##VIDEO ID:SBBVKrcvUgk## e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e I we do we have to wait for I think we're good yeah I'll fill in for me okay perfect um okay good morning my name is Monica Schmucker I am the appointed special magistrate uh to hear today's code enforcement proceedings provided for in Chapter 2 Article 5 of the fort Meers Beach Land Development code and Florida Statutes statute chapter 162 um I'm a licensed Florida attorney and um I'm a certified mediator and and a qualified arbitrator and I'm qualified to serve as the appointed special magistrate for the town of Fort Meers Beach at this time I would like to ask if you haven't turned off or silenced your cell phones to please do so so they don't disrupt today's meetings um this is a quasi judicial hearing which means that the cases are similar to cases that you hear in court they are slightly less formal The Rules of Evidence will not apply but fundamental due process will apply and will govern these procceed meetings cases will be heard in the order that they appear in the agenda unless there's any changes but I don't think anyone has requested that today um my role today is to fairly and objectively review today's cases and apply the facts and evidence to the law again the fundamental I mean I'm sorry the uh Rules of Evidence are not going to apply it's not going to be particularly formal but anybody who is here to speak on a case will be heard um the town will have the ver proof so in all cases we'll have the town go first and then the alleged violator will be able to respond afterwards at the conclusion of each case or within 15 days thereafter I will issue an order with the findings of fact based on the evidence before me and based on the law and I'll issue an order affording the appropriate relief before we swear Anybody Everybody in I do want to uh have an approval of the minutes and I don't have a copy of those here so yeah I I would need to sign them yeah okay okay all right then I don't I mean I don't want to hold it up if you have to print it yeah I'll okay problem then we'll skip that and then we'll move on so anybody who here who is I'm sorry anybody who's here to speak on a case to testify you can please stand up raise your right hand thank you do you swear or affirm that the testimony you will provide today is the truth the whole truth and nothing but the truth thank you you may be seated right so I guess we'll yeah since we'll skip the minutes we'll go to the town if you can call your first case is it 144 Gulf Island Drive so Madam magistrate if I may N St for the record serving as Town attorney um the our officer our Cod enforcement officer had a emergency this morning and so in her place we will have our C manager my name is Thomas comp manag okay are are we hearing case number 2022 0371 first yes yes okay again my name is Thomas Yaz I'm comp manager for Beach I've been sworn in and will be providing testimony and documentation for the case of number 2022 0371 the violation for work without a permit at 144 Gulf Island Drive is pay into compliance with the LBC section 6-11 adoption amendments Florida building code 105.1 on August 7th 2024 via the ISS issuance of a permit number 221 63 to replace rotted wooden stairs because a length of time it took the property owner to come into compliance we would like to ask that you find you for finding the violation and to oppose an administrative fee of $250 to cover costs and bringing this matter before the Special M although the property has been in violation for 839 days from 422 2022 to 87 2024 we are not asking for fines due to comp be happily closed the case on full payment of PS okay if I may yes you may [Music] so made based your okay we I we don't have the respondent here I imagine your honor what we are asking for is basically recovery of our administrative cost of $250 we are asking that you do find that was a violation in the event there is a future violation we would like to be able to come back as a repeat and are not asking basically exua circumstances comp our okay thank you all right I have read I have read through the materials that were provided um and without any further comment from the respondent I I will find that they were in violation I will not not impose a fine as recommended by the town's attorney and I will impose the costs which are $250 administrative cost and I will issue a an order accordingly is there anything else you would like to add um not on this case okay thank you then that that'll be it for that case and we can call 202 4249 we wanted to do if it's um okay with you is to go ahead and move the Luder case up that one will be very quick sure okay so then I guess I'll have to officer all right give me one sec all right so then I'll call case number 2024 0316 which is 5740 Lauder street again good morning your honor I'm Thomas yazu C security manager for the town of Fort mys Beach I've been sworn in and as you recall in this case 202 4316 was continued from the last meeting on 86 2024 I'm asking for the order to close the case as we are transferring this matter to the building official for further consideration under the unsafe building your honor we also have um had some conversations with the attorney for um M McCarthy and she's indicating that their intent is to um basically demolish the building and it would be more appropriate to go ahead and um have that accomplished rather than imposing some type of fine against her um because of the condition of the building do we have a respondant good morning your honor for record Amy too with retzel I've been spor um we do represent Wendy McCarthy um when Miss McCarthy found about this case and I'm not saying that this was not properly