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HomeMy WebLinkAboutcocc_special_mag_orders_bateson_20250325SPECIAL MAGISTRATE OF THE CITY OF CAPE CANAVERAL, FLORIDA THE CITY OF CAPE CANAVERAL, A Florida Municipal Corporation, Complainant, V. Case No. 24-208 Diane D. Bateson Living Trust, 8801 Sea Shell Ln. Cape Canaveral, FL 32920, Respondent. CFN 2025095096, OR BK 10333 PAGE 564, Recorded 05/12/2025 at 04:33 PM, Rachel M. Sadotf, Clerk of Courts, Brevard County # Pgs:9 ORDER IMPOSING FINES AND LIENS THIS CAUSE came before the Special Magistrate of the City of Cape Canaveral, Florida on March 25, 2025, after due and lawful notice to the Respondent, Diane Bateson Living Trust, regarding that certain parcel of real property located at 8801 Sea Shell Ln., Cape Canaveral, FL. 32920 (the "Subject Property"), to determine the following: (1) whether Respondent failed to timely comply with the Special Magistrate's Order dated October 25, 2024; (2) whether the Subject Property remains in violation of the City of Cape Canaveral Code of Ordinances; and (3) whether to impose a fine and a lien pursuant to Florida Statutes § 162.07 and Article VI, chapter 2 of the City Code. Having heard the arguments, evidence, and testimony presented in accordance with Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d DCA 2003), and having reviewed the record and being fully advised, the Special Magistrate issues the following Findings of Fact and Conclusions of Law, which are incorporated into this Order as set forth herein. Findin-s of Fact The Special Magistrate finds as follows: Diane Bateson Living Trust Case No. 24-208 Page 2 1 The City served the Special Magistrate's Findings of Fact, Conclusions of Law and Order (dated October 25, 2024) on the Respondent via U.S. Certified Mail, received on November 5, 2024, according to a return receipt. 2. On November 1, 2024, Code Officer Jerrol Coats posted the Order at the Subject Property and at City Hall. The Order required that: l . No later than November 22, 2024, Respondent shall either: i. Remove the installed 5 foot high fence; or ii. Reduce the height of the fence to no more than 4 feet, leaving no unsafe edges; or iii. Submit to the City a complete variance application, together with payment of all required fees, for a fence that exceeds 4 feet in height. If the City's Planning and Zoning Board denies the variance request, Respondent shall have 30 days from receipt of a written order of denial in which to either remove the fence or reduce its height to no more than 4 feet. 2. In addition, Respondent shall confirm her compliance with this Order with a City Code Enforcement Officer. 3. On February 27, 2025, the City served a Notice of Massey Hearing on Respondent via certified United States Mail. A return receipt indicates delivery on March 4, 2024. Officer Coats posted the Notice of Hearing at the Subject Property and at City Hall on March 4, 2024. 4. At the Massey hearing, Code Enforcement Officer Coats presented: a. Photographic evidence of a 5 foot high aluminum picket fence still standing around the perimeter of Subject Property, within 25 feet of the right-of-way, where the fence's maximum height cannot exceed 4 feet; b. Testimony that the fence was installed without a required permit; and Page 2 of 9 Diane Bateson Living Trust Case No. 24-208 Page 3 c. Testimony that an application for a variance is pending, with the application fee submitted, but lacking a survey showing the location of the fence. 5. The Special Magistrate's original Findings of Fact quoted the following sworn testimony of Building Permit Technician Anna Young, who stated: I explained that once her contractor was advised that the City is unable to approve the fence at 5 ft. in height, her contractor requested that the application be canceled. She then stated that MC Fence & Deck moved forward with completing the fence installation at 5 ft., therefore she is going to apply for a permit for the fence. I explained that the fence is in violation of the City Code of Ordinance, as it exceeds 4 ft. in height within 25 ft. of the right of way. I advised her that submitting a permit application for the fence at 5 ft. in height would result in a denial. I also advised that she had previously submitted a request for variance but did not pay for the request for variance. Ms. Bateson advised me that she is keeping the fence at 5 ft. and refuses to pay for the request for variance. She submitted a permit application on October 18th, 2024 for the fence as already installed. (October Special Magistrate's hearing, City Exhibit 4). In his Findings of Fact, the Special Magistrate noted the oppositional and defiant nature of Respondent's assertion to the Building Department that she would keep the fence at 5 ft. and not pay for the variance application. Respondent ultimately cured her failure to pay the application fee. 6. However, the City deemed the variance application incomplete for failure to show the fence's location. Respondent insisted that the application included a survey; however, upon close inspection, the survey did not include the location of any fence, including the one at issue in this code enforcement proceeding. 