Backup Docs 06/15/2011 (CR)
Agenda Item #
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Office of the County Attorney
Jeffrey A. Klatzkow
Rc:CciVtl)
JUN 0 9 2011
hm:rG ~)i C')Ullh _"u;!H"f)i3SI011ei~
Deputy County Attorney' Scott R. Teach
Section Chiefs. Heidi F. Ashton-Cicko* ,Tacqueline W. Hubbard'"" .Board Cenifjed City. ('oullty and Loc.al Government Law I~ I J
Assistant County Attorneys. Colleen M. Greene Jennifer B. White Steven T. Williams Jeff E. Wright L1 r-r
VIA EMAIL
.. ~ l " ! .. ~ ,"
~',--'i\ ;>'t(:~n.,-" '~
June 9, 2011
Margaret L. Cooper, Esq,
Jones, Foster, Johnston & Stubbs, P,A,
505 So. Flagler Dr., Suite 1100
West Palm Beach, FL 33402-3475
mcooper@iones-foster.com
Cc.vw Y'1' :)~i0"'U C:~mNl.e.0.. ,).
i\C!enda Item ,,____ __ tvleetmg Date&j.1'il-t1-
P;:'sentcd B,' - 8eQCCr-'CtJ-h L\e.s----
RE: Collier County v. Jerry Blocker, et al., Case No. 09-1281-CA
Jerry Blocker, et aL, v. Collier County, Case No. 08-9355-CA
May 3, 2011 Public Records Request - June 8, 2011 Correspondence to
Board of County Commissioners [Represented by Counsel)
Executive Predicate:
THE BLOCKERS MOBILE HOME PARK IS HISTORICALLY AN ILLEGAL
NON-CONFORMING USE. PRIOR TO 1972 IT WAS ZONED "LIGHT
INDUSTRIAL." AFTER 1972 IT WAS CHANGED TO INDUSTRIAL. IT HAS
NEVER BEEN ZONED "RESIDENDIAL" OR "MOBILE HOME PARK."
ALTHOUGH THE COUNTY'S POSITION IS THAT THE 1952 MAP HAS NO
EVIDENTIARY VALUE, THE ALLEGED 1952 MAP IN CONTENTION HAS
THE BLOCKER PROPERTY ON ALACHUA STREET, [THE PROPERTY
INVOLVED IN THE LITIGATION}, ZONED "C-3 LIGHT INDUSTRIAL."
THEREFORE, IT CHANGES NOTHING.
Dear Counsel:
As you are undoubtedly aware, there are at least three (3) public records requests for
materials similar to yours. One from Randy Johns, one from Tim Hancock, and another one
from Commissioner Hiller. I am not aware of the status of all of these matters or even if my list
is complete. However, this correspondence is written in response to your letter to our clients on
June 8, 2011.
First, if you believe the alleged 1952 Map or any other evidence exist that amount to
newly discovered evidence that would affect the rulings by Judge Hayes in the Circuit Court and
the affirmance of his decision by the Second District Court of Appeal, then you should proceed
to file an appropriate motion with the Court. Instead you and Attorney Patrick White have
engaged in the questionable practice of approaching represented clients without first obtaining
permission of their Counsel. For your edification, 1 am attaching a recent Ethics Opinion and a
recent Bar Journal Article that indicate quite clearly that this practice of your firm violates the
Professional Ethics of the Florida Bar. I repeat, you do not have our office's permission to speak
directly to our clients while the Blocker litigation is pending.
As you should have been aware, a box of documents relevant to your public records
request has been sitting in my office for at least a couple of weeks. They are and have been
available for your review at any time.
On May 3, 2011, I responded to your request and had my paralegal begin the search for
the e-mails requested. On May 3, 201 J, the public records request was forwarded to the Code
Enforcement Department. On that same day, the Code Enforcement Director Ms. clagg asked
the County's Citizen Liaison, Heather Grimshaw, "Are you handling the public records request
for the Blocker's case?" Ms Grimshaw responded back "The CAO is handling." On May 4,
2011, Ms. Flagg wrote to Marian Colli, in the County Attorney's Office, inquiring "Who in your
office is handling Ms. Cooper's public rccords request?" Ms. Colli responded"... Ms, Ilubbard
informed Ms. Cooper that she would get back to her after Monday on her request." On May 5,
2011, Ms. Colli wrote to Ms. Flagg, asking to ,.... have someone on your staif begin pulling the
requested records...." On May 6, 2011, Ms. Flagg forwarded the request to her assistants and
asked them to "work with Heather Grimshaw" to obtain the requested e-mails. On May 6, 2011,
Ms. Grimshaw notified Ms. Flagg that the County Attorney's Paralegal is conducting the e-mail
search. The e-mail request is quite burdensome and encompasses:
All e-mails, memos, or other intra staff; communications by and between Code
Enforcement Board and staff, or Board of County Commission as other Board level
persons concerning the Shell Trailer Park property in any respect including SIP
availability, zoning change, code enfiJ/'cement, or GMP changes.
To my knowledge, the e-mail search has just been reeently eompleted and over 4,000 e-mails
were found. Of the 4,000 e-mails reviewed, 2,000 were found to be relevant. Ms. Colli is
currently compiling the Privilege Log. Additionally, you could have easily called our office to
determine thc status of your request.
I will respond to each of your allegations made to our clients in correspondingly numbered order.
1. 2006 Blocker Request and County Withholding Evidence of Old Codes:
Both parties in the litigation used old Counly ('odes thai went hack asfar as 1965.
2. 2007 Patrick White's Request and County Again Withholding Evidence of 1952
Map and 1951 Codc
During the litigation, the County personnel involved in the Code Enforcement Hearing were
unaware of the existence o/any authenticated. reliahle, certified 1952 Map. The County's
position is two-fclld:
a. County stalfhad no knowledge olit: and
h. Even ifstaf/had knowledge ofil. it would nol have made any difference
in the outcome ofthe litigation hecause it still did nol permit a Mobile Home
Park
Additionally. Patrick White testified at Ihe November 29, 2007 Code Enforcement Hearing. that
he and Mr. Blocker "previously had a copy ofa map that although dated 1952, we couldn't tell
you when it was aClually effective. "
3. Early May, 2011 Margaret Cooper's Request - Stonewalled by County Attorney's
Office:
You may come at any time to view Ihe documents we have pursuant to your request.
2
4. Mid-May 2011 Blocker and ,Johns' Request - Houldsworth Production - Code
Enforcement Staff Removal of Evidence:
No one removed the alleged i952 Map prior to Mr. Johns making his copies or discovery of this
map by Mr. Johns. Mr. Snow did not remove any documentsjYom an official records room nor
has he ever removed any recordsjrom any ofjicial repository without proper permission. Such
an accusation is highly ofJensive and grossly untrue. Further. the i952 Map has not been
registered or certified in any form. There is no evidence at this time that any written regulations
existed prior to i 959. The authority to grant zoning applications to land did not exist until i 957
by ordinance within Collier County. The i 952 map was located in a cubical where several old
zoning maps existed and was not discovered unlil after it was discovered by Mr. James Seabasty.
S. Prior Misinterpretation by Susan Istenes
There are a series of communications between Patrick White and Susan istenes in which Ms.
Istenes asked Mr. White to request an "Official interpretation" regarding the prior zoning status
of the Blocker property. Although M~. istenes was of the opinion the property was an "illegal
non-conforming use, "she never rendered an "Official Interpretation" because Mr. White never
askedfor one. All historical documentsfound thuslar show the Blocker property to have been
zoned, at best "C-3 Light industrial"
6. Blocker's Attempts to Get SIP
In December 3, 2007, the Blocker appeals olthe Code Enforcement Orders were in litigation.
Anything relevant should have been brought to the Court's allention, not to our clients.
Attached is a spread-sheet prepared by Code Enforcement that shows the Blocker Property on
Alachua Street appears to be the only one that is located in an industrial zoned area. !/legal
Nonconforming uses are not eligible for an SiP. The property would need to be rezoned Mr.
Blocker, thus far, has refused to re-zone the property.
7. Public Document Request of Evidence of Similarly Situated Parks.
See above response. County stafl has done extensive research and have notfound any other
illegal non-conforming Mobile Home Park.
Unfortunately, your letter contains nothing new. As you know the argument that the
Blocker property is a Trailer Camp, not a Mobile Home Park, has been litigated before the Code
Enforcement Board, Judge Hayes, and the Special Magistrate and all three agreed that it was a
"Mobile Home Park" not a "Trailer Camp."
ii rel~~oy.rs, ~~J
c~ine~
tigation Section Chief
achments
cc: Collier County Board of County Commissioners
Jeffrey A. Klatzkow, County Attorney
Leo Ochs, County Manager
Diane Flagg, Director, Code Enforcement
Patrick White, Esq.
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CiTY, COUNTY AND LOCAL
GOVERNMENT LAW
"'~~-'''''"''''''~.'''''''''''''-'''-''''''''_'"''__''''-___~''-'''\A
,
by Marion J Radson
When Can a Lawyer COlnmunicate With Your Client?
On Decemuer 10, 2010, The
Florida Bar Board of Bar
Governors unanimously
approverl Ethics Opinion
09-1. The opininn concll1des that a
lawyer may not communicatt' with
government officers, directors, or
employees who are directlyinvolvecJ
or whose acts can be imputed to U1(,
government entity in a represented
matter about the subject matter oftbe
representation. To fuJ1y llndershl1lrl
the opinion, this article addresses thp
events leading up to th(~ adopt.ion of
this opinion, reV18WS previous opil1
ions that. form the basis for Opjnlon
09-1, and discusses the applicabo;l o(
the no contact rule for all attorneys
Events Leading to Opinion 09-1
A law firm regularly n~presented
clients before a state agency known
as the Office of Financial Regulation
COFR)1 An attorney from the finn
contacterl employees of OFR to uh-
iain information and, in some cases,
statements to be userlin potential
administrative proceedillgs and litig.1.-
tion against the agency. OFR's general
couDsel, in conjunction wIth the divl-
sion director, informed the attornt:~y
that all commumcatiol1s wIth OFF{
employees must be made through the
agency's genF~r,q] counDC]
The attorm:y initially sought :-i
staff opmion from The Florida Bar's
ethics notJine. After being informed
that communications must be made
throug}] OFR's general counsel on
represented Tnatters, the attorne.y
sought an informal Florida Ben .staff
Opini(Jn.2
Florida Bar EthICS ~taff issued
Opinwfl 28]9:3 on Ju).)! 15,2008. TbR
8.1 THE FLORIDA BAR ,JOUHNALJJUN[ 2011
staff opinion concluded that H.ule
44.2 prohibited the attorney from
communicating with OFR employees
"woo arc in a managc.ril]l position or
whose [lct (If omission m connection
with the (represented) maLLeI' mdY be
imputed to tlw agel1cy or entity, unless
t.he agenc.'l':'; ~1t.t:orIlE~Y Cflnsellts J,o t.hl'
COlll m U Ii ica LjOl'j."
Toe al,tomey sought rccul1sirlr:ration
urthe ~:tarfopinion by the Professional
Ethics Committee. The Professional
Ethics Committ.ee, throl1gh a sunconl
mittee, dr.)veloped a ditTerent opiniOn.
A.'i requin:d hy the rllt(~:'i ofThro Fl(lrida
BaT, notice IV,lS published soliciting
comments on this propoE;ed opinion
In Jm,uilT\' 20l U, t.he coJnmit.tee, nt'Ll'r
lWcH"ing ilrt;-llmcntc, ()!l hoth sides of
the i~:i.';m" hut. particularIy "1 upposi- ,',
Lio[l fron, !"l'pn~.5ent.Qtivps nft.he C1t.y.
County ;1no fA)('al Government Law
Serti(w, the GoverTiment Lnvyers
Sectio!', ~iLd the Flor'idi'l Association
of County Att.orne.y:;, approved the
npin10n by,] \'ot(. of J5 j 1,:'
Formal app(~,ds to the Board of
C'overnors Wl're filed by OF'l{, the City,
County and Loeal Government Law
Section, and the Florida Association
of C()llnty Atturneys (appellants). Tn
~:;(:cordance with the board's rules, the
Bo;:mJ Review Committee lIrst heard
the appeal and ronde ,9 rermnmenda-
bon to the Hoard ofc;o'.'ernur's in the
interim, the appelhlnts worked wlth
Bar staff t.o reVise the opiniun to ad-
dress specific objections, With oOe px-
coption not.ed below, the Board Review
Committee recom.rnended {ipproval of
Uw I"pvlsed nfJlnion. Tfw B(I:~nJ (,{"Gov
f'J"noJ"S, at iLs :n8dlngC'Il lkcemher J 0,
20]0, voted u-n:mirnousl) 1-0 <JppnlVE
()rJ]T![on 091
Opinion 09-1 Involves the
Application of Rule 4-4.2
The fundamental principle underly-
ing Rule 4-4.2 "Communication with
Person Represented by Counsel," com-
monly known as the "no contact rule,"
is that a lawyer may not communicate
with a represented person without
tbe consent or t.he ot.her person's
bwyer. Thf: rabonale behind the 1'nle
i.s t,o prevent interference with the
attorney.client relationship and to
prevent a Jawyer from persuading
" represented person to act or make
disrlosures contrary to the person's
int.erests.4
The rulf:'s prohibition applies
when two elements are met: 1) The
communication relates Lo the subject
matter of the representation; and
2) the lawyer has knowledge of the
representation. Knowledge of the
representation may be inferred from
the circumstances. An exception to
the prohibition permits an attorney to
communicate with another attorney's
client "to rnect the requirements of
any court rule, statute or contrad
requiring notice or service nfprocess
directly on an adverse party."5 In these
instances, contact is permitted, and a
copy must be provided to the adverse
party's attorney.
The application of the rule be-
comes complex in an organizational
setting. Does the prohibition apply
to every officer, employee, or agent of
the organization? If the organization
ret.ains full.time in-house counsel,
d.ocs the rule prohibit a1l commu-
nications on aU matters? Can the
in. house counsel bar all communica-
tIOns wit.h all llfficers cmd employees
uJ' the organjzatiol1~(
The application ofthe rule becomes
even more complex in the government
context. Florida's broad Government-
in-the-SuDshine Law and expansive
Public Records Law add additional
layers of inquiry above those inher-
ent in an organizational setting. Does
a lawyer have the right to addl'ess a
public body;"in a public meeting re-
garding a represented matter? Can a
lawyer request public records directly
from a public employee regarding a
represented matter? Can a lawyer
contact a government official to seek
redress of a client's claim or grievance
before the government? These issues
have been the topic of heated debate
in Florida and around the country.
When Does the Prohibition
Begin?
When does Rule 4-4.2 apply to
prohibit communications with a
represented person? Is it necessary
for litigation or an administrative
process to commence? The simple
answer is no. The rule applies when
the attorney-client relationship 1S
established.
In Florida Ethics Opinion 78-4,
which is ci ted for other purposes in
Opinion 09-1, the Ethics Committee
unanimously concluded that the rule
applies whenever the attorney-client
relationship is established in regard
to a particular matter.6 Opinion 09-1
extends the prohibition to" . .matters
on which litigation has not yet com-
menced, as well as to specific trans-
actional or non-litigation matters on
which the agency's lawyer is providing
representation."
To Whom Does the Prohibition
Apply in the Corporate or
Government Context?
Florida Ethics Opinion 09-1 ad-
dresses to whom the prohibition
applies in the government context.
Opinion 09-1 relies on the conclusions
reached in previolls Florida ethics
Op1nlOns.
In Florida Ethics Opinion 78-4, the
committee concluded that prohibited
communications extend to "officers,
directors or managing agents" of a
private corporation. The commit.-
tee did not extend the rule to other
E:mployees "unless they have been
directly involved in the incident or
matter giving rise to the investigation
or litigation."
In a later Florida Ethics Opinion,
87-2, the commit.tee applied the guide-
lines of Opinion 78-4 to government.
entities, extending the communica-
tion bar to any government employee
whose acts or omissions in connection
with the matter can be imputed to the
government. The committee declined
to treat government entities differ-
ently from private entities despite
public policy argumen ts based on the
government's responsibility to the
public at large.
Opinion 09-1 concludes that an
attorney must obtain the consent of
the government lawyer prior to com-
municatjngwith a government officer,
director, or manager, as well as em-
ployees who are directly involved in
the matter, The bar extends to public
officials or employees whose acts or
omissions may be imput.ed to the stat.e
agency.
Must a Communicating
Attorney Know the Perso n is
Represented?
The application of Rule 4-4.2 pre-
supposes that the attorney "knows"
that the person is represented. 'The
word "knows" is defined in the termi-
nology section of the rules as "actual
knowledge of tbe fact in question.
However, a person's kIlowledge may
be inferred from circumstances."7
Opinion 09-1 permits an att.orney
to communicate with government
employees on "speciJic matters" that
the attorney knows have not been
referred to or handled by the gov-
ernment attorney In that instance,
Opinion 09-1 instructs an attorney
to apply Rule 4.4..3 "Dealing with
Unrepresented Persons."B
(a) In dealing on behalf of a client with a
person who is not represented by counsel,
a lawyer shall not state or imply that the
lawyer is disinterested. When the lawyer
knows or reasonably should know that the
unrepresented person misunderstands the
lawyer's role in the matter, the lawyer shall
make reasonable efforts to correct the mis-
understanding. The lawyer shall not give
legal advice to an ur.represented person,
other than the advice t.o secure counsel
In the government context, Opinion
09-1 concludes that if the attorney
does not know whet.her the public of-
ficial or employee is represented in t.he
matter, the attorney "should inquire
whether the person is represented
in t.he matter" and may be required
to "identify himself or herself to the
public official or employee as a lawyer
representing a client."
The summary of Opinion 09..1 in-
cludes cautionary language t.hat the
right to communicate directly with
government officers and employees on
matters unrelated to the specific legal
representation must not be used as a
"... vehicle for engaging in communica-
tions that are barred by the rule." Ad-
dit.ionally, the Comment to Rule 4.4.2
provides that a lawyer cannot evade
the requirement of obtaining consent
"by closing eyes to the obvious."
Are Communications Prohibited
Because the Entity Retains
General Counsel?
The dif1icult issue at t.he crux of
Opinion 09-1 is whether the exis-
tence of general counsel aets to bar
all communications with govern-
ment employees whose acts can bind
the governmental enbty. This issue
is addressed in Opinion 09-1 as to
government entities, and as to all
other organizations in earlier ethics
opinions.
Rule 4-4.2 states: "In representing a
.', client, a lawyer shall not communicate
about the subject of the representa"
tion" (emphasis added). The comment
clarifies the restriction: "This rule
does not prohibit communication with
a represented person, or an employee
or agent of such a person, concerning
matters outside the representation"
(emphasis added).
Opinion 09-1 reaffirms the ability
of a lawyer to communicate "with rep-
resented persons, including protected
(government) employees, on matters
other than specific matters for which
t.he (government) lawyer is providing
representation...." Reference is made
to Florida Ethics Opinion 94-4.
In Opinion 94-4, the Ethics Com-
mittee concluded that an attorney
who, on behalf of a client, filed suit
to coIled a credit card debt could
communicate with a person about
a different matter in litigation. The
individual was represent.ed by legal
THE FLORIDA BAR JOURNAUJUNE 2011 135
counsel in a separate matter, namely
collection vlolations. In that insturHT.
the committee suggested that the at.-
torney notify opposing counsel that
"the attorney intends to deal directly
with the person on the litigation case
only, and that, regarding the collee--
tion violation~ case, the attorney will
limit all communications to the oppos
iog counsel." The committee further
suggested that "[t]he attorney mighl
consider copying the opposing counsel
with the attorney's correspondence
to the person regarding the litigation
case, so that there is no question ai;
to the communications made."
Opinion 09.1 approved the rationale
expressed in Opinion 78-4 that ad-
dressed the application of Rule 4-4,~;
Lo particular persons ill ;1 corporate
context. As previously staten, Ethics
Opinion 78-4 bars direct commllnica
tions with ofhcers, directors, or mall-
aging agent.s who have been d1rcdly
involved in the represented matter, 01.
whose actions may be imputed to the
organization, In these instances, com-
munications must be made through
the general counsel.
Opinion 09-1 acknowledges that the
Ethics Committee deciding Opinion
78-4 "declined to adopt a rule that
wou1d prohibit all contacts with orga-
nizational employees no matter how
removed from the conduct in ques.
tion.'" Thus, a blanket prohibition in
the private sector is not permissible
In regard to government entities, 3
blanket communication b8.r is Jike-
wise Dot supported either in the rule
or under the ethics opinions. Opinion
09-1 concludes that an absolute bar is
not the "intent" (lfthe rule.
What Is the Scope of "Permitted
Communications" with
Government Entities?
Up until now, the prior quest.ions
asked in Lhi.s article have been all-
swered by etnics oplnions, including
09-1 However, the answer to the
question asked in this section is not
directly answered in any opinion, A
review of the legislati ve history of
the rule and informal opinlOns of Bar
staff provide guidance_ A disCllSSlOl1
necessarily involves the appljcatwfJ
of F']urida's GLJvernment--1IJ.the-,'lufl
shincL,-~w a.nd Public f{rocord.s L.!lW
86 THE f~I_OllIDA EiA.f") .!(JUf-iNAUJUt'J[ )[J)l
Rule 4-4_2, as related t.o this is
SllC, is unique 1.0 Florida. This rule
ddfcrs in one major respect from the
comparable Model Rule 4.2 uf (he
American Bar Association (ABA! and
t.JH~ rules of practically every other
state. ABA Model Rule 4,2 provides.
"[n representing a client, a lawyer
shall not communicate about the
subject matter of t.he representation
. unless the lawyer,. is authoriZf!d to
riD SO by law or court order" (emphclsis
added), Opinions from other jurisrlic-
t.ions interpreting the "authorized by
law" exception conclude that suell
fundamental rights, such as the First
Amendment and the right of citiwns
to redress grievances to Pllblic offi
cJals, may fall under the "authorilcd
hy bw" exception.
B'lorida Bar Rule 4-4.2 does !lot
provHle the "authorized by la\v" pxcep-
tio]]. This exception has been omit.ted
from Florida's rules since the original
adoption of Ill(' Bar'.s vec-,iun of the
Model Hules that became effective in
] 9Wl. No reason appears III COITlllllt-
Lee notes. The f:'lorida Supreme Court
ddopt.ed t.he I'll le as recommended
w1t.houtcomment.9 CJth.er state dhic:co
opinions and court rulings cunsLruiflg
tbe "authorized by law" exception, in.
eluding ABA ethics op;niun~,. are nut
relevant to l,']orida's rule.
ln 2002, a Special Committe!; to
H.eview H.ule 1A.2 was created to Wll
sider adding the "authorized by law"
exception tD the rule. The CUWllllUl'f;
recommended that the rule remalfl
3S written.lLl Of signincHnce, the eorn
mittee recornmended Uw deletion of'
the "authorlzecl by law'. term that.
appeared in t.he commellt. LU the rule, 11
In its plaer;, t.he committee substituted
tbe new term "perrnitted coIllnlunica,.
lions" t.o "resolve the confl1d between
t.he Rule and r.be Cllrrent C;()mment."
The revised comment wa~; adopted by
the Florida Supreme Court.l"
The term "permitted cummuriica
tIOns" generated the debate a!ld con.
Lroversy culminating in the adoption
of Propused ArJvisury Opinion 09-1 by
the Professional Ethics Committee
and t.he ensuing appeal. The Com
ment currently! provides: "rAlla\v:f('f
having inJepE::nJent justification for
colTImul1Jcating \vith the IJther pady
is pcrrnit:tr~d t.u do S(I, Penl:ltL"c! ('I]F1
munications include, for example,
the right of 8 party to a controversy
with a government agency to speak
with government officials about the
111atter"13
Any consideration of what are "per-
mitted communicatiohs" must begin
with the legal effect of the comments
that follow each rule. The preamble
to the rules provides that "ft]hc com-
ments are intended only as guides to
interpretation, whereas the text of
each rule is authoritative."14 Thus, the
comments cannot be used as specific
authority to support or reject proper
condl1ct under the rules.
Under Rule 4-.4_2, there arc specific
:-ll"eas in which an attorney can com.-
nlllnicate with a represented person
without consent, as addressed earlier
in this artic]('. Outside these specific
areas, the "independent justification"
parameters of"pennitted communica-
tions" with goveT11ment official.s and
employees is not. addressed
In Florida, specifiC state statutes
or local ordin;mces or rules may pro-
vid(~ the "indepcmlent justification"
for "pennittccl communications," For
,;xounplc, Florida's Whistle-blower's
Ad may provide an attorney, acting on
behalf of a client, the limited authority
to communicat.e with a government
official t.o disclose wrongdoing. IS Pro-.
,vicling direct. notice of a tort claim to
a govrrnment orAcial is also perrnit-
tpd,16
Some commentators argue that the
constitutional right of free speech and
the right of the people to petition the
guvernment t.o redress grir;vancc~;
provide the right ror an attorney t.o
communicate directly with the gov-
ernment. But no authority translates
these rights as an Qxception to Rule
4-4.2.11
The Open Meetings and Public He~
cords Laws of Florida also pose unique
issues to state aod local governments_18
Neither the rules nor any ethics opin-
ions ciLe these laws as "tndepenrlent
justification" fur an attorney to COln-
municate with a government official or
the governing body in <1 public meeting
in a represented matter. This js ap-
propriat.e because sllcn rnatters are
beyond the scope of the rules and an
ethics opinion Any right would exist
i ndr~pl~nd[:n t of the ru lee;, !9
In the very recent case of Keesler u.
'Community Maritime Park, 32 So. 3d
"6691FIa. 1st DCA 2010), the appellate
"court, citing a 1983 Florida Supreme
:Court decision, made it" clear that
that the public has no general right
'..to speak 8.t public meet.ings.2U If the
~public has no right to speak, then
;; neither wpuld an attorney represent-
ring a client possess such right.
A government may itself invite
,'~lIpermitted communications." It may
.receive public comment 011 certain
:malters under its own procedural
~rules or applicable substantive law.21
'in that instance, the government is
. expressly permitting any person to
address specific matters, including
imatters that may be in litigation. If a
person can address the public officials
at the invitation of the government,
then an attorney representing the
.;. person should be allowed to address
. the government official(s) in a public
, meeting without the consent of the
government attorney. The government
attorney is typically present at these
'. meetings to provide the necessary
safeguards inherent in the rule, Any
concerns of the government can be ad-
dressed by imposing reasonable time,
place, and manner restrictions on the
communication.
As to Florida's Public Records
.: Law," in TEO 91001, the Bar ethics
, staff opinion concluded that when a
, matter is in litigation, an attorney
can only request public records from
the government attorney. Last year,
The Florida Bar Professional Ethics
Committee sought to revisit. this is~
sue and considered issuing a formal
opinion. Proposed Advisory Opin.ion
10-1 was withdrawn and is no longer
under consideration, Therefore, if a
matter is in litigation, an attorney
must request records through the
government attorney,
Opinion 09-1 makes no reference to
"permitted communications."The ap
pellants recommended language that
would instruct attorneys to provide
courtesy notice to government attor-
neys whenever communicating with
government officials and employees
based upon the rationale of a formal
ABA Ethics Opinion.23 However, Opin-
ion 09-1 ami ts such language.
Due to the lack of specific guidance,
an attorney claiming "independent
justification" for an arguable "permit-
ted communication" would exercise
good practice by providing courtesy
notice to government attorneys. Opin-
ion 09-.1 instructs an attorney who
does not know if a public official or
employee is represented in a matter
to ask the government attorney if the
person is represented. In all instances,
. The 'Florida Bar Journal
'C" 'C'."',:'- _.-'. -, .' ",". ' .' .... .
Article Submission Guidelines
j. "",,--.,.,",i:",,,,,,,,,_._,"'" .'..
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Citations: Citations should be consistent with the Uniform System of Citation.
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Unsolicited manuscripts are invited and may be sllbmitted to Editor,
The Florida Bar Journal, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300.
THE FlOF,IDA BAR JOIJRNAlIJUNE 2011 87
the attorney may be required to iden
ti(y himself or herse]fas a lawyer who
is representing a cJient..24
Conclusion
1\11Je 4,4.2 prevents mterference
with the attorney-client relationship
and prevents a lawyer from persuad-
ing a represE,!Jlted person to act Or
make disclosures contrary to the
person's interests. !'~or these reasons,
an attorney needs consent when COln-
municaling with the other lawyer's
client. The rule applies when cormnu
nicating with n private person or an
organizational entity. The communi
cation bar applies to offlcers, manag-
ing agents, and cmplo'ycc~3 who ar(.~
directly involved in the repn,sented
matter. The rule does not support i.l
communication baron 8]] officepi :lI1d
employees simply bec;Juse the entity
retains a genernl rounseJ. The b;3 r Clp
plies to represent.ed matters referred
or handled by t.he general counsel
The same bar applies to communi-
cations with government officials and
employees. Communicat.ions ShOldd
be made through goVeITlIl1ent counsel
on all known represented milttcrs. If
an attorney does not knO\v if a pub!Jc
official or employee is rewcscntedin
a matter, the attorney should a:.ik the
government attorney. In all insL::lllC(:S,
the nttorney maybe required t.o iden
ti(y himself or h(~rself FlS an attoCHey
who is representing 8 chenLU
I OFR is charged with the administration
and enforcement of the Florida Financial
Institutions Codes relating to state-char-
tered banks, credit unions, trust cornp8.
nies, and international bank offices
2 The attorneys in The Florida Bar Eth
ics Department provide infonnai advisory
ethics opinions to members of The Florirb
Har. They provide guidance to attorneys
regarding future, not past action, and are
not considered a substitute for tJH' declsion
uf a court or a grievance cDil1mittc~r~. .':>'('c
The Florida Bar Procedures for Ruiing on
Questions of ~thics, www.fJoridabar.org
J The Professional Ethics Committee
is compo.sed of 41 members. Thf~l"Cfore, '
majority of the full membership did no!
vote to approve the draft opinion. Several
rnemhers who voted Ul the minority asked
to prepare a dissenting opinion, but the
committee declined to enter:ain t}w re
quest
1 See Special CcmmiLtee 1.0 Heview Hull'
4-4.'2 Report to 'I'he .FJorida Board of Hal
Governors, Octoher 25, 2002
88 THE Fl.URID.A BAH JOUflNALlJU~JE 2011
'; Wl:~st's F.S.A. Har 1\ule 'J-4.2(aJ
b The comment to tllP rule support.": t.his
conclusion: "This nJJe applies 1.0 communi-
cations wiLh any person who is reprl':>entcd
by counsel concerning the nwtter to Wllich
t.he communication relates"
7 "Terminology," PrcHmbJe, 94, J{uJes of
Professional Responsibility.
8 The t.erm "(rJeasonably should knnw"
IS also defined in the terminology .section
to mean a lawyer "of reasonable pnldcncp
and competence to ascertain the matt.er in
question."
9 The Code ofProfession,ll Hespon:-;ihilily
was replaced by t.he Rulr's ofP,'uf('ssional
Conduct, effective JanuMY 1, 19B7. Rules
Re[{ulntini) Thp Fia. /3or, 484 .so. 2d 977
iFi:,.), opinion coTl'N:!ed by -'507 So. 2d 1,166
(PLI. l8861. Tn J line 1989, the ProfesslOnill
l~t.J-li('s Committee published a proposed
ethics opinion incorporating the Bdditiollal
AHA language, "or is ~'111t.horiZf!d by L1.w to
do SI)," into the rLJj(~ In H'sponse to com-
meni:.':; from Fluricb Bar memlwJ"s, trI(o
committee, ,It die direction I'f the Board
ofCovernors ofThl' Florirla Bar, narruwed
HII' I:tnguagu and is,'il1('d Oplnion 89 () The
CIJ!lllIlllter; mt.lmlionalJy otT)itted t.he I:!xcep
LUll {"or c:(lmmUniciltiunc; iJuthorized by law
Furthermol"f\ another of tllE' commit.trec.'::;
opinions H'g:nriing the clH1Hnuniciltioll
rlJle, UpiniuIl SlOtl, )"(,Ii,:,s upon PJorid:l's
omission of the "ur is 8utlJUlizcd hy !~HI'''
pxcephon.
10 The committee determined that. the B;n
beld pn~viousJy not ioclnded the ";:llltho
rir.cd by law" exception bec:luse it i,c; !lroan
illld potent jelly delegatr:s the' SUpn'JlH'
(~()llrt's ,JuLhnrity to rpE;l,liitf' (fl(' J-i[:idiu'
of law to the leGislature. H.ep()rt to 'I'h"
Flonda Bar HUDrrl of Gnvernors, October
25,200'2.
'1 The li']o,ida Hull;s WP1'e fJatterned aHt,]"
tJ]j, ABA's l'vlodel Hllles. \Vhen the r\llef:;
were adoJltpd in Florida, the "authuril.ed by
law~ langtwgp WtiS omitted from the rule.
rrowevF~r, the comment did not exrJurle tllF'
holdover "authorized by ];-lW~ term.
I;' 1n re Amendment to thc Rules ReguLat
Ing The Florida !1rrr, 875 So ~~d 4.-18 (Flu
2(04)
I.J Comment t.o Hu]e '1"12, Para. 1, bst
<;entente.
J, 8ee Pn:'umble, H.ule.'i (If Profl~ssional
Cooduct, Ch. Ij
15 FLA. STAT. *J 12311:l7 12CJIOl. The in-
formation must meet cert,1in threshold"
th!:d create and present a sllbstaJjt~aJ
and specific dang'.::r to Lhe puLdic's l,e;1Jth.
safety, ClTlrl welfare, or involve ;:HI act (If
gross misman!1I;'?mellt, trl.lsfeasancp., mal-
ff'iJ!o8nCC, Dr g'tCiSS wast,::, of puhlic funds
c FIA STAT. ~.768.2tl(6)(a) requirps notice
prH.r to initinbng a lawsuit. 'lg,i]nst. the
st::lte or ]nc:'1J governrnrnl
,~ r'-!orid,-i ibr 81.,qfTOpininn ]611 h st.atns
that ;,ill attfJrllt"y illilY not djrectly contact
offin,rs, directors, (1'- managing agents 01':;
government. 8gency, or persons who wen;
direcr.ly involved in the n:JD:tter. Wh(J~H~
dets or omissions coule] be impllr.t'd to the
8i{l'IICy, 'l!" '.vtHi.'it' ,'i:liJ'uJi.T:t,,s C!;Jk r:()nsi
t.ut~ admlssl'rm;; ofLh(' Hfil;fH'Y if'th(; i'lgl,JI{Y
is represented by counsp! in the matLer in
\\.'hich ttw :dturne.\' wi"hes to cOl:taci thp
agency; Florida Bar Staff Opinion 162:37
st.ates tbat an attorney representing a cli-
ent suing government officials represented
by counsel who wishes to Wlite the officials
directly to inform them of an adverse rul.
ing by an arbitrator may only contact the
I)ffiC'ials as allowed by Rule 4"4.2, which
does llot contain the "authorized by law"
Qxception; Florida I3ar0taffOpinion 18716
states that Hn attorney may advocate on a
client's behalf at a public hearing held by
t.he government with advance notice to the
govemmcntcounsel; and Florida Ear Staff
(jpinion 2205:3 states t.hat a lawyer may
not directly mnt.act a county commissioner
whose acts 0'. omissions can be imputed
to the government or whose st.atements
IIlay constitute an admission on behalf of
t.he government when t.he county is repre.
sented by counsel ill the matter that is the
subject of the communication
18 FLA. CONST. art. 1, 924; FLA. STAT.
91 UlOll; FL1\. STAT. ~286.011.
J9 Sf'e Scope, Hules of Professional Re-
sponsibility, eh, 4
2U 2011 Florida House Bill No. 285 and
Companion Senate Bill No. ~-j 10 would
require lucal governmental bodies to
rc:ceive public comment under c[~rtain
Tequirements. Bills are pending in the
2()11 legislature at time of dead]jlH~ for
pubJiCiJtiOll.
21 SeE', e.g., FLA. STilT. ~] 6f). 04l(3)(chelat-
ing to Zl)ning and land use matters; FLA.
STAT. ~200.065(2)(p), relating to the Br10P-
bon uf an {lllnual budget
n l"IA STAT 9286.011.
};I A8A Formal Ethics Opinion 97-408
concludes that the lawyer must give the
government lawyer reasonable advance
notice of his or her intent to speak wit.h
that official about the matter in which
they arc represented. Thus, even though
dirert communication may be permissible
lJnder the ABA's "authorized by law excep
bon" Opinion 97..40S would instruct the
Flttorney t.o provicle thA government lawyer
with prior notiCH of any intended contact
with government officials and employees
who a-n~ represented by the gO<.'emmcnt's
lawyer
?l F]orirlCl Ethics Opinion 09-1 at 5 (Dee;
10, ~WlO)
Marion J. Radson is the city atto,~
reey of the City of' Gainesville. He is board
certified by The Florida Bar in city, county,
and local grJUernment law and is admitted
as a local government fellow in the Inter-
national Municipal Lawyers Association.
11e sP.r(ied as chair of , he City, County and
Local Government Law Section of The
Florida Bar in ]997-98, He filed the appeal
of Proposed AdfilSory Opinion 09" 1 to the
Board of Brrr CouannTS on behalf of the
'ire/io/1
This column is suhmitted on behdf
of the C'ity, County and {~ocal (Jouernment
S'ectiull, l/wlen Jane .Monaco, chair, (lnd
./puwllFhr:te CoLe. ("(illm
ET.H1C:S, OPINION 09-1
Page I of.
Thursday, June 9, 2011
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~'enU'.:r ~;.ervIC"S F~~-i'(S ;._)D"l'(H'~
ETHICS, OPINION 09-1
. ..- --- - - - -- --- -
PROFESSIONAL ETHICS OF TH E FLORIDA BAR
OPINION 09-1
December 10, 2010
A lawyer may not communicate with officers/ directors, or managers of State AgencYI or State Agency
employees who are directly involved in the matter, and other State Agency employees whose acts or
omissions in connection with the matter can be imputed to State Agency about the subject matter of a
speCific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is
providing representation unless the agency's lawyer first consents to the communication. A lawyer may
communicate with other agency employees who do not fall within the above categories, and may
communicate with employees who are considered represented by State Agency's lawyer on subjects
unrelated to those matters in which the agency lawy-=r is known to be prOViding representation. The lawyer
may be required to identify himself or herself as a lawyer who is representing a party in making those
contacts. Lawyers communicating with agency personnel are cautioned not to either purposefully or
inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with
government employees and officials. If d lawyer does not know or is Ifl doubt as to whether State Agency is
represented on a particular matter or whether particular State Agency's employees or officials are
represented for purposes of the rule, the lawyer should ask State Agency's lawyer if the person is
represented in the matter before making the communication.
[Note: This opinion was approved as revised by the Board of Governors at its December 10, 2010 meeting
RPC: 4-4.2,4-4,3
Opinions: 78-4, 87.2
A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in
the Inquiring Lawyer's letter are as follows.
Inquirer's firm represents financial institutions in applying for charter approvals and other necessary
approvals with State Agency and federal regulatory agencies, and also in regulatory issues that may arise
with such agencies. Occasionally, Inquirer's firm may represent clients in administrative or judicial
proceedings in which State Agency is the opposing party.
InqUirer's firm currently is representing four clients in administrative or judicial proceedings involving State
Agency which handles state regulatory matters mvolving the licensing, examination, and supervision of
financial institutions. Legal counsel for State Agency has advised Inquirer's firm that all communications to
any employee of State Agency from any lawyer in the firm pertaining to any of the firm's clients must go
through the legal department of State Agency, even when such client matters are not connected in any way
to the four litigation cases. The Inquirer asks whether Inquirer's firm is prohibited by Rule 4-4.2 from
directly communicating with all employees of State Agency, when such communications do not pertain to
any adversarial proceeding between the firm's clients and State Agency.
Rule 4-4.2 of the Rules of Professional Conduct of The Florida Bar is th@E~5Verni.lg ethical standard: B
In representing a client, a lawyer shall not communicate about the subject of the representation with
a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has
,..-,....~-..ft. .r.,r-1 ,.................,. ~""1 , ."'\(\ ..."
r 10,..,1\11
G.:THICS, OPINION 09-1
the consent of tile other lawyer. Notwithstanding the foregoing, ,lfl attorney may, without such pnor
consent, communicate with another's client in ol'der to meet the requirements of any court rule,
statute or contract requiring notice or service of process (1irectly on an adverse party, in which event
the communication shall be strictly restricted to that required hy the court rule, statute or contract,
and a copy shall be provided to the adverse party's Jttomey.
The Comment to the rule states, in relevant part:
This rule contributes to the proper functioning of tile legal system by protecting a persoll who has
chosen to be represented by a lawyer In a matter and the uflcounseleej disclosure of information
relating to the representation.
This rule does not prohibit communication wlltl a represented persoll, or an enlployee or agent of
such a person, concerning matters outside the representation. For example, the existence of a
controversy between a government agency and Ll private party, or between 2 organizations, does not
prohibit a lawyer for either from communicating with nonlawyer representatives of the other
regarding a separate r-natter. Parties to a matter may cornrnunicate directly with each other, and a
lawyer is not prohibited from advising a client roncernlrlg a comrnunicatlon that the client is legally
entitled to make, provided the client is not used to indirectly violate the Rules of Professional
Conduct. Also, a lawyer having independent justification for COmrT\IHlicating wlltl the other party IS
permitted to do so. Permitted commulllcations Irlclude, for example, the riqht of a party to a
controversy With a government agency to speak with qovernment officials about the matter.
In the case of a represented organization, th:s rule prohibits communications with a constituent of
the organization who supervises, directs, or regularly consults with the organization's lawyer
concerning the matter or has iJut!lority hl obligate Hie organization with r-espr.ct to Ule matter, or
whose act or omiSSion in connection wittl that rnat:t:er rnay be imputed to the organization for
purposes of Civil or criminal lia!Ji!lty
The prohibition un communications with a represented person or11y apP!les in circumstances w!lere
the lawyer knows that the per-son is Ir1 fact represented in the. matter to be discussed. This means
that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge
may be inferred from the circufT',stances. Thus, the lawyel- cannot eVdde the requirement of obtaining
the consent of counsel by closing eyes to the obvious.
Several Issues must be conslder'ed In r-espondlng to the rcquestc'd aclvisor-y opini(Hl The first is whethel" all
persons within an organization are deemed to be represented by the organization's counsel for the purposes
of this rule. As indicated in the comments to Rule 4 -.1 ) cllIorf'd ahove, a lawyer would be ethically precluded
from communicating with employees of governrnental ellt'l:it'~; -:)1- agencies whu an'; considered represented
by the govemment's lawyer- for purposes of this nrie With reg"mJ to !-nattf'rs '.H1 v'.Jhic:ll the agency is known to
be I"epresented by a lawyer unless the entity's lawyer consellts to the cynrnunicatlon.
FlOrida Ethics Opinion 78-4 addresses this sometimes difficlllt question of who wiUlin an organizational
structure is considered to be a "porty" within the meaninC) of the rule. (Opinion 78-4 was decided under the
old Code of Professional Responsibility, wtlich prohibited ex parte contacts with a "party" represented by
counsel. While the current rule refers to a "person" represented by counsel, the ratlOna!e of the opinion
nevertheless remains applicable here.) Attempting to balance one party's need to conduct pre-suit
investigation by interviewing certain members of the opponent corporation against the organization's
interest in preventing the unadvised disclosure of particular information, the Committee declined to adopt a
rule that would prohibit all contacts with organizational employees no matter how removed from the conduct
in question. Instead, the Committee found ex parte cori1r1lUnicatiolls improper only Wlttl regard to employees
who are "officers, directors or managing agents" but not other employees "unless t!ley have been directly
involved in the inCident or matter giVing r'is€ to the investigation or !itigation." In Florida Ethics Opinion 87-
2, the Committee extended the rationale of Opinion 78-4 to government entities and noted that the
Comment to Rule 4-4.2, in addition to precluding dil"eCl contdct with an agency's management, also would
preclude unauthorized cornmunicatlollS With persons whose aets 01 omiSSI(H15 in cormection with the matter
could be Imputed to the organization
Thus, regarding a matter in which State Agency is represente(j, ;nqu:rer ,:HlcJ the rirrTI must obtain the
consent of State Agency's lawyer before communicating with State Agency's officers, directors or managers,
or employees who are directly Involved III the matter, 01" With public offiCials or employees whose acts or
omissions In connection With the matter can De Imputed to State Agency,
I"'"
"'-......,.-,..,,,,, ,00 1'-.
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Page 2 of
it) 2005 The Florida Bill- i
Di5Cldtl1ler jlo;) or p.lQe I Pll
L In 1'11\ 1
.:TI-IICS; OPINION 09-1
Page 3 of'
The second issue that must be addressed \s when the prohibition al'ises. Rule 4-4.2 is not limited to matters
in litigation and may extend to matters on which litigation has not yet commenced, as well as to specific
transactional or non-litigation matters on which the agency's lawyer is providing representation. Pursuant to
the language of the Comment, however, direct communications with represented persons, including
protected employees, on matters other than specific matters for which the agency lawyer is providing
representation are permissible. See Florida Ethics Opinion 94-4, Moreover, the Comments limit the scope of
the Rule to those circumstances where "the lawyer knows that the person [agency] is in fact represented in
the matter to be discussed." Thus, an agency lawyer need not enter a formal appearance in order to "in
fact" represent his or her agency on a particular matter, nor must the agency lawyer give other lawyers
formal notice of such representation. However, as suggested by the Comment, there must be actual
knowledge by the non-agency lawyer of representation by the agency lawyer on the matter being discussed
in order for Rule 4-4.2 to apply; but such actual knowledge may be inferred from the circumstances. As a
consequence, Inquirer and the firm are not precluded from communicating with employees or any other
employee of State Agency regarding subjects unrelated to those specific matters on which the
representation of the State Agency's lawyer is known to Inquirer and the firm. In this instance, however, the
Inquirer or members of the firm may be required to identify himself or herself a~; a lawyer representing a
client to comply with Rule 4-4.3 Dealing with Unrepresented Persons.
The final question that must be resolved is whether, because State Agency has a general counsel, the
general counsel is effectively representing the agency on all matters, merely by virtue of being in the
continuous employ of the agency, thus preventing all communications with the State Agency's publiC officials
and employees on all subjects. The Comments described above suggest that this is not the Intent of the
Rule. In addition, the Comments to the Rule expressly recognize that lawyers with an "independent
justification" may communicate with a represented party.
Florida Ethics Opinion 78-4 also addresses this issue-;.-. The Professional Ethics Committee addressed two
questions:
(1) When is a party sufficiently "represented by a lawyer" to require application of DR 7-104(A)(1) so
as to prohibit communication with the party and, in specific, must litigation have commenced for the
DR to apply? (2) Where a potential suit or pending suit involves a corporation, who In the corporate
structure is considered to be a "party" within the meaning of the (Rule)?
The Committee's unanimous answer to the first question is that representation of a party commences
whenever an attorney-client relationship has been established with regard to the matter in question,
regardless of whether or not litigation has commenced. In the opinion of the majority of the
Committee, in the case of even an individual or corporation that has general counsel representing
the individual or corporation in all legal matters, the DR would require communication on the matter
to be with the party's attorney.
Florida EthICS Opinion 87-2 extended the rationale of Opinion 78--4 to government agencies, as discussed
above, and made no exception for contacts with personnel of government agencies.
In view of the Comments' clarification that there must be knowledge that the other party is represented in a
particular matter and that the bar on communications does not apply to matters outside the representation,
Rule 4~4.2 should not be read to bar all communications with government officials and employees merely
because the government entity retains a general counselor other continuously employed lawyers.
Conversely, the rule cannot be read to allow lawyers representing a client to approach represented public
officials and employees to make inquiry about a matter, the status of a matter, or obtain statements about a
matter without affording such officials and employees an opportuntty to discuss with government counsel
the advisability of entertaining the communication. If the lawyer representing a client knows that the public
official or employee is represented in the matter, the lawyer must obtain the prior consent of the
government lawyer. If the lawyer representing a client does not know that the public official or employee is
represented in a matter, the lawyer should inquire whether the person is represented in the matter. In all
instances, to comply with other provisions of the Rules, the lawyer must identify himself or herself to the
public official or employee as a lawyer who is representing a client. Rule 4-4.3 and Florida Ethics Opinion 78-
4.
In conclusion, Rule 4-4.2, as clarified by its Comments, prohibits communications WIth officers, directors, or
managers of State Agency, or State Agency employees who are directly involved in the matter, and other
State Agency employees whose acts or omIssions in connection with the matter can be imputed to State
Agency about the subJect matter of a specific controversy or matter on which a iawyer knows or has reason
to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to
the communication. The Rule does not prohibit a lawyer from communicating with other agency employees
,..~ ,.... ..- .. F"'>,..~ ,.,..-.", ,.... I' 1\. T r""-~ 1\.. I i...{). "t j)
L !O!"'il1 1
THies, OPINION 09-1
Pane >1 of
....
who do not fall within the above calegories, nor does it prohibit a lawyer fmrn communicating with
employees who are considered represented by State Agency's lawyer for purposes of this rule on subjects
unrelated to those matters in which the agency lawyer is actually known to be providing representation The
lawyer may be required to icientify himself or herself as a lawyer who is representing a party. Rule 4-A.3 and
Florida Etllics Opinion 78-4.
Lawyers communicating with agency personnel must be cautioned not to either purposefully or inadvertently
circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4,3 in their communications with government
employees and officials. The right to communicate (jirectly with a~Jency personnel about matters unrelated Lo
those on which ttle agency lawyers are providing specific legal representation must not be used as a vehicle
for engaging in communications that are bam~d by the rulf'_ If tile Inquirer does not know or is in doubt as
to whether State Agency IS represented on d particular matter or whether particular State Agency's
employees or officials ar-e represented for purposes of Ule rule, Inquirer should ask State Agency's lawyel- if
the person IS represented In Ule matter" before IllElklrlg ttle cornrnunlcatlofl. In all instances, the IncpJirer may
be required to i(jentify himself or herself as d lejl,'\Iyer who is r-epresenting d client,
(Iirev.sed. 12-14-20101
RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTl.-:n... Page I of2
Thursday, June 9, 2011
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find a Lawyer I Links I Ethics Opinions 1 elE I Member log Ou
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RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTEO BY COUNSEL
4 RULES OF PROFESSIONAL CONDUCT
4-4 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
(a) In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lnwyer in the matter, unless the lawyer
has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such
prior consent, communicate with another's client in order to l11eet the requirements of any court rule,
statute or contract requiring notice or service of process directly 011 an adverse palty, in which event
the communication shall be strictly restricted to that required by the court rule, statute or contract,
and a copy shall be provided to the adverse party's attorney.
(b) An otherwise unrepresented person to whom limited representation is being provided or has been
provided in <lcct)rdance with Rule Regulating The Florida Bar 4-1.2 is considered to be
unrepresented for purposes of this rule unless the oppo<.;ing lawyer knows of, 01' has been provided
with, a written notice of appeamnce under which, or a written notice of the time period during which,
the opposing lawyer is to cOllllllllnicate with the limited reprcscntationlawyer as to the subject
matter within the limited scope of the representation.
Comment
This rule contributes to the proper functioning of the legal system by protecting a person who has
chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who
are palticipating in the matter, intt:rference by those IU\"ryers with the client-lawyer relationship, and
the uncounseled disclosure of information relating to the representation.
This rule applies to communications with any person who is represented by cOllnsel concerning the
matter to which the communication relates.
The rule applies even though the represented person initiates or consents to the communication. A
lawyer must immediately terminate communication with a person if, after commencing
communication, the lawyer learns that the persoll is one with whom communication is not permitted
by this ru Ie.
This rule docs not prohibit communication with a represented person, or an employee or agent of
slIch a person, concerning matters outside the representation. For example, the existence of a
controversy between a government agency and a private paliy, or between 2 organizations, does not
prohibit a lawyer for either from communicating with nonlav,ryer representatives of the other
regarding a separate matter. Nor doe,'; this rule preclude communication with a represented person
who is seeking advi(.~e from a lawyer wl10 is not otherwise representing,a client in the matter. A (S
lay,ryer may not make a cOlT1munication prohibiled by this rule through the acts of another. See rule 4
-X.4(a). Parties to a maner may communicate directly \.vith each olllel', and a lawyer is not prohibited
,.--.,.... r..--... r.--. ,.........."r"ror..-.. "'-''''''''-''1- TI......t.r"..,F...~/',..,')""r;lI ..
It: JI\!1()11
RULE 4-4.2 CO;VIMtJNICATION WITH PERSON REPRESENTED... Page 2 0['2
[i"OIll <ldvising a clienl cOllcemillg a CCl1l1111Ullicatioll lllilt the client is legally CIltitled to n18ke,
pnwideJ that lhe cliel1t is not used to indirectly vi\)Iare the Rules ofPlofessiollal Conduct. t\ISlL a
IClwycr having indepcndentjustillcatioll for L'('ll11Jl1LJlliclting with tile other party is permitted to do su,
Pnllliltcd cor111llunicatiuns illclude, li)r (''(;mlple, the right of a pany In a Clllltl"Ovcrsy with a
glWl'rIlll1cnt agency to speak with gm'clIllllcllt oflici;\Is ahout the IllilltCI-.
if) 2005 The FlorirJ~ Bar I
D's("'~..ne' I rt'" 01 p~ge I
l-'(H
In the case ora represented organization, this rule prohibits CUlllllHlllicalions \\ill1 a constituent of the
organization who slIpcr\iscs, directs, UI' regularly CllIlsults \vith the ol'ganization's Iav....yer cOllu:rning
the l1wtter or has authority to obligate the organization with respect to the maller or ,>vhosc act or
omission ill C01lnection vvith the matter 1ll~IY he illlputcd to the urganization 1'01' purposes of civil or
crirninalliilbility. Consent of the orgallilatiClIl'S lawyer is not required for communication wilh a
former constitllcl1t. I f it cOllsrituent urtbe mgaJ1izatioll IS rcpres\.'l1tl'ci in the JlHlttcr by' lhe (.gcnt's or
empluyee's OWI1 counsel, the consent by 111<-1t counsel to a coml11unication will be sufficient fClI
purposes orthis rule. Compare rule -'t--)_.l{ n. III COIlIIlHJI1 icntion with (I current u]" ronnel' constituent
of an organization, a lawyer IrllL~t !lut use tlll'1huds ofnht~lil1il1g l'vidcnct' rlwt violate the legal rights
of the organization. See nlk' 4~4.4.
The pmhibition 011 comll1ullicJtions with a represented rerson only applies in circulllstances vvhcre
the la\.I,lyer knows that the person is in ract rcprescJlteJ in the lywller to be disclIssed. This Illeans that
the lawyer has actual knowledge of'tllc fact of the rqm:sclllation; hut such ac1uu] knowledge may be
inrerred Cram the circumstances, See terminology. ThiS. the lawyer C<lllllot evade the requircllll'l1t of
obtaining the conSCllt of counsel by closing eyes tn the obvious
Inthc event the person '>\ ilh wholllthe Ilnvycr commllnicates is 110t known to be rcprcsenkd by
counsel in the mattcl', tile lawyer's cOIl1IllUnic,ltiol1s me' subject In rille 4-4.3.
{P"VI;,,!i."';/;';'i'-.'OiJCJ
JONES
FOSTER
JOHNSTON
&. STUBBSI P.A.
Attorneys and Counselol's
M31"gnret L. Cooper, Esquire
Direct Dial: 561-650-0464
Direct Fax: 561-650-0422
E.-Mail: mcooper@iol1es~foSler com
H:ig.lcl' Center Tower. SuilC 1100
505 South Flag.l~r Drive
West Palm Beach. F10dda Jl401
Telephone Ci(1) 659.3000
Mailing ,\dd/'f!~\'
PO"l Office Box JH5
West Palm Beach. Florida 31..\.02-)47:i
June 13,2011
ebf/'lI'(I5S,.O",~r(j;,~
Agenda Item # Meetrng Date "-//'//1/
Presented bY~5,-f.\-llier
Via E-Mail and U.S. Mail
Jacqueline W Hubbard, Esquire
Collier County Attorney
3301 East Tamiami Ttail, 8th Floor
Naples, Florida 34112
Re: B1ocl,er v. Collier County, et al.
Collier County CiI"cuit COUl.t Cases Nos. 08-66-CA and 08-9355-CA
Our File No. 25239-1
Dear Ms Hubbard:
This is in response to your letter and e-mail regarding the above matter
I made quite clear what OUl requests to the Board of County Commissioners and the Code
Enforcement Board were about We are requesting that the Blockers be able to abate the zoning
violation (found by the CEB and later affirmed by the Courts) via the SIP procedure. This is an
administrative procedure found within the County Codes This request is not settlement of the
Blocker's lawsuits referenced above nor are we asking that the Code fines be waived at this
time.' You continue to confuse an application for administrative SIP process to the adjudicative
body (copy to you) with my improperly contacting County employees conceming ongoing
County litigation without notice to you
I am ethically allowed to make an administrative application with the County directly as to the
SIP process and Zoning Violation Abatement - which is separate and distinct {i'om litigation
This certainly does not constitute an ethics violation I find your innuendo concerning my ethics
to be defamatory and unwarranted
Misrepresentation of what the CEB Ruled
As you well know, the CEB Board ruled on the basis of the cunent codes (based on the improper
advice of the County Attorney) - not the old codes The Chair specifically questioned the county
attorney on the old codes and estoppel. The county attorney rendered his advice that estoppel
could not be considered, (Tr. 4/27/06 p. 79, 92, 93) The CEB ruled that they would not
consider estoppel and would rule bascd on eUlTcnt codc The CEB stated that:
1 If the SIP is later granted, we may consider requesting a fine reduction at a later date. That
however is not part of the current request
7.0Ww,jOllcs-foster COlli
SIN C I~ I I) 2 ..
Jacqueline W. Hubbard, Esq.
June 13,2011
Page 2
We don't issue zoning variances. Again I thinl, we decide that
based on current code, by the way, not based ill! past code.
It is true that the courts affirmed that the Blockers are in violation of current codes, but for you to
claim that the old codes were addressed by the CEB or that the CEB ruled on the SIP as a zoning
violation abatement is simply not true. It is disingenuous of you, as a public employee, to
mislead the Commissionets on these issues
Moreovcr, you continue to refer to the Spccial Magistrate's recommendation in the Altemative
Dispute Resolution procedure This is a non-binding settlement process and has no legal effect
You have implOpeIly brought it before the courts on several occasions in violation of Florida
Statute !i90 408 It is irrelevant to the current situation.
Lastly, we do not lmow what the CEB would have ruled if they would have had the old 1952
map and 1951 eode, as well as the additional cvidencc of permitting later found by Mr Mulherc
and originally withheld from Mr Blocker.
