enforcement including, but not limited to, the issuance of a notice to appear in county court or arrest for violation of municipal ordinances as provided for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordinance may be sentenced to pay a fine not to exceed $500.00, and may be sentenced to a definite term of imprisonment not to exceed 60 days, in a municipal detention facility or other facility as authorized by law. (Ord. No. 06-02, 3 1, 5-5-06) about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 1 of 3 Sec. 70-99. - Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 280 or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 2Yz feet) Roof pitches over porches or ancillary structures (under 450 or 1:1 slope) Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped tile in some districts Shed roofs Steep slopes (over 450 or 1:1 slope) Very low pitched roofs (less than 18° or 5:12 slope) about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances (3) Prohibited. Page 2 of 3 Low Slope Under 28° (6:12 slope) Average Slope 28US* (6:12-1�:1) j i j45' Steep Slope Over 45° (l:l slope) Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Soleil Solar panels on the streetside about:blank 12/1/2015 Hi. Gable Shed Discoura ed Flat Prohibited Gambrel (Prohibited) Mansard Prohibited (3) Prohibited. Page 2 of 3 Low Slope Under 28° (6:12 slope) Average Slope 28US* (6:12-1�:1) j i j45' Steep Slope Over 45° (l:l slope) Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Soleil Solar panels on the streetside about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Unnecessarily complex or monolithic roof design All white tile other than flat cement tile (Ord. No. 00-1,§36,3-10-00; Ord. No. 03-9, §Z 10-10-03) Page 3 of 3 about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 1 of 3 Sec. 70-238. - Roofs. (a) Required. Flat, white thru and thru, smooth, un -coated tile and gray slate tile maybe permitted on homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of architectural review and planning board and town commission through the Level III review process, subject to the architectural review and planning board and the town commission making a determination that such alternatives are appropriate for the neighborhood. Gulf Stream- Bermuda style white tile roof (required) (b) Preferred. Combination hip/gable roofs Decorative capped chimney Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Hip roof Low pitched roofs (6:12 slopes) Roof overhang (2-21/2 feet) about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 2 of 3 Simple roof geometry emphasizing long horizontal lines White flat untextured tile a 1 Roof detail showing exposed rafter tails and decorative capped chimney (preferred) (c) Discouraged. Dormers on single story houses Gable Pyramidal hip (often has too steep of slope) Very low pitched roofs (slope less than 5:12) (d) Prohibited. Barrel tiles Front gable except for entry features Gambrel Mansard Monolithic roof design where inadequate measures were taken to reduce massing and height of roof design Pan tiles Shed about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Shingles Tiles other than white flat untextured tiles or gray slate tiles Unnecessarily complex roof geometry (Ord. No. 00-1, 5356, 57,3-10-00,, Ord. No. 11-4, §6,7-13-12) Page 3 of 3 about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances DIVISION 2. - TOWN MANAGER FOOTNOTE(S): --- (3) --- Charter reference— Town manager, § 4.01. Sec. 2-41. - Chief administrative officer. Page 1 of 2 The town manager shall be the chief administrative officer of the town. He shall be responsible to the commission for the administration of all town affairs placed in his charge by or under the town charter or by way of the ordinances of the town or the direction of the town commission. (Ord. No. 89-3, § 1, 5-5-89) Sec. 2-42. - Powers, duties. The town manager shall: (1) Recommend to the town commission the appointment of, and when he deems it necessary for the good of the town, the suspension or removal of all appointive administrative officials provided for by or under the charter or by town commission ordinance; the town commission may accept or reject such recommendations and may make appointments in the absence of such recommendations. (2) Appoint, and when he deems it necessary for the good of the town, suspend or remove, all other town employees. He may authorize any administrative officer who is subject to his direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency. (3) Direct and supervise the administration of all departments, offices and agencies of the town except as otherwise provided by charter or by law. (4) Attend all town commission meetings and he shall have the right to take part in discussion but may not vote. (5) Administer all laws, provisions of the charter and acts of the town commission subject to enforcement by him or by officers subject to his supervision. (6) Prepare and submit the annual budget and capital programs to the town commission. (7) Submit to the town commission and make available to the public a complete report on the finances and administration activities of the town as of the end of each fiscal year. (8) Make such other reports as the town commission may require concerning the operations of town departments, offices and agencies subject to his direction and supervision. (9) Keep the town commission fully advised as to the financial condition and future needs of the town and make such recommendations to the town commission concerning the affairs of the town as he deems desirable. (10) Sign contracts on behalf of the town as directed by the town commission. (11) Perform such other duties as are specified in the charter or ordinances of the town or as may be required by the town commission. (12) about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 2 of 2 The town manager shall represent the town before appointive officers of other governmental bodies except when the town commission shall have designated some other person to act. (Ord. No. 89-3, § 1, 5-5-89) Secs. 2-43-2-55. - Reserved. about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 1 of 2 Sec. 66-80. - Establishment. The planning and building administrator shall be the head of the planning and building department and shall be appointed and serve at the pleasure of the town manager. (Ord. No. 95-1, 5 1, 1-30.95) Sec. 66-81. - Powers and duties. The planning and building administrator shall have the following powers and duties under the provisions of this Code. Any or all of these duties may be delegated to others upon the approval of the town manager. (1) To administer the planning and building department; (2) To serve as staff for the town commission, local planning agency, board of adjustment, architectural review and planning board, and any other boards or committees appointed by the town commission or town manager to investigate or review matters pertaining to the use of land; (3) To review and render interpretations to all provisions of the comprehensive plan and future land use map as provided in section 58-51 of this Code; (4) To review and render interpretations to all provisions of this Code and official zoning map as provided in section 66-180 of this chapter; (5) To undertake the current and long range comprehensive planning responsibilities of the town under F.S. § 163.3161 et seq.; (6) To review the comprehensive plan pursuant to F.S. § 163.3191; (7) To recommend annually any comprehensive plan or future land use map amendments; (8) To recommend annually any necessary amendments to this Code or official zoning map; (9) To accept applications for, review and prepare staff reports recommending approval, approval with conditions, or denial of applications for the following development permits as provided in this chapter: text amendments to the comprehensive plan; amendments to the future land use map; annexations or contractions of the municipal limits; amendments to the text of this Code, amendments to the official zoning map; developments of regional impact or which are subject to review for extra jurisdictional impacts under the provisions of the intergovernmental coordination element of the adopted comprehensive plan; development agreements; subdivisions; variances; special exceptions; levels 2 and 3 architectural/site plan review; land clearing plans; landscape disturbance permits; and signs; (10) To review and approve, approve with conditions, or deny applications for development permits for level 1 architectural/site plan review as provided in division 2 of article V of this Code; (11) To review and approve or deny applications for concurrency determinations as provided in chapter 44 of this Code; (12) To review and approve, approve with conditions, or deny applications for occupational registrations for home occupations as provided in article III of the Gulf Stream Design Manual; about:blank 12/1/2015 Gulf Stream, FL Code of Ordinances Page 2 of 2 (13) To review and approve, approve with conditions, or deny applications for development permits for building permits as provided in sections 42-26 et seq. of this Code; (14) To review and approve, approve with conditions, or deny applications for development permits for certificates of occupancy or certificates of completion as provided in sections -42- 26 et seq. and sections 66-116 et seq. of this Code; (15) To monitor and assist in the enforcement of this Code as provided in section 66-7 of this chapter; and (16) To ensure compliance with conditions of a development permit or development order as provided in section 66-7 of this chapter. (Ord. No. 95-1, § 1, 1-30-95) about:blank 12/1/2015 RETURN RECEIPT Addressed To: Article Christopher O'Hare 2520venue Au Soleil QmrtreAm, FL,33483 199 or V Date Delivered �=ice-15 Agent Signature RETURN RECEIPT Addressed To: Article # Christopher O'Hare 198 2520 Ave. Au Soleil Gulf Stremm, Florida 33483 Signature of Addressee or Date Delivered �gnature a 0 0 Addressed To: Article Il 01111 Date Delivered 'P15 j / X. LJ Addressed To: Article # Mr. or Mrs. Christopher O'Hare 202 2520 Ave. Au Soleil — Gulf Stream, FL 33483 Signature of Addre see or Date Delivered 1 en tore i4 OF DELRAY BEAEH rgp&OOF ri VW 13' Avenue Delray Beach FL 33444 AUG 2 9 2011 243-7200 Fax (561) 243.7221 Town of Gulf Stream, FL Website: mydelravbeach.com / RE -ROOF PERMIT APPLI 'OWN OF GULF STREAM Approv or Permit mitt Initials Date PROPERTY CONTROL M �)) - 3 -jq�_- ot-a-=-m&6 PLEASE PRINT JOB SITEADDRESS PROPERTY OWNER NAAO: J HOME PHONE (� _ PROPERTY OWNER ADDRESS FOR OFFICE STi'DNLY .' BLDG PERMIT It / ROOF PERMIT ✓E S L PERMTrFEE ,C�� PLAN CHECK{ FEE MCR ft ....r•r.• • rr qr• Mr•q.vH •...• APPROVALS ROOF CONT'R (COMPAN Y) NAME ry PLAN —Q.A-.— DATE tl ROOFOVT'RAD➢ SS I�D s� ud .�Gt-P_ _ _ P&Z DATE._ CITY,aq ST ZIP BUS PHONE. :91 1/�UR •�)7��5 CELL -Y 9 e FA'r� u3 ' 1lJUti E _N1AII- �2 NOTE: PERMIT EXPIRES IF WORK IS NOT STARTED WITHIN 180 -DAYS OR IF ACTIVITY LAPSES FOR 180 DAYS PLANS MUST BE ` ON THE JOB SITE FOR ALL INSPECTIONS. cFINAL INSPECTION IS REQUIRED ON ALL PERMITS. PROJECT COST (Labor and Irinterlal) S X knne: NEW CONSTRUCTION Check one. Y SINGLE-FAMILY* _RECOVER OVER EXISTING _REMOVE EXISTING & REPLACE _RIR AIC UNITS (Engineer's Letter Required) (Meth Permit Rcqund) _MULTI -FAMILY *M1IITTGATION REQUIREMENTS Ir SINGLE F 1 YEAR BUILT (check one): (� IBEFORE 41ARCH 2001(Co To #2) 2. HOUSE VALUE: 5 "I `JqS— J— MUSTPROVIDE- (IF $300,000, OR MORE, NOT INCLUDING LAND VALUE, GO TO N3) 3. SUBMITRE-ROOFING WITITGATION TYPE'COLOR OF ROOF MATERIAL REMOVED I NOTE: FOLLOW NiANUFACTURER'S 1 ROOF TYPE (CIRCLE) FLAT SLOPED `l 12 N o ( STATE OF IJNIY DOFF� oCt )itgtzl ' tst _CONTMERCIAL AFTER MARCH 2002 HOME INSURANCE SUhIMARY SHEET OR COPY OF MOST RECENT TAX BILL OR PROPERTYAPPRAISEROFFICE WEBPA}G,E ;DING APPLICATION I OFNIATERIALWS ALLED � (�rl� -JJJJJJ `FOR S� I�ALLAtiONl UCT APPROVAL NUMBER ���_ II -Oy/y4' . 0 /��/� i JyNp 7 G fdCt-.Oa�l �l )D/) OR ALIFIER C NTR. REGISTRATION # WORKERS CONIP# EXE:14P'IS (FID /FEIN) f t Per! tapi Producig ent was acknowledged before me Lhts day Type afktificetienikoducd,* 204L b C (( to +00_751958 'mss^ Stgna;u o 1r`Ota Publta Rvsd 311( a 0 r'a1!,7111 i n+ )«uarc�s DISPLAY THIS CARD IN FRONT OF JOB CITY OF DELRAY BEACH BUILDING PERMIT PERMIT NO. 3 5-1 6 PROJECT ADDRESS: A516 CONTRACTOR: W 4nme, DESCRIPTION OF WORK : YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT. NOTICE: In addition to the requirements of this permit, there may be additional restrictions applicable to this property that may be found in the public records of this county, and there may be additional permits required from other governmental entities such as water management districts, state agencies, or federal agencies. NO INSPECTION WILL BE MADE UNLESS PERMIT CARD IS DISPLAYED WITH THE APPROVED PLANS READILY AVAILABLE CERTIFICATE OF OCCUPANCY MUST BE SECURED BEFORE THIS BUILDING CAN BE USED FOR ANY PURPOSE. DO NOT REMOVE THIS CARD BEFORE COMPLETION INSPECTION (561)243-7218 OR (5611243-7200 1 MEMORANDUM OF UNDERSTANDING 2 3 4 THIS Memorandum of Understanding made this 16th day of November, 2009, by and 5 between the Town Manager of Gulf Stream, 100 Sea Road, Gulf Stream, Florida 33483 6 (hereinafter, "TOWN Manager"); the City of Delray Building Official, 100 NW 1St Avenue, 7 Delray Beach, Florida 33444 (hereinafter, "CITY Official'); and Palm Beach County 8 Building Official, 2300 N Jog Road, West Palm Beach, FL 33411 (hereinafter, "COUNTY 9 Official'). 10 11 12 WHEREAS, the Interlocal Agreement between the Town of Gulf Stream (TOWN) and Palm 13 Beach County (COUNTY) for permitting and inspection services within the TOWN has been 14 terminated by the TOWN, as of November 15, 2009; and 15 16 WHEREAS, the TOWN has entered into an Interlocal Agreement with the City of Delray Beach 17 (CITY) for permitting and inspection services to be effective immediately after the agreement 18 with the COUNTY terminates; 19 20 WHEREAS, the TOWN, CITY and COUNTY desire to enter into an agreement to provide for the 21 transition of submission, review, processing and action upon building permit applications 22 (Applications) in the TOWN for submission and until completion for review, processing and 23 action as outlined below; and 24 25 NOW, THEREFORE, in consideration of the mutual promises contained herein and other good 26 and valuable consideration, the receipt of which is hereby acknowledged by all parties, the 27 TOWN Manager, CITY Official, and COUNTY Official agree as follows: 28 1. Building permit applications for proposed development within the TOWN will be 29 processed as follows: 30 a. COUNTY Official will cease the acceptance of all Applications for development 31 within the TOWN effective November 15, 2009. 32 b. CITY Official will accept all Applications for development within the TOWN after 33 November 15, 2009. 34 2. Applications within the TOWN will be issued as follows: 35 a. COUNTY Official will continue to approve (or where appropriate, deny) 36 Applications for development within the TOWN for those Applications submitted 37 prior to November 15, 2009. 38 b. COUNTY Official may approve (or where appropriate, deny) Applications for 39 development within the TOWN on or after November 15, 2009 where all of the 40 following circumstances exist: 1 UABuilding Administration\badminl\lntedocal Agreements\Town of Gulf Stream -Memorandum of Understanding - 11-12-09.docx 1 i. The COUNTY Official received the Applications prior to November 15, 2009. 2 ii. The COUNTY Official is willing to provide all plan review and construction 3 inspection services with the necessary plan review and/or inspection tasks 4 being performed by properly certified plans examiners and/or inspectors 5 who are COUNTY employees certified in accordance with State Law and 6 the Florida Building Code. 7 c. CITY Official will not act upon any Application for development within the TOWN 8 prior to November 15, 2009. 9 d. CITY Official will be empowered to act upon any Application for development within 10 the TOWN after November 15, 2009. 11 3. Inspections for approved Applications will be performed as follows: 12 a. COUNTY Official will perform all required inspections for all approved Permits 13 approved by the COUNTY, provided that the Permits are issued prior to November 14 15, 2009, or after November 15, 2009 in accordance with paragraph 2.b. above. 15 b. COUNTY Official will provide the CITY Official with a list describing all open and 16 active COUNTY Permits as of November 15, 2009, as well as a list of all pending 17 Applications that the COUNTY intends to issue Permits pursuant to paragraph 2.b. 18 above, on or after November 15, 2009. 19 C. COUNTY Official will notify the CITY Official upon final inspection for Permits on the 20 open/active lists (see 3.b. above) as the final inspections are completed and 21 approved by the COUNTY. 22 d. CITY Official will perform required inspections for all approved Applications issued 23 by the CITY Official on or after November 15, 2009. 24 4. TOWN Manager, CITY Official, and COUNTY Official agree that the building code 25 amendments applicable to any Applications shall be the building code amendments of the 26 authority (either the CITY or COUNTY) having jurisdiction on the date that an Application 27 is filed. Therefore all Applications received by the COUNTY before November 15, 2009 28 shall be subject to the COUNTY building code amendments applicable to any 29 Applications. All Applications filed on or after November 15, 2009 shall be subject to 30 CITY building code amendments applicable to any Applications. 31 5. COUNTY Official will not renew inactive permits after November 15, 2009. After that 32 date, applicants will be directed to the CITY for necessary permitting and inspection 2 UABuilding Administration\badminl\Interlocal Agreements\Town of Gulf Stream -Memorandum of Understanding - 11-12-09.docx 1 services, and to the TOWN for purposes of securing any record copy of construction files. 2 The CITY will handle these Applications in accordance with their normal procedures. 3 6. All contractors holding an Annual Permit for the decal and random inspection program for 4 residential component replacements shall be permitted to complete the duration of their 5 Annual Permits in the program. In no case shall this program apply to any work after 6 December 31, 2009, the end date of the 2009 Annual Permit for Random Inspections. 7 7. COUNTY agrees to provide the TOWN and CITY with the following additional records: 8 a. A list of all COUNTY issued, and open permits (including inspection history) within the 9 TOWN for one calendar year prior to November 15, 2009. 10 b. A list of all inactive permits within the TOWN, for inclusive dates agreed upon by the 11 TOWN Manager, and CITY and COUNTY Officials, with information, including the 12 inspection history for use in determining if code violations exist. 13 8. The Building Officials of both jurisdictions will communicate and work with each other to 14 ensure that active permits are properly inspected and that appropriate records are kept 15 and made available to the public in accordance with all applicable regulation, laws or 16 ordinances. 17 9. This Agreement shall become effective at the time the last party to execute this document 18 executes same, and shall terminate at such time as the County Official completes all 19 inspections pursuant to this Agreement and issues all certificates of occupancy and/or 20 certificates of completion on any Applications accepted by the County Official pursuant to 21 this Agreement. 22 IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on the day and 23 year written above. 24 Witnesses: TOWN MANAGER „C7� t/�25 By: � 26 William H. Thrasher, Town Manager Town of Gulf Stream 27 Witnesses: 28 29 30 31 32 CITY BUILDING O - IAL George Diaz, City Building Official City of Delray Beach COUNTY BUILDING OFFICIAL By: �� Rebecca D. Caldwell, County Building Official Palm Beach County 3 U:\BuildingAdministration\badminl\lnterlocaI Agreements\Town of Gulf Stream -Memorandum of understanding- 11-12-09.docx Gulf Stream Police Department 246 Sea Road Gulf Stream, FL 33483 Phone: (561) 278-8611 Fax: (561) 276-2528 Page I of I _ NON CRIMINAL OFFENSE REPORT Incident Type: POLICE SERVICE Location of Incident: 2520 AVE. AU SOLEIL Name: CHRISTOPHER OHARE Race: WHITE Home Address: 2520 AVE AU SOLEIL GULF STREAM FL 33483 Zone: Processed By: 1 Complaint Number: 15-2038 OFC TODD SUTTON Officer Killed/Assaulted: NO OTHER Sex: MALE INCIDENT SUMMARY ON THE ABOVE DATE AND TIME I DELIVERED ARTICLE #202 TO MR. CHRISTOPHER O'HARE AT 2520 AVE. AU SOLEIL. NOTHING FURTHER. GULF STREAM FL 33483 Type of Premises: RESIDENCE -SINGLE FAMILY Time of Call: 1920 Time of Arrival: 1920 Time Completed: 1925 Officer Injured: NO Date/Time Reported: 11/14/2015 19:20 Occurred From: Domestic: NO Juvenile Involved: NO Reporting Officer: OFC. TODD SUTTON Name: CHRISTOPHER OHARE Race: WHITE Home Address: 2520 AVE AU SOLEIL GULF STREAM FL 33483 Zone: Processed By: 1 Complaint Number: 15-2038 OFC TODD SUTTON Officer Killed/Assaulted: NO OTHER Sex: MALE INCIDENT SUMMARY ON THE ABOVE DATE AND TIME I DELIVERED ARTICLE #202 TO MR. CHRISTOPHER O'HARE AT 2520 AVE. AU SOLEIL. NOTHING FURTHER. ��1 1 4 d 1 9 - ��I ; v - z r e d T o w n o f G u l f S t r e a m A r T , 1 0 0 S e a R o a d G u l f S t r e a m , F L 3 3 4 8 3 B u i l d i n g P l a n n i n g a n d Z o n i n g D e p a r t m e n t P h . ( 5 6 1 ) 2 7 6 - 5 1 1 6 ( 5 6 1 ) 7 3 7 - 1 C O D E E N F O R C E M E N T S P E C I A L M A G I S T R A T E F a x 8 8 T O W N O F G U L F S T R E A M , F L O R I D A C A S E N O : C E 1 5 - 1 1 1 - 1 0 - 1 5 S T A T E M E N T O F V I O L A T I O N A N D N O T I C E O F H E A R I N G P u r s u a n t t o s e c t i o n 2 - 7 5 o f t h e T o w n o f G u l f S t r e a m C o d e o f O r d i n a n c e , t h e u n d e r s i g n e d h e r e b y g i v e s n o t i c e o f u n c o r r e c t e d v i o l a t i o n ( s ) o f t h e T o w n o f G u l f S t r e a m C o d e ( s ) m o r e p a r t i c u l a r d e s c r i b e d h e r e i n , a n d r e q u e s t s a P U B L I C H E A R I N G b e f o r e t h e C O D E E N F O R C E M E N T S P E C I A L M A G I S T R A T E o f t h e T o w n . 1 . L o c a t i o n / A d d r e s s w h e r e v i o l a t i o n ( s ) e x i s t ( s ) : 2 5 2 0 A v e n u e A u S o l e i l , G u l f S t r e a m , F I 2 . L e g a l D e s c r i p t i o n : L o t 3 6 , P l a c e A u S o l e i l S u b d i v i s i o n 3 . N a m e a n d a d d r e s s o f o w n e r / p e r s o n i n c h a r g e w h e r e v i o l a t i o n ( s ) e x i s t ( s ) : C h r i s t o p h e r F . O ' H a r e a n d S h e l l e y L . C . O ' H a r e , 2 5 2 0 A v e n u e A u S o l e i l , G u l f S t r e a m , F L 3 3 4 8 3 4 . V i o l a t i o n o f T o w n C o d e S e c t i o n ( s ) a n d d e s c r i p t i o n ( s ) S e c . 4 2 - 2 9 C O N S T R U C T I O N A B A N D O I Z E N T F a i l e d t o c o m p l e t e c o n s t r u c t i o n w i t h i n t h e t i r n e * t r a m e o t B l d g . e r t n i e c . 0 - 2 3 8 R O O F S c a l l s f o r f l a t , w h i t e t h r u & t h r u , s m o o t h , u n - c o a t e d t i l e b u t n o t i l e h a s b e e n p r o h i b i t s i n c o n s i s t e n t r o o f i n g m a t e r i a l s v i s i b l e f r o m e x t e r i o r o f p r o p e r t y o r w i t h a n y o t h e r h o u s e u r M . M . T h e n a t e r i a i t a t h a s b e e n V i s t a l e d t s t r i v t o l a t t o n o f t h i s s e c t i o n . ( S E E A T T A C H E D " E X H I B I T S O F V I O L A T I O N " ) 5 . D a t e o f F i r s t I n s p e c t i o n : J u l y 1 7 , 2 0 1 5 6 . D a t e o w n e r f i r s t n o t i f i e d o f v i o l a t i o n ( s ) : A u , - t - 1 4 2 0 1 5 7 . D a t e o n / b y , w h i c h v i o l a t i o n s a r e t o b e c o r r e c t e d : S e p t e m b e r 1 4 , 2 0 1 5 * * * * * * * * * * * * * * * * * * * * * * * * * * * I M P O R T A N T N O T I C E * * * * * * * * * * * * * * * * * * * * * * * * * U n l e s s t h e v i o l a t o r c o r r e c t s t h e v i o l a t i o n ( s ) d e s c r i b e d h e r e i n b y t h e d a t e s e t f o r t h a b o v e A N D C O N T A C T S T H E U N D E R S I G N E D C O D E I N S P E C T O R A T 5 6 1 - 2 7 6 - 5 1 1 6 t o v e r i f y C O M P L I A N C E w i t h t h e T o w n C o d e ( s ) c i t e d h e r e i n , N O T I C E I S H E R B Y G I V E N T H A T A P U B L I C H E A R I N G W I L L B E C O N D U C T E D f o r t h e a b o v e r e f e r e n c e d p r o p e r t y b e f o r e t h e T o w n o f G u l f S t r e a m C o d e E n f o r c e m e n t S p e c i a l M a g i s t r a t e o n D e c e m b e r 4 . 2 0 1 _ % t 1 0 A . M . o r a s s o o n t h e r e a f t e r a s t h e c a s e c a n b e h e a r d i n t h e T o w n H a l l C o m m i s s i o n C h a m b e r l o c a t e d a t 1 0 0 S e a R o a d , G u l f S t r e a m , F l o r i d a . Y O U A R E R E Q U I R E D T O A P P E A R B E F O R E T H E S P E C I A L M A G I S T R A T E a t t h a t t i m e t o a n s w e r a l l e g a t i o n s t h a t y o u h a v e v i o l a t e d t h e a b o v e c i t e d s e c t i o n s o f t h e C o d e o f O r d i n a n c e s o f t h e T o w n o f G u l f S t r e a m . I F Y O U F A I L T O A T T E N D , t h e S p e c i a l M a g i s t r a t e m a y b a s e h i s / h e r f i n d i n g s s o l e l y u p o n p r e s e n t a t i o n b y t h e T o w n C o d e I n s p e c t o r W i l l i a m H . T h r a s h e r , T o w n M a n a g e r T o w n o f G u l f S t r e a m YOU MUST NOTIFY THE TOWN OF GULF STREAM AT (561) 276-5116 ON OR BEFORE November 30, 2015 THAT THE PARCEL OF REAL PROPERTY OWNED BY YOU AND DESCRIBED IN THIS NOTICE IS NO LONGER IN VIOLATION OF TOWN CODES AND THAT YOU ARE REQUESTING A REINSPECTION. IF THE VIOLATIONS) IS/ARE NOT CORRECTED IN THE TIME SPECIFIED FOR CORRECTION, OR IF THE VIOLATIONS) IS/ARE CORRECTED AND THEN RECUR(S), THE CASE MAY BE PRESENTED TO THE SPECIAL MAGISTRATE EVEN IF THE VIOLATIONS) HAVE BEEN CORRECTED PRIOR TO THE SPECIAL MAGISTRATE HEARING. IF YOU FAIL TO NOTIFY THE TOWN OF GULF STREAM, IT WILL BE PRESUMED BY THE CODE ENFORCEMENT SPECIAL MAGISTRATE THAT THE PARCEL OF REAL PROPERTY DESCRIBED HEREIN AND OWNED BY YOU CONTINUES TO BE IN VIOLATION. If the Special Magistrate finds that you have committed a violation, he/she may order IMMEDIATE COMPLIANCE with the Code and if you fail to comply with such order within the time period set forth therein, he/she can IMPOSE A FINE OF UP TO $250.00 PER DAY for each violation remaining in non-compliance. If the Town is successful in prosecuting your case before the Special Magistrate, FINES WILL BE IMPOSED BY THE SPECIAL MAGISTRATE. SUCH FINES SHALL CONSTITUTE A LIEN ON ANY REAL OR PERSONAL PROPERTY OWNED BY YOU. FAILURE TO PAY SUCH FINES CAN RESULT IN FORECLOSURE AND COLLECTION ACTION BY THE TOWN. If you disagree with a decision of the Special Magistrate, you may appeal to the CIRCUIT COURT OF PALM BEACH COUNTY within 30 DAYS after the Special Magistrate's Order is entered. If you wish to have the Special Magistrate RECONSIDER your case for any reason or if your case was in fine and is now in compliance and you wish to request a REDUCTION IN FINE, an APPLICATION AND THE APPROPRIATE FEE MUST BE SUBMITTED TO THE TOWN OF GULF STREAM FOR ANY SUCH REQUESTS. ALL REQUIREMENTS FOR SUCH REQUEST MUST BE MET FOR THE SPECIAL MAGISTRATE TO RECONSIDER YOUR CASE. If a person decides to appeal any decision made by the Special Magistrate with respect to any matters considered at subject meeting, they will need a record of the proceedings, and for such.purpose, they may need to ensure that a verbatim record of the proceedings is made, upon which record includes testimony and evidence upon which appeal is to be based. (FS 286.0105). PLEASE GOVERN YOURSELF ACCORDINGLY. /2:,&I -ILO 7iEJe::L By: Rita L. Taylor, Tofuh Clerk Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 (561) 276-5116 SCOTT W. MORGAN, Mayor ROBERT W. GANGER, Vice -Mayor JOAN K. ORTHWEIN THOMAS M. STANLEY DONNA 5. WHITE August 14, 2015 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA NOTICE OF VIOLATION Christopher O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: Telephone (561)276-5116 Fax (561)737-8188 Town Manager WILLIAM H. THRASHER Town Clerk RITA L. TAYLOR Hand Delivery Article x{199 On August 29, 2011 the Town of Gulf Stream issued zoning approval for the replacement of the roof on the home you own at 2520 Avenue Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec Corporation. On August 30, 2011, the City of Delray Beach issued the re -roofing Permit Number 11-135146 to Rooftec Corporation. The approved permit covered re -roofing the structure with white thru and thru, flat cement tile with no slurry coating or paint. This work was started but has, to date, not been completed in conformity with the permit that was issued. Section 42-29 CONSTRUCTION ABANDONMENT states that failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation. Section 70-238 ROOFS requires that roofs on homes that are predominately with Bermuda influences have flat, white thru and thru, smooth, un -coated tile. The roof is in violation as there is no tile in place. Section 70-99 ROOF DESIGN, SLOPE AND MATERIALS (3) Prohibited lists inconsistent roofing materials visible from the exterio�he property except approved accent materials. The material that has been applied is inconsistent with roofing materials visible from the exterior of the property or with any other house in town and thus is in violation of this section of the Code. 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Page 2 August 14, 2015 Christopher O'Hare This is to be considered official notice to correct these violations within 30 days of delivery and/or posting of this notice. It will be necessary that you file a new application as there have been changes in the Florida Building Code during this period of inactivity. Failing to comply with this order shall result in an appearance before the Special Magistrate and further action as provided in Chapter 2, Division 2 of the Code of Ordinances, a copy of which is enclosed along with copies of the Sections referred to herein. Sincerely, %&iv� ) / William H. Thrasher Town Manager Encls. S 2-12 GULF STREAM CODE DIVISION 2. CODE ENFORCEMENT* Sec. 2-66. Title. This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf Stream, Florida." ( Ord. No. 06-02. § 1, 5-5-06) Sec. 2-67. Special magistrate term. la) There is hereby established a special mag- istrate who shall be designated by the town commission. (b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve in an ex -officio capacity if the special mag- istrate serves other local governments as a special magistrate. Such service to other local govern- ments does not create duties inconsistent with serving as special magistrate to the Town of Gulf Stream. (c) The special magistrate shall be an attorney and a member of the Florida Bar. (di The special magistrate shall serve tit the pleasure of the town commission. la The special magistrate shall preside over code enforcement matters scheduled to be heard from time to time. (f) Minutes shall be maintained at all hearings presided over by the special magistrate; all hear- ings shall be open to the public. The town shall provide clerical and administrative personnel as may be required by the special magistrate for the proper performance of his/her duties. Igl The town attorney or his/her designee shall represent the town by presenting cases before the special magistrate. (Ord. Pio. 06-02, § 1, 5-5-06) State law reference—Special magistrates. F.S. > 162.03. 2:4 *State law reference—Code enforcement. F.S. ch. 162. Anrm-[sTRAr[ov See. 2-68. Jurisdiction. (a) The special magistrate shall have the juris- diction and authority to hear and decide any alleged violations of the following chapters of the Code and ordinances of the town as the same may be amended from time to time: )1) Chapter 6, Animals; )2) Chapter 10, Businesses. Professions and Occupations; (3) Chapter 18, Emergency Systems; (4) Chapter 22, Nuisances; (b) Chapter 26, Offenses; (6) Chapter 38, Waterways; (7) Chapter 42, Buildings and Building Reg- ulations; )8) Chapter 52, Marine Facilities, Structures and Places; and (9) Chapter 66, Zoning. (".0) Chapter 70, Design Manual. (b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option of the administrative official bearing re- sponsibility for enforcement of that respective code or ordinance. )Ord. No. 06-02, § 1. 5-5-06) Sec. 2-69. Enforcement procedure. (a) An employee of the town who is duly au- thorized by the town manager and responsible for the enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may initiate code enforcement proceedings and issue citations or notices of violation to a person or persons to appear in front of the special magis- trate when the code enforcement officer, upon personal investigation, has reasonable cause to believe that the person or persons are in violation of the codes cited in this division. Employees who may be designated as code enforcement officers may include but are not limited to, code inspec. § 2-69 tors, law enforcement officers, public works in- spectors, fire safety inspectors, and zoning inspec- tors. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsec- tion (c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to correct the violation. Should the violation con- tinue beyond the time specified for correction, the code inspector shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in section 2-75 to the violator. At the option of the special magistrate, notice may addi- tionally be served by publication or posting as provided in section 2-75. If the violation is cor- rected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing, the notice shall so state. (c) If a repeat violation is found, the code inspector shall notify the violator but is not re- quired to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special magistrate and request a hear- ing. The special magistrate shall schedule a hear- ing and shall provide notice pursuant to section 2-75. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been cor- rected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate. Arepeat violation is a violation of a provision of a code or ordinance by a person whom the special magistrate has previously found to have violated the same provision within five years prior to the violation. (d) If the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public health, CD2:5 5 2-69 GULF STREAM CODE safety, and welfare or if the violation is irrepara- ble or irreversible in nature, the code inspector shall make a reasonable effort to notify the viola- tor and may immediately notify the special mag- istrate and request a hearing. (Ord. No. 06-02, 5 1., 5-5-06) State law reference—Similar provisions, F.S. § 162.06. Sec. 2-70. Conduct of hearings. (a) At the hearing, the burden of proof shall be upon the town to show by substantial competent evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of having has been given to the respondent, either as actual notice or as provided herein, a hearing may proceed in the absence of the respondent. (b) All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not. apply. Irrelevant, immaterial and unduly repeti- t1onS evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not Such evidence would be admissible at a trial in the courts of the state. Documentary and physical evidence maybe admitted. (c) The special magistrate may inquire of any %witness who is testifying before him/her. The respondent, or his attorney and the town attorney and his/her designee shall be permitted to inquire of any witness before the special magistrate. The special magistrate may call any witness deemed necessary to provide a fit 11 and fair hearing of the case. (d) At the conclusion of the hearing, the spe- cial magistrate shall issue findings of fact based on evidence on the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order shall be stated orally at the meeting. and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. In the event the town prevails in prose- cuting a case before the magistrate, it shall be entitled to recover all costs incurred in prosecut- ing the case before the special magistrate and such costs may be included in the lien authorized under section 2-72 of this chapter. Administrative costs. for purposes of this section, shall be $150.00. The order entered by the magistrate shall in- clude, in the event of noncompliance, a finding of noncompliance, that the violator is required to pay the town administrative costs in the amount of $150.00, that the order must be complied with by a specified date and that a fine, as well as the cost of repairs, may be imposed if the order is not complied with by such date. The administrative costs shall be due regardless of whether the order is complied with by the requisite date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers. Successors in in- terest, or assigns if' the violation concerns real property, and the findings therein shall be bind- ing upon the violator and, if the violation concerns real property, any subsequent purchasers or Suc- cessors In Interest or assigns. (Ord. No. 06-02, a 1. 5.5-06; Ord. No. 09-6. § 1, 11.13-09) State law reference Similar provisiuns. F.S. a 162.07. Sec. 2-71. Powers. CD2:6 The special magistrate shell have the power to: (1) Adopt rules for the conduct of his/her meetings and hearings. (2) Subpoena alleged violators and witnesses to his/her hearings. t31 Subpoena evidence as necessary for hW her hearings, including, but not limited to physical and documentary evidence such as records, surveys, plats and photo- graphs. (4) Take testimony under oath. (5) Issue orders having the force and effect of law which can command whatever steps arc necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondentlsi within ten working days thereafter. (6) Establish and enforce fines pursuant to section 2-72. (7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which remain unpaid after a period of three months. 1► r ADSIMSTRATION (8) Authorize the reduction of any fine he/she has imposed. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar pra%isians. F.S. F 162.08. Sec. 2-72. Administrative fines, costs of re- pair; liens. (a) The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the special magistrate. In addition, if the violation is a violation described in subsection 2-69(d) of this division, the special magistrate shall notify the local governing body, which may make all reason- able repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation has been made as provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be irrep- arable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b), below. (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first viola- tion, and shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of repairs pursuant to subsection (a), above. However, if the special magistrate finds the vio- lation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation. (c) In determining the amount of the fine, if any, the special magistrate shall consider the Mowing factors: (1) The gravity of the dolation; 2-79 (2) Any actions taken by the violator to cor- rect the violation; and (3) Any previous violations committed by the violator. (d) A certified copy of an order imposing a fine may be recorded in the public record and thereaf- ter shall constitute a lien against the land on which the violation exists, and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a courtt judg- ment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursu- ant to this section shall continue to accrue until the violator comes into compliance or until a judgment fs rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town and the town may execute a satisfaction or re- lease of a lien entered pursuant to this section. After three months from the filing of any such lien which remains unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created pursuant to the provisions of this section may be foreclosed on real property which is a homestead under Section 4. Article X of the State Constitution. (Ord. No. 06-02, § 1, 5-5-06) State law reference_Similar prn inions. F.S. § 162.09. Sec. 2-73. Duration. No lien provided under this division shall con- tinue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attor- ney's fee, that it incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the Commence- ment of the action shall not be good against CD2:7 § 2-73 ,,. GULF STREAM CODE creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. ( Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar proviniona. F.S. § 1(i2. 10. Sec. 2-74. Appeals. An aggrieved party, including the town, may appeal a final administrative order of the special magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a hearimg de novo, but shall be limited to appellate review of the record created before the special magistrate. The appeal shall be filod within 30 days of the execution of the urder to be appealed. (Ord. No. 06-02, § 1, 5-5-061 State law reference—Simil:u• prnviaion+. I' ti ; 162.11, Sea 2-75. Notices. (.) All notices required by this section shall bc• provided to the alleged violator by certified mail. return rcccipt requested; by hand delivery by the shcrill' or other law enforcement officer, code in- spector, or other person designated by the local governing body: or by leaving the notice at the violator's usual place ofresidence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice. (b) In addition to providing notice as set forth in this section, at the option of the special naagis- tr:ate, notice may also be served by publication or posting, as follows: (l ) Such notice shall be published once dur- ing each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Palm Beach County. Florida. The newspaper shall meet such requirements as are pre- scribed under F.S. ch. 50 for legal and official advertisements. (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. (3) In lieu of publication as described in this section. such notice may be posted for at least ten days in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at town hall. (4) Prool'of posting shall be by affidavit of the person posting the notice, which allidavit shall include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under this section. (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section, together with proof of publication or post- ing as provided in this section shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice. lOrd. No. 06-02, § 1, 5-5-06) State law refereuce 4imilnr provision. C.S. g 162.12. Sec. 2-76. Procedure to request that a fine or lien imposed pursuant to sec- tion 2-72 be reduced; conditions and criteria therefor. (a) The owner of real property against which a fine has been imposed pursuant to section 2-72 may apply to the special magistrate, through the town attornev or hislher designee, for a satisfac- tion of the fine with less than full payment thereof. No such application shall be considered by the special magistrate until the applicant has first shown that: (1) All ad valorem property taxes, special assessments, town utility charges and other government -imposed lions against the sub- ject real property have been paid. (2) The applicant is not personally indebted to the town for any reason. (31 All town code violations have been cor- rected under necessary permits issued therefor. lb) In considering an application to reduce a fine or lien imposed pursuant to section 2-72, no satisfaction thereof shall be approved by the spe- CD2:8 A. AD-NIMSTIIATION : 2-60 tial magistrate with less than full payment thereof, aite'term of imprisonment not to exceed 60 days, unless the special magistrate shall make a spe- in a municipal detention facility or other facility cifie finding that no violation of any ordinance as authorized by law. de -scribed in section 2-68 of this Code exists an (Ord. No. 06-02. § 1. 5-5-061 the subject real property. (c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special magistrate shall be paid on such terms as approved by the special magistrate. (d I If the properly for which an application for a fine reduction is being considered i5 owned by a government or quasi -government entity. the spe- cial magistrate may reduce such fine even if the violation has not been corrected. (e) Where recording has occurred and a lien filed against the property, any request for a sat- isfaction of the lien with less than full payment shall be considered by the town commission not the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-77. Provisions supplemental and cu- mulative. Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or prohibit the town from filing charges against any person, firm or corporation violating any town ordinance as provided by existing laws. This division shall be cunstrued to be supplemental and cumulative with any and all other remedies available to the town and not exclusive. (Ord. No. 06-02, § 1, 5-5-06) State law refereace,9imilar provisions. E5. § 162.013. Sec. 2-78. Alternative code enforcement pro- cedures. The town may employ other methods of code enforcement including, but not limited to, the issuance of a notice to appear in county court or arrest for violation of municipal ordinances as prodded for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordi- nance may be sentenced to pay a fine not to exceed x;500.00, and may be sentenced to a deft - CL 42-27 GULF STREAM CODE and a fee established by the town's fee schedule shall be paid to the town for receipt of such permit. (d) If a construction trailer is parked within the town a permit shall be required therefor along with approval of the town commission, and a permit fee in the amount established in the town's fee schedule shall be paid to the town. The permit will be valid for a period of six months. (e) If a person fails to obtain a building permit where otherwise required within the town, the penalty fee applicable by the City of Delray Beach in the amount of three times the regular fee due to the City of Delray Beach shall be paid. In addition, there shall be paid to the town a fee three times the regular fee due the town. (Code 1978, § 4-3; Ord. No. 69-6, § 1, 12-15-89; Ord. No. 98-1, § 1, 4-14-98: Ord. No. 09-9, § 2, 11-13-09) Sec. 42.28. County to process applications; fees for service. The county building department shall process plans that are submitted in triplicate, checking the same for compliance with the codes adopted in this article, and will determine the amount of the permit fee and supply a copy of the same to the town. For this and the inspection service the county shall charge the builder a permit fee as established by the county building permit fee schedule. The fee to the county shall be paid by the builder at the time application for permit is submitted to the county. (Code 1978, § 4-4) Sec. 42-29. Construction abandonment. All authorized construction shall be completed prior to the expiration of the building permit issued by the county. The expiration of a building permit shall be prima facie evidence that the building project has not commenced or has been abandoned. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building Permit is a violation that will be referred to the special master pursuant to Chapter 2, Article III, Division 2, of this Code. Failure to restore the site to its precunstruction conditions, including re- moval of all structural improvements and place- ment of sod on all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the permit expires. (Ord. No. 00-1, § 1. 3-10-00) Editor's note—ordinance No. 03-13. § 1, adopted October 10. 2003. repealed § 42-29. Formerly. such section pertained in approval of supplier of water prior to permit is: unnce and derived from § 4.8 of the 1978 Code. Subsequently: § 2 of ume ordinance renumbered § 42-10 na § .12-29. Sec. 42-30. Driveway permits. (a) Pennit required. Construction or reconstruc- tion of driveway aprons within town right-of-way shall not commence until the town has issued a driveway connection permit. The permit shall be processed as a Level I site plan approval. The town may impose reasonable conditions to ensure that driveway run-off is directed awav from the roadway, to ensure free flow of drainage across the base of the driveway apron where necessary to reach existing or proposed drainage out -falls, and to ensure proper connection with the travel lane of the adjacent roadway. (b) Properties Fronting on SR AIA. Not with- standing the foregoing, properties proposing ac- cess to State Road AIA shall first obtain a drive- way permit from the state department of transportation. t Ord. No. 00-1, § 2, 3-10-001 Editor's note—Ordinance So. 0.^,-1;1, § 3. adopted October 10. 2003, renumbered § 42-31 to § .12-30. Secs. 42-31-42-50. Reserved. CD42:4 4 10-99 GULF STREAM CODE Sec. 70-99. Roof design, slope and materials. Roofs area major -visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing. vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Flip or gable roofs Low pitched roofs (under 280 or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 21h, feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped tile in some districts Shed roofs Steep slopes (over 450 or 1:1 slope) M40:46 GULF STREAhf DESIGN b1A-NTUAL Very low pitched roofs (less than 1S° or 5:12 slope) (3) Prohibited. liA Low Slope Under 2e (16:12 slope) Average Slope 255° (6il2-1:1) Steep Slope Over 45` (1:1 slope) F 70-99 Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white). for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Solei] Solar panels on the streetside CD70:47 Hi. Gable Shed Discouraeed) Flat (prohibited) Gambrel (Prohibited Mansard (Prohibited) (3) Prohibited. liA Low Slope Under 2e (16:12 slope) Average Slope 255° (6il2-1:1) Steep Slope Over 45` (1:1 slope) F 70-99 Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white). for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Solei] Solar panels on the streetside CD70:47 GULFSTREAM DEMN JtA-VCAL S 70-2.I8 (b) Stepbacks. The use of stepbacks is appropriate to reduce excessive bulkiness and provide a transition between first and second stories. Afew critical stepbacks on a building are better than several minor stepbacks that only complicate the facade and create busy architecture. (c) Preferred. Balconies Simple rectangular config- urations Single story garages Smaller second story con- figurations Stepbacks to second story 1d) Discouraged. Angular walls Complex facade treatment (excessive multi -layer stepbacks) Sec. 70-238. Roofs. alepnacm. smaller second stony, single stony garage, and a balcony help to articulate and give appropriate scale to this house (preferred). Is) Required. Fiat, white thru and thru, smooth, un -coated tile and gray slate tile may be permitted on homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of architectural review and planning board and town commission through the Level III review process, subject to the architectural review and planning board and the town commission making a determination that such alternatives aro appropriate for the neighborhood. (b) Preferred. Combination hip/gable roofs Decorative capped chim- ney Exposed rafter tails Flashing, vent stacks, and pipes painted to match ad- jacent building surface Hip ruof Low pitched roofs ( 6:12 Slopes) Roofoverhang(2-2V_,, feet) Simple roof geometry em- phasizing long horizontal lines White flat untextured tile vuu dream— nermuaa style white the roof (required) CD70:93 Qo c' Gulf Stream Police Department F® 246 Sea Road Gulf Stream, FL 33483 Phone: (561) 278-8611 Fax: (561) 276-2528 Page 1 of I NON CRIMINAL OFFENSE REPORT Incident Type: POLICE SERVICE Location of Incident: 2520 AVE. AU SOLEIL Name: CHRISTOPHER OHARE Race: WHITE Home Address: 2520 AVE AU SOLEIL GULF STREAM FL 33483 Zone: Processed By: 1 Complaint Number: 15-1952 OFC M. FELTER Officer Killed/Assaulted: NO OTHER Sex: MALE INCIDENT SUMMARY ON 10/31/2015 AT APPROXIMATELY 1439 HRS 1 DELIVERED A TOWN HALLARTICLE #200 TO 2520 AVENUE AU SOLEIL. MR. CHRISTOPHER O'HARE ACCEPTED AND SIGNED FOR THE ARTICLE; NO FURTHER. GULF STREAM FL 33483 Type of Premises: RESIDENCE -SINGLE FAMILY Time of Call: 1439 Time of Arrival: 1439 Time Completed: 1442 Officer Injured: NO Date/Time Reported: 10/31/2015 14:39 Occurred From: Domestic: NO Juvenile Involved: NO Reporting Officer: OFC. MARSHALL FELTER Name: CHRISTOPHER OHARE Race: WHITE Home Address: 2520 AVE AU SOLEIL GULF STREAM FL 33483 Zone: Processed By: 1 Complaint Number: 15-1952 OFC M. FELTER Officer Killed/Assaulted: NO OTHER Sex: MALE INCIDENT SUMMARY ON 10/31/2015 AT APPROXIMATELY 1439 HRS 1 DELIVERED A TOWN HALLARTICLE #200 TO 2520 AVENUE AU SOLEIL. MR. CHRISTOPHER O'HARE ACCEPTED AND SIGNED FOR THE ARTICLE; NO FURTHER. Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 ......0 ... g r.u.mu.g ana Zoning Department /h 111 J.-(i'y -e1—fd ArTj'c /-e .2 u U CODE ENFORCEMENT SPECIAL MAGISTRATE TOWN OF GULF STREAM, FLORIDA CASE NO: CE 15-1 Ph. (561)276-5116 Fax (561)737-8188 10-30-15 STATEMENT OF VIOLATION AND NOTICE OF HEARING Pursuant to section 2-75 of the Town of Gulf Stream Code of Ordinance, the undersigned hereby gives notice of uncorrected violation(s) of the Town of Gulf Stream Code(s) more particular described herein, and requests a PUBLIC HEARING before the CODE ENFORCEMENT SPECIAL MAGISTRATE of the Town. Location/Address where violation(s) exist(s): 2520 Avenue Au Soleil, Gulf Stream, FL 334; 2. Legal Description: Lot 36, Place Au Soleil Subdivision Name and address of owner/person in charge where violation(s) exist(s): Christopher F. O'Hare and Shelley L.C. O'Hare, 2520 Avenue Au Soleil, Gulf Stream, FL 33483 4. Violation of Town Code Section(s) and description(s): Sec. 42-29 CONSTRUCTION ABANDONMENT Failed to complete construction within timeframe of Bldg. Permit. Sec. 70-238 ROOFS Calls for flat, white thru & thru, smooth, un -coated tile but no tile has been ins a e over a Sec. - prohibit; inconsistent roofing materials visible from exterior of property or with any other Sec. (SEE ATTACHED "EXHIBITS OF VIOLATION") 5. Date of First Inspection: July 17, 2015 6. Date owner first notified of violation(s): August 14, 2015 7. Date on/by, which violations are to be corrected: September 14. 2015 ***************************IMPORTANT NOTICE************************* Unless the violator corrects the violation(s) described herein by the date set forth above AND CONTACTS THE UNDERSIGNED CODE INSPECTOR AT 561-276-5116 to verify COMPLIANCE with the Town Code(s) cited herein, NOTICE IS HERBY GIVEN THAT A PUBLIC HEARING WILL BE CONDUCTED for the above referenced property before the Town of Gulf Stream Code Enforcement Special Magistrate on -11-16--15 at 2:00 P.M. or as soon thereafter as the case can be heard in the Town Hall Commission Chamber located at 100 Sea Road, Gulf Stream, Florida. YOU ARE REQUIRED TO APPEAR BEFORE THE SPECIAL MAGISTRATE at that time to answer allegations that you have violated the above cited sections of the Code of Ordinances of the Town of Gulf Stream. IF YOU FAIL TO ATTEND, the Special Magistrate may base his/her findings solely upon presentation by the Town Code Inspector J 1 L �l J/ U, William H. Thrasher, Town Manager Town of Gulf Stream YOU MUST NOTIFY THE TOWN OF GULF STREAM AT (561) 276-5116 ON OR BEFORE 11-12-15 , THAT THE PARCEL OF REAL PROPERTY OWNED BY YOU AND DESCRIBED IN THIS NOTICE IS NO LONGER IN VIOLATION OF TOWN CODES AND THAT YOU ARE REQUESTING A REINSPECTION. IF THE VIOLATION(S) IS/ARE NOT CORRECTED IN THE TIME SPECIFIED FOR CORRECTION, OR IF THE VIOLATION(S) IS/ARE CORRECTED AND THEN RECUR(S), THE CASE MAY BE PRESENTED TO THE SPECIAL MAGISTRATE EVEN IF THE VIOLATION(S) HAVE BEEN CORRECTED PRIOR TO THE SPECIAL MAGISTRATE HEARING. IF YOU FAIL TO NOTIFY THE TOWN OF GULF STREAM, IT WILL BE PRESUMED BY THE CODE ENFORCEMENT SPECIAL MAGISTRATE THAT THE PARCEL OF REAL PROPERTY DESCRIBED HEREIN AND OWNED BY YOU CONTINUES TO BE IN VIOLATION. If the Special Magistrate finds that you have committed a violation, he/she may order IMMEDIATE COMPLIANCE with the Code and if you fail to comply with such order within the time period set forth therein, he/she can IMPOSE A FINE OF UP TO $250.00 PER DAY for each violation remaining in non-compliance. If the Town is successful in prosecuting your case before the Special Magistrate, FINES WILL BE IMPOSED BY THE SPECIAL MAGISTRATE. SUCH FINES SHALL CONSTITUTE A LIEN ON ANY REAL OR PERSONAL PROPERTY OWNED BY YOU. FAILURE TO PAY SUCH FINES CAN RESULT IN FORECLOSURE AND COLLECTION ACTION BY THE TOWN. If you disagree with a decision of the Special Magistrate, you may appeal to the CIRCUIT COURT OF PALM BEACH COUNTY within 30 DAYS after the Special Magistrate's Order is entered. If you wish to have the Special Magistrate RECONSIDER your case for any reason or if your case was in fine and is now in compliance and you wish to request a REDUCTION IN FINE, an APPLICATION AND THE APPROPRIATE FEE MUST BE SUBMITTED TO THE TOWN OF GULF STREAM FOR ANY SUCH REQUESTS. ALL REQUIREMENTS FOR SUCH REQUEST MUST BE MET FOR THE SPECIAL MAGISTRATE TO RECONSIDER YOUR CASE. If a person decides to appeal any decision made by the Special Magistrate with respect to any matters considered at subject meeting, they will need a record of the proceedings, and for such -purpose, they may need to ensure that a verbatim record of the proceedings is made, upon which record includes testimony and evidence upon which appeal is to be based. (FS 286.0105). PLEASE GOVERN YOURSELF ACCORDINGLY. By: Rita L. Taylor, Town Oferk Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 (561) 276-5116 SCOTT W. MORGAN, Mayor ROBERT W. GANGER, Vice -Mayor JOAN K. ORTHWEIN THOMAS M. STANLEY DONNA S. WHITE August 14, 2015 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA NOTICE OF VIOLATION Christopher O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: Telephone (561)276.5116 Fax (561)737.018a Town Manager WILLIAM H. THRASHER Town Clerk RITA L. TAYLOR Hand Delivery Article #199 On August 29, 2011 the Town of Gulf Stream issued zoning approval for the replacement of the roof on the home you own at 2520 Avenue Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec Corporation. On August 30, 2011, the City of Delray Beach issued the re -roofing Permit Number 11-135146 to Rooftec Corporation. The approved permit covered re -roofing the structure with white thru and thru, flat cement tile with no slurry coating or paint. This work was started but has, to date, not been completed in conformity with the permit that was issued. Section 42-29 CONSTRUCTION ABANDONMENT states that failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation. Section 70-238 ROOFS requires that roofs on homes that are predominately with Bermuda influences have flat, white thru and thru, smooth, un -coated tile. The roof is in violation as there is no tile in place. Section 70-99 ROOF DESIGN, SLOPE AND MATERIALS (3) Prohibited lists inconsistent roofing materials visible from the exteriorthe property except approved accent materials. The material that has been applied is inconsistent with roofing materials visible from the exterior of the property or with any other house in town and thus is in violation of this section of the Code. 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Page 2 August 14, 2015 Christopher O'Hare This is to be considered official notice to correct these violations within 30 days of delivery and/or posting of this notice. It will be necessary that you file a new application as there have been changes in the Florida Building Code during this period of inactivity. Failing to comply with this order shall result in an appearance before the Special Magistrate and further action as provided in Chapter 2, Division 2 of the Code of Ordinances, a copy of which is enclosed along with copies of the Sections referred to herein. Sincerely, William H. Thrasher Town Manager Encls. $ 2-42 GULF STREAM CODE DLVISION 2. CODE ENFORCEMENT* Sec. 2-66. Title. This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf Stream, Florida." ( Ord. No. 06-02, S 1, 5-5-06) Sec. 2-67. Special magistrate term. (a) There is hereby established a special mag- istrate who shall be designated by the town commission. (b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve in an ex -officio capacity if the special mag- istrate serves other local governments as a special magistrate. Such service to other local govern- ments does not create duties inconsistent with serving as special magistrate to the Town of Gulf Stream. (c) The special magistrate shall be an attorney and a member of the Florida Bar. (d( The special magistrate shall serve tit the pleasure of the town commission. (a The special magistrate shall preside over axle enforcement matters scheduled to be heard from time to time. (i) Minutes shall be maintained at all hearings presided over by the special magistrate; all hear- ings shall be open to the public. The town shall provide clerical and administrative personnel as may be required by the special magistrate for the proper performance of his/her duties. lg( The town attorney or his/her designee shall represent the town by presenting cases before the special magistrate. (Ord. No. 06-02, g 1, 5-5-06) State law reference --Special magistrates. F.S. # 162.03. 2:4 'State law reference—Code enforcement. F.S. ch. 162. N ADMINISTRATION Sec. 2-68. Jurisdiction. (a) The special magistrate shall have the juris- diction and authority to hear and decide any alleged violations of the following chapters of the Code and ordinances of the town as the same may be amended from time to time: 11) Chapter 6, Animals; (2) Chapter 10, Businesses. Professions and Occupations; (3( Chapter 18, Emergency Systems; (4) Chapter 22, Nuisances; (5) Chapter 26, Offenses; (6) Chapter 38, Waterways; (7) Chapter 42, Buildings and Building Reg- ulations; 181 Chapter 52, Marine Facilities, Structures and Places; and (9) Chapter 66, Zoning. (:.0) Chapter 70, Design Manual. (b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option of the administrative official hearing re- sponsibility for enforcement of that respective code or ordinance. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-69. Enforcement procedure. (a) An employee of the town who is duly au- thorized by the town manager and responsible for the enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may initiate code enforcement proceedings and issue citations or notices of violation to a person or persons to appear in front of the special magis- trate when the code enforcement officer, upon personal investigation, has reasonable cause to believe that the person or persons are in violation of the codes cited in this division. Employees who may be designated as code enforcement officers may include but are not limited to, code inspec- 3 2-69 tors, law enforcement officers, public works in- spectors, fire safety inspectors, and zoning inspec- tors. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsec- tion (c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to correct the violation. Should the violation con- tinue beyond the time specified for correction, the code inspector shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in section 2-75 to the violator. At the option of the special magistrate, notice may addi- tionally be served by publication or posting as provided in section 2-75. If the violation is cor- rected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing, the notice shall so state. (c) If a repeat violation is found, the code inspector shall notify the violator but is not re- quired to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special magistrate and request a hear- ing. The special magistrate shall schedule a hear- ing and shall provide notice pursuant to section 2-75. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing. and the notice shall so state. If the repeat violation has been cor- rected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate. A repeat violation is a violation of a provision of a code or ordinance by a person whom the special magistrate has previously found to have violated the same provision within five years prior to the violation. (d) If the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public health, CD2:5 5 2.69 GULF STREAM CODC safoty, and welfare or if the violation is irrepara- ble or irreversible in nature, the code inspector shall make a reasonable effort to notify the viola- tor and may immediately notify the special mag- istrate and request a hearing. (Ord. No. 06-02, 9 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.06. Sec. 2-70. Conduct of hearings. (a) At the hearing, the burden of proof shall be upon the town to show by substantial competent evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of hearing has been given to the respondent, either as actual notice or as provided herein, a hearing may proceed in the absence of the respondent. (b) All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply. Irrelevant, immaterial and unduly repoti- tieU6 evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible at a trial in the courts of the state. Documentary and physical evidunco may be admitted. (c) The special magistrate may inquire of any witness who is testifying before him/her. The respondent, or his attorney and the, town attorney and his/her designee shall be permitted to inquire of any witness before the special magistrate. The special magistrate may call any witness deemed necessary to provide a fill) and fair hearing of the case. (d) At the conclusion of the hearing, the spe- cial magistrate shall issue findings of fact based on evidence on the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order shall be stated orally at the meeting, and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. In the event the town prevails in prose- cuting a case before the magistrate, it shall be entitled to recover all costs incurred in prosecut- ing the case before the special magistrate and such costs may be included in the lien authorized under section 2-72 of this chapter. Administrative costs. for purposes of this section. shall be $150.00. The order entered by the magistrate shall in- clude, in the event of noncompliance, a finding of noncompliance, that the violator is required to pay the town administrative costs in the amount of $150.00, that the order must be complied with by a specified date and that a fine, as well as the cost of repairs, may be imposed if the order is not complied with by such date. The administrative costs shall be due regardless of whether the order is complied with by the requisite date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in in- terest, or assigns if the violation concerns real property, and the findings therein shall be bind- ing upon the violator and, if the violation concerns real property, any subsequent purchasers or suc- cessors in interest or assigns. (Ord. No. 06-02, a 1. 5-5-06; Ord. No. 09-6. § 1, 11-13-091 State law reference—Similar provisions. F.S. 3 162.07. Sec. 2-71. Powers. CD2:6 The special magistrate shall have the power to: (1) Adopt rules for the conduct of his/her meetings and hearings. (2) Subpoena alleged violators and witnesses to his/her hearings. (3) Subpoena evidence as necessary for his,/ her hearings, including, but not limited to physical and documentary evidence such as records, surveys, plats and photo- graphs. (4) Take testimony under oath. (5) Issue orders having the force and effect of law which can command whatever steps are necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondent(s) within ten working days thereafter. (6) Establish and enforce fines pursuant to section 2-72. (7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which remain unpaid after a period of three months. A. ADIMNIST&1TION (3) Authorize the reduction of any fine he/she has imposed. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar prn%isians. F.S. F 162.08. See. 2-72. Administrative fines, costs of re- pair; liens. (a) The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the special magistrate. In addition, if the violation is a violation described in subsection 2-69(d) of this division, the special magistrate shall notify the local governing body, which may make all reason- able repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation he,,; been made a9 provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be irrep- arable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b), below. (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first viola- tion, and shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of repairs pursuant to subsection (a), above. However. if the special magistrate finds the vio- lation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation. (c) In determining the amount of the fine, if any, the special magistrate shall consider the following factors: (1) The gravity of the violation; § 2-79 (2) Any actions taken by the violator to cor- rect the violation; and (3) Any previous violations committed by the violator. (d) A certified copy of an order imposing a fine may be recorded in the public record and thereaf- ter shall constitute a lien against the land on which the violation exists, and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judg- ment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a courtjudgment except for enforcement purposes. A fine imposed pursu- ant to this section shall continue to accrue until the violator comes into compliance or until a judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town and the town may execute a satisfaction or ro- lease of a lien entered pursuant to this section. After three months from the filing of any such lien which remains unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created pursuant to the provisions of this section may be foreclosed on real property which is a homestead under Section d. Article X of the State Constitution. (Ord. No. 06-02, § 1, 5-5-06) State law referenee Similar pmviAnns. F.S. § 162.00. Sec. 2-73. Duration. No lien provided under this division shall con- tinue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attor- ney's fee, that it incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commence- ment of the action shall not be good against CD2:7 C 2-73 GULF STREAM CODE creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions. F.S. § 16^3.10. Sec. 2-74. Appeals. An aggrieved party, including the town, may appeal a final administrative order of the special magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a lleuring de novo, but shall be limited to appellate review of the record created before the special magistrate. The appeal shall be filed within 30 days of the execution of the urder to be appealed. (Ord. No. 06-02, § 1, 545-06) State law reference—Similar pruviainn:. J :s § 162.11. Sec. 2-75. Notices. (a) All notices required by this section shall be provided to the alleged violator by certified mail. return receipt requested; by hand delivery by the sheriff or other law enforcement officer, curie in- spector, or other person designated by the local governing body; or by leaving the notice at the violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice. (b) In addition to providing notice as set forth in this section, at the option of the special magis- trate, notice may also be served by publication or posting, as follows: ( l.) Such notice shall be published once dur- ing each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Palm Beach County, Florida. The newspaper shall meet such requirements as are pre- scribed under F.S. ch. 50 for legal and official advertisements. (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. (3) In lieu of publication as described in this section, such notice may be posted for at least ten days in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at town hall. (4) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may rum concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under this section. (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section, together with proof of publication or post- ing as provided in this section shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice. (Ord. No. 06-02, § 1, 5-5-06) State law reference Similar provisions. F.S. § 162.12. Sec. 2-76. Procedure to request that a fine or lien imposed pursuant to sec- tion 2-72 be reduced; conditions and criteria therefor. (a) The owner of real property against which a fine has been imposed pursuant to section 2-72 may apply to the special magistrate, through the town atturnev or his/her designee, fur a satisfac- tion of the fine with less than full payment thereof'. No such application shall be considered by the special magistrate until the applicant has first shown that: (1) All ad valorem property taxes, special assessments, town utility charges and other government -imposed liens against the sub- ject real property have been paid. (2) The applicant is not personally indebted to the town f'or any reason. (31 All town code violations have been cor- rected under necessary permits issued therefor. (b) In considering an application to reduce a fine or lien imposed pursuant to section 2-72, no satisfaction thereof shall be approved by the spe- CD2:8 ADNIL\ISTRATIO\ § 2-80 tial magistrate with less than full payment thereof, aite'term of imprisonment not to exceed 60 days, unless the special magistrate shall make a ape- in a municipal detention facility or other facility cific finding that no violation of any ordinance as authorized by law. de -scribed in section 2-68 of this Code exists on (Ord. No. 06-02, § 1. 5-5-06) the subject real property. (c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special magistrate shall be paid on such terms as approved by the special magistrate. (d I If the property for which an application for a fine reduction is being considered is owned by a government or quasi -government entity, the spe- cial magistrate may reduce such fine even if the violation has not been corrected. (e) Where recording has occurred and a lien filed against the property, any request for a sat- isfaction of the lien with less than full payment shall be considered by the town commission not the special magistrate. (Ord. No. 06-02, 5 1, 5-5-06) Sec. 2.77. Provisions supplemental and cu- mulative. Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or prohibit the town from filing charges against any person, firm or corporation violating any town ordinance as provided by existing laws. This division shall be construed to be supplemental and cumulative with any and all other remedies available to the town and not exclusive. (Ord. No. 06-02, 5 1, 5-5-06) State law reference—Similsr provisions. F.S. 5 162.013. Sec. 2.78. Alternative code enforcement pro- cedures. The town may employ other methods of code enforcement including, but not limited to, the issuance of a notice to appear in county court or arrest for violation of municipal ordinances as provided for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordi- nance may be sentenced to pay a fine not to exceed $500.00, and may be sentenced to a defi- CI § 42-27 GULF STREAM CODE and a fee established by the tow'n's fee schedule shall be paid to the town for receipt of such permit. (d) If a construction trailer is parked within the towel a permit shall be required therefor along with approval of the town commission, and a permit fee in the amount established in the town's fee schedule shall be paid to the town. The permit will be valid for a period of six months. (e) If a person fails to obtain a building permit where otherwise required within the town, the penalty fee applicable by the City of Delray Beach in the amount of three times the regular fee due to the City of Delray Beach shall be paid. In addition, there shall be paid to the town a fee three times the regular fee due the town. (Code 1978, § 4-3: Ord. No. 89-6, § 1, 12-15-89; Ord. No. 98-1, § 1, 4-14-98: Ord. No. 09-9, § 2, 11-13-09) Sec. 42-28. County to process applications; fees for service. The county building department shall process plans that are submitted in triplicate, checking the same for compliance with the codes adopted in this article, and will determine the amount of the permit fee and supply a copy of the same to the town. For this and the inspection service the county shall charge the builder a permit fee as established by the county building permit fee schedule. The fee to the county shall be paid by the builder at the time application for permit is submitted to the county. (Code 1978, § 4-41 Sec. 42-29. Construction abandonment. All authorized construction shall be completed prior to the expiration of the building permit issued by the county. The expiration of a building permit shall be prima facie evidence that the building project has not commenced or has been abandoned. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2, Article III, Division 2, of this Code. Failure to restore the site to its preconstruction conditions, including re- moval of all structural improvements and place- ment of sod on all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the permit expires. (Ord. No. 00-1, § 1, 3-10-00) Editor's note— )rdinance Su. 03-13. § 1. adopted October 10. 2003. repealed § 42-29. Formerly, such section pertained to approval nr supplier of water priur to permit issuance and derived from §4-6 of lhp 1978 Cade. Sub�equcntly. § 2 of camp ordinance renumbered § 42.30 m § .12-29. Sec. 42-30. Driveway permits. (a) Perini.trequired. Construction orreconstruc- tion of driveway aprons within town right-of-way shall not commence until the town has issued a driveway connection permit. The permit shall be processed as a Level I site plan approval. The town may impose reasonable conditions to ensure that driveway run-off is directed away from the roadway, to ensure free flow of drainage across the base of the driveway apron where necessary to reach existing or proposed drainage out -falls, and to ensure proper connection with the travel lane of the adjacent roadway. (b) Properties fronting on SR AIA. Not with- standing the foregoing, properties proposing ac- cess to State Road AIA shall first obtain a drive- way permit from the state department of transportation. (Ord. No. 00-1, § 2, 3-10-00) Editor's note—Ordinate No. 03-13. § 3, adopted October 10. 2003. renumbered § 42-31 to § 42430. Secs. 42-31-42-50. Reserved. CD42:4 a 70-99 GULF STREAM CODE Sec. 70-99. Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs )under 28° or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 20%, feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) Simple roof grometry Tile ruof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped the in some districts Shed roofs Steep slopes (over 45° or 1:1 slope) CD70:46 GULF STRE41ki DESIGN MAVL!AL 4 70-99 Very low pitched roofs (less than 18' or 5:12 slope) (3) Prohibiter). lti.- Low Slope Under 28g (16:12 slope) Average Slope 28-45° 16:12-1:1) �a ar Steep Slope Over 45' (N slope) Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white). for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Soleil Solar panels on the streetside CD70:47 'L�- Hip Gable Shed (Discouraged) Flat (Prohibited) Gambrel !Prohibited Mansard (Prohibited) (3) Prohibiter). lti.- Low Slope Under 28g (16:12 slope) Average Slope 28-45° 16:12-1:1) �a ar Steep Slope Over 45' (N slope) Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white). for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Soleil Solar panels on the streetside CD70:47 GOLF STREAM DESIGN MANUAL § 70-235 (b) Stepbacks. The use of stepbacks is appropriate to reduce excessive bulkiness and provide a transition between first and second stories. A few critical stepbacks on a building are better than several minor stepbacks that only complicate the facade and create busy architecture. (c) Preferred. Balconies �? Simple rectangular config- urations Single story garages Smaller second story con- figurations Stepbacks to second story (d) Discouraged. Angular walls Complex facade treatment (excessive multi -layer stepbacks) � r o � A... Stepbacks. smaller second story, single story garage, and a balcony help to Sec. 70.238. Roofs. articulate and give appropriate scale to this house (preferred). (a) Required. Flat, white thru and thru, smooth, un -coated tile and gray slate tile may be permitted on homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray thru and thru, un -coated file or slate -like tile may be permitted at the discretion of architectural review and planning board and town commission through the Level III review process, subject to the architectural review and planning board and the town commission making a determination that such alternatives are appropriate for the neighborhood. (b) Preferred. Combination hip/gable roofs Decorative capped chim- ney Exposed rafter tails Flashing, vent stacks, and pipes painted to match ad- jacent building surface Hip ruof Low pitched roofs (6:12 Slopes) Roofoverhang(2-2Y•: feet) Simple rnof geometry em- phasizing long horizontal lines White flat untextured tile Gulf Stream- Bermuda style white the roof (required) CD70:93 Page 1 of I Incident Type: Location of Incident: Type of Premises: Time of Call: Time of Arrival: Time Completed: Officer Injured: Date/Time Reported: Occurred From: Domestic: Juvenile Involved: Reporting Officer: Gulf Stream Police Department 246 Sea Road Gulf Stream, FL 33483 Phone: (561) 278-8611 Fax: (561) 276-2528 NON CRIMINAL OFFENSE REPORT POLICE SERVICE 2520 AVE. AU SOLEIL GULF STREAM FL 33483 RESIDENCE -SINGLE FAMILY 2000 2000 2005 NO 08/14/2015 20:00 NO NO OFC. CHRIS HAMORI Zone: Processed By: Complaint Number: 15-1409 1 OFC C HAMORI Officer Killed/Assaulted: NO WWI0 oleo WilJu 10 MWA ON 08/14/2015 AT 2000 HRS ARTICLE #199 WAS DELIVERED TO MR CHRISTOPHER OHARE AT 2520 AVE AU SOLEIL. COMMISSIONERS SCOTT W. MORGAN, Mayor ROBERT W. GANGER, Vice -Mayor LOAN K. ORTHWEIN THOMAS M. STANLEY DONNA S. WHITE August 14, 2015 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA NOTICE OF VIOLATION Christopher O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: Telephone (561)276-5116 Fax (561)737.0168 Town Manager WILLIAM H. THRASHER Town Clerk RITA L. TAYLOR Hand Delivery Article #199 On August 29, 2011 the Town of Gulf Stream issued zoning approval for the replacement of the roof on the home you own at 2520 Avenue Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec Corporation. On August 30, 2011, the City of Delray Beach issued the re -roofing Permit Number 11-135146 to Rooftec Corporation. The approved permit covered re -roofing the structure with white thru and thru, flat cement tile with no slurry coating or paint. This work was started but has, to date, not been completed in conformity with the permit that was issued. Section 42-29 CONSTRUCTION ABANDONMENT states that failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation. Section 70-238 ROOFS requires that roofs on homes that are predominately with Bermuda influences have flat, white thru and thru, smooth, un -coated tile. The roof is in violation as there is no tile in place. Section 70-99 ROOF DESIGN, SLOPE AND MATERIALS (3) Prohibited lists inconsistent roofing materials visible from the exterior—or-The property, except approved accent materials. The material that has been applied is inconsistent with roofing materials visible from the exterior of the property or with any other house in town and thus is in violation of this section of the Code. 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Page 2 August 14, 2015 Christopher O'Hare This is to be considered official notice to correct these violations within 30 days of delivery and/or posting of this notice. It will be necessary that you file a new application as there have been changes in the Florida Building Code during this period of inactivity. Failing to comply with this order shall result in an appearance before the Special Magistrate and further action as provided in Chapter 2, Division 2 of the Code of Ordinances, a copy of which is enclosed along with copies of the Sections referred to herein. Sincerely, William H. Thrasher Town Manager Encls. § 212 GULF STREAM CODE DIVISION 2. CODE ENFORCEMENT* Sec. 2-66. Title. This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf Stream, Florida." (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-67. Special magistrate term. (a) There is hereby established a special mag- istrate who shall be designated by the town commission. (b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve in an ex -officio capacity if the special mag- istrate serves other local governments as a special magistrate. Such service to other local govern- ments does not create duties inconsistent with serving as special magistrate to the Town of Gulf Stream. (c) The special magistrate shall be an attorney and a member of the Florida Bar. (d) The special magistrate shall serve at the pleasure of the town commission. (e) The special magistrate shall preside over code enforcement matters scheduled to be heard from time to time. (f) Minutes shall be maintained at all hearings presided over by the special magistrate; all hear- ings shall be open to the public. The town shall provide clerical and administrative personnel as may be required by the special magistrate for the proper performance of his/her duties. (g) The town attorney or his/her designee shall represent the town by presenting cases before the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Special magistrates. F.S. § 162.03. ?:4 'State law reference—Code enforcement, F.S. ch. 162. Sec. 2-68. Jurisdiction. ADMINISTRATION (a) The special magistrate shall have the juris- diction and authority to hear and decide any alleged violations of the following chapters of the Code and ordinances of the town as the same may be amended from time to time: (1) Chapter 6, Animals; (2) Chapter 10, Businesses, Professions and Occupations; (3) Chapter 18, Emergency Systems; (4) Chapter 22, Nuisances; (5) Chapter 26, Offenses; (6) Chapter 38, Waterways; (7) Chapter 42, Buildings and Building Reg- ulations; (8) Chapter 52, Marine Facilities, Structures and Places; and (9) Chapter 66, Zoning. (,0) Chapter 70, Design Manual. (b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option of the administrative official bearing re- sponsibility for enforcement of that respective code or ordinance. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-69. Enforcement procedure. (a) An employee of the town who is duly au- thorized by the town manager and responsible for the enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may initiate code enforcement proceedings and issue citations or notices of violation to a person or persons to appear in front of the special magis- trate when the code enforcement officer, upon personal investigation, has reasonable cause to believe that the person or persons are in violation of the codes cited in this division. Employees who may be designated as code enforcement officers may include but are not limited to, code inspec- 5 2-69 tors, law enforcement officers, public works in- spectors, fire safety inspectors, and zoning inspec- tors. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsec. tion (c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to correct the violation. Should the violation con- tinue beyond the time specified for correction, the code inspector shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in section 2-75 to the violator. At the option of the special magistrate, notice may addi- tionally be served by publication or posting as provided in section 2-75. If the violation is cor- rected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing, the notice shall so state. (c) If a repeat violation is found, the code inspector shall notify the violator but is not re- quired to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special magistrate and request a bear- ing. The special magistrate shall schedule a hear- ing and shall provide notice pursuant to section 2-75. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been cor- rected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate. A repeat violation is a violation of a provision of a code or ordinance by a person whom the special magistrate has previously found to have violated the same provision within five years prior to the violation. (d) If the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public health, CD2:5 5 2-69 GULF STREAM CODE safuty, and welfare or if the violation is irrepara- ble or irreversible in nature, the code inspector shall make a reasonable effort to notify the viola- tor and may immediately notify the special mag- istrate and request a hearing. (Ort. No. 06-02, § 1, 5-5-06) State law reference Similar provisions, F.S. § 162.06. See. 2-70. Conduct of hearings. (a) At the hearing, the burden of proof shall be upon the town to show by substantial competent evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of henring has been given to the respondent, either as actual notice or as provided herein, a hearing may proceed in the absence of the respondent. (b) All testimony shall be under oath and shall be recorded. The formal rules ofevidence shot not apply. Irrelevant, immaterial and unduly reped- tious evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible at a trial in the courts of the state. Documentary and physical evidence may be admitted. (c) The special magistrate may inquire of any witness who is testifying before him/her. The n :,pendent, or his attorney and the town attorney and his/her designee shall be permitted to inquire orally witness before the special magistrate. The special magistrate may call any witness deemed necessary to provide a till[ and fair hearing of the cilse. (d) At the conclusion of the hearing, the spe- cial magistrate shall issue findings of fact based on evidence on the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order shall be stated orally at the meeting, and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. In the event the town prevails in prose- cuting a case before the magistrate, it shall be entitled to recover all costs incurred in prosecut- ing the case before the special magistrate and such costs may be included in the lien authorized under section 2-72 of this chapter. Administrative costs, for purposes of this section, shall be $150.00. The order entered by the magistrate shall in- clude, in the event of noncompliance, a finding of noncompliance, that the violator is required to pay the town administrative costs in the amount of $150.00, that the order must be complied with by a specified date and that a fine, as well as the cost of repairs, may be imposed if the order is not complied with by such date. The administrative costs shall be due regardless of whether the order is complied with by the requisite date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in in- terest, or assigns it' the violation concerns real property, and the findings therein shall be bind- ing upon the violator and, if the violation concerns real property, any subsequent purchasers or suc- cessors in interest or assigns. (Ord. No. 06-02, § 1, 5-5-06; Ord. No. 09-6, § 1, 11-13-09) State law reference Similar provisions, F.S. S 162.07. Sec. 2-71. Powers. CD2:6 The special magistrate shall have the power to (1) Adopt rules for the conduct of his/her meetings and hearings. (2) Subpoena alleged violators and witnesses to his/her hearings. (3) Subpoena evidence as necessary for his/ her hearings, including, but not limited to physical and documentary evidence such as records, surveys, plats and photo- graphs. (4) Take testimony under oath. (5) Issue orders having the force and effect of law which can command whatever steps are necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondent(s) within ten working days thereafter. (6) Establish and enforce fines pursuant to section 2-72. (7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which remain unpaid after a period of three months. f M ADML1*ISTRATION (8) Authorize the reduction of any fine he/she has imposed. (Ord. No. 06-02, § 1, 5-5-06) State law reference Similar provisions, F.S. § 162.08. See. 2-72. Administrative fines, costs of re- pair; liens. (a) The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the special magistrate. In addition, if the violation is a violation described in subsection 2-69(d) of this division, the special magistrate shall notify the local governing body, which may make all reason- able repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation has been made as provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be irrep- arable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b), below. (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first viola- tion, and shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of repairs pursuant to subsection (a), above. However, if the special magistrate finds the vio- lation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation. (c) In determining the amount of the fine, if any, the special magistrate shall consider the following factors: (1) The gravity of the violation; § 2-73 (2) Any actions taken by the violator to cor- rect the violation; and (3) Any previous violations committed by the violator. (d) A certified copy of an order imposing a fine may be recorded in the public record and thereaf- ter shall constitute a lien against the land on which the violation exists, and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judg- ment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursu- ant to this section shall continue to accrue until the violator comes into compliance or until a judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town and the town may execute a satisfaction or re- lease of a lien entered pursuant to this section. After three months from the filing of any such lien which remains unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created pursuant to the provisions of this section may be foreclosed on real property which is a homestead under Section 4, Article X of the State Constitution. (Ord. No. 06-02, § 1, 5-5-06) State law reference --Similar pmvisions, F.S. § 162.09. Sec. 2-73. Duration. No lien provided under this division shall con- tinue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attor- ney's fee, that it incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commence- ment of the action shall not be good against CD2:7 § 2-73 V GULF STREAM CODE creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, KS. § 162.10. Sec. 2-74. Appeals. An aggrieved party, including the town, may appeal a final administrative order of the special magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the special magistrate. The appeal shall be filed within 30 days of the execution of the order to be appealed. (Ord. No. 06-02, § 1, 5-5-06) State law referenc«Similar provisions, F.S. § 162.11. See. 2-75. Notices. (a) All notices required by this section shall be provided to the alleged violator by certified mail, return receipt requested; by hand delivery by the sheriff or other law enforcement officer, code in- spector, or other person designated by the local governing body; or by leaving the notice at the violator's usual place orresidence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice. (b) In addition to providing notice as set forth in this section, at the option of the special magis- LraLe, notice may also be served by publication or posting, as follows: (1) Such notice shall be published once dur- ing each week for four consecutive weeks (four publications being sufficient) in a newspaper or general circulation in Palm Beach County, Florida. The newspaper shall meet such requirements as are pre- scribed under F.S. ch. 50 for legal and official advertisements. (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. (3) In lieu of publication as described in this section, such notice may be posted for at least ten days in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at town hall. (4) Proorof posting shall be by affidavit of the person posting the notice, which aflidavit shall include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under this section. (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section, together with proof of publication or post- ing as provided in this section shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice. (Ord. No. 06-02, § 1, 5-5-06) State law reference Similar provisions, F.S. § 162.12. Sec. 2-76. Procedure to request that a fine or lien imposed pursuant to sec- tion 2-72 be reduced; conditions and criteria therefor. (a) The owner of real property against which a line has been imposed pursuant to section 2-72 may apply to the special magistrate, through the town attorney or his/her designee, for a satisfac- tion or the fine with less than full payment thereof No such application shall be considered by the special magistrate until the applicant has first shown that: (1) All ad valorem property taxes, special assessments, town utility charges and other government -imposed liens against the sub- ject real property have been paid. (2) The applicant is not personally indebted to the town for any reason. (3) All town code violations have been cor- rected under necessary permits issued therefor. (b) In considering an application to reduce a fine or lien imposed pursuant to section 2-72, no satisfaction thereof shall be approved by the spe- CD2:8 X AD\1LNISTRATION i 2-80 tial magistrate with less than full payment thereof, nite'term of imprisonment not to exceed 60 days, unless the special magistrate shall make a spe- in a municipal detention facility or other facility cific finding that no violation of any ordinance as authorized by law. de -scribed in section 2-68 of this Code exists on (Ord. No. 06-02, § 1, 5-5-06) the subject real property. (c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special magistrate shall be paid on such terms as approved by the special magistrate. (d) If the property for which an application for a fine reduction is being considered is owned by a government or quasi -government entity, the spe- cial magistrate may reduce such fine even if the violation has not been corrected. (e) Where recording has occurred and a lien filed against the property, any request for a sat- isfaction of the lien with less than full payment shall be considered by the town commission not the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-77. Provisions supplemental and cu- mulative. Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or prohibit the town from filing charges against any person, firm or corporation violating any town ordinance as provided by existing laws. This division shall be construed to be supplemental and cumulative with any and all other remedies available to the town and not exclusive. (Ord. No. 06-02, § 1, 5-5-06) State law reference Similar pmvisians. F.S. § 162.013. Sec. 2-78. Alternative code enforcement pro- cedures. The town may employ other methods of code enforcement including, but not limited to, the issuance of a notice to appear in county court or arrest for violation of municipal ordinances as provided for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordi- nance may be sentenced to pay a fine not to exceed $500.00, and may be sentenced to a defi- CL F 42-27 GULF STREAM CODE and a fee established by the town's fee schedule shall be paid to the town for receipt of such permit. (d) If a construction trailer is parked within the town a permit shall be required therefor along with approval of the town commission, and a permit fee in the amount established in the town's fee schedule shall be paid to the town. The permit will be valid for a period of six months. (e) If a person fails to obtain a building permit where otherwise required within the town, the penalty fee applicable by the City of Delray Beach in the amount of three times the regular fee due to the City of Delray Beach shall be paid. In addition, there shall be paid to the town a fee three times the regular fee due the town. (Code 1978, § 4-3; Ord. No. 89-6, § 1, 12-15-89; Ord. No. 98-1, § 1, 4-14-98; Ord. No. 09-9, § 2, 11-13-09) Sec. 42-28. County to process applications; fees for service. The county building department shall process plans that are submitted in triplicate, checking the same for compliance with the codes adopted in this article, and will determine the amount of the permit fee and supply a copy of the same to the town. For this and the inspection service the county shall charge the builder a permit fee as established by the county building permit fee schedule. The fee to the county shall be paid by the builder at the time application for permit is submitted to the county. (Code 1978, § 4-4) Sec. 42-29. Construction abandonment. All authorized construction shall be completed Prior to the expiration of the building permit issued by the county. The expiration of a building permit shall be prima facie evidence that the building project has not commenced or has been abandoned. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2, Article III, Division 2, of this Code. Failure to restore the site to its preconstruction conditions, including re- moval of all structural improvements and place- ment of sod on all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the permit expires. (Ord. No. 00-1, § 1, 3-10-00) Editor's note—Ordinance No. 03-13. § 1, adopted October 10, 2003. repealed § 42-29. Formerly, such section pertained to appmval of supplier of water prior to permit issuance and derived from F 4-6 of the 1978 Code. Subsequently. § 2 of same ordinance renumbered 4 42-30 ns 4 42-29. Sec. 42-30. Driveway permits. (a) Pennit required. Construction or reconstruc- tion of driveway aprons within town right-of-way shall not commence until the town has issued a driveway connection permit. The permit shall be processed as a Level I site plan approval. The town may impose reasonable conditions to ensure that driveway run-off is directed away from the roadway, to ensure free flow of drainage across the base of the driveway apron where necessary to reach existing or proposed drainage out -falls, and to ensure proper connection with the travel lane of the adjacent roadway. (b) Properties /fronting on SR AIA. Not with- standing the foregoing, properties proposing ac- cess to State Road AlA shall first obtain a drive- way permit from the state department of transportation. (Ord. No. 00-1, § 2, 3-10-00) Editor's note—Ordinance No. 03-13, § 3, adopted October 10, 2003. renumbered : 42-31 to § 42 10. Secs. 42-31-42-50. Reserved. CD42:4 5 70-99 GULF STREAM CODE Sec. 70-99. Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 28° or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 21L feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped tile in some districts Shed roofs Steep slopes (over 450 or 1:1 slope) CD70:46 GULF STREAM DESIGN WUNUAL Very low pitched roofs (less than 18° or 5:12 slope) `- E—i ALJ/ s V Hip Gable Shed(Discouraeed) Flat (Prohibited) I Gambrel (Prohibited( I Mansard (Prohibited) (3) Prohibited. Low Slope Under 2e (6:12 slope) N5S Average Slope 285° (6:%1/2/2-1:1) i� �;s• Sleep Slope Over 45` (1:1 slope) C 70-99 Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place Au Soleil Solar panels on the streetside CD70:47 GULF STREAM DESIGN MANUAL 5 70-236 (b) Stepbacks. The use of stepbacks is appropriate to reduce excessive bulkiness and provide a transition between fust and second stories. A few critical stepbacks on a building are better than several minor stepbacks that only complicate the facade and create busy architecture. (c) Preferred. Balconies Simple rectangular config- urations Single story garages Smaller second story con- figurations Stepbacks to second story (d) Discouraged. Angular walls Complex facade treatment (excessive multi -layer stepbacks) Sec. 70-238. Roofs. Stephacks, smaller second story, single story garage, and a balcony help to articulate and give appropriate scale to this house (preferred). (a) Required. Flat, white thru and thru, smooth, un -coated tile and gray state tile may be permitted on homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of architectural review and planning board and town commission through the Level III review process, subject to the architectural review and planning board and the town commission making a determination that such alternatives are appropriate for the neighborhood. (b) Preferred. Combination hip/gable roofs Decorative capped chim- ney Exposed rafter tails Flashing, vent stacks, and pipes painted to match ad- jacent building surface Hip roof Low pitched roofs (6:12 slopes) Roof overhang (2-2 1h, feet) Simple roof geometry em- phasizing long horizontal lines White flat untextured tile Gulf Stream— llermuda st 'le while file roof (required) CD70:93 Page I of I Incident Type: Location of Incident: Type of Premises: Time of Call: Time of Arrival: Time Completed: Officer Injured: Date/Time Reported: Occurred From: Domestic: Juvenile Involved: Reporting Officer: Name: Race: Date of Birth: Home Address: Name: Race: Juvenile: Home Address: Business Name: Gulf Stream Police Department 246 Sea Road Gulf Stream, FL 33483 Phone: (561) 278-8611 Fax: (561) 276-2528 NON CRIMINAL OFFENSE REPORT POLICE SERVICE 2520 AVE. AU SOLEIL GULFSTREAM FL33483 RESIDENCE -SINGLE FAMILY 1756 156 1757 NO 08/05/2015 17:56 NO NO OFC. BERNARD ODONNELL CHRISTOPHER OHARE WHITE 04/08/1954 2520 AVE AU SOLEIL GULF STREAM FL33483 AUGUST OHARE WHITE YES 2520 AVE AU.SOLEIL GULF STREAM FL33483 TOWN OF GULF STREAM Zone: Processed By: Complaint Number: 15-1347 OFC. B.ODONNELL Other Units Notified: SGT. PASSEGGIATA Officer Killed/Assaulted: NO OTHER Sex: MALE OTHER Sex: MALE REQUESTED BY INCIDENT SUMMARY Marital Status: MARRIED ON THE ABOVE DATE AND TIME 1 WAS ASSIGNED BY SGT. PASSEGGIATA TO DELIVER A DOCUMENT FROM THE TOWN OF GULF STREAM, FL. THE DOCUMENT IS IDENTIFIED AS ARTICLE 4198 AND IS ADDRESSED TO MR. CHRISTOPHER O'HARE OF 2520 AVE. AU.SOLEIL, GULF STREAM, FL. UPON ARRIVAL I MADE CONTACT WITH MR. AUGUST O'HARE. MR. AUGUST O'HARE SIGNED THE RETURN RECEIPT FOR ARTICLE #198 WITHOUT INCIDENT. END OF REPORT. § 2112 GULF STREAM CODE DIVISION 2. CODE ENFORCEMENT* Sec. 2-66. Title. This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf Stream, Florida." (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-67. Special magistrate term. (a) There is hereby established a special mag- istrate who shall be designated by the town commission. (b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve in an ex -officio capacity if the special mag- istrate serves other local governments as a special magistrate. Such service to other local govern- ments does not create duties inconsistent with serving as special magistrate to the Town of Gulf Stream. (c) The special magistrate shall be an attorney and a member of the Florida Bar. (d) The special magistrate shall serve at the pleasure of the town commission. (e) The special magistrate shall preside over code enforcement matters scheduled to be heard from time to time. (f) Minutes shall he maintained at all hearings presided over by the special magistrate; all hear- ings shall be open to the public. The town shall provide clerical and administrative personnel as may be required by the special magistrate for the proper performance of -his/her duties. (g) The town attorney or his/her designee shall represent the town by presenting cases before the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Special magistrates, F.S. § 162.03. d:4 'State law reference—Lode enforcement, F.S. ch. 162. Z ADMINISTRATION Sec. 2-68. Jurisdiction. (a) The special magistrate shall have the juris- diction and authority to hear and decide any alleged violations of the following chapters of the Code and ordinances of the town as the same may be amended from time to time: (1) Chapter 6, Animals; (2) Chapter 10, Businesses, Professions and Occupations; (3) Chapter 18, Emergency Systems; (4) Chapter 22, Nuisances; (5) Chapter 26, Offenses; (6) Chapter 38, Waterways; (7) Chapter 42, Buildings and Building Reg- ulations; (8) Chapter 52, Marine Facilities, Structures and Places; and (9) Chapter 66, Zoning. (:.0) Chapter 70, Design Manual. (b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option of the administrative official bearing re- sponsibility for enforcement of that respective code or ordinance. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-69. Enforcement procedure. (a) An employee of the town who is duly au- thorized by the town manager and responsible for the enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may initiate code enforcement proceedings and issue citations or notices of violation to a person or persons to appear in front of the special magis- trate when the code enforcement officer, upon personal investigation, has reasonable cause to believe that the person or persons are in violation of the codes cited in this division. Employees who may be designated as code enforcement officers may include but are not limited to, code inspec- § 2-69 tors, law enforcement officers, public works in- spectors, fire safety inspectors, and zoning inspec- tors. (b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsec- tion (c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to correct the violation. Should the violation con- tinue beyond the time specified for correction, the code inspector shall notify the special magistrate and request a hearing. The special magistrate shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as provided in section 2-75 to the violator. At the option of the special magistrate, notice may addi- tionally be served by publication or posting as provided in section 2-75. If the violation is cor- rected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing, the notice shall so state. (c) If a repeat violation is found, the code inspector shall notify the violator but is not re- quired to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special magistrate and request a hear- ing. The special magistrate shall schedule a hear- ing and shall provide notice pursuant to section 2-75. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been cor- rected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate. A repeat violation is a violation of a provision of a code or ordinance by a person whom the special magistrate has previously found to have violated the same provision within five years prior to the violation. (d) If the code inspector has reason to believe a violation of the condition causing the violation presents a serious threat to the public health, CD2:5 § 2-69 GULF STREAM CODE safety, and welfare or if the violation is irrepara- ble or irreversible in nature, the code inspector shall make a reasonable effort to notify the viola- tor and may immediately notify the special mag- istrate and request a hearing. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.06. Sec. 2-70. Conduct of hearings. (a) At the hearing, the burden of proof shall be upon the town to show by substantial competent evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of hearing has been given to the respondent, either as actual notice or as provided herein, a hearing may proceed in the absence of the respondent. (b) All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply. Irrelevant, immaterial and unduly repeti- tious evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible at a trial in the courts of the state. Documentary and physical evidence may be admitted. (c) The special magistrate may inquire of any witness who is testifying before him/her. The respondent, or his attorney and the town attorney and his/her designee shall be permitted to inquire of any witness before the special magistrate. The special magistrate may call any witness deemed necessary to provide a full and fair hearing of the case. (d) At the conclusion of the hearing, the spe- cial magistrate shall issue findings of fact based on evidence on the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted herein. The order shall be stated orally at the meeting, and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. In the event the town prevails in prose- cuting a case before the magistrate, it shall be entitled to recover all costs incurred in prosecut- ing the case before the special magistrate and such costs may be included in the lien authorized under section 2-72 of this chapter. Administrative costs, For purposes of this section, shall be $150.00. The order entered by the magistrate shall in- clude, in the event of noncompliance, a finding of noncompliance, that the violator is required to pay the town administrative costs in the amount of $150.00, that the order must be complied with by a specified date and that a fine, as well as the cast of repairs, may be imposed if the order is not complied with by such date. The administrative costs shall be due regardless of whether the order is complied with by the requisite date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in in- terest, or assigns if the violation concerns real property, and the findings therein shall be bind- ing upon the violator and, if the violation concerns real property, any subsequent purchasers or suc- cessors in interest or assigns. (Ord. No. 06-02, § 1, 5-5-06; Ord. No. 09-6, § 1, 11-13-09) State law reference—Similar provisions, F.S. § 162.07. Sec. 2-71. Powers. CD2:6 The special magistrate shall have the power to: (1) Adopt rules for the conduct of his/her meetings and hearings. (2) Subpoena alleged violators and witnesses to his/her hearings. (3) Subpoena evidence as necessary for his/ her hearings, including, but not limited to physical and documentary evidence such as records, surveys, plats and photo- graphs. (4) Take testimony under oath. (5) Issue orders having the force and effect of law which can command whatever steps are necessary to bring a violation into compliance, such decision to be made at the hearing and reduced to writing and mailed to the respondent(s) within ten working days thereafter. (6) Establish and enforce fines pursuant to section 2-72. (7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which remain unpaid after a period of three months. a . ADMINISTRATION (8) Authorize the reduction of any fine he/she has imposed. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.08. See. 2-72. Administrative fines, costs of re- pair; liens. (a) The special magistrate, upon notification by the code inspector that an order of the special magistrate has not been complied with by the set time or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified in this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the special magistrate. In addition, if the violation is a violation described in subsection 2-69(d) of this division, the special magistrate shall notify the local governing body, which may make all reason- able repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation has been made as provided in this section, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be irrep- arable or irreversible in nature, it may order the violator to pay a fine as specified in subsection (b), below. (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first viola- tion, and shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of repairs pursuant to subsection (a), above. However, if the special magistrate finds the vio- lation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation. (c) In determining the amount of the fine, if any, the special magistrate shall consider the following factors: (1) The gravity of the violation; § 2-73 (2) Any actions taken by the violator to cor- rect the violation; and (3) Any previous violations committed by the violator. . (d) A certified copy of an order imposing a fine may be recorded in the public record and thereaf- ter shall constitute a lien against the land on which the violation exists, and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order may be enforced in the same manner as a court judg- ment by the sheriffs of this state, including levy against the personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursu- ant to this section shall continue to accrue until the violator comes into compliance or until a judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the town and the town may execute a satisfaction or re- lease of a lien entered pursuant to this section. After three months from the filing of any such lien which remains unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created pursuant to the provisions of this section may be foreclosed on real property which is a homestead under Section 4, Article X of the State Constitution. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.09. Sec. 2-73. Duration. No lien provided under this division shall con- tinue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attor- ney's fee, that it incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commence- ment of the action shall not be good against CD2:7 § 2-73 GULF STREAM CODE creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.10. Sec. 2-74. Appeals. An aggrieved party, including the town, may appeal a final administrative order of the special magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the special magistrate. The appeal shall be filed within 30 days of the execution of the order to be appealed. (Ord. No. 06-02, § 1, 5-5-06) Stale law reference—Similar provisions, F.S. § 162.11. Sec. 2-75. Notices. (a) All notices required by this section shall be provided to the alleged violator by certified mail, return receipt requested; by hand delivery by the sheriff or other law enforcement officer, code in- spector, or other person designated by the local governing body; or by leaving the notice at the violator's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice. (b) In addition to providing notice as set forth in this section, at the option of the special magis- trate, notice may also be served by publication or posting, as follows: (1) Such notice shall be published once dur- ing each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in Palm Beach County, Florida. The newspaper shall meet such requirements as are pre- scribed under F.S. ch. 50 for legal and official advertisements. (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. (3) In lieu of publication as described in this section, such notice may be posted for at least ten days in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at town hall. (4) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under this section. (d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section, together with proof of publication or post- ing as provided in this section shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received such notice. (Ord. No. 06-02, § 1, 5-5-06) State law reference Similar provisions, FS. § 162.12. Sec. 2-76. Procedure to request that a fine or lien imposed pursuant to sec- tion 2-72 be reduced; conditions and criteria therefor. (a) The owner of real property against which a fine has been imposed pursuant to section 2-72 may apply to the special magistrate, through the town attorney or his/her designee, for a satisfac- tion of the fine with less than full payment thereof. No such application shall be considered by the special magistrate until the applicant has first shown that: (1) All ad valorem property taxes, special assessments, town utility charges and other government -imposed liens against the sub- ject real property have been paid. (2) The applicant is not personally indebted to the town for any reason. (3) All town code violations have been cor- rected under necessary permits issued therefor. (b) In considering an application to reduce a fine or lien imposed pursuant to section 2-72, no satisfaction thereof shall be approved by the spe- CD2:8 ADMINISTRATION § 2-80 cial magistrate with less than full payment thereof, nite'term of imprisonment not to exceed 60 days, unless the special magistrate shall make a spe- in a municipal detention facility or other facility cific finding that no violation of any ordinance as authorized by law. de -scribed in section 2-68 of this Code exists on (Ord. No. 06-02, § 1, 5-5-06) the subject real property. (c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special magistrate shall be paid on such terms as approved by the special magistrate. (d) If the property for which an application for a fine reduction is being considered is owned by a government or quasi -government entity, the spe- cial magistrate may reduce such fine even if the violation has not been corrected. (e) Where recording has occurred and alien filed against the property, any request for a sat- isfaction of the lien with less than full payment shall be considered by the town commission not the special magistrate. (Ord. No. 06-02, § 1, 5-5-06) Sec. 2-77. Provisions supplemental and cu- mulative. Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or prohibit the town from filing charges against any person, firm or corporation violating any town ordinance as provided by existing laws. This division shall be construed to be supplemental and cumulative with any and all other remedies available to the town and not exclusive. (Ord. No. 06-02, § 1, 5-5-06) State law reference—Similar provisions, F.S. § 162.013. Sec. 2-78. Alternative code enforcement pro- cedures. The town may employ other methods of code enforcement including, but not limited to, the issuance of a notice to appear in county court or arrest for violation of municipal ordinances as provided for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordi- nance may be sentenced to pay a fine not to exceed $500.00, and may be sentenced to a defi- C1 § 42-27 GULF STREAM CODE and a fee established by the town's fee schedule shall be paid to the town for receipt of such permit. (d) If a construction trailer is parked within the town a permit shall be required therefor along with approval of the town commission, and a permit fee in the amount established in the town's fee schedule shall be paid to the town. The permit will be valid for a period of six months. (e) If a person fails to obtain a building permit where otherwise required within the town, the penalty fee applicable by the City of Delray Beach in the amount of three times the regular fee due to the City of Delray Beach shall be paid. In addition, there shall be paid to the town a fee three times the regular fee due the town. (Code 1978, § 4-3; Ord. No. 89-6, § 1, 12-15-89; Ord. No. 98-11 § 1, 4-14-98; Ord. No. 09-9, § 2, 11-13-09) Sec. 42-28. County to process applications; fees for service. The county building department shall process plans that are submitted in triplicate, checking the same for compliance with the codes adopted in this article, and will determine the amount of the permit fee and supply a copy of the same to the town. For this and the inspection service the county shall charge the builder a permit fee as established by the county building permit fee schedule. The fee to the county shall be paid by the builder at the time application for permit is submitted to the county. (Code 1978, § 4-4) Sec. 42-29. Construction abandonment. All authorized construction shall be completed prior to the expiration of the building permit issued by the county. The expiration of a building permit shall be prima facie evidence that the building project has not commenced or has been abandoned. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2, Article III, Division 2, of this Code. Failure to restore the site to its preconstruction conditions, including re- moval of all structural improvements and place- ment of sod on all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the permit expires. (Ord. No. 00-1, § 1, 3-10-00) Editor's note—Ordinance No. 03-13, § 1, adopted October 10, 2003, repealed § 42-29. Formerly, such section pertained to approval of supplier of water prior to permit issuance and derived from § 4-6 of the 1978 Code. Subsequently, § 2 of same ordinance renumbered § 42-30 as § 42-29. Sec. 42-30. Driveway permits. (a) Pennit required. Construction or reconstruc- tion of driveway aprons within town right-of-way shall not commence until the town has issued a driveway connection permit. The permit shall be processed as a Level I site plan approval. The town may impose reasonable conditions to ensure that driveway run-off is directed away from the roadway, to ensure free flow of drainage across the base of the driveway apron where necessary to reach existing or proposed drainage out -falls, and to ensure proper connection with the travel lane of the adjacent roadway. (b) Properties fronting on SR A1A. Not with- standing the foregoing, properties proposing ac- cess to State Road AIA shall first obtain a drive- way permit from the state department of transportation. (Ord. No. 00-1, § 2, 3-10-00) Editor's note—Ordinance No. 03-13, § 3, adopted October 10, 2003, renumbered § 42-31 to § 42-30. Secs. 42-31-112-50. Reserved. CD42:4 § 70-99 GULF STREAM CODE Sec. 70-99. Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 28° or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 21/2 feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped tile in some districts Shed roofs Steep slopes (over 45" or 1:1 slope) CD70:46 C GULF STREAM DESIGN MANUAL Very low pitched roofs (less than 18° or 5:12 slope) t& Hip Gable Shed Discouraeed) Flat fProhibitedl I Gambrel (Prohibited) I Mansard fProhibited) (3) Prohibited. Low Slope Under 28° (6:12 slope) Average Slope 28145° (6:12[A) j j45• Steep Slope Over 45° (L• I slope) q 70-99 Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place An Soleil Solar panels on the streetside CD70:47 % GULF STREAM DESIGN MANUAL § 70-238 11 (b) Stepbacks. The use of stepbacks is appropriate to reduce excessive bulkiness and provide a transition between first and second stories. A few critical Stepbacks on a building are better than several minor stepbacks that only complicate the facade and create busy architecture. (c) Preferred. Balconies Simple rectangular confil;- urations Single story garages Smaller second story con- figurations Stepbacks to second story (d) Discouraged. Angular walls Complex facade treatment (excessive multi -layer stepbacks) Sec. 70-238. Roofs. Stepbacks', smaller second story, single story garage, and a balcony help to articulate and give appropriate scale to this house (preferred). (a) Required. Flat, white thru and thru, smooth, un -coated tile and gray slate tile may be permitted on homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of architectural review and planning board and town commission through the Level III review process, subject to the architectural review and planning board and the town commission making a determination that such alternatives are appropriate for the neighborhood. (b) Preferred. Combination hip/gable roofs Decorative capped chim- ney Exposed rafter tails Flashing, vent stacks, and pipes painted to match ad- jacent building surface Hip roof Low pitched roofs (6:12 slopes) Roof overhang (2-21/2 feet) Simple roof geometry em- phasizing long horizontal lines White flat untextured file Gulf Stream- Bermuda style while tile roof (required) CD70:93 Roof Violations —Rita my thoughts 2520 Avenue Au Soleil July 16, 2015 22-31 Prohibited (14) Any building, structure, or other place or location where any activity which is in violation of local, state, or federal law is conducted, performed or maintained. NOTE: The "non -activity' constitutes a condition being maintained (unfinished roof system) which is unsightly and unsafe. (17) Any condition constituting afire hazard. NOTE: The "unfinished" roof system leaving exposed underlay material rather a finished roof system such as with concrete tile, allows for the more rapid ignitions and spread of a potential fire. In such an event the spread of a fire could be harmful to nearby neighbors. 42-29. Construction Abandonment. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2, Article lll, Division2, of this Code. NOTE: This permit has expired and an unfinished roof system presently exists. The application of the top surface material has not been applied or installed. 70-238 Roofs. Required. Flat, white thru and thru, smooth, un -coated the and gray slate tile may be permitted On homes that are predominately Georgian or Bristish Colonial with Bermuda influences. NOTE: A tile roof is required which presently is only underlay material and covered with a tile material. 70-4 (c) Design standards. (4) Prohibited. Prohibited items are design elements that do not maintain the desired character or quality of the zoning district within which they are located and are not permitted under current codes or regulations. NOTE. An unfinished roof, such as is the case, without the top surface material applied or installed for over two years, is a design element that does not exist in this district or entire Town. It is distracting and tarnished the quality of the zoning district. IFAXCover Sheet TO: Attny. Randolph Phone: Fax Phone: 650-5300 Date: 8-2-15 Number of pages including cover sheet: FROM: To«m of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Rita Phone: 561-276-5116 Fax Phone: 561-737-0188 1 REMARKS: c As Requested c Urgent c FYI e For Your Review c Reply. ASAP I now have word from Delray Bldg. Dept. that to do anything with his roof, O'Hare will need to take out a new permit due to the fact that the Fla. Bldg. Code has changed since he took out this permit that has become inactive. So, my notice of violation will e to be changed. He is still in violation. Perhaps we just need to mention that he will need to obtain a new permit. Let me know the best thing to do. Driginals to Follo,.v by filail: Fes CC: Fax Phone: No Transmission Report Date/Time 08-02-2015 09:59:43 a.m. Transmit Header Text Local ID 1 5617370188 Local Name 1 This document: Confirmed (reduced sample and details below) Document size : 8.5"x11 " FAX cat cr Shect TO: Attny. Randolph Phone: Fax Phone: Fax Date: 8-2-15 I Number afpages including weer sheet: 1 Taxn of GuirStream 100 Sea Road GulrStream, FL 33483 Rita ne: 561-27Ir-5116 Phone: 561437-0169 EMARKSr eAs Requested[ Urgent t F1'1 ❑ Forl'our Revicc' ❑ Reply ASAP I now have word from Delray Bldg. Dept. that to do anytbiug with his roof, O'Hare will need to take out a new permit due to the fact that the Fla. Bldg. Code had changed since he took out this permit that has become inactive. So, my notice of violation will re Ce be changed. He is still in violation. Perhaps we just need to mention that he will need to obtain a new permit. Let me know the best thing to do. to Follo•A by Mail: Yes CC: Fns Phane: -_ Total Pages Scanned: t Total Pages Confirmed:1 No. IJob I Remote Station Start Time Duration Pages Line Mode Job Type Results 001 080 Janes Foster PA 09:58:23 a.m. 08-02-2015 00:00:47 1/1 1 EC HS CP74400 Abbreviations: HS: Host send PL: Polled local MP: Mailbox print CP: Completed TS: Terminated by system HR: Host receive PR: Polled remote RP: Report FA: Fall G3: Group 3 WS: Waiting send MS: Mallboxsave FF: Fax Forward TU: Terminated by user EC: Error Correct LFA/ \ Cover Sheet TO: Attny Randolph Phone: Fax Phone: 650-5300 Date: 7-30-15 Number of pages including cover sheet: FROM: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Rita Phone: 561-276-5116 Fax Phone: 561-737-0188 RE MARKS: c As Requested c Urgent c FYI e For Your Review e Reph• ASAP This is my draft copy. After you have reviewed the content I. will re -do the letter. We always send this Notice of Violation first. .Then, if it isn't corrected, we set the Special Magistrate Hearing and fill out the final form using the same Sections. Let me know what you want me to change in this letter. Thanks. Driginals to Follow b}• Alail: Yes CC: Fax Phone: No V COMMISSIONERS SCOTT W. MORGAN, Mayor ROBERT W. GANGER, Vice -Mayor JOAN R. ORTHWEIN THOMAS M. STANLEY DONNA S. WHITE July 30, 2015 Christopher 2520 Avenue Gulf Stream, TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA NOTICE OF VIOLATION O'Hare Au Soleil Florida 33483 Dear Mr. O'Hare: Telephone (561)276-5116 Fax (561)777-0188 Town Manager WILLIAM H. THRASHER HAND DELIVERY Article #198 Town Clerk RITA L. TAYLOR On August 29, 2011 the Town of Gulf Stream issued zoning approval for the replacement of the roof on the home you own at 2520 Avenue Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec. On August 30, 201.1, the City of Delray Beach issued the Re -Roofing permit #11-135146 to Rooftech Corporation. The approved permit covered re -roofing the structure with white through and through flat cement tile with no slurry coating or paint. This work was started but was, to date, not completed in conform6ity with the permit that was issued. Section 42-29. CONSTRUCTION ABANDONMENT states that failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation. Section 70-238 ROOFS requires that roofs on homes that are predominately with Bermuda influences have flat, white thru and thru, smooth, un -coated tile. The roof is in violation as there is no tile in place. Section 70-99. ROOF DESIGN, SLOPE AND MATERIALS (3) Prohibited lists inconsistent roofing materials visible from the exterior of the property except approved accent materials. The material that has been applied is different than has been used on any other house in town and thus is a violation. This is to be by installing issued within Failing to com before the Spe Chapter 2, Div enclosed along considered official notice to correct this violation a roof that complies with the re -roofing permit that was 30 days of delivery and/or posting of this notice. ply with this order shall result in an appearance cial Magistrate and further action as provided in ision 2 of the Code of Ordinances, a copy of which is with copies of the Sections referred to herein. 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Transmission Report Date/Time 07-30-2015 10:59:10a.m. Transmit Header Text Local ID 1 5617370186 Local Name 1 Fax Total Paaes Scanned : 2 This document: Confirmed (reduced sample and details below) Document size : 8.5"x11 " fAXCoverSheet Dgte: 7-30-15 Startllme `Number of pages including cover sheet: TO: FROM: Tonn oFGulfSucam I Job Type Results 100 Sea Road 070 Jones Foster PA Gulf Stream, FL 33483 Atony Randolph 2/2 Rita 'hone: Phone: 561-276.5116 ax Phonc:.650-5300 Fax Phone: 561-737-o18R t As Requeslede Urgrnl c nl o For}pouf Resicnv a ReplyASAP This is my draft copy. After you have reviewed the content 1 will re -do. the.letter. We alwayssend this Notice of Violation first.. Then, if it isn't corrected, weget the Special Negiatrate Hearing. end fill out the final form using the same Sections. Let me know what you went me to change in this letter. Thanks. _Originals to Follow k, FaCC: x Phone; Yes No Total Paces Confirmed : 2 No. I Job I Remote Station Startllme Duration Pages Line Mode I Job Type Results 001 070 Jones Foster PA 10:56:39 a.m. 07-30-2015 00:01:57 2/2 1 EC HS CP74400 Abbrevlatlons: HS: Host send PL: Polled local MP: Mailbox print CP: Completed TS: Terminated by system HR: Host receive PR: Polled remote RP: Report FA: Fall G3: Group 3 WS: Waiting send MS: Mallboxsave FF: Fax Forward TU: Terminated by user EC: Error Correct JOAN K. ORTHWEIN, Mayor THOMAS M. STANLEY, Vice -Mayor W. GARRETT DERING ROBERT W. GANGER DONNA 5. WHITE February 12, 2014 Christopher 2520 Avenue Gulf Stream, TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA NOTICE OF VIOLATION O'Hare Au Soleil Florida 33483 Dear Mr. O'Hare: Telephone (561)276-5116 Fax (561)737-0188 Town Manager WILLIAM H. THRASHER Hand Delivery Article #180 Town Clerk RITA L. TAYLOR It has come to our attention that a boat registered to you bearing registration number FL 6948 RX has been anchored within the Municipal Limits of Gulf Stream in a cove known as Polo Cove, Section 38-72 provides that no boat or vessel shall be moored or anchored within the Town for a longer period than 24 hours in any consecutive 30 day period. Inasmuch as this boat was anchored in the above stated location at approximately 4:00 P.M. on February 10, 2014, it is now in violation of Section 38-72 of the Town of Gulf Stream Code of Ordinances, a copy of which is attached for your reference. This is to be considered official notice to correct this violation within twenty four (241 hours of delivery and/or posting of this notice. Failing to comply with this order shall result in an appearance before the Special Magistrate and further action as provided in Chapter 2, Division 2 of the Code of Ordinances, a copy of which is also enclosed. Sincerely, Williia H. Th - r Town Manager ' Encls. 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Roof Violations —Rita my thoughts 2520 Avenue Au Soleil July 16, 2015 22-31 Prohibited (14) Any building, structure, or other place or location where any activity which is in violation of local, state, orfederal law is conducted, performed or maintained. NOTE: The "non -activity" constitutes a condition being maintained (unfinished roof system) which is unsightly and unsafe. (17) Any condition constituting afire hazard. NOTE: The "unfinished" roof system leaving exposed underlay material rather a finished roof system such as with concrete tile, allows for the more rapid ignitions and spread of a potential fire. In such an event the spread of a fire could be harmful to nearby neighbors. 42-29. Construction Abandonment. Failure of the permit holder or the property owner to complete construction once it has been initiated within the timeframe of the building permit is a violation that will be referred to the special master pursuant to Chapter 2, Article III, Division2, of this Code. NOTE: This permit has expired and an unfinished roof system presently exists. The application of the top surface material has not been applied or installed. 70-238 Roofs. Required. Flat white thru and thru, smooth, un -coated tile and gray slate tile may be permitted On homes that are predominately Georgian or Bristish Colonial with Bermuda influences. NOTE: A tile roof is required which presently is only underlay material and covered with a tile material. 70-4 (c) Design standards. (4) Prohibited. Prohibited items are design elements that do not maintain the desired character or quality of the zoning district within which they are located and are not permitted under current codes or regulations. NOTE. An unfinished roof, such as is the case, without the top surface material applied or installed for over two years, is a design element that does not exist in this district or entire Town. It is distracting and tarnished the quality of the zoning district. L11T ur uunmT EDAROOF / RE -ROOF PERMIT APPLIC TOWN OF GULF STRFA AUG 2 9 ZOIC 00 NW 1" Avenue Delray Beach FL 33444 Approv iG,rPermit 1 ': �. 561) 243-7200 Fax: (561) 243-7221 Town of Gulf Stream, FL TI11t1alS,Date Website: mydelraybeach.com FOR OFFICE SE�NLYc,� PROPERTY CONTROL #:- -�La ---03�d BLDGPERMIT#: *MITIGATION REQUIREMENTS IF SINGLE FAMILY: 1. YEAR BUILT (check one): _ BEFORE MARCH 2002 (Go To #2) _ AFTER MARCH 2002 / 2. HOUSE VALUE: $�/4 gs-dd MUST PROVIDE: HOME INSURANCE SUMMARY SHEET OR (IF$0, OR MORE, NOT INCL COPY OF MOST RECENT TAX BILL OR G TO #3 O TO #3 ) INCLUDING LAND VALUE, PROPERTY APPRAISER OFFICE WE PAGE G 3. SUBMIT RE -ROOFING MITIGATION DOCUMENT PACKAGE and BUILDING APPLICATION ((�� I • �f �7 TYP&COLOR OF ROOF MATERIAL REMOVED, TYPEJCOLOR OF ROOF MATERIALS�UAINSTALLED v� p04 NOTE: FOLLOW MANUFACTURER'S GUIDELINES AND NOTICE OF ACCEPTANCE FOR SHINGLE STALLATiON., A) ROOF TYPE (CIRCLE): T• �MgNUFACTURER: PRODUCT APPROVAL NUMB ER: ,[%J /�'� f'�I �+ FLAT I I� 09 - n9ad• / / CJ��V"` REGISTRA /l-oyiy 0 STATE OF 5 W E UNTY OF aA'\ The g g s ent was acknowledged before me this Yj day of 20by\ NUUPbAUA c:,,., .« Rvsd. 3/10 ROOF PERMIT #: 1114 ✓--' r 'LEASE PRINT a N 0 4mil f_ ` A4SOI i I PERMIT EE: OB SITE ADDRESS PLAN CHECK EE: 'ROPERTYOWNER NAME ' JUSh�aW bEW f MCR #: iOMEPHONE(_CELL go&L }}}}rtrtrt}}}rtrtrrtrtrtrtrtrt}rtrtrtrtrt}}}}}}rt 'ROPERTYOWNER ADDRESS r7t 1 5` /VIP I APPROVALS: 1OOF CONT'R (COMPANY) NAME ,) PLAN: 94�%= DATE: WOF COMVR ADDR SS S P & Z: DATE:C tl ZIP ?.-3LjtjL/ :ITY e ST 0, I BUS. PHONE c�DI ) CELL FAX D E-MAIL NOTE. PERMIT EXPIRES IF WORK IS NOT STARTED WITHIN 180 -DAYS OR IF ACTIVITY LAPSES FOR 180 DAYS. PLANS MUST SE ON THE JOB SITE FOR ALL INSPECTIONS. INSPECTION IS REQUIRED ON ALL PERMITS. PROJECT COST (Labor and Material) S Q5 CFINnAL IN Check one: NEW CONSTRUCTION RECOVER OVER EXISTING _REMOVE EXISTING & REPLACE _R/R AIC UNITS (Meth. Permit Required) (Engineer's Letter Required) Check one: _ZSINGLE-FAMILY* _MULTI -FAMILY _COMMERCIAL *MITIGATION REQUIREMENTS IF SINGLE FAMILY: 1. YEAR BUILT (check one): _ BEFORE MARCH 2002 (Go To #2) _ AFTER MARCH 2002 / 2. HOUSE VALUE: $�/4 gs-dd MUST PROVIDE: HOME INSURANCE SUMMARY SHEET OR (IF$0, OR MORE, NOT INCL COPY OF MOST RECENT TAX BILL OR G TO #3 O TO #3 ) INCLUDING LAND VALUE, PROPERTY APPRAISER OFFICE WE PAGE G 3. SUBMIT RE -ROOFING MITIGATION DOCUMENT PACKAGE and BUILDING APPLICATION ((�� I • �f �7 TYP&COLOR OF ROOF MATERIAL REMOVED, TYPEJCOLOR OF ROOF MATERIALS�UAINSTALLED v� p04 NOTE: FOLLOW MANUFACTURER'S GUIDELINES AND NOTICE OF ACCEPTANCE FOR SHINGLE STALLATiON., A) ROOF TYPE (CIRCLE): T• �MgNUFACTURER: PRODUCT APPROVAL NUMB ER: ,[%J /�'� f'�I �+ FLAT I I� 09 - n9ad• / / CJ��V"` REGISTRA /l-oyiy 0 STATE OF 5 W E UNTY OF aA'\ The g g s ent was acknowledged before me this Yj day of 20by\ NUUPbAUA c:,,., .« Rvsd. 3/10 N2 5777 Construction Contractor's Palm Beach County Permit Gulf Stream Review Fee $ c From Town of Gulf Stream Building Permit Review Receipt i Town of Gulf Stream, Florida; U / C(" / Owner's Name Palm Beach Bldg. Fee 0 Cast{ O Check O # — By Y "K_J' t This receipt covers review for zoning and design related requirements only. Construction shall not commence until all required County and State permits have been secured, and appropriate fees paid to issuing agencies. b... .. yam.. : µ..w.... ...,...: y..,. Check one: V SINGLE-FAMILY* —MULTI -FAMILY _COMMERCIAL *MTnGATION RE UIREMENTS IF SINGLE FAMILY: 1. YEAR BUILT (check one): _ BEFORE MARCH 2002 (Go To #2) _ AFTER MARCH 2002 2. HOUSE VALUE: $ '7 q `1-6 MUST PROVIDE: HOME INSURANCE SUMMARY SHEET OR (IF $300,000, OR MORE, NOT INCLUDING LAND VALUE, COPY OF MOST RECENT TAX BILL OR GO TO #3) PROPERTY APPRAISER OFFICE WEEPAGE' 3. SUBMIT RE -ROOFING MTITGATION DOCUMENT PACKAGE and BUILDING APPLICATION TYPFJCOLOR OF ROOF MATERIAL REMOVED 414— TYPE/COLOR OF ROOF MATERIALINSTALLEDSTALLED v� pTlV�c tx 41* NOTE: FOLLOW MANUFACTURER'S GUIDELINES AND NOTICE OF ACCEPTANCE FOR HINGLE STALLA')ON.^ AI - ' ROOF TYPE (CIRCLE): T NUFACrtTRER: PRODUCT APPROVAL NUMB ER: /,(—J�4 ,FLAT ! 0 09 -off aa SLOPED J : 12 Pn�ecr�i� %1-0y/y 017 REGISTRATION # STATE OF TUN, N, n 4 oojol oonorJ WORKERS COMF E LTNTY OF The eg g s ent was acknowledged before me this �� day of \ 20 by C` M Signature o£Notat'* Public Rvsd. 3/10 IN THE CIRCUIT COURT OF THE 15T" .JUDICIAL DISTRICT, IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Petitioner, V. Appellate Division (Civil) Case No.: 2012CAOI107 Town of Gulf Stream, Respondent. AMENDED Petition for Writ of Certiorari from Decision of Town of Gulf Stream Board of Adjustment made May 11, 2012 and rendered May 30, 2012 Denying Petitioner's Application fora revision to an existing Building Permit fora replacement Metal Roof Attorneys for Petitioner Carter Law Firm, LLC 102 NE 2n° Street, Suite 179 Boca Raton, FL .33432 Tel: 561-368-9900 iohnOCar Lei lawfirm.us Louis Roeder 7414 Sparkling Lake Road Orlando, FL 32819 Tel: 407-352-4194 Fax: 866-610-6090 IoU(@Ioumeder.cOm AMENDED PETITION FOR WRIT OF CERTIORARI The Petitioner, CHRISTOPHER F. O'HARE ("O'Hare") respectfully petitions this Court for a Writ of Certiorari to review the Decision of the Board of Adjustment of the Town of Gulf Stream ("Gulf Stream"), denying Petitioner the right to apply for a revision to the existing residential Building Permit allowing for the replacement of a tile roof with a metal roof. BASIS FOR INVOIUNG JURISDICTION This Court has ,jurisdiction to issue a Writ of Certiorari pursuant to the Gulf Stream Code of Ordinances, Section 66-174(10) and under Rule 9.030(c)(3) of the Florida Rules of Appellate Procedure. STANDARD OF REVIEW Where a party is entitled as a matter of right to seek review in the circuit court from an administrative action, the circuit court must determine (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and .judgment are supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419, So. 2d 624 (Fla. 1982); Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995); Cherokee Crushed Stone, Inc. v. City of Miramar, 421 So.2d 684 (Fla. App. 4Dist., 2 1982). As set forth in further detail below, all three elements are present in this instance. First, the lower Tribunal's action in denying O'Hare's permit application resulted from an impermissible act of legislative power in violation of the essential requirements of law. Additionally Gulf Stream's unlawful "legislative act" violated O'Hare's procedural due process rights. Second, in denying O'Hare's application, Gulf Stream refused to accept the plain meaning of its own ordinance. Instead, because of some unspecified suspicions regarding O'Hare's interest in placing a metal roof on his home, it determined that it was necessary to impose a new and unwritten condition on O'Hare's permit application. Third, despite allegations by Gulf Stream representatives of "suspicious conduct" by O'Hare, there is an absence of competent evidence to support such a finding. Accordingly there were no finding of facts made to support Gulf Stream's denial of O'Hare's right to obtain a metal roof permit. To the contrary, there is substantial competent evidence found in the record to support findings that (1) O'Hare was wrongfully denied the right to apply for a metal roof permit; (2) despite being denied the right to apply, O'Hare fully satisfied Gulf Stream's requirements for a metal roof; and (.3) 3 O'Hare is entitled to the issuance of a re -roofing permit allowing him to install a metal roof on his existing residence. STATEMENT OF THE FACTS 1. On August 29, 2011, O'Hare submits a "ROOF/RE-ROOF PERMIT APPLICATION" to Gulf Stream for a replacement roof on the single family residence to which he was malting improvements. The approved roofing material was concrete the which was similar to the existing tile on the roof at the time the rc-roof permit was applied for. 2. The Re -Roofing Permit ("Permit") was issued on or about the day it was applied for. it contained no expiration date although it required that work be commenced within 180 days or it would expire. 3. After the existing roof tile had been removed in preparation for the roof installation, O'Hare became concerned that the underlying structure of the building may not be able to safely support a concrete tile roof. 4. On November 15, 2011, O'Hare's agent, a representative of RootTec, the roofing contractor, met with William H. Thrasher ("Thrasher"), Gulf Stream Planning and Building Department Administrator also Town Manager, to determine the appropriate procedure for modifying the Permit to allow for the installation of metal roofing materials in lieu of the concrete tile material that had been approved. 4 5. On November 1.5, 2011, Thrasher, acting as the Planning and Building Department ("Building Department") Administrator ("Administrator'), responded to the inquiry by O'Hare's agent by stating that "No metal roofs are permitted in Gulf Stream, period". 6. Prior to the November 1.5, 2011 meeting between Thrasher and O'Hare's roofer, O'Hare learned, contrary to Tluasher's representation, that Gulf Stream's building code did in fact allow for the installation of metal roofs on single family homes. While there is a general prohibition of metal roofs contained in Section 70-99 (3) of Gulf Stream's building code, this is pre- empted by an exception contained in Section 70-187 (2) of the code. 7. To determine whether he would qualify for a Section 70-1.87 (2) exception, O'Hare retained Terrence E. Lunn, a licensed professional engineer to inspect the existing structure on December 13, 2011. On December 14, 2011 Lunn provided O'Hare with a signed and sealed Engineering Certification ("Certification") which concluded that the subject structure would not support a concrete tile roof. 8. On Pebruaty 21, 2012 O'Hare provided Thrasher with a copy of the Certification and expressed his intention to apply for a change to the Permit pursuant to Section 70-187 (2). 9. On March 6, 2012 Thrasher, the Town Manager, acting as Administrator, issued an administrative decision (in the form of a letter) informing O'Hare that 5 in order to receive approval to install a metal roof, he would have to obtain a variance as provided for in Gulf Stream's Land Use Code (Chapter 66 of the Gulf Stream Code of Ordinances). 10. O'Hare appealed the March 6, 2012 administrative decision to the Board of Adjustment ("Board") of the Town of Gulf Stream. A public hearing on the appeal was commenced on April 1.3, 2012 and continued on May 11, 2012. On May 11, 2012 the Board orally announced its denial of O'Hare's appeal. 1.1. On May 30, 2012 the Board issued its Notice of Final Action, sustaining the opinion of the Administrator and requiring that O'Hare obtain a zoning variance before proceeding with the installation of a metal roof. RELIEF SOUGHT The Petitioner is seeking a determination that in denying his right to apply for a building permit to install a replacement metal roof on his residence, Gulf Stream exceeded its lawful authority and violated O'Hare's property rights. Based upon such a determination, Petitioner is requesting this court to reverse the decision of the Gulf Stream Board of Adjustment and remand this matter to Gulf Stream with the directive that a building permit forthwith be issued to allow the construction of a metal roof on O'Hare's residential structure. 