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HomeMy Public PortalAbout03 21 13 MinutesMINUTES OF THE CODE ENFORCEMENT HEARING HELD BY THE CODE C) ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON THURSDAY, MARCH 21, 2013 AT 10:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. The Special Magistrate Lara Donlon called the hearing to order at 10:00 A.M. She explained that the Town will present first, will call witnesses and provide documents, photographs and other evidence. She said any documents or photos must be shared with the opposing side, objections can be made and she will rule on those objections, but she said the formal rules of evidence do not apply. Special Magistrate Donlon administered the Oath to the following: Christopher O'Hare, Respondent; Fred Stressau, Land Use Planner; Lou Roeder, Esq., Counsel to Respondent; William Thrasher, Town Manager; Rita Taylor, Town Clerk; Marty Minor of Urban Design Kilday Studios, Town Consultant; John Randolph, Esq., Town Counsel. Special Magistrate Donlon called Case No. CE 1-13, Christopher O'Hare, 2520 Avenue Au Soleil. John Randolph stated that he represents the Town of Gulf Stream C, and called William Thrasher, Town Manager, to testify. He asked Mr. Thrasher to state his name, the length of his employment with the Town of Gulf Stream, his duties as Town Manager and about how he first heard of the alleged Code Violations. Mr. Thrasher said he has been Town Manager for the past 12 years and part of his job involves enforcing ordinances and building codes. He said Brien Dietrick, the Town's Maintenance Supervisor, called to ask if he was aware of various landscaping being installed at the subject property. Mr. Thrasher said he drove by the property, observed the situation and concluded that it was a landscaping project that was in violation of Code. He said it was a massive amount of landscaping that included various types of landscaping material installed in the entire front section of the home and along the entire side property line. Mr. Thrasher said he asked Mr. Dietrick to take photos, the photos are dated October S, 2012. Mr. Randolph submitted the photos to Special Magistrate Donlon as an Exhibit. There were no objections. Special Magistrate admitted a two-page document with five photographs as Town's Exhibit #1. Mr. Randolph asked Mr. Thrasher about the work done to the driveway. Mr. Thrasher said the driveway had a cut approximate 3' wide running the entire width of the driveway, the concrete was totally removed and plantings were placed in that area. He C said the impervious area was altered and, according to Code Sec. 66-141(1)(f), a permit would have been required, and he said a Level I Site Plan Review would also have been required. Mr. Roeder objected, he said this is not a violation being heard today. Mr. Randolph said he was trying to lay a predicate for the Notice of Violation. He said Mr. Roeder was correct, and he said he will not submit what was discussed, but he will submit the Notice of Violation. The objection was noted. Mr. Randolph asked Mr. Thrasher if he conferred with anyone concerning the code violations observed. Mr. Thrasher said he asked the Town's Consultant, Marty Minor of Urban Design Kilday Studios, one of the original producers of the Code in the early 90s, for an independent opinion on the volume and type of landscape on the subject property, and he said Mr. Minor provided a written report and photos in his letter to the Town dated October 16, 2012. He said Mr. Minor concluded that there were code violations and he cited code sections throughout his Report. Mr. Randolph submitted Mr. Minor's letter, report and photos as an Exhibit. Special Magistrate Donlon admitted Mr. Minor's letter to Mr. Thrasher dated October 16, 2011, including his report and photos, as Town's Exhibit #2. C) Mr. Thrasher said the First Notice of Violation, dated November 5, 2012, was prepared and hand delivered to Mr. O'Hare by a police officer, the delivery notification is attached to the Police Incident Report. Mr. Randolph submitted the First Notice of Violation and the Police Incident Report with the Delivery Notification attached as an Exhibit. Special Magistrate Donlon admitted the First Notice of Violation dated November 5, 2012 and Police Incident Report with Delivery notification attached as Town's Exhibit #3. Mr. Randolph asked Mr. Thrasher to cite Code Sections that were in violation as they relate to the driveway cut and landscaping only, and the specific violation in regard to each Section. With regard to the driveway cut, Item 3 of the Notice of Violation, Mr. Thrasher cited Code Sec. 58-138(b) which states, "It shall be unlawful for any person to remove, move or add soil or fill to or from any parcel of land located within the Town without first obtaining a permit from the Town." He said Mr. O'Hare removed or moved soil to place landscaping in the locations where the driveway was cut, along portions of the front of the home, and along the side property line. Mr. Thrasher said Mr. O'Hare did not obtain a permit from the Town to do so. With regard to the landscaping, Item 4 of the Notice J of Violation, Mr. Thrasher cited Code Sec 70-146(b)(1) and (4) specifically because the landscape material installed does not Ci reinforce the identity of the Community and the applicable zoning district, which is Place Au Soleil. Mr. Thrasher cited Code Sec. 70-32(a), under "Characteristics" which provides that the predominant style is Bermuda with small to medium-size lots and open front lawns. He said the violation is that the front lawn is no longer open, and he said Mr. O'Hare altered his driveway so that plantings could be placed in the front of the home. With regard to Item 5 of the Notice of Violation, referring to the Lady Palms and other species not listed as appropriate or typical for Gulf Stream or Place Au Soleil, Mr. Thrasher cited Code Sec. 70-150. Mr. Thrasher said he first thought this would qualify for a Level I, which he would have the authority to approve, but he said it would have been considered a Level II to be reviewed by the ARPB because of the impact to the Community and