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CEB Minutes 07/25/1996 1996 Code Enforcement Board July 25, 1996 July 25, 1996 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, July 25, 1996 Met on this date at 8:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: Jean Rawson Jim Allen Charles Andrews Louis Laforet MEMBERS NOT PRESENT: Celia Deifik Mireya Louviere Richard McCormick ALSO PRESENT: Frank Kowalski, Representing the Board Rarniro Manalich, Assistant County Attorney Maria E. Cruz, Code Enforcement Linda Sullivan, Code Enforcement Director 'j .' Page 1 - CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA AgEHt2A Date: July 25, 1996 at 8:30 o'clock A.M. Location: Collier County Government Center, Admn. Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES N/A 4. PUBLIC HEARINGS A. BCC vs. LELY BAREFOOT BEACH PROPERTY OWNERS ASSOC., INC., A FLA. CORP.AND LELY BAREFOOT BEACH MASTER ASSOC., INC. A FLA. CORP. CEB NO. 96-012 5. NEW BUSINESS N/A 6. OLD BUSINESS A. BCC vs. Del H. Ackerman and Jay McMillian CEB No. 95-009 Filing of Affidavit of Non-Compliance and Request for Imposition of fines 7 . REPORTS N/A 8. NEXT MEETING DATE August 22, 1996 9. ADJOURN July 25, 1996 CHAIRPERSON RAWSON: The Code Enforcement Board of Collier County Florida will now come to order. Let's have the roll call starting with my left. MR. LAFORET: Lou Laforet. CHAIRPERSON RAWSON: Jean Rawson. MR. ALLEN: Jim Allen. MR. ANDREWS: Charlie Andrews. CHAIRPERSON RAWSON: The attorney representing the board today -- Bill, why don't you identify yourself for the record. MR. KOWALSKI: Frank Kowalski from the Naples law firm of Paulich, Slack & Wolff. Thank you, Jean. CHAIRPERSON RAWSON: Thank you. Mr. Kowalski and I have had a conversation about the Code Enforcement Board rules and regulations and have determined that Article 5 of those rules and regulations indicate that a forum of the board shall consist of four members, and so, unfortunately, we have three members absent today. Two we knew about. The other 1 we didn't know about, but we do have a forum, and so, therefore, this board will convene. The rules go on to say that an affirmative vote of a majority of those present and voting is necessary to pass any motion or adopt any order. So we have a problem, because there's only four of us, if we have a tie. Nevertheless, we are going to forge on. We've also determined that we need a forum to bring this board to order, which we have. And if someone has to recuse themselves for whatever reason, we can still have a vote of a majority of the members present. So I apologize to the members that are here today, and I apologize to the attorneys. We usually have a seven-person board, but being July in Florida, you know, there are a lot of people gone. We will do our best to conduct business as usual and render a fair and impartial decision even though there's only four of us here. I need now to have a motion from 1 of the board members on the approval of the agenda. MR. ALLEN: I make the motion. MR. ANDREWS: Second. CHAIRPERSON RAWSON: It's been moved and seconded that we approve today's agenda. All in favor signify by saying aye. It passes. We don't have any minutes in our packet to approve this time. I'm sure that's probably because they are very, very long and probably haven't been transcribed yet since the last meeting. Now, let's move on to the public hearing section of the meeting today, and I'm going to ask the county which case you want to hear first. MS. CRUZ: Good morning, Madame Chairman. My name is Maria Cruz, code enforcement specialist. I'd like to request that item under -- Item 6 under old business be moved first -- be heard first prior to the public hearing. CHAIRPERSON RAWSON: The county has requested to the members of the board that we hear Item 6(A), BCC versus Del Ackerman and Jay McMillian, CEB No. 95-009 first. Is there any opposition from any member of the board to moving that up on the agenda? Not having heard so and because that would probably be the least lengthy of the cases that this board is going to hear today, Page 2 July 25, 1996 then we'll do so. So the first case that we'll hear then is Board of ~ounty Commissioners versus Ackerman. MR. ALLEN: Mr. Chairman, I've got to recuse myself. CHAIRPERSON RAWSON: Let the record reflect that Mr. Allen has recused himself. Mr. Murray, how are you this morning? MR. MURRAY: Great, Miss Rawson. How are you? I represent the Ackermans, and I'm glad to see that Mr. Allen has recused himself, because he was ultimately involved in this both as a former chairman of this board and also as the general contractor. MR. ANDREWS: Could you move closer to the mike? We can't hear you. MR. MURRAY: How's that? Is that better? For the record, I'm glad to see that Mr. Allen recused himself. I think we have less than a forum at this time; is that correct? CHAIRPERSON RAWSON: Well, my attorney and I have discussed this, and I guess I'll call on him to tell you what decision we've come to. MR. KOWALSKI: I believe that it requires a forum of a majority of the board being for -- being a meeting, but that if a board me~~er recuses himself, the remainder of the panel, even though not a forum, can proceed to hear a matter and to vote by majority rule of those voting and present on that particular issue. The board may want to ask Mr. Murray whether he objects to that procedure. CHAIRPERSON RAWSON: Mr. Murray, would you rather that -- since there's only three of us left that we not hear this because that's -- if you want to roll it over until -- well, I don't know ~bout next month. I don't think so. It looks like we have a full day ~ext month, but if you want to roll it over to a later meeting, we certainly understand and would accommodate you. MR. MURRAY: All right. Can I check with my clients to see if they want to do that? CHAIRPERSON RAWSON: Certainly. Certainly. MR. MURRAY: Your Honor, we're ready to proceed. CHAIRPERSON RAWSON: Fine. MR. MURRAY: And if I call you Your Honor, it's because I hold you in such high esteem and, also, they can't teach old dogs new tricks. CHAIRPERSON RAWSON: That's -- that's just fine. As I said last month this is not -- not the Supreme Court, and I -- not in my wildest dreams. I don't think I'm the chief justice, but it's wonderful, Mr. Murray. Thank you. We'll call on the county first. MR. MANALICH: Madam Chairman, I have a point I just want to bring to the attention of all parties -- Mr. Kowalski as well as Mr. Murray and any other interested parties, and that will include Mr. Gebhardt who's here today and wants to be heard. Ninety-- Ordinance 92-80 at paragraph 7 does mention that for purposes of fact-finding the finding shall be by motion approved by majority of those members present and voting except that at least four members of the board must vote in order for the action to be official. Now, I just -- I don't know if that had been considered by everyone involved here, but, obviously, I don't want to go through a fruitless exercise if the same concerns that I have noted are shared by the rest. CHAIRPERSON RAWSON: Now, is it your opinion that we can waive that rule by agreement? Page 3 July 25, 1996 MR. MANALICH: Give me just a moment, please. CHAIRPERSON RAWSON: Sure. Ramiro, would you give us the cite again. MR. MANALICH: Ordinance citing 2-80. I show it on page 7 of the ordinance. Now, the alternative that I just consulted Miss Sullivan with could be if we wanted to go forward and take whatever evidence is going to be received today. We would need another member, obviously, to vote, but I suppose that member could review the transcript of the evidence and then vote at that time. It's a little more cumbersome. CHAIRPERSON RAWSON: Mr. Murray, it's up to you. Basically, I think we need four members here to vote. MR. MURRAY: The only thing that I would like to record would be the testimony of an individual who's given his time to be here, and then we can record that. And then I'd prefer to have people give testimony so that they can judge their credibility when, in fact, the voting members are here that are going to see it, evaluate it, and then decide. CHAIRPERSON RAWSON: Understood. MR. MURRAY: Mr. Schwartz has been kind enough to take time out to come here and to give his testimony. It's short testimony. I would like to record it so that he would not have to come back again. He is doing us a favor by doing this. CHAIRPERSON RAWSON: Let me ask the county attorney. How do you wish to proceed? Mr. Murray would like the witness that's present here today in the commission chambers to give his testimony, at which time, of course, you'd have the opportunity to cross-examine him, record that on the record, use that transcript so he won't have to return next time, and continue the hearing until whenever you -- Maria and Linda tell me, probably September. MR. MANALICH: Yeah. It would appear to me that, I guess -- if you could do that today, I mean, I -- do you have any objections to that? I mean, I don't have any objection to that if that'll take care of that particular witness. MR. MURRAY: Let me check with the witness. If he can come back, we'll just have everybody come back, just make it clear at that time. MR. McMILLIAN: I'm going to object to that also. I'm Jay McMillian. If his testimony's recorded, then I'd like the testimony of these pictures be shown to the board today and my testimony be recorded today. MR. MANALICH: Madam Chairman and Mr. Kowalski, it appears to me, as I look at the ordinance, that the word "shall" is used, and to me that indicates that there has to be four to vote. Now, I don't know, Mr. Kowalski, if you share that opinion or not. I just raise that because I don't want to go through a fruitless exercise. If that's the case, you know, we may -- you know, Madam Chairman, even though in August we do have a full day, I would suggest that today's going to be a full day with the Lely matter, I expect. If we have the other matter that is scheduled in August, we might be able to take this up prior to that hearing that morning is the alternative that I see. CHAIRPERSON RAWSON: August 22nd is the next date we are Page 4 July 25, 1996 set to have a rather full day -- hearing because it involves the Pacific Land Company case. But we are willing to hear this matter first at 8:30 if that would work. MR. MURRAY: Again, Miss Chairman, we're willing to waive. Certainly, we'll come back and do that if you say so. CHAIRPERSON RAWSON: Well, let me ask you this. Would you prefer -- and I should ask your witness who has come today. Would you prefer August 22nd, or would you prefer the September date, which would be the fourth Thursday? MR. MURRAY: He has no idea. Whatever is best for the board. CHAIRPERSON RAWSON: Well, again, I apologize to you and to you, Mr. McMillian, that we don't have a full board here today. Hopefully, we will in August. The chances are pretty good that we will in August, so why don't we just continue your matter to be heard in full on August the 22nd. We'll take your matter up first at 8:30. MR. MANALICH: Madam Chairman, the only other request I have is that everyone concerned could stipulate here today that that will be sufficient notice to everyone to appear on the 22nd to hear this matter involving the imposition of fines without the necessity of further communication. CHAIRPERSON RAWSON: Is that a problem, Mr. Murray -- MR. MURRAY: That's not a problem. CHAIRPERSON RAWSON: so that the county won't have to give you notice again? Is that okay with you, Mr. McMillian? MR. McMILLIAN: Yes, ma'am. CHAIRPERSON RAWSON: So the record reflects then we have a stipulation that everybody waived the formal notice that's required under the ordinance and that this matter will be continued to be heard at 8:30 on August the 22nd, 1996. Thank you. MR. MURRAY: Thank you. CHAIRPERSON RAWSON: Now, let me ask the county attorney, probably Mr. Bryant now, to call the next case. MR. BRYANT: May it please the board. We're here in the matter of Collier County versus Lely Barefoot Beach Property Owners Association. Let me have one moment. It's styled the Board of County Commissioners, Collier County, Florida, petitioner, versus Lely Barefoot Beach Property Owners Association, Inc., a Florida corporation, and Lely Barefoot Beach Master Association, Inc., a Florida corporation, and CEB No. 96-012, Madam Chairman. CHAIRPERSON RAWSON: Thank you, Mr. Bryant. Before we get started this morning with the county's presentation, let me have the learned counsel that are seated in front of me identify themselves for the record. MR. HAZZARD: Madam Chairman, I'm Bill Hazzard from the law firm of Cummings and Lockwood. Mr. Larry Pires is with me as well from Cummings and Lockwood. We expect to be joined later in the day by Cathy Reiman. CHAIRPERSON RAWSON: Thank you. Well, let's start with the county's case then. MR. BRYANT: Thank you, Madam Chairman. MR. HAZZARD: Madam Chairman, my understanding is that we need to state on the record that we want this hearing to be transcribed and so -- Page 5 July 25, 1996 CHAIRPERSON RAWSON: It is being transcribed. We transcribe them all now, Mr. Hazzard, but I appreciate your concern. MR. BRYANT: May it please the board. I would like -- since we're going to probably be here, I would guesstimate, most of the day, and some of the witnesses are going to take some extended time and probably need some area to lay documents out -- and I talked to Mr. Hazzard about this. I would suggest that we have the witnesses sit here, and that way they can use the mike and have the table to be able to utilize -- you know, and spread things out. CHAIRPERSON RAWSON: If you and Mr. Hazzard agree to that, I certainly -- the board has no objection. MR. BRYANT: Thank you. At this time the county would call Rick Ewing, Madam Chairman. MR. HAZZARD: Madam -- Madam Chairman, just for a point of order, do we make opening statements first, or are we going to go right in with witnesses? CHAIRPERSON RAWSON: Well, I think it's probably a good idea for the board's benefit if each of you would give us an opening statement so that we know what the issues are. MR. BRYANT: Okay. Thank you, Madam Chairman. May it please the board. I'm David Bryant. I represent Collier County. The matter before you today is 1 that has been before Collier County for a number of years. I submit to the board that I'm sure you've read a lot of the accounts of this. The issue is the Lely Barefoot Beach guardhouse and whether or not the new guardhouse that sits right at the entrance into Lely Barefoot Beach development in the middle of the road is properly situated; whether or not it is in the tract of land it's supposed to be; whether or not it is within the PUD, the planned unit development, for Lely Barefoot Beach as approved by the Board of County Commissioners. It's the county's position -- and I'm sure that the board is well aware of what a PUD is. You know that a planned unit development is basically an agreement between the contractor and the county. It's an agreement that the contractor -- or the developer says, If you will let me develop this project in a particular way, I will do this; and the county says, We will let you do that, and we will give you this -- we will give you this planned unit development designation. We will give you, maybe, density considerations, development strategies, phase your project. Anyway, it's the county's position this is a contract between the county and the developer. The county maintains that the Lely Barefoot Beach guardhouse as it sits today -- and we're talking about the new guardhouse, not the old guardhouse. And you'll hear throughout the day the old guardhouse versus the new guardhouse. The new guardhouse is the 1 that sits up at the front that's a free-standing building, as I said, sits right in the middle of the road. It's the county's position that it was built there improperly; that it was not properly permitted to be there; that the permit as drawn from the county by the builder of the building for the developer was a permit that was erroneous. It misled the county. It was not truthful in the application. It should never have been given to the developer as it was. But it was and was built; however, it's the county's position and the case law in Florida, I would submit to Page 6 July 25, 1996 you, says that a county cannot -- or a local government cannot be required to violate it's own ordinances, the ordinances being those that apply to building development, and that the granting of that permit is not a prohibition to the county, once it finds that the permit was granted wrongfully, to require the correction of it. But the majority of the testimony you're going to hear today is going to deal with what is a planned unit development, what is the legal requirement of that, and what are the requirements in the Lely PUD as far as where a guardhouse may be located. And it's the county's position that, 1, the Lely Barefoot Beach guardhouse is outside the PUD. It is not within the planned unit development for Lely as agreed to by ordinance by the developer with the county. And, two, that the guardhouse was improperly built and that the permit was not proper as it was drawn by the developer. Thank you. CHAIRPERSON RAWSON: Thank you. Mr. Hazzard. MR. HAZZARD: Thank you, Madam Chairman, members of the board. I have to confess to you that I almost didn't come today, and the reason I almost didn't come today was that I had quite a surprise Tuesday morning when I opened my Naples Daily News and there was an article that told me I'm dead on arrival here today. It says, "Although the Code Enforcement officials are expected to uphold commissioners' desire to remove the guardhouse" -- are you folks aware that you're expected to do that today? And then later on it says, "The outcome of the Code Enforcement hearing could end the case if Code Enforcement decides to side with Lely residents. More likely, they will agree with commissioners and order the structure removed." Well, I hope that's not more likely as of last Tuesday. So I almost didn't come. But then I got to thinking about what my own experience has been with the Naples Daily News, and my experience is that they get about half the story right. The reason that I know that is that when I read a story in the Naples Daily News that contains information that I'm familiar with, I go through and I say, Yeah, they got that right. Yeah, that's right, that's wrong. And so I figure they're about 50 percent. The thing that concerns me is when I read a story that I don't know anything about, I know that's about 50 percent right, too. But I just can't tell which 50 percent is the right 50 percent and which is the wrong 50 percent. So I hope if you've been reading the Naples Daily News about the Lely Barefoot Beach guardhouse that you'll wonder which 50 percent you read is right and which 50 percent you read is wrong. I hope that you will rely on the facts that you hear today to make your determination. I don't want to think that I'm dead on arrival. So I applied my reasoning and my experience with the Naples Daily News, and I decided that I would come today. And here are the facts you're going to learn about. First, Lely Beach Boulevard, the entry way into the Barefoot Beach subdivision, is a private road. There's not a nickel of tax money to build it. There's not a nickel of tax money to maintain it. It's owned by the homeowners association, used to be owned by the developer. There's been a guardhouse sitting in the middle of that road in the median strip since it was built, almost 20 years there's been a guardhouse. Mr. Bryant referenced the old one and the new one. For the first ten Page 7 July 25, 1996 years or so, there was a guardhouse. down the road, and I might show you a picture. This is what I'm talking about. You can see this picture says existing guardhouse and new guardhouse, and you'll hear more about this document later as the day goes on. But here's Bonita Beach. Road. This is the old guardhouse. This is the new guardhouse. So there's been a guardhouse in the middle of the road for almost 20 years. And the other thing you need to know, this road comes winding through this private subdivision and at the end of the road, a couple miles down the road, there's a county park. A county park encompasses a piece of state land and a piece of county land, hundreds of acres. The state-owned land is at the very, very end. It's down by Wiggin's Pass and that's been owned by the state for quite some time. The state purchased that land and at the time they did, it was unreachable. You couldn't get there. There was an easement that the state had that went across what's now the Lely Barefoot Beach subdivision. That easement was impassable. It was wet. You go through the water. You go through marshes, sensitive environmental lands. You could never build a road there. So when Lely Development Company started putting their development in, they did some swaps with the State of Florida over the easement and the State of Florida wound up with an easement to use this road. Of course, the State of Florida also agreed, you'll learn today, that that road could be gated because the State of Florida at the time the easement was granted regarded that piece of road -- that piece of land to the south as a very special place. It was preserve-type area. It was sensitive environmental-type area. Hardly anybody would ever get -- get to go down there. It was just kind of in the land bank. So Lely Development Company agreed to build the road that's now Lely Beach Boulevard. Now, I need to stress to you at this point I don't represent Lely Development Company. They're long gone. I represent the homeowners who live at Lely Barefoot Beach, the folks who paid money to buy the houses and live out there. I'm not paid by Lely Development Company. Lely Development Company gave the State of Florida right to use that road if they ever would need to use it and called it easement. I'm sure you folks are familiar with easements. And the State Department of Natural Resources agreed with Lely Development Company that the gates across the road that everyone knew were going to be there could stay closed until such time as the state might open that land, which was not expected, and then the rule was the agreement was that when the state land is opened, the gates open. When the state land is closed, the gates can be closed and the residents can regulate traffic into the subdivision. The thing you need to understand about an easement, about this particular easement, is it's not an exclusive right to use the road. It doesn't mean the state can use it and nobody else. We're sharing it. It's a simple concept that we all learn when we're kids. Let's share the road. If you ever need it, you need it. Go ahead. Use it to get down to your piece of land. Now, when Lely started putting that subdivision together -- and it's a planned unit development -- they built the guardhouse in a location a few hundred yards south of where it is today. State land was closed. Everybody was happy. Things were moving smoothly. Page 8 July 25, 1996 You couldn't even take the road all the way to the state land at that time. The road just went through the beginning stages of the subdivision, then there were a mile or so of undeveloped land, no road. In 1985, you'll learn today, the County Commission adopted a revised PUD ordinance for the Barefoot Beach subdivision. Land was still closed down at the end, the state land. The revised PUD ordinance has some very important language in it that you're going to read today. There's a section that describes the gatehouse complex site. Now, the gatehouse complex site is in ~omething called tract A. Tract A is on the side of the road that's coming -- this winding road. The gatehouse complex site envisioned some buildings -- it's more than one building it talks about facilities, plural, in the gatehouse complex site. The section of the ordinance adopted in 1985 that says -- describes the setbacks, it says from Lely Beach Boulevard, no setback. Then it says portions of the security gatehouse facility may extend into and over Lely Beach Boulevard right-of-way. Now, the thing you need to understand is the time the County Commission adopted that ordinance there was a guardhouse standing alone in the middle of Lely Beach Boulevard. Portions of the security gatehouse facility can extend into and over Lely Beach Boulevard means it's okay to be there. It had been there for seven years or so when the County Commission adopted the ordinance. It was there when they adopted it. Everybody could see it. Everybody knew that's what that meant. That was a portion of the security gatehouse facility extending into and over the Lely Beach Boulevard right-of-way. Well, that was 1985. Things were fine. Everybody's happy, still can't get to the state land down at the south. In 1987 Lely Development wanted to sell a piece of land that it owned immediately north of the state-owned land. There was some talk about who might buy it. Maybe Audobon Country Club, which is kind of to the east, would buy it to have some sort of access to the beach through there, who knows. But a likely candidate to buy it turned out to be Collier County. So in June of 1987 Collier County and Lely Development entered into an option agreement, an option to buy the land. We'll give you 50,000 now for the option to buy it for 3 million later. You're going to see this option agreement today, and it. contains some real specific language, because Lely Development was now getting worried about how big is all this land down at the south end of our development going to be because that might be a nice idea, nice place to go and all that. It was environmentally-sensitive land that the state was going to own. Okay, maybe not too many folks are going down there. Now, they're going to sell a chunk of this land to Collier County. And so in the option agreement that Collier County signed, voted on I believe it was five, nothing by the Collier County Commission as it was constituted in 1987, they included language that says -- and you'll read today -- here's how we're going to run things after we buy this piece of land for a county park. If we buy it. If we take the option, and here's how Collier County said they would run things. Page 9 July 25, 1996 They said we agree to limit the number of parking spaces that are going to be at that park. We agree to limit the number of vehicles accessing the park to the number of parking spaces that we have. And we agree that when the parking lot is full, access to the subdivision will be closed at the intersection of Bonita Beach Road and the entrance to the subdivision, Lely Beach Boulevard. So in other words, when there's no more cars in the parking lot -- I mean, when there's no more spaces in the parking lot, the parking lot's filled up, close the road. And then the agreement says and when spaces become available open the road, send some more folks down. It makes a whole lot of sense. I think of it like this when I -- when I get up this morning, when I poured my orange juice into my glass, I quit pouring when the glass got to the top. If I had kept pouring and orange juice would have spilled allover the place, there'd be a lawyer with orange juice on his shoes standing in front of you today, and I'd look stupid. And it was stupid then and it's stupid now to have folks keep driving down that road even though there's people in the parking lot and they can't park a car there. Then they got to turn around and come back up. Did I mention that's a two-mile drive? Well, that's a heck of a thing. So four miles round-trip. So the county in it's infinite wisdom and Lely in it's infinite wisdom said here's how we're