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HomeMy Public PortalAbout09 11 14 MinutesO O C� August 20, 2014 CODE ENFORCEMENT HEARING RESCHEDULED CODE ENFORCEMENT HEARING TO BE HELD BY THE CODE ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON THURSDAY,SEPTEMBER 11, 2014 AT 2:00 P.M. IN THE COMMISSION CHAMBRS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. AGENDA I. Call to Order. II. Case No. 4-14: Constance J. Swift, 2562 Avenue Au Soleil: Failure to remove an existing shed at this address, said removal being a condition of approval of a large addition to the dwelling. Location of shed in violation of Sec. 70-74 and Sec. 70-105(3) prohibits metal storage sheds. III. Adjournment. SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY THE TOWN OF GULF STREAM CODE ENFORCEMENT SPECIAL MAGISTRATE. WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING, 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. F.S.S. 286.0105 MINUTES OF THE CODE ENFORCEMENT HEARING HELD BY THE CODE C� ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON WEDNESDAY, OCTOBER 1, 2014 AT 2:00 P.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. The Special Magistrate Gary Brandenburg called the hearing to order at 2:00 P.M. He explained that these matters are quasi- judicial and that all testimony will be given under oath. He further explained there is a right to ask questions of those presenting evidence on the matter, and rules that lawyers use in the court room when presenting evidence are not required as long as it is relevant and not overly repetitious, and that he would give it the weight that would otherwise be given to it in a court of law. He advised that in the end he would make a final decision in this matter and therefore it will be necessary that everything is presented here today. He added that the decision can be appealed to the Circuit Court but that those appeals take a long time and are quite expensive. Attorney Brandenburg asked for anyone who is going to speak at this hearing to please stand and to raise their right hands. He then administered the Oath to Town Manager Thrasher and Christopher O'Hare. He asked if there were any preliminary matters to settle and there were O none. Special Magistrate Brandenburg called Case No. CE 4-14, Constance J. Swift, 2562 Avenue Au Soleil. Attorney Thomas Baird stated that he represents the Town of Gulf Stream and noted that counsel is present for the respondent. Attorney Ron D'Anna introduced himself, Mr. Quinn Miklos and Constance J. Swift. The Special Magistrate repeated his introductory speech and administered the Oath to those who had just arrived, Quinn Miklos and Constance Swift. Attorney Baird announced that Town Manager Thrasher will testify to the facts of the case, and the nature of the violation is that there is a shed on the subject property which is in violation of the Town Code with respect to setbacks and a condition of approval of an addition to the existing dwelling wherein the Town asked that the metal shed be removed at the time of the hearing. He stated the owner agreed to remove the O shed as a condition of receiving the development approval. He stated the Town records do not indicate that there is any permit 1 O for this shed, and in addition to the setback violation, metal sheds are not permitted in the town. He stated Mr. Thrasher has nine exhibits to present and share with Mr. D'Anna. He then directed Mr. Thrasher to present the testimony and exhibits. Mr. Thrasher asked if he was to show each exhibit to Mr. D'Anna and the Special Magistrate answered that each should be offered to anyone who wanted to see them before they are given to him. Mr. Thrasher stated the first exhibit is the Statement of Violation and Notice of Hearing dated 9-2-14 that reads as follows: Removal of an existing shed was a condition attached to the approval of a large addition to an existing residence. The shed is in violation of Section 70-74 that requires accessory structures to be placed 15' inside the rear property line, and in violation of Section 70-1-5(3) that prohibits metal sheds. There is no record in the file that the shed was ever originally permitted. The addition was completed and the Town has refused to issue a Certificate of Completion as the shed has not been removed as was the condition that was placed at the time of approval of the addition to the dwelling. He then offered the document to Attorney D'Anna who advised that they have a copy. Special Magistrate Brandenburg asked if there was any objection J to having that introduced to which Mr. D'Anna replied, no objection. He then asked if there was any objection to him allowing it into evidence and Mr. D'Anna replied, none. This document was marked as Town Exhibit #1. Town Manager Thrasher then presented a copy of the police report showing that notice #195 was delivered to the property owner on September 18, 2014 and Mr. D'Anna acknowledged that the notice was received and there is no objection to entering it into evidence. The Special Magistrate marked it as Town Exhibit #2. A composite of Code Section 70-74 showing a 15' rear setback from the property line is required and Section 70-105(3) listing metal sheds as prohibited accessory buildings was presented. When asked if he wanted to see those Sections, Mr. D'Anna asked to see Section 70-74 related to setbacks and stated he had no objection to entering them into evidence as to the ordinances and what they say. Attorney Brandenburg admitted the Sections as Town Exhibit #3 A & B. The Town Manager presented the Architectural Review and