Withholding of Evidence
It is undisputed that the County withheld the 1952 zoning mall and 1951 zoning code. It is true
that Patrick White had obtained an unverified and uncertified fQl2Y of!! 1952 maD - but he could
not use this in any code proceedings because it was unverified. The County claimed they did not
have official records going back that far Even Mr Mazzone stated that the 1965 Code was not
certified which is why he would not put it into evidence. As you welllmow, only official copies
certified !u the Countv can be used in legal proceedings Mr Mulhere obtained the unverified
map from Mr. White That he later made reference to the unverified fQl2Y in settlement
proceedings before a Special Magistrate - aftet the CEB hearings were concluded - is irrelevant
An unverified, uncertified copy was useless Moreover, the County also withheld the 1951
zoning code. The fact that MI. White had an unverified copy of the map did not do much good
without the cotresponding code
To prove that the County failed to timely produce thc 1952 map and 1951 zoning code, 1 direct
you to Susan 1stenes' written reply dated 101l/07 to Patrick White's public document request
She stated that 1952 was the earliest zoning text the County had, and that she could not locate a
zoning map cOJresponrJing to this She stated:
1 have limited knowledge with respect to the history of
development of your client's site,
I can only assume there was a conesponding zoning map in 1959
which graphically depicted the zoning designations of each
.Jacqueline W. Hubbard, Esq.
.June 13,201]
Page .3
propelly in Collier County which went along with the 1959 Zoning
Text However, at this time I have been unable to locate it within
the Department
Patrick White responded:
Although I am concerned that as part of my initial request that the
County calU10t conclusively inform me of the then applicable
regulations, 1 appreciate you advising me that February, ] 959
regulations are presently the County's earliest record of zoning in
the Immokalee area.
Lastly, Mr Mulhere's report also refers to additional evidence of earlier permitting also withheld
from Jerry Blocker which would have helped in the original CEB procedure.
May 3, lOll Public Document Request
You failed to respond my public document request from May .3 to June 9, 20 11 You have
offered no excuse for this delay. Now simply you say that I can come at "any time" to view the
docllments. Please tell me what you are producing so 1 can order copies rather than drive over to
Naples again. It should have been produced when I was there.
Mid-May 2011 - Removal of Maps
I have double checked with both Mr. Johns and ML Blocker who confirm that when they went
back in the morning to copy the documents, the map had been removed I find it offensive that
you and Mr. Snow do not admit that the map was removed from the official records room to the
Code Enforcement office,
Please provide your authOl ity to the effect that "the authority to grant zoning applications did not
exist until 1957 by ordinance in Collier County." Send me a copy of such ordinance Does this
mean individual property owner could not apply for rezoning or that the authority of Collier
County to zone in general did not exist? Were the earlier zoning codes and maps apptOved
through Tallahassee as was customary before the legislative giant of authotity?
Blocker" Entitlement to SIP Procedures to Abate Zoning Violation
Susan Istenes most certainly rendered an opinion and interpretation, albeit not an "Official
Interpretation" under the formal 01 process. Her opinion was based on a misconception that the
property was always zoning Industrial. In fact her unofficial opinion and interpretation is
precisely what .Jeff Klatzkow is now hampered with (and relies upon) to take the position that the
Blocker's park is au illell.allv non-conforming use, not entitled to SIP
Jacqueline W. Hubbard, Esq.
June 13,2011
Page 4
That is where the 1952 map and 1951 code are so important. The property was zoned C-3,
which allowed trailer camps to exist This is why the County issued permits for the trailers in the
first place The point is that the Blocker's park is legallv non-conforming (having been
previously authorized) and therefore entitled to SIP Also, not only was the Park allowed under
the 1952 map and regulations, but it also historically predates zoning altogether. Predating
zoning means it was ul1legulated and became grandfathered when the first zoning codes were
adopted, even if, as the County wrongly suggests, the use was not permitted by right Ms.
Istenes' earlier mistaken belief that it was always zoned "I" and thetefore is illegally non-
conforming is just wrong
I do not understand the distinction that the County Attorney's office now makes between a
mobile home park and a trailer camp 01 parle This seems to be a "splitting of hailS" to justify an
erroneous position. Moreover, this distinction is of recent fabrication and had never been the
County's policy In the 1950's and 60's all such facilities were all called "trailer parks" See
Webstel's Dictionary:
trailer park 1701/17
Definition of TRAILER PARK
: an area equipped to accommodate mobile homes
-- called also ,railer comp, twile! CO 1/1'/
See trailer park dcfined 1'01 English-language
learners
First Known Use of Trailer Park 1942
Request fOl' Information - Other Mobile Home Parks
My request was to get the names of the 47 other mobile home parks identified in the County's
report that have been given SIP (and any other subsequent approval) and the historic zoning for
each. Your answer is nonresponsive That you do not think that they me "similarly structured"
is not a response to my request for this information. Please provide this infonnation as
requested I need this forthwith.
Conclusion
[ do not understand why the County Attorney's office is taking such an unreasonable position on
whether the Blocker's property is lell.allv or illegally non-confonning. Susan Istenes' earlier
opinion was based on inconect information Why is the County refusing to change its collective
mind? Once again, the Blockers request to use the SIP process to abate the zoning violation
Jacqueline W. Hubbard, Esq,
.June 13, 2011
Page 5
1 stand by my prior letters. I believe you should correct the misinfolTImtion you provided to the
County Conunissionel s
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, PA
B>t1;,,~
MLC/dap
cc: Jeffrey Klatzkow, Esq.
County Commissioners
Patrick G White. Esq,
Mr and Mrs. .Jerry B. Blocker
p:\UOl.:s\252.l9\OOtlOI\ILr\1 ay953S doc
Illlbhnrd re sip procedure rcq\lcsl
RaineyJennifer
From:
Sent:
To:
Subject:
HIllerGeorgla
Fnday, June 10,2011 107 PM
RalneyJennlfer
FW: Blocker Update
From: Tim Hancock rmailto:TIm,Hancock@ldavidsonenqineerinq.cot1JJ
Sent: Friday, June 10, 2011 9:31 AM
To: KlatzkowJeff
Cc: OchsLeo; CoyleFred; HillerGeorgla; rjohns; Jerry Blocker
Subject: Blocker Update
Jeff,
At the last BCC Meeting, Commissioner Coyle requested that the County Manager and the County Attorney bring
Information back regarding Items raised by Commissioner Hiller during the meeting, relating to the Blocker Code
Enforcement case. I believe hiS request was to do so at the "next meeting". I did not see this Item on the agenda for this
coming Tuesday, so can you please tell me if this Is scheduled to be discussed as requested or will it occur at the meeting
on the 28'h If at all.
I have plans to be out of town but Will return for this Item If It IS to be addressed on Tuesday, so I would greatly appreciate
a response today so I can make the necessary arrangements Thank you for your time and conSideration Jeff.
Tim Hancock, AICP
l)ire\:lor df j>l;tnnlug
Tim@davidsonenaineerina.com
E
DAVIDSON
I
www.davidsonenaineerina.com
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2007 REPORT BY BLOCKER'S RETAINED EXPERTI REQUEST FOR
RETRACTION OF JUNE 8TH LEITER
HubbardJacqueline
Sent: Thursday, June 09, 2011 4:32 PM
To: Cooper, Margaret L. [mcooper@jones-foster,com]; CoyleFred; ColettaJim; FialaDonna; HillerGeorgia; HenningTom
Cc: KlatzkowJeff; Co!liMarian; BradleyNancy; OchsLeo; FlaggDiane; SnowKitche!l
Importance: High
Attachments: Mulhere Report,pdf (1 MB)
Margaret,
Perhaps you forgot the items of evidence your expert testified about before the Special Magistrate in 2007,
I have attached a copy for your review. Unfortunately for the Blockers, the Special Magistrate did not agree with Mr.
Muhlhere.
Clearly, You have had in your possession or your client's possession all of the old codes, aerials, permits, and Maps you
claimed were withheld, since at least 2007. Mr. Muhlhere's report contained ISO pages of this material. I strongly suggest
you discuss this matter with your co-counsel, Patrick White, who was present at the hearing before the Special Magistrate.
After your review, I suggest you or Mr. White correct the untruthful allegations in your June 8, 2011 letter to the Board of
County Commissioners. I also request a written apology. Thank you.
Jacqueline
PREPARED IN ANTICIPATION OF LITIGATION, REFLECTS THE MENTAL IMPRESSIONS, LITIGATION STRATEGIES AND LEGAL THEORIES OF
THE UNDERSIGNED ATTORNEY AND IS EXEMPT FROM PUBLIC RECORDS DISCLOSURE PURSUANT TO * 119,071(] )(d), FLA. STAT THIS
MESSAGE IS INTENDED FOR THE RECIPIENT ONL Y. IF YOU RECEIVED TH1S COMMUNICA nON IN ERROR, PLEASE NOTIFY THE SENDER
IMMEDIA TEL y, USE OR DISSEMINATION BY ANY PERSON OTHER THAN THE INTENDED RECIPIENT IS STRICTL Y PROHIBITED
Jacqueline Hubbard, Esquire
Litigation Section Chid
Office of the County Attorney
3299 East lall11ami Tnlll. Suite SO(\
r\apks.I'lllrida 34] l~
(2YJ) 252-8400" Telephone
t23\J) 774-0225. Fa"
J ilClluclllle 1-1 1I bbardl(i)co II ierf!ov .net
~)ndi~r f''"lorida L,'lw ('..mail addresses Clre public records, If you do not wan! your e.mail addr,:>!:iS -e1eased ill n,S[)(),'1Se \0 a publiC 'ecords request dD
"-:]! s(~<ld e1i;ctroniC rnaillO in:s entity, instead, contact thiS office DY telephope Or' in writing
o~~f
11 ~ ~ ""rStsl ~~ MeetIng Date'
~LY '" iI ______
p,genda Item ~-\; \e.-C
Gel) "'-'
p\'esented bV
https://mail.colliergov.net/owaJ?ae=ltem&t=IPM. Note&id= RgAAAACBw7h YJwxISLo T g... 6/9/20] I
e
COLLIER COUNTY
DAVID C. WEIGEL
COLLIER COllNTY A 1TORNEY
3301 East Tamiami Trail
Naples, FL 34112-4902
Telephone, (239) 774-8400
Facslmile: (239) 774~0225
Heidi F. Ashton
Ellen T Chadwell
Colleen M. Greene
Steven D. Griffin
Jeffrey A. Klatzkow
William E. Mountford
Thomas C Palmer
Mlchael W. Pettit
Jacqueline W. Hubbard
MaTJorie M. Student.Stirling
Scott R. Teach
Robert N. Zachary
PRIVILEGED AND CONFIDENTIAL
FACSIMILE TRANSMITTAL SHEET
TO: Randy Cohen, Compo Planning Dir. FROM: Robert Bosch, paralegal to
CC: Susan Murray, Planning Director Jacqueline Williams Hubbard,
Michelle Arnold, Code Enf. Director Assistant County Attorney
Dennis Mazzone, Code Enf. Inv.
FAX: 213-2946 PAGES: 22 including this cover sheet
643-6968
403-2343
403-2343
DATE: March 6, 2007 RE: ' Blocker v. BCC
w URGENT
~ FOR YOUR
REVIEW
r FYI
r PER YOUR
REQUEST
Please urgently review the attached opinion by Robert Mulhere, then telephone Jacqueline
Hubbard on 239-774-8400 to discuss.
Thank you,
The information contained in this facsimile message is attorney privileged and confidential information intended
only for the use of the individual or entity named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If
you have received this communication in error, please immediately notify us by telephone and return the original
message to us at the above address via the U.S. Postal Service. Thank you.
We are transmitting from a Xerox WorkCentre Pro665. If there are any problems or complications, please notify us
immediately at (239) 774-8400
Facsimile Operator:
06.CEB.oooS5/35
PROFESSIONAL PLANNING OPINION
Purpose: The purpose of this Professional Planning Opinion is to review the
historic and ongoing uses of the subject property and to provide an
expert planning opinion as to the consistency and compliance of
those uses with the Collier County Growth Management Plan
(GMP), Land Development Code (LDC), and any other applicable
County ordinances, both historically and at present.
Prepared by: Robert J. MuIhere, AICP
Vice President Planning
RWA, Inc.
Date: March 6, 2007
A. Background
The subject property is located at 1101 Alachua Street, Immokalee Florida. The
folio numbers for the subject property are 63864680001 (Lots 6 & 7).
63864720000 (Lot 8), and 63864760002 (Lots 9 & 10) and is more particularly
described as Block 48, Newmarket Subdivision, as recorded in Plat Book I, Pages
104 and 105, Public Records of Collier County Florida. The subject property is
aJk!a "Shell's Trailer Park." To the west, the site is bounded by a platted public
right-of-way (ROW), an extension of Broward Street. Across this public ROW to
the west there is a Junk Yard and/or vehicle salvage operation. Aerial photos and
actual site visits reveal that there are a number of junkJsalvage vehicles and other
items stored in this public ROW, presumably in conjunction with the junk
yard/salvage business. This issue was raised at the Code Enforcement Board
Hearing, in relation to the inappropriateness of the residential use adjacent to the
junk yard/salvage operation. In reality, this would appear to be a code violation on
the part of the adjacent business/land owner, and removal of these vehicles from
the public ROW, or vacation of this unused and unnecessary portion of Broward
Street would create sufficient separation between the subject residential use and
the adjacent commercial use. Moreover, this condition has in no way been crated
by owners of the subject property, but rather by the business/land owner.
Blocker - Professional Planning Opimon
March 6, 2007
Page 2 of 21
The subject sIte contains a variety of residential dwelling units, both mobile
homes and conventional "stick-built" units.
It is alleged that the present use of the property is in vIolation of various Sections
of Ordnance 04-41, the Collier County LDC as well as prior existing zoning
regulations. These specifics of the alleged violations are discussed in detail
throughout the balance of this report. In summary, the violations allege unlawful
and inappropriate development and residential use of Industrial zoned property
without prior Collier County zoning and Building Permit, and purportedly
perpetuating a use that is inconsistent with the County's GMP.
B. Historical Perspective
1. Factual Information from Prooertv Appraiser's records and Aerial
Photos
. The Property Appraiser's records only date back to 1960. Hurricane
Donna destroyed all records pnor to that time.
. The Property Appraiser's Property History Cards for the subject parcels
state that the property has been considered and appraisedJtaxed at a
residential rate by the Property Appraiser's Office as far back as the
existing records indicate. (Available Property History Card Copies are
attached hereto).
. Two of the non-mobile homeltrailer'residential structures on Lot 8 are
shown as built in 1946; aerial photographs cannot confirm that in 1953 the
property was occupied due to tree cover. In 1963 the aerial photograph
shows there were already a significant number of structures on Lots 6, 7
and 8 with lot 9 and 10 left undetermined due to tree cover.
. Property History Cards indicate that improvements to Lots 6 and 7 began
being assessed for ad valorem taxes in 1966; Lot 8 began being assessed
for improvements in 1966; the History Card for Lots 9 & 10 is incomplete
and does not list when Improvements began being assessed. Additional
information from the Property History Cards indicate the following
designations, structure types, years built and various permits that were
issued:
Folio 63864680001 (Lots 6 & 7)
. R-3 (Residential) - Built 1940 +1-
. R-2 (Residential) - Built 1948 +/-
Blocker - Professional Planning Opinion
March 6, 2007
Page 3 of 21
. CG (Garage}- Built 1964
. R-1 (Residential) - Built 1950
. CPC (car port) - Built 1968
Property History Card indicates the following permits issued for
this parcel.
.:. 1963 Per. 4086 - 4/4/63
.:. 1963 Per. 4087 - 4/4/63
.:. 1965 Perm. #5045
.:. 1966 Per. #65-177
.:. 1968 Per. # 67-759500 3/4/68
.:. 1985 Per 1-85-363? 8/7/85
}'olio 63864720000 (Lot 8)
. (Residential) Built 1946
. CG (Garage) 1961
. CG (Garage) 1961 (Removed from tax roll)
. R-1 (Residential) Built 1946
. Trailer - Built 1956
. Trailer - Built 1952
. R-1 + (Residential) Built 1963
. ALSP (Aluminum Screen Porch) - Built ]985
. Trailer - Built 1950
. Trailer - Built 1948
. Trailer - Built] 956
. Trailer - Built 1955
Property History Card indicates the following permits issued for
this parcel.
.:. 1965 Perm. # 5045
.:. ]985 Per - ]-85-362 8-7-85
Folio 63864760002 (Lots 9 & 10)
. MH (Mobile Home) - Built in ]970 +/-
. AW(Cabana)-Built 1970+/-
. ALSP (Aluminum Screen Porch) Built 1984+/-
. MH (Mobil Home) - Built 1975+/-
. Expansion (addition to mobile home) - Built ]975+/-
. ALPC (Aluminum Car Port) - Built 1970 +/-
Blocker - Professional Planning Opinion
March 6, 2007
Page 4 of 21
. *ALPC (Aluminum Car Port) - Built 1970 +/-
. *MH (Mobil Home) - Built 1980 +/-
. * ALSP (Aluminum Screen Porch) - Built 1987 +/-
. *MH (Mobil Home) - Built 1980 +/-
. * ALSP (Aluminum Screen Porch) - Built 1987 +/-
. 1984 - Per. 184-0098 2/2/84
. 1991- Per. 90-9126 (ADD)
* Added to appraisal card in 1992
2. Clerk of Courts & Community Development & Environmental
Services Historic Zooine Maps.
The Clerk of Court's historic zoning maps for the subject property do not date
back further than 2-3-70, and indicate that at that time the property was zoned 1-
IND (Industrial). This is corroborated by two historic zoning maps stored in the
Community Development & Environmental Services Department (CDES), which
also date back to 2-3-70 and 12-4-72 and indicate that the subject site's zoning
was then I(Industrial) and I-C-3 (Commercial and Light Industrial) respectively.
An additional zoning map was discovered in CDES records which indicates a date
of 1952, and depicts C-3 (Commercial and Light Industrial) zoning on the subject
parcels, but the official adoption of thIS map cannot be verified, and the date may
reflect the date of last revision of the underlying map as no known zoning
regulation was in effect in Collier County prior to 1959.
3. Histbric Zoning Ordinances
Copies of the Collier County Zoning Regulations booklets dated 1959, 1961, and
1965 are attached. Additionally the Immokalee Area Zoning District Zoning
Regulations dated 1970 and relevant portions of the Immokalee Area Zoning
District Zoning Regulations 1973 are attached.
I C. Analysis
The subject property has contained residential structures (mobtle homes and
several traditional (stick-built or concrete block) dwellings) for more than forty
years. The earliest zoning ordinance in County records dates to 1959. From 1959
through the present day, the residential uses where either expressly permitted, or
permitted as legal non-conforming uses, including alterations and repairs, as well
as replacement structures and new mobile homes. Most, if not all, of Collier
County's records for the year's prior to 1960 were destroyed (during and after
Hurricane Donna); however, aerial photographs, reconstructed records, and
anecdotal evidence support the existence of residential structures on the property
Blocker - Professional Planning Opinion
March 6, 2007
Page 5 of 21
as far back as 1946. A 1953 aerial appears to show the site was relatively
undeveloped or vacant, but this is difficult to verify from the aerial to the tree
canopy. The 1963 aerial shows many structures present on the site. Collier
County's first comprehensive zoning ordinance was not adopted until 1959,
although one map that was found in CDES was dated 1952 and indicates the
subject property was zoned C-3 (Commercial-Light industrial) may have been
such at that time. Clearly, based upon aerial photographs, the use of the property
for residential purposes was established prior to the adoption of that 1959
ordinance, The residential use was established lawfully prior to the zoning
changes that prohibit that use (thus the structures are lawfully pre-existing).
Moreover, since the use of this property for residential purposes, including mobile
home units, was a legal conforming use for many years, said use and all lawfully
pre-existing structures are, at present, legally nonconforming as defined in the
Collier County We. As such, all existing structures may remain in place and in
use (and may be repaired and maintained) subject to the provisions set forth in
Section 9.03.02 of the LDe. This being the case, there is no legal basis for any of
the alleged Code Enforcement violations.
This position is further supported by the fact that, although the use has been
ongoing since at least 1963 and there is evidence in the form of historic zoning
maps that the property has been zoned Industrial or Light Industrial since at least
1970, no violation was alleged and no "Notice of Violation" issued (related to the
use of the property) prior to 2001 (with no actual enforcement action taken) and
again in 2006. How is it that permits for repairs, maintenance and replacement
units were regularly approved by Collier County in the intervening decades? The
only logical conclusion is that it was consistently determined that such permits
could, in fact, be issued: based upon the undisputed fact that the residential use
was originally lawfully pre-existing or legal nonconforming in that it predated the
present Industrial zoning designation, and was in fact an expressly permitted use
under that designation and previous zoning designations from at least 1959
through 1976.
It is important to consider the historic zoning and allowable uses on the subject
property. It is also important to note that available historic zoning maps from the
Collier County Clerk of Courts office date back only to 1970, although as
previously stated, the residential use (both mobile homes and traditional stick
built) have been verified as early as 1963, and before. I have reviewed the
following historic zoning ordinances (which are attached):
. 1959 First Collier County Zoning Ordinances (Countywide, effective
February 1959)
. 1961 Countywide Zoning Ordinance (effective April 1961)
. 1970 Immokalee Area Zoning Ordinance (effective October 1970)
Blocker - Professional Planning Opinion
March 6, 2007
Page 6 of 21
. 1973 Relevant pages Immokalee Area Zoning Ordinance (Amending 1970
Immokalee Area Zoning Ordinance effective May 1973)
The fact is that there are no "officIal" pubic records that indicate what the subject
property was zoned prior to 1970, and thus it cannot be factually ascertained what
the zoning was on the subject parcels, and thus what regulations applied and what
uses were permitted (or prohibited).
Nevertheless, reviewing the historic zoning ordinances that applied to the subject
property reveals that in each of the above, the more permissive zoning districts
allowed, as pennitted uses, all of the uses permitted in the less pennissive
districts. This is a then popular hierarchical structure, still in use throughout the
United States, and known as Euclidean Zoning, in reference to 1926 Supreme
Court case, City of Euclid v. Ambler Realty. In other words, if we assume that the
subject property was zoned Industrial (I) at the time of the adoption of the
County's first zoning ordinance in 1959, the I district expressly permitted any
uses permitted in the C-3 commercial district, and the C-3 district expressly
permitted any uses in the C-2 district, the C.2 district expressly permitted any
uses permitted in the C-I district, and the C-I district expressly permitted any use
permitted in the R-3 district. The R-3 district expressly permitted any use
permitted in the R-2 district, and the R-2 district expressly permitted any use
permitted in the R-I district. Therefore, all uses permitted by right in R-I through
R-3 were also permitted by right in C-l, all uses permitted by right in R-I through
R-3 and C-l were also permitted by right in C-2, all uses permitted by right in R-I
through R-3, C-I, and C-2 were also permitted by right In C-3, and so on. In thIS
way the I district was the most permissive district allowing all expressly permitted
uses in the I distnct as well as perrrlltted uses in the R-I through R-3 and C-I
through C-3 districts.
The R-I district, in the 1959 code, allowed single family dwellings as a permitted
use and expressly prohibited the use of tents for living quarters, It should be
noted that the R-2A district expressly prohIbited both tents and "trailers" from
being used as living quarters. If this prohibition was also desired in the R-I, R-2
or R-3 districts, the code would have expressly stated that. Therefore, residential
uses, including stick built single and multifamily, and mobile homes were
permitted on the subject property, whether It was zoned residential (R-I through
R-3), commercial (C-I through C-3), or Industrial (I). Thus, as to the subject
lands the now existing uses were then lawfully permitted.
The 1961 code, as amended in October of 1962, established an R-4 zoning
district, which expressly allowed mobtle home andJor "Trailer Homes" for
residential use. In this code, the above noted procedure continues, allowing the
permitted uses from less permissive districts to also be permitted in the more
permissive districts, except that the allowance is not extend to the R-4 district.
Blocker - Professional Planning Opinion
March 6, 2007
Page 7 of 21
Nevertheless, in both the 1959 and 1961 (as amended in 1962) the codes
ex.pressly permit in the C-l district, under permitted use Number 6, Trailer Camps
or Courts. Therefore, regardless of any restriction ex.pressly stated or implied (by
the addition of the R-4 district) that the 1961 code (as amended in 1962) placed
upon the use of mobile homes, the use was still allowed in the C-l district and the
I district allowed all permitted uses in R-l through R-3 and C-l through C-3.
Thus, as to the subject lands the now ex.isting uses were then permitted.
Additionally, the C-l district, under permitted use Number 2, listed a number of
ex.pressly prohibited uses in the 1959 and 1961 codes. In 1965 the list of
prohibited uses is canied over but now includes a previously nonex.istent
prohibition on "the use of house cars or mobile homes for living quarters."
Generally however, the 1965 County-wide zoning ordinance follows a similar
procedure as previous ordinances in that the I district allows all permitted uses in
the C-3 district, and the C-3 district allows all permitted uses in the C-2 district,
C-2 allows all permitted uses in C-l, C-l allows all permitted uses in R-3, and so
on. Even if it is assumed that the R-I through R-3 districts did not allow mobile
homes in the case of the 1965 code, and the C-l district prohibited the mobile
home use individually or generally (under penrutted use Number 2), the use is
still permitted in the form of a Trailer Camp (permitted use Number 6) pursuant to
operation under regulations of the State Board of Health, which has been the case
for the subject mobile homes since at least 1986.
Finally, all of these zoning codes (1959, 1961 (as amended) and 1965 (as
amended) under the I zoning district permitted use Number 2, "Anv lawful use
that is not obnoxious or offensive by reason of the emission of odors, fumes, dust,
smoke, noise. vibration, radioactive waves, o~ substances, or possesses an
abnormal explosion hazard." Thus, as to the subject lands, the now ex.isting uses
were then lawfully permitted before January 1970, when the Immokalee zoning
ordinances and regulations became effective.
As stated, in January of 1970, a zoning ordinance was adopted covering the
Immokalee Area (with a separate ordinance covering the coastal area). This
ordinance, to some degree, followed the same hierarchical structure as the
previous County-wide codes in that the most permissive districts allowed
permitted uses from the less permissive districts, but only in the case of the I and
C-l through C-3 districts. That is, the I district allowed permitted uses from the C-
1 through C-3 districts. The C-3 district allowed permitted uses from the C-I and
C-2 districts, and so on. Reviewing the historic zoning maps, it is not until 1970
that we can first determine and verify how the subject property was actually
zoned.
It appears the subject property was zoned I under the then newly adopted
regulation. In 1972, the County changed the zoning to I-C-3. Thus, it is not until
Blocker - Professional Planning Opinion
March 6, 2007
Page 8 of 21
the 1970 Immokalee Area zoning ordinance (and subsequent 1972 amended
ordinance) that we first find that the already existing and permissible residential
use of the subject property is not a permitted use. Likewise, this is the first point
in time that the residential use became legally nonconforming.
The currently effective LDC (Section 9.03.02), allows legal non-conforming uses
to remain in place and use until they are voluntarily removed or destroyed by any
cause, or the use is discontinued (as set forth under the applicable provision of
Section 9.03.02.). Additionally, and at the discretion of the property owner, the
LDC provides for a process to allow the nonconforming residential structures to
be altered, expanded, or replaced. In similar fashion, previously applicable
historic zoning ordinances also allowed legally non-conforming uses to remain in
place and in use, or altered, expanded, or replaced, under the same or similar
conditions. A detailed analysis of the non-conforming provisions of the current
and historic zoning codes IS provided in Section D of this report.
Thus, it is clear that the LDC provides for a reasonable and legal remedy to
address the alleged violation. This remedy is wholly different from the remedy
that was set forth in the respective Orders of the Board, for CEB Case Numbers
2006-16,2006-17 and 2006-18. These Orders, In summary, provided two options,
the first being to rezone the property to a current zoning district that allows the
residential uses, or alternatively, to remove the violation(s). Since it is not
possible under the current OMP provisions to rezone the property to make the
residential use conforming, the CEB Order, in reality left only one option, to
remove all of the residential structures. This is obviously an unreasonable
requirement, with no basis in law since, as previously stated, due to its legal
noncor1fonmng status, the residential use of the subject proJ1erty may continue
subject to the limitations of Section 9.03.02.
ID.
Nonconfonnities
J
Applicable portions of the current LDC read as follows [double-underline and
highlighting added for emphasis]:
Section 9.03.01
A. Intent. Within the zoning districts established by the LDC or
amendments that may later be adopted, there may exist lots, structures.
uses of land. water and structures, and characteristics of use which were
lawful before the LDC was adonted or amended, but which would be
prohibited, regulated. or restricted under the terms of LDC or future
amendments. 11 is the intent of this ~ection to oenni! these
nonconfonnities to continue until thev are voluntarilv renovated or
removed as reauired bv the LOC. but not to encouraQe their sum val It 1 S
Blocker - Professional Planning Opinion
March 6, 2007
Page 9 of 21
further the intent of the LOC that the nonconformities shall not be
enlarged upon, expanded, intensified, or extended, nor be used as grounds
for adding other structures or uses prohibited elsewhere in the same
district.
B. Declaration. Nonconforming uses are declared by this section to be
incompatible with permitted uses in the districts involved. A
nonconforming use of a structure, a nonconforming use of land or water,
or a nonconforming use of structure, land or water in combination shall
not be extended or enlarged after the effective date of the LDC or relevant
amendment thereto by attachment on a structure or premises of additional
signs intended to be seen from off the premises, or by the addition of other
uses of a nature which would be prohibited generally in the district
involved, except as provided for within section 9.03.03 B.4.
C. Vested projects. To avoid undue hardship, nothing in the LDC shall be
deemed to require a change in the plans, construction, or designated use of
a building or property on which a building permit had been applied for
prior to the effective date of adoption of relevant amendment of the LDC.
In addition, nothing in the LDC shall be deemed to require a change in the
plans, construction, or designated use of any property for which a
development plan was lawfully required and approved prior to the
effective date of adoption of relevant amendment of the LDC, provided
that such plan shall expire two (2) years from the date of said approval, or
one (1) year from the date of adoption of the LOC, whichever shall first
occur, if no actual construction has been commenced; and thereafter, all
development shall be in accordance with the zoning regulations then in
effect. Any such approved plat or plan may be amended by approval of the
BCC, provitled the degree of nonconformity with the LDC shall 'not be
increased.
D. Casual, temporary, or illegal use. The casual, temporary, or illegal use of
land or structures, or land and structures in combination, shall not be
sufficient to establish the existence of a nonconforming use or to create
rights in the continuance of such use.
F. Change to conforming use requires future conformity with district
regulations. Where a structure, or structure and premises in combination,
in or on which a nonconforming use is replaced by a permitted use shall
thereafter conform to the regulations for the district in which the structure
is located, and [sic] the nonconforming use shall not thereafter be
resumed nor shall any other nonconforming use be permitted.
G. Nonconformities not involving the use of a principal structure.
Nonconformities not involving the use of a principal structure ,
including, but not limited to, open storage, building supplies, vehicles,
mobile homes, trailers, equipment and machinery storage, junk yard,
commercial animal yards and the like, shall be discontinued within one
Blocker - Professional Plannmg Opinion
March 6, 2007
Page 10 of 21
(1) year of the effective date of the LDC or relevant amendment of the
LDC.
H Safety ofnonconfonnities.
1. If a nonconforming structure or portion of a structure, or any
structure containing a nonconforming use becomes physically
unsafe or unlawful due to lack of repairs or maintenance, and is
declared by the duly authorized official of Collier County to be
unsafe or unlawful by reason of physical condition, it shall not
thereafter be restored, repaired, or rebuilt except in conformity
with the regulations of the district in which it is located.
2. If a nonconforming structure or portion of a structure, or any
structure contaimng a nonconforming use, becomes physically
unsafe or unlawful for reasons other this lack of repairs or
maintenance, nothing contained herein shall be deemed to prevent
the strengthening or restoring to a safe condition of such building
or part thereof declared to be unsafe by the authorized official of
Collier County charged with the public safety; provided, however,
that where such unsafeness or unlawfulness is the result of damage
from destruction, the percentage of damage limitatIOns set out in
section 9.03.02 F.3., as the case may be, shall apply.
Section 9.03.02 Reauirements for Continuation of Nonconfonnities. Where. at the
effective date of adoouon or relevant amendment of the LDC, lawful use of lands
or waters exists which would not be oennitted under the LDC. the use may be
continued, so long as it remains otherwise lawful, provided:
A. Enlargement, increast, intensification, alteration. No such
nonconfonninsz use shall be enlarQed. intensified. increased or extended
to occupy a greater area of land, structure, or water than was occupied at
the effecti ve date of adoption or relevant amendment of the LDC, exceot a
sinszle-familv. dunlex or mobile home use as orovided for within section
903.03 B 4
C. Change in tenancy or ownership. There mav be a chanRe in tenancy.
ownershin. or manaQement of a nonconforminsz use nrovided there is no
chanre in the nature or cha:('acter of such nonconfnnnin2 use.
G. Repairs and maintenance. On any nonconforming structure or portion
of a structure and on any structure containing a nonconforming use,
work may be done in any period of twelve (12) consecutive months on
ordinary repairs, or on repair or replacement of non bearing walls, fixtures,
wiring, or plumbing to an extent not exceeding twenty (20) percent of the
current assessed valuation of the structure (or of the nonconforming
portion of the structure If a nonconforming portIon of a structure is
involved), provided that the cubic content of the structure existing at the
Blocker - Professional Planning Opinion
March 6, 2007
Page 11 of 21
date it becomes nonconforming shall not be increased except subject
further to the exception provided at section 9.03.03 8., herein.
H. Subdivision or structural additions. No land in nonconforming use shall
be subdi vided, nor shall any structures be added on such land except for
the purposes and in a manner conforming to the regulations for the district
in which such land is located; provided, however, that subdivision may be
made which does not increase the degree of nonconformity of the use.
9.03.03 Tvpes of Nonconformities
B. Nonconforming structures. Where a structure lawfully exists at the
effective date of the adoption of this ordinance or relevant amendment that
could not be built under the LDC by reason of restrictions on lot area, lot
coverage , height, yards , location on the lot ,or requirements other
than use concerning the structure ,such structure may be continued so
long as it remains otherwise lawful, subject to the following provisions:
1. No such nonconformin~ structure may be enlaraed or altered in
a way which increases its nonconformity. hut any stmcture or
nottin" thereof mav he altered to decrease its nonconfonnitv:
nrovided. however. that the alteration. eXDansion. or renlacement
of nonconfonnin2 sinll)e~familv dwellinl:!s. dunlexes or mobile
ho~s shall be nenni~d in accordance with section 9.03.03 B.4.
2. Should such nonconforming structure or nonconforming portion of
a structure be destroyed by an y means to an ex tent of more than
fifty (50) percent of its actual replacement cost at time of
destruction, as determined by a cost estimate submitted to the
site development review director, it shall not be reconstructed
except in conformity with protisions of the LDC.
3. Should such structure be moved for any reason for any distance
whatever, other than as a result of governmental action, it shall
thereafter conform to the regulations for the district in which it is
located after it is moved.
4. Nonconforming residential structures, which for the purpose of this
section shall mean detached single-family dwellings, duplexes or
mobile homes in existence at the effective date of this zoning
Code or its relevant amendment and in continuous residential use
thereafter, may be altered, expanded, or replaced upon
recommendation of the Collier County Planning Commission and
approval of the Board of Zoning Appeals by resolution.
5. Notwithstanding the foregoing restrictions as to reconstruction, any
residential structure or structures in any residential zone district
may be rebuilt after destruction to the prior extent, height
and density of units per acre regardless of the percentage of
destruction, subject to compliance with the
applicable building code requirements in effect at the time of
Blocker - Professional Plannmg Opinion
March 6, 2007
Page 12 of 21
redevelopment. In the event of such rebuilding, all setbacks and
other applicable district requirements shall be met unless
a variance therefore is obtained from the Board of Zoning Appeals.
For the purpose of this section, a hotel, motel, or boatel shall be
considered to be a residential structure. Since the size and nature of
the alteration, expansion or replacement of such nonconforming
structures may vary widely, a site plan, and if applicable,
preliminary building plans indicating the proposed alteration,
expansion or replacement shall be presented with each petition.
Prior to granting such alteration, expansion or replacement of
a nonconforming single-family dwelling, duplex or mobile home.
the Planning Commission and the BCC shall consider and base its
approval on the following standards and criteria:
a. The alteration. exoansion or l'enlacement will not increase
the densitv of the narcel or lot on which the
nonconfonninll sinl2le-familv dweHinl! duolcx. or
mobile home is located:
b, The alteration. exnansion. or renlacement will not exceed
the buildin2 height reouirements of the district most closelv
associated with the subject nonconformin2 use:
c The alteration. exnansion. or renlacement will not further
encroach unoo any nonconfonninl! setback:
d. The alteration. exnansion. or renlacement will not decrease
or further decrease the existinS! oarkinl;! areas for the
structure:
e. The alteration. ex-oansio". or renlacement will not damai:!e
the character or aualitv of the nefmborhood in which it is
located or hinder the oroner future develooment of the
sUIToundinl! orooerties: and
f. Such alteration. exnansion~ or renlacement will not oresent
a threat to the health. safetv~ or welfare of the community
or its ~sidents.
C. Reauirements for imnrovements or additions to nonconformine: mobile
homes.
1. Improvements or additions to nonconforming mobile
homes containing conforming uses, in the A agriculture district
only, shall be permitted if the addition or improvement complies
fully with the setback and other applicable regulations.
2. Issuance and reissuance of building permits when multiple mobile
homes are located on a single parcel of land: Where specific
zoning districts permit mobile home development and said lands
have been substantially developed prior to the effective date of the
LDC with multiple mobile homes under singular ownership
without an approved site development plan, as required by
Blocker - Professional Planning Opinion
March 6, 2007
Page 13 of 21
Chapter Ten of the LDC, no further building permits for the
placement or replacement of mobile homes may be obtained
except as defined below.
3. Prior to issuance of anv buildinv nennit for reolacement of..i..
mobile home the nmnertv owner or authorized aireD! shall
nMvide the County Manaver or de.~imee. or his desimee. with
three conies of a scaled drawintl of the subiect narcel which
indicares'
a. Proof of huildin2 nenni! issuance for stnJcture bein2
fenlaced
b. The location of the structure to be ren.aced and its
relationshin to adiacent mobile homes and narcel
boundaries.
4. Prior to iR~tUlnCe of a ~uiJdinfl nermit for anv additional mobile
homels) the 8uolicant or authorized Rllent shall obtain a site
develonment nlan~ consistent with Chanter 10 of the LOC. As nart
of the SDP annlication. buildintl nenn]! numbers of all
existinil mobile homes shaH he submitted.
5. In no case shall the issuance or reissuance of buildins:r nennits
cause the density of the subiect Darcel to exceed that nrovided in
the density ratina: $vstem of the GMP or the Immokalee future
land use man excent a8 may he nrovided in section 9.03.03 B.4. of
the LOC.
Finally, as to the allegation that mobile homes were required to have been
removed under the provisions of Section 1.8.3.5 of the LDC in effect prior to the
current LDC \Jrovisions, note that Section then read as follows: I
1.8.3. 5
Nonconformities not involving the use of a principal structure.
Nonconformities not involving the use of a principal structure,
including, but not limited to, open storage, building supplies,
vehicles, mobile homes, trailers, equipment and machinery
storage, junkyard, commercial animals yards and the like, shall be
discontinued within one year of the effective date of this code or
relevant amendment of this code.
This Section is simply not applicable in any way, shape or form to the case at
hand. First, the Section existed under the nonconforming structures section of the
LDC. It is the use that is alleged to be nonconforming in the subject case, not the
structures. More importantly, however, the Section is intended to deal with the
removal of nonconforming uses that do not involve principal structures. These
residential units are principal structures. The list of examples provided assumes
the listed nonconforming structures or uses are not involved in the use of a
principal structure, and therefore, there is no justification for those nonconforming
Blocker - Professional Planning Opinion
March 6, 2007
Page 14 of 21
uses continuing beyond a reasonable period, which the code deems to be one year.
This Section simply does not apply in this case where the alleged nonconforming
use is part and parcel with the principal structure. Finally, construing this section
so as to make it be applicable would have resulted in conflict with other
nonconforming provisions of the then effective code which allows such
nonconforming uses (and in this case the structures that house those uses) to
remain in place subject to the then applicable limitations and conditions, including
the following language which is in the present code and was contained in the then
effech ve code:
Nonconfonning residential structures, which for the purpose of
this section shall mean detached single-family dwellings,
duplexes or mobile homes in existence at the effective date of this
zoning Code or its relevant amendment and in continuous
residential use thereafter, may be altered. expanded. or replaced
upon recommendation of the Collier County Planning Commission
and approval of the Board of Zoning Appeals by resolution.
I E. Specific AoaIysis of Notice of Violation (NOV) code citations
The Notice of Yiolation (NaY) and Order to Correct issued by Collier County
and dated January 23, 2006 indicates the followings:
Specifically the following violations are alleged:
1. Violation of various sections of the 1970 Zonin!! Rel!1llations of the
Immokalee Area
Response:
As established herein, the residential use was in fact a lawfully pre-
existing and permitted use for many years under the 1959, 1961,
1970 and 1973 zoning ordinance, which did in fact allow for the
residential use, including the mobile home use. Although the use is
not presently permitted in the "I" Industrial district, the existing
use is legal non-conforming and such structures may remain in
place and be replaced, altered, maintained and repaired, in
accordance with the applicable provisions in the LDe governing
non-conformities. Moreover, how can a use be in violation of a
code that has been repealed and not in effect at the time of the
issuance of the NaY. The lmmokalee Area Zoning Ordinance was
not amended, it was repealed.
2. Violation of Ordinance 04.42, as amended (Collier County LDC in
effect at time of issuance of NOV):
Blocker - Professional Planning Opinion
March 6, 2007
Page 15 of 21
1.04.01 Generallv
A. The provisions of this LDC shall apply to all land, property and
development in the total unincorporated area of Collier County except as
expressly and specifically provided otherwise in this LDC. No
development shall be undertaken without prior authorization pursuant to
this LDC. Specifically, no building, structure, land or water shall hereafter
be developed, or occupied, and no building, structure, or part thereof shall
be erected, reconstructed, moved, located, or structurally altered except in
conformity with the regulations set forth herein and for the zoning district
in which it is located.
B. The regulations established in this LDC and within each zoning district
shall be minimum or maximum limitations, as the case may be, and shall
apply uniformly to each class or kind of structure, use, land or water,
except where specific provision is made in this LDC.
C. This LDC shall apply to all division of land and all subdivisions in the
total unincorporated area of Collier County, except to the extent as
expressly provided herein. It shall be unlawful for any person to create
a subdivision of, or to subdivide, or to otherwise divide, any land in the
total unincorporated area of Collier County, except in strict conformance
with the provisions of this LDC and any applicable provisions of the
Collier County Growth Management Plan (GMP).
ReSDonse:
The above general provisions are just that, general in nature, and
are only applicable where a Violation of some other section of the
LDC has been found to have occurred. It is our position that no
violation of this specific section as alleged has occurred and that
staff did not conduct the necessary evaluation and research to even
determine whether a violation of the LDC had in fact occurred.
1.04.05 RelationshiD to Growth Manal!ement Plan
The adoption of this LDC is consistent with, compatible with and furthers the
goals, policies, objecti ves, land uses, and densities or intensities contained and
required in the GMP, and it implements and directly advances the goals, policies
and objectives of the GMP. The Board of County Commissioners of Collier
County hereby declares and affirmatively states that in the event that any land
development regulation, this LDC, or any provision hereof or amendment hereto
is not consistent with the adopted Collier County GMP, as amended, the
provisions of the Collier County GMP, as amended, shall govern any action taken
Blocker - Professional Planning Opinion
March 6, 2007
Page 16 of 21
with regard to an application for a development order or other activity.
Furthermore, any land development regulation, this LDC, or any provision hereof
or amendment hereto shall be interpreted, construed and implemented in such a
manner which will make it most consistent with the Collier County GMP, as
amended.
Response:
Again, this is a general provision that pertains to how the LDC
must be consistent with the GMP. Any violation of the LDC can be
found not to be consistent with, compatible with or not to further
the goals, policies, objectives, or be consistent with the land uses,
and densities or intensities contained and/or required in the GMP,
and thus not to implement or and directly advance the goals,
policies and objectives of the GMP, but such a violation of the
GMP must be specifically stated. No such violation of the GMP
has been cited or evidence provided. We do not agree that a
violation of this section or others has occurred, and thus, the use is
not in violation. If no vIolation has occurred, and the uses are
consistent with the applicable LDC provisions dealing with non-
conformities, then the use cannot be in violation of this section.
1.05.01 Purpose and Intent
F. In order to ensure that all development in unincorporated Collier County is
consistent with the Collier County GMP, it is necessary and proper to
establish a series of zoning districts to ensure that each permitted,
accessory and conditional use is compatible with surrounding land uses,
served by adequate public facilities, and s~nsltive to natural and coastal
resources. Each zoning district has its own purpose and establishes
permitted uses, uses accessory to permitted uses, conditional uses,
dimensional standards and other land use, density and intensity regulations
and references, sign regulations, off-street parking and loading
regulations, landscaping regulations, and other regulations that control the
use of land in each zoning distnct. All development within each zoning
district shall be consistent with the purposes and regulations stated for that
zoning district in Chapter 2.
Response:
Same general response as above, except to add this proviSIon
merely authorized creation of zomng districts, etc., and that they
must be internally consistent.
2.02.01 Establishment of Official Zonin!! Atlas
D. No changes of any nature shall be made in the Official Zoning Atlas or
any matter shown thereon. or in the zoning districts or regulations
Blocker - Professional Planning Opinion
March 6, 2007
Page 17 of 21
contained herein, except in conformity with the procedures established in
this LDC and consistent with the Collier County GMP. Any unauthorized
change of whatever kind by any person shall be considered a violation of
this LDC.
Response:
This section deals with the process of changes to the official
Collier County Zoning Atlas. This did not occur, and thus, this
section is not applicable and should not have been cited as a
violation, as no violation of this section has occurred. Please note,
the requirement of the Order of the Board, (CEB) Item 2. requires
a re-zoning without affording any opportunity to amend the GMP
to allow such use.
2.03.03 Industrial Zonin!! Districts
A. Industrial District "I". The purpose and intent of the industrial district "I"
is to provide lands for manufacturing, processing, storage and
warehousing, wholesaling, and distribution. Service and commercial
activities that are related to manufacturing, processing, storage and
warehousing, wholesaling, and distribution activities, as well as
commercial uses relating to automotive repair and heavy equipment sales
and repair, are also permissible in the I district. The I district corresponds
to and implements the industrial land use designation on the future land
use map of the Collier County GMP.
2.04.03 'fable of Land Uses in Each Zonin!! District
The following tables identify the uses that are permissible by right in each
zoning district and the uses that are allowable as conditional or accessory
uses.
2.05.01 Densitv Standards and Housin!! TVDes
A. Where residential uses are allowable, the following density standards and
housing type criteria shall apply.
ResDonse:
The above two sections identify permitted uses and allowable
residential density. In the "I" district, residential use are not
permitted (except for one caretakers' residence), and thus, no
residential density allowance is identified. Again, this is accurate,
but does not consider the application of the LDC provisions as they
relate to nonconformities.
Blocker - Professional Planning Opinion
March 6, 2007
Page 18 of 21
8.08.00 CODE ENFORCEMENT BOARD
B. Violation. Whenever, by the provisions of this Code, the performance of
any act is required, or the performance of any act is prohibited, or
whenever any regulation or limitation is imposed on the use or
development of any land or water, or on the erection of a structure, a
failure to comply wIth such provisions shall constitute a violation of thIs
Code.
D. Liability. Any owner, tenant, or occupant of any land or structure, or part
thereof, and any architect, engineer, builder, contractor, or any other agent,
or other person, firm, or corporation, either individually or through its
agents, employees, or independent contractor, who violates the provisions
of this Code, or who partIcipates 10, assists, directs, creates, or maintains
any situation that is contrary to the requirements of this Code, shall be
held responsible for the violation and be subject to the penalties and
remedies provided herem or as otherwise provided by statute or
ordinance.
Response:
These sectIOns are applIcable if a violation occurs. The analYSIS
contained herein refutes the alleged violation, and thus these
sections would not be applicable. Regardless, they merely state
that the violation of some other section of the LDC constitutes a
violation, and thus, a violation of this section in itself is not
possible.
9.03.01 Generallv .
D. Casual, temporary. or illegal use. The casual, temporary, or illegal use of
land or structures, or land and structures in combination, shall not be
sufficient to establish the existence of a nonconforming use or to create
rights in the continuance of such use.
Response:
This section is not properly cited and does not apply. The uses in
question, residential uses, are not casual or temporary in nature,
and as we have demonstrated herein, these uses were lawfully pre-
existing and permitted and as such, while no longer permitted in
the current underlYlOg I Industrial zoning on the subject property,
they are subject to the LDC provisions related to non-conformIties.
They are not illegal uses as suggested by citation of this section
without some other section of the LDC beIng found to exist
demonstratIng such illegality.
Blocker - Professional Planning Opinion
March 6, 2007
Page 19 of 21
3. Under DescriDtion of Condition Constitutinl! the Violation the NOV
~
Unlawful and inappropriate Mobile Home improvements to Industrial
zoned property in Collier County known as 1101 Alachua SI. Immokalee,
Fla.la.k.a. lot 8, block 48, Newmarket Subd., ID# 63864720000 of Collier
Col. Record. All same industrial zoned property having had a previous "1-
C-3" zoning designation, which also prohibited placement of Mobile
Homes for dwelling use. (REF: IMMOKALEE AREA ZONING DIST.
REG'S, DATED OCT. 1970.) All same development and improvements
having taken place in direct contrast to Collier Co. land development
requirements and without prior Collier Co. Zoning and Planning review
and approval.
Response:
I have not been provided nor am I aware of any professions]
planning analysis conducted by Collier County related to these
allegations. Conversely, in preparation of this report, 1 have
reviewed the following: aerial photographs, Collier County
Property Appraiser, Collier County Clerk of Courts and Collier
County Community Development and Environmental Services
Division public records, including historic and present zoning
ordinances and zoning maps as they then applied or are currently
applicable to the subject property. Based upon this research and
analysis, and, particularly based upon the facts and opinions set
forth in this report, the allegations of violations are unfounded and
not supported by the evidence at hand. The residential use is not
illegal, but rath!:r lawfully pre-existing and "legal" non-
conforming. As such, the use was subject to the previous non-
conforming zoning provisions as applicable, and is now subject to
the current non-conforming provisions of the LDC as applicable.
In addition, in response to the last sentence in the paragraph above,
gi ven the fact that the county records prior to 1960 were destroyed,
and that the County's building permit records prior to 1985 for
residential uses are incomplete and spotty at best, and given the
fact that the property appraiser's records indicate that numerous
building permits were obtained for the mobile home units and the
improvements thereto, there is no factual evidence that
improvements to the site, including placement, replacement,
maintenance and repair of the mobiles homes, were done without
Collier County review and approval.
I F. Conclusion
Blocker - Professional Planning Opinion
March 6, 2007
Page 20 of 21
In conclusion, it is clear that the residential use of the subject property was the
lawfully pre-existing and is legally nonconforming and as such, the continued use
is authorized by the LDC, with limitations on maintenance and repairs, and a
prohibition on alteration, expansion or replacement, except through the procedure
and conditions outlined in Sections 9.03.03.B.4 and 9.03.03.C.3.
I G. Summary of Robert J. Mulhere's Related Professional Experience
Mr. Mulhere received his undergraduate degree in 1977 (BA in Political Science)
from St. Michael's College in Winooski Park, Vermont. He received a master's
degree in 2001 (Public Administration) from Plonda Gulf Coast University. He
has been a member of the American Institute of Certified Planners since 1994,
and the American Planning Association since 1989.
Mr. Mulhere offers over 18 years of professional planning experience and
community services throughout Southwest Flonda. Mr. Mulhere is the former
Planning Director for Collier County Government, located in one of the fastest
growing regions in the country. He is considered a leader in his field, with
particular expertise in growth management, land planning, site development,
urban design, neighborhood planning, zoning regulations and ordinance writing,
conflict resolution, and public facilitation. During his tenure with Collier County
he was responsible for implementation of the Collier County Growth
Management Plan and the Land Development Code, including the process of
amendment and or interpreting these documents.
One very significant task that fell under Mr. Mulhere purvIew was oversight and
management of the County's efforts to address the requirements of a final
"noncompliance" order from the Governor and Cabinet dealing with future
development in Collier's vast eastern lands (broadly referred to as the Eastern
Lands Study). In April of 2001 Mr. Mulhere left the employment of Collier
County and began employment with the consulting firm of RW A, Inc. Collier
County then hired Mr. Mulhere as its lead plannmg consultant charged with
completion the Final Order requirements, including analysis, development of
Growth Management Pan (GMP) Goals Objectives and Policies (GOPs), and
development of implementing land development regulations (LDRs). That
process was bifurcated into two distinct geographic areas, which were eventually
identified as the Rural Fringe M,xed Use District (RFMUD) and the Rural Lands
Stewardship Area (RLSA). During the GMP and LDR development period
(between 2000 and 2004) Mr. Mulhere led numerous public meetings and
meetings with County staff and other consultants, culminating in the adoption of
innovative and award winnIng and incentive based strategies.
Blocker - Professional Planning Opinion
March 6, 2007
Page 21 of 21
Presently, in his capacity as Vice President of Planning Services for RW A, Inc,
Mr. Mulhere provides professional planning consultation services to a variety of
public and private sector clients on a wide variety of projects.
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FW: Blocker Update
luge 1 U1 1
FW: Blocker Update
HillerGeorgia
Sent: Friday, June 10, 2011 1:06 PM
To: RaineyJennrfer
From: Tim Hancock [mailto:Tim.Hancock@davidsonengineering.com]
Sent: Friday, June 10, 2011 9:31 AM
To: KlatzkowJeff
Cc: OchsLeo; CoyleFred; HillerGeorgia; rjohns; Jerry Blocker
Subject: Blocker Update
Jeff,
At the last BCC Meeting, Commissioner Coyle requested that the County Manager and the County Attorney bring
information back regarding items raised by Commissioner Hiller during the meeting, relating to the Blocker Code
Enforcement case, I believe his request was to do so at the "next meeting" I did not see this item on the agenda
for this coming Tuesday, so can you please tell me if this is scheduled to be discussed as requested or will it
occur at the meeting on the 281h, if at all.
I have plans to be out of town but will return for this Item if It is to be addressed on Tuesday, so I would greatly
appreciate a response today so I can make the necessary arrangements Thank you for your tIme and
consideration Jeff.
Tim Hancock, AICP
Director of Phtnlling
Tim@davidsonenQineerinQ.com
DE
DAVIDSON
. ',I I ~" r~
www.davidsonenQineerinQ.com
I)~nid~on Engineering. Inc.
3530 Kraft Hoad, Suite 30 J
"apt"" FL 34105
Phone 239.-134.(,0(,0 ('xL 2983
h" 239.-1.14,608../
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https://mail.colliergov.netlowa/?ae~Item&t=IPM.Note&id=RgAAAACBw7h YJwxISLoTg,., 6/13/2011
JONES
FOSTER
JOHNSTON
& STUBBS, FA.
Attorneys aod Counselors
Margaret L. Cooper
Direct Dial: 561-650-0464
Direct Fax: 561-650-0422
E-Mail: 111coopel@jones-rOSlerc0111
HagJcI CClllcrTnwcr. Suite 1100
505 South Flagler Drive
Wesl Palm Bcal:h. Florida J14111
relcphOll~ 1561} 659-:WOO
Mailfllg Athlrnl
!losl Onkc Box 3475
V/cst Palm Belich, j:[mid" 3J..W2-JH5
June 8, 2011
Via Federa/ EXOl'ess (lV/ellclosllres) &
Via E-Mail (Wit/Wilt e/lclOSllres)
Collier County Board of County Commissioners
3301 East Tamiami Trail
Naples. Florida 34112
A TTN: Commissionet Donna Fiala
Commissioner Georgia A Hiller, Esquire
Commissioner Tom Henning
Commissioner Fred W. Coyle
Commissioner Jim Coletta
Re: BlocI,er Mobile Home Pari,
1101 Alnchua Street, Immol,alee, Floridn
Lots 6, 7, 9, 9 lInd 10, Newmarket Subdivision
Dear Commissioners:
At your May 24, 2011 regular meeting, Commissioner Hillel, under Agenda Item 15E"
addressed that evidence (old zoning codes and maps from 1952) had been withheld from the
Blockers during code enfOIcement proceedings Commissioner Coyle requested that the County
Attorney and County Manager's Office investigate this and respond in writing. He stated that if
her assertions were true, then he would "back her" She is supporting the Blocker's request to
utilize the SIP plOcess to abate the zoning violation
The record, as shown below, supports Commissioner Hiller's statements.
2006 Blockcl' Rcquest and County Withholding Evidence of Old Codes
Jerry Blocker went to the County records department in early 2006 prior to the first Code
Enforcement Board hearing At that time, he was told by County statl that the old zoning maps
and codes no longer existed. At the April 27, 2006 code enforcement hearing, Inspector Dennis
Mazzone relied on a 1970 lax map which had later been overlaid with an Industtial zoning
designation in the area of the Blocker's property. The case, however, was prosecuted under the
current code The ptopetty in 1970 was zoned l-C-3, it was not until December 2, 1972 that the
property was rezoned to Industria\.
I+i lie/' , (..Jf"
Go>tll'flLl~5 i"'iI.~ MeetIng Date J2)!:li11
b,genda Item # ----------
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Presented y 0--'
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Collier County Board of County Commissioners
June 8. 201 I
Page 2
Mr Blocker put on the record his attempts to locate the older maps and codes He was told they
did not exist. At page 58 of thc tmnsctipt (Ex. I), Mr Blocker states:
He [Inspector Dennis Mazzone] mentioned that the zoning being
Industrial, which back in the 1960's, who knows what this property
was zoned Industr ial has grown around this parle This park has
been here since the 1960's
All the ordinances that Dennis was mentioning was of today's
ordinances. Back in the 1960's, what were the ordinances had
been. I mean, as far as what they consisted of
At page 60. Mr Blocker continued:
We all know that zoning on this property has changed a couple of
times or maybe numerous times Nobody has a record of a zoning
map in the '60's, whether - whether there was even zoning on this
piece of property at that time Who knows Their - their zoning
maps only go to the '70's. I went and personally and met with
some of the - some of the head gUYS in zonin~ and in the gtaPhics
department. And they laughed at me They said. good luck
You're not going to find anY kind of zoning that was - that we
have a record of back in the '60's. In yom list - the latest we gO
back is. like. in the '70's. he told me. Which zoning at the time,
Dennis Mazzone pointed out, was Industrial in the '70's, What
was the zoning in the '50's and '60's?