other neighbors. He cited Code Sec. 66-145 addressing procedures for submitting and processing applications for Level I Architectural Site Plan Review. Mr. Roeder objected saying that Respondent was not cited for a violation of Code Sec. 66-145. Mr. Randolph agreed, but he said he was cited for not applying for a permit. He said he is trying to establish what would determine the level of review if Mr. O'Hare complied with Code and applied for a permit. Again, Mr. Roeder objected. Special Magistrate Donlon noted the CD objection and overruled the objection saying she would like to hear the information to determine whether or not the process applies. Mr. Randolph submitted a copy of Code Sec. 66-145 to Special Magistrate Donlon as an Exhibit. Special Magistrate Donlon admitted a copy of Code Sect. 66-145 as Town's Exhibit #4. Mr. Thrasher referenced Coda Sec. 66-141 addressing the applicability of permits as they relate to Level I (minor improvements) and Level II. He said Code Sec. 66-141(2)(h) addresses applications first thought to be a Level I, but determined to be a Level II Architectural Site Plan Review by the Building and Planning Administrator due to the development's potential impact. Mr. Thrasher said he determined this to be a Level II. Mr. Randolph referred to the Town's letter dated January 17, 2013 and asked if the Town allowed time to comply with the violations. Mr. Thrasher said the letter dated January 17, 2013 was written and signed by him and addressed to Mr. Roeder, it was hand -delivered to Mr. O'Hare on January 21, 2013 by a Police Officer. Special Magistrate Donlon admitted Mr. �> Thrasher's letter dated January 17, 2013 and the delivery �, notification as Town's Exhibit #5. OMr. Thrasher said his letter of January 17th was in response to Mr. Roeder's email asking for the Town's expectations of compliance. Mr. Thrasher read January 17th letter aloud, which noted the violations and directed that the property be restored to the condition that existed prior to unpermitted activities by January 31, 2013. He said he issued a Notice of Violation and Notice of Hearing dated February 25, 2013, which provided the Code violations previously stated, the first date of inspection of October 8, 2012, the First Notice of Violation dated November 10, 2012, and Notice to Correct Violations dated December 10, 2012. Special Magistrate Donlon admitted the Notice of Violation dated February 25, 2013 as Towns Exhibit #6 Mr. Randolph asked Mr. Thrasher to read Item 4 of the Notice of Violation that includes the code violations. Mr. Thrasher read the violations of Code Sections 58-138(b), 70-32(a), 70-146 and 70-150. Mr. Randolph asked if compliance has been met to date as a result of that Notice. Mr. Thrasher said it has not. Mr. Randolph asked Mr. Thrasher if he visited and photographed the property as late as this date and Mr. Thrasher confirmed that. Mr. Randolph asked about the photos taken by Mr. Minor when he visited the property to complete his report. Mr. Thrasher said photos were taken. Mr. Randolph referred to a Memo dated November 7, 2012 from Marty Minor with photos of the property attached, and he asked Mr. Thrasher if they accurately depict the condition of the property as of this date. Mr. Thrasher confirmed that. He asked if there is a photo depicting what was done to the driveway. Mr. Thrasher said there is a photo of the section of the driveway on the south side of his property. Mr. Randolph asked what was behind the row of hedges. Mr. Thrasher responded, "his house." Mr. Randolph submitted Mr. Minor's November 7, 2013 memo and photos as an Exhibit. Special Magistrate Donlon admitted Mr. Minor's memo and photos taken by Mr. Minor as Town's Exhibit #7. Mr. Randolph asked if complaints were received from neighboring property owners. Mr. Thrasher he received three written complaints and also telephone calls from neighboring property owners. Mr. Randolph shared an email chain concerning the complaints with Mr. Roeder and submitted the email chain as an Exhibit. Mr. Randolph referenced an October 5, 2012 email complaint, Mr. Thrasher said it was from James Malone and he read it aloud. The complaint referred to the landscape eye sore on the O'Hare property and the incomplete roof. Mr. Randolph referenced an October 10, 2012 email complaint, Mr. Thrasher said it was from Agusto Titarelli, President of the Place Au C� Soleil Homeowners' Association, and he said the complaint referenced the incomplete roof on the O'Hare property and suggested the Town is obligated to enforce the Code with regard to the landscaping. Mr. Randolph referenced a January 2, 2013 email complaint from Quinn Miklos. Mr. Thrasher said Mr. Miklos lives at 2562 Avenue Au Soleil, one block from the Mr. O'Hare's property, and he is a Registered Florida Architect. He read the email aloud, in which Mr. Miklos recommended that projects like Mr. O'Hare's should go to the ARPB for review. Mr. Randolph said Mr. Thrasher testified that if a permit were applied for, this project would have gone before the ARPB for review. Special Magistrate Donlon admitted the email chain as Town's Exhibit #8. Mr. Randolph asked if there is any information that will show this property owner had notice that a permit was required before undertaking the work done on his property. Mr. Thrasher said Mr. O'Hare signed for a Level I Architectural Review and Site Plan approval dated November 1, 2011 to change the exterior color of his home and the exterior wall surface, and the paint colors were approved. He said the permit was also to modify the soffits and change from rough to smooth stucco on the exterior walls. Further, he said the form provided a list of different items of work to be done, the third item being landscaping alterations. Mr. Thrasher said with landscaping included on the list, he assumed Mr. O'Hare knew that at least a Level I permit would be required. Mr. Roeder objected to Mr. Thrasher's assumption. Mr. Randolph asked the Town Clerk to provide to Mr. Roeder with a copy of the Level I Application and he submitted his copy of the Level I Application as an Exhibit. Special Magistrate Donlon admitted the