going to fix this, close the road when the parking lot's full. Good idea. That was June of 1987. That was the deal. In November of 1987 the county exercised it's option. They paid Lely the 3 million bucks and they bought the park land. The option agreement had a clause in it that said, by the way if we do buy this, all this stuff we're signing up to do, we'll sign another agreement at the closing called a use access agreement that will contain all these same terms. We'll solidify this deal. And they not only did that, but in the option agreement they also have a clause that says the terms of this option agreement will survive the closing. And I know an attorney like Miss Rawson knows what that means. That's in there because when a sale of real estate takes place typically you get a deed when you're the buyer. And the deed gives you what the deed gives you. And there's no saying after you get the deed, oh, wait a minute, wait a minute, the deal was something else, too. You know, it also told us this, that, and the other thing. Typically when you buy real estate once you get the deed that's what you get. But importantly in this option agreement it said, one, we'll sign a second contract at the closing; and, two, the terms of this agreement will survive the closing. So the county bought the land in November of 1987 and the Collier County Commission -- the Chair of the Commission signed this use access agreement. And the use access agreement contains the very same language that the option agreement contained, that language that keeps me from getting orange juice on my shoes, that language that keeps cars from streaming down the road even though there's no place to park. When the parking lot is full, access to the subdivision will be closed at the entrance of Bonita Beach Road right up at the front. Well, that was 1987. Now, there was just one problem. That deal was set. Closing happened in November of '87, but the guardhouse in November of '87 was not up at the entrance to the subdivision by Bonita Beach Road. Remember the picture that I showed you? Here's the old Page 10 July 25, 1996 guardhouse. Here's Bonita Beach Road. It's up here. Lely needed to move the guardhouse up the road in order to implement the contracts, two, that Collier County had signed when it bought it's land. So they got to working on a plan, and they submitted it. They applied for a building permit. Oh, one thing. Another reason why they needed to move it north on the road is that where it was presently located the road was narrow and there was a building right up against it. You couldn't turn a car around there, but north on the road the road was wider, and you could turn around if the parking lot was full. So Lely applied for a building permit. You'll hear testimony today that there was a lot of back and forth with Collier County building officials about exactly where the guardhouse was going to be located. They applied for the building permit in early March of '88, and the permit wasn't issued until April of '88. So there was about a month of stuff going on in the mystery of the county things that they do. But the county issued the building permit for the guardhouse in April of '88. And then construction went on, and in June of '88 after multiple inspections, one of which you'll see today, says zoning inspection passed. After these multiple inspections Collier County issued a certificate of occupancy for the guardhouse June 1988, June the 14th. And things still went along swimmingly because the road still didn't go all the way to the county's land, and the county then needed to develop park facilities and things like that. So there's still not a whole lot of folks using the road to go down because you can't get all the way to the what are now the public facilities. But everybody knew that the county was going to run a park there. And in 1990 the county was ready to open it's park. We're now talking about two years after the guardhouse had been sitting in it's present location. The county, as the county will, opened the park with great fanfare, invited the dignitaries. Out goes the mailing to everybody. I happen to have it. Collier County Parks and Recreation Department division of public services extends an invitation to the dedication and ribbon cutting ceremony of the Barefoot Beach Preserve phase one Monday June 25, 1990, 10 a.m., Barefoot Beach Preserve, Lely Beach Boulevard, one mile south of the guardhouse, RSVP, et cetera. Here's some directions that are attached. Go west on Bonita Beach Road until you see the Gulf. On your left there's a new home development and a parking entrance to Lely Barefoot Beach. Turn left at this point and continue forward to the guardhouse. Stop at the guardhouse and identify yourself as attending the Barefoot Beach Preserve dedication. Continue approximately two miles on Lely Beach Boulevard and you'll see parking facilities. Stop at the guardhouse. Collier County not only agreed to this deal, issued a permit for it, issued a certificate of occupancy for it, they used it. They told people go use this thing. By the way there are some notations out in the county manager's office. They had 50 lemons, 75 fruit cups, sugar, Sweet & Low, napkins were white, spoons were beige, Catering with Class, $100. Man, this was a big deal -- and stop at the guardhouse. Collier County telling people, 1990. Now, I got to tell you. There's some growing pains that went on. Now we got a new deal. Now we got a park open. Now we got to stop people when the parking lot's full, things going back and Page 11 July 25, 1996 forth. For a couple of years they tried window placards. Okay, let's number all the spaces. We'll give everybody a placard with a number on it when they go in, and then when they come out drop it off, and then we know we can send somebody else down. They tried radio contact. Park ranger calls up, you know, send more people down. And some folks got their noses bent out of shape. And I don't know what Mr. Bryant has planned, but I'll tell you right now you may hear some people say the guard was mean to me, this was awful, that was awful, what have you. Yesterday's news. Growing pains. So things are going from 1990 or so forward. And somebody, I don't know who, in the county got this idea -- why don't we lease that piece of land to the south from the State of Florida. Let's lease it. So in 1992 they did. County leased the state's land. And the county plans to run the park, and the county's running the park. It's a county park with a 40-year lease on the state land and with the land that the county itself owns. Well, part of the deal when you lease -- when the county chose to lease that state land, they had to present to the State of Florida a land management plan. Well, in 1993 the county sent up its land management plan and it said, oh, you know, we have this deal with the residents of the subdivision we got to buy -- buy, you know, we're gonna close access to the park up at the entrance and that kind of thing. The State of Florida said, no, forget it. Just control entrance access at the entrance to the park land down on the south. Now, Collier County instead of living up to it's deal in the option agreement and the use access agreement that said, yeah, we'll close it up at Bonita Beach Road -- instead of doing that the county said let's count the votes. If we have more people that would rather use the big expanded park with leasing the land from the State of Florida, then we got residents in the Barefoot Beach subdivision. Screw 'em literally. Cast it aside. Forget the use access agreement. Forget the option agreement. County told the State of Florida, yeah, that's what we'll do and county quit closing the road at the entrance to the subdivision. Now, how do you like that? Where does the government -- Collier County officials get off doing that? So what happens? That's 1992. 1993 the actual land management plan was adopted. My clients, the residents of the Barefoot Beach subdivision, then spent some time trying to work it out with the county. Hey, wait a minute. What about this deal? Come on, look what we were promised. Trying to work things out -- trying to work things out through 1994. Finally somebody makes the magic statement to the county. We're going to sue you. If you don't do it, we're going to sue you. And the end -- fall time frame of 1994. Well, coincidentally if you look on your notice of violation, right around that same time, October the 19th of 1994, code enforcement investigator Dennis Mazzone determined that the guardhouse at the entrance to Lely Barefoot Beach violated county ordinances. Golly, that same guardhouse which said stop at and check in when you're going to ribbon ceremony? That same guardhouse that got put there in that spot so that we could implement the county's obligations? You know, I can't prove it, but I just think it's an amazing coincidence that the code enforcement officer made that determination right around the time my clients were starting to tell Collier County, you know, we're going to have to sue you. So one of Page 12 July 25, 1996 the mysteries that will be explained today is how it happened that the code enforcement investigator determined on October the 19th, 1994, that there was a violation and how it came to be that the notice of the violation was not given to my clients until February the 7th of 1996, 16 full months. In November of 1994, they determined -- I'm sorry -- October of '94 they determined the violation. In January of '95 my clients sued Collier County. It's a lawsuit that's pending in the building across the way in the circuit court. We want to enforce the use access agreement and the option agreement and the terms of the deal. Now, that's not in front of you today. We're not here asking you to enforce the terms of that deal. We're here asking you to see what's going on here to see what it is the county's trying to do. It's a squeeze play. The only reason this thing is in front of the Code Enforcement Board is to put the squeeze on the court case. What if we can get them to order to take the thing down? We'll win the court case. There's no way to implement the use access agreement and the option agreement terms. Brilliant. So after all those years, after all those times the county had used the guardhouse to implement the terms of the agreement, the county sold out my clients. Decided we'd rather have a bigger park. Sorry, fellows. You want to sue us, sue us. Well, you know what? A lot of neighborhoods around here can't fight city hall. A lot of neighborhoods don't have the scratch, don't have the dollars. Lely Barefoot Beach residents do have it, and they're fighting, and they're over in the courthouse across the way, and that's where this case ought to be fought, not here in front of you all today. Don't let yourselves be used by Collier County to gain an unfair advantage in the court case that's going on across the way. Now, you know from looking at the notice of violation that the code enforcement investigator determined in October of '94 that there was a violation, and you know from looking at it that the notice was issued in February of '96. With 16 months to work on it, you should expect the notice of violation in this case to be a model of clarity, a fine piece of work. You should expect it to be the standard by which you're going to judge all future notices of violation. And you're going to be disappointed, because the notice of violation when you read it, the thing you're supposed to decide about today doesn't say word one about the guardhouse is built outside the PUD zoning for Lely Barefoot Beach. That's what Mr. Bryant said he's going to prove today. Well, I don't know why he's going to prove that to you today because that's not what the notice of violation says we're here about. Not only is the county doing all these nasty things to my clients over the years, they're still making it up as they go along. You can read that notice of violation from here to next week, and it doesn't say anywhere the things built on land that's not zoned PUD, and we're going to learn that today. Well, you might be disappointed with the notice of violation that you get, and I hope come tomorrow morning there's one other entity in town that's disappointed. I hope it's the Naples Daily News. I hope they got to turn around and write, Golly, where'd we get off saying that these folks are going to side with commissioners and order the structure removed? How dare they say that that's what you're going to do on Tuesday when you're not even hearing about this case until Thursday? When you're done at the end of the Page 13 July 25, 1996 day today, after all those things that the county has done to my clients, you're not going to vote to knock this thing down. You're going to understand what's really going on here, and don't let yourselves be used to circumvent what's going on in the court case. Let everybody fight it out in court. At the end of the day today, I want you folks four, nothing to vote to quash this notice of violation, send them back packing, whatever you have to do. Thank you. CHAIRPERSON RAWSON: Thank you. County, you may continue with your case. MR. BRYANT: Thank you, Madam Chairman. At this time the county would call Rick Ewing, Madam Chairman. CHAIRPERSON RAWSON: Mr. Ewing, would you please state your name for the record, and we'll have the court reporter swear you in. And are you surveyor? That's correct. MR. BRYANT: Madam Chairman, Mr. Ewing as a expert in the area MR. EWING: Richard J. Ewing. THEREUPON, RICHARD J. EWING, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. BRYANT: Q. State your name, please, sir. A. Richard J. Ewing. Q. And what's your business address, Mr. Ewing? A. 3106 South Horseshoe Drive. Q. And how are you employed, sir? A. I'm employed as the principal land surveyor for Coastal Engineering. Q. What is a land surveyor, Mr. Ewing, please? A. A land surveyor is a surveyor that is licensed to -- to layout land and -- MR. LAFORET: Would you speak into the microphone, please. THE WITNESS: I'm sorry. A. A licensed surveyor does various kinds of surveys. We do boundary surveys. In this case, we did a survey of the guardhouse to provide the actual location in relation to the PUD and the platted subdivision of Lely Barefoot Beach, Unit 1. Q. Mr. Ewing, how long have you been doing surveying, sir? A. Approximately 14 years. Q. And what's your educational background? A. I have -- I went to school at the University of South Alabama, and I do have a high school diploma. Q. And have you taken an examination in Florida to be licensed by the Department of Business and Professional Regulation as a surveyor? A. Yes, I took the exam to become a surveyor, yes, and passed. Q. land A. licensed in Florida as a public -- or as a at this time I'd offer of land survey. Page 14 July 25, 1996 CHAIRPERSON RAWSON: Is there an objection? MR. HAZZARD: None. CHAIRPERSON RAWSON: Hearing no objection then you are qualified as an expert. MR. BRYANT: Thank you, Madam Chairman. BY MR. BRYANT: Q. Mr. Ewing, would you please tell the board, specifically, what did your crew do when it went out and surveyed the guardhouse at Lely Barefoot Beach. And if you need to refer to your drawings, please do that. A. Yes. This drawing -- can you hear me? There we go. This drawing -- MR. BRYANT: If I could have one moment, Madam Chairman. I think there is a mike that we can move around here. THE WITNESS: Thanks. BY MR. BRYANT: Q. All right, Mr. Ewing. If you would please tell the board what your crew did when it went out to survey Lely Barefoot Beach guardhouse in the entrance there. A. What we did was -- the scope of our services included locating the guardhouse itself that you see here. We did do a detailed location of it and all the improvements that existed within the -- within the right-of-way of Lely Beach Boulevard in order to show a kind of a -- an exhibit here what is actually constructed out here. We tied in the guardhouse to existing control that we found on the right-of-way -- Q. Let me interrupt you for a moment. What does "tie in" mean for the purposes of -- of the board and for their information? A. Just actually measuring angle and distance to the corners of the guardhouse and then measuring around, and just measuring all the improvements as you see here. They set up on the main controller two permanent control points shown on the center line of Lely Beach, then we tied in other monumentation that was found to accurately plot the right-of-way and it's relation to tract A, which is the platted line for Lely Barefoot Beach, unit 1. We tried to locate as many -- many monuments as we could. Q. Did you determine how far the guardhouse we're talking about the guardhouse up front, the new guardhouse, if you would -- is from Lely -- or from Bonita Beach Road? A. That's correct. It's the distance of 252.1 feet from the edge of the pavement to the closest corner of the guardhouse. Q. And did you determine how far the guardhouse was from the old guardhouse in tract A? A. Yes. It's -- my understanding is is that the old guardhouse was located in the -- what you see here is the landscaped median. I don't have an exact distance on there, but it would be -- it's a couple hundred -- it's a couple hundred feet. We could put a scale on it and get an exact distance. Q. Closer to Bonita Beach Road? A. That's correct, yes. This -- the new guardhouse is a couple hundred feet closer to Bonita Beach Road, yes. Q. Do you have an opinion within the bounds of reasonable planning -- or reasonable surveying certainty that that drawing that you've been referred to is a true and accurate description of the Page 15 July 25, 1996 survey done at Lely Barefoot Beach Boulevard entrance? A. Yes. Q. And is it? A. Yes. MR. BRYANT: May it please the board. At this time, Madam Chairman, I don't know how you'd like to do this, but I'd like this marked as county Exhibit 1 and move it into evidence without objection. CHAIRPERSON RAWSON: If you would have the court reporter mark the exhibit for you, and then I'll ask if there's any objection to this being introduced into evidence. MR. HAZZARD: No, there's not, Madam Chairman; however, my understanding of the rules that apply here is quite a bit less free-wheeling then in a court of law, but we try to observe due process, but that the rules of evidence don't apply, and, quite frankly, it's fine with me if we put the exhibits in without having to move them formally and things like. MR. BRYANT: I think it would be more appropriate if we do move them, Madam Chairman, for purposes of the record. CHAIRPERSON RAWSON: Mr. Hazzard, that's true the rules of evidence are somewhat relaxed here but it's been our practice to always make a formal motion to move things into evidence, and we are always cognizant especially in important cases like this to protect the record. MR. HAZZARD: Any way -- any way the chair wants to do it is fine with me. CHAIRPERSON RAWSON: Hearing no objection that will be introduced into evidence as the county's Exhibit No.1. (Plaintiff's Exhibit No.1 was marked for identification.) BY MR. BRYANT: Q. Mr. Ewing, are you familiar with the plat for Lely Barefoot Beach, unit I? A. Yes, I am. Q. And from your review of that plat, what is the designation of the roadway system on that plat? A. On Lely Barefoot Beach, unit 1, it is designated as tract R and is included in the -- in the -- in the plat. Q. The area that you've been referring to where the guardhouse is, is that situated in tract R? A. That's correct. Q. And does tract R run all the way up to Bonita Beach Road? A. That's correct. Q. Do you know how far south it runs down Lely Beach Boulevard? A. I don't have an exact distance, but I know that it runs through a series of -- you know, you have the -- they don't show it here. Well, on this exhibit here you have side street Anguilla and there's a series of side streets that come off of Lely Beach Boulevard, and it ends somewhere there, and then another platted subdivision picks up. Q. SO it's your testimony that tract R runs down past and would be off the board which is marked as in evidence as Exhibit I? Page 16 July 25, 1996 A. That's correct. Q. Did you also as part of your scope of work review the legal description for the PUD for Lely Barefoot Beach? A. That's correct. Q. I'd ask you to look at Ordinance 77-48, sir, and ask you if you are familiar with that and the legal description that has been tagged in it. A. Let's see. That's correct. Q. Would you please tell the board what that legal description refers to, and if you need to -- taking exhibit -- which I would at this time have marked as -- for identification purposes as Exhibit 2. CHAIRPERSON RAWSON: We probably should have the court reporter go ahead and mark that as county's Exhibit No.2, and I'll ask the same question of counsel if he has any objection to the introduction in evidence of that exhibit. MR. HAZZARD: None. CHAIRPERSON RAWSON: Having heard none we will also introduce that into evidence as the county's Exhibit No.2. So I'll stop talking now so the court reporter can mark the exhibit. MR. BRYANT: Thank you, Madam Chairman. (Plaintiff's Exhibit No.2 was marked for identification.) BY MR. BRYANT: Q. Mr. Ewing, if you would, please, describe for the board members the actual legal description of the Lely Barefoot Beach PUD development, sir. A. The legal description -- I'll just go ahead and read it here. "The subject property abuts the Gulf of Mexico on the west and the inland tidal waters of the state on the east. It extends in a north-south direction for approximately two miles and lies very near the northern Collier County line." The precise legal description is as follows: "All land lying in sections -- Section 5, Section 6, Section 7, and Section 8, township 48 south, range 25 east, Collier County, Florida; lying west of the agreed upon boundary line as described and recorded in O.R. book 68, pages 235 through 250 inclusive, in the public records of Collier County; less and except the following described parcel." Q. If you would stop right there and point out to the board what the gross area you just read before you less out that section, and if you would tell the board when it says lessing something out of a legal description what that means from a surveying standpoint. A. The -- this is a -- what they mention here sections 5, 6, and 7, of course, is the entire property that runs all the way to the county what is the difference between the county and the state line at the park. All that -- there's an agreed property line that they referred to which is recorded in O.R. book 68, 235, 250. The property is -- let's see here. It's bounded on you know, it says abuts the Gulf of Mexico and the tidal waters of the state to the east, which is, you know, on the other side of the of the -- what's now Lely Beach Boulevard, and it's lessing out this description which I've outlaid here, which begins at the northeast corner of the section which is on the center line of Bonita Beach Road (indicating) . Page 17 July 25, 1996 Q. If you would point out to the board the area that is actually taken out of the Lely Barefoot Beach PUD. A. The description starts here at the corner and runs along the section line (indicating). Q. You're referring to what would be the northwest or the northeast corner? A. Yes, the northeast corner of Section 6 and then you would run west along the section line for 33-96-61 to a -- it refers to a GAC monument. Q. What's a GAC monument? A. GAC monuments are old control monuments that are referred to on unit 1 of the plat. Unfortunately, a lot of these monuments aren't still in at this time, but they are referenced in a lot of legal descriptions, and it is referenced on the Lely Barefoot Beach unit 1 plat. Q. And then where does the line run, Mr. Ewing? A. It continues to the mean high water line of the Gulf of Mexico, and it runs in a southeasterly direction to a line that intersects a bearing off of what's now Anguilla Lane and that's this tie right here. It's kind of confusing the way they describe this part, but they reference this point from the monument. They did reference it from the GAC monument that's a direct tie, and then it runs to the approximate -- you know, to Anguilla Lane and then along the boundary of Anguilla Lane along tract A -- which is tract A of unit 1. And then it goes across -- across Lely Beach Boulevard to a line that's 50 feet seaward of the mean high water line and runs along the mean high water line. It just gives a northerly and easterly direction to intersect the east line of Section 6 and then northerly along the section line to the point of beginning to close the legal description. Q. SO is it your opinion within the bounds of reasonable surveying certainty that that area is not part of the Lely Beach PUD? A. That's -- that's correct. Q. Okay. I'd ask you also, Mr. Ewing, to look at Ordinance 85-83. MR. BRYANT: At this time, Madam Chairman, I would ask that Ordinance 77-48 be marked and admitted into evidence without objection as county's Exhibit 3 and also that Ordinance 85-83 be marked and entered into -- in evidence without objection as county's 4 . MR. HAZZARD: No objection. CHAIRPERSON RAWSON: Hearing no objection we'll introduce them both. Ordinance 77-48 as county's Exhibit 3 and 85-83 as county's Exhibit 4. And I'll ask the court reporter to please mark those. MR. LAFORET: Counselor, would it be possible to raise MR. BRYANT: I think you might want to wait. (Plaintiff's Exhibit Nos. 3 and 4 were marked for identification.) MR. LAFORET: Would it be possible to raise those charts to the top clip and have your witness stand and point out because his chair and his head completely obliterate -- and I want opposing counsel to understand that we are, in fact, interested in listening to Page 18 July 25, 1996 all evidence. MR. BRYANT: Is that better, sir? MR. LAFORET: That's all right. BY MR. BRYANT: Q. If you would, Mr. Ewing, point those points out again for the purposes -- for the benefit of the board. A. Okay. The less and excepted part of the PUD begins at the northeast corner of Section 6, runs along the section line to what is known as a JAC (sic) monument, then the legal description continues on the same course to the intersection of the mean high water line of the Gulf of Mexico, then runs in a southeasterly direction along the mean high water to a point that is referenced from the GAC monument. It's kind of -- which I guess you'd call it like a bearing -- bearing intersection -- runs along that line and goes along the boundaries of what is known as tract A of the Lely Barefoot Beach unit 1 subdivision, and it goes here and then it gives a bearing to go to a line that intersects a line that's 50 feet seaward of the mean high water line of Little Hickory Bay. Then it just gives a general northerly and easterly direction along that mean high water line until you intersect the east line of Section 6. Just understand that I show this as a straight line but, of course, the mean high water line if located -- we would have it, you know, just kind of meandering through here in an easterly direction and then back to the point of beginning. MR. BRYANT: Anything further, sir? MR. LAFORET: Thank you. MR. BRYANT: Would you like him to go through the other one? Was it hard for you to see the first exhibit? MR. LAFORET: No. I stood up and looked at it, but he makes more money than I do so he can stand up. BY MR. BRYANT: Q. Mr. Ewing, I'd like you to look at the legal description of Ordinance 85-83, which is in evidence as county's 4. That's tabbed in the rear. And I'd ask you to compare that to the legal description that is in county's 3 and tell me whether or not that is the same