HomeMy Public PortalAbout05 04 11 (Slominski)C MINUTES OF THE CODE VIOLATION HEARING HELD BY THE CODE ENFORCEMENT SPECIAL
MAGISTRATE OF THE TOWN OF GULF STREAM ON WENDESDAY, MAY 4, 2011 AT 10:00 A.M. IN
THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA.
Special Magistrate Laura Donlon announced that the case being heard is Case No. CE 2-11 addressing a
code violation at 920 Indigo Point, Place An Soleil Subdivision, Gulf Stream, Florida, that is owned by
Edward and Joyce Slominski. She asked the Petitioner, Town of Gulf Stream, to present the facts of this
case.
William Thrasher, Town Manager for the Town of Gulf Stream, presented a return receipt signed by
Edward Slominski for the delivery of the Notice of Agenda on May 1, 2011 at 11:15 A.M. by a Gulf
Stream Police Officer. The Special Magistrate accepted documents as Exhibit #1 for the Town of Gulf
Stream. The violation described in Exhibit #1 is that fences at this address were constructed without
obtaining a building permit in violation of Ordinance 009/9 amend
A copy of a Police Incident Report dated August 12, 2010 completed by a Code Enforcement Officer,
with photos attached showing the fence installation process occurring at 920 Indigo Point, were
presented. Mr. Slominski asked to view the Report and photos. The Special Magistrate accepted the
Incident Report as Exhibit #2 for the Town of Gulf Stream.
A Letter of Notice of Violation dated October 5, 2010 which was hand -delivered by Officer David S.
Ginsberg and sited the violation and sections of the Code was presented. The Special Magistrate
accepted the Letter of Notice of Violation as Exhibit #3 for the Town of Gulf Stream.
Mr. Thrasher presented a return receipt signed by Edward Slominski dated March 27, 2011 for the
delivery of Statement of Violation and Notice of Hearing dated March 25, 2011, listing the owners of
the property and describing the violation and Code Sections as follows: Ordinance 009/9 amending G.S.
Code Sections 42.26 through 42.28 adopting the Delray Beach related codes and the State of Florida
Building Code Section 104 by Reference, all of which relate to obtaining a building permit prior to
commencing work. Fences were constructed without obtaining building permits, first inspection was
August 12, 2010, and first notice to owner was October 5, 2010. Mr. Thrasher said the applicable
Ordinances are attached to that Statement. Special Magistrate accepted the package of documents as
Exhibit #4 for the Town of Gulf Stream.
Town Manager Thrasher stated that the fence as originally installed still exists and, from the first Notice
to present, he had conversations with Mr. Slominski who said he would take care of the matter, but was
not able to do so at the moment due to health and care of Mrs. Slominski.
Mr. Edward Slominski testified that construction of an addition to his home began in late November,
2009. His plans were approved on first review, there were no changes or modifications required, Mr.
Thrasher made no particular notes at that time, and the plans, a portion of which he has with him today,
were duly entered into by The Town of Gulf Stream, Palm Beach County and the City of Delray Beach.
Mr. Slominski said the plans indicate an existing fence and that fence was taken down to allow for the
construction of the addition that would extend past the fence, but it was referenced in all plans that were
approved that the fence would be removed for construction and reinstalled. Mr. Slominski said he has
three statements from various contractors indicating what transpired and their understanding of what the
process allowed. The fence contractor did not believe an additional permit would be required for a fence
to come down and be reinstalled after construction. Palm Beach County did an inspection and issued a
Certificate of Occupancy (C/O) prior to the fence reinstallation and, by County Code, a fence must be in
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May 4, 2011 Page 2
Cplace where a pool exists. Shortly after the C/O was issued, the fence contractor reinstalled the fence
believing he was working under the general contractor's original permits. Mr. Slominski stated that,
after Mr. Thrasher said his fence was too high, he went around the area and measured other fences
ranging in height from 55" and 72" which were constructed either during or after his construction. He
said he considers his fence a privacy fence because it screens the hot tub and pool equipment from the
street, and the construction material used and the landscaping are consistent with the requirements of the
Town. He said Mr. Thrasher requested that he come into compliance within 3 to 4 days, but could not
do so at the time due to his wife's health issues. Mr. Slominski said he started the permit process a
couple of weeks ago.
