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4-29-97 CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD AGENDA 7:30 P.M., APRIL 29, 1997 Call to order Pledge of Allegiance to the Flag Roll Call 1. Approval of the Minutes of the Regular Meeting held March 4, 1997. 2. Recognition of Visitors and Guests regarding any matters that are not listed on the agenda 3. OLD BUSINESS: 11110 Code Enforcement Official Karl Grunewald will present follow-up reports on the following properties: Case No. 97-5532-Pulte Home Corporation/North Florida Classic Homes-West 5th Street. The owner of the property is in violation of Chapter 23, Section 23-17 Code of the City of Atlantic Beach in that there exists on the premises located at West 5th Street the following condition(s): trees were removed from the property not authorized for removal by the Tree Conservation Board - clear cut the property. During the January 28, 1997 Special called meeting, the Code Enforcement Board imposed a $5,000.00 fine on Pulte Home Corporation which was paid. During the March 4, 1997 Code Enforcement Board Meeting, it was reported that Pulte Homes had offered to plant trees in Section H, as recommended by the Tree Board, and were in negotiations at that time. Case No. 97-5489-Gordon Ogburn, 440 Ocean Boulevard. The owner of the property is in violation of Chapter 24, Section 157 and Chapter 24, Section 24-65-(c) Code of the City of Atlantic Beach in that there exists on the premises located at 440 Ocean Boulevard the following condition(s): a fence over six feet prohibited and permit required i.e., the fence is over six feet tall and no permit for installation is on file. During the March 4, 1997 Code Enforcement Board Meeting, the Board found Mr. Ogburn in Code Enforcement Board Agenda Page-2- violation of Chapter 24, Sections 157 and 65-(c) of the Code of the City of Atlantic Beach and to assess an amount of$100.00 for the city's administrative expenses involved in processing the case. Case No. 96-4629-Willie Knight- 790 Sailfish Drive. The owner of the property is in violation of the Standard Plumbing Code Sections 601.2 and 604.3 and Chapter 22, Sections 22- 41 and 22-29, Failure to Pay Past Due Bill of the Code of the City of Atlantic Beach in that there exists on the premises located at 790 Sailfish Drive the following condition(s): failure to be connected to an approved water system and failure to pay past due water bills. During the July 2, 1996 Code Enforcement Board Meeting, Mr. Knight was found to be a repeat offender in violation of the Standard Plumbing Code and Chapter 22, Sections 22-41 and 22-29 of the Code of the City of Atlantic Beach. The Board voted to imposed a one time $500.00 fine on Mr. Knight for said violations and to remove the water meter serving the property as of July 3, 1996 to eliminate the possibility of a cross-connection. Recent routine inspection of the property has revealed the house on the property to be unsafe, uninhabitable, and generally run down, with broken windows and unsecured trash littering the premises. 4. NEW BUSINESS: Case No.97-5603-Bill Williams, President,Beaches Aquatic Pool, Inc., 297 Aquatic Drive. The owner of the property is in violation of Chapter 12, Section 12-01-03 and Section 12-01-04 Code of the City of Atlantic Beach in that there exists on the premises located at 297 Aquatic Drive a/k/a Tract 3, Aquatic Gardens, the following condition(s): trash and rubbish floating on the water and in the vegetation on the pond, i.e., an accumulation of paper, plastic bottles and similar items floating in the pond. During the November 12, 1996 Code Enforcement Board Meeting, Bill Williams, the registered agent for Beaches Aquatic Pool, Inc., was found to be in violation of Chapter 12, Section 12-01- 03 of the Code of the City of Atlantic Beach. No fine was levied against the property because it was brought into compliance. However, if it was found to be in non-compliance of Section 12- 01-03 in the future, it was determined a fine may be levied by the Board from the day the property is found to be in non-compliance by the Code Enforcement Official until compliance is reached to the satisfaction of the Code Enforcement Official. Code Enforcement Board 4fi, Agenda Page -3- Case No. 97-4237-Linzy C. Lane, 1970 Park Street. The owner of the property is in violation of Chapter 12, Section 12-01-08 of the Code of the City of Atlantic Beach in that theere exists on the premises located at 1970 Park Street the following condition(s): The building has fallen into a state of disrepair and is in an unsanitary and unsafe condition. It appears the owner has abandoned the property. 5. REQUEST FOR LIEN ACTION: Name Address Amount of Lien 6. BOARD MEMBER COMMENTS: • 7. ADJOURNMENT S • CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD MINUTES APRIL 29, 1997 Call to order: PRESENT: Edward Martin, Chairman Ken Rogosheske Theo Mitchelson Lou Etta Waters Richard S. Mann Tammy Deitchman ABSENT: Heywood (Pete)Dowling AND: Suzanne Green, Prosecuting Attorney Alan C. Jensen, City Attorney Karl Grunewald, Code Enforcement Officer Julie M. Brandt, Secretary The meeting was called to order at 7:30 p.m. by Chairman Ed Martin, followed by the Pledge of Allegiance to the Flag by all present. Board Member Dowling asked permission to be excused • due to a family emergency and left the meeting at 7:35 p.m. Chairman Martin congratulated Code Enforcement Officer Grunewald on attaining a State of Florida Level III Certification in Code Enforcement. 1. Approval of Minutes of March 4, 1997 The minutes of the Regular Code Enforcement Board Meeting of March 4, 1997 were approved as presented. 2. Recognition of Visitors and Guests regarding any matters that are not listed on the agenda. No one wished to speak. 3. OLD BUSINESS: Case No. 97-5532-Pulte Home Corporation/North Florida Classic Homes-West 5th Street. The owner of the property is in violation of Chapter 23, Section 23-17 Code of the City of Atlantic Beach in that there exists on the premises located at West 5th Street the following condition(s): trees were removed from the property not authorized for removal by the Tree CConservation Board - clear cut the property. I • Minutes Page -2- Code Enforcement Board April 29, 1997 Code Enforcement Officer Grunewald reported during the January 28, 1997 Special called meeting, the Code Enforcement Board imposed a $5,000.00 fine on Pulte Home Corporation which was paid, and during the March 4, 1997 Code Enforcement Board Meeting, Pulte Homes offered to plant trees in Section H, as recommended by the Tree Board, and were in negotiations at that time. Mr. Grunewald passed around a letter from Pulte Home asking that the Tree Board postpone any action on mitigation until the June Tree Board Meeting to allow Pulte Homes the extended time to establish the integrity of their intentions. Case No. 97-5489-Gordon Ogburn, 440 Ocean Boulevard. The owner of the property is in violation of Chapter 24, Section 157 and Chapter 24, Section 24-65-(c) Code of the City of Atlantic Beach in that there exists on the premises located at 440 Ocean Boulevard the following condition(s): a fence over six feet prohibited and permit required i.e., the fence is over six feet tall and no permit for installation is on file. To update the Board, Code Enforcement Officer Grunewald reported that during the March 4, 1997 Code Enforcement Board Meeting, the Board found Mr. Ogburn in violation of Chapter 24, • Sections 157 and 65-(c) of the Code of the City of Atlantic Beach and assessed him an amount of $100.00 for the city's administrative expenses involved in processing the case. It was further reported that Mr. Ogburn paid the $100.00. Case No. 96-4629-Willie Knight- 790 Sailfish Drive. The owner of the property is in violation of the Standard Plumbing Code Sections 601.2 and 604.3 and Chapter 22, Sections 22- 41 and 22-29, Failure to Pay Past Due Bill of the Code of the City of Atlantic Beach in that there exists on the premises located at 790 Sailfish Drive the following condition(s): failure to be connected to an approved water system and failure to pay past due water bills. To recap the Knight Case, Code Enforcement Officer Grunewald reported that during the July 2, 1996 Code Enforcement Board Meeting, Mr. Knight was found to be a repeat offender in violation of the