Level I Application as Town's Exhibit #9. Mr. Randolph asked about Town communications that would indicate to Mr. O'Hare that a permit would have been required for these projects. Mr. Thrasher said Mr. O'Hare owns two properties in Place Au Soleil and previously owned the home at 539 Middle Road. He said newsletters are mailed to residents that provide information such as the need to apply for permits when making changes to their property, or at least to inquire with Town Hall regarding permits. The March 15, 2011 newsletter stated: "In order to preserve its unique community character the Town of Gulf Stream has adopted architectural guidelines in a Design Manual. These guidelines address all significant changes to the exterior appearance of your home including different roofing materials, paint color, statues, mailboxes and major landscape ^ changes." Mr. Thrasher also referenced previous newsletters �) that stressed the importance of permitting when making changes to property. Mr. Randolph submitted the newsletters as a Composite Exhibit. Special Magistrate Donlon admitted the newsletters as a Composite of Town's Exhibit #10. Mr. Randolph asked Mr. Thrasher if he recently visited the neighborhood adjacent to Mr. O'Hare to determine the character of the neighborhood and what compliance with Code means. Mr. Thrasher confirmed that saying on March 19, 2013 he took 15 - 20 photos of properties in Place Au Soleil, specifically in the cul de sac where Mr. O'Hare's properties are located, including the subject property of 2520 Ave Au Soleil. He said they include examples of recent Level III construction and full landscaping plans, indicating open landscaping plans that exist in the majority of homes in the cul de sac, with the exception of two that were not permitted, but grandfathered in. Mr. Thrasher said there is a map with the photos that includes a Legend at the bottom and Mr. O'Hare's property is highlighted in yellow. Special Magistrate Donlon admitted the map and photos as Town's Exhibit #11. Mr. Randolph asked Mr. Thrasher if there is a specific property he looked at with a comparable situation as it relates to how the Town enforces Code. Mr. Thrasher referred to 2745 Ave Au Soleil which is also identified on the map. He said he Googled a photo showing the property prior to landscaping changes, for which the property owner obtained a permit, and a photo of the property after the work was complete showing that the owner complied with the section of code previously discussed with regard to open front yards. Mr. Thrasher said the before photo shows a landscape buffer around the front of the home making it not open to view. He said the property owner applied for a construction permit and was told he would be required to remove the high hedge in front to make the home visible, and he said the after photo indicates that the property owner complied. Mr. Thrasher said the front landscape buffer would not have been cited on this property because it was grandfathered in, but he said because they applied for a construction permit, they were required to comply with the current Code. Special Magistrate Donlon admitted the photos as Town's Exhibit #12. Mr. Thrasher said the Town is asking the Special Magistrate to order the property at 2520 Ave Au Soleil to be returned to its original state prior to the subject landscaping and driveway changes. He said the Town has asked the property owner to do so, he has not complied and, based on the volume of C communication with the property owner, it appears he refuses to comply. Special Magistrate Donlon asked Mr. Roeder, the Respondent's attorney, if he would like to ask questions of Mr. Thrasher. Mr. Roeder said he would like to ask questions during his presentation, he understood that the rules of evidence were relaxed in this proceeding. He said for the record they have been asking the Town for weeks for evidence and have received only 10% of what was submitted today. In addition, he said ordinances were referenced that were not called out as charges. To clarify, Mr. Roeder said the term "open front lawn" is used in the Notice of Violation and was used a multitude of times today, but he said nowhere is the term defined and he asked Mr. Thrasher to define how the term is used in the Code and how he would define it. Mr. Thrasher said it may not be specifically defined, but the fact that one can or cannot see the front of the home would be an indicator whether or not it conforms to the Code reference to open front yards. Mr. Roeder said there was evidence presented today, including photos deemed to reference open front yards, yet you cannot show anywhere in the Code that defines the term. Mr. Randolph objected. Special Magistrate Donlon noted the objection and asked Mr. Thrasher to answer. Mr. Thrasher said he does not know of a definition of "open front yards" in the Code, but he said it is a general term he refers to when determining whether or not you can see the front of the house. Mr. Roeder referred to 2745 Ave Au Soleil where they had to remove a hedge to create an open front lawn, and he noted for the record that this is a subject for interpretation, it is not defined in the Code and Mr. Thrasher said it is his interpretation that "open front lawn" means you cannot see the front of the house. Mr. Thrasher said he did not mandate them to remove the hedge, but he said he indicated that if they wanted to make other Level I improvements, the hedge did not provide an open view and the application would be elevated to a Level II and approval or denial would the decision of the Architectural Review and Planning Board. He said the owner took time to decide and came back with a modified plan which he said he determined to be a Level I and could be authorized by the Town Administrator. Mr. Thrasher said that is the result in the second photo of the property at 2745 Ave Au Soleil. Mr. Roeder asked Mr. Thrasher if he required that the hedge be removed to �- be in compliance. Mr. Thrasher said he did not require that the �- hedge be removed, but he said he informed them that he would not approve the permit application as submitted, based on the