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CCPC Minutes 09/07/2001 RSeptember 7, 2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION NAPLES, FLORIDA, SEPTEMBER 7, 2001 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:34 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: NOT PRESENT: ALSO PRESENT: CHAIRMAN: Joyceanna J. Rautio Kenneth L. Abernathy Russell H. Budd Russell A. Priddy Michael Pedone Dwight Richardson Lora Jean Young David J. Wolfley Ray Bellows, Planning Services Marjorie M. Student, Asst. County Attorney Susan Murray, Current Planning Manager Page 1 CLERK TO THE BOARD MAUREEN KENYON AGENDA 2. 3. 4. 5. 6. 7. COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., FRIDAY, SEPTEMBER 7, 2001 IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTrED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITrEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITrEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAy NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WH/CH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ROLL CALL BY CLERK ADDENDA TO THE AGENDA APPROVAL OF MINUTES: July 19, 2001 PLANNING COMMISSION ABSENCES BCC RECAPS CHAIRMAN'S REPORT ADVERTISED PUBLIC HEARINGS Ao BD-2001-AR-985, Miles L. Scofield, of Scofield Marine Consulting, representing Peter A. Guglielmi, requesting a 25-foot extension for a boat dock facility protruding 35 feet into the waterway (45 feet as measured from the property line) for property located at 119 Heron Avenue, further described as Lot 25, Block T, Conners Vanderbilt Beach Estates, Unit 3, Section 29, Township 48 South, Range 25 East, Collier County, Florida. 1 Bo Co Fo Go Ho BD-2001-AR-938, Miles L. Scofield, of Scofield Marine Consulting, representing Henry and Monica McVicker, requesting a 45-foot boat dock extension to allow for a boat dock protruding 65 feet into the waterway for property located on Keewaydin Island, Lot 3.5, South Naples Shores, in Sections 23 & 24, Township 51 South, Range 25 East, Collier County, Florida. VA-2001-AR-979, Terrance Kepple, of Kepple Engineering, representing Shader-Lombardo Properties, LLC, requesting a 12.1-foot variance from the Vanderbilt Villas PUD required distance between structure setback of 20 feet to 7.9 feet for property located at 515 Roma Court, fm'ther described as Lot 22, Vanderbilt Villas, in Section 21, Township 48 South, Range 25 East, Collier County, Florida. PUD-2000-21, Robert L. Duane, A.I.C.P., of Hole Montes, Inc., representing Robert Vocisano and Angelo Favretto, requesting a rezone from "A" Rural Agricultural to "PUD" Planned Unit Development to be known as Terafina PUD for a maximum of 850 residential dwelling units, golf course, clubhouse, and a maximum of 40,000 sq. ft. of Neighborhood Village commercial retail uses, for property located approximately 1.5 miles east of 1-75, one mile north of Immokalee Road (C.R. 846), in Section 16, Township 48 South, Range 26 East, Collier County, Florida, consisting of 646.5+ acres. PUDZ-2001-AR-432, Karen Bishop of PMS, Inc. of Naples, representing Kenco Development, Inc., requesting a rezone from "PUD" to "PUD" Planned Unit Development known as Indigo Lakes PUD and "A" Rural Agricultural to "PUD" Planned Unit Development to be known as Indigo Lakes PUD for the purpose of increasing acreage from 140.85 acres to 181.37 acres and reducing density from 3.14 to 2.43 units per acre for a maximum of 442 residential dwelling units, for property located on Collier Boulevard (C.R. 951), south of the existing Oak Ridge Middle School, in Section 27, Township 48 South, Range 26 East, Collier County, Florida. PUD-92-08(1) Dwight Nadeau, of RWA, Inc., representing William T. Higgs, requesting a rezone from PUD to PUD known as White Lake Industrial Park PUD having the effect of changing the name to White Lake Corporate Park PUD, increasing the industrial land use from 67.4 acres to 86.3 acres, and changing the property ownership, for property located northeast of and adjacent to the intersection 1-75 and Collier Boulevard (C.R. 951), in Section 35, Township 49 South, Range 26 East, Collier County, Florida. RZ-2001-AR-823, Tim Hancock of Vanasse & Daylor, LLP, representing Sunset, LLC, requesting a rezone from "GC" Golf Course to "RSF-4" for a maximum of 12 single-family dwelling units for property located at 100 Forest Hills Boulevard, in Section 19, Township 50 South, Range 26 East, Collier County, Florida, consisting of 3.51± acres CU-2001-AR-1156, Robert Duane, of Hole Montes, Inc., representing Collier County Public Works/Wastewater Administration, requesting Conditional Use for an essential service allowing for the expansion of the South County Water Reclamation Facility per Section 2.6.9.2 of the Land Development Code for property located on 5600 Warren Street, in Section 20, Township 50 South, Range 26 East, Collier County, Florida, consisting of 48 ± acres-: I. PDI-2001-AR-949, Donald A. Pickworth, Esq., of Donald A. Pickworth, P.A., representing Naples Commercial, LLC, requesting an insubstantial change determination to the Forest Glen of Naples PUD Master Plan, to reinstate access points for the commercial tract for property located in Section 2, Township 50 South, Range 26 East, Collier County, Florida. J. LDC and Related Amendments OLD BUSINESS NEW BUS]NESS 8. PUBLIC COMMENT ITEM 9. DISCUSSION OF ADDENDA 10. ADJOURN 9/7/01/CCPC AGENDA/SM/lo September 7, 2001 CHAIRMAN RAUTIO: Good morning ladies and gentlemen. I'd like to call the Planning Commission for September 7th, a Friday, to order. First item on the roll call -- excuse me -- the first item on the agenda will be the roll call. Mr. Priddy? COMMISSIONER PRIDDY: Here. CHAIRMAN RAUTIO: Mr. Budd? COMMISSIONER BUDD: Here. CHAIRMAN RAUTIO: Mr. Pedone? (No response.) CHAIRMAN RAUTIO: Absent. Mr. Abernathy? COMMISSIONER ABERNATHY: Here. CHAIRMAN RAUTIO: Ms. Rautio, present. Mrs. Young? COMMISSIONER YOUNG: Here. CHAIRMAN RAUTIO: Mr. Richardson? COMMISSIONER RICHARDSON: Yes. CHAIRMAN RAUTIO: And Mr. Wolfley? (No response.) CHAIRMAN RAUTIO: Absent. Thank you. We do have a quorum. Is there any -- are there any addenda to the agenda? MS. MURRAY: Good morning, Commissioners. Susan Murray, Current Planning Manager. There are a few changes this morning. The first change I want to make the audience aware of-- and we may want to mention this again later on in the hearing -- is that Item J, the LDC Amendments, will not be discussed today. That item will be discussed at your hearing on September 19th at 5:05 p.m. Additionally, there'll be a second hearing on October 3rd, also at 5:05 p.m., and that will be the final hearing in front of this board before it Page 2 September 7, 2001 goes to the Board of County Commissioners, so that's Item J. The other announcement is Items A and B have been continued until September 20th. CHAIRMAN RAUTIO: Continued until September 20th. MS. MURRAY: Yes. COMMISSIONER ABERNATHY: Which item? MS. MURRAY: Item A and Item B. And for the benefit of the audience, if anybody wishes to speak on any of the agenda items today, there are speaker slips out in the hallway. If you'll fill them out noting the item number and return them to me, I'd appreciate it. As well we have some additional agendas being printed as we speak. That's all I have. COMMISSIONER ABERNATHY: Susan, is our meeting on the 19th over in the Supervisor of Elections' office? MS. MURRAY: That's correct. Thank you for reminding me. That will be at the Supervisor of Elections' building as will your first regular meeting in October, which I believe is the 4th of October. That will also be in the Supervisor of Elections' building. CHAIRMAN RAUTIO: That is correct. The 4th of October. MS. MURRAY: Right. CHAIRMAN RAUTIO: Thank you. Okay. Item No. 3, approval of the minutes for July 19th. COMMISSIONER RICHARDSON: So moved. COMMISSIONER YOUNG: Second. CHAIRMAN RAUTIO' We have a motion by Mr. Richardson, a second by Mrs. Young for approval. All those in favor, say aye. CHAIRMAN RAUTIO: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER BUDD: Aye. COMMISSIONER PRIDDY: Aye. COMMISSIONER PEDONE: Aye. Page 3 September 7, 2001 COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Do we have any Planning Commission absences? (Commissioner Pedone arrives at 8:39 a.m.) Let the record reflect that Mr. Pedone is here. COMMISSIONER PRIDDY: And this is my last meeting. I will not be here for the second meeting in September. CHAIRMAN RAUTIO: And you will not be here for the Land Development meeting on the 19th either? COMMISSIONER PRIDDY: I'll not be here for the Land Development meeting on the 19th either. COMMISSIONER ABERNATHY: Golly, I didn't have my eulogy ready even. COMMISSIONER PRIDDY: And since my term expires, this is it. CHAIRMAN RAUTIO. Well, we certainly have appreciated working with you, Mr. Priddy. COMMISSIONER PRIDDY: Well, I have certainly enjoyed my eight years of service on the Planning Commission and will wish all of you well. CHAIRMAN RAUTIO: Thank you. Any other absences? Okay. The -- there are no Board of County Commission recaps in our packet, and I'm not sure we had one. MS. MURRAY: They haven't met since you last met. CHAIRMAN RAUTIO: Right. Okay. And I do not have a Chairman's Report today, so we'll move into our advertised public hearings. And as we've stated already, A and B, two boat dock extensions, have been continued. So our first item will be -- as a Page 4 September 7, 2001 public hearing will be VA-2001-AR-979, a variance for Vanderbilt Villas PUD. Would all those persons wishing to give testimony today please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) CHAIRMAN RAUTIO: And as a reminder, if you haven't filled out a speaker slip, please do so and give it to Ms. Murray up here. And when you approach the microphone, if your name is slightly unusual, please spell it for the court reporter. Thank you. Your turn. MR. BELLOWS: Good morning. For the record, Ray Bellows for the planning services staff. The petitioner's requesting an after-the-fact variance of 12.1 feet from the required 20-foot distance-between-structures requirement of the Vanderbilt Villas PUD. That would reduce the setback to 7.9 feet between the two structures. As you can see on the visualizer, the site is located on the east side of Vanderbilt Drive and is north of Roma Court. The multifamily tract in yellow is the tract in question containing the two multifamily condominium structures. CHAIRMAN RAUTIO: Mr. Bellows, before you go any further, I forgot to remind everyone that they do need to disclose any ex parte communications, and I know I have spoken to the attorney representing Vanderbilt I Condominium Association. I had a meeting with her and a site visit. Any other disclosures? COMMISSIONER ABERNATHY: I had a discussion with Ms. Stewart. COMMISSIONER BUDD: I also had a discussion with Ms. Stewart. COMMISSIONER RICHARDSON: I had discussions with her Page 5 September 7, 2001 and made my own site visit. COMMISSIONER PEDONE: And I missed the appointment. CHAIRMAN RAUTIO: All right. Continue, please. MR. BELLOWS: Yes, the Building 1, which is highlighted in yellow here, was the first building built in 1989. And, subsequently, Phase 2 was developed -- or constructed this year. And it's shaded here in blue. It was constructed consistent with the site development plan, SDP 90-60, which showed the conforming distance between setback requirement of 20 feet. However, the site development plan did not indicate the enclosed -- roofed-over access walkway and access staircase leading into Building 1. I highlighted that in the red color. You can see the access walk coming this way (indicating) Now, the building when it was built met the 20 feet to the yellow, which is the outside wall of principal structure, but was less than the required 20 feet when measured from the roofed-over closed stairway and access walk. This was not discovered until after the building just about completely when code enforcement was called to check it out. The fire department also was called in to check it out, and they required the construction of a two-hour fire-rating wall so it would meet fire code. The building was completed, and it is ready for CO at the present time. I have an Exhibit B here, which was the survey that was submitted with the site development plan. The survey shows Building 1, and it does not show the access walk or the staircase. This was supplied with the SDP for the building that was built CHAIRMAN RAUTIO: Mr. Bellows, would you clarify who did that survey. Whose name is on it? MR. BELLOWS: Yes. It's William Allen. CHAIRMAN RAUTIO: William Allen, thank you. MR. BELLOWS: The site development plan was amended -- the first site development plan for Phase 2, SDP90-60A, was Page 6 September 7, 2001 approved also showing -- or not showing the access walk and in conjunction with Phase 2 of the building. And I have that illustration here to show you also. It meets the 20-foot distance between structures requirement, but it doesn't show the staircase. This SDP was amended by this current developer, and they submitted, basically, a revised plan showing an additional story on this phase of the building -- or Phase 2 of the building. And it still kept a 20-foot distance between structures from the outside wall of both buildings, but it also did not show the staircase and access wall as it should have. That gets us to this point. Code enforcement was called in. We were looking at ways to remedy the situation, but at this point, the building is built. There is no way to rectify that other than applying for a variance and trying to determine how this situation occurred. We did a lot of research. I have David Hedrich from our office here who was assisting in trying to uncover the steps that led to the situation. And it basically comes down to the fact that the staircase and the access walk were not shown on the original SDP that was done by the previous developer, and when this developer took over and bought the project, he amended the plans based on those approved site development plan (sic) and was not aware that he had to show those staircases and access walk. And staff in reviewing that had no idea that there was stairs or staircase -- or access walk in reviewing that. And based on the survey -- and the site development plan amendment was approved and the building was constructed. And that's how we got here. COMMISSIONER ABERNATHY: How do you know that the developer didn't know that he should show a portion of the building, that being the staircase? How do you know that? MR. BELLOWS: No. It was just based on conversation with them and the fact that none of the original plans showed it either, so I Page 7 September 7, 2001 can see how the misunderstanding may have occurred. COMMISSIONER ABERNATHY: Well, the exclusive remedy isn't an after-the-fact variance, I wouldn't think. Isn't there an alternative of removing a portion of the building? MR. BELLOWS: Yes. And staff is recommending denial of this variance application because it doesn't meet all the criteria for approving a variance. There's no land-related hardship. Staff conclusion was that the applicant should have known that there was requirement to show the access walk and the staircase because it is part of the roofed-in structure. It's not a little one-story walk-up steps or deck less then 30 inches tall. This is a -- goes full height of the building tied in with a common roof. COMMISSIONER ABERNATHY: Well, Ray, I quite agree with you, but the language that you used in your report with the word "constrained," underlined, that has been some sort of a code around here for saying, "We'd like to approve this, but since there isn't a land-related hardship, we can't go on record as say approve it." So which side of the street are we walking on here? MR. BELLOWS: I fully-- COMMISSIONER ABERNATHY: If you took out the word "constrained," would that more accurately reflect your view? MR. BELLOWS- Yes. No -- this is one of those very difficult situations that you deal with -- I can understand the residents' of Building 1 having to deal with a building that's too close to them; however, in this situation I don't see a clear intent of misleading the county. Therefore, I felt constrained-- I would have probably recommended approval if we had some more leeway in our criteria of reviewing a variance, but we don't, so our recommendation is for denial. CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE: Mr. Bellows, if-- removing that Page 8 September 7, 2001 stairwell, will that cause -- or stairway -- will that cause a problem with the fire department for means of exit or egress? MR. BELLOWS: Moving the stairway -- COMMISSIONER PEDONE: In other words, if we had them remove the stairwell -- stairway, which gets rid of the two-foot problem, would -- or whatever that footage is -- MR. BELLOWS: Unfortunately, it wouldn't solve the problem if the residents in Building 1 were agreeable to do that. They are owned by separate homeowners' associations, and they are not getting along too well on cooperating on those issues such as that. However, even if they did come to some agreement along those lines, it still would not -- because we have a covered access walk and it's tied in with a common roof, it would be very costly to do that also. CHAIRMAN RAUTIO' Wait a minute. Are you asking for Building 1 to remove its stairways or Building 2? MR. BELLOWS: Building 2 doesn't have a stairway. CHAIRMAN RAUTIO: Well, there's -- COMMISSIONER PEDONE: So it's Building 1 that has the -- okay. COMMISSIONER ABERNATHY: Your remedy would be extracting the remedy from the victim? COMMISSIONER PEDONE: Yes. Well, I didn't realize that the stairway was on Building 1. I thought it was on Building 2. MR. BELLOWS: IfI go back to the -- and I have some photographs here. This was supplied by Pamela Stewart representing Building 1 homeowners' association. And I believe you also have this in your packet, this series of photographs. CHAIRMAN RAUTIO: Mr. Bellows, have you been out to the site? MR. BELLOWS: Many times. CHAIRMAN RAUTIO' Okay. You've walked it? Page 9 September 7, 2001 MR. BELLOWS: Yes, I have. CHAIRMAN RAUTIO: You've noticed the slope of the building and the rocks that are next to Building 2? MR. BELLOWS: Yes. CHAIRMAN RAUTIO: And you understand how the water flows down? MR. BELLOWS: I discussed this with the engineer for this project, and they were agreeable to do some additional landscaping and grading to improve this situation. CHAIRMAN RAUTIO: Now, I'm really going to be interested in hearing how they are going to do that. That's something I'm intrigued about. So go ahead and show us your pictures. MR. BELLOWS: From this photograph, there's the -- the rocks that were put down -- when I first made my visit, there was only dirt and gravel from construction. They were just completing it, so I assumed that they were going to be doing additional landscaping to help appease and mitigate the situation. CHAIRMAN RAUTIO: Mr. Bellows, you were stating how you tried figure out how this actually occurred. Are you even slightly implying that there's not some sort of a process by which reasonable people that are working on this project had an engineer say the contractor would not realize that they're awfully close to the building that they're attempting to construct? I mean, the one that's already constructed? I mean, do you really think that nobody went out tl~ere to look including the owner, developer, the engineer until it almost was finished? MR. BELLOWS: I'm just saying that they may not have been aware of the 20-foot-distance-between-structure requirements from the stairs and not from the face of the building. They do meet the 20-foot setback from the building facade to building facade, but in some cases the county would not include staircase in a setback Page 10 September 7, 2001 distance between structures -- setback requirement if it was unroofed and unenclosed and was just like a one-stow type staircase. The county has not looked at that as a setback requirement. CHAIRMAN RAUTIO' But when it comes to an integral part of the building, the roof is there, the staircase, the planters are out; under normal circumstances, one would determine that the setbacks would have to include that part of the structure. MR. BELLOWS: That would be my impression, yes. CHAIRMAN RAUTIO: Okay. I just want to be clear on that part because it's, to me, very significant of how close everything is when you consider the stairwells, and to have licensed people in the State of Florida drawing plans, reviewing plans once they have actually turned them in -- not you-all so much, but people who are going to be on this site -- to not at least question that you're not 20-20 from face to face of the building. MR. BELLOWS: Yeah. And that was in my staff report that it was felt that the applicant should have realized, and they should be responsible for providing correct distance between structures -- measurement and not rely on old data from a previous site development. CHAIRMAN RAUTIO: So you feel it's really being relied upon from old data because it was what was in the records. MR. BELLOWS: Yes. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: Madam Chairman? CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: Mr. Bellows, I have a few questions. In the PUD process that originally set this in motion -- MR. BELLOWS: Yes. COMMISSIONER RICHARDSON: -- were there any Page 11 September 7, 2001 discussions at that point as to what the building -- how many stories there would be, or was it just footprint? MR. BELLOWS: Typically, the PUD document doesn't address footprints, and there are no footprints in the PUD document. It just spells out development standards that the building has to comply with, and I have the copy of the development regulations from the PUD document. Basically, the front side and rear setbacks are from the project boundary. That's not from the tract boundary or any parcel boundary. It's from the outside PUD boundary. They have to meet a minimum of 40 feet. Now, they also have a distance-between-structures-setback requirement of 20 feet. It doesn't say how it's to be measured, so we rely on the Land Development Code, and, basically, that's from the outside wall of each building. CHAIRMAN RAUTIO: One comment on that. Is it not reasonable to think that most of the PUDs have one ownership to the project? MR. BELLOWS: That's definitely possible, but that's not precluded to have separate ownership. CHAIRMAN RAUTIO: Right. Okay. COMMISSIONER RICHARDSON: All right. If I may? CHAIRMAN RAUTIO: Go ahead. COMMISSIONER RICHARDSON: So we had no -- from the PUD standpoint, we had no knowledge of where the buildings were going to go except for the broad setback requirements -- MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- that were stated. So we leave it up to the Land Development Code application at this site development plan? MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: They've chosen to come in Page 12 September 7, 2001 in phases. One owner came in in Phase 1, built Building 1 -- MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- which is populated with people. It's a two-story building, and then sometime later another SDP came in, and it had to follow the then LDC rules. MR. BELLOWS: Correct. COMMISSIONER RICHARDSON: And they built a three-story building. MR. BELLOWS: The PUD allows for three stories. COMMISSIONER RICHARDSON: Okay. So they built a three-story building, and by relying on old data and not field data, they choose to place this building so that it was very close to Building 1. MR. BELLOWS: My understanding in talking is they placed it basically where the first SDP 90-60 was approved or Phase 2. COMMISSIONER RICHARDSON: All right. And our looking at and applying the Land Development Code then to this situation, we have been instructed that the boundaries of the building are to include not just the wall where the portion of the building where people walk into, but everything that's covered by the roof, which in this case would include the stairways going up -- MR. BELLOWS: Yes. COMMISSIONER RICHARDSON: -- and then that has compressed this three-story building to be right smack against the entrances to Building No. 1 for many of the -- MR. BELLOWS: 7.9 feet away. COMMISSIONER RICHARDSON: I have some question about the 7.9 feet. We also, don't we, look at structures to include walls? MR. BELLOWS: No. COMMISSIONER RICHARDSON: Well -- Page 13 September 7, 2001 MR. BELLOWS: The wall is a planter wall. It's less than 30 inches tall. Under the code that does not meet the structure's definition, so we do not measure from that planter wall. COMMISSIONER RICHARDSON: So there's no concern, then, at the SDP time to -- about ingress and egress, fire equipment and so forth going between buildings -- MR. BELLOWS' The fire department reviews the SDP, and they approved it. COMMISSIONER RICHARDSON: They approved it-- MR. BELLOWS. The fire wall. COMMISSIONER RICHARDSON: However, you brought this up that the fire department came in or the fire inspectors came in and required that to be a fire wall, but that in no way changed the footprint of that Building 2? MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: So that's not really relevant to our discussion about the variance. MR. BELLOWS: It doesn't affect the variance. The wall isn't part of the measurement for distance between structures. It's a planter wall not part of the building structure. COMMISSIONER RICHARDSON: But it has no relevance to the discussion about the variance for our consideration? MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: I do have another question. When we talk about setbacks and distances between buildings, isn't there a particular planning concept, a spatial concept that you want to be concerned about for light and air? Could you refresh my memory on that? MR. BELLOWS: Well, the PUD document doesn't profess any other setback requirement other than 20 feet and doesn't say how it's to be measured. The Land Development Code doesn't provide any Page 14 September 7, 2001 particular criteria for light and air circulation between structures, only that the setbacks are intended to protect the light and air circulation. CHAIRMAN RAUTIO: That's probably why the 20 feet was actually specifically placed in the PUD document-- MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: -- to protect the light and air aspect. Thank you. COMMISSIONER RICHARDSON: One last question. CHAIRMAN RAUTIO: Go right ahead. COMMISSIONER RICHARDSON: Building No. 2, then, was built where it is by the contractor by the owner's choice even after when -- I'm just amazed that they are building a building and can't see that it's going to be very close to the next building, particularly when it's a three-story building. MR. BELLOWS: Maybe that's something the applicant should address in more detail. COMMISSIONER RICHARDSON: All right. One aspect of your staff recommendation seems to suggest -- although there are no land-related hardships -- that there are other special conditions and circumstances that exist. And I look back to find out what those are, and they seem to be principally economic in concern. MR. BELLOWS: Well, on the staff report, if you look on Item No. B, "Are there special conditions and circumstances?" I said, yes. (As read): "As previously noted, the current developer constructed the second building in accordance with approved site development plan submitted by a previous developer." I think that was a special circumstance that was a little bit unusual. Here we have an approved site development plan approved by the county. This particular ap -- done by a different developer. This applicant comes in thinking in a good-faith effort that they are taking over this approved SDP that the county approved, that Page 15 September 7, 2001 everything would be okay. Then they make some modifications to that. Still nothing's said to them about the situation, and they have that amendment approved, and they go on and build. I think that was a special circumstance and conditions that really isn't the result of the application per se, but I do make the note that any time you amend it, you should be submitting current, up-to-date information. CHAIRMAN RAUTIO: And that would probably include a site visit and some engineering -- MR. BELLOWS: That's correct. CHAIRMAN RAUTIO' -- review and that type of a thing. MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: And you would somewhat expect that -- as a staff member who would review these things? MR. BELLOWS: A site development person on staff probably would not go out and visit the site. CHAIRMAN RAUTIO: No, I mean to be submitted. MR. BELLOWS: Yes. COMMISSIONER RICHARDSON: I'd just ask the attorney then. I want to make sure that economic considerations are not part of our deliberation as far as this variance is concerned. Is that -- can you give us any guidance on this? MS. STUDENT: Well, I can tell you that in a variance situation the cases tell us if there's a wall or smaller structure, you know, they have to be moved, and larger structures such as this, there's -- and the research that I've done, there was a dearth of anything about what to do. But in a similar situation where you have a trespass, whether there's a building that encroaches on someone else's property, the courts do not like economic waste; that means making the person tear down a building. And they will order them to pay damages to the property owner where the building encroaches on to somebody else's Page 16 September 7, 2001 property. And I know that, you know, that doesn't necessarily help us here. I think in terms of the criteria, you know, the language is broad. And it's up to the Commission to apply the facts to the criteria as it's presented, you know, to the board. COMMISSIONER RICHARDSON: Thank you. CHAIRMAN RAUTIO: Any further questions to the staff?. COMMISSIONER PEDONE: Yes. I have one more. Mr. Bellows, if the variance is not granted, what would the remedy be? Do we know? MR. BELLOWS: It would depend on what the Board of County Commissioners would make as a recommendation. It could include tearing a portion of the building to make it conforming, or it could be some kind of fine for code enforcement to handle. If they find it was a problem with the survey, they could send a letter to licensing board notifying that there was an error on how the survey was submitted. It depends on how we tell -- or how severe they want to treat the variance. COMMISSIONER PEDONE: Thank you. CHAIRMAN RAUTIO- When you're only referring to a surveyor as a licensed person who might be impacted by what the Board of County Commissioners says, not the contractor, or an engineer. MR. BELLOWS: They could make some recommendation toward that. It's really up to the board. CHAIRMAN RAUTIO: Thank you for clarifying that. COMMISSIONER ABERNATHY: And, Marjorie, what you're say is uh-- MS. STUDENT: I'm saying it's open signs and, you know, smaller structures -- COMMISSIONER ABERNATHY: I heard all that. MS. STUDENT: -- people have had to move. In the case of-- Page 17 September 7, 2001 and this is a different matter. It's a trespass matter where there are buildings that encroach. The courts don't favor -- that's not to say they wouldn't make somebody tear a building down, but they don't favor economic waste, the idea of ripping down a structure when damages can be paid to the neighboring property owner for the trespass. COMMISSIONER ABERNATHY: That was my question, that which ever way we and the County Commission resolve this would not affect a possible civil action? MS. STUDENT: That's correct. CHAIRMAN RAUTIO: Any further questions? I believe it's time to hear from the petitioners. I said the whole packet. We'll pass it down and address -- thank yOU. MR. PRITT: Good morning, Madam Chair, members of the Planning Commission. My name is Robert Pritt of the law firm of Roetzel and Andress in Naples, 850 Park Shore Drive. I'm here on behalf of Shader-Lombardo, LLC, the applicant and the developer of the second phase of Vanderbilt Villas. I have with me today David Lombardo, who is going to testify and answer some of your questions that you have raised -- not necessarily in that order. We might have him go last if it's all right with you. David Rosenberg is co-counsel. He may or may not testify depending on whether or not you have questions concerning title matters and real estate. Mr. Kepple, Terry Kepple is here. He's the engineer, and he's going to explain the situation and answer a lot of the questions that you've already asked Mr. Bellows. And Mr. Allen is the surveyor, and he's also here to testify and answer any questions. I have passed out a packet of information that we had sent to your staff several days ago, ten days ago I guess it was -- nine days ago. And it's being passed out to you. A lot of the information is the Page 18 September 7, 2001 same or similar information to that you already have on record and that Mr. Bellows has discussed. However, at the time we were not sure what he was going present to you, so in the abundance of caution, we presented that. COMMISSIONER ABERNATHY: Is this recently discovered information? Is this recently or newly discovered information? MR. PRITT: It's not newly discovered, but it was duly submitted to your staff in a timely manner. COMMISSIONER ABERNATHY: Well, it could have been submitted to us as well in advance of the hearing. MR. PRITT: Well, as a matter of fact, I asked whether or not that was going to be done, and that has been in the hands of your staff. COMMISSIONER ABERNATHY: Could have been done by yOLl. MR. PRITT: No. Your rules say that we're supposed to submit those to staff, sir. COMMISSIONER ABERNATHY: It's very hard to assimilate it now while you're talking. MR. PRITT: I do not disagree with you, but we submitted that in the manner that we were supposed to submit it in. CHAIRMAN RAUTIO: Along that line, the building permit history report that we have here is dated the 31st of August? MR. PRITT: Yes. CHAIRMAN RAUTIO: Did that come from your download computer -- MR. PRITT: Yes. We got that download. CHAIRMAN RAUTIO: Remember, you must let us finish the sentence so the clerk of the court can do it and we don't talk over each other. Thank you. COMMISSIONER RICHARDSON: Perhaps you could point Page 19 September 7, 2001 out what's relevant in this package for us. MR. PRITT: Okay. IfI may, I'd like to go through a presentation and point out to you what I think is relevant on the matters that are before you. I think that the most relevant information -- and we're going to have testimony from the parties on this -- has to do with the history of this document right here. Mr. Bellows has given that to you, and that is an outline of the current building, Vanderbilt Villas Phase 1 building, showing the outline of the walls as presented in your approved site development plan. This is a site development plan that has been on your records, in your files, since at least 1990. Now, Mr. Lombardo's property has undergone at least a hundred inspections and plan reviews. I presume that the previous property -- the previous development underwent a similar number of reviews -- plan reviews and site development visits and so on. And the interpretation of what was built at the time in 1990 for Phase 1 is as you see in the yellow part of the your outline. Now, there was some speculation by this board and speculation by Mr. Bellows and we have speculated as to how it came that Vanderbilt Villas Unit 1 is not built in accordance with the county's approved site development plan. It is, in fact, Vanderbilt Villas Unit 1 that is the encroaching structure. It is not Unit 2. (Laughter from the audience.) MR. PRITT: And I will ask the members of audience to keep their mouths shut and to not interfere with my presentation. COMMISSIONER RICHARDSON: Perhaps you can leave that decorum issue to the chair and not to you as a presenter. CHAIRMAN RAUTIO: That would be my prerogative -- MR. PRITT: I just want to make sure that that is on the record. CHAIRMAN RAUTIO: I would like to warn the audience that as a courtesy to the presenters that we do not have outbursts, and please do not laugh. Just listen very carefully so that we can maintain Page 20 September 7, 2001 a friendly decorum here. MR. PRITT: Thank you. It is about as basic a principle as there can be that a building is to be built in accordance with the approved site development plan. If not, than what are we here for? What is the -- of what value are the rules? Of what value are the regulations? That's the whole essence of what you are doing, not just on this board, but the County Commissioners is to have rules and regulations and then have the buildings built in accordance with the rules and regulations. As a matter of fact, that's a part of the criticism that's being leveled, I think, even from the dais concerning Unit 2. But let's take a look at Unit 1. It was not, for whatever reason, built in accordance with the approved site development plan. The extra walkways that you see in red here -- it's pink on the paper; it might be red up there -- but these extra walkways and embellishments and so on are not shown in that site plan. Now, I'm not going to stand here and accuse the staff of doing anything improper or incorrect. I actually believe that this was a conscious interpretation that was made consistently in 1990, and I think it was even one that was made in the year 2000 when Vanderbilt Village Unit 2 came into play. And I think that -- and it was rather than it just not being lack of information, I think it was a conscious interpretation. Now, we can speculate on that, but I think that's really the heart of it as to how we got here in this situation. And we'll have some testimony as to how it has been done in this county, and how it has been done out in the field that I think we'll indicate to you that I'm not just making this up. So I would ask that you keep your minds open in this quasi-judicial proceeding until you've heard all of the testimony and take that into consideration. Now, I would like to ask-- I would like to go to the PUD Page 21 September 7, 2001 document itself. I'm not sure I know how to use this -- just put it on there as an overhead? And this is mentioned in the staff report -- by the way, we agree with most of the staff report except for the conclusions of the staff report. Yes, ma'am. CHAIRMAN RAUTIO: Just for curiosity, could you say what page that is? MR. PRITT: Yes. I'm turning to page 6, and this is the same document -- CHAIRMAN RAUTIO: Thank you. MR. PRITT: -- that Mr. Bellows used a moment ago. And this is the PUD. I know I need not tell this Planning Commission that a PUD is an ordinance. A PUD has equal dignity with anything else in the Land Development Code. It is an ordinance. The Land Development Code is an ordinance, and when you're looking at PUDs -- we have a lot of them here in Collier County. And when you're looking at PUD, you're looking at zoning criteria that may not be the same as you would apply generally elsewhere, but you do apply it because it is an ordinance that applies within the boundaries of this particular PUD. In this one -- and part of problem with PUDs -- and you probably know this, but part of the problem with PUDs is they are written up by people sometimes other than county staff-- who are, frankly, the best at writing this up. They are written up by outside persons by -- usually by lawyers, by people who are in a particular business but not necessarily consistent with the code, but then, again, once it is adopted it has what we call in law equal dignity. And I think Marjorie Student would agree with that concept, but you can ask her. It has equal dignity with any other zoning ordinance. Looking here at the development standards, it says, (as read): "Minimum setbacks, no principal structure -- no principal structure shall be closer than 40 feet," and then when it gets to minimum Page 22 September 7, 2001 distance between structures it again says, "principal structures." If you look at the staff report on page 1, "Purpose/description for variance," it says on line 1, 2, 3 -- Line 3 it starts, (as read): "The Vanderbilt Villas PUD document currently requires the distance between structures to be a minimum of 20 feet." Well, in this particular PUD it states, "distance between principal structures." Know, for -- in this particular PUD, I believe that it was consistently applied that principal structures -- which, by the way is undefined in your Land Development Code. Structures is defined, but principal structures is not -- that the intention was, in this particular PUD, by the developer who is a Mr. LaGrasta -- and there's a reference to his intent at the very beginning at this same PUD ordinance on page 1 -- I think it's page 1. Anyhow, the point is, you look to his intent at the time that this was drafted, and it's very obvious that the intent, at least to the drafter, is that -- or the original developer -- is that the measurement would be between the yellow portion that you saw rather than the pink portion that you saw. And proof of that is the fact that the building was constructed -- I'm talking about Unit 1 again -- was constructed, and the site development plan shows and showed the distance being between the walls of structure rather than the stairways and so on. So that was done by the person who created the development and presumably the documents, and when he developed Unit 1, that's how he did it. And I think that was the intention for -- throughout as to how that would be measured for Unit 1 and Unit 2 because it was then sold to -- Unit 2 property was sold to Mr. Lombardo's firm, and the measurements were done consistently with that. So, anyhow, I would ask you to keep in mind that that is what the term "principal structure" in this particular PUD ordinance -- not like any other PUD ordinance, not necessarily like the Land Development Code -- in this particular one I think that was the intent. Page 23 September 7, 2001 And that may explain how everyone in good faith -- probably in good faith -- the county in good faith, the developer of Unit 1 in good faith, and certainly the developer of Unit 2 in good faith got to this point. COMMISSIONER RICHARDSON: Would you entertain any questions along the way? MR. PRITT: Yes, sir. CHAIRMAN RICHARDSON: Speaking of the -- MR. PRITT: I'm not sure I can answer. I may have to ask Mr. Kepple to get into it. COMMISSIONER RICHARDSON: That's fine. In terms of the intent of the building of Building 1, then it's your contention that he only intended to build the portion of the structure that we see that's in yellow? MR. PRITT: No. I think that -- no. That's a good question, and maybe I wasn't clear enough about it. I think he intended to build it the way it was built. But I think that the interpretation that was done at that time was that that was not part of the principal structure, even though it's a part of the structure, was not part of the principal structure. And that explains how we got to the point of that measurement and the approved site development plan being measured from the outside wall. COMMISSIONER RICHARDSON: I see this as a distinction without a difference, and perhaps Marjorie can help us. It seems to me to be pretty clear that the former owner and developer had to get some access and egress from the first floor to the second floor. I mean, if you didn't build a stairwell, it would be very difficult for the people on the second level to have access to their property. So it seems kind of obvious that the building that he intended to build under this PUD is the building that includes the orange or red portion that you've outlined. So the issue then is principal structure versus, if you will, how it's labeled. Page 24 September 7, 2001 Marjorie, do you have few ... MS. STUDENT: Well, I -- I have an opinion, and I ask-- you know, based on discussions of this matter with staff, and I'll ask them if they are in agreement with that. But it's my understanding this is more of a planning question, but when you have a covered stair area, that that is part of the structure. And since the structure is the principal structure, it would seem to me that that would be part of the principal structure. Now, I'm going to defer to staff, but that's my understanding and, correct me if I'm wrong. CHAIRMAN RAUTIO: And I'd like you to put the yellow and orange highlight photo back on the visualizer, please. MS. MURRAY: We agree with that. Even though principal structure isn't defined, I did look up accessory use or structure, and, ironically, it does say that (as read): "where a building is attached to the principal structure, it shall be considered a part thereof and not an accessory building except as provided for elsewhere." It might be -- I don't know, Marjorie, if I'm along the same lines that you're talking about, but I just wanted to throw that in. MS. STUDENT: Well, it is attached, and I believe it is under a common roof. MS. MURRAY: That's my understanding. CHAIRMAN RAUTIO: And just for a point of clarification, the yellow portion of this, there is some indication there would be a stairwell? I want staff to clarify that. When you look at this drawing and approve it, the assumption is there's some sort of indentation or something that a stairwell's going to be there prior to our having the orange portion added to this particular plan with this building. MR. BELLOWS: Well, the site development plan for Building 1 would have shown the staircase and access walk also at some point. Page 25 September 7, 2001 They wouldn't just show the outside wall of the building. So I assume there was some intent to have the staircases shown as the final approvals for part of the SDP approval. CHAIRMAN RAUTIO: Okay. And to follow my point then, if we did not see the orange or red outlined portion there that were not on our map at the moment or plan at the moment, would you know that there were stairwells there? MR. BELLOWS: I don't see how. CHAIRMAN RAUTIO: Thank you. MR. PRITT: I would like to follow up on that. You cannot tell -- Mr. Bellows, if I may? You cannot tell from the yellow part just looking at a piece of paper, which is the approved site development plan -- I think we agree with that; right? MR. BELLOWS: Yes. MR. PRITT: Looking at that you cannot tell whether that would have interior stairwells or exterior stairwells; right? There's nothing that you can tell one way or the other on. MR. BELLOWS: That's what I briefly stated. CHAIRMAN RAUTIO: Therefore, if he couldn't tell, a person looking at the plan in the future might have to determine if there's something already there. COMMISSIONER RICHARDSON: You might have to actually go out and look. CHAIRMAN RAUTIO: Mr. Richardson. MR. PRITT: I understand your point. But you have to understand, what you are always about is making sure -- I say you -- what the county is always about in these things is making sure that buildings are, in fact, constructed in accordance with approved plans. That's about as basic as you can be. And Building 1 is not built in accordance with the approved site development plan. It just isn't. And that's the point. Page 26 September 7, 2001 Now, am I standing up here saying that they should tear down Building 1 ? No. I'm standing here saying that there are some equities involved here that you need to consider that go back to interpretations that were made -- probably logical interpretations may not be made under the general Land Development Code structure definitions and so on today -- but with regard to this matter and the definition of this PUD and the use of the term "principal structure," it's very logical that this could happen. We're asking for your consideration for recommendation that these criteria have been met, and if I may go through -- and I'll try to be more brief because that's kind of a major point -- but if I could go through a couple of the other things on the staff report and respond to them, I would like the opportunity to do that. The -- so the point is is I think that there was a change in interpretation, and the change in interpretation really came, I think, after the building was built. I think the records are pretty clear on that, and we think that this gives a reason and a rationale for you to be able to recommend granting the relief. Page 2A, there's a-- there's a-- see on the top there, the -- I'm sorry, on No. 2A, page 4. Our point there is that this does make for the special circumstances, a special conditions and circumstances that are peculiar to the structure. So if you look at that -- if you look at that -- and I know that you've asked Mr. Bellows questions about that under A, it says (as read): "Are there special conditions and circumstances exist peculiar to the location, size, and characteristics of the land structure and building involved," and then the last sentence says (as read): "Based on these unusual circumstances, there may be some justification for giving special consideration to this property." And, again, this is a variance request, and you are open to -- if you see fit to find that those special circumstances do exist. Page 27 September 7, 2001 Now, even if you were to agree with the interpretation that we say is consistently applied since 1990, it's very easy to see how the county staff as well as subsequent purchasers and developers relied