Loading...
Backup 04/20/2011 'vJ). NLf'I-< ~ N. )\J e lcs I,v~ 1{J/ I{ It A APRIL 20, 2011 Public ~ '/v'u ............ L4 ~ c: t(/"....u E-mail I Affiliation '-~e"'1 ; x flJ-.5oL -y~ l31(}C/{l~ ~b/6ctot R/hv t?Y {;to~\I~" fJlI&/'e~ N- (~b{) (\ /, /f)+a~5 L HAY1I\61e;12-- ~ '~r . )\- J~.~'(; \J\\'W~')b't^,l\\; -r;;VY (OfL,E \ \j~7tJ\ S\'\L\ ~~)\ I ,J( pfV) e 0 -rCef\!" \-1:l. \/' \t \ tfi /v /0 I L~7 ~. Ov:~ . " =>l ,"- '-' ~x " .:.: v\ <D~;~, S, f'J o. v-<- ~l . A{tu~ L tJe-e~ \J f\. \.E'(Lijc B \i~(... \f \ ( \O{ '\ (A G\( 'MfAl J g .J N /jI ~. !14 J2 v /' .C.: /) q /( 7 If /L~ ,/;/ 7 ::JyFJ1 JJ/k#g?' / I tJ()~" c ~ - , o \...uJc"Z \jJ\e''t'/f'fZ^ ~ <ie. '\ Phone #I 271.- 'S'fC-i/t ( (;>51-dd-7~ o'S bfo '-'/5-' OCltl D <2 It I ( 2)-1'\-1..-\''3.\.\-''404 Cj () (j ----J 0'2 Q L- ~ -, - <;'DS-- I 'S :>~ I .2 :j ff- ~J-)? I -:2 5r~ {/ '""/ ~i';ul' 2 . ." / ~ - ,~::Cp / APRIL 20, 20t 1 ~ f)'\()( It.. (Ct{yCt&" )vi ~ t2 t.flo<lV ) i'-{. !~Att ~ <' PubUc E-mail I Affiliation Phone 1# <.:> S~:) - ~7€:t s-' ~ ( II c.5Y"-- c...u \..:) 2-C3 _pJ.41 "' c ~~ II \ e.-r C~ ,~.l, \ f'D .tz 'f?Z ' 2,-<1 c::.) 'b ? ";01 ~ C, 51 .- 2111 5; ~ . cf'/'.z! APRIL 20, 2011 Public~ vnC\cl ~~ :PI, c5't\t .::fd ~ ~l 1IiII. Sl'W "II?'") tY / /eAL,;, Q 'LA {/qw/P,y fcAv~J Jv\ (' J!.~ )/ .eOlYl ~?:/1 '3701 /J 1 A:::. /P ~J Y (j <) 1/}r7I:Z~P (~'" ~ (. ~ ,. ._ .0. '... April 20, 2011 Ladies and Gentlemen of the CRA Board, As members of the Collier County Community, we have the right and expectation to be treated equally by all levels of our government, but it is my belief that Jerry Blocker's property rights have been violated. In 2002, Mr. Blocker entered into an agreement with Mr. & Mrs. Collins to purchase Shell's Trailer Park in Immokalee. At which time he did his due diligence and meant with Michelle Arnold, the head of code enforcement, to discuss the industrial zoning of this property. At which time, Mrs. Arnold explained that the property fit into the grandfather provision of the law but with the understanding that the mobile home park could remain as is but when anyone of the mobile homes was destroyed beyond 50% by fire, hurricane, or accident it could not be replaced, nor could the park ever be expanded. Mr. Blocker accepted these terms and finalized the purchase of the property. Keep in mind that this mobile home park has been in the same location since the 1950's, before zoning classification was even initiated. In 2006, Mr. Blocker was issued a new citation for the same issue he discussed with Mrs. Arnold and he was given only one option to correct: demolition of the trailers. At which time, Mr. Blocker was informed of a 2001 citation for the same infraction concerning the industrial zoning of the park against the former property owners. They were given the option to correct the violation by obtaining a Site Improvement Plan and repairing, removing, and replacing units not meeting inspection requirements. As of this month the first citation is still active and therefore Mr. Blocker should have had the same option to correct the violation that was given to Mr. and Mrs. Collins in 2001. In addition, Mr. Blocker would have corrected the problem when he purchased the property if he had not been told by county staff that his property was grandfathered in and could remain as is without changes being made. Please review both citations. With denial of the SIP option on several occasions by county staff, Mr. Blocker has been forced to take legal action in an attempt to receive equal property rights. The courts have declared his property a non-conforming rental property, which by definition makes his property perfect for the SIP program. Please see the SIP Program for details. In addition, the current Land Development Code, as it is written today, allows existing mobile home parks to use the SIP to become compliant if you are classified as either an illegal or legal non-conforming mobile home park and the county once even offered a monetary grant to assist in compliance; therefore, Mr. Blocker should have had the right to participate in the SIP program all these years regardless of the master plan for Immokalee. In agreement with court documentation, Bob Mulhire has offered a professional opinion supporting the classification of this property as non-conforming with inherited land rights. .. We are also concerned that having a code enforcement officer on the current CRA board contaminates this particular issue because he has personally recommended removal of certain wording in the master plan to prevent Mr. Blocker from becoming compliant. Therefore, we ask you to carefully examine the relevant issues at hand and keep section 6.1.7 in the master plan but remove the reference to "residential development" in paragraphs Band C. By doing so, you will give all mobile