fact �) that it exceeded his level of authority and if they wanted to proceed with the improvements and leave the hedge, it would be an application for the ARPB to hear and render a decision. Mr. Roeder said Mr. O'Hare previously signed an application that listed landscape alterations, but he said Mr. Thrasher never explained what exactly triggered the requirement of Mr. O'Hare having to apply for a landscape permit. Mr. Thrasher said the volume of landscaping appeared to be more than a small weekend planting. Mr. Roeder asked how many trees would trigger the need for a permit. Mr. Thrasher said the number is not as important as the overall visual impact of the complete project. Mr. Roeder said he is trying to determine what triggers the need for a landscape permit. Mr. Thrasher said the Code provides that if the work will have a material impact on the Community it would require a Level I or a Level II application, which he said would be determined by a review of a site plan indicating the extent of the landscape plan. Mr. Roeder said Mr. Thrasher still has not answered the question. Mr. Randolph objected saying Mr. Roeder has an opportunity to make his argument later. Mr. Roeder said it is fair to ask for clarification of what triggers a permit. Special Magistrate Donlon noted the objection and asked Mr. Thrasher to describe what would trigger a review at either a Level I or Level II with the Town. Mr. Thrasher said a Level I would be landscaping that would require the Town's direction to the applicant of that which they want to place on their property. He said, in that discussion, if the volume is significant it would be determined if it requires a Level II review, either in the form of a conversation or actual application of a Level I or Level II. Mr. Roeder asked if there is a Code Section to go with that. Mr. Thrasher said he previously referred to Code Sections addressing Level I and Level II applications. Mr. Roeder stated that Mr. Thrasher wrote in his Notice of Violation that new plantings violate Code Sec. 70-32(a) and 70- 146, and asked Mr. Thrasher if he was referring to the style and arrangement of plants or the type of plants. Mr. Thrasher said one section of the Notice talks about the location and another section of the Notice talks about the type of materials that are in violation. He said Code Sec. 70-150 refers to type of plants and the other sections refer to the location of the plantings. Mr. Roeder asked Mr. Thrasher if he was saying if a plant is not on the list in Sec. 70-150 it is not allowed. Mr. Thrasher said he is not saying that, but there are various species of plants located both east and west of the Intracoastal that violate that Section of the Code. He said he cannot prove the �) date those plantings were installed and, at the time of planting, they may have been allowed by Code. However, he said in this instance he knows the general timing and dates of the installation of landscaping at 2520 Ave Au Soleil and how it is to be in compliance with today's Code. Mr. Randolph said Mr. Thrasher previously cited Code Sec. 58- 138(b), he asked Mr. Thrasher to read that section and he did so. It states, "It shall be unlawful for any person to remove, move or add soil or fill to or from any parcel of land located within the Town without first having obtained a permit from the Town." Mr. Randolph asked if someone could jackhammer out a concrete driveway and bisect it with trees and fill without getting a permit. Mr. Thrasher said "no." Mr. Randolph called Marty Minor to answer some questions. Mr. Minor was introduced and said he has been a Senior Planner with Urban Design Kilday Studios since 1999. He said his firm is the entity that drafted the Design Manual for the Town of Gulf Stream and he is the Consultant to the Town with regard to the Design Manual. Mr. Randolph asked Mr. Minor if the Town consulted him on this alleged Code Violation. Mr. Minor confirmed that saying he was consulted in early October of 2012. ` He said he was asked to visit the site to determine whether the landscaping improvements are in conformance with the Design Manual Standards. Mr. Randolph asked Mr. Minor if he visited the site and took photographs. Mr. Minor confirmed that. Mr. Randolph asked if they were available to look at. Mr. Minor said he has a full set and the Town may not have all of the photos. For clarification, Special Magistrate Donlon said what was submitted to her at Town's #7 was a memo from Mr. Minor with six pages of photos. She showed them to Mr. Minor and Mr. Minor identified them as the photos he took of the project. Mr. Randolph asked Mr. Minor if he made a determination when looking at the property as to whether the property was Code compliant. Mr. Minor said he determined that the property did not conform to the Design Manual. He said the Code was set up to preserve and perpetuate the unique residential nature of this Town. He said they did extensive surveys of each neighborhood to address the general character of the districts, standards were created for each district and each are described in sections of the Code. He said Code Sec. 70-146 is the landscaping section of the Design Manual, the first thing it J calls for is reinforcing the community's identity, and that identity is referenced in Code Sec. 70-32 where it talks about "informal and naturalistic plantings with open front lawns that C characterize the landscaping and general feel of the lots." Mr. Minor said the inclusion of the row of Lady Palms across the driveway and across the front was found inconsistent and non- conforming to that Section of the Code. Mr. Randolph asked which other sections were not complied with. Mr. Minor said the some of the landscape pallet used are not within the appropriate or typical plants that are part of Gulf Stream or Place Au Soleil District, which is outlined in the October 16, 2012 memo to Mr. Thrasher. Mr. Randolph asked, if a person applied to make these improvements, would they not be granted a permit because they are not in compliance with the Code. Mr. Marty confirmed that. He confirmed that he is familiar with the subject neighborhood and these