Tougher Code Penalties Divide Wellington Council

The decision to deny developers building permits if they have open code enforcement cases divided the Wellington Village Council on Tuesday night.

In a 3-2 decision, council members pushed the ordinance forward but asked staff to look into its legality before its final reading. Florida state law may require construction permits to be issued if a project complies with building codes.

Councilwoman Anne Gerwig and Councilman Howard Coates dissented, asking for the item to be tabled while the issue is discussed.

“We don’t have the ability to supersede state law,” Gerwig said. “If we’re going to be pre-empted from doing this, I’d rather know now.”

The ordinance is an attempt by Wellington to prevent property owners with outstanding code violations from getting building permits or project approvals. In the past, council members have expressed frustration, mostly with larger developers, who they say have ignored code violations with no penalty.

Growth Management Director Bob Basehart told council members that the change in the code would allow Wellington to not issue permits or even suspend permits on property where there are outstanding violations. He stressed that a violation means the issue has already gone before the special magistrate.

“It’s only if the special magistrate has already ruled,” Basehart said. “There is no suspension of permits or refusal to issue permits on cases that are pending.”

But if the special magistrate has ruled the property in violation, Wellington could suspend permits and not allow the property to be used.

“No activity could occur until the violation is resolved,” Basehart said.

Gerwig said she read the Florida statutes about permitting, which says the village has to issue a permit if the property meets state building codes.

“Do you know anything about that?” she asked Village Attorney Laurie Cohen.

Cohen said she did not. “I can look it up before second reading,” she said.

Wellington has already considered what would happen if an appeal was filed for a violation, Cohen said.

“If the decision turns out to be reversed, there was a concern that we could be denying the individual the right to use their property [during the appeals process],” she said. “We can solve that by allowing the property owner to file a motion to stay, submit a bond for all the corrective work, and then they can get permits and the village can continue with the process.”

Gerwig said she believes the law will have a far-reaching effect, especially on plazas that house small businesses that may not have control over the issue.

“The code violations may not be the fault of a particular person,” she said. “If they need to pull permits to make improvements on another part of the property, they could be denied.”

Further, she said Wellington already has measures to recoup costs and enforce codes.

“We have significant fines that build daily,” she said. “We have a process for [putting a lien on] the property. We have a process for getting that money.”

Gerwig said the ordinance appears to be aimed at one or two people in particular that some council members take issue with.

“I’m tired of this council looking at ways to get back at one or two people, because you’re catching everyone else in the process,” she said. “This, to me, looks like we’re overreaching. We’re using a hammer to do something I think is inappropriate, and I think it sends the wrong message to people who are interested in redeveloping this area.”

If council members want to help the community, they should focus on blighted areas where there are homes that have many violations that have gone unaddressed, Gerwig said.

During public comment, attorney Dan Rosenbaum spoke on behalf of Equestrian Sport Productions. He said the issue is “far-reaching” for a local government.

“I don’t believe the authority rests on the village council to adopt something this far-reaching,” he said. “This is beyond anything I’ve ever seen.”

Often code issues are a matter of a difference of opinion, and Rosenbaum said this law would allow a minor issue to hold up major development.

“If the magistrate is wrong and we’re in the middle of a $20 million development project, you could hold it up,” he said. “If the bank defaults because we haven’t gotten the necessary permits, who is going to pay for that? Are you going to assess taxpayers?”

Alec Domb, representing the Wellington Chamber of Commerce, said the law could have a “chilling effect.”

“It has an enormous chilling effect on business and people trying to do business in the Village of Wellington,” he said. “The type of penalties involved here for what may be minor code violations are excessive under the circumstances.”

If a tenant of a shopping plaza violated the code, it could affect the entire plaza, he said.

“The plaza owner is bound because there’s a violation that had nothing to do with the owner,” Domb said.

With several options for appealing such violations, Domb urged the council to allow more leeway.

“At least wait until the appellate review is done before you look to assess these harsh remedies,” he said.

Representatives from the Realtors Association of Palm Beach County, Palm Beach Polo and others submitted requests to postpone the issue so they could come in person.

“My recommendation is to adopt this on first reading tonight and work out the issues before second reading,” Village Manager Paul Schofield said.

Despite the recommendation, Gerwig made a motion to table the item for further discussion. Coates seconded the motion, adding that although he supports having punitive measures, he was hesitant to support the language in the proposed ordinance.

“I support having punitive measures when we have recalcitrant developers or owners who are not complying with the code,” Coates said. “On the other hand, I have some problems with the way this ordinance is written because I think it allows for the punitive measures to be invoked before there is a final decision.”

He was also concerned about conflicting with state law. “I think that needs to be looked at,” Coates said.

Basehart said he believes that a building permit must be issued if the plans comply with the requirements of the building code; properties with violations would likely not be in compliance.

“You have to comply with all the codes and ordinances to get a building permit,” he said.

Gerwig’s motion failed 3-2, with Councilman Matt Willhite, Mayor Bob Margolis and Vice Mayor John Greene opposed.

Willhite said any additional clarification could be added before the final reading.

“I’m going to support going forward with this to second reading,” he said, making a motion.

The motion passed 3-2, with Gerwig and Coates opposed.