home parks the same property rights. Immokalee is a working class community and Mr. Blocker provides housing for many farm workers. This property has been certified by the State of Florida and Collier County as a Migrant Camp and has Inspections every 6 weeks to ensure that safety guidelines are meant. Demolition of the mobile homes will put dozens of individuals and families on the streets. So long as Mr. Blocker provides adequate accommodations for his tenants and follows all guidelines set forth by the state, he should be given the opportunity to make his property compliant through the SIP program. Certain county staff and planning commissioners support this change and it is our hope that you will as well. In closing, Mr. Blocker's citation was never given a county staff recommendation, but was moved directly to the code enforcement board where they started fining him $450.00 per day. The penalty now exceeds $300,000.00 and the county has started foreclosure proceedings. Regardless of how anyone feels about the Blocker family, it is important to keep a clear mind when examining the facts of this case. This is about a man who bought a property that was grandfathered in as a mobile home park in an industrial zone, but then was told years later that he was in violation of county codes and that his only option was the demolition of all buildings. Demolition is not a viable option because other mobile home parks/units and the previous property owners were given 3 options: obtain a Site Improvement plan and pass inspections, rezone the property, or use it for industrial purposes only. Since 2006, Mr. Blocker has tried to utilize the SIP option, but has been denied again and again. So we turn to you, an advisory council to the Board of County Commissioners, to right this wrong. If you have any questions regarding the truth of the facts presented, we have minutes of meetings and video of all declarations made today. So please recommend the change to 6.1.7 Band C, as opposed to the entire removal of section 6.1.7, so that we can see the master plan continue to move forward rather than be shelved and prove that this government agency is focused on protecting the rights of property owners and ensuring equality to all. Sincerely, Randy Johns "'. -.. .' . Ik'0l Q-. Q. :J. - 50bl11-(~d by 'R.CAn cl Lj Jone~ r"'9~ d?C",lY1E'11b . b.L Subml~ \ vvm ? ubl \c reco'lcJs ------------ / , l' , COLLIER COUNTY, FWRIDA . NOTICE ()F ORD~ANCE VIOLATION AND ORDER TO CORRECT TO: Larry L. & Wanda Collins Sr. 101 Highview Ave. Lehigh A~res, FL. 33936 LOCATION OF VIOLATION (LEGAL AND ADDRESS) WITHlN COlLIER COUNTY ZON)NG DIST. INDUSTRIAL SEC. 34 TWN.46 RNG. 29 SUBD. New Market BLK.# 48 LOT#. 8 PARCEL# OF COlLffiR COUNTY COUNTY RECORD. PROPERTY ID# 63864720000 J;lUD# ,TRACT# , UNIT# ,SDP#, OR898 PAGE 414 OR PAGE A.K.A.(Address) 1123 Alachua St. Immokalee, FL -"""- Unincorporated Collier County NOTICE PURSUANT TO COLLffiR COUNTY CODE ENFORCEMENT BOARD (CE.B.) ORD #92-80 and 97.35, AS AMENDED, YOU ARE NOTIFIED THAT A VIOLATION(S) OF THE FOLLOWING. COLLm~ COUNTY ORD.(S) AND/OR P.U.D. REGULATION(S) EXISTS AT THE ABOVE DESCRIBED LOCATION. ORD(S) 91-102 Sec. 1.5.6., 2.2.16.1., 2.2.16.2" 2.2.16.2.1, ORD(S) 89.06 Sec. 5 ORD(S) 95-19 Plumbing Code ORD(S) 98-77 Electrical Code DESCRIPTION OF CONDITIONS CONSTITUTING THE VIOLA TION(S). DID WITNESS ON FOLLOWING DATE: Oct.22,2001 Site built structures are in need of repair as per attached C.C. BuUd~g Inspection Report. Mobile homes illegally situated on land designated for Industrial use. " INQUIRIES AND COMMENTS SHOUlD BBDIRECI'BD TO COPB BNFORCEMENT INVESTIGATOR: Bvelyn Claudio I06S.lstSt. Immokalee,FL34142-3900 (941)657-2525 FAX: (941) 657-3837 -_._~ - - VIOLATION STATUS:. -L-INlTIAL _RECURRING _REPEAT ORDER TO CORRECT VIOLATION(S) : YOU ARE DrnECTED BY TIUS NOTICE TO TAKE THE FOLLOWING CORRECTIVE ACTION(S) 1. Obtain a Site Improvement Plan as part of the ImP and repair, remove, or replac~ the units according to inspection reports (only as part. of the IfilP/SlP Program). All units below standards should be vacated. 2. OR Rezone property and repair, replace, or remove substandard units. 