County withdraws “nuisance conditions” charges against Sean’s Outpost Homeless Outreach

March 18, 2014 marked Sean’s Outpost’s first birthday. In the last year, the organization has fed over 60,000 meals to the homeless of Escambia County, purchased “Satoshi Forest“ a 9 acre parcel of wooded land that is being used as a homeless sanctuary, handed out over 1,000 blankets to the homeless on the streets of Pensacola, despite the city’s blanket ban, and assisted 9 people in getting off the streets permanently.

April 15, 2014, a hearing was held  for alleged code violations at Sean’s Outpost’s privately-owned camp known as Satoshi Forest. Escambia County alleged that the group was guilty of two violations of the Escambia County Municipal Code and three violations of the Land Development Code.

Shortly after the hearing began, Escambia County attorney Kerra Smith withdrew two charges alleging violation of Escambia County Codes Sections 42-196 (a) and (b), concerning “nuisance conditions” and “trash and debris.” Those sections of the Code state:

Sec. 42-196. Nuisance conditions defined.

The following conditions existing on real property in the unincorporated areas of the county shall constitute prima facie evidence of maintaining a nuisance within the meaning of this article injurious to the health, safety and welfare and shall include, but shall not be limited to:

(a) [Nuisance Conditions] The creation or maintenance of any condition conducive to the breeding of rats, vermin, flies, mosquitoes, or other arthropods that are capable of transmitting diseases directly or indirectly to humans;

(b) [Trash and Debris] The accumulation of garbage, or other solid waste materials which violates any state law, regulation, or ordinance of the county or which poses a danger to the health, safety, and welfare to residents of the county;

Recent Florida Department of Health inspections confirmed no sanitary nuisance violations or public health risks existed on the property. On March 13, 2014, Escambia County Health Department inspector James Brough visited the property and noted in his report “The park has remained well maintained and has not shown any signs of posing a threat of sanitary nuisance, or public health risk at the time of inspection.” Similarly, the March 19, 2014 inspection report of Satoshi Forest stated, “No violations observed. No sanitary nuisance present at the time of inspection.”

Following the withdrawal of the two charges, the three remaining alleged violations were of the county’s Land Development Code, specifically sections: 4.06.00 Site Plan Review and Approval, 4.01.02 Permits and Prohibitions, and 6.04.01 Compliance with County Code. The issues debated were whether a property owner can assemble a tent (such as a common dome tent) on private property, and whether assembling such tents is considered “development” of the property, therefore requiring a permit (or permits), development of a site plan and review and approval of said plan by the county Development Review Committee (DRC).

Horace Jones, Manager of the Development Review Division and a witness for the county, stated that the tents presented in photographic evidence obtained by code enforcement were considered “temporary structures” as defined in the county Land Development Code and that these structures were permitted to be on the Sean’s Outpost property.

The Sean’s Outpost property is currently zoned C-2 (a general commercial district). Section 6.05.16 (B) of the county Land Development Code lists permitted uses for C-2 property, which includes “temporary structures” and any use permitted in the C-1 district, including campgrounds (see Section 6.05.14(B)(22)).

Per Escambia County Land Development Code, a “temporary structure” is defined as “a structure that is designed, constructed, and intended to be used for a period of time and that will be removed after the expiration of such time. The period of time must run consecutively and may not exceed nine (9) months in duration.”

Section 6.04.16 of the Land Development Code states:

A temporary structure may be erected on any lot provided it complies with its applicable zoning district regulations, and is used for commercial, commercial amusement, or recreational purposes. Temporary structures may include, but are not limited to, tents, portable shelters, wheeled structures, amusement rides, inflatable amusement structures, and constructed amusement structures. A temporary structure may constitute the primary use on a site and a permanent structure is not required to be located on the same site as a temporary structure. However, any temporary structure erected on a site must be approved by the County as follows:

A. Temporary structure in use for up to 30 days. A temporary structure shall be allowed provided it complies with its applicable zoning district regulations.

B. Temporary structure in use between 31 days and 180 days. The applicant must obtain a land use certificate from the planning official or designee for placement of the temporary structure.

C. Temporary structure in use for or longer than 181 days. The applicant must obtain approval from the Development Review Committee (DRC) and comply with all applicable DRC requirements.