Planning O Report that was presented to the ARPB on May 26, 2011 and asked Attny. D'Anna if he would like to see the report. He had no 2 G objection to admitting it into evidence and the Special Magistrate admitted the report as TOWN EXHIBIT #4. An excerpt from the minutes of the ARPB Hearing that was held on May 26, 2011 was presented by the Town Manager. He explained that this details the presence of Mr. Miklos as Agent for this project and documents the language of an agreement with regard to removal of the shed. Attorney D'Anna reviewed the minutes and stated he had no objection to admitting them. They were admitted as Town Exhibit #5. A portion of the minutes from the Town Commission Hearing held on June 10, 2011 was also presented by the Town Manager who explained that the minutes state that Mr. Grego Miklos, father of Quinn Miklos, presented the project to the Commission which includes the agreement that the shed would be removed as a condition of approval of this project. Attorney D'Anna said he has a copy and has no objection to admitting them. These were admitted as Town Exhibit #6. Mr. Thrasher then presented a copy of a letter dated June 17, 2011 addressed to Constance Swift -Miklos which explains the conditions of approval of the project and that one of them is C> that the shed must be removed. Attorney D'Anna did not review the letter but stated he had no objection to it being admitted. Mr. Brandenberg admitted the letter as Town Exhibit #7. The next exhibit presented by Mr. Thrasher was a letter from him to Constance Swift dated November 7, 2013 acknowledging receipt of a letter from her objecting to having to remove the shed. Copies of exhibits presented at this hearing were also attached to the letter. Attorney D'Anna did not review the letter but had no objection to admitting it. The Special Magistrate admitted the letter as Town Exhibit #B. Mr. Thrasher next offered a copy of a survey dated July 9, 2003 that shows the location of the shed in question. He pointed out that the shed is partially located on the adjacent property that he believes is within the City of Delray Beach. He then offered the exhibit to Mr. D'Anna who reviewed same and advised he had no objection. Special Magistrate Brandenburg admitted the survey as Town Exhibit #9. 3 As his last exhibit, Mr. Thrasher presented 3 pictures of portions of the shed showing the material on the outside of the Oshed. Mr. D'Anna reviewed the picture and the Special Magistrate 3 O gave him permission to ask Mr. Thrasher questions before passing the pictures to him. Mr. D'Anna asked Mr. Thrasher if those are pictures of the material the shed is made of to which Mr. Thrasher replied it is an example of the material and the rear portion of the shed itself. Mr. D'Anna asked how Mr. Thrasher would described the material that's in the pictures and he replied, metal clapboard. He then asked if there is wood on the shed and the Town Manager said he didn't know. Attny. D'Anna then asked who took the pictures to which the Town Manager replied it was the Towns' maintenance personnel. He then asked if Mr. Thrasher knew when they were taken and was told they were taken approximately 30 days previously and that he had asked them to take the pictures at that time. Mr. D'Anna asked Mr. Thrasher once again if he had taken the pictures to which Mr. Thrasher stated he did not take them himself. Attorney D'Anna then stated that he objects as this witness has not properly authenticated those as being the shed. The Special Magistrate asked the Town Manager if he could indicate if those photos are an accurate depiction of what exists on the property today from his personal knowledge. Mr. OThrasher replied that he could not as he had not visited the property today. Mr. Brandenburg then asked if he could represent that they are an accurate depiction of what was on the property the day he testified they were taken to which Mr. Thrasher replied, yes. Mr. Brandenburg asked how he knows it's accurate. Mr. Thrasher stated he saw the pictures immediately after they had been taken by the maintenance department. The Magistrate asked if he had been to the site and seen it himself to which Mr. Thrasher replied, no I have not. He then asked Attorney Baird what his position was with reference to the admissibility of the photographs. Mr. Baird stated that they are a public record, they were taken at Mr. Thrasher's direction by the maintenance worker, and the maintenance worker responded and presented him with the pictures, that they are authentic pictures of the shed and they should be admitted. The Special Magistrate stated that for the moment he is admitting the photos as Town Exhibit #10 and will decide on other testimony whether it will be admitted or not. Mr. Thrasher advised that presentation of his exhibits is completed and Attorney Baird suggested that he summarize his case. n O Mr. Brandenburg suggested that Mr. Baird ask Mr. Thrasher some questions with regard to the case and he could then respond. Mr. Baird asked Mr. Thrasher which sections of the Code this shed violates to which he replied there are two sections, the first being Section 70-74 addressing the rear setback as it relates to minor accessory structures. He explained that an accessory structure, constructed of proper materials, must be a minimum of 15' from the rear property line. Mr. Baird asked if this shed is more than 15' from the property line to which Mr. Thrasher replied, no, it is 2.7' from the property line as shown on the survey which is Exhibit #9. Mr. Baird asked if metal sheds are permitted in