noticed I'm not challenging the rules around notice but she did not find out about this until maybe six weeks ago so in that time she's been working diligently to obtain proposals from demolition companies this week she obtained the first one we're waiting on a second one I have been told that the work from start to finish from the time we engage to the time permitting demolition everything is complete it should take approximately four to just depending on how long it takes FPL to work on their side um so we are proposing to demolish the building as soon as possible she wants it down the town wants it down I want it down so that's where we are okay um what is the town requesting honor we just are asking for an order closing the case um because the case is being transferred to the building official for further Administration under the unsafe building program aside from that is that the only request that's the only reest okay um if there's nothing else on this okay I see no reason to deny an order closing the case and transfer to the appropriate um folks that'll be it on that one and I think we are now going to call KERO 202 4249 yes okay are you here for a respondent do you want to have a seat here sure find our mic thank you does that work yes hopefully he can does this work all right okay so we're calling 20243 I'm sorry 202 42491 1661 Estero Boulevard KERO shops LLC and this is a continuation from the uh previous hearing which did begin and we issued an order continuing with some partial findings of fact um um and because the we had the the town had proved the violation which wasn't really I mean we had the affirmative defenses I can allow respondent to begin um so that you can discuss your affirmative defenses and then I'll allow the town to respond to does that work yes okay cly okay is this okay yes can you can you please just state your name again for the I know you just stated it but can you please state it again for the record Amy too with bretzel I have been sworn we have a member of the public who desires to put some testimony on the record and since it's back based I thought it might be appropriate for him to speak before I presented the affirmative defenses would that be I have no objection okay sure thank you okay [Music] good morning special magistrate good morning my name is Tim Shadel and I was sworn and I just wanted to come to tell what I know to be factual about this case um I've lived on the island since 2009 and I've been coming here probably minimum 10 years prior to that and well prior to the ownership of KERO by its current owner that parking lot was used as a paid parking lot for years and everybody that's been on this island for that long of a period knows that to be factual I parked there many times I snuck in many times well before he bought the property and I also know that during the last meeting it was stated by the town's attorney current attorney that this was the first time that this issue the issue of the defense that was raised at the last special magistrate meeting was ever brought up and that's not faction that issue had been brought up well in advance it may have been the first time in this particular particular case but it was brought up at the very beginning of the first uh violations that were issued against the owner and I don't know if it was a legal parking lot at the time when I witnessed back in late 90s and up until ownership by the current owner but I know it just is factual that it was is used as a paid pocket and the defense that is currently being raised if if if it's under the law legal if I was the current owner I I can say that I'd be very upset myself after paying 18188 excuse me just I know him and I know him differently than many people do he's never treated me poorly he's never spoke to me with any disrespect and I just feel he's got a bat shake and I hope you take that into consideration thank you okay thanks there we go thank you your honor so in line with what Mr Shadel has just prevented I'm going to just recap a quick overview of the history of this property this was developed um back in 1976 the Lee County Property Appraiser's office designates that the building was constructed in 1976 the 1977 Aerials are the first ones that show that it was fully constructed and it was purchased in 1980 by kesto limited which then transferred ownership to a related entity called batty roermund Inc that entity when they purchased the property in 1980 began the the commercial parking use that exists through today in 2001 the current property owner moved to the island and became interested in the building and part of the reason he became interested in the building was because of the commercial parking use but it wasn't until 2017 that he purchased the property and at that time he continued the use that had existed at that point established in 1980 in 2019 the first case related to this issue was opened there were hearings in front of the LPA in the Town Council and and then this ultimately went to the special magistrate in January of 2020 I believe and at some point in 2020 that original special magistrate order was amended and it was 30 days after the date of that amended order that the current owner appealed under chapter 162 to Circuit Court and because they had appealed what was actually materially adopted in that first order ultimately that case was dismissed for lack of subject matter jurisdiction because it wasn't filed within 30 days of that order in 20122 the town filed suit against the property own owner to foreclose on the property and it was in March of this year that he ultimately paid the fines that had accured as lean to Halt foreclosure on the property to keep the property and the next day this new