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Home My WebLink Aboutcocc_special_magistrate_hearing_agenda_pkt_20230926 CITY OF CAPE CANAVERAL SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING CityHallCouncilChambers 100 Polk Avenue, Cape Canaveral, Florida 32920 HEARING DOCKET September26, 2023, 6:00 PM Pursuant to Chapter 162, Florida Statutes, Chapter 2, Division 2 and/or Chapter 82, Article IX (IPMC) of the City Code, and other applicable provisions of law, the Special Magistrate of the City of Cape Canaveral will conduct quasi-judicial evidentiary proceedings regarding the code enforcement cases listed below. CALL TO ORDER ADMINISTRATIVE BUSINESS: 1. Establish Next HearingDate: October 24, 2023 2. Approval of Hearing Minutes: August 22, 2023 NEW CODE ENFORCEMENT CASES: 1. Case No. 22-308 - Violations of Section 70-69 Receipt required; payment of tax prerequisite to issuance, City of Cape Canaveral Code of Ordinances; 504.1 General, International Property Maintenance Code; 504.3 Plumbing system hazards, International Property Maintenance Code; Section 704 Drainage Piping Installation Florida Building Code; Section 704.2 No reduction in size in the direction of flow, Florida Building Code; (404 Tyler Ave. Unit 6) Tchistiakova, Ludmilla, Property Owner. COMPLIANCE {MASSEY HEARING) CODE ENFORCEMENT CASES: 1. Case No. 22-054 - Violations of Section 110-292 Principal uses and structures, City of Cape Canaveral Code of Ordinances; Section 110-491 Number of spaces required, City of Cape Canaveral Code of Ordinances; Section 110-486 Vacation rentals, City of Cape Canaveral Code of Ordinances; (521 Jefferson Ave.) Richard W. Starke, Margaret M. Starke & Tyler B. Starke, Property Owners. APPEAL CASES - INTERNATIONAL PROPERTY MAINTENANCE CODE {IPMC): None OTHER SPECIAL MAGISTRATE RELATED BUSINESS: None CityofCapeCanaveral Special Magistrate Hearing Docket September 26, 2023 Page 2 ADJOURNMENT Notice: The Special Magistrate shall conduct a quasi-judicial evidentiary proceeding related to the aforementioned code enforcement cases. However, requests for satisfaction, release and reduction of lienarehandled pursuant to Section 2-260oftheCityCodewhere underthespecial magistrate shall review and consider the application for reduction or release of lien in an advisory capacity and shall render a written recommendation to the city council based on findings of fact and law to either approve, approve with conditions, or deny the application for reduction or release of lien. The proceedings are open to the public, but the Special Magistrate reserves the right not to hear from non-interested parties because of the evidentiary nature of the proceeding. Orderly conduct and proper decorum will be maintained during the proceedings. The Special Magistrate may postpone, recess, reschedule or cancel any or all of the cases or applications for lien reduction or release listed on this docket. Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the Special Magistrate with respect to any matter considered at this meeting, with the exception of applications for lien reduction or release which are non-final recommendations to the City Council, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act: all interested parties may attend this Public Meeting. The facility is accessible to the physically handicapped. Persons with disabilities needing assistance to participate in the proceedings should contact the Building Department (321) 868-1220 48 hours in advance of the meeting. City of Cape Canaveral ComtnunityDeveloptnent RE:NOTICEOFHEARING CASE No. 22-308 THE CITY OF CAPE CANAVERAL, A Florida Municipal Corporation,DATE: 9/5/2023 Complainant, V. TCHISTIAKOVA, LUDMILLA 311 TAYLOR AVE APT G19 CAPE CANAVERAL, FL 32920 Location of the Violation: 404 Tyler Ave unit 6 Cape Canaveral, FL. 32920 A HEARING will be conducted before the City of Cape Canaveral Special Magistrate on September 26, 2023 at 6:00 p.m. or as soon thereafter as possible. The hearing will be held at the City of Cape Canaveral City Hall Council Chambers, 100 Polk Avenue, Cape Canaveral, FL 32920. The Special Magistrate will receive testimony and evidence at said hearing regarding the violation(s) occurring upon the property of the Respondent(s) as set forth in the Notice of Violation attached hereto as EXHIBIT "A" and shall make a determination as to whether such violation(s) is/are corrected pursuant to Section 162.07, Florida Statutes, and Chapter 2, Article VI, of the City of Cape Canaveral Code of Ordinances. You are entitled to testify and present evidence and witnesses in defense at the hearing. In addition, you have a right to be represented by legal counsel at the hearing. The Special Magistrate may enter an order requiring the Respondent(s) to correct the violation(s) and penalties may be assessed up to $250 per day for each first violation or up to $500 per day for each repeat violation described in this notice until the violations(s) has/have been corrected, and, in addition, may include all costs of repairs. However, if the Special Magistrate finds the violation to be irreparable or irreversible in nature, the Special Magistrate may impose a fine not to exceed $5,000 per violation. Please be advised that if a fine is imposed and/or repair costs assessed by the Special Magistrate, a certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the Respondent which can be satisfied by foreclosure and sale of said property and other personal or real property. UPON ISSUANCE OF A FINAL DECISION AND ORDER BY THE SPECIAL MAGISTRATE, AN AGGRIEVED PARTY, INCLUDING THE CITY OF CAPE CANAVERAL, MAY APPEAL THE FINAL ORDER OF THE SPECIAL MAGISTRATE TO THE CIRCUIT COURT AS PROVIDED BY FLORIDA LAW. FURTHER, IF AN APPEAL IS FILED, THE AGGRIEVED PARTY MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE SPECIAL MAGISTRATE'S HEARING IS MADE, WHICH INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. DATEDthis5thdayofSeptember,2023. Kevin Costa, Code Enforcement Officer 321-868-1220 Ext. 136 Certified Mail: 7022 3330 0000 1287 5276 USPS.com® - USPSTracking®Results 9/8/23,1:12PM FAQs) USPSTracking® Remove X TrackingNumber: 70223330000012875276 CopyAdd to InformedDelivery{https://informeddelivery.usps.com/) LatestUpdate YouritemdepartedourUSPSfacilityinORLANDOFLDISTRIBUTION CENTER onSeptember7,2023at 9:13 pm. The item is currently in transit to the destination. .,, (D GetMoreOutofUSPSTracking: (D C. C" CERTIFIEDMAIL®RECEIPT Q) JJ USPSTrackingPlus® DomesticMailOnly 0 I"" ;:,.- ru LO • Delivered 0FF I"" Certified MailFee ru • r-'I OutforDelivery ExtraServices&Fees(checkbox,addtao D Return ReceiptQ,ardcopy) $ _,__ CJ $I..:. D CertifiedMailRestrictedDelivery • PreparingforDelivery AdultSignatureRequired CJ D AdultSignatureRestrictedDelivery $ \\ CJ ,,, Postage L/ n, Moving Through Network rr, -FLSZ9 Departed USPSRegionalFacility ru • ru ORLANDOFLDISTRIBUTIONCENTER CJ r-- September7,2023,9:13pm ArrivedatUSPSRegionalFacility • ORLANDOFLDISTRIBUTIONCENTER September6,2023,9:21pm I SeeAllTrackingHistory • WhatDoUSPSTrackingStatuses Mean? {https://faq.usps.com/s/article/Where-is-my-package) V Text& EmailUpdates https://tools.usps.com/go/TrackConfirmAction?qtc_tlabels1=702233300000128752761/2 CityofCape Canaveral CommunityDevelopment RE:AFFIDAVITOFPOSTING I,Kevin Costa, Code Enforcement OfficerfortheCityofCapeCanaveral, hereby certify that Ihave posted the following Code Enforcement Notice: NoticeofHearingdated9/5/2023 at the following address: 404TylerAve unit 6 CapeCanaveral,FL32920 Onthis 6th day of September2023andthe requiredpostingat City Hall,100 Polk Avenue,Cape Canaveral, Florida, 32920. KevinCosta,CodeEnforcementOfficer State of Florida CountyofBrevard Onthis6thdayofSeptember2023,KevinCosta,personallyappeared, whoispersonally knownto me and did not take an oath. ..,,.