on the wall-to-wall measurement, and we're going to have some testimony on that in a moment. On page -- I'm sorry, on 3B -- page 3, No. B, we agree that there are special circumstances which are not resolved at the action of the applicant, such as pre-existing conditions relative to the property. We agree with the staff report on that, and I think you heard testimony from Mr. Bellows and my statements also that support that. Will a literal interpretation of the provisions of this Land Development Code work unnecessary and undue hardship on the applicant? Yes, absolutely yes. And we feel that it's a hardship to tear down a portion of the building. This is a cost-- the building cost was -- project cost that Mr. Lombardo can testify to if he wishes, but we're talking about $150,000 plus in fees and application fees, the permit applications and so on, inspections. And I think I mentioned that there had been at least 90 entries concerning inspections and plan reviews that have been done. The construction cost is over two-and- a-half million, somewhere around those numbers, and he can testify if he wishes on that or not. And it would be an extreme hardship to have to tear this building down. Not only that -- and I would say this to the neighbors in Vanderbilt Unit 1 as well as to this commission. It would really be ugly to have to do that, and I am not sure that everybody's thought that through, the esthetics of it. But I know that the Commission is concerned with the esthetics, and so we urge you to find that that is there. On page 4, No. F, it says (as read): "Would a granting of the variance be in harmony of the general intent and purpose of this Land Development Code and not be injurious to the neighborhood?" And I Page 28 September 7, 2001 think that if you look at the staff report carefully, it says that (as read): "staff is of the opinion that the granting of the variance will not be in keeping with the general intent of the purpose; however, it is unlikely that any detriment of the public welfare would result in its improvement since the outside wall of Building 2 was improved to meet fire safety requirements; therefore, the proposed variance will not be injurious to the neighborhood." So it's a little bit of a contradictory statement. I think I understand what the staff was saying on that, but truly not going to be harmful to the neighborhood. And I guess the last thing I would say -- CHAIRMAN RAUTIO: Excuse me -- MR. PRITT: -- is we disagree with the staff recommendation. Yes, ma'am. CHAIRMAN RAUTIO: Okay. Before you leave, No. F, you left out the statement that says (as read): "in addition, the proposed after-the-fact variance might have some adverse impact on the circulation of light and air between the stairway and Building No. 2." You didn't bring attention to that, and that to me from my site visit is important, and I need some additional comments from some of your professionals about that. But we'll save that for a little bit longer. MR. PRITT: I'll ask them to do that, but I think that your staff indicated that that's not a consideration in the PUD setback document -- in the PUD document. CHAIRMAN RAUTIO: Not specifically in words. MR. PRITT: Right. CHAIRMAN RAUTIO: Thank you. MR. PRITT: The PUD ordinance is not having a provision for that, light and air, but what happened for prior purposes, as I think you know, they did have to spend quite a bit more money Page 29 September 7, 2001 fireproofing that. CHAIRMAN RAUTIO: Right. And I just want to make sure that it's understood that the words are not in the PUD document, but the concept of the 20-foot setback has that as an understood planning approach in my opinion. I just want that clarified both from your side and from the county's side. Thank you. COMMISSIONER PRIDDY: Madam chairman. CHAIRMAN RAUTIO: Yes, sir. COMMISSIONER PRIDDY: I have a question. Sir, you started off your presentation -- and I'm going to keep an open mind like you asked us to -- MR. PRITT: Thank you. COMMISSIONER PRIDDY: You started off your presentation with basically stating that your client's project is okay, and there's nothing wrong with it, that it's Building 1 that's -- in effect that needs to be here applying for a variance. Yet you've moved off of that what seemed to be a pretty logical approach to, you know, defending what your client's done. What would you have us do with Building 1 ? MR. PRITT: We're not asking for anything to be done with Building 1, sir. We ask -- in a nutshell what we're asking is let Building 1 be and let Building 2 be. COMMISSIONER PRIDDY: Okay. But you seem to have two -- going down two roads at once here. We started with the defense that it's not you-ali's problem; it's Building l's problem that built in the wrong place. I mean, it would seem that you would want to stick with -- MR. PRITT: Any time you're talking about a setback, you're talking about a setback from what? And in this case you're talking about setback between buildings, and a lot of testimony from Mr. Bellows and your discussions and your questions were pointed at the fact -- or assumed that Building 1 was built in accordance with the Page 30 September 7, 2001 approved site development plan, and I'm just pointing out that when you're talking about building between the two buildings, people logically-- possibly logically and with valid interpretations, including possibly and probably county staff looked at it the same way and found that there was not a setback problem. I'm talking about based upon the 1990 building height -- or building footprint, so it could have been very logical in 1990, and it could be very logical in 2000 that the building -- the interpretation that was done consistently until very, very recently was -- the interpretation was that these buildings are okay. CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE: I noticed on the original site plan it shows the building to be 56 feet wide -- the original building. Has anybody measured it to see whether the 56 feet included the stairwell or walkway or not? MR. PRITT: I don't know. I'd have to have you ask Mr. Kepple -- Terry Kepple -- I would ask that if you have questions on the technical aspects of it if I could have Mr. Kepple testify. CHAIRMAN RAUTIO: That would be good. Are you -- were just concluding that you don't agree with the staff recommendation -- MR. PRITT: You talked about the constrained language and so on, but I think that this is a very difficult case from the standpoint of how something got to be where it got to be. And there are two logical positions. One logical position is that there is no setback problem based upon the 19 -- based upon the PUD. And, secondly, that if there is a setback problem, we understand how it got to be that problem, and, therefore, relief ought to be granted. CHAIRMAN RAUTIO: I appreciate your presentation, but I also appreciate the fact that when I'm speaking I'd like to finish my sentences, sir. We gave you the courtesy from this -- MR. PRITT: I thought you had. Page 31 September 7, 2001 MR. ABERNATHY: You just did it again. CHAIRMAN RAUTIO: You just did it again, sir, and as the chair I would greatly appreciate you letting myself or any other commissioner finish a statement before you start talking. And that goes for the rest of the people presenting and for the other side. I would like to remind you that that's part of the courtesy of this proceeding. Thank you. MR. PRITT: I apologize and ask you to maintain an open mind. CHAIRMAN RAUTIO: My mind is open. Okay. The next portion of the presentation. MR. KEPPLE: Good morning. For the record, Terrence Kepple, Kepple Engineering. I am the site engineer on this project. I did permit the SDP through the revision process. You've asked several questions along the way that I also asked myself up front when I was preparing the revised site plan. And I'll go through some of the process that I went through to prepare my site plan, if I may. Initially, I was contracted to provide an updated site plan to bring it up to current codes and to provide for the number of units that were constructed. I went to the county records. I researched the original PUD. I researched the original SDP for the project. The PUD information for setbacks and what not you've been given. I worked with those. I pulled out the original plans that I could find for Building 1 the spot survey for Building 1 that shows the size and location for Building 1, and I pulled out the SDP preliminary and final for the entire project, which showed the existing Building 1 and the second building. Those -- the surveys and SDPs that were done for the original building -- let me back up just a second. The original building -- ! do not believe -- was under an SDP. That was prior to 1989. Permitting and the site planning came in-- straight through the Page 32 September 7, 2001 building permit with Building 1. It was required to have a spot survey. That spot survey was in the file. It showed the principal structure without any appurtenances on it; stairways, walkways, anything of that nature, which is normal for a spot survey. ! would show the slab of the building and principal foundation for the building. Took it. ! overlaid it on the original SDP that was done to show the Building 1 and Building 2 that was done by another engineer back in 1990. That was also done for the original developer that built Building 1. The spot survey laid almost exactly over where the SDP showed Building 1. Neither showed any stairways, walkways, anything of that nature. I then proceeded to put the revised Building 2 on the site plan. Of course, it was brought up to current building codes, access codes, everything of that nature. I overlaid it, and it basically fit within the footprint that was done for the Building 2 back in 1990. There were some stairways on Building 2, the new building, that were not shown on the building in 1990. I did show those. And I did move it slightly away from Building 1 because there was now a phase boundary between the two buildings. Phase 1, Building 1 was a condominium by itself. When it was created, it created a boundary line between the two phases. I moved Building 2 sufficiently far -- I believe it was about a foot-and-a-half, two feet from that boundary line to make sure that it could be constructed with footers or whatever, that it would not encroach across the phase boundary line. COMMISSIONER ABERNATHY: Mr. Kepple, you haven't said, but can we assume that you visited the site somewhere along the way? MR. KEPPLE: Yes, sir. If I may, I did the site plan first, then I went to the site. Without a plan to look at and try to make things Page 33 September 7, 2001 work, I usually go to the site after I do at least a preliminary site plan. COMMISSIONER ABERNATHY: Okay. MR. KEPPLE: This one having an existing building, that's why I went through the other process first. CHAIRMAN RAUTIO: And after you visited the site I would assume you would have noticed that there was a roof over the stairwells there -- MR. KEPPLE: A roof over the stairwells, a roof over the walkway. I did go back to the code. There is provisions in the code that certain parts of the buildings can overhang setback; bay window, covered walkways up to three feet, unroofed stairways, those can encroach across a setback. Talking about front, side, and rear setback; not building-to-building setback because that's a separate matter. But they are allowed to cross setback boundaries. Looking at where those appendages, if you would, on a building can overhang a setback, and then now I do have a definition of a roofed walkway that can overhang a walkway up to three feet. If the walkway can overhang a setback, is it part of a principal structure, or is it an accessory or an appendage to that principal structure? There's no definition in the code. I looked at it. The best I can tell is now we're talking about an accessory structure, if you would, attached to the principal structure or an appendage attached to the principal structure. That's the walkway. Now, if the walkway is an appendage, it is separated from the principal structure -- it separates -- I'm sorry -- it separates the principal structure from the stairway, what -- does that make the stairway another principal structure because now we've got an appendage in between, or is it also an appendage to the principal structure. CHAIRMAN RAUTIO: That's a good point -- Excuse me, Mr. Abernathy -- but would you not have a discussion with staff if there Page 34 September 7, 2001 was any question in your mind of the interpretation? Would that not be something you as a licensed engineer would do, like, automatically? MR. KEPPLE: I have had discussions with staff regarding covered walkways before. Specifically on this one, no, because at that point it was pretty clear in my mind that we were talking as far as a principal structure -- structure to principal structure -- 20 feet was what the code said. CHAIRMAN RAUTIO: But I think you said unroofed versus roofed. MR. KEPPLE: Well-- CHAIRMAN RAUTIO: Did you not just say unroofed? MR. KEPPLE: An unroofed can encroach across setback. A roofed walkway can encroach across setback line. Does that make it a principal structure or an appendage or secondary structure? CHAIRMAN RAUTIO: I'm not sure. MR. KEPPLE: I don't know. The code is not clear on it. CHAIRMAN RAUTIO: Mrs. Young has a question too. I'm sorry. COMMISSIONER YOUNG: I'm truly perplexed that you could go there and see the site and observe that you were encroaching some 60 percent of the required 20-feet setback. MR. KEPPLE: The question really comes down to principal structure. I have -- had reviewed the code. The principal structure, in my mind, was the building wall, not the stairway. And I did send out a separate surveyor to make sure that we did not encroach on that 20 feet. COMMISSIONER YOUNG: And you didn't feel it necessary to discuss this with staff and see if there was a problem there? MR. KEPPLE: After my research into the records of the county showing the spot survey of the principal structure did not show Page 35 September 7, 2001 stairways, the SDP did not show stairways, no, I did not feel it necessary to talk to staff. CHAIRMAN RAUTIO: Commissioner Abemathy. COMMISSIONER ABERNATHY: That sounds like that's the crux of it. You were going to take advantage of the fact that the stairways weren't shown on the SDP. MR. KEPPLE: To say that I was trying to take advantage, no, sir, that's not correct. At that point I was satisfied that the principal structure was that the building wall itself, not the stairway. COMMISSIONER ABERNATHY: Well, if you were agonizing over this philosophical problem of definitions or whatnot, what was driving you to put the building as close as you did? You're starting-- you're designing a building. Had you been told to squeeze every possible ounce out of it as you could or there was a certain number of units of a certain number of square feet? Why not resolve it in favor on the conservative side? If it's a close question, pull that wall back, and you have no possible problem. MR. KEPPLE: To tell you I was agonizing, I would say that's not the correct term. I was -- well -- COMMISSIONER ABERNATHY: Well, we're all agonizing over it now. MR. KEPPLE: Yes, we are. Absolutely. We're agonizing over it now. And in hindsight I would have spoken to staff, 20-20 hindsight. However, at that point I was satisfied that the intent of the "principal structure" term meant the wall of the existing building to the wall of the new building. CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE: Yeah. I had asked a question of the previous speaker, and maybe you can answer it. Has anyone measured the existing building No. 1 ? Is it 56 feet deep including the stairwell or without it? Page 36 September 7, 2001 MR. KEPPLE: No. I believe -- let me just pull the spot survey out real quick. It's 56 feet excluding the stairway and walkway. COMMISSIONER PEDONE: So the site development plan for Building No. 1 shows that building as a 56-foot wide or deep building, but it was built larger than that. MR. KEPPLE: Yes, sir. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: Thank you for your testimony here. I'm looking at your work, the site plan for Vanderbilt Villas. This is dated 2/26/2000. And I note just what you said about making a little bit of a setback from the property lines of the Condo 1 and what you've engineered here. But I'm also looking on this document, and I see you have a section called "zoning," and you describe what's on each side of it as you would normally do, and then you have a section called "setbacks." And you have a column that says, "What's required," and you have a column that says, "What's been provided." And the critical item is that says what's required between buildings is 20 feet. What's been provided is 7 foot 9 inches. That sounds to me like you're hoisted on your own petard. MR. KEPPLE: That, sir, is an exhibit -- COMMISSIONER RICHARDSON: No. This is your -- MR. KEPPLE: Yes, sir. COMMISSIONER RICHARDSON: -- signed and sealed submission. MR. KEPPLE: Prepared specifically for this variance request. The SDP does not have that information on it, the approved site development plan. That is a site plan prepared specifically for this variance request. COMMISSIONER RICHARDSON: So your variance request Page 37 September 7, 2001 goes back to the year 2000? I thought this was 2001. Where am I? This must be Kansas. 2/26/2000 is when this issue first came up? MR. KEPPLE: No, sir. If that date is what is stated, that's an incorrect date on there. CHAIRMAN RAUTIO: That's an incorrect date? MR. KEPPLE: The 2/26/00, if that's the date that's on the ... CHAIRMAN RAUTIO: On my copy it certainly is. COMMISSIONER YOUNG: If I'm looking at the right thing. COMMISSIONER RICHARDSON: At this point I'm very confused. MR. KEPPLE: Computers are great things. This document was prepared specifically for the variance petition. It was not prepared for the site development plan amendment to county staff. What I did was I copied from the computer my site development plan on to a separate drawing. I created this development and, unfortunately, I did not change the date when it was prepared. That is the date I prepared the original SDP for the site plan. CHAIRMAN RAUTIO: That does make some sense; however, one would want to be pretty accurate when you're checking these types of-- MR. KEPPLE: I agree. Unfortunately, I missed it. COMMISSIONER RICHARDSON: Okay. MR. KEPPLE: There was one other question about -- there was some questions along the line about the gravel along the side of the building. I'm not totally aware of the gravel, although I have seen it, but I do know that Mr. Lombardo has put in additional drainage between the two buildings to pick up ground water between the two buildings so that there would not be any standing water between the two buildings. That was done as an amendment to the SDP during construction to alleviate any concern about standing water between the two Page 38 September 7, 2001 buildings. CHAIRMAN RAUTIO: How long ago would that installation have occurred? Do you recall -- MR. KEPPLE: When the building was about half complete I would say. CHAIRMAN RAUTIO: Do you care to describe what kind of retention that you installed? MR. KFJPPLE: Not retention. I believe that there's a -- CHAIRMAN RAUTIO: Drainage? MR. KEPPLE: Just a moment-- CHAIRMAN RAUTIO: It wouldn't qualify for retention. I would assume it would qualify for drainage. MR. KEPPLE: Yes, ma'am. I amended the SDP October 3rd of 2000 to add a yard drain, and that yard drain is an eight-inch PVC drain and three-fourths small catch basins to collect the drainage between the two buildings. CHAIRMAN RAUTIO: Four small catch basins plastic in nature. MR. KEPPLE: They are ABS plastic, yes, ma'am. CHAIRMAN RAUTIO: And do you have any black pipe that you put in there to facilitate the drainage? MR. KEPPLE: There's pipe between the catch basins that goes to the master drainage system in the parking lot. CHAIRMAN RAUTIO: Which is the eight-inch PVC? MR. KEPPLE: Yes, ma'am. CHAIRMAN RAUTIO: Because I did look at that, and I have some background in that particular area of construction, and I was surprised at what I saw. I might have to ask some further questions if we get into a point of elevation, and I'll save my questions. Thank you. MR. KEPPLE: Okay. I don't believe I've got anything else to Page 39 September 7, 2001 add at this point. If there's any other questions? CHAIRMAN RAUTIO: Do we have any further questions of I think we have another issue of-- another Mr. Kepple? Okay. presenter, yes. MR. ALLEN: My name is Mark Allen. I'm a licensed surveyor in the State of Florida. I've been doing surveys here for many years. My dad was Bill Allen who did the foundation on that. He's deceased. And I was hired by Thumer Construction by Mr. Lombardo to lay out the two buildings in Phase 2, and I was issued a plan to work by or from. I have that original plan here, and we laid out the building, and if you'd be patient with me, what I'd like to is go through the steps. I feel like the whole problem here is a timing thing. That seems to be the whole conflict is how this all came about, and maybe I can help with that. So Mr. Thurner hired me to lay out these buildings, and if you look at the site plan that was done by Mr. Kepple, it shows -- may I step over here? CHAIRMAN RAUTIO: Right. And please use the microphone right there. MR. ALLEN: Yes. CHAIRMAN RAUTIO: You have to speak into the microphone. If he puts that up, does that become the property of the Planning Commission, Marjorie? MS. STUDENT: I beg your pardon? CHAIRMAN RAUTIO: If he places that up there, does that become part of our record? MS. STUDENT: Part of the record. CHAIRMAN RAUTIO: Is that an original -- MR. ALLEN: This is my original. This is my worksheet. It's one of a kind. It's what I use to lay the building out. I really do -- you can make copies, but I don't really want to give it up. It is an Page 40 September 7, 2001 original. CHAIRMAN RAUTIO: Is it satisfactory to have him make a copy of it and put it in the record? MS. STUDENT: I think that would be satisfactory in light of the fact that he doesn't have a copy with him and it's the only one he has. MR. ALLEN: It's the only one -- it's the original. CHAIRMAN RAUTIO: Thank you. Just so you knew that. MR. ALLEN: Well, I may need it for future use. CHAIRMAN RAUTIO: I assumed you would. MR. ALLEN: What we have here is the two buildings as shown on this drawings, which are on my drawing here, and you notice there's a dimension from the property line here in the front, which is not on this -- it's not on this plan because this is the drainage plan, but on my plan it asked me to do 42.3 feet from the boundary line to the property line. In this corner you can see the dimension's line here, but you cannot read the dimension. That dimension is 51.4 feet on my drawing, and you can see the dimension here, but -- and it's from the wall line to the property line, and you can't read it on this drawing, but you can on mine. You'll notice up top the dimension from the property line to the building line is 55.7 feet from here to the wall line. In laying this out, you notice that it doesn't tell me whether the building is parallel. I only have one, two, three dimensions that are solid to lot lines. And that's where I begin is from the lot line. So I came in the 42 feet. I came in the 51 feet. I made the assumption that it was parallel. I went the length of the building. I had the 55.7. I turned the corner. I come across to lay out these buildings. We laid these buildings out, and when we got done, we didn't know where we were because there's not a dimension to the lot Page 41 September 7, 2001 line, the dividing line between boundaries. Now, when I worked for the building department, the spot survey is a survey that is done of the footprint of the building. It's a foundation. That's before the stairs, before the roof, before the overhead staircase; that is a foundation. If you notice on this drawing, it calls for 23 feet from the building to the building. At that point in time, when we laid out our field stakes, we measured 24.55 feet. So at that point, 24.55. So at that point I felt I had done the job. I had exceeded all the setbacks; I was in the right place. But I knew that the county would not accept a spot survey showing a distance between two buildings. They won't accept that. It must be from lot line to the wall line, period, or it's not accepted. So we didn't have a design dimension, so we measured the dimension, and I had 2.73 in this comer and 3.42 in this comer. So I was not, quote, encroaching. I was not over any boundary lines. I had the 24.55, which