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2020.10.29_CEB_Minutes_RegularTOWN OF HIGHLAND BEACH CODE ENFORCEMENT BOARD MEETING MINUTES Town Hall / Commission Chambers Date: October 29, 2020 3614 South Ocean Boulevard Time: 2:00 P.M. Highland Beach, Florida 1. CALL TO ORDER Chairperson Burnich called the meeting to order at 2:00 P.M 2. PRESENT UPON ROLL CALL Member Joel Leinson Member Bryan Perliman Member Michael Cherbini Member Jane Perlow Member Myles Schlam Vice Chairperson Paul Resnick — participated as a resident, not as a board member Chairperson Thomas "Tim" Burnich Town Attorney Leonard Rubin Code Enforcement Officer Jason Manko Building Official Jeff Remas Deputy Town Clerk Beverly Wright 3. PLEDGE OF ALLEGIANCE The Code Enforcement Board led the Pledge of Allegiance. 4. APPROVAL OF THE AGENDA Chairperson Burnich asked the board members if there were any additions or deletions to the agenda. Hearing none, he called for a motion to approve the agenda as presented, which resulted as follows: MOTION: Member Perliman moved to accept the agenda as presented, Seconded by Member Leinson, which passed (6 to 0) unanimously. 5. PUBLIC COMMENT There were no public comments. 6. APPROVAL OF MINUTES A. September 16, 2020 Code Enforcement Board Meeting Minutes Page 2 of 8 October 29, 2020 Chairperson Burnich asked if there were any corrections to the September 16, 2020, Regular Meeting Minutes. Hearing none, he called for a motion to approve the minutes as presented, which resulted as follows: MOTION: Member Schlam moved to approve the minutes of September 16, 2020 as presented, Seconded by Member Perliman, which passed (6 to 0) unanimously. 7. UNFINISHED BUSINESS There was no unfinished business. 8. NEW BUSINESS A. CASE #2020-104,1016 Grand Court (Kenneth & Carol Pierce) Code Section: 30-68(G)(1)(A) Description: Observed rental of boat slip prohibited within town limits. Please remove boat from property. Observed guest boat stored on property for greater than 60 days, prohibited. Please remove boat from property or have ownership changed to reflect the same on both property and vessel. Legal: 9-47-43, TH PT OF N 1/2 OF GOVLT 2 E OF FIND CNL K/A LT 16 OF Proposed Boca Highlands & 6.30 FT Strip LYG W of & adj thereto. PCN: 24-43-47-09-00-002-0040 Chairperson Bumich asked the board members if they had any ex parte communications to disclose. Hearing none, he opened the violation hearing and asked for those giving testimony to please raise their right hands, state and spell their full names, individually, and state the application they were affiliated with, before being sworn in. Deputy Town Clerk Beverly Wright swore in those giving testimony. Chairperson Burnich turned the meeting over to Code Enforcement Officer Jason Manko for his testimony and recommendations regarding the violation. Code Enforcement Officer Manko introduced himself as the Code Compliance Inspector for the town and gave testimony that he had submitted evidence, proof of service, supporting documents and photos taken of the property (1016 Grand Court) that fairly and accurately represented what was observed during inspection and reinspection of the property on September 17, 2020 and October 29, 2020. He cited the following violations, the rental of boat slips within town limits, in violation of town Ordinance 30-68 (g)(1)(a) and the storage of a guest boat in excess of 60 days, in violation of town Ordinance 30- Code Enforcement Board Meeting Minutes Page 3 of 8 October 29, 2020 68 (g)(1)(b) and that a notice was sent and posted at the address and on the property at Town Hall. He stated that the violations remained the same and that the town was recommending 30 days for the owners (Pierce) to comply with the violations at a cost of $250.00 per day and $250.00 for the cost of prosecution. Chairperson Burnich asked the board members if they had any questions of Code Enforcement Officer Manko? Member Schlam asked about the violation cost and the excess 60 days expiration date. Code Enforcement Officer Manko referred to his early recommendations, advised that the violator would need to come into compliance with the violations and that the boat had been occupying the slip since June 31d Member Leinson asked about conversations that would give insight on why the owners were in violation. Code Enforcement Officer Manko advised that he had received an email from the owners' legal counsel, stating the owners rented the boat dock space to other people living in Boca Highlands HOA and about the time limits a boat could remain there. Member Perilman asked when were the violations first observed? Code Enforcement Officer Manko commented that the boat was present about one year ago, subsequently moved and resurfaced sometime around June, which is the first