3. OR Use 'property according to present zoning which is Industrial. ON OR BEFORE: 11-6-2001 PENALTIES .MA Y BE IMPOSED: Failure to correct tJle' violations on or before the date specified above will result in, 1) the filing of an affidavit of violation with the Collier County Code Enforcement Board, "C.B.B.", charging you with the violation(s) as described on this form. You will/have receive(d) notification that a hearing will be held which you and/or a legal representative may attend. Failure to appear may result in the Board proceeding and making a det~rmination ....in your absence. If the Code Enforcement 'Board finds a violation exists, a maximum fine of $250.00 per day in the case of a firstyiolation, a:!JlllXimum fine of $500.00 per day for a repeat violation and a maximum fine of $5000.00 per violation in the event the "C.B.B." finds the violation to be o~ ~ "irreparable or irreversible nature. Fines may be imposed OIi a:" per day basis for each day each violation exists. Costs of prosecution and/or repairs may also be assessed against you for any violation, or, 2) the issuance of a Notice to App('ar . before the Collier County Court where penalties of up to $500 + costs may be imposed, or, 3) the issuance of a citation which you may payor contest in the Collier County Court where penalties of. up to $500 + costs may be imposed. SERVED BY:_POSTBD~PERSONAL SERVICE _ CERT MAll.. CERT. MAIL RECEIPT # I .HEREBY acknowledge I have received, read, and understand this notice of violation. ~~., Signature and Title of Recipient LJA/lId/l " etf)////1./S Print DATEDTm~~ DAYOF /t) ,2001 REF: CASE NO 2001100933 ~ ~ooooID5'iS- '---.- '-,--..' I . COLLIER COUNTY, FLORIDA NOTICE OF VIOLATION AND ORDER TO CORRECT IO JERRY B. BLOCKER and KIMBElU.EA L. BLOCKER (OWNE:RS) 1830 1 ()'\. STREET N E: ' NAPLES. FLA. 34120 LOCATION OF VIOLATION (LEGAL AND ADDRESS) WITHIN COLLIBR COUNTY ZONING DlST. "I" SEC.34, TWN. 46, RNG.29, SUBD. NEW MARKET LOTS 9 and 10, BLOCK 48, IDt# 63864160002 of Collier Co. record, OR 3170, PAGE 1547 A.K.A. 1101 ALACHUA ST. IMMOKALBB, FLA. Previously known as "Shells Ttailer Park" NOTICE . PURSUANT 10 'COllIER OOUNTY CODB JiNFORCBMENT BOARD , .' (C B B ) ORD , 05-55 and 97.35, AS AMBNDlID,YOU ARB NQTIFIED THAT 'llIBPOILOWING VJOLATIONS EXIST. 'OCt. 1970 Z ooing ReguJationflJmmo~ area ArtIcle IV, Soc. 4.1 "USE" , SEe. 4.2 "BUILDINGS", SEC: 4.3 "WfS" and SEC. 4.4 "YARD SP ACB" Article Va, SEe. 1.1 4'lN'J"BN'r' and SEe. 7.9 "I'BRMINA'IIOR REQUIREM.Bm'S" . . ArtIcle XI, Sac. 10.11 "I-C~31 co'lllll1et'clal, -lighllndust. Dlst." par. f2 ORn. 04-41, Il$ emended ' (LDC) SBC. 1:04.00 (APPUCABn.r'rY). SUB SBC'S 1.04.01 '(GBNBRAL) . pats. A. B.' and C and 1.04.05 ~'IIONSHlPro mOWlllMGMT.1>1.AN) . SEe. 1.0S.00 (FINi>tNGS, PURPOSB and IN'l'BN1) , SUB sac.. 1.0S.01, pllf.-P SEe. 2.02.00 (l3STABUSHMBNT OF ZONING DISTS.) , SUB see's' 2.02.01, par. -D. and 2.02.03, (pROHIBll.'BJ;> USB), SEe. 2.03.00, (ZONING DIST'S.) SUB SBC'S. 2.03.03, par. -A SBC. 2.64.00 (P:BRMISSIBLB USES) SUB SBc.2.04.03, pg. ''I.DC2:1l3" . Sac. 2.05.00 (DBNsrrY STANDARDS) SUB SEe. 2.05.01, par. _ A SBC. 8.08.00 (CODB BNFORCBMBNT BO.AlID) , par'&. B and D see. 9.03.00 (NONOONFORMmBS) . . , SUB SHe. 9.03.01 (GENERAL) ,par.-D DBSCRJPTION OF CONDmONS CONSTlTO'I'ING THE VIOLATION (S). Unlawful and inapproprlato Mobile Home improvements 10 Industriul zoned. property in Collier County known 8$ 1101 A1aclma St. Immokalee. FIaJa.ka. .Jots 9 and 10, block 48.Ne\VJDllIket Subd.., JD# 63864760002 of Collier Co. record.. All SlIDIC industrlal 100ned property having had a pxevious "l-C-3" zoniDg desipation. which also prohibited placement of Mob no Homes for dwelling use. (REF: IMMOKALBB ARBA. ZONING DIST. ROO'S. DA1BD ocr. 1970) An same development and improvements having taken place in direct COnlrast to CoWer Co. land development reqlJb:ements and wltlmut prior Collier Co. ZoDiug ami Planniog roview and approval. INQUlRlBS AND'COMMENTS SHOULD BB DIRBCTIID TO CODB BNPORCBMBNT 1NVBSTIGATOR DeDDis MazzOne 2800 ko. Horseshoe Dr. Naples, riIa. 34104 (239) '403-2441 PAX (239) 40~2343 Investigator's Sipatolc. ~ W1~?1\..9 ~OLATION STAms :-----1L..JNrrIAL ORDER TO CORRECrVIOLATlON{ID , YOU ARE DIREcmD BY THIS NOTICE TO TAKE THE FOLLOWING CORRECTIVE ACTION(S) Must obtain a complete and sufficient CoWer County DemoUtioll Permit for the removal of nU mobile home . dwellings/structures cuaently located on industrial zoned property in Collier Co. known as lots 9 and 10, block 43. 10 6386416000Z. of CoWer Co. record, no later than 90 daJ'S after receipt of this notice. Upon having obtained a demolition permit, must then execute saine by removing aD non-allowedt non-approved mobile homes, related improvements. use and resulting debris in a coUalrorated effort with aJllocal uOOtles, so as to comply ~th all Collier Co. codes, ordinances and ~ use regulations and requirements no later thlln 120 dll)'s' after having obtained a demoDtion permit. PENALTIES MAY BE IMPOSED: Failure to oorrect th~ violationS on or before the'llaw specified above will result hi, 1) the filing of lUl affidavit of violalion with tho Collier County Code Enforcement Board. "C.B.B.", or Special Master 80M: ~harging you with the violalion(s) as descd.bed. on this fotm.. YOll witllhave m:e1ve(d) notification. that a hearing will be held which you and/or a legal rep~ntative may aUend. Faitme 11) appear may result in the BoardIS. M. proceeding and making a determination