legal description, sir. And does that legal description less out the same area as the first one? A. That's correct. These appear to be the same legal description and less out the same parcel that I previously described. Q. SO it's your opinion within the bounds of reasonable surveying certainty that both ordinances excluded this area that you have described to the board earlier and is not part of the Lely PUD? A. That's correct. Q. You can sit back down if you want to. MR. BRYANT: If I might have one moment, Madam Chairman. CHAIRPERSON RAWSON: Certainly. Q. Did you determine as part of your surveying and review of the plat for Lely Barefoot Beach unit 1 where tract A was, Mr. Ewing? A. That's correct. Q. And where is tract A, if you would describe that and show that to the board, please. A. Tract A is right here (indicating). I've got it labeled here. It shows the existing structure. We did a pretty detailed location here showing kind of everything that was within tract A Page 19 July 25, 1996 adjacent to the right-of-way. And also locating the median out in front of tract A. Q. And did you determine where tract C was also? A. That's correct. Tract C is a tract that is on the north side or I'm sorry -- on the east side of Lely Beach Boulevard and runs along the mean high water line of Little Hickory Bay as it's easterly boundary. Q. And did you determine the two-story guardhouse and whether or not it was in tract A, which we would refer to as the old guardhouse? A. Yes. It is -- it is not in tract A. Q. It's not or is? The old guardhouse. The one that you've shown down here as two-story -- A. That's correct. Q. And that building, the two-story building, is in tract A? A. That's correct. Q. And did you determine that the roof line of that building overhung the right-of-way of Lely Beach Boulevard? A. That's correct. Q. Can you determine approximately how much it overhangs the roadway? A. The -- yeah. What I've got -- what I have on here is I show a 4 1/2-foot overhang. It appears to be approximately 4 feet. I don't have that exact distance shown on here, but it is clearly ~- the heavy line here is the right-of-way line, and then the dashed line it shows the overhang. Q. SO would it be your opinion that that overhang or the roof line extends over Lely Beach Boulevard? A. That's correct. MR. BRYANT: No further questions, Madam Chairman. Thank you, Mr. Ewing. CROSS-EXAMINATION BY MR. HAZZARD: Q. Good morning, Mr. Ewing. I have just a few questions for you. First, just there at the end Mr. Bryant referred to the old guardhouse and talked about this structure on tract A. Is that what you call the old guardhouse, or when you were referring to the old guardh0use earlier were you talking about something else? A. I've been told that just because I was not employed -- I was not working as a surveyor in this area at the time the old guardhouse existed, and that's my understanding of the old guardhouse. Q. Your understanding of the old guardhouse is that it was where? A. That it was within tract A. Q. And did you mention something earlier about distances from this landscaped strip and that something used to be there? What was that about? A. It was my understanding that there was -- at one time that there was -- that this was used as some sort of way of -- of access -- limiting access into -- through Lely Beach Boulevard. Q. Okay. Just so that the board is clear when I'm speaking about the old guardhouse, I'm talking about a structure previously located in the median and, I don't know why the county attorney is Page 20 July 25, 1996 locating the structure on the side of the road, and I don't know how we're going to keep that clear all day. But when I say old guardhouse, I'm talking about something that used to be out in the middle of the road kind of across from this building, just so there's no confusion, although I can tell already there's gonna be. Mr. Ewing, let me understand. You took the legal description out of Ordinance 77-48 and you drew it; right? A. That's -- Q. This is -- this depicts the drawing of A. That's correct. The less and excepted Q. And that's -- this line here goes like (indicating)? A. That's correct. Q. Okay. And you're not opining today that that legal description is the correct legal description are you? MR. BRYANT: Objection. I would submit to the board that's exactly what he's given his opinion on twice. MR. HAZZARD: Excuse me. I believe that he's implying that he drew the legal description. BY MR. HAZZARD: Q. I'm simply asking if you have any basis of knowing that that's a correct legal description. Did you do any independent check? Is it your opinion that that's the correct legal description, or are you prepared today to say whether it is? A. That is -- I'm saying that that is the legal description that is in the PUD and that's how it plots. Q. Okay. That's fine. Are you opining today, at all, that the legal description is consistent with the rest of the PUD document? Have you read the rest of the PUD document? A. Yes, I have. Q. And is it your opinion that it's consistent or it's not, or have you not been asked to give that opinion today? A. I guess I don't understand what you mean by consistent. Q. Okay. That's fine. Have you been asked today to give an opinion as to who owns the land where the guardhouse is located? A. No. Q. Do you have any idea who owns the land where the guardhouse is located? 11R. BRYANT: I'd like to know what guardhouse we're speaking about. As Mr. Hazzard has so aptly put, we are -- we are going to have confusion as to which guardhouse we're referring to. And I'd like for us to at least know which one we're talking about. MR. HAZZARD: I'm talking about the guardhouse that we're here for the violation of -- the alleged violation today. CHAIRPERSON RAWSON: Just to make the board really clear, we're talking about two old guardhouses and one new guardhouse. MR. HAZZARD: Right. CHAIRPERSON RAWSON: existing guardhouse? MR. HAZZARD: Yes, the existing guardhouse. 11R. BRYANT: There are two existing guardhouses, Madam Chairman, I would submit to the board, one in tract A and one in tract R. It might be easier if we referred to it as the new guardhouse at the front. And then if Mr. Hazzard wants to refer to the other that? parcel, yes. that Is your question referring to the Page 21 July 25, 1996 guardhouses, refer to those as the old guardhouse either in tract A or in the median. MR. HAZZARD: Why don't I just refer to it as the guardhouse the county wants us to take down today? The guardhouse the county wants us to take down today. CHAIRPERSON RAWSON: Is that in tract R? MR. HAZZARD: Yes. CHAIRPERSON RAWSON: Okay. So the guardhouse that's the subject of our discussion today is in tract R. BY MR. HAZZARD: Q. Are you offering any opinion today as to who owns the land where the guardhouse that we're here fighting about today is located? A. tract R, Q. County? A. Not is owned, no. property, I think, is owned entity. Q. SO you don't know who owns the road, do you? A. I've been -- Q. You've been -- no, go ahead. A. No. I have not been asked to give an opinion on who owns the property where the county is. Q. Okay. Have you reviewed the -- have you reviewed to any extent the notice of violation that we're here to talk about today? Have you read it? A. No, I have not. Q. I'm going to hand you a copy I'll share with counsel. This is the notice of violation that I believe the members of the board have in front of them today. I've highlighted an area on that notice of violation. And in the column on the left up towards the top it says address of violation, street address and/or legal description within Collier County zoning district -- what does that say? A. PUD 77-19. Q. Parentheses -- A. Parentheses, six. Q. Close parentheses? A. That's correct. Q. Anybody ask you to do any work on PUD 77-19, parentheses, 6, closed parentheses? A. Not that in particular. Q. You don't recognize that PUD as a number at all? A. Well, the PUD has -- was revised in '85. Q. Okay. So your initial testimony was that you used a legal description out of Ordinance 77-48; correct? A. That's correct. Q. And then the '85 revision became, I think, 85-83; is that correct? A. That's correct. Q. So you don't know what is that's listed on this notice A. Not right offhand I do Just the guardhouse? The guardhouse is located within and it is my understanding it's owned by the county. Your understanding is that tract R is owned by Collier That this whole -- this whole I don't think is owned by anyone this zoning district PUD 77-19(6) of violation, do you? not. Page 22 July 25, 1996 Q. I don't either. We're in the same boat there. Would you turn over the second page of that notice of violation. You see it says violation one and there's some underlined language and then also a paragraph that begins, "this is in violation of Collier County PUD No. 77-19(6), Ordinance No. 85-83." You see that language? A. Yes. Q. Well, Ordinance 85-83 is the ordinance that you were talking about; right? A. That's correct. Q. Well, does that indicate to you that PUD 77-19 is Ordinance 85-83, or am I just reading that wrong? A. It just -- it appears to me that they're mentioning the Ordinance 85-83 as if it were a revision to 77-19. Q. Pretty confusing, isn't it? MR. BRYANT: Objection. Argumentative. MR. HAZZARD: I'm sorry. I'm just confused by the county's notice of violation. I have no further questions. Thank you. CHAIRPERSON RAWSON: Any redirect? MR. BRYANT: Just briefly. REDIRECT EYJU1INATION BY MR. BRYANT: Q. Mr. Ewing, are you familiar with how PUDs are amended from time to time? A. Yes. Q. And have you participated as a surveyor in the amendment process of PUDs? A. I, as a surveyor, do not participate in the actual amendment. Our firm does this on a routine basis and they -- it's more they usually negotiate with the developer and the county to have it amended, but, yes, it's a routine thing that happens. Q. I assume you have had an occasion from time to time to go out and take an existing PUD and do survey takeoffs from that for different areas that might be used in that PUD as an amendment; is that correct? A. That's correct. Q. And does it appear to you that 85 -- 85-83 is an amending PUD and amends the Lely Barefoot Beach PUD? A. Yes. MR. BRYANT: No further questions. Thank you, Mr. Ewing. CHAIRPERSON RAWSON: Any recross? MR. HAZZARD: No. CHAIRPERSON RAWSON: County can call his next witness. MR. BRYANT: Thank you. At this -- CHAIRPERSON RAWSON: Just a second. Just so the attorneys know that the board is allowed to ask questions as well, and I apologize to the board members that I didn't ask you if you have any questions of Mr. Ewing. Mr. Allen does. MR. ALLEN: Mr. Ewing, I've got a simple question. I'm trying to find out -- they called that the new guardhouse, tract R. How far is that located from the permit drawings? Do we know what that distance would be? THE WITNESS: I couldn't tell you that. Page 23 July 25, 1996 MR. ALLEN: Okay. CHAIRPERSON RAWSON: Are there any other questions by board members for Mr. Ewing? Based on Mr. Allen's question, do either attorney have anything else you want to ask Mr. Ewing? MR. BRYANT: Nothing from the county. CHAIRPERSON RAWSON: Thank you, Mr. Ewing. MR. BRYANT: May he be excused, Madam Chairman? CHAIRPERSON RAWSON: Do you intend to call him? MR. HAZZARD: No. CHAIRPERSON RAWSON: Yes. Thank you, Mr. Ewing. MR. BRYANT: Thank you. Thank you, Mr. Ewing. CHAIRPERSON RAWSON: You may call your next witness. MR. BRYANT: Thank you, Madam Chairman. If he could be sworn, Madam Chairman. CHAIRPERSON RAWSON: Sir, would you state your name for the record, and then we'll have the court reporter swear you in. MR. MCDANIEL: I'm Don McDaniel, M-c-D-a-n-i-e-l. THEREUPON, DON MCDANIEL, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. BRYANT: Q. Would you state your name, please, sir. A. I'm Don McDaniel. Q. How are you employed, sir? A. By Collier County. Q. And what is your area of emplOYment? What do you do? A. I supervise a computer graphics section in the development services division. Q. And as part of that responsibility, do you at times or are you at times called on to create drawings whether it be of legal descriptions or of buildings, things like that? A. That's correct. We maintain the county zoning maps. Q. And how long have you been doing this, Mr. McDaniel? A. I started with the county in 1969, and that has been either my duty or supervising that duty off and on since that time. Q. And as part of your responsibilities, do you maintain the control over the plat books that the county has a copy of in their official records? Do you have the plat books that -- such as the ones that show the Lely Barefoot Beach unit 1 in your department? A. We have copies of those in my department, yes. Q. And are they maintained in the normal scope of the county's records, and are they part of the official county records that you main -- or you have access to? A. We have copies of those official records, yes. MR. BRYANT: At this time, Madam Chairman, I would like a multi-page -- three-page document titled Lely Barefoot Beach ~nit 1 from plat book 12, page 34 marked and admitted into evidence as composite Exhibit 5, I believe, for the county. CHAIRPERSON RAWSON: Any objection? MR. HAZZARD: None. CHAIRPERSON RAWSON: it as county's exhibit Let's have the court reporter mark composite Exhibit 5, and it will be Page 24 July 25, 1996 introduced in evidence as the county composite Exhibit 5. MR. BRYANT: Thank you, Madam Chairman. (Plaintiff's Exhibit No.5 was marked for identification.) BY MR. BRYANT: Q. I ask you, Mr. McDaniel, to look at what has been marked as county's Exhibit 5, which is styled Lely Barefoot Beach unit 1, and ask you are you familiar with that, sir. A. Yes. Q. In fact, at my request did you make a copy of that from the official records of Collier County? A. Yes. Q. And if you would speak into the microphone. A. I'm sorry. Q. Did you? A. Yes. Q. And does it show tract R on that plat, sir? A. Yes. Q. And where is tract R, Mr. McDaniel? A. That's the roadway system in Lely. Q. Okay. If you would, Mr. McDaniel -- MR. BRYANT: I'd like to have this marked as county's 6 and admitted into evidence without objection. MR. HAZZARD: Okay. CHAIRPERSON RAWSON: No objection? In that case, we will not only have it marked as -- the drawing as Exhibit No. 6 for the county, but we'll have it introduced into evidence and the court reporter can go ahead and mark it now. (Plaintiff's Exhibit No.6 was marked for identification.) BY MR. BRYANT: Q. Based upon my request, Mr. McDaniel, did you generate that graphic of the Lely Barefoot Beach PUD and the parcels around it? A. Yes, I did. Q. And if you would pick up the mike, it would be easier. And did you also read the legal description for the Lely Barefoot Beach PUD? A. Yes, I did. Q. And looking at the legal description that is in Ordinance 77-48 by Lely Estates, Inc., with Collier County, I ask you is that a copy of the legal description that you utilized to draw that graphic? A. Yes, it is. Q. And if you would look at the legal description also in Ordinance 85-83 -- MR. HAZZARD: Madam Chairman, we'll stipulate that they're the same if that's where this is going. MR. BRYANT: Okay. That's fine. And did you determine that a certain area is lessed out Lely PUD, Mr. McDaniel? Yes, I did. And if you would for the benefit of the board just point area that you found was lessed out of the Lely Barefoot Beach Q. of the A. Q. out the PUD. Page 25 July 25, 1996 A. It starts here at the section -- at the section line, comes east along this section line -- or west along the section line, and comes out to the Gulf, comes down to this extension of Anguilla, goes over, follows up, takes the north line of Anguilla, comes -- I'm sorry. It takes a straight line out to 50 feet off the shoreline and then follows a line along the shoreline back to the point of beginning. Q. And based upon your training and experience in working with legal descriptions, is that area lessed out and not part of the Lely PUD? A. Yes. MR. BRYANT: No further questions, Madam Chairman. CHAIRPERSON RAWSON: Cross-examination? MR. HAZZARD: I have no questions, your Honor -- Madam Chairman. CHAIRPERSON RAWSON: Thank you, Mr. McDaniel. MR. BRYANT: May he be excused also, Madam Chairman? CHAIRPERSON RAWSON: If nobody intends to call him further, certainly he may. MR. BRYANT: Thank you. CHAIRPERSON RAWSON: Thank you. MR. BRYANT: Mr. Mazzone. CHAIRPERSON RAWSON: Mr. Mazzone, would you state your name into the microphone, and then we will have the court reporter swear you in. MR. MAZZONE: For the record my name is Dennis Mazzone. I'm a code enforcement investigator for Collier County. THEREUPON, DENNIS MAZZONE, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. BRYANT: Q. will you state your name, please, sir. A. My name's Dennis Mazzone. Q. And how are you employed, sir? A. I'm employed as a code enforcement investigator by Collier County. Q. And if you would -- you tend to trail off sometimes when you're talking, Mr. Mazzone. If you'll speak right in the microphone, I think it will help the board hear you better. As part of your responsibility, are you sent out to investigate alleged violations of the land development code or ordinances of Collier County? A. Yes, sir. Q. And if you would tell the board what a code investigator is for Collier County. What do you do? A. We respond to citizen complaints and any other complaints that are generated within the office of code enforcement, and we go into the field to confirm whether or not these complaints are warranted or not and very often have to research the county records to confirm the -- the validity to a complaint. Q. And as part of your responsibilities, were you assigned an alleged violation by the Lely Barefoot Beach Property Owners Association and the Lely Barefoot Beach Master Association in Collier Page 26 July 25, 1996 County? A. Yes, sir. Q. What were your instructions, and what did you do in reference to that, initially, Mr. Mazzone? A. Initially, my instructions were to research the PUD materials that were in-house in our records department, and to just see what I could find as far as my findings for whether or not this guardhouse was placed in the legal -- in the legal position legal parcel of property. Q. And what did you do based upon that instruction? What did you actually -- how did you investigate it? A. I pulled the PUD documents out of the records and went through them, reading 77-48 -- PUD 77-48, PUD 88-85, looking at the permit and what information was on that permit. I then discussed my findings with my director and supervisor. Q. What permit did you specifically review, and do you have a copy of that with you? A. I do have a copy of it, and it's permit 88-734. Q. And what is that permit for? A. The permit was for the construction of a guardhouse structure. Q. If I might see that, please. MR. BRYANT: Madam Chairman, at this time I would like a 14-page composite exhibit number -- permit No. 8800734 bearing the left-hand date of March the 3rd, 1988, marked and admitted into evidence as the county's exhibit or composite Exhibit 7, I believe. CHAIRPERSON RAWSON: Seven, it is. MR. HAZZARD: Looks fine to me, Madam Chairman. CHAIRPERSON RAWSON: At this time we will have the county's composite Exhibit No.7, which is a 14-page document which is permit No. 88-734 marked and also introduced into evidence. (Plaintiff's Exhibit No.7 was marked for identification.) BY MR. BRYANT: Q. As part of your investigation for that permit 88-734, did you also determine the ownership of the property -- of the real property, the land where that permit structure was supposed to go? A. Yes, sir. Q. And how did you do that, sir? A. By pulling the deed for the property in question, reading the location that was spelled out in the PUD which was -- and then looking at the permit and seeing -- and physically going out to the site and seeing where the guardhouse was built versus what the permit said and then pulling the deed for the property where the second guardhouse was constructed. Q. When you say the second guardhouse, are you referring to what you've heard commonly referred this morning to as the new guardhouse? A. Yes, sir, the new guardhouse. Q. The one closest to Bonita Beach Road; is that correct? A. That's correct. MR. BRYANT: Madam Chairman, at this time I would like warranty deed recorded in O.R. book 13 -- 001308, I believe it is, Page 27 July 25, 1996 page 000231 admitted into evidence without objection as county's 8, I believe. CHAIRPERSON RAWSON: Any objections? MR. HAZZARD: None. CHAIRPERSON RAWSON: At this time we will admit the warranty deed as county's Exhibit No.8, and I'll ask the court reporter to mark that. (Plaintiff's Exhibit No.8 was marked for identification. ) BY MR. BRYANT: Q. When you reviewed the permit, Mr. Mazzone, where did it list the description that this new structure was going to be placed? A. The job address was noted as No.1, Lely Beach Road. Q. And do you know where and what is at No.1, Lely Beach Road? A. Yes, sir. Q. What is there, Mr. Mazzone? A. There is a two-story structure that was initially built as, I believe, a guardhouse facility, and it housed, I believe, utilities, and it probably houses -- I think it housed a real estate firm operation at one time. Q. Did you physically go out and look at that two-story building that's at No.1, Lely Beach Road? A. Yes, sir, I did. Q. Could you point that out to the members of the Code Enforcement Board from, I believe, probably Exhibit 1 would be the easiest one for it over on the right-hand side. A. Yes. Q. And if you would hold it up so that it's easier for the board member on the end to see. A. That would be this structure here. Q. And did the permit say what was going to be done at One Lely Beach Road? A. Yes, sir. Q. What did it say was going to be constructed or done at that site? A. It said that per plan there would be a guardhouse constructed with existing electric. Q. And did it say anything about an addition on that permit application as opposed to new construction? A. Yes, sir. Well, it was circled as an addition. Q. And from your experience as a code investigator, what is an addition to a building or a structure, Mr. Mazzone? A. It would be an extension or an improvement to an existing building or structure. Q. SO if the builder had gone out and added onto the two-story building on tract A, would that be an addition in your opinion as a code investigator? A. Yes, sir. Q. But when you went out to Lely Beach Boulevard, what did you actually physically find? A. Well, I didn't find an addition to the existing structure on tract A, but I did find another guardhouse in the roadway, which is referred to as tract R, further north of the Page 28 July 25, 1996 original guardhouse. Q. And would you consider that a new independent building and not an addition to the two-story structure in tract A? A. Yes, sir. Q. And I believe you said that the electrical was to be existing? A. The permit called for existing electric. Q. From your experience as a code investigator, what does that mean, Mr. Mazzone? A. That the electric would have been previously installed and previously inspected and would have met code. Q. Based upon those findings what, if anything, did you do then? A. I brought that data back to the office and further reviewed the location of the guardhouse. Q. And then did you make any determination as to the structure that we've referred to as the new guardhouse whether it was properly sited or was in the proper place? A. Did you just ask did I make a decision? Q. Yes, sir. Did you make a determination? A. I made a determination. Yes, sir, I did. Q. What did you determine based upon your experience as a code investigator? A. That, indeed, the second guardhouse or the one in question today is not located in tract A. Q. And did you determine what tract R was? A. Yes, sir. I determined that tract R was the roadway that runs north-south through the Lely Barefoot Beach PUD. Q. And did you determine where tract A was? A. Yes, sir. I determined that tract A was a parcel of land on the west side of tract R intended to house a guardhouse as prescribed in the PUD. Q. If you would tell the board why you believe that the guardhouse should be in tract A and not tract R. What did you look at in the PUD? And please tell the board which PUD you referred to. A. In PUD 77-40 -- 77-48 the -- the development criteria which is in Section F, page 4, states that all development shall take place as prescribed in the PUD and that we should -- there should be no variation from the master plan of the PUD. Q. Would you please tell the board why you looked -- and what is PUD Ordinance 77 -- did you say 48? A. Yes, sir. Q. What is that? A. An ordinance is an amendment to the zoning regulations, and that's what this PUD is. Q. What is that PUD you are referring to? What is it styled? A. It's styled the Lely Barefoot Beach Development the PUD. Q. And did that 77-48 amend any other PUD that you know of? A. No, sir, it did not. Q. And why did you refer to PUD 77-19 on your notice of violation, Mr. Mazzone? A. 77-19 with the 6 in parentheses was the number assigned Page 29 July 25, 1996 the PUD that was -- I used as a reference point to research the document that was adopted as the ordinance, which became 77-48. Q. SO 77-48 that you are referring to now to the board that you looked at for where a guardhouse can be is the same, if you would, as 77-19? A. That's correct. Q. 77-19 was like a control number that was assigned to it before the ordinance was actually adopted as 77-48? A. This is my understanding. Q. And did you determine from 77-48 where the guardhouse could be located, and if you would refer that to the board and read to them that language and what section you're referring to, sir. A. In Section F of 77-48, page 19, a development sequence plan, phase development, development sequence in schedule, the overall project has been divided into the following phases. And it makes reference to blocks A through J, the south access road in the utilities site, commonly -- community recreation center, and, number one, the guardhouse complex. . Q. And where does the ordinance for the Lely Barefoot Beach PUD provide a guardhouse to be, and if you would read that language from the PUD. A. Please repeat that. Q. Where does that ordinance say a guardhouse can go, Mr. Mazzone? A. In Section F, page 14, the gatehouse complex site, this may be utilized for an entrance -- entry gate facility within security against entry by unauthorized persons or vehicles will be provided the gatehouse complex may be contained -- may contain dwelling units for resident employees of the project. Additionally, the gatehouse complex may incorporate administrative, maintenance, and utility activities, and storage facilities for the project as a whole. Q. And what tract is that provided for in? A. They're referring to tract A -- I'm sorry. Yes, tract A. Q. Is that the tract that you referred to earlier where the two-story building is? A. That's correct. Q. And is there any other provision in the PUD that allows for any type of guardhouse or facility like a guardhouse? A. No, sir. Q. Is there a provision in a landscaped area that you also can extend the guardhouse into if you wanted to or add those type things in tract -- I believe it's tract C or the landscaped entrance? Did you review that? A. There is a Section F, page 14, that I mentioned, and that's what I reviewed. Q. Okay. And is it your opinion that the guardhouse should be located in tract A based upon that PUD? A. That's correct. Q. Did you look at any of the other amending PUDs of the Lely Barefoot Beach PUD? A. Yes, I did. Q. Would you please tell the board which ones you actually referred to and which ones you reviewed? Page 30 July 25, 1996 A. and 10. Q. Did that ordinance amend 77-48? A. Yes, it did. Q. And did it amend the Lely Barefoot Beach PUD? A. Yes, it did. Q. And what, if anything, did it provide for as an allowed gatehouse or gatehouse complex? A. On -- in Section 4, on page -- I'm sorry. 