Standard Plumbing Code and Chapter 22, Sections 22-41 and 22-29 of the Code of the City of Atlantic Beach. The Board imposed a one time $500.00 fine on Mr. Knight for said violations and had the water meter serving the property removed as of July 3, 1996, to eliminate the possibility of a cross-connection. It was reported the property has been cleaned up and properly connected to the city's water system, and was in the process of being sold. The title company handling the property is aware of the $500.00 fine. 4. NEW BUSINESS: IF I • Minutes Page -3- Code Enforcement Board April 29, 1997 In reference to case No. 97-5603, Chairman Martin stated the duty of the Code Enforcement Board, as a quasi-judicial body, was to determine if a violation of the city code exists and not to establish ownership of property, which is outside the jurisdiction of the board. Case No.97-5603-Bill Williams, President, Beaches Aquatic Pool, Inc., 297 Aquatic Drive. The owner of the property is in violation of Chapter 12, Section 12-01-03 and Section 12-01-04 Code of the City of Atlantic Beach in that there exists on the premises located at 297 Aquatic Drive a/k/a Tract 3, Aquatic Gardens, the following condition(s): trash and rubbish floating on the water and in the vegetation on the pond, i.e., an accumulation of paper, plastic bottles and similar items floating in the pond. Chairman Martin read the case procedures and all witnesses in the case were sworn in. Prosecuting Attorney Green read the charges against Beaches Aquatic Pool, Inc. and stated that Mr. Grunewald would testify before the Board concerning the long history of the property and that he would present a second violation citing the President of Beaches Aquatic Pool, Inc. for • trash and rubbish floating on the pond and as to the date the occurrence took place. Code Enforcement Officer Grunewald stated that during the November 12, 1996 Code Enforcement Board Meeting, Bill Williams, the registered agent for Beaches Aquatic Pool, Inc., was found to be in violation of Chapter 12, Section 12-01-03 of the Code of the City of Atlantic Beach. At that time no fine was levied against the property because it was brought into compliance. However, the Board determined if it was found to be in non-compliance of Section 12-01-03 in the future, a fine may be levied from the day the property is found to be in non- ) compliance, which was January 30, 1997. After the update, photos taken April 2, 1997, of the subject property were passed out showing the floating debris and pond vegetation. Mr. Grunewald stated Mr. Williams was served notice of the violation on February 17, 1997, which was signed for by his wife, June Williams. It was further reported as of today's date, the pond was in much the same condition as depicted in the photos. Mr. Grunewald stated he had contacted the St. Johns County River Water Management District concerning the pond vegetation and was told it was a natural occurance and posed no health problem, and the property owner would have to decide to remove it or not. Code Enforcement Officer Grunwald further reported the property owner was responsible for the upkeep of his property, regardless the source of the trash and debris and regardless the fact the property is a pond. In its present condition, Mr. Grunwald indicated the property posed a health hazard to those who live adjacent to the pond. C • Minutes Page-4- Code Enforcement Board April 29, 1997 Chairman Martin inquired as to the date of the pictures and the present condition of the pond. Code Enforcement Official Grunwald stated the pond was in the same condition as shown in the pictures except that some of the vegetation had disappeared. Theo Mitchelson inquired as to the ownership of the property in question and was informed by Chairman Martin the owner according to the tax records was Beaches Aquatic Pool, Inc., represented by Bill Williams. Code Enforcement Officer Grunewald pointed out ownership of the property was clarified by City Attorney Jensen in his letter dated March 14, 1997, which is attached and made part of this official record as Attachment A. Mr. Mitchelson then inquired if any decision had been made by the City Commission to assume responsibility for maintenance of the pond and was told it had no assumed any responsibility for the maintenance. At this point, Chairman Martin reiterated the Board was not meeting to determine ownership of the property. Alan W. Potter of 374 Second Street, Vice-President of Beaches Aquatic Pool, Inc., spoke on • behalf of Beaches Aquatic Pool. Mr. Potter read a prepared statement concerning his proposed testimony in response to: the letter of notice dated 1-30-97, the subpoena dated 3-24-97 and letter of notice and order dated 3-24-97 and steps to be taken should the decision by the Board be appealed. Chairman Martin stated that Mr. Potter could present evidence as long as it dealt with the violation, not with ownership of the property. However, Mr. Potter then stated he may make reference of necessity to certain items concerning the dedication of the pond to create a record for appeal should it become necessary. Chairman Martin stated this would be acceptable as long as it was relevant to the subject at hand. Mr. Potter continued by stating Beaches Aquatic Pool, Inc. does not deny they own the land under the pond and contend based upon the law of the public record that the city owns an easement over the land and the enjoyment of that easement has caused the dispute. Continuing, Mr. Potter stated that he wanted the record to reflect this information because Florida Statutes state the entire case must be presented before the Code Enforcement Board, not a circuit judge, who will only review on appeal. Chairman Martin responded to Mr. Potter and stated the Board would decide if a violation of Chapter 12 Sections 12-1-4 and 12-1-3 exists and nothing else. . Mr. Potter responded that the question was who did the violation- Beaches Aquatic Pool or the 110 City of Atlantic Beach? Chairman Martin replied the only person the Board could look to is the • Minutes Page-5- Code Enforcement Board April 29, 1997 owner of record. If the property is found to be in violation, then the owner of record, which in this case is Beaches Aquatic Pool, Inc., will be cited. It was pointed out the issue was not who committed the violation. Mr. Potter then replied that he wished to establish whose water is on the pond and whose water is holding the trash. Chairman Martin then stated he was not interested in whose water was on the pond. He further stated the legal owner of the pond is Beaches Aquatic Pool, Inc. and advised Mr Potter he could establish all the case he wanted on whether or not there is a violation of the code, but the Board will not allow him to establish a record for something beyond its jurisdiction. Mr. Potter then stated he would skip that portion of the presentation but wished to enter his entire presentation into the record for purposes of appeal, if necessary. Chairman Martin then asked for a legal opinion on this request. Prosecuting Attorney Green stated for the purposes of an evidentiary matter, the city would object to the admission of his statement on relevancy grounds for the purpose of this hearing. The Board was advised they could accept the statement and admit it into the record, but there will be an objection to anything presented which is not relevant. Mr. Potter then stated that Beaches Aquatic Pool, Inc. believes the allegations of Mr. Karl Grunewald, Code Enforcement Officer for the City of Atlantic Beach, improperly identified Beaches Aquatic Pool, Inc. for the alleged violations. Information was reviewed for relevancy by Prosecuting Attorney Green and then given to the Board by Mr. Potter. All information presented by Mr. Potter is attached and made part of this official record as Attachment A. Mr. Potter stated the organization was not in violation of Section 12-1b(4)because the water in the retention pond is not stagnant, there are no mosquito larvae and the waters are home to fish and other wildlife. Mr. Potter also stated the organization was not in violation of Section 12- 1B(3) because the retention pond receives stormwater flow containing garbage and debris from all areas in Aquatic Gardens Subdivision. Mr. Potter also pointed out other sources of debris