6 ARGUMENT When all sections of the Gulf Stream Code of Ordinances are read together as it relates to the issue of whether a home owner can re -roof an existing single family structure with metal roofing materials, it is clear that (when factually applicable) Section 70-187 (2) controls. In fact this is irrefutable as evidenced by the admissions of Gulf Stream's attorney, .lolmr Randolph, who made such statements at the first hearing of the Board of Adjustment conducted April 13, 2012. See pages 32 to 3.3 of the transcript. While metal roofs are generally prohibited in the Town of Gulf Stream, the unambiguous language of Section 70-187(2) states that they may be approved in "instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a the roof' In this case O'Hare initially intended to re -roof his existing structure with concrete tiles. He appropriately applied for and was granted a permit that, among other things, enabled him to remove the existing roof and prepare the structure for installation of concrete tiles. Approximately three (3) months after the permit was issued following removal of the existing materials and examination of the underlying structure, O'Hare became concerned that the roof may not be capable of safely carrying the weight of concrete tiles. Accordingly, he requested that his roofing contractor investigate the option of a much lighter metal roof. Upon inquiry to the Gulfstream Planning & Building Administrator, an agent for the roofing contractor was told categorically that metal roofs were not allowed in Gulf Stream and essentially that "O'Hare need not apply". No mention was made of the exception contained in 70-187 (2) by Gulf Stream's building department officials. After learning of the Sec. 70-187(2) exception on his own, O'Hare obtained an Engineer's Certification stating that the existing structure could not support a concrete tile roof and presented this to the Administrator. After the Certification was submitted, the Administrator determined that O'Hare should not be allowed the opportunity to apply for a revised roof permit for a metal roof. (See March 6, 2012 letter -decision by Thrasher) This was based on Thrasher's interpretation of the code, which he said required O'Hare to obtain a zoning Variance pursuant to Gulf Stream's Land Use Ordinance which is codified in Chapter 66 of its Code of Ordinances. (See March 6, 2012 decision letter) While judicial deference should be given to an agency's interpretation of its own rules, this deference ceases when the agency's construction clearly contradicts the unambiguous language of the rule. Kearse v. Department of Health and Rehabilitative Services, 474 So 2d 819 (Fla. 1st DCA 1985). The instant case has facts similar to those in Woodley v. Department of Health and Rehabilitative Services, Dist. 3, (Fla. App. I Dist., 1987). In Woodley, the First District Court of Appeal reversed an agency's denial of a permit due to the agency adding an additional requirement to the unambiguous language of its own rule which it was required to follow. As in Woodley, it is improper for the Building Department to effectively amend its own rules by inserting a new and unwritten provision into the building code it is obligated to follow. To allow this would be tantamount to permitting an administrative body to legislate. In the case at hand, Thrasher's decision must be overturned since it denied O'Hare his right to procedural due process and is a clear departure from the essential requirements of the law. The only subject of the public hearings below was the review of Thrasher's denial of O'Hare's entitlement to apply for a metal re -roofing permit. The legal sufficiency of the Certification was never called into question by the Administrator prior to the Administrative Appeal. As such there was no issue before the Board on this appeal that concerned the reliability of the Certification. Nonetheless the Board primarily focused on this non -issue and arguably became fixated on concerns about the reliability of the Certification. While never clearly articulated, it is evident from statements made at the Hearings that the Board and the Administrator have suspicions that there is something dubious about O'I-Iare's intentions of installing a metal roof and that the Engineering Certification he submitted is somehow tainted or unreliable. Por these reasons the Board perceived that the Department possessed inherent authority to require an independent review and "report" from the Town's engineer before it could accept a permit application from O'Hare. It is indisputable that the Board's decision to affirm the Administrator's decision was the result of its singular focus and debate on this non -issue. (See page .33 May 11, 2012 bearing) Confusion was added to this debate by members of the Board who mischar•acterized the Certification requirement of 70-187 (2) as calling for an engineering "report". Again, questions of reliability and/or verification of the Certification were not issues to be considered in the Appeal. Even if these issues were relevant to the Board's decision, there is an absence of substantial competent evidence in the record to show cause why O'Hare's Certification should not be accepted by the Department. By contrasting Thrasher's March 6"' administrative ruling with the May to 30`x' appellate decision of the Board, it is obvious that the Town of Gulf Stream failed to comply with the essential requirements of the law, including its own legislative enactments when considering O'Hare's request to re -roof his residence with metal materials: "A variance application would be required [in connection with O'Hare's request for a modification of his existing building permit] to allow the use of metal roof materials." March 6, 2012 administrative ruling of Planning and Building Department. "The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because [the applicant has] not allowed the Town to verify the engineering report fit] submitted, with regard to the strength of the structure." May 30, 2012 decision gfBoard of Adjustment. Even if sufficiency and/or legitimacy of the subject Certification was an issue before the Board, which it was not, there is no evidence to suggest that the Certification did not satisfy Gulf Stream's own statutory requirements for obtaining permission to install a metal roof. Clearly O'Hare's procedural dire process rights have been violated by the Town of Gulf Stream. The factually correct, although legally invalid reason that the Administrator denied O'Hare the right to obtain a metal re -roofing permit, is It that the Town of Gulf Stream has a bias against metal roofs and does not wish to see them on homes inside its borders. (See page 17, line 21 of April 13, 2012 hearing) which reinforces Thrasher's November 15, 2011 declaration "no metal roofs in Gulf Stream, period." In Gulf Stream's attempt to legallyjustify the unlawful imposition of this bias against O'Hare, both the Administrator and several Board Members made the following curious statements on the record which illustrate its eagerness and creativity to thwart O'Hare's right to a metal roof: "It appears obvious to me that the metal roofs are not desired, and it is not something that, on a single-family home, that the residents want to have appearing." Seepage 17 of April 1.3`r' Hearing -Thrasher. "Just to say that because they provided this document (engineer's certification) and because the code says it should prevail, it should have some.... the town should have some voice in what.... their engineers, their experts might say" Seepage 18 of April 13"' Hearing -Thrasher. "And again, going back to the intent of the manual, one of our major 12 items was to prohibit metal roofs." Seepage 2.3 of May 11 "' Hearing -Board Member Fred B. Devitt. "I believe under the circumstance there's a variance required, because [there's] so much question with your engineers report. See Page 26 of April 13°i Hearing -Board MentberJoan K Ortwein. O'Hare does not dispute Gulf Stream's right to be biased against metal roofs. It is recognized that Gulf Stream possesses the power to legislate and adopt provisions in its Code of Ordinances that allow it to implement such biases. O'Hare simply requested that the Town of Gulf Stream lawfully apply the section of its "existing" building code dealing with residential re -roofing according to its plain and unambiguous terms so that he could complete the installation of a roof that is safe for him and his family. Should Gulf Stream later wish to amend its code it must do so in accordance with constitutional and legal principles and constraints and not by administrative action. WHEREFORE, the Pefidoner respectrully requests this Court exercise jurisdiction and grant a Writ of Certiorari quashing the decision of the Board of Adjustment of the Town of Gulf Stream and determining that Petitioner has satisfied 13 the requirements for the metal roof exception set forth in Section 70-187 (2) of Gulf Stream's Code of Ordinances. Petitioner further requests that tivs matter be remanded to the Town of Gulf Stream with instructions that it compel its Building Department Administrator to forthwith take all appropriate action consistent with the Court's decision. Dated:.luneX-�- , 2012. Respectfully submitted, JohA E: Carter, Esq. Ca-Coun el for Petitioner Florida B• r No. 460036 102 NE 2 a Street, Suite 179 Boca Raton, FL .3.3432-3908 Telephone: (561) 368-9900 Facsimile: (561) 368-8499 r �EE�Wt 6,eder, Esq. Co -Counsel for Petitioner Florida Bt No. 0004.316 7414 Sparkling Lake Road Orlando, FL, 32819 Telephone: (407) 352-4194 Facsimile: (866) 610-6090 14 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER O'HARE, APPELLATE DIVISION (CIVIL): "AY" CASE NO. 502012CA011078XXXXMB Petitioner, V. TOWN OF GULF STREAM, Respondent. Opinion filed: ,IAN 2 8 2013 Petition for Writ of Certiorari from Town of Gulf Stream Board of Adjustment For Petitioner: John Carter, ESq. 102 NE Second St., Ste. 179 Boca Raton, FL 33432 Louis Roeder, Esq. 7414 Sparkling Lake Rd. Orlando, FL 32819 For Respondent: John C. Randolph, Esq. 505 South Flagler Dr., Ste. 1100 West Palm Beach, FL 3.3401 PER CURIAM. The Petition for Writ of Certiorari is DENIED. SASSER, KELLEY, and BRUNSON, JJ, concur IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CHRISTOPHER F. O'HARE, Petitioner, vs. Town of Gulf Stream, Respondent. Case No.: 4D13-621 L.T. No.: 2012 -CA -01107 AMENDED PETITION FOR WRIT OF CERTIORARI Petitioner, Christopher F. O'Hare ("O'Hare"), petitions this Court to issue a writ of certiorari quashing the decision of the circuit court below and remanding with instructions for the circuit court to: 1) quash the decision denying O'Hare's permit application, which sought to install a metal roof on his single-family residence and requiring O'Hare to apply for a variance before any metal roof will be permitted; and 2) instruct the circuit court to require the Town of Gulf Stream to advise O'Hare as to the type of metal roof that would be appropriate to the building and the neighborhood. This "second-tier" certiorari proceeding arises out of the circuit court's per curiam affirmance of the decision of the Commission of the Town of Gulf Stream (the "Town") sitting as the Board of Adjustment (the "BOA"), which denied O'Hare's request for a revision to his existing residential Building Permit (the "Permit"). The requested Permit revision would have permitted O'Hare to substitute the previously -approved concrete tile roof with a metal one. O'Hare had received an engineer's certification that the structure of O'Hare's residence would not support concrete tile. The BOA concluded that O'Hare was required to apply for a variance before he would be permitted to install a metal roof because O'Hare would not allow the Town's engineer to inspect the premises and verify the professional opinion of O'Hare's engineer that O'Hare's residence could not support a concrete tile roof, a condition not required by the plain language of the Town's design manual (the "Code"). The question here is whether the Code allowed the Town to reject O'Hare's Permit revision application on this basis. O'Hare established below that it did not. BASIS FOR INVOKING JURISDICTION Article V, section 4(b)(3) of the Florida Constitution gives the district courts of appeal jurisdiction to issue writs of certiorari. A circuit court's review of quasi- judicial actions by local governments is by way of a petition for certiorari, such as the petition O'Hare filed in the circuit court below. See Miami -Dade County v. Omnipotent Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Fla. R. App. 9.100(c)(2). 2 The circuit court's decision to grant or deny certiorari is reviewable in this Court by way of a petition for certiorari, which is often called "second-tier certiorari review." Id. On second-tier certiorari review, this Court reviews whether the circuit court (1) afforded procedural due process and (2) applied the correct law. Id. Jurisdiction is appropriate in this case because, as shown below, the circuit court failed to apply the correct law which resulted in a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 884, 889 (Fla. 2003) (discussed infra). This Amended Petition for Writ of Certiorari is timely filed. O'Hare filed his original Petition within thirty (30) days of the circuit court's per curiam denial of O'Hare's Amended Petition for Writ of Certiorari, which was rendered below on January 28, 2013. See Fla. R. App. P. 9.100(c)(2) (applying the appellate rules to certiorari review of quasi-judicial actions by local governments and requiring petition to be filed within thirty (30) days of rendition of order to be reviewed). At the time O'Hare filed the original Petition in this Court, he sought leave to file this Amended Petition for Writ of Certiorari. On March 18, 2013, this Court issued an Order granting O'Hare leave to file an Amended Petition and Amended Appendix on or before April 2, 2013. O'Hare complied with that Order and, therefore, this Amended Petition is timely filed. 3 STATEMENT OF THE CASE AND OF THE FACTS On August 29, 2011, O'Hare submitted a "ROOF/RE-ROOF PERMIT APPLICATION" to the Town seeking to replace the roof on a single-family residence he was refurbishing. (Amended Appendix "A" 1.1) The proposed roofing material was a concrete tile that was similar to the tile that existed on the roof at the time O'Hare submitted the permit application form. (Al.) The Town granted O'Hare's permit application and issued the Permit authorizing the installation of the concrete tile roof on or about August 29, 2011. (A1.) The Permit did not contain a specific expiration date, but it required the work to be commenced within 180 days or the Permit would expire for lack of use. (A 1.) After O'Hare removed the old concrete tile in anticipation of installing the new concrete tile in accordance with the Permit, O'Hare became concerned that the building would not safely support the new concrete tile roof. (See A15:19-21.) Consequently, O'Hare consulted Terrence E. Lunn, a licensed, professional engineer. (A15:19-21.) Lunn gave O'Hare a verbal opinion that the building would not support the proposed concrete tile roof. (A15:20-21.) Consequently, on November 15, 2011, O'Hare's roofing contractor, Roofrec, Inc. ("Roofrec"), filed a permit revision request, which sought to revise 1 Citations to the Amended Appendix will be in the following format: At: I. The first number indicates the tab number of the relevant document in the appendix and the second number denotes the actual page of that document. If the citation is generally to the document as a whole, only the tab number will be provided. 13 the Permit to allow Rooffec to install a metal roof on the home (the "Revision Request"). (A4.) In the Revision Request, RoofFec's representative stated: "customer wants to change to metal roof." (A4; see also A 15:20.) At the hearings on the appeal from the denial of the Revision Request, O'Hare's counsel denied that O'Hare ever said he simply "wanted" a metal roof and represented, under oath, that O'Hare wanted any type of roof that was proper under the building code and that could be supported by the existing building. (A13:22-23; A15:14-15, 30.) O'Hare's counsel also stated that O'Hare would have preferred a shingle or a shake roof to a metal one, but that shingle and shake roofs were absolutely prohibited by the Code. (A 13:22-23; see also A8.) In response to O'Hare's Revision Request, the Town's Planning and Building Department Administrator and Town Manager, William H. Thrasher ("Administrator Thrasher"), stated that "No metal roofs are permitted in Gulf Stream, period." (A2:2-3; A13:4; A14; A15:7.) Administrator Thrasher misrepresented the plain language of the Code and failed to disclose that the Code actually does permit metal roofs under certain circumstances. (See A7, § 70- 187(2) of the Code.) Indeed, O'Hare subsequently learned that the Code did, in fact, provide an exception for metal roofs under certain circumstances. (See A 15:7, 22.) Although Article V, section 70-99(3) and Article VI, section 70-187(2) both generally state 5 that all metal roofs are prohibited, Article VI, section 70-187(2) also includes an exception which reads, in pertinent part: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof. Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. (A7:2; see also A8 (generally prohibiting metal roofs).) Given the two requirements of Article VI, section 70-187(2) of the Code, O'Hare asked Lunn to put his verbal opinion that the building would not support a concrete tile roof into writing. (See A5; A15:20-21.) Thereafter, Lunn issued a certification dated December 14, 2011, which stated: (A5.) The existing roof framing will not support the design loads of a concrete or clay tile roof. The lightest roofing system possible is needed. I certify to the best of my knowledge, belief and professional judgment that the referenced roof framing will not support a tile roof. O'Hare submitted Lunn's report to Administrator Thrasher in support of his Revision Request and asked Administrator Thrasher to advise him as to the type of metal roof that would be appropriate to the structure and the neighborhood. (See A2; A6:3.) Despite Lunn's certification as required by Article VI, section 70- 187(2) of the Code, on March 6, 2012, Administrator Thrasher denied O'Hare's 0 Revision Request and stated that O'Hare could not install a metal roof on the premises unless and until he applied for and obtained a variance. (A2; A6.) Administrator Thrasher stated: The Town does not have a "list of metal roof materials" which you requested as such roof materials are prohibited by two section [sic] of the code; section 70-187(2) and 70-99(3), with section 70-99(3) being the most restrictive of the two. "Prohibited. Metal roofs (except unpainted copper when used as a decorative accent or a minor accessory structure)". [sic] Therefore, a variance application would be required to allow the use of metal roof materials. ... In the event a variance application is filed, permission to enter the structure will be necessary so that technical experts can properly evaluate the applicable structural components. (A6:3 (emphasis added).) Because O'Hare disagreed that a variance was required under the Code, O'Hare appealed Administrator Thrasher's determination that all metal roofs are prohibited without a variance. (A2; A13; A14; A15.) The BOA held two public hearings related to O'Hare's appeal of Administrator Thrasher's decision, one on April 13, 2012, and another on May 11, 2013. (A2; A3; A13; A15.) At the April 13, 2012, hearing, O'Hare's counsel, Lou Roeder, explained that a variance was not required because the applicable Code contained an exception to the prohibition against metal roofs where the homeowner was re- roofing an existing building and had produced an engineer's certification that the building would not support a tile roof. (A 13:4-13.) Roeder argued that N Administrator Thrasher's conclusion that a variance was required before a metal roof could be permitted was an erroneous interpretation of the plain language of the Code. (Id.) He further argued that although Article V, section 70-99(3) and Article VI, section 70-187(2) appear to conflict on the question of metal roofs, Article VI, section 70-186(b) expressly states that in the event of a conflict between Articles V and VI, the provisions of Article VI prevail. (A7:1.) Consequently, Roeder argued that the Code did not require O'Hare to seek a variance and that because O'Hare met the terms of the exception, the Town should, in accordance with Article VI, section 70-187(2), advise O'Hare as to the type of metal roof that would be appropriate to the structure and the neighborhood. (A13:4-13.) Administrator Thrasher responded that he believed that items that were prohibited by the Code required a variance. (A13:15-16.) In addition, Administrator Thrasher admitted that there was a conflict in the Code between 70- 99(3) and 70-187(2). (A13:16.) Indeed, Administrator Thrasher stated that he did not disagree with O'Hare's interpretation of the Code, but he did not think that the mechanism for the exception provided in 70-187(2) should be driven by the homeowner. (A13:17.) Administrator Thrasher contended, without any authority from the Code or elsewhere, that a single engineer's certification should not be sufficient to trigger the exception. (A13:17.) Administrator Thrasher further N contended that the Town should have some voice in the process. (A13:18.) He argued that this was particularly true in this case where the home had been built with a concrete tile roof in 1972 and then re -roofed with similar materials in 1999. (A13:18.) Administrator Thrasher admitted, however, that he did not know what had transpired between 1999 and 2012 to result in Lunn's certification that the structure would not support a concrete tile roof. (A13:18.) O'Hare's counsel, Roeder, responded that the Code did not provide for such a review by the BOA or the Town. (A13:10, 22, 24, 25, 32-32.) Nevertheless, the BOA inquired as to whether, in an effort to resolve the matter, O'Hare would agree to allow one of the Town's engineers to inspect the property and to confirm or deny Lunn's certification regarding the building's ability to support concrete tile. (A13:23-25.) Roeder responded that he did not believe the Town was entitled to question Lunn's certification or that, given the plain language of the Code, O'Hare would allow such an inspection without further justification. (A13:24.) Roeder also stated that the only question before the BOA was whether Administrator Thrasher was correct that O'Hare could not install a metal roof without first applying for and obtaining a variance. (A13:4, 21, 25.) Commissioner Devitt represented that the Town enacted the exception in Article VI, section 70-187(2) because, at the time the Town was adopting its new Code, there were pre-existing shingle and shake roofs and the new Code was going M to absolutely prohibit those roofing materials. (A13:28-29.) As a result, the Town needed to provide those homeowners with an alternative material to be used in any re -roofing project if it were determined that the roof framing on those homes would not support concrete tile. (A13:28-29.) Commissioner Devitt stated that given that history, the Town should be allowed to question Lunn's certification because the building had supported a concrete tile roof for nearly forty years. (A13:29.) An architect who was present at the hearing as a member of the public advised the BOA that there had been changes in the safety values of wood over time. (A13:30.) The architect represented that a more conservative engineer might give the wood a lower safety value than a less conservative one, which could create differences of opinion among engineers. (A13:30.) Roeder responded that Florida's recent experience with hurricanes have changed the codes as well. (A13:31.) After Roeder's response, several Commissioners asked Roeder if O'Hare would allow the Town to inspect the building and to verify Lunn's certification. (A13:31.) Roeder answered that O'Hare had not previously been willing to do so. (A13:31.) Roeder indicated that O'Hare wanted a decision on whether a variance was required first and, only then, could the Town consider whether it could seek verification of Lunn's certification. (A13:32.) 10 In response, the Town's counsel, Randolph, stated that two questions were presented to the BOA for review: 1) whether a variance is required at the outset; and 2) if not, whether the Town is permitted to test the accuracy of the engineer's certification provided by the homeowner as part of the exception process. (A13:27.) After further discussion, Randolph advised the BOA that a variance was not required, but stated that he believed, without any supporting authority from the Code or elsewhere, that the BOA could require verification of the homeowner's certification. (A13:32-33.) Randolph did not assert that Article VI, section 70- 187(2), as drafted, was intended to or did permit the Town to verify the engineer's certification provided by the homeowner. (A13:32-33.) Despite Randolph's advice that a variance was not required, the BOA voted to defer action on O'Hare's variance -related appeal until the next meeting scheduled for May 11, 2012. (A2; A13:36-38.) The BOA stated that the deferral would allow time for the Town to hire an engineer to inspect the roof and to agree or disagree with Lunn's certification. (Id.) The BOA stated that if the Town's engineer agreed with Lunn, it would be a "done deal." (A13:35.) The BOA also stated, however, that if the Town's engineer disagreed with Lunn, then the Town's engineer and Lunn could jointly select a third engineer to break the tie. (A2; A13:36-38.) The BOA also stated that if O'Hare would not allow the Town's 11 engineer to inspect the premises, it would decide the appeal at the next meeting in May. (Id.) At the next public meeting on May 11, 2012, Randolph reported that O'Hare would not agree to allow the Town's engineer to verify Lunn's certification. (A3; A15:3-4.) Roeder stated that O'Hare would not permit the Town's engineer to inspect the property unless certain questions were answered first, including but not limited to: 1) who would pay the engineers' fees;2 2) who would be liable if the Town's engineer and the third engineer disagreed with Lunn, the Town forced O'Hare to install a concrete tile roof, and the concrete roof subsequently failed; and 3) whether the Town had any precedent to support its attempt to impose additional conditions on O'Hare for the approval of a metal roof that are not expressly included in the Code. (A3; A15:4-7.) Roeder argued that the Town kept moving the goal posts. (A15:7.) When O'Hare first asked about a metal roof, he was told "no metal roofs, period." (Id.) Then, when O'Hare found out about the exception and complied with it, the Town responded that O'Hare had to obtain a variance. (A15:7.) Next, at the April hearing, the Town admits that O'Hare's interpretation of the Code may be correct, 2 Roeder appears to be referring to the fees of the Town's engineer as well as any third engineer selected by Lunn and the Town's engineer in the event of any disagreement between the first two engineers. At the conclusion of that May 11, 2012, hearing, one Commissioner indicated that the Town would pay for its own engineer, but he did not address how any third engineer might be paid. (See A 15:32.) 12 but indicates that metal roofs are not desirable. (A15:7-8.) At the conclusion of the April hearing, the BOA decides to defer a ruling on O'Hare's simple appeal of Administrator Thrasher's ruling that a variance is required until O'Hare agrees to allow the Town's engineer to verify Lunn's certification. (A15:8.) Roeder further argued that O'Hare has been proceeding by the book, but the Town is seeking to hold him to a higher standard than that required by the Code. (A15:8-9.) Roeder asserted that the plain language of the Code simply did not provide the Town with the right to challenge the engineer's certification provided by the homeowner. (A3; A15:7-11, 13, 16, 23-24, 27.) He pointed out, yet again, that the only ruling O'Hare appealed was Administrator Thrasher's conclusion that a variance was required before a metal roof could be approved for O'Hare's property. (A 15:11.) Randolph responded that at the April meeting, the ruling was that O'Hare was entitled to receive a variance subject to verification of Lunn's certification, but that because O'Hare would not agree to that procedure, he advised the BOA that they must now decide whether a variance is, indeed, required. (A15:12.) Roeder responded that the Town was imposing a requirement on the metal - roof exception contained in Article VI, section 70-187(2) that is not required by the Code, and that the BOA should keep the two issues separate. (A15:13.) He also complained that the Town was casting doubt on Lunn's certification for no known reason. (A15:13.) Roeder stated that it is logical that when a building is thirty-five 13 years old, like the one at issue here, there will be material fatigue over time. (A15:13.) Moreover, the applicable codes have become more stringent over time on issues like wind and weight loads. (Id.) Roeder also reminded the BOA that the motion at the April meeting was not to approve the requested exception or to say that a variance was not required, but to defer ruling on O'Hare's appeal in its entirety until the Town could verify Lunn's certification, which is a condition not imposed by the Code. (A15:14.) Roeder argued that the Town was seeking to conflate the two issues. (Id.) In response to Roeder's arguments, Vice Mayor Orthwein stated that the Town wanted to verify Lunn's report because the Town simply could not accept the certification in light of the fact that the house had had a concrete tile roof for thirty-five years. (A15:15.) Roeder responded that to impose a requirement of verification was a monumental shift given the Code's plain language. (A15:16.) Roeder argued that the Code plainly states that once the homeowner establishes the elements for the exception, i.e., re -roofing and engineer's certification, the Town must tell the homeowner what style and type of metal roof it may install. (A15:16.) Administrator Thrasher pointed out that the Revision Request completed by O'Hare's contractor stated merely that O'Hare wanted to change to a metal roof; it 14 did not reference any structural problem with the approved concrete tile roof. (A15:18.) The Town Clerk then testified that she spoke to "Diana" at RoofTec who stated that O'Hare just wanted a metal roof and that Diana did not know why the tile roof had not been laid because the permitted underlay for the the was already in place. (A15:19.) O'Hare's counsel responded that "Diana" was not the contractor; she was merely a contact person, and anything she had to say was irrelevant. (A 15:20.) Thereafter, Mayor Koch advised Roeder that if O'Hare would not allow the Town to verify Lunn's certification, the BOA could not proceed with O'Hare's Revision Request. (A]5:23.) Once again, Commissioner Devitt contended that Article VI, section 70-187(2) was put into the Code to take into account pre- existing shake or shingle roofs, which are now absolutely prohibited by the Code. (A15:23; A8.) Roeder responded that the Code says no such thing and that if the Town had wanted to limit metal roofs only to those re -roofing projects that where replacing shingle or shake, the Code could have said that, but it did not. (A15:24.) He reiterated that roofs deteriorate over time and cannot withstand the same loads. (A15:25.) He also restated O'Hare's position that a variance was not required, O'Hare had met the only stated conditions for the exception, and that nothing in 15 the Code allowed the Town to reject Lunn's certification in the absence of verification. (A15:26-27.) Indeed, Randolph, the Town's counsel, expressly agreed that a variance was not required for a metal roof under Article VI, section 70-187(2) of the Code. (A 15:27.) Randolph stated, however, the question now is whether the Town could require a variance in the absence of verification of Lunn's certification. (A15:27.) Randolph had previously asserted that he believed it was reasonable for the Town to be able to verify the engineer's report provided by the homeowner. (A15:12.) Randolph did not assert, however, that the Code currently provided the Town with that right. (A 15.) Roeder responded that verification is not required or permitted by the plain language of the Code. (A15:28.) Roeder added that the language of Lunn's certification was proper and the standard language used by engineers making similar certifications. (A15:28-29.) Consequently, Roeder asked if the problem was simply that the Town did not like metal roofs. (A15:28-29.) Randolph responded that it is not accurate to say that the Town does not like metal roofs because the exception expressly allows metal roofs. (A15:29.) Randolph stated, however, that because the home had had a concrete roof for many years and O'Hare's Revision Request merely stated that he wanted to change to a metal roof, the Town had reason to want to verify Lunn's certification. (A 15:29.) 16 Roeder denied that O'Hare ever said he "wanted" a metal roof. (A15:30.) That was a representation that was made by the contractor's representative, not by O'Hare himself. (Al 5:30.) O'Hare wants any roof that is appropriate and will be supported by the existing roof framing. (A15:15, 30.) Indeed, Roeder stated that his client would love to have a concrete tile roof, if the building could support it. (A15:15; see also A13:22-23 (stating that if O'Hare could not have concrete tile, he would prefer shingle or shake, but those types of roofs are strictly prohibited).) After further discussion about why the BOA believed verification of Lunn's certification should be permitted, the BOA voted to affirm Administrator Thrasher's decision that O'Hare must obtain a variance before he would be permitted to install a metal roof. (A3; A15:32-34.) The BOA based its decision on its conclusion that because the Town had not been permitted to verify Lunn's certification, O'Hare did not comply with the exception contained in Article VI, section 70-187(2), and therefore, a metal roof was prohibited without a variance. (1d.) The BOA did not assert, however, that the original intent of Article VI, section 70-187(2) was that the Town was entitled to question and verify the engineer's certification provided by the homeowner. (A15.) The Town issued its Notice of Final Action on O'Hare's appeal on May 30, 2012. (A9.) The Notice of Final Action sustained Administrator Thrasher's conclusions and required that O'Hare obtain a variance before proceeding with the 17 installation of a metal roof. (A9.) The Notice of Final Action stated, in pertinent part: The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not allowed the Town to verify the engineering report you submitted, with regard to the strength of the structure. (A9 (emphasis added).) Although the BOA stated that it was affirming Administrator Thrasher's conclusions, the BOA and Administrator Thrasher actually cited different reasons for why a variance was required. (Compare A9 with A6.) The BOA concluded that a variance was required because O'Hare would not allow the Town to verify Lunn's certification; whereas, Administrator Thrasher had concluded that there was no exception allowing for metal roofs and that the only way a metal roof could be approved was for the homeowner to obtain a variance. (Id.) The BOA's Notice of Final Action failed to acknowledge that O'Hare's appeal was limited to the question of whether a variance was required, not whether the Town could require verification as part of the process of qualifying for the exception expressly provided by Article VI, section 70-187(2). On June 18, 2012, O'Hare filed an amended petition for writ of certiorari to the Circuit Court, Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. (A10.) After the Town responded (Al 1), the circuit court issued a per 1D curiam order denying O'Hare's amended petition without opinion (the "Order"). (Al2.) The court filed the Order on January 28, 2013. (Al2.) Between the time O'Hare filed the amended petition for certiorari in the circuit and the rendition of the Order, the Town amended Article VI, section 70- 187(2) of the Code. The proposed amendment read, in pertinent part, as follows: ' Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re -roofing of existing structures based -apesubject to receipt by the town of an engineer's certification that the existing structure will not support a tile roof, said certification to aooend the engineer's study(ies) and report(s) supporting said certification and subject further to an engineer appointed by the town confirming said engineer's certification. Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. (A17:8 (emphases and striking original); see also A16 (Ordinance 12/4 as enacted).) NATURE OF THE RELIEF SOUGHT O'Hare files this Amended Petition for a Writ of Certiorari seeking second- tier review of the circuit court's Order denying the amended petition for a writ of certiorari filed below. O'Hare requests that this Court quash the Order below, remand with instructions for the circuit court to quash the BOA'S decision and to require the Town to advise O'Hare of the nature and type of metal roof he is permitted to install on his residence without the need for a variance. 19 ARGUMENT The Amended Petition in this case should be granted and the Order quashed because the Order violates clearly established principals of law and results in a miscarriage of justice. Kaklamanos, 843 So. 2d at 889. O'Hare complied with the plain language of the Code by: 1) establishing that he was re -roofing his residence; and 2) providing a proper certification from a licensed, professional engineer that the existing structure would not support a concrete tile roof. The Code does not authorize the Town to require the homeowner to allow the Town's engineer to inspect the property and, if the Town's engineer disagrees with the provided certification, to hire and pay for a third engineer to break the tie. Likewise, the Code does not require the homeowner to obtain a variance in the event the homeowner refuses to comply with conditions imposed by the Town that are not contained within the plain language of the Code. Therefore, by failing to quash the BOA's affirmance of Administrator Thrasher's variance requirement on certiorari review, the circuit court departed from the essential requirements of law by failing to follow clearly established law, which resulted in a miscarriage of justice. Consequently, the Order should be quashed and the case remanded with instructions for the circuit court to quash the BOA's decision requiring O'Hare to obtain a variance. 20 Standard of Review On second-tier certiorari review, this Court must determine whether the circuit court (1) afforded procedural due process; and (2) applied the correct law. Miami -Dade County, 863 So. 2d at 199. This two-pronged, second-tier standard of review is simply another way of asking whether the circuit court "departed from the essential requirements of law." Id. (citations omitted). Therefore, the ultimate consideration is whether there has been "a violation of a clearly established principal of law resulting in a miscarriage of justice." Kaklamanos, 843 So. 2d at "Clearly established law" is not limited to case law. It "can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law." Id. at 890. Thus, a circuit court's failure to apply controlling legal precedent provides a basis for granting certiorari review. United Auto. Ins. Co. v. County Line Chiropractic Center, 8 So. 3d 1258, 1259-60 (Fla. 4th DCA 2009); Stranahan House, Inc. v. City of Ft. Lauderdale, 927 So. 2d 1068, 1069 (Fla. 4th DCA 2006); Concerned Citizens of Bayshore Community, Inc. v. Lee County, 923 So. 2d 521, 523 (Fla. 2d DCA 2005); Maple Manor, Inc. v. City of Sarasota, 813 So. 2d 204 (Fla. 2d DCA 2002).3 3 For a thorough discussion of the concept of applying the "correct law" in the context of second-tier certiorari review, the Court may wish to review Walbolt, 21 "The standard of appellate review on issues involving the interpretation of statutes is de novo." B. Y. v. Dept of Children & Families, 887 So. 2d 1253, 1255 (Fla. 2004); see also Home Const. Management, LLC v. Comet, Inc., _ So. 3d _, 38 Fla. L. Weekly D294, *1 (Fla. 4th DCA Feb. 6, 2013) (citing Tasker v. State, 48 So. 3d 798, 804 (Fla. 2010)). Generally, however, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. Las Olas Tower Co. v. City of Ft. Lauderdale, 742 So. 2d 308, 312 (Fla. 4th DCA 1999) (citations omitted). That deference is not absolute, however. Id. (citation omitted). Indeed, when the agency's construction of a statute amounts to an unreasonable interpretation or is clearly erroneous, it cannot stand. Id. (citation omitted); see also GO Comm. ex rel. Hale v. City of Minot, 701 N.W.2d 865, 871 (N.D. 2005) ("`We will ordinarily defer to a reasonable interpretation of a statute by the agency enforcing it, but an interpretation which contradicts clear and unambiguous statutory language is not reasonable."' (quoting Lee v. N.D. Workers Comp. Bureau, 587 N.W.2d 423, 425 (N.D. 1998))). Here, the plain language of the applicable Code provision provides that a homeowner, like O'Hare, is entitled an exception to the prohibition against metal roofs, if the structure is being re -roofed and an engineer has certified that the Sylvia H. and Sevi, Leah A., The "Essential Requirements of Law" — When Are They Violated?, 85 MAR Fla. B.J. 21 (March 2011). 22 existing structure will not support a tile roof. (AT) Nowhere in Article VI, section 70-187(2), or in any other section of the Code, is the homeowner required to allow the Town's engineer to inspect the premises to verify the engineer's certification provided by the homeowner. Rather, the plain language of the Code clearly states that once the re -roofing homeowner has produced the engineer's certification, the Town must advise the homeowner as to the type of metal roof that may be installed as is appropriate to the building design and the neighborhood. (AT) No other interpretation is reasonable given the plain language of the Code. Indeed, this interpretation of Article VI, section 70-187(2) is the only reasonable interpretation under a proper reading of the Code as a whole. It is undisputed that shingle and shake roofs are absolutely prohibited in the Town. (See A7; A8; A13:14-15, 22-23, 28-29; A15:23-24.) Consequently, if a structure cannot support concrete tile, the only suitable — and lighter — roofing material allowed by the Code is metal. (See A7; A8.) Therefore, the Town enacted Article VI, section 70-187(2) to provide homeowners whose structures could not support cement tile roofs with some kind of alternative roofing material. (See Al 3:14-15, 22-23, 28-29; A15:23-24.) In doing so, the Town used clear and unambiguous language that once a homeowner establishes through a licensed engineer's certification that the structure will not support concrete tile, the Town must advise the homeowner as to the style and type of metal roof that is appropriate to the 23 structure and the neighborhood. (A7.) The plain language of Article VI, section 70-187(2) did not contemplate or provide that the Town would want or need to verify the engineer's certification submitted by the homeowner. (A7.) Therefore, Article VI, section 70-187(2) clearly and unambiguously did not require the homeowner to permit an inspection of his premises by the Town's engineer as a condition of satisfying the exception. Even the Town seems to have recognized this to be the case. After the BOA denied O'Hare's appeal of Administrator Thrasher's decision requiring a variance, the Town amended Article VI, section 70-187(2) of the Code (the "Metal -Roof Amendment"). See Keck v. Eminisor, 104 So. 3d 359, 369 (Fla. 2012) (stating that courts may consider a subsequent amendment to a statute to assist it in interpreting the original legislation) (citing Prison Rehab. Indus. v. Betterson, 648 So. 2d 778, 779 (Fla. 1st DCA 1994) (quoting Dade County v. AT & T Info. Sys., 485 So. 2d 1302, 1304 (Fla. 3d DCA 1986))); see also State Dept. of Highway Safety & Motor Vehicles v. Scott, 583 So. 2d 785, 787 (Fla. 2d DCA 1991) (granting a petition for a writ of certiorari and stating that its interpretation of the relevant statute was consistent with the principle that courts have the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent 4 The original version of Article VI, section 70-187(2), which was in effect at the time of O'Hare's appeal, will continue to be referred to as Article VI, section 70- 187(2). 24 legislation) (citations omitted). In the Metal -Roof Amendment, the Town, for the first time, made the Town's right to verify the homeowner's engineer's certification a condition precedent to the metal -roof exception. (A17.) The Metal - Roof Amendment now requires the homeowner to: (1) produce not only the engineer's certification, but also the engineer's studies and reports; and (2) allow the Town's engineer to inspect to premises to determine whether the Town's engineer agrees that the structure cannot withstand a cement tile roofs (A16.) Given the new conditions contained in the Metal -Roof Amendment, it is clear that the Town changed the pre-existing Code; it did not merely clarify it. The Metal -Roof Amendment imposes new and different requirements on the pre- existing exception contained in the Code. These conditions did not exist in the clear and unambiguous language of Article VI, section 70-187(2) prior to the Metal -Roof Amendment. These are entirely new requirements that did not exist before O'Hare made his Revision Request or appealed Administrator Thrasher's conclusion that O'Hare could not install a metal roof without a variance because metal roofs were absolutely prohibited. Indeed, neither the members of the BOA, Administrator Thrasher, nor attorney Randolph, asserted (or even suggested) that 5 The Metal -Roof Amendment is silent on the question of how a conflict between the Town's engineer and the homeowner's engineer will be resolved and whether the Town will assume liability for or insure against damage to the structure if the Town's engineer is wrong in concluding that the structure will support a concrete tile roof. (See A15:4-7 (raising questions regarding cost and liability that, when asked, were not answered by the Town).) 25 the plain language of Article VI, section 70-187(2) already provided or was intended to provide the right of verification. (A13; A15.) Rather, they simply asserted that it would be reasonable for them to verify Lunn's certification under the facts. (See, e.g., A13:17, 24-26, 29, 32-33; A15:12, 15, 18, 23, 25, 32.) Thus, given the plain language of Article VI, section 70-187(2), the BOA should have reversed Administrator Thrasher's erroneous conclusion that a variance was required and concluded that O'Hare was permitted to install a type of metal roof the Town determined to be appropriate to the structure and the neighborhood. (AT) Therefore, a writ of certiorari should issue to quash the Order in this case. Contrary to the Town's assertion below, Article V, section 70-99(3) of the Code does not dictate a different result. Article V, section 70-99(3) is the general metal -roof prohibition that applies to the Town as a whole. (A8.) Article V, section 70-99(3) clearly states that metal roofs are generally prohibited. (A8.) But Article V, section 70-99(3) is superseded by Article Vl, section 70-187(2), which applies in the specific district in which O'Hare's residence is located. (See A7.) Article VI, section 70-186(b) specifically provides that "where the provisions of this article [Article VI] conflict with those in article V, the provisions of this article shall prevail." (A7.) Moreover, Randolph, the Town's own counsel, expressly stated that metal roofs are not generally prohibited because the exception under section 70-187(2) expressly allows them under certain circumstances. (A15:29) 26 Therefore, the general prohibition against metal roofs contained in Article V, section 70-99(3) is not applicable where, as here, the building needs to be re -roofed and an engineer has certified that the existing structure will not support a concrete tile roof otherwise preferred by the Code. (Compare A8 (§ 70-99(3)) with A7 (§ 70-187(2).) Even if the Code did not expressly provide that the Article VI provision prevails over conflicting sections of Article V, the result would be the same under established Florida law. It is axiomatic that where a general provision of a statute conflicts with a more specific provision in the statute, the specific provision governs the general one. See, e.g., Mendenhall v. State, 48 So. 3d 740, 748 (Fla. 2010) (concluding that a specific sentencing statute prevailed over the more general one); Psychiatric Institute of Delray, Inc. v. Keel, 717 So. 2d 1042, 1043 (Fla. 4th DCA 1998) (concluding that specific provision of statute governed over general provision in same statute); Gallagher v. Smith, 517 So. 2d 744, 746 (Fla. 4th DCA 1987) (general venue statute governed by specific venue statute). By giving effect to the general provision prohibiting metal roofs rather than the provision allowing metal roofs under the conditions set forth in Article VI, section 70-187(2) of the Code, the circuit court violated clearly established law of statutory construction and failed to give effect to the plain language of the Code. Therefore, the Order should be quashed. 27 This is particularly true where, as here, the circuit court (and the BOA before it) interpreted Article VI, section 70-187 of the Code to permit the Town to require the homeowner to permit the Town's engineer to inspect the premises and to agree or disagree with the engineer's certification provided by the homeowner. This interpretation imposes an additional condition on the metal -roof exception that was not provided by the Code itself. Thus, this interpretation of the Code violates the long-standing principal that in interpreting a statute, a court is not permitted to add words that were not put there by the legislative body. Agee v. Brown, 73 So. 3d 882, 885 (Fla. 4th DCA 2011) ("It is a well-established tenet of statutory construction that courts are not at liberty to add words to the statute that were not placed there by the Legislature.") (quoting Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 512 (Fla. 2008) (citation and internal quotation marks omitted) (other citations omitted)); see also Boulis v. Blackburn, 16 So. 3d 186, 189 (Fla. 4th DCA 2009) (rejecting an appellant's interpretation of a statute because that interpretation "adds an exclusion to this statute that the statute does not provide."). Indeed, the plain language of the Code does not grant the Town the right to verify the certification of a licensed engineer submitted by the homeowner who wishes to re -roof his residence with a metal roof because the existing structure will not support a tile one. Given that this is a design element of the Code that also implicates the structural integrity of the building, it is only reasonable for the Town 9:i to accept the engineer's certification provided by the homeowner — that is unless the Town will accept liability or otherwise insure the property in the event the Town's engineer requires a concrete the roof that later fails and thereby injures someone or otherwise damages the homeowner's property.6 By interpreting the Code to authorize the Town's engineer to inspect the property so as to agree or disagree with the provided certification as a condition of allowing a homeowner to re -roof its residence in metal rather than concrete tile under the exception, the circuit court added a condition to the Code that was not put there by the Town itself. Had the Town wanted to impose such a pre -condition to approval of a metal roof in the face of an engineer's certification, it could certainly have done so — as it has subsequently done with the Metal -Roof Amendment. (A16; A17.) But, because the Town did not include such a requirement in the Code, the circuit court was not at liberty to create one out of whole cloth. Such a result violated clearly established Florida law. See Agee, 73 So. 3d at 885; Boulis, 16 So. 3d at 189. This case is directly analogous to Woodley v. Dep't of Health and Rehab. Servs., Dist. 3, Lake County AFDC, 505 So. 2d 676 (Fla. 1 st DCA 1987), which was cited by this Court in Las Olas Tower Co., 742 So. 2d at 312. In Woodley, 6 Indeed, there is some doubt that a homeowner would be able to obtain property insurance to insure the home in the event the homeowner installs a concrete tile roof despite the certification by a licensed, professional engineer that the existing roof framing will not support a concrete tile roof. 29 Ms. Woodley appealed from a final order of the Office of Public Assistance Hearings, Department of Health and Rehabilitative Services (the "Department"), which upheld the denial of her application for Aid to Families with Dependent Children ("AFDC") benefits. Id. at 677. The First District Court of Appeal reversed. Id. After Woodley applied for AFDC benefits, she participated in an initial interview with a Department representative. Id. During that interview, the representative asked Woodley to provide verification, by a certain date, that she had applied for workers' compensation benefits. Id. at 677. Woodley repeatedly requested this verification from her employer, but her employer did not respond. Id. The day after Woodley's production deadline expired, the Department issued a Notice of Abandonment, which gave Woodley an additional fifteen days to provide the requested information. Id. at 677. On that same date, Woodley advised the Department's representative that she had been unable to obtain the necessary verification from her employer. Id. The representative advised her to try again. Id. Woodley diligently reported back to the representative on various dates advising the Department that she was still trying to get verification. Id. The Department's representative advised her to request an extension of time if she could not obtain the verification by the latest deadline. Id. When Woodley did not 30 provide the requested information or request an extension by that deadline, the Department denied her application for AFDC benefits. Id. at 677. Consequently, Woodley requested an administrative hearing. Id. At the hearing, Woodley contended that the Department's representative should have — and in fact was required to — submit a policy -exception request seeking an extension of the Department's time standard for acting on AFDC applications. Id. The hearing officer rejected Woodley's contention and concluded that the Department properly denied the application because a workers' compensation verification was necessary under the Florida Administrative Code and because Woodley failed to request an extension of time. Id. at 677-78. Indeed, the Department's representative and her supervisor had testified that a policy exception is only submitted if the applicant first requests an extension of time. Id. at 678. On appeal, the First District noted that an agency's interpretation of its own rule is generally entitled to great weight, but that deference to the agency's interpretation is not required where the agency's construction clearly contradicts the unambiguous language of the rule. Id. at 678 (citing Kearse v. Dep't of Health and Rehab. Servs., 474 So. 2d 819 (Fla. 1st DCA 1985)). In that case, the construction is clearly erroneous and cannot stand. Id. 31 After a review of the plain language of the rule, the court concluded that the rule unequivocally required the Department to request a policy exception under the circumstances presented by Woodley's case. Id. Therefore, the court concluded that the Department's interpretation of the rule — that a policy exception need only be requested after an applicant requests an extension of time — did not comport with the plain language of the rule. Id. Rather, the plain language of the rule simply did not require Woodley to request an extension before the Department was obligated to seek a policy exception on her behalf. As a result, the court reversed the denial of AFDC benefits and remanded for further proceedings. Id. Under the reasoning set forth in Woodley, this Court should conclude that the Town's interpretation of the Code as adopted by the circuit court does not comport with the plain language of Article VI, section 70-187(2). Under the plain language of Article VI, section 70-187(2), once the homeowner establishes that he or she is re -roofing the building and produces an engineer's certification that the roof framing will not support cement tile, the Town is required to advise the homeowner as to the type of metal roof that will be allowed as is appropriate in that neighborhood. (A7.) Indeed, no other suitable and light roofing material is allowed under the Code. (A7; A8.) Clearly, a homeowner is entitled to a roof of some kind that will not negatively impact the structural integrity of the building. Consequently, Commissioner Devitt's claim that Article VI, section 70-187(2) was 32 intended to apply only to homes with pre-existing shingle or shake roofs is of no consequence. The exception expressly, by its plain language, applies to any home that is being re -roofed and that is certified by a professional engineer to be incapable of supporting a concrete tile roof. Therefore, just as Woodley was not required to request an extension before the Department was obligated to request a policy exception, the Town was not authorized to condition exception under Article VI, section 70-187(2) upon the Town's engineer's agreement with Lunn's certification or the agreement of a third engineer selected by Lunn and the Town's engineer. Rather, once O'Hare established that he was re -roofing his residence and produced Lunn's certification as required by Article VI, section 70-187(2) of the Code, the Town was required to permit O'Hare to install a metal roof suitable to the home and neighborhood. (A7.) Consequently, just as in Woodley, because the Town imposed a condition not required by the plain language of the Code, this Court should quash the Order under review. 33 CONCLUSION Because the Order violates several clearly established principals of Florida law and results in a miscarriage of justice in that O'Hare may be required to install a roof on his property that the existing roof framing cannot support, the Order should be quashed and the case remanded with instructions for the circuit court to quash the BOA'S decision affirming Administrator Thrasher's denial of O'Hare's Revision Request and to require the Town to advise O'Hare as to the type of metal roof that would be appropriate for the building and the neighborhood. JOHN E. CARTER TRACY S. CARLIN Florida Bar No. 460036 Florida Bar No. 797390 CARTER LAW FIRM, LLC TYLER K. PITCHFORD 102 NE 2"d Street, Suite 179 Florida Bar No. 54679 Boca Raton, Florida 33432 BRANNOCK & HUMPHRIES Tel: (561) 368-9900 100 South Ashley Drive, Suite 1130 Fax: (561) 368-8499 Tampa, Florida 33602 Tel: (813) 223-4300 LOUIS L. ROEDER, III Fax: (813) 262-0604 Florida Bar No. 0004316 7414 Sparkling Lake Road Orlando, Florida 32819 Attorneys for Petitioner Tel: (407) 352-4194 Fax: (407) 352-8565 34 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by email to John C. Randolph (Jrandoli)haiones foster.com) and Stephanie Eassa Rapp (srapp a ionesfoster.com) Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 33402- 3475 on this 2� day of April 2013. T CY S. CARLIN Florida Bar No. 797390 CERTIFICATE OF FONT COMPLIANCE I certify that the size and style of type used in this petition is 14 -point Times New Roman, in compliance with Fla. R. App. 9.100(1). TRACY S. CARLIN Florida Bar No. 797390 35 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CHRISTOPHER F. O'HARE, Petitioner, VS. TOWN OF GULF STREAM, Respondent. Case No.: 4D13-621 L.T. No.: 2012 -CA -01107 ON APPEAL FROM THE CIRCUIT COURT OF FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA PETITIONER'S AMENDED APPENDIX JOHN E. CARTER Florida Bar No. 460036 CARTER LAW FIRM, LLC 102 NE 2"d Street, Suite 179 Boca Raton, Florida 33432 Tel: (561) 368-9900 Fax: (561) 368-8499 LOUIS L. ROEDER, III Florida Bar No. 0004316 7414 Sparkling Lake Road Orlando, Florida 32819 Tel: (407) 352-4194 Fax: (407) 352-8565 TRACY S. CARLIN Florida Bar No. 797390 TYLER K. PITCHFORD Florida Bar No. 54679 BRANNOCK & HUMP14RIES 100 South Ashley Drive, Suite 1130 Tampa, Florida 33602 Tel: (813) 223-4300 Fax: (813) 262-0604 Attorneys for Petitioner PETITIONER'S AMENDED APPENDIX TAB DOCUMENT DATE 1. Roof/Re-Roof Permit Application 8/29/2011 2. Minutes of the Regular Meeting and Public Hearing Held 4/13/2012 by Town Commission of the Town of Gulf Stream 3. Minutes of the Regular Meeting and Public Hearing held 5/11/2012 by Town Commission of the Town of Gulf Stream 4. City of Delray Beach Revision Request 11/15/2011 5. Letter from Terrance Lunn to Christopher O'Hare 12/14/2011 6. Letter from William Thrasher to Roeder 3/6/2012 7. Gulf Stream Code Article VI., Sections 70-186 & 70-187 8. Gulf Stream Code Article V, Section 70-99 9. Letter from Rita Taylor to Christopher O'Hare 5/30/2012 10. Amended Petition for Writ of Certiorari 6/18/2012 11. Response to Amended Petition for Certiorari 10/8/2012 12. Opinion 1/28/2012 13. Transcript of Board of Adjustment Meeting 4/13/2012 14. Response to Mr. Thrasher's Required Variance 4/13/2012 15. Transcript of Board of Adjustment Meeting 5/11/2012 16. Ordinance No. 12/4 as Executed by the Town 7/13/2012 Commission of the Town of Gulf Stream 17. Proposed Ordinance No. 12/4 2 CERTIFICATE OF SERVICE I HE, CERTIFY that a true and correct copy of the foregoing has been sent by email to John C. Randolph (jrandolphQrjonesfoster.com) and Stephanie Eassa Rapp (srapp@ionesfoster.com) Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 33402- 3475 on this di day of April 2013. JOHN E. CARTER TRACY S. CARLIN Florida Bar No. 460036 iohn@carterlawfirm.us CARTER LAW FIRM, LLC 102 NE 2nd Street, Suite 179 Boca Raton, Florida 33432 Tel: (561) 368-9900 Fax: (561) 368-8499 LOUIS L. ROEDER, III Florida Bar No. 0004316 lou@louroeder.com 7414 Sparkling Lake Road Orlando, Florida 32819 Tel: (407) 3524194 Fax: (407) 352-8565 Florida Bar No. 797390 tcarlin a.bhappeals.com TYLER K. PITCHFORD Florida Bar No. 54679 tpitchford@,bhappeals.com BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida 33602 Tel: (813) 223-4300 Fax: (813) 262-0604 Secondary Email: eservice(cbbhappeal s.com Attorneys for Petitioner Tab 1 CITY DF DELRAY REACH Fgp &OOF / RE -ROOF PERMIT APPL AUG 2 9 2011 TOWI\' OF (�tiLF' STP..c.AA-A .,W 1"Avenue Delray Beach FL 33444 ApFrOVI ��Oftq Permit �I,j Tilllt (561) 243.7200 Fax: (561) 243.7221 Town of Gulf Stream, FL I.�.u�s Date rj Website: mvdelravbeach.com FOR UFFICE USE'ONLY: PROPERTY CONTROL #: - 7 : L - t -2-U iib � BLDG PERMIT -,: PLEASE PRINT JOB SITE ADDRESS dye PROPERTY OWNER NAME HOME PHONE ( I PROPL•RTY ON-NER ADDRESS ROOF CO\?'R (COMPANY) NAME ROOF CON—FR ADDRESS 13s0 \L r, -'.Na ttLtd.f)b CITY Bus .PHONE iti£i } FA_K &1 .-,3U " I UQAb E-MAIL. ROOF PERMIT J -ir/( x.71 `r PERMIT FEE NOTE: PERMIT EXPIRES IFWORKIS NOT STARTED WITHIN 180 -DAYS OR IFACTIVITY LAPSES FOR 180 DAYS. PLANS MUST BE WC ON THE JOB SITE FOR ALL INSPECTIONS. FINAL INSPECTION IS REQUIRED ON ALL PERMITS. PROJECT COST (Labor and plateriaq S c4lsw-6__. a "--TT \ REhIOVEEKIST[N''G.IREPLICE RIRFVCUNITS �"""Anne: NEN' CONSTRUCTION RECOVER OVER EXISTI. C _ J� (Engineer's Letter Required) (Meeh. Permit. Required) C7reekoae V SINGLE-FANIILY+ _MULTI-FANIR.V _COMMERCIAL *Nc31TIGATIONREOUIRFA�IFNTS IFFSSINGLIt FAMILY: L YEAR BUILT (check one): IVJ BEFORE DLkRCH 2002 (Go To,#2) 2. HOUSE VALUE, S. "7 �'��.�� MUSTPR0N7DE: (IF $300,000, OR MORE, NOTINCL ING LAND VALUE•, 00 TO 43) 3. SUBNHTRE-ROOFINGNUTIGXrION TYPEIC OLOR OF ROOF.MATERIAL M-MOVE13 NOTE: FOLLON` NIANUF'ACTURER'S G ROOF TYPE(CIRCLE): T FLAT AFTER BLARCiI 2002 HOME INSURANCE SUhIhIARY SHEET OR COPY OF MOST RE CEQT TAX BILL OR PROPERTY APPRAISER OFFICE WEBPAOE MRiGAPPLICATION �it -- N f� a F MATERIAL INSTALLED hn 5('-tziUL.- rnR crrrurt. 1�craLtAf ON r PRd UCTAPPROVAL NUMBER: _�_r�,fae.I l C.e�u /l—Dq/L/.e)i /jY7 l if v vv) WORKERS CONII SST""ATE:OF r%%fllk n 1 R.'IY OF . r �uLY 1 he g g s ent was acknowledged before me this ✓`D day of 2 0t_ by L f L Public OR Rvsd. 3 ) PLAN CHECK FEE: _ MCR s. ............................... 4.PPRO\_ALS: PLAN: h� DATE: P S Z. DATE: "�) 1 �4 Nq NOTE: PERMIT EXPIRES IFWORKIS NOT STARTED WITHIN 180 -DAYS OR IFACTIVITY LAPSES FOR 180 DAYS. PLANS MUST BE WC ON THE JOB SITE FOR ALL INSPECTIONS. FINAL INSPECTION IS REQUIRED ON ALL PERMITS. PROJECT COST (Labor and plateriaq S c4lsw-6__. a "--TT \ REhIOVEEKIST[N''G.IREPLICE RIRFVCUNITS �"""Anne: NEN' CONSTRUCTION RECOVER OVER EXISTI. C _ J� (Engineer's Letter Required) (Meeh. Permit. Required) C7reekoae V SINGLE-FANIILY+ _MULTI-FANIR.V _COMMERCIAL *Nc31TIGATIONREOUIRFA�IFNTS IFFSSINGLIt FAMILY: L YEAR BUILT (check one): IVJ BEFORE DLkRCH 2002 (Go To,#2) 2. HOUSE VALUE, S. "7 �'��.�� MUSTPR0N7DE: (IF $300,000, OR MORE, NOTINCL ING LAND VALUE•, 00 TO 43) 3. SUBNHTRE-ROOFINGNUTIGXrION TYPEIC OLOR OF ROOF.MATERIAL M-MOVE13 NOTE: FOLLON` NIANUF'ACTURER'S G ROOF TYPE(CIRCLE): T FLAT AFTER BLARCiI 2002 HOME INSURANCE SUhIhIARY SHEET OR COPY OF MOST RE CEQT TAX BILL OR PROPERTY APPRAISER OFFICE WEBPAOE MRiGAPPLICATION �it -- N f� a F MATERIAL INSTALLED hn 5('-tziUL.- rnR crrrurt. 1�craLtAf ON r PRd UCTAPPROVAL NUMBER: _�_r�,fae.I l C.e�u /l—Dq/L/.e)i /jY7 l if v vv) WORKERS CONII SST""ATE:OF r%%fllk n 1 R.'IY OF . r �uLY 1 he g g s ent was acknowledged before me this ✓`D day of 2 0t_ by L f L Public OR Rvsd. 3 ) Tab 2 551-737-0188 Line 1 08:41:41 a.m. 05-08-2012 1116 MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, APRIL 13, 2012 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order. Mayor Koch called the meeting to order at 9:00 A.M. II. Pledge of Allegiance. The Pledge of Allegiance was led by Mayor Koch. nililh. oll Call. Present and William F Participating Joan K. 0. Muriel J. Fred B. Di W. Garret' lso Present and William H Participating Rita L. Ti 4u Joh� Lou Joe P J. Commiss the Min the Cer discuss Koc111II11'�IID''"'711I��lfl Mayor hwiel I III�IIII Vice -Mayor III .11 issioner .ng u n . Colil ssioner .sher To yyn,a er ��IIII 1I11I��IIII (I( ���IIIII PTownoli c hief Town Attorney Rep. O'Hare rjoDe�I n Agent for GSGC IIIII��I�IIIII�1I11I1IiAg Concerned w/Sp nce IIIIIIIII' Property 0 N.Ocean Re: Spence Property Banyan Re: Spence Property 0 Banyan Re: Spence Property 1450 Polo Re: Spence Property ,,O'''ch 16, 2012 cta$bn Meeting of March 16, 2012 ce-Mayor Orthwein seconded to approve of March 16, 2012 and the Minutes of ing of March 16, 2012. There was no V. Additions, withdrawals, deferrals, arrangement of agenda items. There were no changes. VI. Announcements. A. Regular Meetings and Public Hearings 1. May 11, 2012 @ 9 A.M. 2. June 15, 2012 @ 9 A.M. 3. July 13, 2012 @ 9 A.M. 4. August 10, 2012 @ 9 A.M. 5. September 14, 2012 @ 9 A.M. There were no conflicts in the meeting schedule. B. Mayor's Proclamation -National Missing Children's Day 561-737-0188 Line 08;21:25a.m. 05-08-2012 2116 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 2 Clerk Taylor announced that the Mayor proclaims May25, 2012 as National Missing Children's Day. She said the Mayor has already signed the Proclamation. VII. PUBLIC HEARING of BOARD OF ADJUSTMENT Clerk Taylor administered the Oath to Lou Roeder, Esq., representing Christopher O'Hare of 2520 Avenue Au Soleil, and she asked for declarations of ex -parte communication. There was no ex -parte communication concerning this matter. A. Appeal Final Action of Planning & Administrator 1. An application submitted by CH"If I111topher O'Hare, owner of property located at 2520 Avi II'�fAu Soleil, legally described at Lot 36 Place44� Sb�h1111 Subdivision Gulf ' ��1 ' Stream, Florida, for thll IfII111 ! 11 1 a. Appeal .o£ Administr�- a Cilia 1 to deny the t. installation of °110�al roof untilisuch time as a variance to permixa uch material li 9�ibeen applied for and approved for te�Il�dwell'' at th�I' cation stated herein. ���lp11 i'll�' �II� 4Ifip� Lou Roeder, Esq., stated tha�ll�I a represe tls'I!.^hristopher 0 are in his appeal of the administratively,#°l�j'� on mad�1i1 ' Town Manager William Thrasher who determined that I111gaif gpceI wous e required in this matter. Mr. Roeder provided they Boa IP Adj� �tj ent with an appeal package, he stated h is ii{�II eceip1'' Mr. �� i>rasher's Report uillll'u Ii). hill supporting his arg ii�i iui� �1i a varlllncg IIIII a�Ced Clerk Taylor to distribute his re§iii3hse tIIIMr. Thrsitle � s re61, t. Mr. Roeder said Mr. T'# she Jbg oted tion 66-1, Definitions, which defines a v I cas �I�IIIII"Vari i e shall mean a deviation from nl�i I II II1611 i��. yI I IIII the distr ill ugment111�1T thi)I$I'I1I 11P 1Ir -" He said he agrees with thee` inition11111 t he��aid he��bes not believe the request for a metal roo '1ui' eviates f thel(�`"��jj',,equirements of the chapter. Mr. Roeder said, in h-II'I�� eport Mr i�11 rasH'I ' ``I noted Section 70-99(3) Roof design, slope and ma�11i'a19' to '�d inl) iticle V of the Manual. To clarify, Mr. Roeder note 11 hat Art�lliile V is Town -wide Standards and Article VI is District Standar��II meani fit is very specific to each district. He said there is a p11H1}}'; iI in Section 70-99(3) which states, "Metal roofs (except unpairi�i,I�o,per when used as a decorative accent or on minor accessory strut I� es are prohibited. Further, he said Mr. Thrasher then quotes from District Standards, Section 70-187(2) Roofs, Prohibited. Metal roofs*, with a footnote which reads, "Certain metal roofs determined by the Town to be appropriate to the structure and to the neighborhood may be approved only in instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof." To clarify, Mr. Roeder said Section 70-187(2) basically states two conditions for his client and one condition for the Town. For his client, the conditions are that there must be a re -roofing situation and that there must be an engineer's certification. For the Town, the condition is that they must inform the client as to what metal roofs are then appropriate to the 561-737-0188 Unei 08:22:26 a.m. 05-08-2012 3/16 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 3 structure and the neighborhood. Mr. Roeder stated that he asked the Town to provide that information on November 15, 2012 and he said the Town responded by saying that metal roofs are prohibited, period. He said a sample of the roof they are proposing is included in the package he provided to the Commission, which is by Englert, and he said it is one of the highest gauge and quality of metal roofs on the market. Mr. Roeder went back to Part I of his response, some disparity and confusion because Article V and Article VI states "metal roofs under certlh he called Marty Minor of Urban Design KildaI asked him if a variance would be required ��,,I(plc partook in this Section, and he said Mr.,l'Ijd ; would be their out to the prohibition ,,p !a' meta saying that there is states "no metal roofs" Or conditions." He said udios and specifically t up a metal roof if they response was, "No, it Mr. Roeder referred to Part II of 17-'IlsI1U'response, silt"I g that Mr. Thrasher quoted Section 70-4(c)(4) How to J, 11 manual, wh states: "Prohibited items are design element'§����jhat d ���ot mai ii�l,�'''dn the desired character or quality of the zoning di�tllac �t'hin whicH��y�;hey are r! , n I I1 I 111 {y�lil� located and are not permitte'! I�!1inlder cur I) )Iodes or reg ��Tations." Mr. Roeder emphasized "and." He';� hn��I�IIMIr. Thrall I! r states that there are no metal roofs on any single fam1il IlRii(e in G)1 1i. I Stream because they do not maintain the desired chara� r>iI lit any zoning district. Mr. Roeder said he ca m located is a'!!1j�y fic .. ding in the Code !III! ! I n the ode"Illi r 111 hrasher's opinion. He because he said it��til�ll �,1 p I I�lit I u �lhi said it may not hill cessa �!ito a .1j�,� hi 1 ;pause the Section does say that not only e'it r'iYe to aintain the desired character and quality of the zoninl1l1lIi,�,'st�but said it also must be prohibited by the Code 17 11 NRoed �I,I� ill's alflll'l ear reading of Section 70-187(2) that meta �j� odfsl all d wi h 7i he,I��Code and, therefore, they are Ill ii. I'. II it 11 I31 1'll1) I not a pr"t1�1 rtion ,IInth ore, "T I'1 -Section does not apply. He said even thouthere areil� mea, roofs on single family homes, there are metal roofsl���on several ltiII',' fly residential condominium buildings, such as Polo's�eIIdge andi%1' two�.'ory condominiums located at 4400 and 4440 N. Ocean Bµ;ll. l�I�lill; Mr. Roeder noted ei�ionl 'u-4, How to use this manual, saying that the manual states, and III� ed "(Gulf Stream Bermuda and Mediterranean Revival] styles are nt��lit mandatory but are indicative of the predominant styles within the community." He said he believes it is important that these styles which are talked about in the Manual are not mandatory, but basically a guide. Further, he said in 70-187(2) it states, "a metal roof determined by the town to be appropriate to the structure and the neighborhood." Mr. Roeder said he spoke with Town Staff to say that his client wanted a metal roof and asked what type of metal roof would be appropriate and he was told metal roofs are not allowed. Mr. Roeder said that a style map and pictures are included in his response showing various styles and forbidden roof types, such as shingle, shake and flat. He noted that in Place Au Soleil, where his client lives, 70% of the lots are labeled by Town Code as "other/various styles" as are a majority of the homes in Gulf Stream. 581-737-0188 Line 1 08:23:29a.m. 05-08-2012 4/16 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 4 Mr. Roeder pointed out that in his report Mr. Thrasher stated, "even though the footnote could provide for a metal roof, a variance would be required as it is still listed as prohibited." Mr. Roeder repeated that in his conversation with Mr. Minor, when asked if a variance would be required if they wanted to partake in this provision, Mr. Minor said, "No." Mr. Roeder added that Mr. Minor works for the firm that put the Town's Manual together. He said Mr. Thrasher took the position that 70- 99(3), since it was in the general section applying to the entire Town, is more restrictive, and it seemed to overrid (l ;he District -wide Standards in 70-187(2). Mr. Roeder said tha ( enever there is a conflict you look somewhere in the ordina ??x�'11 or a conflict resolution. He said he found that conflict resolutio,lIis�ri �Ik icle VI which states, "where the provisions of this Article nlictilkJ�h those of Article V, the provisions of this Article shall ; � wail." iN�i•,bRoeder said the Code is clear and he said where there i�'conflict bet���l n Section 70-99(3) Ji, m u and there is a conflict between Se IIpn 70-187(2), 5��lon 70-187(2) will prevail. He said he believes a'I'�j ianc s not 'Th'uired, he has shown overwhelming evidence aind he rest i' t request�allllthat the Board •� t i ( IP'T of Adjustment overrule Mr. T�'�!a her's a rative deci�s3on and lii i n. ,i in approve his client's requestlit�,ii���l(�„metal r��f. Mr. Randolph asked Mr. Roeder the Code that says w e ther Article will preva I�I{���(��IilliRo Standards, Sectioilll�!