improvements would not be in compliance with the neighborhood or with Town Code. He also confirmed that there may be a minority of homes in that neighborhood with landscaping that blocks the house. He said it would only be his assumption that those homes or plantings were prior to the current Design Manual because any other change would have to come before the Board and receive a variance or conform to Code. Mr. Randolph asked Mr. Minor about the question of what would trigger the requirement of applying for a permit for the landscaping they want to do on their property. i Mr. Minor said the significant change in the appearance or character of the lot would trigger that review. Mr. Randolph asked Mr. Minor if his memo of October 16, 2012 covers his conclusion that the work done was not in compliance with Code. Mr. Minor confirmed that. Mr. Roeder asked Mr. Minor about his expertise in landscaping, saying he understands Mr. Minor is AICP, Planning. Mr. Minor confirmed that he is not a landscape architect, but is familiar with landscaping and has been working with landscaping in Florida for the past 20 years. Mr. Roeder referenced Code Sec. 70-146 where Mr. Minor said it talks about the Standards reinforcing community identity. Mr. Minor said it is 70- 146(b)(1), and he said the community is made up of districts and it is part of the identity of the Place Au Soleil community. Mr. Roeder referred to 70-150. He said he does not see the words "appropriate" or "typical" anywhere in that section. Mr. Minor confirmed that. Mr. Minor said the typical plants are in Sec. 70-149, listed typical native plants, which plants are appropriate and presently found in the Town. Code Sec. 70-150 is other plants used in the town. Mr. Roeder said Lady Palms are not listed in either section and asked if a plant is not CDor in Code Sec. 70-149, would it be deemed not appropriate or typical. Mr. Minor confirmed that. Mr. Roeder asked where that interpretation comes from and he asked for the Code Section C) that triggers the need for a permit. Mr. Minor said it is in General Landscaping Standards for all single family homes are found in Division 3, starting with Code Section 70-148(1). Mr. Roeder said he cannot find anything in Division 3 that states a permit is required. Mr. Minor said the Section provides principles and standards of preferred for single family homes, and he said it was previously discussed where the Town Administrator, as part of his duties, is to issue permits for landscaping. Mr. Roeder continued saying he cannot get the answer to what triggers the need for a landscape permit. Mr. Minor cited various sections of the Code for Mr. Roeder that address various permits, permit review and.the approval process and it was not specific enough for Mr. Roeder. Mr. Roeder asked Mr. Minor to be specific as to what triggered the need for Mr. O'Hare to obtain a landscape permit. Mr. Minor said under Code Sec. 66- 81, Powers and duties of the planning and building administrator, subsection (9), it talks about various permits which Mr. Thrasher, as the Planning and Building Administrator would review and process, and landscape disturbance permit is included. Mr. Roeder noted that nowhere in there does it state what triggers that type of permit, which he said forces his objection and Section 66 is not listed in the Notice of Violation. Special Magistrate Donlon noted the objection. There were no further questions of Mr. Minor. Break at 11:50 A. M. - Reconvene at 12:01 P.M. Mr. Roeder distributed documentation pertaining to his presentation. He stated, for the record, that he still has not received answers to some of his questions. Special Magistrate Donlon stated that all of the information she will consider will come from witnesses and exhibits and not from a presentation. She said if he is providing an overview or opening or closing remarks, she would consider that also. Further, she reminded Mr. Roeder that if he is presenting information to be considered, it should be provided through a witness that has been sworn in. Mr. Roeder said he would display the boards one at a time and he would question Mr. O'Hare regarding each violation. The first board exhibit referred to the first violation of adding and removing of fill without applying for a permit, and Mr. Roeder referred to Code Sec. 58-138(b), which he stated was �) cited by the Town. He asked Mr. O'Hare if he removed, moved or added fill to or from the site and Mr. O'Hare said he did not. C Mr. Roeder referred to Code sections 58-137(2) and 58-138(b) that address land clearing and exemptions, he asked Mr. O'Hare to read the sections aloud, and he asked Mr. O'Hare if he was in violation of the exemption. Mr. O'Hare said he was in compliance and that the 50% rule did not apply to this matter. Mr. Roeder asked Mr. O'Hare if he applied to the Town for a permit for driveway repair. Mr. O'Hare said when he first received the Town's Notice about the roof, landscaping and the driveway he applied for a permit to restore the driveway and repair other damaged areas in the driveway, which he said was approved by the Town and is now being processed in Delray. Mr. Roeder shared a copy of the permit with opposing Counsel and the Special Magistrate. Special Magistrate Donlon noted for the record that she admitted the copy of the exhibit on the board as Respondent's Exhibit #1. Mr. Roeder submitted a copy of the Building Permit review receipt for the driveway as an Exhibit. Special Magistrate Donlon admitted a copy of the Building Permit review receipt (3 pages) as Respondent's Exhibit #2. Mr. Roeder submitted a copy of Code Sec. 2-68 regarding Jurisdiction as an Exhibit. Special Magistrate Donlon admitted a copy of Code Sec. 2-68 regarding Jurisdiction as Respondent's Exhibit #3. C, The second board exhibit referred to the second violation regarding the character of the district and open front lawns, Mr. Roeder cited Code Sec. 70-32(a) and questioned Mr. O'Hare about the characteristics of the Place Au Soleil District. Mr. O'Hare said there are different styles of homes, some with open front lawns and some with closed front lawns. He said his front door is