##VIDEO ID:B## e e e e e e e e e e e e um all right so today is August 6 2024 um I officially call this meeting to order first order of business we have approval of minutes which I have here um I have reviewed these and unless there's any objection by anybody I will go ahead and sign these um these have been on I believe on the website with the agenda so um so I do approve of these minutes here and I'll go ahead and get these signs so we can get them entered all right and a magistrate yes so yes yes um we're going to be asking the town will be asking to reorder the new cases to be heard and move item number c up before B so it'd be a c b uh no problem yeah that's fine okay okay um all right so so to introduce myself my name is Monica Schmucker I am the appointed special magistrate to hear today's code enforcement proceedings um as provided for in Chapter 2 Article 5 of the fort Meers Beach Land Development code and Florida Florida Statutes chapter 162 um I am a licensed Florida attorney in good standing with the Florida bar and a Florida Supreme Court certified Circuit Court mediator and qualified arbitrator um I'm qualified to serve uh as the appointed special magistrate for the town of Fort Meers Beach at this time I would like to ask that everybody please turn off your cell phones if you have not done so already or put them on silence or do not disturb so that they don't go off during today's meetings this is a quasi judicial hearing which means it's similar to a case in court the rules are less formal my role here today is to hear um fairly and objectively the cases that are here before me today apply the facts and all the evidence before me to the law formal Rules of Evidence do not apply but fundamental due process will apply and will govern the proceedings the cases will be heard in the order of the agenda with the exception of that change c will be moved above B in the agenda on the new cases to be heard um the town has the burden of proof on all cases so the town will present first and then the alleged violator will have an opportunity to then speak present evidence um and refute any of the allegations all parties who are here to speak on a case will have the opportunity to do so at the conclusion of each case or within 15 days I will issue findings of fact conclusions of Law and um and an order um affording the proper relief that I find to be consistent with the powers under the code of uh and Florida law so at this time I would like to ask everybody who is going to provide testimony to please stand up and raise your right hand for the taking of the O do you want me to administr or I can do it you can do it it's up to you I'll I'll do it okay uh do you swear or affirm the testimony you about to provide is the truth the whole truth and nothing but the truth all right um all right thank you so the first order of business was to approve the minut but we went ahead and did that um so next will be the cases and the first one is case number 2022 0371 on the agenda um uh is it Town ready to proceed good afternoon your honor I'm officer bat code compliance officer for the town of Fort Myers St I have been sworn in and will be providing testimony and documentation for case number 2024 0249 the property owner is requesting a continuance for this case to September M 4th 2024 as we have made contact with property owner who is currently out of country through phone and email as our goal is ultimately compliance the town is agreement with the continuance as some additional time may allow us to achieve this goal please accept a copy of the emails and permit request information which is submitted was submitted on 71124 into the record to show effort is that and I'm sorry you state your name and you represent are you speaking on behalf of the Town yes ma'am thank you just for the record um and so you've been in communication you said and you're working on compliance okay and the town has no objection to a continuance no ma'am okay then um I will grant a continuance until September 4 I'm sorry uh September 4th okay September 4th right the next the next magistrate hearing your honor once again I'm officer bat a c compliance officer for the town of Fort Meers Beach I've been sworn in and will provide testimony and documentation for case number 2024 0249 no se see yeah 2024 0316 is the next okay we move yeah we moved C okay got the wrong number yeah I apologize no problem I was like wait a minute your honor this one is also going to be a request for continu but go ahead yes it is case number 2024 0316 the property owner is again requesting a continuance to September 4th 2024 as we have now been able to speak with the property owner by phone and email as our goal ultimately is compliance the town is in agreeance with the continuance to September 4th 2024 the town would also like to ask that you make note in the record that the case has been referred to the building department or building official for further safe structur determination uh please accept a copy of the emails into the record to show efforts have been made towards compliance [Music] the town you said is okay with okay there's no objection to that then continuance to the September hearing would be granted once again good afternoon your honor my name is Officer bat I'm a code compliance officer for the town of Fort Myers Beach and I have served in the capacity for approximately 6 months with 5 years prior experience elsewhere I've been sworn in and will provide testimony and documentation regarding this case our documentation is attached to the agenda as exhibits and we ask that all documents are accepted into evidence I've reviewed all the documents that be admitted we bring before you Fort Meers Beach code enforcement case number 20242 49 the subject property is located at 1661 esto Boulevard Fort Myers Beach Florida 33931 contains the documentation that the represent respondent KERO Shop's LLC the real property that is the subject of this code enforcement case included in exhibit a is a copy of the warranty deed a copy of Lee County tax collector receipt a copy of Lee County Property Appraisers and a copy of Michigan's Department of Licensing of Regulatory Affairs corporations online filing system showing Reg the subject property is not currently homesteaded the current