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Minutes 01-24-02MINUTES OF THE CODE COMPLIANCE BOARD MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA ON THURSDAY, JANUARY 24, 2002 AT 3:00 P.M. Present Chris DeLiso, Chairman David Tolces, Assistant City Attorney Robert Foot Scott Blasie, Code Compliance James Miriana Administrator Enrico Rossi Don Johnson, Building Official Thomas Walsh Dee 7ibelli Absent Patti Hammer, Vice Chairperson Jean Heinly-Bainer, Alternate I. CALL TO ORDER Chairman DeLiso called the meeting to order at 3:00 I1. APPROVAL OF MINUTES OF DECEMBER 26, 2001 Motion Mr. Miriana moved to accept the subject minutes as written. Ms. 7ibelli seconded the motion that carried unanimously. III, AGENDA APPROVAL Motion Mr. Walsh moved to accept the agenda. Mr. Miriana seconded the motion that carried unanimously. IV. ROLL CALL Mr. Scott Blasie, Code Compliance Administrator, called the roll and noted that all the Respondents were in attendance. V. SWEARING IN OF WITNESSES The Recording Secretary administered the oath to all persons who would be testifying. Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 VI. OLD BUSINESS A. LIEN REDUCTIONS Case No, 99-1157 Riverwalk Plaza Joint Venture 1690 S. Congress Avenue Suite 200 Delray Beach, FI 33445 1608 S. Federal Highway Scott Blasie, Code Compliance Administrator, explained that this case was tabled at the November Code Compliance Board meeting. They tabled it in December due to some confusion on staff's part as to the actual 'length of the tabling. All the Board members received packets of information from the Planning & Zoning Division and the Building Division. Ms. Lusia Galav and Mr. Don Johnson were present to answer questions about their respective areas. Mr. Foot inquired of the Assistant City Attorney, David Tolces, whether the Board should be concerned about having gotten the information from the City about this case outside of the hearing. Mr. Tolces responded that this was not a problem because the information would be part of the record and the applicant received a copy of it also. Mr. Rossi asked the City to summarize the major points of the case for the Board. Chairman DeLiso stated that, realistically, the fine of $152,500 was based on a fine of $250 per day plus administrative costs and that the Board should consider that it normally charges violators $25.00 a day. At $25/day the fine would be $15,250 plus administrative costs or if $50/day, $30.5K plus administrative costs. Don Johnson, Building Official, gave a detailed chronology of the events that transpired from the issuance of the Site Improvement Permit #96-4225 for Riverwalk Shopping Center on October 9, 1996, to the present day. His letter of January 22, 2002 summarizes the case and is attached to and made a part of the original minutes on file in the City Clerk's office, along with the rest of the information contained in the packets given to the Board. A copy of the minutes and a copy of the backup information will be forwarded to the City Commission for their information. The Riverwalk Shopping Center project involved the renovation of an entire shopping center. Permit #96-4225 received its final inspection to complete the Site Improvement Permit on August 3, 2001, more than four years later. Walgreens asked for and ~eceived a permit for interior and exterior renovations on September 19, 1997. This permit was the last phase of renovation for the shopping center. The City of Boynton Beach issued a thirty-day Temporary Certificate of Completion for Walgreens on. July 31, 1998. Walgreens totally completed the requirements of their permit, but the site issues prevented them from receiving a full Certificate of Completion. This went on for six months and when it appeared the site issues were preventing the project from being completed, the Building Division stopped issuing Temporary Certificates of Completion. The matter was brought to the attention of the City Attorney, Jim Cherof, who suggested that the case be handled Via the Code Compliance process. The Code Compliance Board found Riverwalk in violation of the Standard Building Code 1994 Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 Edition, Section 104.6.1 and issued an Order on October 20, 1999 that Riverwalk comply by December 1, 1999 or be fined $250.00 per day plus administrative costs. Mr. Johnson included information in the members' packets regarding the history of the 110 inspections requested on the RiverWalk Site Improvement Permit, of which :69 were approved and 41 were disapproved. He also included a copy of the application and a description of the work involved for the Site Permit, the various letters between the City and the developer's representative, Michael Carey, a copy of letters from',~Mr. Carey in agreement that Riverwalk would complete all the site work items by particular dates, and many other letters and documents. Mr. Johnson brought particular attention to a memorandum from Lee Starkey to Mayor Jerry Taylor dated June 15, 1998 in which he stated: "If, at the end of the Sixty day postponement (of the variance request), the purchase is