2007 Patrie!, White's Request and County Again Withholding
Evidence of 1952 Map lInd 1951 Code
Attollley Patrick White later appeared for the Blockers in the subsequent Code Enforcement
proceedings and made a motion for use of the SIP procedlIle to abate the violation I enclose a
copy of a letter dated September 19, 2007 from Patrick White to Susan Istenes making a public
records request for zoning regulations and maps from 1950 through] 970 (Ex. 2) I also enclose
a series of e-mails between Mr White and County employee, .James French. (Ex 2) These e-
mails document the County's response that it had no zoning maps on record going back to the
1950's
The motion for SIP procedme was heard by the Code Enforcement Board on November 29,
2007 Mr White put on the recotcl that. in response to a public document request for a 1952
Collier County Board of County Commissioners
June 8, 2011
Page .3
zoning map and old codes, the County one more time claimed none existed See page 16 of the
transcript (Ex. .3):
And the other thing I came before this Board and asked for last
month was an opoortunity to have a IJtrblic records request
responded to me by the County. It's been a cause of concern, not
only for the County, but for my client as well. And that's because
we meviouslv had a copv of a map that although dated 1952. we
couldn't tell vou when it was actuallv effective. We have been
thtoul?h the Clerk of Courts. all of their files. and mictofiche. and
we had one of their attornevs in the vault looking for zoning book
I. palle 1 that's SUDposed to exist. We have gone back to the root
of zoning regulations in this County, and we cannot find
anything. .
Em'ly May, 2011 Margaret Cooper's Request - Stonewalled by County Atto.-ney's Office
On May 3, 2011, 1 made a public records request to Jacqueline W. Hubbard, County Attol11ey,
advising that I would be traveling to Naples on May 5 to get copies. (Ex. 4) The items requested
were:
1. 1/26/01 Order to Correct Violation directed to Collins with
regard to the Shell Trailer Park property.
2 All historic and CUlTent zoninll. maDS and codes relatinll to
Shell Trailer Pmk.
.3 All surveys or evidence that show Shell Trailer Park
encroaching onto the adjacent junkyard or ROW easement
area
4 All written evidence showing that the County offered the
Blockers the Site Improvement Plan ("SIP") oppottunity.
5. All e-mails, memos, or other intra staff, communications by
and between Code Enfotcement Board and staff, or Board
of County Commission as other Board level persons
concerning the Shell Trailer Park property in any respect
including SIP availability, zoning change, code
enforcement, or GMP changes
Collier County Board of County Commissioners
June 8, 2011
Page 6
This is his third request in 2011 through legal counsel to the Board of County Commissioners to
allow him to abate the violations through the SIP procedure. (Ex. 8) To date, I have not had a
response either granting or denying a hearing
Public Document Request of Evidence of Simila.-Jy Situated Parks
I have asked the County for months for records for all parks that have received SIP approvals
and why they are treated different than the Blockers Mr Blocke, merely wants to be treated
equally with others who have non-conforming mobile home use,
We know of many others who have been granted this relief I enclose an Immokalee Housing
Initiative Status Report dated July 18. 2003 (Ex 9) There was an inventory of 72 mobile home
parks at that time in the lmmokalee area At that time, ten others already had approved SIP plans
liled wirh the County. Thirty-seven other ptoperty owners agreed to participate in the site
improvement process after the cut-off date Accordingly, we know of forty-seven mobile home
parks that participated in the site improvement planning process, Since 2003, there have been
more to get SIP approval - including one park owned by Mr Blocker's uncle in a commercial
zone,
At this point, I again make an official request lor public records for (a) the name and location of
each of these other parks; (b) what is the current zoning; and (c) what is a historical zoning on
each of these lorty-seven plus mobile home parks, I also request an explanation as to why they
were allowed to go through the SIP process that has now been denied the Blocker s
Conclusion and Request for Hearing for SIP
I might add that it matters not whether the old records were deliberately or inadveItently
withheld What malleI's to my clients is that they are entitled to abate the zoning violations via
the SIP ptocedure like everyone else. I see absolutely no reason to continue a mistake made in
2006 by a staff member acting on incorrect zoning information - other than being unreasonable
and uninir
Once again, I request that this matter be set ior hearing so that the Blockers may be given an
opportunity to obtain the SIP approval to abate the zoning violation.
We wish to thank Commissioner I-liller arld COlllmissioner Henning for their efforts in bringing
this mattet to light. I hope that Commissioner Coyle will be good to his word to "back"
Commissioner Hiller on this approval so that the zoning violation can be abated
Collier County Board of County Commissioners
June 8, 2011
Page 7
Thank you fOl your attention to this matter.
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, PA
By
MLC/dap
Enclosures
cc: JerlY B Blocker (via e-mail)
JeffKlatzkow. COIl/lty Attorney (via e-mail)
P:\Ul)cs\25139\fJOOO I \Iu\! ax47 f 4 doc
hee fl.: illilleri,]! evidence wilhhcld
Blocker Evidence of County Withholding Evidence
Index
I. First CEB Hearing
4/27/06
1
White Public Document Request ami Response
9/19/07
3. Second CEB Hearing
11/29/07
4. Cooper Public Document Request and Response
5/3/11
5. 1952 Zoning Map
1952
6. 1951 Zoning ('ode
1951
7. Immokalee Housing Initiative Status Report
711 X/03
X. Blocker Request for SIP Approval to BCe
12/3/07
9. Blocker Application for SIP approval to Staff and Rcfusal
12/22/1 0
10. Blocker Request to CloB for SIP approval
2011
11. Blockcr Requests to B( 'C for SIP appro\al
2011
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c....".......' ~ tJlee\\n9 Date
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Menda' - , ~U
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April 27, 2006
TRANSCRIPT OF THE MEETING OF THE
CODE ENFORCEMENT BOARD
NAPLES, FLORIDA, April 27, 2006
LET IT BE REMEMBERED, that the Code Enforcement Board,
in and for the County of Collier, having conducted business herein,
met on this date at 9:30 a.m., in REGULAR SESSION at the Collier
County Government Center, Third Floor, 3301 East Tamiami Trail,
Naples, Florida, with the following members present:
CHAIRMAN:
Sheri Barnett
Justine DeWitte
Jerry Morgan
Richard Kraenbring
Gerald 1. LeFebvre
George P. Ponte
Larry Dean
Kenneth Kelly
~
~
ABSENT:
David Cook
ALSO PRESENT:
Jean Rawson, Attorney, Code Enforcement Board
Michelle Arnold, Director of Code Enforcement
Shirley Garcia, Secretary to CEB
Page 1
CODE ENFORCEMENT BOARD OF COLLIER COUNTY, FLORIDA
AGENDA
Date: April 27, 2006, at 9:30 a.m.
Location: Collier County Government Center, Third Floor, 3301 East Tamiami Trail, Naples, Florida
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.
I. ROLL CALL
2. APPROVAL OF AGENDA
3. APPROVAL OF MINUTES - March 23, 2006
4. PUBLIC HEARINGS
A. MOTIONS
I. Motion for Re-He.ring - Steven Loveless CEB 2006-10
B. STIPULATIONS - (no requests submitted at the time of preparation)
C. HEARINGS
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I. CASE NO: 2006-04,.\.RE-HEARlNG)
CASE ADDR: 211844 ST. S.W. NAPLES, FL (FOLIO: 35751800003)
OWNER: RUSSELL & KA YDEE TUFF
INSPECTOR: SHAWN LUEDTKE
VIOLATIONS: ORD 04-41l0.02.06(B)(I)(A), 10.02.06(B)(I)(D), 10.02.06(B)(1)(D)(I)
DESCRIPTION: PROHIBITED CONVERSION OF A GARAGE INTO LIVING SPACE
WITHOUT THE REQUIRED COLLIER COUNTY BUILDING PERMITS.
J
2. CASE NO:
CASE ADDR:
OWNER:
INSPECTOR:
VIOLATIONS:
2006-09(CONT. FROM MARCH 23, HEARING)
1920 BETHANY PLACE, NAPLES, FL. (FOLIO # 74510520006)
KRlSTOPHER & CHRISTINE GOMERY
HEA TIlER GRIMSHAW
ORD NO 04-41 AS AMENDED, SECTIONS 10.02.06(B)(I)(A), 10.02.06(IXD)(I),
10.02.06(B)(I)(D), I04.1.! AND FLORIDA BUILDING CODE, 2001 EDITION, AS
AMENDED BY ORDINANCE 02-01, SECTION 104.1.3.5
DESCRIPTION: AN ILLEGAL ADDITION TO HOUSE WITHOUT HAVING FIRST OBTAINED ALL
REQUIRED PERMIT(S).
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3. CASE NO: 2006-13
CASE ADDR: 109INAGUA LN., BONITA SPRINGS, FL. (FOLIO # 54754120004)
OWNER: PHILIP & SUSAN LOYD
INSPECTOR: KEVIN HA YLESWORTH
VIOLATIONS: ORD NO. 04-41, 3.04.01, 3.04.02(B), 9.04.06(A-H) 10.02.03(A) (B), 10.02.06(B)(H)(I)
DESCRIPTION: VARIOUS STRUCTURES. FIXTURES & UNNATURALLY occURRiNG
VEGETATION WEST OF THE CCSL & WITHOUT REQUIRED PERMITS.
4. CASE NO:
CASE ADDR:
OWNER:
INSPECTOR:
VIOLATIONS:
DESCRIPTION:
5. CASE NO:
CASE ADDR:
OWNER:
INSPECTOR:
VIOLATIONS:
DESCRIPTION:
2J
2006-16
1101 ALACHUA ST., IMMOKALEE, FL. (FOLIO # 63864720000)
JERRY & KIMBERLEA BLOCKER
DENNIS MAZZONE
VIOLATION OF ORDINANCE(S) 04-41, AS AMENDED, SEC. \.04.00, SUB SEC'S.
\.04.01. PAR'S. A. BAND C, AND \.04.05, SEC. \.05.00, SUB SEe. \.05.01, PAR.-F,
SEe. 2.02,00, SUB SEC'S. 2.0201,PAR-D AND 2.02.03, SEC. 203.00, SUB SEC.
20303, PAR.-A, SEe. 2.04.00, SUB SEe. 2.04.03, PG. "LDC2:113", SEC. 2.05.00, SUB
SEe. 205.01, PAR.-A, SEe. 8.0800, PAR'S. BAND D, SEe. 9.03.00, SUB SEe.
903.01, PAR.-D ALSO: OCT. 1970 ZONING REGULATlONStlMMOKALEE AREA,
ARTICLE IV, SEC'S. 4.\, 42. 43, AND 4.4, ARTICLE VII, SEe'S. 7.1, AND 7.9, AND
ARTICLE X, SEe. 10.11, "I.C-3", PAR..2
UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE
OF INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I-C-3) WITHOUT
PRIOR COLLIER COUNTY ZONING AND PLANNING REVIEW, WITHOUT AN
APPROVED SITE DEVELOPMENT PLAN (SDP) , WITHOUT V ALlD COLLIER CO.
BUILDING PERMITS. PERPETUATING A USE INCONSISTENT WITH THE
COLLIER coUNTY GROWTH MANAGEMENT PLAN - IMMOKALEE MASTER
PLAN (GMP).
2006-17
t 101 ALACHUA S1., lMMOKALEE, FL. (FOLIO # 6386468000l)
JERRY & KIMBERLEA BLOCKER
DENNIS MAZZONE
VIOLATION OF ORDINANCE(S) 04-41, AS AMENDED, SEe. \.04.00, SUB SEC'S.
\.04.01, PAR'S. A, BAND C, AND \.04.05, SEe. \.05.00, SUB SEe. \.05.01, PAR.-F,
SEe. 2.02.00, SUB SEC'S. 2.02.0I,PAR.-D AND 2.02.03, SEC. 2.03.00, SUB SEe.
2.03.03, PAR.-A, SEe. 2.04.00, SUB SEe. 204.03, PG "LDC2:113", SEC. 2.05.00, SUB
SEe. 205.01, PAR.-A, SEC. 8.08.00, PAR'S. BAND D, SEe. 9.03.00, SUB SEC.
9.03.0\, PAR.-D ALSO: OCT. 1970 ZONING REGULATIONStlMMOKALEE AREA,
ART\CLE IV, SEC'S. 4.1, 42, 4.3, AND 4.4, ARTICLE VII, SEC'S. 7.1, AND 7.9, AND
ARTICLE X, SEe. 10.11, "I-C-3", PAR.-2.
UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE
OF INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I-C-3) WITHOUT
PRIOR COLLIER COUNTY zoNING AND PLANNING REVIEW, WITHOUT AN
APPROVED SITE DEVELOPMENT PLAN (SDP) , WITHOUT V ALID COLLIER CO.
BUILDING PERMITS. PERPETUATING A USE INCONSISTENT WITH THE
COLLIER COUNTY GROWTH MANAGEMENT PLAN - lMMOKALEE MASTER
PLAN (GMP)
2006-18
1101 ALACHUA S1., IMMOKALEE, FL. (FOLIO # 63864760002)
JERRY & KlMBERLEA BLOCKER
DENNIS MAZZONE
VIOLATION OF ORDINANCE(S) 04-41, AS AMENDED, SEC. 1.04.00, SUB SEe'S.
\.0401, PAR'S. A, BAND C, AND \.04.05, SEe. \.05.00, SUB SEe. \.05.01, PAR-F,
SEe. 2.02.00, SUB SEe'S. 2.02.01,PAR.-D AND 2.02.03, SEe. 2.03.00, SUB SEC.
2.03.03, PAR.-A, SEe. 2.04.00, SUB SEe. 2.04.03, PG. "LDC2:113", SEC. 2.05.00, SUB
SEe. 2.05.0\, PAR.-A, SEe. 8.08.00, PAR'S. B AND D, SEC. 9.03.00, SUB SEC.
9.03.01, PAR.-D ALSO: OCT. 1970 ZONING REGULATlONStlMMOKALEE AREA,
ARTICLE IV, SEe'S. 4.1,4.2,4.3, AND 4.4, ARTICLE VII, SEe'S. 7.\, AND 7.9, AND
ARTICLE X, SEe. 10.1 \, "I-C-3", PAR-2.
UNLAWFUL AND INAPPROPRIATE DEVELOPMENT AND RESIDENTIAL USE OF
INDUSTRIAL ZONED PROPERTY (PREVIOUSLY ZONED I-C-3) WITIiOUT PRIOR
COLLIER COUNTY ZONING AND PLANNING REVIEW, WITHOUT AN APPROVED SITE
DEVELOPMENT PLAN (SDP) , WITHOUT VALID COLLIER CO. BUILDING PERMITS.
6. CASE NO:
CASE ADDR:
OWNER:
INSPECTOR:
VIOLATIONS:
DESCRIPTION:
PERPETUATING A USE INCONSISTENT WITH THE COLLIER COUNTY GROWTH
MANAGEMENT PLAN _ IMMOKALEE MASTER PLAN. (GM?).
7. CASE NO: 2006-20
CASE ADDR: NAPLES SOUTH PLAZA 4905 RATTLESNAKE HAMMOCK RD., NAPLES, FL.
(FOLIO # 55151440001)
NAPLES SOUTH PLAZA-ZACH BERG, REG. AGENT
JOHN OLNEY
ORD NO 04-41 AS AMENDED, SECTIONS 2.02.03 AND ORD. 99-51, SEC. 7, AS
AMENDED TO 05-44, SEC. 7.
DESCRIPTION: ILLEGAL LAND USE, THE STORAGE OF UNLICENSED AND/OR INOPERABLE
VEHICLES ON PROPERTY ZONED C-4, (GENERAL COMMERCIAL), WHICH IS
NOT A PERMITTED USE OF C-4 ZONING
THE PROHIBITED ACCUMULATION OF LITTER ON THE PROPERTY KNOWN
AS NAPLES SOUTH PLAZA (RECURRING PROBLEM)
OWNER:
INSPECTOR:
VIOLATIONS:
8, CASE NO: 2006-23
CASE ADDR: 5331 GEORGIA AVE., NAPLES, FL. (FOLIO # 62251200008)
OWNER; AUGUSTIN & BERTHA CISNEROS
INSPECTOR; JOSEPH MUCHA
VIOLATIONS: ORD NO 04-41 AS AMENDED, SECTIONS 2.02.03, 1.04.01
DESCRIPTION: ILLEGAL LAND USE OF AREA ZONED RESIDENTIAL SINGLE FAMILY. THE
OWNER OF THIS RESIDENTIALLY ZONED PROPERTY IS RUNNING AN
AUTOMOBILE PAINTING BUSINESS OUT OF THE GARAGE OF HIS HOUSE.
TIUS TYPE OF LND USE IS PROHIBITED IN A RESIDENTIALLY ZONED AREA.
5.
NEW BUSINESS
A. Request for Imposition of Fines/Liens
;;;i
1. Bce vs. Paul & Kelly Byrd
2. Bce vs. Gary D. Wilson
3. Bee vs. JameS C. & Sherry Marshall
CEB No. 2004-10
CEB No, 2004-28
CEB No. 2004-72
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6.
OLD BUSINESS -
7. REPORTS-NO REPORTS
8. COMMENTS
9. NEXT MEETING DATE
MAY 25, 2006
ili:i
20
10. ADJOUR!'!
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April 27, 2006
,
,
.
MR. KRAENBRING: Aye.
MR. MORGAN: Aye.
MR. PONTE: Aye.
CHAIRMAN BARNETT: Aye. Any opposed?
MR. DEWITTE: Aye.
MR. LEFEBVRE: Aye.
MR. DEAN: Aye.
CHAIRMAN BARNETT: 4-3, I think. Show of hands. Those in
favor?
(Indicating. )
CHAIRMAN BARNETT: Those opposed?
(Indicating. )
CHAIRMAN BARNETT: There was no violation. Case
dismissed.
MR. KELLY: Madam Chair, before we move on, I have one
question.
CHAIRMAN BARNETT: Sure.
MR. KELL Y: What happens if the Tuffs decide to sell that home
in the --
THE COURT REPORTER: Would you speak up, please.
MR. KELLY: I'm sorry. What happens if the Tuffs sell the
house and a code enforcement investigator's called out. Is there a
chance that a case will be brought against the new owner in front of
this board?
MS. ARNOLD: No. There's been a decision made that there's
no violation.
MR. KELLY: Okay.
cHAIRMAN BARNETT: Okay. Do you need a break?
THE COURT REPORTER: (Indicating negatively.)
CHAIRMAN BARNETT: The next case would be Case No.
2006-13, the Loyds. Or did we -- we continued that one; correct?
So we're up to 2006-16, Jerry and Kimberlea Blocker versus
Page 41
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April 27, 2006
Collier County.
MR. DEAN: And we're going to combine the cases?
CHAIRMAN BARNETT: And we're going to combine the
cases, 2006-16, 2006-17 and 2006-18; is that correct, Michelle?
MS, ARNOLD: Correct.
MS. GARCIA: At this time Shirley Garcia, Collier County Code
Enforcement, secretary to the board.
I'd like to enter into the County'S Exhibit A, CEB Case Nos.
2006-16, 2006-17 and 2006-18, Collier County Board of County
Commissioners versus Jerry B. and Kimberlea Blocker. The violation
of Ordinances 04-41 as amended, Section 1.04.00, Subsections
1.04.01 pAR's A, Band C. And 1.04.05, Sections 1.05.00
Subsections 1.05.01 PAR-F, Section 2.02.00, Subsections 2.02.0\
pAR-D. And 2.02.03, Section 2.03.00, Subsection 2.03 .03 PAR-A.
Section 2.04.00, Subsection 2.04.03, page LDC 2:113, Section
2.05.00, Subsection 2.05.0 I PAR-A, Section 8.08.00, pARs B and D,
Section 9.03.00, Subsection 9.03.0 I, pAR -D. Also October 1970
zoning regulations, \mIJlokalee area Article IV, Sections 4. I, 4.2, 4.3
and 4.4, Article VII, Sections 7.1 and 7.9. And Article X, Section
10.11,1 through C-3 PAR-2.
I believe for all three 2006-16, 17 and 18, the violation of
ordinances are concurrent. The differences are the locations.
Description of violation is unlawful and inapPropriate development
and residential use of indnstrial-zoned property - properly previoUSly
zoned l-C-3 without prior Collier County Zoning and planning
review, without an approval Site Development Plan, SDP, without
valid Collier County building permits, perpetuating a use inconsistent
with a Collier County Growth Management Plan, Iromokalee Master
Plan GMP.
The location ofthe addresses where the violation exists are Lot 8,
Block 48, New Market Subdivision, ID No. Folio No. 63864720000,
and _ and Folio No. 6386468000 I. The second location on 2006- I 7
Page 42
April 27, 2006
is Lots 6 and 7, Block 48, New Market Subdivision, Collier County
record. The address is 1101 Alachu> Street in Irnmokalee, Shells
Trailer Park.
CHAJRMAN BARNETT: Do I have a motion to accept Collier
County .- you're not fmished?
MS. GARCIA: I have one more Folio for 2006-17.
CHAIRMANBARNETT: Sorry.
MS. GARCIA: Or 2006-18.
CHAIRMAN BARNETT: Okay.
MS. GARCIA: It's about 100 pages long.
And on Folio __ the location of violation is 2006-18 is Folio No.
63864760002, Lots 9 and 10, Block 48, New Market Subdivision.
The OlllOe and address of the persou of violation is Jerry Blocker and
Kimberlea Blocker. The date _, the violatiou first observed was
December 16th of2005. The date and person in charge when the
notice of violation was given is Januar)' 23rd, 2006. And the date on
which the violation was to he eorrected was April 24th of2006. The
date of the reinspection was March 13th, 2006. And the results of the
reinspection was iliat ilie violation still remained and ilie owner
expressed an unwillioguess to comply via our personal phone
conversation.
cflAIRMAN BARNETf: Okay. Now, do I have a motion to
accept the COUll!)"S packets in Cases 2006-16, 2006-17 and 2006-18?
MR. pONTE: I move that the COUll!)"S package be accepted.
MR. DEWITTE: I'll second.
CHAIRMAN BARNETT: All those in favor?
MR. DEWITTE: Aye.
MR. MORGAN: Aye.
MR. KRAENBRlNG: Aye.
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
Page 43
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Apri1 27, 2006
MR. DEAN: Aye.
CHAIRMAN BARNETT: Any opposed?
(No response.)
CHAIRMAN BARNETT: May I have the two individuals sworn
in, please.
(The oath was administered.)
MR. MAZZONE: Good morning. For the record, my name is
Dennis Mazzone. I'm an investigator with the Collier County Code
Enforcement.
To begin the broad scope ofthis -- the time that took place to
investigate this case along with the other cases that were part of the
initiative warrants mention of a lot of history behind these cases.
Today's case is one of70-plus case studies that resulted from a
1999 survey taken of existing mobile home parks that were identified
in the Immokalee housing initiative project. This project sought to
upgrade existing mobile home parks by providing incentives to 1he
respective owners. Collier County Code Enforcement personnel
joined wi1h our planning staff in an effort to identify and review all
mobile home parks in the Imrnokalee area. This project sought to
upgrade the existing parks and -- I said that previously. I'm sorry.
The park owners were given an August 2003 deadline to submit a
site improvement plan proposal to Collier County Planning personnel.
Collier County staff provided public and one.,.on-one type
meeting sessions between all of the Immokalee mobile home park
owners. On January 7th, 2002, or nine months prior to the time that
the Blockers acquired the properties in question, Mr. Kenneth Blocker
and Mr. Jerry Blocker attended one ofthese meetings at which a site
improvement plan review standards for future use of mobile home
parks in their possession was explained in detail. These same
standards that were explained to the Blockers would also apply to all
the other mobile home parks that were located as part of this initiative
project and would be explained to other park owners in the same
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manner.
Having full knowledge of ilie standards by having been at iliis
meeting wiili our __ our personneliliat explained it to the Blockers, ilie
Blockers chose to acquire ilie properties in question in October of
2002. The previous owners are Mr. and Ms. Collins. And iliey
received legal notice for iliese very same violations in October 2oo\.
The notice iliat iliey received was from a prior investigator --
investigator. Her name --I'm going to spell her name to you. Evelyn
Claudio, C_l-a-u-d-i-o.
I'm going to pnt the notice that she served to ilie Blockers or to
ilie Collins __ I'm sorry __ on ilie overhead. Let me just say before I do
iliat, ilie picture that's on ilie viewer noW showS ilie location ofiliis
properry. It's the highlighted area aronnd the property. I'm going to
point to it. It's surronnded by industrial uses, one being an airport.
This __ the property iliat ilie pen is pointing to is a -- a storage area for
chemicals iliat's currently active and fertilizers used for farming
purposes. And allilie surrounding properties around it are eiilier
packing houses or someiliing of iliat nature of an industrial use.
This next property is a junkyard use. A use iliat we would allow
in an industrial area. I'm going to shoW you a larger version of that.
In this __ in this area iliese are ilie --iliat is ilie mobile home area, the
three parcels in question. And then immediately west of iliese mobile
homes is currently an active junkYard facility. The -- the junkYard use
creates the situation that at best is very poor and perhaPs not that safe
of a use right next to occupied dwellings.
Some ofilie dwellings are, in fact, located in such a manner iliat
iliey extend over and onto ilie junkYard easement area. Much of ilie
debris could be if you opened your bedroom window from some of
iliese units, because they don't meet ilieir sethack. could be touched by
a child or a person if you were just to open up your windnw. It's -- it's
piled in such a manner where we have a case -- we opened a case on
ilie __ on iliis particular property, but it's been -- it's been let go for a
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April 27, 2006
while in that it's not been brought to our attention. We have a difficult
time monitoring all the industrial uses in the county. And we -- we
have a staff that only allows us to -- to look at cases as they're reported
or if we are pre __ active on these cases. It takes quite a bit oftime to
get them into compliance.
This particular yard is currently under our investigation. We're
trying to correct some of the situation. There are thousands of cars
piled. At this point they're now piled one on top of another
immediately behind these mobile homes. And thousands of tires piled
in a __ in a __ in a way where you can actually touch them if you stood
at your backyard and in some cases by opening the window.
I'm going to point to one of the mobile homes that is located in a
manner where it's encroaching. That particular mobile home is -- is
looking at __ is looking at this as their -- their backyard. This is --
these are just but a few of the hundreds of cars that align the back
property line to this property. And the fact that we have an industrial
use to the rear of this -- this is also industrial-zoned property. Of
course, that's why we're here. But the fact that these are not uses what
you would expect to be in harmony with dwelling use of any land
presents some sort of a problem, of course, to the occupants.
The people that occupy these mobile homes, many of them are
migrant workers. They have children. They have families. They don't
have a place where they can enjoy the freedom of playing and
enjoying their __ a yard area where they can relax after work. They're
faced with neighbors that are all of an industrial type nature. They
have to walk to their shop -- shopping or drive to shopping which isn't
very far, but it's along New Market Road. And the area surrounding
this particular subdivision was never developed for -- never developed
in a manner that we, the county, would -- would allow for pleasant
residential use.
I'm going to put on the screen Ms. Claudio -- Claudio's notice.
This notice was served on the 10th day of November 2001. And Code
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April 27, 2006
Enforcement Investigator __ Investigator Claudio informed the -- the
Collins of the fact that they -- that their property was in violation.
And the Collins came 10 Ms. Claudio and presented her with
information that __ to lead Ms. Claudio to believe that they were going
to pursue a site improvement plan to rectify this problem to become
part of the plan of making these residences legal by our standards or
attempting to. Part of that procedure would have required the Collins
to rezone tbis property so that they could tben be considered for
occnpying it with dwellings if -- if the rezone went through. And if
they were considered for that, our planning department would have to
theo make some judgments as to hoW many mobile homes we would
alloW per parcel.
These parcels are oot large. Together, two of them that are
joined together measure 200 by 200. The one parcel that is -- stands
alone is 100 by 200. And then there's a third parcel that also measures
200 by 200. Our land density, the use of these properties for
residential dwelling, is something other than what's represented on the
property today. And our planning people would have to work with,
noW currently with the Blockers, but would bave had to work with tbe
Collins back then 10 make this property ready for dwelling occupancy
if we accepted a rezone on this property.
Without ever having reached the revieW process for their -- their
site development plan, the Collins were proposing they were going to
present to Collier County, they sold this property to the BlOCkers.
According to Investigator __ Investigalor Clandio according to her
notes, that is, the Blockers met with her in January 200310 discusS the
land-use violations in question.
At this meeting --I'm sorry. This is a meeting between the
Blockers. After they sold the property to the Blockers, according 10
the investigator's notes, the Blockers met with Ms. Clandio in 2003 10
discuss the land-use violatioUS in qnestion today. At that meeting Mr.
Jerry Blocker stated he intended to contact our planning department in
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March of 2003 so as to arrange for a preapplication meeting so that
they, the Blockers, could then discuss the feasibility of further
developing this land and utilizing it for the residential use that's on it
today rather than it being reverted back to industrial use as it -- as we
__ what we think is lawful.
In researching the Collier County Zoning District history, we
confirmed that Collier County in development standards -- land
development standards and land-use requirements never allowed for al
single family or mobile home dwelling use of this industrial-zoned
property in question. I have a -- a zoning map which I want to enter as
an exhibit and it's dated February 3rd, 1970. It's a certified map that I
acquired from our archives on the fourth floor of this building. And
the map shows an industrial zoning designation on these parcels. If I
may show you.
At this time I'd like to introduce this as an exhibit. I believe it
would be Exhibit B.
CHAIRMAN BARNETT: I need to hear -- we'll accept this
exhibit.
MR. LEFEBVRE: I make a motion we accept Exhibit B from
Collier County.
MR. PONTE: Second.
cHAIRMAN BARNETT: All those in favor?
MR. DEWITTE: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
cHAIRMAN BARNETT: Any opposed?
(No response.)
MS. ARNOLD: Ms. Chairman, can I ask that all of the items
/
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April 27, 2006
that are going to be here forth put on the visualizer be entered in as
one exhibit of the county's after instead of each separately?
CHAIRMAN BARNETT: You want to put them all under as
Exhibit B?
MS. ARNOLD: Yeah. After he's all done.
CHAIRMAN BARNETT: Okay.
MR. MAZZONE: Along with this -- this zoning map, I have a --
I've made copies of the 1965 requirements for land development in
Collier County. This information is pretty pertinent to this case. I
have __ I've made ample copies so that everybody could have oue, if!
may.
CHAIRMAN BARNETT: Thank you.
MR. MAZZONE: Please, if we -- if we look at this document,
we can see that this is __ these are the Collier County regulations for
zoning. If we turn to page 1 under Section l, Definitions, and turn
then just to see that that is definitions. Tum then to page 3 which
would be the next page, you could say that this was a brochure. And
when copying it two pages appear on one sheet. So page 3 the
definition for "dwelling" is and I'll read it. (As read): A house, hotel,
apartment building or other building used primarily as a place of
abode except that the word "dwelling" shall not include trailer camps.
Ifwe turn to page 8, the definition of a trailer park (as read):
Any lot or plot of ground on which accommodations are provided for
two or more trailers or house cars used by transients as living or
sleeping quarters.
And on that same page if we look at Section 2 or, actually, it's
page 9, Section 2, District Boundaries. If we look at the district
boundaries and we look under the classifications for -- for residential
dwelling and we go through these pages and read anything from Rl
right on through to R3 residential multi-family residential district,
never is a mobile home type dwelling mentioned as an allowed use.
In fact, if we just turn one page to 10 for single-family district
'-
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April 27, 2006
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regulations No.5, it states (as read): No tents for living purposes,
house cars or mobile homes of any type shall be permitted.
This statement rings true and is -- is duplicated throughout all of
these residential uses according to this 1965 ordinance. Until we get
to the R4-A and R4 which are mobile home districts. And where that
is mentioned that would be page 27.
And on page 27, paragraph 8R4, zone shall not be permitted
adjacent to any zone higher than R3. Minimum size ofR4 area shall
be ten acres. Under Section 6, Use Regulations, No.3, this area is not
to be used as a __ as a commercial trailer park. If we look over at page
26 which is right next to this 27, No.5, under Area of Regulations
reads (as read): Only one mobile and/or trailer home shall be
permitted on a lot.
These lots consist of more than one mobile home. For instance,
Lots 6 and 7 is comprised of 12 dwellings total. Lot 8 is comprised of
ten dwellings. And lot -- Lots 9 and 10 are comprised of six dwellings.
If this were permitted as a -- as a labor camp in Immokalee,
which it is, the permit requirements by the department that -- that
issues those permits are such that they don't address Collier County
land-use regulations as to setbacks and placement or density. They
don't even look at the zoning designation. They simply are permitting
the migrant activity and that use for migrants to occupy whatever
dwelling might be there. They're not looking into the history or the
prescribed use ofthat land be it industrial or commercial or residential.
They're looking at the type of structure that they're permitting and the
__ the health-related aspects to that structure, that it be sound, it be safe
to their standards, not necessarily to the county's standards.
Also the use of the inappropriate residential dwelling use of the
properties in question have been continuously assessed as -- as a lesser
use because it is not being -- the space is not being occupied for
industrial use. It's being assessed for a lesser use and has been
throughout the years. Industrial -- as a result, these properties have
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received a tax advantage of a 50 percent minus factor or an $0.88 per
square foot rate in comparison to a standard $1.75 per square foot rate
assessed on industrial property. This results in about a $550 savings
per year per parcel that's being taxed.
On page 29 of these regulations, Item No.8 reads (as read): R4A
zone shall not be permitted adjacent to any zone higher than R3.
Minimum size ofR4A area shall be ten acres; however, where
combined with R4, the total area of both must not exceed ten acres.
And it goes into speaking of lot size. It's -- it's pretty specific that
even back in the '60s, Collier County had a plan as to wherethey
wanted these types of subdivisions or communities for mobile home
occupancy to be located. And it was not in an industrial district. That
doesn't mean that Collier County back in the '60s or in the '70s didn't
issue permits for activities on these properties that might have been
relative to some sort of dwelling use. We -- in Collier County even
today, of course, we __ we allow for caretaker dwelling use in -- in our
industrial areas.
Historically in Immokalee we've -- we've grown, of course, but
years past we probably had two people, perhaps -- I know the
Blockers __ Blockers can speak to this better than I can, but I do recall
being one of two people under -- in our employment with code
enforcement having been stationed up in Immokalee back in the '80s.
We have progressed since then. We were able to address these--
these problems as they come up.
The reason for the permit process certainly is so that -- but part of
it is so that we are able to keep track of what kind of structures we
have on these properties and how they've been located as far as
setbacks and for safety issues and fire-related issues. And, therefore,
if they are legally placed there, we can then issue future permits. We
could issue one today without going through a zone change in order to
make that legal issuance of a permit.
If somebody had to upgrade these mobile homes, which if they
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April 27, 2006
were placed there back in the '60s or the '70s, they certainly have a life
expectancy. We don't expect a -- a metal structure -- if you parked
your Buick out there, we wouldn't expect it to be out there through all
these hurricanes and exposed to the elements and have no wear on it.
Same thing goes for a mobile home or any residence. If properly
permitted they can then come into upgrade these facilities with Collier
County's blessing and we have a way of making the property safe for
our residents.
In these cases without going through the proper channels and
without making this so that this -- a use that isn't allowed on this
property, we cannot legally issue a permit. If a permit is issued, it
would be issued in error. We do have clauses in our LDC that address
permits being issued in error but, nevertheless, we don't like to do that.
It only adds to the problem.
And in this case these properties have been occupied for years.
The __ our Growth Management Plan is not one that should be taken
lightly. It's one that addresses a good healthy growth. And -- and we
would hope that our citizens would participate in it. Those that are
housing other people as tenants would acknowledge the fact that we
want to make this housing better for them, not status quo as it was
back in the '50s, '60s and '70s, but we want to be more advanced than
that. But we have something more to offer the people visiting Naples
as laborers or people that want to live here. . We have a responsibility
to them. And that's why we're here with this case.
If we go to page 44, Section 14, Enforcement Remedies, it states
that (as read): These violations shall be administered by the zoning
director who shall issue permits and collect permit fees. Request for
permits shall be accompanied by a statement of location on lot and
general plan showing general appearances, proposed structures.
There's a reason for that. We -- we -- we probably ask for a lot more
than we got throughout the years, but there was a reason for asking for
this information. And that was for the very same reasons I just
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explained.
We had a __ we had a plan in mind back then. We have a plan in
mind now. We're not here to penalize anyone, but we certainly want it
so that we take the initiative project and we recognize it for what its
worth is. And we're trying to correct whatever situations haven't been
addressed in the past by now bringing these code cases before you,
because we must.
The time that was allowed to the various park owners to bring
these cases before planning has lapsed. There was a time when public
hearings and sessions were held for all the property owners and they
were expected to attend these meetings with an open mind and
hopefully participate as a community. We've gone past that time. The
only way we can now address these matters is by bringing these cases
to the board and you deliberating on them and then we can proceed by
going forth with the information and going for a zone change or going
for a site improvement plan if -- if that is something that's in the cards
for this property.
Also, you have in your packet the 1970 ordinances for Collier
County. The areas that are of particular importance to you folks
would appear starting on page 16 which describes uses that are
allowed in specifiC zoning districts. Article No.7 on page 20 makes
reference to nonconforming lots and nonconforming uses. Well, a
nonconforming lot, a legal nonconfonning lot would be a use that was
legal when it was placed on that property. If there -- if there is no
legality to the use because it's foreign to the zoning district, then there
is no legal nonconformity -- no legal nonconforming status to that
. particular parcel.
If we turn to page 24 ofthe 1970 ordinance under Section 7.9,
Termination Requirements For Certain Nonconformities, it states (as
read): Nonconfonnities not involving the use of a principal structure,
i.e., open storage building, supplies, vehicles, mobile homes, trailers,
implement and machinery storage signs, bill boards, junkyards,
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commercial animal yards and the like, shall be discontinued within
one year of the effective date of this ordinance or amended or
amendment. And that was stated on page 24.
Under Article XI, Schedule of District Regulations, page 41,
Section 10.8 under the Designation of Mobile Home, Travel Trailer
and Travel Park District, this is -- this is the designation where we see
a mobile home use allowed. At the very bottom of No. 2-A it reads
(as read): Mobile home parks with on-site management which may
contain mobile homes, travel trailers, pick-up coaches and motor
homes one per lot. Again, they're being consistent with the 1965
regulations. The regulations really haven't changed through the years.
There are minimum yard requirements that you'll see on page 42
and setback requirements. And by these photos and by going to the
site, one can see that these requirements never were met. That's all
part of the permitting process. If a permit's issued, there's a follow-up
inspection. And hopefully we -- we correct situations like this before
we have to come to a board by looking at these matters.
Page 48 of this document, Section 10.12, mentions industrial
districts which is different than the mobile home district that we were
previously speaking of. And under Principal Use, I'll read, that's
paragraph 2-A, Principal Use (as read): Manufacturing, wholesaling
storage, processing, canning, packing, mining, extracting or similar
uses that are not of obnoxious or offensive by reason of the emission
of odors, fumes, dust, smoke, noise, vibration, radio -- radio --
radioactive waves or substances and that do not possess abnormal
explosion __ explosion hazards. Wholesale storage of gasoline, liquid
petroleum, gas, oil or other inflammable liquids or gas but not located
within 500 feet of the nearest residential district, single family,
multi-family and mobile home district.
I think they're pretty specific in this ordinance. This ordinance is
when we refer to in our notice when we -- when we approached the
Blockers with our notice of violation along with our most current land
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development code of 04-41 and the sections that have been recited to
you. And the notice that -- that is before you was prepared in
December 2005. I acquired a case from Investigator Claudio because
she had left our employment.
I prepared an updated notice and requested our legal services
personnel to review it and they did and it met legal sufficiency. On
January 23rd, 2006, Collier County Code Enforcement Supervisor
Jo1m Marsh and myself met with owner Jerry Blocker, his brother.
Ken Blocker, Jr., and his father Ken Blocker, Sr., at their 1031 West
Main Street, Immokalee, Florida place of business. I'm going to
display the notice that we served -- we attempted to serve the Blockers
at that time.
On the __ on the bottom of this notice you're going to see that
there's a notation, "refused to sign." And that's -- that was the result of
our visit. During this meeting 1 provided Jerry Blocker a copy of the
notice of violations and all the appropriate ordinances and related
sections and discussed all of that with them in detail.
When requested Mr. Blocker refused to sign an
acknowledgement that he was in receipt of this infonnation. And 1
had Code supervisor Marsb initial the violations. That's the initial
you'll see on there. So that was a method of serving notice without
wasting a whole lot of valuable time. We wanted this infonnation to
be in the Blockers' possession. The notices -- the notice was
witnessed as being unsigned and Mr. Blocker, Sr., expressed an
unwillingness to want to cooperate in this matter mentioning that his --
his acquiring this property was important to him. And he - and 1 --
and 1__ he made reference to it and 1 quote as being his "cash cow."
Something that perhaps would be a bit offensive in this matter.
I returned to Naples, our Naples office, and I mailed the same
notices to the Blockers certified mail. They had to receive this with
good service and we wanted to make sure they did. And that certified
mail was sent through successfully. We sent it to Jerry and Kim
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Blocker at their 1830 16th Street Northeast, Naples residence. I also
phoned Jerry Blocker and provided him with a phone number for our
planning department encouraging him to contact our planning
department to inquire into the necessary zone change and any other
information he may need to prepare himself to come before this board
or to prepare the property so that he can come into compliance.
On February 6th, 2006, I prepared and sent a letter to Jerry and
Ken Blocker. And the letter expressed a need for our open dialogue.
We've not heard from the Blockers and we want to keep this running
dialogue between us. We find a need for that. We have to work
together however this case is aired. This property is not going to fix
itself. We need to work together on this certainly.
We also mentioned our willingness to assist in any way we could.
And I included mention of ten local agencies that could assist in
fmding alternative housing facilities for the Blockers' tenants if it
came to that. We're trying to give the Blockers a heads up. Ifit
means removal of any of these mobile homes or vacating them, we
want to work together with them. We want to give them ample time
to do what has to be done. And since the year 2000, we've been trying
to encourage first the Collins family and now the Blocker family
who've purchased this to -- to get these properties and the property --
the tenants on these properties alerted to the fact that there's a
problem.
On April 14th, 2006, I received -- received a phone call from
Jerry Blocker. And I explained the county's position on inappropriate
use of industrial-zoned property. And I, again, repeated the fact that
we would have to discuss this with our planning department as to what
all is involved as far as a zone change. And I also suggested to Mr.
Blocker that he or he and his representative come into our office and
discuss the signing of our stipulation agreement which we have. They
didn't want to do that. And, again, we asked that same question of the
Blockers today. And they -- they, again, did not want to participate
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with signing that form.
I have one more photo -- photo I would like to put up on the
screen, please. This is the overview of the three parcels that are
outlined in yellow along with a very active junlcyard immediately to
the west ofthis property. I'm going to put up two more photos. I have
several. I'm going to submit all the photos as -- as evidence. We're
going to put up a couple more to show you that this is what is
immediately to the west of this property. And this is not the worst --
the worst of the debris.
I think it's realistic to note that we are in an industrial district.
Industrial uses are going to expand. They might change. They might
become more progressive and developed so that they're cleaner, but,
nevertheless, we allow certain activities in this district, but the misuse
of the property by placing residents in there is one that certainly we
want to __ we want to discourage that. We want to fix it and that's
why we're here today.
Thank you, again. I want to enter these photos as a part of our
exhibit, ifl may.
cHAIRMAN BARNETT: I think we already kind of did that in
your B.
MS. GARCIA: I'm sorry. Chairman, I'd like to enter for Mr.
Blocker his Exhibit A through H. I believe I put packages on--
cHAIRMAN BARNETT: Okay. Before we do that, our court
reporter is asking me for a little bit of a break.
MS. GARCIA: Okay.
CHAIRMAN BARNETT: SO I'd like to give a five-minute break
before we start on your side of the case. We will be back at 11: 3 9.
(Short recess was taken.)
CH.AJRMAN BARNETT: We need to go ahead and call the
meeting back to order. Did you want to --
MS. GARCIA: I'd like to enter an exhibit on behalf of the
respondents, Mr. Blocker, in Cases 2006-16, 2006-17 and 2006-18.
Page 57
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April 27,2006
It's Exhibits A through H with packets on each board members --
CHAIRMAN BARNETT: Okay. Do I have a motion to accept
the Respondents Exhibits A through H?
MR. DEAN: Motion to accept.
MR. LEFEBVRE: Second.
CHAIRMAN BARNETT: All those in favor?
MR. DEW1TTE: Aye.
MR. MORGAN: Aye.
MR. KRAENBRING: Aye.
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
CHAIRMAN BARNETT: Any opposed?
(No response.)
CHAIRMAN BARNETT: Okay. Yes, sir.
MR. BLOCKER: My name is Jerry Blocker. Start off with just
answer a few of his questions before I start my presentation. He
mentioned that the zoning being industrial which back in the '60s, who
knoWS what this property was zoned. Industrial has grown around this
park. This park has been here since the '60s. And I'll show you proof
of that in my packet.
But also the encroachments he was mentioning about the lot
lines, the lot lines on the aerials are incorrect. They're not -- they're
not accurate. I've got actual surveys and things like that that show the
actual lot lines. There are some right on the lot line, but there's no
encroachment which I didn't bring with me today, but I have proof of
that. Let's see.
All the ordinances that Dennis was mentioning was oftod.ay's
ordinances. Back in the '60s, what were the ordinances have been, I
mean, as far as what they consisted of.
Also the reason for refusing to sign his notice of violation at the
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time we had om meeting, which I never had any prior meetings with
Ms. Ctaudio, whatever he's saying here. I spoke to a gal on the phone
and I don't remember her name at that time, but I never had a sit-down
meeting with anybody about this. The reason for -- for refusing to
sign his NOV is you see as he mentioned there was two violations,
NOV s given. One was given to me in 2006 on the date here, January
23rd of 2006, where we sat down nn onr meeting. That was the -- that
is my first notice of violation I've ever received on this piece of
property .
Back in 2001 __ October 22nd, 2001, Mr. and Ms. Larry Collins
was given a notice of violation. They were given three options.
Number one, the option, I've got it here. I don't know if you guys --
I've got it in the packet here. I could pass it out to you if you'd like to
see it, but I'll read it off to you. They were given three options at the
time. They were __ they were given an option to obtain a site
improvement plan. They were given an option to rezone the property.
Or they were __ they were given a option to use the zoning as what is
__ what is addressed, what the zoning is on the piece of property.
I was given one option. I was given an option to remove -- to
obtain a demo permit and that's all the option I was given. That was
the reason I refused to sign what he'd given me. To back up,
everything that __ that I'm going to be talking about, I've got in - I've
got a packet of information which you've been passed out to.
I'm here today to address the notice of violation that was issued
by Code Enforcement Officer Dennis Mazzone on January 23rd of
2006, on 1101 Alachna Street to demolish something that has been in
existence and operating since the early '60s. It's not like it was put in
yesterdaY. It wasn't put in two years ago, five years ago. This park
has been here. Everything has grown around this particular piece of
property which 1 have witnesses that -- that are -- have lived in
Immokalee. My daddy's been -- he's been in Immokalee since the
'60s. This park was there when he was there. I've got other people
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that would come and be witnesses for that. And I've got also proof in
writing in black-and-white. I just want to show you guys that.
For __ for example, on a smaller scale if I was to build a home on
a piece of property that's zoned residential at the current time, 30 years
from now the zoning has changed on me. I'm stil1living there. The
zoning noW is whatever it may be, commercial. Code Enforcement, do
they have the right to come to me and say, you're -- your property is
now zoned commercial. You must demolish your home, obtain a
demolition permit and demolish your home or you must go in for
rezoning. The zoning has changed around me. Why should I have to
change __ go in and change anything? I should be given a variance as
to what has been operated. The park has always been there. It has
never been shutdown. It's been operated from 1960, over 45 years,
plain and simple.
We all know that zoning on this property has changed a couple
times or maybe numerous times. Nobody has a record of a zoning map
in the '60s, whether -- whether there was even a zoning on this piece
of property at that time. Who knows. Their -- their zoning maps only
go to the '70s. I went and personally and met with some of the -- some
of the head guys in zoning and in the graphics department. And they
laughed at me. They said, Good luck. You're not going to find any
kind of zoning that was -- that we have a record of back in the '60s.
The earliest __ the latest we go back is, like, in the '70s, he told me.
Which the zoning at that time, DenrUs Mazzone pointed out, was
industrial in the '70s. What was the zoning in '50s and '60s? In '61 the
county recognizes this as being Shells Trailer Park as Ms. Shirley
Garcia read offto you guys earlier.
Shells Trailer Park, the county recognized it as that in the '60s.
Frank and June Shell owned this trailer park. In 1980 Larry and
Wanda Collins had purchased this trailer park from the Shells which
they had __ they had changed the name over to Collins Trailer Park
which the county never acknowledged it being Collins Trailer Park.
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It's always been Shells Trailer Park which a lot of the old -- old names
back then are still referred not .- not on this particular property, but
things that __ that have named this at one time. It's always named that
to the older people. So, anyhow, let's see.
We all know that zoning has been changed numerous times.
Therefore, I'd like to express the fact that according to Collier County
records, not only has this property been recognized as a residential
mobile home park, but it has been allowed to operate as such for
45-plus years. In addition to the mobile home -- mobile homes
existing on the property, Dennis just forgot to mention, there are five
wood frame structures, homes on this piece of property. There were
twO CBS structures on this piece of property. These ain't something
you can build on the weekend or do without the county knowing about
it. There's permits issued and I'll go over that and show them to you
here in the packet.
As proof of Collier County's allow us to operate as mentioned,
please view some of the permit numbers that I bave located in Collier
County property cards entered into evidence as Exhibit A. Now,
you'll find there's __ there's three different stapled property cards. One
of them is listing Lots 6 and 7. That's the first stapled packet. The
second stapled packet is a listing on Lot 8. And the third packet is Lot
9 and 10.
Real quick. If you guys can read at the bottom, the property card
on page 6 and 7 was dated in '60 or sometime in the '60s. At the very
bottom you'll see the date on the bottom left-hand comer. If you'll go
to the second stapled packet which is the Lot 8 you'll see right .- right
there they have listed Shells Trailer Park -- Shells Trailer Park. Is
everybody following me there where it says that?
If you'll look over to the right-hand -- the right-hand side column
of the first Lot 6 and 7, you'll [rod permit numbers issued dated 1963,
1965, 1966, 1968, 1985. Dennis Mazzone mentioned these permits
were given out in error. One permit I can see given out in error, but
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you'll see through the packet that I have a lot more than just one
permit that was given on this particular piece of property by different
officers or different code enforcement or -- or permitting department
to pennit these __ these structures to be placed on this property. I
mean, you know, an error is not -- you know, I can see one person
billing one error, but not that many.
Anyway, the permits you're dating back and you can see there
they're dating from 1963 all the way up to 1991. We're talking '91
isn't that long __ isn't that far back. After reviewing Collier County's
microfilm, the records department, I found evidence of a few of these
permits that have been mentioned. Collier County's records are very,
very hard to go through, first of all. Then, again, the girl that was
helping me laughed at me when I asked her I wanted to fmd permits
from the '60s. Good luck, she says. I'll help you try to find what we
can. We'll go through and see what we can find. Okay.
We went through and we found a few of these permits. If you'll
__ at this time if you'll please refer to page 1 of Exhibit B. Page 1 of
Exhibit B you'll see which has a permit number of 4086 at the top
left-hand comer. This is an application for a building permit. Right
under that you'll see where it says, Build a CBS to be used as
residence. Twenty-one by twenty-six giving the dimension of it.
Owner, Frank Shell, giving you a plot plan description of it. Given by
Building Official Townsend. And this was issued to be built on Lot 8
which I have proof of that.
Sometime prior to 1963 there was also a picture of that CBS
structure right behind that which is on page 2, Exhibit A or Exhibit B.
That is the structure that they have permitted. Not only -- real
quick, jumping off something here. Not only this park isn't for
migrants anymore. These -- these people that live in this park, I try to
rent to year-round people. I have migrants in the -- in the -- in the
trailer park which people -- migrant housing is needing -- needed in
Immokalee as everybody knows. When they come to me wanting to
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April 27, 2006
rent a place, when they got little kids that come up begging to rent a
place because 1-- they're so -- the migrant people -- the migrant
workers, I shouldn't say, the migrant workers are not up to date of our
standards of living as far as clean -- clean and so forth.
So I __ I really __ I mean, I shouldn't I'd rather not rent to them
but, yes, I have rented to them and I do because of the situation. I
mean, come up begging they have kids with them. Need a place, they
just come into town. They need a place to stay. I rent to them. Okay
CHAIRMAN BARNETT: Mr. Blocker, I'm going to interrupt
you just a second. [need to excuse Richard from the meeting. He has
an emergency he has to go attend to.
MR. BLOCKER: Thank you.
CHAIRMAN BARNETT: Go ahead.
(Mr. Kraenbring leaves meeting.)
MS. BLOCKER: So anyway --
MS. ARNOLD: SO Madam -- Madam Chairman, does that mean
that Mr. Kelly is going to be --
. CHAIRMAN BARNETT: Yes.
MS. ARNOLD: -- serving?
j MR. BLOCKER: So getting back on track what we're here for
today. Let's see. Sometime prior to 1960 -- 1963, there was a permit
that could not be located in the microfilms to build another CBS
structure on Lot 6. As evidence of this structure existing, please --
please see Exhibit C which you'll see a permit number of 40&7. And
what we're talking about is I'm back in this -- this -- this particular
CBS structure I couldn't find the permit for to build this particular
structure. I'm backing it up with an alter permit that they were given
in 1963, I believe, to alter -- alter this other CBS structure. As you
can see the structure size is 18 by 30 addition on Lot 6. I've not
mentioned Lot 6 yet in the packet. So this is obviously a different
structure we're talking about than the previous structure I mentioned
on Lot 8. But this is an alter permit. This is in addition. This is not a
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permit to build. So there was somewhere there was issued a permit to
._ to build this other particular CBS structure.
Let's see. Please refer to Exhibit D, if you would. Here you'll
find a Permit No. 67-759 dated July 19th, 1967, to Frank Shell to alter
a residential structure located on Lot 6. In addition, you'll find on
page 2 the inspection card.
Next I'd like everyone to view page 3 ofthe same exhibit. Turn
one page, please. Everybody -- everybody with me? youtre looking
at a building permit which permit number is 185-362 issued in 1985.
1985 there was a permit issued to Larry Collins to replace an existing
mobile home on Lot 8. These are permits that the county's issued.
Nobody's issued these but the county. I mean, it's as simple as that.
If you would, please view page 7 of Exhibit D which is -- I
should have labeled these or numbered these for you, but you'll see
another permit. And I did label it at the top. It says page 7, top
right-hand corner in black magic marker, the same -- the same packet,
page 7.
MR. PONTE: It's this one.
CHAIRMAN BARNETT: Okay.
MR. BLOCKER: This is also another permit that was issued
185-363 to replace a mobile home, an existing mobile home. And
right behind it you'll see, you know, it goes on with inconsistent (sic)
with the permit, they're giving the certificate of occupancy and so
forth.
I wasn't able to fmd every single pennit that was listed. I was in
the meeting here earlier, sitting in the meeting when the gal-- and I
know exactly what she was talking about when she said how difficult
the records are here in Collier County. They were able to find pieces
and bits of different permits, but never -- you know, I wasn't able to
find any of the permit or I was able to fmd this or that of that
particular pennit. So if you would just, you know, please accept what
I have brought as far as the permits on these -- on these particular
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properties.
Next, rd like everyone to view Exhibit E. Now, this was never
designed to be a residential area according to Dennis Mazzone, what
he had mentioned earlier, which in my opinion is just a statement.
Because be wasn't around Immokalee in 1960. He doesn't know what
it was designated for. Yet he was there, you know, roughly ten years
ago wnrking the Immokalee area. And at tbat time, he knoWS this
trailer park __ trailer park was there. He knows it was the same as it's
always been. It's never been changed. It's never been shutdown.
Didn't address it then, you know.
So going back to Exhibit E. Tbere's a permit that was pulled in
1990, Permit No. 900009126, for a screen enclosure, a 24 by 16
screen enclosure. These are all permits that was not supposed to be
issued because they were in error. And if you'll look down on the
second page of that __ of that permit which the zoning shows in
handwriting from the officer that if I could read her name, Alamar
Adorno or rm sure __ I don't know if she's still working with the
county or not.
UNIDENTIFIED SPEAKER: Right here.
MR. BLOCKER: Okay. 1 know her name's Alamar, but 1 didn't
know her last name, in zoning. She wrote in "MHRP," mobile borne
residential park is what __ prior to 1991 that's what MHRP stood for is
mobile home residential park. After 1991 it was changed to MH
which is mobile home as we all know.
If you __ if next, if everyone would please view Exhibit F. Pages
1, 2 and 3 are a1l aerials of this piece of property. Now, you're going
to see on the fIrst aerial in -- in magic marker written there because
this was done at the Property Appraiser's office. I had to go to their
office to get this aerial. And tbis is the clearest aerial that we could
pull up. In 1981 to give -- to give a fair picture to you guys to see
what was actually on this park in '81. It sti1l-- what you see there is
what you see on the next page in 2004. And you see it in 2005. Same
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exact park. Nothing's been changed. Nothing's been moved. No
alterations have been made.
Providing photograph in evidence of this property as a mobile --
as a residential mobile home park, I would have liked to have
presented an earlier map than 1981 to give you guys a better idea or
let you guys know, give you proof that this park was there in the '60s.
Which I think by these -- showing you these permits of these
particular structures you could see that this is a residential area -- area
back then, whatever the zoning that had been -- may have been on a
map. The county approved it. It was known to be a residential area
through the Property Appraiser's Office, through the Collier County
Government, you know, services. Everybody knew it was a -- it was
__ what it was used for. It may not have been zoned correctly at that
time. I don't know. Nobody can say what it was zoned, whether they
even cared what it was zoned back then. I mean, there's pieces --
there's parts up in Georgia and North Carolina and Tennessee as of
today that you don't need any permits to build such structures or
whatnot. They __ you go in there, the government office, they laugh at
you if you ask for a permit. I mean, it may have been that way back
then. I don't know. I mean, I'm not that old. I can't really say how far
that went back.
If everybody would please review Exhibit G. And, of course, the
aerial __ the __ the __ the photos that Dennis was showing was pretty
ugly looking photos. That was all after the -- after Wilma had come
through, blew a lot of stuff around. I mean, these places needed --
needed, you know, some cleaning up to do. I mean, everybody
everywhere needed cleaning up which has -- which has been done. I
mean, you know, you couldn't have picked a better time to take photos
right after, you know, after Wilma come through.
But, anyway, if you would please go to Exhibit G which we
have. These are a few photos that you just got through reviewing off
the aerial maps that I have -- I have produced. Including but not
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April 27, 2006
limited to flYe residential structures and two CBS structures
previously mentioned as well as a few mobile home photos indicating
hoW well the park and homes have been maintained. The first page
shows you two mobile homes there. I mean, that's a neat -- neat
trailer.l~s not a new trailer. This trailer -- these trailers were put in in
the '60s. They've been maintained. They've been painted. They've
been, you knoW, cleaned. Everything still in tact. They went through
Wilma. I mean, these trailers obviously have to be in pretty good
shape to go through wbat -- there was a lot of trailer blew apart there
in Immokalee.
MR. LEFEBVRE: What's the date of these photos?
MR. BLOCKER: Just recently last week. I can get that to prove
to you if needed.
Second page shows you kind of an overview of one part of the
park there on the backside of the park of what the trailer park looks
like. To me it's not a bad looking park. I mean, I know there's parks
in parts of Fort Myers and Naples that -- that have no trailers that look
no better than these. And -- and then, again, we're not talking about
conditioning here as far as that goes. We're here because of a zoning
issue that they have brought.