the town and he replied they are not permitted under Code Section 70-105(3) as stated in Exhibit #3B. Attorney Baird called attention to Exhibit #4, The ARPB Planning Report, and asked Mr. Thrasher if that report indicates the staff was recommending an approval of the addition subject to two conditions, one of which was that prior to issuance of a Certificate of Completion the existing shed be removed. Mr. Thrasher answered yes. Mr. Baird asked if the owner, or the owners representative, agreed to this condition and was told that the agent for the owner did agree. Mr. Baird then asked Mr. Thrasher if the same application was brought before the Town Commission, if the same condition for the removal of the shed was before the Commission, if the Commission agreed to grant the approval based upon that condition, if the owners representative at that meeting represented to the commission that they would remove the shed? Mr. Thrasher answered in the affirmative to all of these questions. Referring to Exhibit #7, Mr. Baird asked if it was customary for the Town to issue a letter confirming approvals of the review of applications and Mr. Thrasher answered it is a Code requirement to be met within 10 days following the hearing. He then asked if the letter, Exhibit #7, included that the shed was to be removed as a condition of approval and Mr. Thrasher said it was. Mr. Baird asked if the letter dated November 7, 2013 and marked as Exhibit #8 was sent to Ms. Swift in reply to correspondence from her and if the letter stated that before a Certificate of Completion would be issued the shed must be removed. Mr. Thrasher replied, yes. Attorney Baird called attention to the survey of the property that was admitted as Exhibit #9. The Special Magistrate asked Mr. Thrasher to point out the property line and the location of the shed, determining the shed to be located across the property line. He then asked if both properties are owned by the same person and Mr. Thrasher said no, and added that the other 5 O property is located in the City of Delray Beach across the property line. Mr. Brandenburg then asked if it is correct to say there is no setback and in order to conform to Town Code it must be 15 ft. off the property line and not be metal. Mr. Thrasher said this is true, adding that the material used to construct the shed must not only not be of metal but must match that on the primary structure. Mr. Baird stated he had no more questions and the Town had no other witnesses and the Town's case is complete. Special Magistrate Brandenburg announced that the property owner now has the opportunity to present anything they like. Attorney D'Anna called Quinn Miklos as his first witness. Mr. Miklos asked to be seated where he could turn to speak to Mr. Thrasher and to Mr. Brandenburg. Mr. Baird inquired from the Special Magistrate if the witness was going to ask the Town's witness questions. Attorney D'Anna suggested that they present their testimony and the Special Magistrate asked that they begin by having the witness state his name and address. Quinn Miklos stated his name, advising that he is an architect, and that he resides at 2562 Avenue Au Soleil, Gulf Stream, Florida, adding that the property is owned by his wife, Constance Swift. Mr. D'Anna asked how long a shed has been on this property to which Mr. Miklos replied he has pictures going back to 1999 and he presented one reproduced from Google earth on which he circled a shed located at the front of the home. Attorney Baird asked if the picture was printed from his computer and when it was done. Mr. Miklos said it is from his computer and he believed he printed it about 6 weeks previously. Mr. Baird asked if he was saying the photo represents the property from 1999 to which Mr. Miklos replied, yes. Mr. Baird asked if this was a photo from Google earth from 1999 to which Mr. Miklos replied that Google earth processes information from satellites that has been stored from various sources and the photo states the image is from U.S. Geological Survey. Attorney Baird stated that it is not shown on the photo that it is from 1999 and he is objecting to the authenticity of the document. 0 OMr. Brandenburg stated the objection is so noted and the photo will be marked as Property Owners proposed Exhibit #1. Looking at the photo, the Special Magistrate asked Mr. Miklos if he believes the photo depicts the shed in question in 1999 to which Mr. Miklos stated, no it does not, it depicts a shed that was on the front part of the property in 1999. Mr. Miklos drew a box on the copy of a survey to show where he believes a shed was located in 1999. Attorney D'Anna presented a Google earth photo dated January 31, 2004 showing the current location of the shed that is circled in red, and a notation as to the location of the previous, original shed. Mr. Brandenburg asked Mr. Miklos how long he had lived at this address and was told he moved there in 2008 but his wife had lived there prior to that. Mr. D'Anna asked to have the photo marked as Property Owners Exhibit #2. Mr. Baird objected to the exhibit in that Mr. Miklos did not live at that address in 2004 which is the date on the photo. Mr. D'Anna advised he would clear that up with Canother witness later on. The Special Magistrate designated the ^�) photo at this time as proposed Property Owners Exhibit #2. Mr. D'Anna called attention to the configuration of the property in relation to the rear setback and asked if the lot is either of a rectangular or square dimension to which Mr. Miklos replied, neither, and offered a copy of a survey of the