and garbage that end up in the pond and stated the Code Enforcement Officer had not been able to prove any member of Beaches Aquatic Pool deposited rubbish and litter into the retention pond and asked that both violations referenced be dropped. Attorney Green showed Mr. Potter a copy of the tax rolls indicating the owner of the property (retention pond) to be Beaches Aquatic Pool, Inc., and asked if they were the owners of Tract 3, Aquatic Gardens and Mr. Potter replied yes. Attorney Green then inquired if there was rubbish • Minutes Page -6- Code Enforcement Board April 29, 1997 floating on the pond as of today and Mr. Potter stated there was rubbish(plastic bottles, trash, paper, etc.)floating on the pond. Thirdly, Mr. Potter was asked if there were young children playing in the area, and Mr. Potter stated he did not know the ages of the children, but they did play in the area and fish in the pond. Attorney Green then asked if was true the rubbish had been in the pond for at least three months , and Mr. Potter replied that it probably had been in the pond three months and perhaps longer. Attorney Green then inquired as to germs accumulating in the rubbish and Mr. Potter replied that neither Mr. Grunewald nor he had identified any germs in the pond. At this point, Chairman Martin asked the Board if they had any questions for Mr. Potter and no one spoke. Mr. Potter then inquired as to Code Enforcement Official Grunewald's credentials and Mr. Grunewald indicated he had among other certifications more than twenty years of experience, including a Level III Certification in Code Enforcement. Mr. Potter then asked if Mr. Grunewald was trained as a biologist or virologist and he stated he was not. Prosecutor Green objected to 1116 the question on the grounds of relevancy. Mr. Potter continued with regard to germs and the Nuisance Ordinance terminology concerning"a detriment to public health"..., and Mr. Potter then asked if Mr. Grunewald was qualified to confirm the presence of any harmful bacteria or viruses in the pond as a result of the floating plastics. Mr. Potter then inquired as to how ownership of the property was determined and Mr. Grunewald stated the information was obtained from the Duval County Tax Roll. He then asked if Mr. Grunewald had ascertained that the City was the beneficiary of a perpetual easement over Tract 3, and Mr. Martin stated the question would not be allowed. Considerable discussion concerning the pond continued with Mr. Potter quoting from the Nuisance Ordinance and stating Mr. Grunewald was not qualified to determine if the pond was in fact"a detriment to public health". Prosecuting Attorney Green objected and stated Mr. Grunewald was not an expert witness, but a fact witness who brought information to the Board of what he observed. At this point, Mr. Potter objected to being accused of something that might be harmful which has not occurred he concurred the pond was unsightly, but maintained it was not injurious to the health of anyone. Mr. Potter then passed out photos of the pond taken on April 2, 1997. After viewing the pictures, Mr. Potter stated Beaches Aquatic Pools, Inc. had limited funds and no action should be taken against them to pay a fine or maintain the pond, which he contended should be maintained I by the City, because the expenses would limit the ability of the organization to provide programs for the public. I Minutes Page -7- Code Enforcement Board April 29, 1997 After a cursory review of a document given each Board Member, Prosecuting Attorney Green stated for the record she had been handed a composite exhibit entitled"Alan W. Potter, Sr." and indexed to the documents and objected to the document on grounds of hearsay, relevancy and duplicity. Chairman Martin then asked Mr. Potter if any of the documents presented addressed whether or not the pond is in violation, and he replied yes and referenced the copy of the Vortex contract for spraying of the pond between 1983 and 1995. At this point, Chairman Martin asked Code Enforcement Official Grunewald for his definition of "well being" as found in Section 12-1(3)...which may be injurious to the health and well-being of the community. Code Enforcement Official Grunewald stated that from past experience as a Code Enforcement Officer, when there is trash and rubbish which accumulates, whether on water or on the ground, it breeds germs, mosquitoes, etc. Code Enforcement Official Grunewald pointed out the section does not specifically say Mr. Potter or anyone threw the trash in the pond, but states for any person to allow, suffer or permit this to happen. It was also pointed out ® the section stated" ... which may be injurious(with emphasis on may be)..." Mr. Grunwald then stated it does not have to be injurious to the health and well-being of the community, but shall be unlawful to deposit rubbish of any kind which may be injurious...also, it was emphasized in Section 12-1(4)with regard to the water in the pond, that"necessary precautions to prevent the propagation of mosquitoes therein" should be taken, and Beaches Aquatic Pool had not done so. At this point, Mr. Potter objected and stated Mr. Grunewald was not describing the pond as it now exists. Board Member Rogosheske then asked Mr. Potter if Beaches Aquatic Pool, Inc. had been cited before and Mr. Potter stated that they were previously cited for weeds, which were mowed. The present citation is a new violation, has nothing to do with weeds, and never occurred before. Mr. Rogosheske also indicated he had viewed the pond on the nightly news and saw all of the floating debris and heard the neighbors' complaints asked Mr. Potter if it was Beaches Aquatic Pools view of maintaining a neat and orderly property? Mr. Potter replied it was not, however, the organization had tried to work the problem out with the city and even offered the pond property to the city for a park on three different occasions because the property served no purpose to Beaches Aquatic Pool. Mr. Rogosheske then asked Mr. Potter if Beaches Aquatic Pool, Inc. owned the property and he stated it was his contention they owned the land under the pond, but not the water. Mr. Potter then explained that recent heaving rains conveyed rubbish and debris into the pond from other areas and his organization could not be responsible for trash flowing in from the other areas. S • Minutes Page -8- Code Enforcement Board April 29, 1997 In closing, Mr. Potter stated Beaches Aquatic Pool, Inc. had been in existence since 1963 to provide a public service not provided by any other group in Atlantic Beach and has limited funds to provide its programs for youth of the area. He further stated the organization derives no 1 benefit from the pond, was not involved in the construction of the pond and is being harassed by the city to maintain it. Mr. Potter continued that Beaches Aquatic Pool, Inc. did not own the pond until 1987 and he does not know how or why it was deeded to them at that time by the developers of the condominiums adjacent to the pond property. It was also stated that no member of the pool put any of the trash and rubbish into the pond. Mr. Potter maintained Beaches Aquatic Pool, Inc. was not in violation because he did not agree with the city's strict interpretation of ownership of the land under the pond. Prosecuting Attorney Green then stated, in response to Mr. Potter's comments concerning the prior ruling by the Board on November 13, 1996, the Board did find that Beaches Aquatic Pool, Inc. was in violation of Section 12-1 (3), the same subsection now being cited, and therefore this is a second violation. Prosecuting Attorney Green pointed out that during the testimony given, Mr. Potter admitted to the trash and rubbish being in the pond and did not deny that it has • been there for several months. Mrs. Green continued by stating that the Board must now determine whether the condition that exists"enhances the well-being of the community or does not enhance the well-being, and therefore, may be injurious to the health and well-being of the community". In conclusion, Prosecuting Attorney Green asked the Board to find Beaches Aquatic Pool, Inc. in violation and assess a second time violation beginning from January 30, 1997, when he was notified of the violation. Chairman Martin then asked Prosecuting Attorney Green