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CEB Minutes 07/26/2001 RJuly 26, 2001 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, July 26, 2001 LET IT BE REMEMBERED, that the Code Enforcement Board, in and for the County of Collier, having conducted business herein, met on this date at 9:02 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: VICE-CHAIRMAN: Peter Lehmann Roberta Dusek Rhona Saunders George Ponte Diane Taylor Kathryn M. Godfrey-Lint Kathleen Curatolo NOT PRESENT: Clifford Flegal Darrin M. Phillips ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Maria E. Cruz, Code Enforcement Official Michelle Arnold, Code Enforcement Director Page 1 07/25/01 08:15 FAX 941 403 2545 COMMUNITY DEVELOPMENT * CLERK OF BRD ~001 ~0DE ENFORCE~]~NT BOAKD OF CQ.LLIER COUNTY, FLORIDA AGENDA Date: July 26,2001 at 9:00 o'clock Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Aclministrative ~ldg, 5rd Floor NOTE: ANY PEKSON WHO DECIDES TO APPEAL /% DECISION OF THIS BOARD WILL NE~D A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND Th~/REFORE MAY N~D TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIEK COUNTY NOR TH~- CODE ~NFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 4. AF3~R0%;AL OF MIN~ June 18, and June 28, 2001 5. ~BLIC HEARING~ A. BCC vs. Ja~es M. Hail B. BCC vs. Frances L. Pallis C. BCC vs. Kevin J. and Manring w. Thomas D. BCC vs. Willia~ G, $chrack E. BCC vs, Ralph & Maria Aquilera F. BCC vs. Parrimoor Dev. LLC CE~ No. 2001-026 CEB No. 2001-027 CED No. 2001-028 CEB NO. 2001-041 CEB No. 2001-066 CEB NO. 2001-067 Re~L'ues~ £oZ 2~g~)ost~on 0£ Finea/~en A. BCC vs. Karen R. Ard~er B. BCC vs. Frederick C. & Susan Thurston C. BCC vS. Andres & Olga Hernandez CEB No. 2001-001 CEB No. 2001-002 CEB No. 2001-01~ BCC vs. Dale L. and Cheryl A. Horbal CEB No. 99-069 Filing o~ Affidavit o~ Cms~lianc~ A. BCC vs. BCC vs. Karen R. Ardner B. NCC vs. Frederick C. & Susan Thurston CEB No. 2001-001 CE~ No. 2001-002 9. CO~-~Ts 10. NEXT MEETING DAT~ August 25, 2001 11. ~ADJOURN July 26, 2001 VICE-CHAIRMAN LEHMANN: Your attention, please. I'd now like to call the Code Enforcement Board of Collier County to order. Please note, any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto and may, therefore, need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz. Let the record show that Mr. Flegal is absent. Kathryn Godfrey. MS. GODFREY-LINT: Present. MS. CRUZ: Peter Lehmann. VICE-CHAIRMAN LEHMANN: Present. MS. CRUZ: Darrin Phillips. (No response.) MS. CRUZ: George Ponte. MR. PONTE: Here. MS. CRUZ: Rhona Saunders. MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor. MS. TAYLOR: Present. MS. CRUZ: And Kathleen Curatolo. MS. CURATOLO: Present. MS. DUSEK: Excuse me, but you didn't ask for me. MS. CRUZ: Excuse me. Roberta Dusek. MS. DUSEK: Here. VICE-CHAIRMAN LEHMANN: Very good. As we have two members absent, our first alternate, Kathleen Curatolo, will be voting Page 2 July 26, 2001 today. Having a quorum established, I hereby call this meeting to order. Could we have an approval of agenda? Are there any changes, additions, or deletions? MS. ARNOLD: Yes, there are. For the record, Michelle Arnold, code enforcement director. We're requesting that Item D be moved, under public hearings, to the first item, Item A. That's Board of County Commissioners versus William G. Schrack. And we're also deleting Item E, Board of County Commissioners versus Ralph and Maria Aguilera. Also, under old business we're deleting the item Board of County Commissioners versus Dale L. and Cheryl A. Horbal. VICE-CHAIRMAN LEHMANN: Any other changes, additions, or deletions? Hearing none I would entertain a motion to -- MS. TAYLOR: I'll move acceptance. MS. DUSEK: Second. VICE-CHAIRMAN LEHMANN: Diane has the first on that motion and Roberta has the second. We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: Agenda approved. Thank you. Let's go on to the approval of the minutes. I'd like to do the approval for the June 18th minutes. Are there any changes, additions, or deletions? MR. PONTE: Just the fact that throughout the minutes we're all referred to as commissioners, which was good, but not accurate. I wouldn't suggest any real changes except to note the fact that we are not commissioners. Page 3 July 26, 2001 VICE-CHAIRMAN LEHMANN: You didn't want to get the promotion, huh? Any other changes? MS. SAUNDERS: One other change. My name is -- my last name is spelled wrong. It should be S-a-u-n-d-e-r-s. VICE-CHAIRMAN LEHMANN: approve the minutes as amended. MS. TAYLOR: So moved. MS. CURATOLO: Second. VICE-CHAIRMAN LEHMANN: Do we have a second? MS. CURATOLO: Yes. VICE-CHAIRMAN LEHMANN: and a second, all those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: So moved. Minutes are approved. Thank you. I'll next move to the approval of the minutes of June 28th. Are there any changes, additions, or deletions to those minutes? Hearing none, I would entertain a motion to approve the minutes as submitted. MR. PONTE: So moved. MS. TAYLOR: Second. VICE-CHAIRMAN LEHMANN: Mr. Ponte and a second from Ms. Taylor. by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: (No response.) VICE-CHAIRMAN LEHMANN: you very much. I would entertain a motion to Kathleen? Having a motion I have a motion from All those in favor signify Any opposed? Minutes approved. Thank Page 4 July 26, 2001 We'll now move to our public hearings. Move to Case No. - CEB No. 2001-041, BCC versus William G. Schrack. Maria. MS. CRUZ: Yes, sir. I'd like to request (sic) if there's anyone on behalf of the respondent present? Let the record show there is no one representing Mr. William G. Schrack. I'd like to request that the packet that was provided to the respondent and to the board be admitted into evidence marked Composite Exhibit A, please. MS. DUSEK: I make a motion that we accept the Composite Exhibit A. MR. PONTE: I second. VICE-CHAIRMAN LEHMANN: We have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: Motion passes. MS. CRUZ: Members of the board, the alleged violation brought before this board is a violation of Ordinance No. 90-30, Sections 7 and 17 and 19(c). This is the solid waste collection and disposal ordinance. The violation is failure to engage in commercial garbage pickup by a designated contractor. The violation exists at 6245 Lee Ann Lane, Naples, Florida. This is more particularly described as commencing on the west one comer-- one-fourth comer, the east 1987.83 feet, the north 231.29 feet, the east 495 feet, the north 955 feet to the point of beginning, the west 330 feet, north 80 feet, east 330 feet, south. The owner of record is William G. and Eric William Schrack. Address of record is 2666 13th Street North, Naples, Florida. The violation was first observed on February 6th, 2001. A notice of violation was provided to respondent on February 6th, 2001, with a compliance date of February 20th, 2001. As of today the violation remains. Page 5 July 26, 2001 I'd like to turn the case over to the code enforcement investigator, Tony Asaro. MR. ASARO: Good morning. For the record I'm Anthony Asaro with the Collier County solid waste department. (The oath was administered.) MR. ASARO: On February 6th, 2001, I had written out a notice of violation to William G. Schrack and Eric William Schrack of All Seasons -- they own All Seasons Air Conditioning -- to schedule commercial garbage service with Waste Management, who is the authorized hauler for the county. And they were supposed to abate the violation by February 20th, 2001. We had spoken to Kela (phonetic) Flores with Waste Management. She advised us that Waste Management (sic) had not contracted with Waste Management for commercial garbage service. Therefore, we had scheduled to bring them before the board. MS. DUSEK: Have they given you any reason why? MR. ASARO: I guess the reason -- after-- I talked to William Schrack, and he just does not like Waste Management, and he feels that it's -- he feels like it's his -- he has a right to contract with any -- any hauler that he'd like to. And I explained to him that Waste Management is the authorized hauler for the county and that he does have to have commercial garbage service with Waste Management. He also advised us that he doesn't generate any waste at all, any garbage. But he does have several employees working there, so we don't see how he could not be -- how he could not be possibly generating some type of refuse. MR. PONTE: Is there anything outside of the commercial establishment? I mean, is there any waste out there, any rubbish? MR. ASARO: No. He has a-- he has a commercial garbage container, a construction container, that he utilizes for his recyclables. I haven't seen any refuse in there, but I'm just -- I'm just operating Page 6 July 26, 2001 within the guidelines of the ordinance, which in 90-30 it does say in Section 7 that if you are -- if you occupy a business -- if you are a business, you do have to have some type of garbage service with the authorized -- MR. PONTE: Even though we're in a paperless society, with all of that, he must have some paper. VICE-CHAIRMAN LEHMANN: Has Mr. Schrack contracted with another contractor as opposed to Waste Management? MR. ASARO: I think he has -- yeah, he has. And I think the name of the contractor is ESP. I think they -- he just -- the only -- he has -- I think they just remove his recyclables. They pick up his recyclables, and he can do that. He can contract with another hauler for his recyclables if that's what he wants to do. VICE-CHAIRMAN LEHMANN: Can he contract with another contractor for the solid waste other than recyclables? MR. ASARO: No, he cannot. VICE-CHAIRMAN LEHMANN: So it has to go through Waste Management? MR. ASARO: Yeah. He has to have Waste Management. MS. TAYLOR: It says his tenants. Is that one business, or is that more than one? MR. ASARO: He has -- what do you mean? MS. TAYLOR: Well, it says in my information here, the case involves no commercial garbage service provided by Mr. Schrack to his tenants. MR. ASARO: No. He doesn't have tenants. He has -- well, he has employees working in his business. MS. CHADWELL: If I might address the board, I'm Ellen Chadwell, assistant county attorney. I would like to mention that the ordinance does provide a commercial business an opportunity to apply for an exemption permit so that they can haul their own Page 7 July 26, 2001 garbage to a designated landfill if they come in and apply for the permit and provide us with certain information. And that permit is good for a year, and then they can go through a process on an annual basis. Aside from that, the ordinance does say that there would be prima facie evidence that there is an accumulation of solid waste by the mere fact of a residential unit or commercial property being occupied, and that's the situation here. So the ordinance is pretty clear on its face. He's got a commercial business. It's up and running. He falls within the solid waste benefit unit. And unless he applies for an exemption permit, he is required to be under contract with Waste Management for the disposal of his solid waste. So there is -- there is the exemption opportunity that I'd like to point out to you. MS. CURATOLO: Can I ask a question? Has he been made aware of the exemption opportunity? MR. ASARO: I'm not sure if he has or not. VICE-CHAIRMAN LEHMANN: Has the exemption been applied for? MR. ASARO: Pardon me? VICE-CHAIRMAN LEHMANN: Has the exemption been applied for? MR. ASARO: No, it has not. VICE-CHAIRMAN LEHMANN: All right. So there's no record of that application? MR. ASARO: We don't have any record of that. VICE-CHAIRMAN LEHMANN: Any other questions for Mr. Asaro? Thank you, sir. MS. DUSEK: Before I make a motion, Michelle, I have a question for you. On the violation sheet, it says William Schrack and Page 8 July 26, 2001 Eric William Schrack, and yet I think that the only one being cited was William Schrack; is that correct? On page 2 the petitioner versus the respondent, there are two names: William Schrack and Eric -- MS. ARNOLD: Right. MS. DUSEK: But then on the executive summary, we speak of William Schrack only. MS. ARNOLD: The notice of violation that went out -- on page 7 you should have a copy of that, of your packet. Both William and Eric William Schrack were cited. MS. DUSEK: I make a motion that there is a violation. VICE-CHAIRMAN LEHMANN: One second. I apologize. Do we know who the owner of the property is? Because the quitclaim deed only references Eric. MS. RAWSON: There's another deed. VICE-CHAIRMAN LEHMANN: We have a deed, and then we have a corrective quitclaim deed. MS. RAWSON: If I might, it looks to me like the first deed was to Walter Abler (sic) and William G. Schrack. And then there is a quitclaim deed -- it doesn't correct this deed; it's a corrective quitclaim deed -- from Abler to Eric William Schrack. VICE-CHAIRMAN LEHMANN: But we still are talking about both William and Eric Schrack. MS. DUSEK: Does that bring him into the first deed? MS. RAWSON: It does. It looks to me like they own it as tenants in common, each to an undivided half. MS. CHADWELL: The property appraiser's office appears to be showing them both as owners to the property, both William G. Schrack -- the printout from the tax roll shows both William G. Schrack and Eric William Schrack. VICE-CHAIRMAN LEHMANN: Thank you. Ms. Dusek, if you could continue. And I apologize for the interruption. Page 9 July 26, 2001 MS. DUSEK: That's all right. I make a motion that there is a violation, BCC versus William Schrack and Eric William Schrack, CEB Case No. 2001-041. The violation is of Sections 7 and 17 and 19(c) of ordinance 90-30, the Collier County solid waste collection and disposal ordinance. The description of the violation is failure to engage commercial garbage pickup by a designated contractor. MR. PONTE: I'll second the motion. VICE-CHAIRMAN LEHMANN: We have a motion by Ms. Dusek and a second by Mr. Ponte. And all those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: Having no opposed, the motion passes. May we have an order of the board. MS. SAUNDERS: I would suggest that since we're not certain whether he's been informed that he has a right to request a waiver for a year, that we follow the recommendations of the staff; but rather than just giving him five days, we give him 15 days and ask the staff to notify him in writing that one of his legal options is a waiver. VICE-CHAIRMAN LEHMANN: I would recommend to my colleagues that we alter the recommendation of staff because they had indicated to engage in a contract. That does not leave him the option of-- MS. ARNOLD: I was going to make that recommendation that we modify it to say or -- excuse me -- or apply for an exemption as provided for in the ordinance. VICE-CHAIRMAN LEHMANN: Just to bring the property into compliance, period, by whatever means he deems necessary or appropriate. And, again, you had -- Ms. Saunders, you had indicated Page 10 July 26, 2001 you wanted a 15-day instead of a 5-day? MS. SAUNDERS: I would like 15 days because I would like -- like him to at least have the courtesy of being notified that there is -- he may not know there's an option, and that way we're trying to bring him into compliance gently. And then a fine of $50 for every day afterwards sounds very reasonable to me. VICE-CHAIRMAN LEHMANN: Have you entered in prosecution costs? MS. SAUNDERS: Yes. I would want that. MS. DUSEK: Is that your motion? MS. SAUNDERS: It started as a discussion, but I will certainly make it as a motion. Jean, put it down as a motion. MS. DUSEK: So the 15 days and $50 per day. MS. SAUNDERS: That's right. 