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CEB Minutes 09/26/2002 RSeptember 26, 2002 COLLIER COUNTY CODE ENFORCEMENT BOARD REGULAR MEETING Naples, Florida, September 26, 2002 LET IT BE REMEMBERED, that the Code Enforcement Board of Collier County in and for the County of Collier, having conducted business herein, met on this date at 1:00 p.m. in the County Commission Meeting Room, 3301 Tamiami Trail East, Naples, Florida, with the following members present: CHAIRMAN: ALTERNATES: PETER LEHMANN RHONA SAUNDERS KATHRYN GODFREY CLIFFORD FLEGAL ROBERTA DUSEK GEORGE PONTE GERALD LEFEBVRE G. CHRISTOPHER RAMSEY ALSO PRESENT: SHANELLE HILTON, ADMINISTRATIVE SECRETARY; MICHELLE ARNOLD, DIRECTOR OF CODE ENFORCEMENT; JENNIFER BELPEDIO, ASSISTANT COUNTY ATTORNEY; ALEXANDER SULEKI, CODE ENFORCEMENT INVESTIGATOR; JEAN RAWSON, CODE ENFORCEMENT BOARD ATTORNEY; JEFFREY LETOURNEAU, CODE ENFORCEMENT INVESTIGATOR; MARGARET WUERSTLE, Page 1 September 26, 2002 PLANNING DIRECTOR; JASON TOREKY, CODE ENFORCEMENT INVESTIGATOR; AND DAVID RIPICKY, CODE ENFORCEMENT INVESTIGATOR. Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA AGENDA Date: September 26, 2002 at 9:00 o'clock a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Collier County Government Center, Administrative Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY 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. 2. 3. 4. ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES - June 27, 2002 MINUTES August 22, 2002 MINUTES PUBLIC HEARINGS A. HEARINGS 1. BCC vs. Dov Dunaevsky, Registered Agent, DCM-NAPLES CEB NO. 2002-015 Location: Sapphire Lakes Alleged Violation: Building Permits; failure to remove trailer authorized as a temporary use; permit has expired 2. BCC vs. Victor A. & Isabel Valdes CEB NO. 2002-013 Location: Naples Manor Alleged Violation: Building Permits; adding an addition to residence and enclosing garage without obtaining a required building permit. 3. BCC vs. Carl Puchhas CEB NO. 2002-018 Location: Coconut River Estates Alleged Violation: Building Permits; constructing a boat dock without obtaining a required building permit. 4. BCC vs. Katrina Furth-Nead CEB NO. 2002-023 Location: Leawood Lakes Alleged Violation: Prohibited exotic plants, specifically Melaleuca, EarleafAcacia and Australian Pine. 5. BCC vs. Gordon Jackson CEB NO. 2002-022 Location: Rabbit Run Road Alleged Violation: Litter a huge accumulation of vegetative debris on property, approximately 500 dump truck loads. Most of debris appears to have been brought in from off site. 5. NEW BUSINESS A. Request for Imposition of Fines/Liens 1.BCC vs. Shad Davis Inc. 2.BCC vs. David and Zenaida Falato 3.BCC vs. Kathleen Sadlacek CEB NO. 2002-009 CEB NO. 2002-012 CEB NO. 2002-016 e B. Motion for Continuance 1, BCC v. Manatee Resort Condominium Association, Inc. OLD BUSINESS A. Affidavits of Compliance 1.BCC vs. Kathleen Sadlacek 2. BCC vs. David and Zenaida Falato CEB NO. 2001-086 CEB NO. 2002-016 CEB NO. 2002-012 7. REPORTS 8. COMMENTS A. New Hearing Dates for November and December: 1. November: 18th or 22nd 2. December: 16th or 20th 9. NEXT MEETING DATE October 24, 2002 ADJOURN 10. September 26, 2002 MR. LEHMANN: Ladies and gentlemen, I will call the meeting 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 therefore, may need to ensure that a verbatim record of the proceeding is made, to which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor Code Enforcement Board shall be responsible for providing this record. If we could have the roll call, please. MS. HILTON: Good morning, ladies and gentlemen. For the record, I would like to introduce myself. My name is Shanelle Hilton. I am the CEB coordinator. Peter Lehmann? MR. LEHMANN: Present. MS. HILTON: Roberta Dusek. MS. DUSEK: Here. MS. HILTON: Clifford Flegal. MR. FLEGAL: Present. MS. HILTON: George Ponte. MR. PONTE: Here. MS. HILTON: Rhona Saunders. MS. SAUNDERS: Here. MS. HILTON: Kathryn Godfrey. MS. GODFREY: Present. MS. HILTON: Sherri Barnett has an excused absence. She's the new member. Gerald Lefebvre. MR. LEFEBVRE: Here. MS. HILTON: Christopher Ramsey. MR. RAMSEY: Here. Page 3 September 26, 2002 MR. LEHMANN: Okay. We do have a quorum as we have one permanent member absent, Mr. Lefebvre will be voting today. Thank you. If we could have the -- approval of the agenda, please. MS. ARNOLD: We do have a request from -- I want to note, for the record, Michelle Arnold, Code Enforcement Director. We have provided you a revised agenda today. All the changes have been made, but there is a request to move Item 5B, Board of County Commissioners versus Manatee Resort Condominium, Inc. before the public hearing. So if you want to make that modification. MR. LEHMANN: Do we have any comments from the Board regarding that? I would entertain a motion to do that -- to do so. MS. DUSEK: So moved. MS. SAUNDERS: So moved. MR. LEHMANN: We have a motion and a second. All in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none, the motion carries. MS. ARNOLD: Do you want me to just go through the agenda? MR. LEHMANN: Yes. We would like to entertain a motion to approve the agenda as amended. MS. DUSEK: So moved. MS. SAUNDERS: Second. MR. LEHMANN: I have a motion and a second. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries. Let's move on to the approval of the minutes, please? We have minutes for June 22nd-- or excuse me, 27th, and August 22nd. I would just make note to the Board that we all got Page 4 September 26, 2002 promotions on the June 27th minutes. We're all chairman, so congratulations. You can have my job any day. Any other changes that we think we out to make to this? Hearing none, I would entertain a motion to approve both sets of minutes as -- as amended. MR. PONTE: So moved. MS. SAUNDERS: Second. MR. LEHMANN: Okay. We have a motion and a second. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none, motion carries. If we can move on to Item 5B. MS. ARNOLD: We have -- we have the -- one of the attorneys representing the Manatee Resort here. We also have Jennifer Belpedio, the Assistant County Attorney here. And then you've also been provided a memorandum from the Division Administrator for Community Development, from Joe Schmitt, indicating the division's position on that request for a continuance. MR. LEHMANN: Mr. Whitt, if you would like to proceed? MR. WHITT: Thank you. And just for the record, I've not received that memorandum, so I can't comment on that. We have, again, moved to continue this code enforcement matter. This is probably the fourth time we have been here, pushing this down the road-- thank you, Michelle. The last time we were here, we advised the Board that we had filed a variance application with the county, dealing with the size of the condominium units, and also dealing with -- with the use. It went before the Planning Commission. Page 5 September 26, 2002 Hopefully, the Board of County Commissioners, the Commissioners said they were going to deny the variance. What they indicated was they wanted to see a change in use from transient -- excuse me, hotels/transient occupancy, to residential. So that is now making its way through the system, and that is scheduled to be heard by the Board of County Commissioners on October 22nd of 2002. So if they approve that, then this whole thing goes away. Because they could have the 19 units. You no longer have the size problem because it's residential. You no longer have the use problem dealing with the transient occupancy. So we would like to have this pushed, I think your next meeting is October 24th, and either the county is going to approve it or we need to get the thing at issue and resolved one way or the other by this Board, so I don't have to keep billing my client and coming in here and continuing and continuing this case, so -- MS. DUSEK: I have one question for you. MR. WHITT: Yes, ma'am. MS. DUSEK: In the event, and hopefully it doesn't happen, that they do not approve the change, would you be prepared for our next meeting? MR. WHITT: The only thing I -- to answer that question, yes. The only exception would be if, for example, there was some technical problem, where the county said, if we had this, there was something that could be fixed, either, you know, in an application for something with, you know, dealing with county staff, and they wanted to again, consider it. And it looked positive that, you know, with some minor change, then -- then they would approve the site development plan and allow for residential use. So I have to condition that and say, you know, Page 6 September 26, 2002 maybe, depending, but if we go before them and everything is proper and there is a discussion and they say, nope, we are not going to approve it, then we know how the county commission is going to -- to rule on the issue. And I think we're all going to have to come back and have you- all hear it and resolve it. Either there's code violations or there's not. MR. LEHMANN: And Mr. Whitt, you are specifically asking for a continuance for -- to our next meeting; is that correct? MR. WHITT: Yes. That is what is in our-- in our motion. MR. LEHMANN: In your motion. MR. WHITT: Okay. Mr. White is here. He's the attorney in our firm that's handling the site development plan change issue with the county commission, so we feel pretty confident that that's going to be resolved, one way or the other by the -- by the County Commissioners on the 22nd of October, so, yes, we would like to have it continued to October 24th. MR. LEHMANN: Any other comments? MR. FLEGAL: Yes, sir. I think I've been against almost every request for a continuance. This Board is independent of the commissioners. I think we should have heard the case, made a determination of finding of fact, issued an order, and then if one of the resulting methods of complying with our order is something from the Board of Commissioners, that's up to the Respondent. But it seems as though we're just here to wait for the County Board of Commissioners to do something. That's really not the object of this Board. Just a comment. MS. DUSEK: My opinion is if it can be resolved by the Board of County Commissioners, there is no reason to go through the process here, so I would like to make a motion. Page 7 September 26, 2002 MR. LEHMANN: Before you make a motion, do you mind if we hear from the county's side of it? MS. DUSEK: I'm sorry. I'm sorry. MR. LEHMANN: They probably would like to have something to say. I'm sorry. Mr. Whitt, are you finished? MR. WHITT: Yes. Yes. Thank you. MR. LEHMANN: Thank you. And if the Board could hold its comments until we hear from the county, please. MS. BELPEDIO: Thank you, Chairman. My name is Jennifer Belpedio. I'm an Assistant County Attorney with the Collier County Attomey's Office. As you have heard, there is a memorandum from the Division Administrator, Joseph Schmitt. It is his position that we should wait until the variance application is heard, and he does not have an objection to the continuance. One thing I would like to clarify is that Mr. Whitt has indicated if there was a change of use that was approved for residential, that the matter would go away. It would be resolved and there would be no need for further enforcement. At this point in time, if that were to occur, 18 units would be considered approved, not the full 19. I'm not quite aware of what the Respondents have proposed to the county to remedy that one unit. But perhaps, that may -- that may be resolved, but it -- it is not certain. But one thing that the Board should know is that our office is ready to prosecute the case if-- if that is the decision of the Board today. MR. LEHMANN: MS. BELPEDIO: MR. LEHMANN: Okay. Any other comments? No, I don't. Thank you. Thank you. My comments for the Board, I can certainly understand Mr. Flegal's comments about having a continuance on this case time after time after time. And I agree, we Page 8 September 26, 2002 need to be expeditious in what we do, but in this particular case, I strongly feel that by moving forward at this point in time, we may not only incur additional expense and -- costs to the taxpayers, but also, I want to make sure we on solid ground in what we're doing. If we take an action and then-- and then the Board of Directors basically overrules our action by providing a variance, we've wasted all of our time here. So my recommendation would be to grant a 30- day continuance on this one, and -- and then hear the case following that. MS. DUSEK: I make a motion -- MR. LEHMANN: Further discussions on the motion? MS. DUSEK: I make a motion that we grant the continuance to our next meeting in October. MR. PONTE: I'll second the motion. MR. LEHMANN: We have a motion by Ms. Dusek, second by Mr. Ponte. All those in favor, signify by saying aye. MS. SAUNDERS: Aye. MS. GODFREY: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. LEHMANN: Aye. Any opposed? MR. FLEGAL: No. MR. LEHMANN: Motion carries. Thank you, sir. MR. WHITT: I thank the Board. MR. LEHMANN: I would like to now open the public hearings section of this meeting. If we could proceed with the first item on the agenda. This is, I believe, Case Number 2002-023; is that correct? MS. ARNOLD: That's correct. Page 9 September 26, 2002 MR. LEHMANN: Okay. And I just advise our board members, you might have to shuffle your papers around to keep up with the changes in the -- in the schedule here. If you would proceed, please. MS. HILTON: Case Number 2002-023, Board of County Commissioners versus Katrina Furth-Nead, Registered Agent, Brown, Noltmeyer Co., Naples Holdings, L.L.C. I would like to ask at this time if the Respondent is present in the courtroom. MR. ENLOW: Yes, I am. MS. HILTON: Okay. Please note the Respondent is present in the courtroom. We have provided the Board and the Respondent with a packet of information we would like entered as Exhibit A at this time. MS. DUSEK: I make a motion that we accept the County's Exhibit A. MR. LEHMANN: We have a motion from Ms. Dusek. Do I hear a second? MR. FLEGAL: Second. MR. LEHMANN: Mr. Flegal seconded it. All those in favor, signiflf by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries. Please so note. (Whereupon, County's Exhibit A was accepted in the record and the meeting continued as follows:) MS. HILTON: The alleged violation is of Section 3.9.6.6 and 2.4.4, paragraphs one through twelve of Ordinance Number 91-102 as amended, and Section 6.9(E) of Ordinance Number 95-77 of the Leawood PUD. Page 10 September 26, 2002 Description of violation: Prohibited exotic plants, specifically Brazilian Pepper, Melaleuca, Earleaf Acacia and Australian Pine growing in open space, natural areas and easements. Exotic plant maintenance plan on file, but no work has been done since April, 2000. Location/address where violation exists, 5600 Radio Road, Florida, more particularly described as Folio No. 00400720003; name and address of owner/person in charge of location where violation exists, is Leawood Lakes; date violation first observed, February 19, 2002. Date owner/person in charge given Notice of Violation, February 22nd, 2002; date on/by which violation to be corrected, June 22nd, 2002; date of Reinspection, June 27th, 2002; result of Reinspection, the violation remains. MR. LEHMANN: If we could swear our witnesses in on this particular case. (Whereupon, witnesses were sworn and the meeting continued as follows:) MR. LEI-IMANN: Thank you. MS. HILTON: I would like to turn it over to the Code Investigator, Alex Sulecki. MR. LEHMANN: One second. Sir, if you would like to just have a seat, it would probably be more comfortable to you. MR. ENLOW: Okay. MR. LEHMANN: We'll give them a chance and then you'll have a chance to speak your word. MS. SULECKI: For the record, my name is Alexander Sulecki, Good morning, Mr. Collier County Code Enforcement Department. Chairman, Board Members. THE BOARD: Good morning. Page 11 September 26, 2002 MS. SULECKI: This is a typical PUD exotics case. It may seem confusing in your packet because there are some references to lake vegetation. Please disregard them. That portion of the case has been resolved for the time being. What I'm bringing before you today is simply the exotic plant portion of the case. This is about exotics in open spaces, natural areas, preserves and easements. Brazilian Pepper, Australian Pine, Earleaf Acacia, primarily. You have a copy of the NOV. On review, there is also an amended NOV. This was done to add two overlook tracts and to require a maintenance plan. The management -- or maintenance plan in your packet was from a previous owner. This case started in February, but staff was actually in contact with the property owner, via the project manager, who is here today, Mr. Enlow, in August of 200 ! as a courtesy visit. Staff had advised Mr. Enlow that the exotics must be removed during the upcoming dry season. My case was opened in February in response to notification from the Planning Department via a PUD Monitoring Report, that the PUD was out of compliance on environmental commitments. And I have put up an areal of Leawood Lakes, which is right here(indicating,) and I have colored in the areas in black that are -- I'm concerned about. The front areas and the middle, and at the rear. These are the preserve open space and easement areas. In February, I talked to Mr. Enlow on site, explained the issue and issued a Notice of Violation, I think, the next day, amended it a week later, again, because I needed to add two tracts I had overlooked, and I wanted the new owner to provide a management plan. And I also required the removals to be done over the dry season, which was about four months, to be completed by June 22nd. During Page 12 September 26, 2002 the time between, I -- when I issued the notice and the June 22nd date, I made three site visits and numerous phone calls, checking progress, and each time was assured it would be done. As of yesterday and three more site visits and more calls, the work was not done, nor have I received a management plan. Over the summer, the exotics have continued to grow and release seed and the job is bigger. That's the rear preserve. The entire understory is Melaleuca. County staff time has been used, which costs taxpayers. So I'm requesting today that you find there is a violation and you require the exotics be removed, either root and all and cut, or cut and the stumps herbicided, and debris removed, and a new management plan be submitted by December 15th. I don't like to wait that long, but it's not a best management procedure to use herbicide during the rainy season. I'm also requesting prosecution costs and a fine of $75 a day if there is no compliance by that date. you. MR. LEHMANN: Thank you. That's all I have for you. Thank Any questions? MR. PONTE: I have -- I have a question -- MR. LEHMANN: Please. MR. PONTE: -- for -- for Ms. Sulecki. You mentioned all of the tracts, A, D, F and so on. How much acreage is involved here? You know, it looks like a vast area in all of the black areas but what are we talking about in terms of acreage. And the reason I ask the question is I wonder how long it's going to take to do the entire job. MS. SULECKI: We are talking about, maybe two acres, probably -- MR. PONTE: Pardon me? MS. SULECKI: Around two acres, probably. Page 13 September 26, 2002 MR. PONTE: Two acres? MS. SULECKI: I'm not exactly sure. I can't answer that specifically. MR. ENLOW: 1.7. MS. SULECKI: 1.7. MR. LEHMANN: And your estimate for corrective actions if they are so ordered-- MS. SULECKI: Yes, sir. MR. LEHMANN: -- time-wise? Your estimate for time for those corrections actions? MS. SULECKI: Yes, sir. MS. ARNOLD: December 15th is what she is recommending. MR. LEHMANN: Okay. Any other questions? Okay. Thank you. MS. SULECKI: Thank you. MR. LEHMANN: Mr. Enlow, if you would like to state your case? MR. ENLOW: Good morning, ladies and gentlemen. I represent Leawood Lakes. I'm the project manager out there. What Ms. Sulecki has said today is true. And we don't want to sound like we have been ignoring her -- her visits to the property. The county has been very cooperative with this. We took this project over a year ago last July, we purchased the property. And in the process of trying to get this project to move forward, that's been sitting for five our six years, the previous developer didn't finish the project, we selected to buy this project to bring in some affordable housing to Naples. As you know, there is not much affordable housing here. Well, since then, we have come across many problems, difficulties with the county, raise in impact fees and they have made Page 14 September 26, 2002 us re-do the lakes and none of this was exposed to us, of course, at the beginning, so we have inquired a lot of costs. And not to be here today to make excuses, because we should have got it done, and we do have a plan and if you would like, I have brought 15 copies for everybody to see. We have gotten three proposals over the past year from exotic removals from people, and they have gone from 3500 to 13,000. So we did -- we did some counseling some with people that know the business and asked them which one should we select because we don't want to hire somebody doesn't do the right job. And we're apparently going to select the one that's the