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Agenda Packet CEB 7-12-16.pdf CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD MINUTES 6:00 P.M. – JUNE 1, 2016 IN ATTENDANCE Members: Benjamin de Luna, Chair Brenna Durden, City Attorney Kirk Hansen Wayne Flowers, Prosecuting Attorney Louis Keith Jeremy Hubsch, Building & Zoning Director Richard Lombardi Dayna Williams, Secretary Lindsay Norman Don Sasser Chair Ben de Luna called the meeting to order at 6:01 p.m., followed by the Pledge of Allegiance to the Flag. Secretary Dayna Williams read the roll, finding a quorum was present. 1. Approval of Minutes Motion: Approve the minutes of the Code Enforcement Meeting of January 12, 2016. Moved by Norman, Seconded by Sasser The motion was approved unanimously. 2. Administration of Oath to Defendants/Witnesses Chair de Luna gave the oath to the defendants and witnesses. 3. Old Business None 4. New Business CASE ID 16-244 NAME & ADDRESS THE CLOISTER OF ATLANTIC BEACH CONDOMINIUM ASSOCIATION, INC. 10 10TH ST VIOLATION Sec. 24-124 (a). - Modifications to previously approved special planned area districts or master site development plans or planned unit developments (PUD). (a) Changes to the terms or conditions of a special planned area district, or to an existing planned unit development approved prior to the enactment of the special planned area district, that are specifically set forth within the ordinance enacting the PUD or SPA district shall require an ordinance revision using the standard process to amend city ordinances and land development regulations. Chair de Luna asked for a representation of the parties. Prosecuting Attorney Wayne Flowers stated he was here assisting the staff in their presentation. Building and Zoning Director, Jeremy Hubsch, stated he is the interim Code Enforcement Officer for this Hearing. Attorney Paul Eakin stated he is here on behalf of the alleged violator, the Cloister. Mr. Eakin stated he had some preliminary matters he would like to bring to the attention of the Chair and Chair de Luna allowed. Mr. Eakin stated, the Cloister objects to the City Attorney, Ms. Durden, sitting with the Board on the dais, while her law partner, Mr. Flowers, sits with the administrative staff to help present the case. This is a clear violation Draft Minutes of the Code Enforcement Board on June 1, 2016 Page 2 of 6 of Code Section 2-145, and we object to this proceeding going forward and ask for the Board to vote on that and for the Chair to take it up before he moves on to his next item. Chair de Luna stated he would like Ms. Durden and Mr. Flowers to present their positions. Mr. Flowers cited a series of cases to support his position, stating it is not a violation of due process; it is permitted; and it is not unusual in this type of circumstance. Ms. Durden stated she looked at this issue very carefully to ensure that it was acceptable for Mr. Flowers to represent the City in the prosecution of this alleged violation. She stated they were on solid ground based upon the law of the State of Florida and recommended the Board move forward as we are currently postured to do. Chair de Luna asked if this was a decision that could be made by the Chair, and Ms. Durden stated, in her opinion, it does not have to go to a vote. Chair de Luna concurred, denied the motion and stated they should move forward. Mr. Eakin asked if the Chair would entertain his next housekeeping motion and Chair de Luna stated yes. Mr. Eakin stated the Cloister would move to recuse one of the Board members, Kirk Hansen. Mr. Eakin stated he was on the Community Development Board (CDB) and does not feel Mr. Hansen comes here with an open mind to decide the issue. Chair de Luna asked Mr. Hansen if he was in any way prejudiced by his former experience, and Mr. Hansen stated he was ready to hear both sides; did not feel there was any conflict; and has no vested interest in this at all. Chair de Luna stated he thinks they have a member who will be open minded and denied the motion. Discussion ensued. Mr. Eakin stated his next housekeeping measure is regarding the Notice of Hearing he received for this meeting, dated May 19, 2016. He stated it violates our Code, Section 2-147(b) (2), because there is no sworn statement, and he would move to dismiss the Notice and dispense with this Hearing for failure to properly notify under the Code. He provided a copy of his Notice for the Board to review and Chair de Luna denied the motion and asked the City to present its case. Ms. Durden