When asked by the Special Magistrate if he had copies of the referenced statements by contractors for
the record, Mr. Slominski replied that he would submit the copies of the letters and said he received an
email from the fence contractor stating that the fence permit has been with the City of Delray Beach for
about 10 days and he would be happy to email it to the Special Magistrate. The Special Magistrate
asked Mr. Slominski to read the email into the Record. Mr. Slominski stated that the email is from Bill
Cochran and read it as follows: "Can you call me please regarding my statement. Ed, I have found the
problem with your permit, however there is a slight issue. Apparently, permits for the Town of Gulf
Stream are reviewed and issued by Delray Beach. The railing manufacturer filed a permit application
there however it was rejected as apparently the permit app needs to be reviewed first by the Town of
Gulf Stream and was never done. Subsequently, the application has been sitting in a file waiting to be
picked up and routed correctly. I have spoken with them and they will have someone here today to pick
it up and take it to Gulf Stream for review and then take it back to the City of Delray where it will be
processed. I have attached a copy of the permit application in hopes that it will resolve the immediate
issue. For lack of a better explanation, there was a mix-up and it will be resolved as soon as possible.
Please call me if I can be of further help or if you need me to come to your hearing." Signed off by Bill
Cochran, Project Manager, MGM General Contracting. Town Manager Thrasher asked Mr. Slominski
to repeat the last phrase of the email. Mr. Slominski did so, stating that Bill Cochran worked under
Anthony Lauria of BP Services Group, Inc., the general contractor, who is registered with the Town. He
said all plans were approved by Palm Beach County and the City of Delray Beach.
The Special Magistrate asked Mr. Slominski to bring the plans to the table for review. For the record,
Mr. Slominski pointed out several items including multiple Town of Gulf Stream approval stamps, Palm
Beach County approval stamps, the fence line prior to removal on the property easement side, stating
that four surveys indicate they are in compliance with all easements, the position of the proposed guest
quarters which made it necessary to remove the fence, the location of where the hot tub was installed,
the section of the fence that was removed, and the location of the fence that was reinstalled. Mr.
Slominski said the building and the hot tub exist today and he has pictures to indicate that. He asked
Mr. Thrasher to stipulate that the installation of the hot tub was approved. Mr. Thrasher replied that it
was.
The Special Magistrate asked Mr. Slominski to clarify that, with regard to the new structure, the original
fence that went across the front, basically crossing the location of the new guest quarters, now goes to
the wall of the structure. Mr. Slominski replied that it does. He submitted the letter from the pool
contractor, the notarized letter from Mr. Cochran and the letter from Mr. Lauria of BP Services Group,
i with a Palm Beach County permit inspection printout attached, demonstrating that all permitting and
work was done in accordance with the plans. Mr. Slominski also produced photos fences on several
properties in his neighborhood, all over 4 feet in height. The Special Magistrate accepted the letters
from the contractors and the photos as a composite of Exhibit #5 for the Town of Gulf Stream.
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May 4, 2011 Page 3
Mr. Thrasher asked to see the photos taken by Officer Ginsberg for the Town. Mr. Slominski stated that
he was not aware of this particular Police Report and asked to review the Report and photos. He asked
if the photos were taken by Officer Ginsberg on his own or was it called in. Clerk Taylor replied that,
according to the Report, Officer Ginsberg stated "I observed."
Mr. Thrasher stated that the Town has the set of documents that went through the Architectural Review
and Planning Board (ARPB) and the Town Commission approval process, which were approved. The
Permit Application with construction drawings were submitted to the Town, the Town verified that what
was applied for was allowed and approved and the Town signed off on the permit application and
documents. Mr. Thrasher then summarized a survey of the property dated July 2008 with Mr.
Slominski, pointing out a fence referenced by Mr. Slominski which runs down the side property line
toward the street and attaches to the rear section of the an existing building. Mr. Slominski said that was
pre -construction. Mr. Thrasher asked what the fence material was and Mr. Slominski said it is chain
link up to the gate and then it is wrought iron. He said it is in the same place, running east to west and
attaches to the house, but the house was extended 20 feet so the fence is shorter. Mr. Thrasher asked
Mr. Slominski to confirm that it was moved and it is a different material. Mr. Slominski confirmed that.