case was opened and you're familiar with the rest we were here in front of you last month I won't rehash that when this property was constructed and this use was established it was in the bu1 zoning District in Lee County at that time commercial parking was a use that was permitted by right and in between the last hearing and now I have been able to review that original zoning ordinance and the amendments there to that were adopted at the time that this was established in 1980 and there was no separate permit requirement there was no separate permit requirement to establish paid parking under that Land Development code so the use was established lawfully but the issue that we have had the issue that this property owner had with other Council back in 2019 and 2020 is the challenge of showing that this was a lawful non-conforming use because there was no specific approval for this but having reviewed the regulations clearly things are a lot more the regulations are a lot more stringent today than they were 45 years ago so we require a lot more review and permitting when we establish New Uses and new structures and things of that nature this was just simply something that didn't require a permit at that time today the property owners has been operating this lot under the belief that it is grandfathered in as part of section 34 - 3241 it was lawful at the time the use was established it has continued but to reiterate what we have said in the hearing last month we have a full application in for special exception application fees paid they have spent quite a bit of their time and resources getting in the special exception application just to settle this dispute with the town once and for all we are seeking the special exception it is our understanding there will likely be some variances associated with that we're prepared to address them and do whatever is required to get this approval to legitimize it and so ultimately we're here today to reiterate the request that we simply put any fines that may be imposed into abeyance to allow for the property owner to go through the special exception review process and hopefully obtain approval from the Town Council for this this in regard to the briefs that were filed um the town asserts that res judicata and collateral estop will apply in this particular instance I would argue that they don't simply because Florida courts are very hesitant to apply those principles and administrative settings and this has not been fully adjudicated this was not fully adjudicated on the merits re judicata does not apply where a case is dismissed for subject matter jurisdiction I'll pull the case quickly that is um Miami super cold versus Griffin Industries Inc which is a Florida second DCA case from 1975 could you say that one more time Miami super cold Co be Griffin with two eyes in Industries Inc and I can give you the citation for that it's 178 uh Southern reporter second edition at page 604 and that's a Florida second DCA case from 1965 and as this applies the jurisdiction the deadline to appeal under Section 16211 I believe of the Florida Statutes is 30 days and Florida courts have held that that dead line is jurisdictional so where they filed their appeal in an untimely fashion and it was dismissed for lack of jurisdiction um that would mean here that this was not fully adjudicated on the merits and therefore rest judicata should not apply in regard to Collateral estole it's my understanding that that pertains to um resolving disputes of fact here I don't believe that there's an actual dispute of fact it's a dispute of the law as applied to the facts so again collateral stopple should not apply for that reason it should not apply because this has not been fully adjudicated and the circumstances here today are different than the original case even if res judicata or collateral stoppable would have otherwise applied um this is now being brought in as a repeat violation the potential fines that can be imposed are double what could have been imposed in the last case and those circumstances are different enough that res judicata really would not apply here and to confirm as far as Equitable a stole the property owner relied in good faith on the fact that this commercial parking use was established had been established for decades when he purchased the property he purchased it and has testified previously that he had purchased it with the intention of continuing the shared parking use that shared parking use was part of the reason he ultimately did purchase the property so he has relied on some omission of the town here and he took a substantial change in the position he spent millions of dollars purchasing this property based in large part on this existing commercial parking use so collateral or Equitable a stoppable would apply and with that I will close my argument and I'm available to answer any questions you may have okay thank you um I'll I'll let the town respond and then then if I have questions I'll I'll address them at that time thank you okay I just want to make sure that this are you able to pick it up Jacob if not maybe we'll hold on got to bring it closer to your thank you um okay so the town's position has been and it has not changed that historically this use that kesto is engaging in on the property was illegal it was illegal back when the first code enforcement case came through and was adjudicated and it remains an illegal non-conforming use um if you did did something that was illegal back in the 80s and the 90s or the 2000s the fact that you continue to do an illegal act does not change that as far as the history of the property um kesto has um and and I I did additional research and the first time that this argument