highest one because he's got more of a thorough proposal and a management program over the next several years to manage this problem. We intend to move forward as soon as the weather permits us to do so, because I'm not sure of the date at this point, but at some point in time when the rain started, we could not remove the exotics. And I did have the proposal prepared then, but I apologize to the county for not getting it. I didn't realize I needed to get the proposal to them. I do run the project and sell the houses. We are under-staffed, but it's a project where we can't afford to hire a lot of people out there because it is an affordable housing project. So I would just ask the county to take that into consideration. We've got several million dollars in this project now. We've sold 28 houses. We are moving forward. We are trying to avoid this new impact fee that's going to be imposed on us in November, another six to eight thousand dollars. We're down to one house that's affordable now. It seems to appear that it's still selling, but we need to keep that under 128,000 to allow these people to afford to buy in there. Page 15 September 26, 2002 And in our PUD, also, we are required to do 40 lots that will be affordable housing, so what I'm saying is that we are going to have to go and permit every one of these lots. We've got 155 lots left we haven't sold. It's going to be an additional -- just under two million dollars for us, but if we don't do that, we won't be able to keep it affordable housing. So we will move forward as soon as the weather permits us to and go ahead and hire these people to do the exotic removal. MR. LEHMANN: Mr. Enlow, the county has recommended a drop-dead date of December 15th. Is that doable for your side also? MR. ENLOW: Yes, sir, it is. Yes, it is. MR. LEHMANN: Okay. Any other questions from the board for Mr. Enlow? Mr. Enlow, any other comments? MR. ENLOW: No, that's it. Thank you. MR. LEHMANN: Thank you very much. MS. ARNOLD: Could we be provided a copy of the proposal? MR. ENLOW: Absolutely. MR. LEHMANN: Okay. I would like to close the public hearing portion of this particular case and open it for discussions. That's all right, Mr. Enlow. Just hang on to this. Any discussions from the Board? MR. PONTE: Seems to me that both parties are in agreement, the Respondent and the County. I think we should simply follow the county recommendations. MS. DUSEK: I agree. I'm ready to make a motion. MR. LEHMANN: If you would. MS. DUSEK: I'd like to make a motion in the case of the Board of County Commissioners versus CEB Case Number 2002-023, Katrina Furth-Nead, Registered Agent, Brown, Noltmeyer Co., Naples Holding Company, Naples Holdings, L.L.C. Page 16 September 26, 2002 Leawood MS. MS. MS. MS. finished. I make a motion that there is a violation of Sections 3.9.6.6 and 2.4.4., Sections 1-12 of Ordinance Number 91-102 as amended. And Sections 6.9(E) of Ordinance Number 95-77 of the Collier County Land Development Code. The description of the violation is prohibited exotic plants, specifically Brazilian Pepper, Melaleuca, Earleaf Acacia and Australian Pine growing in open space, natural areas and easements. Exotic Plant Maintenance Plan on file, but no work has been done since April, 2000. I do have one question before we continue with my motion. And I would like a clarification on 6.9(E), if somebody could just generalize that particular ordinance. 'MS. SULECKI: The -- that ordinance is the PUD ordinance for Lakes. DUSEK: Excuse me? PUD ordinance -- SULECKI: PUD ordinance for Leawood Lakes. DUSEK: Okay. SAUNDERS: I will second the motion, if you were MS. DUSEK: Yes, I'm finished. MS. SAUNDERS: Okay. MR. LEHMANN: We have a motion from Ms. Dusek, a second from Ms. Saunders. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none, motion carries unanimously. MS. ARNOLD: Can I just make one correction? The Folio Number that was noted in the statement of violation is not all inclusive. What we should make reference to is, in fact, the deed that was submitted with your packet, rather than the Folio Number, so Page 17 September 26, 2002 that we include all of the parcels that are affected by this, and the deed is on page 22. And it notes, all of Leawood Lakes subdivision, according to the plat thereof as recorded in Plan Plat Book 24, pages 62 through 64, inclusive of-- of the public record, Collier County, Florida, less and except Lots 2, 3, 5, 51, 64, 65, 66, 67, 129, 201,203 and 206 of said Leawood Lakes. Unless and except Leawood Lane, Leawood Circle and plat portion of Tract J and 15 C.U.E. of said Leawood Lakes plat, and that would include the properties that we need to. MR. LEHMANN: So noted. Jean, we've already voted on the finding of fact. Do we need to re-vote on this amendment to it? MS. RAWSON: I think she's just clarifying the order. I don't believe that another vote is necessary. MR. LEHMANN: Okay. Thank you. I would like to proceed then with the order of the Board. I would entertain a motion for the order. MS. SAUNDERS: I will recommend that the Respondent be ordered to pay all operational costs incurred in the prosecution case, and abate all violations through placement plannings -- plantings by December 15th or a fine of $50 per day will be imposed for each day the violation continues. MS. DUSEK: Ms. Sulecki suggested $75. The county is suggesting $100. MS. SAUNDERS: Really? This sheet I'm looking at, unless there is another one. MS. ARNOLD: There is a revised summary in your packet, reflecting a different recommendation. MS. SAUNDERS: Oh, okay. Page 18 September 26, 2002 MR. FLEGAL: I like the county's recommendation of $100 per day. MS. SAUNDERS: I'll amend-- I'll change my motion to that. I was looking at the old recommendation. I will refer to the county for that. MR. FLEGAL: Rhona, your prosecution costs -- MS. SAUNDERS: Yes. MR. FLEGAL: That is a separate item. That is not contingent on them complying, is it? MS. SAUNDERS: No, it's not. They pay all operational costs - MR. FLEGAL: Period. MS. SAUNDERS: -- period. MR. FLEGAL: Thank you. MS. SAUNDERS: And abate the violation by December 15th or a fine of $100 per day. MR. LEHMANN: Okay. We have a motion from Ms. Saunders. Do I have a second? MR. FLEGAL: Second. MS. ARNOLD: Can I just clarify what the motion was? Can you state it again? I'm sorry. MS. SAUNDERS: Yes. Pay all operational costs, abate the violation by December 15th, or a fine of $100 per day will be imposed for each day the violation continues. MR. LEHMANN: In other words, she is following staffs recommendations for the motion. MS. ARNOLD: Thank you. MR. LEHMANN: We have a motion by Ms. Saunders. Mr. Flegal has seconded that motion. All those in favor, signify by saying aye. THE BOARD: Aye. Page 19 September 26, 2002 MR. LEHMANN: Any opposed? Hearing none, the motion carries unanimously. Mr. Enlow, do you -- do you understand what action the Board is taking? MR. ENLOW: Yes, I do. MR. LEHMANN: Okay. Thank you very much. MR. ENLOW: Thank you. MR. LEHMANN: We would proceed on to the next case, please. MS. ARNOLD: The Board of County Commissioners versus Gordon Jackson, CEB Case Number 2002-022. MS. HILTON: At this time, I would like to ask if the Respondent is present in the courtroom? MR. JACKSON: Yes, ma'am. MS. ARNOLD: Let the record show the Respondent is present. MS. HILTON: The alleged violation is of Section 1.5.6 -- oh, wait. We have provided the -- sorry. I'm new. We have provided the Board and Respondent with a packet of information we would like entered as Exhibit A at this time. MR. FLEGAL: So moved. MS. DUSEK: Second. MS. SAUNDERS: Second. MR. LEHMANN: We have a motion and a second, a couple of seconds, actually. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries unanimously. Please proceed. (Whereupon, County's Exhibit A was entered into the record and the meeting continued as follows:) MS. HILTON: The alleged violation is of Section 1.5.6. and 2.1.15 of Ordinance 91-102 as amended of the Collier County Land Page 20 September 26, 2002 Development Code and Sections Six and Seven of Ordinance Number 99-51, the litter, weed and exotic control ordinance. Description of violation, a huge accumulation of vegetative debris on property, approximately, 500 dump truck loads. Most of the debris appears to have been brought in from off site. Location/address where violation exists, 1027 Rabbit Run Road, Florida, more particularly described as 000108360008; name and address of owner/person in charge of location where violation exists is Gordon P. Jackson, 1027 Rabbit Run Road, Naples, Florida. Date violation first observed, March 18, 2002; date owner/person in charge given Notice of Violation, March 19, 2002; date on by which violation to be corrected, April 3, 2002; date of reinspection, July 23rd, 2002; result of reinspection, the violation remains. At this time, I would like to mm the case over to the code investigator, Jeff Letourneau to present the case to the board. MR. LEHMANN: Prior to hearing any testimony, I would like the witnesses sworn in, please. If you could swear both of our witnesses in, please. (Whereupon, the witnesses were duly sworn and the meeting continued as follows:) MR. LEHMANN: Thank you. Mr. Letourneau, if you could proceed, please. MR. LETOURNEAU: For the record, my name is Jeffrey Letourneau. I'm an investigator for Collier County Code Enforcement. On March 18th, 2002, I received an anonymous complaint about vegetative debris at 1027 Rabbit Run Road. I proceeded to the above location and performed a site visit. Page 21 September 26, 2002 In the rear of the property, I observed what I thought, approximately 500 dump truck loads of tree limbs, trunks, roots, undergrowth and materials produced by clearing and grubbing of off site properties. This pile was approximately 20 feet hight, 30 feet wide, and at least 100 yards long. No one was home at the time. I went around to the west side of the property and took some photographs, which I would like to show you right now. As you can see, the tree limbs -- I had to take the pictures through the fence because I couldn't get on the property, but you can see the tree limbs and the roots and the stumps. I think this one right here really shows a good view of the size of the limbs and the stumps. This was the fence I had to take it through. As I said, this is like 100 yards long. Okay. I proceeded back to the office to do some research. During the research, I determined that this property was zoned agricultural. It was mobile home overlay. It's right there where the orange and the cross it at. I also determined that Mr. Jackson was the owner of the property. I found Mr. Jackson's phone number and called him. A woman answered and said that Mr. Jackson wasn't in. I left my number and asked her to tell Mr. Jackson to call me as soon as possible. Mr. Jackson called me back that day and stated that he thought it was legal to bring in the debris. He said he was going to let the vegetation rot and use it for a compost pile for a future nursery on his property. I told him I thought it was a litter and land use violation and I would check with my supervisor about it. I discussed the matter with Page 22 September 26, 2002 my supervisor, Ed Morad and County Engineer, Stan Chrznowski, and both stated that it was a violation. I called Mr. Jackson and informed him of the decision and asked him if I could meet him on the property. He refused to meet me or allow me on the property. On the following day, March 19th, I posted and mailed a Notice of Violation for Land Development Code 91-102 amended 1.5.6. I also cited 91-102, 2.15 and 99-51, Section Six and Seven. I just want to go over these ordinances real quick, 1.5.6 says, 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 the code, unless otherwise provided. And on 2.1.15, any use or structure not specifically permitted in a zoning district as a permitted use or conditional use or use allowed by reasonable implication shall be prohibited in such zoning districts, and it's not -- it's not a permitted use or a conditional use for this district. In the litter ordinance, I just want to point out the description of litter, shall mean any discarded, used or unconsumed substances or wastes. Litter shall be -- include, but not shall be limited to -- and I go down to, tree limbs, trunks, roots, undergrowth and materials produced by clearing and grubbing and other horticulture wastes, which it clearly is that substances. And the ordinances I cited were Section Six and Section Seven. It shall be unlawful for any persons to throw, discard, place, drop or deposit litter in any manner or amount upon public property or private property. Page 23 September 26, 2002 And seven states, any unauthorized accumulation of litter in or upon any property, vacant or improved, or upon any public street, alley or other public or private place is a violation of this ordinance. Okay. During early March, I was contacted by Mr. Jackson's attorney, Mr. Wilson, who stated that his client was not going to remove the debris because the vegetation was a large compost heap. He also stated that the pile was more like 2000 truck loads rather than five -- 500 truck loads. Code Enforcement received a letter from Mr. Wilson stating this point of view. Also, during this time, we consulted with other county planning departments, and both the Director, Susan Murray and Principal Planner, Fred Reischl concurred that the storage of this massive pile of debris is not a permitted use for this agricultural district, and the violation has remained the same until today. MR. LEHMANN: Mr. Letourneau, let me ask you kind of a loaded question. You define litter, or I should say the county ordinance has defined litter as meaning any discarded used or unconsumed substances or wastes and therefore -- and it goes on to specifically state grass clippings, tree limbs, trunks, roots, undergrowth and so on and so forth. Do we know that this material is in quote, "discarded"? In other words, my biggest problem with this particular case is the definition of litter. MS. ARNOLD: If we can defer that to the County Attorney's Office? MR. LEHMANN: way or the other. MS. BELPEDIO: Certainly. I just need an explanation one Jennifer Belpedio, for the record. I understand your concern that you may get caught up on what is discarded. It's just a matter of different opinions. Page 24 September 26, 2002 I'm sure the defense attorney is going to tell you there is a lot of use for these limbs and trunks and that they are not discarded and that they are part of a livelihood of his business that he's planning to have in a couple of years as a nursery. Regardless of that, even if they weren't discarded, the Defendant is required to get a conditional use permit for these -- for this particular use. It's not permitted in that zoning classification, in the agricultural classification. It's really for you to decide whether or not it's discarded, but I would submit that if you were to start mincing words in ordinances such as this one, that persons would come in and put whatever they want onto their property and call it useful, and we would have persons in this community with all sorts of things on their property that's very unsightly, but it is your choice to make that determination. MR. LEHMANN: Well, it seems like all of the code sections that we are, in a sense, stating the Respondent has violated, all boils down back to this one particular code section. And -- MS. ARNOLD: No. There is more than one. There is more than one section cited. MR. LEHMANN: That's correct, but they all basically reference unpermitted uses and so on and so forth and we're all coming back to what is a permitted use defined as this particular code section. Okay? MR. FLEGAL: Question. Permitted use. Let's be generous. Is there a permitted use for having a compost pile in your yard? MR. LETOURNEAU: A compost pile -- MR. FLEGAL: I mean, I'm going ahead by their description that it was a compost pile, so does this mean that anybody, anywhere, can bring stuff into the yard, pile them up and say, I got a compost pile, so I'm cool. Page 25 September 26, 2002 MS. ARNOLD: I don't mean to interrupt, but we have the Planning Director here and we were intending to have her answer the planning-related questions since that's her expertise, rather-- and we consult that department to come to the determinations, so if we can kind of proceed with -- MR. FLEGAL: Okay. MR. LEHMANN: That's fine. Okay. Any other questions from the Board for Investigator Letourneau? MS. GODFREY: Yes. Investigator, how long do you think it would take for some of these materials to disintegrate in order to use as a compost pile? MR. LETOURNEAU: I'm not really an expert on that, but I would, just in Laymen's terms, probably a couple of years at least. MS. GODFREY: Yeah. I have compost piles and it would take a long time. MR. LETOURNEAU: With limbs that size -- MS. GODFREY: Yes. MR. LETOURNEAU: -- it would take a long time. MR. LEHMANN: Can you approximate the diameter of the limbs, large limbs? MR. LETOURNEAU: They're anywhere from probably eight to ten inches down to, you know, minute twigs. It's just a whole variety of them, you know, it's just not -- MR. LEHMANN: But you've got a -- a trunk or so that's eight to ten inches? MR. LETOURNEAU: Easily, yes. MR. PONTE: Investigator, one other question. This is about -- there is a discrepancy in terms of the truck loads of material. They claim 2000 truck loads. I saw a report earlier for 1000 and now the Page 26 September 26, 2002 county is saying 500. Have you revisited the site and made another assessment.9 MR. LETOURNEAU: As I said, I can't really get on the site. I can just see from the adjoining property. And my first estimate was 500 truck loads, and then I'm just going by their letter they wrote to us that it was at least 2000 truck loads. I mean, it's -- it's very hard to determine how many truck loads it is, because of the depth of the property and the height and how long it is. MR. PONTE: Thank you. MR. LEHMANN: Any other questions? Hearing none, Michelle, do you have any other witnesses you would like to call or -- MS. ARNOLD: Well, the Respondent has an opportunity to question the witness. MR. LEHMANN: Okay. MR. WILSON: Douglas Wilson appearing for the Respondent. I don't have any questions, but I do have an anticipatory concern about offering testimony from the Planning Department because I agree with those of you that have addressed the issue. I do think it boils down to whether or not this material is litter. And we have come prepared to talk about that issue. I think you have in your packet, two letters from me and I think both times, I requested the County and -- and Ms. Belpedio, herself, to cite me any other provisions of the code which were relevant to this matter and which prohibited Mr. Jackson from doing what he is undertaking to do. I have not been favored with any other code sections of that kind. So as far as I'm concerned, due process requires that today we are here to talk about litter and litter only, and I just offer that objection in advance of any such testimony. Page 27 September 26, 2002 MR. LEHMANN: Ms. Arnold, anyone else you would like to present? MS. ARNOLD: Yes. We would like to call Margaret Wuerstle, who is the Planning Director for the county. MR. LEHMANN: So be it. MS. ARNOLD: Okay. The County Attorney's Office has asked me to clarify, because the investigator has indicated the Planning Director was Susan Murray. She was then, Acting Planning Director. Now, Margaret is the current Planning Director. And -- and we've asked Margaret to provide information to the Board with respect to the use and how we've made the determination of the violations that we've cited the property owner for. MR. LEHMANN: Thank you. May we swear the Witness, in please. MS. ARNOLD: She's been sworn. MR. LEHMANN: MS. WUERSTLE: MR. LEHMANN: Oh, you were sworn? I'll do it again. Nope. Nope. If you've been sworn already, I don't want to make you go through that twice, and I apologize. Please proceed. MS. WUERSTLE: Okay. The property is located in the rural agricultural district. The proposed use, as indicated in their letter, is composting. Both Susan Murray, who was the acting director, Principal Planner, Fred Reischl, made a determination that this would be considered Collection and Transfer for Resource Recovery. That is a conditionally permitted use in this district. I went through, I reviewed the record, and I would have to agree with that. So they do need a conditional permit in order to be doing this on the property. Page 28 September 26, 2002 MS. SAUNDERS: Would there be any problem in them getting or obtaining a conditional permit? Is there any reason they wouldn't get it? MS. WUERSTLE: I really can't answer that because it is the Planning Commission who makes that determination. And there is a public hearing involved, so there's a number of-- of documents and information that needs to be submitted to us regarding buffering and landscaping and compatibility with surrounding uses. And until I have that information, I couldn't make a determination, but the decision isn't mine to make anyway. It is the decision of the Planning Commission, and I wouldn't want to second- guess them. MR. LEHMANN: And if I can reiterate what you are saying so that I understand it. You are saying that the collection of this material and the process of leaving it on site to compost it or whatever use that they choose to do, the Respondent chooses to do, would be permitted if a conditional permit were obtained. MS. WUERSTLE: With -- with -- was granted by the Planning Commission, yes. MR. LEHMANN: Okay. MS. ARNOLD: Margaret, does it matter whether or not the material today is deemed litter? Can the property owner currently have the materials on that property without getting a conditional use? MS. WUERSTLE: No. There is another section on the code. It's 2.1.15.4, that says the storage, display or sale of any items, services, materials or products, whether finished or unfinished, processed or natural, other than from within, or is part of the normal operation of the permanent structure authorized by the code. So, no, it would need to be part of an operation of permitted use and this is a conditionally permitted use, so there is a public process Page 29 September 26, 2002 that they need to go through in order to get this -- this use approved proof on the site. MR. LEHMANN: But you did not cite them under this particular code that you are referencing. MR. FLEGAL: Yes, they did. MS. ARNOLD: They cited them under 1.5.6 for illegal land use. MR. LEHMANN: Okay. MR. FLEGAL: Okay. But you -- they were cited under 2.15, period, so it covers all -- MS. ARNOLD: Yeah. They were also cited -- MR. FLEGAL: -- so they were cited. MR. LEHMANN: Do you have a copy of that particular code section that we could see on the viewer? MS. WUERSTLE: MR. LEHMANN: MS. WUERSTLE: Yeah. MS. SAUNDERS: Sure. Mine stops at three. It's Number Four where the big arrow is. If they were to go through the planning steps in order to apply for and receive a conditional use permit, what's the time frame that that takes? MS. WUERSTLE: MS. SAUNDERS: MS. WUERSTLE: a very short time. I am being very conservative on that. MS. SAUNDERS: Okay. MR. LEHMANN: Any other questions from the Board? MR. WILSON: If I may, sir. Ma'am, I'm sorry. I wasn't able to write fast enough. What is the provision that you are citing that says that it has to do with I want to say that it would be a few months. Okay. And just so you know, I have been here for Cross? Page 30 September 26, 2002 moving this material onto the property and -- in other words, what is the specific section that you're referencing that we are not in compliance with that requires a conditional permit? MS. WUERSTLE: Okay. The specific section is 2.2.2.3.12. Okay. It is listed collection and transfer cites for resource recovery is a conditional use in the zoning district. MR. WILSON: For resource recovery? MS. WUERSTLE: And I would classify composting as a resource recovery. MR. LEHMANN: Excuse me, Michelle, do you have that code section available for us to -- MR. LETOURNEAU: I've got it right here. MR. LEHMANN: Okay. If we could take a look at it quick. MR. LETOURNEAU: Right there at 12. It's 2.2.2.23, Section 12, right there, collection and transfer for resource recovery. MR. LEHMANN: Could you bring that down a little bit so we can read the paragraph in front of it? MS. ARNOLD: Oh, it's -- these are a list of the conditional uses in the agricultural zoning district. MR. WILSON: Could Ms. Belpedio or somebody point me to the page in the packet that was provided to us to where that section is referenced? MS. ARNOLD: We -- we did not include that. That section was not referenced. I don't know if Jennifer wants to -- MS. BELPEDIO: The purpose in having a director of planning here is to address this Board and indicate what a -- a remedial opportunity would be for this Defendant. It's not necessarily to prove an, in fact, violation. We have cited Mr. Gordon(sic) for 2.1.15 for the use of the property. Now, if we were to, for instance, if the Board were to find that he was in Page 31 September 26, 2002 violation, you could give him 60 days to come into compliance by requiring him to get a conditional use. That's not the provision that, in fact, is in dispute. It's the use provisions and the litter provision, and I would like you to note that these are two sorts of different areas. There's use and there's litter. You could find that it's not litter, but still find that he is in violation of use, but they are mutually exclusive, in my opinion. MR. LEHMANN: Thank you for that clarification. Mr. Wilson? MR. WILSON: I'm-- I'm now completely confused, but we'll talk some more about that in a little while. Ma'am, I thought I heard you read the part of the ordinance that had kind of a big loophole in there that said something about, unless it was an ordinary use for this zoning category; something like that. MS. WUERSTLE: Okay. Section 2.1.15 describes if-- it's the prohibited uses. MR. WILSON: Yes, ma'am. But before that, there was a general exception to this conditional requirement, if I recall hearing correctly, that -- that there was a conditional permit required unless it was part of an ordinary use for the -- MS. WUERSTLE: Oh, on-- on-- okay. MR. WILSON: Bear in mind, I apologize to the Board. I'm hearing all this for the first time. MR. LEHMANN: No problem. MR. WILSON: Go ahead. MS. WUERSTLE: 2.1.15.4. It's undertheprohibiteduses. The storage and display of sales of any items, services, materials or products, whether finished or unfinished, processed or natural, other than from within or as part of the normal operations of a permanent structure authorized by the Land Development Code. Page 32 September 26, 2002 MR. WILSON: Now, it's that last or that I'm interested in. MS. WUERSTLE: Or part -- or as part of the normal operations of a permanent structure authorized by the LDC. MR. WILSON: Well, the -- authorized by the LDC is part of that language? MS. WUERSTLE: Yes. Authorized by the Collier County Land Development Code. MR. WILSON: By the code? MS. WUERSTLE: Yes. MR. WILSON: Okay. Now, this is an agricultural use. What do you mean by permanent structure? What does that -- what does that language mean in your opinion, professionally? MS. WUERSTLE: That -- that the permitted use, the primary use of the property would have to be permitted on that site. MR. WILSON: Well, but, I mean, you have to get a permit unless it's a normal use of a permanent structure. What -- what does the language, permanent structure, mean? Can you give me an example? MS. WUERSTLE: Let's see. The -- the -- okay. I don't know if this one will be a good one for you, but, for instance, car sales -- automobile sales, if it was a permitted use in -- in the district that it was located, the display or storage from this use would be allowed. MR. WILSON: Okay. Now, let me ask you a question about agricultural uses. Suppose a farmer has some property and he's growing things out there, and he wants to stack up a large load of fertilizer for use on that property, which he brings in from off site. Is that a conditional use that must be permitted? MS. WUERSTLE: Farming operations? MR. WILSON: Yes. MS. WUERSTLE: Farming operations are permitted by right. Page 33 September 26, 2002 MR. WILSON: This is zoned agricultural; correct? MS. WUERSTLE: Yes. MR. WILSON: And, I believe, earlier testimony from Mr. Letourneau included that Mr. Jackson intends to use part of this on site. I -- I think that's right. If I misspoke, he will certainly supply that himself. Assuming that this pile consisted of material that we all recognize as fertilizer, would he then require a conditional permit? MS. WUERSTLE: He would require a conditional permit for composting. MR. WILSON: That's not my question, ma'am. MS. WUERSTLE: Okay. Try me again. MR. WILSON: If this were material that we all recognized as fertilizer, say it was manure, would he require a conditional use permit? MS. WUERSTLE: What -- what -- what is the primary use of that property, storing a fertilizer? MR. WILSON: The testimony will be that it's a five-acre parcel, among many out there, where people -- some people -- virtually, everybody, I think, we can take administrative notice, pays the lower rate of taxes because some agricultural use takes place out there. Can you verify that, for example, about this area out there, that most people do make agricultural use of their property, and their taxes are therefore reduced? MS. WUERSTLE: I cannot. MS. ARNOLD: I have to object, because we are talking about this parcel, not what other people's parcels are doing. MR. WILSON: All right. Assuming that there is testimony in the record that agricultural use is being made of this property, the Page 34 September 26, 2002 question again is, is he required to get a conditional permit in order to store fertilizer? MS. WUERSTLE: I can't answer that off the top of my head. I would have to go back and do a little research. MR. WILSON: Now, earlier I asked the question, I don't know if you can answer that, or Ms. Belpedio. Can you refer me to the page in the packet -- oh, I think this may have been answered. Everybody has admitted that we were not provided with this page -- MS. WUERSTLE: Which page? MR. WILSON: -- that you are discussing. MS. BELPEDIO: Again, I would like to state for the record that the conditional use issues are regarding compliance and they are not the subject of this case. Perhaps we may have erred in bringing this board too much information. We're trying to work towards compliance. I don't think it needs even be addressed. These are sorts of things that can be addressed if the Respondent desires to seek conditional use by filing an application, and the director here will be responsible, along with her staff, in reviewing that application and rendering an opinion to the CCPC, the Planning Commission. MR. WILSON: May I enquire of Ms. Belpedio? While you are at the podium, ma'am. You and I have had several exchanges, and I think in one of my correspondences with you, I asked you to cite me any other provisions of law that we were not in compliance with. Did you cite me, at any point, or reference to the material that the witnesses just testified to? MS. BELPEDIO: The provisions that you are in violation of that are the subject of this whole case are referenced in the NOV. We merely need to establish the elements of those violations by a Page 35 September 26, 2002 preponderance of the evidence in order for their to be a violation found. If, at a later point, a violation is found and your client is required to come into compliance, then we can discuss any other provisions that may be applicable. MR. WILSON: But you agree that my correspondence to you and code enforcement, urged that if we were out of compliance, except for the litter violation under any other ground, we wanted to know about so that we could come into compliance. Is that a fair characterization of my correspondence? MS. BELPEDIO: I would not agree with that. My correspondence in response to your correspondence was that you were subject to the restriction of a conditional use permit. It was my effort to inform you that you may want to seek an application and apply for the conditional use permit. If you would have had that permit prior to this hearing, perhaps the violation would have been abated and there would not have been a need for this hearing. I -- MR. WILSON: But at no point -- MS. BELPEDIO: I am not required to present you with every sort of code provision that could help your client. We'll work with you, but once we get into this adversarial sort of process, I am not in the position to give you legal advice or advise you of what our code provisions are. MR. LEHMANN: Let me put a stop to this right now. I think we are getting a little off here. MR. FLEGAL: Way off. MR. LEHMANN: We all know, I hope all the board members know, and certainly the Respondent on the county's side realize that what the county is citing would be a reparative measure. Page 36 September 26, 2002 We are not here to find whether or not you have violated that particular code section because, quite frankly, it's not part of the violation. MR. WILSON: I appreciate that clarification, Mr. Chairman. I was very concerned about this testimony and how this has hit us. MR. LEHMANN: Let us proceed on -- on what the violation has been cited for, the specific code violation, just those specific areas. Mr. Wilson, do you have any other questions for the -- for the Witness? MR. WILSON: Not for this Witness, Mr. Chairman. MR. LEHMANN: Thank you. We can proceed. MS. ARNOLD: Mr. Wilson, do you have a copy of the packet that was provided to the Board? MR. WILSON: I have a copy of the packet that was provided to me. MS. ARNOLD: Okay. It's the same packet that we provided to the Board. On page 3 5, there is a letter from Ms. Belpedio. You may -- perhaps it would help you understand if you were to read that letter. Maybe it would answer some of the questions that you have provided to Ms. Belpedio. MR. LEHMANN: Okay. Ms. Arnold, if you would proceed with the county's case? MS. ARNOLD: We -- we have no other witnesses. MR. LEHMANN: Okay. Thank you. Mr. Wilson, do you have any witnesses? MR. WILSON: I'd like to offer the testimony of Mr. Jackson. LEHMANN: Please proceed. WILSON: State your name, please. JACKSON: Gordon P. Jackson. ARNOLD: I'm sorry. We do have one other witness. MR. MR. MR. MS. Page 37 September 26, 2002 MR. LEHMANN: If you would wait just one second? I apologize. MR. GILLAIN: Good afternoon, ladies and gentlemen. My name is Robert Gillain. I own the property that -- MR. LEHMANN: Mr. Gillain, one second. MS. ARNOLD: Yeah. You need to be -- MR. LEHMANN: If you would swear the Witness in, please? (Whereupon, the Wimess was duly sworn and the meeting continued as follows:) MR. LEHMANN: Let me -- let me give one fair warning. It seems like this thing is going to go out of control very quickly. Everybody wait your mm, okay? We're going to speak in order and we'll do this in an orderly process. I apologize Mr. Jackson and Mr. Wilson simply because we are hearing another witness besides that, but let us proceed in an orderly manner. MS. ARNOLD: I'm sorry. I -- and we have this Wimess. He's an affected party. He's the adjacent property owner and merely he's here to indicate what is existing next to that property. MR. LEHMANN: Thank you. Please proceed. MR. GILLAIN: Okay. Good morning, ladies and gentlemen. Thank you. I've been watching this go on for four or five years. It started out, he was going to build up his property. That's fine. The misconception in the loads of debris that's went in there, it's about 500 loads of organic material, but the other 1500 is in construction waste. And that obviously -- he's been getting paid to haul in there and it's not going to end. It's mining into a landfill. I've asked him several times. He's put several tons of it onto my property, and I've Page 38 September 26, 2002 asked that it be removed, and it still hasn't. This is on a side that you- all didn't even see pictures of. The pictures that you are looking at is of the organic material, which is not compost. Compost would be mulch. It's too big. Other than that, I guess I really have nothing else to say, but to ramble. But this -- this has been going on for quite a while. There's been dump trucks -- at one point, we were seeing eight to ten a day for approximately five months, moving in and out of there. And if this is allowed to continue, it's going to become extremely unbearable. And that's not what I moved to the country for. I guess that's really all I have to say. MR. LEHMANN: Any questions from the board members? Hearing none, Mr. Gillain, thank you very much. MS. ARNOLD: You didn't give him an opportunity to -- MR. WILSON: May I cross-examine briefly? MR. LEHMANN: Yes, please. Cross. MR. WILSON: Sir, you said that you had complained to Mr. Jackson about the deposit of the material on your property? MR. GILLAIN: On several occasions. MR. WILSON: In person or by telephone? MR. GILLAIN: In person. MR. WILSON: And what was his response? MR. GILLAIN: Well, originally, whenever he started, he came in and he cut a swatch through my property, just -- just cut a road through it, and I went out and explained to him what the variances were and where the property lines were. That didn't seem to phase him. Then he dug a trench where the road should be approximately 20 foot wide, 10 foot deep and probably about 200 foot long, where Page 39 September 26, 2002 the road is supposed to go. And then he put the road onto my easement line, on my property, not on the road line. I mentioned to him a year after that to please remove it, and again, six months ago, while he had the machine there that he was digging the trenches out to put the -- the construction waste in. So I have complained to him, in person. MR. WILSON: Well, it sounds like you have a variety of complaints. MR. GILLAIN: My biggest complaint is the tons of material that is on my property. Yes, I have other complaints. MR. WILSON: The tons of-- are you talking about the road along this easement line that -- that -- MR. GILLAIN: No. I'm talking about the road on my property. It is in the easement, but it's still on my property. MR. WILSON: Did you retain private counsel or talk to the county about the going -- installation of that road? MR. GILLAIN: No. I've been waiting for this. MR. WILSON: Are you the complainant in this matter? MR. GILLAIN: No. MR. WILSON: All right. MR. GILLAIN: The county contacted me on this. MR. LEHMANN: Mr. Wilson, over here, sir. MR. WILSON: You-- I'm sorry? MR. LEHMANN: Mr. Wilson, how does this have any bearing on this particular case? MR. WILSON: I'm trying to show that it doesn't by cross- examining him, and if I may, just one or two more questions, I'll -- I'll indicate that. MR. LEHMANN: Okay. Page 40 September 26, 2002 MR. Jackson's MR. MR. WILSON: Your property does not directly abut Mr. property, does it? GILLAIN: It does. WILSON: On what side? MR. GILLAIN: On the front easement line that -- the property line goes to the center of the road. MR. WILSON: All right. MR. GILLAIN: And our two property lines touch for approximately 330 foot. MR. WILSON: On the other side of an easement? MR. GILLAIN: The property line goes to the center of the road, and then you give away a 30-foot easement. MR. WILSON: But if that easement were not there, then you guys probably wouldn't have any difficulty with each other; correct? MR. GILLAIN: Well, that ease -- but the easement is there. MR. WILSON: Why didn't you complain about this particular pile some time ago, if it's been going on for four or five years? MR. GILLAIN: Oh, the pile? You know something? I believe that people should be able to do what they want on their property. MR. WILSON: So you don't object to the pile? MR. GILLAIN: I dislike it. MR. WILSON: But you don't object to it. MR. GILLAIN: I dislike it. MR. WILSON: But do you object to it, yes or no, sir? MR. GILLAIN: Yeah, I object to it. MR. WILSON: All right. But you think that people ought be able to do what they want to with their property. MR. GILLA1N: To an extent: Then I saw a landfill going in next door to me after I moved out there, and that's what's going on right here, right now. Page 41 September 26, 2002 MR. WILSON: But we are not here to talk about that today, right? No further questions. MR. LEHMANN: Mr. Gillain, you had indicated that construction debris was going into this, not vegetative debris? MR. GILLAIN: Correct. MR. LEHMANN: Can you give me some examples of what you define as construction debris? MR. GILLAIN: Concrete and steel. MR. LEHMANN: And you have witnessed that yourself?. MR. GILLAIN: Yeah. MR. LEHMANN: What type of quantities would you estimate? MR. GILLAIN: I would say, and I -- we sat down yesterday, talking about this, and we're figuring over a thousand truck loads, easy. MR. LEHMANN: or buried? And is this construction debris above ground MR. GILLAIN: A little of both. You've got to figure that the sea level is really low there, so you throw something on the ground, throw some dirt on it, well, then it's buried. But I would say it's -- it's, for the most part, topping. I mean, you could go out there with a shovel and find it. MR. LEHMANN: Okay. Thank you very much. Any other questions? MR. WILSON: I have a couple more follow-ups. Isn't it true that whatever you're calling construction debris, has been applied to level out the ground out there? MR. GILLAIN: What's level? He's four or five foot above sea level. MR. WILSON: All right. But it's part of the ground now. It's not this pile sticking up out above the ground? Page 42 September 26, 2002 MR. GILLAIN: It's part of the ground now, uh-huh. You're right. It's part of the ground. Whatever you put on the ground, it's part of the ground. MR. LEHMANN: Mr. Gillain, in this construction debris that you say is deposited on the property, the elevation of the degree -- debris, is it above the crown of the road? MR. GILLAIN: Yeah. MR. LEHMANN: How far? MR. GILLAIN: It's hard to tell in places. I haven't done any serious reck and orderings over there, and it's fairly closed off, but I would say it's above the crown of Immokalee Road. MR. LEHMANN: One, two, three feet? MR. GILLAIN: I would hesitate to make such a statement, because I really wouldn't know without looking at it much closer. But I do know