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9-28-15 Special Called Meeting MINUTES OF SPECIAL CALLED MEETING OF ATLANTIC BEACH CITY COMMISSION HELD ON SEPTEMBER 28, 2015 PRESENT: Mayor Carolyn Woods Mayor Pro Tem Mark Beckenbach Commissioner Jonathan Daugherty Commissioner Jimmy Hill Commissioner Maria Mark ALSO: Nelson Van Liere, City Manager Rich Komando, City Attorney Donna L. Bartle, City Clerk Nancy E. Bailey, Recording Secretary Court Reporter for Appellants Call to order. Mayor Woods called the Special Called meeting to order at 5:02 p.m. in the Commission Chamber. She asked that the Commission disclose any ex parte communications they have had. Commissioner Mark stated she spoke with Dr. Doward before the last Commission meeting and received a package of information from him that included a letter he wrote to Dan Arlington and the Alta Engineering building envelope evaluation. She further disclosed she received an email correspondence from the attorney who is representing Bosco in a separate lawsuit that is involving the prior business relationship Dr. Doward had with Bosco at that time. Commissioner Hill disclosed Dr. Doward had contacted him that this matter was coming before the Commission but they didn't talk about any of the details other than that there was an issue with the siding. He stated he received the same package from Dr. Doward in the mail but did not get anything from Bosco. Commissioner Daugherty disclosed he received a phone call from Brian Platick, realtor, asking him to talk to the doctor. He stated he also received the same packet and emails everyone has received. Commissioner Beckenbach disclosed he received a phone call and the packet with the building envelope evaluation. Mayor Woods disclosed that she also received the packet from Dr. Doward and had a conversation with him. City Attorney Rich Komando asked the Commission to acknowledge whether the packet and the conversations they received will not impair their ability to make a fair and equitable ruling in this case. Commissioner Daugherty stated he didn't even look at it. Commissioner Hill stated there was no information that they didn't gather from the publicly noticed meeting that was in any part of the conversation. He stated he forgot to mention that they all heard from both parties briefly during the last meeting. Mr. Komando stated both parties are here tonight and both received notice of tonight's hearing. He asked Building and Zoning Director Jeremy Hubsch to outline some of the procedures and what occurred that got us here this evening. 1. Appeal of Variance Approval-15-ZVAR-1035 Mr. Hubsch summarized the background and overview of the variance showing slides of the site and building. He answered questions from the Commission. Troy Roarke, 620 Turning Leaf Avenue, St. Johns, The House Authority Inspection Service, home inspector for the Roys, gave his background and qualifications. Christopher Iseley, attorney for Dr. Doward, objected to new evidence presented before the Commission today that was not previously presented to the Board to render the decision which is on appeal today. Anjna Roy, 90 Ocean Blvd., stated her objection to Mr. Iseley is that this is not new evidence explaining she has the transcript from the July 21 hearing, a copy of which she gave to the Commission and the City Clerk, where she mentioned Mr. Roarke conducting this home inspection. Mr. Komando stated they are jumping all over the place and they have a lot of lawyers here and he believes everyone understands that the formal rules of evidence don't apply to a quasi judicial hearing. He asked they explain to the Commission the basis for their appeal. Mrs. Roy stated the basis for her appeal is basically that it is in violation of the Code. Mr. Komando clarified that her position is that the Community Development Board's (CDB) decision on 7/21/15 violates the Code. He asked that she tell the Commission why Mr. Roarke's testimony is important. Mrs. Roy stated CDB member Elmore and Ron Woods discussed the habitability of 90 Ocean Blvd. and alluded that their house had mold and water intrusion issues without any independent inspection. Mr. Komando further clarified that her position is that the decision to grant the variance was based on this incorrect information. Mrs. Roy stated yes. Mrs. Roy answered questions from the Commission. Mr. Roarke stated he did a mold assessment and water intrusion assessment on 90 Ocean Blvd. on July 31 and there were no visible anomalies and no visual evidence of moisture intrusion but there was a leak from the roof. He also reported the mold inspection came back in good quality. He answered questions from the Commission. Anjna Roy, 90 Ocean Blvd. stated she and her husband are the appellants in the case. She presented her case stating the applicant does not have valid grounds for a variance. She stated if the