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06/02/2015 BUILDING/FLOOD BOARD OF ADJUSTMENT AND APPEALS MEETING MINUTES CITY OF CLEARWATER June 2, 2015 Present: Chair Pankaj Shah, Vice-Chair Gary R. Richter, Board Member Earle Cooper, Board Member Julie A. Daniels, Acting Board Member Gale Pollack Absent: Board Member Steven L. Klar Also Present: Jay Daigneault -Attorney for the Board, Laura Mahony -Assistant City Attorney, Matt Smith —Assistant City Attorney, Patricia O. Sullivan - Board Reporter The Chair called the meeting to order at 2:00 p.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. 3 —Approval of Minutes 3.1. Approve the minutes of the May 5, 2015 Building/Flood Board of Adjustment and Appeals meeting as submitted in written summation. Member Cooper moved to approve the minutes of the May 5, 2015 Building/Flood Board of Adjustment and Appeals meetings as submitted in written summation. The motion was duly seconded and carried unanimously. 4—Citizens to be Heard re Items Not on the Agenda: None. 5—Continued Requests: None 6 — New Request: Appeal to the Building Official's Decision 6.1. Case: BAA2015-05003, 1100 Cleveland Street Legal Description: BASSEDENA BLK A, LOTS 1 THRU 14 INCL & LOT 15 LESS E'LY 23FT & BLK B LOTS 14 THRU 21 INCL & 10FT X 10FT(S)T/A IN SW COR OF LOT 22 & LESS T/A IN NW COR LOT 21 AND VAC NE CLEVELAND ST & KILGORES H.A. SUB LOTS 1,2,10 & LOT 3 LESS 37FT X 60FT T/A IN NE COR &W 17FT OF S 137FT (S) OF LOT 4 Appellant Name: Clearwater Espacio Dev LLC Agent Name: Singer & O'Donniley, P.A. Description of Request: This appeal challenges the Building Official's determination that the building is in fact an unsafe building as defined in the City's Code, and further challenges the constitutionality of the Code's Process. Basis for Request: The Building Official's findings do not constitute an "unsafe building" as defined by Section 202 of the Standard Unsafe Building Abatement Code (1985) adopted in Section 47.051 of the City of Clearwater's Code of Ordinances. The application of the City's Code also constitutes a violation of Espacio's fundamental rights. Building - Flood 2015-06-02 1 See Exhibit: Staff Report BAA2015-05003 2015-06-02 Attorney Katherine O'Donniley, representing Appellant Clearwater Espacio Dev LLC "Espacio," said Espacio purchased 1100 Cleveland Street in 2004, stripped it, and then halted redevelopment efforts due to the recession. Attorney O'Donniley discussed the City's Notices of Unsafe Building, disconnection of the building's electricity in April 2015, and the Fire Marshal's May 2015 letter listing FFPC (Florida Fire Prevention Code) requirements not included in the final Notice of Unsafe Building. She said the City did not provide evidence of any immediate hazard. She said the City's Notice of Unsafe Building listed ambiguous standards and explanations and did not include a Code required report detailing conditions that made the building an immediate hazard to life or public safety. Attorney O'Donniley said City staff emails indicated the City hoped that threatening demolition would force the sale or redevelopment of Espacio's private property. She said staff did not consider demolition of the building would be an emergency. She referenced City staff email statements "typically our goal is to have a building that has been declared unsafe repair to a safe condition" and "they simply need to secure (get a fence up) and get the electric made safe by disconnecting if not by reworking" Attorney O'Donniley submitted: 1) Exhibit A- May 20, 2015 Structural Visual Inspection Report from RE&A (Ramos Engineering &Associates, LLC) concluded, "After our visual and non-intrusive inspection and review of the structure, it is our professional opinion within reasonable degree of engineering probability that the seventeen story building is structurally sound."; 2) Exhibit B - June 1, 2015 Structural Flammability Letter from RE&A concluded, "It is our professional opinion within reasonable degree of engineering probability that the structure in its current condition does not pose an immediate threat to itself or the surrounding community with regard to flammability."; and 3) Exhibit C - June 1, 2015 letter from VoltAir Consulting Engineers, Inc. stated that in consideration of plans to secure the structure, prevent entry beyond floor 2, and remove piled combustible materials and garbage in elevator pits, "it does not appear that there is any immediate threat related to FFPC issues, and it is anticipated that the items in the Notice which relate to the FFPC can be addressed through our professional review and through repairs or improvements to the site . . . " Attorney O'Donniley said the City did not order an appraisal until May 27, 2015 and did not provide evidence that repair costs exceeded 50% of the building's value. She said Espacio had a right to know the precise reason the building was declared unsafe. She said by refusing Espacio its right to repair