in your abseuce. If the Cod~ Enforcement Board or Special Master finds a violation cmt$, a DIIlXimum fine of $1000.00 per day in the case of a first violation, a maximum fine of $51l00.oo per day for 8 repeat viollllion and a nmximnm fine of $15,000.00 per violation in the event Ibm .ill a finding that the violation is of an inepamble or in'evem'ble natute. Fmes may be imposed on a per day basis ~ eacb day each violation mBtll. Costs of prosecution and/or repairs mar::zbe as sed against you for any violation.. . SBRVEDBY:-~T. ,PBRSONAL CBRT. MAlLRBCBlPTNOi .BBRBBY acknowledge 1 and understand this lice of violalion. "'Ie $~ Te> Sl~an TifleofRecipIent. ~ t 6- III Print' T'f DATED THISXSMY OF ~ 2006 row: CASB NO 2001100976 W..,...NSf;t"" U1. 'l"t..m~ -- COLLIER COUNTY HOUSING AND URBAN lM.'PROVEMENT DEPARTMENT Site Inlprovenlent Plan Assjsta~tce Progrant Toe (.;olller Count)' H6using flJld Urban Iii1provernent D-epa.rtment will grant lip to $200 per unit to Etsslst lrI'u'nokalee mobile home park operators in complering a Sire Improvement Plan. This program will provIde park owners and/or operators with a grant for approximately two thirds of the cost assessed by engineering firms for preparing such plans. The Collier County l?lanJ1ing Department wiJl require aU existing mobile horne parks in the County to file a Site Improvement Plan, Question I: How do 1 qualify for this grallt? Grants are available to owners and/or operators of mobile home rental parks in the Immoka.lee area. Que,')tion 2: How dOC8 a mobile home park qualify for tllis grant? rhe subject mobile home park must b~ all ex.is~g il~al or legal non-confonning rental park. ------., ......-..- --.. - ------...-...-.- .......... Question 3: Ate there tiny restrictiQlls as to where tile property may he loc(Zted? The only criteria is that the property must be located within Xmmokalee Area. Question 4: How mIlch mQney can I get? Applicants will receive approximately two thirds of th!} cost of the Site Improvement Plan or $200 pel' 'Unit (whi~hevel' is less). Payment wlU be made directly to the finn that completes the S.I.P. Question SI So w}wtls tho Date!%? The catch i~ thnt owners with densities in excess of what 1.s legally pemlitted may be granted increased density if they follow through with the Site Improvement Plan and begin the required changes within 6 months of acceptance. ; Question 6: Who do I call if I have more '1ucstlom about this prol;ram? Collier COlmty Community Development Immokalee Office Ho~tsing and Urban Improvement Department 106 S. 1st Street Immokaleet FL 34142 Phone (941) 657-2525 Fax (941) 657~3837 EXISTING COLLIER eOUNTY LAND DEVELOPMENT CODE 2.03.07 G 6. Nonconforming Mobile Home Park Overlay Subdistrict. Establishment of special conditions for these properties which by virtue of actions preceding the adoption of Ordinance No. 91- 102, on October 30, 1991, were deemed to be nonconforming as a result of inconsistencies with the land development code, and are located within the Immokalee Urban Boundary as depicted on the Immokalee Area Master Plan. 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 requiring 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. Travel trailers, regardless of the square footage, are not permitted as a permanent habitable structure. b. Required site improvement plan application. The property owners of all nonconforming mobile home developments/parks that were in existence before November 13, 1991, i.e., that predate Ordinance No. 91-102, the land development code, shall be required to submit a site improvement plan (SIP) meeting the standards set forth below by January 9, 2003 or thereafter within the time frame set forth in an order of the Code Enforcement Board finding a violation of this section, or by the date set forth in a Compliance or Settlement Agreement entered into between Collier County and a property owner acknowledging such a violation and also establishing the date by which such violation will be cured through the SIP submittal process set forth below. c. The site improvement plan (SIP) master plan shall illustrate the way existing buildings are laid out and the infrastructure (i.e. utilities, streets, drainage, landscaping, parking and the like) to serve those buildings. The number and location of buildings shall be reviewed for consistency with Code requirements (i.e. setbacks, 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 official record acknowledging the 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 not received a building permit 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 state law. d. For the specific requirements concerning the SIP submission referenced in b. and c. above, see Section 10.02.05 F. of this Code. August 21, 2007 Jim Coletta Chairman Collier County Board of