to address Section 12-1 (4)and the question of stagnant water. Mrs. Green clarified the terminology for the Board. Mr. Potter objected to the use of the word"enhance" and the verbiage"may cause harm" because he believed there was no evidence of past, present or future harm caused by the pond. Board Member Deitchman inquired as to the date of the previous violation and was told November 13, 1996 the Board found if there was another violation of Section 12-1 (3), they would assess a fine from the day the property was found to be in non-compliance by the Code Enforcement Officer until compliance is reached by the Code Enforcement Officer. Bill Williams, President of Beaches Aquatic Pool, Inc., addressed the Board and stated the first violation dealt with weeds, not trash in the pond and questioned if this was a second violation of the ordinance. He also stated he would clean the pond under duress because they cannot use the property and had to money to pay for maintenance of the pond. He also stated he believed the 410 city should be responsible for cleaning the pond. Minutes Page -9- %iv Code Enforcement Board April29, 1997 June Williams, wife of Bill Williams, was sworn in at this time, and stated that due to limited funds, she donates her time to Beaches Aquatic Pool, Inc. and the organization has not paid property taxes on the pond in three years. After hearing their testimony, Chairman Martin stated it was not the object of the Board to levy great fines or put a financial hardship on Beaches Aquatic Pool, Inc. After some further discussion concerning the duties of the Code Enforcement Board, a motion was made by Theo Mitchelson and seconded by Ed Martin to find Beaches Aquatic Pool in violation of Sections 12-1 (3) and 12-1 (4) of the Code of Ordinances. Under discussion, it was determined the Board wished to decided each section separately and Section 12-1 (4) was withdrawn from the motion. There being no further discussion, the motion carried unanimously. The wording stagnant water was discussed with several members having problems applying the terminology to the pond. After some further discussion, a motion was made by Theo • Mitchelson, seconded by Ed Martin and failed by a three to three tie vote to find Beaches Aquatic Pool in violation of Section 12-1 (4),with Board Members Deitchman, Mann and Martin voting nay. At this point in the meeting discussion ensued concerning if violation of Section 12-1 (3)was a first or second offense. After considerable discussion, a motion was made by Chairman Martin, seconded by Theo Mitchelson and unanimously carried to find Beaches Aquatic Pool in a first offense violation of Section 12-1 (3) in that the offense was trash, not weeds. Discussion ensued concerning the amount of time needed to correct the violation, and Alan Potter stated they needed a minimum of seven days because the volunteer labor would need to work on the weekend. A motion was made by Chairman Martin and seconded by Ken Rogosheske to establish a fine for a violation of any part of Section 12-1 (3)would result in a $25.00 per day fine to take effect the day the citation is issued and allow seven days to bring the property into compliance and if it is not done in seven days, impose a fine of$25.00 per day for each day the property remains in non-compliance until brought into compliance to the satisfaction of the Code Enforcement Officer. Some further discussion ensued with Board Member Mitchelson opposing the fine structure. It was the consensus of the Board to vote on each item separately and Chairman Martin withdrew the motion. • Minutes Page-10- Code Enforcement Board April 29, 1997 A motion was made by Chairman Martin, seconded by Ken Rogosheske and unanimously carried to establish a fine of$25.00 per day for a violation of any part of Section 12-1 (3) and the motion carried by a four to two vote with Board Members Deitchman and Mitchelson voting nay. A motion was made by Chairman Martin, seconded by Ken Rogosheske and carried by a five to one vote with Board Member Mitchelson voting nay, to give Beaches Aquatic Pool, Inc. until May 12, 1997 to bring the property into compliance or a$25.00 per day fine will be levied beginning May 13, 1997 for each day the property is in non-compliance and continuing until compliance is reached to the satisfaction of the Code Enforcement Officer. A motion to amend the motion was made by Board Member Mitchelson to levy a one time fine of$100.00 to be assessed against the party for whom the responsibility of the pond exists as determined by the City Commission and the city should take immediate steps,at the expense of the city, to eradicate the health hazard which has been identified the cost of which ultimately will be assessed against the responsible party, be it Beaches Aquatic Pool, • Inc. or the City of Atlantic Beach. The motion died for lack of a second. Case No. 97-4237-Linzy C. Lane, 1970 Park Street. The owner of the property is in violation of Chapter 12, Section 12-01-08 of the Code of the City of Atlantic Beach in that there exists on the premises located at 1970 Park Street the following condition(s): The building has fallen into a state of disrepair and is in an unsanitary and unsafe condition. It appears the owner has abandoned the property. Code Enforcement Officer Grunewald explained he was seeking authorization from the Board for the City to board up the building and photos showing the condition of the building were passed out. Chairman Martin inquired if the building was in the same condition as shown in the photos and Code Enforcement Officer Grunewald stated yes. Much discussion ensued concerning the state of disrepair of the building and a history of the property was given by Code Enforcement Officer Grunewald. Chairman Martin asked Mr. Lane what his plans were for the building since more than two years had gone by since initial repair efforts on the property had begun. Mr. Lane produced year old documents indicating payment for work which had not been completed and stated he did not have the money to continue the project at this time. After some further discussion, it was the consensus of the Board to give Mr. Lane the opportunity to properly secure the building. S Minutes Page-11- Code Enforcement Board April 29, 1997 A motion was made by Theo Mitchelson, seconded by Ken Rogosheske and unanimously carried to find Linzy C. Lane in violation of Chapter 12, Section 12-1-8 of the Code of Ordinances of the City of Atlantic Beach. A motion was then made by Chairman Martin, seconded by Theo Mitchelson and unanimously carried to give Mr. Lane five (5) days (until May 5, 1997) to secure the property at 1970 Park Street in a manner approved by Code Enforcement Official Grunewald. A motion was made by Theo Mitchelson, seconded by Tammy Deitchman and unanimously carried to fine Mr. Lane$10.00 per day for every day the property is in non-compliance after the May 5, 1997 date until compliance is reached to the satisfaction of the Code Enforcement Officer. Chairman Martin summarized the findings of fact. 5. REQUEST FOR LIEN ACTION: Name Address Amount of Lien None. 6. BOARD MEMBER COMMENTS: There were no comments 7. ADJOURNMENT There being no further discussion or business to come before the Board, the meeting adjourned at 9:25 PM. • Vkr„,(Aiti-7,.G.E. Martin, C ai Code Enforcement Board Attest: Qu &ond M. Brandt, Secretary ALAN W. POTTER, SR. DOCUMENTS COMPILED FOR ATLANTIC BEACH CODE ENFORCEMENT BOARD HEARING APRIL 29, 1997 INDEX TO THE DOCUMENTS 1. Letter to James R. Jarboe, City Manager, from City Attorney, Alan Jensen -- March 14, 1997. — 2. Letter from Maureen King, City Clerk, to Vortex Biological Services and Vortex contract-- May 9, 1994. 3. Beaches Leader& Shorelines newspaper articles -- five articles. 