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02/28/2001MUNICIPAL CODE ENFORCEMENT BOARD MEETING CITY OF CLEARWATER February 28, 2001 Present: Helen Kerwin Chair Franke Huffman Member Joyce Martin Member David Allbritton Member Peter Caffentzis Member Absent: Lawrence Tieman Vice-Chair Sheila Cole Member Also Present: Leslie Dougall-Sides Assistant City Attorney Andy Salzman Attorney for the Board Sue Diana Secretary for the Board Patricia O. Sullivan Board Reporter The Chair called the meeting to order at 3:00 p.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. The Chair outlined the procedures and stated any aggrieved party may appeal a final administrative order of the Municipal Code Enforcement Board to the Circuit Court of Pinellas County within thirty (30) days of the execution of the order. Florida Statute 286.0105 requires any party appealing a decision of this Board to have a record of the proceedings. ITEM #1 - Public Hearings 1. PUBLIC HEARINGS 1a) Case 39-00 (Cont. from 9/27/00 & 11/8/00) Stowell Properties, LLC 2815-2817 Gulf to Bay Blvd. (Development Code/Sign) - Fox Board Secretary Sue Diana read the Affidavit of Violation and Request for Hearing. Notice of Violation was issued on June 16, 2000, mailed certified, regular mail, and posted on the property and at City Hall. Service of the notice of hearing was obtained by certified mail. Assistant City Attorney Leslie Dougall-Sides said the property owner, Stowell Properties, LLC, also owns the billboard structure and is solely responsible for it. Stowell Properties, LLC has not filed litigation along with sign companies who have pending lawsuits in Circuit Court against the City related to nearby billboards. The billboard exceeds the code's height and size restrictions and landscaping requirements. Records indicate the original permit allowed a sign with 400 square feet on each face. The sign exceeds that size. Minutes from a 1981 meeting, provided by Mr. Stowell, indicate a larger sign was approved for use as a directional sign for a residential development. The billboard does not meet this use. The City does not have any record of these minutes. Ms. Dougall-Sides reviewed City efforts to reduce sign blight. In 1985, the City Commission approved an ordinance to change the dimensional requirements of signs, which included a 7-year amortization period requiring signs to be in compliance or be removed by October 1992. A 1988 ordinance addressed exceptions on Gulf-to-Bay Boulevard and also provided a 7-year amortization period with a compliance deadline of January 19, 1996. The City Commission repealed the previous Land Development Code and approved the Community Development Code in 1999. The new code includes a section listing transitional rules, which indicate signs are subject to amortization provisions in the previously adopted Land Development Code. Ms. Dougall-Sides said the sign is exempt from compensation provisions related to the federal aid primary system of highways and is not legally nonconforming. She stated the Appellate Court had affirmed FDOT’s (Florida Department of Transportation) refusal to issue a permit for the subject billboard. Ms. Dougall-Sides reported Planning Director Ralph Stone had rejected Allan Stowell’s application for vested rights. No appeal of the determination was made by Mr. Stowell. She requested the billboard be found in violation and recommended the final order be tied to the outcome of related litigation. Development Services Director Jeff Kronschnabl reviewed the City’s sign amortization program. Since 1993, staff has inspected more than 13,000 signs. Of 40 billboards, 9 remain. The MCEB (Municipal Code Enforcement Board) previously found 8 of those signs to be in violation. Those cases are now in Circuit Court. He presented photographs comparing Gulf-to-Bay Boulevard before sign regulations were initiated with the current vista. Glen Smith, representative for Allan Stowell and Stowell Properties, LLC, said sign blight is not the issue. In response to questions from Ms. Dougall-Sides, Code Enforcement Inspector Mary Jo Fox reviewed her training and certification. She inspects signs Citywide and inherited sign cases from a previous inspector, who left the City. She initially inspected the sign on April 13, 2000 as part of the sign amortization program. She said the June 6, 1984 application for the subject sign had requested a 400 square-foot sign. She explained the methods she used to measure the sign, indicating its face is approximately 49 feet by 14 feet. None of the required 12 square-feet of landscaping around the sign structure was present. She identified Exhibit 12 as notations of her measurements and Exhibit 13 as measurements taken by City Engineering staff. On June 16, 2000, Ms. Fox said the billboard still