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CEB Minutes 06/10/1991 1991 Code Enforcement Board Minutes June 10, 1991 CODE ENFORCEMENT BOARD OF COLLIER COUNTY DATE: June 10, 1991 TIME: 8:00 P.M. PLACE: 3rd Floor Boardroom, Building "F", Collier County Government Center, Naples, Florida SEB STAFF PRESENT ANDREWS X CLARK X VARIE X SMITH X LAZARUS X CACCHIONE X PEDONE X VALCARCEL STRAIN X BAGINSKI X WILLIAMS ABS ALSO REPRESENTING THE COUNTY: Bruce Anderson of Young, van Assenderp, Varnadoe & Benton, P.A. MINUTES BY: Wanda Arrighi and Debby Farris, Deputy Clerks CALLED TO ORDER AT: 8:00 A.M. ADJOURNED: 5:20 P.M. PRESIDING: Monte Lazarus, Chairman ADDENDA TO THE AGENDA: None Page 1 -- ~ CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA tdi~NQA Date: June 10, 1991, at 8:00 o'clock A.M. 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 N/A 4. PUBLIC HEARINGS A. Continuation of Board of County Commissioners vs First Assembly of God Church of Naples, Florida, Inc. CEB # 91-013 5. OLD BUSINESS N/A N/A N/A 6. NEW BUSINESS 7. REPORTS 8. NEXT MEETING DATE Thursday, July 25, 1991 9 . ADJOURN CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0, 1 99 1 *** NOTE: Received for the record at the end of the June 10, 1991, hearing Composite Exhibits B, D, and F which were presented at the May 30, 1991, hearing. *** CASE NO: CEB 90-013 RESPONDENT: First Assembly of God of Naples, Florida, Inc. LOCATION OF VIOLATION: 2132 Shadowlawn Rd., Naples, FL VIOLATION: Ordinance 82-2, Section 10.2 and 10.7; Ordinance 90-75, Section AI03.1.1.1 and Section A107; Ordinance 82-2, Section 13, Subsection 13.1e; Ordinance 89-06, Section 5; Ordinance 82-2, Section 7.12 b4 COMMENTS: Bruce Anderson identified himself as serving as special counsel to Collier County. Mr. Lazarus noted that although the minutes from May 30, 1991, have been received, a motion for approval will not be made today. Mr. Lazarus informed that council for the First Assembly of God has filed a motion to recuse the County Attorney from serving as legal advisor to the Board, based on a Board of County Commissioners meeting on March 12, 1991 in which certain instruc- tions were given directly by the Board to the County Attorney. After reviewing the motion, Mr. Lazarus has found that there is just cause for the motion; therefore, the County Attorney is hereby recused, leaving the CEB with no legal counsel at this time. Mr. Lazarus advised that after reviewing cases regarding constitutional issues in the State of Florida and elsewhere, it is apparent that the Code Enforcement Board is not competent and is not empowered to handle these issues; however, testi- mony on the subject will be heard and a record developed, but the constitutional issues will be decided upon by a Court of Law. Mr. Anderson and Mr. Kramer acknowledged this fact; however, Mr. Page 2 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Anderson registered an objection to any discussion or testimony concerning constitutional issues. Mr. Lazarus asserted that if the Board requires legal advise during the proceedings, the meeting will have to be continued until which time they can secure legal counsel. For the record, Attorney Anderson expressed no objection to the continuation of today's pro- ceedings if the Board finds they need legal coun- sel. Attorney Kramer commented that if the Board plans to continue based on said grounds, he wishes he had received notification before this morning. After discussion regarding Mr. Bruce McLaughlin testifying first, Mr. Kramer stated that his testi- mony will be deferred until later. Since Mr. Lazarus confirmed that the County will have the opportunity for rebuttal of the respon- dent's witnesses, Mr. Anderson deferred the first witness for the County, Ms. Cacchione, until later. Code Enforcement Supervisor Clark recalled Dr. Singer, Principal of Shadowlawn Elementary School, to testify. Mr. Clark provided Dr. Singer and Attorney Kramer a copy of Composite Exhibit F-2 for discussion. Mr. Clark explained that the purpose of Composite Exhibit F-2 is to support the County's claim that it has an obligatory responsibility to the community regarding their health and safety. Attorney Kramer opposed the introduction of Composite Exhibit F-2 on the grounds that it is not relevant to the case and is hearsay. Mr. Clark noted that this exhibit is far stronger than hear- say and will be substantiated by further evidence regarding its relevancy. Mr. Lazarus stated that the evidence will be heard, but emphasized that a relevancy must be established. Mr. Anderson pointed out that the testimony relating to the exhibit will be relevant in showing the changed conditions of the neighborhood since the homeless shelter was established. In response to Mr. Kramer, Mr. Lazarus declared that testimony will be heard in reference to Composite Exhibit F-2, and Mr. Kramer is free to object. Page 3 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. Clark reminded Dr. Singer that she is still under oath and requested that she state her quali- fications and background. Dr. Singer testified that she is the principal of Shadowlawn Elementary School, has a Bachelor's degree in Elementary Education, a Master's in Admi- nistration Supervision, and a Doctorate in Admi- nistration Supervision, with 26 years in education and 5 of those years at Shadowlawn Elementary School. In further response to Mr. Clark, she explained that Composite Exhibit F-2 is a result of a meeting at the school regarding the situation of the homeless where the parents of the children attending Shadow lawn school requested that the petition be presented to indicate their concerns about the safety of their children attending this school because of the homeless shelter across the street from the school. Mr. Kramer voiced his objection to this testimony on the grounds of hearsay. Mr. Lazarus responded that the testimony will be allowed. Dr. Singer responded to Mr. Clark's question by stating that one parent called specifically claiming that her son had been accosted on the school's basketball court after school at 4:00 P.M., another parent called to say her daughter was accosted on the way home from school, and some of the children have witnessed urination on the school grounds as they were leaving in the afternoon. She noted that these types of incidences as well as trespassing on the school grounds has increased within the last six to eight months since the home- less shelter opened which leads her to believe there is a direct correlation. Mr. Strain questioned whether the people who signed the petition, referred to as Composite Exhibit F-2, actually witnessed an act of violation by people who they feel are from the shelter? Dr. Singer advised that the signatures were from people who wish to express their feelings on the condition of the area but are not actual witnesses. She added that although some of the signatures are by people who do not live in the immediate area of the school and only know of the situation by meetings and word of mouth, most of the signatures are by parent of Page 4 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 the school children who have relayed their experiences to them. In response to questions by Mr. Clark, Dr. Singer communicated that since the existence of the home- less shelter there has been an increase of litter, i.e. beer cans and bottles; and on approximately six occasions she personally found evidence of uri- nation and defecation on the school grounds when she arrived in the morning which pose a health and safety problem for the children. Dr. Singer responded to Mr. Kramer's question by stating that the homeless shelter opened at the end of November or the first of December, 1990, to the best of her recollection. She advised that she was aware of the shelter at first because of the number of people congregated around the church and a newspaper article. As to Mr. Kramer's question regarding whether the people from the shelter would use the school grounds rather than use the bathroom facilities in the shelter, Dr. Singer specified that she cannot say that those people have done this, only that it has been done. She continued that before the shelter existed, she would find maybe one or so beer cans on the school property on a Monday morning; but since the homeless shelter opened, she has found beer cans, glass, and bags of garbage constantly. The basis of her opinion that these acts have been committed by the people from the homeless shelter, Dr. Singer asserted, stems from the fact that there are now many more people walking around the school who do not seem to have a place to go. Dr. Singer advised that if the subject people are on the school grounds, she will phone the police who do respond. Responding to further questions by Mr. Kramer, Dr. Singer informed that school has a parent/teacher organization meeting once a month, a school advi- sory committee meeting four times a year with 50% of these meetings addressing the concerns regarding the homeless shelter and possible solutions. She affirmed that Mr. Clark did attend the school advi- sory committee meeting, however, Advisory Chairman, Margaret Perry, presided over the meeting. Page 5 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Dr. Singer noted, in answer to Mr. Kramer, that action taken by her against the situation has been to call the Sheriff's Department, posting no trespassing signs and installing a gate. In reference to Dr. Singer's earlier testimony regarding the two children being accosted, she stated that she was not present at the time of the incidences and could not identify whether the offending person came from the shelter. Dr. Singer responded to Mr. Kramer that one of the PTO parents typed the petition and the letter on page seven of the noted Composite Exhibit F-2. She indicated that there was a discussion regarding providing a petition at one of the meetings, and at that time she stated that she had no problem with it; however, she did not have any personal input into the said exhibit. Dr. Singer confirmed to Mr. Anderson that she had some dates and records of recent incidences at the school which were mentioned at the CEB meeting of May 30, 1991, and since that time has recorded two more incidences. She affirmed that at the beginning of the school year which began one week before labor day, 1990, there was not the degree of loitering and littering as there has been since January, 1991. After Mr. Lazarus pointed out similarities in some of the signatures on the petition noted as Composite Exhibit F-2, he stated that a portion of this exhibit will not be accepted into the record as evidence because of the indication that some of the signatures were written by the same person and that this same portion of the exhibit refers to changes in zoning and is not directed at viola- tions. He noted that the letters provided in the exhibit dated May 23, 1991, will be received into evidence, and page 1 through 5 and pages 8 through 16 will not be received. In answer to Mr. Clark, Dr. Singer informed that she was told by a parent that while waiting in front of the school by the flag pole for her child, a man exposed himself to her and urinated in the bushes. Dr. Singer disclosed that the flag pole is directly across the street from the homeless shelter. Page 6 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Dr. Singer replied to Mr. Kramer that before the homeless shelter existed incidences such as the one just mentioned did not happen. Mr. Constantine questioned in the same reasoning as Mr. Kramer used when asking if a person would walk to the school grounds rather that use the bathroom provided at the shelter, since alcohol is banned at the shelter would the people going to the shelter not discard their alcoholic beverages before they arrived at the shelter? Mr. Kramer answered that this would be a possibility, but does not not see this as realistic. Mr. Kramer pointed out that there has been no correlation established between the people staying at the shelter and what has transpired at the school property. Dr. Singer responded to Mr. Clark that in her discussion with Rev. Mallory, he stated that the shelter did not accept any homeless if they were on alcohol or drugs, but did not state what the shelter did do with these people if they came to their door. In answer to Mr. Strain's question, Dr. Singer stated that the shelter was open legitimately one morning because of the cold weather. Although Mr. Kramer objected, Mr. Lazarus allowed Dr. Singer to respond to Mr. Clark's question to which she answered that some parents have indicated to her that they are thinking about removing their children from Shadowlawn Elementary School. In response to Ms. Ornowski, attorney for the respondent, Mr. Lazarus indicated that the addi- tional witnesses by the County regarding safety will be allowed. After being sworn in by Ms. Valcarcel, Judy Blake provided her address and described her property to be approximately 200 feet directly behind the First Assembly of God. She informed that she has lived in the immediate area