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DIVISION 2. - CODE ENFORCEMENT
FOOTNOTE(S):
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State Law reference— Code enforcement, F.S. ch. 162.
Sec. 2-66. -Title.
Page 1 of 7
This division may be known and cited as the "Code Enforcement Ordinance of the town of Gulf
Stream, Florida."
(Ord. No. 06-02, § 1, 5-5.06)
Sec. 2-67. - Special magistrate term.
(a) There is hereby established a special magistrate who shall be designated by the town commission.
(b) The special magistrate shall be appointed for a term of two years and shall be appointed to serve
in an ex -officio capacity if the special magistrate serves other local governments as a special
magistrate. Such service to other local governments does not create duties inconsistent with
serving as special magistrate to the Town of Gulf Stream.
(c) The special magistrate shall be an attorney and a member of the Florida Bar.
(d) The special magistrate shall serve at the pleasure of the town commission.
(e) The special magistrate shall preside over code enforcement matters scheduled to be heard from
time to time.
(f) Minutes shall be maintained at all hearings presided over by the special magistrate; all hearings
shall be open to the public. The town shall provide clerical and administrative personnel as may be
required by the special magistrate for the proper performance of his/her duties.
(g) The town attorney or his/her designee shall represent the town by presenting cases before the
special magistrate.
(Ord. No. 06.02, § 1, 5-5-06)
State law reference— Special magistrates, F.S. § 162.03.
Sec. 2-68. -jurisdiction.
(a) The special magistrate shall have the jurisdiction and authority to hear and decide any alleged
violations of the following chapters of the Code and ordinances of the town as the same may be
amended from time to time:
(1)
Chapter 6. Animals;
(2)
Chapter 10.
Businesses, Professions and Occupations;
(3)
Chapter 18.
Emergency Systems;
(4)
Chapter 22.
Nuisances;
(5)
Chapter 26.
Offenses;
(6)
Chapter 38,
Waterways;
(7)
Chapter 42.
Buildings and Building Regulations;
(8)
Chapter 52•
Marine Facilities, Structures and Places; and
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(9) Chapter 66. Zoning.
(10) Chapter 70. Design Manual.
(b) The jurisdiction of the special magistrate shall not be exclusive. Any alleged violation of any of the
aforesaid codes and ordinances may be pursued by appropriate remedy in the court at the option
of the administrative official bearing responsibility for enforcement of that respective code or
ordinance.
(Ord. No. 06-02, 5 1, 5-5-05)
Sec. 2-69. - Enforcement procedure.
(a) An employee of the town who is duly authorized by the town manager and responsible for the
enforcement of such ordinances, hereinafter referred to as a "code enforcement officer," may
initiate code enforcement proceedings and issue citations or notices of violation to a person or
persons to appear in front of the special magistrate when the code enforcement officer, upon
personal investigation, has reasonable cause to believe that the person or persons are in violation
of the codes cited in this division. Employees who may be designated as code enforcement officers
may include but are not limited to, code inspectors, law enforcement officers, public works
inspectors, fire safety inspectors, and zoning inspectors.
(b) If a violation of the codes is found, the code inspector shall notify the violator, unless subsection
(c) below applies, and give such violator a reasonable time, which shall not exceed 30 days, to
correct the violation. Should the violation continue beyond the time specified for correction, the
code inspector shall notify the special magistrate and request a hearing. The special magistrate
shall schedule a hearing, and written notice of such hearing shall be hand delivered or mailed as
provided in section 2-75 to the violator. At the option of the special magistrate, notice may
additionally be served by publication or posting as provided in section 2-75. If the violation is
corrected and then recurs or if the violation is not corrected by the time specified for correction by
the code inspector, the case may be presented to the special magistrate even if the violation has
been corrected prior to the special magistrate hearing, the notice shall so state.
(c) If a repeat violation is found, the code inspector shall notify the violator but is not required to give
the violator a reasonable time to correct the violation. The code inspector, upon notifying the
violator of a repeat violation, shall notify the special magistrate and request a hearing. The special
magistrate shall schedule a hearing and shall provide notice pursuant to section 2-75. The case
may be presented to the special magistrate even if the repeat violation has been corrected prior to
the hearing, and the notice shall so state. If the repeat violation has been corrected, the special
magistrate retains the right to schedule a hearing to determine costs and impose the payment of
reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive
his or her rights to this hearing and pay the costs as determined by the special magistrate. A
repeat violation is a violation of a provision of a code or ordinance by a person whom the special
magistrate has previously found to have violated the same provision within five years prior to the
violation.
(d) If the code inspector has reason to believe a violation of the condition causing the violation
presents a serious threat to the public health, safety, and welfare or if the violation is irreparable
or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator
and may immediately notify the special magistrate and request a hearing.
(Ord. No. 06-02, 5 1, 5.5-06)
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State law reference— Similar provisions, F.S. § 162.06.
Sec. 2-70. - Conduct of hearings.
(a) At the hearing, the burden of proof shall be upon the town to show by substantial competent
evidence that a violation did occur or does exist, or has been repeated. Assuming proper notice of
hearing has been given to the respondent, either as actual notice or as provided herein, a hearing
may proceed in the absence of the respondent.
(b) All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not
apply. Irrelevant, immaterial and unduly repetitious evidence of a type commonly relied upon by
reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not
such evidence would be admissible at a trial in the courts of the state. Documentary and physical
evidence may be admitted.
(c) The special magistrate may inquire of any witness who is testifying before him/her. The
respondent, or his attorney and the town attorney and his/her designee shall be permitted to
inquire of any witness before the special magistrate. The special magistrate may call any witness
deemed necessary to provide a full and fair hearing of the case.
(d) At the conclusion of the hearing, the special magistrate shall issue findings of fad based on
evidence on the record and conclusions of law, and shall issue an order affording the proper relief
consistent with the powers granted herein. The order shall be stated orally at the meeting, and
shall be reduced to writing and mailed to the alleged violator within ten working days after the
hearing. In the event the town prevails in prosecuting a case before the magistrate, it shall be
entitled to recover all costs incurred in prosecuting the case before the special magistrate and
such costs may be included in the lien authorized under section 2-72 of this chapter.
Administrative costs, for purposes of this section, shall be $150.00. The order entered by the
magistrate shall include, in the event of noncompliance, a finding of noncompliance, that the
violator is required to pay the town administrative costs in the amount of $150.00, that the order
must be complied with by a specified date and that a fine, as well as the cost of repairs, may be
imposed if the order is not complied with by such date. The administrative costs shall be due
regardless of whether the order is complied with by the requisite date. A certified copy of such
order may be recorded in the public records of the county and shall constitute notice to any
subsequent purchasers, successors in interest, or assigns if the violation concerns real property,
and the findings therein shall be binding upon the violator and, if the violation concerns real
property, any subsequent purchasers or successors in interest or assigns.
(Ord. No. 06-02, 51, 5-5-06; Ord. No. 09-6, 41, 11-13-09)
State law reference— Similar provisions, F.S. § 162.07.
Sec. 2-71. - Powers.
The special magistrate shall have the power to:
(1) Adopt rules for the conduct of his/her meetings and hearings.
(2) Subpoena alleged violators and witnesses to his/her hearings.
(3) Subpoena evidence as necessary for his/her hearings, including, but not limited to physical
and documentary evidence such as records, surveys, plats and photo -graphs.
(4) Take testimony under oath.
(5)
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Issue orders having the force and effect of law which can command whatever steps are
necessary to bring a violation into compliance, such decision to be made at the hearing and
reduced to writing and mailed to the respondent(s) within ten working days thereafter.
(6) Establish and enforce fines pursuant to section 2-72
(7) Authorize the town attorney to foreclose on liens imposed pursuant to section 2-72 which
remain unpaid after a period of three months.
(8) Authorize the reduction of any fine he/she has imposed.
(Ord. No. 06-02, 51, 5-5-06)
State law reference— Similar provisions, F.S. § 162.08.
Sec. 2-72. - Administrative fines, costs of re -pair; liens.
(a) The special magistrate, upon notification by the code inspector that an order of the special
magistrate has not been complied with by the set time or, upon finding that a repeat violation has
been committed, may order the violator to pay a fine in an amount specified in this section for
each day the violation continues past the date set by the special magistrate for compliance or, in
the case of a repeat violation, for each day the repeat violation continues, beginning with the date
the repeat violation is found to have occurred by the special magistrate. In addition, if the violation
is a violation described in subsection 2-69(d) of this division, the special magistrate shall notify the
local governing body, which may make all reasonable repairs which are required to bring the
property into compliance and charge the violator with the reasonable cost of the repairs along
with the fine imposed pursuant to this section. If a finding of a violation or a repeat violation has
been made as provided in this section, a hearing shall not be necessary for issuance of the order
imposing the fine. If, after due notice and hearing, a special magistrate finds a violation to be
irreparable or irreversible in nature, it may order the violator to pay a fine as specified in
subsection (b), below.
(b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first violation, and
shall not exceed $500.00 per day for a repeat violation, and, in addition may include all costs of
repairs pursuant to subsection (a), above. However, if the special magistrate finds the violation to
be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000.00 per violation.
(c) In determining the amount of the fine, if any, the special magistrate shall consider the following
factors:
(1) The gravity of the violation;
(2) Any actions taken by the violator to correct the violation; and
(3) Any previous violations committed by the violator.
(d) A certified copy of an order imposing a fine may be recorded in the public record and thereafter
shall constitute a lien against the land on which the violation exists, and upon any other real or
personal property owned by the violator. Upon petition to the circuit court, such order may be
enforced in the same manner as a courtjudgment by the sheriffs of this state, including levy
against the personal property, but such order shall not be deemed to be a courtjudgment except
for enforcement purposes. A fine imposed pursuant to this section shall continue to accrue until
the violator comes into compliance or until a judgment is rendered in a suit to foreclose on a lien
filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to
this section runs in favor of the town and the town may execute a satisfaction or release of a lien
entered pursuant to this section. After three months from the filing of any such lien which remains
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unpaid, the town may authorize the town attorney to foreclose on the lien. No lien created
pursuant to the provisions of this section may be foreclosed on real property which is a
homestead under Section 4, Article X of the State Constitution.
(Ord. No. 06-02, § 1, 5-5-06)
State law reference— Similar provisions, F.S. § 162.09.
Sec. 2-73. - Duration.
No lien provided under this division shall continue for a period longer than 20 years after the
certified copy of an order imposing a fine has been recorded, unless within that time an action to
foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a
lien, the prevailing parry is entitled to recover all costs, including a reasonable attorney's fee, that it
incurs in the foreclosures. The town shall be entitled to collect all costs incurred in recording and
satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall
not be good against creditors or subsequent purchasers for valuable consideration without notice,
unless a notice of lis pendens is recorded.
(Ord. No. 06-02, § 1, 5-5-06)
State law reference— Similar provisions, F.S. § 162.10.
Sec. 2-74. -Appeals.
An aggrieved party, including the town, may appeal a final administrative order of the special
magistrate to the circuit court of Palm Beach County, Florida. Such an appeal shall not be a hearing de
novo, but shall be limited to appellate review of the record created before the special magistrate. The
appeal shall be filed within 30 days of the execution of the order to be appealed.
(Ord. No. 06-02, § 1, 5-5-06)
State law reference— Similar provisions, F.S. § 162.11.
Sec. 2-75. - Notices.
(a) All notices required by this section shall be provided to the alleged violator by certified mail, return
receipt requested; by hand delivery by the sheriff or other law enforcement officer, code
inspector, or other person designated by the local governing body; or by leaving the notice at the
violator's usual place of residence with any person residing therein who is above 15 years of age
and informing such person of the contents of the notice.
(b) In addition to providing notice as set forth in this section, at the option of the special magistrate,
notice may also be served by publication or posting, as follows:
(1) Such notice shall be published once during each week for four consecutive weeks (four
publications being sufficient) in a newspaper of general circulation in Palm Beach County,
Florida. The newspaper shall meet such requirements as are pre -scribed under F.S. ch. 50 for
legal and official advertisements.
(2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051.
(3) In lieu of publication as described in this section, such notice maybe posted for at least ten
days in at least two locations, one of which shall be the property upon which the violation is
alleged to exist and the other of which shall be at town hall.
(4) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall
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include a copy of the notice posted and the date and places of its posting.
(c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts
to provide notice by hand delivery or by mail as required under this section.
(d) Evidence that an attempt has been made to hand deliver or mail notice as provided in this section,
together with proof of publication or posting as provided in this section shall be sufficient to show
that the notice requirements of this section have been met, without regard to whether or not the
alleged violator actually received such notice.
(Ord. No. 06-02, § 1, 5-5-06)
State law reference— Similar provisions, F.S. § 162.12.
Sec. 2-76. - Procedure to request that a fine or lien imposed pursuant to section 2-72 be reduced;
conditions and criteria therefor.
(a) The owner of real property against which a fine has been imposed pursuant to section 2-72 may
apply to the special magistrate, through the town attorney or his/her designee, for a satisfaction of
the fine with less than full payment thereof. No such application shall be considered by the special
magistrate until the applicant has first shown that:
(1) All ad valorem property taxes, special assessments, town utility charges and other
government -imposed liens against the subject real property have been paid.
(2) The applicant is not personally indebted to the town for any reason.
(3) All town code violations have been corrected under necessary permits issued therefor.
(b) In considering an application to reduce a fine or lien imposed pursuant to section 2-72, no
satisfaction thereof shall be approved by the special magistrate with less than full payment
thereof, unless the special magistrate shall make a specific finding that no violation of any
ordinance de -scribed in section 2-68 of this Code exists on the subject real property.
(c) The balance of any fine or lien imposed pursuant to section 2-72 that is reduced by the special
magistrate shall be paid on such terms as approved by the special magistrate.
(d) If the property for which an application for a fine reduction is being considered is owned by a
government or quasi -government entity, the special magistrate may reduce such fine even if the
violation has not been corrected.
(e) Where recording has occurred and a lien filed against the property, any request for a satisfaction
of the lien with less than full payment shall be considered by the town commission not the special
magistrate.
(Ord. No. 06-02, § 1, 5.5-06)
Sec. 2-77. - Provisions supplemental and cumulative.
Nothing contained in this division shall in any way bar or prohibit the maintenance of a suit at law
or in equity by the town to enjoin or correct any violation of the ordinances of the town, nor to bar or
prohibit the town from filing charges against any person, firm or corporation violating any town
ordinance as provided by existing laws. This division shall be construed to be supplemental and
cumulative with any and all other remedies available to the town and not exclusive.
(Ord. No. 06.02, § 1, 5-5-06)
State law reference— Similar provisions, F.S. § 162.013.
Sec. 2-78. - Alternative code enforcement procedures.
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The town may employ other methods of code enforcement including, but not limited to, the
issuance of a notice to appear in county court or arrest forviolation of municipal ordinances as
provided for in F.S. ch. 901. Unless otherwise specifically authorized and provided for by law, a person
convicted of violating a municipal ordinance may be sentenced to pay a fine not to exceed $500.00,
and may be sentenced to a definite term of imprisonment not to exceed 60 days, in a municipal
detention facility or other facility as authorized by law.
(Ord. No. 06-02, 5 1, 5-5-06)
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TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
SCOTT W. MORGAN, Mayor G
ROBERT W. GANGER, Vice -Mayor �1
JOAN K ORTHWEIN
THOMAS M. STANLEY
DONNA S. WHITE
NOTICE OF VIOLMON
August 4, 2015
Christopher O'Hare
2520 Avenue Au Soleil
Gulf Stream, Florida 33483
Dear Mr. O'Hare:
Telephone
(561)276-5116
Fax
(561)777-0168
Town Manager
WILLIAM H. THRASHER
Town Clerk
RITA L TAYLOR
Hand Delivery
Article 1198
On August 29, 2011 the Town of Gulf Stream issued zoning approval
for the replacement of the roof on the home you own at 2520 Avenue
Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec
Corporation. On August 30, 2011, the City of Delray Beach issued the
re -roofing Permit Number 11-135146 to Rooftec Corporation. The' approved
permit covered re -roofing the structure with white, thru and thru,
flat cement tile with no slurry coating or paint. This work was started
but has, to date, not been completed in conformity with the permit
that was issued.
Section 42-29 CONSTRUCTION ABANDONMENT states that failure of the
permit holder or the property owner to complete construction once it
has been initiated within the timeframe of the building permit is
a violation.
Section 70-238 ROOFS requires that roofs on homes that are predominately
with Bermuda influences have flat, white thru and thru, smooth, un -coated
tile. The roof is in violation as there is no tile in place.
Section 70-99 ROOF DESIGN, SLOPE AND MATERIALS (3) Prohibited lists
inconsistent roofing materials visible from the exterior o t e property,
except approved accent materials. The material that has been applied is
inconsistent with roofing materials visible from the exterior of the
property or with any other house in town and thus is in violation
of this section of the Code.
100 SEA ROAD, GULF STREAM, FLORIDA 33483
Page 2
August 4, 2015
Christopher O'Hare
This is to be considered official notice to correct these violations
within 30 days of delivery and/or posting of this notice. It will be
necessary that you file a new application as there have been changes
in the Florida Building Code during this period of inactivity.
Failing to comply with this order shall result in an appearance before
the Special Magistrate and further action as provided in Chapter 2,
Division 2 of the Code of Ordinances, a copy of which is enclosed
along with copies of the Sections referred to herein.
Sincerely,
Rita L. Taylor
For:
William H. Thrasher, Town Manager
RETURN RECEIPT
Addressed To: Article #
Christopher O'Hare 198
2520 Ave. Au Soleil
Gulf Stremm, Florida 33483
ignature o essee
or
Date Delivered
4�4jAture
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
F
SCOTT W. MORGAN, Mayor
=
Sj
ROBERT W. GANGER, VIr Mayor
JOAN R. ORTHWEIN
i
THOMAS M. STANLEY
DONNA 5. WHITE
NOTICE OF VIOLATION
August 14, 2015
Christopher O'Hare
2520 Avenue Au Soleil
Gulf StreamR Florida 33483
Dear Mr. O'Hare:
Telephone
(567)276.5116
Fax
(567)737-0166
Town Manager
WILLIAM H. THRASHER
Town Clerk
RRA L TAYLOR
Hand Delivery
Article #199
On August 29, 2011 the Town of Gulf Stream issued zoning approval
for the replacement of the roof on the home you own at 2520 Avenue
Au Soleil and issued Receipt Number 5777 to your contractor, Rooftec
Corporation. On August 30, 2011, the City of Delray Beach issued the
re -roofing Permit Number 11-135146 to Rooftec Corporation. The approved
permit covered re -roofing the structure with white thru and thru,
flat cement tile with no slurry coating or paint.. This work was started
but has, to date, not been completed in conformity with the permit
that was issued.
Section 42-29 CONSTRUCTION ABANDONMENT states that failure of the
permit holder or the property owner to complete construction once it
has been initiated within the timeframe of the building permit is
a violation.
Section 70-238 ROOFS requires that roofs on homes that are predominately
with Bermuda influences have flat, white thru and thru, smooth, un -coated
tile. The roof is in violation as there is no tile in place.
Section 70-99 ROOF DESIGN, SLOPE AND MATERIALS (3)'Prohibited lists
inconsistent roofing materials visible from the exterior o t e property,
except approved accent materials. The material that has been applied is
inconsistent with roofing materials visible from the exterior of the
property or with any other house in town and thus is in violation
of this section of the Code.
100 SEA ROAD, GULF STREAM, FLORIDA 33483
Page 2
August 14, 2015
Christopher O'Hare
This is to be considered official notice to correct these violations
within 30 days of delivery and/or posting of this notice. It will be
necessary that you file a new application as there have been changes
in the Florida Building Code during this period of inactivity.
Failing to comply with this order shall result in an appearance before
the Special Magistrate and further action as provided in Chapter 2,
Division 2 of the Code of Ordinances, a copy of which is enclosed
along with copies of the Sections referred to herein.
Sincerely, .yl/
4e—ka9 / /
William H. Thrasher
Town Manager
Encls.
RETURN RECEIPT
Addressed To.
Christopher O'Hare
25207enue Au Soleil
QdZ �dtrehm. FL.33483
or
/ Article
%7�?
199
Date Delivered
Town of Gulf Stream Aftj 0.z(t✓fr-rd
100 ScaRoad ArTI c /-E ;Z,7 0
Gulf Stream, PL 33483
Fu
CODE ENFORCEMENT SPECIAL MAGISTRATE
TOWN OF GULF STREAM, FLORIDA
CASE NO: CE 15-1 10-30-]5
STATEMENT OF VIOLATION AND NOTICE OF HE k)UNG
Pursuant to section 2-75 of the Town of Gulf Stream Code of Ordinance, the undersigned hereby gives
notice of uncorrected Violations) of the Town Of Gulf Stream Code(s) more particular described
berein, and requests a PUBLIC HEARING before the CODE ENFORCEMENT SPECIAL
MAGISTRATE of the Town.
Location/Address where violation(s) exist(s): 2.520 Avenue An Soleil, Gulf- Stec . FL 334:
2. Legal Description: lot 36, Place An Soleil Subdivision
3. Name and address of owner/person in charge where violation(s) exist(s):
O'Hare and Shelley L.C. O'Hare, 2520 Av An Soleil, Gulf Stream. FL 33483
4. Violation of Town Code Section(s) and dcscd�tion(s): Sec. 42-29 CMS!UUU I@I ABAN0a*n7y
Failed to ccmplete construction within timafi ime- of Bldg. Penmt. Sec. 7 -23B RCOFS
Calls for flat, white thru'& thru, smooth, un�ated ti.le but no file bas been
inconsistent roofing materials visiblefirm exterior of or with any otherL
Sec.
(SEE ATTACHED "EXEEWIS OF VIOLATION)
5. Date of First Inspection: July 17, 2015
6. Date owner first notified of violati m(s): August 14, 2015
7. Date on/by, which violations are to be corrected: September 14. 2015
r++rrr+++«rr«++r+rsr++rr««+IMpORTANT NOTICErr+rrr«+++rr+++r«rrw«+rr
Unless the violator coucets the violation(s) described herein by the date set forth above AND
CONTACTS THE UNDERSIGNED CODE INSPECTOR AT 561-276-5116 to verify
COMPLIANCE with the Town Codc(s) cited herein, NOTICE IS HERBY GIVEN THAT A PUBLIC
DARING WILL BE CONDUCTED for the above referenced property before the Town of Gulf
Stream Code Enforcement Special Magistrate on 11-16-15 a< 2:00 P.M. or as soon thereafter
as the case can. be heard in the Town Hall Commission Chamber located at 100 Sea Road, Gulf
Stream, Florida.
YOU ARE REQUIRED TO APPEAR BEFORE THE SPECIAL MAGISTRATE at Out time to
answer allegations that you have violated the above cited sections of the Code of Ordinances of the
Town of Gulf Stream. IF YOU FAIL TO ATTEND, the Special Magistrate may base his/her findings
solely upon presentation by the Town Code Inspector
illiam )i T(uasher, Town Manager
Town of Gulf Stream
YOU MUST NOTIFY THE TOWN OF GULF STREAM AT (561) 276-5116 ON OR BBFORE
11-19-15 . THAT TEE PARCEL OF REAL PROPERTY OWNED BY YOU AND
DESCRIBED IN THIS NOTICE IS NO LONGER IN VIOLATION OF TOWN CODES AND THAT
YOU ARE REQUESTING A REINSPECTION.
IF TEE VIOLATIONS) IS/ARE NOT CORRECTED IN THE TIME SPECIFIED FOR
CORRECTION, OR IF THE VIOLATION(S) ITARE CORRECIT?D AND THEN RECUR(S) THE
CASE MAY BE PRESENTED TO THE SPECIAL MAGISTRATE EVEN IF TIM VIOLATION(S)
HAW BEEN CORRECTED PRIOR TO TBE SPECIAL MAGISTRATE HEARING.
IF YOU FAIL TO NOTIFY THE TOWN OF GULF STREAM, IT WILL BE PRESUMED BY THE
CODE ENFORCEMENT SPECIAL MAGISTRATE THAT THE PARCEL OF REAL PROPERTY
DESCRIBED HEREIN AND OWNED BY YOU CONTINUES TO BE IN VIOLATION.
If the Special Magistrate finds that you have committed a violation, he/she may order IMMEDIATE
COMPLIANCE with the Code and if you fail to comply with such order within the time period set
forth therein, he/she can IMPOSE A FINE OF UP TO $250.00 PER DAY for each violation remaining
in non-complinocc.
If the Town is successful in prosecuting your case before the Special Magistrate, FINES WILL BE
IMPOSED BY THE SPECIAL MAGISTRATE. SUCH FINES SHALL CONSTITUTE A LIEN ON
ANY REAL OR PERSONAL PROPERTY OWNED BY YOU. FAILURE TO PAY SUCH PINES
CAN RESULT IN FORECLOSURE AND COLLECTION ACTION BY THE TOWN.
If you disagree with a decision of the Special Magistrate, you may appeal to the CIRCUIT COURT OF
PALM BEACH COUNTY within 30 DAYS after the Special Magistrate's Order is entered.
If you wish to have the Special Magistrate RECONSIDER your case for any reason or if your case was
in tine and is now in compliance and you wish to request a REDUCTION IN FINE, an
APPLICATION AND THE APPROPRIATE FEE MUST BE SUBMITTED TO THE TOWN OF
GULF STREAM FOR ANY SUCH REQUESTS. ALL REQUaEMENTS FOR SUCH REQUEST
MUST BE MET FOR THE SPECIAL MAGISTRATE TO RECONSIDER YOUR CASE,
If a person decides to appeal any decision made by the Special Magistrate with respect to any matters
considered at subject meeting, they will need a record of the proceedings, and for such -purpose, they
may aced to ensure that a verbatim record of the proceedings is made, upon which record includes
testimony and evidence upon which appeal is to be based.
(FS 286.0105).
PLEASE GOVERN YOURSELF ACCORDINGLY.
By. Rita L. Taylor, Town grk
Town of Gulf Sheam
100 Sea Road
Gulf Shzam, FL 33483
(561) 276-5116
RETURN RECEIPT
Addressed To:
Article #
alit,
Date Delivered
h/S I / zu t5-
d�l�d a��rv�t-2d
Ai -77c/ -E �rl�
Town of Gull' Stream
100 Sea Road
Gulf Stream, FL 33483
Building Planning and
Zoning Departmeal 6
Ph. (Sfil) 276-511
CODE ENFORCEMENT SPECIAL MAGISTRATE Fat (561)737.0189 16
TOWN OF GULF STREAM, FLORIDA
CASENO: CE 19-1 11-10-15
STATEMENT OF VIOLATION AND NOTICE OF HEARING
Pursuant to section 2-75 of the Town of Gulf Stream Code of Ordinance, the undersigned hereby gives
notice of uncorrected violation(s) of the Town of Gulf Stream Code(s) more particular described
herein, and requests a PUBLIC HEARING before the CODE ENFORCEMENT SPECIAL
MAGISTRATE of the Town.
1. Location/Address where violation(s)exisl(s): 2520 Avenue Au Soleil, Gulf Stream,FI
2. Legal Description: Lot 36, Place Au Soleil Subdivision
3. Name and address of owner/person in charge where violation(s) exist(s): Christopher F.
O'Hare and Shelley L.C. O'Hare, 2520 Avenue Au Soleil, Gulf Stream, FL 33483
4. Violation of Town Code Section(s) and descriplion(s)�ec. 42-29 CONSTRUMON ABANCOI&M
Failed to complete construction within theo g. erlm. ec. 0-238
DMFS calls for flat, white thru h thru, smooth, ton -coated tile but no tile has been
prohibits inconsistent roofing materials visible from exterior of property or with
any other e un town. >na en.a een 'on
of this section.
(SEP ATTACHED "EXHIBITS OF VIOLATION")
Date of First Inspection: July 17, 2015
6. Date owner first notified of violation(s): a„gsr 14. 2015
7. Date on/by, which violations are to be corrected: September 14, 2015
+++++++++++++++++++++r+++++IMPORTANT NOTICE+++++++++*+++++++++++++++
Unless the violator corrects the violation(s) described herein by the date set forth above AND
CONTACTS THE UNDERSIGNED CODE INSPECTOR AT 561-276-5116 to verify
COMPLIANCE with the Town Codc(s) cited herein, NOTICE IS HERBY GIVEN THAT A PUBLIC
HEARING WILL BE CONDUCTED for the above referenced property before the Town of Gulf
Stream Code Enforcement Special Magistrate onZac b r 4. Oht 10 A_M_ or as soon thereafter
as the case can be heard in the Town Hall Commission Chamber located at 100 Sea Road, Gulf
Stream, Florida.
YOU ARE REQUIRED TO APPEAR BEFORE THE SPECIAL MAGISTRATE at that time to
answer allegations that you have violated the above cited sections of the Code of Ordinances of the
Town of Gulf Stream. IF YOU FAIL TO ATTEND, the Special Magistrate may base his/her findings
solely upon presentation by the Town Code Inspector
William H. Thrasher, Town Manager
Town of Gulf Stream
YOU MUST NOTIFY THE TOWN OF GULF STREAM AT (561) 276-5116 ON OR BEFORE
November 30, 2015, THAT THE PARCEL OF REAL PROPERTY OWNED BY YOU AND
DESCRIBED IN THIS NOTICE IS NO LONGER IN VIOLATION OF TOWN CODES AND THAT
YOU ARE REQUESTING A REINSPECTION.
IF THE VIOLATION(S) IS/ARE NOT CORRECTED IN THE TIME SPECIFIED FOR
CORRECTION, OR IF THE VIOLATION(S) IS/ARE CORRECTED AND THEN RECUR(S), THE
CASE MAY BE PRESENTED TO THE SPECIAL MAGISTRATE EVEN IF THE VIOLATION(S)
HAVE BEEN CORRECTED PRIOR TO THE SPECIAL MAGISTRATE HEARING.
IF YOU FAIL TO NOTIFY THE TOWN OF GULF STREAM, IT WILL BE PRESUMED BY THE
CODE ENFORCEMENT SPECIAL MAGISTRATE THAT THE PARCEL OF REAL PROPERTY
DESCRIBED HEREIN AND OWNED BY YOU CONTINUES TO BE IN VIOLATION.
If the Special Magistrate finds that you have committed a violation, he/she may order IMMEDIATE
COMPLIANCE with the Code and if you fail to comply with such order within the time period set
forth therein, he/she can IMPOSE A FINE OF UP TO $250.00 PER DAY for each violation remaining
in non-compliance.
If the Town is successful in prosecuting your case before the Special Magistrate, FINES WILL BE
IMPOSED BY THE SPECIAL MAGISTRATE. SUCH FINES SHALL CONSTITUTE A LIEN ON
ANY REAL OR PERSONAL PROPERTY OWNED BY YOU. FAILURE TO PAY SUCH FINES
CAN RESULT IN FORECLOSURE AND COLLECTION ACTION BY THE TOWN.
If you disagree with a decision of the Special Magistrate, you may appeal to the CIRCUIT COURT OF
PALM BEACH COUNTY within 30 DAYS afler the Special Magistrate's Order is entered.
If you wish to have the Special Magistrate RECONSIDER your case for any reason or if your case was
in fine and is now in compliance and you wish to request a REDUCTION IN FINE, an
APPLICATION AND THE APPROPRIATE FEE MUST BE SUBMITTED TO THE TOWN OF
GULF STREAM FOR ANY SUCH REQUESTS. ALL REQUIREMENTS FOR SUCH REQUEST
MUST BE MET FOR THE SPECIAL MAGISTRATE TO RECONSIDER YOUR CASE.
If a person decides to appeal any decision made by the Special Magistrate with respect to any matters
considered at subject meeting, they will need a record of the proceedings, and for such -purpose, they
may need to ensure that a verbatim record of the proceedings is made, upon which record includes
testimony and evidence upon which appeal is to be based.
(FS 286.0105).
PLEASE GOVERN YOURSELF ACCORDINGLY
By-, Rita L. Taylor, Toijh Clerk
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
(561)276-5116
Addressed To:
Article #
Mfr. or Mfrs. Christopher O'Hare 202
2520 Ave. Au Soleil —
Gulf Stream, FL 33483
Date Delivered
Gulf Stream, FL Code of Ordinances
��
Page 1 of 3
DIVISION 1.- GENERAL ARCHITECTURAL STANDARDS
Sec. 70-99. - Roof design, slope and materials.
Roofs are a major visual element and should be carefully considered as to the proportion, texture,
color and compatibility with both the house style and neighboring buildings. Similarities in roof types
create a visual continuity in the streetscape and neighborhood. Broad low roof lines with overhanging
eaves provide a reassuring sense of shelter and create shade for underlying windows.
(1) Preferred.
Exposed gutters and downspouts painted to match adjacent roof or wall material
Exposed rafter tails
Flashing, vent stacks, and pipes painted to match adjacent building surface
Gutters and downspouts designed as a continuous architectural feature
Hip or gable roofs
Low pitched roofs (under 28° or 6:12 slope)
Roof material true to architectural style
Roof overhangs (two to 21/2 feet)
Roof pitches over porches or ancillary structures (under 45° or 1:1 slope)
Simple roof geometry
Tile roof material
(2) Discouraged.
Roof material uncharacteristic of architectural style or zoning district
"S" -shaped tile in some districts
Shed roofs
Steep slopes (over 45° or 1:1 slope)
Very low pitched roofs (less than 180 or 5:12 slope)
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Gulf Stream, FL Code of Ordinances
(3) Prohibited.
Page 2 of 3
Low Slope
Under 28°
(6:12 slope)
Average Slope
28'45°
(6:1212-1:1)
j
a5•
Steep Slope
Over 45°
(Ll slope)
Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood
shingles
Bright, unnaturalistic-looking roof material
Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof
massing
Gambrel roofs
Glazed skylights on the streetside
Inconsistent roofing materials visible from the exterior of the property, except approved
accent materials
Mansard roofs
Metal roofs (except unpainted copper when used as a decorative accent or on minor
accessory structures)
Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow
Primary color tiles and shingles
Roll tile and similar tile styles in all districts except Place Au Soleil
S -Tile in all districts except Place Au Soleil
Solar panels on the streetside
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En
Hip
Gable
Shed (Discouraged)
Flat Prohibited
Gambrel (Prohibited
Mansard Prohibited
(3) Prohibited.
Page 2 of 3
Low Slope
Under 28°
(6:12 slope)
Average Slope
28'45°
(6:1212-1:1)
j
a5•
Steep Slope
Over 45°
(Ll slope)
Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood
shingles
Bright, unnaturalistic-looking roof material
Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof
massing
Gambrel roofs
Glazed skylights on the streetside
Inconsistent roofing materials visible from the exterior of the property, except approved
accent materials
Mansard roofs
Metal roofs (except unpainted copper when used as a decorative accent or on minor
accessory structures)
Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow
Primary color tiles and shingles
Roll tile and similar tile styles in all districts except Place Au Soleil
S -Tile in all districts except Place Au Soleil
Solar panels on the streetside
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Gulf Stream, FL Code of Ordinances Page 3 of 3
Unnecessarily complex or monolithic roof design
All white tile other than flat cement tile
(Ord. No. 00-7, § 36, 3-10-00; Ord. No. 03-9, § Z 10-10-03)
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Gulf Stream, FL Code of Ordinances Page 1 of 1
Sec. 42-29. - Construction abandonment.
All authorized construction shall be completed prior to the expiration of the building permit issued
by the county. The expiration of a building permit shall be prima facie evidence that the building
project has not commenced or has been abandoned.
Failure of the permit holder or the property owner to complete construction once it has been
initiated within the timeframe of the building permit is a violation that will be referred to the special
master pursuant to Chapter 2, Article III, Division 2, of this Code. Failure to restore the site to its
preconstruction conditions, including removal of all structural improvements and placement of sod on
all disrupted portions of the site, may result in a fine not to exceed $250.00 per working day after the
permit expires.
(Ord. No. 00-1, § 1, 3-10-00)
Editor's note—
Ordinance No. 03-13, § 1, adopted October 10, 2003, repealed § 42-29. Formerly, such section
pertained to approval of supplier of water prior to permit issuance and derived from § 4-6 of the 1978
Code. Subsequently, § 2 of same ordinance renumbered § 42-30 as § 42-29
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Gulf Stream, FL Code of Ordinances
Page 1 of 3
Sec. 70-238. - Roofs.
(a) Required. Flat, white thru and thru, smooth, un -coated tile and gray slate tile may be permitted on
homes that are predominately Georgian or British Colonial with Bermuda influences. Flat, gray
thru and thru, un -coated tile or slate -like tile may be permitted at the discretion of architectural
review and planning board and town commission through the Level III review process, subject to
the architectural review and planning board and the town commission making a determination
that such alternatives are appropriate for the neighborhood.
Gulf Stream— Bermuda style white tile roof (required)
(b) Preferred.
Combination hip/gable roofs
Decorative capped chimney
Exposed rafter tails
Flashing, vent stacks, and pipes painted to match adjacent building surface
Hip roof
Low pitched roofs (6:12 slopes)
Roof overhang (2-2Vz feet)
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Gulf Stream, FL Code of Ordinances
Simple roof geometry emphasizing long horizontal lines
White flat untextured tile
Page 2 of 3
Roof detail showing exposed rafter tails and decorative capped chimney
(preferred)
(c) Discouraged.
Dormers on single story houses
Gable
Pyramidal hip (often has too steep of slope)
Very low pitched roofs (slope less than 5:12)
(d) Prohibited.
