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HomeMy WebLinkAbout630 - MINUTES - City Commission MINUTES OF MEETING DANIA BEACH CITY COMMISSION ABATEMENT HEARING THURSDAY, NOVEMBER 18, 2004 - 6:00 P.M. 1. Call to Order Mayor McElyea called the meeting to order at 6:03 p.m. 2. Roll Call Present: Mayor: C.K. McElyea Commissioners: Robert Chunn Patricia Flury City Manager: Ivan Pato City Attorney: Tom Ansbro City Clerk: Louise Stilson Absent: Vice-Mayor: Bob Mikes Commissioner: Bob Anton 3. Abatement Requests 3.1 Request by Jocelyn Jones/Pat Jones, for abatement of Case #CEB00-0668. Vacant lot 200 Block NW 1st Avenue in Dania Beach (Folio 90234-01-0110) (Continued from July 29, 2004 and September 16, 2004) Tim Ryan, Code Enforcement Attorney, advised the property was cited for four separate violations in 2001: failure to remove vehicles; failure to remove trash; failure to remove outside storage of vehicles, equipment and vessels; and failure to replace or remove a fence. The property is a vacant lot adjacent to the FEC railroad line. The Code Board allowed the owners of the property (McCutcheon) thirty days to comply by March 3, 2001. The property was brought into compliance in September of 2001 and the total amount of the fine was $39,300. Proper notice had been served to the property owners. He commented the attorney for the new property owners has raised the issue of due process, claiming the meeting at which the Board took the affidavit of Will Dubisky, Code Enforcement Officer, did not give notice to the record owner of the property. He stated it is correct that notice was not sent to the record owner of the property. Statute 162, states that a hearing giving notice 0 to the violator as to the hearing confirming fine, is not required, and at that time the City did not give notices. Mr. McCutcheon did notify the Board that he wished to have the fine abated. Mr. McCutcheon appeared and stated he and his father had been out of state and did not know there was a violation on the property. They had given power of attorney to Art Frances to handle all the McCutcheon properties in the City. Based upon that testimony the Code Board reduced the fine to $19,650. The reduced amount was not paid and the fine reverted to the original amount. He remarked it is the City's position that we did have a mechanism in place that allowed for a hearing on whether the violation did continue to exist. The liens were recorded and then because the McCutcheon's did not pay the ad valorem taxes,the property was sold for delinquent taxes. The current owners purchased the property at a tax sale, so they have an investment in this property of $12,000-$13,000. He advised there was constructive notice on the active title that the property held a lien at the time of sale. It is staff s position that the lien is valid; the property owner purchased it with knowledge of the lien; and this is an enforceable lien. He remarked there is a process in the Statutes, that if a party objects to an order they have 30 days to appeal from the date of the final order. That appeal was not taken, so he commented that the argument that the fine is excessive is not legally viable. He suggested reducing the lien to one-half, if paid within thirty days. Lee Schillinger, Attorney for Nigel Joseph Williams and the Jones Family, 4601 Sheridan Street, Hollywood, referred to a case in August 2004 in which the identical issue of the Statute was raised. In this case, Wilson vs. County of Orange, it was contended that the procedure violated the Federal Civil Rights Act. The Court concluded it did violate the Act and the fine was invalid. He remarked there was no due process and no notice given to the property owner and the Fifth District Court of Appeal has concluded that it does give rise to a claim under the Civil Rights Act. It is their position that the lien is facially invalid and unenforceable. He stated even though the fine is reduced to half, they feel it is still excessive. He requested and suggested the Commission agree to reduce the fine to zero, rather than having them contest this in Court. Attorney Ryan remarked we followed the Statute, and the Second District Court of Appeals said that there had to be something else besides an affidavit being submitted to confirm the fine that would allow the owner to come in and seek redress from the Code Board. This process was followed in the Abatement Hearing at which Shawn McCutcheon did participate. The Fifth District Court speaks to a different circumstance. It is a position of staff that the Statute that has a process that allows for a post deprivation hearing, provides