Code Notice...A Cautionary Tale





I recently had dealings with our code enforcement department. After review, I thought it would potentially be helpfully to others to share my experience... as a cautionary tale.  Now, before I begin, let me go on record stating that I have been an advocate for strengthening our codes for years. Mostly in the area of visual blight issues. So, the encounter you’ll read below is not born out of being “anti-code,” but moreover a description of the questionable performance of our code department in addressing a resident over what looks to be a misguided action.

 

On January 11, 2016: I received a visit from our code officer Reggie White. He handed me a courtesy notice along with one sheet of paper citing “part” of our muni code referring to fences and walls.  For those of you who are not familiar with my property, I have included two photos of the area and the concrete block wall in question. See below:  

As you can see, I have no neighbors on either side and the adjoining parcels are considered green spaces.  The alleged violation was, and I quote, “Please paint the entire wall the same color as your house. Also, please repair broken area of the wall in back of your house and leave a smooth finish or texture on both faces of the wall.”  I proceeded to question him on the color and the texture demands, (i.e. grandfather rule) as I’ve never heard of such a thing and the wall has been white and maintained the same finish or texture since it was built in 1948. He stated that he’d need to further look into that and get back to me.

After this meeting I myself looked up the entirety of our code addressing fences and walls and sent him the following email:

From: Gmail [mailto:miltonhunter@gmail.com]
Sent: Tuesday, January 12, 2016 9:35 AM
To: code@biscayneparkfl.gov
Subject: Follow up

Good morning Reggie,

Pursuant to our visit yesterday I have a couple of questions. The one page you provided me with didn't reflect the entirety of the muni code, specifically Article 11.6.6 addressing Nonconforming fences and walls. I have included this below for your review:

BP Muni code: Fences

·         11.6.6

Nonconforming fences and walls. Any fence or wall which has been properly permitted and approved by the village prior to the passage of Ordinance No. 2011-2, or which existed prior to Ordinance No. 24 (S. 1988) and which does not comply with the requirements of this ordinance, shall be considered a legal, nonconforming structure. Such nonconforming fence or wall may be continued until such fence or wall has deteriorated to the extent of more than twenty-five (25) percent of the structure or has been damaged by more than fifty (50) percent of the structure. 

My exterior concreate block wall is (to the best of my knowledge) original construction and was allegedly properly permitted and approved by the Village at that time, date 1948. I have a photograph circa 1968 which illustrates that the wall was and has maintained to be white in color. So, my understanding is that it would fall into the above category.

My questions are as follows:

1.      You highlighted section 11.6.3 (b) (ii) "Concrete block is to be stuccoed with a smooth stucco finish or texture on all faces that reflects compatibility with the finish of the dwelling. Walls constructed of decorative masonry units shall be of a uniform type and color.  Any exterior finish I believe is covered under section 11.6.6- see above.

2.      Where in our code did you find the language of having to change the color of an established structure that pre-dates Ordinance 2011-2 and No. 24 (S.1988)? I believe that this is a grandfathered issue covered under the legal nonconforming fence and wall ordinance.
 

I will wait for answers to these questions.

Best,

Milton Hunter

646 NE 114 St.

I then made a call to a member of our Planning and Zoning board to get another opinion on all of this. And to my surprise, he had already gotten a call from Reggie also seeking council and his opinion on the situation. What I found odd was why was our code officer calling a member of the P&Z board for advice? Where was his immediate supervisor or other staff support members?                                                        

On January 13^th: I received a “new and amended” courtesy notice. [ASIDE] there were no answers provided to me concerning the questions posed in my email from the day before [END ASIDE] It read: “Please repair and paint the wall that borders your house. The entire wall must be re-painted to a color that is compatible in relation to the dwelling/house. Also, all rot and cracks must be properly repaired on the wall. The wall must be straight and have a smooth stucco finish on both sides.”  

Oof, now I’m getting really confused… and begin to question what, or who is really behind this. So now it’s not “the same color of your house” but a “compatible” color. Also, his tone seems to be more aggressive.

Let’s pause a moment and take a look back at the pictures provided above. You’ll see that my house trim is white and the condition of the paint on my wall.   

Further, there is no “rot” present (not sure where that came from) and Reggie seemingly continues to ignore the language of Section 11.6.6 -Nonconforming fences and walls.  As well, I’m not so sure that our code officer is tasked with giving an opinion on what is a compatible color or not. Don’t we already have a board for this when first getting colors approved? And by the way, white is on their pre-approved color list. 

