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CEB Minutes 11/29/2004 R November 29, 2004 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida November 29, 2004 LET IT BE REMEMBERED, that the Code Enforcement Board in and for the County of Collier, having conducted business herein, met on this date at 9:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Clifford Flegal Sheri Barnett ( absent) Raymond Bowie Albert Doria, Jr. (absent) Roberta Dusek Nicolas Hemes Gerald Lefebvre George Ponte Richard Kraenbring ALSO PRESENT: Jean Rawson, Attorney for the Board Michelle Arnold, Code Enforcement Director Jennifer Belpedio, Assistant County Attorney Leonardo Bonanno, Code Enforcement Coordinator Page 1 CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AGENDA Date: November 29, 2004 at 9:30 a.m. Location: 3301 E. Tamiami Tr., Naples, Florida, Col1ier 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. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES - October 28, 2004 Regular Meeting 4. PUBLIC HEARINGS A. HEARINGS I. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-042 1120 ROSEMARY LANE, NAPLES, FL BRAD & PHYLLIS ESTES RITA CRISP VIOLATIONS: ORD NO 91-102, AS AMENDED, SECTION 2.7.6.1 ORD NO 2002-01 FLORIDA BUILDING CODE, SECTION 106.1.2 UNPERMITTED SHED CONVERTED INTO LIVING SPACE 2. CASE NO: CASE ADDR: REG. AGENT: INSPECTOR: VIOLA TIONS: 3. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-069 5401 & 5405 TAYLOR ROAD, NAPLES, FL LAURA OLSZEWSKI TOM CAMPBELL ORD NO 91-102, AS AMENDED, SEC 3.3.11 ORD NO 2002-01 SEC 104.1.2.7 COLLIER COUNTY CODE OF LAWS AND ORDINANCES SEC 90-41 (A)(I) AND (2) ILLEGAL ADDITION OF A DRIANAGE CHANNEL INTO A CANAL BANK 2004-046 5025 BA YSHORE DRIVE, NAPLES, FL WILLIAM PETRUZZI EVERLIDO YBACETA VIOLATIONS: ORD NO 91-102, AS AMENDED, SECS 1.5.6,2.1.11,2.2.9 AND 2.7.6 ORD NO 89-06 AS AMENDED, SEC 5 ORD NO 2002-01 SECTIONS 22-263 AND 101.4.9.2 ORD NO 99-51 SECS 6,7,8 UNPERMITTED, UNMAINTAINED RESIDENTIAL STRUCTURE(S) AND ADDITIONS, UNPERMITTED SEWER TAP INSTALLATION AND LITTER 4. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-053 13500 LAKE PARK BLVD, NAPLES FL JUAN & ARMANDINA FLORES JOHN SANT AFEMIA VIOLATIONS: ORD NO 2002-01 SECS 103.11.1 MOBILE HOME ON PROPERTY DEEMED HAZARDOUS DUE TO STATE OF DISREP AIR 5. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-060 4260 68TH AVENUE NE, NAPLES, FL JERRY & JANICE MILLER JEFF LETOURNEAU VIOLATIONS: ORD NO 91-102 SECS 3.5.3. AND 3.5.7.1.2 EXCA V A TION & REMOVAL OF FILL WITHOUT OBTAINING REQUIRED PERMITS. EXCAVATION ALSO VIOLATES SETBACK REQUIREMENTS 6. CASE NO: CASE ADDR: OWNER: INSPECTOR: 2004-061 4251 66TH AVENUE NE, NAPLES, FL GERALD & LOUISE MILLER JEFF LETOURNEAU VIOLATIONS: ORD NO 91-102 SECS 3.5.3. AND 3.5.7.1.2 EXCAVATION & REMOVAL OF FILL WITHOUT OBTAINING REQUIRED PERMITS. EXCAVATION ALSO VIOLATES SETBACK REQUIREMENTS 5. NEW BUSINESS A. Request for Imposition of Fines/Liens 1. BCC vs. Deborah Katchur 2. BCC vs. Del Ackerman CEB NO. 2004-015 CEB NO. 2004-036 B. Request for Foreclosure Initiation 6. OLD BUSINESS 1. BCC VS. Carter Fence Company, Inc. CEB NO. 2003-021 A. Approval of Changes to CEB Rules and Regulations as Motioned by Chairman Flegal 1. Requirement of all Respondents to provide a Table of Contents with all defense information provided. All document pages must also be numbered. 7. REPORTS 8. COMMENTS 9. NEXT MEETING DATE December 21, 2004 10. ADJOURN November 29, 2004 CHAIRMAN FLEGAL: Call the Code Enforcement Board to order, please. Please make 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. N either Collier County nor the Code Enforcement Board shall be responsible for providing this record. Roll call, please. MR. BONANNO: Chairman Flegal. CHAIRMAN FLEGAL: Present. MR. BONANNO: Ms. Dusek. MS. DUSEK: Here. MR. BONANNO: Mr. Ponte. MR. PONTE: Here. MR. BONANNO: Mr. Lefebvre. MR. LEFEBVRE: Here. MR. BONANNO: Mr. Doria. For the record, Mr. Doria is not present today and has not phoned in. Mr. Bowie. MR. BOWIE: Here. MR. BONANNO: Mr. Hemes. MR. HEMES: Present. MR. BONANNO: Our newest alternate, Mr. Kraenbring. MR. KRAENBRING: Here. MR. BONANNO: And for the record, Sheri Barnett has called in, she will not be appearing today. CHAIRMAN FLEGAL: We welcome our new member. MR. KRAENBRING: Thank you. CHAIRMAN FLEGAL: Approval of our agenda. Are there any changes, corrections, additions? Page 2 November 29, 2004 MR. BOWIE: Could I just make a suggestion. I don't know if the other members of the board had this problem, but I found it quite difficult to read and comprehend the materials since they were printed front and back. Usually they're printed single-sided. And in addition, we seem to have had duplicative photographs, black and white and color. I don't know if it was intended to give us a different perspective or not, but I think the color is just fine. I'd like to suggest that we go back to, I believe the custom has been printing the agenda materials, the presentations, the exhibits, all in a single-sided format, rather than front and back. It's just a lot easier to follow, a lot easier to comprehend, especially when you're dealing with forms, where sometimes the forms just simply get jumbled up. I don't know if the rest of the board members had that particular experience, but I know I did. MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. There aren't any changes to the agenda. It will go as printed. And with respect to the double-sided copies, we're just simply trying to save on costs. CHAIRMAN FLEGAL: I understand. I'm partially in agreement with Ray, it does get a little confusing, especially when there's forms, because a machine takes them and just does it and sometimes it's very hard to follow, so if we're going to do it that way, I think maybe when you print a copy, then somebody should review it to see if it actually makes sense for someone who's going to read through it. If it does, terrific, but if it doesn't, then we need to go back to our single-sided. Okay, there are no changes to the agenda. I would entertain a motion to approve it as submitted. MR. BOWIE: So moved. MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second to Page 3 November 29, 2004 approve the agenda as submitted. Any further comment? Hearing none, all those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Approval of our minutes from October 28th. They were sent to all of us electronically. Are there any corrections? MS. DUSEK: I make a motion that we accept the minutes of the last meeting. MR. PONTE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the minutes as submitted to us. Any further discussion? Hearing none, all those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Those opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Before we open our public hearings, one, two, three, four, five, there are five regular members present, both our alternates will participate in the voting process on all cases. Our public hearings, first case, Case No. 2004-042, BCC versus Brad and Phyllis Estes. I hope I said that right. Page 4 November 29, 2004 MS. ARNOLD: Yes. MR. BONANNO: The county has previously submitted two packets of information designated exhibits A and B to the board. We ask that this be entered in evidence at this time. MS. DUSEK: I make a motion that we accept the county's Exhibit A. CHAIRMAN FLEGAL: And B. MR. HEMES: I'll second. CHAIRMAN FLEGAL: There's a B, too. MS. DUSEK: I'm sorry. I also -- are we going to do this separately or together? CHAIRMAN FLEGAL: He asked for us to accept them so we can accept A and B together. MS. DUSEK: All right. I'll add B to that. MR. HEMES: I'll second that amended motion. CHAIRMAN FLEGAL: Okay, we have a motion and second to accept the county's Exhibit A and B. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. MR. BONANNO: For your information, the statement of violation that I'm about to read from has been modified, so it might not match exactly what -- the item you were given previously. But this is CEB No. 2004-042, Board of County Commissioners Page 5 November 29, 2004 versus Brad and Phyllis Estes. The violation is that of Ordinance 91-102, Sections 2.7.6.1,100 -- excuse me, 2.6.7.1, 2.6.14 and Sections 106.1.2 of Ordinance 2002-01 of the Florida Building Code. The violation is described as an unpermitted shed converted into a habitable space without first obtaining the authorization of a Collier County building permit and having all of its required inspections and receiving a certificate of completion. Said habitable structure or guesthouse is located in a single-family residential district and is being rented in violation of the guesthouse provisions. The violation is located at 1120 Rosemary Lane, Florida, more particularly described as folio 79070800001. The name and address of the persons in charge of the location where the violation exists are Brad and Phyllis Estes, 3384 Balboa Circle West, Naples, Florida, 34105. The violation was first observed on February 24th, 2004. A notice of violation was issued to the owner on February 29th, 2004 by personal service. The violation was to be corrected on -- by or on April 16th, 2004. A reinspection occurred on July 12th, 2004, and as of that date, the violation still remains. I will now turn the case over to investigating officer, Mr. Olney, John Olney. MS. DUSEK: Before you do that, would you repeat the ordinances that are in violation, because I know it's not corresponding with what I have. MR. BONANNO: Sure. MS. DUSEK: And do it slowly. MR. BONANNO: Your copy should say violation of Ordinance 91-102, Section 2.7.6.1, and 2.6.14. And that's of Ordinance 91-102. In addition to Section 106.1.2 of Ordinance 2002-01 of the Page 6 November 29, 2004 Florida Building Code. MS. DUSEK: Thank you. MR. BONANNO: John Olney. CHAIRMAN FLEGAL: One moment, please. MR. PIRES: Mr. Chairman, I apologize, but -- Tony Pires, for the record, representing Brad and Phyllis Estes in this matter. I apologize for jumping ahead procedurally, but if I could ask your indulgence and that of the board, only because as Mr. Bonanno referenced -- and correct me if I mispronounced your name -- this is an amendment to a statement of violation that I was just handed two minutes ago with these interlineations. We had -- this hearing was originally scheduled for, I believe, the September board meeting and then it was continued. We had two meetings with county staff since that time, last one most recently last Wednesday. They had plenty of opportunity to provide us with a new affidavit, because the affidavit is dated August 5th, 2004 from Rita Crisp, and the proposed amended changes weren't even discussed at that time as being part of this charging document. And I've been here since 8:30 this morning, no one has advised me that this would be part of the charging document. We believe it's a substantial revision to the change of the statement of violation and request for hearing. It's correct that the notice of violations, that two of them were issued in this case. But the statement of violation and request for hearing has consistently, both for the September meeting and for this meeting, been sent to us. Our defense packet, all of our preparation has been focused on the description of violation that is in your packet, not in the one I was just handed to, not in the one Mr. Bonanno was just reading from modifying it. So we would severely and substantially object and ask that this case not be heard today, because we may have additional materials to put in the defense packet, because we disagree with the assertions Page 7 '~""--"'- November 29, 2004 referenced in this particular modified statement of violation. Due process is being severely compromised and jeopardized in this particular matter. They've had plenty of opportunity -- as I said, we've met with them twice, had numerous discussions, and this is the first time we see this document. MS. ARNOLD: Mr. Chairman, we did meet with Mr. Pires and his clients several times, and we did tell Mr. Pires that those items were going to be considered -- that was the whole purpose of continuing it at the prior hearing. Unfortunately, the document that -- the notice of violation that was omitted in the packet, during the first meeting was included in this packet, but the affidavit, or the notice of hearing -- or the affidavit of -- or statement of violation was not modified to also include that section of the ordinance that was being violated. We've had discussions with Mr. Pires to indicate that those were going to be considerations during this hearing. CHAIRMAN FLEGAL: The notice of violation that has this item, which is, I assume, 2.6.14, is the one in question? MS. ARNOLD: That's correct. CHAIRMAN FLEGAL: When that was written, was that -- a copy of that given to the respondents, was it left on their property? MS. ARNOLD: The respondent received it and signed for it. It was personally served. CHAIRMAN FLEGAL: Okay. MS. DUSEK: It was personally served with the 2.6.14? MS. ARNOLD: Correct. CHAIRMAN FLEGAL: Okay. Jean? MS. RAWSON: Was the description of violation changed in the one that was served to the Estes. MS. ARNOLD: The description of violation? MS. RAWSON: Right. Leo just added about the guesthouse being rented in a single-family -- Page 8 November 29, 2004 MS. ARNOLD: The notice of violation says guesthouse in a single-family residential district being leased or rented. That's exactly what the notice of violation says. MS. RAWSON: Okay. On the statement of violation that was served to them, that's what it says, too? MS. ARNOLD: The statement of violation that was served to them omitted that -- that language. But the notice of violation had that language. CHAIRMAN FLEGAL: The violation, the statement says "converted into a habitable space." It doesn't say it's being rented, specifically. MR. BOWIE: In the county exhibit page No.4, we do have a copy of the notice of violation -- CHAIRMAN FLEGAL: That's what I asked about. MR. BOWIE: -- accepted by the respondent March 30th, and that does reference it as amended to 2.6.14. MR. PIRES: Mr. Chairman, members of the board, I guess what I'm saying is that the affidavit of August 5th, describes the violation. The violation description in there does not include a description of violation of2.6.14 and all the materials that are added today. The final affidavit statement, at the bottom, said "Based upon the foregoing, the undersigned code enforcement official hereby certifies the above-described violation," not 2.6.14 but the above-described, which excludes 2.6.14 continues to exist. So it's a substantial change to the statement of violation and request for hearing that was served upon us, and we believe it's inappropriate to continue in this course with this amended statement of violation. We believe it violates the statute, violates due process, and it's inappropriate. And we request that it not be heard, and continued, if they wish to proceed with this or have it not considered at all today. MS. ARNOLD: I would just ask whether or not Mr. Pires can Page 9 -~_...- November 29, 2004 acknowledge that we did discuss this very issue in meetings that we had. And whether or not he could acknowledge that that was the reason why we continued it previously, to add this information to the packet. MR. PIRES : No, last meeting there was discussion concerning some zoning issues, not the 2.6.14. The question was on the date of the hearing. An affidavit of Cheryl Soter was handed to me the date of the hearing. I had never seen that before from staff. That was the discussion item why it was continued. When we met last Wednesday, it was the discussion of the description of the violation is what is in your packet. That's what we responded to. That's what the charging document is. Now it's a substantially changed, substantially added to charging document. That was discussed and so, listen, my defense packet, my presentation is focussed on the description in the statement of violation that's in your packet, not what was added and handed to me today. That's why my clients' rights are being jeopardized by proceeding with that particular addition. Thank you. CHAIRMAN FLEGAL: Jean, any advice? MS. RAWSON: The notice, obviously, gives the notice. However, I do agree with Mr. Pires that the statement is usually the charging document. CHAIRMAN FLEGAL: Okay. Since just being presented to us, this new item is being -- I'll use the word added. Maybe it's not proper, but added to the statement of violation, can we tell the county that for that particular item they're going to have to present that particular item at the next session? MS. RAWSON: Yes, certainly. CHAIRMAN FLEGAL: Leave it out and we'll do the case as originally submitted to the respondent and their attorney. MS. RAWSON: You certainly have that alternative available to Page 10 November 29, 2004 you. CHAIRMAN FLEGAL: Would that work for you, Mr. Pires, if we do it that way? MR. PIRES: Yes, sir, proceeding on the one stated violation that was in your packet, yes, sir. CHAIRMAN FLEGAL: Okay. Does county understand? MS. ARNOLD: Yes. I do have a question. Are we then able to explain the evidence that was submitted in the packet? CHAIRMAN FLEGAL: You can explain all the evidence, but any request for a decision from us will not be against the violation of 2.6.14. You'll have to bring that to us at our next meeting. I mean, if you want to present -- as you present your evidence for your other violation, if some of that overlaps, fine, but you can't ask us to make a decision are they guilty or not -- MS. ARNOLD: Of that violation, absolutely. CHAIRMAN FLEGAL: -- because of that specific paragraph in the ordinance, okay? Can we do it that way? MS. ARNOLD: Yes. MR. PIRES: My only question is if they present evidence that overlaps on this other one, we have not presented a defense packet. I think there should be a -- CHAIRMAN FLEGAL: Well, part of the -- part of their statement to you is you have an unpermitted shed converted into habitable space. So they can't talk to us about that you're renting it. But that you converted something for somebody to live in can be presented to us, because they told you that. They just can't say you actually have a contract or whatever with somebody to live in it. MR. PIRES: Understand. CHAIRMAN FLEGAL: But that it's available to live in, they can present to us. Okay? MR. PIRES: Understood. CHAIRMAN FLEGAL: All right. Page 11 November 29, 2004 MR. BOWIE: Or perhaps rather than bifurcate it in that manner, we continue the entire case till next month and it's all presented at one time. CHAIRMAN FLEGAL: I think since everybody's here I just -- and it's on the agenda, let's go with it. They're here, Mr. Pires is here, he's ready, he's got his evidence. Let's do it. MS. DUSEK: Do we have to vote on it? CHAIRMAN FLEGAL: Well, they're the ones trying to add it. I would recommend that the -- yes, sir. MR. PIRES: I'm sorry, Mr. Chair. If I may, as opposed to having two different hearings on two different dates, Mr. Bowie, I think that's his thinking, as opposed to bifurcating them, it would be probably more efficient to have it all at one time, that being the next meeting, I think, if you're going to charge both. We'd be here, we'd be possibly covering the same area, possibly, the second time too. CHAIRMAN FLEGAL: The county wanted it on here, and if they want to withdraw it, they can. If they don't, then we're going to hear it. So it's not for us to decide. MS. ARNOLD: The county would rather hear the items identified on the charging document today. CHAIRMAN FLEGAL: Okay. From the board's standpoint, what we need to do, since the county has presented this item, if you'd like to withdraw that particular item, you can do it, and then -- Jean, then the board wouldn't need to vote to have it withdrawn, correct? MS. RAWSON: Correct. CHAIRMAN FLEGAL: If the county just withdraws that item. MS. ARNOLD: We'll do that. County withdraws 2.6.14. CHAIRMAN FLEGAL: Okay. Thank you. MR. PIRES: Thank you very much, Mr. -- I apologize -- CHAIRMAN FLEGAL: Not a problem. MR. PIRES: -- I appreciate you letting me jump up. Thank you. CHAIRMAN FLEGAL: Okay. We'll proceed now. Page 12 --,._-- ... "-~-_.._---..'"'.,~-_.._-..._....,. ......- . November 29,'2004 (Speaker duly sworn.) MR. OLNEY: Morning, my name is John Olney, Collier County code investigator. Background information. At the time that this began, I was covering the part of the county that this violation involves. It was later turned over to another investigator. On February 24th, I responded to a minimum housing complaint at 1120 Rosemary Lane. I obtained an entry consent form from the occupant and examined the residence and found that the toilet was loose, it rocked somewhat. And there were boards in front of the toilet that did not meet -- were not flush together. It so happens that Mr. and Mrs. Estes were present that day, and I spoke to them about the problems that I observed, and they expressed willingness to immediately take care of the problems and get that resolved. The structure that we were looking at was a small building behind the principal residence located at 1120 Rosemary Lane, so there actually are two buildings there. I was looking at the small structure behind it. I told Mr. Estes that prior to coming there, I had checked with the property appraiser's office and looked at the property card and that it did show the structure, but it had no information concerning any permits on it, and that we might have a problem with this, but that I had not researched it very far at this point. We left. I think later that day or the next day, Mr. Estes came by the office and we again spoke. I think he had gone to the records section at community development and tried to locate the building permit for this structure, but he said since he didn't have a number, that he could not locate it at that time. We discussed that we were both going to research this further. I think Mr. Estes was -- well, obviously upset that it would not be fair Page 13 November 29, 2004 for me to tell him to tear down this structure, just because I couldn't find a permit, when in fact one may have existed. But it was kind of a moot point at that time because I had not researched it further. As we left that day, Mr. Estes was going to research it further and I was going to research it further and try to determine whether or not this structure was actually permitted. I never did anything further, because at that point Rita Crisp was assigned this territory and this matter was turned over to her, and I'll turn the microphone over to her at this point. CHAIRMAN FLEGAL: Before you leave, anybody have any questions for this gentleman? No. Mr. Pires. MR. PIRES: Thank you, Mr. Chairman. Mr. Olney, good morning, how are you? MR. OLNEY: Fine, sir. MR. PIRES: Mr. Olney, I believe you prepared a report indicating your visits to the property on Rosemary Lane? MR. OLNEY: Yes, sir. MR. PIRES: In part of that report, did you not reflect that the Estes repaired and remedied the problems that you observed from the perspective of the loose toilet and the other items? MR. OLNEY: I know that for a fact. I did not have the case at that time. But through Ms. Crisp, I knew that that had taken place. I didn't ever observe it myself. MR. PIRES: But to your knowledge, all the issues that you raised were remedied. MR. OLNEY: Yes, sir. MR. PIRES: And isn't it also not correct that you wrote in your report, that quote, checked with records section and no permits could be located, because we don't have a permit number. And then additionally, didn't you also write, "Since I cannot prove the structure is not permitted, it would not seem fair to make the owner tear it Page 14 November 29, 2004 down. " MR. OLNEY: That was based on my conversation with Mr. Estes. I had not gone to the records section, he had gone to the records section, and he told me that he had done that. And that was my interpretation of our discussion, that it wouldn't be fair for me to tell him to tear it down without researching having a permit. MR. PIRES: Mr. Olney, isn't it a fact that before it was put on the computer format in the report that you hand wrote your actual observations and your inquiries which reflect that you made a direct quote, it wasn't Mr. Estes', quote, Since I cannot prove this structure is not permitted -- CHAIRMAN FLEGAL: Let me interrupt a second. Tony, you need to tell us, what document are you reading from? MR. PIRES: I'm reading from, I believe it's the investigative report in this particular matter. CHAIRMAN FLEGAL: Is this something the county has submitted to us? MR. PIRES: Yes, sir. I believe I also submitted it as part of the CHAIRMAN FLEGAL: Well, your documents haven't been submitted to us yet because it's not your time to present evidence. So that's why I'm trying to figure out, what are you talking from? If you're talking from one of your pieces of paper, you can't do that until you submit your exhibits to us. Your exhibits haven't been submitted yet as evidence. MR. PIRES: Okay. I had the defense packet that was submitted to the -- if we could then move that entire defense packet -- CHAIRMAN FLEGAL: Well, yeah -- we normally let you do that when you present your side of the case. So-- MR. PIRES: It's not in the county materials, it's in the materials CHAIRMAN FLEGAL: Then what I suggest is when you Page 15 November 29, 2004 present your side of the case and submit your exhibits, you're more than welcome to recall the gentleman and ask him these questions. MR. PIRES: I shall do that. CHAIRMAN FLEGAL: All right, sir. MR. PIRES: Thank you very kindly, Mr. Chairman. Nothing further of Mr. Olney at this time, subject to the right to call him as a witness. CHAIRMAN FLEGAL: Thank you. (Speaker duly sworn.) MS. CRISP: For the record, my name is Rita Crisp, I'm an investigator for Collier County code enforcement. Good morning, ladies and gentlemen. As Mr. Olney stated to you, the case was turned over to me on March 29th of 2004. I met with the rental tenant and obtained an entry consent form to verify the violations myself. After researching the property, the only permits that were issued were 75-00045 for an addition for the family room issued in 1975; Permit No. 74-00069 for a new roof for the main structure issued in 1974; Permit No. 74-02 -- excuse me, -01214 for an electrical change that was issued in 1974; Permit No. 87-9000, an aluminum carport issued in 1987; Permit No. 91-R-435, for a replacement of septic tank and drain field issued in 1971; Permit No. 95-0003702, which -- for the reroof of the main structure, issued in 1995. On March 30th of 2004, I met with the Estes, along with supervisor Michelle Crowley, to go over the violations that exist at the property. I issued an NOV for no permits for said structure as a habitable space. At that time, Mr. and Mrs. Estes was very concerned about this, because they did mention to me that they purchased this property with the full intent of leasing these properties out, both the main structure and the secondary structure as a habitable space. Page 16 November 29, 2004 During that meeting -- I may have to adjust this, so -- just in case -- with your ruling about what wasn't going to be included. During that meeting the Estes did address said structure as a guesthouse, and at no time did they change any other name for that said structure. In 1972, it was observed by the property appraisers. It was added to the tax roll in 1973 as a storage. Today the property appraisers assessed that structure as an average garage. On April the 15th of 2004, a request for an extension of time was made by Mr. Estes with the help of Vince Cautero. Mr. Cautero was trying to help the Estes by requesting a meeting with planning. Three different