Page 3 you'll see a wood frame structure which has been - which
._ has stuccO on it _ it looks it's been wire lathed and stuccoed. It looks
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like a CBS structure, but it's a wood frame structure. Right below that
there's another wood frame structure.
On the next page there's the -- there's two other wood frame
structures I'm going __ I'm going to show you. One is a three-bedroom
home. These people lived here ifl'm -- in could correctly recall how
long they've lived there, it was like 15, 16 years these people have
lived here. Recently he -- the guy that has lived there, he's recently
deceased. I mean, he just -- his wife still lives there.
And that one below that is -- if I could see the aerial I would
show you. Bu~ anyway, there's another wooden frame struCture. The
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next page is also another -- another wooden frame structure. And the
last picture that I've brought is a -- is another one of the CBS
structures which I showed you the previous CBS structure in another
exhibit before that.
If everyone would please review Exhibit H. Page 1 of Exhibit H,
here you'll find that the Florida Department of Health has provided me
with the earliest available inspection report according to records.
According to their records they went -- they can go back as far as
1986 indicating that they have been inspecting the said property as far
back as 1986.
In addition to that they -- they've included a current inspection
sheet which is dated February 22nd of '06, right -- right behind this
original 1986 inspection sheet. And there -- and, then again, HRS is
very strict because they -- you know, we want everybody to live as
comfortable as they can. These -- these -- the migrants are very
destructive. They break windows. They rip screens. I mean, they
drink a lot. You know, we put up with that too in that particular
department. But all said and done, I mean, HRS is very strict. And
you'll see that there's nothing very, very seriously notated on any of
these inspections. You know, you got a broke window or, you know,
a refrigerator, the temperature's off which has been replaced. A lot of
them you'll see no violations noted. I mean, it's a pretty -- they go
through and pretty much tell you this is what you got to do.
Let's see. And right behind that you'll find the operating pehnit
that is issued or current one that is issued to myself in 2006, an
operating permit through the HRS. And the last page ofthat exhibit
you'll find a __ a personal letter that was written or typed by the HRS
Department. And if you would -- and I'd like to read that. It says (as
read): To Whom It May Concern: Our records indicate that the
facility located on 1101 Alachua Street, Florida has been operating as
a residential migrant housing since 19 -- July of 1986 with Permit No.
115200191 owned by Mr. Larry Collins. Our records indicate a
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change of owner in January of 2003 to Mr. Jerry Blocker. And his
new permit number, which is 115200402, the living conditions of this
facility are acceptable.
MS. ARNOLD: I just wanted to state an objection in that the
State of Florida or the Health Department's records has nothing to do
with the zoning regulations or anything like that.
MR. BLOCKER: Well, that was -- that was a lot of issues that
he was bringing up that wasn't in zoning also. But the pictures that
you have there has nothing to do with zoning, things like that.
MS. ARNOLD: My comment is, the picture up there has a lot to
do with what are regulations for the county. What you're talking
about has nothing to do with the county regulations. And whether or
not the state issued you a permit, has nothing to do with Collier
County's regulations and their zoning regulations.
MR. BLOCKER: That's very -- I understand that. But I'm just
letting the board know that this has been aware of a residential area --
use area. And everything has growed around this particular piece of
property. I don't know what to say.
CHAIRMAN BARNETT: Your objection's noted, Michelle.
MR. BLOCKER: Also, if I could notate or show -- point this
out. This __ where she's -- where they're showing these -- these tires
and stuff on the fence, that's a county easement. That the junkyard has
violations with the county that the county has throwed up their hands
at. I've been on this -- this particular code enforcement department to
make them clean up this actual easement.
If you'll __ if you'll take -- if you'll take a ride out to Immokalee,
you'll see there's probably a million tires in the easement, Collier
County easement, that Collier County will not accept that Barron
Collier, I believe is who it was, donated this as an easement to Collier
County. Because there's a road -- and I can't remember the name of
the road __ that comes straight off of New Market Road that runs
straight through that. That was designated for that easement that they
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__ Collier County will not accept now because of the environmental
problems that they've had there. Collier County's not -- I mean,
they're not doing anything about it.
MR. MAZZONE: Could -- could I possibly object to that?
Because that is not the reason we didn't accept it. It never was
accepted. It never became our property. Collier's offered it and we
didn't accept it. That's been for years in that situation. As I said
earlier, we have a case on that property not initiated by the Blockers,
but initiated by our office by our observating -- or observing this
problem.
MR. BLOCKER: And what have you guys done about it?
MR. MAZZONE: We're currently working on it as we are your
__ your property.
MR. BLOCKER: I thought so.
CHAIRMAN BARNETT: Okay.
MR. BLOCKER: I would like to continue, please. Okay. There
__ and a brief review I've -- I've brought to the table -- I've showed
permits that said was never given. They were given in error. I
brought aerials showing that the trailer park existed. The clearest
picture I could bring you guys was dated 1981. I've given -- proven
dates from 1963 all the way up to 2006 of evidence that will proven
dates. Those are not dates I just picked up somewhere and threw out to
you guys. I've shown photos of the park.
In conclusion, after presenting all the evidence brought forth here
today, Collier County cannot -- I mean, all the evidence that was
brought here today, Collier County cannot deny that they have
allowed this property to operate as a residential mobile home park for
45 years __ plus years. And, therefore -- therefore, they should -- they
should continue to allow it to operate as such. I mean, bottom line. I
mean, everything is grown around it.
And I thank you you guys for listening.
CHAIRMAN BARNETT: Thank you.
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MR. MAZZONE: If -- may -- may I address some of the points?
CHAIRMAN BARNETT: Sure.
MR. MAZZONE: I believe that we have shown evidence that
zoning designation for this property has never been that for residential
use. We do have a notation on another map. I didn't get this
notarized. That's why I didn't introduce it as evidence. But on this
particular map it has an I-C-3 designation on this map. I'm going to
just show it to you.
That lmmokalee C- 3 designation stands for commercial light
industrial district. This was -- this was perhaps another zoning
designation for this property, but by no stretch of the imagination do
we jump from a residential to commercial to industrial. It -- it can go
from commercial on into industrial as a change because all the
surrounding properties there are, in fact, industrial and they're used as
such. We would not zone it to a -- a lesser use as was pointed out in
the presentation by reading those ordinance sections. That would be--
we would not downgrade it to a residential use from commercial or
residential from industrial. That is not what Collier County is known
to do.
CHAIRMAN BARNETT: Dennis, what's the date of this map or
do you know?
MR. MAZZONE: Yes, 1970 also. It is not notarized because I
didn't get it out of the archives. I took it out of another historical area
that we store old maps in. And I -- I thought it not necessary seeing
that we did present the 1970 map that has been in our records.
There is never found -- there were never found any notes of
designation less than commercial on this property. And with such
zoning we would have never allowed for residential development --
proper residential development. Perhaps something might have been
put there, but as I say in error.
One of the permits that Mr. Blocker shows you in -- in Exhibit E
he points out his 1990 -- 91-26 permit which is an express permit.
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And the zoning designation as he also points out is mobile home
residential. As we showed you, there was never such a designation on
that property. That's a scrivener's error or an error, however. It could
__ I'm sure it's an innocent mistake. Perhaps the explanation that this
was __ this was for the -- a screen enclosure to an existing mobile
home. There is a presumption perhaps that then it must be a mobile
home park. I can't think for anybody else or say what transpired back
then, Certainly anything could have happened, but it was done in
error.
MR. BLOCKER: Was the -- was the --
MR. MAZZONE: I'm sorry. I'm not finished.
And we spoke o~ the Health Department inspecting these
premises, indeed. They only address those areas that they're capable
of addressing and able to. They do not address land development use
or regulated land use, subject matter setbacks and our guidelines.
They only address their guidelines. And we're not saying they don't
do a good job, but they certainly don't do our job.
And certainly Wilma didn't create the salvage yard next door.
That salvage yard we have aerials that go back to as long as we can
see the mobile home park. Indeed, it was a industrial -- a booming
industrial area. And there was a salvage yard there and there were
many other activities there.
We __ we started the Immokalee Housing Initiative for a reason.
And this initiative was started prior to the Blockers owning this
property, but yet in their community. And they were aware of the fact
that this property was going to be under close scrutiny when they
purchased it and we did just that.
CHAIRMAN BARNETT: Can you give me an overview of
what the housing initiative was or is?
MR. MAZZONE: I believe Ms. Arnold could speak to that
better than I could. I know that we partook -- myself personally I
partook in helping catalog all the mobile home parks in Immokalee.
Page 72
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April 27,2006
We physically got into our vehicles and visited all these sites and went
about appraising them, seeing the safety aspects as to the living
standards for the peoples that were using these sites, the size of the
sites. To qualify as a mobile home park it had to be three mobile
homes on that property or more. So that eliminated a lot of sites. A
lot of people joined their -- their properties together to make it so that
it was something that could be addressed by the initiative program.
The initiative program's designed to encourage -- it was designed
to give incentives to these property owners, to encourage them to
upgrade these properties and re-designate, re-assign the areas if they
had to be or eliminate housing be it the entire house or a blighted
house. But it was an opportunity to help the citizens of Immokalee
and a lot of the residents that don't have the ability to find adequate
housing.
Mr. Blocker makes a point of saying that this is -- these are good
housing conditions. Well, we -- I have one I'm going to put on the
screen. It happens to be on ParcellO. Sure. It was a mobile home,
but miraculously it grew into -- with -- with additions that are not
permitted. We would never permit these makeshift sleeping quarters
that are made out of inexpensive materials and don't meet our
standards for code. And we turn a single-family mobile home into a
triplex use. And I'll show you the photograph.
MR. BLOCKER: I thought we were talking about zoning again?
MR. MAZZONE: We are talking about zoning. We're talking
about use and what we allow and what we expect as safe and -- and
durable housing stock for our residents.
This is a mobile home and on either end of it we have wood
frame additions put on it to expand the use, not to stay within the
parameters of what they -- what was purchased or what might have
been mistakenly permitted in the past, but to even expand this use to
perhaps make more profit on a piece of property that would be --
should be better utilized as industrial land. And below the door was
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April 27, 2006
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open to this. There was a resident cooking on an illegal facility which
we don't allow in a single-family structure, but one -- no more than
one kitchen facility. This is another kitchen facility along with two
bedrooms, by the way, makeshift.
CHAIRMAN BARNETT: Mr. Blocker --
MR. BLOCKER: Yes, ma'am.
CHAIRMAN BARNETT: -- when you purchased this property,
there was already a legal notice that had been given to the previous
owners?
MR. BLOCKER: In 2001 which I was aware of when -- when
Dennis had sent me this packet, that they were given a notice.
CHAIRMAN BARNETT: Were you made aware of it at the
time of purchase of your property?
MR. BLOCKER: No. I knew that Collier County was -- was
addressing mobile home parks at the time, but there was never an
issue where it was brought up that this park had a -- had a violation on
it, no.
CHAIRMAN BARNETT: So you never received anything in
writing from the previous owners?
MR. BLOCKER: No. No. There was, no. They'll never fmd a
record of showing any of that or --
CHAIRMAN BARNETT: I'm asking if you ever received --
MR. BLOCKER: No, ma'am.
cHAIRMAN BARNETT: -- prior to purchasing?
MR. BLOCKER: No.
MR. KELLY: Madam Chair --
CHAIRMAN BARNETT: Yes.
MR. KELL Y: -- are we opened up to questions?
CHAIRMAN BARNETT: Yes.
MR. KELLY: If I could just have a minute or two to ask a
couple questions of Dennis.
CHAIRMAN BARNETT: Sure.
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MR. K.ELL Y: Dennis, the stipulation agreement that you had
offered Mr. Blocker, basically what did it state?
MR. MAZZONE: Specifically it stated that we expected them to
demolish the facilities there in lieu of the fact that they're not allowed.
We have a stipulated agreement that we designed specifically to
this property. And it reflects the course of action that we would
expect the Blockers to take. And one of those steps would be to at
least come in and try to apply for a zone change. We were willing to
work with the Blockers. We told them this months ago.
Without a zone change, we have no recourse but to direct the
defendants to remove the structures because we don't allow -- we don't
allow residential dwellings on industrial-zoned property. We have an
alternative to issue any order except that of removal. We can't -- I
cannot ask them to obtain permits, because we don't allow the
permitting of this type of structure. We can't -- we can't ask them to
do anything except remove them or come on in and get a zone change
so that we can allow it. And this board is the only vehicle by which
we can accomplish that. We have no other choice.
MR. K.ELL Y: Okay. And my second question was, the aerial
map showed boundary lines. It clearly shows the easement where it
refers to the __ the use next door, junkyard, whatever you would call it.
Is there any structures -- inhabited structures that are over that
easement line or the property line?
MR. MAZZONE: Without a formal survey, I can't say for
certain yes. I can say that the yellowed highlighted marks on our
maps aren't true. That they are very close and certainly they make it
appear that there are encroachments. When we say "encroachment,"
the trailer doesn't have to physically hangover. It has a rear yard
setback. And it __ it cannot encroach into the easement either. It's not
that it's going onto another piece of property. But as you can see, the
__ the junkyard is encroaching into the easement. And certainly the --
the trailers are encroaching or at least appear to be encroaching into
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April 27, 2006
the activity that's taking place in that easement and the property that
the easement occupies.
Without a survey, I can't say with -- with -- with all honesty that
there is an encroachment. But it certainly does appear that way. And
these trailers far exceed the number in which we would allow as far as
residential units on a particular lot. So regardless of our accuracy with
this __ this encroachment, although I do believe in my heart of hearts
that they are encroaching, there is still the misuse of the intended
developmental requirements that we have for residential dwelling use.
MS. ARNOLD: Can I -- can I ask a follow-up question?
Dennis, are there setback requirements for industrial zoning districts?
MR. MAZZONE: There are definitely setbacks. They are in
your packet.
MS. ARNOLD: Okay. And are there setback requirements for
mobile homes had this been --
MR. MAZZONE: Absolutely.
MS. ARNOLD: And is there the potential that any of these
structures are encroaching in those setbacks, whether it's a mobile
home zoning district or an industrial zoning district?
MR. MAZZONE: Yes, ma'am.
MR. BLOCKER: I'd like to add something to that. I mean, these
setbacks you're talking about are -- are today's setbacks. What they're
__ what they're referring is today's codes, today's setbacks. These
places were put in there in the '60s. I may -- it could have been before
that. Without proof! can't say that. With permit, I mean, that I pulled
up. These --
MS. ARNOLD: Mr. Blocker, did you look at the -- the zoning
code that I __ I gave you for '65 that I handed you that Mr. --
MR. BLOCKER: I didn't pay any attention, but I wasn't finished,
anyway.
MS. ARNOLD: Well, I'll ask you after you're finished.
MR. BLOCKER: Okay. Please. I mean, it's -- you know, like I
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said, these are as today's zoning, I mean, the setbacks may be true.
Now, ifI went in and wanted to put in a new mobile home, I could see
them asking me to be required to setback -- the proper setbacks which
would be no problem. If I went in and got a permit today to change
out one of the mobile homes in there, absolutely I would expect them
to say, Okay, you must be a certain amount of feet off the rear
property line. You must be a certain amount of feet off the side
property line and so forth. I mean, today .- when you do something in
today's business as today, you follow the rules as of today .- as of
today, not ._ not going back -- you don't -- I mean, you don't try to go
off the '60s rules. I mean, you follow today's rules and that's as simple
as that. I mean--
MS. ARNOLD: Madam Chairman, could I -- could I ask Mr.
Blocker if he's finished and ifI can ask him a question?
MR. BLOCKER: Go ahead, please.
MS. ARNOLD: Okay. Did you hear any of the testimony that
Mr. Mazzone noted what the rules were in 1965?
MR. BLOCKER: I -- I didn't pay any attention. I don't know
what you're asking.
MS. ARNOLD: Well--
MR. BLOCKER: I -- I was listening in and out but I don't recall
what you're saying.
MS. ARNOLD: You -- you.. did you testify that this park
existed around the '60s?
MR. BLOCKER: Yes.
MS. ARNOLD: Okay. Mr. Mazzone did provide testimony
about the regulations that applied in the '60s. Maybe if you pull up
that book.
MR. BLOCKER: Well, they .- the county allowed this to go on.
They were issued permits.
MS. ARNOLD: Can you pull up the book that I -- the handout
that I gave you? Can you look at it?
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April 27, 2006
MR. BLOCKER: I mean -- regardless, I mean, these -- these --
the county knew it was happening. It ain't like they went in there and
just done something illegally. Whether they wanted to follow the
rules back then, the county officials, I mean, that's not our choice.
MS. ARNOLD: Do you have it?
MR. BLOCKER: What page, please?
MS. ARNOLD: Could you turn to page 10.
MR. BLOCKER: And where do you see -- where's the date
1960? Okay. I see revised January 1965 county zoning regulations.
Why did the county -- why did the county approve them to put them
where they're at today? They're approved. They had to be.
MS. ARNOLD: Well, I think Mr. Mazzone spoke to that.
CHAIRMAN BARNETT: I've got a question for Jean. Maybe
she can help me.
MS. RAWSON: Yes.
CHAIRMAN BARNETT: Unmuddle my head a little. In this
case apparently the county did go and issue some permits that we've
been able to see --
MS. RAWSON: Right.
CHAIRMAN BARNETT: -- actually. But we also have seen
actually that that was in violation of their own zoning, apparently,
requirements. How do we handle that, I mean, legally?
MS. RAWSON: Well, you have to listen to the evidence
presented. I __ I believe that Mr. Mazzone told you that the permits
were issued, but I also believe that there was testimony that there was
a citation violation prior to his purchasing the property. And that he
purchased it when there was already a violation having been
red-tagged, if you would. And what I think Mr. Mazzone is
suggesting is that they can't get permits now, so that they would have
to go and rezone.
MS. ARNOLD: Madam Chairman, I believe, you know, you've
had situations like this before where permits or other development
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orders were issued in error. And the attorneys have stated such
sections out of the Land Development Code that says because
something is issued in error, does not grant it, you know, something
that is should just stand. It's not -- it's not something that because
someone issued a permit in violation of one of the Land Development
Codes or whatever the regulation is, doesn't mean that it's something
that should stay in its infinity.
CHAIRMAN BARNETT: Can the county attorney help me
here? 1 fmd a sticky wicket here in one respect because --
MR. GRIFFIN: 1 appreciate what you're saying. Steve Griffin
with the County Attorney's office. There is a -- actually provision in
your __ in your own Section 8 of the Land Development Code that
discusses permits that are -- that are issued in error. In fact, that those
permits are then effectively withdrawn and reissued to be in
compliance with the codes. There's also case law -- state case law that
says that it, in effect, there's no -- and these are going to be legal terms
of art, but there's no collateral estoppel against government employees
for taking actions that may be unauthorized. And, in effect, meaning
that, you know, those unauthorized deeds are ones that are based
maybe sometimes on faulty infonnation and application. Those can't
be withdrawn and made right again.
But, 1 mean, 1 think this case boils down to zoning. The zoning is
the zoning. And either it's right or it's wrong for these gentlemen.
And 1 think in this particular situation it sounds like it's not residential.
I'm not sure that anybody's offered any evidence that it ever was
residential. And they have a process they can go through to maybe try
to make this right, but it's not this board. It's the Board of Zoning
Appeals or somebody else, but it's certainly not this board.
CHAIRMAN BARNETT: Thank you.
MR. BLOCKER: If 1 would --
CHAIRMAN BARNETT: Do we have any more questions? Go
ahead.
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April 27, 2006
MR. LEFEBVRE: 1 have a couple questions.
MR. BLOCKER: Yes, sir.
MR. LEFEBVRE: First of all, did you attend that meeting that
was in 200 1 or 2002 regarding the initiative?
MR. BLOCKER: Never have I -- have 1 been invited nor been
sent a letter to come to a meeting.
MR. LEFEBVRE: The meeting I'm talking about is regarding
initiative for the mobile homes.
MR. BLOCKER: No, sir.
MR. LEFEBVRE: Okay. According to Investigator--
Investigator Mazzone, he stated that you were in attendance at that
meeting. And that there was certain facts presented on how to either
rezone or improve these mobile home parks and that's prior to your
purchasing of the -- of the property.
MR. BLOCKER: The only meeting I've ever been attended in --
in discussing this situation is the meeting we had on -- when 1 was
issued the notice of violation through Dennis Mazzone. That is the
only meeting I've ever been in.
MR. LEFEBVRE: So are you saying that you weren't aware of
this initiative? 1 mean, your family's been in Immokalee for -- for
many years from what I understand. And it would seem that you
would be aware since you were looking at a mobile home park that
this initiative would be something that would be of interest.
MR. BLOCKER: In -- in -- in knowing that the trailer parks -- 1
never knew the meeting was taking -- was taking place. I knew that
Collier County was __ was coming out there and giving people notice
of violations which they have given the Collins in 2001. Neverwas
the park shutdown. Never was it red-tagged. They were given a
notice of violation the same as 1 was given one in '06 because the
county __ their opinion decided they were in fault. They -- they were
not complying with today's code. This park wasn't put in yesterday.
You know, they __ they're not -- how do they know they were noticing
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of violation? Nobody approved what the zoning was in '60s.
MR. LEFEBVRE: Let's assume the zoning was residential.
MR. BLOCKER: Sir?
MR. LEFEBVRE: Let's -- let's assume -- let's just say like you're
trying to argue that possibly the zoning was residential. If yon look on
page __ on the county zoning regulations for January 1965 -- I'll let
you get to that.
MR. BLOCKER: Which page?
MR. LEFEBVRE: Page 26 and 27. Let me know when you get
there.
MR. BLOCKER: Okay.
MR. LEFEBVRE: Under C where it says, Area of Regulations,
minimum lot side 5,000 square feet. And then it goes into the width.
And then also says (as read): Rear yard must be sufficient to take care
of septic and drain field. I'm not sure if they are on septic and -- and
drain field. Maybe you can -- already on it?
MR. BLOCKER: They're on state -- city sewer and they got --
they all have electrical.
MR. LEFEBVRE: Okay. Go down to No.5, only one mobile
and/or trailer home shall be permitted on a lot.
MR. BLOCKER: Can I answer to that? What that is, is that's in
a residential area, VR zoning or whatever you may. Who says this
wasn't zoned to MH __ MHRP whicb in 1990 Ms. Aiamar designated
this area as being MHRP which at that time we could prove that it was
not. It was zoned industrial at that time in 1990.
So, no, there again, we're not proving -- there's no one brought to
the table what the actual zoning was in '60. If it was zoned mobile
home residential park at that time, if you could fmd. I'm not sure
where it would be in the --
MR. LEFEBVRE: Well, if you look at No.8 on that same page
it says (as read): R-4 zone shall not be permitted adjacent to any zone
higher than B-3 -- R-3. Sorry.
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April 27 , 2006
MR. BLOCKER: What is that saying there?
MR. LEFEBVRE: What that's saying that there's industrial
zoning next door.
MR. BLOCKER: Right as of -- as of noW -- as of now.
MR. LEFEBVRE: No. No. No. Ifl'm -- ifl'm not mistaken in
1970 as back __ as far back as 1970 we have maps to show that it was
an industrial zoning at that point.
MR. BLOCKER: Right, sir.
MR. LEFEBVRE: Okay. And you're saying that when this
mobile home park was there next door, correct, there was a -- you're
saying that more than likely there was a trailer park. I mean, not -- a
recycling center or junkyard.
MR. BLOCKER: I'm not sure what date that was put in, but if
the mobile home park was, say it was zoned MHRP or whatever, the
areas around it could have been zoned VR. The zoning in Immokalee
have been changed several times since probably the first time of
zoning. I don't __ 1 don't have any maps showing that, but 1 know for a
fact the zone's been changed several times. So it could have been
zoned VR around this mobile home or village residential or --
UNIDENTIFIED SPEAKER: Even a junkyard.
MR. BLOCKER: Even a junkyard. It probably could have been
zoned VR at the time this mobile park was put in. No one -- no one
has brought that forth. 1 mean, there's no way that 1 could prove it.
No way that the county could prove it.
MR. LEFEBVRE: Yeah. I just find it hard to believe that all
that area out there would be --
MR. BLOCKER: This is not on a main drag. It's kind of like in
a separate area. Right behind it there's, you know, it's all woods and
whatnot back in the back. 1 mean, back then -- 1 mean, like I said
before, I mean, up in __ I mean, whatever the zoning maybe at that
time Collier County allowed it. I don't know what else to say as far as
they allowed it to go in.
Page 82
Now, if they knew there was a junkyard there, they shouldn't
even have allowed it to start with, whatever the zoning may have
been. If there bad been ajnnkyard there when the zoning was VR,
which is zoning of a junkyard wouldn't be allowed to put in a VR
zoning, but just say it was there already. Collier County, their
inspectors had to go out and inspect these places. They know a
residential area is not supposed to be in the -- in a right side ofa
junkYard. I mean, the connty officials know -' known this had been
going on for this amount of years.
CHAIRMAN BARNETT: That's where I've got a little bit ofa
problem with a residential area abutting industrial. Especially.- I'm
sorry. I'll move the mic closer because I'm soft-spoken.
I'm having a little bit of trouble with a residential area in the
middle of an industrial park only because of the safety and welfare of
possibly children. And I don't know if there's any children there, but I
can see children playing in the auto lot and getting hurt. And that's
where 1 come up with a safety issue.
MR. BLOCKER: Right. I mean, it's been allowed for this many
years. Excuse me. 1 didn't mean to interrupt you.
CHAIRMAN BARNETT: No, I -- 1 understand.
MR. BLOCKER: Why is the burden on me now? You knoW,
why __ why not let's work together to put a fence up or make -. make
the junkYard comply to getting their -- their junk -- their cars off of the
easement. And we've got a l8- or 20. foot easement there at that time.
I _' you know, you could run a fence down there. The connty could
work ._ they could put __ make the junkyard put a fence up. Make me
put a fence up to try to protect it if the safety is a factor here. And
we're talking abont 3 1 places on these proof -- these piece of property,
31 units including mobile homes and housing, CBS strnctureS and
wood frame struCtures that the county's asking me to take and
bulldoze. Go and rent me a bulldozer and go to work.
MR. MAZZONE: May I -- may I make note of something,
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April 27, 2006
please? We are giving the Blockers the option to rezone. This is
certainly another fix to this situation, but also Mr. Blocker might have
misspoke.
According to a project status report dated 7/18/03 that this report
is a result of the Immoka1ee Housing Initiative Status Report, one of
their meetings, on January 7th, 2002, they -- they have -- they
chronicle all the people that have spoken or met with them. And on
January 7th, 2002, a meeting took place with Kenny and Jerry
Blocker. Kenny and Jerry Blocker requested to meet and discuss
properties. The housing initiative project was explained. Questions
were raised about program benefits and requirements for landscaping,
et cetera. Questions were also raised about developing properties to
maximum density under the Immokalee Housing Initiative Project
LDC 2.2.29.
It was determined that the initiative project does not allow
additional development of property stressing maintaining current
density. Therefore, the property owners were informed of site
improvement plan review under current zoning standards, LDC 3.3.
The property owners were given a comparison of both types of
site improvement plans. And on the bottom of this there is a blocked
informational note showing Sections 2.2.29 and LDC 3.3. I'm going
to put this on the screen. It's the highlighted portion. And up above
that are the __ not my notes, but the notes ofthe people that arranged
these meetings and held these meetings and it's a status report.
All the citizens that attended these meetings are listed, not just
the Blockers, of course, but all other residents. That might even
include the Collins, because certainly their property is noted as -- on
the __ on the list of properties. And I believe there's 75. I'll put this on
the screen.
The legend of how many properties were being considered and
the Collins' property is listed on there. It's circled as -- it's -- oh, it's
noted as Parcel 27, Kenneth Blocker, mobile home park, oh, no. That's
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Colorado. Okay. We'll go down to -- okay. Item 43, Blocker Mobile
Home Park, slash, Collins, Item 43. So the -- the entire community of
Immokalee was aware of what was going on. We tried to make them
aware. We certainly held the public hearings to do so.
cHAIRMAN BARNETT: Do we have any more questious?
MR. KELLY: I--
CHAIRMAN BARNETT: Okay.
MR. KELLY: Dennis, something that's zoned industrial, you
said that a supervisor could live on the property?
MR. MAZZONE: A caretaker.
MR. KELLY: A caretaker?
MR. MAZZONE: Yes, a caretaker's residence.
MR. KELL Y: And just one?
MR. MAZZONE: Yes, sir.
MR. ](ELL Y: There are three lots. Could tbere possibly be a -.
MR. MAZZONE: Yes, sir.
MR. KELLY: Okay.
MR. MAZZONE: Ifthey were to remain three lots.
MR. KELLY: Okay.
MR. MAZZONE: And with -- with -- with industrial use on
them, we would allow for a caretaker's residence. We don't -- there is
restrictions. It would be for that industrial use.
MR. KELLY: Okay.
CHAIRMAN BARNETT: Go ahead.
MR. LEFEBVRE: I have another question or clarification. At
some point yOU said that there was one year from an approval ofLDC,
Land Development Code. They have one year to bring something to
compliance. I wasn't -- can you just --
MR. MAZZONE: 1 believe that was quoting from the
regulations of 1965.
MR. LEFEBVRE: 1965. Okay.
MR. MAZZONE: Bear with me.
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MR. LEFEBVRE: Sure.
MR. MAZZONE: 1 misspoke. They were the regulations --
MR. LEFEBVRE: Of 2002?
MR. MAZZONE: No. I've got a lot of regulations here. The
1970 packet, the regulations that we cited -- it's -- comes from the
October 1970 zoning regulations for Immokalee area. And it would
be page 24. I believe that's what you're speaking of. Termination
requirements for certain nonconformities --
MR. LEFEBVRE: Uh-huh. Correct.
MR. MAZZONE: -- and down at the bottom of -- the second
paragraph under the numeral numbers (as read): Nonconformities not
involving the use of a principal structure and it goes on.
Is that what you're referring to, sir?
MR. LEFEBVRE: Yes, sir.
MR. PONTE: I have a question for the county. If it was one of
the respondent's options is to apply for a rezone, how long would that?
What kind of timetable are we looking at to be either successful or not
successful?
MS. ARNOLD: Well, in this particular case because Ibelieve
the area is not only zoned industrial, it's also designated industrial on
the master plan, the Immokalee master plan. It would have to go
through a comp plan amendment. And that's a very lengthy process.
It's over a year.
MR. PONTE: Okay. Over a year?
MR. BLOCKER: If it ever gets done.
MR. PONTE: One other question, then. Is it a realistic option or
not?
MS. ARNOLD: I --1 think in the county's consideration of
whether or not they would maintain this as residential as opposed to
industrial, they would probably look at some ofthe things that you-all
talked about, the adjacent land uses and whether or not it's conducive
or, you know, conforming or something that is compatible with
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residential. Seeing that there's an airport to the northeast of the
property, there's heavy industrial completely around it, I'm not sure a
._ a planner would consider that tbose adjacent uses were compatible.
MR. PONTE: Thank you.
MR. LEFEBVRE: Would the density be conforming to -- to a
residential use?
MR. MAZZONE: No, sir. Not as it exists.
CHAIRMAN BARNETT: Are there any other questions? If not,
I'm going to close the public hearing.
MR. MAZZONE: Ma'am, before you do that, do I enter my --
my photos as exhibits before you do that?
MS. ARNOLD: It's already done.
CHAIRMAN BARNETT: We already did it.
MR. MAZZONE: Oh, okay. And I also want to enter my
stipulated __ our stipulation that we have a recommendation.
CHAIRMAN BARNETT: Okay. 1 haven't seen the
recommendation so...
MR. MAZZONE: No. I was going to state that to you.
CHAIRMAN BARNETT: Okay. If you go ahead, please.
MR. MAZZONE: This stipulation is for Code Enforcement Case
No. __ Nos. __ we combined the three cases, 2006-16, 2006-17 and
2006-18. The violations noted in the referenced notice of violations
are accurate and a __ and a -- and that we stipulate to their existence.
Should I read all the sections and -- it's part of the stipulation. It's
quite lengthy. It was read by the clerk.
CHAIRMAN BARNETT: Why don't we just say the stipulations
that have already been read.
MR. MAZZONE: This -- the -- this -- this stipulates all of the
ordinances and sections that were already previously read by the clerk,
our __ our code enforcement coordinator.
Stipulation No.1 is that the respondent pay operational costs in
the amount of $1,062.54 incurred in the prosecution of the
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above-noted three cases.
Stipulation 2 is that respondent abate all violations by ceasing,
desisting all residential dwelling use beyond that of traditionally
accepted caretaker occupancy, use of all structures located on
industrial-zoned property in Collier County known as Lots 6, 7, 8, 9
and 10, Block 48, New Market Subdivision, ID Nos. 63864720000,
next No. 63864680001 and the next No. 63864760002 within 60 days
__ 60 days after Code Enforcement Board hearing dated 4/27/06 or by
6/28/06 or a fme of $1,000 per day per parcel will be imposed each
day the violations continue.
If respondents elect to rezone properties in question, respondents
shall contact the Collier County Zoning and Land Development
Department and schedule a preapplication inquiry and review within
ten days of the CEB hearing dated 4/27/06 or by 5110/06 or a fme of
$1,000 per day will be imposed until the preapplication meeting is
scheduled.
Under this very same paragraph A -- as (A), respondents shall act
with due diligence in pursuit of said rezone and obtain with -- obtain
same within 180 days of the date of the preapplication inquiry review
or a fine of $1,000 per day will be imposed each day the violation
continues.
(B) concurrent with the rezone process, the respondents engage
the services of a design professional to prepare and submit a site
development plan for Collier County Zoning and Land Development
personnel's review and approval within 60 days of rezone approval or
a fme of $1,000 per day will be imposed each day until a site
development plan or site improvement plan is submitted.
(C) upon approval ofthe site development plan or site
improvement plan, respondents shall act with due diligence to submit
a complete and sufficient application for Collier County building
permits for all improvements for residential use of properties in
question within 60 days of said approval or a fme of $1,000 per day
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per parcel would be imposed each day until permits are submitted.
(D) respondents shall receive all required inspections and
certificate of completion within 120 days after issuance of
aforementioned building pennits or a fine of $ l, 000 per day per parcel
will be imposed each day the violation continues.
And No.4, or respondents shall obtain a complete and sufficient
Collier County demolition permit within 90 days after this Code
Enforcement Board hearing dated 4/27/06 or by 7/28/06 or within ten
days after abandoned pursuit of a site development plan or a site
improvement plan, whichever is appropriate -- applicable or a fine of
$1,000 a day per parcel will be imposed each day the violation
continues.
Upon having obtained a demolition permit, respondents shall
then execute same by removing all nonapproved, nonpermitted
additions, improvements, use and resulting debris within 180 days
after Code Enforcement Board hearing dated 4/27/06 or by 10/28/06
or 90 days after a site development plan or site improvement plan
abandnnment or a fine of $ l, 000 per day per parcel will be imposed
each day the violation continues.
Respondents shall provide Collier County Code Enforcement
with written notification that the violations have been abated and
request an on-site inspection to confirm same.
I'd like to submit this stipulation as our recommendation.
MR. DEWITTE: Would you please put it on the overhead as
well?
cHAJ.RMAN BARNETT: Yeah. Put it on the overhead, please.
MR. MAZZONE: Yes.
cHAJ.RMAN BARNETT: With that I'm going to close the
public hearing.
MR. BLOCKER: Can I say one more thing, please?
CHAIRMAN BARNETT: Sure.
MR. BLOCKER: In regards -- I mean, they know that this
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property cannot and will not be rezoned by Collier County in -- in
situations that's there. So basically they know what -- what can
happen, what's going to happen if -- this park has been there since the
'60s. So they're basically putting me out of business by saying you're
no __ you're no longer here no more. When something was put in in
the '60s, that should be grandfathered in as a mobile home park or a
mobile home overlay should be issued on this piece of property as
long as there is mobile home residential activity on the property.
Now, if it shuts down for some reason which 1 understand -- you
know, if something shuts down over six months at a time, it loses that
grandfather law in a business. Then automatically it goes to whatever
the zoning is. So if somebody come in and want to reopen it six
months later, they could not do it. This park has never been shutdown.
It's always been ran as what it is today.
And I would ask that -- that -- and I don't think the county can
legally shut me down like that. I mean, I don't see it justifiable that
they can do that and say, Hey, you're lost. I mean, this is what we
have for you. I don't see that -- 1 mean, it's just unjustifiable. And in
the Supreme Court never hold up. That will never hold up.
CHAIRMAN BARNETT: Thank you. At this time I'm closing
the public hearing and opening it up to only board members for
discussion.
MR. KELLY: Well, I have some points to make, if I may.
CHAIRMAN BARNETT: Sure.
MR. KELLY: 1 also sit on the Affordable Housing Commission
and I understand what Mr. Blocker --
I'm sorry. Test. Is it working?
MR. DEAN: Yeah. I think you just got to talk into -- or you can
use mme.
MR. KELLY: Thank you. As a member of the Affordable
Housing Commission we -- we took a ride just two weeks ago out to
Imrnokalee and 1 attended the public meeting with the commissioners
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__ a few of the commissioners and the county managers and some of
the staff that are here today. There are a number of topics that were
discussed and I'm slightly familiar with the mobile home development
plan and the fact that it had -- I believe it's expired noW.
But there was a finn commitment made at that time at that
meeting to reopen it both by Commissioner Coletta and by the county
manager to provide additional funding wherever possible. For
instance, from government grants through the USDA waive to dump
fees for any trailers or homes or structures that weren't quite up to
code. And assistance with expediting any type of zoning changes that
they might wish to apply for.
One of the thing __ one other thing that we learned on that trip
was that a migrant camp, a true migrant camp that's zoned and
permitted as a migrant camp is not allowed to lease or rent space to
anyone that does not work in the migrant fields. And specifically
states they have to actually work with their hands with vegetation in
the field. Which means they can't even work in a packing house.
So as if Mr. Blocker is renting to anyone other than an actual
migrant worker, he's probably in violation of something there and
eventually will be shutdown anyways. And I believe under his own
testimony, he doesn't like to rent to migrant workers. So there may be
additional problems there.
I __ I __ one other question, is there a quorum without me on this
vote or do you need me?
MR. DEWITTE: We have a quorum without you.
CHAIRMAN BARNETT: We do have quorum without you.
MR. KELLY: Okay. So I'll abstain from voting. Thank you.
CHAIRMAN BARNETT: Any other comments? Questions?
MS. ARNOLD: 1 think you might have to state why. 1 mean, I
don't know if you can automatically abstain.
cHAIRMAN BARNETT: We have a quorum.
MS. RAWSON: Well, who's the first alternate?
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CHAIRMAN BARNETT: He's the alternate.
MS. RAWSON: Oh, that's right. He is the alternate.
CHAIRMAN BARNETT: But we have a quorum without him.
MR. DEWITTE: Why -- why do you wish not to vote?
MS. RAWSON: You wish to abstain from voting?
MR. KELLY: No. I mean, obviously, I would like to vote, but if
there's already a quorum, as an alternate I'm not needed.
MS. ARNOLD: I think the way our rules read is that in the
absence of one of the regular members, the alternate will participate
and vote.
MS. RAWSON: Right. Even -- even if there's a quorum.
MS. ARNOLD: Yes, even if there is one.
MR. KELLY: Okay. Thank you.
CHAIRMAN BARNETT: Any other discussion? Anybody?
MR. PONTE: If you really want to discuss it, we have a bit ofa
conundrum because one of the recommendations was possibly
rezoning, but that doesn't seem very likely. The big question, of
course, is the one we've heard before today in another case and that's
grandfathering, what existed, what was there, what attention do we
pay to it, if any. The attorney for the county has said it really isn't this
board's consideration right noW. It's a zoning matter and that's how it
really is focused. So I suppose that you could find a violation.
CHAIRMAN BARNETT: Okay. Go ahead.
MR. PONTE: Just to close that part of it then get to a
recommendation which to either -- either rezone or -- or demolish, 1
guess, is where you're left.
CHAIRMAN BARNETT: Okay. Well--
MR. PONTE: I don't know. Let's discuss it. I don't -- I don't
want to jump to that. It's just what's going around in my head.
CHAIRMAN BARNETT: I realize that it -- 1 wrangle a problem
when I see permits that have been approved, multiple permits, on
something, how they can all be just taken away by the county. I have
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an issue with that because what if somebody wanted to come up and
change the zoning on my home?
MR. PONTE: I do too. I agree with you.
CHAIRMAN BARNETT: And I don't know how to handle that.
And I'm __ I'm looking to the state attorney -- or the county's
attorney for that because, you know, what protection does anybody
have if they have a permit?
MR. GRIFFIN: Well, and I understand the difficult position that
sometimes puts boards in.
ClWRMAN BARNETT: I mean, because there's not one
permit in here. He's shown us five.
MR. GRIFFIN: Right. Right. What might have been helpful
and now that the public hearing is closed, probably wouldn't be able to
be offered into evidence, would be a little more in terms of the
applications that were actually submitted to obtain these permits. And
so that would have been useful to see exactly what information the
county was relying on when it granted these permits.
We can certainly assume that the permit application reviews were
complete and careful, but without having more information on exactly
what discussions were held or what application information was
submitted, it's very difficult to go back and second guess and try and
figure out who made the mistake and when it was made or if there was
a mistake made. But without that, I can only reiterate what 1 said
before, that if the county makes a mistake and issues a permit in error,
there is a process under our code that it can go back and fiX that.
MR. DEAN: Madam President --
ClWRMAN BARNETT: Yes.
MR. DEAN: I'd just like to say one thing. The -- you know,
when you go back 40 years, I mean, who's going backwards in the
past? You know, that was a brand new property then and maybe there
were only 50 cars around there or something. Now there's probably, I
don't know, over 200 there. And the whole area is probably so
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blighted, that you're trying to undo the puzzle. And certainly it has to
change. Just because it was that way 40, 50 years ago, I mean, you
can't leave it that way.
And we're talking about quality of life again. People come to this
country. They want to see something a little better. Just because we
house them in an area where it's blighted, that's not helping them.
That's not doing anything for them. Really.
What does it take to clean up that property? What does it take to
work with the code enforcement that you've been asked to do and you
wouldn't sign the application that stated, are you aware of these facts.
So obviously you're not communicating and I don't understand why
not. Because you're not going nowhere. You got to resolve the issue.
MR. BLOCKER: The reason I didn't sign was they asked me to
obtain a demolition permit.
MR. DEAN: I'm sorry?
CHAIRMAN BARNETT: That's just a comment. He's just kind
of talking in general.
MR. BLOCKER: Oh, okay.
MR. DEAN: So that's just how I feel. I mean, are we going
backwards? We saw the pictures. That's deplorable and.- and we
should do something about it.
Thank you.
MR. LEFEBVRE: I think regarding the permits, one thing we
have to look at it is if you have a house -- hypothetically you have a
house and it's zoned single family, whatever the case is, and you get a
permit. The __ not only the assumption is, but you actually have the
zoning for residential use. And then hypothetically if it's turned to
commercial for some reason, it can be grandfathered in because that's
what your use is. But the permits -- some of the permits that have
been obtained were after 1970. And at that point we know that the
zoning there was industrial. And with that argument being made, they
were __ they were granted on the assumption that they were mobile
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home use or whatever the zoning was, but it wasn't. It was industrial.
So there's no grandfathering I don't think or you shouldn't really look
at the permits as being a huge issue because they were issued on the
assumption that it was mobile home when it wasn't versus if you have
a residential property and it's zoned residential and you get a permit
and then it's changed for some reason. So I don't think that's a good
argument, a valid argument.
CHAIRMAN BARNETT: Okay. Well--
MR. DEWITTE: My only thought is the position of this board --
I mean, we don't issue zoning variances. We don't do that. We just
decide, does a violation exist or not. Again, 1 think we decide that
based on current code, by the way, not based on past code. And then
if it does, then we decide, you know, as sympathetically or as, you
knoW, assertively as we need to how to -. how to institute a remedy in
that time frame.
CHAIRMAN BARNETT: Well, I will entertain a fmding of fact
if anybody wants to --
MR. PONTE: Well, okay. Sometimes we just move it to the
next point.
And I'll make a motion that a violation exists as described in the
charging documents of CEB Cases 2006-16, 17 and 18, Collier
County Board of County Commissioners versus Jerry B. and
Kimberlea Blocker.
CHAIRMAN BARNETT: Do I have a second?
MR. LEFEBVRE: I second that motion.
CHAIRMAN BARNETT: All those in favor?
MR. DEWITTE: Aye.
MR. MORGAN: Aye.
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
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MR. KELLY: Aye.
CHAIRMAN BARNETT: Any opposed?
(No response.)
CHAIRMAN BARNETT: Now that we have a finding of fact
that the violation does exist, remedy? Would anybody like to craft a
motion?
(No response.)
CHAIRMAN BARNETT: We have a stipulation from the
county as a suggestion. I'm a little uncomfortable with some of it.
MR. PONTE: I am too because I haven't had a chance to read it.
And I can't read it and study it on the screen. Is there a way that we
can recess and make copies?
CHAIRMAN BARNETT: Take a five-minute recess?
MR. PONTE: Well, make -- make -- well, make copies of this
for everybody so that we have them and can look at them and pencil
changes and suggestions because there's nothing I can work with.
CHAIRMAN BARNETT: Does anybody have an objection to
that?
MS. RAWSON: That's fine.
CHAIRMAN BARNETT: Okay. We'll take a five-minute
recess. Come back at 1 :21.
(Short recess was taken.)
CHAIRMAN BARNETT: Okay. At this time I'd like to resume
the hearing. And we're up to trying to formulate a motion.
MR. LEFEBVRE: First question I have is, what's the maximum
we can fine in regard to this case?
CHAIRMAN BARNETT: Per the Statute 162 -- I'll pull it out
here, because we are a county that exceeds 50,000 people and it was
approved by our county commissioners, I believe, we are allowed to
have fines that shall not exceed $1,000 per day per violation for a first
violation, and $5,000 per day per violation for a repeat violation, and
up to $15,000 per violation if the Code Enforcement Board or special
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magistrate finds the violation to be irreparable or irreversible in
nature.
MR. LEFABVRE: So for each stipulation -- so should we have
__ we will have three separate stipulations; correct?
CHAIRMAN BARNETT: Correct.
MR. LEFEBVRE: Okay.
CHAIRMAN BARNETT: And you understand that, Jean?
MS . RAWSON: We'll have three separate orders.
CHAIRMAN BARNETT: Okay.
MR. LEFEBVRE: Correct.
MS. RAWSON: If you decide that you're going to do the same
on __ on __ on all three but, you know, you want to vote on it three
times because I'm going to write three orders.
CHAIRMAN BARNETT: Okay. So we basically need to do a
finding of fact on all three as well?
MS. RAWSON: Yes.
CHAIRMAN BARNETT: SO we're currently working on
2006-l6.
MR. LEFEBVRE: So then hypothetically we will have $1,000
for each if -- if we decide --
CHAIRMAN BARNETT: If that's what --
MR. LEFEBVRE: -- we decide. Okay.
CHAIRMAN BARNETI: Yes.
I do have one question to Michelle. In this stipulation it says the
operational cost of 1,062.54 incurred in the prosecution ofthe
above-noted three cases. So does that need to be divided in three per
order?
MR. LEFEBVRE: It does?
MS. ARNOLD: That's correct. I should answer on the record.
MR. DEWITTE: I think that'd be 354.18.
MS. ARNOLD: Yeah. Each would be 354.18. Thank you.
CHAIRMAN BARNETT: Okay. Is anybody ready to make a
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stab at this?
MR. DEWITTE: Can we just talk general outline before we --
CHAIRMAN BARNETT: Sure.
MR. DEWITTE: -- get into specifics? I think the stipulation that
the county set before us says a couple things. First, the operational
costs, we can't get around that, so that's that. Nothing to talk about
there.
The other is the violations, abate the violations. What abate
violations basically says is that they got to get the people out of there
in a certain amount of time frame. So let's first just talk about, are we
going to make them gel all the people out of there and how much time
are we going to give them to get them out?
MR. PONTE: I think we have to give very, very serious
consideration and not just jump to a number there because you're right
on target. Housing is housing. And we know that the commissioners
are eager to improve it. At the same time the housing that we have
seen in the photographs shouldn't be confused with some of the
housing that we've seen in the newspapers in other areas because it
certainly looks better than that. Before we rush to create a -- to
displace people and _' who are working, I think we have to carefully
craft that aspect ofthis.
cHAIRMAN BARNETT: And -- and I know if you're evicting
somebody, you have certain legal areas too. Isn't it -- I believe it's,
like, 30 or 60 days, something like that. I'm kind of looking to the
state attorney.
MR. PONTE: I think Dennis did say in his testimony he had
submitted to the Blockers a list of some ten agencies that would assist
in housing. Do 1 __ do I remember that correctly or not?
MR. KELLY: That is correct.
CHAIRMAN BARNETT: That is correct.
MR. KELL Y: Yes. But also keep in mind that everybody is
completely taxed because of the damage that was sustained after
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Hurricane Wilma. And there are a number of places that used to
operate no longer do and here we are going into another hurricane
season. Who knows what's going to bappen, obviously, but if
something did happen, that would be yet more people would be
without housing and demand would then increase,
CHAIRMAN BARNETT: Do you have a --
MR. GR\I''FIN: Steve Griffin, again, with the County Attorney's
Office. I'm not probably the expert on evictions, but I know that there
is a certain amount of notice that the landlord would have to give a
tenant. I think it's probably 30 days. I'll look overto Jean. Jean's
nodding so I would think that's probably fairly accurate.
Tbe tenant could decide to fight that, could decide to holdover,
could decide not to leave and then you'd have an .- individual civil
suits on your hands probably between the tenants and the .- and the
landlord. It's pretty difficult to say exactly hoW that all falls out and if
that actually occurs. But, yes, there is a notice period in the short
answer.
CHAIRMAN BARNETT: Thank you. I'm looking at the fme.
And generally we look at fmes and we -- we discusS the gravity of the
situation. And that is kind of hoW we denote our height fine. And I
don't recall us doing too many $l,OOO fines. I knoW it's fairly new, but
especiallY if it's an eviction situation.
MR. PONTE: Well, it's a new flUe level as well.
cHAIRMAN BARNETT: Yeah.
MR. PONTE: So it has never been done before.
CHAIRMAN BARNETT: Right. Kind of what I was thinking
so...
MR. DEWrrrE: Can I just out of curiosity since you had some
insight into the migrant __ migrant workforce here. We're coming to
the end of the crop season; am I correct?
MR. KELLY: For __ for certain crops, but there are some--
MR DEWITTE: Is it __ is there a fluctuate -' is there any date
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we should be in mind of, like, some of these people are going to be
leaving anyway in three months and kick them out in two wouldn't
make sense or is it -- does it not really come into play?
MR. KELL Y: Typically, it may. But right noW the housing
situation is so poor that even, you know, some of the smaller crops
that don't demand as many migrants, there are still enough people that
are filling up everything.
One of the other state-run facilities that was there this year is
typically empty throughout the -- you know, the off-season. And this
year it was nearly 50 percent full. So they're expecting, you know,
that to continue as things go on.
MR. DEWITTE: How do we feel about not causing them to
abate this violation, but address the other issues where they either got
to go for a rezone or go to a demo permit if they choose not to, but not
addressing this until the other is resolved?
MR. DEAN: One question on this State of Florida Department
of Health operating permit expires on September 30th, '06. And that's
migrant labor facility program residents and migrant housing, that
exprres.
CHAIRMAN BARNETT: In September?
MR. DEAN: Right. So now the Health Department expires it
and we do it on the same day makes sense, 1 mean --
MR. DEWITTE: I would agree. I would assume, though, they're
going to go for a renewal on that as well.
MR. DEAN: Well, go for renewal but we have a date.
MR. PONTE: Well, I think -- but Dennis has testified that the
Health Department just doesn't cross lines. They're inspecting for
health and hazards and safeties and what have you. And the fact that a
residential trailer park exists on a commercial property just isn't their
concern.
MR. DEWITTE: Agreed. And they need both, of course, to
operate property, both the zoning and the Health Department's
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approval. But just thinking of timing or -- you know, if we're going to
allow them to rezone __ try to rezone if that's -- we're going to pul that
as an option, it could be a year. Are we going to force everybody out
in the meantime or are we going to let tbem slay there while they go
through that process? And I think that's a question we need to answer.
MR. KELLY: Can 1 offer up one other point? lf we did make
them, let's say, for instance, evict an ofthe residents that were there
and then had additional time to resolve some of these zoning issues,
there is a possibility that the vacant housing could -' and for lack of a
better teun __ could become drug homes, could be crime.ridden areas
where there's no policing, there's no residents living there, you knoW,
properly or under rent restrictions. It could be a horrible situation that
something __ something we may be brougbt up against in the future
To'- to elaborate my suggestion would be make tbe time to evict
everybody the same time that you're going to ask either a demolition
permit to be issued or -' or.- or come into compliance for rezoning.
MR. DEWITTE: Right. Understanding that if we give them --
or with the option to rezone, we're looking at a minimum of a year out,
probably more like a year and a half to get that answer.
MR. PONTE: Yeah. And the realistic likelihood that it won't be
granted anyway. Tbat it's just we're going to put a whole lot of people
through a whole lot of steps that's not going to change anything.
MR. DEWITTE: Yes.
MR. PONTE: I mean, that's --
MR. DEWlTfE: Right. That's a possibility. Whether -- whether
the affordable housing commission or something else will step in and
see a way, but we don't know. But all we know is that we currently
don't have zoning that works so we've got to turn it over to them to
decide.
MR. PONTE: Well, maybe the only thing we can do is because
that's the scenario I've just suggested is trying to guess at the future.
And maybe jnst what we should do is to give the respondent the
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option to either apply for the zoning change andlor make the decision
to demolish. And __ and just let's see what happens. Because what
we're doing is trying to predict what's going to happen in the future.
Suppose the zoning change was granted. So if we just keep it simple
and it's going to ride for a year if we go for zoning change.
MR. MORGAN: Well, 1 would give them a chance to get it
rezoned. You know, if it takes six or eight months, and then in the
time they can decide maybe that's not what they want to do, they'll do
something else.
MR. PONTE: Yeah. The other -- you know, the other option, of
course, is that they can however they want to arrange the evictions or
let the leases expire on a nonrenewal basis, the property then can be
used for industrial purposes. That's what it's zoned for. So it's not an
end-all situation.
MR. MORGAN: Well, ifthe -- ifthe zoning fails and it's got to
be turned back to industrial anyway.
MR. PONTE: Right. So, I mean --
MR. MORGAN: There's no out.
MR. PONTE: __ what I'm saying, Jerry, he's the owner ofthe
property. So as the leases expire on this rental property, the -- you
know, just don't renew them. And then the option is to either apply
for a rezone. There's plenty of people standing in line waiting to get
housing or to convert it to industrial.
MR. MORGAN: I agree.
CHAIRMAN BARNETT: It sounds like everybody's in
agreement with that thinking, but does somebody want to craft a
motion?
MR. PONTE: A motion.
MR. LEFEBVRE: How about if there's a point in time they
decide that they can't get a rezone and they are going to go for, let's
say, a SDP for industrial -- some kind of industrial use?
MR. PONTE: Yeah.
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MR. LEFEBVRE: Do we need to have some .. I don't know if
there's a provision --
MR. PONTE: No. What I'm saying --
MR. LEFEBVRE: -- I guess, demolition.
MR. PONTE: __ what you'd have to, I guess, write in is that..
having never written this before, but leases are not to be renewed. Not
that tbe place has to be vacated within 60 days or 90 days or by
September something or other. I'm sure that they're all relatively
short-term leases.
MR. LEFEBVRE: They could be month to month following
that.
MR. PONTE: Y cab. Well, at that point that resident, that tenant
lease would not be renewed.
MR. LEFEBvRE: I think that's going to be hard to enforce.
MR. DEWlTTE: I think our power is limited to coming into
compliance with code.
CHAIRMAN BARNETT: I don't think we have anything to do
with the leasing of the properties.
MR. LEFEBVRE: I think that would be kind of hard to enforce.
The _ when a lease expires, they could say that they're month to
month.
MR. PONTE: Yeah.
MR. LEFEBVRE: So either we -- 1 think. we have to give a
definitive time frame of l80 days and a certain time that they have to
be out by or wait until rewning with a caveat there that if it does not
get rezoned and they do decide to go with industrial use, we'll have to
corne up with __ craft something in that regard.
MR. PONTE: But 1 think if you do that, you could .-looking at
wbat happened at __ I think it was called Diamond Shores and what the
county attorney SUggested, if the tenants decided not to leave, then
they countersued and you just clog up the whole court system. I think
there are 28 dwe\lings there. possibility of 28 cases. 1 mean, that's
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what eventually happened over on Port au Prince Road over there.
MR. DEWITTE: I think it's important that the zoning board take
a look at it since the zoning was in question and what's happened. So
at least give them the option to do that. So let's -- what do we think
about, you know, looking at 18 months. They either have it rezoned
or demolition __ or to demolish it. Because you can't ask -- unless they
choose to demolish it. If they don't start the rezoning process, they got
to go through with the demolition, but --
MR. PONTE: I don't know that we can do that, but we can
certainly give them a date certain to start the application and leave it
open ended as to what happens when the -- when the zoning
authorities then say yea or nay, then you go to Step 2, but without
putting a deadline on it. Because what we're trying to do is say to the
zoning people, you've got to have this task resolved within 365 days.
But what we really want to do is to make sure that the process is
started as soon as possible. So we could say start it within, I think
Dennis's suggestion was 10 days or 14 days.
MR. DEWITTE: He -- he did, but then -- in Part 3, Sub-Item A,
top of the second page you see that the respondent's lack of due
diligence in pursuit of this rezoning and obtain it within 180 days.
Now, I don't think that's--
MR. MORGAN: That's not possible.
MR. DEWITTE: That's not possible, but I think it does make
sense maybe for us to put a date in there. If we don't have dates, we
don't know when to start imposing fmes.
MR. PONTE: Well, we --
MR. DEWITTE: We can always come back and if he can prove
to us that he operated in good faith and couldn't get it done in time, we
can always, you know, then give him the extension. But I think we
should put a time frame on it to keep the wheels of progress moving.
But like you said as well, also put a time frame on when they have to
go apply. And 1 think that's what he's tried to do here is put steps in
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place to make sure it happens expediently and with good diligence.
So are we going to kick the people out or not?
MR. MORGAN: What I would do is, like, give them, say, two
weeks to start the process and put an end date of six months on there.
Of course, you can renew it after the six months, you know, and if -- if
they're turned down and they have a choice. Turn it back into
industrial.
CHAIRMAN BARNETT: Michelle, I believe it's stated that to
get through a rezone process, it's going to take close to a year; correct?
MS. RAWSON: More than a year.
CHAIRMAN BARNETT: More than a year?
MR. DEWITTE: We're -- I think 18 months is a fair--
CHAIRMAN BARNETT: Eighteen months?
MR. DEWITTE: -- is a fair due diligence. If they operate in
good faith, that's the earliest they might probably get it done so...
MR. LEFEBVRE: If we're looking at a rezone, it's a two-step
process if I'm not mistaken. You'll have to rezone the property which
takes about a year from what I understand. And then a SDP would be
additional time which probably would be in my experience probably
eight months to twelve months beyond that.