Barrel tiles
Front gable except for entry features
Gambrel
Mansard
Monolithic roof design where inadequate measures were taken to reduce massing and height
of roof design
Pan tiles
Shed
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Gulf Stream, FL Code of Ordinances Page 3 of 3
Shingles
Tiles other than white flat untextured tiles or gray slate tiles
Unnecessarily complex roof geometry
(Ord. No. 00-1, 5356, 57,340-00; Ord. No. 12-4, §6,7-13-12)
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as
I
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111 11 1111M11111
INTERLOCAL AGREEMENT BETWEEN
THE CITY OF DELRAY BEACH AND
THE TOWN OF GULF STREAM
THIS AGREEMENT entered into on this Jb-'*—day ofnJ 6/-
2009 by and between the CITY OF DELRAY BEACH, FLORIDA, A Florida municipal
corporation, hereinafter referred to as "the CITY" and the TOWN OF GULF STREAM,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "the TOWN".
WITNESSETH:
WHEREAS, the health, safety and welfare of the residents of both TOWN and
CITY will best be served by the CITY inspecting certain structures lying within the
TOWN'S limits; and,
WHEREAS, this Agreement evidences the intentions of the respective parties to
cooperate with each other in the furtherance of the public's interest.
NOW THEREFORE, it is hereby agreed by and between the parties hereto as
follows:
Section 1. Definitions:
Code: When used herein, the term "Code" shall mean the Florida Building Code
as amended.
Department When used herein, the term "Department" shall mean the City of
Delray Beach Community Improvement Department.
Building Official: Where used herein, the term "Building Official" shall mean the
Chief Building Official for the City of Delray Beach.
Fees : When used herein, the term "fee" or "fees" shall mean the fee(s) charged
as a condition for plan review, building, electrical, or plumbing permit and/or the
inspection fee charged for inspection of work; both made a part hereof.
Inspector. When used herein, the term "inspector' shall mean any Building
Inspector in the employ of the CITY.
Permit When used herein, the term "permit" shall mean permit issued by the
CITY for any construction work.
Permittee: When used herein, the term "permittee" shall mean any individual,
corporation or other business entity applying for and/or holding a valid permit.
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Structures; When used herein, the term "structures" shall mean any and all
above -ground, in -ground, and/or underground structures, and any and all construction,
mechanical, electrical and/or plumbing work for which a permit must be obtained.
Section 2. The CITY and TOWN, in consideration of the mutual promises and
benefits hereinafter set forth, receipt of which is hereby acknowledged, do hereby agree
as follows:
A. The purpose of this Agreement is to provide the TOWN with the expertise
and assistance of the CITY'S Department for the inspection and permitting of certain
construction projects within the TOWN'S limits for compliance with the Florida Building
Code.
B. The method by which this purpose will be accomplished is as follows:
The TOWN shall adopt an ordinance which:
a. incorporates by reference the provisions of the Code as
presently in force and effect in the CITY;
b. vests the responsibility for reviewing plans for compliance
with the Code, issuing permits, and inspecting structures
with the TOWN in the CITY'S Department; and
C. upon adoption by the CITY of any amendments to said
Code, the TOWN shall immediately, upon notice by the CITY
amend its ordinance to accurately reflect such changes.
2. a. Plans for construction shall be submitted to the TOWN in
triplicate by the applicant and shall be reviewed by TOWN
for compliance with TOWN'S Zoning Code and other non -
construction compliance. The three (3) plans shall be
stamped and submitted to CITY by contractor or owner with
the attendant permit applicant and fees.
The Department shall review and process all plans,
submitted in triplicate, checking the same for compliance
with the Code; and determine the subsidiary permits
necessary and the amount of fees. For processing and the
inspection service, CITY shall receive one hundred percent
(100%) of the permit fee. Said fees shall be collected by
CITY. After reviewing and processing said construction
plans, CITY shall forward one set of said plans to the
contractor/owner with the permit and another set to the
TOWN with a copy of the permit. CITY shall not forward any
plans to TOWN without the attendant permit.
2
3. Applications for all permits shall be submitted to CITY on CITY
approved forms. The CITY shall process and prepare all permits for construction within
the TOWN. Any authorized individual may request the Department to inspect a project
on a given time and date. The permit inspection card and plans shall be on the
construction site at all times and the inspector, upon the completion of his inspection,
will mark the card either as to acceptance and the date thereof, or will note reason for
rejection and the date thereof. Upon satisfactory completion of the project and final
inspection, the Building Official will prepare the Certificate of Occupancy and will
forward said Certificate of Occupancy to TOWN which will issue the Certificate of
Occupancy to the permitee, or authorized agent thereof, with a copy to the CITY.
4. The TOWN shall be solely responsible for the enforcement of
violations of the provisions of said Code by persons, firms or corporations engaged in
construction within the TOWN.
5. The TOWN shall assume responsibility for the administration of all
consumer inquires. The TOWN shall forward to the Building Official only those inquires
concerning the plan review and inspection process, set forth above, and all others shall
be the responsibility of the TOWN.
6. The Building Official shall have the right to refuse to inspect any
structure within TOWN should he/she deem it in the best interest of CITY. All such
determinations not to inspect a structure shall be made in writing to TOWN.
7. Subject to the limitations of Florida Statute 768.28, the TOWN shall
hold harmless and indemnify CITY against any and all claims for damages of every kind
and nature including, but not limited to claims for property damage, personal injury or
death, arising out of the plan review and inspection process.
8. The TOWN shall annually supply CITY with a Certificate of
Insurance from the TOWN'S insurance carrier evidencing all the necessary insurance
coverage for CITY and the Building Official or any authorized agent of the Department
reviewing plans for construction within the Town and/or making inspections within the
TOWN. Said insurance certificates and coverage shall be satisfactory to the CITY'S
Risk Manager. The CITY is not obligated to undertake any action under this Agreement
until the CITY'S Risk Manager has approved said insurance certificate and coverage.
The approval by the CITY S Risk Manager shall not be unreasonable withheld.
Section 3. Duration.
This Agreement shall be a continuing nature unless cancelled by either party for
any reason and without penalty, on not less than sixty (60) days written notice. Any
fees paid to CITY where inspection services are not completed shall be prorated in
accordance with the percentage of inspection completed and any excess shall be
refunded to TOWN.
Section 4. Miscellaneous
A. This Interlocal Agreement shall be filed pursuant to the requirements of
Section 163.01(11) of the Florida Statutes,
B. This Agreement shall be governed by and in accordance with the Laws of
Florida. The venue for any action arising from this Agreement shall be in Palm Beach
County, Florida.
C. Neither party shall assign or transfer any rights or interest in this
Agreement without the written consent of the other party.
D. This Agreement shall not be valid until signed by the Mayor and the City
Clerk of each party.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed by W6ifiTulg_ ;alAflOgzed officers on the date set forth above.
ATTEST.' r Cl O ELRAY C F O IDA
BY r_tJ By.
(>iiy Cteric Mayor
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ApproVedas - r
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By:
( TOWN O GULF STR7M,r FLORIDA
ATTEST: By {f/
Mayor
By:
City Clerk
Approved as
By:
C Attorney
4
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AMENDMENT NO.1 TO THE INTERLOCAL AGREEMENT BETWEEN
THE CITY OF DELRAY BEACH AND THE TOWN OF GULF STREAM
THIS AMENDNO. 1 to the Interlocal Agreement with the Town of Gulf
Stream is made this day of 2010, by and between the
CITY OF DELRAY BEACH, a Florida municipal corporation (the "City"), and the TOWN
OF GULF STREAM., ("Town").
WITNESSETH:
WHEREAS, the City and the Town are desirous of amending the Interlocal
Agreement to provide a funding source for the city's inspection efforts within the Town.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Incorporation of Recitals. The parties hereby represent that the above
recitals are hereby incorporated as if fully set forth herein.
2. Revision. Paragraph 2 of the Agreement is amended to add
subparagraph C as follows:
C. The Department shall collect the appropriate County impact
fees for Town Permits issued by the City. Said fees collected by City on behalf
of Town should be accounted for separately by City and a fee recap report shall
be provided by City for Town regarding all Town impact fee revenues/collections
remitted to Palm Beach County. to Palm Beach County. Ci�shall retain a 3.4% administrative fee for allretain a 3.4% administrative fee for all
Town impact fee assessments. assessments.
T_ `P
CITY OF DELRAY BEACHn"FzD iRpOF / RE -ROOF PERMIT APPLI
AUG 2 9 2011 TOWN OF GULF STREAIh
�VW I" Avenue Delray Beach FL 33444 Approv��ffo�r��PermtL Mutt
243.7200 Fax (561) 243-7221 Town of Gulf Stream, FLI�(//�Date.
Website: mydeiravbeach.com am` l
PROPERTY CONTROL MA —3-�— U� - c •�W -Q3V(J
PLEASE PRINT
IDB SITE ADDRESS !kJ c"iv�
PROPERTY OWNER NAME
HOMEPHONE(_)
PROPERTY OWNER ADDRESSr�'
ROOF CONT'R (CON'IPANY)NAME
ROOF ONT'RADD SS 1 SSU 0.,1- =114CITY-�_. ST_
BUS PHONEC:�,A -()7 �� CELL
FAX 'Z -1-f11 (1-� - E-MAIL
FOR OFFICE SENLY
BLDG PERMIT t' #
ROOF PERMIT B
PERMIT FEE
PLAN CHECK FEE
MCR ft
R! •r rr rHr • run rrrq r •u Tatra»
APPROVALS
PLAN DATE
P & Z DATE.
NOTE: PERMIT EXPIRES IF WORK IS NOT STARTED WITHIN 180 -DAYS OR IF ACTIVITY LAPSES FOR 180 DAYS PLANS MUST SE
ON THE JOB SITE FOR ALL INSPECTIONS. ��FIIN/A� L INSPECTION IS REQUIRED ON ALL PERMITS.
r�!—Jy]f,)
PROJECT COST (Labor and Material) S a
�k one: NEW CONSTRUCTION r RECOVER OVER EXISTING REMOVE EXISTING & REPLACE _RIR .UC UNITS
. (Engineer's Letter Required) (Mcch Permit RequmA)
Check one: V SINGLE-FAIDQLY* _MU1;77-FAMILY _COMMERCIAL
`rv=GATION REOU REMENTS.IF SINGLE FAMILY:
I YEARBUU.T (check one): j/ BEFORE MARCH 2002 (Go To #2) _AFTER MARCH 2002
2. HOUSE VALLE: S `/ 'q MUSTPROVIDE* HOME INSURANCE SUNIMARY SHEET OR
(IF $300,000, OR MORE, NOT INCLUDING I -AND VALUE, COPY OF MOST RECENT TAX BLT L OR
GO TO #3) PROPERTY APPRAISER OFFICE WEBPA}G,E
3. SUBMIT RE- ROOFING MITIGATION �ACdJ%DING.4PPLICATION
TYPE'COLOR OF ROOF MATERIAL MMOVED
NOTE. FOLLOW M:ANUFACTURER'S G
1
ROOF TYPE(CIRCLE)
FLAT
/1-Oyiy, ae
141,4 jol omo,�J'
WORKERS COMP#1
before me this �i day
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DISPLAY THIS CARD IN FRONT OF JOB
CITY OF DELRAY BEACH
BUILDING PERMIT
PERMIT NO. f' 35 b
PROJECT ADDRE
CONTRACTOR:
DESCRIPTION OF WORK
: YOUR FAILURE TO RECORD A
NOTICE OF COMMENCEMENT MAY RESULT IN YOUR
PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.
IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH
YOUR LENDER OR AN ATTORNEY BEFORE RECORDING
YOUR NOTICE OF COMMENCEMENT.
NOTICE: In addition to the requirements of this permit, there
may be additional restrictions applicable to this property
that may be found in the public records of this county, and
there may be additional permits required from other
governmental entities such as water management districts,
state agencies, or federal agencies.
NO INSPECTION WILL BE MADE UNLESS PERMIT CARD IS
DISPLAYED WITH THE APPROVED PLANS READILY AVAILABLE
CERTIFICATE OF OCCUPANCY MUST BE SECURED BEFORE TFIIS BUILDING CAN BE
USED FOR ANY PURPOSE.
DO NOT REMOVE THIS CARD BEFORE COMPLETION
INSPECTION (561) 243-7218 OR (561)243-7200
E
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-7-�-8
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL DISTRICT, IN AND
FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Petitioner,
V.
Appellate Division (Civil)
Case No.: 2012CAOI107
Town of Gulf Stream,
Respondent.
AMENDID
Petition for Writ of Certiorari from Decision of Town of Gulf Stream Board of
Adjustment made May 11, 2012 and rendered May 30, 2012
Denying Petitioner's Application fora revision to an existing Building Permit for a
replacement Metal Roof
Attorneys for Petitioner
Carter Law Firm, LLC
102 NE 2n° Street, Suite 179
Boca Raton, FL 33432
Tel: 561-368-9900
jo hn(a)carterlawfirm. us
Louis Roeder
7414 Sparkling Lake Road
Orlando, FL 32819
Tel: 407-3524194
Fa)c 866-610-60%
lou@loumeder.com mm
AMENDED PETITION FOR WRIT OF CERTIORARI
The Petitioner, CHRISTOPHER F. O'HARE ("O'Hare") respectfully
petitions this Court for a Writ of Certiorari to review the Decision of the Board
of Adjustment of the Town of Gulf Stream ("Gulf Stream"), denying Petitioner
the right to apply for a revision to the existing residential Building Permit
allowing for the replacement of a tile roof with a metal roof.
BASIS FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a Writ of Certiorari pursuant to the Gulf
Stream Code of Ordinances, Section 66-174(10) and under Rule 9.030(c)(3) of
the Florida Rules of Appellate Procedure.
STANDARD OF REVIEW
Where a party is entitled as a matter of right to seek review in the circuit
court from an administrative action, the circuit court must determine (1)
whether procedural due process was accorded; (2) whether the essential
requirements of the law have been observed; and (3) whether the administrative
findings and judgment are supported by competent substantial evidence. See
City of Deerfield Beach v. Vaillant, 419, So. 2d 624 (Fla. 1982); Haines City
Community Development v. Hepgs, 658 So. 2d 523 (Fla. 1995); Cherokee
Crushed Stone. Inc. v. City of Miramar, 421 So.2d 684 (Fla. App. 4Dist.,
2
1932). As set forth in further detail below, all three elements are present in this
instance.
First, the lower Tribunal's action in denying O'Hare's permit application
resulted from an impermissible act of legislative power in violation of the
essential requirements of law. Additionally Gulf Stream's unlawful "legislative
act" violated O'Hare's procedural due process rights.
Second, in denying O'Hare's application, Gulf Stream refused to accept
the plain meaning of its own ordinance. Instead, because of some unspecified
suspicions regarding O'Hare's interest in placing a metal roof on his home, it
determined that it was necessary to impose a new and unwritten condition on
O'Hare's permit application.
Third, despite allegations by Gulf Stream representatives of "suspicious
conduct" by O'Hare, there is an absence of competent evidence to support such
a finding. Accordingly there were no finding of facts made to support Gulf
Stream's denial of O'Hare's right to obtain a metal roof permit.
To the contrary, there is substantial competent evidence found in the
record to support findings that (1) O'Hare was wrongfully denied the right to
apply for a metal roof permit; (2) despite being denied the right to apply,
O'Hare fully satisfied Gulf Stream's requirements for a metal roof; and (3)
3
O'Hare is entitled to the issuance of a re -roofing permit allowing him to install
a metal roof on his existing residence.
STATEMENT OF THE FACTS
1. On August 29, 2011, O'Hare submits a "ROOF/RE-ROOF PERMIT
APPLICATION" to Gulf Stream for a replacement roof on the single family
residence to which he was malting improvements. The approved roofing
material was concrete tile which was similar to the existing the on the roof at
the time the re -roof permit was applied for.
2. The Re -Roofing Permit ("Permit") was issued on or about the day it was
applied for. It contained no expiration date although it required that work be
commenced within 180 days or it would expire.
3. After the existing roof tile had been removed in preparation for the roof
installation, O'Hare became concerned that the underlying structure of the
building may not be able to safely support a concrete tile roof.
4. On November 15, 2011, O'Hare's agent, a representative of Roof Tec, the
roofing contractor, met with William H. Thrasher ("Thrasher"), Gulf Stream
Planning and Building Department Administrator also Town Manager, to
determine the appropriate procedure for modifying the Permit to allow for the
installation of metal roofing materials in lieu of the concrete tile material that
had been approved.
4
5. On November 15, 2011, Thrasher, acting as the Planning and Building
Department ("Building Department") Administrator ("Administrator"),
responded to the inquiry by O'Hare's agent by stating that "No metal roofs are
permitted in Gulf Stream, period".
6. Prior to the November 15, 2011 meeting between Thrasher and O'Hare's
roofer, O'Hare learned, contrary to Thrasher's representation, that Gulf
Stream's building code did in fact allow for the installation of metal roofs on
single family homes. While there is a general prohibition of metal roofs
contained in Section 70-99 (3) of Gulf Stream's building code, this is pre-
empted by an exception contained in Section 70-187 (2) of the code.
7. To determine whether he would qualify for a Section 70-187 (2)
exception, O'Hare retained Terrence E. Lunn, a licensed professional engineer
to inspect the existing structure on December 13, 2011. On December 14, 2011
Lunn provided O'Hare with a signed and sealed Engineering Certification
("Certification") which concluded that the subject structure would not support a
concrete tile roof.
8. On February 21, 2012 O'Hare provided Thrasher with a copy of the
Certification and expressed his intention to apply for a change to the Permit
pursuant to Section 70-187 (2).
9. On March 6, 2012 Thrasher, the Town Manager, acting as Administrator,
issued an administrative decision (in the form of a letter) informing O'Hare that
5
in order to receive approval to install a metal roof, he would have to obtain a
variance as provided for in Gulf Stream's Land Use Code (Chapter 66 of the
Gulf Stream Code of Ordinances).
10. O'Hare appealed the March 6, 2012 administrative decision to the Board
of Adjustment ("Board") of the Town of Gulf Stream. A public hearing on the
appeal was commenced on April 1.3, 2012 and continued on May 11, 2012. On
May 11, 2012 the Board orally announced its denial of O'Hare's appeal.
11. On May 30, 2012 the Board issued its Notice of Final Action, sustaining
the opinion of the Administrator and requiring that O'Hare obtain a zoning
variance before proceeding with the installation of a metal roof.
RELIEF SOUGHT
The Petitioner is seeking a determination that in denying his right to
apply for a building permit to install a replacement metal roof on his residence,
Gulf Stream exceeded its lawful authority and violated O'Hare's property
rights. Based upon such a determination, Petitioner is requesting this court to
reverse the decision of the Gulf Stream Board of Adjustment and remand this
matter to Gulf Stream with the directive that a building permit forthwith be
issued to allow the construction of a metal roof on O'Hare's residential
structure.
6
ARGUMENT
When all sections of the Gulf Stream Code of Ordinances are read
together as it relates to the issue of whether a home owner can re -roof an
existing single family structure with metal roofing materials, it is clear that
(when factually applicable) Section 70-187 (2) controls. In fact this is
irrefutable as evidenced by the admissions of Gulf Stream's attorney, John
Randolph, who made such statements at the first hearing of the Board of
Adjustment conducted April 13, 2012. See pages 32 to 33 of the transcript.
While metal roofs are generally prohibited in the Town of Gulf Stream,
the unambiguous language of Section 70-187(2) states that they may be
approved in "instances of re -roofing of existing structures based upon an
engineer's certification that the existing structure will not support a tile roof',
In this case O'Hare initially intended to re -roof his existing structure with
concrete tiles. He appropriately applied for and was granted a permit that,
among other things, enabled him to remove the existing roof and prepare the
structure for installation of concrete tiles.
Approximately three (3) months after the permit was issued following
removal of the existing materials and examination of the underlying structure,
O'Hare became concerned that the roof may not be capable of safely carrying
the weight of concrete tiles. Accordingly, he requested that his roofing
contractor investigate the option of a much lighter metal roof. Upon inquiry to
the Gulfstream Planning & Building Administrator, an agent for the roofing
contractor was told categorically that metal roofs were not allowed in Gulf
Stream and essentially that "O'Hare need not apply". No mention was made of
the exception contained in 70-187 (2) by Gulf Stream's building department
officials.
After learning of the Sec. 70-187(2) exception on his own, O'Hare
obtained an Engineer's Certification stating that the existing structure could not
support a concrete tile roof and presented this to the Administrator. After the
Certification was submitted, the Administrator determined that O'Hare should
not be allowed the opportunity to apply for a revised roof permit for a metal
roof. (See March 6, 20121etter-decision by Thrasher) This was based on
Thrasher's interpretation of the code, which he said required O'Hare to obtain a
zoning Variance pursuant to Gulf Stream's Land Use Ordinance which is
codified in Chapter 66 of its Code of Ordinances. (See March 6, 2012 decision
letter)
While judicial deference should be given to an agency's interpretation of
its own rules, this deference ceases when the agency's construction clearly
contradicts the unambiguous language of the rule. Kearse Y. Department of
Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985). The
instant case has facts similar to those in Woodley v. Department of Health and
Rehabilitative Services Dist. 3, (Fla. App. 1 Dist., 1987). In Woodley, the First
District Court of Appeal reversed an agency's denial of a permit due to the
agency adding an additional requirement to the unambiguous language of its
own rule which it was required to follow.
As in Woodley, it is improper for the Building Department to effectively
amend its own rules by inserting a new and unwritten provision into the
building code it is obligated to follow. To allow this would be tantamount to
permitting an administrative body to legislate. In the case at hand, Thrasher's
decision must be overturned since it denied O'Hare his right to procedural due
process and is a clear departure from the essential requirements of the law.
The only subject of the public hearings below was the review of
Thrasher's denial of O'Hare's entitlement to apply for a metal re -roofing
permit. The legal sufficiency of the Certification was never called into question
by the Administrator prior to the Administrative Appeal. As such there was no
issue before the Board on this appeal that concerned the reliability of the
Certification.
Nonetheless the Board primarily focused on this non -issue and arguably
became fixated on concerns about the reliability of the Certification. While
never clearly articulated, it is evident from statements made at the Hearings that
the Board and the Administrator have suspicions that there is something
dubious about O'Hare's intentions of installing a metal roof and that the
Engineering Certification he submitted is somehow tainted or unreliable.
For these reasons the Board perceived that the Department possessed
inherent authority to require an independent review and "report" from the
Town's engineer before it could accept a permit application from O'Hare. It is
indisputable that the Board's decision to affirm the Administrator's decision
was the result of its singular focus and debate on this non -issue. (See page 33
May 11, 2012 hearing) Confusion was added to this debate by members of the
Board who mischaracterized the Certification requirement of 70-137 (2) as
calling for an engineering "report".
Again, questions of reliability and/or verification of the Certification
were not issues to be considered in the Appeal. Even if these issues were
relevant to the Board's decision, there is an absence of substantial competent
evidence in the record to show cause why O'Hare's Certification should not be
accepted by the Department.
By contrasting Thrasher's March 61h administrative ruling with the May
10
30°i appellate decision of the Board, it is obvious that the Town of Gulf Stream
failed to comply with the essential requirements of the law, including its own
legislative enactments when considering O'Hare's request to re -roof his
residence with metal materials:
"A variance application would be required [in connection with
O'Hare's request for a modification of his existing building permit]
to allow the use of metal roof materials." March 6, 2012
administrative ruling of Planning and Building Department.
"The Town Commission, sitting as the Board of Adjustment,
sustained the opinion of the Building Official that a variance is
required in that the applicant has not satisfied that portion of the
Code which provides an exception to allow a metal roof because [the
applicant has] not allowed the Town to verify the engineering report
[it] submitted, with regard to the strength of the structure." May.30,
2012 decision of Board ofAdjustment.
Even if sufficiency and/or legitimacy of the subject Certification was an
issue before the Board, which it was not, there is no evidence to suggest that
the Certification did not satisfy Gulf Stream's own statutory requirements for
obtaining permission to install a metal roof. Clearly O'Hare's procedural due
process rights have been violated by the Town of Gulf Stream.
The factually correct, although legally invalid reason that the
Administrator denied O'Hare the right to obtain a metal re -roofing permit, is
it
that the Town of Gulf Stream has a bias against metal roofs and does not wish
to see them on homes inside its borders. (See page 17, line 21 of April 13, 2012
hearing) which reinforces Thrasher's November 15, 2011 declaration "no metal
roofs in Gulf Stream, period." In Gulf Stream's attempt to legally justify the
unlawful imposition of this bias against O'Hare, both the Administrator and
several Board Members made the following curious statements on the record
which illustrate its eagerness and creativity to thwart O'Hare's right to a metal
roof:
"It appears obvious to me that the metal roofs are not desired, and it
is not something that, on a single-family home, that the residents
want to have appearing."
See page 17 of April 1 `r' Hearing -Thrasher.
"Just to say that because they provided this document (engineer's
certification) and because the code says it should prevail, it should
have some.... the town should have some voice in what.... their
engineers, their experts might say".
Seepage 18 of April 13"' Hearing -Thrasher.
"And again, going back to the intent of the manual, one of our major
12
items was to prohibit metal roofs."
Seepage 2.3 of May 11 "' Hearing -Board Member Fred B. Devitt
"I believe under the circumstance there's a variance required,
because [there's] so much question with your engineers report.
See Page 26 of April 13`I' Hearing -Board Member Joan K Ortwein.
O'Hare does not dispute Gulf Stream's right to be biased against metal
roofs. It is recognized that Gulf Stream possesses the power to legislate and
adopt provisions in its Code of Ordinances that allow it to implement such
biases.
O'Hare simply requested that the Town of Gulf Stream lawfully apply
the section of its "existing" building code dealing with residential re -roofing
according to its plain and unambiguous terms so that he could complete the
installation of a roof that is safe for him and his family. Should Gulf Stream
later wish to amend its code it must do so in accordance with constitutional and
legal principles and constraints and not by administrative action.
WHEREFORE, the Petitioner respectfully requests this Court exercise
jurisdiction and grant a Writ of Certiorari quashing the decision of the Board of
Adjustment of the Town of Gulf Stream and determining that Petitioner has satisfied
13
the requirements for the metal roof exception set forth in Section 70-187 (2) of Gulf
Stream's Code of Ordinances. Peddoner further requests that this matter be remanded
to the Town of Gulf Stream with instructions that it compel its Building Department
Administrator to forthwith take all appropriate action consistent wide the Court's
decision.
.l---
Dated: June, 2012.
Respectfully submitted,
40u-&- Carter, Esq.
n-Coun el for Petitioner
Flor{da B r No. 460036
102 NE 2 d Street, Suite 179
Boca Raton, FL .3.3432-3908
Telephone: (561) 368-9900
Facsimile: (561) 368-8499
.1
"'—Roeder, Esq.
Co-Cou*1 for Petitioner
Florida Wr No. 0004316
7414 Sparkling Lake Road
Orlando, FL 32819
Telephone: (407) 352-4194
Facsimile: (866) 610-6090
14
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER O'HARE, APPELLATE DIVISION (CIVIL): "AY"
Petitioner, DOO
CASE NO. 502012CA011078X3; MB
V.
TOWN OF GULF STREAM,
Respondent.
Opinion filed: JAN 2 8 2013
Petition for Writ of Certiorari from Town of Gulf Stream Board of Adjustment
For Petitioner: John Carter, ESq.
102 NE Second SL, Ste. 179
Boca Raton, FL 33432
Louis Roeder, Esq.
7414 Sparkling Lake Rd.
Orlando, FL 32819
For Respondent: John C. Randolph, Esq.
505 South Flagler Dr., Ste. 1100
West Palm Beach, FL 33401
PER CURIAM.
The Petition for Writ of Certiorari is DENIED.
SASSER, KELLEY, and BRUNSON, JJ., concur.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORID
FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WESTPAL
BEACH, FL 33401
June 18, 2013
CHRISTOPHER F. O'HARE
CASE NO.: 41313-0621
L.T. No.: 2012CA01107
v. TOWN OF GULF STREAM
Appellant / Petitioner(s) Appellee / Respondent(s)
BY ORDER OF THE COURT:
ORDERED that the petition for writ of certiorari filed February 27, 2013, is hereby
denied on the merits.
MAY, C.J., TAYLOR and LEVINE, JJ.., Concur.
I HEREBY CERTIFY that the foregoing is a true copy of the original court order.
Served:
cc: John C. Randolph John E. Carter
Tyler K. Pitchford Louis Roeder, III
ck
ARILYN BEUTTENMULLER, Clerk
Fourtli District Court of Appeal
Tracy S. Carlin
Stephanie Eassa Rapp
IN THE DISTRICT COURT OF APPEAL
FOURTH DISTRICT OF FLORIDA
CHRISTOPHER F. O'HARE,
Petitioner,
vs.
Town of Gulf Stream,
Respondent.
Case No.: 4D13-621
L.T. No.: 2012 -CA -01107
AMENDED PETITION FOR WRIT OF CERTIORARI
Petitioner, Christopher F. O'Hare ("O'Hare"), petitions this Court to issue a
writ of certiorari quashing the decision of the circuit court below and remanding
with instructions for the circuit court to: 1) quash the decision denying O'Hare's
permit application, which sought to install a metal roof on his single-family
residence and requiring O'Hare to apply for a variance before any metal roof will
be permitted; and 2) instruct the circuit court to require the Town of Gulf Stream to
advise O'Hare as to the type of metal roof that would be appropriate to the building
and the neighborhood.
INTRODUCTION
This "second-tier" certiorari proceeding arises out of the circuit court's per
curiam affirmance of the decision of the Commission of the Town of Gulf Stream
(the "Town") sitting as the Board of Adjustment (the "BOA"), which denied
O'Hare's request for a revision to his existing residential Building Permit (the
"Permit"). The requested Permit revision would have permitted O'Hare to
substitute the previously -approved concrete tile roof with a metal one. O'Hare had
received an engineer's certification that the structure of O'Hare's residence would
not support concrete tile. The BOA concluded that O'Hare was required to apply
for a variance before he would be permitted to install a metal roof because O'Hare
would not allow the Town's engineer to inspect the premises and verify the
professional opinion of O'Hare's engineer that O'Hare's residence could not
support a concrete tile roof, a condition not required by the plain language of the
Town's design manual (the "Code"). The question here is whether the Code
allowed the Town to reject O'Hare's Permit revision application on this basis.
O'Hare established below that it did not.
BASIS FOR INVOKING JURISDICTION
Article V, section 4(b)(3) of the Florida Constitution gives the district courts
of appeal jurisdiction to issue writs of certiorari. A circuit court's review of quasi-
judicial actions by local governments is by way of a petition for certiorari, such as
the petition O'Hare filed in the circuit court below. See Miami -Dade County v.
Omnipotent Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Fla. R. App.
9.100(c)(2).
2
The circuit court's decision to grant or deny certiorari is reviewable in this
Court by way of a petition for certiorari, which is often called "second-tier
certiorari review." Id. On second-tier certiorari review, this Court reviews
whether the circuit court (1) afforded procedural due process and (2) applied the
correct law. Id. Jurisdiction is appropriate in this case because, as shown below,
the circuit court failed to apply the correct law which resulted in a miscarriage of
justice. See Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 884, 889 (Fla. 2003)
(discussed infra).
This Amended Petition for Writ of Certiorari is timely filed. O'Hare filed
his original Petition within thirty (30) days of the circuit court's per curiam denial
of O'Hare's Amended Petition for Writ of Certiorari, which was rendered below
on January 28, 2013. See Fla. R. App. P. 9.100(c)(2) (applying the appellate rules
to certiorari review of quasi-judicial actions by local governments and requiring
petition to be filed within thirty (30) days of rendition of order to be reviewed). At
the time O'Hare filed the original Petition in this Court, he sought leave to file this
Amended Petition for Writ of Certiorari. On March 18, 2013, this Court issued an
Order granting O'Hare leave to file an Amended Petition and Amended Appendix
on or before April 2, 2013. O'Hare complied with that Order and, therefore, this
Amended Petition is timely filed.
3
STATEMENT OF THE CASE AND OF THE FACTS
On August 29, 2011, O'Hare submitted a "ROOF/RE-ROOF PERMIT
APPLICATION" to the Town seeking to replace the roof on a single-family
residence he was refurbishing. (Amended Appendix "A" 1.1) The proposed
roofing material was a concrete tile that was similar to the tile that existed on the
roof at the time O'Hare submitted the permit application form. (Al.) The Town
granted O'Hare's permit application and issued the Permit authorizing the
installation of the concrete tile roof on or about August 29, 2011. (Al.) The
Permit did not contain a specific expiration date, but it required the work to be
commenced within 180 days or the Permit would expire for lack of use. (Al.)
After O'Hare removed the old concrete tile in anticipation of installing the
new concrete tile in accordance with the Permit, O'Hare became concerned that the
building would not safely support the new concrete tile roof. (See A15:19-21.)
Consequently, O'Hare consulted Terrence E. Lunn, a licensed, professional
engineer. (A15:19-21.) Lunn gave O'Hare a verbal opinion that the building
would not support the proposed concrete tile roof. (A15:20-21.)
Consequently, on November 15, 2011, O'Hare's roofing contractor,
RoofTec, Inc. ("Rooffec"), filed a permit revision request, which sought to revise
1 Citations to the Amended Appendix will be in the following format: A1:1. The
first number indicates the tab number of the relevant document in the appendix and
the second number denotes the actual page of that document. If the citation is
generally to the document as a whole, only the tab number will be provided.
rd
the Permit to allow Roofl'ec to install a metal roof on the home (the "Revision
Request"). (A4.) In the Revision Request, Rooft'ec's representative stated:
"customer wants to change to metal roof." (A4; see also A15:20.)
At the hearings on the appeal from the denial of the Revision Request,
O'Hare's counsel denied that O'Hare ever said he simply "wanted" a metal roof
and represented, under oath, that O'Hare wanted any type of roof that was proper
under the building code and that could be supported by the existing building.
(A13:22-23; A15:14-15, 30.) O'Hare's counsel also stated that O'Hare would
have preferred a shingle or a shake roof to a metal one, but that shingle and shake
roofs were absolutely prohibited by the Code. (A13:22-23; see also A8.)
In response to O'Hare's Revision Request, the Town's Planning and
Building Department Administrator and Town Manager, William H. Thrasher
("Administrator Thrasher"), stated that "No metal roofs are permitted in Gulf
Stream, period." (A2:2-3; A13:4; A14; A15:7.) Administrator Thrasher
misrepresented the plain language of the Code and failed to disclose that the Code
actually does permit metal roofs under certain circumstances. (See A7, § 70-
187(2) of the Code.)
Indeed, O'Hare subsequently learned that the Code did, in fact, provide an
exception for metal roofs under certain circumstances. (See A15:7, 22.) Although
Article V, section 70-99(3) and Article VI, section 70-187(2) both generally state
E
that all metal roofs are prohibited, Article VI, section 70-187(2) also includes an
exception which reads, in pertinent part:
Certain metal roofs determined by the town to be appropriate to the
structure and to the neighborhood may be approved only in instances
of re -roofing of existing structures based upon an engineer's
certification that the existing structure will not support a the roof.
Additionally, unpainted copper may be used either as a decorative
accent or on minor accessory structures.
(A7:2; see also A8 (generally prohibiting metal roofs).)
Given the two requirements of Article VI, section 70-187(2) of the Code,
O'Hare asked Lunn to put his verbal opinion that the building would not support a
concrete tile roof into writing. (See A5; A15:20-21.) Thereafter, Lunn issued a
certification dated December 14, 2011, which stated:
(A5.)
The existing roof framing will not support the design loads of a
concrete or clay tile roof. The lightest roofing system possible is
needed.
I certify to the best of my knowledge, belief and professional
judgment that the referenced roof framing will not support a tile roof.
O'Hare submitted Lunn's report to Administrator Thrasher in support of his
Revision Request and asked Administrator Thrasher to advise him as to the type of
metal roof that would be appropriate to the structure and the neighborhood. (See
A2; A6:3.) Despite Lunn's certification as required by Article VI, section 70-
187(2) of the Code, on March 6, 2012, Administrator Thrasher denied O'Hare's
R
Revision Request and stated that O'Hare could not install a metal roof on the
premises unless and until he applied for and obtained a variance. (A2; A6.)
Administrator Thrasher stated:
The Town does not have a "list of metal roof materials" which you
requested as such roof materials are prohibited by two section [sic] of
the code; section 70-187(2) and 70-99(3), with section 70-99(3) being
the most restrictive of the two. "Prohibited. Metal roofs (except
unpainted copper when used as a decorative accent or a minor
accessory structure)". [sic]
Therefore, a variance application would be required to allow the use
of metal roofmaterials. ... In the event a variance application is filed,
permission to enter the structure will be necessary so that technical
experts can properly evaluate the applicable structural components.
(A6:3 (emphasis added).)
Because O'Hare disagreed that a variance was required under the Code,
O'Hare appealed Administrator Thrasher's determination that all metal roofs are
prohibited without a variance. (A2; A13; A14; A15.) The BOA held two public
hearings related to O'Hare's appeal of Administrator Thrasher's decision, one on
April 13, 2012, and another on May 11, 2013. (A2; A3; A13; A15.)
