Board of Ordinance Appeals I

CITY OF STERLING HEIGHTS ORDINANCE BOARD OF APPEALS MARCH 26, 2012 LOCATION: City Council Chambers, 40555 Utica Road, Sterling Heights, Michigan Chairman Pitrone called the meeting to order at 7:00 pm PRESENT: John Pitrone, Chairman, Kenneth Cooper, Vice-Chairman, Joseph DiGaetano, Secretary, Robert Ervin, Jennifer Hartson, Horst Hrinciuc, Code Enforcement Officer, Michael Viazanko, Building Official, Don DeNault, City Attorney, Jeff Randazzo, Animal Control Officer ABSENT: None RECORDING SECRETARY: Kimberly Stulz APPROVAL OF AGENDA Motion by Commissioner Cooper, supported by Commissioner Hartson to approve agenda after moving item number 8 to item number 1. Yes: All. Absent: None. Motion carried. ACCEPTANCE OF THOSE NOTIFIED BY MAIL Mr. Viazanko indicated that he is in receipt of a list of people notified by mail of tonight’s meeting. CORRESPONDENCES Mr. Viazanko indicated that he had four correspondences for tonight. They are as follows: G12- 0031, G12-0033, G12-0034 and G12-0037; the nuisances have been abated and there is no further cause for action. CONSIDERATIONS G12-0036 Rice, Jared 40114 Regency Drive. Hearing on the determination that a dangerous dog is harbored at this location. Animal Control Officer, Jeff Randazzo, stated that they received a call about a Pitbull, named Kellie, attacking a Shih Tzu in front of 40114 Regency. Officer Kitchen assisted him. They met with the caller who lived on Spitz. After speaking with them and finding out where the where dog lived, they went to dog owner’s house and informed Matthew of the incident, who was the only one at home. Matthew was, though, aware of the incident because it happened in front of his house. The dog exited an open gate, came out, and attacked the other dog. Officer Randazzo advised him of the Dangerous and Potentially Dangerous Dog ordinance, and let him know that their dog fell into the dangerous dog category because of the attack. The dog is being held at the County. He further explained the victim filled out a witness statement that the dog attacked her dog and then jumped on her. The victim told the officer that her dog received a deep, bloody wound. Mr. Rice, the dog’s owner, stated that he wasn’t there for the incident but did talk to the victim’s owner. He said it wasn’t as bad as it was expressed to be, and yes, he said the dog was wrong, but she never attacked before and really thinks the dog felt threatened or scared from the cone that the other dog was wearing. He said the gate was open from 10:30am to 3:00pm and he never left before the incident. He knows it was a mistake leaving the gate open but also knows she is not a dangerous dog. Ms. Tomei, the dog victim’s owner, was walking her dog that had an incident the Sunday prior and had a cone on its head and it was dragging on the cement. She believes the noise could have startled the other dog. She never had a problem before and thinks it was just a careless mistake. She took to her dog to the vet immediately and it was ok, a very minor wound and bite. She said the dog didn’t hurt her and after the bite, she ran back into the yard. The owners have been very kind and apologetic. Mr. Ronald Rice, property owner, said Jared is his son but his younger son left the gate open and the dog got out. She (Kellie, the dog) has lived with two other dogs at his home and at other places and has never done this before. He doesn’t know why she attacked, the only thing he can think of is because of the cone. She would never attack a person. Jared found her in Detroit when she was a puppy, raised her for four years and she never hurt anybody. She is everything to his son, his only consistency, and to take that away for a little bite on butt, he didn’t understand that. He said that the bite is already healed over. He insisted the attack wasn’t to maim or disfigure or any of the listed items on the form they were given and he doesn’t think it’s justified to put her to death for a little mistake. Mr. Burns, friend for many years and roommate at one point, said the dog is very loyal and loving. All the time she spent with other dogs and young children there was never glimmer of this type of incident. This is an isolated incident. He believed she was just startled and had an animal reaction. He knows there is a stigma about pit bulls but they are only violent if raised to be violent. She was obtained very young and raised properly. He believed the judgment is way too severe for the incident. Mr. Ladell, a friend, read a letter on behalf of Kellie stating the dog is playful and like a member of the family. Chairman Pitrone let everyone know as he understands it, this Board can uphold the dangerous dog designation or overturn it or indicate the dog is a potentially dangerous dog, all of which having different ramifications. Commissioner