-18'1 where the provision 1% th��jl. provisions of this AI'! �, cle,,�ph him to the provision in t tRU!111�rovisions of this Dl�u„ •at Article VI, District art sjtence However, l. flict with Article V, the Mr. Thras '��1 '"a'hkQ��l Rd' 113 ' staT-191,(��� ha�jb there are metal roofs on multi- families�l (Gulf Slam. i,(t' said t119��"le are properties that were recently I1rit exed into(i�I1 a T1',1' and the Code would not speak to the Ip n . issue. Wit�Ffll� egard to g d1 rential between predominant styles, other/variou�IilI��ly1 s andIls ake;' hingle and other roof material, Mr. Thrasher said glrent Co alwas adopted after the construction of these homes and we assn�'' Code i met when they were built. He said when applications forIIJ��';,jj ro 1i are submitted for these structures current Code will be thedet!n(lt Lig factor. With regard to the differential between area -wide stait ri�ids and predominant styles, Mr. Thrasher said as style is determined it as been our practice that the homes and the work must align with both the predominant style section of the Code and with area -wide. He said Staff believes both area -wide and predominant styles are applicable in the appropriate instances, which is how they have always administered the Code. With regard to whether or not the exclusion of the asterisk provides Mr. Roeder's client the immediate option to apply for a permit, Mr. Thrasher said he believes prohibited items require a variance and metal roofs is listed under the prohibited section of the Code. He said Town -wide where the Code prevails, excluding the annexed area, there are no single family homes in Place Au Soleil, the Core area or any other district in 581-737-0188 Une1 08:24:28 a.m. 05-08-2012 5/15 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 5 Gulf Stream with a metal roof, which indicates it is prohibited. Based on his interpretation of the Code, Mr. Thrasher said it is inappropriate to have the ability to immediately apply for a metal roof because of the asterisk. He said he believes there is a definite conflict in the Code between Section 70-99 and Section 70-187. Mayor Koch asked Mr. Randolph if there is a conflict in the Code. Mr. Randolph said that Article V is the section Mr. Thrasher talks about that creates the prohibition. He said the provisions set forth in Section 70-186 say "however, where the '�10ivisions of this Article conflict with those in Article V. the provi i'i�i of this Article shall prevail, and he asked Mr. Thrasher how th � is in with his comment that there is a conflict in the Code.n!ill''her said he did not say he disagrees with Mr. Roeder's inter p +t ion d'1l11,6'he Code, but he said it appears to him that metal roofs a�•��t desir ,�I n single family homes. d�ll'illlll '��Illlli. Mr. Thrasher said that a single affic applicant is inappropriate. He said in that concern and he beli '1I'' the 4 opportunity to test the engi. �O�'jIl re was built in 1972 with a conch tid'��c similar concrete material and �I,ha's'IIll roof to date. He spg a appl>! •1' nt' permit application i '1�1°l•`1 creteloc applicant, his con�}�;I��r��ctori��f ormed wants a concrete r-'' and a fers a�- indication of an eno'iltileer'sl emort A t or gineeri1'18l,ireport from the IfIIII��should al�,o�l� ave a voice ngineer shoulg*have an t,!' r. r. Thrasher said the home it re -roofed in 1999 with n abl°III support a concrete %;A' t•°' ubmitted a re -roof �� � wikdrawn by the own the applicant no longer 1 roof and there was no at time. Mr. Rando 111119 R' ll 111 secj""I ps f�lll�ol€��� Ms{la'II Thrasher's answer relates to whether �I1Town ma acce• the a°'gii�';eer's certification or be allowed p'„ p u• to have t�{a �r engine4>.1111provil I an inspection and report, but he said this is an�� ue to be 1scuse' separately. He said the question before the Bo rd of Adju� mentll'whether or not there is a conflict in the Code whicti�l' uires t1 applicant to apply for a variance, and he said Section 70��point lout by Mr. Roeder is very important where it says 1111.1 14 lsions of this Article conflict with those in Article V, the prov114al 11 this Article shall prevail." Mr. Randolph said Mr. Thrasher is �•• 7_ng at Section 70-99 which prohibits metal roofs and Mr. Roeder is looking at Section 70-187(2) which also prohibits metal roofs, but provides an exception in the event they are able to obtain an engineer's certification that the structure does not support a tile roof. Mr. Randolph said the Town requested information from the applicant which he believes should be addressed as testimony. Mr. Randolph administered the Oath to Town Clerk Rita Taylor, and he said there are two points to be addressed separately. He said the first point is whether or not there is a conflict in the Code requiring a variance, and he noted that an argument has been made that: The section the applicant is applying under is not in conflict because it specifically states that 561-737-0188 Line 1 08:25:26 a.m. 05-08-2012 6116 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 6 it shall prevail in the event of a conflict; and, they are arguing that this section is an exception to the Code because the section they are applying under has a prohibition that says there is an exception to the prohibition in the event they can show that the structure will not support a tile roof. The second point relates to the engineer's certification and whether the Town is required to accept that certification on its face or whether the Town can test the engineer's certification by hiring their own engineer. Mr. Randolph asked Clerk Taylor to testify as to what she requested from the applicant with regard to the Town being able to test the en '�prls certification. Clerk Taylor said, through the applicant's Iplsney, she provided three dates and times that an engineer would be apajlu°lable and she said she asked for his client's approval to have ,Ill�lleiill'neer enter the premises. She said she was told that, in the pa G., a a icant had been unwilling to allow anyone to enter..lillllll�lli Mr. Roeder said Clerk Taylor did caNll him to ask forlil1'ata or backup information justifying the engineer' 1111�prtifi• tion a4,�11�"lPpr to ask for 11 permission to have the Town's engineerl� om �lll' He sa81!IlIheir position no 4 II M dl 0I' I II is that they are appealing bI{variance %I ��rement and h�'said Clerk Taylor called after they file,libli Ilir appea,II Mr. Roeder agreed that there are two separate points;��IIIPn ling wh r or not a variance is Ip, u m n required, and he said he does n��t thr)�1111111 t rzd he said the second being whether the Co. s� s you�o' n pr' a Nd which then tg vu r.mythe Town can quest'IiillVlih� Roede{ sa' e talking about the ' I li 'I I I• I 41 i variance issue ri'A�� now, I he s�•Id11111h f we"'' 'htalking about the IIS I 1116 'I t: I certification issu )6>sition tat the Code is ver clear and they have done what 1. ColII equires;lwhich is to providean engineer's I IBIII{ II'i ' I g certif1cat i I 1111111fIi'lllll I iql II�I�I h�1 illiill .. IhI ��l '.1I111I,, I t',. SII Mr. Roedl'�� aid Mr:. {•ras e��lll�state II at the Town does not have a position this bu lI�'e sa they do under 70-167(2) which has two p �II''I11 ' Iifut, I� conditions 16hat fall up thell,lpplicant. He said one is to show that amml� u r they are re -roofing, whN; theyfll,atre, and the other is to provide an engineer's cert ication;l hick they have. Mr. Roeder said his client asked him to sail, at he snot stuck on a metal roof, but rather wants what is best for i -ii,' ho IV III He said metal is the lightest material they can use, shingle anc7�I�lsl;' are absolutely prohibited and he said, based on the square footage,. the home, concrete is too heavy. Mr. Randolph said it is his understanding is that what Mr. Roeder is saying is his client's position is that the engineer's certification must be taken on its face because of the way the ordinance is written and that the Town must accept the engineer's certification. Mr. Roeder said that is so, unless you can show cause why the Town would not have to accept the certification, and he said if that is the case the Code should say engineer's certification to be verified by the Town, or engineer's certification with backup. Mr. Randolph said their engineer's certification says "to the best of my knowledge and belief and based on my professional opinion." bbl -W -UM Line? UU:2b:24a.m. us -UH -2U72 //7b Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 7 Vice -Mayor said she believes the Town can question the certification because there has been a concrete roof on the home for 40 years and the engineer now feels that the home can no longer support concrete. Mayor Koch asked Mr. Roeder if his client will object to the Town's engineer coming in. Mr. Roeder said he has so far, and he said right now we are addressing whether or not a variance is required and he does not think it is. Vice -Mayor Orthwein said that under the circumstances she believes a variance is required because there is question with the engineer's report. Mr. Roeder asked Mr. Randolph if the Town can create a variance requirement because they question""""''''I���'� Ha engineer's report. Mr. Randolph said the Town can ask for a varian•{f it is not proven that the engineer's certification is correct b all e if you do not meet that standard set forth in the exception you, F�' �,�'eed a variance from the prohibition. He said to Mr. Roeder tha�''"Ke b7t'len is on you to show you meet the exception, and he saidf�Ilil�ls reasonje under the circumstances for the Town to testi) r11 engineer's"ia�,'tification in order to verify and it is not a reasonab�1nterpretation'' the Code to mandate that the Town accept an engine� 's c tificati�� without having the opportunity to test it. j{�+iii�jib, ;j{���' NII��{lilt. Mr. Randolph said there are Mayor Orthwein is saying is the event the applicant has an argument that the a•,•• is allow the Town to Randolph said if i*611!est structure can hold1 IisItile r from the prohibitiorilJ{J�Ili;•He s before fina mina ll•. from the ani . . i i � `8R. Mei{ .. requiremFror a vs;• an variance I not requiI,'�] conditions 1�q' l the excelur create a valr' ce becau conditions of°I' except Orthwein said sAtl� oes n and she does not��ieve engineer's certific�l;���pn''' roof for 40 years. Sri(u� their due diligence if't e urate 'q lyes. He said what Vice - t i{�believI variance is necessary in no I et r xcep. and he said there is not"��11j 1" the � �rception if he will not :rify r,"• a rtification. Mr. I nd tti�r °ilial d L'nmination is that the fl i... Of the � •ficant will have to get a variance {i we ha•,a to resolve the second question �p�j.�,�, madll s to whether you need a variance oedjls'� df alis client has challenged the d if I"' f�{jTown 11 takes the position that a ,Nl lieves the applicant has not met the is one story. However, he said to u di !1111not think the applicant has met the seems to be adverse to the Code. Vice -Mayor elieve the applicant has met the conditions Board of Adjustment can accept the ce the structure has supported a concrete the Board of Adjustment would not be doing did not question it. Commissioner Devitt said he served with the group of citizens that drafted the design manual. He said Urban Design Kilday Studios did not write the design manual, it was a committee made up of a group of citizens from the community. Commissioner Devitt said one of the priorties on their list of items to be addressed was metal roofs. He said he is very familiar with this provision because, at the time, he owned a home in Gulf Stream with a cedar shake roof and he and a number of citizens in the same position were concerned that if they needed a re -roof their structure would not support a cement roof. Commissioner Devitt said photos and addresses of structures in Place Au Soleil and 561-737-0188 Line 1 08:27:24 a.m. 05-08-2012 8116 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 8 other areas of Gulf Stream that cannot support a cement roof have been provided today and he said that is why the exception is written in the design manual. He said he believes the Town should be allowed to question the sentence in the engineer's report stating that the structure cannot support a tile roof after it has held a concrete roof for 40 years. Mr. Randolph said this hearing relates to an applicant and the Board of Adjustment. He a to call for public comment, and Mr. Randolph time that the issue is not whether you likes whether or not our Code requires a varialnii� has the right to go beyond the engineer's architect with Sloan & Sloan in Delra I ach assigned values to the strength of w,J'�1III 0has factors being changed and the para��tl'lof sa can get a variety of interpretations1i'Ifrom en most paranoid of applying a higher sal y fa strength to the roof whereas in realtyllii III is strong enough. Mr. Roed �?ilinted ou{fil}�, applying safety factors, var', ti�� �jCs couldIt standards and new codes due tIiIII�� hurrio Commissioner Dering asked Mr. R�'ede 1�16i1his Town to have another neer to�j at fi I�I��ro his client will all �� I�'qgw. M �'III Roec�t date due to a num1i,�lof isles, adlIlllell��°aid l it now. IIIA, lllh l appeal between the ked Mayor Koch if he wanted 1�'- inded the public at this ej1lial roofs, but rather 1Id whether or not the Town kication. Dan Sloan, an .'41�" ted that over time the one''111.. �an because of safety et 1{1isuits. He said you ineerslll4 d those that are qr winuU ll I.,nl e a much lower ional anal sis the roof t besides pa99noia in o be a result of increased damage over the years. 12�Int refused to allow the f, if so, he asked if T hillhas not allowed it to ellllnrobably will not allow In closing, andoT'1: "1Y31111.; a a"" IIhhtwo alternatives: If the applicant 1 J �II�II n I ill�l l�nj I° g I[ 11 i6 • I) llow I e To"iP t It the engineer's report, the u l I 11 h II I r Board oflll( - hustmen I1�s ould 'l ,ake the ll ,pision today as to whether or not I i' III u q I. a varianc. 3��s require .,lllli r, Board of Adjustment can defer giving the applicant 1II�'fl� pportunirly.'Ito a1,1'•w the Town to obtain a report from I I �.1ll in e another engi � He ss ( if a Other engineer's report verifies the first engineerHil`Nreport tlipl a correct the decision will be easy when the Board of Adjusts ° is be fin session. Mr. Randolph said, based on what has been poi° 1h, ou:Il ith regard to the provision that says "in the event of a conflict1111. out 1i of Chapter 70 shall prevail, and you can show you have metillli'I,e requirements, he said his advice to the Board of Adjustment would be that there is no conflict and a variance is not required. He said, if you do not show that you have met the requirements that the roof cannot support a tile roof the direct prohibition applies and you would clearly need a variance. Mr. Randolph said he does not believe the Board of Adjustment is obligated to make that determination until the applicant is willing to allow the Town to test the engineer's report. Vice -Mayor Orthwein said she believes a variance is required right now under the current Code. Commissioner Devitt said if the applicant allows the Town to have an engineer test the engineer's report and he verifies that it is correct, it will be a done deal, however, he said if 561-737-0188 Line 1 08:28:22 a.m. 05-08-2012 9116 Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 9 the Town's engineer is in conflict with the engineer's report the applicant will have to accept that move on or come back to apply for a variance. Mr. Thrasher said he is concerned that we may not have resolution with two engineering reports and asked if there should be some thought to the two engineers agreeing to a third report. Attorney Randolph said if there is a conflict between the two reports, the two engineers can select another engineer for a third report. He said it can be handled administratively. Commissioner Daring moved and Vice -Chairman OrPlein seconded to defer action on this matter until the next Commis nljIII-Meeting scheduled for Friday, May 11, 2012, allowing time for tiff wn to hire an engineer to inspect the roof and, if the reports are, I', lict the two engineers will jointly provide a third engineer o Ireso� on. Further, in the event the applicant will not allow�Plbwn the rht of a second inspection, the Board of Adjustment�{ "Ill further c'it' der the matter when back in session on May 11, 20II 1, There was no 'iscussion. All voted AYE. Ilhl�ill,,. ui,. ill11iillh,. Mr. Roeder requested the 16, 2012. VIII. Reports. A. Town Manan li With regard to the il�l Brannon has confi Mr. Brannon also c tl�, to the project. Mr.''I complete a l��t' ll�lsurve all preseel,IIiI„Ili hl Jign EnviroDe;' i said £rii City of „Nay Beach llj a relations with De for assistan�U'I(�' Mayor B. ArcJi 11,ecturt availlal �U1'in writing 8yl"Monday, April undin4ll+ �r ojk j�t;'Ilil �,i Tki'2asher said Danny n�,��, .yn ti io �I a is i ull � ipt loll the Comcast estimate. d,iiiat FP& Dias still not assigned an engineer s I1 said t �Isouth end surveying is almost ii Ili a uil unithe north end. Mayor Koch asked gone Igu��I lli" •lt represent FP&L. Joe Pike of �lll�re nod bus for delays. He said that the a zte1.i�tionship with FP&L and since the Town has y Bell),,they may want to consider asking Delray Oh theed Mr. Pike for that suggestion. i1yiew & Planning Board 1. Me'¢�Iti•' ng Da11012 ss a. 'Ifb.lryi+l ��u12012 @ 8:30 A.M. C. Jun�eIl�.1192012@@8 d. July 26, 2012 @ 8:30 A.M. e., No August Meeting. f. September 27, 2012 at 8:30 A.M. C. Finance Director 1. Cash & Budget Report for March 2012 Mr. Thrasher requested that the Cash & Budget Report for March 2012 be approved as submitted. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the Cash & Budget Report for March 2012 as submitted. There was no discussion. All voted AYE. 2. Water Usage as of March 31, 2012 Tab 3 561-737-0188 Une 1 02:56:13 p.m. 07-02-2012 1/12 FAX Cover Sheet Attny. Roeder Phone: Fax Phone: 1-866-610-6090 (Date: 7-2-12 Number of pages including cover sheet- 12 Rita Taylor Town of Gulf Stream Phone: 561-276-5116 Fax Phone: 561-737-0188 REMARKS: ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP Please find enclosed a copy of the approved minutes of the meeting of the Town Commission held on Mav 11, 2012 as per your request. Originals to Follow by Mail: Yes CC: Fax Phone: IN 561-737-0188 Line 1 02:56:39 p.m. 07-02-2012 2/12 MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, MAY 11, 2012 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. Call to Order. Mayor Koch called the meeting to order at 9:00 A.M. Pledge of Allegiance. The Pledge of Allegiance was led by the Mayor. Roll Call. Present and William F. Koch Participating Joan K. Orthwein Muriel J. Anderson Fred B. Devitt, III W. Garrett Daring Also Present and William H. Thrasher Participating Rita L. Taylor Garrett J. Ward John Randolph Lou Roeder, Esq. Mark Marsh, Bridges Marsh & Assoc. Danny Brannon, Brannon & Gillespie Marty Minor, Urban Design Kilday Studios Mayor Vice -Mayor Commissioner Commissioner Commissioner Town Manager Town Clerk Police Chief Town Attorney Rep. O'Hare Agent / Davis Underground Consult. Town Consultant Tom Murphy, Esq. Rep. Concerned Residents of Hidden Harbour Estates Martin O'Boyle Hidden Harbour Est. Robert Ganger, Chairman ARPB Margo Stahl Gammon, Mbr. Gulf Stream Shores Condo Association Clerk Taylor asked to let the record show that William Thrasher, Town Manager, and John Randolph, Town Attorney, were present. IV. Minutes of the Regular Meeting of 4-13-12. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the Minutes of the April 13, 2012 Commission Meeting. There was no discussion. All voted AYE. V. Additions, withdrawals, deferrals, There were no changes. VI. Announcements. A. Regular Meetings and Public Hearings 1. June 8, 2012 @ 9 A.M. 2. July 13, 2012 @ 9 A.M. 3. August 10, 2012 @ 9 A.M. 4. September 14, 2012 @ 9 A.M. 5. October 12, 2012 @ 9 A.M. of acenda items. 561-737-0188 Une 1 02:57:14 p.m. 07-02-2012 3112 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 2 Clerk Taylor noted an error in the Meeting Schedule and said the correct date of the June Commission Meeting is Friday, June 8, 2012. There were no conflicts with the Meeting Schedule. VII. PUBLIC HEARING of BOARD OF ADJUSTMENT (Continued from 4-13-12) A. Appeal Final Action of Planning & Bldg. Administrator C1. An application submitted by Christopher O'Hare, owner of property located at 2520 Avenue Au Soleil, legally described at Lot 36,Place Au Soleil Subdivision, Gulf Stream, Florida, for the following: a. Appeal of Administrative Decision to deny the installation of a metal roof until such time as a variance to permit such material has been applied for and approved for the dwelling at the location stated herein. Clerk Taylor asked for declarations of ex -parte communication and there were none. Clerk Taylor administered the Oath to Lou Roeder, Esq., Mark Marsh, Danny Brannon, Marty Minor and Martin O'Boyle. Mr. Randolph summarized saying the Board of Adjustment considered an appeal of the Administrative Official's decision at the April 13, 2012 Meeting as to whether or not a variance is required to place a metal roof on a single family structure. They made a motion requesting that the applicant to advise the Town as to whether or not he would allow the Town to select an engineer to verify his engineer's report, and further, if the two engineers disagreed, they would jointly appoint a third engineer to determine whether or not the structure could support a tile roof. Mr. Randolph said since then he received a letter from Mr. Reoder, the applicant's attorney, advising that his client will not allow the Town's engineer to verify under the terms of the motion, and he said it would be appropriate to hear directly from the applicant's attorney with regard to his client's response to the Town's request. He said this is a quasi-judicial hearing and, therefore, the Minutes of the April 13, 2012 Meeting which were just approved should be incorporated into the record of this proceeding. The Minutes of the April 13, 2012 Commission Meeting will be made a part of the record and filed in the Official Records of the Town of Gulf Stream. Mr. Roeder said the Board of Adjustment made their motion before making C a decision on the variance appeal. He asked the following questions: (1) Who is responsible for the engineers' fees?; (2) When will the Town inform his client of the appropriate metal roof if the Town's engineer verifies and his client has satisfied the requirements of Code Section 70-187(2)?; (3) Who will accept liability if the Town's engineer and a third engineer disagree with the owner's engineer, the Town forces his client to install a tile roof and the roof fails?; and, (4) Is there any precedent that has been set where the Town can impose an extra condition beyond the requirements of the Code? Mr. Roeder summarized the chronology of events leading to this hearing, he said the goal post keeps shifting and he stated that his client does not want to allow the Town to have their engineer come in to verify his engineer's certification because he feels it is an unreasonable request. S61-737-0108 Line 1 02:58:00 p.m. 07-02-2012 4112 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 3 Mr. Randolph to Mr. Roeder: It is my understanding that your client, regardless of the answers to the questions you raised at the beginning, has made the determination that he will not allow the engineer's certification to be tested by the Town, and you have already advised us of that, is that correct? CMr. Roeder: That is correct, and it is because of the changing goal post and these unanswered questions. Mr. Randolph: So the answers to those questions are really irrelevant in regard to your client's decision because he has already made that decision. Mr. Roeder: We never had any answers to those questions, it was not evident at the last hearing, and if we had those answers to those questions it may have really helped to go a long way to be able to sit down with my client. Mr. Randolph: Did you ask those questions at the last hearing? Mr. Roeder: No, these are questions that have arisen. Basically, you and I had some discussions after the last hearing where we put forth the question about the liability issue, that's the biggest issue. Mr. Randolph: You are raising questions today that have not been raised in front of this Commission before, yet your client has already made the decision that he does not wish the Town to come in and test the accuracy of your engineer's report. Mr. Roeder: Without the answers to these questions, no he is not. Mr. Randolph: We have had since the last meeting to ask those questions and have them answered and yet your client, without the answers, has still made the decision not to allow the Town to test the accuracy of your report. Mr. Roeder: We are coming to a hearing today to answer why my client will not allow the Town to come in and verify his engineer's certification. We have asked many times at the last hearing, the issue Cwas we appealed the decision that a variance is required. We think Section 70-187(2) is quite clear, a variance is not required. If the Town wants to address the separate issue as to verifying our engineer's certification, that's a separate issue. We have appealed only the decision that a variance is required and that's what we are still waiting for and we have had other conditions put on us which we are not willing to accept. Mr. Randolph: I just want to speak to the accuracy of at least one of these statements about what you did at the last hearing. I believe the Town Commission was very clear at the last hearing that you are entitled to a variance for a metal roof subject to your meeting the conditions of 561-737-0188 Line 1 02:58:42 p.m. 07-02-2012 5/12 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 4 the Code, and those conditions of the Code were to get an engineer's certification stating that the structure would not support a tile roof, which you did. However, they have indicated, based upon other information that was presented at the hearing that cast some doubt on the engineer's report that it would be reasonable to allow the Town to just test the accuracy. So that's the issue and that's why they decided that they could not make a determination as to whether you needed a C. variance until they learned what your client was willing to do with regard to that particular matter. That is what is before this Commission today. Now that your client has refused to allow the Town to test the accuracy of your engineer's report, the matter is still in front of the Commission as to whether or not you need a variance. Mr. Roeder: The Town is putting a requirement on us that is outside the Code and we have asked to keep this a separate issue. We want the Town to decide, is a variance required? The Town is casting doubt on us for reasons we do not know. If you have cause you have to give us that cause as to why you do not think our engineer's certification is not accurate. The Town's motion said we will defer this and not make a decision until you provide our engineer the opportunity to verify your certification. We feel this is adverse to the Code, it is not what the Code says, the Code is very clear, we provided you with certification, we should be able to apply to receive a metal roof. The Town has coupled the two together and that is why my client is refusing the Town to verify the certification. Mr. Randolph: I think now is the opportunity to ask Mr. Roeder any questions in regard to this. Mayor Koch: Does your client, if the roof can hold the type of roof it has now, prefer that over the metal roof or does he really want a metal roof? Mr. Roeder: We put that into the record the last time, my client is not set on a metal roof. It came from the contractor that he wants a metal roof and not concrete tile. My client would love to have a concrete tile roof, but the engineer's certification says it will not handle it. He would like either shingle or shake, but shingle and shake are specifically and without exception prohibited under the Code. At least metal is a light roof which allows for an exception which my client Cneeds and that's why he came in asking for a metal roof. Vice -Mayor Orthwein said the house has held a concrete tile roof for 35 years and maybe it has deteriorated, but we cannot just accept your engineer's report and all we want is for our engineer to go in there and verify and you denied it now. Mr. Roeder: It is a monumental shift because the Code says you will provide A & B and now the Town is saying you provide A, B & you provide C. 561-737-0188 Line C 02:59:24 p.m. 07-02-2012 6112 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 5 Mr. Randolph: I don't think you are accurate, I think the Code says you provide A, but that doesn't mean the Town has to accept A without question. Your engineer's report which should be made a part of the record says "to the best of my knowledge this structure will not support a tile roof" and, on that basis, the Town has the right to check it. Mr. Thrasher to Mr. Roeder: Could you tell me if your client has spoken to any other structural engineer in regards to the integrity of the roof at 2520 Avenue Au Soleil. Mr. Roeder: At this time I do not know, I have no knowledge if he has or has not received an opinion from any other engineer. Mr. Thrasher: Do you have or have knowledge of any supporting documentation to Mr. Lunn's December 14th engineering report? Mr. Roeder: I do not have possession or have seen any of that supporting information. I just know that Mr. Lunn looked at some supporting information and even inspected the site and came up with this report. Mr. Thrasher read into the record Mr. Lunn's Engineering Report dated December 14, 2011 and addressed to Christopher O'Hare, 2520 Avenue Au Soleil, Gulf Stream Florida 33483 concerning the O'Hare Residence at that address. He asked Mr. Roeder if what he read was Mr. Lunn's Engineering Report and Mr. Roeder confirmed that. Mr. Thrasher stated that he provided Mr. Roeder with a copy of the Delray Beach Revision Form submitted to the Town on November 15, 2011 by the roofing contractor approximately 30 days prior to Mr. Lunn's certification, and he said the Revision reads: "Customer wants to change to a metal roof" and does not refer to the roof structure. Mr. Lunn's Engineering Report will be filed in the Official Records of the Town of Gulf Stream. Mr. Randolph administered the Oath to Rita Taylor, Town Clerk. Mr. Thrasher to Clerk Taylor: Could you tell me what the conversation was with the roof contractor, I believe her name is Diana, in regards to her providing you this form as a revision to the already permitted concrete roof? C Clerk Taylor: She said when she presented it that the owner had decided that he wanted to have a metal roof and the revision was for the previous application that had been submitted several months ago for the concrete tile roof. Mr. Thrasher: To your knowledge was that concrete tile roof permitted? Clerk Taylor: It was permitted by the Building Department in Delray Beach and she went on to say she was wondering why they had not been told to lay the tile because the underlay had been on for some time and that's when they received the revision form to go to metal. 561-737-0188 fine i 03:00:07 p.m. 07-02-2012 7/12 c Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 6 Mr. Thrasher to Mr. Roeder: Is it correct to say that your client became aware of the existing roof condition as a result of Mr. Lunn's technical report? Mr. Roeder: No. It is quite evident you are asking questions prompted by your attorney. Mr. Thrasher: Excuse me, that is not an assumption that is correct. Mr. Roeder: You made assumptions too, you made an assumption that Diana is the contractor, Diana is not the contractor, she is your contact person. The contractor of record I think is Mr. Maroni for Roofco. She is a contact person so what she says I think is irrelevant. You bring referrals to timelines, December 19th, and I told Mr. O'Hare you better get something in writing. He knew before the 11th that there was a problem, became concerned, he contacted Mr. Lunn who gave him a verbal, and after it was rejected I said I think you better go back and get something in writing, which he did on December 15th. We approached the Town in March saying why can't we do this and we were told you cannot do it period because one part of the Code says it can't be done, and we found out last month that that part of the Code does not apply. Mr. Randolph to Mr. Roeder: Is your client here to allow us to test the accuracy of the statements you are making on his behalf? Mr. Roeder: No, he is not. Mr. Randolph: Is the engineer here that did this report? Mr. Roeder: No, he is not. Mr. Randolph: Did you file for the engineer at the last hearing to allow the counsel to question the engineer in regard to his report? Mr. Roeder: I don't think we were asked to bring the engineer at the last hearing and no, we did not file. Mr. Randolph: Despite the fact that the letter said "if I can answer any other questions" the Town has not had an opportunity to have these questions answered by the engineer. Mr. Roeder: The same thing would be to ask, when we first approached the Town on November 15th about putting on a metal roof and the Town told us that metal roofs were not allowed period, why we were not told about the exception. We were not told about a section in the Code that allows you to have this and my client discovered this on his own. Mayor Koch said the Town would like another engineer to verify whether or not the structure can support a tile roof, and he said they cannot move ahead with the applicant's request until they can do so. Commissioner Devitt said the applicant probably was not told about the exception for a metal roof because he applied for a concrete roof 561-737-0188 Line 1 03:01:37 p.m. 07-02-2012 8112 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 7 replacement, and he said, with regard to the intent of the manual, a major item was to prohibit metal roofs. Commissioner Devitt said a special provision was written for those with existing shingle or shake roofs that could not later support concrete tiles without having to convert the entire roof system, which would have caused undue hardship. Mr. Roeder said the provision does not state that it applies only to those with shingle or shake roofs, he said all roof structures C' deteriorate over time and the provision should cover all categories. Commissioner Devitt agreed; however, he said the applicant has an existing concrete tile roof and he if the applicant is confident that the structure will no longer support it, he should allow the Town's engineer to verify. There were no comments by the Public. Mr. Randolph said he understands the applicant's position is that he has met the Code exception requiring only an engineer's certification and that there is nothing in the Code requiring a certification to be verified. On the record, Mr. Randolph stated, "Yes, the applicant is entitled to a metal roof without a variance as long as he meets the exception in the Code which requires him to provide the engineer's certification. He said this should set the record straight and it sets the question that may come before a subsequent court in the event the applicant decides to appeal. Based upon those facts, the question before the Board of Adjustment is, does the Board consider a variance to be required on the basis of the applicant's refusal to allow the engineer's certification to be tested?" Mr. Roeder said the engineer's language "to the best of my knowledge" is standard, and he said if the Board's position is that they doubt the engineer's certification, he believes it should be very specific in the record as to what casts that doubt. He asked, on the record, "What is the real reason as to why the Town is placing the extra requirement, is it because they do not like metal roofs?" Mr. Randolph said it is not that the Town does not like metal roofs, the Town provides an exception in its Code to allow metal roofs. He said there is a record before you from the last hearing which sets forth facts as to why the Board questions the engineer's report. It is based on previous conduct of your client, and based upon what has gone into the record today that, before getting an engineer's certification, the applicant previously stated that he wanted a metal roof. Mr. Roeder said his client never stated that he wanted a metal roof, that was something written on a Cpiece of paper. Vice -Mayor Orthwein said she stands by the previous request to have another engineer verify the certification. Commissioner Devitt said the Town has questioned submittals in the past and has consulted with their engineer on many occasions to acquire reasonable backup. Commissioner Dering moved to deny the request for a metal roof on the basis that the Town has not been allowed to verify the engineer's certification, and he further moved that the applicant can apply for a variance if he so desires. Mr. Randolph clarified the motion saying that the question before the Board is whether or not they sustain the opinion of the 561-737-0188 Une1 03:02:32 p.m. 07-02-2012 9/12 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page B Building Official that a variance is required. He said in the event the Board supports the Building Official's decision that a variance is required for a metal roof, the primary reason is that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because he has not allowed the Town to verify the engineer's report. Vice -Mayor Orthwein seconded the motion. There was Cno further discussion. All voted AYE. VIII. Items Related to Previous Approvals. A. Change of roof tile at 554 Palm Way submitted by Mark Marsh, Agent for Mr. & Mrs. James Davis Mark Marsh said revisions to originally approved plans for this property were approved by the Commission with the exception of the roof tile. He said the applicant wanted a gray tile, the Commission did not object to the color, but they requested to see a sample of the actual tile. Mr. Marsh said he submitted a gray tile to the ARPB at their April Meeting, which is smaller in size and has a different finish than the originally proposed tile, and the ARPB recommended approval. He displayed a sample of the new roof tile to the Commission. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the roof tile. There was no discussion. All voted AYE. IX. Reports. A. Utility Undergrounding Update -Danny Brannon (engineer) Danny Brannon reported that FP&L finally assigned an engineer to the project two weeks ago and his firm has had contact with FP&L several times. He said they have a redline design from both Comcast and AT&T and FP&L will be submitting their redline design. Commissioner Devitt asked if drawings will be available showing placement of the entire infrastructure and Mr. Brannon confirmed that. He said AT&T and Comcast have gone through the route, FP&L will do the same, and if there are no underground issues they will put a detailed construction plan together. Robert Ganger said Jupiter Inlet Colony has less than 1% left to complete their project and are approximately $500,000 ahead in cost. He said Danny Brannon has stayed on top of Gulf Stream's project, any delay caused by FP&L has been solved and, unless something unexpected comes up, the project will be completed on time and probably at a lower cost. Robert Sywolski of Gulf Stream said FP&L was in Town recently to repair C a fallen pole, leaving the grounds in despicable condition. Mayor Koch asked Mr. Sywolski to submit photos and he asked Mr. Thrasher to look into this. Mr. Brannon said his firm hires their own contractors who will be responsible for clean up, repair and replacement for any damage due to construction. B. Town Manager 1. Update on Conditions & Progress at 1220 N. Ocean Blvd. Mr. Thrasher said he and others have driven by the site since April 13th and observe a general condition of dust control, noise is not excessive, it is clear of trash and debris, and he said a superintendent has been assigned to the project. Staff has had various communications and meetings with Delray Inspections, Delray Landscaping & Planning, the 561-737-0188 Line 1 03:03:25 p.m. 07-02-2012 10112 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 9 Developer, Job Superintendent and Subs for site prep and drainage installation, and he said everyone is cooperating. The Gulf Stream Police Department regularly patrols this area and anything out of the ordinary will be reported to the Town Manager. Mr. Thrasher said Staff has received various certifications from Delray Landscape & Planning and the Developer's Landscape Architect stating that, to date, one tree on the eastern buffer has been removed, which should have stayed. He said C he just received an email saying Delray's Landscape Planner and Certified Arborist have verified Tree No. 167 on the eastern buffer is also damaged, there was visible trunk decay and it fell due to recent storms and termite damage. Mr. Thrasher said Staff has provided timely responses to several information requests, including copies of the approval process, permits, minutes of the subdivision approval process, etc. He said damage in the buffer area will be handled according to the conditions in the Land Clearing Section of the Subdivision Approval. Martin O'Boyle of Hidden Harbour Estates said that he and several of his neighbors are concerned with the removal of the Banyan Tree from Hidden Harbour Drive and he displayed a photo of Mrs. Touhy's driveway that recently appeared in the Coastal Star showing the scope of the damage to the canopy. He said the canopy damage is serious and professionals must come up with a design to close the hole. Mr. O'Boyle said he spoke to Tom Laudani this morning who is the Developer of the property, and he asked him to please work with the neighbors to rectify the situation. He said Mr. Laudani was angry and stated that he did nothing wrong, he did nothing to affect the canopy and he and his partners are ready to litigate. Mr. O'Boyle said loosing the canopy will devalue their property and he pointed out that, during the approval process, the developer agreed to protect and maintain the canopy over Hidden Harbour Drive and the neighbors relied on that statement. He said the neighbors do not want to take legal action, but he believes they are entitled to legal counsel, landscape architects and maybe a certified arborist to help them put the canopy back and he would like the Commissioners to look into this and help them. Mr. O'Boyle said he read the Interlocal Agreement between the Town and Delray Beach and it does not give Delray the right to approve removal of our trees. Tom Murphy, Esq. was present on behalf of the residents and neighbors of Hidden Harbour. He distributed a binder of information to the Commission. Mr. Murphy said when the proposal for the subdivision was presented last Spring, the ARPB was sensitive to the concerns of the residents with regard to the preservation of the canopy and they asked the Developer to meet with residents and neighbors. He said the Developer had a capable and powerful team of attorneys, an architect, a landscape architect and an engineer giving testimony on his behalf, and he said the Developer and his team did meet with residents and neighbors and developed an agreement. Mr. Murphy briefly summarized the information he distributed pointing out that, during original testimony of the Developer and his team, it was presented that a buffer zone and a meandering site wall would be designed for the preservation of the historic canopy. He said their representation that the canopy would not 561-737-0188 Line 03:04:23 p.m. 07-02-2012 11/12 Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 10 be altered was absolute and if the Commission relied on that, they have the right to force the Developer to rectify this situation. Commissioner Dering asked if there is proof that the tree was outside of the buffer. Robert Glynn of Delray Garden Center stated that the trunk was 50/50 outside the buffer and Commissioner Devitt said he drove by C the site, the trunk was there and it was outside of the buffer, but its removal affected the canopy. Mr. Randolph said whether or not the tree was outside of the buffer, it was made clear that the canopy was not to be disturbed. He said the canopy preservation was part of the Developer's Agreement between the Developer and residents, it was not part of the Subdivision Agreement between the Developer and the Town. However, he said the 15' buffer and preservation of the canopy was a concern and specifically addressed, and he said the Town has the right to red tag the project until the Developer complies. Commissioner Dering asked what the Town can legally do to assist the residents. Mr. Randolph said if the residents believe there is a violation, they ask the Developer to abide by their agreement and the Developer challenges, the Town will stand ready to testify. Commissioner Dering asked Mr. Randolph if he would look into what the Town can do to assist the resident and Mr.*Randolph agreed to do so. C. Architectural Review & Planning Board 1. Meeting Dates a. May 24, 2012 @ 8:30 A.M. b. June 28, 2012 @ 8:30 A.M. c. July 26, 2012 @ 8:30 A.M. d. No August Meeting. e. September 27, 2012 at 8:30 A.M. 2. Zoning/Development Code Amendment Recommendations Marty Minor said the ARPB has reviewed multiple provisions of the Zoning Code and have made their recommendations to the Commission. With regard to entry features, he said the Code previously allowed two interpretations which have been clarified to eliminate confusion. With regard to basements, Mr. Minor said they are not included in the FAR in current Code, but he said they are usable space. The ARPB recommends that if a basement can be accessed from the outside of the structure the square footage would count 100% of the FAR and, if not, it would count 75%. Mr. Randolph said the Commission will not be able to act on this matter Ctoday. He asked if they needed more time to review the recommendations and, if so, he suggested scheduling a special meeting for the purpose of discussing and acting on Code Amendment recommendations. Vice -Mayor Orthwein asked about slurry -coated roof tiles and if the ARPB recommends a definite no. Mr. Minor confirmed that. Vice -Mayor Orthwein moved and Commissioner Daring seconded to schedule a special meeting for the purpose of reviewing and acting on Zoning Code Amendments. Clerk Taylor suggested they hold a special meeting as soon as possible and prior to the June 8th Commission Meeting. She said consideration of the Code Amendments ties in with the Comp Plan Amendments, the Ads are set and everything should be complete by the July Meeting. The consensus of the We're sorry, but your incoming fax maybe incomplete. Please cull the sender to verify your fax or to request a re -send. Your fax may be incomplete because one or more of the following has occurred: 1. Fax transmission was interrupted. 2. "End fax" signal not received. 3. Unable to convert to desired file format. We apologize for any inconvenience. You will not be charged for this additional page. Tab 4 ir.14d401,r Ie':d2 FAA oLt24y72:,1 HH.HAI ITCH GIN11 INP IhI zijol .(jnI • 6.abs" .7Ib' Sr/ly prta%r gAau Il14ffDUN M1 oRFCi;f1 a1) NOV 15 2011 CITY OF DELR�AY BEACHFt soot REVISION REQUEST Date: Permh Number _ II — 13S-1 4�o ti Address Wvher�,e W� ork is Being Done (to include unit or bay number)• yr,LL'$ III+ I eL (QSaU jw- 5jle�i I + { t '';ctrl APPLICANT NAME; � 0o c•QDd q-ih aVF Phone. l Fax t ) Coned Person it IL _ Cell Phone x: ( ) y /� ADDED CONSTRUCTION COST FOR THIS CHANGE: SS� EXPLAINREV1SION. ,556 jeA W&AA +) 0,tae. W, j) I te,4-,•LI r UST NOTE To avoid delay„ the revision needs to be clear on the (2) drawings submitted. The Plan (e.. Reviewers may need the job site plans. I understand a fee maybe charged in accordance with the City of Delray Beach LOR 2.4.21 The foe for a revision is $75.00 for Qte first sheet, and $1.00 for each additional revised sheet. For ADDED CONSTRUCTION COST, the fee Will be based on the►Building Pemrtt Fees. ROUTING: MM DEPT APPROVED BYIDATE PIAN REVIEWER: OFFICE USE ONLY FEES: REVISIONFEE' ADDED VALUE PERMIT FEE: OTHER FEES AS APPLICABLE Parke S_..____._- Public Bldgs S Schools Road S Radon $ DPR S Other s TOTAL FEES OUE1 Rvsd 6110 Tab 5 ENGINEERING 221322w trop, Palm lkvch Gardens, FLIM18 Phoikr (56 1) K i -N• 55 Fav OM) 2Ht-2.515 DCt'Cn1UCr 14, 21111 Chris O'l lure 1520 Avenue Au Soleil Gulf Struon, FL 3:3483 Re O'I Lire Residence at 2520 Avenue Au Soleil, Gulf Stream, FI.. Dear Mr. O'Hare. On December 13, 2011,1 inspected the existing, roof framing at the referenced address. The, existing roof framing will not support tire design hinds of a concrete or clay file roof. The lightest roofing system possible is needed, I certify to the hest of my knowledge., belief and professional judgment that the referenced roof framing will nol,support a the roof. It I can lx of further service .lease call. rptl turn Sincerely, ,ss.� .%%I 1GE FpR� N T.E':.Lun f L�:P�eCEs ,(GZ� No 2611g 1rence F.l.ur4jjJ31E, 10—TAT€CHF -*to FL Reg. ft 26119 %<CS i p R 1 p &N�����` ",,S'`DNAL 0'01%' Cc; William Thrasher, Town Manuger, Town of Gulf Stream ENG IN EER I IN G 1'URRENC IE E. LUNN, P.L, FC51, CCs 231fiwutnon Ohre. 3AII3 Paint Beach GnrArlu, PL 333 t&—,W 1561) 525 6Z5 Fax: (561) 523 IWA3 e tn,ul, lcluruiGayr,��l, q Qualifications and Experience • 40 Years in ilia construction Industry • 10 feats as Dadc County Building Official • 15 years of structural design and analysis • 10 Years with general contractors • 28 Yrs Certified Construction Specifier • Registered Engineer In: Florida 30 yrs, Georgia. South Camlina. North Carolina, and with the National Council of Examiners for Engineering Awards and Recognition • Fellow of the Construction Specifications Institute(CSI) • Outstanding service award fmm FES • Certificate ofAppreciatinn,BOMA • Engineerof the Year. Miami Chapter FES • Public Official of the Year. IADC • Technical Commendation. CSI SE Region • Certificate of Appreciation, NAWIC • Harold Rappaport Award. CSI Miami • Merit Award as CSI Miami Chapter President Professional Associations • Construction Specifications Institute • Florida Engineering Society • National Society of Professional Engineers • American Society of Civil Engineers • American Concrete Institute • APA Engineered Wood Association • American Institute of Timber Construction Website: http://telunnpe.corn Resume: http://telunnpe.conVTE%20Lunn's%20Resume9.204-23.03%20w%201ago.pdf Tab 6 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA COMMISSIONERS WILLIAM F. AOCH. JR. Mayor JOAN N. ORFHWEIN. Vice Mayor FRED B. DEYm III CHRIS 0, WHEELER MURIEL J. ANDERSON March 6, 2012 Louis L. Roeder, Esquire 7414 Sparkling Lake Road Orlando, Florida 32819 Re: Christopher F. O'Hare 2520 Avenue ALL Soleil Gulf Stream, FL 33483 Dear Mr. Roeder: I am responding to your email to Mr. Randolph dated March 1, 2012 and your email to me dated March 5, 2012. You have asked several questions for which I will provide the following answers and information. "flus is to confirm that your client, Mr. O'Hare, has withdrawn the window and door change out permit application. The Town will indicate "withdrawn" on this application. Code Book There is one code book for the Town of Gulf Stream. This code is used by the Town Commission, Police Department, and Staff and is the same code that is available to the public. Interim amendments can be approved by ordinances through public process which do not immediately get codified. When a code book is purchased. copies of the un -codified ordinances are also provided at the time of purchase. Landscape Permits "Any" Section 70-146 through seclion70-150 provides standards and information for those applicants desiring to install landscaping. In those sections references are made in regards to what is "required", "preferred", "discouraged" and "prohibited". "The landscape architectural standards have been developed to reinforce the overall character and the image of the town environment." The use of the term "any" can be misleading in nature as the scope ofwork, amount, type, impact on adjoining and abutting properties of 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Telephone (56112765116 Fax /IL (561)TV41166 Town Manager WILLIAM H.THRASHER Town Clark RITA LTAYLOR I am responding to your email to Mr. Randolph dated March 1, 2012 and your email to me dated March 5, 2012. You have asked several questions for which I will provide the following answers and information. "flus is to confirm that your client, Mr. O'Hare, has withdrawn the window and door change out permit application. The Town will indicate "withdrawn" on this application. Code Book There is one code book for the Town of Gulf Stream. This code is used by the Town Commission, Police Department, and Staff and is the same code that is available to the public. Interim amendments can be approved by ordinances through public process which do not immediately get codified. When a code book is purchased. copies of the un -codified ordinances are also provided at the time of purchase. Landscape Permits "Any" Section 70-146 through seclion70-150 provides standards and information for those applicants desiring to install landscaping. In those sections references are made in regards to what is "required", "preferred", "discouraged" and "prohibited". "The landscape architectural standards have been developed to reinforce the overall character and the image of the town environment." The use of the term "any" can be misleading in nature as the scope ofwork, amount, type, impact on adjoining and abutting properties of 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Christopher F. O'Hare 2520 Avenue Au Soleil March 6, 2012 Part 2 the proposed landscape would be used to determine the level of approval required. A level I application is often discussed with the City of Delray for their input to determine the need of a Permit. Also, the determination and/or decision by the planning and building administrator can be based on section 66-1412 (h). That decision can be challenged as provided in section 66-145 (12). In fact, section 66-141 2(h) becomes relevant and applicable when the planning and building administrator has concerns about the potential impact of the proposed plan. Irritation Permit The City of Delray will most likely require an irrigation permit. in the event that Delray does not require an irrigation permit, a separate permit by the Town will not be necessary. Plantine in the Town Richt-of-way. One of the objectives of reviewing a landscape site plan is to help prevent unnecessary infringement onto neighboring or abutting properties. Many times new owners are not aware where their property lines actually are. The district of the subject property has very large road right-of-ways and is not easily determined at first glance. The use of a. property survey can easily provide basic guidance in such determinations. A similar situation occurred in 2004. This particular situation was observed by me when doing my "weekly drive by" in Place An Soleil. A new resident began "at will" to add hedges in the front of the home near the roadway. In doing so, die fire hydrant was covered from view. The owner was notified that the plantings were to be set back onto his property and out of the right-of-way. The owner did not agree and presented a challenge of my decision before the Town Commission. The Town Commission decided with the administrator and further directed that if similar situations occurred, action was to be taken to keep new plantings out of the Town's right-of-way. Additional discussion took place as related to existing hedges in the right -of -Way. i was directed to allow existing hedges in the right-of-way but in the event changes to hedges were requested, or occurred without a request, that I was to prohibit such actions. This is in part why your client does observe hedges, and in some cases trees, located in a similar directional line of sight. Through the natural evolution of the life cycle of landscape materials and owners desiring various changes or upgrades the Town's right-of-way will be available for infrastructure improvements. The Town Commission believes that this process is the least disruptive corrective measure to the neighborhood and the Town residents. This measure is consistent in all districts, not just the Place An Soleil district. Christopher F. O'Hare 2520 Avenue Au Soleil March 6, 2012 Part 3 Metal Roof— Principle and Minor Accessory Structures Your recently received email dated March 5, 2012 confirms, "In response to your email query of March 2, 2012, my client knows of at least two properties in Gulf&ream with metal roofs. These properties are not single family Ironies ". There is a distinction that does render consequences because the entire 70 Chapter "Gulf Stream Design Manual" pertains exclusively to single family homes. 4450 North Ocean Boulevard was just annexed into the Town in March 2011 and permitting for this structure was handled through the Palm Beach County review criteria. The Gulf Stream Multi Fancily Code available and used for the 3851 North Ocean Boulevard was silent to whether metal roofs could be used. Because the metal roof material was not stated or listed as prohibited by the code, the metal roof material was approved. The Town does not have a' list of metal roof materials' which you requested as such roof materials are prohibited by two section of the code; section 70-187(2) and 70-99 (3), with section 70-99 (3) being the most restrictive of the two. "Prohibited. Metal roofs (except unpainted copper when used as a decorative accent or on a minor accessory structure)". Therefore, a variance application would be required to allow the use of metal roof materials. A public hearing of the variance before the Town Commission is necessary. Property owners within 300 feet of this property will be noticed of this public hearing so that they can be heard as related to the variance request. At this hearing Mr. O'Hare's engineer can appear and present his findings, or he can have his letter placed in the record. The Town Commission would also hear from experts used by the staff. In the event a variance application is filed, permission to enter the structure will be necessary so that technical experts can properly evaluate the applicable structpral components. Within a couple of days of the completion of the variance application your client will be contacted to coordinate access to the premises. Your client can also choose to challenge this administrative decision as provided in section 66-145 (12). The Town's stafl' will provide the necessary paperwork and application materials upon your client's request. Respectfully, J+AJ 1.,� William H. Thrasher Town Manager Tab 7 GULF STREAM DESIGN MANUAL § 70-187 ARTICLE VI. DISTRICT STANDARDS Sec. 70-186. Generally. (a) The district standards, which are outlined in section 70-187, are based on the individual characteristics of the five single-family zoning districts discussed earlier in this chapter. The objective is to maintain and protect the existing distinctive character of each of the districts. As a result, sometimes even relatively subtle differences in design direction have been provided for in the standards. (b) These district standards are intended to be used in conjunction with areawide standards. Because many of the concepts are discussed and illustrated in article V, reference should be made to article V for a better understanding of a standard's intent. However, where the provisions of this article conflict with those in article V, the provisions of this article shall prevail. (c) Finally, it should be noted that these standards are the result of all of the issues discussed earlier in this chapter and clarification of intent may in fact be found in articles I and II. These standards are intended to allow a reasonable amount of individual design flexibility while keeping the interests of each neighborhood or zoning district in mind. Sec. 70-187. Table of district standards. Supp. No.1 CD70:77 ZoningDistricts Gulf Stream Core Ocean West Beachfront NorthlSouth Place au Soleil 1. ARCHITECTURAL STYLE Preferred Gulf Stream- Gulf Stream- Med. Revival Gulf Stream- Gulf Stream - Bermuda Bermuda Gulf Stream- Bermuda Bermuda Anglo Caribbean Anglo Caribbean Bermuda Anglo Caribbean Anglo Caribbean British Colonial British Colonial Anglo Caribbean British Colonial British Colonial Colonial West Colonial West British Colonial Colonial West Colonial West Indies Indies Colonial West Indies Indies Georgian Georgian Indies Georgian Georgian Med. Revival Med. Revival Georgian Med. Revival Med. Revival Discouraged Monterrey Non-descript, which is to be defined as not having an apparent architectural style including but not lim- ited to vernacular. Prohibited A -Frame, Geodesic domes, Art Deco, Contemporary, Cracker Other theme architecture not characteristic of South Florida or Gulf Stream 2. ROOFS (not applicable to decorative elements or roof features such as chimney caps, cupolas and dormers) Required 90% of visible roof must maintain a minimum slope of 10% True to architectural style Preferred Low pitched hip Low to medium Low to medium True to architec- Low pitched hip White the pitched hip or hip- pitched hip or hip- tural style White file for Gulf If two-story: gable combinations gable combinations Stream -Bermuda dormers and White tile White tile for Gulf Red barrel tile for stepbacks Stream -Bermuda Med. Revival Red barrel tile for Med. Revival Discouraged Front gable Front gable Front gable Styles which incor- Front gable Barrel tile porate very low or Pan file steep slopes S -tile and roll tile Supp. No.1 CD70:77 § 70-167 GULF STREAM CODE Supp. No. 1 CD70:78 Zoning Districts Gulf Stream Core Ocean West Beachfront North/South Place au Soleil Prohibited Steep roofs (aver S -tile and Roll the S -tile and Roll the 45") S -tile and Roll file Mansard Non-earthtone colors (except white) Bright, un -naturalistic looking roof material Metal roofs' Primary calor tiles/shingles Gambrel Flat (over 10% visible) All white tile other than Rat cement file 'Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re -roofing of existing structures based upon an engineer's certifica- tion that the existing structure will not support a tile roof Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. S. BUILDING HEIGHT Required Under 30 feet Under 30 feet Under 35 feet Under 30 feet Under 30 feet Preferred One-story One- or two- stories One- or two- stories I One- or two- stories IOne-story Discouraged One-story ceiling I One-story ceiling One-story ceiling height over 15 feet 1height over 15 feet height over 15 feet Prohibited Abrupt grade change between house and yard ("pedestal house" appearance) 4. WALLS (applicable to all walls located between the street and the minor accessary setback line. The measurement of all walls refer- enced herein shall be from the lowest grade adjacent to the wall.) Required 4-6 feet wallsAny walls or fences must be screened along ALA must be from AIA by land- screened by land- scaping leaping Wells must be finished on both sides Preferred None Intermittent or con- Intermittent or con- Accent only None Low wall/fence com- coaled by plant ma- cealed by plant ma- Correspond to ar- Low wall/fence com- bination terial terial chitecture bination Low wall/hedge Correspond to ar- Correspond to ar- Not to exceed more Low wall/hedge combination chitecture chitecture than 75% of front- combination Correspond to ar- age Correspond to ar- chitecture chitecture Simple, uncluttered, traditional farms Discouraged Use as perimeter Entry or accent Wall wall Excessive ornamentation including reveals, decorative tile, banding, etc. Prohibited Walls over 4 feet Walls and entry Walls and entry Walls and entry Walls over 4 feet Perimeter walls piers over 6 feet piers over 6 feet piers over 6 feet Perimeter walls Entry piers over 5 measured from the measured from the measured from the Entry piers over 5 feet lowest grade adja- lowest grade adja- lowest grade adja- feet cent to the wall cent to the wall cent to the wall Walls less than 12 feet from AIA r.o.w. line Unfinished concrete black (painted block is not considered "finished') Open bond "web" Solid continuous exposed walls Walls closer than 7.5 feet to the edge of street pavement Wells on rights-af-way or in visibility triangle 5. ENTRANCE GATES Required I None Supp. No. 1 CD70:78 GULF STREAM DESIGN MANUAL § 70-187 Supp. No. 1 CD70:79 Zoning Districts Gulf Stream Core Ocean West Beachfront North/South Place au Soleil Preferred Discrete or hidden Corresponding to Discrete or hidden None Corresponding to architectural style Corresponding to architectural style architectural style Discouraged All All All Prohibited All Primary color Primary color Over 6 feet Over 6 feet Over 6 feet Over 8 feet Solid Solid Solid 6. FENCES (applicable to all fences located between the street and the minor accessory setback line. The measurement of all fences refer- enced herein shall be from the lowest grade adjacent to the wall.) Required Fences must be Fences must be screened from view screened from view from AIA by lead- from any public or scoping private roadway by landscaping Pools 4 feet minimum Fences must be finished on both aides or screened Consistent with architectural style of house Preferred Low -open wood Low -open Consistent with ar- Consistent with ar- None Intermittent or con- chitectural style chitectural style Low -open wood cealed by plant ma- Intermittent or con- terial cealed by plant ma- terial Discouraged PVC, plastic or vi- PVC, plastic or vi- PVC, plastic or vi- PVC, plastic or vi- PVC, plastic or vi- nyl nyl nyl nyl nyl Solid (for example, Solid (for example, Fronting property stockade or shad- stockade or shad- Solid (for example, owbox) owbox) stockade or shad - Unpainted owbox) Unpainted Prohibited Over 4 feet Over 6 feet Over 8 feet Over 6 feet Over 4 feet Fences less than 12 feet from AlA no.w. line Chainlink (unless concealed by plant material) Fences closer than 7.6 feet to the edge of street pavement Fences on rights-of-way or in visibility triangle 7. WALLS AND FENCES: ALONG SIDE AND REAR PROPERTY LINES AND LOCATIONS NOT VISIBLE FROM STREET (Outside of front setback area. The measurement of all walls and fences referenced herein shall be from the lowest grade adjacent to the wall.) Required Pools -4 feet minimum Walls must be finished on both aides Fences must be two-sided or screened Preferred Consistent with architectural style Discouraged Walls or fences over Walls or fences over Walls or fences over 6 feet 6 feet 6 feet Prohibited Chainlink (unless concealed by plant material) Any wall or fence over 8 feet, as measured from the lowest grade adjacent to the wall Walls and fences over 4 feet located between minor accessory setback line and waters connected to the Intracoastal Waterway or the 1978 CCCL Solid continuous exposed walls S. DRIVEWAYS Required Sufficient to provide two off-street parking spaces. Supp. No. 1 CD70:79 § 70-187 GULF STREAM CODE (Ord. No. 00-1, §§ 26, 51, 3-10-00; Ord. No. 03-3, § 1, 5-9-03; Ord. No. 03-9, §§ 3-6, 10-10-03; Ord. No. 008-5, § 4, 9-5-08) Secs. 70-188-70-205. Reserved. Supp. No. 1 CD70:80 Zoning Districts Gulf Stream Core Ocean West Beachfront NorthlSouth Place au Soleil Preferred Pervious material Pervious material Pervious material Pervious material Pervious material for example: for example: for example: for example: or textured mono - Chattahoochee Chattahoochee Chattahoochee Chattahoochee lithic surface stone stone stone stone for example: Pavers Pavers Pavers Pavers Chattahoochee Not to exceed 50% stone of front yard Pavers Circular drives Textured concrete with island plant- ings Discouraged Asphalt Impervious drive- Asphalt Impervious drive - Impervious drive- way surfaces way surfaces way surfaces Untextured mono- lithic surfaces Prohibited Painted driveways Primary colors Exposed earth Tire strips 9. FRONT YARDS Required Compliance with the North Ocean Over- lay District requirements Preferred Screen from street Large spacious turf Screened from Open, naturalistic Open large turf or by 5 feet to 8 feet or low planted area, street by walls/ plantings planted area hedge or by low concealed by perim- plantings/ gates Informal groupings Scattered canopy fence (4 feet or un- eter plantings Naturalistic plant- Lush/exotics trees der) Dense natives Ings Foundation plant - Scattered canopy Informal ings trees Layered lush/exot- ics Discouraged Open yards Wide open view Wide open view Tall hedges from street from street Prohibited Hardscape over Hardscape over Hardscape over Hardscape over Hardscape over 60% of front yard 20% of front yard 20% of frontyard 60% of front yard 40% of front yard (Ord. No. 00-1, §§ 26, 51, 3-10-00; Ord. No. 03-3, § 1, 5-9-03; Ord. No. 03-9, §§ 3-6, 10-10-03; Ord. No. 008-5, § 4, 9-5-08) Secs. 70-188-70-205. Reserved. Supp. No. 1 CD70:80 Tab 8 § 70 99 GULF STREAM CODE Excessive height and mass Sec. 70.99. Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 28° or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 2V2 feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) CD70:44 a ... w�l ;1f { e1 ��. Excessive height and mass Sec. 70.99. Roof design, slope and materials. Roofs are a major visual element and should be carefully considered as to the proportion, texture, color and compatibility with both the house style and neighboring buildings. Similarities in roof types create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging eaves provide a reassuring sense of shelter and create shade for underlying windows. (1) Preferred. Exposed gutters and downspouts painted to match adjacent roof or wall material Exposed rafter tails Flashing, vent stacks, and pipes painted to match adjacent building surface Gutters and downspouts designed as a continuous architectural feature Hip or gable roofs Low pitched roofs (under 28° or 6:12 slope) Roof material true to architectural style Roof overhangs (two to 2V2 feet) Roof pitches over porches or ancillary structures (under 45° or 1:1 slope) CD70:44 GULF STREAM DESIGN MANUAL § 70-99 Simple roof geometry Tile roof material (2) Discouraged. Roof material uncharacteristic of architectural style or zoning district "S" -shaped tile in some districts Shed roofs Steep slopes (over 45° or 1:1 slope) Very low pitched roofs (less than 18° or 5:12 slope) Low Slope Under 29' (6:12 ,lope) Average Slope 28-45° (6:/:11,1222--[: 1 :\11))) F A r ySteep Slope Over 45° ([:I slope) (3) Prohibited. Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs OC, Com CD70:45 Hin Gable Shed (Discouraged) Q5 Flat Prohibited Gambrel (Prohibited) Mansard (Prohibited) Low Slope Under 29' (6:12 ,lope) Average Slope 28-45° (6:/:11,1222--[: 1 :\11))) F A r ySteep Slope Over 45° ([:I slope) (3) Prohibited. Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood shingles Bright, unnaturalistic-looking roof material Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof massing Gambrel roofs Glazed skylights on the streetside Inconsistent roofing materials visible from the exterior of the property, except approved accent materials Mansard roofs OC, Com CD70:45 § 70-99 GULF STREAM CODE Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow Primary color tiles and shingles Roll tile and similar tile styles in all districts except Place Au Soleil S -Tile in all districts except Place An Soleil Solar panels on the streetside Unnecessarily complex or monolithic roof design All white tile other than flat cement tile (Ord. No. 00-1, § 36, 3-10-00; Ord. No. 03-9, § 2, 10-10-03) Sec. 70-100. Roof and eave heights. (a) Generally. (1) The height and number of eave lines and the overall height of a structure play an important role in establishing visual continuity with other structures on the street and maintaining an appropriate residential/human scale. Most structures in the town are characterized by simple roof designs with low to medium eave heights and roof heights. This type of design emphasizes the horizontal dimension of the structure while minimizing the vertical dimension. (2) Roof height is measured from the top of the first finished floor to the highest exterior point on the roof. Eave height is measured from the top of the first finished floor to the top of the roof beam at the end of the beam (top of flashing). Different eave heights establish different eave lines. Two or more separate roof areas with the same eave height are considered to have the same eave line. (3) Roof features can provide appropriate design articulation to a roof area, but should be used sparingly to avoid unnecessary and undesirable complexity. Roof features include, but are not limited to, chimneys, cupolas, decorative towers, dormers, and small cut-outs and extensions. Two or more dormers are considered to be one roof feature, as are two or more chimneys. (4) Entry features, if used, should provide a sense of arrival to visitors, yet should not overpower them or the remainder of the structure. The scale and proportion of entry features should be consistent with the rest of the structure, varying just enough to provide a focal point to the front of the house. (b) One story homes. (1) Preferred. Eave heights: From eight feet to ten feet six inches (from eight feet to 12 feet for entry features) Eave lines: Three or less Roof features: Three or less visible per building side Roof heights: 20 feet or less (24 feet or less for roof features) (2) Discouraged. Eave heights: Between ten feet six inches and 12 feet (between 12 and 14 feet for entry features) Eave lines: Four Roof features: Four visible per building side Roof heights: Between 20 and 24 feet (between 24 and 28 feet for roof features) OC, Corr. CD70:46 Tab 9 May 30, 2012 Christopher F. O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: This is to confirm that at the Public Hearing held by the Board of Adjustment on April 13, 2012 and continued to May 11, 2012, your application for an Appeal of Final Action of the Planning and Building Administrator,that action being the denial of your request to replace the existing roof with a metal roof rather than concrete tile for which a permit had been issued, and further determining that a variance application and it's approval would be necessary in order to allow a metal roof, was considered. The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not not allowed the Town to verify the engineering report you submitted, with regard to the strength of the structure. Very truly yours, Rita L. Taylor Town Clerk cc: Attny. Louis Roeder 100 SEA ROAD, GULF STREAM, FLORIDA 33483 TOWN CIF (GULF STREAM PALM BEACH COUNTY, FLORIDA LOMMISIONERS Telephone WILLIAM F. KOCH, JR. Mayor JOAN K ORTHWEIN, VKa Mayor t_y„ 4 .