At the April 13, 2012, hearing, O'Hare's counsel, Lou Roeder, explained
that a variance was not required because the applicable Code contained an
exception to the prohibition against metal roofs where the homeowner was re-
roofing an existing building and had produced an engineer's certification that the
building would not support a tile roof. (A13:4-13.) Roeder argued that
7
Administrator Thrasher's conclusion that a variance was required before a metal
roof could be permitted was an erroneous interpretation of the plain language of
the Code. (M) He further argued that although Article V, section 70-99(3) and
Article VI, section 70-187(2) appear to conflict on the question of metal roofs,
Article VI, section 70-186(b) expressly states that in the event of a conflict
between Articles V and VI, the provisions of Article VI prevail. (A7:1.)
Consequently, Roeder argued that the Code did not require O'Hare to seek a
variance and that because O'Hare met the terms of the exception, the Town should,
in accordance with Article VI, section 70-187(2), advise O'Hare as to the type of
metal roof that would be appropriate to the structure and the neighborhood.
(A13:4-13.)
Administrator Thrasher responded that he believed that items that were
prohibited by the Code required a variance. (A13:15-16.) In addition,
Administrator Thrasher admitted that there was a conflict in the Code between 70-
99(3) and 70-187(2). (A13:16.) Indeed, Administrator Thrasher stated that he did
not disagree with O'Hare's interpretation of the Code, but he did not think that the
mechanism for the exception provided in 70-187(2) should be driven by the
homeowner. (A13:17.) Administrator Thrasher contended, without any authority
from the Code or elsewhere, that a single engineer's certification should not be
sufficient to trigger the exception. (A13:17.) Administrator Thrasher further
91
contended that the Town should have some voice in the process. (A13:18.) He
argued that this was particularly true in this case where the home had been built
with a concrete tile roof in 1972 and then re -roofed with similar materials in 1999.
(A13:18.) Administrator Thrasher admitted, however, that he did not know what
had transpired between 1999 and 2012 to result in Lunn's certification that the
structure would not support a concrete tile roof. (A13:18.)
O'Hare's counsel, Roeder, responded that the Code did not provide for such
a review by the BOA or the Town. (A13:10, 22, 24, 25, 32-32.) Nevertheless, the
BOA inquired as to whether, in an effort to resolve the matter, O'Hare would agree
to allow one of the Town's engineers to inspect the property and to confine or
deny Lunn's certification regarding the building's ability to support concrete tile.
(A13:23-25.) Roeder responded that he did not believe the Town was entitled to
question Lunn's certification or that, given the plain language of the Code, O'Hare
would allow such an inspection without further justification. (A13:24.) Roeder
also stated that the only question before the BOA was whether Administrator
Thrasher was correct that O'Hare could not install a metal roof without first
applying for and obtaining a variance. (A13:4, 21, 25.)
Commissioner Devitt represented that the Town enacted the exception in
Article VI, section 70-187(2) because, at the time the Town was adopting its new
Code, there were pre-existing shingle and shake roofs and the new Code was going
W
to absolutely prohibit those roofing materials. (Al 3:28-29.) As a result, the Town
needed to provide those homeowners with an alternative material to be used in any
re -roofing project if it were determined that the roof framing on those homes
would not support concrete tile. (A13:28-29.) Commissioner Devitt stated that
given that history, the Town should be allowed to question Lunn's certification
because the building had supported a concrete tile roof for nearly forty years.
(A13:29.)
An architect who was present at the hearing as a member of the public
advised the BOA that there had been changes in the safety values of wood over
time. (A13:30.) The architect represented that a more conservative engineer might
give the wood a lower safety value than a less conservative one, which could create
differences of opinion among engineers. (A13:30.) Roeder responded that
Florida's recent experience with hurricanes have changed the codes as well.
(A13:31.)
After Roeder's response, several Commissioners asked Roeder if O'Hare
would allow the Town to inspect the building and to verify Lunn's certification.
(A13:31.) Roeder answered that O'Hare had not previously been willing to do so.
(A13:31.) Roeder indicated that O'Hare wanted a decision on whether a variance
was required first and, only then, could the Town consider whether it could seek
verification of Lunn's certification. (A13:32.)
10
In response, the Town's counsel, Randolph, stated that two questions were
presented to the BOA for review: 1) whether a variance is required at the outset;
and 2) if not, whether the Town is permitted to test the accuracy of the engineer's
certification provided by the homeowner as part of the exception process.
(Al 3:27.) After further discussion, Randolph advised the BOA that a variance was
not required, but stated that he believed, without any supporting authority from the
Code or elsewhere, that the BOA could require verification of the homeowner's
certification. (A13:32-33.) Randolph did not assert that Article VI, section 70-
187(2), as drafted, was intended to or did permit the Town to verify the engineer's
certification provided by the homeowner. (A13:32-33.)
Despite Randolph's advice that a variance was not required, the BOA voted
to defer action on O'Hare's variance -related appeal until the next meeting
scheduled for May 11, 2012. (A2; A13:36-38.) The BOA stated that the deferral
would allow time for the Town to hire an engineer to inspect the roof and to agree
or disagree with Lunn's certification. (Id.) The BOA stated that if the Town's
engineer agreed with Lunn, it would be a "done deal." (A13:35.) The BOA also
stated, however, that if the Town's engineer disagreed with Lunn, then the Town's
engineer and Lunn could jointly select a third engineer to break the tie. (A2;
A13:36-38.) The BOA also stated that if O'Hare would not allow the Town's
11
engineer to inspect the premises, it would decide the appeal at the next meeting in
May. (Id.)
At the next public meeting on May 11, 2012, Randolph reported that O'Hare
would not agree to allow the Town's engineer to verify Lunn's certification. (A3;
A15:3-4.) Roeder stated that O'Hare would not permit the Town's engineer to
inspect the property unless certain questions were answered first, including but not
limited to: 1) who would pay the engineers' fees;Z 2) who would be liable if the
Town's engineer and the third engineer disagreed with Lunn, the Town forced
O'Hare to install a concrete tile roof, and the concrete roof subsequently failed;
and 3) whether the Town had any precedent to support its attempt to impose
additional conditions on O'Hare for the approval of a metal roof that are not
expressly included in the Code. (A3; Al 5:4-7.)
Roeder argued that the Town kept moving the goal posts. (A 15:7.) When
O'Hare first asked about a metal roof, he was told "no metal roofs, period." (Id.)
Then, when O'Hare found out about the exception and complied with it, the Town
responded that O'Hare had to obtain a variance. (A15:7.) Next, at the April
hearing, the Town admits that O'Hare's interpretation of the Code may be correct,
'- Roeder appears to be referring to the fees of the Town's engineer as well as any
third engineer selected by Lunn and the Town's engineer in the event of any
disagreement between the first two engineers. At the conclusion of that May 11,
2012, hearing, one Commissioner indicated that the Town would pay for its own
engineer, but he did not address how any third engineer might be paid. (See
A15:32.)
12
but indicates that metal roofs are not desirable. (A15:7-8.) At the conclusion of
the April hearing, the BOA decides to defer a ruling on O'Hare's simple appeal of
Administrator Thrasher's ruling that a variance is required until O'Hare agrees to
allow the Town's engineer to verify Lunn's certification. (A15:8.) Roeder further
argued that O'Hare has been proceeding by the book, but the Town is seeking to
hold him to a higher standard than that required by the Code. (A15:8-9.) Roeder
asserted that the plain language of the Code simply did not provide the Town with
the right to challenge the engineer's certification provided by the homeowner.
(A3; A15:7 -I1, 13, 16, 23-24, 27.) He pointed out, yet again, that the only ruling
O'Hare appealed was Administrator Thrasher's conclusion that a variance was
required before a metal roof could be approved for O'Hare's property. (A15:11.)
Randolph responded that at the April meeting, the ruling was that O'Hare
was entitled to receive a variance subject to verification of Lunn's certification, but
that because O'Hare would not agree to that procedure, he advised the BOA that
they must now decide whether a variance is, indeed, required. (A15:12.)
Roeder responded that the Town was imposing a requirement on the metal -
roof exception contained in Article VI, section 70-187(2) that is not required by the
Code, and that the BOA should keep the two issues separate. (A15:13.) He also
complained that the Town was casting doubt on Lunn's certification for no known
reason. (A15:13.) Roeder stated that it is logical that when a building is thirty-five
13
years old, like the one at issue here, there will be material fatigue over time.
(A15:13.) Moreover, the applicable codes have become more stringent over time
on issues like wind and weight loads. (Id.)
Roeder also reminded the BOA that the motion at the April meeting was not
to approve the requested exception or to say that a variance was not required, but
to defer ruling on O'Hare's appeal in its entirety until the Town could verify
Lunn's certification, which is a condition not imposed by the Code. (A15:14.)
Roeder argued that the Town was seeking to conflate the two issues. (Id.)
In response to Roeder's arguments, Vice Mayor Orthwein stated that the
Town wanted to verify Lunn's report because the Town simply could not accept
the certification in light of the fact that the house had had a concrete tile roof for
thirty-five years. (A15:15.)
Roeder responded that to impose a requirement of verification was a
monumental shift given the Code's plain language. (A15:16.) Roeder argued that
the Code plainly states that once the homeowner establishes the elements for the
exception, i.e., re -roofing and engineer's certification, the Town must tell the
homeowner what style and type of metal roof it may install. (A15:16.)
Administrator Thrasher pointed out that the Revision Request completed by
O'Hare's contractor stated merely that O'Hare wanted to change to a metal roof; it
14
did not reference any structural problem with the approved concrete tile roof.
(A15:18.)
The Town Clerk then testified that she spoke to "Diana" at Roofrec who
stated that O'Hare just wanted a metal roof and that Diana did not know why the
tile roof had not been laid because the permitted underlay for the tile was already
in place. (A15:19.) O'Hare's counsel responded that "Diana" was not the
contractor; she was merely a contact person, and anything she had to say was
irrelevant. (A15:20.)
Thereafter, Mayor Koch advised Roeder that if O'Hare would not allow the
Town to verify Lunn's certification, the BOA could not proceed with O'Hare's
Revision Request. (A15:23.) Once again, Commissioner Devitt contended that
Article VI, section 70-187(2) was put into the Code to take into account pre-
existing shake or shingle roofs, which are now absolutely prohibited by the Code.
(A15:23; A8.) Roeder responded that the Code says no such thing and that if the
Town had wanted to limit metal roofs only to those re -roofing projects that where
replacing shingle or shake, the Code could have said that, but it did not. (A15:24.)
He reiterated that roofs deteriorate over time and cannot withstand the same loads.
(A15:25.) He also restated O'Hare's position that a variance was not required,
O'Hare had met the only stated conditions for the exception, and that nothing in
15
the Code allowed the Town to reject Lunn's certification in the absence of
verification. (A15:26-27.)
Indeed, Randolph, the Town's counsel, expressly agreed that a variance was
not required for a metal roof under Article VI, section 70-187(2) of the Code.
(A15:27.) Randolph stated, however, the question now is whether the Town could
require a variance in the absence of verification of Lunn's certification. (A15:27.)
Randolph had previously asserted that he believed it was reasonable for the Town
to be able to verify the engineer's report provided by the homeowner. (A15:12.)
Randolph did not assert, however, that the Code currently provided the Town with
that right. (A15.)
Roeder responded that verification is not required or permitted by the plain
language of the Code. (A15:28.) Roeder added that the language of Lunn's
certification was proper and the standard language used by engineers making
similar certifications. (A15:28-29.) Consequently, Roeder asked if the problem
was simply that the Town did not like metal roofs. (A15:28-29.)
Randolph responded that it is not accurate to say that the Town does not like
metal roofs because the exception expressly allows metal roofs. (A15:29.)
Randolph stated, however, that because the home had had a concrete roof for many
years and O'Hare's Revision Request merely stated that he wanted to change to a
metal roof, the Town had reason to want to verify Lunn's certification. (A15:29.)
16
Roeder denied that O'Hare ever said he "wanted" a metal roof. (A15:30.)
That was a representation that was made by the contractor's representative, not by
O'Hare himself. (A15:30.) O'Hare wants any roof that is appropriate and will be
supported by the existing roof framing. (A15:15, 30.) Indeed, Roeder stated that
his client would love to have a concrete tile roof, if the building could support it.
(A15:15; see also A13:22-23 (stating that if O'Hare could not have concrete tile,
he would prefer shingle or shake, but those types of roofs are strictly prohibited).)
After further discussion about why the BOA believed verification of Lunn's
certification should be permitted, the BOA voted to affirm Administrator
Thrasher's decision that O'Hare must obtain a variance before he would be
permitted to install a metal roof. (A3; A15:32-34.) The BOA based its decision on
its conclusion that because the Town had not been permitted to verify Lunn's
certification, O'Hare did not comply with the exception contained in Article VI,
section 70-187(2), and therefore, a metal roof was prohibited without a variance.
(Id.) The BOA did not assert, however, that the original intent of Article VI,
section 70-187(2) was that the Town was entitled to question and verify the
engineer's certification provided by the homeowner. (A15.)
The Town issued its Notice of Final Action on O'Hare's appeal on May 30,
2012. (A9.) The Notice of Final Action sustained Administrator Thrasher's
conclusions and required that O'Hare obtain a variance before proceeding with the
17
installation of a metal roof. (A9.) The Notice of Final Action stated, in pertinent
The Town Commission, sitting as the Board of Adjustment, sustained
the opinion of the Building Official that a variance is required in that
the applicant has not satisfied that portion of the Code which provides
an exception to allow a metal roof because you have not allowed the
Town to verb the engineering report you submitted, with regard to
the strength of the structure.
(A9 (emphasis added).)
Although the BOA stated that it was affirming Administrator Thrasher's
conclusions, the BOA and Administrator Thrasher actually cited different reasons
for why a variance was required. (Compare A9 with A6.) The BOA concluded
that a variance was required because O'Hare would not allow the Town to verify
Lunn's certification; whereas, Administrator Thrasher had concluded that there
was no exception allowing for metal roofs and that the only way a metal roof could
be approved was for the homeowner to obtain a variance. (Id.) The BOA's Notice
of Final Action failed to acknowledge that O'Hare's appeal was limited to the
question of whether a variance was required, not whether the Town could require
verification as part of the process of qualifying for the exception expressly
provided by Article VI, section 70-187(2).
On June 18, 2012, O'Hare filed an amended petition for writ of certiorari to
the Circuit Court, Fifteenth Judicial Circuit, in and for Palm Beach County,
Florida. (A10.) After the Town responded (Al 1), the circuit court issued a per
IV
curiam order denying O'Hare's amended petition without opinion (the "Order").
(Al2.) The court filed the Order on January 28, 2013. (Al2.)
Between the time O'Hare filed the amended petition for certiorari in the
circuit and the rendition of the Order, the Town amended Article VI, section 70-
187(2) of the Code. The proposed amendment read, in pertinent part, as follows:
' Certain metal roofs determined by the town to be appropriate to the
structure and to the neighborhood may be approved only in instances
of re -roofing of existing structures based upen subiect to receipt by
the town of an engineer's certification that the existing structure will
not support a tile roof, said certification to append the engineer's
study(ies) and report(s) supporting said certification and subiect
further to an engineer appointed by the town confirming said
engineer's certification. Additionally, unpainted copper may be used
either as a decorative accent or on minor accessory structures.
(A17:8 (emphases and striking original); see also A16 (Ordinance 12/4 as
enacted).)
NATURE OF THE RELIEF SOUGHT
O'Hare files this Amended Petition for a Writ of Certiorari seeking second-
tier review of the circuit court's Order denying the amended petition for a writ of
certiorari filed below. O'Hare requests that this Court quash the Order below,
remand with instructions for the circuit court to quash the BOA's decision and to
require the Town to advise O'Hare of the nature and type of metal roof he is
permitted to install on his residence without the need for a variance.
19
ARGUMENT
The Amended Petition in this case should be granted and the Order quashed
because the Order violates clearly established principals of law and results in a
miscarriage of justice. Kaklamanos, 843 So. 2d at 889. O'Hare complied with the
plain language of the Code by: 1) establishing that he was re -roofing his residence;
and 2) providing a proper certification from a licensed, professional engineer that
the existing structure would not support a concrete tile roof. The Code does not
authorize the Town to require the homeowner to allow the Town's engineer to
inspect the property and, if the Town's engineer disagrees with the provided
certification, to hire and pay for a third engineer to break the tie. Likewise, the
Code does not require the homeowner to obtain a variance in the event the
homeowner refuses to comply with conditions imposed by the Town that are not
contained within the plain language of the Code. Therefore, by failing to quash the
BOA's affirmance of Administrator Thrasher's variance requirement on certiorari
review, the circuit court departed from the essential requirements of law by failing
to follow clearly established law, which resulted in a miscarriage of justice.
Consequently, the Order should be quashed and the case remanded with
instructions for the circuit court to quash the BOA'S decision requiring O'Hare to
obtain a variance.
20
Standard of Review
On second-tier certiorari review, this Court must determine whether the
circuit court (1) afforded procedural due process; and (2) applied the correct law.
Miami -Dade County, 863 So. 2d at 199. This two-pronged, second-tier standard of
review is simply another way of asking whether the circuit court "departed from
the essential requirements of law." Id. (citations omitted). Therefore, the ultimate
consideration is whether there has been "a violation of a clearly established
principal of law resulting in a miscarriage of justice." Kaklamanos, 843 So. 2d at
"Clearly established law" is not limited to case law. It "can derive from a
variety of legal sources, including recent controlling case law, rules of court,
statutes, and constitutional law." Id. at 890. Thus, a circuit court's failure to apply
controlling legal precedent provides a basis for granting certiorari review. United
Auto. Ins. Co. v. County Line Chiropractic Center, 8 So. 3d 1258, 1259-60 (Fla.
4th DCA 2009); Stranahan House, Inc. v. City of Ft. Lauderdale, 927 So. 2d 1068,
1069 (Fla. 4th DCA 2006); Concerned Citizens of Bayshore Community, Inc. v.
Lee County, 923 So. 2d 521, 523 (Fla. 2d DCA 2005); Maple Manor, Inc. v. City of
Sarasota, 813 So. 2d 204 (Fla. 2d DCA 2002).s
3 For a thorough discussion of the concept of applying the "correct law" in the
context of second-tier certiorari review, the Court may wish to review Walbolt,
21
"The standard of appellate review on issues involving the interpretation of
statutes is de novo." B.Y, v. Dept of Children & Families, 887 So. 2d 1253, 1255
(Fla. 2004); see also Home Const. Management, LLC v. Comet, Inc., So. 3d
_, 38 Fla. L. Weekly D294, *1 (Fla. 4th DCA Feb. 6, 2013) (citing Tasker v.
State, 48 So. 3d 798, 804 (Fla. 2010)). Generally, however, a reviewing court
should defer to the interpretation given a statute or ordinance by the agency
responsible for its administration. Las Olas Tower Co. v. City of Ft. Lauderdale,
742 So. 2d 308, 312 (Fla. 4th DCA 1999) (citations omitted). That deference is not
absolute, however. Id. (citation omitted). Indeed, when the agency's construction
of a statute amounts to an unreasonable interpretation or is clearly erroneous, it
cannot stand. Id. (citation omitted); see also GO Comm. ex rel. Hale v. City of
Minot, 701 N.W.2d 865, 871 (N.D. 2005) ("`We will ordinarily defer to a
reasonable interpretation of a statute by the agency enforcing it, but an
interpretation which contradicts clear and unambiguous statutory language is not
reasonable."' (quoting Lee v. N.D. Workers Comp. Bureau, 587 N.W.2d 423, 425
(N.D. 1998))).
Here, the plain language of the applicable Code provision provides that a
homeowner, like O'Hare, is entitled an exception to the prohibition against metal
roofs, if the structure is being re -roofed and an engineer has certified that the
Sylvia H. and Sevi, Leah A., The "Essential Requirements of Law " — When Are
They Violated?, 85 MAR Fla. B.J. 21 (March 2011).
22
existing structure will not support a tile roof. (AT) Nowhere in Article VI, section
70-187(2), or in any other section of the Code, is the homeowner required to allow
the Town's engineer to inspect the premises to verify the engineer's certification
provided by the homeowner. Rather, the plain language of the Code clearly states
that once the re -roofing homeowner has produced the engineer's certification, the
Town must advise the homeowner as to the type of metal roof that may be installed
as is appropriate to the building design and the neighborhood. (AT) No other
interpretation is reasonable given the plain language of the Code.
Indeed, this interpretation of Article VI, section 70-187(2) is the only
reasonable interpretation under a proper reading of the Code as a whole. It is
undisputed that shingle and shake roofs are absolutely prohibited in the Town.
(See A7; A8; A13:14-15, 22-23, 28-29; A15:23-24.) Consequently, if a structure
cannot support concrete tile, the only suitable — and lighter — roofing material
allowed by the Code is metal. (See A7; A8.) Therefore, the Town enacted Article
VI, section 70-187(2) to provide homeowners whose structures could not support
cement tile roofs with some kind of alternative roofing material. (See A13:14-15,
22-23, 28-29; A15:23-24.) In doing so, the Town used clear and unambiguous
language that once a homeowner establishes through a licensed engineer's
certification that the structure will not support concrete tile, the Town must advise
the homeowner as to the style and type of metal roof that is appropriate to the
23
structure and the neighborhood. (A7.) The plain language of Article VI, section
70-187(2) did not contemplate or provide that the Town would want or need to
verify the engineer's certification submitted by the homeowner. (A7.) Therefore,
Article VI, section 70-187(2) clearly and unambiguously did not require the
homeowner to permit an inspection of his premises by the Town's engineer as a
condition of satisfying the exception.
Even the Town seems to have recognized this to be the case. After the BOA
denied O'Hare's appeal of Administrator Thrasher's decision requiring a variance,
the Town amended Article VI, section 70-187(2) of the Code (the "Metal -Roof
Amendment").a See Keck v. Eminisor, 104 So. 3d 359, 369 (Fla. 2012) (stating
that courts may consider a subsequent amendment to a statute to assist it in
interpreting the original legislation) (citing Prison Rehab. Indus. v. Betterson, 648
So. 2d 778, 779 (Fla. 1st DCA 1994) (quoting Dade County v. AT & T Info. Sys.,
485 So. 2d 1302, 1304 (Fla. 3d DCA 1986))); see also State Dept. of Highway
Safety & Motor Vehicles v. Scott, 583 So. 2d 785, 787 (Fla. 2d DCA 1991)
(granting a petition for a writ of certiorari and stating that its interpretation of the
relevant statute was consistent with the principle that courts have the right and the
duty, in arriving at the correct meaning of a prior statute, to consider subsequent
4 The original version of Article Vl, section 70-187(2), which was in effect at the
time of O'Hare's appeal, will continue to be referred to as Article VI, section 70-
187(2).
24
legislation) (citations omitted). In the Metal -Roof Amendment, the Town, for the
first time, made the Town's right to verify the homeowner's engineer's
certification a condition precedent to the metal -roof exception. (A17.) The Metal -
Roof Amendment now requires the homeowner to: (1) produce not only the
engineer's certification, but also the engineer's studies and reports; and (2) allow
the Town's engineer to inspect to premises to determine whether the Town's
engineer agrees that the structure cannot withstand a cement tile roof.5 (A16.)
Given the new conditions contained in the Metal -Roof Amendment, it is
clear that the Town changed the pre-existing Code; it did not merely clarify it. The
Metal -Roof Amendment imposes new and different requirements on the pre-
existing exception contained in the Code. These conditions did not exist in the
clear and unambiguous language of Article VI, section 70-187(2) prior to the
Metal -Roof Amendment. These are entirely new requirements that did not exist
before O'Hare made his Revision Request or appealed Administrator Thrasher's
conclusion that O'Hare could not install a metal roof without a variance because
metal roofs were absolutely prohibited. Indeed, neither the members of the BOA,
Administrator Thrasher, nor attorney Randolph, asserted (or even suggested) that
5 The Metal -Roof Amendment is silent on the question of how a conflict between
the Town's engineer and the homeowner's engineer will be resolved and whether
the Town will assume liability for or insure against damage to the structure if the
Town's engineer is wrong in concluding that the structure will support a concrete
tile roof. (See A15:4-7 (raising questions regarding cost and liability that, when
asked, were not answered by the Town).)
25
the plain language of Article VI, section 70-187(2) already provided or was
intended to provide the right of verification. (A13; A15.) Rather, they simply
asserted that it would be reasonable for them to verify Lunn's certification under
the facts. (See, e.g., A13:17, 2426, 29, 32-33; A15:12, 15, 18, 23, 25, 32.) Thus,
given the plain language of Article VI, section 70-187(2), the BOA should have
reversed Administrator Thrasher's erroneous conclusion that a variance was
required and concluded that O'Hare was permitted to install a type of metal roof
the Town determined to be appropriate to the structure and the neighborhood.
(AT) Therefore, a writ of certiorari should issue to quash the Order in this case.
Contrary to the Town's assertion below, Article V, section 70-99(3) of the
Code does not dictate a different result. Article V, section 70-99(3) is the general
metal -roof prohibition that applies to the Town as a whole. (A8.) Article V,
section 70-99(3) clearly states that metal roofs are generally prohibited. (A8.) But
Article V, section 70-99(3) is superseded by Article VI, section 70-187(2), which
applies in the specific district in which O'Hare's residence is located. (See A7.)
Article VI, section 70-186(b) specifically provides that "where the provisions of
this article [Article VI] conflict with those in article V, the provisions of this article
shall prevail." (AT) Moreover, Randolph, the Town's own counsel, expressly
stated that metal roofs are not generally prohibited because the exception under
section 70-187(2) expressly allows them under certain circumstances. (A15:29)
9.1
Therefore, the general prohibition against metal roofs contained in Article V,
section 70-99(3) is not applicable where, as here, the building needs to be re -roofed
and an engineer has certified that the existing structure will not support a concrete
tile roof otherwise preferred by the Code. (Compare A8 (§ 70-99(3)) with A7 (§
70-187(2).)
Even if the Code did not expressly provide that the Article VI provision
prevails over conflicting sections of Article V, the result would be the same under
established Florida law. It is axiomatic that where a general provision of a statute
conflicts with a more specific provision in the statute, the specific provision
governs the general one. See, e.g., Mendenhall v. State, 48 So. 3d 740, 748 (Fla.
2010) (concluding that a specific sentencing statute prevailed over the more
general one); Psychiatric Institute of Delray, Inc. v. Keel, 717 So. 2d 1042, 1043
(Fla. 4th DCA 1998) (concluding that specific provision of statute governed over
general provision in same statute); Gallagher v. Smith, 517 So. 2d 744, 746 (Fla.
4th DCA 1987) (general venue statute governed by specific venue statute). By
giving effect to the general provision prohibiting metal roofs rather than the
provision allowing metal roofs under the conditions set forth in Article VI, section
70-187(2) of the Code, the circuit court violated clearly established law of statutory
construction and failed to give effect to the plain language of the Code. Therefore,
the Order should be quashed.
27
This is particularly true where, as here, the circuit court (and the BOA before
it) interpreted Article VI, section 70-187 of the Code to permit the Town to require
the homeowner to permit the Town's engineer to inspect the premises and to agree
or disagree with the engineer's certification provided by the homeowner. This
interpretation imposes an additional condition on the metal -roof exception that was
not provided by the Code itself. Thus, this interpretation of the Code violates the
long-standing principal that in interpreting a statute, a court is not permitted to add
words that were not put there by the legislative body. Agee v. Brown, 73 So. 3d
882, 885 (Fla. 4th DCA 2011) ("It is a well-established tenet of statutory
construction that courts are not at liberty to add words to the statute that were not
placed there by the Legislature.") (quoting Lawnwood Med. Ctr., Inc. v. Seeger,
990 So. 2d 503, 512 (Fla. 2008) (citation and internal quotation marks omitted)
(other citations omitted)); see also Boulis v. Blackburn, 16 So. 3d 186, 189 (Fla.
4th DCA 2009) (rejecting an appellant's interpretation of a statute because that
interpretation "adds an exclusion to this statute that the statute does not provide.").
Indeed, the plain language of the Code does not grant the Town the right to
verify the certification of a licensed engineer submitted by the homeowner who
wishes to re -roof his residence with a metal roof because the existing structure will
not support a tile one. Given that this is a design element of the Code that also
implicates the structural integrity of the building, it is only reasonable for the Town
to accept the engineer's certification provided by the homeowner — that is unless
the Town will accept liability or otherwise insure the property in the event the
Town's engineer requires a concrete tile roof that later fails and thereby injures
someone or otherwise damages the homeowner's property.6
By interpreting the Code to authorize the Town's engineer to inspect the
property so as to agree or disagree with the provided certification as a condition of
allowing a homeowner to re -roof its residence in metal rather than concrete tile
under the exception, the circuit court added a condition to the Code that was not
put there by the Town itself. Had the Town wanted to impose such a pre -condition
to approval of a metal roof in the face of an engineer's certification, it could
certainly have done so — as it has subsequently done with the Metal -Roof
Amendment. (A16; A17.) But, because the Town did not include such a
requirement in the Code, the circuit court was not at liberty to create one out of
whole cloth. Such a result violated clearly established Florida law. See Agee, 73
So. 3d at 885; Boulis, 16 So. 3d at 189.
This case is directly analogous to Woodley v. Dep't of Health and Rehab.
Servs., Dist. 3, Lake County AFDC, 505 So. 2d 676 (Fla. 1st DCA 1987), which
was cited by this Court in Las Olas Tower Co., 742 So. 2d at 312. In Woodley,
6 Indeed, there is some doubt that a homeowner would be able to obtain property
insurance to insure the home in the event the homeowner installs a concrete tile
roof despite the certification by a licensed, professional engineer that the existing
roof framing will not support a concrete tile roof.
Ms. Woodley appealed from a final order of the Office of Public Assistance
Hearings, Department of Health and Rehabilitative Services (the "Department"),
which upheld the denial of her application for Aid to Families with Dependent
Children ("AFDC") benefits. Id. at 677. The First District Court of Appeal
reversed. Id.
After Woodley applied for AFDC benefits, she participated in an initial
interview with a Department representative. Id. During that interview, the
representative asked Woodley to provide verification, by a certain date, that she
had applied for workers' compensation benefits. Id. at 677. Woodley repeatedly
requested this verification from her employer, but her employer did not respond.
Id.
The day after Woodley's production deadline expired, the Department
issued a Notice of Abandonment, which gave Woodley an additional fifteen days
to provide the requested information. Id. at 677. On that same date, Woodley
advised the Department's representative that she had been unable to obtain the
necessary verification from her employer. Id. The representative advised her to
try again. Id. Woodley diligently reported back to the representative on various
dates advising the Department that she was still trying to get verification. Id. The
Department's representative advised her to request an extension of time if she
could not obtain the verification by the latest deadline. Id. When Woodley did not
30
provide the requested information or request an extension by that deadline, the
Department denied her application for AFDC benefits. Id. at 677. Consequently,
Woodley requested an administrative hearing. Id.
At the hearing, Woodley contended that the Department's representative
should have — and in fact was required to — submit a policy -exception request
seeking an extension of the Department's time standard for acting on AFDC
applications. Id. The hearing officer rejected Woodley's contention and
concluded that the Department properly denied the application because a workers'
compensation verification was necessary under the Florida Administrative Code
and because Woodley failed to request an extension of time. Id. at 677-78.
Indeed, the Department's representative and her supervisor had testified that a
policy exception is only submitted if the applicant first requests an extension of
time. Id. at 678.
On appeal, the First District noted that an agency's interpretation of its own
rule is generally entitled to great weight, but that deference to the agency's
interpretation is not required where the agency's construction clearly contradicts
the unambiguous language of the rule. Id. at 678 (citing Kearse v. Dep't of Health
and Rehab. Servs., 474 So. 2d 819 (Fla. 1st DCA 1985)). In that case, the
construction is clearly erroneous and cannot stand. Id.
31
After a review of the plain language of the rule, the court concluded that the
rule unequivocally required the Department to request a policy exception under the
circumstances presented by Woodley's case. Id. Therefore, the court concluded
that the Department's interpretation of the rule — that a policy exception need only
be requested after an applicant requests an extension of time — did not comport
with the plain language of the rule. Id. Rather, the plain language of the rule
simply did not require Woodley to request an extension before the Department was
obligated to seek a policy exception on her behalf. As a result, the court reversed
the denial of AFDC benefits and remanded for further proceedings. Id.
Under the reasoning set forth in Woodley, this Court should conclude that
the Town's interpretation of the Code as adopted by the circuit court does not
comport with the plain language of Article VI, section 70-187(2). Under the plain
language of Article VI, section 70-187(2), once the homeowner establishes that he
or she is re -roofing the building and produces an engineer's certification that the
roof framing will not support cement tile, the Town is required to advise the
homeowner as to the type of metal roof that will be allowed as is appropriate in
that neighborhood. (A7.) Indeed, no other suitable and light roofing material is
allowed under the Code. (A7; A8.) Clearly, a homeowner is entitled to a roof of
some kind that will not negatively impact the structural integrity of the building.
Consequently, Commissioner Devitt's claim that Article VI, section 70-187(2) was
32
intended to apply only to homes with pre-existing shingle or shake roofs is of no
consequence. The exception expressly, by its plain language, applies to any home
that is being re -roofed and that is certified by a professional engineer to be
incapable of supporting a concrete tile roof.
Therefore, just as Woodley was not required to request an extension before
the Department was obligated to request a policy exception, the Town was not
authorized to condition exception under Article VI, section 70-187(2) upon the
Town's engineer's agreement with Lunn's certification or the agreement of a third
engineer selected by Lunn and the Town's engineer. Rather, once O'Hare
established that he was re -roofing his residence and produced Lunn's certification
as required by Article VI, section 70-187(2) of the Code, the Town was required to
permit O'Hare to install a metal roof suitable to the home and neighborhood. (A7.)
Consequently, just as in Woodley, because the Town imposed a condition not
required by the plain language of the Code, this Court should quash the Order
under review.
33
CONCLUSION
Because the Order violates several clearly established principals of Florida
law and results in a miscarriage of justice in that O'Hare may be required to install
a roof on his property that the existing roof framing cannot support, the Order
should be quashed and the case remanded with instructions for the circuit court to
quash the BOA's decision affirming Administrator Thrasher's denial of O'Hare's
Revision Request and to require the Town to advise O'Hare as to the type of metal
roof that would be appropriate for the building and the neighborhood.
Z11
JOHN E. CARTER
TRACY S. CARLIN
Florida Bar No. 460036
Florida Bar No. 797390
CARTER LAW FIRM, LLC
TYLER K. PITCHFORD
102 NE 2"d Street, Suite 179
Florida Bar No. 54679
Boca Raton, Florida 33432
BRANNOCK & HUMPHRIES
Tel: (561) 368-9900
100 South Ashley Drive, Suite 1130
Fax: (561) 368-8499
Tampa, Florida 33602
Tel: (813) 223-4300
LOUIS L. ROEDER, III
Fax: (813) 262-0604
Florida Bar No. 0004316
7414 Sparkling Lake Road
Orlando, Florida 32819
Attorneys for Petitioner
Tel: (407) 352-4194
Fax: (407) 352-8565
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
sent by email to John C. Randolph (jrandolph(a)jonesfoster.com) and Stephanie
Eassa Rapp (srapp(ajonesfoster.com) Jones, Foster, Johnston & Stubbs, P.A., 505
South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 33402-
3475 on this �01 day of April 2013.
T CY S. CARLIN
Florida Bar No. 797390
CERTIFICATE OF FONT COMPLIANCE
I certify that the size and style of type used in this petition is 14 -point Times
New Roman, in compliance with Fla. R. App. 9.100(1).
TRACY S. CARLIN
Florida Bar No. 797390
35
IN THE DISTRICT COURT OF APPEAL
FOURTH DISTRICT OF FLORIDA
CHRISTOPHER F. O'HARE,
Petitioner,
VS.
TOWN OF GULF STREAM,
Respondent.
Case No.: 41313-621
L.T. No.: 2012 -CA -01107
ON APPEAL FROM THE CIRCUIT COURT OF FIFTEENTH JUDICIAL
CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
PETITIONER'S AMENDED APPENDIX
JOHN E. CARTER
Florida Bar No. 460036
CARTER LAW FIRM, LLC
102 NE 2"d Street, Suite 179
Boca Raton, Florida 33432
Tel: (561) 368-9900
Fax: (561) 368-8499
LOUIS L. ROEDER, III
Florida Bar No. 0004316
7414 Sparkling Lake Road
Orlando, Florida 32819
Tel: (407) 352-4194
Fax: (407) 352-8565
1
TRACY S. CARLIN
Florida Bar No. 797390
TYLER K. PITCHFORD
Florida Bar No. 54679
BRANNOCK & HUMPHRIES
100 South Ashley Drive, Suite 1130
Tampa, Florida 33602
Tel: (813) 223-4300
Fax: (813) 262-0604
Attorneys for Petitioner
PETITIONER'S AMENDED APPENDIX
TAB
DOCUMENT
DATE
1.
Roof/Re-Roof Permit Application
8/29/2011
2.
Minutes of the Regular Meeting and Public Hearing Held
4/13/2012
14.
by Town Commission of the Town of Gulf Stream
4/13/2012
3.
Minutes of the Regular Meeting and Public Hearing Held
5/11/2012
16.
by Town Commission of the Town of Gulf Stream
7/13/2012
4.
City of Delray Beach Revision Request
11/15/2011
5.
Letter from Terrance Lunn to Christopher O'Hare
12/14/2011
6.
Letter from William Thrasher to Roeder
3/6/2012
7.
Gulf Stream Code Article VI., Sections 70-186 & 70-187
8.
Gulf Stream Code Article V, Section 70-99
9.
