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HomeMy WebLinkAboutMinutes CESM 020700CITY OF PALM BEACH GARDENS CODE ENFORCEMENT BOARD FEBRUARY 7, 2000 The February 7, 2000 City of Palm Beach Gardens Code Enforcement Board was called to order at 7:00 P.M. in the Council Chambers of the Municipal Complex located at 10500 North Military Trail, Palm Beach Gardens, Florida; and opened with the Pledge of Allegiance to the Flag. The roll was called by the secretary and the following appointed members were found to be in attendance: Kevin Wagner, Lynn Waxman, Neil Lewis, Ernest Volante, John Little, and Pete Miskovich. Also in attendance were Code Enforcement Administrator Paul Friedman, City Attorney Lee Rosenthal; and Code Enforcement Officer Daniel McDade. 11 Neil Lewis made a motion to accept the minutes of the October 4, 1999 meeting as submitted. Motion was seconded by Lynn Waxman and carried by unanimous vote. Pete Miskovich made a motion to accept the minutes of the December 6, 1999 meeting as submitted. Motion was seconded by Neil Lewis and carried by unanimous vote. SWEARING IN City Attorney Lee Rosenthal swore in all those intending to speak during the upcoming procedure. ADMINISTRATIVE ANNOUNCEMENTS Code Enforcement Administrator Paul Friedman announced that a workshop meeting would be held and he would call the members of the Board with the date. It was agreed that a Tuesday night was best. Code Enforcement Board Meeting Minutes February 7, 2000 Page 2 VIOLATION CASES Case No. 99 -488 99-489 99 -490 99 -491 Respondent(s)/Defendant(s) Property Owner: Jack DeMarco 9112 Alternate AlA, Suite 101 Lake Park, FL 33403 Code Section: 118 -246 Chart of permitted and conditional uses. Attorney Andrew Pineiro presented the case, announced that Case No. 99 -488 represented property located at 385 GardenBoulevardzonedRL -3, and Cases No. 99-489,99-490, and 99 -491 were properties located on Holly Drive zoned RM. The zoning and notice were stipulated by the attorney for Freedom House. Copies of the chart of permitted and conditional uses were distributed. Mr. Pineiro explained that Freedom House was a halfway house for recovering drug and alcohol addicts and had been in existence since 1990. Mr. Pineiro submitted into evidence as the City's Exhibit #1 a pamphlet advertising Freedom House, explained that previous City staff members had authorized repairs over the years; however, Florida law did not hold the City responsible for unauthorized actions of predecessors. Attorney Pineiro explained that repairs had been made for the health, welfare, and safety of the residents of the home and the residents of the City, and requested that police reports be entered into evidence as City's Exhibit No. 2. Opposing Counsel Joslin objected to the exhibit of police reports, stating that health, welfare and safety was not the violation cited, but that he would stipulate that there were police reports. Following discussion of the appropriateness of the police reports, a poll of the Board indicated they did not wish to consider the police reports at this time. Attorney Pineiro presented argument that Freedom House was a commercial business for profit, and that a former City Manager, Mr. Orr, had mistakenly allowed this use in a residential zone. Attorney Brian Joslin rebutted statements made by Attorney Pineiro and moved to enter an exhibit book into evidence. The relevance of the exhibits in the evidence book was questioned; therefore, the exhibits were discussed individually. Attorney Joslin described the activities of the residents of Freedom House, and explained that the housing was used for lodging and that other activities of the Freedom House program were conducted off - premises. Attorney Joslin represented that the properties owned by Mr. DeMarco were no different than any other rentals within the City; Code Enforcement Board Meeting Minutes February 7, 2000 Page 3 explained that the residents were not sent there as a condition of probation, and that Freedom House received no state funds. Composite Exhibit One was admitted into evidence. Attorney Joslin referred to the notice of violation and the actions listed to effect a cure of the problem: cease use of the property for commercial purposes, cease operating a commercial establishment in a residential district, or seek rezoning of the property to the appropriate zoning district. Attorney Joslin argued that at the beginning when original approval was granted that a distinction was made between renting rooms to men in recovery and operating a commercial business on -site, and that their renting rooms was no different than any other rentals. Attorney Joslin described improvements made by the owner in 1997 for which the workman did not obtain a permit, resulting in a code enforcement citation for lack of permit and no occupational license, with which the owner had complied. Occupational licenses were discussed Attorney Joslin moved to place exhibits 2 (Memo to Linda. Kosier from W.E. `Bill" Beville), 3 (Code Enforcement Division Notices of Violation), and 4 (Application for Occupational License) into evidence, which Attorney Pineiro objected were irrelevant. A poll of the Board agreed that these exhibits were irrelevant except for the notice of violation. Exhibit 6, (Palm Beach Gardens Fire Department Fire Safety Inspection Reports for various addresses) was discussed, and the City Attorney advised that evidence should be admitted whether or not it was considered irrelevant; however, a poll of the Board indicated 4 against