property which did not show a date. Mr. D'Anna asked that the survey be entered as Property Owners Exhibit #3. Mr. Baird objected in that the survey did not display a date. The Special Magistrate designated the survey as proposed Property Owners Exhibit #3. Mr. D'Anna asked Mr. Miklos if the survey correctly depicts the configuration of the property the home is located on to which Mr. Miklos replied in the affirmative. Mr. D'Anna then asked if the shed in question is at the rear of the property and Mr. Miklos answered that it is not, it is on the side of the property. He explained it is the side due to the fact the property line is parallel to the property line that adjoins the neighbor and advised that he has a Google earth picture dated March 21, 2011 that shows several homes adjacent to his house. Mr. D'Anna asked Mr. Miklos if the aerial accurately depicted the location of his home and the shed and Mr. Miklos said that it did as of that date. Mr. D'Anna noted the picture shows 7 C� three homes to the right of his and asked what was in back of the one in the center to which Mr. Miklos replied that it was a shed. The Special Magistrate asked for a copy of the picture and marked it proposed Property Owner Exhibit #4. Mr. Miklos, pointing to the picture, explained to the Special Magistrate how he had arrived at the conclusion that the shed was on the side of the lot. O D Attorney D'Anna asked Mr. Miklos if the shed two houses away has always been there since he moved there in 2008 and if he knew what it is constructed of. Mr. Miklos replied it has always been there and appears to have a glass window, garage door, cement roof tile and some sort of cladding. He stated is appears to be at the rear property line and not compliant with the 15' setback requirement, in answer to a question from Mr. D'Anna. He further advised that he has requested information from the Town with regard to that shed but it has not been provided. Mr. D'Anna then asked if the formula he had indicated is a recognized formula that is used for determining where the rear of the property is when there is a property with an irregular shape and was advised by Mr. Miklos that it is the primary test. Attorney Baird asked Mr. Miklos to indicate on the survey, Exhibit #3, what he considers the rear property line. Mr. D'Anna noted that from testimony it appears that the shed is partially situated on property within the Town of Gulf Stream and partially in what Mr. Thrasher believes to be the City of Delray Beach and Mr. Miklos stated that was correct, adding that the neighboring property is a commercial property and a 10' wall has been constructed with the shed being next to the wall. In answer to a question from the Special stated Ms. Swift owns the property that shed sits on but is in control the rest sits on, explaining that because of the maintain the adjacent property that is o wall. Magistrate, Mr. Miklos approximately 1/3 of the of the property the shed 10' wall they have to n their side of the Mr. D'Anna asked how Mr. Miklos had been where it is when some of it is not on his replied that the owners had built the 10' property off, resulting in him having to the property adjacent. able to keep the shed property to which he wall closing their maintain a portion of O Mr. Brandenburg asked if he claims ownership of the entire property the shed sits on to which Mr. Miklos answered, no. He then asked if the actual owner had ever said to him that he is giving up the rights to that property. Mr. Miklos said no, they had never had a conversation. The Special Magistrate asked Mr. Miklos if he has access to the entire shed and stores things within the shed and Mr. Miklos replied that's correct. Mr. D'Anna asked how long Mr. Miklos had been maintaining that property and he confirmed that he maintained it since 2008. Mr. D'Anna then offered an aerial photo showing the property as it is currently but the shed is not visible in the aerial. The Special Magistrate marked the photo as proposed Property Owners Exhibit #5. Mr. D'Anna asked if approvals for improvements to the property were applied for on or about October 30, 2007 and Mr. Miklos called attention to a survey that had the Towns stamp thereon and a received date of October 30, 2007 that shows the shed in the present location. He stated that at this time he was requesting approval to add 2,376 sq. ft. to the existing house and the requested improvements were approved by both reviewing boards. In reply to a question from Mr. D'Anna, Mr. Miklos Ostated there had been discussions about the shed during the planning meetings. He said he had to compromise and connect his addition to the existing house so, when counting the shed, there would be no more than two structures on the property as provided by Code. He stated that he got his favorable staff report by agreeing to connect the cottage to the house. Mr. D'Anna asked if at any time he was told he would have to remove the shed because it violated the rear setback and also because it was a metal material to which Mr. Miklos replied, never, at any time. He further inquired if Mr. Thrasher had any input as to where the shed would be located. Mr. Miklos stated Mr. Thrasher actually selected the location for the shed and Mr. D'Anna asked when that happened. Mr. Miklos stated he had no direct knowledge of that but his wife could answer that. He said it was moved before 2004 from the front yard. Mr. D'Anna asked if he knew how much it cost to place the shed on the property and Mr. Baird objected because of relevance. He then asked what it would cost to remove the