use of the property is commercial it is zoned downtown and its future land use is pedestrian commercial moreover there's no evidence that the subject property is eligible for a homestead exemption in Lee County Tax Collector's records on March 18th 2024 I observed kiaro shops LLC in violation of the town of Fort Meers Beach code ordinances specifically the operation of shared parking lot in the public for a fee per vehicle space without first obtaining a required use permit at the subject property true accurate and unaltered copies of the pictures that I personally took on the date of first in site inspection have been marked as exhibit B and introduced into the record Daniel can you pull the mic just a little closer to you like lift it up higher a whole on there you go thank you we weren't picking right in these I in these photos in the top left you're going to find standard parking lot vehicles in it top right hand corner you're going to find a parking attendant sitting in a chair and to the far right a sign with a cost the bottom leftand corner you're going to see a sign that states parking $20 and another parking attendant exiting his red truck in the fourth photo in the bottom right hand corner you're going to see a generalized photo of all of the above a notice of violation was issued on March 21st 2024 and sent by certified mail to the address of record specifically to 3220 pine cone Court Milford Michigan 438 48381 posted on March 21st 2024 at the subject property and at Town Hall located 2731 Oak Street Fort Meers Beach Florida 33931 furthermore a copy of the notice of violation was sent via certified mail to the registered agent at 3220 pine cone Court Milford Michigan 48381 and sent to site location at 1661 Estero Boulevard Fort Meers Beach Florida 33931 true and accurate true accurate and unaltered copies of these documents included a cop including a copy of section 2249 have been accepted as Exhibit C Kos shops LLC was given 30 days to come into compliance with the town of Fort Meers Beach ordinance and notify the town on or before April 27th 2024 should she just hold it it just keeps moving I performed the reinspection of the sub property on July 8 2024 no notific and the establish on property this is a repeat violation due to case ce1 9-26 which started in 2019 for the same offense in which the previous magistrate found a violation and imposed a lean on the subject property on September 2nd 2020 in exhibit F includes the notice of violation for case ce9 - 0026 the order to lean for case ce1 19-26 the Affidavit of compliance for case number ce1 19- 0026 the release of lean for case number ce1 19-00 photo of the notice appear posted on July 10th 2024 to the vi Le property located 1661 Myers Beach Florida 33931 a photo of the notice of hearing post USPS [Music] we'll come back to that I'm sorry but we'll we'll add that p8,000 packet I request an order be issued violation and Madam magistrate can we take a bre can we have her sit over at one of those other microphones and give her testimony that one's not working corre okay yeah that's fine yeah sorry uh I would not the whole thing maybe just read your last thing you're reading so it's on the record for sure sorry testing testing perfect based on my soreness testimony and the evidence that has been presented to view including the exhibits within the agenda packet on behalf of the town of Fort Meers Beach I request that an order be issued finding a violation of section 34- 3203 including an order to correct the above listed violation and the imposition of an administrative fee of $250 to cover costs in bringing this matter before the special magistrate to establish a repeat offense and we're asking you impose a fine not to exceed $500 for each day each violation continues past the date of the for the compliance as this is a repeat violation and for such other and further relief as is consistent with the powers of the special magistrate as of today it has been 141 days since the repeat violation was identified and at $500 per day it totals 70,500 in fines R we are asking that you impose fines from the day the violation was identified until the subject property is in full compliance to come into compliance with Section 34-30 3203 the property owner will need to cease activity and or get the appropriate use permit to allow for the parking of vehicles for fee to this fact I have senior planner Jason SMY available for testimony and further explanation of how to obtain a use permit if required did you say you had him available mhm thank you uh do we have a respondent or somebody here representing the respondent thank you um we might have to here no I'll move over she can sit here however I'll move over here okay you s no sorry it's all right don't worry about it good afternoon your honor good afternoon um for the record am me too with redel and Andress I've been sworn um our offices represent the property owner and uh first and foremost I would like to thank officer bat and the city the town attorney for taking the time to discuss this issue and work through it with me on behalf of the property owner um before I get into um the current situation it's imperative that we talk about the history of this property a bit because I think it'll provide a bit of clarity regarding the current use so the site was originally approved for development commercial development in the 1970s in 1980 um the immediate predecessor to the current property owner purchased the property and began using it as a commercial parking lot in part when he uh when this entity sold the property to the current owner that use continued and it's important to note that at that time this area was part of unincorporated Lee County and the county had zoned this property bu1 and this is a very challenging to read um snippet from the zoning regulations in place at that time but bu1 permitted commercial parking lots by right so when this use was established it was permitted by right and it continued through today without any cessation making it a lawful non-conforming use as we'll get into in just a little bit the previous case um was was a bit challenging so the property owner did challenge the finding of violation and the fines that were imposed at that time however um that appeal was dismissed on procedural grounds