4.2-A, page 15, it mentions the uses permitted and a tract A and that an entry gate facility would be tract. Q. And did this appear to be consistent with the other -- with the earlier PUD for Lely that you reviewed? A. Yes, it did. Q. Did that PUD amending ordinance provide for or allow any guardhouse in tract R or the roadway system? A. No, sir. Q. Did you review any other PUD amending ordinances for Lely Barefoot Beach? A. No, I did not. Q. SO after you reviewed these two ordinances, physically went to the scene and saw where the new guardhouse was, what did you do then, Mr. Mazzone? A. Well, I gave all my information that I -- that I found to my supervisors. Q. Did you subsequently prepare a notice of ordinance violation and order to correct violation? A. Yes, I did. Q. Why did you do that, Mr. Mazzone? A. Well, the first step was that we served we posted what we call a notice of violation and formal written notice that there is a problem at Q. Did you do that? A. Yes, I did, sir. And then following that we prepared a notice of violation in stipulation form. I did that upon request of my superVlsors. Q. The notice of the red tag you placed upon the building, did you specifically state on that document what was the violation? A. Yes, I did. Q. What, if anything, did you tell the Lely Barefoot Beach Property Owners Association and the Master Association was the violation? A. It would be the same as' what was stated on the -- the notice of violation, that it was in violation of PUD requirements and regulations. Q. Because it was built in the wrong place? A. That's correct. Q. Did you tell them anything else was wrong about the guardhouse being there? Did you mention anything about traffic control? A. Q. Property I reviewed Ordinance 85-83, Section 2.7, page -- pages 9 Section makes reference to located within that -- or was that red tag. It's just a the location. Yes. I did. What, if anything, did you tell the Lely Barefoot Beach Owners and Master Associations that you believed was a Page 31 July 25, 1996 violation as far as traffic control goes or the guardhouse? A. That the guardhouse was placed in the roadway which impeded traffic to the park lands just south of the development. Q. What made you determine that this building was impeding traffic, and what allowed or what pointed you to charging that violation? A. We've received citizen complaints regarding that very subject, and also I made at least four visits to the guardhouse myself where I did see traffic stopped at the facility, the guardhouse facility in question, and had photographed these happenings. Q. Did you also review the use access agreement dated November the 10th, 1987? A. Yes, I did. Q. I'd ask you to look at that and see if this is the document that you reviewed. A. Yes, it is. MR. BRYANT: Without objection, Madam Chairman, I would ask this be marked and admitted into evidence as county's, I believe CHAIRPERSON RAWSON: Would you tell the board again what that exhibit is? MR. BRYANT: This is the use access agreement between Lely Development Corporation and the Board of County Commissioners of Collier County Florida dated November the 10th, 1987, and is executed by Max Haas, chairman, Board of County Commissioners and Richard Schlag Lely Development Corporation. MR. KOWALSKI: I believe that's Exhibit 9 rather than 8. CHAIRPERSON RAWSON: That's correct. It's county's Exhibit No.9, and how many pages is it? MR. BRYANT: Eight pages, Madam Chairman. CHAIRPERSON RAWSON: Thank you. And I note there's no objection, so at this time I would ask the court reporter to mark, and we will introduce into evidence as county's composite Exhibit 9 an eight-page document dated November 10, 1987, and titled use access agreement. (Plaintiff's Exhibit No.9 was marked for identification. ) BY MR. BRYANT: Q. When you reviewed that use access agreement, did you read the entire document, Mr. Mazzone? A. Yes, I did. Q. Did you see paragraph two on that document? A. Yes, I did. Q. If you would, for the benefit of the board, what is the statement in paragraph two in that use access agreement which is county's Exhibit 9 in evidence, Mr. Mazzone? A. Paragraph two reads: "Seller guarantees to board permit unrestricted legal access to property including the right to use any road now and hereafter constructed within said easement." Q. From your reading that and your observations of traffic being stopped at the guardhouse, did you believe that that was a violation of that use access agreement? A. Yes, I did. Page 32 July 25, 1996 Q. A. Why is that? Because traffic was being impeded. It was not free access. Q. Do you believe that was not unrestricted access? A. Yes, I believe that was not unrestricted access. Q. Did you ever receive any complaints from individuals about being stopped at the guardhouse or having their access to the roadway system or the park impeded? A. Yes, I have. Q. If you would please share with the board those comments and what you -- what information you received about that. A. I've spoken to people who tried to get into the park from Bonita Beach Road, and they were stopped at the gate, and they've complained of the -- their delay to the park. Q. Based upon your review of the use access agreement and those complaints, did that further lead you to believe as a code enforcement officer that the Lely Barefoot Beach Property Owners and Master Associations were in violation of Collier County agreements and ordinances? A. Yes, sir. Q. What other documents did you review, Mr. Mazzone, as part of your investigation? A. There's also an easement agreement that I reviewed. Q. And what, if anything, did you determine from the easement agreement? A. The easement agreement dated the 1st of August '85, also makes mention of access not being stopped. Q. Is that the one dated August the 1st, 1985, recorded O.R. book 1291, page 1232? A. That's correct. Q. Does that appear to be a copy of the one you're referring to? A. Yes, sir. MR. HAZZARD: Excuse me. What was the recording of that? MR. BRYANT: 1291, 1232. MR. ANDREWS: I'd like to make a motion we might want to take a five-, ten-minute break. MR. BRYANT: I would submit to the board that we might want to do it now. It's going to go on for a while with this particular witness. If the board member would like a break at this time, I have no objection to it. CHAIRPERSON RAWSON: I apologize to the court reporter. Did you get the paper in there? I have a had a couple of requests that we take a break, and I hate to do that in the middle of a witness, and I was going to wait until we at least finished with the direct. But in view of the fact that you tell me it's going to take a while with this witness, why don't we take about a ten-minute break, and then we'll convene back here about five minutes till. MR. BRYANT: Thank you. CHAIRPERSON RAWSON: Board will be in break. (A short break was held.) CHAIRPERSON RAWSON: County Code Enforcement Board will come back to order. We were in the middle of a witness. Mr. Bryant, Page 33 July 25, 1996 you may continue. MR. BRYANT: Thank you, Madam Chairman. May it please the board. BY MR. BRYANT: Q. I believe we were talking about the easement that was recorded at O.R. book 1291, page 1232 and dated the first day of August, 1985, and I think -- I think you said you reviewed that, didn't you, Mr. Mazzone? A. Yes, I did. MR. BRYANT: Without objection I would ask this be marked as county's 10 and move it into evidence, Madam Chairman. CHAIRPERSON RAWSON: This is the easement agreement? MR. BRYANT: Two pages, Madam Chairman. CHAIRPERSON RAWSON: Two pages. Any objection? MR. HAZZARD: None. CHAIRPERSON RAWSON: At this time I'd ask the court reporter to mark and also we will introduce county's Exhibit No. 10, a two-page easement agreement dated August 1, 1985. (Plaintiff's Exhibit No. 10 was marked for identification.) BY MR. BRYANT: Q. What other documents, if any, did you review, Mr. Mazzone? A. I reviewed the land development code sections that addressed planning and development. Q. And why did you do that, Mr. Mazzone? A. Because the guardhouse in question is is located in such a manner in that the construction -- the permit claims that it's located within a certain PUD. Q. And are PUDs regulated and controlled by the Land Development Code for Collier County? A. The PUD is an amendment to the zoning ordinance, and the PUD becomes the -- that which dictates what kind of construction and conduct will be performed within the area that's covered by the PUD. Q. Would you agree with me that the Land Development Code is kind of like the overall bible for land development within Collier County? A. Yes, it is. Q. And then a PUD is carved, if you would, out of that Land Development Code and must be consistent with it? A. Yes, it is. Q. And that is the reason you reviewed the Land Development Code, I assume? A. This is correct. Q. Did you determine whether or not from your review of the Land Development Code and all the other documents that you referred to that there were violations or alleged violations by the structure known as the new guardhouse and where it was situated? A. Yes, I did. Q. And, specifically, did you prepare a notice of ordinance violation and order to correct violation that set out those particular sections you believed that was in violation by the Lely Barefoot Beach Property Owners Association? A. Yes, I did. Page 34 July 25, 1996 Q. Did you reduce that to a written document, and did you subsequently serve a notice of ordinance violation and order to correct violation? A. Yes, on both counts. Q. Did you also send written notifications of the hearing to be held for the alleged violations or did your department do that? Let me show what's known as A. It would have been sent by our coordinator. Q. Let me show what's titled notice of hearing and shows two certified mail notices signed for and ask you if you recognize that. A. Yes, I do. Q. What is that, Mr. Mazzone? A. This notice is mailed out by the coordinator of the -- between our office and the Code Enforcement Board. Q. And is that to give notification to the alleged violator of the hearing? A. Yes, it is. MR. BRYANT: This is a 13-page document, Madam Chairman, styled notice of hearing with two stapled on certified mail with return receipts showing they've been served. I would, without objection, move this into evidence as, I believe, county's 11. MR. HAZZARD: No objection. CHAIRPERSON RAWSON: At this time I will ask the court reporter to mark and we will introduce into evidence a 13-page document as county's composite Exhibit 11, which is a notice of hearing with a number of attached pages. MR. BRYANT: Thank you, Madam Chairman. (Plaintiff's Exhibit No. 11 was marked for identification.) BY MR. BRYANT: Q. I believe I asked you earlier did you subsequent to your investigation serve a notice of violation -- ordinance violation and order to correct violation in reference to this matter? A. Yes, I did. Q. Did you serve one of those on a Tamela Eady Wiseman as a registered agent for Lely Barefoot Beach Property Owners Association? A. Yes, I did. Q. And did you serve a subsequent one on Glenn Carroll as the registered agent of Lely Barefoot Beach Master Association? A. That's correct. Q. And do you have those with you, Mr. Mazzone? A. Yes, sir. MR. BRYANT: I would request at this time, Madam Chairman, that the notice of violation to Tamela Eady Wiseman of three pages be marked and admitted into evidence, without objection, as county's, I believe, 12 and the notice of ordinance violation to Glenn Carroll, one page, be admitted into evidence as, I believe, county's 13. MR. HAZZARD: Madam Chairman, it's not clear to me why 12 is three pages long and 13 is one page long, but -- CHAIRPERSON RAWSON: Is there some reason for the difference in the number of pages, Mr. Bryant? MR. BRYANT: I can take the witness through that, Madam Page 35 July 25, 1996 Chairman. I would submit to the board that that's a matter -- if there is an issue on that, it's for cross-examination. MR. HAZZARD: Note for the record that 13 appears to be incomplete and otherwise fine. CHAIRPERSON RAWSON: At this time then the notice of violation to Tamela Wiseman will be marked and introduced into evidence as county's Exhibit 12, and the notice of violation to Glenn Carroll will be marked and introduced as Exhibit 13. And the board will duly note that the respondent has characterized Exhibit 13 as incomplete. (Plaintiff's Exhibit Nos. 12 and 13 were marked for identification.) BY MR. BRYANT: Q. When you served Miss Wiseman, did you give this notice of ordinance violation and order to correct violation directly to her, Mr. Mazzone? A. Yes, I did. Q. And did she take it and review it or leave your presence and take it from you? A. To the best of my memory I believe she did leave at one point. Q. Did she subsequently return and give to you the notice of violation, which is county's 12, showing where she had signed it? A. That's correct. Q. And did she ask you to explain any of the notice of ordinance violation to her? A. Not to my -- not to my best recollection. Q. Did you in any way coerce or attempt to force her or cajole her into signing this? A. In no way, sir. Q. Did you ever tell her what signing this meant and try to provide her advice? A. Not to my memory. Normally when I serve these papers be it to -- no matter who it is or whatever the case if there are any questions I ask if there are any questions. I try to be of assistance. Q. You remember giving any assistance to Miss Wiseman before she executed this? A. No, I don't, sir. Q. And she provided it back to you signed recognizing that she had received it and in paragraph 3 admitting the violation. Did you note that? A. She provided it back to me signed, yes, sir. Q. Mr. Carroll. Did you in any way coerce, cajole, or try to get him to sign county's No. 13, which is the notice of ordinance violation? A. No, sir. They were served in the very same manner. Q. And did Mr. Carroll ask you for any type of advice, if you remember? A. Yes, sir. Mr. Carroll had just -- just come out of a very lengthy meeting. I had waited for him. I, in fact, left the office and had to return because it was an approximate hour. Then I had asked for Mr. Carroll's signature on this advising him that it was information that was of value to him letting him know that there would Page 36 July 25, 1996 be this meeting today. Q. And did he ask you for any type of advice on whether or not he should sign it, if you remember? A. No, sir. Q. And did he execute it? A. Yes, sir. Q. Now, you've heard some argument about one document containing three pages and one one page. Would you please tell the board why that is, Mr. Mazzone? A. The three-page document that was served to Tamela Wiseman had -- has attached to it the exhibits. The one page served to Glenn Carroll does not have the very same exhibits attached today. Mr. Carroll was provided with those exhibits, though. They're the very same exhibits that are on Miss Wiseman's. Q. How did you provide Mr. Carroll the exhibits? A. I -- I believe that they were paper clipped to the N.O.V. in stip., to his copy. Q. And when you provided Miss Wiseman her three-page copy, did she ever tell you that she did not represent any of these parties, or did she accept the document from you as if she represented both the Lely Barefoot Beach Property Owners Association and the Master Association? A. She accepted them in a very friendly way and was very professional and didn't indicate that she wasn't accepting them for any party. Q. But she signed them and gave it back to you? A. That's correct. Q. Now, you alleged certain violations in this particular notice of ordinance violation, both the one you served Miss Wiseman and Mr. Carroll. You specifically alleged that -- that Collier County zoning district PUD 77-19(6) -- and I assume your earlier comments about this was the tracking number, and that's the reason you put that in? A. That's correct. Q. Then you said Lely Barefoot Beach, unit 1, tract R of Collier County record additional guardhouse facility. Why did you put that in, Mr. Mazzone? A. Because that is the precise location of the guardhouse in question. Q. The one that's closest to Bonita Beach Road which we've referred to as the new one? A. This is correct. Q. Then you set out certain ordinance violations you believed that this particular building was in violation of based upon Collier County Ordinance 91-102. What is that ordinance, Mr. Mazzone? A. Ordinance 91-102 amended is our Land Development Code. Q. Is that the code you referred to earlier that you researched prior to alleging these violations? A. That's correct. Q. You specifically claim that the building is in violation of 91-102 Section 2.1.5 -- 15. What is that section, Mr. Mazzone, and why did you allege that? A. That section makes reference to prohibited uses and structures in zoning districts. Those would be uses that are not Page 37 July 25, 1996 allowed or permitted as a permitted use, conditional use, or use by a reasonable implication. Q. Now, do you know or -- strike that. Why did you allege that violation of the structure, Mr. Mazzone? A. Because the use of the roadway the -- because the permit -- I'm sorry. The PUD had specifically indicated where the guardhouse was to be located. The PUD documentation could not be changed unless it went before the Board of County Commissioners. Q. And the PUD documentation said that it had to be placed in what section of the PUD? A. In tract A. Q. I'd ask you to look at page 20 of Ordinance 85-83, please. And you would agree with me that that section which deals with tract C landscaped entrance drive strip -- do you see that under Section 6? A. Yes, sir. Q. You would agree with me that under principal uses in Section C it says portions of or facilities related to the gatehouse complex that that could be used -- that section -- Section C could be used like Section A for the gatehouse complex? A. Please repeat that. Q. Under 6.2 uses permitted A. Yes, sir. Q. -- Section 2 portions of or facilities related to the gatehouse complex. You would agree with me that also in tract C, like tract A, some use of that property could be used for a gatehouse; isn't that correct, by it being provided in the PUD? A. Yes, sir. Q. But nowhere did you find in any of the PUDs that a gatehouse was allowed in tract R; is that correct? A. That's correct. Q. Now, do you know what the zoning designation -- and if you need to use the graphic behind you, which is county's Exhibit 6, what is the zoning designation where the guardhouse is? A. It's where I'm pointing. It is A.S.T. Q. And what does A.S.T. mean, if you know, Mr. Mazzone? A. Agricultural special treatment. Q. What is a special treatment designation for the benefit of the board, Mr. Mazzone? A. It would be treatment that -- it would be lands that would be treated in such a way that the development wouldn't normally -- not take place on those properties. Q. Is that consistent with your alleging the violation of 2.1.15 in your notice of violation? A. That's one of them. Q. And did you determine where the PUD for the Lely Barefoot Beach PUD -- D actually was? Did you look at the geographical area where the PUD was? A. Yes, I did. Q. And did you determine from your investigation whether or not the Lely Barefoot Beach guardhouse, the new guardhouse, was in that PUD? A. I did make my determination, yes. Q. What was your determination? Page 38 July 25, 1996 A. That it was outside the PUD. Q. Did you determine it was in the A.S.T. zoning designation? A. Yes, I did. Q. Would that from your experience as a code enforcement officer be a violation and be one of the ones you alleged in 2.1.15? A. Yes, sir, that coupled with the unified control. Q. All right. If you would point me to that allegation and explain that to the board. A. Section 2.2.20.2.3 makes reference to unified control in that all lands included for the purposes of the development of the PUD must be owned and under the control of the applicant. Q. And did you determine that by the guardhouse being in the A.S.T. area outside the PUD that that was a violation of that section? A. That's correct. Q. Did you also look at 2.20.2.1? A. Yes, I did. Q. And what violation did you believe occurred there? A. That particular section addresses relationship of planned unit developments to the growth management plan in that all development regulations in all county ordinances shall apply unless specifically changed or amended by a PUD or modified by an approved PUD. Q. And why did you believe that where the guardhouse was located in the A.S.T. area outside the PUD violated that section? A. The PUD was specific to the tract A location for the guardhouse. There was no -- there was nothing mentioned in the PUD, which was the approved master plan, for housing the guardhouse anywhere else. Q. SO is it your opinion as a code enforcement officer that by being outside the PUD and in the A.S.T., it was in violation of that section also? A. That's correct. Q. You would agree with me, wouldn't you, Mr. Mazzone, that tract A is within the Lely Barefoot Beach PUD? A. Yes, I would. Q. And would you agree with me that tract C, the landscaped entrance that we just talked about, is within the Lely Barefoot Beach PUD? A. Yes, I would. Q. And the guardhouse -- the new guardhouse sits in neither of those tracts; is that correct? A. That's correct. Q. If you would -- looking at Section 2.2.20.2.3, what, if anything, did you believe was a violation there? A. Here, again, that unified control section makes reference to ownership and control of those properties that are to be developed. Q. And is that part of paragraph one and paragraph two? A. Yes, it is, sir. Q. And is that what you were talking about earlier -- about when you were talking about just 2.2.20? You were talking about the unified or uniform control of the development? Page 39 July 25, 1996 A. Unified control is 2.2.20.2.3. Q. SO you just left off the 2. -- .2.3 when you were talking about it earlier? A. That's correct, sir. Q. SO 2.2.20.2.3 is the unified control? A. That's correct. Q. And you believe that by the guardhouse being where it is in the A.S.T. area outside the PUD, it's in violation of that? A. Yes, sir. Q. Okay. What is 2.2.20.3.8 paragraphs one and two, Mr. Mazzone, and why do you believe that's a violation? A. That makes -- 2.2.20.3.8 makes reference to the common open spaces and common facilities in that the PUD shall provide for and establish an organization for ownership and maintenance of these common open spaces and common facilities and that they must meet all the obligations of the PUD. Q. And did you believe that because the new guardhouse is outside the PUD and in the A.S.T. zoning designation, it violated that? A. Yes, sir. Q. As to Section 2.7.3.3 why did you allege that violation, Mr. Mazzone? A. 2.7.3.3 makes reference to the effects of the planned unit development in that a planned unit development is actually an amendment to the zoning ordinance. It becomes the development standard for the -- for the development of that PUD, and it must follow the PUD master plan. Q. And did you believe because the new guardhouse was outside the PUD and in the A.S.T. zoning, it violated that section? A. Yes, sir. Q. And is that because that it did not place the guardhouse in either tract A or tract C and, in fact, placed a guardhouse outside the PUD? A. That's correct. Q. You also alleged a violation of impeding traffic. Why did you allege that, Mr. Mazzone? A. As referenced in the PUD -- in PUD 85-83 Section 2.7, which is pages 9 and 10, final site development plan makes reference under 2. -- 2.7 that Exhibit A constitutes both the PUD master plan of development and the Barefoot Beach subdivision master plan. As you continue onto page 10, the PUD master plan indicates that the meandering north-south access road extends from Bonita Beach Road to the south boundary of the project. Vehicular access to the state-owned lands south of the Barefoot Beach project is to occur via this north-south access road. No modification may be made to this road as planned which would interfere with access to the state-owned lands to the south. Q. And was it your opinion asa code enforcement officer that the construction of this new building violated that section of the PUD? A. Yes, sir. Q. Did you also see in the PUD documents that any development of a guardhouse must be approved by the community development director? Page 40 July 25, 1996 A. Yes, sir. Q. And in any in all of your review of the documents you reviewed, did you ever see where the community development director ever approved this guardhouse? A. No, sir. Q. In fact, your review of the entire files of Collier County don't show any approval by the community development director; is that correct? A. That's correct. Q. Would it be your opinion as a code enforcement officer this is a further violation of the PUD because it did not acquire the approval of the community development director prior to this construction? A. That is correct. Q. I ask you to look at a board that has six photographs on it and ask you if you made those photographs. A. Yes, I believe I did. Q. Do the photographs truly and accurately depict the area as photographed when you made them? A. Yes, sir. Q. Did you modify, change, or in any way tamper with those photographs? A. No, sir. to measurements. Q. Or as to dates? A. Yes, sir. Q. You didn't try to change or doctor up the photos, did you? A. I made some -- some remarks with my ink pen as No, sir. MR. BRYANT: Without objection, Madam Chairman, I would move to admit this into evidence as county's -- CHAIRPERSON RAWSON: Fourteen I think it is. No objections? MR. HAZZARD: None. CHAIRPERSON RAWSON: At this time I'll ask the court reporter to mark and we will introduce into evidence the county's Exhibit 14, which is a board with some photographs. (Plaintiff's Exhibit No. 14 was marked for identification.) BY MR. BRYANT: Q. Please tell the board what these photographs show, Mr. Mazzone, and why did you make them? A. The -- the photographs primarily show the guardhouse and where it's situated and that there are two roads running on either side of the guardhouse. It also shows that there are vehicles stopped at the guardhouse at least on one occasion when I took a photograph. Another investigator or myself had taken a measurement or a couple measurements in the road, and it shows a 24-foot wide road that runs between the old guardhouse and the median strip. It also -- we also took a measurement from the old or original guardhouse, the two-story structure, to the guardhouse in question and that was an approximate 200-and-some-odd feet. Q. Mr. Mazzone, the photograph that is in the middle of the board on the right-hand side, the smaller photograph, it's dated Page 41 July 25, 1996 10-19-94. The structure that's on the left side of that as you look it, what is that building, Mr. Mazzone? A. That would be the original guardhouse structure. Q. And is that the one that, if you look at county's Exhibit 1 and tract A, is titled the two-story block structure? A. That's correct. Q. Did you ever see the arms that are attached to the gatehouse on one side and then stands on the right-hand side that are used to stop traffic? Did you ever see those down anytime you were out there Mr. Mazzone? A. Yes, sir. Q. I'm sorry? A. Yes, sir. Q. Do you remember