time he saw it. He was unaware it was being rented. Chairperson Burnich advised that the offender could now give testimony and to please provide a name and affiliation with the violation. Attorney David Roy introduced himself (inaudible) on behalf of Ken and Carol Pierce. He advised that Mr. Pierce was with him and was identified as Maggie Brawley on Zoom. Attorney Roy gave testimony on submitting, and exchanging conversations and emails with Code Enforcement Officer Jason Manko and Attorney Len Rubin concerning the incorrect folio number for the violation. He spoke about the 23 docks and/or boat slips in the Marina governed by the Declaration of Covenants and Restrictions for Grand Cay Estates at Boca Highlands Yacht Basin and of 40 pages of rules and regulations for maintaining, renting, good repair of the boat slips and that there was no restriction whatsoever on rentals of a boat slip. He advised letters were sent to five associations surrounding Bramer Isle, only one response was received and it reported no such restrictions on renting boat slips. He stated a resident of Dalton place condominium, Tom Ernest, rented the slip and that if his client owned the slip in a different name, the ordinance would not apply because he would not be within 1,000 feet of what he owned. He said his client has owned and has rented the docks out for 27 years and there has never been an issue. His client is making about $300.00 a month. He advised it is their position that the ordinance is not applicable for this particular location of boat slips and as such, they are not in violation of the ordinance. He stated that unless enforcement is against all 23 other boat slip owners, it is selective enforcement against his client or it is being required that his client own one Code Enforcement Board Meeting Minutes Page 4 of 8 October 29, 2020 percent of the person's boat, so he is not in violation of the ordinance. He said it does not make any sense for his client to have to violate the law in order to become compliance with the law. Bramer Isle rents out boat slips as well, but nobody is citing them. It has to be fair for everybody. If there is a one hundred percent restriction on renting boat slips, then it is what the ordinance should say, instead of the auxiliary or accessory use. His client does not use this as an accessory to his house and he was willing to answer any questions the board had of him. Chairperson Burnich asked if staff had any questions of the offender's attorney? Code Enforcement Officer Manko explained that his interpretation of the ordinance for Accessory Marine Facilities, shall not be used for commercial purposes, lead him to believe that marine facilities should not be rented or leased. The ordinance if it is not being leased and a guest is staying there, limits that guest to 60 days of keeping their boat there. He opened the case because it was his interpretations of the ordinance. It is up to the board to decide whether the interpretations are correct or incorrect. Chairperson Burnich ask Attorney Rubin his interpretation of the ordinance? Town Attorney Rubin advised it was ultimately their interpretation. He represents the board and was not advocating the town's position. He could not work in dual roles. However, his understanding was that it is not a Marina, they were deeded slips. He said on the south side of Bramer Isles there is actually a Marina where slips are leased to the residents. As far as he knows, it is an anomaly. He is not sure how or why it came to be. It is a rather unusual situation. The town's position, as Code Enforcement Officer Manko expressed, is the slips are not to be leased out to third parties. He advised Town Planner Ingrid Allen was part of the Zoom meeting, if there were questions of her. Member Leinson asked of the 23 deeded spaces, how many were leased out to boat owners who may not own spaces at all? Chairperson Burnich commented he was not aware and that a complaint would be needed for Code Enforcement Officer Manko to investigate. Member Leinson asked if the Pierce's were the only violators? Chairperson Burnich responded he was not aware of any others. Code Enforcement Officer Manko advised he had received complaints for a couple of personal watercrafts and a couple of other boats that were registered to owners of the slips. He is awaiting the Police Department's response regarding matching owner registration numbers. If the items do not belong to the slip owners, cases would be opened. Chairperson Burnich asked the offender if there was rebuttal testimony or any questions of the staff? Conversation between Attorney Roy, the Board and Code Enforcement Officer Manko continued regarding clarity of aforementioned testimony regarding accessory use, registration, ownership of boat slips, LLC and the prohibit of renting of docks. Code Enforcement Officer Manko read section 30-68(g)(1)(a) into records and stated that he believed the section to be kind of a blanket (shall not be used for commercial). That there is a blanket prohibition on renting boat slips. Attorney Roy commented that there is Code Enforcement Board Meeting Minutes Page 5 of 8 October 29. 