um the court found that the time to appeal had run I believe it was because they had sought an appeal at the local government level but regardless um the merits of whether this was a non-conforming use or not were not actually litigated so the fines Contin to acrew and they were recorded as a lean against the property um I believe it was in 2022 when the town took action to foreclose on this lean and ultimately that case was dismissed um when the property owner paid that fine it was $188,400 so they paid the fine to avoid foreclosure on the property but the substantive issues were never contemplated in court and the reason that this matters is because um I'll move back here the ordinance um requiring special exception approval and actually establishing the downtown zoning District was adopted in 2004 so by the time that ordinance was adopted this use had been in place for 24 years again making it a lawful non-conforming use without cessation so fast forward to today the violation as officer bat already um testified was issued in March of this year and in response to that the property owner through our office has submitted an application for special exception to legitimize the use even though this is a lawful non-conforming use and I will note that the delay between March when the fine or when the lean was paid off and released and that case was satisfied um and when the special exception application was submitted was delayed not by the fault of the property owner um there was a transition I joined the firm um a couple of months ago to take over a role for someone else and it was just something that had slipped through the cracks in that time so it really was not the property owner's fault that the application was submitted almost four months later so I will note that so again um just basic Florida law um the ordinance that was adopted requiring the special exception in the downtown district was adopted in 2004 and it was not a retroactive um ordinance it wasn't intended to apply retroactively um as demonstrated by section 34- 621a which states that um certain lawful non-conforming uses may continue and as another note um because zoning regulations are in derogation of private property rights they are um to be interpreted in favor of the property owner um where possible so the town's non-conforming use standards state that non-conforming uses may be continued subject to the limitations which really is that you know they can't be expanded um there's limitations on replacing them I won't bore you to death I think we all are aware of what those limitations are but this is again we would submit a lawful non-conforming use so Florida law has long recognized that lawful non-conforming uses can generally be grandfathered in and continued um on property subject to those zoning classifications unless they're terminated or unless there's some other um valid retroactive purpose at play and again here um to the extent that this is a it's it's a lawful non-conforming use but to the extent that you know property ownership would have affected this Florida law is clear that um a transfer of title to property doesn't affect whether a use is uh an existing lawful non-conforming use is valid or not I will also note that Florida law does permit Equitable defenses in Code Enforcement cases um and the town's Lan Dev development code does as well so to the extent that um you know you find that for whatever reason this is not a lawful non-conforming use we would assert that the property owner has good faith in good faith relied on the um the zoning conditions and the use as an existing lawful non-conforming use based on that bu1 zoning that was established prior to 1980 and prior to the establishment of the use on the property pursuant to the Lee County um first zoning resolution Z1 and um as a result the property owner has relied on the income from the shared parking that paid parking commercial parking lot whatever you know terms we want to call it they've relied on that um as income to help maintain the cost of the property pay property taxes rehabilitate the structure um you know keep it on the tax rules so Florida law does hold that a favorable zoning ordinance is an act of government for purposes of Equitable stole and a substantial change in position does factor in the entire plan of development so the fact that this was developed with not just the retail Shopping Center in mind but also with the paid parking um does establish a substantial change in the position for um purposes of Equitable a stole we would ALS Al argue that to the extent this is a violation um latches would bar finding the property owner at this point because the property owner has been conducting this um use on the property for over 20 years and if you include the predecessor approximately 44 years and at some point whenever this was made um whenever this became a violation the property owner was unaware of it and there was unreasonable delay and that 15 years before this was first enforced this was not first enforced until 2019 um and and they really did not have a way of knowing that for that 15 years and now they are certainly um they would certainly suffer injury Upon A finding of not just a violation and the imposition of fines but a finding of a repeat violation and the imposition of the max $500 per day fines I will also note that um in 2022 the Florida legislature adopted section 75.0 75 stating that the owner or operator of private property used for motor vehicle parking May establish rules and rates that govern private persons parking Motor Vehicles on such private property and that a a local government may not enact an ordinance or regulation restricting or prohibiting the right of a property owner to do that it's unclear I will acknowledge whether this um applies to this case or not but I would submit that it does given the totality of the facts at play here um again this use has been established for over 40 years they've been using it as such um and really there's nothing in the code that would prohibit the continuation of the use absent termination of the lawful non-conforming use for I believe a period of N9 months um so with that um in an effort to demonstrate good faith we're simply seeking more time before fines are actually imposed and this would