visible from the street. Mr. Roeder presented photos of the 32 homes in Place Au Soleil with closed front lawns, he asked Mr. Minor to review them and divide them into two piles, one with open front lawns and the other with closed. Further, he would ask Mr. Minor if the front yard is closed, would he consider the property to be non -conforming. Mr. Randolph objected saying that some of the properties photographed may have been grandfathered in. Further, he said Mr. Roeder is going from his witness to the Town's witness and he is out of order. Special Magistrate Donlon noted the objection, she asked Mr. Roeder to finish questioning his witness and then he could question Mr. Minor. Mr. Roeder pointed out a photo of 960 Indigo Point, Commissioner Anderson's property, and Mr. O'Hare noted that you cannot see the house from the street. Special Magistrate Donlon admitted the chart on the second board as Respondent's Exhibit #4 and she admitted the photograph of 960 Indigo Point as Respondent's Exhibit #5. 1 The third board exhibit referred to the third violation, Mr. CRoeder asked Mr. O'Hare about this violation. Mr. O'Hare cited Code Sec. 70-146 that addresses the standards of new plantings in various districts, Code Sec. 70-3(b), Purpose, and Code Sec. 70-4, How to Use this Manual that talk about "mandatory" and "discretionary," and he read the sections aloud. He referred to Code Sec. 70-187(9) noting the design standards for all five districts. Mr. O'Hare said for Place Au Soleil it addresses preferred, but not required, and he said he feels the plantings in his yard meet the standards and he is in compliance. Special Magistrate Donlon admitted the third board as Respondent's Exhibit #6. The fourth board exhibit refers to the violation of planting materials and cites Code Sections 70-146, 70-146(b) and 70- 146(c) which address architectural standards and plant material. Mr. O'Hare said the Code is clear with regard to plant material reinforcing the identity of various districts. Special Magistrate Donlon admitted the fourth board as Respondent's Exhibit V. The fifth board exhibit cites Code Sec. 70-150 that addresses plants used in Town that are in keeping with the character image of the Town environment, Code Sec. 70-148 that addresses style C> and technique, which Mr. O'Hare said no particular style or techniques is listed. Mr. Roeder asked Mr. O'Hare if Mr. Thrasher referred to the groupings or arrangement of plantings as a violation. Mr. O'Hare said he referred to both at different times. Special Magistrate Donlon admitted the fifth board as Respondent's Exhibit #8. He said he found similar plantings in the area and what he saw was inspiration for what he planted. Mr. Roeder shared photos with Mr. O'Hare which Mr. O'Hare identified as plantings around Town Hall. Mr. Randolph objected to the relevancy and materiality of plantings around Town Hall. Special Magistrate Donlon admitted the photos as Respondent's Exhibit #9. Mr. Roeder asked Mr. O'Hare what the significance is of the photos of plantings around Town Hall and Mr. O'Hare said many of the plants are not listed in Code Sec. 70-150, some are very old and some look like they may have been planted when Town Hall was remodeled. Mr. Roeder asked Mr. O'Hare to identify another group of photos that he took of other forbidden plantings in the community, including the late Mayor's home, the new Mayor's home and other residents. Mr. Roeder said these plants in the photos would be considered non -conforming. Special Magistrate Donlon admitted the second group of photos as r- Respondent's Exhibit #10. Mr. Roeder asked Mr. O'Hare where he got the Lady Palms. Mr. C) O'Hare said he took half of them from his property at 530 Middle Rd., which the former owner of that property got from the late Mayor Koch. He said other half were given to him from Jean Spence. Mr. Randolph questioned Mr. O'Hare and asked if he was a professional designer and Mr. O'Hare said he was not, but he is a retired Landscape Architect registered in Florida. Mr. Randolph asked about the email complaints from his neighbors and Mr. O'Hare said he never saw the email from his neighbors and he takes offense to their statements. He said he is happy with the work he has done at this stage and expects it to be better. Mr. Randolph asked Mr. O'Hare if digging up the driveway and planting Lady Palms in that area to block the front of his home is appropriate to the neighborhood. Mr. O'Hare asked Mr. Randolph if he meant as it would be determined to be appropriate in a project approval. He said he is not submitting for a project approval, but he would expect a code to be clear enough so that a person would know what to do without violating the code. Further, he said as he understands the Code he is in compliance. Mr. Randolph referred to the application to change the stucco, which also included landscape changes, and asked Mr. CO'Hare if he took into account that he needed to apply for a permit. Mr. Roeder objected, the Special Magistrate overruled the objection and asked Mr. O'Hare to answer. Mr. O'Hare said Mr. Thrasher does not know when the landscape changes took place. Mr. Randolph referred to an application that indicated Mr. O'Hare had applied for a permit to repaint his house and that form also included several other types of work that would require permits, one of which is landscaping. This form was earlier admitted as Towns Exhibit #9. Mr. Randolph read the form to Mr. O'Hare and asked if that would have given him notice that a landscape permit would be required. Mr. O'Hare said he did not understand the question, Mr. Roeder objected, Special Magistrate Donlon overruled the objection, asked Mr. O'Hare to answer. Mr. O'Hare said he would have applied for a permit if he thought he was making substantial changes, but he said he has been making changes since he bought the property and did not think each incident was a substantial change. He said the driveway was not jackhammered, there was damage from piping and he submitted the permit application to repair the damage. Mr. O'Hare insisted that he was not required to apply for a landscape permit for the work he