2020 no principal residence for the docks; they are deeded boat slips, as Attorney Rubin stated. He asked what are they an accessory to, themselves? He gave comment about the definition of a boat slip and about how Grand Cay Estates of Boca Highland Yacht Basin provided boat slips and could be rented out or be used. He requested Town Planner Allen's opinion on the matter. Town Planner Allen advised that staff had not completed an assessment or analysis of the parcels and she could not provide an opinion. However, she did add that she was looking at the permit that use the table and the only reference in the code for the word Marina is for commercial Marina, code section 30-67(b), which is a list of permitted uses that clearly prohibits in every single zoning district in the town, commercial Marina. She advised that the code does not define what a commercial Marina is. She was just advising the board. Chairperson Burnich asked Attorney Roy if he had any further comments or questions? Attorney Roy reiterated that there were 23 boat slips and that he knows of at least three boat slips that are leased out by others than Mr. Pierce. Town Attorney Rubin asked Attorney Roy if he was asking about them having Riparian right? Attorney Roy asked if the docks transferred on the sale of the property? Town Attorney Rubin advised, no. The docks are owned separately. His understanding is the docks were deeded separately. It is an anomaly. Chairperson Burnich asked if Mr. Pierce were to sell his residence, what would happen to the dock that he owns? Attorney Rubin advised that Mr. Pierce would still own the dock. The dock is not tied to his residence. He owns a residence on the intracoastal, but he owns the water parcels upon which the docks are constructed in the Basin and they are not tied together. Member Leinson stated that it would appear to him that the intent of the bylaw was to prevent owners from renting out docks adjacent to their property for commercial purposes. Then it goes into the question of what does commercial mean? Does it mean a fishing boat? Does it mean the paying of a fee to rent a dock by a pleasure boat? He is not quite sure how it applies, so he goes back to what was said by Attorney Rubin. It is an anomaly. It is unique. It possibly does not apply to the code as it is written and maybe there is no problem with it. Chairperson Burnich commented that it maybe something the Town Commission has to straighten out. Attorney Rubin said he has been working with waterfront communities for almost 30 years and has never seen anything like this. Attorney Roy suggested that further investigation is done among Town Planner Allen, Attorney Rubin and Code Enforcement Officer Manko and himself and if it is determined that this constitute a commercial use or if they are deemed an accessory, he can be persuaded. Member Schlam commented in his opinion it is commercial. If you are leasing a slip or a dock that is a commercial transaction. Member Perlow concurred. Further conversation continued among the members and Attorney Roy regarding commercial transactions, Code Enforcement Board Meeting Minutes Page 6 of 8 October 29, 2020 Town Commissions need to clarify exactly what the rule is, and the covenants and restrictions that the client purchased the boat slips under. Chairperson Burnich asked if there were any other comments? Attorney Roy commented he would appreciate the town rolling this over until further clarification is obtained as to commercial versus non-commercial use and whether this anomaly, as Attorney Rubin said, applies to this particular ordinance. He said that if his client is in violation, he will ask him to move the boat. He said his client is not a rules violator and that Code Enforcement Officer Manko could verify that his house has never had a code violation. The boat slips had been maintained for 27 years. Chairperson Burnich advised that the public hearing was closed and asked the board how they wanted to proceed and what their opinions were? Member Schlam commented on section 30-68 (g) (1) (a) and (inaudible) and asked whether or not it falls in the definition of an Accessory Marine Facilities. He asked was it definitive that this specific slip area is considered an Accessory Marine Facilities and not some kind of hybrid? If it is considered an Accessory Marine Facilities, the statute is clear that it should not be used for