Commissioners Naples, Florida Dear Chairman Coletta, RE: J. & K. Blocker Mobile Home Park in Immokalee On behalf of the Immokalee Master Plan and Visioning Committee, I am forwarding to you by this letter the results of a recent consideration of the referenced matter. As background, you may be aware that the Immokalee Master Plan and Visioning Committee (IMPVC) is continuing in its efforts to finalize the Master Plan. As part of that process, finding fair ways to transition from existing uses to those proposed for long term development in a manner consistent with the proposed Master Plan is a key part of the Immokalee community's support for these efforts. A recent case brings this point into focus. That case involves Mr.& Mrs. Jerry Blocker's property on Alachua Street that has been used as a mobile home park since the early 1960's. As you may also be aware, we have been informed that the Blockers are simply seeking to implement a settlement/compliance agreement to resolve a pending lawsuit and code enforcement matter that would rely on the Immokalee Initiative's Site Improvement Plan (SIP) process to resolve those matters. With that as background, on August 15, 2007, after a brief presentation by their attorney, Mr. Patrick White, the IMPVC voted to find that there was no inconsistency between such a solution relying on the SIP process and the terms of the existing or presently proposed Immokalee Area Master Plan. According to staff, when we get to the code portion of our master plan we will be able develop a much better solution the grandfathering concerns. Please let me know if anything further may be required with respect to this matter. T~an~kJ~j:!;~;?'--:;~~ L.. ~~;f~~;"~T-h6 'as, Jr. ~, Chairman, IMPVC 0'11 ArNe. CONSULTING .Al. ,," V.L A. . PI~nning ,Visualization . Civil Engineering . Surveying & Mapping 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. Mulhere, AICP Vice President Planning RWA, Inc. Date: March 6, 2007 A. Background The subject property is located at 1101 Alachua Street, Innnokalee 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 1, Pages 104 and 105, Public Records of Collier County Florida. The subject property is alkla "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 sal~age operation. Aerial photos and actual site visits reveal that there are a number of junk/salvage 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 )Yould appear to be a code violation on the part of the adjacent business/land oWl}er, and removal of these vehicles from the public ROW, or vacation of this unus~yd 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. Q:\2006\060f8J!6H:{iBCW6cW~r~l~~lt8pj\;~i~Jlrl~E}S(l~If1,rkI~aJJBll';I~~%\tigS;Hg~?o~~~~OOjRJi1fbPINION 03-06-07 doc WI'IW.consu1f-rwa.com . Blocker - Professional Planning Opinion March 6~ 2007 Page 2 of21 '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 Property Appraiser's records and Aerial Photos . The Property Appraiser~ s records only date back to 1960. Hurricane Donna destroyed all records prior to that time. . The Property Appraiser~s Property History Cards for the subject parcels state that the property has been considered and appraised/taxed 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 ofthe non-mobile home/trailer 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 +/- . R-2 (Residential) - Built 1948 +/- Blocker - Professional Planning Opipion March 6, 2007 Page 3 of21 . 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. +t+ 1963 Per. 4086 - 4/4/63 +:+ 1963 Per. 4087 -4/4/63 +:+ 1965 Perm. #5045 +t+ 1966 Per. #65-177 +t+ 1968 Per. # 67-759 500 3/4/68 +:+ 1985 Per 1-85-363? 817/85 Folio 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 1985 . . Trailer-Built 1950 . Trailer - Built 1948 . Trailer - Built 1956 . Trailer - Built 1955 Property History Card indicates the following permits issued for this parcel. .:+ 1965 Perm. # 5045 +:+ 1985 Per - 1-85-3628-7-85 Folio 63864760002 (Lots 9 & 10) . MIl (Mobile Home) - Built in 1970 +/- . A W (Cabana) - Built 1970 +/- . ALSP (Aluminum Screen Porch) Built 1984+/- . MH (Mobil Home) - Built 1975+/- . Expansion (addition to mobile home) - Built 1975+/- . ALPC (Aluminum Car Port) - Built 1970 +/- Blocker - Professional Planning Opinion March 6, 2007 Page 4 of21 . * 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 eourts & Community DevelODltient & Environmental Services Historic Zonine MaDs. 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 oflast revision of the underlying map as no known zoning regulation was in effect in Collier County prior to 1959. 3. Historic Zonin2 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 (mobile homes and several traditional (stick-built or concrete block) dwellings) for more than forty years. The earliest zoning ordinance in County records dates to 19,59. 