Loading...
CESM Minutes 11/02/2018 November 2, 2018 1 MINUTES OF THE HEARING OF THE COLLIER COUNTY SPECIAL MAGISTRATE Naples, Florida, November 2, 2018 LET IT BE REMEMBERED the Collier County Special Magistrate, having conducted business herein, met on this date at 9:00 AM in REGULAR SESSION in Administrative Building “F,” 3rd floor, Collier County Government Complex, Naples, Florida, with the following persons present: SPECIAL MAGISTRATE: Honorable Brenda C. Garretson ALSO PRESENT: Michael Ossorio, Code Enforcement Director Jeff Letourneau, Manager of Inspectors Danny Blanco, Code Enforcement Specialist Helen Buchillon, Administrative Secretary Co ler County Growth Management Department Code Enforcement Division Special Magistrate Hearing AGENDA Board of County Commission Chambers Collier County Government Center 3299 Tamiami Trail East, 3rd Floor Naples, FL 34112 November 02, 2018 9:00 AM NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE SPECIAL MAGISTRATE 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 SPECIAL MAGISTRATE SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. I. CALL TO ORDER-SPECIAL MAGISTRATE BRENDA GARRETSON PRESIDING II. APPROVAL OF AGENDA III. APPROVAL OF MINUTES 3.1. September 21,2018 Special Magistrate Minutes IV. MOTIONS A. MOTION FOR CONTINUANCE B. MOTION FOR EXTENSION OF TIME 1. CASE NO: CESD20170012267 OWNER: Jacinto Luna OFFICER: John Connetta VIOLATIONS: Collier County Land Development Code, 04-41, as amended, Sections 10.02.06(B)(1)(a) and 10.02.06(B)(1)(e). New addition added to the rear of the main structure without first obtaining the proper Collier County building permits and inspections. FOLIO NO: 00090840005 PROPERTY 1411 Garthie Road,Immokalee, FL ADDRESS: V. STIPULATIONS VI. PUBLIC HEARINGS A. HEARINGS 1. CASE NO: CEA20180008390 OWNER: Thomas M.Aiello and Shari Cosme Aiello OFFICER: Thomas Pintura VIOLATIONS: Collier County Land Development Code, 04-41, as amended, Section 4.02.07. Keeping of livestock animals on this property totaling more than the allowed five for the particular acreage and keeping of a pig on the property. FOLIO NO: 36765241000 PROPERTY 3440 7th Ave SW,Naples,FL ADDRESS: B. EMERGENCY CASES VII. NEW BUSINESS A. MOTION FOR REDUCTION/ABATEMENT OF FINES B. MOTION FOR IMPOSITION OF FINES AND LIENS VIII.OLD BUSINESS A. MOTION TO AMEND PREVIOUSLY ISSUED ORDER B. MOTION TO RESCIND PREVIOUSLY ISSUED ORDER IX. CONSENT AGENDA A. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE NUISANCE ABATEMENT LIENS ON CASES REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. B. REQUEST TO FORWARD CASES TO COUNTY ATTORNEY'S OFFICE AS REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. X. REPORTS XI. NEXT MEETING DATE-FRIDAY DECEMBER 7, 2018 AT 9:00 A.M. XII. ADJOURN November 2, 2018 2 Any person who decides to appeal a decision of the Special Magistrate 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 Special Magistrate shall be responsible for providing this record. I. CALL TO ORDER-SPECIAL MAGISTRATE BRENDA GARRETSON PRESIDING The Honorable Special Magistrate Brenda C. Garretson called the Hearing to order at 9:03 A.M. All those testifying at the proceeding did so under oath. Prior to conducting the Hearing, Respondents were given an opportunity to speak with their Investigating Officers for a Resolution by Stipulation. The goal is to obtain compliance without being punitive. II. APPROVAL OF AGENDA Special Magistrate Garretson approved the Agenda. III. APPROVAL OF MINUTES The minutes of the September 21, 2018 hearing were reviewed by Special Magistrate Garretson and approved as submitted. IV. MOTIONS A. MOTION FOR CONTINUANCE None B. MOTION FOR EXTENSION OF TIME 1. CASE NO: CESD20170012267 OWNER: Jacinto Luna OFFICER: John Connetta VIOLATIONS: Collier County Land Development Code, 04-41, as amended, Sections 10.02.06(B)(1)(a) and 10.02.06(B)(1)(e). New addition added to the rear of the main structure without first obtaining the proper Collier County building permits and inspections. FOLIO NO: 00090840005 PROPERTY ADDRESS: 1411 Garthie Road, Immokalee, FL Investigator Connetta represented the County. Mr. Luna was present. Gene Silguero, Mr. Luna’s contractor was present and testified that he has submitted applications for the necessary permits and requested additional time to abate the violation. Mr. Connetta reported an Order was issued on March 18, 2018 and daily fines are accruing but does not object to the request. Special Magistrate Garretson