the due process that is necessary which is an opportunity for the defendant to come before the board to have an opportunity to seek redress and to challenge the order that addresses the fine. The defendant did not challenge the violations; the challenge by the property owner was that the person with the power of attorney did not do his job because the property was not cleaned up. He recommended the fine not be abated to zero, and the offer to abate it to one-half is still fair and would still allow the owners of the property to get their investment based expectation out of the property. These are investors who bought a tax deed with a lien on the property, and a reduction in the fine would be a benefit to the owners of the property. Mayor McElyea remarked the City cleaned the property because he hauled the debris from the property. Minutes of Abatement Hearing 2 Dania Beach City Commission November 18,2004—6:00 p.m. • Attorney Schillinger commented the owners have a charitable non-profit organization and their intent is to build a Christian-based school to teach family values to children and their families. Attorney Ryan pointed out the school would not be located on this site; they would use the proceeds from the sale of this property to build a school on another site. Commissioner Flury motioned to accept Attorney Ryan's recommendation to abate the fine to $19,650, if paid within 30 days. Mayor McElyea passed the gavel to Commissioner Chunn and seconded the motion. Attorney Schillinger remarked his client paid $9,000 to the City of Dania Beach and requested the Commission reduce the fine to the $9,000 that has already been paid. Attorney Ryan clarified the Bid amount to purchase the property was $9,000 greater than the amount of the delinquent taxes. That money will come to the City, which would be a set off against the $19,650. The motion carried on the following 2-1 Roll Call vote: Commissioner Chunn No Mayor McElyea Yes Commissioner Flury Yes ® Pat Jones commented she hoped the Commission would think about these situations and how they deal with the citizens of Dania. She and her husband grew up in the City. When her brother-in-law came back from Kuwait four years ago, the City presented their family with a Key to the City. She thanked the Commission for reducing the fine, but hoped the City would recognize the citizens and treat them better in the future. 3.2 Request by Elisabeta Patriche, for abatement of Case 903-5438, for property located at 200 S.E. 41h Terrace (Folio #1203-55-0010) (Continued from September 16, 2004) Attorney Ryan advised this case had two violations: one for not maintaining grass and weeds; the other for overgrowth onto the sidewalk and street. The fine of$12,550 was reduced to $500 by the Code Board because of the testimony of Ms. Patriche that she had made the corrective action but had failed to effectively communicate to staff to have the property reviewed for compliance. It is staff s recommendation to adhere to the Code Board recommendation. Elisabeta Patriche remarked she had a company do the work on January 17`h, which was two weeks before her thirty day period. She called Cary Tullos and left messages to come and check the property. She presented an invoice for the service, which she did not pay until the City came to inspect the work. The company sued her and she had to hire an attorney to explain the situation for her. She stated on February 201h, Ms. Tullos showed up and agreed the job was completed and she could pay the bill for the tree service. Minutes of Abatement Hearing 3 Dania Beach City Commission November 18,2004—6:00 p.m. ® Attorney Ryan remarked there were a number of trees in the swale area that were in violation, which is the service provided by Affordable Tree Service. But, she was not in compliance because the weeds and growth along the fence had not been cleaned. Ms. Patriche remarked that her neighbor can verify that she complied because he cuts her grass every three weeks. She asked for consideration because the City did not respond to her. Commissioner Chunn motioned to abate the fine to zero. Laurence Leeds, Director of Community Development, remarked we cannot confirm the allegations by Ms. Patriche, and there are two sides to every story and he does not have the other story tonight. He remarked there was a misunderstanding in what needed to be done. Mayor McElyea commented when people come into compliance they should be rewarded and not beaten down. Commissioner Flury seconded the motion. The motion carried on the following 3-0 Roll Call vote: Commissioner Chunn Yes Mayor McElyea Yes Commissioner