� I %t 47676-SI IG Fa i 7y •D1BS FRED S. DEVITTIII7D W. GARRETT DERING � j .e,>% "'V� Town Manager MHRIEL J. ANDERSON'tt),��,; WILLIAM H. THRASHER Town Clerk RITA L TAYLOR May 30, 2012 Christopher F. O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: This is to confirm that at the Public Hearing held by the Board of Adjustment on April 13, 2012 and continued to May 11, 2012, your application for an Appeal of Final Action of the Planning and Building Administrator,that action being the denial of your request to replace the existing roof with a metal roof rather than concrete tile for which a permit had been issued, and further determining that a variance application and it's approval would be necessary in order to allow a metal roof, was considered. The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not not allowed the Town to verify the engineering report you submitted, with regard to the strength of the structure. Very truly yours, Rita L. Taylor Town Clerk cc: Attny. Louis Roeder 100 SEA ROAD, GULF STREAM, FLORIDA 33483 Tab 10 IN THE CIRCUIT COURT OF THE 15' JUDICIAL DISTRICT, IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Petitioner, V. Appellate Division (Civil) Case No.: 2012CA01107 Town of Gulf Stream, Respondent. AMENDED Petition for Writ of Certiorari from Decision of Town of Gulf Stream Board of Adjustment made May 11, 2012 and rendered May 30, 2012 Denying Petitioner's Application for a revision to an existing Building Permit for a replacement Metal Roof Attorneys for Petitioner Carter Law Firm, LLC 102 NE 2"d Street, Suite 179 Boca Raton, FL 33432 Tel: 561-368-9900 io hnacarterl awfi rm. us Louis Roeder 7414 Sparkling Lake Road Orlando, FL 32819 Tel: 407-3524194 Fax: 866-610-6090 lou(a-)loun�edercom AMENDED PETITION FOR WRIT OF CERTIORARI The Petitioner, CHRISTOPHER F. O'HARE ("O'Hare") respectfully petitions this Court for a Writ of Certiorari to review the Decision of the Board of Adjustment of the Town of Gulf Stream ("Gulf Stream"), denying Petitioner the right to apply for a revision to the existing residential Building Permit allowing for the replacement of a tile roof with a metal roof. BASIS FOR INVOKING JURISDICTION This Court has jurisdiction to issue a Writ of Certiorari pursuant to the Gulf Stream Code of Ordinances, Section 66-174(10) and under Rule 9.030(c)(3) of the Florida Rules of Appellate Procedure. STANDARD OF REVIEW Where a party is entitled as a matter of right to seek review in the circuit court from an administrative action, the circuit court must determine (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419, So. 2d 624 (Fla. 1982); Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995); Cherokee Crushed Stone, Inc. v. City of Miramar, 421 So.2d 684 (Fla. App. 4Dist., 2 1982). As set forth in further detail below, all three elements are present in this instance. First, the lower Tribunal's action in denying O'Hare's permit application resulted from an impermissible act of legislative power in violation of the essential requirements of law. Additionally Gulf Stream's unlawful "legislative act" violated O'Hare's procedural due process rights. Second, in denying O'Hare's application, Gulf Stream refused to accept the plain meaning of its own ordinance. Instead, because of some unspecified suspicions regarding O'Hare's interest in placing a metal roof on his home, it determined that it was necessary to impose a new and unwritten condition on O'Hare's permit application. Third, despite allegations by Gulf Stream representatives of "suspicious conduct" by O'Hare, there is an absence of competent evidence to support such a finding. Accordingly there were no finding of facts made to support Gulf Stream's denial of O'Hare's right to obtain a metal roof permit. To the contrary, there is substantial competent evidence found in the record to support findings that (1) O'Hare was wrongfully denied the right to apply for a metal roof permit; (2) despite being denied the right to apply, O'Hare fully satisfied Gulf Stream's requirements for a metal roof; and (3) k" O'Hare is entitled to the issuance of a re -roofing permit allowing him to install a metal roof on his existing residence. STATEMENT OF THE FACTS 1. On August 29, 2011, O'Hare submits a "ROOF/RE-ROOF PERMIT APPLICATION" to Gulf Stream for a replacement roof on the single family residence to which he was making improvements. The approved roofing material was concrete tile which was similar to the existing tile on the roof at the time the re -roof permit was applied for. 2. The Re -Roofing Permit ("Permit") was issued on or about the day it was applied for. It contained no expiration date although it required that work be commenced within 1.80 days or it would expire. 3. After the existing roof tile had been removed in preparation for the roof installation, O'Hare became concerned that the underlying structure of the building may not be able to safely support a concrete tile roof. 4. On November 15, 2011, O'Hare's agent, a representative of RoofTec, the roofing contractor, met with William H. Thrasher ("Thrasher"), Gulf Stream Planning and Building Department Administrator also Town Manager, to determine the appropriate procedure for modifying the Permit to allow for the installation of metal roofing materials in lieu of the concrete tile material that had been approved. 4 5. On November 15, 2011, Thrasher, acting as the Planning and Building Department ("Building Department") Administrator ("Administrator"), responded to the inquiry by O'Hare's agent by stating that "No metal roofs are permitted in Gulf Stream, period". 6. Prior to the November 15, 2011 meeting between Thrasher and O'Hare's roofer, O'Hare learned, contrary to Thrasher's representation, that Gulf Stream's building code did in fact allow for the installation of metal roofs on single family homes. While there is a general prohibition of metal roofs contained in Section 70-99 (3) of Gulf Stream's building code, this is pre- empted by an exception contained in Section 70-187 (2) of the code. 7. To determine whether he would qualify for a Section 70-187 (2) exception, O'Hare retained Terrence E. Lunn, a licensed professional engineer to inspect the existing structure on December 13, 2011. On December 14, 2011 Lunn provided O'Hare with a signed and sealed Engineering Certification ("Certification") which concluded that the subject structure would not support a concrete tile roof. 8. On February 21, 2012 O'Hare provided Thrasher with a copy of the Certification and expressed his intention to apply for a change to the Permit pursuant to Section 70-187 (2). 9. On March 6, 2012 Thrasher, the Town Manager, acting as Administrator, issued an administrative decision (in the form of a letter) informing O'Hare that 5 in order to receive approval to install a metal roof, he would have to obtain a variance as provided for in Gulf Stream's Land Use Code (Chapter 66 of the Gulf Stream Code of Ordinances). 10. O'Hare appealed the March 6, 2012 administrative decision to the Board of Adjustment ("Board") of the Town of Gulf Stream. A public hearing on the appeal was commenced on April 13, 2012 and continued on May 11, 2012. On May 11, 2012 the Board orally announced its denial of O'Hare's appeal. 11. On May 30, 2012 the Board issued its Notice of Final Action, sustaining the opinion of the Administrator and requiring that O'Hare obtain a zoning variance before proceeding with the installation of a metal roof. RELIEF SOUGHT The Petitioner is seeking a determination that in denying his right to apply for a building permit to install a replacement metal roof on his residence, Gulf Stream exceeded its lawful authority and violated O'Hare's property rights. Based upon such a determination, Petitioner is requesting this court to reverse the decision of the Gulf Stream Board of Adjustment and remand this matter to Gulf Stream with the directive that a building permit forthwith be issued to allow the construction of a metal roof on O'Hare's residential structure. 0 ARGUMENT When all sections of the Gulf Stream Code of Ordinances are read together as it relates to the issue of whether a home owner can re -roof an existing single family stricture with metal roofing materials, it is clear that (when factually applicable) Section 70-187 (2) controls. In fact this is irrefutable as evidenced by the admissions of Gulf Stream's attorney, John Randolph, who made such statements at the first hearing of the Board of Adjustment conducted April 13, 2012. See pages 32 to 33 of the transcript. While metal roofs are generally prohibited in the Town of Gulf Stream, the unambiguous language of Section 70-187(2) states that they may be approved in "instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof'. In this case O'Hare initially intended to re -roof his existing structure with concrete tiles. He appropriately applied for and was granted a permit that, among other things, enabled him to remove the existing roof and prepare the structure for installation of concrete tiles. Approximately three (3) months after the permit was issued following removal of the existing materials and examination of the underlying structure, O'Hare became concerned that the roof may not be capable of safely carrying the weight of concrete tiles. Accordingly, he requested that his roofing contractor investigate the option of a much lighter metal roof. Upon inquiry to the Gulfstream Planning & Building Administrator, an agent for the roofing contractor was told categorically that metal roofs were not allowed in Gulf Stream and essentially that "O'Hare need not apply". No mention was made of the exception contained in 70-187 (2) by Gulf Stream's building department officials. After learning of the Sec. 70-187(2) exception on his own, O'Hare obtained an Engineer's Certification stating that the existing structure could not support a concrete tile roof and presented this to the Administrator. After the Certification was submitted, the Administrator determined that O'Hare should not be allowed the opportunity to apply for a revised roof permit for a metal roof. (See March 6, 2012 letter -decision by Thrasher) This was based on Thrasher's interpretation of the code, which he said required O'Hare to obtain a zoning Variance pursuant to Gulf Stream's Land Use Ordinance which is codified in Chapter 66 of its Code of Ordinances. (See March 6, 2012 decision letter) While judicial deference should be given to an agency's interpretation of its own rules, this deference ceases when the agency's construction clearly contradicts the unambiguous language of the rule. Kearse v. Department of n Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985). The instant case has facts similar to those in Woodley v. Department of Health and Rehabilitative Services, Dist. 3, (Fla. App. 1 Dist., 1987). In Woodlev, the First District Court of Appeal reversed an agency's denial of a permit due to the agency adding an additional requirement to the unambiguous language of its own rule which it was required to follow. As in Woodley, it is improper for the Building Department to effectively amend its own rules by inserting a new and unwritten provision into the building code it is obligated to follow. To allow this would be tantamount to permitting an administrative body to legislate. In the case at hand, Thrasher's decision must be overturned since it denied O'Hare his right to procedural due process and is a clear departure from the essential requirements of the law. The only subject of the public hearings below was the review of Thrasher's denial of O'Hare's entitlement to apply for a metal re -roofing permit. The legal sufficiency of the Certification was never called into question by the Administrator prior to the Administrative Appeal. As such there was no issue before the Board on this appeal that concerned the reliability of the Certification. Nonetheless the Board primarily focused on this non -issue and arguably 0 became fixated on concerns about the reliability of the Certification. While never clearly articulated, it is evident from statements made at the Hearings that the Board and the Administrator have suspicions that there is something dubious about O'Hare's intentions of installing a metal roof and that the Engineering Certification he submitted is somehow tainted or unreliable. For these reasons the Board perceived that the Department possessed inherent authority to require an independent review and "report" from the Town's engineer before it could accept a permit application from O'Hare. It is indisputable that the Board's decision to affirm the Administrator's decision was the result of its singular focus and debate on this non -issue. (See page 33 May 11, 2012 hearing) Confusion was added to this debate by members of the Board who mischaracterized the Certification requirement of 70-187 (2) as calling for an engineering "report". Again, questions of reliability and/or verification of the Certification were not issues to be considered in the Appeal. Even if these issues were relevant to the Board's decision, there is an absence of substantial competent evidence in the record to show cause why O'Hare's Certification should not be accepted by the Department. By contrasting Thrasher's March 6`h administrative ruling with the May 10 30`x' appellate decision of the Board, it is obvious that the Town of Gulf Stream failed to comply with the essential requirements of the law, including its own legislative enactments when considering O'Hare's request to re -roof his residence with metal materials: "A variance application would be required [in connection with O'Hare's request for a modification of his existing building permitl to allow the use of metal roof materials." March 6, 2012 administrative ruling of Planning and Building Department. "The Town Commission, sitting as the Board of Adjustment, sustained the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because [the applicant has] not allowed the Town to verify the engineering report [it] submitted, with regard to the strength of the structure." May 30, 2012 decision of Board ofAdjustment. Even if sufficiency and/or legitimacy of the subject Certification was an issue before the Board, which it was not, there is no evidence to suggest that the Certification did not satisfy Gulf Stream's own statutory requirements for obtaining permission to install a metal roof. Clearly O'Hare's procedural due process rights have been violated by the Town of Gulf Stream. The factually correct, although legally invalid reason that the Administrator denied O'Hare the right to obtain a metal re -roofing permit, is 11 that the Town of Gulf Stream has a bias against metal roofs and does not wish to see them on homes inside its borders. (See page 17, line 21 of April 13, 2012 hearing) which reinforces Thrasher's November 15, 2011 declaration "no metal roofs in Gulf Stream, period." In Gulf Stream's attempt to legally justify the unlawfiil imposition of this bias against O'Hare, both the Administrator and several Board Members made the following curious statements on the record which illustrate its eagerness and creativity to thwart O'Hare's right to a metal roof: "It appears obvious to me that the metal roofs are not desired, and it is not something that, on a single-family home, that the residents want to have appearing." Seepage 17 of Apri113'hHearing-Thrasher. "Just to say that because they provided this document (engineer's certification) and because the code says it should prevail, it should have some.... the town should have some voice in what.... their engineers, their experts might say". See page 18 of Apri113"` Hearing -Thrasher. "And again, going back to the intent of the manual, one of our major 12 items was to prohibit metal roofs." See page 23 of May II `h Hearing -Board Member Fred B. Devitt. "I believe under the circumstance there's a variance required, because [there's] so much question with your engineers report. See Page 26 of April I3°i Hearing -Board Member Joan K. Ortwein. O'Hare does not dispute Gulf Stream's right to be biased against metal roofs. It is recognized that Gulf Stream possesses the power to legislate and adopt provisions in its Code of Ordinances that allow it to implement such biases. O'Hare simply requested that the Town of Gulf Stream lawfully apply the section of its "existing" building code dealing with residential re -roofing according to its plain and unambiguous terms so that he could complete the installation of a roof that is safe for him and his family. Should Gulf Stream later wish to amend its code it must do so in accordance with constitutional and legal principles and constraints and not by administrative action. WHEREFORE, the Petitioner respectfully requests this Court exercise jurisdiction and grant a Writ of Certiorari quashing the decision of the Board of Adjustment of the Town of Gulf Stream and determining that Petitioner has satisfied 13 the requirements for the metal roof exception set forth in Section 70-187 (2) of Gulf Stream's Code of Ordinances. Petitioner further requests that this matter be remanded to the Town of Gulf Stream with instructions that it compel its Building Department Administrator to forthwith take all appropriate action consistent with the Court's decision. Dated: June, 2012. Respectfully submitted, Jo E. Carter, Esq. a -Coup el for Petitioner Florida B r No. 460036 102 NE 2 d Street, Suite 179 Boca Raton, FL 33432-3908 Telephone: (561) 368-9900 Facsimile: (561) 368-8499 geder, Esq. Co-Coun el for Petitioner Florida Br No. 0004316 7414 Sparkling Lake Road Orlando, FL 32819 Telephone: (407)352-4194 Facsimile: (866) 610-6090 14 Tab 11 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR PALM BEACH COUNTY APPELLATE DIVISION (CIVIL) CASE NO.: 502012CA011078XXXCvIB DIVISION: AY CHRISTOPHER O'HARE, Petitioner, V. TOWN OF GULF STREAM, Respondent. RESPONSE TO AMENDED PETITION FOR CERTIORARI Respondent, TOWN OF GULF STREAM (the "Town"), responds to the amended petition for writ of certiorari filed by petitioner, CHRISTOPHER O'HARE ("Mr. O'Hare"), as directed by the order to show cause this Court issued on September 10, 2012. The amended petition should be denied for the following reasons:1 1 The following symbols are used: (A-_) = the appendix attached to Mr. O'Hare's amended petition for writ of certiorari; (AA-__) = the appendix to this response. All emphasis is supplied unless otherwise indicated. 1 I. JURISDICTION This Court has certiorari jurisdiction to review the Town's decision that Mr. O'Hare may not install a metal roof on his home until a variance to permit such material has been applied for and approved. See Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (explaining that circuit courts have certiorari jurisdiction to review quasi-judicial actions of local government agencies); Fla. R. App. P. 9.030(c)(3). On certiorari review, this Court cannot reweigh the evidence. Id. at 846. Rather, the Court is limited to determining: (1) whether the Town accorded procedural due process; (2) whether the Town observed the essential requirements of the law; and (3) whether competent substantial evidence supports the Town's administrative findings and judgment. See, e.g., Broward County, 787 So. 2d at 843; Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Mr. O'Hare failed to establish any of these requirements for this Court to issue a writ of certiorari. I. STATEMENT OF THE CASE AND FACTS Mr. O'Hare owns residential real property located at 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 (the "Property) (A-3). This case concerns Mr. O'Hare's request to replace the existing roof on the Property with a metal roof. The Town of Gulf Stream Municipal Code of Ordinances (the "Code") generally 7 prohibits metal roofs, but provides that "certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only in instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof' (A-2). There has been a concrete tile roof on the Property for forty (40) years (A-6:6, 7, 8). The Property was built in 1972 with a concrete roof, it was re -roofed in 1999 with similar concrete material, and it has been able to support a concrete roof to date (A-6:5). On August 29, 2011, Mr. O'Hare submitted a re -roof permit application ("Permit Application") to the City of Delray Beach requesting a permit for a flat, white, concrete tile roof (A-1). The Permit Application was approved on the same day (A-1). At some point between August 29, 2011 and November 15, 2011, Mr. O'Hare decided he wanted a metal roof instead of a concrete tile roof. On November 15, 2011, Mr. O'Hare's re -roofing contractor, Rooftec Corporation, submitted a revision request to the Permit Application which states, "Customer wants to change to metal roof' (AA -1). Approximately one month after Mr. O'Hare submitted the revision to the Permit Application, he retained Terrence E. Lunn, an engineer, to inspect the 3 Property and provide a certification that the Property could not support a concrete tile roof (Am. Pet. at 5). On December 14, 2011, Mr. Lunn executed a letter stating, "I certify to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof' (A-3). The letter also states, "If I can be of further service please call." (Id.) On February 21, 2012, Mr. O'Hare provided William Thrasher, the Town Manager ("Mr. Thrasher"), with a copy of Mr. Lunn's certification (Am. Pet. at 5). On March 6, 2012, Mr. Thrasher, acting as administrator, issued an administrative decision informing Mr. O'Hare that in order to receive approval to install a metal roof, he would have to obtain a variance as provided in the Town's Land Use Code. (Id.) On March 31, 2012, Mr. O'Hare appealed this administrative decision to the Board of Adjustment (the `Board") (A-5). The Town gave notice to Mr. O'Hare that a public hearing on the appeal would take place on April 13, 2012 (AA -2). The Town commenced the public hearing on April 13, 2012 which was continued on May 11, 2012 (Am. Pet. at 6). The Town sent Mr. O'Hare and his counsel copies of the Agenda in advance of each hearing (AA -3; AA -4). The Town took steps to verify the engineer's report, but Mr. O'Hare refused to provide backup for Mr. Lunn's certification and did not allow the Town to C! inspect the Property. Specifically, at the April 13, 2012 hearing, the Town Clerk testified that she requested three dates and times that Mr. O'Hare would permit the Town's engineer to enter his Property to conduct an independent inspection (A- 6:6). She also requested backup information to support Mr. Lunn's certification. (Id.) Mr. O'Hare refused both requests.djd. Counsel for Mr. O'Ilare acknowledged at the hearing that it is possible to get a variety of interpretations from engineers regarding the ability of a structure to support a particular type of roof (A-6:8). At the April 13, 2012 hearing, a motion was made that if Mr. O'Hare allowed the Town's engineer to inspect the Property and there was a conflict between the certifications of Mr. Lunn and the Town's engineer, then the two engineers would select a third engineer for a resolution (A-6:9; A-7:2). Again, Mr. O'Hare's counsel communicated that Mr. O'Hare would not allow another engineer to inspect the Property (A-7:2). The April 13, 2012 hearing was continued on May 11, 2012 (A-7:2). Neither Mr. O'Hare nor Mr. Lunn were made available at the May 11, 2012 hearing (A-7:6). The Town was given no opportunity to question them regarding Mr. Lunn's certification or to test the accuracy of the statements being made by 5 Mr. O'Hare's counsel on Mr. O'Hare's behalf (Id.). The Board orally denied Mr. O'Hare's appeal at the May 11, 2012 hearing (A-7:8). On May 20, 2012, the Board issued its Notice of Final Action denying Mr. O'Hare's appeal and sustaining "the opinion of the Building Official that a variance is required in that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because you have not allowed the Town to verify the engineering report you submitted, with regard to the strength of the structure" (A-8). Mr. O'Hare filed a petition for certiorari seeking review and amended his petition to include an appendix. H. ARGUMENT CERTIORARI MUST BE DENIED WHERE THE TOWN ACCORDED DUE PROCESS AND THE ESSENTIAL REQUIREMENTS OF LAW, AND ITS FINDING THAT MR. O'HARE DID NOT FALL WITHIN THE EXCEPTION TO ALLOW A METAL ROOF IS SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE BECAUSE THE RECORD REFLECTS MR. O'HARE REFUSED THE TOWN AN OPPORTUNITY TO VERIFY HIS ENGINEER'S CERTIFICATION. This Court has no jurisdiction to issue a writ of certiorari because the Town afforded Mr. O'Hare due process, observed the essential requirements of law, and its judgment that Mr. O'Hare did not satisfy an exception in the Code to allow a metal roof because Mr. O'Hare refused the Town the opportunity to verify his 0 engineering certification was supported by competent, substantial evidence. See, e.g., Broward County, 787 So. 2d at 843; Haines Citv, 658 So. 2d at 530. A. The Town Properly Exercised its Discretion in Finding Mr. O'Hare Did Not Fall within the Exception to Allow Metal Roofs and Is Entitled to Deference. The Town's interpretation of its own ordinance is entitled to deference. See Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) (citing Verizon Fla Inc.y. Jacobs, 810 So. 2d 906, 908 (Fla. 2002) (stating that courts ordinarily defer to a governmental body's interpretation of a statute or rule unless the interpretation conflicts with the plain and ordinary meaning of the provision); Colonade Medical Center, Inc. v. State A¢ency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003) ("It is a well-established maxim that an agency's interpretation of its own rules and regulations is entitled to considerable deference."). Here, the plain language of the ordinance supports the Town's exercise of its discretion to deny Mr. O'Hare's request to install a metal roof. The parties agree that the controlling ordinance is § 70-187(2) of the Code (A-2). The Code generally prohibits metal roofs. However, footnote I of § 70- 187(2) contains the following language: Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may 7 be approved only in instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof. The word "may" is crucial to the analysis of this case. A basic rule in constructing statutes or ordinances is that words are to be given their plain meaning. Canal Ins. Co. v. Giesenschlae, 454 So. 2d 88, 89 (Fla. 2d DCA 1984). The plain meaning of the ordinance grants the Town discretion to approve or not approve a metal roof. The ordinance's permissive language places the Town under no obligation to approve a metal roof, even if the homeowner provides an engineer's certification. And even in instances of approval, the Town reserves the right to determine the type of metal roof to be installed by the homeowner. Here, Mr. O'Hare initially requested a permit for a concrete tile roof (A-1). Three months later, Mr. O'Hare's contractor requested a change to the permit application, this time to apply for a metal roof (AA -1). Mr. O'Hare's engineer, Mr. Lunn, then provided a certification stating, "I certify to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof' (A-3). The subject Property has supported a concrete tile roof for forty (40) years (A-6:6, 7, 8). Given the Property's history of being supported by a concrete tile roof and the certification's language leaving room for a different opinion, the Town decided 8 it wanted its engineer to inspect the Property before exercising its discretion in favor of allowing the metal roof (A-6:5, 6; A-7:6). If the opinion of the Town's engineer conflicted with that of Mr. Lunn, the Town proposed that the two engineers could choose a third engineer for resolution (A-6:9; A-7:2). The Town also requested backup for Mr. O'Hare's certification (A-6:6). Not only did Mr. O'Hare refuse to allow the Town's engineer to inspect the Property, he also refused to produce backup information for the certification Id.) No one disputes that Mr. O'Hare was given ample notice of the hearings. He voluntarily chose not to appear and testify at either hearing and decided not to produce his engineer for questioning (A-7:6). The Town observed the essential requirements of the law in exercising its discretion within the plain meaning of its ordinance. Lastly, competent substantial evidence supports the Town's denial of Mr. O'Hare's request because the only evidence Mr. O'Hare presented to the Town for its consideration of approval of a metal roof was a letter from Mr. Lunn stating that to the best of his knowledge, belief, and professional judgment, the Property could not support a metal roof. Mr. O'Hare provided no supporting documentation for the letter, failed to produce his engineer for questioning, and refused to allow the Town's engineer to inspect the Property. On the record, the Town Attorney verified Mr. O'Hare's repeated refusals through questioning Mr. LI O'Hare's counsel at the May 11, 2012 hearing (A-7:3-7). Under these circumstances, it was entirely reasonable for the Town to exercise its discretion under § 70-187(2) of the Code and deny Mr. O'Hare's request to install a metal roof. Assuming, arguendo, that Mr. O'Hare's interpretation of the ordinance is permissible (which it is not), that is, the Town must accept Mr. Lunn's certification at face value and allow Mr. O'Hare to install a metal roof, the Court should still find in favor of the Town because its interpretation is certainly permissible and reasonable. In State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 925 (Fla. 2d DCA 2001), the Florida appellate court examined a United States Supreme Court decision which addressed a court's review of an agency's interpretation of a statute where more than one permissible interpretation existed. The court explained: [I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute . . . The court need not conclude that the agency construction was the only one it permissively could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Sun Gardens Citrus, 780 So. 2d at 925 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984). Under Chevron, 10 once a court determines that the legislature has not directly addressed the issue, the only question is whether the agency's interpretation of its own rule is a reasonable one. Id. "If an agency's interpretation of its own regulation is merely one of several reasonable alternatives, it must stand even though it may not appear as reasonable as some other alternative." Id. The rules of construction used to interpret state statutes are also used to interpret local ordinances. Smith v. State 75 So. 3d 800, 802 (Fla. 5th DCA 2011). Here, the ordinance's key word—"may" justifies the Town's reasonable denial of Mr. O'Hare's request to install a metal roof under the circumstances. The ordinance placed no obligation on the Town one way or the other to approve Mr. O'Hare's request for a metal roof. The Town should ensure that a metal roof is absolutely necessary because metal roofs are generally prohibited by the Code. Indeed, Mr. O'Hare concedes "Gulf Stream's right to be biased against metal roofs" (Am. Pet. at 13). In his amended petition, Mr. O'Hare argues that Woodlev presents facts similar to the instant case (Am. Pet. at 9). However, Woodlev is clearly distinguishable because the rule in Woodley imposed a mandatory obligation on the Department of Health and Rehabilitative Services ("Department") to take an 11 action which it failed to take. By contrast, the instant ordinance imposes no mandatory obligations on the Town. In the case Mr. O'Hare relies upon, Woodley applied for Aid to Families with Dependent Children ("AFDC") benefits. Woodley v. Dept. of Health and Rehab. Servs., 505 So. 2d 676, 677 (Fla. 1st DCA 1987). At an initial interview, Woodley was asked to provide verification that she had applied for workers' compensation benefits by a certain date. Id. Despite multiple efforts to speak with her employer, the employer failed to provide this verification. Id. Woodley contacted the Department eligibility specialist on more than one occasion to inform her that Woodley was unable to obtain verification from her employer. Id. The eligibility specialist told Woodley to keep trying and to request an extension of time if she could not obtain the verification. Id. Woodley did not furnish the employer verification or request an extension of time, and the Department denied her application. Id. A Department rule provided as follows: If documentation or verification is not provided within the time limits allowed, the assistance group must be determined ineligible for assistance. However, if the employed person reports to the eligibility specialist prior to the deadline date that he/she is unable to secure required documentation or verification, a policy 12 exemption request will be submitted to the District Economic Services Program offices for a decision. Id. at 678. The eligibility specialist never requested a policy exception. The Woodlev court explained that the rule "unequivocally requires" the eligibility specialist to request a policy exception under the circumstances presented. Id. Accordingly, it reversed the denial of AFDC benefits. Id. Here, the ordinance provides that certain metal roofs "may" be approved by the Town. It is devoid of mandatory language. Therefore, Woodley is distinguishable, and the Town properly exercised its discretion under the circumstances. Mr. O'Hare also contends that "questions of reliability and/or verification of the Certification were not issues to be considered in the Appeal" (Am. Pet. at 10). This statement ignores the plain meaning of the ordinance granting the Town discretion to approve or not approve a metal roof—an exception to the Town's general prohibition against metal roofs. Because the Town has discretion, it is entirely reasonable for the Town to verify Mr. O'Hare's engineer certification, especially given that the structure has supported a concrete tile roof for forty (40) years (A-6:6, 7, 8). In other words, the Town's reasonable request to verify the certification emanates from the discretion the ordinance grants it. The two go hand 13 in hand. It follows logically that the issue of verifying the certification was discussed at both hearings (A-6:5-9; A-7:2-8). To say that verification of the certification was not an issue before the Board is simply incorrect. The Town accorded procedural due process to Mr. O'Hare at both hearings at which he chose not to appear personally, but to send his counsel only, and not to produce his engineer. The Town observed the essential requirements of the law in exercising its judgment and discretion within the plain, permissive meaning of the ordinance. The Town Attorney questioned Mr. O'Hare's counsel on the record and confirmed the following refusals by Mr. O'Hare: (1) to produce backup information for his engineer's report; (2) to appear personally at the hearings; (3) to produce his engineer at the hearings; and (4) to allow the Town's engineer to inspect the Property, with the Town's engineer and Mr. Lunn selecting a third engineer to inspect the Property and render an opinion for resolution in case of conflict. Therefore, substantial, competent evidence supports the Town's exercise of its discretion in finding that Mr. O'Hare did not fall within the exception in footnote 1 of § 70-187(2) and requiring him to apply for a variance to install a metal roof. This Court should deny certiorari. 14 III. CONCLUSION This Court should deny I&. O'Hare's amended petition for writ of certiorari. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email and United States mail to JOHN E. CARTER, Esquire, 102 N.E. 2nd Street, Suite 179, Boca Raton, Florida 33432-3908 (john@carterlawfirm.us); and to LOUIS ROEDER, Esquire, 7414 Sparkling Lake Road, Orlando, Florida 32819 (lou@louroeder.com), this � day of October, 2012. Jones, Foster, Johnston & Stubbs, P.A. Attorneys for Town of Gulf Stream 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, FL 33402-3475 Telephone: (561)659-3000 Facsimile: (561) 6655,'0--5��3000 By�� :[6�lj� aj Jolm C. Randolph Florida Bar No. 129000 jrandolph@jonesfoster.com Stephanie Eassa Rapp Florida Bar No. 0060319 srapp@jonesfoster.com CERTIFICATE OF FONT Respondent's Response to Amended Petition for Writ of Certiorari has been typed using 14 -point Times New Roman font. By: lh q- Steplianie Eassa Rapp Florida Bar No. 0060319 p 1J=g31471000WpldU cU377.do 15 Document Tab AA City of Delray Beach Revision Request Town of Gulf Stream's Notice of Application for Appeal of Final Action of Planning and Building Administrator 2 Transmission Report Confirmations of Agenda for April 13, 2012 Hearing Sent to Mr. O'Hare and Attorney Roeder Transmission Report Confirmations of Agenda for May 11, 2012 Continued Hearing Sent to Mr. O'Hare and Attorney Roeder 4 i II, IL. 1411 IY:VL VAA AC1:4JILLI ORnRA] nln lm4m &or-Ytt/. VV1 Sw& o<ue o(ulI :J'IR FE yUL.. N rA DS' CITY OF DE1 FfAY BEACH REVISION REQUEST c Date: Permit Number, 11/ — 13 `] I 444 1 i ti`I Address Where Work Is Being Done (to 5-C Include unit or bay numbdr);.`uLL$ It�la 1 — Igs,�i� v:14 JQ tpl APPLICANTNAME: vo-FTCPhone: ( ) 02'0T7—DJ Fax ConlaltPerson: Cell Phone*. ADDED CONSTRUCTION COST FOR THIS CHANGE: (b EY.PLAIN REVISION: NOTE To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the Job site plans, I understand a fee may be charged in accordance with the City of Delray Beach LDR 2.4.21. The fee for a revision is $75.00 fur thefirst sheet, and $1,00 for each additional revised sheet. For ADDED CONSTRUCTION COST, the fee will be based on the Building Permit Fees. r GIGNES OFFICE USE ONLY ROUTING: FEES: OTHER FEES AS APPLICABLE: PAIR PaEL APPROVED BY/DATE: REVISION FEE: Forks: S Public aldge.B --__—_— Schools$ ADDED VALUE PERMIT FEE: Radon S DPR$ PLAN REVIEWER; DATE: TOTAL FEES OUE: $ Rvod 8110 2 561-737-0188 Line 1 10:00:24 a.m. 10-05-2012 216 NOTICE OF APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING & BUILDING ADMINISTRATOR NOTICE IS HEREBY GIVEN that the Town Commission, sitting as the Board of Adjustment of the Town of Gulf Stream, will hold a Public Hearing on Friday. April 13, 2012 at 9:00 A.M. in the Commission Chambers of the Town Hall, 100 Sea Road, Gulf Stream, Florida, at which the following will be considered: An application submitted by Christopher F. O'Hare, owner of property located at 2520 Avenue Au Soleil, legally described as Lot 36 Place Au Soleil Subdivision, Gulf Stream, Florida, for the following: APPEAL OF ADMINISTRATIVE DECISION to deny the installation of a metal roof until such time as a variance to permit such material has been applied for and approved for the dwelling at the location stated herein. The Town Commission, sitting as the Board of Adjustment, shall make a final decision regarding the subject application at the meeting noticed above. The meeting may be adjourned from time to time and place to place as may be necessary to hear all parties and evidence. The complete application materials are on file in the office of the Town Clerk located at 100 Sea Road, Gulf Stream, Florida 33483, and may be reviewed during regular business hours, which generally include non -holiday weekdays from 9:00 A.M. to 4:00 P.M. ALL PARTIES INTERESTED IN THESE MATTERS may appear before the Town Commission of the Town of Gulf Stream at the time and place aforesaid and be heard. SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY THE TOWN COMMISSION, SITTING AS THE BOARD OF ADJUSTMENT, WITH RESPECT TO ANY MATTER CONSIDERED AT THE PUBLIC HEARING, SAID PARTY WILL NEED A RECORD OF THE PROCEEDINGS, AND FOR SUCH PURPOSE, MAY NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 286.0105, F.S.S. Dated: March 30, 2012 TOWN OF GULF STREAM, FLORIDA Rita L. Taylor, Tolkh Clerk Transmission Report Date/time 04-09-2012 12:13:33 p.m. Transmit Header Text Local ID 1 561-737-0188 Local Name 1 Une 1 Thisdocument : Confirmed (reduced sample and details below) Document size; 8.5"04" awCda,d mtavogleda aeaf m paivtwi Pyav®i siata is Adca,v aT geaeTaua oat•/ 'Liar 'tT tioax oe Lariaae aorveSuaXi aqi ear tgwaw" ie r"aa v gveobao UM avnald dM46N. a /ataa A.dpv. c Udo >basl apeu5.yryv rira'trtraf �ugyd Laa ftrC•98f pavgdsed 9[W)llisG b¢ayd 7ypy al^Sal9 dTeq A xNPL wry aa.y,o •m �LVONd G Ta4aanoaoipp�yvFwfNmaqueR YH LM16•t Y7aQ mils P6 xv A [A R6'1 Abbrevlatloru: HS: Host send PL: Polled local MP: Mailbox print CP: Completed HR: Host receive PR: Polled remote RP: Report FA: Fall WS: Waiting send MS: Mallboxsave FF: Fax Forward TU: Terminated by user 9/w ZLOL-50-OL 'UJT9E:LO:OL T5: Terminated by system G3: Group3 EC: Error Correct L au[I 88LO-LE4-19S Transmission Report DateMme 04-09-2012 12:21:45pm. 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Opinion filed: JAN 2 8 2013 Petition for Writ of Certiorari from Town of Gulf Stream Board of Adjustment For Petitioner: John Carter, ESq. 102 NE Second St., Ste. 179 Boca Raton, FL 33432 Louis Roeder, Esq. 7414 Sparkling Lake Rd. Orlando, FL 32819 For Respondent: John C. Randolph, Esq. 505 South Flagler Dr., Ste. 1100 West Palm Beach, FL .3.3401 PER CURIAM. The Petition for Writ of Certiorari is DENIED. SASSER, KELLEY, and BRUNSON, JJ., concur. Tab 13 I TOWN OF GULF STREAM COMMISSION MEETING AND PUBLIC HEARING Gulf Stream, Florida Friday, April 13, 2012 9:30 a.m. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRESENT: Mayor William F. Koch, Jr. Vice Mayor Joan K. Orthwein Commissioner Muriel J. Anderson Commissioner Fred B. Devitt, III Commissioner W. Garrett Dering John Randolph, Esquire, Town Attorney Mr. William H. Thrasher, Town Manager REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: We have the Mayor's proclamation. We are going to make May the 25th, 2012 as National Missing Children's Day and the Mayor has executed same. MR. MAYOR: Item seven, what do we have? THE CLERK: This is a public hearing. Like to ask any of those who intend to speak during this public hearing portion to please stand and be sworn. Swear to tell the truth, the whole truth, and nothing but the truth so help you God? (Unidentified individuals sworn.) THE CLERK: Okay. We have appeal final action of planning and building administrator, an application submitted by Christopher O'Hare, owner of the property located at 2520 Avenue Au Soleil, legally described as Lot 36 Place Au Soleil subdivision, Gulf Stream, Florida, for the following, appeal of administrative decision of a metal roof until such time as a variance to permit such material has been applied for and approved for the dwelling at the location stated herein. Has there been any ex -parte communication on this matter? Let the record show there was none. Who is presenting? REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROEDER: Good morning. My name is Lou Roeder. I'm here representing Mr. O'Hare. I didn't know whether -- I probably need to ask for clarification. I didn't know whether it was better to follow Mr. Thrasher's presentation, are you going to have a presentation or should I present the issue? MR. THRASHER: Mr. Roeder, I have provided the commission with my report. And I think that they are now ready to hear from you. They may have questions of me after you have completed. MR. RANDOLPH: Do you have his report, Mr. Roeder? MR. ROEDER: Yes, I do. Good morning, Mr. Mayor, Commissioners, Mr. Thrasher, Mr. Randolph. Again, I'm here representing Mr. O'Hare in this matter. And we're here to appeal the decision by the town manager, Mr. Thrasher, that a variance is necessary. And I'd like to just follow -- MR. MAYOR: Can you speak in the microphone? MR. ROEDER: I'd like to just -- if you have his report in front of you, I also have a handout to give you. We have our field package, but then we also received Monday, Mr. Thrasher's position on REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this and what his reasoning was for requiring the variance. And we have prepared a response I'd like to just follow through with you in brief and if Rita can hand that out. Now, I'm going to ask you jump around in my presentation, so please bear with me and please, not -- it took me days to get accustomed to the variance code numbers. So if I go through these here, I might be spitting them out rather fast. If you have any problem with them, if there's anything confusing, I was confused for several days, so please stop me and I'll try to clarify. Again, we'd like to go and address Mr. Thrasher's argument for a variance. We break it down in three parts. We have those listed there for you. The first part has to do with him quoting 66.1, his definition of a variance. The definition is that a variance shall mean a deviation from the district requirements of this chapter. We agree. The only problem is, we think he's wrong. We don't think our request for a metal roof deviates from the requirements of the chapter. So now, in order for us to show you this, we'd like to skip to page three very quickly, because, the whole part there in part three on page three, that's very REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 important. That's going to be referred to several times here in my response. Mr. Thrasher states that section 70-99(3) for roof design, slopes and materials, this is located in Article 5. This is for town wide standards in the manual. Article 5 is town wide standards. Article 6 is district standards. That means it's very specific to each district. In that section, there's a prohibition, that states metal roofs are prohibited except unpainted copper when used as a decorative accent or minor structures. Then he goes on to quote section 70-187(2). There again, that's in the district standards, and it has prohibited metal roofs, but there's a footnote. That's very important here. We need to note this. There's a footnote there that says, certain metal roofs determined by the town to be appropriate to the structure of the neighborhood may be approved only in instances of reroofing of existing structures based upon engineer certification that an existing structure will not support a tile roof. Some clarifications in order here. To paraphrase, 187(2) basically states two conditions; for us the client, and one for the town. For us it REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has to be a reroofing situation. Two, we need a certification from an engineer. On the town's part, the town needs to provide us what metal roofs are then appropriate to the structure and the neighborhood. We asked for that back on November 15th. We asked the town, we were told no metal roofs, period. We think it's clear here in 70-187(2) metal roofs are allowed under certain conditions. And we'd like to point out that if the town hasn't figured out what metal roofs there are, we have provided what might be acceptable to you. We have provided in the package to you what we consider to be a sample of what we are proposing for a metal roof. It happens to be by Englert. It's one of the highest quality, highest gauge metal roofs around for residential roofs. Don't think you'll find a better quality, higher priced roof on the market. Now I'd like you to go to part one again and we'll continue. We wondered why -- you can see the disparity there. In one section, Article 5, it says, no metal roofs. In Article 6, it says, metal roofs under certain conditions. We were wondering why somebody would put that in there. Somebody in their infinite wisdom chose to put this in there. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There must have been a reason. We called Marty Minor, the senior project planner with Urban Design Studios, the people who put together your manual several years ago before the city approved it. And we asked them specifically, if we wanted to take part of this section in order to put up a metal roof, would a variance be required? He said, no. In fact, he specifically said, this is your out to a prohibition of a metal roof. Part 2, Mr. Thrasher also quotes section 70-4(c)(4) where it talks about how to use a manual. And in there it states, prohibitive items are design elements that do not maintain the desired character or quality of the zoning district within which they are located, and, that's my emphasis, are not permitted under current codes and regulations. Mr. Thrasher states that no metal roofs on any single-family homes in Gulf Stream, there are none because they do not maintain the desired character and quality of the zoning districts. We can't find anywhere in the manual where it states that. That's an opinion, that's Mr. Thrasher's opinion. That's not necessarily what the manual says. In fact, probably don't even need to address REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, because that section does have, and why I emphasize the word and, not only does it have to not maintain the desired character and quality of the zoning district, but it also must be prohibited by the code. We maintain it's a clear reading of section 70-187(2) that metal roofs are allowed within the code; therefore, they are not a prohibition. Therefore, this section doesn't apply. Even though there might not be any metal roofs on any single family homes, there are no roofs on several multifamily residential condominium buildings. In fact, right here across the street, Polo Ridge, there are metal roofs. Just down the way at 4400 Ocean Boulevard, there's a two-story, two exactly identical buildings, one with the original concrete, white concrete tile and the other one with a metal roof replacement. They're there side by side so you can see how they look and how they seem to be in conformity with one another. And I doubt if any of the single family behind these two properties would consider them to be detrimental to their value. Also, if you look into section 70-4, how to use the manual, we'd like to quote, the manual states REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the styles, which they identify as Gulfstream, Bermuda and Mediterranean Revival are not mandatory, but are indicative of the predominant style within the community. I think that's important. These styles and what's talked about in the manual is not mandatory. There is basically a guide. The real yardstick is in 70-187, excuse me, 70-187(2), when it states in the latter part of it, the metal roof determined by the town to be appropriate to the structure and the neighborhood, which is something we tried to ask the town for back on November 15th. We said, okay, we'd like a metal roof, can you tell us what's appropriate. We were told no metal roofs are allowed. If that's the yardstick of what's appropriate to the neighborhood, we supplied you with some pictures. If you look past page four, you have the styles map of the districts within the town. And we circled there a place Au Soleil. And if you count up the number of homes that are Bermuda, the number that are Spanish -Mediterranean, the number of what's called various other styles, 70 percent are undetermined, there are various other styles. Turn to the next page, you see -- we decided to map out what are the prohibited roofs within the REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 neighborhood. It specifically prohibited shingles in Gulf Stream; specifically prohibited shakes, wood shakes and also flat roofs. Here we have a map showing all the residences in that neighborhood. There's four of them which have shingles, three of them which have shakes and three of them are flat. In fact, on the next page, you can see shingles. We actually took pictures of the homes and put out their lot layouts and you have under shingles, what's classified as A, that's right across the street from Mr. O'Hare's residence. And we also provided you with a map just to show you what his roof pitches are on his house. We don't propose to change those. We just plan to replace it with a metal roof. Then Mr. Thrasher goes on to talk -- this is important. He says that even though the footnote could provide for a metal roof, he admits that it could provide for a metal roof, the variance would be acquired but still is prohibited. Again, our conversation with Mr. Minor, we asked if we wanted to partake in this provision, would a variance be required. His answer was no. This is the man who works for the firm that put together your manual. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Also, Mr. Thrasher took the position that 70-99(3), since it was in the general section applying to the whole town, that it was more restrictive. And historically that seemed to override the other district wide standards in 187(2). Whenever there's a conflict, you always try to look somewhere in the ordinance for a conflict resolution. We found it. It was in the first page of Article 6. It said, where the provisions of this article is -- excuse me, I don't have my glasses. I'm trying to read. Where the provisions of this article conflict with those of Article 5, the provisions of this article shall prevail. I mean, it's not an option there. There may be some historical precedent, but the ordinance is clear, the code is clear. When there's a conflict between 70-99(3) and there's a conflict between 70-187(2), 70-187(2) is going to prevail. We think it's pretty clear a variance is not required. We think we've shown pretty specific and pretty overwhelming evidence of variances that are required. We're respectfully requesting that you overrule Mr. Thrasher's decision of his March 6th REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter and allow us to proceed with a metal roof permit. Again, we provided samples for you, we're bringing forth the highest quality metal roof, highest gauge, white -- not shiny white, white flat -- so it goes with all the other roofs in the neighborhood, which are apparently white roofs. And we respectfully ask you approve my client's request for a metal roof. MR. RANDOLPH: May I -- before we go forward with Mr. Thrasher, may I ask Mr. Roeder a question? MR. ROEDER: Sure. MR. RANDOLPH: In response to your last comment, can you direct me in the code to the provision? I know you said you didn't have your glasses, but you did say it was important. I want to be on the same page with you in regard to the provision that says where there's a conflict that these provisions shall prevail over the conflict. I think that's important. MR. ROEDER: I thought it was in the package that I gave the town in the application. I'm going to see if it is because then each one of you would have your own. It may not be. Yes, it is. MR. RANDOLPH: It's in your package? REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROEDER: I gave everybody three or four pages from Article 6, District Standards, the very first page. MR. RANDOLPH: Did you provide the pages in your packet? MS. ORTHWEIN: This one. MR. RANDOLPH: This one? MR. ROEDER: District Standards, Section 70-186, paragraph B, it says introductory, 70-86 [sic] introductory paragraph into the article. If you look at paragraph B, the very last sentence, however, if the provisions of this article conflict with those in Article 5, the provisions of this article shall prevail. It's black and white. MR. RANDOLPH: Thank you. MR. ROEDER: Any other questions? MR. MAYOR: Bill, do you want to -- MR. THRASHER: I'll make some comments. My report, I hope, will be considered in this. I know that he represents multifamily roofs in our town. And there are multifamily residents or dwellings that have metal roofs, but those were properties that I believe he's referring to were recently annexed in our codes and our town would not speak to that issue. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In regards to the differential between predominant styles and other variants and that there are shake and shingles, other types of materials, the current code was adopted after the construction of those homes. And therefore, we would assume that when they were constructed and the roofs were placed, that it met the current code, but presently, when you come to an entire reroof or a new structure, the present dated code would be the determining factor. I think that, in regards to the differential between area wide standards and predominant styles, there are sections in our code, area wide versus say a Gulf Stream or a Mediterranean, but as the style is determined, it has been always our practice that the homes and the work must be in alignment with, not only the predominant style section of the code, but also area wide. We think that area wide and predominant styles are applicable in the appropriate instances to exclude one or the other. It has not been our practice. I mean, that's not how we have administered the code. The conversations about whether or not the exclusion of the asterisk automatically provides for REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them the opportunity to have a -- the option to immediately apply for a permit, I think is -- and is still listed under the prohibited section of the code, and I do believe that prohibited items do require a variance. We do not have any single-family homes that have metal roofs. I don't know about in Au Soleil, but we do not have metal roofs in the area or any other district town wide where the code prevails excluding the annexed area, there are no -- it might include the annex there, there are no single-family homes with a metal roof. To me that's an indication to me that it's also prohibited. The ability to just apply for a permit for a metal roof because there's an asterisk, there is a slippery slope, and I don't think it's appropriate based on my interpretation of the code. MR. ROEDER: If I might, excuse me, I didn't MIT." MR. THRASHER: I think that there is a conflict in the code. Staff has looked at it. We feel that the two sections of the code, even though they may be in a position in different pages of the code, section 70-99 and 70-187, we believe that there is a definite conflict. And so -- REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MAYOR: The conflict in the code, I think Mr. Randolph -- is there a conflict in the code? MR. RANDOLPH: If I might just ask Bill a question if he's finished with his presentation and that is, how do you respond, Bill, to the provisions set forth in 70-186 which says, however, where the provisions of this article conflict with those in Article 5, and Article 5 is the section that you talk about that creates the prohibition, and that says the provisions of this article shall prevail, how does that fit in with your comment that there's a conflict in the code. MR. THRASHER: I'm not saying I disagree with Mr. Roeder's interpretation of the code. What I am saying is that, the mechanic or mechanics of how this is to be evaluated should not only be an instrument that is exclusively provided by the applicant. There is no voice for the town in that particular decision. It appears obvious to me that the metal roofs are not desired, and it is not something that, on a single-family home, that the residents want to have appearing. A single affidavit or engineering report from the applicant seems inappropriate and there should be an additional voice in that concern. Just REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to say that because they provided this document and because the code says that it would prevail, it should have some -- the town should have some voice in what -- their engineers, their experts might say. This particular home I think was built in 1972. It had installed a concrete roof of some type. I believe that it was reroofed in 1999 with the same type, similar materials. What has transpired from 1999 to date is certainly outside my expertise, but it was able to support a concrete roof up until the permit application was basically withdrawn by the applicant. And we were told by the contractor that the owner no longer wants a concrete roof, but prefers a metal roof. There was no comment about engineering report at that time. MR. RANDOLPH: Mr. Mayor, it appears there's two points being discussed in Bill's answer. His second part of his answer related to whether or not the town has to simply accept the engineer's certification. That is another issue that I think we should discuss separately from this, but the first question before you is whether or not there's a conflict in the code, which requires the applicant to apply for a variance. REIF KING WELCH LEGAL SERVICES www.reifkincjwelch.com (877) 291—DEPO (3376) M, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I think that the section that has been pointed out by Mr. Roeder is very important under 70-186 where it says, the provisions of this article conflict with those in Article 5, the provisions of this article shall prevail. So, you know, Bill's point is that he's looking at section 70-99 which prohibits metal roofs, and they're looking at 70-187(2), which also prohibits metal roofs, but provides an exception in the event they're able to have an engineer's certification show that the structure does not support a tile roof. MR. MAYOR: Do we have a right to have our engineer look at the structure, their roof to see? MR. RANDOLPH: That goes to the second point. I know, and this should come out through testimony. I know the town has requested certain information from the owner. And Rita, probably if you're going to testify, you should be sworn as well. THE CLERK: I swear. MR. RANDOLPH: Do you swear or affirm the testimony you're about to give is the truth, the whole truth and nothing but the truth? THE CLERK: I certainly do. MR. RANDOLPH: Try to keep these two points REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 separate though because the first one is whether there is a conflict in the code to go for a variance. There's an argument that's been made that, one, that this section that they're applying under is not in conflict because it specifically states that that shall prevail on the point of the town clerk. And two, I think they're arguing that this section is an exception to the code because the section that they're traveling under has a prohibition. And it says, there is an exception to the prohibition in the event you can show that the structure won't support a tile roof. The second question that you're on now relates to the engineer's certification and whether or not you're required to accept that engineer's certification on its face or whether you can test the engineer's certification by hiring your own engineer. Rita, would you just testify as to what you've requested of the owner in regard to your being able to check the engineer's certification. THE CLERK: Yes. We gave three different dates and times that we had an engineer that was available and we asked through the attorney for permission to go in and let him do his inspection with the owner's REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approval. And we were told that the owner, in the past, had been unwilling to allow anyone to go in and that was the end of it. MR. ROEDER: If I might, Mr. Thrasher makes a number of points, but I would definitely admit to what Rita's asking. Rita called and asked, one, either for some data or backup information as to what clarified the certifications; is that correct, Rita? Or allowing the town's engineer to come in. Our position was, we're appealing variance. It was after we filed our appeal. Appeal is, like you say, Mr. Randolph, there's two different points going here. One is, is a variance required? We don't think a variance is required. Now, if we start looking to -- does the code say, okay, you provide a certification which then the town now can question? The code is very clear. We have to provide an engineer's certification. That was our position. We have done what the code says and we're not talking about that issue really right now. We're talking about the variance, but if we are going to start talking about it, we have done what the code says, that's what we provided. Now, Mr. Thrasher provides that the town doesn't have a REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position in this. They do under 187-2. 187-2 has two conditions that fall upon the applicant to show we are reroofing. And that's why it was put in here. Some of these homes, when you reroof, you may find that what's underneath there is not what you thought it would be. You might recall, Broward County recently adopted a large change to their building code that requires all multifamily residential buildings before a certain year be inspected, because they're concerned about what happens to the buildings over time. There's decay in the material, weakening, damage because of hurricanes. This building is 35 years old. When you're talking about 40 years, we're getting close to that limit, but Mr. Thrasher said the town doesn't have a position. Our two positions, our two requirements, reroofing, which we are, you have the barrel tile and putting on a different roof. Number two, we provided an engineer certification. The town's position is, tell us what's appropriate, what metal roof is appropriate. Let me say here, the client wanted me to be sure to say this, we are not stuck on a metal roof. Mr. Thrasher says, the client wants a metal roof. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The client wants what's good for the home. The metal roof happens to be the lightest roof you can put on. First it's metal, then shingle, then shake. Then you go up to the barrel tile and concrete tile. If you take the weight of a concrete tile roof, in addition to what goes on a metal roof on a home, on this home, based on the square footage of that roof, it would be like putting 11 medium sized sedans on that roof. That's the weight that a concrete tile roof has. People don't quite understand that there's that much difference and after 35 years, in an engineer's, opinion can't take it. The client is not set on a metal roof. He just as soon have shingle or shake, but shingle and shake are absolutely prohibited. There's no little footnote provision allowing for them to be put in the section standards, the district standards within the code. In the overall code, they're absolute. The only one that has an allowance for a metal roof or for any different roof is the metal roof. So that's why he's applied for it. If you grant him a shingle or a shake, he'd take it in a heartbeat. He's out to put a roof on there that would absolutely fit and be allowed within the weight REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 restrictions and not be detrimental to he and his family. MR. RANDOLPH: It's my understanding, therefore, that your client's position is that the engineer's certification must be taken on its face because of the way the ordinance is written and the town must accept your engineer's certification. MR. ROEDER: Unless you can show cause why you wouldn't. If that's the case, then the code should say, engineer's certification to be verified by the town or engineer's certification with backup information. An engineer takes a lot of responsibility to provide that. MR. RANDOLPH: I understand, but your engineer's certification says, to the best of my knowledge and belief and based upon my professional opinion. MR. ROEDER: Exactly. MS. ORTHWEIN: I would think we could question it. Forty years of having a concrete roof on the home and all of a sudden it can't hold concrete. I think we have a right to question why your engineer says it can't hold it any more. MS. ANDERSON: It's questionable how all of a sudden it couldn't hold it. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROEDER: You mean as far as a reroofing in 1999. MS. ANDERSON: Yeah. MR. ROEDER: Maybe they didn't have an engineer to take a look at it. So what happened, my client stripped all the Sheetrock -- he has a permit for re-Sheetrocking, there's a lot that was discovered in that process. I don't know. I'm not acquainted with it. The idea is, he stripped it all off, talked to the engineer and asked, can this hold concrete tile roof? And the answer was no. MR. MAYOR: Would your client object to us having an engineer coming in? MR. ROEDER: He has so far, and that's because -- MR. MAYOR: So far, but under the circumstance, we're trying to resolve this thing. MR. ROEDER: I think again, as Mr. Randolph says, there's two different issues. Right now we're addressing the variance issue. Is there a requirement for variance? We don't think there is. And if there's not, we're -- MS. ORTHWEIN: I believe under the circumstance there's a variance required, because of so much REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question with your engineer's report. MR. ROEDER: I guess that's the question for Mr. Randolph, the town can create a variance because the town questions an engineer's report? MR. RANDOLPH: I think the question -- yeah. I think they can ask for a variance if it is not proven that your engineer's certification is correct. Because if you don't meet that standard, which is set forth in the exception, then I think even you would agree that you would need a variance from the prohibition. So I think the burden is on you to show that you meet the exception. And I believe, quite frankly, that the town does not have to take the -- with the number of engineers that you've heard testify in court and the number of different opinions that you've heard attorneys have from each other, I think it's reasonable for the town to be able to test that engineer's certification in order to verify it. I just think that's reasonable under the circumstances, and I don't think it's a reasonable interpretation of the code to mandate that the town accept an engineer's certification without it having the opportunity to test it. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROEDER: So I hear two different things here. Mr. Randolph saying that the town has a right to question the engineer, but then I hear the commissioner saying it's a -- variance is required. Either a variance is or is not required. The separate question is, whether the town then wants to question the engineer. Correct me if I'm wrong, but that's -- MR. RANDOLPH: I think they are two different -- two separate issues. The way I'm trying to tie that in as to what the commissioner said is that, I think she's saying that she thinks the variance is necessary in the event you haven't met the exception. And I think -- there's an argument that you haven't met the exception if you don't allow the town to test or verify your engineer's certification, because then you won't follow it. If we test it and the final determination is that the roof can hold the structure can hold a tile roof, then you'd have to get a variance from the prohibition. But the first question really is, and I think, you know, I think we have to resolve the second question before a final determination can be made as to whether you need a variance from the REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 27 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prohibition. MR. ROEDER: I think we have one item on the agenda that needs to be addressed in your challenge the requirement for a variance, then if the town wants to take the position, well, okay, variances are required, but we don't think you've met the conditions of this exception, then that's another story. But to sit there and create a variance, because you don't think we -- don't think we've met the conditions of the allowance seems to be adverse to the code. MS. ORTHWEIN: I don't think you've met the conditions and I agree -- the conditions. MR. RANDOLPH: Which ones? MS. ORTHWEIN: The conditions of the variance report. I don't think we can go on just this engineering report because the house has had a roof for 40 years. I don't think we would be doing our due diligence if we didn't question it. MR. DEVITT: I served with a group of citizens who drafted the design manual. So Urban Design, it was made up of a group of citizens from the community. One of the top items on our list of REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) W- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things to address were metal roofs, so I'm very familiar with this provision. I happen to also own at the time a house in the area that had a cedar shake roof. And so, me and several other people had that same condition. We're worried that if we had to replace our roof, it would not support the weight of a concrete tile roof. That exception was built in for homes that had that particular problem. You've given us a list of pictures and addresses and other places that have roofs that have that condition that are pretty clear would not support the weight of a white tile roof. That's why the exception is written into the manual. From what I've heard today, I think you've got to allow us to question your one sentence line from your engineer that says it won't work based on the history that there's been a white tile roof on that house for 40 years. MR. MAYOR: My feeling that the council wants more information, wants the right to have his engineer move forth, questions about it and we're getting the answers for ourselves, is that -- MR. RANDOLPH: Let me ask a question first, from a procedural standpoint. This hearing today, of course, relates to an REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appeal between the applicant and the commission. But I noted a lot of hands go up from the public, and I wondered if at some time, Mr. Mayor, you want to call on people from the public. Keeping in mind that the issue is not whether you as a neighbor like a metal roof or not. The argument here is whether our code requires a variance and whether or not we have the right to go beyond the engineer's certification. But these folks have shown up in response to a notice, so you might allow them the opportunity to speak. MS. ORTHWEIN: Is there anyone that wants to speak about this? MR. MAYOR: Some of them are here for something else. MS. ORTHWEIN: Do you have any comments to make about this? MR. RANDOLPH: I wanted that on the record. MR. SLOAN: I'm Dana Sloan, architect with Sloan and Sloan Architects in Delray Beach. I can make one comment with regards to engineer's reports. Over time the assigned values to the strength of wood has gone down through no real change in the wood, because of safety factors being changed, due to increase paranoia, maybe from lawsuits, so you REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 30 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can get a variety of interpretations from engineers. And the ones that are most paranoid or assign the highest safety factor may give a much lower strength to the roof, whereas, in reality and a rational analysis it's plenty strong, so there is a lot of variation in engineering. MS. ORTHWEIN: Thank you. I agree with that. MR. ROEDER: Following up on that, the code since 1999 has been changed quite a bit because of the hurricanes that have come through. The Miami code has a lot of higher requirements, higher standards have to be met by engineers. So one may be appropriate, number two may be the increased standards given the new code. MR. MAYOR: We've been on this, Counsel. MR. DERING: Would your client refuse to allow the town to have an another engineer look at it? MR. ROEDER: He has to date because there has been a number of different issues. MR. DERING: As of right now? MR. ROEDER: As of right now. MR. DERING: Right now, will he not allow that? MR. ROEDER: As of now he has not. MR. DERING: He will not. MR. ROEDER: He has not. I speak from history. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 3] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He'd like a decision on the variance. And then if it goes beyond that, then there's a question on the engineer. MS. ORTHWEIN: How shall we proceed with this because I think we should move on? MR. RANDOLPH: I think there's two alternatives. If Mr. Roeder is saying his client will not allow the town to go beyond the face of the engineer's report, I think you should simply make a decision today as to whether or not he needs a variance. Alternatively, you could defer this item and give the applicant an opportunity to indicate whether or not they will allow the town to test the engineer's report with the report of another engineer. At that time, you'd be able to, in the event this engineer -- another engineer were to verify that your engineer's report is correct, then this could come back. And I think the answer is going to be easy, because based upon what you've pointed out in regard to the provision that says that, in the event there's a conflict, that the provisions of Chapter 70 shall prevail, and you can show that you've met the requirements, I think my advice to REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the commission would be that there's not a conflict and that you don't need a variance. But I think you have to show first -- if you don't show that you've met the requirement of the engineer that the roof can't support a tile roof, then the direct prohibition applies and then you would clearly need a variance. If, however, you can show that you've met that requirement, then I think the weight of the evidence, as I see it, shows that there's not a conflict in the ordinance, that the ordinance is very specific and says that this chapter that you're traveling under prevails. But I don't think they're obligated to make that determination until they know that your client is willing to allow them to test your engineer's report. So those are the two alternatives that I see are available to you. MR. DEVITT: I agree with that interpretation. MS. ORTHWEIN: Now, it's up to you whether you're going to allow us to come in and look at the house. MR. MAYOR: We have to make a motion. Let's move on. MR. ROEDER: I'd like to make one more REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement here. The issue you have before you is whether or not a variance is required. I hear one opinion from the attorney that it's not, and then beyond that I hear it's whether or not we allow you to put on a metal roof, we're going to want to see, have our engineer take a look and verify that what your engineer says is correct. But the two are being mixed. The third alternative is to make a decision, is there a variance required; if not, then say but, instead of approving what you have, we're going to want to see X and Y, then have I something to take back to my client. Otherwise it's, the town saying, well, for these reasons -- which we're stepping ahead of ourselves, for these reasons we're going to say a variance is required. You're not making a decision. MR. RANDOLPH: That's a viable third alternative, as long as you agree that in the event you don't meet the requirement of the roof being able to substantiate the tile, that a variance is needed, because then the prohibition does apply. MR. ROEDER: That seems reasonable. MR. RANDOLPH: You and I are saying the same thing. He doesn't want to come back -- he doesn't want to go to his client and say, look, they want REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you to -- they want to test your engineer's report without knowing that you're not going to require him to come in, if he goes that extra step and prove that a variance is needed. MR. ROEDER: Exactly, it's one step at a time. We don't want the goal post to keep shifting, but we have these concerns. We want to see this. Then my client has a decision to make. MS. ORTHWEIN: I think under our rule, a variance is required right now. MR. ROEDER: That's -- MS. ORTHWEIN: That's what I believe right now. MR. ROEDER: I respectfully disagree. MR. DEVITT: If you allow us to have an engineer look at your engineer report, he's going to come back and with one of two things. He can either substantiate and verify your engineer's report, in which case, this will be a done deal. If he says, I don't agree with it, then you'll either accept that and move on, or you'll want to come in a variance. Go back to your client today and if your client says, absolutely not, do not let them in the house -- MR. ROEDER: So it's a deferring on the variance today, but a request to review our REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 engineer's report? Is that what I hear? MR. RANDOLPH: I think you have to find that out from whatever motion you hear today. That sounds like what Fred's saying. MR. MAYOR: We're ready for a motion. MR. THRASHER: I'm concerned we won't have resolution on two engineering reports, should there be some thought of the two engineering firms going and agreeing to a third. MR. RANDOLPH: I think we can handle that administratively. If, for instance, there's a conflict in the two engineer reports, I think the two engineers could select another engineer. MS. ANDERSON: Oh, boy. MR. RANDOLPH: Let's cross that bridge. MR. MAYOR: Do we have a motion? MR. DERING: I make a motion to defer this until we have a right to have an engineer inspect it, or stipulate if those two disagree that jointly they provide a third one. And depending on the results of that, and I presume you can get that done in the next month, you know, if we come back and it ought to be pretty clear then. MS. ORTHWEIN: I second that. MR. RANDOLPH: So we know, that's deferral then REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to a time certain, so we won't be required to give notice again, we're deferring to a date certain which will be what date, Rita? THE CLERK: That will be May the 11th at 9 a.m. MR. RANDOLPH: Unless -- MR. DERING: Do we want to do that or tell him -- we have an obligation do it quickly, but do we get an engineer? If your client will not let another engineer in -- MR. ROEDER: I have a pretty good idea what you're going to do on May 11th. MR. RANDOLPH: If he doesn't let an engineer -- I think you should set a time certain so they don't have to send notice out again. If it gets complicated and it can't be done by then, you come back in session and either defer it because of the engineer's report hasn't been done or if the engineer's report is refused, then you'll know what action to take, you can come back. MR. MAYOR: Do I hear a second? MS. ORTHWEIN: I second. MR. MAYOR: Roll call, please. THE CLERK: Commissioner Orthwein? MS. ORTHWEIN: Aye. THE CLERK: Commissioner Devitt? REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) 37 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DEVITT: Aye. THE CLERK: Commissioner Anderson? MS. ANDERSON: Aye. THE CLERK: Commissioner Dering? MR. DERING: Aye. THE CLERK: Mayor Koch? MR. MAYOR: Aye. MR. ROEDER: Just so I'm clear, if I could ask Rita Monday or something, type me a little one paragraph exactly what the motion says, because it's confusing. I think I understand, but I want be able to relay it to my client correctly. Thank you very much for your time. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) M- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE THE STATE OF FLORIDA, COUNTY OF PALM BEACH I, Lee M. Walker, Florida Professional Reporter, do hereby certify that the foregoing proceedings were held as hereinabove set out; that I was authorized to and did report in machine shorthand the proceedings in said public meeting; and that the foregoing pages comprise a true and correct transcription of my stenotype notes of the proceedings. Dated this 1st day of May 2012. R��ILeg� i o LEE M. WALKER, FPR My Commission Expires 11/30/15 Commission #EE142444 REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 39 1 A ability 16:14 able 18:10 19:10 20:2126:19 32:17 34:20 38:11 absolute 23:19 absolutely 23:16 23:25 35:22 accent6:11 accept 18:20 20:16 24:7 26:24 35:20 acceptable 7:12 accustomed 5:7 acquainted 25:8 acquired 11:19 action 3:13 37:19 addition 23:6 additional 17:25 address 5:13 8:25 29:1 addressed 28:3 addresses 29:10 addressing 25:21 administered 15:23 administrative 3:19 administrative... 36:11 administrator 3:14 admit 21:5 admits 11:18 adopted 15:4 22:8 adverse 28:11 advice 32:25 affidavit 17:23 affirm 19:21 agenda 28:3 ago 8:4 agree 5:20 26:10 28:14 31:7 33:19 34:18 35:19 agreeing 36:9 ahead 34:14 alignment 15:16 allow 13:121:2 27:16 29:15 30:1131:16,22 32:8,14 33:16 33:2134:4 35:14 allowance 23:20 28:11 allowed 7:8 9:7 10:14 23:25 allowing 21:9 23:17 alternative 34:9 34:18 Alternatively 32:12 alternatives 32:7 33:17 analysis 31:5 Anderson 2:5 24:24 25:3 36:14 38:2,3 annex 16:11 annexed 14:24 16:10 answer 11:23 18:18,19 25:12 32:20 answers 29:22 apparently 13:7 appeal 3:13,19 4:17 21:11,11 30:1 appealing 21:10 appearing 17:23 appears 17:20 18:17 applicable 15:20 applicant 17:18 17:2418:13,24 22:3 30:1 32:13 application 3:15 13:22 18:12 applied 3:21 23:22 applies 33:6 apply 9:9 16:2 16:14 18:25 34:21 applying 12:3 20:4 appropriate 6:18 7:410:10 10:13,15 15:20 16:16 22:22,22 31:13 approval 21:1 approve 13:8 approved 3:21 6:19 8:5 approving 34:11 April 1:22 architect 30:19 Architects 30:20 area 15:12,13,18 15:19 16:8,10 29:4 arguing 20:8 argument 5:13 20:3 27:15 30:7 article 6:5,6,7 7:21,22 12:10 12:11,13,14,15 14:2,10,12,13 14:1417:7,8,8 17:1019:3,4,5 asked 7:5,6 8:5 11:22 20:24 21:6 25:11 asking 21:6 assign 31:2 assigned 30:22 assume 15:6 asterisk 15:25 16:15 attorney 2:8 20:24 34:3 attorneys 26:17 An 3:16,17 10:19 16:7 authorized 39:9 automatically 15:25 available 20:23 33:18 Avenue 3:16 Aye 37:24 38:1,3 38:5,7 a.m 1:22 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simply 18:20 32:9 single 9:11,21 17:23 single-family 8:19 16:6,11 17:22 sit 28:9 situation 7:1 sized 23:8 skip 5:24 slippery 16:16 Sloan 30:19,19 30:20,20 slope 16:16 slopes 6:4 Soleil 3:16,17 10:19 16:7 somebody 7:24 7:24 soon 23:14 sounds 36:4 Spanish -Medi... 10:21 speak 3:8 4:21 14:24 30:11,13 31:25 specific 6:8 12:22 33:12 specifically 8:6,9 11:1,2 20:5 spitting 5:9 square 23:7 Staff 16:21 REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) stand 3:9 standard 26:8 standards 6:5,6 6:7,14 12:5 14:2,8 15:12 23:18,18 31:12 31:14 standpoint 29:24 start21:15,23 STATE 39:3 stated 3:22 statement 34:1 states 6:3,10,24 8:13,18,22 9:25 10:8 20:6 stenotype 39:12 step 35:3,5 stepping 34:14 stipulate 36:19 stop 5:12 story 28:8 Stream 1:8,21 3:18 8:19 11:2 15:14 street 9:13 11:11 strength 30:22 31:4 stripped 25:6,10 strong 31:5 structure 6:19 6:22 7:5 10:10 15:9 19:11,14 20:13 27:20 structures 6:12 6:21 stuck 22:24 Studios 8:3 style 10:3 15:14 15:17 styles 10:1,5,17 10:22,23 15:2 15:12,19 subdivision 3:18 submitted 3:15 substantiate 34:20 35:17 sudden 24:21,25 supplied 10:16 support 6:22 18:11 19:11 20:13 29:7,12 33:5 sure 13:12 22:24 swear 3:10 19:20,21 sworn 3:9,12 19:19 T take 8:6 23:5,13 23:23 25:5 26:14 28:5 34:6,12 37:19 taken 24:5 takes 24:12 talk 11:16 17:9 talked 10:5 25:10 talking 21:20,22 21:23 22:15 talks 8:12 tell 3:10 10:13 22:2137:6 test 20:17 26:19 26:25 27:17,19 32:14 33:16 35:1 testify 19:19 20:19 26:16 testimony 19:16 19:22 Thank 14:15 31:7 38:12 thing 25:18 34:24 things 27:129:1 35:16 think 4:9 5:20 5:217:7,17 10:4 12:21,22 13:2015:11,19 16:2,16,20 17:1 18:5,21 19:120:8 21:14 24:19,22 25:19,22 26:5 26:6,9,12,18 26:21,22 27:9 27:12,15,23,23 28:2,6,10,10 28:13,17,20 29:14 32:5,6,9 32:20,25 33:3 33:9,14 35:9 36:2,10,12 37:13 38:11 thinks 27:12 third 34:8,17 36:9,20 thought 13:21 22:6 36:8 Thrasher 2:9 4:8,15,18 6:3 8:11,18 11:15 12:1 13:11 14:18 16:20 17:13 21:4,25 22:16,25 36:6 Thrasher's 4:5 4:25 5:13 8:23 12:25 three 5:15,24,25 5:25 11:6,7 14:120:22 tie 27:11 file 6:22 9:17 19:1120:13 22:18 23:4,4,5 23:10 25:11 27:20 29:7,12 29:17 33:5 34:20 time 3:20 18:16 22:12 29:3 30:3,22 32:17 35:5 37:1,13 38:13 times 6:2 20:23 today 29:14,25 32:10 35:21,25 36:3 told 7:7 10:14 18:13 21:1 top 28:25 town 1:8 2:8,9 4:18 6:5,6,18 6:25 7:3,6,10 10:9,11,18 12:3 13:22 14:20,24 16:9 17:18 18:3,20 19:17 20:7 21:17,25 22:16 24:7,1126:3,4 26:14,18,23 27:2,6,17 28:4 31:17 32:8,14 34:13 town's 7:3 21:9 22:21 transcription 39:12 transpired 18:9 traveling 20:10 33:13 tried 10:11 true 39:12 truth 3:10,10,11 19:22,23,23 try 5:12 12:7 19:25 trying 12:12 25:18 27:11 Turn 10:24 two 6:24 7:1 9:16,21 16:22 18:18 19:25 20:8 21:12 22:2,17,17,20 25:20 27:1,9 27:10 31:13 32:6 33:17 34:8 35:16 36:7,8,12,13 36:19 two-story 9:15 type 18:6,8 38:9 types 15:3 underneath 22:5 understand 23:1124:14 38:11 understanding 24:3 undetermined 10:23 Unidentified 3:12 unpainted 6:10 unwilling 21:2 Urban 8:3 28:23 use 8:12 9:24 value 9:23 values 30:22 variance 3:20 4:19 5:2,8,14 5:17,18 8:8 11:19,23 12:21 16:5 18:25 20:3 21:10,13 21:14,22 25:21 25:22,25 26:3 26:6,10 27:4,5 27:13,21,25 28:4,9,16 30:8 32:1,1133:2,7 34:2,10,16,20 35:4,10,21,25 variances 12:23 28:5 variants 15:2 variation 31:6 variety 31:1 various 10:22,23 verified 24:10 verify 26:20 27:17 32:18 34:6 35:17 versus 15:13 viable 34:17 REIE KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) I Vice 2:4 voice 17:18,25 18:3 W 2:7 Walker 39:7,19 want 13:16 14:17 17:22 30:3 34:5,11 34:24,25,25 35:1,6,7,20 37:6 38:11 wanted 8:6 11:22 22:23 30:18 wants 18:14 22:25 23:1 27:6 28:5 29:19,20 30:12 way 9:15 24:6 27:10 weakening 22:12 weight 23:5,9,25 29:7,12 33:9 we'll 7:20 we're 4:17 12:24 13:3 21:10,20 21:22 22:15 25:18,20,23 29:5,2134:5 34:11,14,15 36:5 37:2 we've 12:22 28:10 31:15 white 9:17 13:5 13:5,5,7 14:14 29:12,17 wide 6:5,6 12:5 15:12,13,18,19 16:9 William 2:3,9 willing 33:16 wisdom 7:25 withdrawn 18:12 wondered 7:20 30:3 wondering 7:23 wood 11:2 30:23 30:24 word 9:2 work 15:16 29:16 works 11:24 worried 29:6 wouldn't 24:9 written 24:6 29:13 wrong 5:20 27:7 X X 34:12 Y Y 34:12 yardstick 10:7 10:15 yeah 25:3 26:5 year22:10 years 8:4 22:14 22:15 23:12 24:20 28:19 29:18 zoning 8:15,21 9:4 1st 39:14 1123:8 11th 37:4,11 11/30/15 39:19 131:22 15th 7:6 10:12 187(2) 6:24 12:6 187-2 22:1,2 197218:5 199918:7,9 25:2 31:9 2 28:11 20121:22 3:3 39:14 25th 3:3 2520 3:16 35 22:14 23:12 36 3:17 4022:15 28:19 29:18 4400 9:15 5 5 6:5,6 7:21 12:14 14:13 17:8,8 19:4 66:7 7:22 12:10 14:2 6th 12:25 66.15:17 7010:22 32:24 70-186 14:9 17:6 19:3 70-18710:7 16:24 70-187(2)6:13 7:8 9:7 10:8 12:19,19 19:8 70-4 9:24 70-4(c)(4) 8:12 70-86 14:10 70-9916:24 19:7 70-99(3)6:3 12:2,18 9 37:4 9:301:22 REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291—DEPO (3376) Tab 14 Response to Mr. Thrasher's Required Variance April 13, 2012 ARGUMENT AGAINST PART Sec. 66-1 Definitions "Variance shall mean a deviation from the district requirements of this chapter...." 1. We agree with Mr. Thrasher as to the stated definition -- that a variance is a deviation from the code; however the metal roof Mr. O'Hare is proposing is allowed under the Town Code, and is not a deviation from it. Please go to discussion of sec. 70-187(1) under Part /it, Clarification. 2. Since a reading of Sec. 70-187(2) clearly indicates that a metal roof is allowed under certain circumstances, circumstances that my client has met, I thought it prudent to call one of those who, in their infinite wisdom, found it appropriate to include this provision within the Town's code to see if they would classify this as a variance. So, I called Marty Minor, Senior Project Planner with Urban Design Studio, the firm that drafted the Gulf Stream Design Manual years ago for the Commission's approval. When I asked Mr. Minor if we should elect to proceed with a metal roof as allowed under Sec. 70-187(2), would a variance be necessary? He replied, "NO." He said Sec. 70-187(2) was our "out to a prohibition of metal roofs." PART II Sec. 70-4(c)(4) How to use the manual a. Prohibited items are design elements that do not maintain the desired character or quality of the zoning district within which they are located and [my emphasis] are not permitted under current codes or regulations. 1. Mr. Thrasher says that "There are no metal roofs on any single family homes in Gulf Stream as they do not maintain the desired character or quality of any zoning districts." However, I cannot find this specific finding in the code. That's because it's not in the code. It's simply Mr. Thrasher's opinion. And to take the position that something cannot be approved because it doesn't yet exist in the Town is, we think, indefensible. Page 1 of 4 2. However, it probably isn't necessary to make that kind of decision, because Mr. Thrasher also fails to note that the section of the code he is quoting here, Sec. 70-4(c)(4), requires that a prohibited design element not maintain the character of the zoning district AND not be permitted under the current code. Since metal roofs are permitted under the Town code, we feel that Mr. Thrasher is wrong and Sec. 70-4(c)4 would NOT apply to my client's request. 3. Assuming for a moment we accept Mr. Thrasher's assertion that there are no metal roofs on single family residences within Gulf Stream (even though we believe there might be some in the recently annexed areas), there are metal roofs on several multi -family residential buildings, which co -exist adjacent to single family residential — with no apparent negative impacts. One needs only look at 3960 N. Ocean Blvd (or Polo Ridge) right across the street from the Town Hall and next to several single family residences along County Road. And then there's 4400 N. Ocean Blvd, two, identical 2 - story residential condo buildings, one with it's original white concrete tile mansard roof, the other with a white metal mansard roof replacement. Have the single family homes behind or next to either of these buildings been negatively impacted? We don't think so. 4. It is appropriate to note here that also in Sec. 70-4 How to use this manual, when discussing styles, the manual states that "[Gulf Stream Bermuda and Mediterranean Revival) styles are not mandatory but are indicative of the predominant styles within the community." So, there seems to be a conflict here. Does one's design elements have to maintain the character of the zoning district as Mr. Thrasher suggests, less they be declared "prohibited?" Or does one look to the "predominant style in one's neighborhood as another part of Sec. 70-4 suggests? But again looking to the wording of Sec. 70-187(2) for guidance, the yardstick seems to be "a metal roof determined by the Town to be appropriate to the structure and to the neighborhood" — which is something my client's roofer originally asked the Town to provide back on Nov. 15th; he was told by Mr. Thrasher, "No metal roofs, period," which clearly is not what the code says, and is misleading in its omission of the clearly available option. Not that it's my client's obligation according to the code, but we can provide the Commission some information about the Place Au Soleil, the neighborhood in which my client's house is located. In Place Au Soleil some 70% of the lou are labeled by the Town code as "other/various styles." You should note that even the great majority of homes in all of Gulf Stream are classified as "other/various styles." Please see map provided. As far as prohibited roof styles within my client's neighborhood, there are 3 homes that have wood shakes, 3 have flat roofs, and 4 with asphalt shingles, including one home with a shingle roof right across the street from my client (please see attached) — again, all are prohibited roof types with no conditional allowances. So, how can one say a metal roof, a roof type which is allowed under Sec. 70- 187(2), would "not maintain the desired character or quality of the zoning district within which [my client's house is] located?" Page 2 of 4 5. Since we're on this subject, you might also want to note that in Sec. 70-3 Purpose [of the Design Manual] it states that "the design standards in this chapter (Chapter 70) are, by specific intent, illustrative rather than prescriptive" (i.e., not relating to the imposition or enforcement of a rule)." PART III Sec. 70-99 (3) Roof design, slope and materials "Prohibited. Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures.)" Section 70-187(2) Roofs "Prohibited. Metal roofs' 1. Certain metal roofs determined by the town to be appropriate to the structure and the neighborhood may be approved only in instances of re -roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof." CLARIFICATION: To paraphrase here, it's very clear to an unbiased reading of the code, that 70-187(2) states what may be done -- in other words, what is permitted. And there are conditions to what is permitted -- 2 on behalf of my client, 1 on behalf of the Town. As far as my client is concerned, we must (a) be an instance of re -roofing, which we are, AND (b) we must provide the Town with an engineer's certification that the existing structure will not support a tile roof, which we have also done. Now, according to the code, it is incumbent upon the Town to let us know what the "certain metal roofs" are that they will approve. If the Town takes the position that there are no appropriate metal roofs, then the code would be misleading and there should, instead, be an outright prohibition with no footnote -- which we think would be contrary to the intent and the letter of the code. If the Town hasn't yet figured out what metal roofs are appropriate, then we've provided you, the ultimate decision making body, the Town Commission sitting as the Board of Adjustment, some information on the metal roof my client is proposing. It is the highest quality and highest gauge of metal roof made for residential use; and it is white, so as to match the other white roofs in the neighborhood (which, by the way, are not all white). Please go back to Part 1(2). Page 3 of 4 MR. THRASHER'S POSITION: Mr. Thrasher makes a couple of points regarding 70-99(3) and 70-187(2): 1. First, Mr. Thrasher says that "even though the footnote could provide for a metal roof, a variance would be required as it is still listed as prohibited." THIS SIMPLY IS NOTTRUE. Metal roofs are a conditional allowance under Sec. 70-187(2). Again, I called Marty Minor, Senior Project Planner with Urban Design Studios. And when I asked Mr. Minor, should Mr. O'Hare elect to proceed with a metal roof as allowed under Sec. 70-187(2), would a variance be necessary, he replied, "NO." 2. Next, Mr. Thrasher says that since the mention of metal roofs is in two sections, and since the two sections conflict, the most restrictive section, Sec. 70-99(3), by some historical convention, must prevail. a. If there is a conflict, one should go to the code for guidance. If one looks in Article VI, at the last sentence of 70-186(b), you will note: "...where the provisions of this article [where Sec. 70-187(2) is located] conflict with those of article V [where Sec. 70-99(3) is located], the provisions of this article shall prevail." In other words, Sec. 70-187(2) supersedes Sec. 70-99(3). b. Mr. Thrasher in his report admits that there is a conflict between Sec. 70-99(3) and Sec. 70- 187(2). So, if Sec. 70-99(3) prohibits metal roofs, and if there is a conflict with 70-187(2) as Mr. Thrasher admits, then 70-187(2) must therefore allow metal roofs; because if Sec. 70-99(3) and Sec. 70-187(2) both prohibit metal roofs, then there is no conflict. So, if Sec. 70-187(2) allows metal roofs, which it does, and if a variance, by the definition provided by Mr. Thrasher, is a deviation from the code, then a variance is NOT required. The evidence supporting our Appeal is specific and overwhelming. As such, we think following Commission actions are warranted: 1. Over -turn the Town Manager's decision in his March 6, 2012 letter requiring my client to submitfor a variance in order to install a metal roof; AND 2a. Approve my clients application for a white metal roof- OR 2b. As required by the Town code, tell my client what type of metal roof you would find appropriate. -- THANK YOU -- Page 4 of 4 Place Au Soleil Neighborhood STYLES: Gulf Stream Bermuda . 22 homes 24% Spanish/Mediterranean Revival: 5 homes 6% Other/Various: 63 homes 70% Total 90 homes ARCHI' TF^T"^ STYLEA Supp. No. 1 CD70:82 L t .xME Asnu oittn mmvrou smr OOSSMES Fig ._. o y r Sy d Rotr Nsy.. conory, Y.ilk% f' •Q1J H }� tv O'Hare �t r Pk f., •. Residence Shim Shake r W- TF�I' �11171? 9 00 AMMWM Place Au Soleil Neighborhood Asphalt shingles, cont'd D. 935 Indigo Point 0 .......... WWIP Tab 15 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA BOARD OF ADJUSTMENT 100 SEA ROAD GULF STREAM, FLORIDA 33483 (561) 276-5116 BOARD OF ADJUSTMENT MEETING of May 11, 2012 9:00 a.m. TOWN HALL 100 Sea Road Gulf Stream, Florida 33483 APPEARANCES: WILLIAM F. KOCH, JR., Mayor JOAN K. ORTHWEIN, Vice Mayor W. GARRETT DERING, Commissioner MURIEL J. ANDERSON, Commissioner FRED B. DEVITT, II, Commissioner WILLIAM H. THRASHER, Town Manager RITA TAYLOR, Town Clerk JOHN RANDOLPH, Town Attorney REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had:) (Thereupon, the following proceedings were MS. TAYLOR: Commissioner Orthwein? VICE MAYOR ORTHWEIN: Here. MS. TAYLOR: Commissioner Devitt? MR. DEVITT: Here. MS. TAYLOR: Commissioner Anderson? MS. ANDERSON: Here. MS. TAYLOR: Commissioner Dering? MR. DERING: Here. MS. TAYLOR: Mayor Koch? MAYOR KOCH: Here. MS. TAYLOR: Let the Record show that the Town Manager and Attorney Randolph are also present. MAYOR KOCH: You have the minutes. Any additions, corrections of anybody? MS. ANDERSON: I would like to move they are approved from the meeting of April 15th. MAYOR KOCH: So moved. VICE MAYOR ORTHWEIN: Second. MAYOR KOCH: All right. Roll call. MS. TAYLOR: Commissioner Orthwein? VICE MAYOR ORTHWEIN: Aye. MS. TAYLOR: Commissioner Devitt? REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DEVITT: Aye. MS. TAYLOR: Commissioner Anderson? MS. ANDERSON: Aye. MS. TAYLOR: Commissioner Dering? MR. DERING: Yes. MS. TAYLOR: Mayor Koch? MAYOR KOCH: Aye. Thank you. MR. RANDOLPH: In regards to the matter of Christopher O'Hare, the owner of the property located at 2520 Avenue Au Soleil, you will recall that, at the last meeting, the Board of Adjustment gave consideration to an appeal of the decision of the administrative official as to whether or not a variance was required to place a metal roof on a single-family structure. After hearing, you made a motion indicating that the applicant should advise the town as to whether or not the property owner would allow the town to select an engineer to attempt to verify the report of the owner's engineer; and in the event that those two engineers had a disagreement, that those two engineers could appoint a third engineer and make a determination as to whether or not this structure of this house would or would not support a tile roof. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Since that time, I have received a letter from Mr. Rader, who is the property owner's attorney, advising that the owner did not wish to allow the town to select an engineer, under the terms of the motion, as made. I think that, as part of this hearing today, we should hear directly from Mr. Rader, if he is acting as the representative today, as to that position, rather than you hearing that from me. I think we should hear from him as to the owner's position in regard to that. This is a quasi-judicial hearing and I think it would be appropriate for us to incorporate, as part of the Record of this proceeding, the minutes of the last meeting, which are the minutes that you just approved of April 13th, 2012. But I think it would be appropriate, Mr. Mayor, for us to hear from Mr. Rader first, in regard to his client's response to the town's request. MAYOR KOCH: Okay. MR. RADER: Good morning, Mayor, Commissioners, Mr. Thrasher, Mr. Randolph. Before I answer that question or explain my client's position, I would like to at least make some points of some questions to pose and points REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of clarification I think that came out of last month's meeting. The first of these is I think the motion was made that allowed, before making the decision on the variance appeal that we had before the commission, to allow -- my client to allow the town's engineer to test my client's engineer's certification; and if they disagree, then have a third engineer come in. The first question we had is who is paying for these engineers? And the code calls for one engineer certification, but if there is a second engineer, a town engineer and they disagree, then the third engineer, who is paying for the other two engineers? Secondly, if they agree with our engineer, the town's engineer agrees, and we, then, have satisfied our two points of Code Section 71.872 in that we have provided -- we then have a re -roofing application, we provided engineer certification, which is then verified by the town, how long will it take the town to come up to their obligation under 71.872, which is to tell us what type of roof, metal roof is appropriate for this structure, in the neighborhood? REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then, if the town, if they disagree, suppose the second engineer and third engineer disagree with my client's engineer, for whatever reasons, my client's engineer feels that it's unsafe for a concrete tile roof, the town's engineer and this third engineer say it can handle it, the town forces my client to put on a concrete tile roof. A year or two goes by, the roof fails. Who takes liability? Is the town going to accept liability for forcing my client to put on a concrete tile roof, which is against my client's engineer's opinion? And then, fourthly, is the town hereby putting an extra condition on the code? The code says, in instances where there is re -roofing and a certification by the applicant, the town is to provide what metal roof is appropriate for the structure, in the neighborhood. The town now says there is a third condition for the applicant. The third condition is you have to let our engineer certify. Is this the town acting administratively in making a decision regarding the code? And then, we would really like to know, also pose the question to the town, in acquiring this verification of our engineer's certification, is REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there any other precedent in the town's actions where this is done, by a survey provided, being required, according to certain parts of the code, an applicant provides a certified survey, the town then says we don't believe it, we need to certify it, we need to verify that. Are there any other instances regarding any other professional certifications for the town? And to summarize my client's decision, I think he does not want to allow the town to have their engineer come in and verify his engineer's certification. And there has been some question that it is unreasonable. We would like to explain why that is not only very reasonable for my client to take that position. The reason why is we have the goalpost moving, here. Back on November 15th, he asked the town, can we put on a metal roof? The town's response, absolutely not; no metal roofs in the town of Gulf Stream, period. Then, when we find the exception in the code, we approached the town again. The goalpost moves because we say, well, there is an exception here. Can you please approve a metal roof? Can you say this metal roof is appropriate? And the response REIF KING WELCH LEGAL, SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is no, a variance is required, and once you apply for a variance, then our engineers can inspect the structure. Then, we come to the hearing last month and the town says, well, we're not saying you're wrong in your interpretation of the code, but we don't think metal roofs are desirable in the Town of Gulf Stream. The goalpost moves back. Then, we get a motion that says, and approved by the commission, that says we will not even consider whether or not your variance is required until you allow our engineer to verify our certification. Again, the goalpost moves out even more. What we have here is the town consistently moving the goalpost. This has caused my client extreme angst, because what happens if we provide an engineer to verify our certification? The town is now going to decide -- the town never said, the commission never said, well, if you do this, the verification is not required to have a metal roof, but the town says we'll decide after you do that. We have seen, lately, that the commission, itself, has defended its own positions with other applicants regarding other issues, by saying we REIF KING WELCH LEGAL. SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did everything by the book. My client is no different. What he has offered to do is what the code provides; no more, no less. So, why should he be held to a higher standard than the town itself, regarding this code? I think I'm pretty much open to take any questions. I do have a chronology we can go through to explain in more detail how this goalpost has shifted, but I'm here to really take any questions the commission might have as to my client's position. Or we can have even some answers on the Record as to our questions. MR. RANDOLPH: Before we go forward, Mr. Mayor, it is my understanding, though, that your client, regardless of the answers to the questions that you raised at the beginning, has made the determination that he will not allow the engineer's certification to be tested by the town; isn't that correct? You have already advised us of that fact. MR. RADER: Yes, it's because of this changing goalpost -- MR. RANDOLPH: So, the -- MR. RADER: -- and these unanswered questions. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RANDOLPH: So, the answers to those questions are really irrelevant in regard to your client's decide because he has already made that decision. MR. RADER: We never had any answers to those questions. It was not evident at the last hearing. If we had the answers to those questions, it would really help, go a long way to be able to sit down with my client -- MR. RANDOLPH: Did you ask those questions at the last hearing? MR. RADER: No, these are questions that have arisen. Well, basically, you and I had some discussions after that last hearing where we put forth the question about the liability issue. That is the biggest issue. MR. RANDOLPH: Right. But I mean you're raising questions today that have not been raised in front of this commission before, yet your client has already made the decision that he does not with the town to come in and test the accuracy of your engineer? MR. RADER: Without the answers to these questions, no, he is not. MR. RANDOLPH: How long? We have had since REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the last meeting to have asked those questions and have them answered; and yet, your client has, without the answers, has still made the decision not to allow the town to test the accuracy of the report. MR. RADER: Because we are coming to a hearing today to answer why my client will not allow the town to come in and verify my client's engineer's certification. We have asked many times, I think four or five times, at the last hearing. The issue was what we appealed. We have appealed the decision that a variance is required. We think Section 71.782 is quite clear; a variance is not required. If the town wants to address the separate issue as to the verification, verifying our engineer's certification, that is a separate issue. We appealed only the decision that a variance is required, and that is what we are still waiting for, and we have had other conditions put on us which we are not willing to accept. MR. RANDOLPH: Let me just say, Mr. Mayor, one more thing, and I don't want to dominate this, but I just want to speak to the accuracy of at REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 least one of these statements about what you did at the last hearing. I believe the town commission was very clear, at the last hearing, that you are entitled to a variance for a metal roof, subject to your meeting the conditions of the code, and those conditions, under the code, were to get an engineer's certification that the structure would not support a tile roof, which you did. However, they have indicated, based upon other information that was presented at the hearing that cast some doubt on the engineer's report, that it would be reasonable to allow the town to just test the accuracy. So, that is the issue and that is why they decided that they could not make a determination as to whether you needed a variance until they learned what your client was willing to do in regard to that particular matter. And that is what is before this commission today. Now that your client has refused to allow the town to test the accuracy of your engineer's report, the matter is still in front of the commission as to whether or not you need a variance. REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RADER: Same as we asked last week, it is basically the town is putting a requirement on us that is outside the code, and we have asked to keep this a separate issue. We wanted the town to decide, is a variance required? The town is putting, casting doubt on us for reasons we don't know why. When asked, you said the town has cause as to why, you say the town suspects, if the town has reasons for why it suspects our engineer's certification. I mean some members of the commission said, well, his roof has been on there for 35 years; why can't it now still handle it? We brought evidence at the last hearing that Broward County has a new code that every multi -family building over 40 years has to be re -inspected. When you get to 35 years like this building, you get to the point where materials start to fatigue and are not able to support structures. And you also have codes which are getting more stringent. We put that into evidence at the last hearing. But we ask if you have some cause, we ask you to give us that cause as to why you don't think our engineer's certification is accurate. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And the commission's motion was not -- we know that some commissioner's said, well, if you allow our engineer to do this, it's a done deal, but that is not the motion that was made. The motion says, "We will defer this and not make a decision until you provide our engineer the opportunity to verify your certification." We feel that is adverse to the code. That is not what the code says. The code is very clear. We provided you with certification; we should be able to apply and receive a metal roof. If you wanted to add to that question the veracity of our engineer's certification, that's another point and it has to be made very clear. The town has coupled the two together, and that is why my client is refusing to allow the town to verify the certification. MR. RANDOLPH: Well, I think now is the opportunity if the town has any questions that it wishes to ask Mr. Rader in regard to this, they do FY071 MAYOR KOCH: All I've got as a question is, does your client, if he could, if the roof were to hold the roofing that there is now, would he prefer that over the metal roof, or does he REIF KING WELCH LEGAL, SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really, really want to have the metal roof? MR. RADER: I think we put that into the Record last time. My client is not set on a metal roof. We don't know -- it came from the contractor. Mr. Thrasher said, well, he wants a metal roof, now; he doesn't want a concrete and tile. My client would love to have a concrete and tile roof, but the engineer's certification says, no, it will not handle it. He would like either shingle or shake. He is not set on a metal roof, but shingle and shake are specifically, and without exception, prohibited under the code. At least a metal roof is a light roof, which allows for an exception, which my client needs. That is why he came in and asked for a metal roof. VICE MAYOR ORTHWEIN: I think we just asked if the engineer could go in, our engineer, because all engineers are kind of like -- you know, all of them have different reports. The house has held a concrete roof for 35 years and maybe it is, you know, deteriorated, but I don't think we can accept just your engineer's report. All we wanted was our engineer to go in there and verify your engineer's report. That was all we asked. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RADER: Well, there, again, is something -- I know that is all the town asked, but it is -- VICE MAYOR ORTHWEIN: And you have denied it now. MR. RADER: But it is a monumental shift because the code says you will provide A and B. Now, the town is saying, no, the code we are now going to set on everybody else is you provide A, you provide B, and you provide C. Now, what happens if you -- MR. RANDOLPH: You know I just want to say I don't think you're accurate. I think the code simply indicates that you provide A, but that doesn't mean that the town has to accept A without question. Your engineer's report, which should be made a part of the Record, says, "To the best of my knowledge, this structure will not support a tile roof." I think, on the basis of that, the town has the right to -- I think Mr. Thrasher has some questions that he would like to ask. MR. RADER: Yes, sir? MR. THRASHER: Mr. Rader, could you tell me if your client has spoken to any other structural REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 engineer in regards to the integrity of the roof at 2520 Avenue Au Soleil? MR. RADER: At this time, I don't know. I really have knowledge whether he has or has not received an opinion from another engineer. MR. THRASHER: Do you have or do you have knowledge of any supporting documentation to Mr. Loom's December 14th engineering report? MR. RADER: I do not have possession or have seen any of that supporting information. I just know that Mr. Loom had looked at supporting information. I think he even inspected the site and came up with this. MR. THRASHER: May I read into the Record Mr. Loom's engineering report, dated December 14, 2001, to Chris O'Hare, 2520 Avenue Au Soleil, Gulf Stream, Florida 33482. It is in regards to the O'Hare residence at 2520 Avenue Au Soleil, in Gulf Stream, Florida. "Dear Mr. O'Hare, On December 13th, 2011, I inspected the existing roof frame you have at the referenced address. The existing roof framing will not support the design load of a concrete or clay tile roof. The lightest roofing system possible is needed. I REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certify, to the best of my knowledge, belief, and professional judgment that the referenced roof framing will not support a tile roof. If I can be of further service, please call. Signed and sealed by Mr. T.E. Loom" Is that correct? MR. RADER: Correct. MR. THRASHER: That is his report. I have also provided to you a copy of a revision form, City of Delray Beach. The Town of Gulf Stream received this November 15th, 2011, approximately 30 days prior to Mr. Loom's certification. And in that, the explanation of the revision reads: "Customer wants to change to metal roof." It does not refer to any need and requirement because of the roof structure. I know you think that is a moving target, but it does not refer to it at that time. And I would like to ask Rita, I'm not sure if she has been sworn in, a question in regards to this permit revision. MR. RANDOLPH: Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God? REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. TAYLOR: I do. MR. THRASHER: Ms. Taylor, could you tell me what the conversation was with the contractor, the roof contractor, I believe her name was Diana, in regards to her providing you this form as a revision to the already permitted concrete roof? MS. TAYLOR: She said when she presented it, that the owner had decided that he wanted to have a metal roof and the revision was for the previous application that had been submitted, several months ago, I think, for the concrete tile roof. MR. THRASHER: And to your knowledge, was a concrete tile roof permitted by the Town of Gulf Stream? MS. TAYLOR: It was permitted. It was permitted by the city -- or the building department in Delray Beach, and she did go on to say she was wondering why they hadn't been told to go ahead and lay the tile because the underlay had been on for some time, and that's when they received the revision form to go to metal. MR. THRASHER: Thank you. One final question, Mr. Rader. Is it correct to say that your client became aware of the existing roof condition as a result REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Mr. Loom's technical report? MR. RADER: No. MR. THRASHER: No? MR. RADER: It is quite evident you are asking questions probably proffered by your attorneys. Let me answer -- MR. THRASHER: Excuse me. MR. RADER: Let me answer the question my way. MR. THRASHER: That is not an assumption that is correct. MR. RADER: Excuse me, you made assumptions, too. You made an assumption that Diana was the contractor. She is not the contractor. She is their contact person. The contractor, I think, who is of record is, I can't even pronounce his name, Mr. Meroni (ph.) and it is for ROOFCO. And she is not -- she is the contact person, so what she says I think is irrelevant. You're bringing up referrals to timelines on December 14th, and that's because I told Mr. O'Hare you had better get something in writing. He knew before the 11th that there was a problem. He became concerned and contacted Mr. Loom. Mr. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Loom gave him a verbal. I said you had better, and after it was rejected, I said I think you better go back and get something in writing, which he did on December 15th. We then approached the town in March saying why can't we do this, and were told you can't do it, period, because one code says it can't be done. What part of the code? And as we found out last month, that part of the code doesn't apply. MR. RANDOLPH: Just a couple more questions. Is your client here to allow us to -- MR. RADER: No, he is not. MR. RANDOLPH: -- test the accuracy of the statements that you are making on his behalf? MR. RADER: No, he is not. MR. RANDOLPH: Is the engineer here that did this report? MR. RADER: No, he is not. MR. RANDOLPH: Did you proffer the engineer at the last hearing, to allow the council to question the engineer in regard to this report? MR. RADER: I don't think we were asked to bring the engineer at the last hearing, and no, we did not. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RANDOLPH: No, you did not. And despite the fact that the letter said, "If I answer any other questions," the town has not had an opportunity to ask or have these questions answered by the engineer. MR. RADER: The same thing would be to ask why didn't, when we first approached the town on February 15th, about putting on a metal roof, did the town tell us metal roofs are not allowed, period. Why weren't we told about the exception? To be fair about this, you know you're saying we should proffer. Well, the town should have proffered and said, well, we normally don't approve it, we haven't approved one, there are no metal roofs in the city of Gulf Stream, which we found out there may have been roofs in the city of Gulf Stream but they have changed over, the town used to have metal roofs. But here, we should have been told, look, there is a section of the code that allows you to have them; why don't you go out and do this? We were not told that. We had to discover that on our own. And before we discovered it, my client went and got the engineer to put what he said in REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 writing. That is why the date is December, instead of the 11th of November. MAYOR KOCH: All we want to find out is can it support the roof or not, but we want to ask the engineer to verify, for us to have a chance to verify his conclusion. If we don't get that, I don't think we can move ahead with your request. MR. DEVITT: You probably weren't told about the exception to metal roofs because you had a concrete roof that you were replacing. And again, going back to the intent of the manual, one of our major items was to prohibit metal roofs. Yes, there was that special written provision in there for those that had roofs that were existing, that couldn't later support and it would have been an undue hardship to try to have them restructure the whole roof system to convert over to concrete and tile. MR. RADER: You're talking about two points, here. One is you're talking about the town being able to put an upgrade on the condition of a home without it being stated in the code that they can do that. We found that kind of extraordinary, in REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the last hearing, Mr. Thrasher said, well, if somebody comes in for a re -roof or substantial construction change, they have to be brought up to the new code. There is nothing in the code that says that. But yet, you were outlining what had happened. You were on the committee and you said it was there to allow people such as yourself who want shake roofs -- MR. DEVITT: Yes. MR. RADER: -- but could not support concrete tile. If they were required to do so, we wondered what would require you to do so because the town clearly doesn't have the right to make you do it, because we can't find it in the code. But then, if it was just for people who had shake and who had shingle, why didn't it say for those who have shake and shingle and their roof cannot support a concrete tile, because we are going to force them to do that? We are not talking about chump change, here. We are talking about 20 -to $30,000 to re- engineer a structure on a roof in order to handle concrete tile, if all it has handled shake or shingle for 30 years. But then, also, it seems only logical that REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 roofs deteriorate over time. They cannot take the same loads that they take over time. That's why you see a lot, and the codes are changed to put higher wind- load requirements on roofs. So, it seemed perfectly logical that this was to apply to anybody. It didn't say it was only meant for people with shingle or shake. It is there across all the categories. MR. DEVITT: I agree that it is across the categories, but again, you are coming from a concrete tile roof and if you all feel confident that the condition of the roof has deteriorated such that it can no longer support it, it seems like you would just let us go in there and confirm your certification and move on. MR. RADER: Well, that is a question I put to your attorney, Mr. Randolph, last month, and the question still stands. We brought it here tonight. My clients -- could I safely, if they came with an engineer, two engineers, eventually sat there and said we think it could take concrete tile, so you force him to put concrete tile. Can you safely, without nightmares at night, he would have his family in there, knowing that one engineer told him no, it can't. And if so, REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and something happens, is the town taking liability, because you're putting requirements not in the code on my client, forcing him to do something that is not required in the code. Who accepts responsibility? I don't think you are going to find an engineer -- excuse me, I may be wrong, but I don't think you are going to find an engineer, if he knows up front that he is accepting liability for that, who is going to offer you an opinion. MR. RANDOLPH: I think, Mr. Mayor, unless there is any other questions, that you should go ahead and move on with consideration, and perhaps ask, since this is a public hearing, see if there are any other comments or questions from the public. MAYOR KOCH: Anybody want to comment on this: It's very quiet. MR. RADER: No matter -- MR. RANDOLPH: You know, this -- MR. RADER: No matter what the outcome is, I just want to thank you for your hospitality. The staff has been very responsive when I don't think they needed to be. MR. RANDOLPH: And Will and I have had REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 several conversations in regard to this and he has been very cordial, too. I mean let's make the Record clear, so you know we are not being evasive, and so that your record can be clear. I think your position is that you have clearly met the exception as stated in the code, that all it requires is a certification from an engineer, and there is nothing in our code that requires that to be verified. In regard to your other question, if you want it on the Record, yes, you are entitled to a metal roof without a variance. To answer the question that you had at the first hearing, you are entitled to a metal roof without a variance, as long as you meet the exception in the code, which requires you to provide the engineer's certification. So, that sets the record straight. That sets the question that may be before a subsequent court, in the event you decide to appeal this by cert. I think the question before this commission is, based upon those facts, do you consider a variance to be required, still, on the basis of REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their refusing to allow the engineer's certification to be tested. And so, I think that is the issue before you. And do you agree? I'm trying to frame your -- MR. RADER: In a roundabout way, I do. If I could just pose two questions which I think, if we could get answers to them directly, would be helpful for everybody. A clarification, first, on something you said, Mr. Randolph, is that your engineer is saying "To the best of his knowledge." That last sentence in that letter, that is standard engineering language for any certification that they do. Every engineer, when he seals a set of plans, it has that in the writing for the certification. And then, if the town is going to take the position that, for whatever reason, we suspect, because we don't think this is common practice to call out and challenge certifications put on surveys or other engineering or legal opinions. If, for some reason, they are calling an exception here today and saying we have doubt about, we think it should be in the Record very specific as to what cast that doubt, because we don't think it REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is just the age of the home, because we showed how the age of the home actually works in the favor of the roof needing to go with something lighter because they deteriorate over time. So, what is the real reason? Is it because the town doesn't like metal roofs? It should be on the Record as to what is the real reason as to why the town is putting the extra requirement on. MR. RANDOLPH: Clearly, it is not because the town does not like metal roofs, because it provides an exception in its code to allow for metal roofs. There is a record already before you, in the last hearing, which set forth facts relating to why they question the engineer's report. Based upon previous conduct of your client and based upon what has been put in the Record today, that your client has previously stated, even before getting an engineer's certification, that he wanted a metal roof. MR. RADER: But -- not -- MR. RANDOLPH: But I'm not going to -- let me MR. RADER: The certification -- MR. RANDOLPH: Wait, stop for a minute. REIF KING WELCH LEGAL, SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RADER: Okay. MR. RANDOLPH: I'm not going to speak for this commission, in that regard. I was just trying to clarify the issue before them, so that you were satisfied and the commission as satisfied as to what the specific issue is before them. MR. RADER: If I could just clarify. Excuse me, if I could just clarify. My client never said he wants a metal roof. It was written on an application by the representative of the contractor, coming in. And that's what -- they don't need to know all the reasons why. If my client has talked to an engineer, he doesn't have to tell the roofer, look, go and ask for it because we meet the exceptions of this section, which my client didn't even know about. MAYOR KOCH: We can debate this back and forth. MR. RADER: I will put on the Record that my client didn't say that. MAYOR KOCH: Counsel, thank you. We are going to support -- VICE MAYOR ORTHWEIN: I am still standing by what we told you last month. The same thing; you REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have another engineer. I think we have -- we have a doubt. I mean you have had a concrete roof on the house for 35 years. So, I think it is up to us to doubt your engineer's report. And all we ask is our engineer go in there and I still stand by that. MAYOR KOCH: Well, let's -- MR. DEVITT: I would like to add, quickly, that when people do submit plans and presentations, and if there is something in there that we, in our review, find we might want to question, we do question it, and we either -- VICE MAYOR ORTHWEIN: Yeah. MR. DEVITT: -- bring it up, or we sent it out. And so, we don't just take everything on its face as it is presented, without any review or reasonable backup or follow-through. So, this is what this has come to, unfortunately. It has come down to what the definition "and engineer certification" is. That's the part that we are wondering. MR. RADER: Well, you have the report and what we are not hearing is what specifically are you objecting to the engineer's certification? What specifically-- REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 3] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE MAYOR ORTHWEIN: We just want our engineer to go in there and -- MAYOR KOCH: And verify. VICE MAYOR ORTHWEIN: -- and verify it. That's it. And then, we can move on, here, okay? I think it's time to move on. MAYOR KOCH: I think we have debated this long enough. Do we have to have a motion or are we just -- MR. RANDOLPH: No, you will have to have a motion. I think we just need to hear what your motion would be. Remember, the question is -- MR. DERING: I will make the motion again. I mean we have spent a lot of time on this. It is one simple issue and we all know it is. We articulated it very well. I will make a motion that we deny the metal roof, and, if they wish to apply for a variance, so be it, on the basis that we have not verified the engineer's report and we have been refused to be able to do that. And by the way, I made the assumption we would pay for our engineer to come do that. MR. RANDOLPH: Oh, sure. Still, the question REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before you is whether or not you sustain the opinion of the building official, that a variance is necessary or not, and I assume, from what I have heard today, that, in the event you were to support the decision that a variance is needed for a metal roof, that it is primarily for the reason that the applicant has not satisfied that portion of the code which provides an exception to allow a metal roof, because he has not allowed you to verify the engineer's report. MR. DERING: Correct. VICE MAYOR ORTHWEIN: Correct. I'll second that. MAYOR KOCH: All right. Roll call. MS. TAYLOR: Commissioner Orthwein? VICE MAYOR ORTHWEIN: Aye. MS. TAYLOR: Commissioner Devitt? MR. DEVITT: Aye. MS. TAYLOR: Commissioner Anderson? MS. ANDERSON: Aye. MS. TAYLOR: Commissioner Dering? MR. DERING: Yes. MS. TAYLOR: Mayor Koch? MAYOR KOCH: Aye. Okay, thank you. MR. RADER: Thank you. REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The proceedings were concluded at 9:30 a.m.) REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) �q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF REPORTER STATE OF FLORIDA COUNTY OF BROWARD I, Paul Lisanti, Court Reporter, certify that I was authorized to and did report the foregoing proceedings, and that the transcript is a true and correct record of notes to the proceedings. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action. Dated this 30th day of May 2012. Paul Lisanti, Court Reporter. Notary Public - State of Florida. Commission No.: EE 64590. Commission Expires: 3-6-2015 REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) 35 A able 10:9 13:19 14:1123:23 32:22 absolutely 7:19 accept 6:9 11:22 15:23 16:14 accepting 26:9 accepts 26:5 accuracy 10:21 11:4,25 12:14 12:22 21:14 accurate 13:25 16:12 acquiring 6:24 acting 4:7 6:21 action 35:13,14 actions 7:1 add 14:12 31:8 additions 2:17 address 11:15 17:22 Adjustment 1:3 1:8 3:11 administrative 3:13 administrativ... 6:21 adverse 14:8 advise 3:17 advised 9:19 advising 4:3 age 29:1,2 ago 19:11 agree 5:16 25:9 28:4 agrees 5:17 ahead 19:19 23:8 26:13 allow 3:18 4:4 5:6,6 7:10 8:12 9:17 11:4,8 12:13,21 14:3 14:16 21:12,21 24:8 28:1 29:1133:8 allowed 5:4 22:9 33:9 allows 15:15 22:20 Anderson 1:17 2:7,8,18 3:2,3 33:19,20 angst 8:17 answer 4:23 11:7 20:6,8 22:3 27:13 answered 11:2 22:5 answers 9:12,15 10:1,5,7,23 11:3 28:7 anybody 2:17 25:6 26:17 appeal 3:12 5:5 27:21 appealed 11:12 11:12,18 APPEARAN... 1:13 applicant 3:17 6:16,19 7:4 33:7 applicants 8:25 application 5:20 19:10 30:10 apply 8:1 14:11 21:10 25:5 32:19 appoint 3:22 approached 7:22 21:6 22:7 appropriate 4:13,17 5:24 6:17 7:25 approve 7:24 22:14 approved 2:19 4:16 8:9 22:14 approximately 18:12 April 2:19 4:16 arisen 10:13 articulated 32:17 asked 7:17 11:1 11:10 13:1,3,7 15:16,17,25 16:2 21:23 asking 20:5 assume 33:3 assumption 20:10,13 32:23 assumptions 20:12 attempt 3:19 attorney 1:21 2:14 4:3 25:17 35:10 attorneys 20:6 35:12 An 3:10 17:2,16 17:19 authorized 35:6 Avenue 3:10 17:2,16,19 aware 19:25 Aye 2:24 3:1,3,7 33:16,18,20,24 a.m 1:9 34:1 B B 1:18 16:6,9 back 7:17 8:8 21:3 23:12 30:18 backup 31:17 based 12:10 27:24 29:15,16 basically 10:13 13:2 basis 16:20 27:25 32:20 Beach 1:2 18:10 19:17 beginning 9:16 behalf 21:15 belief 18:1 believe 7:5 12:3 19:4 best 16:17 18:1 28:11 better 20:23 21:2,3 biggest 10:16 Board 1:3,8 3:11 book 9:1 bring 21:24 31:14 bringing 20:21 brought 13:13 24:3 25:18 Broward 13:14 35:4 building 13:15 13:17 19:16 33:2 C C 16:9 call 2:22 18:4 28:20 33:14 calling 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291-DEPO (3376) 2 23:24 24:4,4 24:15 26:3,4 27:7,9,16 29:1133:8 codes 13:20 25:3 come 5:9,22 7:118:4 10:21 11:8 31:18,19 32:24 comes 24:2 coming 11:6 25:10 30:11 comment 26:17 comments 26:15 commission 5:6 8:10,20,23 9:10 10:19 12:3,20,24 13:1127:23 30:3,5 35:19 35:20 Commissioner 1:16,17,18 2:3 2:5,7,9,23,25 3:2,4 33:15,17 33:19,21 Commissioners 4:22 commissioner's 14:2 commission's 14:1 committee 24:7 common 28:19 concerned 20:25 concluded 34:1 conclusion 23:6 concrete 6:5,7 6:10 15:6,8,21 17:24 19:6,11 19:13 23:11,18 24:11,19,23 25:11,21,22 31:2 condition 6:14 6:19,20 19:25 23:23 25:12 conditions 11:21 12:6,6 conduct29:16 confident 25:11 confirm 25:14 connected 35:12 consider 8:11 27:24 consideration 3:12 26:13 consistently 8:15 construction 24:3 contact 20:15,19 contacted 20:25 contractor 15:5 19:3,4 20:14 20:14,16 30:11 conversation 19:3 conversations 27:1 convert 23:18 copy 18:9 cordial 27:2 correct 9:19 18:6,7 19:24 20:1133:11,12 35:8 corrections 2:17 council 21:21 counsel 30:22 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25:16,18 27:11,13,20,23 29:15 31:12,12 32:13,25 questions 4:25 9:7,10,12,15 9:25 10:2,6,8 10:10,12,18,24 11:1 14:19 16:22 20:5 21:1122:3,5 26:12,15 28:6 quickly 31:8 quiet 26:18 quite 11:14 20:4 Rader 4:2,7,18 4:219:21,24 10:5,12,23 11:6 13:1 14:20 15:2 16:1,5,23,24 17:3,9 18:7 19:23 20:2,4,8 20:12 21:13,16 21:19,23 22:6 REIF KING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) 23:20 24:11 25:16 26:19,21 28:5 29:21,24 30:1,7,20 31:22 33:25 raised 9:16 10:18 raising 10:18 Randolph 1:21 2:14 3:8 4:22 9:13,23 10:1 10:10,17,25 11:23 14:18 16:11 18:23 21:11,14,17,20 22:125:17 26:11,20,25 28:10 29:9,22 29:25 30:2 32:10,25 read 17:14 reads 18:15 real 29:5,7 really 6:23 9:9 10:2,8 15:1,1 17:4 reason 7:16 28:18,22 29:5 29:7 33:6 reasonable 7:14 12:13 31:17 reasons 6:3 13:7 13:9 30:13 recall 3:10 receive 14:11 received 4:1 17:5 18:11 19:21 record 2:13 4:14 9:12 15:3 16:17 17:14 20:16 27:3,5 27:12,19 28:24 29:7,13,17 30:20 35:8 refer 18:16,18 referenced 17:22 18:2 referrals 20:21 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staff 26:23 stand 31:6 standard 9:4 28:12 standing 30:24 stands 25:18 start 13:18 State 35:3,19 stated 23:24 27:7 29:18 statements 12:1 21:15 stop 29:25 straight 27:19 Stream 1:2,4,12 7:20 8:8 17:17 17:19 18:11 19:14 22:15,17 stringent 13:21 structural 16:25 REIF ICING WELCH LEGAL SERVICES www.reifkingwelch.com (877) 291-DEPO (3376) structure 3:15 3:24 5:25 6:18 8:3 12:8 16:18 18:17 24:22 structures 13:19 subject 12:5 submit 31:9 submitted 19:10 subsequent 27:20 substantial 24:2 summarize 7:9 support 3:25 12:8 13:19 16:18 17:23 18:3 23:4,16 24:11,19 25:13 30:23 33:5 supporting 17:7 17:10,11 suppose 6:1 sure 18:20 32:25 survey 7:2,4 surveys 28:21 suspect 28:18 suspects 13:9,10 sustain 33:1 swear 18:23 sworn 18:21 system 17:25 23:18 take 5:22 7:15 9:6,9 25:1,2,21 28:17 31:15 takes 6:8 talked 30:13 talking 23:20,22 24:21,21 target 18:18 Taylor 1:20 2:3 2:5,7,9,11,13 2:23,25 3:2,4,6 19:1,2,7,15 33:15,17,19,21 33:23 technical 20:1 te11523 16:24 1823 19:2 22:9 30:14 terms 4:5 test 5:7 10:21 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6:5 7:1,18 transcript 35:7 true 35:7 truth 18:24,24 18:24 try 23:17 trying 28:4 30:4 two 3:21,22 5:15 5:18 6:8 14:15 23:20 25:20 28:6 type 5:23 T.E 18:5 U unanswered 9:24 underlay 19:19 understanding 9:14 undue 23:17 unfortunately 31:19 unreasonable 7:13 unsafe 6:4 upgrade23:23 variance 3:14 5:5 8:1,2,11 11:13,14,19 12:5,17,25 13:5 27:13,15 27:25 32:19 33:2,5 veracity 14:12 verbal 21:1 verification 6:25 8:21 11:16 verified 5:21 27:10 32:20 verify 3:19 7:6 7:118:12,18 11:8 14:7,16 15:24 23:5,6 32:314 33:10 verifying 11:16 Vice 1:15 2:4,21 2:24 15:17 16:3 30:24 31:13 32:1,4 33:12,16 W W 1:16 Wait 29:25 waiting 11:20 want 7:10 11:24 11:25 15:1,6 16:1123:3,4 24:9 26:17,22 27:1131:11 32:1 wanted 13:4 14:12 15:23 19:8 29:20 wants 11:15 15:5 18:15 30:9 way 10:8 20:9 28:5 32:23 week 13:1 went 22:24 weren't 22:10 23:9 we'll 8:22 we're 8:5 WILLIAM 1:14 1:19 willing 11:21 12:18 wind 25:4 wish 4:3 32:19 wishes 14:20 wondered 24:12 wondering 19:18 31:21 works 29:2 writing 20:23 21:4 23:1 28:15 written 23:14 30:10 wrong 8:5 26:7 Y Yeah 31:13 year 6:8 years 13:12,15 13:17 15:21 24:24 31:3 $30,000 24:22 1001:4,11 REIF KING WELCH LEGAL SERVICES www.reifkingwalch.com (877) 291-DEPO (3376) 111:9 11th 20:24 23:2 13th 4:16 17:20 1417:15 14th 17:8 20:22 15th 2:19 7:17 18:1121:5 22:8 2 20 -to 24:22 200117:16 201117:20 18:11 2012 1:9 4:16 35:16 2520 3:10 17:2 17:16,19 276-51161:5 3 3-6-2015 35:20 3018:12 24:24 30th 35:16 33482 17:17 33483 1:4,12 3513:12,17 15:2131:3 4 4013:15 5 5611:5 6 64590 35:19 7 71.78211:14 71.872 5:18,23 9 9:00 1:9 9:30 34:1 REIF KING WELCH LEGAL SERVICES www.rei£kingwelch.com (877) 291-DEPO (3376) Tab 16 ORDINANCE NO. 12/4 AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, AMENDING THE TOWN'S CODE OF ORDINANCES, TO CREATE SECTION 62-10, TO PROVIDE FOR REVIEW CRITERIA FOR THE CREATION OF SUBDIVISIONS IN THE TOWN, AT SECTION 66-1, DEFINITIONS, TO MODIFY THE DEFINITION OF BASEMENT, AT SECTION 70-27, DISTRICT DESCRIPTIONS, TO INCLUDE ADDITIONAL CRITERIA FOR DISTRICT ELEMENTS, AT SECTION 70-70, FLOOR AREA CALCULATION, TO REVISE CALCULATIONS FOR BASEMENTS, AT SECTION 70-100, ROOF AND EAVE HEIGHT, TO CLARIFY ENTRY FEATURE EAVE HEIGHTS, AT SECTION 70-238, ROOFS, TO CLARIFY PERMITTED ROOF TILE STYLES, AT SECTION 70-51, MINOR ACCESSORY STRUCTURES, TO ALLOW WATERWALLS, AT SECTION 66- 367, SWIMMING POOLS, TO RESTRICT WATERFALL HEIGHTS, AT SECTION 66-369, DOCKS, TO CLARIFY PERMITTED BUILDING MATERIALS, AT SECTION 70-71, FLOOR AREA RATIOS, TO ADD INCENTIVES FOR SECOND - STORY SETBACKS, AT SECTION 70-73, SECOND FLOOR AREA, TO MODIFY REQUIREMENTS FOR SECOND STORIES FOR SINGLE FAMILY HOMES, AT SECTION 70-187, TABLE OF DISTRICT STANDARDS, ROOFS, TO CLARIFY REVIEW PROCEDURES FOR REQUESTED METAL ROOFS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ORDINANCES IN CONFLICT; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: Section 1. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 62, Subdivisions, to add a new Section 66-10, Criteria for Subdivision Review, to read as follows: Section 62-10 Criteria for Subdivision Review Any person seeking to subdivide Property within the limits of the Town shall comply with the following criteria. The Architectural Review and Planning Board and Town Commission shall assure compliance with these criteria in determining whether the proposed subdivision is permissible A. Lots to be created by the proposed subdivision shall be consistent with the character of lots and Parcels Immediate and adiacent to the proposed subdivision. B. Proposed subdivisions shall protect the character of the Town by Incorporating features that are compatible with and complementary to the preferred elements and overall character of the neighborhood district in which they are located Including, but not limited to, parcel size, parcel shape. access. topography, berms and buffers and landscaping and encourage the orderly and aesthetic development of the Town. C. Proposed subdivisions shall not create any non -conforming structures or lots without specific approval from the Town Commission. D. Proposed subdivisions shall protect and conserve the value of land buildings and Improvements, and minimize conflicts among uses of land and buildings E. Applicants for proposed subdivisions shall ensure the adequate and efficient provision of public facilities, such as transportation Potable water supply, wastewater collection and treatment, drainage. surface water management solid waste, parks and recreation are available concurrent with impacts of development. F. Proposed subdivisions shall avoid traffic congestion on streets and eliminate conflicts between pedestrian and vehicular movements. G. Streets and vehicular use easements shall Provide safe and efficient access for municipal services, such as fire, police and solid waste removal As such, dead- end streets and easement ending in a "T" or "Y" turnaround shall not 6 Permitted. H. Proposed subdivisions shall establish reasonable standards of design and Procedures for subdivisions and resubdivisions In order to further the orderly layout and use of land, and to ensure Proper legal descriptions of subdivided land. 1. Proposed subdivisions shall ensure that new development will be required to bear Its fair share of the cost of providing the public facilities and services needed at the time of development. J. Proposed subdivisions shall prevent the pollution of air and water resources ensure the adequacy of surface water management facilities safeguard the groundwater resources: and encourage the conservation protection and management of natural resources. K. Clear -cutting of parcels shall not be Permitted A landscaping Plan shall be provided so as to assure the preservation of landscaping and screening to the fullest extent nosslble and to provide a mitigation plan for any landscaping which is removed. Section 2. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article I, Section 66-1, Definitions, to read as follows Section 66-1. Definitions. Basement shall mean that portion of the building which Is below the finished floor elevation of the building and is located within the footprint of the first floor. A basement Is not considered a story with regards to the height measurement of a building, unless the ceiling of the basement Is greater than three )3) feet above grade. The square-feetage area of a basement completely under the first floarfootorint and having no outside entrance shall be included as 189%75%of the building's Floor Area Patio calculations. The area of a basement with an outside entrance shall be included as 100% of the building's Floor Area Ratio calculations. Basements shall conform to all setback regulations for structures. There shall be no entrances to such basement on the street side and the exterior appearance of such basement shall conform to the general architecture of the building. Section 3. The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manual, Article II, Single-Famlly Districts, Section 70-27, District Descriptions, to read as follows: Sec 70-27. District descriptions. (c) The character of each district, and the town as a whole, is further defined by the design elements and features listed as "preferred" in other articles of the chapter. From the surveys, these elements and features were found to represent the existing and desired qualities that the town wishes to have reflected in new homes and renovations of existing homes. While the use of specific preferred design elements is not mandated for new homes or rehabilitation projects, proposed projects must incorporate design features that are compatible with, and complimentary to, the preferred elements and overall character of the district, including parcel size, parcel shape, architecture and landscaping. Users of this chapter are therefore advised to closely study the character descriptions in this article as well as all of the preferred elements found In other articles prior to Initiating project designs. Section 70-298 and 70-299 also should be consulted for a further description of existing development in the town and each district. Section 4. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70.70, Floor Area calculation, to read as follows: Section 70-70. Floor Area Calculation (6) Areas in basements shall o" be included as 75% when it is located completely under the first floor footprint and has no outside entrance Areas in basements with an outside entrance shall be included as 100% Section S. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article V, Areawide Standards, Section 70-500, Roof and Eave Height, to read as follows: Section 70-100. Roof and eave height (a) (4) Entry features are the front portion of the structure which Provide door entrance to the dwelling. The height of the entry feature is measured from the finish floor elevation to the upper Portion of any balcony railings Dutch gable or other such elements. Entry features, if used, should provide a sense of arrival, yet should not overpower them or the remainder of the structure. The scale and proportion of entry features should be consistent with the rest of the structure, varyingiust enough to provide a focal point to the front of the house. (b) One story homes. (1) Preferred. Eave heights: From eight feet to ten feet six inches rfFem eight feet fe mem_..__ __) (2) Discouraged Eave heights: Between ten feet six inches and 12 feet (IaelweeR 32 _-'_ :4 feet (3) Prohibited Eave heights: Less than eight feet or greater than 12 feet (OFUMPmeet �'r+QRtern) (c) Two-story homes. (1) Preferred. Eave heights:: Beachfront and Ocean West Districts— From eight feet to 12 feet for one- story portions (ffam eight r_^• to +^ feet nt=r �� ) All other districts —From eight feet to ten feet six Inches for one-story portions (Iram eigh... et to44 ketfISFentFyfeatwes) (2) Discouraged. Eave heights: Beachfront and Ocean West Districts — Between 12 and 14 feet for one- story portions (between 14 --a +c ket s., eStFV 8tUFeS) All other districts — Between ten feet six Inches and 12 feet six inches for one-story portions (13PPYPER 14-_a,=feet Section 6. The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manual, Article VII, Predominant Revival Style, Division 3, Gulf Stream -Bermuda Style, Section 70-238, Roofs, to read as follows: Section 70-238. Roofs. (a) Required. ` hita ^_tjPntPhjFPd tile,, Flat, white thru and thru smooth un. coated tile and exeept-tha4 gray slate eF slate style tile maybe permitted on homes that are predominately Georgian or British Colonial with Bermuda Influences. subject to Level 1 appraya4r Flat, gray thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of Architectural Review and Planning Board and Town Commission through the Level III review process, sublect to the Architectural Review and Planning Board and the Town Commission making a determination that such alternatives are appropriate for the neighborhood. Section 7, The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manual, Article III, Use Regulations, Section 70.51, Minor accessory structures, to read as follows: Section 70-51. Minor accessory structures. The following structures shall be considered as minor accessorystructures in all five single family zoning districts subject to specific setbacks established In this chapter. Any structure which Is larger or more intensive shall be subject to the same setbacks as the principal structure. (2) Permanent recreation facilities, including but not limited to: In -ground swimming pools and spas, including waterfalls, which shall not to exceed four feet in helaht. Section S. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section 66-367, Swimming Pools, to read as follows: Section 66-367. Swimming pools. (i) Waterfalls, minor accessory structures shall not exceed 4 feet In height as measured from average finished grade of Property. (k) No grotto shall be permitted within any zoning district A grotto shall be considered an artificial structure or excavation made to look like a cave or cavern Section 9. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section 66-369, Docks, to read as follows: Section 66-369. Docks. (7) Materials and calors. Materials and colors of docks and ancillary structures shall be considered as part of architectural review and planning board consideration and shall be maintained as approved. All docks shall be made of wood No concrete docks are permitted. Section 30. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70-71, Floor area ratios, to read as follows: Section 70-71. Floor area ratios. (c) Incentive floor area ratio 1. For new structures in all districts FAR may be Increased to 0.33 for first 20.000 square feet of lot area plus 25 for portions above that if a minimum ten (10) foot setback Is Provided on any multi -story portion of the structure. The ten (10) foot setback Is In addition to the minimum required front setback. The structure must conform to all applicable setbacks 2. For alterations to existing structures in all districts FAR may be Increased to 0.33 for first 20000 square feet of lot area plus 25 for portions above that architectural features are added to the structure. The features may take the form of a Porch or balcony, but must be located on the front side of the structure and must occupy a minimum of 150 SF. Section 11. