CESM Orders 03/16/2007 COLLIER COUNTY CODE ENFORCEMENT
SPECIAL MAGISTRATE
Case No. : 2006-060712
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY,FLORIDA,
Petitioner,
vs.
JAMES DONOVAN and CATHY DONOVAN,
Respondent(s).
ORDER OF THE SPECIAL MAGISTRATE
THIS CAUSE came on for public hearing before the Special Magistrate on March 16,
2007, and the Special Magistrate, having heard testimony under oath, received evidence, and
heard argument respective to all appropriate matters, hereupon issues its Findings of Fact,
Conclusions of Law, and Order of the Special Magistrate, as follows:
FINDINGS OF FACT
1. Respondent(s), James Donovan and Cathy Donovan, are the owner(s) of the subject
property.
2. Respondent(s) were notified of the violation and of the date of the public hearing by
regular U.S. mail, by certified mail and by posting and pursuant to the Order of Continuance
entered on February 2, 2007.
3. The Special Magistrate has jurisdiction of this matter and the Respondent(s), James
Donovan and Cathy Donovan were properly and duly notified of the public hearing. James
Donovan was present at the hearing and testified that he was present on behalf of himself and his
wife, Cathy Donovan. Mr. Donovan was assisted at the hearing by John Rogers, former owner
of the property, as his agent.
4. This matter was originally convened before the Special Magistrate on February 2, 2007,
at which time the Respondent(s) objected to the hearing proceeding with any issue other than the
status of the roof of the boathouse by the following statement from Respondents' agent, John
Rogers: "We agree we can be cited for all of these things at any time — we are just not today."
Mr. Rogers further represented to the Magistrate that it would be necessary for the Respondent(s)
to call the marine contractor, the roof contractor, the dock builder and the architect as additional
witnesses.
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5. The case was continued by Stipulation of the parties until March 16, 2007, in order to
give the Respondent(s) the opportunity to prepare to respond to all violations alleged by the
County to have occurred on the subject property, and the Respondent(s) were put on notice that
all issues in relation to the construction of the dock, pilings, boathouse and roof of the boathouse
would be heard at the subsequent hearing. Respondent(s) were on actual notice that the
violations of the Land Development Code regarding non-conforming use that were alleged by
the County to have been committed by the Respondent(s) would be heard at a subsequent
hearing.
6. The subject real property located at 200 Tahiti Circle,Naples, Florida, Folio#5239116005
is alleged to be in violation of Collier County Ordinance 2004-41, Sections 10.02.06 (B)(1)(a),
10.02.06 (B)(1)(e), Collier County Code of Laws and Ordinances, Section 22, Article II,
Subsection 104.1.3.5 and the Land Development Code Section 9.03.03(B)(2) in the following
particulars:
A legal non-conforming boathouse was torn down and rebuilt without the proper permits
and alterations to the existing dock, pilings and boathouse were made in contravention of
County ordinances, which activated that portion of the Land Development Code which
governs legal non-conforming uses.
7. Testimony was given by John Rogers that a Certificate of Occupancy for the dock was
issued on June 6, 2006.
8. Upon complaint by neighboring property owners, Theodore and Karen Wasserman, that
the boathouse was too large and too high, Collier County Code Enforcement Inspector, Joe
Mucha, inspected the subject property on June 20, 2006.
9. Upon investigation, Investigator Mucha observed that a "stop-work order" had been
issued at the site by building inspector, Gary Harrison, for work being done without a permit and
for altering the boathouse beyond its original footprint.
10. Testimony was given by Rocky Scofield, as an expert in the field of marine construction,
that the original boathouse was a legal non-conforming use prior to any construction, which
status requires that all construction on the site must be of the same dimensions as the original
dock and boathouse or the legal non-conforming use will be lost.
11. Testimony was given by Ross Gochenaur, Planning Manager for Zoning and Community
Development Review for the Collier County Community Development and Environmental
Services Department at the County, that all construction at the site of a legal non-conforming use
must remain within the original building "envelope" in order to maintain the legal non-
conforming use, and that any building permits issued which would allow construction exceeding
the limitations of the original footprint or any certificates of occupancy or completion issued
subsequently as a result of such construction were issued in error and may be revoked by the
County upon the discovery of the violations in order to achieve compliance.
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12. The construction of the dock and the construction of the boathouse structure were done
separately, with permits for the dock being applied for with the Department of Environmental
Protection and Collier County prior to the construction of the boathouse structure with a roof.
13. The construction of the dock, pilings and boat lift were done pursuant to a permit which
was issued without the attachment of a survey showing the original footprint of the structure and
without any reference to the impending replacement of the prior boathouse.
14. The undisputed evidence presented by both parties is that the boat slip is wider than the
original, the lifts are placed directly on the pilings rather than attached to the roof as the original
lift was placed, and the roof as built, without a permit, has a different pitch and peak than the
original roof.
15. The roof has since been removed, the prior permit has expired and the Respondent(s) are
currently in an"apply" status.
16. Testimony from the County's witnesses acknowledged that the application for the dock
and pilings was permitted and a certificate of occupancy was issued, but allege that the permits
and C.O. was issued in error based in incorrect or insufficient information. Both parties
acknowledge that no survey of the original dock's "footprint" was submitted with the application
for alterations of the dock and pilings.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, and pursuant to the
authority granted in Chapter 162, Florida Statutes, and Collier County Ordinance No.07-44, it is
hereby ORDERED:
A. Respondent(s) is/are found guilty of a violation of Collier County Ordinance 2004-41,
Sections 10.02.06 (B)(1)(a), 10.02.06 (B)(1)(e), Collier County Code of Laws and Ordinances,
Section 22, Article II, Subsection 104.1.3.5 and the Land Development Code Section
9.03.03(B)(2).