Flury Yes 3.3 Request by Allison Funes, for abatement of Case #02-3877, for property located at 5505 S.W. 44t11 Terrace (Folio #0136-10-0080) Attorney Ryan advised two violations existed: unlicensed and inoperable vehicles, and the installation of a paver driveway without permits. The fine ran for 353 days for a fine of$35,400; the Code Board recommended abatement to $5,000 because the owner was under the mistaken impression that he had a permit from the City of Ft. Lauderdale to install the paver driveway. Code Officer Will Dubisky had testified the applicant made application to the County prior to annexation, but had never received a permit to install the driveway. The property is in compliance and staff recommends the $5,000 reduction is fair. Jose Furies advised he tried to work out the problems with the Code Enforcement Officer. The Code Officer told him his vehicles had no registration, but he provided proof. Then the Code Officer did not like the trailer, so he moved it. He remarked the Code Enforcement Officer then told him he needed a license because he had tenants in his house. He argued that he did not have tenants in his house, but he does not know if that issue was dropped. He stated he applied for the driveway permit from Ft. Lauderdale, because he was in Broward County. He and his family did the work on the driveway, but then his property was annexed into the City. He produced a copy of the permit approved by Ft. Lauderdale. He said the Code Enforcement Officer told him he needed to pull a permit with the City of Dania Beach. He questioned why he should pay twice for a permit, and thought he should have been grandfathered-in. He remarked this is the eight time he has appeared on this matter. • Minutes of Abatement Hearing 4 Dania Beach City Commission November 18, 2004—6:00 p.m. ® Attorney Ryan remarked the permit was stamped from Dania in March 2004. The property was initially cited in January 2003. There is an approval from the County on September 18, 2001, which is strange because the property was annexed into the City on September 15, 2001. The zoning allows for the installation of a driveway, but there was no permit for the driveway. He remarked the applicant did make application to the County but there are no County approvals. The defendant did not follow up and get City approvals until after the fact. City Attorney Ansbro recalled when we did the annexation we entered into an agreement with the County for the transition. If an application was submitted before the annexation took place, the County was supposed to conclude what it started. He does not want to see someone punished for something that was not their fault. The City should not have finished the work. Mr. Leeds remarked it does not appear as though he applied to the County, but the property is in compliance. Attorney Ansbro clarified that he could not have obtained a permit from the City, even though the City was telling him he needed a permit from the City. He does not want to see him punished for the confusion. Commissioner Flury motioned to abate the fine to $500, with payment to be made within sixty days. Mayor McElyea passed the gavel to Commissioner Chunn and seconded the motion. ® Commissioner Chunn wanted the record to reflect that he would like the fine abated to zero. The motion carried on the following 2-1 Roll Call vote: Commissioner Chunn No Mayor McElyea Yes Commissioner Flury Yes Addendum 3.4 Request by David Forgues, for abatement of Case #CEBO1-0141, for property located at 1476 S. Dixie Highway (Folio #1203-00-0610) Attorney Ryan advised the property has used tires and the owner was cited on a recurring violation. The fine ran for thirty days for a $7,600 lien for failure to remove inoperable and unlicensed vehicles, failure to remove equipment and other materials stored on the property, and failure to repair or replace the fence. The Code Board recommended abatement to $3,000, and the Commission concurred with the time frame that passed. Mr. Forgues was not present for this case. Commissioner Flury motioned to continue the request until January 20, 2005, at 6:00 p.m.; seconded by Commissioner Chunn. The motion carried on the following 3-0 Roll Call vote: Minutes of Abatement Hearing 5 Dania Beach City Commission November 18, 2004—6:00 p.m. • Commissioner Chunn Yes Mayor McElyea Yes Commissioner Flury Yes 4. Adjournment Mayor McElyea adjourned the meeting at 7:04 p.m. CITY OF DANIA BEACH ATTEST: C. ELYE MAYOR-COMMISSIONER - 'LOUISE STILSON CITY-CLERK APPROVED: December 14, 2004 • • Minutes of Abatement Hearing 6 Dania Beach City Commission November 18,2004—6:00 p.m.