-,,. /r}f NotaryPublic Florida Statute162.12(2),(b),(2)Proofofpostingshall bebyaffidavitoftheperson postingthe notice, which affidavit shall includea copyof the noticeposted and thedateand placesofits posting. THE SPAC 100 Polk Avenue• Post Office Box 326 • Cape Canaveral, FL 32920-0326 BETWEEN' Telephone (321) 868-1220 • Fax: (321) 868-1247 wwv..citvofcaoecanaveral.orn City of Cape Canaveral CommunityDevelopment REVISED NOTICE OF VIOLATION THE CITY OF CAPE CANAVERAL CASE NO. 22-308 A Florida Municipal Corporation, Date: 7/27/2023 Complainant, V. Owners of the property located at: 404 TYLER AVE UNIT 6 CAPE CANAVERAL FL 32920 Parcel ID: 24-37-23-CG-39-10.06 Respondent(s): TCHISTIAKOVA, LUDMILLA PURSUANT to Section 162.06, Florida Statutes, and Chapter 2 Article VI, of theCity of Cape Canaveral Code of Ordinances, the undersigned Code Enforcement Officer hereby gives notice of violation(s) of the City of Cape Canaveral Code of Ordinances, as more specifically described below. Respondent(s) is/are hereby notified that a corrective action(s) to cure the violation(s) described below is required to be performed within twenty (20) days. In the event that the violations(s) is/are not corrected within the time period set forth above or the violations(s) recur(s)even if the violations(s) is/are corrected at the time of hearing, Respondent(s) may be required to attend a hearing before the Special Magistrate for the City of Cape Canaveral, and a penalty as provided below may be imposed. The Special Magistrate may enter an order requiring the Respondent(s) to correct the violation(s) and penalties may be assessed up to $250 per day for each first violation or up to $500 per day for each repeat violation described in this notice until the violations(s) has/ have been corrected, and, in addition, may include all costs of repairs. However, if the Special Magistrate finds the violation to be irreparable or irreversible in nature, the Special Magistrate may impose a fine not to exceed $5,000 per violation. Please be advised that if a fine is imposed and/or repair costs assessed by the Special Magistrate, a certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator which can be satisfied by foreclosure and sale of said property and other personal or real property. IF THE VIOLATION(S} IS/ARE CORRECTED WITHIN THE TIME PERIOD REQUIRED, THE RESPONDENT(S) MUST IMMEDIATELY NOTIFY THE CODE ENFORCMENT OFFICER AND REQUEST AN INSPECTION TO DETERMINE COMPLIANCE. THE SP4CE 100PolkAvenue•Post Office Box 326• Cape Canaveral, FL32920-0326 BETWEEN" Telephone (321) 868-1220 • Fax: (321) 868-1247 www.citvofcaoecanaveral.om: Case No. 22-308 Page2 1.Property where violation(s) exit(s): 404 TYLER AVE UNIT 6 CAPECANAVERALFL32920 2. Name and address of owner(s) of property where violation(s) exist: TCHISTIAKOVA, LUDMILLA 311 TAYLOR AVE APT G19 CAPE CANAVERAL, FL 32920 A recent inspection of the subject property and other relevant information conducted by the City Code Enforcement Officer revealed evidence that the property is in violation of City Code provisions. A summary of the applicable City Code provisions and existing condition of the property is set forth below. Sec. 70-69. - Receipt required; payment of tax prerequisite to issuance. Each person who shall engage in, transact or manage or be the agent for any business or who shall perform or offer to perform services or sell goods, advertise goods for sale or perform services or solicit or advertise the performance of services for any of the businesses, professions or occupations mentioned in this article shall first procure a local business tax receipt from the city and shall, upon procuring the receipt and before the issuance of the receipt, pay the amount of local business tax required as provided in section 70-89. Sec. 82-31. - Florida Building Code adopted. The Florida Building Code, as may be amended from time to time, as published by the Florida Building Commission, shall be known as the City of Cape Canaveral Building Code and is hereby adopted by reference and incorporated herein as if fully set out. 504.1 - General. (I.P.M.C) Plumbing fixtures shall be properly installed and maintained in working order, and shall be kept free from obstructions, leaks and defects and be capable of performing the function for which such plumbing fixtures are designed. Plumbing fixtures shall be maintained in a safe, sanitary and functional condition. 504.3 - Plumbing system hazards. Where it is found that a plumbing system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, inadequate venting, cross connection, back siphonage, improper installation, deterioration, or damage or for similar reasons, the code official shall require the defects to be corrected to eliminate the hazard. THE SPACE 100 Polk Avenue • Post Office Box 326•Cape Canaveral, FL 32920-0326 BETWEEN" Telephone (321) 868-1220 • Fax: (321) 868-1247 www.citvofcaoecanaveral.om Case No. 22-308 Page3 SECTION 704 (F.L.B.C) DRAINAGE PIPING INSTALLATION 704.2 No reduction in size in the direction of the flow. The size of the drainage piping shall not be reduced in the direction of the flow. The following shall not be considered as a reduction in size in the direction of flow: 1. A 4-inch flange by 3-inch (102 mm by 76 mm) water closet flange. 2. A water closet bend fitting having a 4-inch (102 mm) inlet and a 3-inch (76 mm) outlet provided that the 4-inch leg of the fitting is upright and below, but not connected to, the water closet flange. 3. An offset closet flange. VIOLATION: Shower drain has been installed improperly and does not meet required code. Staffhasalsoobserved thatyourproperty isbeinglistedas a vacation rentaland a business tax receipt has not been issued. YOU ARE RE UIRED TO CORRECTTHE VIOLATION S DES RIBED ABOVE WITHIN TWENTY (20) DAYS OF RECEIPT OF THIS NOTICE. AS FOLLOWS: - A licensed contractor must contact the City of Cape Canaveral building department to apply for and obtain a permit to replace the shower drain. Once all work has been completed, a final approved inspection is required to bring the property into compliance with this Notice of Violation. - Apply and obtain a business tax receipt. Please be advised that if the owner of property that is subject to this Notice of Violation transfers ownership of such property between the time this Notice of Violation is served and the time of the hearing before the Special Magistrate, the owner of property is required by Section 162.06(5), Florida Statutes to disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the owner; disclose, in writing, to the prospective transferee that the new owner of the property will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; and file a notice with the code enforcement official of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within 5 days after the date of the transfer. Failure to provide such written disclosures creates a rebuttable presumption of fraud. Please immediately contact Code Enforcement Officer Kevin Costa, at 321-868-1220, Ext. 136 regarding any questions and additional information you may need concerning this Notice of Violation. 