did on his property because it was done a little at a time. Break at 12:55 P.M. Reconvene at 1:00 P.M. Mr. Randolph asked Mr. O'Hare if he felt he was better qualified to interpret the Code than the Town Manager and Town's Consultant. Mr. O'Hare said he was not, but he said he believes the improvements he made are in character of the district. He agreed that approximately six of the properties he photographed in Place Au Soleil with landscaping improvements were permitted, but only because they were told to do so. He also said he did not have the dates of plantings on the other properties with landscaping improvements. Mr. Randolph referred to the Respondent's third board exhibit that lists various design standards, he said they talked about discretionary and mandatory and preferred, discouraged and prohibited, and he stated that the Design Manual was set up to allow the Town to review applications to make determinations as to whether proposed improvements are either preferred, discouraged or prohibited. He asked Mr. O'Hare if he believes it is in his discretion and not the Towns'. Mr. O'Hare said he is not clear on that, but would not respect Mr. Thrasher's opinion on anything. Special Magistrate Donlon admitted the grouping of photos in Place Au Soleil as Respondent's Exhibit X11. CMr. Roeder called Mr. Fred Stresau of 711 SE 11`h Ave, Ft. Lauderdale, FL as an expert witness. He asked Mr. Stresau to state his qualifications. Mr. Stresau said he prepared a list of his qualifications which was submitted to the Town, and he said he is a registered landscape architect who has practiced since 1966 and owns the Firm of Stresau Smith & Stresau. He said he has 45 years of experience serving on the Ft. Lauderdale Planning and Zoning Board and/or Board of Adjustment and listed other qualifications. Mr. Stresau said he reviewed Mr. Minor's report and rendered his opinion. He said he took exception to the definition of "open front yard~ and said the Code should say that open lawns or open space shall be provided. Mr. Stresau said he is appalled by Mr. Minor's determination that any plant not on the list in Sec. 70-150 is a prohibited plant. He said the Respondent planted larger plantings because smaller plants die, and he said he believes the Respondent's landscaping is described in the Code as informal, which appears all over the neighborhood. Mr. Stresau said some sections of the Code are not defined or are overbearing and leave no room for interpretation. He agreed that closed front lawns would be characteristic of Place Au Soleil. Mr. Roeder said Mr. Stresau is familiar with Mr. O'Hare's landscape changes and he has C1 looked at the Code and the neighborhood. He asked Mr. Stresau if he believes Mr. O'Hare is in violation. Mr. Stresau said C without a definition of "open front lawn" a permit should not be required. Special Magistrate Donlon admitted Mr. Stresau's letter of March 15, 2013 as Respondent's Exhibit #12. Mr. Randolph referred to Mr. Stresau's service on various code boards and asked if the property owners in those municipalities made the determination as to whether or not they needed a permit. Mr. Stresau said Town Staff would make that decision. Mr. Randolph asked if a property owner would be expected to apply for a permit if Town Staff determined so. Mr. Stresau confirmed that. Mr. Stresau said the Gulf Stream Town Code is not clear and he believes the plant list is offensive. Mr. Roeder shared a set of plans with Mr. Stresau. Mr. Stresau identified the documents as home remodeling plans, including a landscape plan, for 2520 Ave. Au Soleil and identified the date on the plans as October 6, 2012, and he confirmed that 90% of the plants on the landscape plan are not on the Town's plant list. Special Magistrate Donlon admitted the remodeling plans for 2520 Ave. Au Soleil, including a landscape plan, as Respondent's Exhibit #13. C Mr. Randolph asked if it was stated that the landscaping plan was submitted and approved by the Town. Mr. Roeder said the plans were given to them by the Town through a public records request. Mr. Roeder asked Mr. Thrasher if Mr. Minor's opinion letter to him was dated November 7, 2012 and Mr. Thrasher said it is dated October 16, 2012. Special Magistrate Donlon clarified that Town's #2 is a memorandum from Mr. Minor to Mr. Thrasher regarding 2520 Ave. Au Soleil regarding unpermitted landscaping analysis. She said on Town's #7 it is a memorandum dated November 7, 2012 from Mr. Minor to Mr. Thrasher with the attached photographs. Mr. Roeder asked Mr. Thrasher if he issued the notice of violation on November 5th to Mr. O'Hare based on input from Mr. Minor, but before Mr. Minor submitted photos. Mr. Thrasher confirmed that, and he said he was referring to the October 16`h memorandum. Mr. Roeder asked Mr. Thrasher if he asked Staff to take photos of Mr. O'Hare's property and began investigating the situation on his own, based on email complaints from neighbors, which was prior to Mr. Minor providing photos. Mr. Thrasher said that what he stated is that this started with a cursory drive-by by the Town's Maintenance Supervisor, Brien Dietrick, and then Mr. Dietrick asked if the work was permitted. Mr. Roeder referred to the email chain of complaints from neighbors and asked Mr. Thrasher is that spurred C� the notice of violation. Mr. Randolph objected, Special Magistrate Donlon sustained the objection. Mr. Roeder shared different email correspondence with Mr. Randolph, he had no objections, Special Magistrate Donlon admitted the email correspondence as Respondents Exhibit #14. Mr. Roeder shared a chronology of email correspondence and Special Magistrate Donlon admitted the chronology as Respondents Exhibit #15. Mr. Roeder asked Mr. Thrasher about the Place Au Soleil HOA comments. Mr. Thrasher said he emailed the HOA President, which is a common practice, to ask if they had concerns about the plantings at 2520 Ave. Au Soleil and asked for their comments. Mr. Roeder said they had a records request for all email and he did not receive a copy of the email correspondence to the HOA President. He said he does have a copy of an email from Sandy Brandt, an