Letter from Rita Taylor to Christopher O'Hare
5/30/2012
10.
Amended Petition for Writ of Certiorari
6/18/2012
11.
Response to Amended Petition for Certiorari
10/8/2012
12.
Opinion
1/28/2012
13.
Transcript of Board of Adjustment Meeting
4/13/2012
14.
Response to Mr. Thrasher's Required Variance
4/13/2012
15.
Transcript of Board of Adjustment Meeting
5/11/2012
16.
Ordinance No. 12/4 as Executed by the Town
7/13/2012
Commission of the Town of Gulf Stream
17.
Proposed Ordinance No. 12/4
2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
sent by email to John C. Randolph (jrandolph jonesfoster.com) and Stephanie
Eassa Rapp (srappajonesfoster.com) Jones, Foster, Johnston & Stubbs, P.A., 505
South Flagler Drive, Suite 1100, P.O. Box 3475, West Palm Beach, Florida 33402-
3475 on this dl day of April 2013.
JOHN E. CARTER TRACY S. CARLIN
Florida Bar No. 460036
j ohngcarterlawfirm. us
CARTER LAW FIRM, LLC
102 NE 2 n Street, Suite 179
Boca Raton, Florida 33432
Tel: (561) 368-9900
Fax: (561) 368-8499
LOUIS L. ROEDER, III
Florida Bar No. 0004316
lou(a)Iouroeder.com
7414 Sparkling Lake Road
Orlando, Florida 32819
Tel: (407) 3524194
Fax: (407) 352-8565
Florida Bar No. 797390
tcarlin(a bhappeals. com
TYLER K. PITCHFORD
Florida Bar No. 54679
tpitchford abhappeals.com
BRANNOCK & HUMPHRIES
100 South Ashley Drive, Suite 1130
Tampa, Florida 33602
Tel: (813) 2234300
Fax: (813) 262-0604
Secondary Email:
eservice(a bhappeals.com
Attorneys for Petitioner
Tab 1
? 0111111111
CITY DE OELAA4 BEp �p ROOF / RE -ROOF PERMIT APPLICA
AUG Z 9 ZOIi TOWie OF GuL:F STRB.I-,
..W 1" Avenue Delray Beach FL 33444 Approv- or FumitESSE
31Ytr /r3
(561) 243-7200 Fax: (561) 243-7221 Town of Gulf Stream, FL Inivals� Date_
Website: mydelraybeach.com u -1 �)--)_i✓DFUR OFFICEtiter .S': '
PROPERTY CONTROL': 1 - L, - t (L -C �L
BLDG PERI%111'
PLEASE PRINI I - -
JOB SI -IE ADDRESS n D "✓
F OPERTY OWNER NAME t • ii .
HOME PHONE 11
PRO?ERTY ONVNER ADDRESS
ROOF CONT'R (COMPANY) NA1,4E
ROOF Cti`T'R %DDR`SS ICS S
CITY � ( '[t,JN ST_4�-_j
BUS PHONE .;i I •�U j l) �/i �
F.4X �(-.I - � 6�U31) E-MAIL
ZIP
ROOFPERMAT J
PERMIT FEE:
PL•\K CHECK FEE:
MICR =:
....u. ..........................
.? PPROVAI S: IC i
PLAN:Jrl. DATE' 't1 I tJ
S
P Z. DATE:
NOTE: PERMIT EXPIRES IF WORK IS NOT STARTED 1MTHIN 180 -DAYS OR IFACTIVITY LAPSES FOR 180 DAYS.
ON THE JOB SITE FOR ALL INSPECTIONS. FINAL INSPECTION IS REQUIRED ON ALL PERMITS.
v
\I
PLANS IVIUST SE
PROJECT COST (Lobar and d�lalerial) S t
r .A pone: NEW CONSTRucrIOl1 RECOVER OVER EXISTING _I?E1101'E EXISTING .F REPL-ICE _RR AiC UNITS
(E•ngincci s Lctw Requ4rd) (Meeh. P =n" Rrqurcc)
CBerkpone., V SINGLE-FA1irL1'• _AILLTJ-FAMILY _COMMERCIAL
*MITIGATION REQUIRENJEWS IFF
51NCLF AAIILV:
`
1. YE:'U2 BUILT (check one): ✓ BEFORE MARCH 2002 (Go To ?_) _ AFTER 1L4RCH'-002
2. HOUSE VALUE, s_//A 1 4gs-J9 NIUSFPROVIDE: HOME INSURANCE SMWIARY SHEET OR
(IF $300,000, OR MORE, NOT INCL ING LAidD VALUE, COPY OF MOST RECENT T...X. BILL OR
GO'CO #3) PROPERTY APPR.4JSER OFFICE WEBP.I`GE
3. CCB\LITRE-ROOFLNGMITIGATIONISOCLZTEN'!'-P�CI,�C}s-and BL11..U1!�GAI'PLICATI0.1' /(1 4(?,Z.f.l���
71,
1S: l l.OR OF ROOF MATERIAL REMOVED 4�_ IIZ1F Ct!GF.Oi�r'(bOF NIATEPIAL INSTALLEDT..._
)NOTE:
V RP,
r4:
` I Vii S 1%L� �,+,i i; r Dc_
FOLLOW MANUFACTU'RER'S GUIDELL ,1.Nh NUI'ICI: UT' AC6EI TANTE FOR SIIINCI . LNSr.ILLLA o-,
PiYPE(CIRCLO. A1.4NUFALMUR. %4� I. PR UCr APPROV.ALN01SIEFR'.
(!� 1
WORKERS COMP
Rvsd. 3, lu
Tab 2
561-737-0188 Une 1 08:41:41 a.m. 05-08-2012 1/16
MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN
COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, APRIL 13, 2012 AT 9:00
A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF
STREAM, FLORIDA.
I. Call to Order. Mayor Koch called the meeting to order at 9:00
A.M.
II. Pledge of Allegiance. The Pledge of Allegiance was led by Mayor
Koch. '1141111"
11 Call.
Present and William F. Kochqllllll��� 1Ip� Mayor
Participating Joan K. Orthwl'ellingq I�1� Vice -Mayor
Muriel J.01json I1II�IIIIh, mmissioner
Fred B. D�e,'�' 1 In
C °` issioner
W. GarretLl+;cring Co °p'',ssioner
lso Present and William H. she r Tow IN''' pager
Participating Rita L. Taylor I llI�,lill�� Town U+fll lrk
Ga J. J. War II�l�,Il�jlIli Police Kief
Joh�I. IY,i'dii1 h IIIjIII' Town Attorney
Lou ed�j��l sq. Iry�Il11I Rep. O'Hare
jf !Joe Pil ot�ll roDe1 l n Agent for GSGC
11 lli�lli,�p',II4l�IfhIIIIIIIIII��IIII hmpl1, M<IIII �IIu1�dEilIl'il) IIIII�I�III (IIIIIIIIIII�JIIIfAgent for residents
Concernedw/Senc
e���Property
00 N.Ocean Re: Spence Property
Banyan Re: Spence Property
0 Banyan Re: Spence Property
250 Polo Re: Spence Property
Commissioner AH
the Minutes o£ t,'
the Certification
discussion. All
h`kch 16, 2012
cgibn Meeting of March 16, 2012
d Vice -Mayor Orthwein seconded to approve
ting of March 16, 2012 and the Minutes of
Meeting of March 16, 2012. There was no
V. Additions, withdrawals, deferrals, arrangement of agenda items.
There were no changes.
VI. Announcements.
A. Regular Meetings and Public Hearings
1. May 11, 2012 @ 9 A.M.
2. June 15, 2012 @ 9 A.M.
3. July 13, 2012 @ 9 A.M.
4. August 10, 2012 @ 9 A.M.
5. September 14, 2012 @ 9 A.M.
There were no conflicts in the meeting schedule.
B. Mayor's Proclamation -National Missing Children's Day
561-737-0168 Unei 08:21:25a.m. 05-08-2012 2/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 2
Clerk Taylor announced that the Mayor proclaims May25, 2012 as National
Missing Children's Day. She said the Mayor has already signed the
Proclamation.
VII. PUBLIC HEARING of BOARD OF ADJUSTMENT
Clerk Taylor administered the Oath to Lou Roeder, Esq., representing
Christopher O'Hare of 2520 Avenue Au Soleil, and she asked for
declarations of ex -parte communication. There was no ex -parte
communication concerning this matter.
A. Appeal Final Action of Planninlljg. Administrator
1. An application submitted by C topher O'Hare, owner of
property located at 2520 Av �tttltliAu Soleil, legally
described at Lot 36, Placel'I., b�ttil Subdivision, Gulf
Stream, Florida, for th f lowi
eiE��l.1 S II,.
a. Appeal .o£ Adminiszill.ire DeC78 0 1 to deny the
installation of ti010i a1 roof untli,(f'lsuch time as a
variance to perm ,Such material h� been applied for
and approved for tle' dwell'- at the°plfy I cation stated
herein. 1111l� ill !, II,�� III� ,
Lou Roeder, Esq., stated th4f Ii et represe� 1 hristopher I'4) are in his
appeal of the administrative �� on mad3III Town Manager William
Thrasher who determined that a ate'' ce wou� a required in this
y "''x':1111 �11�
matter. Mr. Roeder provided t Boa•• Adj z�tent with an appeal
package, he stated he is frill' ceip'' Mr fl) ihlrasher's Report
supporting his ar °illll•°{ a varu''nc �� °q a ed Clerk Taylor to
PP g 4't r �i��,{,�'" . teifl �Il,i y
distribute his reg�ib se t 111 ts. Thr' s re st.
Mr. Roeder said Mr. rt>jstshe"I ,uoted g" tion 66-1, Definitions, which
defines a vrillonit.,
�,1"i� as I:I�1111111 `Vari 1 t' a shall mean a deviation from
the distr"�r ° i°i�menfj0 �II' thill)11111�r He said he agrees
with theill�ori)1(IN t he�s,aid he dies not believe the request for a
metal roof_ eviates f thelll�'�',',equirements of the chapter. Mr. Roeder
said, in h2'u �l sport Mr ILII ; rash! 1�i',noted Section 70-99 (3) Roof design,
slope and ma " als, to d in�liticle V of the Manual. To clarify,
Mr. Roeder note•�Iithat Arty 'le V is Town -wide Standards and Article VI is
District Standar ��'imeani�� it is very specific to each district. He
said there is a p ik1s)
in Section 70-99(3) which states, "Metal
roofs (except unpa1n ilpper when used as a decorative accent or on
minor accessory struc are prohibited. Further, he said Mr.
Thrasher then quotes from District Standards, Section 70-187(2) Roofs,
Prohibited. Metal roofs*, with a footnote which reads, "Certain metal
roofs determined by the Town to be appropriate to the structure and to
the neighborhood may be approved only in instances of re -roofing of
existing structures based upon an engineer's certification that the
existing structure will not support a tile roof." To clarify, Mr.
Roeder said Section 70-187(2) basically states two conditions for his
client and one condition for the Town. For his client, the conditions
are that there must be a re -roofing situation and that there must be an
engineer's certification. For the Town, the condition is that they must
inform the client as to what metal roofs are then appropriate to the
561-737-0188 Une 1 08:22:26 a.m. 05-08-2012 3/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 3
structure and the neighborhood. Mr. Roeder stated that he asked the
Town to provide that information on November 15, 2012 and he said the
Town responded by saying that metal roofs are prohibited, period. He
said a sample of the roof they are proposing is included in the package
he provided to the Commission, which is by Englert, and he said it is
one of the highest gauge and quality of metal roofs on the market.
Mr. Roeder went back to Part I of his response,
some disparity and confusion because Article V
and Article VI states "metal roofs under cert "
he called Marty Minor of Urban Design Kilda.l
asked him if a variance would be required 4�°c
partook in this Section, and he
would be their out to the prohibition,,Ayfl
� meta
Mr. Roeder referred to Part II of
quoted Section 70-4(c)(4) How to u:,
"Prohibited items are design elemer
character or quality of the zoning
located and are not permittee z}dex
Roeder emphasized "and." Heli�tillr
metal roofs on any single fam3E�I�q
not maintain the desired chara�11'I r
Mr. Roeder said he ca n� locat i� h
nEn�l�l �i
because he said it I �I rid.'1111' n the k P
said it may not bg'�Ill lecessaI!;rl to AM
say that not only "•s it hae to n
quality of the zoninIf,f but
by the Code I Roedll I' I t�'dfii I s
that meta j po�Ns all• d wi h• r
.ILII ` 1'• ' I I it �I 3! l�I� "'illli
not a r•' ition �N.' the kfore r
saying that there is
states "no metal roofs"
0a,conditions." He said
udios and specifically
t up a metal roof if they
1response was, "No, it
11hiroof. "
1�g��Pesponse, sa' that Mr. Thrasher
61 he manual, whi states:
tjlilat d4�i1of main�6µµ'kali the desired
dis'ic ifhin whici�'�ey are
'I n It, I (Iuiv I I!odes or regutions." Mr.
r. Thra�ieNIr states that there are no
14ie��,, in ryl�llStream because they do
11,1 uality"II � any zoning district.
is sl•''' fico • tiding in the Code
def �� ij 'll I" Jim tl[Thrasher' s opinion. He
11 thi 4tause the Section does
°II aintain"the desired character and
�.'Isaid it also must be prohibited
aN11!iear reading of Section 70-187(2)
�,�!,,� hejljbode and, therefore, they are
IM,p ina' „ . nI P Section does not apply. He said
ry �o, I"' '
even tho gll,lthere arel met alllroofs on single family homes, there are
metal roof ���1on several' lti=�� fly residential condominium buildings,
such as PololEl dge and t�h two' -s pry condominiums located at 4400 and
4990 N. Ocean h!livd. ���I1
Mr. Roeder noted ion' -4, How to use this manual, saying that the
manual states, and III�,IO.•11d, "[Gulf Stream Bermuda and Mediterranean
Revival] styles are n pl'Ifmandatory but are indicative of the predominant
styles within the community." He said he believes it is important that
these styles which are talked about in the Manual are not mandatory, but
basically a guide. Further, he said in 70-187(2) it states, "a metal
roof determined by the town to be appropriate to the structure and the
neighborhood." Mr. Roeder said he spoke with Town Staff to say that his
client wanted a metal roof and asked what type of metal roof would be
appropriate and he was told metal roofs are not allowed. Mr. Roeder
said that a style map and pictures are included in his response showing
various styles and forbidden roof types, such as shingle, shake and
flat. He noted that in Place Au Soleil, where his client lives, 70% of
the lots are labeled by Town Code as "other/various styles" as are a
majority of the homes in Gulf Stream.
561-737-0186 Line 1 08:23:29 a.m. 05-08-2012 4/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 4
Mr. Roeder pointed out that in his report Mr. Thrasher stated, "even
though the footnote could provide for a metal roof, a variance would be
required as it is still listed as prohibited." Mr. Roeder repeated that
in his conversation with Mr. Minor, when asked if a variance would be
required if they wanted to partake in this provision, Mr. Minor said,
"No." Mr. Roeder added that Mr. Minor works for the firm that put the
Town's Manual together. He said Mr. Thrasher took the position that 70-
99(3), since it was in the general section applying to the entire Town,
is more restrictive, and it seemed to overrid flnh•e District -wide
Standards in 70-187(2). Mr. Roeder said tha!�ijwll
,henever there is a
conflict you look somewhere in the ord' II or a conflict resolution.
He said he found that conflict re ------q � icle VI which states,
"where the provisions of this Article c n•iictllURI�,h those of Article V,
the provisions of this Article shall i °Rail.- i9If,111sRoeder said the Code
is clear and he said where there i IlII�'conflict bet'�I� n Section 70-99(3)
and there is a conflict between Senl�u, n 70-187(2), S�iiion 70-187(2)
will prevail. He said he believes al I iancePati�e
snot >�e• ired he has
shownoverwhelmingevidence and he re�i�, t irequestsi111bhat�the Board
0 �,I,, , ii��� i�n1m
of Adjustment overrule Mr. Sher s a � deci pion and
approve his client's request „metal r hifl .
Mr. Randolph asked Mr. Roeder ill �lhe"'25 dir'I�P, (Ihim to the provision in
the Code that says w there il!a co°�• n rovisions of this
Article will prev a I���i�liitl'!` IiRoegerii i/ IIF IIIII'lat A7ticle VI, `District
Standards, SectioiIll 186 i kIIA111
a ra ��� ��lastitence Howeverwhere the provisioi4s�f thi!Articliconflict with Article V, the
provisions of this Aa�cle�"
pre 511.
Mr. Thras 1IIL�''W5R111„ R3'c° 'i std , ha jb there are metal roofs on multi -
I i 0 tIi i 3 �4� q it If� U �.
families,�kl Gulf Steam. Q�I said'I are properties that were
11. u i �u i, u
recently vexed intoi1I he To, ii Il�'jand the Code would not speak to the
issue. With lregard toil, e arNm ,rential between predominant styles,
other/variou i I yles and, snake,iighingle and other roof material, Mr.
Thrasher said ,,,gent
gent Co hwas adopted after the construction of these
homes and we ass Code � r� met when they were built. He said when
applications for y���''�-ro Vii, are submitted for these structures current
Code will be the detle� Ii�1g factor. With regard to the differential
Iilli i'
between area -wide stars ds and predominant styles, Mr. Thrasher said as
style is determined it as been our practice that the homes and the work
must align with both the predominant style section of the Code and with
area -wide. He said Staff believes both area -wide and predominant styles
are applicable in the appropriate instances, which is how they have
always administered the Code.
With regard to whether or not the exclusion of the asterisk provides Mr.
Roeder's client the immediate option to apply for a permit, Mr. Thrasher
said he believes prohibited items require a variance and metal roofs is
listed under the prohibited section of the Code. He said Town -wide
where the Code prevails, excluding the annexed area, there are no single
family homes in Place Au Soleil, the Core area or any other district in
561-737-0188 Line 1 08:24:28 a.m. 05-08-2012 5/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 5
Gulf Stream with a metal roof, which indicates it is prohibited. Based
on his interpretation of the Code, Mr. Thrasher said it is inappropriate
to have the ability to immediately apply for a metal roof because of the
asterisk. He said he believes there is a definite conflict in the Code
between Section 70-99 and Section 70-187.
Mayor Koch asked Mr. Randolph if there is a conflict in the Code. Mr.
Randolph said that Article V is the section Mr. Thrasher talks about
that creates the prohibition. He said the provisions set forth in
Section 70-186 say "however, where the visions of this Article
conflict with those in Article V, the provi `jai of this Article shall
prevail, and he asked Mr. Thrasher how th lilts in with his comment
that there is a conflict in the Code. NOIl� IIh her said he did not say
he disagrees with Mr. Roeder's interp taC-0n a ,she Code but he said
hit omespears to him that metal roofs i1�I J'r�Ibt desir� ,.,-,A,, fin single family
Mr. Thrasher said that a single affi
applicant is inappropriate. He said
in that concern and he beliedthe
opportunity to test the engi,, i4�� r
was built in 1972 with a conca eI'Nl n
similar concrete material and Il��has(
roof to date. He sa' • {{ e appl �I51' nt
permit application �11GI�� %J, ncreta110,
applicant, his cotll ctor'i ormed i4;l
wants a concrete r`O�1�Iand fers
noSJ��laI{r
indication of an ee.er'sli enort a,
t or e,gineerJ_1&",report from the
11 ' oi441 111hould al ,� i�( ave a voice
rili�e, gineer should have an
rte�r. Thrasher said the home
it Ii re -roofed in 1999 with
abl111 support a concrete
(� racti-kisubmitted a re -roof
D�II �� G� wi � drawn by the
own �Ylt the applicant no longer
al roof and there was no
hat time.
Mr. Randofl
�E'�I�!81J�Ig se"ffi pap'Ej111h. 1f MAgll Thrasher's answer relates to
IIII 4'' i i.11 II 4 uwhether ISTown m 110 ethe en',per's certification or be allowed
to hav11('�A enginee ����pl� 0 1'. 1 an inspection and report, but he said
this is ani ue to be 4!Iiscussed,separately. He said the question
before the Bo of AdjJyy,, menti 'whether or not there is a conflict in
the Code whicRlb a uires 'I' applicant to apply for a variance, and he
said Section 70i point -lout by Mr. Roeder is very important where it
says "wherel��4� pr liIsions of this Article conflict with those in
Article V, the pro vils��'IIIII: this Article shall prevail." Mr. Randolph
said Mr. Thrasher is;,�ing at Section 70-99 which prohibits metal
roofs and Mr. Roeder is looking at Section 70-187(2) which also
prohibits metal roofs, but provides an exception in the event they are
able to obtain an engineer's certification that the structure does not
support a tile roof.
Mr. Randolph said the Town requested information from the applicant
which he believes should be addressed as testimony. Mr. Randolph
administered the Oath to Town Clerk Rita Taylor, and he said there are
two points to be addressed separately. He said the first point is
whether or not there is a conflict in the Code requiring a variance, and
he noted that an argument has been made that: The section the applicant
is applying under is not in conflict because it specifically states that
551-737-0188 Une1 08:25:26a.m. 05-08-2012 6/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 6
it shall prevail in the event of a conflict; and, they are arguing that
this section is an exception to the Code because the section they are
applying under has a prohibition that says there is an exception to the
prohibition in the event they can show that the structure will not
support a tile roof. The second point relates to the engineer's
certification and whether the Town is required to accept that
certification on its face or whether the Town can test the engineer's
certification by hiring their own engineer. Mr. Randolph asked Clerk
Taylor to testify as to what she requested from the applicant with
regard to the Town being able to test the en W'pr's certification.
Clerk Taylor said, through the applicant's 1iney, she provided three
wlt i u
dates and times that an engineer would be Table and she said she
asked for his client's approval to have,l (le neer enter the premises.
She said she was told that, in the pa�p e a icant had been
unwilling to allow anyone to enter. ,I1111811Jill ill1l11ll1.,.
Mr. Roeder said Clerk Taylor did ca
information justifying the engineer'
permission to have the Town's engine
is that they are appealing A,61-�yaria
Taylor called after they filte �, � it
there are two separate points;�I`IiY ��II
required, and he said he does 1{x It A
being whether the Co,.41pisa s you
the Town can quest
'' Roeder
variance issue ric WRRd
he sI L
certification issull, eir Oltisition 1
they have done what aCo� I equire
I
certificationl:nnnim.. Il111iilu„,iillll fll!I��hl!uu,..
Mr. Roedg` 1,,i1Psaid Mr'Tilllj ra:
position�lli�p'this, butI!```e
conditions tihat fall 411
they are re -lig, ing, whi,
engineer's cerl(� cation,
asked him to say i' at he
what is best for ho
can use, shingle an1Il' `
on the square footag l!I,q..
him to ask foi'ilgata or backup
ertifi tion algal r to ask for
I11Eiom i1 ;t;,l!' He sai' ��.i Hair position
11 e III
and h 1'said Clerk
ppea, 13'!11 Mr. Roeder agreed that
ng what r or not a variance is
11�till t is';g1�`�, nd he said the second
o n � a ��II,�fication which then
talking about the
we?',Ii talking about the
that the Code is very clear and
iwhich is to provide an engineer's
h'I I�stated11111 t the Town does not have a
sai.lillthey do under 70-187(2) which has two
thell � licant. He said one is to show that
fItheyll��e, and the other is to provide an
! hick they have. Mr. Roeder said his client
not stuck on a metal roof, but rather wants
�II(� He said metal is the lightest material they
are absolutely prohibited and he said, based
the home, concrete is too heavy.
Mr. Randolph said it is his understanding is that what Mr. Roeder is
saying is his client's position is that the engineer's certification
must be taken on its face because of the way the ordinance is written
and that the Town must accept the engineer's certification. Mr. Roeder
said that is so, unless you can show cause why the Town would not have
to accept the certification, and he said if that is the case the Code
should say engineer's certification to be verified by the Town, or
engineer's certification with backup. Mr. Randolph said their
engineer's certification says "to the best of my knowledge and belief
and based on my professional opinion.”
bb1_/9/-U188 Line 1 U8:2b:24 a.m. Ub-UM-2U12 //lb
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 7
Vice -Mayor said she believes the Town can question the certification
because there has been a concrete roof on the home for 40 years and the
engineer now feels that the home can no longer support concrete. Mayor
Koch asked Mr. Roeder if his client will object to the Town's engineer
coming in. Mr. Roeder said he has so far, and he said right now we are
addressing whether or not a variance is required and he does not think
it is. Vice -Mayor Orthwein said that under the circumstances she
believes a variance is required because there is question with the
engineer's report. Mr. Roeder asked Mr. Randolph if the Town can create
a variance requirement because they question ',engineer's report. Mr.
Randolph said the Town can ask for a varianlcll1i�f it is not proven that
the engineer's certification is correct b I e if you do not meet that
standard set forth in the exception you,' 11.
ed a variance from the
prohibition. He said to Mr. Roeder that .'he b1'e�n is on you to show
you meet the exception, and he said01111
I11I'I�s reason 1 In under the
circumstances for the Town to testengineer's tification in order
to verify and it is not a reasonabnterpretation''Illthe Code to
1.
mandate that the Town accept an engi•'s c��r,tificati.lwithout having
the opportunity to test it. ,,, 111 111,. ,elllifl�lll�Il II11hil,
Mr. Randolph said there are Ag"
arate it es. He said what Vice-
, �. 1 111
Mayor Orthwein is saying is t �a �1 elievl variance is necessary in
the event the applicant has no I'metllll•I xcep��• , and he said there is
n III I„ nll
an argument that thell1'l icant h notjllthe e tion if he will not
allowtheTown to } erif II a kill 's �rtification. Mr.
Ir
'West" I(N61 y I n 11 li. • kill,
Randolph said if Ji est sls 1.11h --%,,;ad
d th ��al drmination is that the
qj II n � 11101 ii n
structure can hold the rf the IN,
will have to get a variance
from the prohibition II He we ha'�" to resolve the second question
before finall'I to ina�lb�' lili s to whether you needvariance
IFll�, ifrom the 1 • �! 1 oedeRa d, lis client has challenged the
11 t li.. i I n� nl
requiremi for a anc�•gI' d if �h I1JjTown takes the position that a
varianceil not requi d, bl elieves the applicant has not met the
conditionsl� the exceg11 � n, w�, tis one story. However, he said to
create.a varlo a becausllJInce
you 'i,1111not think the applicant has met the
conditions of lH ile, exceptsseems to be adverse to the Code. Vice -Mayor
Orthwein said shJIN`` oes noelieve the applicant has met the conditions
and she does not Ibllieill
e a Board of Adustment can accept the
engineer's certific }` �the structure has supported a concrete
11
roof for 40 years. Sf id the Board of Adjustment would not be doing
their due diligence if they did not question it.
Commissioner Devitt said he served with the group of citizens that
drafted the design manual. He said Urban Design Kilday Studios did not
write the design manual, it was a committee made up of a group of
citizens from the community. Commissioner Devitt said one of the
priorties on their list of items to be addressed was metal roofs. He
said he is very familiar with this provision because, at the time, he
owned a home in Gulf Stream with a cedar shake roof and he and a number
of citizens in the same position were concerned that if they needed a
re -roof their structure would not support a cement roof. Commissioner
Devitt said photos and addresses of structures in Place Au Soleil and
561-737-0188 Une1 OB:27:24 a.m. 05—OB-2012 8/16
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page B
other areas of Gulf Stream that cannot support a cement roof have been
provided today and he said that is why the exception is written in the
design manual. He said he believes the Town should be allowed to
question the sentence in the engineer's report stating that the
structure cannot support a tile roof after it has held a concrete roof
for 40 years.
Mr. Randolph said this hearing relates to an appeal between the
applicant and the Board of Adjustment. He asked Mayor Koch if he wanted
to call for public comment, and Mr. Randolph 0 ' inded the public at this
time that the issue is not whether you likel�l e �a1 roofs, but rather
whether or not our Code requires a varian1iB�d whether or not the Town
has the right to go beyond the engineer'Ser•+iication. Dan Sloan, an
architect with Sloan & Sloan in Delraych,'ted that over time the
assigned values to the strength of w'� Ihas f:nel%wn because of safety
factors being changed and the para�1of safety 1�aits. He said you
can get a variety of interpretatioJill
n�sfrom engineers" d those that are
most paranoid of applying a higher say fac•Qr will"�01y e a much lower
strength to the roof whereas ji�1111,p,hlnted
in realtyiii a1�I" ional arieE sis the roof
is strong enough. Mr. Roed oIbesides panoia in
applying safety factors, vacould' be a result of increased
standards and new codes due tB' I"" •qi„hurric damage over the years.
Commissioner Dering asked Mr. ,i de II ��1 is c7�5II
�nt refused to allow the
Town to have another ��!;c���;neer lo• at �• soofli 11 , if so, he asked if
his client will airy IN��I'I,�w''. Mr'I' oeOil
has not allowed it to
date due to a nu+spi"11 o£ isI es, a D Haid illprobably will not allow
it now. IIIIIIi, 9C� Ilfll'
In closing, �1�III a+ndol'AA1 gplaim e ar I two alternatives: If the
applicant i�i low��I �i�e Ile
��� t' It the engineer's report, the
Board ofilll,� •5ustmenTIII 1 iuliill'ake the�fll• cision today as to whether or not
11
a varianc'''N s require.1 r,�NIL
Board of Adjustment can defer giving the
applicant �II portuni��I� o w the Town to obtain a report from
another engilr. He s i1�i'ether engineer's report verifies the
first engineer�}BIII eport t I11be correct the decision will be easy when the
Board of Adjustml�"j” is ba din session. Mr. Randolph said, based on
what has been poiii Id ou�•' ith regard to the provision that says "in the
event of a conflict-Itin Il-9visions of Chapter 70 shall prevail," and you
can show you have metWllIF% requirements, he said his advice to the Board
of Adjustment would be "that there is no conflict and a variance is not
required. He said, if you do not show that you have met the
requirements that the roof cannot support a tile roof the direct
prohibition applies and you would clearly need a variance. Mr. Randolph
said he does not believe the Board of Adjustment is obligated to make
that determination until the applicant is willing to allow the Town to
test the engineer's report.
Vice -Mayor Orthwein said she believes a variance is required right now
under the current Code. Commissioner Devitt said if the applicant
allows the Town to have an engineer test the engineer's report and he
verifies that it is correct, it will be a done deal, however, he said if
561-737-0188 Line 1 08:28:22 a.m. 05-08-2012 9116
Regular Meeting and Public Hearing of Board of Adjustments
Town Commission - April 13, 2012 Page 9
the Town's engineer is in conflict with the engineer's report the
applicant will have to accept that move on or come back to apply for a
variance. Mr. Thrasher said he is concerned that we may not have
resolution with two engineering reports and asked if there should be
some thought to the two engineers agreeing to a third report. Attorney
Randolph said if there is a conflict between the two reports, the two
engineers can select another engineer for a third report. He said it
can be handled administratively.
Commissioner Daring moved and Vice -Chairman Or&1hwein seconded to defer
action on this matter until the next Commis II�iIIiMeeting scheduled for
Friday, May 11, 2012, allowingtime for t r
n to hire an en ineer to
inspect the roof and, if the eports arellll��i�I dict the two engineers
will jointly provide a third engineer �o resolpon. Further, in the
event the applicant will not allow i1lll10.�lown the rl i ht of a second
inspection, the Board of Adjustmen 111 II�t'1 further co s'der the matter
when back in session on May 11, 20 There was no Fi cussion. All
voted AYE. 1�I�IlII����t
�'i,,,
Mr. Roeder requested the MoYy'I �•'' be ava3l�a • �Ilin writing by Monday, April
16, 2012. It�€IIi1�1!11IIl116h.. 4 ��!flii.
VIII. Reports.
A. Town Mana021111"
1 1 I
With regard to th911 111" 1
Brannon has confi ii tha
Mr. Brannon also c{ rmed
to the project. Mr.11 til N
complete a,,11 11 urvhiall presen' !!IIIif'I t ne
EnviroDe ifn said t°I FP&I
City of Blay Beachi`•I a
a relationvN with Del ''y
for assistanc,�ll'I�I' Mayor K.
B. Arciz`�hctural i"
1. Mielknq Dakin
adincjgt�+ oj{ uj�1;'illl41Iq'' TH'rasher said Danny
is i I�it"as
c ipt d01jiltfthe Comcast estimate.
aat FP & stillnot assigned an engineer
fn aid tkill,
south end surveying is almost
fliIthe north end. Ma or Koch asked
ane w9i�" �mrepresent FP&L. yJoe Pike of
Ire not rTiq���!bus for delays. He said that the
iitionship with FP&L and since the Town has
a•• they may want to consider asking Delray
1%11jWed Mr. Pike for that suggestion.
ew & Planning Board
a. ''"'' it •1P' 2012 @ 8:30 A.M.
b. M �1 aill� 12012 @ 8:30 A.M.
C. JunIIllif06, 2012 @ 8:30 A.M.
d. July 26, 2012 @ 8:30 A.M.
e.. No August Meeting.
f. September 27, 2012 at 8:30 A.M.
C. Finance Director
1. Cash & Budget Report for March 2012
Mr. Thrasher requested that the Cash & Budget Report for March 2012 be
approved as submitted. Vice -Mayor Orthwein moved and Commissioner
Anderson seconded to approve the Cash & Budget Report for March 2012 as
submitted. There was no discussion. All voted AYE.
2. Water Usage as of March 31, 2012
Tab 3
561-737-0188 Une1 02:56:13 p.m. 07-02-2012 1112
FAX Cover Sheet
Attny. Roeder
rnone:
Fax Phone: 1-866-610-6090
(Date: 7-2-12
Number of pages including cover sheet- 12
IFROM:
Rita Taylor
Town of Gulf Stream
Phone: 561-276-5116
Fax Phone: 561-737-0188
❑ As Requested ❑ Urgent o FYI ❑ For Your Review ❑ Reply ASAP
Please find enclosed a copy of the approved minutes of the
meeting of the Town Commission held on Mav 11, 2012 as per
your request.
)risinals to Follow by Mail: Yes
CC:
Fax Phone:
No
561-737-0168 Unei
02:56:39 p.m. 07-02-2012 2/12
MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN
COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, MAY 11, 2012 AT 9:00
A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF
STREAM, FLORIDA.
Call to order. Mayor Koch called the meeting to order at 9:00
A.M.
Pledge of Allegiance. The Pledge of Allegiance was led by the
Mayor.
Roll Call.
Present and William F. Koch
Participating Joan K. Orthwein
Muriel J. Anderson
Fred B. Devitt, III
W. Garrett Daring
Also Present and William H. Thrasher
Participating Rita L. Taylor
Garrett J. Ward
John Randolph
Lou Roeder, Esq.
Mark Marsh, Bridges
Marsh & Assoc.
Danny Brannon, Brannon
& Gillespie
Marty Minor, Urban
Design Kilday Studios
Mayor
Vice -Mayor
Commissioner
Commissioner
Commissioner
Town Manager
Town Clerk
Police Chief
Town Attorney
Rep. O'Hare
Agent / Davis
Underground Consult.
Town Consultant
Tom Murphy, Esq. Rep. Concerned
Residents of Hidden
Harbour Estates
Martin O'Boyle Hidden Harbour Est.
Robert Ganger, Chairman ARPB
Margo Stahl Gammon, Mbr. Gulf Stream Shores
Condo Association
Clerk Taylor asked to let the record show that William Thrasher, Town
Manager, and John Randolph, Town Attorney, were present.
IV. Minutes of the Regular Meeting of 4-13-12.
Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve
the Minutes of the April 13, 2012 Commission Meeting. There was no
( discussion. All voted AYE.
\ V. Additions, wi
There were no chance
VI. Announcements.
A. Regular Meetings and Public Hearings
1. June B, 2012 @ 9 A.M.
2. July 13, 2012 @ 9 A.M.
3. August 10, 2012 @ 9 A.M.
4. September 14, 2012 @ 9 A.M.
5. October 12, 2012 @ 9 A.M.
t of agenda items.
561-737-0188 Line 1 02:57:14 p.m. 07-02-2012 3/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012
Page 2
Clerk Taylor noted an error in the Meeting Schedule and said the correct
date of the June Commission Meeting is Friday, June 8, 2012. There were
no conflicts with the Meeting Schedule.
VII. PUBLIC HEARING of BOARD OF ADJUSTMENT (Continued from 4-13-12)
A. Appeal Final Action of Planning & Bldg. Administrator
C1. An application submitted by Christopher O'Hare, owner of
property located at 2520 Avenue Au Soleil, legally
described at Lot 36,Place Au Soleil Subdivision, Gulf
Stream, Florida, for the following:
a. Appeal of Administrative Decision to deny the
installation of a metal roof until such time as a
variance to permit such material has been applied for
and approved for the dwelling at the location stated
herein.
Clerk Taylor asked for declarations of ex -parte communication and there
were none. Clerk Taylor administered the Oath to Lou Roeder, Esq., Mark
Marsh, Danny Brannon, Marty Minor and Martin O'Boyle.
Mr. Randolph summarized saying the Board of Adjustment considered an
appeal of the Administrative Official's decision at the April 13, 2012
Meeting as to whether or not a variance is required to place a metal
roof on a single family structure. They made a motion requesting that
the applicant to advise the Town as to whether or not he would allow the
Town to select an engineer to verify his engineer's report, and further,
if the two engineers disagreed, they would jointly appoint a third
engineer to determine whether or not the structure could support a tile
roof. Mr. Randolph said since then he received a letter from Mr.