100 Polk Avenue• Post Office Box 326 • Cape Canaveral, FL 32920-0326 www.citvofcapecanaveral.orn: Telephone (321) 868-1220 • Fax: (321) 868-1247 www.citvofcapecanaveral.orn: Case No. 22-308 Page4 PLEASE GOVERN YOURSELF ACCORDINGLY. KevinCosta City of Cape Canaveral Code Enforcement Officer Certified Mailing Numbers: 7022 3330 0000 1287 6860 THE SPACE 100 Polk Avenue• Post Office Box 326 • Cape Canaveral, FL 32920-0326 BETWEEN" Telephone (321) 868-1220 • Fax: (321) 868-1247 www.citvofcapecanaveral.org 9/8/23, 1:07PMUSPS.com® - USPSTracking® Results tvoJ FAQs) USPSTracking® Remove X TrackingNumber: 70223330000012876860 CopyAdd to InformedDelivery(https://informeddelivery.usps.com/) LatestUpdate Your itemwaspickedupatthepostofficeat 11:42amonAugust 21,2023 in CAPECANAVERAL, FL 32920. U.S.PostalService™ GetMoreOutofUSPSTracking: CERTIFIEDMAIL®RECEIPT Cl DomesticMailOnly USPS Tracking Plus® ..D t:O•- - ..D Delivered CertifiedMail Fee Delivered,IndividualPickedUpatPostOffice ------- ru r"I ExtraServices&Fees(c."8CI<box. D Aen.mReceipt(t,arocopy)$ CAPECANAVERAL,FL32920 Cl August21,2023,11:42am ClO Certlf\\edMallRestrfctadDellve,y$ CJ OA<1sttSigr.atu"'Requ1red$ - '·ULJ CJ D l\\dctt$.Gnalu<e'Ies!nctec!Delivery $ ' ,·, SeeAllTrackingHistory J C Pos; HISTIAKOVA, LUDMI'\\..• /_•'• m 6-n'--............/ •• WhatDoUSPSTracking Statuses Mean?(https://faq.ui 311TAYLORAVEAPTG1 ..,,;os_FL3'29?5)::,...-:; ----- , ru CAPECANAVERAL,FL32920 ru CJ Text& EmailUpdates tJov PSForm3800,April 2015 PSN 7530·02-000-9047 See Reverse forInstructions V USPSTrackingPlus® V ProductInformation SeeLess A Track AnotherPackage \] I Enter tracking orbarcodenumbers https://tools.usps.com/go/TrackConfirmAction?qtc_tlabels1=702233300000128768601/2 CityofCapeCanaveral CommunityDevelopment RE:AFFIDAVITOFPOSTING I, Kevin Costa, Code Enforcement Officer for the City of Cape Canaveral, hereby certify that Ihave posted the following Code Enforcement Notice: Notice of Violationdated 07/27/2023 at the following address: 404 TylerAve unit 6 CapeCanaveral,FL32920 Onthis 2nd day of August 2023 and the required posting atCityHall,I00 Polk Avenue,Cape Canaveral, Florida, 32920. KevinCosta, Code Enforcement Officer State of Florida County of Brevard Onthis 2nd day of August 2023, Kevin Costa, personally appeared, who ispersonally known to me and did not take an oath. ... NotaryPubli Florida Statute 162.12(2), (b), (2) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the dateand places of its posting. THE SPAC 100 Polk Avenue• Post Office Box 326 • CapeCanaveral, FL 32920-0326 BETWEEN° Telephone (321) 868-1220 • Fax: (321) 868-1247 www.citvofcanccanaveral.orn RE: NOTICE OF COMPLIANCE (MASSEY) HEARING THE CITY OF CAPE CANAVERAL, CASE No.22-054 A Florida Municipal Corporation, DATE: 8/7/2023 Complainant, V. STARKE, RICHARD W; STARKE, MARGARET M; STARKE, TYLER B 21535 WOLFS RD FRANKFORT IL 60423 Location of the Violation; 521 Jefferson Ave. Cape Canaveral, FL. 32920 A COMPLIANCE (MASSEY) HEARING will be conducted before the City of Cape Canaveral Special Magistrate on September 26, 2023 at 6:00 p.m. or as soon thereafter as possible. The hearing will be held at the City of Cape Canaveral City Hall Council Chambers, 100 Polk Avenue, Cape Canaveral, FL 32920. The Special Magistrate will receive testimony and evidence at said hearing regarding the violation(s) occurring upon the property of the Respondent(s) as set forth in the Order Imposing Fine attached hereto as EXHIBIT "A" and shall make a determination as to whether such violation(s) is/are corrected pursuant to Section 162.07, Florida Statutes, and Chapter 2, Article VI, of the City of Cape Canaveral Code of Ordinances. Youareentitledto testifyandpresentevidenceandwitnessesin defenseatthehearing.Inaddition, you have a right to be represented by legal counsel at the hearing. The Special Magistrate may enter an order requiring the Respondent(s) to correct the violation(s) and penalties may be assessed up to $250 per day for each first violation or up to $500 per day for each repeat violation described in this notice until the violations(s) has/have been corrected, and, in addition, may include all costs of repairs. However, if the Special Magistrate finds the violation to be irreparable or irreversible in nature, the Special Magistrate may impose a fine not to exceed $5,000 per violation. Please be advised that if a fine is imposed and/or repair costs assessed by the Special Magistrate, a certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation CaseNo.2022-054 Page2 exists and upon any other real or personal property owned by the Respondent which can be satisfied by foreclosure and sale of said property and other personal or real property. UPON ISSUANCE OF A FINAL DECISION AND ORDER BY THE SPECIAL MAGISTRATE, AN AGGRIEVED PARTY, INCLUDING THE CITY OF CAPE CANAVERAL, MAY APPEAL THE FINAL ORDER OF THE SPECIAL MAGISTRATE TO THE CIRCUIT COURT AS PROVIDED BY FLORIDA LAW. FURTHER, IF AN APPEAL IS FILED, THE AGGRIEVED PARTY MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE SPECIAL MAGISTRATE'S HEARING IS MADE, WHICH INCLUDES THE TESTIMONYAND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. DATED this 8th day of August 2023. Chris Robinson, Code Enforcement Officer 321-868-1220 Ext. 116 l"- ru Certified Mail Fee l"- $ .:T ExtraServices& Fees(checkbox, D Return Receipt (hardcopy) M D Return Receipt (electronlc) § D Certified Mail Restricted DeliVOI)' Cl D Adult Signature Required 0 Adult Signature Restricted 091\\ve Postage ""--,,,._ STARKE, RI otatPosta1 fTl "'--- MARGARET SentTo 21535 WOLF CJ SireetandA FRANKFORT IL 60423 f'- COMPLETE TH/$ SECTION ON DELIVERY SENDER: COMPLETE THIS SECTION A Signature Complete items 1, 2, and•3. Print your name and address on the reverse X essee so that we can return the card to you. 8. Received by (Printed Name) livery Attachthiscardtothebackofthemailpiece, or on the front if space permits. 1.ArticleAddressedto: D. Is delivery address different from Item 1? If YES, enter deliveryaddress below: STARKE, RICHARD W; STARKE, MARGARET M; STARKE, TYLER B 21535 WOLFS RD FRANKFORTIL 60423 3. Service Type Priority Mail Express® Adult Signature D Registered Mail™ Adult Signature Restricted Delivery D Registered Mail Restricted 1111111111111111111111111111111111111111111111 Certified Mail® Delivery JI.signature Confirmation™ 9590 9402 8021 2305 1870 49 Certified MailRestricted Delivery D Signature ConlirmaUon - --------------------------------------------------- Collect on DeliVEIIY Restricted Delivery 2.Article Number (Transfer from service label) Collect on Delivery Restricted Delivery -· ldMail. 7022 3330 0001 4727 8171 ldMailRestrictedDelivery $500 Domestic Return Receipt PS Form 3811, July 2020 PSN 7530-02-000-9053 ,11 J efv t tJ01.\\ SPECIAL MAGISTRATE OF THE CITYOFCAPECANAVERALFLORIDA TIIE CITY OF CAPE CANAVERAL, Complainant, V. Case No. 22-054 RICHARD W. STARKE, MARGARET M.STARKE, and TYLER B. STARKE, 21535 Wolf Road Frankfort, IL60423, Respondents. :/ 1 AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER THIS CAUSE came before the Special Magistrate of the City of Cape Canaveral, Florida on October 25, 2022, and on January 25, 2023, for consideration after due and lawful notice to Respondents, RICHARD W. STARKE, MARGARET M. STARKE, and TYLER B. STARKE, 21535 Wolf Road, Frankfort, IL 60423, to determine: (1) whetherthat certain property located at 521 Jefferson Avenue, Cape Canaveral, Florida 32920 (the "Subject Property"), with four residential units, exceeds the maximum density allowed by the City of Cape Canaveral Zoning Code; (2) whether Respondents added a fourth unit without obtaining a building permit; (3) whether Respondentsare inarrears in failingtopay business taxes; and (4) whether Respondents failed to register their vacation rental units with the City. 1 The Special Magistrate is sua sponte amending and superseding the Findings of Fact, Conclusions of Law and Order entered on February 15, 2023. This Amended Order requires removal of the non-permitted kitchen in the rear of the bottom floor of the main structure. The City administratively grandfathered the Cottage; therefore, removal