not completed or at least imminent, the owner will erect the wall with no further disCussion." At this time the contractor was preparing an offer to purchase the property to the south from the Florida Inland Navigation District. The subject of the variance was that Riverwalk wanted to replace the required concrete wall between the shopping center and the adjoining property to the south with a chain link fence. The variance request was granted at the City Commission meeting of February 6, 2001. Mr. Johnson was able to iSsue the permanent Certificate of Completion to Walgreens on August 3, 2001. Mr. Foot wanted to know what the City believes is the effective period of violation and what the City recommended. Mr. Blasie stated that December 1, 1999 was the date that the fine started accruing. He thought the task for today was to establish the facts that dated from that time up until the date of compliance, August 3, 2001. Mr. FoOt asked what the item was that was not done at the time of the Board Order in 1999. Mr. Johnson stated that the key item was that Walgreen's did not receive its final Certificate of Completion from September 19, 1999, when the first Temporary Certificate of Completion was grantedi until August 3, 2001. Robert Levy, Riverwalk Plaza Joint Venture, stated that one of the major tasks was to determine exactly what was not done from December of 1999 to August of 2001. It sounded like the shopping center had been sitting in disarray and serving as a nuisance to the community, but from a technical standpoint, the Building Division was trying to get the project completed from the standpoint of paperwork and a Certificate of Completion for Walgreens. The redevelopment of the property dealt with old, existing buildings that had to be torn down or upgraded and enhanced to meet present codes. The work was done in phases. He made reference to Inspector Roy's appearance before the Code Compliance Board on October 20, 1999 when Inspector Roy referred to a punch list of some twenty items that needed to be finished. At that time, Inspector Roy stated that the landscaping was almost complete. Mr. Levy cited this comment as an example of something that was almost completed and still, the Certificate of Completion for Walgreens was not obtained until last summer. Mr. Levy stated that there were thr&e main items that delayed the final Certificate of Completion for Walgreens and they were: 1) the landscaping on the eastern property 3 Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 line buffering the property from the residents on the east side of the Intracoastal Waterway. This was an expensive landscaping job that was put in as an upgrade to the landscaping that was there when K-Mart was there. It was a tricky situation on that property line since there were two other property owners to the north and south and the property lines are not simply defined. The mprovements the City requested for that area required a resurvey of the area and a number of meetings were held with Mike Rumpf to establish what should be put into the landscape area. One of the problems was that they were trying to put a lot of landscaping into a very small area and there were some physical constraints as to fitting it in. When that was resolved and the survey was done in October of 1999, the landscaping was pretty much completed. That was one of the main issues. If you look at the twenty-item list to which Inspector Roy made reference, most of the items had to do with landscaping. Another item from this list was 2) the buffer wall, which is required by the Zoning Code, as a buffer between their property and the property to the south of them. The property to the south is basically a jurisdictional wetland. Because the City has designated that land for residential use, ultimately, having the wall would be a normal requirement between a commercial and a residential area. They believe that the property is never going to be developed because it is a wetland and wil be protected, or so he has been told. Their preference was not to put a wall there but to put a chain link fence and landscaping to keep as much greenery around the property as possible. They thought this was better for the beautification and long-term enjoyment of the property and that a wall would be subject to graffiti, aging, and other problems. When they originally applied for a variance for the buffer wall, some dates and notices changed on the variance date and they did not come to the variance meeting because of the mix-up regarding the date. When the variance was heard, it was denied because they did not appear at the meeting. Then, there were some meetings with staff and with some people in the City. Most people agreed that landscaping was a benefit versus the wall. They then re-applied for the variance but were not allowed to do so for a year based on law. Before they applied for a new variance, they posted a bond. They did not do anything as a shortcut but thought their point of view was the best for the long-term use of the shopping center. The landscaping they did cost quite a bit more than just building a wall would