But I think we should probably put in specific time frames for
each of the actions that they're going to have to do. Not just say 18
months and you must have everything completed. I think if we set up
a fme for each particular, if you don't do this, you will be fined X
amount, I think that might be a better way so we make -- make sure
that we can follow through and they don't come back in 18 months
and say, Well, you know, let's put the responsibility on them to go out
and, as Dennis put in there, ten days to set up a prehearing. Within a
certain period hire the professionals necessary to get the rezoning to
engineers, surveyors, so forth and so on. And then after a certain
period, they must submit a complete package to get the rezone done.
And just list it out in A, B, C, D fashion so they know that they have
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certain times to perform each of the items they have to perform.
MR. MORGAN: And what you're saying, ifthe zoning is turned
down, another 30 days to start the demolition.
MR. LEFEBVRE: It probably would have to be more than 30
days because we're going to -- from what I'm understanding is we're
probably going to allow the people to stay in there up until they find
out that their zone __ rezoning is -- is either acceptable or not. If it's
been accepted or denied. So that means they'll probably need more
than 30 days to evict everybody. So this is going to be a long and
drawn-out process. But I think along the way we need to know that
they're performing certain items as it would go along.
And another thing we might want to do, we've done this in
previous cases, is an update every maybe two months, three months of
what they're doing. We did that with a case --
MR. DEWITTE: That's correct.
MR. LEFEBVRE: -- the fencing company, Carter.
CHAIRMAN BARNETT: Yeah, Carter Fencing.
MR. PONTE: And just ask a question about this fine. The
$1,000 per day and the stipulation that Dennis has here says $1,000
per day per parcel. Are we looking at $3,000? Is that what he's
saying?
CHAIRMAN BARNETT: Technically we're having to do three
different orders. And so he was saying per parcel, yes.
MR. PONTE: So that would result in a fine of $3,000?
CHAIRMAN BARNETT: Per day.
MR. PONTE: Per day.
CHAIRMAN BARNETT: To the respondent.
MR. PONTE: I have a little problem with that.
MR. DEWITTE: Yeah. I think we need to just discuss -- pick a
good number for the fme in general. Maybe they'll be a little bit
different, but certainly there's some steps we're asking them to take in
the rezone process. I don't know if $1,000 per day is right if they don't
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miss those steps. So I think we can encourage them to get their time
frames addressed. Any thoughts?
CHAIRMAN BARNETT: Still waiting for somebody to craft a
motion.
MR. LEFEBVRE: We're still in the talking phase.
MR. PONTE: Why don't we -- because this is complicated.
Why don't __ father than one person craft a motion, why don't we just
take it as far as we can go and stop and then see where we -- where we
are and go on again? Because it's going to be -- it's a very difficult
item to do. I mean, we can start by -- I can say this and then you can
stop me.
I'll make a motion based on the finding of fact, conclusion of law
that violations exist in CEB Case 2006-16, 17, and 18.
CHAIRMAN BARNETT: We have to do them one at a time.
MR. PONTE: Oh, we're going to do those one at a -- we have to
do it three times. All right.
Sixteen, Collier County Board of County Commissioners versus
Jerry B. and Kimberlea Blocker, and respondents be ordered to pay all
operational costs on this case.
Then if you __ this is just stop an aside. Follow with me to
Dennis's stipulation and go down to Section 2. The respondent is also
ordered to abate all violations by ceasing all residential -- by ceasing
the rental of all residential dwellings beyond that of a traditionally
accepted caretaker occupancy within 60 days after the Code
Enforcement Board hearing of April 27, '06 or a fine of -- we're
looking at a fine of $1 ,000. Do you want to say $333? I'll just go on
and say, $333 per day -- seeing we're only doing one pafcel here.
Three hundred and thirty dollars per day will be imposed each day the
violation continues.
cHA.IRMAN BARNETT: George, the problem with that is I
thought we were discussing that we would let the individuals stay
there until we found --
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MR. PONTE: We are. That's what we're discussing. You asked
for a --
CHAIRMAN BARNETT: Okay.
MR. PONTE: -- a motion and I'm just trying to get it started.
CHAIRMAN BARNETT: Right. This is set amount in 60 days.
MR. PONTE: Okay. So we get this far--
MR. DEWITTE: Can we take a little vote just amongst us on
whether we want to -- do you want to kick the people out in 60 days or
do we want to let them stay until the rezone process is done? Who
wants to kick them out right away?
MR. PONTE: I don't think anybody wants to get them out.
MR. DEWITTE: Who wants to let them stay till the rezone
process gets done?
MR. PONTE: Rezone.
MR. DEWITTE: So I think we can strike almost all of No. 2--
MR. PONTE: Okay.
MR. DEWITTE: -- from the suggestion.
MR. PONTE: What should we put in its place?
MR. DEWITTE: I think we just -- I think it just goes away.
We're just going -- I think we'll say abate all violations by -- and then
it will be the choice of No. 3 or No.4, whichever they decide to
pursue.
MR. PONTE: Okay. Yeah. That works.
MR. DEWITTE: By either rezoning the parcel or by doing
demolition.
MR. PONTE: I think you're right.
MR. DEWITTE: Whichever they choose.
MR. LEFEBVRE: Okay. But we do have to address that
somehow that if it doesn't get rezoned --
MR. DEWITTE: Certainly. If any point in the rezone process it
fails, they have to move to their other option within so time which is
going to be eviction and demolition ofthe people.
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MR. LEFEBVRE: Just so long as that's addressed somewhere.
Now, the rezone and the SDP are two different things.
MR. DEWITTE: Yeah. And I think he outlines that. In (A) he
talks about pursuing the rezone and then once they get it, then he talks
about (B). Now that you got the rezone, you got 60 days to have
worked with somebody on an SDP and get that submitted.
MR. PONTE: Yeah. I think my feeling on that was really the
rezoning process and the hiring of professionals to do this work, really
shouldn't be done until the zoning has been approved. Otherwise, it
could be, you know, a hardship and a waste of money on the part of
this respondent to handle. So 1 don't think that should be happening
while the rezoning is still a question.
MR. DEWITTE: I don't think the stipulation calls for that. I
could be misinterpreting it, though. I think it says to do one and then
the other.
MR. MORGAN: Do you have to --
MR. PONTE: Well, what it says is concurrent with the rezone
process. That means at the same time No. 3-B rather.
MR. MORGAN: Do you have to submit a site plan, professional
engineer along with your zoning application showing your existing
improvements and your future improvements?
MR. PONTE: I don't know that. You'd have to ask the county.
MS. ARNOLD: You can do it after or you can do it concurrent
with. You have a choice.
MR. DEWITTE: And the county's proposed stipulation even
though it does say concurrently with the rezone process, it gives them
until 60 days of rezone approval -- 60 days after rezone approval to
get it submitted. So they don't actually have to turn in the SDP until
60 days after the rezone approval is submitted. So that would give
them the option of waiting until they see the outcome before they
invest too much effort into the new site plan.
MR. PONTE: So what are you saying about (B), to drop it?
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MR. DEWITTE: I think it's okay as written personally except
for the fine amount.
MR. PONTE: But it says, concurrent with the rezone process. It
means at the same time.
MR. DEWITTE: If you look at line 3 of part (B) midway
through the sentence --
MR. PONTE: Yeah.
MR. DEWITTE: It says that it will be due 60 days -- within 60
days of rezone approval. So it is not -- even though they have to, you
know, even though it says work on it currently, they don't actually
have to submit anything to anybody until 60 days after the rezone's
approved.
MR. PONTE: No. But I -- what I'm saying is if you hire
professionals to do that work at that point and you're not perfectly
confident you're going to be successful anyway, just wasting money.
MR. DEWITTE: Sure. We don't -- we don't have any monetary
of that other though to say within 60 days of the rezone being
approved, but you got to get it submitted. And so --
cHAIRMAN BARNETT: Michelle, if they were to get the
zoning and then they wanted to do the site development plan rather
than doing it concurrently, how long does it take to get a site
development plan put together and submitted, roughly?
MS. ARNOLD: Put together? I wouldn't -- I don't know. I
mean, it just depends on whoever they hire and that person'S
workload. So it would be hard for me to say, you know, who's going
to take somebody a month or three months or whatever.
I know that if the county submits or receives a sufficient
submittal, one that has -- meets all the codes and it doesn't have to be
resubmitted over and over again, the time period is not that great but
the problem is is what is submitted is not necessarily to code. And it
requires several revisions. So it takes -- that's what takes the process
so long.
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CHAIRMAN BARNETT: Okay.
MR. DEWITTE: George, if we change the word "concurrently"
until "after" so that there is no burden on them to do it--
MR. PONTE: Yes.
MR. DEWITTE: -- until the rezone process is done --
MR. PONTE: Yes. Yes.
MR. DEWlTTE: -- and then we leave it at 60 days?
MR. PONTE: Yes.
MR. DEWlTTE: Of course, if they can't do it in 60 days and
they come in because there were problems, we'll be lenient on the
imposition of flUe if that time frame wasn't long enough.
MR. PONTE: Yes.
MR. DEWITTE: So. But we won't say, Well, you had all the
time while you were rezoning to do it.
MR. PONTE: No.
MR. DEWlTTE: Because we sent in that app.
MR. LEFEBVRE: Madam Chair, one question?
CHAIRMAN BARNETT: Sure.
MR. LEFEBVRE: We have specific deeds or at least I should
say this stipulation has specific dates and monetary amounts. So if
they don't meet one and then the next one they don't meet, the flUes
are going to be more than $1,000; correct?
CHAIRMAN BARNETT: Well, it depends on what we set.
MR. LEFEBVRE: Right. But I'm just saying, as the stipulation
reads right now, we can't [me him $1,000 for not providing one step or
moving to one step and then another $1,000 for the next step.
MR. DEWlTTE: Somewhere maybe we need a cap that total
flUes will not exceed so much per day.
CHAIRMAN BARNETT: Jean, if we're listing it out because
he's doing it A, B, C, D rather than this is Violation 1. This is
Violation 2, Violation 3, he is correct, is he not?
MS. RAWSON: Yes, he is. And also there are two -- three
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alternatives. I think rezone or he can -- well, two, I guess, or he can
demolish, either-or.
CHAIRMAN BARNETT: So those are the only things that we
can actually put in up to $1,000; correct?
MS. RAWSON: Well, the way the stipulation is, their
recommendation of the county is that as -- as you go along the steps
on the rezoning process, if you don't meet one of them, you get fined.
CHAIRMAN BARNETT: But isn't that exceeding our limit of
fines? That's what I'm asking.
MS. RAWSON: I would have to put them all in separate
numbers.
MR. DEWITTE: Couldn't we easily just cap it to our max daily
andjust say that, you know, they can add up as much as they want.
Once you hit $1,000 a day, you're not going to be fmed anymore?
MS. RAWSON: Well, you need to tie in a fine for each step. So
if you look at A, B, C and D there, there's $1,000 a day suggested for
each step. And 1 don't think the intent is that if you did the fIrst step
and then you didn't get to the second step -- well, if you didn't do the
fIrst step and you didn't get to the second, third and fourth step, that
you should have $4,000 a day. I don't think that was the intent at all.
I think the intent was that if you did the first step and then you didn't
complete the second step in a timely fashion, you might get fined. I
mean, I believe that was the intent.
CHAIRMAN BARNETT: But that doesn't -- to me it doesn't
read that way. It looks like --
MR. DEWITTE: Ithink it's okay because the second fIne doesn't
come in. Like the first fine is you got to go apply for the rezone and
you get this if you don't. The second fIne doesn't start with --
MS. RAWSON: Until after.
MR. DEWITTE: If you didn't get the rezone, it starts with after
you're approved for the rezone, then this fme will accrue if you don't
do the next thing. Well, you're never going to hit that because you
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never got approved for the rezone.
The third thing says, upon approval ofthe SDP, well, you're
never going to get that fine if you didn't submit the SDP. You're still
going to be working off the old one. So I don't think that they cascade
like we think they do. I think it's, you know, labeled you do this or
you get that fine assuming you did that upon the approval, you got to
do this. If you don't, you get that fme. I think it reads well.
CHAIRMAN BARNETT: Okay.
MR. PONTE: As we look at that, suppose we were to simplify it
a little bit __ a lot by just eliminating -- just forgetting Section B, C and
D and going to No.4 and taking it from there. Because the options are
really only two things. The options are to either rezone or demolish. I
mean, that's __ those are the only things that we really can do or that
really can be done other than demolishing and then operating it as a --
as a commercial venture of some kind -- as industrial venture. So all
of this is interesting, but I think it's confusing us a lot. It's confusing
me a lot. And if we just use the Section A and then go to four, which
is the demolition section, and the usual demolition, you know,
removal of the debris stuff.
CHAIRMAN BARNETT: How about Section A with the section
that they do __ if they are granted everything, that they do have to get a
certificate of completion?
MR. LEFEBVRE: I --1 have a little bit of problem with that
because 1 would hate to have any -- this respondent or any respondent
come back saying, Well, I didn't know when I was supposed to
submit. And, geez, you know, it's been 18 months. 1 need some more
time. I just submitted two months ago. I didn't know 1 had to submit
__ I didn't know it was going to take that long.
If __ if we have something that lists it out, this is telling them,
Hey, you know, put it on your calendar. This is when you have to
have this done by. If it's not done, you know, you're not going to make
that time frame. You know, we're putting their feet to the fire as Cliff
l:
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would say, the previous chairperson. We're putting their feet to the
fire to specific dates. Do not want to see him come here in 18 months
and say, Geez, well, I haven't started it. And then they had 18 months
ofa free ride. And they can say, Well, we're just going to demo--
demo the property.
We're either going to get resolution to this very quickly by them
providing their actions in a short time frame or -- or -- or we're not.
They're either going to start the rezoning process right now and not be
fined or if we leave it out and just give them 18 months, come back
here in 18 months and say, Well, we're going to get a demolition
permit. That's what I want to avoid. I want to make sure that they
start __ start some process now and not wait 18 months. And if we just
said you need a demolition permit after 18 months, they pull a permit,
now they have another 90 days and they demolish the property and
now we're 21 months out.
MR. PONTE: What if you say in A, just look at A and insert
your time frame. And say, Respondent shall act with due diligence
and initiate the rezone application within ten days of this hearing,
obtain the same within 365 days of the date of the application inquiry
review or a fme of whatever it is you want to say per day will be
imposed each day the violation continues.
Now, ifthat doesn't happen, then the respondent can come back
before the board and say, Hey, the rezoning people are dragging their
feet. I've been there before them two or three times and we've -- it's
now 364th day of this process. I'm not going to meet that deadline. I
need an extension. We do that all the time.
MR. LEFEBVRE: But we -- we can very clearly 18 months
down the road we will know if they didn't make contact and set up an
appointment within --
MR. PONTE: Well, I'm saying doing it within ten days.
MR. LEFEBVRE: Right. But all these -- if you just leave -- it
just seems like you just want to leave it very open ended. If -- but if
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we put specific dates in here of when the SDP has to be -- or the
rezone has to be applied for and so forth, those are speciflc dates that
we can actually see when they went and submitted the rezone -- all the
paperwork for rezone, all the paperwork for the site development plan.
Those are specific dates that we can -- we can actually document
when they submitted those. But if we just go and say, Well, 18
months down the road, if you're not done, there's no -- the fine won't
start until 18 months down. I want us to have that fine start as soon as
possible if they __ ifthey do not do what they're supposed to do.
MR. PONTE: Well, it would. It would start within ten days.
CHAIRMAN BARNETT: Excuse me, gentlemen.
MR. DEWITTE: Oh, I was just saying that I need to leave in
about ten minutes. 1 just wanted to make the board aware. Also I
think I've got a motion kind of drafted.
MR. PONTE: Let's hear.
MR. DEWITTE: I think I've kind of exposed it. Before I give it,
is everybody okay with $150 a day fme per parcel? I mean, to me
that's 450 bucks a day. That's a lot. I don't know if! want to fine
somebody $1,000 day. I mean, 100 days, 100,000 bucks is just like--
so, anyway, pay the operational costs in the amount of$1,062.54.
CHAIRMAN BARNETT: $354.18.
MR. DEWITTE: Oh, okay.
MR. PONTE: Just -- just to be clear because I had started by
making a motion. I'm withdrawing my motion. It's your motion.
MR. DEWITTE: So give me that number again. It's 300 --
CHAIRMAN BARNETT: 354.18.
MR. DEWITTE: $354.18 incurred in the prosecution of this
case. And it's understood that the stipulation will probably apply
across the board to the other two cases as well -- or this motion.
The __ we will say that they need to pursue one of two paths.
Either, one, rezone the parcel. And so if they elect to rezone the
property in question, they shall contact the Collier County Zoning and
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Land Development Department and schedule a preapplication inquiry
and review within 14 days of the CEB hearing dated 4/27/06 or a fine
of $150 per day will be imposed until the preapplication meeting is
scheduled.
The respondent shall then with due diligence and pursuit of said
rezone obtain the same within 365 days of the date of the
preapplication inquiry review or a fine of $150 per day will be
imposed each day the violation continues.
After the rezone process, the respondent must engage the services
of a design professional to prepare and submit a site plan development
for Collier County Zoning and Land Development personnel's review
and approval within 60 days of the rezone approval or a fine of $150
day will be imposed each day until the SDP/SIP is submitted.
Upon approval of the SDP/SIP, respondent shall act with due
diligence to submit a complete and sufficient application for the
Collier County building permits for all improvements for residential
use of the property in question within 60 days of said approval or a
fine of $150 per day per parcel will be imposed each day until the
permits are submitted.
Respondent shall receive all required inspections and certificates
of completion within 120 days of issuance of the aforementioned
building permit or a fme of $150 per day per parcel will be imposed
each day the violation continues.
If at any point in time they stop the rezone process or if initially
they would like to go for a demolition permit and if they stop the
rezone process, they must be for a demolition permit, the respondent
shall obtain and complete -- obtain a complete and sufficient Collier
County Demolition Permit and desist in all residential use of the
property within 90 days after the CEB hearing date or within ten days
after abandoned pursuit of the rezone process or of the SDP/SIP or any
desisting in pursuing the rezone whichever is -- whichever is
applicable or a fme of $150 per day per parcel will be imposed each
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day the violation continues.
Upon having obtained a demolition permit, the respondent shall
then execute the same by removing all nonapproved, nonpermitted
additions, improvements, use and resulting debris within 180 days
after the CEB hearing dated 4/27/06 or 90 days after the SDP/SIP
abandonment or a fine of $150 per day per parcel will be imposed
each day the violation continues.
And then as another measure, the respondent shall provide
Collier County Code Enforcement with written notification that the
violations have been abated and request an on-site inspection to
confirm the same and provide this board with a quarterly update on
the progress.
MR. LEFEBVRE: One -- one thing is under, 1 guess, four and
then A, we can't tie the demolition permit and it says, Remove all
nonpermitted additions, improvements and use resulting debris within
180 days of CEB hearing.
MR. DEWITTE: Oh, I'm sorry. Correct.
MR. LEFEBVRE: Because that -- we got to tie it into them not
getting the rezone.
MR. DEWITTE: Well, it says it's either 100 days from CEB
hearing or 90 days after the rezone is abandoned, the SDPISIP or
rezone process is abandoned so it's either-or.
MR. LEFEBVRE: Okay. Thank you.
MR. DEWITTE: I think one possible amendment to what I said
should be when I said that they shall desist in all residential use except
for that permitted as a caretaker unit, one per on the industrial setting.
CHAIRMAN BARNETT: We have a motion on the floor. Do I
have a second?
MR. KELLY: Second.
CHAIRMAN BARNETT: All those in favor?
MR. DEWITTE: Aye.
MR. MORGAN: Aye.
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April 27, 2006
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
MR. KELLY: Aye.
CHAIRMAN BARNETT: Any opposed?
(N 0 response.)
CHAIRMAN BARNETT: That was for Case 2006-16.
I need to have a finding of fact for Case No. 2006-17.
MR. PONTE: Can we just say ditto?
MS. RAWSON: I think you can say at this point in time because
that was a very detailed motion that you find the same findings of fact
and order of the board in the other two cases.
CHAIRMAN BARNETT: Okay. I will entertain that as a
motion.
MR. PONTE: Well, why don't we --
CHAIRMAN BARNETT: Can I just say that, Jean, then?
MS. RAWSON: Well, I'd like a vote.
MR. DEWITTE: So motioned.
MR. LEFEBVRE: Second.
CHAIRMAN BARNETT: All those in favor?
MR. DEWITTE: Aye.
MR. MORGAN: Aye.
CHAIRMAN BARNETT: Aye.
MR. LEFEBVRE: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
MR. KELLY: Aye.
CHAIRMAN BARNETT: Any opposed?
(No response.)
CHAIRMAN BARNETT: Okay. Do you guys understand?
That concludes that case.
Page 118
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,
Patrick G. White
Of Counsel
(239) 593-2963
pwhite@porterwright.com
5801 Pelican Bay Boulevard
Suite 300
Naples, Florida 34108-2709
Facsimile: 239-593-2990
Toll Free: 800-876-7962
September 19, 2007
Susan Istenes, AICP
Director of Zoning and Land Development
Review
Community Development & Environmental
Services
2800 N. Horseshoe
Naples, FL 34104
Re: Applicable Law for Blocker Property, Irnmokalee, Florida
j Dear Susan:
In anticipation of submitting an Official Interpretation request to the County regarding
uses on the Blocker property located at I I I Alachua Street, comprising Lots 6 through 10 of
Block 49 of the Newmarket Subdivision, Plat Book I, Page 105, please consider this as a request
to advise this office of the then applicable zoning regulations to the referenced property for the
time period 1950 through 1970, as well as the applicable zoning district, or if there were no then
adopted regulations.
As discussed, based on the information provided we will then make a corresponding
inquiry of the then permissible use of the referenced lands as part of an Official Interpretation.
Please let me know if you require any further information to complete the above request,
and if there are any costs associated with completing this request. Thank you.
Respectfully,
Patrick G. White
PGW:bn
cc: Jerry Blocker
Jeffrey A. Klatzkow, Managing Assistant County Attorney
NAPLESf32946J v OJ
Cincinnati. Cleveland. Columbus. Dayton. Naples, FL . Washington DC
www.porterwright.com
~, ~per, Mar~aret L.
')m:
<.,J~nt:
To:
Cc:
Subject:
Attachments:
White, Patrick G. <PWhite@porterwrightcom>
Thursday, October 18, 2007 1004 AM
FrenchJames
Paratore, Rebecca; arnold_m; IstenesSusan, KlatzkowJeff, SchmittJoseph
RE: Blocker- request for County records
NAPLES-#329461-v1-Blocker _- _Istenes Jet DOC
Jamie,
By CC: Beki will contact you today to arrange a time & place soonest that we can come down and review the County's zoning records
for the substance of what is in the attached letter request
!;!
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What we need to review, and possibly copy, are the County's records for zoning from 1950 to 1970, and any zoning maps for the
Immokalee area for those regulations from the same time frame, as Illore specifically stated in the letter
Thank you-
~
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Patrick
239 593-2963 direct
pwhitela1porterwrightcom
~***************************************************
. .-lIS MESSAGE IS INTENDED ONLY FOR USE BY THE INDIVIDUAL TO WHOM IT IS ADDRESSED AND MA Y
CONTAIN INFORMA nON THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER
APPLICABLE LAW. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering
the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this
communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately and
delete the original message immediately. Thank you,
*************************************************
1
~
~ ~er, Margaret L.
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To:
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Subject:
White, Patrick G. <PWhite@porterwrightcom>
Thursday, October 18, 2007 10: 19 AM
FrenchJames
Paratore, Rebecca
RE: Blocker- request for County records
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OK, I have received that voice mail and forwarded Maria's inquiry & number to Beki by this e-mail, Maria's number is as stated, 252-
2989.
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Thanks-
Patrick
239 593-2963 direct
I
I Dwhite@oorterwrieht.com
*****************************************************
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THIS MESSAGE IS INTENDED ONL Y FOR USE BY THE INDIVIDUAL TO WHOM IT IS ADDRESSED AND MA Y
CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER
APPLICABLE LA W. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering
the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this
'1mmunication is strictly prohibited. If you have received this communication in error, please notify the sender immediately and
.Jete the original message immediately. Thank you.
1
*************************************************
-----Original Messagenm
From: FrenchJames (mailto:iamesfrench0'colliereov.net)
Sent: Thursday, October 18,200710:16 AM
To: White, Patrick G.
Cc: Paratore, Rebecca; arnold_m; IstenesSusan; KlatzkowJeff; SchmittJoseph; eSlradamaria
Subject: RE: Blocker- request for County records
Patrick,
I have already put my group on alert and they are researching your
request right now, I have asked Maria Estrada, 252-2989, to contact you
or Becky with any further questions that staff may have pertaining to
this request.
Thank you,
Jamie
James C French, Operations Manager
~ommunity Development and Environmental Services
;ollier County Government - Naples, Florida
239.659.5717 (office) - 239.4032420 (fax)
["~
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<<RE: Blocker- request for County records>> <<RE: Blocker- request for County records>>
From: Paratore, Rebecca
'nt: Thursday, October 18, 2007 11:45 AM
.0: White, Patrick G.
Subject: Blocker PRR
Just spoke w/Maria. She has been told there are no zoning maps going back to the 1950s. I
filled her in. She has had no response as of yet from Susan to our request.
BekV
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',j Rebecca Paratore
w
I Real Estate/Land Use Paralegal
Porter Wright Morris & Arthur LLP
5801 Pelican Bay Blvd, Suite 300
aples, Florida 34108
239/593-2940
239/593-2990 Fax
800/876-7962
********************************************************************************
****
This message is intended only for the use of the individual or entity to which it is addressed and may
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in error, please notify the sender immediately bye-mail or telephone and delete the original message
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"'*********Notice from Porter Wright Morris & Arthur LLP**"'*******
~"is message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not
,d, print or forward it Please reply to the sender that you have received the message in error Then delete it Thank
you.
To comply with certain U,S. Treasury regulations, we Inform you that any federal tax advice contained in this message,
including attachments, is not a covered opinion as described in Treasury Department Circular 230 and therefore cannot
be relied upon to avoid any tax penalties or to support the oromotion r>r m~d"ot;nn nf ~"" f_~___'.. . "
November 29, 2007
1 TRANSCRIPT OF THE MEETING OF THE
j CODE ENFORCEMENT BOARD
, Naples, Florida
November 29,2007
,
1 LET IT BE REMEMBERED, that the Code Enforcement Board, in
,
I and for the County of Collier, having conducted business herein, met
on this date at 9:00 a.m. in REGULAR SESSION in Community
Development and Environmental Services, Room 609/610, 2800
Hor~eshoe Drive, Naples, Florida, with the following members
present:
CHAIRMAN:
Sheri Barnett
Larry Dean
Kenneth Kelly
Richard Kraenbring
Gerald Lefebvre
Lionel L'Esperance (Alternate)
George Ponte
Charles Martin (Excused Absence)
Jerry Morgan
ALSO PRESENT:
Jean Rawson, Attorney for the Code Enforcement Board
Michelle Arnold, Code Enforcement Director
Bendisa Marku, Operations Coordinator
Page 1
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CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA
AGENDA
Date: November 29,2007, at 9:00 a.m.
Location: 2800 North Horseshoe Drive, Naples Florida, Community Development and Environmental Services
Room 609/610
NOTICE: THE RESPONDENT MAY BE LIMlTlED TO TWENTY (20) MINUTES FOR CASE
PRESENTATION UNLESS ADDITIONAL TIME IS GRANTED BY THE BOARD. PERSONS WISHING
TO SPEAK ON ANY AGENDA ITEM WILL RECEIVE UP TO FIVE (5) MINUTES UNLESS THE TIME IS
ADJUSTED BY THE CHAIRMAN.
ALL PARTIES PARTICIPATING IN THE PUBLIC HEARING ARE ASKED TO OBSERVE ROBERTS
RULES OF ODER AND SPEAK ONE AT A TIME SO THAT THE COURT REPORTER CAN RECORD
ALL STATEMENTS BEING MADE.
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, WIllCH RECORD INCLUDES THE
TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER
COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSffiLE FOR PROVIDING
THIS RECORD.
I. ROLL CALL
2. APPROVAL OF AGENDA
3. APPROVAL OF MINUTES - October 25, 2007
4. PUBLIC HEARINGS
A. MOTIONS
Motion for Withdrawal
1, BCC vs. Horse Creek Partners, L TD
CEB 2007-4 J
Motion for Continuance
1, BCC VS. Glen and Sharon Van Slyke
CEB 2007-119
Motion for Modification of Orders
1, BCC vs. Jerry and Kimberlea Blocker
2. BCC vs. Jerry and Kimberlea Blocker
3. BCC vs. Jerry and Kimberlea Blocker
CEB 2006-16
CEB 2006-17
CEB 2006-18
B. STIPULATIONS
C. HEARINGS
I. BCC vs, John Farrell
2. BCC VS. E'S Country Store, LLC
3. BCC vs, Jaime Lam. Don Lee and Linh Lam
4. BCC vs. James W, Craft
5. BCC VS, Ramon Cabrera and Rosa M. Pittaluga
6. BCC VS, Ramon Cabrera and Rosa M. Pittaluga
7. BCC vs. Jobani Gonzales
8, BCC vs. Jobani Gonzales
9. BCC VS. Emma Houston
10, BCC vs. Stanley Fogg lL and Theresa M, Fogg
II. BCC vs. Subway Plaza. Inc
12. BCC vs, Tollgate Commercial Center
13. BCC vs, Naples South Realty Associates, LLC
14. BCC vs, Glen and Sharon Van Slyke
15. BCC vs. Yunier E. Ortiz
16. BCC vs, R.P.K. Enterprises of Bonita, Inc
17. BCC vs. Horse Creek Partners, L TD
CEB 2007-82
CEB 2007-96
CEB 2007-106
CEB 2007-107
CEB 2007-110
CEB 2007-111
CEB 2007-112
CEB 2007-113
CEB 2007-114
CEB 2007-115
CEB 2007-116
CEB 2007-117
CEB2007-118
CEB 2007-119
CEB 2007-120
CEB 2007-121
CEB 2007-122
5. OLD BUSINESS
A. Request for Reduction of FineslLiens
B. Request for Imposition of FineslLiens
.
4. BCC vs. Jerry and Kimberlea Blocker
5. BCC vs. Jerry and Kimberlea Blocker
6. BeC vs, Jerry and Kimberlea Blocker
7. BCC vs. Joseph Ferio Francois
8. BCC vs. Alfredo and Miradis Miralles
CEB 2006-16
CEB 2006-17
CEB 2006.18
CEB 2006-52
CEB 2007-79
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~ C. Request to Forward to the County Attorney's Office
.
I. BCC vs. EJ Properties, LLC Leonardo D. Starke, ESQ., Reg. Agent
2. BCC vs. Patrice E. Savignano
CEB 2005-09
CEB 2005-28
6. NEW BUSINESS
A. Code Enforcement Board Rules and Regulations
7. REPORTS
8. COMMENTS
A. Affirmative Defense nnder Ordinance No. 2007-44
9. NEXT MEETING DATE - January 24, 2008
10. ADJOURN
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November 29,2007
MS. ARNOLD: And that particular request was provided to you.
The respondent I don't believe is present, and is requesting a
continuance for I think three months.
MS. O'FARRELL: Ninety days.
MS. ARNOLD: Ninety days.
CHAIRWOMAN BARNETT: Looks like she's going to be out of
town, according to the paperwork that we received.
I'll entertain a motion.
MR. PONTE: I'd like to just make an observation. The request
that the respondent has made to continue this case for at least three
months I think is unreasonable. This case has been around since July
of 2006. She hasn't suggested a specific date, it's just at least three
months. I would say it's okay to continue this to January 24th, but
certainly to deny the continuance indefinitely.
MS. ARNOLD: And that would be the county's position as well.
MR. LEFEBVRE: I second that motion, if it is a motion.
MR. PONTE: It's a motion.
CHAIRWOMAN BARNETT: All those in favor?
MR. KRAENBRING: Aye.
MR. DEAN: Aye.
MR. KELLY: Aye.
CHAIRMAN BARNETT: Aye.
MR. MORGAN: Aye.
MR. PONTE: Aye.
CHAIRWOMAN BARNETT: Any opposed?
(No response.)
CHAIRWOMAN BARNETT: We're going to go ahead and
continue until the 24th.
The next case is a motion for modification of orders. And it's
actually three cases. CEB-2006-16, 2006-17, 2006-18.
But before we start, I would like to read something from our rules
and regs. And it basically states, a party may motion a rehearing on
Page 6
November 29, 2007
i
the board's order based only on grounds that a decision was contrary
to evidence of that hearing involving an error or ruling of law which
was fundamental to the decision of the board.
The written motion for rehearing shall specify the precise reasons
thereof. The motion for rehearing shall be written and sent to the
secretary of the board within 10 days of the date the order is received
by the party but no event more than 20 days from the date of mailing
of the order.
The order of the board shall be stayed and the time for taking an
appeal tolled until motion for rehearing has been disposed of and the
decisions received by the parties provided.
However, that in no event shall the order be stayed for a period
longer than 20 days from the date of the mailing of the rehearing
notice or decision.
In that case, this isn't necessarily a request for a rehearing.
They've never made that request, as I understand. It's a modification of
orders, but we can't really do a modification of orders, according to
our attorney in this case.
And I'm going to turn it over to Jean to explain it, because I
spoke to her prior to this meeting.
MS. RA WSON: Well, basically there's nothing in our rules and
regulations, or actually in the statute that allows you to modify an
order. You can have a rehearing, but you have to do it in a timely
fashion. And that hasn't happened here.
Obviously they can file an appeal within 30 days. That hasn't
happened here. So he -- the respondents are back here to ask you for
some relief. Maybe a better motion would be an abatement of the
fines.
You know, you've read his motion to modify and, you know, I
certainly want you to hear his legal argument, but you have to be able
to make orders within the parameters of our rules, which parrot
Chapter 162.
:n
Page 7
November 29, 2007
I
CHAIRWOMAN BARNETT: So in order to proceed, Michelle, I
don't think we can hear it as requested.
MS. ARNOLD: Well, I would suggest that you hear what the
request is and give Mr. White his day in court, so to speak.
MS. RAWSON: Yeah, I would, too. Because you can't
necessarily go by the title in a motion. You know, let's hear from Mr.
White and see what kind of relief he is requesting.
CHAIRWOMAN BARNETT: Okay.
MR. WHITE: Good morning.
CHAIRWOMAN BARNETT: We need to swear you in, please.
MR. WHITE: Yes, Madam Chair. I was going to ask that all
parties who intend to testify.
CHAIRWOMAN BARNETT: Okay.
(Speakers were duly sworn.)
MR. WHITE: I'd just like to start, Patrick White with the law
firm of Porter, Write, Morris & Arthur. I'm here representing Jerry and
Kimberlea Blocker on the three matters listed on your agenda under
my motion and request.
For the record, we did in fact ask for a rehearing timely last May.
And regretfully that was not allowed. So what we have is a
circumstance where although there is a bit of procedural novelty to
what we're looking for, I don't believe it's unprecedented. This board
has in fact issued orders nunc pro tunc, one of those lawyer words.
And I apologize, you know, I have to bring those things forward.
What that basically means is that you go back and you revise an
order. Because under the notions of fairness and fundamental equity,
you are recognizing that there is some aspect of your prior order that
should be modified. And that's why I've stated it as an order to modify
that prior order.
Now, for many reasons we submitted this well in advance so that
we would have all of the board members able to review what those
reasons in support of the motion were, so that you could make a test--
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November 29, 2007
or apply the test, rather, of fundamental fairness, and operating in a
way where equity would apply. .
And I believe there's nothing in your rules of procedure that
prohibits you from doing this. We're not asking for a rehearing, we're
simply saying that your prior order is one that had cause for revision
and modification, because there were aspects of it that are
fundamentally unfair. And two of them of course are the notion that
you've asked us to take an action that seems to be in excess of what's
necessary to abate the violation. That being to actually request
demolition permits.
The other of course being to take an action to rezone the property
where, in a timely manner consistent with your order, we went in and
spoke with the county staff and they advised us essentially, you can't
get there from here. If you want a rezoning, you have to first obtain
the comprehensive plan amendment.
So we're stuck in a place where unfortunately we would prefer to
be able to find some way to abate these violations, but regretfully the
, county's own processes prevent us from doing so in a timely way.
So I have no other means to come to you than to say would you
please look at your order on at least those two points and consider
under the notion of what's fair and reasonable modifying your order.
You still have jurisdiction of this case. You still have the
opportunity to essentially, if there is no rule on the subject, to create
one. There's nothing -- in fact, there's specific authority for that in
your rules and procedures. You can set them. And there's nothing that
says that you can't set them as you find them necessary, based upon a
particular case.
And I submit to you that this case is as factually long in its
history, well over 50 years, complex in terms of its procedural history
as well, in terms of what rules are supposed to have been applied
when, what the effect of your order is going to be on already approved
and existing building permits, and the idea that somehow we're just
Page 9
November 29, 2007
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trying to get to the place where I hope you want us to be and that is to
abate this violation in a way that's consistent with the county's rules.
So to come full circle, the first part of that motion is to ask to be
treated in the same manner as other mobile home parks,
nonconforming mobile home parks. To be treated in the same way that
the folks who owned this property before my clients did were given a
chance, at least under the Notice of Violation that was issued back in
2001 to the Collins. Part of their abatement that was available to them
was the site improvement process plan -- excuse me, site improvement
plan process, the SIP.
So we're asking, have been asking, and hopefully can stop asking
here, to be treated fairly and reasonably by simply being able to
participate on the site improvement plan process that the rules allow
for. And I've provided in your packets the Land Development Code
that creates the opportunity for that to take place. But in order to do
so, you do have to modify your order.
So as a procedural point of fundamental fairness, I think there are
at least three very compelling reasons why the motion should be
considered, and I believe granted.
CHAIRWOMAN BARNETT: I've got a question for you in
regards to the consent order that's in our packet.
MR. WHITE: Yes, Madam Chair.
CHAIRWOMAN BARNETT: It was not -- the one copies that
we have were not signed.
MR. WHITE: That's correct. They are pursuant to the
Department of Environmental Protection attorney's request. Attorney
named Karen Bishop. We have until tomorrow to sign those, as do the
actual landowners of the junkyard next to us. Both parties, if you will,
have till tomorrow to sign.
We would love to walk out of here knowing that we're going to
be able to abate the violations by way of the site improvement plan
process, work with the Department of Environmental Protection and
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November 29, 2007
the adjacent property owner to complete the cleanup. I have
photographs here showing the substantial level to which that adjacent
right-of-way has been cleaned up, the waste tires removed, many junk
cars removed, at least out of the easterly 40 feet of the 80 feet of the
Broward right-of-way.
On Tuesday, the Board of County Commissioners also acted to
grant us quitclaim deeds for the county's interest in that full 80 feet of
right-of-way, plus the other side. That all goes to the owners of the
junk yard, the Ratliff trust. The Blockers get the easterly 40 feet of just
Broward.
The significance of that is that for the first time with those deeds
in hand n and I told you this is a complex case. The deeds themselves
are conditioned by the county upon a signing the DEP consent order.
So there's a very strong possibility that we're going to sign the consent
order tomorrow, because we believe we need to have the ownership of
that easterly 40 feet in order to in a meaningful way participate in the
site improvement plan process.
i That 40 feet gives us the distance and area to provide for proper
setbacks, to create an appropriate wall or fence, and any buffering and
landscaping that may be required.
Additionally, the site improvement plan process, as you may
know, would allow for the replacement of some of those mobile
homes, travel trailers that could benefit from being replaced.
So we feel that it is fair and reasonable to ask for that type of
relief. Our predecessor in title had that opportunity. I don't understand
why five years elapsed before the case was prosecuted, but we are
where we are. And we're simply asking to effectively be treated in the
way that others have.
Now, I understand some of the county's objections to that
position, but I think we have good evidence and good explanations for
every aspect of it.
So if you have another question, I'd be happy to answer it.
Page 11
November 29,2007
1
I,
CHAIRWOMAN BARNETT: I do, but I think Mr. Kelly has one
also, so I'll go ahead and let him speak.
MR. KELLY: I have more of a comment. I believe if we have the
ability to dismiss an order, I think we have the ability to amend one, as
we did in the first case yet today. So that's just my position.
MS. RAWSON: You do have the ability. And we do issue orders
nunc pro tunc when there's been a mistake. Generally speaking, it's a
clerical mistake. Maybe I, you know, put 2006 instead of2007. But
nevertheless, we have issued orders nunc pro tunc when errors have
been made.
So I would ask you to listen to what Mr. White has to say, listen
to the evidence, listen to what the county has to say and make your
decision.
MR. KELLY: And I would suggest that Mr. White walk us
through step by step and then if we could have county say their
position on each one of these. It would help us understand it.
MR. WHITE: Well, I appreciate that.
Your question, Madam Chair, for follow-up?
CHAIRWOMAN BARNETT: I'll wait. It may be answered.
MR. WHITE: The significant part of the motion, and why I think
it appears first, relates to the site improvement plan process. And the
county's position has been, and I believe may explain why it wasn't
offered before, that they believe that the use is just flat out illegal. The
evidence that I provided you in the form of affidavits from former
Board of County Commissioners, two of them, as well as a neighbor
who has lived at a location literally around the comer since the mid
Fifties. Those affidavits stand simply for the idea that this use has
been there since the mid Fifties.
The difficulty we've had in working this case forward is that
we've had to keep going backwards further and further in time to be
able to demonstrate either of two things: One, that this use existed and
has continued to exist without interruption since the early -- since the
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November 29,2007
mid Fifties. Before, to the best of our ability, we can even find that
there were any county zoning regulations.
That has been my challenge. I have said to my client, we're at the
point where we need to ask Mr. Peabody for the Wayback Machine,
because we keep going back further and further in time. Because the
county's position is, you know, once you're illegal, essentially you're
always illegal and therefore you're not nonconforming. Our position is
I
MS. ARNOLD: I object to that. I'd rather speak for the county
rather than have Mr. White speak for the county.
MR. WHITE: Let me clarify, board members. My understanding
of the county's position is that we're illegal. And that is -- in that
regard. And that is not something that was stated to us until the past
two months. So we had nothing to kind of focus on as to what the
objection was until that point in time.
We have been working diligently since I was retained to work on
this case. Almost daily on finding a way to abate this violation under
the law. We believe that the site improvement plan process is one
that's available in any zoning district anywhere in the Immokalee
urban area.
As you may know, the Immokalee master plan and visioning
committee is currently looking to revise the Growth Management Plan
provisions for the Immokalee master plan.
My clients are engaged in that process, along with other family
members that have an interest in that community.
As you may know, the Blockers own a lot of property in the
Immokalee area, so they're very interested in what happens in that
community and what its reputation is throughout the county and the
region. So they're actively engaged in that process.
And I mention that because it goes back to the point about what
do you need to do in order to get the rezoning? In order to get the
rezoning that you directed us to do and that we went to the staff and
"
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November 29, 2007
asked about in a timely manner at a pre-application meeting. They
said we're sorry, we can't accept your application for a rezoning
because you first need to file for a Growth Management Plan
amendment.
Now, filing for a Growth Management Plan amendment at the
very point in time when the process to amend that master plan is
ongoing didn't seem to indicate that it was a wise expenditure of
money on my client's part to hire someone to file for a small-scale
amendment to the tune of some $50,000 just to start that process. As
some or all of you may know, that is at a minimum a two-year
process. And thereafter, probably 12 months for a rezoning is, I would
say, very optimistic. The more typical circumstance, that it's a
minimum of 18 months.
So the point is as to your order, the time that was originally
afforded was not sufficient to achieve the objective that you charged
my clients to meet. So we feel that on that ground it makes sense to at
least extend the time frame to allow for the Growth Management Plan
amendment process to work forward. And we would suggest to you
that it makes far more sense to do that as part of the Immokalee master
plan visioning process.
And to just give you an update on where that is, we appeared __ I
appeared, along with Mr. Blocker, in front of that connnittee in
August. And I asked them specifically not about the rights or wrongs
of this case but I asked them, is there anything in either the existing
master plan or what you're proposing to change in the master plan that
would somehow make us ineligible for the site improvement plan
process at the comprehensive plan level?
And I have a letter back from the chairman, Mr. Thomas, that
was directed to the County Commission Chairman, Mr. Coletta, that
basically says there isn't anything about what we have or would do in
our changes that would preclude you from being able to participate in
site improvement plan process. It is a process that's intended to operate
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anywhere and everywhere in the Irnmokalee urban area.
Now, the relevance of that is that it creates kind of an umbrella
under which the Land Development Code provision that I put into
your motion packets actually operates. And again, not looking to
speak for the county, but the explanation I believe as to why we may
not have been afforded that SIP opportunity under the original Notice
of Violation is because if you've read that provision in the portion that
I highlighted for you, it indicates that the only way that the window
that closed some year plus ago can be reopened is if this board orders
it.
The reason why that provision is in there is one that I'm very
familiar with. I wrote it. I wrote it working with Michelle. And we
wrote it for the very simple reason, one, we had to reextend the
window for a case that was then ongoing, and we did. But that time
has since passed.
But we also recognize that there was the possibility -- and I know
there are other cases out there where there are nonconforming mobile
home parks in the Immokalee urban area that are going to have to
come through somehow to have their violations, if you will,
addressed. And they're going to need this provision. And you're going
to, I believe, have to consider, the same as in this case, whether you're
going to apply that provision in a way that allows that way to cure the
violation. Effectively to say all those other nonconforming mobile
home parks that have been have been in existence for decades and the
county finally locates and prosecutes the case, you're going to be
afforded the opportunity to consider whether or not site improvement
plan process is the appropriate way to abate that violation.
The county's position, as I understand it here today, is we didn't
originally qualify for that, one because the window was closed, and
they weren't thinking that you could or should reopen it because we
weren't, quote, nonconforming, unquote.
You'll remember back to April of last year there was a significant
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amount of discussion about what were the prior rules. In fact, we've
been cited for violating the 70 regulations that are no longer even law.
They've been repealed. Repealed for decades. And yet we're cited for
violating under your order a law that no longer exists.
Minor point, one not worth mentioning in my motion, but
recognizing this is a very complex case. A lot of procedural history, I
have to bring it up.
Next I think it's important to understand that that time line I was
talking about and why it's significant that we have an opportunity for
you to understand this use has existed for well over 50 years. This
board and some of your members struggled with the idea that there
were permits from the Sixties for some of those mobile homes that
Mr. Blocker presented to you and that are part of the record. And you
struggled with the idea of well, how do we effectively eliminate those.
I'd suggest to you that this board doesn't have the authority to
revoke a building permit. I think that only the Board of County
Commissioners and potentially the building official have that
authority. But suffice it to say, that it was something that was
something that was of concern to this board. And that's because you
understood the idea of something being grandfathered.
This case is one that is the closest to what I would call
great-grandfathering, because the history is so long. We've shown you
by the way ofthe affidavits that there is a continuing long history. The
thing that's missing -- those are the facts. The thing that's missing is
the law.
And the other thing I came before this board and asked for last
month was an opportunity to have a public records request responded
to by the county. It's been a cause of concern, not only for the county
but for my client as well. And that's because we previously had a copy
of a map that although dated 1952 we couldn't tell you when it was
actually effective.
We have been through the Clerk of Courts, all of their files and
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November 29, 2007
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microfiche, we've had one of their attorneys in the vault looking for
Zoning Book 1, Page 1 that's supposed to exist. We have gone back to
the root of zoning regulations in this county, and we cannot find
anything that tells us when it began specifically. But the best we can
determine is that we believe we predated those existing rules. So --
CHAIRWOMAN BARNETT: Are you going to need a whole lot
longer? Because there is a 20-minute --
MR. WHITE: Well, I appreciate the opportunity that if I have
three cases before you that I might have 20 minutes for each. I
apologize for making that request. I know there's a lot of folks here
who would like to be heard as well.
CHAIRWOMAN BARNETT: Well, we have a pretty big docket
today --
MR. WHITE: I understand. I understand, Madam Chair.
CHAIRWOMAN BARNETT: -- so if you can make it as
expedient as possible, we would appreciate it.
MR. WHITE: My point to you is that as far as grandfathering and
nonconforming go, we believe that we have demonstrated by what we
have provided you and what we additionally can provide if you care to
see it, is that this property has been -- has either existed as a use before
there were any county rules, which is more the case, or even if you
accept the alternative, the last -- the next best set of rules we have are
from 1959. And we believe that under the zoning district we think this
property was then designated as, which is Commercia13, our use was
permitted under those rules.
So the point at which we became nonconforming wasn't until the
early Seventies when the county changed the zoning district to
industrial.
So what you have here is a case where effectively the county has
sat on its heels for well over 35 years. They attempted to prosecute the
case in 2001. In 2001 they recognized that SIP was an appropriate
way to handle this case and to abate it.
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And I submit to you that if the county had gone forward at that
time with the prosecution, my client wouldn't be here today. The site
improvement plan process would have been followed, there would
have been no violation, and we all would have been moving on to the
next case.
So what I'm asking you to do is to recognize that there's law that
allows you to amend your order in this fashion. If for some reason you
don't think that that's fair and best in this case, then the alternative I
put before you is at the minimum you should add two more years to
the time frame we have just to get us back to the place where we
might get a comprehensive plan amendment or work through the
Immokalee master plan visioning process, as we presently are
attempting to do, in order to be able to get the right kind of land use
designation for this property.
And at a minimum, I fail to understand why it is at all necessary
to have to apply for demolition permits for the structures that are on
that property. Every other use case that I've seen, and I've prosecuted a
bunch of cases in my career, simply ceasing that use is sufficient to
abate the violation. Why, can anyone explain to me, my client has to
go and destroy his buildings and his trailers in order to come into
compliance with the law. Something seems fundamentally unfair
about that. And I ask you to well consider the motion. .
If there are any questions, I'm happy to address them. There's
certainly more I can bring to your consideration of this, but I
understand that time is limited. And I thank you for bearing with us
thus far in listening to what I have to share with you.
CHAIRWOMAN BARNETT: Okay, at this time I'll turn it over
to Michelle.
MR. WHITE: Are there any questions?
CHAIRWOMAN BARNETT: I think we'll come back to
questions at the end so that we can hear both sides and then question.
MS. ARNOLD: I would agree with Mr. White that you all have
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November 29,2007
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the ability to amend your order. I would just caution the board to look
really at what he's asking you to do in his request.
Because this matter was heard by the board in April of 2006, and
yes, Mr. White pursued the first part of the order to request a
pre-application meeting, and did hold a pre-application. So he met that
portion of it. And he was advised at that preap. that he needed to go
through a plan amendment to get the rezone, but failed to pursue that
plan amendment and failed to request an amendment of your order at
that time when he was advised by staff that that was a route that would
remedy the violation.
Instead of coming back to the board at that time, there was an
appeal, in a sense, not the normal appeal that would have gone to the
civil court, but another appeal that went to a special magistrate
process. And much of the things that he discussed with you today was
discussed at that special magistrate process, and the special magistrate
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MR. WHITE: Madam Chairman?
MS. ARNOLD: Can I have my opportunity, Patrick?
MR. WHITE: No, ma'am, I don't believe you can. I just --let me
make my point of my objection.
MR. DEAN: Excuse me. No, sir.
MR. WHITE: I don't get to tell you why I object? I object -- I
didn't say anything before, Madam Chair, because she was talking
about the procedure of that statutory process. When she wants -- when
Ms. Arnold wants to speak about the substance of it, I have to tell you
that I have to object because it's a matter that's presently under
litigation, okay? We had to file an appeal, if you will, of that appeal
based upon the way that the Board of County Commissioners
considered that.
So I don't want to inject into this proceeding whatever the
substance of that discussion was. And I'm not trying to hide the facts,
I'm simply saying it's a matter that's under litigation, and I don't know
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November 29,2007
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what relevance it has to you.
CHAIRWOMAN BARNETT: Hold on.
Jean, I'm going to ask for guidance.
MS. RAWSON: He's made his objection for the record.
CHAIRWOMAN BARNETT: We can still hear what Michelle
has to say, correct, with that objection in mind?
MS. RAWSON: Yes, you can.
CHAIRWOMAN BARNETT: Okay, go ahead, Michelle.
MR. WHITE: I'm assuming that my objection's denied.
CHAIRWOMAN BARNETT: Your objection is noted.
MS. RAWSON: I'm not ruling one way or another on his
objection, obviously that's not my role. I'm just telling you, if you note
his objection for the record then you can make a decision to go ahead
and hear what Ms. Arnold has to say.
CHAIRWOMAN BARNETT: Well, go ahead--
MR. WHITE: But the point is you're going to have heard what it
is she has to say that I believe may prejudice --
CHAIRWOMAN BARNETT: But we also know that you've
appealed it, so we do know that there's got to be legal reasons for that
appeal.
MR. WHITE: Understood. Thank you, Madam Chair.
MS. ARNOLD: As I was saying, much of the arguments that
were made during that special magistrate process were similar to what
was mentioned to you today. The special magistrate upheld your
decision that there was a violation, there is a violation, and --
MR. WHITE: Madam Chair, I have to again object. Ms. Arnold I
understand is probably explaining to you what she believes the effect
of that magistrate's report was --
MS. ARNOLD: I'm just eXplaining in my opinion--
MR. WIDTE: It had nothing to do --
MS. ARNOLD: -- just like you did note the county's opinion.
MR. WHITE: It had nothing to do with the Code Enforcement Board
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November 29,2007
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order that you entered. It simply was a discussion about those
elements of the statute. And they don't authorize the special master to
make a determine about what you all did. That is still something that
we at the end of that process -- and Ms. Rawson had indicated to you
that we had not yet appealed.
We don't get a right to appeal your April order of '06 until after
the conclusion of the litigation involving the special magistrate. So we
don't know what that court may someday do when we file our appeal.
But we haven't yet.
What I'm trying to do today is to avoid having to go through all
of that process.
So I appreciate what Ms. Arnold is saying, but the magistrate was
not able to comment about your order in the manner -- in the way that
she's characterizing it. Sorry.
CHAIRWOMAN BARNETT: Go ahead, Michelle.
MS. ARNOLD: So the special magistrate order has nothing to do
with your order, but yet he can appeal your order after the termination
of what the special magistrate did. Okay.
I just wanted to note that although the special magistrate in Mr.
White's opinion did not uphold your order, those were all things that
were presented through that process. The argument that he made was
presented through that process.
It's the county's position that although something did exist in the
Fifties, what exists today and what was brought to you in August of --
or April of 2006 is not what existed back in the Fifties. It is
progressively increased. And we have a residential use in an industrial
zoned property.
I was a major part of the development of the site improvement
plan process when it was developed back in the county in the -- I can't
even remember how long ago that was. And it was not contemplated
at that time or any time to apply to uses that are not authorized by the
zoning district.
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November 29, 2007
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That's what we have here in this case. We have a residential use
in the industrial zoning district.
The site improvement plan process can be used anywhere
throughout the Immokalee area is absolutely correct. But the zoning
always is looked at to determine whether or not that use is authorized
in that zoning district before we apply it.
There was a Notice of Violation served to the prior property
owners. It was served in error. That is the reason why it was not
pursued or prosecuted before this board.
Again, I want to caution you all to look at what he's asking you
all to do with the amendment of your order. Essentially he's asking
you to allow something that staff has, and the zoning department has
determined that is not authorized. The site improvement plan is
allowed but not in an industrial zoning land for residential purposes.
MR. WHITE: May I respond?
CHAIRWOMAN BARNETT: Basically, Michelle, what you're
saying is even if he were to apply for a site improvement plan, it
probably would not be granted because of the zoning?
MS. ARNOLD: Absolutely.
MR. WHITE: May I respond?
CHAIRWOMAN BARNETT: Yes.
MR. WHITE: There are a number of points that I think need to
be made clear for the record, and I hope you'll indulge me.
First among them is that as to the prior NOV, if the reason why the
county didn't pursue it is because it was in error, as to the idea of the
SIP, why didn't they process it as to the legality of the use?
But let's step past that. Let's look at the NOV in this case. The
NOV in this case does not cite my client in anyone of those three
cases for some kind of an expansion of a nonconforming use. It's not
in there. It's not cited.
So if the county's position today is that somehow we've done that
impermissibly, that isn't part of this case.
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And that's not just some fine legal point oflaw, it is the
fundamental thrust of what we're saying to you is unfair about this
process.
And as to the magistrate's proceeding, the facts that were then
being discussed are different than the facts that further research by
using the Wayback Machine have uncovered. And in fact we were
unaware of some of the things at that time.
Our challenge -- my challenge has been that every time we come
up with something that we think is a way to be treated fairly and
reasonably, the county throws down another barrier. And I understand,
their job is to gain compliance ofthe law.
We're saying to you that we believe we qualify under that
provision. You've got the words in front of you. In the LDC it talked
about the Irnrnoka1ee nonconforming mobile home overlay district.
That district is the entirety of the urban area. It doesn't say anything at
all in there that you have to be in a zoning district where the use is
permitted. If that were the case, logically you wouldn't need the
provision. You'd be lawful. You wouldn't be nonconforming.
But let me tell you about a case that's presently being considered
by the county for SIP. It's a case that in fact --
MS. ARNOLD: I object. Has nothing to do -- we're talking about
the Blocker case. And the relevance or the facts of this other case, and
I don't even know what it is, is no relevance on this one. We're dealing
with this matter right now.
And I just want to correct the record with regard to bringing up
something new. Mr. White is the one that brought up the Wayback
theory, and I just wanted to clarify that that wasn't -- we brought this
case to the board for illegal land use, and that's what we brought to
you all. And I wasn't introducing any further violations by insinuating
that this was something that had grown through the years, I guess, as
implied by Mr. White.
The fact remains, we brought the case for what -- for those
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November 29,2007
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violations noted.
He did bring up there are older provisions that have been since
repealed. Those were merely showing a historical n the historical
nature that he's arguing that that particular residential use had never
been authorized, with the exception of a single caretaker's quarters.
And what we were dealing with is multiple units in an industrial area.
MR. WHITE: My point is that the prior regulations that we did
discover I think stood for the proposition. At the time we didn't know
what the district was. Everybody assumed it was industrial.
What we subsequent to the magistrate process discovered by this
intensive research that I would submit may be something that the
county should have done beforehand, but in any event we've now
done at great expense and time, demonstrates that under the
preexisting rules before 1970, this is a permissible use in the industrial
district. We don't believe it was industrial. We think just like the
junkyard next door, it was then commercial C-3. And under those
rules, it was a permissible use.
So the point is either we -- and we think we preexisted even those
earliest rules that we can find.
So the notion is that at some point we were either preexisting,
and when the rules changed and the industrial district was created in
'72, I believe, we became nonconforming.
If we're nonconforming, we're not illegal. And we qualify under
those rules.
And I will tell you for the record and correct Ms. Arnold, that there
has been no determination made by zoning about this issue. In fact,
one of the reasons I said to this board last month I needed time till this
month was to get that public requests record answered.
