Minutes for January 12,
2007
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DRAFT
Board of Trustees
Workshop Including ARCC & Violations Committee
Friday, January 12, 2007
1:00 p.m. – Building D&E
The Barefoot Bay Recreation District held a workshop on January 12, 2007 in Building D&E, Barefoot Bay, Florida. Chairman Harry Bailey called the meeting to order at 1:00 p.m.
Mr. Bailey led the pledge of Allegiance to the flag.
Mary Firlein, Arlene Maguire, Ann Petrovich, M. Joy Liddy, and Julius Santa Maria represented the Violations Committee.
Ken Austin, Paul Ingardia, Thelma Gruseck, and Leslie Kadlec represented Code Enforcement.
Dick Gee, Robin Phillips and Thelma Gruseck represented the ARCC.
[The tape went blank between Counter #01 & 02. It resumed at 31.]
Mr. Torpy: I don’t need to repeat the history of how many opportunities Barefoot Bay has given for property owners to do that. We are now in January 2007. Mr. Torpy felt this workshop was important regarding the changeover in the Board of Trustees and the changeover in Administration. It’s important for “this” group sitting around “this” table to be on the same page regarding Code Enforcement and the Deed of Restrictions. Enforcement of the Deed of Restrictions in Barefoot Bay is not optional. Local governments with local codes have the right to grant variances. A Deed of Restrictions can be amended, requiring a vote of the citizenry of Barefoot Bay, from time to time. The Deed of Restrictions as adopted and amended, and in force, must be complied with.
Mr. Torpy commented back in October 2006 there were an estimated 150 homes that were still not in compliance from the 2004 hurricanes. The Board adopted a policy then to instruct Mr. Austin’s department to make sure those individuals were notified that they were in violation. This month was the “drop dead” deadline to accomplish one of two things: A. be in compliance; B. produce proof of having hired a contractor that would bring them into compliance in another 90 days from today.
Ken Austin commented there are now approximately 30 – 50 homes that still need to be brought into compliance. A few have been brought to the Violations Committee. Completion dates are into February. Code is working on the cases that still need to come before the Violations Committee.
Mr. Torpy’s first question is, “What does the Board want to do?” Mr. Torpy commented his first concern is that the Board stays on top of these issues. It’s a lose-lose situation from a financial standpoint. Suing the non-compliant, if they don’t have the money, is not going to accomplish anything except large liens, and possible foreclosing on homes the Bay doesn’t want to own. The real issue is folks who might have chosen not to find the finances to fix their property until they found out the Bay was serious.
Mr. Austin commented that many of the situations Mr. Torpy mentioned are already being fined for violations. Those properties may be open to litigation. There are varying reasons the “other 40” homes have not been brought forward. Several have a manufacturing defect in the home that is not the fault of the property owner, but because of which they cannot obtain a County permit to build carports and other add-ons until the issue is resolved. There have also been reductions in Code Enforcement staff.
Mr. Bailey asked for the Board’s pleasure regarding the remaining 30-50 homes under discussion. Mr. Torpy responded “the process” had been very fluid over the last two and a half years. His understanding is that there are 90 cases to be brought before the Violations Committee, some that are currently being fined, and some that have not been started yet. The objective is to whittle the process down to the folks who, for some reason, “just can’t get there” [into compliance]. There was a detailed cost analysis for bringing these cases to litigation. Mr. Torpy said his goal was to bring to litigation only those cases that will in no way come into compliance any other way.
Ms. McCahan commented some of these property owners literally don’t have any money. Others are literally refusing to come into compliance, going so far as to use the insurance money for other things than repairs. She asked if a short “reminder letter” would help. Mr. Torpy responded that if there was any one “out there” who was not aware that Barefoot Bay was planning to take serious enforcement action at this point, they must not have lived in the state of Florida. The Board meeting of January 2005 set the compliance date as July 2006, then September 2006. A letter was sent to everyone who was not in compliance detailing those dates [under the direction of Mr. Bolon who was Chair at the time]. Mr. Austin said that at one time or another each property not currently in compliance have had permits. As the permits expire, if the work isn’t done they are forwarded to the Violations Committee. Mr. Austin concurred that those cases that are “highly unlikely in the extreme” to come into compliance should be sent to litigation. There are 5 or 10 of those. Mr. Torpy commented that a letter from the legal office to each case not in compliance might forestall having to actually go to court. A letter would involve minimal expense. Mr. Austin commented some of the 15-17 cases that were turned over to Mr. Torpy’s office paid their fines as soon as the preliminary letter was sent out. Ms. Weglein asked how many homes were affected by the manufacturing defect. Mr. Austin identified four. Mr. Torpy commented there is a group of engineers who identified wind load requirements for mobile homes; their board convened in 2006 and changed the rules substantially. “A stroke of the pen” caused many building codes to become obsolete and no longer accepted in the permit process. Mr. Santa Maria commented the Violations Committee tabled those cases affected by the manufacturing defect until the problem is fixed.