violated code and she issued a Notice of Violation. She reinspected the sign on July 6, 2000, and found the billboard to remain in violation. On August 1, 2000, Ms. Fox issued an Affidavit of Violation & Request for Hearing. As of this morning, the violation remains. Ms. Fox identified City Exhibit 7 as photographs of the subject property taken on April 13, 2000. Staff recommends the property be brought into compliance within 15 days or a fine of $250/day be imposed. In response to a question from Mr. Smith, Ms. Fox deferred questions related to the interpretation of code to the Legal Department. She said a second Notice of Violation was issued as the first one was incorrect. Mr. Kronschnabl said the Planning Director, not Code Enforcement Inspectors, interprets the code. In response to questions from Mr. Smith, Ms. Fox said when issuing the Notice of Violation she did not consider a certain definition of nonconforming signs nor did she consider the repeal of the previous code, including Chapter 44. Ms. Dougall-Sides said it is a matter of interpretation to conclude that SR 60, east of US 19N, is a federal aid primary highway. She said the related statute indicates cities are not precluded from adopting ordinances regulating signs. She said this issue will be determined in parallel litigation. Mr. Smith said the sign is exempt from code sections cited. Ms. Dougall-Sides submitted City Exhibits 1 – 17. The meeting recessed from 4:12 to 4:21 p.m. Allan Stowell stated he owns Stowell Properties, LLC, which owns the billboard. He said the City had permitted construction of the billboard in 1981. He presented aerial photographs of the billboard. He said he owns most of the nearby property. He said the sign is located on SR 60, approximately one mile east of US 19N. He said he had filed an application for a variance on October 6, 1981 to erect a 14 feet by 48 feet double face sign. The City board approved the variance on November 18, 1981. He said the Kapok Tree restaurant was an original tenant. He said he still plans to construct a nearby condominium project. Concern was expressed, according to City Engineer measurements, the billboard may be as tall as 42.64 feet, when only 40 feet is permitted. Mr. Stowell said the sign is the same height now as when it was constructed. The advertising agreement with Hooters dates back to 1992. Mr. Smith reviewed submitted documents, including information on the federal aid primary system, and a map indicating this section of SR 60 is on the national highway system. He said the billboard owner is required to obtain a permit for billboards on the national highway system, which come under the jurisdiction of the State and Federal government. He said FDOT did not issue a permit due to the City’s objection. He said FDOT Right-of-Way Director Ken Towcimak had written the City, stating it is likely the City will be required to pay just compensation for removal of the subject outdoor advertising sign. Mr. Smith stated FDOT had issued an order staying the removal of the sign, subject to the pendency of litigation between National Advertising and the City. Mr. Stowell stated in 1997, income from the billboard accounted for 59% of his income. He said the sign has been maintained in the same condition as when it was built and should continue to exist. Ms. Dougall-Sides noted the advertising agreement with Hooters had expired in 1995. Mr. Stowell said the lease agreement continues month-to-month. In response to a question, he said a second billboard on the property was removed shortly after it was installed. Ms. Dougall-Sides indicated the City had notified Mr. Stowell in August 1994 regarding the amortization program. Mr. Smith said the City cannot remove the billboard without paying just compensation due to its permitted location on a controlled highway. He said the sign is nonconforming, as defined by code, and should be allowed to stay. He said the sign is not subject to previous amortization schedules. He believed the code’s transitional rules indicate the sign should be grandfathered due to variances previously granted. Ms. Dougall-Sides said the amortization period had expired on January 1996. If FDOT had designated SR 60 as part of the federal highway system in November 1995, the City should owe no more than two months of just compensation. The owner had almost seven years to recoup his investment before the amortization period had expired. The variance was abated or voided in 1996, at the end of the amortization period. She said the billboard is not legally nonconforming as it was to comply or be removed by January 1996. She said the court has not struck down any portion of the code. Mr. Smith said the Notice of Violation indicates the sign violates current code height and size restrictions. He noted in 