I went down, my paralegal did, and attempted to find the very
map that we had found before. It doesn't exist in the county's files
today. Maybe they couldn't find it, I don't know. But the reason I
asked for it is because as part of our analysis to try to determine what
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November 29,2007
was the effective date of that map, because it had a 1952 date on it but
it didn't say something like adopted in 1952. The plat that predated
that says yes, accepted as to the road right-of-way. These zoning --
this map doesn't have anything like it on it.
So we went through and for every platted subdivision that was on
there, every feature that was identified, a school, the farmer's market,
we went back to the best of our ability to determine when those things
came into existence.
So my map, the only copy I had, has scribbles all over it of our
notes.
So in order to come to you with a clean document, we went to the
county and asked for those records. They no longer exist. No one can
find any ordinances earlier than the ones in the early Seventies that
actually adopted the zoning regulations that apply to these lands.
But to the best of our ability to determine, we're nonconforming.
And you have the authority to allow us to go forward. But you have to
amend your order.
I CHAIRWOMAN BARNETT: Mr. Kelly, do you have a
question?
MR. KELLY: Thank you, Mr. White. I'm glad that you brought
up the original notice of violation and subsequently our order, because
if I remember correctly the biggest issue that I had in my mind was a
safety issue, health and safety issue. And although I'm not completely
adverse to granting an extension of time in order for you to pursue the
process, I would really like to know that there has been considerable
effort to make sure that the residents, especially children, were at least
safe in that community until somebody determines whether that is
industrial or commercial or allowed or not, improved, otherwise, that
contradicts our order.
MR. L'ESPERANCE: Madam Chair, also if I could piggyback
your comments. This seems to be turning into a rehearing. Did we
intend that to happen this morning?
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November 29,2007
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CHAIRWOMAN BARNETT: No, we did not.
And I would like to try to ask everybody to keep that in mind,
that we do not want to rehear the case. We're trying to listen to your
request and give both parties the ability to express their side.
Do I have anybody else --
MS. ARNOLD: Can I just make a suggestion? Because this does
seem like it may not be ending any time soon. We do have a few
stipulations. Maybe we can go through those stipulations quickly and
then come back to this?
MR. WHITE: I have no objection to that, Madam Chair.
And in fact, as to the idea that we may need to stipulate to something
else, we would stipulate to the fact that we violate today's zoning
district. That's not a problem. We understand we're a residential use.
And the other thing is, we would stipulate to a violation of the
nonconforming provision, if that's required to amend your order,
which I believe it is.
CHAIRWOMAN BARNETT: At this time frame I think--
MR. WHITE: I have photos for Mr. Kelly or others who may
choose to see them.
CHAIRWOMAN BARNETT: I'm going to table this until we get
through the stipulations, because I think it's unfair to the people in the
audience that are waiting. Because I think this is going to be lengthy.
MR. WHITE: I'm more than willing to do so, Madam Chair. And
I appreciate it. And ifthere had been an original desire on the part of
the county for us to hear this, along with our order imposing fines, we
would have probably been agreeable, try to wrap it up all at once.
MS. ARNOLD: I don't think that request was ever made to me,
so -- if that request was made to me, I would have forwarded that to
you all.
MR. KELLY: I make a motion we table this.
MR. LEFEBVRE: Second.
CHAIRWOMAN BARNETT: All those in favor?
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MR. KRAENBRING: Aye.
MR. KELLY: Aye.
CHAIRMAN BARNETT: Aye.
MR. MORGAN: Aye.
MR. PONTE: Aye.
CHAIRWOMAN BARNETT: Opposed?
MR. DEAN: I oppose.
CHAIRWOMAN BARNETT: Okay.
MS. ARNOLD: Okay, we do have one other stipulation that
came in after we approved the agenda. That was item 4-C- 3. And so
the first one would be, that you're going to consider, is Craft, James
Craft. Board of County Commissioners versus James Craft.
CHAIRWOMAN BARNETT: Where do you want the 106, the
three to go in, atthe end?
MS. ARNOLD: That would go in at the end.
(Speakers were duly sworn.)
MS. O'FARRELL: For the record, Susan O'Farrell, Collier
County Code Investigator, Environmental Specialist.
This would be CEB Case No. 2007-107, and Department Case
No. 2006060535.
Mr. Craft owns a property out on the East Trail heading down
into the Everglades, and what I observed on it was mounds of
vegetative construction litter and a large amount of debris.
Weare here today to present a stipulation. Mr. Craft has agreed
to the violations that existed under Ordinance 05-44, the weed, litter
and exotics control ordinance, sections six through eight, and are
described as property with mounds of vegetative, miscellaneous and
construction litter. Therefore, we have agreed that Mr. Craft will pay
the operational costs in the amount of $600.81 within 30 days of this
hearing, incurred in the prosecution of this case.
He will abate all violations by: Removing all litter on the
property as defined by the Collier County Ordinance 05-44, Section 6
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November 29, 2007
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MS. RAWSON: I need some clarification. Ifwe are modifying
the order that you entered back in October, which gave them one year
till October 26th, 2007, and now you are giving them an additional six
months, that's additional six months from today's date?
CHAIRWOMAN BARNETT: From today's date.
MS. RAWSON: And you're adding one more part of your order
in the alternative the county may demolish --
CHAIRWOMAN BARNETT: Demolish the building.
MR. KELLY: So they're technically not in violation now.
MS. RAWSON: Correct. They wouldn't be-..,
MS. ARNOLD: They're in violation but the fines aren't accruing.
CHAIRWOMAN BARNETT: They're in violation but the fines
are not accruing, so there are no fines at this time.
MR. BRUGGER: Thank you.
CHAIRWOMAN BARNETT: And with that, can we adjourn for
lunch?
MS. ARNOLD: For how long?
CHAIRWOMAN BARNETT: One hour, thirty minutes? Is there
still a little Subway shop? It's after lunchtime, so everybody else is
gone.
So why don't we adjourn for 30 minutes and we'll be back here at
2:40.
CA lunch break was taken.)
CHAIRWOMAN BARNETT: We'll get started. Go ahead and
call this meeting back to order. And I guess we'll be hearing the
Blocker case next.
MR. WHITE: I appreciate the reminder. And I would like to
thank the board for allowing us to table the discussion about our
motion and to take the time to fully consider not only that but if we get
as far as the fines aspect of it.
And before I would forget, I would also like to thank you for last
month's continuance to allow us to come back today. I appreciate that.
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I think where we had left off, if my recollection serves, is that
there was a discussion about the zoning determination and whether in
fact one had been made officially or otherwise by staff.
And as a point of concern from the original hearing back in April
of last, my recollection is in review of the record was there wasn't a
professional planning opinion. And all of that said, today we're at a
place where I'm asking for your consideration of a provision in the
Land Development Code where I'm only aware of most recently there
being some concern based upon what were the then known facts in
law by the county's professional staff.
It's not part of these proceedings, it's not part of the record, but it
wasn't until, I believe, September of this year that I was apprised of
what, if any, concerns the county may have had about the SIP process.
The reason why we weren't more emphatic about it, I believe,
before when we spoke to you at our rehearing is because we were not
then presently able to effectively apply for and utilize the SIP process.
One of the reasons we asked for our continuance had to do with what I
had mentioned earlier, was the receipt of quitclaim deeds just this past
Tuesday on the board's agenda, Board of County Commissioners'
agenda.
Those quitclaim deeds will become effective after tomorrow
when we sign the Florida Department of Protection's consent order.
Because it's condition of the approval of the quitclaim deeds that we
sign the consent order.
That makes sense from the county's perspective because one of
the issues that had been holding up the whole discussion about the
clean-up was who owned the right-of-way, and more so, who had the
responsibility to clean up those tires and junk cars.
MS. ARNOLD: Can I object? Because that has nothing to do
with the Blocker case. Tires on a right-of-way has nothing to do with
the case of the illegal land use that was brought before you all. I just
wanted to state that.
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CHAIRWOMAN BARNETT: Michelle, I understand your
contention, but I think part of the board's opinion at the time and I
think what he's trying to refer to is we were concerned about the safety
because of the tires and the junk cars that were so close to the
residents' homes at that time. And we pointed that out. So I think that's
what he's reflecting.
MR. WHITE: That's absolutely correct, Madam Chair. And
further to that, I note, and the deed's not here -- and I have
photographs that were taken about six weeks ago of that clean-up as
well as one other piece of information I'd like to put into evidence, if I
may.
CHAIRWOMAN BARNETT: Okay, that would be packet --
MR. WHITE: I guess this would be our B.
CHAIRWOMAN BARNETT: Does county have an objection?
MS. ARNOLD: I have not seen anything.
CHAIRWOMAN BARNETT: Would you like to look at them
first?
MS. ARNOLD: That would be nice.
MR. LEFEBVRE: What relevancy do these pictures have to --
CHAIRWOMAN BARNETT: I'm sorry. He asked what was the
relevancy of the pictures. And I said I think it's because he's trying to
show that they've cleaned up some ofthe area that's close to the
mobile homes. And that waS one of their safety issues that we had in
concern at the original hearing.
MR. WHITE: I'm presenting them presently for the purpose of
demonstrating how we now are able to meaningfully participate in the
site improvement plan process. And without --
CHAIRWOMAN BARNETT: We need to have a motion made
whether or not to accept the packet.
MR. DEAN: Motion to accept the packet.
CHAIRWOMAN BARNETT: Do I hear a second?
MR. PONTE: I'll second.
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November 29, 2007
CHAIRWOMAN BARNETT: All those in favor?
MR. MORGAN: Aye.
MR. PONTE: Aye.
MR. DEAN: Aye.
MR. LEFEBVRE: Aye.
MR. LESPERANCE: Aye.
MR. KELLY: Aye.
CHAIRWOMAN BARNETT: Aye.
Any opposed?
(No response.)
MR. WHITE: Thank you.
And part of that packet -- yes, thank you. There are three
separate photographs. Feel--
MR. LEFEBVRE: They're all copies, correct?
MR. WHITE: Yes.
MS. ARNOLD: I have to object to the second part of it. Again,
because -- well, the objection is the health department's rules have
. nothing to do with the county zoning rules. And that's the other thing
that's being --
MR. KELL Y: Is that a separate packet?
MR. WHITE: That was part of what I was looking to bring in.
And if Michelle wants to make a separate objection to that, that's fine.
I'm happy to --
MS. ARNOLD: And I guess I need clarification from the
attorneys on what we're really doing, because I thought this was a
motion to modify the board's order. And it looks like we're getting
additional evidence that wasn't considered previously at the original
hearings. It's almost like a continuation of a hearing that -- I'm not
really clear what we're doing.
MR. WHITE: I can answer that. I'm sorry l Jeff --
MR. WRIGHT: I would like to get into that --let me pipe in a
syllable or two here. The -- earlier we had a discussion today on when
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November 29,2007
.,.
would it be appropriate to amend an order. And I agree with Michelle
and Ms. Rawson's comments that it would be appropriate where
there's a clear error or maybe where there's a health and safety issue,
or it's just manifestly unjust the way it is.
And I don't think that there would be any question that it would
be appropriate to amend an order here.
Mr. White, I think, is pointing out a lot of things that don't fall
into any of those categories. And I just wanted to point out that, since
the hearing, and I don't know if this is my rebuttal or not, but I want to
get this on the record, since the April, '06 hearing, there was a motion
for rehearing, as you know.
There was a mediation. That didn't go so well, apparently,
because Mr. White has appealed the results of that mediation --
MR. WHITE: I have appealed the way that the county handled
the consideration of it.
MR. WRIGHT: And then he's also petitioned the Board of
County Commissioners for relief last Tuesday and pulled it off the
agenda at the last minute and got a continuance at the last meeting.
And Michelle Arnold noted on the record at the last meeting that it
had been pulled twice from the agenda.
So I just want to keep the focus of the board on the issue at hand.
And that is, is it appropriate to modify this order.
And I haven't heard any error pointed out. I haven't heard any
health, safety issues. In fact, Mr. White just pointed out that, based on
these photos, the health, safety issues have been addressed. So there's
no burning building to take care of. And I don't see any grounds on
which a modification would be appropriate.
What I see, if I count them up, how many bites of the apple that
Mr. White is asking for, I'm going to have to start using both of my
hands, because it's been at least five bites.
And I'd also point out, I want to get this on the record too, this
order that he's asking you to modify is presently on appeal in the
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circuit court.
MR. WHITE: That's not correct.
MR. WRIGHT: I have the appeal here. And if! may read an
excerpt from it.
Nature of relief sought. In the alternative, petitioner seeks to have
its notice of appeal ofthe CEB's order considered immediately then
filed. Basically --
MR. WHITE: At which point it would then be considered. So it
is more legally correct to say it's not.
MR. WRIGHT: I'd defer to your own attorney on this particular
point. But the caption of the appeal is: Petition for Writ of Certiorari
based on the Bee's handling, or, in the alternative, notice of appeal of
the very orders he's asking you to modify. So he's already submitted
an appeal.
And I'd defer to Ms. Rawson that when you plead in the
alternative it's an either/or. They can be mutually exclusive. But you
are pleading, you're laying it out there. So he -- I'm really not sure
a what the result of this hearing n if for example you were to approve
his modification, whether or not that would mean that he would be
sticking with the appeal of the prior orders or would he change this to
the modified order that you would issue? I'm to really sure.
And maybe, Mr. White, you want to put on record right now that
your notice of appeal is withdrawn. Because otherwise, it's in the
court, it's under consideration by the court, and you represented earlier
that it's not. But I just wanted to point out that it is.
So that's some comments I wanted to get on the record, so you
weren't --
CHAIRWOMAN BARNETT: That refers back to my original
request at the beginning, and I was told by our counsel that we should
listen to what the Blockers' attorney had to say, which is what I think
we were doing, was indulging him.
As to whether or not we would even consider making a
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modification, we were just trying to listen to what he had to say.
I did caution before the break, though, that I didn't want to be
rehearing this case. And I don't want to rehear the case, because it's
not a rehearing, it's asking for a modification. So I'm kind of like
going to look for Jean, and also Mr. Kelly has a comment that he
would like to submit.
MS. RAWSON: If your original order of the Code Enforcement
Board is up on appeal, you have no jurisdiction to modify it --
CHAIRWOMAN BARNETT: We can't do anything, okay.
MS. RAWSON: -- and I don't know whether it's up on appeal or
not. So I would look to the county attorney for that. He's apparently
got a copy of it with him.
But if it looks like they've appealed your order, you have no
jurisdiction to hear the case.
CHAIRWOMAN BARNETT: We can't do anything.
MR. WHITE: May I clarify?
This is going to take a while. I told you this is a complex case
and it has a long procedural history.
CHAIRWOMAN BARNETT: One simple question for you.
MR. WHITE: Yes.
CHAIRWOMAN BARNETT: Per the COl.ll1ty's attorney, this case
has been appealed --
MR. WHITE: That is not correct.
CHAIRWOMAN BARNETT: -- is that true?
MR. WHITE: That is not correct. Unless and until the court
determines that the relief we've requested originally, which has to do
with the special magistrate's consideration by the Board of County
Commissioners, is not going to be granted, it cannot be considered
filed until that point.
And if I were to, under Chapter 70, which is the special
magistrate proceeding for this type of alternative relief, if I filed that
notice of appeal, I effectively have lost the jurisdiction of the
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November 29,2007
magistrate proceeding.
They are alternatives to each other. And what the statute says is if
you come in and you file a notice of appeal, which I have not done, I
have done it in the alternative and alerted the court, because the time
frame between when the court may choose to deny the relief I'm
seeking as part ofthe magistrate proceeding, if that's denied, then
instantaneously the clock starts to run for the time for me to file my
notice of appeal.
And I only have 30 days from the original order that you entered.
And my concern is that by the time I actually get the Court's order, my
time to have appealed would have expired. Because I think that there's
a good argument that the county may have -- and I hate having to tell
them the tactics that are their best defense in my filed case -- but if I
don't plead it in the alternative, I don't have the opportunity for
making sure that the window doesn't close on my 30 days, that
everybody says I have, before I file my notice of appeal.
It is not technically filed unless and until the court denies the
otherwise requested relief. Because that continues the magistrate
proceeding, which I expect will remand it, send it back to the Board of
County Commissioners to dispose of. Because that statutory process
says that it doesn't end until the Board of County Commissioners have
disposed of that special magistrate's order -- or report, excuse me.
CHAIRWOMAN BARNETT: You have met with the magistrate
once, though, correct?
MR. WHITE: Yeah, we did. That was -- took forever to get
going, and when we finally did --
CHAIRWOMAN BARNETT: And that case you're appealing,
correct?
MR. WHITE: I'm appealing not that but rather the way that the
Board of County Commissioners considered it. We didn't have a
chance to appear at that consideration. We didn't have any notice, so --
we never got to put our side of the story before the Board of County
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November 29,2007
"
Commissioners.
And I -- to tell you what would the result be, my belief is that I
may be able to convince my client that if we enter into the SIP
process, that we withdraw all of those things.
And in fact, the reason why I tell you that this is a complex
matter is because up until near the end of July I was working with the
county attorney's office, Administrator Schmitt, on a compliance
agreement, the significance of which is, if you go back to the
provision I showed you out of the LDC, the alternative way by which
we can have the SIP process entered into is one that's reached by
compliance agreement.
And we spent months working on that in coordination with the
efforts regarding the DEP and the consent order.
So some of the characterizations we really haven't been doing
anything to try to abate these violations, I just can't agree with. We've
been very busy.
Now, what's the reference the photos --
CHAIRWOMAN BARNETT: -- the legal round, and some
clean-up. So I won't say you haven't been doing anything.
But Jean, I need some general direction, because I've got two--
MS. RAWSON: I can tell you -- again, I haven't seen the appeal
and so I'm just going to give you some general overall rules oflaw. If
you file an appeal of this board's order, you lose jurisdiction. If you
file an appeal in the alternative, and based on the conversation I gather
that he's appealed both the special master --
CHAIRWOMAN BARNETT: Magistrate.
MS. RAWSON: -- magistrate's order as well as yours. If you
plead in the alternative, it's as if -- in other words, that's like you have
still lost jurisdiction if you're one of the alternatives.
MR. WHITE: But we won't know what that is, Madam Chair and
board members, until that judge rules.
CHAIRWOMAN BARNETT: But technically then, if you don't
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November 29,2007
know what that is --
MS. RAWSON: When you file -- when you file, you lose
jurisdiction.
CHAIRWOMAN BARNETT: -- we can't know what that is. So
therefore, we can't make a ruling.
MR. WHITE: I wouldn't agree with you. I think it's just the
opposite. Yau still have jurisdiction until the court says you don't.
MS. RAWSON: I think you'd lose jurisdiction the minute an
appeal is filed. The minute that appeal goes into the clerk's office, it
gets stamped --
MR. WHITE: I have not filed, to my recollection, such a notice.
I'm asking the court to consider it.
MR. WRIGHT: HI may, this does not have a case caption or a
stamped date, but it's captioned Notice of Appeal. I don't know what
case number it is. It's signed by Mr. White, May 24th, saying that he
appeals to the Circuit Court of the 20th Judicial Circuit regarding the
Code Enforcement Board's finding of fact, conclusions of law and
order of the board -- I'm sorry. I can give you a copy of this document,
so -- I was trying to speak --
CHAIRWOMAN BARNETT: We couldn't even catch up with
you.
MR. WRIGHT: Bottom line is I have in my hands a notice of
appeal of the very cases that he's requesting modification of, signed by
Mr. White, dated May 24th, '07. Maybe he never flIed it but this is
what was presented to our office --
MR. WHITE: No, I -- I will put on the record that that is part of
the filing of my petition for Writ of Certiorari, and they're different.
CHAIRWOMAN BARNETT: Jean, explain to me what Writ of
Certiorari means.
MS. RAWSON: Petition for Writ of Certiorari is part of your
appeal when you are asking the higher court to reach down and hear a
lower Court's decision. This is not the United States Supreme Court.
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That's when you usually hear the Certiorari term used.
But you file a petition of Certiorari because you're asking the
Circuit Court to hear a Code Enforcement Board or a magistrate's
ruling.
CHAIRWOMAN BARNETT: So it still takes it out of our hands,
then, doesn't it?
MR. WHITE: No, ma'am.
MS. RAWSON: If it's been filed with the court. In my opinion it
does. If it's been flied at the clerk's office -- and we don't have a filed
stamped copy -- but if it's a petition for Certiorari and that notice of
appeal is attached to it, I don't think you have jurisdiction to do
anything yet.
MR. WHITE: I couldn't object more. And unfortunately, the
reason why this is so critical, not only for your consideration today but
to the rest of our case, because if what you do is effectively consider
me to have appealed the case and argue that you've lost jurisdiction,
you've trumped what the court is being asked to do.
Now, you are loath to step into the shoes of the zoning official
for interpretations of law -- and I just can't tell you how devastating
the effect would be to make that ruling. Because the way that the
Chapter 70 statute works is very precise, it tells you --
CHAIRWOMAN BARNETI: Do we have a copy of that?
MR. WHITE: Chapter 70?
MR. WRIGHT: Yes, ma'am. In fact, I'd like to make this part of
the record, if! could. It's captioned Notice of Appeal submitted by
Patrick White to the Circuit Court.
MR. WHITE: I believe that that, without the rest of the filing, I'm
going to have to object to. It is in and of itself going to be prejudicial
without the rest of the document.
CHAIRWOMAN BARNETT: Hang on.
MR. WHITE: The only thing you'll have is something that is
what is Part B of my request, that only becomes legally effective if
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part A is denied.
If my Writ for Certiorari is denied by the Court under the Chapter
70 proceeding and they say there was no error, the Board of County
Commissioners did everything appropriate with regards to that special
magistrate's report, up until that point that notice of appeal is not
considered filed. Because the second it gets filed I've lost the
jurisdiction for the special magistrate proceeding.
So what you would be doing is effectively telling the Court, and I
know you can't do this, that they can't hear what I've asked them to
hear.
And that's why it's of such concern and why I think that -- my
understanding of how that statute is intended to operate. And there's
been a district court of appeal in the Second District that's come out
since that says as long as that magistrate proceeding is going forward
under Chapter 70, that the time is tolled for filing your appeal.
My 30 days, I suspect, could be up by the time I know what the
outcome of the Court's decision is. So in an abundance of caution, to
not have the county come back to me and tell me, sorry, Mr. White,
the window's closed, I filed that as an alternative. I did not separately
file it. It has not activated the Court's time frame to consider your prior
order.
MS. ARNOLD: Jean, is what you're saying or Jeff what you're
saying by filing in the alternative it gives -- it files both motions --
MS. RAWSON: Correct.
MS. ARNOLD: -- and therefore once a decision's made on the
first one, it doesn't --
CHAIRWOMAN BARNETT: It mayor may not n
MS. ARNOLD: It doesn't extinguish that 30-day period that he's
concerned about that would toll his appeal.
MS. RAWSON: No, it doesn't.
MS. ARNOLD: So they can consider it right after. But
essentially he's filed both motions, is that what you're saying?
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MS. RAWSON: I think that's what he said. All I have in my hand
is a notice of appeal dated the 29th day of May, 2007.
MR. WHITE: And the problem with that is it seems to suggest to
you that what I've done is cut off my own nose to spite my face, which
of course I have not done. I have not filed a notice of appeal. I am not
telling the court that I'm appealing.
CHAIRWOMAN BARNETT: Let me see in understand what
Jean's trying to tell us. By you filing as you have in --
MS. RAWSON: The alternative.
CHAIRWOMAN BARNETT: Alternative means that if A
doesn't go through, your B is then considered.
MR. WHITE: Then B.
CHAIRWOMAN BARNETT: But because you have done that,
you've tied our hands, in my opinion, in what I'm understanding Jean
to explain. Because if A doesn't go through and then B is considered,
B is our case, and so there -- let me finish.
So therefore unless A is accepted, we are at risk of making a
decision on something that may come up in front of the courts and we
have modified something that they are then going to be considering,
and that's going to be null and void anyway. Am I correct, Jean?
MS. RAWSON: I hate to answer your questions in a vacuum,
because I don't really have any of the filings in front of me.
But if you plead in the alternative, they can discount A, go to B,
they can, you know, keep B and throw out A. The alternative means
either one, either/or.
MR. WHITE: No, ma'am. This one is specifically tied to a series
of events that are A and B. You correctly said it, Madam Chairman.
You said if A is denied, only then do they move to B.
They are not a petition for two kinds of relief. If that were true, I
would have filed a separate notice of appeal. I have not done that. And
that is why I strenuously object to any characterization that I did.
You're effectively telling me I would have committed legal
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malpractice.
MS. RAWSON: Let me say this. I'm really very uncomfortable
with your moving forward and modifying an order when something
has been filed with the Circuit Court like a Writ of Certiorari and
we've not seen it. Unless I see it and can really properly advise you --
and apparently Mr. Wright doesn't have it either -- it's hard for me to
say, oh, well, don't worry about it and let's just go forward.
I have to see it in order to really give you a very good legal opinion.
MR. WHITE: Let me give you a practical outcome. If I had come
to you after the court had ruled, okay, I think that what you're saying
would be absolutely correct. If the court ruled and denied my petition
and started my notice of appeal, you are all absolutely correct,
meaning Jeff and those who see it from that end ofthe telescope, that I
would have lost jurisdiction.
This is a jurisdictional question and that is why it is so significant
and so important. I don't want you to have lost jurisdiction. Ifthat
were the case, my goodness, what have we been doing trying to
convince you of an alternative way to cure these violations?
And in an abundance of caution, all I would ask you to do is,
even if you're wrong, what's the harm? What's the harm? Is the harm
going to be that I'm going to take you to court and tell you that I don't
want the relief you may give me? Or in the alternative is it going to be
that I'm somehow not going to withdraw my appeal?
I'm telling you on the record under oath that if we have the SIP
relief, we will withdraw it. That was what was in the compliance
agreement back in July.
MS. RAWSON: Let me answer what the harm is. If you don't
have jurisdiction, any order you enter is void.
MR. WHITE: And there is no harm.
MS. RAWSON: You've wasted your time.
MR. WHITE: And the other way for me to cure it is ifI withdraw
it before the court rules on it, Madam Chair? That's null and void.
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So I effectively give you the protection, if you will, that you
think you may need, but I'm pretty certain you don't.
MR. WRIGHT: I just want to get a clarification on the record.
I'm a little confused as to how an attorney could sign a notice of
appeal, say it's submitted by me, with a bar number on it--
MR. WHITE: As an attachment.
MR. WRIGHT: As an attachment or however, it went to the clerk
of court. It's now in their hand. And it's captioned Notice of Appeal
submitted by you, and that's not in dispute. To the court, that's not in
dispute.
I'm not sure how there's any other way to interpret it. You could
have zipped it in a zip lock bag, thrown it in as an exhibit. But you
submitted a notice of appeal to the court, period. And it's there.
And I'm not sure if you're denying that. But I think that what you
said on the record is that you did indeed submit that very document,
submitted by you, signed by you, to the Circuit Court. And if that's not
the case, I just want to make sure I've got that right or wrong.
MR. WHITE: Very good arguments, Mr. Wright. But let me ask
you this: Did you check the docket in Circuit Court?
MR. WRIGHT: I did.
MR. WHITE: Does the docket show that I have a running notice
of appeal?
MR. WRIGHT: I'm not really sure. I don't have the docket
memorized.
MR. WHITE: Did you look through the petition for Writ of
Certiorari in the pleading and is it or is it not written in a way that it is
clear how the statutory proceeding under 70 intended to operate, that
you only have jurisdiction under the magistrate up to the point where
you file the notice?
If my notice were filed, I would have cut off my own nose to
spite my face in the petition for Writ of Certiorari. You can't have it
both ways.
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November 29,2007
MR. WRIGHT: That document that's captioned Notice of Appeal
was or was not filed with the clerk of the court?
MR. WHITE: It was filed secondarily to, and would not become
legally effective and operate unless the court denied the petition for
Writ ofCert. That is my answer, sir.
CHAIRWOMAN BARNETT: I'm going to stop here and I'm
going to poll the board just to ask what direction the board wants to
go.
MR. LEFEBVRE: Ifwe just have--
CHAIRWOMAN BARNETT: Temporarily I'm closing the
public hearing just to poll the board as to how they want to proceed.
Because I don't want to make this decision myself as to how we want
to go.
MR. PONTE: Personally, I think we're way out of our depth.
This is the Code Enforcement Board, and what we're hearing are legal
arguments between three lawyers about which way to go. I don't think
there's anybody on this board that's qualified to make that decision --
CHAIRWOMAN BARNETT: Thank you, George.
MR. PONTE: -- just hearing a legal argument over which we
have no authority or experience.
MR. L'ESPERANCE: Madam Chair, if I may give my little input
here also. I feel the same way. I feel that at the minimum we should
continue this until the next hearing, allowing for the attorneys to do a
little bit more research into the court's docket, perhaps, to get the
documents that you need to look at to be sure that the opinions you're
giving are the opinions that you espoused today.
I suggest that we continue this for at least one month.
MR. LEFEBVRE: It would be two months.
MR. L'ESPERANCE: Two months. January -- the next hearing,
exactly.
MR. LEFEBVRE: I guess I want to back up a little bit with the
time frame. It came in front of us, we heard the case. Didn't go in
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November 29,2007
favor of the Blockers, so he went to special magistrate. The special
magistrate upheld --
CHAIRWOMAN BARNETT: Actually, he asked for a rehearing
and we denied him. Then he went to the special magistrate.
MR. LEFEBVRE: Thank you. The special magistrate upheld our
decision.
MR. WHITE: Sorry. I know it's not public hearing but I just want
to correct the characterization. I don't think that that's fair.
CHAIRWOMAN BARNETT: I remember from discussions
prior, the special magistrate didn't rule on our issue per se according to
the attorney. But he ruled in favor of upholding the basis of it, based
on how it was presented, and they didn't have their right, which is why
he's appealing it.
MR. WHITE: Could I clarify?
CHAIRWOMAN BARNETT: No, I don't want any --l'mjust
trying to make it for our discussion. Thank you.
MR. LEFEBVRE: There was an appeal filed for a procedural
error, whatever case it may be. I feel if there was an appeal filed, it
was based on the magistrate made a decision either to support --
whatever, made the decision based on the case.
If you revert back to Steve Lovelace's case, which is a case where
he filed in Circuit Court a day before he was supposed to come back
to us, he asked for a rehearing, and it fell -- our meeting was 31 days
after our previous hearing. So the attorney went and filed in Circuit
Court.
At that point, when Mr. Lovelace and the attorney came in,
which was about a year and a half ago, came in and said I filed in
court, we couldn't hear the case.
So I feel that this would fit under that criteria, that if there was an
appeal it was based on our case, that it's out of our jurisdiction at that
point.
CHAIRWOMAN BARNETT: Your input?
Page 166
November 29,2007
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MR. DEAN: Well, you know, I can piggyback what Gerald said.
It makes a lot of sense to me. I kind of agree with that. And if I had to
make a decision right now, I'd make a motion for a modification order
to be denied.
Just because it's on my agenda doesn't mean I have to take it. I
mean, I can put it someplace else, and they can go someplace else.
MR. KELLY: In reference to the opinion as to whether or not
this case -- I think we are able to modify this case, I think because we
modified the order just prior to lunch for Francois, I think we probably
should, only because --
CHAIRWOMAN BARNETT: I'm concerned about the appeals
out there.
MR. KELLY: -- we've done that part. So that's part one.
Part two, I think both sides are strong. However, I think that it does
make procedural sense to have an order have two parts, and the second
part be reliant upon the decision of the first. And I don't think that
second part should be considered as filed until the first is ruled upon.
But I'm not an attorney.
MR. L'ESPERANCE: But that's a legal opinion we're not
qualified to make.
MR. PONTE: We have contradictory advice--
CHAIRWOMAN BARNETT: I am comfortable with the thought
of tabling this --
MR. PONTE: We have contradictory advice. Madam Chair, we
have contradictory advice on this. One lawyer has said it is not filed
because it hasn't been accepted by the court or something to that order.
And our attorney is saying it's filed as soon as the clerk receives it.
How are we supposed to make some determination about that?
CHAIRWOMAN BARNETT: I am going to lean towards your
decision that we table this until January, have it come back with the
attorneys being able to get all the information together for us,
providing Jean with the documents that she needs to review in order to
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November 29, 2007
give us a better understanding so that we can then make an educated
ruling one way or the other.
MR. L'ESPERANCE: Madam Chair, we are quasi-judicial, not
judicial.
CHAIRWOMAN BARNETT: Correct. And we need to listen to
the advice of our attorney. And I don't want to step above and over her
in that guard.
MR. LEFEBVRE: Could we make a ruling--
MS. RAWSON: Did n Ijust want to ask a question of Jeff.
Did you get a certificate of service on the Writ of Cert? Because I
know I didn't get it.
MR. WRIGHT: It says certificate of service to David Weigel.
That's how it got to me.
MS. RAWSON: Okay. I haven't seen it. I'm just uncomfortable
because we're talking about documents that I haven't seen.
CHAIRWOMAN BARNETT: I am --
MR. WHITE: And I think the reason you haven't seen it, if I
may, Madam Chair, is because the court itself does not consider it to
be a notice of appeal. And if it were, which I'm telling you again, it
can't reach until after the matter's considered by the judge, then the
notice of appeal, then the service would come.
CHAIRWOMAN BARNETT: That's why I'm leaning towards
thinking the only fair thing to do here is table this until January so that
we can get everybody to have the proper documents that they need to
look at to advise us.
MR. WRIGHT: Madam Chair, if! may, this is -- we're all
conceding here that this is before the court, it may be a contingency
that is before the court, but ultimately the issues he's asking you to
decide are going to be decided by a court.
And I think that when we come back in January we're going to be
stuck with these same legal questions, and they're more appropriate --
CHAIRWOMAN BARNETT: Hopefully she'll have seen the
Page 168
November 29,2007
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documents and can give us some advice as to whether or not we could
proceed at all. And that's what I'm looking for.
MR. WRIGHT: I'm afraid that we might be getting an eighth bite
of the apple here.
MS. ARNOLD: And I would speak for the county. I think: that's
exactly what we're doing. All of these efforts are delaying any action
whatsoever. And there was one part of your order that was complied
with, a meeting that was attended, and he was given direction at that
time how to comply. No efforts whatsoever have been made to try to
come into compliance with that direction that was given.
MR. WHITE: That is absolutely false. We were not given any
direction --
MS. ARNOLD: Can I speak, Patrick? Because you've allowed
ample time to speak and you've interrupted everybody --
MR. WHITE: I don't have any direction --
MS. ARNOLD: Can I speak --
CHAIRWOMAN BARNETT: Excuse me.
MR. WHITE: I don't have anv direction.
.-
CHAIRWOMAN BARNETT: Excuse me. I'm going to make
everybody stop speaking here in a minute.
MS. ARNOLD: Can I finish, Madam Chair?
CHAIRWOMAN BARNETT: Sure.
MS. ARNOLD: There's been arguments about your ability to
amend your order. I don't argue against that. I think: you can. The
reasons for amending that order have been given to you. And I think:
what he's -- what is being asked of you today is beyond those reasons
that have been granted in prior orders that have been amended.
There's been a request to enter into a site improvement plan
process. That is not something that is afforded to this particular
property because it's zoned inappropriately for that use.
There's been discussion about the compliance agreement process
being another avenue for him to take to get into the site improvement
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November 29, 2007
plan process, and the county was entering into that. It stopped.
Well, why? Because it's not an adequate avenue for him to
pursue. These are all these --
CHAIRWOMAN BARNETT: I don't disagree with you. I agree
with what you're saying. But I am sitting on what I think is more
important is a legal issue as to whether or not we can even move
forward because of a potential appeal that is out there.
And until Jean has a chance to review that or until we can find
out whether or not that his appeal is stated as Mr. White states or if it
states as --
MS. ARNOLD: In the interim, they continue to collect rent on
something since your order has been rendered. And that's my point.
This is just a way to continue to operate in violation of your order.
MR. WHITE: I object.
CHAIRWOMAN BARNETT: I feel like my hands are a little bit
tied, Jean. And I'm looking for you, because I really think we need to
-- to do service correctly, we need to look at the legal issue.
MS. RAWSON: Well, here, it's interesting. What Ms. Arnold is
telling you is to deny the motion because it doesn't qualify to be
modified.
My discomfort in your hearing the motion at all is the lack of
jurisdiction. But Mr. White on the other hand is telling you you've got
jurisdiction, go ahead and make a ruling. So --
MR. WHITE: Let me make the rest of my presentation --
MS. RAWSON: -- you know, it's going to be up to you. He says,
oh, yeah, you've got jurisdiction, I want you to have jurisdiction --
CHAIRWOMAN BARNETT: So we can make a ruling --
MS. RAWSON: Well, according to Mr. White --
CHAIRWOMAN BARNETT: -- according to Mr. White--
MS. RAWSON: -- it's okay, you didn't lose any jurisdiction. I
don't know that.
CHAIRWOMAN BARNETT: Ifwe don't modify anything, then
Page 170
November 29,2007
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we don't break the jurisdiction if it has gone to court, correct?
MS. RAWSON: Right. I don't know. I know that when you file
an appeal or a Writ of Cert, and I've seen the documents that you guys
don't have anymore jurisdiction.
He says you've got jurisdiction.
Michelle is saying okay, if you have jurisdiction, deny the
motion.
MR. LEFEBVRE: Jean, do we have in an alternative denial to
hear or denial to rule upon either one of these?
MS. RAWSON: You can deny the motion. You can table the
motion.
MR. LEFEBVRE: Table is what I'm thinking of.
MS. RAWSON: You can table the motion.
MR. LEFEBVRE: Which is not denying it.
MR. DEAN: Madam Chair, I'd like to make a motion. Motion for
modification of orders be denied.
CHAIRWOMAN BARNETT: Do I hear a second --
MR. LEFEBVRE: Denied or tabled?
CHAIRWOMAN BARNETT: He said denied. Do I hear a
second?
MR. KELLY: By doing that, we're accepting jurisdiction.
MR. DEAN: I agree.
MR. KELLY: Which I'm in favor of. But I'm just saying, I was
the only one who was in favor of accepting jurisdiction on that.
MS. ARNOLD: How are you accepting jurisdiction by acting on
a motion that was asked of you?
MR. KELLY: If I'm not mistaken, by hearing the motion we're
accepting jurisdiction, where Mr. Wright is saying that we technically
don't have because an appeal was filed.
MS. ARNOLD: Like the Lovelace case, you took action on that
request, you denied it.
MR. WRIGHT: Based on a lack of jurisdiction.
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CHAIRWOMAN BARNETT: Exactly.
MR. KELLY: Oh, I'm sorry. Okay, thank you. I see what you're
saymg.
CHAIRWOMAN BARNETT: I have a motion on the floor. Do I
have a second?
MR. MORGAN: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MORGAN: Aye.
MR. DEAN: Aye.
MR. LEFEBVRE: Aye.
MR. KELLY: Aye.
CHAIRWOMAN BARNETT: Aye.
Any opposed?
MR. L'ESPERANCE: Opposed.
MR. PONTE: Opposed.
CHAIRWOMAN BARNETT: I have two opposed?
MR. WHITE: May I comment. You've just cut off my ability to
present you with the evidence that I think could have led you to
conclude otherwise. And I fail to see how that's procedural due
process.
And that's what I'm actually just trying to get for my client is
procedural due process. I don't care how many bites of the apple. If the
apple is sour, my client has a right to keep coming back and asking.
CHAIRWOMAN BARNETT: I appreciate you staying here the
length of time you did and allowing the people to go in front of you.
MR. WHITE: Thank you.
CHAIRWOMAN BARNETT: I feel that in this case we have
ruled the only way we could, other than to suspend it.
MR. WHITE: Certainly that would have been preferred. And I
don't know how you disposed of the motion and I don't recall there
being a second, so procedurally I guess it's --
CHAIRWOMAN BARNETT: There was a second.
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November 29, 2007
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MR. WHITE: I'm talking about the motion to table, Madam
Chair.
CHAIRWOMAN BARNETT: There wasn't a second.
MR. WHITE: I understand.
CHAIR WOMAN BARNETT: Okay, the next case is Board of
County Commissioners versus -- oh, did he have a question?
MR. WHITE: Well, what I wanted to do was to proffer what I
would have otherwise told you as part of my motion.
CHAIRWOMAN BARNETT: I think we've made a decision and
I think that's ended it. I'm sorry.
MR. WHITE: Okay, then I hope to not bore you by telling you
about it in a different manner.
CHAIRWOMAN BARNETT: We have the request of
impositions of fines now, the Blockers.
MS. ARNOLD: Right. I guess you can -- I guess -- should I
proceed with those?
MR. KELL Y: Michelle, are these all -- they're the same.
MS. ARNOLD: It's the same thing.
MR. KELLY: Can we lump them together or do you have to do
them individually?
MS. ARNOLD: I don't think so. I don't need to do them
individually, unless Jean, you --
MS. RAWSON: I'm going to --
MS. ARNOLD: -- I'll just say it all together.
MS. RAWSON: That's fine. I'm going to write three orders.
MS. ARNOLD: These were all heard on the same day. That was
heard April 27, 2006 and that was Cases No. 2006-16, 2006-17, and
2006-18, Board of County Commissioners versus Jerry and Kimberlea
Blocker.
The violations were of unlawful and unappropriate development
of residential use in an industrial zoned property.
A violation was found on all three cases, and the orders have
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November 29, 2007
been attached for your review.
Weare at this time asking that fines be imposed at a rate of $150
per day between the period of June 30th, 2007 through November
27th, 2007, 152 days, for a total of $22,800. Also -- and that was for
item number two, which indicated that if a rezoning action -- if
rezoning -- acting in due diligence to pursue the rezoning and
obtaining the same within 365 days from the pre-application meeting.
So that was not done.
Also, item number six indicated in the alternative by obtaining a
complete and sufficient Collier County demolition permit within 90
days or within 10 days after abandonment of the pursuit of the SDP
rezoning and SDP, whichever is applicable -- and from that there's an
additional $150 per day from the period of July 10th, 2007 through
November 29th, 142 days, for $21,300.
Additionally, there's operational costs of $354.16, for a total of
$44,454.16. And that applies to each case.
The numbers are -- yeah, the amounts are exactly the same for all
three cases.
MR. L'ESPERANCE: 44,000 --
MS. ARNOLD: 44,454.16.
MS. RAWSON: They all go through November the 29th?
MS. ARNOLD: Yes.
MS. RAWSON: So order number nine was -- what was the total?
MS. ARNOLD: The total for order number nine?
MS. RAWSON: Order item nine.
MS. ARNOLD: Okay, all right. Which is equivalent to two,
which is what I said, it's the $22,800. Because in the order we state
what they have to do and then the fine amounts --
MS. RAWSON: Gotcha.
MS. ARNOLD: -- are noted in another number.
So it's a total of 44,454.16 per case.
CHAIRWOMAN BARNETT: Jean, I have a question. Because
Page 174
November 29,2007
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we state in here that if they get a rezoning upon approval of an SDP or
SIP. He's apparently trying to get permission to go after an SIP. So he
is actually trying to comply in one way of proceeding.
MS. RAWSON: Correct.
MS. ARNOLD: But your order says rezone and SDP/SIP,
whichever appropriate.
CHAIRWOMAN BARNETT: Right. My thing is he's trying to
get the SIP and get permission to get an SIP, so he's trying to comply
in one respect, correct?
MS. RAWSON: I think he is. And again, if you issue fines and
he complies, he can come back and ask you to abate them.
CHAIRWOMAN BARNETT: Right, so he has that --
MR. WHITE: Assuming that those fines and liens aren't
recorded. Because once they are, you lose jurisdiction and it goes to
the Board of County Commissioners.
CHAIRWOMAN BARNETT: Well, then they have the right to
waive fines too, I believe.
MS. RAWSON: Well, yes, that's true. Actually, he has the right
to come back and ask you to abate the fines, however, before you end
up turning it over to the county attorney for foreclosure. That's when
you lose jurisdiction.
CHAIRWOMAN BARNETT: So even if we impose the fines, if
they get through and they get the SIP or they get through this process,
they can come back and ask us to abate the fines, correct?
MS. RAWSON: We do it all the time. I know there's an Attomey
General's opinion that says you can't do that, but we do it all the time.
And it's not in the statute that you can't. The only time you have ever
lost jurisdiction is when you tell the county attorney to foreclose.
CHAIRWOMAN BARNETT: Okay, thank you.
MR. WHITE: I'm just looking for some clarification, because I
had been told by another assistant county attorney, Mr. Klatzkow, that
as soon as those orders were recorded that jurisdiction of this board
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was lost. And if I'm mistaken about that, and what's on the record
today is Ms. Rawson's opinion and this board's understanding that up
to the point in the time at which foreclosure is being ordered -- or
sought by this board that I have the opportunity to come back and
request abatement and/or mitigation offmes, then that's fine, and I
guess we could talk about that.
CHAIRWOMAN BARNETT: Jean, do you want to answer that
one?
MS. RAWSON: I'm going to ask Jeff for his opinion.
MR. WRIGHT: I agree with Jean, and the reason is, that
particular AG opinion, we like to say it's hard and fast but it's not
really settled law, and that opinion really says that it can only be
released, compromised or settled by the governing body, so nobody
else can get rid of it, but it doesn't say that it can't be amended in that
interim.
So it -- actually the special magistrate and -- the CEB special
magistrate tends to draw the line at the imposition and not amend
orders. But I have seen even her amend her lien orders. And I know,
as Jean says, that you guys have done it regularly. Obviously the clear
line in the sand is that 90-day period, once it's turned over for
foreclosure, but until then the law's not perfectly settled.
So I would defer to Jean and whatever advice you're getting from
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CHAIRWOMAN BARNETT: In the past we have released
people.
MS. RAWSON: Yes--
CHAIRWOMAN BARNETT: As long as they come up -- we've
abated --
MS. RAWSON: Even have a form they can fill out to corne in
and ask for an abatement or a reduction of fines after they're in
compliance, notwithstanding the AG's opinion.
MR. WHITE: If I could just kind of try to vision how that would
Page 176
November 29, 2007
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have to occur. We would have to be cited for a violation of
non-conforming under SIP.
MR. KELLY: If you stick around for a few minutes, the next
item on our agenda is a request to forward to the county attorney's
office. At that point you could come and speak to those issues.
MR. WHITE: Understood. I have it clarified. Up until this
moment, my understanding was otherwise, but I'm accepting what's
being said and it makes sense to me.
CHAIRWOMAN BARNETT: I will say that is how we have
always practiced. Which is why I brought it out. I wanted to get that
clarified for you.
MS. ARNOLD: I believe there was a discussion with Mr. White
at -- with this board regarding no time period for requesting reduction
abatement of fine specified in your -- so, I mean, if you lose
jurisdiction once you imposed it, how do you not then have -- how do
you abate or reduce those fines if you lose jurisdiction after you've
imposed it?
I don't know if you recall that whole discussion that there was no
time period specified in our rules.
MR. WHITE: I'm not sure if Ms. Arnold is saying something
different than what our general understanding is. I hope not.
MS. ARNOLD: No.
MR. WHITE: We're all in agreement then. That's fine.
CHAIRWOMAN BARNETT: So we need to make a ruling as to
whether or not to impose these fines.
MR. WHITE: Madam Chair, I believe that I hopefully have an
opportunity to --
CHAIRWOMAN BARNETT: I'm going to let you speak now.
MR. WHITE: Thank you. My first objection is a procedural one,
and it goes to the rules and regulations of this board. And what I'm
suggesting to you is that -- and I don't know if the rules and
regulations that are out front on the table are the current rules or not?
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November 29, 2007
MR. KELLY: They're the current rules aside from two small
changes, and I believe those are highlighted or underlined. They're
underlined.
MR. WHITE: In the document that's out there?
CHAIRWOMAN BARNETT: Yes, that's what I understand.
MR. WHITE: Then I would direct your attention to what I have a
copy of that's Page 8, under Article 10, Roman numerallO, entitled
Enforcement.
Is everybody with me?
MR. L'ESPERANCE: On Page 10?
MR. WHITE: No, no, sir, Page 8, Roman numeral 10.
MR. DEAN: What section?
MR. WHITE: I'm going to for the moment step over section one
and direct your attention to section two.
It says the investigator shall file an affidavit of compliance or
noncompliance with the secretary to the board.
There are two affidavits of noncompliance in each of the three
cases that we're here discussing today. Can someone tell me when
those were filed? Because I note that they're dated respectively -- that
they were sworn on anyways, June 29th and July 11 tho So I just have a
question as to when they were filed with the secretary.
Is -- Ms. Marku, are you under oath?
(The speaker was duly sworn.)
MS. MARKU: I would like to state that the affidavits of
noncompliance that were provided to me were provided the same date
that they were already signed by the investigator and notarized by the
investigator.
The investigator, Dennis Mazzone, in this case, in the three cases,
the date that he dated the affidavit and the date that he notarized the
affidavit, he provided me with the original copies.
MR. WHITE: So it's your testimony that they were considered
filed on those dates?
Page 178
November 29, 2007
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MS. MARKU: Yes, sir.
MR. WHITE: Would it be your duty, Ms. Marku, to send a copy
of those affidavits by regular mail as section two states?
MS. MARKU: Section two in the rules?
MR. WHITE: Yes, ma'am, section two, the second sentence
reads: Copy of said affidavit shall be sent to the violator by regular
U.S. Mail and recorded in the public records of Collier County,
Florida.
And then thirdly, the secretary to the board shall report the status
of the said affidavit at the next scheduled board meeting.
Was there a --
MR. L'ESPERANCE: I'm not reading those provisions in my
copy.
MR. PONTE: I didn't see that. Where are we?
CHAIRWOMAN BARNETT: I think you have a different copy
than we do.
MR. WHITE: I have what was out front.
I apologize, board members.
(Discussion was held off the record.)
MR. WHITE: Then can we go back on the record?
MS. ARNOLD: What he's reading from is the one that has
actually been approved by the board. The one that you have in your
packet, it hasn't been approved by the board, and so that's why --
CHAIRWOMAN BARNETT: There were some changes on this
one, that's why we were all looking, going we can't find it, so --
MR. WHITE: Well, the one that I'm reading from --
CHAIRWOMAN BARNETT: That's the one that is actually the
approved one. So we just went out and got some copies for everybody,
so -- are there any more out there?
Let's go back to Page 8.
MR. LEFEBVRE: Page 8, you said, section ten?
CHAIRWOMAN BARNETT: Two.
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MS. ARNOLD: Article ten.
CHAIRWOMAN BARNETT: It's article ten, section two. Now
we're all on the same page.
MR. WHITE: Thank you.
MR. WRIGHT: I would object to this line of questioning about
the issuance of the affidavit and the ordering of the affidavit. The
relevant information that you should be looking at is in section three. I
would just say section three, actually.
MR. WHITE: That's a request for a reduction or abatement of
fines.
MR. LEFEBVRE: These are rules we haven't voted on, correct?
CHAIRWOMAN BARNETT: Correct.
MR. LEFEBVRE: So then why are we looking at this?
MR. WHITE: The copy that I have --
CHAIRWOMAN BARNETT: The one that's out front is the
current copy that we have voted on. The one that's in our packet is the
one that we have not voted on.
MR. WHITE: I may get confused if this keeps up. I'm sorry for
that. Because I'm just trying to follow the rules. That's my job is to
help us all.
CHAIRWOMAN BARNETT: That was our misunderstanding
because we're all looking at the ones we haven't even voted on yet
tonight.
MR. WHITE: Then we're agreed as to what article ten, section
two says under the heading Enforcement.
CHAIRWOMAN BARNETT: Should be sent to the violator
regular U.S. Mail and recorded public records -- sorry.
It says that a copy of said affidavit shall be sent to the violator by
regular U.S. Mail and recorded in the public records of Collier
County, Florida. The secretary to the board shall report the status of
the said affidavit at the next scheduled board meeting.
MR. WHITE: Thank you for putting it into the record.
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Page 180
November 29,2007
And so I just return to my question, if I may. Ms. Marku, was
there a point in time at which you sent a copy of the affidavits of July
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MR. WRIGHT: Objection. This is irrelevant to the question of
whether or not to reduce the amount of the lien.
MR. WHITE: The question is whether they should be imposed or
not. There is no lien.
MS. MARKU: There is no amount of time where it states in the
rules that I have to provide you with -- that I have to provide the
respondent with a copy of the affidavit.
Also, this case has been going on in a continuance, have been put
on the agenda, I removed off the agenda, so -- and these affidavits has
been part of the exhibits.
MR. WHITE: They're part of the exhibits of to day's --
MS. MARKU: Today, and last hearing when it was continuance.
MS. ARNOLD: Patrick, the process has been --
MR. WHITE: Michelle, I think I can understand how to read the
rules, and I'm just trying to ask some questions about whether your
staff has followed the process, whether the county --
MS. ARNOLD: And I'm trying to answer--
MR. WHITE: n can at this point lawfully impose fines.
MS. ARNOLD: I'm trying to answer your question, Patrick.
MR. WHITE: I did not ask a question of you, Michelle, I asked a
question of Ms. Marku.
MS. ARNOLD: And she replied to your question. Can I explain
the --
MR. WHITE: And I would like to ask her some more questions
about that answer, if! may, please.
May I inquire, Madam Chair?
CHAIRWOMAN BARNETT: Go.
MR. WHITE: Thank you.
So Ms. Marku, let me see if I understand. Is it your testimony
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November 29, 2007
that you never sent a copy of the affidavit to the Blockers by regular
mail?
MS. MARKU: No, I have not.
MR. WHITE: Did you at any point in time record in the public
record of the county those affidavits?
MS. MARKU: No, I have not.
MR. WHITE: And was there a point in time at which you as the
secretary to the board reported the status of those affidavits from July
and June, at whatever would have been the next then scheduled board
meeting?
MS. MARKU: I have placed these copies of the affidavit on the
exhibits that the board members have received from last month's
agenda that they were -- you had a motion for continuance. It was in
their packets, as well in these packets again.
And it does not state on the rules that it has to be a specific
amount of time where I would have to send these affidavits to the
respondents.
MR. WHITE: Well, that was my fIrst question, which I thought
you previously answered that you had not.
The third question had to with whether you reported the status of
them at the next board meeting. That would be the board meeting
following June 29th and July 11 th, which would have been the
meeting at the end of July, as far as I know.
And so my question is, did you report those affidavits at the end
of July, 2007?
MS. MARKU: And then my answer again is that they were on
the packets ofthe board members.
MR. WHITE: For which month?
MS. MARKU: It was for the last month.
MR. WHITE: For October?
MS. MARKU: Yes.
MR. WHITE: And for November.
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November 29,2007
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MS. MARKU: Yes.
MR. WHITE: So it's fair to say they were not part of the packets
for July then?
MS. MARKU: I have to go back and see if you were -- if you
were on the agenda in July, then yes, they were.
MR. WHITE: It's okay to say you don't know. I'm not trying to
make this torturous, believe me. I just need to get on the record that
there is a noncompliance with this board's own rules about providing
affidavits of noncompliance.
MS. ARNOLD: And I would have to object, because Patrick
White knows that he has requested continuances prior to corning to
this board so we were unable as staff to place this on the agenda for
your consideration the following month based on his continuances.
MR. WHITE: There are two separate issues of whether the
affidavits of noncompliance are reported --
MS. ARNOLD: And because he's not allowing me to tell him
what the procedures are, I can't explain to him why those affidavits
weren't put on there.
CHAIRWOMAN BARNETT: Michelle, I'm going to ask you to
go ahead and explain the procedures to me.
MS. ARNOLD: Well, the normal procedures are once -- and they
are normally placed on the agenda the next month after being filed
with the secretary and then recorded after the board's action has been
taken. But because this particular -- and we do imposition of fines
timely, because the affidavits are requested at the time your specific
actions are so noted in your order.
And in this particular case, you've got several different actions to
be taken. So the affidavits were filed, provided to the secretary to the
board. She attempted to place them on your agenda so that you would
have an update. Several requests were made for continuances, so I've
asked her not to place them on the agenda prior to your being asked
that yourself.
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November 29, 2007
So that was the reason at our last hearing that we asked that that
be the final request for continuance that was being granted for this
particular case, or these cases, because there's been numerous requests
that have been granted for this case, and that's the only reason why
you weren't able to consider them prior to today.
CHAIRWOMAN BARNETT: Okay. Jean?
MS. RAWSON : Yes.
CHAIRWOMAN BARNETT: Because apparently there has been
a difference on how we've handled this case because of the
continuances --
MS. RAWSON: Correct.
CHAIRWOMAN BARNETT: -- we have apparently not given
the defendant -- his affidavit has not been mailed to him.
MS . RAWSON: It usually goes out with the packet that you get
that they get.
CHAIRWOMAN BARNETT: So he would have received it last
month then.
MS. RAWSON: He should have.
MR. WHITE: No, he did not.
.. MS. RAWSON: It's in your packet. They get the same packet
you do.
MS. ARNOLD: What I had indicated is that they would get it
after your consideration. But you've never considered it. So apparently
it was never mailed to them.
CHAIRWOMAN BARNETT: Okay, so they haven't actually
received an affidavit then?
MS. MARKU: They have received an affidavit. Yesterday I -- if
I recall correctly, I had a public request from Mr. White's office to
have the packet of evidence, these exhibits, and she has received
those.
MR. WHITE: And the reason we asked is because we hadn't
received them, they hadn't been provided by mail.
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November 29, 2007
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Now, we're talking about the third of those three things, and the
first of them. But the one that I think is most problematic for this
procedure is the fact that they were never recorded. And certainly I
would suggest that if your rules require something be done and it's not
done, that it's premature and inappropriate for you to consider
imposing fines today.
CHAIRWOMAN BARNETT: Jean?
MS. RAWSON: You know, I'm going to let Mr. Wright speak
here. I'm not sure that one has a whole lot to do with the other,
honestly.
You know, the liens and fmes are going to continue to accrue
from the June date and from the July date, you know. If you impose
them today or if you impose them next month because now we gave
them a copy of the affidavit, I mean, they're just going to keep going.
MR. WHITE: Like I said, we skipped over section one.
CHAIRWOMAN BARNETT: I understand. Mr. Wright?
MR. WRIGHT: I just want to point out that compliance is no
longer at issue. Everybody knows, including Mr. White, that it's not in
compliance. So the fact --
MR. WHITE: I object to Mr. Wright putting words in my mouth.
I wish you would stop.
MR. WRIGHT: I apologize, maybe it is in compliance, in which
case we should be made aware of that. But we haven't been made
aware of that. So far, based on what I've heard and what I've seen, the
property is not in compliance, and I think that's consistent with your
order as well.
Now, whether or not there was a mailing of an affidavit, I trust
that Bendisa put together the appropriate packages and sent it to them.
Regardless of that, compliance is not at issue in this instant matter
which you're considering, which is whether or not to impose a lien.
There's already been a finding of noncompliance. There hasn't been a
finding of compliance.
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So to get run off the path on this red herring is just going to take
up more of your time. And I would just suggest that you focus
specially whether or not to impose a lien and give him the courtesy of,
as he's requested, considering factors for mitigation ofthe fine.
MR. WHITE: Certainly the first of those would be whether the
county itself complied with its own rules. And I find it somewhat
astounding that a member of the Bar would suggest to you that you
don't have to follow your rules, that you should just rush to judgment
-- if I may be like you and put some words in your mouth nand
impose fines without having any discussion about whether or not there
has been compliance, or efforts towards compliance, or what the
gravity of the violations may be.