shed from the property. The Special Magistrate over ruled the objection. Mr. Miklos estimated it would cost several thousand to remove the shed. Mr. D'Anna asked if there are other homes that have sheds and Mr. Baird objected to the testimony as the case involves this property and other properties having or not having sheds is E O not relevant. Mr. D'Anna stated it is relevant to selective enforcement so he would at least like to make a record. The Special Magistrate instructed Mr. D'Anna to go ahead with his questioning. Mr. Miklos stated there are other homes with sheds and he offered a picture of the garage across the street with a shed just behind the corner of the garage, called attention to the shed on one of the aerials previously presented and a picture of a shed said to be at 2550 Avenue Au Soleil. Mr. Baird objected to the photos with regard to relevance. Special Magistrate Brandenburg directed that the photo of the shed behind the corner of the garage as Property Owners Exhibit #6. Mr. D'Anna asked to submit the survey with the towns receiving stamp that was previously referred to. Mr. Baird had no objection and the Special Magistrate designated the survey as Property Owners Exhibit #7, and added that it appears to be the same as the Town Exhibit #9. Mr. D'Anna then asked Mr. Miklos if he had another picture of a home with as shed, who took the picture and when it was taken. OMr. Miklos said he took the picture about 6 weeks previously and the shed is located at the rear of the property at 2550 Avenue Au Soleil. Attorney D'Anna asked to have the picture marked in evidence and Attorney Baird objected because of relevance. The Special Magistrate marked the picture as Property Owners Exhibit # S. Mr. D'Anna asked Mr. Miklos if there are pictures of his shed and Mr. Miklos presented a picture of the exterior, during the 2007/2008 building cycle, and one of the interior of the shed taken approximately 6 weeks previously. The Special Magistrate marked the picture of the exterior as Property Owners Exhibit #9 and the one of the interior as Property Owners Exhibit #10. In answer to a question from the Special Magistrate, Mr. Miklos confirmed that the interior of the shed is wood and the outside is covered with a clapboard composite material that has metal in it and possibly some fiber glass. Mr. D'Anna referred to the 2007 application for improvements and asked if the work had been inspected for final approval to which Mr. Miklos replied, yes and added that he has a Certificate of Occupancy dated November 30, 2009 and the shed was in the current location. The Certificaate of Occupancy was marked as 10 Mr. Miklos replied, yes and added that he has a Certificate of Occupancy dated November 30, 2009 and the shed was in the current location. The Certificaate of Occupancy was marked as Property Owners Exhibit #11. Mr. D'Anna then clarified that additional improvements were made in 2011 and Mr. Miklos stated that due to a medical condition his wife has, they needed more space. Mr. D'Anna recalled there had been made mention of the fact that a condition of the approval for the 2011 improvements had been that the shed be removed. Mr. Miklos confirmed that, adding he had a conversation with the staff and was told that there was a directive from the Commission that there would be no more sheds in Gulf Stream, and further there would be no justification since there would be a 5 car garage with the new improvements and no reason for a storage shed. Mr. D'Anna asked how far along the project was when he was told the shed must be removed in order to receive approval of the project. Mr. Miklos stated they had unified the title to the two lots and he had approximately $40,000 of his architectural work completed. Mr. Baird stated he objects for relevance and moved to strike that testimony. The Special Magistrate advised he will let the testimony stand and he asked Mr. D'Anna to please move this forward. C� Mr. D'Anna asked Mr. Miklos if he had anything with regard to grandfathering and to whom did he speak. Mr. Miklos stated he had correspondence to and from Mr. Thrasher and an email from Mr. Randolph, the Town Attorney. Mr. Baird offered that the correspondence, 2 letters, to which Mr. Miklos referred have already been placed in evidence by the town, and that those communications speak for themselves. The Special Magistrate directed that the witness may address the background for the correspondence but he will read the content for himself. Mr. Miklos said Mr. Thrasher had told him that there had been no applications for improvements applied for by owners of other properties that had sheds and that those sheds are grandfathered, citing Section 70-105. He added that on May 30, 2014 the Town Attorney had written to him and stated that article did not exist. Mr. D'Anna asked to have the email marked as the property owner's next exhibit and Mr. Baird objected to the admission of the exhibit without Mr. Randolph's response being in the record, as one can't testify that this is O factual information and supply only one side of the facts. The Special Magistrate stated Mr. Baird can supply the other side of 11 O Mr. Brandenburg asked Mr. Baird if he had any questions for this witness and was advised that he did have questions. Attorney Baird confirmed from Mr. Miklos that the property in question is owned by Ms. Swift and the property as depicted on the survey, Town #9 and Property Owners #7, on which the shed sits is not entirely owned by Ms. Swift with a portion being owned by the adjacent property owner. Attorney Baird then