admitting Exhibit 6 , and 3 in favor. A member of the Board expressed his opinion that this operation was similar to a rooming house where more people were allowed to live in a dwelling. Attorney Joslin argued that all his client was doing was renting rooms and other people who rented rooms were not required to add fire alarms as his client had been required to do, and stated that the fact that Mr. DeMarco had installed the alarms relying on the City in order to keep going constituted an estoppel. Renting to family members as opposed to unrelated persons and collecting rent on a weekly basis was discussed Attorney Joslin moved that Tab 8 (City of Palm Beach Gardens Application for Occupational License) be entered into evidence, which the Board accepted Attorney Joslin discussed Tab 15 (Memo to Bobbie Herakovich, City Manager, from Beth Ingold -Love, Public Information Officer). The City attorney objected to the relevance of the document, stating Attorney Joslin had said police reports had no involvement; however the City response team was made up of all departments, including Police. The Chairman indicated the issue of whether this establishment was commercial did not have a lot to do with whether the police had been in the area and his general thought was that as long as there was nothing particularly objectionable about a piece of evidence, it should be accepted, and Counsel should be allowed to present his case, because the Board was trying to make a strong effort to give everyone a sense of due process. The Chairman commented that he believed the City had shown their position: that this was inconsistent with their position today, and that it was not necessary to go through this step -by -step, and felt there was no reason to keep this document out of evidence. The Board accepted Exhibit 15 into evidence. Tab 19 (Memo 4 Code Enforcement Board Meeting Minutes February 7, 2000 Page 4 to Bobbie Herakovich, City Manager, from Carole Wallace Post, City Attorney, dated 10/l/98), which gave an opinion that in order for the use to continue a text change to the zoning was needed, which Attorney Joslin stated was required in 1992 and then Mr. DeMarco was told a text change was not needed Attorney Joslin argued the fact that Carole Post decided a test change was needed was not evidence that the original approval was a mistake. Attorney Joslin commented there was nothing noted in support of her opinions. The City attorney objected The Board accepted Exhibit 19 into evidence. Attorney Joslin explained that Exhibit 23 (E -mail to Paul Friedman; Daniel McDade CC: Roxanne Manning, Kim Glas, Bobbie Herakovich, dated 7/7/99 from City Attorney Carole Post) requesting a standard inspection, had been found to be unnecessary when it was learned the Fire Department had recently completed an inspection. Attorney Joslin commented that what was contemplated was not a standard inspection if the City Attorney needed to be contacted. The City attorney objected as not relevant. The Board entered Exhibit 23 into evidence. During review of Exhibit 24 (memo from Roxanne Manning to City Manager Bobbie Herakovich dated 7/12/99) by Attorney Joslin he indicated that Ms. Manning had stated she was unclear about why proceeding with Freedom House need to be delayed and that she would get in touch with City Attorney Post; and that same afternoon had written the cover letter accompanying Notice of Violation ( Exhibit 25 - Cover letter from Roxanne Manning to Jack DeMarco dated 7/12/99 accompanying Notice of Violation). Attorney Joslin requested that Exhibits 24 and 25 be moved into evidence, as well as the balance of the book, stating that the specific documents already mentioned were what was being relied upon; however, stated that the other documents bear on this issue as well. Upon objection by the City's attorney, the Chairman announced that admitting the rest of the book would be delayed until the City's attorney could review the documents to determine whether any were so inflammatory they might unduly sway the Board Attorney Joslin moved that the City's current Code of Ordinances as well as the Code of Ordinances that existed through 1991 and a Supplement updated by Ordinance 4 -1991. The City's attorney objected regarding authenticity. The law was moved into evidence. Attorney Joslin quoted from the Code in effect in 1992 and stated there was nothing about the operation of Freedom House duplexes and single family homes that violated the intent of the Zoning District regulations that existed in 1992. Attorney Joslin reported Mr. DeMarco had requested a text change amendment as required in 1992, and was told by the City it was not necessary. Attorney Joslin commented that the respondent had heard that the entire justification for this case had been that the original approval was granted by mistake, but those involved in the original approval were not present testifying they had made a mistake, and there was no proof presented that conditions of the original approval had been violated Attorney Joslin stated the condition of the original approval made a distinction between what the respondent was doing-renting rooms -and operating a commercial enterprise; and that now the City was saying that doing what they had been doing for eight years was a commercial enterprise, because a new City Attorney decided that was what she needed to do, and that was not the way the law was Code Enforcement Board Meeting Minutes February 7, 2000 Page 5 supposed to work and that was not what the law should require in this