15 days, $50 per day ifthe violation continues, and respondent to pay prosecution costs from this day forward-- I'm sorry. Prosecution costs, period. VICE-CHAIRMAN LEHMANN: We have a motion from Ms. Saunders. Do I hear a second? MS. DUSEK: Second. MR. PONTE: Second. VICE-CHAIRMAN LEHMANN: Okay. Ms. Dusek seconded the motion. All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: None? Motion passes. Thank you. MS. CHADWELL: On behalf of code enforcement, we will see that he gets a notice of exemption. You haven't ordered that, but we will make sure that-- along with a copy of the ordinance provided with the letter citing that section. Page 11 July 26, 2001 MS. SAUNDERS: That sounds fair. Thank you. VICE-CHAIRMAN LEHMANN: Maria, would you please proceed to the next case? MR. PONTE: Excuse me. Before we start the next case, I think we're at -- are we at Hail? The Hail case and the Pallis case and the Thomas case are all obviously linked. MS. ARNOLD: I was going to just suggest that we hear them all together. MR. PONTE: I need some clarification. MS. ARNOLD: Okay. MR. PONTE: In one of the cases -- I think it was Pallis case -- there was a memo from Ron Nemo (sic) who questioned whether or not we were talking about a dock. MS. ARNOLD: We have -- MR. PONTE: Are we talking about a dock? MS. ARNOLD: We have -- as a part of the testimony and information for the case, all of that will be clarified for you. We have the county attorney's office here that is very familiar with the case and has made an opinion on whether or not we're talking about a dock or a deck. MR. PONTE: And my other need for clarification is on the positioning. When I looked at the photographs, I got rather confused. I wasn't sure who owned what property. Who owns the middle section of the dock versus the end sections, for example? MS. ARNOLD: We can clarify all that in the testimony. We'll show you photographs and try to attempt to do all that. MR. PONTE: Thank you. VICE-CHAIRMAN LEHMANN: Michelle, are you proceeding -- or do you intend to proceed with all of these cases simultaneously? MS. ARNOLD: Yes. And the investigator will clarify who owns the improved property and who owns the middle and the other Page 12 July 26, 2001 -- the property when he's providing his testimony. VICE-CHAIRMAN LEHMANN: And, Ms. Rawson, when the board decides to make findings of facts and order of the board, if it chooses, we have to handle these things independently or-- MS. RAWSON: Yes. You can listen to all the evidence once so that you don't have to have it repeated. But when you make your motions, take each case separately because depending on what you do, I will prepare three separate orders. VICE-CHAIRMAN LEHMANN: Okay. Thank you. Ms. Arnold, if you'd like to proceed. MS. CRUZ: Mr. Chairman, members of the board, I'd like to request to admit all the packets in Case Nos. 2001-026, 2001-027, and 2001-028, if there's no objection from the respondents' representative, I believe David Leigh. MR. LEIGH: No. I have no objection to consolidating. All the property owners have me representing them, and it would make sense to hear them all together. VICE-CHAIRMAN LEHMANN: And you have no objection to entering these packets as evidence to the board? MR. LEIGH: No, I have no objection. VICE-CHAIRMAN LEHMANN: Thank you, sir. MS. CRUZ: Also, I have a separate exhibit I'd like to show the - - Mr. Leigh. What it is is the permit application -- involves the permit application, the drawings, and the permit -- copy of the permit for such by alleged violation brought before this board here today. I'd like to provide a copy of that to the board, and I'd like to request that the first exhibit be marked Composite Exhibit A; the second exhibit be marked Composite Exhibit B. VICE-CHAIRMAN LEHMANN: I would entertain a motion to admit both packages as Composite Exhibits A and B. MS. SAUNDERS: So moved. Page 13 July 26, 2001 VICE-CHAIRMAN LEHMANN: Saunders. Do I have a second? MS. GODFREY-LINT: I second. VICE-CHAIRMAN LEHMANN: saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: (No response.) We have a motion by Ms. All those in favor signify by Any opposed? VICE-CHAIRMAN LEHMANN: Motion passes. Thank you. MS. CRUZ: May I proceed? VICE-CHAIRMAN LEHMANN: Yes. Thank you. MS. CRUZ: Case No. 2001-026, respondent is James M. Hail. The alleged violation is the existence of a wood dock located on unimproved property that runs the length of Lots 10, 11, and 12. The violation exists at Gulf Shore Block 1, Lot 11. Case No. 2001-027, this prop -- this case -- the respondent for this case is Frances L. Pallis. The alleged violation here is a wood dock extending from the rear of location east across two unimproved properties owned by separate entities, and this property is described as Gulf Shore Block 1, Lot 12. Case No. 2001-028, respondent is Thomas -- excuse me -- Kevin J. Thomas and Thomas W. Manring. The violation here describes as the existence of a wood dock located on unimproved property that runs the length of Lots 10, 11, and 12. This violation exists at Gulf Shore Block 1, Lot 10. Case No. 26, 2001-026, the notice of violations were provided to the respondent, James M. Hail, on November 30th, 2001 -- excuse me -- on May 30th, 2001. Compliance date was requested by June 11 th, 2001, and as of today the violation remains. Case No. 2001-027, respondent Frances L. Pallis. The notice of violation was provided to the respondent on November 30th with a Page 14 July 26, 2001 compliance date of December 21st, 2001. As of today violation remains. Case No. 2001-028, respondent Kevin J. Thomas and Thomas W. Manring. Notice of violation was provided to respondent on May 30th, 2001, with a compliance date of June 11 th, 2001. Violation remains as of today. I'd like to turn the case over to code enforcement investigator John Kelly. (The oath was administered.) MR. KELLY: Good morning, Acting Chairman, Members of the Board. John Kelly, Collier County code enforcement investigator. We're here today over a rather involved issue that first came to me on or about March 17, 2000. Three cases resulted in that single complaint which came in alleging that there was a dock existing upon unimproved property that was being utilized. An inspection took place on March 17, 2000. At that time I observed a single contiguous, all-wood dock. It existed on three lots, two of which appeared to be unimproved, one improved. The propex:ties in question were Gulf Shores Block 1, Lot 10 owned at that time by a Mr. Robert M. Baldwin, Jr.; and Gulf Shores Block 1, Lot 11 owned by James M. Hail. Those two properties were determined to be unimproved. The third property being Gulf Shores Block 1, Lot 12, the residence of Mr. Pallis, at that time was only brought into the picture for research purposes. Research of the unimproved lots alone resulted in a finding of no permits. At that time I proceeded to Lot 12, Mr. Pallis's, and it was determined that the dock was constructed with Building Permit No. 81-1330 for a contiguous, all-wood dock extending the length of Lots 10, 11, and 12. The stamped and approved plans revealed a 5-foot-wide dock and riprap. The permit was issued to a then-owner Bryan A. Dawber as an owner/builder who at that time owned all Page 15 July 26, 2001 three lots together. At that time I proceeded to discuss the case with planner Mr. Ross Gochenaur, and it was determined that upon the splitting of the properties for sale and the eventual ownership by three separate parties that it was, in fact, in violation and nonconforming -- rather, a nonconforming use was created as there were then two unimproved properties with a dock. Upon completion of that research, a notice of violation was issued to the then-owners, Mr. Baldwin and Mr. Hail. It's believed both parties retained counsel and requested to be heard before the Code Enforcement Board of their own accord. Upon conducting rechecks of the two unimproved lots, it was realized that improved Lot 12, Mr. Pallis's, would also be in violation as a result of setbacks. That came into play should the dock come down on Lots 10 and 11. Another review of Permit No. 81-1330 revealed that the submitted plans reflected a 7 -- 7 1/2-foot setback at either end of the dock. Additionally -- okay. And at that time a notice of violation was issued upon Mr. Pallis, that date being November 30, 2000. The required setback is 7 1/2 feet on either end for a total reduction of the Pallis dock of 15 feet. Mr. Pallis also requested to be heard by the Code Enforcement Board after several meetings with myself and supervisory staff. It's believed he's also represented by the same counsel, Mr. Leigh. It was determined by staff that all three cases should be heard together since all three cases involve the same permits. And at that time we were stepping forward to present the cases to you-all and they were on the schedule, and then we learned Lots 10 and 11 had been sold, again to two separate entities. The sales were at different times but in close proximity to each other. Mr. Pallis's case was postponed to keep in touch with the other two cases. A recheck on 5/30/2001 revealed that the violations did continue, and notices of violation were issued to the new owners, Kevin Page 16 July 26, 2001 Thomas and Thomas Manring for Block 1, Lot 10; and Mr. James M. Hail, the new owner of Block 1, Lot 11. Conversations with the new owners and their counsel also revealed the desire to appear before the board, and that results in the case being brought before you today. On June 15, 2001, I had the privilege of visiting the site with assistant county attorney Marjorie Student as a result of a letter received by, I believe, the planning department questioning if the facility represented a dock or a sea wall. It was noted at the time of that site visit that the original 7 1/2-foot setback which would have affected Lot 12, Mr. Pallis's property, was not met; and that would technically place the issued permit altogether in jeopardy. It was the opinion of Ms. Student that based upon the permit that was issued and the use of the structure, it was, in fact, a dock. Final recheck was affected yesterday, July 25,2001, at which time I observed the violations continued to remain. And there was some question over the photographs. Let me put these up on the view master right quick. These pictures were taken yesterday, so they are current. This is the entire span of the dock beginning at a point here which would be Lot 10, unimproved; roughly here Lot 11; and all the way down to a connecting sea wall is Lot 12. This picture would represent Lot 11 from the survey marker. I'm not sure if that's accurate but trust that it is. This would mark the beginning of Lot 11 and extending to approximately here, Lot 12, which becomes improved property. And the final picture, another survey stake marking the west side of Lot 11 -- again, not sure it's placed correctly, but trust that it is -- extending to a sea wall, ending the improved Lot 12. It's the recommendation of staff that the dock be removed from Lots 10 and 11 as they are unimproved and it's a nonconforming use. There is no principal use. Can't have an accessory use without a principal use. I believe that they may be able to apply for a variance, Page 17 July 26, 2001 but that would be at -- that would be their decision to do so. And in summary, we have a dock on Lots 10 and 11 that are unimproved and Lot 12 that is improved property, and setbacks are not met. MR. PONTE: Investigator, I have a couple of questions. In the Pallis property, if the dock length is reduced by a total of 15 feet, how much dock then remains for Mr. Pallis to use? MR. KELLY: We can go back to his original permit here and do some math. It looks like