4. Memorandum from Robert S. Kosoy, Director of Public Works to Mr. Jim Jarboe, City Manager, and Ann Meuse, Finance Director--April 1, 1997. • JENSEN & HOULD ATTORNEYS AT LAW 708 NORTH THIRD STREET POST OFFICE BOX 50457 JACKSONVILLE BEACH.FLORIDA 32240-0457 • Alan C.Jensen Telephone(904)246-2500 Stephen A.HouldMarch 14, 1997 Fax(904)246-9960 Mr. James R. Jarboe, City Manager City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 RE: Aquatic Gardens Retention Pond Dear Jim: I am writing to you at the direction of the City Commission given at their meeting this past Monday, March 10, 1997. I have reviewed several documents in regard to the retention pond at Aquatic Gardens and it appears there is no question that the property on which the pond is located is owned by Beaches Aquatic Pool, Inc. The final plat for the Aquatic Gardens subdivision was approved by the Atlantic Beach City Commission on February 14, 1983. The Adoption and Dedication part of the plat dedicates to the City "...all street rights of way, private driveway easements, and easements for drainage, utilities, and sewers, together with all water and sewer utilities and drainage appurtenances lying therein..." I am of the opinion that this dedication does not include any retention pond on tract 3 shown on the plat. Although I have not reviewed the actual docu- ments, I believe the dedication language is fairly standard, used in other subdivisions such as Oceanwalk, and obviously the City does not maintain the retention ponds in other subdivisions. Furthermore, after approval of the final plat for the Aquatic Gardens subdivision, and pursuant to an agreement between Aquatic Gardens and the Beaches Aquatic Pool, Inc., tract 3 was deeded back to Beaches Aquatic Pool, who continues to own the property. I am not aware of any reason for the City to maintain a retention pond on private property. This matter was previously addressed by the City Commission on January 12, 1987, when the City was asked to accept the retention pond for maintenance. No action was taken at that time. Subsequently, at a City Commission on August 22, 1988, the City authorized the purchase of aerators for the retention pond and thereafter, in 1994, the aerators were removed by the City. It was therefore the City removing its own equipment and no "grand larceny" was involved. • I enclose copies of the minutes of the various meetings referenced above as well as memorandums from the Director of Public Works dated April 29 and June 28, 1994. I would Mr. James R. Jarboe, City Manager March 14, 1997 Page 2 t suggest that the City would be setting a dangerous precedent if it decided to maintain a privately owned retention pond for which it has no responsibility. In reviewing the petition signed by members of the Aquatic Gardens Association, they request that the City maintain the pond until the City and the pool end their lengthy battle over who is responsible for the pond and its upkeep is resolved. I would respectfully suggest that any battle over responsibility for maintenance and upkeep of the pond should be between Aquatic Gardens and Beaches Aquatic Pool. If I can provide any additional information or assistance'.^. this regard, please do not hesitate to contact me. Very truly yours, i/I / ALAN • JENSEN • Enclosures cc: Mayor and Commissioners (w/enc) Robert S. Kosoy, Director, Public Works ^-1 _ CITY OF c' _/ /� I j iitietsttie ' - T � . .: 800 SEMINOLE ROAD ATLANTIC BEACH,FLORIDA 32233-5445 TELEPHONE(904)247-5800 .Ø " FAX(904)247-5805 • May 9 , 1994 Vortex Biological Services 5800 Beach Blvd. #203, Suite 248 Jacksonville, FL 32207 RE: Bid No. 9394-9, Chemically Treat Ditches , Lagoons and Pond for One Year Dear Sir: The City Commission at its regular meeting of May 9 , 1994 has ‘pr- selected your firm as the lowest bid and best bid for the above mentioned project. You have already received, or shortly will receive, a Purchase Order reflecting your bid totaling $3, 588.00. Should you have any further questions , please contact Bob Kosoy, Public Works Director at 247-5834. Sincerely, ,0/-26/(AW.--19/5-42%'--0 Maureen King City Clerk cc: City Manager Public Works Director Purchasing Agent • .1 BID NO. 9394-9 l In the spaces provided below, indicate price bid for each location for one year: 1. Ditch at Skate Road (4/10 mile, .50 acres) $ 105. 60 2. Ditch as Cavalla Road (2/10 mile, .15 acres) : 52. 80 s 3. Ditch behind Public (2/10 mile, .15 acres) $52. 80 4. Ditch at Aquatic Drive (3/10 mile, .18 acres) $79 . 20 5. Pond at Aquatic Drive (.15 acres) $960. 00 6. Ditch at Police/Fire Dept./City Hall (2/10 mile, .25 acres) $52. 80 7. Ditch at Howell Park $52. 80 (2/10 mile, .25 acres) 8. Lagoon in Howell Park $480 . 00 ' (.10 acre) 9. Ditch at Selva Tierra 4 $52.80 (2/10 mile, .25 acres) 10. Ditch at Seminole Road $10 5. 60 (4/10 mile, .50 acres) 11. Ditch at 20th Street (Selva Madera Court) $7 9. 20 (3/10 mile, .18 acres) 12. Ditch at 20th Street (400 Block) $211 . 20 (8/10 mile, .75 acres) 13. Ditch at 20th Street (500 Block) $105. 60 (4/10 mile, .25 acres) 14. Ditch at 20th Street (Vela Norte) $105 . 60 (4/10 mile, .25 acres) 15. Ditch at Orchid Street to Main Street $52. 80 (2/10 mile, .45 acres) 16. Ditch at Stanly Road to East Church Street $79 . 20 • (3/10 mile, .20 acres) BID NO. 9394-9 17. South Lagoon Plaza to 11th Street (2.00 acres) $ 480. 00 18. North Lagoon 11th Street to Selva Marina CC (2.50 acres) $480. 00 TOTAL PRICE BID FOR ALL LOCATIONS FOR ONE YEAR $ 3, 588. 00 Three Thousand Five Hunderd Eighty Eight (Dollars) SUBMITTAL: Vortex Biological Services, Inc. BY_ John F. Pastore BIDDER 5800 Beach Blvd, # 203-248 �" 1 BUSINESS ADDRESS • GNATURE (• Jacksonville, FL 32207 Owner CITY, STATE & ZIP CODE TITLE DATE: April 20, 1994 (904) 262-3875 BUSINESS TELEPHONE • "SHORELINES" April 26, 1996 54111, Atlantic Beach approves clean • - up of ditches and park • by.IRENE SMITH STAFF WRITER • The cleaning of ditches to prevent flooding •problems and cleaning up city-owned parkland to prevent traffic accidents were both addressed by the Atlantic Beach City Commission this week. Commissioners directed police to check• sightlines at a triangular- shaped park at 16th Street, Ocean Boulevard and East Coast Drive. Several citizens have complained • r.overgrown vegetation is blocking : motorists'vision. Deputy Police Chief John Campbell said there is a visibility problem with traffic southbound on Ocean Boulevard at 16th Street. A motorist can have problems seeing traffic eastbound on 16th Street at the four-way intersection, he ex- plained Two days after the commission meeting, Campbell recommended that some of the overgrowth be removed. Cleaning up ditches at various locations also drew the commis- sion's attention this week. In /order to comply with stomlwater management re- quirements, commissioners direc- ted that a ditch running through Selva Marina area from Fleet Land- ing to Mayport Road be defoliated and vegetation removed. Similar clearing was directed for a ditch at the west end of Plaza. In addition, the city approved ' clearing a ditch at the west side of C Skate Road,from Cutlass to Plaza. Work on the ditch system that parallels 20th Street starting at the t retention pond in Oceanwalk was also approved. Total cost for the ditch cleaning t contract is$11,491. o - .. a «s U cl Tj.•• U - e° E O "i .0 b u t ►. 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E orsp .4 E °� X cl (.2>N1 • 0.5 ., 0 �. • s -, o c 0 o V a bo J > - xt � 3 � E � 8oa.., o o � d ,� � uoc •rd• c w ¢ •B O o° $ 0 ° .2v 0 a' o a 00v c � 6•o y clii) a,a ac� ccT .ra � ca. �•[ ••• H o f U o.¢w a v.cit • c 3 ate. - - 1 t � ;r;:Former Players P-R..•Marra is Most,Popufar_N>ant! ►f9�5><a .. Midweek Edition •• The Beaches Leader AAAI 9.199— Ntrrport•\tLin,ic&c h•Neptunc Bench•JacksonvWe Bosch•Ponce Vrdn Brach VoL 3..,o.