times were given and dates were given so that the Estes could work it into their schedule. Mr. Estes did not choose to follow through with these meetings. On May 26th of 2004, a CEB warning letter was sent. Mr. Estes made contact with me asking for an additional extension. Mr. Estes continued to ask and request more time to come into compliance; however, there was no indication of forward momentum made towards compliance. The research showed zoning at the time shed! guesthouse was observed was MF-1 from October the 8th of 1968 to October the 8th of 1974. I continued my research to show if the structure in question would have been able to obtain a legal building permit as a habitable structure/guesthouse/second residence, anything that could be used as a habitable space. I researched the ordinance and the zoning regulation and zoning ordinances, which is what it was called at that time, instead of the land development code, all the way back to 1968. I found the setbacks for a habitable structure/guesthouse/secondary unit to be the square footage to be 500, and it varied, to 750 square feet. The said structure that we're speaking of today has only 200 square feet. I also found ordinances pertaining to rear setbacks for a Page 1 7 November 29,2004 habitable structure/guesthouse/secondary residence. The setbacks varied from 20 feet to 25 feet. The said structure is only ten-feet setbacks for the rear. Myself, along with the director, Michelle Arnold, supervisor Patti Petrulli have met with Mr. and Mrs. Estes and their attorney, Tony Pires, on two different occasions. And the last meeting, as he spoke of on 11-24, which was last Wednesday, also included Cheryl Soter from the planning department. We were trying to explain to the Estes and their attorneys and show them that the structure would not have been able to receive a legal permit as a habitable structure. Today Cheryl Soter from the planning department is also here to answer any questions that you may have dealing with those old ordinances. In conclusion, research shows that no permit would have been able to be obtained for said structure as a habitable space/ guesthouse/ secondary residence. The structure and the dwelling does not comply with today's nor prior ordinances. The square footage of the structure in question is 200 square feet, and as I stated, the requirements at that time vary from 500 to 750 square feet. In addition, the rear setbacks of the said structure in question is only ten feet, which does not require the minimum setbacks for today or previous ordinances. I thank you very much for giving us your time today. And does anyone have any questions? CHAIRMAN FLEGAL: Questions from any board members? MS. DUSEK: Yes. Since it is -- well, let's say it's a shed. And it's set back ten feet. Would that have been in compliance in the Seventies when it was built? Were they allowed to put a shed or storage building ten feet away from the property line at that time? MS. CRISP: I'm only going to be able to answer that question with today's ordinances. It would meet setbacks of ten feet and seven Page 18 November 29, 2004 and a half feet side setbacks. But I cannot answer that question truthfully or knowingly about ordinances for the building code that goes all the way back to 1968. I believe, it's our department's main concern, is it a habitable space, not really as much as a storage unit, as for the permit that would have needed to be maintained for it to be used as a habitable space. MS. DUSEK: So can you say that if it were a habitable space at that time, that the 10- foot setback was not right? MS. CRISP: Yes, ma'am. CHAIRMAN FLEGAL: And as a habitable space at the same time, it doesn't meet the square footage requirement, correct? MS. CRISP: Yes, sir. CHAIRMAN FLEGAL: Any other questions from board members? MS. DUSEK: One more question. The electrical permit that you spoke of, was that for the main house? MS. CRISP: Actually, the information, that is what they refer to as an express permit, so it really doesn't give any other information on the permit itself. So it could have been for a light in the shed/guesthouse, or it could have been a light in the house. It really doesn't -- the permit paperwork does not clarify where that may have been placed. CHAIRMAN FLEGAL: Okay. And the space as it exists today has more than electrical in it, correct? MS. CRISP: Yes, sir. CHAIRMAN FLEGAL: Any other questions from the board? Mr. Pires. MR. PIRES: Thank you, Mr. Chairman. Good morning, Rita. MS. CRISP: Good morning, Tony. MR. PIRES: Rita, if I could, with regards to this particular Page 19 November 29, 2004 matter, you spent quite a bit of time researching the various zoning ordinances applicable to this property? MS. CRISP: Yes, sir. MR. PIRES: Is it not fair to say that you had a very difficult time, due to the disarray of the county records? MS. CRISP: No, sir, I wouldn't say that. Actually, there's a number of different places that you can locate old ordinances within the county. I actually in the past have dealt with these years previously on other cases, and I have taken it upon my own to make copies of all of those old ordinances, so I actually have them ready at my hands. MR. PIRES: Okay. Now, I believe your testimony today is that with regards to the zoning that was in place, I believe your testimony was that it was MF-l from October, 1968 through October, 1974? MS. CRISP: To be more direct, MF-l, yes, sir. MR. PIRES: For that period of time. Did you recall ever providing a report back in April 19th of 2004 where you said quote, Research zoning of property. Property has been zoned RSF -- CHAIRMAN FLEGAL: Mr. Pires, again, is this a report that you've submitted to us or is this in your exhibit? MR. PIRES: It's part of my ability to impeach her, though, Mr. Chairman. CHAIRMAN FLEGAL: Yeah, but you're reading from something that hasn't been submitted as any evidence. If you have a question, then you can ask her a question, but you can't read from something you say she wrote, because that's not evidence. MR. PIRES: Okay, I'll ask -- if I can rephrase the question. Didn't you, in April of 2004, determine that the zoning was not MF-l but instead was RSF-4 from 1970 onward? Wasn't that your statement? Page 20 November 29,2004 MS. CRISP: The preliminary research showed that it was a zoning of that, but it also, I further did research to verify that, and by verifying that, I found it was MF -1. MR. PIRES: So in other words, your initial assertion as to the zoning category in 1970 was incorrect; is that true? MS. CRISP: I wouldn't go that far. I was just showing it, all the different areas that I did the research to show that any possibility for the Estes that this structure would have been able to be permitted as it is today. MR. PIRES: But I believe your testimony today is that the zoning in place from October of 1968 to October, 1974 on this property was MF -1; is that not correct? MS. CRISP: That is what I've stated, yes, sir. MR. PIRES: And didn't you also previously determine in your research something quite contrary, different, that the zoning was RSF -4 since 1970? MS. CRISP: As I stated, the preliminary research shows that that was one of the possibilities, but further research showed that the zoning was MF -1. MR. PIRES: What was the time frame between the first research when the zoning was determined by you to be RSF -4 and your determination that the zoning was in fact MF -1, the entire time frame from '68 to '74, how many months went by? MS. CRISP: You'll have to give me a couple of minutes to be able to look to give you the exact dates on that. MR. PIRES: Okay. MS. CRISP: It's kind of a big case. Or thick one, anyhow. MS. DUSEK: I would also request that you explain what MF-l and RSF-4 is. MS. CRISP: Actually, if you don't mind, that's why I brought the planning specialist, Cheryl Soter, and she can go into more detail on that for you, since that's kind of her expertise there. Page 21 . - '~'~'-"-""--"~-~-"'-"-'-'- November 29,2004 As you stated, on 4/19/04, the preliminary research did show it as residential single-family slash four. MR. PIRES: And over what time frame, Ms. Crisp? MS. CRISP: I'm still looking. And on October the 23rd of 2004, further research showed that it was zoned MF -1. So if you want me to do the math there, which I'm sure you folks can come up with that difference between those two dates, I would say approximately about a month. MR. PIRES: The time frame -- the date when you determined in your opinion that the zoning category was not the RSF -4 that you decided in April, but instead you determined it was now MR -1, that was after you signed your affidavit of August 5th, 2004 for the statement of violation and notice of hearing; is that not correct? MS. CRISP: I would have to look at this statement of violation to be able to clarify that. But if Michelle can verify that by looking. I signed the affidavit on August the 5th of 2004, but I don't really see where you're making a reference to this statement of violation referring to the zoning at that time. MR. PIRES: I guess what my question is, your determination that the property was a different zoning category -- in other words, you made that determination in August -- was after the statement of violation and four months after your initial determination it was RSF -1. In other words, you changed your opinion as to the zoning category after the statement of violation went out and after you did further research; is that correct? MS. CRISP: I wouldn't say I changed my opinion, I changed my statement due to the further research. We have met numerous times, Tony, and tried to -- or I believe -- tried to work together to rectify this for the Estes, so that we could show there was a possibility of this habitable structure being legal. So as time went on and research went on, I was able to verify Page 22 ~._--..._~-_._._- ,. November 29, 2004 different zoning ordinances. MR. PIRES: I guess my question is, you said this is a simple case, yet you have come up in your research with two different completely zoning categories for this property within a four-month span. MS. CRISP: I don't believe I said it was simple. None of these cases are simple. MR. PIRES: I believe you said that. I could be mistaken. Ms. Crisp, are you able to tell me what building code was in fact in Collier County for the time frame of 1968 through 1972? MS. CRISP: No, sir, I cannot. MR. PIRES: Can you provide and cite to a section of any building code that was in effect in Collier County between 1968 and 1972 that required a building permit for this structure? MS. CRISP: No, sir. All I can go by is the zoning ordinances for that time, which could be stricter, even so as they show with the evidence I brought today, which -- where the setbacks and the square footage of the said structure would have to be in accordance to Collier County zoning ordinances. MR. PIRES: I guess the question, if I may, the question is, the answer is no, I believe. You said you could not provide or cite to any section of any building code in effect between 1968 and 1972 that required a building permit for this structure's erection, placement or modification. MS. CRISP: No, sir. I do not have access to the building code of that time. MR. PIRES: So you cannot provide that section or citation? MS. CRISP: No, sir. As I said, I do not have access to that. MR. PIRES: Is it fair to say from your research and the property appraiser's records, that the property that's the subject matter of this action was placed, erected or modified between October 8th of 1968 and October 7th of 1974? Page 23 _.__._-<._~_._,~ November 29, 2004 MS. CRISP: Well, knowing that the property appraisers do what they call "drive-by's" every three years and the said structure was observed in 1972 and added to the tax roll in '73, I would imagine that would take us to 1969, if I'm not mistaken. MR. PIRES: So the answer would be yes, it's fair to say that the record evidence indicates that the structure at issue was placed, erected or modified on this property between October of '68 and October of74? MS. CRISP: Like I said, I believe it would be 1969 due to the drive-by's every three years. MR. PIRES: Okay. And that's between October, '68 and October, '74. MS. CRISP: Well, I wanted to be more to the point to make sure everybody understands what I am stating. MR. PIRES: And I believe you mentioned, since it was a drive-by, so that reflects that no one from the property appraiser's office ever went physically onto the property to examine in detail the nature of the structure, its contents and its improvements. MS. CRISP: Well, I also can see what the no change, with today's -- the way they tax it from the property appraiser's, that Mr. nor Mrs. Estes has made any attempt to clarify the use of that said structure. MR. PIRES: But I guess the question is, by virtue of the drive-by, that reflects that no one from the property appraiser's office physically went up and looked at that -- MS. CRISP: I couldn't answer that question. I wasn't with the person. MR. PIRES: Would it be fair to say that they did not by virtue of it being a drive-by? MS. CRISP: I don't think it would be fair to say if I don't know. MR. PIRES: Okay. Bear with me, Mr. Chairman, if I could, I have a few more questions at this time -- on my checklist, thank you. Page 24 n ___~._.-.. November 29, 2004 Ms. Crisp, do you have the section of the MF -1 regulations that were in effect in 1969? MS. CRISP: I have the ones for 1968, yes, sir. That would have been covered in 1979. The change, actually -- the ordinance after that would be the ordinance of 1974. But I do have it here, and as the copies I gave to you during our numerous meetings to show you where we were coming up with our findings. MR. PIRES: Okay. Now, isn't it correct that the one page dealing with the development standards for the MF -1 regulations have notations at the top stating, revised April 11 th, 1972, amended December 12th, 1972; is that not what your copy of the zoning ordinance for the MF -1 regulations reflect? MS. CRISP: Yes, sir. MR. PIRES: Do you have a copy of the zoning ordinance document itself in effect in 1969 dealing with the minimum yards, minimum floor area, et cetera, requirements for the MF -1 regulations? MS. CRISP: Actually, with my research and with a lot of help from the folks over at -- the ladies over in the records department on the fourth floor, the revised parts of that ordinances -- they took the time on Wednesday to pull all of those revisions -- and all of those revisions I do have here and, as I presented them to you this morning, show no changes for the sectio~ at that time that is known as 11.8. MR. PIRES: That's not my question, Ms. Crisp. My question was, do you have the page that was in existence in 1969, 1970, 1971, up until revised April 11th, 1972, amended December 12th, 1972? Do you have that page? MS. CRISP: For 11.8, yes, sir, I do. MR. PIRES: Can you provide that to me, I've never seen that before? MS. CRISP: As I have many a times when we've sat in the meetings, we've showed it to you numerous times. And as I was stating about the revisions, I wanted to clarify that any of the revisions Page 25 .--..---,._.~......-......~,._----_." November 29, 2004 did not pertain to that section, 11.8. So that's why I can say that that is the same provision at that time due to none of the revisions covering 11.8. MR. PIRES: Ms. Crisp, do you have a copy, then, that does not say revised April 11, '72 on top? MS. CRISP: No, sir. MR. PIRES: Do you have a copy that says -- that does not have amended December 12th, '72 on top? MS. CRISP: No, sir. MR. PIRES: So -- do you then have -- by the way, the font type is different, isn't that correct, on the page dealing with the minimum yards, the minimum floor area requirements. It's different than the font size, style and type of the first section of 11.8 dealing with MF-l regulations? MS. CRISP: Yeah. I mean, I'm no expert on the different types of lettering, but it does appear to be at least more bolder. MR. PIRES: Now, the first page that you have in your regulations dealing with Section 11.8, does it have language on the top saying revised April 11 th? CHAIRMAN FLEGAL: Just a minute. Excuse me, Tony. You're talking about pages of ordinances from '68 and -- the board has none of this, so we don't have the slightest clue what you all are talking about. None of that has been submitted as evidence. If it's something, again, you're going to submit, then wait your turn, because we don't know what you're talking about, we can't look at it, compare it, know whether it's true, know whether it's doctored. We have no idea what you're doing. MR. PIRES: I understand. If I would be able to hand it out now it would be easier, but I understand your protocol waits for my case. One more question on this point then. Ms. Crisp, do you have in your possession today a copy of that page of the zoning ordinance dealing with the MF -1 regulation, the minimum yard requirements, the Page 26 November 29, 2004 minimum floor area requirements that does not have at the top revised April 11 th, 1972, amended December 12th, 1972? Do you have that in your possession? MS. CRISP: No, sir. But to elaborate, as I said, I do have the revisions for that time that has been provided to me by the records department to verify that there was no changes for that Section, 11.8. MR. PIRES: Did the records department provide to you the page as adopted in 1968 without this notation of revised '72? MS. CRISP: They provided to me as you've seen this morning, the same papers that I gave you, the revisions. MR. PIRES: Those are resolutions -- those are minutes; is it not correct, Ms. Crisp? MS. CRISP: Yes, sir. MR. PIRES: They are not pages from the ordinance; is that not correct? MS. CRISP: No, sir, they are not. MR. PIRES: Bear with me, Mr. Chairman, I may be finished actually at this time, subject to the right to have her recalled. I have nothing further at this time, subj ect to the right to recall her on my case. Thank you very kindly, Mr. Chairman. CHAIRMAN FLEGAL: Any other questions? Ms. Crisp, you say you have someone -- there is someone here from zoning that we can ask some zoning questions. MS. CRISP: From planning -- CHAIRMAN FLEGAL: From planning. MS. CRISP: -- from planning, yes, sir. Her name is Cheryl Soter. CHAIRMAN FLEGAL: All right. From a zoning standpoint, are you familiar enough, if we asked you a question that you can say you don't know if we ask the question? The fact that a piece of property is zoned something does not mean you can automatically build it without a building permit; is that Page 27 .-..------. -...- November 29, 2004 correct? MS. CRISP: That is correct. CHAIRMAN FLEGAL: Fine. Thank you. Any other questions for Ms. Crisp? (No response.) CHAIRMAN FLEGAL: Thank you, ma'am. MS. CRISP: Thank you. CHAIRMAN FLEGAL: County have anybody else they want to present? MS. ARNOLD: We'll have Cheryl Soter come and provide us information on planning process and zoning process. (Speaker duly sworn.) CHAIRMAN FLEGAL: Pull the microphone in front of you, please. Thank you. MS. SOTER: Good morning, ladies and gentlemen. Cheryl Soter of zoning and land development review. With respect to the current zoning, for clarification, hopefully I can help with that. RSF-4, that stands for residential single-family, four units per acre. That is the current zoning on the property. As far as the dates, I might have to refer to Rita, because I didn't memorize the dates. The previous zoning of the property, I believe was RS-l? MS. CRISP: The first zoning was -- MS. SOTER: No, I'm going backwards from today to the past. Prior to -- in between MF-l and RS-4. Excuse me. For the record, RS-4, residential single-family. They just use different acronyms for it. Four units per acre. And then you have the MF -1, which was based on the 60 -- I believe the '65 code, which was MF -1. And I'll read to you from the code here. MF -1 stood for one and two-family residential district. It did have a different -- as far as density rating, it did list in here 13.2 dwelling units per net residential acre or less, as specified. Page 28 ---.----..---.- November 29, 2004 Through the years, zoning districts have changed for different properties. The area that we're talking about, this is from the '68 code, it was zoned MF-l, and then it was rezoned to RS-4, and then at another time, RSF -4. At all times it was referred to as a one and two-family district, not a multi-family, as you would think under the MF zoning acronym there. Did you have any specific questions? MS. ARNOLD: Cheryl, I'll have a couple questions. Can you tell the board what uses are permitted in both -- or all three zoning districts, the RSF -4, which is what the zoning is today; the RS-4, which is what it was prior to its current zoning; and the MF -1. And would the structure as a habitable structure be allowed under any of those zoning districts? MS. SOTER: A habitable structure would be permitted under all those zoning districts as a guesthouse. But there's specific criteria listed in each one of these zoning ordinances regulations that you have to meet in order to -- like the current code, today's code, you need to have a minimum of one acre and 105 frontage, and you have a restriction of a guesthouse not being more than 20 percent of your principal dwelling, nor can you lease or rent it out, use it for commercial purposes, as a guesthouse. That's the current code. The previous code to that, as specifies here, a guesthouse was allowed. They have different terminologies. One refers to transient lodging, which is a commercial use, and one is just a regular guesthouse. And the regular guesthouse, you could not lease or rent out at all. As far as specific standards, they do not have a section that I'm aware of that I've been able to find as they do today currently that would give the restriction of the 20 percent rule, so to speak, or the minimum lot area or frontage. MS. ARNOLD: Were there -- MS. SOTER: You still have the same setback requirements as Page 29 November 29, 2004 your principal structure, under each one of the MF -1 and RS -- 4 districts. MS. ARNOLD: What are the setback requirements under MF-l ? MS. SOTER: MF-l are front yard, 25-foot; side yard, seven and a half feet for one story; a two-story is 10- foot; rear yard is 20- foot. MS. ARNOLD: For a guesthouse, what would the requirements be under MF-l? MS. SOTER: They would be the same. MS. ARNOLD: For a shed, what would the requirements be? And let me rephrase my prior question. For a habitable structure, what would the setbacks be for MF -1 ? MS. SOTER: Same as the principal. MS. ARNOLD: For a shed, what would the setbacks be? MS. SOTER: Under accessory, they list accessory structure, height limitation, two and a half -- not to exceed two and one half stories in height. Shall not cover more than 30 percent of the required rear yard, and shall not be -- and shall be at least five feet from side lot lines and common rear lot lines or alleys, or shall have the same setbacks as the principal structures, whichever is greatest. Accessory structures shall be located at least ten feet from any other structure on the same lot. MS. ARNOLD: And that's in the MF-l zoning district? MS. SOTER: That is specific to the 1968 code for all accessory structures. Section 5.7, location of accessory structures. MS. ARNOLD: What about the RS-4 zoning district, are the setback requirements similar for guesthouse or habitable structures? MS. CRISP: Today's ordinances or-- MS. ARNOLD: No, RS-4, do you have that information? MS. SOTER: That's the other book. MS. ARNOLD: Do you have the RSF-4 information in front of you? Page 30 November 29,2004 MS. SOTER: RSF-4 in front of me, no. MS. ARNOLD: What would the requirements be for it currently? MS. SOTER: Currently, it is seven and a half on each side for side yard; rear yard of 10- foot; and same as principal. And that's under current code for accessory structures, 2.6 under the LDC. I'm not sure of the code under the new UDC. MS. ARNOLD: So the setbacks would be ten feet in the rear for a habitable structure? MS. SOTER: No, that would be that of an accessory structure, such as a storage shed. MS. ARNOLD: For a habitable structure, what would the setbacks requirements be? MS. SOTER: For a habitable structure, same as the principal. And under RSF-4, that would be 25 in the rear, seven and a half on the side, 25 in the front. MS. ARNOLD: Okay. Cheryl, can you explain to the board how amendments are made and -- because Mr. Pires was questioning the fact that one of the documents that he was referring to had a date above it indicating that it was -- that language on that text was amended. Can you explain for the board how amendments are made to the land development code or at the time of the zoning ordinance. MS. SOTER: Yes. Now that I found -- let me go ahead and state the accessory structures. Under the '74 code under the RS-4 district, under accessory structures, we have a multitude of structures listed here. Rear yard, being for parking garage, of 10-foot, 10-foot to 10- foot -- excuse me, 10- foot separation, structure to structure, side yard of 15-foot for detached structures. They also list utility buildings, a rear yard of 10- foot, side yard of 10- foot, 10- foot between structures. Unlisted accessory uses, front, rear and side are all same as principal structure, with a structure-to-structure separation minimum Page 31 .,--_._~.,..~--,~~"_.- November 29, 2004 requirement of 20- foot. As far as amendments go for the zoning ordinance, land development code, I know we keep changing the names. They're all zoning regulations for Collier County. We have a process where we amend the code currently two times a year, and then emergency amendments as well. But all that is through the public hearing process. You amend the code. We revise that through an ordinance. Rita had mentioned she did get the minutes from the past previous hearing to amend the code that's in question. I believe it was a '68 code. And in the past, to my knowledge, they would amend those particular pages and put at the top as a matter of reference that that was amended on a specific date, so that if you were going through that, that you could find out what part of the code was amended from the past code. Now, as far as having the original copy, we were not able to find an original copy. Through the years you replace pages in your book that amends that particular section of the code. But that's all done through the ordinance process, public hearings· and such and things like that. Did I answer -- MS. ARNOLD: Yeah. So the fact that the type -- statement on the top of the page indicated that it was amended by a specific date, does that mean -- what does that mean exactly? Does-- MS. SOTER: That is referencing a portion of that page or possibly all of that page was amended at that particular date. And that is why Rita went to the clerk's office, to find out if in fact did that portion of the code change that would change the outcome, that would possibly allow this particular structure. And we were not able to find anything that that changed 11.8, which is the section of MF -1 in question. MS. ARNOLD: In your opinion, would the structure in question, the habitable structure, be allowed under -- as a habitable structure under any of the zoning districts, MF -1, RS-4, or RSF -4 ? Page 32 --_...