a 65-foot -- 65 feet wide less 15 feet, an estimated 50 feet, sir. MR. PONTE: Okay. Thanks. The other question I have is, have any of the new owners of the other properties suggested to you that they have plans to improve it? MR. KELLY: No, they have not. That would be another method of abatement; however, they also would need to comply with the setbacks for the individual lots. MR. PONTE: Thank you. MS. DUSEK: Mr. Kelly, at the time they applied for this first permit in '81, I believe it was, was the code different then? Have the setbacks changed since then and this is why we have a problem? MR. KELLY: The setbacks have not changed. I did go back and look at the code that was in force at the time. It also did not allow for construction of an accessory structure without there being a principal structure unless constructed simultaneously. So we would have had the same issue back then had the lots not been under single ownership. MS. DUSEK: In Mr. Pallis's case, Lot 12 I believe is his. If that -- if the -- if the dock was to be cut away, the other two, would his be in compliance? MR. KELLY: side east and west. MS. DUSEK: If he allowed for a 7 1/2-foot setback on either He would still have to make the changes, then? Page 18 July 26, 2001 MR. KELLY: Yes, ma'am. MS. SAUNDERS: John, is there any problem with the dock being dangerous or doing any environmental harm or anything like that? MR. KELLY: MR. PONTE: boats tied up to it? MR. KELLY: I don't believe so. Is it being used as a dock? I mean, are there It's my opin -- rather, I believe the definition states that a dock is any structure utilized for the mooring of a vessel or boat and utilized as a dock. If we look at Lot 12 again on the visualizer, we'll see a boat moored to the dock. On prior occasions there have been boats on Lot 10. MR. PONTE: Is it being used as a commercial dock? Are they renting the dock space? MR. KELLY: Not to my knowledge. VICE-CHAIRMAN LEHMANN: I think one of the biggest concerns I have in this particular case is, is this is a dock or a deck? Whether it's a residential dock, commercial dock, or whatever, but is it a dock or a deck? I'd like your-- MR. KELLY: I'm stuck with going with the definitions and the opinions of staff and the original issued permit. MS. STUDENT: Mr. Chairman, if I might, I -- Marjorie Student, assistant county attorney. I would like to read into the record from the code the definition of a dock. VICE-CHAIRMAN LEHMANN: One second, Ms. Student. We need to swear her in, please. MS. STUDENT: I'll be sworn. Attorney argument usually isn't subject to that, but I don't mind being sworn. So go right ahead, Madam Court Reporter. (The oath was administered.) MS. STUDENT: So for the record, I wanted to read the entire Page 19 July 26, 2001 definition of a dock facility from the Land Development Code into the record. "Any structure constructed in or over a waterway for the primary purpose of mooring a boat or any combination of such structure and the vessel it accommodates. This includes docks, walkways, piers, mooring pilings, boathouses, and the like." And it would be my opinion that in utilizing this definition, the code would -- functions as the trier of fact, taking the principles of law that are set forth as part of the proceeding. So based upon the evidence presented and the professional opinions of staff, it would be my opinion that you-all are the trier -- finder of fact utilizing this definition and the evidence presented. VICE-CHAIRMAN LEHMANN: Thank you. MS. DUSEK: Mr. Kelly, I might have missed something, but with the original permit and the fact that the code was the same then as it is now. But I -- I think I heard you say that Mr. Pallis still is not in compliance with his setbacks, even though in '81 he was given a permit, and apparently he was in compliance? MR. KELLY: Correct. Let me lead back to a prior question, and I'll catch up in just a moment here. We'll note on the permit it was issued for 190 feet of riprap, sea wall, and dock. As to your question, the original dock, Lot -- this is going from the right -- Lot 10, 11, and 12 indicates a 7 1/2-foot setback. These are the approved plans. That setback appears never to have been put in. VICE-CHAIRMAN LEHMANN: I'd like to remind my colleague that when this dock was first permitted back in 1981, this was all one piece of property. MS. DUSEK: Yes. VICE-CHAIRMAN LEHMANN: And subsequent to the construction of the dock, then the property was divided after that -- MS. DUSEK: Yes. VICE-CHAIRMAN LEHMANN: -- which would change the Page 20 July 26, 2001 use of that property. MS. DUSEK: I realize that. I just -- I'm a little confused about the setback issue. If he had been given that permit, it must have been approved -- the setbacks must have been approved at that time. And I guess what I'm leaning toward is if that is true, if he had been given approval in 1981 -- and I understand that the property was all one and has since been divided. But I'm leaning back to Mr. Pallis's property. If it were to be cut away, why wouldn't he still be in compliance and the other two not in compliance? MR. KELLY: Okay. Based on the original permit application and the plans submitted, there's clearly a 7 1/2-foot setback that was not there -- MS. DUSEK: But he -- okay. MR. KELLY: -- which indicates at that time that the permit was issued, you'll see 7 1/2 feet on the west and 7 1/2 feet on the east. Those are the setbacks for three lots joined together. At the time the property was split into three, you come up with a changing land use, which is you have accessory structures where there are no principals. VICE-CHAIRMAN LEHMANN: In a sense, as I see it, once we divide these lots, now we need setback on both sides. And as it stands here, we have setback on one side but not the other. MS. SAUNDERS: When were these lots divided first? I mean, not the present owners, but the previous ones. MR. KELLY: I would need to refer to my original paperwork. It should be reflected on the property cards. Just a moment. MS. SAUNDERS: Sure. VICE-CHAIRMAN LEHMANN: Are there any other questions for Mr. Kelly? MS. SAUNDERS: I have one other question for the attorney, I guess. VICE-CHAIRMAN LEHMANN: Thank you, Mr. Kelly. Page 21 July 26, 2001 MS. SAUNDERS: Is there a statute of limitations on something like this regarding a setback after -- it's been 20 years. Assuming that it wasn't properly done in the beginning, at some point does something get grandfathered in? MS. STUDENT: Again, Marjorie Student, assistant county attorney. There isn't because the code -- this is a matter of our code that we're dealing with. And, in fact, the case law is if there's been a permit issued illegally -- and I don't think that that's the case necessarily here because I believe the setbacks were shown. But just to give you a little background, even though the permit may have been issued illegally, when it comes to the attention of the local government, the local government can go in and revoke the permit and require that the conforming or illegal structure, if you will, be taken down or moved. There's one case, Gayer (phonetic) versus Dade County, that deals with this where a wall had to be taken out. So there's no -- and there's also case law that tells us that if a local government fails to enforce its codes for a certain amount of time or for however long, that even though the local government hasn't enforced it, they are not estopped or prevented from enforcing it when they discover a violation. So on that basis -- and I know of no statute of limitations or curative provisions in our Land Development Code that would control. I have been the county's land use attorney and zoning attorney for almost 14 years and dealing with our codes. MS. SAUNDERS: Thank you. VICE-CHAIRMAN LEHMANN: And, again, the original application for a permit is not at issue. That was considered appropriate and still is at this point in time. Any other questions for staff or the attorney? MR. KELLY: I'm told it looks -- it appears to be 1996 that the properties were split. Page 22 July 26, 2001 MS. SAUNDERS: Okay. Thank you. VICE-CHAIRMAN LEHMANN: Mr. Leigh, would you like to speak? MR. KELLY: I'm sorry. Correction. 1986. (The oath was administered.) MR. LEIGH: Good morning, ladies and gentlemen. My name's David Leigh. I'm the attorney for all three of the respondents here; that is James Hail, Kevin Thomas, and Frances Pallis. Kevin Thomas is in the audience today. Jim Hail's in the audience today. Mr. Pallis, who owns the house that's on the property in question, is up in New Hampshire. He goes there for the summer, so he wasn't able to make it. But I'll be speaking for him, of course. If I may, I got the notice just a couple of days before I was supposed to have a packet in, and it did not give me, really, time to respond to that. And if there's no objection, I'd like to pass out a couple of sheets of paper to the board. Would that be acceptable? VICE-CHAIRMAN LEHMANN: Yeah. Jean, do we need to vote this into evidence? MS. RAWSON: I think so. I would assume that the -- Attorney Leigh is making a motion to introduce this into evidence as respondents' exhibits. MR. LEIGH: So moved. VICE-CHAIRMAN LEHMANN: Thank you. I would entertain a motion to enter the respondent's evidence -- excuse me -- package into evidence as a composite -- as respondent's package composite-- Evidence Package A. MS. SAUNDERS: So moved. VICE-CHAIRMAN LEHMANN: You know what I'm trying to say. MS. DUSEK: Second. VICE-CHAIRMAN LEHMANN: We have a-- Page 23 July 26, 2001 MS. RAWSON: And this is in all three cases? VICE-CHAIRMAN LEHMANN: Yes. Thank you. You know, you get old and things start to get -- we have a motion and a second. All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) VICE-CHAIRMAN LEHMANN: Motion passes. Thank you. MR. LEIGH: I have two different packages. First of all, I only have one copy of these photographs, but it may give you just a little different perspective on the properties. Secondly, I have an affidavit from the neighbor that I'll be discussing, from the neighbor right next door. And then thirdly, I just have a summary of my arguments, just so if you're a visual person, you can maybe follow along. MS. ARNOLD: Can I get a copy of what you're presenting to the board? MR. LEIGH: Yeah. I was -- I gave them-- MS. SAUNDERS: It's working its way down. (A discussion was held off the record.) MR. LEIGH: Thanks for bearing with me on that. I'd point out that I have given the chairman the original of the affidavit. I got it signed this morning, and so I wasn't around a copy machine to make the extra copies. But what everybody has in a copy is an exact copy of the signed affidavit. I would -- I'm going to respond to this in -- in the -- sort of the simplest terms first and then go to the more -- sort of the broader issues, and particularly with respect to Mr. Pallis. This structure, this -- I shouldn't call it a structure because that means it goes up. This improvement -- and I'll call it a deck because that term is -- is -- better serves my clients is why I'll call it a deck. This deck is constructed along all three lots. There's from -- if you Page 24 July 26, 2001 go from Bayshore Drive and you just pass Haldeman Creek, pass over the creek, and it's the immediate right there. So there's that little restaurant/chickee-type thing on the comer, and then this road just goes right in behind that. And you go down to the end of the road, and just before you get to the end, you pass Lot 10, no house, part of the dock; Lot 11, no house, part of the dock; Lot 12, Mr. Pallis's residence; and then Lot 13 is a gentleman named William Connelly, and he's the one who's given the affidavit. If you would look, please, in the Pallis -- in the Pallis package, about six pages from the end there is a survey of Mr. Pallis's property. And unfortunately I did not have surveys available of the other property. I listened to Ms. Student's summary of what is a deck and a dock. MS. STUDENT: as to what a deck was. Objection. I don't believe I ever said anything I read -- it wasn't my summary, sir. I read it from our Land Development Code. MR. LEIGH: I apologize. I didn't mean to be argumentative. I was just generally summarizing it. She was defining for you what she believed to be a dock. MS. STUDENT: It's what our land code -- correction. It's not what I believe to be a dock. It's what the land code -- I read the definition in from the land code. It is not my belief. The land code speaks for itself. VICE-CHAIRMAN LEHMANN: So noted. Thank you. MR. LEIGH: Thank you. At any rate, the survey -- the survey shows this structure, and up at the top of the survey is the 4-foot -- and the surveyor calls it a 4-foot wood deck. Now, that doesn't have legal consequence, but it's interesting that he noted it that way. It's a 4-foot wood deck, and you'll note that it's entirely within the boundary lines of the lot. It's not on a navigable waterway. It happens to be over some water, but the riprap underneath this -- and Page 25 July 26, 2001 I'm not sure exactly if any of the pictures show that, but the riprap underneath comes out to the edge of this deck. So this is not a deck that's over the water into a navigable waterway, thus making it a dock. There are -- I mean, I think there are -- there's room for variance on that, and I respect Ms. Student's comments. Certainly it's something that can be argued. But my argument to you is that this is entirely within the property line of these -- of these people. And as you go down to Lots 11 and 10, you would find the same thing here. The deck is within the lot line; thus it's within their property. They could