GRANTED the Mr. Luna’s Motion for an Extension of Time with fines ceasing to accrue at this point in time but may be reinstated if the violation is not abated. The Extension is granted until the case is brought back for hearing by the County. V. STIPULATIONS None November 2, 2018 3 VI. PUBLIC HEARINGS A. HEARINGS 1. CASE NO: CEA20180008390 OWNER: Thomas M. Aiello and Shari Cosme Aiello OFFICER: Thomas Pintura VIOLATIONS: Collier County Land Development Code, 04-41, as amended, Section 4.02.07. Keeping of livestock animals on this property totaling more than the allowed five for the particular acreage and keeping of a pig on the property. FOLIO NO: 36765241000 PROPERTY ADDRESS: 3440 7th Ave SW, Naples, FL. Manager Letourneau and Kevin Noell represented the County. Shari Aiello was present and represented by Attorney Douglas L. Rankin The following evidence was entered during the proceeding: County Exhibit A: 1 Aerial photo of the property Exhibit B: 1 Zoning Map of the property Composite Exhibit C: 4 photos dated 6/20/18 Exhibit D: 1 photo dated 8/23/18 Composite Exhibit E: 5 photos dated 11/1/18 Respondent Exhibit A: 1 photo card identifying Brinkley (pig) as an Emotional Support Animal Exhibit B: 1 photo card identifying Blaze (horse) as an Emotional Support Animal Exhibit C: 1 photo card identifying Malia (sheep) an Emotional Support Animal Exhibit D: 1 photo card identifying Crash (goat) as an Emotional Support Animal Exhibit E: 1 Zoning Map of the property and related copies of the Land Development Code Exhibit F: Webster’s Dictionary definition of a pig Exhibit G: Webster’s Dictionary definition of a hog Exhibit H: Copy of Domestic Animal Services Minutes from 5/19/09 meeting Exhibit I: Letter from Kathy A. Feinstein, LMHC dated October 20, 2018 Exhibit J: Copy of Lease from Ledy Iglesias Exhibit K: Copy of Lease from Kathy Young Exhibit L: 1 Photo of Brinkley Exhibit M: 1 Photo of Brinkley Exhibit N: 1 Photo of Brinkley Exhibit O: 1 Photo of Brinkley Manager Letourneau testified: • That the violation was issued as a result of a community complaint about too many livestock animals harbored on the Aiello’s property. • The County, as near as can be determined, finds 9 animals housed on site, 4 horses, 3 goats, a donkey, a cow, and a pig. • The County notified Ms. Aiello that 5 livestock animals are allowed on their 2.5 acre lot and the pig could not be housed on site according to the Land Development Code. November 2, 2018 4 • Follow-up inspections by the Investigator revealed 5 animals on the property. However, the County was notified via follow-up calls from the public that there are more than 5 animals are on site. • During a follow-up visit Ms. Aiello informed the Investigator that the pig and 4 of the livestock animals were emotional support animals and should not be counted towards the number allowed on site. • The County Attorney notified the Division that the LDC codes do not contain a provision exempting emotional support animals. • As of yesterday, 7 animals were witnessed on site. Dave and Francine Moros testified: • That their residence is adjacent to the Aiello property on the west side. • The housing of the animals and related activities create a dust issue for them when the property is “dragged” causing fallout on their lanai and furniture. • Ms. Aiello disposes the animal feces within 20 feet of their drilled well and they are concerned about potential health issues due to water contamination. • The activity also creates a daily smell of animal waste; including urine. During Mr. Rankin’s questions, Mr. Moros noted: • That he has witnessed the dumping of feces and provided photos of the activity on his phone. • He is unsure of the source of water feeding his well and has not been notified by the vendor who services his water supply, and that the disposal of waste is a potential health threat. Mr. Rankin testified: • That the Aiello’s house has 9 animals on site including 4 emotional support animals and a pig who spends a majority of time in the home and is litter trained. • The pig will reach a weight of 30 – 40 pounds when full grown. • The Land Development Code prohibits keeping of hogs, but does not mention a prohibition on pigs. • Webster’s’ Dictionary defines a hog as a domesticated swine especially when weighing more than 120 pounds and a pig as a young domesticated swine usually weighing less than 120 pounds. • The minutes from the DAS meeting contains discussion that pot belly pigs