Reoder, the applicant's attorney, advising that his client will not
allow the Town's engineer to verify under the terms of the motion, and
he said it would be appropriate to hear directly from the applicant's
attorney with regard to his client's response to the Town's request. He
said this is a quasi-judicial hearing and, therefore, the Minutes of the
April 13, 2012 Meeting which were just approved should be incorporated
into the record of this proceeding. The Minutes of the April 13, 2012
Commission Meeting will be made a part of the record and filed in the
Official Records of the Town of Gulf Stream.
Mr. Roeder said the Board of Adjustment made their motion before making
C a decision on the variance appeal. He asked the following questions:
(1) Who is responsible for the engineers' fees?; (2) When will the Town
inform his client of the appropriate metal roof if the Town's engineer
verifies and his client has satisfied the requirements of Code Section
70-187(2)?; (3) Who will accept liability if the Town's engineer and a
third engineer disagree with the owner's engineer, the Town forces his
client to install a tile roof and the roof fails?; and, (4) Is there any
precedent that has been set where the Town can impose an extra condition
beyond the requirements of the Code? Mr. Roeder summarized the
chronology of events leading to this hearing, he said the goal post
keeps shifting and he stated that his client does not want to allow the
Town to have their engineer come in to verify his engineer's
certification because he feels it is an unreasonable request.
561-737-0188 Line 1 02:58:00 p.m. 07-02-2012 4112
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 3
Mr. Randolph to Mr. Roeder: It is my understanding that your client,
regardless of the answers to the questions you raised at the beginning,
has made the determination that he will not allow the engineer's
certification to be tested by the Town, and you have already advised us
of that, is that correct?
CMr. Roeder: That is correct, and it is because of the changing goal post
and these unanswered questions.
Mr. Randolph: So the answers to those questions are really irrelevant in
regard to your client's decision because he has already made that
decision.
Mr. Roeder: We never had any answers to those questions, it was not
evident at the last hearing, and if we had those answers to those
questions it may have really helped to go a long way to be able to sit
down with my client.
Mr. Randolph: Did you ask those questions at the last hearing?
Mr. Roeder: No, these are questions that have arisen. Basically, you
and I had some discussions after the last hearing where we put forth the
question about the liability issue, that's the biggest issue.
Mr. Randolph: You are raising questions today that have not been raised
in front of this Commission before, yet your client has already made the
decision that he does not wish the Town to come in and test the accuracy
of your engineer's report.
Mr. Roeder: Without the answers to these questions, no he is not.
Mr. Randolph: We have had since the last meeting to ask those questions
and have them answered and yet your client, without the answers, has
still made the decision not to allow the Town to test the accuracy of
your report.
Mr. Roeder: We are coming to a hearing today to answer why my client
will not allow the Town to come in and verify his engineer's
certification. We have asked many times at the last hearing, the issue
Cwas we appealed the decision that a variance is required. We think
Section 70-187(2) is quite clear, a variance is not required. If the
Town wants to address the separate issue as to verifying our engineer's
certification, that's a separate issue. We have appealed only the
decision that a variance is required and that's what we are still
waiting for and we have had other conditions put on us which we are not
willing to accept.
Mr. Randolph: I just want to speak to the accuracy of at least one of
these statements about what you did at the last hearing. I believe the
Town Commission was very clear at the last hearing that you are entitled
to a variance for a metal roof subject to your meeting the conditions of
551-737-0188 Line 1 02:58:42 p.m. 07-02-2012 5/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 4
the Code, and those conditions of the Code were to get an engineer's
certification stating that the structure would not support a tile roof,
which you did. However, they have indicated, based upon other
information that was presented at the hearing that cast some doubt on
the engineer's report that it would be reasonable to allow the Town to
just test the accuracy. So that's the issue and that's why they decided
that they could not make a determination as to whether you needed a
variance until they learned what your client was willing to do with
regard to that particular matter. That is what is before this
Commission today. Now that your client has refused to allow the Town to
test the accuracy of your engineer's report, the matter is still in
front of the Commission as to whether or not you need a variance.
Mr. Roeder: The Town is putting a requirement on us that is outside the
Code and we have asked to keep this a separate issue. We want the Town
to decide, is a variance required? The Town is casting doubt on us for
reasons we do not know. If you have cause you have to give us that
cause as to why you do not think our engineer's certification is not
accurate. The Town's motion said we will defer this and not make a
decision until you provide our engineer the opportunity to verify your
certification. We feel this is adverse to the Code, it is not what the
Code says, the Code is very clear, we provided you with certification,
we should be able to apply to receive a metal roof. The Town has
coupled the two together and that is why my client is refusing the Town
to verify the certification.
Mr. Randolph: I think now is the opportunity to ask Mr. Roeder any
questions in regard to this.
Mayor Koch: Does your client, if the roof can hold the type of roof it
has now, prefer that over the metal roof or does he really want a metal
roof?
Mr. Roeder: We put that into the record the last time, my client is not
set on a metal roof. It came from the contractor that he wants a metal
roof and not concrete tile. My client would love to have a concrete
tile roof, but the engineer's certification says it will not handle it.
He would like either shingle or shake, but shingle and shake are
specifically and without exception prohibited under the Code. At least
metal is a light roof which allows for an exception which my client
needs and that's why he came in asking for a metal roof.
Vice -Mayor Orthwein said the house has held a concrete tile roof for 35
years and maybe it has deteriorated, but we cannot just accept your
engineer's report and all we want is for our engineer to go in there and
verify and you denied it now.
Mr. Roeder: It is a monumental shift because the Code says you will
provide A & B and now the Town is saying you provide A, B & you provide
C.
561-737-0168 Unei
02:59:24 p.m. 07-02-2012 6/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 5
Mr. Randolph: I don't think you are accurate, I think the Code says you
provide A, but that doesn't mean the Town has to accept A without
question. Your engineer's report which should be made a part of the
record says "to the best of my knowledge this structure will not support
a tile roof" and, on that basis, the Town has the right to check it.
C Mr. Thrasher to Mr. Roeder: Could you tell me if your client has spoken
to any other structural engineer in regards to the integrity of the roof
at 2520 Avenue Au Soleil.
Mr. Roeder: At this time I do not know, I have no knowledge if he has
or has not received an opinion from any other engineer.
Mr. Thrasher: Do you have or have knowledge of any supporting
documentation to Mr. Lunn's December 14u' engineering report?
Mr. Roeder: I do not have possession or have seen any of that
supporting information. I just know that Mr. Lunn looked at some
supporting information and even inspected the site and came up with this
report.
Mr. Thrasher read into the record Mr. Lunn's Engineering Report dated
December 14, 2011 and addressed to Christopher O'Hare, 2520 Avenue Au
Soleil, Gulf Stream Florida 33483 concerning the O'Hare Residence at
that address. He asked Mr. Roeder if what he read was Mr. Lunn's
Engineering Report and Mr. Roeder confirmed that. Mr. Thrasher stated
that he provided Mr. Roeder with a copy of the Delray Beach Revision
Form submitted to the Town on November 15, 2011 by the roofing
contractor approximately 30 days prior to Mr. Lunn's certification, and
he said the Revision reads: "Customer wants to change to a metal roof"
and does not refer to the roof structure. Mr. Lunn's Engineering Report
will be filed in the Official Records of the Town of Gulf Stream.
Mr. Randolph administered the Oath to Rita Taylor, Town Clerk.
Mr. Thrasher to Clerk Taylor: Could you tell me what the conversation
was with the roof contractor, I believe her name is Diana, in regards to
her providing you this form as a revision to the already permitted
concrete roof?
Clerk Taylor: She said when she presented it that the owner had decided
that he wanted to have a metal roof and the revision was for the
previous application that had been submitted several months ago for the
concrete tile roof.
Mr. Thrasher: To your knowledge was that concrete tile roof permitted?
Clerk Taylor: It was permitted by the Building Department in Delray
Beach and she went on to say she was wondering why they had not been
told to lay the tile because the underlay had been on for some time and
that's when they received the revision form to go to metal.
561-737-0168 Unei
Regular Meeting and Public Hearing
03:00:07 p.m. 07-02-2012 7/12
Town Commission - May 11, 2012 Page 6
Mr. Thrasher to Mr. Roeder: Is it correct to say that your client
became aware of the existing roof condition as a result of Mr. Lunn's
technical report?
Mr. Roeder: No. It is quite evident you are asking questions prompted
by your attorney.
CMr. Thrasher: Excuse me, that is not an assumption that is correct.
Mr. Roeder: You made assumptions too, you made an assumption that Diana
is the contractor, Diana is not the contractor, she is your contact
person. The contractor of record I think is Mr. Maroni for Roofco. She
is a contact person so what she says I think is irrelevant. You bring
referrals to timelines, December 19th, and I told Mr. O'Hare you better
get something in writing. He knew before the 11th that there was a
problem, became concerned, he contacted Mr. Lunn who gave him a verbal,
and after it was rejected I said I think you better go back and get
something in writing, which he did on December 15th. We approached the
Town in March saying why can't we do this and we were told you cannot do
it period because one part of the Code says it can't be done, and we
found out last month that that part of the Code does not apply.
Mr. Randolph to Mr. Roeder: Is your client here to allow us to test the
accuracy of the statements you are making on his behalf?
Mr. Roeder: No, he is not.
Mr. Randolph: Is the engineer here that did this report?
Mr. Roeder: No, he is not.
Mr. Randolph: Did you file for the engineer at the last hearing to
allow the counsel to question the engineer in regard to his report?
Mr. Roeder: I don't think we were asked to bring the engineer at the
last hearing and no, we did not file.
Mr. Randolph: Despite the fact that the letter said "if I can answer
any other questions" the Town has not had an opportunity to have these
( questions answered by the engineer.
Mr. Roeder: The same thing would be to ask, when we first approached
the Town on November 15th about putting on a metal roof and the Town told
us that metal roofs were not allowed period, why we were not told about
the exception. We were not told about a section in the Code that allows
you to have this and my client discovered this on his own.
Mayor Koch said the Town would like another engineer to verify whether
or not the structure can support a tile roof, and he said they cannot
move ahead with the applicant's request until they can do so.
Commissioner Devitt said the applicant probably was not told about the
exception for a metal roof because he applied for a concrete roof
561-737-0188 Une1 03:01:37 p.m. 07-02-2012 8/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 7
replacement, and he said, with regard to the intent of the manual, a
major item was to prohibit metal roofs. Commissioner Devitt said a
special provision was written for those with existing shingle or shake
roofs that could not later support concrete tiles without having to
convert the entire roof system, which would have caused undue hardship.
Mr. Roeder said the provision does not state that it applies only to
those with shingle or shake roofs, he said all roof structures
C deteriorate over time and the provision should cover all categories.
Commissioner Devitt agreed; however, he said the applicant has an
existing concrete tile roof and he if the applicant is confident that
the structure will no longer support it, he should allow the Town's
engineer to verify.
There were no comments by the Public. Mr. Randolph said he understands
the applicant's position is that he has met the Code exception requiring
only an engineer's certification and that there is nothing in the Code
requiring a certification to be verified. On the record, Mr. Randolph
stated, "Yes, the applicant is entitled to a metal roof without a
variance as long as he meets the exception in the Code which requires
him to provide the engineer's certification. He said this should set
the record straight and it sets the question that may come before a
subsequent court in the event the applicant decides to appeal. Based
upon those facts, the question before the Board of Adjustment is, does
the Board consider a variance to be required on the basis of the
applicant's refusal to allow the engineer's certification to be tested?"
Mr. Roeder said the engineer's language "to the best of my knowledge" is
standard, and he said if the Board's position is that they doubt the
engineer's certification, he believes it should be very specific in the
record as to what casts that doubt. He asked, on the record, "What is
the real reason as to why the Town is placing the extra requirement, is
it because they do not like metal roofs?" Mr. Randolph said it is not
that the Town does not like metal roofs, the Town provides an exception
in its Code to allow metal roofs. He said there is a record before you
from the last hearing which sets forth facts as to why the Board
questions the engineer's report. It is based on previous conduct of
your client, and based upon what has gone into the record today that,
before getting an engineer's certification, the applicant previously
stated that he wanted a metal roof. Mr. Roeder said his client never
stated that he wanted a metal roof, that was something written on a
Cpiece of paper.
Vice -Mayor Orthwein said she stands by the previous request to have
another engineer verify the certification. Commissioner Devitt said the
Town has questioned submittals in the past and has consulted with their
engineer on many occasions to acquire reasonable backup. Commissioner
Dering moved to deny the request for a metal roof on the basis that the
Town has not been allowed to verify the engineer's certification, and he
further moved that the applicant can apply for a variance if he so
desires. Mr. Randolph clarified the motion saying that the question
before the Board is whether or not they sustain the opinion of the
551-737-0188 Une 1 03:02:32 p.m. 07-02-2012 9/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 8
Building Official that a variance is required. He said in the event the
Board supports the Building Official's decision that a variance is
required for a metal roof, the primary reason is that the applicant has
not satisfied that portion of the Code which provides an exception to
allow a metal roof because he has not allowed the Town to verify the
engineer's report. Vice -Mayor Orthwein seconded the motion. There was
Cno further discussion. All voted AYE.
VIII. Items Related to Previous Approvals.
A. Change of roof tile at 554 Palm Way submitted by Mark Marsh,
Agent for Mr. & Mrs. James Davis
Mark Marsh said revisions to originally approved plans for this property
were approved by the Commission with the exception of the roof tile. He
said the applicant wanted a gray tile, the Commission did not object to
the color, but they requested to see a sample of the actual tile. Mr.
Marsh said he submitted a gray tile to the ARPB at their April Meeting,
which is smaller in size and has a different finish than the originally
proposed tile, and the ARPB recommended approval. He displayed a sample
of the new roof tile to the Commission. Vice -Mayor Orthwein moved and
Commissioner Anderson seconded to approve the roof tile. There was no
discussion. All voted AYE.
IX. Reports.
A. Utility Undergrounding Update -Danny Brannon (engineer)
Danny Brannon reported that FP&L finally assigned an engineer to the
project two weeks ago and his firm has had contact with FP&L several
times. He said they have a redline design from both Comcast and AT&T
and FP&L will be submitting their redline design. Commissioner Devitt
asked if drawings will be available showing placement of the entire
infrastructure and Mr. Brannon confirmed that. He said AT&T and Comcast
have gone through the route, FP&L will do the same, and if there are no
underground issues they will put a detailed construction plan together.
Robert Ganger said Jupiter Inlet Colony has less than 1% left to
complete their project and are approximately $500,000 ahead in cost. He
said Danny Brannon has stayed on top of Gulf Stream's project, any delay
caused by FP&L has been solved and, unless something unexpected comes
up, the project will be completed on time and probably at a lower cost.
Robert Sywolski of Gulf Stream said FP&L was in Town recently to repair
C a fallen pole, leaving the grounds in despicable condition. Mayor Koch
asked Mr. Sywolski to submit photos and he asked Mr. Thrasher to look
into this. Mr. Brannon said his firm hires their own contractors who
will be responsible for clean up, repair and replacement for any damage
due to construction.
B. Town Manager
1. Update on Conditions & Progress at 1220 N. Ocean Blvd.
Mr. Thrasher said he and others have driven by the site since April 13th
and observe a general condition of dust control, noise is not excessive,
it is clear of trash and debris, and he said a superintendent has been
assigned to the project. Staff has had various communications and
meetings with Delray Inspections, Delray Landscaping & Planning, the
561-737-0188 Unel 03:03:25 p.m. 07-02-2012 10/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 9
Developer, Job Superintendent and Subs for site prep and drainage
installation, and he said everyone is cooperating. The Gulf Stream
Police Department regularly patrols this area and anything out of the
ordinary will be reported to the Town Manager. Mr. Thrasher said Staff
has received various certifications from Delray Landscape & Planning and
the Developer's Landscape Architect stating that, to date, one tree on
the eastern buffer has been removed, which should have stayed. He said
C he just received an email saying Delray's Landscape Planner and
Certified Arborist have verified Tree No. 167 on the eastern buffer is
also damaged, there was visible trunk decay and it fell due to recent
storms and termite damage. Mr. Thrasher said Staff has provided timely
responses to several information requests, including copies of the
approval process, permits, minutes of the subdivision approval process,
etc. He said damage in the buffer area will be handled according to the
conditions in the Land Clearing Section of the Subdivision Approval.
Martin O'Boyle of Hidden Harbour Estates said that he and several of his
neighbors are concerned with the removal of the Banyan Tree from Hidden
Harbour Drive and he displayed a photo of Mrs. Touhy's driveway that
recently appeared in the Coastal Star showing the scope of the damage to
the canopy. He said the canopy damage is serious and professionals must
come up with a design to close the hole. Mr. O'Boyle said he spoke to
Tom Laudani this morning who is the Developer of the property, and he
asked him to please work with the neighbors to rectify the situation.
He said Mr. Laudani was angry and stated that he did nothing wrong, he
did nothing to affect the canopy and he and his partners are ready to
litigate. Mr. O'Boyle said loosing the canopy will devalue their
property and he pointed out that, during the approval process, the
developer agreed to protect and maintain the canopy over Hidden Harbour
Drive and the neighbors relied on that statement. He said the neighbors
do not want to take legal action, but he believes they are entitled to
legal counsel, landscape architects and maybe a certified arborist to
help them put the canopy back and he would like the Commissioners to
look into this and help them. Mr. O'Boyle said he read the Interlocal
Agreement between the Town and Delray Beach and it does not give Delray
the right to approve removal of our trees.
Tom Murphy, Esq. was present on behalf of the residents and neighbors of
Hidden Harbour. He distributed a binder of information to the
Commission. Mr. Murphy said when the proposal for the subdivision was
presented last Spring, the ARPB was sensitive to the concerns of the
residents with regard to the preservation of the canopy and they asked
the Developer to meet with residents and neighbors. He said the
Developer had a capable and powerful team of attorneys, an architect, a
landscape architect and an engineer giving testimony on his behalf, and
he said the Developer and his team did meet with residents and neighbors
and developed an agreement. Mr. Murphy briefly summarized the
information he distributed pointing out that, during original testimony
of the Developer and his team, it was presented that a buffer zone and a
meandering site wall would be designed for the preservation of the
historic canopy. He said their representation that the canopy would not
551-737-0168 Line 1 03:04:23 p.m. 07-02-2012 11/12
Regular Meeting and Public Hearing
Town Commission - May 11, 2012 Page 10
be altered was absolute and if the Commission relied on that, they have
the right to force the Developer to rectify this situation.
Commissioner Dering asked if there is proof that the tree was outside of
the buffer. Robert Glynn of Delray Garden Center stated that the trunk
was 50/50 outside the buffer and Commissioner Devitt said he drove by
C the site, the trunk was there and it was outside of the buffer, but its
removal affected the canopy. Mr. Randolph said whether or not the tree
was outside of the buffer, it was made clear that the canopy was not to
be disturbed. He said the canopy preservation was part of the
Developer's Agreement between the Developer and residents, it was not
part of the Subdivision Agreement between the Developer and the Town.
However, he said the 15' buffer and preservation of the canopy was a
concern and specifically addressed, and he said the Town has the right
to red tag the project until the Developer complies. Commissioner
Dering asked what the Town can legally do to assist the residents. Mr.
Randolph said if the residents believe there is a violation, they ask
the Developer to abide by their agreement and the Developer challenges,
the Town will stand ready to testify. Commissioner Dering asked Mr.
Randolph if he would look into what the Town can do to assist the
resident and Mr.'Randolph agreed to do so.
C. Architectural Review 6 Planning Board
1. Meeting Dates
a. May 24, 2012 @ 8:30 A.M.
b. June 28, 2012 @ 8:30 A.M.
c. July 26, 2012 @ 6:30 A.M.
d. No August Meeting.
e. September 27, 2012 at 8:30 A.M.
2. Zoning/Development Code Amendment Recommendations
Marty Minor said the ARPB has reviewed multiple provisions of the Zoning
Code and have made their recommendations to the Commission. With regard
to entry features, he said the Code previously allowed two
interpretations which have been clarified to eliminate confusion. With
regard to basements, Mr. Minor said they are not included in the FAR in
current Code, but he said they are usable space. The ARPB recommends
that if a basement can be accessed from the outside of the structure the
square footage would count 100% of the FAR and, if not, it would count
75%.
Mr. Randolph said the Commission will not be able to act on this matter
Ctoday. He asked if they needed more time to review the recommendations
and, if so, he suggested scheduling a special meeting for the purpose of
discussing and acting on Code Amendment recommendations. Vice -Mayor
Orthwein asked about slurry -coated roof tiles and if the ARPB recommends
a definite no. Mr. Minor confirmed that. Vice -Mayor Orthwein moved and
Commissioner Dering seconded to schedule a special meeting for the
purpose of reviewing and acting on Zoning Code Amendments. Clerk Taylor
suggested they hold a special meeting as soon as possible and prior to
the June BLh Commission Meeting. She said consideration of the Code
Amendments ties in with the Comp Plan Amendments, the Ads are set and
everything should be complete by the July Meeting. The consensus of the
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Tab 4
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Tab 5
ENGINEERING
221322+ tam,
Palm 1laaeh Gardens, 11-33118
Phon,:.(ihl)625*455
Fax: (W) 7titt-2515
e-mail
Deet-mln:r 14, 2011
Qoris CY11are
X20 Avenue Au Soleil
Gulf Stream, Fl 3-W.1
Rt-. O'1 tare Residence at 2520 Avenue Au Soleil. Gulf Stream, FL.
Dear.Mr. O'Hare:
On December 13, 2011, 1 inspected the existing roof framing at the referenced address.
The existing roof framing will not support the design loads of a concrete or clay the nx)f. "lie
lighte-st roofing system possible is tim-&d.
1 certifv to the best of my knowledge, belief and professional judgment that the referenced roof
framing will not support a tilt roof.
If I can be of further service +lease call.
µtin nrryrr
CE
Sincerely, �CEtig9�l�'.
T.E. t unR P I ; ti SF•..Gy
= y p NO 26/ 19 :2
J moi.'✓ 4�L"'.i..� .-.. * • * �
Terrence C 1 un¢ q% R_EATCCBF
rLRe, #?6119=.,Fs�40 Ot.NAL
Cc: William Thrasher, Town Manager, Town of Gulf Stream
ENG IN E ER I -N G I E RREiNCE E. LU\,r1, P_L, KS1. CCs
';Thruston D&O. :11R
P.tlm Reach GiMrn•. R. ;g415-7ncr
1561102:.0153 F.t.-. (501101; 1ty3
oravl t.611111VVlWt
Qualifications and Experience
• 40 fears in the construction Industry
• 10 Years as Dade County Building Official
• I j Years of structural design and analysis
• 10 Years with general contractors
• 28 Yrs Certified Construction Specifier
• Registered Engineer in: Florida 30 yrs, Georgia, South Carolina, North Carolina, and with
111 National Council of Examiners for Enemeering
Awards and Recognition
• Pcllow, of the Construction Specifications Institute WSI)
• Outstanding service award from PFS
• CcnificalcofAppreciation,BOMA
• Engineer of the Year, Miami Chapter FES
• Public Official of the Year. IADC
• Technical Commendation. CSI SE Region
• Certificate of Appreciation. NAWIC
• Hnrold Rappaport Award. CSI \ liami
• Mcrit Award as CSI Miami Chapter President
Professional Associations
• Construction Specifications Institute
• Florida Engineering Society
• National society of Professional rneinecrs
• American society of Civil Engineers
• American Concrete Institute
• APA Engineered Wood Association
• American Institute of Timber Construction
Website: http://telunnpe.com
Resume: http://telunnpe.com/TE%20Lunn's%20Resume%204.23.03%20w%201ogo.pdf
Tab 6
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISSIONERS
WILLIAM E KOCH. JR. Mryu,
JOAN K. ORTHWEIN, Vice Maya,
HIED 8. DEVITT III
CHRIS O. WHEELER
MURIEL J. ANDERSON
March 6, 2012
Louis L. Roeder, Esquire
7414 Sparkling Lake Road
Orlando, Florida 32819
Re: Christopher F. O'Hare
2520 Avenue ALL Soleil
Gulf Stream, FL 33483
Dear Mr. Roeder:
Telephane
(581) "s.51 is
Fu
(561) mois8
Town Met"ar
WILLIAM H.THRASHER
TOWn CHNk
RITA LTAYLOR
I am responding to your email to Mr. Randolph dated March I, 2012 and your email to
me dated March 5, 2012. You have asked several questions for which I will provide the
following answers and information.
This is to confirm that your client. Mr. O'Hare, has withdrawn the window and door
change out permit application. The Towm will indicate "withdrawn' on this application.
Code Book
There is one code book for the Town of Gulf Stream. This code is used by the Town
Commission, Police Department, and Staff and is the same code that is available to the
public. Interim amendments can be approved by ordinances through public process
which do not immediately get codified. When a code book is purchased. copies of the
un -codified ordinances are also provided at the time of purchase.
Landscape Permits "Anv"
Section 70-146 through section70-150 provides standards and information for those
applicants desiring to install landscaping. In those sections references are made in
regards to what is "required", "preferred", "discouraged" and "prohibited". "The
landscape architectural standards have been developed to reinforce the overall character
and the image of the town environment:' The use of the term "any" can be misleading in
nature as the scope of work. amount, type, impact on adjoining and abutting properties of
100 SEA ROAD, GULF STREAM, FLORIDA 33483
Christopher F. O'Ilare
3530 Avenue An Soleil
March 6, 2012
Part 2
the proposed landscape would be used to determine the level of approval required. A
level I application is often discussed with the City of Delray for their input to determine
the need of a permit. Also, the determination and/or decision by the planning and
building administrator can be based on section 66-1412 (h). That decision can be
challenged as provided in section 66-145 (12). In fact. section 66-141 2(h) becomes
rcicvant and applicable when the planning and building administrator has concerns about
the potential impact of the proposed plan.
Irrieation Permit
The City of Delray will most likely require an irrigation permit. In the event that Delray
does not require an irrigation permit, a separate permit by the Town will not be
necessary.
Planting in the Town Richt-of-way.
One of the objectives of reviewing a landscape site plan is to help prevent unnecessary
infringement onto neigbboring or abutting properties. Many times new owners are not
aware where their property lines actually are. The district of the subject property has
very large road right-of-ways and is not easily determined at first glance. The use of a
properly survey can easily provide basic guidance in such determinations.
A similar situation occurred in 2004. This particular situation was observed by me when
doing my "weekly drive by" in Place Au Soleil. A new resident began "at will' to add
hedges in the front of the home near the roadway. In doing so, the fire hydrant was
covered from view. The owner was notified that the plantings were to be set back onto
his property and out of the right-of-way. The owner did not agree and presented a
challenge of my decision before the Town Commission. The Town Commission decided
with the administrator and further directed that if similar situations occurred, action was
to be taken to keep new plantings out of the Town's right-of-way. Additional discussion
took place as related to existing hedges in the right-of-way. I Has directed to allow
existing hedges in the right-of-way but in the event changes to hedges were requested. or
occurred without a request, that I was to prohibit such actions. This is in pari why your
client does observe hedges, and in some cases trees. located in a similar directional line
of sight. Through the natural evolution of the life cycle of landscape materials and
owners desiring various changes or upgrades the Town's right-of-way will be available
for infrastructure improvements. The Town Commission believes that this process is the
least disruptive corrective measure to the neighborhood and the Town residents. This
measure is consistent in all districts, not just the Place Au Soleil district.
Christopher F. O'Hare
2520 Avenue Au Soleil
March 6.2012
Parti
Metal Roof— Principle and Minor Accessory Structures
Your recently received email dated March 5. 2012 confirms, "In response to your entail
query oj,l7arch 2, 2012. my client knows ofat least two properties in Gulf Stream with
metal roofs. These properties are not single family homes ".
There is distinction that does render consequences because the entire 70 Chapter "Gulf
Stream Design Manual" pertains exclusively to single family homes. 4450 North
Ocean Boulevard was just annexed into the Town in March 2011 and permitting for this
structure was handled through the Palm Beach County review criteria. The Gulf Stream
Multi Family Code available and used for the 3851 North Ocean Boulevard was silent to
whether metal roofs could be used. Because the metal roof material was not stated or
listed as prohibited by the code, the metal roof material was approved.
The Town does not have a' list of metal roof materials" which you requested as such roof
materials are prohibited by two section of the code; section 70-187(2) and 70-99 (3),
with section 70-99 (3) being the most restrictive of the two. "Prohibited. Metal roofs
(except unpainted copper when used as a decorative accent or on a minor accessory
structure)
Therefore, a variance application would be required to allow the use of metal roof
materials. A public hearing of the variance before the Town Commission is necessary.
Property owners within 300 feet of this property will be noticed of this public hearing so
that they can be heard as related to the variance request. At this heating Mr. O'HarCs
engineer can appear and present his findings, or he can have his letter placed in the
record. The Town Commission would also hear from experts used by the staff. In the
event a variance application is filed, permission to enter the structure will be necessary so
that technical experts can properly evaluate the applicable structural components. Within
a couple of days of the completion of the variance application your client will be
contacted to coordinate access to the premises.
Your client can also choose to challenge this administrative decision as provided in
section 66-145 (12). The Town's staff will provide the necessary paperwork and
application materials upon your client's request.
Respectfully,
�Zei�1
William H. Thrasher
Town Manager
Tab 7
GULF STREAM DESIGN MANUAL ¢ 70.187
ARTICLE VI. DISTRICT STANDARDS
Sec. 70-186. Generally.
(a) The district standards, which are outlined in section 70-187, are based on the individual
characteristics of the five single-family zoning districts discussed earlier in this chapter. The objective is
to maintain and protect the existing distinctive character of each of the districts. As a result, sometimes
even relatively subtle differences in design direction have been provided for in the standards.
(b) These district standards are intended to be used in conjunction with areawide standards. Because
many of the concepts are discussed and illustrated in article V, reference should be made to article V for
a better understanding of a standard's intent. However, where the provisions of this article conflict with
those in article V, the provisions of this article shall prevail.
(c) Finally, it should be noted that these standards are the result of all of the issues discussed earlier
in this chapter and clarification of intent may in fact be found in articles I and II. These standards are
intended to allow a reasonable amount of individual design flexibility while keeping the interests of each
neighborhood or zoning district in mind.
Sec. 70-187. Table of district standards.
Supp. No. 1 CD70:77
Zoning Districts
Gulf Stream Core Ocean West Beachfront North/South Place au Soleil
1. ARCHITECTURAL STYLE
Preferred
Gulf Stream-
Gulf Stream-
Med. Revival
Gulf Stream.
Gulf Stream -
Bermuda
Bermuda
Gulf Stream-
Bermuda
Bermuda
Anglo Caribbean
Anglo Caribbean
Bermuda
Anglo Caribbean
Anglo Caribbean
British Colonial
British Colonial
Anglo Caribbean
British Colonial
British Colonial
Colonial West
Colonial West
British Colonial
Colonial West
Colonial West
Indies
Indies
Colonial West
Indies
Indies
Georgian
Georgian
Indies
Georgian
Georgian
Med. Revival
Med. Revival
Georgian
Med Revival
Med. Revival
Discouraged
Monterrey
Non-descript, which is to be defined as not having an apparent architectural style including but not lim.
ited to vernacular.
Prohibited
A -Frame, Geodesic domes, Art Deco, Contemporary, Cracker
Other theme architecture not characteristic of South Florida or Gulf Stream
2 ROOFS
(not applicable to decorative elements or roof features such as chimney caps, cupolas and dormers)
Required
90% of visible roof must maintain a minimum slope of 10%
True to architectural style
Preferred
Low pitched hip
Low to medium
Low to medium
True to architec-
Low pitched hip
White tile
pitched hip or hip-
pitched hip or hip-
tural style
White tale for Gulf
If two-story:
gable combinations
gable combinations
Stream -Bermuda
dormers and
White tile
White file for Gulf
Red barrel tile for
stepbacks
Stream -Bermuda
Med. Revival
Red barrel tile for
Med. Revival
Discouraged
Front gable
Front gable
Front gable
Styles which incor-
Front gable
Barrel tile
porate very low or
Pan tile
steep slopes
S -tile and roll tile
Supp. No. 1 CD70:77
§ 70-187
GULF STREAM CODE
Supp. No. 1 CD70:78
Zoning Districts
Gulf Stream Core
Oman West
Beachfront
NorthlSouth
Place au Soleil
Prohibited
Steep roofs (aver
S -tile and Roll the
-tile and Roll tile
45")
IS
S -tile and Roll tile
Mansard
Non-eerthtone colors (except white)
Bright, un -naturalistic looking roof material
Metal roofs'
Primary color tiles/shingles
Gambrel
Flat (over 10% visible)
All white tile other than flat cement file
'Certain metal roofs determined by the town to be appropriate to the structure and to the neighborhood
may be approved only in instances of re -roofing of existing structures based upon an engineer's certifica-
tion that the existing structure will not support a the roof. Additionally, unpainted copper may be used
either as a decorative accent or an minor accessory structures.
3. BUILDING HEIGHT
Required Under 30 feet Under 30 feet Under 35 feet Under 30 feet
Under 30 feet
Preferred One-story One- or two- stories One- or two- stories One- or two- stories
One-story
Discouraged One-story ceiling One-story ceiling
One-story calling
height over 15 feet height over 15 feet
height over 15 feet
Prohibited Abrupt grade change between house and yard ("pedestal house" appearance)
4. WALLS
(applicable to all walls located between the street and the minor accessory setback line. The measurement of all walla refer-
enced herein shall be from the lowest grade adjacent to the wall.)
Required
4-6 feet wallarsmping
y walls or fences
must be screened
ng AIA most be
from AlA by land-
eened by land-
scaping
Walls most be finished on both sides
Preferred
None
Intermittent or con-
=e:d
Intermittent or con.
Accent only
None
Low wall/fence cam.
by plant ma-
sealed by plant ma-
Correspond to ar-
Low wall/fence com-
bination
terial
terra]
chitecture
bination
Low wall/hedge
Correspond to ar-
Correspond to axe
Not to exceed more
Low wall/hedge
combination
chitecture
chitecture
than 75% of front-
combination
Correspond to ar-
age
Correspond to ar-
chitecture
chitecture
Simple, uncluttered, traditional forma
Discouraged
Use as perimeter
Entry or accent
wall
wall
Excessive ornamentation including reveals, decorative tile, bending, etc
Prohibited
Walls over 4 feet
Walls and entry
Walls and entry
Walls and entry
Walls over 4 feet
Perimeter walls
piers over 6 feet
piers over 8 feet
piers over 6 feet
Perimeter walls
Entry piers over 5
measured from the
measured from the
measured from the
Entry piers over 5
feet
lowest grade adja-
lowest grade adja-
lowest grade adja-
feet
cent to the wall
cent to the wall
cent to the wall
Walls less than 12
feet from AIA r.o.w.
line
Unfinished concrete block (painted block is not considered "finished")
Open bond "web"
Solid continuous exposed walls
Walls closer than 7.5 feet to the edge of street pavement
Walls on rights-of-way or in visibility triangle
6. ENTRANCE GATES
Required
None
Supp. No. 1 CD70:78
GULF STREAM DESIGN MANUAL ¢ 70.187
Supp. No. 1 CD70:79
Zoning Districts
Gulf Stream Core
Oman West
Beachfront
North/South
Place au Soleil
Preferred
Discrete or hidden
Corresponding to
Discrete or hidden
None
Corresponding to
architectural style
Corresponding to
architectural style
architectural style
Discouraged
All
I All
All
Prohibited
All
Primary calor
Primary color
Over 6 feet
Over 6 feet
Over 6 feet
Over 8 feet
Solid
Solid
Solid
6. FENCES
(applicable to all fences located between the street and the minor accessory setback line. The measurement of all fences refer-
enced herein shall be from the lowest grade adjacent to the wall.)
Required
Fences must be
Fences must be
screened from view
screened from view
from AlA by land-
from any public or
scaping
private roadway by
landscaping
Pools 4 feet minimum
Fences must he finished on bath sides or screened
Consistent with architectural style of house
Preferred
Low -open wand
Low -open
Consistent with ar-
Consistent with ar-
None
Intermittent or con-
chitectural style
chitectural style
Low -open wood
coaled by plant ma-
Intermittent or cen-
terial
reeled by plant ma-
terial
Discouraged
PVC, plastic or vi-
PVC, plastic or vi-
PVC, plastic or vi-
PVC, plastic or vi-
PVC, plastic or vi-
nyl
nyl
nyl
nyl
nyl
Solid (for example,
Solid (for example,
Fronting property
stockade or shad-
stockade or shad-
Solid (far example,
owbox)
owbax)
stockade or shad -
Unpainted
awbax)
Unpainted
Prohibited
Over 4 feet
Over 6 feet
Over 8 feet
Over 6 feet
Over 4 feet
Fences less than 12
feet from A1A ro.w.
line
Cheinli- (unless concealed by plant material)
Fences closer than 7.5 feet to the edge of street pavement
Fences an rights-of-way or in visibility triangle
7. WALLS AND FENCES: ALONG SIDE AND REAR PROPERTY LINES AND LOCATIONS NOT VISIBLE FROM
STREET (Outside of front setback area. The measurement of all walls and fences referenced herein shall be from the lowest
grade adjacent to the wall.)