actually build a sea wall here and fill it in, and it would be all their property, and then there would be no question about whether this was a deck, I think. And the fact is that they have riprap underneath. Now, you can bring a boat up alongside of it, but that doesn't routinely make it a dock, I believe. And so since it is within their boundary line and since there's riprap underneath, they're not into navigable waterway, they're on their own property and they could actually reclaim that property, this is a deck, not a dock. The key thing there -- that issue, I believe, only relates to setbacks. If it's a deck or a dock and it's just plain not permitted, then it's got to go. All right. But if it's -- but if you should, for instance, not permit this, but then as to Mr. Pallis at least, the setback requirements do not apply to a deck. They apply specifically to a dock. But a deck is not a structure, and thus there are no side setback requirements. So Mr. Pallis wouldn't have to chop his deck shorter. He could just leave it as is because it's not a structure. VICE-CHAIRMAN LEHMANN: Mr. Leigh, let me bring your attention to the photographs. We have numerous -- not just one boat, but numerous boats tied to this deck, dock, structure, whatever you want to call this thing. MR. LEIGH: Oh, I don't doubt that there -- Page 26 July 26, 2001 VICE-CHAIRMAN LEHMANN: It's a common sense usage. MR. LEIGH: Sure. Yeah. VICE-CHAIRMAN LEHMANN: So you're telling me that what we see is an occasional tying of the boats. MR. LEIGH: No, sir. I -- there definitely can -- you can definitely tie boats alongside there, but that doesn't -- I don't believe that necessarily makes it a dock for purposes of the code and the setback requirements. That's my argument, at least. And I understand, as I said, there's room for varying opinions on that. You can tie docks (sic) alongside. But since it is within the boundaries and over the riprap, I believe it would be characterized as a deck and, thus, not subject to setback requirements. As I said, I'm taking the simple argument first. I'd like to at least present that as a possibility such that if you determine that this -- this improvement, whatever you want to call it, needs to be removed, Mr. Pallis, at least, could be exempted from the setback requirements if it were characterized as a deck as opposed to a dock. It would be -- still have to be removed on the other lots if you so determined. So that just -- that just addresses just the setback issues and that's all. VICE-CHAIRMAN LEHMANN: I understand. MR. LEIGH: All right. This is Lot 10. Lot 10 also shows -- I could offer that, but Lot 10 also shows the -- the deck within the property line. Okay. But on to the broader issue -- or issues. Mr. Connelly has been kind enough to supply me with an affidavit. It's Lot 10, 11, 12, and then Connelly; and 12 is Pallis; 13, Connelly. Mr. Connelly has lived in his property since 1979, and he has supplied me with this affidavit that goes into the history of this dock. I think the significant thing that has not been mentioned to you yet, this property was jointly owned -- it was owned by a single individual at the time the dock went in, but the critical fact is there was no structure there at the time. Page 27 July 26, 2001 The dock was permitted. It was a vacant lot in 1981 and '82 and '83. Over a couple of years, Mr. Connelly assisted Mr. Dawber in putting in the riprap and putting in the dock. Mr. Connelly's recollection is it was completed by 1984. He was a little vague on the exact time, but it was 1983, 1984, somewhere in there. There was nothing but a small tool shed on this entire parcel, Lots 10, 11, and 12. Mr. Pallis's house on Lot 12 was not there yet. Mr. Dawber owned the property for many years. The dock existed there along three vacant lots from 1983 until 1997 when Mr. Pallis's home was built. I can't tell you exactly the dates on the title transfers, but sometime in the early to mid-'90s, Mr. Dawber had sold two lots, Lot 11 and 12, to Mr. Pallis and Lot 10 to somebody else. Mr. Pallis built a house, later sold Lot 11 to somebody else. So now Lot 10 is owned by somebody else; Lot 11 was owned by somebody else; 12 owned by Mr. Pallis. But the fact is that this dock was installed on a vacant lot and was allowed to sit there for about 14 years without anybody saying anything about it. Mr. Pallis built a house on Lot 12, which makes him at least in compliance to that extent, so his dock or deck need not be removed. But the other two have been in that same circumstance. So that leaves me -- on my -- on my arguments called "Respondents' Arguments," since the deck was legally permitted and constructed back in 1981, '82, and '83 and -- well, in my -- my conclusion is it's neither a structure nor a dock. It's a deck. I liken it to if there was -- perhaps somebody had put in a concrete driveway somewhere on one of the lots.at some time and somebody built a house on the end and sold off the other two parcels, I don't think it would make much sense to remove that concrete driveway if it wasn't hurting anybody. So that's my analogy here to sort of a simpler-- a simpler situation that would, I think, be analogous. It wouldn't make Page 28 July 26, 2001 sense to remove that driveway. VICE-CHAIRMAN LEHMANN: Mr. Leigh, when did you say the home was built? MR. LEIGH: In 1997. VICE-CHAIRMAN LEHMANN: Because I have a survey, in fact the same survey, page 16 of the package, that shows a one-story house in '95. MR. LEIGH: Okay. That's on Pallis? VICE-CHAIRMAN LEHMANN: Yes, sir. MR. LEIGH: Okay. 12/16 -- 2/16/95. The situation on that, this may have been an as-built survey. I apologize for that. Mr. Pallis is somewhat elderly and -- and may have gotten mixed up on the dates. He said, "Well, I think it" -- I talked to him last night about this. He said, "Well, I think it was about '96 1 built it and probably finished it in '97." So I apologize for that discrepancy. You are correct. But at any rate, suffice it to say that it was not built before '95 or thereabouts. I'm off by about a year because his memory was off a little bit, and I was just going by that. I did not mean to mislead you. But you are correct. That was -- that was pretty astute to pick that up. I didn't notice that. All right. So anyway, it was -- let's say it was vacant there -- the dock was along three vacant lots for about 12 years or so, and no enforcement action was taken. No enforcement action was taken on Lot 10 for many years after that. And, I mean, Lot 10 was owned by somebody else besides Pallis, and that had a dock or deck sitting along it. From about '95 until 2000 there was no enforcement. This leads me to two conclusions. I don't know what the ordinance was at the time. If at that time it was constructed -- and let's go to No. 4. And I certainly have no reason to doubt what John Kelly said about that. If there was an ordinance at the time requiring a principal structure, then the county is estopped from enforcing the Page 29 July 26, 2001 ordinance because the county permitted the deck without requiring the principal structure and thus waived enforcement. And the county failed to enforce the ordinance for at least 13 years, and I'm going to say maybe it was 12 years. And I understand -- I heard Ms. Student's comments about enforcement of ordinances and whether you can enforce it after this amount of time. I don't disagree with what she stated, but I will say also there's another line of cases that says when the county acts for a certain period of time or in a certain way that causes someone to act to their detriment, they become estopped from being able to enforce a certain ordinance in that circumstance. It's -- essentially they've waived their right to enforce it if they've acted a certain way over a certain period of time. What I'm saying is if a county permits a deck or a dock in 1981 and doesn't do anything about it for 12 or 13 years and on one lot, in fact, doesn't do anything about it for 20 years, at some point it doesn't make much sense to go and try to enforce that ordinance at that time. The second argument is -- assuming John is correct about that, then No. 4 would apply. If at the time -- No. 3, as an alternate, if at the time the dock was constructed there was no ordinance requiring a principal structure, then the deck was legal when it was installed and it's grandfathered in. Now, as I say, I just haven't checked those ordinances. I have no reason to doubt what John said. But one -- on either of those options, either it's grandfathered or the county is estopped from enforcing the ordinance against this particular dock. My final conclusion to you is that enforcement of the ordinance under these circumstances just doesn't make any sense. It's been there for 20 years. It's been on vacant lots for about 15 of those years. It doesn't make any sense to enforce it now. My clients are willing to agree that there will be no commercial usage of the dock, Page 30 July 26, 2001 no general docking of vessels except maybe a personal boat of theirs. Or if you don't want that, you don't have to have that, in case that's a concern. The general plan is to build houses on these properties. They're -- it's not imminent. They're not going to file a -- you know, apply for a building permit tomorrow, but they bought them as an investment to build houses and so forth. And, you know, what we'd be requiring here is for-- after 20 years of being there, these docks are going to be yanked out, and then somebody's going to go in and build a house in the pretty near future and just have to rebuild a new dock again. And that, again, doesn't make any sense. So we would request the board to consider our arguments. There are -- you know, there is a technical argument that the county has, but there are oVerriding factors in this circumstance that would -- that just make the -- that just make it -- that just don't necessarily make sense to enforce the ordinance in this situation. I appreciate your time. Thank you. If you have any questions, I'll be glad to answer them. VICE-CHAIRMAN LEHMANN: Any questions for Mr. Leigh? MS. DUSEK: Not at the moment, but I do have one for the county. And I don't know whether I would -- maybe address it to Ms. Student. VICE-CHAIRMAN LEHMANN: Mr. Leigh, if you'd like to have a seat. I'm sure you'll be speaking to us again. MR. KELLY: John Kelly again. If I may, just to correct a piece of testimony earlier, I understand the property -- and I won't vacillate on this anymore -- was split in '96. MS. DUSEK: If-- from Mr. Leigh's testimony, I gathered that if they were to fill in under the docks, that this could be part of their property and not be considered a dock, deck or -- Page 31 July 26, 2001 MS. STUDENT: I have read -- I'm acting as an adviser, legal adviser to staff today. And I'm not -- I feel real uncomfortable because I feel like I'm maybe sliding into the rol~ of an expert witness, and that's not my role here today. I have read into the record and I will do so again, be glad to, the definition of a dock facility. And as an adviser to staff and arguing to support staffs position, I'll read it again. And I don't see anything in that definition that talks about riprap or anything that might be under it. Any structure -- "Dock facility: Any structure constructed in or over a waterway for the primary purpose of mooring a boat or any combination of such structure and the vessel it accommodates. This includes docks, walkways, piers, mooring pilings, boathouses, and the like." The definition of a structure is "Anything constructed or erected which requires a fixed location on the ground or in the ground or attached to something having a fixed location on or in the ground, including buildings, towers, smokestacks, utility poles, and overhead transmission lines. Fence, gates, or posts are not intended to be structures." It doesn't say anything here about the type of facility that was described in the testimony by Mr. Leigh as not being a structure, not being a dock. And the code is what this board has to guide it in its deliberations and making its factual determinations. VICE-CHAIRMAN LEHMANN: And do we have a definition of a deck? MS. STUDENT: There is no definition in the code of a deck. We -- the case laws tells us in that event that -- and courts do this -- you go to the dictionary. So Ms. Belpedio of our office -- VICE-CHAIRMAN LEHMANN: You guys were prepared for me, weren't you? MS. STUDENT: Ms. Belpedio of our office -- this is from the New International Webster's Dictionary of the English Language. Page 32 July 26, 2001 The 1995 edition states that a deck -- it says "A floor in a ship, most often wooden, running from side to side, sometimes from end to end." And then it goes on to other more technical meanings such as in the case of the printing trade and computers. And it doesn't seem, in that dictionary, to address the deck that we commonly see in people's back yards and things of that nature. But these are the parameters to guide you in your deliberation. And also, as just a matter of rebuttal, Mr. Leigh didn't cite any specific authority, but I can tell you in my research -- and I've researched this extensively for briefs that I've written in circuit court and district court of appeal on certain issues; I've also lectured on vested rights around the state of Florida -- that as a general rule where there -- something has been issued in error, the courts will not apply an estoppel necessarily against the government if a permit has been issued in error. There are other situations where estoppel will be applied, and the reason for that is that we all make errors. Government