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70.73, Second floor areas, to read as follows: Section 70-73. Sesend-Noecacea, Two-story structures (al In order to limit the construction of bulkier homes with full second stories in districts with small to medium lot sizes, the following restrictions shall be used: Lbl The use of architectural design features to Provide variation among two-story single family homes Is required. One or more of the following features shall be incorporated within facades facing Public or Private roadways on any new two- story, single family home in all zoning districts • Second -story setback (minimum 5' setback in addition to ground level front setback • Front Porch (minimum 8' depth) Gulf Stream Ocean Beachfront North/South I Flace au care West Soleil Maximum 44.70 riSE ^-p:,.,�„•A--- ,74,70x first 49.70x Second floor area eet-area !700 area floor area first floor Floor Area x first .7 x first area or area floor area Lbl The use of architectural design features to Provide variation among two-story single family homes Is required. One or more of the following features shall be incorporated within facades facing Public or Private roadways on any new two- story, single family home in all zoning districts • Second -story setback (minimum 5' setback in addition to ground level front setback • Front Porch (minimum 8' depth) o Balcony (minimum 24 SF) o Arcade The Town Commission may waive this requirement within subsection (b) if the applicant can demonstrate that these features are inconsistent with the home's architectural style and that the desired visual variation is Provided through other measures. Section 12. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article VI, District Standards, Section 70-187, Table of district standards, to read as follows: Sec. 70-187. Table of district standards. 2. Roofs " Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only In Instances of re -roofing of existing structures based-upeR subiect to receipt by the town of an engineer's certification that the existing structure will not support a tile roof, said certification to append the engineer's studylies) and report(s) su000rting said certification and subiect further to an engineer appointed by the town confirming said engineer's certification Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. Section 13. Severability. If any provision of this Ordinance or the application thereof is held Invalid, such Invalidity shall not affect the other provisions or applications of this Ordinance which can be given effect without the invalid provisions or applications, and to this end the provisions of this Ordinance are hereby declared severable. Section 14. Repeal of Ordinances in Conflict. All other ordinances of the Town of Gulf Stream, Florida, or parts thereof which conflict with this or anypart of this Ordinance are hereby repealed. Section 15. Codification. This Ordinance shall be codified and made a part of the official Code of Ordinances of the Town of Gulf Stream. Section 16. Effective Date. This Ordinance shall take effect Immediately upon Its passage and approval, as provided by law. PASSED AND ADOPTED In a regular, adjourned session on first reading this a th day of June . 2012, and for a second and final reading on thlsl3th day of .Tnly .2012. ATTEST: Rill Clerk Commissioner Tab 17 561-777-0186 Llnvl I1 S1 25a.m 07-10-7012 lig ORDINANCE NO. 12/4 7 � AN ORDINANCE OF THE TOWN COMMISSION OF THE € 8 Y TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, E AMENDING THE TOWN'S CODE OF ORDINANCES, TO 6 CREATE SECTION 62-1D, TO PROVIDE FOR REVIEW a CRITERIA FOR THE CREATION OF SUBDIVISIONS IN THE TOWN, AT SECTION 66.1, DEFINITIONS, TO MODIFY THE O 0 DEFINITION OF BASEMENT, AT SECTION 70-27, DISTRICT DESCRIPTIONS, TO INCLUDE ADDITIONAL CRITERIA FOR DISTRICT ELEMENTS, AT SECTION 70.70, FLOOR AREA LL CALCULATION, TO REVISE CALCULATIONS FOR iS RBASEMENTS, AT SECTION 70-100, ROOF AND EAVE X HEIGHT, TO CLARIFY ENTRY FEATURE EAVE HEIGHTS, AT SECTION 70-238, ROOFS, TO CLARIFY PERMITTED ROOF TILE STYLES, AT SECTION 70.51, MINOR ACCESSORY STRUCTURES, TO ALLOW WATERWALLS, AT SECTION 66- 367, SWIMMING POOLS, TO RESTRICT WATERFALL HEIGHTS, AT SECTION 66.369, DOCKS, TO CLARIFY PERMITTED BUILDING MATERIALS, AT SECTION 7071, FLOOR AREA RATIOS, TO ADD INCENTIVES FOR SECOND - STORY SETBACKS, AT SECrION 70.73, SECOND FLOOR AREA, TO MODIFY REQUIREMENTS FOR SECOND STORIES FOR SINGLE FAMILY HOME5, AT SECTION 70.1117, TABLE OF DISTRICT STANDARDS, ROOFS, TO CLARIFY REVIEW PROCEDURES FOR REQUESTED METAL ROOFS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ORDINANCES IN CONFLICT; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: 5 Ion 1. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 62, Subdivisions, to add a new Section 66-10, Criteria for Subdivision Review, to read as follows: Sectio la for Subdivision Review AnV Person seeking to subdivide property within the limits of the Town shall comply with the following niter 6 The Architectural Review and Planning Board and Town Commission shall assure compliance with these criteria In determining whether the proposed subdivision is permissible. A. Lots to be created by the proposed subdivision shall be consistent with the character of lots and parcels Immediate and adjacent to the proposed subdivision. B. loosed subdivisions shall protect the character of the Town by Incorporating features that are compatible with and complementary to, the preferred elements and overall character of the neighborhood district In which they are located Inclydinai but not limited to parcel size parcel shape access 561-]3]-010 Lin.I I1:6]te a.m 0]-10-201] ).9 topography, berms and buffers and landscaping and encourage the orderly and aesthetic development of the Tpwn C. Proposed subdivisions shall not create any non-conforming structures or lots without specific aooroval from the Town Commission D. P_qr pgsed subdivisions shall protect and conserve the value of land buildings and Improvements and minimize conflicts among uses of land and buildings E. Applicants for Pr000sed subdivisions shall ensure the adeouate and efficient Provision of public facilities such as transoortatlon pot hle water supply, wastewater collection and treatment drainage surface r management solid waste parks and recreation are available concurrent with impacts of development. F. Proposed subdivisions shall avoid traffic congestion on streets, and eliminate conflicts between pedestrian and vehlcular movements. G. Streets and vehicular use easements shall Provide safe and efficient access for municipal services, such as fire, Police and solid waste removal. As such, dead- end streets and easement ending In a'T" or "Y" turnaround shall not be Permitted. H. Proposed subdivisions shall establish reasonable standards of design and Procedures for subdlvlsions and resubdNislons In order to further the orderly layout and use of land, and to ensure proper legal descriptions of subdivided land. I. Proposed subdivisions shall ensure that new development will be regulred to bear Its fair share of the cost of providing the Public facilities and services needed at the time of development. J. Proposed subdlvislons shall prevent the pollution of air and water resources; ensure the adeg uacv of surface water management facilities; safeguard the groundwater resources; and encourage the conservation, protection and management of natural resources. K. Clear-cutting of parcels shall not be permitted. A landscaping plan shall be provided so as to assure the oreservetlon of landscaping and screening to the fullest extent Possible and to provide a mitigation pian for any landscaping which is removed. Section 2. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Article I, Section 66-1, Definitions, to read as follows: Section 66.1. Definitions. Bosementshall mean that portion of the building which is below the finished floor elevation of the bulldingand is located within the footprint of the first floor. A basement Is not considered a storywith regards to the height measurement of a building, unlessthe calling of the basement is greater than three (3( feet above grade. The sgwre-faefage area of a basement completely under the first floor footprint and havineno outside entrance shall be Included as zW%75%ofthe building's Floor Area Ratio calculations. The area of a basement with an outside entranceshall be Included as Itll•TIl�tal 1mt 11 Lple m. pl_,p.t).t l�ff ol[he hu Wlrhf Fb k M sk I bre Bewmerts SnallmNdlmmall donela reNlatlmrs for stnaosrts. Then anal be no to .h b.,, an Me font SNund the eererlor appearena ofsddt pasamem shell mrform to the ashen$ arNtectun oftho bull{In{. 52C(I,pd 3. The Code of ONeh hzs of Me Town of Guff Aram Is herepy smendW a Chapter 70, Gull Strum Dngn Mmual, Artde II, S..&-lvmiry Olmlca, Secle m 7PV, Obldm0acdptlon4 to read n fellows Sec 1047. pleaded deamlpllona. Icl The chamic n of each dttrla, and tntpwn as a whale, is Who, de0rwtl by the deYyn elementsnd feature Wad u'prsferred' in other aNdnolthe chapter. Fom the survor", thus eamenn and feeruret were bund to rapreteNthe edoln9 and derlrad yuaGtea thelthe town w1ahu W have rgRoned in new homy and renovAlms of nbtin{homes. of thrtse ofspecAc preferred du4n elements Is not mndatad for naw hones or rehabilitation pejeco, pmpoted pmlerdp must imenrporatedeY{n feMree that are eempabble wIN, and mmpllmntary va, the preferred ellmm> am ovmll cpamTer Olthe dlrtdR indudlm parol Yee oarnl shape amhhntuNand iandaapine Hera of tha chapter are thamfore edvhad to dowry rtutf the cnander deadptbns NMB wild* n well er ell of IDs preferred alements found In other artelu prim to InitatN6 prolem dealers. Action 78399 and 711799 also should be cwvu bre Nrther dnmlptbr of aCWn{ dewbpmnt Inthe town and sarin dMra. 561_717-01® Ane l 11:59 Ra.m. 07-101017 �i9 Section 4. The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70.70, Floor Area Calculation, to read as follows: Section 70-70. Floor Area Calculation (6) Areas in basements shall nat be Included as 75% when it is located completely under the first floor footprint and has no outside entrance. Areas In basements with an outside entrance shall be included as 10096. Section S. The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 70, Gulf Stream Design Manuel, Article V, Areawide Standards, Section 7D-100, Roof and Eave Height, to read as follows: Section 70-100. Roof and eave height (a) (4) Entry features are the front portion of the structure which provide door entrance to the dwelling. The height of the entry feature is measured from the finish floor elevation to the upper oortion of any balcony railings. Dutch gable or other such elements. Entry features, if used, should provide a sense of arrival, yet should not overpower them or the remainder ofthe structure. The scale and proportion of entry features should be consistent with the rest of the structure, varying just enough to provide a focal point to the front of the house. (b) One story homes. (1) Preferred. Eave heights: From eight feet to ten feet six Inches (fmw aiglAfftatto t3 (W BA&PY liar %boes) (2) Discouraged Eave heights: Between ten feet six inches and 12 feet j"llwasp 2:1 and 14 foe! fosewt Y featwas) (3) Prohibited Eave heights: Less than eight feet or greater than 12 feet (graacgcthan-l4-Net few WA&PY fGAWFOO W-707-0188 Ul .1 12:00:04 o.m 07-10-2012 5,9 (c) Two-story homes. (1) Preferred. Eave heights:: Beachfront and Ocean Wen Districts - From eight feet to 12 feet for one- story portions All other districts - From eight feet to ten feet six inches for one-story portions (2) Discouraged. Eave heights: Beachfront and Ocean West Districts- Between 12 and 14 feet for one- story portions All other districts - Between ten feet six Inches and 12 feet six inches for one-story portions (between 14 and 16 feat fGF Section 6. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article VII, Predominant Revival Style, Division 3, Gulf Stream -Bermuda Style, Section 7D -23g, Roofs, to read as follows: Section 70-239. Roofs. (a) Required. Fit white thru and thru, smooth, un- coated the and eneefa"4a gray slate ocylato-ciyletile maybe permitted on homes that are predominately Georgian or British Colonial with Bermuda Influences. 6wbje64 iia I QY6111 2ppFaii,a4 Flat gray thru and thru un -coated tile or date -like the may be permitted at the discretion of Architectural Review and Planning Board and Town Commission through the Level III review process su blest to the Architectural Review and Planning Board and the Town Commission making a determination that such alternatives are appropriate for the neighborhood. Section 7. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article III, Use Regulations, Section 7D-51, Minor accessory structures, to read as follows: 561-737-OIaB ❑ne I 12M:56P.M 040-2013 6+9 SectGOn 70.31. Minor accessory structures, The following structures shall be considered as minor accessory structures in all five single famlly zoning districts subject to specific setbacks established In this chapter. Any structure which is larger or more Intensive shall be subject to the same setbacks as the principal structure. (2) Permanent recreation facilities, Including but not limited to: In -ground swimming pools and spas, Including waterfalls which shall not to exceed four feet In height. action B. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 66, Zoning, Artlde VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section 66-367, Swimming Pools, to read as follows: Section 66-367. Swimming pools. (I) Waterfalls, minor accessory structures, shall not exceed 4 feet in height as measured from average finished grade of property. lkl No grotto shall be Permitted within any zoning district. A grotto shall be considered an artificial structure or excavation made to look like a cave or cavern. Section 9. The Code of Ordinances of the Town of Gulf Stream Is hereby amended at Chapter 66, Zoning, Article VIII, Supplemental District Regulations, Division 2, Accessory Structures and Recreational Facilities, Section 66-369, Docks, to read as follows: Section 66.369. Docks. (7) Materials Pndcalors. Materials and colors of docks and ancillary structures shall be considered as part of architectural review and planning board consideration and shall be maintained as approved. All docks shall be made of wood. No concrete docks are permitted. Section 10. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70.71, Floor area ratios, to read as follows: 561-717-0198 bnxl 12,01:52 p.m 07-10-7012 7,9 Sedlon 70.71. Floor area ratios. Ic) Incentive Noor Oreo ratio 1. For new structures in all districts FAR may be increased to 0.33 for first 20,000 square feet of lot area plus ,25 for portions above that if a minimum ten (10) foot setback Is provided on any multi -story portion of the structure The ten 110) foot setback is In addition to the minimum required front setback. The structure must conform to all applicable setbacks .„...,,r..... 2. For alterations to existing structures in all districts. FAR may be Increased to 0.33 for first 20.000 square feet of lot area plus .25 for portions above that if architectural features are added to the structure. The features may take the form of a porch or balcony, but must be located on the front side of the structure and must occupy a minimum of 150 SF. Section 11. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article IV, Site Development Regulations, Section 70-73, Second floor areas, to read as follows: Section 70.73.6—Adfleepilee. TWO -story structures jai In order to limit the construction of bulkier homes with full second stories in districts with small to medium lot sizes, the following restrictions shall be used: u The use of architectural design features to provide variation among two-story smitle family homes Is required One or more of the following features shall be Incorporated within facades facing Public or private roadways an anv new two- story, single family home in all zoning districts. Second-stgry setback (minimum 5' setback in addition to ground level front setback e Front porch (minimum a' depth) Gulf Stream Ocean Beachfront North/South Placa au Core West I I Soleil Maximum .71.70 x first 1KAFsi i-r�HrsFflaa+ .n.70 xflrst .7G.7ox Second floor area fleeaaFea afaa floor area first floor Floor Arca .70 x first .70 x first area floor area fio2LIrSa u The use of architectural design features to provide variation among two-story smitle family homes Is required One or more of the following features shall be Incorporated within facades facing Public or private roadways an anv new two- story, single family home in all zoning districts. Second-stgry setback (minimum 5' setback in addition to ground level front setback e Front porch (minimum a' depth) 561-737-0188 une I 12 01:11 P.m. m- 10-2t12 Big • Balcony (minimum 24SF) • Arcade measures. Section 12. The Code of Ordinances of the Town of Gulf Stream is hereby amended at Chapter 70, Gulf Stream Design Manual, Article VI, Dlswct Standards, Section 7D-187, Table of district standards, to read as follows: Sec. 70-197. Table of district standards, 2. Roofs i Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood may be approved only In Instances of reroofing of existing structures Lased -open subiect to recelot by the town of an engineer's certification that the existing structure will not support a the roof, said certification to append the engineer's study(les) and report(s) supporting said certification and subiect further to an engineer appointed by the town confirming said engineer's certification Additionally, unpainted copper may be used either as a decorative accent or on minor accessory structures. Section 13, Severability. If any provision of this Ordinance or the application thereof is hold invalid, such Invalidity shall not affect the other provisions or applications of this Ordinance which can be given effect without the invalid provisions or applications, and to this end the provisions of this Ordinance are hereby declared severable. Section 14. Repeal of Ordinances in Conflict. All other ordinances of the Town of Gulf Stream, Florida, or parts thereof which conflict with this or any part of this Ordinance are hereby repealed. Section 15. Codification. This Ordinance shall be codified and made a part of the official Code of Ordinances of the Town of Gulf Stream. Section 16. Effective Date. 961-137-DIW Ul'I '7:00:06 p.m 0]-10-101] 9,9 This Ordinance shall take effect Immediately upon Its passage and approval, as provided by law. PASSED AND ADOPTED in a regular, adjourned session on first reading this Jlb- day of June 2012, and for a second and final reading on thlsl3th day of auly .2012. Mayor Vice Mayor Commissioner Commissioner Commissioner r_\ai31F Clerk IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401 CHRISTOPHER F. O'HARE June18,2013 CASE NO.: 41313-0621 L.T. No.: 2012CAO1107 v. TOWN OF GULF STREAM Appellant / Petitioner(s) Appellee / Respondent(s) BY ORDER OF THE COURT: ORDERED that the petition for writ of certiorari filed February 27, 2013, is hereby denied on the merits. MAY, C.J., TAYLOR and LEVINE, JJ, Concur. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: cc. ,John C. Randolph John E. Carter Tyler K Pitchford Louis Roeder, III ck IMARIL!rYN MULLER, Clerku Fourth District Court of Appeal Tracy S. Carlin Stephanie Eassa Rapp IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Petitioner, V. TOWN OF GULF STREAM, Respondent. Case No.: 2014CA007327 L.T.: Gulf Stream Board of Adjustment Christopher O'Hare SECOND AMENDED PETITION FOR WRIT OF CERTIORARI Petition for Writ of Certiorari to the Circuit Court Pursuant to the Florida Rules of Appellate Procedure 9.100 from the Decision of Town of Gulf Stream Board of Adjustment held on May 9, 2014 and with a written decision rendered on May 18, 2014 denying Petitioner's Application for an Appeal of the Final Action of the Planning and Building Administrator, that being the denial of a Building Permit Revision request to install an "energy device based on renewable resources." Attorneys for Petitioner The O'Boyle Law Firm 1286 West Newport Center Drive Deerfield Beach, FL 33442 Tel: 954-834-2209 ntaylor@oboylelawfm.com SECOND AMENDED PETITION FOR WRIT OF CERTIORARI The Petitioner, CHRISTOPHER F. O'HARE (O'Hare) respectfully petitions this Court for a Writ of Certiorari to review the Decision of the Board of Adjustment of the Town of Gulf Stream (the `Board"), denying Petitioner's appeal of Gulf Stream's final action denying a Building Permit revision request to build a "solar sandwich metal roof' — an energy device based on renewable resources. BASIS FOR INVOKING JURISDICTION This Court has jurisdiction to issue a Writ of Certiorari pursuant to the Gulf Stream Code of Ordinances, Section 66-174(10), under Rule 9.030(c)(3) of the Florida Rules of Appellate Procedure, and §164.03(1), Fla. Stat. STANDARD OF REVIEW Where a party is entitled as a matter of right to seek review in the circuit court from an administrative action, the circuit court must determine (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982); Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995); Cherokee Crushed Stone Inc. v. City of Miramar, 421 So.2d 684 (Fla. 4a' DCA 1982). As set forth in further detail below, all three elements are present in the instant matter. First, the Board's affirmation of Town Manager Thrasher's executive denial of O'Hare's permit application for a renewable energy roof system violated State law. Under §164.03(1), Fla. Stat., the Florida State Legislature has expressly preempted local ordinances that have the effect of prohibiting renewable energy systems. Moreover, the Board recognized that Mr. O'Hare was applying for a permit to install a "renewable energy device." The Board, having the final interpretation of municipal ordinances, interpreted two municipal metal roof ordinances in such manner that they both had "the effect of prohibiting the installation of solar collectors ... or other energy devise based on renewable resources" pursuant to § 164.03(1), Fla. Stat. Therefore, the Board ignored the essential requirements of law and did not base its decision on substantial and competent evidence, as none was presented demonstrating that Petitioner's "solar sandwich" roof system was not a device contemplated under §164.03(1), Fla. Stat. Second, the neutrality of the quasi-judicial Board was compromised, thereby offending Petitioner's right to Due Process under the Fourteenth Amendment as Town Attorney John C. Randolph acted, personally and through his firm Jones 2 Foster, appeared as both advocates for the Town and as an advisor to the Board. Such a dual role violated the Doctrine of Incompatibility and Due Process. STATEMENT OF FACTS 1. Town Attorney John C. Randolph (AQUA "Skip") is a partner of the West Palm Beach law firm named Jones, Foster, Johnston & Stubbs, P.A ("Jones Foster"). (A. 48). 2. On February 5, 2014, Petitioner O'Hare submitted a revision request for a building permit to the City of Delray Beach, Florida. The requested was received by the Town of Gulf Stream on February 6, 2014. (A. 1-4). 3. The revision request was for the installation of a "solar sandwich" roof system, which is a composition of two renewable energy devices "sandwiched on the top and bottom sides of a compatible metal roof covering. The "solar sandwich" roof system consists of a photovoltaic film applied with adhesive to the top surface of a compatible standing seam metal roof cladding, which in turn is over a solar thermal collection -system made of a network of waterlines. The solar thermal collection system reduces the operating temperature of the photo voltaic fihn by absorbing heat from the metal roof cladding and provides hot water to the home. The photovoltaic film needs the metal roof covering as a structural substrate and the thermal collection system needs the metal roof covering to lower the operating temperature of the photovoltaic film. Simply put, the metal roof is necessary to, and sandwiched between, two different renewable energy generating resource devices. (A. 6-11). 4. On February 14, 2014, Gulf Stream advised O'Hare that the request was denied because, they claimed, Gulf Stream's code expressly prohibits metal roofs within the Town pursuant to Section 70-99 (3) and Section 70-187 of the Town Code of Ordinances (the "Town Code"). (A. 5). 5. On March 12, 2014, Petitioner O'Hare submitted an Application for Appeal of Final Action of Planning and Building Administrator to the Board of Adjustment arguing that the Town of Gulf Stream's approval of O'Hare's revision request is mandatory, due to preemption under Section(s) 163.04 F.S., 163.08 F.S., and 193.624 F.S. (A. 6-25). 6. On March 26, 2014, Thomas J. Baird, Esq. of the Jones Foster law firm, the same law firm as the Town Attorney, John C. Randolph, sent a missive to Town Manager Thrasher stating that he would be working on the Town's staff report which he received from Town consultant Marty Minor. The report was designed to support and advocate Town Manager Thrasher's position before the Board. Mr. Baird also noted that he was in contact with Town Attorney Randolph who would act as solicitor for the Board during Mr. O'Hare's proceeding. (A.48-50) rl 7. On March 31, 2014, Mr. Baird wrote to both Martin Minor and Town Manager Thrasher asking if they had received Mr. Baird's proposed staff report which was intended to advocate the Town's position before the Board. (A.51-52) A public hearing on the appeal was commenced on May 9, 2014. (A. 32) During the quasi-judicial hearing, Town Attorney John C. Randolph asked the commission if they wanted to hear testimony from Town consultant Martin Minor and recommended that Town Manager Thrasher's report be moved into the record. Mr. O'Hare's attorney Marlc Hanna, Esq. objected, stating that Mr. Randolph was acting as Town advocate and advisor. The objection was ignored. (A. 35) 10. Town Attorney Randolph then recommended that the Board include in the record evidence of a previous appeal Petitioner had pursued regarding a metal roof - a non -solar -powered metal roof. (A.36-37). 11. Lou Roeder, attorney for Mr. O'Hare, objected, stating that the previous appeal did not include any consideration of renewable energy devices and therefore had nothing to do with the present appeal before the Board. The objection was ignored. (A. 37). 12. Lou Roeder further noted that the Town was violating its interlocal agreement for building code review with the City of Delray Beach because that agreement mandated that all building code review of permit applications be performed by the City of Delray Beach; and that the Town was confined to only review permit applications for compliance with the Town's zoning and design regulations. (A.32). 13. After some discussion evidencing confusion amongst the Commissioners, Mayor Morgan attempted to summarized the controversy before the Board as follows: The issue is whether or not this applicant could heat water through an energy saving piece of equipment on his roof in the Town of Gulf Stream. And that testimony is, indeed, he could, but not by this method because it conflicts with the code's prohibition against roofs. That's it. (A.44) 14. Commissioner Stanley made a motion "to deny the applicant's appeal to place a solar sandwich metal roof on his home in the Town of Gulf Stream pursuant to the application before us." (A.44). Commissioner Stanley reasoned, "that the Town of Gulf Stream under its local ordinances does allow for installation of solar collectors, clothes lines and other energy devices based on renewable resources" and that based on this the Town still had the authority to ban Mr. O'Hare's requested metal roof. (A.44). Commissioner Stanley's statement implies that since the Town allows some renewable energy devices, the Town can therefore prohibit others that the Town finds incompatible with its zoning and design ordinances. 15. On May 22, 2014 the Mr. O'Hare received a letter from Respondent — postmarked May 20, 2014 — notifying him that the Board of Adjustment had denied O'Hare's request on May 18, 2014, thus sustaining the opinion of the Town Administrator. (A.26). 16. Petitioner's proposed "solar sandwich roof' system as a solar collector or renewable energy device under § 164.03 (1), Fla. Stat. and the Town subsequently determined that Section 70-99 (3) and Section 70-187 of the Town's Code does indeed have the effect of prohibiting the installation of Petitioner's device. Such a decision violates state law §164.03(1), Fla. Stat. and has resulted in a grievous miscarriage of justice. SUMMARY OF ARGUMENT The Town of Gulf Stream's regulations do not ban metal roofs per their town ordinance. Assuming arguendo that the Town of Gulf Stream is correct that their local ordinances do in fact ban metal roofing, the ordinances are invalid as they have the effect of banning power systems that require metal roofing. Section 164.03(1) clearly prohibits municipalities from preventing or hindering the use of renewable energy devices. The Respondent has produced no evidence showing that the "solar sandwich" roof system that the Petitioner seeks to install falls outside of the legislature's definition of a renewable energy device. Petitioner's right to Due Process was violated as attorneys for the Respondent, specifically Mr. Thomas Baird, advocated and advise the neutral board. Specifically, Mr. Baird prepared the staff report. During the May 9, 2014 Board hearing, Town Attorney Randolph, inter alia, sought to have the staff report admitted into the record. A quasi-judicial body must be neutral in order to satisfy Due Process. Based on the lack of neutrality of the Board, the Petitioner's Due Process Rights were violated. ARGUMCNT I. THE BOARD DEPARTED FROM THE ESSENTIAL REQUIREMENTS of LAW WHEN THEY DENIED PETITIONER'S PERMIT TO BUILD A RENEWABLE RESOURCE DEVICE UNDER &164.03(1) FLA. STAT. Petitioner does not dispute that the Board, despite clear evidence presented at the hearing to the contrary, has determined with finality that Section 70-99(3) and Section 70-187 of the Town Code prohibits metal roof systems that integrate solar power. Rather, Petitioner argues that the Town's Code does not, in fact, prohibit metal roofs; but that if the Board is of the opinion that they do, then those ordinances are invalid and preempted because they have the effect of prohibiting Petitioner from constructing a solar power system that happens to require a metal roof. The plain text of §164.03(1), Fla. Stat. preempts the use of local ordinances to prohibit the installation of solar energy devices: Notwithstanding any provision of this Chapter or other provision of general or special law, the adoption of an ordinance by a governing body, as those defined in this chapter, which prohibit or has the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable sources is expressly prohibited. Thus it is clear that the Board departed from the essential requirements of law when they interpreted Section 70-99 (3) and Section 70-187 of the Town Code to preclude Petitioner's "solar sandwich roof' system: a renewable energy device under §164.03(1), Fla. Stat. Under §164.03(1), Fla. Stat., municipalities may not use local ordinances to prevent or thwart the use of certain renewable resource energy devices, mainly solar power. If municipalities were allowed to regulate such devices, they could effectively use their zoning power, under the banner of aesthetics, to preclude solar power, thereby frustrating legislative intent to promote the efficient use of property: the immediate case here. Before this Court is a petition for first-tier certiorari review. "First-tier certiorari review ... is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal." Broward County v. G.B. V. International, Ltd., 787 So. 2d 838 (Fla. 2001). While the metes and bounds of the "essential 0 requirements" prong of certiorari review are elusive, it is clear that the performance of a preempted act departs from the essential requirement of law. Sprint -Florida, Inc. v. Jaber, 885 So. 2d 286, 293-94 (Fla 2004)(Finding no preemption thereby concluding that essential requirements of law were observed). Here, the Board failed to respect the constitutional supremacy of the Florida legislature, and departed from the "essential requirements of law" when they disregarded the plain text of §164.03(1), Fla. Stat. Although §164.08 & §193.624(1) Fla. Stat. define renewable energy, the Town presented no evidence that Petitioner's "solar sandwich" roof system fell outside of the protections of § 164.03, Fla. Stat. A. RESPONDENT'S DENIAL OF PETITIONER'S PERMIT WAS NOT SUPPORTED BY COMPETENT AND SUBSTANTIAL EVIDENCE Although Respondent's failed to adhere to the essential requirements of law at the Board's hearing, the Respondent failed to present any evidence that . Petitioner's "solar sandwich" roof system was not an energy device contemplated by § 164.03, Fla. Stat. Under Florida law, "[w]here the findings and conclusions comport with the essential requirements of law and are based on competent, substantial evidence, [the court] will approve them. Sprint -Florida, Inc. v. Taber, 885 So. 2d 286, 290 (Fla. 2004)(intemal citations omitted). Logically, decisions based on incompetent or unsubstantial evidence will independently trigger remedies under first-tier 10 certiorari review, regardless of whether the essential requirements of law were observed. Here, there was no evidence presented to the Board supporting the notion that § 164.03(1), Fla. Stat. did not apply to Petitioner's permit because it was not the type of device protected by state law. Moreover, no evidence was presented that Section 70-99(3) and Section 70-187 of the Town Code did not have the effect ofprohibiting Petitioner's solar energy device. Therefore, Respondent's final order must be vacated. U. PETITIONER'S RIGHT TO DUE PROCESS WAS VIOLATED BECAUSE THE TOWN ATTORNEY AND HIS FIRM ACTED IN BOTH ADVISORY AND ADVERSARIAL ROLES. Petitioner's hearing before the Board was not in accordance with Due Process because Town Attorney Randolph, attorney Thomas Baird, and their firm Jones Foster, both advocated and advised the Board. Mr. Baird had significant input on the Respondent's staff report: the written argument for the Respondent. (A.48). The record also reflects that Mr. Baird was in communication with Mr. Randolph the day after he notified Respondent's that he would be assisting them. (A.48). Additionally during the hearing, Town Attorney Randolph asked the commission if they wanted to hear from staff report author Marty Minor and wanted to move the staff report into the record. (A.35) Finally, Town Attorney Randolph suggested to the Town that an appeal Petitioner had sought in the past, IN and having nothing to do with the issue at hand, be moved into the record. (A.37) Ivlr. Randolph engaged in such behavior despite the fact the Ivlr. Randolph clearly stated at the appeal that he was not appearing as a prosecutor in the matter. (A.36) Under Florida law, a quasi-judicial body must be neutral in order to satisfy Due Process. Cherry Commun. v. Deason, 652 So. 2d 803, 804 (Fla. 1995). Additionally, Due Process (in an adversarial proceeding) requires that a government attorney not act as both advocate and advisor. Id. at 805. Ultimately, the U.S. Supreme Court has determined that the amount of process due depends upon the nature of the private interest, the government interest, and the burden upon the government in providing additional safeguards. Hamdi v. Rurnsfeld, 542 U.S. 507, 529 (2004). In Cherry Communications an attorney prosecuting a case before the Public Service Commission also acted as an advisor during post -hearing deliberations. The Florida Supreme Court found that the attorney's dual role could bias the commission and thereby violated the due process rights of the non-government litigant. Cheny Commun., 652, So. 2d at 805. Here we have similar situation, albeit with a different flavor. Petitioner's right to Due Process was violated first because a member of the Town Attorney's law firm, Thomas Baird, prepared or "worked on" Respondent's staff report: tantamount to writing Respondent's brief. Additionally, NIr. Baird 12 was in communication with Mr. Randolph concerning matters pertinent to Respondent in this matter the day prior to working on the staff report. Moreover, during the May 9, 2014 Board hearing, Town Attorney Randolph: (1) asked the Board if they wanted to hear testimony from Marty Minor — a witness who was adverse to Petitioner and who also had authored the Town's staff report with Mr. Baird; (2) recommended that the staff report be admitted into the record; (3) recommended that Mr. O'Hare's prior attempt to secure a non -solar -powered metal roof be moved into the record; and (4) advised the Board during their deliberations. Indeed, Town Attorney Randolph —together with Mr. Baird — crossed the line between acting as a neutral advisor to the Board and acting as an advocate for the Town; the Board was too susceptible to a loss of neutrality. This conflict, or appearance thereof, was too apparent or great to pass muster under the Due Process Clause's requirement that Petitioner receive a hearing before neutral tribunal. CONCLUSION The Petitioner is seeking a determination that in denying his right to apply for a building pen -nit to install a "solar sandwich" roof system with photo voltaic film on a standing seam steel roof cladding over solar thermal collection network at his residence, the Board exceeded its lawful authority, ignored express State preemption, and violated Petitioner's property rights. Based on this determination, Petitioner is requesting that this Court declare that the Town of Gulf Stream's W1 zoning cannot preclude the Plaintiff from installing a "solar sandwich" roof system and order the Town of Gulf Stream to transfer approval to the City of Delray Beach so that a building permit may be issued, allowing for the construction of a "solar sandwich" roof system on O'Hare's residential structure. Second, absent court directive to the Town of Gulf Stream to transmit approval to the City of Delray Beach as aministerial act pursuant to §164.03(1), Fla. Stat., Petitioner requests that this Court vacate the Board's order and order a rehearing before the Board in accordance with Due Process. Specifically, the Court should order that the Town appoint a special master or special counsel who is not associated with Jones Foster to advise the Board during rehearing. In addition to any other relief the Court deems necessary to afford Petitioner Due Process. Third, Petitioner seeks reasonable attorney's fees and costs under §164.03(1), Fla. Stat, and 42 U.S.C. §1983 & §1988 for violation of Petitioner's 14`h Amendment right to Due Process. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Second Amended Petition for Writ of Certiorari has been electronically filed with the Palm Beach County Clerk of the Court using the E -Filing Portal System on August 22, 14 2014 and famished via U.S. mail this 22nd day of August, 2014 to The Town of Gulf Stream, 100 Sea Road, Gulf Stream, Florida 33483. Is/Nick Tavlor Florida Bar No. 0051629 The O'Boyle Law Firm 1286 West Newport Center Drive Deerfield Beach, Florida 33442 Telephone: (754) 212-4201 Facsimile: (754) 212- 2444 CFRTITICATE OF COMPLIANCE I hereby certify that this Petition complies with the font margin requirement under Florida Rule of Appellate Procedure 9.100. /s/ Nick Tavlor Nick Taylor, Esquire 15 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Petitioner, Case No.: 2014CA007327 V. TOWN OF GULF STREAM, L.T.: Gulf Stream Board of Adjustment Respondent. Christopher O'Hare TAB I. The Initial Permit Al -A4 TAB 11. The Initial Denial A5 TAB III. Appeal to the Board A6 -A25 TAB IV. Final Written Action A26 -A27 TAB V. Inter -local Agreement A28 A31 TAB VI. Board Transcript 5/9 hearing A32 A44 TAB VII. Minor Email to Thrasher A45 TAB VIII. First Staff Report A46 -A47 TAB IX. Baird email/staff report A48 -A50 TAB X. Final StaffReport A51 -A52 TAB M. Baird, Minor Emails A53 -A55 t>ME1VED <9 FEB 0 6 2014 ea�,Yor, [fly OF DELRR4 HER[li. ®Town of Gulfstream. FL aF CITY OF DELRAY BEACH REVISION REQUEST Date: 2- S_ I L -i PermlL Number. - l 3 6069 Address When: Work Is Being Done On include unit or bay number): 2520 h-uONLIF- AV soL:9L, APPLICANTNAME ©t('I&2t% Phone: (Sbh 350-75*57 Far. ( • ) Z7 4 ZZZ Contact Person: S:ktn.fi CellPhone4- (,. ) tRa -ajon 0a, ADDED CONSTRUCTION COST FOR THIS CHANGE: $ EXPLAIN REVISION:_ INSTAa- "SoLkt SAAlbVJIr-(j1% fXOF `5x5TVM -0-F rw 1O YOL-rA1G rl411 aN S-RWJ)INb -;fFh1 5-( -L., KFBr= Ctiolr & oLly2 soLArc f E> i'A1PC C-0!IT>�n.e1 dl✓�Fa 17D✓ moyol t, `J, Pt-trre r- rr L tiL1 G Coxitlz�(LS 8� i�LYLM 111_!1 Sf?1I�� L/ SIl 1r -0U- 89Z!R 5 to P,i; Df�;ibfl 1 Niz NOTE:. To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan Reviewers may need the job site plans. I understand a fee Bybcharged in accordance with the City of Delray Beach LDR 24 21. The fee fora revision is 575.00 for lh ri she , and $1.00 for each additional revised sheet. For ADDED CONSTRUCTION COST, the fee will be ba a uilding Permit Fees. SIGNED: OFFICE USE ONLY ROUTING: FEES: OTHER F€ES AS APPLICABLE-- PPLICABLEPATH PATHDEPT. APPROVED BY/DATE: REVISION FEE: Padu::S S Publio Bldgs. S Schools S ADDED VALUE PERMIT FEE Road$ S Radon 5 PLAN REVIEWER: DATE.' - Al Others TOTAL FEES DUE: S Rvsd ENO Solar Sandwich Roof System Photo Voltaic (PV) Film panels adhered to standing seam steel roof panels applied over a channeled network of solar thermal collection tubing. Typical Section showing Schedule of Materials: PV Film on steel standing seam roof covering over solar thermal collector network. A2 2 Views of partially completed•Solar Sandwich Roof System Note: • Exposed standing seem steel roof panels can be supplied -by manufacturer In any color required by Town Code. • PV Ftim panels are only available in dark blue. • Owner's preference Is for steel panels to match the color of PV Film panels as closely as possible to produce a unifiedappearance. • System only functions when all elements are present. PV Film can ONLY be applied to a standing seam metal roof substrate. A4 " ' 1 From: Freda Defosse <fdefosse(algulf-stream.org> Date: Fri, Feb 14, 2014 at 10:56 AM Subject: RE: vertical axis wind turbine application To: Chris O'Hare <chrisohareoulfstream(c gmall.com> Dear Mr. O'Hare. Your application for a permit for a solar sandwich roof system to be installed at 2520 Avenue Au Solell, submitted on February 5, 2014, has been denied because the Town's Code of Ordinances expressly prohibits metal roofs within the Town within Section 70-99 (3) and Section 70-187. As such, metal roofs are not permitted under the Town's Code. Freda DeFosse Administrative Assistant Town of Gulf Stream TOWN OF GULF STREAM EMAIL DISCLAIMER: PLEASE NOTE: Florida has a very broad public records law. Most written communication to or from local officials regarding town business is considered public records and available to the public and media upon request. Your email communications may therefore be subject to public disclosure. A5 'NG 11 APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING & BUILDING ADMINISTRATOR Dale ofApplicalion 3/12114 pce: Project Information $40000 OwnerNamc: Chr toph lr F,., O'Hare Owner Signature: Project Address: 2516 Avenue Au Soleil, Gulf Stream, FL Project Property Legal Description: Lat 36, Place Au Solell, PBC, FL Project Description as Requested (describe in detail) Revision request to Permit No. 11-136068 to install a "solar -sandwich" metal roof (as ALLOWED under Sections 163.04 FS, 163.06 FS & 193.624 FS, especially 163.04(1) - see copy of original permit applicatlon and relevant regulatlons attached). II. Mani Action or Planning & Building Administrator Feb 14, 2014 denial of our Feb 5, 2014 request to install a "solar -sandwich" metal roof (sea attached e-mail from Freda Defosse, Town of Gulf Stream, & a copy of ouroriginal permlt applicatton) N. 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 %yilh the provisions of this Code or other applicable local, stole or federal law; Building Administrator's denial Is contrary to Sections 163.04 FS, 163.06 FS & 193.624 FS (copies attached). A6 (2) Made erroneous findings of fact based on the evidence and testimony placed bcfo a [lip final review authority at a public hearing; N/A (3) railed to fully consider mitigating measures or revisions offered by the applicant [hat would have brought (lie proposed project into compliance with [lie applicable regulations. Failure to consider Section 163.04, FS (see copy ofralevant regu- lations attached). V. Pleasc attach colorswa[ch, pictures or plans showing [lie proposed improvement. See permit application attached. Official Use Only Public Hearing Dale: Action: WIVIn F,pCesh•nepFaau A7 > REGEIVED 4. FEB 06 2W Tnwn of Gulfsfr:anl. FL , [lit' QF dElRR4 BEBLH It99113 CITY OF DELRAY BEACH REVISION REQUEST Date: Z-.5 — I LI Permit Number. -)' 3 6 0(06. Address Where Work is Being Done (to include unit or bay number): 2520 A-uOMM- AV sot_f('L, APPLICANT NAME: 0-14PI5-OFFW2_ 0'HIW?-r� Phone- (5166 gs-o-755-1 Far: ( e Z742.1t- Contact Person: SfUg-- Cell Phone d: (,.) c�47 70 ADDED CONSTRUCTION COST FOR THIS CHANGE: $ 3 700 ' EXPLAINREVISION:. IPSIAl- 1)50LFVZ Smowlicdt, P-COF `5V573'" 'OF Pi 10-VOL-rnI M LIA oN SU�51- KeOr 61.01Nb ,UC -:2 .50LAz T d7tr co Gi- Tr7JJ Lg1j U—gnL _ rcoailAlU 4r PLUPABIIJc <r•aiGmTai c CyN S SE PALt7t t7=i� sv`Ptl1 �L�J s�R�ohkrcA�QS -TO P,� �1JYIINF� l NOTE:. To avoid delay, the revision needs to be clear an the (2) drawings submitted. The Plan Reviewers may need the job site plans. 1 understand a fee relay bcharged in accordance with the City of Delray Beach LDR 2.421. The fee for a revision Is $7. e, and $1.00 for each additional revised sheet For ADDED CONSTRUCTION COST, the fee will be ba (jte wilding Permit Fees. SIGNED: OFFICE USE ONLY ROUTING: FEES: OTHER FEES AS APPLICABLE: PATH DEPT APPROVED BYIDATE: REVISION FEE: Pada: S 5 Public Bldgs:5 ADDED VALUE PERMIT FEE: Road S DPR$ Other$. PLAN REVIEWER: DATE: TOTAL FEES DUE: $ Rvsd 6110 M Solar Sandwich Roof System Photo Voltaic (PV) Film panels adhered to standing seam steel roof panels applied over a channeled network of solar thermal collection tubing. f Typical Section showing Schedule of Materials: PV Film on steel standing seam roof covering over solar thermal collector network. A9 Example of solar thermal collector network prior to application of standing seam steel roof panels. PV Film adhered to standing seam steel roof panels. A1D 2 Views of partially completed -Solar Sandwich Roof System Note: • Exposed standInCsecm steel rool' panels can be supplied by manufacturer In any color required by To= Code. • PV Film panels are only available in dark blue. Owner's preference Is for steel panels to match the color of PV Film panels as closely as posslble to produce a unified appearance. • System only functions when all elements are present. PV Film can ONLY be applied to a standing seam metal roof substrate. All 163:0"4{;nEner '"' device"sib"asetl'ron:.eeh'e'wable>resourcese (1) Notwithstanding any provision of this chapter or other provision of general or special law, the adoption of an ordinance by a ooverning body, as those terms are defined in this chapter, which Prohibits or has the effect of prohibiting the installation of solar collectors, clotheslines or other energy devices based on renewable resources is expressly prohibited (2) A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaratlon, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit. Such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 450 east or west of due south if such determination does not impair the effective operation of the solar collectors. (3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney's fees. (4) The legislative intent in enacting these provisions is to protect the public health, safety, and welfare by encouraging the development and use of renewable resources in order to conserve and protect the value of land, buildings, and resources by preventing the adoption of measures which will have the ultimate effect, however unintended, of driving the costs of owning and operating commercial or residential property beyond the capacity of private owners to maintain. This section shall not apply to patio railings in condominiums, cooperatives, or apartments. Page 1 of 12 Al2 History.—s. 8, ch. 80-163; s. 1, ch. 92-89; s. 14, ch. 93-249; s. 1, ch. 2008-191; s. 3, ch. 2008-227. 166 O8_ Supplemental author :for�impcovementsab real5proper ' (1)(a) In chapter 2008-227, Laws of Florida, the Legislature amended the energy goal of the state comprehensive plan to provide, in part, that the state shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors and reduce atmospheric carbon dioxide by promoting an increased use of renewable energy resources. That act also declared it the public policy of the state to play a leading role in developing and instituting energy management programs that promote energy conservation, energy security, and the reduction of greenhouse gases. In addition to establishing policies to promote the use of renewable energy, the Legislature provided for a schedule of increases in energy performance of buildings subject to the Florida Energy Efficiency Code for Building Construction. In chapter 2008-191, Laws of Florida, the Legislature adopted new energy conservation and greenhouse gas reduction comprehensive planning requirements for local governments. In the 2008 general election, the voters of this state approved a constitutional amendment authorizing the Legislature, by general law, to prohibit consideration of any change or improvement made for the purpose of Improving a property's resistance to wind damage or the installation of a renewable energy source device in the determination of the assessed value of residential real property. (b) The Legislature finds that all energy-consuming-improved properties that are not using energy conservation strategies contribute to the burden affecting all improved property resulting from fossil fuel energy production. Improved property that has been retrofitted with energy-related qualifying improvements receives the special benefit of alleviating the property's burden from energy consumption. All improved properties not protected from wind damage by wind resistance qualifying improvements contribute to the burden affecting all improved property resulting from potential wind damage. Improved property that has been retrofitted with wind resistance qualifying improvements receives the special benefit of Page 2 of 12 A13 reducing the property's burden from potential wind damage. Further, the installation and operation of qualifying improvements not only benefit the affected properties for which the improvements are made, but also assist in fulfilling the goals of the state's energy and hurricane mitigation policies. In order to make qualifying improvements more affordable and assist property owners who wish to undertake such improvements, the Legislature finds that there is a compelling state interest in enabling property owners to voluntarily finance such improvements with local government assistance. (c) The Legislature determines that the actions authorized under this section, including, but not limited to, the financing of qualifying improvements through the execution of financing agreements and the related imposition of voluntary assessments are reasonable and necessary to serve and achieve a compelling state interest and are necessary for the prosperity and welfare of the state and its property owners and inhabitants. (2) As used in this section, the term: (a) "Local government" means a county, a municipality, a dependent special district as defined in s. 189.403, or a separate legal entity created pursuant to s. 163.01(7). (b) "Qualifying Improvement" includes any: 1. Energy conservation and efficiency improvement, which is a measure to reduce consumption through conservation or a more efficient use of electricity, natural gas, propane, or other forms of energy on the property, including, but not limited to, air sealing; installation of insulation; installation of energy-efficient heating, cooling, or ventilation systems; building modifications to increase the use of daylight; replacement of windows; installation of energy controls or energy recovery systems; installation of electric vehicle charging equipment; and installation of efficient lighting equipment. 2. Renewable energy improvement, which Is the installation of any system in which the electrical, mechanical, or thermal energy is produced from a method that uses one or more of the following fuels or energy sources: hydrogen, solar energ , geothermal energy, bioenergy, and wind energy. Page 3 of 12 A14 3. Wind resistance improvement, which includes, but is not limited to: a. Improving the strength of the roof deck attachment; b. Creating a secondary water barrier to prevent water intrusion; c. Installing wind -resistant shingles; d. Installing gable -end bracing; e. Reinforcing roof -to -wail connections; f. Installing storm shutters; or g. Installing opening protections. (3) A local government may levy non -ad valorem assessments to fund qualifying improvements. (4) Subject to local government ordinance or resolution, a property owner may apply to the local government for funding to finance a qualifying improvement and enter into a financing agreement with the local government. Costs incurred by the local government for such purpose may be collected as a non -ad valorem assessment. A non -ad valorem assessment shall be collected pursuant to s. 197.3632 and, notwithstanding S. 197.3632(8)(a), shall not be subject to discount for early payment. However, the notice and adoption requirements of S. 197.3632(4) do not apply if this section is used and complied with, and the intent resolution, publication of notice, and mailed notices to the property appraiser, tax collector, and Department of Revenue required by s. 197.3632(3)(a) may be provided on or before August 15 In conjunction with any non -ad valorem assessment authorized by this section, if the property appraiser, tax collector, and local government agree. (5) Pursuant to this section or as otherwise provided by law or pursuant to a local government's home rule power, a local government may enter into a partnership with one or more local governments for the purpose of providing and financing qualifying Improvements. Page 4 of 12 A15 (6) A qualifying improvement program may be administered by a for-profit entity or a not- for-profit organization on behalf of and at the discretion of the local government. (7) A local government may incur debt for the purpose of providing such improvements, payable from revenues received from the improved property, or any other available revenue source authorized by law. (8) A local government may enter into a financing agreement only with the record owner of the affected property. Any financing agreement entered into pursuant to this section or a summary memorandum of such agreement shall be recorded in the public records of the county within which the property is located by the sponsoring unit of local government within 5 days after execution of the agreement. The recorded agreement shall provide constructive notice that the assessment to be levied on the property constitutes a lien of equal dignity to county taxes and assessments from the date of recordation. (9) Before entering into a financing agreement, the local government shall reasonably determine that all property taxes and any other assessments levied an the same bill as property taxes are paid and have not been delinquent for the preceding 3 years or the property owner's period of ownership, whichever is less; that there are no involuntary liens, Including, but not limited to, construction liens on the property; that no notices of default or other evidence of property -based debt delinquency have been recorded during the preceding 3 years or the property owner's period of ownership, whichever is less; and that the property owner is current on all mortgage debt on the property. (10) A qualifying improvement shall be affixed to a building or facility that is part of the property and shall constitute an Improvement to the building or facility or a fixture attached to the building or facility. An agreement between a local government and a qualifying property owner may not cover wind -resistance improvements in buildings or facilities under new construction or construction for which a certificate of occupancy or similar evidence of substantial completion of new construction or improvement has not been issued. Page 5 of 12 A16 (11) Any work requiring a license under any applicable law to make a qualifying improvement shall be performed by a contractor properly certified or registered pursuant to part I or partII of chapter 489. (12)(a) Without the consent of the holders or loan servicers of any mortgage encumbering or otherwise secured by the property, the total amount of any non -ad valorem assessment for a property under this section may not exceed 20 percent of the just value of the property as determined by the county property appraiser. (b) Notwithstanding paragraph (a), a non -ad valorem assessment for a qualifying improvement defined in subparagraph (2)(b)1. or subparagraph (2)(b)2. that is supported by an energy audit is not subject to the limits in this subsection If the audit demonstrates that the annual energy savings from the qualified improvement equals or exceeds the annual repayment amount of the non -ad valorem assessment. (13) At least 30 days before entering into a financing agreement, the property owner shall provide to the holders or loan servicers of any existing mortgages encumbering or otherwise secured by the property a notice of the owner's intent to enter Into a financing agreement together with the maximum principal amount to be financed and the maximum annual assessment necessary to repay that amount. A verified copy or other proof of such notice shall be provided to the local government. A provision In any agreement between a mortgagee or other Ilenholder and a property owner, or otherwise now or hereafter binding upon a property owner, which allows for acceleration of payment of the mortgage, note, or lien or other unilateral modification solely as a result of entering into a financing agreement as provided for in this section is not enforceable. This subsection does not limit the authority of the holder or loan servicer to Increase the required monthly escrow by an amount necessary to annually pay the qualifying Improvement assessment. (14) At or before the time a purchaser executes a contract for the sale and purchase of any property for which a non -ad valorem assessment has been levied under this section and has an unpaid balance due, the seller shall give the prospective purchaser a written Page 6 of 12 A17 disclosure statement in the following form, which shall be set forth in the contract or In a separate writing: QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY, OR WIND RESISTANCE.—The property being purchased is located within the jurisdiction of a local government that has placed an assessment on the property pursuant to s. 163.08. Florida Statutes. The assessment is for a qualifying improvement to the property relating to energy efficiency, renewable energy, or wind resistance, and Is not based an the value of property. You are encouraged to contact the county property appraiser's office to learn more about this and other assessments that may be provided by law. (IS) A provision in any agreement between a local government and a public or private power or energy provider or other utility provider is not enforceable to limit or prohibit any local government from exercising its authority under this section. (16) This section is additional and supplemental to county and municipal home rule authority and not In derogation of such authority or a limitation upon such authority. History.—s. 1, ch. 2010-139, s. 1, ch. 2012-117. 4., --- - -193 524;•_Assessment. of:ges�dentrat_property (1) As used in this section, the term "renewable energy source device" means any of the Following equipment that collects, transmits, stores, or uses solar energy, wind energy, or energy derived from geothermal deposits: (a) Solar energy collectors, photovoltaic modules, and inverters. (b) Storage tanks and other storage systems, excluding swimming pools used as storage tanks. (c) Rockbeds. (d) Thermostats and other control devices. (e) Heat exchange devices. (f) Pumps and fans. Page 7 of 12 A18 (g) Roof ponds. (h) Freestanding thermal containers. (1) Pipes, ducts, refrigerant handling systems, and other equipment used to interconnect such systems; however, such equipment does not include conventional backup systems of any type. (j) Windmills and wind turbines. (k) Wind -driven generators. (1) Power conditioning and storage devices that use wind energy to generate electricity or mechanical forms of energy. (m) Pipes and other equipment used to transmit hot geothermal water to a dwelling or structure from a geothermal deposit. (2) In determining the assessed value of real property used for residential purposes, an increase in the just value of the property attributable to the installation of a renewable energy source device may not be considered. (3) This section applies to the installation of a renewable energy source device installed on or after January 1, 2013, to new and existing residential real property. History.—s. 1, ch. 2013-77. 'Note.—Section 8, ch. 2013-77, provides that "[t)hls act shall take effect July 1, 2013, and applies to assessments beginning January 1, 2014." 366.91 Renewable energy.— (1) The Legislature finds that ibis in the public interest to promote the development of renewable energy resources in this state. Renewable energy resources have the potential to help diversify fuel types to meet Florida's growing dependency on natural gas for electric production, minimize the volatility of fuel casts, encourage investment within the state, improve environmental conditions, and make Florida a leader in new and innovative technologies. (2) As used in this section, the tens: Page 8 of 12 A19 (a) "Biomass" means a power source that is comprised of, but not limited to, combustible residues or gases from forest products manufacturing, waste, byproducts, or products from agricultural and orchard crops, waste or coproducts from livestock and poultry operations, waste or byproducts from food processing, urban wood waste, municipal solid waste, municipal liquid waste treatment operations, and landfill gas. (b) "Customer -owned renewable generation" means an electric generating system located on a customer's premises that is primarily intended to offset part or all of the customer's electricity requirements with renewable energy. (c) "Net metering" means a metering and billing methodology whereby customer -owned renewable generation is allowed to offset the customer's electricity consumption on site. (d) "Renewable energy" means electrical energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen produced from sources other than fossil fuels, biomass, solar energy, geothermal energy, wind energy, ocean energy, and hydroelectric power. The term includes the alternative energy resource, waste heat, from sulfuric acid manufacturing operations and electrical energy produced using pipeline -quality synthetic gas produced from waste petroleum coke with carbon capture and sequestration. (3) On or before January 1, 2006, each public utility must continuously offer a purchase contract to producers of renewable energy. The commission shall establish requirements relating to the purchase of capacity and energy by public utilities from renewable energy producers and may adopt rules to administer this section. The contract shall contain payment provisions for energy and capacity which are based upon the utility's full avoided costs, as defined in s. 366.051; however, capacity payments are not required if, due to the operational characteristics of the renewable energy generator or the anticipated peak and off-peak availability and capacity factor of the utility's avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years. Prudent and reasonable costs associated with a renewable energy contract shall be recovered from the ratepayers of the Page 9 of 12 A20 contracting utility, without differentiation among customer classes, through the appropriate cost -recovery clause mechanism administered by the commission. (4) On or before January 1, 2006, each municipal electric utility and rural electric cooperative whose annual sales, as of July 1, 1993, to retail customers were greater than 2,000 gigawatt hours must continuously offer a purchase contract to producers of renewable energy containing payment provisions for energy and capacity which are based upon the utility's or cooperative's full avoided costs, as determined by the governing body of the municipal utility or cooperative; however, capacity payments are not required If, due to the operational characteristics of the renewable energy generator or the anticipated peak and off-peak availability and capacity factor of the utility's avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years. (5) On or before January 1, 2009, each public utility shall develop a standardized interconnection agreement and net metering program for customer -owned renewable generation. The commission shall establish requirements relating to the expedited Interconnection and net metering of customer -owned renewable generation by public utilities and may adopt rules to administer this section. (6) On or before July 1, 2009, each municipal electric utility and each rural electric cooperative that sells electricity at retail shall develop a standardized Interconnection agreement and net metering program for customer -owned renewable generation. Each governing authority shall establish requirements relating to the expedited interconnection and net metering of customer -owned generation. By April 1 of each year, each municipal electric utility and rural electric cooperative utility serving retail customers shall file a report with the commission detailing customer participation in the interconnection and net metering program, including, but not limited to, the number and total capacity of interconnected generating systems and the total energy net metered in the previous year. Page 10 of 12 A21 (7) Under the provisions of subsections (5) and (6), when a utility purchases power generated from biogas produced by the anaerobic digestion of agricultural waste, including food waste or other agricultural byproducts, net metering shall be available at a single metering point or as a part of conjunctive billing of multiple points for a customer at a single location, so long as the provision of such service and its associated charges, terms, and other conditions are not reasonably projected to result in higher cost electric service to the utility's general body of ratepayers or adversely affect the adequacy or reliability of electric service to all customers, as determined by the commission for public utilities, or as determined by the governing authority of the municipal electric utility or rural electric cooperative that serves at retail. (e) A contracting producer of renewable energy must pay the actual costs of its interconnection with the transmission grid or distribution system. History.—s. 1, ch. 2005-259; s. 41, ch. 2008-227; s. 16, ch. 2010-139. 377.803 Definitions.—As used in ss. 377.801-377.807, the term: (1) "Act" means the Florida Energy and Climate Protection Act. (2) "Department" means the Department of Agriculture and Consumer Services. (3) "Person",means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, or any other public or private entity. (4) "Renewable energy" means electrical, mechanical, or thermal energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen, biomass, as defined in s. 366.91, solar energy, geothermal energy, wind energy, ocean energy, waste heat, or hydroelectric power. (5) "Renewable energy technology" means any technology that generates or utilizes a renewable energy resource. (6) "Solar energy system" means equipment that provides for the collection and use of incident solar energy for water heating, space heating or cooling, or other applications that would normally require a conventional source of energy such as petroleum products, natural Page 11 of 12 A22 gas, or electricity that performs primarily with solar energy. In other systems in which solar energy is used in a supplemental way, only those components that collect and transfer solar energy shall be included in this definition. (7) "Solar photovoltaic system" means a device that converts incident sunlight into electrical current. (8) "Solar thermal system" means a device that traps heat from Incident sunlight in order to heat water. History.—s. 4, ch. 2006-230; s. 59, ch. 2008-227; s. 516, ch. 2011-142. Page 12 of 12 A23 From: Freda Defosse <fdefosse ccDgulf-stream.oro> Date: Fri, Feb 14, 2014 at 10:56 AM Subject: RE: vertical axis wind turbine application To: Chris O'Hare<chrisohareouifstream(c)gmall.com> Dear Mr. O'Hare. Your application for a permit for a solar sandwich roof system to be installed at 2520 Avenue Au Soleil, submitted on February 5, 2014, has been denied because the Town's Code of Ordinances expressly prohibits metal roofs within the Town within Section 70-99 (3) and Section 70-187. As such, metal roofs are not permitted under the Town's Code. Freda DeFosse Administrative Assistant Town of Gulf Stream TOWN OF GULF STREAM EMAIL DISCLAIMER: PLEASE NOTE: Florida has a very broad public records law. Most written communication to or from local officials regarding town business is considered public records and available to the public and media upon request. Your email communications may therefore be subject to public disclosure. A2a ��t v s ��i i , ��' L i F ' " ' t ��S x n ' " ������ y j 3 . ��+ + . } a ��a t a ' d i ��x g ��y ' " e s f o r ��t l i e B ��r z d ' R i t a T a y l o r ��? ; r r o l a 1 - , , ; A r S O A ��c c a o A �� ` ��J ^ 4 T C , 3 7 3 7 _ Q , k r s 4 > 3 J ��3 J f S J r J A . J J i f 1 - ' Z ��b J J v A 2 5 P 1 3 3 5 3 7 1 . ��t v s ��i i , ��' L i F ' " ' t ��S x n ' " ������ y j 3 . ��+ + . } a ��a t a ' d i ��x g ��y ' " e s f o r ��t l i e B ��r z d ' R i t a T a y l o r ��? ; r r o l a 1 - , , ; A r S O A ��c c a o A �� ` ��J ^ 4 T C , 3 7 3 7 _ Q , k r s 4 > 3 J ��3 J f S J r J A . J J i f 1 - ' Z ��b J J v A 2 5 P 1 3 3 5 3 7 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA COMMISSIONERS SCOTTMORGAN, Mayor ROSERTW.GANGER, Vire-Mayar JOAN H: ORTH WEIN THOMAS M.STANMY OONNAS.WHITE Maja 10, 2014 Christopher F. O'Hare 2520 Avenue Au Soleil Gulf Stream, Florida 33483 Dear Mr. O'Hare: RECEIVED MAY 22 2011 Telephone (551I27R5115 Fax (5slIT77.0110 Tmm Mamger WILLIAM MTHRASHER Tom Oink RRA LTAYLOR This is to confirm that at the Public Hearing held by the Gulf Stream Board of Adjustment on May 9, 2014, your application for an. Appeal of the Final Action of the Planning and Building Administrator, that being the denial of a Building Permit Revision Request to install EL "solar -sandwich" metal roof an your property at 2520 Avenue Au Soleil, legally described as Lot 36, Place Au Soleil Subdivision was considered. It is noted that on the application form the project address is shown as 2516' Avenue Au Soleil but the Legal description is shown as Lot 36, Place An Soleil Subdivision which is located at 2520 Avenue Au Soleil. Inasmuch as the Building Permit Revision Form shows the project location as 2520 Avenue Au Soleil also, we have determined 2520 Avenue Au Soleil to be the correct address of this proposed project. Please be advised, that after full consideration of this matter, the Board of.Adjustment denied your appeal, thereby sustaining the decision of the,Planning and B Lld.n' Administrator. Very truly yours, 2/ Rita L., Taylor Town Clerk cc: Louis Roeder, Esq. 100 SFA.ROAO, GULF STREAM, FLORIDA 33483 FYI. A27 b rd i( 27 0 (U x aram aN •m N tp N •ri C m 7 omli a axu N W W O q m •O N r Oe m 1 0 INTERLOCAL AGREEMENT BETWEEN THE CITY OF DELRAY BEACH AND THE TOWN OF GULF STREAM THIS AGREEMENT entered into on this I r day of ���m ►JL� 209 by and between the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, hereinafter referred to as "the CITY" and the TOWN OF GULF STREAM, FLORIDA, a Florida municipal corporation, hereinafter referredto as "the TOWN". W ITN ESS ETH: WHEREAS, the health, safety and welfare of the residents of both TOWN and CITY will best be served by the CITY inspecting certain structures lying within the TOWN'S limits; and, 'WHEREAS, this Agreement evidences the Intentions of the respective parties to cooperate with each other in the furtherance of the public's interest. NOW THEREFORE, it is hereby agreed by and between the parties hereto as follows: Section 1. Definitions: Code: When used herein,.the term "Code" shall mean the Florida Building Code as amended. Department; When used herein, the term "Department" shall mean the City of Delray Beach Community Improvement Department. Building Official: Where used herein, the -term "Building Official" shall mean the Chief Building Official for the City of Delray Beach. • Fees : When used herein, the term "Fee" or "fees" shall mean the feels) charged as a condition for plan review, building, electrical, or plumbing permit and/or the inspection fee charged for inspection of work; both made a part hereof. Inspector. When used herein, the term "inspector" shall mean any Building Inspector in the employ of the CITY. Permlb When used herein, the term "permit" shall mean permit issued by the CITY for any construction work. Permittee: When used herein, the term "permittee" shall mean any individual, corporation or other business entity applying for and/or holding a valid permit. A28 Structures: When used herein, the term "structures" shall mean any and all above -ground, In -ground, and/or underground structures, and any and all construction, mechanical, electrical and/or plumbing work forwhich a permit must be obtained. Section 2. The CITY and TOWN, in consideration of the mutual promises and benefits hereinafter set forth, receipt of which Is- hereby acknowledged, do hereby agree as follows: A. The purpose of this Agreement is to provide the TOWN with the expertise and assistance df the CITY'S Department for the inspection and permitting df certain construction projects within the TOWN'S limits for compliance with the Florida Building Code. B. The method by which this purpose will be accomplished is as follows; 1. The TOWN shall adopt an ordinance which: a. incorporates by reference the provisions of the Code as presently in force and effect in the CITY; b, vests the responsibility for reviewing plans for compliance with the Code, issuing permits, and inspecting structures with the TOWN in the CITY'S Department; and C. upon adoption by the CITY of any amendments to said Code; the TOWN shall immediately, upon notice by the CITY amend its ordinance to accurately reflect such changes. 2. a. Plans for construction shall be submitted to the TOWN In triplicate by the applicant and shall'be reviewed by TOWN for compliance with TOWN'S Zoning Code and other non - Construction compliance. The 'three (3) plans shall be stamped and submitted to CITY by contractor or ownejr with the attendant permit applicant and fees. b. The Department shall review and process all plans, submitted in triplicate, checking the same for compliance with the Code; and determine the subsidiary permits necessary and the amount of fees. For processing and the inspection service, CITY shall receive one hundred percent (100%) of the permit fee. Said fees shall be colledted by CITY. After reviewing and processing said construction pians, CITY shall forward one set of said plans to the contractor/owner with the permit and another set to the TOWN with a copy of the permit. CITY shall not forward any plans tcrTOWN without the attendanff permit. 