Note: Nothing in this subsection shall be deemed to prohibit temporary structures associated with civic, community or religious events such as the annual Seafood Festival, arts and crafts festivals, social or religious activities associated with a principal structure housing a place of worship, or meeting hall, schools or activities at the fairgrounds.

Special magistrate Janet Lander noted, “Let me see if I’m understanding all of this correctly. The charges relating to the nuisance conditions and the trash and debris, they’re gone. So the only things that remain are the references to 4.06 Site Plan Review and Approval, 4.01.02 Permits and Prohibitions, and 6.04.01 Compliance with the Code…and based on the testimony of Mr. Jones, he would issue a land use certificate for the use of tents, these dome tents, if someone were to come in, hypothetically, and say ‘I want to put up one of these tents on my property.’ He said he would issue them. He also said that these dome tents would be within the definition of ‘temporary structures’ and temporary structures are allowed. As a matter of ‘use’ they are a permitted use. They are, at least for a certain amount of time. In the Land Development Code, these ‘temporary structures’ are a permitted use specifically. A ‘temporary structure’ which includes a tent is allowed in the C-2 as a matter of right and shall be allowed provided it complies with its applicable district zoning regulations. A little circuitous and not a model of clarity, but there it is. That’s up to 30 days. Up to 30 days, you could have a tent on C-2 property as a given. And we are, as far as the number of tents, the evidence indicates the number of tents is, well I don’t care about how many. What I care about are how many people. But there’s no evidence to indicate that there are more than 14, 15 people there. Don’t have any evidence on that. If the structure is in use between 31 and 180 days, the applicant must obtain a land use certificate for the placement of the structure. Horace Jones said he would give a land use certificate. Alright, then finally, if you’re going to have a temporary structure in use for longer than 181 days, the applicant must obtain approval from the DRC [Development Review Committee]…to have a tent located on C-2 property falls within the definition of a ‘temporary structure,’ and the County’s own witness testified that these structures would be allowed, tell me why I should not dismiss the case for lack of evidence a violation exists.” She continued “A ‘temporary structure’ is, it says in the Land Development Code that ‘A temporary structure may be erected on any lot provided it complies with its applicable zoning district regulations, and is used for commercial, commercial amusement, or recreational purposes. Temporary structures may include, but are not limited to, tents, portable shelters, wheeled structures, amusement rides, inflatable amusement structures, and constructed amusement structures. A temporary structure may constitute the primary use on a site and a permanent structure is not required to be located on the same site as a temporary structure. However, any temporary structure erected on a site must be approved by the County as follows,’ and then it lists the three. Now, this is not my interpretation of the code. The witness that you [the county] provided said that these structures, specifically referring to the photographs that we have, that were referenced as 4-15-10-16, these three structure, a dome tent, a tarp, and another more elaborate dome tent, those are the three structures that Mr. Jones stated would be allowed under this provision. That means for the first 30 days it’s not a violation of anything, 31st day you have to get a land use certificate, and after 6 months, after 180 days, you have to go through DRC. It’s not an open-ended thing, but I mean did Mr. Jones not say that these structures would be allowed?” Landers continued, “there is an issue as to whether or not it constitutes development. I’m telling you that this is very close…I am concerned about whether or not the county has made a prima-facie case that a violation of the code exists.

Per Escambia County Land Development Code, development is defined as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels. Specific activities or uses involving or excluded from development are defined in F.S. § 380.04.” Section (3)(d) of F.S. § 380.04 states “The following operations or uses shall not be taken for the purpose of this chapter to involve “development” as defined in this section… The use of any structure or land devoted to dwelling uses for any purpose customarily incidental to enjoyment of the dwelling.”

Special Magistrate Landers stated at the April 15th hearing that she would review all the testimony and evidence presented and will prepare an order within three business days.

In related news, County Attorney Kerra Smith (KASMITH1@MYESCAMBIA.COM) filed an injunction against Sean’s Outpost on April 3, 2014 in circuit court. Judge Jan Shackelford will be hearing that case. At this point, it is not clear how the injunction case will be affected if Special Magistrate Janet Landers dismisses the remaining allegations or rules that Sean’s Outpost is not guilty of any code violations, considering Kerra Smith has conceded there are no “nuisance conditions” or “trash and debris” code violations and recent site inspections by the Florida Department of Health agree.

Related:

Escambia County Commissioners to File Injunction Against Sean’s Outpost Homeless Outreach

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