explained the procedures of a quasi-judicial proceeding and all ex parte disclosures were made by the Board. Mr. Flowers stated the issue the Board will be deciding tonight, is whether there is a legal requirement, included in the original PUD approval for the Cloister Condominiums, requiring the south gate at Beach Avenue and Club be utilized for emergency vehicles only. He stated that is the issue before the Board; does the condition exist and does it apply to the property, and, if so, has it been violated. Mr. Eakin stated the official plan has to contain all the terms and conditions of the PUD Ordinance and the City cannot find the official plan. He stated if you don’t have the official plan, then you don’t have a PUD. Mr. Flowers called Mr. Markee to the podium and asked him to state his name and address. The witness stated John Markee, 330 19th Street. Mr. Flowers asked if he was previously employed by the City of Atlantic Beach. Mr. Markee stated yes, he was the Code Enforcement Officer and Mr. Hubsch was his supervisor. Mr. Flowers asked what his duties were in that position and Mr. Markee stated to uphold the City’s Ordinances in accordance with the City Codes and the International Property Maintenance Codes (IPMC). Mr. Flowers submitted Exhibit 1 (which is attached and made part of this official record) and asked Mr. Markee to identify what was in the packet. Mr. Markee stated it is the Notice of Violation (NOV) sent February 8, 2016, the Affidavit affirming he mailed the Notice, and a copy of the signed return receipt card. He was also asked to verify all supplements entered by him were correct in which he confirmed. Mr. Flowers submitted a collection of photographs as Exhibit 2 (which is attached and made part of this official record), and asked the witness if he could identify them. The witness confirmed these are the photographs he had taken prior to the NOV being sent and after the 30-day period to comply had expired. Mr. Flowers asked the witness to describe his investigation of the Cloister south gate. The witness stated he observed vehicles exiting the gate, as depicted in the photographs. Mr. Markee stated, as the 30-day period had expired, he sent a Notice of Hearing (NOH) to the Cloister Condominiums on May 4, 2016. Mr. Flowers asked the witness if a Draft Minutes of the Code Enforcement Board on June 1, 2016 Page 3 of 6 copy of the NOH and a copy of the return receipt card were also included in Exhibit 1 (which is attached and made part of this official record) and the witness stated yes. Mr. Eakin cross-examined Mr. Markee, asking him to refer to Exhibit 1 (which is attached and made part of this official record) and read a portion of the NOV letter, dated February 8, 2016. Mr. Eakin asked the witness if it was his position that the condominiums were subject to the terms of the original application, and the witness stated yes. Mr. Eakin asked if he was aware, at the time he wrote the NOV, that there was a PUD Ordinance passed by the City in 1972, and the witness stated no. Mr. Eakin stated, therefore, you were basing the violation on the Cloister Condominiums not abiding by the original terms of its application, not by the terms of the original PUD, correct? The witness stated correct. Mr. Eakin asked the witness to refer to the NOV letter, Sec. 24-124 (a), and asked why he cited that section. The witness stated it was added by direction from Mr. Hubsch. Mr. Eakin questioned Mr. Markee whether he had determined there was an ordinance enacting the PUD prior to writing the NOV letter and Mr. Markee explained the information he had was based on the minutes from 1973; there was no ordinance. Mr. Flowers called Mr. Hubsch and asked him to state his name and business address. The witness stated, Jeremy Hubsch, 800 Seminole Rd. Mr. Flowers questioned the witness about his employment, position, and duties involved. Mr. Hubsch stated he was the Building and Zoning Director for the City of Atlantic Beach and explained his position and duties with the City. Mr. Flowers submitted Exhibit 3 (which is attached and made part of this official record) and asked Mr. Hubsch to identify what was in the packet. Mr. Hubsch stated it is an Affidavit affirming he mailed Notice of Hearings (NOH), who they were mailed to, and a copy of the signed return receipt cards. Mr. Flowers submitted Exhibit 4 (which is attached and made part of this official record), stating it is a certified copy of the January 22, 1973 minutes of the Commission meeting. He asked the