the property and ordering demolition, the City violated its Code and the State Constitution. Attorney O'Donniley said the property had been marketed for redevelopment. She said Espacio already commenced or completed repairs on most items listed in the April 27, 2015 Notice of Unsafe Building; every item identified by the City could be repaired. She said Espacio had worked diligently with City direction to secure the premises; she said the site was secured as of May 28, 2015 but the City instructed that gaps between the fence and ground needed to be filled. She said Deichman Construction was in the process of filling the gaps, installing mesh on the second floor elevator shaft, and cleaning up debris. Building - Flood 2015-06-02 2 Attorney O'Donniley said the structure was not being used and had no occupants or live power. She said it was impossible for a secured, unoccupied, abandoned structure that was structurally sound to impose an immediate hazard. She requested the Board to reject the City's order to demolish the structure and allow time for the property owner to work with the City. Fire Marshal Steve Strong said Code Enforcement had contacted the Fire Department re 1100 Cleveland Street. After an initial look from outside, staff could see that people were accessing the building by moving the fence. Fire staff obtained property owner permission to inspect the structure. He said before he had Duke Energy disconnect the building's power supply, he verified that life safety critical communications did not rely on the building's cell towers; no permits were ever issued for the cell tower equipment, which lacked required suppression systems in case of fire. While disconnecting the power abated electrocution dangers, other dangers continued to exist and the building remained a fire hazard. Fire Marshal Strong presented photographs documenting conditions in the building related to the inoperable water supply, electrocution dangers from live exposed wires and multiple open junction boxes fed by spliced and exposed electrical cord, a large generator surrounded by trash and debris, an ancillary elevator shaft filled with water and debris posing a drowning hazard, unprotected elevator pits filled with debris, lack of guardrail protection for elevator pits and building edges, and bedding, personal items, shoes, clothing and trash belonging to homeless individuals throughout the building. Upper floor vandalism was impressive with significant graffiti, some painted over. Unfinished intermediate landings and stairs posed hazards to emergency workers. A photograph of a small fire in a box showed it had self extinguished. Fire Marshal Strong said the building lacked an operable fire alarm system and sprinklers; State Statutes required vacant buildings to maintain life safety equipment that is certified annually. All fire extinguishers had been discharged. An empty gasoline container on the first floor could have been filled and returned; every floor had a significant amount of combustible materials. BIC lighters were found. The nearest water source was one block away. It would be difficult for emergency workers to access water while wearing heavy equipment and dangerous for emergency workers to respond to any emergency in the building, especially at night. He would not send anyone into the building for an emergency unless human life was endangered. Fire Marshal Strong requested the Board to uphold the Unsafe Building Declaration to protect public safety employees. The building's owner did not respond to nor comply with the Fire Marshal order to provide the building with 24-hour security. In response to questions, Fire Marshal Strong estimated that installation of required fire safety equipment in the building would cost more than $1 million plus costs to meet separation requirements. The Fire Department stopped inspecting the structure when permitted construction on the condominiums began. Last year, the Fire Department could not gain legal access to the building when telephone calls to the owners were not returned. He would reconsider the order to raze the building if the owners made good faith efforts to meet the Fire Code, abate violations, remove all combustible items, and protect people from harm. Fire Marshal Strong said he had issued a No Entry Order. He granted permission to the contractor to enter the building, board the windows, and install fencing. He granted no one else permission to Building - Flood 2015-06-02 3 enter the building, including structural engineers and cleanup crews. The cell tower owners must provide a safety plan and obtain a permit to remove their equipment. Attorney O'Donniley requested a copy of Fire Marshal Strong's marked photographs. Attorney for the Board Jay Daigneault said according to Code, the Building Official was required to order the building to be demolished if repair costs exceeded 50% of the building's value. He reviewed the Code related to life safety