Mr. Thrasher said the approval process did not indicate the fence would be removed and then re-
installed in the current location. Mr. Slominski said a generator was included in the plan which has not
yet been installed, but the generator pad exists for future installation. The Palm Beach County inspector
said, for safety purposes, a fence had to run in front of the generator so they pulled the fence further
north, and if they had not done so they would not have gotten their C/O.
Mr. Thrasher said it is the Town's position that the present fence is in conflict with Town Code because,
`— although the fence was moved for legitimate reasons, it was moved from its original location and
consists of a different material from what previously existed and, therefore, a permit is required.
Additionally, all contractors working in Gulf Stream should be licensed in their municipality and
registered with the Town, and it is the contractor's responsibility to know how to apply for a permit. If a
permit was applied for, the height disparity would have been avoided. Mr. Thrasher asked that a permit
be applied for and the location of the fence and height requirements will be reviewed at that time.
When asked by the Special Magistrate, with respect to the height of the fence, if the height requirement
is outlined in Code Section 70-187, Mr. Thrasher replied that the property is located in the Place Au
Soleil District and the requirements are outlined under that District in that Section of the Code. When
asked by the Special Magistrate, in terms of compliance, what time period the Town is looking for, Mr.
Thrasher replied that the Town would request a permit and the installation of the fence to be completed
within three weeks and, subsequent to that time, if the permit has not been applied for and work is not
properly completed, a fine be assessed at $25.00 per day.
Mr. Slominski said he takes issue with Mr. Thrasher's review of the facts. He said a general contractor
can bring a sub -contractor to work under his license, and he has always sent sub -contractors to Town
Hall to be registered if not already. He said he used the Town's Design Studio and the material and
design he chose is consistent with what the Town allows. He said his photos show several fences
contemporaneous with his project, which evidence indicates that the height issue is not being monitored,
or it is monitored selectively. Mr. Slominski said he will apply and pay for a variance, but it would be a
hardship if required to take the fence down and move it in some manner since he will be back in a year
to install the generator and will have to relocate the fence again.
When asked by the Special Magistrate, in terms of the Town's process for obtaining a variance, if a
permit were applied for in conjunction with a variance process to allow for height and materials, what
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May 4, 2011 Page 4
the timeframe would be for a variance process, Mr. Thrasher replied that it would be a Level III
application, which would take about 90 days and must conform to the 7 or 8 standards common in State
of Florida, typically based on a hardship that cannot be justified by finance or health issues. Mr.
Thrasher said the Town does not easily grant variances and, in his opinion, Mr. Slominski does not meet
the criteria to qualify for a hardship.
Mr. Thrasher said Mr. Slominski previously stated that he received the C/O for the project and that he
did the fence work after the C/O was issued. A permit is closed upon issuance of a C/O, which means
any further work would require a new permit process. Urban Design Studio gave input on his
application for the ARPB, but the materials are not the same. Chain link fences are clearly spelled out in
the Code as a material different from aluminum rail fence, which he has installed, and chain link fence is
discouraged and prohibited unless completely screened. Mr. Thrasher said Urban Design Studios did
not give approval for a chain link or wrought iron fence in the manner in which it is currently installed.
He said Gulf Stream does not have selective enforcement and it is disparaging to hear because his
integrity is high. Mr. Thrasher said he acts upon information provided and it his job is to find where
Code addresses the issue, and that is what initiated this process and the reason we are here today. Mr.
Slominski said he does not know why the C/O was issued before the project was complete, but he is
trying to act responsibly. He said he would like to know how others are allowed to have higher fences
of the same material. Mr. Thrasher said the plans that were approved reference chain link fence and do
not show an aluminum rail fence in the present location. Further, he stated that he has no knowledge of
when the other referenced fences in the neighborhood were installed and cannot speak to the issue, but if
they were grandfathered in, his voice is mute.
FINDINGS:
Special Magistrate Donlon found that there is a violation in this case and proper notice was given. A
permit is required and Mr. Slominski will have 21 days to comply. Failure to do so could result in a fine
of up to $250.00 per day. She stated, by resolution, the Town requires that administrative costs for the
hearing be considered in the amount of $150.00 and found that to be reasonable and awarded that to the
Town, payable within ten (10) days. A Fine Assessment Hearing will be scheduled, which date will be
set in the Order received by mail.
This concluded the hearing of Case No. CE 2-11 and the Special Magistrate adjourned the hearing at
11:34 A.M.
Rita L. Taylor, T wq&fl6rk