Moving along, I scheduled for the repair to be done. After the repaired areas had cured, I touched them up with white paint and, for my part, was willing to call it a day on all of this.

Below are the before and after pictures of the wall repair in the back:

 

However, the Village had other plans as on February 17^th, I received a Notice of Violation and Notice of Hearing. And the nature of the alleged violation: “The wall is not of compatible design and color in relation to the dwelling. Concreate block is not stuccoed with a smooth finish or texture on all faces that reflects compatibility with the finish of the dwelling.”

Really?  Once again I’ll state that the wall “pre-dates” ordinance 2011-12 and ordinance 24 (1988) and as such is a legal non-conforming structure. It’s completely straightforward. My thinking is now WHY our code officer (or whoever is truly pushing this action) continues to press the issue and WHY is this relevant section of our code continually being ignored?

February 29th: Next I find yet another courtesy notice taped to my front entranceway. The house number was incorrect but you know, it seemed fitting based on the absurdity of this entire ordeal so far.  It read: “Please apply for and obtain a paint permit for the wall on the property.” (This being for the touch up painting I did to the repaired area).

I had 48 hours to comply.  (Which I elected not to do as I was prepared to take this matter up in front of the Code Compliance board on March 14^th)

At this stage I gathered up all of my paperwork, photos and was awaiting the Code Hearing date of March 14^th.  Here I would be able to make my case and seek an objective decision from the board. 
 

Yet on March 8^th I received an email from our code officer stating “I brought the wall issue to the manager’s attention yesterday and we both agreed that the repairs done was enough to be in compliance. There will also be no violation for painting the wall without a permit. I’m going to close the case and note that you are in compliance. I’ll send you and affidavit of compliance in the mail shortly.”

So neighbors, what to make of all of this? There are so many questions to consider…was this a case of our code officer simply not knowing or understanding the code in question? Or is this a case of “selective enforcement?” It is this type of situation that leads residents to feel singled out and does more harm than good for our community.

Personally I have a hard time trying to write this off as a simple “mistake” due to me pointing out and verbally explaining the relevant section of our code (Section 11.6.6) to Reggie… on Day 2.

And if indeed it is the latter, then we have an altogether different problem. And one much larger than one resident’s ordeal with the missteps of our code department. The question now becomes WHO was behind this and WHY was it allowed to persist for nearly two months?

Consider this:

·         Where was the oversight by our Manager or department supervisor?

·         What training has been provided (or will be provided) for our code officer to alleviate embarrassments such as this one from occurring again?

·         Why was our code officer seeking direction from a P&Z member (or others) not associated directly with his department? 

·         Why was the citation(s) dismissed and closed by the Code Officer together with the Manager rather than coming before the Board for a vote which is the usual procedure even when cases are dismissed and closed?

·          How much Village time and money were ultimately wasted on this failed aborted Village action?

Why would the Village drop the case less than 1 week before the hearing date? Was I really now in compliance? After all, I did not fulfil the multiple demands made of repainting the entire wall (whatever the color) nor in resurfacing the texture or straightening the back wall section. All of these points were stubbornly defended without consideration or explanation up until March 8^th.

To be clear, no resident should have to put up with two months of badgering - especially after doing the research and providing the documentation from our Code of Ordinances showing this citation was not warranted.  Code Enforcement is too important to our Village for anyone to receive a citation out of ignorance or lack of research on the part of staff. 

March 14^th: As I had not yet received the affidavit of compliance in the mail (and my trust in this department is suspect at this point) I attended the meeting with all of my support documentations. You know, just in case. And as advertised, my case was scrubbed from the agenda. As if it never existed in the first place...

Interesting enough however is that there was another case mentioned where a work related repair area would require re-painting. The board and code officer seemingly routinely agreed that no paint permit would be required…Hmm… but this was done in front of the board, not behind closed doors.

So, two months later what was the purpose of all of this? For me, it seems obvious that additional training and oversight for this department needs to be put into place as the current administration is flawed.

The point of me making this information public is twofold. One is to illustrate the inner workings of the department and to clarify the mistakes that were made. There needs to be some form of accountability for the actions taken. Secondly, to inform all of our readers to do your own independent homework and to question courtesy notices that don’t make sense to you. Mistakes can be made… as observed herein.

 

Standing Watch,

Milton Hunter- The Biscayne Parker