^-"..._~,-~~ November 29, 2004 MS. SOTER: Under, I believe, MF-l, it talked about two-family dwellings, and we did do the density for that respect. As far as a possibility meeting density, having two dwellings, but it would become a nonconforming structure in that particular case, because it would not meet the setback requirements at that time to become -- nor was it permitted to verify that as a second dwelling. MS. ARNOLD: Okay, so -- MS. SOTER: Two-family. MS. ARNOLD: -- what you're saying is that the number of units on the property are permissible under the MF -1 zoning? MS. SOTER: Under the MF-l zoning, density-wise, the 13.2, if you divide that into acreage, that was a possibility. But they did not meet -- because of the 10- foot rear yard. They needed to be 20 at that time for rear yard. MS. ARNOLD: Okay. So as it exists today, would -- with the setbacks that it has today, would that be an allowable habitable structure? MS. SOTER: Under today's code? MS. ARNOLD: Under the MF-l, considering the setbacks and all that was required, will that structure be allowed -- would that structure have been allowed to exist in the location that it is? MS. SOTER: No. MS. ARNOLD: Were there any other requirements with respect to square footage requirements for -- MS. SOTER: Under the two-family, I think they called it-- yeah, under the two-family, under the MF -1 code, it had a minimum square footage requirement of 800 square feet. MS. ARNOLD: For? MS. SOTER: For a one-story single-family dwelling. A two- family was 500 square feet per unit. MS. ARNOLD: Okay. Thank you. I don't have any other questions. Page 33 November 29, 2004 CHAIRMAN FLEGAL: Ms. Soter, question. In the '68, '74 or today's land development code zoning back then, did the zoning specifically state that when property is zoned whatever, MF -1, RS, who cares what the number is, that there -- that automatically removed a requirement to obtain a building permit? MS. SOTER: The zoning ordinance never regulated permits. I have had ten-and-a-half years of experience with the building department, since 1987. As of that time, there were not building codes per se that regulated that. It's a building administrative ordinance specifically that outlines what is required to get a permit or not. CHAIRMAN FLEGAL: Okay. But just because property was zoned "X" in '68 didn't mean that when I bought it, I could build whatever I want without a permit? MS. SOTER: That's correct. CHAIRMAN FLEGAL: Okay. Because I mean -- I seem to be getting lost here. We're talking about square footage setbacks and all that, and they're cited for not having a permit. So I'm really not interested in the zoning, unless zoning removed the requirement for a permit, which, based on everything I've read and what's been said so far, that did not occur. So I don't care what it was zoned, you still needed a permit, correct? MS. SOTER: To the best of my knowledge. I do not have the ordinance from '68. That was the other thing, we don't have a -- we have an estimated time frame, and that's why we've gone back through many ordinances to try and find somewhere where it would give us some direction where it might have been permitted in one way. CHAIRMAN FLEGAL: But from articles or sections that you've read of what you can find, you never ran across a specific paragraph in zoning that said just because the county zoned it this, they don't have to go get a permit, regardless of what it was called way back when, whether it was an administrative procedure, Page 34 November 29, 2004 ordinance, who cares. Nothing -- there's nothing written that says once the county zones it, people can build whatever they want without a permit? MS. SOTER: Not with any -- within any zoning ordinance. CHAIRMAN FLEGAL: Okay. Any questions from board members? MS. DUSEK: Yes, I have one question. The way the structure exists today or the way it was in '68 -- I don't know when it was built, let's say it was 1970 -- it sounds to me, and correct me if I'm wrong, that no matter what, they would not have been able to get a permit because of the setbacks and the size. MS. SOTER: Not as a habitable structure as it's been utilized through the years. MS. DUSEK: Okay, now, let's assume that it was not habitable at that time. Still, the setbacks were not correct, and so they would not be able to get a permit; is that right? MS. SOTER: There was -- that's what's -- well, let me double check the language here under the accessory structure, because it references whichever is greater, I believe. That would be correct, because it says -- let's see. Shall have the same setbacks as a principal structure, whichever is greatest. And then it goes on to say accessory structures shall be located at least ten feet from any other structure on the same lot. So, yes, that would fall under the principal structure required setbacks at that time in '68 of 20- foot. Under today's code, we allow 10-foot in the rear for an accessory structure, such as a storage building or shed. CHAIRMAN FLEGAL: Any other questions from the board? MR. PONTE: Yes, I have one. It's a matter of historical perspective. Just tell me how active any enforcement service was in the county regarding following up on building codes and that sort of thing in the decade 1965 to 197 5? Was it sort of a laissez-faire, and Page 35 --_..-._._~_.~".;._. November 29, 2004 let them build it as it is? MS. SOTER: That predates my experience with the county. I started April 27th of 1987. But, historically, finding records, I know that the building department had through the years sent copies of permits when they were issued to the property appraisers. That's why you'll find records of permit number references. As far as enforcement of that era, I cannot comment on. I do not have any knowledge of what took place specifically or what didn't take place as far as enforcement. MR. PONTE: Are there any records of enforcement; go back to how far? MS. SOTER: Are you referring to the building code specifically? MR. PONTE: Well-- yes. What I'm trying to determine here is whether or not this was just sort of let slide by the county because no one cared, for years. MS. SOTER: I know through the years we've beefed up the enforcement throughout the county. I don't know. MR. PONTE: Okay, thank you. MR. KRAENBRING: I have a question. They purchased the property in 1989, approximately. On their listing sheet it says great investment house with guesthouse. At that time the zoning allowed a guesthouse on the property, regardless of the setbacks? MS. SOTER: In '89, they still would have had to have the one acre -- well, see, if it was legally permitted, it could be deemed legally nonconforming, but it still would not erase the fact of the code at that time and prior code that it was not legal to rent out or lease a guesthouse. CHAIRMAN FLEGAL: We're not discussing the renting of anything so -- that's not in question. MS. SOTER: Okay. Well, he asked about the guesthouse. MR. KRAENBRING: I'm just asking about a guesthouse. A Page 36 --"-"~--~----'~"" ~-~ November 29, 2004 guesthouse was permitted under the zoning ordinance at that time? MS. SOTER: With restrictions. You would have to meet the criteria of the one acre and 105 street frontage and 25 percent rule, as far as it could not exceed the 20 percent of the main dwelling, if you're permitting a new structure at that time. I don't think they have an acre of land under that current code in '89, but they purchased it that way. MR. KRAENBRING: I just see that it says -- on their listing sheet it says guesthouse. Mr. Chairman, just tell me if this is not something we can discuss at this time, on Exhibit C, it appears that it's the rental dwelling registration form for 2000. Is that the first one filed? MS. SOTER: I'll have to defer to code -- CHAIRMAN FLEGAL: I think the address on that is the main structure. The structure that's nonconforming that we're talking about has a different house number, which is not on that form. So you can discuss that one. That's the main structure. MR. KRAENBRING: But it does say the number of buildings, two buildings, one unit per building. Okay, and that was filed in 2000. Was there one filed in 1989? CHAIRMAN FLEGAL: They're not being cited for not filing a form at this time. So that part of it really isn't in question. MR. KRAENBRING: That may be something we get into at the CHAIRMAN FLEGAL: At the next session. Yes. MR. KRAENBRING: Thank you very much. CHAIRMAN FLEGAL: Any other questions from board members? Mr. Pires. MR. PIRES: Thank you, Mr. Chairman. Bear with me a moment, if I may. Hello, Ms. -- do you prefer Cheryl or Ms. Soter? MS. SOTER: Either one. Page 37 November 29, 2004 MR. PIRES: Just a brief -- if I may. Cheryl, I believe your testimony was as to the subject portion of the code in effect between 1968 and 1974 as to the MF -1 regulations. You've had a chance to review that specific page, I believe it's Page 46? MS. SOTER: Forty-five, where it begins 11.8. MR. PIRES: Right. It begins on Page 45, and it carries over to Page 46; is that not correct? MS. SOTER: Correct. MR. PIRES: And in looking at the font size, type and style, are they substantially different between Page 45, where the MF-l regulations begin, and Page 46, where the development standards appear as far as setbacks and lot size and structure size? MS. SOTER: Yes, there appears to be a different font size. MR. PIRES: Now, at the top of Page 46, does your copy not indicate it states revised April 11, 1972, amended December 12th, 1972? MS. SOTER: Yes, it does state revised April 11, 1972, amended December 12th, 1972. MR. PIRES: Do you have a copy of that page of the zoning ordinance in effect from October, 1968 up until April 11th of 1972? MS. SOTER: That specific copy page, no. MR. PIRES: Do you have a copy of that page that was in effect then between October -- you do not have -- withdraw that question. With regards to the various -- sticking with that particular code for now, I believe as to the MF-l regulations, if you go to Page 45, it states that in accessory uses that are allowed include accessory uses and structures including private garages? MS. SOTER: That's correct. MR. PIRES: Isn't it also correct that in that code in effect from '68 through '74 that the definition of accessory uses said, "including secondary references" was included as an accessory structure? MS. SOTER: Yes, it does include that, and also refers to Page 38 November 29,2004 guesthouse. MR. PIRES: But it specifically says accessory uses include secondary residences; is that not correct? MS. SOTER: That's correct. MR. PIRES: So is it fair to say then accessory use in the MF-l regulations was a secondary residence? MS. SOTER: Say that again? MR. PIRES: Then it's correct that the zoning ordinance states that as to the MF -1 regulations, a secondary residence is an accessory use and that accessory uses -- therefore, it's a valid accessory use in the MF -1 regulations. MS. SOTER: It does reference secondary residence, but it doesn't define it specifically other than in past codes. In '61 and '65 it specifically references that. MR. PIRES: But it's not defined in the '68 to '74 code? MS. SOTER: No, but it does reference guesthouse, which is consistent with your 1961 and '65 code. MR. PIRES: But I'm talking about the '68 to '74 code, that's the operative code that we're dealing with; is that not correct? MS. SOTER: Yep. MR. PIRES: And accessory uses include a secondary residence between '68 and '74 in the MF-1 district, correct? MS. SOTER: Yes. MR. PIRES: And can you -- did you bring with you today a specific section of any code that required a building permit be issued for the structure -- building code in effect between 1968 and 1972? MS. SOTER: No, I did not, because I'm here as a witness, so to speak, for zoning regulations, not building codes. MR. PIRES: Have you ever reviewed any section of the building codes in effect between '68 and '72 that required a building permit for this structure? MS. SOTER: No, but it wouldn't be the building code, it would Page 39 November 29, 2004 be a separate ordinance. MR. PIRES: Have you ever seen any code that required a building permit for the structure between '68 and '72? MS. SOTER: No. MR. PIRES: Okay. If I may, Mr. Chairman, just a few moments. Thank you. In the 1968 code, the code in effect between 1968 and 1974, did it differentiate setbacks between habitable and non-habitable accessory structures? MS. SOTER: It refers to principal uses and setbacks under the MF -1 district, and there's a separate code for accessory structures -- or excuse me, a separate area for accessory structures. MR. PIRES: But does it differentiate between habitable or non-habitable or habitable and sheds as far as setbacks in the '68 to '74 code? MS. SOTER: No, the zoning ordinance does not refer to structures as habitable by definition. It defines what an accessory use is versus principal. . MR. PIRES: Bear with me just a moment, Mr. Chairman, I may be finished with Ms. Soter for now, but if I could just consult. Ms. Soter, you've been employed by the county since 1987, I believe? MS. SOTER: Yes. MR. PIRES: Isn't it common knowledge that a substantial portion of the building permit records from the time frame at issue between -- in the Sixties and Seventies were lost or destroyed or damaged? MS. SOTER: I don't know that they were lost or destroyed, necessarily, but I know there's a time limit upon which the county is legally required to keep records. The specific time frame, I don't know, because I haven't been with the building department in a while. MR. PIRES: Isn't there a substantial difficulty in researching Page 40 November 29, 2004 records between the time frame of, say, 1965 and 1975 as far to building permits? MS. SOTER: I believe so, yes, there's difficulty, because they're not required to keep residential permits for that long of a period. MR. PIRES: So they may have disposed of some during the time frame at issue here? MS. SOTER: I guess that's a possibility, yes, definitely. MR. PIRES: Thank you. I have no further questions. CHAIRMAN FLEGAL: Anyone else have questions for Ms. Soter? MS. ARNOLD: Yes. Cheryl, the accessory use section for the '68 code that was referenced, does the structure in question meet these setback requirements? MS. SOTER: No, it does not. MS. ARNOLD: Okay, thank you. CHAIRMAN FLEGAL: Thank you, Ms. Soter. Michelle, do you have any other witnesses? MS. ARNOLD: No, we don't. CHAIRMAN FLEGAL: Are you done with your presentation? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Before we get to the -- MR. PIRES: If I could just have one more question of her following up on Michelle's question, Mr. Chairman? CHAIRMAN FLEGAL: Sure. MR. PIRES: Thank you, Mr. Chairman, for that indulgence. Ms. Soter, the response that you provided to Mrs. Arnold's question, is that -- your answer, is that predicated upon the Page 46 of the zoning ordinance that contains at the top revised April 11 th, '72, amended December, 1972, as far as the setbacks in the MF-I regulation? MS. SOTER: The setbacks for MF-l is located on Page 46. MR. PIRES: Is that the page that at the top states in type revised Page 41 November 29, 2004 April, '72, amended December, '72? MS. SOTER: Yes, it does. MR. PIRES: And that is the page upon which you base your testimony as to what the setbacks were? MS. SOTER: That's correct. MR. PIRES: It is not the page that was in existence prior to April, 1972? MS. SOTER: No. But I'm fully confident that is accurate, based on the official records we received from the clerk's office. MR. PIRES: But that is not reflected -- you have no page reflecting prior to April, 1972; is that correct? MS. SOTER: April 11 th -- no. MR. PIRES: Thank you. MS. ARNOLD: Cheryl, do you have the code prior to April, 1972? Is there a '68 code? MS. SOTER: Well, this is the '68 code with the revised pages. As far as the original copy prior to any revisions being made, we were not able to locate that specifically. But one explanation why they put revisions up here, even though this section of the code wasn't changed, if parts of it prior to it was changed, they have to change the page numbers. When you're adding more text to a code, you have to expand it, and when that page number is revised, you have to put a notation at the top of it. MR. PIRES: Mr. Chairman, just briefly. Ms. Soter, I believe you testified you were not present at the creation of that amended Page 46; is that correct? MS. SOTER: I was not present? MR. PIRES: Correct, as a county employee? MS. SOTER: No. MR. PIRES: You did not participate in the process whereby that page was amended; is that correct? MS. SOTER: I was not here, no. Page 42 November 29, 2004 MR. PIRES: So your testimony is mere speculation and conjuncture as to why that page was revised; is that correct? MS. SOTER: Based on my experience with the county through the years, that's the way it's been handled through the entire time, up until the recent LDC changes where we hired somebody to handle it. We amended codes in that way, which is consistent. MR. PIRES: This is 15 years prior to your beginning employment with the county, correct? MS. SOTER: Correct. MR. PIRES: It's speculation and assumption on your part, is that correct, as to what happened back in 1972? MS. SOTER: Speculation? I don't know. It's consistent with what's been done through the years. MR. PIRES: Thank you, Mr. Chairman. CHAIRMAN FLEGAL: Okay. Michelle, are you done? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Thank you, Ms. Soter. Before we get to the defense portion of this, we're going to take a 10-minute break, okay. It's -- let's make it eight. It's 10:52, let's be back at 11 :00. (A recess was taken.) CHAIRMAN FLEGAL: All right, we'll call the Code Enforcement Board back to order, please. Ms. Arnold. MS. ARNOLD: Mr. Chairman, we do have a request to hear item -- interrupt the current public hearing and hear item No. 2004-69. That's the Taylor Road case, which is item number two on your agenda. We -- during this public hearing process, have come to an agreement with the attorney representing the clients, and rather than going through the whole public hearing process, they're going to stipulate to the violation, and the investigator is prepared to go through Page 43 November 29,2004 what the stipulation agreement is. CHAIRMAN FLEGAL: Okay. Have you talked to Mr. Pires, is he all right with that if we -- MS. ARNOLD: Mr. Pires indicated he didn't have any objection to us doing that. CHAIRMAN FLEGAL: Okay. In order to do that, the board needs to make a motion and vote on interrupting the public hearing on Case 2004-042 and hearing the stipulated agreement on case 2004-069. MS. DUSEK: I make a motion that we interrupt the public hearing, Case No. 2004-042, and hear the stipulated agreement on Case No. 2004-069. MR. PONTE: I'll second. MR. BOWIE: I'll second. CHAIRMAN FLEGAL: We have a second. We have two of them, in fact. Any further discussion? Hearing none, all those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? Okay. Ms. Arnold. (Speakers were duly sworn.) MR. CAMPBELL: My name is Tom Campbell and I'm employed as an investigator with the Collier County Code Enforcement Board. And the stipulation agreement on this case, I'll go through what actually was agreed upon. First item is eliminate all legal rip-rap and swale repairs Page 44 November 29, 2004 immediately. And we're saying within ten days of a meeting which we're establishing for tomorrow, tentatively. Restore canal bank, including silt removal from the canal. Item two, meeting with county personnel, Phoenix Associates and Taylor condo association people within ten days from 11/29/04 to discuss what will be required to bring the property into compliance. Item three is submit a written proposal to bring the property into compliance with the original water management plan of the site development plan, which is SDP-99-096, including the following items: Eliminate rain runoff, which, parentheses, downspouts from the rear of building No. 100-110, which is the westernmost building. And B, correct the runoff flow to northern and southern boundary swales. The proposal is to be submitted within 30 days from the date of the meeting, which is item number two, or a fine of $200 per day will be assessed against the property owners if the above is not completed -- or is not complied with. Item number four, and the final item, is implement and complete proposed remedies within 30 days of receiving approval from county project manager. Failure to comply will result in a penalty of $250 per day being assessed against the property owners. And the respondent is to notify code enforcement when the violation has been abated and request the inspector come out and perform a site inspection. MS. ARNOLD: They've also stipulated, I believe, to pay operational costs in the case; is that correct? MR. CAMPBELL: Of$650. MS. DUSEK: I just have one question for you, Mr. Campbell. MR. CAMPBELL: Yes, ma'am. MS. DUSEK: In the original recommendation, it says eliminate the 100 downspouts. MR. CAMPBELL: Building 100 downspouts. That's the Page 45 November 29, 2004 westernmost building. And the problem is the water's rushing from the downspouts over the driveway and over the bank and eroding the bank of the canal and silting up the canal. That would be part of this, yes. MS. DUSEK: That was not mentioned in your stipulated agreement, or was it? MS. ARNOLD: It's not -- they're not 100 downspouts, if that's what you're -- CHAIRMAN FLEGAL: It's Building 100. MR. BOWIE: It's Building 100. MR. CAMPBELL: It's Building 100. Yeah, I'm sorry, twelve downspouts -- MS. DUSEK: I'm sorry. MR. CAMPBELL: -- and they're to be relocated to comply with the water management plan. MS. DUSEK: Relocate those? MR. CAMPBELL: Yes. MS. DUSEK: Okay. MR. LEFEBVRE: I have a question. MR. CAMPBELL: Yes, sir. MR. LEFEBVRE: Section one of the agreement states that within ten days, the silt and rip-rap will be taken out. MR. CAMPBELL: Yes. MR. LEFEBVRE: Okay. But then also you said -- in number two, you said the association would meet the -- MR. CAMPBELL: With county and with Phoenix, the contractor. We tentatively have a meeting set up for 3 :00 tomorrow. But I stipulated within ten days from this date. MR. LEFEBVRE: To do what, again? MR. CAMPBELL: Well, to discuss and resolve what issues have to be -- what -- steps to be taken and what has to be done. MR. LEFEBVRE: But would those be days for both of those -- Page 46 November 29, 2004 I mean, don't they have to figure what they have to do first before they can go ahead and do it? MR. CAMPBELL: The rip-rap is illegal -- MR. LEFEBVRE: Okay. MR. CAMPBELL: -- and that should not be there at all. There's a swale that's illegal. That should not be there. And that will not be -- that doesn't interfere with their remedies. MS. ARNOLD: I believe the stipulation was within ten days from the 29th of -- right? MR. LEFEBVRE: From tomorrow, I thought you said. MS. ARNOLD: Yeah. MR. CAMPBELL: Well, ten days from today. MR. LEFEBVRE: Today, okay. MR. CAMPBELL: Okay? But we've already set up the meeting for tomorrow afternoon. MR. LEFEBVRE: I mean, is ten days reasonable to get a contractor in there to -- MR. CAMPBELL: They've agreed to come. MR. LEFEBVRE: Okay. CHAIRMAN FLEGAL: I have a question for Jean before we proceed. MS. RAWSON: Yes. CHAIRMAN FLEGAL: In hearing the stipulated agreement and reading the recommendations, which it follows fairly much, they have a -- I think it was a $200 a day was your first penalty, if they didn't do something? MR. CAMPBELL: Yes, sir. CHAIRMAN FLEGAL: And then you again added at the very end that if they didn't get everything completed within "X," there was another 250. MR. CAMPBELL: 250. CHAIRMAN FLEGAL: We have two penalties there that are Page 47 November 29, 2004 way over the $250 a day limit, so I need to ask you about it. MS. RAWSON: Well, it depends on what the stipulation says. If they are each tied to a separate violation, it's not a problem. CHAIRMAN FLEGAL: Okay, but as I'm reading, the one is just bringing -- bringing the one item into compliance by "X," or it was $200 a day. MR. CAMPBELL: The first penalty would be started if they failed to meet the deadline for presenting a proposal to remedy the situation. CHAIRMAN FLEGAL: Okay. MR. CAMPBELL: And that would be $200 -- CHAIRMAN FLEGAL: That's not a violation of any ordinance, okay? In other words, what -- our power is limited to we can penalize people for violation of an ordinance, you know, and you have to have a section. You just can't say well, if you don't give us this piece of paper by a date we're going to fine you "X." And then if you don't do this by a date, we're going to fine you "X." We don't have that kind of power. Our power, if he's in violation often ordinances, I can hit him $250 a day for each one, but I got to tie it to each one. I just can't say you didn't give me a piece of paper, so you're penalized. So if you want to -- MR. BOWIE: I have a very similar concern. The second part of this agreement almost sounds like an agreement to agree, to try to agree upon something in the future. The way the recommendation was written is that the proposal would be to bring the property into total compliance with an original water management plan in a certain SDP. Now, that's concrete. But to say that we're going to agree to try to agree to me is very nebulous and doesn't really bind the respondents to doing anything. CHAIRMAN FLEGAL: So -- well, what I -- I just want Page 48 November 29,2004 everybody to understand, since the county said this is -- they're presenting what the agreement is, they may need to make sure you both work out, and if you're agreeing to what you obviously have done, to pay these penalties if you don't comply, tie them to something specific, and then we can accept that. If they're not specific, we're not going to be able to accept this, whether you've agreed to it or not. MR. FLOOD: My understanding is -- Peter Flood, appearing on behalf of Taylor Village. My understanding is that within the 30 -- we're going to meet tomorrow at 3 :00 within the ten-day period. Following the ten-day period there's a 30-day period in which to come up with a plan to cite the violations or whatever, to bring it in with the site water management program that was originally approved by the county, which hasn't been constructed. If that is not done within 30 days, that's when the $200 a day fine starts. Now, we can -- is that what your intent -- MR. CAMPBELL: Exactly, exactly. MR. FLOOD: That's what my understanding was, that the fines start if nothing is submitted within 30 days following the ten-day meeting. And that's when the fines commence. MS. DUSEK: So are you saying that you need to submit a plan within 30 days? MR. FLOOD: That's correct. MS. DUSEK: And if it's not completed-- MR. FLOOD: Then we start getting fined. At the 31 st day if it's not submitted we get $200 a day. MS. DUSEK: So if you don't submit the plan within 30 days you're being fined $200. MR. FLOOD: That's what's my understanding. MS. DUSEK: If you don't complete it within, it looks like a 30-day period-- Page 49 November 29, 2004 MR. CAMPBELL: After acceptance. MR. FLOOD: After acceptance, it's $250 a day, goes up to 250 a day. MS. DUSEK: Then it's 250. CHAIRMAN FLEGAL: Okay. What I need to back up on is what you were -- and I've got to find -- does Taylor have permits for all this work but he just didn't do the work right, is that what you're saying? MR. CAMPBELL: Exactly. CHAIRMAN FLEGAL: Okay. My problem is, for the board, is that -- that you've cited him for some specific items in the ordinance and, you know, which none of them say submit an SDP. And now you're agreeing that if he doesn't follow the SDP submitted, he'll be violated, we can penalize him. But you didn't cite him for the SDPs. I need to tie your money to say like failure to comply with 90-41, period. Because there's three violations there. I assume those permits were issued based on the SDP. MR. CAMPBELL: Yes. Ordinance No. 91-102, amended, Section 3.3.11 refers