The Loxahatchee Groves Town Council on Tuesday denied an appeal by Dustin Ertle that a residential enterprise can have workers pick up equipment at the residential site to deliver to a job site.
Town Attorney Michael Cirullo explained that the request was a quasi-judicial hearing to consider an appeal to an administrative ruling regarding residential enterprises and whether a contractor picking up equipment at the site is considered an employee.
Attorney Michael Weiner, representing Ertle, whose property is on Bryan Road, said earlier this year, Ertle’s personal attorney had requested an interpretation of the town’s land development code in connection with Ertle’s business on the property.
“Specifically, the question was, does an employee who goes to a residential enterprise and picks up equipment in order to deliver it to a job site located off premises of the residential enterprise count as an employee?” Weiner said, explaining that Ertle’s business is a contracting company that specializes in foundation and utility work at construction sites.
Ertle said he purchased the property in July 2016 because it was zoned for a residential enterprise. He understood that he would have a limit of two employees working at the premises. He has a bookkeeper and an executive assistant working at the site.
However, on a daily basis, he has between six and eight vehicles entering and leaving the property with equipment, spending about 15 minutes there before going to construction sites. Ertle claims that his business is similar to other businesses in the area, including construction companies and landscapers with as many as 70 trucks entering and leaving.
Weiner said that the town’s code regulates the property and not the number of employees on the property who spend most of their time beyond the town’s borders.
“The clear and unambiguous meaning is that the ordinance is regulating the number of employees at the property,” Weiner said. “It is not regulating the number of employees conducting the owner’s business elsewhere.”
Weiner added that an interpretation that employees cannot enter and leave the property would also affect neighboring businesses that conduct similar operations with more than two employees.
James Miller, Ertle’s personal attorney, said he had spoken with county code enforcement who told him it has an ordinance that allows contractors to store equipment and trucks at residential enterprises. Miller added that Ertle is a local contractor for FPL in the event of an emergency.
Weiner added that many of the town’s residential enterprises have been in operation for a long time, and an interpretation denying Ertle’s appeal would also affect them.
Jim Fleischmann, the town’s planning consultant, said Ertle was appealing a finding of town staff that he could not operate the way he is now because the code limits the number of employees to two who can work outside the business office, regardless of the time that employee spends onsite.
“Any employee or contractor who enters or exits the site on a given day is subject to the maximum limitation,” Fleischmann said. “Based on the staff analysis, an employee who goes to a residential enterprise and picks up equipment in order to deliver it to a job site located off premises… is counted as an employee.”
Fleischmann added that a residential enterprise must be an accessory use to a residential unit or an agricultural use.
“Accessory use is defined as a use naturally and customarily incidental, subordinate and subservient to the principal use of the premises,” Fleischmann said. “It certainly does limit uses that claim to be a residential enterprise and essentially are principal uses.”
During public comment, Julie Villar, who lives near the Ertle site, said there are more than six to eight vehicles per day entering and leaving the site, some of them semi-trailers.
“I’ve tried to go to work only to have the road blocked by semi-trucks delivering spools,” Villar said. “Trucks in and out, in and out. I’ve been run off the road twice. This is supposed to be agricultural/residential. This is full-blown commercial.”
Vice Mayor Todd McLendon asked Ertle how many employees can be found at the site at the same time, and Ertle said about 15.
“Is that something you would envision being low-impact for a residential neighborhood — 15 [employees] with semi-trailers?” McLendon asked.
“No, I would not consider that low impact,” Ertle replied.
Councilwoman Phillis Maniglia said she felt residential enterprises operating as full-blown commercial operations have been allowed to happen due to village officials looking the other way.
“Since we’ve been a town, if it’s a buddy, that’s OK, and I’m a little sick of that,” Maniglia said. “That’s why these other people come into town, and they think things are OK. I think we need to make a change in our ordinance because I don’t see it getting better.”
McLendon agreed that the town’s code rules need to be looked at.
“I don’t think the intention was ever to have 18-wheelers and 17 employees at one given time on a residential street,” he said. “Are there other people violating this code? Absolutely, there are, and is it unfair that he is being penalized and the other people may be getting away with something. That isn’t fair, but we’re here to discuss whether this particular property is meeting it or not.”
Councilwoman Anita Kane said there are other avenues for Ertle to pursue, including asking for a rezoning classification.
“If this was the end of this man’s business, then I would really be having an ethical and moral dilemma here, but it isn’t,” Kane said. “There is another avenue for him to come back and ask for a rezoning classification.”
Fleischmann said approving Ertle’s request could open other residential/agricultural businesses to full-scale commercial or industrial operations.
Mayor Dave Browning said the ordinance was written to give homeowners with small businesses the opportunity to operate from their homes.
“It was never anybody’s intent to make an accessory use into an industrial enterprise,” Browning said. “It was to help the person with a small shop.”
McLendon made a motion to deny the appeal, which carried 5-0.