-9 •50' Double-standards cloud AB drainage pond issue tby JEFF HAYNES company in 1994. The work was I listed as costing S960. STAFF WRITER "The basic issue is. we're spend- Maintaining the pond by Aquatic ing public money for a public pur- Gardens will mean eliminating the pose,and they [the city] don't have practice of a double-standard. The right of way, and they don't have • perpetrator of that double-standard, an easement," said Potter. "Do we however,remains a question. not have unequal treatment under "I am against the double-stan- the law?" • Bard of what we do with public A 1996 report from Public Works money,"said Alan Potter,vice pres- Director Bob Kosoy states that ident of the Beaches Aquatic Cen- maintaining the Selva Marina ditch ter(BAC)board.The city of Atlan- helps with the water flow and tic Beach is paying for maintaining reduces flooding problems. a privately owned drainage system Fletcher hesitated to compare the in one part of the city and not in Selva Marina ditch to the Aquatic another,he said. Gardens pond. "My impression is On the flipside, Atlantic Beach that there's a significant distinction Mayor Lyman Fletcher said the real between the two,"he said. double-standard is employed by One is a creek that runs through • people who only want public Howell Park,past City Hall and by money where it will benefit them- Selva Marina,said Fletcher."That's selves. a bit different of a drainage system Residents of Aquatic Gardens re- than art artificial pond created by cendy asked the city for help in the developer,"he said. keeping up the pond, but City At- Sometimes developers looking torney Alan Jensen advised against "to make a buck" will turn around such action. Jensen wrote that the and try to leave the city to tackle city should not maintain a retention the• problems they have created, pond on private property, and that said Fletcher. the BAC and the Aquatic Gardens "My impression is the pond is homeowners should resolve the is- either the pool's responsibility or sue. the homeowners' responsibility," Potter has contested this,present- said Fletcher. ing dedication papers stating that When the city installed the • the city assumed responsibility for aerator in the pond and included it drainage e-erments and "appur- on the maintenance list, that was tenances" in that development.The not the same as assuming respon- sibility for the pond, said Fetcher. pond, tenance"of the drainage system. It was done to provide assistance, • to not CO take over the problem, he If the city is spendingopposed added. money on private property for People do not want the govern- drainage work, why is the city ment involved until it concerns paying Vortex Biological Services them,said Fletcher. to maintain the Selva Marina ditch "It's intellectual inconsistency of • on the golf course,asked Potter. those preaching conservative According to a bid accepted by government," said Fletcher. "It's i the city last year, Atlantic Beach dishonest." . pays Vortex to maintain, defoliate The Beaches Aquatic Center has ' and de-vegetate a section of the been cited for a code violation due . ditch located within the golf course. to trash on the pond's surface. That That work comprises$9,050 of the hearing is scheduled to go before total$35,758 bid. the Code Enforcement Board on While-the Aquatic Gardens pond April 29. Potter has said he is con- : is not listed on the 1996 bid, it was sidering getting an attorney to fight • on a similar one from the same the citation. 1 > uo 1E uu • . 1, . o ,' ( g'c.c E` v)v.) c 9 E E o . Yit -- ' > - jfl b Lc0 ��G nT C ys ,-, ,,, c,-. c •I Op 0x vl uuo , C rn 1 In 3 ' Cu J3•S Cuoot . 0 r o u qy c E E at. u.mui lai cF � , CrcEN-6t ` o9rZ LlU1 °L u eu .0 2 "u c � 4. ioq,�..,. a) :2.5 F" -'4r 5f ° b E WAJ N.ypC E. "ICI U! iHFI U l,d C V L > .p n�� g `° _ o q g.. . el:: (n 0 n 3. H.3 Q o u ci vc v ,i 4d -�"° c, uA >,is � �. VSE ,; ° ea' •E._ Oto) pins4 L. u 3 o•— 2S$ g'� U a� °v•E c U t._ O o0 0 o E�H ., 2 o t •„, c ...;; C ',;.E-5E.50sa. 'n' Eou'5eano ,.' v Z _V 0 li. 44 (1) I Z W Lmu OraSt �• - b,_, Uto U$ �^ t1 • s 3 o C o��� 3 *'d 3 0 3 E `_$ 0 o o u c N co) I Cid to bo o LJH E g.-— n0 0 ,, v > gcn g ._ u 0.EEo c a �Q K a'u o'a`f C 15ed U EF o c `�+" CU df4 5° Lo '�� Q Y3s" deo ' C! o a �° 0 ' 0E �oe � 02 . g 8 = 13'0 xoo 'S0 0 vf Ks OF O0 +111 u rJ' C o' •p'' T ` C 8 0. m U •59 .i s8 .a cuENv , ,� �y vv Mc�] o W N f i..•I Cid m T1 O C 0 0 7 v 0 0 7 00 . < H x o•F E •o c n u u L ,,t y b ° E 2E .d u c 0 d t �55 v u O0,a 3 0 a _ : `� FaI iS 0 rev eQ00 N c �� E1.111111 w u ^L 1 , LLc 3 o u R'•• V ° V-s V 1� f2 °1' N C -g L .-i +' o • a , c S t3 u `d o E z.•.� n c F n �: g 0' U S o��' � ,c e w 6 3 g > N 4 o j .':-I, - T r n.s 4:, 0 O Q u of u g 9 Cn O.j 8 u u v1 U L ..cis pC U4il rim( - 3.5 > � �,5'C ,u� E ., > • Weekend Edition eThBeac es ea er April.S.199' Nryport..\ILo anUt Beach•Neptune Beach•JaJacksonvillePo Beach• en'tetra Beach 34..4 si•50' h • Your • • inion.... lTo the editor AB needs a 'single standard' g To the editor: Clearly, maintenance of drainage should be praised and applauded The April 9 Beaches Leader ar- ways within the city is a valid pub- that it has"for years, and has as of tide "Double standards cloud AB lic purpose and such maintenance this date, a contract for the drainage pond issue"elicited a let- deserves public funding. That pub- maintenance of all of this waterway ter to the editor(April 16). lie purpose funding should include that passes through or borders on The issue of "AB double scan- not only the non-dedicated Selva its property." Without the effort by dard" rises from and rests with the Marina Lagoon and Outfall Ditch Selva Marina, recent flooding of letter of opinion from the city at- but also the dedicated Aquatic Gar- the Howell Park vicinity would torney(March 14, 1997) to the city dens retention pond. have been worse. manager concerning Atlantic Beach The 124 property owners in A- It is my opinion that the Atlantic — maintenance of the Aquatic Gar- quatic Gardens are assessed S3 per Beach city government should es- dens retention pond.That pond Iies month each for a stormwater tablish a "single standard" of within Tract 3 of Aquatic Gardens management fee; this totals maintaining the drainage systems subdivision. The city received and $4,464.00 annually. If the retention that serve all of its citizens and as- accepted dedication of a drainage pond is not to be maintained by the sure equal protection for all. easement over the entire tract "in city, what is the legitimate expendi- perpetuity." ture for those fees each year? Alan W.Potter Sr. The city attorney advised: "I am The Sclva Marina Cooney Club Atlantic Beach not aware of any reason for the . City to maintain a retention pond on private property." Noteworthy, the private property is, in its en- tirety, subject to the dedicated and accepted drainage easement. The "double standard" is unmis- takably identified by an examina- tion of the city contract to maintain, defoliate, de-vegetate, and to chemically spray ditches and waterways. For example, the city contract requires the payment of S10,210 for work along more than a mile of the Selva Marina Lagoon and Outfall Ditch,including: The South Lagoon from Plaza to 11th Street; the North Lagoon from 11th Street to the Selva Marina Country Club; the Selva Marina Ditch from the second bridge at the Selva Marina Country Club Golf Course, terminating at the bridge at Fleet Landing. No public records have been produced to demonstrate that the city possesses either an easement or 411/ a right of way for the route of the Selva Marina Lagoon and Outfall Ditch that (at least for the past year) is being maintained by a city- paid contractor. _ sa =11 y1 •.'�; CITY OF ' • � • lead - 7evu da 1 1200 SANDPIPER LANE _ _ _ _ ATLANTIC BEACH, FLORIDA 32233-4381 • TELEPHONE(904)247-5834 X06 1,, 4 FAX(904) 247.5843 MEMORANDUM DATE: April 1, 1997 TO: Jim Jarboe/City Manager Ann Meuse/Finance Director • FROM: Robert S. Kosoy/Director of Public Works SUBJECT: Renewal of Vortex Contract We recommend renewal of the Vortex contract in the annual amount of$2,304/Month, inclusive of the$80.00 per month added for the Sevilla Ditch System to avoid issuing a separate check request monthly. If approved, this work should be issued on an inverted purchase order. Vortex has been doing a better job than previous firms and their costs have been lower than the other Tums with similarly licensed personnel. . RSK/cst cc: Phil NodineJStreets&Maintenance Division Director Contracts Binder APPROVED BY CITY MANAGER: • .�'7 /. 