how many times you saw those gates down? A. Pretty much every time I was out there. Q. And do you remember if both were down or only one was down, and if only one, which one? A. I believe only one was down, and that would have been the one on the beach side of the road. Q. Fartherest (sic) from the gatehouse; is that correct? A. That's correct. Q. And do you know why from your investigation -- take your seat if you'd like to. You can set the photos up on the easel. Did you ever determine why there were two gates and why one might be up and one might be down? A. I never made that determination. Q. But it was your observation that, generally, the gate furtherest (sic) from the guardhouse was the one down when you were out there? A. That's correct. Q. And was it your opinion that by these gates being there that traffic to the park was being impeded? A. Correct. Q. What's at the very end of Lely Barefoot Beach, the southern end, Mr. Mazzone? A. A park facility. Q. Do you know what kind of park facility is there? A. It's a county-run park. Q. Do you know if some of the land belongs to the State of Florida and some belongs to the county? A. Yes, sir. Q. I'm sorry? A. Yes, sir. Q. And is that what you have determined from your investigation? A. Yes, sir. Q. And do you know whether or not the county maintains and administers the state-owned lands as part of it's county park? A. I don't know, sir. Q. Okay. Do you know whether or not the county has a facility there at that park like showers, any type of convenience area? A. There are bath facilities, and there's a parking facility. Page 42 July 25, 1996 And do you know whether or not the county has a county ranger there? I don't know, sir. Okay. When was the last time you visited Lely Barefoot Mr. Mazzone? Approximately two weeks ago. Was the guardhouse still -- the new guardhouse still the pictures show it was in county's Exhibit 14? Correct. It hasn't been removed has it, Mr. Mazzone? No, sir. MR. BRYANT: If I might have one moment, Madam Chairman. I don't have any further questions of this witness, Madam Chairman. CHAIRPERSON RAWSON: Thank you. Cross-examination. MR. HAZZARD: Thank you. It will take me just a second to move some things to the podium. Madam Chairman, I've noticed that Mr. Bryant and I have many of the similar exhibits, and in preparing to come today I made copies of each of those exhibits for the panel because I think it would be helpful if you look at some of these documents as we're going through. If you don't mind I'll take this opportunity to pass out a book. Many of these are copies of what's already been entered into, and I'll be referring to a number of these documents as I examine -- cross-examine Inspector Mazzone. You all may find it helpful to have some of these documents in front of you. CHAIRPERSON RAWSON: Does Mr. Bryant have a copy of this? MR. HAZZARD: I'm going to give it to him. CHAIRPERSON RAWSON: Okay. Mr. Bryant, would you look it over and see if you have no objection to the board looking at any of these documents? MR. BRYANT: May it please the chairman, normally I would object to evidence being admitted into my portion of the case by opposing counsel; however, to assist the board so that they have got these documents in front of them, I would be more than glad to allow that once I've had an opportunity to see what's in here, because I haven't seen them before. - CHAIRPERSON RAWSON: I'd ask the board not to look at the book until Mr. Bryant has had an opportunity to do so. It's my understanding that some of these 14 exhibits that have already been introduced into evidence are in here. MR. HAZZARD: Some of them were introduced as composite exhibits, and they're on separate -- behinq separate tab entries as we go through. And at this stage I will not -- if Mr. Bryant wants to stipulate -- I'm not looking to enter these as exhibits. I'm merely offering them as copies of the exhibits that perhaps have been already entered and that we will refer to as I examine Inspector Mazzone. And then as we go on through the day, the additional items, hopefully, will be entered as exhibits as I present my case. CHAIRPERSON RAWSON: I'd like to point out to the board while we have this break that the Collier County Land Development Code that Mr. I1azzone has been referring to is in our packet today, and all of the seCClons that he's been testifying about are in our packet. MR. HAZZARD: In addition, it's behind tab one of the Q. park A. Q. Beach, A. Q. where A. Q. A. Page 43 July 25, 1996 book you just received. CHAIRPERSON RAWSON: Thank you. MR. BRYANT: I don't have any objection at all, Madam Chairman. CHAIRPERSON RAWSON: So the board may look at the black notebook that's been given to us by Mr. Hazzard. Mr. Hazzard, you've also handed us another binder which is entitled appendix. Would you tell us what's in there and show that one to Mr. Bryant as well. MR. HAZZARD: This appendix simply was too long to fit in the main binder that you have, and after Mr. Bryant has an opportunity to look at it, if he has no objection, I'll tell you what it is. MR. BRYANT: I don't have any objection to this, Madam Chairman. MR. HAZZARD: In that case the appendix that you have just received consists of a compilation of what are called park intercept surveys. The county park rangers at Lely Barefoot Beach, at the Barefoot Beach Preserve county park, approach various folks who are visiting the park on a daily basis, and they ask them questions, and in particular they ask about did you have any problem with access to the park through the guardhouse. CHAIRPERSON RAWSON: At this time the board then will look, to aid -- aid us in the cross-examination, at the documents that have been handed to us by Mr. Hazzard, and there's no objection from us doing so by the county. Understand that some of these have already been introduced into exhibits -- into evidence by the county, but there are some that have not. And they are not being introduced into evidence at this time but probably will be moved into evidence during Mr. Hazzard's part of the case. So thank you for that aid, and you may continue with your cross-exam. MR. HAZZARD: Madam Chairman, I believe Mr. Bryant has no objection to moving all that material into evidence at this time. It's material that we're both very familiar with. MR. BRYANT: That is correct, Madam Chairman. I think it might aid the board to have -- CHAIRPERSON RAWSON: Well, thank you. That also saves us a lot of time. So at this time we're going to introduce both the black notebook and the appendix handed to us by respondents' counsel as respondents' -- let's call them composite Exhibits 1 and 2. And just be sure the court reporter has copies of them and that she is able to mark them both. MR. HAZZARD: Thank you, Madam Chairman. CHAIRPERSON RAWSON: And thank you, Mr. Bryant, for letting him do that out of order. You're saving us all a lot of time. CROSS-EXAMINATION BY MR. HAZZARD: Q. Inspector Mazzone, how are you today? A. Fine. Thank you. Q. This is not the first time you and I have had an opportunity to do a little question-and-answer session, is it? A. No, sir. Q. I'd like to start by asking you to look at the Collier County notice of ordinance violation. It's behind tab one, and I Page 44 July 25, 1996 believe the board already has it. But if you would look at the -- the notice of violation itself starts, up at the top, Collier County Florida notice of ordinance violation and order to correct violation. A. I have -- I don't -- I don't have your paperwork. I have my own here. Q. It's the third page behind tab one, Inspector Mazzone. He's got the actual exhibits. It's already been entered into -- as an exhibit. Inspector Mazzone, you cited two entities with this notice of violation, correct, the Lely Barefoot Beach Property Owners Association, Inc. and the Lely Master Association, Inc.; is that correct? A. That's correct. Q. Okay. Who owns the land where the guardhouse that we're talking about today is located? A. Lely Barefoot Beach Property Owners Association, Inc. Q. Okay. And when you issue notices of violation, do you typically issue those to the person who owns the land? A. That's correct. Q. Why did you issue this to the Lely Barefoot Beach Master Association, Inc.? A. The master association also has an interest in this property. Q. What interest is that? A. I would imagine that the master association is an association that's a branch of the Lely Barefoot Beach -- they are a part of all the associations within the PUD. Q. What investigation did you do to determine that you should issue this citation to the Lely Barefoot Beach Master Association, Inc.? A. I didn't do investigation that would lead me to want to do this. I was instructed to make out this notice as it appears. Q. And who instructed you to put the Lely Barefoot Beach Master Association, Inc., on there? A. It would have been either the acting director or supervisor. Q. And is it your testimony today, if I can paraphrase it, that you don't have a clue what that association is doing named on this notice of violation? MR. BRYANT: Object. I would object. That's argumentative. It's improper cross-examination. Q. Let me rephrase the question. What clue do you have that leads you to put that name on the notice of violation? A. As I say the notice was typed by the coordinator. I didn't design or make up who it was to be sent to. I did provide information for Lely Barefoot Beach Homeowners -- or Property Owners Association, Inc. Q. SO you provided no information and did no investigation at all regarding Lely Barefoot Beach Master Association, Inc.? A. That's not correct. Q. Okay. What investigation did you do regarding the Lely Barefoot Beach Master Association, Inc., in connection with issuing this notice of violation? A. I can recall seeing the master association's name appear Page 45 July 25, 1996 on various documents. Q. What documents? A. I can't recall the documents. Q. Is it on the building permit application? A. No, sir. Q. Is it on the certificate of occupancy? A. No, sir. Q. Is it on any of the various inspection reports that are in that 14-page exhibit that was entered earlier? A. Sir, it was not by my choice that that was inserted on the form. Q. You've signed this investigator's signature down at the bottom Dennis Mazzone. Does that signature mean anything when you put your signature on there? A. Of course. Q. What does it mean? A. It means that I'm the investigator. I'm signing the form. I'm the contact person to get back to once you receive these papers. Q. Okay. Inspector Mazzone, are you aware that there is a court case going on that pertains to this guardhouse? A. Yes, sir. Q. And are you aware that the two plaintiffs in that court case are the Lely Barefoot Beach Property Owners Association, Inc., and the Lely Barefoot Beach Master Association, Inc.? A. Yes, sir. Q. And isn't it true that the reason the Lely Barefoot Beach Master Association, Inc., appears on here is because they're litigating against Collier County across the way? A. I have -- this is -- I have no comment on that. I have no idea. That's not my thinking. Q. SO you conducted an investigation that lead to this notice of violation being issued; correct? A. Correct. Q. And you issued it to these two entities; correct? A. Correct. Q. And you're unable to tell this board today why you issued it to the Lely Barefoot Beach Master Association, Inc.? A. No. I -- as I have explained, I issued it per instructions of the acting director or my supervisor. Q. And that was who then? A. At that time I believe it was Mr. Dick Clark. Q. And had Mr. Dick Clark done some independent investigation that is also reflected in this documentation? A. I can't answer for Mr. Dick Clark. Q. But as you said here today, you can't explain to this board how the Lely Barefoot Beach Master Association, Inc., is responsible for any of the violations that are inside this document, can you? A. I am not the attorney. I'm an investigator. Q. I understand. A. I gathered the information as I -- as I thought appropriate from the planned unit development information available to me. I've done my field work and the notices that are sent are very Page 46 July 25, 1996 often -- the -- the violators are Q. I'm hearing a little bit of "not my job." Is that what we're getting to here? A. No, sir, it is my job. As I told you, the owner of the property came up on the deed as Lely Barefoot Beach Property Owners Association. We -- I had said that we must cite them or made a suggestion that they be cited. From that point on I did not design this notice as to who it was to be sent to. Q. Inspector Mazzone, you understand why it's important that I'm asking you this question, don't you? A. No, sir. Q. Okay. Well, then let's clarify that. Let's look down the column on the notice of ordinance violation and do you see the part that says "penalties may be imposed"? "Failure to correct the deficiencies on or before the date specified," it goes on and on and on. It says, "if the code enforcement board finds a violation exists, penalties up to the amount of $500 per day, or each day, each violation exists beyond the date set for corrective action in this notice may be imposed." You have placed the Lely Barefoot Beach Master Association, Inc., on notice that they better get in here and explain to this board how come they shouldn't have to pay a $500-a-day fine, haven't you? A. No, sir. Q. You have not? Are you saying that the Lely Barefoot Beach Master Association, Inc., is not potentially liable for up to $500-a-day fine as a result of today's proceedings? A. When I make out these -- any kind of paperwork or have a part in the sending of the paperwork, I don't prejudge who's going to be guilty of what. This is a hearing. This panel -- these are the groups of people that determine if, in fact, there's a problem, how the problem should be resolved, and if fines should be imposed. I don't make that determination. Q. I understand that. However, you did make the determination of who should be brought in front of this board today, didn't you? A. No, sir. Q. You signed the notice of violation that eventually wound up calling the Lely Barefoot Beach Master Association in front of this board, didn't you? A. I am the investigator handling the case, sir. I sign all the notices that go out under my name under my case. MR. HAZZARD: Madam Chairman, at this point I would move the board respectfully entertain a motion to dismiss all charges against the Lely Barefoot Beach Master Association, Inc., since Collier County is unable to tell what in the world they're doing on this notice of violation. I don't know if that's the appropriate time. I've not appeared in front of this board before, but it's eminently clear that one of the two parties cited here has nothing whatsoever to do with this notice of violation. MR. BRYANT: Madam Chairman, I think that this is an improper time to make that motion. I think those are issues of fact, and I think the board needs to hear all the facts before making a decision. CHAIRPERSON RAWSON: Is your motion based on the fact Page 47 July 25, 1996 that you're telling this board that the Lely Barefoot Beach Master Association, Inc., is not a violator? MR. HAZZARD: I represent to this board that Collier County is unable to tell this board how the Lely Barefoot Beach Master Association, Inc., is a violator through the body of the code enforcement investigator who supposedly did this investigation and has spelled out to you all what the violation is. MR. BRYANT: The county hasn't rested, Madam Chairman. CHAIRPERSON RAWSON: I understand. MR. HAZZARD: Is there a provision to move for a directed verdict at the end of the county's case? CHAIRPERSON RAWSON: We will entertain any and all motions that are made before this board. If you want to make the motion now and you want to reinstate the motion at the end of the county's case that's fine because we will entertain all your motions. I think probably it's premature at this time. The county hasn't rested. The county hasn't presented all of it's evidence. So we'll just -- MR. HAZZARD: I'll withdraw it until the county's case has rested. BY MR. HAZZARD: Q. Inspector Mazzone, it will make it difficult for me as we go through this notice of violation if I don't understand going in who the parties are, but for the sake of going through this violation, at least my questions at this point will be addressed to the Lely Barefoot Beach Property Owners Association's relationship to this matter until it becomes clear to me how the master association is involved in this notice of violation. Let me ask you about a basic question. What is the zoning for the piece of prpperty where the Lely Barefoot Beach guardhouse that we're here about today is sitting? A. That would be A.S.T., agricultural special treatment. Q. Okay. I direct your attention, again, to the notice of ordinance violation and the very first column. You see the part where it says address of violation, street address and/or legal description? The next words on the next line say "within Collier County zoning district PUD 77-19(6)." Why doesn't that say within Collier County zoning district A.S.T.? A. I did not insert that on this notice of violation. Q. Well, let me ask you this, Inspector Mazzone. If a piece of property is zoned agricultural special treatment, can there possibly be any violations of some other piece of property involved here? This is a basic question. If it's in agricultural special treatment, how come you're not telling my clients that in this notice of violation? A. We're telling whoever these notices went to that it is within unit 1, tract R. Q. Isn't it true that at the time this notice of violation was prepared, Collier County thought that this guardhouse was zoned within a PUD for Lely Barefoot Beach? A. Who, specifically, are you speaking of in the county? Q. Well, it's a little bit unclear to me. I thought you were the investigator on this case and so at the point you prepared this notice of violation, if you prepared it. Page 48 July 25, 1996 A. Yes, continue. Q. Yes, I was referencing -- you asked me for the person, so I'm asking you is it your testimony that at the time this document was prepared, you knew that this guardhouse was in land zoned agricultural special treatment? A. I knew that the guardhouse was located on tract R, unit 1. Q. Does that mean your answer is no? You did not know it was located on agricultural special treatment? MR. BRYANT: Objection. It's argumentative. I think the investigator has tried to answer the question. He said it was in tract R, unit 1, and if you look at tract R, unit 1, that's where it is. CHAIRPERSON RAWSON: Well-- MR. HAZZARD: Madam Chairman, clearly the notice of violation says it's within Collier County zoning district PUD 77-19, and what we've heard all morning so far is that it's not. And I just can't understand how this notice of violation can put my clients on notice of what the problem is if right off the bat what it says the problem is isn't what the problem is. THE WITNESS: May I respond to that? MR. HAZZARD: I think there's an objection on the floor. CHAIRPERSON RAWSON: There is an objection on the floor that the question is argumentative, and I think that you can go ahead and ask the question because, obviously, the rules of evidence are rather relaxed here. I think his question was at the time you wrote this -- and correct me if I'm wrong. At the time you wrote the notice of ordinance violation, were you aware that this was zoned A.S.T.? THE WITNESS: I don't recall, ma'am. CHAIRPERSON RAWSON: Okay. BY MR. HAZZARD: Q. Investigator Mazzone, agricultural special treatment violation and order to correct A. No, sir. Q. Why is that? A. The -- the reference to PUD 77-19(6) has, as mentioned before, is the PUD number assigned to the -- to the ordinance that was adopted, and we make reference to that as a general location. Q. SO are you telling me that it's not within Collier County zoning district PUD 77-19 like it says on this form? A. It is not within the boundaries of the PUD. Q. Okay. It's not within the boundaries of the Audobon PUD either, is it? MR. BRYANT: MR. HAZZARD: a question. But it is within the boundaries of unit 1, tract R. And it's not within the boundaries of the WYndemere PUD, Is it? I didn't know if that was a serious question. It's a very serious question. No, it is not. do the letters A.S.T. or the words appear anywhere on the notice of violation? Argumentative. Well, that's not argumentative; that's just A. Q. is it? A. Q. A. Page 49 July 25, 1996 Q. Well, let me ask you this. If a -- if a building violates zoning code, does it violate the zoning code that applies to the piece of ground where that building is sitting or does it violate the zoning code that applies to the piece of ground down the street? A. It violates the zoning code of the -- where it's located, and also the people that had located it there have a responsibility to -- having lived up to the ordinances and the codes. Q. Who located it there? A. The people that pulled the permit for it. Q. Are any of those people cited in this notice of violation? A. Yes, sir. Q. Who? A. Lely Development. Q. I'm sorry. Where does this notice of violation cite Lely Development? A. I'm sorry. Lely Barefoot Beach Property Owners. Q. Okay. I believe you've already admitted the building permit application into evidence. It's behind page 4, tab 4. Do you have it there in front of you? A. Yes, sir. Q. Okay. Do you see either of these folks -- either of these entities that are before you today? Do their names appear anywhere on that? I want you to look at it carefully. A. Lely Development -- they were the then owners of the tract A that was -- that's in question where the original guardhouse was located. They had pulled the original permit. Eighty-eight-- permit number 88-734. The construction of the guardhouse took place within a tract that Lely Barefoot Beach Property Owners Association owns, so we cited the property owners. Q. And the master association? A. And the master association. Q. For reasons that remain unclear. Let me ask you this question then, very basically, once again. If the zoning below the land -- below the guardhouse is agricultural special treatment, why isn't this notice of violation written up citing the zoning and describing the zoning uses that are allowed within agricultural special treatment? Why are we talking about a PUD at all? A. It describes the land underneath the guardhouse that we're discussing by making reference to unit 1, tract R roadway, and the violations that we're citing are those in conflict with the PUD regulations and master plan. Q. For a piece of land that the guardhouse isn't on according to the county's case; right? A. For a piece of land that's being occupied by a guardhouse that was constructed by Lely Development. Q. What do you mean or what does Collier County mean when it says in that line that the address of this violation is within Collier County zoning district PUD 77-19? What does within mean? A. please repeat that. Q. I'm talking about within. I simply pointed out to Mr. Mazzone the place on the page that I'm talking about. -- my question is what does within mean in that sentence, of the violation within Collier County zoning district PUD I'm talking the address 77-19, Page 50 July 25, 1996 parentheses, 6, close parentheses. What's within mean? A. If it continues -- it also specifies Section 6, tract R, unit 1. Q. Yes. Yes. A. It continues. It doesn't stop at 77-19(6). There is a continuation of the legal description. Q. SO is it within the PUD or not? A. It is not. Q. Even though it says within Collier County zoning district PUD, et cetera. I don't want to repeat myself too much. Even though it says it, it's not, right? Is that your point? A. It is not within the PUD. Q. And at the time this was prepared, you knew that? A. I don't recall at the very moment I prepared this if I was thinking of the A.S.T. zoning classification for that particular section of road or not. Q. Okay. It certainly doesn't say it's within Collier County zoning district A.S.T., does it? A. It does not. Q. Okay. And, Inspector Mazzone, as part of the documents that have been entered into today, there's something called a statement of violation and request for hearing. There's also something called affidavit of violation. Both of those bear your signature and they were notarized. Are you familiar with those two documents? A. I would have to look at them, sir. Q. Okay. We can provide those out of the exhibits. CHAIRPERSON RAWSON: They're behind tab 1, and the affidavit is the third page behind tab 1. MR. HAZZARD: I thought -- would you just hand them to me so I can see them? Just-- BY MR. HAZZARD: Q. Let's talk about the statement of violation and request for hearing. What does it mean when you put your signature on the bottom and on the second page where it says sworn to and subscribed before me? What did you swear to when you filled this out when you signed it? A. This is sent by the code enforcement board coordinator. Q. I'm not asking who sent it. I'm asking what did you swear to. A. I signed that I am the investigator on this case and that the materials involved in this case are is that which I have -- had taken part in obtaining. Q. When you swear to this, aren't you swearing that you know what's going on in this case and you know why the notice of violation is being issued? A. I do know what's going on in this case, and I do feel as though I know why the violation was being issued, yes. Q. Okay. Now, how about the affidavit of violation on the next page? It's also sworn and subscribed to before a notary, is it not? A. Q. the Lely Correct. And you have sworn on that affidavit of violation that Barefoot Beach Property Owners Association, Inc., and the Page 51 July 25, 1996 Lely Barefoot Beach Master Association, Inc., are responsible for these various violations, have you not? A. Correct. Q. Now, earlier you couldn't explain to me how the Lely Barefoot Beach Master Association, Inc., was responsible, could you? A. My signature confirms that the information that was provided on the notice of violation and within the packets that were sent out is information that I'm familiar with. Q. Exactly. Let's go just one more minute on why this says it's within Collier County zoning district PUD, et cetera, et cetera. I want to make sure that I understand completely. Your testimony is that it's in agricultural special treatment; correct? A. Yes, sir. Q. Okay. And then as a result of that, you went on to describe all these various problems with it being in the PUD that it violates the PUD for; correct? A. It does violate the PUD, sir. But -- this -- in that it does violate the PUD doesn't mean it's within the PUD. It violates the regulations that -- that -- in the guidelines for the development of the PUD. Q. Does it violate zoning for agricultural special treatment? A. I would imagine that it does. Q. You would imagine that it does? Does agricultural special treatment allow you to have a road? A. I can't answer that at this time. Q. You have no clue? MR. BRYANT: Objection. I believe that counsel is being argumentative with this witness every time he says you have no clue. I think that's improper cross-examination. MR. HAZZARD: I'll withdraw the question. CHAIRPERSON RAWSON: Thank you. BY MR. HAZZARD: Q. Inspector Mazzone, if there was a violation at my house -- I live in Berkshire Lakes, and please don't come inspect. But if there was a violation at my house in Berkshire Lakes, would you look at the zoning for Berkshire Lakes to determine the violatioh? A. It would be one of the factors, yes, sir. Q. Would you look at the zoning for the neighborhood