Mr. Allan asked if any of the cases incurring fines had hit certain thresholds, say $5,000 or $10,000. Mr. Austin replied there was one property over $100,000. Mr. Allan suggested a dollar threshold on fines, and after that they should be sent to Mr. Torpy. Mr. Allan surmised the Violations Committee imposed a $250 a day fine when the resident appeared to be ignoring every other effort to get them to comply? Mr. Austin replied that at one time the Violations Committee routinely assigned the $250 fine until discussions with the legal office advised them the object was compliance, not making money on fines. Mr. Torpy commented a fine is a last resort to bring people into compliance; at $250 a day, within a month the average person was forced into not complying. Mr. Allan asked if even at $50 a day fines accrued to significant sums. Mr. Austin replied that they did. Mr. Allan suggested a certain dollar amount be chosen that triggers the litigation process. Mr. Austin concurred that Mr. Allan’s suggestion would result in a very cut and dried process. However, there are “all kinds of different situations out there” which Code Enforcement becomes aware of. In the regular meeting it will be brought forward that in one case there were very serious medical issues involved. When the medical condition was cleared up, within two weeks the property was in compliance. This resulted in a petition for reduction of fines based on special circumstances. Mr. Austin feels that between the Community Manager and himself the cases that should go to litigation will be chosen and given to Mr. Torpy’s office.
Mr. Torpy commented “this becomes the great debate”. Certainly Code Enforcement is about enforcement and compassion. “ I do not believe the decision not to enforce is left with staff ever.” In a public body, the rest of the citizens “out there” don’t know all the facts that [Ken] may know or that [Grace] may know. All they know is someone is not being brought into compliance. Set a minimum threshold. Bring the exceptions to the Board with reasons. Let the Board decide on policy; that brings it into the public arena, and then [we’re] “good to go”. Staff is not subjected to making policy decisions, and the public is not subjected to not knowing why things are not being done. Those kinds of decisions are vested with the Board.
Ms. Liddy commented when the Violations Committee began doing the fines it was to grab the intention of the people who were not complying. In doing that we have also caused ourselves a can of worms”. Is there a chance for amnesty for those who wish to come into compliance but can’t because of the fine? She concurred the objective is to get the Bay back in order, not to chase people out of their homes or to make money off them. Mr. Torpy commented that cases with a fine issue could petition for a reduction; that process is in place already. But compliance is still mandatory.
Mr. Bleau concurred that Mr. Austin has brought many cases before the Board for just that reason. And some of the fines have been reduced as a result. Mr. Torpy responded the “hard case folks” have been given so many opportunities at this point, literally two and a half years, that some of them have come into compliance and [we’re] down to the folks who simply can’t afford it. Before the Bay spends a bunch of money on lawsuits, if there’s a last ditch effort that will reach a few more of them, it’s worth the letter and the opportunity.
Ms. Donahue concurred with the idea of amnesty if compliance could be achieved within 30 days and fines would go away. She said some residents have simply given up hope.
Mr. Torpy suggested the Board formulate a resolution out of today’s workshop to keep current policies documented and “move forward”.
Mr. Allan commented anyone can come to the Board and appeal their fines. If the Board were to consider amnesty, it would also have to be realistic. 90 days as a timeline to come into compliance is more realistic than 30 days [to get permits, arrange details, etc.) Mr. Torpy said the market [for contractors] right now is slow; anyone could produce evidence of progress to Code Enforcement within 30 days. Mr. Allan is concerned with the people who got permits, then let them lapse. If compliance had to be achieved in 90 days or a lawsuit commences, more people would respond to the seriousness of it.
Ms. McCahan asked Ms. Gruseck [Thelma] if she thought it was true that giving people another 90 days in the interests of amnesty would get more of them into compliance. Ms. Gruseck explained that an affidavit of hearing finding, a letter of how to appeal, and how to petition for reduction of fines is sent to the respondent. Within that set-up, which allows for a long period of time, some people still don’t respond to compliance efforts. Ms. McCahan commented the current discussion is redundant; Code Enforcement is already doing it. Mr. Torpy commented that in actuality some form of amnesty is already in effect. When the letter goes out on legal letterhead, half of the cases will be scrambling and asking “how do we fix this problem?” Historically, statistically, this is what happens in normal cases. The cases we’re dealing with here are not normal. These are the people, in his opinion, who simply can’t do it. It’s sad, it’s unfortunate, but some people because of the hurricanes of 2004 financially lost the ability to stay in Barefoot Bay.