since 1960, and since November, 1990, there has been a fear in the neigh- borhood because of the different incidents that have happened by transient people. Page 7 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In response to Mr. Kramer's objection, Mr. Anderson stated that Ms. Blake is testifying to what is happening in the neighborhood, and Mr. Lazarus noted that the testimony will be heard. Ms. Blake described two incidents which she wit- nessed and occurred on her property, one being three men in her back yard who she had to ask to leave, she did phone the police but received no response, and has concerns that these men will return to do harm to property or family members. Another incident, she explained, involves finding two drunk men in her front yard in the afternoon who were urinating on each other and had to be removed by the Sheriff's department; and she added this kind of behavior is not something she wants her ten year old daughter to witness. She noted that other incidents have occurred in the neigh- borhood which have increased the apprehensiveness of the residents. . In response to Mr. Kramer, Ms. Blake remarked that before there was this shelter they did not have the number of men trying to sleep in the yards of the neighborhood. She indicated that since October, 1990, she has become afraid not only for her own safety but also the safety of her daughters, age ten and thirteen, and her son, age fifteen. Mr. Kramer presented to Ms. Blake what has been marked as Respondent's Exhibit D and asked her if she remembered testifying before the Board of County Commissioners in 1988 regarding a petition for a provisional use for a shelter for abused women? Ms. Blake confirmed that she did remember. Mr. Kramer requested that Ms. Blake read from page 72 of Exhibit D which he explained is her testimony from the 1988 hearing before the Board of County Commissioners. Mr. Lazarus requested that there be a break at this time to allow Mr. Anderson, Ms. Blake, and the Board to read over the testimony provided by Mr. Kramer as Respondent's Exhibit D. *** Recess: 8:55 A.M. - Reconvened: 9:00 A.M. *** Ms. Blake replied to Mr. Kramer that in 1988 she was against the shelter for abused women opening in Page 8 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 199J her neighborhood; however, the problems were dif- ferent with this shelter in that they were dealing with angry husbands, and this shelter has improved their expertise of operation. The issues with the homeless shelter is that since late October or early November, 1990, there has been an additional fear brought into the neighborhood by the increased transient, drunk people walking around. She believed that the time of year indicated was the same time the homeless shelter was opened as it was at this time an increase of transient type people began walking down the street toward and entering the First Assembly of God. She testified that at times there would be up to fifteen men waiting out- side the back door of the church for whatever reason. Ms. Blake responded to Mr. Kramer's question regarding whether she objected to the shelter because it sheltered men, by stating that she has not seen any women entering the church other than what she has seen in the newspaper. Ms. Blake explained for Mr. Kramer that to her a transient person is one who appears not to have a place to belong and is generally not well kept in appearance, and added this is the type of person she has been experiencing an influx of into her neighborhood. She asserted that she does object to helping these people in her neighborhood because of the fear it is causing as well as the decrease of property value caused by these transients. Mr. Kramer advised Ms. Blake that there are laws regarding nuisances which she could f~le against the church to which Ms. Blake commented that if that is what is necessary then she will do this to protect the safety of the children and adults of the neighborhood and the property. She affirmed that safety for the neighborhood was the purpose of her complaint in 1988 against the shelter for abused women. Mr. Kramer requested that Respondent's Exhibit D be introduced into evidence which is the transcript of the proceedings to which Ms. Blake testified in 1988. In response to Mr. Anderson, Mr. Kramer stated that the purpose of this evidence is that it Page 9 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 shows testimony by Ms. Blake on prior occasion for a similar experience. Mr. Kramer affirmed to Mr. Lazarus that the subject testimony is a matter of official record; there- fore, Mr. Lazarus reported that they will take official notice of it, and it will not be intro- duced into evidence. In response to questions by Mr. Strain, Ms. Blake noted that she was not aware of the request for a provisional use in 1983, although she thought she would have received a notice of this intent because she lives within 300 feet of the church but did not. She confirmed that she did receive a notice for the provisional use for the shelter for abused women. In response to Mr. Strain, Ms. Blake noted that she was not pleased when the County allowed the shelter at the church as a cold weather shelter, but she was not consulted as to her opi- nion at the time; however, she understands the cold weather shelter was not to be used for the homeless per se but for families who lost electricity or during hurricanes. Ms. Blake responded to Mr. Strain that when the church moved to its present location in 1956 the area was sparsely populated, and it was not until after 1960 that further development began to take place. Mr. Strain inquired as to whether the two men Ms. Blake described as drunk and disorderly in her front yard were charged with anything by the police who picked them up? Ms. Blake responded that she did not know of anything they were charged with. After being sworn in by Ms. Valcarcel, Mr. Larry Ingram stated that he owns the shopping center where the East Naples Sheriff's Department is located, and indicated that over the past year this shopping center has experienced considerable problems with the homeless. After calling the police regarding one incident, Mr. Ingram reported that the individuals involved gave their address as the First Assembly of God to the police. Page 10 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. Kramer objected on the grounds of hearsay, to which Mr. Ingram stated that he did personally hear the response. Regarding another incident where Mr. Ingram was called because someone was drunk and asleep on the shopping center property, he related that when the police arrived and asked this individual where he was staying, the answer was St. Matthew's House but he had been kicked out because he was drunk. Mr. Ingram pointed out that this is a continuing trend in this neighborhood and has gotten worse in the last six months. He stated that he feels that the First Assembly of God and St. Matthew's House are the cause for the attraction of this type of person to the area. Mr. Ingram informed for Mr. Kramer that the address of his shopping center is 2740 Bayshore Drive, and Bayshore Drive is an extension of Shadowlawn Drive on the opposite side of U.S. 41. Mr. Ingram advised that his shopping center is zoned commer- cial; however, immediately across the street is zoned residential. In regards to Mr. Kramer's question as to a solu- tion, Mr. Ingram suggested a strictly enforced vagrancy statute by the County. Mr. Lazarus reminded Mr. Kramer that this is getting astray from the violations in question regarding the safety of the neighborhood. Mr. Ingram specified in response to Mr. Lazarus' question that the shopping center consists of a poodle trim shop, beauty parlor, copy center, cera- mic shop, the County's employee credit union, print shop, embroidery shop, and the East Naples Substation. After being sworn in by Ms. Valcarcel, L~eutenant Riley stated that he has been employed by the Collier County Sheriff's Department for seventeen years and is currently in charge of the East Naples Substation patrol section. He confirmed that this substation is approximately a quarter of a mile from the First Assembly of God. He advised that since November of 1990 the substation has recorded 537 incidents involving transient people of which Page 11 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 350 of these people have gone to jail for various reasons. Specifically regarding problems at the First Assembly of God, Lt. Riley informed that he is not aware of any; however, there have been six incidences reported at Shadowlawn School involving indecent exposure, trespassing, and drunkenness. In Mr. Clark's attempt to introduce into evidence Composite Exhibi~ =, Mr. Kramer pointed out that this exhibit has already been objected to. Mr. Clark stated that he will endeavor to show the relevance of the subject exhibit. Mr. Lazarus asked Mr. Clark to proceed. In response to questions by Mr. Clark, Lt. Riley -explained that his office did create a document of transient complaints which lists the date, case no. signal, location, complainant information, and an identification number and is noted as Composite Exhibit C. Lt. Riley noted that Case No. 13399 on page six of the subject document involved a distur- bance at the First Assembly of God which listed the complaint as "kicking one of them out of the church". He concurred that this reference is in regards to one of the transients staying at the subject church. Lt. Riley confirmed that the complaints listed in the document are all within walking distance of the First Assembly of God. He specifically referred to Case No. 7191 on page three of the document as requested by Mr. Clark, and stated that the subject was arrested for trespassing on Shadowlawn School property as was the person involved in Case No. 7191-91 on page four. Lt. Riley testified that there has been an increase in transient related incidents in the East Naples area. Responding to Mr. Kramer, Lt. Riley advised that the transient complaints form has been used over the last year and a half and added that this is an area where the complaints have increased over the last two years. He indicated that the problems are caused by the transients. Lt. Riley advised in reply to Mr. Strain that the transients do increase in the winter months of January, February, and March because of the colder weather in the north. He noted that other substa- tions do not have the same problems the East Naples Page 12 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Substation has with transients. Lt. Riley described a transient as a person with no permanent address. Mr. Lazarus accepted into evidence Composite Exhibit C. Mr. Kramer objected as to the relevancy of Composite Exhibit Cl which is a booking/arrest report which Mr. Clark suggested be introduced into evidence. Although Mr. Clark claimed its relevancy to be that the address given by the individual arrested is the First Assembly of God, Mr. Kramer maintained that the subject exhibit is not per- tinent. Mr. Lazarus advised that Composite Exhibit Cl will not be admitted into evidence because of the fact that there is no conviction in the noted arrest, the alleged act was not committed in the area of the First Assembly of God, and there are too many questions regarding the subject arrest. Mr. Anderson stated that an attempt to reintroduce Composite Exhibit Cl will be made later when there is more of a foundation of evidence provided. In response to Mr. Clark, Lt. Riley affirmed that homeless shelters do attract transients and are the cause of the types of problems the subject area is experiencing. Lt. Riley acknowledged, in response to Mr. Kramer's question, that the subject area does draws tran- sients due to the labor pools present and the housing available to them. Lt. Riley indicated that some of the transients are coming from out of state, but even without the shelter there will still be the transient problems. After being sworn in by Ms. Valcarcel, Mr. Chip Michael related that he lives at 2511 Minorka Avenue and has lived at this address approximately one year. In response to Mr. Clark, Mr. Michael disclosed that he has reported many complaints to the Sheriff's Department which are on record. He explained that most of the complaints involve drinking on his property or in front of it. He informed that he has personally watched drunk Page 13 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 people stumble or ride their bicycles to the church and enter it. He explained that from his house he can see the back of the First Assembly of God. He has witnessed urination and defecation next to his property where it is commercially zoned. He noted that the property next to his has been cleared to attempt to deter the transients; however, this has removed the buffer he had from the commercial area which in turn reduces the value of his property and has not done much in the way of deterring the tran- sients. He described specific incidents to include loud music being played very early in the morning next to his house, being