1996, the City Attorney had indicated at a City Commission meeting that the billboard had been erected legally. He said the City is trying to reenact Chapter 44 through the transitional rules. He said the code’s transitional rules are too general. He said the designation of SR 60 was changed before the amortization period ended and nullified the requirement to remove the sign. Selections from the March 21, 1996 and May 7, 1998 City Commission meetings were shown. Mr. Stowell agreed to be bound by the decision of parallel litigation. He said he is a small business owner and removing the billboard would be a hardship for him. He said the City is punishing him by denying his requests for permits to develop his land due to the presence of the billboard. Discussion ensued regarding similar cases previously determined. Member Huffman moved that concerning Case 39-00, the Municipal Code Enforcement Board has heard testimony at its regular meeting held on February 28, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: FINDINGS OF FACT: After hearing testimony of Code Inspector Mary Jo Fox and Development Services Director Jeff Kronschnabl for the City and Glenn N. Smith, Esquire, and Allan Stowell for the property and billboard owner, and viewing the evidence, City Exhibits 1-17 (Ex. 1 – 1994 amortization letter; Ex. 2 – 2000 amortization letter; Ex. 3 – notice of violation with certified receipt dated 6/16/00; Ex. 4 – 8/16/00 affidavit of posting; Ex. 5 - code sections cited; Ex. 6 – property appraiser printout; Ex. 7 – composite photographs; Ex. 8 – affidavit of violation and request for hearing dated 8/1/00; Ex. 9 – notice of hearing dated 9/1/00; Ex. 10 – 9/5/00 Hubbard letter re transfer of ownership; Ex. 11 – 6/6/1984 sign permit application; Ex. 12 and 13 – sign measurements; Ex. 14 – DOAH Case Information 97-1417; Ex. 15 – 11/18/1981 Board of Adjustment & Appeal of Signs minutes; Ex. 16 – 9/14/00 vested rights application; and Ex. 17 – composite exhibit: Ordinances 4753-88, 4035-95, 5257-92, City Code, Division 18 – signs, Sec. 1-106 – transitional rules and Sec. 44.55 – nonconforming signs), it is evident the property is in violation of Secs. 3-1803(Y) 3,1806(B)(1)c, d, e, & f. Specifically, Secs. 3-1803(Y) 3,1806(B)(1)c, d, e, & f and Sec. 44.55(3)(b) of the previous land development code required sign compliance or removal by 1/19/96. The billboard/sign still exists as a nonconforming sign. The transitional rules of the current land development regulations Secs. 1-106.B and 106.G require that signs/billboards not lawfully existing at the time of this development code be brought into compliance with this code. The billboard/sign fails to be lawful under the current code. and Stowell Properties, LLC Exhibits 1-17 (Ex. 1 notice of violation; Ex. 2 - 9/5/2000 letter to Diana from Hubbard, Esq.; Ex. 3 - 10/26/81 notice of sign appeal board meeting; Ex. 4 - minutes of 11/18/81 meeting – Board of Adjustments & Appeal on Signs; Ex. 5 – advertising agreement for outdoor bulletin display dated 10/13/92; Ex. 6 – 9/3/81 permit #6361D; Ex. 7 - Clearwater Land Development Regulations, Article 3: Development Standards, Division 18 Signs; Ex. 8 - Clearwater Land Development Regulations, Article 6: Nonconformity Provisions; Ex. 9 - Clearwater Land Development Regulations, Article 8: Definitions and Rules of Construction; Ex. 10- Clearwater Land Development Regulations, Article 1: General Provisions; Ex. 11 – Clearwater Land Development Regulations, Article 4: Development Review and Other Procedures, Sec. 4.609 Vested Rights; Ex. 12 – 1992 Clearwater Code Sec. 44.55-44.58; Ex. 13 – Ordinance 6348-99; Ex. 14 – deposition of Anita Vandervald, P.E. taken 7/24/00; Ex. 15 – F.S. 479.15; Ex. 16 – 23 USCA 131; Ex. 17 – 4/10/96 memorandum to regional administrators from U.S. Department of Transportation – Federal Highway Administration; Ex. 18 – 7/13/00 Order Staying the Removal of Outdoor Advertising Signs; Ex. 19 – Complaint for Declaratory and Injunctive Relief and Damages in case styled: National Advertising Company vs. City of Clearwater, in the Sixth Judicial Circuit, in and for Pinellas County, Florida; Case No. 99-3844-CI-11; Ex. 20 – Stowell’s vested rights application 9/26/00; Ex. 21 – 10/11/96 letter to Towcimak from Akin; Ex. 22 – 10/2996 letter to Towcimak from Akin; Ex. 23 – 5/16/00 letter to Jonson from Towcimak; Ex. 24 – 3/15/00 letter to Roberto from Towcimak; Ex. 25 – Palm Beach County National Utility Co., Inc. vs Palm Beach County Health Department, 390 So.2d115(Fla. 4th DCA 1980); Ex. 26 – R. K. Overstreet, as Tax Collector of Dade County vs. Robert L. Blum, etc., et al., 227 So.2d 197 (Fla. S.Ct. 1969); and Ex. 27 – State of Florida ex. Rel. Joseph J. Springer vs. Montie Smith, as Chief of Police, City of Dania, 189 So.2d 846 (Fla. 4th