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 of21 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 LDC. 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 ofthe LDC. 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 tmits 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 an.d 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 hnmokalee Area Zoning Ordinance (effective October 1970) Blocker - Professional Planning Opinion March 6, 2007 Page 6 of21 . 1973 Relevant pages Immokalee Area Zoning Ordinance (Amending 1970 Immokalee Area Zoning Ordinance effective May 1973) Th,e 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 propelty reveals that in each of the above, the more permissive zoning districts ' allowed, as pelmitted uses, all of the uses permitted in the less permissive 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-l district, and the C-l 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 -1 district. Therefore, all uses permitted by right in R -1 through R-3 were also permitted by right in C-l, all uses permitted by right in R-l through R-3 and C-l were also permitted by right in C-2, all uses permitted by right in R-1 through R-3, C-1, 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 district as well as permitted uses in the R-l through R-3 and C-1 through C-3 districts. The R-1 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 "trailersH from being used as living quarters. If this prohibition/was also desired in the R-1, 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 subj ect property, whether it was zoned residential (R -1 through R-3), commercial (C-l 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 mobile home and/or "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 of21 Nevertheless, in both the 1959 and 1961 (as amended in 1962) the codes expressly permit in the C-l district, under permitted use Number 6, Trailer Camps or Courts. Therefore, regardless of any restriction expressly 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-1 district and the I district allowed all permitted uses in R-1 through R-3 and C-l through C-3. Thus, as to the subject lands the now existing uses were then permitted. Additionally, the C-l district, under permitted use Number 2, listed a number of expressly prohibited uses in the 1959 and 1961 codes. In 1965 the list of. prohibited uses is carried over but now includes a previously nonexistent 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-l through R-3 districts did not allow mobile homes in the case of the 1965 code, and the C-1 district prohibited the mobile home use individually or generally (under permitted 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, or substances, or possesses an abnormal explosion hazard." Thus, as to the subject lands, the now existing 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- I through C-3 districts. The C-3 district allowed permitted uses from the C-l and C-2 districts, and so on. Reviewing the historic zoning maps, it is not unti11970 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 of21 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 cun-ently 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 cun-ent and historic zoning codes is provided in Section D ofthis 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 CBB 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 cun-ent zoning district that allows the residential uses, or alternatively, to remove the violation(s). Since it is not possible under the current GMP provisions to rezone the property to make the residential use conforming, the CBB 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 nonconforming status, the residential use of the subject property may continue subject to the limitations of Section 9.03.02. I D. Nonconformities Applicable portions of the current LDC read as follows fdouble-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 wery lawful before the LDC was adonted or amended, but which would be prohibited, regulated, or restricted under the terms of LDC or future amendments. It is the intent of this section to nermit these nonconformities to continue until thev are voluntarily renovated or removed as reauired bv the LDC. but not to encoural!e their survival. It is Blocker - Professional Planning Opinion March 6, 2007 Page 90f21 further the intent of the LDC 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. Nonconfonning uses are declared by this section to be incompatible with permitted uses in the districts involved. A nonconforming use of a structure, a nonconfonning 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 LDC, 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 plR;n may be amended by approval of the BCC, provided 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, sha~l 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 permitt~d. 