4'y' l'. • ALAN W. POTTER, SR. • 374 Second Street Atlantic Beach,FL 32233 April 29, 1997 Code Enforcement Board City of Atlantic Beach 800 Seminole Road Atlantic Beach, Florida 32233 Re: Aquatic Gardens Retention Pond Subject: (a) CEB Letter of Notice -- January 30, 1997 (b) CEB Subpoena-- March 24, 1997 (c) CEB Letter of Notice and Order-- March 24, 1997 Dear Board Members: In response to your three written communications, (subj: (a), (b) and (c)), I am appearing in behalf of the Beaches Aquatic Pool, Inc., a Florida non-profit corporation, which is the owner-operator- manager of the public service Beaches Aquatic Pool. 4110 I am ALAN W.POTTER, SR. My residence, for more than 38 years, is 374 Second Street,Atlantic Beach. I am the vice-president of Beaches Aquatic Pool, Inc., and I am a member of the Board of Directors. In that official capacity, I have proper standing to appear before the Atlantic Beach Code Enforcement Board and to respond to the subject (three) CEB communications. The respondent position of Beaches Aquatic Pool, Inc. is that the allegations of Mr. Karl W. Grunewald, Code Enforcement Officer, City of Atlantic Beach, improperly identify the Beaches Aquatic Pool, Inc. for the alleged code violations. For your convenience, I hand you a photocopy of Chapter 12 NUISANCES of the Atlantic Beach Code of Ordinances. Attached thereto is a copy of (a) the January 30, 1997 letter of notice of violation(s), a copy of (b) the March 24, 1997 Subpoena, and a copy of (c) the March 24, 1997 Notice and Order to Appear. A. For your_. irstsonsiderationand action, I request that you refer to subparagraph 12-1b(4) of Chapter 12. The Code Enforcement Board is respectfully requested to delete all allegations that a violation of subparagraph 12-1 b(4) of Chapter 12 has occurred. S Code Enforcement Board April 29, 1997 Page 2 In support of my request, the following valid points are offered: 1. The language of subparagraph 12-1b(4) does not describe nor should it apply to the Aquatic Gardens Retention Pond. 2. The waters within Aquatic Gardens Retention Pond are not now nor have they ever been"stagnant." The waters are the home for fish and other wildlife. 3. The waters of The Aquatic Gardens Retention Pond are not now nor have they ever been the habitat for mosquito larvae. 4. The waters of the Aquatic Gardens Retention Pond do provide a growth area for "duckweed," the smallest aquatic plant that is indigenous to Florida. This floating plant growth provides shelter from the direct rays of the sun for the fish life and a hiding place for those fish from bird attacks. 5. The allegation"I have found and determined that you are in violation of Atlantic Beach Ordinance Chapter 12, Section 12-1b(4)" is a false allegation and warrants deletion from further discussion. B. For your second considerationand action, I request that you refer to Subparagraph 12-1b(3) of Chapter 12. The Code Enforcement Board is respectfully requested to delete all allegations that Beaches Aquatic Pool,Inc. has either permitted or committed a violation of subparagraph 12-1b(3) of Chapter 12. In support of my request, the following valid points are offered: 1. The townhome residential community of Aquatic Gardens was designed and constructed so that all stormwater falling upon the homes,the yards, the driveways, and the streets therein would flow to and along the concrete curbs; thence to and into curb inlets and catch basins; thence, via underground concrete culvert pipes to, into, and across the retention pond; thence, exiting the retention pond by flowing into and through a concrete culvert pipe and discharging into the Royal Palms drainage ditch. 2. The engineering plans and specifications for the Aquatic Gardens subdivision were submitted to and approved by the Atlantic Beach City Commission prior to construction of the development. I I Code Enforcement Board April 29, 1997 ,r, Page 3 3. The construction of all of the Aquatic Gardens subdivision water, sewer, storm drainage, streets, and retention pond were subject to inspection and approval by the City of Atlantic Beach. 4. The "Record Plat" for the Aquatic Gardens subdivision was submitted to, approved, and accepted by the City of Atlantic Beach. Integral and legally essential parts of the Record Plat are: ADOPTION AND DEDICATION "...that all street rights-of-way, private driveway easements, and easements for drainage,utilities,and sewers,together with all water and sewer utilities and drainage appurtenances lying therein, are hereby irrevocably and without reservations dedicated to the City of Atlantic Beach and its successors." and, "Tract 3. Easement for drainage, utilities and sewers, (over entire tract)" ler and, COMMISSIONER'S APPROVAL "This is to certify that this plat has been examined, accepted, and approved this 25th day of April A.D., 1983, By the Board of Commissioners for the City of Atlantic Beach, Florida." 5. Confirmation of intent that resides with the adoption and dedication of"drainage appurtenances" and with the "Tract-3" language is supported by the definitions contained in"Black's Law Dictionary," Sixth Edition, West Publishing Company, 1990. I hand to each of you a photocopy of the definitions for EASEMENT and for APPURTENANCE and a photocopy of the Record Plat for Aquatic Gardens. Code Enforcement Board April 29, 1997 Page 4 A reasonable reading of those definitions should assure you that (a) the retention pond is a"drainage appurtenance,"(b)the retention pond--situated on Tract 3-- is the subject and the purpose of the"drainage easement"over the entire tract, and, (c) the retention pond (i.e., drainage appurtenance) was dedicated to and accepted by the City of Atlantic Beach, "in perpetuity." 6. The City of Atlantic Beach possesses the undisputed"right of easement"to utilize "the entire Tract-3" for its drainage purposes. 7. It is reasonable and clear that"plastic litter"is found in many places throughout our community. It is also reasonable to acknowledge that heavy rainfall will "flush" objects of litter and float those objects into the storm drainage system,the drainage ditches, and the drainage pond(s). An examination of the Aquatic Gardens Retention Pond should fairly disclose that the plastic litter therein most probably was conveyed to the retention pond as a result of storm water cleaning of the city streets in Aquatic Gardens. It is also well known that some of the litter along Atlantic Beach streets results from the careless collection of garbage and trash by the City-contracted refuse company. During periods of heavy rainfall, the Royal Palms Ditch backs up into the Aquatic Gardens Retention Pond, conveys flotsam and contributes to the overflow onto and blockage of Aquatic Drive. 8. There has been no showing by the Code Enforcement Officer that any member-- 1 either adult or child-- of the Beaches Aquatic Pool has deposited rubbish and litter into the Aquatic Gardens Retention Pond. 9. Recent"Beaches Leader" and"Shorelines"printings (authored by journalist Jeff Haynes,journalist Irene Smith, citizen G. E. Martin, and citizen A. W. Potter) have documented that the City of Atlantic Beach does expend public funds to maintain dedicated drainage rights-of-way, and non-dedicated drainage ways. For approximately eleven years,the City funded maintenance of the dedicated easement Aquatic Gardens Retention Pond. For the past two years the City has abandoned the retention pond maintenance and, via the Code Enforcement Board, sought to compel maintenance by the Beaches Aquatic Pool, Inc., the owner of the land UNDER the I46 retention pond. Code Enforcement Board April 29, 1997 110 Page 5 10. Expenditure of public funds to serve a necessary public purpose is visibly providing a"protection" under the law. To selectively omit the citizens of Aquatic Gardens from municipal "protection" by refusing to provide maintenance of the retention pond is a denial of"equal protection" for those citizens. 