witness if he had seen them before and if there was an entry in the minutes concerning the Cloister PUD, and the witness answered yes to both questions. Mr. Flowers submitted Exhibit 5 (which is attached and made part of this official record), stating it is a certified copy of the February 20, 1973 minutes of the Advisory Planning Board. He asked the witness if he recognized the document and the witness stated yes, it is the request for a PUD application on the Hotel Reservation, stating the Board voted that it be moved on to the City Commission. Mr. Flowers submitted Exhibit 6 (which is attached and made part of this official record), stating it is a certified copy of the minutes of the February 26, 1973 Commission meeting. He asked the witness if there were remarks in the minutes concerning the Cloister PUD and the witness stated yes, giving a brief description of the contents. Mr. Hubsch stated it is an application for PUD zoning for Hotel Reservation. Mr. Hubsch stated the property owner, Mr. Butts, would like to construct a condominium not to exceed three stories with only one access to the property, 10th Street, and a lock gate at the southern end of the property at Beach Avenue for emergency use. Mr. Flowers submitted Exhibit 7 (which is attached and made part of this official record), a certified copy of the minutes of the March 12, 1973 Commission meeting, and asked the witness if he had seen the document before. The witness stated yes, and provided a brief description of the remarks. Mr. Flowers submitted Exhibit 8 (which is attached and made part of this official record), a certified copy of the minutes of the July 9, 1973 Commission meeting, asking the witness if he had seen the document before and to describe the remarks. The witness stated yes, he has seen it before; Mr. Butts submitted his plans for final approval under PUD for condominiums to be built; the plans do not deviate from the original proposal and it was moved and carried that the final plans be accepted. Mr. Flowers asked the witness what this series of minutes show in regard to the Cloister PUD application, specifically as it relates to the conditions appended to it. Mr. Hubsch stated it shows the developer, Mr. Butts, Draft Minutes of the Code Enforcement Board on June 1, 2016 Page 4 of 6 was seeking to rezone his property to PUD in order to construct a condominium complex. He stated, in the course of doing that, he made several statements regarding keeping the south gate closed for emergency access only. Mr. Flowers asked the witness if he had been able to locate the actual plan document for the Cloister PUD. Mr. Hubsch stated no, however we have seen what we believe to be a post construction survey that shows the south gate had a very minimal entrance point. Mr. Flowers submitted Exhibit 9 (which is attached and made part of this official record), a survey of the Cloister property, asking the witness if it was the document he was referring to, and the witness stated yes. Mr. Flowers submitted Exhibit 10 (which is attached and made part of this official record), a certified copy of a letter dated November 6, 1986 from the Treasurer of the Cloister Board to the City Manager, Richard Fellows, asking to change the entrance to the complex from 10th Street to Club Drive. Mr. Flowers asked if he located any record showing an application being filed to modify the PUD in connection with this letter, and the witness stated no. Mr. Flowers submitted Exhibit 11 (which is attached and made part of this official record), a certified copy of the minutes of the Commission meeting dated February 12, 1990, asking the witness if he had seen the document before. Mr. Hubsch stated yes, and he described the document as an agenda item, explaining it states Mr. Hines opposed the Cloister’s proposal to change the access to the condominium and Mayor Gulliford said the City Commission had not taken any action on the matter when it came before them in 1986. Mr. Flowers submitted Exhibit 12 (which is attached and made part of this official record), a certified copy of a staff report connected with an agenda item dated February 20, 1990, and asked the witness if he had seen the document before and if it deals with the issue of whether the Cloister property is zoned PUD or not. Mr. Hubsch stated he had seen the document, stating it reports that in the absence of any application for rezoning, the Cloister should be treated as a PUD. He added this was from the City Clerk, Maureen King. Mr. Flowers submitted