commercial purposes and slips should not be rented to a person who does not reside in that dwelling. He advised that he is not saying he agrees with it. He said the board's job is to enforce the code as it is constructed. He asked for Town Commissions clarification of the statue. He stated the issue of selective enforcement was another issue and gave opinion on why the board was meeting today. Member Leinson said that if this one was allowed to pass, what happens with the next five or ten complaints the board gets about this particular Marina? He made a suggestion to not put any penalty on this and ask the Town Commission to clarify exactly what the rules are for equality of future alleged violations. Chairperson Burnich commented that a case was before the board about a year and a half ago and the individual was given 90 days to remove the boat. The individual did not like the board decision, took it to Palm Beach County Court and lost. Attorney Rubin advised that that case was a slip with a boat dock or a slip behind the person's home. Member Leinson commented that the statute may not apply because the dock is not attached to the home. It is in a separate location along with a multitude of other docks and he thinks it is outside the purview of the statute, so therefore, there is no foul. Member Schlam asked for clarification on the definition of Accessory Marine Facilities, so the board could determine whether it actually falls within that statute. Chairperson Burnich advised that he do not think the town allows any commercial operations except for the hotel. All other commercial operations are considered violations. Code Enforcement Board Meeting Minutes Page 7 of 8 October 29, 2020 Town Planner Allen read Accessory marine facilities section 30-68(g)(1) into record. Accessory use assessment marine facilities including docks, piers, launching facilities, boat basins, freestanding pilings and lifting and mourning devices, are permitted as accessory uses in all residential zoning districts. She also read the definition of an Accessory Structure section 30-131 into records. A detached building or other improvement which is clearly incidental to the principal structure and is subordinate in area extent size or purpose and serves only the principal structure. Chairperson Bumich asked if there was a motion to approve Code Enforcement Manko's recommendation or not? He asked Code Enforcement Officer Manko to read his recommendation. Code Enforcement Officer Manko commented that the town recommends 30 days to comply with the existing violations at a cost of $250.00 per day and $250.00 for the cost of prosecution. Chairperson Burnich asked if there was a motion to that effect? MOTION: Member Schlam made a motion to move for 90 days continuance on item 8A to get clarification from the Commission on the statue. Member Perliman seconded the motion, which passed (6 to 0) unanimously. 9. ANNOUNCEMENTS November 05, 2020 1:30 P.M. Town Commission Meeting November 11, 2020 Town Hall closed in observance of Veterans Day November 12, 2020 9:30 A.M. Planning Board Regular Meeting November 17, 2020 1:30 P.M. Town Commission Meeting 10. ADJOURNMENT There being no further business to come before the board, Chairperson Burnich called for a motion to adjourn the meeting. MOTION: Member Perlow moved to adjourn the meeting. Member Schlam seconded the motion, which passed unanimously. The meeting was adjourned at 2:46 PM. Code Enforcement Board Meeting Minutes October 29, 2020 Page 8 of 8 APPROVED at January 12, 2021 Code Enforcement Regular Meeting ♦t!\\\ ATTEs7 q . C` Rd _ � F - rly Wright Deputy Town Clerk 7h,,v1 I 57 17gvnGh Thomas Burnich, Chairperson Transcribed by: Beverly Wright Dat Disclaimer: Effective May 19, 2020, per Resolution No. 20-008, all meeting minutes are transcribed as a brief summary reflecting the event of the meeting. Verbatim audio/video of this meeting can be found on the town's Media Archives & Minutes webpage: 10.29.2020 Code Enforcement Board %lit,, Minutes Final Audit Report Created: 2021-01-12 By: Bevedy Wright (bwnght@highlandbeach.us) Status: Signed Transaction ID: CBJCHBCAABAAgvXQSAAki4oRhww2FnNv2Tp6jrM-pwE 2021-01-12 "10.29.2020 Code Enforcement Board Mtg Minutes" History Document created by Beverly Wright (bwright@highlandbeach.us) 2021-01-12 - 9:17:42 PM GMT- IP address: 12.18.232.162 1-1 Document emailed to Thomas B. Bumich (timbumich@att.net) for signature 2021-01-12 - 9:19:48 PM GMT Email viewed by Thomas B. Bumich (timbumich@att.net) 2021-01-12- 9:22:04 PM GMT- IP address: 204.232.120.115 o Document e -signed by Thomas B. Bumich (timburnich@att.net) Signature Date: 2021-01-12 - 9:22:58 PM GMT -Time Source: server- IP address: 204.232.120.115 Agreement completed. 2021-01-12 - 9:22:58 PM GMT Adobe Sign