Cooper asked the following questions; how old is the dog, was it picked up as a stray and how old was it then, if he owned the dog the whole time, how long was he at the residence, was she familiar with the house and neighborhood, about the gate being left open and whether it had a latch, if the dog was out most of the time and what is her typical day, how much does she weigh, if he walks her, if she was exposed to other dogs besides the two she lives with, is she always playful. Mr. Jared Rice let him know that she was 4 now, around 7-8 weeks when he got her. They have been living at the house for two weeks now but Kellie was at his parents house off and on all of her life. The gate has a latch but was just left open, she is out most of the day and likes to play and run along the fence, she weighs around 30 pounds, he walks her and takes her to the park and beach with him where she is around other people and dogs, and she is always playful. Commissioner Cooper then asked the following questions to Ms. Tomei: did she walk her dog by this house often, if it was a normal route, if she ever noticed the dog, about the attack, he asked if she was growling or barking, if she latched on and tried to do harm. Ms. Tomei said that she walked her dog this way hundreds of times and never had a problem, she did notice the dog because she runs the fence all the time playing, she thought Kellie was scared and the attack was so quick and she didn’t have to pry the dog off her dog. She said that the bite never bothered her dog, she said that Kellie wasn’t barking or growling and that she was probably startled by her dog’s cone. Commissioner Cooper was having a hard time believing the cone was the reason Kellie came out and attacked; he was not convinced. Ms. Tomei said it was dragging on the cement and making a noise. Commissioner Cooper supposed this could have been a possibility but she could have gotten scared and ran away instead of biting and that they are just speculating as to the reason. Chairman Pitrone noted Ms. Tomei said it was a minor nip but Animal Control Officer’s report said it was a deep, bloody wound. The report also states she always walks across the street because of the pit bull. He believed there is some confusion and at the time she apparently told Animal Control that. Commissioner DiGaetano said looking at the notice of determination, there are four criteria listed for determining a dangerous dog and one of them is the attacked dog incurred severe injury. Ms. Tomei implied, no, that he was ok walking around the same day, has been fine, and now the wound is totally healed over. Commissioner DiGaetano asked if she had any experience with Kellie before and if she believed this was a one- time event. Ms. Tomei let him know that the dog never seemed vicious to her but her mom walks across the street because one never knows. Mr. Ronald Rice explained Kellie’s outside personality about running, jumping, and trying to play with anyone walking around their house and that she can get very excitable. Chairman Pitrone read from code that an attack doesn’t have to take place. A dog can be designated potentially dangerous or possibly dangerous if it menaces, chases, displays threatening or aggressive behavior toward, or otherwise threatens the safety of a person or domestic animal. Officer Randazzo let the board know that the witness was the one who described the bite as a deep, bloody wound. He asked if the dog was sterilized and licensed and let the Rice’s know he showed only two dogs were licensed at the home. He also wanted to know if the dog had any training. Mr. Ronald Rice said that they applied for the license but the city told them it takes 6 weeks. Mr. Jared Rice said that the dog is untrained and is not sterilized. Officer Randazzo asked if he would be opposed to doing that. Mr. Jared Rice said, no. Chairman Pitrone believed if a dog was afraid it more likely would run away than attack and that seemed more like aggressive behavior to him. Commissioner Cooper was not convinced the dog is a dangerous dog but could be potentially dangerous and said he would like to talk about the requirements of possessing a potentially dangerous dog with the City Attorney. According to Ordinance 8-28(d), if ruled a potentially dangerous dog, for the owner to get Kellie out of pound, Kellie’s owner would have to comply with all 9 requirements. Mr. DeNault, City Attorney, let Commissioner Cooper know that the 9th one probably wouldn’t apply because it refers to convicted felons but 1-8 definitely would. Commissioner Cooper asked if the Board has to abide by the 8 items and couldn’t delete any of requirements. Mr. DeNault informed them that the ordinance mandates the 8 requirements but does give them the power to add to the existing 8. Commissioner Cooper went through the 8 mandates of