applicant had applied for a building permit this would not have happened because he would have followed Code. She stated since there is not a valid basis for granting a variance, it was improper for the CDB to grant one and the Commission is obligated to reverse the CDB's decision. Dr. David Doward, 88 Ocean Blvd. presented his case, stating it has been over 2 V2 years that he has not been able to live in his house. He stated it is really difficult when you try to do the right thing and you have people working against you. He stated he hopes the Commission will uphold the variance. Mr. Komando stated the Roys have provided an affidavit from Brett Newkirk and also an IAQ Mold Assessment Report and asked Dr. Doward if he had copies of those reports. Dr. Doward stated he did not have copies. Mr. Komando gave Dr. Doward two reports that had been presented tonight and asked if, before we finish tonight, he had any response to those reports. Dr. Doward stated he has not read them but Brett Newkirk did a report that said this engineer was brought in to say what the problems are in this building. He stated the problems are: you have a massive water intrusion problem, you need to take off all the stucco, take out all the windows, doors and scuppers and redo the roof. He stated if you -2- want to put stucco back on it, good; you need to put something back on it. He stated if Brett Newkirk is standing by his report and that is what he said as his analysis of the building, he agrees with him. Dr. Doward stated this is a preliminary report; Mr. Newkirk wasn't a part of renovating and he also doesn't know the other extensive structural issues, but because they did their work, they are aware of it; and it would probably alter his decision as well. He stated as far as the mold report; people get paid to say whatever. Mr. Komando asked if there was anything else Dr. Doward wanted the Commission to consider tonight. Dr. Doward stated he believes that wraps it up. He stated if there are any issues the Commission wants clarification on, he has his team of experts here to clarify. He stated he would like Ron Woods to speak to clarify the issues. Mayor Woods stated there is a report that said there were a lot of mold issues and asked if that report was done on both sides of the property and what year that was. Commissioner Mark stated that is the Alta report that was dated August 27, 2012. She stated the original owner and the Roys had requested this evaluation. Mr. Komando stated, if the Commission is not already aware, there is a separate civil litigation and there was a settlement related to that issue. Dr. Doward stated there was a Remkiss report that described a bunch of mold in both buildings, originally. Mayor Woods asked what year that was done. Dr. Doward stated he believes that was done when the Alta report was done; he doesn't have it with him. He stated it was before he bought the property. He stated he didn't base his renovations on a mold report; he based them on a structural report, which was the Alta report. Anjna Roy objected to any new evidence that Mr. Woods will testify to. Commissioner Daugherty asked the City Attorney if they are allowed to hear new evidence. Mr. Komando stated you can; both sides need to have an opportunity to respond and provide any rebuttal. Ron Woods, consulting engineer for Dr. Doward, stated everything he said in the previous meeting had to do with the Alta report with regard to this particular residence. He further explained the issues of using stucco on this building because of its proximity to the beach and why he would not recommend its application. He answered questions from the Commission. Mr. Hubsch explained the permitting issue, stating there was initially a permit to do the stucco siding but Dr. Doward changed his contractor and at that point they did not permit the change to lap siding and when the City staff saw the lap siding they put a stop work order in. Mayor Woods asked if a permit would be required to change siding from stucco to lap siding. Mr. Hubsch stated yes,they would need a siding permit for that. He stated there is some miscommunication about how this went down. He stated they had an active permit on the stucco and when the contractor switched, the applicant's representative said they came in to our front-end staff and said they were getting a new contractor and they allege that our staff said they don't need to update the original permit, which is why we didn't see that it switched from stucco to lap siding. He stated later they were out in the field and someone saw it and put the stop work order on it. He answered questions from the Commission. Commissioner Hill asked, in an unrelated normal remodel permitting, if there wasn't a neighbor who had a dispute with it, would they have to re-permit if they found out that stucco hadn't been adequate and they wanted to