have. He did not want the Board to think they were looking for a cheap way to go. Ultimately, the City Commission approved the variance, they made the improvements, and the bond was released. The third item that was part of the twenty-item list was 3) the dumpsters. The Site Plan required some dumpsters but they did not have a use for them, based on the users in the shopping center. They did not realize that the City required them even if they were not going to be used. It did not make sense to them since dumpsters are unattractive at best. They later learned that the City wanted the dumpsters. At that point they hired an architect, went for a permit, and got them built. It happened towards the latter end of the project, based on the circumstances just mentioned. Mr. Levy mentioned that early on in the project the economy was good and they had no trouble finding workmen to do things. Towards the latter end of the project, when they 4 Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 were trying to finish many small things, they discovered that workmen did not want to take on small jobs if they had something bigger to do. Mr. Levy stated that one of the reasons he had gotten involved in the project was that Boynton Beach was trying to do something with the U.S. I Corridor. He believed the Riverwalk Shopping Center was a definite asset to the City. TheY believe that their clean up of that corner spurred positive activity for development along the U.S. 1 Corridor. Another point Mr. Levy wished the Board to consider was that for the past three years, the County has assessed this property as being 100% cornplete and they have been paying the full assessment of taxes on the property for that period of time. The tax base on the property has tripled from the day they began the project until three years ago, when there was a full assessment based on the completion of the property. He said they had done everything they could to make the project mutually successful between their company and the City, They had their problems with contractors getting things done and some of the issues took longer than expected, but the net result was a beautifully finished project that should benefit the City. They have never tried to get away with something or not do something. Everything is completed and they are paying their taxes and contributing to the community. Chair DeLiso thought that the period of violation should be 610 days minus 365 days, due to the one-year delay that resulted from a miscommunication. Mr. Foot asked for a reading on this from the City. Mr. Blasie said he could not speak about the misunderstanding since he was not a party to it but he agreed that they had to wait a year. Mr. Foot inquired into the nature of the misunderstanding. He questioned their claim that they were not properly informed. Ms. Galav stated that her research indicated that the original variance came before the City Commission on May 19, 1998 and was subsequently tabled three times before it reappeared on August 18, 1998 at which time the City Commission ratified the Planning & Development Board's denial at that time. She did not have any information in her files that stated whether the applicant received proper notice or not. Their current policy is that the applicant gets a copy of the agenda prior to the City Commission or any Board meeting that they handle. She stated that it had been on the agenda for at least four months before it was actually heard. Chair DeLiso asked whether it had been denied because the applicant did not attend a meeting. Ms. Galav said that on the original denial, staff had recommended denial and the Planning & Development Board recommended denial, due to lack of hardship. Staff als° recommended, denial on the second variance, but added conditions in case the Board wanted to approve it. The Planning & Development Board chose to approve it at that time due to the circumstances that were brought forward by the City Forester regarding the property to the south. Mr. Foot asked Mr. Levy why he believed that this case might not come up at a Commission meeting subsequent to the first time it was tabled. He assumed that he was a part to the tabling at the outset. He wondered why they were not attentive to the 5 Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 date when it would come up before the Commission. Mr. Levy said that there were a number of dates that came forward as the tabling was done. He stated that when the new date in August came up, they did not get a notice for that meeting. They had another date for when the meeting was supposed to take place. They actually came to a meeting and were told that the meeting was the day or the week before. He comes to all the meetings and he would have been the one to come to that meeting. They were given the wrong date for the meeting and they showed up on that wrong date. Mr. Foot asked who had given them the date of the meeting that was wrong. Mr. Levy had a schedule with a date but could not pinpoint it. Mr. Foot asked Mr. Levy to reiterate the open issues, which he did as follows: 1) Landscaping on the east side