employees make errors. And if the permit itself is issued in error and it happened a lot, it could render a nullity of the regulations. And that's why in these certain instances an estoppel doesn't necessarily lie. And he didn't cite any authority that was -- I did cite the case of Dade County versus Gayer where a permit was issued for a wall and a setback, and the local government later found that that was issued in error. And it was rescinded, and the property owner had to move the wall. VICE-CHAIRMAN LEHMANN: Ms. Student, let me bother you for a little bit longer. Couple questions. Is there any case law or ordinance requirements speaking specifically to the change in ownership and the change in occupancy or use of land during that change of ownership? MS. STUDENT: As far as I know, there are no ordinances. Page 33 July 26, 2001 There may be case law. There's no -- there are no ordinances that the county has that deals with that. Our nonconforming ordinances deal with where there's a change in the law and where something was conforming under one code, when that code was either entirely repealed and a new one adopted or an amendment making it nonconforming. And we have three types of nonconformities: Nonconforming uses, nonconforming lots, and nonconforming structures. VICE-CHAIRMAN LEHMANN: In this particular case, we have a lot that was purchased originally all in one piece. It was then subdivided and sold off in parts. When it is sold off in parts, does my usage, by law, change then? Does my new owner have to comply with the existing codes in effect at that point in time? MS. STUDENT: Yes, I would say they would. And in terms of just the setback issue, I think this could be cured by a variance. But we have the other issue about the accessory structure and the lack of a principal structure. That's certainly been in the code ever since I've been with Collier County. VICE-CHAIRMAN LEHMANN: Okay. I -- I'm sorry. MS. DUSEK: Go ahead. VICE-CHAIRMAN LEHMANN: Well, ! have a number of questions, but go ahead, please. MS. STUDENT: And I can tell you I know of some case law, not exactly like this, but dealing with the setback issue. And I'm going back on my memory, but say somebody owned two lots and for some reason they -- the structure was such that they met the setback when they had the two, but then they were divided and they didn't, then they typically would get a variance. MS. DUSEK: This probably isn't a question for you. I think it's probably for Mr. Kelly or Michelle. The property line, is it at the end of this deck/dock? And if it is, if they were to fill in under this Page 34 July 26, 2001 deck/dock, would there be an issue? If this were solid underneath it -- and I don't know whether you're following me, but the dock as it sits over the water -- or the deck, whatever we're calling it -- if they Do were to fill in underneath there, now it's no longer over the water. they have the right to do that? And if so, is this a nonissue at that point? is-- MS. ARNOLD: So your question is if the structure in question MS. DUSEK: Resting over solid land. MS. ARNOLD: Yeah. -- is a part of the legal property of the property owner and if it's then filled in, does that structure change or-- MS. DUSEK: Would there be a problem with setbacks, or would there be any -- any code violations at that point? My feeling is that this is because it's over water that is -- it is more of a problem than if it were under -- on solid land. MS. ARNOLD: I would -- I would say that the structure would probably change because now it -- it would be a land -- part of the land. But, I mean, I have to defer to the county attorney's office on that because -- MS. STUDENT: Well, I think that may be -- that may change the character of the use, but I -- I believe -- I guess that's navigable, obviously. There may be some issues with the state and DEP and all that before you can do that. VICE-CHAIRMAN LEHMANN: I'm going to change Ms. Dusek's scenario around a little. Let's say I build a sea wall to the end of my property line and I put a wood walkway on top of that and then I put davits in there, cleats that I could tie a boat to, do I have a dock or sea wall or what? MS. ARNOLD: Well, you would have a sea wall with a walkway. Page 35 July 26, 2001 VICE-CHAIRMAN LEHMANN: A sea wall with a walkway, which is a different type of structure; is that correct? MS. ARNOLD: Yes. And now with the -- the -- you know, putting pilings in would be -- you would have different requirements because even with the -- VICE-CHAIRMAN LEHMANN: There's no pilings. I just have a sea wall and some place to tie a boat to. MR. PONTE: Cleats on top of it. VICE-CHAIRMAN LEHMANN: Cleats. MS. TAYLOR: But a dock is a platform where you load or unload a vessel, and a boat is a vessel; correct? MS. CURATOLO: Based on the definition. MS. TAYLOR: But that's what it is. VICE-CHAIRMAN LEHMANN: Mr. Kelly. MR. KELLY: Okay. It's my belief that you have a permit here issued for riprap and a dock that were it to have been a sea wall, it would have said sea wall, and it would have had to apply to meet the sea wall ordinance in effect at that time. The permit clearly shows riprap and dock. As far as it being a deck, were it constructed as a deck, they're alluding to the fact that a permit would not have been required for a deck. I would point out that this is an elevated structure and, for safety concerns, that it is in the air, that it is supported on pilings. Yes, it would have required a permit. VICE-CHAIRMAN LEHMANN: Well, I'm trying to get back to the general reasons why we're here. First off, this board cannot grant a variance to any of the ordinances, so I don't even want to hear discussions about variances or things of that nature because that's not why we're here. But we are here to determine whether a violation does occur, and part of that is to define what's happening here, and that's kind of where I'm heading with this thing. MS. DUSEK: I'm quite disturbed that they were issued a permit Page 36 July 26, 2001 20 years ago and nothing has been done until now. MS. GODFREY-LINT: Because there was an anonymous complaint made. That's the only reason. MS. DUSEK: It just disturbs me. MS. TAYLOR: And that's beside the point. That's beside the point, what happened 20 years ago. It's what's happening right now. VICE-CHAIRMAN LEHMANN: Well, I agree. I mean, if-- if the county issues a permit in error and doesn't discover its error for 20 years, I think it has the right to go back and have that error corrected. If it -- if it issues a permit under one condition, the ownership of the property changes which changes the condition of the permit and makes that permit now no longer valid and the county isn't aware of that as far as department to department, they still have the right to go back and correct that error. I think that's what we're dealing with in this case. We have a permit that's issued in '81 that permits a dock, and I believe that the original dock was built per the permit. MS. DUSEK: But apparently that's -- that should never have been issued in '81, and that disturbs me. I realize we -- MS. SAUNDERS: It was legal in '81. VICE-CHAIRMAN LEHMANN: It was very valid. MS. SAUNDERS: It was a very valid permit. It was a perfectly legal justifiable permit. It did not have to have a structure on the property or anything else. MS. DUSEK: I understood that it was not. MR. LEIGH: I think that was -- that was not what Mr. Kelly said. I believe he said it had to have a structure at that time. MS. CURATOLO: I need clarification on that. Did it, in fact, have to have a structure in order for the permit to be granted? MS. ARNOLD: Yes. They needed a principal structure on the property to get the dock permitted to begin with. I -- just on my -- I Page 37 July 26, 2OO 1 was just out conferring with the property appraiser's office to determine when the principal structure on Mr. Pallis's lot was constructed. They've indicated to me that as far as they could tell -- because it was quite confusing to the person that I was talking to because there was writing on there, and it indicated improvements back in '87 as well as modifications in '89. As far as she could tell, the only permit that she was able to assess for the principal structure that's there today was done in ninety -- it was issued in '96. So there's some confusion as to whether or not there was actually a principal structure on the property in --'97 (sic) is what her records indicate that this dock was built. But I asked her to fax me the information that she was referring to, and I'm hoping that the board's office will bring that in as soon as we get it. MS. DUSEK: So the permit was issued incorrectly. MS. ARNOLD: There's a possibility that it was issued incorrectly. And the thing is the records back then don't indicate whether or not it was ever CO'd either. We know from the records that there was a permit issued for a dock and riprap, and that permit was approved back in '81. VICE-CHAIRMAN LEHMANN: But you're saying you don't have a certificate of compliance -- or completion. MS. ARNOLD: Right. MR. LEIGH: I think it was that the records weren't clear. It's not an indication of whether there was or was not a CO issued, if I heard correctly. MR. KELLY: There would be a clear indication that there perhaps was not a CO issued given that the 7 1/2-foot setback on Lot 12 didn't exist. VICE-CHAIRMAN LEHMANN: Mr. Leigh, do you have any evidence that would substantiate the fact that a CC or a CO did exist? MR. LEIGH: I do not, sir. Page 38 July 26, 2001 MS. ARNOLD: The possibilities exist that the permit was issued in error because there was no principal structure, but there was -- there's no information to tell us that we could have caught that error upon an inspection of the dock because the permit was issued with a setback of 7 1/2 foot on either end. The way it exists today, there is no setback of 7 1/2 foot on either end encompassing all three lots. But as you -- as the chairman indicated, what we're bringing to you today is the fact that our codes have said that without a principal structure, you're not allowed to have accessory structures. There are two lots with no principal structures on them, and it's our opinion that the structure in question, whether it's considered a deck or a dock, is an accessory structure and, therefore, should not be there. MR. PONTE: I have a question for Mr. Leigh. Do you have any case history or authority that you can cite that supports the points you've made in No. 4? MR. LEIGH: As Ms. Student stated to you, I have seen those cases. I don't have them here to cite to you today or a specific citation. I have -- as I've looked through, there are multitude of-- there are cases going the way she says, and there are cases going the other way that say a government agency can be estopped. It just all depends on what the circumstances are. And one of her comments was that it wasn't necessarily that they could -- they cannot necessarily be estopped from doing it. The necessarily is the key factor there. It depends on the particular issues involved. You know, for instance, I'm saying here how long was the nonenforcement? Should it have been caught before? What's the detrimental reliance? There are a number or factors that are involved here. I agree with her that there are cases that say that the county is not estopped. There are others that say the county would be estopped. I don't have those here with me. Page 39 July 26, 2001 MS. STUDENT: Well, there's a whole line of cases, and generally -- again, Marjorie Student, assistant county attorney for the record. Generally when there's been a change in the law and a developer is at a certain stage of development and the rules change but he's relied and gotten plans made and maybe done some site work on the old rules and then there's new rules -- ! mean, there's no bright line for this, so this is very frustrating to attorneys, believe me, that you can't just draw a bright line and say you're on that side, and you're okay; and you're on this side, and you're not okay. So the courts look at all the factors involved, and those are the ones -- and why I said, you know, not necessarily. However, when a building -- when there's been a -- and then the building permit cases go in the line of mistake of law and mistake of fact. And if there's a mistake of fact, there may or may not be an estoppel. When there's a mistake of law, again, there usually is not because mistake of law, that would mean you could drive a truck through your regulations if you made enough mistakes. But I'm not going to stand here and unequivocally say that is 100 percent the case. What we lawyers do, as Mr. Leigh, I know, will readily agree, is we look for cases that have similar fact patterns to the issues that we have and see how the Court ruled in that type of case and then what's called -- when it's on all fours, and then we use that case as a foundation for our arguments. MR. LEIGH: Yes, I do agree with that. And it is a matter of having no bright line. I looked for a case that is on all fours here, and I didn't find a case that was on all fours in either direction. So I can't tell you that I found a specific case to cover this situation. But it's a question of what the behavior was, how much detrimental reliance there was. What I have are some clients out here who have spent quite a bit of money purchasing these lots in reliance Page 40 July 26, 2001 on the fact that a dock was there. They thought it had a dock, and it looked like a dock, and it had been there for many years, and they had no reason to believe otherwise. And so they've made a substantial investment in