to a requirement of having a site development plan. CHAIRMAN FLEGAL: It just says a permit won't be issued except in compliance with the approved development site plan, so -- he submitted an approved plan and he got a permit. MR. CAMPBELL: Yes, sir. CHAIRMAN FLEGAL: So he's done. What he didn't do is do what the plan said. MR. CAMPBELL: Build to the plan, yes. CHAIRMAN FLEGAL: Okay. MR. FLOOD: That's correct. CHAIRMAN FLEGAL: So he did get permits, he just didn't do -- what he asked for the permits for, he didn't do. He gave you a piece of paper and said I'm going to paint this purple and you said okay, Page 50 November 29, 2004 here's a permit and he painted it blue. So he didn't do what he told you, so -- MR. CAMPBELL: That's correct. MR. FLOOD: That's correct. CHAIRMAN FLEGAL: Okay. That's basically simplified it down. MR. FLOOD: That's exactly correct. CHAIRMAN FLEGAL: But we've got to tie the money to something specific. So now if you want both of these amounts, then you two must agree, like the $200 would be tied to Section, let's say, 3.3.11, because he violated the terms in the approved site development plan, so now I can tie that to the $200 that you want. Now, if we go down to your $300, which is all remedies must be complete within "X," I need to tie that, that you two agree that Taylor will meet the -- all the requirements of Ordinance 2002-01, Section 104.2.1.2.7 and violations of 90-41, then, because the first one is -- the $200 is for the 3.3.11, but you need to tie the other money to the others. I just -- I just don't want us to agree to something that we're not legally allowed to agree to. MR. FLOOD: If I may, if Tom will agree and Michelle, I think the easiest way is just set it at the -- if after the ten days and then after the 30 days, if we don't comply, then we're charged $250 a day straight out. I think that would probably be the easiest way, tie it into the non-compliance, if the property does not comply with the water management program as previously approved and -- it just doesn't comply with. Is that what your understanding is, Tom? MR. CAMPBELL: Yes, the Ordinance 90-10 as specified there refers to the water management plan. MR. FLOOD: So my -- way to clarify it would probably put 90-10. In the event that they don't comply with 90-10 after the 30-day Page 51 November 29, 2004 submitting of the program, they're charged $250 a day in fines. I think that's the intent. CHAIRMAN FLEGAL: Would that work for you, Jean? MS. RAWSON: That's okay. CHAIRMAN FLEGAL: Okay. I just want to keep everybody on the same playing field. MR. CAMPBELL: No, I understand. I understand. MR. FLOOD: No, we understand. CHAIRMAN FLEGAL: Okay. So the county is happy so far. Now we'll get to the respondent. MR. HEMES: I have a question, Mr. Chairman. CHAIRMAN FLEGAL: Yes, sir. MR. HEMES: Are the permits in place, are they current and valid for this work? MR. FLOOD: Yes. MR. CAMPBELL: I'll have to check. I do not know. MR. HEMES: Okay. CHAIRMAN FLEGAL: In other words, I think his concern is probably where -- we know he's in violation and he has to do something, but in doing that, does he need additional permits because the other one's expired; the SDP is -- MR. CAMPBELL: I expect to have an answer by tomorrow's meeting. CHAIRMAN FLEGAL: Okay. Because if that's -- if he has to have new permits, then he's going to have to get them, and we'll make that a part of your agreement, that anything that requires new permits to remove something or add something or whatever, then you're going to have to get them. MR. FLOOD: So the board understands, we're the successor owners. The condo association got it from the original owner in this state. And then the violation was discovered when Tom started coming Page 52 November 29, 2004 and noticing some problems. And we all discovered that it wasn't built in accordance with the water management plan. So now we're trying to address them. CHAIRMAN FLEGAL: What we want to make sure of is that even though you didn't do what the SDP said, in going back to correct that, it may require a permit, because, you know, you can't just go and say well, we're going to haul all this stuff out, and somebody's going to say excuse me, you can't take that out because you don't have a permit, and you'll be in trouble again. So you want to get that in the front. MR. FLOOD: That's correct. But I just want to advise the board, we weren't the original developers-owners. The association subsequently took it from a prior owner who dealt with Phoenix on this. CHAIRMAN FLEGAL: Okay. I'm sorry, sir, your name? MR. THOMAS: I'm Lindsey Thomas. CHAIRMAN FLEGAL: Mr. Thomas, what the board would like to know is do you agree in fact that you are in fact in violation of these citations? MR. THOMAS: Yes. CHAIRMAN FLEGAL: Okay, sir. And do you agree that you have met with the county and you're agreeing to the stipulated agreement, as we've kind of smoothed it out? MR. THOMAS: Yes. CHAIRMAN FLEGAL: All right, sir. Any other questions? MR. KRAENBRING: Just one comment. If obtaining the new permits, if that is necessary, if that presses them past the compliance date, is that going to be a problem? CHAIRMAN FLEGAL: They have the right, if that's a problem, to come back and ask us for an extension, or if fines go into effect, they have the right to come back and ask us to waive the fines because of that problem. Page 53 November 29,2004 MR. KRAENBRING: Thank you. CHAIRMAN FLEGAL: Any other questions? MS. DUSEK: I make a motion that we accept the stipulated agreement between the county and the respondent with the understanding that it has to be connected to certain zoning ordinances, and that they must get the correct permits, if needed. MR. LEFEBVRE: Second that motion. CHAIRMAN FLEGAL: Okay. Just to make sure that the stipulated agreement does contain a section where they're going to pay the operational costs to bring forth. MR. BOWIE: $650. CHAIRMAN FLEGAL: Okay. Just as long as that's part of it. So we have a motion and a second to accept the stipulated agreement between the county and the respondent. Any further questions? All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you, gentlemen. MR. FLOOD: Thank you. MR. THOMAS: Thank you. CHAIRMAN FLEGAL: Okay, we'll go back to our original case, 2004-042. There's Tony, right on time. MR. PIRES: Yes, sir, thank you. CHAIRMAN FLEGAL: Your turn, sir. Page 54 November 29, 2004 MR. PIRES: Yes, sir. If I may, I'll call my first witness, Brad Estes. And with the chair and the board's indulgence, if Mr. Estes could stand over here and if I can stand here? CHAIRMAN FLEGAL: Okay. MR. PIRES: What I'd like to do is, first matter of course, Mr. Chairman, is ask to introduce the defense packet as our -- that we filed in both the earlier time and this time into the record as part of the record in this matter. CHAIRMAN FLEGAL: Okay, as Defense Exhibit A. MS. DUSEK: I make a motion that we accept the Defense Package A. MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) MR. PIRES: What I'd also -- CHAIRMAN FLEGAL: Before we begin, besides Mr. Estes, do you have anybody else that's going to need swearing in? MR. PIRES: Possibly Mrs. Estes, so it might be best to swear them both in -- CHAIRMAN FLEGAL: Okay. Let's swear them in both first, please, Cherie. (Speakers were duly sworn.) Page 55 November 29, 2004 CHAIRMAN FLEGAL: Thank you. Yes, sir. MR. PIRES: Thank you, Mr. Chairman, thank you. Also, if I may, Mr. Chairman, I have copies of excerpts -- pertinent excerpts from the 1968 to 1974 zoning ordinance that we obtained from the county's files, and I'd like -- I have nine copies of it -- I'd like to introduce one into evidence and a copy out to each of the board members. Michelle, if you want to look at it? MS. ARNOLD: I haven't had a copy of it. MS. DUSEK: Is this an exhibit? CHAIRMAN FLEGAL: Yeah, it would be Exhibit B. MS. ARNOLD: Is this an exhibit as well? CHAIRMAN FLEGAL: Are these out of the public record, sir? MR. PIRES: Yes, sir, they are. They're out of the county's records. They're out of the public records. MS. DUSEK: I make a motion that we accept the Defense Package B into evidence. CHAIRMAN FLEGAL: Do we have a second? MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept Defense Exhibit B. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (N 0 response.) MR. PIRES: If I could ask your counsel if she could kindly Page 56 November 29, 2004 hand them to the board. CHAIRMAN FLEGAL: That would be fine. MR. PIRES: Thank you, Mr. Chairman. Court reporters are very much on the ball, as always, Mr. Chairman, asking me for all of the exhibits. And they have not yet shot any rubber bands at me to slow down, but I will try my best, Mr. Chairman and madam court reporters. Mr. Estes, if you could state your name, please. MR. ESTES: Bradley Estes. MR. PIRES: And Mr. Estes, how long have you lived in Naples and Collier County? MR. ESTES: Since 1974. MR. PIRES: And can you just give briefly your employment history or occupational history in Collier County. MR. ESTES: Sure. I've spent about 12 years in government. Started to work with the City of Naples as assistant to the city manager. Became personnel director. Then I joined Palmer Cable Vision in 1986, became general manager. Then went into a business for ourselves, my wife and I went into business for ourselves. And then I became executive director of the Greater Naples Civic Association around 1990. And then in 1996 I became general manager of the Pelican Bay Foundation, and retired in 2000, semi-retired. MR. PIRES: And currently, are you engaged in any particular profession or occupation? MR. ESTES: I'm an adjunct instructor at Barry University and then I manage our rental properties. MR. PIRES: Now, you mentioned about rental properties, how long have you been buying investment properties in the Naples area? MR. ESTES: We started our rental property investments In Page 57 November 29,2004 1979. MR. PIRES: Have you tried to be an educated investor and an informed buyer during your transactions? MR. ESTES: To some extent. My wife was more involved than I until 1996. But as a team, yes. MR. PIRES: And do you recall in 1985, if there were conversations with the then Collier County Community Development director, Missy McKim about enforcement of ordinances? MR. ESTES: My wife had that conversation. MR. PIRES: Do you recall, was that related to you as to what Missy McKim indicated? MR. ESTES: We were concerned about making sure we bought properties that were legal, and the comment from Missy McKim via my wife was that they really weren't sure what was legal back in those years because the records no longer existed. MR. PIRES: And when did you begin looking at this property on Rosemary Lane for purchase? MR. ESTES: It would be the summer of 1989. MR. PIRES: Any particular salesperson or broker that you utilized? MR. ESTES: We used a broker we -- or actually a realtor associate that we'd used for many years named John Hester from John R. Wood and Associates. MR. PIRES: And do you still utilize Mr. Hester? MR. ESTES: No, he retired a few years back. MR. PIRES: Did you find him to be credible and honest in your dealings with him? MR. ESTES: Yes, absolutely. MR. PIRES: And why did you use Mr. Hester in your transactions in July '89 dealing with the Rosemary Lane property? MR. ESTES: Because of his knowledge -- his knowledge in not only the property, but he was very well-versed in what was -- I don't Page 58 November 29, 2004 know if you would call -- he wasn't an attorney, he was an electrical engineer by -- prior to becoming a realtor, but he was very knowledgeable about property and the legalities of property. MR. PIRES: Now, who found the property on Rosemary Lane, was it you or Mr. Hester? MR. ESTES: Mr. Hester. MR. PIRES: And the listing that's in the defense packet, was that provided to you by Mr. Hester? MR. ESTES: Yes, it was. MR. PIRES: And did you make any requests of Mr. Hester with regards to representations made in the listing that's in the defense packet, and I believe in the defense packet it is item -- oh, Exhibit B. Did you ask -- make any requests of Mr. Hester with regards to the representations made in the listing? MR. ESTES: Yes, we did. MR. PIRES: And what did you ask Mr. Hester to do? MR. ESTES: We were particularly interested in the property because it was two units. And we asked him to make sure that the two units were legal. MR. PIRES: And did the listing indicate that they were two units? MR. ESTES: Yes, it did. MR. PIRES: Do you recall the reference in there, it says great investment house and guesthouse, easily rented annually. MR. ESTES: Yes. MR. PIRES: What did Mr. Hester do on your behalf as your agent? MR. ESTES: In terms of determining ifit were legal? MR. PIRES: Yes, sir. MR. ESTES: We don't know. In fact, I have no recollection of it. And we contacted John, who is retired and living in North Carolina, and he does not have a recollection about what activities or Page 59 November 29, 2004 methods he used to determine if it were legal. MR. PIRES: And what was your reason for wanting to do the due diligence? MR. ESTES: To make sure our properties were legal. To comply with the statutes and ordinances. MR. PIRES: And did the appraisal indicate that the property also had two units on it? MR. ESTES: Yes, it did. MR. PIRES: And did Mr. Hester assure you that the uses were legal at that time? MR. ESTES: I don't specifically have a recollection of what he said. I'm sure we would not have purchased the property had we not been assured it was legal. But I don't recall a conversation, specifically. MR. PIRES: And did you register the property -- upon Collier County requiring registration of the units, did you register the property? MR. ESTES: Yes, we did. MR. PIRES: Did you register it as two buildings with two units? MR. ESTES: Yes, we did. MR. PIRES: When did that occur? MR. ESTES: In approximately -- I don't remember the month. It was 1980, as soon as the ordinance was adopted and we became aware of it. MR. PIRES: Would it possibly be March of2000? MR. ESTES: That sounds appropriate. MS. ARNOLD: I would just object because we're not bringing the item with respect to rental of that -- the unit in question. That's not being discussed. MR. PIRES: I agree. But Mr. Chairman, the use of that is solely for the purpose of the county being on notice as of March of 2000, on top of all the other issues, that there were two units and two Page 60 <'-'--~'--"~""''''''''~.''-'-'''''---''-~'''---~- ...,........~ "'-. 1'1 November 29, 2004 structures on this property. CHAIRMAN FLEGAL: I don't think we have a problem with that. We just don't want to talk about the renting of it or were they allowed to be rented. MR. PIRES: No, sir. This is merely for the representation -- the county -- the same department that is enforcing this, the same department that does zoning, that does permitting, was notified that there were two units or two structures in -- CHAIRMAN FLEGAL: I don't think the two units are in question, sir, what's in question is did you have permits. Not that there was two permits, did you have permits to have whatever is sitting on the property. Okay? MR. PIRES: Okay. Thank you. After you acquired the property at 1120 Rosemary Lane, Mr. Estes, did you perform any repairs to the property? MR. ESTES: Nothing substantial. We didn't make any structural changes. MR. PIRES: Did you enlarge the drain field at any time? MR. ESTES: We -- well, I don't recall if it was enlarged. We had to install a new drain field. MR. PIRES: Did that drain field service both structures? MR. ESTES: Yes, it did. MR. PIRES: And was that in 1991? MR. ESTES: That sounds about right, yes. MR. PIRES: And I believe the testimony earlier from Ms. Crisp was that a permit was issued in 1995 to reroof the front building? MR. ESTES: That's correct. MR. PIRES: And that was issued -- pulled by you? MR. ESTES: That's correct, yes. MR. PIRES: And I believe Mr. Olney testified that he, at some time in February 2004, came out to the property and he met with you concerning certain repairs that needed to be effected? Page 61 ~o,__·,..·..__."'''~_.._''·._,."__"._ . November 29, 2004 MR. ESTES: That's correct, yes. MR. PIRES: Did you make those repairs? MR. ESTES: Yes, we did. MR. PIRES: Did you notify Mr. Olney or anybody in code enforcement that you had finalized and finished the repairs? MR. ESTES: I notified Mrs. Petrulli, his supervisor. MR. PIRES: Okay. And were the repairs made prior to the time that Ms. Crisp issued her notice of violation? MR. ESTES: Yes, they were. MR. PIRES: Did Mr. Olney indicate that he was going to issue a notice of violation for the structure not being permitted? MR. ESTES: No, he did not. MR. PIRES: Do you recall what he said at that time? MR. ESTES: That his supervisor was requesting that he do so, and he was resisting doing that because he knew there was no way we could prove that it was permitted or not permitted. MR. PIRES: Mr. Estes, did either you or Mrs. Estes, since you acquired the property in 1989, convert a shed on this property into a dwelling unit? MR. ESTES: No, we did not. MR. PIRES: Did you independently determine the utilization of this particular structure as a rental property? MR. ESTES: Could you repeat the question, please? MR. PIRES: Did you independently inquire and find out how long this structure had been used as a dwelling unit on this property, the second structure that we're talking about? MR. ESTES: No, we did not. MR. PIRES: Any indication that it had been used since the 1970's as a dwelling unit? MR. ESTES: Only from the physical features of the structure. MR. PIRES: And what are those, Mr. Estes? MR. ESTES: Well, it had electricity, it had a bathroom, a Page 62 -_."'----"..-."........-~-...,......._-_.~ November 29,2004 shower -- including a shower. MR. PIRES: And those were all present at the time you acquired the property? MR. ESTES: Yes, they were. MR. PIRES: Did you have any conversations with personnel down in the records section of Collier County Environmental Services, Community Development and Environmental Services with regards to the state of any permit research? MR. ESTES: Yes, I did. MR. PIRES: And what kind of -- who did you have a conversation with? MR. ESTES: Most frequently, with Sonia Grafton, who is a specialist there, records specialist. MR. PIRES: And how do you -- do you know how long Sonia Grafton has been employed in that particular capacity? MR. ESTES: No, I do not. MR. PIRES: Has she been there for a number of years? MR. ESTES: It appeared so from her knowledge. MR. PIRES: And what did she indicate as to the quality and status of the -- and completeness of the county's records between 1968 and 1974 as far as building permits? MR. ESTES: Difficulty in searching the records, unless you had a building permit number. MR. PIRES: Did she indicate that not all the permits were in fact on file? MR. ESTES: I don't recall her making that specific statement. MR. PIRES: Did she indicate that they were in disarray? MR. ESTES: Yes. MR. PIRES: Did you have difficulty with the county staff in the building permit section trying to ascertain what building permits may have been applicable, or building codes that were applicable between '68 and '74? Page 63 November 29, 2004 MR. ESTES: With the planning staff. MR. PIRES: How about with the building department staff? MR. ESTES: Yes. I had a visit -- my wife and I visited with the director of the building section, who indicated that they did not have the building codes for that period of time. MR. PIRES: And who was that that you met with? MR. ESTES: Jeff Kucko. Jeff Kucko. MR. PIRES: So is it fair to say that Mr. Kucko indicated that the county did not have possession of the building codes in effect between 1968 and 1974? MR. ESTES: That's what he indicated to us, yes. MR. PIRES: Did you have any suggestions or correspondence with Bill Hammond, the current building director for Collier County? MR. ESTES: Yes. I wrote him a letter -- actually, I wrote Joe Schmitt a letter asking that we be provided a copy of the building codes during that period of time so we would know what we would need to comply with if we were to address the violation as requested by the code enforcement department. MR. PIRES: And isn't it not true that Mr. Hammond wrote you back saying that a search of the records indicates that Collier County did not adopt a building code until 1973? MR. ESTES: That's what he wrote, yes. MR. PIRES: So based upon your conversation with Mr. Kucko and your correspondence with Mr. Hammond, the current building director, it appears that there was no building code in effect between 1968 and 1974 in Collier County -- 1973 in Collier County? MR. ESTES: That's correct. MR. PIRES: And so, therefore, by extension, 1969, based upon your conversation with Jeff Kucko and your correspondence with the current building director for Collier County, Bill Hammond, there was no Collier County Building Code in effect in 1969. MR. ESTES: The conversation with Mr. Kucko was that they Page 64 ~....""~---""---- November 29,2004 did not have a copy and they could not provide us a copy. The conversation with Mr. Hammond -- or the letter from Mr. Hammond indicated there was no code in existence at the time. MR. PIRES: Bear with me for a moment, Mr. Chairman. Mr. Chairman, if I may, this is a piece of correspondence that previously a copy was provided to Ms. Arnold by Bill Hammond, September 23rd of2004. I'd like to have this introduced as Exhibit C. It's a response from Mr. Hammond in response to the inquiry by Mr. Estes as to the building codes in effect. MS. DUSEK: I make a motion that we accept the Defense Package C. MR. BOWIE: Second. MS. ARNOLD: I just want to note that -- CHAIRMAN FLEGAL: We have a motion and a second to accept the Defense Exhibit C. MS. ARNOLD: I just want to note that I do have the letter but I can't recall seeing the attachments. And the cc on the letter indicates that I wasn't provided the attachments. MR. PIRES: If the board just wishes to accept the correspondence, I think that's fine, because, again, it indicates there was not a standard building code until 19 -- CHAIRMAN FLEGAL: No, we've accepted your Defense Exhibit C, that's fine. MR. PIRES: Thank you. I wasn't sure. MS. DUSEK: No, we didn't. CHAIRMAN FLEGAL: Oh, we had a motion and a second. We haven't voted on it yet. Thank you. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. Page 65 '-'----'."--..-.-.--.,.,.."..--...-- November 29, 2004 MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, we've now accepted it, so -- and we'll make note that Ms. Arnold has said she did -- has not seen the enclosures previously. MR. PIRES: Thank you, Mr. Chairman. Now, Mr. Estes, you heard the testimony of Ms. Crisp with regards to attempted meetings and items such as that. Do you feel as if you've cooperated with her in discussing this issue? MR. ESTES: Yes, absolutely. MR. PIRES: And is it also not true and correct that at many times you were acting per my guidance and legal advice to you as to how you should proceed? MR. ESTES: Yes, that's correct. MR. PIRES: So the decision as to whether or not to contact Ms. Crisp in many instances was made at my advice and guidance and direction? MR. ESTES: Yes, that's correct. MR. PIRES: Once again, with regards to your conversations with Ms. Grafton in the records section, do you recall her indicating to you on a couple of occasions that the records were not reliable from the time frame from 1959 to 1972 as far as building permits? MR. ESTES: Generally speaking, but I couldn't give specifically what she said. It was more related to being able to locate the records, because if you didn't have a building permit, there was not a reliable search system either by address or by legal description. MR. PIRES: And weren't you also advised by the property appraiser's office and other parties that building permit records for the Page 66 ._--,..-,~.-.,.._--.,-..."-,~..,,, November 29, 2004 1960's had been lost? MR. ESTES: I don't recall. I know prior to 1960 they were lost and -- some were lost or damaged in Hurricane Donna. And there was a statement made that all the property cards had to be recopied after Hurricane Donna. But I don't recall in the Sixties. Hurricane Donna was 1960. MR. PIRES: Bear with me. Mr. Chairman, if I may just have a moment. I have nothing further of Mr. Estes at this time, Mr. Chairman. CHAIRMAN FLEGAL: Mr. Estes, when did you buy this property? MR. ESTES: In the summer of 1989. CHAIRMAN FLEGAL: And you said that you have other properties. I'm assuming that you understand that when you buy a property, you as the owner are responsible to make sure that the property is in compliance with anything, not just because Joe down the street said it's in compliance, that you are the ultimate responsible authority. MR. ESTES: Yes, I understand that. CHAIRMAN FLEGAL: Okay. MR. ESTES: Through my representative, I assume. CHAIRMAN FLEGAL: As the property owner, the deed is made out to you and your wife. You are responsible. Period. You can't pass it away to somebody else. You're the person on the deed, you know. If -- the old adage that we see in movies, if the corn huckster gives you a bushel of corn and it's nice on top and all rotten in the bottom, that you didn't look on the bottom is your problem. So, same with the house, when you buy it, we assume that you look into it, not just take somebody -- buyer beware, good thing, heard of that before? Okay. Now-- Page 67 "-_.'~ November 29, 2004 MR. ESTES: I'm not sure I absolutely agree with that, but I don't want to debate it right now. We can hire representatives that I think we can rely on. So -- and these are licenses -- this was -- the two licensed realtors as well. MR. BOWIE: Well, let's just say what -- they are licensed, sir, under the Real Estate Brokerage Act. That licensure doesn't necessarily and by law does not confer on them expertise as to zoning or building code matters. That's beyond the parameters of their licensure as real estate brokers, associates or agents. CHAIRMAN FLEGAL: When you're buying something, it's you. MR. BOWIE: So that the listing broker-- MR. ESTES: All right. I'll keep that in mind, thank you. MR. BOWIE: What the listing broker represented in the MLS sheet means absolutely nothing of any kind of reliable nature. That your broker, if that broker was representing you as a buyer's agent, allegedly confirmed it also means nothing. Yes, they are representatives within their statutory capacity, but they're not representatives in this area of expertise. MR. ESTES: Okay, thank you. CHAIRMAN FLEGAL: How large is this outbuilding that we're talking about, whether it's storage or habitable building, let's call it that, because that's -- MR. ESTES: It's 207 square feet. CHAIRMAN FLEGAL: When you purchased the property, did you ask any questions of the previous owner about the property? MR. ESTES: No, there was no contact with the previous owner. CHAIRMAN FLEGAL: Okay. Any other questions from board members? MS. DUSEK: Mr. Estes, did you ask of your real estate broker if he knew whether there were permits for both buildings? MR. ESTES: All I said is, I vaguely recall is to make sure that Page 68 __"__._,_k......"