Required
Pools} feet minimum
Walls must be finished an both sides
Fences must be two-sided or screened
Preferred
Consistent with architectural style
Discouraged
Walls or fences over
Walls or fences overWalls
or fences over
6 feet
6 feet
6 feet
Prohibited
Chainlink (unless concealed by plant material)
Any wall or fence over 8 feet, as measured from the lowest grade adjacent to the wall
Walls and fences over 4 feet located between minor accessory setback line and waters connected to the
Intracoastal Waterway or the 1978 CCCL
Solid continuous exposed walls
B. DRIVEWAYS
Required I Sufficient to provide two off-street parking spaces.
Supp. No. 1 CD70:79
§ 70-187
GULF STREAM CODE
(Ord. No. 00-1, §§ 26, 51, 3-10-00; Ord. No. 03-3, § 1, 5-9-03; Ord. No. 03-9, §§ 3-6, 10-10-03; Ord. No.
008-5, § 4, 9-5-08)
Secs. 70-188-70-205. Reserved.
Supp. No. 1 CD70:80
Zoning Districts
Gulf Stream Core
Ocean West
Beachfront
North/South
Place au Soleil
Preferred
Pervious material
Pervious material
Pervious material
Pervious material
Pervious material
for example:
for example:
for example:
for esample:
or textured mono -
Chattahoochee
Chattahoochee
Chattahoochee
Chattahoochee
litbic surface
atone
stone
stone
atone
for example:
Pavers
Pavers
Pavers
Pavers
Chattahoochee
Not to exceed 50%
stone
of front yard
Pavers
Circular drives
Thstured concrete
with island plant-
ings
Discouraged
Asphalt
Imous drive-
pervi
Asphalt
Impervious drive -
impervious drive-
way surfaces
way surfaces
way surfaces
Untextured mono-
lithic surfaces
Prohibited
Painted driveways
Primary colors
Exposed earth
Tire strips
e. FRONT YARDS
Required
Compliance with the North Ocean Over-
lay District requirements
Preferred
Screen from street
Large spacious turf
Screened from
Open, naturalistic
Open large turf or
by 5 feet to 8 feet
or low planted area,
street by walls/
plantings
planted area
hedge or by low
concealed by perim-
plantings/ gates
Informal groupings
Scattered canopy
fence (4 feet or un-
eter plantings
Naturalistic plant-
Lush/exotics
trees
der)
Dense natives
ings
Foundation plant -
Scattered canopy
Informal
ings
trees
Layered lush/exot-
ics
Discouraged
Open yards
Wide open view
Wide open view
Tall hedges
Tram street
from street
Prohibited
Hardscape over
Hardscape over
Hardscape over
Hardscape over
Hardscape over
60% of front yard
20% of front yard
20% of frontyard
60% of front yard
40% of front yard
(Ord. No. 00-1, §§ 26, 51, 3-10-00; Ord. No. 03-3, § 1, 5-9-03; Ord. No. 03-9, §§ 3-6, 10-10-03; Ord. No.
008-5, § 4, 9-5-08)
Secs. 70-188-70-205. Reserved.
Supp. No. 1 CD70:80
Tab 8
§ 70.98
GULF STREAM CODE
Excmhe height and mass
Sec. 70-99. Roof design, slope and materials.
Roofs are a major visual element and should be carefully considered as to the proportion, texture, color
and compatibility with both the house style and neighboring buildings. Similarities in roof types create
a visual continuity in the streetseape and neighborhood. Broad low roof lines with overhanging eaves
provide a reassuring sense of shelter and create shade for underlying windows.
(1) Preferred.
Exposed gutters and downspouts painted to match adjacent roof or wall material
Exposed rafter tails
Flashing, vent stacks, and pipes painted to match adjacent building surface
Gutters and downspouts designed as a continuous architectural feature
Hip or gable roofs
Low pitched roofs (under 28' or 6:12 slope)
Roof material true to architectural style
Roof overhangs (two to 21/2 feet)
Roof pitches over porches or ancillary structures (under 45' or 1:1 slope)
CD70:44
GULF STREAM DESIGN MANUAL § 70-99
Simple roof geometry
Tile roof material
(2) Discouraged.
Roof material uncharacteristic of architectural style or zoning district
"S" -shaped tile in some districts
Shed roofs
Steep slopes (over 45° or 1:1 slope)
Very low pitched roofs (less than 18° or 5:12 slope)
(3) Prohibited.
Low Slope
Under 28°
(6:12 slope)
Avenge Slope
285'
(6:12-1:1)
j\\
`Steep Slope
Over 45°
(1:1 slope)
Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood
shingles
Bright, unnaturalistic-looking roof material
Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof
massing
Gambrel roofs
Glazed skylights on the streetside
Inconsistent roofing materials visible from the exterior of the property, except approved accent
materials
Mansard roofs
OC, Com CD70:45
Hir,
Gable
Shed Discoumeed)
Mat (prohibited)
Gambrel (prohibited)
Mansud!Prohibited
(3) Prohibited.
Low Slope
Under 28°
(6:12 slope)
Avenge Slope
285'
(6:12-1:1)
j\\
`Steep Slope
Over 45°
(1:1 slope)
Asphalt shingles except on existing polo cottages and homes with existing asphalt or wood
shingles
Bright, unnaturalistic-looking roof material
Flat roofs visible over ten percent of total roof area, except when used at peaks to reduce roof
massing
Gambrel roofs
Glazed skylights on the streetside
Inconsistent roofing materials visible from the exterior of the property, except approved accent
materials
Mansard roofs
OC, Com CD70:45
§ 70-99 GULF STREAM CODE
Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory
structures)
Non-earthtone colors (except white), for example: blue, peach, pink, teal or yellow
Primary color tiles and shingles
Roll tile and similar tile styles in all districts except Place An Soleil
S -Tile in all districts except Place An Soleil
Solar panels on the streetside
Unnecessarily complex or monolithic roof design
All white tile other than flat cement tile
(Ord. No. 00-1, § 36, 3-10-00; Ord. No. 03-9, § 2, 10-10-03)
Sec. 70-100. Roof and eave heights.
(a) Generally.
(1) The height and number of eave lines and the overall height of a structure play an important role
in establishing visual continuity with other structures on the street and maintaining an
appropriate residential/human scale. Most structures in the town are characterized by simple
roof designs with low to medium eave heights and roof heights. This type of design emphasizes
the horizontal dimension of the structure while minimizing the vertical dimension.
(2) Roof height is measured from the top of the first finished floor to the highest exterior point on the
roof. Eave height is measured from the top of the first finished floor to the top of the roof beam
at the end of the beam (top of flashing). Different save heights establish different eave lines. Two
or more separate roof areas with the same eave height are considered to have the same eave line.
(3) Roof features can provide appropriate design articulation to a roof area, but should be used
sparingly to avoid unnecessary and undesirable complexity. Roof features include, but are not
limited to, chimneys, cupolas, decorative towers, dormers, and small cut-outs and extensions.
Two or more dormers are considered to be one roof feature, as are two or more chimneys.
(4) Entry features, if used, should provide a sense of arrival to visitors, yet should not overpower
them or the remainder of the structure. The scale and proportion of entry features should be
consistent with the rest of the structure, varying just enough to provide a focal point to the front
of the house.
(b) One story homes.
(1) Preferred.
Eave heights: From eight feet to ten feet six inches (from eight feet to 12 feet for entry features)
Eave lines: Three or less
Roof features: Three or less visible per building side
Roof heights: 20 feet or less (24 feet or less for roof features)
(2) Discouraged.
Eave heights: Between ten feet six inches and 12 feet (between 12 and 14 feet for entry features)
Eave lines: Four
Roof features: Four visible per building side
Roof heights: Between 20 and 24 feet (between 24 and 28 feet for roof features)
OC, Corr. CD70:46
Tab 9
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
COMMISIONERS
WN LIAM F NOCH, JR. leayer
JOAN K ORTHWEIN, Vre Mayor
FRED a DEVITT m
W. GARRE77 DERING
MURIEL J. ANDERSON
May 30, 2012
Christopher F. O'Hare
2520 Avenue Au Soleil
Gulf Stream, Florida 33483
Dear Mr. O'Hare:
Telephone
(561) 276.5116
Fax
(561) 737-0186
Town Manager
WILLIAM H. THRASHER
Town Clark
RITA L TAYLOR
This is to confirm that at the Public Hearing held by the Board
of Adjustment on April 13, 2012 and continued to May 11, 2012,
your application for an Appeal of Final Action of the Planning and
Building Administrator.,that action being the denial of your request
to replace the existing roof with a metal roof rather than concrete
tile for which a permit had been issued, and further determining
that a variance application and it's approval would be necessary
in order to allow a metal roof, was considered.
The Town Commission, sitting as the Board of Adjustment, sustained
the opinion of the Building Official that a variance is required
in that the applicant has not satisfied that portion of the Code
which provides an exception to allow a metal roof because you have not
not allowed the Town to verify the engineering report you submitted,
with regard to the strength of the structure.
Very truly yours,
�e2i I
Rita L. Taylor U
Town Clerk
cc: Attny, Louis Roeder
100 SEA ROAD, GULF STREAM, FLORIDA 33483
Tab 10
IN THE CIRCUIT COURT OF THE 15' JUDICIAL DISTRICT, IN AND
FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Petitioner,
V.
Appellate Division (Civil)
Case No.: 2012CA01107
Town of Gulf Stream,
Respondent.
AMENDED
Petition for Writ of Certiorari from Decision of Town of Gulf Stream Board of
Adjustment made May 11, 2012 and rendered May 30, 2012
Denying Petitioner's Application for a revision to an existing Building Permit for a
replacement Metal Roof
Attorneys for Petitioner
Carter Law Firm, LLC
102 NE 2"d Street, Suite 179
Boca Raton, FL 33432
Tel: 561-368-9900
Johnna carterlawfirm.us
Louis Roeder
7414 Sparkling Lake Road
Orlando, FL32819
Tel: 407-352-4194
Fax.866-610-60990
lou(a)louroedercom
1
AMENDED PETITION FOR WRIT OF CERTIORARI
The Petitioner, CHRISTOPHER F. O'HARE ("O'Hare") respectfully
petitions this Court for a Writ of Certiorari to review the Decision of the Board
of Adjustment of the Town of Gulf Stream ("Gulf Stream"), denying Petitioner
the right to apply for a revision to the existing residential Building Permit
allowing for the replacement of a tile roof with a metal roof.
BASIS FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a Writ of Certiorari pursuant to the Gulf
Stream Code of Ordinances, Section 66-174(10) and under Rule 9.030(c)(3) of
the Florida Rules of Appellate Procedure.
STANDARD OF REVIEW
Where a party is entitled as a matter of right to seek review in the circuit
court from an administrative action, the circuit court must determine (1)
whether procedural due process was accorded; (2) whether the essential
requirements of the law have been observed; and (3) whether the administrative
findings and judgment are supported by competent substantial evidence. See
City of Deerfield Beach v. Vaillant, 419, So. 2d 624 (Fla. 1982); Haines City
Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995); Cherokee
Crushed Stone. Inc. v. City of Miramar, 421 So.2d 684 (Fla. App. 4Dist.,
2
1982). As set forth in further detail below, all three elements are present in this
instance.
First, the lower Tribunal's action in denying O'Hare's permit application
resulted from an impermissible act of legislative power in violation of the
essential requirements of law. Additionally Gulf Stream's unlawful "legislative
act" violated O'Hare's procedural due process rights.
Second, in denying O'Hare's application, Gulf Stream refused to accept
the plain meaning of its own ordinance. Instead, because of some unspecified
suspicions regarding O'Hare's interest in placing a metal roof on his home, it
determined that it was necessary to impose a new and unwritten condition on
O'Hare's permit application.
Third, despite allegations by Gulf Stream representatives of "suspicious
conduct" by O'Hare, there is an absence of competent evidence to support such
a finding. Accordingly there were no finding of facts made to support Gulf
Stream's denial of O'Hare's right to obtain a metal roof permit.
To the contrary, there is substantial competent evidence found in the
record to support findings that (1) O'Hare was wrongfully denied the right to
apply for a metal roof permit; (2) despite being denied the right to apply,
O'Hare fully satisfied Gulf Stream's requirements for a metal roof; and (3)
3
O'Hare is entitled to the issuance of a re -roofing permit allowing him to install
a metal roof on his existing residence.
STATEMENT OF THE FACTS
1. On August 29, 2011, O'Hare submits a "ROOF/RE-ROOF PERMIT
APPLICATION" to Gulf Stream for a replacement roof on the single family
residence to which he was making improvements. The approved roofing
material was concrete tile which was similar to the existing tile on the roof at
the time the re -roof permit was applied for.
2. The Re -Roofing Permit ("Permit") was issued on or about the day it was
applied for. It contained no expiration date although it required that work be
commenced within 180 days or it would expire.
3. After the existing roof tile had been removed in preparation for the roof
installation, O'Hare became concerned that the underlying structure of the
building may not be able to safely support a concrete tile roof.
4. On November 15, 2011, O'Hare's agent, a representative of RoofTec, the
roofing contractor, met with William H. Thrasher ("Thrasher"), Gulf Stream
Planning and Building Department Administrator also Town Manager, to
determine the appropriate procedure for modifying the Permit to allow for the
installation of metal roofing materials in lieu of the concrete tile material that
had been approved.
4
5. On November 15, 2011, Thrasher, acting as the Planning and Building
Department ("Building Department") Administrator ("Administrator"),
responded to the inquiry by O'Hare's agent by stating that "No metal roofs are
permitted in Gulf Stream, period".
6. Prior to the November 15, 2011 meeting between Thrasher and O'Hare's
roofer, O'Hare learned, contrary to Thrasher's representation, that Gulf
Stream's building code did in fact allow for the installation of metal roofs on
single family homes. While there is a general prohibition of metal roofs
contained in Section 70-99 (3) of Gulf Stream's building code, this is pre-
empted by an exception contained in Section 70-187 (2) of the code.
7. To determine whether he would qualify for a Section 70-187 (2)
exception, O'Hare retained Terrence E. Lunn, a licensed professional engineer
to inspect the existing structure on December 13, 2011. On December 14, 2011
Lunn provided O'Hare with a signed and sealed Engineering Certification
("Certification") which concluded that the subject structure would not support a
concrete tile roof.
8. On February 21, 2012 O'Hare provided Thrasher with a copy of the
Certification and expressed his intention to apply for a change to the Permit
pursuant to Section 70-187 (2).
9. On March 6, 2012 Thrasher, the Town Manager, acting as Administrator,
issued an administrative decision (in the form of a letter) informing O'Hare that
5
in order to receive approval to install a metal roof, he would have to obtain a
variance as provided for in Gulf Stream's Land Use Code (Chapter 66 of the
Gulf Stream Code of Ordinances).
10. O'Hare appealed the March 6, 2012 administrative decision to the Board
of Adjustment ("Board") of the Town of Gulf Stream. A public hearing on the
appeal was commenced on April 13, 2012 and continued on May 11, 2012. On
May 11, 2012 the Board orally announced its denial of O'Hare's appeal.
11. On May 30, 2012 the Board issued its Notice of Final Action, sustaining
the opinion of the Administrator and requiring that O'Hare obtain a zoning
variance before proceeding with the installation of a metal roof.
RELIEF SOUGHT
The Petitioner is seeking a determination that in denying his right to
apply for a building permit to install a replacement metal roof on his residence,
Gulf Stream exceeded its lawful authority and violated O'Hare's property
rights. Based upon such a determination, Petitioner is requesting this court to
reverse the decision of the Gulf Stream Board of Adjustment and remand this
matter to Gulf Stream with the directive that a building permit forthwith be
issued to allow the construction of a metal roof on O'Hare's residential
structure.
Z
ARGUMENT
When all sections of the Gulf Stream Code of Ordinances are read
together as it relates to the issue of whether a home owner can re -roof an
existing single family structure with metal roofing materials, it is clear that
(when factually applicable) Section 70-187 (2) controls. In fact this is
irrefutable as evidenced by the admissions of Gulf Stream's attorney, John
Randolph, who made such statements at the first hearing of the Board of
Adjustment conducted April 13, 2012. See pages 32 to 33 of the transcript.
While metal roofs are generally prohibited in the Town of Gulf Stream,
the unambiguous language of Section 70-187(2) states that they may be
approved in "instances of re -roofing of existing structures based upon an
engineer's certification that the existing structure will not support a tile roof'.
In this case O'Hare initially intended to re -roof his existing structure with
concrete tiles. He appropriately applied for and was granted a permit that,
among other things, enabled him to remove the existing roof and prepare the
structure for installation of concrete tiles.
Approximately three (3) months after the permit was issued following
removal of the existing materials and examination of the underlying structure,
O'Hare became concerned that the roof may not be capable of safely carrying
7
the weight of concrete tiles. Accordingly, he requested that his roofing
contractor investigate the option of a much lighter metal roof. Upon inquiry to
the Gulfstream Planning & Building Administrator, an agent for the roofing
contractor was told categorically that metal roofs were not allowed in Gulf
Stream and essentially that "O'Hare need not apply". No mention was made of
the exception contained in 70-187 (2) by Gulf Stream's building department
officials.
After learning of the Sec. 70-187(2) exception on his own, O'Hare
obtained an Engineer's Certification stating that the existing structure could not
support a concrete tile roof and presented this to the Administrator. After the
Certification was submitted, the Administrator determined that O'Hare should
not be allowed the opportunity to apply for a revised roof permit for a metal
roof. (See March 6, 2012 letter -decision by Thrasher) This was based on
Thrasher's interpretation of the code, which he said required O'Hare to obtain a
zoning Variance pursuant to Gulf Stream's Land Use Ordinance which is
codified in Chapter 66 of its Code of Ordinances. (See March 6, 2012 decision
letter)
While judicial deference should be given to an agency's interpretation of
its own rules, this deference ceases when the agency's construction clearly
contradicts the unambiguous language of the rule. Kearse v. Department of
R
Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985). The
instant case has facts similar to those in Woodley v. Department of Health and
Rehabilitative Services, Dist. 3, (Fla. App. 1 Dist., 1987). In Woodley, the First
District Court of Appeal reversed an agency's denial of a permit due to the
agency adding an additional requirement to the unambiguous language of its
own rule which it was required to follow.
As in Woodley, it is improper for the Building Department to effectively
amend its own rules by inserting a new and unwritten provision into the
building code it is obligated to follow. To allow this would be tantamount to
permitting an administrative body to legislate. In the case at hand, Thrasher's
decision must be overturned since it denied O'Hare his right to procedural due
process and is a clear departure from the essential requirements of the law.
The only subject of the public hearings below was the review of
Thrasher's denial of O'Hare's entitlement to apply for a metal re -roofing
permit. The legal sufficiency of the Certification was never called into question
by the Administrator prior to the Administrative Appeal. As such there was no
issue before the Board on this appeal that concerned the reliability of the
Certification.
Nonetheless the Board primarily focused on this non -issue and arguably
9
became fixated on concerns about the reliability of the Certification. While
never clearly articulated, it is evident from statements made at the Hearings that
the Board and the Administrator have suspicions that there is something
dubious about O'Hare's intentions of installing a metal roof and that the
Engineering Certification he submitted is somehow tainted or unreliable.
For these reasons the Board perceived that the Department possessed
inherent authority to require an independent review and "report" from the
Town's engineer before it could accept a permit application from O'Hare. It is
indisputable that the Board's decision to affirm the Administrator's decision
was the result of its singular focus and debate on this non -issue. (See page 33
May 11, 2012 hearing) Confusion was added to this debate by members of the
Board who mischaracterized the Certification requirement of 70-187 (2) as
calling for an engineering "report".
Again, questions of reliability and/or verification of the Certification
were not issues to be considered in the Appeal. Even if these issues were
relevant to the Board's decision, there is an absence of substantial competent
evidence in the record to show cause why O'Hare's Certification should not be
accepted by the Department.
By contrasting Thrasher's March 6'h administrative ruling with the May
10
30°i appellate decision of the Board, it is obvious that the Town of Gulf Stream
failed to comply with the essential requirements of the law, including its own
legislative enactments when considering O'Hare's request to re -roof his
residence with metal materials:
"A variance application would be required [in connection with
O'Hare's request for a modification of his existing building permit]
to allow the use of metal roof materials." March 6, 2012
administrative ruling of Planning and Building Department.
"The Town Commission, sitting as the Board of Adjustment,
sustained the opinion of the Building Official that a variance is
required in that the applicant has not satisfied that portion of the
Code which provides an exception to allow a metal roof because [the
applicant has] not allowed the Town to verify the engineering report
[it] submitted, with regard to the strength of the structure." May 30,
2012 decision of Board ofAdjustment.
Even if sufficiency and/or legitimacy of the subject Certification was an
issue before the Board, which it was not, there is no evidence to suggest that
the Certification did not satisfy Gulf Stream's own statutory requirements for
obtaining permission to install a metal roof. Clearly O'Hare's procedural due
process rights have been violated by the Town of Gulf Stream.
The factually correct, although legally invalid reason that the
Administrator denied O'Hare the right to obtain a metal re -roofing permit, is
11
that the Town of Gulf Stream has a bias against metal roofs and does not wish
to see them on homes inside its borders. (See page 17, line 21 of April 13, 2012
hearing) which reinforces Thrasher's November 15, 2011 declaration "no metal
roofs in Gulf Stream, period." In Gulf Stream's attempt to legally justify the
unlawful imposition of this bias against O'Hare, both the Administrator and
several Board Members made the following curious statements on the record
which illustrate its eagerness and creativity to thwart O'Hare's right to a metal
roof:
"It appears obvious to me that the metal roofs are not desired, and it
is not something that, on a single-family home, that the residents
want to have appearing."
Seepage 17 of April 13`r' Hearing -Thrasher.
"Just to say that because they provided this document (engineer's
certification) and because the code says it should prevail, it should
have some.... the town should have some voice in what.... their
engineers, their experts might say".
See page 18 of April 13`r' Hearing -Thrasher.
"And again, going back to the intent of the manual, one of our major
12
items was to prohibit metal roofs."
Seepage 23 of May 11'x' Hearing -Board Member Fred B. Devitt.
"I believe under the circumstance there's a variance required,
because [there's] so much question with your engineers report.
See Page 26 of April 13`h Hearing -Board Member Joan K Ortwein.
O'Hare does not dispute Gulf Stream's right to be biased against metal
roofs. It is recognized that Gulf Stream possesses the power to legislate and
adopt provisions in its Code of Ordinances that allow it to implement such
biases.
O'Hare simply requested that the Town of Gulf Stream lawfully apply
the section of its "existing" building code dealing with residential re -roofing
according to its plain and unambiguous terms so that he could complete the
installation of a roof that is safe for him and his family. Should Gulf Stream
later wish to amend its code it must do so in accordance with constitutional and
legal principles and constraints and not by administrative action.
WHEREFORE, die Petitioner respectfully requests this Court exercise
jurisdiction and grant a Writ of Certiorari quashing the decision of the Board of
Adjustment of the Town of Gulf Stream and determining that Petitioner has satisfied
13
the requirements for the metal roof exception set forth in Section 70-187 (2) of Gulf
Stream's Code of Ordinances. Petitioner further requests that this matter be remanded
to the Town of Gulf Stream with instructions that it compel its Building Department
Administrator to forthwith take all appropriate action consistent with the Court's
decision.
Dated: June, 0 .
Respectfully submitted,
JCarter, Esq.
a-Cou13),d
el for Petitioner
Florida B r No. 460036
102 NE d Street, Suite 179
Boca Raton, FL 33432-3908
Telephone: (561) 368-9900
Facsimile: (561) 368-8499
iiT'Roeder, Esq.
Co -Coup el for Petitioner
Florida Br No. 0004316
7414 Sparkling Lake Road
Orlando, FL 32819
Telephone: (407) 352-4194
Facsimile: (866) 610-6090
14
Tab 11
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL
CIRCUIT OF FLORIDA
IN AND FOR PALM BEACH COUNTY
APPELLATE DIVISION (CIVIL)
CASE NO.: 502012CA011078J30CXvIB
DIVISION: AY
CHRISTOPHER O'HARE,
Petitioner,
V.
TOWN OF GULF STREAM,
Respondent.
RESPONSE TO AMENDED PETITION FOR CERTIORARI
Respondent, TOWN OF GULF STREAM (the "Town"), responds to the
amended petition for writ of certiorari filed by petitioner, CHRISTOPHER
O'HARE ("Mr. O'Hare"), as directed by the order to show cause this Court issued
on September 10, 2012. The amended petition should be denied for the following
reasons:I
1 The following symbols are used: (A-_) = the appendix attached to Mr. O'Hare's
amended petition for writ of certiorari; (AA-__) = the appendix to this response.
All emphasis is supplied unless otherwise indicated.
1
I. JURISDICTION
This Court has certiorari jurisdiction to review the Town's decision that Mr.
O'Hare may not install a metal roof on his home until a variance to permit such
material has been applied for and approved. See Broward County v. G.B.V. Int'l,
Ltd., 787 So. 2d 838, 843 (Fla. 2001) (explaining that circuit courts have certiorari
jurisdiction to review quasi-judicial actions of local government agencies); Fla. R.
App. P. 9.030(c)(3). On certiorari review, this Court cannot reweigh the evidence.
Id. at 846. Rather, the Court is limited to determining: (1) whether the Town
accorded procedural due process; (2) whether the Town observed the essential
requirements of the law; and (3) whether competent substantial evidence supports
the Town's administrative findings and judgment. See, e.g., Broward County, 787
So. 2d at 843; Haines City Cmtv. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
Mr. O'Hare failed to establish any of these requirements for this Court to issue a
writ of certiorari.
I. STATEMENT OF THE CASE AND FACTS
Mr. O'Hare owns residential real property located at 2520 Avenue An
Soleil, Gulf Stream, Florida 33483 (the "Property) (A-3). This case concerns Mr.
O'Hare's request to replace the existing roof on the Property with a metal roof.
The Town of Gulf Stream Municipal Code of Ordinances (the "Code") generally
2
prohibits metal roofs, but provides that "certain metal roofs determined by the
town to be appropriate to the structure and to the neighborhood may be approved
only in instances of re -roofing of existing structures based upon an engineer's
certification that the existing structure will not support a tile roof' (A-2). There
has been a concrete tile roof on the Property for forty (40) years (A-6:6, 7, 8). The
Property was built in 1972 with a concrete roof, it was re -roofed in 1999 with
similar concrete material, and it has been able to support a concrete roof to date
(A-6:5).
On August 29, 2011, Mr. O'Hare submitted a re -roof permit application
("Permit Application') to the City of Delray Beach requesting a permit for a flat,
white, concrete tile roof (A-1). The Permit Application was approved on the same
day (A-1).
At some point between August 29, 2011 and November 15, 2011, Mr.
O'Hare decided he wanted a metal roof instead of a concrete tile roof. On
November 15, 2011, Mr. O'Hare's re -roofing contractor, Rooftec Corporation,
submitted a revision request to the Permit Application which states, "Customer
wants to change to metal roof' (AA -1).
Approximately one month after Mr. O'Hare submitted the revision to the
Permit Application, he retained Terrence E. Lunn, an engineer, to inspect the
3
Property and provide a certification that the Property could not support a concrete
tile roof (Am. Pet. at 5). On December 14, 2011, Mr. Lunn executed a letter
stating, "I certify to the best of my knowledge, belief, and professional
judgment that the referenced roof framing will not support a tile roof' (A-3). The
letter also states, "If I can be of further service please call." (Id.)
On February 21, 2012, Mr. O'Hare provided William Thrasher, the Town
Manager ("Mr. Thrasher"), with a copy of Mr. Lunn's certification (Am. Pet. at 5).
On March 6, 2012, Mr. Thrasher, acting as administrator, issued an administrative
decision informing Mr. O'Hare that in order to receive approval to install a metal
roof, he would have to obtain a variance as provided in the Town's Land Use
Code. Id
On March 31, 2012, Mr. O'Hare appealed this administrative decision to the
Board of Adjustment (the "Board") (A-5). The Town gave notice to Mr. O'Hare
that a public hearing on the appeal would take place on April 13, 2012 (AA -2).
The Town commenced the public hearing on April 13, 2012 which was continued
on May 11, 2012 (Am. Pet. at 6). The Town sent Mr. O'Hare and his counsel
copies of the Agenda in advance of each hearing (AA -3; AA -4).
The Town took steps to verify the engineer's report, but Mr. O'Hare refused
to provide backup for Mr. Lunn's certification and did not allow the Town to
!v
inspect the Property. Specifically, at the April 13, 2012 hearing, the Town Clerk
testified that she requested three dates and times that Mr. O'Hare would permit the
Town's engineer to enter his Property to conduct an independent inspection (A-
6:6). She also requested backup information to support Mr. Lunn's certification.
(Ld.) Mr. O'Hare refused both requests. (lj Counsel for Mr. O'Hare
acknowledged at the hearing that it is possible to get a variety of interpretations
from engineers regarding the ability of a structure to support a particular type of
roof (A-6:8).
At the April 13, 2012 hearing, a motion was made that if Mr. O'Hare
allowed the Town's engineer to inspect the Property and there was a conflict
between the certifications of Mr. Lunn and the Town's engineer, then the two
engineers would select a third engineer for a resolution (A-6:9; A-7:2). Again, Mr.
O'Hare's counsel communicated that Mr. O'Hare would not allow another
engineer to inspect the Property (A-7:2).
The April 13, 2012 hearing was continued on May 11, 2012 (A-7:2).
Neither Mr. O'Hare nor Mr. Lunn were made available at the May 11, 2012
hearing (A-7:6). The Town was given no opportunity to question them regarding
Mr. Lunn's certification or to test the accuracy of the statements being made by
5
Mr. O'Hare's counsel on Mr. O'Hare's behalf (Id.). The Board orally denied Mr.
O'Hare's appeal at the May 11, 2012 hearing (A-7:8).
On May 20, 2012, the Board issued its Notice of Final Action denying Mr.
O'Hare's appeal and sustaining "the opinion of the Building Official that a
variance is required in that the applicant has not satisfied that portion of the Code
which provides an exception to allow a metal roof because you have not allowed
the Town to verify the engineering report you submitted, with regard to the
strength of the structure" (A-8). Mr. O'Hare filed a petition for certiorari seeking
review and amended his petition to include an appendix.
H. ARGUMENT
CERTIORARI MUST BE DENIED WHERE THE TOWN
ACCORDED DUE PROCESS AND THE ESSENTIAL
REQUIREMENTS OF LAW, AND ITS FINDING THAT
MR. O'HARE DID NOT FALL WITHIN THE
EXCEPTION TO ALLOW A METAL ROOF IS
SUPPORTED BY COMPETENT, SUBSTANTIAL
EVIDENCE BECAUSE THE RECORD REFLECTS MR.
O'HARE REFUSED THE TOWN AN OPPORTUNITY
TO VERIFY HIS ENGINEER'S CERTIFICATION.
This Court has no jurisdiction to issue a writ of certiorari because the Town
afforded Mr. O'Hare due process, observed the essential requirements of law, and
its judgment that Mr. O'Hare did not satisfy an exception in the Code to allow a
metal roof because Mr. O'Hare refused the Town the opportunity to verify his
engineering certification was supported by competent, substantial evidence. See,
e.g., Broward County, 787 So. 2d at 843; Haines City, 658 So. 2d at 530.
A. The Town Properly Exercised its Discretion in Finding Mr. O'Hare Did
Not Fall within the Exception to Allow Metal Roofs and Is Entitled to
Deference.
The Town's interpretation of its own ordinance is entitled to deference. See
Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) (citing Verizon Fla.,
Inc.y. Jacobs 810 So. 2d 906, 908 (Fla. 2002) (stating that courts ordinarily defer
to a governmental body's interpretation of a statute or rule unless the interpretation
conflicts with the plain and ordinary meaning of the provision); Colonade Medical
Center. Inc. v. State Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th
DCA 2003) ("It is a well-established maxim that an agency's interpretation of its
own rules and regulations is entitled to considerable deference."). Here, the plain
language of the ordinance supports the Town's exercise of its discretion to deny
lvlr. O'Hare's request to install a metal roof.
The parties agree that the controlling ordinance is § 70-187(2) of the Code
(A-2). The Code generally prohibits metal roofs. However, footnote 1 of § 70-
187(2) contains the following language:
Certain metal roofs determined by the town to be
appropriate to the structure and to the neighborhood may
7
be approved only in instances of re -roofing of existing
structures based upon an engineer's certification that the
existing structure will not support a tile roof.
The word "may" is crucial to the analysis of this case. A basic rule in
constructing statutes or ordinances is that words are to be given their plain
meaning. Canal Ins. Co. v. Giesenschlag, 454 So. 2d 88, 89 (Fla. 2d DCA 1984).
The plain meaning of the ordinance grants the Town discretion to approve or not
approve a metal roof. The ordinance's permissive language places the Town under
no obligation to approve a metal roof, even if the homeowner provides an
engineer's certification. And even in instances of approval, the Town reserves the
right to determine the type of metal roof to be installed by the homeowner.
Here, Mr. O'Hare initially requested a permit for a concrete tile roof (A-1).
Three months later, Mr. O'Hare's contractor requested a change to the permit
application, this time to apply for a metal roof (AA -1). Mr. O'Hare's engineer,
Mr. Lunn, then provided a certification stating, "I certify to the best of my
knowledge, belief, and professional judgment that the referenced roof framing
,AU not support a file roof' (A-3). The subject Property has supported a concrete
tile roof for forty (40) years (A-6:6, 7, 8).
Given the Property's history of being supported by a concrete tile roof and
the certification's language leaving room for a different opinion, the Town decided
8
it wanted its engineer to inspect the Property before exercising its discretion in
favor of allowing the metal roof (A-6:5, 6; A-7:6). If the opinion of the Town's
engineer conflicted with that of Mr. Lunn, the Town proposed that the two
engineers could choose a third engineer for resolution (A-6:9; A-7:2). The Town
also requested backup for Mr. O'Hare's certification (A-6:6). Not only did Mr.
O'Hare refuse to allow the Town's engineer to inspect the Property, he also
refused to produce backup information for the certification Id.
No one disputes that Mr. O'Hare was given ample notice of the hearings.
He voluntarily chose not to appear and testify at either hearing and decided not to
produce his engineer for questioning (A-7:6). The Town observed the essential
requirements of the law in exercising its discretion within the plain meaning of its
ordinance. Lastly, competent substantial evidence supports the Town's denial of
Mr. O'Hare's request because the only evidence Mr. O'Hare presented to the
Town for its consideration of approval of a metal roof was a letter from Mr. Lunn
stating that to the best of his knowledge, belief, and professional judgment, the
Property could not support a metal roof. Mr. O'Hare provided no supporting
documentation for the letter, failed to produce his engineer for questioning, and
refused to allow the Town's engineer to inspect the Property. On the record, the
Town Attorney verified Mr. O'Hare's repeated refusals through questioning Mr.
D
O'Hare's counsel at the May 11, 2012 hearing (A-7:3-7). Under these
circumstances, it was entirely reasonable for the Town to exercise its discretion
under § 70-187(2) of the Code and deny Mr. O'Hare's request to install a metal
roof.
Assuming, arguendo, that Mr. O'Hare's interpretation of the ordinance is
permissible (which it is not), that is, the Town must accept Mr. Lunn's certification
at face value and allow Mr. O'Hare to install a metal roof, the Court should still
find in favor of the Town because its interpretation is certainly permissible and
reasonable. In State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 925 (Fla. 2d
DCA 2001), the Florida appellate court examined a United States Supreme Court
decision which addressed a court's review of an agency's interpretation of a statute
where more than one permissible interpretation existed. The court explained:
[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency's answer is based on a permissible
construction of the statute . . . The court need not
conclude that the agency construction was the only one it
permissively could have adopted to uphold the
construction, or even the reading the court would have
reached if the question initially had arisen in a judicial
proceeding.
Sun Gardens Citrus, 780 So. 2d at 925 (citing Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984). Under Chevron
10
once a court determines that the legislature has not directly addressed the issue, the
only question is whether the agency's interpretation of its own rule is a reasonable
one. Id. "If an agency's interpretation of its own regulation is merely one of
several reasonable alternatives, it must stand even though it may not appear as
reasonable as some other alternative." Id. The rules of construction used to
interpret state statutes are also used to interpret local ordinances. Smith v. State.
75 So. 3d 800, 802 (Fla. 5th DCA 2011).
Here, the ordinance's key word—"may" justifies the Town's reasonable
denial of Mr. O'Hare's request to install a metal roof under the circumstances. The
ordinance placed no obligation on the Town one way or the other to approve Mr.
O'Hare's request for a metal roof. The Town should ensure that a metal roof is
absolutely necessary because metal roofs are generally prohibited by the Code.
Indeed, Mr. O'Hare concedes "Gulf Stream's right to be biased against metal
roofs" (Am. Pet. at 13).
In his amended petition, Mr. O'Hare argues that Woodley presents facts
similar to the instant case (Am. Pet. at 9). However, Woodley is clearly
distinguishable because the rule in Woodley imposed a mandatory obligation on
the Department of Health and Rehabilitative Services ("Department") to take an
11
action which it failed to take. By contrast, the instant ordinance imposes no
mandatory obligations on the Town.
In the case Mr. O'Hare relies upon, Woodley applied for Aid to Families
with Dependent Children ("AFDC") benefits. Woodley v. Dept. of Health and
Rehab. Servs. 505 So. 2d 676, 677 (Fla. 1st DCA 1987). At an initial interview,
Woodley was asked to provide verification that she had applied for workers'
compensation benefits by a certain date. Id. Despite multiple efforts to speak with
her employer, the employer failed to provide this verification. Id. Woodley
contacted the Department eligibility specialist on more than one occasion to inform
her that Woodley was unable to obtain verification from her employer. Id. The
eligibility specialist told Woodley to keep trying and to request an extension of
time if she could not obtain the verification. Id. Woodley did not famish the
employer verification or request an extension of time, and the Department denied
her application. Id.