this property and that investment will be significantly diminished if they have to remove these docks. VICE-CHAIRMAN LEHMANN: Mr. Leigh, in your testimony just now, you referred to it as a dock. MR. LEIGH: Well, that's because everybody else talked about it as a dock. It's a deck. It's a -- it's a -- you know, the legal characterization is just -- I mean, it's something we're arguing about. We can call it a wooden sidewalk, I think, would be just as well or a walkway or a patio of any number of designations. The reason we started referring to it as the deck is because -- as a deck is because Ron Nino referred to it that way in his memo. He talked about whether it's in a navigable waterway and so forth. And his memo indicates, I believe, that while -- there's a width for the canal, and then there's an easement width beyond that. But this -- this is not in or over the waterway. This is over the property of the respondent. So, yeah, I slipped on my terminology, and I apologize. We would generally -- we would generally look at this and think of it as a dock. I'm not going to try to make a silly argument to you, but what I'm saying is the legal definition of it does make a difference. And even though we might -- we might generically call it a dock, that doesn't necessarily make it a dock in terms of zoning -- you know, of enforcement of zoning ordinances. That's what I'm arguing. It would look like a dock to you. We can put -- but we can put boats up alongside a sea wall that's filled in right up to the sea wall too, and we call it a dock. But, as Ms. Arnold said, that probably wouldn't be a dock. That would be a sea wall with a walkway over it. So just -- just mooring the vessels there doesn't routinely make it a deck for legal purposes. I understand it would be -- we would look at it and Page 41 July 26, 2001 call it a dock, but it doesn't make it that for this purpose. MS. TAYLOR: That's what the dictionary says. The dictionary says that a deck is a platform where you unload from or you load a vessel. A boat is a vessel. You're looking out in here. I'm over here. MR. LEIGH: I couldn't tell who was speaking. I'm sorry. MS. TAYLOR: Did you hear what I said? MR. LEIGH: If you would, repeat that again. I -- MS. TAYLOR: The dictionary says that a dock is a platform where you load -- unload from or load a vessel. A boat is a vessel. MR. LEIGH: Well, I don't disagree with you on that, that the dictionary would say that. I think in that situation the -- you go to the dictionary -- as Ms. Student said, I believe, you go to the dictionary when your definitions in the code don't cover it. And your definitions in the code do cover it. It says in or over a waterway, and we're not on or over a waterway. We're -- there's some water underneath it, but we're not in the waterway. We're on our own property. There happens to be water there, but it's not over a waterway as such. When there is a definition within the code, you don't have to go to the dictionary to find that definition. MR. PONTE: I think we're getting a little far afield -- VICE-CHAIRMAN LEHMANN: I agree. MR. PONTE: -- and that what we really should be doing is focusing directly on the ordinance, in enforcing the ordinance as it stands, even though we may be very sympathetic to the logic that's been put forward, that we have to just look at the -- at the law, the ordinance, as written. VICE-CHAIRMAN LEHMANN: May I see -- is it possible, Ms. Student, for me to see in written language what the ordinance defines a deck or a dock as? I know you've read it into the record, and I'm one of those guys that-- MS. STUDENT: I'm going to approach the chair with the Page 42 July 26, 2001 definition. MS. RAWSON: And I think that's the definition of a dock, and there is not a definition of a deck in the ordinance. MR. PONTE: Or the dictionary. MS. SAUNDERS: If I may make a few comments while you're -- VICE-CHAIRMAN LEHMANN: Please. MS. SAUNDERS: Is that okay? I think this is a very unfortunate case. I commend Michelle and John for investigating it because it was an anonymous complaint, and I understand that's what code enforcement has to do. On the other hand, I think that the Code Enforcement Board's responsibility is to deal with situations with compassion and common sense as well. To me, the dock is not -- the dock, deck, structure, platform is not dangerous. It's not doing any harm. It's there. Everybody agrees, that owns the property, that it's fine and they want it there. I see no value whatsoever in our helping any property owner any -- our codes or anything else in taking this down for any reason. It doesn't seem to serve the county or the property owners or the safety issue. I believe it was legally put in in 1981. That was 20 years ago. I believe that the property was divided in 1996, '97, whatever, and that's, perhaps, what made it questionable. It doesn't matter to me. I don't think there's a violation. I don't -- and I don't think we serve the county or the constituents of the county by finding a violation in this case. MS. TAYLOR: We don't serve the county if we don't find a violation. VICE-CHAIRMAN LEHMANN: please. Well, let me respond to this, MS. ARNOLD: Can I just add some information? A part of what was retrieved from our archives along with the permit that was Page 43 July 26, 2001 issued is a card that is developed, and the manual remarks are placed on that card in the event of an inspection. The card has been retrieved. It has the lots' numbers, the block number, the riprap and dock as a description of the information, and the date, with no remarks whatsoever with respect to inspections that were completed on that particular dock. VICE-CHAIRMAN LEHMANN: So we're assuming that no inspections were being -- were completed; is that correct? Let me -- let me just respond to what my good -- MS. GODFREY-LINT: Can I ask you something? VICE-CHAIRMAN LEHMANN: Let me respond, first, to what my colleague had said. First off, as far as -- in my opinion about this, as far as whether the permit was issued properly or not, I'm of the belief that it was not. And, furthermore, it was never CO'd, or as you say, we don't have inspections. If we did have an inspection or we did have a CO, we would find out that it still would not be in compliance just because of setbacks alone. Whether it's a dock or a deck or however you want to call it, it doesn't really matter. Secondly, it is not this board's position to be able to grant variances. And I think that's what -- with all respect, I think that's what you're asking the board to do. It is our position here to find a finding of fact of whether a violation does exist and then to achieve compliance. If the respondent chooses to go the route of the variance, then he needs to address another body, not us. So, you know, having said that, I'll let you ponder it. MS. STUDENT: I'd just like to add again for the record that we have a responsibility that our ordinances are applied and enforced in a uniform manner, and the county runs into problems if there are selective enforcement issues. I just wanted to put that on the record to kind of flesh out what you -- VICE-CHAIRMAN LEHMANN: That is not why we -- that is Page 44 July 26, 2001 why we are not granted the right to grant variances, frankly. MS. DUSEK: Ms. Student, I know that you've read the definition of the dock from the ordinance twice. I just wonder, again, if you could tell me if the dock over their own property, not over a waterway, defines the dock. Well, Peter just handed me this, so I guess I-- VICE-CHAIRMAN LEHMANN: Let me make a comment to the definition again. The definition discusses the usage of the dock. MS. STUDENT: Yeah. It says walkway is included and -- MS. DUSEK: That's good enough. VICE-CHAIRMAN LEHMANN: And, in my opinion, the usage as it is being used, as we've seen in the photographs, would define it as a dock, not as a deck, simply because there are boats tied to it. MS. DUSEK: Well, this says in or over a waterway. MS. STUDENT: Right. And then it goes on to state that that includes docks, walkways, piers, mooring pilings, boathouses, and the like. And if the land is somehow brought out and -- I think that it would probably be a lot more trouble to do that than to comply but -- because you have to go through all kinds of things with the state agency in order to be able to do that. MS. DUSEK: I guess my question is, is this sitting -- whatever we're calling it, is it sitting over a waterway, or is it sitting over their property? MS. STUDENT: I believe that -- I am an attorney for the -- for staff in this. I believe you need to ask the inspector that question because he's the one that provides the competence -- factual, competent, substantial evidence for you to rely upon. VICE-CHAIRMAN LEHMANN: Ms. Dusek, if you look at page 16 -- MS. DUSEK: I realize it's sitting over water, but that doesn't Page 45 July 26, 2001 necessarily mean it's a waterway. VICE-CHAIRMAN LEHMANN: Ms. Dusek, if you look at page 16 of Mr. Pallis's case, it shows the survey, and it shows that within the lot line. It is within the lot line. MS. ARNOLD: There are properties that exist with property boundaries in the waterway. The physical appearance of the structure in question is over -- well, I mean, I think, as Ms. Student says, we need to ask the investigator. Is it over a water -- is it over water? And if Mr. Kelly can respond to that particular question. VICE-CHAIRMAN LEHMANN: Take a look at the photographs. MS. DUSEK: ! know it's over water. Is that the same? Does that mean it's a waterway? Do you understand? I'm trying get the definition of what waterway means. MR. KELLY: John Kelly. It would be my opinion that the structure, as it exists today, is over water, and the building code that was in force would have been to the most required setbacks and whatnot from the most restrictive point, which includes mean high water line. Yes, it's over water. I know it's over water. So water and waterway MS. DUSEK: are the same? MR. PONTE: No, they're not. MS. CURATOLO: Does it extend out beyond the owners' property line? MS. STUDENT: I think-- we don't have a definition of waterway in the code, but a way is something that you travel upon, whether it's by boat, foot, car, whatever. So a waterway is something you travel on, by boat, by pontoon, by Jet Ski, by whatever. And if you have a structure -- and you have to be able to bring your structure -- or excuse me -- your vehicle up to that mooring structure, so you would be traveling over the water, you know, right up to the dock, Page 46 July 26, 2001 structure. So anything that you use to travel over -- and this is just -- I don't even have the dictionary here for this, but just common layman's knowledge of what a way is, like a roadway. It encompasses the whole thing. MR. LEIGH: I'd respectfully disagree with that. A waterway is a waterway. If they had said over the water -- if they had meant over the water, they would have said over the water in the ordinance when they drafted it. It says a waterway. And a waterway -- a navigable waterway does not include private property as the public navigable waterway. I admit it doesn't say navigable in the statute, but it doesn't say over the water. It says over a waterway. Ron Nino's memo addresses that, and I believe his memo indicates that this is -- you know, that this thing, this sidewalk, this whatever it is, is -- this wooden thing is not in the canal. It's on private property. It's not in a waterway. MS. DUSEK: I'm in agreement with Mr. Leigh. MS. TAYLOR: But it's a dock. It's a dock. That's all there is to it. It's a dock. You said it yourself. It's a dock. Now we're just muddying the waters, is what we're doing, by just hashing over and picking up this little stuff. It's flat out-- it's a dock. MS. STUDENT: And I would just say that -- MR. PONTE: Well, let me-- sorry. MS. STUDENT: -- we have issues where we do dock-- extensions of dock facilities, and maybe part of that dock facility's in somebody's, you know, private property area because part of the property's submerged and so forth. And I've never heard this distinction being made in any -- MR. PONTE: I just want to cite Ron Nino's memo of March this year in which he says that the alleged dock -- the alleged dock -- is in the canal easement area and, for that reason, may not constitute a Page 47 July 26, 2001 dock. MS. STUDENT: I just -- a waterway -- you can have all kinds of easements and whatnot over a way, and it doesn't take away from the fact that it is either a roadway or a waterway. But, again, it is this board's purview to make that determination based upon all the evidence presented today. MS. GODFREY-LINT: Ms. Arnold, may I ask you a question? Is it not the responsibility of the property owner who pulled the permit to put the dock and/or walkway in to notify the county so a final inspection can be made and, therefore, a CO issued? MS. ARNOLD: That's correct. MS. GODFREY-LINT: So if they had called the county and informed the county that they had completed their work and they wanted final inspection, there's a possibility at that time they would not be -- they would have had to have changed the dock/deck? MS. ARNOLD: That possibility exists. I don't know what -- where the board is with -- with the respect of whether or not this structure is a deck or a dock. I have a suggestion, and it's been suggested by the county attorney's office. We were not given the information presented to you by the counsel for the respondent to prepare any responses to -- to give you, actually, those case studies or those cases that have been ruled upon to determine whether or not this structure should be considered