exceeded the 23. I had my property dimension here, property dimension here, property dimension here. I had completed my mission. It was done. So, we lay this out. They went ahead and they did the foundation. They called us back and said that now we need a spot survey. That is a safety net the county uses from wall line to property line. We've been doing this for 35 years. As a matter of fact, my father, Bill Allen, coined the word "spot" -- that's where it came from -- for Collier County. That's been doing here since 1959 (sic) So, anyway, when I had my 23 feet -- or actually I exceeded that -- I felt that, gee, I had extra room, I was safe, I had not done anything wrong, I had done what I was asked to do. Then I was called back after the foundation was in. We went out and we measured the foundation. Everything was in place except I knew that Ed Perico and Johnnie Gebhardt would not except Page 42 September 7, 2001 dimension from building to building because they want to know lot line. They will not cross their desk. So we issued those dimensions on our spot survey. Time went on and time went on. And as a matter of fact, it was in -- you asked about the dimension of the -- Mr. Kepple and the staircases. We were later asked to go back and -- well, this was revised three different times, but we were asked to go in on March 5th of '01 because there seemed to be some concern about some staircases. And this was a year later. So we went back and we located these staircases, and we issued that to Mr. Kepple who issued it, apparently, to the planning board, and they said it's too close. At that point I didn't know what to say because I had met the criteria that was provided to me and approved by the county. I didn't know where to go now. So I think -- I think at this point the terminology -- basing the spot -- that was my dad's spot survey -- that was a wall line; it's a footprint. There's nothing overhead when we go on that site at that time. We would not -- have anything to measure to. We would not know whether it was true or correct because it's not there. It's not been constructed. We're still on the ground floor here. That's what the spot survey does. CHAIRMAN RAUTIO: I just want to clarify, when you are identifying the various distances that you were given to work with, did you miss that it said anything about a 20-foot separation from the buildings when you got to this point, the wall that's in question right now? Did you mention that you -- MR. ALLEN: I measured that dimension -- CHAIRMAN RAUTIO: Right. MR. ALLEN: -- to check myself because I had put in the field stakes. CHAIRMAN RAUTIO: Right. Page 43 September 7, 2001 MR. ALLEN: And to check myself. See, this building doesn't tell me whether it's parallel or not. I assumed it was. I made it parallel. And my checkout, to be sure that I was correct, was the 23 feet to the existing building, which is shown here on this drawing, which is shown right here on this drawing. And I measured-- field measured from the foundation to the building, and I had 24.55, which exceeds the 23. CHAIRMAN RAUTIO: And you're saying the 23 there, and I guess I'm looking at one dimension that says 22.9 and 18.5, but this was done specifically -- what I'm looking at so I can actually see what you're doing because I can't see from there or here -- MR. ALLEN: There were later dimensions on -- not on this drawing, but on a different drawing where we were requested to come back and locate the stairs on the other property because we don't go offsite to measure someone else's property. I'm working on my site, which is Phase 2, which is to the boundary line. And may I please address -- everybody keeps getting excited about the spot survey. Take Naples Park, for an example. They are all seven-and-a-half-foot setbacks. We measure from the wall line, principal structure to the lot line. We don't measure from building to building, eave to eave. If we did, we'd never have the criteria. So the principal structure for the spot survey is always the wall line. That's where we go. CHAIRMAN RAUTIO: I'm not sure that's exactly the way that code has been defined to us because of a covered stairwell attached to the building, but that's a good point to get clarified. Thank you. I appreciate you making that statement. MR. ALLEN: And what I'm saying is we never-- number one, when we do the spot survey, that's a foundation; there is no eave; there is no covered staircase; there is -- it's nonexistent. So how would we measure it? Page 44 September 7, 2001 CHAIRMAN RAUTIO: Well, it was existent on Building 1, and you're not going offsite to do anything to Building 1. MR. ALLEN: Yes, ma'am. I'm not concerned with that. I was concerned with the 23 feet because initially that was what held this whole building in position, the 23 feet. If I did not have 23 feet, then I would have to twist, turn, or made something else -- other alternate changes. And if you notice all -- every dimension on this drawing is to the lot line except this one. CHAIRMAN RAUTIO: And you probably have a surveyor's notebook where these dimensions were all written down -- MR. ALLEN: These are my field notes. This is where I marked it up on the map, and I have it right here, 24.55 measured. That's what we measured. At that point in time, we exceeded the dimension required, so I felt like I was comfortable in what I had done. CHAIRMAN RAUTIO: So that document right there is very significant -- MR. ALLEN: Yes, ma'am -- excuse me. CHAIRMAN RAUTIO: Go ahead. I'm finished. MR. ALLEN: I apologize. I'm sorry. CHAIRMAN RAUTIO: Okay. Any questions of Mr. Allen? Do we have any further presentation from the petitioner? Are you -- CHAIRMAN RAUTIO: Mr. Richardson, go ahead. COMMISSIONER RICHARDSON: I'm sure I heard all the words, but I'm not quite sure I understand that when you get to the end of the building, which would be the horseshoe part coming up right there (indicating), and you said that at that point you -- in order to determine that you had the proper setbacks that you measured from that line to something and got 20-some feet. What was the something you measured to? MR. ALLEN: I measured to what we feel is the principal Page 45 September 7, 2001 structure, the wall line. That's what we do in every case. COMMISSIONER RICHARDSON: So you actually measured, then, from the projected wall of Phase 2 to an existing building, you walked underneath the covered walkway -- the covered stairway -- went all the way over to where they enter the building, and, for your purposes, you ignored all the rest of the structure for your purposes? MR. ALLEN: Correct. COMMISSIONER RICHARDSON: Okay. That's all I wanted. CHAIRMAN RAUTIO: Next speaker? MR. LOMBARDO: Good morning. David Lombardo, Shader-Lombardo Investment Properties. I have a lot of questions myself. Item No. 1, I don't understand why we waited to the completion and CFO of these buildings before all of this was brought to this commission. During the construction I would think if I had a problem with the building being built, I would have called someone immediately about -- someone's attention, not when it's done. I have a CFO for these buildings, and now I am stopped. There's talk about tearing down a building, and I have a question for the Commission. If, in fact, Vanderbilt Villas built their stairway all the way over to the dividing line, does that mean I have to push my building 21 feet over? Say those stairways were even bigger and they took them out -- because they weren't shown on any plans or anything -- if they were larger and went out into the encroachments -- and I think they are encroaching. I'm not -- if they went out into the encroachment all the way over to property dividing land. Does that mean I would have to take 21 feet of my property to meet these requirements? COMMISSIONER ABERNATHY: Mr. Lombardo, we're here to take evidence and resolve the issue in front of us which is whether to grant you an after-the-fact variance. We're not here to answer your questions or anybody else's questions. Page 46 September 7, 2001 MR. LOMBARDO: Yes, sir. CHAIRMAN RAUTIO: Thank you, Mr. Abernathy. MR. LOMBARDO: When I purchased the existing PUD, I had the availability to construct 38 units. I only constructed 36 because of tightness of everything. The PUD clearly shows 20 feet from outside wall to outside wall, and I think that's the big determining factor here is where are we measuring from. Now we're measuring from stairwells and primary structures. We've heard a lot of testimony about that. And I also have had questions with staff about once a PUD's in place, is it not grandfathered in and throughout the approval process? I mean, if you approve a PUD and some years later another developer comes along and buys part of that, is he not buying all of the rights of the PUD? That's the question I have. Again, I have to question why we waited until the very end. I did have the drains installed in between the two buildings, so there's no standing water there. I also offered Vanderbilt Villas No. 1 other amenities to improve the whole site, as far as painting of the building, construction of landscaping to keep it uniform, improving the deck of the pool, and other things that we were talking about doing. We had an agreement written up. And then all of a sudden, that agreement fell by the wayside. So I have not been unreasonable with anybody, I don't believe. And you heard testimony about the two-hour fire rated wall, and there's been a lot of inspections. And I just have to have my fact (sic) that why are we waiting till the very end when all 36 units are already CFO'd and we're here before this Commission. I'm not asking the commission this question, but I'm asking just a general question. I would have approached someone right away. CHAIRMAN RAUTIO: I have a question. You're saying all of your units are CO'd that they could move in today? There are no red Page 47 September 7, 2001 tags? MR. LOMBARDO: There's no red tags, no, ma'am. CHAIRMAN RAUTIO: Mrs. Young has a question, sir. COMMISSIONER YOUNG: Mr. Lombardo, you feel that you are bringing this before us at the very last minute. In the course of construction of your expensive project, didn't some of your engineers, surveyors, or construction people draw your attention to the fact that you were getting mighty close? MR. LOMBARDO: I came into town at one time, and I saw the footings and how close they were. And they provided the spot survey, and they assured me we met the requirements of the 20-feet separation from outside wall to outside wall. CHAIRMAN RAUTIO: Any other questions of Mr. Lombardo? Do you have any further statement? MR. LOMBARDO: No, ma'am. CHAIRMAN RAUTIO: Okay. Thank you. MR. LOMBARDO: Thank you. CHAIRMAN RAUTIO: Do we need a break for the court reporter? COURT REPORTER: Five minutes. CHAIRMAN RAUTIO: Five-minute break. We'll take a five- minute break for the court reporter and then hear from the public. (A break was held.) CHAIRMAN RAUTIO: I would like to call this meeting back to order. We'd like to remind the audience that we have continued the items for the LDC Amendments, Land Development Code Amendments -- I believe those were Item J. That will be heard on -- the first time on the 19th of September at 5:05 in the Supervisor of Elections office. So if you're here for that particular item, we will not be covering it today. Page 48 September 7, 2001 Are we ready to listen to the first public speakers? Mr. Bellows. MR. BELLOWS: Before we start I'd just like to make one clarification -- or a couple points of clarification. One is the issue of the occupancy of the end units. The petitioner-- I discussed this with Ed Perico, Building Department Director. They are not issuing a certificate of occupancy for the end units till the variance issue is resolved. The petitioner has sent a letter and has agreed and is working with the building department on that matter. And there is no one that has a certificate of occupancy living in those end units until the variance issue is resolved. CHAIRMAN RAUTIO: Three units or-- MR. BELLOWS: Six units. CHAIRMAN RAUTIO: Six units. Thank you. Does that constitute a red tag or not? MR. BELLOWS: I don't think that constitutes a red tag. "Red tag" is generally a term applied to stopping construction. CHAIRMAN RAUTIO: Right. Okay. MR. BELLOWS: We also have David Hedrich from our planning staff. He has a copy of the survey that was submitted with the SDP amendment. I think it more clearly shows some of the events. David. MR. HEDRICH: Good morning. CHAIRMAN RAUTIO: Good morning. MR. HEDRICH: The spelling of the last name, Hedrich, H-e-d- r-i-c-h. I'm a planning technician with Planning Services. I was brought in on this initially. I conducted one of the first field checks after the complaint was made on this and subsequently gathered most of the files and findings and evidence presented where Ray Bellows -- he has brought it to today. One of the other items that hasn't been brought up or wasn't Page 49 September 7, 2001 brought up yet during all this was the spot survey that was submitted to the building department for Vanderbilt Villas 2. And I had-- this had caught my eye during the initial investigation before I turned it over to Ray Bellows. But this here -- and I'll try and get it on the monitor and move it around so everyone can see -- is the spot survey associated with the permit for the building of the villas listing the SDP number. And moving down a little ways -- if the camera's able to pick it up -- is the seal showing it has been certified, turned in, from Mark Allen's office. But the spot survey, again, as he had indicated clearly shows that the building has been put in its proper place, and there are no concerns over where it was placed, or how it was placed. At that time it was turned in, it shows clearly the new portion of Vanderbilt Villas 2 here (indicating), but there's also a footnote existing where Vanderbilt Villas 1 is indicating existing building not located. CHAIRMAN RAUTIO: And that footnote comes from the surveyor? MR. HEDRICH: Correct, not showing Vanderbilt Villas 1 at all. So, therefore, there was nothing for the reviewer of the spot surveys to catch their eye there might be a problem or separation between structures. COMMISSIONER RICHARDSON: Madam Chair? CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: I'm a little confused. We just heard Mr. Allen say that he actually measured from that comer to the wall of the Building 1 and indicated that on his spot survey. MR. HEDRICH: That very may well be, but the spot survey that was turned into the county for the building department for the permitting of Vanderbilt Villas 2 (sic). CHAIRMAN RAUTIO: Ms. Young, you have a question of Page 50 September 7, 2001 Mr. Hedrich? COMMISSIONER YOUNG: What is the date of this document? MR. HEDRICH: The date on this document is 10/4 of 2000. CHAIRMAN RAUTIO: Okay. And I think at some point Mr. Allen wanted to respond to the statement made, so we'd give him some latitude. COMMISSIONER PRIDDY: I have a question. Would it be in your opinion standard procedure for each property and their spot survey to stand on their own? If I'm building -- if I'm building a building, my spot survey would show where my building is in relation to my property lines, which is the purpose of the spot survey; correct? MR. HEDRICH: Correct. Especially when you're building on individual sites as compared to a-- COMMISSIONER PRIDDY: Right. So it would not be standard for me to show where my building is in relation to my neighbor's buildings on a spot survey. MR. HEDRICH: If you're dealing with an individual site and not the entire site development plan. When you're dealing with an entire site development plan, it is proper and appropriate to include any and all structures in the site development. COMMISSIONER PRIDDY: Okay. Would it also be fair to say that if I'm dealing with an individual site development plan that that spot survey would reflect where my building is in relation to the site development plan's footprint? MR. HEDRICH: I'm sorry. COMMISSIONER PRIDDY: relying on a site development plan. have to do a spot survey. MR. HEDRICH: Uh-huh. Well, I'm relying on -- I'm Then I go build my building. I Page 51 September 7, 2001 COMMISSIONER PRIDDY: The purpose of that spot survey is really in relation to the footprint that I was working from or the rules that I was given that I was allowed -- MR. HEDRICH: Not the overall -- not just the footprint, but the spot survey is to be taken and compared with the site development plan, period. COMMISSIONER PRIDDY: Okay. And in this particular case there was an approved site development plan, which my spot survey matched. MR. HEDRICH: No. CHAIRMAN RAUTIO: No? COMMISSIONER PRIDDY: No? MR. HEDRICH: No. COMMISSIONER PRIDDY: Why is that no? MR. HEDRICH: You're saying that the approved site development plan 90-60A matched this spot survey? COMMISSIONER PRIDDY: The 90-60 which was sold to the new developer. That approved site development plan -- and I don't know if it was 90-60A or what the letters are, but that approved site development plan, does his spot survey match that? MR. HEDRICH: I would have to reexamine his spot survey to compare -- COMMISSIONER PRIDDY: You've got the spot survey in your hand that he turned in to you -- Mr. Allen turned in to you. MR. HEDRICH: The spot survey -- COMMISSIONER PRIDDY: For Building 2 -- MR. HEDRICH: Villas 2 -- COMMISSIONER PRIDDY: -- Villas 2 -- MR. HEDRICH: -- of 90-60A. COMMISSIONER PRIDDY: Okay. Does that match the approved site development plan that was in the county records for Page 52 September 7, 2001 approximately nine years? MR. HEDRICH: There again, I would have to say no because it does not show the existence of Villa 1 at all. COMMISSIONER PRIDDY: Well, is not Villa 1 -- did they not have a separate site development plan? MR. HEDRICH: It's still the same site development plan, 90 - 60. COMMISSIONER PRIDDY: It's still the same site development plan -- MR. HEDRICH: Correct. COMMISSIONER PRIDDY: But even on that site development plan, we're shown a 56-foot building footprint, not a 60- foot building footprint plus stairwells; is that true? MR. HEDRICH: Somehow I-- COMMISSIONER PRIDDY: Ray, you maybe can -- MR. BELLOWS: Yes, ifI may. The survey that's being presented here is for SDP 90-60A, which is the amendment that was done by the current applicant. It reflects the building conditions as approved in the site development plan, but it fails to show Building 1. And since we're dealing with a PUD with specific development regulations dealing as a unified site, then it's incumbent upon the developer petitioner of the second Phase 2 building to show that relationship with Building 1 since that all the setback requirements in the PUD document addresses this particular multifamily tract. It doesn't provide setbacks from internal tract boundary lines, condominium phase lines, or anything like that. It only provides the distance-between-structure setback. It has to be shown on the site development plan because that is the only setback that applies. And I understand the applicant's contention that maybe stairs and accessways don't apply since the Land Development Code does apply encroachments of unenclosed or unroofed staircases into Page 53 September 7, 2001 required side yards, but no way does it relieve the petitioner from meeting distance-between-structure-setback requirements. The code does not address that. So the only thing that applies -- the distance between structure setback does apply, and that's the only thing we're dealing with here today is a variance. And the site development plan did not show that, and that's where we are. COMMISSIONER PRIDDY: But if an individual relied on county records to establish the spot survey from Building 1 and they had the spot survey from Building 2, you would not know about any encroachments -- MR. BELLOWS: That's correct. COMMISSIONER PRIDDY: If a prudent person went to the county records and relied on what's in the county -- MR. BELLOWS: I think that's what happened. COMMISSIONER PRIDDY: You would pick up Spot Survey No. 1, Spot Survey No. 2, and come to the conclusion that everyone in the world's happy because there's no problems. And that's, in effect, what's happened here? MR. BELLOWS: That's my understanding. COMMISSIONER ABERNATHY: Except you had Mr. Kepple visit the site. CHAIRMAN RAUTIO: And we do have some responsibility here for site visits and what's in the field. I mean, as a contractor I had to pay attention to that all the time, so I'm still a little bit confused how this continued on for so long. Mr. Pedone. COMMISSIONER PEDONE: Mr. Bellows, we don't have the original site plan here, do we,9 MR. BELLOWS: For Building 1.9 COMMISSIONER PEDONE: The original site plan and the original PUD, would it have shown Building 1 or Phase 1 and Phase 2 -- or Building 1 and Building 2? Page 54 September 7, 2001 MR. BELLOWS: No. COMMISSIONER PEDONE: Well, as a future -- MR. BELLOWS: My research of the records is there was no site development plan for Building 1 only. That was constructed through the old process and building permits issued, and that's recorded on microfilm. But that still doesn't reduce the requirement for providing a current survey with the site development plan that was amended showing staircases. And, basically, that's the reason why we're recommending denial. Otherwise, I think there would have been enough criteria -- of the variance criteria that we would have recommended approval of the variance. CHAIRMAN RAUTIO: First public speaker? MS. MURRAY: David Rosenberg. I think he may be part of the Shader-Lombardo team, but he's listed if he wants to speak. MR. ROSENBERG: Thank you. Good morning. The spelling of my last name is R-o-s-e-n-b-e-r-g. I hope that helps. I'll try to keep this brief. It's my understanding that the spot survey was simply to be of Vanderbilt Villas 2. It is to show the footprint and nothing more. That is why Mark Allen submitted it as such. Mark Allen has already stated that he does not go on the other properties as a part of his customary spot surveys. He is concerned solely with the manner in which his building, the footprint specifically, is placed on the property which he is working with. I believe that the site development plan clearly shows the state of Vanderbilt Villas 1 and Vanderbilt Villas 2, and his spot survey was simply used per the county's customary practices to locate Vanderbilt Villas 2 on that property. CHAIRMAN RAUTIO: I have a question for you. I might have done this a little earlier, but can you state your qualifications? MR. ROSENBERG: Yes. I'm an attorney licensed to practice in the State of Florida. I have a master's in business degree as well, Page 55 September 7, 2001 and I'm currently practicing with the law offices of Scott, Grant located at 3341 Tamiami Trail North. CHAIRMAN RAUTIO: Thank you. MR. ROSENBERG: You're welcome. COMMISSIONER RICHARDSON: Question. CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: So I understand your position is that the applicant for Building 2 can be done with the spot surveys you've identified without relationship to anything else that's on this property? (Sic.) MR. ROSENBERG: I believe that's incorrect. I believe the spot survey was simply used in conjunction with the site development plan, and the purpose of the spot survey is solely to locate Vanderbilt Villas 2 on its own property. COMMISSIONER RICHARDSON: So you would contend then that the spot survey requirements by the county do not have any requirement to show how that -- your project relates to other projects on this unified PUD document that you're building under? MR. ROSENBERG: That is my understanding, and I believe if you have further questions that Mark Allen could address those further. COMMISSIONER RICHARDSON: Well, I'm recalling that Mr. Allen already has testified, if you will, that he did, in fact, take a measurement -- because I pursued that point -- from the comer of the building over to what he considered to be the edge of principal structure, which in his interpretation -- not the county's -- but his interpretation was the wall, not the covered walkway and stairwells. And he measured that to be some 23, 24 feet and, therefore, he concluded that Building 2 was properly located in relationship to this PUD. And now I'm hearing you say something different. MR. ROSENBERG: No. I believe I'm agreeing with Mark Page 56 September 7, 2001 Allen. He is simply -- was stating that his measurements of 24.55 feet, I believe, were what's done in accordance with the site development plan. COMMISSIONER RICHARDSON: And his interpretation of where the principal structure was, so it really goes back to the first issue that was brought up, what is a principal structure? So it's going to hang on that issue. MR. ROSENBERG: Yes, sir; that is correct. Unfortunately, neither the Land Development Code nor the PUD define the term "principal structure." The term "structure" is defined. Unfortunately, whomever wrote the PUD which we are dealing with has used the term "principal structure," which we believe is an attempt to differentiate that from what is defined as "structure" under the Land Development Code and the ordinance which preceded that. COMMISSIONER RICHARDSON: I understand your position. MR. ROSENBERG: Thank you. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: Well, I was going to comment. I guess I'll save that till we get to that point. CHAIRMAN RAUTIO: Thank you. Any further questions? The last registered speaker I have is Pamela MS. MURRAY' Stewart. MS. STEWART: I don't know if everyone has had a chance to review the information that I provided for staff several weeks ago in time to get them into your packet -- CHAIRMAN RAUTIO: Would you state for the record -- MS. STEWART: I'm sorry. represent Vanderbilt Villas, Inc. S-t-e-w-a-r-t. I am an attorney. My name is Pamela Stewart. I My last name is spelled Vanderbilt Villas, Inc., is the condominium association in which the individual unit owners own the building referred to at times as Page 57 September 7, 2001 Phase 1. They are the victims in this matter. Anyway, I supplied you with packets of information which I believe you have, and I've met with several of you as well. I would like to briefly go through some of the photographs. I have provided you with an index to the photographs if you will look to your packets. It's a little bit of a glare on this. Okay. You will notice -- this is Photograph No. 1. In the center of Photograph No. 1, you will notice a line. It is, indeed, a yardstick. Let me point that out. Okay. Right here (indicating), that's a yardstick. It is 36 inches wide. Over here you see (indicating) the footprint, which happens to be a planter in this instance, of my client's building. It is part of the stairwell, and it is solidly -- I'd say attached, but it was all poured at the same time as the stairwell. Over here (indicating) you can see concrete splatters from Shader-Lombardo's construction, which it was so close that the concrete splattered, and they didn't even bother to clean it up. This, as measured, is approximately 50 inches. That would be 4 feet 2 inches, not 7 foot 8, but it depends on your definition of a structure. This would be Mr. Lombardo's stairwell. I believe someone said earlier that the building didn't have stairwells. Well, his does, and it's right there (indicating). This is the continuation of the building back this way. Okay. Here we see the yardstick again. This is a close-up of it so you can actually see the inches measured. What I didn't point out in the previous picture, which you can see very clearly in this picture, is where the sunlight hits the grass here. If you'll notice, this portion is in total shadow. I'd like to go back to the original picture again. I'd like to show you the sunlight on that one. Okay. On this end you can see the light coming through, and you can see it on the far end as well. That would be on either side of the building. The portion in between is Page 58 September 7, 2001 where the new building totally blocks the sunlight from my client's building. If you like, I can have someone pass these around if you'd like to look at them closer. Some of your black-and-white copies aren't very good, I'm sorry to say, but this would be Photograph No. 3. It's a view of the corridor in between the buildings from the handicapped parking space. I might point out that there's very little room between the grass and the handicapped parking space lines. This is Photograph No. 4. Just checking. It's a view from the new building's stairwell showing the original building's mulch washed onto gravel by the water from the new higher elevation flowing down past the drains into the planters and sidewalks. You can see the water stains on the sidewalks back here. Okay. CHAIRMAN RAUTIO: Excuse me. How many units are from approximately this point (indicating) to the end of the building? Is it four or six on your building? MS. STEWART: There are 16 units altogether, 8 on each floor. This building covers approximately six to eight of the units depending whether you take into account partial units or not. CHAIRMAN RAUTIO: That would answer my question. MS. STEWART: Okay. All right. This is the mulch that I mentioned. This comes from my client's drainage area there (indicating) washed with the backflow. This is Photograph No. 5. It's a view of the new building from one of the original stairwells. It sort of looks like sky, but it's not. It's blank wall right here. Now, on Photograph No. 6, this is a view from Unit 107's doorway. Note the roofline up here, which has absolutely no rain gutter, and also note the watermarks on the sidewalk from the flooding. This is a view of my client's drainage of their planter, I believe. Page 59 September 7, 2001 It was -- it used to go downhill and drain into the area where the building wasn't. Now it cannot do that because then it would have to go uphill into the gravel. There's a significant slope there, and I'm hoping one of my other photographs shows it. This is a view of a wall of the new building from the top floor of one of the original stairwells. This is from the top floor. Shader- Lombardo's building goes up another story. This is the wall right here (indicating). This is a view from the new-- Mr. Lombardo's stairwell -- Shader-Lombardo's -- directly into Unit 106, which depicts mulch on the steppingstone. These are steppingstones back here as well, although they are totally covered with mulch because of backwash from the drainage from the new building. There are also water stains on that sidewalk as well. Okay. This is a photograph of the -- it's a view from one of the original stairwells showing the lack of maneuvering space in between the buildings. This is the handicap zone right here. CHAIRMAN RAUTIO: Excuse me. This is the same picture you showed us with the yardstick? That's the planter -- MS. STEWART: Yes. That's the same location. CHAIRMAN RAUTIO: Thank you. MS. STEWART: Except this one is taken from the stairwell, I believe. This is a view from the applicant's (sic) third-floor stairway showing the proximity of the original roofline to his building right here. And over here you can see that the trees are right there (indicating). This is a view from one of the stairwells showing a person walking in between the buildings. You can see the building -- the wall very clearly there. Okay. This is a view of the front showing the shadows -- view Page 60 September 7, 2001 of the front yard showing the shadow. You can see where the sunlight comes in at the end and also showing the drain field and that there's no room in between those buildings. This is the new building right here (indicating), and this is the edge of my client's building. This is a view -- another view from the new building's stairwell looking down onto my client's building. If you note, this is the overhang that Mr. Kepple was talking about is part of the roofline. And this is the sidewalk. Quickly, this is another view -- wait a minute -- another view of the new wall out at the entry of one of the units. That's what this person sees when they walk out their front doors, this wall. This is a view of the new wall from the unit entryway on the second floor. You'll notice that there is light coming from this side over here (indicating). That is the end of the building, and this is the wall. This is showing the shadow between the building as well. That's from my client's building, and this is Shader-Lombardo's building. This is the light. We're almost finished. This is another angle from a unit entryway on the first floor. This, again, is the roofline of the Shader-Lombardo building with no rain gutter (indicating). This is the wall. CHAIRMAN RAUTIO: Excuse me. When you say "no rain gutter," does that mean the water just pours off the -- MS. STEWART: Yes, ma'am. CHAIRMAN RAUTIO: -- roof and then into the area that's to the drainage -- MS. STEWART: Yes, ma'am. CHAIRMAN RAUTIO: -- and wherever it goes, whether's it's on their side or your side -- Page 61 September 7, 2001 MS. STEWART: Well, it goes off of their side because it's very steeply pitched. Although it's gravel, it washes down into my client's landscaping onto their sidewalk, stands there. When it recedes, it comes back, brings the mulch with it to their drain field. This is a view from the new building showing the roofline and the shadow. Very clearly you see the sunlight here (indicating). You see the shadow here (indicating)? There's a little sunlight coming in here. But, basically, it's in shadow from their building. This is a view of the new building showing -- no, sorry. This is a view of wall from an entryway on the first floor. This is once again the wall. And this is a view of the new building showing the three-story L-shaped building instead of one two-story building and one three- story building as was submitted on their site development plan, which I would like to show you. There are actually several site development plans. This one -- sorry -- sort of hard to tell which one is which. I'll show you this one. This plan says "Final Site Plan, Vanderbilt Villas Condominium Phase 2 for LaGrasta Construction -- interestingly enough -- February 1990. This is apparently Mr. LaGrasta's original site plan, but it was used as a final site plan for -- or so it says -- Vanderbilt Villas Condominium Phase 2 Final Site Plan. I'll be happy to pass this around so you can look. What I'm referring to, if you see right here (indicating), this is a proposed two-story six-unit building. Okay? There is space between this building and the other new building, which was three-story and twenty-four units. Okay? I would like you to note that the stairwells are shown on the other buildings. I guess I'd like to introduce this into evidence as part of the package that the county has. I got it from the county. This is the same thing. In my statement to you, I mentioned that Page 62 September 7, 2001 the petitioner stated that the second building was constructed in substantial accordance with SDP 90-60, which is what I just showed you, however, there are significant differences, which I just pointed out. The original site plan for Phase 2 showed two residential buildings totaling only 30 units. It also shows the building adjacent to the Phase 1 building as only two-stories high and containing only six units. I'm wondering how it went from the two buildings shown on the original site plan to the building shown in this picture. My colleague makes a big issue of the fact that the original site development plan did not show the stairwells, and perhaps my client is in violation. I propose that his finished building is not what was shown on the original site development plan at all. However, one other point: My clients purchased their units in the condominium without going to the county and looking at the site development plan. They're buyers -- bona fide buyers without knowledge and should not be punished for anything the former developer did. Oh, Marjorie Student mentioned earlier that the law abhors an economic waste. The economic waste has been perpetrated upon my clients. Their condominium units have been devalued; therefore, it is -- it would be much better to allow the person who created the situation to bear the brunt of the economic waste as opposed to my clients. CHAIRMAN RAUTIO: Excuse me. We have a question from Mr. Priddy. COMMISSIONER PRIDDY: Yes. What evidence are you submitting that their units have been devalued? Do you have some appraisals of what they appraised for prior to that building being built, or has anyone tried to sell? I mean, what proof-- that's a statement that you're entering in -- Page 63 September 7, 2001 MS. STEWART: Yes, sir. COMMISSIONER PRIDDY: But what evidence do you have that, in fact, their units have been devalued? MS. STEWART: Well, sir, the only evidence that I have -- because this is not specifically a meeting where I'm supposed to show definite damages -- is that one of the renters in one of my clients' condominiums broke her lease and left and suggested that the building was so ugly and cut off so much light and circulation -- air circulation-- that he should sell it immediately and get out because it's not going to appraise. There have been no sales in that building since Mr. Lombardo commenced construction, so I would have no way to give you comparables, no one that has tried to sell their units. They are obviously waiting until this is resolved hoping that they will have something better to sell. COMMISSIONER PRIDDY: Thank you. MS. STEWART: Yes. COMMISSIONER PEDONE: What remedy would the owners in Building 1 like to see happen? MS. STEWART: Ideally, they would like to not have this building in their face. COMMISSIONER PEDONE: So knock down the building is what they would prefer. MS. STEWART: Ideally, they would not like to have the building, okay? This -- and I'll address that a little more in a moment. My cohort, Mr. Pritt, mentioned undue economic -- let's see -- undue hardship as part of the county's requirement. Does this perpetrate undue hardship. Well, I submit to you that Shader- Lombardo caused their own hardship, and if they have to suffer for it, it is not undue. It is due. Page 64 September 7, 2001 COMMISSIONER PEDONE: You're saying that your site development plan, which was the original one that you have there, shows a completely different arrangement for Phase 2, it showing a two-story building and then a three-story? MS. STEWART: Yes, sir. COMMISSIONER PEDONE: And yet on that original site development plan it's showing stairways on both the buildings on Phase 2, but yet it does not show stairways on the building of Phase 1. Is there any reason for that? MS. STEWART: You would have to ask the engineer who drew it. I would assume that someone who knows that they should put stairwells in on a site development plan ought to know they should have put stairwells in. COMMISSIONER PEDONE: Well, wouldn't it have been the same engineer drawing up that original site plan that's showing Building 1, 2, and 3? MS. STEWART: I don't think so. COMMISSIONER PEDONE: You've got a plan that you're saying that was the original site plan. If that was submitted as the original site plan, it has three buildings on it. Two of those buildings are showing stairwells and one of them is not. So evidently then that's not the original site plan. COMMISSIONER ABERNATHY: She's saying it was the final, I thought. COMMISSIONER PEDONE: Whatever. MS. STEWART: This site plan is dated February 1990. It was apparently prepared by Lockhart Engineering COMMISSIONER PEDONE: So that was after the original plans were put in for approval. MS. STEWART: Well, 1990 may have been -- wait just a moment. I have some others. Page 65 September 7, 2001 it? COMMISSIONER PEDONE: If-- the PUD went in in '87, isn't MS. STEWART: I believe -- July 28, 1987. COMMISSIONER PEDONE: Okay. MS. STEWART: And the PUD -- pardon? CHAIRMAN RAUTIO: I think Mr. Bellows has a comment. MR. BELLOWS: I would just like to point out that there's an amendment to that site development plan that she was showing that was done by Lockhart. That's SDP 90-60A. It was done by Terry Kepple. And that shows the three-story building and all the units as it is constructed, and that is consistent with the PUD. MS. STEWART: I believe -- yes, but the language -- and correct me if I'm wrong -- in the petitioner's objection said that the building was constructed primarily in accordance with the original site development plan. That is their whole point here in saying that they are not at fault here because they went by the original site development plan. If you can amend the original site development plan to show what you want to do, I would think you could amend it to show what actually is. CHAIRMAN RAUTIO: Mr. Priddy. COMMISSIONER PRIDDY: Well, the site development plan would show footprint and nothing -- nothing else. I mean, we rely -- the purpose of the site development plan is to show footprint. Am I correct, Ms. Murray? MS. MURRAY: Yeah. The site development plan's going to show the footprint of your structure. It's also required to show elevations. Now, I don't know if elevations were submitted at the time because this didn't go through-- the original building didn't go through the SDP process but ... COMMISSIONER PRIDDY: I have another question, follow- Page 66 September 7, 2001 up on Commissioner Pedone's question. If we side with you and your clients, what are they looking for? Yes, they don't want the building there. I realize we'd all like to have a wooded lot with lots of wildlife and those things, but that's not going to happen. How much of the building that they're looking at would they like to see disappear? I mean, what's their ultimate objective in being here and opposing this? What do they want to happen? MS. STEWART: We want justice, which is seldom achieved. COMMISSIONER PRIDDY: Six feet? Ten feet? Twenty feet? building? Two units? Is justice two feet? Four feet? All the building? Half the MS. STEWART: No. It is to be in compliance with county code, and if that cannot be achieved -- but I don't -- this forum, I believe today, is to determine whether the zoning laws have been met. Is it probably not to determine what would be the ultimate legal outcome eventually? COMMISSIONER PRIDDY: Well, for me to make my mind up and what leads me to the decision yes or no is all the factors in the staff report, and that's based on economics, based on measurements; it's based on the whole gamut. MS. STEWART: Yes, sir. COMMISSIONER PRIDDY: So, you know, to me, making three units disappear may have, you know, one bearing on my decision. Making six units disappear may have another bearing. MS. STEWART: Oh, no. We're not concerned about anything about the encroaching portion. CHAIRMAN RAUTIO: Which would be roughly three units. MS. STEWART: Yes. Or maybe even half of three units. I believe when it leaves -- if it is denied, it would go back to staff to have a violation hearing, and at that time they would decide what the Page 67 September 7, 2001 penalty should be. If anyone is unhappy, then past -- exhausting all the administrative remedies, yes, then it would go the circuit court. And I wanted to point out, while it is true that the law -- as Marjorie pointed out earlier, the law abhors economic waste. The law also allows individual private-property owners the full benefit of their investment-backed expectations, which should not be summarily denied them by a governmental entity. COMMISSIONER PRIDDY: But I think that would work both ways, wouldn't it? Wouldn't it work for this -- MS. STEWART: No. They're in violation of code. You are not entitled to an after-the-fact variance. It is not an entitlement. CHAIRMAN RAUTIO: Any other questions of Ms. Stewart? Do you have any other evidence you'd like to submit? MS. STEWART: I'd like to look at my notes for one second. A lot was said during the preceding ... CHAIRMAN RAUTIO: While you're looking, staff, could you answer the question of drainage? This is a variance and I believe an integral part of the impact on -- with the closeness of the buildings. Is the drainage adequate there? MR. BELLOWS: Well, the site development plan amendment that was approved shown here would have been reviewed for drainage and water management. Now, if it wasn't constructed as to the plans that were reviewed by the planner or the engineer at that time and there is a drainage problem, we can have code enforcement investigate. But it wouldn't be tied in, per se, to this variance request. CHAIRMAN RAUTIO: Because that seems to be a major slope there and-- Ray -- MR. BELLOWS: I'll discuss this with the engineer, and we'll have it investigated, and it will clear up any drainage problems. CHAIRMAN RAUTIO: I just wanted to say, when you walk on those rocks, it is a definite slope, and logic would tell you water Page 68 September 7, 2001 coming off the roof is going to flow down and go immediately to the next property whether it's 20 feet away or not the way it's designed right now. So I'm not sure what all those technicalities are, but that may have to be looked into. MR. BELLOWS: Definitely. COMMISSIONER PRIDDY: And to follow up on that drainage issue, I think there's maybe two things that can help that: one, a gutter on the new building that would direct the downfall to the parking lot; No. 2 -- and I'll ask staff, and maybe this is an engineering things, but perhaps a small berm in between the two buildings could be put in so that the water that drains off Phase 2 does not have the opportunity to go over on Phase 1 and either has to stand in a puddle until it drains off through those existing drains or runs off. And I throw that out as matters of discussion. CHAIRMAN RAUTIO: Right. And some sort of remedy of some of the individual issues that are there because we definitely have a building in a -- that they are requesting a variance for. COMMISSIONER ABERNATHY: I had a question for Ms. Stewart. MS. STEWART: Yes. COMMISSIONER ABERNATHY: One of the owners of one of your clients made some reference in their letter to having tried to protest the shape this building was taking with a realtor agent of the developer. Can you flesh that out at all, or do you know the nature of that communication or rebuff communication when it took place? MS. STEWART: I'm not, frankly, real sure when that conversation took place. I know that the same fellow attempted to contact a county commissioner concerning this very issue. Sent an e- mail, sent pictures over the e-mail, and the county commissioner could not -- what I read on the response -- open them right away. Finally did open them. Checked with staff and was told that it was Page 69 September 7, 2001 20 feet between buildings and that it complied. CHAIRMAN RAUTIO: In what time frame? MS. STEWART: That was last fall. CHAIRMAN RAUTIO: Last fall. MS. STEWART: Prior to there being so much damage. I have one other statement to make. When I first looked at the problem, I went directly down to the county, pulled the county code book to determine what the definition of a "building" was, regardless of whether it says principal structure, primary structure, structure. The most -- the hardest definition would be to meet that of a building. And it specifically states -- and I don't have it in front of me, but I'm sure it's available -- that a covered stairwell meant to shelter human beings is a building. COMMISSIONER PEDONE: Excuse me. But then shouldn't that covered stairwell have been in the original footprint of the building? MS. STEWART: I imagine it should have. COMMISSIONER PEDONE: And then if the stairwell -- if the original footprint of the building is showing a location, and it's showing it as 56 feet in depth, then, in fact, Building 1 is in violation because it's outside of its proposed or shown dimensions on that original plan. MS. STEWART: It's in violation of not complying with the SDP? COMMISSIONER PEDONE: Yes. MS. STEWART: Well, I think the violator would have been the developer and not my clients. So perhaps there's an issue that the county could take up with him. COMMISSIONER PEDONE: But then doesn't the next person -- we'll say your opposition -- have the right to assume -- and I'm not saying they're right, because they didn't check thoroughly enough. Page 70 September 7, 2001 I'm just saying, do they not have the right to assume that the building was built in conformance with the plans, with the original plans, as long as it was approved and CO'd by the county? MS. STEWART: No, sir, they do not. First of all, what is in the county records could be construed as constructive notice. If you have actual notice of a building on-site, that is much better than constructive notice. Number 2, you do not have the right to rely on county officials. In the circuit courts, it's a question -- well, that issue, actually, was specifically decided. I cannot cite to you what it was. But if you did, then what if you had a county official in there who is not so on the up and up? They could just go around saying things were fine, and then you could do whatever you pleased no matter how it affected the public. And that was the thinking behind that decision. COMMISSIONER PEDONE: So, in other words, what you contend what they should have done was to do a survey also of Building No. 1 and get the location of Building No. 1, and then do 20 feet from the edge of stairwell