threatened with the com- ment to get back into his house if he knew what was good for him as well as other threats, tools being stolen from his property, drunkenness, and disor- derly conduct. He informed that he asked one intoxicated person directly where he lived, and was told the First Assembly of God where Mr. Michael personally watched him go inside. He indicated that he and his wife have reported 50 to 60 complaints themselves regarding the transients on their property or in the neighborhood. He affirmed that this problem has increased over the last six months. He alleged that his neighbors have been experiencing these same problems, and they have also filed police reports. In response to Mr. Kramer's questioning, Mr. Michael stated that the outcome of his complaints have resulted in some of these people being jailed for trespassing. Mr. Michael clarified that he did not say that the 50 to 60 complaints were directly tied to the First Assembly of God; however, many were. He provided specific details of three occurrences where the transient person involved gave the First Assembly of God as their address or he visually watched the individual go into the church. After being sworn in by Ms. Valcarcel, Vickie Townsend stated that she is a parent of two children attending Shadowlawn School. In response to Mr. Clark, Ms. Townsend informed that while waiting for her children to get out of school, she witnessed two individuals coming from the back of the First Assembly of God, walk down the sidewalk with beer in hand, and within public view of the school proceed to urinate in the bushes. Page 14 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In answer to Mr. Kramer, Ms. Townsend cited that although the police were called, the Sheriff's department indicated that nothing could be done about it because they did not witness it. Regarding Mr. Clark requesting to recall Mr. Smith and submit evidence for the record, Mr. Lazarus stated that if Rev. Mallory does not testify then Mr. Smith can be recalled. Mr. Kramer pointed out for the record that the violations the church is being charged with do not include operating a homeless shelter. Mr. Anderson emphasized that the charge includes a change in the use. Mr. Kramer clarified that the charge is not a change in use but rather a change in occupancy. Mr. Lazarus interjected that at the conclusion of all the testimony he would like to have a summation from Mr. Clark and Mr. Kramer of ten minutes con- fined to the questions of violations only. He added that there are to be no constitutional issues involved in the summation. Because of the question of authority indicated at the CEB meeting of May 30, 1991, Mr. Anderson requested that Mr. Ken Baginski, Planning Services Manager, be recalled for testimony. In response to Mr. Anderson, Mr. Baginski stated that his authority as Zoning Director is found in Section 12 of the Zoning Ordinance which indicates that the Zoning Director shall make interpretation to the ordinance. Regarding the uses for the church, Mr. Baginski stated that he interpreted the Zoning Ordinance as to mean that a homeless shelter is not classified as an accessory use for a church. Mr. Baginski indicated that to his knowledge no appeal as to his interpretation regarding accessory use has been filed, and advised that the First Assembly of God does have 30 days to file this appeal from receipt of the letter they received addressing this matter. In response to questions as to the jurisdiction of the CEB over this case, Mr. Lazarus asserted Page 15 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 that this Board does have the jurisdiction to decide whether a violation or violations have occurred. Mr. Baginski answered Mr. Anderson by stating that in his opinion the homeless shelter was not authorized for an operation requiring a provisional use which needs the approval of the Board of County Commissioners and, therefore, the church is in violation. Mr. Baginski disclosed that he attended a meeting with Mr. Clark and Rev. Mallory of the First Assembly of God where the County provided the Church with copies of a proposed ordinance addressing homeless shelters, provided the County's opinion as to what would be an acceptable use, and advised the Church that they could apply for a pro- visional use. Mr. Baginski could not exactly iden- tify whether this meeting was held before or after the notice of violation which was issued about May 14, 1991 to the First Assembly of God. In explanation as to the differences of a principal use and a provisional use, Mr. Baginski explained that a principal use is a use within a specific district that is allowed as a matter of right without any specific approvals or additional appro- vals being provided by the Board of County Commissioners during the petition of public hearing, i.e. a group care facility, category 2. However, he added that to have such a facility within a RMF-6 District, a provisional use applica- tion would need to be filed and the normal pro- cessing of the application would proceed with the proper public hearings and notifications made with a final decision by the Board of County Commissioners. Mr. Baginski noted that the respon- dent to his knowledge has not filed a provisional use for the homeless shelter. Mr. Baginski responded to Mr. Kramer's question by stating that if the Church's homeless shelter was in operation before April 19, 1991, then it was in operation before the enactment regarding homeless shelters or group care facilities. Mr. Baginski explained that grandfathering is a term applied when a use was in existence prior to adoption or amendment to an ordinance. Mr. Baginski noted that the application for a provisional use for the sub- ject church was accepted in 1983. Page 16 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 As to the first effective zoning ordinance, Mr. Baginski responded that he is familiar with a 1972, 1974, 1976, and 1982 amendment to the zoning ordi- nance only. In further response to Mr. Kramer's questions, Mr. Baginski indicated that he arrived at the opinion that the homeless shelter is not a accessory use of the church by reviewing the per- mitted principal uses within the district and the accessory uses and taking into consideration that the use is for a church. He advised that he made no physical inspection of the operation. In response to Mr. Strain, Mr. Baginski acknowledged that Mr. Kramer's letter dated April 17, 1991, regarding questions as to the First Assembly of God church's position was not answered. Mr. Baginski informed Mr. Lazarus that he does not have a reason for not answering the letter other than it was overlooked, and he apologizes for that. Mr. Baginski advised, in response to Mr. Strain, that if a structure were built on church property specifically for the use of a bingo hall, he would not find this a customary accessory use; however, if a structure is used for this purpose in a periodic manner for a specific activity, it could be considered as a customary accessory use. In response to Mr. Pedone, Mr. Baginski informed that anyone is entitled to file an appeal with the Board of County Commissioners if they object to his findings regarding their property. Mr. Baginski responded to Mr. Anderson's question by explaining that when rendering a decision regarding a permitted use within a district, he reviews the permitted principal uses for that district and its classification as well as the pro- visional uses and accessories. He added that he will also review other districts to see if the specific use in question is within the ordinance to define its location or acceptability in other districts. Mr. Anderson questioned whether a provisional use and an accessory use could be used in the same district to which Mr. Baginski could not think of a situation where this would happen nor did he find it reasonable. Page 17 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In response to Mr. Anderson, Mr. Baginski confirmed that the Collier County Zoning Ordinance does find a group care facility, i.e. homeless shelter, a separate use from a church. Mr. Baginski replied to Mr. Kramer's question about a day care center by stating that he would consider the use in the same manner as he did a bingo hall. *** Recessed: 10:30 A.M. - Reconvened: 10:40 A.M. at which time Deputy Clerk Farris replaced Deputy Clerk Arrighi *** After being sworn in by Ms. Valcarcel, John Witchger, Director of Guadalupe Social Services in Immokalee, confirmed that he has been a member of an ad-hoc committee for the homeless and that he is currently the Chairperson of the Advisory Committee for the Homeless appointed by the Board of County Commissioners for Collier County. He affirmed that the Committee is currently in the process of deve- loping a plan for the homeless. In reply to Chairman Lazarus, Ms. Ornowski stated that Mr. Witchger's testimony will establish that, as part of his committee's report, churches are being identified as part of the solution to the homeless and shelter problem. In response to Chairman Lazarus, Ms. Ornowski pointed out that one of the violations cited involves an illegal land use issue with county officials going on record in support of that violation that the church is operating something not customary and accessory to churches in this area, and yet there exists a committee that would argue otherwise. In answer to Ms. Ornowski, Mr. Witchger confirmed that the Advisory Committee report contained a tem- porary shelter and emergency shelter section within the housing portion of the plan. He stated that the committee recognized there are not adequate emergency shelter beds available in the county at this point and intended to recommend to the Board of County Commissioners that churches and super- vised camp sites be given provisional use as home- less shelters. Page 18 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In response to Ms. Ornowski, Mr. Witchger acknowledged that, in his opinion, administering a. homeless shelter is a customary and accessory use to a church. He stated that his church has been used as an emergency she:te~ for homeless people. In answer to Mr. Clark, Mr. Witchger stated he did not feel there is adequate provision for location of shelters or shelter beds under the current County Ordinances. Mr. Clark stated that it is possible to have a homeless shelter in an RMF-6 district such as that where the First Assembly of God is located, and then proceeded to question Mr. Witchger whether he would first suggest to someone that they try to legally obtain permits to do so before proceeding illegally. Chairman Lazarus reiterated that Mr. Witchger did not have to answer questions regarding illegality. In reply to Mr. Clark, Mr. Witchger confirmed that he has not seen Ordinance 91-34 which amends 82-02 and allows provisional use in an RMF-6 area for homeless shelters, but was last aware of the status of same during discussion and prior to the adoption of the Ordinance. Mr. Clark asked Mr. Witchger to characterize as a true statement the fact that he was not aware pre- vious to now that the First Assembly of God, in its present location, could apply for provisional use for a homeless shelter. Ms. Ornowski voiced objection to the relevancy of the testimony. She stated it has been established that Ordinance 91-34 was passed April 19th, after the church was cited for violations. She indicated the point of grandfathering has already been addressed. She stated that Mr. Witchger is not proffered as an expert witness but simply questioned as to what is customary and accessory as well as the contents of his committee's report. Mr. Clark countered that the church was cited May 14th and May 15th, and the Ordinance was passed April 18th or April 19th, which is before the church was cited. Page 19 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0 f 1 991 Mr. Anderson pointed out that Mr. Witchger is testifying as to the report of his committee when, in fact, the report has not been finalized and apparently has not been voted on by the committee as a whole, along with the fact that Mr. Witchger is the Chairman of the committee and apparently is unaware of an Ordinance being adopted that relates to the very matters his committee is concerned wi tho Ms. Ornowski objected stating that Mr. Witchger indicated he was aware of Ordinance 91-34 but not aware of the effective date it was adopted. In response to Mr. Strain, Mr. Witchger indicated that a "temporary shelter" was one sheltering an individual from ninety days to four or five months. He stated that when people are sheltered for longer than six months, it tends to be classified as "transi t ional hous:lng". In reply to Mr. Strain, Mr. Witchger stated that, except for the churches, there is not a lot of movement within the county to address the homeless issue. He indicated this tends to affirm that it is an appropriate role of the church to care for the homeless. Mr. Strain stated he is more concerned about the conditions on what churches could care for the homeless and where. He questioned