of the kitchen in the Cottage while retaining the non-permitted kitchen in the main structure, contemplated in the original Order, would not be appropriate. The City's Zoning Code would allow no more than two residential units on 0.14 acres in R-2 zoned property. Despite the unavailability of two additional off-street parking spaces required by Section 110-491 of the City Code, the City administratively allowed Respondents a third residential unit under a "grandfathering" theory-the idea that the prior owner established the use before the zoning code added the restriction. As to the third and fourth units, the City's files contain no permits and neither party presented evidence establishing the dates of construction. As to the legality of renting four units, Respondents made arguments that raised the question whether the City is equitably estopped from enforcing the Subject Property's maximum residential density. For the reasons explained below, an equitable estoppel cannot effectively increase residential density over that allowed by the City's Comprehensive Plan and Zoning Code. Nor did the Starkes establish that they reasonably relied on any representation by the City that they could rent four units lawfully. Only the City Council has legislative power to amend the City's Comprehensive Plan and Zoning Code to increase allowable density in R-2 zoned areas of the City. Hence, the Starkes cannot lawfully rent more than three residential units on the Subject Property and the Special Magistrate is ordering that they cease advertising for, and renting of a fourth unit. They must also remove the non-permitted kitchen in the addition to the bottom floor of the main structure to comply fully with the City Code. As to the second issue, the evidence established clearly that all four residential units existed before the Starkes purchased the Subject Property. The City failed to meet its burden of proof that they engaged in construction without a building permit. Illegal construction occurred under the prior owners. 2 As to the third issue, the City represented that all business license taxes are now current. Lastly, Respondents must register all units with the City as a vacation rental for every year since they became owners and pay all associated registration fees. FINDINGS OF FACT The Special Magistrate finds as follows: Background on the Subject Property 1.According to the taxand permit history, a single family home was constructed on the Subject Property in 1964, a year after the City's inc01poration. In 1980, the original owners, Peggy and Robert Johnson, permitted and constructed a second story unit. 2 2.The Subject Property is zoned R-2, medium density residential. The subject property is 0.14 acres, which, at least after 1981, would allow no more than two residential units. 3.The City's files do not include permits for construction of any other units. Ms. Starke's contention that the City lost permitting documents for two additional units is pure 3 speculation and not plausible. Construction of the third andfourth units, without building permits notifying the City for inspections, was illegal. 4.The original owners added the third unit to the ground floor of the main structure at an undetermined date in or before 2014. Beginning in 2015, the Brevard County Property 4 Appraiser beganclassifying the Subject Property as a triplex. The ground floor of the main 2 The City established a medium density of 15 dwelling units per net residential acre as early as 1981, the year after the Subject Property's conversion into a duplex. Municode.com identifies the precursor to Section 110-292 as§ 637.17 of the City's 1981 Code. 3 Ms. Starke pointed to an alleged error in an electrical permit from November 10, 2016, listing her as the owner almost two years before she purchased the Subject Property. Respondent's Exhibit 4 (second page). However, the City's software merely updated the owner's identity when printed after her purchase. This provides insufficient evidence to establish that the City lost documentation of two permits. 4 Respondent's Exhibit 2. 3 structure nowhas two kitchens, a determining factorestablishing thenumber of unitsina multi- family dwelling, but one not permitted. 5.No evidence established when the original owners actually added a kitchen and enclosed the Cottage, an independent structure in the Property's rear, but electrician Robert Hoog testified he performed electrical work in the Cottage around the time of Hurricane Erin. The Special Magistrate takes judicial notice that Hurricane Erin impacted the Cityin August 1995.Mr. Hoog testified that the original owners' son lived in the Cottage for "many years." 6.On November 1, 2016, the original owners, working through realtorEdPlato,wrote toDavid Dickey, the City's Community andEconomic Development Director,"What I need with this property is it to be grandfathered as a triplex. That designation is simply for loan purposes. I canget the buyer to sign an affidavit or whatever you needstating he will not rent out the detached 5 part.Thank you for your consideration."Mr. Plato made no disclosure of a fourth unit. The record contains no evidence of a response by the City to Mr. Plato. The Listing for Sale: "Legal 3 Unit Rental" 7.In the summer of 2017, Respondent Margaret Starke, looking to purchase rental property in the City of Cape Canaveral near the beach, worked with a buyer's realtor, Pam Vanderveer.Ms. Vanderveer provided the seller's listing to Ms. Starke, which stated, "Legal 3 Unit Rental," comprising of: 0 The Main house Unit 0 The Upstairs unit. 0 The outside Cottage unit aka "Enclosed Room" per BCPA \[Brevard County Property Appraiser\]. The listing did not disclose the fourth unit, in the rear bottom floor of the main house, which Ms. 5 City's Composite Exhibit 3 4 6 Starke observed when she walked through the Subject Property. Ms. Starke testified she did not see the seller's listing, which the Special Magistrate perceived as poormemory. Realtors customarily provide their purchasing clients with listings of available properties and, in this case, the realtor wrote specifically to the City that she provided the listing to Ms. Starke, stating "Legal 3 Unit Rental." 8. The discrepancy between the four units Ms. Starke observed during her walk- through and the "Legal 3 Unit Rental" listing put her on inquiry notice as to the fourth unit's legality.However, her inquiry to the City, through her realtor, centered on whether the Subject Property was a lawful triplex, as opposed to a four-unit property. 9. On June 13, 2017, the realtor inquired with a City clerical assistant, Karen Hutchingson, as follows (emphasis added): Majorie (sic) Starke (realtor #815-954-2806) is inquiring as to whether or not 521 Jefferson Avenue is a City approved triplex. Looking thru Laserfiche, it appears to me the property was built as aSFR\[single family residence\] (permit#561), then an addition was addedon (permit #3150 and#3204) and the City acknowledged the property to be a duplex (letter sent dated 08-13-1981). However, I do not see any permitsor lettersallowing a triplex. The lot size is not large enough to allow a triplex. The realtor has a buyer and wants to know if the property would be "grandfathered" in as a 7 triplcx. 10. Ms. Starke consulteddirectly with the City'seconomicdevelopment director, Mr. Dickey, about the Subject Property as well as about another property she was considering, on Adams Avenue. Mr. Dickey informed her that the Adams Avenue property had non-permitted work performed and, therefore, she could not rent it lawfully as a multi-unit property. This 6 See id. (Cape Canaveral 000009). 1 Id (Cape Canaveral 000011). 