HOA member, to the other HOA members saying that Mr. Thrasher would like the HOA's opinion of the landscaping project at 2520 Ave. Au Soleil. Further it stated that if the HOA was okay with the work he would not force the issue, but if they were unhappy he would take the appropriate action. Mr. Thrasher said it is part of the approval process and the intent was to obtain input from the HOA concerning the impact the project would have on the community. Mr. Roeder said it seems that Mr. O'Hare's fate is based on positive or negative comments from the neighbors. Mr. Roeder referred to work that was done in the last three years at 2534 Ave. Au Soleil, 2562 Ave. Au Soleil, 2700 Ave. Au Soleil and 2665 Ave. Au Soleil, and he asked Mr. Thrasher what allows someone to plant landscape material that was not listed in 70-150. Mr. Thrasher said following an applicant's presentation, approvals would be made by the ARPB for Level II reviews and by the Commission for Level III reviews. Mr. Thrasher requested a recess. For the record, Mr. Roeder noted that Mr. Thrasher conferred with Counsel and is now requesting a recess. Break at 2:00 P.M. Reconvene at 2:10 P.M. Mr. Roeder showed Mr. Thrasher a photo of 960 Indigo Point and asked him if it was an open or closed front yard. Mr. Thrasher said it was closed and would consider it to be a grandfathered condition and not in violation. Mr. Roeder asked Mr. Thrasher to read a fax that was from Mr. Thrasher to Mr. Roeder. It says, "the requirement for any permit triggers the need for conformity to the Code(s). The Town agrees with one and three; however in two, and in the event that there would be a proposed �) landscape alteration to the private property, that would require a permit for landscaping that may be required to be brought into C) conformity and that determination would be made through a Level II review process and in a public hearing. If nothing happens to the existing landscape located beyond the right-of-way line, the landscape non -conforming materials could remain. The requirement for any permit triggers the need for conforming to the Code. Mr. Thrasher said he was referring to a landscape permit. Mr. Roeder was trying to point out that other properties applied for improvements and were not asked to remove landscaping from the front of their home to create an open front yard. Special Magistrate Donlon admitted the fax from Mr. Thrasher to Mr. Roeder as Respondent's Exhibit #16. Mr. Randolph asked Mr. Thrasher if, prior to Mr. O'Hare installing the landscaping, he advised him that it would require a site plan review. Mr. Thrasher confirmed that and said he corresponded with Mr. O'Hare on March 6, 2012. Mr. Randolph shared the correspondence with Mr. Roeder. Mr. Thrasher pointed out in the letter where he advised Mr. O'Hare that he would need a site plan review and where it cited Code sec. 70-146 and sec. 70-150. The correspondence also explained Level I, Level II and Level III review process. Mr. Thrasher said a permit was never applied for. Mr. Randolph had Mr. Thrasher read a portion of Code Sec. 66-141(f) where it addresses Level I & II site plan reviews. Mr. Randolph was making the point that the Code addresses certain provisions regarding the approval process, Mr. O'Hare was noticed, he did not challenge the Administrative Decision and he did not apply for a permit. Special Magistrate Donlon said the letter of March 6, 2012 from Mr. Thrasher to Mr. O'Hare has not been submitted to record and she admitted the March 6, 2012 correspondence as Town's Exhibit #13. Mr. Randolph asked Mr. Thrasher if he ever advised Mr. O'Hare that he needed a permit to do the work being undertaken by him. Mr. Thrasher said he did so through his attorney, Mr. Roeder. Break at 2:40 P.M. Reconvene at 2:45 P.M. In closing, Mr. Randolph pointed out that Mr. O'Hare has had ample opportunity to comply with the Town's interpretation of the Code and Mr. O'Hare believes it is not necessary for him to do what the Town requires. He said Mr. O'Hare was advised on several occasions that he needs to apply for a permit for the landscaping, and he said he was advised as late as November 5, 2012 that he was in violation. Mr. Randolph said he was given -,) 30 days to comply in the first notice and was given an extension in the second notice. He said Code Sections were cited with C reference to landscaping pallets, impervious areas being disturbed, certain provisions and purpose of site plan reviews, and he said the fact is that Mr. O'Hare does not want to comply. Mr. Randolph said Mr. O'Hare is aware of his neighbors' concerns and there is strong evidence before the Magistrate in the form of photos, Code Sections and testimony by Mr. Thrasher and Mr. Minor that he is in violation of the Code. He said the Town would ask Mr. O'Hare to return the property to the way it existed prior to the changes made on his property within a period of 30 days and, if not, he would come back to the Special Magistrate to impose a daily fine until compliance is met. Mr. Roeder said they were brought here to answer to the violations, and he said they asked several times for an answer to the question of what triggers the need for a permit and did not get the answer. He referred to Code Sec. 58-138(b) that addressed removing soil to and from the site and said Mr. O'Hare did not do that. Mr. Roeder said the definition of "open front lawns" is not clear anywhere in the Code. He referred to Code Sec. 70-146 that addresses general standards and plant material that is characteristic to the District. Mr. Roeder said Mr. O'Hare looked around his neighborhood and the community and got inspiration for his landscaping from what he observed. He said he kept asking for the trigger and he believes it is disgruntled neighbors sending email complaints to the Town Manager that is the trigger. Mr. Roeder said Mr. O'Hare is not in violation of the Code. FINDINGS: Special Magistrate Donlon stated that, due to the nature of testimony and evidence presented, she would state her findings in written form. This concluded the hearing of Case No. CE 1-13. Special Magistrate Donlon adjourned the hearing at 3:05 P.M.