..._._._~__.,__ November 29, 2004 the structures were legal. MS. DUSEK: And you asked him to check to see if those structures were legal? MR. ESTES: Yes. I asked him to assure us that-- MS. DUSEK: But you don't recall any conversation or paperwork to prove that? MR. ESTES: No. It's been 15 years ago. I just don't recall. Sorry . MR. HEMES: Mr. Estes, were both these properties rented when you bought them? MR. ESTES: No-- CHAIRMAN FLEGAL: We're not into rentals, unfortunately. MR. HEMES: I'm only trying to establish the credibility of why he bought the property. CHAIRMAN FLEGAL: Well, it -- the rental problem is going to come at our next meeting, so let's shy away from that so we don't muddy the water. The fact that there's two properties that could be habitable is terrific, but if they were habitable we're not interested in. That they could be is the main interest, okay, till the next time. But any other question is great. Yes, sir, Rich. MR. KRAENBRING: My question was similar. Was it vacant or occupied? CHAIRMAN FLEGAL: Now, we just -- we need to shy away from if -- anything to do with rental. We'll get to that I'm sure next time around. MS. ARNOLD: Can I ask a question whether or not it was occupied? I mean, because what we're trying to establish is that it's a habitable structure, it's being used as a habitable structure, not whether or not there was funds being exchanged. CHAIRMAN FLEGAL: You can ask if it was habitable. I don't Page 69 -,.--,---. November 29, 2004 know whether it was or wasn't. He may -- MR. BOWIE: I think that is a legitimate distinction. CHAIRMAN FLEGAL: And he may have upgraded it, so sure. MR. BOWIE: Habitability has nothing to do with rented for profit. CHAIRMAN FLEGAL: Right. He bought it for some reason. Maybe it was empty and he's made all the changes. I think he said he hadn't touched it, so that would tell me he hasn't -- MR. ESTES: We have not structurally done anything to it. MS. ARNOLD: Was the guesthouse habitable? MR. ESTES: Should I answer? MS. ARNOLD: Inhabited-- MR. PIRES: Well, I guess my question is characterizing it as a guesthouse, characterized as a secondary residence, if you want to. MS. ARNOLD: The structure in question, was it inhabited when you purchased it? MR. ESTES: Not exactly when we purchased it, no. CHAIRMAN FLEGAL: I'm sorry, I didn't pay attention to the pictures. Does this structure have windows in it? MR. ESTES: Yes, it does. CHAIRMAN FLEGAL: And it has a door? MR. ESTES: Yes. CHAIRMAN FLEGAL: Are the windows and doors, do they have -- a door, I assume. Does the window, windows or door, do they have screens on them? MR. ESTES: Yes, they do. CHAIRMAN FLEGAL: Okay. MR. ESTES: With the exception of one has a window air conditioner in it and the window has been disabled, and it does not have a screen on it. CHAIRMAN FLEGAL: Is that something you did or it was that Page 70 ~·'_'~_~'.""n__.___.__o_._,_. November 29, 2004 way when you brought it or -- MR. ESTES: I think we put it in after we bought it, but I don't recall. CHAIRMAN FLEGAL: Okay. And the same with the screen door, is that something you did or it was on there -- MR. ESTES: No, the screens were there when we bought it. CHAIRMAN FLEGAL: Thank you. Any other questions from the board? MS. ARNOLD: I have a couple of questions, if I -- CHAIRMAN FLEGAL: Yes, ma'am. MS. ARNOLD: Mr. Estes, can you -- what I'm looking at, for the board's information, is a part of the exhibit submitted by the respondent. And it's the second to the last page, as there are no page numbers on it. It's a copy of the property appraiser's card for the parent parcel. Mr. Estes, can you tell me what this language says down here? MR. ESTES: Buildings one and two transferred to Parcel 26, looks like FG-AS 82070. MS. ARNOLD: Is your parcel No. 26? MR. ESTES : Yes, it is. MS. ARNOLD: Okay. And what I'm showing is -- Mr. Estes now is Page 12 of the county's exhibit, which is also a property card for Parcel 26; is that correct? MR. ESTES: Yes. MS. ARNOLD: Okay. Can you tell me what these two buildings represent? Is this building one, and I'm pointing to the structure that has measurements 24 by -- has eight, eight and a 19. And also has an appendage to one side of 28 by, I think it's ten. I'm not really sure if it's -- MR. ESTES: And your question is? I'm sorry. MS. ARNOLD: Can you tell me what this parcel is represented and this parce -- these two structures? There's a parcel -- a structure Page 71 ~'^_~___"_W.___.._,,~.__.._. "..~-""",,- -_.,-------- November 29, 2004 behind it that as been X'd out. Are those structures one and two that were transferred to Parcel 26? MR. ESTES: Actually, I don't really know. It was confusing to me, actually, what did happen. So I have no -- I mean, I would just be speculating. MS. ARNOLD: Is there a number one on that larger structure? MR. ESTES: Yes. And I know that appears to be the front house -- front structure. MS. ARNOLD: Is there a number two noting for this structure? MR. ESTES: Yes, there is. MS. ARNOLD: Is there a number three noting for the smaller structure? MR. ESTES: It appears to be three, but I'm not sure. MS. ARNOLD: Okay. And that is noting that it was -- they're added to the tax roll in 1973? MR. ESTES: That's correct. MS. ARNOLD: Can you tell me what the date is on this particular -- the top entry, which is on Page 13. MR. ESTES: 12/10/1969. MS. ARNOLD: With your knowledge of, you know, government and those types of things, would you interpret that as the parcel No. 26 being created in that particular year and date? MR. ESTES: Well, the dates don't compare, though, because the date on the transfer was 8/20/70, and this date is 12/10/69. So I don't know, you know -- I'm confused. MS. ARNOLD: Okay. So the transfer, you believe it occurred in 1970? MR. ESTES: That's what -- yeah. MS. ARNOLD: Or either between 1969, December 10th, 1969 and 8/20/1970. If it was done in 1970, how many structures were on that parcel that was transferred? Page 72 --'__^"··..·._.~.M_____."."._",,.____." November 29, 2004 MR. ESTES: I don't know. I'm sorry, I just __ MS. ARNOLD: How many structures are drawn on this map? MR. ESTES: It appears that there were two structures transferred. MS. ARNOLD: Okay. And they're structures, building-- MR. ESTES: One and two, right, yeah. MS. ARNOLD: And then on your property card, how many structures are there? MR. ESTES: There are three, and one is crossed out, with '95 removed -- or excuse me, 1985 removed. MS. ARNOLD: Okay. So it looks like there were at least two structures on the parcel between '69 and '70, based on when the transfer was made. MR. ESTES: Two structures appear to be transferred. MS. ARNOLD: Okay. And then sometime in '85, there were three structures, because this building was eliminated and __ MR. ESTES: Right. You know, I -- I'm not sure what that other structure is, because that's -- actually would be on the adjacent property . MS. ARNOLD: I'm just looking at what's on the-- MR. ESTES: I didn't understand it when I saw it, too, so sorry. MS. DUSEK: Michelle, while you're standing there, your property card says 1120 Rosemary and his property card says 1118. The statement of violation says the -- MS. ARNOLD: They're two separate parcels. The property card that was included in their packet is for the parent parcel. And the parent parcel was then subdivided later on to include Parcel 26, which is his parcel. There are two different addresses that exist right now. I just have one other question. Mr. Estes, what is -- and I'm reading, it's kind of the center of the page. It's talking about the buildings. It's the first building was referenced as a -- MR. ESTES: As RES with a colon behind it. Page 73 _._. November 29, 2004 MS. ARNOLD: And there's another reference underneath that is stricken through, what is that? MR. ESTES: GAR. MS. ARNOLD: Could one assume that what is crossed out there is also maybe what -- that second building, since they're on the second line? It's -- this copy's kind of difficult to see, but as in yours, it's one, two, and three, four. One, two, three, four. On Line 3, what does it indicate? MR. ESTES: Storage. MS. ARNOLD: Okay. And could one assume that building number three was a storage? MR. PIRES: I would object as to the assumptions, the card speaks for itself. And then as to what conversations Mr. Estes may have had with the property appraisers would be appropriate, but I don't think he's in a position to assume and testify to assumptions. MS. ARNOLD: Well, I'm just asking his -- his opinion. MR. PIRES: Objection again. Not qualified as to __ MS. ARNOLD: Okay. Mr. Estes, on line number three, what does that say? MR. ESTES: Storage. MS. ARNOLD: Is there a structure with a number three on it in this property card? MR. ESTES: Yes, there is. MS. ARNOLD: Okay, thank you. MR. PIRES: Mr. Chairman, if I may briefly, if Mrs. Arnold is done? CHAIRMAN FLEGAL: Michelle, you have any more questions? MS. ARNOLD: No, sir. MR. PIRES: Thank you. Mr. Estes, you've had conversations with the property appraiser's Page 74 --_.,-..__.__._,,~-~- November 29, 2004 office concerning certain aspects of these cards? MR. ESTES: Yes, I did. MR. PIRES: And did they indicate to you what it meant by the statement "buildings transferred"? Does that mean they were physically transferred from one lot to another or just transferred from one property appraiser's card to another card? MR. ESTES: The latter. Transferred one parcel number to another parcel number. MR. PIRES: No further questions. CHAIRMAN FLEGAL: Mr. Estes, this structure --let me call it that for the time being, this roughly 10 by 20, is that what it is? MR. ESTES: Yes, sir. CHAIRMAN FLEGAL: And is it one large room, or how is it broken down inside? MR. ESTES: It's one room and a bathroom. And then there's also an enclosed closet. CHAIRMAN FLEGAL: Okay. And it's kind of like a, for lack of a better word to say it, like an efficiency apartment, it's just one big room? Does it have a kitchen area in it or anything? MR. ESTES: There's no kitchen. CHAIRMAN FLEGAL: Okay. It's just a sleeping room with a bathroom? MR. ESTES: Sleeping room with a bathroom and a closet. CHAIRMAN FLEGAL: Okay. Any other questions for Mr. Estes? Thank you, sir. MR. PIRES: Sir, just a moment. Maybe we can rest. Just one or two more questions of Mr. Estes, if I may. Mr. Estes, I guess just to sum up, the sum and substance of your conversations with the county staff responsible for maintaining the county records dealing with permits, did they indicate to you their position as to the completeness or incompleteness of the records for Page 75 _"....._·_u,___........'___.. _. .._....__...._~ November 29, 2004 the time period of 1968 to 1972? MR. ESTES: The incompleteness related to me being able to search the county building records based on anything other than ownership. And the ownership, as you can tell, based on -- there were multiple ownerships based on multiple parcels. MR. PIRES: And it was difficult, if not impossible to -- it was very difficult to do a permitting search back __ MR. ESTES: That's correct. MR. PIRES: -- to find the records between '68 and '72? MR. ESTES: That's correct. MR. PIRES: And did the staff acknowledge the difficulty of that permit search? MR. ESTES: Yes, they did. MR. PIRES: And that was Sonia Grafton? MR. ESTES: Among others, yes. MR. PIRES: And who else? MR. ESTES: I don't recall the names. There were three or four people that helped me over the period of time that I was trying to find the building permit. MR. PIRES: Thank you very much. MS. ARNOLD: Can I ask a question. Mr. Estes, you indicated that there is no kitchen in the structure? MR. ESTES: That's correct. MS. ARNOLD: In -- Mr. Pires indicated, or introduced some excerpts from the zoning showing definitions. I have one of those pages for residence. May I have Mr. Estes read that? MR. PIRES: What page are you at? MS. ARNOLD: Page-- MR. ESTES: It's Page 12. MR. PIRES: I don't believe that's been introduced into evidence. MS. ARNOLD: Excuse me. Page 76 November 29, 2004 MR. PIRES: I don't believe that was part of my exhibit. MS. ARNOLD: No. I'm asking him to read that right now, and MR. PIRES: But it's not in evidence; is that correct? CHAIRMAN FLEGAL: Is it something that is in evidence or what is it? MS. ARNOLD: We can enter it into evidence, just as he's done today, and make copies, present it to him. I'm just asking __ CHAIRMAN FLEGAL: Okay. If you want him to read something it needs -- MR. BOWIE: Or just put it on the overhead. CHAIRMAN FLEGAL: Yeah. If you want to introduce it, then we all need to know what it is. If you're going to ask him to read something, you need to get it submitted, so that everybody knows and is reading from the same page and -- tell us where it is and where it came from. MS. ARNOLD: It's the zoning document, the zoning code as indicated, revised August 31 st, 1971. It's the definitions section of that zoning code. I'm just showing you, it's Page 12. And the definition that I'm wanting him to read is residence. MR. BOWIE: Do we have to accept this as a -- CHAIRMAN FLEGAL: If they want to submit it, it will be their Exhibit C. MS. DUSEK: I make a motion that we accept the county's Exhibit C. MR. BOWIE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's Exhibit C. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. Page 77 -~._"'--"'-""'''~"''''"~'~ November 29, 2004 MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Proceed. MS. ARNOLD: He'll just have to read it. MR. ESTES: Eighty-six. Residence, single-family dwelling or a dwelling unit in a multiple-family dwelling which contains sleeping, bathroom, food, refrigeration, cooking and dining facilities. MS. ARNOLD: So is it your testimony that this is a secondary residence, the ten by 20 structure that we're bringing before the board? MR. ESTES: It's an accessory structure. MS. ARNOLD: Is it a secondary residence? MR. ESTES: You know, that's a legal determination. I-- whether a secondary structure in a -- is also an accessory structure or vice versa, I'd have to defer to -- to, you know, my legal counsel. MS. ARNOLD: Did your legal counsel indicate to the board today that this was a secondary residence? MR. ESTES: Frankly, I don't recall, exactly. MR. PIRES: I did. MR. ESTES: Okay. MR. PIRES: Yes, sir. MR. ESTES: I believe him. MS. ARNOLD: Does the structure in question meet the definition of a residence with sleeping, bathroom, food, refrigeration, cooking facilities? MR. ESTES: It meets the definition of an accessory structure, and if you want -- if we were to refer to that as a secondary reference (sic) then I would say no, but it meets the definition of a secondary __ of an accessory structure. MS. ARNOLD: Okay, thank you. MR. PIRES: If I may, Mr. Estes, does that unit have a Page 78 -''''-'_.~.__.._.....~.,- '-"~'-'''--'''''''" November 29, 2004 refrigerator? MR. ESTES: Yes, it does. MR. PIRES: Does it have a microwave for cooking? MR. ESTES: It has at times, yes. MR. PIRES: Okay. So it does have food refrigeration facilities? MR. ESTES: Yes, it does. MR. PIRES: It does have -- there is occupied cooking facilities? MR. ESTES: Yes. MR. PIRES: And also, a person can dine in there; is that correct? MR. ESTES: Yeah, we had a dining table in there. MR. PIRES: So it does meet the definition of a residence; is that not correct? MR. ESTES: Yes, it does, based on those criteria. MR. PIRES: Thank you. CHAIRMAN FLEGAL: Any other questions for Mr. Estes? MS. ARNOLD: No. CHAIRMAN FLEGAL: Thank you, sir. MR. ESTES: Okay. Thank you. CHAIRMAN FLEGAL: Mr. Pires, anything else? MR. PIRES: Nothing further at this time. CHAIRMAN FLEGAL: Okay. Board have any questions for any of the witnesses that have been up here before? MS. DUSEK: Mr. Pires -- is that -- did I pronounce it correctly? MR. PIRES: It's Pires, but I've been called Pines, Pirez -- Pires, Perez. MS. DUSEK: All right. MR. PIRES: If it begins with a P, ends sort of with an S, I'll answer to it. Thank you. MS. DUSEK: In your Exhibit B, the zoning regulations. MR. PIRES: Yes, ma'am. MS. DUSEK: What was the purpose in submitting this? Page 79 ._M.____._._._._._^.'.."..._'"__..''_..'" November 29, 2004 MR. PIRES: The purpose, ma'am, was to show that as to the Page 46, if I could take you to that, at the bottom, which is a carry-over from Page 41 -- Page 45. Page 45 begins Section 11.8, dealing with the MF -1, one and two-family residential district. And that's the district that I believe it's uncontroverted that this property was zoned between 1968 and 1974. In -- as far as the accessory uses, if you go down to Section 11.8(2)(b )(1) Page 45, accessory uses include accessory uses and structures including private garages. Then the other page, which is the first page, there's a definition on Page 2, actually, it's the second page, accessory use, building or structure -- it's Page 2 of the attachment at the bottom -- an accessory use, building or structure is a secondary residence, garage or other building or structure on a lot or parcel. So that by virtue of accessory uses and structures includes a secondary residence, it's our contention a secondary residence was an allowable use between 1968 and 1974. Secondarily, what's important about Page 46, if you compare the font size, style and type, this is not Rathergate, by the way, so there's no Texas Air National Guard records here, but this is the best record we have as to what was in existence as of April 11 th, 1972 and December 12th of 1972. That's what's typed at the top. So that Page 46 reflects -- and it's a snapshot in time between April 11 th, 72, December 12th, 72, and then 1974. Because you heard the testimony from Ms. Crisp and Ms. Soter that this ordinance was the zoning ordinance between October, '68 and October, '74. We have no proof, no evidence, no testimony, as to what the minimum yards were, what the minimum floor area of the structures were between October, '68 and April of 1972. That page, I've asked for that page to be produced, and it has not. Then you have the testimony as to this building was more likely Page 80 November 29, 2004 located on the property in 1969 because it was noticed by the property appraiser in 1972. They did drive-by's every three years. I believe Ms. Crisp testified that 1969 was a fair statement as to it's being located and placed on this property. I know that was kind of long-winded, but that's why you have that attachment. CHAIRMAN FLEGAL: Okay-- MS. DUSEK: Well, I -- just to follow up on that, excuse me. MR. PIRES: Yes, ma'am. MS. DUSEK: Are you accepting this as what the zoning regulations were at that time, '68, '69, '70, '72? MR. PIRES: Except for Page 46, because Page 46 __ CHAIRMAN FLEGAL: Because of the type style. MR. PIRES: Yeah, and -- no, and the top. The top specifically says revised April, '72 and amended December, '72. It's very specific. And I think Ms. Soter said all or portions of the page may have been changed. They may have renumbered other sections and ran over. We don't know. And because of that, we don't know what was in existence between October 8th of '68 and between April 11th of '72, and this building was placed there in '69. CHAIRMAN FLEGAL: Okay. I-- MS. ARNOLD: And -- go ahead. Go ahead. I was just going to -- MR. PIRES: And I guess the reason for it is the county has to prove their case by substantial competent evidence. It has to be substantial, and it has to be competent, and there is neither one, we believe, as to what the criteria were between '68 and April of '72 as to the -- I'm sorry. CHAIRMAN FLEGAL: I think a reasonable person would look at this document, and Page 46 is a revised page that they amended this document, because if you look at the cover page, which says zoning regulations, provides a list of the Board of County Commissioners, if Page 81 "--'-'~~--'-'-"-~' ......"._--,-.-......." November 29, 2004 you look at the type style, it matches Page 46. It does not match Pages 2 through 45. I.e., if you pick out a small "A" in David, it is not the same as a small "A" on Page 2, but it is the same as a small "A" on Page 46. So I think a reasonable person can assume that these regulations were amended on that date, because they also probably had a new Board of County Commissioners, and that's why there's a new cover page. So I'm kind of accepting that yes, reasonably, it's the '68 regs changed by that one page. I think that would be a reasonable definition, based on the cover page and the last page. I understand they're different type styles, but that's my analogy, because the cover page and the last page are typed, I think, on the same typewriter, or at least style typewriter, let me put it that way. MS. ARNOLD: Mr. Chairman, we believe that we have the information that indicates whether or not that particular section was amended, and we provided that to Mr. Pires this morning when we received it. And if it helps, we'll enter that into the record, and what -- what it's -- what is being provided is a copy of the minutes that specifically says based on the date noted at the top of the page that Mr. Pires did not accept, what was amended by the board. And it did not include that section of the zoning ordinance. MR. PIRES: It also does not reflect that that page was amended or that section was amended, so -- back at that time. And there are no minutes for December, '72. Yet the document itself contains that reference. I think that's the best evidence of what occurred on those two dates. CHAIRMAN FLEGAL: You both can do whatever you'd like and we'll accept whatever you want to submit to us. I think the note above Page 46 is self-explanatory, and in my own mind I've accepted it that they revised the '68 in '72. I don't have a problem with that. Page 82 .....-.------ November 29, 2004 That's the only page that's changed. So I can live with that. MR. PIRES: If she wants to admit the minutes, I have no objection, they're part of the public record. CHAIRMAN FLEGAL: So whatever you'd like to submit you can submit them and we'll accept them. MS. ARNOLD: Sure. MS. CRISP: Okay. Would you like me to go over them for you? CHAIRMAN FLEGAL: If you're going to submit them, we'll read them when you get them -- you know, if that's what you want to do. MS. CRISP: Okay. Because, as you said, any reasonable person, when we see that these pages have been added, obviously it would have to change page numbers. MR. PIRES: Mr. Chairman, I think the minutes speak for themselves. CHAIRMAN FLEGAL: Okay. That's fine. Don't have a problem. If you want to submit something, tell us what it is and __ MS. CRISP: What these are, are the minutes in the Board of County Commissioners meetings which amended some of the ordinance dealing with this 1968 zoning ordinance. The first one that I'll go over with you, and I'll put it over here on the -- MR. PIRES: Mr. Chairman, I object there -- once again, I think the minutes reflect what they reflect at the time. And I think if the board can read what they say, and they say -- CHAIRMAN FLEGAL: You don't have to tell us what they say . We'll read them. And don't try to interpret them for us, let us read what the words are ourselves. MS. CRISP: That's fine. Absolutely. I have a copy for you, so Page 83 November 29, 2004 MR. PIRES: I have another copy I can-- CHAIRMAN FLEGAL: That's all right. We'll get them submitted and we'll get copies made for everybody. This will be your Exhibit D. MS. DUSEK: I make a motion that we accept the county's Exhibit D. MR. HEMES: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's Exhibit D. All in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. And we'll all get copies of those minutes, which mayor may not help us. Okay, any other questions from anybody? Are we done? Thank you both. At this time, we'll close the public hearings, and the board will deliberate as to is there in fact a violation, which is our first order of business. MS. DUSEK: I make a motion that in the case of the Board of County Commissioners versus Brad and Phyllis D. Estes, in CEB Case No. 2004-042, that a violation does exist. The violation is of Ordinance No. 91-102, as amended, of the Collier County Land Development Code, Section 2.6.1, and Section 106.1.2 of Ordinance No. 2002-01 of the Florida Building Code. Page 84 --'-~'.'-""-'--~"_.._".,,-- November 29, 2004 Description of violation: An unpermitted shed converted into a habitable space without first obtaining the authorization of a Collier County building permit and having all of its required inspections and receiving a certificate of completion. CHAIRMAN FLEGAL: We have a motion that in fact a violation exists. Is there a second or a discussion? MR. PONTE: Well, I'd like to open it up to discussion. CHAIRMAN FLEGAL: That's fine, sir. MR. PONTE: Because I don't feel that after three hours of testimony from both sides, that the county has proven its case to me that a violation exists. So I just can't go along with that as a finding. MS. DUSEK: They were cited for an unpermitted structure. MR. PONTE: That's correct. MS. DUSEK: And there are no permits. And even, as I had asked earlier, would they be able to get a permit, and the answer is no. And it doesn't matter whether it was 1969, '70 or 2004. MR. PONTE: Well, I think it does matter. And the fact that the records, the county records are very incomplete, I think in this period of time raises questions. And the questions have not been answered. MS. DUSEK: Well, if you look at what was submitted by the defense package, and even though they do not agree on Page 46, it's an amended zoning regulation, and if you look at nothing else but the square footage, then you would say they could not get a permit. It has to be -- this one says 600 square feet. MR. PONTE: I think what was going on historically at that time is of great importance here. And I just wonder whether the county was even issuing permits in 1968. Nothing has been proven. It's all speculative. MR. BOWIE: We don't as yet have a second even for the motion. CHAIRMAN FLEGAL: Right. I think what we're trying to do is discuss to see if the motion's going forward. Page 85 November 29, 2004 I'm on the side of George from the standpoint that the zoning is for a principal structure, which this is not, this is a secondary structure, be it at that time called -- I don't know, workshop, whatever. We don't actually know when or who did what to it other than Mr. Estes didn't put the plumbing and everything in. So we have to assume the original owner did. But if I look at the Defense Exhibit C, which is the letter from Mr. Hammond, the building director, and he submitted county Ordinance 73-02, which he says was adopted at the time, and I read through the requirements of a -- I'll say for a -- a habitable room, the testimony that Mr. Estes gave me on the size of that structure, that it had a sink, a toilet, a shower, that it has the square footage, if I compare that with this 73-02 ordinance that was accepted at the time, since they didn't have what we call now the land development code, I find the structure meets all this. It's got everything it's supposed to have. It had the screens on it. Yes, they took it out to put a window air conditioner on it, so I understand that, you can't put a screen back up. It is hooked up to the drain field and septic tank. It meets the size requirements from this 1960 -- or 1972, I guess, Ordinance 73, so -- I didn't read the last page to see what day it was adopted, but it said that this is based on the requirements from further back. I'm having a -- difficulty saying that they didn't have a permit back then, because sufficient time has come and gone that maybe permits got lost, maybe the county isn't required to keep them that long, so on and so forth. So there is, at least in my mind, reasonable doubt that these people aren't in compliance, when I look at this document. From a zoning standpoint, the building could be there. Then when I look at the building code, for lack of a better word to call it, it meets what's in there. So I'm having a real hard time saying that Page 86 ----..., November 29,2004 they're not in compliance, because we can't find something in a record. MS. DUSEK: If I remember, I believe it was Mr. Estes' testimony, that when he went to inquire about a building permit, they said if they had a permit number, then they could research back, but without a permit number, they could not. So it's saying to me that there were permits back at that time. And if you did have a permit, you would have the number and they would be able to research it. So-- CHAIRMAN FLEGAL: I don't know that I agree with that, because when we all buy homes, unless we have it built, I'm sure none of us have the building permit from that house when it was built in 19 -- whether it's '72, '82, '92. It's not there. We just buy a home and say thank you. We don't say oh, before I sign this, you need to give me the building permit. So yes, I agree, if you have a building permit number, it's probably easier to find. The fact that these people don't have it doesn't mean there wasn't one issued. So I'm having a little problem there. MS. DUSEK: Well, it would seem to me -- well, I don't know, maybe this is conj ecture on my part, that with an address, perhaps they would be able to research and find the permit number if there in fact was a permit. CHAIRMAN FLEGAL: What if after "X" years the county disposed of records? I mean, like -- MS. DUSEK: Well, we can always use that. I mean, if you're on -- if you're defending yourself, yes, you can use that. So-- CHAIRMAN FLEGAL: Okay. But we, when we're trying to find somebody guilty, are we just supposed to forget that that's a possibility? MR. BOWIE: I suppose -- CHAIRMAN FLEGAL: I mean, if the IRS came to me today and said where's my tax returns for 1972, I don't have them. I mean, I did have them, but 72's come and gone. I got rid of them all. Page 87 "--- _._--_...._,..._,~.._. November 29, 2004 MS. DUSEK: Again, if you look at the zoning regulations for that time, this does not meet the zoning regulations. CHAIRMAN FLEGAL: Okay, which section? You said the 600 feet, but that's for the principal structure, and this isn't the principal structure. So that's where I'm having the problem. MS. DUSEK: Well, in-- CHAIRMAN FLEGAL: Item seven. MS. DUSEK: -- the testimony given by Cheryl, and I'm not so sure that we have that in our package, and it was the amended zoning regulation which was amended in 1972, and I believe that was between 500 and 750 square feet, and this clearly has been 200 square feet from the get-go. So perhaps whoever owned the place prior to that put it on without a building permit and they had the requirements then for that structure and they did not follow those requirements. MR. BOWIE: I tend to concur on that concern. I don't see where there was ever a period of time under any of the various iterations of the zoning ordinance that we've heard about today where permits could have even theoretically been granted for this type of thing to this structure in this particular location on this particular lot. Even theoretically. So the idea that it could potentially have been permits that may in the passage of time have gotten misplaced, lost, destroyed, whatever, I don't see where theoretically under the zoning ordinances that existed going back in the chain of history, where even theoretically such permits could have been issued. CHAIRMAN FLEGAL: I guess where I'm losing there is in looking at the zoning ordinance which was submitted to us by Mr. Pires -- and I understand what Cheryl said -- the only thing I see about 500 square feet is for a garage. A guesthouse has no size associated to it. It just tells what it is. An accessory building doesn't have any size associated with it. Page 88 --'-'~'"'"--~"-"-""'----'~ -....