asked if the survey also shows the shed as being located within an FP&L utility easement to which he replied that it had not been discussed. The Special Magistrate displayed the survey and Mr. Miklos stated he was unable to comment on something in this scale but he would be glad to do so if given the original document. Mr. Baird stated he was asking that Mr. Miklos review the document he had submitted into evidence. Mr. Mikols stated this question had not come up before and he could not comment on this matter. Mr. Baird moved that the argumentative comment be stricken. Mr. Brandenburg asked Mr. Miklos to come forward and he handed him the exhibit of the survey the Town had presented and asked him to review it. Mr. Miklos stated in looking at this scale it appears the shed is in a FPL utility easement. Mr. Baird asked if, to his knowledge, an approval has been secured from FPL to encroach upon their easement. Mr. D'Anna objected in that the subject of this hearing was that the shed violates two sections of the Town Code. The Special Magistrate advised that he had allowed Mr. D'Anna a considerable amount of latitude so Mr. Baird could continue with his questions. Mr. Miklos stated he was not prepared to address that matter today as it was not a part of the summons he was given. He did state that he had not asked nor had he been given approval. Mr. Baird asked Mr. Miklos if he represented Ms. Swift as her agent for the 2007 project and was he living on this property at the time of the 2007 application. Mr. Miklos said he was not living there during the application phase of the project but was her agent and, in answer to a question from Mr. Baird, confirmed that the application was for improvements to the existing house. Mr. Baird referred to previous testimony that the shed had been legally on the site and asked if either he or Ms. Swift have a permit from the town for the shed. Mr. Miklos stated that they had complied fully with the town's standards at the time. Mr. Baird stated that was not his question and that he is asking if he has any personal knowledge of there being a permit for the shed on the site and Mr. Miklos stated yes, they have a permit for the shed on the site. Mr. Baird asked if he thought it would be important to have that for the hearing this date. Mr. Miklos 12 O stated he could show copies where he had asked for a copy from the town but he does not have a physical copy. Mr. Baird asked if the 2011 application was also for an addition to the house to which Mr. Miklos advised it was for an addition to the east side of the house and did not involve the cabana. Attorney Baird then asked if Mr. Miklos had appeared before the Architectural Review Board with this application and did the Board attach a condition to the approval of the application. Mr. Mikols replied that he did appear before the Board and there was no condition attached to the approval by the Board. He said the staff attached the condition about the shed and the Board approved the staff report. Mr. Baird then asked if he concurred with what is in the minutes of the hearing before the Board to which Mr. Miklos replied yes. Mr. Baird stated it is his understanding that Quinn Miklos did not appear at the hearing held by the Town Commission to which Mr. Miklos stated his memory was not clear on that, his father may have appeared and added that he would concur with what is stated in the minutes of that meeting. Mr. Baird showed an email from Mr. Randolph and asked Mr. Miklos if that is the document he had mentioned earlier to which Mr. Miklos replied it was not. Attorney Baird had no further questions. Mr. D'Anna asked Mr. Miklos if he had reviewed the emails between Mr. Randolph and himself that he had just seen. Mr. Miklos stated he was discussing with Mr. Randolph that there was not a Code Section that provided for holding up a Certificate of Occupancy for a code violation so the Town is choosing. Attorney D'Anna asked if there are Code provisions that determine if a shed is metal or not metal and Mr. Miklos stated he has been asking the town what it's definition of a metal shed is. He then said the town did not offer him a definition so he went to the Florida Building Code which says he has a wooden shed because it is wood construction and he read a paragraph from Chapter 23 of that Code. Mr. Baird objected due to relevancy in that what is being considered is a violation of Town Code and the violation is specific to the structure and the location of the structure. The Special Magistrate stated the objection is noted and overruled. He marked the excerpt in Chapter 23 of the Florida Building Code as proposed Property Owners Exhibit #13. Mr. D'Anna asked what qualifies this shed as being wood within the definition of the Florida Building Code. Mr. Miklos said it 13 O is due to the structural elements of the shed being of wood and he reminded he submitted a picture of the interior showing the rafters etc. Mr. Baird asked if he could ask a re -cross question and his request was granted. He stated he thought Mr. Miklos had testified earlier that the outside covering on the shed was a clapboard siding that is a composite of metal and fiber glass. Mr. Miklos stated that he thought that is the covering but could not be sure. He agreed that the siding may be metal. Mr. D'Anna called his next witness, Ms. Constance Swift who advised she is the owner of the property and Mr. Miklos is her husband. In answer to questions from Mr. D'Anna, she advised that she purchased the property in 1999 and a shed was on the property at the end of the driveway. She