towards the Intracoastal 2) buffer wall 3) dumpsters 4) general items on the 28-item punch list dated 11/2/98 from Mr. Haig. Mr. Levy said that the things on the punch list had been substantially done over two years ago. He felt that because the entire punch list keeps going forward, even after things are done, that the appearance is given that more work needs to be done than is actually the case. Mr. Rossi looked at the packet and stated his disbelief that such a task could take four years, He thought that the Riverwalk organization had agreed to certain things at the time of approval but that in the back of their minds was the thought, "we'll substitute something else for that." He said that as to the survey, this was a normal problem for a developer and that developers know what to expect, know what to do, and they solve problems before the end. It seemed to Mr. Rossi that Riverwalk was trying to maneuver around certain things and that this extended the time on the project. He believed that it was never their intention to do the wall from the beginning. Mr. Rossi stated that they had kept dragging their feet until the fine was really high. Mr. Levy stated that most of the items on the punch list had been substantially completed from the time the lien was originally applied. Mr. Foot said that Mr. Levy had not given them dates on the activities that had been completed much earlier. When was the landscaping on the Intracoastal side completed? Mr. Levy said it was completed some time in November of 1999. Mr. Foot asked when the dumpsters were completed? Mr. Johnson replied that the last dumpster pad location was approved on November 24, 1999. Mr. Foot stated that two of the three items that the contractor thought were significant were completed before December 1 of 1999, which would leave only the wall versus fence issue. Was that the City's feeling? Mr. Johnson said that the City's bottom line was that they did not receive a final inspection until August 3, 2001 to complete the project on this Site Permit. If one item is outstanding, it cannot be approved. The entire permit and inspection process must be adhered to for a particular permit number. Ms. Zibelli stated that she has lived in this city since 1962 and has been a Commissioner. She knew that dealing with the City of Boynton Beach's permitting 2rocess was a problem and had been for years. She contrasted the old shopping center Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 with the new one and said that the City should shake the developer's hand for what they had done. The developer did not get any incentives like Mr. Garcia did for the Marina and didn't get anyspecial dispensations for permits; he paid for everything. She felt that he put in good, solid tenants that will probably be there for a long time. Also, she preferred greenery to a wall since there were walls everywhere. Mr. Miriana stated that the whole project was not in violation, .just certain items. The fine was imposed only because the Board wanted to push the contractor to get this project completed Now the Board was trying to fine the contractor for all of the violations but that this was not right. He thought the contractor should be given consideration. He knew the permitting process was difficult. The job is completed. He knew that the Building Division had spent money on inspections and that the Board might have to take that into consideration, but thought that 610 days at $250 a day was excessive. Chair DeLiso agreed with Mr. Miriana and Ms. Zibelli but he looked at the timeframe as far as how long it took. He thought that 365 days of it was because the first variance was denied and there is no recollection as to the reason, as to whether he was properly noticed or not. The Board needs to come to a happy medium in the situation. He asked Mr. Levy what kind of lien reduction he was looking for. Mr. Levy stated that full taxes were being paid on the proper~y. They had done nothing intentionally to delay the permitting processes, but some items just took longer than anyone thought they would. He knew the City had incurred expenses and thought it would be reasonable to pay them. He did not think they should be penalized for what they produced and created for the long-term benefit of the City. Mr. Walsh commented that he agreed with Ms. Zibelli as far as what the corner was and what it is today and the tax base it is now providing. He thought of it in comparison to the shopping center on Linton and Federal and stated what a disaster that shopping center had been. He did not think that the development at that shopping center went any differently. Motion Based upon the testimony and evidence presented in Case No. 99-1157 and having been advised that the Respondents have complied with all lien reduction procedures as set forth in Sections 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Mr. Walsh moved that this Board recommend to the City Commission that fines instituted in Case No. 99-1157 by virtue of this Board's Order of December 1, 1999, be reduced to $5,000 including all administrative costs. Mr. Rossi seconded the motion. Mr. Foot