11. The City of Atlantic Beach and/or the Code Enforcement Officer have a double standard for maintenance of drainage waterways. For viewing by the Code Board members, I offer two photographs of the Aquatic Gardens retention pond and eight photographs of drainage waterways in the immediately adjacent neighborhoods. An examination of the photographs will clearly show that City-maintained waterways are in worse condition than is the Aquatic Gardens retention pond. It is obvious from the photographs that the Code Enforcement Board is being placed in a position of imposing "selective enforcement" of the nuisance law. You should turn away from such an action. C. The Officers and Directors of Beaches Aquatic Pool, Inc. request the City of Atlantic Beach Code Enforcement Board to recognize the adverse economic impact upon the public service performance of Beaches Aquatic Pool, Inc. that would result if the Code Enforcement Board should disregard the facts of the retention pond matter and, as a result, should proceed and impose fines upon Beaches Aquatic Pool, Inc. Imposition of fines and the fear of future fines will require Beaches Aquatic Pool, Inc.,to expend its limited funds on retention pond maintenance that, in my considered opinion (which is supported by the facts), is the municipal duty of the City of Atlantic Beach. D. It is my opinion that members of the Code Enforcement Board of the City of Atlantic Beach should not, under color of authority of their appointed office, take any action that is either harmful to or prejudicial to Beaches Aquatic Pool, Inc.and cause an impairment of its public service purpose. E. For the consideration of the Code Enforcement Board, an "Information Package" deserving of review is herewith provided to each member of said Board; information contained therein has been and continues to be readily available from the public records and from the published media. • Code Enforcement Board April 29, 1997 11111, Page 6 The considered review, attention and concern of each member of the City of Atlantic Beach Code Enforcement Board is invited and requested to all information concerning the Aquatic Gardens Subdivision, the Aquatic Gardens retention pond, the Beaches Aquatic Pool, Inc., the actions and conduct of the City of Atlantic Beach in all maters concerning storm water ditches, storm water ponds, and storm water lagoons-- whether rights-of-way, dedicated easements, or non-dedicated waterways-- and all actions and contracts associated with the maintenance of the Atlantic Beach storm water system. Such actions are warranted in the just resolution of the Aquatic Gardens Retention Pond issue now before the Board. Respectfully submitted, Al W. /77A -, , Sr. Vice-President, Beaches Aquatic Pool, Inc. AWP/amh S 1646 1647 UNITED STATES CONSTITUTION AMENDMENT XII [1804] prior The Electors shall meet in their respective states and vote by ballot for President and Vice-Presi- dent, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, -eason- and transmit sealed to the seat of the government of the United States, directed to the President of the cause, Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, )ersons open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, on a the representation from each state having one vote; a quorum for this purpose shall consist of a member in the or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. for the And if the House of Representatives shall not choose a President whenever the right of choice shall ;e to be devolve upon them before the fourth day of March next following, then the Vice-President shall act as w; nor President, as in the case of the death or other constitutional disability of the President.—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed,and if no person have a majority,then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be • by an necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible ct shall to that of Vice-President of the United States. :ion; to 3 In his AMENDMENT XIII [1865] Section 1. Neither slavery nor involuntary servitude,except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. of trial t of the Section 2. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XIV [1868] Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction hments thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their sparage respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for States, participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who equity, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a izens or member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or 41111, Appurtenant easement. An incorporeal right which is . BLACK'S attached to a superior right and inheres in land to which it is attached and is in the nature of a covenant running with the land. Fort Dodge, D. M. & S. Ry. v. L A �N�y� DICTIONARY' American Community Stores Corp., 256 Iowa 1344, 131 N.W.2d 515, 521. There must be a dominant estate and servient estate. An easement interest which attaches to Definitions of the Terms and Phrases of the land and passes with it. First Nat. Bank of Amaril- American and English Jurisprudence, lo v. Amarillo Nat. Bank,Tex.Civ.App., 531 S.W.2d 905, Ancient and Modern 907. An "incorporeal right" which is attached to and By belongs with some greater and superior right or some- thing annexed to another thing more worthy and which HENRY CAMPBELL BLACK, M. A. passes as incident to it and is incapable of existence separate and apart from the particular land to which it SIXTH EDITION is annexed. BY THE PUBLISHER'S EDITORIAL STAFF Exclusive easement. Grant of"exclusive easement" con- veys unfettered rights to owner of easement to use that Coauthcrs easement for purposes specified in grant to exclusion of JOSEPH R. NOLAN all others. Latham v. Garner, 105 Idaho 854, 673 P.2d Associate Justice, Massachusetts Supreme Judiaal Court 1048, 1050. AM JACQUELINE M. NOLAN—HALEY Easement of necessity. One in which the easement is Associate Clinical Professor• indispensable to the enjoyment of the dominant estate. Fordham University School of Law Such arises by operation of law when land conveyed is Contributing Authors completely shut off from access to any road by land retained by grantor or by land of grantor and that of a M.J.CONNOLLY stranger. Tarr v. Watkins, 180 Cal.App.2d 362, 4 Cal. a......Proi..fo,(Lrqua4c.1. cow,.Of Ana&:,cr..<,..30.f0n coda). Rptr. 293, 296. STEPHEN C.HICKS .. Prof..,01 Ltw.Suffolk UrwefSIty Law So .Boston.MA Private or public easements. A private easement is one 1 MARTINA N.AIJBRANDI in which the enjoyment is restricted to one or a few ' Cer4f..e Pubic Accountant.BOo0O.MA individuals, while a public easement is one the right to the enjoyment of which is vested in the public generally ST. PAUL. MINN. '— WEST PUBLISHING Co. or in an entire community; such as an easement 0 f 1990 passage on the public streets and highways or of naviga- tion on a stream. Easement. A right of use over the property of another. • Traditionally the permitted kinds of uses were limited, Appurtenance /ap6rt3nans/. That which belongs to the most important being rights of way and rights something else; an adjunct; an appendage. Something concerning flowing waters. The easement was normally annexed to another thing more worthy as principal,and . for the benefit of adjoining lands, no matter who the which passes as incident to it, as a right of way or other owner was (an easement appurtenant), rather than for easement to land; an outhouse, barn, garden, or or- the benefit of a specific individual (easement in gross). chard, to a house or messuage. Joplin Waterworks Co. The land having the right of use as an appurtenance is v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1076. known as the dominant tenement and the land which is An article adapted to the use of the property to which it subject to the easement is known as the servient tene- is connected,and which was intended to be a permanent ment. accession to the freehold. A thing is deemed to be A right in the owner of one parcel of land, by reason incidental or appurtenant to land when it is by right of such ownership, to use the land of another for a used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or special purpose not inconsistent with a general property heat from or across the land of another. See also in the owner. Appendant. An interest which one person has in the land of Appurtenant. Belonging to; accessory or incident to; another. A primary characteristic of an easement is adjunct, appended, or annexed to; answering to ac- ■ that its burden falls upon the possessor of the land from cessorium in the civil law. Employed in leases for the which it issued and that characteristic is expressed in purpose of including any easements or servitudes used the statement that the land constitutes a servient tene or enjoyed with the demised premises. A thing is 'rap- • ment and the easement a dominant tenement. Potter v. purtenant" to something else when it stands in relation 7r. Northern Natural Gas Co., 201 Kan. 528, 441 P.2d 802, of an incident to a principal and is necessarily connected 805. An interest in land in and over which it is to be with the use and enjoyment of the latter. A thing is enjoyed, and is distinguishable from a "license" which deemed to be incidental or appurtenant to land when it merely confers personal privilege to do some act on the is by right used with the land for its benefit, as in the land. 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