DCA 1966), it is evident the property is in violation of Secs. 3-1803(Y), 3-1806(B)(1)c, d, e, & f. Specifically, Secs. 3-1803(Y), 3-1806(B)(1)c, d, e, & f and Sec. 44.55(3)( b) of the previous land development code required sign compliance or removal by 1/19/96. The billboard/sign still exists as a nonconforming sign. The transitional rules of the current land development regulations Secs. 1-106.B and 106.G require that signs/billboards not lawfully existing at the time of this development code be brought into compliance with this code. The billboard/sign fails to be lawful under the current code. CONCLUSIONS OF LAW: Stowell Properties, LLC, by reason of the foregoing is in violation of Secs. 3-1803(Y), 3-1806(B)(1)c, d, e, & f of the code of the City of Clearwater, Florida, in that the Respondents have failed to remedy the cited violation(s). ORDER: It is the Order of the Board that Stowell Properties, LLC is to correct the aforesaid violation within 60 days after the court's final judgment in National Advertising Company vs. City of Clearwater Case #99-3844-CI-11. The burden shall rest upon Stowell Properties, LLC to request a reinspection by the Code Inspector to verify compliance with this Order. In the event the aforesaid violation is found, in subsequent proceedings by this Board, not to have been corrected by the specified compliance date, Stowell Properties, LLC may be ordered to pay a fine in the amount of two hundred fifty and no/100 dollars ($250.00) per day for each day the violation continues beyond the specified compliance date. If Stowell Properties, LLC does not comply within the time specified, a certified copy of the Order imposing the fine may be recorded in the Public Records of Pinellas County, Florida, and once recorded shall constitute a lien against any real or personal property owned by Stowell Properties, LLC pursuant to Chapter 162 of the Florida Statutes. Any aggrieved party may petition the Board to reconsider or rehear any Board Order resulting from a public hearing. A petition for rehearing must be made in writing and filed with the Board Secretary no later than thirty days after the execution of the Order and prior to the filing of any appeal. Upon receipt of the petition, the Board will consider whether or not to reconsider or rehear the case. The Board will not hear oral argument or evidence in determining whether to grant the petition to reconsider or rehear. The motion was duly seconded and carried unanimously. 1b) Case 04-01 Edward & Sharon M. McGettrick 2471 Chaucer Street (Development Code) – Doherty AND 1c) Case 05-01 Jamie L. Wright 2430 Moore Haven Dr. W. (Public Nuisance) – Phillips AND 1d) Case 06-01 Pablo Sanz 2403 Flint Lock Drive (Public Nuisance) - Phillips AND 1e) Case 07-01 John A. Eifert 1437 Court Street (Development Code/Landscape) - Kurleman AND 1f) Case 08-01 Herbert J. Furey & Joan G. Graf 18675 US19N, Lot 337 (Building Code) - Coccia Member Huffman moved to continue Case 06-01 to August 22, 2001, and to continue Case 04-01, Case 05-01, Case 07-01, and Case 08-01 to March 28, 2001. The motion was duly seconded and carried unanimously. Item #2 – Unfinished Business 2a) Case 43-00 - Affidavit of Compliance McDowell Holdings Inc (McDowell Dental Office) 1433 Court Street (landscape) - Kurleman Member Huffman moved to accept the Affidavit of Compliance for Case 43-00. The motion was duly seconded and carried unanimously. Item #3 – Other Board Action/Discussion 2a) Election of Chair & Vice-Chair Member Huffman moved to nominate Helen Kerwin as Chair and Lawrence Tieman as Vice-Chair. The motion was duly seconded and carried unanimously. Item #4 – New Business – None. Item #5 – Nuisance Abatement Lien Filings John Asklipious COD2000-05122 714 North Glenwood Avenue Oak hills, Blk C, Lots 2 and 4 and $352.50 E18' of Lots 1 and 3 Dave Burton Jr Tre COD2000-05315 1500 South Greenwood Avenue Belmont 2nd Addition, Blk E, Lots 1-2 $ 308.00 Angela Glidden COD2000-05989 1128 Palm Bluff Street Greenwood Park #2, Blk F, Lot 47 $ 250.00 Edward Lewis COD2000-04505 802 Pennsylvania Avenue North Pine Crest Sub, Blk 5, Lot 5 $ 250.00 Teretha Pugh and Phillip R. Joseph COD2000-05273 1630 North Washington Avenue Fairmont Sub, Blk A, Lot 14 $ 250.00 Irving Sanchez Jr COD2000-06137 409 North Garden Avenue Hart's Addition to Clearwater, Blk 2, Lot 13 $ 250.00 W S F Trust 8/6/90 COD2000-05257 1022 North Missouri Avenue Springfield #2, Blk 2, Lot 7 $ 291.20 Member Huffman moved to accept the nuisance abatement lien filings. The motion was duly seconded and carried unanimously. ITEM #6 - Approval of the Minutes Member Martin moved to approve the minutes of the regular meeting of January 24, 2001, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. ITEM #7 - Adjournment The meeting adjourned at 6:30 p.m.