has come up in this case was at our last hearing however the argument was made in other forums um prior to this prior to that time um before I go into that I do want to comment briefly on um some of the comments that were made as far as the evidence that's in the record today so there is a copy of the 1975 plan that plan does not show that the proposed use that kisto is engaging in is a lawful use the affidavits that are in the record those are self-serving and they are not relevant they are dated and they have nothing to do with the violation that is currently um being adjudicated there is no U matter of right for a commercial uh lot on that property in the manner in which kisto is engaging there is copy of the zoning code from the county um we do not have an interpretation of that code we do not have a site plan or any indication from the county that that was a lawful use um and that it is available as a matter of of right you have argument from Council as far as the history um I really want to focus on that so there was a number of U notices of violations that were given for um entities that were engaging in similar activity and kesto was um given a notice of violation back in 2009 19 um for the IM illegal use of the commercial parking lot thereafter prior to the adjudication of that matter before the special magistrate um kesto recognizing that it needed to um determine whether or not its use was uh legal or not did appear before the local planning agency and in a public meeting with the opportunity to be heard presented argument that the same argument that you're hearing today your honor um that his use was authorized under the county um ordinances that were in effect at that time the LPA disagreed with him and their recommendation to the Town Council was that it was not a legal non-conforming use thereafter kesto had a second adjudication or review view by the Town Council itself and the result there was that it was not a legal non-conforming use um basically again the same arguments were made that there was some type of entitlement from the county uh with the lack of evidence thereafter the kesto went back to the special magistrate and made the exact same argument again which is the argument that they are making today there was an error apparently in the order that was issued by the special magistrate and that matter Was Heard again um in the fall and during that hearing um same argument was made and um denied basically by the special magistrate that is the order that was appealed um same argument was made to the court the court found that it had did not have subject matter jurisdiction because the arguments Rel related to the case that was decided in January of 2020 not the alleged error um and correction that was to be made in the fall and for that reason the court um dismissed that case there is case law that was cited in our reply that says if a court um can go ahead and hear the merits of a case that might otherwise be untimely filed if it is in the best interest and it is Equitable to do so this court chose not to do so the court had evidence before it that the LPA said he has no right the Town Council said that he has um no uh legal non-conforming right the special magistrate and so there's there was really no um persuasive evidence provided that would allow that the court would deviate from from providing equity in some manner um to this litigant um and therefore dismissed the case on procedural grounds being that there was um no subject matter jurisdiction so because of that um for the authorities that we cited in our reply brief we find that um we think that yes race judicata does apply um collateral estaple whether he purchased it in good faith or not is immaterial if it's an illegal use that doesn't change the illegality of it there's no evidence in the record that shows that this is a legal non-conforming use um as far as the comments made by um the member of the public um Mr Shadel he does affirm that these arguments were raised before and decided and not in favor of kisto um and U you know if M if kisto purchased the property um in Reliance on misrep misinformation that he was entitled to some type of use that is not the um the fault of the town the town is simply trying to enforce its um code and have everyone on a Level Playing Field um I have it's my understanding that the other individuals that were subject to some notice of violations for similar activity did go through the process and did receive special um exceptions and are lawfully um operating at this time um I do want to go ahead and update the representation that was made in my reply regarding the filing of the special exception um at the time I filed my reply there had been no special exception filed however um I did verify that yes he has filed and he has made the kesto has filed and has made the required payment and um staff will now engage in a review of the special exception and um move forward with with processing that um as it does with other individuals in the um in the case um in summary our our argument is really that what was illegal before is not now legal if if it was there's there's no documentation nothing that says it is now a legal non-conforming use if they've engaged in illegal activity in the past and continue to do so that is not justification for now allowing that illegal activity to um occur I also would like to go ahead and present um a little bit more of an update um we do have an affidavit that we would like to place into evidence the affidavit is um executed by um officer bat who again was unable to be here today um I believe we've shared a copy with kesto and I will um I'm going to defer to officer yazo because um officer bat is his employee and