case. Attorney Joslin stated that Freedom House had been in operation and was within their rights to rent rooms as they were renting them; that no one was selling anything on site or operating any kind of a home business, and there was no evidence about why the City now believed -after compliance with everything the City asked for the past eight years —that this was a commercial use. Attorney Joslin stated that the Fair Housing Act prohibited interference with people who wanted to rent rooms, their homes, or a duplex, to people who were recovering drug or alcohol addicts. Attorney Joslin asked consideration of the case of Fox vs. Town of Bay Harbor Islands 3rd District Court Case, 1984, in which the 3rd District Court had been faced with a zoning regulation that prohibited certain types of people from renting certain types of apartments, and the Court had said particularly pertinent here is the fact that zoning ordinances are much less suspect when they focus on a use than when they command inquiry into who the users are; and Attorney Joslin commented there had been no contradicting testimony or evidence regarding use in the City's case. Attorney Joslin stated that in the absence of any evidence of mistake or violation of the original conditions of approval, the Board should not continue the notice of violation and permit their actions to continue. Discussion ensued during which Chairman Wagner questioned whether there was law that once someone relied on a decision made by the City that the City could not reinterpret it, to which Attorney Joslin replied affirmatively, that it was called reasonable estoppel. Counsel commented that if the City took an action that was a mistake under their code they could revoke later, but if what was done initially was valid or there was no evidence of a mistake the City could not change their mind later. Maximum number of residents for Freedom House was stated as 34 for their 3 duplexes and the Garden Boulevard house. Clarification as to why Freedom House was considered commercial if they were just renting out rooms was requested Response was that this was where the people's lives were administered with structured meal times, activities, etc., and this was a component of a business enterprise. Group homes were discussed and it was stated they were allowed and if all components of Section 419 were complied with this could be a group home. Section 118.300 was discussed, and an opinion was given that the Planning and Zoning Commission could interpret and make recommendations, and the City Council could approve or deny. Code Enforcement Director Friedman explained that this use was not one of the things that could be administratively approved by the Planning and Zoning Commission. Attorney Pineiro acknowledged the law was wrongfully applied in 1992 and Mr. Orr had no decision- making power since the City Council was the body which made decisions and ordinances. Attorney Pineiro stated as to preponderance of the evidence, if the Board found 51% of the evidence showed commercial activity, that was enough for the Board to find the respondent was acting contrary to the code and contrary to the chart of permitted uses. Attorney Pineiro stated the case law clearly showed estoppel could not be asserted against a government entity based on mistaken statements of law. Attorney Pineiro commented opposing counsel had stated the City was looking to keep people out, which was exactly what was not being done, Code Enforcement Board Meeting Minutes February 7, 2000 Page 6 and this issue was strictly commercial use versus residential use, and there were other areas within the City where this activity was allowed, and the respondent had constructive knowledge of applicable land use regulations. Attorney Pineiro explained that opposing Counsel had stated there was no evidence before the Board of a commercial enterprise, and he disagreed since he believed the whole packet showed that there was commercial enterprise. Attorney Pineiro moved that the police reports be submitted into evidence, and discussion ensued; however, the Board voted 4 -2 not to submit the reports. Attorney Pineiro summed up his previous comments. Overcrowding, maximum number of people who could live under one roof and whether the City had adopted a code regarding whether the people were related or non - related was discussed Chairman Wagner requested testimony from Jack DeMarco regarding house activity. Mr. DeMarco testified the house activity was volleyball and on a typical day 99% of the residents went to work and on their day off they played volleyball or went down the street to play basketball. Mr. DeMarco responded to Chairman Wagner's question regarding whether someone from the organization was there to monitor what went on in the house by explaining that there was not, but that the person who had been in recovery longest called him if there was an emergency. Mr. DeMarco reported curfew and other items listed were self enforced, and no staff was on premises, but the person who had been in recovery longest received a reduction in his rent. Attorney Pineiro reported from minutes of a 1992 Planning and Zoning meeting that Mr. Schwab had stated there would be a staff member on site, which Mr. DeMarco stated that had been planned in the beginning but that had never happened Attorney Pmeiro questioned who enforced the rules, to which Mr. DeMarco responded he and his nephew occasionally visited the house and the rules were conducted from the office through a Friday night meeting. Attorney