B. The Collier County Land Development Code clearly states that any expansion or
alteration beyond the original footprint of a structure which is defined as a legal non-conforming
use, "no matter how insignificant", will void the legal non-conforming status and will require
strict compliance with the current requirements of the Code.
C. Respondent's agent, John Rogers, argues that the dock, pilings and lift were permitted,
construction completed and a certificate of occupancy issued, making those portions of the
structure independent of the roof He further argues that each portion of the construction
requires different contractors and different applications and therefore the violations that occurred
in relation to all other parts of the structure, other than the roof, cannot be considered by the
Special Magistrate at this time.
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D. A boathouse is defined by the Collier County Code as a building or structure for the
storage of a boat. The elements that make up the entire structure are interrelated and must
operate in conjunction with each other in order for the structure to serve its purpose.
E. The expansion of the width of the boat slip,the removal of the lift and replacement with a
new lift, the replacement of the pilings to provide for the storage of larger vessels and the
construction of a roof with an altered pitch and peak are all alterations which do not conform
with the original footprint, making the legal non-conforming status of the structure void. The
original lift was attached to the roof, making it impossible to remove the old lift, replacing it with
a new lift which is attached to the pilings, without effecting an alteration which inexorably
creates an interrelationship between the different elements of the structure.
F. The fact that the permits and a Certificate of Completion by the County for the dock,
pilings and lift were issued in error by the County does not confer any rights or privileges to the
applicant which would allow violations of the Collier County Land Development Code to stand.
"The issuance of a building permit will not estopp the government authority from enforcing its
ordinances and revoking a permit which has been obtained in violation of its ordinance." Town of
Lauderdale-by-the-Sea v. Meretsky, 773 So.2d 1245 (Fla. 4th DCA 2000). Further, the Court in
Town of Lauderdale-by-the-Sea concluded as follows:
It thus appears that whether through mistake on the part of the parties or through
misrepresentation by the Meretskys, which the Town suggests, the Town Commission
authorized an act contrary to its own ordinances and, therefore, its approval was ultra
vires and void." Id. at 1249.
G. Respondents' agent has raised an issue regarding whether Respondent(s) were given
proper notice of the Code sections that were alleged to have been violated. These objections
were argued before the Special Magistrate at the original hearing on February 2, 2007, but
became moot upon the continuation of the original hearing when notice was given to
Respondent(s) regarding those provisions of the Land Development Code they were alleged to
have violated. Further, the Repondent(s) were on constructive notice of the contents of the
applicable ordinances of Collier County and are presumed to have constructive knowledge of the
nature and extent of the powers of governmental agents who issue permits. Town of Lauderdale-
by-the-Sea v. Meretsky, id. at 1249.
H. The original application for alteration to the dock, boat slip, boathouse and pilings was
entered by an administrative employee of the County who was without authority to alter a legal
non-conforming use beyond the "footprint" of the original dock and boathouse. ".....it would be
inconceivable that public officials could issue a permit, either inadvertently, through error or
intentionally, by design, which would sanction a violation of an ordinance adopted by the
legislative branch of the government. Only the duly constituted members of the Metropolitan
Dade County Commission enjoy that prerogative and then only in accordance with established
procedure. " Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980).
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IT IS THEREFORE ORDERED AND ADJUDGED:
I. Respondent(s) shall abate the violation by obtaining all required permits, and
removing all new construction on the site of and relating to the original dock, pilings, boat lift
and boathouse, which construction is an expansion or alteration of the original structure, and
returning the structure to its original state prior to the issuance of any permits for changes to the
dock, boat lift, boathouse and pilings, on or before October 31, 2007, or a fine of$150.00 per
day shall begin to accrue for each day the violations continue until compliance with this Order is
confirmed.
II. Respondent(s) shall pay the Operational Costs incurred in the prosecution of this
case within thirty (30) days of written notification to Respondent(s) of the amount due.
III. Respondent(s) shall notify the Code Enforcement Investigator, Joe Mucha, within
24 hours of abatement or compliance with this Order so that a final inspection may be performed
to confirm compliance.
IV. No additiorial.pe „If• kind shall be issued for the subject property until the
Stare or � y is brought into compl arty= z‘:.'6nformance has been confirmed.
;aunty of Atari
I HEREBY CERTIFY D this 3 61- day of k • ,2007 at Naples, Florida.
correct copy of a document cn;fIAa in
board Minutes.and Records of Collier Coot* COLLIER COUNTY CODE ENFORCEMENT
r5amy hano.a e0rat'dal seat this SPECIAL MAGISTRATE
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DWIGHT E. BROCK, CLERK OF000RT$
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PAYM T OF FINES: Any fines ordered to be paid pursuant to this order may be paid at the
Collier County Code Enforcement Department, 2800 North Horseshoe Drive,Naples, FL 34104,
fax #(239)403-2343. Any release of lien or confirmation of compliance or confirmation of the
satisfaction of the obligations of this order may also be obtained at this location.
LIEN RIGHTS: This order will be recorded in the Public Records of Collier County. After
three (3) months from the filing of any such lien or civil claim which remains unpaid, the Special
Magistrate may authorize the County Attorney to foreclose on the lien or pursue collection on
unpaid claims. In the event that outstanding fines are forwarded to a collections agency, the
Violator will be responsible for those costs incurred by Collier County.
APPEAL: Any aggrieved party may appeal a final order of the Special Magistrate 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. It is the
responsibility of the appealing party to obtain a transcribed record of the hearing from the Clerk
of Courts. Filing an Appeal shall not stay the Special Magistrate's Order.
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cc: Respondent(s) : James and Cathy Donovan/
Craig Woodward, Esq., Attorney for Complainants, 1
01. Theodore and Karen Wasserman -'
4. Collier County Code Enforcement -
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