that -- and I do believe that if this isn't put in check now, that it's going to keep climbing until it's a mountain. MR. LEHMANN: Okay. Mr. Wilson, any other questions? MR. WILSON: No, sir. MR. LEHMANN: Thank you. MR. FLEGAL: I want -- I want to ask the investigator a question if you would call him back, please. MR. LEHMANN: We have questions from the Board. Investigator Letourneau. MR. FLEGAL: Not for this gentleman. For the investigator, please. MR. LEHMANN: Mr. Gillain, thank you very much. Have a seat, please. MR. LETOURNEAU: Go ahead. Page 43 September 26, 2002 MR. FLEGAL: Yes, sir. If somebody is -- if I can get the proper phrasing, so you can answer the question. If we're going to fill in our property, okay? Do we need a permit to fill it in? In other words, if the property has some kind of a hole in it and we want to make it level, do we need a permit to bring that fill-in to do that or can we just bring fill-in and level it off?. MR. LETOURNEAU: That's not really my area of expertise. I can say that if it affects the neighboring properties, then you would need a permit. But there's a -- some filling that can be done that, you know, does not affect the drainage on other people's properties. That can be down without a permit, but if it's draining water onto any other adjoining properties, they would -- it would probably need a permit. MR. FLEGAL: Okay. MR. LEHMANN: Investigator Letourneau, permitted uses, Code Sections 1.5.6, which you cited in this particular case, specifically states, 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 permitted. My question to you is, if we -- if we bury debris on a piece of property, do I need a permit for that? MR. LETOURNEAU: If it's -- there's a definition of clean fill and -- which would be, you know, it can be like concrete, but not metal or sand or dirt. Like I said, if it doesn't affect the neighboring properties, it usually doesn't need a permit. But if it's litter, any type of construction debris, metals, like that, it cannot be done. You cannot bury anything like that. Page 44 September 26, 2002 MR. LEHMANN: So I can bury concrete on my property, but I can't bury steel? MR. LETOURNEAU: Correct. MS. SAUNDERS: Sir, did you observe any evidence of construction materials that were on the property? I knew you had a limited view of it, but-- MR. LETOURNEAU: I did not, no. MR. LEHMANN: Any other questions for the investigator? No? Okay. MS. DUSEK: I -- I guess I do. I have one that's -- I'm a little confused. If I have some property, and I wanted to fill it, I can bring concrete or any sort of material except steel and bury it, and we don't know how the land is going to settle over that and how it's going to drain and all that sort of thing? I mean, you can just do that and then wait for the results to see if it's going to drain on someone's property? MR. LETOURNEAU: I'm not the expert on that, filling and stuff like that. That would have to be a county engineer. I'm, you know, that's a pretty vague situation right now as far as I know. You know, I don't -- I'm not the expert. MR. LEHMANN: It is my understanding of the building code that no land can be altered, including excavation and fill without a building permit. That's my understanding. MS. DUSEK: It sounds reasonable. MR. LEHMANN: And unfortunately -- and the only reason I say that is because we hear constant cases come before us where they are citing specific code sections doing that, so this is the purpose of my question. Are we now saying that this is a permitted use without a -- that this is a -- a proper use without a permit? Page 45 September 26, 2002 MR. LETOURNEAU: I'm not going to say that. I'm not -- I'm not the person that you should ask that. It should be a county engineer. MR. LEHMANN: Okay. MS. ARNOLD: Jeff, does the county require to in -- after your research, does the county require the property owner to obtain some sort of development order permit to store the material on the property the way they are currently storing it? MR. LETOURNEAU: If it's not litter? MS. ARNOLD: The current use of the property -- MR. LETOURNEAU: Right. MS. ARNOLD: -- have you been advised whether or not a development order is required to use the property the way it's being used? MR. LETOURNEAU: One more time. I'm sorry. MS. ARNOLD: Have you been advised whether or not a permit, a development order, is required for the property owner to use his property the way he's currently using it? MR. LETOURNEAU: I mean, I -- I was considering it litter. I don't know, you know, I mean, if-- that's -- that's my point of view. I say it's litter. I don't-- I don't-- MS. ARNOLD: Has anybody told you that he needed to get some sort of a permit, a conditional use or otherwise to use the property the way he's wanting to use it? MR. LETOURNEAU: Has somebody told me that? MS. ARNOLD: Yes. MR. LETOURNEAU: No. MS. ARNOLD: Did you not get any information from the planning department regarding the use of the property? Page 46 September 26, 2002 MR. LETOURNEAU: As I said, they stated that it was -- let me see, the massive pile of debris being stored is not a permitted use. MS. ARNOLD: Okay. MR. LEHMANN: Mr. Wilson, I expect you want to cross. MR. WILSON: One or two questions, very briefly. Mr. Letourneau, this Witness, of course, was a surprise to us, and apparently was a surprise to you. Did you know anything about any construction materials before today? MR. LETOURNEAU: Construction materials? No, I did not. MR. WILSON: So you filed this citation not having anything to do with whether or not Mr. Jackson brought in some construction concrete to level out his property. That is no part of your case here today; correct? MR. LETOURNEAU: Correct. MR. WILSON: Thankyou. MS. DUSEK: Mr. Letourneau, were you able to see the entire to property to make that determination? MR. LETOURNEAU: No, I wasn't. MR. LEHMANN: Any questions for Mr. Letourneau? Have a seat, please. Ms. Arnold, do you have any other witnesses or -- MS. ARNOLD: No, we're through. MR. LEHMANN: Okay. Thank you. I would like to take a ten-minute break. I apologize but I expect that your portion will be a little bit more lengthier than we have paper left for the reporter. MR. WILSON: It's not that long, Mr. Chairman. MR. LEHMANN: I'd like to take a ten-minute break if you would, please, and we'll come back at 10:30. The Board is temporarily adjourned. (Whereupon, a recess was taken and the meeting was re- adjourned and continued as follows:) Page 47 September 26, 2002 MR. LEHMANN: Okay. Ms. Arnold, also from other Respondents, we have a request for a continuance I would like to address at this point in time. If you don't mind, I would like to just put your particular case on hold. This is the case of 2002-015, Board of County Commissioners versus Dov Dunaevsky, Registered Agent, is that it, DCM-Naples L.L.C. MR. HOLLANDER: Yes, it's Dov Dunaevsky. MR. LEHMAN: Thank you. MR. HOLLANDER: My name is Richard Hollander. I represent the Respondents. Let me bring the Board up to date real quick, and then I'm going to ask for a continuance of the matter. This involves two trailers that were used as a model center out on a piece of property on Radio Road. It's east of Santa Barbara. The trailers were owned by somebody else. Mr. Dunaevsky owns the underlying property. The gentleman that owned the trailer is a fellow by the name of Jacob Megar. And only until recently were we able to obtain ownership of the trailers. Basically, he wants to abandon them because he doesn't want to pay for the cost of removal. One trailer has been removed. The other trailer will be demolished probably within the next 21 days. So what I would ask is a continuance on this matter, at which point, once the trailers are demolished and off the property, if you would, you could abate this or whatever you feel is appropriate at that point. But the problem should be solved. So I would ask for a continuance of at least 21 days to get it done. MS. ARNOLD: Staff is objecting to the continuance that's being requested. We feel like the Board -- we continued this case for two hearings, now, I believe. And we can go through and -- and hear Page 48 September 26, 2002 the case, and -- and if the Board feels that 21 days is an appropriate time, then we won't have an issue. MS. SAUNDERS: this matter. MR. LEHMANN: MS. SAUNDERS: Mr. Chairman, I need to recuse myself on So noted. Okay. MR. FLEGAL: Mr. Chairman, we've -- it seems like we've -- are hearing recommendations to do the opposite of what we have already done. We continued the Manatee matter because they are trying to work with the Board of County Commissioners to resolve a problem. Here is a gentleman that says he's demolishing a trailer to resolve the problem. Give him the continuance. It's no different. MR. LEHMANN: One point of clarification here. We have lost Ms. Dusek. Our second alternate would be Chris, okay? MR. RAMSEY: Okay. MR. LEHMANN: Any other comments from the Board on this particular case? Hearing none, I would entertain a motion with regard to whether or not we approve or deny the request for continuance. MR. FLEGAL: I make a motion we approve the request until our next meeting. MR. LEHMANN: Okay. I have a motion to approve. Do I hear a second? MS. GODFREY: Second. MR. LEHMANN: Ms. Godfrey has seconded. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? None opposed. Motion carries. This case will be continued to the next hearing date. Page 49 September 26, 2002 MR. HOLLANDER: Thank you very much. MR. LEHMANN: Thank you, sir. If we can proceed back to Case 2002-022, BCC versus Gordon Jackson, and I apologize for the delay and thank you very much for your patience. MR. WILSON: No problem. Mr. Chairman, before commencing with Mr. Jackson's testimony, the last question I asked Mr. Letourneau established that his citation had nothing to do with this construction material that was brought in by this Witness, Mr., I believe, his name is Mr. Gillain. And therefore, for the record, at least I need to move that his testimony be stricken, In Toto. That witness, I believe, will be recalled really said nothing about the pile, and admitted so. MS. ARNOLD: I would have to object. He did indicate that there was extensive construction -- or, I mean, horticultural debris on the property as well. I don't have any objections to striking the construction debris. It has nothing to do with our case, because we did not witness that debris. MR. LEHMANN: Ms. Rawson, any comments? MS. RAWSON: Yes. Basically, you have before you a Motion to Strike. As you are well aware, the Code Enforcement Board, although we follow loosely our rules of procedure, we are not strictly bound by the rules of evidence. And it's been our position in the past, and I don't see any real reason to recommend to you that you change that, that you listen to evidence. Then you are -- sift out what's relevant and what's not relevant in your minds in making your decision. So you don't need to strike the entirety in my opinion, of his evidence, because you can decide what he said that was relevant to making your decision as to whether or not a violation has occurred, based on what he was cited for. Page 50 September 26, 2002 And so it would be my recommendation that you don't strike all the evidence, but you just weigh the credibility, weigh how much you are going to consider that evidence in making your decision. MR. LEHMANN: We need no vote action for the Board to do that? MS. RAWSON: You don't need-- well, he's made a formal motion to strike the entire testimony. Unless he withdraws that, you probabl should vote on his motion to strike the entire testimony. MR. WILSON: I would like to modify my motion to agree with Ms. Arnold's characterization that the construction evidence about the construction material is not relevant and it should be stricken. MR. LEHMANN: address this issue. MS. SAUNDERS: evidence. MR. LEHMANN: have a second? MR. PONTE: even vote on that. So noted. I would entertain a motion to I will move that we strike that construction We have a motion from Ms. Saunders. Do I No. I -- I just -- I wonder about this, before we If we just strike the construction material information and were to just continue with the organic violation, would we have solved the problem? And, I guess, I have to ask that of the inspector -- the investigator. If the vegetation was removed, would you see any of the construction material, the 1500 truck loads of construction material? Would we have solved the problem or we have just cleared out half of the problem? MR. LETOURNEAU: I would say that if you move the vegetative debris, it might uncover other violations on the property, and then we would have to deal with those, you know, accordingly. Page 51 September 26, 2002 MR. LEHMANN: A word of caution again for the Board members. We are here to address specific code violations that have been cited in the Notice of Violation, and that's it. Now, if there are other violations occurring on the property, that's not within our preview to address today. MS. SAUNDERS: That is the reason for my motion, is that he wasn't cited for any construction material, none has been observed by the investigator and at this time, it is not something that is before us. MS. GODFREY: Well, I have a problem. He's stating that he's going to use it as an agricultural compost pile, and yet we find out that there is other dumping going on there. It kind of confused me a little bit. MS. ARNOLD: Well, if-- if the Board finds that there -- he needs to do something to resolve what is existing on the property, I would think that what he may be required to do would resolve the rest of it as well. MR. LEHMANN: Let's take this one issue at a time. We have a request for, or we have a motion to strike the evidence with regard to the construction material only. That is still on the table. If we can just restrict our conversations to that issue. I'm still looking to see whether or not we have a second for that motion. Obviously, if we don't have a second, the motion does not pass. MR. WILSON: At this time, Mr. Chairman, I would like to offer the testimony of Mr. Jackson. MR. LEHMANN: All right. So note that the motion did not receive a second and dies by itself. If you would proceed, Mr. Wilson? MR. WILSON: Thank you. I think we almost got your name into the record, but say it again. MR. JACKSON: Gordon Jackson. Page 52 September 26, 2002 MR. WILSON: Mr. Jackson, are you the occupant and owner of the property at 1027 Rabbit Run Road? MR. JACKSON: Yes. MR. WILSON: And we are here today to talk about the pile that you have accumulated on your property. When did you start accumulating that material? MR. JACKSON: A few years ago. MR. WILSON: Do you remember with any precision, when? MR. JACKSON: No, not really. MR. WILSON: Okay. MR. JACKSON: I just asked for it because I plan on starting a nursery there, so in anticipation of the nursery, I put it there because I didn't pay anything, I didn't get paid for putting it there, and in the future, down the line -- I'm a contractor now. I splice phone cable. And I want to start a nursery on my property, so in anticipation of the nursery, one of your biggest costs is your soil. So you put the organic material there and in a few years, you are going to have premium soil. So I use that to -- because a nursery takes time for things to grow, so I have to keep working my regular job while I get the nursery going. Then once the nursery is going and it starts producing money, then I can focus one hundred percent of my time on the nursery and stop splicing cable, which is just like a regular job. MR. WILSON: Now, I want to ask you about this pile, the only pile that we have talked about. The one that's cited in the report to the Board that's 100 yards long and 20 feet high and so on. Now, what is in that pile? Page 53 September 26, 2002 MR. JACKSON: One hundred percent organic material, trees, dirt, everything that would be premium top soil in about a year and a half. MR. MR. MR. MR. WILSON: Is there any concrete in there? JACKSON: No. WILSON: Any metal? JACKSON: No. MR. WILSON: Okay. Now, in-- in aid of your efforts to perfect this composting project, did you consult any experts? MR. JACKSON: Yes. I consulted an expert. MR. WILSON: Dr. Ozores-Hampton? MR. JACKSON: Yes. Yes, that's her. MR. WILSON: That's a slightly difficult name. And did you invite her to the property to examine the pile? MS. JACKSON: Yes. She inspected the pile and gave me some recommendations to speed up the process of the composting. MR. WILSON: All right. Do you happen to know, did you undertake, before you started doing this project to find out whether there is a market for the product that will be created by this compost? MR. JACKSON: Well, there is always a market for premium top soil, but that wasn't my original intention. My original intention was to use some of the compost on my yard, because it's not that fertile of soil, and so I could have anything I want to grow on it. And the second was to use some of the soil -- after-- because I have to buy a sifting machine to sift the soil out, so you have just the smaller particles, and use that in the -- in the buckets to start my Areca Palms, which is what I intend to grow. MR. WILSON: Are you presently using any part of the property agriculturally? Page 54 September 26, 2002 MR. JACKSON: Presently, at this moment, compost, but I'm not making money off of it. How about planting any -- Can you speak up, Mr. Gordon(sic)? I can't MR. WILSON: MS. ARNOLD: you. hear MR. JACKSON: Yes. MR. WILSON: How about starting any other plantings or anything like that? MR. JACKSON: Well, I have to run irrigation hoses and electric out to the area, which I am setting up an area where I can start the nursery. That's -- I have cleared some land out and its high and dry so I can put a nursery on it. MR. WILSON: All right. So the organic pile is in anticipation of your using it on your property as an agricultural use? MR. JACKSON: Yes. MR. WILSON: Okay. I was about to ask you, what do your inquiries show that this compost of soil would be worth, in a range, not knowing the quality? MR. JACKSON: In the range, it's about $20 a yard. MR. WILSON: Okay. What is the reason for this method of composting that you have chosen of this piling it up and leaving it there? MR. JACKSON: Because when you pile it up like that, it's much safer, like, the -- the county, the Lee County, they had the compost heap that had internal combustion and caused fire this way. My method is a lot safer. It takes longer, but it's safer because you pile it up, and there is air pockets that help it decompose, slower, but naturally, without the risk of fire. And during the dry season, I have an irrigation hose on the top of it that I pump out from my pond. Page 55 September 26, 2002 It's a water -- so the compost process goes year round in the dry season, and in the wet season, I don't have to water it obviously. MR. WILSON: Have you, yourself, extracted any samples from the pile in its present stage of decomposition? MR. JACKSON: Yes, I did. I went to a Naples fertilizer. They took a few samples of it -- well, they obviously couldn't take any big particles of it, but the smaller particles, and it was top grade. He recommended sprinkling some stuff on it, some nitrogen, which I bought, and I have put down on top of it. It fertilizes it. MR. WILSON: Now, there's testimony from Mr. Letoumeau that made it sound as though the primary component of this pile was logs and branches; is that accurate? MR. JACKSON: No. It's actually more dirt than logs and branches and lots of small stuff. There are a few logs in there. MR. WILSON: Do the logs serve any purpose in the composting process? MR. JACKSON: Yes. They will decompose, too. MR. WILSON: What about aerating the pile? MR. JACKSON: Well, when you get the larger logs in it, you have air pockets in there and it will help it decompose safely without the risk of fire, such as what happened in -- in Lee County on their public -- MR. WILSON: Okay. And I believe you testified that Dr. Ozores-Hampton has advised you about compost management techniques? MR. JACKSON: Yes. MR. WILSON: Okay. And have you begun to implement her recommendations? MR. JACKSON: Yes, I have. Page 56 September 26, 2002 MR. WILSON: And I believe you've testified already that you consider this to be an agricultural activity? MR. JACKSON: Oh, absolutely. MR. WILSON: No further questions. MR. LEHMANN: Ms. Arnold, do you have any cross- examination? MS. ARNOLD: page number 31 ? MR. WILSON: MS. ARNOLD: Yes. Can you refer to your packet number, on Okay. You-- Mr. Gordon(sic), you've testified that your intent is to use the debris or the compost material for a nursery on your site; is that correct? MR. JACKSON: Yes, correct. MR. ARNOLD: Can you-- MR. JACKSON: For future business. It's about two years away. MS. ARNOLD: Can you read for me, paragraph two, the -- the first sentence in the letter from Mr. Wilson to our office? MR. JACKSON: The facts are these: Mr. Jackson is in the process of preparing his property for the cultivation of plants suitable for marketing to commercial nurseries, clearly a use within the agricultural classification. Okay. Are you currently utilizing the property MS. ARNOLD: for an agricultural -- MR. JACKSON: MS. ARNOLD: I'm in the beginning stages of it, so, yes. You are currently using the property for agricultural purposes? MR. JACKSON: Yes. I'm in the early stages of it. MS. ARNOLD: Do you currently have an agricultural exemption from the state? Page 57 September 26, 2002 MR. JACKSON: I haven't applied for that yet. MS. ARNOLD: So are you currently using the property for agricultural, but not obtained the permitting for the agricultural use? MR. JACKSON: I haven't. I'm not making the money off of the nursery yet, because the nursery hasn't started, so, I guess, it's not a functioning nursery yet, no. MS. ARNOLD: So is it a functioning agricultural use? JACKSON: I guess not right at this moment, no. ARNOLD: Okay. Mr. Wilson, could you not answer-- -- the witness? WILSON: I've told him I couldn't coach him. ARNOLD: Okay. You've testified that you-- all of the MR. MS. coach the MR. MS. material is organic. MR. JACKSON: organic, yes. MS. ARNOLD: mostly dirt? MR. JACKSON: In the compost pile, it is one hundred percent Okay. And you have also testified that it's It's dirt and sticks and stuff that was cleared off the land that will become premium top soil after it's decomposed. MS. ARNOLD: Okay. Could you tell me, approximately how many loads of debris -- MR. JACKSON: Rough estimate, it's about 2000. MS. ARNOLD: Have you effected the elevation of the property with this dirt and horticultural debris? MR. JACKSON: With the mulch pile, no. MS. MR. MS. MR. ARNOLD: Excuse me? JACKSON: With the mulch pile, no. ARNOLD: You have a mulch pile on there now? JACKSON: Compost pile. Page 58 September 26, 2002 MS. ARNOLD: Okay. You have not -- so the 2000 dump load -- dump truck loads have not increased the elevation of your property at all? No. The compost has not. So the piles that we have in the picture are at MR. JACKSON: MS. ARNOLD: ground elevation? MR. WILSON: MS. ARNOLD: on the property -- MR. JACKSON: MS. ARNOLD: Is your point that the pile itself raises the level? I'm asking -- yes. The debris that was brought Well, the pile has height itself, so -- Okay. My question is, the debris that has been brought on the property, the twigs, the limbs, the trunks, the dirt; has that elevated the property? MR. WILSON: I'm -- I'm -- for the record, noting an objection on grounds of relevance, because whether it has or has not has nothing to do with the citation. MS. ARNOLD: Yes, it does. We have cited for 1.5.6 and 2.1.15, all -- both state that you are not to alter the site -- increasing elevation is an alteration of the site. MR. LEHMANN: Mr. Wilson, your objection is noted. Please continue. MS. ARNOLD: Has the property's elevation been altered, increased by the piles, the 2000 piles that have been brought on the property? MR. JACKSON: By the organic material, no. MS. ARNOLD: So it's at the same ground elevation as the -- the site before you brought those materials on there? MR. JACKSON: Before I brought, yes, it is the same site before I brought the organic material on it. MS. ARNOLD: The elevation is the same elevation? Page 59 September 26, 2002 MR. MS. MR. MR. JACKSON: As before the organic material was there? ARNOLD: Yes. JACKSON: Yes. LEHMANN: Ms. Arnold, we're going round about on this particular question. The question for clarification as I understand it, and please correct me if I'm wrong, because she has stated the question numerous times already. By bringing the material on site, have you increased the general elevation of the site by the material? In other words, does the material itself, have height to it? MR. JACKSON: Yes. The material does have height to it. Absolutely. MR. LEHMANN: Thank you. MS. ARNOLD: Thank you for that. LEHMANN: Please continue. ARNOLD: You mentioned that there was a doctor that you some expert information with respect to the composting MR. MS. provided process. MR. JACKSON: MS. ARNOLD: MR. JACKSON: Yes. Do you have that information? Yes, we do. MR. WILSON: If you would like, I can mark this now as an exhibit and pass it to the Board. MS. ARNOLD: That would be nice. MR. WILSON: That's her affidavit. I was going to do this sooner or later, so if you would like me -- MS. ARNOLD: Sure. MR. LEHMANN: I would entertain a motion from the Board to accept this and enter this as Respondent's Exhibit -- Composite Exhibit A. Page 60 September 26, 2002 MS. SAUNDERS: So moved. MS. GODFREY: Second. MR. LEHMANN: And we have a motion and a second. I'm sorry, Ms. Saunders had given the motion. Ms. Godfrey had seconded that motion. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries. Court Reporter, please note that. If you would proceed, Mr. Wilson. (Whereupon, Respondent's Exhibit A was entered into the record and the meeting continued as follows:) MR. WILSON: Does Ms. Arnold have any further questions? MS. ARNOLD: Okay. I haven't had an opportunity, nor has my staff had an opportunity to look at this report, so we may have another question with respect to the report and the -- MR. LEHMANN: If you would take the time just to look it over. MS. ARNOLD: Yeah. I just have one question. Approximately how much time will it take for the material that you have brought onto the property to decompose? MR. JACKSON: I plan on buying a machine about a year from now, after the following wet season, a sifting machine, where you put the -- the material on top of it and you sift it and you have that, so about a year from now, I'll be able to start using it. At the end of the following rainy season. MS. ARNOLD: Okay. Mr. Jackson, the -- the paragraph at the end of the affidavit provided by the doctor indicates that the pile is unusual because it is a large pile size and the material was not chipped or shredded, which makes it difficult to manage. Page 61 September 26, 2002 Would you conclude with that, that that is not a normal method for composting as you had previously noted, that she's approved of this method? MR. JACKSON: I'm actually afraid of the normal method. Granted, the normal method is a lot quicker, but my method is safer because it doesn't create a fire hazard, like what happened in Lee County. And that method is very time-consuming, very expensive and very dangerous. My method takes a lot longer, but it's safer and just as effective. MS. ARNOLD: Could you explain to me what the advice that she had provided you, with respect to the management practice to not -- in order to accomplish a more appropriate method? MR. JACKSON: Well, she suggested that I put Uria fertilizer, which is 46 percent nitrogen on the pile, which I have done. That increases the speed of it, and during the dry season, continue watering it like I have. MS. ARNOLD: So she made no reference to the size of some of the material and the fact that -- MR. JACKSON: She-- MS. ARNOLD: -- it wasn't mulched? MR. JACKSON: -- said that it would be quicker and more efficient, but, time-wise, but this method also, as she stated, does work. MS. ARNOLD: So she made no reference to the size of the material in that it should be reduced? She says the ideal method would be to have it MR. JACKSON: in smaller pieces. MS. ARNOLD: Okay. At any time, did you consult with the Planning Department or the County to determine whether or not what you are currently doing, or what you plan on doing requires permits? Page 62 September 26, 2002 MR. JACKSON: I knew when I started the nursery, I would need a permit. I've been composting all my life. You have some yard stuff. You stick it in a pile and you compost it. This is just a larger scale because I'm not doing it just for my home use. I'm doing it for future nursery use. MS. ARNOLD: Okay. So-- MR. JACKSON: And it's an agricultural project. MS. ARNOLD: Okay. Is that a yes or a no. Did you consult the county? MR. JACKSON: No, I did not. MS. ARNOLD: Okay. I have no other questions. MR. LEHMANN: Well-- MR. FLEGAL: Our turn? MR. LEHMANN: I'm sorry? MR. FLEGAL: Our turn? MR. LEHMANN: Yes. We don't have any other evidence from the Respondent; is that correct? MR. WILSON: Let's see. I may have one more question for Mr. Jackson, if I can remember what it was. Oh, you are not running a landfill out there, are you? MR. JACKSON: Absolutely not. MR. WILSON: Have you got any arrangements with people to accept material for deposit on your property and hiding in the lower areas for a fee? MR. JACKSON: Absolutely not. MR. WILSON: Okay. No further questions. MR. LEHMANN: If everyone would have a seat, we'll go on. MR. FLEGAL: Are we not going to get to ask Mr. Jackson any questions? Page 63 September 26, 2002 MR. LEHMANN: Oh, I'm sorry. I apologize. I thought you-all were done asking questions. MR. FLEGAL: We didn't get a chance to ask yet. MR. LEHMANN: From the Board, you're turn. MS. SAUNDERS: I have two questions. Is the compost pile size complete at this time, or are you still adding to it? MR. JACKSON: I stopped adding to it since this case happened. I was planning on getting a couple hundred more loads, but I stopped getting the loads when this case started. MS. SAUNDERS: If the case finds that this is a -- an adequate, I mean, a compost heap rather than litter, do you plan to continue adding to it? MR. JACKSON: I would like to add a couple hundred more loads, yes, because I want -- my nursery business, I want to do Areca Palms and do privacy hedges and I'm going to need top soil to do that, so that would aid my business so I could start right away. I wouldn't have to buy it which would run into a lot of money. So I would like to add to it, yes. MS. SAUNDERS: Just out of curiosity. I note the investigator was not allowed on the property. MR. JACKSON: Right. MS. SAUNDERS: Do you have an objection to him going on the property, periodically? MR. JACKSON: This particular-- Jeff, I would. Another code enforcement, I wouldn't. Jeff was very argumentative. He wanted to go on the property. I have large dogs. He called the -- he called the dog pound or whatever, the animal control on me and everything. And I -- basically threatened my dogs. The dogs are my babies, so because of his actions, I -- I could let another inspector. I prefer not him. Page 64 September 26, 2002 MS. SAUNDERS: Okay. Are you being compensated by anybody for having this fill placed -- or this material placed on your property? MR. JACKSON: No. Absolutely not, no. MS. SAUNDERS: Are you compensating them.9 MR. JACKSON: No, I'm not. MS. SAUNDERS: Okay. So it's a bargain. MR. JACKSON: It's a win-win situation. They got the fill. I got the organic material that would help my -- greatly help my business in the future that I have been planning for five years now. I just have to work for a living. All this stuff costs money. The electric costs money. The plumbing costs money, and I'm going to do that slowly while I earn -- I've still got to pay a mortgage -- I've still got to pay everything else. So I'm working a regular job, and hopefully get this business going, and when I start making money on my nursery business, then I can not work my regular job and have a full-time nursery. MS. SAUNDERS: Okay. Thank you. MR. LEHMANN: Ms. Godfrey. MS. GODFREY: Yes. Let's see. The third paragraph, Ms. Hampton states that Mr. Jackson advises me that he intentionally had this material placed on his property so that through a process of composition, he would produce soil, which would be valuable in nursery and landscaping. She didn't mention that you had planned on doing this. It was like you were going into business to sell this. MR. JACKSON: I wasn't really. That wasn't my original intention. I didn't realize the value of it. Now, that I have the legal expenses and stuff like that-- MS. GODFREY: Yeah. Page 65 September 26, 2002 MR. JACKSON: -- so it is a present consideration. It wasn't my consideration when I originally got the farm. Now, it is. Just for legal expenses and stuff like that. MS. GODFREY: Yeah. Because she did this on September 24th and the size, she also noted that in the last paragraph, on page one that Mr. Jackson's passive composting method involves simply stacking the material in piles to decompose over a long period of-- a long time period with little or no agitation and management. The pile is unusually because it is a large pile size and the material was not chipped or shredded, which makes it more difficult to manage, but it consists of material which is appropriate for composting, and is, in fact, a passive compost pile. I advised him about management techniques in order to accomplish what he wants and he has begun to implement that advice. Because he intends to rely mostly on passive strategy of letting the pile naturally convert to a richer soil, his process will take longer than one in which management is more active if the soil is turned on a regular basis. However, the process of decomposition is inevitable and will occur and will result in a soil product with -- with enhanced value in the commercial market. The activity Mr. Jackson is engaging in is clearly agricultural in nature. Some of the size-- I do composting, you know, for my garden and stuff. Some of the size of the logs you have in there, you're grandchildren will probably be here. MR. JACKSON: You'd be surprised. Yeah. The outside of the pile isn't, but I have taken a metal stick and I've stuck it in. The outside of pile isn't decomposing yet, but the inside -- MS. GODFREY: Uh-huh. Page 66 September 26, 2002 MR. JACKSON: It's almost plat soil right now. There are logs in it, but the outside doesn't decompose that much, but the inside does. That's why I piled it up like that. MS. GODFREY: Uh-huh. MR. do is take MS. MR. JACKSON: -- and then take the other stuff, stick it on a sifting machine, sift it through, and then take any large particles, put it with the other particles and that will be future compost, so -- JACKSON: -- so the inside would. So what I'm going to a loader and scoop that outside layer out -- GODFREY: Uh-huh. Because you have to agitate that. Yeah. You have to agitate that. Yeah. Yeah. About a year away, and I'll have MS. GODFREY: MR. JACKSON: MS. GODFREY: MR. JACKSON: It's going to take longer Well, some of the particles will -- Yeah. -- but the big ones, you put them in a separate usable top soil out of it. MS. GODFREY: Yeah. But -- okay. than you think, because it wasn't chipped. MR. JACKSON: MS. GODFREY: MR. JACKSON: pile and let them further decompose, and you still have usable soil. MS. GODFREY: Yeah. Are you going to be using the chemicals like, you know, you-- MR. JACKSON: I just recently started putting the Urea fertilizer that -- that the scientist recommended. MS. GODFREY: Yeah. Because you can also get something to put on there for wood that breaks it down quicker. It's an organic -- MR. JACKSON: Right. MS. GODFREY: Bugs. Well, if he wants to do it naturally, in an organic format. Page 67 September 26, 2002 MR. MR. MR. MR. MR. MR. MR. whatever, MR. MR. MR. organic. MR. FLEGAL: the county's exhibit? MR. JACKSON: I don't use chemicals if I can afford it. MR. LEHMANN: Mr. Flegal. MR. FLEGAL: Mr. Jackson, this material, these piles and piles, however big this is, this is not material you cut down from your existing property; correct? MR. JACKSON: No. FLEGAL: This is material that-- JACKSON: I had-- FLEGAL: -- someone brought onto your property? JACKSON: Yes. FLEGAL: -- with your permission? JACKSON: Yes, I asked. FLEGAL: Okay. And there is, other than trees, grass, and you say soil, there is nothing else there; correct? JACKSON: On that particular compost pile? FLEGAL: In these piles. JACKSON: No. In that pile, no. It's one hundred percent Okay. Would you look at page 16, please, of Bottom of page 16. MR. JACKSON: Uh-huh. MR. FLEGAL: Litter, any discarded. Since this isn't yours, you had it brought in by somebody else, this is discarded material that they trucked to your property; correct? MR. JACKSON: It's discarded to them. It's valuable to me. MR. FLEGAL: Correct. End of sentence. Further down, it says -- after you get through with all the trash and paper, we get to wood and wood products. Skip some other stuff, we get to grass clippings, tree limbs, trunks, roots. Page 68 September 26, 2002 I think what you got is litter. It may going to be compost. You didn't cut it down off of your property. You had other people truck it in. It was discarded material that you agreed to take; correct? MR. JACKSON: It's valuable top soil in a year or so. MR. FLEGAL: Is it discarded material that you agreed to take onto your property, yes or no. MR. JACKSON: Yeah. I guess you could consider it as that. MR. FLEGAL: Thank you. MR. JACKSON: It's valuable top soil. MR. FLEGAL: So you do have litter-- MR. JACKSON: I strongly disagree. MR. FLEGAL: -- that you plan to do something with? MR. JACKSON: I -- I disagree with it being litter, and I -- MR. FLEGAL: I'm reading the county's description. Tell me if the county is wrong. MR. WILSON: I must protest gently that the Witness is being argued with over a matter of law, not fact. MR. FLEGAL: Well, the fact is it's written in English. MR. LEHMANN: So noted. Cliff, go ahead and proceed. You've made the point. MR. FLEGAL: Okay. You haven't -- I'm still trying to be convinced that this is -- what you're doing is -- how do I phrase this? Within the agricultural, I guess, zoning approval that takes you away from 1.5.6 and 2.1.15. Can you get me straight on this? MR. JACKSON: Well, if you go with the expert, Monica, she's a leading scientist in the field and she says right here that it's a hundred percent organic under agricultural purposes. Right in her affidavit, right here(indicating,) that you have it in front of you. MR. FLEGAL: Okay. And did you check with the county to see if that's what they consider an agricultural use? Page 69 September 26, 2002 MR. JACKSON: I didn't check with the county. I've been composting since I was a little kid. This is just on a larger scale. MR. FLEGAL: That's not what I asked you. What I asked you, is did you check with the county? MR. JACKSON: No, I didn't check with the county. MR. FLEGAL: Okay. Thank you. No further questions. MR. LEHMANN: Mr. Ponte. MR. PONTE: I have no further questions. MR. LEHMANN: Chris -- oh, I'm sorry. Mr. Lefebvre? MR. LEFEBVRE: Not so much a question, but a comment. would be a conditional use if you have an active business or As Ms. Arnold stated This operation on that property; is that correct? earlier? MR. LEHMANN: MR. LEFEBVRE: business, in a sense? MR. JACKSON: yes. Uh-huh. But it's not currently an active agricultural It takes a lot of money and time to do that, MR. LEFEBVRE: That's all I have to say. MR. LEHMANN: Chris. MR. RAMSEY: So -- so it's clear that you don't have a -- you're not selling top soil at this point, you're not -- MR. JACKSON: year. MR. RAMSEY: Okay. business; is that fair to say? MR. JACKSON: soil, but now I am, so. MR. RAMSEY: Not at this point. It won't be ready for another So really this is just a plan future Well, I wasn't actually planning on selling top Okay. Page 70 September 26, 2002 they MR. LEHMANN: Michelle, I have a couple of questions, and all revolve around the code. MR. FLEGAL: Are we done with him? MR. LEHMANN: Not quite. MS. ARNOLD: Can I -- can I ask Mr. Gordon(sic) one question? MR. LEHMANN: Go ahead. MS. ARNOLD: Could you show me where the doctor has indicated that you have a hundred percent on site? MR. JACKSON: Well, I read it. The last line. "The activity Mr. Jackson is engaging in is clearly agricultural in nature." MS. ARNOLD: Where in this affidavit does it say that you have a hundred percent horticultural material on the site? MR. WILSON: Mr. Chairman, the affidavit speaks for itself. MR. LEHMANN: MS. GODFREY: MR. LEHMANN: I would agree. I don't agree. Michelle, go ahead. I agree unfortunately that the affidavit does speak for itself on that issue. MS. ARNOLD: I would have to object that it doesn't say that there is a hundred percent horticultural debris on the site. It -- it just says that the activity that he's planning is, in her opinion, agricultural. MR. LEHMANN: And I would concur with you on that issue. It does not say that it is a hundred percent agricult -- or a hundred percent compost material. MR. WILSON: I stipulate that it doesn't. MR. LEHMANN: That it does not? MR. WILSON: Correct. MR. LEHMANN: That's correct. So let's proceed. I think we all agree on that issue. Anything else? I sure would like to ask a few questions. Page 71 September 26, 2002 MR. MR. MR. MR. MR. MR. second, in case. MR. WILSON: Okay. WILSON: Go ahead. LEHMANN: Okay. WILSON: Of-- of this witness? LEHMANN: No, Ms. Arnold. WILSON: Okay. May we excuse Mr. Jackson? LEHMANN: No. I would like to have him here just for a MR. LEHMANN: Ms. Arnold, again, we are looking at this particular case based on a very -- confined code sections. And those code sections are basically whether or not we have litter, okay? Whether this material that is brought onto the site is litter. Now -- now, as Cliff had indicated-- MS. ARNOLD: I -- I have to make a correction. It's -- litter is one violation. We also have two others that are pertaining to the use. MR. LEHMANN: Correct. MS. ARNOLD: Okay. MR. LEHMANN: Correct. Now, my question again is, if I had a -- well, let me put it to you this way: If I were going to compost on my property, is there a certain volume of material that I could bring into my property that would be permitted