engaged in a discussion with Mr. Johnson about fees for inspections. Mr. Johnson's summary was that it was administrative time that was involved and that they did not charge for that. Mr. Foot noted that the City had not made a suggestion for reduction in the fine. Also, staff had not spoken of any safety issues coming about as a result of a delay in the process. There is defiance of the City for not completing things on schedule or adhering to the proper process for getting variances. He did not hear the developer saying that they made every effort to get things on line along the way. He Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 wished he had heard more from them regarding hardship. Mr. Foot favored a fine of $151980, including Code Compliance inspection fees. He believed that this would be more in line with the magnitude of the situation. He thought that the Board must send a message to others who might think that they can violate the law. The message would be that violating the law incurs a penalty. Mr. Levy said that had the tax base and assessment not gone up double and triple since they had established their shopping center, he might agree with Mr. Foot; however, the City, over the next several years, will realize more than $150K from their development. Mr. Rossi thought that the City had aCted in every way in a proper fashion. They did not treat this case any better or any wors'e than any other case. He stated that the Board could not set fines based on how something turned out. Also, any notion that the City is the bad guy would be false. The City gave them all kinds of extensions. He: also said this had not been part of a downtown redevelopment project but was a straightforward business deal that was entered into to make money. He thought all of this shoUld enter into the Board's philosophy as they considered action in this case. Mr. Foot amended the motion to strike $5,000 and insert $15,980. The motion died for lack of a second. Motion Based upon the testimony and evidence presented in Case No. 99-1157 and having been advised that the Respondents have complied with all lien reduction procedures as set forth in Sections 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Mr. Foot moved that this Board recommend to the City Commission that fines instituted in Case No. 99-1157 by virtue of this Board's Order of December 1, 1999, be reduced to $10,000, including all administrative costs. Mr. Rossi seconded the motion. The amended motion failed 2-4 in a roll call vote polled by the Recording Secretary (Messrs. DeLiso, Miriana, Walsh, and Ms. Zibelli dissenting.) The Recording Secretary polled a roll call vote on the original motion for $5,000 and it failed, 3-3 (Messrs. Miriana, Foot and Walsh in favor; Messrs. Rossi, DeLls° and Ms. Zibelfi against.) Motion Ms. Zibelli moved to reduce the fine to $730.15 in Case No. 99-1157. The motion died for lack of a second. Motion Mr. Rossi moved to reduce the fine in Case No. 99-1157 to $7,500 plus administrative costs. Mr. Foot seconded the motion. Chair DeLiso said he had driven through the project and that it was so much better than What used to be there. It could have turned into another Gulf Stream Mall with!its Police 8 Meeting Minutes Code Compliance Board Boynton Beach, Florida January 24, 2002 presence, but that did not happen. He thought Mr, Levy was trying to improve the City. He also saw the City's point of view in that Mr. Levy didn't move fast enough in complying with the different issues but thought that the finished product had to be taken into consideration. Sometimes things take more time than expected, and the fine of $152,500 was unrealistic. The project was finished and the City has a nice tax base as a result. He thought this should all be taken into consideration. Mr. Foot said this was not a Garden Club where awards were being made for "Most Improved Properties." The Board is to determine whether the law has been satisfied or not. There is a procedure for the issuance of permits and requirements that go along with that. There are questions as to whether or not someone has complied with those requirements. It is time the Board recognized that it has to stand up for the law as well as what it thinks is nice. He asked for support of the $7,500 plus administrative costs motion. The Recording Secretary polled a roll call vote that ended in the motion failing 2-4 (Messrs. DeLiso, Miriana, Walsh, and Ms. Zibelli dissenting). Chair DeLiso asked the Board members to try for a happy medium that everyone could live with in this case. Mr. Walsh asked Mr. Levy once again what he would be happy with, in light of the proposed motions. Mr. Levy was not happy with being in this situation but said that the real issue was that ;there were some very small items that were not completed up to Mr. Johnson being able to give the final Certificate of Compliance, even though he had stated that he cannot give that until the "last theoretical screw is in the wall." The project has been in compliance, as far as the majority of the items on the punch list, for a number of years. Motion Based ,upon the