5 infonnation steered Ms. Starke to the Subject Property, on Jefferson Avenue. Ms. Starkeargued 8 that Mr. Dickey "implied this was a conforming property." 11. However, before her purchase on August 28, 2017, Ms. Starke and Mr. Dickeydid not discuss the number of units on the Subject Property. Mr. Dickeytestified hehadnevervisited the Subject Property beforethe Starkes' purchase andthathad noknowledge atthat time thatthe Subject Property had four units.These critical facts foreclose reasonable reliance ona knowing representation by the City, which are necessary elements for an equitable estoppel. 12. The Starkes closed on the Subject Property's purchase from the original ownerson August 28, 2017 for $345,000.00. Ms.Starke testified that the price reflected the prospect ofrental income from four units. However, the listing as a "Legal 3 Unit Rental" placed the Starkes on notice not to overpay for an illegal, fourth unit. Hurricane Irma and "Grandfathering" as a Three-Unit Property 13.Shortly after the Starkes' purchase, on September 11, 2017 Hurricane Irma struck the City and caused substantial damage to the Subject Property. 14. City Code Officer Chris Robinson inspected thedamage and informed Ms. Starke she could not rent the rear unit because the number of units exceeded that allowed under the City's 9 Zoning Code.Officer Robinson recalled an earlier inspection on an "unrelated complaint" in which the Cottage wasmerely a "shed," with a sinkand cabinets but no cooking facilities.Hehad reason to believe that the Starkes had added a full kitchenafter their purchase; however, evidence would later establish that the original owners, not the Starkes, turned the "shed" into an illegally rentable unit, as discussed below. 8 Respondents' Exhibit 1 (third page). 9 Respondent's Exhibit 10 ("In the process ofmy remodeling/rebuilding due to damage from the hurricane hma in 2017, at that point in time I was instructed by Chris that the outbuilding was not permitted.") 6 15. The City also questioned whether it could lawfully issue a building permit for the Cottage repairs, given its status as an unlawfulrentalunit. Ms.Starke, thereafter, asked her realtor, Ms. Vanderveer, to attempt to resolve the matter with the City. 16. On December 7, 2017, Ms. Vanderveer wrote to Mr. Dickey and said she "provided to the Buyers priorto closing" the Subject Property's listing as a "Legal 3 Unit Rental," as well as a Brevard County Property Appraiser Data sheet identifying the Subject Property as a ''triplex" and showing the Cottage's enclosure on a sketch. The sketch, however, identified only two bedrooms-B1 and B2-in the main house. The Property Appraiser identified the Cottage as an "Enclosed Room" and not as a "B3" bedroom. Ms. Vanderveer inquired with David Dickey 10 about getting the building permits approved for hurricane repairs. 17.In order to facilitate issuance of building permits, Mr. Dickey contemplated whether to recognize the Subject Property as having a "grandfathered" use as a 3-unit rental property from before the City's density restrictions went into effect. 18.On December 12, 2017, he informed Ms. Vanderveer, "I needsomething fromthe previous owner indicating that the detached structure has been used as a rental/living unit. 11 Preferably, to include how long it was used as such." 19. Ms. Vanderveer replied,"I have reached out again to the list agent and her broker. Would an email from oneof themsuffice with this information as their representative? Seller (sic) 1213 is older and does not do email." Mr. Dickey said, "That would be fine." 20.OnDecember 13, 2017, AnnWagler, the sellers' realtor, emailed Ms. Vanderveer: 1 °City's Composite Exhibit 3. 11 Id. (Cape Canaveral 000003). 12 Id. (Cape Canaveral 000007). 13 Id. (Cape Canaveral 000006). 7 As I explainedto you inthatfirstcall, the building out back (outside Cottage unit aka "Enclosed Room" per BCPA) had 1 tenant for a period of ten years who lived there. I do not know exact dates. When he moved out the owners did not rent again as they wanted to 14 do some traveling. 21.OnDecember 14, 2017, Ms. Vanderveer forwarded Ms. Wagler's email to Mr. 15 Dickey. 22.OnMarch 5, 2018, Mr. Dickey spoke withMs.Starke and did notrecall receiving the information he had requested about the Cottage's long-term use as a rental unit. (Cape Canaveral 000003). Ms. Vanderveer thereupon re-sent her December 14, 2017 email to Mr. 16 Dickey regarding use of the Cottage as a rental unit for a decade. 23.According to photographic evidence, the Subject Property has space for four off- 17 street parking spaces in front of the main structure. Therefore, theSubject Property appeared to have sufficient off-street parking for only two units. 24. However, Mr. Dickey excused the lack of sufficient off-street parking for the third unit and, thereafter, administratively agreed to accept the Subject Property as a three-unit property under a "grandfathering theory." Mr. Dickey assumed that the prior owners had added the third unit before the zoning code restricted the property to two units. The Brevard County Property Appraiser's Classification 25.Ms. Starke contended that they should have the right to rent four units at the Subject Property because she relied on the Brevard County Property Appraiser's classification of the 14 Jd. (Cape Canaveral 000002). 15 Id. (Cape Canaveral 000002). 16 Id. (Cape Canaveral 000001). 17 City's PowerPoint slides, fourth slide (October 25, 2022) and fifth slide (January 24, 2022), collectively marked as City's Composite Exhibits 1 and 2. 8 18 PropertyUseas "0839-THREEORFOURLIVINGUNITS-NOTATTACHED." 26.Ms. Starke also argued that the Brevard County Property Appraiser's listing of the Subject Property as a "triplex" referred to the three units in the main structure. She submitted an email from Bill Bozenhard, Brevard County Property Appraiser's office, who wrote to Ms. Starke 19 on January 27, 2023 that a triplex is "a single structure \[that\] has exactly three individual units." Ms. Starke pointed to the Property Appraiser's sketch of the independent structure as an "Enclosed Room." However, the sketch did not identify the enclosed Cottage as a bedroom nor identify three bedrooms in the main structure. 27.TheBrevard County PropertyAppraiser is an independent constitutional officer. The City isnot bound by any representation by the Property Appraiser's office. No evidence was presented that the City knew how the Property Appraiser designated the Subject Property in its system before the Starkes purchased the Subject Property. The Starkes did not point to any instance in which the City interpreted the term "triplex"to mean that all three units had to be in the same structure as opposed to on the same property.Mr. Dickey understood he was grandfathering the Cottage to make the Subject Property a three-unit property. 28. Ordinarily, theCity would notify the Property Appraiser when the number of units increases; however, in this case, because no permits were pulled for thethird orfourth units,the City would not have supplied thatinformation tothePropertyAppraiser.Mr. Robinson suggested the property owner herself provided such information to the Property Appraiser. Alleged Non-Permitted Construction Work 29. TheCity initiallycitedtheStarkes for non-permitted work in transforming the 18 Respondents' Exhibit 2, page 1 of 2. 19 Respondent's Exhibit "11." 