<-----~ - November 29, 2004 The only sizes I see in this zoning from 1968, as amended in 1972, are the minimum floor area of a principal structure, one-story, 600 feet, two-story, 800 feet. Then you go down to MF -1, one and two-family districts, it doesn't give sizes until you get back to the amendment in '72 which again talks about the floor area of a principal structure, which is a single- family dwelling, 800 square feet. A two-family dwelling, to me two- family dwellings are units that, like a duplex, they're connected. It's not one sitting here and one sitting "X" feet away -- 500 square feet per unit. So I'm having a problem. MS. DUSEK: Well, I can understand why you're having a problem, because we don't have that printed material in front of us. We have the printed material that the respondent gave us. It might not be conclusive in showing what an accessory at that time the requirements were. But we did have testimony stating what those requirements were. CHAIRMAN FLEGAL: Okay, but -- MS. DUSEK: And as Ray said, you couldn't have gotten a permit for it because it did not meet the setbacks, it does not meet the square footage. Whether it was a habitable or just an accessory building. CHAIRMAN FLEGAL: Well, I guess where I'm confused is, yes, a lady said something in testimony, but you're reading the zoning regulations from that era, so now that you can read the printed word, why would you doubt the printed word. MS. DUSEK: She was reading the printed word. CHAIRMAN FLEGAL: No, but she didn't submit it to us. MS. ARNOLD: You also have that in the submittal that Mr. Pires provide you, on Page 19, with Paragraph -- Section 5.7. CHAIRMAN FLEGAL: Page 19 of what? MS. ARNOLD: Exhibit, I don't know which exhibit it was -- B? It tells you what the setback requirements are of an accessory Page 89 ~-,-.- ""'~->"',,-.,."~~ "I' -..~....-.__.."-_..-_.~- November 29, 2004 structure, it has to be the same as the principal structure or five feet on the side, whichever is greater. And the principal structure is 20 feet. MR. PIRES: Mr. Chairman, may I -- I guess I understood the public hearing was closed but now the code enforcement staff is __ CHAIRMAN FLEGAL: Well, she's just telling us which page to look at, that's -- MR. PIRES: I don't think that's -- I could make a lot of arguments about what you're talking about is testimony, too, but. MS. ARNOLD: I was just saying that they -- they have the information that they didn't think that they had. CHAIRMAN FLEGAL: Okay. I'm reading accessory structure, so -- and I can't remember every word that Cheryl said, and -- I guess we could dig out her testimony. But I'm reading accessory structure as it can't be two-and-a-half stories in height. We know this isn't two-and-a-half stories. It can't cover more than 30 percent of the rear yard. Doesn't cover more than 30 percent, because it's only 200 square feet. Has at least five feet from the side lot lines. If I remember correctly, it is more than five feet. Accessory structure shall be located at least ten feet from any other structure. There I'm probably -- don't remember whether she said it was 10- foot from the main house, main structure or not. So that's the requirements. Now, if it meets all those, then it's okay. So refresh my memory if I missed what she actually told us. MS. DUSEK: Well, from what I remember, and I can remember the square footage, she said 500 to 750 square feet. Now, the fact that we don't have -- CHAIRMAN FLEGAL: Okay, excuse me -- let me ask you one question right there. We're talking about the location. The square footage, I don't find in this document for the accessory structure, so I'm not concerned Page 90 ,..~,~=.._-","~,,...."-..~,, November 29, 2004 about that. MS. DUSEK: Let me just finish. If -- because we don't have what she was reading out of a manual, a copy of that, I guess what I'm gathering from you is that we just discard that testimony. And I can't do that. CHAIRMAN FLEGAL: Well, it's testimony, but I'm reading a document that's evidence that says the location of the structure can be this. So if it meets this, it's in the right zoning area. The zoning thing that I'm -- that's in front of me, that's submitted as evidence, doesn't show anything about 500 square feet other than principal structures, and this isn't, so -- MS. DUSEK: Well, I don't know what Page 20 and -- through 24 show. CHAIRMAN FLEGAL: Well, it wasn't submitted as evidence, so. MS. DUSEK: So we don't know. CHAIRMAN FLEGAL: I don't know what she physically was reading out of, since they didn't submit it. But then when I go to the actual building code and read does the structure have everything in it it's supposed to have, it has it. MS. DUSEK: Not all the pages are here. CHAIRMAN FLEGAL: In this letter, Defense Exhibit C, you know, the part that describes what a building has to have in it, I guess for a lack of a better word to say that, is fine. So anyway, that's where I'm looking at. So I guess from that standpoint, I'm with George. But anyway, your motion is on the floor. Any other discussion about it? And does anyone want to second it, that in fact there is a violation? MR. BOWIE: For the reasons I stated, I'll second the motion. CHAIRMAN FLEGAL: Okay. We have a motion and a Page 91 November 29, 2004 second. Any further discussion about the fact that there is a violation? (No response.) CHAIRMAN FLEGAL: Ifnone, all those in favor of the motion, signify by saying aye. MR. HEMES: Aye. MR. LEFEBVRE: Aye. MR. KRAENBRING: Aye. MS. DUSEK: Aye. MR. BOWIE: Aye. CHAIRMAN FLEGAL: To make sure, raise your hands, please. One, two, three four. Okay, four. All those opposed-- MS. ARNOLD: Five. CHAIRMAN FLEGAL: Five? Okay. All those opposed? MR. PONTE: Opposed. CHAIRMAN FLEGAL: Opposed. Two. Five to two. Motion carries. Okay, now, order of the board. MR. BOWIE: I'd like to move that in the Case No. 2004-042, Board of County Commissioners versus Brad and Phyllis Ellis ( sic) __ CHAIRMAN FLEGAL: Estes. MR. BOWIE: That code board order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by either obtaining a building permit for the described structure and its contents and all inspections through certificate of occupancy from 60 days from the date of this hearing, or a fine of $100 per day will be imposed for each day the violation continues. Or alternatively, the respondent must restore the described structure to a purely storage use and remove all unpermitted improvements allowing for residential habitability of the structure, through all required inspections, and obtain certificate of completion within 45 days from the date of this hearing, or a fine of $100 per day Page 92 "--"-~~"" November 29, 2004 will be imposed for each day the violation continues. The respondent must notify code enforcement that the violation has been abated and request the inspector come and perform the site inspection to confirm it. MS. DUSEK: Ray, I'd like to make some changes to that. Or suggest some changes. And one is I'd like to see the 100 go to $50 per day. And on the 45 days, I'd like to keep that consistent with 60 days. I don't believe that this was a problem that Mr. and Mrs. Estes knowingly went into. MR. BOWIE: No. MS. DUSEK: And I think that they will work diligently to take care of whatever has to be done and it's -- MR. BOWIE: So your suggestion is that with either alternative it be a 60-day period, and for either alternative the fine would be $50 rather than $100 per day. MS. DUSEK: That's correct. MR. BOWIE: I concur with that. CHAIRMAN FLEGAL: Okay, we have a motion on the floor. Do I hear a second? MS. DUSEK: Second. CHAIRMAN FLEGAL: We have a motion and a second. All those if favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Those opposed? Opposed. Six to one. We're done. MR. PIRES: Thank you, Mr. Chairman. Page 93 _".____._~_.." w. .____' _._._,,_" November 29, 2004 CHAIRMAN FLEGAL: Next case, 2004-046. MR. BONANNO: The county has previously submitted a packet of information designated Exhibit A. We request that that be entered into evidence at this time, please. MR. HEMES: I'll move we accept Exhibit A. MR. LEFEBVRE: Second. CHAIRMAN FLEGAL: We have a motion and a second to accept Exhibit A. All those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) MR. BONANNO: This is CEB Case No. 2004-046, Board of County Commissioners versus William Petruzzi. The violations are that of Sections 1.5.6, 1.8.7, 2.1.11, 2.2.9, and 2.7.6 of Collier County Ordinance 91-102, as amended; as well as Section 5 of Ordinance 89-06, as amended by Ordinance 2002-05; as well as Sections 22-263 and 101 -- 101.4.9.2 of Ordinance 2002-01; as well as Sections 6, 7 and 8 of Ordinance 99-51. The violation is described as an unmaintained, unpermitted residential structures, and additions, unpermitted sewer tap installation and litter. The violation is located at 5025 Bayshore Drive, Naples, more particularly described as Folio 61840400003. The name and address of the persons in charge of the location where the violation exists is William Petruzzi, 880 Second Street Page 94 ____n_ November 29, 2004 Northeast, Naples, Florida, 34120. The violations were first observed on May 31 st, 2004. A notice of violation for the 91-102 violations was given to the owner on April 28th, 2004. And a notice of violation for all other violations was issued on March 16th, 2004. All 91-102 violations were to be corrected by May 12th, 2004. All other violations were to be corrected by April 16th, 2004. A reinspection occurred on October 4th, 2004, and as of that date, the violation still remained. I will now turn the case over to the investigating officer, Eddie Ybaceta. (Speakers were duly sworn.) MR. YBACETA: Good afternoon. My name is Eddie Ybaceta, just for the record, code enforcement investigator. On March 16th, 2004, I received a complaint from Collier County Sheriffs Corporal Mike Nelson, who is this gentleman right behind me, concerning vagrant use of an abandoned residential mobile home in Collier County known as 5025 Bayshore Drive, in Naples, Florida. At noon that same day, I met Corporal Nelson at the site in question and together we inspected the property and confirmed the existence of multiple housing and litter violations -- as they are right there. I researched Collier County property records and prepared an appropriate notice of violation for my supervisor to review and get approval. Attempted contact with Mr. Petruzzi multiple times without success. On April 15th, 2004, Investigator Dennis Mazzone and I met with Mr. Petruzzi at the property in question. Together we walked the entire site, and discussed all litter, maintenance and housing code violations in detail. Page 95 ""'----.-..- ..'._-_..._-,_..-.~- November 29, 2004 That right there is the kitchen. That right there is a hole in the roof. That is -- that's a hole in the floor, looking at it from the first floor up. And that would be the same spot, looking down at it. That would be actually the -- floor, thank you. Pardon me, I'm a little nervous. We provided Mr. Petruzzi with copies of the appropriate ordinances. We also provided information pertaining to related permit matters and informed Mr. Petruzzi we would be preparing a companion case to assure that -- best compliance results regarding the permit matters. This is the litter on the outside of the property. Investigator Dennis Mazzone and myself confirmed the Collier County Land Development Code Ordinance 91-102, as amended, consisting of permit related issues, resulting in companion case 2004-04741 for the property in question. Later that same day, I researched Collier permit records for the property in question. On April 20th, 2004, Investigator Mazzone and I met with Mr. Petruzzi at our office at 2800 North Horseshoe Drive. We discussed the permit history of a steel framed support structure, which never received final inspection or certificate of compliance by Collier County building permits, resulting in an expired permit. We also discussed placement of a single wide mobile home structure on the upper portion of the steel structure without Collier County permits. A wood frame addition to the south side of the non-permitted mobile home and a concrete block base and wood frame addition to the north side of the mobile home were also constructed without permits. You can basically tell right there, that part right there was the addition. The center part with the protruding windows is the mobile home, and the other addition is actually -- is covered up, right there. There's another picture that will show it. Right there. Page 96 -~----_..,.,- November 29, 2004 We also informed Mr. Petruzzi that Permit No. 97-120130 for a reroof expired due to no final inspections, and the permit 94-0004995 for the sewer tap was canceled due to no final inspection. During the meeting, we provided details and direction on how to acquire compliance, and gave Mr. Petruzzi a notice of violation for the permits. On April 29th, I met Mr. Petruzzi at the location in question and he stated that he would be looking into his options and would start cleaning up the property as soon as possible. After numerous visits, I observed the violation remained and I was unable to contact the owner. On August 16th, 2004, Supervisor Petrulli, Investigator Dennis Mazzone and myself met with Mr. Petruzzi at our office at 2800 Horseshoe Drive. Mr. Petruzzi was advised of his options for compliance, and due to the lack of progress, that this case would be turned over to Collier County Code Enforcement Board for review. Mr. Petruzzi was also advised to post No Trespass signs __ they're coming up now -- signage to secure the property against unwanted entry. On August 17th, I confirmed that the signs were up. As of November 24th, 2004, my last recheck, there was no progress observed. MR. BOWIE: Are you saying all he did was post No Trespassing signs, that's all he did? MR. YBACET A: Yes. MR. PONTE: Investigator, is there any indication that the building is being used as shelter by homeless? MR. YBACET A: Yes. MR. PONTE: And would you also say that there are health and safety hazards here? MR. YBACET A: Yes. MR. PONTE: Is there any indication that the building is used by Page 97 ~---'-^"-"'~ .. ·'~__·'··^H_n..._~.~.__, ____"_'_'_'''__'__ November 29, 2004 kids as a clubhouse or something of that -- gangs or something of that might be using it? MR. YBACET A: There are indications that they are used as playgrounds, yes. MR. PONTE: Thank you. MR. HEMES: Investigator, is there any graffiti inside or outside of the building structures? MR. YBACET A: Not that I observed, but I did not go all the way in and observe every room because the floor is so unstable, you could go right through it. I believe Corporal Nelson has been in there and he did have trouble walking through the area, too. MR. HEMES: Thank you. MS. DUSEK: Michelle, I have a question for you. This is obviously, it just looks like a time bomb to me for safety for the public. Isn't -- can't you just automatically go in when there's a health -- an immediate health hazard to the public and take care of it? I can see why you would come to us for litter, but when there's a safety and health issue that to me looks very immediate, I would think that the county could go in and remedy this. MS. ARNOLD: No, I can't immediately do it. I have to get some -- an evaluation from either the building department, the building official, you know, the fire official or some other official indicating that the structure is unsafe and inhabitable (sic). And we weren't able to obtain that information. MR. PONTE: This property is on Bayshore or near Bayshore, which is heavily populated, and also near a school area. MR. YBACETA: Yes, actually, there is. MR. PONTE: Is the electricity -- CORPORAL NELSON: Just right down the street from Avalon. MR. YBACET A: It's right down the street from Avalon. MR. PONTE: There's a photo of an electrical box. Is the Page 98 ------. November 29, 2004 electricity connected? CORPORAL NELSON: It was until I had -- excuse me, sir, ma'am. When I found this structure, I contacted FPL and had them remove the electrical box. If you give me a second, there's a pretty good picture of it. There's the electrical box itself, and the inside with all the.extension cords. What had happened, I had found the building. I had chased two homeless people out of it. I contacted the next door neighbor, who said he was a cousin to the owners, tried to work with them to get them to close it up, board it off. It was unsuccessful. I went into the structure, you've seen the photographs already. I fell up to my hip. The floor gave way out from underneath me when I was trying to go into the back bedroom. I backed off. The inspector is getting the -- what they had done is they had tapped into the power box, brought it up through a hole in the floor, and you can see all the extension cords running throughout the building. That's how they were powering everything. So the next morning, I had FPL disconnect -- remove the meter, at least take that away. My concerns, and the reason I took it to code enforcement, the underneath side, they built a garage, there's car parts, it smells of fuel oil, and if you look next to the boat, there's a 55-gallon drum that contains oil that's been spilling out all over the ground. When I finally did meet up with the owner, it took him two months, he took the 55-gallon drum and he put it underneath the carport, but it's still there. The structure's still not boarded up, and I've got kids that go by there every single day. MR. PONTE: And where is Mr. Petruzzi now? CORPORAL NELSON: I have no idea, sir. He won't return our phone calls. It's been hit and miss trying to get him to respond to us Page 99 "--,-,- November 29, 2004 whatsoever. MS. DUSEK: I'm personally just appalled by this. The fact-- it's one thing if you had a situation like this near the Everglades, I mean, that's bad enough. But in an area where there are children and there's a school and there are homes and people around, I mean, I just can't imagine that we've let it even come to code enforcement. Once the county knew about this, to me they should have gone in and secured it. I mean, I could see it being -- the county being liable at this point, since you are aware of it. So I really am just appalled. I have one minor question. This is so minor compared to everything else. But is this building secured to the ground? I mean, is it secured? CORPORAL NELSON: It's secured to the concrete block framework that I can see, but I dare say, it won't take a whole lot to blow it over. And the picture that's up now shows some of the debris and stuff that's in the front yard. And that white drum here, that's a 55-gallon drum worth of fuel oils of some sort. Either where there've been changing oil out of cars or -- I could only take a guess at what else might be in it. MR. PONTE: When you say they could change fuel oil, is there activity there? I mean, you see adult activity there? CORPORAL NELSON: There hasn't been. When I did speak to Mr. Petruzzi, he said he inherited it and hasn't done anything with it. He had people that were living there and they were supposed to maintain it. After that he wouldn't talk to me. MR. PONTE: They didn't do a good job. CORPORAL NELSON: No, sir. The other concern is, underneath in the garage area, there's old chemistry sets, there were acetylene torches, there's kerosene, there's paint, there's car batteries. Page 100 .---.-'"'"'.--- November 29, 2004 MS. DUSEK: Quite frankly, I've heard enough testimony. CORPORAL NELSON: Yes, ma'am. MR. BOWIE: Is there anyone here from the respondent? I don't think so. CHAIRMAN FLEGAL: I don't think so either. MR. PONTE: What do we do about it? CHAIRMAN FLEGAL: Well, we're going to -- MS. DUSEK: Well, first let's find a violation. CHAIRMAN FLEGAL: Any questions for the investigator or the officer? (No response.) CHAIRMAN FLEGAL: Thank you, gentlemen. We'll close the public hearing and first order of business the determination, finding of fact. MS. DUSEK: I make a motion that in the case of the Collier County Board of County Commissioners versus William Petruzzi, in CEB Case No. 2004-046, that in fact there is a violation. And I don't know if I have to also state the department case number, Jean? MS. RAWSON: I don't think so. MS. DUSEK: Okay. The violation is of Sections 1.5.6, 1.8.7, 2.1.11,2.2.9 and 2.7.6 of Collier County Ordinance No. 91-102, as amended; as well as Section 5 of Ordinance 89-06, as amended by Ordinance 2002-05; as well as Sections 22-263, and 101.4.9.2 of Ordinance 2002-01, as well as Sections 6, 7 and 8 of Ordinance No. 99-51. Description of the violation: Unmaintained, permitted (sic) residential structure and additions, unpermitted sewer tap installation and litter. I'd like to say even more, but that's all that's stated there. MR. BOWIE: Bobbie, I think when you said unmaintained, you said unmaintained, permitted. MS. DUSEK: I meant unpermitted, then. MR. BOWIE: Unmaintained and unpermitted. Page 101 ~-~-~'~~-",-_-.",._,......" November 29, 2004 MS. DUSEK: Okay. MR. BOWIE: Yes. I'd second that. CHAIRMAN FLEGAL: Okay, we have a motion and a second that in fact a violation does exist. Any further discussion? All those in favor, signify by saying ,aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MR. BOWIE: This is the type of situation where I think the recommendation here doesn't go anywhere near far enough. I mean, the idea of coming up with a -- finding a design professional to come up with a conceptual plan to do something about this is not going to address this problem. This is a problem, I think, that all of the permits, all of the engineers, all of the architects, all of the contractors in this world are not going to be able to put this Humpty-Dumpty back together again. I think what we need to do is have it boarded up and have it torn down. If the owner won't do this, the county should be authorized to go in and do it in short order. MR. PONTE: How short can that order be? In other words, to secure the place, how fast can we move on that, seeing that Mr. Petruzzi doesn't want to talk with us, then how fast can we go in there? And this is a dangerous situation. It's the worst I've seen in six years on this board. MS. ARNOLD: With respect to how fast -- Page 102 __,_.,"··m,~ "._.~_'~..___. November 29, 2004 MR. LEFEBVRE: I think Deputy Nelson wants to-- CORPORAL NELSON: In respect, sir, and ma'am, to board that thing up is almost an impossibility, because of big sliding windows, jalousie windows everywhere. You'd almost have to panel the whole thing off completely. MS. DUSEK: Let me ask you your opinion. Should it be demolished, in your opinion? CORPORAL NELSON: I've been trying to get it demolished since I found it in March. The other thing, so that the board knows, Assistant Chief Nick Bianti of Fire Prevention has issued a memo out to all the fire departments, if it does catch fire, nobody is to enter the building, they are to contain the fire and let it burn because of the hazard to them trying to go in there and do anything with it. CHAIRMAN FLEGAL: I can understand that. MR. BOWIE: I guess the question is how quickly can the county do something about it, because I don't think the owner is going to do a thing. CHAIRMAN FLEGAL: Jean. MS. RAWSON: Well, I think we have to give the owner a time to get the demolition permit and demolish it, and then if he doesn't, you can have them do it. MS. DUSEK: How much time? I mean, can we give him till tomorrow morning -- MR. BOWIE: How quickly does it take to get a demolition permit? MS. DUSEK: -- I mean, I'm just -- I'm really concerned __ MS. RAWSON: My guess is he won't have this order tomorrow mornIng. MS. DUSEK: Well, I know that. I'm being somewhat facetious, but I am totally concerned about __ MS. ARNOLD: The demo permit takes one day to obtain. But Page 103 _.,,,-'m_ ~ _ "....~_,__.~__ ~"--',..~..