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, junkyard, commercial animal yards and the like, shall be discontinued within one Blocker - Professional Planning Opinion March 6, 2007 Page 10 of21 (1) year of the effective date of the LDC or relevant amendment of the LDC. H. Safety of nonconformities. 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 containing 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 Requirements for Continuation of Non conformities. Where. at the effective date of adontion or relevant amendment of the LDC, lawful use of lands or waters exists which would not be nermitted under the LDC, the use mav be continued, so long as it remains otherwise lawful, provided: A. Enlargement, increase, intensification, alteration. No such nonconforminl! use shall be enlarl!ed. intensified. increased. or extended to occupy a greater area of land, structure, or water than was occupied at the effective date of adoption or relevant amendment of the LDC, excent a sin.gle-familv. dunlex. or mobile home use as nrovided for within section 9.03.03 BA. C. Change in tenancy or ownership. There mav be a chanl!e in tenancv. ownershin. or manaffement of a nonconforminl! use nrovided there is no chanl!e in the nature or character of such nonconfonninl! 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 nonbearing 'walls, fixtures, wiring, or plumbing to an extent not exceeding twenty (20) percent of the cun-ent 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 of21 date it becomes nonconforming shall not be increased except subj ect further to the exception provided at section 9.03.03 B., herein. H. Subdivision or structural additions. No land in nonconforming use shan be subdivided, 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 Non conformities . 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 'ot 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. J:'Io such nonconforminl! structure mav be enlarl!ed or altered in a wav which increases its nonconformity. but anv structure or uortion thereof may be altered to decrease its nonconfOlmitv~ urovided. however. that the alteration. exoansion. or reolacement of nonconforminl! sinl!le-familv dwellinl!s. duolexes or mobile homes shall be oermitted in accordance with section 9.03.03 BA. 2. Should such nonconforming structure or nonconforming portion of a structure be destroyed by any means to an extent 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 provisions 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 Planning Opinion March 6, 2007 Page 12 of21 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 reolacement will not increase the densitv of the oarcel or lot on which the nonconforminlZ sinlZle-familv dwellinlZ . duolex . or I mobile home is located: b. The alteration. exoansion. or reolacement will not exceed the buildinlZ heilZht reauirements of the district most closelv associated with the subject nonconforminlZ use: c. The alteration. exoansion. or reolacement will not further encroach uoon anv nonconforminlZ setback: d. The alteration. exoansion. or reolacement will not decrease or further decrease the existinlZ oarkinlZ areas for the structure: e. The alteration. exoansion. or reolacement will not damalZe the character or aualitv of the neilrhborhood in which it is located or hinder the Drooer future develooment of the surroundinlZ Drooerties: and f. Such alteration. exoansion. or reolacement will not oresent a threat to the health. safetv. or welfare of the community or its residents. C. Reauirements for imDrovements or additions to nonconforminlZ 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 regulatiolJ.s. 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 of21 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 building: nermit for renlacement of a mobile home. the nronertv owner or authorized ag:ent shall nrovide the Countv Manag:er or desimee. or his desimee. with tllree conies of a scaled drawing: of the subject narcel which indicates: a. Proof of building: nermit issuance for structure being: renlaced. b. The location of the structure to be renlaced and its relationshin to adjacent mobile homes and narcel boundaries. 4. Prior to issuance of a building: 1jlermit for anv additional mobile homer s). the anolicant or authorized ag:ent shall obtain a site ~evelonment nlan. consistent with Chanter 10 of the LDC. As oart of the SDP aonlication. building: oermit numbers of all existing: mobile homes shall be submitted. 5. In no case shall the issuance or reissuance of building: Delmits cause the densitv of the subject narcel to exceed that nrovided in , the densitv rating: svstem of the GMP or the bnmokalee future land use maD. exceot as mav be nrovided in section 9.03.03 B.4. of the LDC. 