Pineiro questioned why a weekend pass was needed, which Mr. DeMarco explained that was something earned through doing well in recovery. Attorney Pmeiro questioned whether this was part of a recovery program to which Mr. DeMarco responded affirmatively. Mr. DeMarco answered questions from members of the Board regarding meetings and explained no meetings were held at the house. Attorney Joslin discussed items decided upon in 1992, and indicated that operations were the same as they were then, stated the respondent should be able to continue to operate and that the violation should be rejected Attorney Pineiro commented what happened in 1992 was irrelevant and what was relevant was that the respondent had been cited for being a commercial entity in a residential area, and this was a part of the business. Attorney Joshn responded this was connected to something that occurred off site but the violation was for what was going on in this property, and no business was going on there. Mr. Lewis commented he had a tenant who mowed the yard and received a reduction in rent and who called him is anything was wrong, and from the standpoint of being a landlord he saw no difference or commercial activity going on Chairman Wagner discussed the estoppel issue and that the law said the City could change its mind if it did something that was wrong, so the only question for the Board to decide was whether this was a commercial establishment or not, and if it was they were in violation and Code Enforcement Board Meeting Minutes February 7, 2000 Page 7 if it was not there was no violation Another member of the Board commented he would like to hear testimony from former residents regarding what went on there. Board member Lynn Waxman questioned whether there was a definition in the Florida statutes of a commercial enterprise, to which the response was that it was unknown whether there was a definition given Attorney Rosenthal pointed out that under the ordinance the issue was not whether a commercial enterprise existed there but whether there was commercial activity, and staff and counsel had presented evidence to convince the Board that a commercial enterprise existed; however, he had not heard evidence whether these were commercial activities. Attorney Rosenthal stated the Board must determine whether the City staff had proved to them more likely than not there was a commercial activity because that was an element of the offense; and next, if they had done that to the Board's satisfaction, whether the Planning and Zoning Commission had had the right to determine operation was similar to a regular apartment, and if in the Board's opinion they had the right, that would distinguish this case from the cases cited regarding lack of power of a city to estop. Discussion ensued The Board requested the staffs recommendation Director Friedman reviewed the terms for compliance, stated staff was willing to work with respondent to come into compliance, and that if the Board's decision hinged upon the definition of commercial enterprise that expert witnesses from the Planning Department could be brought in to testify as to the definition. Attorney Joslin objected to this case being delayed further. The Board discussed the case further. A member of the Board commented Freedom House had been referred to in early documents as an ALF, which was a very hot topic in many cities, and stated from experience as a landlord what landlords were allowed to do, and expressed his opinion that this was a commercial entity. Another Board member disagreed Further discussion included opinions that the City did not present enough evidence to show commercial activity although Board members believed it was a commercial entity. Deferral of the case to obtain further testimony was discussed Neil Lewis made a motion to find respondent in Case No. 99 -488, 99 -489, 99 -490 and 99- 491 not in violation of acting as a commercial entity or commercial activities going on at the locations of 385 Gardens Boulevard, 584 Holly, 588 Holly Drive, and 592 Holly Drive. John Little suggested an addition to the motion that any further activity or new evidence arises that staff could bring this back to the Board The maker of the motion stated he would stay with his original motion Motion died for lack of a second- Kevin Wagner suggested rephrasing to find there was no evidence that respondent was currently operating as a commercial entity. Deferment was suggested and discussed John Little made a motion that in Case No. 99 -488, 99 -489, 99 -490 and 99 -491 that Respondent, Mr. Jack DeMarco, be found not in violation of acting as a commercial entity at these locations: 385 Gardens Boulevard, 584 Holly, 588 Holly Drive, and 592 Holly Code Enforcement Board Meeting Minutes February 7, 2000 Page 8 Drive because of a lack of evidence thereof. Counsel advised the motion might be reworded to dismiss this case because of lack of evidence. Discussion ensued A comment was made that the same case could not be presented again but if the City found out different facts it could be re- presented MOTION Kevin Wagner passed the gavel to Neil Lewis and made a motion to dismiss this case for lack of evidence. John Little seconded the motion. Motion carried 4 -2. ADJOURNMENT There being no further business to discuss, motion was made and seconded to adjourn and carried by unanimous vote. s Code Enforcement Board Meeting Minutes February 7, 2000 Page 9 CODE ENFORCEMENT BOARD MINUTES APPROVAL DATE: Kevin Wagner Pete Miskovich Neil Lewis avulv,"Uy X W