switch to hardy planking. Building Official Dan Arlington stated yes and explained there would have been two permits; an interior remodeling permit and then a siding permit. Commissioner Hill asked if they had a siding permit and were underway and switched siding materials does it require another permit. Mr. Arlington stated, yes,they would have to know that to make sure the -3- products met the Florida product approval. He stated there is a Florida Statute that requires Florida product approval on all products on the exterior of a building and staff needs to see the Florida product approval numbers and documents for each material. Mr. Woods explained the difference in stucco and lap siding related to how they handle water that comes into the side of a building. Mr. Komando asked if there was any rebuttal evidence either party wanted the Commission to consider. Mrs. Roy gave her rebuttal. She and her husband, Saswata Roy, answered questions from the Commission. Discussion ensued. Dr. Doward gave his rebuttal. He reiterated they never tried to not bring in the permits and drawings for the change from stucco to lap siding. He stated his contractor and architect came in personally. He stated they brought in those permits and were told by the clerk that they did not have to submit these plans and they thought they were actually helping them out because they have had so many problems with the building, stating he wanted to make that clear, for the record. Mr. Komando stated the reason they are here is to decide, if they look at the related ordinances under 24-49 (b), whether or not the decision that is being appealed is in conflict with or in violation of this Chapter. He stated at this point, so the record is clear, the options of the Commission are to grant the appeal and reverse the Community Development Board's decision which approved the variance or to deny the appeal and uphold the Community Development Board's decision based upon the grounds that are in the second section of the related ordinances under 24-64 for variances, under either subsection (c) 1-7 or (d) 1-6. He asked if there was anything else either of the parties thinks the Commission should consider. He stated he believes due process was afforded tonight. Eric Andeer, Attorney for the Roys, stated the Commission has heard a lot of testimony today about things that have nothing to do with their determination. He stated this is solely about whether or not the variance that was granted adheres to the Code here in Atlantic Beach. He stated it is the Roys' position that it does not adhere to the Code. He stated the variance itself says that it was granted because of circumstances preventing a reasonable use of the property as compared to other properties in the area. He stated the unequivocal evidence before them is that the Roys live in a building that is attached to Dr. Doward's and their use and enjoyment of their property is not affected at all by the fact that they have stucco on the building. He asked that they consider only that which is relevant that they have heard today. He stated it is the Roys' position that if they do that they will overturn and decide that this order granting this variance is improper and not in accord with the rules that govern this lovely beachside community. Commissioner Hill asked what is the next step available to both sides if they choose to carry this matter on or is the Commission the final word in this no matter what. Mr. Komando stated the decision of the appeal can be appealed to the Circuit Court. Motion: Grant the appeal and reverse the decision of the Community Development Board. Moved by Daugherty -4- The Motion failed for lack of second. Motion: Deny appeal and uphold the Community Development Board's decision based on Section 24-64 under subparagraph (d), subparagraph (3), grounds for approval of a variance creates exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area. Moved by Mark, Seconded by Hill Discussion ensued. Commissioner Hill asked if the Commission's action will in any way relieve the requirement on that unit permanently or does the other side have to come to that standard now. He stated they don't want to start another battle where they both have to match for other reasons. Mr. Komando stated if the variance is upheld then they will be different at this point going forward anyway so if the other side is made to match it would comply with our Code so he doesn't see that it would be an issue either way. Commissioner Beckenbach asked if both colors would have to be the same with this variance. Mr. Komando stated yes. Votes: Aye: 4—Beckenbach, Hill,Mark,Woods Nay: 1 -Daugherty MOTION CARRIED Adjournment There being no further discussion by the City Commission, Mayor Woods declared the meeting adjourned at 6:29 p.m. ATTEST Carolyn Woo.4 Avniet, VAIZet, Mayor Donna L. Bartle, CMC City Clerk -5-