under a normal use as a residential/agricultural piece of property, without getting into a question of am I doing this for a commercial purpose or a personal purpose. Is anything in the code referencing that issue? MS. ARNOLD: There is nothing that I'm aware of that's in the code that says anything to the amount of material that one can use for composting. MR. LEHMANN: And again, we're specifically citing the code sections that have been cited in the violation? Okay? MS. ARNOLD: Correct. Page 72 September 26, 2002 MR. LEHMANN: All right. Next, ifI am bringing in material for the purpose of composting, do I need a permit to do that in an agricultural zoned piece of property? MS. ARNOLD: You've heard testimony from the Planning Director that says the extent to which Mr. Gordon(sic) has brought material and has testified his intent to use the property for, would require a conditional use. MR. LEHMANN: A conditional use permit. MS. ARNOLD: Yes. MR. LEHMANN: Which, of course, we don't have in this particular case? MS. ARNOLD: Yes. MR. LEHMANN: Okay. But again, that has nothing to do with the violation. That has to do with referations to the violation itself. MS. ARNOLD: Correct. MR. LEHMANN: How do we go about obtaining compliance. Okay. That basically ends my questions. Any further questions from the Board? MR. RAMSEY: Just a comment, if I may. MR. LEHMANN: Go ahead. MR. RAMSEY: On page 20 of our packet, it's Section Ten. It talks about waste materials management. Now, although not directly on point, it does give some, I think, insight to the -- to the whole issue. It says inert waste materials may be buried on site after a valid building permit for such site has been obtained. We're talking about building a house, but it does go on and say, inert waste materials which have not been properly buried or disposed of are hereby classified as litter. Page 73 September 26, 2002 And then it goes on to say how they are to be managed while they are on site. To me, the logical progression of that indicates that, you know, there's -- there's some provisions for management of these types of materials on a typical building site, so if you are going to do something which is A typical, like an enormous compost pile, you need to have some -- either permit approval. You just can't do something, because clearly, the size of this pile doesn't conform with what would be customary management of these types of materials, so just being able to do it without any type of, you know, permitting process or -- or approval process seems somewhat incongruous with what's -- what's already spelled out in this section. MR. LEHMANN: Any other comments? I would close the public hearing section of this case. If you all would like to have a seat, I'll open it for discussion from the Board. MR. WILSON: Excuse me, Mr. Chairman. MR. LEHMANN: Yes, sir. MR. WILSON: I -- I had hoped to have an opportunity for argument, brief argument. Do I do that now or-- MR. LEHMANN: Closing argument? MR. WILSON: Beg your pardon? MR. LEHMANN: You would like to do a closing argument? MR. WILSON: Yes, I would. MR. LEHMANN: That's fine. Please proceed. MS. ARNOLD: Okay. And we would ask that the county have the same opportunity. MR. LEHMANN: You certainly can, yes. MR. WILSON: I confess that I'm handicapped a little bit by not being a regular attorney before this Board, and somewhat out of my depth, but I've done the best I could to acquaint myself with what we were being charged with. Page 74 September 26, 2002 The charge, as I see it, on page three of the materials, unless I'm not following it, does not go beyond an allegation that was reflected in the basic citation itself, which was handed Mr. Gordon(sic) or mailed to him, or posted by Mr. Letourneau, which was for litter. I -- I note with interest Mr. Ramsey's comment about section -- the section on waste management, waste materials management, but that has never been mentioned prior to this time. And it refers to -- I think the intention of that section is limited to situations where the waste material is created on site. And the following paragraphs talk about containment of the materials generated on site -- so this doesn't even fit section. I -- I am inclined to make a formal motion, if that's necessary, or at least, urge the Board to realize that Mr. Jackson is a humble property owner trying to comply with the law, who did, after he was cited, approached through me and get guidance on what the law required. And I was frankly shocked when Ms. Belpedio said it's not their job to point out what specific violations we're guilty of until after they make some kind of case at this hearing. Then, they are going to let us come in and beg for some kind of remedy. That's not the American way. It's not due process of law. It's not fair to do that in this hearing. I urge you to limit the consideration to this citation only. Now, I give you assurance that from this day forward, Mr. Jackson's going to, once again, repeat his appeal for help from the county in understanding what sections apply, and why. And there may be further citations if we cannot come to an agreement on what the law is. But that's what the process is. Identify what the issue is, see if you can resolve it. If not, come before the Board and, if necessary, seek legal clarification as appropriate. Page 75 September 26, 2002 So all I'm going to do now is finish by saying this is about whether the definition of litter is met in this situation. Again, the bottom of page 16, Litter shall mean any discarded, used or unconsumed substances or waste. Now, Mr. Flegal has made the point that at one point, they were waste. And, Mr. Flegal, I make this point. When manure is produced by animals, there's nothing more waste than that, and yet, it's an agricultural product used as fertilizer, which everybody recognizes as such. And all Mr. Jackson did was to take material that would have gone to a landfill somewhere in this county, or would have been a problem for Collier County, and he tried to do something good with it. Initially for his own property, and now for commercial use, which may generate revenues and taxes for the county. Does he want to do it legally? Of course he does. Is it litter? No, gentlemen and ladies, it is not. And I may say, one last word on the definitions. The initial sentence of the litter definition governs everything that follows. All of those examples further down, are examples, once you make a finding that it was waste, or I submit to you that the governing sentence requires you to make a factual finding that in his hands, it was waste, and I submit to you that whether something owned by somebody like this is waste or not, depends on his intention. If he had been letting this stuff just pile up for months without having any intention to use it constructively, I would stipulate with you that it was waste and litter. But that's not what happened. Before the first ounce of that stuff hit his property, he had a constructive and valuable use for it, and therefore it doesn't fit that Page 76 September 26, 2002 first sentence. And none of those examples that come down below, fit. Thank you. MR. LEHMANN: Ms. Arnold? MS. ARNOLD: Ms. Belpedio. MS. BELPEDIO: Jennifer Belpedio, for the record. I would like to first address Mr. Wilson's comment about what I -- what I said, and he gave his personal feelings about how he was outraged. I know you were all here a couple of moments back and I know you know what it was that I intended to convey and what I had said, and I'm not really going to get into the legitimacy of-- of the representations made by Mr. Wilson. But with that said, I'd like to just take this case from a systematic approach and take each violation one by one. We'll -- we'll hit the litter violation first, and that's in 99-51, Section Six and Section seven. The language in Section Six says that it's unlawful for any person to throw, discard, place or deposit litter. Well, you've heard testimony that there is something on Mr. Jackson's property. Whether it's dropped there or placed there, I don't believe that we need to get caught up on. The second part of that section is whether or not it's public property or private property, highway or street. I think it's -- there's been testimony that it's private residential property, but if you didn't think that appropriate, it's still public, private, highway, street; anywhere essentially you can't have any litter in any zoning district of any part of the county. The -- Section Seven said it's unauthorized to have an accumulation of litter, and I'll -- and I'll get to the definition of what litter is in a second, upon any property that's vacant or improved. Page 77 September 26, 2002 We've heard testimony that this is improved property, residential property where Mr. Jackson has him home. Again, it talks about public street, alley, you've heard that it's private property. But I guess what really is at issue in this -- in regards to violations in this section, is what exactly is litter? We originally -- I was originally questioned by Mr. Chairman about, you know, whether or not this was, in fact, discarded. And I understand there are different opinions, and either one is plausible. It's possible that we could consider it discarded litter because somebody else discarded it, or it's not discarded because Mr. Jackson intends on using it for his own personal use for his business. However, if you look at that section on page three, you'll see that litter is also defined as something that's used, as well. They have some leeway there and you may not all agree, but ultimately you have to get to a unanimous decision. Then it goes on to say what litter is, and that's garbage, trash. We all agree that there is no evidence that there is no garbage or trash there. But at the later part, trunks, roots, undergrowth and materials produced by clearing and grubbing. You have heard testimony from all three persons that were the lay person, the witnesses you have heard, from Mr. Jackson, himself that those materials are contained on the property. You've heard from our witness that was his neighbor, and the county's witness that those materials exist, and you've heard from the investigator who had a pretty clear view and brought forward some pictures of what, in fact, was there. I think that you can see that there are tree trunks and limbs there as well. For that reason, there is clearly a violation for litter on this property. But what you should also understand is that there were two Page 78 September 26, 2002 other provisions that were cited, and Land Development Code 1.5.6 was also referenced. That's a use -- provision -- I'm just going to turn to that section so I have it in front of me. Essentially, the main words in that section are that no land should be used other than specifically permitted by the provisions of each zoning district. What you have heard is that this is an agriculturally zoned district, with a mobile home overlay, which I don't believe affects the analysis, and that there is currently material on the property that is not permitted, and when you look at the word permitted, it's my -- or the county's interpretation of what permitted is what is permitted as a matter of right. What is -- what is authorized by county code. You heard from the Director of Planning that accumulating this sort of composting, or alleged composting products on one's property requires extensive approval by the county in a request for a conditional use permit. And that's -- that's brought before the Planning Commission. You've heard testimony that Mr. Jackson has not sought that permit. He's not applied. He's not come to the county to determine whether or not he could put those materials on his property. Because of that, he is in violation of 1.5.6. If you go to 2.1.15, it's a very similar provision. It's a little more specific, and that provision states that any use, and I'm paraphrasing, giving you the -- the -- the appropriate language that's the subject of the violation. Any use not specifically permitted in a zoning district as a permitted use or used by reasonable implication, shall be prohibited in such zoning districts. It's the same analysis as 1.5.6. This use as a composting is not permitted in agricultural districts absent the conditional use permit, if that is even obtainable. We can't even say whether or not he would get that permit. Page 79 September 26, 2002 And I would submit that if he were to apply for that permit and go through the process, he would have to inform the county as to what the -- the entrance to his property is and how the trucks are going to be getting there, and there's -- it's very extensive. It's very important. I -- I would also like to remind you that these are all separate violations. You may find that it's -- it's litter. You may find that it's an unpermitted use. But regardless, in the end, if you find that any one of these provision he is in violation of, the method to abate his violation is to remove or to get the permit if that's appropriate. That's really all the information that I have for you, but I strongly urge you to find a violation. MR. LEHMANN: Thank you. After hearing closing arguments, I would like to close the hearing portion of this case. We will now proceed with comments and discussion from the Board. MR. FLEGAL: Mr. Chairman, I've said it before so I'll be the first to stick my neck in the noose, so to speak. I do believe, in fact, that this is considered litter. It was discarded by other people and brought to this site and deposited. The Respondent said that he plans to use this in a commercial operation. His attorney's referenced to cow manure being waste, that's fine. The cows are on the property and they drop that. This was not on the property. It was brought there and deposited and discarded. I don't see the correlation. I think it's clearly litter, whether we like it or not, as listed in the ordinance, which is what we're here to either find fault with, which we can't do anything about, or the person guilty of not abiding by. Page 80 September 26, 2002 That being said, you go to the other two sections. I think he is clearly using the property for something that is not permitted. His own statements were it was going to be a commercial operation. If you are going to do that, you need a permit. He doesn't have one. It's pretty cut and dry. MR. LEHMANN: Mr. Ponte? MR. PONTE: I think there are violations here, but I don't think one of the violations involves litter. Mr. Flegal talks of litter as being discarded and had referred to 16 -- page 16. Material was not discarded by the Respondent. Material was acquired and solicited by the Respondent. It's not litter, so although other violations may exist in this case, I don't believe that litter is one of them. MR. LEHMANN: Ms. Saunders? MS. SAUNDERS: I fully agree with Mr. Ponte. I don't believe this is litter either. Whether we agree with the method of composting or not, I believe that that is what's going on, and I do think we have expert testimony that says this is a hundred percent -- this is an agricultural use, and therefore a permitted use. And I don't believe you need a conditional permit to prepare for starting a business. You need it once you start the business. So, in my mind, at this time, there -- I don't see any violations. MR. MR. MR. MS. MR. MR. LEHMANN: LEFEBVRE: LEHMANN: GODFREY: LEHMANN: Mr. Lefebvre? No. No comment? Ms. Godfrey? I don't have anything. Mr. Ramsey. RAMSEY: Well, I -- I tend to agree in part, I think what's been said by a number of members, but I think with regard to the -- the conditional use. Page 81 September 26, 2002 I think there is -- I think there definitely is a violation, and the reason I think that is because the issue of litter notwithstanding, I think it's difficult to say, well, you know, we're going to deposit this material on the property, and if there is a violation, we'll call it something useful. And I think that's a sematic argument that, you know, it may be successful here, but I think it is a sematic argument and maybe is -- is something that may need to be addressed within the code itself and perhaps not within the confines of this board. But with regard to the conditional use, if you are going to start a business and it's permitted in that zone, you know, if you are going to start an agricultural business, you can't bring the tractors on the property, you can't start plowing and say it's preparation and I'm not starting yet just because I haven't sold a plant. I think if you are going to start a business and begin a business, you need to have a permit to do that. MR. LEHMANN: Well said, and I would-- and my opinion, I would mirror exactly what you said. I think that we -- I personally have a difficult time with the code sections defining this as litter. I think that you do have some composting going on and it may be a valuable product, whether it's valuable to you or somebody else. My concern, obviously, is whether or not we have complied with the use of the property. And I feel in this case we certainly have So again, having said all that, let's go forward with a finding of not. fact. I would entertain a finding of fact in this particular case. Any volunteers? Hearing none, I guess I'll do the dirty job. I move that we do have a violation in this particular case, and the violation is specifically a violation of Sections 1.5.6 and 2.1.15 of Ordinance 91- Page 82 September 26, 2002 02 as amended by -- as amended of the Collier County Land Development Code. The description of violation is an unpermitted use of the property, I would assume. I again feel that we don't necessarily have a violation of Section Six and Seven with regard to litter. Jean, did I state that close enough? MS. RAWSON: I think you did. MR. LEHMANN: To get the general idea. MS. RAWSON: I understand. MR. LEHMANN: Okay. Thank you. And I would entertain a second. MR. PONTE: I would second that. I think that motion is right on the button. MR. LEHMANN: Any discussion? MR. FLEGAL: Again, just for the record, I wish you would amend your motion to include litter, and I understand your comments. I just make that request. MR. LEHMANN: I understand. The motion has been made and a second by Mr. Ponte. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none opposed, the motion carries unanimously. Let's proceed to an order of the Board. And I really would like a volunteer. MS. SAUNDERS: All right. I'll make a -- I'll try. I recommend that the Code Enforcement Board order the Respondent to pay all operational costs incurred in the prosecution in this case, period. And that the Code Enforcement Board order that the violation, which is obtaining a proper permit, be obtained within 90 days or a fine of $50 per day be imposed for each day the violation continues. Page 83 September 26, 2002 MR. FLEGAL: I have a problem with that. We're only giving him one option, which is to obtain and permit, and suppose he can't obtain the permit? I think you need to make it broader than that. MS. SAUNDERS: Okay. MR. FLEGAL: Either he has to remove the materials and/or retain -- obtain a permit. You have to -- when you just say obtain a permit, he could go to the county and the county refuse to give it, and it's not his fault if the county won't give him one. I think you need to do more than just say, obtain a permit. MR. LEHMANN: I personally would like to keep it as broad as possible and just chief components, period, within a certain period of time. My question, Ms. Amold, is that if he were to go the permit route -- MS. ARNOLD: Uh-huh. MR. LEHMANN: If that was a viable solution for him, is the 90-day period of time sufficient to accomplish that task? MS. ARNOLD: I don't think so, if he has to get a conditional use. I think he could possibly submit one, but not obtain one within that time period. MR. LEHMANN: What would be an appropriate time period? MS. ARNOLD: If-- if you were to require him to submit the permit, then if it's submitted and then an action taken within a time period after that, that would be out of his control, you know -- MR. LEHMANN: But submission does not achieve compliance. MS. ARNOLD: I would say probably the way things are going right now, it would probably be -- 120 days would be probably better to obtain -- MS. SAUNDERS: For compliance or for submitted for compliance? Page 84 September 26, 2002 MS. ARNOLD: For compliance. MR. PONTE: Michelle, I thought that when your witness from planning was asked that question, she seemed to indicate it was going to take a lot longer. I mean, it sounds like half a year, nine months. Could we ask her what her estimate might be? She seemed to say that it would take a long time. MS. ARNOLD: And -- and if the delay is on the side of the county with respect to the review process, we would always bring that back to the Board in any fining of the Respondent. And we would support reducing the fine if it got to that point to take into consideration the delays were caused by the county. MR. LEHMANN: Bear in mind we have a finding of fact that basically says a violation exists in the use of the property. MS. ARNOLD: Right. MR. LEHMANN: Okay. Forget the litter issue. My concern in defining a time period for compliance is that the Respondent has all options available to him to proceed in a proper manner and a timely fashion. MS. ARNOLD: Right. MR. LEHMANN: If we are looking at obtaining permitting for a conditional use permit, and he is successful in doing that in a six- month period, that's great. He goes on with life as he intends it and nothing occurs. If he does not-- if he is not successful in obtaining that conditional use permit-- MS. ARNOLD: Uh-huh. MR. LEHMANN: Then he has to achieve compliance by some other means, which may involve removal of the materials. That's not a six-month process. MS. ARNOLD: No. Page 85 September 26, 2002 MR. LEHMANN: Okay. So that's the dilemma, the time period. MR. PONTE: Well, if you do it perhaps in two plats and said that the permit must be applied for by X date -- MR. LEHMANN: Uh-huh. MR. PONTE: And leave the actual compliance open, not open- ended, but further down the road, just so we don't have traffic, there would be traffic in this case if you say 90 days or a short periods of time like that. The application must be made. MR. LEHMANN: My concern is with just writing the order out for submission, is that that provides me a huge loophole. The Respondent can go ahead an submit paperwork that isn't even close to being acceptable and he's complied with the Board's order. I want actual compliance of the codes and not necessarily our order, per se. MS. ARNOLD: A suggestion would be to make a submittal by a certain amount of time and then within a determination of that submittal, whether it's an approval or a denial, give another time frame for compliance. MR. FLEGAL: I -- I'm kind of leaning toward our Chairman's. I would like it to be really simple. Why don't we just issue an order saying you achieve compliance by X? And it if has to be six months, let's pick six months. It has to be five, five; whatever. Pick a day. And whatever he's got to do, he does. If he doesn't do it, he starts getting a fine. Let's not get into, submit a piece of paper by this date, do this by -- I don't like all those dates. I like it drop-dead. Get it done by this date or you are going to get fined, period. However you get there is you're problem. If he submits paper and it's not working, he can always come back and ask for an extension of time. Page 86 September 26, 2002 If it's some problem, and we can hear that and either say, yeah, he's right, the county is holding him up, or if he has made mistakes, we can decline it. But let's give him a date, and -- that he can focus on. And he'll know and his attorney will know that if you don't do it, the hammer is going to drop on you. How you do it is your problem. If you want to truck it out, cool. If you want to submit paperwork, then I would submit that if I were him, I'd be working to get that paperwork quick to get us off his back. MR. LEHMANN: I think in general we have a Respondent here that has moved forward with his actions in good intent, possibly not realizing that the permits are required and so forth, and maybe not being diligent enough in his research prior to proceeding with it to make sure that things were taken care of. And obviously, the Board agrees that we have a violation based on the fact that we have an unpermitted use, in a sense. So I agree with -- with Cliff. I think it should be short and sweet. I think that the options for the Respondent to achieve compliance should be as broad as possible, because, again, this Board is looking for compliance. We're not necessarily looking for it in a particular way. We just want it to comply with whatever the governing codes are, by whatever means that the Respondent has to take to accomplish that. MS. ARNOLD: I understand where the Board is going. My only concern is if the question of removal is not included in the motion at all, there may be the possibility that the Respondent and his attorney does not agree with staff with respect as to what would be compliance. MR. LEHMANN: Uh-huh. MS. ARNOLD: Because he's already indicated that he's not in agreement with our opinion. Page 87 September 26, 2002 MR. LEHMANN: That's a point well taken, yes. Well, having said that again, do we hear -- do I have a motion for an order of the Board? MS. SAUNDERS: I'm still troubled by the idea that -- I know we're not going to tell him what to do and have a time frame to do it in, but I've heard from the county and the staff that it basically takes, probably four to six months to get a conditional use permit, if you are going through a public hearing process. Logically, a person would go through that. You can't -- so I'm very uncomfortable with saying after six months, it must be resolved, because you wait for the process to happen, if you are denied, you got two weeks left to remove the product -- remove the landfill. That doesn't seem appropriate to me. I -- I think despite wanting it to be as broad as possible, what I'm more comfortable with is saying -- giving somebody, perhaps 120 to 180 days to remedy the sim -- to obtain proper permitting, or if not obtained, an additional 90 days to re -- to correct the violation. MR. LEHMANN: But -- is that a motion? MR. FLEGAL: No. MR. PONTE: You know, If we would do that -- there are 2000 truck loads. To remove it will take a considerable amount of time, even -- I did a little calculation of it. If you would work around the clock 30 days, you would be moving 60 truck loads a day. That's not a realistic time table to move 2000 track loads. MR. FLEGAL: Well, but an erroneous comment about the process to get a permit, in that process, he has to submit paper work to the county, they have to look at it and through the Planning Commission, I assume they give concurrence that should be recommended to get conditional use and so on and so forth. Page 88 September 26, 2002 If the county says no to all that stuff, you know, before it even gets to the public hearing part, he at least knows that the county is not on his side. All he's got now is -- are the people in the area on his side and going to say, you know, you ought to grant this fellow his conditional use, so I think there is steps along the way that he would know that it looks like this isn't going to fly, that I'm fighting a losing battle here. And then he can proceed to start clearing his land, so I don't have a problem putting a six-month date on it and saying, this is the day. And, again, if it doesn't work, he always has the option to come back here and say, ladies and gentlemen, I've tried. This isn't enough time. Can you give me some more time? And we have the authority to do that. MR. LEHMANN: Ms. Arnold, the time period to obtain a conditional use permit is roughly, how much now? Are we talking months, two, three, four, six? MS. ARNOLD: Yeah, months. MR. LEHMANN: I'm sorry? MS. ARNOLD: Months. MR. LEHMANN: How many? MR. FLEGAL: Four, five six? MS. ARNOLD: It's -- once it's submitted, it -- it could take an additional -- yeah, the Planning Director is here. It's her staff that's reviewing it-- MR. LEHMANN: That's -- that's fine. Please. MS. ARNOLD: So I'm going to have her answer it. MS. WUERSTLE: My suggestion would be if you are going to put a time frame on it and are concerned how long it's going to take Page 89 September 26, 2002 to go through the entire process, is to require that they submit a complete application within, say, a three-month time frame. They are going to be required to put in -- the requirements for a complete application are outlined in the code itself. MR. LEHMANN: I'm not interested in having a submission. I want to know once they give you a complete application, how long does it take your department to process that and put your stamp of approval on it, assuming it's approved. MS. WUERSTLE: Once they give us a complete application, I would say three months, three to four months, tops. MR. LEHMANN: Okay. Thank you. MS. WUERSTLE: The issue is getting the complete application and the information we need to review it adequately. MR. LEHMANN: How long does it typically take the general public to prepare an application? Do you have any feel for that? MS. WUERSTLE: It can-- it can take, if the -- if the applicant is working diligently to address the requirements, they could get an application in a month or two. But sometimes, there could be a lag of six months or a year before all the information is in and complete sets of plans and the information we need to go forward to submit it. That's why I'm -- I'm saying that it's very important that we have a complete set of plans in an application within a reasonable time frame. MR. LEHMANN: Thank you. MR. FLEGAL: Mr. Chairman, I understand that. The incentive is on the Respondent. If we give him a drop-dead date that he do his best to get a quote, complete set of whatever, to the county. Because there is a date standing out there with a possible fine that's going to hit him unless he do that, so he now has an incentive, rather than -- well, I might work on it today, but then, no, I think I'll Page 90 September 26, 2002 take two months vacation. No. You better get it done because right around the comer is this big rock that's going to fall on you, so I'm still for a date, period. MS. SAUNDERS: Well, then let me offer this as a compromise. What I just heard was that it's probably three months to submit is reasonable, and four months to process. That's seven months. I'm going to propose that we simply say that the Respondent comply with -- correcting the violation within nine months. That gives him, you know, some steps along the way if it doesn't look like it's happening. I'm hearing from our own Planning Commission that it is reasonable, you know, to take that long or longer, and I think it's -- nothing else is going to happen in between. I -- I'm -- so, I'll make the motion -- MR. LEHMANN: One second. MR. PONTE: Before you make that motion, Rhona, let me just emphasize one thing. Planning also said, if you were to devote full time to this effort of getting the application, the Respondent in this case is -- has responsibilities elsewhere and it would be unlikely that he would spend full time -- MS. SAUNDERS: That's true. MR. PONTE: -- in getting up whatever has to be done to get this application out, so it will take him longer. MS. SAUNDERS: Well, let me ask this: I'm also comfortable with saying in one year, but that is going out pretty far. Are other people comfortable with saying, solve the problem in one year? MR. LEHMANN: Well, let's look at the time frame. We've got three months for the Respondent basically to submit an application. And according to testimony from the county, that's a doable time frame -- MR. PONTE: If you work on it full-time. Page 91 September 26, 2002 MS. ARNOLD: She said one month if-- MR. FLEGAL: One month-- MR. LEHMANN: One month? All right. So let's give -- let's say we give two months to do the application. That gives him 60 days to do what normally would take place in 30 days, if you worked full time on it. Then we have another three or four months, is that correct, to review and determine whether they are approved or not. MS. WUERSTLE: Uh-huh. MR. LEHMANN: I'm going to assume they will not approve, that they will reject. And we'll have to have the Respondent respond again to get a final approval, so we tack another month on. So in a sense, we've got six months that transpired now before the Respondent could realistically estimate getting an approval. MS. SAUNDERS: That's right. MR. LEHMANN: Now, we go through that process, six months later, he says -- he gets the answer, no. MS. SAUNDERS: MR. LEHMANN: MS. SAUNDERS: time. MR. LEHMANN: Uh-huh. Now what do we do? We have to give him-- build in some more It has to be removed or some other method has to be taken. Again, as much as I really do not like a one-year deadline, I think, in a sense, this is very realistic to this particular case. MS. SAUNDERS: Uh-huh. MR. LEHMANN: I -- I really do not like having cases extend out for such a long period of time, but if I've got 2000 truck loads to get out of there, and I've spent six months being told no, hopefully, shortly along that line, in less than six months, I will have realized the answer is going to be no -- Page 92 September 26, 2002 MS. SAUNDERS: Uh-huh. MR. LEHMANN: -- and start proceeding with removing things or other methods. But the bottom line is I agree with Cliff. We need to have a drop-dead date. It needs to be firm and it needs to be realistic. And quite frankly, I think a year is more appropriate for that period of time. MR. FLEGAL: My only drawback is that I would rather be in favor of something less than a year, six months, seven months, eight months, and when he finds out, no, he comes back before us and asks for an extension, so we know that he has tried his best and the county, and whatever the process is, has stopped him. He now needs some help to resolve the problem, and the help would be a couple of months or whatever to truck load all this stuff out, but that we know that he has come before us and said, look, I did everything I could. I've submitted all the paperwork, I've fought all the battles, and I lost. I need your help, fellas, and ladies. I would rather see that done than just give him the blank one year and a year from now, we may be faced with, okay, what are we doing now? I just throw that out that I would like to see something else, and he can come back. We've done it before. Let him come back and say, I've tried everything and it didn't work. I need your help. And I would be the first one to say, you got it. But I -- I think the pressure needs to be something that forces him to get this paperwork submitted, and saying, you've got a year to comply, just like we've been playing with the dates. Well, two months to do this, four months for that. If you give him a year, he doesn't even have to start thinking about this until three, four months from now, and then work at it. So there's no real pressure there. I think the pressure needs to be now. Page 93 September 26, 2002 MR. LEHMANN: Would you like to make a motion to that effect? MR. FLEGAL: I guess. My motion would be that we give the Respondent six months to come into compliance. If he fails to come into compliance within six months, that a fine be imposed of $100 a day, and also that the Respondent pay for any prosectorial costs. MR. LEHMANN: Do I hear a second? MS. GODFREY: I'll second it. MR. LEHMANN: We have a motion and a second. All those in favor -- let me just repeat the -- the order. It would be that the CEB order the Respondent to pay all operational costs incurred in the prosecution of this case and abate all violations through the removal of any and all litter and debris from the -- we'll change that to all material and debris from the described property to site intended for such use, like a landfill within 180 days or a fine of $100 per day will be imposed for each day the violation continues. MR. FLEGAL: Okay. I didn't say removal. It's whatever process he needs to do. MR. LEHMANN: Okay. Thank you for the clarification. MS. SAUNDERS: I don't think you can also call it debris and other landfill, because that's not what we found him in violation of. We found him in violation of having a compost -- an agricultural business that, in effect, wasn't permitted. MR. LEHMANN: MS. SAUNDERS: MR. LEHMANN: Okay. So noted. Try again? We have a motion and a second. MR. LEFEBVRE: Can we further amend that? To just include the last sentence, to allow for the investigator to access the property to verify compliance? MR. LEHMANN: That's fine. Page 94 September 26, 2002 MR. FLEGAL: Yeah. I don't have a problem with that. Yeah. The county needs to know, you know, what's going on and if-- if he doesn't want to comply, put it in our order. I don't have a problem with that. If he fails to do that, the county can notify us and we'll notify the Sheriff's Office to get somebody on the property. MS. ARNOLD: Can I ask why we don't want to indicate anything about removal? MR. FLEGAL: We just want it abated through whatever process, permits or removal. How he chooses to abate it -- MS. ARNOLD: Or-- or-- MR. LEHMANN: If removal is the only way to comply, that's fine. MR. FLEGAL: Whatever abatement process it takes, just abate the problem. Right now, he's cited for using the property illegally under those two sections. MR. LEHMANN: Jean, do we have that clarified, the order clarified for you? MS. RAWSON: I think you said that you want him to abate all violations within six months and allow an investigator to access the property to verify the compliance, or $100 a day. Is that what you said? MR. LEHMANN: Correct. Plus, operational costs. MS. RAWSON: Yes. I got that. MR. LEHMANN: Okay. We have a motion and a second. Any further discussion? Hearing none, all those in favor, signify by saying aye. MS. GODFREY: Aye. MR. FLEGAL: Aye. MR. LEFEBVRE: Aye. Page 95 September 26, 2002 MR. RAMSEY: Aye. MR. LEHMANN: Aye. Any opposed? MS. SAUNDERS: Opposed. MR. PONTE: Opposed. MR. LEHMANN: We have two opposed, five in favor. The motion carries. MR. WILSON: Mr. Chairman. MR. LEHMANN: Yes, sir. MR. WILSON: I would like to thank the Board sincerely for its thoughtful consideration of this somewhat unusual case. It's not clear to us right now whether we need to take an appeal or not, because if- - the reality is that if he can't get a conditional use permit, it may be financially impossible for him to come into compliance. He may lose his land. We'll have to cross that bridge when we come to it, but -- and this is my first time here. I'm just going to ask you what you think about this. I would like the Board to consider including in its order a Stay pending any timely appeal that we file and for the duration of such an appeal. MR. FLEGAL: No. MR. WILSON: In order to determine whether or not there is a legal violation. MR. LEHMANN: We -- we normally follow standard procedures for the Board, and your appeal process would follow those procedures. They are in the rules and regulations. But I do appreciate your efforts as well in this case. This is a difficult one for us. Thank you. Mr. Jackson, do you understand what we've ordered today? MR. JACKSON: I do. MR. LEHMANN: Okay. Thank you very much, and hopefully this will, in essence, take care of itself because you will obtain the Page 96 September 26, 2002 conditional use permit and life will go on as you intended. Just now you will be permitted to do it instead of doing it without a permit, in a sense. Okay? Thank you very much. Yes. Let's take another break, please for the court reporter. Her fingers are probably turning to jelly. Both reporters, I should say. We'll be back as 12:10. We'll recess until 12:10. (Whereupon, a break was taken and the meeting continued as follows:) MR. LEHMANN: Ms. Arnold, would you like to proceed with the next case, please? MS. ARNOLD: There's two more. MR. LEHMANN: From my understanding, this is case 2002- 013; is that correct? MS. ARNOLD: Yes. This is Case Number 2002-013 and they also have a request for a continuance which is on your agenda for -- as Item 5B2. MR. LEHMANN: chance? Okay. Is the Respondent here by any MS. ARNOLD: Yes Ms. Valdes is here. MR. LEHMANN: Ms. Valdes, would you like to request for a continuance? Ms. Rawson? MS. RAWSON: Yes, sir. MR. LEHMANN: Do we need to swear the witness in? They are not giving testimony in this particular aspect of the case. MS. RAWSON: We can -- I think we should. MR. LEHMANN: Okay. MS. RAWSON: We always swear all the attorneys in. MS. ARNOLD: Well, you have to. (Whereupon, the Witnesses were duly sworn and the meeting continued as follows:) Page 97 September 26, 2002 MR. LEHMAN: Please proceed. MS. GONZALEZ: This is my mother. English. MR. MS. She does not speak LEHMANN: Okay. ARNOLD: Can you state your name for the record, please. MS. GONZALEZ: Sure my name is Aixa Gonzalez. And the reason we are here is we want a motion for continuance. We with your order. LEHMANN: Uh-huh. GONZALEZ: We are in the process of-- we're waiting for complied MR. MS. the county for the approval. MR. LEHMANN: Okay. MS. GONZALEZ: Yes. LEHMANN: GONZALES: LEHMANN: GONZALES: LEHMANN: MR. MS. MR. MS. MR. So you have applied for a permit? And that was three weeks ago? Uh-huh. And it's still in the application process? Yes. Do you have any idea when it will be coming out? MS. GONZALEZ: MR. case. We No. They didn't tell us that. FLEGAL: We haven't issued any -- we never heard this haven't issued an order or anything. MR. LEHMANN: That's right. What they are asking us is we continue the case until we can hear the case. MR. FLEGAL: Okay. Well, but, I mean, one of their reasons and what she just said was, complied with the Board's order. The Board hasn't issued any orders. MS. GONZALEZ: Well, the Board gave us -- MR. TOREKY: It was -- it was just a -- this case has come the Board twice and it's been extended twice. Page 98 September 26, 2002 MR. re-design MR. MR. re-design MR. LEHMANN: Okay. MR. TOREKY: The first time that it came to the Board, Mr. Valdes came in and asked for a continuance for 60 days, due to a court date that he had with the Government. Since that time, it's -- after those 60 days had passed, Mr. Valdes was unable to attend, so Ms. Valdes and his daughter here attended and asked for an extension. They were going to apply for the permits themselves. Mr. Valdes was incarcerated at the time. MR. LEHMANN: Uh-huh. MR. TOREKY: Since then, on September 9th, they came in and they applied for a permit. It's still in the review status at this time. The -- the item that was rejected was on one of the drawings that they submitted, the hurricane speeds were incorrect, and as far as I know, that's the only thing that's holding this permit up from being issued. MR. LEHMANN: Okay. MR. TOREKY: Is that item, and in the next couple of weeks, we should know. I spoke with the engineer that did the drawing yesterday and the engineer said that he's working on the drawing and should be finished any day, if not today. LEHMANN: Is it a typographical error or does he need to the building? TOREKY: Excuse me? LEHMANN: Is it a typographical error or does he need to MR. TOREKY: He needs to re-do the specifications on the plan for what the hurricane speeds are. MR. LEHMANN: Okay. MR. TOREKY: They -- they did the drawing for 110 mile an hour wind zone and they are in a 132 mile an hour zone, I believe. Page 99 September 26, 2002 MR. problems MR. MR. LEHMANN: All right. Okay. Do you see any other with this permit going through? TOREKY: I -- personally, I don't. LEHMANN: Do you have any objections to this? MS. ARNOLD: Yes. We object, as the last one. This item has previously been continued. Again, for the record, we can hear the item if we think this is something that's going to go through and come into compliance with the Board's order, we can go through the case, find whether or not it's in violation and order the appropriate time. MR. LEHMANN: Okay. I'll open for discussion from the Board members. MR. FLEGAL: My only comment is like the last one. We give one outfit a break, I'm sorry, you -- you got to keep the same rule. We've given Manatee a break for-- because they're trying to get something done, and we want to give them all the time they need. This lady's been trying. She's obviously submitted something. The county knows it's been submitting. Evidently there's one minor problem. It doesn't sound like it's a big deal. I suggest we grant the continuance and, you know, give them another 30 days. Maybe it will be solved and gone away. MS. ARNOLD: With all due respect, we treat each case separately and make our recommendations -- MR. FLEGAL: I understand that. MS. ARNOLD: -- and make our recommendations separately. It's just the county's position that we do not -- we object to the continuances. MR. LEHMANN: So noted. MR. FLEGAL: Yeah. I'm just, you know, the county doesn't object to certain cases, but objects to the other cases. I have a problem with that. Page 100 September 26, 2002 MR. LEHMANN: Any other comments? MR. PONTE: I think this -- according to the investigator, is so close to resolution that it should be continued. MR. LEHMANN: Any other comments? I would entertain a motion to address the Respondent's request for a continuance. MR. FLEGAL: I make a motion we continue it until the next meeting. MS. SAUNDERS: MR. LEHMANN: from Ms. Saunders. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none, the motion carries unanimously. Ms. Gonzalez, do you understand? MS. GONZALEZ: Yes. MR. LEHMANN: And would you please communicate to Ms. Valdes that it is continued to the next hearing date. MS. GONZALEZ: Okay. MR. LEHMANN: Thank you. Next case, please? MR. FLEGAL: We're done. Oh, no, we got one more. MR. LEHMANN: One more. MS. ARNOLD: There is one more. That's CEB Case Number 2002-018, Board of County Commissioners versus Carl Puchhas. MS. HILTON: The alleged violation is of Section 2.7.6.1 and 2.7.6.5 of Ordinance Number 91-102, the Collier County Land Development Ordinance. Description of violation, construction of boat dock without permits; location where violation exists, 2205 Clipper Way, Florida; Folio No. 26733160000, name of owner in charge of location where violation exists, Carl Puchhas; date violation first observed, October 30, 2001. Second. We have a motion from Mr. Flegal, a second Page 101 September 26, 2002 Date owner in charge given Notice of Violation, October 30, 2001. Date which violation was to be corrected was December 3rd, and date of reinspection was June 20, 2002. And the results of the reinspection was the violation remains. And I skipped over a section. I'm sorry. I would like to ask at this time if the Respondent is present in the courtroom. So noted. Nobody is present. We have provided the Board and Respondent with a packet of information. We would like it entered as Exhibit A at this time. MR. FLEGAL: So moved. MR. LEHMANN: We have a motion. Do we have a second? MR. PONTE: I'll second. MR. LEHMANN: All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries unanimously. Please proceed. And if you would mark that as Composite Exhibit A for the county. (Whereupon, County's Exhibit A was entered into the record and the meeting continued as follows:) MS. HILTON: At this time, I would like to turn the case over to the Code Investigator, David Ripicky to present this case to the Board. MR. RIPICKY: For the record, I'm David Ripicky, code investigator. MR. LEHMANN: David, one second. Let's swear you in, please. (Whereupon, the investigator was duly sworn and the meeting continued as follows:) MR. RIPICKY: Dave Ripicky, Collier County Code Enforcement Investigator. On October 12th, 2001, we had an Page 102 September 26, 2002 anonymous complaint about an unpermitted dock at Mr. Puchhas's residence. Through investigation, through permitting and calls, we could not find a permit of such for the -- for the boat dock. We informed Mr. Puchhas through -- he wasn't home. Through our mailing, we sent him a Notice of Violation. We never had a response from Mr. Puchhas, but we did have a continuation of the proceedings, due to the court and county commission changing it, the boat dock ordinance for the neighborhood there, which was in January of 2002. On March 5th, 2002, I went to Mr. Puchhas's home to inform him of such new regulation and see if I could have the contact with him and verbally inform him of the violation. He wasn't home, but his daughter was. She told me she would leave a message for Mr. Puchhas to call me. I never had a response from him or his daughter. On March 11 th, we had a recheck and we still had no attempts of compliance. So I marked it for April 2nd and May 6th, but no response from the Respondent in the case. We did send a Notice of Hearing on January 28th. ago, we were here with Mr. Puchhas. He was present. continue the case for him since he had a -- a personal family hardship at that time, he would at that time, assured us he would be in compliance by this next hearing date of today. So far there is still no compliance of either attempting to apply for a permit for the boat dock or get an administrative variance from the planning department. MR. LEHMANN: Thank you. Any questions for the investigator? MR. PONTE: Yes. Just one. David, other than the lack of a permit, given the new regulations, what else is at fault here? Is the Two months We decided to Page 103 September 26, 2002 dock in the -- too far extended into the waterway, or-- in addition to just the permit or what? MR. RIPICKY: Without the measurements and the survey, I couldn't accurately answer that. My opinion, no, he had qualified for the administrative variance by looking at the dock. They don't appear to be too far out, but without an accurate measurement, I couldn't specifically say it was or wasn't. That's why we requested the administrative variance first. MR. PONTE: So easy to do. MR. RIPICKY: Yeah. MR. PONTE: Accurate. MR. LEHMANN: So in a sense we have a boat dock that is just constructed without permits and you've researched it and found that there are none on file? MR. RIPICKY: Yes, sir. MR. LEHMANN: Okay. Any other questions for Investigator Ripicky? None? Thank you, sir. MR. RIPICKY: Thank you. MR. LEHMANN: We'll close the hearing section and open it for discussion before the Board. Any discussion? Hearing none, I would entertain a motion to proceed with the finding of fact. MR. PONTE: I'll make a motion. The violation does exist in the case of Board of County Commissioners versus Carl Puchhas, Case Number 2002-018, and that's in violation of Sections 2.7.6.1 and 2.7.6.5 of Ordinance 91-02 of the Collier County Land Development Code, description of the violation is the construction of a boat dock without permits. MR. LEHMANN: We have a motion from Mr. Ponte. Do I hear a second? MR. FLEGAL: Second. Page 104 September 26, 2002 MR. LEHMANN: Second from Mr. Flegal. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries unanimously. I would entertain a motion for an order of the Board. MR. PONTE: I recommend that we follow the recommendation from staff. MR. LEHMANN: That motion would be that the CEB order that the Respondent to pay all operational costs incurred in the prosecution of this case and abate all violations within 30 days or a fine of $50 per day be imposed for each day the violation continues; is that correct? MR. PONTE: I couldn't have said it better. MR. LEHMANN: I wish you would have said it. Then I wouldn't have had to say it. MS. RAWSON: Do you know -- if I can make one little comment. Abating all violations, I know that's one of our favorite things to order, but it's sometimes too general. And I've been made aware that there is one case out there that said the Code Enforcement Board order was too general, and, you know, they had to do it over again. In this particular instance, for example, there is only two things he could do to abate the violations; is that right? He can get a permit or he can get a variance. MR. LEHMANN: Or he could remove it. MR. FLEGAL: Or he could remove it. MS. RAWSON: Or he could remove it. And so, you know, we don't want to always get too specific and tell them every single thing to do. Page 105 September 26, 2002 There has to be kind of a happy medium. In cases where you know there are some particular things that they have to do or they're not going to be in compliance. I am just suggesting, not necessarily in this case, but that you do that when you can, and not make them all too general because of that one case. MR. LEHMANN: Okay. Mr. Ponte, would you be interested in revising your motion to be a little bit more specific, as counsel has advised. MR. PONTE: I thought it was your motion, sir. MR. LEHMANN: No. I just kind of explained your motion. You want it to be my motion? MR. PONTE: Certainly. MR. LEHMANN: Okay. The -- I move -- well, actually we a motion and a second, so we have to kind of act on that; do we have not? MR. FLEGAL: We can clarify it, I think, without a problem. MR. LEHMANN: Can we clarify it? Let me clarify it. That the CEB order the Respondent to pay all operational costs incurred in the prosecution of this case -- MR. FLEGAL: Period. Period. Not and, period. MR. LEHMANN: Period. MR. FLEGAL: Yeah. MR. LEHMANN: That's correct. Second, abate all violations by one of three methods, either to obtain the required permits, to obtain a variance permitting the construction as is, or to remove the construction. Is that clear enough? Okay. MR. PONTE: When you do that, here's where we open up the whole Pandora's Box. Now, we've given him 30 days to remove the dock, so you have to ask the question, how long will it take him to remove the dock? Page 106 September 26, 2002 The reason that we had used the catch phrase, abate all violations, is that we didn't want to get into the position of telling them specifically what to do and how to solve their problem. MR. LEHMANN: Uh-huh. MR. PONTE: Now, if we do it the way you have just suggested, we've given him 30 days to take down the dock. So I have to ask the question, how long will it take him to take down the dock? What's realistic? How long does it take to move it? How big is the dock, and we open up all of that. MS. ARNOLD: How -- how is that any different from being general in saying 30 days? MR. PONTE: I think it's much better to say abate the violations. He can abate the violations, period. MR. LEHMANN: Well, you bring up a good point, and the point isn't necessarily as you have expressed it, but the 30-day period of time in how he achieves it. In other words, if we abate the violation by obtaining a permit, can he do that in 30 days? If he abates the violation by removing the dock, can he do that in 30 days, or the variance? Can he do that in 30 days? That's the important point of this thing is what if he decides to go get a permit, can't get the that and decides to go get a variance, can't get and then he has to remove the dock? MR. PONTE: Well, the investigator said it was simply a construction permit problem and that everything looked fine. It would be easy for him to get a permit. MR. LEHMANN: Okay. So I leave the order as it stands, and if I can finish it, within 30 days or a fine of $50 per day be imposed for each day the violation continues. Do I have a second? MR. PONTE: I'll second. Page 107 September 26, 2002 MR. LEHMANN: Thank you. Any discussion? Hearing no discussion, all those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Motion carries unanimously. That will close the public hearing section of today's meeting. I would like to move on to new business. MS. ARNOLD: Yes. The next item is Item Number 2002-002 - - 2002-009, request for Imposition of Fines on case Board of County Commissioners versus Shad Davis, Inc. This case was heard by the Board on May 23rd, 2002. At that time, the Board found the Respondent in violation and ordered that the repeat violation be abated by May 17th. They also ordered -- well, I'm sorry. The -- the violation was a repeat violation but the property was in compliance by May 17th, 2002. The Respondent was also advised that they would pay a $500 fine for the repeat violation, as well as the operational costs for the prosecution of the case. At this time, we are requesting that the Board impose a fine in the amount of $500 for the repeat occurrence and $941.75 for a total of $1,441.75. MR. LEHMANN: I would entertain a motion to so approve. MR. FLEGAL: So move. MR. LEHMANN: I have a motion from Mr. Flegal. MR. PONTE: Second. MR. LEHMANN: Second from Mr. Ponte. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? The motion carries unanimously. Page 108 September 26, 2002 MS. ARNOLD: The next item is Board of County Commissioners versus David and Zenaida Falato, Case Number 2002-012. This case was heard by the Board on June 27th, and it was a violation of exterior surface found to be unprotected, peeling and no paint, rotted lumber, et cetera on the property, and ordered that the Respondent come into compliance by July 27th, 2002, or fines of $150 per day would be imposed each day the violation was abated. They also ordered that the Respondent pay operational costs for the prosecution of the case. Staff is at this time requesting that the Board issue an imposition of fine for the amount of $3,750 for a period of July 28th through August 22nd at a rate of $150 per day, plus $1,314.75 for operational costs for a total of $5,064.74 -- 75 cents. MR. LEHMANN: I would entertain a motion to so impose fines. MS. SAUNDERS: So moved. MR. LEHMANN: Ms. Saunders has given us a motion. Any seconds? MR. FLEGAL: Second. MR. LEHMANN: Mr. Flegal is a second. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing no opposed, motion carries unanimously. MS. ARNOLD: The next item is Board of County Commissioners versus Kathleen Sadlacek, Case Number 2002-016. This was mitigation granting a requirement on -- for -- that wasn't kept in -- was not in conformance with the plan that was submitted. Page 109 September 26, 2002 The case was heard on June 27th, 2002, which the Board found in violation and ordered the Respondent to correct the violations within 30 days, July 27th. The Respondent did not comply with the Board's order and we are indicating that a $50 per day fine should be imposed. Also, the Board ordered that an operational cost should be assessed for the non-compliance. I'm sorry. MR. LEHMANN: Ms. Arnold, I'm confused. MS. ARNOLD: Yes. The Respondent was ordered that if they did not comply by July 27th, that a fine of $50 per day would be imposed. The Respondent did come into compliance by the 25th of July and now staff has imposed -- requesting that the Board impose fines for the operational costs, which is a total of $1,455.70. MR. LEHMANN: Okay. So the Respondent has come into compliance -- MS. ARNOLD: Yes. MR. LEHMANN: By the deadline date and you are imposing operational costs, only? MS. ARNOLD: Yes. MR. LEHMANN: Okay. I would entertain a motion to do so. MR. FLEGAL: So moved. MR. LEHMANN: Mr. Flegal's motion. MR. PONTE: Second. MR. LEHMANN: Mr. Ponte second. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? None. Motions carries unanimously. Proceed to 5B. MS. ARNOLD: Old business? Page 110 September 26, 2002 MR. LEHMANN: Yes. I'm sorry, Item Number Six. MS. ARNOLD: Six-- MR. LEHMANN: Old business. MS. ARNOLD: :- A. We've got two items and these are just informational items. First, was Board of County Commissioners versus Kathleen Sadlacek, which is the case that we previously imposed fines on. It is in compliance and we have filed affidavits of compliance on that. The other case is Board of County Commissioners versus David and Zenaida Falato, and again you've imposed fines today, and we have filed an affidavit of compliance on that case. MR. LEHMANN: So noted. Let's move on to comments and new hearing dates for November and December. MS. ARNOLD: Yes. MR. LEHMANN: I assume you have two dates for both months and you'd like to see what works, right? MS. ARNOLD: Yes. They are noted on the agenda for November. We tentatively scheduled the -- reserved this room for November 18th and the 22nd, depending on what works for the Board. And then in December, we tentatively scheduled the room for the 16th and the 20th. I believe they are Monday and Friday. MR. LEHMANN: Mr. Flegal has already aired a preference to go to the 18th. MR. FLEGAL: I think that's just a further date away from Thanksgiving in case people want to leave town on Friday. Let's get it done the beginning of the week, if everybody thinks that's cool. MS. SAUNDERS: I will be out of town either of those dates, so don't -- don't pay attention. MR. LEHMANN: Any other comments from the Board? Do you have a preference on the dates? Page 111 September 26, 2002 MR. FLEGAL: 18th for November. How about the December date? MR. PONTE: Either date is fine. MS. SAUNDERS: I would prefer December 16th. MR. FLEGAL: Okay. I don't have a problem with that one either. MR. LEHMANN: Okay. I guess the consensus would be November 18th and December 16th for the next hearing dates. And you say the room is available, so that's confirmed? MS. ARNOLD: Yes. MR. LEHMANN: Okay. All righty. Having no other business, I would entertain a motion to adjourn, bearing in mind that our next meeting date will be October 24th, same place, same time. MR. FLEGAL: So moved. MR. LEHMANN: I hear a motion to adjourn. Do I hear a second? MR. PONTE: Second. MS. SAUNDERS: Second. MR. LEHMANN: I hear a couple of seconds. All those in favor, signify by saying aye. THE BOARD: Aye. MR. LEHMANN: Any opposed? Hearing none, we are adjourned. Whereupon, the meeting was adjourned by order of the Chair- Time 12:30 P.M. CODE ENFORCEMENT BOARD Page 112 September 26, 2002 PETER LEHMANN, CHAIRMAN STATE OF FLORIDA) COUNTY OF COLLIER) I, Kimberly J. Lowe, Professional Reporter, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on page one hereof; that the foregoing computer-assisted transcription, is a tree record of my stenographic notes taken at said proceeding. IN WITNESS WHEREOF, I hereunto set my hand this 10th day of October, 2002. Kimberly J. Lowe, Professional Reporter Page 113 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME--FiRST NAME--MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE MAIL~C~ ADDRESS - ~ ICITY . . DATE ON WHICH VOTE OCCURRED THE BOARD, COUNCIL. COMMISSION, AUTHORITY OR COMMITTEE ON WHICH I SERVE IS A UNiT OF: n CITY ~)oUNTY [] OTHER LOCAL AGENCY NAME OF POLITICAL SUBDIVISION: MY POSITION IS: r~ ELECTIVE ._.~___ APPOINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It appfies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwis'e may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: · You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 8B - REV. 1/98 PAGE 1 APPOINTED OFFICERS (continued) · A copy of the form must be provided immediately to the other members of the agency. · The form must be read publicly at the next meeting after the form is flied. IF YOU MAKE NO A'FI'EMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: · You must disclose orally the nature of your conflict in the measure before participating. · You must complete the form and file it within 15 days after the vote occurs with the perscn responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicty at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, inured to the special gain or loss of whom I am retained; or inured to the special gain or loss of is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: Date Filed by which NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT; REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 8B - REV. 1/98 PAGE 2