whether it would open up the possibility of a lot of churches caring for the homeless or a minimal number based on the type of area they are located in, etc. Mr. Pedone asked Mr. Witchger whether the Guadalupe Center is located in an area zoned for the type of operation they have and, if not, how he proceeded to establish same. Mr. Witchger stated he is affiliated with Guadalupe Social Services; that there are four organizations located in his building, one of which is the Guadalupe Center; and that the building is located on the property of Our Lady of Guadalupe Church which he believes is zoned RMF-6 in Immokalee. Mr. Pedone questioned whether they had to get a provisional use for their operations, to which Mr. Witchger answered in the negative. Page 20 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. Witchger stated that the emergency shelter in Immokalee is a little different than in Naples. He added that in Immokalee there are flophouses, single room occupancy houses, and a shelter for the homeless, whereas Naples does not have flophouses or single room occupancy houses to his knowledge. In reply to Mr. Clark, Mr. Witchger confirmed that the study for which his committee based their recommendations did not deal with density or health safety issues. Mr. Witchger stated that it was his understanding that the County Ordinance provisions regarding the 100 sq. ft. does not apply to homeless shelters. After being sworn in, Bruce McLaughlin provided a resume supporting his background which was iden- tified as Respondent's Exhibit F, copy of which was not provided for the record at this time. In response to Mr. Anderson, Mr. Kramer verified that the witness is testifying on all zoning mat- ters relative to the proceeding. Pursuant to Mr. Kramer's request, Mr. McLaughlin proceeded to define a comprehensive plan. Mr. Anderson objected to any testimony proffered on the comprehensive plan, adding that there has been no charge involving a violation of same and there- fore it is irrelevant. In response to Mr. Kramer, Mr. McLaughlin stated that the statutory mandate for the comprehensive plan for most local governments, including Collier County, is Chapter 163 of the Florida Statutes. He confirmed that there are different elements to the comprehensive plan and proceeded to identify same. Mr. Kramer questioned the relationship between the comprehensive plan and land development regula- tions. Mr. McLaughlin stated that the comprehensive plan is an umbrella policy document from which land development regulations emerge. He advised that the land development regulations must be consistent with the comprehensive plan and, if not, the Page 21 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 comprehensive plan will govern in lieu of the land development regulations. In response to Mr. Kramer, Mr. McLaughlin stated that the housing element contained policies which clearly support a finding that the homeless shelter is a customary accessory use to the church, and that policies contained within the land use element also support that finding. In reply to Mr. Kramer regarding the relevance of the housing element to this consideration, Mr. McLaughlin stated that Ordinance 91-34 specifically links homeless as a group care facility so that all of the policies of the housing element, with respect to group care facilities, govern this par- ticular use. He referred to page 17 of Ordinance 91-34. In response to Mr. Kramer regarding what portion of the housing element supports the use of the subject church as a homeless shelter, Mr. McLaughlin ahswered that Objective 1.2 with its implementing policies does, and he proceeded to read same. He read Objective 1.4 and commented that if there were adequate sites, there would be no homeless. He read Policy 1.4.1. He stated that Objective 1.7 is perhaps the most critical as it actually deals with group homes. He stated that Ordinance 91-34 clari- fies that a homeless shelter would be in the cate- gory of a group home. Mr. McLaughlin stated that the only way the issue of location in predetermined areas of group homes could be addressed to this point is by the proper interpretation of "customary accessory use". He stated that the homeless shelter is, in fact, a customary accessory use to the church. Mr. Lazarus questioned the basis of Mr. McLaughlin's testimony and his expression of "proper interpretation". Mr. McLaughlin conf irmed that "proper interpreta-- tion" means an interpretation that has been used elsewhere to the best of his expert knowledge. Mr. McLaughlin read Objective 2.1 of the Housing Element of the Growth Management Plan. He Page 22 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 reiterated the fact that there are homeless in the county is an indicator that there is not adequate housing for low income households. He stated he feels Policy 1.7 is the critical policy for the location of group homes. Mr. Kramer asked whether there are policies elsewhere in the Comprehensive Plan that support the church's use. Mr. McLaughlin referred to the land use element's first goal. He also referred to the Future Land Use Map, which was amended in February of this year. He stated that the urban designation also accommodates future nonresidential uses, including essential services as defined by the most recent Collier County Zoning Ordinance. He indicated it is of paramount importance that other permitted nonresidential land uses may include those listed. He stated that his testimony later will hopefully clear up the point that, in his opinion, the home- less shelter is a customary accessory use. He stated a church is one example of a community faci- lity as well as the school across the street. He commented that in the immediate instance there is a cluster of community facilities, all consistent. He indicated he did not see the standard policy regarding land uses being prohibited that would result in a degradation of a neighborhood but, even if included, in his opinion there is nothing to indicate that the use of the church as a homeless shelter in that neighborhood results in degrada- tion. Referring to the Comprehensive Plan, Mr. Kramer questioned whether there are policies elsewhere that directly oppose the church's use, to which Mr. McLaughlin answered in the negative. In response to Mr. Kramer, Mr. McLaughlin referred to an aerial photograph depicting some single family, multi-family, public uses mentioned earlier and confirmed that the church, school and water tanks create a cluster of institutional com- munity uses in a mixed use area. He agreed that there are uses in the area that might be considered as locally unpopular land uses and, in fact, are more apt to be the source of the people about whom complaints have been made than the homeless shelter. Page 23 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10 I 1991 Pursuant to Mr. Kramer's request, Mr. McLaughlin expressed his opinion of the land use effect of the church as a homeless shelter by stating he feels it is consistent with its immediately adjacent uses, is consistent with the area, and that it has no negative impact on the adjacent area or the neigh- borhood. In response to Mr. Kramer, Mr. McLaughlin read the definition of provisional use and criteria for approval of same contained in the Zoning Ordinance prepared in March of 1989. He requested the oppor- tunity to review any relevant amendments. In answer to Mr. Kramer regarding special exception to a provisional use, Mr. McLaughlin stated that, if incorporated by reference, the site plan has the force and effect of law and it is a part of the approval and adherence to it is required; if a more general statement based on the site plan, then it is a guidance and, if no statement, it has no force and effect. He confirmed that in the case at hand the role of the site plan is absolutely "zilch", and that there is no reference to it in any of the documents he has obtained for review. Mr. McLaughlin provided a petition from a church in Pinellas County for which he did a special use. Mr. Anderson voiced objection. Chairman Lazarus stated that the objection is sustained. Mr. Kramer proffered the petition prepared by Mr. McLaughlin as Respondent's Exhibit G, copy of which was not provided for the record. In response to Mr. Kramer, Mr. McLaughlin verified that he reviewed a copy of an Affidavit prepared by a county planner which included Ms. Blake's name on the list of those notified of the provisional use. In reply to Mr. Kramer, Mr. McLaughlin acknowledged that the Zoning Ordinance contained various defini- tions but not terms such as "reasonable implica- tion" and "customary". He indicated that the absence of most of the definitions creates a vagueness problem with the Ordinance. He voiced Page 24 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0, 1 991 his opinion that the accessory use of a portion of the church as a homeless shelter does comport with the definition of accessory use found in the Zoning Ordinance and that it is a customary accessory use. In answer to Mr. Kramer, Mr. McLaughlin acknowledged that churches are customarily used as emergency shelters and that the Collier County Cold Weather Shelter Policy names churches for such use. Mr. Anderson voiced objection to part of Mr. McLaughlin's testimony on the grounds that he has not been tendered as an expert on social services. Chairman Lazarus stated Mr. McLaughlin could con- tinue. Mr. McLaughlin stated that literature on homeless people indicates one of the reasons for home- lessness is natural disasters as well as economic problems, etc. He referred to a state study which indicates a source of homelessness is weather related or natural disaster related. In reply to Mr. Kramer, Mr. McLaughlin verified that the definition of the complete phrase "customary accessory use" is not contained in any Collier County document he has reviewed. He added that the accessory use definition contained in the Zoning Code is the only one helpful, although the contrast to the definition of dwelling unit is also useful. Pursuant to Mr. Kramer's request, Mr. McLaughlin confirmed that, in his opinion, a homeless shelter is a customary accessory use to a church, and provided the basis for his belief. Mr. McLaughlin presented a multi-page document at this time and proceeded to make various references to same stating that the first page of the exhibit is a copy of Florida Statutes 420, the 1989 version which was not amended by the 1990 report. Mr. Kramer requested the document be identified as Respondent's Exhibit HI copy of which was not pro- vided for the record. Referring to Exhibit H, Mr. McLaughlin concluded that, by state statute definition, a homeless per- Page 25 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 son is someone who has a nighttime residence in a church and, from the backup to the Pinellas County housing element, that 80% of the homeless shelters in the county are churches. He referred to that part of the exhibit regarding the St. Petersburg area comprehensive plan dealing with the homeless and indicating that of 44 homeless shelters, only 7 are not in churches. Mr. Anderson voiced objection stating that without a copy of the City of St. Petersburg Zoning Ordinance Mr. McLaughlin's comments could not be verified and were therefore speculation. Mr. Kramer stated that it is not speculation but testimony which is subject to cross examination. Chairman Lazarus stated that he could continue bl1t added that Respondent's Exhibits G and H have not been admitted into evidence and mayor may not be. In response to Mr. Kramer, Mr. McLaughlin confirmed that, in his opinion as a planner, the application of the Ordinance prohibiting the use of. the church as a homeless shelter is an arbitrary and capri- cious act. Chairman Lazarus interjected that Mr. McLaughlin was starting to reach legal conclusions for a planner. Mr. Anderson voice~ objection stating that Mr. McLaughlin is not qualified to do so. In response to Mr. Anderson, Mr. McLaughlin relayed his experience in utilizing the Collier County Comprehensive Plan. Pursuant to the request of Mr. Anderson, Mr. McLaughlin read Policy 1.7.2. Mr. Anderson questioned whether Mr. McLaughlin was aware of various social service facilities that exist, to which he confirmed knowledge of one simi- lar shelter existing in the community. Mr. Kramer stipulated that possibly when the Salvation Army facility is in place it might take some of the burden off the church, but that does not exist today. Page 26 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. Anderson asked the Board to take official notice that the Board of County Commissioners has adopted an Ordinance authorizing a Salvation Army Center. Mr. McLaughlin commented that there are three or four uses in the entire community and that does not strike him as an undue concentration, particularly compared to Immokalee. Mr. McLaughlin verified for Mr. Anderson that he has not studied the other planning communities in Collier County. He added that the Zoning Ordinance does not callout planning communities. Mr. Kramer