Ordinance 8-28(d) and also asked about the 3 year mandatory potentially dangerous dog list and the right to appeal with Mr. DeNault. Commissioner Cooper asked Mr. Jared and Ronald Rice if they were willing to comply with all 8 requirements. They said, yes. Commissioner Cooper also asked about the process of removing a potentially dangerous dog from the list. Mr. DeNault let him know the dog can be removed after three years without any violations and if the animal control officer agrees to do that. Otherwise, if he decides to keep the dog on the list, then they can come to the Board to appeal, once per twelve months. Chairman Pitrone informed them that the Board also has the authority to impose any other reasonable requirements for the public safety in this case, and he believed they might want to suggest the dog be spaded or neutered. Commissioner Ervin pointed out that one of the determinating factors for a potentially dangerous dog is that it causes injuries to person or domestic animal, which is less than a severe injury. Chairman Pitrone said it was a good point and the ordinance also states if the dog aggressively bites a person or domestic animal in a manner not normally associated with playfulness or accidental behavior. Commissioner Cooper asked about the follow up inspections, fee appropriations ordinance, what type of fee, if it was a one-time fee or per visit fee. Officer Randazzo said it should be one inspection to make sure they comply with all of the requirements before they go to court and the fee is around $52. Commissioner Cooper wanted to verify that if he goes out there more than one time it would be $52 per trip. Officer Randazzo agreed it is a per inspection fee. Commissioner Hartson asked Officer Randazzo, since Kellie has been in shelter, has she had any problems with any other people or animals. Officer Randazzo indicated Kellie was in quarantine but he was told they have had no problems with her. Commissioner DiGaetano asked of the 8 requirements if the Board can deviate from any of those. Mr. DeNault replied that they couldn’t undo any of those. Commissioner DiGaetano asked if all 8 had to be followed or none. Mr. DeNault replied that was correct. Commissioner DiGaetano asked Officer Randazzo, in his experience, if the training program is typical. Officer Randazzo said yes and that it is nationally recognized. Commissioner Cooper said they were provided with three motions; dangerous dog, potentially dangerous, and not dangerous. He was leaning towards potentially dangerous. He didn’t think Kellie was dangerous, mainly because of the testimony of the owner of the dog that was attacked. He continued to say that this was definitely a violation of ordinance but didn’t think Kellie should be put down. The last blank in the motion asks about time frames if the owner fails to apply. He asked Mr. DeNault his legal opinion. Mr. DeNault really thought it should be left to Board’s discretion. They have heard evidence and are making a factual determination. If comfortable, they could return Kellie tomorrow and have one week, two weeks, and have everything in place before she comes homes, should it be the Board’s determination. Commissioner Cooper pointed out that Kellie needs to be home for the training class and was okay as long as the item about the gate is resolved. He was trying to come up with a number of days that was fair. Chairman Pitrone believed before Kellie was returned home that all conditions be met except for the AKC, where a time frame would be put on that. Officer Randazzo let the Board know that normally a potentially dangerous dog is kept at home and given a 10-day window of opportunity to complete all the requirements. Chairman Pitrone reminded everyone that he didn’t give a potentially dangerous dog designation but gave a dangerous dog designation and he was a little concerned about reducing this. He believed the testimony has softened up from the bloody, deep wound to a nip, from crossing the street because of pitbull to friendly. He believed Kellie displayed behaviors on the border of dangerous and potentially dangerous. Commissioner Cooper agreed that there is some gray area with some of the behavior, but as one Board member listening to the victim’s dog owner testimony, it swayed him from Kellie being a dangerous dog. He agreed that it is not normal for a dog to run out of the yard and bite someone but he was not in favor of putting Kellie down. He would like to see her put on probation for 3 years. Chairman Pitrone pointed out that these bites do happen and that is why the City Council passed this ordinance to eliminate these types of issues. He strongly urged the Rices to get copy of the ordinance and read it carefully all the way through. Mr. Ronald Rice agreed and said he realizes that now. Chairman Pitrone said, he’s right on