are allowed under the Land Development Code. Ms. Aiello testified: • That her daughter has a disability and suffers from peer pressure and anxiety and her therapist recommends the pig remain in the home. • Ms. Aiello suffers from anxiety as well and harbors 9 animals – 3 full size horses, a miniature horse, a miniature cow and a miniature donkey, 2 lambs and a pig. • She has worked with the Moros to address issues including paying for cleaning of their lanai and notifying them when she is going to “drag” the property. • She does not pile the manure in a specific area, rather spreads it out. • Previously there was a dumpster on site for removal of the waste, however it was ordered to be remove after neighbor complaints. November 2, 2018 5 • She has obtained leases from two landowners to the south of her property which may be freely accessed by her animals. These owners do not maintain livestock on site. Mike Bosi, Director of Planning and Zoning was allowed to testify following discussions by the parties. He reported: • That the County does not provide a distinction between a hog and a pig as all are considered part of the “swine” family and this is the first time this issue has been raised to the best of his knowledge. • Section 2.03.01 B.1.b.4 of the LDC states “Keeping of horses and livestock (except for hogs), not to exceed two such animals for each acre,” • According to the LDC requirements the Aiello’s are allowed to house 5 livestock animals on their 2.5 acres property, and the pig is not allowed. During Mr. Rankin’s questioning he noted there is no language in the Land Development Code that includes leased land under the same conditions as owned parcels. Mr. Rankin wished to introduce evidence the County Ordinance may be in violation of the Fair Housing Act and Americans with Disability Act. Special Magistrate Garretson noted the case involves whether or not there is a violation of a County Ordinance and the relevance of a County Code’s conformance with Federal or State Laws is an argument for a different forum. Mr. Rankin argued: • That there is not a distinction under property law bundle of rights for owning and leasing land and the Aiello’s control enough lands to house the 9 animals. The Land Development Code doesn’t differentiate between owned and lease lands. • There is no testimony the pig is a nuisance and the minutes from the DAS meeting indicated that pot belly pigs are allowed under the auspices of the LDC. • Agriculture uses under the LDC allow pigs on lands under 20 acres in size. Assistant County Attorney Noell argued: • That the definition of a hog is a domesticated swine and any animals in the swine family related to a “domesticated swine” would include a pig. • The 2.5 acres of ownership only allows 5 animals to be housed on site. Leasing property does not constitute ownership of property under the LDC and even though adjacent land is leased by the Aiello’s, there is still a violation of County Codes. • The smell emanating from the property is also an issue. Mr. Rankin stated that the charging document for the case was not valid as it cites a pig, as cited in the relevant Sections of the Land Development Code. Special Magistrate Garretson noted this issue should have been brought forth before the case was heard. Special Magistrate Garretson took the case UNDER ADVISEMENT. B. EMERGENCY CASES None November 2, 2018 VII. NEW BUSINESS A. MOTION FOR REDUCTION/ABATEMENT OF FINES None B. MOTION FOR IMPOSITION OF FINES AND LIENS None VIII. OLD BUSINESS A. MOTION TO AMEND PREVIOUSLY ISSUED ORDER None B. MOTION TO RESCIND PREVIOUSLY ISSUED ORDER None IX. CONSENT AGENDA A. REQUEST FOR SPECIAL MAGISTRATE TO IMPOSE NUISANCE ABATEMENT LIENS ON CASES REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. Special Magistrate Garretson reviewed the cases cited in the Executive Summary and GRANTED the County's Request. B. REQUEST TO FORWARD CASES TO COUNTY ATTORNEY'S OFFICE AS REFERENCED IN SUBMITTED EXECUTIVE SUMMARY. Special Magistrate Garretson reviewed the cases cited in the Executive Summary and GRANTED the County's Request. X. REPORTS None XI. NEXT MEETING DATE—DECEMBER 7, 2018 at 9:00 a.m. There being no further business for the good of the County, the Hearing was adjourned by Order of the Special Magistrate at 11:19 A.M. COLLIER COUNTY SPECIAL MAGISTRATE HEARING rt ._ ,1 nda C. Garretson, cial Magistrate The Minutes were a roved by the Special Magistrate on �2C2 r' 1 as presented V , or as amended 6