Office of MANATEE COUNTY ATTORNEY

Transcription

1 Office of MANATEE COUNTY ATTORNEY Mitchell 0. Palmer, County Attorney * MEMORANDUM James A. Minix, Chief Assistant County Attorney Maureen S. Sikora, Assistant County Attorney** Robert M. Eschenfelder, Assistant County Attorney Rodney C. Wade, Assistant County Attorney William E. Clague, Assistant County Attorney James R. Cooney, Assistant County Attorney Sarah A. Schenk, Assistant County Attorney** DATE: TO: THRU: FROM: RE: John A. Barnott, Director Mitchell 0. Palmer, County Attorney {Vl 0 f ~ J j -]0 ""/~ Maureen S. Sikora, Assistant County A~;1Md) Construction Permit Number Property Located at 2008 Illinois Avenue, Bradenton Trailer Estates Park and Recreation District During the Board of County Commissioners meetings held September 6 and September 11, 2012, citizens addressed the Commission regarding a building permit for a shed in Trailer Estates Mobile Home Park. The discussion raised questions relating to whether the County may withhold or deny building permits for structures located in Trailer Estates which do not comply with the deed restrictions. Following the Board meetings, the County Attorney's Office met with representatives from the Building and Development Services Department, reviewed the documents submitted for the permit, and researched legal issues concerning the authority of local governments to approve or deny construction permits. For the reasons explained in this memorandum, this office has determined that the subject building permit was properly issued by the County, and that the Building Division was not obligated to account for (1) the issuance (or lack thereof) of a separate permit or approval ofthe proposed structure by the Trailer Estates Park and Recreation District or (2) the conformity (or lack thereof) of the proposed structure with the architectural standards of the Trailer Estates Mobile Home Park. First, the building permit informs the land owner that additional restrictions may apply to the property which are located in the public records of Manatee County and additional permits may be necessary from other governmental entities. According to the above-referenced permit, the description of work involves erection of four walls (two exterior and two interior) to make a storage area using existing concrete and existing roof. The Manatee County Construction Permit, a copy of which is attached, also contains the following language: NOTICE: In addition to the requirements of this permit, there may be *Board Certified in Construction Law Board Certified in City, County & Local Government Law 1112 Manatee Avenue West, Suite 969, P.O. Box 1000, Bradenton, FL (941) Fax (941)

2 John A. Bamott, Director Page 2 additional restrictions applicable to this property that may be found in the public records of this county, and there may be additional permits required from other governmental entities such as water management districts, state agencies, or federal agencies. Section (1 0), Florida Statutes (20 11 ), and Section of the 2010 Florida Building Code prohibit an enforcing authority like Manatee County from issuing a building permit unless such statement either appears on its face or is attached to the permit. The purpose of this notice is to inform land owners about deed restrictions recorded in the public records that may apply to their property as well as additional permits they may need to obtain from other governmental agencies. Second, an application for a construction permit that complies with the Florida Building Code and other relevant codes and ordinances must be approved. Prior to issuance of a building permit, the plans and specifications required by the Florida Building Code must be reviewed for conformance with the Florida Building Code and, if applicable, the Florida Fire Prevention Code and Life Safety Code (2), Fla. Stat. (2011). A permit must be issued when the plans and specifications comply with the provisions of the appropriate codes. Id. In addition, Section , Florida Statutes (20 11 ), imposes time deadlines on review of applications for completeness and on approval or denial of applications for building permits. Sections l and of the 2010 Florida Building Code require the building official to examine the permit applications and construction documents and ascertain whether they meet the requirements of the building code and other pertinent laws or ordinances. Permits are reviewed for consistency with the Manatee County Code ofordinances and Land Development Code, including zoning regulations such as use, setbacks and height. However, nothing in the Florida Statutes or the Florida Building Code lists deed restrictions or restrictive covenants among the criteria for building permits. Neither restrictions of record nor covenants justify refusal or denial of a construction permit. 9A McQuillan Mun. Corp. 26:231 (3d ed.). Section l 05.3.l of the 20 l 0 Florida Building Code requires the building official to issue a permit as soon as practicable if the proposed work conforms to the building code and other applicable laws and ordinances. When a person has a clear legal right to a building permit under the laws and regulations in effect at the time of application, an action for mandamus may be filed to compel the issuance of such permit. See Dade County v. Jason, 278 So. 2d 311 (Fla. 3d DCA 1973); City of Miami Beach v. Jonathon Corp., 238 So. 2d 516 (Fla. 3d DCA 1970); City of West Palm Beach v. State ex rei. Duffy, 30 So. 2d 491 (Fla. 1947). A party may in certain circumstances acquire a vested property right in a building permit under Florida law, enforceable by an action filed pursuant to 42 U.S.C Hy Kom Development Co. v. Manatee County, 837 F. Supp (M.D. Fla. 1993). The documents for the subject permit include a single page signed by an employee of Manatee County Permitting Department with the following statement: PLEASE BE AWARE YOU MUST HAVE AN APPROVAL LETTER FOR ALL CONDOS AND MOBILE HOME PARKS FOR ALL PERMITS EXCEPT A/C AND ELECTRIC