__..,--"~.._-,,._-~~ November 29, 2004 as Jean said, you've got to make sure that he actually gets it in the amount of time that the mail is going to provide for him to obtain the notice and then obtain a demo permit. MR. PONTE: Does he accept mail or has mail been returned? MR. YBACET A: He accepts mail. MS. DUSEK: Can we hand-deliver this mail? MR. YBACET A: I can do it. MS. DUSEK: I think that's the way it should be done. MR. HEMES: We can send a deputy with you. CHAIRMAN FLEGAL: We can ask that it be delivered that way. It's our order. We can instruct our attorney to have it delivered any way we want. MS. RAWSON: You know, as soon as Mr. Flegal signs it, instead of sending it -- I can send it to you, you can send a process server over there with it. CHAIRMAN FLEGAL: Jean, while we're discussing this, because of the condition of this property -- I'm looking to see -- where it is. Having seen the pictures and having been given the testimony of the condition of the property and the extreme, for lack of a better word, hazardous nature of the property, would this property fall under Statute 162.09.2.A.l, which says if code enforcement finds that a violation to be irreparable or irreversible in nature, it can impose a fine not to exceed $5,000? I mean, looking at this, this is __ MS. RAWSON: Well, it certainly sounds like it meets that description. CHAIRMAN FLEGAL: I mean, I guess what I'm looking for is, in seeing this and hearing -- giving somebody "X" days to get a demolition permit doesn't bother me, but at that point, rather than do a couple of different hundred dollars a day or various items, I'm for just saying, you know, it's 5,000 bucks and let's then order the county to demolish it if he doesn't, within -- if he doesn't get his permit and do it, Page 104 ,"-_. ~_...." ~ ---,.~..-..._~.".~,---~~~." November 29, 2004 it's $5,000. The end. I'm done with him. Can we utilize this section to do that? MS. RAWSON: Yes. MS. DUSEK: Would you tell me what that -- where that is? I have 162.09. CHAIRMAN FLEGAL: You got the -- okay, 162.09, go down to item 2A, Item 1: However. MS. DUSEK: Yes, okay. CHAIRMAN FLEGAL: So if we're going to order him to do anything, I would recommend to my fellow members that you consider giving him one alternative. He gets a demolition permit and removes the structure and everything on his property within "X" days, gets a permit within "X" days and removes it within -- I don't know, you'd have to hire some dump trucks to move it. I don't think it's that big a challenge myself. And if he doesn't, it's automatic $5,000. MS. DUSEK: Well, I think there's two parts to this. CHAIRMAN FLEGAL: And then we can order the county to do it at the same time. MS. DUSEK: And besides that I think-- CHAIRMAN FLEGAL: And pay the cost. MS. DUSEK: -- and besides that, the litter issue. He can demolish, but he also has litter, which he could take care of immediately. He can do that while he's waiting for his demolition permit or the people to come to demolish. So I think you have got it in maybe four parts: The litter, the demolition, the county, and then paying the cost to bring it to this board. And for the first time, I will go along with your $5,000, which I never thought I would do. CHAIRMAN FLEGAL: Thank you. I knew I'd get it in there some day. MS. DUSEK: How many years does it take? Page 105 ."..,.,.~,_.~..",,~-~ -,.. ~.~._."" November 29, 2004 MR. BOWIE: Just had to wait for a case that's bad enough. CHAIRMAN FLEGAL: It's taken me seven years to do this. I got it through, finally. MS. DUSEK: So now we have to put that -- Ray, do you want to put it together or do you want me to try it? CHAIRMAN FLEGAL: You want to try it, Ray? MR. PONTE: Before you start to craft that, just think in terms of the demolition, I think that should be very short. MS. DUSEK: Yes, absolutely. MR. PONTE: The -- you know, we tear down historic houses here in 24 hours after they get a demolition permit, I don't think __ CHAIRMAN FLEGAL: Michelle, how long does it take to get a demolition permit? MS. ARNOLD: It just takes a day. You get it the same day. But the process that we have to go through as a government agency is the bid process. CHAIRMAN FLEGAL: I understand about you removing it, that's fine. But for him to get a permit if he walked in today and gave you all the information, hypothetically, he'd get his permit tomorrow or possibly the same day. MS. ARNOLD: Oh, same day. CHAIRMAN FLEGAL: Okay. So keeping that in mind, George, that he can get a permit in say 24 hours and then we have to give him "X" to remove it. Now you can recommend anything you like and we'll see if we can live with it, whether it's two days, three days, one day. MR. PONTE: It will be something of that order. CHAIRMAN FLEGAL: But then if we ask the county to do it, we have to understand that the county's going to have -- they're going to have -- Michelle's going to have to write something up and I assume send it to -- do you send it to purchasing or do you do that yourself? MS. ARNOLD: We do it ourselves. Page 106 -'-~...' ,""".--.-- November 29, 2004 MS. DUSEK: We don't have to give her a time limit. I mean, this would be to go in as soon as possible after he has his time limit. MS. ARNOLD: Right. And we could go through the process during his -- in terms of the bid process, during his time period and then not grant to anybody the contract until his time period has lapsed. CHAIRMAN FLEGAL: Right. I wouldn't want us to ask the county to do it and then the county to take six months after we gave him one day. MR. PONTE: No, no. We have to ask the county to fast track this, it can't get lost in the process -- CHAIRMAN FLEGAL: Because it's such a problem, we want to alleviate the kids and the homeless and everything else and help the sheriffs department out and the fire department by getting rid of this atrocity, for lack of a better word. MR. HEMES: And he's going to pay for the demolition cost if it goes to contract? CHAIRMAN FLEGAL: Whatever it costs, if the county has to do it they will assess him and that will go as a lien against the property, as will any fine that we bring forward. MR. BOWIE: Let me take a stab at this, that in the case 2004-046, Board of County Commissioners versus William Petruzzi, that the Code Enforcement Board order the respondent, number one, to pay all operational costs incurred in the prosecution of this matter. Number two, within ten days, secure a demolition permit to remove the structure, debris and all other unpermitted trash, improvements from the property, or pay a fine of -- you say it's $5,000 per day? CHAIRMAN FLEGAL: No, just a flat $5,000. MR. BOWIE: $5,000. And three, to obtain a certificate of completion for the demolition of the property and the removal of all debris within 30 days of the date of this order or a fine of $5,000 will be levied. Page 107 _..~.." .~. -._._"''''''--~'^ November 29, 2004 Number four, if the respondent fails either to obtain the demolition permit within the ten days or to complete -- obtain the certificate of completion within the 30 days, that the county be authorized to enter upon the property, remove the structures, the debris, the contents with the costs of that procedure to be levied against the property. MS. DUSEK: Okay, Ray, I'm going to work on what you've just said. First of all, I'd like to see that the notice be hand-delivered. I'd like to have that in our order, I'm suggesting. MR. BOWIE: And that is within our options, to have that hand-delivered rather than mailed? MS. RAWSON: If somebody will do it, sure. CHAIRMAN FLEGAL: Well, as a board, can we not order it done? MS. DUSEK: I believe the inspector said he would. CHAIRMAN FLEGAL: No, I mean, we want to make sure it's done. Can we not order that our order be hand-delivered by either the sheriffs department or a process server, and what it costs, what it costs, that's the way it is. MS. RAWSON: Yes. Sure. MR. BOWIE: If it can be done, then great. MS. DUSEK: Okay. So I'd like to see that in there. Also, demolition permit within ten days, are you including the actual demolition in that or just getting the permit? MR. BOWIE: Just getting the permit. MS. DUSEK: I think it has to be much shorter than that. MR. PONTE: Five business days, let's say that. MR. BOWIE: The problem might be in actually serving him with a copy of the order. MS. DUSEK: Well, we're going to hand-deliver it. MR. LEFEBVRE: How about giving him five days from the Page 108 --"'" November 29, 2004 time he's served. MR. BOWIE: And ifhe can't be found, you know. MS. DUSEK: All right, five days from the time he's served. MR. BOWIE: Five days from the time he's served, I think, would be appropriate, yeah. MS. DUSEK: Okay. And for the removal? MR. BOWIE: The certificate of completion. MR. LEFEBVRE: I think 30 days is -- MS. DUSEK: You have 30. I just -- I've just got to see this tightened up. MR. PONTE: Say 15 days. MS. DUSEK: He gets the permit within five days from his receiving the notice. MR. BOWIE: And to get a contractor to undertake something like this? MS. DUSEK: He's been -- I don't know how long this has been going on. And he's been communi -- the county's been communicating with him, so this is not a surprise. MR. PONTE: Let's give him 15 days. It's not our concern if he has difficulty getting somebody. It really isn't. MS. DUSEK: Not at this point. So the certificate of completion within 15 days? Is that a possibility? MR. BOWIE: I don't know about getting a certificate of completion. MR. HEMES: How about an on-site inspection? MS. DUSEK: Okay, that sounds good. CHAIRMAN FLEGAL: Let's -- okay, one thing we have to keep in mind now. Jean, you can help me here. We can, under the first one, the $5,000 we want to fine him is because we find the building to be irreparable or irreversible and the problem to be irreversible or irreparable in nature. Page 109 _.' ,.~ ""~""""---"""~'-'""" November 29, 2004 MS. RAWSON: Correct. CHAIRMAN FLEGAL: We can't assess a penalty of$5,000 just because he doesn't get a CO. There's no such thing in the statute to let us do that. We have to then -- we can relate the CO to a specific section of the ordinance, which is 2.7.6, and assess him $250 a day if he doesn't get a CO. MS. RAWSON: Correct. MR. BOWIE: This would be in addition -- CHAIRMAN FLEGAL: To the $5,000. MR. BOWIE: The $5,000 could be levied now without any opportunity of definitely tagging it to him doing something? MS. RAWSON: Well, getting the demolition permit. CHAIRMAN FLEGAL: We've tied it to the he must get the demolition permit and remove the structure, because we find it -- in so many days -- and ifhe doesn't, because we find it irreparable or irreversible in nature, it's an automatic fine of $5,000. MS. DUSEK: Okay, now, how does that -- just make that clear to me. His -- the demolition permit and the removal of the demolition, the time frame is connected to the $5,000; is that -- CHAIRMAN FLEGAL: Well, yeah, you have to give him "X" to do it. I mean, he just can't do it in 30 seconds, he's got to have some kind of time. MS. DUSEK: So that $5,000 will be connected to that part of the violation. CHAIRMAN FLEGAL: Right. In other words, you say he gets a permit within 24 hours and he demolishes within five business days, and ifnone of that occurs, then he's automatically assessed a $5,000 fine. MS. DUSEK: Now, also, Jean, in giving him this $5,000 fine, which I think is the first time we've ever done this, should we in this recommendation cite that statute? MS. RAWSON: Yes, and I actually will quote it. Page 110 ^--___~_" '" ". '"~ ___"~"__m___ November 29, 2004 CHAIRMAN FLEGAL: Jean will do that. And then where Ray said he has to get a certificate of completion for the demolishment, which he does under 2.7.6, ifhe doesn't get a CO after he does all that, if he does it, we could then fine him $250 a day until he gets the CO for showing that he did in fact demolish it and it's clean and the county accepts that. But we can't do another 5,000. MR. BOWIE: You cannot do another 5,000. MS. DUSEK: Right. Now, if you do, at this time frame, five days to get the demolition permit from the time he receives notice, and then you do 15 days to remove -- to demolish and then 30 days for the certificate of completion, does that work? CHAIRMAN FLEGAL: Okay. At the end of -- well, the five and the 15, at the end of those two, which is 20 days, that's when the 5,000 kicks in if he doesn't do it. MS. DUSEK: Right, I understand that. I'm just getting a time frame. CHAIRMAN FLEGAL: Ifhe does do it, then you're giving him an additional 30 days just to get a CO. MS. DUSEK: Is that-- CHAIRMAN FLEGAL: A certificate of completion, not a CO. I'm sorry. MS. DUSEK: -- that's reasonable, isn't it? MS. ARNOLD: Thirty days? MS. DUSEK: Yeah, to get a certificate-- CHAIRMAN FLEGAL: And he ought to be able to get it a lot quicker than that. MS. DUSEK: -- of completion -- to get a certificate of completion in 30 days after he removes it. I mean, after he demolishes. MS. ARNOLD: He just calls an inspection and it's that next day or that day. Page 111 ~__'_n~._,_,~"",,__.____~," November 29, 2004 MS. DUSEK: I mean, they can go out that quickly? MS. ARNOLD: Oh, absolutely. MS. DUSEK: Oh, so it doesn't have to be 30 days? MS. ARNOLD: Not from the completion of the work, no, not at all. CHAIRMAN FLEGAL: So you can shorten that to -- MS. DUSEK: 20. CHAIRMAN FLEGAL: -- five days, if we want it. We're giving him five days to get a permit, 15 days to demolish, and then we give him five days to get a C of C. MS. DUSEK: Okay, sounds good. MR. KRAENBRING: In the demolition permit, will the on-site environmental hazards be addressed or is that something that has to be worked into the working of our order? MS. ARNOLD: Well-- MR. KRAENBRING: Like the oil drum, that was some sort of concern for me, that and the chemical sets, the upstairs and __ MR. BOWIE: That wouldn't be part of getting a demolition permit. It would probably be part of a certificate of completion, I . . ImagIne. MR. KRAENBRING: I would hope so. MS. DUSEK: Well, the removal-- MS. ARNOLD: I'm not sure whether or not an environmental assessment would be done. MR. KRAENBRING: From the testimony that we've had, it might be something to be concerned with. MS. ARNOLD: Right. It's not an automatic thing. CHAIRMAN FLEGAL: Something we have to remember is, the items he was cited for, he wasn't specifically cited for any environmental violation, so we can't make him do anything to that, because he wasn't cited for it. We've been told there's an oil drum sitting there, but he wasn't Page 112 -.....",.--'.-----.--.- November 29, 2004 cited for violating any environmental section of the land development code, so we can't do anything about that. You can't add items later. MS. DUSEK: I think what Richard is saying is that maybe that's going to be part of the demolition. CHAIRMAN FLEGAL: But we can't put that in our order. MS. DUSEK: Well, I understand. It may have bearing on-- CHAIRMAN FLEGAL: We have nothing to say about that, you know, we just can't do that. MS. DUSEK: All right. The other part, Ray, is the removal of litter, which you did not put in there, and I would like to see that in there. CHAIRMAN FLEGAL: Well, you can add a line item, because litter is a specific ordinance section, well, it's in Ordinance 99-51. Ray can say he has to remove all litter and other -- MR. BOWIE: Put the same time frame. Why not? It's expedited enough. CHAIRMAN FLEGAL: -- items within -- we've just given him five, 15 and five, that's a total of 20 days, within 20 days __ MS. DUSEK: Twenty-five. Actually, it's 25, I guess. CHAIRMAN FLEGAL: Okay. He has to remove all litter. Or we can slap him with $250 a day there, because that's a different violation. MR. BOWIE: See, I don't think you can get a certificate of completion for a demolition permit unless the lot is pretty much scraped bare. I believe you have to haul everything away is my understanding. CHAIRMAN FLEGAL: I don't know. MR. PONTE: I don't -- so maybe it ought to say for demolition and removal of debris and all litter. CHAIRMAN FLEGAL: We'll make the litter within 20 days. You've given him five for a permit, 15 days to demolish, that's 20. Give him 20 days to get rid of the litter, period. Page 113 ___._',M>^ November 29, 2004 MR. PONTE: Just link it into the same sentence, that's all. CHAIRMAN FLEGAL: We'll make it a special line item because we don't -- we want the dollar item -- MR. PONTE: To be separate. CHAIRMAN FLEGAL: -- separate, so that we don't, down the road, have a problem with the judge saying here we've tried to fine somebody $500 a day and -- we want to put this into a specific ordinance because it is a separate violation. MR. PONTE: Absolutely correct. CHAIRMAN FLEGAL: That keeps us clean. MR. PONTE: One hundred percent. MR. HEMES: Ray, have you included operational costs? CHAIRMAN FLEGAL: That was Ray's first item. MR. HEMES : Well, after all this discussion, I didn't want it to get lost. CHAIRMAN FLEGAL: It's easy to get lost. Okay, so we should end up with four or five items. Jean, how are we doing? MS. RAWSON: I think I got it. On the litter, you are just going to say all litter. CHAIRMAN FLEGAL: Yeah, all litter rather than call out -- I mean, there's a whole long list of stuff here, I think -- he got a notice of litter, so he should know what the litter is. I don't think we need to say each and every item. And that's in accordance with Ordinance 99- 51, and that will be -- MS. RAWSON: And the 5,000 is tied into both the demolition permit within five days and removal within 15? CHAIRMAN FLEGAL: Right. At the end of the 15 days, ifhe has not removed the structure, due to the fact that it is irreparable or irreversible in nature in accordance with the statute, it's an automatic $5,000 penalty, fine. I'm sorry, fine is the word. MS. DUSEK: And you have the removal -- and the Page 114 --^." . --~->,._~.._..,- November 29, 2004 hand-delivery, we'd like to order that it be hand-delivered. MS. RAWSON: Yes. CHAIRMAN FLEGAL: That's something we'll just instruct our attorney, and if she knows we want it done, she'll see that it gets done. We're not ordering him to hand-deliver anything, we're just ordering our -- MS. DUSEK: Yes, right. CHAIRMAN FLEGAL: -- our attorney to see that it gets done. MS. DUSEK: I just wanted it to be part of that. CHAIRMAN FLEGAL: Okay, everybody understand what we're trying to do? MS. DUSEK: I second the motion. CHAIRMAN FLEGAL: And what the motion is? Everybody on board? Okay, we have a motion and a second. If no further discussion, all those in favor, signify by saying aye. MR. BOWIE: Aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) MS. ARNOLD: So Jean, you have all that, right? MS. RAWSON: I think so. Mr. Flegal will come read it carefully, and I'll -- CHAIRMAN FLEGAL: I'll read it when I go to Jean's office. MR. BOWIE: Chairman, if you'll excuse me, I'm going to have to depart the meeting. CHAIRMAN FLEGAL: Yes, sir, you told me that before, so -- Page 115 .~__ <'''. . o~".~>··.,_..~"~·~,~" November 29, 2004 MR. BOWIE: Thank you very much. (Mr. Bowie has left the meeting.) CHAIRMAN FLEGAL: Not a problem. Next case, 2004-053. Juan and Armandina Flores. MR. BONANNO: The county has previously submitted a packet of information labeled Exhibit A that we'd like to have entered into evidence at this time, please. MS. DUSEK: I make the motion that we accept the county's Exhibit A. MR. HEMES: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's Exhibit A. All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Yes, sir. MR. BONANNO: This is CEB Case No. 2004-053, Board of County Commissioners versus Juan and Armandina Flores. The violation is that of Sections 103.11.1 of Ordinance 2002-01, amending the Florida Building Code. The violation is described as a mobile home on property deemed hazardous due to the state of disrepair. The violation exists at 13500 Lake Park Boulevard, Florida, more particularly described as folio 000764560006. The name and address of the individuals in charge of the location where the violation exists are Juan and Armandina Flores, Page 116 ~._- November 29, 2004 P.O. Box 2727 LaBelle Florida, 33935. The violation was first observed on June 11 th, 2004. A notice of violation was issued on June 17th, 2004. The violation was to be corrected by July 13th, 2004. There was a reinspection on August 2nd, 2004, and as of that date, the violation still remained. I'll now turn the case over to investigator John Santafemia. (Speaker was duly sworn.) MR. SANT AFEMIA: For the record, John Santafemia, Collier County Code Enforcement investigator. On June 11 th, 2004, I observed a mobile home structure which was in disrepair, causing it to be unsafe and hazardous. The structure was unoccupied, open and unsecure at that time. I obtained photos of the structure and prepared a code case. On June 17th, 2004, I completed the research through the Collier County appraisers and tax office and determined that Juan and Armandina Flores were the property owners of record. I prepared a notice of violation, which was sent certified mail. On July 13th, 2004, I completed a reinspection of the property and noted that there was no change in the condition of the property. I received the return receipt from the certified mailing which was signed on June 28th, 2004. I checked for a demolition permit and was unable to locate one. A CEB warning letter was mailed to the property owners at that time. On August 27,2004, I completed another reinspection of the property and noted there was no change in the condition of the structure. At that time I began preparing the case for Code Enforcement Board. On November 3rd, 2004, I completed an inspection of the property and noted that the structure remained in disrepair, and its condition had deteriorated further. This is what it looks like now. Page 11 7 -._,~.-....... . November 29,2004 I again checked for possible demolition permits and was unable to locate one. I updated the photos and the case notes and prepared the case for CEB. MS. DUSEK: Have you ever had any contact with the owners? MR. SANTAFEMIA: No, not personally. CHAIRMAN FLEGAL: The times that you've been out there, have you noticed if anybody's been -- I don't want to say in the structure, there's not much structure there? MR. SANTAFEMIA: No, actually, all the visits that I've made out there, I've never seen anybody on the property at all. MR. PONTE: Is it graffiti that's there or is it -- what is that painting stuff? I mean, is it -- MR. SANT AFEMIA: There is -- somebody has spray painted some stuff on it. I don't -- I think it might be in Spanish. CHAIRMAN FLEGAL: Is this in a mobile home park or is this on a specific plot of land or -- MR. SANTAFEMIA: No, this is out off the East Trail, out towards the Everglades. It's just on a piece of property by itself. There are other mobile homes in the area, but I don't believe it's like an association or a specific park. CHAIRMAN FLEGAL: Yeah, I mean, I can see other mobile homes in the background on one angle. That's why I'm wondering, is this a park or do they own other items? MR. SANTAFEMIA: No. The property borders -- in the one picture where you can see other structures, that's actually a separate piece of property, and there are some mobiles back in there. MR. PONTE: My concern is that there isn't much difference between this case and the one we've just heard. I have to assume that there are children in that mobile home area. I also have to assume, I guess, it's the kids who spray painted it. Am I right or wrong? MR. SANT AFEMIA: Probably correct. There is no school in that immediate area, and, like I said, I've never seen anybody on or Page 118 ,--- November 29,2004 around the property, especially children. MR. HEMES: John, have they made any attempt to maintain the property, cut the grass, clean it up? MR. SANT AFEMIA: Well, the grass has been cut. I don't know who's been cutting it, but the grass was cut. MR. HEMES: Thank you. MR. LEFEBVRE: What's the make-up of the neighborhood? When you're in there, do you see children at all or -- MR. SANT AFEMIA: I haven't seen any children in the area, in the immediate area. It looks like there's a lot of migrant-type workers back in there. CHAIRMAN FLEGAL: Any other questions for the investigator? Thank you, sir. We'll close the public hearing and open up a finding of fact by the board. MS. DUSEK: I make a motion that in the case of the Collier County Board of County Commissioners versus Juan and Armandina Flores, in the case CEB Case No. 2004-053, that a violation does exist. The violation is of section 103.11.1 of Ordinance No. 2002-01, amending the Florida Building Code. Description of violation: Mobile home on property deemed hazardous due to state of disrepair. MR. HEMES: I'll second that motion. CHAIRMAN FLEGAL: Okay, we have a motion and a second that in fact a violation does exist. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. Page 119 November 29, 2004 CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. I think the board might consider, in reading the recommendation and seeing the pictures that were submitted to us in the evidentiary packet, repairing this structure -- I have knowledge of mobile homes, having owned a few, this isn't going to be repaired. That's not going to happen. So I think there's only one thing that we can do is ask them to remove at least the mobile home and board up probably the wooden structure beside it. MS. DUSEK: Or demolish. CHAIRMAN FLEGAL: Well, yeah, or demolish. Remove the mobile home structure, board up or demolish the wooden structure, and since it's a violation of one particular section, and it obviously has been going on some time, noticing the dates of the pictures that have been submitted to us, I don't think we need -- we should give them a whole lot of time. We might consider that. Michelle, a side question. When we -- did you get any response back when you tried to deliver this? Did you get a card back that they accepted? Did we get anything at all? MS. ARNOLD: No. We had posted the property, apparently. CHAIRMAN FLEGAL: Other than you know they have an address in LaBelle, that's it. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay. Thank you. Order of the board, please. MS. DUSEK: Well, following your recommendation, I make a motion that we recommend that the respondent pay -- no, we don't recommend, we just make a motion that the respondent pay all operational costs incurred in the prosecution of this case and abate the violation by removing the mobile home structure within -- well, first Page 120 .<"'--~-"-"-.-."""