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 provisions, note that Section then read as follows: 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 structur~s 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 of21 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 effective code: 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. E. Specific Analysis of Notice of Violation (NOV) code citations The Notice of Violation (NOV) 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 ZoniD1! Reeulations 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 mobi1e home use. Although the use is not presently permitted in the "1" 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 LDC 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 NOV. The Immokalee 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 of21 1.04.01 Generally 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 mc. 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). Response: 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 oftne LDC had in fact occurred. 1.04,05 Relationship to Growth Manaeement Plan The adoption of this LDC is consistent with, compatible with and furthers the goals, policies, objectives, 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 of21 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. Resuonse: 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, compatibl~ 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 advanct1 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 Puruose 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 cOqlpatible with surrounding land uses, served by adequate public facilities, and sensitive 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 district. All development within each zoning district shall be consistent with the purposes and regulations stated for that zoning district in Chapter 2. Resuonse: Same general response as above, except to add this provision merely authorized creation of zoning districts, etc., and that they must be internally consistent. 2,02,01 Establishment of Official Zonine: 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 of21 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. . ResDonse: 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, (CBB) Item 2. requires . a re-zoning without affording any opportunity to amend the GMP to allow such use. . 2,03,03 Industrial Zoning: 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 ofthe Collier County GMP. 2.04.03 Table of Land Uses in Each Zonine: 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 Housine: Tvpes' A. Where residential uses are allowable, the following density standards and housing type criteria shall apply. Response: 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 of21 8.08.00 CODE ENFORCEMENT BOARD B. Violation. Whenever, by the provisions of this Code, the performance of any act is required, or the perfonnance 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 o~ through its agents, employees, or independent contractor, who violates the provisions of this Code, or who participates in, 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 herein or as otherwise provided by statute or ordinance. ReSDonse: 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 GenerallY 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 underlying I Industrial zoning on the sl;1bject 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 of21 3. Under Descriotion of Condition ConstitutinJ! the Violation the NOV reads: Unlawful and inappropriate Mobile Home improvements to h1dustrial zoned property in Collier County known as 1101 Alachua St. 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 1 aware of any professionsl planning analysis conducted by Collier County related to these allegations. Conversely, in preparation of this report, I 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 preserit 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 rather 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, given 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 of21 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. 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 Florida 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 Florida. 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). ill April of 2001 Mr. Mulhere left the employment of Collier County and began employment with the consu1~ing firm of RW A, Inc. Collier County then hired Mr. Mulhere as its lead planning 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 Mixed 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 of21 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 ofprojects. NAPLES/320!96 v.O!