at Building No. 1. MS. STEWART: From the edge of the building, yes, as defined by county code, which would be that covered stairwell, yes, sir, is exactly what I think they should have done. COMMISSIONER PEDONE: Okay. CHAIRMAN RAUTIO: Any further questions of Ms. Stewart? Do we have any other registered speakers? MS. MURRAY: No. CHAIRMAN RAUTIO: We've been dragging on here for quite some time. I understand that. We're going through the process. Mr. Allen, do you care to remark back? I'll give you some latitude to respond to one of the statements that was made. CHAIRMAN RAUTIO: Mr. Allen, while you are there, I would Page 71 September 7, 2001 like you to give me that original document so you and I can talk afterwards and make an agreement on that getting into the record. MR. ALLEN: Yes, ma'am. CHAIRMAN RAUTIO: Unless you need it for this answer. MS. STEWART: May I make one other quick comment, please? CHAIRMAN RAUTIO: Yes, before he gets there. MS. STEWART: This is a site elevation plan that was submitted with the original plans, and it shows the stairwells on it. CHAIRMAN RAUTIO: What's the date on that? MS. STEWART: March 23, 1990. CHAIRMAN RAUTIO: March 23, 1990. MS. STEWART: Yes, ma'am. COMMISSIONER PEDONE: That would not have gone in with the original PUD, though, would it, because that was 1988? MS. MURRAY: No. The PUD doesn't have that level of detail. It's just a conceptual plan. COMMISSIONER PEDONE: Okay. CHAIRMAN RAUTIO: But would that be on record? MS. STEWART: MR. BELLOWS: MS. STEWART: I got this from the county in the records. Which building? Building 1. Actually, it says, "floor plan typical," but there was only one -- shows -- you'd really have to look at it. I'm not an engineer or surveyor or architect, but I do see that it does have -- and it's very clear if you actually look at it -- stairwells. CHAIRMAN RAUTIO: Thank you. MS. STEWART: Would you like to see it on the overhead? CHAIRMAN RAUTIO: Might as well show it on the overhead. Does this constitute -- providing this information to us so she has to give that to me also? MS. STEWART: I'm sorry? Page 72 September 7, 2001 CHAIRMAN RAUTIO: MS. STUDENT: MS. STEWART: available for a dollar. Marjorie? Yes. Oh, you can have this. They're readily CHAIRMAN RAUTIO: You're going to enter this into the record? MS. STEWART: Yes. CHAIRMAN RAUTIO: Thank you. MS. STEWART: Okay. Notice where my finger is (indicating)? Notice these little steps here? This whole area is a stairwell. You can notice the entrance to the stairwell right there (indicating). You go down. Here's another one right here (indicating). COMMISSIONER PEDONE: Do you have one portion of that print that's showing the depth of the apartment? In other words, it would show it on the typical apartment giving you -- from the edge of the lanai to the edge of the stairwell showing the depth and footage. MS. STEWART: The depth? Oh, wait just a second. I showed you the front of the building. If you would look at this (indicating), this is not an elevation. This is the actual footprint, and you can see the actual stairwell right there and there (indicating) In answer to your question, the depth -- I'm looking. Like I said -- COMMISSIONER PEDONE: Keep pushing it up. MS. STEWART: I'm sorry? COMMISSIONER PEDONE: Keep pushing it up. Okay. Right there. MS. STEWART: 55.6, yes. COMMISSIONER PEDONE: 55.6 then is to -- MS. STEWART: The edge of the sidewalk, it appears. COMMISSIONER PEDONE: Okay. Page 73 September 7, 2001 MS. STEWART: But does not include -- COMMISSIONER PEDONE: Outside of that. MS. STEWART: -- the stairwells right there and there (indicating). And this was, like I said, this is a matter of public record. It was right there. Anyone reviewing the plans, if they had done a thorough review, would have noticed it. CHAIRMAN RAUTIO: Thank you very much. Now, Mr. Allen, it's your turn to comment. MR. ALLEN: Well -- and I keep going back to layout and the way this thing was created and the way it happened. And if you look at the site plan itself, this is the same that's on the wall. If you go back to the original plan, you see the 23 feet is from a solid line, which is the new building, to a darkened line, which the wall -- that is the wall of the foundation. The other dotted line is the covered canopy. And that calls for 23 feet from wall line to wall line, and we have 24.55 feet. So I'm confused as to -- this dotted line would be in my opinion -- it must be the covered canopy. But the approved plan shows 23 feet, and we exceed that. That's where I'm confused. CHAIRMAN RAUTIO: Okay. Ms. Murray, do we have any further registered speakers? MS. MURRAY: No. CHAIRMAN RAUTIO: Okay. I'm going to close the public hearing. MR. PRITT: Can we rebut? CHAIRMAN RAUTIO: I just closed the public hearing. COMMISSIONER BUDD: We've heard enough for four hours. CHAIRMAN RAUTIO: Pleasure of the board? COMMISSIONER PRIDDY: I would like to see us keep the public hearing closed. COMMISSIONER RICHARDSON: Madam Chair, I think Page 74 September 7, 2001 we've heard quite a bit about this, and there's still some issues and questions that are boiling around, and we have to make some resolution of this. The fact that the applicant has come forward and recognized that he has a building condition that requires a variance is significant to me. That means that he recognizes the building is in the wrong spot. It is too close to the adjacent building. And if you look at the unified PUD, as certainly there's ample information for the applicant to have done that, you can see that there is a 20-foot required between buildings. And I think this all boils down to the definitions that we are all trying to use relative to this code. And the definition that I'm persuaded by is the definition of a structure. And whether it's a principal structure or a building, it seems to me staff has been very clear in their interpretation, at least to our use, that those are synonymous terms, and that the distance between these buildings, principal structures is required to be 20 feet and, therefore, the very large variance that the applicant's asking. This is an unfortunate situation. Any time we get an after-the- fact situation like this, it creates a lot of turmoil and agony for both sides. We recognize there is some significant economic -- perhaps some significant economic factors here. Nonetheless, I'd like to offer a motion that we support staff's recommendation for denial of this variance for the planning reasons that have been thoroughly discussed. COMMISSIONER ABERNATHY: I'll second. CHAIRMAN RAUTIO: We have a motion by Mr. Richardson and a second by Mr. Abernathy to support the staff recommendation of denial of this variance. Do we have any discussion? COMMISSIONER PEDONE: Yes. I'd like to -- I can't support the motion. I feel that the original SDP shows a building with a Page 75 September 7, 2001 56-foot depth. It's clearly, from the set of plans that Ms. Stewart shows, larger than that, and I really think they had every right to expect that the building was built as what was shown originally and, therefore, they were wherein the 20-feet setback. I also feel, you know, it's really a shame. I mean, I wouldn't want to have to live in one of the apartments either and have to look at that wall, but, unfortunately, when you buy next to a vacant piece of property, it's a chance you take. So I just can't support the motion. CHAIRMAN RAUTIO: Mr. Budd. COMMISSIONER BUDD: I can support Mr. Richardson's motion, although I disagree in part to some of his logic in that with the petitioner coming forward requesting a variance, I don't take that as admission of guilt in the least. It's just a matter of the process. I don't think they're acknowledging that they'd made a mistake. In fact, they argued long and loud that they have not. But I do agree with the logic on what is or is not a principal structure. I think staff has presented that the stairway is part of the principal structure, and the distance from Phase 2 to Phase 1 is less than 20 feet to the principal structure. And I think just functional difficulty we have is that the spot survey as Mr. Allen has discussed the history and how the name was coined and how it is applied is an inappropriate instrument to determine the distance between principal structures, and that's our problem. It is -- the spot survey has a specific job. The best of what I've seen, the surveyor performed that job appropriately. Unfortunately, the answer to a question that's not being asked is the distance between walls of the structure. That's pretty straightforward. But the wall of the unit is not the total dimension of the principal structure. And I think that's the issue. So I'm agreeing with the motion. COMMISSIONER ABERNATHY: I'm going to support the motion. It seems to me it's a relatively simple matter. I don't think Page 76 September 7, 2001 this problem with what's a structure and what's a principal structure, that's something that the petitioner has set up that to me is devoid of merit. We all agree, I think, beyond cavil that a covered stairway is a part of a structure. Now, somewhere there's a disconnect between what the surveyor did and what Mr. Kepple did. It's as simple as that. I don't think we are penalizing somebody in an objectionable way when we send this forward to the County Commission saying, "You've got to determine a remedy -- design a remedy in this case. We think the equities are with the opponents of the petition." And that's all I'm saying. Far be it for me to say whether the last tier, stack of apartments should be torn down and a new exterior wall -- it wouldn't offend me if that were the remedy. But I'm not saying that's the only remedy. In any case, we probably haven't heard the end of it. If the plaintiffs'-- or the petitioners' opponents here are not satisfied with the county commission's remedy, then they will no doubt go to civil court. But I think the matter ought to go forward recognizing the issue is fairly clear-cut, that there's an encroachment -- an encroachment into the required setback between a structure, be it principal or building or whatever, and the old building and the new building. So that's my reason. COMMISSIONER PRIDDY: Madam Chairman, I'm not going to be able to support the motion, and it is largely based around reliance of some county records interpretations of how business was done in the county and very much along the comments that Commissioner Pedone made. By and large, what's been shown in Phase 1, Building 1 is a 56-foot wide building, and very clearly that building or structure is much wider than that in reality. CHAIRMAN RAUTIO: Mrs. Young. Page 77 September 7, 2001 COMMISSIONER YOUNG: I can support Commissioner Richardson's motion completely because it does seem to me that in the normal course of events as you progress with your work and you see that you are seriously out of line with what is known to be a 20- foot setback, it should have been discovered and remedied much earlier. COMMISSIONER PRIDDY: Call for the vote, please. CHAIRMAN RAUTIO: I'd like to make a comment. I'm persuaded not to support -- excuse me. I'm persuaded to support the motion for a couple of reasons. I feel that the definition of the building stairway structure issue is relatively clear to me, and it's obvious that there are covered stairwells there even though they are outside the 56-foot dimension. I was more persuaded because of the document presented, I believe it was May 23rd of 1990, that did show those stairways. That document was available to any one of the public or to the engineer researching this information. I'm also concerned about licensed professionals making mistakes, as you've heard me say before from up here. I believe as Mr. Abernathy has stated that it's really going to be up to the Board of County Commissioners to design a remedy, and I'm not in a position to design that remedy but that it is relatively clear-cut to me that some major errors have been made, and that I cannot support the variance. So I call the question. All those in favor say aye. Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER BUDD: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Those opposed. Page 78 September 7, 2001 COMMISSIONER PEDONE: Aye. COMMISSIONER PRIDDY: Aye. CHAIRMAN RAUTIO: Identify. Please call the roll. CHAIRMAN RAUTIO: Mr. Priddy. COMMISSIONER PRIDDY: I'm not voting in favor of the motion. CHAIRMAN RAUTIO: Okay, no. Mr. Budd. COMMISSIONER BUDD: Yes. COMMISSIONER PEDONE: No. COMMISSIONER ABERNATHY: Yes. CHAIRMAN RAUTIO: Yes. COMMISSIONER YOUNG: Yes. COMMISSIONER RICHARDSON: Yes. CHAIRMAN RAUTIO: 5 to 2. The motion carries. The variance has been denied. Thank you very much. Do we need any type of break for the court reporter before we start our next hearing? I'll take just a short break. (A break was held.) CHAIRMAN RAUTIO: I'd like to reconvene this meeting. We are now on Item D for the public hearing PUD-2000-21, a rezone. Would all those wishing to provide testimony today please stand, raise your right hand, and be sworn in by the clerk of the court. (All witnesses were administered the oath by the court reporter.) COMMISSIONER ABERNATHY: You mean just for this hearing. CHAIRMAN RAUTIO: Well, this hearing, yes, this particular item. MR. BELLOWS: For the record, I am Ray Bellows with the planning services staff. I don't know if you want to say if you had any communications with the applicant or not, or do you want me to get right in? Page 79 September 7, 2001 CHAIRMAN RAUTIO: I'm sorry? MR. BELLOWS: I don't know if you wanted to ask the rest of the planning commissioners if they had conversions -- CHAIRMAN RAUTIO: Oh, yes. The disclosures. Do we have any disclosures on this item? COMMISSIONER BUDD: Yes. I spoke with Mr. Duane on this item. CHAIRMAN RAUTIO: Okay. Thank you. MR. BELLOWS: The petitioner's requesting to rezone the subject site from agriculture and agriculture with an ST overlay to a planning and development to be known as Terafina PUD. As you can see on the visualizer, the subject site is located approximately one mile north of Immokalee Road. It is one mile north of the Olde Cypress PUD to the south. To the east is the Mirasol PUD that was just recently approved. To the north is the Parklands PUD. The subject site is accessed from extension of-- along the west side of the property line of Olde Cypress all the way up to the western property side of Logan Boulevard-- Logan Boulevard extension. The petitioner is requesting a maximum of 850 dwelling units, which results in a density of 1.3 units per acre. The residential tract compromises of 141 acres. There's also a 126-acre golf course and open space areas. The master plan also provides for 274 acres of preserve and flow-way. As you can see along the eastern side, this flow-way is designed in conjunction with the Mirasol PUD to help improve drainage and flooding conditions in that area. And, as I stated, the access is provided from an extension of Logan Boulevard from Immokalee Road. Petitioner has provided the right-of-way on the master plan for that road extension. The traffic impact statement indicates that project will generate Page 80 September 7, 2001 approximately 5,795 trips. The review by transportation department indicates that the PUD will be in compliance with Policies 5.1 and 5.2 if additional conditions for future detail analysis are provided prior to the next level of the development approval. In your staff report, they've given three kinds of conditions. They want to see the applicant do primarily traffic analysis on the intersection of 951 and Collier Boulevard. The applicant agreed to do that subject to the wording of the language now contained in the PUD document and referenced in the staff report. It is consistent with the future land use element and the Growth Management Plan. It's in the urban residential area. The based density is four units per acre. Therefore, the proposed density of 1.3 is definitely consistent with the future land use element. This item was brought to the Environment Advisory Council on March 7th. They recommended denial of this -- of the environmental plans submitted for this project. Basically, their concern was there's too much offsite mitigation and too much impact to the on-site wetlands. So they recommended denial of this petition; however, it should be noted that this is very similar to the Mirasol PUD which has the flow-way to the east side and the benefits derived from the -- designed in conjunction with other developments in the area vastly improve the drainage in the area. Mirasol was also not approved by the EAC, but the Board of County Commissioner approved Mirasol because, basically, they felt the need for this flow-way to be done. And the petitioner is providing offsite mitigation, and our environmental staff has recommended approval of that mitigation plan. CHAIRMAN RAUTIO: Ray, I want to make sure I heard you clearly. You're saying that EAC denied it because of the extensive offsite mitigation? MR. BELLOWS: On-site impact. Page 81 September 7, 2001 CHAIRMAN RAUTIO: On-site. MR. BELLOWS: Excuse me ifI said it the other way. CHAIRMAN RAUTIO: On-site impact itself. Okay. MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: Even though there's this very large flow-way there. MR. BELLOWS: That's correct. Yeah. The flow-way's not a preserve area, per se, for drainage purposes. It is part of a preserve, though. CHAIRMAN RAUTIO: Thank you. MR. BELLOWS: The relationship to existing uses, the development standards, setbacks, building heights are very similar to the approved Olde Cypress PUD to the south and to the Mirosol to the east. Staff has deemed the development standards to be in compliance and compatible with the intent of the Land Development Code and deemed this to be a consistent compatible project. Staff has not received any letters in opposition to this petition; however, we have had concerns raised from property owners' association from Quail Woods concerning the proposed maintenance -- let me zero in on this a little bit. As you can see, the golf course maintenance facility is located along this extension of Logan Boulevard, and it appears to have access onto Logan Boulevard, and their concern was maintenance traffic along this roadway. They prefer to see that as an internal connection. I discussed this with transportation, and they also have recommended that this would be an internal connection, not a direct connection to Logan Boulevard. That was just something that came up within the last day or so. CHAIRMAN RAUTIO: The feeling of the petitioner, have you discussed it with him? MR. BELLOWS: I'm not sure. No, I have not had a chance to Page 82 September 7, 2001 discuss it. CHAIRMAN RAUTIO: Okay. So we can bring that up at the appropriate time. Thank you. MR. BELLOWS: I'd be happy to answer any questions. COMMISSIONER RICHARDSON: Madam Chair. CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: Mr. Bellows, now this is an agricultural area, but unlike other agricultural areas we've looked at, this is not one that's zoned agricultural. MR. BELLOWS: Yes, it is zoned. COMMISSIONER RICHARDSON: Well, then it wouldn't be zoning -- well, getting at the density issue, would the agricultural area usually just have one unit per five acres -- MR. BELLOWS: If they were to develop single family under existing zoning, that would be the density, but they are in -- on the future land use map -- and I have a copy of that here -- the future land use map governs eligible density projeCts or eligible to receive. The yellow area represents a base density of four units per acre. Now, if they were in this density band, the circles, they are eligible to receive three additional units. So their base density that they are eligible to receive under the future land use element is four units per acre. Under their current zoning of agricultural -- you're right -- it's one per five acres. COMMISSIONER RICHARDSON: Now, the Mirasol project that you related to, that one was part inside and part outside, as I recall. MR. BELLOWS: I believe you're correct, yes. COMMISSIONER RICHARDSON: And so in that case we had the one for five -- when they were building up their numbers, the one for five related to the agricultural land. MR. BELLOWS: That's correct -- Page 83 September 7, 2001 COMMISSIONER RICHARDSON: That was outside the urban boundary? MR. BELLOWS: Yeah. The white area just to the east of this yellow line is designated agricultural on the future land use map, and they cannot receive zoning for higher density than what is allowed under the future land use map. CHAIRMAN RAUTIO: So by having 1.3 acres we're actually -- I mean, 1.3 units per acre, we are way under the 4 units per acre -- MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: -- available to them and sounds like we're almost defeating our density purposes within the urban area. COMMISSIONER RICHARDSON: Well, ifI may continue, though. There is a considerable amount of jurisdictional wetlands on this property, which is a huge number, five hundred and some acres, which I am sure has influenced the environmental review of this to have some concerns about the level of density, even though on a gross basis it appears to be very small. When you get down to putting those units just on the upland portion of this site, it's going to be very dense. Let me just pursue the transportation element. You see there's several conditions here. Wouldn't it have been appropriate for us to have those answers rather than have that hanging out as a -- MR. BELLOWS: Well, the traffic impact statement submitted by the application does not clearly indicate a problem -- certainly doesn't indicate a problem now or in the near future. However, in the long term or near build-out conditions with the unanticipated growth of the county has experienced (sic), I think transportation department along with the Mirasol project they have -- Mirasol also recommended this intersection analysis to look at future conditions as the project goes along. There's no guarantee how fast this project will develop or how Page 84 September 7, 2001 slow it will develop. So my understanding with discussions with transportation that this is the best way to monitor traffic conditions and to insure that growth does not impact the level of service beyond a way that we can address it. This is a matter that -- condition that allows the county to address traffic impacts in the future without having to go through concurrency management and a moratorium and that filter situation. COMMISSIONER RICHARDSON: However, is there a development commitment that they have agreed that they will meet whatever the current requirements are at that time or not to have any COs? That's what I read back here on one of the development ... MR. BELLOWS: Yes. I think Mr. Duane is better able to respond to his agreement, but it's my understanding he's agreed to this language as submitted in the PUD. COMMISSIONER RICHARDSON: So if I'm understanding it correctly, we've got level of service D on this roadway now. And rather that put more traffic that would cause this to be even worse in the future, he's going to submit to an analysis that would demonstrate to our appropriate bodies that he will not exceed the service levels at the time that he plans to develop this -- MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- otherwise, the development will not go forward. MR. BELLOWS: Yes. If the traffic analysis shows problems, say in a future phase of development, then there will be some sort of mitigation that will be required, some improvement or some kind -- or phasing of the project or delaying of the project. Those actual conditions would have to be worked out at that time. COMMISSIONER RICHARDSON: So it's outside the concurrency management program. This is a special deal just for this development. Page 85 September 7, 2001 MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: That's good. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: I'm concerned about the water management problem, the flow-way, the fact that there are two sets of plans. Has that been further resolved in any way? And have you gotten an approval by The Conservancy and other groups for this because it does constitute a big problem? MR. BELLOWS: I don't have letters or anything from the conservancy in regards to actual approval of this development. However, I believe they were involved during the EAC meeting and made their comments known. COMMISSIONER YOUNG: And they've done nothing further regarding the water-flow problem? MR. BELLOWS: The county? COMMISSIONER YOUNG: Well, regarding this plan. MR. BELLOWS: No. The petitioner has not done anything since the approval -- since the denial during the EAC. COMMISSIONER RICHARDSON: I have some more questions for staff before we go -- CHAIRMAN RAUTIO: Right. Let's stay with staff for a moment. COMMISSIONER RICHARDSON: What's the situation -- just to educate me on exotic vegetation. It seems that applicants come in and get huge credits and concessions on the part of the county for agreeing to clear out exotics from their property. I thought everyone had to clear out exotics. Isn't that a standing ordinance? It's not a special deal. They should be doing this anyway. MR. BELLOWS: That's correct. That is a requirement to have exotics cleared. COMMISSIONER RICHARDSON: So any statements that Page 86 September 7, 2001 you've made in your review or that the applicant has stated that promotes his project on the basis of him improving the condition of the wetlands is something he, in fact, has an obligation to do even without this being in front of us. MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: All right. One question. As -- Policy 6.4.6, which in the conservation coastal management element, and I pulled this out of the Environmental Advisory Council staff report. It's on their page 3 of 11. It talks about keeping these jurisdictional wetlands in place as much as possible. And one thing -- I was struck that I've not really noticed before, but down at the bottom of that page and continuing over to the top of the next page, page 4, it says, and I'll quote, (as read): "this policy" -- now we're talking about putting in residential developments and impacting vegetated site -- "This policy shall not be interpreted to allow development in wetlands should the wetlands alone consist of more than 25 percent of the site." Well, it seems very clear to me that we've got 60, 70 percent of the site is jurisdictional wetlands, and how can we be violating our own objectives? I'm just puzzled by the conflicts between staff's report and the EAC staff report. MR. BELLOWS: Well, there's mitigation that's provided for. Our environmental staff has deemed that appropriate mitigation and is recommending approval. COMMISSIONER RICHARDSON: So I understand that position, that says an applicant can come in with 500 acres of wetlands, and if he is willing to fill it all in and make up for it someplace else, we'll go along with it? MR. BELLOWS: Not necessarily. In this particular case, our environment staff has looked at this particular site for these particular conditions in relation to the overall needs of the area and has Page 87 September 7, 2001 determined that the mitigation plan proposed by the applicant along with the benefits from the flow-way were enough to recommend approval. COMMISSIONER RICHARDSON: Well, of course, we're looking at this project as a project that's before us now -- MR. BELLOWS: That's right. COMMISSIONER RICHARDSON: -- not the rest of the -- and I'm concerned about what I consider to be an inconsistency. CHAIRMAN RAUTIO: Any other questions of staff?. Okay. We'll hear from Mr. Duane. MR. DUANE: Good morning. For the record, Robert Duane from Hole Montes & Associates. I have here with me this morning George Hermenson, our senior vice president in charge of engineering. I have Tim Hall, an environmental consultant with Todd Terrel (phonetic) & Associates, and I have Ted Treesh (phonetic) from the Metro Group who prepared the TEIF. I was going to make my presentation brief this morning. It may end up a little longer, but I'll try to start out and capsulize it for you. We are, first of all, in agreement with all the stipulations that staff imposed upon us, so there's no disagreement there. You'll see on the wall that I have two exhibits this morning that I'll briefly refer to. One is our PUD master plan, and you'll see our almost 300 acres of preserve, 276 actually, with the flow-way along the eastern portion of the property. The subject property, Terafina, is -- as you can see is sandwiched in between a number of golf course communities, one being the Parklands to the north, one being Olde Cypress to the south, and then we have Mirasol which is located to the east of us. I'd like to note that we agree with the findings of the staff report, and I would summarize those as three essential findings: one, that the staff is to determine that the uses and the intensities are Page 88 September 7, 2001 appropriate for the subject property. I will testify that I agree with that finding. Secondly, the infrastructure is adequate to support the planned development. Note, again, for the record that we are extending Logan Boulevard almost a mile to the north to connect our access from Olde Cypress up to our entrance about mid-point in the property. That is an improvement that's called for in the 2020 financial feasible plan, and that's being constructed at the cost of my client. The third finding is that we have been determined to be consistent with all elements of the Growth Management Plan notwithstanding the fact that we are unable to obtain the staff of the Environmental Advisory Board. Your staff did recommend approval of it and found that we were consistent with the goals and objectives of the conservation element. I think to a large extent that was because we have extensive preserve areas in this project. We are required by the Land Development Code to provide 25 percent of native habitats. We have approximately 43 percent of our site as a preserve area. And as Mr. Bellows pointed out to you, one of the hallmarks of this plan is, in fact, the flow-way area. A number of you, I think, heard the presentation from Mirasol, which was quite extensive on this issue. We're not going to replicate that this morning other than to note that this was a regional solution to resolve not only flooding in northern reaches of Collier County, but to improve flooding conditions along Bonita Beach Road and in the city of Bonita Springs, and the South Florida Water Management District has supported this concept. We've been in the permitting process for the last four years. We hope to have our permits by the end of this year. This has been a unique opportunity where not one, but three property owners have entered into a three-party agreement that I'd like to enter into the Page 89 September 7, 2001 record this morning committing the respective project to try to fulfill establishing this regional flow-way. It's approximately 200 feet in width through the middle of the preserve area, and then it shallows into marsh areas along the edge to provide feeding habitat for birds, wildlife. The flow-way will try to mimic the existing hydroperiod conditions. However, when the system's under stress, water needs to be relieved, there's a number of gates structured. (A break was held for the court reporter.) MR. DUANE: I was talking about the flow-way and the three-part agreement between Mirasol, Olde Cypress, and Terafina. I'd like to enter this into the record as the commitment for these three property owners to try to implement this regional improvement. As Mr. Bellows pointed out to you, the Board of County Commissioners determined that this flow-way would be an improvement and was necessary, an improvement to the general area and will also be a benefit and was necessary. I'm quoting actually out of the staff report. So that concludes my presentation. I'd be happy to answer any questions along with my consultant team that is here this morning. COMMISSIONER ABERNATHY: I have one housekeeping question, Bob. Who are these two gentlemen co-trustees for? Who are the owners of the property? MR. DUANE: There's a Mr. Vosciasano -- COMMISSIONER ABERNATHY: But they are co-trustees for the owners. CHAIRMAN RAUTIO: We need that spelled for the court reporter. COMMISSIONER ABERNATHY: Who are the owners? MR. DUANE: I understand that those two gentlemen are the owners of the property. I think if you look at the deed that their Page 90 September 7, 2001 signatures are on it. Let me look through the packet of information here. CHAIRMAN RAUTIO: We're talking about Robert V-o-s-c-i-a-s-a-n-o, and Angelo F-e-v-r-e-t-t-o. MR. DUANE: That's correct. CHAIRMAN RAUTIO: Thank you. COMMISSIONER ABERNATHY: They are co-trustees of a trust of which they are the beneficiaries. Is that it? MR. DUANE: That is my understanding, sir. COMMISSIONER ABERNATHY: Okay. Thank you. CHAIRMAN RAUTIO: Mr. Richardson has a question. COMMISSIONER RICHARDSON: Mr. Duane, I'm intrigued by this flow-way concept. You're, of course, stating with agreements and everything else that's gone on that this flow-way is going to be an improvement over the functioning of the wetlands that are there today. MR. DUANE: I don't believe I said that. COMMISSIONER RICHARDSON: Well, then what's the purpose of the flow-way if it's not going to improve things? MR. DUANE: The purpose -- you're trying to make a nexus between the two, and I'm not trying to be argumentative, but the purpose of the flow-way was to alleviate regional flooding concerns. And I think you saw the very extensive presentation on how that reaches beyond Bonita Beach Road and Bonita Springs, and it is public benefit. I think the Water Management District has recognized that, our county staff, and also the Board of County Commissioners. COMMISSIONER RICHARDSON: Yes. I'm impressed by those credentials. However, on your site, if the exotics were taken out, wouldn't the flow-way that we're trying to improve take care of itself anyway? Page 91 September 7, 2001 MR. DUANE: Not with the extent of conveying -- we're channelizing a portion of that preserve area. It's going to be 200-feet wide, but within it, it's going to have a 4-foot deep channel, and it's designed to move water very rapidly out of the system through the gates and the control structures that have been designed to do just that at periods of peak flood attenuation. COMMISSIONER RICHARDSON: So it would be your contention then that we should stray from the policies that we have in place in order to accomplish this greater good for the larger area. MR. DUANE: Well, as I testified earlier, your staffhas indicated that we are consistent with all of the policies of the Growth Management Plan. COMMISSIONER RICHARDSON: I think that fails on its face, but I've asked that question and not received a response. MS. MURRAY: Could I get some clarification as to what policy you're talking about? COMMISSIONER RICHARDSON: Yes. Thank you. It's 6.4.6. MS. MURRAY: 6.4.6 talks about 25 percent of the viable naturally functioning needed vegetation on-site? COMMISSIONER RICHARDSON: Right. MS. MURRAY: Okay. And you were referencing wetlands. There may be some confusion here. This talks about native vegetation, and I think that according to the staff report they far exceed that, the requirement -- or the requirement is for 25 percent on-site. And I believe they are up around -- MR. DUANE: Forty-three percent. MS. MURRAY: Forty-three percent. COMMISSIONER RICHARDSON: I guess, Ms. Murray, the reason -- I'm just trying to reconcile -- maybe the statement doesn't belong in this policy. But it says (as read): "This policy shall not be Page 92 September 7, 2001 interpreted to allow development in wetlands." I realize you're talking about vegetative state, but that refers to wetlands, and that's the large area that we're talking about in this particular site. Perhaps I'm misinterpreting the intent. MS. MURRAY: I can get some clarification for you later on. COMMISSIONER RICHARDSON: I'd appreciate that. CHAIRMAN RAUTIO: Any other questions of Mr. Duane at the moment? Okay. Do you have any registered speakers? MS. MURRAY: Yes. One registered speaker, Brian Farrar. CHAIRMAN RAUTIO: Please come forward and state your name for the record and spell it, please. MR. FARRAR: Thank you. Good morning. My name is Brian Farrar, F-a-r-r-a-r. I represent the contract purchaser of the property called the Parklands due north of this project, Section 9. Presently there's an existing PUD on this property which accommodates for 1603 multifamily units in that vicinity due north of the project. We just want to make sure as we go through the traffic statement -- and we have briefly reviewed that-- that does the Terafina traffic impact statement reflect the existing Parklands PUD density and traffic allocation. There has been some concern on our part that the 80-foot right- of-way that's now been looking like (sic) they're going to have -- will that accommodate for both this project and the future connection of the Parklands project. We had some concerns, and I just want to voice those and make sure it's addressed. It's my understanding that during the next level the revised traffic statement will be made in front of the Board of County Commissioners. We'd just like to have an earlier copy of that if we could. MR. BELLOWS: We'll furnish you with a copy. MR. FARRAR: Thank you very much. We weren't contacted, Page 93 September 7, 2001 by the way, for the hearing. MR. BELLOWS: I'll check into that. MR. FARRAR: Thank you. MS. MURRAY: No other registered speakers. CHAIRMAN RAUTIO: No other registered speakers. I close the public hearing. What's the pleasure of the board? COMMISSIONER BUDD: Madam Chairman, I'd like to make a motion that this planning commission forward Petition PUD-2000-21 to the Board of County Commissioners with a recommendation of approval. COMMISSIONER ABERNATHY: I'll second. CHAIRMAN RAUTIO: We have a motion by Mr. Budd and a second by Mr. Abernathy for approval of this petition. Do we have discussion? COMMISSIONER RICHARDSON: Just a brief discussion, Madam Chairman. I'm in agreement with the motion, however, I'm rather reluctant to move against the advisory boards that we have. The environmental commission, I thought, made some solid points, and they had questions that were left open that I don't believe were sufficiently answered. And they are not really sufficiently answered in my mind either except to look at how this project relates to the other surrounding areas and the flow-way project, which we've heard so much about. That greater good overweighs the concern I'd have for this site if I was looking at it by itself. So with that reluctance I will support the motion. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: I also have serious reservations about this project. I'm concerned primarily about the wetland, the great flow of water that comes over that entire area and is now going to be restricted to a 200-foot wide, more or less, canal. It's something Page 94 September 7, 2001 that we should look into very seriously, and I know it needs further work. And I'm concerned about the mitigation process being so extensively used in this area, which could have been more or less a wildlife area, so I may say yes, but with serious reservations. CHAIRMAN RAUTIO: Any other comments? (No response.) CHAIRMAN RAUTIO: Call the question. All those in favor, say aye. Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER BUDD: Aye. COMMISSIONER PEDONE: Aye. COMMISSIONER PRIDDY: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Thank you. Moving right along -- oh, Mr. Pedone's looking at me. I think we need to discuss whether or not we're going to have lunch. What is the pleasure of this board? Do we want to work right through? COMMISSIONER PEDONE: We have one, two, three, four, five more to go. I was just wondering if we're going to bother breaking for lunch or work through the five. COMMISSIONER PRIDDY: Madam Chairman, I think since we're going to lose one of our valued members at one o'clock that we should and have him work through this next hour for the benefit of his knowledge. CHAIRMAN RAUTIO: And then if we don't get any further, we'll reconsider lunch at one o'clock? Page 95 September 7, 2001 COMMISSIONER PRIDDY: one o'clock. CHAIRMAN RAUTIO: Okay. o'clock. Yes. Let's see where we are at Let's see where we are at one So that moves us along to Item E, PUDZ-2001-AR-432. That's not you. Karen Bishop. MR. HANCOCK: I'm here on behalf of the applicant. CHAIRMAN RAUTIO: This is a rezone for Indigo Lakes. You fooled us, Mr. Hancock. Okay. All of those wishing to provide testimony, please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Susan Murray, current planning manager. I'll keep this very brief. This is pretty straightforward. We're talking about the Indigo Lakes PUD, which is located on the west side of County Road 951. It's just south of the Oak Ridge Middle School. The project was approved some time ago, and this petition is simply to add 40 acres to the existing project. And I've outlined -- I tried to get the whole thing on here. But you can see the two 20-acre tracts at this location. Those are the land areas that are proposed to be added to the existing PUD. There is no additional dwelling units or density proposed. Therefore, there really is no additional impact in terms of transportation or water -- wastewater, that sort of thing. So your typical analysis you will not find in the staff report because there is no additional impact over and above that which was analyzed at the original point of rezoning. As a result of this additional land, the density will be reduced from 3.14 dwelling units per acre, which is the currently approved density, to 2.43 dwelling units per acre. The site is compatible. It's a residential land use and is compatible with the residential land uses to Page 96 September 7, 2001 the north and west. To the south we have property which is zoned agricultural but is also located in the urban designated area on the future land use map. There was a question at the EAC. This petition went before the EAC and was recommended for denial. And I understand that the recommendation was based on a rumor of a study that was being conducted in the area with respect to the Harvey Basin, which is located throughout the developments in that area. And I -- based upon the information I got, the EAC recommended denial because they wanted information about the study, and the South Florida Water Management District was not present at the hearing, which they are not required to be present at the hearing. They just show up occasionally out of courtesy when they are available. I took the liberty of asking Karen Johnson about the study. I put the e-mail in your packet. It describes what's going on. This is a study that they are sanctifying through WilsonMiller, and the long and short of the study is that they are basically still reviewing the information that was provided, and they are also reviewing the information that was provided by the applicant of Indigo Lakes. And they are not yet determined -- they need more information is basically what it comes down to. So I apologize. There really isn't much information in this e-mail other than to say it's the South Florida Water Management District that's conducting the study, and they are waiting for more information as a result of the study and from the applicant as they go through the permitting process. CHAIRMAN RAUTIO: Mr. Richardson, question? COMMISSIONER RICHARDSON: Ms. Murray, that means then that regardless what we do here this may be undone by some other agency? MR. MURRAY: No. I don't believe so. I think that, obviously, Page 97 September 7, 2001 they are required to get Water Management District permits, and that may affect the overall layout of the site plan, but this is a PUD rezoning, which is conceptual. You'll see here the layout of the lots, but this is just to give you an idea of where the property is located. This is not the PUD master plan that you're recommending today. COMMISSIONER RICHARDSON: Has anything been built here yet? Is this vacant property? MS. MURRAY: It's vacant property. COMMISSIONER RICHARDSON: So this is illustrative as far as the layout of the lots? MS. MURRAY: That's correct. That was the best exhibit I had to show you the relationship of the lots to the existing project. CHAIRMAN RAUTIO: Any other questions? MS. MURRAY: Let me just call to your attention real quickly -- I passed out -- and I'm sorry, Tim. I didn't know you were presenting, otherwise I would have given you a copy too. I had spoken with Karen Bishop a couple times prior to our meeting, and she had objected to some language. You'll see on the handout 4-2 and 4-4, there's some highlighted language that's not present in the strike-through underlined document that you got. Karen objected to Item G on here, which is (as read): "the following site access improvements on County Road 951 shall be constructed within 90 days." She objected to that time frame. The last I spoke with her, "Six months or at the time of platting, whichever occurs first," was acceptable. I don't know if that's still acceptable or not. Mr. Hancock can answer that. On the second page, you'll see a stipulation that was in the old PUD relative to water management drainage easements. That condition has been met and verified by our staff, so we would request that that be struck out. MS. STUDENT: IfI might, just on the comment about the Page 98 September 7, 2001 reference to platting, we need to state -- because platting can sometimes take place over a long time period -- whether it's for the initial plat and whether that's at the approval stage or the submission stage. Just some clarification along those lines. Thank you. MS. MURRAY: Okay. Thanks. COMMISSIONER RICHARDSON: I have a question about this -- now, this is an example of a PUD that we had in place, and now they are coming in and revising it as shown. And so we're starting the clock over again with this PUD; is that correct? MS. MURRAY: That's correct. COMMISSIONER RICHARDSON: I just want to tie into the meeting we're not going to have today, which is the Land Development Code, where you are shortening the interval of five years for PUD review down to three years. And it seems to me we've got a hole in the system here. We've had a number of these PUDs come in, and for administrative convenience we've made them brand- new PUDs as revisions rather than revising the old one. And I'm concerned. That gives the applicant then a brand-new time line. So it's an unexpected outcome to an otherwise, I think, well-crafted Land Development Code change. MS. MURRAY: Well, relative to this project development is already underway -- I don't know what percentage of the project -- COMMISSIONER RICHARDSON: I just asked because it's vacant property, so -- MS. MURRAY: -- but I think fairly significant. I'm sorry. The two parcels that are being added are vacant. The remainder of the PUD, portions of it are presently under construction. COMMISSIONER RICHARDSON: I see. I misunderstood you. MS. MURRAY: I misunderstood your question. The other aspect of your question is -- the reason for the sunsetting process is to Page 99 September 7, 2001 take a look at older PUDs that have not developed up to a certain percentage to make sure that they are up-to-date with current code. So I don't feel like we are not accomplishing that by coming through with a PUD-to-PUD rezone as, this project is, because we are able to update at least our references to new ordinances and whatnot within this process although you're right; we do not significantly change the PUD itself. COMMISSIONER RICHARDSON: It just seems to me that this gives the applicant an opportunity or another bite at the apple from a time-line standpoint. And perhaps we could craft some language that would assist us from some orifice from occurring. MS. STUDENT: I think under the new language -- and correct me if I'm wrong, Susan -- but they have to be doing stuff-- a certain percentage of stuff-- every year in the process. MS. MURRAY: Correct. MS. STUDENT: And the new language is going to require more of them than just, you know, like, doing a new PUD every five -- I think. That's my general understanding. MS. MURRAY: Generally, yes. I hear what you're saying, though, and I think in light of our suspension of our hearing today, maybe we could take a second look at that. Thanks. COMMISSIONER RICHARDSON: Thanks. CHAIRMAN RAUTIO: Any other questions of Ms. Murray? Are you through with your presentation? MS. MURRAY: I'm finished. CHAIRMAN RAUTIO: No questions, Mr. Richardson? Mr. Hancock. MR. HANCOCK: Good afternoon, Madam Chairman, Commissioners. My name is Tim Hancock, vice president with Vanasse Daylor. I'm here today representing Kenco Development. Ms. Bishop, unfortunately, was scheduled to be out of country today, Page 100 September 7, 2001 so we wish her well on her travels, and I'm pinch-hitting for her this afternoon. This is strictly regarding an existing PUD that, as you can see from the aerial here behind-- and, Mr. Richardson, this is probably of equal importance to your question -- is substantially underway. Infracture's in place; development is occurring; homes are being built; families are moving it. In short, this proposal is simply to add two 20-acre parcels to