-----~-., November 29, 2004 of all, he needs to get a permit for that. CHAIRMAN FLEGAL: Yeah. Michelle, he'll have to get permits to remove this, and/or demolish the structure, too, not only the mobile home. But he'll need something to remove it off the lot, right? MS. ARNOLD: Yeah, a demo permit will take care of that. CHAIRMAN FLEGAL: A demo permit would do everything, okay. MS. DUSEK: But allow both, okay. And he can get that, you said, within a day. So we'll go along with, say, five days from the time -- CHAIRMAN FLEGAL: To get a permit. MS. DUSEK: Yes. From the time that he receives the notice. But how do we know when that would be? Maybe we should just say seven days, seven days from the date of this hearing, that he must get a demolition permit to either remove part or all of the structure. And if not, a fine of $100 per day will be imposed each day the violation exists. MS. ARNOLD: How much time to remove the structure? MS. DUSEK: I know, I'm just thinking about that. Twenty-five days to remove. First of all, we want him to get the demolition permit within seven days of the date of this hearing or a fine of$100. Twenty-five days to demolish and remove or a fine of $100 per day. And I think that takes care of it. MR. PONTE: I agree with everything you have there except for this initial part about the five days or seven days from the date of hearing. It won't happen that fast. We won't turn it around that fast -- MS. DUSEK: So you want to do ten days? MR. PONTE: So say from the date of service, like we did with the other, or like -- because it's going to be -- CHAIRMAN FLEGAL: Well, we can't find him, so we can't really order service. Page 121 November 29, 2004 MR. PONTE: Is it going to be sent by certified mail? CHAIRMAN FLEGAL: Well, that's how they send it, they turn -- right now the county sends return receipt requested, and they're not getting anything back so -- MR. PONTE: Oh, okay. CHAIRMAN FLEGAL: Which is easy to do. You go to the post office and you have something you're supposed to sign for, you don't have to do that, you just walk away and leave it with the postmaster. So that really doesn't do anything for you. MS. DUSEK: So you think we can turn this around and get it posted by -- in seven days or should it be ten days? What do you think, Jean? MS. RAWSON: We can have it posted within seven days. CHAIRMAN FLEGAL: All right, let's -- I'll change that seven to ten from the date of this hearing. MS. RAWSON : Well, we can have it posted within seven days. I mean, we'll have these orders out this week. CHAIRMAN FLEGAL: Yeah, I mean, she'll probably call me -- today's Monday, she'll probably call me Wednesday and ask me to come sign them, and I normally show up the next morning. I can go the same day, if I'm around. And then they get them out. So it's not a long process to get these signed. MS. DUSEK: Well, I think it would be safer to say the ten-day period. So, we'll do -- CHAIRMAN FLEGAL: I mean, I don't have a problem with the ten days. We've waited this long. MS. DUSEK: Right. CHAIRMAN FLEGAL: Okay, you're going to do ten days just to get the permit. MS. DUSEK: The demolition -- $100 a day-- CHAIRMAN FLEGAL: And then $100 a day-- MS. DUSEK: -- if that hasn't taken place. Page 122 --~-, November 29, 2004 If he does get the permit, then he has 25 days from the date of the permit or the date of this hearing -- no, I guess it has to be the date of the permit -- to demolish and remove or $100 per day will be imposed. MR. LEFEBVRE: Are we going to do anything about if he doesn't do those two items? MS. DUSEK: Yes, I'm going to that next. I guess we have to call on the county again, if he doesn't or -- CHAIRMAN FLEGAL: Right, we can ask the county to do that. MS. DUSEK: The county go out. CHAIRMAN FLEGAL: They just have to do what they're doing on the other one, get some bids, it's a little work for them, and be ready, just in case. MS. DUSEK: And those costs will be part of the operational costs. CHAIRMAN FLEGAL: Yeah, you're going to make that an item? MS. DUSEK: Yes. CHAIRMAN FLEGAL: And then I have a question to ask you after you do that. So I'll wait. MS. DUSEK: I'm finished. CHAIRMAN FLEGAL: The $100 a day if he doesn't remove the structures within, what did you say, 25 days? MS. DUSEK: Uh-huh. CHAIRMAN FLEGAL: Could you change the $100 a day to 150? MS. DUSEK: Okay. CHAIRMAN FLEGAL: That gets us a max of250, which we're allowed to do because you've got an item for a permit and an item -- MS. DUSEK: You're pushing me today. CHAIRMAN FLEGAL: I had a little luck, I want to try it again. Page 123 November 29, 2004 I mean, we want him to do this, and obviously he's not responding to the county, so -- MS. DUSEK: Right. Okay. CHAIRMAN FLEGAL: -- let's get his attention. MS. DUSEK: Okay. CHAIRMAN FLEGAL: So have we got everything covered? MS. DUSEK: You understand that, Jean, yes. MS. RAWSON: Where is the 5,000? CHAIRMAN FLEGAL: No 5,000 on this one, no, no, no. Not on this one. We're not going to do this one, 5,000. MS. RAWSON: I thought that's what you were pushing her for? MS. DUSEK: No, no, he pushed me for another 50. CHAIRMAN FLEGAL: I pushed from $100 to 150 if he doesn't remove it within the 25 days. Okay? MS. RAWSON: Okay. I got it. CHAIRMAN FLEGAL: I'm not going to push my luck on another 5,000. One a day is, I think, all I'm only going to get out of her. MS. DUSEK: Once a year. MR. LEFEBVRE: Once every seven years. MR. HEMES: I'll second the motion. CHAIRMAN FLEGAL: Okay. Everybody understand? And we have a motion and we have a second. MR. HEMES: Yes, we do. CHAIRMAN FLEGAL: Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. LEFEBVRE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Page 124 November 29, 2004 Any opposed? (No response.) CHAIRMAN FLEGAL: Next case, 2004-060, Jerry and Janice Miller. Okay, before we start, let's take five minutes. It's 1 :24. Let's come back at 1 :30. That gives us six minutes. (A recess was taken.) (Mr. Lefebvre has left the meeting.) CHAIRMAN FLEGAL: We'll call us back to order, please. Case No. 2004-060, Jerry and Janice Miller. MR. BONANNO: The county has previously provided the board with a packet of information labeled Exhibit A and B, excuse me. We'd like to have that entered into evidence at this time. MS. DUSEK: I make a motion that we accept the county's Exhibits A and B. MR. HEMES: I second the motion. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's Exhibits A and B. All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay. MR. BONANNO: This is CEB case 2004-060, Board of County Commissioners versus Jerry and Janice Miller. The violation is that of Sections 3.5.3 and 3.5.7.1.2 of amended Collier County Ordinance 91-102. Page 125 November 29, 2004 The violation is described as an excavation and removal of fill without first obtaining the required Collier County permit. Excavation also violates setback requirements. The violation exists at 4260 68th Avenue Northeast, Naples, more particularly described as folio 38904960001. The owners in charge of the location where the violation exists are Jerry and Janice Miller, 4251 66th Avenue Northeast, Naples, Florida 34120. The violation was first observed on February 27th, 2004. A notice of violation was issued on February 27th, 2004. The violation was to be corrected by March 27, 2004. A reinspection occurred on August 25th 2004, and as of that date, the violation still remained. And I'll turn the case over to investigator officer Jeff Letourneau. MR. PONTE: Jeff, before you start, just a question. Is there a linkage here between these two cases? I mean, is there any way we can do them together? CHAIRMAN FLEGAL: No, we can't, they're two separate pieces of property. MR. PONTE: Okay. Thank you. (Speaker was duly sworn.) MR. LETOURNEAU: For the record, Jeff Letourneau, Collier County Code Enforcement investigator. In late February of this year, I received the complaint from the county engineering department about an illegal excavation on the described property. I went out there on February 27th and did observe kind of a haphazard excavation, as you can see on my picture here, that was done. I went back, wrote up a notice of violation for the owners and had it mailed. On a reinspection on March 2nd -- excuse me, April 2nd, I noticed the violation still remained. And I left a card at the owner's Page 126 November 29,2004 address, which was adjacent to this property. I received a call from the owner, Jerry Miller, stating that he had, you know, done the excavation without permits and he wanted to make it right and get permits from the county. After a few months, we got set up with the Collier County engineering department, Stan Chrzanowski, and Mr. Miller finally came in for a pre-app hearing for a conditional use permit. And that was on June 25th of this year. I gave Mr. Miller plenty of time to come back and, you know, try to take care of this after the pre-app, and he never came back in. So as of August 25th, 2004, I submitted the case for CEB. I was out there again on October 18th, and the violation remains, and Mr. Miller has failed to contact the county any more about getting his excavation permit or his conditional use permit. MS. DUSEK: The permit that he came and got in June is which kind of permit? MR. LETOURNEAU: That's -- he came in for a pre-app approval permit. That's a conditional use permit in order to dig on the property out there. MS. DUSEK: Now, how much -- what is the expiration on a permit like that? Is it six months like a regular permit? MR. LETOURNEAU: I'm not really sure about that. He never really obtained the permit. He just got a pre -- you know, pre-approval. He didn't come in and get the whole nine yards, what he had to do. CHAIRMAN FLEGAL: He didn't get a permit number, correct? MR. LETOURNEAU: Exactly right. He was never issue a permit. He came in and did a pre-app, but he never was issued a permit for the excavation. CHAIRMAN FLEGAL: Jeff, is this a two and a half acre plot or acre and a quarter, or -- MR. LETOURNEAU: I think it is a two and one quarter acre-- Page 127 November 29,2004 no, it's two and a half. Excuse me. CHAIRMAN FLEGAL: Two and a half, 150-foot? MR. LETOURNEAU: Yes, uh-huh. CHAIRMAN FLEGAL: Okay. Can you -- obviously he's taking the dirt somewhere else, I assume. I don't know whether he's selling it and making a lot of money or -- but it looks like he's just not building lakes to get prepared for a house, does it? MR. LETOURNEAU: I don't know what he's doing out there. I know he -- I mean, in my opinion and in the county engineering department's opinion, he did remove fill from this property. Now, what he did with it after that, it's anybody's guess. CHAIRMAN FLEGAL: It doesn't look like he's getting ready to build anything. MR. LETOURNEAU: No, I don't think so. CHAIRMAN FLEGAL: Okay. MR. LETOURNEAU: I think he -- you know, my opinion, I think he took it and built off-site elsewhere or gave it to a construction company. CHAIRMAN FLEGAL: Okay. Any questions for the investigator? Thank you, sir. We'll close the public hearings. Finding of fact by the board that in fact the violation does exist. MS. DUSEK: I make a motion that in the case of the Collier County Board of County Commissioners versus Jerry and Janice Miller, in CEB Case No. 2004-060, that a violation does exist. The violation is of Sections 3.5.3 and 3.5.7.1.2 of amended Collier County Ordinance No. 91-102. Description of violation: Excavation and removal of fill without first obtaining the required Collier County permit. Excavation also violates setback requirements. CHAIRMAN FLEGAL: We have a motion on the floor in fact a violation does exist. Page 128 November 29,2004 MR. HEMES: I'll second. CHAIRMAN FLEGAL: We have a second. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Order of the board. MS. DUSEK: Well, I think what the county has recommended seems very appropriate, so I make a motion that the CEB order the respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by obtaining all required Collier County permits, inspections and certificate of completion for the excavation work performed, or fill in the excavation portions of the property with legal clean fill and restore it to its originally permitted condition. All corrective action must be completed within 90 days of this hearing or a fine of $100 a day will be imposed for each day the violation continues to exist. The respondent must notify the code enforcement investigator when the violation has been abated in order to conduct a final inspection to confirm abatement. MR. HEMES: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. Page 129 November 29, 2004 MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Next case, 2004-061, Gerald and Louise Miller. MR. BONANNO: The county has provided the board with two packets of information that we would ask be received into evidence as Exhibits A and B, please. MS. DUSEK: I make a motion that we accept the county's Exhibits A and B. MR. PONTE: Second the motion. CHAIRMAN FLEGAL: We have a motion and a second to accept the county's Exhibits A and B. All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) MR. BONANNO: This is CEB Case No. 2004-061, Board of County Commissioners versus Gerald and Louise Miller. The violations are that of Sections 3.5.3 and 3.5.7.1.2 of amended Collier County Ordinance 91-102. The violation is described as the excavation and removal of fill without first obtaining the Collier County permit. Excavation also violates setback requirements. The violation exists at 4251 66th Avenue Northeast, Naples, more particularly described as folio 38904880000. Page 130 November 29, 2004 The address and name of the owners in charge of the location where the violation exists are Gerald and Louise Miller, 4251 66th Avenue Northeast, Naples, Florida 34120. The violation was first observed on February 27th, 2004. A notice of violation was issued on February 27th, 2004. The violation was to be corrected by March 27th, 2004. A reinspection occurred on August 25th, 2004. And as of that date, the violation still remained. Once again, Jeff Letourneau. (Speaker was duly sworn.) MR. LETOURNEAU: Once again, late February, 27th, I received a complaint from the engineering department about another excavation, this one at the stated address of 4251 66th Avenue Northeast. I went out there, nobody was home. I did notice a big lake in the backyard. I came back to the office, wrote a notice of violation and sent it certified mail. On my reinspection on April 2nd, I observed the violation still existed. Nobody was home at that time either, so I left my card. And I received a card from Jerry Miller, who I believe is the property owner's son, who stated that yes, he had dug the lake back there and he didn't get a permit for it but wanted to get a permit. I gave him Stan Chrzanowski's number, the county engineer who he needed to contact to get the permit, and eventually he contacted him and he did set up a pre-app meeting on June 25th and agreed to get a permit. He never followed through after that, and two months later, on August 25th, I left a note for Mr. Miller saying that I would turn this case over to the Code Enforcement Board because he had failed to act on his previous promises. As of 11/18/04 I went out there and the lake was still there. Mr. Miller wasn't there. And I posted the CEB notices of hearing. Page 131 November 29, 2004 As you can see on this one, he really went and violated setbacks, because you can see on the east side right here, he went way into the adjoining property with the lake and the embankment. CHAIRMAN FLEGAL: Yeah, that was going to be my question, Jeff, is he not imposing on the people's next door property? I mean, it looks like the driveway and whatever going back to this lake is totally on somebody else's property, is that -- MR. LETOURNEAU: That's correct, yes. Yeah, even if he does get a permit, he's going to have to really shore that up 30 feet off the lot line. So one way or the other, he's going to have to bring some dirt back in there and get this thing shored up. CHAIRMAN FLEGAL: Yeah, he's going to have to move -- I don't know what the setback is, yeah, he's -- I assume it's probably what, 15 feet? MR. LETOURNEAU: I believe it's 30. MR. KRAENBRING: The property line that's just adjacent to that seems rather thin compared to his property. Is that the right-of-way? MR. LETOURNEAU: No, that's just one of those 75-footers that that's an acre and a quarter that they legally permitted back in the Seventies, which they don't legally permit anymore, but -- MR. KRAENBRING: Is there a possibility that someone would be able to purchase that and join those properties to meet the setbacks? MR. LETOURNEAU: He could do that, yes, if he wanted to. MR. HEMES: You want me to do this one? CHAIRMAN FLEGAL: Okay. Yes, sir, take a shot at it. MR. HEMES: All right. CHAIRMAN FLEGAL: First we have to do our finding of fact, so. MR. HEMES: Well, finding of facts that a violation does exist in Code Enforcement Board Case No. 2004-61, Board of County Commissioners, Collier County, Florida, versus Gerald and Louise Page 132 - ~ --.-,--._._"'... --.:¡ t'- - .",,,.,.._-.-<--< November 29,2004 Miller. Violation of Sections 3.5.3 and 3.5.7.1.2 of Collier County Ordinance 91-102, amended. The board orders the respondent to pay all -- CHAIRMAN FLEGAL: No, we just want a finding of fact, so we stop there. MR. HEMES: Oh. We stop there. CHAIRMAN FLEGAL: First we do that he in fact has a violation. MR. HEMES: Okay. Thank you. CHAIRMAN FLEGAL: Then we'll do the order of the board. MR. HEMES: I'm just a trainee. CHAIRMAN FLEGAL: That's okay. MS. DUSEK: That's fine. MR. PONTE: Also, you need the description of the violation. MS. DUSEK: You can do the description of the violation. Do you see that? CHAIRMAN FLEGAL: Yes, if you look on Page 2, it will give you a description of the violation. MR. HEMES: Page 2? CHAIRMAN FLEGAL: Go back to the beginning. Over one more page, there you go. Item two at the top, description of violation. MR. HEMES: Okay. Excavation and removal offill without first obtaining the required Collier County permit. Excavation also violates setback requirements. MS. DUSEK: That's your motion? MR. HEMES: That's my motion. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second that in fact a violation exists. All those in favor, signify by saying aye. MS. DUSEK: Aye. Page 133 November 29, 2004 MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (N 0 response.) CHAIRMAN FLEGAL: Okay, now, order of the board. You can go. MR. HEMES: Order of board. The respondent to pay all operational costs incurred in the prosecution of this case and abate all violations by, one, obtaining all required Collier County permits, inspections and certificate of completion for the excavation work performed or fill in the excavation portions of the property with legal clean fill and restore to its originally permitted condition. All corrective action must be completed within 90 days of this hearing or a fine of $100 a day will be imposed for every day the violation continues to exist. The respondent must notify the code enforcement investigator when the violation has been abated, in order to conduct a final inspection to confirm abatement. MS. DUSEK: I second that motion. CHAIRMAN FLEGAL: Okay, we have a motion and a second for the order of the board. Any discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) Page 134 November 29,2004 CHAIRMAN FLEGAL: That's the last case under public hearings. The public hearings are officially closed. We go to new business. First item, request for imposition of fines, BCC versus Deborah, is it -- MS. ARNOLD: Katchur. CHAIRMAN FLEGAL: Katchur. MS. ARNOLD: Yes, this case was heard by the board on March 25th, 2004. At that particular hearing, you all found a violation did exist and ordered the respondent to comply with the specifications noted in your order. The respondent is in compliance and we are at this time asking that the board impose the fines in the amount of $1 ,656.25 for the operational costs, but we are requesting a waiver of the additional fines of $1 ,500, because the respondent submitted the permit within the time frame specified but was held up from the building department's issuance. So she -- it was out of her control. CHAIRMAN FLEGAL: So you want us to impose the operational costs of $1,656.25 and no fines. MS. ARNOLD: Correct. CHAIRMAN FLEGAL: Okay. MS. DUSEK: I make a motion that we impose or -- or have the county impose the fine of $1,656.25 for the operational costs incurred in the prosecution of the case, CEB Case No. 2004-015. MR. HEMES: I second the motion. CHAIRMAN FLEGAL: We have a motion and a second to impose costs of 1,656.25. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Page 135 -<lP 1 .......~_._.~_.. November 29, 2004 Any opposed? (No response.) CHAIRMAN FLEGAL: Next item is BCC versus Del Ackerman. MS. ARNOLD: This case was heard by the board on August 23rd, 2004 and a violation was found, and the respondent was ordered to comply with the attached order. Mrs. Ackerman -- oh, Mr. Bass is here as well, representing the Ackermans. MR. BASS: Yes, I am. Thank you. MS. ARNOLD: And we are -- well, actually, they have already paid their operational costs in the amount of 572, and there are fines that accrued in the amount of $600, but they're here to request a waiver of that. And we have no obj ection to a waiver of that particular fine. CHAIRMAN FLEGAL: Okay. Mr. Bass. MR. BASS: Good afternoon, Mr. Chairman, board members. We don't agree that there are any fines accruing; however, the staff, I think, is agreeing that there should not be any fines. But because I don't know how you would view it, I do think I need to say why we don't think there are any fines accruing, or had any fine that should accrue. The -- we -- my client came into compliance on a timely basis, October the 25th. I guess the basis for the fine claimed by staff is that the inspection for compliance was done some six days later and the question there is if you come into compliance on a particular date but the inspection is not done until later , does the fine -- is there a fine accruing until the inspection is done. And I submit to you that that is not the proper way to view it. It is the county's burden to show that there was not compliance on or before the last date. And there was compliance. I can tell you that the -- and that's -- Page 136 November 29, 2004 you know, that's what the order says, we have to comply by October the 25th or a $100 a day fine will be imposed. Later on in the order it says and when you get it, you know, ready for inspection, show that the problem has been abated, let us know. Well, all I can tell you is that Mrs. Ackerman is here, she can tell you if you want to know further; but as they told me, you know, somebody with a county car came out on the 25th of October, took some pictures, got back in the car and left. My presumption from that, and theirs too, was that it was inspected and found to be in compliance. So a couple of days later I wrote a letter to staff saying here's the check for the administrative costs that were ordered, you know, somebody came out from the county and inspected it and so, you know, that's why we didn't call for an inspection on that day. And I think that letter was written on the 27th of October. So my point is that fines -- we don't believe fines have accrued. There was compliance on the 25th. Mrs. Ackerman can verify that. But in any event, it is the county's burden to show there was not compliance on the 25th. And I think they would agree with me that they cannot do that. So I respectfully request that no matter what you find, that there be no imposition of fines, and my client has already paid the administrative costs. MS. ARNOLD: I just want to make a point that the board's order did ask the respondent to contact us, and that contact was not made. CHAIRMAN FLEGAL: Okay. But the order also -- I'm afraid I have to agree with Mr. Bass, the amount is tied to complying by a certain date, there's no amount tied to notifying when the property comes into compliance. So if he and his clients state that they were complied on the 25th, I'm satisfied that he -- whenever he notified Page 137 November 29, 2004 you, he notified you. We didn't tie it to a number. Because of that fact, that may change from now on. MS. ARNOLD: Well, yeah, because it needs to be clear, because we were in contact with Mr. Bass or-- CHAIRMAN FLEGAL: I'm reading the order and it just says that the respondent is to notify code enforcement officials when the property comes into compliance and request the investigator come out and perform the site inspection. The end. No money, no do it within "X" days, no nothing. The money is tied to complete within 60 days, and if he doesn't, then it's $100 a day. It doesn't say anything beyond that, just to get it done within a certain time. He said they did it. His client is here, will testify to that. So the administrative costs, I'm for. The fine, I'm not for. So based on that, they requested a waiver of any fine. The county's not against waiving the fine. What's the board's pleasure? MS. DUSEK: I make a motion that in the CEB Case No. 2003-036 that the respondent pay the operational costs in the amount of $572. And I understand that they have already paid it. CHAIRMAN FLEGAL: Right. Okay. We have a motion for the respondent to pay the -- to impose the money which has already been paid, but officially we must impose it. MR. HEMES: I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Page 138 November 29, 2004 Any opposed, just in case. (No response.) CHAIRMAN FLEGAL: Next, request for foreclosure. MS. ARNOLD: Yes, you have a memo from me indicating that we would like to forward the Case No. 2003-021, Board of County Commissioners versus Carter Fence Company, Incorporated, owner Kenneth and Leslie Carter, to the county attorney's office for addressing either foreclosure or collections. CHAIRMAN FLEGAL: Okay, we have a request to forward to the county attorney's office for foreclosure the Carter Fence Company 2003-021. Can I hear a motion to do such? MR. PONTE: I'll second-- MS. DUSEK: Make a motion. MR. PONTE: I'll make a motion that the -- MR. KRAENBRING: I'll second it. MR. PONTE: You will second it-- CHAIRMAN FLEGAL: George, make the motion. MR. PONTE: -- that the foreclosure be carried forward to the county attorney's office. CHAIRMAN FLEGAL: Okay. We have a motion and a second. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Okay, next item, at our last meeting, I asked that a change be made to our rules and regulations. Hopefully Page 139 November 29, 2004 everybody got a copy. It's -- t~e words in bold are what we're adding. Only the words in bold are what we're changing right now. Everything else is there already. And this is so that when a violator's packet is submitted, that it be organized, paginated and have a table of contents so that the county doesn't have to just wander through this massive paperwork. So that's what we want to do. So if I could hear a motion to change Section 4, as noted, that's all we need, right, Jean? MS. RAWSON: That's right. MS. DUSEK: I see that the word "shall" is in. MS. RAWSON: Yeah, that's another change. CHAIRMAN FLEGAL: Yeah, because before it said "may" submit. MS. DUSEK: So we're going to do "shall". CHAIRMAN FLEGAL: All the words in bold are what we're changing. MS. DUSEK: I make a motion that we change Section 4 bold letters "shall", and the alleged violator's package shall be organized, paginated and shall have a table of contents. MR. HEMES: I'll second the motion. CHAIRMAN FLEGAL: We have a motion and a second to change our rules and regulations in Section 4 as noted. Any further discussion? All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Any opposed? (No response.) CHAIRMAN FLEGAL: We have no reports. Page 140 "..,..-... """~----"lr November 29, 2004 Any comments from anybody? MS. DUSEK: I would just like to reiterate Ray Bowie's request at the very beginning. I think it's much easier to follow on single pages. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: Okay. MR. HEMES: And three-hole punched is appreciated, for those of us with binders. CHAIRMAN FLEGAL: Any other comments? Make note, our next meeting, December 21 st. I'm looking, looking, looking -- that's a Tuesday in this room. Is that correct, Michelle? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Okay. At our normal times, which is-- our starting time is 9:30. We should be here ourselves at 9:00, if possible, just in case there's any items we can talk about. MR. PONTE: What's the date again, I missed it? CHAIRMAN FLEGAL: Twenty-first. December 21st. That is a Tuesday . We're doing that because Christmas holidays take our normal day. Anything else? If none, I'd entertain a motion to adjourn. MS. DUSEK: I make a motion that we adjourn. MR. HEMES: Second. CHAIRMAN FLEGAL: We have a motion and second to adjourn. All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PONTE: Aye. MR. HEMES: Aye. MR. KRAENBRING: Aye. CHAIRMAN FLEGAL: Aye. Those opposed? (No response.) Page 141 November 29, 2004 CHAIRMAN FLEGAL: We're adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1 :59 p.m. CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie R. Nottingham. Page 142 ^ --.-.....,.~~---,_.,._-~-- . 'H_""'___'_'_______'."__