allow for the review and hopefully the approval of the special exception application that we submitted on July 11th um in that same vein we would be willing to return and provide periodic status updates to demonstrate our good faith efforts to obtain the special exception to bring this up to current site design standards and other things that will be required um in conjunction with the approval of the um special exception and with that I am available for questions if you have any um I I do but I wanted to give you the opportunity to respond happy to do so um Nancy STD I'm with the V law firm uh we represent the town of uh Fort Meers Beach um first of all this is the first time that we have been made the town has been made aware um that the property owner is asserting um some type of right as a legal non-conforming use um clearly there has been evidence placed in the record alluded to by uh the property owners Council uh that there is a prior case for the actual the same issue is brought before the special magistrate today and again in that case there was never ever any type of um uh allegation that this was a legal nonconforming use we think that it's inappropriate at this time to bring that up um also they have applied for a special exception and um we do have our uh Planning and Zoning staff member here who is an expert on the fort Meers speech or has been accepted as an expert on the fort Meers Beach Land Development code um the code the current code requires a special exception to be approved in order for a shared parking to um to be allowed otherwise it is an illegal use and under Section 34- 3203 as an illegal use it is a code violation um we have not had the opportunity to cross check any of the uh legal citations that have been provided to you um again this is the first time that we have heard um an allegation from the property owner that this is some type of legal non-conforming use um so I would at a minimum request the opportunity to have time to look at the legal citations that have been provided and to provide a brief to you on um on the issues that the legal issues that have been ra raised okay um all right I I do have uh a few questions is is your position that the town of Fort Meers Beach cannot enact an ordinance requiring a permit is is that what you explained because you I believe that you know you put up a statute there and you said that you couldn't restrict the right to to use the property as a parking lot so is my understanding correct essentially what you're saying is that it would be a violation of law to require a permit to operate a parking lot I don't I don't think it would extend as far as not requiring a permit um it's more putting that um I will note that there's no case law on this and I have seen varying interpretations of whether this extends only to the ability of a private parking um own par private parking lot owner operator to establish their own rates and rules or if it extends to preempting town authority to regulate this use um in the interest of collaboration with the town we're already going through with the special exception application we don't intend to resend that we intend to go through with it so it's not that we're sitting here today asking you to invalidate the shared parking ordinance requiring a special exception in certain zoning districts or PD development in others we're simply asking you to consider that this is a lawful non-conforming use that has been continued um and I'll make a quick note that um when this case first arose there was a completely different um town government here different folks um different town attorney different planning staff different code enforcement staff um but the property owners attorney at that time Mr Steve Hartzel did assert that this was a lawful non-conforming use and at that time the town attorney disagreed um it is still my opinion that this is a lawful non-conforming use given that it was established in 1980 when this was permitted by right pursuant to unincorporated Le County zon zoning and has continued without cessation um and those uh both the affidavits and the zoning regulation that I put in my PowerPoint were included as part of um the original presentation to the town from Mr Steve Hartzell and they were included as the appendix to the property owners appeal that he that they filed in 2020 um I would be happy to submit that as part of the record after this hearing if that would be um amable to everybody but I believe the town should have records of that also go back to that well I don't right so the evidence in this case is the evidence in this case yes um and and are you saying that there's some undue burden to apply for special exception or permission to be able to operate I mean is is that what you're saying that there's some undue burden being placed on them for such an application technically um I would argue that a lawful non-conforming use can continue without a special exception if it was lawful when it was established as it was in this case however in the interest of cooperation with the town and to really just put this issue to rest once and for all we have applied for the special exception and we are seeking that and we are going through the process sure and and I get that um but just you know as a reminder this is not the 2019 violation and there's no evidence before me that of anything that happened between 1980 and 2019 or whenever it is that the that the original case was however um I mean as as far as the latch's argument that wasn't brought up in in 2019 this isn't 2019 that case is done right so this is a new one and it is a a repeat violation and I do appreciate that there has been uh an application um I will say this as a repeat offense right um or a repeat violation it would begin on the date of the inspection okay the the fines would begin to ACR I would be willing to give the parties the opportunity to provide legal briefs on this matter because I understand and I recognize that it is not necessarily that simple I would like to um further look into the legal authorities that you have cited M I did not memorize them but I would like to give the parties an opportunity to brief it um so all right I will not issue a ruling on this hearing what I will do is give the parties I don't know do do you have a