the border and a little reluctant to reduce the designation to potentially dangerous dog. But he let the owners know he would not vote to declare the dog non dangerous. Commissioner Cooper agreed he was not in favor of wiping the slate clean and saying Kellie was perfectly innocent. That is why he is ready to make a motion to put Kellie on probation as a potentially dangerous dog. Chairman Pitrone let Commissioner Cooper know he would have his support but wanted the spaded/neutered requirement added to the motion. Commissioner Cooper said that any other member could add to the motion if they feel like doing so. Motion by Commissioner Cooper, supported by Commissioner Hartson, to declare that the dog known as Kellie and owned or harbored by Jared Rice at 40114 Regency Drive, Sterling Heights, Michigan, is a potentially dangerous dog as defined by Chapter 8 of the Sterling Heights Code of Ordinances, specifically Section 8-28(A), and that it is subject to all of the conditions set forth in Section 8-28(D), as well as the following additional conditions: the dog will be spaded or neutered, with good faith progress to be demonstrated to the Animal Control Official within 10 days after this resolution has been adopted, and with completion of all conditions to be demonstrated to the Animal Control Official within 10 days after this resolution has been adopted, except for the AKC Training, which will be within 60 days. The owner shall pay an inspection fee of $52 per visit with the Animal Control Official. Failure to comply with these conditions and timeframes shall result in immediate confiscation as well as forfeiture and euthanization of the dog upon the expiration of 10 days after written notice of the confiscation has been provided to the owner or has been prominently posted at the above address by the Animal Control Official. Yes: Cooper, DiGaetano, Ervin, Hartson, Pitrone No: None. Absent: None. Motion carried. G12-0029 Clapp, Waltraut 3081 Albany Drive. Hearing on nuisance abatement at this location for overgrown bushes, overgrown vines/tree (behind house), fence in disrepair, trash in landscaping, debris – landscaping lights, trellis, accumulated yard waste (leaves). Horst Hrinciuc, Code Enforcement Officer, stated a couple of violation notices were sent. As of today, there has been no change. There are also weeds/nuisance growth in the pavers and landscaping beds. The following violations still exist: overgrown bushes, overgrown vines/tree (behind house), fence in disrepair, trash in landscaping, debris – landscaping lights, trellis, accumulated yard waste (leaves). Pictures were shown at this time. Motion by Commissioner Hartson, supported by Commissioner Cooper to declare that a public nuisance exists on the property commonly known 3081 Albany Drive and to direct the Code Official to abate the violations identified in the attached staff report immediately. The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city ordinance. Yes: Cooper, DiGaetano, Ervin, Hartson, Pitrone No: None. Absent: None. Motion carried. G12-0030 Clarke, James & Cynthia 33768 Sano Court. Hearing on nuisance abatement at this location for broken basement window, improper drainage trenches in need of filling in, area of pool removal in need of restoration (soil, grade, seed/sod). Horst Hrinciuc, Code Enforcement Officer, stated a couple of violation notices were sent. As of today, there has been no change. The following violations still exist: broken basement window, improper drainage trenches in need of filling in, area of pool removal in need of restoration (soil, grade, seed/sod). Pictures were shown at this time. Mr. Clarke let the Board know he has been dealing with this for over 12 years and that his next- door neighbor has created the nuisance by putting in a flowerbed that blocks the natural flow of drainage in the backyard. He said he put the drainage trenches there to prevent his basement from flooding. He showed pictures at this time. Commissioner Cooper said that he saw this gentleman before City Council where they directed the city to contact him and make a resolution. Therefore, he recommended the case be postponed. Mr. Viazanko pointed out that there were other violations besides the drainage ditches that were dug. Discussion ensued about the violations and eventually came back to recommend postponement. Motion by Commissioner Cooper, supported by Commissioner Hartson to postpone case G12- 0030 at 33768 Sano Court until the next regularly scheduled meeting. Yes: All. Absent: None. Motion carried. G12-0031 Atikian, Sarkis & Arlene 6365 Fifteen Mile Road. Hearing on nuisance abatement at this location for boarded windows in need of paint, window in need of boarding and painting. Memo received from Code Enforcement Officer, Todd Quertermous stating that the nuisance has been abated