they have communication back and forth um and I believe you are knowledgeable of the information that is in the affidavit good morning your honor again Thomas yzo compliance security director for Fort Meers Beach uh at this time I'd like I'd like to PR present uh exhibit n which you just received that has some photos in it it also has the affidavit from officer bat when which I'm going to testify to some of the information it's a photo of a notice of hearing post on August 27th 2024 to the violation property located at 1661 Estero Boulevard Fort Meers Beach a photo of a notes hearing was posted on August 27th 2024 to to the town hall located at 2731 Oak Street for Myers Beach all certified receipts for the notice of hearing tracking of history for the USPS for the notice of hearing and photo of the condition of the property the time of reinspection on September 3rd 2024 prior to today's hearing all photos i p were were personally taken by Officer bat and I can testify to the conversation that we had about that they're true accurate and unaltered copies M ster your other mic is working now okay great um and so in closing your honor what the town is seeking is um a couple things uh recovery of the fine of or the administrative costs of $250 um a fine for is it 171 days that um KERO has continued to engage in illegal activity as a violation at $500 per day um this brings the total to 85,500 um and also the finding uh that this is a repeat violation which you may have already um included in your prior order and if there is any other um remedy that that your honor feels would assist the town in stopping this illegal activity we do not want to come back back to you a month or two from now with another violation um so this does not become the cost of doing business um the 85,500 is a lot of money however I don't know how much revenue is being generated um by this um illegal use of the property um the town thought perhaps uh mandating some type of signage um that would prohibit um that this um property cannot be used for paid parking until the uh special exception is is given um I think that that may evidence we we are still waiting for a call for to say that he's in compliance we've never uh received any type of notice that he is in compliance of the property um so and we continue to to see that he continues to operate as an illegal parking lot um it is um enlightening and helpful and we're happy to hear that he is proceeding with the special exception process but that process does take time and I believe it was 60 days was the testimony from um Jason SMY our planner at the last meeting so that's two more months um that we do not want to have illegal activity occurring on that property so um again our our bottom line is the 250 administ costs a 171 days fine in the amount of $85,500 a finding that this is a repeat violation and any other remedy that um M your honor you believe you are lawfully um able to impose on this [Music] property um and I'll admit this into I'm sorry I'll admit this into evidence I was just yes okay Mr you would you like to respond and then I will have just a few questions yeah just a couple of points um the case that was cited in the town's brief regarding a Court's ability to um take on a case that was untimely filed was in relation to a petition for rid of sersi arari um that is a more discretionary process um the courts tend to have more disc discretion to hear a petition for it of ciari then they would hearing a plenary statutory appeal like one that would be submitted under 162 in city of Palm Bay versus Palm Bay greens I want to say LLC pulling it right now which is a Florida fth DCA case from 2007 it was clearly ruled that the failure to file a notice within the 30-day period constitutes IR remediable jurisdictional defect so this is a little bit different than the case that was cited in the town's brief and I just wanted to clarify that next the town's position that Equitable stopple does not change the fact that the use is illegal is I while I completely understand where they're coming from this use this is a very unusual case very unusual it's very uncommon that something comes across my desk where a use was established at a time where a specific permit for that use was not required and we're now finding ourselves in a code enforcement proceeding but that's what the situation is with this case and with all due respect to everybody that has been involved in the previous processes it is my legal opinion that this is a lawful non-conforming use it was lawful when it was established no permit was required to have this commercial parking use to rent out the Extra Spaces at the shopping center to some extent the definition of shopping center and Commercial and the definitions as I've stated in my brief those would Encompass this this type of use as an accessory use when the town updated their Land Development code I believe in 2004 and adopted the downtown zoning district and adopted the shared parking use that was when it was specifically stated that the shared parking use is a principal use of the property but prior to that it was certainly well within the definition of an accessory use it was customarily incidental and subordinate to the existing commercial Shopping Center I've gone through records for this property I've seen a variety of different uses that were in there everything from restaurants and bars to optometrist and dentists so depending on the type of tenants that you have the number of units you have filled your peak hours are going to fluctuate so the number of spaces that get used at any given time fluctuated from 1980 to now and this use was truly part and parcel of that use when it was established under kesto limited