request as to an amount of time that you may need to research and brief the legal issues that were were brought up today because I would like to rehear it at the next hearing but I I will I mean I I will say as I see things today if if I were to find that it is a repeat violation up until the point right up until like from the day that it started until the day that it ceases or or it becomes legal those fines will acrew so they will continue to ACR okay um And to clarify um these will just be briefs on the law as applied to the facts in front of you today yeah and if and if there is and and I don't know you you mentioned there was something before or that the town has records of if it's relevant to what you're saying in application to the law I'd be happy to take a look at it we need to make sure everybody I'll coordinate with the town attorney on your honor um I other than today other than seeing some legal citations brought forth on a PowerPoint testimony of counsel we don't have any of this information and I don't think it's appropriate for us to submit a brief to you to actually do their work for them if that's their argument I I understand I don't believe that you should thank you and so I think that per perhaps the correct procedure would be to have them do a and you would have time to resp absolutely that is yes thank you and and and I mean we would not necessarily be opposed to a continuance if that is or not a continuance but a period of time for compliance compliance can occur right now I agree and I wasn't done thank you um and you know they they are going to need some time to get that special exception to make them a legal use I right yes I age those are my two cents and that's and that's where I was going so it stands right now right if he's operating a parking lot without the special exception regardless of I mean if he's out there today I don't know but it like I said it will continue to acrw and it will be $500 from the March date that was provided every day um and unless there is some sort of I find that defense compelling um you know I I don't the issue is I if there is a compelling defense I don't want to issue I don't your client needs to figure out what what he's going to do okay as of today right if he's continuing to operate a parking lot and it isn't found to be legal it will continue to acre however um I'll give you the opportunity to brief it and I will want to hear it again in September um could I ask you a question you said that he submitted the application for permit on July 10th July 11th yes okay did I ask you what that process entails I will defer to Jason SMY but I did see a signed document um in the packet in exhibit f um where I believe the client signed it or it was dated back in April and it would be my position that if the citation was uh the notice of violation was granted in March and April they knew that they needed to go through that process um the fact that it perhaps has been delayed for I'm not I don't know what reason to July again gives him that period of time from April to July to continue to operate in violation of the town's code I agree and that that um is really not um it's it's not where we are no I I understand so so here here's my question I want to know what the application process is or what it is or the timeline so I would and in response yes okay I will say that the fact that an application has been submitted does not cease the fines from acre um yes so if I may your honor um I think he has been sworn in if we could um hear testimony from Jason M um just as a point of introduction he is one of our planners with the town of Fort Meers Beach and he can give you the nuts and bolts of the special exception process good afternoon your honor my name is Jason SMY I'm the senior planer here with town I've been in this position roughly two and a half years prior to that I was five years with Marco Island uh your question is one of process uh the application for a special exception would be accepted by the planning and zoning department at that point we would go through a review as a rule of thumb I would state that a good review should take somewhere about 60 to 90 days before we schedule for initial uh reviews before LPA followed by a Town Council reading which would give a a proper determination of positive or negative on the request um that special exception process is laid out in the LDC see uh there are some some keys uh key items that the Town Council is required to look at for determination of whether or not they will approve it uh but otherwise the process itself is fairly straightforward application review and then readings so you said 60 to 90 days that is a good rule of thumb for application to uh readings all right okay thank you thank you okay um based on what I'm hearing today I I I will give you the opportunity to Bri brief the issue we could revisit this in September um once you've briefed the issu I can give you what's today um the 6th the sixth so I'll give you 10 days perfect thank you I'll allow the town 10 days to respond does that work um then what I will do um I would like to bring this hearing again we can continue this hearing to conclude next month and um at that time I'll be able to issue a a ruling or I'll take whatever is provided to me under advisement um and again I will tell you that the fact that he's applied is not going to stop those fees from approving so that's what I can tell you okay thank you your honor okay anything else go ahead well in the event that he should continue to operate then uh from this period of time from today's hearing to uh as a new violation do what you need to do okay thank you okay thank you okay all right thank you um is that that's it for this one so I think we have one more item um administrat okay so this is a public notice for order of compliance that was issued I signed the order of compliance um previously and it was related to Case C 20- 0239 uh 215 Flamingo Street um and there's really I mean I don't know if anybody has any questions as to this but no okay it's just a follow okay all right okay um well then I think yeah I think that's it that's already been entered so there's nothing what to do with that and with that then this meeting is adjourned thank you it sounds funny I like it too do you need this here