9 "shed" into a fourth unit, the Cottage. However, the City did not sustain its burden of proof on this claim. About two months before closing on their purchase, Respondents arranged for a property inspection by Green Leaf Home Inspections. Inspector Matthew Parlefskyidentified four 20 apartment units, with four separate kitchens, in his Inspection Report dated June 26, 2017.The 21 prior owners posted photographs on the internet showing four units. Further, Robert Hoog, a licensed electrician who performed work on the property for the Starkes and the prior owners, testified persuasively that the Subject Property had four units long before the Starkes' purchase. Therefore, the City could not sustain its burden of proof that the Starkes added the fourth unit in the Cottage without obtaining a building permit. 30.After Hurricane Inna in September 2017, Respondents complied with the City's requirements in obtaining building permits. Ms. Starke testified and submitted written argument: We pulled ALL the necessary permits to rebuild the property to the pre-hurricane status. We had multiple visits and inspections during the nearly year-long repair/remodel process. The repair/remodel process consisted of NO floor plan changes, only upgrading of materials and workmanship. These repairs required complete window and door replacement with Hurricane upgrades, roofing repair/replacement, plumbing and electrical repairs, etc. All following the check list provided by Dave Dickey. After these repairs were completed and signed off by city, we went back to renting property as a 4 unit per our original plan and expectation as 22 we purchased this as a conforming multi-unit property. The City presented no evidence contradicting Ms. Starke's assertion that the City permitted and approved of the post-hurricane repairs. Registration of Rental Units and the Notice of Violations 31.The City advised the Starkes on multiple occasion that they must register the 20 Respondents' Exhibit 6. 21 Respondents' Exhibits 7 and 8. 22 Respondents' Exhibit 1 (second page). 10 Subject Propertywith the City, through its contractor, ProChamps, as a vacation rental. 32.OnApril25,2022,Staffreceived areportfromProChamps thatvacationrentals at the Subject Property were not registered. ProChamps sent a lettertotheStarkesadvising them of the registration requirement, but the parties presented no evidence of registration and payment of associated registration fees. 33.The City served a Notice of Violation dated April 25, 2022, on Respondents via U.S.Postal Service Certified Mail. Respondents received the Notice of Violation on May 6, 2022, according to a signed Return Receipt. 34.The Notice of Violation gave Respondents thirty days in which to correct the violations, in particular, to discontinue renting the fourth unit, register the vacation rental units with ProChamps, provide twoadditional off-street parking spaces for the third dwelling unit (for which there was no space), and apply for and obtain all required permits and arrange and have the City conduct final inspections on the improvements. 35.Officer Robinson spoke with Ms. Starke about theNotice of Violation onMay 12, 2022, and explained she must register the property with ProChamps as a vacation rental and that the property's density allows for only two units. He said the property could have a third unit by the City administrative action on a grandfathering theory, but not four units. 36.OnJune6, 2022,Mr.Robinson spoke with theproperty owner again and explained that Airbnb should now reflect only three units for rent. The property owner said she would register with ProChamps. 37.Officer Robinson followed-up on August 17, 2022, determining that the Starkes still had not registered with ProChamps. Neither party presented clear evidence that the Starkes ever corrected this deficiency for all years they have rented the Subject Property. 11 38. As of August 17, 2022, Airbnb showed that Units #1 and #2 had been combined into one unit, but could still be rented separately. The Subject Property still has four distinct units because it has four separate kitchens. 39.A follow up by Officer Robinson on October 11, 2022, revealed no change from the status in August. 40. Ms. Starke called Officer Robinson on October 20, 2022, and argued the City should not require her to give up the fourth unit because she purchased the property understanding that the property had four units. Notice of Hearings 41. For the hearing on October 25, 2022, the City served a Notice of Hearing dated October 3, 2022, on Respondents via U.S. Postal Service Certified Mail, which was delivered on October 8, 2022, according to USPS Tracking. 42. OnOctober 28, 2022, the Special Magistrate issued an Order Continuing Hearing. The City served the Order on November 4, 2022, by U.S. regular and certified mail. The return receipt indicated delivery on November 9, 2022. 43.For the continued hearing on January 24, 2023, the City served a Notice of Hearing on December 19, 2022. The return receipt and USPS tracking data indicated delivery on December 23, 2023. Business Tax Receipts 44. Officer Robinson testified that the Starkes "are good" on their obligation to pay business tax receipts. 12 CONCLUSIONSOFLAW Notices The City's service of the Notice of Violation, Notices of Hearing, and Order Continuing Evidentiary Hearing compliedwith the Section 2-253 of the City Code and Florida Statutes§§ 162.06 and 162.12. R-2 Zoning and Land Use The Subject Property is zoned R-2 medium density, which restricts multifamily dwellings to no more than 15 dwelling units per net residential acre. City Code, sec. 110-292. The City Council intended the R-2 zoning restrictions to result in a "variety of housing types," "promote areas free from congestion and overpopulation," and "maintain the residential character and integrity of the area" City Code, sec. 110-291. Based on 15 dwelling units per net residential acre, the Subject Property, at 0.14 acres, could have no more than two residential units, absent recognition of the third unit under a "grandfathering" theory. See Rollison v. City of Key West, 875 So. 2d 659, 663 (Fla. 3d DCA 2004) (non-conforming use '"is grandfathered in' because her use existed lawfully before the current restrictions on short-term rentals took effect").A grandfathered use should not be "incautiously rescinded." Lee County v. Sunbelt Equities, fl Ltd. Partnership, 619 So. 2d 996, 1006 (Fla. 2d DCA 1993). Mr. Dickey testified that, on the City's behalf, he recognized the Cottage's rental as a "grandfathered" use. Hence, the Special Magistrate presumes entitlement to the unit in the Cottage even though neither party presented evidence clearly establishing a date of construction before enactment of the density restriction. The City's Comprehensive Land Use Plan states at PolicyLU-1.3.3: The City shall enforce its requirements pertaining to densities and intensities of land use in each land-use category-i.e ..... 13 *R-2, Medium Density Residential and Townhouse Apartments: maximum 15 units/acre The requirements of a municipality's comprehensive plan are strictly applied. Board of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). A local government has discretion to allow less than the maximum development density, but notmore.See id at 469. "Zoning regulations duly enacted pursuant to lawful authority are presumptively valid and the burden is on him who attacks such regulation to carry the extraordinary burden of both alleging and proving that it is unreasonable and bears no substantial relationship to the public health, safety, morals or general welfare." Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439, 443 (Fla. 1959). The Starkes made no such showing. Off-Street Parking Requirements Section 110-491 of the City Code establishes off-street parking requirements asfollows: There shall be provided at the time of the erection or change of use of any main building or structure or at the time any main building or structure is enlarged or increased in capacity, by adding dwelling units, guestrooms, floor area or seats, minimum offstreet automobile parking space with adequate provisions for ingress or egress in accordance with the following: (11) Residential uses, including ...multiple-family dwelling..... Two spaces for each living unit... . (15) All other uses. To be determined by the city manager or designee, who shall use the ratios established in this section as a standard for determining the requirements. The City reasonably interprets the Zoning Code to require at least two off-street parking spaces for each vacation rental unit in R-2 zoned areas. Therefore, because the third residential unit is "grandfathered," the four residential units would require at least six off-street parking spaces, instead of eight. Because the Subject Property has room for only four off-street parking spaces, the fourth residential unit violates City Code section 110-491. 14 EquitableEstoppcl The doctrine of equitable estoppel may be applied against a governmental entity only under exceptional circumstances. Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745 (Fla. 3d DCA 1994), rev. denied, 645 So. 2d 455 (Fla. 1994). One must establish proof of the following elements: The doctrine of equitable estoppel may be invoked against a governmental body when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) hasmade such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights that the owner has acquired. Citrus Cty. v. Halls River Dev., Inc., 8 So. 3d 413, 421-22 (Fla. 5th DCA 2009) (citing Verizon Wireless Pers. Commc'ns, L.P. v. Sanctuary at Wulfert Point Cmty. Ass'n, 916 So. 2d 850, 856 th (Fla. 2d DCA 2005)); City of Hollywood v. Hollywood Beach Hotel Co., 283 So. 2d 867(Fla. 4 DCA 1973), rev'dinpart, 329 So. 2d 10 (Fla. 1976). Ms. Starke argued that she purchased the Subject Property because Mr. Dickey "implied this was a conforming use."However, for an equitable estoppel to apply, the City must have "knowledge, actual or constructive, of the real facts." Rinker Materials Corp. v. Palmer First Nat'! Bank & Tr. Co., 361 So. 2d 156, 157 (Fla. 1978) (citing 28 Am.Jur.2d, Estoppel and Waiver, Section 35).Ms. Starke and Mr. Dickey both testified that they never discussed the number of Mr. Dickey testified that he never units at the Subject Property before the Starkes purchased it. visited the subject property or knew it had four units before their purchase. No one presented evidence of actual or constructive knowledge on his part at the relevant time. In anyevent,in Citrus County, supra, 8 So. 3d at 422, the Fifth District Court of Appeal held that an equitable estoppel cannot change allowable land uses: \[E\]stoppel should be invoked against the government only in exceptionalcircumstances. Watson Clinic, LLPv. Verzosa,816 So. 15 2d 832, 834 (Fla 2d DCA 2002). And, most importantly, the doctrine of estoppel does not generally apply to transactionsthat are forbidden by law or contrary to public policy. Montsdoca v. & Trust Co., 85 Fla. 158, 95 So. 666, 668 (Fla. Highlands Bank 1923);DadeCountyv.Gayer,388So.2d1292,1294(Fla.3dDCA 1980). That is the case here as the Plan, which enjoys legal primacy regarding allowable land uses, prohibited the property's use as a multifamily condominium. Consequently, the doctrine of equitable estoppel cannot effectively increase residential density above the 15 dwelling units per net acre lawfully enacted in the City's Comprehensive Plan and Zoning Code. fuParklandv. Septimus, 428 So. 2d 681,683-684 (Fla. 4th DCA 1983), the Florida Fourth District Court of Appeal recognized that an equitable estoppel could prohibit a local government from reducing density from a level previously approved in a rezoning by the local government, (from 5.49 unitsper acre to 3 units per acre, in that case), if the party seeking the estoppel could demonstrate substantial reliance on government action. The Court commented:"Keeping inmind that we are dealing with an exercise ofthe police power of the government in planning and zoning the future use of property, we think the use of equitable estoppel to interdict such governmental action should be cautiously invoked...." Id. at 683 (holding that an estoppel would not apply because appellees, subsequent titleholders, "did not substantially change their position in reliance upon the governmental act in question.") In the present case, Respondents failed to present evidence of a substantial change in position inreasonable reliance on any actionoromission by the City. Ms. Starke and :Mr. Dickey never discussed the number of units allowed at the Subject Property before theStarkes' purchase. The City only received communications requesting recognition of the Subject Property as a "triplex." Moreover, because the sellers listed the Subject Property as a "Legal 3 Unit Rental," the Starkes could not have reasonably believed they were purchasing a legal four unit property. 16 Norcan the Starkes establishan equitable estoppel against the Citybased on any representation by the Brevard County Property Appraiser, including its classification of the Subject 23 Property beginning in 2018 as"THREE OR FOUR LIVING UNITS - NOT ATTACHED."The Brevard County Property Appraiser had no authority to determine whether the Subject Property compliedy with the City's residential density limitations. Nor did the Property Appraiser have statutory authority to enforce or excuse those limitations. Gulf & E. Dev. Corp. v. Ft. Lauderdale, 354 So. 2d 57, 59 (Fla. 1978) ("Zoning is a legislative function which reposes ultimately in the governing authority of a municipality.")(citing Josephson v. Autrey, 96 So. 2d 784, 787 (Fla. 1957)). An independently-elected Constitutional officer, the Property Appraiser has statutory responsibility to determine property valuations, apply property tax exemptions, and prepare an annual tax assessment roll, either accepted or rejected by the Florida Department of Revenue. See generally,Florida Statutes§ 195.096. The statutory scheme establishes a separation of powers from municipalities. Municipalities have exclusive authority to set tax rates while property appraisers have exclusive authority to establish property valuation. See generally, Florida Statutes §§ 166.211, 193.011. Therefore, the Starkes cannot establish an equitable estoppel against the City based on any representation by the Brevard County Property Appraiser. The Property Appraiser cannot speak for, or bind the City as a matter oflaw. Removal of a Kitchen The City reasonably determines the number of independent units in a multi-unit property based on thenumber of kitchens. The City grandfathered the Cottage unit through Mr. Dickey's administrative decree. Therefore, to comply with the density limitation, now grandfathered by the Cityas a three-unit property, the Starkes must remove the non-permitted kitchen in the addition to 23 Respondents' Exhibit 2, page 1 of 2. 