nonconforming or estopped or anything like that. The county attorney's office can prepare something for your information. You can kind of table this issue. If that's -- if that's -- if that's something that's kind of confusing to the board, we can provide that information to you at a later date, and then you could make your decision upon reviewing that -- that paper prepared by the county attorney's office. If-- if that's not an issue for you -- and I'm of the opinion a deck or a dock, it doesn't matter. It required a permit, and Page 48 July 26, 2001 the permit needed to be completed through the -- its entirety. The code also said that accessory structures are not permitted on unimproved properties, and we have those conditions on two lots, regardless of whether you want to call that structure a deck or a dock. And I think those two structures should be removed because it's -- there's no principal structure on there. VICE-CHAIRMAN LEHMANN: I'm going to take a step backwards and draw the board's attention to the affidavit of violation or the violation itself, and we are referencing Section 1.5.6 of Ordinance 91-102 and others, and I'll get to that. But Section 1.5.6 specifically addresses that "No building or structure, or part thereof, shall be erected, altered, or used, or land or water used, in whole or in part, other than specifically permitted by the provisions of each zoning district in this code, unless otherwise provided." To me, that means a permit is issued, inspections are made, and a CO is issued, and then it's allowed to be used. I don't see any evidence that a permit has been finalized in this particular case, either from the staffs case or from the respondent's case. The next case that we're look -- the next violation that we're looking at is 2.6.21.2.4 of the same ordinance, and that does go into the dock issue. So, again, just to bring us back on to base, those are the issues we're looking at. Any definition of dock, deck, setbacks, whatever, are really being looked at in light of these two particular violations that the county is alleging the respondent has committed. I am -- I personally am not -- I don't have any problems with finding a violation of the first section, 1.5.6, simply because, in my opinion -- and this is solely my opinion -- is that we do have a use that is occurring without a permit and a CO that's been applied. MS. ARNOLD: Mr. Chairman, I believe Patrick White with the county attorney's office may have a statement. MR. WHITE: Thank you. As Michelle mentioned, I am Patrick Page 49 July 26, 2001 White, assistant county attorney. And, unfortunately, it seems we're tag teaming you with attorneys today, but hopefully what we'll be able to do is provide a synthesis of all of these opinions you're receiving that'll help in your ultimate determination. And the only reason I've chosen to comment is in reference to the memo that was created, the e-mail, by Mr. Nino to Ms. Arnold. And part of the analysis -- and I respect Ron as a planner, but when it comes to legal issues, that has to be deferred to our office, and certainly that's why I'm choosing to comment, because I think this is a legal issue and certainly worthy of comment. And the fact of the matter is, if you look on the survey, you'll see that there's a dashed line along the easterly portion, I believe it is, that says canal line. And I think that that canal line references, if you will -- or is cross-referenced to, if you will, the discussion that Mr. Nino has in his e-mail about an easement. Now, I don't think there's anything that can be quibbled about whether an easement is a way or not. And if it's a canal line, I submit to you for your consideration that it is the type of an easement, a canal easement, that is a waterway and certainly susceptible to the conclusion on your part, as a matter of a factual finding, that it is over a waterway. And when you buttress that with the fact that it is immediately contiguous to and may indeed, in fact, at certain times of water flow, have water beneath it, it seems to me an inescapable conclusion that it is, indeed, more correctly considered to be a dock than a deck. And I appreciate your time to listen to what I have to say. Thank you. VICE-CHAIRMAN LEHMANN: Any other questions from the board to either the respondent or the staff?. None? Okay. At this point in time I would close the public hearing on this particular case and open the floor for discussion. MR. PONTE: I think that we reluctantly have to find a violation Page 50 July 26, 2001 just to -- it's a -- it really is quite simple if you just stay focused right on the facts. And although emotionally and logically I'm -- I certainly understand the other side, that's not our position here. I think we don't have an option. VICE-CHAIRMAN LEHMANN: I would agree with my colleague. And, again, I think it's very important for the board to understand why we're here. And I keep reiterating this, but we are here to find whether a violation occurs or not, not whether we agree with the respondent's position as far as all of the circumstances that go into it. And I agree with my colleagues. I think in this particular case we do have a violation of both sections because I think we do have a dock here. I don't think we have a deck. And I think that the -- the use of it is unpermitted at this particular point. MS. DUSEK: If I might comment-- VICE-CHAIRMAN LEHMANN: Please. MS. DUSEK: -- I think that there is a violation in the fact that they don't have a permit for a structure, but I personally still question the violation of 2.6.21.2.4. As far as I'm concerned, that could be interpreted differently. So if we do cite the violations on both, I will have to vote against it because I feel there is a violation for no permit, but not as the dock is defined, over a waterway. VICE-CHAIRMAN LEHMANN: Well, I would move -- or I would entertain a motion for a finding of fact one way or the other. Nobody wants to volunteer? MS. SAUNDERS: I won't make a motion, but I will say that I respectfully disagree with some of my colleagues. I do not believe that there is a violation. I think we've heard very conflicting testimony. I think we've put these property owners through quite a bit of expense for no reason. I realize our requirement is to enforce the codes of Collier County, but there's some question here on which codes were violated or not violated; if they, indeed, were; if it's Page 51 July 26, 2001 estopped because 20 years have gone; if it's changed because a property owner initially did something and then 15 years later changed -- sold the property, and that made the violation. I think there's too many legal issues for us to unanimously decide that there is a code violation 20 years after the fact. MS. TAYLOR: That's why we vote. MS. SAUNDERS: That's why we vote. Exactly. MS. TAYLOR: Peter, why don't you-- VICE-CHAIRMAN LEHMANN: Well, just to, you know, kind of move things along, I would make a motion, then, that in this cases of-- MS. DUSEK: We have to do this individually. VICE-CHAIRMAN LEHMANN: May I make a joint motion, or does that have to be individual? MS. RAWSON: One of the cases cites three alleged ordinances -- violations. The other two only cite two, and so probably just to be clear, why don't you make three different motions. VICE-CHAIRMAN LEHMANN: All right. We'll take these in order, then. In CEB Case No. 2001-026, Board of County Commissioners versus James M. Hail, we have a violation of Sections 1.6. -- excuse me -- 1.5.6 and 2.6.21.2.4 of Ordinance 91-02 (sic) as amended, Collier County Land Development Code. The description of the violation would be the existence of a wood dock located on unimproved property that runs the length of Lots 10, 11, and 12. MS. DUSEK: You would have to put unpermitted, I would think, in that description. VICE-CHAIRMAN LEHMANN: Well, I'm just citing a violation of the code, whatever the code -- whatever the ordinance states. MS. DUSEK: I would like to -- Page 52 July 26, 2001 MR. PONTE: In the description of the violation it says -- that you've just read, that says "unimproved property that runs the length of Lots 10, 11, and 12," but one of those is improved. VICE-CHAIRMAN LEHMANN: Yes. And on this thing we can't cite a violation of somebody else's property also, so it has to be the particular lot; is that correct? MS. RAWSON: Yes. You can't make the landowner of one lot correct the violations on other lots. VICE-CHAIRMAN LEHMANN: Okay. Let's amend that to refer to Lot 11 only. MS. DUSEK: I would like to amend your motion to eliminate 2.6.21.2.4. VICE-CHAIRMAN LEHMANN: I would not be agreeable to that amendment. MS. TAYLOR: Nor I. MS. GODFREY-LINT: Nor I. VICE-CHAIRMAN LEHMANN: Do we have a second? MS. GODFREY-LINT: I'll second that one. VICE-CHAIRMAN LEHMANN: Ms. Godfrey has seconded the motion. All those in favor signify by saying aye. MR. PONTE: Aye. VICE-CHAIRMAN LEHMANN: Aye. MS. TAYLOR: Aye. MS. GODFREY-LINT: Aye. VICE-CHAIRMAN LEHMANN: Any opposed? MS. SAUNDERS: Opposed. MS. DUSEK: Opposed. MS. CURATOLO: Opposed. VICE-CHAIRMAN LEHMANN: We have two opposing? Three opposing? Could I have a show of hands on the aye votes again? Okay. We have four ayes and three opposing. The motion Page 53 July 26, 2001 passes. If we might have an order of the board. My comment to the board at this point in time is, as my colleague had said, this is not a very pleasing kind of motion. But I would take into account all the testimony we had as far as the order of the board and consider all aspects of it when you make your order. MS. SAUNDERS: I would say, since we're -- we've now condemned this to a major legal fight, I would believe, and the attorneys will need time to research and prepare whatever they're going to in whatever way they're going to, that we give them six months or a fine of $25 per day for every day the violation continues after six months. MR. PONTE: I would second that, if that's a motion. MS. SA UNDERS: That's a motion. MS. DUSEK: And come into compliance, period. MS. SAUNDERS: Just come into compliance, period, not by removing the structure. VICE-CHAIRMAN LEHMANN: Does that include prosecution costs? MS. SAUNDERS: I would like to make it include, but include prosecution costs beginning from this day, not previous ones. And my reason, again, for that is I think there's been an inordinate amount of legal staff from the county and everybody else here, and I don't think that was fair to the -- that's fair, necessarily, the prosecution -- so I would say prosecution costs beginning today -- or beginning tomorrow. Excuse me. Let me amend that. Beginning tomorrow. VICE-CHAIRMAN LEHMANN: Ms. Rawson, we would not have any prosecution costs beginning today because the case, in essence, is over. MS. RAWSON: I don't believe there'll be any further investigation. I think that's true. You probably need to make a Page 54 July 26, 2001 motion either to eliminate prosecution costs or not eliminate them. MS. SAUNDERS: Unless there's an appeal. MS. RAWSON: Which is a whole separate action. MS. SAUNDERS: Okay. Then I say I -- my motion would be to remove prosecution -- eliminate prosecution costs. Do you agree? MR. PONTE: I agree. Second. VICE-CHAIRMAN LEHMANN: Okay. MS. TAYLOR: I disagree. VICE-CHAIRMAN LEHMANN: We have a motion and a second. All those in favor -- and let me repeat that. That motion is that the CEB order the respondent to pay -- excuse me. The CEB order the respondent to come into compliance within six months or a fine of $25 per day for every day the violation continues to exist. We have a motion and a second. Any further discussion? None? All those in favor signify by saying aye. MS. TAYLOR: Wait, wait, wait. You forgot to put on there that she wants to eliminate prosecution costs. VICE-CHAIRMAN LEHMANN: We did. MS. TAYLOR: I didn't hear that. VICE-CHAIRMAN LEHMANN: that. Did you catch the votes? THE COURT REPORTER: No. VICE-CHAIRMAN LEHMANN: signify by saying aye. MS. SAUNDERS: Aye. VICE-CHAIRMAN LEHMANN: MR. PONTE: Aye. MS. CURATOLO: Aye. VICE-CHAIRMAN LEHMANN: MS. DUSEK: Yes. MS. GODFREY-LINT: Yes. I'm sorry. And I'm sorry. I didn't catch Okay. All those in favor Aye. Any opposed? Page 55 July 26, 2001 MS. TAYLOR: Yes. VICE-CHAIRMAN LEHMANN: We have four in favor and three opposed. The motion passes. Okay. If we can proceed on to Case No. 2001-027, Board of County Commissioners versus Frances L. Pallis. I would entertain a finding of fact, motion for a finding of fact. MS. TAYLOR: Peter? VICE-CHAIRMAN LEHMANN: Yes. Ms. Taylor, did you wish to comment? MS. TAYLOR: No. I just wanted you to go ahead. MR. PONTE: Brought the place to a stop. VICE-CHAIRMAN LEHMANN: Well, again, I entertain a motion for a finding of fact on this particular one. If no one is interested, I'll pass (sic) the motion. In the case of 2001-027, Board of County Commissioners versus Pall -- excuse me -- Frances L. Pallis, we do have a violation of Sections 1.5.6, 2.6.21.2.4, and 2.6.2.1 of Ordinance 91-02 (sic) as amended, the Collier County Land Development ordinance. The description is a wood dock extending from the rear of location east across to -- I should say the description of a dock extending from the rear of the property owned by Mr. Pallis. MS. SAUNDERS: Question, Peter. The 2.6.2.1 seems to be the location of an accessory building or structure. VICE-CHAIRMAN LEHMANN: Correct. Yes. MS. DUSEK: I just -- MR. PONTE: The way the description of that violation is written, it looks as if it would suggest Mr. Pallis is responsible for the entire dock when, in fact, he isn't. He's only responsible for that portion of the dock that is on his property. So maybe we just have to rephrase