hazards; the City adopted the State Fire Code with amendments. Sergeant Rodney Johnson of the Clearwater Police Department said the subject building attracted juveniles and vagrants for many years, straining police resources when having to respond to hundreds of calls for service. When responding to violations, the Police Department witnessed evidence of trespassing, vandalism, alcohol use, suspicious persons,juvenile issues, long-term homeless encampments, prolific drug use, prostitution, etc. Sergeant Johnson said the Police had no authority to stop trespassers. While property owners could complete a blanket trespass form providing the Police Department authority to issue trespass warnings and citations, this property's owner never completed the form nor erected any No Trespassing signs. Sergeant Johnson said the building was hazardous due to a lack of railings, numerous hiding places, open elevator shafts, unpoured stairwells and landings, and biohazardous materials such as hypodermic needles and human feces throughout the structure. Police dogs could not be used due to dangerous conditions. The condition of the building encouraged anti social behavior, vandalism, juvenile problems, lawlessness, etc. in the neighborhood. The Police Chief's order prohibited officers from entering the building unless human life was in danger. Sergeant Johnson said as weather rots fencing anchors, people soon will find ways to penetrate the building again if it remains unsupervised. Assistant Planning & Development Director Gina Clayton said previous building uses included retail, office, and condominiums. The building's most recent development order expired January 24, 2012 when the contractor left the site. In October 2012, the MCEB (Municipal Code Enforcement Board) declared the building abandoned and ordered the building's owner to comply with Code by April 24, 2013 or a $250 daily fine would be imposed. Since then, Espacio paid $107,750 toward its $192,000 fine, which continued to accrue. Ms. Clayton said the current status of the building was unsafe and as all development orders and permits expired, no permits could be issued for repairs until an application was submitted and a development order that established a use was approved. The City contacted the property owner on March 23, 2015 regarding the need to secure the building. As of May 29, 2015, access points to the building remained open and hardware on the second level needed to be completed. Assistant City Attorney Matt Smith said staff advised the property owner that the structure needed to have a developed use or be demolished. The structural integrity of the building was not an issue; however, the building must meet the FFPC. The City presented evidence that the structure's lack of security resulted in dangerous conditions, vandalism, vagrancy, graffiti, and homeless camps. Building - Flood 2015-06-02 4 The Police Chief saw people on the roof after staff met with the property owner in April. The building will not remain secure for long and again will provide a refuge for drug addicts, prostitution, the homeless, etc. Attorney Smith said the property owner allowed structural engineers and other contractors to enter the unsafe building contrary to Fire Marshal Orders. The property owner did not attempt to keep people out of the structure nor erect No Trespassing signage before the City's latest complaint. The cell phone towers were unpermitted and illegal. Attorney Smith said the MCEB's October 2012 order and imposed fine were insufficient to encourage the property owner to repair the structure. The City had to take action and disconnect the power due to the property's condition. The City was not forcing the owner to demolish the building but wanted a use to be determined and the building repaired. He requested that the Board support City discretion to demolish the building if it is deemed to be necessary. Attorney O'Donniley said the City must provide the property owner due process. She said photographs presented by the Fire Marshal were not current and did not constitute competent evidence. She said the City did not meet Code requirements when declaring the building unsafe and issuance of the unsafe building notice had been hasty. She said the City had no previous problem communicating with the property owner's representative regarding mold and paint issues, which were repaired. She said 11 items listed as FFPC requirements were not included in the City's Notices of Unsafe Building, which created a moving target for owner efforts to comply. Attorney O'Donniley said debris did not pose a threat. She said electrical issues did not pose a danger since the electricity was disconnected. She said an emergency requiring the building to be demolished had not occurred during the past 10 years. She said the property owner was moving forward with repairs. She said the property owner made a sincere effort to secure the 134 openings in the building, which took