partnership which was the predecessor to batty RoR Mund in I'm probably butchering that name but I believe there's documentary evidence in there with the entity names and I completely understand that the town wants everybody on an even playing field completely understand that is why we have submitted the special exception application even though we know that this is a non-conforming use we want to work with the town we want to fully bring this into compliance in a manner that satisfies everyone and not just the property owner that's why we've applied for the special exception um and going back to that I had submitted the special exception application on July 11th as I had stated in the previous hearing we were missing a survey so when we received that we submitted that the application was deemed sufficient at that point and the application fee has been paid so the full application is with staff right now again just going back to the town's argument that what was illegal before is not suddenly now legal in general I completely agree with that statement but here this was legal at the time it was established technically with non-conforming uses the case law says that local governments should cautiously interfere with non-conforming uses that are grandfathered in under new codes typically that would mean that new approvals like a special exception approval would not be required but again we are not asking for relief from obtaining a special exception we are just asking for a reasonable amount of time to put fines into OB bance before they start a career bre to allow us to go through the special exception process we think that's a really nice middleof the road agreement that would satisfy the town and satisfy the property owner and ultimately get us to a place where everyone is happy with that if you have any questions I'm available to answer them uh I do and and I guess my my concerns in this case are slightly different than If This Were to be the first time it were to come up um um and in particular I guess my question and I'm going to have to kind of explain first and then there'll be a question at the end but if this had if if this was an argument and a position that had been taken by your client previously and it had been found to be in violation it was not legal not conform or it had not been established as previously legal and a non-conforming use currently at least in 20 9 and that was adjudicated administratively but it was um at least I mean administratively it was argued it was the evidence was put before multiple it was the LPA and and the special magistrate so by by multiple people it had been found to not be legal these fines were imposed and they accured he paid all of that was done why then I guess my concern is after it had been found multiple times to be in violation and and the cases were closed why then he would think that he could continue to operate the concern that that raises for me is you miss an appeal you lose an appeal and you get another bite at the Apple by starting over do you understand that concern so my question I guess is at that point after the 2019 case closed out he no longer believed that it was a non-conforming use or at least he'd been found not to be so I mean do you have any response as to why he would continue at that point after it had been found multiple times by multiple entities that it wasn't IL legal conforming use I I'm sorry non-conforming use I so for context here I took over this case on July 1 of this year I I understand there's a lot no no I understand so I'm just giving you I was not involved in 2019 and 2020 when he was working with one gentleman The Firm that filed the appeal was a different firm than that which represented him in front of the local uh the LPA and Town Council and the special magistrate I'm not exactly sure what has happened every step of the way what I do know is that when he paid the fine he at the same time engaged our firm to help him speak uh apply for and obtain a special exception it was not fed until much later so the property owner has not taken a stance that he just wants to battle the town about this over and over in perpetuity he does believe it's a non-conforming use I believe it's a lawful non-conforming use but in the interest of everyone's time and resources we have decided that it is now time it that the special exception is the best way to just get this done and to allow us to all move on from this debacle right as and aside from that and I appreciate that the application has been submitted is it your client's position that you know if he disagrees with all of the findings the you know these multiple findings by again multiple people it goes to appeal and for whatever reason I understand that it was you know dismissed for L lack of subject matter jurisdiction and it wasn't you know heard on the merits in in the circuit court and and I get that but it was still I mean once he misses that deadline and that's over with it could it could just perpetually go on forever because he disagrees with the findings and at that point once it becomes a repeat violation isn't it then a repeat violation having been found that it was a violation in the first place having been closed out that was the f finding this new case is for a repeat violation of a previous finding so that previous finding whether he agrees with it or not was that finding those were the conclusions so this case is a repeat of that finding is it not otherwise you you know somebody who disagrees can just keep doing it and keep bringing up the same argument that was already closed may I clarify your question sure are you asking whether he's using this as an opportunity to try to relitigate this in circuit court at this