There are a set of factors that are supposed to be evaluated. And
I'm prepared to put on evidence about those things for you in an effort
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CHAIRWOMAN BARNETT: I would like you to move forward
on that then and give us some of that information because I'm getting
tired of listening to everything but the information that should be
pertinent to whether or not we have a fine imposed.
MR. WHITE: I appreciate your frustration, Madam Chair,
believe me, I really do.
I would object that we are not procedurally in a proper position to
be able to consider the imposition of fines unless and until at the
minimum those affidavits are recorded in the public records.
Your rules require it, it's not been done. I don't know how you
can get to the point of going ahead with the process when it hasn't
been complied with under your own rules.
MS. ARNOLD: Can I say something? That these rules are
guidelines for you, and you all as the board being your rules have the
discretion whether or not to accept or require all those actions to be
taken. As Bendisa pointed out, there's no timeline specified of the
recording ofthe liens -- of the affidavits. So I mean, I'm not sure
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November 29, 2007
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where Mr. White is coming from that they have to first be recorded in
the public records before you all consider imposing those fines.
And if they're recorded, as J eff Wright indicated, so what?
They're still in noncompliance. The fines still continue to accrue. You
all just need to make a determination whether or not you want to
impose today or we'll bring it back again in another month for you to
impose, because I don't think we're going to get anywhere closer to
compliance.
CHAIRWOMAN BARNETT: I want to find out why he thinks
he should -- besides the affidavit issue, because I don't think it falls
into play here, to be honest, because there is no time frame where it
says in our -- it says it needs to be filed, it doesn't say when.
I would like to move forward and listen to what he has to say in
regards to why we shouldn't impose the fines at this time. Because he
says he has arguments in that regard. If I don't hear that information,
then I'm going to stop this proceeding and I'm going to ask the board
to make a decision.
MR. WHITE: Thank you, Madam Chair, I'm happy to move
forward. But I'm noting my procedural concern for the record.
CHAIRWOMAN BARNETT: I understand.
MR. WHITE: Thank you. The fIrst thing I'd ask you to do is kind
of go back to where we were before. The gravity of the violation here,
I think, has largely to do with the public health, safety, welfare
concems that this board saw with respect to the adjacent property.
And the photographs that were provided to you and are part of
the record indicate clearly that there has been significant clean-up and
that largely all of those materials that were offensive and obnoxious
and were a nuisance accumulation have been removed from the
property line and are in the process of continuing to be cleaned up.
And I believe that as to the extent of any violation in terms of this
board feeling that there was a health, safety, welfare concern, that it
has been mitigated. And I would ask that the fine amounts certainly
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should reflect that.
There are other concerns I have about the affidavit of
noncompliance. And Mr. Mazzone is here and if I may ask him a few
questions, please, about it?
CHAIRWOMAN BARNETT: Mr. Mazzone. You have to swear
him in, Cherie'.
(Speaker was duly sworn.)
CHAIRWOMAN BARNETT: Before we start, we're having to
lose another member because he has to be elsewhere. So we'll say
good-bye to George. Merry Christmas, George.
MR. PONTE: Merry Christmas.
CHAIRWOMAN BARNETT: We might still be here.
(Mr. Ponte leaves the room.)
MR. WHITE: I was hoping for New Year's, actually.
MS. RAWSON: You're going to lose your attorney very shortly,
because I'm catching a plane. So, Mr. White --
MR. WHITE: Trust me, I had somewhere else I had to be at 3 :00
as well.
MS. RAWSON: We're probably going to have to really--
because they can't do without me. So let's get this done.
CHAIRWOMAN BARNETT: Go ahead, Mr. White.
MR. WHITE: Thank you. Mr. Mazzone, you're the one that
prepared the June 29th and July 11 th affidavits, and do you have a
copy of one of those in front of you?
MR. MAZZONE: I do not.
MR. WHITE: Could someone provide him with a copy, please.
MR. MAZZONE: I have those now.
MR. WHITE: In paragraph number three of the June 29th
affidavit, you make the statement that -- in the second sentence that
the respondent has not complied with paragraph nine by not having
acted with due diligence in pursuit of a rezone of property in question
by June 29th.
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Page 188
November 29, 2007
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What actions did you take to determine that my clients had not
used due diligence?
MR. MAZZONE: I had spoken to a planner who was in charge
of that project and they had stated that there had been no progress
made, they have not heard back from you.
MR. WHITE: Did that individual also tell you, Mr. Mazzone,
that we weren't able to file for a rezoning because we did not have a
comprehensive plan amendment?
MR. MAZZONE: I don't believe they mentioned that.
MR. WHITE: But it is your understanding that one is required?
MR. MAZZONE: Correct.
MR. WHITE: So is it fair to say that no matter what degree of
diligence my clients would have used, there was no way they could
have obtained a rezoning by June 29th because they did not have a
comprehensive plan amendment?
I mean, is that a fair statement?
MR. MAZZONE: I think that's a statement. I believe that the
process of going through a rezone, in my heart of hearts, was one that
was just a delay tactic.
MR. WHITE: I understand. I've heard that from others before.
Thank you for your opinion.
CHAIRWOMAN BARNETT: Mr. White, I've got a question. I
think all of this information that you're presenting would be really
good for an abatement of fines if it were imposed at a later time. I
would --
MR. WHITE: It goes to the second factor ma'am, that says any
actions taken by the violator to correct the violation. My point is
simply this: There were no actions we could take to rezone the
property because we're legally precluded from doing so because we
did not have a comprehensive plan amendment. Nor did this board
afford us time to get one.
CHAIRWOMAN BARNETT: Which is what I'm stating is, I
,
.
Page 189
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November 29, 2007
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think it would be a better argument for an abatement.
Michelle?
MS. ARNOLD: As I noted earlier, Mr. White indicated that he
was told at that preap. meeting that he needed a compo plan
amendment in order to pursue a rezone. He could have at that time
corne back to the board and asked for additional time. He could have
at that time submitted a compo plan amendment request and started
pursuing something towards the rezone, but neither of those avenues
were taken.
MR. WHITE: May I respond, Madam Chair, in kind?
CHAIRWOMAN BARNETT: Yes.
MR. WHITE: No one from code enforcement carne to you either
when they recognized that there was a problem. Instead they rely upon
my client to corne back here. And we did.
But we felt it was in our best interest to not come back to you all
until we had done what we could under the other factor that says what
can we do to abate the violation that you were concerned about as far
as the health, safety, welfare concern.
And it has taken our best efforts until the end of this month to get
those things in place. So I ask you, was that fair?
The second point that Michelle made was that we haven't filed for a
small-scale amendment.
Well, what we have done in the alternative, as my motion
indicated and I think as some of the testimony has been stated thus far,
is that my clients are actively involved in the Immokalee master plan
restudy process, and routinely attend the master plan visioning
committee meetings.
So I fail to understand why the county's failure to come forward
and look to correct an order which they recognize is a problem
because it doesn't give time to get a compo plan amendment suddenly
becomes my client's problem.
MS. ARNOLD: And I would object. I've never said that. I
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November 29, 2007
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believe your order was -- can I just speak to the comment about __
CHAIRWOMAN BARNETT: Actually, the board's getting a
little bit leery.
MS. ARNOLD: Can I just make one comment, speak to the
abatement of the health, safety? It was Mr. White's testimony
previously, I believe, that he indicated that the site improvement plan
process would afford his clients to corne into compliance and allow
them to replace some units that are currently on there.
I would argue that the reason some of those units needs to be
replaced is because they're not completely up to code.
MR. WHITE: There's no evidence of that, ma'am.
MS. ARNOLD: Well, I'm just kind of repeating what -- there
would be no reason for replacement--
MR. WHITE: No, I was simply indicating--
MS. ARNOLD: -- if these units were 100 percent health, safety
without health, safety concerns.
MR. WHITE: There's a large difference between them being
sufficient for human occupancy, and that was the other document I
was seeking to give you from HRS.
MR. DEAN: You're out of compliance.
CHAIRWOMAN BARNETT: I'm done. Right now it is out of
compliance. It has not come into compliance. I will grant that the
respondent has done some due diligence in trying to bring it -- get it to
where he can bring it into a compliance in the manner that he wants.
I'm going to close it. I think I've heard enough. It may not be to
your liking, but we need to move forward, because we're about ready
to lose our attorney and we won't be able to finish the rest of our cases
for the day.
MR. WHITE: Madam Chair, I'm prepared to corne back at any
point in time when you have a quorum and an attorney.
MR. DEAN: Motion to close the public.
MR. LEFEBVRE: Second.
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CHAIRWOMAN BARNETT: There's been a motion from the
board member to close the public hearing, and a second.
MR. WHITE: Just note for the record --
CHAIRWOMAN BARNETT: All in favor?
MR. MORGAN: Aye.
MR. DEAN: Aye.
MR. LEFEBVRE: Aye.
MR. LESPERANCE: Aye.
MR. KELLY: Aye.
CHAIRWOMAN BARNETT: Aye.
Any opposed?
(No response.)
CHAIRWOMAN BARNETT: Okay.
MR. WHITE: I just note for the record there were at least two
other factors --
MR. DEAN: It's closed --
CHAIRWOMAN BARNETT: I understood.
MR. WHITE: Mr. Dean, I believe I have the right to put on the
record for me to appeal --
MR. DEAN: Sir, we closed the meeting for the public. You've
talked for two and a half hours, sir.
CHAIRWOMAN BARNETT: Mr. White, I understand that you
have two other points that you would have liked to have brought up,
and I will put it on the record for you. And that should close it.
MR. WHITE: It does.
CHAIRWOMAN BARNETT: I'm looking for whether or not to
impose the fines.
MR. LEFEBVRE: I make a motion to impose the fines.
CHAIRWOMAN BARNETT: Do I hear a second?
MR. MORGAN: Second.
CHAIRWOMAN BARNETT: All those in favor?
MR. MORGAN: Aye.
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November 29, 2007
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MR. DEAN: Aye.
MR. LEFEBVRE: Aye.
MR. LESPERANCE: Aye.
MR. KELLY: Aye.
CHAIRWOMAN BARNETT: Aye.
At this time we're imposing the fines. However, as I stated, you
have the right to come back and ask for abatement once you come into
compliance, however long that takes.
MR. WHITE: As long as it doesn't take more than three months.
CHAIRWOMAN BARNETT: And at that time frame, your
arguments would weight heavy. I will tell you that. Okay?
MR. WHITE: I appreciate knowing that, and I would just want to
say for the record that as far as the imposition of fines and the dollar
amounts, I believe that they are in excess of what is necessary to get
us to compliance.
We are doing things and have demonstrated to you that we have
done things --
CHAIRWOMAN BARNETT: Come back at the time you come
into compliance and use that argument, sir. I'm not saying you have to
pay it at this time, I'm saying come into compliance and come back to
us and we will look at abating some of them.
MR. WHITE: You understand that that's at least three years
away.
CHAIRWOMAN BARNETT: That may be. Thank you.
MR. WHITE: Thank you.
CHAIRWOMAN BARNETT: The next case is Board of County
Commissioners versus Alfredo and Miradis Miralles.
MS. ARNOLD: This case was actually on your agenda last
month, and Mr. Miralles came, and there was question about whether
or not it was clear that he needed to paint over the shadowing, I
believe, of the sign. And you gave him additional time before abating
-- imposing the fines.
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November 29,2007
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There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 4:30 p.m.
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COLLIER COUNTY CODE ENFORCEMENT BOARD
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SHERI BARNETT, Chairman
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These minutes approved by the Board on
as presented or as corrected
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I TRANSCRIPT PREPARED ON BEHALF OF GREGORY
COURT REPORTING SERVICE, INe. BY CHERIE'
NOTTINGHAM
Page 204
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JONES
FOSTER
JOHNSTON
&. STUBBS, P.A.
Attorneys and Counselor's
MnrgJ1l"ct L. Cooper', Esquire
Direcl Dial: 561,650-0464
Direct Fax: 561-650-0422
E-Mail: ntCOOpcl@jones-lbster com
1~1;1g:I("r CClller Tower. Suite 1100
505 Soulh Flagler Drive
Wesl Palm Beach. Florida 3JolO I
Ti:IL~flhone (5(1) 659-30()()
Maifillg AddrcH
Post Oml:e Box 3475
West Palm Beach. Fl{)ridll 33402-3475
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May 3.2011
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Vi(( E-MllillIl/{l U.S. MlliI
Jacqueline W Hubbmd. Esquilc
Colliel County Attorney
3301 East Tamiami Trail. 8th Floor
Naples. Florida 34112
I
Re: Blocker v. Collier' Coun!)', et al.
Collier Coun!)' Circuit COUl't Cases Nos. 08-66-CA and 08-9.355-CA
Om' File No. 25239-1
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Deal Ms. Hubbard:
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PlIIsuanlto the Public Records Act attached please find a copy of a public documenllequest that
I am making on behalfof Jerry Blocker. I will be coming to Collier County on ThUlsday. May 5,
and I would like to pick up a copy of these documcnts at that time
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Thank you for your attention to this mailer
I
Sincerely.
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JONES. FOSTER. JOHNSTON & STUBBS. P A
----------
I L Cooper
MLC/dap
Encloslllc
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huhhanl rc puhlil: d\ll;ulllclll rCllllCSI
ii'iPW jOllc~-fostcr Will
"'~.Io'III_~"_..
Rc: Bloclicrs' Mobile I-lomc Park, knowl1 as "Shcll Trnilcr Park"
1101 Alachua Street, Imlllokalee, Florida
Lots 61 7, 9, 9 and 10, Ncwmarl{et Subdivision
111:'6/0\ Order to (oneel ViolAtion directed [0 Collins with Jegmd to the Shell Tlailel Park
pJOpcl"ly
2
3
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All historic and current zoning maps and codes relating to Shell TUlilcl Park
All slII'vcys 01 evidence that show Shell Trlliler Park cllcloachillg Ollto the Eldjnccllt junkymd 01
ROW casement arC;l
All \\11 iucn evidcnce showillg that thc COllllt)' orCeled the Blockers the Site Improvemcnt Plan
("SIP") oPPol1unity
All c-mails. memos. or other intrn staff. communications by and between Code EnrOlccmcnt
Bonrd and staff. or Bomd of County COlllmission flS other Bomd level persons concclning the
Shell Tlailer Park property ill any respect including SIP availability. zoning change, code
cnrorcemcnt'. or GMP chC:1I1ges
p:\t1\11.:s\25231J\OOOOI\um;\lan90D doc
r..:qu.:sl puhHcdnclIlll..:n!
~per, Margaret L.
10:
Peterson, Deborah
Wednesday, May 04, 20118:38 AM
Cooper, Margaret L.
FW: Blocker v. Collier County
"rom:
nt:
Subject:
Importance:
High
-----Original Message-----
From: H ubbardJacqueline [mailto:JacquelineHubba rd@colliergov,net]
Sent: Tuesday, May 03,2011 5:00 PM
To: Peterson, Deborah; BradleyNancy
Cc: ColliMarian; FlaggDiane; Snow Kitchell
Subject: RE: Blocker v. Collier County
Importance: High
Margaret.
We are in receipt of your request. I will not be in the office this week after tomorrow morning. I will return on Monday.
We will let you know when the documents are ready for you, after my review. Thank you.
Jacqueline
Privileged and Confidential
PREPARED IN ANTICIPATION OF LITIGATION, REFLECTS THE MENTAL IMPRESSIONS, LITIGATION STRATEGIES AND LEGAL
. EORIES OF THE UNDERSIGNED ATTORNEY AND IS EXEMPT FROM PUBLIC RECORDS DISCLOSURE PURSUANT TO Ii
119,071(1)(d), FLA. STAT, THIS MESSAGE IS INTENDED FOR THE RECIPIENT ONLY. IF YOU RECEIVED THIS
I COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY, USE OR DISSEMINATION BY ANY PERSON
" OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED.
Jacqueline Hubbard, Esquire
i Litigation Section Chief
I Office of the County Attorney
3299 East Tamiami Trail, Suite 800
5 Naples. Florida 34112
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. (239) 252-8400 - Telephone
(239) 774-0225 - Fax
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ii JacquelineHubbard(ci>colliergov.net
,. -----Original Message-----
~ From: Peterson, Deborah [mailto:dpeterson@jones-foster.com]
Sent: Tuesday, May 03, 2011 4:18 PM
11 To: HubbardJacqueline; BradleyNancy
li Subject: Blocker v, Collier County
Please see attached letter. Thank you.
".,der Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a
Jlic records request, do not send electronic mail to this entity. Instead. contact this office by telephone or in writing.
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I MM.OKALE.E
COLLIER COUNTY, FLURIDA
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T. 46 8 47S. R.29E.
Scale ,-. 4C~'
195 :.
lEGEND
f~:;;! ~ R-I Single family Residential
R-2 One a Two family Res.
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-, C-I Neighborhood Commercial
~ C-2 Retail Commercial
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Commercial as Light Industrial
Industrial
Agricultural
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COUNTY ZONING REGULATIONS
COLLIER COUNTY, FLORIDA
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SECTION I. DOFINITIONS.
For the purpose of these regulations and enrorcement thereor, the
t'ollowing definitions for terms used shall apply to all districts.
Words used in the present tense include the ruture; words used in the
singular number inolude the plural and words in the plura.L number in-
clude the singular j the word "bul1dingR inoludes the word" struoturel!
and the word nshall n is mandatory and Dot direotory.
ACCESSORY USE OF BUILDING. A Subordinata usa of tho building cus-
tomarily incident to and located upon the same lot occupied by the
main building.
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ALLEY. A roadway dedicated to PUbiic use which afford only a sec-
ondary means of access to abutting property and Dot intended ror
general traffic circulation.
ACCESSORY BUILDING. A subordinate bUilding or portion of the main
building which is located on the same lot aa the mBln building or
on an adjacent lot, the use of which building is olearly incidental
to the use of the main building as for example: a garage, tool
house, servants quartarsa Such building does not inclUde cooking
:facilities.
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ADVERTISING STRUCTUR..t:a Any structure 0.[ any kind or charaater
erected or maintained for outdoor advertis ing purposes, upon which
any outdoor advertising may be placed.
APART~NT BUILDING. Sea Dwalling, Multipla.
AUTO COURT OR AUTO CAMP. So. Tourist Camp.
BARBECUE STANDS, BARBECOE PITS. Refreshment places noere space
t is provided or allowance 1s made for automobiles to congregate
~ for the purpose of serving ocoupants with refres.bments.
BUILDING. Any Structure having a roof' supported by columns or
walls.
BUILDING, HEIGHTH OF: The vertlc8.1 distance measured from the'
finished grade level to the main leval of the slopes of the main
roof. The height of a wall is the vertical distance from the fin-
ished grade to the maio level of the top of the wall, including
any dormers or gables on the wall.
BUILDING ARbA. That portion of the lot occupied by tna main build-
ing, accessory buildings end other structures.
BUNGALOW COURTS (HOUSE COURTS, GARD"N APARTMENTS). Two or Illora
bullaings used or iOtisodec1 for use as dwellings occupying a single
parcel of land, any portion of which Is used or intended for use in
common by the inhabitants of sucb dwellings.
COIJRT. A Court is a required open, unoccupied space on the Bame
lot, and fUlly enclosed on at least three adjacent sides by walls
01' the bUilding. An outer court is aoy oourt facing for its full
,_-,,-quired width on a street, or any other required open spaoe not
l court. An inner c96t is any other required court.
~LUB, NIGffi: The term nightOlub shall pertain to and inClude
~eBtaurants, dining rooms or other a~11ar establishments having
a floor show or other forms or law~ul.entertainment which ia pro-
lided for guests af'ter 11: uo 0 I Clock P. M.
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SECTXON I. Definitions (Continued).
CLUB, PRIVATE: An association of persons for Bome common purpose
but oot incl.uding groups oI'gan1.z.ed primarily to render servIce that
1s customarily carried on as a business. The term private club"
shall apply to all sooial organizations not operating for profit,
but shall not inolude casinos, nightclubs and the like.
DWELLING: A house, hotel, apartment building or other bUilding
us~d prtmari~y as a place of abode, except that the word dwell~g
s~l not include trailer camps.
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DWELLING, SIJiGLE FAIl\ILY: A detachsd building, designed for, or
occup1.ed exclusively by one fa.m11y.
DWELLING, TWO FAMILY DUPLBX, A detacDsd building designed for,
or occupied by, two i'am1J.1es living independently or each other.
DWELLING, MULTIPLE: A building or ~ortion thereof used or de-
signed as a residenoe fon tnree or more families living indepen-
dently of eaoh other.
FAMILY: Any number of inoividuals living togstner as a aingls
housekeeping unit and doing their cook~ng on the premises.
FILLIJiG STATION: Sss Sarvics sta.ion.
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FBONTAGE: All the property abutting aD one (i) siae of a street
between two (2) intersecting streets, measured aiong the street
line.
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GARAGE, PRIVATE: A building or apace used as an a~cessory to a
main building permitted in any residence district, and providing
for the storage of motor vehicles and in whioh no business occupa-
tion or service reI' profit is in any way conducted.
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GPJUGE, PUBLIC: Any building or premises, except those described
as a private or storage garage. used for the storage or care of
motor vehioles, or where auch vehicles are equipped for operation,
repaired or kept for remuneration, bir~ Dr sale.
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GARAGE, STORAGE: Any building or premises, other toan a private
or publio garage. used exclusively for the parking or storage of
motor vehicles.
GUEST IlOUS";: (TOURIS'l' HOME) Any dwelling in wnic h rooms are
rented ror the temporary care of lodging of transients and
travelers ~or compensation.
GUEST HOUSE: A ~eoondary residence which 1s not occupied all
year round but wh1o~ 1s used as a temporary residence only, and
is Dot leased or rented for profit.
HO'flt.L: A bui.lding occupied 8.S a IDOI:'e or less temporary rl:lsldence
of individuals who ar~ lodging with or without meals and in Wll1ch
there are five or more sleeping rooms' and no prOVisions made for
oooking 1n any individual room.
HOME OCCUPATION: ~occupation for gain or support conducted
solely by Immedlat1llfnembera of a family residing in a dwelling
and conducted entirely within the dW61.11ng provided that no
e.r~lcle 1s Bold or ofrered for sale except' such 8.8 may be pro-
duced on the premises by members or the .family and provided fUI'-
tber that such home occupation ahaJ.l be inoidental .to the residen-
tiaL use of the premises. Home occupations shall Inc~ude, in
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SECTION I. Derinitions (Continued).
general, personal services such as are furnished by a physioian,
dentist, muslclm, artist, beauty operator or seamstress when
perrQrmed by the person occupying 'the building as h1.s or her
private dwelling and not including the employment of any addltl-
tional persons 1n the performance of such services.
LODGING (ROOMING HOUtiE): Any house or other struct;ure, or any
place or location, kept, used, maintained, advertised or held
out to the public to be a place where living quarters, s~eeping
or housekeeping accamndations are supplied for pay to transients,
permanent guests or tenants, whBther in one or adjoining build-
ings.
LOT: A ps..rce.L of .Land which is or may be occupied by a bu.11ding
and accessory building or buildings, including the open spaces
required under this Re~o~ution.
LOT, CORNER: A lot abu~t1ng upon two (2) or more streets at
thair intersection.
LOT, INTE.rlIOR: Any ~ot Which is not a. corner lot.
LOT OF R~CDRD: A lot wnich is a pert of a subdivision, the
plat of which has been recorded in ~ne ofrioa of tne Cl~rk of
Circui~ COLU:t of CollIer County.
LOT I THROUGH: An inter lor lot hay lng frontage on two para.J.leJ.
or approximately parallol streets or thoroughfares.
MOTEL: A hotel or hotel cottages designed primarily for the
~mmodation of automobile tourlsts.
NON-CONFORMING USll: A building or land occupied by a use that
does not conform with regulations of the use distr~,ct in which
it is sitUated.
PARKING LOT: An area or plot Jf ground used for "tbe storage or
parking of motor vehicles.
SERVICE STaTION: A building or lot where gasoline, oil and
grease, batteries. tires and automobile accessories are supplied
and dispensed to the motor vehicle trade; &nd v.'here battery re-
Charging, tire repair and other similar ser':il.~es are :rendered~
3ET-BACY.: A Minl~um horizontal distance between tl~ lot line,
front rear or aide, and the front. sid~ or rear lines of the
building occupying said lot.
S'!'ABLE, PRIVA'l'E: A stable with the cepac ity of not mOI'5 the.:l
one (1) for Bach thirty-five hundred (350Q) square fae,t of lot
area whereon such stable is located and where such harass are
oVlned by tne owners or occupants or the premises and "are not
}tept for remuneration, bire or Sale.
STABLE, PUBLIC: A stable other t.han a pri vat €I stable.
STORY: Any portioo of a building included between tne finlshad
ceiling next above it or tne finished under surface of the roof
directly over that particular f.laor.
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STR..!.tE.'T: A publio"thoroughfare v/hlch arfords the principIa means
of access to abutting property, including avenues. place. way,
drive, land, boulevard. highway, road and any other thoroughfares
e:x:cept allay.
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SECTION I. D.rinitions (Continued)
STRUCTURE: Anything constructed or erected, the use of Which
requires more or lesa permanent location on the land.
STRUCTURAL ALTERATIONS: Any change except for repair or replace-
ment in the supporting members of a building, such as bearing
wallsJ columns, beams or girders.
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TOURIST COURT (OABIN COURT): Any gr-oup of dW.llings which is
designed or intended for the temporary residence of mo\\or1sta
or transients. This term shall inolude n Cabin Camps, II Auto Courts II
"Auto Camps, n and "Motor Camps. II J
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TRAILER PARK. Any lot or plot or gr-ound on wl1:l.ch aCQ()mmodatioLls
are provided tor two or more trailers or muss cars used by
trana1enta as 11 v ing or .leeping quarter..
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TRAILER OR HOUSE CAR. A mobile residence on wheels, skids or
rollers propelled by an attached vehiole or o~her propelling
apparatus..
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USED CAR LOT: A lot or group ot' contiguous Iota, used f'or
th9 dl~play and sales of ~ed automobiles where no repair work
is done except the nec6ssuy reconditioning of the cars to be
displayed and flold on the premises.
USED CAR JUNK YARD: A ~ot or group of contiguous Iota uaed
for the dismantling or wreoking of used automobiles or the
storage, sale or dumping of dismantled or wreoked oara or
tn.ir parts.
YARD: An open spaoe on the same lot with a building, unoocupied
and tulobstructed trom the ground upward, except by tree or shrub-
bery or as otherwise provided herein.
YARD, FRONT: A yard across tho ru.l.1 width or tn. .lot .xtending
from tbs front line of the building to the front line of tbe lot,
excluding steps and unenolosed porches.
YARD, SIDE: An open unoocupied spaoe on the same lot with a
building between the building and tba .side line ot the lot ex-
tending tJJrough fr.om the front building line to the roar y.rd,
or to the rear line of the lot, where no rear yard is required.
YARD, R&R: A yard extenaing across the f'ull width of' the lot
and measured between the rear line or the lot and tb.e rear 110.e
of the main bu;Uding.
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SECTION II. District and Boundaries.
In order to regulate and restrict tho h.ight and siza of building;
to regulate and reetr.ict t.te intensity of land use; to regulate
the area of yards, courts 'and other open spaoes abc;tut buildings;
to c1assify, regulate and restriot tbe location of' commerce and
industriss and tho location of buildings designed for sp.cified
industrial, commercial, residential, and other uses, the unin-
corporated area ot: Co~11er County is hereby divided into dis-
tricts of whioh t~ere shall be -.. as follows:
R-l Single Family R.sidential District.
R-Z Oue and Two Family Residontia.l District.
R-3 Multip~e Fami.ly Rssidential District.
C-l Neighborhood Comm.rcisl District.
C-Z R.tai.l Commercial District.
C-3 Co....rcial - Light Industrial
I Industrial District
A Agr-icultural District.
4.
SECTION III. R-1. Single FemHy Reeidential District.
A. Uses Permitted.
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1. Single family dwelling.
2. Park and playgrounds and community centers owned by public.
3. Public schools and paroohial schools.
4. Public buildings used exclusively by federal, state, county,
O~ city government for public purposes, exce~t penal or
correctional institutions.
5. Churches and church educational buildings.
6. private nurseries..
7. Golf courses, except miniature cour- ses, driving tees I and
the like, operated for commercial. purposes.
8. Non-commercial boat docks and slips.
9. Guest Ho uses.
10. Accessory bUildings, including one private garage attaohed
to or detached from the main build~g, or private stable.
11. Real estate signs, bulletin boards subject to provisions
(If\ter) .
12. No tents for living quarters allowed.
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B. Area Regulations.
1.
2.
3.
4.
5.
Minimum lot size 5,000 square rest.
Minimum lot width at building line 50 fest.
Max1mum building area 25% of lot area. . t
M.inimum depth of front yard 25 feet. _ R. J " H'
Minimum back yard 25 feet. Accessory buildings may be
located on the rear yard provided trey do not occupy more
than 20~ of the rear yar d area and are not ne arer than
7t feet to any property line.
Minimum size yard 7~ feet.
Yard mus't be large enough to take care of septic tank and
drain field for no outgide toilets are permitted.
Maximum height of building two story.
Minimum area of building bOO square feet.
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B.
9.
SECTION IV. R-2. One and Two Family Residen1;ial District.
A. Uses Permitted.
1. Any use permitted in the R-l, single Family District.
2. One am two family dwellings.
3. Hospitals for humans, except mental.
4- Customary home occupations ino idental to above uses J
such as doctor's office, dentist ol'.L'ice, lawyer, dr~ss-
maker, and the like, and signs appertaining thereto sub-
jeot to provisions (later).
5. Poultry not to exceed 25 in number for nome consumption
only.
6. Grazing an1m~ls not ~o exoeed two for str1ctly personal
use of occupant of these premises, but keeping of pigs
or hogs strictly forbidden. Stalla for allowable llve-
stocI( shall be not less tnan 2~ fest from nearest resi-
dence and conform to state sanitary regulationa.
B. Area Regulations.
1. Minimum lot size 5,000 square feet.
2. Minimum lct width et building line 50 feet.
3. Maximum building size ~~% or lot area.
5.
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B. .Area Regulations (Cont1nued)
4. Minimum front yard 25 feet.
S. Minimlim rear yara ~"feat. Acce,sOry buildio.gs may be
located in the rear yard provided "hey do not oocupy
more than 20% of rear yard and not nearsr the.n 71 feet
to nearest property line. Rear yard must be surr1cient
to ta.k:e care or septio tank and drain t'leld tor no out-
sids tcilets are permitted.
6. Minimum side yard 7-t fest.
7. Maximum height building 2 stories.
B. Mio.imum arsa of building 600 squa.re feet.
SECTION V. R-3. MuHiple Family Reeidsntial District.
A. Uses Permitted.
1. Any use permitted 1n R-2 District.
2. Multiple Family Dwellings.
3. Apartmant Hotels.
4. Boarding and lodging houses.
5. Small an1mal hospital.
6. Guest house, tourist homes and signs appertaining
thereto subject to sign provisions.
7. Collages, clubs, lodges, Bocial and community center
buildinge, with s1gns appertain1ng thereto subject to
sign provisions.
8. Accessory building and uses customarily incident to any
of the foregoing uses, including private and stora.ge
garages wnen located on the same lot and not inVOlving
a business.
B. Area Regulations.
1. Min1mwn 10t .1ze 5.000 square feet for .1ngle family
dwelling, 6,000 squar~ feet for two family dwellings
end for each additional family unit, 1600 square feet
s::lall be alloy/ad.
Z. Minimum lot width 50 feet for single and two family
dwell1.nga.
3. Max3mum building area. shall. be 35% of .Lot area..
4. Minimum front yard "S feet.
5. Minimum rear yard t:~ ,feet. Rear yaru I'or one &.'1d two
fSJu1..Ly oe.ma as 11 A-I.II'
6. M+nimum ,.side yard 7-/; feet. No acces~ory builci.1ng snaLl
be Closer t.o..an 7-a feet to any property I1ne.
7. Maximum heieot, two story.
B. Minimum bui.Loing area, 400 equare feet.
S,EOTION VI. Nelg.bborhoC?Q Cowmeroial District "C_l.lI
A. Uses Permitted.
1. Any use permitted in R-) Residential District.
2. Offices, banks, tneatere, (not drive-in), beauty parlors,
photograph studios, drY-Cleaning and laundry pick-up
stationa, barber shops, t'ill:ing stations,. f.lorlst, auto-
mobile sales rooms, parking lots and stor.e.ge garages,
telephone exchanges, restaurants and lunch rooms, police
and fire Bt~tlonB, dairy products and ice cream stands,
skating rinke, and any other retail business, except the
following uses are prohibited expressly: automobile
wrecking yards, bottling works, bu,ilding ma~erlel store
yards, oleani.Dg and dying plants, ooal ani wood yards,
contractors I plant and storage yards,. 1e e plants, junk
yards, laundries except t1:e self -service type, machine
shops, meohanical garages, atone yards, veterinary
ho'spltaJ.5, storage ware.b.ous6B, dance halls, any kind of
manufaotury or treatment. of productb not clearly incl-
2. -dental to the product of a r~tail business oonduoted
on the premise B.
3. Advertising signs and. structures.
4. Tourist camps construoted .as specified in Section VI-C.
S. Accessory buildings and 'uses cu'stomarily, incident to
any of tb9 above Wles.
6. Trailer oampa or courts. constructed and operated pur-
suant to rogulations p%'eSd1'1bod by tho Stoto Board. of
Health (so. Soo1:10n vn-o).
7. Nothing herein would prevent the storage of materials
and supplies incident to a business, within the build-
ing or in an accessory building located on the .lot with
tho main building.
B. Area RegUlations.
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Minimum lot area, :eroot, side and rear yard I'e'quirements
.for dwellings shall be the same as presoribed in SectioD
V for the R-3 Residential District.
Rear yard depth of at least 20 feet shall be allowed
back of stores. Must be sufricient to take care of septic
tank. No outside toilets permitted.
Lot area, width and yard provi~lon do not pertain to
dwelling units or living apartments located on tha second
floors of commercial structw'es.
C. Special Provisions Relative to Bungaiow Courts aDd Cabin Camp.
Bungalow Courts, cabin courts or camps shall natbe
constructed upon sites less than 100 teet wide. The
front yard lines shall be the SaInS as set for Section
V for the Residential R-3 District. and rear yards mu:!t
compLy with the regulations af the State Board af Health,
for the suocessfuloperation of septic tanks.
The lot area Used by such oamps or courts anall not be
less than 10,000 square feet, and shall allow not lesa
than 2,000 square ~eet per building unit or per family.
The minimum distanoe between building unite shall be I
for single bungalows. 15 feetj I'OI' duplexes, 20 feet.
Side and rear yards snall be not less than 7t fl;let.
Before a permit is granted for construotion of c'abins
or bungalows. p.Lana shall be I'i_led with tne z;on.1ng
director showing .size and space of all buildings intend-
ed to be erected in the coU['t or oamps and the toto.l area
and boundaries of the site.
SECTION VII. Retail Commercial District "C-2.11'
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A. Uses Permitted.
1. Any use permitted 1n the C-1 Neighborhood Commercial
01 str 1c t.
2. Any business of a retail type.
3. Mechanicai garage.
4. Pressing and cry clea.oing establishment.
5. Second-hand car .Lots. .
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1n the rear of the structure used .as e.dmln1strattve-"(oft1ce~''7.
or sal es room.
Y. Ac'ces8o.ry buildings and uses' customarily incident to
any of the'above uses.
10. Drive-in theaters where sites, arrangement of' inlet and
exits have be~n approved by "the Boara of ACljustment.
11. In tp-!s district those uses excluded from "too C-l
7.
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SECTION VII. R6tall Commercial District "C-2' - Continued
district are likewise exoluded unless listed above
as permitted. No packing houses or canning plants
aJ.lowed.
B. Area Regulations.
Exc.pt as provided in Section XI, no buiLding or
structure s.bBll .exceed 2t storiea or .35 teet.
14inimum lot area and yard requirements for dwell-
ings shall be the SRme as prescribed in the R-3
Resid.ntial Dis trio t.
Lot area, wldtb and yard pt'ovisioOB do not pertain
to dwelling units or living apartments located on
second ~loorB of commercial structures.
Rear yard shall be sufrlo1en~ to take care ot septic
tank. N? outside toilets permitted.
SECTIOll VIII. . Co....roial-Light IndustriaL "C-3."
1.
2.
3.
4.
A. Uses P.rmitted.
1. Any use p.rmitted in C-2 Retai! Commeroial Distriot.
2. Wholesale and distribution businesses, incluq~.g
waI'ehouses aDd storage yards.
3. Packing houses.
4. Any light manufacturing which i. not obnoxious or
offensive by reason of emission of odor, 1'umes" dust,
smoke, noise, or vibration. The permission of ~uch
industri al operat ions shall be s 1.b j act to approval
of tbs Board of Adjustment.
5. Veterinary hospitals.
6. Acoessory buildings aDd uses customarily Incid~;mt to
any ot the above uses and located on. t.b! same lQt or
adjaoent thereto.
B. Area Regulations.
1. Same as for C-2 Retail Commercial.
SJ:!:CTION IX. Industrial Dis trict 11 I" .
A. Uses permitted.
1.
Uses permitted in too 0-) Commercial Light rndust;r1al
District.
Any lawful use that is Dot obnoxious or orfensive by
reason of the emission ot odors, rumBs, dU9t, smQke,
noise, vibration, radioactive waves, or BUbstanc~B.
or possesses an abnormal explosion hazard. Any indus-
try naving such attributes may, by application to the
Board of Adjustment, be granted permiss;ton under such
terms and conditions aa they shall determine ahall best
protect the welfare of the county. Any deviation -from
such terms and conditions shall render Buch permission
void ab initio.
Junk yards, contractors I equipment storage yaros, coal
and waodyards, as approved by tb5 Board af Adjustment.
Canning plants.
Accessory building. and uses oustomarily incident to any
of the above Uses.
2.
3.
4.
5.
8.
SECTION IX. (Industrial Dist.rlo"t TlIII - Continued).
B. Area Regulations.
1, Same as for C-) Commercial Light Industrial.
S.h;CTION X. Agricultural District flAil.
All ~eas of Collier County not in tne above mentioned dis-
tricts 13i)gll be considered as in 'the Agr1cul:tural District.
and uae,s: !3I).Q. ~ea regulations will be very liberal,
A.
;
.
1.
2.
Any uses permitted in Ind.ustrial District Ill".
Agriculture, horticUlture, end general r~ine, includ-
ing dairying, pasturage, fo!'estry, livasto~ and poultry
ra.lsipg, including stables, nureerles, grslnlhouses.
truck gardening and similar enterprises ~d uses, home
occupations.
Airpopt~ arr! landing fields.
Cemeteries fol'lowing site apprOval by the Health Authol'i-
tieGl..
Publio works and public utility racl1it.ies such as water
pumping plan~s and reservoirs, eleQtr1c transmission
lines and substations, broadcasting towers and transmia-
s Ion stat ions.
Sawmills and planing mills, turpentine stills and other
operations ~tllizing the natura~ resources of the region,
provided however, that no such operation shail b8 estab-
lished or conducted within 200 feet of the nearest high-
way right of way.
Advertising structures and signs must meet State regu-
lations.
J.
4.
5.
6.
7.
D. Area Regulati,)ns.
1. No lJermanent building shall be closer tna.n 2S feet to
any state or county highway rl gh't of way line..
2. No struoture anall be closer than J7j."feet to a known
section line (land line), except"where said section lice
crosses a subdivision where provisions far streets have
be en made.
SECTION Xl. General ProvisIons and Zxceptions.
1. Towers, "gabl1.e, spires, radio towersJ pent houses, water
tanks, silos, windmills, and similar structures may be
built to a greater height tOan the limit established
for toe district wherein such structures are located,
provided however, that no structure in exoess of the
allowable building height shall be used for sJ.seplng
or eating quarters or for any commercial purposes other
toan such as may be Inciden'tal to the permitted US'Ba
of the maln buildIng, and further that no structure
shall exceed in height the limitat 10ns determined to
protec"t the glide anglas established for any airport.
2a Lot of Record. Where a lot has an area less than the
required minimum area or width for the district in
which it 1s located, and was or record in Collier Counby
a"t- the time of the" adoption of tllls Resolution. aaid
lot may be used for any uae permitted in the district
in wnich it is located.
9.
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SECTION XI. (General Provisions and Exceptions - Continued).
7,
,
3. NON-CONFORMING USES. Exoept as herein provided, no
land shaLl be used nor building construoted, recon-
structed, extended or Btructur~17 altered except 1n
conformity with the provisions set forth; provided, how-
ever, that any non-conforming use existing on the date
tb..a:& these regulatioDs become efl'sctive, may be con'"
tinued, provided that the building or structure or .Land
involved shail be neither structurally altered or
enlarged.. No Don-conforming us e, if once changed to
a use permitted in the distriot, shall ever be changed
back to a non-cont'ormlng use. A non-conformitJ.g use
discontinued for 180 days shall not be restored. A
non-conrorming structure destroyed by tire or other
causes more than 50% of its value, shall not be res-
tored, but shall revert to a use permissible 1n the
district.
4. D~ED COVENANTS. This reeolution shall not interfere
wi th or abrogate or annul any easements" covenants, or
agreements between partie9, provided however, that where
this Resolution imposes a greater restriction upon the
uses of buildings and land or requires ~arger open
apace than is imposed or required by otner rules or
regulations, or by easementB, cDvenants, or agreements,
the provisions of this Resolution shall goverOa
5. No permanent outdoor advertising signs shall be con-
structed, altered or moved without first obtaining a
permi t.
&. Where subdivision plats recorded prior to the adJption
of this ReSO.lution have specificaLly deBlgpated lots
for commercial Llses, such uses shall continue to be
vai1d although not so indioated on this map.
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7. Subdivision plata will be pr6aen~ed to the County
Enginser a't l.east 3 days prior to the meeting of the
Board of County Commissioners, at Which time said plat
is to be filed) ,so tnat it may be ohecked to see if
it meets the zoning requirements. oubdlvislon must
be comp1.ete~;y staked blooks and .Lota,wlth required
permanent reference mswks. Streets must meet minimum
county road ~equirements when plat 1s filed.
8. Liquor stores shall not be closer than 1000 feet to
each other when located along the hiehwey.
SECTION XII. Board of Adjustment.
The Board of Adjustment shall have the- powers and
perform the duties set forth in Section 7. House
Bill No. 495. State of Florida. 1951.
S~UTION XIII. Administration.
These re.b'1llations B_lall be administered by the Zoning
Director, who shall issue permits and qollect permit
.fees. Requests for permits snall be accompanied by
a statement or location on lot and gener~ plan show-
ing general. appearance or proposed structure.
10.
?<'!
SECTION XIV. Enforcement, ReJnecliea, Amendments, Violations, Etc~
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These regulations 8b.a11 be ern"orced by- Remedies set forth in
House Biil No. 495, State or Florida, 1951. Any party or
parties propOSing or recommending a change in the district
boundaries ahall depo~it With the C~e~k of the Circuit Court
of Coil1er County. the sum of $10.00 to co'Ver the approximate
cost of this procedure and under no condition.shall said Bum
or any part thereof' be refunded for failure of the Board of
County Commissioners to adopt a,aid change. The Board ot
County Commissioners shall give notice of public bearing
on all a~plicationB or requests for amendments to the zoning
resolution of changes in the boundaries or classification
of zones, said notice being published at least tlree times
in e newspaper of general c1rcu~atlon tnroughout the county
over a period of at least fi.fteen {15} days in advance of
the hearing. The Zoning Director shaLl also have the lot
or tract of land arrected by the proposed change, posted
with a notice advising as to time and place or t be public
hearing and tbe nature of the change proposed. Said notice
shall be posted at least fIfteen days prior to the date of
public he ar ing.
SECTION XV. Fee..
::y,
,.,
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The .f'ollowing :fess shaJ.l be paid by the applicant for a
permit at the time such permit is issued, or in the event
no permit is required be!'are the work is begun:
New building, additions. pile driving, sea walls, swimming
pools. alterations or remodeling:
From
Valu,e to Val ue Fee
$ 1.00 $ 100.00 No charge
100.uo 1,000.UO $2.00
i,OUO.Ol 2,000.00 3.50
2,000.01 3,000.00 5.00
3,000.01 4,ooo.uo 6.50
4, ouo. 01 5,000.00 B.SO
~,Ooo.Oo $o.~o per $i,OOO.OO additional.
Over
Electrical:
In connection with building permit
$1. 00
Plumb ing:
In connection With building permit
$i.OO
Houaemoving:
One story buildings:
1. to ;'00 sq. .ft. 1n area
500 to 1000 sq, rt.
Over 1000 sq. rt.
$5.00
7.50
10.00
$10.00
Two stoPy bu1.ldings
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Project Status' Report 7/18103
Immokalee Housing Initiative. atus Report
The Immokalee Housing Initiative Project seeks to grade existing mobile home
parks in within Immokalee with a primary emphas on eliminating substandard
units as well as providing Infrastructure and land aping improvements, The
Immokalee staff has done much to inform prope owners about the Initiative
and the advantages of participation, The Hou ng Initiative staff began the
project with an initial inventory of individual prop, ies that contained three or
more mobile homes under the same ownership, T~ refore, property owners that
,
had three or more mobile homes on a single pro erty would be considered a
mobile home park eligible for the Incentives avai ble as part of the initiative
project. The initial inventory yielded a list of a proximately eighty-one (81)
mobile home parks, The total count of Immok ee mobile home parks was
reduced seventy- two (72) due to the following circ stances / factors:
. .
,
1
. After review of aerial photos, legal descripti
project manager, properties were determi .
parks, but single units on individual lots.
be parks
(Barnhart's Dirnar Lane Property, Canales 4'
MH Park, M. Garcia 214 4th S, North, N, Le
Plunkett property on Irnmokalee Dr)
. Some properties originally classified indivi
parks were combined into single mob!1
improvement plan, Two properties owne
properties, reducing the original count by 2
s and property cards, by the
d not to be mobile home
x (6) were determined not to
Street property, Austrberta
Jr, Delaware St property,
ually and listed as multiple
home parks for the site
combined their adjoining
arks (Deleon and Quintanilla
roperties), Additionally, one
uplicated in the inventory,
Prepared by: Melody L. Benbow- Senior Planner lmmokalee Housi 1 lnitiative
,
f
,
are combined, Griffin's Immokalee Drive
(1) park was deleted because it was
(Davenports Baker Street /Titus Lane)
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. Eight (8) property owners agreed to either re~ove the extra units that are
in violation of the code or divide their pl'Operttl rather than go through the
site improvement plan process ! I
(lrr/zany Park, Johns Park, E. Jones, Ortega A1fi Park, Watkins Made
Park, Aivarado MH Park, Pina MH Park, Picknrr MH Park),
. Thirty seven (37) property owners agreed I ~o participate in the site
Improvement plan process II
. Seventeen (17) deCided not to participate In t~e program and have been
relerred to code enlorcement lor abatement. II
"
"
~f the Thirty-seven mobile home park owners that ~reed to participate in the
site improvement planning process, ';
1 . Eight (8) mobile home plans have been approv 'd thus lar
. Twenty-lour (24) have been submitted and a in various stages of the
review process
. Nine (9) are pending submittal lor review i
i
. Three (3) owners that originally agreed to
improvement plan applications on file at the
been in contact with our office since January,
Project Status Report 7/18/03
Of the 72 mobile home parks in the inventory:
. Ten (10) already had approved plans with the
(R& B Park SDP#96-1 02, Proverbs LN SDP#
Park SiP 2311, DavenpOr1 PUD#87-038, Ch
SIP 2686, Sate/la's Park SIP 2311, Andy's R
SDP#88-012, B& B Renta/ Park SIP 99-20, B
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ounty
-164, Caesar-Hildalgo
les Griffin Carson Park
lals SIP 1313, Kystal Ln
nhart Camp 1 SIP 99-47)
articipate and have site
mokalee office have not
I
In an effort to encourage continued pal1iciPatio~ from those who initially
agreed to participate but have not submitted Pla11' a deadline for submittal
was determined and a letter was sent 7/14/03 to o~ners advising them of that
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Prepared by: Melody L. BenlJow- Senior Plunner Immokalee Housing 11~tiatiYe
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Project Status Report 7/18/03
"
time, The property owners were also ad sed of the risk of Code
Enforcement measures if timely plan submittal d s not occur, (See attached
list of non-submittals)
I
Twenty- eight (28) pre app meetings were held fr rn December 2002- March
2003 for Immokalee Mobile Home Parks, (This :total only represents pre
I
applications held with Melody Benbow). There is a ~ifferential in the number of
I
pre application meetings held and the total number f SIP participants. Four (4)
applicants that submitted plans opted not to have pr application meelings, Two
applicants had pre application meetings with othe planners. The remainder
either missed their scheduled pre app meeting or y take their chances and
submit a plan without a pre application meeting,
Five (5) of the 17 non- participants have been served ith notices of violation and
are in various stages of the code enforcement pr ess. According to code
enforcement staff, most park owners served are takin steps to abate the various
code violations,
Coordination meetings have been held in order to c duct a housing conditions
survey for the Immokalee Area as the second pha of the Housing Initiative
Project. Representatives from Community Red elopment and Planning,
1,ousing and Finance and Code Enforcement ha I come together to help
develop and implement a comprehensive housing onditions survey that will
provide data that will be beneficial to all. To date, a set of classifications for
Prepared by: Melody L Benbow- Senior Planner ImmokaJee Housing Ilrative
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d.,.
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housing conditions has developed, a draft survey ins
recently refined after a survey pretest using pictures
examples of each housing condition classification,
being processed to aid in the survey, Training mat
prepare survey particiapants for the fieldwork,
The coordinating departments are determining the a
be provided to assist in the effort,
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ument was designed and
at were taken to provide
ditionally base maps are
ials will be developed to
runt of resources that can
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'Ino palilIT!s illTfaq urn I AIIM 01 S1'l ssol 1'l l1'lIW I sa asuodsal :>[o!nb 1'l Ol p.roM.TOJ '1001 I
'4uno;) alp Aq alq1'lUllA1'l
apew AItemuf S1'l wId dIS alp aSU Ol l~Jl alp pap.rOJJll uaaq lOU sell llllp aalll'lolUWI II! a.rall
UO!lnlll!s AID IT! aSIa lIUO OU MOUJ[ I l1ltp U! uO!l{SnJ A.iOlElTfUl!.IOS!P II U! pllllla.Il ilu!aq lU1! I WIn paJ
I lSJ[.rod amoq 1I1fC1om llSllIfl .TO] 1I11JID1oUIUrj lTf a.Tal{ slaIflo Alll3W os Aq pasn UIllJllOld aums 1I1p
asn 01 paMo[lll il1I!aq lOU UIll I AqM 'laUO!SSJWUIO;) 4uno;) lamO;) Am Sll 'noA :>[Sll Ol am PlnoM 1
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'sapoo llupslXa MOU aIfl Ol dn ,\J.Tadold AW lllTf.Tq OJ Apamal s"ll aso OJ aI'lll
lllTfaq lTf ssaoons ou pel{ aAllt{ lnq 'umJllold aA!lllmur (dIS) Ull[d lllQWlIAO.ldWJ al!S aa{1lJ[oWUTJ aIfl
lTf lllTfl1'ldPBllld Aq SUO!+ll[OjA alp alllqtl 01 .\lunO;) al{l IplM J[lOM Ol sJ.IOJJa ap1l1:U Alpaluadal aAnl{
I 'sO,61 aIfl lI:Jll!s ll.rod awoq auqow 11 se 'paso aq OJ s;Jnu!+uoo pw 'pasn uaaq Sllq ,\J.Tado.rd s!'l.L
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lallam lOJ lUllWaOJQJU3 apO;) .\lunO;) lamO;) Aq pails AJ.Iado,rd aAoqR alp JO .raUMO alp lU1! I
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s.rauo)ssflIlliIO;) .\luno;) JO p.rooS
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ColLi~r County
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COLLIER COUNTY GOVERNMENT
GIWWTH MAI~AGEMEI,T DIVISIONI
PLANNING AND REGULATION
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
(239) 252-2400 FAX (239) 252-6358
www.colliertlov.net
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SiP (>R~-I~Y"llCA'rlON NlE'E'rING NOTES
&. SUBMITrAL CHECKlIST
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Dote, 12.. ~ 1. ./0 Time, q: ?O Conference Room' C-
Prolec' Name, __~~. f-e-Q(Ae.5::,
Site Address
110\ ALA~UA:
"51'.. IM~
/
Phone, -:yfE,.~ Fox.
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J>,pplicant: ~ ~'2fa,O
Assigned Pionner--1:1Uf g ~l{Ff?-..
Meeting Attendees: (Attach S!gn~ln Sheet)
NOTES:
.
-#:T1Z...\nJSF''+iIDiV 1'LAl0fJ1Ne - De liS, ~t".QcJ I~b urv~SS
AVVINb UNITS. 5VJ>t1/7 A L=:TTb'<L >T.;.'T,N6 'n,,~z..c. ,,,- NO
-llilc..u,.~ If' V!.l/l'?
0/' lEAN;; A'TI /.J 1'4TH<.VR'-~ - 5, ~4~'<-S. H ~
i\-l.-O N'(; Ay~ I,-,<,?> LE 11 M:Y"''''; fie /J'tA(,G (;;). {'.(')/J l<V l.c
",,111+ QO~7,([)}J> , -I-
po.,lJ.I',-RF:-:-,SINC \ ~~ \ ,i>..\\TS (')\'~ :"'>\\F \>l f.\'\--.\ P\\--\\\ ~n=:;-\l"'D
\,,\l:H L.\ II I'H 1V'v\(?o.,.FRS
f-7I~(2 JlL4-t~~ C--M- 5"ffc- l'vt....~,( I!lrY"'I~ o1-,t/L. /frV'~ "1.-"((..,.-'
/"'l4LF~ 7J11MLJ \:?) t.ncJ~ "v..p-ptJs. Mile S";JJ/L:,
<2.'-/G Q(fV. ,- .J,.,.,c'G )"< <?<O'r } ""-fI.. (...;-,( ,'......P ?> ....J.
~ ~,./6f ~ LH:i ~~ l=i"fi:11W{ Di~. L~(ft
~~T;~~~~~.
_~ 'fF;l~c)N'~/D~~7,-, ~.<<---
~CI-1~ O@ff.
CoWer CoUHty
. .
COLLIER COUNTY GOVERm~EIH
GROWTH MANAGEMENT DIVISIONI
PLANNII,G AND REGULATION
2600 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
(239) 252-2400 FAX (239) 252-6358
www.collierQov.net
511~ lMPRCVEMEJH PLAN
(srr) /d'>PLlCJ-'."C10!.J
;;'U~.'IJ\lTT Al CHEC!{l15T
THIS COMPLETED CHECKLIST IS TO BE SUBMITTED WITH APPLICATION PACKET IN THE EXACT ORDER
LISTED BElOWW/COVER SHEETS ATTACHED TO EACH SECTION,
~
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I,OTE: INCOMPLETE SUMBITTAlS Will NOT BE ACCEPTED,
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I-~--~-._--------------~----- --~~~-~-----T--'
# OF NOT
REQUIREMENTS i COPIES REQUIRED REQUIRED
SUBMITTAL REQUIREMENTS, ----
Additional set if located in the BoyshorejGuleway Triungle -
Redevelopment QreCJ 1 .,.----
Addjjjonal set jf locClfed within 1he RFMUD or RLSAO Clreas 1 ~~-
SIP Application (download from website for current form) 12 V--
Cover letter briefly explaining the project 12 v
-- -.
Site Plans per Division l Q.Q2.03.B.2.d J 2 v
~-' -~-- --.-
Addressing Checklist 1 X
FOR COMMERCIAL DEVelOPMENT, , "'"
Architectural Plom, including 1 color rendering (signed & sealed) 5 ~
londscape & Irrigation pions (signed & sealed) 7 ~
Slle Cleo ring plan/vegetation invent;~y ,
7
Bullding elevotion with dImensions & floor pions (if applicable) '7 ........ ~-
Boundary & fopographic SUI"vey (1 signed & sealed) 5 ~
I-c--- --'
Deed or contract for sole 2 <---
SFWM?_ permit, I)~.ll~dificotlon, or 'Noiver 2
-,
Unlity lettert: of .".::I'lslli'lit, (water & sewer) 1 ...--
--
DEP Utility installation permits (wateljsewer) 1 ../
Engineering Report with Assumptions cmd Explanations per Ord,
2001-57 3
Excovation permit opplication 1
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Other Required permits:
Applicanf! Agent Signature
Dale
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ColUey County
COLLIER COUNTY GOVERNMENT
GROWTH MANAGEMENT DIVISIONI
PLANNING AND REGULATION
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
(239) 252-2400 FAX (239) 252-6358
www.collierQov.net
Fees:
~OO SIP Review
o $250 Site clearing (first acre or fraction thereof)
plus $50 for each additional acre or fraction ($1,500 maximum)
o Utility Plan Review & Insoectlon;
Construction document review - 0.75% of probable water/sewer construction cosh
Construction Impectlon - 2.25% of probable water/sewer construction costs
o Roadway Dral'w.ge & Starmwater ManatlCment,
ConstrucliOli dOClJl11ent review - 0.75% of probable cOllstruction cosh
Con,tructioll inspection - 2.25% of probdble construction cosh
o SIP InsubstClntial Change Review $..:100 for the first page and $100 for each additional page.
~50 Fire Review fee
o $20 Environmental Health Review (if site has septic lank, grea5e trap, underground tanh)
o $500 Pre~AppliCCltion fee (Applicafions submit1ed 9 months or more affer the date of the last pre~c.tpp
meeting shall nol be credited towards <lpplication fees and a new pre-application meeting will be
required.)
Notes required on the SIP:
a, Exotic vegetation as defined by the Collier County Land Development Code shall be removed
from 1118 site and subsequent annual exotic removal (in perpetuity) shall be the responsibility of
the property owner.
b. The review and approval of Improvement Pians does not authorize the construction of required
improvements, which are inconsistent with existing easements of record
c, The propelty owner is responsible for replacement of all dead landscape material and for the
maintenance of the required irrigation system
d, Vegetation to remain shall be protected with approved barricading
barricading will remain in place until completion of construction.
(detail shown) and
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From: LevyMiehael [MiehaeILevy@colliergov,net]
Sent: Tuesday, February 22, 2011 11 :23 AM
To: ggreeneng@aoLeom
Ce: AuelairClaudine
Subject: SIP for 1101 Alachua Street
Good Morning Gina,
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I need to inform you that your SIP submittal for 1101 Alachua Street, will not be processed, Per Jacqueline
Hubbard, of the County Attorney's offh:e, the subject property Is In litigation and no submittal may be accepted.
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I have your submittal in my office. Please stop by and pick it up.
Thanks
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Mike
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Michael S. Levy
Operations Coordinator
Operations and Regulations
Growth Management Division - Collier County Government
2800 North Horseshoe Drive, Naples, FL, 34109
Phone: 239-252-4283
Fax: 239-252-6349
michaellevy@colliergov.net
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Under Florida Law, e.mail addresses are public records. If you do not want your a-mail address released in response to a public records
request, do no! send electronic mail to this entity, Instead, contact this office by telephone or In writing.