A Department rule provided as follows:
If documentation or verification is not provided within
the time limits allowed, the assistance group must be
determined ineligible for assistance. However, if the
employed person reports to the eligibility specialist prior
to the deadline date that he/she is unable to secure
required documentation or verification, a policy
12
exemption request will be submitted to the District
Economic Services Program offices for a decision.
Id. at 678. The eligibility specialist never requested a policy exception. The
Woodley court explained that the rule "unequivocally requires" the eligibility
specialist to request a policy exception under the circumstances presented. Id.
Accordingly, it reversed the denial of AFDC benefits. Id.
Here, the ordinance provides that certain metal roofs "may" be approved by
the Town. It is devoid of mandatory language. Therefore, Woodley is
distinguishable, and the Town properly exercised its discretion under the
circumstances.
Mr. O'Hare also contends that "questions of reliability and/or verification of
the Certification were not issues to be considered in the Appeal" (Am. Pet. at 10).
This statement ignores the plain meaning of the ordinance granting the Town
discretion to approve or not approve a metal roof—an exception to the Town's
general prohibition against metal roofs. Because the Town has discretion, it is
entirely reasonable for the Town to verify Mr. O'Hare's engineer certification,
especially given that the structure has supported a concrete tile roof for forty (40)
years (A-6:6, 7, 8). In other words, the Town's reasonable request to verify the
certification emanates from the discretion the ordinance grants it. The two go hand
13
in hand. It follows logically that the issue of verifying the certification was
discussed at both hearings (A-6:5-9; A-7:2-8). To say that verification of the
certification was not an issue before the Board is simply incorrect.
The Town accorded procedural due process to Mr. O'Hare at both hearings
at which he chose not to appear personally, but to send his counsel only, and not to
produce his engineer. The Town observed the essential requirements of the law in
exercising its judgment and discretion within the plain, permissive meaning of the
ordinance. The Town Attorney questioned Mr. O'Hare's counsel on the record
and confirmed the following refusals by Mr. O'Hare: (1) to produce backup
information for his engineer's report; (2) to appear personally at the hearings; (3)
to produce his engineer at the hearings; and (4) to allow the Town's engineer to
inspect the Property, with the Town's engineer and Mr. Lunn selecting a third
engineer to inspect the Property and render an opinion for resolution in case of
conflict. Therefore, substantial, competent evidence supports the Town's exercise
of its discretion in finding that Mr. O'Hare did not fall within the exception in
footnote 1 of § 70-187(2) and requiring him to apply for a variance to install a
metal roof. This Court should deny certiorari.
14
M. CONCLUSION
This Court should deny Mr. O'Hare's amended petition for writ of certiorari.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
famished by email and United States mail to JOHN E. CARTER, Esquire, 102
N.E. 2nd Street, Suite 179, Boca Raton, Florida 33432-3908
(john@carterlawfirm.us); and to LOUIS ROEDER, Esquire, 7414 Sparkling
Lake Road, Orlando, Florida 32819 (lou@louroeder.com), this � day of
October, 2012.
Jones, Foster, Johnston & Stubbs, P.A.
Attorneys for Town of Gulf Stream
505 South Flagler Drive, Suite 1100
Post Office Box 3475
West Palm Beach, FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
By.
An C. Randolph
Florida Bar No. 129000
jrandolph@jonesfoster.com
Stephanie Eassa Rapp
Florida Bar No. 0060319
srapp@jonesfoster.com
CERTIFICATE OF FONT
Respondent's Response to Amended Petition for Writ of Certiorari has been
typed using 14 -point Times New Roman font.
By: %ltiQ F -/ _ w
Step ami�e Eassa Rapp
Florida Bar No. 0060319
pA=s\13147\00009\pId\1 ck2377.do
15
Document Tab AA
City of Delray Beach Revision Request
Town of Gulf Stream's Notice of Application for Appeal
of Final Action of Planning and Building
Administrator 2
Transmission Report Confirmations of Agenda for
April 13, 2012 Hearing Sent to Mr. O'Hare and
Attorney Roeder
Transmission Report Confirmations of Agenda for
May 11, 2012 Continued Hearing Sent to
Mr. O'Hare and Attorney Roeder 4
1
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CITY OF DELRAY BEACH
REVISION REQUEST
Date: PermltNumber.
i y
Addrzas Where Work Is Being Done (to include unit or bay numbar): ��,LUS Il�ro tl iu
APPLICANT NAME:oo-Ft�.0 li f -l. iDfYa—h Vv-\ Phone: I
Fak, (
Ccnteot Person: �t G•(Lr Cel[ Phon1ed: ( ) _
ADDED CONSTRUCTION COST FOR THIS �C�H7ANGE: Sft17
EXPLAIN REVISION: l-mS U v-'7 I. oj'' is � l C-�L q, ��.•1�L, rOO{'•
NOTE To avoid delay. the revision needs to be clear on the (2) drawings submitted. The Plan
Reviewers may need the job site plans.
I understand a fee may be chargedin accordance vbth the City of Delray Beach LDR 2.4.21. The fee for a revision
is $75.00 for the first sheet, and $1.00 for each additional revised sheet. For ADDED CONSTRUCTION COST, the
fee will ba based on the Building Permit Fees,
sIGNEDt�
OFFICE USE ONLY
ROUTING: FEES:
PAITi DEQ APPROVED BY/DATE HEVISION FE:
ADDED VALUE PERMIT FEE
OTHER FEES AS APPLICABLE:
Parke $
Pubtlo BId3e. S _
Schools $
Radon $
DPR $
Other $
PLAN REVIEWER;
DATE: TOTAL FEES DUE: S'
Rvsd SM0
2
561-737-0168 Line 10:00:24 a.m. 10-05-2012 216
NOTICE OF APPLICATION FOR APPEAL OF FINAL ACTION OF
PLANNING & BUILDING ADMINISTRATOR
NOTICE IS HEREBY GIVEN that the Town Commission, sitting as
the Board of Adjustment of the Town of Gulf Stream, will hold a
Public Hearing on Friday, April 13, 2012 at 9:00 A.M. in the
Commission Chambers of the Town Hall, 100 Sea Road, Gulf Stream,
Florida, at which the following will be considered:
An application submitted by Christopher F. O'Hare, owner of
property located at 2520 Avenue Au Soleil, legally described
as Lot 36 Place Au Soleil Subdivision, Gulf Stream, Florida,
for the following:
APPEAL OF ADMINISTRATIVE DECISION to deny the installation
of a metal roof until such time as a variance to permit
such material has been applied for and approved for the
dwelling at the location stated herein.
The Town Commission, sitting as the Board of Adjustment,
shall make a final decision regarding the subject application at
the meeting noticed above. The meeting may be adjourned from time
to time and place to place as may be necessary to hear all parties
and evidence.
The complete application materials are on file in the Office
of the Town Clerk located at 100 Sea Road, Gulf Stream, Florida
33483, and may be reviewed during regular business hours, which
generally include non -holiday weekdays from 9:00 A.M. to 4:00 P.M.
ALL PARTIES INTERESTED IN THESE MATTERS may appear before the
Town Commission of the Town of Gulf Stream at the time and place
aforesaid and be heard.
SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY
THE TOWN COMMISSION, SITTING AS THE BOARD OF ADJUSTMENT, WITH
RESPECT TO ANY MATTER CONSIDERED AT THE PUBLIC HEARING, SAID PARTY
WILL NEED A RECORD OF THE PROCEEDINGS, AND FOR SUCH PURPOSE, MAY
NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE,
WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE
APPEAL IS TO BE BASED. 286.0105, F.S.S.
Dated: March 30, 2012 TOWN OF GULF STREAM, FLORIDA
2 _ice
Rita L. Taylor, ToMi Clerk
3
Transmission Report
DateMme 04-09-2012 12:13:33 p.m. Transmit Header Text
Local ID 1 551-737-0188 Local Name i Une 1
This document: confirmed
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Tab 12
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER O'HARE, APPELLATE DIVISION (CIVIL): "AY"
CASE NO. 502012CA011078)000{MB
Petitioner,
TOWN OF GULF STREAM,
Respondent.
Opinion filed: JAN 2 8 2013
Petition for Writ of Certiorari from Town of Gulf Stream Board of Adjustment
For Petitioner: John Carter, ESq.
102 NE Second St., Ste, 179
Boca Raton, FL 33432
Louis Roeder, Esq.
7414 Sparkling Lake Rd.
Orlando, FL 32819
For Respondent: John C. Randolph, Esq.
505 South Flagler Dr., Ste. 1100
West Palm Beach, FL .33401
PER CURIAM.
The Petition for Writ of Certiorari is DENIED.
SASSER, KELLEY, and BRUNSON, JJ., concur.
Tab 13
TOWN OF GULF STREAM
COMMISSION MEETING AND PUBLIC HEARING
Gulf Stream, Florida
Friday, April 13, 2012
9:30 a.m.
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PRESENT:
Mayor William F. Koch, Jr.
Vice Mayor Joan K. Orthwein
Commissioner Muriel J. Anderson
Commissioner Fred B. Devitt, III
Commissioner W. Garrett Dering
John Randolph, Esquire, Town Attorney
Mr. William H. Thrasher, Town Manager
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THE CLERK: We have the Mayor's proclamation.
We are going to make May the 25th, 2012 as National
Missing Children's Day and the Mayor has executed
same.
MR. MAYOR: Item seven, what do we have?
THE CLERK: This is a public hearing. Like to
ask any of those who intend to speak during this
public hearing portion to please stand and be sworn.
Swear to tell the truth, the whole truth, and
nothing but the truth so help you God?
(Unidentified individuals sworn.)
THE CLERK: Okay. We have appeal final action
of planning and building administrator, an
application submitted by Christopher O'Hare, owner
of the property located at 2520 Avenue Au Soleil,
legally described as Lot 36 Place Au Soleil
subdivision, Gulf Stream, Florida, for the
following, appeal of administrative decision of a
metal roof until such time as a variance to permit
such material has been applied for and approved for
the dwelling at the location stated herein.
Has there been any ex -parte communication on
this matter? Let the record show there was none.
Who is presenting?
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MR. ROEDER: Good morning. My name is Lou
Roeder. I'm here representing Mr. O'Hare. I didn't
know whether -- I probably need to ask for
clarification. I didn't know whether it was better
to follow Mr. Thrasher's presentation, are you going
to have a presentation or should I present the
issue?
MR. THRASHER: Mr. Roeder, I have provided the
commission with my report. And I think that they
are now ready to hear from you. They may have
questions of me after you have completed.
MR. RANDOLPH: Do you have his report,
Mr. Roeder?
MR. ROEDER: Yes, I do. Good morning,
Mr. Mayor, Commissioners, Mr. Thrasher,
Mr. Randolph. Again, I'm here representing
Mr. O'Hare in this matter. And we're here to appeal
the decision by the town manager, Mr. Thrasher, that
a variance is necessary. And I'd like to just
follow --
MR. MAYOR: Can you speak in the microphone?
MR. ROEDER: I'd like to just -- if you have
his report in front of you, I also have a handout to
give you. We have our field package, but then we
also received Monday, Mr. Thrasher's position on
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this and what his reasoning was for requiring the
variance. And we have prepared a response I'd like
to just follow through with you in brief and if Rita
can hand that out.
Now, I'm going to ask you jump around in my
presentation, so please bear with me and please,
not -- it took me days to get accustomed to the
variance code numbers. So if I go through these
here, I might be spitting them out rather fast.
If you have any problem with them, if there's
anything confusing, I was confused for several days,
so please stop me and I'll try to clarify. Again,
we'd like to go and address Mr. Thrasher's argument
for a variance.
We break it down in three parts. We have those
listed there for you. The first part has to do with
him quoting 66.1, his definition of a variance. The
definition is that a variance shall mean a deviation
from the district requirements of this chapter. We
agree. The only problem is, we think he's wrong.
We don't think our request for a metal roof
deviates from the requirements of the chapter. So
now, in order for us to show you this, we'd like to
skip to page three very quickly, because, the whole
part there in part three on page three, that's very
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important. That's going to be referred to several
times here in my response.
Mr. Thrasher states that section 70-99(3) for
roof design, slopes and materials, this is located
in Article 5. This is for town wide standards in
the manual. Article 5 is town wide standards.
Article 6 is district standards. That means it's
very specific to each district.
In that section, there's a prohibition, that
states metal roofs are prohibited except unpainted
copper when used as a decorative accent or minor
structures. Then he goes on to quote section
70-187(2). There again, that's in the district
standards, and it has prohibited metal roofs, but
there's a footnote. That's very important here. We
need to note this.
There's a footnote there that says, certain
metal roofs determined by the town to be appropriate
to the structure of the neighborhood may be approved
only in instances of reroofing of existing
structures based upon engineer certification that an
existing structure will not support a tile roof.
Some clarifications in order here. To
paraphrase, 187(2) basically states two conditions;
for us the client, and one for the town. For us it
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has to be a reroofing situation. Two, we need a
certification from an engineer.
On the town's part, the town needs to provide
us what metal roofs are then appropriate to the
structure and the neighborhood. We asked for that
back on November 15th. We asked the town, we were
told no metal roofs, period. We think it's clear
here in 70-187(2) metal roofs are allowed under
certain conditions.
And we'd like to point out that if the town
hasn't figured out what metal roofs there are, we
have provided what might be acceptable to you. We
have provided in the package to you what we consider
to be a sample of what we are proposing for a metal
roof. It happens to be by Englert. It's one of the
highest quality, highest gauge metal roofs around
for residential roofs. Don't think you'll find a
better quality, higher priced roof on the market.
Now I'd like you to go to part one again and
we'll continue. We wondered why -- you can see the
disparity there. In one section, Article 5, it
says, no metal roofs. In Article 6, it says, metal
roofs under certain conditions. We were wondering
why somebody would put that in there. Somebody in
their infinite wisdom chose to put this in there.
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There must have been a reason.
We called Marty Minor, the senior project
planner with Urban Design Studios, the people who
put together your manual several years ago before
the city approved it. And we asked them
specifically, if we wanted to take part of this
section in order to put up a metal roof, would a
variance be required? He said, no. In fact, he
specifically said, this is your out to a prohibition
of a metal roof.
Part 2, Mr. Thrasher also quotes section
70-4(c)(4) where it talks about how to use a manual.
And in there it states, prohibitive items are design
elements that do not maintain the desired character
or quality of the zoning district within which they
are located, and, that's my emphasis, are not
permitted under current codes and regulations.
Mr. Thrasher states that no metal roofs on any
single-family homes in Gulf Stream, there are none
because they do not maintain the desired character
and quality of the zoning districts. We can't find
anywhere in the manual where it states that. That's
an opinion, that's Mr. Thrasher's opinion. That's
not necessarily what the manual says.
In fact, probably don't even need to address
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this, because that section does have, and why I
emphasize the word and, not only does it have to not
maintain the desired character and quality of the
zoning district, but it also must be prohibited by
the code.
We maintain it's a clear reading of section
70-187(2) that metal roofs are allowed within the
code; therefore, they are not a prohibition.
Therefore, this section doesn't apply.
Even though there might not be any metal roofs
on any single family homes, there are no roofs on
several multifamily residential condominium
buildings. In fact, right here across the street,
Polo Ridge, there are metal roofs. Just down the
way at 4400 Ocean Boulevard, there's a two-story,
two exactly identical buildings, one with the
original concrete, white concrete tile and the other
one with a metal roof replacement. They're there
side by side so you can see how they look and how
they seem to be in conformity with one another. And
I doubt if any of the single family behind these two
properties would consider them to be detrimental to
their value.
Also, if you look into section 70-4, how to use
the manual, we'd like to quote, the manual states
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that the styles, which they identify as Gulfstream,
Bermuda and Mediterranean Revival are not mandatory,
but are indicative of the predominant style within
the community. I think that's important. These
styles and what's talked about in the manual is not
mandatory. There is basically a guide.
The real yardstick is in 70-187, excuse me,
70-187(2), when it states in the latter part of it,
the metal roof determined by the town to be
appropriate to the structure and the neighborhood,
which is something we tried to ask the town for back
on November 15th. We said, okay, we'd like a metal
roof, can you tell us what's appropriate. We were
told no metal roofs are allowed. If that's the
yardstick of what's appropriate to the neighborhood,
we supplied you with some pictures.
If you look past page four, you have the styles
map of the districts within the town. And we
circled there a place Au Soleil. And if you count
up the number of homes that are Bermuda, the number
that are Spanish -Mediterranean, the number of what's
called various other styles, 70 percent are
undetermined, there are various other styles.
Turn to the next page, you see -- we decided to
map out what are the prohibited roofs within the
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neighborhood. It specifically prohibited shingles
in Gulf Stream; specifically prohibited shakes, wood
shakes and also flat roofs.
Here we have a map showing all the residences
in that neighborhood. There's four of them which
have shingles, three of them which have shakes and
three of them are flat. In fact, on the next page,
you can see shingles. We actually took pictures of
the homes and put out their lot layouts and you have
under shingles, what's classified as A, that's right
across the street from Mr. O'Hare's residence.
And we also provided you with a map just to
show you what his roof pitches are on his house. We
don't propose to change those. We just plan to
replace it with a metal roof. Then Mr. Thrasher
goes on to talk -- this is important. He says that
even though the footnote could provide for a metal
roof, he admits that it could provide for a metal
roof, the variance would be acquired but still is
prohibited.
Again, our conversation with Mr. Minor, we
asked if we wanted to partake in this provision,
would a variance be required. His answer was no.
This is the man who works for the firm that put
together your manual.
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Also, Mr. Thrasher took the position that
70-99(3), since it was in the general section
applying to the whole town, that it was more
restrictive. And historically that seemed to
override the other district wide standards in
187(2).
Whenever there's a conflict, you always try to
look somewhere in the ordinance for a conflict
resolution. We found it. It was in the first page
of Article 6. It said, where the provisions of this
article is -- excuse me, I don't have my glasses.
I'm trying to read.
Where the provisions of this article conflict
with those of Article 5, the provisions of this
article shall prevail. I mean, it's not an option
there. There may be some historical precedent, but
the ordinance is clear, the code is clear. When
there's a conflict between 70-99(3) and there's a
conflict between 70-187(2), 70-187(2) is going to
prevail.
We think it's pretty clear a variance is not
required. We think we've shown pretty specific and
pretty overwhelming evidence of variances that are
required. We're respectfully requesting that you
overrule Mr. Thrasher's decision of his March 6th
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letter and allow us to proceed with a metal roof
permit.
Again, we provided samples for you, we're
bringing forth the highest quality metal roof,
highest gauge, white -- not shiny white, white
flat -- so it goes with all the other roofs in the
neighborhood, which are apparently white roofs.
And we respectfully ask you approve my client's
request for a metal roof.
MR. RANDOLPH: May I -- before we go forward
with Mr. Thrasher, may I ask Mr. Roeder a question?
MR. ROEDER: Sure.
MR. RANDOLPH: In response to your last
comment, can you direct me in the code to the
provision? I know you said you didn't have your
glasses, but you did say it was important. I want
to be on the same page with you in regard to the
provision that says where there's a conflict that
these provisions shall prevail over the conflict. I
think that's important.
MR. ROEDER: I thought it was in the package
that I gave the town in the application. I'm going
to see if it is because then each one of you would
have your own. It may not be. Yes, it is.
MR. RANDOLPH: It's in your package?
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MR. ROEDER: I gave everybody three or four
pages from Article 6, District Standards, the very
first page.
MR. RANDOLPH: Did you provide the pages in
your packet?
MS. ORTHWEIN: This one.
MR. RANDOLPH: This one?
NIR. ROEDER: District Standards, Section
70-186, paragraph B, it says introductory,
70-86 [sic] introductory paragraph into the article.
If you look at paragraph B, the very last sentence,
however, if the provisions of this article conflict
with those in Article 5, the provisions of this
article shall prevail. It's black and white.
MR. RANDOLPH: Thank you.
MR. ROEDER: Any other questions?
MR. MAYOR: Bill, do you want to --
MR. THRASHER: I'll make some comments. My
report, I hope, will be considered in this. I know
that he represents multifamily roofs in our town.
And there are multifamily residents or dwellings
that have metal roofs, but those were properties
that I believe he's referring to were recently
annexed in our codes and our town would not speak to
that issue.
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In regards to the differential between
predominant styles and other variants and that there
are shake and shingles, other types of materials,
the current code was adopted after the construction
of those homes.
And therefore, we would assume that when they
were constructed and the roofs were placed, that it
met the current code, but presently, when you come
to an entire reroof or a new structure, the present
dated code would be the determining factor.
I think that, in regards to the differential
between area wide standards and predominant styles,
there are sections in our code, area wide versus say
a Gulf Stream or a Mediterranean, but as the style
is determined, it has been always our practice that
the homes and the work must be in alignment with,
not only the predominant style section of the code,
but also area wide.
We think that area wide and predominant styles
are applicable in the appropriate instances to
exclude one or the other. It has not been our
practice. I mean, that's not how we have
administered the code.
The conversations about whether or not the
exclusion of the asterisk automatically provides for
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them the opportunity to have a -- the option to
immediately apply for a permit, I think is -- and is
still listed under the prohibited section of the
code, and I do believe that prohibited items do
require a variance.
We do not have any single-family homes that
have metal roofs. I don't know about in Au Soleil,
but we do not have metal roofs in the area or any
other district town wide where the code prevails
excluding the annexed area, there are no -- it might
include the annex there, there are no single-family
homes with a metal roof. To me that's an indication
to me that it's also prohibited.
The ability to just apply for a permit for a
metal roof because there's an asterisk, there is a
slippery slope, and I don't think it's appropriate
based on my interpretation of the code.
MR. ROEDER: If I might, excuse me, I didn't
know.
MR. THRASHER: I think that there is a conflict
in the code. Staff has looked at it. We feel that
the two sections of the code, even though they may
be in a position in different pages of the code,
section 70-99 and 70-187, we believe that there is a
definite conflict. And so --
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MR. MAYOR: The conflict in the code, I think
Mr. Randolph -- is there a conflict in the code?
MR. RANDOLPH: If I might just ask Bill a
question if he's finished with his presentation and
that is, how do you respond, Bill, to the provisions
set forth in 70-186 which says, however, where the
provisions of this article conflict with those in
Article 5, and Article 5 is the section that you
talk about that creates the prohibition, and that
says the provisions of this article shall prevail,
how does that fit in with your comment that there's
a conflict in the code.
MR. THRASHER: I'm not saying I disagree with
Mr. Roeder's interpretation of the code. What I am
saying is that, the mechanic or mechanics of how
this is to be evaluated should not only be an
instrument that is exclusively provided by the
applicant. There is no voice for the town in that
particular decision.
It appears obvious to me that the metal roofs
are not desired, and it is not something that, on a
single-family home, that the residents want to have
appearing. A single affidavit or engineering report
from the applicant seems inappropriate and there
should be an additional voice in that concern. Just
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to say that because they provided this document and
because the code says that it would prevail, it
should have some -- the town should have some voice
in what -- their engineers, their experts might say.
This particular home I think was built in 1972.
It had installed a concrete roof of some type. I
believe that it was reroofed in 1999 with the same
type, similar materials.
What has transpired from 1999 to date is
certainly outside my expertise, but it was able to
support a concrete roof up until the permit
application was basically withdrawn by the
applicant. And we were told by the contractor that
the owner no longer wants a concrete roof, but
prefers a metal roof. There was no comment about
engineering report at that time.
MR. RANDOLPH: Mr. Mayor, it appears there's
two points being discussed in Bill's answer. His
second part of his answer related to whether or not
the town has to simply accept the engineer's
certification. That is another issue that I think
we should discuss separately from this, but the
first question before you is whether or not there's
a conflict in the code, which requires the applicant
to apply for a variance.
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And I think that the section that has been
pointed out by Mr. Roeder is very important under
70-186 where it says, the provisions of this article
conflict with those in Article 5, the provisions of
this article shall prevail.
So, you know, Bill's point is that he's looking
at section 70-99 which prohibits metal roofs, and
they're looking at 70-187(2), which also prohibits
metal roofs, but provides an exception in the event
they're able to have an engineer's certification
show that the structure does not support a tile
roof.
MR. MAYOR: Do we have a right to have our
engineer look at the structure, their roof to see?
MR. RANDOLPH: That goes to the second point.
I know, and this should come out through testimony.
I know the town has requested certain information
from the owner. And Rita, probably if you're going
to testify, you should be sworn as well.
THE CLERK: I swear.
MR. RANDOLPH: Do you swear or affirm the
testimony you're about to give is the truth, the
whole truth and nothing but the truth?
THE CLERK: I certainly do.
MR. RANDOLPH: Try to keep these two points
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separate though because the first one is whether
there is a conflict in the code to go for a
variance. There's an argument that's been made
that, one, that this section that they're applying
under is not in conflict because it specifically
states that that shall prevail on the point of the
town clerk.
And two, I think they're arguing that this
section is an exception to the code because the
section that they're traveling under has a
prohibition. And it says, there is an exception to
the prohibition in the event you can show that the
structure won't support a tile roof.
The second question that you're on now relates
to the engineer's certification and whether or not
you're required to accept that engineer's
certification on its face or whether you can test
the engineer's certification by hiring your own
engineer. Rita, would you just testify as to what
you've requested of the owner in regard to your
being able to check the engineer's certification.
THE CLERK: Yes. We gave three different dates
and times that we had an engineer that was available
and we asked through the attorney for permission to
go in and let him do his inspection with the owner's
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approval. And we were told that the owner, in the
past, had been unwilling to allow anyone to go in
and that was the end of it.
MR. ROEDER: If I might, Mr. Thrasher makes a
number of points, but I would definitely admit to
what Rita's asking. Rita called and asked, one,
either for some data or backup information as to
what clarified the certifications; is that correct,
Rita? Or allowing the town's engineer to come in.
Our position was, we're appealing variance. It
was after we filed our appeal. Appeal is, like you
say, Mr. Randolph, there's two different points
going here. One is, is a variance required? We
don't think a variance is required.
Now, if we start looking to -- does the code
say, okay, you provide a certification which then
the town now can question? The code is very clear.
We have to provide an engineer's certification.
That was our position. We have done what the code
says and we're not talking about that issue really
right now.
We're talking about the variance, but if we are
going to start talking about it, we have done what
the code says, that's what we provided. Now,
Mr. Thrasher provides that the town doesn't have a
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position in this. They do under 187-2.
187-2 has two conditions that fall upon the
applicant to show we are reroofing. And that's why
it was put in here. Some of these homes, when you
reroof, you may find that what's underneath there is
not what you thought it would be.
You might recall, Broward County recently
adopted a large change to their building code that
requires all multifamily residential buildings
before a certain year be inspected, because they're
concerned about what happens to the buildings over
time. There's decay in the material, weakening,
damage because of hurricanes.
This building is 35 years old. When you're
talking about 40 years, we're getting close to that
limit, but Mr. Thrasher said the town doesn't have a
position. Our two positions, our two requirements,
reroofing, which we are, you have the barrel tile
and putting on a different roof.
Number two, we provided an engineer
certification. The town's position is, tell us
what's appropriate, what metal roof is appropriate.
Let me say here, the client wanted me to be
sure to say this, we are not stuck on a metal roof.
Mr. Thrasher says, the client wants a metal roof.
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The client wants what's good for the home. The
metal roof happens to be the lightest roof you can
put on. First it's metal, then shingle, then shake.
Then you go up to the barrel tile and concrete tile.
If you take the weight of a concrete tile roof,
in addition to what goes on a metal roof on a home,
on this home, based on the square footage of that
roof, it would be like putting 11 medium sized
sedans on that roof. That's the weight that a
concrete tile roof has.
People don't quite understand that there's that
much difference and after 35 years, in an
engineer's, opinion can't take it. The client is
not set on a metal roof. He just as soon have
shingle or shake, but shingle and shake are
absolutely prohibited. There's no little footnote
provision allowing for them to be put in the section
standards, the district standards within the code.
In the overall code, they're absolute.
The only one that has an allowance for a metal
roof or for any different roof is the metal roof.
So that's why he's applied for it. If you grant him
a shingle or a shake, he'd take it in a heartbeat.
He's out to put a roof on there that would
absolutely fit and be allowed within the weight
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restrictions and not be detrimental to he and his
family.
MR. RANDOLPH: It's my understanding,
therefore, that your client's position is that the
engineer's certification must be taken on its face
because of the way the ordinance is written and the
town must accept your engineer's certification.
MR. ROEDER: Unless you can show cause why you
wouldn't. If that's the case, then the code should
say, engineer's certification to be verified by the
town or engineer's certification with backup
information. An engineer takes a lot of
responsibility to provide that.
MR. RANDOLPH: I understand, but your
engineer's certification says, to the best of my
knowledge and belief and based upon my professional
opinion.
MR. ROEDER: Exactly.
MS. ORTHWEIN: I would think we could question
it. Forty years of having a concrete roof on the
home and all of a sudden it can't hold concrete. I
think we have a right to question why your engineer
says it can't hold it any more.
MS. ANDERSON: It's questionable how all of a
sudden it couldn't hold it.
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MR. ROEDER: You mean as far as a reroofing in
omm
MS. ANDERSON: Yeah.
MR. ROEDER: Maybe they didn't have an engineer
to take a look at it. So what happened, my client
stripped all the Sheetrock -- he has a permit for
re-Sheetrocking, there's a lot that was discovered
in that process. I don't know. I'm not acquainted
with it.
The idea is, he stripped it all off, talked to
the engineer and asked, can this hold concrete tile
roof? And the answer was no.
MR. MAYOR: Would your client object to us
having an engineer coming in?
MR. ROEDER: He has so far, and that's
because --
MR. MAYOR: So far, but under the circumstance,
we're trying to resolve this thing.
MR. ROEDER: I think again, as Mr. Randolph
says, there's two different issues. Right now we're
addressing the variance issue. Is there a
requirement for variance? We don't think there is.
And if there's not, we're --
MS. ORTHWEIN: I believe under the circumstance
there's a variance required, because of so much
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question with your engineer's report.
MR. ROEDER: I guess that's the question for
Mr. Randolph, the town can create a variance because
the town questions an engineer's report?
MR. RANDOLPH: I think the question -- yeah. I
think they can ask for a variance if it is not
proven that your engineer's certification is
correct. Because if you don't meet that standard,
which is set forth in the exception, then I think
even you would agree that you would need a variance
from the prohibition.
So I think the burden is on you to show that
you meet the exception. And I believe, quite
frankly, that the town does not have to take the --
with the number of engineers that you've heard
testify in court and the number of different
opinions that you've heard attorneys have from each
other, I think it's reasonable for the town to be
able to test that engineer's certification in order
to verify it.
I just think that's reasonable under the
circumstances, and I don't think it's a reasonable
interpretation of the code to mandate that the town
accept an engineer's certification without it having
the opportunity to test it.
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MR. ROEDER: So I hear two different things
here. Mr. Randolph saying that the town has a right
to question the engineer, but then I hear the
commissioner saying it's a -- variance is required.
Either a variance is or is not required. The
separate question is, whether the town then wants to
question the engineer. Correct me if I'm wrong, but
that's --
MR. RANDOLPH: I think they are two
different -- two separate issues. The way I'm
trying to tie that in as to what the commissioner
said is that, I think she's saying that she thinks
the variance is necessary in the event you haven't
met the exception.
And I think -- there's an argument that you
haven't met the exception if you don't allow the
town to test or verify your engineer's
certification, because then you won't follow it.
If we test it and the final determination is
that the roof can hold the structure can hold a tile
roof, then you'd have to get a variance from the
prohibition. But the first question really is, and
I think, you know, I think we have to resolve the
second question before a final determination can be
made as to whether you need a variance from the
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prohibition.
MR. ROEDER: I think we have one item on the
agenda that needs to be addressed in your challenge
the requirement for a variance, then if the town
wants to take the position, well, okay, variances
are required, but we don't think you've met the
conditions of this exception, then that's another
story.
But to sit there and create a variance, because
you don't think we -- don't think we've met the
conditions of the allowance seems to be adverse to
the code.
MS. ORTHWEIN: I don't think you've met the
conditions and I agree -- the conditions.
MR. RANDOLPH: Which ones?
MS. ORTHWEIN: The conditions of the variance
report. I don't think we can go on just this
engineering report because the house has had a roof
for 40 years.
I don't think we would be doing our due
diligence if we didn't question it.
MR. DEVITT: I served with a group of citizens
who drafted the design manual. So Urban Design, it
was made up of a group of citizens from the
community. One of the top items on our list of
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things to address were metal roofs, so I'm very
familiar with this provision.
I happen to also own at the time a house in the
area that had a cedar shake roof. And so, me and
several other people had that same condition. We're
worried that if we had to replace our roof, it would
not support the weight of a concrete tile roof.
That exception was built in for homes that had
that particular problem. You've given us a list of
pictures and addresses and other places that have
roofs that have that condition that are pretty clear
would not support the weight of a white tile roof.
That's why the exception is written into the manual.
From what I've heard today, I think you've got
to allow us to question your one sentence line from
your engineer that says it won't work based on the
history that there's been a white tile roof on that
house for 40 years.
MR. MAYOR: My feeling that the council wants
more information, wants the right to have his
engineer move forth, questions about it and we're
getting the answers for ourselves, is that --
MR. RANDOLPH: Let me ask a question first,
from a procedural standpoint.
This hearing today, of course, relates to an
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appeal between the applicant and the commission.
But I noted a lot of hands go up from the public,
and I wondered if at some time, Mr. Mayor, you want
to call on people from the public. Keeping in mind
that the issue is not whether you as a neighbor like
a metal roof or not.
The argument here is whether our code requires
a variance and whether or not we have the right to
go beyond the engineer's certification. But these
folks have shown up in response to a notice, so you
might allow them the opportunity to speak.
MS. ORTHWEIN: Is there anyone that wants to
speak about this?
MR. MAYOR: Some of them are here for something
else.
MS. ORTHWEIN: Do you have any comments to make
about this?
MR. RANDOLPH: I wanted that on the record.
MR. SLOAN: I'm Dana Sloan, architect with
Sloan and Sloan Architects in Delray Beach. I can
make one comment with regards to engineer's reports.
Over time the assigned values to the strength
of wood has gone down through no real change in the
wood, because of safety factors being changed, due
to increase paranoia, maybe from lawsuits, so you
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can get a variety of interpretations from engineers.
And the ones that are most paranoid or assign
the highest safety factor may give a much lower
strength to the roof, whereas, in reality and a
rational analysis it's plenty strong, so there is a
lot of variation in engineering.
MS. ORTHWEIN: Thank you. I agree with that.
MR. ROEDER: Following up on that, the code
since 1999 has been changed quite a bit because of
the hurricanes that have come through. The Miami
code has a lot of higher requirements, higher
standards have to be met by engineers. So one may
be appropriate, number two may be the increased
standards given the new code.
MR. MAYOR: We've been on this, Counsel.
MR. DERING: Would your client refuse to allow
the town to have an another engineer look at it?
MR. ROEDER: He has to date because there has
been a number of different issues.
MR. DERING: As of right now?
MR. ROEDER: As of right now.
MR. DERING: Right now, will he not allow that?
MR. ROEDER: As of now he has not.
MR. DERING: He will not.
MR. ROEDER: He has not. I speak from history.
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He'd like a decision on the variance. And then if
it goes beyond that, then there's a question on the
engineer.
MS. ORTHWEIN: How shall we proceed with this
because I think we should move on?
MR. RANDOLPH: I think there's two
alternatives. If Mr. Roeder is saying his client
will not allow the town to go beyond the face of the
engineer's report, I think you should simply make a
decision today as to whether or not he needs a
variance.
Alternatively, you could defer this item and
give the applicant an opportunity to indicate
whether or not they will allow the town to test the
engineer's report with the report of another
engineer.
At that time, you'd be able to, in the event
this engineer -- another engineer were to verify
that your engineer's report is correct, then this
could come back. And I think the answer is going to
be easy, because based upon what you've pointed out
in regard to the provision that says that, in the
event there's a conflict, that the provisions of
Chapter 70 shall prevail, and you can show that
you've met the requirements, I think my advice to
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the commission would be that there's not a conflict
and that you don't need a variance.
But I think you have to show first -- if you
don't show that you've met the requirement of the
engineer that the roof can't support a tile roof,
then the direct prohibition applies and then you
would clearly need a variance.
If, however, you can show that you've met that
requirement, then I think the weight of the
evidence, as I see it, shows that there's not a
conflict in the ordinance, that the ordinance is
very specific and says that this chapter that you're
traveling under prevails.
But I don't think they're obligated to make
that determination until they know that your client
is willing to allow them to test your engineer's
report. So those are the two alternatives that I
see are available to you.
MR. DEVITT: I agree with that interpretation.
MS. ORTHWEIN: Now, it's up to you whether
you're going to allow us to come in and look at the
house.
MR. MAYOR: We have to make a motion. Let's
move on.
MR. ROEDER: I'd like to make one more
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statement here. The issue you have before you is
whether or not a variance is required. I hear one
opinion from the attorney that it's not, and then
beyond that I hear it's whether or not we allow you
to put on a metal roof, we're going to want to see,
have our engineer take a look and verify that what
your engineer says is correct.