further stated that she received neighbor complaints about the shed and she had it removed in 2004 and a shed placed in back of the house, a location that she thought Mr. Thrasher had designated. Mr. D'Anna asked what procedure she had followed and was it permanent. She replied it was permanent and she doesn't have anything anymore as she disposes of things, thinking she no longer needed it. Mr. D'Anna then asked if FP&L had ever been out to her location and she stated they had, many times when the transformer blew out. He asked her if the shed was in place before Mr. Miklos moved in to which she replied yes and added she believed it was there in 2004. Mr. Baird asked Ms. Swift if she obtained a permit to tear down the shed that was on the property in 1999 and she answered no, she didn't need a permit, she was ordered to take it down. He then asked if she had received any permit for that shed. She said she couldn't have put the shed in without a permit but she does not have a permit. She stated she had asked the town for a copy of the permit because they would have it. Mr. Baird replied that if a permit was issued then the town would have it and Ms. Swift agreed and stated she would love to have a copy of it. He then asked if she had ever had permission from the car dealership to have her shed on their property or permission from FP&L to have her shed across their easement and she answered no to both questions. Mr. D'Anna called another witness, Mr. Christopher O'Hare who stated he lived at 2520 Ave. Au Soleil and had been sworn in. Mr. D'Anna asked if Mr. O'Hare had ever attempted to obtain permits relating to sheds that are located in the community to which he replied that he had made record requests for sheds he 14 O noticed, one of which was already in evidence at 2550 Ave. Au Soleil, and was told that record had been destroyed in the normal cycle for record destruction. Mr. Baird objected for realevence as this testimony does not go to the nature of the violation and there has been no foundation which would allow for hearsay testimony by Mr. O'Hare about the other sheds and his requests for permits. The Special Magistrate asked Mr. D'Anna what was relevant about a permit for a shed at a different location to which he replied that the matter of records destruction would tend to explain why Ms. Swift was unable to obtain a copy of her permit for her shed. The Special Magistrate overruled both objections and stated he would give it the weight which it should be given. Attorney Baird asked Mr. Thrasher if he had looked to see if there was a permit for the shed and was told there was no record of a permit. Mr. Baird asked Mr. Thrasher to review the conversation with Mr. Miklos as he remembers it at the time of staff review for the improvements in 2011. Mr. Thrasher stated that during the staff review, a pre -application process with Mrs. Taylor present, they had located the shed splitting the �) property line, and advised that a condition of approval would be presented to the various boards for their review and consideration but that he does not make any decisions as they relate to an ARPB or Commission review, only recommendations in the staff report for their consideration. Mr. Baird questioned if the recommended condition of approval was that the shed be removed and if that condition was communicated to the ARPB and Mr. Thrasher replied yes. Mr. Baird further asked if the ARPB then made that a condition of their recommendation to the Town Commission regarding the property and the answer was, yes. Mr. Baird's final question was, did the Town Commission reach a decision that required as a condition of the approval, the removal of the shed and Mr. Thrasher replied that was correct. Mr. D'Anna asked Mr. Thrasher if he had visited the Swift property to which he replied that he had as recently as 2013/2014 when he had gone to review the finished product but did not go to the rear of the property. In reply to questions from Mr. D'Anna, Mr. Thrasher advised he has been employed in his position for 14 or 15 years, that he had visited the property in 2004 and there was a shed on the property but he could not recall where it was located. Mr. D'Anna asked if he had a discussion with Ms. Swift regarding the shed that was there in 2004 and he replied, no. He then asked Mr. Thrasher if 15 O he had a discussion with her in which he suggested she put the shed where it presently sits and he answered, no. In reply to questions from Mr. D'Anna, Mr. Thrasher said the shed was shown in the 2007 plan for the first addition to the house and that was when he became aware of the existence of the shed on the property. Mr. Thrasher was asked to explain how the town maintains records of permits and he stated the permits are held in a property file for a specified period of time, a request is made by the Town Clerk for the destruction of records that meet the destruction time line which he believed to be 10 years. Mr. D'Anna asked if permits are among the category of documents that can be destroyed if the time line is met to which Mr. Thrasher replied, yes, and that destruction record is kept in the Town Clerks file. Attorney D'Anna asked why the shed sat on the property so long, since 2007, and not become an issue until 2011. Mr. Thrasher said he did not make it a condition of approval in 2007 because he had overlooked the shed, adding that it should have been made a condition at that time. Mr. D'Anna asked were it not true that the original plans indicated there would be three separate buildings and there Ocould be no approval as