time. She said it was not relevant if the property owner was actively seeking redevelopment of the building; the property owner had constantly marketed the building. Attorney O'Donniley complained that today the City claimed the only way the property owner could move forward with repairs was to first obtain a development order. She said the owner had the right to repair the structure not in conjunction with redevelopment. She requested that the board deny the City's ability to demolish the building. Attorney Daigneault said the appellant did not have experts present to answer questions re structural soundness or flammability issues. He said the building did not have to be unsound to be unsafe. Attorney Daigneault said the record included the applicant's three exhibits and City exhibits including the application, photographs, PowerPoint, and Notice of Hearing. The Chair said the Appellant's PowerPoint was also part of the record. Attorney Smith said at the October 2012 MCEB meeting, the property owner's representative did not dispute the City's claim that the building was abandoned and requested one year to restart development or make repairs. As time passed, the building declined further. The City had the discretion to require demolition or provide the Appellant additional time. Building - Flood 2015-06-02 5 It was commented that the Structural Visual Inspection Report did not test the rebar to determine if it was properly placed and the Appellant's exhibits did not support demolition of the structure. Concerns were expressed that the City's demolition time line was unrealistic and the board was not in a position to determine what Codes the building needed to meet. Additional concerns were expressed that the property owner made no recent efforts to secure the building before the City's notification and today's meeting should have been scheduled after the City's appraisal was completed. In response to questions, Attorney Daigneault said the City was not required to demonstrate that necessary repairs met the 50% threshold. The City was asking the Board to determine if the remedy for the Unsafe Building was to raze it. He said if the Board supported the Fire Marshal's order, the Board was not declaring that the building was not reparable. Several motions died for lack of a second. Concerns were expressed that the appellant should be given a limited time to bring the building into compliance. It was recommended that the Fire Marshal be mindful of repair opportunities and cautious before ordering the structure demolished. The Building /Flood Board of Adjustment and Appeals recessed from 4:45 to 4:51 p.m. The Court Reporter restated the last motion. There was no second. With regard to the Appeal from the Building Official's decision or interpretation in Case BAA2015- 05003, Member Cooper moved to find action on the request to be within the Board's authority and to deny the appeal and affirm the Building Official's decision or interpretation based on evidence and testimony presented in the application, the Staff Report and at today's hearing, and hereby issue the Conclusions of Law that the criteria set forth in Code of Ordinances Section 47.035(1) are not met. The motion was duly seconded. Members Richter, Cooper, and Daniels, and Acting Member Pollack voted "Aye "; Chair Shah voted "Nay." Motion carried. 7 — Director /Building Official Comments: None 8 - Adjourn The meeting adjourned at 5:18 p.m. Attest: Chair Building /Flood Board of Adjustment & Appeals Board Report Building - Flood 2015 -06 -02 6 Meeting Date: Case Number: Agenda Item: Owner /Appellant: Address: REQUEST CITY OF CLEARWATER PLANNING AND DEVELOPMENT DEPARTMENT STAFF REPORT June 2, 2015 BAA2015 -05003 #1 Clearwater Espacio Development LLC 1100 Cleveland Street Appeal the Building Official's determination that the building is UNSAFE as defined in the City's code, and further challenges the constitutionality of the code's process. BACKGROUND /ANALYSIS • The property at this address has previously planned and permitted the construction seen at the site today. • The construction has stopped after the contractor quit the permit (BCP2007- 07641) on 1/11/12. The property has not been maintained since construction stopped. • The building and electrical systems have fallen into a state of disrepair and are dangerous and life threatening. • Determination of constitutionality is beyond the scope of this Board. FINDINGS OF FACT 1. The property is unsecured. 2.. The electrical systems are open and exposed. 3. The Fire Marshal cited the property owner for the dangerous and life threatening situation and disconnected the power. 4. Police have frequent activity at the site. 5. The Board must determine is the building UNSAFE — yes or no. CONCLUSIONS OF LAW 1. The property, building, and electrical on this site present a danger to the public. 2. The property fits the code definition of UNSAFE. RECOMMENDATION TO THE BOARD Uphold the declaration of UNSAFE. 1