But the two are being mixed. The third
alternative is to make a decision, is there a
variance required; if not, then say but, instead of
approving what you have, we're going to want to see
X and Y, then have I something to take back to my
client. Otherwise it's, the town saying, well, for
these reasons -- which we're stepping ahead of
ourselves, for these reasons we're going to say a
variance is required. You're not making a decision.
MR. RANDOLPH: That's a viable third
alternative, as long as you agree that in the event
you don't meet the requirement of the roof being
able to substantiate the tile, that a variance is
needed, because then the prohibition does apply.
MR. ROEDER: That seems reasonable.
MR. RANDOLPH: You and I are saying the same
thing. He doesn't want to come back -- he doesn't
want to go to his client and say, look, they want
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you to -- they want to test your engineer's report
without knowing that you're not going to require him
to come in, if he goes that extra step and prove
that a variance is needed.
MR. ROEDER: Exactly, it's one step at a time.
We don't want the goal post to keep shifting, but we
have these concerns. We want to see this. Then my
client has a decision to make.
MS. ORTHWEIN: I think under our rule, a
variance is required right now.
MR. ROEDER: That's --
MS. ORTHWEIN: That's what I believe right now.
MR. ROEDER: I respectfully disagree.
MR. DEVITT: If you allow us to have an
engineer look at your engineer report, he's going to
come back and with one of two things. He can either
substantiate and verify your engineer's report, in
which case, this will be a done deal.
If he says, I don't agree with it, then you'll
either accept that and move on, or you'll want to
come in a variance. Go back to your client today
and if your client says, absolutely not, do not let
them in the house --
MR. ROEDER: So it's a deferring on the
variance today, but a request to review our
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engineer's report? Is that what I hear?
MR. RANDOLPH: I think you have to find that
out from whatever motion you hear today. That
sounds like what Fred's saying.
MR. MAYOR: We're ready for a motion.
MR. THRASHER: I'm concerned we won't have
resolution on two engineering reports, should there
be some thought of the two engineering firms going
and agreeing to a third.
MR. RANDOLPH: I think we can handle that
administratively. If, for instance, there's a
conflict in the two engineer reports, I think the
two engineers could select another engineer.
MS. ANDERSON: Oh, boy.
MR. RANDOLPH: Let's cross that bridge.
MR. MAYOR: Do we have a motion?
MR. DERING: I make a motion to defer this
until we have a right to have an engineer inspect
it, or stipulate if those two disagree that jointly
they provide a third one. And depending on the
results of that, and I presume you can get that done
in the next month, you know, if we come back and it
ought to be pretty clear then.
MS. ORTHWEIN: I second that.
MR. RANDOLPH: So we know, that's deferral then
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to a time certain, so we won't be required to give
notice again, we're deferring to a date certain
which will be what date, Rita?
THE CLERK: That will be May the 11th at 9 a.m.
MR. RANDOLPH: Unless --
MR. DERING: Do we want to do that or tell
him -- we have an obligation do it quickly, but do
we get an engineer? If your client will not let
another engineer in --
MR. ROEDER: I have a pretty good idea what
you're going to do on May 11th.
MR. RANDOLPH: If he doesn't let an engineer --
I think you should set a time certain so they don't
have to send notice out again. If it gets
complicated and it can't be done by then, you come
back in session and either defer it because of the
engineer's report hasn't been done or if the
engineer's report is refused, then you'll know what
action to take, you can come back.
MR. MAYOR: Do I hear a second?
MS. ORTHWEIN: I second.
MR. MAYOR: Roll call, please.
THE CLERK: Commissioner Orthwein?
MS. ORTHWEIN: Aye.
THE CLERK: Commissioner Devitt?
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MR. DEVITT: Aye.
THE CLERK: Commissioner Anderson?
MS. ANDERSON: Aye.
THE CLERK: Commissioner Dering?
MR. DERING: Aye.
THE CLERK: Mayor Koch?
MR. MAYOR: Aye.
MR. ROEDER: Just so I'm clear, if I could ask
Rita Monday or something, type me a little one
paragraph exactly what the motion says, because it's
confusing. I think I understand, but I want be able
to relay it to my client correctly. Thank you very
much for your time.
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CERTIFICATE
THE STATE OF FLORIDA, )
COUNTY OF PALM BEACH. )
I, Lee M. Walker, Florida Professional Reporter, do
hereby certify that the foregoing proceedings were held
as hereinabove set out; that I was authorized to and
did report in machine shorthand the proceedings in said
public meeting; and that the foregoing pages comprise a
true and correct transcription of my stenotype notes of
the proceedings.
Dated this 1st day of May 2012.
LEE M. WALKER, FPR
My Commission Expires 11/30/15
Commission #EE142444
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medium 23:8
meet 26:8,13
34:19
meeting 1:9
39:11
met 15:8 27:14
27:16 28:6,10
28:13 31:12
32:25 33:4,8
metal 3:20 5:21
6:10,14,18 7:4
7:7,8,11,14,16
7:22,22 8:7,10
8:18 9:7,10,14
9:18 10:9,12
10:1411:15,17
11:18 13:1,4,9
14:22 16:7,8
16:12,15 17:20
18:15 19:7,9
22:22,24,25
23:2,3,6,14,20
23:2129:1
30:6 34:5
Miami 3 1: 10
microphone
4:21
mind 30:4
minor 6:118:2
11:21
Missing 3:4
mixed 34:8
Monday 4:25
38:9
month 36:22
morning 4:1,14
motion 33:23
36:3,5,16,17
38:10
move 29:2132:5
33:24 35:20
multifamily 9:12
14:20,2122:9
Muriel 2:5
name4:1
National 3:3
necessarily 8:24
necessary 4:19
27:13
need 4:3 6:16
7:18:25 26:10
27:25 33:2,7
needed 34:21
35:4
needs 7:3 28:3
32:10
neighbor 30:5
neighborhood
6:19 7:5 10:10
10:15 11:1,5
13:7
new 15:9 31:14
note 6:16
noted 30:2
notes 39:12
notice 30:10
37:2,14
November 7:6
10:12
number 10:20
10:20,2121:5
22:20 26:15,16
31:13,19
numbers 5:8
object 25:13
obligated 33:14
obligation 37:7
obvious 17:20
Ocean 9:15
Oh 36:14
okay 3:13 10:12
21:16 28:5
old 22:14
ones 28:15 31:2
opinion 8:23,23
23:13 24:17
34:3
opinions 26:17
opportunity
16:126:25
30:1132:13
option 12:15
16:1
order 5:23 6:23
8:7 26:19
ordinance 12:8
12:17 24:6
33:11,11
original 9:17
Orthwein 2:4
14:6 24:19
25:24 28:13,16
30:12,16 31:7
32:4 33:20
35:9,12 36:24
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37:21,23,24
ought 36:23
outside 18:10
overall 23:19
override 12:5
overrule 12:25
overwhelming
12:23
owner 3:15
18:1419:18
20:20 21:1
owner's 20:25
O'Hare 3:15 4:2
4:17
O'Hare's 11:11
package 4:24
7:13 13:21,25
packet 14:5
page 5:24,25
10:17,2411:7
12:9 13:17
14:3
pages 14:2,4
16:23 39:11
PALM 39:5
paragraph 14:9
14:10,1138:10
paranoia 30:25
paranoid 31:2
paraphrase 6:24
part 5:16,25,25
7:3,19 8:6,11
10:8 18:19
partake 11:22
particular 17:19
18:5 29:9
parts 5:15
people 8:3 23:11
29:5 30:4
percent 10:22
period 7:7
permission
20:24
permit 3:2013:2
16:2,14 18:11
25:6
permitted 8:17
pictures 10:16
11:8 29:10
pitches 11:13
place 3:17 10:19
placed 15:7
places 29:10
plan 11:14
planner 8:3
planning 3:14
please 3:9 5:6,6
5:12 37:22
plenty 31:5
point 7:1019:6
19:15 20:6
pointed 19:2
32:21
points 18:18
19:25 21:5,12
Polo 9:14
portion 3:9
position 4:25
12:1 16:23
21:10,19 22:1
22:17,2124:4
28:5
positions 22:17
post 35:6
practice 15:15
15:22
precedent 12:16
predominant
10:3 15:2,12
15:17,19
prefers 18:15
prepared 5:2
present 2:14:6
15:9
presentation 4:5
4:6 5:6 17:4
presenting 3:25
presently 15:8
presume 36:21
pretty 12:21,22
12:23 29:11
36:23 37:10
prevail 12:15,20
13:19 14:14
17:10 18:2
19:5 20:6
32:24
prevails 16:9
33:13
priced 7:18
probably 4:3
8:25 19:18
problem 5:10,20
29:9
procedural
29:24
proceed 13:1
32:4
proceedings
39:8,10,13
process 25:8
proclamation
3:2
professional
24:16 39:7
prohibited 6:10
6:14 9:410:25
11:1,2,20 16:3
16:4,13 23:16
prohibition 6:9
8:9 9:8 17:9
20:11,12 26:11
27:22 28:1
33:6 34:21
prohibitive 8:13
prohibits 19:7,8
project 8:2
properties 9:22
14:22
property 3:16
propose 11:14
proposing 7:14
prove 35:3
proven 26:7
provide 7:3
11:17,18 14:4
21:16,18 24:13
36:20
provided 4:8
7:12,13 11:12
13:3 17:17
18:121:24
22:20
provides 15:25
19:9 21:25
provision 11:22
13:15,18 23:17
29:2 32:22
provisions 12:10
12:13,1413:19
14:12,13 17:5
17:7,10 19:3,4
32:23
public 1:9 3:7,9
30:2,4 39:11
put 7:24,25 8:4,7
11:9,24 22:4
23:3,17,24
34:5
putting 22:19
23:8
quality 7:16,18
8:15,219:3
13:4
question 13:11
17:418:23
20:14 21:17
24:19,22 26:1
26:2,5 27:3,6,7
27:22,24 28:21
29:15,23 32:2
questionable
24:24
questions 4:11
14:16 26:4
29:21
quickly 5:24
37:7
quite 23:11
26:13 31:9
quote 6:12 9:25
quotes 8:11
quoting 5:17
R
Randolph 2:8
4:12,16 13:10
13:13,25 14:4
14:7,15 17:2,3
18:17 19:15,21
19:25 21:12
24:3,14 25:19
26:3,5 27:2,9
28:15 29:23
30:18 32:6
34:17,23 36:2
36:10,15,25
37:5,12
rational 31:5
read 12:12
reading 9:6
ready 4:10 36:5
real 10:7 30:23
reality 31:4
really 21:20
27:22
reason 8:1
reasonable
26:18,21,22
34:22
reasoning 5:1
reasons 34:14,15
recall 22:7
received 4:25
record 3:24
30:18
referred 6:1
referring 14:23
refuse 31:16
refused 37:18
regard 13:17
20:20 32:22
regards 15:1,11
30:21
regulations 8:17
related 18:19
relates 20:14
29:25
relay 38:12
replace 11:15
29:6
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replacement
9:18
report 4:9,12,23
14:19 17:23
18:16 26:1,4
28:17,18 32:9
32:15,15,19
33:17 35:1,15
35:17 36:1
37:17,18 39:10
Reporter 39:7
reports 30:21
36:7,12
representing 4:2
4:16
represents 14:20
request 5:21
13:9 35:25
requested 19:17
20:20
requesting 12:24
require 16:5
35:2
required 8:8
11:23 12:22,24
20:16 21:13,14
25:25 27:4,5
28:6 34:2,10
34:16 35:10
37:1
requirement
25:22 28:4
33:4,9 34:19
requirements
5:19,22 22:17
31:1132:25
requires 18:24
22:9 30:7
requiring 5:1
reroof 15:9 22:5
reroofed 18:7
reroofing 6:20
7:122:3,18
25:1
residence 11:11
residences 11:4
residential 7:17
9:12 22:9
residents 14:21
17:22
resolution 12:9
36:7
resolve 25:18
27:23
respectfully
12:24 13:8
35:13
respond 17:5
response 5:2 6:2
13:13 30:10
responsibility
24:13
restrictions 24:1
restrictive 12:4
results 36:21
review 35:25
Revival 10:2
re-Sheetrocking
25:7
Ridge 9:14
right 9:13 11:10
19:13 21:21
24:22 25:20
27:2 29:20
30:8 31:20,21
31:22 35:10,12
36:18
Rita 5:3 19:18
20:19 21:6,9
37:3 38:9
Rita's 21:6
Roeder 4:1,2,8
4:13,14,22
13:11,12,21
14:1,8,16
16:18 19:2
21:4 24:8,18
25:1,4,15,19
26:2 27:128:2
31:8,18,21,23
31:25 32:7
33:25 34:22
35:5,11,13,24
37:10 38:8
Roeder's 17:14
Roll 37:22
roof 3:20 5:21
6:4,22 7:15,18
8:7,10 9:18
10:9,13 11:13
11:15,18,19
13:1,4,9 16:12
16:15 18:6,11
18:14,15 19:12
19:14 20:13
22:19,22,24,25
23:2,2,5,6,8,9
23:10,14,21,21
23:21,24 24:20
25:12 27:20,21
28:18 29:4,6,7
29:12,17 30:6
31:4 33:5,5
34:5,19
roofs 6:10,14,18
7:4,7,8,11,16
7:17,22,23
8:18 9:7,10,11
9:1410:14,25
11:3 13:6,7
14:20,22 15:7
16:7,8 17:20
19:7,9 29:1,11
rule 35:9
safety 30:24
31:3
sample 7:14
samples 13:3
saying 17:13,15
27:2,4,12 32:7
34:13,23 36:4
says 6:17 7:22
7:22 8:24
11:16 13:18
14:9 17:6,10
18:2 19:3
20:1121:20,24
22:25 24:15,23
25:20 29:16
32:22 33:12
34:7 35:19,22
38:10
second 18:19
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37:20,21
section 6:3,9,12
7:21 8:7,11 9:1
9:6,9,2412:2
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16:3,24 17:8
19:1,7 20:4,9
20:10 23:17
sections 15:13
16:22
sedans 23:9
see 7:20 9:19
10:2411:8
13:23 19:14
33:10,18 34:5
34:1135:7
select 36:13
send 37:14
senior 8:2
sentence 14:11
29:15
separate 20:1
27:6,10
separately 18:22
served 28:22
session 37:16
set 17:6 23:14
26:9 37:13
39:9
seven 3:6
shake 15:3 23:3
23:15,15,23
29:4
shakes 11:2,3,6
Sheetrock 25:6
shifting 35:6
shingle 23:3,15
23:15,23
shingles 11:1,6,8
11:10 15:3
shiny 13:5
shorthand 39:10
show 3:24 5:23
11:13 19:11
20:12 22:3
24:8 26:12
32:24 33:3,4,8
showing 11:4
shown 12:22
30:10
shows 33:10
sic 14:10
side 9:19,19
similar 18:8
simply 18:20
32:9
single 9:11,21
17:23
single-family
8:1916:6,11
17:22
sit 28:9
situation 7:1
sized 23:8
skip 5:24
slippery 16:16
Sloan 30:19,19
30:20,20
slope 16:16
slopes 6:4
Soleil 3:16,17
10:19 16:7
somebody 7:24
7:24
soon 23:14
sounds 36:4
Spanish -Medi...
10:21
speak 3:8 4:21
14:24 30:11,13
31:25
specific 6:8
12:22 33:12
specifically 8:6,9
11:1,2 20:5
spitting 5:9
square 23:7
Staff 16:21
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stand 3:9
standard 26:8
standards 6:5,6
6:7,1412:5
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31:14
standpoint
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start 21:15,23
STATE 39:3
stated 3:22
statement 34:1
states 6:3,10,24
8:13,18,22
9:25 10:8 20:6
stenotype 39:12
step 35:3,5
stepping 34:14
stipulate 36:19
stop 5:12
story 28:8
Stream 1:8,21
3:18 8:19 11:2
15:14
street 9:13 11:11
strength 30:22
31:4
stripped 25:6,10
strong 31:5
structure 6:19
6:22 7:5 10:10
15:9 19:11,14
20:13 27:20
structures 6:12
6:21
stuck 22:24
Studios 8:3
style 10:3 15:14
15:17
styles 10:1,5,17
10:22,23 15:2
15:12,19
subdivision 3:18
submitted 3:15
substantiate
34:20 35:17
sudden 24:21,25
supplied 10:16
support 6:22
18:11 19:11
20:13 29:7,12
33:5
sure 13:12 22:24
swear 3:10
19:20,21
sworn 3:9,12
19:19
take 8:6 23:5,13
23:23 25:5
26:14 28:5
34:6,12 37:19
taken 24:5
takes 24:12
talk 11:16 17:9
talked 10:5
25:10
talking 21:20,22
21:23 22:15
talks 8:12
tell 3:10 10:13
22:2137:6
test 20:17 26:19
26:25 27:17,19
32:14 33:16
35:1
testify 19:19
20:19 26:16
testimony 19:16
19:22
Thank 14:15
31:7 38:12
thing 25:18
34:24
things 27:129:1
35:16
think 4:9 5:20
5:217:7,17
10:4 12:21,22
13:20 15:11,19
16:2,16,20
17:1 18:5,21
19:120:8
21:14 24:19,22
25:19,22 26:5
26:6,9,12,18
26:21,22 27:9
27:12,15,23,23
28:2,6,10,10
28:13,17,20
29:14 32:5,6,9
32:20,25 33:3
33:9,14 35:9
36:2,10,12
37:13 38:11
thinks 27:12
third 34:8,17
36:9,20
thought 13:21
22:6 36:8
Thrasher 2:9
4:8,15,18 6:3
8:11,18 11:15
12:1 13:11
14:18 16:20
17:13 21:4,25
22:16,25 36:6
Thrasher's 4:5
4:25 5:13 8:23
12:25
three 5:15,24,25
5:25 11:6,7
14:120:22
tie 27:11
tile 6:22 9:17
19:1120:13
22:18 23:4,4,5
23:10 25:11
27:20 29:7,12
29:17 33:5
34:20
time 3:20 18:16
22:12 29:3
30:3,22 32:17
35:5 37:1,13
38:13
times 6:2 20:23
today 29:14,25
32:10 35:21,25
36:3
told 7:7 10:14
18:13 21:1
top 28:25
town 1:8 2:8,9
4:18 6:5,6,18
6:25 7:3,6,10
10:9,11,18
12:3 13:22
14:20,2416:9
17:18 18:3,20
19:17 20:7
21:17,25 22:16
24:7,1126:3,4
26:14,18,23
27:2,6,17 28:4
31:17 32:8,14
34:13
town's 7:3 21:9
22:21
transcription
39:12
transpired 18:9
traveling 20:10
33:13
tried 10:11
true 39:12
truth 3:10,10,11
19:22,23,23
try 5:12 12:7
19:25
trying 12:12
25:18 27:11
Turn 10:24
two 6:24 7:1
9:16,21 16:22
18:18 19:25
20:8 21:12
22:2,17,17,20
25:20 27:1,9
27:10 31:13
32:6 33:17
34:8 35:16
36:7,8,12,13
36:19
two-story 9:15
type 18:6,8 38:9
types 15:3
U
underneath 22:5
understand
23:1124:14
38:11
understanding
24:3
undetermined
10:23
Unidentified
3:12
unpainted 6:10
unwilling 21:2
Urban 8:3 28:23
use 8:12 9:24
value 9:23
values 30:22
variance 3:20
4:19 5:2,8,14
5:17,18 8:8
11:19,23 12:21
16:5 18:25
20:3 21:10,13
21:14,22 25:21
25:22,25 26:3
26:6,10 27:4,5
27:13,21,25
28:4,9,16 30:8
32:1,1133:2,7
34:2,10,16,20
35:4,10,21,25
variances 12:23
28:5
variants 15:2
variation 31:6
variety 31:1
various 10:22,23
verified 24:10
verify 26:20
27:17 32:18
34:6 35:17
versus 15:13
viable 34:17
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I
Vice 2:4
voice 17:18,25
18:3
W2:7
Walker 39:7,19
want 13:16
14:17 17:22
30:3 34:5,11
34:24,25,25
35:1,6,7,20
37:6 38:11
wanted 8:6
11:22 22:23
30:18
wants 18:14
22:25 23:1
27:6 28:5
29:19,20 30:12
way 9:15 24:6
27:10
weakening
22:12
weight 23:5,9,25
29:7,12 33:9
we'll 7:20
we're 4:17 12:24
13:3 21:10,20
21:22 22:15
25:18,20,23
29:5,2134:5
34:11,14,15
36:5 37:2
we've 12:22
28:10 31:15
white 9:17 13:5
13:5,5,7 14:14
29:12,17
wide 6:5,612:5
15:12,13,18,19
16:9
William 2:3,9
willing 33:16
wisdom 7:25
withdrawn
18:12
wondered 7:20
30:3
wondering 7:23
wood 11:2 30:23
30:24
word 9:2
work 15:16
29:16
works 11:24
worried 29:6
wouldn't 24:9
written 24:6
29:13
wrong 5:20 27:7
X 34:12
Y
Y 34:12
yardstick 10:7
10:15
yeah 25:3 26:5
year 22:10
years 8:4 22:14
22:15 23:12
24:20 28:19
29:18
zoning 8:15,21
9:4
1
1st 39:14
1123:8
11th 37:4,11
11/30/1539:19
131:22
15th 7:6 10:12
187(2) 6:24 12:6
187-222:1,2
197218:5
199918:7,9 25:2
31:9
28:11
2
20121:22 3:3
39:14
25th 3:3
2520 3:16
3
3522:14 23:12
36 3:17
40 22:15 28:19
29:18
44009:15
56:5,6 7:21
12:14 14:13
17:8,8 19:4
6
6 6:7 7:22 12:10
14:2
6th 12:25
66.15:17
7
7010:22 32:24
70-18614:9 17:6
19:3
70-18710:7
16:24
70-187(2) 6:13
7:8 9:7 10:8
12:19,19 19:8
70-4 9:24
704(c)(4) 8:12
70-8614:10
70-9916:2419:7
70-99(3) 6:3
12:2,18
9
9 37:4
9:301:22
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Tab 14
Response to Mr. Thrasher's Required Variance
April 13, 2012
ARGUMENT AGAINST
IIL1G1r
Sec. 66-1 Definitions
"Variance shall mean a deviation from the district requirements of this chapter...."
1. We agree with Mr. Thrasher as to the stated definition --that a variance is a deviation from the code;
howeverthe metal roof Mr. O'Hare is proposing is allowed under the Town Code, and is not a
deviation from it.
Please go to discussion of Sec. 70-187(2) under Part lll, Clarification.
2. Since a reading of Sec. 70-187(2) clearly indicates that a metal roof is allowed under certain
circumstances, circumstances that my client has met, I thought it prudent to call one of those who, in
their infinite wisdom, found it appropriate to include this provision within the Town's code to see if
they would classify this as a variance. So, I called Marty Minor, Senior Project Planner with Urban
Design Studio, the firm that drafted the Gulf Stream Design Manual years ago for the Commission's
approval. When I asked Mr. Minor if we should elect to proceed with a metal roof as allowed under
Sec. 70-187(2), would a variance be necessary? He replied, "NO." He said Sec. 70-187(2) was our "out
to a prohibition of metal roofs."
PART 11
Sec. 70-4(c)(4) How to use the manual
a. Prohibited items are design elements that do not maintain the desired character or quality of the
zoning district within which they are located and [my emphasis] are not permitted undercurrent
codes or regulations.
1. Mr. Thrasher says that "There are no metal roofs on any single family homes in Gulf Stream as they
do not maintain the desired character or quality of any zoning districts." However, I cannot find this
specific finding in the code. That's because it's not in the code. It's simply Mr. Thrasher's opinion.
And to take the position that something cannot be approved because it doesn't yet exist in the Town
is, we think, indefensible.
Page 1 of 4
2. However, it probably isn't necessary to make that kind of decision, because Mr. Thrasher also fails to
note that the section of the code he is quoting here, Sec. 70-4(c)(4), requires that a prohibited design
element not maintain the character of the zoning district AND not be permitted under the current
code. Since metal roofs are permitted under the Town code, we feel that Mr. Thrasher is wrong and
Sec. 70-4(c)4 would NOT apply to my client's request.
3. Assuming for a moment we accept Mr. Thrasher's assertion that there are no metal roofs on single
family residences within Gulf Stream (even though we believe there might be some in the recently
annexed areas), there are metal roofs on several multi -family residential buildings, which co -exist
adjacent to single family residential — with no apparent negative impacts. One needs only look at
3960 N. Ocean Blvd (or Polo Ridge) right across the street from the Town Hall and next to several
single family residences along County Road. And then there's 4400 N. Ocean Blvd, two, identical 2 -
story residential condo buildings, one with it's original white concrete tile mansard roof, the other
with a white metal mansard roof replacement. Have the single family homes behind or next to either
of these buildings been negatively impacted? We don't think so.
4. It is appropriate to note here that also in Sec. 70-4 How to use this manual, when discussing styles,
the manual states that "[Gulf Stream Bermuda and Mediterranean Revival] styles are not mandatory
but are indicative of the predominant styles within the community." So, there seems to be a conflict
here. Does one's design elements have to maintain the character of the zoning district as Mr.
Thrasher suggests, less they be declared "prohibited?" Or does one look to the "predominant style in
one's neighborhood as another part of Sec. 70-4 suggests? But again looking to the wording of Sec.
70-187(2) for guidance, the yardstick seems to be "o metal roof determined by the Town to be
appropriate to the structure and to the neighborhood" — which is something my client's roofer
originally asked the Town to provide back on Nov. 15th; he was told by Mr. Thrasher, "No metal
roofs, period," which clearly is not what the code says, and is misleading in its omission of the clearly
available option.
Not that it's my client's obligation according to the code, but we can provide the Commission some
information about the Place Au Soleil, the neighborhood in which my client's house is located. In
Place Au Soleil some 70% of the lots are labeled by the Town code as "other/various styles." You
should note that even the great majority of homes in all of Gulf Stream are classified as
"other/various styles." Please see map provided.
As far as prohibited roof styles within my client's neighborhood, there are 3 homes that have wood
shakes, 3 have flat roofs, and 4 with asphalt shingles, including one home with a shingle roof right
across the street from my client (please see attached) — again, all are prohibited roof types with no
conditional allowances. So, how can one say a metal roof, a roof type which is allowed under Sec. 70-
187(2), would "not maintain the desired character or quality of the zoning district within which [my
client's house is] located?"
Page 2 of 4
5. Since we're on this subject, you might also want to note that in sec. 70-3 Purpose [of the Design
Manual] it states that "the design standards in this chapter (Chapter 70) are, by specific intent,
illustrative rather than prescriptive" (i.e., not relating to the imposition or enforcement of a rule)."
PART III
Sec. 70-99 (3) Roof design, slope and materials
"Prohibited. Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory
structures.)"
Section 70-187(2) Roofs
"Prohibited. Metal roofs'
1. Certain metal roofs determined by the town to be appropriate to the structure and the
neighborhood may be approved only in instances of re -roofing of existing structures based upon an
engineer's certification that the existing structure will not support a tile roof."
CLARIFICATION:
To paraphrase here, it's very clear to an unbiased reading of the code, that 70-187(2) states what maybe
done -- in other words, what is permitted. And there are conditions to what is permitted -- 2 on behalf of
my client, 1 on behalf of the Town.
As far as my client is concerned, we must (a) be an instance of re -roofing, which we are, AND (b) we must
provide the Town with an engineer's certification that the existing structure will not support a tile roof,
which we have also done.
Now, according to the code, it is incumbent upon the Town to let us know what the "certain metal roofs"
are that they will approve. If the Town takes the position that there are no appropriate metal roofs, then
the code would be misleading and there should, instead, be an outright prohibition with no footnote —
which we think would be contrary to the intent and the letter of the code. If the Town hasn't yet figured
out what metal roofs are appropriate, then we've provided you, the ultimate decision making body, the
Town Commission sitting as the Board of Adjustment, some information on the metal roof my client is
proposing. It is the highest quality and highest gauge of metal roof made for residential use; and it is
white, so as to match the other white roofs in the neighborhood (which, by the way, are not all white).
Please go back to Part 1(2).
Page 3 of 4
MR. THRASHER'S POSITION:
Mr. Thrasher makes a couple of points regarding 70-99(3) and 70-187(2):
1. First, Mr. Thrasher says that "even though the footnote could provide for a metal roof, a variance
would be required as it is still listed as prohibited." THIS SIMPLY IS NOT TRUE. Metal roofs are a
conditional allowance under Sec. 70-187(2). Again, I called Marty Minor, Senior Project Planner with
Urban Design Studios. And when I asked Mr. Minor, should Mr. O'Hare elect to proceed with a metal
roof as allowed under Sec. 70-187(2), would a variance be necessary, he replied, "NO."
2. Next, Mr. Thrasher says that since the mention of metal roofs is in two sections, and since the two
sections conflict, the most restrictive section, Sec. 70-99(3), by some historical convention, must
prevail.
a. If there is a conflict, one should go to the code for guidance. If one looks in Article VI, at the last
sentence of 70-186(b), you will note:
"...where the provisions of this article [where Sec. 70-187(2) is located] conflict with those of
article V [where Sec. 70-99(3) is located], the provisions of this article shall prevail. "
In other words, Sec. 70-187(2) supersedes Sec. 70-99(3).
b. Mr. Thrasher in his report admits that there is a conflict between Sec. 70-99(3) and Sec. 70-
187(2). So, if Sec. 70-99(3) prohibits metal roofs, and if there is a conflict with 70-187(2) as Mr.
Thrasher admits, then 70-187(2) must therefore allow metal roofs; because if Sec. 70-99(3) and
Sec. 70-187(2) both prohibit metal roofs, then there is no conflict. So, if Sec. 70-187(2) allows
metal roofs, which it does, and if a variance, by the definition provided by Mr. Thrasher, is a
deviation from the code, then a variance is NOT required.
RECOMMENDED MOTIONS:
The evidence supporting our Appeal is specific and overwhelming. As such, we think fallowing
Commission actions are warranted:
1. Over -turn the Town Manager's decision in his March 6, 2012 letter requiring my client to submit for a
variance in order to install a metal roof; AND
2a. Approve my clients application for a white metal roof; OR
2b. As required by the Town code, tell my client what type of metal roof you would find appropriate.
— THANK YOU —
Page 4 of 4
Place Au Soleil Neighborhood
STYLES:
Gulf Stream Bermuda . 22 homes 24%
Spanish/Mediterranean Revival: 5 homes 6%
Other/Various: 63 homes 70%
Total 90 homes
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Tab 15
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
BOARD OF ADJUSTMENT
100 SEA ROAD
GULF STREAM, FLORIDA 33463
(561) 276-5116
BOARD OF ADJUSTMENT
MEETING of May 11, 2012
9:00 a.m.
TOWN HALL
100 Sea Road
Gulf Stream, Florida 33483
APPEARANCES:
WILLIAM F. KOCH, JR., Mayor
JOAN K. ORTHWEIN, Vice Mayor
W. GARRETT DERING, Commissioner
MURIEL J. ANDERSON, Commissioner
FRED B. DEVITT, II, Commissioner
WILLIAM H. THRASHER, Town Manager
RITA TAYLOR, Town Clerk
JOHN RANDOLPH, Town Attorney
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had:)
(Thereupon, the following proceedings were
MS. TAYLOR: Commissioner Orthwein?
VICE MAYOR ORTHWEIN: Here.
MS. TAYLOR: Commissioner Devitt?
MR. DEVITT: Here.
MS. TAYLOR: Commissioner Anderson?
MS. ANDERSON
MS. TAYLOR:
MR. DERING:
MS. TAYLOR:
MAYOR KOCH:
Here.
Commissioner Dering?
Here.
Mayor Koch?
Here.
MS. TAYLOR: Let the Record show that the
Town Manager and Attorney Randolph are also
present.
MAYOR KOCH: You have the minutes. Any
additions, corrections of anybody?
MS. ANDERSON: I would like to move they are
approved from the meeting of April 15th.
MAYOR KOCH: So moved.
VICE MAYOR ORTHWEIN: Second.
MAYOR KOCH: All right. Roll call.
MS. TAYLOR: Commissioner Orthwein?
VICE MAYOR ORTHWEIN: Aye.
MS. TAYLOR: Commissioner Devitt?
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MR. DEVITT: Aye.
MS. TAYLOR: Commissioner Anderson?
MS. ANDERSON: Aye.
MS. TAYLOR: Commissioner Dering?
MR. DERING: Yes.
MS. TAYLOR: Mayor Koch?
MAYOR KOCH: Aye. Thank you.
MR. RANDOLPH: In regards to the matter of
Christopher O'Hare, the owner of the property
located at 2520 Avenue Au Soleil, you will recall
that, at the last meeting, the Board of Adjustment
gave consideration to an appeal of the decision of
the administrative official as to whether or not a
variance was required to place a metal roof on a
single-family structure.
After hearing, you made a motion indicating
that the applicant should advise the town as to
whether or not the property owner would allow the
town to select an engineer to attempt to verify
the report of the owner's engineer; and in the
event that those two engineers had a disagreement,
that those two engineers could appoint a third
engineer and make a determination as to whether or
not this structure of this house would or would
not support a tile roof.
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Since that time, I have received a letter
from Mr. Rader, who is the property owner's
attorney, advising that the owner did not wish to
allow the town to select an engineer, under the
terms of the motion, as made. I think that, as
part of this hearing today, we should hear
directly from Mr. Rader, if he is acting as the
representative today, as to that position, rather
than you hearing that from me. I think we should
hear from him as to the owner's position in regard
to that.
This is a quasi-judicial hearing and I think
it would be appropriate for us to incorporate, as
part of the Record of this proceeding, the minutes
of the last meeting, which are the minutes that
you just approved of April 13th, 2012. But I
think it would be appropriate, Mr. Mayor, for us
to hear from Mr. Rader first, in regard to his
client's response to the town's request.
MAYOR KOCH: Okay.
MR. RADER: Good morning, Mayor,
Commissioners, Mr. Thrasher, Mr. Randolph.
Before I answer that question or explain my
client's position, I would like to at least make
some points of some questions to pose and points
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of clarification I think that came out of last
month's meeting.
The first of these is I think the motion was
made that allowed, before making the decision on
the variance appeal that we had before the
commission, to allow -- my client to allow the
town's engineer to test my client's engineer's
certification; and if they disagree, then have a
third engineer come in.
The first question we had is who is paying
for these engineers? And the code calls for one
engineer certification, but if there is a second
engineer, a town engineer and they disagree, then
the third engineer, who is paying for the other
two engineers?
Secondly, if they agree with our engineer,
the town's engineer agrees, and we, then, have
satisfied our two points of Code Section 71.872 in
that we have provided -- we then have a re -roofing
application, we provided engineer certification,
which is then verified by the town, how long will
it take the town to come up to their obligation
under 71.872, which is to tell us what type of
roof, metal roof is appropriate for this
structure, in the neighborhood?
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Then, if the town, if they disagree, suppose
the second engineer and third engineer disagree
with my client's engineer, for whatever reasons,
my client's engineer feels that it's unsafe for a
concrete tile roof, the town's engineer and this
third engineer say it can handle it, the town
forces my client to put on a concrete tile roof.
A year or two goes by, the roof fails. Who takes
liability? Is the town going to accept liability
for forcing my client to put on a concrete tile
roof, which is against my client's engineer's
opinion?
And then, fourthly, is the town hereby
putting an extra condition on the code? The code
says, in instances where there is re -roofing and a
certification by the applicant, the town is to
provide what metal roof is appropriate for the
structure, in the neighborhood. The town now says
there is a third condition for the applicant. The
third condition is you have to let our engineer
certify. Is this the town acting administratively
in making a decision regarding the code?
And then, we would really like to know, also
pose the question to the town, in acquiring this
verification of our engineer's certification, is
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there any other precedent in the town's actions
where this is done, by a survey provided, being
required, according to certain parts of the code,
an applicant provides a certified survey, the town
then says we don't believe it, we need to certify
it, we need to verify that. Are there any other
instances regarding any other professional
certifications for the town?
And to summarize my client's decision, I
think he does not want to allow the town to have
their engineer come in and verify his engineer's
certification. And there has been some question
that it is unreasonable. We would like to explain
why that is not only very reasonable for my client
to take that position.
The reason why is we have the goalpost
moving, here. Back on November 15th, he asked the
town, can we put on a metal roof? The town's
response, absolutely not; no metal roofs in the
town of Gulf Stream, period.
Then, when we find the exception in the code,
we approached the town again. The goalpost moves
because we say, well, there is an exception here.
Can you please approve a metal roof? Can you say
this metal roof is appropriate? And the response
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is no, a variance is required, and once you apply
for a variance, then our engineers can inspect the
structure.
Then, we come to the hearing last month and
the town says, well, we're not saying you're wrong
in your interpretation of the code, but we don't
think metal roofs are desirable in the Town of
Gulf Stream. The goalpost moves back.
Then, we get a motion that says, and approved
by the commission, that says we will not even
consider whether or not your variance is required
until you allow our engineer to verify our
certification. Again, the goalpost moves out even
more.
What we have here is the town consistently
moving the goalpost. This has caused my client
extreme angst, because what happens if we provide
an engineer to verify our certification? The town
is now going to decide -- the town never said, the
commission never said, well, if you do this, the
verification is not required to have a metal roof,
but the town says we'll decide after you do that.
We have seen, lately, that the commission,
itself, has defended its own positions with other
applicants regarding other issues, by saying we
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