time no but that's a good question I mean essentially what I'm saying is that it could be it could be used to continue to appeal the same issue over and over right like he was he was qu he was unable to bring it to appeal right for whatever reason procedurally or not not but he was unable so by I mean I feel that your position then would be encouraging people to continue to do illegal things so that they can get another bite at the Apple so it had the finding had been there that was closed it was found to be a violation what is brought here before me today is a repeat violation of something that already been adjudicated right so so I guess my question is why why at that point when he find was found that way and I know he he did he filed his application so he wants to make it right and I get that but why once it was found to be a violation would you say that this isn't a repeat violation I I don't really understand because you're you're telling me why in 2019 it was okay that's done I'm not hearing the 2019 case I'm hearing the case for a repeat violation of something that had already been found to be a violation right so my concern is if I say okay well then let's start over then it's encouraging people don't like the answer to just keep doing it so that they can keep litigating the same issue after it's been closed and I see where you're coming from I think in the again this is a very very peculiar set effect effects and legal framework that we're working within here to be this is not something that I see every single day I don't believe that the intention is to sit here and relitigate over and over that was why our firm was engaged to get the special exception I don't believe that this would set a precedent because I do not believe that many code cases that come through here have a similar set of facts to this one I've done a variety of code cases um in other jurisdictions and I've I've never had something like this before so here I think that some of the issues that make this really unique are the fact that this appeal was filed untimely I I cannot tell you why I was not party to that particular proceeding I was not involved I don't really have the background on it but it seems to me that the property owner did disagree with the ultimate findings at the local government level and wanted to establish that no this was indeed a lawful non-conforming use and so he appealed the appealed was dismissed because it was filed after the jurisdictional deadline the the court had no jurisdiction to hear it if this case for example were then to proceed in accordance with the previous cases there's a possibility that he might then want to go appeal to Circuit Court and at that time if he were to do it timely I think that is when this would really be decided on the merits and if he didn't like it he could go to the second DCA or the sixth DCA and you know whomever would want to hear this appeal and he could take it all the way up and exhaust it but that hasn't happened here I don't I don't believe that's what they want to do I don't think anybody comes into a case wanting to get into litigation which is why we're here today simply asking for a compromise we're asking just for the fines to be put into abeyance to allow us to go through the special exception process because again this use in our opinion was lawful when it was established and therefore it should be grandfathered in without the special exception but it's just not worth it to fight with the town about this issue anymore and we're simply asking for a little give from the town as well as far as when those fines begin to acre I have a question question for I have a question for the town do you have a response to um I guess Miss TBO stated that you know initially this was a it was a legal use because there was no permit required for this use and you stated that it was never legal it was never legal to use this parking lot as such so do you have a response to her statement or position that if your honor if I were taking her her position I would have gone to the county and provided evidence from the county and again I don't really want to argue her case um but there's nothing in the record for you to adjudicate upon from the county that supports the argument that Council has made I mean Council doesn't interpret and apply county code right but she does AR I mean she can argue it it's part of the record is a copy of their zoning code there's nothing that shows that how that zoning code is applied to that particular property but your honor more importantly I want to point out too that um the issue of a legal or a non-conforming use the illegality of it was decided by the Town Council and the Town Council as the governing body of of the town has the authority to interpret its codes he had the opportunity to present his case which he did and there was a recommendation from the LPA to the Town Council Town Council could have agreed with the LPA or could have disagreed but they made a decision right that decision was not appealed he never appealed that to the court he could have but he didn't and if you look at the totality of the facts possibly his strategy was if he had if the Town Council had found that it was a legal non-conforming use he could have taken that to the special magistrate as evidence that what he was doing was correct because that case had been pending but he failed there he did not appeal it yet he went back to the special magistrate and tried to argue the same thing so whether it went on appeal to you know the the Circuit Court from that decision that's a a done case I mean that's that's a decided uh fact a decided determination made by the special magistrate um okay my my qu my question and I yes