voiced objection. Mr. Anderson referred to page LU-1-26 of the Future Land Use Element and questioned whether Mr. McLaughlin interpreted same to mean that shelters can go anywhere, to which Mr. McLaughlin answered that they can within the urban designation. He added that you could possibly be in the situation where there would be a conflict between the zoning districts and the Comprehensive Plan, in which case the Comprehensive Plan prevails. In reply to Mr. Anderson, Mr. McLaughlin stated that, if the zoning is inconsistent with the Comprehensive Plan, a community facility is per- mitted anywhere in the urban area. He added that if the Zoning Ordinance permits them, it is con- sistent with the Comprehensive Plan, but if it pro- hibits them, then you have to evaluate whether the prohibition is consistent with all elements, all policies, all designations of the Comprehensive Plan. He stated that if it is consistent with each, then the prohibition is consistent with the Plan and they would not be permitted. In response to Mr. Anderson, Mr. McLaughlin acknowledged that he considered a homeless shelter to be a community facility. He stated that if the ZOlling Code consistently with the Comprehensive Plan bars it, then the uses listed are not per- mitted anywhere in the urban area they choose to locate, but that if the Zoning Code inconsistently with the Comprehensive Plan bars it, they could and that if the Zoning Code permits it, they could. Page 27 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10 I 199J Mr. Anderson requested that Mr. McLaughlin provide an example of how the Zoning Code can consistently prohibit it, which Mr. McLaughlin proceeded to do. In response to Chairman Lazarus, Mr. McLaughlin stated that it could be required because it would be consistent with the Comprehensive Plan. He added he thought it improbable. Referring to the letter concerning Pinellas County, Mr. Strain asked whether the same church would have to appear before the Board for approval of a special exception to house the homeless, to which Mr. McLaughlin answered in the negative. He added that they would have to in order to expand the use to include a day care. In answer to Mr. Strain, Mr. McLaughlin replied he felt the government has a higher obligation to those becoming homeless as the result of some type of government action than to a transient. He stated the first policy he read from the Housing Element applies more strongly to this group than to the clientele of the First Assembly of God homeless shelter. He added that the policies later on apply more equally across the board. In reply to Mr. Strain, Mr. McLaughlin stated that Objective 1.7 and the two following policies apply equally to all groups, including transients coming in from other areas. Mr. McLaughlin confirmed for Mr. Strain that the term "transient" is not used. Mr. Constantine questioned whether the homeless shelters in Pinellas County run by churches went through a permitting process, to which Mr. McLaughlin answered that it was his belief they were accepted as part of the church use and that no additional permits were required. He stated his belief is based on his being present for some of their special exceptions, on a lack of controversy about them, and on working for two or three of them and knowing what their status is. In answer to Mr. Constantine, Mr. McLaughlin stated he knew it to be fact that in St. Petersburg the churches just opened their doors and started a homeless shelter and the City thanked them. Page 28 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In reply to Mr. Constantine, Mr. McLaughlin stated he did not have knowledge regarding required reno- vation to the shelters in Pinellas County to accom- modate the homeless, but thought some had to have partitions added. He stated he thought the renova- tions were below the value set requiring an inspec- tion but he did not know for sure. In response to Mr. Constantine, Mr. McLaughlin stated he doubted that his local police have a transient report like the one of Collier County Sheriff's Office. Mr. Constantine questioned whether the number of police reports filed for Mr. McLaughlin's building would approach the number filed for East Naples, to which he stated it would not in a raw number basis but that proportionately it might. In reply to Chairman Lazarus, Mr. McLaughlin verified that he was present during most of Ms. Blake's testimony, but that he was downstairs at the time she was testifying as to the economic effect of property in the area. Chairman Lazarus questioned whether customary use can vary from county to county across the state of Florida or if it is uniform throughout the state, to which Mr. McLaughlin answered that customary use is uniform throughout the state. He added that a local government may directly and specifically establish its regulations in the Comprehensive Plan and/or in the Zoning Ordinance to eliminate that. In reply to Chairman Lazarus, Mr. McLaughlin stated that, in the absence of an Ordinance, bingo would be a customary accessory use everywhere in the state of Florida. In reply to Mr. Anderson, Mr. McLaughlin confirmed that if the County specifically listed the homeless shelter as being a provisional use in a certain zoning district, it does not preclude it from being an accessory use. In answer to Mr. Anderson, Mr. McLaughlin confirmed knowledge of the expression of one thing in an Ordinance to the exclusion of another, but added he did not feel it would apply in this instance. Page 29 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0; 1 99 1 Mr. Anderson referrpd to Florida Statute 420.621 and asked whether a homeless shelter would be an accessory use to a school. Mr. McLaughlin replied that, if the school board chose to make that provision, it would. He gave an example of same. In reply to Mr. Anderson, Mr. McLaughlin stated that the Shadowlawn Elementary School could have a homeless shelter if the school board wished it. He reminded Mr. Anderson that he was talking about homeless shelters generically. Mr. Anderson referred to the letter regarding Pinellas County and asked the wording of the Pinellas County Zoning Ordinance that would exclude a day-care center from being an accessory use to a church. Mr. McLaughlin answered that a day-care facility requires a special exception use under any cir- cumstance and is not deemed an accessory use to other uses. Mr. Anderson stated that Mr. McLaughlin used the term "special exemption" in connection to his sta- tements regarding the churches in St. Petersburg and their homeless shelters. Mr. McLaughlin replied that he did not remember doing so. He added that churches in downtown St. Petersburg are permitted uses and elsewhere they are special exceptions. He stated the parent underlying land use is a special exception in large areas of St. Petersburg. In reply to Mr. Anderson, Mr. McLaughlin replied that if the Collier County Zoning Code had been written "shall only be permitted as a specific pro- visional use", it would be binding, but added that the Code does not read that way. He stated that in going forward, you have the guidance of Ordinance 91-34 but going backward you have to interpret "customary accessory use". In response to Mr. Anderson, Mr. McLaughlin remarked that the underlying parent provisional use requires a hearing and is permitted as a matter of Page 30 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 right if they meet the criteria and the County does not refute that they have done so, but added that once you establish the parent special excep- tion use, the customary accessory uses occur as a matter of right. Mr. Anderson questioned whether Mr. McLaughlin found any reference or disclosure of the fact that people would be staying overnight at the First Assembly of God or that the facility would be used as a homeless shelter contained in the Board minu- tes, staff reports, etc. Mr. McLaughlin answered that the approval is for a church subject to conditions, which he proceeded to read. He stated that, if this were a church that played bingo, it would have approved bingo, etc. He proffered his opinion as a planner that the home- less shelter is also a customary accessory use and, therefore, it approves that use as well. Mr. Anderson requested that Mr. McLaughlin turn to page 78 of the Housing Element of the Comprehensive Plan and read Policy 1.3.2, which he proceeded to do. In answer to Mr. Anderson, Mr. McLaughlin confirmed that he is aware that violation of the Housing Code is among the charges made to the church. In response to Mr. Anderson, Mr. McLaughlin stated that if the housing standards apply to this use, the enforcement would be consistent with the plan. In reply to Mr. Anderson, Mr. McLaughlin commented that the neighborhood in question is one of such a mixed use that the policy is inapplicable. He added that most Comprehensive Plans have a defini- tion of a stable residential neighborhood and the neighborhood in question would not comport with the majority of those definitions. Mr. Clark questioned whether Mr. McLaughlin has official authority from Collier County government to make interpretations of Collier County Ordinances, to which Mr. McLaughlin answered in the negative. In reply to Mr. Clark, Mr. McLaughlin stated that the Comprehensive Plan is silent on the point of Page 31 CODE ENFORCEMENT BOARD OF COLLIER. COUNTY JUNE 10, 1991 unlimited numbers of individuals residing in the shelters. Mr. Clark questioned whether the Comprehensive Plan removed authority from the County to enforce Ordinances dealing with life safety, Housing Codes, numbers of residents, space requirements, and life safety issues. Mr. McLaughlin answered that, if those Codes are consistent with the Plan and do not violate its policies, goals, objectives and intent, the regula- tions are valid. Mr. Clark related a scenario of a 20 X 20 building located in an RMF-6 area with 100 people living in it and questioned whether the County has the authority to regulate life safety issues and Housing Code Ordinances. Mr. McLaughlin replied that as far as the Housing Code Ordinance, you have to determine if it is housing within the meaning of both the Ordinance and the Zoning Ordinance to determine whether it is applicable and, if so, you have to determine if the provisions of that Ordinance are consistent with the plan and further the plan, in which case it is valid. He added that, if inconsistent, the plan precludes their enforcement. In reply to Mr. Clark, Mr. McLaughlin answered that, hypothetically, the plan could acknowledge that during a hurricane emergency overcrowding the shelters will be necessary and that if the county tried to enforce the Ordinance against that policy, that enforcement would be void. He concurred that, for the most part, the County can regulate life safety issues. In response to Mr. Clark, Mr. McLaughlin acknowledged that the State Comprehensive Plan does contain a policy to ensure compatibility. In reply to Mr. Clark, Mr. McLaughlin reiterated that the mixed nature of the neighborhood in question is such that, in his professional opinion, neither the church, the school, water tanks, nor the accessory use of the church as a homeless shelter create an incompatibility situation with Page 32 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 the area that violates either the Collier County Comprehensive Plan or the State Comprehensive Plan. Mr. Anderson questioned whether being homeless is the equivalent of an emergency, to which Mr. McLaughlin answered in the affirmative. He added that the homeless situation for the individual who is homeless is an emergency but that the overall problem is not an emergency even though the indivi- duals who are homeless are in an emergency situation. Mr. Anderson questioned whether there are generally any limitations on the length of stay in a homeless shelter, to which Mr. McLaughlin answered in the affirmative. In reply to Mr. Anderson, Mr. McLaughlin admitted that he does not know the limit of stay at the First Assembly of God, but inferred that it would not exceed the 24 month stay allowed by some shelters in Pinellas County. Mike McDonald identified himself as an Attorney at Law and Mr. Kramer's assistant. Mr. Arthur Barrum of Atlanta, Georgia was sworn in at this time. Mr. Anderson questioned whether Mr. Barrum was being tendered as an expert, to which Mr. McDonald answered in the affirmative. Mr. McDonald introduced a document he alleged to be Mr. Barrum's resume, requesting that it be iden- tified as Respondent's Exhibit I, copy of which was not provided for the record. Mr. Clark pointed out that they repetitively have not been provided copies of documents admitted. Chairman Lazarus acknowledged that he has noticed that fact. Pursuant to the request of Mr. McDonald, Mr. Barrum provided a vocal recap of his educational background, including an extensive military background. He stated that he is current Iv the Director of Atlanta's Veterans Upward Bound Page 33 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Program; Primary Coordinator