7. Respondent insisted she needs a 5-foot high fence for her personal security and the security of her property. She testified that a coyote once jumped over the 4-foot fence in the Page 3 of 9 Diane Bateson Living Trust Case No. 24-208 Page 4 backyard. She found beer cans in her backyard and claimed that the 4-foot fence had not stopped all trespasses. She testified that traffic has increased considerably by her house and that she is on a well -trafficked route to the beach. She characterized the fence at issue as aesthetically pleasing. She showed photos of several other properties in the City with 5-foot fences. She presented corroborating testimony from a neighbor, Rick Morrish, concerning the 4-foot backyard fence with respect to nearby topography. However, the backyard fence is not the subject of the code enforcement proceedings. The foregoing testimony and evidence may be more properly submitted at a hearing on an application for a variance for the height of all fencing on her property. The Special Magistrate lacks jurisdiction to grant zoning code variances. Conclusions of Law 1. The City served the Notice of Violation and Notice of Hearing in compliance with Section 2-253 of the City Code and Florida Statutes §§ 162.06 and 162.12. 2. Respondent and the Subject Property remain in violation of the following portions of the City Code: ARTICLE II. - BUILDING CODE Section 82-31. - Florida Building Code adopted. The Florida Building Code 2010 edition, 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. PERMITS [A] 105.1 Required. (F.L.B.C.) Page 4 of 9 Diane Bateson Living Trust Case No. 24-208 Page 5 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 installation of 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. INSPECTIONS [A] 110.1 General. (F.L.B.C.) Construction or work for which a permit is required shall be subject to inspection by the building official and such construction or work shall remain accessible and exposed for inspection purposes until approved. Approval as a result of an inspection shall not be construed to be an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction. Inspections presuming to give authority to violate or cancel the provisions of this code or of other ordinances of the jurisdiction shall not be valid. It shall be the duty of the permit applicant to cause the work to remain accessible and exposed for inspection purposes. Neither the building official nor the jurisdiction shall be liable for expense entailed in the removal or replacement of any material required to allow inspection. 3. In addition, under Section 110-470 of the City Code, "no fence or wall in any side or rear yard shall be over ... four feet in height if within 25 feet of any public right-of-way." The subject fence is within 25 feet of the public right-of-way and the installed fence exceeds 4 feet in height. Based on the foregoing and the Special Magistrate's authority pursuant to Florida Statutes § 162.07 and Article VI, chapter 2 of the City of Cape Canaveral Code of Ordinances, IT IS HEREBY ORDERED AS FOLLOWS: The Special Magistrate imposes a fine in the sum of $100.00 for the first day and $50.00 for each day thereafter that the Subject Property remains in violation after November 22, 2024, the date ordered for compliance. Page 5 of 9 Diane Bateson Living Trust Case No. 24-208 Page 6 2. The accrual of fines is STAYED until June 24, 2025, conditioned on Respondent promptly completing her variance application. The Respondent shall supplement her variance application to the City with a signed survey prepared by a licensed surveyor showing the location of the fence at issue. Respondent shall comply with any other requirements to make the application complete. 3. The City shall serve a Notice of Massey Hearing on Respondent in accordance with Section 2-253 of the City Code and Florida Statutes §§ 162.06 and 162.12 for a further proceeding in this matter on June 24, 2005, or as soon thereafter as it may be scheduled. 