I get that I understand my question to you though is do you have any any comment at all or any response at all to her statement that a permit was not initially required and that's what established the legal use which became a non-conforming use or do you just not have a response to that no um my response would be based on um evidence from the County and there's nothing in in lack of evidence okay from the county as to what his rights were under the county code other than a copy of the county code okay um and there was some discussion about after Hurricane Ian did this continue to operate as a as a parking lot for nine months after Hurricane Ian um I don't know I would deferred I know there wasn't a violation um issued until uh March of this of this past year and that's the current violation that's before you um again if he was engaging in ille illegal activity during that period of time um there was no pending code violation I know I was just I was just wondering fact just I have a question just about the facts themselves because we have a very long period of time she's alleging applies here so I know that after Hurrican a lot of things changed so I don't know if either of you have any evidence one way or another whether that parking lot ceased operating for nine months or more our our violation is from um March of this year through today I understand that's what we're focused on right right I understand that okay it's my understanding that the commercial parking lot use continue during that time in large part because during the storm after the storm and to the current current time most of those units are vacant so they've been working to remodel the actual structure itself and ex excuse me so it is my understanding that the commercial parking use has continued this entire time okay in large part because they are aware of the rule where if you discontinue a non-conforming use for 9 months or more you've abandoned it under the town code right I understand okay okay um did you have something you looked like you were about to say something we just wanted to reiterate what the what the town's request is um initially just we want him to come into compliance um if he decides to stop engaging in this illegal activity please notify as he's been informed and advised to do um or get a special exception that will put him on the playing field with others um the $250 um administrative fee uh really covers all the cost of the time and resources of the town is devoted to this again um the fine however is is being uh requested to hopefully encourage him to stop with this illegal activity and then uh the fin that it is a a repeat violation in the event he does it again and again requesting your honor if you have any other thoughts of how to deter this illegal activity in the future we're receptive to that okay um okay so I spent quite a bit of time there were a lot of material submitted by both parties do you have by the way this exhibit and did you get them I wasn't looking up okay yes the town gave it to me before the hearing thank you uhhuh okay so I spent quite a bit of time looking through all of the materials uh I do agree with you that it is very unique situation and a very difficult situation I have 15 days to issue an order I would much rather I wanted to hear what was presented today uh on top of having reviewed what I reviewed and it was uh over a 100 pages I guess 200 pag maybe that I was looking at plus I pulled every single case that was cited I pulled the ordinance that or well I tried to pull the resolution I never found Z1 but I did find the ordinances that were cited I can send you Z1 I I would like to see what you were referring to specifically if you can send it to the town maybe Amy okay I have 15 days I am relative prepared to issue an order but I don't want to on a you know something that involves so much to just vocalize it now because I do want to sit down there I don't know if the cases that you cited were some of the ones I pulled already or not but I just would like to look at everything and I want to get it right so I will take this under advisement I will review if you can send me Z1 um or z-1 if you can send it to Amy as soon as you get a chance that was not included the the or I don't remember it was 87 maybe Dash I don't I don't remember off the top of my head but the ordinance was included in your materials um so I was able to read all of that I want to go over everything take into consideration the or oral argument and I will issue an order within the next 15 days your honor are you requesting a certified copy of that Z1 whatever it is I mean I just would like to look at it I okay I just want to know what if you know you were siding to it like I the way I pull every case when somebody CES to it to make sure it's taken you know proper context I was unable to do it with that because I could not find it so I just want it if if I feel the need that I would need a certified copy to verify anything in particular I can do whatever needs to be done but as of right now I just want to look at it and that's it um so I'll issue an order in 15 days I don't have an answer for you today but it will be soon okay thank you your honor thank you your honor thank you no okay um oh one more well you're you're good to go uh one more we did move the minutes to the end so I don't know if those were printed thank you okay I believe these were the ones that I mean I I reviewed these minutes before so I'm I'll go ahead and these are the do anybody have any comments as to them okay then I will go ahead and approve these minutes and sign them and I believe that that is everything that we have on today's agenda okay well then we can adjourn thank you oh I don't I don't