and Director for Atlanta's Homeless and Veterans Transitional Housing Project, "Harris House"; and Director of Atlanta's Homeless Veterans Reintegration Project. He verified serving as Secretary of the St. Luke's Economic Counsel of the St. Luke Episcopal Church, which is a homeless assistanc~ program for noo- veterans and having served as the primary team leader for the City of Atlanta's Task Force for the Homeless. Mr. McDonald introduced Respondent's Exhibit J, alleged to be summaries of the Veterans Upward Bound and Harris House Projects, copy of which was not provided for the record. In response to Chairman Lazarus, Mr. McDonald indi- cated one copy of Exhibit J is available but that he will get additional copies by this afternoon. Pursuant to Mr. McDonald's request, Mr. Barrum gave a brief explanation of each program and identified his role in same. In answer to Mr. McDonald, Mr. Barrum verified that he has, in fact, testified in Courts of Law and before governmental agencies, and he proceeded to identify same. Mr. McDonald voiced his intention to tender the witness as an expert on the homeless impact on the community and on programs to alleviate the problems of homelessness. Chairman Lazarus questioned the relevance to this particular proceeding. Mr. McDonald answered that it is asserted in some quarters that the homeless shelters are a magnet for homeless people and create a problem. He added that Mr. Barrum can tell us that just the contrary is true, that homeless shelters and homeless programs are part of the solution to the homeless problem. Mr. Anderson objected on the grounds of relevancy to the Code violations that are at issue. He stated it is a question of whether they have complied with the Zoning Ordinances and the Housing Code. Page 34 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Chairman Lazarus stated that the County has opened up this whole line of questioning and, therefore, it must be allowed. Pursuant to Mr. McDonald's request, Mr. Barrum cited cities such as San Diego; Olympia, Washington; St. Louis, Missouri; Cincinnati, Ohio; Atlanta, Georgia; Washington, D.C.; and Boston, Massachusetts, where he has seen the property value and the conditions around that property in the neighborhood at such a level as to consider it a blight on the community at large prior to the instillation of a stabilized properly run facility to address the needs of homelessness. He related an instance involving an old hospital in the City of Atlanta which had been abandoned some 12 years, a hospital with growth all around located next door to a bank and within 100' of a school, thereby causing the surrounding property value, including the bank's, to decrease. He stated that once Harris Hospital was renovated and established as a viable entity providing service to homelessness, the property value of the bank, school, and other adjacent residents increased 12% the first year and has steadily increased. He reported that instances where police had to be called in to respond to incidents of street crimes decreased due to the renovation and the stabilizing effect it had. In response to Mr. McDonald, Mr. Barrum expressed his opinion that providing a stabilizing effect for the disadvantaged, displaced and underprivileged decreases the likelihood of increased transitory movement throughout the community. He stated that the effect of a properly run, single based, single focused facility is such that it tends to remove the state of panic that most homeless people are in and, thus, allows those with the required expertise to give them necessary guidance to develop the skills to overcome the obstacles that led to their being homeless in the first place. He added that he would be remiss if he did not mention that the characteristics of the homeless across the Dation differs with each community but that, generally speaking, one could say there are problems, that roughly 30% might have problems with abusing alco- hol and drugs, and that 10-20% of that 30% popula- tion might have some mental condition requiring special attention. He indicated that, unless a Page 35 CODE ENFORCEMENT BOARD OF COLLIER COUNTY ~UNE 10, 1991 stabilizing environment is created whereby those in need can receive the necessary care and help already available, then the problem is exacerbated. In reply to Mr. McDonald, Mr. Barrum stated that for thousands of years the church has been the haven to which the disadvantaged, the needy, and underprivileged have come, that has not changed, and he doubts if it will change anytime in the future. Mr. Anderson questioned whether Mr. Barrum has visited the homeless shelter in question, to which he answered in the negative. In reply to Mr. Anderson, Mr. Barrum stated that the property itself where the hospital he spoke of is located is in a mixture of residential and commercial, but that the property itself is zoned residential. He stated it may have been an over- sight by the county but they never changed the zoning. Mr. Strain asked Mr. Barrum if he found that all homeless want to be housed, to which he answered in the negative. He stated that approximately 10% preferred to not be housed and instead wanted to live in open areas. He added that upon closer exa- mination one finds that characteristic related to other ~3ychological problems. Mr. Strain asked whether Mr. Barrum was familiar with Naples ratio of homeless to population and the needs of the area in general compared to larger populated cities. Mr. Barrum answered that he has participated in projects in rural areas such as in Gay, Georgia, where there was a big displacement resulting in lost industry and involving persons choosing not to leave the area but that, because there was no eco- nomic base, those people had nowhere to turn and were living anywhere they could find. He. reported being successful at developing a project to assist them which, in turn, attracted industry. He reported an incident where approximately 30 veterans were living in the mountains outside of Johnson City, Tennessee. He stated they were able to show that if the community reached out to those Page 3G CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0 I.. 1 99 1 veterans much of what they perceived as social problems could be alleviated and, as a result, they were able to convince the Veterans Administration to expand its domiciliary there. He stated that the size of the community is not necessarily as relevant to the effort that the community puts forth to solving a problem that is within reach to be solved. He pointed out that, although the words are his, they reflect the direct statements made by the interagency council. In reply to Mr. Pedone regarding the percentage of transients passing through town during the economic downturn in Gay, Georgia, Mr. Barrum answered less than 1%. Mr. Pedone pointed out that this was an instance where a problem occurred and the people chose to stay where they were and work it out inste~d of moving on. Mr. Pedone pointed out that the Harris House charged rent which, in turn, forces responsibility and a return to a more normal lifestyle. Mr. Clark asked Mr. Barrum's opinion as to the viability of a community and whether the rights of homeless and residents need to be equally addressed, i.e. whether the governmE~t has an obli- gation or right to impose reasonable regulations on areas in a community in order to prevent residents of same from being unduly affected, to which Mr. Barrum answered most assuredly so. *** Recess 12:35 A.M. - Reconvened 12:45 P.M. at which time Deputy Clerk Arrighi replaced Deputy Clerk Farris *** After being sworn in by Mr. Clark, Rev. David Mallory informed that he is the pastor of the First Assembly of God on Shadowlawn Drive. In response to questions posed by Mr. Kramer, Rev. Mallory advised that he has been a pastor for 24 years and has been the pastor for the First Assembly of God for four years come Christmas, 1991. After a brief history of the church, Rev. Mallory informed that the local church on Shadowlawn was established in 1956 and the building in question was built in 1978 with its building permit issued on October 6, 1975. Page 37 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10,_ 1991- Mr. Kramer requested that the building permit issued on October 6, 1975 be introduced into evi- dence as Respondent Exhibit B (not provided to the Deputy Clerk for the record). Mr. Clark pointed out that the building permit issued on October 6, 1975 does not show an address. Rev. Mallory commented that on the subject building permit the building in question is designated as a club house. In response to questions by Mr. Kramer, Rev. Mallory affirmed that there were a variety of ser- vice activi ties provided by the church throu'ghout the week including church services, children church services, Sunday school, choir practices and other special interest groups, and adult Bible classes; and he added that the church is also used by out- side interest groups such as overeaters anonymous throughout the week. He advised that the church is licensed to provide a full daycare facility on the premises for 111 children. Rev. Mallory explained briefly why and how the homeless shelter came about. In explanation as to the operation of the subject building, Rev. Mallory informed that there are 28 bunks, separated into areas for families, females, and males. He noted that the intent of the shelter is not only to pro- vide a place to stay overnight for these people but to also help them get back into the workplace with their self respect and dignity. He disclosed that the church provides Bible studies and attends to the individual needs of the people seeking help. He reported that up until approximately April, 1991, police officers would bring people to the shelter for help; and cited that the shelter has worked in cooperation with the police department in providing the names of the individuals staying there. He added that the shelter is also working with some agencies in Lee County such as the Detox Program and with St. Matthew's House. Rev. Mallory indicated that the shelter has lowered the impact on the neighborhood by the fact that there have always been vagrants in this area and the Church is providing a place for them to go. He acknowledged that the shelter is a customary Page 38 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 accessory use of the Church based on the ministry of the Church which is to address the needs of the people, and in this case these people need a place to stay. He advised that half the individuals living in the shelter are Collier County residents who have gone through economic hardships. Mr. Kramer requested that Respondent's Exhibit E which is a letter from the Phoenix First Assembly of God Church be introduced into the record as evi- dence. Mr. Anderson objected to this action indi- cating that he does not see the relevancy to this proceeding. Mr. Kramer explained that the letter refers to the customary accessory use of a church. Although Mr. Anderson maintained his objection, Mr. Lazarus accepted Respondentfs Exhibit E (not pro- vided to the Deputy Clerk for the record). Mr. Kramer referred to Respondent's Exhibit J (not provided to the Deputy Clerk for the record) which he provided to Rev. Mallory and requested that he identify this exhibit. Rev. Mallory specified that Respondent's Exhibit J was furnished to the Church with regard to occupancy for the subject building. In response to Mr. Kramer's question regarding the alleged violations by the Church, Rev. Mallory explained that" the work that has been done in the Church has consisted of removing three of the six toilets which had been installed when the building was constructed and installing three shower facili- ties, constructing a wall for privacy for the shower area, and building 28 bunks. He noted that the walls installed to separate the sleeping areas do not go to the ceiling. He advised that the work that has been done at the church has been accomplished through volunteer help and much of the material used was donated. Since the expense was under $500 for the construction of the bath area, Rev. Mallory stated that he was told that he did not need a permit. He pointed out that there is a discrepancy of two inches in the bath area in that one shower is 28 inches from the other rather than the required 30 inches. He signified that the Church is willing to correct this error by taking one of the showers out and replacing it with a com- mode. He reported that a permit was obtained for the electrical work, and they do have a letter stating that the Church does not need a building Page 39 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 permit for the fire alarm system. He acknowledged that it has not been indicated to him that a building permit was needed for the partial walls. He cited that no kitchen has been installed. In response to Mr. Anderson, Rev. Mallory explained the procedures followed for an individual entering the shelter. Rev. Mallory pointed out that the shelter does n01 serve as a drug rehabilitation center; and in