testimony and evidence presented in Case No. 99-1157 and having been advised that the Respondents have complied with all lien reduction procedures as set forth in Sections 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Mr. Walsh moved that this Board recommend to the City Commission that fines instituted in Case No. 99-1157 by virtue of this Board's Order of December 1, 1999, be reduced to $6,500.00 including all administrative costs. Mr. Foot seconded the motion that passed 4-2, (Chair DeLiso and Ms. Zibelli dissenting.) Chair DeLiso told Mr. Levy that the fine had been reduced to a total of $6,500.00 and that he had the right to appeal his case to the City Commission. He thanked Mr. Johnson and Lusia Galav for lending their expertise to the proceedings. Mr. BlaSie advised that on lien reductions, the City allows for a seven-day appeal period and this period begins when the minutes of this meeting are received from the City Clerk's office and the Chairman signs the Order. Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 Case #00-1209 Pat Marshall 305 S.W. 5th Lane Mr. Blasie stated that the respondent appeared before the Board in the past for remodeling an enclosed carport without a permit. A lien was filed. When the respondent came to the City to obtain a permit and the application was reviewed, it was determined that the respondent did not have the required off-street parking spaces since the respondent's space was about two feet short of the required amount. The respondent appeared before the City Commission at the June 19, 2001 meeting to present his problem. The carport was already in existence before he performed the work. The City Commission directed staff to look at the off-street parking requirements and try to come up with a solution. Mr. Blasie asked the Board to stop the fine from running beginning June 19, 2001. Staff reviewed the Ordinance governing off-street parking spaces and amended it to allow situations like this to be permitted. Mr. Blasie recommended that the criteria for the reduction had been made, the ordinance had been modified, and all was in order. The City was not desirous of having a fine in the situation, including administrative costs. It was a small matter and the respondent bought ;the house with the structure already enclosed. All he was doing was closing in an area that had a window. Motion Based on testimony and evidence presented in Case No. 00-1209, and having been advised that the respondent has complied with all lien reduction procedures set forth in Sections 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Mr. Foot moved that the fine instituted in case No. 00-1209 by virtue of this Board's order of October 18, 2000, is rescinded and that the lien imposed by the Order is released. Mr. Walsh seconded the motion that carried 5-0 (Ms. Zibelli left the dais just prior to the vote and returned after it). Case #01-1229 Anthony Evans P.O. Box 9614 West Palm Beach, FI 33419 551N.W. 13th Avenue Mr. Blasie reported that the Building Division had cited this property on May 31, 2001. They installed an air conditioner unit without benefit of inspections or permits. It was red-tagged and came before the Board on July 18, 2001. No one appeared. The Board issued a date for compliance of July 30, 2001 or a fine of $25.00 per day. The property came into compliance on January 18, 2002 for 171 days of non-compliance. The property in question is a rental property. Anthony Evans, Chelsea Drive, Miramar, Florida 33025, stated that he engaged a company known as ARS to do the required work at this property. It was his first purchase of a duplex and when he paid for the work to be done, ARS said they would take care of everything, including pulling the permit, so he took for granted that they had done this. When he got the first notice of violation, he called ARS and they said they would take care of it. When he tried to refinance, he found out that ARS had never done 10 Meeting Minutes Code Compliance Board Boynton Beach, Florida Januaw 24,2002 what they said they would do. He admitted that this was his mistake but stated that he had never owned a duplex before and was trying to adhere to the code. Chair DeLiso asked if the property had been cited in the past. Mr. Blasie stated that he had no history on it. He looked at the property and knew that there was no history of code violations in the neighborhood in which the violation occurred. Motion Based upon the testimony and evidence presented in Case No. 01-1229 and having been advised that the Respondent has complied with all lien reduction procedures as set forth in Sections 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Mr. Foot moved that this Board recommend to the City Commission that fines instituted in Case No. 01-1229 by virtue of this Board's Order of July 18, 2001, be reduced to administrative costs of $634.12. Mr. Walsh seconded the motion that carried unanimously. VII. ADJOURNMENT There being no further business to come before the Board, the meeting was duly adjourned at 4:20 p.m. Respectfully submitted, Susan Collins Recording Secretary (one tape) ( 1 / 17/O2 ) 11