across the street from mine to determine the violation? A. It may be another factor. Q. It would be? How could my house in Berkshire Lakes possibly violate zoning for the neighborhood across the street from mine? A. It depends on your violation, sir. Q. SO it's your statement to this board that the zoning territory is not exclusive, that the zoning regulations for a particularly zoned property can extend over the boundaries of that particularly zoned property? A. No. That's your statement, sir. That is not my understanding. Q. I'm just trying to understand what your understanding is. Can you explain to me how the zoning for the Barefoot Beach PUD right here on the county's own exhibit pertains at all to a piece of Page 52 July 25, 1996 land that is not zoned PUD according to your testimony? A. Again, when we cited the registered agents, we mention the entire tract R, unit 1, which runs through the particular section of road that is zoned A.S.T. Q. SO the way you view this, tract R is kind of part of this PUD for these purposes? A. Yes, sir. Q. Okay. Let's talk about the way -- MR. HAZZARD: Madam Chairman, what kind of lunch break CHAIRPERSON RAWSON: I felt we might have one. MR. HAZZARD: Why don't we do it now? CHAIRPERSON RAWSON: Let me ask you this, Mr. Hazzard. How much longer do you think your cross-examination of this witness might go? MR. HAZZARD: I think it could go an hour. CHAIRPERSON RAWSON: Okay. Then it's probably a good time for a break and I think -- if I'm anticipating your next question, it's one of the questions that I was going to try to resolve here before we take a break, and that is this: Simply because it means that probably some witnesses that have left may have to come back. Mr. Bryant, you introduced into evidence the notice of violation and elicited some testimony from Mr. Mazzone in regard to the fact that Ms. Wiseman and Mr. Carroll had signed in both places including a stipulation. Is it your intent to present to this board that stipulation as some evidence that they have admitted to the violation, because if the answer to that question is yes, obviously, Mr. Hazzard is going to have to get those witnesses back here. MR. BRYANT: I would submit to the board that the signature on the stipulation speaks for itself. I have Miss Wiseman's deposition that I plan on entering into evidence. I don't know if he thinks he needs additional testimony from her or not. CHAIRPERSON RAWSON: Okay. MR. BRYANT: That's as open and fair as I can be about it. CHAIRPERSON RAWSON: I appreciate that. I saw them both leave and spoke to them. I actually don't know Mr. Carroll, but I saw Ms. Wiseman leave, and so I just kind of wanted to be sure that I hadn't misled her when I told her good-bye. That would be up to Mr. Hazzard to do that -- make his case, however. Okay. Well, I wanted to be sure that the court reporter marks -- when we leave here the first book as respondents' Exhibit 1 and the second bound book as respondents' Exhibit 2 because, like I said, we didn't give her a chance to do that. So what I think we'll do is we'll take a lunch break. I think it's five minutes after. Is that what that says? MR. HAZZARD: I think it says about 15 after -- 12 after. CHAIRPERSON RAWSON: Twelve after. Let's come back at 1:15. Okay. The code enforcement board will be in recess until 1:15. (Defendants' Exhibit Nos. 1 and 2 were marked for identification.) (A lunch break was held from 12:12 p.m. To 1:20 p.m.) Page 53 July 25, 1996 CHAIRPERSON RAWSON: The Collier County Code Enforcement" Board will be back in session. MR. BRYANT: If I might bring up one housekeeping matter, I know Mr. Allen has a schedule to maintain and has to be out of here at a certain time. I just wanted to know, do you have to be out of here at exactly three or is there any kind of wiggle room with that? If you do I understand that. MR. ALLEN: I've got about 15 minutes, realistically. MR. BRYANT: Because I've got one witness that I want to put on today that I don't want to have to bring back. And I didn't want to call him out of order but I would to accommodate Mr. Allen and everyone's schedule. MR. ANDREWS: Okay. Thank you. CHAIRPERSON RAWSON: We appreciate that. MR. ANDREWS: Very nice of you. CHAIRPERSON RAWSON: Well, let's see. Let's let the record reflect that Miss Reinman (phonetic) has joined counsel table. Nice to see you. I think that we were in the middle of your cross-examination, Mr. Hazzard, of Mr. Mazzone. So you may continue. BY MR. HAZ ZARD : Q. Mr. Mazzone, would you please take a look at the building permit application that you were describing earlier, and I believe that is found behind tab 4 in the notebooks we provided. Mr. Mazzone, prior to the break when you were discussing this, I think it's probably a little difficult for the panel to follow because they didn't have a copy of the application in front of them at the time. You mentioned where this guardhouse building was located, and as I recall -- and I may be wrong. I don't think you read quite the entire sum of what's written in the place that says complete description. Would you note what was given as the complete description for where that guardhouse was to be located? I'm talking on the building permit application. A. On the permit application for permit No. 88-734 under the heading of complete description it states, "Lely Barefoot Beach as per plan, 70 feet south of Bonita Beach Road on center line of Lely Beach Boulevard." Q. I'm not sure we heard the part about on center line of Lely Beach Boulevard earlier. Cline -- C, slash, line means center line; is that correct? A. Very often, sir. Q. Okay. And is that, in fact -- is it true that the guardhouse today is built on the center line of Lely Beach Boulevard? What we're talking about today is -- I -- it's in the middle of the road; right? A. Not being a surveyor it does appear as though it is in the center of the road, yes, sir. Q. Okay. Now, what's that as per plan mean? A. It normally makes reference to the fact that there was a plan that accompanied this permit. Q. And could there be a plan that's submitted and then perhaps revised and things like that? Plans go back and forth, and then a final plan is developed, or how does that work? Or is it just a plan submitted initially? How does it work? Page 54 July 25, 1996 A. A plan is normally submitted, initially. If there's reason to revise it, it may be revised. Q. Okay. And in your review of this situation, did you find some plan in the county records? A. I found some drawings, yes, sir. Q. Drawings. And are they part of that composite exhibit? A. Yes, sir. Q. Okay. And I believe for the board's benefit it's behind tab No.5, but I'd just like you to -- if you can look at the exhibit that you have in your hand and find what you've described as the plan. A. I didn't describe it as the plan, sir. Q. Could you find the drawings? I think -- what was the word you used -- drawings that are attached or that you found in the county records relative to this? Did you say drawings? A. Right. Uh-huh. Q. Does it look a little bit like this? This is simply a blowup of what's in your book 5 for everybody to see. A. Yes, sir. Q. Inspector Mazzone, directing your attention to this, does this have the word guardhouse in great big letters with an arrow pointed to it showing a square in the middle of the road? A. Yes, sir. Q. And what's it call this thing off to the side of the road that Mr. Bryant has been calling the -- I think you've been calling the original guardhouse. What's it call it on the plan? A. On this particular drawing it is referred to as Lely Barefoot Beach gatehouse. Q. Does that language Lely Barefoot Beach gatehouse sound familiar to you based on your reading of the PUD ordinance? Are there references to gatehouse complex site in the PUD ordinance? A. Yes, sir. Q. Are there any references whatsoever in the PUD ordinance that call what you've been calling the old guardhouse today a guardhouse, any references at all in the PUD ordinance that call that site a guardhouse? A. I don't recall, sir. I believe it's only referred to as a gatehouse as it's noted here. Q. If I said to you that historically the folks at Barefoot Beach and the folks at Lely Development have referred to that as the gatehouse and the thing in the middle of the road as the guardhouse, would you have any document you could point to to dispute that? A. No, sir. Q. Okay. Well, then why are you calling the thing a guardhouse today? A. Calling which a guardhouse, sir? Q. Calling the thing that you've been referring to as the guardhouse. The thing at the side of the road. If all the documents -- everything you've seen calls it a gatehouse, how come you keep calling it a guardhouse? A. I think we're speaking semantics here, but the facility was used for the same purpose, I believe, at one time in the past. Q. Who'd you talk to that told you that? A. It was the PUD that addresses the location of this Page 55 July 25, 1996 gatehouse or guardhouse. Q. Okay. Have you ever seen this picture before? It's laying over here on the side of the county commission chambers. A. Yes, sir. Q. Okay. What's this a picture of? Do you have any idea? Do you know what that's a picture of? MR. BRYANT: If it please the board, I'd stipulate that into evidence. MR. HAZZARD: Great. Q. What's this a picture of? A. That appears to be a photograph -- an aerial photograph of the rectangle that's denoted on this plan as a Lely Barefoot Beach gatehouse. Q. Okay. Isn't there something else in that picture? I want you to look at it real closely. CHAIRPERSON RAWSON: Before we do that why don't we mark that for identification purposes? We won't take that, however. Apparently it belongs in this room. But for the record's purposes we need to mark that as respondents' Exhibit 3. MR. BRYANT: May it please the board, that's my exhibit, and I was intending on introducing it and that's why I brought it today. But I appreciate Mr. Hazzard sharing that with us. MR. HAZZARD: I thought the county commission kept this as a memento of the case. MR. BRYANT: No, memorial. I would submit that that should be admitted as the next number -- CHAIRPERSON RAWSON: .I think it's 15. MR. BRYANT: Either 15 or 16. CHAIRPERSON RAWSON: Let us then -- since we've obviously agreed to introduce this, let us then have this be marked and introduced into evidence as county's Exhibit No. 15. MR. BRYANT: And then I would like to substitute a copy of that. CHAIRPERSON RAWSON: Good idea. It's kind of cumbersome for the file. Mr. Hazzard, if you'd let the court reporter -- well, maybe she can mark the photograph. Do you have one with you? MR. BRYANT: You can mark the back of it. (Plaintiff's Exhibit No. 15 was marked for identification.) BY MR. HAZZARD: Q. Inspector Mazzone, this looks like a real old picture of the Lely Barefoot Beach subdivision. Is that what you understand it to be? A. I can't vouch for it's age. Q. Okay. There's a lot of houses and things like that there now; right? A. That's correct. Q. You've -- you've -- you've not seen in your lifetime the Barefoot Beach subdivision looking quite like this, have you? A. Yes, I have, sir. Q. Oh, you have. Okay. Well, good. What is that little splotch in the middle of the road? A. Which one are you referring to? That looks like a guardhouse or gatehouse facility, a housing facility of some sort. Page 56 July 25, 1996 Q. live in? A. No, I don't, sir. Q. That's a guardhouse; isn't it? A. It would appear to be. Q. When I'm talking about the old guardhouse, I'm talking about the thing sitting in the middle of the road just like it says on this plan that's sitting in the county's records. See how that says existing guardhouse? A. That's what the plan reads, yes. Q. SO all this stuff calling that building in tract A the old guardhouse, that's a ruse; isn't it? Nobody's ever called it that, have they? A. I would not call it a ruse, sir. I would call it documented on the PUD and something that's to be taken very seriously. Q. I'm sorry. I thought that earlier you had said the word guardhouse is not mentioned at all within the PUD. A. Gatehouse, guardhouse. Q. Okay. Well, it's very important that this understand that we're not talking about some piece in tract A with a 2-inch overhang into the road. guardhouse is something that goes in the middle of what you understand a guardhouse to be? A. No, sir. Q. That's not what you understand? Well, that's fine. Okay. Let's keep looking at the application for building permit. It's behind tab 4. There's not a choice -- where it says type of structure, about rnidpage, circle one. There's not a choice for guardhouse or gatehouse, is there? A. One moment, please. No, sir. Q. SO miscellaneous is circled and you don't find any fault with that, do you? A. No, sir. I'm not making a judgment on this form. I'm not qualified to do that. Q. Oh, I thought one of the reasons for issuing this notice of violation was because there were problems with this application for a building permit? A. That's correct. Q. And you're not the one who decided that? A. I'm not the one that made out this form. Q. Oh, I understand you're not the one who made out the form. You're the one who reviewed the form and analyzed the form and decided that somehow it relates to this notice of violation; is that correct? A. That's correct, sir. Q. Okay. And right in the middle of the page where it says construction, I think earlier your testimony was that they applied for an addition; is that right? A. Correct. Q. And it very clearly shows the word addition is circled; right? A. Q. You don't think that's a house big enough for people to panel of property sitting We're talking a the road. Is that That's correct. What's that splotch over to the left? It looks on my Page 57 July 25, 1996 copy like perhaps underneath some scribbling is the word new. What's it look like on yours? A. It appears as though it's a circle that's been crossed out, sir. Q. Who crossed it out? A. I do not know. Q. Is it possible that when the builder brought in the application for a building permit the builder had circled new and a person in Collier County said -- a person employed by Collier County said, after looking at this plan, no, that's an addition, cross out new, circle addition? A. I can't answer that. MR. BRYANT: Objection. That's total speculation. There's no way this witness can answer that question. I was making an objection, Mr. Hazzard. MR. HAZZARD: Excuse me for stepping on Mr. Bryant's feelings. CHAIRPERSON RAWSON: Here's that. Anything is possible, and possible? Anything is possible. question. BY MR. HAZZARD: Q. SO is your answer to tell me, no, that's not A. I'm saying that I circled that. Q. Do you know who circled it? A. No, I do not, sir. Q. Did you make any effort whatsoever to talk to anybody within the department that accepts building permit applications to determine whether they may have circled addition or told somebody to cross out new and circle addition? A. I don't know anybody in the department that's still there from 1988, sir. Q. SO looking at this you assumed that this was the builder's error; correct? A. I didn't make any assumptions, sir. Q. Well, you testified earlier that the builder applied for a permit calling it an addition, and you had extensive testimony that an addition, in your mind, would have been something different than what was built; correct? A. That's correct. Q. But you made no effort whatsoever to determine, in fact, whether the builder circled addition; right? A. No, I made no effort. Q. Made no effort, you simply assumed that the builder had done it; right? A. No, I didn't assume it. Q. You didn't assume it. Okay. That's fine. In the course of your extensive investigation, did you determine whether a building permit was actually issued for this structure? A. Yes, sir. Q. Was it issued? A. Yes, sir. what I would comment on so I guess the question, Is it So let's move on to the next anything is possible or were you about possible? can't speak for the person that Page 58 July 25, 1996 Q. A. Q. the day A. Q. 4-7-88 A. Excuse me. It was issued on 4-11. Q. SO it was approved on 4-7, issued on 4-11. A. Yes, sir. Q. What went on in the interim? A. I couldn't tell you, sir. Q. Has it been your experience in Collier County that somebody walks in, hands in a building permit application, and a little over a month later out comes a permit? A. Sometimes, sir, yes. Q. And do you have any idea whatsoever what might account for that time lag in between? A. Many things could account for it, but I'm not in the that part of the operation. Q. Okay. But eventually a permit was issued; correct? A. Yes, sir. Q. Okay. I believe included within the documentation that is part of that exhibit are some internal county documents. They appear to be internal county documents. Maybe you can tell me what they are. If you don't mind I'll just point you right to the one I'm talking about. This is the one, two, three, four, fifth page of what's been marked as the county's Exhibit 7. And, I believe, for the board's convenience I'll direct you in just a second to where that is. It's behind tab 4. It's the page immediately behind the application for building permit. Inspector Mazzone, can you tell this panel what that document is? A. It's a building permit application. Q. That's the building permit application. Does the builder fill that out or is that something that the Collier County department assembles? A. I don't know who filled this out, sir. I'm not part of that operation. Q. Okay. Midway down the page there's a line across it. Below that it says zoning, something about please, please, please do this, return to zoning. You think the builder would have put that on there? A. have Q. When was it issued? On the date 3-3-88. Are you sure about that? you apply for it? Bear with me. It was approved on Do you have any idea what went on You can get a building permit 4-7-88. between 3-3-88 and Sir, the page you've turned to in my document does not that writing on it. Inspector, I stand corrected. MR. HAZZARD: David, do you recognize that, because apparently this doesn't exactly match the document that's been introduced into evidence? Do you recognize that from our discovery? MR. BRYANT: I recognize the document I've admitted into evidence. MR. HAZZARD: Okay. BY MR. HAZZARD: Q. Inspector Mazzone, I'm going to show you a document. and Page 59 ask you whether you've ever seen that before. Have you ever seen that before? A. Q. County? A. I believe I have when I've gone through these documents. Q. It, in fact, came from the Collier County file in this matter; is that correct? A. Yes, sir. Q. There's a small notation on the one that's in your hand and that's in the panel's book that says Plaintiff's Exhibit No.5, 2-27-96, Mazzone. You see that little sticky kind of in the side there, to the right-hand side? A. Yes, sir. Q. Do you recall how that sticky got on there or what that signifies? A. I believe when we discussed this in your office at one time, sir, this became part of the -- Q. -- deposition? A. Yes, sir. Q. This was an exhibit through your deposition in a court case? A. Q. land is A. Q. A. Q. right? A. That's what it says, yes, sir. Q. Okay. On the line immediately below that what's it say? A. .Approved by. Q. And then? A. What appears to be the letter N, and what appears to be the letter R. Q. What do those letters mean? Do you have any idea? A. I don't know, sir. Q. Could they be somebody's initials? MR. BRYANT: Objection. Speculation. A. I don't know, sir. Q. Okay. Do they stand for not required? A. I don't work in this department, sir. I don't know what these initials mean. Q. As far as you know, to get a building permit in Collier County as of as least 1988, was zoning approval required? A. Yes, sir. Q. But you wouldn't want to speculate as to what N.R. means on that block, would you? A. No, sir. Q. Okay. Even though next to it there appears to be some sort of notation please, please, please do this, return to zoning; right? A. July 25, 1996 Yes, sir, a copy of this. Yes, sir. Have you ever seen it within the records of Collier Yes, sir. Okay. Would you tell me what this says zoned where the guardhouse is located? This indicates that land is zoned PUD. Do you have any idea who wrote that? No, sir. It pretty clearly says the proposed use about how the is guardhouse, I see the notation, sir, yes. Page 60 July 25, 1996 Q. Okay. Anyway, we don't quite know or you can't testify with any firsthand knowledge what went on between March the 3rd of '88 and the date this permit was issued; correct? A. That's correct. Q. But a permit was issued; correct? A. That's correct. Q. Okay. And after the permit was issued, did your investigation detail for you whether or not there were interim building inspections along the way? A. Repeat that, please. Q. Yes. After the permit was issued -- let me back up. After the permit was issued construction started; right? A. I would imagine so. Q. Yes, I would too. It's there today; correct? A. That's correct. Q. Somebody must have built it; correct? A. Yes, sir. Q. SO it must have started -- you're not accusing them of starting construction before they got a permit, are you? A. I'm not accusing them of that, no. Q. Good. So somebody built it; right? A. Apparently, yes, sir. Q. Okay. In the course of building something in Collier County, are there interim inspections along the way? A. Normally as a course of action, yes, sir. Q. And, in fact, during your investigation did you find some Collier County internal documents that indicate various inspections that went on with this property? And for the panel's information, I'm now behind tab 7 in the book. A. Yes, sir. Q. Let me see what you're looking at, if I might, I've now pointed to the second page of the county's exhibit that's in front of you and it's the -- Exhibit No.7. What's that document that's the second page of Exhibit No.7? A. It appears to be a record of inspections, sir. Q. Okay. And, in fact, as you look down there, isn't there a column that says date passed? You see the date-passed column? A. Yes, sir. Q. Okay. And there is some dates in that column; correct? A. That's correct. Q. What would that indicate to you? A. It appears as though an inspection was made on a particular date at a particular time by a person and that it had passed. Q. Okay. I'm not asking you to speculate on anything that's too strange here, am I? That's how it appears? A. No, sir, it does appear to be. Q. And at the end of this series of inspections -- does anything happen after all these inspections are done? Does the county do some final act after all these inspections are done? A. Historically. Q. And what would that be? A. "C.O.'ing" whatever is approved. Q. What does "C.O.'ing" mean? Page 61 July 25, 1996 A. Certificate of occupancy. Q. What does it mean to get a certificate of occupancy? A. I would imagine that the inspections pass and that it is -- the -- the structure is able to be occupied. Q. Okay. Would you turn the page on your exhibit. You don't need to turn the page. It's -- on this particular exhibit it's copied on the bottom of the page; correct? There's a document the heading of which appears to say inspection report, and it's behind tab 8 in your books. Are those -- is that inspection report on the -- in the records of Collier County, does that inspection report come right at the bottom of that document that's at the top of it, or has somebody put that on there in copying? A. It would appear as though it was placed there for copy purposes. Q. Okay. And that inspection report that you see there you've encountered that before during your investigation of this matter; correct? A. I've seen this particular report, yes, sir. Q. Found it within the records of Collier County? A. Correct. Q. What is it? A. Pardon? Q. What is it? A. What is what, sir? Q. What is that thing at the bottom of that page that says inspection report? A. I would imagine it's just what it says it is, an inspection report. Q. What's it used for? A. Here, again, we no longer use this particular report. I can only surmise that this was then used for an indication that certain phases of this project were passed or not passed by people inspecting. Q. Okay. And what does this particular inspection report indicate in terms of whether certain phases of this project were passed or not passed by the person inspecting it? A. I see checkrnarks indicating inspections passed. Q. Okay. Do you see a checkrnarks indicating zoning inspection passed? A. I do. . Q. And this has a date on it of 6-13-88; is that correct? A. 6-10 shows on the top of it. 6-13 shows time ready. Q. You see date of inspection underneath what appears to be a signature? A. Yes, sir, that does show 6-13. Q. '88? A. Yes, sir. Q. And what date was the certificate of occupancy issued by Collier County for this building? A. 6-14-88. Q. SO this is the final inspection report everything's a-okay, we're gonna give you a C.O. right? A. It appears to be that, sir; Page 62 July 25, 1996 Q. Okay. Is this building that we're here talking about today in the same spot that it was in on 6-13-88, as far as you know? A. I didn't inspect it in 1988, but it would appear as though it was not moved. Q. You don't have anything to indicate at all, do you, that this thing moved since June the 13th of '88, do you? A. That's correct. Q. And you're not alleging in that notice of violation that they had this thing in one place and then they dragged it into some other place, are you? A. No, sir, I'm not. Q. It would be a little hard to drag this structure without anybody noticing, wouldn't it? A. No, sir, it wouldn't be. Q. Wouldn't be hard? Okay. Well, maybe it got dragged. Let's move on. You said earlier -- oh, let's go back. Mr. Allen had a question earlier concerning the -- when there was a surveyor up here concerning the plans that were submitted and -- versus where the guardhouse is actually in existence today. Do you recall him asking the surveyor and the surveyor couldn't -- couldn't quite answer the question. Do you recall the question from the panel from Mr. Allen earlier? You don't recall? A. Could it be repeated? I don't recall it verbatim, no. MR. HAZZARD: Mr. Allen, would you like to ask that question about whether the -- MR. ALLEN: I asked the question is the guardhouse in the location where it was permitted. MR. HAZZARD: Well, I thought the question was is it in the location that the plans showed that it was going, but let me just ask that question. BY MR. HAZZARD: Q. Is the guardhouse in the location where this plan that's in the Collier County records showed it was going to be? A. Yes, sir. Q. All right. I recognize we haven't done a survey, and we haven't exactly measured it out, but it's close at least; right? A. It appears so. Q. From your visits to the guardhouse, is it somewhat south of this entryway to the Collier County parking lot? A. That's correct. Q. And this document that I'm holding in my hand has a notation that looks like a measurement to me that says 20 feet? A. Yes, sir. Q. SO this thing is where they said they were going to put it; right? A. Who's they? Q. The person who brought this plan into Collier County, got the building permit approved, and all that other kind of stuff we've been talking about. A. No, sir, it is not. Q. It's not,where they said it was going to be on this -- on this plan? A. On that plan, yes, sir. Not on the permit. Page 63 July 25, 1996 Q. There's a discrepancy between the building permit application and where it actually is; right? A. That's correct, sir. Q. And the discrepancy is that the building permit application says 70 feet south, and this is 200-something feet south of Bonita Beach Road; right? A. That's merely one point made on the building application. The others -- job address, the existing electric, the addition, those are all references to a tract A location~ Q. I'm glad you reminded me about existing electric. Have you ever encountered a situation where during the course of building plans change? A. I am not in the building department, sir, but yes, on a personal basis, I have. Q. I'll ask somebody else at another time for more details about that. When Mr. Bryant was examining you, you told him that when you went out and took those photographs in October of 1994 that there was one arm -- gate arm up and one gate arm down; correct? A. Yes, sir. Q. And you were unable to explain why that might be, correct? A. Q. Barefoot A. That's correct. Okay. But you've thoroughly read the PUD for Lely Beach, haven't you? I have read the PUD, yes, sir. MR. HAZZARD: And for the benefit of the panel, the entire document appears behind tab 12 in your books. Q. Do you have the PUD document over there? A. Which document? Q. The PUD current amended version 88-63. A. I have 85-83. Q. Well, let's see if it's got the same thing in it. Has it got a page 64 in it? A. Yes,' sir. Q. Well, let's see if your page 64 is the same as my page 64. Can you turn to page 64, please? A. I'm there, sir. Q. Okay. Does your second paragraph up from the bottom of the page -- does the one you're looking at like the one I'm looking at sayan extra travel lane shall be constructed by the developer at the entry gate permitting security checks without blocking traffic flow? A. Correct, sir. Q. Well, perhaps that wasn't fresh in your mind when Mr. Bryant asked you the question this morning why would one gate be up and one gate be down. Can you now having read and refreshed your memory about what's in the PUD render a guess as to why one gate might be up and one gate might be down? A. I don't know the operation of the gate, sir. Q. It's allowed by the PUD ordinance; isn't it? A. There is an allowance for that, yes. Q. So all that discussion about one gate's up and one gate's down and that's blocking traffic, that's exactly what the one gate down's supposed to do in the PUD ordinance; isn't it? A. The reference in this PUD ordinance is in reference to Page 64 July 25, 1996 the gate located an. tract A, sir, not tract R. Q. What gate located on tract A? A. Your -- your guardhouse or gatehouse. Q. Let me ask you this. Is this page 64 a part of the PUD ordinance that refers to tract A? A. Yes, sir. Q. It is? Back up two pages to page 62. What section is that? A. It's project project improvements. Q. Okay. Back up to page 15. What section is that? A. That would be Section 4.2(A), uses permitted. Q. Okay. "Tract A gatehouse complex site" is what it says at the top of my page; right? A. That's correct, sir. Q. Okay. Are you telling me that the item that's on page 64 second paragraph from the bottom that says, "an extra travel lane shall be constructed at the entry gate," et cetera, affects tract A only? A. I would believe so, sir. Q. v',lhy? A. That's what this PUD is written for, tract A. Where-- we're not speculating on another PUD, are we? Q. No. No. Unless 77-19 or one of those other PUD numbers we were talking about this morning comes into play. I'm asking you does this reference that says the developer can put an entry gate and construct an extra travel lane and put an entry gate and that would permit security checks without blocking traffic flow, I'm asking you whether this provision is in any way tied to any tract within the Barefoot Beach PUD. A. Yes, sir. Q. How? Where do you see that in the PUD ordinance? A. Section 4. Q. Okay. Back to Section 4. A. Platted Lely Barefoot Beach, unit 1, tract A of gatehouse complex site. Q. SO is it your testimony -- let me make sure I understand it. If the guardhouse that we're talking about today -- strike let me start over. If there were a gate south of the site where the gate is now within the confines of what you claim is the Barefoot Beach PUD -- there was a gate here. Could my clients stop traffic like it says in the PUD they can? A. You mean if there was an extension from the --. Q. I don't care where it hangs from. If you say it's got to hang off the thing, it hangs off the thing. Any way you want to conceive it. How can my clients do what it says they can do on page 64? Explain it to me. A. On page 63 it makes mention of roads and drives under C. Q. They need to do it on a road if they're going to stop traffic. You agree? A. Correct. Q. Okay. So is there -- A. It makes reference to the main north-south road which is the very same road areas we're speaking of. Page 65 July 25, 1996 Q. Lely Beach Boulevard. Right there's where they'd want to stop it because that's where people are coming in? MR. BRYANT: Your Honor, I'd have to object and ask that the witness be allowed to answer the question without commentary while he's trying to answer it. MR. HAZZARD: I'd love for the witness to answer. MR. BRYANT: I realize he is trying to help him, but I would rather hear it from the witness. MR. HAZZARD: I would, too. BY MR. HAZZARD: Q. Please explain to me where my clients -- in your opinion, where can my clients put a gate permitting security checks without blocking traffic flow? A. They would have to come up with that answer. I am not a builder, sir. Q. Okay. We're going to play -- well, next week we'll take this one down from here, and we'll put it down there, and we'll see if Mazzone likes it, and if he cites us, then we'll take it down from there, and we'll put it over in this other spot? A. I beg your pardon. I have never expressed a personal opinion on this gate. Q. What is your personal opinion? A. I don't have one, sir. Q. You're just doing what you're told; right? A. No , sir. Q. You're not doing what you're told? A. I'm doing my job as it is expected of me. Q. Part of your job as a helpful Collier County building inspector -- is part of your job to keep people from getting into trouble on zoning issues? A. Yes, sir. Q. Could somebody call you up and say, gee, I'm thinking about doing this, would that be all right? Can you tell me? Could it go here? A. That very often happens. Q. That very often happens. Well, I'm asking you. Can you tell me, where could we put this gate? A. I would refer you to the planners. Q. Okay. Okay. But it's pretty clear, according to this PUD, that my clients are allowed -- according to the county commission that passed this PUD, my clients are allowed to have security checks without blocking traffic flow; right? A. That's correct, sir. Q. And when I read it this -- and, you know, I can tell -- sometimes my reading of this is different than your reading of this. This to me says you got two lanes coming in. You can have a gate over one, and people can stop, and you can check who they are, and no gate over the other and people just go on by, and they're not being blocked. Is that how you read it? A. No, sir. Q. Oh, okay. Now, let's talk about how you determined that this violation exists. You went out to Barefoot Beach; right? A. I did, sir. Q. When was that? Page 66 July 25, 1996 A. After looking at the PUD documents and the maps and the permit and the other items we've discussed here today. Q. Okay. And let's back up. What prompted you? What was the first -- first thing that prompted you to begin this investigation? A. I was -- I was requested to enter into the investigation. Q. By whom? A. By the acting director. Q. Okay. That was Mr. Clark you referred to earlier? A. Yes, sir. Q. Okay. Did Mr. Clark say Mr. -- or words to this effect, because I know this isn't a quote. Did he say, Inspector Mazzone, would you go check this out? Or did he tell you there's a problem out there, go write it up? Or what did he tell you? What was the nature of it? A. The case was an ongoing case, sir. I came in towards the beginning stages of it or towards the middle of it. It's been an ongoing case, and I was asked to do some further research into it. Q. Okay. And you went out, and you took those pictures that we've seen; correct? A. That's correct. Q. Okay. And you testified earlier that folks are being stopped at the gate -- at the guardhouse, being stopped or stopping, or is there a difference? A. You tell -- I don't remember how I testified to that. Perhaps you can -- Q. I'll ask it again. What's your recollection of what was going on? A. Vehicles were stopped at the gate. Q. Vehicles were stopped. When you say vehicles were stopped, do you mean vehicles were stopped by someone or vehicles were stopped like that car is stopped right now? A. The stopping of the vehicle -- I wasn't manning the gate. I don't know how the stopping of the vehicle occurred. Q. Okay. Did you ever talk to any of the people who were driving the vehicles that you saw? A. No, sir. Q. Do you know where they were going? A. No, sir. Q. You testified earlier that there's an easement that says you have unrestricted access to the beach and that this stopping or vehicles stopping interferes with that easement; is that correct? A. That's correct. Q. Any of those people going to the Beach that you saw? A. I don't know, sir. Q. Well, then how can you charge us with this violation if you don't know whether those people were going to the beach? A. = also don't know if they weren't going to the beach. They might have been. Q. Let me ask you this. Do people have a right, as they're driving down Lely Beach Boulevard, to stop their car and say hello to the attendant in the guardhouse? A. I'm nobody to question people's rights, sir. Page 67 July 25, 1996 Q. No Collier County ordinance prohibits somebody from stopping at this guardhouse and saying hello to the attendant, does it? We haven't gotten to that stage, have we? A. No, sir. Q. Okay. Similarly, no Collier County ordinance prohibits anybody from stopping and saying, you know, oh, where's the restroom, can you give me some directions to the park, how you doing, any of that kind of stuff, is there? A. No, sir. Q. And people who live within Lely Barefoot Beach, they're allowed to stop at that guardhouse, aren't they? A. The people that live in Lely Barefoot Beach would also be allowed to stop if they were going to the right location -- the correct location, which would be tract A. Q. Okay. So -- so you don't have any idea of all the people you observed whether they were residents of Lely Barefoot Beach, do you? A. No, I don't. Q. You assumed that they weren't, though, didn't you? A. I didn't assume anything, sir. Q. Well, you said that this is blocking their access to this blocking their use of this easement, this unrestricted easement to get to the county park. Wouldn't you have to be going to the county park to have that easement come into play? A. You could go home first to put on your bathing suit and then go to the park, sir. Q. Well, can people who live in Barefoot Beach ask the guard -- ask the service there to be the drop-off point for, oh, I don't know, Federal Express packages or something like that? A. I would hope not, sir. Q. You don't want them to do that there, huh? A. It's not my decision, sir. Q. Oh, okay. Well, if the folks at Barefoot Beach want Federal Express to deliver something at the guardhouse, Collier County doesn't have an ordinance that prevents that, does it? A. No. I have no opinion on that, sir. Q. SO you don't have an opinion as to whether people have a right to stop at the guardhouse if they want to, do you? A. No, sir, I don't. Q. Okay. Let me ask you -- let's look at these photos. Can you hear me all right from over here? COURT REPORTER: May I change my paper before we continue, sir? MR. HAZZARD: Why don't you go ahead and change your paper. Shall we take five? CHAIRPERSON RAWSON: No, let's continue. (A short break was held.) MR. HAZZARD: We ready to resume? CHAIRPERSON RAWSON: We are ready to resume. We were talking about a possible date for reconvening this board in order to talk about things. And if you want to have someone call your office for you, what we're looking at is Tuesday the 30th or Wednesday the 31st, which is next week. And if you want to have somebody check that out, we'll continue with the testimony and bring that back up again at Page 68 July 25, 1996 three or thereafter. MR. HAZZARD: I can check with my office and have that answer by three o'clock; however, I'm not certain whether I can get to all my witnesses in that time. We'll make some type of an arrangement if the dates are clear on my calendar. CHAIRPERSON RAWSON: I guess we're looking at the 30th. MR. HAZZARD: The 30th? CHAIRPERSON RAWSON: I need -- the four of us have to be here. MR. BRYANT: The 30th is fine on my calendar. CHAIRPERSON RAWSON: So I guess we're looking at the 30th, which is Tuesday. MR. HAZZARD: We're checking. BY MR. HAZZARD: Q. Inspector Mazzone, I'd like to photos. In the large one that's on the you tell me what that is? I'm pointing that a sign that you're familiar with? A. It lS a sign. Q. It lS a sign? Well, I've had that sign -- that photo -- a little close-up taken. Photos are behind tab No. 16. You've been to Lely Barefoot Beach before; correct? A. Yes, I have, sir. Q. I'm going to show you a photograph, and I think that's the same sign that's kind of hidden in that picture up top. You can't quite make it out. Would you agree with me that's the sign, it's just a little clearer picture? A. According to where this is located in this photograph, yes, it is. Q. Okay. I see some circles up at the -- looking at the photo that I've handed you which is -- MR. HAZZARD: I can show you which one it is in your book, Madam Chairman. CHAIRPERSON RAWSON: Yes. MR. HAZZARD: It's the second photo in, for benefit of the panel. CHAIRPERSON RAWSON: Thank you. BY MR. HAZZARD: Q. There are a couple of circles up at the top with what what looks to me like the Collier County emblem. Is that what you would agree those circles are? A. The familiar turkey. Q. The turkey, right. What does that sign say? A. "All park visitors shall proceed directly to preserve without stopping." Q. Okay. Who put that sign up? A. I don't know, sir. Q. Would you guess that Collier County put it up? It's got the Collier County symbol on it. A. I don't know who put that sign up, but those symbols are readily available. Q. Okay. You have any idea what the dimensions of that sign are? A. No, I do not. ask you about these upper right-hand corner, can to what I think is a sign. Is Page 69 July 25, 1996 Q. If I told you it was 3 feet by 4 feet, would that would you dispute that? A. No, sir. I have no reason to. Q. Okay. There's another photo in the packet that has a person standing next to the sign, and I'll show it to you. And although I know camera angles can be deceiving, that looks like a pretty big sign to me. Would you agree? A. Yes, sir, it does. Q. It could be 4 feet high and 3 feet wide -- A. Correct, sir. Q. -- now that we have the perspective of the person. Do you assume that the people you saw stopping at the Barefoot Beach guardhouse were unable to read that sign? A. I don't make that assumption, no. Q. You don't? Is there a direction there that says if you're going to the preserve, proceed without stopping? Is that a pretty clear direction to you? A. That's what's printed on the sign, yes, sir. Q. SO if you observed vehicles that are stopped, why did you assume that they didn't want to stop and that it was the guardhouse that stopped them? A. I've observed several vehicles stopping at one time perhaps not because they wanted to exchange conversation or information but perhaps because they were behind another vehicle. Q. Well, perhaps. Perhaps they couldn't read it? A. They couldn't get around the other vehicle because the other gate was in a downward position, sir. Q. Okay. So are you telling me that the folks at Lely Barefoot Beach have to provide enough southbound traffic lanes so that no car can ever have to stop behind another car who's stopped? A. No, sir, I'm not saying that. Q. I didn't think so. I'm very hopeful of that. I'd like you to direct your attention to the notice of violation and, in particular, to the copies of the zoning code that are attached to that. Can you find that in your records over there? You attached this, for lack of a better word, backup material to the notice of violation that was served on both of my clients; correct? A. That's correct, sir. Q. Why? A. For their information so that they would be aware of what these numerals stood for. Q. Tried to be helpful; right? A. That's correct, sir. Q. Okay. Let's look at the first one, Section 2.1.15, prohibited uses and structures. In that first paragraph -- I think you or Mr. Bryant already read it. But just to refresh I read, "any use or structure not specifically permitted in a zoning district as a permitted use, conditional use, or use allowed by reasonable implication shall be prohibited in such zoning district." Now, I know you've already told me that for purposes of this notice of violation, the zoning district we're talking about is the PUD for Lely Barefoot Beach; right? A. That's correct, sir. Q. Okay. We're not talking about agricultural special Page 70 July 25, 1996 treatment; right? A. We're talking about. the area that is -- the all inclusive area of tract R within unit 1. Q. Okay. If you have a private road, is a guardhouse in the middle of it a use allowed by reasonable implication? A. No, sir. Q. What does use allowed A. I would imagine if it use development sections, that it is not. Q. Is this Section 2.1.15 only applicable to PUDs? A. No, sir. It's applicable to all zoning districts. Q. Okay. So in whatever zoning district a private road might happen to be, how is a guardhouse not a use allowed by reasonable implication? A. Again, the PUD the implication is that the guardhouse must be located in tract A, not the tract R where it is currently located. Q. Yes. But the zoning violation says -- correct me if I'm wrong, but if you're talking about a zoning violation for a piece of land, you need to look at the uses allowed by reasonable implication for that piece of land, don't you? A. That's correct, sir. And that's why we also cited for unified control and ownership. Q. We're going to get to the various other aspects, but at this stage I'm interested in understanding why a guardhouse in the middle of a private road is not a use allowed by reasonable implication. There's not a list somewhere in Collier County of all the uses that are allowed by reasonable implication, is there? A. When you go over what is allowed in a zoning -- particular zoning district, those items that are not mentioned are disallowed. Q. Okay. here? A. I can't answer that, sir. Q. This board, perhaps, could be a group that decides whether this use is a reasonable implication for a private road? A. Depending on who's reviewing it, yes, sir. Q. Okay. Well, let's move down into Roman numeral two. I notice on the copy that I received that was attached to my clients' notice of violation there's some underlining that's in that paragraph No.2. Do you know how that underlining came to be there? A. Roman numeral two? Q. No. I'm sorry. It's No.2 under Section 2.1.15, prohibited uses and structures paragraph No.2. There's underlining. Is there underlining on your copy? A. You mean where it says use allowed by reasonable implication? Q. No. A. I don't have what you have, sir. Q. You don't? I'm sorry. On the notice of violation that's been marked as an exhibit -- I'll get it for you. Does that look to you to be the documentation that you provided my clients in a helpful way to let them know what this is all about? by reasonable implication include? was implied in the PUD, the land then it would be allowed there, which Who's reasonable implication are we talking about Page 71 July 25, 1996 , A. Yes, it does, sir. Q. Okay. And I'm asking you do you know who put the underlining in there. A. No, I do not, sir. Q. You didn't do it? A. No, I did not, sir. Q. SO do you know if there's any significance to that underlining? A. I don't know what it would be, sir. Q. Do you recall whether that underlining was there when it was given to my clients? A. I don't recall, sir. Q. Okay. Well, does this Section No. 2 apply in any way to the case we're talking about today? A. It doesn't appear so, sir. Q. SO my clients have not been charged with a violation of Section 2.1.15, sub 2, have they? Or the panel doesn't need to worry about me going through that paragraph to figure out how this guardhouse is affected by that paragraph? A. I don't believe so, sir. Q. Okay. Well, let's look at 2.1.15 and then the item 3 that goes over to the next page. Is there anything in that paragraph that applies to this case? A. Does not appear so, sir. Q. SO really the operative paragraph for purposes of the notice of violation in Section 2.1.15 is paragraph 1. Can we agree to that? A. Yes, sir. Q. And the guardhouse isn't a use -- well, let's -- we've already talked about the first sentence. In the second sentence there's no roadside sales going on in this case, is there? A. Not to my knowledge, sir. Q. Okay. We're talking about the first sentence? A. Sir, I was told that there were clicking devices that were being sold from the guardhouse at one point. Q. Who told you that? A. A tenant of Lely. Q. What's a clicking device? A. A clicking device was described to me as being a device to open up the gate and became offensive to the party that had brought it to my attention. Q. They didn't want people selling clicking devices at the guardhouse? Is that what I'm to understand? A. The device was to open up the gate. The annoyance was caused by the mere fact that the gate was closed to begin with. Q. Oh, okay. So in this notice of violation are you charging my clients with roadside sales in violation of 2.1.15, paragraph I? A. No, sir. Q. Okay. Clicking device was just sort of an aside? A. Well, you had asked me about it and, yes, indeed, there were sales from the guardhouse. Q. SO the applicable sentence for purposes of the first violation that you've described is sentence No.1 of 2.1.15, sub Page 72 July 25, 1996 numeral 1 -- sub item 1; correct? A. Correct. Q. Okay. The next ordinance that you have referenced is 2.2.20.2.1. I think you have to skip a page to get there. Oh, before we move to that, 2.1.15, isn't this an ordinance about selling fruit on the side of the road and people who run up to your car and solicit money from you when you're stopped at the traffic light? A. In part, sir, yes. Q. But it has other applications as well. Is that what I'm understanding? A. As we have just discussed, the paragraphs that don't apply would be those of solicitation and sales. Q. Okay. A. The first paragraph deals more with what we're speaking of here. Q. Okay. And you can't explain why paragraph 2 has all that underlining in it? A. I didn't underline it, sir. Q. Okay. You don't recall whether it was underlined when it was received by my clients? A. I don't recall, sir. Q. Okay. Let's look at 2.2.20.2.1. There's a heading. It looks to me like a heading. It's in italics, "relation of planned unit development regulations to the growth management planned zoning subdivision or other applicable regulations." We don't violate the heading, do we? A. I beg your pardon? Q. Is there a violation of the heading? It's not possible to violate the heading; right? That's just the caption of this paragraph? A. I would imagine that's what that's for, sir. Q. Okay. I'd like you to read the first sentence of that 2.2.20.2.1. A. "Relation of planned unit development regulations to the growth management planned zoning subdivision or other applicable regulations." Q. How about the next sentence? A. "All development regulations and other applicable provisions of all county ordinances --" Q. Hold on. Didn't you just skip a sentence? Doesn't it start, "All applications for PUD shall be in full compliance with the future land use element and the goals, objectives, and policies of all elements of the growth management plan"? A. I'm sorry. I was on another page. Q. Okay. A. We're speaking of 2.2.20.2.1? Q. Correct. A. All development regulations and other applicable provisions? That sentence? Q. No . I'm talking about A. Oh. "All applications for PUD shall be in full compliance with the future land use element and the goals, objectives, and policies of all elements of the growth management plan." Q. How does that sentence -- or does that sentence apply to Page 73 July 25, 1996 the notice of violation we're A. In that the elements plan, and the authorized work followed. Q. Any problem with the application for the PUD? Is that what you're telling me that there's a problem with the application this sentence starts out all applications for PUDs; correct? Is there a problem with the application for the PUD that the guardhouse isn't located in? A. No. The application appears to be fine. Q. SO does sentence 1 have any implication whatsoever to this case? A. No, sir. Q. How about the sentence that you were trying to read to me before? All development regulations -- the second sentence of that paragraph? A. That all development regulations and other applicable provisions of all county ordinances such as but not limited to all provisions of the Collier County Land Development Code as may be amended shall apply unless specifically modified by the approved PUD document and PUD master plan. Q. Okay. How does that sentence apply to the violation we're talking about today? A. That the lands that comprise the area in question have taken on a PUD -- PUD development rather than development by the previous zoning regulations that were in place for that same land before the PUD was approved. Q. Well, maybe I'm not reading this sentence telling you what codes Collier County Land Development Code approved PUD document and PUD master housekeeping sentence, isn't it? A. Well, the fact that the PUD was adopted is -- is -- is a modification of the zoning ordinance of -- for that particular area. Q. And somewhere in that sentence there's a violation here; right? A. Correct, sir. Q. Could you point it out to me one more time? A. The sentence reads, "all development regulations and other applicable provisions of all county ordinances, such as but not limited to all provisions of the Collier County Land Development Codes as may be amended shall apply unless specifically modified by the approved PUD document and PUD master plan." Q. Okay. A. Which -- yes. Q. I'm not understanding, but I'll move on. You read me the sentence again; right? A. You asked me to, sir. Q. I thought I asked you to explain to me how it applies in this case. A. If there is not a PUD amendment, then the zoning regulations for the master plan, whatever it would call for that particular area, would have to be adhered to when one develops that area, whatever regulations are in place for that particular here about today? of the PUD, the approved PUD master to be done within that PUD were not this correctly, but isn't apply or what provisions of apply unless modified by an plan? This is some sort the of Page 74 July 25, 1996 subdivision. Q. This doesn't say that if it's not in a PUD, you've got to look at what's allowed in A.S.T. Is this how we're supposed to get that message? A. If it's not changed by a PUD, then you would, of course, have to look at what would normally be allowed in that particular area before the zoning took place. Q. Okay. Let's look at 2.2.20.2.3, unified control. All land included for the purpose of development within the PUD district shall be owned or under the control of the applicant for such zoning designation, comma, whether that applicant be an individual partnership, corporation or group of individuals, partnerships or corporations. Is the land that we're talking about that the guardhouse is on included for purposes of development within the PUD district? That's the