regards to alcohol, if it is established that an individual who has come to the shelter is intoxicated the night manager will pro- vide a bunk for the person to sleep it off and there has been occasion where some individuals have been transported to detox center. If an indivi- dual is having a problem with drinking too much, Rev. Mallory explained, they must seek counseling in order to stay with the Church's program. Rev. Mallory reiterated to Mr. Anderson that they do keep a log of the people they have serviced; and as to how long they stay, he indicated that they have a role over of four to six weeks with the intention to get them back on their own as quickly as possible. Regarding Mr. Anderson's question as to the neigh- bors of the Church, Rev. Mallory commented that the residents of the property adjacent to the Church's parking lot are positive toward the ministry. He pointed out that he has gone to the land owners not the tenants of the property adja- cent to the Church. As to the change in the neigh- borhood, Rev. Mallory indicated that the change has been for the better because instead of these people not having a home, sleeping on the Church grounds, and in general being unacceptable people; they are contributing positively to society. Mr. Anderson questioned about the beds, and Rev. Mallory stated that the beds which were installed in March are movable, but the eight beds attached to the partition walls are a little more difficult to move. Rev. Mallory indicated that the beds cost $60 each. Rev. Mallory explained that although there is a parsonage on the Church property, a maintenance man lives there, and his own residence has always been approximately three miles away. Page 40 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Responding to Mr. Clark's questions as to the cost of the showp ~acilities, Rev. Mallory confirmed that the shower stalls cost $98.00, but most of the necessary items required for installation were available and the labor was provided by the congre- gation; therefore, the total expense was under $500. He noted that if he had been advised that he needed a building permit as he was advised that he needed an electrical permit, he would have obtained one. Mr. Clark stated that Code Compliance Investigator Smith approximated the value of the construction in the Church to he at $2,000.00. Mr. Kramer noted that Mr. Smith's evaluation was based on different facts and is a conflict as to what was actually done. Responding to Mr. Clark, Rev. Mallory remarked that not taking into consideration the donations and labor provided for this construction, the cost could have been more than $500.00. Rev. Mallory disclosed that he did not have the chance to point out to Mr. Smith, when he did his investigation, all the things they did not have to do because they already existed. Mr. Clark questioned whether during the meeting on April 12, 1991, Rev. Mallory was apprised of the housing code requirements and that in an RMF zoning which the church is in a homeless shelter could be permitted? Rev. Mallory stated that he did find this out at the meeting. Rev. Mallory explained that he understands that he could petition for a provisional use before the Board of County Commissioners; however, he does not believe that the Board of County Commissioners would be favorable toward a homeless shelter. He argued that as the pastor of this Church, they have a right to address the needs of these homeless people and minister to them socially, physically, and spiritually; and he does not believe that a zoning provision is necessary. He said the reason this issue is before the CEB is because he was told that he would have to close and put the people out on the street or face up to $6,000 a day in fines, and no other alternatives werp proposed. He added Page 41 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 that this left no room for negotiation except to come before this Board. Mr. Kramer objected to Mr. Clark's question by sta- ting that their contention is there is no need for a provisional use application because they have the right to exist and operate. Rev. Mallory confirmed this statement. In response to Mr. Clark, Rev. Mallory stated that the Sheriff's Department has been called to the Church on three separate occasions, and two of them were not related to the shelter directly and the other was an attempted suicide. Rev. Mallory indicated to Mr. Clark that he does have 2 sense of responsibility toward the people living in the neighborhood; however, he does not feel that the homeles? shelter is creating an unsafe area. Rev. Mallory acknowledged that there are two gazebos where people will sit or reside. After Rev. Mallory read several codes provided by Mr. Clark, Mr. Clark stated that a dwelling does not require there be kitchen facilities. Mr. Kramer objected to Mr. Clark's question and said that the ordinance will speak for itself. In response to Ms. Ornowski, Rev. Mallory informed that the shelter is manned 24-hours a day. Ad~itionally, he advised that there are caretakers living on the premises who maintain the facilities and grounds. Rev. Mallory indicated, in answer to Ms. Ornowski, that he has good a relationship with the Shadowlawn School. He commented that he had conservation with Dr. Singer during the time the County was installing the sewer lines to assure her that once the fence was put back in place the men would not be crossing the school grounds which is what did happen. Rev. Mallory confirmed that there was a negative anonymous call placed to the HRS resulting in an inspection by the HRS of the facility which disclosed that there is no danger to the children of the daycare. He affirmed that there are Page 42 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 children attending the Church's daycare center who also attend Shadowlawn School, and the Church pro-- vides for the safety of these children walking to and from the school. In response to Mr. Strain, Rev. Mallory stated that he still hopes there is some way to work this out with the Commissioners. He informed that he has written to each of the Commissioners explaining his views and requested a meeting. He related that there could be a solution as long as both sides are willing to bend and time is permitted to resolve the issue. He confirmed that he has operated a homeless shelter in the past, and indicated that this is a normal course of action for a church. Rev. Mallory answered Mr. Pedone by stating that if there are no bunks available for someone coming to the shelter, the Church will house them in one of the hotels. In response to Mr. Clark, Rev. Mallory noted that the Church worked with the requirements of the fire inspector and does not understand the discrepancy between the County's requirements and the fire department's. In response to Mr. Pedone, Rev. Mallory stated that the Church does not need to apply for a provisional use because the County's ordinance says that a church may engage in other accessory uses. He emphasized the he does not feel that he has broken the law by providing the homeless shelter. Rev. Mallory responded to Mr. Anderson by stating that he called the County Commissioners office and talked to Chairman Goodnight who indicated to him that there is no zoning in Collier County for the homeless and that he would have to apply for usage. *** Recess 3:00 P.M. - Reconvened 3:10 P.M. at which time Deputy Clerk Farris replaced Deputy Clerk Arrighi *** The following persons spoke to the issue of whether the shelter has resulted in increased incidents of vagrancy, trespassing, vandalism, threat to the safety of children and residents in the area, etc. thereby contributing a negative effect on the Page 43 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 1 0, 1 99 1 neighborhood, by concluding that the shelter has not increased the problems and may have, in fact, made progress toward a positive effect by providing for the needs of the community: Deborah Ty Joan Carol Milbourne * Rev. Rick Morrell Larry William Howard Tom Ty Sharon Wheeler ** Pastor Jim Ellis *Indicated that every Pastor does not have the gift of being able to work with the homeless; however, Rev. Mallory of the First Assembly of God does have this gift. He added that every Pastor has his own ministry that he must follow; therefore, he agrees that a homeless shelter is a customary use of the church. **Agreed that ministering to the homeless is and can be an integral part of the church and, therefore, a customary accessory use of the church. After being sworn in, James Brooks Whiting verified that he was a resident of the homeless shelter in question in November of 1990; that he was given assistance in addressing his physical as well as spiritual needs; and that he is now gainfully employed. After being sworn in, Patti J. Lunt verified that she and her daughter were provided assistance in 1970 by a rescue mission located in Illinois; that they assisted her with physical and spiritual needs; that she has since been gainfully employed; and that it has been her experience that it is customary for churches to have such rescue missions. *** Recess 4:05 P.M. - Reconvened 4:15 P.M. *** After being sworn in, Barbara Cacchione, Chief Planner for the Long Range Planning Section of the Growth Planning Department, verified that she has been employed by the county for 10 years. Mr. Anderson questioned whether Mr. Kramer is willing to stipulate that Ms. Cacchione is an expert witness on comprehensive planning. Page 44 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. Kramer agreed that she is an employee of the county but not to her competency as an expert. Pursuant to Mr. Anderson's request, Ms. Cacchione provided a recap of her educational background. Mr. Anderson stated that, although they do not con- cede that the Comprehensive Plan is properly at issue today, they wish to provide evidence regarding same and submit Ms. Cacchione as an expert on the comprehensive planning. Mr. Kramer agreed that Ms. Cacchione is an expert totally familiar with what has occurred in Collier County with its Comprehensive Plan, but there is nothing to indicate that she has unique expertise with comprehensive plans in general. Pursuant to Mr. Anderson's request, Ms. Cacchione explained the relationship between a Comprehensive Plan and a Zoning Ordinance. She indicated that the Comprehensive Plan is adopted by Ordinance, is a general plan for the County providing direction and containing several elements mandated by Chapter 163 of the Florida Statutes and reinforced by the Minimum Criteria Rule 9J5. She stated that Collier County's Plan has been found to be in compliance with the state regulations. She added that the Zoning Ordinance is a land development regulation which must be consistent with the Growth Management Plan. She provided examples of this relationship. Mr. Anderson questioned the designation in the Comprehensive Plan of the area where the church property is located, to which Ms. Cacchione replied it is designated as urban residential. In reply to Mr. Anderson, Ms. Cacchione admitted being somewhat familiar with Ordinance 91-34 and proceeded to identify the intent of same. Mr. Anderson questioned the relationship of Ordinance 91-34 to the Zoning Ordinance. Mr. Kramer objected to the testimony on Ordinance 91-34 stating it was enacted after the Respondent went into operation of the shelter. Pursuant to Mr. Anderson's request, Ms. Cacchione identified the relationship of Ordinance 91-34 to the Zoning Ordinance. Page 45 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 In response to Mr. Anderson regarding the con- sistency of Ordinance 91-34 with the Collier County Comprehensive Plan, Ms. Cacchione replied that all land development regulations are required to be consistent with the Comprehensive Plan pursuant to Policy 3.1K of the Future Land Use Element. She stated that Ordinance 91-34 has been determined to be consistent with Collier County's plan and furthers the goals, objectives and policies of the plan, that it is incorporated into the Zoning Ordinance and is consistent with Collier County's Comprehensive Plan. In reply to Mr. Anderson, Ms. Cacchione stated that the designation of RMF-6 allows 6 residential units per acre. Pursuant to Mr. Anderson's request to explain the concept of compatibility of uses, Ms. Cacchione quoted Policy 5.2 and Policy 5.4 of the Future Land Use Element. She added that, when dealing with the general plan, many of the tests for compatibility come in to play at the zoning or provisional use aspect of approval and, thus, that is where you look at the surrounding neighborhood, make a deter- mination based on facts of what is being put in, and look at that in conjunction with the surrounding neighborhood to determine if it is a compatible and appropriate use. Ms. Ornowski questioned whether there is any policy of the Growth Management Department or contained in the Comprehensive Plan concerning vested rights. Ms. Cacchione acknowledged that there are policies concerning vested rights. Ms. Ornowski questioned what the policy is