4. At the next Special Magistrate's hearing on this matter, the City and Respondent shall inform the Special Magistrate of the status of Respondent's variance application. The Special Magistrate shall enter such further Order as the circumstances may make appropriate, which may include the following scenarios: a. If Respondent completes her variance application as is ordered above, and if the City has granted the variance, then the Special Magistrate shall issue an Order of Dismissal of the code enforcement case; or b. If Respondent completes her variance application as is ordered above, but the City does not grant the variance by June 24, 2025, then fines shall begin accruing on June 24, 2025, unless good cause is demonstrated for an extension of the stay; or c. If Respondent fails to complete her application as is ordered above, then the stay shall be lifted nunc pro tunc, retroactive to original deadline for compliance, Page 6 of 9 Diane Bateson Living Trust Case No. 24-208 Page 7 November 22, 2024. Code enforcement fines shall be deemed to have accrued from that date. 5. Subject to the foregoing, daily fines shall accrue until the Subject Property is brought into full compliance as required by the Special Magistrate's Findings of Fact, Conclusions of Law and Order dated October 25, 2024. The fine shall run in favor of the City of Cape Canaveral. The City of Cape Canaveral has the authority to collect the accrued fines after at least three months has run from the date that this Order, and any subsequently, pertinent Order is recorded in the public records of Brevard County, Florida. 6. In setting the amount of the code enforcement fines established above, the Special Magistrate has considered the factors set forth in Florida Statutes § 162.09(2)(b) and Article VI, section 2-252(c) of the City Code, to wit, (a) The gravity of the violation; (b) Any actions taken by the violator to correct the violation; and (c) Any previous violations committed by the violator. In terms of the gravity of the violation, the installed aluminum fence is aesthetic and not opaque. The City presented no testimony or evidence that the fence is causing any traffic or public safety concerns. Respondent has attempted to come into compliance by submitting the variance application; however, the application was inadvertently incomplete. The City has not presented any history of prior violations by Respondent. Regardless, the fence violates the height restrictions of the City Code. The City was within its right to legislatively establish an aesthetic and public safety standard and limit fence heights in its own City Code. 7. Any accruing fines on the Subject Property, upon the City's recording in the official records of Brevard County, shall become a lien in favor of the City on the Subject Property and Page 7 of 9 Diane Bateson Living Trust Case No. 24-208 Page 8 upon any other real or personal property of the Respondent, pursuant to Section 2-252(e) of the City Code and Florida Statutes § 162.09(3). 8. 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 of its costs, including a reasonable attorney's fee, pursuant to Florida Statutes § 162.10. A CERTIFIED COPY OF THIS ORDER WILL BE RECORDED IN THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA, AND PURSUANT TO FLORIDA STATUTES § 162.09, WILL BE A LIEN AGAINST THE RESPONDENT'S REAL PROPERTY THAT IS THE SUBJECT OF THIS ORDER AND MAY BE ENFORCED AS A LIEN EXCEPT FOR HOMESTEAD PROPERTY AND AGAINST ANY OTHER REAL OR PERSONAL PROPERTY OWNED BY THE RESPONDENT. DONE AND ORDERED at Cape Canaveral, Florida, effective on the 25th day of March 2025. 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 o this �, S} day of MQX Gh , 202�y Ric and S. Geller. Said person (check one) 2 is personally known to me, produced a driver's license (issued by a state of the United States) as identification, or ❑ produced other identification, to wit: ERLY JA4 aO.p,RyPU F•F; (: ffix Notary Seal) MY�p Notary Public - State of Florida • EXPIRES j �JSS�� 8 SIP, �F' ���\p,��s`°r Page 8 of 9 �'UMBEaH N�` Diane Bateson Living Trust Case No. 24-208 Page 9 CERTIFICATE OF SERVICE l I hereby certify that, on this i day of , 2025, I furnished a true and correct copy of the above and foregoing Findings of Fact, Conclusions of Law, and Order to Respondent by regular and certified mail to Diane D. Bateson Living Trust, 8801 Sea Shell Ln., Cape Canaveral, Florida 32920, and by posting a copy at the Subject Property and at City Hall. Co e Enforcement Officer S:1ASG\CLIENTS\Cape Canaveral, City of\Special Magistrate Services C761-25271\Hearings\Hearings 2025\March 25, 2025\Order (Massey) Imposing Fines and Lien - Diane Beteson Living Trust - rsg - 3 26 25.docx Page 9 of 9 CERTIFICATION STATE OF FLORIDA COUNTY OF BREVARD CITY OF CAPE CANAVERAL I, Esther Coulson, do hereby certify the attached copy of the ORDER IMPOSING FINES AND LIENS, Case No. 24-208 from the Special Magistrate Hearing, City of Cape Canaveral, on March 25, 2025, the City of Cape Canaveral v Diane D. Bateson, 8801 Sea Shell Lane, Cape Canaveral, FL 32920, is a true and correct photocopy of the City's record copy. By my hand and the official seal of the City of Cape Canaveral on this 121h day of May, 2025. Esther Coulson City Clerk �GPQE CANS SEAL c '�5� ®..Z)WET;