Exhibit 13 (which is attached and made part of this official record), a certified copy of the minutes of the February 26, 1990 Commission meeting, asking if the witness had seen the document before. Mr. Hubsch stated yes, explaining it was a report of old business regarding action on the request from the Cloister to change the main entrance to the complex from 10th Street to Club Drive. He stated, Mayor Gulliford explained the procedure which would have to be followed to amend the PUD. Mr. Flowers submitted Exhibit 14 (which is attached and made part of this official record), a letter from Richard Cox, a former President of the Cloister Condominium Association, and asked Mr. Hubsch if he had seen the document before and to describe the remarks. Mr. Hubsch stated he has seen the document and explained the letter references the June 12, 1996 Cloister Association meeting. He added, it addresses replacing the existing south gate and fence and references that entrance being restricted to emergency vehicles. Mr. Flowers asked the witness if the issue of the use of the south gate came up again in 2003, and the witness stated yes. Mr. Hubsch explained they found minutes in 2003 where Commissioner Beaver stated he desires the south gate be closed. He stated the Public Works Director, Bob Kosoy, indicated it was only temporary, due to construction, and would then be closed. Mr. Flowers submitted Exhibit 15 (which is attached and made part of this official record), minutes of the January 13, 2003 Commission meeting and asked if the remarks he just referenced were included in those minutes, and the witness stated yes. Mr. Flowers submitted Exhibit 16 (which is attached and made part of this official record), a certified copy of the February 17, 2015 CDB minutes, asking the witness if he recognized the document and what does it describe. Mr. Hubsch stated it is the minutes where the Cloister was seeking approval to open the south gate and the Board voted unanimously to recommend denial. Mr. Flowers asked the witness, in summary, to describe the violation that occurred here, and what would be required to remedy it. Mr. Hubsch stated it is a violation of the original 1972 PUD application, which we have seen through the minutes, and the applicants are violating by using the south gate. He stated, to remedy that, Draft Minutes of the Code Enforcement Board on June 1, 2016 Page 5 of 6 they can either comply, thereby closing the south gate, or they can submit an application to go through the PUD modification process. Mr. Eakin questioned Mr. Hubsch about the official plan for the PUD, noting that he never saw the official plan, and the witness stated that is correct. Mr. Eakins asked if he had the building permits, and Mr. Hubsch stated no. Mr. Eakin referenced the Notice of Hearing dated May 19, 2016, which has his signature attested to. Mr. Eakin said, you stated the Cloister Condominiums are subject to the terms of the original application, but where is the application? Mr. Hubsch stated we do not have a copy of the original application; we have the documentation specifically mentioned in the Commission minutes. Mr. Eakin discussed prior Exhibit 10 (which is attached and made part of this official record), a letter from Ms. Dorsey dated November 6, 1986, requesting to change the entrance of the complex to 10th Street. Mr. Eakin submitted Exhibit A (which is attached and made part of this official record), the City Commission minutes dated November 10, 1986, stating Ms. Dorsey came before the Commission to present the reasons they wanted to change the entrance from 10th Street to Club Drive. Mr. Hubsch read the last sentence, stating, following discussion, the Commission had no objections as long as they did not close 10th Street permanently. Mr. Flowers referred to Exhibit 10 (which is attached and made part of this official record), the letter from Ms. Dorsey, and asked Mr. Hubsch if he had found any record indicating that a change to the entrance had ever been done, and the witness stated no. Mr. Flowers asked if the subject was again discussed in the 1990 minutes (Exhibit 11) (which is attached and made part of this official record). Mr. Hubsch stated yes, and read that Mr. Hines said he opposed the Cloister proposal to change the access to the complex and Mayor Gulliford stated the City had not taken any action on the matter when it came before them in 1986. Chair de Luna asked the Board if they had any questions. Mr. Norman stated he has heard testimony covering a 