17 the main structure's first floor. The Starkes should work with the City's Building Department to ensure that they, or their 24 contractors, pull all necessary permits pursuant to section I05.1 of the Florida Building Code, which states (emphasis added): Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any impact-resistant coverings, electrical, gas, mechanical or plumbing system, the installationof which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit. The Starkes will also need to allow inspections by the City's Building Department, pursuant to Section 110.1 of the Florida Building Code, incorporated into the City Code. Registration with ProChamps ProChamps is an entity with whom owners must register their vacation rentals. Section 110-486 of the City Code states: (c) Registration. Registration shall be based on the city's fiscal year similar to city business tax receipts. Prior to initiating the operation of a property as a vacation rental and prior to October 1 for each subsequent year, a vacation rental owner, either personally or through an agent, shall register with the City of Cape Canaveral utilizing forms promulgated by the city. A leaseholder of an entire dwelling unit or house mayalso register the entire dwelling or house as a vacation rental provided written consent of the vacation rental owner is filed with the city along with verification of the lease. Registration may be conducted by electronic means by the city and through a third party contractor retained by the city for such purposes. The city, with the approval of the city manager, may extend the date that such registration is required by notice on the city's website, and prorate up to 50 percent of the required registration fee for initial registrations filed after April 1. A separate registration shall be required for each vacation rental. The operation of a vacation rental without registration after the date registration is 24 The City adopted the Florida Building Code at Section 82-31 of the City Code. 18 required shall be a violation of this section, exceptin the instanceof providing accommodations to fulfil a pre-existing contract as provided hereinafter. Upon receipt of written notice by the city that a vacation rental is in noncompliance with the registration requirements, the vacation rental owner or agent, as applicable, shall have a five-day grace period in which to register the vacation rental. Renting the subject vacation rental without registration after the five-day grace period shall constitute a separate violation of this section for each day after the grace period. No evidence was presented that the Starkes registered the vacation rental units with ProChamps for each year they rented them to tenants, from the time of their purchase in September 2018 to the present, and that they paid all registration fees. No Violation of Requirement to Pay Business Tax Receipts The Starkes cured the cited violations of City of City Code Sections 70-67, 70-74, and 70- 75 by paying business tax receipts. No Construction Without Building Permits Because the prior owners constructed the fourth unit, the Starkesthemselves did not failto obtain building permits for its construction inviolation of Florida Building Code sections 105.1 and 110.1 (incorporated into Section 82-31 of the City Code). However, their purchase of the Subject Property already violating the zoning ordinance did not excuse the non-confonnity. ORDER BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED AS FOLLOWS: 1.Respondents have until May 22, 2023 to bring the Subject Property into full compliance with Sections 110-292, 110-491, and 110-468 of the City Code. In particular, Respondents shall: a. Discontinue advertising for rentand renting a fourth residential unit; 19 b.Remove thenon-permittedkitchen intheaddition tothefirstfloorofthemain structure, including all cooking facilities. Removal of the non-permitted kitchen shall include removal of all cooking facilities. Respondents are advised to work with the City's Building Department pull any and all necessary permits and allow all inspections; and c. Register all vacation rental units with ProChamps, including the unlawful fourth unit, for each yearbeginning with their purchase of the Subject Property, and to pay all registration fees. 3. If Respondents fail to comply within the time-period set forth in this Order, the Code Enforcement Officer shall schedule a compliance hearing before the Special Magistrate and duly notify Respondents of the hearing in accordance with law. Respondents shall have an opportunity to appear and present testimony and evidence as to whether the violations are continuing on the Subject Property. 4. The Special Magistrate shall make a final determination at a compliance hearing whether Respondents have achieved compliance, and if not, will impose fines. Upon a finding that the Subject Property remains inviolation, the SpecialMagistrate shall issue a fine in an amount up to $250.00 per day for a first violation and up to $500.00 per day for each repeat violation, per violation, until the Respondents have corrected the violation. In addition, a fine may include the City's enforcement costs. 5. Any fines which may be imposed may become a lien in favor of the City on the Subject Property and upon any other real or personal property of the Respondents, pursuant to Section 2-252(e) of the City Code and Florida Statutes§ 162.09(3). 20 6. All non-homestead real property subject to a code enforcement lien is subject to foreclosure pursuant to Florida Statutes§ 162.09(3) and the City may obtain an award ofits costs, including a reasonable attorney's fee, pursuant to Florida Statutes§ 162.10. DONE AND ORDERED atCape Canaveral,Florida,this 20th day of February, 2023. Special Magistrate City of Cape Canaveral STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me by hysical presenc or online notarization Ol} this l) day of lt)Q\\'U:U\\\\ , 2023 by RicS. Geller. Said person (check one) r;/ is personally known to me, produced a driver's license (issued by a state of the United States) as identification, or D produced other identification, to wi-t ---------------------------- " A Notary Public - State of Florida NOTICE OF RIGHT OF APPEAL: Respondents are hereby notified that they or any party who may be aggrieved by this Order, including the City of Cape Canaveral, has the right to appeal this Order to the Circuit Court in and for Brevard County, Florida, within thirty (30) days of the rendition of this Order as set forth in Florida Statutes § 162.11. 21 CERTIFICATE OFSERVICE I herebycertifythat I furnished a trueandcorrectcopyoftheaboveandforegoingFindings of Fact, Conclusions ofLaw, and OrderonViolation(s) bycertified and regular U.S.Mailtothe Respondents,RICHARDW. STARKE,MARGARETM.STARKE,andTYLERB.STARKE, 21535WolfRoad,Frankfort,IL60423,this S;\\RSG\\CLIENTS\\CapeCanaveral,CityOf\\SpecialMagistrateServicesC761-25271\\Hcarings\\Hearings2023\\012423\\FindingsOfFact, ConclusionsOfLawAndOrder(AMENDED) - RichardAndMargaretStarke - Rsg - 022023.Docx 22 =,·••,,•• .$:-PostalService™ CERTIFIEDMAIL®RECEIPT f" DomesticMailOnly ..a l"-- l"-- ru "'c-er1=m 1ed_M_a_llFe_e_-'---'-'-----'----"'C.-------.::.........,- ; $ 7 "'E""xtr=a"Se:-:rv""icc::es::-c&;;,F;=:ecces:---;/chec""'k:--:-oo-x-,a--:-dd.,.,tee-as-.,,-9------V r-'I D ReturnReceipt(hardoopy) $ _,_,_<J ---- 1 D ReturnReceipt(electronic)$---I- D CertifiedMailRestJ1ctedDelivery$ _ , , 0 AdultSignatureRequired$ -------- I,-,;..,,-+ D AdultSignatureRestrictedDBllvery$ Postage m STARKE, RICHARD m otalPostag, m MARGARETM;STA $ SentTo 21535 WOLFSRD StreatandAp FRANKFORTIL60423 r-- PSForm3800, April2015PSN7530-02-0009047See Reverse forInstructions COMPLETETHISSECTIONONDELIVERY SENDER:COMPLETETHISSECTION A.Signature Completeitems 1,2,and3.Alsocomplete item4 If Restricted Deliveryisdesired. X Printyournameandaddress onthereverse sothatwecanreturnthecardtoyou. B.Receivedby(PrintedName) Attachthiscardtothebackofthemailpiece, oronthefrontIfspacepermits. D.rsdeliveryaddressdifferentfromitem1? 1.ArticleAddressedto: IfYES,enterdeliveryaddressbelow: STARKE,RICHARDW;STARKE, MARGARETM;STARKE,TYLERB 21535WOLFSRD FRANKFORTIL60423 3.ServiceType 19 CertifiedMailPriority MailExpress'" RegisteredReturnReceiptforMerchandise InsuredMailCollectonDelivery 4.Restricted Delivery?(ExtraFee) Yes 2.ArticleNumber 70223330000147277600 (Transferfromservicelabel) PSForm 3811,July2013 DomestlcReturnReceipt