point; right? We're going to look at the PUD to decide whether this thing can be there or not? A. Is it included? It is not, sir. Q. Okay. Then does that first sentence have any application whatsoever to the claim we're here about today? A. Yes, sir. Q. Okay. How does that apply? A. In that the land on which the guardhouse or gatehouse is situated on is outside of the PUD. Q. This sentence says, "All land included for purposes of development within the PUD district shall be," and then it goes on. And you're telling me we're not talking about land that's included for purposes of development within the PUD district; right? A. What I'm trying to explain is that the lands under 2.2.20.2.3 must be owned and maintained by the people that own it in order to develop it. Q. Oh. And what's the problem with that? Is there an ownership problem with where the guardhouse is? A. They're not granted the allowance to develop it or to maintain it. Q. I'm trying to understand. You've cited us with violating five different sections of the ordinance, and I'm going to ask these folks at the end of the day or whenever we end this -- I'm going to go to them and say, what was the problem with this one, what was the problem with this one, and I'm trying to understand what's the problem with 2.2.20.2.3 which, frankly, looks to me like it says, if you're going to have a PUD, you've got to own or control the land that's in it. Do you read it some other way? A. 2.2.20.2.3 states that all land included for purposes of development within the PUD district shall be owned or under the control of the applicant. Q. Okay. Let's stop. Is the land that we're taking about -- at the time this PUD district was developed, was the land owned or under the control of the applicant? A. The land was not under the control of the applicant, no. Q. Who controlled the land? A. The -- the wording in the use access agreement and easement agreement and some of the verbage in the PUD states that that particular stretch of land, tract R, should be used as a roadway with no stopping of the traffic. It should be free from vehicular Page 75 July 25, 1996 stopping. So, therefore, you're using it in a way and maintaining it in a way it shouldn't be. Q. And this says, "All land included for purposes of development within the PUD district shall be owned and under the control of the applicant for such zoning designation." Whoever went for the PUD zoning designation of an area has to own or control all the land that they're going for; right? I can't get your -- what the A. That's correct, and they do not have control of this particular piece of property. Q. They don't? I thought you said they owned it? A. It is on there -- yes, they are on the deed as owners. Q. Okay. Well, let me just ask you who was the applicant in this case. A. The applicant on the permit? Q. No, the applicant we're talking about in 2.2.20.2.3. The second sentence, "Owned or under the control of the applicant for such zoning designation." Who applied for PUD zoning designation? A. That would be Lely Barefoot Beach Property Owners, I would imagine. Q. You think Lely Barefoot Beach Property Owners Association petitioned the Collier County Commission to zone their neighborhood PUD before it was built? A. I have no opinion on that, sir. Q. Doesn't that mean the developer -- look, developer, if you're going to make a PUD, you need to own or control all the land. Isn't that what that's about? A. Correct. You have to own and control the land that you're going to be developing. Q. SO this isn't even an issue in this case? A. I believe it is. Q. Okay. Well, let's look to the next sentence. "The applicant shall present competent substantial evidence of the unified control of the entire area within the proposed PUD district and shall state agreement that if he proceeds with the proposed development, he will," and then there's a colon. Any problem with that sentence in terms of this violation? A. No, sir. Q. Okay. And then there's colon after that, "do so in accordance with A,B,C,D," and then there's -- there are four things. Has anybody stated agreement that if he proceeds with the proposed development he will do those things that are listed in No. I? A. Could you repeat that, please. Q. Sure. Let me just make it an easier question. A. No, you can repeat the same question I'm sure. Q. I'm asking you whether in the application for the Lely Barefoot Beach PUD, whoever the applicant was, was there any problem with that applicant stating agreement that if he proceeds with the proposed development, he will do the things that are in No.1? A. No. That would be expected of him, sir. Q. Okay. So is there any applicability whatsoever to the sentence that starts, "the applicant shall present competent substantial evidence," runs through the colon -- he will, colon, one, "do so in accordance with A, B, C, D"? Any of that a problem that Page 76 July 25, 1996 we're here about t9day? A. Yes, sir. Q. Okay. What? A. Do so in accordance with the PUD master plan of development officially adopted for the district. Q. SO did somebody fail to state their agreement that they would do so in accordance with this? Doesn't this say you have to agree to do these things? Did somebody fail to agree to that? A. The failure was in doing something that was not called for within the PUD. Q. But it's not in failing to agree, is it? A. I believe it. is, sir. Q. Okay. Let's look at sub 2. We're still talking about this applicant who you think is the Barefoot Beach Property Owners Association, right, that you think they applied for the PUD at this property? A. I'm not positive who applied for the PUD. Q. You think it might have been a developer? A. Perhaps, sir. Q. You think it might have been Lely Development Corporation? A. Yes, sir. Q. How come you didn't cite Lely Development Corporation for this violation? Doesn't this apply to developers and the rules and regulations and the things they have to go through to get a PUD, 2.2.20.2.3? Isn't that what that's about? A. It is in part, and it doesn't stop there. It continues it applies to the people that are responsible for those properties well after the developer leaves. Q. Okay. Let's move on. I think we're at the final one. 2.2.20.3.8, which, I think, is titled common open spaces or common facilities. Will you agree with me that when there is a title to a section that the whole section is talking about that title? Is this section talking about common open spaces or common facilities of the Lely Barefoot Beach PUD? A. Yes, sir. Q. What are common open spaces and common facilities in a PUD? A. Those areas that are utilized by the general population. Q. Okay. Like the roads? A. That's correct. Q. Okay. Now, it says that -- let's just focus on the road, because the road seems to be a problem. "Any common open space and common facilities" -- okay, the road -- "established by an adopted master plan for PUD district subject to the following." Any problem with item No.1, as far as you know? Did the PUD provide for and establish an organization for the ownership and maintenance of any common open space and/or common facilities? "And such organization shall not be dissolved nor shall it dispose of any common open space or common facilities by sale or otherwise except to a organization conceived and established to own and maintain the common open space or common facilities. However, the conditions of transfer shall conform to the adopted PUD master plan." As far as you know, did the PUD fail to provide for and establish an Page 77 July 25, 1996 organization to do those things? A. No. I believe they did provide for an organization. Q. SO is there any problem with 2.2.20.3.8, sub-paragraph I? A. It states conceived and established to own and maintain the common facilities. Maintenance is a question. Q. What's the question about maintenance? A. It's not maintained in the manner that was prescribed in the PUD. Q. Inspector Mazzone, isn't this talking about when they make a PUD you have to have some kind of organization set up to cut the lawn and clean the pool or whatever other common facilities you have, paint the building? Isn't that what this is about? A. In part, I'm sure. Q. SO there is a problem with sub 1; right? A. Are you making that a statement of fact? Q. I'm asking. Your testimony is, after reading this thoroughly and going through line by line where it talks about maintenance of the common open spaces, that is there's a maintenance problem with the Barefoot Beach guardhouse? A. That's correct, sir. Q. Paint peeling? A. No, sir. It's location. Q. Roof leaking? A. No. It's located in the road, sir. Q. How is that a maintenance problem? A. The road is not maintained in the manner in which it was intended. Q. Let's look at sub-paragraph 2. "In the event that the organization established to own and maintain common open space or common facilities or any successor organization shall at any time after the establishment of the PUD fail to meet conditions in accordance with the adopted PUD master plan of development, the development services director may serve written notice upon such organization and/or the owners or residents of that planned unit development and hold a public hearing." Does that apply, that first sentence? A. Yes, sir. Q. Who's the development services director? A. I would imagine Linda Sullivan. I'm sorry. Vince Cautero. Q. Has Vince Cautero served any written notice upon whatever organization this is or the owners or residents of the planned unit development? A. When the -- the term is used -- his designee can also serve this. This came from Mr. Cautero's office. Q. This came from who's office? A. From his office. Q~ His. I didn't here the name. A. Mr. Cautero's office. He is our administrator. Q. SO Mr. Cautero is who told you to issue this notice of violation? A. No, sir. He wasn't even there at that time. At that time, as I said, it was Mr. Clark, I believe. He was acting Page 78 July 25, 1996 administrator. Q. Acting development services director? A. I think he was both, sir, at that time. Q. And where is the written notice that he served upon the organization and/or owners and residents? Is that -- A. That would be your notice of violation stipulation form. Q. That's what this means. Okay. So you think that the existence of the Lely Barefoot Beach guardhouse is a maintenance deficiency? A. I believe that's a violation of what the roadway was intended for, sir, as being maintained in a manner that was not prescribed in the PUD. Q. Okay. Well, let's look at the next sentence. "If deficiencies of maintenance are not corrected within 30 days after such notice and hearing, the development services director shall call upon any public or private agency to maintain the common open space for a period of one year." Is Collier County getting ready to maintain the guardhouse at Lely Barefoot Beach for the next year? A. I have no idea, sir. Q. You plan to propose that they do? A. I don't make such proposals. Q. Would you agree with me that 2.2.20.3.8 says that don't do what the development services director says, that development services director's going to take over for the A. I'm saying that the development services director options that are beyond my scope of performance here. Q. Okay. And I'll ask you again. Doesn't it seem to you like this whole section, common open space and common facilities, is talking about if the property owners association in some sort of PUD doesn't mow the lawn we -- we being Collier County -- will? A. We have ordinances that are specific to lawn mowing, sir. No. Q. Okay. Well, let's just look at the last sentence of two there. "When the development services director determines that the subject organization is not prepared or able to maintain the common open space or common facilities, such public or private agency shall continue maintenance for yearly periods." Does that mean that not only will the development services director maintain our guardhouse for the next year but he might do it for all years to come? A. You're the lawyer, sir, but my humble interpretation of that would mean that if one is not able to maintain a common area in a way or in a manner that would be expected of them by the county, the county would have to step in, perhaps, to assist in the maintenance. Q. Good. Let's look at No.3. "The cost of such maintenance by such agency shall be assessed proportionately against the properties within the PUD that have a right of enjoYment of the common open spaces or common facilities and shall become a lien on said properties." Does that apply here? A. I would hope not, sir. Q. SO you're not going to charge us for maintaining this guardhouse? A. That is not my function. Q. Good. I think 2.7.3.3 is the final section of the ordinance that you've cited us for violating. Would you turn to that if we the next has year? Page 79 July 25, 1996 section. A. Yes, sir. Q. Okay. First sentence, "If approved by the Board of County Commissioners, the master plan for development and all other information and materials formally submitted with the petition shall be considered and adopted as an amendment to the zoning code and shall become the standards of development for the subject PUD." Has that, in fact, happened? A. No, sir. Q. Did the Board of County Commissioners approve a PUD for Lely Barefoot Beach? A. Yes, sir. Q. Okay. So the first phrase, "If approved by the Board of County Commissioners," that's happened; right? A. Yes, sir. Q. Okay. The next phrase, "The master plan for development and all other information and materials formally submitted with the petition shall be considered and adopted as an amendment to the zoning code," has that happened? A. Yes, sir. Q. Okay. "And shall become the standards of development for the subject PUD," has that happened? A. No, sir. Q. Are you telling me that the master plan of development for the Lely Barefoot Beach PUD, the ordinance, is not the standard of development for the subject PUD? A. No, sir. I'm saying that it is the standard development for the PUD, but it was not adhered to. Q. Do you see the words adhered to or anything like that in that sentence? A. No . Q. Okay. How does that sentence apply? A. I'm not as gifted as you are with words, perhaps, but it does say, "Shall be considered and adopted as amendment to the zoning code and shall become the standard of development." It has not become -- the standard of development has been violated. The standard development as described in the PUD is not one that we're looking at today. We're looking at something other than what was prescribed in that PUD. Q. Doesn't this mean when you zone something PUD instead of looking at the rest of the Collier County Land Development Code, we're going to look at the PUD document to see what you're allowed to do? A. Yes, sir. Q. That's what this means; right? A. Yes. Q. And that's what you're saying. We're looking at the Barefoot Beach PUD document to determine what you're allowed to do on this land that you say is zoned agricultural special treatment? A. Those are your words, sir. Q. Okay. Then you got to tell me what it is we're doing looking at the PUD document. You say that's the operative document; right? A. Q. That's correct. But you say the land is zoned agricultural special Page 80 July 25, 1996 treatment; right? A. That particular stretch of road is, yes. The road runs the full length of the PUD. Q. But the PUD applies to it? A. That's correct, sir. Q. Okay. How does the PUD apply to it? A. It's described in the deed as being on tract R in unit 1, Lely Barefoot Beach. Q. SO unit 1 on Lely Barefoot Beach is part of the PUD? A. Yes, sir. Q. Okay. Any problem with that last sentence in the first paragraph, "Thenceforth, development in the area delineated as the PUD district on the official zoning atlas shall proceed only in accordance with the adopted development regulations and PUD master plan for said PUD district"? A. Am I just proving what it's saying? Q. No. I'm asking you if there's any problem applicable to these proceedings today that is covered by that sentence? A. Yes, sir. Q. What's the problem? A. The obvious one of the adopted development regulations were not followed, sir. Q. Okay. How about the second paragraph of 2.7.3.3? Would you read that? You can just read it to yourself and perhaps tell me whether or not it applies in this case. A. In what way, sir? Q. That's what I'm asking you. In what way does that paragraph apply to the proceedings we're here for today? A. I believe that the PUD does not comply with all sections of Collier County subdivision regulations and site development plan regulations. That's what it appears to be to myself, sir. Q. Okay. So that paragraph is it. We're violating that? A. Yes, sir. Q. I'm just -- I'm going through taking notes, and I'm writing in or out. A. Okay. Q. I'm writing in. Okay. What's the date of this Collier County Land Development Code that we've been talking about? A. I don't have the entire code in front of me, 91-102 amended the -- Q. 91-102 amended? Would that indicate to you that the language we've been reading from today came from 1991? A. Yes, the most current amendment. Q. Most current and up-to-date amendment of the Land Development Code for Collier County? A. Correct, sir. Q. 1991. When was the PUD for Lely Barefoot Beach established again? A. That would have been in '77. Q. 1977? A. Pardon? Q. 1977? A. Yes, sir. Q. How does this regulation that was adopted in 1991 apply Page 81 July 25, 1996 to something that went on in 1977? A. The -- the amendments to ordinances take into consideration passed adoptions -- changes of any other regulations that might have taken place in various districts. It's sort of like retroactive. It goes back to the -- this PUD -- these PUD sections apply to what was applicable back in 1977 also. It hasn't changed. Q. SO you're telling me that the rules could be one way in 1977 when you apply for the PUD, and some 15 years or so later the county can change the rules? A. No, sir, they did not change the rules. They're still applicable. Q. If I look at the 1977 version of the Collier County Land Development Code, I'm going to find what we've been reading here today? A. If you read the PUD, you're not going to find the rules. You're going to find a formula or way of how to develop this particular area. Q. I'm talking about reading the land development code. Was there a Land Development Code in Collier County in 1977? A. The Land Development Code is a title that has been taken on. Yes, there was but under another title. It was the ordinance that was in place at that time. Q. And you're telling me that the ordinance that was in place at that time doesn't apply? It's the ordinance that was in place most recently that applies to everything that's gone on here today? A. The 91-102 ordinance has not changed from the '77 ordinance as far as the PUD regulations go. Q. SO you're telling me if I find the 1977 Collier County Land Development Code, I'm going to find this same language? A. I believe so, sir. Q. Okay. Have you ever seen the 1977 Collier County Land Development Code? A. Yes, sir, I have. Q. Okay. Have you checked to see if the language is the same? A. I believe I did, sir. Q. Okay. There's been a lot of talk today about an easement. And I noticed that Mr. Bryant entered an easement as an exhibit with O.R. book 1291, page 1232 as the site for it. I made a note of it. Is that the easement that you recall? A. Yes, sir. Q. Okay. We have not yet looked at the section of this notice of violation that has verbage as to violation 1 and violation 2, have we? If I look -- you know what I'm talking about? A. That would be -- Q. Violation I? A. -- the attachment? Q. Yes, the attachment. Violation 1 and some verbage. Violation 2 and some verbage. A. Exhibit A? Q. Yes. Mr. Bryant entered as an exhibit an easement recorded at book 1291, page 1232, and you testified that we're violating that; right? Page 82 July 25, 1996 A. Correct. Q. Is there an easement referenced in your notice of violation that we're violating? A. . For the Collier County easement agreement recorded August 26, 1988, O.R. book 1376 is mentioned here. Q. Okay. That's not O.R. book 1291 that's been entered as an exhibit and that you testified earlier we're violating, is it? A. No, sir, it's not. Q. And how come it doesn't say O.R. book 1291, page 1232 there? A. I don't know, sir. Q. All right. Let me just -- let me just make sure I understand. Isn't the purposes of this notice of violation that you and I have been talking about for hours now to put my clients on alert to what the problem is? Is that a fair way to phrase it? A. That's correct, sir. Q. Okay. And are you aware that's required by the United States Constitution? MR. BRYANT: That calls for a legal conclusion. MR. HAZZARD: Okay. That's fine. Q. If I represented to you that the United States Constitution says you need notice and an opportunity to be heard, to have due process, does that sound familiar or would you say that's probably right? A. That sounds -- MR. BRYANT: It calls for a conclusion. Q. Well, do they have a copy of the united States Constitution over there where you work at Horseshoe Drive? A. Not to my knowledge, sir. Q. Okay. Let me ask you this question then. Did we have any notice before you sat down here to testify today -- my clients that there's any problem regarding an easement recorded at O.R. book 1291, page 1232? A. That was not stated on this particular form. Q. Okay. So the first time my clients heard that there's any problem with that easement is when we walked in the door here this morning? MR. BRYANT: Objection. Calls for a conclusion. A. No, sir. Q. No? Inspector Mazzone, I think your answer was no. When did you alert my clients that there is a problem with the easement recorded at 1291, page 1232 that we're going to talk about here today in front of the Code Enforcement Board? A. I made no notification of that. Q. You've not notified us that that was going to be discussed here at all today, have you? A. I personally have not, no. Q. Has anybody to your knowledge in Collier County advised us that that was going to be discussed here today? A. I don't know, sir. Q. Isn't this the document that says what we're going to discuss here today? A. I think it's one of the documents, yes, sir. Q. Which other documents say what we're going to discuss Page 83 July 25, 1996 here today? A. The permit, the PUD document. Q. Is it your understanding that you can easement, tell us we're violating it, and come and say, no, it's this other easement? That's You can do that? A. That's not my understanding, no. Q. This is wrong, isn't it? A. No, sir. MR. HAZZARD: Inspector. MR. BRYANT: May it please the board. Obviously it's now past three o'clock. There's no way I can go through my redirect with Mr. Mazzone in the next five minutes, and I appreciate Mr. Allen and the board's calendar. CHAIRPERSON RAWSON: unable to -- MR. BRYANT: there's no time. CHAIRPERSON RAWSON: The board has been advised that this room is available on Tuesday the 30th, and I've been advised by these board members that are here today -- and I need all of them obviously -- that they are available on Tuesday the 30th. Did you find out, Mr. Hazzard, if you're available on Tuesday the 30th? MR. HAZZARD: I am available, but I have not been able to verify whether all my witnesses are available. I have verified that one of my key witnesses is unavailable. CHAIRPERSON RAWSON: It's my understanding if we don't do this the 30th, it's a long time off. MS. SULLIVAN: The only reason we get the 30th is because the board's on vacation. CHAIRPERSON RAWSON: It would be a month or so. MS. SULLIVAN: Yes. MR. HAZZARD: I feel so strongly about the witness who can't be here -- he was going to be the witness who I would very much like to have in front of this board. CHAIRPERSON RAWSON: I understand, and you know -- although the county has not yet rested, and we're going to get back to redirect with Mr. Mazzone when we get convened again. Do the respective attorneys have any hopes that we are going to complete this hearing in the one day? MR. BRYANT: I have no idea, Madam Chairman. I know I probably have at least 2 1/2 to 3 hours left. CHAIRPERSON RAWSON: And you, Mr. Hazzard? MR. HAZZARD: I know that I have between seven and nine witnesses to present. And as you know, the rules that we operate under in front of this board I have no idea who Mr. Bryant's witnesses are; he has no idea who my witnesses are. So I'm unable to estimate how much time I'll need to cross-examination the unknown witnesses. CHAIRPERSON RAWSON: The reason I ask that question is because if it appears that we won't complete the testimony on the 30th, would it be your desire to have Mr. Bryant complete the county's case and you start your case on the 30th and go as far as we can knowing that you may have to come back another day with that witness? reference one in here to this hearing your understanding? I don't have any further questions, Did you have a witness that was I'm going to bring him back, because Page 84 July 25, 1996 MR. HAZZARD: Mr. Bryant just suggested that we try to set this for two days in a row, get it all done and finish it. Frankly, that sounds good to me. MR. BRYANT: I would concur on that, Madam Chairman. I hate for us to keep bifurcating it. CHAIRPERSON RAWSON: I do, too. Well, Miss Sullivan, do you have any other dates later on? MS. SULLIVAN: They were so far in advance, I was hoping we could find a match here before I went back, but I can do that. Do you want me to go back and try to find the first two dates -- CHAIRPERSON RAWSON: Let me ask you this. There are only four of us and, obviously, we need all of us here. It's obviously going to be a month or so before we convene this hearing again. Assuming the court reporter had time to transcribe what's happened here today -- I've taken copious notes, but will there be any objection from either one of the attorneys to having that done and giving these four board members the opportunity to review the transcript of what's gone on here today before the next hearing. Would you feel good about that if we -- MR. HAZZARD: I would certainly welcome you to do that. MR. BRYANT: That would be a good idea. CHAIRPERSON RAWSON: Knowing that it's probably going to be quite a ways down the line, can you do that? It's probably better that you transcribe your notes than I transcribe mine. Well, why don't we take a stretch break here for an minute knowing that Mr. Allen has a plane to catch and see if we can't find another date or two days in a row. We'll take like a three-minute recess. (A short break was held.) CHAIRPERSON RAWSON: The Code Enforcement Board would like to go back on the record. The Board of County Commissioners versus Lely Barefoot Beach Property OWners Association, Inc., and Lely Barefoot Beach Masters Association, Inc., CEB No. 96-102 will be continued until October 30th at 8:30, and we will also hold the date of Thursday, October 31st at 8:30 hopefully to wrap this matter up. There should be no further notice required since it's a continuation of an ongoing matter. So I'll see these four board members and the attorneys -- parties present today on October 30th at 8:30. The regular scheduled Code Enforcement Board meeting, however, will be August the 22nd when I hope I have a full contingency of seven. Any other business to come before this board today? MR. BRYANT: Nothing from the county, Madam Chairman. MR. HAZZARD: Nothing from me. CHAIRPERSON RAWSON: In that case the board meeting is adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 3:36 p.m. CODE ENFORCEMENT BOARD Page 85 July 25, 1996 (J/l JEAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Melissa Milligan Page 86