2 A29 r 3. Applications for all permits shall be submitted to CITY on CITY approved forms. The CITY shall process and prepare all pennits for construction within the TOWN. Any authorized individual may request the Department to inspect a project on a given time and date. The permit inspection card and plans shall be on the construction site at all times and the inspector, upon the completion of his inspection, will mark the card either as to acceptance and the date thereof, or will- note reason for rejection and the date thereof. Upon satisfactory completion of the project and final inspection, -the Building Official will prepare the Certificate of Occupancy and will forward said Certificate of Occupancy to TOWN which will issue the Certificate of Occupancy to the permitee, or authorized agent thereof, with a copy to the CITY. 4. The TOWN shall he solely responsible for the enforcement of violations of the provisions of said Code by persons, firms or corporations engaged in construction within the TOWN. 5. The TOWN shall assume responsibility for the administration of all cpnsumer inquires. The TOWN shall forward to the Building Official only those inquires concerning the plan review and inspection process, set forth above, and all others shall be the responsibility of the TOWN. 6. The Building Official shall have the right to refuse to inspect any structure within TOWN should he/she deem it in the best interest of CITY. All such determinations notto inspect a structure shall be made in writing to TOWN. 7. Subject to the lirpitatlons of Florida Statute 768.28, the TOWN shall hold harmless and indemnify CITY against'any and all claims for damages of every kind and nature including, but not limited to claims for property damage, personal injury or death, arising out ofthe plan review and inspection process. 8. The TOWN shall annually supply CITY with a Certificate of Insurance from the TOWN'S insurance carrier evidencing all the necessary insurance coverage for CITY and the Building Official or any authorized agent of the Department reviewing plans for construction within the Town and/or making inspections within the TOWN. Said insurance certificates and coverage shall be satisfactory to the CITY'S Risk Manager. The CITY is not obligated to undertake any action under this Agreement until the CITY'S Risk Manager has approved said insurance certificate and coverage. The approval by the CITY'S Risk Manager shall not be unreasonable withheld. i ij i ._._ r . ter. ...�.... _.�_. _ ... �...... ... ..� _. ... �....�._._ ..... Section 3. Duration. This Agreement shall be a continuing nature unless cancelled by either party for any reason and without penalty, on not less than sixty (60) days written notice. Any fees paid to CITY where inspection services are not completed shall be prorated In accordance with the percentage of inspection completed and any excess shall be refunded to TOWN. Section 4. Miscellaneous A. This Interlocal Agreement shall be filed pursuant to the requirements of Section 163.01(11) of the Florida Statutes. B. This Agreement shall be governed by and in accordance with the taws of Florida. The venue for any action arising from this Agreement shall be in Palm Beach County, l lorida: C. Neither party shall assign or transfer any rights or interest in this Agreement without the written consent of the other party. D. This Agreement shall not be valid until signed by the Mayor and the City Clerk of each party. IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by their duly authorized officers on the date setforth above. ATTES: �\` ByNCi' ,. ��� 1� Clerk Approve as in form: By: ,Q.yj.j_GiyAttorney Gr A�T`l'E�ST: By. — / City Clerk Approved as By: fly Attophey 4 r7c}I o1 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 1-4 7bmt or GULF STREM, pwram Page 1 i First, how's the decision preempted by the Page 3 PURLTC REARINGH Mn or E DEUSIGH APPEAL o1; AD.YZNLSIMTNE OECTSIDn 2 town's code. The town's adminfstrator has taken Friday, may 9, 2014 3 the position that both Section 70.99(3) and 70-187 9:W - 10:17 a.m. 4 prohibit metal roofs. Twp Hall 100 Sea Road 5 While Section 70-90(3) (sic) prohibits metal Gulf stream, Merida 6 roofs, Section 70-187(2) allows metal roofs under BOARD HEMarRs PR tRYOR: SCD= N. HORGAli arAIT 7 certain conditions. And according to Section =c MAYOR: PMERT N. GANGER 8 70-186(b), Section 70-187 preempts 70-99 meaning cMrxtrasmuER: JOAN K. oRTaRcn, 9 that metal roofs are allowed. EOMMSSIONER: DONIM ti. SlAuArEE Y cgrnussroNrn: nonan S. RHIIE 10 How is the decision preempted interlocal P P Y ALSO PRESE,n: 11 agreement? Minor's staff report addresses what he .maxc.RUMLPK,Town Atterney 12 erroneously perceives tobeconstruction Issues NSLIAH TERAsAM' Taun Manager GAARM WARD, Police Chief 13 gardin m clients client's emit regarding Y Y P RITA TAYLOR, Town Clark 14 application. SANDRA FMII, Retarding se¢etery 15 According to the September 2009 Interlocal LOUIS RDEDER, TTI, counsel for Mt. D•Rat= MMK HANNA, counsel for Mr. a'8are 16 agreement between the City of Delray Beach and the wear union, urban Deign Kilday studies 17 Town of Gulf Stream that's an agreement for the EHRZSTOPHCR MAKE, Tean Resident o•sortn, Teun nusident 18 Provision of buildin9 penniffing and Inspection RILLTAM ROM MI, Toun Resident 19 services. The permitting tasks are bifurcated NMCY RISSMI RM, Tovn Resident 20 between the city and thetown. More: various other audience members uc=e present that 21 According to Seelion 2(b)(2)(a) of that Note net identified for the record.) Reported Myr 22 interlocal agreement, quote, Plans shall be Kathleen in=. RPR 23 reviewed by the town for compliance to the town's .Hotary Tcbf=7ff33ue, scats of Florida 24 zoning code and ether nonconstrucgon compliance. 25 Since many oftheIssues raised bythe lown's Page 2 1 (The following proceedings were had:) 1 page 4 consultant are construction compliance issues, they 2 MAYOR MORGAN: Thankyou. Anyone else? 2 are issues that fall within the purview of the City 3 If not well move an to the next item, which 3 of Delray Beach building department, notthe Town 4 is our Board of Adjustment hearing. 4 of Gulf Stream, 5 On the appeal, Mr. O'Hare, 2520 Avenue 5 Now is the decision preempted by stale 6 AuSolell. S. statute? According—To paraphrase, according to 7 Who will be representing, Mr. O'Hare? 7 Chapter 163.04(1) an ordinance bygoveming body 6 MR. ROEDER: Good morning, Mayor, 8 which prohibits or has the effect of prohibiting 9 Commissioners. My name is Lou Roeder. I represent 9 the installation of energy devices based on 10 Mr. O'Hare in this appeal decision of the town 10 renewable resources is expressly prohbiled. 11 administrator. 11 Chapter 193.624(1)(a)defines what are these 12 More specifically, myorient isappealing the 12 solar energy devices. They include solar energy 13 town's deaislon to deny his application fora solar 13 collectors and photovoltaic modules, etcetera. 14 sandwich metal roof. 14 In other words, the town's code is preempted 15 We were Informed the permit was denied, and 1 15 by slate statute in that no part of the town's code 16 quote, Because the Town's code of ordinances 16 can be used, prohibit or have the effect of 17 expressly prohibits metal roofs wilhinthe town 17 prohibiting Installation of my client's requested 18 within Seelion 70.99(b) and Section 70187, as such 18 renewable energy device. 19 metal roofs are not permitted under the town code, 19 So as we have shown, the decision of the town 20 end quote. 20 admfnisbalcrIspreempted bystate statute, 21 It is our position that the town denlalIs 21 preempted bytnledocalagreement and preempted by 22 simply wrong. Why? Because the decision of the 22 the town's code itself. 23 town administrator Is preempted by state statute, 23 We are requesting that the decision of the 24 preempted by interfacet agreement, and preempted by 24 town administrator be reversed and the permit 25 thihetown's code itself. 25 forwarded to the City of Delray Beach forfurther O ES QUIRE 800.211,DEPO (3376) EsouireSolullons.com A32 PUBLIC HEARING May09, 2014 TOWN OF GULF STREAM, FLORIDA 5--8 1 consideration regarding the construction related Pages 1 COMMISSIONER GANGER: The appealpresumahy 2 issues. 2 wants us to agree that this metal roof with the 3 If you have any questions, I'll be happy to 3 solar panels should be permitted. 4 answer them. My client Is here too as well. We 4 Lel'sassume weagree with that, doesn't he 5 can answer any questions you might have. 5 have to go back and start all over again with that 6 MAYOR MORGAN: Those slate statute sections 6 agreement in hand, or do es he go to the 7 again, sir? 7 Architectural Review and Planning Board? What 8 MR. ROEDER: Yes. I think we included It in a would be the next step, the logical next stop 9 our packet. s making the assumption Ihatwa have—we ere 10 MAYOR MORGAN: You did. We pretty lengthy 10 sympathetic with his position? 11 so_. 11 MR. RANDOLPH: I think the appeal is based 12 MR. ROEDER: Yeah. We actually red lined — 12 upon the slalute. And the argument is that the 13 MAYOR MORGAN: I was trying to follow you 13 statute precludes the town from prohibiting the 14 while kicking. 14 metalroof. Soitismybellefthatinlheevent 15 MR. ROEDER: We actually red lined it for you 15 you believe the administrative official was 16 to be a little bit ease. Its Chapter 163.04(1). 16 Incorrect in his decision than the roof—the roof 17 MAYOR MORGAN: Yes. I see it. 17 would be allowed. 18 MR. ROEDER: And then when you go down toward 18 Novi 1 suppose the ARPB can look at It from a 19 the end— 19 design standpoint, but the primary Issue is—as1 20 MAYOR MORGAN: 1(a),right. 20 understand it, Mr. Roedeesargument isthat the 21 MR. ROEDER: —to find what are the actual 21 administrative official was incorrect in his , 22 devices, you go to 193.624(1)(a). 22 interpretation because the state law allows these 23 MAYOR MORGAN: Okay. 23 energy devices. 24 MR. ROEDER: And It might be interesting to 24 COMMISSIONER GANGER: Okay. Well,withihat 25 note that none of the town's consullanl's reports 25 in mind then dialing back to where via were Me 1 that were provided to us as a courtesy for this Page 6 1 years ago in this very same situation, its my Page 6 2 meeting actually included any— address at all any 2 understanding that the appellantwanted to have a 3 of the preemptions by state statute. 3 metal roof. And the basis for that desire was the 4 MAYOR MORGAN: Okay. Thank you. 4 fact that It was an old house, it was in disrepair 5 Any questions? 5 andthatthe— thatthehousecouldnotleleralo 6 COMMISSIONER GANGER: I'd like to startwith a 6 the heavier slate roof or file roof. 7 question of the town attorney, which Is making the 7 Now, I looked at the pictures that you had e assumption that this commission rinds merit in what a there, and this design looks like it's heavier than 9 the appellant is asking for, what —what happens 9 atile roof. I mean there's a lot of hardware In 10 next? Do we go back and start all over again or 10 there. And I guess the question I would askis 11 what? 11 have you done the research to indicate whether or 12 MR. ROEDER: Can I jut do a point of order 12 not the house could actually hold this kind —this 13 before that before the question is answered? 13 new kind of roof? 14 COMMISSIONER GANGER: Let the — Let the 14 MR. ROEDER: Well, metal roots —A general 15 attorney answer my question. 15 rule when you— One thing we submitted when we had 16 MR. ROEDER: But it is a point of order that 16 that appeal, different roofs have different 17 addresses thal. The attorney— 17 weights. One of the heaviest Is a concrete or the 18 MAYOR MORGAN: Well, lefs just let this 18 clay tile. 19 quesgon go first, and then we'll get back to you, 19 COMMISSIONER GANGER: That's not the question 20 Mr. Reeder. We'll certainly give you an 20 I'm asking. I'm sorry. 21 opportunity to comment and respond. 21 MR. ROEDER: But I'm answering it my way. 22 MR. ROEDER: Okay. Thankyou. 22 And then is the asphalt. And the metal real 23 COMMISSIONER GANGER: The administrative 23 Is about one-tenth the weight. 24 decision Is being appealed. 24 And when you put In the thermal, which Isa 25 MR. RANDOLPH: Right. 25 sublayer and then you put on the pholovollaiclayer ESQUIRE Esqu �eSo800.211.DEutlons.com A33 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 9-12 1 an tap, It isslifmuch lighlerthanany other Page 1 Pagell applicant or the appellantlhatyou hear from the 2 passible roof. 2 town manager in regard to his position. 3 But that again is a construction issue. 3 MAY09 MORGAN: Sure. No, we'll get tothat 4 Thai's an issue that's to be addressed by the City 4 1 just wanted to make sure that we are clearan 5 of Delray Beach by your own interlocal agreement. 5 exactly what points you were relying on foryour 6 What the town Is limited to is zoning issues 6 appeal. And I think you have now highlighted 7 or other nonoonslruclionrelated Issues, That's 7 those. 8 out —That'sourpositlonhere today. 8 MR. ROEDER: Yeah. And what Iwant todois1 9 MAYOR MORGAN: Well, you also mentioned the 9 reserve some time to he in response to the town 10 fact that the— as Mr. Gangersaid,that 10 administrator's arguments that he might make. I originally It was that the roof did not support 11 MAYOR MORGAN: Of course. 12 flip, and, therefore, under our own code you could 12 COMMISSIONER STANLEY: We'll give you rime to 15 apt fora metal roof. 13 rebut, Mr. Roeder. 14 Would you be open to the town sending an 14 MAYOR MORGAN: Okay. Any otherquestons of 15 engineer Into the house to justify that allegation?. 15 Mr. Roeder on this point? 16 MR.ROEDER: Again, thal'snot what wdre 16 COMMISSIONER WHITE: Doyouhaveany 17 Frere— What you're doing, you seem to be going 17 information an the wind resistance propedfes of 18 back to the situation ayear-and-a-half to two 18 the metal roof that you have in mind? 19 years ago. 19 MR. ROEDER: Let me address your question this 20 MAYOR MORGAN: Well, you mentioned it in your 20 way: There are different ways to get Florida— or 21 opening remarks. You referenced eurcode. 21 get product approval. You can have Florida product 22 MR. ROEDER: 1 didn't reference the incident a 22 approval. Actually, thal'sin Statute 553.6425. 23 year-and-a-half to two years ago. 23 Andthat's one of the erroneous observatlotlsbythe 24 MAYOR MORGAN: But you specifically said that 24 town's consultant. You can have Florida product 25 our code permitted this exception, and that was the 25 approval, you can have NOA approval which is 1 Pageto section that you cited. You say the roof could not 1 Page 12 Miami-Dade wind loads, or you can have local 2 withsladdthe tile. 2 approval, which can be done through a cedificallon 3 MR. ROEDER: Even the allowance, the partition 3 by a local architect or a local engineer. 4 and the allowance are both subject to slate 4 They assume since we didn't have the first two 5 preemption. 5 that weeouidn'lgetitapproved orItwas not 6 MAYOR MORGAN: Well, assume we don't accept 6 approved. We are allowed to submit theotherlhe 7 that argument, and we go back to your other 7 third way to the local building department. And 8 argument which Is that under our own code It could 8 that's exactly what we plan to do. ,9 be permitted, would you allow or would your client 9 COMMISSIONER WHITE. Okay. Butyaudon'thave 10 allow atown engineertD Inspect It to confirm the 10 any statistics on it orfundamental- 11 allegation? 11 MR. ROEDER: No. Actually, when It comes to 12 MR. ROEDER: Here today, again, we're bringing 12 the thermal layers and sluff that you'd apply, 13 up similar to what happened a year-and-a-half, two 13 there are test results. And what we do is we 14 years ago. We are appealing a decision,aspecflfc 14 submit—we submit acedificationletter from an 15 decision by the town administrator Who says it Is 15 engineer. And that information Is usually 16 not allowed and cites the cityscode orthe town's 16 submitted along with it. And Chats what gets 17 code. 17 considered by the local building department, which 18 We're saying that code is preempted by stale 18 is the City of Delray Beach. And that's what Ihey 19 statute,therefore, it should be sent to the Town 19 use to a make ihefrdecislon. 20 of Delray Beach for fudherconstruction 20 MAYOR MORGAN: Other questions? 21 consideration. 21 Thank you, Mr. Roeder. 22 MAYOR MORGAN: Okay. So I understand your 22 COMMISSIONER ORTHWEIN: I have one question — 23 point 23 MAYOR MORGAN: I'm sorry. 24 MR. RANDOLPH: Mr. Mayor, might I suggest if 24 COMMISSIONER ORTHWEIN: —about the roof 25 youu'd—on'thave any further questions Ofihe 25 tile, or the one that you're going to use. Is It LSQ U 11ZLr 800.211.DEPO (3376) EsouireSoluflons.com A34 PUBLIC HEARING TOWN OF GULF STREAM, FLORIDA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 permitted in Florida? MR. ROEDER: Tho tile, you mean the — COMMISSIONER ORTHWEIN: Marty Minor's report, the conclusion. MR. ROEDER: Now, see, Marty Minor said itwas notpennilted. COMMISSIONER ORTHWEIN; Right. MR. ROEDER: It doesn't have Florida product approval. COMMISSIONER ORTHWEIN, Right. MR. ROEDER: It doesn't have NOA approval. But they do have test results, and they submit certification letters in other states. And In Florida, actually, they submit letters, engineercediiicalfons to gel approval through the local approval method. In thatthey have test results, wind results that we use as part of that. COMMISSIONER ORTHWEIN: Okay. COMMISSIONER STANLEY: I have a question. MR.ROEDER: But we just ask the opportunity to submit that information to the local building department as we're entitled to get it approved. COMMISSIONER STANLEY: But I want Bill to go first, the town manager, then I'll — MAYOR MORGAN: The town manager response. MR. THRASHER: I reviewed this as it relates to two primary issues at least in my mind. One was the renewable energy concept, which, as you know, the town does allow for solar panels that are not visible from the roadway. That's a section of the code. So we have permitted solar panels in our town. I don't know how often or how many, but they have been presented to the town for approval and have been approved. The second thing that in my mind was analyzed was the fact that the material itself, the metal roof is prohibited. And with that, it was my idea to — or review process to denythe application, However, Itnowing thatthis has been a time -involved situation, l asked for a second opinion, that being Mr. Minor of Urban Design KlldayStudios. And in his report it confirmed what 1 had concluded. And, therefore, after that process the application was denied. MR. RANDOLP14: Do you wantto hear from Mr. Minor'? MAYOR MORGAN: I think so. Mr. Minor, would you care to comment an your report? ESQUIRE A35 May 09, 2014 13-16 1 MR. RANDOLPH; By the way, in regard to " 2 Mr. Thrasher's testimony, I recommend that you 3 admit into the record his report, which is before 4 you today in that regard. 5 MR. HANNA: Mr. Mayor, I would like to make 6 one comment. Mark Hanna, I'm an attorney for 7 Mr. O'Hare. 8 Mr. Randolph is kind of acting as a dual role 9 here. And there Is something in Florida called the 10 doctrine of incapability regarding his position of 1i advising the board but also taking aposition in 12 this situation of essentially being the prosecutor 13 and helping the town with the staff report and 14 advising the staff to deny this permit. 15 The Board of Adjustment is supposed to be an 16 impartial — 17 MAYOR MORGAN: Mr. Hanna — ia MR. HANNA: Yes. 19 MAYOR MORGAN:—Idont view itthat way at 20 all. I think he was giving us advise an a 21 procedure of something that's not done here every 22 day. 23 So I'll be happy to give you an opportunity to 24 speak, but I'd like to hear from Mr. Minordght 25 now. 1 MR. HANNA: Okay. Mr. Morgan, I was the 2 chairman of the Board for Adjustment. 3 MAYOR MORGAN: That's very good. I appreciate 4 that. 5 MR. HANNA: And we had two attorneys, one 6 advising the Board of Adjustment — 7 MAYOR MORGAN: Mr. Hanna, please. e MR. HANNA: Thank you, sir. 9 MAYOR MORGAN: You can stand or sit down. 10 MR. HANNA: I'm going to - 11 MAYOR MORGAN: I'll give you an oppodunilyto 12 speak. 13 MR. HANNA: Okay. Thanks, sir. 14 MAYOR MORGAN: I will do it, but let's do it 15 in order. Okay? 16 MR. HANNA. Absolutely. 17 MAYOR MORGAN: Show some respect. 18 Yes, Mr. Minor. 19 MR. MINOR: Good morning. 20 MAYOR MORGAN: Good morning. 21 MR. MINOR. Forthe record, Marty Minor, 22 senior planner with Urban Design Kilday Studies. 23 Mr. Thrasher asked me to look at this issue. 24 1 reviewed the application, and as mentioned 25 before, there's two sections of the code that do 800.211.DEPO (3376) EsqujreSojujfons.com PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 17-20 1 not permit metal roofs in most occasions. And I'll Page 17 1 MR. RANDOLPH, Is this rebuttal now or— Page 19 2 touch on them. 2 COMMISSIONER STANLEY: Iva got one more 3 Section 70.99 talks about--expressly 3 questtonfor—WeYelnrebuttal, orarewein 4 prohibits metal roars with the exception of 4 board discussion? 5 unpainted copper when used as a decorative accent 5 MR. RANDOLPH:Itseems tomeyou'restill in 6 are minor accessory structure. Themafln 6 Mr. Thrasher's presentation, unless he's yielded, 7 question Is neither one of those. 7 and you're going to rebutter. You may have 8 Under Section 70-187, that table of district 8 questions of Mr. Thrasher. 9 standards, It prohibits metal roars unless an 9 By the way, I mean I can — I'm not serving as 10 engineer can certify that the existing met will 10 aproseculorhereloday. Bulloanadviseyouas 11 notsupporta file roof. Andwilhin the 11 to the procedures in regard to this and things that 12 application material provided, that engineer 12 1 think should be made part of the record. 13 certification hasn't been provided. 13 MAYOR MORGAN: Of course, and we appreciate 14 It is those two sections of the code Is the 14 that. That's how 1 look it as well. 15 basis for the recommendation for denial. 15 Well, with that In mind, I thought we had 16 COMMISSIONER GANGER: Marty.! didn't 16 concluded with Mr. Thrasher. But are there any 17 understandwhat— has not been provided or has 17 alherquestlons? 18 been? 18 COMMISSIONER STANLEY: I've got a question for 19 MR. MINOR: Yeah. Has not been pmvided. 19 Mr. Thrasher. I think he's aptly stated, but the 20 COMMISSIONER GANGER: Okay. I lhoughl i heard 20 question Is basically this, and Ithink he's 21 you say has been provided. 21 answered it, is we --we do allow for— We have 22 MAYOR MORGAN: Any questions? Any questions 22 allowed In the past and currenty do allow fare 23 of Mr. Minorbased an his Interpretation of The 23 renewable energy technology as slated in the 24 code? 24 statute on roofs that are approved by the town 25 Actually— 25 underthecods. And that is—That's my question. 1 MR. HANNA: Mr. Hanna. Page 18 i We have and continue to do, correct? Page 20 2 MAYOR MORGAN: Mr. Hanna? 2 MR. THRASHER: That is correct. 3 MR. HANNA: Thank you, Mr. Mayor. 3 COMMISSIONER STANLEY: And, you know, an 4 Regarding — It's called a doctrine of 4 example or that would be - I think I know a few; I 5 incapability. This board is supposed to be in this 5 have aneighborthathas one -would be a while 6 situation acting as a fair impartial tribunal 6 through-and4hrough lila with a solar paneling on 7 hearing this appeal. 7 the side that docsn'Lface thostreet. 8 Mr. Randolph acting as the hoard of B And I thlnkwe've approved those an— I 9 adjustment's attorney is In conflict where he's 9 haven't personally since I've been onthis board [a 10 also acting as a prosecutor in this situation, 10 my knowledge. But those are in existence and have 11 arguing on behalf of the staff. Heprovidedthe 11 been approved by the town; Is that correct? 12 staff with advice in writing the report, and did 12 MR. THRASHER: Thous correct. 13 Input their a-mails where he had input into the 13 MAYOR MORGAN: Okay. Thankyau. 14 decision-making process. 14 COMMISSIONER WHITE: I have some panels an my 15 In Ocean Ridge, Kenneth Spfiliasalways 15 roof for the pool. And they face away from the 16 recused himself, and we had our own attorney acting 16 street. 17 for and advising the board during these hearings. 17 MAYOR MORGAN: Anything else forthe town 18 And I would just submit that, and check it 18 manager? 19 later, WE called a doctrine of incapability. And 19 MR. RANDOLPH: I would Just like to saylhat 20 Mr. Randolph should not be advising the board on 20 since mention was made of the past application 21 anything. Otherwise, there is the appearance of 21 regarding metal roars that you include as part of 22 the loaded deck where you have the staff 22 your record the petition of writ of certiorari that 23 essentially advising the board. 23 was Bled by the applicant in regard to the denial 24'' Thank you. 24 of the metal roof before. And that that—And the 25 MAYOR MORGAN::�Th-aannkyou. Mr. Roeder? 25 decision—That the decision of the circuit court O ES QUID 800.211.DEPO (3376) c u L u r, u x: FmrrfreRnfntlnnc rnm A36 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 21-24 1 In regard to that denying the petition for writ of ge 21 1 attached to your roof. It Is actually part ofiheage2s 2 certiorari and the decision of the Fourth District 2 metal roof. 3 Court of Appeal denying the petition for writ or 3 And this is the system that we're applying 4 certiorari simply be made part of the record. 4 for. It has nothing to do with the request for 5 MAYOR MORGAN: Thank you. 5 permitting thatwentthrough ayear-and-a•half ago. 6 if there Is no further questions, rebuttal 6 This Is totally apart and separate. 7 then by Mr. Roeder. 7 And it is system that should be given the a MR. ROEDER: First off, regarding Mr. Minor, 8 respect of slate statute and should be passed on to 9 he referred to Section 70-99 and 70.187. He said 9 the City of Delray Beach for them to review. 10 those were the basis for his denial, but yet has a 10 MAYOR MORGAN: Thankyou. 11 staff report that goes on to address other issues. 11 Any questions of Mr. Roeder's rebuttal? 12 So we're a little bit confused as to what is the 12 COMMISSIONER STANLEY: Do you have, 13 reason. 13 Mr. Roeder, any examples, you may or may not, of 14 We think it is blatantly obvious these were 14 this type of system being approved in any other 15 issues that were raised at the prior— since you 15 coastal town or somewhere in this region? 16 all brought it up, It was raised at the prior 16 MR. ROEDER: No. This is new for this type of 17 appeal. 70-187 supersedes 70-99. So metal roofs 17 system. Actually, they have trouble getting 18 are allowed. In his report he said they were not 18 approval of the metal an top of thermal. But it's 19 allowed. And he said here again today about not 19 athree-layered system. It can still have the 20 permitted, but that's beside the point to this 20 photovoltaic an top of the metal. 21 appeal. 21 Its for us to take it to the city and fry to 22 This appeal cites state statute, which 22 get the full three-part system approved. If we 23 preempts your code. So all this talk about 70-99, 23 only get approved the photovoltaic on top of the 24 all this talk about 70-187, it doesn't matter. 24 metal, One. And that has been approved and has 25 IL's all preempted by state statute. 25 been used in different Florida cities. We can gel 1 Page 22 While you may allow other owners to put up 1 you that informalion. Page24 2 separate panels, separate freestanding panels an 2 And it 1s done based on a local approval 3 lop of their roofs, if we come to you with a 3 method, not done on a Florida product approval or 4 system, and it's an energy saving system based on 4 NOA. 5 renewable energy sources, according to slate 5 COMMISSIONER STANLEY: So you can'tshow us a 6 statute it needs to go to the next level, cannot be 6 picture of a house Ina town within a25-miie 7 held up by the town based on your code. It needs 7 radius or such that has this an kjust because of 8 to go to the next level, which is the city review 8 the newness of the product basically? 9 for construction approval. 9 MR. ROEDER: Exactly. 10 This system, it's called a solar sandwich 10 COMMISSIONER STANLEY: Is thatyour- 11 system. Just let me make this clear. It's not 11 MR. ROEDER: Well, yeah. You can iindsome in 12 like these other systems you're talking about 12 other communiifes, but in Florida_ 13 Solarsandwich, the metal roof is integrated into 13 COMMISSIONER STANLEY: Right. 14 IL It's a metal roof that is sandwiched between a 14 MR. ROEDER: But there is. There is an awful 15 thermal barder which takes advantage of the heat 15 lot of the two layers, the photovoltaic on top of 16 generated by the metal roof to heal pipes. 16 the metal. 17 That was another point that Mr. Minor got 17 But the photovoltaic on top of metal on top of 18 wrong. He thought it was energy generating. IL's 18 thermal, we'd like to try and do the thermal as 19 a hot water generating system underneath. i9 part of It too so we can get say a double whammy so 20 And then on top you have overlaid on too of 20 to speak anwhatthe benefits would be of the roof. 21 that a pliable photovoltaic membrane that gets 21 COMMISSIONER GANGER: Forwhateverit's worth, 22 adhered to the metal roof, and it can only be 22 I personally commend anyone whds trying to figure 23 adhered to metal roofs. And this is a lot more 23 out ways to be more efficient With energy use. 1 24 cost effective than a rigidglass-like system 24 also believe that Gulf Stream should not be a place 25 which, you know, is up in panel boxes which get 25 that says, well, try It someplace else before you ESQUIRE 800.211.DEPO (3376) EsquireSolulions. com A37 PUBLIC HEARING TOWN OF GULF STREAM, FLORIDA May 09, 2014 25-28 1 bring it here, because maybe it's a great idea andas i information that would make you feel more Page27 2 A should be here first. 2 comfortable with the history of this system of 3 1 am also — I recognize if you're trying 3 pulling photovoltaic film on metal cool. It's not 4 something that hasn't been tried before there is 4 a new technology, been around a long time. It has 5 also risk It may not work. I think Donna is 5 had NOA spprovals in the past. It's not Ikewe're 6 absolutely right that, you know, we have no basis 6 experimenting. This isn't the Beta version. This 7 to determine whether or not it has better wind 7 Is established technology, and ti's arecognized 8 resistant capabilities. And one would hate to B renewable energy device. 9 have— 9 COMMISSIONER GANGER: Butltdoes—But ID 1 was told when I put—and, Donna, maybe you 10 Mr. Roedersaid he cannot give an example of where 11 had the same thing, I put one of these things on 11 we could go look at It and see what it looks fila. 12 for a hot water heater, and I was told to take It 12 MR. ROEDER: In fact, we did ask the 13 out before a hurricane. Uterally have the whole 13 manufacturer for examples. Butthewaytheygetil 14 thing ripped up, pipes closed, and everything else 14 approved In Florida is by doing the interlocal 15 before a hurricane. And i was willing to take that 15 approvals where the englneercediTies it based on 16 risk. 16 theirteslresults and based anthe letter from 17 But, you know, I don't think this commission 17 theirengineer. 18 should be approving something that actually puts 16 Which we have a lellertrom their engineer,' 19 the homeowner oriheneighbors atperil ifit 19 which then we then give to our engineer who then 20 hasn't been demonstrated that the product works. 20 looks at test results, certifies our drawings we 21 MR.ROEDER:Toansweryourquestfon— 21 submit to the city, and we submit toth9city and 22 COMMISSIONER GANGER: Yeah. 22 try and get it approved. 23 MR. ROEDER: —that's what approval through 23 MAYOR MORGAN: But that's not much being said, 24 the Delray Beach building department, they will not 24 and that's all fine. The real Issue here is 25 approve it unless you can do that. 25 whether or not our code is going to be vitiated by p age2s 1 COMMISSIONER GANGER: With all due res ect, 1 g the interloe— the Interfacial agreement with Pa e2e 2 Sir, Ideal with the Delray Beach building 2 Delray orthestate statutes that you menibried. 3 depadmentallthe time. The Delray Beach building 3 MR. ROEDER: Ithinkyau'reright. The 4 department islhemselvesi(indofInturmoil. 4 question fsthe state statute — 5 1 reallywould lRe to rely on a higher 5 MAYOR MORGAN: Regardless of what your s authority if that's the case forsomethingasnovel 6 praposingtoput Onthe roof frankly. 7 as this, and yet I don't want to tell you that we 7 MR. ROEDER: Exactly. Weyou have aright - B don't—that I personally don't think is a good a to look at zoning and other nonconstructionissues, 9 Idea. I thinkit, frankly, may be a terrific idea. 9 which all this discussion Is an construction 10 MR.O'HARE: (Inaudible) _.engineer. 10 issues. Does it fit within zoning, or doesn't Il? 11 COMMISSIONER GANGER., Would you if you have 11 l think we've shown it doesn't — it does fit 12 something to say, I mean III listen to you. What 12 within your zoning. And il'sactually preempted by 13 is you want to say? 13 the state statute. Send it on to the next step, 14 MR.O'HARE: I'm sorry. I can barely hear 14 and letthe City of Delray Beach approve R. 15 you. 15 Even your own interlocal agreement says you're 16 COMMISSIONER GANGER: Okay. I'm sorry. 16 only, again, supposed to be looking at those zoning 17 Is this not working? 17 issues, not the construction issues. 18 MR. allARE: Okay. Thank you. I have drilling 18 MAYOR MORGAN: I think that's the issue before to in my ear. And I have a hard time hearing you. 19 us. . 20 COMMISSIONER GANGER: Olay. Youhadsomething 20 Are there any other questions for Mr. Roeder 21 to say. 21 an that point? 22 MR. UNARM Oh. 22 Yes, sir? 23 COMMISSIONER GANGER: Ididretknow what you 23 MR.THRASHER: On that point, no. shave 24 were saying. 24 questions of Mr. Roeder. 25 MR. O'HARE:I was advising Mr. Roeder an some 25 MAYOR MORGAN: Oh, okay. OESQUIRE A38 800.211.DEPO (3376) Esqulre5olutlons. oom PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 29-32 1 MR. ROEDER: Yes, please. Page 29 1 town decides they want It pink, Pit make it pink Page 31 2 MR. THRASHER: Mr. Roeder, the manufacturer of 2 My motivation here Is to fight climate change, 3 this material Is that which Is listed in the 3 be agood cilizen, do as much renewable energyon 4 material provided; Is that correct? 4 that house as 1 can. I'm spending a lot of money 5 MR. ROEDER. No. We actually didn't— Which 5 to be as self-sufficient as possible. I think 6 is why we're kind of amazed. We didn't list a 6 everybody's got their responsibility. 7 manufacturer. We listed diagrams which showed a 7 Whatever 11 takes to comply and still have my 8 generic type system. 6 film, I'm willing to do. 9 MR. THRASHER: May I askthe name of the 9 MAYOR MORGAN: Thankyou for thal. 10 manufaclureryou'rereferring to? 10 MR.THRASHER: Just one more question, As the it MR. ROEDER* Actually, the metal root is 11 color of the membrane changes, does the colorer 12 Englerl. That's just a metal roof. 12 the ridge pane change as well? 13 Thelhermal, which is underneath, can be a 13 MR. ROEDER: No. 14 number of different manufacturers. 14 MAYOR MORGAN: All right. Any other 15 MR.THRASHER: Understood. 15 questions? 16 MR. ROEDER: And then the exterior is 16 COMMISSIONER WHITE Do you know how thick the 17 sunlight, thephotovollafc. 17 roof Is? There Isadiagram wilhThe schedule 0 18 MR. THRASHER: Understood is the membrane 18 materials that shows the layers. What is the 19 attached to the entire surface of the metal root? 19 thickness, and how do they seam the ends to close 20 MR. ROEDER: Irs attached between the seams. 20 it in? 21 MR.THRASHER:Isthe colorofthe membrane 21 MR.ROEDER- Actually.theclientmightbe 22 identifiable? 22 more better able to answer that. It's a22•gauge 23 MR. ROEDER: The membrane is usually blue or 23 roof, metal roof, but then a material thatgoes an 24 darkblue.Ittumscolors between dark blue and 24 topof8. 25 almost black, and then the roof will be dark blue. 25 Chas, you got an answer? Lel's make sum he I MR.7HRASHER: What causes the color io Page 30 1 heard that. Page32 2 change? 2 MR.O'HARE: I'm sorry. 3 MR. ROEDER: It's the heat. 3 MR. ROEDER: Asked about the membrane, haw 4 MR. THRASHER: And what is the calor el the 4 thick is the membrane that goes on the metal roof? 5 ridge? 5 MR.O'HARE Oh, its approximately a quarter 6 MR. ROEDER: Well, yeah, it's— 6 inch. It's a very thin Talton membrane with a 7 MR. THRASHER: Am 1 not making myself clear? 7 bulyl adhesivethafs been tested for adhesion, and 8 MR. ROEDER: Well, we're trying to getthe 8 1 think wind loads up to 240 miles an hour. 9 metal roof and the membrane to match. You know 9 COMMISSIONER WHITE: And that's the top 10 they'reblue. Ithink IVs darkblueorblue, and 10 membrane. Haw about the whole structure with the 11 it may Wm black. 11 coils and everything? So how thick will the end 12 But the ridge, the metal roof that the 12 result be? 13 membrane gets attached to can be any color you want 13 MR. O'HARE: Are you asking me about the 14 it to be. We want to get them to match. 14 photovoltaic film? 15 But then, again, that's an aesthetic issue. 15 COMMISSIONER WHITE: No. All the layers. The 16 And that's having acode or code aesthetics, which 16 sound —The solar, sound up. 17 Is superseded by state statute. 17 MR.O'HARE. From the metal surface up would 18 MAYORMORGAN: Under your argumenLtfwouldn't, 18 be a quarter Inch. The entire photovoltaic film is 19 mallerwhatcolor itis, what shape ItIs, what 19 only a quarter Inch thick or maybe 20 design it is. You put It an a roof. 20 three•sixteenlhs. 21 MR. ROEDER: That isbasically —Yes, sir. 21 Below the metal root Is your standard 22 Thais basically what the state statute says. 22 waterproofing membrane, insulation and the runners 23 MAYOR MORGAN: Okay. 23 of the thermal collective waterlines. 24 MR.allARE: But ifImight add, Mr. Morgan, 24 Butthat wouldn't change the apparent 25 we are here to cooperate with town. if the 25 elevation of mot from the street. Itweuld still �LrSQUI htthhe R 1', 800.2il.DEPO (3376) N o L U r , , „ , EsqufreSolutlons.com A39 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 33-36 1 lack the same as It does now. Page 33 1 What is the- When this is Installed, what Is Page 35 2 COMMISSIONER WHITE Soitwon'tbeany-It 2 the guaranteed lire? Doyouhavea-In other 3 won'tthethicker- 3 wards, what kind of- 4 MR. O'HARE. Oh, Its not going to be some 4 And I am asking this maybe foranyone else In 5 thick sandwich. 5 the mom that would even consider doing this on 6 COMMISSIONER WHITE:Itlooks-Fromihls 6 their own homes. 7 diagram i1 looks- 7 MR.O'HARE: The technology now making - 8 MR.O'HARE: The common term solar sandwich 8 what's itcalled -poly -polypropylene tubing, e refers to the entire roof system from the rafters 8 which is now used for plumbing throughout the 10 up. 10 country, has a life of 40 years. 11 COMMISSIONER WHITE Yeah. The calls are in 11 But Iwould point out whenyou pay 50,000for 12 there too. How large are they? 12 a Mercedes, Ihat's obsolete in 15 years. Maybe not 13 MR. O'HARE I'm sorry? 13 a Mercedes, but my Ford. 14 COMMISSIONER WHITE The calls that- 14 So making an investment In something we know 15 MR. allARE: Oh, lhal's half Inch pipe or 15 is going to someday be replaced is sort of 16 threeefghths-I'M sorry, three-eighths LD. 16 comparable to any roof in town. Shingle mafsate 17 pipe. So Its only like this. 17 guaranteed or usually warranted far 12 to15years. 18 COMMISSIONER WHITE: Small. 10 Concrete Ile roofs 40 years. Ailhoughmost 19 COMMISSIONER GANGER: And hot watercireulates 19 concrete [He roofs are replaced In 2D years. So 20 through those pipes? 20 les really— IVs all a temporary solution. 21 MR.O'HARE. Its starts out cold. 21 COMMISSIONER GANGER: iwasn't'really debating 22 COMMISSIONER GANGER: I understand that. 22 the subject. I was really trying to understand 23 MR.O'HARE: Takes—Sorry. 23 when you that saw this system and said, gee, that 24 COMMISSIONER GANGER: It gels hot. 24 would be goad for me, the question 1 would ask is, 25 MR.O'HARE Il gels hot and goes to a thermal 25 and you would ask It I'm sure, is where the life 1 storage tank. Page 34 1 of this system? in other words, is this somethingga38 2 COMMISSIONER GANGER: Storage tank, which in 2 that's going to degrade quickly because the metal 3 turn heats your hot water? 3 will rust orwhoknows What - what Itis. 4 MR. O'HAREYes. IVs abackup tank. 4 1just don't think, you know -Again, good 5 COMMISSIONER GANGER: And whatyou'fe wilting 5 for you fortrying something new. But also good 6 to do is, I guess, invest In a probably more 6 for us that, you know, if this thing becomes a 7 expensive ro oring system In order to save money an 7 liability, that's not good for you or the town or 8 your hot water, as well as be a good cltizen, and 8 your neighbors. 9 all of the above. 9 So I'm just trying to get an understanding, 10 MR. O'HARE: Yeah. 10 Is there anything in this system that says Its ti COMMISSIONER GANGER: Again, I was trying to 11 terribly different from any other roofing system 12 figure out economics. You're paying $37,000 fora 12 that one might put an the same house in the same 13 roof. You'd be paying - You have to put a mof an 13 location? 14 soanarorlater. 14 MR.O'HARE: Yeah. I anticipate the 15 MR. O'HARE: Yes. 15 functionality of being 20 to 30 years. However, 16 COMMISSIONER GANGER: And whatyou're trying 16 advances in technology 1 think will make this 17 to do is get a double dip here. You put roof on, 17 system obsolete only because there are much more 18 and you get a benefit that in tum helps pay for 18 effective technologies that will be Invented. And 19 itself by healing your hot water, is that a fair 19 it's very possible in 20 years that will make 20 statement? 20 economic sense to tear the whole thing off and do 21 MR. O'HARE: Yeah. From my observation, 21 something even bailer. But I'm willing to do that. 22 renewable energy is not an economic treatise as it 22 MAYOR MORGAN: Okay. Any other questions of 23 Is. 23 Mr. O'Hare or his attorney relative to the issues 24 COMMISSIONER GANGER: I guarantee you will not 24 on appeal? 25 pay out on yourinveslmenL 25 MR. ROEDER: If I just might opera footnote. O ESQUIRE 800.211.DEP0 (3376) o i u T, u u c Fcmdra.4'nfulinnc rnm A40 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 37-40 1 We talk aboutthese three layers, two layer Page 37 1 COMMISSIONER GANGER: May I respond, beeR se 2 sandwich above and below the metal roof. The layer 2 turmoil was meant to mean they had lost some 3 below, the thermal below is really personal. 3 people, they have excessive workload relative to 4 ThaPs his personal power. But the layer above can 4 the people they've lost. I was really simply 5 actually generate electricity back to the town. 5 saying that there is a dsk that they will not do 6 MAYOR MORGAN: The compoMionofitreally 6 [he fulljoblhatiheymight otherwise have done. 7 doesn't seem to be the issue. The issue is 7 MR. O'BOYLE: Thal's exactly what I'm saying. 8 whether, as you stated it rather eloquently, the 8 COMMISSIONER GANGER: And I thinkilyou're 9 interlocal agreement and the code if vitiated by 9 going to ask that question of Palm Beach County who 10 state statute. it seems to me that's the basis of 10 used to do our permitting, It's the same there too. 11 your appeal, andthat'swhat weshould bevoting 11 MR. O'BOYLE:Iunderstand. Ilhinkyouand 1 12 on. 12 are saying identically the same thing. 13 MR. THRASHER: One final comment? 13 1know verylittle about what Mr. O'Hare Is 14 MAYOR MORGAN: Yes, sir. 14 looking for. I do know that the inlerlocal 15 MR.THRASHER: Reiterate the fact that my 15 agreement does saythalthe consbuclionelements 16 denial and review of the permit had nothing to do 16 have been yielded to Delray. 17 whalsoeverwilh the idea of prohibiting the 17 So I think this board really should not be 18 installation of any energy based renewable energy. 18 getting your ringers Into that pie, As to the 19 MAYOR MORGAN: Right, and you said that. And 19 slate statute and the local ordinances, I haven't 20 1 lhlnk the panel acknowledges that vie do offer— 20 looked at it, and I really don't knew. 21 the codes allows renewable energy equipment an 21 What I do know is the man hasn't had a roof 22 roofs. 22 foralongthne.Ithink weall agree thatwa're 23 The issue was whether this particular roof 23 seeing more and more metal roots. And I think 24 being a metal one would be permitted. 24 perhaps this would be agood opportunity. He's 25 Any other questions? 25 doing Its green roof, a metal roof. They're 1 Ilnot, dolhear amogPage 3B an? 1 highly attractive nowadays. Page,10 2 COMMISSIONER GANGER: I make the motion to 2 And I would ask the board to perhaps—maybe 3 sustain the appeal. 3 this Islhetimethat they,,breaktheirmaiden. 4 MR.O'BOYLE: Excuse me, Mr. Chairman, does 4 And I thank you all for allowing me to speak. 5 the public get a chance to speak an this 5 MAYOR MORGAN: Thank you, sir. 6 application? a Yes, ma'am? 7 MAYOR MORGAN: Mr. O'Boyle, you may speak. 7 MS. WIBBELSMAN: May I speakfor amoment, e MR.O'BOYLE: Thank you. 8 please? 9 MAYOR MORGAN: Let's withhold. 9 MAYOR MORGAN: You may. 10 COMMISSIONER GANGER: I'll withdraw the motion 10 M5. WIBBELSMAN: Good morning. Nancy 11 because of it being interrupted. 11 Wibbelsman. 12 MR. O'SOYLE: Thank you. And good morning, 12 MR. RANDOLPH: Move the mike down. 13 everyone. I'll just be very, very brief. 13 MAYOR MORGAN: Can you pull that mike down? 14 Mr. Ganger, Mr. Chairman, had made the comment 14 MS. WIBBELSMAN: Good morning, Nancy— No. 15 that Delray Beach is in turmoil. That being the 15 UNIDENTIFIED SPEAKER: You want to sing? 16 case, it becomes concerning to me. Because If 16 MS. WIBBELSMAN: You definitely don't want me 17 they're In turmoil and they cannot properly review 17 to do that. I don't need a microphone. 18 building plans, then they put us all into harm's 18 Just one question. You might ask to see a 19 way. And perhaps Idon't know what exactly -1 19 picture of IL We thought about doing a 20 used to know -the interfocal agreement says, but 20 sustainable roof in California. And we couldn't 21 if there is a termination provision or it there Is 21 find one that was not going to be really offensive 22 some type of remedial provision, you may want to 22 far our nelghbors. And sows elected nolto do it. 23 look atthat because, of course, we don't want to 23 We wanted to do it, A, to be sustainable. 24 have an operation In turmoil making major decisions 24 But, B, because you have hurricanes, we have 25 such as approvals. 25 earthquakes. We thought ltwouldbegreat tohave O ESQUIRE 800.21I.DEPO (3376) C L U> I a„= EsaulreSDlullons.com A41 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 41-44 1 some at our own energy in case of a natural Page 41 1 exactly Ike any other metal roof, except it's a Page 43 2 disaster. But we decided that we would cause a 2 little bit thicker because il'sgot the thermal 3 neighborhood disaster in complaints if weput it 3 down underneath which is sandwich ad. 4 up, so we waked away from It 4 MAYOR MORGAN: Okay. Thankyou. 6 If you have an opportunity to see photographs 5 MR. RANDOLPH: Why don'lwebecause olwhat 6 before you vote, I would recommend it. 6 Mr. O'Boyle sold, and I Mark him for printing IIW 7 MAYOR MORGAN: Thank you. 7 out, ask for any ex parts communications inm9W 8 MR.O'BOYLE: Excuse me, Mr. Chairman, astoa 8 to this matter before you haveavole. 9 point oforder, Ihad forgot tosay this, and 1 9 MAYOR MORGAN: Have there been any exparle 10 apologize. 10 communications by any commissioners relative to tt COMMISSIONER GANGER: Couldyou go back to the 11 this application? 12 microphone, please? Only because M. the onlyway 12 COMMISSIONER STANLEY: No. None. 13 you can record your comments. 13 MAYORMORGAN: No? Ilhinkwe- 14 MR.O'SOYLE: Thars line. Again I apologize, 14 Mr. Boardman? 15 but I meant to ask this when I was here. Was 15 MR. BOARDMAN: May I just ask aquestfon? 16 anyone sworn in? 16 MAYOR MORGAN: f guess have you been sworn in7 17 MAYOR MORGAN., Good question. 17 MR.BOARDMAN: Iswear totell the whole truth 18 MR. RANDOLPH: No, they were net. 18 and nothing but the truth. 19 MAYORMORGAN: Error. Idon'tthinklhey 19 MAYOR MORGAN: Thankyou, air. 20 were. Let's do B [Iwo can a retroactive— 20 MR. BOARDMAN: It I'm hearing what's going an, 21 MR. RANDOLPH: Sure. 21 I'm hearing asilualfon where, to narrow down to 22 MAYOR MORGAN:—swearing In. 22 one issue, whether or not lherat preemption by 23 MS. TAYLOR: Stand. Those that have spoken, 23 state law. 24 or that want to speak, please stand. 24 Is it the practice of the commission tomake a 25 (Oalhadministered.) 25 decision on an issue likethatwilhoulihe 1 VARIOUS MEETING PARTICIPANTS: 1 do. Page 42 1 commission and the town having the opportunity to Page 44 2 MR. RANDOLPH: And in regard to everything 2 get— have a legal opinion that that is a 3 there been said. 3 legitimate way to view It? There has been 4 MS. TAYLOR: Right. 4 preemption? 5 VARIOUS MEETING PARTICIPANTS: I do. 6 MAYOR MORGAN: Well, itsoems to me there vas 6 MAYOR MORGAN: Thank you, Mr. O'Boyle. 6 a finding made bythestaff thal'sbeen appealed. 7 MR.O'BOYLE: Yau'revery welcome. 7 Argument was made by counsel for [he applicant End 8 MAYOR MORGAN: Any other comments from the 8 responded to by slag. 9 panel? 9 1 think if within cur— io Ifni, then lel'sturn toamotion onthis. 10 MR.'BOARDMAN: Just a question of how you 11 COMMISSIONER GANGER: Ithink 11 usually handle something like this. You hada 12 Mrs. Wibbelsman's comment deserves an answer. Is 12 legal opinion here on behalf the appellant. 13 there a picture other than the one that was In our 13 1 Just wonder is it customary to rely an that 14 packet? 14 opinfonrather than having your own? Thal'smy 15 COMMISSIONER STANLEY. I asked foran 15 question. 16 example— 16 COMMISSIONER GANGER: Alayman'sanswertothe 17 COMMISSIONER GANGER: Yeah. 17 question is Idon'tthinkthishas ever happened 18 COMMISSIONER STANLEY. —broadly. And, you 18 before in the amount of lime that I've been here. 19 know, it was stated l guess it was by the applicant 19 MAYOR MORGAN: Yeah. That's a point I was 20 It was too new, hadn't been in the state. Not 20 going to make. 21 to — natio misquote. 21 COMMISSIONER GANGER: And 1 guess I gel back 22 MAYOR MORGAN: There is sample equipment 22 to the first question that I asked of the town 23 attached to our packet. 23 attorney iswhal'snext? Because really what 24 MR.ROEDER: Yeah. There Is sample equipment, 24 they're asking for is the opportunity to be able to 25 As far as a finished product, Itlooks almost 25 take this concept tothe Delray Beach bulding du O ES QUI � I ', 800.211.DEPO (3376) s n L u 1, e e s Far1Wra.4n1uffnna rnm A42 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 45-48 1 department who will have to decide on our be alta 46 1 all the rebuttal, and have you heard from your Page,17 2 whether or not We constructable. And then it 2 staff? 3 comes back to the Architectural Review and Planning 3 MAYOR MORGAN: I believe we have, uh•huh. 4 Board who has to decide whether or notal meets the 4 That position was clarifying a malign. 5 broader criteria of compatibility and so forth. So 5 MR.RANDOLPH: In answerto your question, 5 It's kind of a step-by-step process. 6 yes, stale statutes can preempt local ordinances. 7 MAYOR MORGAN: 1 don't think so. I think what 7 The issue has been stated, I think byyour chair, 8 they're saying, the ordinance described it rather 8 is that you look at the ordinance that's been- 9 succinctly, that our code is not relevant to this. 9 statute thars been cited,163.04, which says that 10 As long as there is renewable energy equipment to 10 notwithstanding any provision of this chapter or 11 be placed on that roof, and I think Mr. Roeder 11 other provision of general or special law, the 12 acknowledged it, frankly it doesn't matter what 12 adoption of an ordinance by agoverning body as 13 they put on there so long as it would be otherwise 13 those terms are darined in this chapter which 14 compliant wflh building codes. And that's the 14 prohibits or has the effect of prohibiting the 15 issue before us. 15 installation of solar collectors, clotheslines or 16 It seems to me if you're persuaded by that 16 other energy devices based on renewable resources 17 argument, then the statutory documentation that was 17 is expressly prohibited. 18 Included in our packet that you can vote in - In 16 So you should apply that law based upon the 19 Ihatdireclion. 19 evidence that you heard here this morning and make 20 If you're not based on the testimony of the 20 a determination as to whether or not the appellant 21 'town manager and Mr. Minor, then you would vote in 21 is correct that the state law precludes 22 the other direction. 22 Mr. Thrasher from having made the decision fie made- 23 COMMISSIONER GANGER: Uh-huh. Well, it's 23 to not allow this particular roof. 24 certainly a matter of public record thatthe state 24 MAYOR MORGAN: Does that clarifyforyou? 25 does encourage energy renewable building code. 25 COMMISSIONER ORTHWEIN: Absolutely. 1 That's baked into what the slate - It's in the Page 4s 1 MAYOR MORGAN: Lers proceed. There was a s 2 policy. If Mr. Hager had still been here, he would 2 motion being formed. 3 have probably supported the factihatthis Is 3 COMMISSIONER GANGER: I forgot what I was , 4 something the state wants done. 4 going to say. 5 MAYOR MORGAN: I believe there was testimony 5 MAYORMORGAN: Well, somebody else want to 6 that we do followthal- thatstatutorydirection 6 take a slab at it? 7 as well. We do allow energy saving equipment on a 7 COMMISSIONER STANLEY: I have a quick 8 roof. We have procedures for it. 8 question. I'll try not to delay, Mr. Mayor. 9 The question is do we void the code with 9 On the appeal from this part of this pmcess, 10 respect to roofing altogether because of the 10 is there -The final decision has to be made 11 renewable energy statute and the interlocal 11 today, Mr. Randolph, as far as the vole on this 12 agreement cited by Mr. Reeder. 12 issue by this board hearing the appeal? 13 COMMISSIONER ORTHWEIN:Isltalruefactthal 13 MR, RANDOLPH:Ifyou're not prepared based 14 the stale has precedence over anyone else? That's 14 upon the evidence that you've heard to make a 15 the only question.. 15 decision today, you could defer it for further 15 COMMISSIONER GANGER: Well, the language of 16 testimony. But It should be based upon further 17 this- 17 testimony and not in regard to any Independent 18 MR.RANDOLPH: What was the question? 18 investigation that you might make In regard to 19 MAYOR MORGAN: Is it accurate that slate 19 this. It should he based upon the testimony Ihal's 20 statutes take precedence over local ordinances. 20 been presented by the appellant and by evidence 21 COMMISSIONER ORTHWEIN:Ithink thal'swhat 21 that has been presented by the town manager. 22 Mr. Boardman was asking. 22 COMMISSIONER STANLEY: Thank you. 23 MR. RANDOLPH: Yes. But can we establish 23 MAYOR MORGAN: And so thars really the Issue. 24 something? Are you in executive session now? Have 24 Looking on page one, the section the town attorney 2255 you heard all from the public, and have you heard 25 read, Is whetherthe adoption of an ordinance that /.1� ESQj DIRE 800.21 i.DEPO (3376) �i� EsauireSelutions.com A43 PUBLIC HEARING May 09, 2014 TOWN OF GULF STREAM, FLORIDA 49-52 1 is our code prohibits or has the effort of Page 48 i MR. RANDOLPH: You also mentioned lha[waash 2 prohibiting solar Collectors and other—clothes 2 It be moved Into the record the wdtofcertlaari 3 lines and other energy devices based on renewable 3 on the past application and the town manager's 4 energy. In other words, does our code do that. 4 report 5 If you believe It does, then you vote In one 5 COMMISSIONER STANLEY: Right Waaskto be 6 direction. If you believe that it does not 6 put into the record the writ ofcertlorariand the 7 prohibit, then you vote in the other. 7 town manager's report. B COMMISSIONER GANGER: Well, I think there the 8 MAYOR MORGAN: Isthere a second? B Issue may very well be that portion of our code 9 COMMISSIONER GANGER: Second. 10 which says it must be — must not be visible from 10 MAYOR MORGAN: Rile? 11 the street. 11 MS.TAYLOR: CommissionerGanger7 12 MR. RANDOLPH: That's not the issue. The 12 COMMISSIONER GANGER: Yes. 13 issue— 13 MS.TAYLOR: Commissioner Stanley? 14 COMMISSIONER GANGER: I realize that's not the 14 COMMISSIONER STANLEY: Yes, 15 Issue. But I'm trying to think a step ahead, which 15 MS.TAYLOR: Commissioner While? 16 Is If one were able— Irs just depending an which 16 COMMISSIONER WHITE No. 17 way his house is. Where is the south? And where 17 MS.TAYLOR: CommisslonerOrthwein? 18 do you want to face? You know, what are -- what 18 COMMISSIONER ORTHWEIN: Yes. 19 are we getting ourselves In for here? 19 MS.TAYLOR: MayorMorgan? 20 MAYOR MORGAN: The issue Is whether or not 20 MAYOR MORGAN: Yes. 21 [his applicant could heat water through an energy 21 Thankyou very much. 22 saving piece of equipment on his roof in the Town 22 Wall move on to reports. Mr. Brandon? 23 of Gulf Stream. 23 (The proceedings on this issue were 24 COMMISSIONER GANGER: Uh•huh. 24 concluded.) 25 MAYOR MORGAN: And that testimony is, indeed, 25 1 he couid, but not by this method because it Page 50 1 c s n = x r : e a r e Page 52 2 conflicts with the code's prohibition against P 3 roots. Theta It. a sarc or mmh 4 The applicant cites the slate statute that 4 mm¢r ar PALM arxd 5 counsel and I just read and says [hat he believes s 6 that code provision is a prohibition. p 7 The town managersays, no, it's not a 7 =. xamlaaa Lu r nar=«aa Paar�ro ns a prohibition, we allow It Just notwith a metal a Nvparenr, anra at imacraa ac .-.fie, aaaciry that x waa 9 roof. 9 autharlacd w aad dd ==Wraphica3ly s = the 10 That's what is before us right now. So if 10 rasepelnp pmeeedlay and mac me craav¢rpc L- a ma 11 someone would like to phrase the motion an the ss avd aansdaGc :uaro Of ay accaagrarw aarva. 12 appeal of this administrative decision, l would 22 Dated m!a ]S dq ae rW, 2M. 13 appreciate iL 14 COMMISSIONER STANLEY:Okay. I'll make a 15 motion to deny the applicant's appeal to place a 15 is solar sandwich metal roof on his home in the Town Itaehleea Saar. pen Is coax Aapmtea 17 of Gulf Stream pursuanito the application before 17 18 us. as i9 • MR. RANDOLPH: And would you in the motion " 20 slate your reason for the record? 30 21 COMMISSIONER STANLEY: The reason being that 31 22 the — that the Town of Gulf Stream under its local zz 23 ordinances do as allow for installation of solar 24 collectors, clothes lines and other energy devices z^ 25 based on renewable resources. u ESQUIRE 800.211.DEPO (3376) p a ,. a r, a a: EsnuireSolutlans.ram A44 1 � , rage 1 011 From: warty mae, <hMnor@udkstudios.com> Date: Friday, February 14, 2014 10:03 AM To: 'Sill Throsbee'<bffimher@gulf-stream.arg> Cc: "Freda Defosse" <defbssc@guI&strcamorg> Attach: 2520 Avenue An Soliel Solar Sandwich Roof System Memo 021414.pdf Subject: 2520 Place An Soleil - Solar Sandwich Bill, Attached for your review and use is my memorandum regarding the proposed solar sandwich roof system at 2520 Avenue Au Soleil. If you have any questions, comments or revision, Please feel free to 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 33401-5759 561-366-1100 url=n thd Offices at CilyFibice 14bkh p : 477S RiasgMaryAv6nue,tWL.*125 L (S61)8`66.1111 desigh wbif Rosemary Fibr-scia.33401 wWW.U8k1Mudfi0.g.`cori1 la I dri I , , . . - . - S T'q D I apilj ,Urban P Iona Inft and Dasign I landscape A rch Ito cht re I Coai m u hl�of Ida Giapfi lei A45 5/7/2014 ' 11 MEMORANDUM ki tday S T0: William Thrasher TUDIOS' Town Manager Urban Planning and Design Landscape Architecture FROM: Marty R.A. Minor, AICP Communication Graphics DATE: February 14, 2014 RE: 2520 AVENUE AU SOLEIL - SOLAR SANDWICH ROOF SYSTEM APPLICATION 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 solarthermal collector network consisting of thermal purlins and tubing. The proposed solarsandwich roof system will be used to generate powerforthe 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 notsupport 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 an 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 CltyPlace West Palm Beach, FL 33461 551.366.1100 561.366.1111 fax www.UDKstudios.com H:1J0881Gulf Slream_94.61212526 Avenue Au SoIe1112520 Avenue Au Soliai Solar Sandwich Roof System LCC35 Memo 021414.doo A46 Mr. William Thrasher February 14, 2014 252D 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 undertheTown'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. A47 rage 1 01.3 rrom: "Baird, Thomas V' <fBand@jonesfbsteccom> Date: Wednesday, March 26,2014 10:33 AM To: "Bill Thrasher" <bthrasher@gulf-slream.org> Subject: FW: Gulfstream- 2516 Ave. Au Solei Bili, please see the email from Marty below. I will work on his staff report today and incorporate this Information into it. Please remind me of the date you need his report for distribution to the Commission. Also, l discussed the sign code with Skip yesterday and he has requested that I take the lead on this matter. I am beginning that effort by looking at some codes from other communities that I understand have recently amended their codes because of threatened litigation. I probably will not be able to begin drafting anything until next week. JOPTESFOSTER 1"Ir\zn1 eM1A .r.L Thomas J. Baird Florida BarBoard Certified City, County and Local GovemmentAttorney Direct Dial: 561.650.8232 1 pax:561.746.6933 I tbakdfalionrsfostecrom Jones, Foster, johnston & Stubbs, P.A. 801 Maplewood Drive, Suite 23-A Jupiter, Florida 33458 561-659-3000 1 wwwionesfostercom U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us ate not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Semice. Incoming emails are filtered which may delay receipt. This email is personal to the named recipients) and may be privileged and confidential. If you are not the intended recipient, you received this in rrmr. If so, any review, dissemination, or copying of this email is prohibited. Please immediately nodE, as by email and delete the original message. From: Marty. Minor [mailto:MMinor@udkstudios.com] Sent: Wednesday, March 26, 2014 9:25 AM To: Baird, Thomas]. Subject: Fwd: Gulfstream - 2516 Ave. Au Sole[ Tom, I had my office confirm thatthe solarsandwich roof is NOT permittable by building code. See below. Cheers, marty Sent from my iPhone Begin forwarded message: From: Nicole Simpson <nsimoson@udkstudios.com> Date: March 25, 2014 at 4:15:36 PM EDT To: Marty Minor <MMinor@udkstudios.com> Subject: RE: Gulfstream - 2516 Ave. Au Solei A48 5/7/2014 rage L or 3 You can deal with this when you get back, but figured I would email now and you can read later so I don'tforget. Ok, I finally heard hack 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. Itis 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, (FEU AP Urban Design Kilday Studios 477 South Rosemary Avenue Suite 225—The Lofts at Cilyplace West Palm Beach, FL 33401 P 561/366-1100 x116 F 5611366-1111 nsimpson@udksludlos.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 mmider the environment berore pdntin6 this e-mail From: Marty Minor Sent: Tuesday, March 25, 2014 9:58 AM To: Nicole Simpson Subject: Re: GuiNtream - 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 Sentfrom my (Phone On Mar 24, 2014, at 11:40 AM, "Nicole Simpson" <nsimosonCdudkstudios.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. http://www.eneraysMr.aov/index.cfm?rtax credits.tx index A49 5/7/2014 rags j Ui j 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 far?) http://www.cleanenergy2uthorftv.com/solar-energy-news/englert introduces-pv- solar-h ot-water-roof-110911/ This website gives you solar incentives and rebates by state, county, city and utility as well as federal government solar incentives and rebates: http://www.clea n anergya uth o rity.com/solar-rebates-an d -incentives/ California is providing incentives to businesses and homeowners to go solar through a program they are trying to implement by 2016 http://www.gosclarcalifornia.ca.gov/about/index.php Nicole R. Simpson, LEEO AP Urban Design 13ldoy 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 nsimoson@udkstudtos.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 mnslderthe envimnment before printing this e-mail A50 5/7/2014 WWAMIMM M10M WAI KI-rIT11 TO: William Thrasher Town Manager FROM: Marty R.A. Minor, AICP DATE: March 31, 2014 kt I d� 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 an 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 thatthe 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 5011211) 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. RosemaryAvenue Suite 225 -The Lofts at CityPlace West Palm Beach, FL 33401 561.366.1190 561.365.1111 fax www.UDKstudlos.com H:UOBS\Gulf SbearrL94-01212520 Avenue Au So1e1112620 Avenue Au Soleil Solar Sandwich Appeal Staff LCG35 Reportdoc A51 Mr. William Thrasher February14, 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 pursuantto 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. A52 ����C ' �� rage 1 ui i rrom: "Bill Thrasher" <bhrasher@gulf-stream.arg> Date: Tuesday, April 01, 2014 2:22 PM To: "Rita Taylor"<RTaylor@gulf-stream.org> Attach: 2520 Avenue An Soleil Solar Sandwich Appeal S1affReportpilt 2520 Avenue Au Soleil Solar Sandwich Appeal StaffReportdoc Subject: FW: solar sandwich memo From: Bill Thrasher Sent: Tuesday, April 01, 20141:32 PM To: Rita Taylor Subject: FW: solarsandwich memo For administrative challenge. From: Marty Minor [mailto:MMlnorftudkstudios.coml Sent: Monday, March 31, 2014 2:34 PM To: Bill Thrasher, Balyd, ThomasJ. Subject: RE: solarsandwich memo Bill, Here are the attachments. Thank you,marty Marty R.A. Minor, AICP Urban Design Kilday Studios The Offices at City Place North 477 South Rosemary Avenue, Suite 225 West Palm Beach, Florida 33401-5758 561-366-1100 urban lfi'Efbfflces 6t blyploce Norifi phi p61) 3661700 mac+ h 477, 5 Rosp n(gry gvgnue, Sui[a:225 f (561) 366 7111 gl 1 Wast Palrri Beach F�arlda, 33A01 www U'dksiudios.dom 15 - 5T... .. Vr6an Plannin's add neslgn J -Landscape Arcliftecturc I Cotomaiikdfjan Gfapj:'f.Fs From: Bill Thrasher rmalito:bthrasherCulaulf stream.oral Sent: Monday, March 31, 2014 2:08 PM To: Baird, Thomas J.; Marty Minor Subject: RE: solar sandwich memo I can'tfindan attachmentfrom Marty. From: Baird, Thomas.]. [mailto-TBalyd@ionesfoster.coml Sent: Monday, March 31, 2014 2:00 PM To: Marty Minor A53 5/7/2014 I Gr,Y L ul J Cc: Baird, Thomas J.; Bill Thrasher Subject: Re: solar sandwich memo Thanks. Sent from my iPhone On Mar 31, 2014, at 1:51 PM, "Marty Minor" <MMinor(atudkstudios.com> wrote: Tom, Happy Opening Day to you, too. I have received the memo and have review it. It looks great. In response to your question. The table I am referencing in within Section 70-187 of the Town Code. Bill, Attached for your use Is the appeal memorandum in Word and PDF formats. Please let me know if you need anything else. Thank you, Marty Marry 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 <Image002.Jpg> From: Baird, Thomas 3. rmallto:TBaird(a)ionesfnster.coml Sent: Monday, March 31, 201411:24 AM To: Marty Minor Cc: Bill Thrasher (bhhaasher@gulf-stream.om Subject: solar sandwich memo Welcome back, and to opening day. Please confirm you received my proposed staff report for Gulf Stream. After you have reviewed it let me know whether it is sufficient and you can transmit It to Bili Thrasher. Thanks. <Image003.jpg> Thomas j. Baird Florida Bar Board Certified City, County and Load Government Attorney DireetDial: 561.650.8232 1 Fa:c 561.746.6933 1 tbairdRionesfosteccom Jones, Foste; Jolmscon & Stubbs, P.A. 901 TAaplewocdDuve, Suite 22 A Jupiter, Florida 33458 561-659-3000 1 www.ionesfostercom LT,S. Treasury Regulation Circular 230 requires us to adtise you that written communications issued by its are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Servicc. A54 5/7/2014 Incoming emails are filtered which may delay receipt This email is personal to die named recipient(s) and may he privileged and confidential. If you are nor die intended recipient, you received this in error. If so, any review, dissemination, or copying of tills email is prohibited. Please immediately notify us by cintil and delete the original mcssag� <2520 Avenue Au Soleil Solar Sandwich Appeal StaffReportpdf> X2520 Avenue Au Soleil Solar Sandwich Appeal StaffReport.dor> A55 5/7/2014 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA APPELLATE DIVISION (CIVIL): AY CASE NO: 2014 -CA -007327 CHRISTOPHER F. O'HARE, Petitioner, V. TOWN OF GULF STREAM, Respondent. Opinion filed: WR $ 7 2015 Petitioner for Writ of Certiorari from the Town of Gulf Stream. FOr Petitioner: Nick Taylor, Esq. The O'Boyle Law Firm 1286 West Newport Center Drive Deerfield Beach, Florida 33442 ntaylor(i)obovlelawfirm.com Louis L. Roeder, Esq. 7414 Sparkling Lake Road Orlando, Florida 32819 lou(@Iouroeder.co lror Respondent: Kelly A. Gardner, Esq. Jones Foster Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida 33401 kgardner a()jonesfoster PER CURIAM. BARKDULL, OFTEDAL, and GOODMAN, JJ. concur. From: Bill Thrasher Sent: Wednesday, December 2, 2015 1:49 PM To: Chris O'Hare<chrisoharegulfstream@gmail.com> Cc:'Randolph, John C.' (JRandolph@jonesfoster.com) <JRandolph@jonesfoster.com>; Matias, Sally (SMatias@jonesfoster.com) <SMatias@jonesfoster.com>; Rita Taylor <RTaylor@gulf-stream.org>; Kelly Avery <kavery@gulf-stream.org> Subject: RE: GS #2066 (URGENT -Public Record Request - discovery of evidence for Code Hearing of 12- 4-15) In addition to the documents already provided you in your public records request, please see the attached pictures which be presented at the Special Magistrate hearing this Friday. From: Chris O'Hare[mailto:chrisoharegulfstream@gmail.com] Sent: Wednesday, December 2, 2015 3:38 PM To: Bill Thrasher <bthrasher@gulf-stream.org> Subject: Re: GS #2066 (URGENT -Public Record Request - discovery of evidence for Code Hearing of 12- 4-15) Mr. Thrasher: Can you please respond to my request in more clear language. I asked you specifically: When will you know what records you intend to present and when will those records be available for my inspection that I may use them to prepare an adequate defense? May I inspect each of those records as each becomes available? You responded: To the extent that additional documentary evidence is intended to be presented you will be afforded an opportunity to view same before it is presented to the Magistrate. My question was not "if' but "when." Your evidence may well require me to search for rebuttal evidence. Depending on the scope and complexity of your evidence, my subsequent search may require extensive time and effort by me and my attorney. Can you please be more specific about when you will finally produce the public record of all your evidence for my inspection. You also claim: This does not preclude the Town from presenting any rebuttal evidence deemed necessary in response to your case which is undetermined at this time. My request is to examine all evidence including any possible rebuttal evidence. When will you determine what rebuttal evidence is to be presented to the Special Magistrate? Again I ask you to tell we when I can expect to be allowed to inspect these records and ask that you please provide each of these records as soon as they are available. Sincerely, Chris O'Hare /�I bA Y n r,w,. y' �,,. � � '. `� • V � b � ` t. t ^ '� � - �iq '�F J 1 �� r i `. . � .�. y i �., � � �� � �,j � � 4V i. � "� • .-� t '0_'-t c -. _ ., � ���� ��` � Y � �� \\_ .� J-� ,q ,r,a., .> r � - ,` w.�,, ...rA ;- 0 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail December 1, 2015 Chris O'Hare [mail to: chrisoharegulfstream@gmail.com] Re: GS #2066 (URGENT -Public Record Request - discovery of evidence for Code Hearing of 124-15) (1) ALL records the Town intends to present to the Special Magistrate during the Code enforcement hearing against O'Hare scheduled for Dec. 4, 2015. (2) ALL records that support, reference or are related to the records the Town intends to present to the Special Magistrate during the Code enforcement hearing against O'Hare scheduled for Dec. 4, 2015. (3) All staffreports, consultant reports, photos, communications and any other records that related to the property located at 2520 Avenue Au Soleil AND the alleged violations that are the subject of this hearing. (4) All communications between the Town* and anyone else (including communications between Town entities) which wholly or partly concern this hearing or the alleged violations. *The word Town as used herein means anyone who works for the Town or who holds an elected or appointed position with the Town including Commissioners, the Mayor, all Town employees and the entity that claims to be the Town Attorney. Dear Chris O'Hare [mail to: chrisoharesulfstream(a,email.coml, The Town of Gulf Stream received your public records request on November 25, 2015. You should be able to view your request at the following link httv://www2.gulf- stream.ors/weblink/O/doc/73323/Pagel.aWx. In future correspondence, please refer to this public records request by the above referenced numbers. In response to parts 1 & 2, the Town objects to your request as it fails to identify with sufficient specificity the records that you seek. Subject to its objection, the Town responds that it is in the process of preparing for said hearing and does not know fully at this time what records will be presented to the Special Magistrate during the code enforcement hearing. See, however, the records available to date which are responsive to this request at the same above link as well as the following link: http://www2.gulf-stream.org/weblink/O/doc/37088/Pasel.asi)x. Also, all applicable provisions of the Town Code of Ordinances which can be found at: https://www.municode.com/library/fl/eulf stream/codes/code of ordinances. In response to parts 3 & 4, this is a voluminous request, as there are numerous records in the possession of the Town relating to 2520 Avenue An Soleil and related to the alleged violation. The Town may incur expenses for the production of documents. You are responsible for the cost of duplication, as allowed by Chapter 119, Florida Statutes, and you may also incur a special service charge for the labor needed to respond to this request. The Town has already spent an excess of 15 minutes on this request. The Town estimates the need for 2.5 hours of administrative support at $40.51 per hour and the Town's outside counsel requires .5 hours of administrative support at $50.00 per hour, the labor cost of the personnel providing the service, per Fla. Stat. § 119.07(4)(d). If the costs of producing these documents will exceed your deposit, the Town will provide you with an initial production of responsive records and an estimate for the production of any additional responsive records. If the costs of production are less than the deposit, the Town will provide you with the responsive records and a refund. (2.5 hours @ 40.51=101.28) + (.5 hours @ 50.00 = 25.00) = Deposit Due: $ 126.28 in cash or check. Upon receipt of your deposit, the Town will begin researching these records to respond to your public records request in a reasonable amount of time. If we do not hear back from you within 30 days of this letter, we will consider this closed. Sincerely, Town Clerk