the description of the violation. VICE-CHAIRMAN LEHMANN: Well, my phrasing of the Page 56 July 26, 2001 violation was a wood dock extending from the rear of property owned by Mr. Frances L. Pallis, which more specifically entails Lot 12 only. MR. PONTE: Yes. MS. DUSEK: This is not considered a structure or an accessory building -- VICE-CHAIRMAN LEHMANN: Correct. MS. DUSEK: -- as 2.6.2.1 so states. VICE-CHAIRMAN LEHMANN: I would agree. I would amend the motion to eliminate reference to 2.6.2.1. MS. ARNOLD: Can I ask a question of clarification? Why is this not considered an accessory structure? MS. DUSEK: That was determined earlier, that a dock was not an accessory structure; is that not correct? And I thought a structure was something going up. If I misunderstood earlier ... MS. ARNOLD: The section says "'accessory structure' shall include detached and attached accessory use structures or buildings." So it clarifies that -- that it could be a use. I mean, otherwise, we wouldn't be requiring a permit if it's not considered a -- a structure. VICE-CHAIRMAN LEHMANN: I agree. In rereading the section, "the term 'accessory structure' shall include detached and attached accessory use structures or buildings notwithstanding the attachment of such structure or building containing the accessory use to the principal use structure or building." The important part of this particular section is as follows, and I continue: "Accessory buildings and structures must be constructed simultaneously with or following the construction of the principal structure and shall conform with the following setbacks and building separations:" MS. ARNOLD: And on the following page in your package, package (sic) 12, it indicates that these facilities are considered accessory uses -- use or structure. Page 57 July 26, 2001 MR. LEIGH: I'm becoming a little confused. I'm not trying to make any more arguments, but are we just talking -- about Mr. Pallis -- about coming within the setback requirements, not removing the structure? MS. ARNOLD: Yeah. I had a question with respect to the board's comment that Section 2.6.2.1 should be eliminated from the motion because this is not an accessory use. I was asking a point of clarification. VICE-CHAIRMAN LEHMANN: Yes. And my review of that particular section would indicate that it is, and that section would be applicable, again, to the violation. We have a motion. Do we have a second to the motion at all? Hearing no second, the motion -- MR. PONTE: Could we -- would you restate the motion? VICE-CHAIRMAN LEHMANN: Certainly. We have a violation of Section 1.5.6 and 2.6.2.1 and 2.6.21.2.4 of Ordinance No. 91-102. MR. PONTE: I'll second that as a motion. VICE-CHAIRMAN LEHMANN: Okay. Having a motion and a second, any further discussion? No further discussion? All those in favor signify by saying aye. MS. TAYLOR: Aye. MR. PONTE: Aye. VICE-CHAIRMAN LEHMANN: MS. GODFREY-LINT: Aye. VICE-CHAIRMAN LEHMANN: MS. CURATOLO: Opposed. MS. SA UNDERS: Opposed. MS. DUSEK: Opposed. VICE-CHAIRMAN LEHMANN: opposed? Any opposed? We have two or three Page 58 July 26, 2001 MR. DUSEK: Three. VICE-CHAIRMAN LEHMANN: Three opposed? The motion passes again 4 to 3. I would entertain an order of the board. MS. SAUNDERS: Well, I'll make the same motion that I made before, that the Code Enforcement Board order the respondents to come into compliance within six months or a fine of $25 per day for every day the violation continues to exist. MR. PONTE: I'll second. MR. LEIGH: Eliminate prosecution-- MS. SAUNDERS: I elimin -- I left that out of the motion. VICE-CHAIRMAN LEHMANN: We have a motion and a second. Any further discussion? Being no further discussion, all those in favor signify by saying aye. MR. PONTE: Aye. MS. GODFREY-LINT: Aye. VICE-CHAIRMAN LEHMANN: Aye. MS. SAUNDERS: Aye. MS. CURATOLO: Aye. VICE-CHAIRMAN LEHMANN: All those opposed? MS. DUSEK: Opposed. MS. TAYLOR: Yes. VICE-CHAIRMAN LEHMANN: We have two or three opposed? Thank you. The motion passes 5 to 2. We can proceed to the next case, Case No. 2001-028, Board of County Commissioners versus Kevin J. Thomas and Thomas W. Manring. I would entertain a finding of fact. MS. DUSEK: I guess it's you today, Peter. VICE-CHAIRMAN LEHMANN: I move that in this case of Case No. 2001-028, Board of County Commissioners versus Thomas -- excuse me -- Kevin J. Thomas and Thomas W. Manring that a Page 59 July 26, 2001 violation of Section 1.5.6 and 2.6.21.2.4 of Ordinance No. 91-102 does exist. MS. TAYLOR: I'll second that motion. VICE-CHAIRMAN LEHMANN: I have a motion and a second. All those in favor signify by saying aye. MR. PONTE: Aye. MS. TAYLOR: Aye. VICE-CHAIRMAN LEHMANN: Aye. MS. GODFREY-LINT: Aye. VICE-CHAIRMAN LEHMANN: Any opposed? MS. DUSEK: Opposed. MS. SAUNDERS: Opposed. MS. CURATOLO: Opposed. VICE-CHAIRMAN LEHMANN: We have two or three again? MS. RAWSON: Can ! have a clarification? You need to look at the violation again. If you're going to be consistent with what you've done in the previous order, are you only making this a motion on violation of Lot 107 VICE-CHAIRMAN LEHMANN: Yes. And I apologize. This is only for Lot 10. Do we need to revote that, Ms. Rawson? MS. RAWSON: Why don't you do that just so I'm comfortable. VICE-CHAIRMAN LEHMANN: Okay. All those in favor of the amended motion signify by saying aye. MS. TAYLOR: Aye. MR. PONTE: Aye. VICE-CHAIRMAN LEHMANN: MS. GODFREY-LINT: Aye. VICE-CHAIRMAN LEHMANN: MS. DUSEK: Opposed. MS. SAUNDERS: Opposed. MS. CURATOLO: Opposed. Aye. Any opposed? Page 60 July 26, 2001 VICE-CHAIRMAN LEHMANN: Motion passes 4 to 3 again. I would entertain an order of the board, please. MS. SAUNDERS: I move that the board order the respondent to come into compliance within six months or a fine of $25 per day for every day the violation continues to exist. MR. PONTE: I'll second. VICE-CHAIRMAN LEHMANN: We have a motion and a second. Any further discussion? Hearing none, all those in favor signify by saying aye. MS. SAUNDERS: Aye. MR. PONTE: Aye. VICE-CHAIRMAN LEHMANN: Aye. MS. CURATOLO: Aye. VICE-CHAIRMAN LEHMANN: Any opposed? MS. DUSEK: I oppose. MS. GODFREY-LINT: Opposed. MS. TAYLOR: Yes. VICE-CHAIRMAN LEHMANN: Motion passes 4 to 3 again. Thank you. Do you need to take a break? THE COURT REPORTER: Please. VICE-CHAIRMAN LEHMANN: If you wouldn't mind, we'll recess until 11:15. (A break was held.) VICE-CHAIRMAN LEHMANN: I'd like to call the Code Enforcement Board back to order, please. Maria, if you would, proceed with the next case. MS. ARNOLD: Mr. Chairman, we have a request-- well, we'd like to remove or postpone the Item No. F, Board of County Commissioners versus Parrimoor Development, LLC, to the next meeting because there was some information that we wanted to Page 61 July 26, 2001 clarify prior to hearing that. And the respondent was present earlier, and he's agreed to that continuance. VICE-CHAIRMAN LEHMANN: Ms. Rawson, do we need to vote on a motion of that nature or a request of that nature? MS. RAWSON: They have the right to remove it from the docket, and I believe that's what she's doing. And I know that you've approved the agenda, and she's amending the agenda, but I think that's within their prerogative. I don't believe it requires a vote. VICE-CHAIRMAN LEHMANN: Thank you. So noted. Let's remove that case off the agenda. We can proceed to new business. MS. ARNOLD: Okay. I'm going to have Maria provide you with a copy of this letter that I received, and this is related to the Ardner as well as the Thurstons' cases. What we're presenting to you today is a request for filing of an affidavit of noncompliance and imposition of fines. Those two cases were heard by the board back in February 22nd of this year, and at that time you-all found the respondents in violation. If you recall, it was the conversion of a storage into living area. They converted some storage area within a condominium to an office for both those structures and permits were not obtained. Actually, one permit was obtained but expired and failed to go through that process. And testimony was provided to you from Charlie Abbott, and he's the person that's writing this letter to you-all today. And in the letter it's explaining the delays that were -- that occurred as part of that permitting process. We've checked the record, and on -- let's see, both -- both cases obtained permits prior to the March 24th date that you-all required for compliance; however, on one of the cases, the certificate of completion was not issued until March 30th. The other one the certificate of completion was issued at a later date. According to Mr. Abbott, the work was completed, but additional Page 62 July 26, 2001 work was required of them by the fire department, and that's what delayed the completion of the project as you-all originally requested. There was additional work in addition to what he had already done. So, therefore, the complete work couldn't be CO'd in the time that you-all required it to be complied with. He's requesting that no fines be imposed for either of these cases, and that's up to you. And I would support that request; although we -- you know, this letter came to us last night. We didn't get that information until after we'd already sent the packets out to you. So what I'm recommending is slightly different from what you have in your packet. We would file the affidavit of compliance for the date indicated, but I would not request imposition of fines for the two documents. And then we will later, as a part of our reports, submit affidavit of compliances because to date -- as of today both jobs are in compliance. Do we have it? I'm sorry. I guess we have that report as well. So we do have those documents for your consideration today. VICE-CHAIRMAN LEHMANN: So you're requesting on both of these cases that the fines be waived? MS. ARNOLD: For the -- I can't recall whether or not we had prosecution costs. VICE-CHAIRMAN LEHMANN: And you're leaving prosecution costs, but just the fines; is that correct? MS. ARNOLD: Well, I'm -- at this point it's up to you-all with respect to the prosecution costs. That was in your -- your -- but I'm referring to the per-day cost of $50 per day. I would support not imposing those costs. MS. TAYLOR: I would like to make a motion that we follow staff's recommendation except for the prosecution costs. I think they should be kept. VICE-CHAIRMAN LEHMANN: Well, let's take these Page 63 July 26, 2001 individually, again, if we can. Let's just deal with Case No. 2001- 001, Board of County Commissioners versus Karen R. Ardner. Do you have a motion with regard to that case, Ms. Taylor? MS. TAYLOR: I -- I recommend that we follow staff's recommendation except for the prosecution costs, that we file the prosecution costs. MR. PONTE: I'll second the motion. VICE-CHAIRMAN LEHMANN: We have a motion and a second that the fines be waived on this particular case but the prosecution costs still be applied. Do I have any further discussion? All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: (No response.) VICE-CHAIRMAN LEHMANN: Any opposed? Motion passes. Thank you. Let's go on to the next case. This is Case No. 2001-002. This is Board of Collier County Commissioners versus Fredrick and Susan Thurston. Do I have a motion on this particular case? MS. DUSEK: Michelle, your recommendation is the same on this case? MS. ARNOLD: Yes. MS. DUSEK: Well, I -- I make a motion that we follow staff's -- today's recommendation that the fines be waived except for the prosecution costs. MS. SAUNDERS: I'll second that. VICE-CHAIRMAN LEHMANN: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: Any opposed? (No response.) Page 64 July 26, 2001 VICE-CHAIRMAN LEHMANN: Motion passes. MS. ARNOLD: There is a third item on your new business that is Board of County Commissioners versus Andres and Olga Hernandez. At this time we are requesting that we file an affidavit of noncompliance and impose fines for the amount of a hundred dollars for the period July 1st, 2001, to July 3rd, 2001, plus prosecution costs of $538.78 -- I mean. 78 -- 583.78. MS. TAYLOR: I make a motion we follow staffs recommendation. MS. CURATOLO: Second. VICE-CHAIRMAN LEHMANN: We have a motion and a second. Any further discussion? All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: (No response.) VICE-CHAIRMAN LEHMANN: Any opposed? Motion passes. Michelle, we don't have any old business. Would you like to move on to reports? MS. ARNOLD: Yeah. The other two are just reports needing no action by the board, and they are for affidavit of compliances for those two cases previously referenced, the Ardner and Thurston cases. VICE-CHAIRMAN LEHMANN: Okay. MS. TAYLOR: What happened with the Horbals? MS. ARNOLD: There was a request from them to be heard by the board regarding the fines. I spoke with the Horbals as well as a representative that is with the building company that constructed the home, and they're in the process of removing the trees. I suggested that they come before you after compliance because as of today there really isn't any -- the trees are still on the property, but they are Page 65 July 26, 2001 intending to remove them. VICE-CHAIRMAN LEHMANN: Any comments? None? There being no further business, I would entertain a motion to adjourn. MR. PONTE: I'll second. MS. SAUNDERS: So moved. Second. MR. PONTE: Second. VICE-CHAIRMAN LEHMANN: All those in favor signify by saying aye. (Unanimous response.) VICE-CHAIRMAN LEHMANN: (No response.) VICE-CHAIRMAN LEHMANN: good aftemoon. Any opposed? The motion passes. Next meeting date is August 23rd. Have a There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11:26 a.m. CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 66