the Code provides there may be only two separate structures. Mr. Thrasher replied, no. Mr. D'Anna then asked if it was true that the plans were revised so that the cabana house and the main house were connected by modifying the roof so there became one roof for both structures and Mr. Thrasher said that was true. Both attorneys acknowledged they had nothing additional to present and Mr. Brandenburg declared a five minute recess. Mr. Brandenburg declared the hearing back on the record and announced he would give each attorney an opportunity to summarize their case if they so desire. He added that he is going to clarify the record and show that he has admitted into evidence the Property Owners Exhibits #1 thru #13 and admitted into evidence the Towns Exhibits #1 thru #9 and their proposed Exhibit #10. Attorney D'Anna pointed out that the issue in his case is based on the Towns charges that his client violated two ordinances, one regulating rear setbacks and one regulating metal sheds with the burden being on the town to show by substantial competent O evidence that the violations occurred. He respectfully submitted they have not done so as the testimony of Mr. Miklos and the C, pictures introduced have established that what the Town believes is a rear setback is actually a side setback. He said that with regard to the configuration of the shed, the evidence showed that the shed was comprised of wood. Mr. Thrasher introduced pictures that he didn't actually take. Mr. Miklos testified that based on the definition in the Florida Building Code this is a wooden shed and there is no definition of a metal shed in the Gulf Stream Code. He pointed out that the shed was in place in 2007 when the first improvements were applied for and Ms. Swift testified that Mr. Thrasher was on the property at that time, saw the shed when it was in the front of the house and that Mr. Thrasher suggested that it be moved to the side of the residence where it has sat since 2011. He said she further testified that in 2004, when requested to take down the shed, she said no, I'll move it and did so after obtaining a permit to do so but has been unable to receive a copy from the town. For those reasons he believed the town has not proven the case. He went on to state that he believes they have a promissory estoppel issue in that there is an action by a town in which they either explicitly permitted a shed and/or by their actions acquiesced in it being there for a considerable time period which would make their efforts to secure Mr. Miklos consent to take it down as part of the 2011 construction essentially Ounlawful. Attorney Baird stated there are three issues, one is the metal shed code provision, two is the shed in the setback and the third is their failure to comply with the condition of an approval with respect to the structure, and the evidence that demonstrates those violations include; 1) The managers interpretation of the code. He is the one who works with the code and makes recommendations to various boards, with there being case law that the interpretations from those staff members reviewing codes are to be given great deference by the courts. Therefore, Mr. Thrasher's opinion as to the structure and location would prevail. 2) Evidence and testimony was entered to show the condition was recommended by the Town Manager, then recommended by the ARPB and then adopted by the Town Commission that the approval of the improvements was conditioned upon the removal of the shed and the minutes show the agent agreed to the condition. 3) There is also evidence the shed not only violates the setback but extends across the property line on to another parcel of property not owned by the respondent but also into an FP&L utility easement as shown on the survey and through testimony from Mr. Thrasher and Mr. Miklos. 4) Mr. Thrasher C) testified the shed was metal and while Mr. Miklos maintained the shed to be of wood construction, it was also partially metal. 17 OMr. Baird closed by stating that for those reasons the town believes the property is in violation and requested a time for compliance by the removal of the shed and $100 per day fine for each day after the shed is not removed. Mr. Brandenburg complimented the attorneys on an excellent job and stated there are 3 issues in the case. He reminded that his job is to look at the facts that have been presented and determine whether or not the facts presented establish a violation of the code as written by the town. Based on that, he found; 1) There was a condition of approval requiring the removal of the shed and the shed is still in place. Consequently, this is a violation. 2) The shed is located within the rear setback, across the property line, on the property of another individual as well as a utility easement, and without the permission of the other property owners. This is a violation. 3) The structural members in the shed are wood but the outside covering is a composite that includes metal and has the appearance of metal. In adopting the section in the zoning code prohibiting metal sheds, an interpretation would be that the town does not like the appearance of metal sheds and therefore the shed is in violation. OThe Special Magistrate inquired as to how long Mr. D'Anna would need to remove the shed to which he replied, 60 days. Mr. Brandenburg ordered that the shed be removed within 60 days and that a $100 per day fine will be charged for every day the shed remains on the site after that 60 day period. Special Magistrate Brandenburg adjourned the hearing at 4:15 P.M. Rita Taylor, Town Clerk m