and there is no further cause for action. G12-0032 Cho, Yong Po & Yong Pun/ Federal Home Loan Mortgage Corporation 39646 University Drive. Hearing on nuisance abatement at this location for overgrown bushes, gutters in need of paint, garage siding in need of repair and paint, improperly stored garbage cans, outdoor storage – flower pots, bags of sand, plywood, plastic pails, shovel, cardboard and many other miscellaneous items. Horst Hrinciuc, Code Enforcement Officer, stated a couple of violation notices were sent. As of today, there has been no change. The house trim and garage also need to be painted and the fence is in disrepair (too tall). The following violations still exist: overgrown bushes, gutters in need of paint, garage siding in need of repair and paint, improperly stored garbage cans, outdoor storage – flower pots, bags of sand, plywood, plastic pails, shovel, cardboard and many other miscellaneous items. Pictures were shown at this time. Ms. Kanikowski, representative from Freddie Mac, said that the redemption period is up 4/6/12 and the client will have title and possession of the property. Depending on if the property is occupied or not, they will be able to address the violations. If occupied, they will have to go through the eviction process. Motion by Commissioner Cooper, supported by Commissioner Hartson to declare that a public nuisance exists on the property commonly known 39646 University Drive and to direct the Code Official to abate the violations identified in the attached staff report after April 16, 2012. The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city ordinance. Yes: Cooper, DiGaetano, Ervin, Hartson, Pitrone No: None. Absent: None. Motion carried. G12-0033 MICB-OCB RE Holdings II, LLC 44075 Phoenix Drive. Hearing on nuisance abatement at this location for ground sign in need of paneling/repair, debris – sign remnants, tarp, accumulated yard waste (leaves, branches), loose trash, tanks, barrel and other miscellaneous items. Memo received from Code Enforcement Officer, Alan Gross stating that the nuisance has been abated and there is no further cause for action. G12-0034 Homesales, Inc. 36572 Samoa Drive. Hearing on nuisance abatement at this location for junk auto in the driveway, outdoor storage – lawnmower, skimmer, tomato cages and improperly stored hose. Memo received from Code Enforcement Officer, Al Gross stating that the nuisance has been abated and there is no further cause for action. G12-0035 Community Choice Credit Union 35353 Evanston Ave. Hearing on nuisance abatement at this location for garage and house trim in need of paint, missing downspout extensions, damaged siding, dead tree trunk, broken/missing shutters, illegally stored firewood, fire pit in need of removal and restoration, debris – wood, logs, chain link fencing, chicken wire, branches, glass blocks, cinder blocks, broom, yard waste and other miscellaneous items. Horst Hrinciuc, Code Enforcement Officer, stated a couple of violation notices were sent. As of today, there has been no change. The overhead garage door needs paint along with the window frames. There is also improper downspouts on the garage that need to be removed along with the shutters. The following violations still exist: garage and house trim in need of paint, missing downspout extensions, damaged siding, dead tree trunk, broken/missing shutters, illegally stored firewood, fire pit in need of removal and restoration, debris – wood, logs, chain link fencing, chicken wire, branches, glass blocks, cinder blocks, broom, yard waste and other miscellaneous items. Pictures were shown at this time. Motion by Commissioner Ervin, supported by Commissioner Cooper to declare that a public nuisance exists on the property commonly known 35353 Evanston Ave and to direct the Code Official to abate the violations identified in the attached staff report immediately. The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city ordinance. Yes: Cooper, DiGaetano, Ervin, Hartson, Pitrone No: None. Absent: None. Motion carried. G12-0037 Covington, William 11870 Tahiti Drive. Hearing on the determination that a dangerous dog is harbored at this location. Memo received from the Building Official, Michael Viazanko stating that the appeal application was not received by the dog owner. OLD BUSINESS - None NEW BUSINESS – None PUBLIC PARTICIPATION - None APPROVAL OF MINUTES Motion by Commissioner Cooper, supported by Commissioner Hartson to approve Minutes of the March 12, 2012 regular meeting. Yes: All. Absent: None. Motion carried. ADJOURNMENT Motion by Commissioner Cooper, supported by Commissioner Hartson to adjourn. Yes: All. Absent: None. Motion carried. Meeting adjourned at 9:01 pm Respectfully submitted. John Pitrone, Chairman Joseph DiGaetano, Secretary Ordinance Board of Appeals Ordinance Board of Appeals