43-year history of this issue coming before some official body of the City of Atlantic Beach almost every decade. He asked Mr. Hubsch, during the time you have worked with this situation, has anyone asked you to explain the mechanism to get the south gate restriction removed. Mr. Hubsch stated yes, explaining they went forth with the process in February 2015 by going to the CDB and asking for the condition to be lifted. He stated the CDB made a recommendation to deny it, then it would have gone to the City Commission. He said the former president, Mr. Gleit, regrouped after that meeting, stating before they went to the Commission they wanted to be better prepared, and they did not pursue a final vote from the City Commission. Mr. Norman asked if they could seek redress on this issue at this point in time. Mr. Hubsch stated yes, they can submit an application to modify the PUD and follow the same process as before. Mr. Eakin called Judy Cebeck, on behalf of the Cloister. Judy Cebeck, 10 10th Street #58, the Cloister Condominiums, stating she has lived there since 1977. Mr. Eakin asked if there was a gate on the south end of the property when she moved in, and she stated no. Mr. Eakin asked did traffic use the south end as an ingress and egress from the property and for how long. The witness stated yes, it was used for about eight years and then came to a stop. Mr. Eakin asked why it came to a stop. The witness stated the property was open on all sides and we had a lot of safety and security concerns. Mr. Eakin asked what did the Cloister do about the issue, and she stated the Board decided to build a barrier to eliminate the ingress and egress from the south end of the property. Mr. Flowers asked the witness if she has ever served on the Condominium Board, and she stated yes. Mr. Eakin asked the witness if the City issued a building permit for the fence she spoke of, and she stated she did not know. Chair de Luna recessed the meeting at 8:06. He reconvened the meeting at 8:21. Draft Minutes of the Code Enforcement Board on June 1, 2016 Page 6 of 6 Mr. Eakin called Lisa Herrold and asked her to state her name and address. The witness stated, Lisa Herrold, 659 Sherry Drive. He asked if she ever lived at the Cloister, and she stated yes, from 1977 to 1989. He asked her if there was a gate at the south end of the property, and she stated, not at the beginning, but a fence was erected sometime during the 1980’s. Mr. Flowers asked Ms. Herrold if she was ever on the condominium board during her time at the Cloister, and she stated no. Mr. Eakin called Edward Dutton and Chair de Luna gave the oath to the witness. Richard Edward Dutton, 10 10th Street #57, the Cloister Condominiums. Mr. Eakin asked if he had any recollection of the south end of the Cloister. The witness stated his aunt purchased one of the first units in 1975 and there was no gate at that time. He concurred that a fence was erected sometime during the 1980’s. Mr. Flowers asked Mr. Dutton if he lived in the Cloister Condominiums, and the witness stated he lives there now, but it was his aunt who first lived there and they would visit her. Mr. Flowers asked what year he moved in as a resident and he stated 1994. Chair de Luna recessed the meeting at 8:24. He reconvened the meeting at 8:29. Chair de Luna requested closing statements from Mr. Flowers and Mr. Eakin. Both parties presented their closing statements. Chair de Luna asked Mr. Flowers to address Mr. Eakin’s comment that his client did not violate Section 24- 124(a), but another Ordinance. Mr. Flowers said he would suggest the old PUD Ordinance has been superseded by the current Ordinance. Chair de Luna asked Ms Durden her opinion and she concurred with Mr. Flowers. Chair de Luna asked the Board two questions; first, from the evidence, do you find there was a condition to close off the south end in this PUD; and second, do you believe there was a violation. Each Board member answered yes or no, including comments. Motion: The Board finds a violation has occurred and orders that compliance be obtained within ten (10) days. Failure to comply will result in fines of $250 for the first day and $250 for every day thereafter while the violation continues to exist Moved by Sasser, Seconded by Norman VOTES: AYE: 5 – SASSER, NORMAN, HANSEN, KEITH, DE LUNA NAY: 1 - LOMBARDI MOTION CARRIED 5. Miscellaneous Business None Adjournment Chair de Luna adjourned the meeting at 9:02 p.m. Benjamin de Luna, Chair _________________________ Dayna L. Williams, Secretary