3 John A. Barnett, Director Page 3 A copy of the document in question is attached to this memorandum. The approval letter referenced in this document is not required for issuance of a permit by the Florida Statutes, Florida Building Code, Manatee County Code of Ordinances, or Manatee County Land Development Code. While the document provides additional information about potential regulations, imposing a requirement for approval by a condominium or mobile home park as a condition for receipt of a building permit could expose the County to liability. Third, Manatee County has no legal authority or standing to enforce deed restrictions or restrictive covenants in Trailer Estates or any other community. Trailer Estates Park and Recreation District is an independent special taxing district created by Chapter , Laws of Florida, and established pursuant to Chapter 189, Florida Statutes. The district is governed by a board of nine trustees elected by owners of real property located within the district boundaries. Ch , 3, 5, Laws of Fla. Among the powers of the trustees enumerated in Section 15 of Chapter are the following: (i) To use district funds in the administration and enforcement of the deed restriction as filed in the Manatee County public records for properties within the district. U) To recover all costs and reasonable attorney's fees in addition to other appropriate relief should the trustees be the prevailing party in any litigation, and in any appellate proceedings, involving the enforcement of this act and/or the deed restrictions as filed in the Manatee County public records. The law establishing Trailer Estates Park and Recreation District authorizes the governing body of the special district with jurisdiction over the mobile home park, not Manatee County, to enforce the deed restrictions and to recover attorney's fees in any litigation incurred for such enforcement. Each development (mobile home park, condominium or subdivision) in the County may be controlled by regulations recorded in the public records as deed restrictions or restrictive covenants. These regulations may be enforced through private legal actions by an association or by individuals who own land situated in the development. Under certain conditions, community development districts may adopt and enforce deed restrictions pertaining to the use and operation of real property within the district and outside the district ( 4 ), Fla. Stat. (20 11 ). Manatee County does not have the legal right to enforce such covenants and restrictions or to spend county funds for such private purposes, regardless of the powers granted to a special district like Trailer Estates or a COD. Furthermore, the deed restrictions and restrictive covenants differ in each development. The regulations may be amended by the association, ambiguous regulations may be construed by the courts, and outdated regulations may expire. Manatee County staff cannot monitor the covenants and restrictions in effect within each development to determine which may apply to a particular permit at any given time. If we can provide any additional assistance or answer any questions, please do not hesitate to contact us.

4 John A. Barnott, Director Page 4 Attachments cc: Board of County Commissioners Ed Hunzeker, County Administrator C.J. Dupre, Building Official, Cindi Blake, Permitting Services Division Manager,

5 MANATEE COUNTY CONSTRUCTION PERMIT 1112 Manatee Avenue West Bradenton, Florida /21/2012 Permit Number Project Address: 2008 ILLINOIS AVE Type of Permit: RESIDENTIAL - ALT/ADD Setbacks CFeet): Front-5 Rear-5 **Subdivision: TRAILER ESTATES CTD PB9/61 Left-5 SCT Right-5 **OWNER INFORMATION** Owner: LEW, IRA E Address: City: PO BOX 6624 BRADENTON State: Zip= FL Phone: **CONTRACTOR INFORMATION** Contractor: LEW, IRA E License No: OWNER Lie. Type : DBA: Address: C/S/Z: Telephone: LEW, IRA E PO BOX 6624 BRADENTON, FL **PARCEL INFORMATION** Parcel ID No: Sec Twn Rge: 522 T35S R17E LOT: 25 Black: 32 Floor Elev: Impact Area: ASW Zoning: RSMH6 Overlay: NONE/NONE Flood Zone: A15 Flood Eleva: 13.0 Fire District: TEFD **PROJECT INFORMATION** Square Footage: 100 Declared Value: 500 **PROJECT INFORMATION/NOTES/CONDITIONS** FLTPO: 4 WALLS TO MAKE STORAGE AREA/ EXIST CONC AND EXIST ROOF 100SI FLOOD VENTS LOT 25/ TRLR ESTATES *************************************************************************** NOTICE: In addition to the requirements of this permit, there may be additional restrictions applicable to this property that may be found in the public records of this county, and there may be additional permits required from other governmental entities such as water management districts, state agencies, or federal agencies. FAILURE TO COMPLY WITH THE MECHANICS' LIEN LAW CAN RESULT IN THE PROPERTY OWNER PAYING TWICE FOR BUILDING IMPROVEMENTS. This permit shall become void if work has not started within six months from the above date, or if work has been suspended longer than six months. *************************************************************************** BUILDING DEPARTMENT MANATEE COUNTY, FLORIDA INSPECTION REQUEST :? PERMITTING FAX: Permit issued by: ~p_h_a_r_n_e_s s~~~~~~ Representative of: Carroll J. Dupre, CBO County Building Official CALL BEFORE YOU DIG: TO RETRIEVE BUILDING PERMIT DATA AND DOWNLOAD BUILDING DEPARTMENT FORMS 60 TO: I~.!

6 MANATEE COUNTY BUILDING & DEVELOPMENT SERVICES 1112 MANATEE AVE. W. 4th FLOOR P.O BOX 1000 BRADENTON, FL 34l PLEASE BE AWARE YOU MUST HAVE AN APPROVAL LETTER FOR ALL CONDOS AND MOBILE HOME PARKS FOR ALL PERMITS EXCEPliA/C AND ELECTRIC '. J/lc,. I ''Uf~~- \... ' ~ I 'i I I : ~I I '