for a property in regard to the Growth Management or Comprehensive Plan when the subject property is granted a provisional use prior to the time of an Ordinance. Mr. Anderson objected stating that Ms. Ornowski is asking a non-lawyer for a legal conclusion. Chairman Lazarus stated she is on as a policy wit- ness and therefore can testify as to policy. Page 46 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Ms. Cacchione acknowledged being aware that the subject property was granted a provisional use for a church in 1983. She stated she would not speak to the vested rights policy because that is not what is pertinent in the instant case, in her opi- nion. She stated that it would be basically improved property and, if improved under Policy 5.9, it can be rebuilt with the same use or another use also permitted in the zoning district that exists at the time of redevelopment. She reported that the use of a church as a shelter is provided for in Collier County's Comprehensive Plan. She pointed out that the County is not saying that such uses are inconsistent but instead that there is a procedure under the Zoning Ordinance which exists for such uses to go through in certain districts, and that in some districts they are permitted uses while in other districts they are provisional uses. She said that the Zoning Ordinance implements the Plan; that it is provided for in the plan, but does not obviate the need to go through the zoning pro- cess or provisional use process. Ms. Ornowski indicated that, in effect, the church has gone through the provisional use process at some time prior to the passage of the Growth Management Act. Ms. Cacchione stated that the use of the church as a church is permitted at the subject location through the provisional .use process. She stated she will not address herself to the issue of whether a homeless shelter is an accessory use or not as it has been interpreted by the Zoning Director and there is an appropriate procedure for an appeal of his decision. She added that until an appeal occurs, the Zoning Director's interpretation stands. In reply to Ms. Ornowski, Ms. Cacchione confirmed that she is not specifically aware of the Ordinances under which the church has been cited. In answer to Ms. Ornowski, Ms. Cacchione acknowledged her belief that the church as been cited for violation of Ordinance 82-2, the Zoning Ordinance. Ms. Ornowski questioned whether either Mr. Clark or Mr. Baginski approached her concerning whether Page 47 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10L-l~ their activities with the church complied with this act. Ms. Cacchione related that they had discussed the matter with her following the last Code Enforcement Board meeting where the issue of the Comprehensive Plan was going to be introduced by Respondent's expert witness. In reply to Ms. Ornowski, Ms. Cacchione verified that her opinion as an expert offered by t~e County concerning its Comprehensive Plan was not solicited by either Mr. Clark or Mr. Baginski in preparing the violations because the Comprehensive Plan is not at issue as these uses are provided for in the Plan if appropriate procedures are followed. Ms. Ornowski reiterated that Ms. Cacchione has pre- viously testified that Ordinance 82-2 complies with the Comprehensive Plan, to which Ms. Cacchione answered in the affirmative. Ms. Ornowski stated that all actions or land deve- lopment regulations or enforcement of same must, according to Chapter 163, comply with that compre- hensive act, to which Ms. Cacchione agreed. Ms. Ornowski asked whether Ms. Cacchione was aware that the church has also been cited with a viola- tion of the Building Code Ordinance 90-75, to which Ms. Cacchione answered in the affirmative. Ms. Ornowski questioned whether, in her opinion, Ms. Cacchione knows if Ordinance 90-75 constitutes a development regulation. Ms. Cacchione replied that she cannot address that issue as she does not know the answer to that question. Ms. Ornowski asked whether Ms. Cacchione's denart- ment is the Growth Management Department, to ~hich Ms. Cacchione answered in the negative, adding that her department is the Growth Planning Department. Ms. Ornowski pointed out that Ms. Cacchione has earlier testified that she was involved with pre- paration of the comprehensive act for Collier County. Page 48 CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Ms. Cacchione answered in the affirmative, but added that this is not part of the Comprehensive Plan which was adopted as part of the adopted docu- ment but instead an Ordinance which implements the Plan. She added she is uncertain whether -it falls under the definition of a land development regula- tion and she will need to check with legal counsel. Ms. Ornowski related that Ms. Cacchione's testimony today is that she does not know whether the Building Code complies with Collier County's Comprehensive Plan. Ms. Cacchione verified that, in fact, lS not her testimony. She pointed out that Ms. Ornowski has asked whether she knew if it is a land development regulation that is consistent with the Plan, at which point she informed Ms. Ornowski that she did not know whether it qualifies as a land development regulation. In reply to Ms. Ornowski, Ms. Cacchione stated that if it did qualify as a land development regulation, it would have to be consistent with the Comprehensive Plan for Collier County. In answer to Ms. Ornowski, Ms. Cacchione reported that she is not really aware of the specific viola- tion cited under the Housing Code for Collier County. Ms. Ornowski inquired whether Ms. Cacchione has knowledge of compliance of the Housing Code with the Collier County Comprehensive Plan, to which Ms. Cacchione answered that she does not deal specifi- cally with the Housing Code and cannot answer the question. In response to Mr. Strain, Ms. Cacchione explained the procedure for requesting and being grante~ a rezone of property relative to the general provi- sions afforded under the Comprehensive Plan. She added that the zoning must be consistent with the Plan but indicated that compatibility is still an issue. She stated that, basically, staff makes a recommendation, there are public hearings which involve the local Planning Agency, and the Board of County Commissioners makes the final decision in regard to rezoning and provisional uses. Page 49 CODE ENFORCEMENT BOARD OF COLLIER COUNTY __ JUN~_~_L 99 t_ In reply to Ms. Ornowski, Ms. Cacchione stated that the East Naples Planning area is, in population, approximately 20,000 people and is census tract 106, but stated she would hesitate to give a speci- fic estimate of acreage or square miles. In answer to Ms. Ornowski, Ms. Cacchione stated she is aware of no federal litigation regarding the validity of the Comprehensive Act. In reply to Ms. Ornowski, Ms. Cacchione stated she is a member of AICP with 10 years experience. *** Recess 4:35 P.M. Reconvened 4:55 P.M. *** In answer to Ms. Ornowski, Mr. McLaughlin proffered his opinion that the creation of the homeless shelter on the church property is not a change of use. He added that 20% of the churches in St. Petersburg have it as a part of their ministry and as a customary accessory use. He indicated he believed it to be a customary accessory use in the context of the Comprehensive Plan and its policies regarding community facilities, particularly in the context of the Zoning Ordinance and its language on customary accessory uses or the lack of language regarding same, therefore interpreting that it is not a change of use, and therefore vested through the Plan and through Ordinance 91-34. In answer to Mr. Andernon, Mr. McLaughlin stated that a change from a bar to a homeless shelter would be a change in use but, within the context of a church, it is not a change of use. Mr. Anderson questioned whether a change from a day-care center to a homeless facility represented a change in use. Mr. McLaughlin answered in the negative, adding that the day-care center in Collier County would also be deemed a customary accessory use. He stated that approval of a church includes its customary accessory uses, which, in his opinion as a planner, include the homeless shelter. In answer to Mr. Anderson, Mr. McLaughlin confirmed his opinion that a building used as a day-care center on one day and a shelter to house people Page 50 .... .. CODE ENFORCEMENT BOARD OF COLLIER COHNTY ~TUNE 1 0, 1 99 1 overnight on the second day is not a change in use in the context of a church. In reply to Mr. Anderson's request that Mr. McLaughlin cite where in the Comprehensive Plan it talks about customary and accessory uses, Mr. McLaughlin stated that the Policy of the Urban Designation encompasses the overall approach of the accessory use to the churches. He added that he feels the absence of the regulation is critieaJ. In response to Mr. Anderson, Mr. McLaughlin stated that the term "customary" or "accessory use" is found in the Comprehensive Plan but, after reviewing a copy of the plan, he stated he meant to say that he knew the term "customary accessory" is not in the Plan. Mr. Kramer interjected that this questioning is going beyond the scope of direct. He added he has no objections with the questions. Mr. Kramer expressed his hope that Mr. Anderson's line of questioning will not be used to reintroduce Ms. Cacchione, to which Mr. Anderson replied that it might be a possibility. Mr. Kramer at this point objected to the whole line of questioning. He again stated the line of questioning is beyond direct. Mr. Kramer then pro- ceeded to withdraw the objection. Mr. Strain questioned whether any fluctuations in biblical interpretations over the years and how they change the operations of a church would he consistent with what the church can do, as the Bible changes from century to century in its interpretation. Mr. McLaughlin responded that, regarding change from century to century, there probably is a change in the ministry. He added that he feels the foun- dation stays from century to century and that the changes in the church are probably slower than changes in society. Mr. Strain pointed out that a lot of uses could be opened up under the category of a church and questioned whether that was Mr. McLaughlin's intent or interpretation. Page 51 . . CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Mr. McLaughlin responded that he feels the homeless ministry certainly has a strong scriptural foun- dation. He expressed his view that you have to balance the biblical foundation coupled with his empirical testimony based on hard data regarding churches, and balance that with the concept of customary accessory ~se in the Zoning Code as sup- ported by the Comprehensive Plan to see what fits. Ms. Ornowski made comments regarding the Planning Commission summary, but her comments were inaudible. Chairman Lazarus remarked that perhaps this Board could take official notice of whatever Ms. Ornowski is alluding to. Mr. Strain requested whether the Board could have copies. Chairman Lazarus questioned whether there were any exhibits remaining outside the record which have not been admitted. Mr. Kramer stated he will keep the aerial map for closing arguments rather than making copies of same. Mr. Clark remarked that there are several documents that were admitted on the record but were not pro- vided to the Clerk. Mr. Anderson stated that Mr. Clark needs to have the Board take official notice of the Housing Code, Ordinance 91-34, and all the Zoning Ordinances. Chairman Lazarus stated that the Board will take official notice of all county Ordinances. Chairman Lazarus stated that the evidentiary record is now closed on this proceeding. Chairman Lazarus stated, regarding procedural mat- ters, that a conclusion cannot be reached today in terms of a decision, that another meeting is required, that summation should not commence today but take place at the next meeting. He stated that each side will be allowed fifteen minutes for sum- mation. He stated that any additional written Page 52 ". . . # CODE ENFORCEMENT BOARD OF COLLIER COUNTY JUNE 10, 1991 Memorandum submitted prior to the next meeting will be accepted. Chairman Lazarus pointed out that anything to be submitted should be provided at least twenty-four hours prior to the next hearing date. He stated Mr. Clark will be provided with the necessary home telephone numbers. Ms. Ornowski stated she wants to enter Mr. McLaughlin's resume as part of the record, to which Mr. Lazarus replied that it will be accepted, copy of which was not provided for the record at this time. Following discussion regarding available dates, Chairman Lazarus stated the Board will meet June 21, 1991 at 9:00 A.M. He added that briefs must be submitted no later than June 20th. He directed Petitioner and Respondent to work together regarding circulation of the briefs. Mr. Strain and Chairman Lazarus suggested that Petitioner and Respondent meet to see what, if any, amicable conclusions could be reached among the parties. *** There being no further business, the meeting was adjourned by Order of the Chair. CODE ENFORCEMENT L~1r Monte La Page 53