4/27/2011
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JONES
FOSTER
JOHNSTON
& STUBBS, P.A.
Attorneys and Counselors
HagJer Ccnler Tower. Suile 11 no
505 South Flagler Drive
Wes! Palm Bcm:h. Florida .H'-lO I
Telephone (561) ()5l)-3000
Mailing Addrt!~\.
PO;;! Oflke Box 3475
Wefil Palm Beach. Florida ~J402~3475
Margaret L. Cooper
Direcr Dial: 561-650-0464
Direct Fax: 561-650-0422
E-Mail: 1l1coopel@jones-IOSIC! com
May 1. 201]
Jennifer Bakel. Enforcement Supervisor
Collier County Code Enforcement Department
2800 Horseshoe Drive North
Naples. Flor ida 34] 04
Rc: Board of County Commissioncr-s of Collicr County v. Blockc.-
Collier Coullty Codc Enforccmcnt CEB Nos. 2006-16, 2006-17, 2006-18
Ou.- Filc No. 25239-1
Dem Ms Baker:
Olll ofJice lepresents Jerry and Kimberly Blocker and Kenneth James Blocker The Blockers
have J1led a Petition belule the Coele EnJurcement Board plllsuant Section B of the Immokalee
Overlay District Regulations_ LDC Section 1.03.07 A copy of the relevant portion of LDC
Section 1.03 07 is enclosed, This provides that the Code Enlulcement Boarel has the authority
aftcr l1nding violation to authorize a required Site Improvement Plan application.
We would like to get the Petition scheduled onto a CEB agenda. We anticipate a 3-holll hearing
for this and would request to be put on agenda where that time frame can be accommodated
Can you please call me so that we can schedule this
Thank you Iur YOlll allention to this mailer.
Sincerely.
JONES. FOSTER. JOHNSTON & STUBBS. P A
By
Cooper
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Enclosure
ee: Jerry B. Blocker (w/enclosure via e-mail)
P:\DOCSi2;}]t)\IlIl/JOJ\1 IR\l i\N1m9; DOC
baker fL' [C(IIlCS! llu1lln agcndn] hour hClIring
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COLLIER COUNlY LAND DEVELOPMENT CODE
2.03.07 A.5. 2.03.07 A.5.
5. Main Stree~ Overlay Subdistricl Special conditions for, the prop"rties identified in the
Immokalee Area Master Plan; referenced on Map 7; and fUrther identified by tha designation
"MSOSD' on the applicable official Collier Counly Zoning Atlas Maps. The purpose of this
designation is \0 encourage development and redevelopment by enhancing and beautifi'ing
the downtown Main Street area through flexible design and davelopment standaros.
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MAIN: STReET OVEfUAY SUBDISTRICT
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Map 7 Main Street Overlay Subdistrict
onconformlng Mobile Home Park verlay Subdistrict Establishment of special conditions
for lhese properties which y virtue of actions preceding the adoption of Ordinance No.
91-102, Oelober 30,1991, Were deemed to be nonconforming as a result of inconsls-
ten as with the lend development onrI~ and are located wnhln the Immokalee Urban
Boundary as depleted on the Immokelee Area Master Plan.
a.
Purpose and inten!. The purpose of these provisions is \0 recognize that there are (
nonconforming mobile home parks in the ImmokaJee Urban Area, to provide
incentives to upgrade these parks while requiring the elimination of substandard
unils. and to allow park owners to take advantage of alternative development
Supp. No.1
LDC2:44
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ZONING DISTRICTS AND USES
2,03.07 A S
standards in order 10 cause some upgrading of condllions that would normally be
required of conforming mobile home parks. Travel trailers, regardless of the square
footage. are nol permitted as a permanenl habllable struolure.
Required slle improvement plan application. The property owners of all nonconform-
ing mobile home developments/parks that were in existence before November 13,
1991, I.e.. that predate Ordinance No.9'" 02, the land development code, shall be
"required to submll a slle~'m rovemenl plan (SIP) meeting the standards set forth
beiow-er;lanl1!tl'lHli'OOO ereatter within the time frame sel forth In an order of
the" Cod,j i=nfn",~m"nt Rn'"rq fin ing a violation of this section@bythe date set forth
in a ComPli~ttlemenrAgreement enlered into between Collier County and
a property owner acknowledging such a violalion and also establishing the date by
which such violation will be cured through the SIP submittaJ process set forth below.
The slle improvement plan (SIP) master plan shall Illustrate the way existing
buildings are laid out and the infrastructure (I.e. utilities, streets, drainage, land-
scaping, parking and the like) 10 serve those buildings. The number and location of
buildings shall be reviewed for consistency wllh Code requirements (I.e. setbacks,
space between buildings, density, and the like). Similarly, the SIP shall serve to
provide a besis tor optaining approval of required infrastructure improvemenls such
as those referenced'herein. The approved SIP showing all of the above shall become
the official record aclmowledgingthe legal use of the property. Failure to initiate this
process within the time frames set forth above, will result in a Code violation in which
the property owner will be required to immediately remove all mobile homes which
have.nol received a building permil and all mobile homes deemed to be unsafe and
unfit for human habilation, and otherwise contrary to the county's housing code
unless otherwise prohibiled by state lew.
For the specITIc requirements conceming the SIP submission referenced in b. and c.
above, see Section 10.02.05 F. of this Code.
Supp. No.1
LDC2:44.1
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORlDA
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY,
Petitioner,
CEB NOS.: 2006-]6
2006-] 7
2006-18
vs
JERRY & KIMBERLY BLOCKER;
Respondents,
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and
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KENNETH JAMES BLOCKER,
Intervenor.
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RESPONDENTS' PETITION TO CODE ENFORCEMENT BOARD
TO UTILIZE SITE IMPROVEMENT PLAN PROCEDURE
TO COME WITHIN COMPLIANCE WITH CEB ORDERS
.
COME NOW Respondents, JERRY BLOCKER and KlMBERLEA BLOCKER, and
Intervenor, KENNETH JAMES BLOCKER, by and through undersigned counsel, petition the
Code Enforcement Board to utilize Site Improvement Plan ("SIP") procedure to come within
compliance with CEB orders, and hereby state:
Jerry and Kimberlea Blocker me the owners of a Mobile Home Park located in
InmlOkalee, which was built in the 1950's-60's
2 Kenneth James Blocker owns and holds a mortgage on the Pmk and has an
interest in these proceedings.
3, The Park consists of three separate tax parcels with three separate tax folio
numbers, although it is operated as one facility. Due to the three tax folio numbers, the County
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brought tluee separate Code Enforcement PlOceedings - Code Enforcement Board Case Nos
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2006-16,17 and 18 These, however, have been treated as a single proceeding
4
The Park was permitted by the County and the State and has been opel ating fOl
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nearly sixty years. It became nonconforming under the 1991 LDC.
5, The Blockers bought the Palk in 2002
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In 2006, the County decided that 60 years of permits had been erroneously issued
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in violation of zoning and brought a code enforcement action.
7. There is no contention of a building violation, unsanitary conditions or other such
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complaints. The only issue is merely that the longstanding use is now illegal.
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8, On May 5, 2006, the Code Enforcement Board entered orders finding a zoning
violation. The orders (finding that the Park was a non-conforming use) required the Blockers to
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either:
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(a) obtain rezoning of the Park, or
(2) demolish the Park
See Orders attached hereto as Composite Exhibit "J ".
9. The Blockers argued on a Motion for Rehearing that the Park was grand fathered
and they had vested rights. Based on advice from the COlmty Attorney, the Code Enforcement
Board ruled that it would not address this issue, but had to decide the case purely on present
zoning.
10, The Blockers thereafter took a simultaneous two-track approach:
Track 1: Comoliance with Order: The Blockers have tried a variety of ways
to comply with the orders to obtain the zoning.
Track 2: Aooeal: The Blockers appealed the orders regarding the
grandfathering issue.
2
11. As to Track 2, the appeal is now final The Blockers lost and the CEB orders
were affirmed,
m
12 As to Track 1, notwithstanding that the County told the Code Enforcement Boal d
that it wanted rezoning, it has steadfastly refused to allow rezoning. (Evidence will be presented
at the heating on this Petition of the multiple attempts to amend the Growth Management Plan to
come within zoning.)
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13 There is an alternative rezoning procedure available under the applicable codes
which gives the Code Enforcement Board the authority to pellnit the Park under an SIP
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arrangement. See Immokalee Overlay District Regulations LDC 2 03.07 Nonconfol1ning
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Mobile Home Park Overlay Subdistrict attached hereto as Exhibit "2",
14. This code section recognizes the lllatlY (over 70) nonconfol1ning mobile home
pat"ks in Immokalee and provides incentives to upgrade See subsection a:
a.
Purpose and intent. The purpose of these
provisions is to recognize that there are
nonconforming mobile home parks in the
Immokalee Urban Area, to provide
incentives to upgrade these parks while
requiIing the elimination of substandard
units, and to allow park owners to take
advantage of alternative development
standards in order to cause some upgrading
of conditions that would normally be
required of conforming mobile home parks,
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.
15. This code section allows for owners to apply for a site improvement master plan
to be submitted so that the unlawful nonconforming use becomes a lawful nonconforming use
on approval of an SIP and upgrading ofthe facilities
]6, Subsection b of this code provides three avenues fO! the SIP procedure to occur:
(a) Voluntat"y submission of an SIP by the owner by January 9, 2003;
(b) Settlement agreement with Collier County to allow an SIP; or
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Order of the Code Enforcement Board to allow an SIP
17, The Blockers did not submit for an SIP by January 9, 2003, but have done so
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subsequently.
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18
The County has accepted other late filed SIP applications, but not the Blockers'
19, The zoning staff has returned the Blockers' application. The County Attorney's
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office ordered that staff cannot process the application because of the Blocker appeal and
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litigation
20, The staff advises the Blockers that their SIP application is consistent with all
other code requirements and would have otherwise been approved, but for the instructions,
,
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County staff has approved other similarly situated mobile home parks which
voluntary submitted after the deadline
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The only avenue left for the Blockers to do the SIP procedure is via the Code
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Enforcement Board's authority to permit the same.
23. The Blockers earlier tried to approach the Code Enforcement Board on this issue,
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but the County Attorney advised that, due to appeals, the Code Enforcement Board did not have
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jurisdiction to not hear it, either. Those appeals are now finaL This Board now has jurisdiction
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24.
The Blockers are willing to do all necessary upgrades to meet the SIP criteria.
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The mortgage of Kenneth James Blocker can only be protected by complying
with the CEB Orders.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been f1rrnished by
U,S, Mail, to: Patrick G. White, Esq" Porter Wright Morris & Arthur, LLP, 5801 Pelican Bay
Blvd., Ste. 300, Naples, FL 34108, this ~ay of April, 20 II.
4
JONES. FOSTER. JOHNSTON & STUBBS, PA
Allorne)', (or Respondel1ls Jerry & Kimber/ea Blockel
505 South Flagler Dr. Suite] ]00 (3340])
Post Office Box 3475
West Palm Beach, Florida 33402-3475
Telephone: 561-659-3000
Fax: 56]-650-0422
By
> 11 (<;"" 0 1. "1..
argare! L. ooper, Esq
Florida Bar No 217948
rncooner(Zu i ones~ foste r. co 111
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p~tilion utilize sip procedures
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Retn: rnmomcl 3B35446 OR: 4033 PG: 2458
COLLII! COOiTI COOl CRFO!CINIR !RCOHOIO 1. the OFFICIAL RiCORDS .f COLLIIR COUHTI, FL
SKIILII H GARCIA 05/09/1006 at 11:01AN ORIGRT R. RIOCI, CLII!
2100 I ROlSISROI DR cm BLOG
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CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORlDA
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BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORlDA,
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Petitioner,
CEB NO 2006-16
vs.
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JERRY & KIMBERLEA BLOCKER,
Respondents
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THIS CAUSE came on for public hear' g
testimony under oath, received evide c,
Findings of Fact, Conclusions of La . an
d the Board, having heard
atters, thereupon issues its
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I. That Jerry and Kimberlea @! e
2. That the Code Enforcement
Respondents, having been duly notitie
3. c . ed mail and by posting.
erR:
4. That tite real property located at 11 0 1 Alae ,okalee, FL. aIkIa "Shells Trailer Park," Folio
Number 63864720000, more particularly described as Lot 8, Block 48. Newmarket Subdivision, as recorded in Plat
Book I, Pages 104 and lOS, Public Records of Collier County, Florida is in violation of Collier County Ordinance
04-41, the Collier County Land Development Code, as amended, seetions 1.04.00, Sub. See's 1,04,01, par's A, B
and C, and 1.04.05, see, J .05.00, sub see. 1.05.01, par. F, see. 2,02.00, sub. sec. 2.02.01, par. D, and 2..02.03, see
2.03,00. sub see 2.03,03, par. A, see. 2,04.00, sub, sec. 2.04.03, pg. LDC2:1 13. see. 2.05.00, sub, sec. 2.05.01, par.
A, see. 8.08.00, par's B and D, sec. 9.03.00, sub. sec. 9.03.01, par. D and 1970 Zoning Regulationllmmokalee Area
Zoning District, Anicle IV, see's 4.1.4.2, 4.3 and 4.4, Article VII. see's 7, I and 79 and Anicle X, see, 10. I I, I-C-
3, par. 2 in the following particulars:
Unlawful and inappropriate development and residential use oflndustrial zoned property (previousiy
zoned 1-C-3) without prior Collier County Zoning and Building Permits. Perpetuating a use inconsistent with the
Collier County Growth Management Plan -Immokalee Master Plan (GMP).
ORDER OF TIlE BOARD
Based upon the roregoing Findings of Fact and Conclusions of Law, and to the authority granted in
Chapter 162, Florida Statutes. and Collier County Ordinance No, 92-80, it is hereby ORDERED:
EXHIBIT
i Composite
j "111
OR: 4033 PG: 2459
That the violations of Collier County Ordinance 04-41, the Collier County Land Development Code, as
amended, sections 1.0400, Sub. Sec', I 0401, par', A, B and C, and 1 0405, sec 1.05.00, sub sec. I 050t, par F,
sec. 2.0200, sub sec. 2.02.01, par. D, and 2 02 OJ. sec 2 03 00, ,ub sec 2.03.03, par A.sec 2.04.00, sub, sec.
204.03, pg. LDC2:11J, sec. 2 05 00, sub sec 205.01, par. A, see g 08 00, par's Band D, 'ec, 9 03 00. sub sec
90301, par. 0 and 1970 Zoning Regulalionllmmokalee Area Zoning District, Article IV, sec's 4.1.4.2,43 and 4 4,
Article VII, sec's 7, I and 7.9 and Article X, scc. 10.11, I-C-3, par. 2 be corrected in the following manner:
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I If the Respondents elect to rezone the property, by contaCling the Collier County Zoning and Land
Development Department and scheduling a pre.application inquiry and review within 14 days (May 12, 2006).
2. Ifrewning, by acting with due diligence in pursuit of said rezone and by obtaining same within 365
days of the date of the pre-application inquiry/review
3, If rezoning, by engaging the services of a design professional to prepare and submit a Site
Development Plan (SOP) for Collier County Zoning and Land Development personnel's review and approval
within 60 days ofrezone approval;
4, Ifrezoning, upon approval of SDPISIP, by acting with due diligence to submit a Complele and
sufficient application for Collier County Building Permits for all improvements for residential Use of properties in
question within 60 days of said approval;
5. If rezoning: by receiving all requ' ~Wi@e9 ificates of Completion Wilhin 120 days of
issuance of the aforementIOned BUlldmg Pe ~~ NA
6 In the allemative. by obta' mplete and sufficie 'C~ County Demolition Permit within
90 days (July 28, 2006) or within 10 d 5 abandoned pursuit ofrezo an r SOP/SIP, whichever is
applicable;
7. If obtaining a demo Ii on
permItted, additions, improvements use
rezone and/or SOP/SIP abandonme t;
8. Thai if rezoning, tbe es
14 days (May 12,2006). then there ;1
9. ThaI if rezoning, the R
365 days of the date nfthe pre-applic' , quiry/review. then
th,t the violation conlinues past that d <tF:
]0. That ifrezoning, the Resp d
60 days of the rezone approval. then there
pasl that dale..
I I. That if rezoning, the Respondents do no . paragraph 4 of the Order of the Board within 60
days of the date of SOP/SIP approval, then there will be a line of $1 50 per day for each day that the violation
continues past that date.
12. That Ifrezoning, the Respondents do nol cnmp/y with paragraph 5 of the Order of the Board within
120 days of the dale of issuance of the Building Pemits. then there will be, fine of $150 per day for each d,ythal
the violation continues past that date,
13. That if, in the altemative the Respondents elacllo obtain a demolition permit, they do not comply
with paragraph 6 of the Order of the Board within 90 days (July 28, 2006), then there will be a line of $1 SO per day
fur each day that the violation continues past that dale,
14. That if, in the allemative, the Respondents eleCllo obtain a demolition permit, they do not comply
with paragraph 7 of the Order of the Board within 180 days (October 28, 2006), then there will be a fine of $1 SO
per day for each day that the Violation continues past that date.
15. That the Respondents are to noti/)' Code Enforcement officials that the violation has been abated and
request the Investigator to come Qui and perform the site inspection.
16. ThaI the Respondents are ordered to pay all opemional costs incurred in the prosecution of this Case
in the amount of$354.16
f e Order of the Board within
. adon meeting is scheduled.
e Order of the Board with in
of$150 per day for each day
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3 of the Order of the Board within
ch day that the violation continues
*** OR: 4033 PG: 2460 ***
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Any aggrieved party may appeal a final order of the Board to the Circuit Court within thirty (30) days of
the execution of the Order appealed. An appeal shall not be a hearing de novo, but shall be limited to appellate
review of the record created within, Filing an Appeal shall not stay the Board's Order,
DONE AND ORDERED this ~ day of me'-/' 2006 at Collier County, Florida
CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORlDA
BY: JL. J3L.P'
Sheri Barnett, Chair
2800 North Horseshoe Drive
Naples, Florida 34104
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STATE OF FLORlDA )
)SS:
COUNTY OF COLLIER)
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I HEREBY CERTIFY that,
Mail to lerry and Kimberlea Blocker, 183
2006.
on, Esq.
Florida ar No. 750311
Attorney for the Code Enforcement Board
400 Fifth Avenue S, Ste. 300
Naples. Florida 34102
(239) 263-8206
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~ foregoing instrument was ae
2006, Sheri Barnett, Chair of the Cod
_ personally known to me or
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CODE ENFORCEMENT BOARD
COLLIER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORIDA,
Petitioner,
CEB NO,. 2006-17
Respondents
3835447 OR: 4033 PG: 2461
RlCOlDlD in omClAL RlCORDs of COLLlBR coum, IL
05/01/1006 at 11:0ZAI OIIGHT I. HiOCI, CLERI
lie ru 11,00
vs.
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JERRY & KJMBERLEA BLOCKER,
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COLLIII COUITr COOl BIIORClHII
SHIRLlr ! GlReI!
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d the Board, having heard
atters, thereupon issues its
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spondents and that the
3, e c' ed mail and by posting,
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4. That the real properly localed at 1101 Alae mokalee, FL, aIkIa "Shells Trailer Park," Folio
Number 6386468000 I, more particularly described as Lots 6 and 7, Block 48, Newmarket Subdivision, as recnrded
in Plat Book J, Pages 104 and 105, Public Records of Collier Counly, Florida is in violation of Collier County
Ordinance 04-41, the Collier Counly Land Development Code, as amended, sections 1.04,00, Sub, Sec's 1.04,01,
par's A, B and C, and 1.04,05, sec, 1.05.00, sub sec, 1.05,0!, par, F, sec, 2,02,00, sub. see, 2,02.01, par. D, and
2.02,03, sec 2,03.00, sub sec 2,03,03, par. A, sec. 2,04.00, sub, see, 2.04.03, pg. LDC2:113. see, 2,0500, sub, sec.
2,05,01, par, A, sec. 8,08,00, par's B and D, sec, 9.03,00, sub. sec. 9,03.0J, par, D and 1970 Zoning
RegulationllmmokaJee Area Zoning District, Anicle IV, sec's 4.1, 4.2, 4,3 and 4.4, Article VII. sec's 7.1 and 7.9
and Article X, sec. 10.11, I-C-3, par. 2 in the following particulars:
Unlawful and inappropriate development and residential use oflndustrial zoned properly (previously
zoned I-C-3) without prior Collier County Zoning and Building Permits, Perpewating a use inconsistent with the
Collier County Growth Managemeot Plan -Immolcalee Master Plan (GMP).
ORDER OF nm BOARD
Based upon the foregoing Findings of Fact and Conclusions ofLBWI and to the authority granted in
Chapler 162, Florida Statutes, and Collier Counly Ordinance No, 92-80, it is hereby ORDERED:
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OR: 4033 PG: 2462
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That the violations of Collier County Ordinance 04-41, the Collier County l.and Development Code, as
amended, sections 104.00, Sub. Sec's 104,0 I, par's A, Band C, and I 0405, sec, I 05 00, sub sec. I 05 0 I, par F,
sec. 20200, sub sec. 2.02 01, par. D, and 2 02,03, see 2.03 00, sub sec 2.03.03, par. A, See 204.00, sub, sec
2.04.03, pg lDO:II3, sec. 2 0500, sub. sec. 2.05 01, par. A, sec. g 08 00, par's B and D, sec. 9.03 00, sub see
9,03.01, par, D and 1970 Zoning RegulationlImmokalee Area Zoning District, Article IV, see's 4. 14.2, 43 and 4.4,
Article VII, sec's 71 and 7.9 and Article X, see 10.1 I. I-C-3, par. 2 be corrected in the following manner:
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I. If the Respondenls elect 10 rezone the property, by contacting the Collier County Zoning and Land
Development Departmenl and scheduling a pre-applicalion inquiry and review within 14 days (May 12, 2006)..
2. lfrez.oning, by acting with due diligence in pursuit of said rezone and by obtaining same within 365
days ofthe date of the pre-application inquiry/review.
3, If rezoning, by engaging the services of a design professional to prepare and submit a Site
Development Plan (SDP) for Collier County Zoning and Land Developmenl personnel's review and approval
within 60 days of rezone approval;
4. If rezoning, upon approval ofSDP/SIP, by acting with due diligence to submit a complete and
sufficient appllcation for Collier County Building Pennits for all improvements for residential use of properties in
question within 60 days: of said approval;
5, If rezoning. by receiving all requ' ~<@eJ ilicates of Complelion wilhin 120 days of
issuance of the aforementioned Building pe l!V\.J N"
6., In the alternative, by obta. mplete and sufficie 'Co County Demolition Pennit within
90 days (July 28,2006) or within 10 d s abandoned pursuit ofrezo an or SDP/SIP, Whichever is
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7. If obtaining a demoli on sam-c a
permitted., additions, improvements use
rezone andlor SDP/SIP abandonme t;
&. That if rezoning, the cs
14 days (May 12, 2006), then there ;1
9. That if rewning, the R
365 days of the dale of the pre-applic .
that the violation continues past that d
10. That if rezoning, the Resp d
60 days of the rezone approval, then there ~Yl
past that date, ~.tiE eIR ~
11. That ifrezoning, the Respondents do no ' pilIagraph 4 of the Order of the Board within 60
days of the dale ofSDP/SIP approval, then Ihere will be a fine of $150 per day for each day that the violalion
continues pasllhal date.
12. That ifrezoning, the Respondents do not comply with paragraph 5 ofthe Order of the Board within
120 days of the date ofissuance of the Building Pennits, then there will be a fine ofSlSO per day for each day thaI
the violation continues past that dale.
13 ThaI il; in the alternative the Respondents eleet 10 obtain a demolition permit, they do nol comply
with paragraph 6 of the Order of the Board within 90 days (luly28, 2006), then there will be a fine of$150 per day
for each day that the violation conlinues pasllhat dale.
14. ThaI if, in the allemalive, the Respondeots elect 10 obtain a demolition penni~ they do not comply
with paragraph 7 ofthe Order of the Board within 180 days (October 28, 2006), then there will be a fme of$150
per day for each day that the violation continues past that date.
15. That the Respondents are to notifY Code Enforcement officials that the violation has been abated and
request the Investigator to come out and perf ann the site inspection.
16. That the Respondents are ordered 10 pay all opemtlonaI costs incurred in Ihe prosecution ofthis Case
in the amount of$354.16
f e Order of the Board within
. ation meeting is scheduled.
e Order of the Board within
01$150 per day for each day
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each day that the violation continues
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*** OR: 4033 PG: 2463 ***
Any aggrie\Led party may appeal a final order of the Board to the Circuit Court within thirty (30) days of
the execution of the Order appealed. An appeal shall nol be a hearing de novo. but shall be limited to appellate
review Df the record created within. Filing an Appeal shall not stay the Board's Order
DONE AND ORDERED this 501 day of 7l7a-. / 2006 at Collier County,
Florida ~
CODE ENFORCEMENT BOARD
COLUER COUNTY, FLORIDA
BY: -/L BnL #
Sheri Barnett, Chair
2800 North Horseshoe Drive
Naples, Florida 34104
STATEOFFLORlDA )
)SS:
COUNTY OF COLLIER)
T fOregoing instrument Was ae
2006, b her; Barnett, Chair of the Cod
personally known to me or
c/2~
t?7~~
Florid. Bar No, 75031 I
Attomey for lbe Cod. Enforceroent Board
400 Fifth A venue S" Ste. 300
Naples, Florida 34102
(239) 263-8206
Stale 01 f LORIUA
~UAty of COLLIER
I HEREBY CEflT1FHHAT thIs Is II tnIe and
correct coPy itU.1fo~en[ on file In
Board MIrMes',an"d'Recorlls of Collier County
W1T~sI.rriy. h n'li:~' .' 'cla seal thIs
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CODE ENFORCEMENT BOARD
COllIER COUNTY, FLORlDA
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BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY, FLORlDA,
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Petitioner,
CRB NO. 2006.18
vs,
Respondents
3835448 OR: 4033 PG: 2464
PJiCORDID in omClAt QCOeS of COLLlIs coum, rL
05/01/1006 at 11:01Al 011G8r I. BSOCI, CLlll
oem 17.00
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JERRY & KIMBERLEA BLOCKER,
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Retn:IIT8S0111C!
COLLIIl coum CODI 1II10iCIllll
SRIRLIJ I GARCIA
lBOO R 80RS!S80! OR COZS BLOG
ONS
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3.
THIS CAUSE came on for public hear' g
testimony under oath. received evid e.
Findings ofFacl, Conclusions of La . an Or
d the Board, having heard
atterst thereupon issues its
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espondents and that the
4. That the real property located al J 101 Alae okalae, FL, aIkIa "Shells rrailer Park," Folio
Number 63864760002. more particularly descnDed as lois 9 and 10, Block 48, Newmarkel Subdivision, as
recorded in Plat Book J, Pages 104 and 105, Public Records of Collier County, Florida is in violation of Collier
County Ordinance 04-41, the Collier County Land Development Code, as amended, sections 1.04.00, Sub. Sec's
1.04..0 I, par's A, B and C. and 1.04.05, sec. 1.05.00, sub sec. 1.05.01, par. F, sec. 2.02,00, sub. sec, 2.02.0 I, par. D,
and 2.02.03, sec 2.03.00, sub sec 2.03.03, par. A, sec. 2.04.00, sub, sec. 2.04.03, pg. LDC2:113, sec. 2.05.00, sub.
sec. 2,05.0 I. par. A, sec. 8.08.00, par's B and D, see. 9.03.00, sub. sec. 9.03.0 I, par. D and 1970 Zoning
RegulationlImmokalee Area Zoning District, Article IV, sec's 4.1, 4.2, 4.3 and 4.4, Article VI!, sec's 7.1 and 7.9
and Article X. sec. 10.1 I, I.e-3, par. 2 in the following particulars:
Unlawful and inappropriate development and residential use ofIndustrial zoned property (previously
zoned I-C-3) withoul prior Collier County Zoning and Building Permits. Perpetuating a use inconsistent with the
Collier County Growth Managemenl Pian -Immokalee Master Plan (GMP).
ORDER OF THE BOARD
Based upon the foregoing Findings of Facl and Conclusions of Law, and to the authority granted in
Chapter 162, Florida Statutes, and Collier County Ordinance No. 92-80, it is hereby ORDERED:
OR: 4033 PG: 2465
fhat the violations of Collier County Ordinance 04-4 J, the Collier County Land Development Code, as
amended,section, I 0400, Sub. See's I 0401, par's A, B and C, and I 0405, see i 0500, sub sec. I 0501, par F,
see 2.0200, sub.. see 202 0 I, par. D. and 2.0203, see 2 03.00, sub see 2 03,03, par. A, sec. 2.04.00, sub, sec.
2.04.03, pg. LDC2:113, see, 205.00, sub. see 2.0501, par. A, sec. 8 08 00, par's Band D, see, 90300, sub, see
9.0301, par. D and 1970 Zoning Regulationllmmokalee Area Z.oning District, Article IV, see', 4.142, 4.3 and 44,
Article Vl1, sec's 7.1 and 7_9 and Article X, see 10 II, J-C-3, par. 2 be corrected in the following manner:
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I. If the Respondents elect to rezone the property, by contacting the Collier County Zoning and Land
Dev~lopmen{ Department and scheduling a pre~application inquiry and review within 14 days (May n, 2006).
2. lfrezoning. by acting with due diligence in pursuit of said rezone and by obtaining same within 365
days of the date of the pre-application inquiry/review.
3. If rezoning, by engaging the services of a design professional to prepare and submit a Site
Development Plan (SDP) for Collier County Zoning and Land Development personnel's review and approval
within 60 days of rezone approval;
4. If rezoning, upon approval of SOP/SIP, by acting with due diligence to submit a complete and
sufficient application for ('.oilier County Building Pennits for all improvements for residential use of properties in
question within 60 days of said approval;
5. If rezoning, by receiving all requ' ~Ri<@e1 ificates of Completion within 120 day, of
issuance of the aforementioned Building Pc ;yl-1=-" !\f..
6 In the alternative, by obta' ~ mplete and ,ufficie Co County Demolition Pennit within
90 day, (July 28, 2006) or within 10 d, abandoned pur,uit ofrezo an r SDP/SIP, whichever i,
applicable;
7_ If obtaining a demoli on rmi. cu' same d by re aU non-approved, non.
pennitted, additions, improvements. use er 28, 2006) or 90 days after
rezone and/or SDP/SIP abandonme ~
8_ That if rezoning, the es
14 day' (May i2, 2006), then there 11
9. That if rezoning, the R
365 days of the date of the pre-applic' . quiry/review, then th
that the violation continues past thaI d v,,'
] o. That if rezoning, the Resp d
60 days of the rezone approval, then there ~
past that date ~ l:fB C~
II. That if rezoning, the Respondents do no ' paragraph 4 of the Order of the Board within 60
days of the date of SDP/SiP approval, then there will be a fine of $150 per day for eacb day that the viulation
continues past that date.
12, That if rezoning, the Respondeuts do not comply with paragraph 5 of the Order of the Board within
120 days of the date of issuance of the Building Permits, then there will be a fine of$150 per day fur each day thai
the viola.tion continues past that date.
i3. That it; in the allernat!ve the Respondents elect to obtain a demolition penni~ they do not comply
with paragraph 6 oflhe Order of the Board within 90 day' (July 28, 2006), then there will be a fine ofSI 50 per day
for each day that the violation continues past that date.
14, That if, in the aJlernative, the Respondents elect to obtain a demolition penni~ they do not comply
with paragraph 7 of the Order of the Board within 180 days (October 28. 20D6J, then there will be a fine of$150
per day for each day that the violation continues past that date.
15. That the Respondents are to notifY Code Enforcement officials that the violation has been abated and
request the Investigator to come out and perfonn the site inspection.
16. That the Respondents are ordered to pay all operational costs incurred in the prosecution of thi, Case
in the amount of $35416.
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*** OR: 4033 PG: 2466 ***
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Any aggrieved party may appeal a final order of the Board to the Circuil Court within thirty (30) days of
the execution of the Order appealed An appeal shaJJ not be a hearing d. novo, but shall be limited to appellate
review of the record created within Filing an Appeal shall not stay the Board's Order.
DONE AND ORDERED thiS,self day Of~. 2006 at Collier County, Florida,
CODE ENFORCEMENT BOARD
COLLlER30UNTY, FLORIDA, ~
BY, 1L &d
Sheri Barnett, Chair
2800 North Horseshoe Drive
Naples, Florida 341 04
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STATE OF FLORIDA )
)SS:
COUNTY OF COLLlER)
Th "regoing instrument was Be
2006, b eri Barnett, Chair of the Cod
personally known to me or
,
,
State 01 f LORllJA
~URty of COlLIER
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COLLIER COUI"IY LAh!D DEVELOPMENT CODE
203.07 A.5. 2.03.07 A.B.
5. Main Strae~ Olferfey Subdistrict. Special conditions for the properties identified in the
!mmokalee Area. Mester Plan; referenced on Map 7; and further idemmed by the designation
oh~SOSD' on ihe applioable offioial Collier County Zoning Atlas h~eps. The purpose of this
designation is to ent:oui-age development aIid redevelopmerii"by enhancing and b~autifYjng
t..'1e dOVllfltown Main Street ar-ea through flexible design and development standards.
f.'iAIN STReet OVERLA\' SUBDISTRICT
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Mep 7 Main Street Overlay Suodislriol
6. Nonconforming Mobile Home Park Overlay Subdistrict Establishmenl of speoial conditions
lor lhasa properties which by virtue of aotions preceding the adoption of Ordinance No.
91-' 02, on Ootober 30, 1991, were deemed 10 be nonoonformlng as a resuit of inoonsis-
lenoies with the land development oode, and are looaled within the Immokalea Urban
Boundary as depicjed on the Immokalea Area Master Plan.
a.
Purpose and intent The purpose of these provisions is to recognize that there are
nonconforming mobile home parks in the ImmokaJee Urban Area,. to provide
incentives to upgrade thes2 parks while requiring the eliminatiDn of substandard
units, and to allDw park ovmers to take advantage ot alternative development
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LDC2:44
EXHIBIT
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ZONING DISTRICTS AND USES
2.03.07 A.5.
standards in order to causa some upgrading of conditions that wDuld normally be
required of cDnforming mobile home paries. Travel trailers, regardless of the square
footage, are not pennitl.ed as a permanent habitable structure.
b.
Re;quirad site improvemenl plan appUcation.. The property owners of all nonconform8
ing mobne home developments/parks thEI were In existenoe before November 13,
1991, Le., thaI predale Ordinanoe No. 91-102, the land development code, shall be
required \0 submit a site improvement plan (SIP) meeting the slandards set forJ1
below by January 9, 2003 or thereafter wilhin the time frame sel forth in an order of
the Code Enforcement Board flnding e violation of this section, or by the date set forth
in a Compliance or Settlement Agreemsnt entered into between Collier County and
a properly owner acknowledging such a violation and also eslablishing the date by
whioh such violation will be cured through Ihe SIP submiltal prooess set forth below.
c.
The site improvement plan (StP) master plan shall Illustrate the way existing
buildings are lald out and the infrastructurE (Le. utilities, strEets, drEinage, land-
soeplng, parking and the like) to serve those buildings. The number and looatlon of
buildings shall be reviewed for consistency with Code requiraments (i.e. setbaoks,
space between buildings, density, and the like). Similarly, the SIP shall serve to
provide a basis for obtaining approval of required infrastructure improvements such
as those referEnced herEin. The approved SIP showing all of the above shall become
the offioial record acknowledging the legal use of the property. Failure to inltiale this
process within the time frames set forth above, will resuli in e Code violation in which
the property owner will be required to immediately remove ajl mobile homes which
have nol received a building permi! and all mobile homes deemed to be unsafe and
unfit for human habitation, and otherwise contrary to the county's housing code
unless otherwise prohibITed by stete law.
d.
For the specific requirements concerning the SIP submission referenced in band c.
above, see Section 10.02.05 F. of this Code,
SL/pp.. No.1
LDC2:44.1
JONES
FOSTER
JOHNSTON
& STUBBS, PA
Attorneys and Counselors
Margaret L. Cooper
Direct Dial: 561-650-0464
Direct Fax: 56 \ -650-0422
E-Mail: mcooper@jones-fosteLCom
Flagler Center Tower. Suite] 100
505 South Flagler Dri\!e
West Palm Beach, Florida 33401
Telephone (561) 659-3000
Me/fling Address
Post Office Box 3475
West Palm Beach, Florida 33402-3475
May 6,2011
Via E-Mail
Collier County Board of County C01ID11issioners
3301 East Tamiami Trail
Naples, Florida 34112
A TIN,: Commissioner DOlma Fiala
Commissioner Georgia A Hiller, Esquire
Commissioner Tom Henning
Commissioner Fred W, Coyle
Commissioner Jim Coletta
Re: Blocker Mobile Home Park
1101 Alachua Street, Immokalee, Florida
Lots 6, 7, 9,9 and 10, Newmarket Subdivision
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Dear Commissioners:
Jerry Blocker has asked me to review the April 13, 2011 Board of County Commissioners'
("BCC") meeting where he and his property were discussed without notice to him. I was
strrprised to hear the misinfOlwation which stood uncorrected by staff. Most of what was said at
the meeting was out-and-out wrong, The Blockers would like the opportunity to appear before
the BCC to conect this publicly disseminated misinformation and to discuss their Site
Development Plan ("SIP") application, They hope that you will take the time to actually look at
the documents, listen to their witnesses, and discover the truth, They wish to address and correct
the record as to the following issues:
(I) Alleged "slum" conditions, junkyard, and attempts by the County to get the
Blockers to clean it up;
(2) The Blockers' alleged refusal to comply with Code Enforcement Board ("CEB")
orders or to earlier apply for SIP grandfathering; and
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(3) Alleged illegal mobile home park in violation of zoning"
Alleged Slum Conditions
The Blockers were accused of being "slum lords," To the contrary, the Blockers bought the
mobile home park in late 2002, It was in poor shape at the time, Their predecessor (the Collins)
had received a Notice of Violation for conditions from the County Code Enforcement After
their purchase, the Blockers cleaned up and improved the Park, They have received clean and
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Collier County Board of County Commissioners
May 6, 2011
Page 2
satisfactory inspections from the County and Florida Department of Health, The facility is
licensed as a migrant labor camp facility in good standing, (Mf, Blocker will bring photographs
and all of the State inspection records.) The County did not prosecute the Collins and dropped
the earlier conditions NOV after the Blockers' cleanup.
The Blockers have never received a conditions violation notice from Collier County. Rather,
four years after their purchase, they were cited for an alleged zoning issue - not conditions, In
fact, in the transcript from the Code Enforcement Board zoning proceedings, the CEB officer
states:
At the same time the housing that we have seen in photographs shouldn't be
confused with some of the houses we've seen in the newspapers in other areas
because it certainly looks better than that. , , (Tr. 4/27/06 p, 98)
. . .
It's a zoning matter ill1d that's how it really is focused, , , (Tr. 4/27/06 p, 92)
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The Blockers believe that County staff may have circulated photographs of the Park before the
Blockers' cleanup and others taken after a hurricane, It is not a "slum" and the Blockers are not
"slumlords," They provide necessary and affordable housing for migrant laborers, are fully
licensed by the State of Florida, and have been approved by the Depilltment of Health,
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If there are any CUlTent minor conditions issues, these will be addressed and corrected as part of
the SIP process or the Blockers will be happy to address any particular issues with staff or the
Department of Health,
Encroachment Into Alleged Junkyard
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Staff has promulgated misinformation that the Pill'k encroaches into a junkyard, This is wrong.
The Blockers will bring their surveys to prove this.
The Park predates the junkyard by many, mill1Y years, I have been told that the junkyard is ill1
illegal use against which the County has taken no enforcement action The junkyard and
industrial uses developed ill'ound the Park, not the other way around.
An old 80-foot wide public ROW easement (now vacated at the request of the Blockers) used to
exist adjacent to the Park and the junkyard, The junkyard spilled over into all eighty feet of the
easement. The County refused to do anything about it. The Blockers were instrumental in
working with the State Department of Environmental Protection (DEP) and seeing that the
easement area was cleaned up, which is now a buffer to the junkyard. They can address details
directly with you if you give them an opportunity to be heard, They Cill1 also address a potential
physical buffer as part of the SIP process,
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May 6, 2011
Page 3
Blockers' Alleged Refusal to Apply for SIP
The SIP code procedure provides for enhanced grandfathering by allowing replacement of
destroyed or unsafe units, and to keep units which exist without a permit on record, in exchange
for upgrades of nonconforming mobile home parks, This is different than the LDC standard
grandfathering provision which does not allow continuation or replacement of destroyed, unsafe
units, or units without permits, but does allow continued use of now nonconforming uses which
were originally permitted, See the current LDC (Sec. 9.03.00 Nonconformities).l
The Inmlokalee Area Overlay in Land Development Code (LDC) Sec. 2,03,07 G,6, allows SIP
grandfathering in one of three ways:
(1) Voluntary submittal before January 9,2003;
(2) Order of the CEB (no time limit); or
(3) Compliance or settlement agreement with Collier County (no time limit),
When the Blockers bought the Park in late 2002, they were told by staff that they were
grand fathered under the general LDC grandfather provisions which allows continued use of
mobile home parks previously authorized under older codes - and have been told this by other
staff subsequently, They were told that they did not have to do the SIP procedure unless they
wanted the additional upgraded grandfathering, They did not voluntarily submit for SIP by
January 9, 2003,
Please note, the Blockers predecessors (the Collins) were offered the SIP as part of their NOV.
Years later, Director of Zoning and Land Development Susan Murray supposedly took a contrary
position that the County would not offer SIP to nonconforming parks without a change of zoning
to residential. There is nothing in Section 2,03.07 G.6 which supports this interpretation.
The County cited the Blockers with a zoning violation in 2006 and refused to offer them SIP to
grandfather _ presumably, based on Susan Murray's new position/interpretation. TIle CEB
Order says either rezone or tear down,
The Blockers have made the following attempts to try to comply with the CEB Order to rezone
and/or to grandfather under the SIP over the last five years,
1, Jerry Blocker had pre-application meetings with staff early on to discuss a zoning
change, This was not allowed without a growth management plan amendment, Patrick White,
Jen)' Blocker and Fred Thomas have all worked diligently with staff and various boards to try to
get a Growth Management Plan ("GMP") amendment (part of the Immokalee Area Master Plan
I The 1965 Code (See, XB), the 1970 Code (Alt. VB), and the 1991 LDC (Div. 1.8) all provide for continuation of
nonconformities, The only exception is in the 1970 Code which calls for a one year sunsetting a nonconforming
mobile home used for storage and "not for ~ Jl1i ~ principal structure," Obviously, that is inapplicable.
Collier County Board of County Commissioners
May 6, 2011
Page 4
(lAMP) process) to allow a zoning change to keep the Park as ordered by the CEB. As you
Imow, all their efforts have been flatly rejected.
2, Since 2006, Patrick White dealt with a variety of staff working on the ROW
easement area cleanup which would further qualify the Park for the Immokalee SIP process, He
was told by staff that it was a waste of time to formally apply for SIP because the County
Attorney and/or Susan MUlTay would not allow it. He will testify to his efforts,
3, On November 14,2007, Mr. White filed a formal motion before the CEB to allow
the SIP authorized by the LDC The County Attorney fought it and told the CEB there was a
"lack of jurisdiction" because of the Blockers' appeal of the earlier CEB proceedings, The
County Attorney also parroted Susan Murray that SIP would not be allowed absent a change of
zoning to make the Park "conforming," The motion to allow the SIP, however, was wrongly
denied by the CEB based solely on "lack of jurisdiction" (1 will provide you with the
transcri pt.)
4, For at least two or three years, the Blockers have made a variety of proposals to
the COllilty Attorney's office to allow a settlement with the Blockers doing the SIP, I was not
allowed an opportunity to present the proposal to the BCe. When the proposal was given to the
BCC for consideration, it was done in a "shade" session, I do not know what spin was put on it,
1 but the BCC refi.lsed to allow SIP for the Blockers and insisted the property be returned to
industrial in a year and pay one-half of the then accrued fines,
5, The Blockers hired an engineer, Gina R. Green, to make a formal SIP application
to County staff (outside of any overall settlement of the fines) in the same maImer that others
have been allowed, Nonconforming parks in commercial and industrial zones have received SIP
,; approvals from staff in the last few years, At the SIP pre-application meeting, the Blockers and
"
ill Ms, Green were informed that the SIP met all requirements, but the litigation county attorney
had to review everything, Thereafter, staff refused to accept the application, stating that the
litigation county attorney told them not to accept it. Litigation counsel refuses to tell Ms, Green
why the County refuses except that Susan Murray allegedly ruled that zoning does not allow it.
Public document requests have been made for this ruling, Now, the Blockers are being told there
are no such rulings from Ms, Murray, Ms, Green will testify to her efforts and bring her
documentary proof
6, Now that the CEB appeal is completed and the CEB theoretically has
"jurisdiction" again, the Blockers have filed a formal application for SIP before the CEB, We
are requesting a hearing on this in an effort to improve the site consistent with the LDe.
Alleged Illegality vs. Nonconformity
It is true that the Blockers' Park is in a current Industrial zone, This makes it nonconfolming,
not illegal. The Park has been there for 50+ years, It was legal and conforming as far back as
when it was first constructed, Trailer parks, camps and transient facilities (labor camps) were
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Collier County Board of County Commissioners
May 6,2011
Page 5
lawful uses from 1965 to 1991, Webster's dictionary defines a trailer camp or park to include a
mobile home park as follows:
trail er park noun
Definition of TRAILER PARK
: an area equipped to accommodate D10bile homes
_ called also trailer camp, trailer court
See trailer park defined for English-language
learners
First Known Use of Trailer Park 1942
Here is the actual zoning history, The Blockers will provide copies of these code
provisions at your meeting.
1952-1965 No Zoning Laws Proven - Any Construction Allowed
.
Pre-1952: No zoning rules nor map had been adopted by the County,
Neither mobile home parks nor labor camp facilities were prohibited,
.
1952: County Zoning Map dated 1952 was adopted, Map and regulations
have been lost by the Coun'ty. County is unable to establish with any
degree of specificity or reliable assurance what the zoning was or what
uses were prohibited, Presumably; the use was legal at the time and there
is no proof it was not,
1965-1991 Labor/TI-ansient Residential Facilities Lawful
1965-91 Zoning Text
1965: The 1965 Zoning Code adopted, This contains a grandfather
provision for earlier uses. (p, 41) The classification I-C-l [Inunokalee,
Commercial I] allows residential "tourist can1ps," "trailer camps" and
"bungalow courts," (p, 32) Under the hierarchal zoning structure,
COllli11ercial-light industrial (I-C-3) and Industrial (I) also include these
lesser intense uses. (pp, 34, 35, 36)
. 1970: Immokalee Area Zoning Ordinance adopted. The I-C-3 and I
districts allow residential "transient facilities," i,e_, trailer camp facilities
for migrant laborers, No prohibition on mobile home construction. There
is also a grandfatl1er provision for trailer camps. (pp, 20, 21, 43)
Collier County Board of County Commissioners
May 6,2011
Page 6
1965-91 Zoning Maps
1972: All earlier zoning maps (witb tbe exception of tbat date "1952,"
which we have a copy of) had been lost by tbe County, Tbe 1972 zoning
map indicated C-3 (Commercial Zoning) for the Park Trailer camp and
bungalow court is lawful under tbe 1965 Code.
1976: Zoning map changes designation of Subject Property to "]," Use is
lawful under the 1970 Code as a "transient facility." Migrant labor camp
was lawful under the 1976 code.
1991 Vested Rights
1991: Adoption of 1991 Countywide, unified LDC. Eliminates hierarchal
zoning, Prohibits residential facilities in an "I" zone, but contains a
nonconforming use provisions for continuation of vested uses as a trailer
camp and transient facility. Park fully developed,
2002 SIP Procedures
S
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2002: Amendment to LDC adding the Irnmokalee Overlay District for "all
nonconforming" mobile home parks, This new regulation, like that in
many counties dealing with travel trailer and mobile home parks, allowed
a procedure to cure "all" nonconfonnities as an incentive to provide basic
site plans and upgrade and replace illegal or unsafe mobile home units, (p,
2:44)
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Current Code
2004 Adoption of 2004 Land Development Code, This contains a
nonconforming use (grandfather) provision similar to the 1991 LDC.
Permitting
The County contends that the Park is "illegal" because the Blockers cannot produce all tbe old
building permits, To the contrary, it is the County's responsibility to maintain those old records,
The County has lost its old permitting files2
, 1 am sure that the COW1ty has lost the permit records for tbe vast majority of old buildings. Are
these owners required to dear down their structures?
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Collier COUl1ty Board of County Commissioners
May 6, 2011
Page 7
The Blockers, however, have found evidence of many, many permits for the Park, which they
will provide to you, These are as follows:
. Collier County Property Appraiser Cards indicating structures built as early as 1948,
1950's, 1960's and thereafter. These also note lawful "residential use" in a
"commercial area," referring to "pp, 24-25 in Immoka1ee Zoning Regulations" (See
Cards 638646800013, 638647200001,)
. 1963
Application for building permit to build a CBS residential structure,
. 1963
Application for a pem1it for an addition to a residential structure.
. 1967
Application for alteration for kitchen and carport addition to a residential
structure (Permit No, 67-739).
. 1968
Final inspection report (Permit No, 67-759).
. 1985
Building permit to replace a mobile home (Permit No, 1-85-362).
. 1985
Celiificate of Occupancy for a mobile home,
. 1985
Building permit for a new mobile home (Permit No. 1-85-363).
. 1985
Certificate of Occupancy for a mobile home (Permit No. 1-85-362),
. 1985
Building permit for residential mobile home (Permit No. 1-85-36).
. 1990
Permit Application for screen enclosure for family room (Permit No,
900009126).
1 understand that staff now claims that the permits over the past 25 years were all a big mistake,
notwithstanding that the old codes clearly allowed residential trailer campS and transient labor
facilities. There is no evidence to support staff s unwarranted assertion, and only a Building
Official can lawfully invalidate such pennits,
CEB Did Not Rule on Grandfathering
The CEB did not address grandfathering Ul1der the LDC provisions. Rather, the prosecuting
county attorney told them that they could not consider grandfathering under the LDC and they
had to only rule on current code,
The following is what appears in the CEB transcripts:
CHAIRMAN BARNETT: Can the county attorney help me here? 1 find a
sticky wicket here in one respect because-
Collier County Board of County Commissioners
May 6, 2011
Page 8
MR. GRIFFIN: 1 appreciate what you're saying, Steve Griffin with the
County Attorney's Office,
. . .
. . . I think this case boils down to zoning. The zoning is the zoning.
And either it's right or it's wrong for these gentlemen. And I think in this
particular situation it sounds like it's not residential.
. . .
I'm not sure that anybody's offered any evidence that it ever was
residential. And they have a process they can go through to maybe try to
make this right, but it's not this board. It's the Board of Zoning Appeals or
somebody else, but it's certainly not this board.
(Tr. 4/27/06 P 79)
. . .
a
MR. PONTE: If you really want to discuss it, we have a bit of a
conundrum because one of the recommendations was possibly rezoning but that
doesn't seem very likely. The big question, of course, is the one we've heard
before today in another case and that's grandfathering, what existed, what
was there, what attention do we pay to it, if any. The attorney for the county
has said it really isn't this board's consideration right now. It's a zoning
matter and that's how it really is focused, So 1 suppose that you could find a
violation.
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(Tr. 4/27/06 p. 92)
The Chair specifically questioned the county attorney on estoppel, asking "What protection
does anybody have if they have a permit?" The county attorney reiterated his legal advice that
estoppel could not be considered (Tr. 4/27/06 p. 93) Finally, the CEB again ruled that they
would not consider estoppel and would not even look at the old codes - but would decide the
case on the 1991 LDC. The CEB stated that:
We don't issue zoning variances., , Again I think we decide that based on
current code, by the way, not based on past code.
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Collier County Board of County Commissioners
May 6, 2011
Page 9
Conclusion
Please think about this from the Blockers' point of view:
. They paid good money for a Park that has been there 50+ years,
. They paid good money to take care of the earlier condition issues caused by the
Collins,
. The general LDC calls for grandfathering for all units previously previously
pen11itted. Due to loss of the County records, it is unknown which ones do not have
permits,
. The SIP grand fathering procedure for "all nonconforming rnobile home parks"
(including units not permitted) is in your code, Others in commercial zones have
been allowed this, SIP was previously offered to the Collins. What is the rationale
for not offering it to the Blockers?
. The Blockers paid good money and hired lawyers and engineers to make the SIP
application, They are willing to do all necessary upgrades,
. The Blockers have tried for five years to comply with the CEB order to either obtain
proper comprehensive plan land use or designation to support a rezone. The lAMP
has yet to be adopted to allow any possible use change for "residential." They have
also tried to get SIP approval and have been rejected for no good reason other than an
alleged Susan Murray's change of interpretation that they need a zoning change
(which the County refuses to do).
. Although zoning allows industrial, there is no infrastructure there to support industrial
use, It is not practical to convert to industrial use at the present time,
. There is a current need for migrant farm labor housing in ImlTIokalee.
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Collier County Board of County Commissioners
May 6, 2011
Page 10
Request
The Blockers request that the BCC hear the Blockers and either (1) direct staff to accept and
process their SIP application, including bringing the conditions up to applicable standards, or (2)
direct the CEB to accept and consider the SIP application, including bringing the conditions up
to applicable standards,
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, PA
B~J4~
Margaret L, Cooper
MLC:lsm
cc: Jerry B. Blocker (via e-mail)
Jeff Klatzkow, County Attomey (via e-mail)
p :\docs\2 5239\0000 1 \Itr\ I am8862.doc
bee re correcting misinformation
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Collier County Board of County Commissioners
May 6, 2011
Page 11
bcc: Tim Hancock
Patrick White, Esquire
Randy Johns
Chris Lascano
p:\docs\25239\OOOOI \ltr\l a1ll8862 doc
bee re correcting l1lisinformatio
JONES
FOSTER
JOHNSTON
& STUBBS, P.A
Attorneys and Counselors
Margaret L. Cooper
Direct Dial: 56] .650-0464
Direct Fax: 56] -650-0422
E-Mail: mcooper(q)jones-foster,COlll
Flagler Center Tower, Suite 1100
505 South Flagler Dnve
West Palm Beach, Flonda :;3401
Telephone 15(1) 659-3000
Moiling Address
Post Oft1ce Box 3475
West Palm Beach, Florida 33402-3475
May 20, 2011
Via E-Mail
Collier County Board of County Commissioners
3301 East Tamiami Trail
Naples, Florida 34112
ATTN,: Commissioner Donna Fiala
Commissioner Georgia A. Hiller, Esquire
Commissioner Tom Helming
Commissioner Fred W. Coyle
Commissioner Jim Coletta
Re:
Blocker Mobile Home Park
1101 Alachua Street, Immokalee, Florida
Lots 6, 7, 9, 9 and 10, Newmarket Subdivision
Our File No. 25239-1
t
Dear Commissioners:
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At the last meeting of the Board of County Commissioners, you were advised that neither the
BCC nor the Code Enforcement Board has the authority to consider the Blocker's SIP
application. Moreover, I understand you were advised that the County cannot enter into a
settlement agreement with the Blockers to allow the SIP application, Although I was not given
notice that this was going to be discussed, I have some comments, as I believe that the advice
given is incorrect.
The premise for the advice that the Blockers cannot apply for an SIP is an assertion that the
mobile home park referenced above was always "illegal". That is wrong, This erroneous
conclusion is based on a change of interpretation of the old codes made by Susan Murray a few
years ago, Quite frankly. the current interpretation of the old codes by either the County attorney
or SUSaJ1 Murray is irrelevant The thing that COW1tS is how the County interpreted these old
codes and applied them during the 1960s through 1991. As you know, changing interpretations
years later of old codes, after improvements were permitted, is not permissible,
From 1965 through 199 I, the County allowed mobile home parks for transient labor in the
ImlTIokalee C-I through I districts, The 1965 code specifically allowed "trailer camps/courts
constructed and operated pursuant to regulations prescribed by the Department of Health" (to
wit, migrant laborer trailer camps). Included in these zones were "bungalow courts", "cabin
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Collier County Board of County Commissioners
May 20, 2011
Page 2
camps" or "camps", All of these uses were bundled together in the 1970 Immokalee Area
Zoning District code under the label "transient lodging facilities," which included facilities for
migrant laborers, There was no prohibition whatsoever on the use of mobile home construction
for transient lodging facilities, The County so interpreted and applied the codes from 1960
through 1991. Not only was this interpretation applied to the Blockers' property, but it was
applied to all of the commercial districts throughout the Immokalee area, Please ask your staff
how many other mobile home parks exist in the commercial districts in Immokalee, It was only
after 1991 _ and the new LDC _ that mobile home construction and transient lodging facilities
were no longer permitted in the commercial industrial zones, The old uses, however, are lawful
non-conforming uses,
Once again, it is irrelevant as to how Susan Murray, litigation counsel, or the County Attorney is
currently interpreting the old codes, They were not working at the County at that time, What is
important is how the old codes were interpreted by the old staff The County is estopped from
changing interpretations,
Also, the Blocker's predecessor in title (the Collins) were offered use of the SIP procedure,
What has changed other than Susan Murray's change of interpretation? What is the logical or
rational reason for not offering the same to the Blockers or even considering their application?
Next, you are being told that the BCC does not have authority to make overall settlement with
the Blockers, That, too, is wrong, Specifically, the Immokalee Overlay District regulations
provide, in Section 2,03,07 A,6,b" that the SIP can be granted pursuant to "settlement
agreement" between the County and a property owner. Moreover, the Blockers have served
notice of a potential Bert Harris claim, The Bert Harris Act is a wonderful opportunity for the
County to actually sit down, talk, and come to a settlement, There are broad powers in Section
70,OOl(4)(c) which provide that the County can settle with:
L An adjustment ofland development, , ' or use of land,
2, Increases or modifications in the density, intensity, or use of areas of
development.
These provisions give the County immense power to settle on any terms that are deemed
appropriate,
Further, it does not matter what the Growth Management Plan (GMP) now states, A use that
was preexisting or which predates the adoption of the GMP or amendments thereto is allowed to
continue in existence under Chapter 163 of the Florida Statutes, Your own codes also provide
for that. See Section 9,03,00 Nonconforrnities, There is absolutely nothing in Chapter 163
which requires the teardown of a pre-existing facility, Comprehensive land use plans deal with
Collier County Board of County Commissioners
May 20,2011
Page 3
future development of property and future zomng, not requmng the elimination of !! prior
existing use.
I never tell clients that they absolutely will win a disputed case, Judges are human and do make
mistakes. I find it unsettling that you are being told, with 100% certainty, that the mobile home
use must be eliminated and that you must foreclose on this property.
Once again, I request an opportunity to present the Blocker's SIP application before either the
Commission or the Code Enforcement Board by either a general SIP application or a settlement
agreement.
Thank you,
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, PA
By/till ("~~
MargaretV Cooper
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