Mr. Bailey suggested the discussion be moved to the meeting after the workshop and resolved with definitive action as to what the Board as a whole wants to do. Mr. Torpy felt that a comprehensive motion would not be possible at the regular meeting. He suggested his office create a resolution that encapsulates the direction of the workshop to be presented at the Board meeting on January 23rd. He asked Mr. Malek if the resolution could be formulated by then and brought before the Board for review. Mr. Torpy commented it would be sent out “next week” in order for the Board members to look at it. Robin Phillips, of the ARCC, commented a County permit alone takes anywhere from 4 to 6 weeks to get. ARCC permits are faster, but residents need both. Mr. Torpy said he is more concerned about the contract with the contractor. Ms. Gruseck explained many of the residents are performing the repairs themselves, and would not be contracting with anyone. They would also be pulling their own permits. Mr. Torpy’s said his “bias” was going to show in this instance. Perhaps the owner/contractors need to prove they’ve applied for permits within 30 days. Mr. Allan commented $5,000 is $50 for 100 days. Ms. Weglein asked Mr. Austin to provide the amount of fines involved in the 40-50 homes under discussion and present it at the January 23rd meeting. Mr. Torpy said his office would work with Mr. Austin’s office to “get an idea” of what they are. Mr. Santa Maria asked Mr. Torpy if it were within the purview of the Violations Committee to ascertain truthfulness when a resident comes before them and says “I can’t afford it.” Mr. Torpy said inability to pay is not a legal reason not to comply with the Deed of Restrictions. [You] live in a deed restricted community. If you can’t afford to put a porch on your home, then move and let someone else do it. It’s not discretionary. There is no reason for the Violations Committee to ascertain whether they can pay or not.
Ms. Donahue asked if a lien just “sits there” until the house is sold? Mr. Torpy replied there are certain injunctions and contemptibilities that can come into play to make them do the work to come into compliance.
Ms. McCahan commented a perception has been brought forth that the 40-50 cases have not been pursued because of a reduction in staff. This inference is not correct. Some of the cases are older than 4 weeks. There must be some other reason these case have not been brought forward other than the reason Dottie wasn’t there. Mr. Austin responded that prior to this month, there were 12 cases, and before that 39 cases were presented to the Violations Committee. So far 20 cases will be presented in February. Staff cannot handle 40 cases a month. Ms. McCahan suggested perhaps a second Violations Committee meeting might resolve the problem. Mr. Austin commented the Violations Committee handles 40 cases “quite well”. The paperwork preparing a case and the paperwork after the fact is the bottleneck.
Ms. Weglein commented the ARCC has been investigating the Hardi-Board issue. Ms. Phillips has obtained samples from the manufacturer. Ms. Weglein stressed Hardi-Board is versatile and worth considering under “other approved materials”. There are problems with fencing for individual pools in the Bay. County and State regulations say 4 foot. The gate must be 5 feet. Mr. Torpy contends if a 4 yr old child can climb a chain link fence, they usually can swim as well. The issue of the 4 foot fence is that Florida leads the nation in child drownings and Ms. Weglein would like to see the Deed of Restrictions amended to allow higher fences for individual pools. She urged the Board to take up the issue of amending the Deed of Restrictions and getting it out properly to the people.
Mr. Torpy suggested Ms. Weglein’s concerns be taken up at a subsequent meeting or another workshop in order to give the other Board members opportunity to prepare. Ms. Weglein created a list of items to be discussed. Mr. Austin commented a number of violations are ‘on hold” as far as fining them until the Deed of Restrictions has been amended. Ms. McCahan commented that is on the agenda for today: Rob’s envelope idea and her concern over the vinyl fencing being acceptable along with the chain link. Ms. Weglein said it has to be worded so vinyl fencing could be used around individual pools where screen enclosures are not feasible because of “wind tunnels”. The lattice fencing allows air to pass through, not only for the property owner, but for surrounding areas.
The Board concurred with scheduling a workshop to discuss the next DOR mailing.
Mr. Gee commented the DOR says the satellite dishes will be installed in the back yard, or any location where they are not directly visible from the street. Ms. Weglein replied the ARCC is not issuing permits any longer for satellite dishes because the FCC says the ARCC has no authority to issue such permits. The installers want to place the dishes where it’s easiest for them and often they insist the place for the best reception is in the front of the house. This is a real problem and conflicts with the DOR.
The Board concurred. The work shop was adjourned at 2:06. Mr. Bailey granted a 15 minute break before beginning the regular portion of the Board of Trustees meeting.
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