an existing project to produce a very similar pattern of development extending to the south. The applicant or the application represents no significant changes to the development program at Indigo Lakes, which is a single-family community and family oriented. The reason no additional units are being requested is because the original density approved in the PUD is more than sufficient to incorporate these 40 acres with no additional units being required. So it's interesting that if this item came up at the Environmental Advisory Council as if we were adding units, there would be justification to impact the land, but because we weren't somehow that didn't justify impacting additional properties. I can't vouch for that line of thinking. I'm a little confused by it, but the bottom line is the overall density of the project in total is going down as a result of this application. The two parcels being added to the PUD meet all Land Development Code requirements including retention of 25 percent of native vegetation on-site as well as an overall 60 percent open-space requirement. The project is currently going through the ERP process with South Florida Water Management District. And, Mr. Richardson, in response to your question, it -- because zoning usually occurs prior to the completion of the ERP process, there are times should that process result in a slightly different outcome then what we anticipate, then we will have to amend the Page 101 September 7, 2001 plan. But we don't anticipate that to be the case here. Based on preliminary discussions with the District, we feel things are moving along in a very positive sense with them on those discussions. While this project enjoyed a staff recommendation of approval at the Environmental Advisory Council, a recommendation of denial was narrowly received based on elements that I'll do my best to outline to you here today. The proposed lands to be added to the PUD are of marginal environmental value based on a combination of some prior clearing for agricultural purposes as well as infestation of exotic species in the area of 75 percent or greater. These two issues seem to be responsible for the denial in addition to the study that Ms. Murray referred to a little bit earlier. The West Collier Basin Study that WilsonMiller has prepared and provided to the South Florida Water Management District is providing justification for basically looking at the western Collier wetlands as a whole in determining what small impacts do on a cumulative basis to that western basin. For example, in that western basin, you have in excess of 360,000 acres of wetland; 79 percent of them are already in public hands. As we go beyond that we find that of the remaining percentage the amount that are quality, viable wetlands is significantly lower than excepted. This project is located in an area where it's deemed to be impacted by the study, and our discussions with the District have been consistent. What impacted means is should no development occur on the site, meaning no changes occur to those wetlands, their ability to provide any viable wetland function is greatly reduced or in some cases eliminated. When you have a 75 percent infestation of exotic species, what you have done is greatly precluded any potential for sheet flow on the property, storage on the property, and so forth. So without development the property will continue to reduce its Page 102 September 7, 2001 wetland function. As a counter to that, this project -- many times we talk about -- and you may remember in recent floods -- as you look at sheet flow in this part of the county as it proceeds from the northeast to the southwest, we find that there are many times a cork in the bottle, if you will; a place where prior road construction or ditching and diking for agricultural purposes has created a damming effect and caused water to back up. When Indigo Lakes was originally designed, it was designed as a pass-through system. What that means is that the sheet flow that historically has come to the property is basically accepted into the water management system providing even greater storage than what was previously there in addition to an element of pretreatment before it's discharged. These two parcels will take advantage of that same system. They will be incorporated into it, and historic sheet flow that arrives to the property will be incorporated into the water management system and passed through the system. If you'd like to go into greater detail on that, Mr. Gonzalez with Banks Engineering -- I'm sorry -- with Banks Engineering is here and can go into more detail on the water management issues, if you like. But it goes without saying that no development on these parcels does not necessary improve, and, in fact, will probably deter the positive environmental impacts that we think can occur post development. COMMISSIONER RICHARDSON: Might I just pursue that point with you? MR. HANCOCK: Please. COMMISSIONER RICHARDSON: Your point is valid if you take the assumption that the undeveloped property that the owner has no requirement to clear the exotics. I think I've heard staff say that Page 103 September 7, 2001 we have an ordinance on the books that requires exotics to be removed. If I'm incorrect on that, please correct me. MR. HANCOCK: No, sir. You're correct, but that is -- that is -- they are required to be removed consistent with an approved development order. COMMISSIONER RICHARDSON: So vacant land does not have that requirement. MR. HANCOCK: No, sir. MS. MURRAY: That's correct. COMMISSIONER RICHARDSON: Then I misunderstood the ruling. MR. HANCOCK: And let me let Mr. Passarella address the mitigation issue in more detail. MR. PASSARELLA: For the record, my name is Ken Passarella with Passarella and Associates. I'm a -- do you want me to hand you a business card? CHAIRMAN RAUTIO: He's not sure how to spell his name in front of everybody. COMMISSIONER ABERNATHY: You can try it. CHAIRMAN RAUTIO: Anyone afraid to spell their name, I don't know. MR. PASSARELLA: To address the issue on the wetland mitigation and the removal of the exotics, the part of the county requirement is simply removal of the exotics from the property. Well, removal of the exotics can accomplish a lot as far as wetland enhancement, but when we do mitigation for the agencies, for the South Florida Water Management District and the U.S. Army Corps of Engineers, we actually typically go way beyond just removing exotics. In this case, we're going to be removing exotics from the preserve areas. We'll also be coming in after we remove those Page 104 September 7, 2001 exotics -- because the exotics are so thick as Mr. Hancock mentioned, greater than 75 percent -- there's going to be a lot of barren areas, areas without existing vegetation because the melaleuca has crowded out the existing native vegetation. Once we remove all those exotics, we're going to go back in there and plant. And there's a significant amount of planting that's going to be done as required by the South Florida Water Management District and the Corps of Engineers, so we're going to go back in and plant native trees such as cypress, pine trees. Also we're going to be planting native grasses. So there's more done above and beyond just removing exotics. This on-site mitigation plan also includes wetland creations, so as was mentioned, part of this was old ag land. We're going to be removing berms, scraping those berms down, and then replanting those areas with native wetland vegetation. We also have some upland areas -- upland-type habitats that will be set aside as well included in that. And then the remaining balance of what we're doing is we're actually mitigating off-site as well to make up the difference. So removing exotics is a portion of what we're doing, but it's not the entirety of what we're doing for wetland mitigation. CHAIRMAN RAUTIO: Thank you. Question, Mr. Priddy. COMMISSIONER PRIDDY: Mr. Hancock, if we go the other route and we don't add these two parcels into this development, those parcels are able -- those owners are able to come to us on their own and put how many units on each of those 20 parcels (sic), four units per acre? MR. HANCOCK: That is correct. The allowable density on the property without taking advantage of any possible density bonuses would be up to four units per acre, yes, sir. COMMISSIONER PRIDDY: So we can deny this, and it could end up with 160 more units. Page 105 September 7, 2001 MR. HANCOCK: There's certainly greater density on the property than what we're proposing here today, yes, sir. There are some things that I would like to add in wrapping up, and then we'll make our experts available for any questions you may have. But there are also some very specific public benefits associated with the project. Mr. Boldt from the stormwater management department has been very gracious in working with us, and we've continued to work closely with him in, basically, looking at the drainage in the area. And part of our project does set aside and reserve easements for water management purposes that provide the county access to canals and facilities that they need to maintain that they don't have today. We really have taken in this area a very comprehensive look at the water management and, quite frankly, been required to do so by past errors and activities and have actually had to incorporate some of those errors and activities into the overall design. And Banks Engineering has done a fantastic job with that. So, you know, there are a few things in here that I think result in a better drainage pattern for everyone, both upstream and downstream of the project, and that can be achieved better by looking at larger plan developments than it can be by piecemeal 20-acre-by-20-acre approach. So I would at least like to put it on the record that it has a very direct benefit of this type of aggregation of property under a unified plan. And with that, unless there are other questions, I'll make our team available for anything you might have. CHAIRMAN RAUTIO: Any questions? Do we have any registered public speakers? MS. MURRAY: No registered speakers. CHAIRMAN RAUTIO: Are we ready to close the public hearing? (No response.) Page 106 September 7, 2001 CHAIRMAN RAUTIO: I close the public hearing. What's the pleasure of the board? COMMISSIONER BUDD: Madam Chairman, I'd like to make a motion that we recommend approval of Petition PUDZ-2001-AR- 432 with the changed language of-- that was passed out to us changing 90 days to six months and the amended comment, "Or at the time of platting, whichever occurs first." COMMISSIONER ABERNATHY: I'll second. CHAIRMAN RAUTIO: We have a motion by Mr. Budd, a second by Mr. Abernathy for approval of this petition. Is there any discussion? COMMISSIONER RICHARDSON: Just a quick discussion. I'm very appreciative of the commitments that the applicant has made, and I trust through staff that those commitments will be made fully part of the record. MS. MURRAY: They are already in the PUD. Thank you. CHAIRMAN RAUTIO: No further comments? (No response.) CHAIRMAN RAUTIO: Call the question. All in favor state aye. Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER BUDD: Aye. COMMISSIONER PEDONE: Aye. COMMISSIONER PRIDDY: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO: much. Aye. Those opposed, same sign. Motion carries. Thank you very Page 107 September 7, 2001 Moving right along to Item F, PUD-92-08(1) rezone, White Lake Industrial PUD. All those wishing to give testimony today please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) CHAIRMAN RAUTIO: Thank you. MR. BADAMTCHIAN: Good morning, Commissioners. My name is Chahram Badamtchian. CHAIRMAN RAUTIO: And before you go any further, I'd like to disclose that I had a lengthy telephone call with Mr. Nadeau. COMMISSIONER BUDD: I also had a phone call with Mr. Nadeau. COMMISSIONER PEDONE: I also had a phone call with Mr. Nadeau. COMMISSIONER ABERNATHY: I spoke with Mr. Nadeau. COMMISSIONER RICHARDSON: He didn't bother calling me. COMMISSIONER PRIDDY: I think he and my wife talked, but he and I never got around to it. COMMISSIONER YOUNG: I was in Alaska. CHAIRMAN RAUTIO: Okay. We're finished with the disclosures. Chahram. MR. BADAMTCHIAN: I have some handouts, and I owe you an explanation. The packet you have received did not include -- the latest packet you have received did not include the latest version of the PUD document. It wasn't ready at the time, and it wasn't ready until later this week. And this is the latest PUD that I just handed to you. And we had some decision about some of the stipulations and some disagreements over some of the stipulations. They were resolved this morning at around ten o'clock. So the PUD document that I gave you is going to have some changes to which I will read Page 108 September 7, 2001 into the record. Basically, this is an existing PUD which was approved in 1993, and this is the PUD master plan. As you can see, the PUD master plan showed some conservation areas in a road that comes and dead- ends here. And what they are proposing is to change that master plan to this, which what they are going to do is to reduce the conservation area from 11.3 acres to 9.3 acres, the lake area from 44.1 acres to 36.6 acres, the open-space area by 10.8 acres. This will allow them to increase the industrial land use area from 67.4 acres to 77.3 acres and to create a 7.8 acre commercial tract. The original PUD, when it was approved, showed the wetland; however, that was an isolated wetland cut off from the rest by 1-75, and 1-75 ran -- and they obtained permits from the South Florida Water Management District and Army Corps. And they mitigated off-site in order to remove portions of the wetland and make it buildable property. This PUD is located within the Interchange Activity Center No. 9, which allows some commercial uses in addition to industrial. They are taking advantage of that and proposing to change the use of Tract C, which is in here -- is that clear? -- which is in here (indicating) from industrial users to commercial users. The list of commercial users are included in the PUD. One of the issues that the county had was this intersection, which is a newly created intersection, is too close to White Lake Boulevard. And that's why they came up with this design, which is a conceptual design, and it may change at the time of subdivision plat review or site development plan. Basically, it is to prohibit people from making left turn coming from Clover Avenue, making left turn to Shaw Boulevard. Besides that this PUD complies with all the requirements of the Growth Management Plan, and staff recommends approval of this Page 109 September 7, 2001 PUD amendment subject to all the stipulations of the PUD document with the exception of the transportation stipulations, which were changed this morning. And I'll be more than glad to read this into the record, or maybe the applicant wants to address that before I read this into the record. COMMISSIONER RICHARDSON: Questions for staff first. CHAIRMAN RAUTIO: Yes. I'm trying to follow where you are heading with this traffic thing. Mr. Richardson, go ahead. COMMISSIONER RICHARDSON: I seem to recall that this site, if you will, came in a larger master plan, and we actually looked at this. MR. BADAMTCHIAN: It was Activity Center No. 9. COMMISSIONER RICHARDSON: As I recall, there was a large number of people that were involved in the development of that plan, and that plan was, in fact, signed off on by all the planners that were represented, including was then -- not the White Lake Corporate Park, but White Lake Industrial Park. Brian Milk, I notice his name on there. He was working on that at that time. MR. BADAMTCHIAN: Right. COMMISSIONER RICHARDSON: So what -- I'm curious about the process here. Is there ability then to not follow the plan, and is this the way that we do it? MR. BADAMTCHIAN: This is in keeping with the plan. This is not deviating from that plan. COMMISSIONER RICHARDSON: Well, I only would beg to differ in the sense that there's quite a bit greater intensity -- I think I'm using the right word -- greater intensity in this particular area then was ever contemplated in the master plan. And you've outlined that. So it seems to me that we're straying from the plan and giving this developer quite a bit more than what he agreed to or what his representatives agreed to in the development of the master plan to Page 110 September 7, 2001 begin with. I'm not sure where the authority comes to make these changes. MS. MURRAY: Susan Murray for the record. My recollection of the master plan relative to land use, there was a limitation on the amount of commercial acreage, and I'm going to make the assumption that Chahram analyzed that to ensure that this project did not exceed that limitation. And there was also some development standards and some reference to some future architectural standards, which have yet to be determined. But there was development themes and some color and some common architectural themes that were to be presented -- or present upon the development of all the properties in this area, as well as I understand there was a transportation master plan that I'm not sure was entirely accepted by the Board of County Commissioners. I believe from the minutes of the meeting when the master plan was approved, that they wanted to revisit some of those transportation issues. As far as the land use goes, I do believe this is in compliance with that plan. COMMISSIONER RICHARDSON: Just ask one specific question. In the master plan -- and I don't have that with me, of course, now-- but there was some specific references made to open-space requirements. And I was particularly impressed by them because they were rather generous. Can you assure me that those open-space requirements are -- MR. BADAMTCHIAN: Space requirements are here, yes, sir. This thing was also reviewed by the long-range planning, which are the keepers of the Growth Management Plan, and they signed off on this. CHAIRMAN RAUTIO: Remember, only one can talk at a time. COMMISSIONER RICHARDSON: One other question then Page 111 September 7, 2001 just in specifics. Under the environmental section, on my strike- through -- and I'm just wondering what happened -- (as read): The five bald eagle roost trees as indicated on the plan of record shall be indicated on the construction plan, final plat, with a note on the plat stating they shall be preserved." And that's been stricken. MR. BADAMTCHIAN: I believe the bald eagles are no longer there. COMMISSIONER RICHARDSON: So the trees are no longer there? MR. BADAMTCHIAN: I'm not positive. The trees are no longer there, but I believe the bald eagles are gone. COMMISSIONER RICHARDSON: Do we have some sort-- I thought we had some sort of a plan in the county to preserve this -- some sort of a bald eagle preservation plan. COMMISSIONER ABERNATHY: He says the eagles don't live there anymore. MS. MURRAY: I think that's based on where the eagles are located. They've left the area. There's a certain point in time in which then you can remove their trees. COMMISSIONER RICHARDSON: They didn't like the neighborhood. MR. MURRAY: Probably not. MR. BADAMTCHIAN: I forget to say that this project was reviewed by the Environmental Advisory Committee, and by a vote of 5 to 1, they recommended approval. COMMISSIONER PRIDDY: They cleaned up the landfill and the eagles didn't like that. They moved on. CHAIRMAN RAUTIO: through presenting? MR. BADAMTCHIAN: CHAIRMAN RAUTIO' Are you going to answer? Are you I'm through presenting. Do we have any more questions of Page 112 September 7, 2001 staff?. (No response.) CHAIRMAN RAUTIO: Okay. Your turn. MR. ROBAU: My name is -- sorry about this -- Emilio Robau. That's E-m-i-l-i-o, last name is R-o-b-a-u. Dwight Nadeau will be giving the presentation. I'm going to be real brief, but I have a lot of the history. I've been working on this job since 1997. I'd like to touch on a couple of the things that we just talked about. We've been waiting to go forward with this rezone for approximately two years. And, actually, we've been before you and have had to continue it for various reasons, primarily because the interchange master plan took a little longer than what was anticipated. With regard to Commissioner Richardson's questions on the intensity, we actually could have gone for more commercial in this project. But we were already satisfied with the industrial land uses that were there. And we're asking for commercial on the very comer of the property, and Dwight will elaborate on that a little bit more. With regard to the bald eagles, really that stipulation came from a -- this is a 1991-1992 vintage PUD. And the eagles were roosting on essentially snags. Our environmental consultant, due to the length of another meeting that we had here earlier, had another commitment. I'm going to have to answer on behalf of that. And snags were essentially trees that were dying, and after Hurricane Andrew a significant portion of them were gone. And I think on the plat -- the last plat -- one of them is still shown on that. And that plat was previously done. So the snags were knocked down in Hurricane Andrew. They were dead trees. Eagles are seen flying around the vicinity. There is no nesting activity occurring. They are primarily there for the landfill. I'd have to say they are still there, and they'll still continue to be there because Page 113 September 7, 2001 there is some preserve area adjacent to the lake that is there. If they want to use a tree to rest after they've eaten whatever they're eating out there, they can do that. I just want to reemphasize there's no nesting activity, etc. And I'm glad to see -- we were one of the only petitions here today that had a 5 to 1 vote that the Environmental Advisory Committee -- we actually passed muster on that. So with that I'd like to turn it over to Dwight. He'll introduce the rest of the team, and if you have any histortical-type questions, I'll be here to answer them. Thank you. COMMISSIONER ABERNATHY: Was Tim Hall your consultant on the -- MR. ROBAU: No, Mr. Passarella. Passarella and Associates is our consultant. And since you're asking, Mr. Pickworth is our legal counsel, and he's in the wings. And Bill Oliver is our transportation expert, and he's also here. Thank you. MR. NADEAU: Good afternoon, Commissioners. For the record, my name is Dwight Nadeau, N-a-d-e-a-u, of RWA. I'm representing William T. Higgs on this petition, PUD-92-08(1), first amendment to the White Lake PUD since it was adopted roughly ten years ago. Three phases of development have been completed on the project, and we do have South Florida permits as well as Army Corps permits for the request that we are presenting to you this morning. Mr. -- excuse me -- Dr. Badamtchian handed out to you a revised PUD document. This is the fifth revision to the document that's been made since it was submitted back in October of 2000. And I gave you a quick bullet sheet that was requested by Commissioner Abernathy and Madam Chairman Rautio depicting what the substantive changes have been to the PUD. I'll be very brief. There was a reformatting of the document to be consistent with the model PUD document of Collier County. There was the Page 114 September 7, 2001 identification of the commercial component through the addition of Section 4. In the PUD there were two distinct tracts that were identified, and they're shown on the PUD master plan as well. That would be Tract C for the commercial development and Tract I for the industrial development. The addition of the architectural standards that were -- that is a part of the Land Development Code for commercial land uses as well as reference to those standards that may be adopted pursuant to the interchange master plan. There was some addition of outside storage standards for the commercial tract as well as a -- storage standards for the industrial tract. And as a result of the review, there was -- the original request was for 102,550 square feet of commercial development opportunity. That has been reduced down to 96,165 square foot. This reduction reduces the trips generated by the overall development down to -- reduces it by 100 trips. So the staff report references 362 additional trips as a result of the proposed changes. Now, with the revision by reducing the commercial square footage, we now are at an increase of 262 trips annual daily (sic). That is far less than the significance test that the Land Development Code as well as the transportation element requires. Very similar changes were made to the PUD master plan, that being a revision to the land-use table, identification of Tract I. The addition of typical roadway cross-sections. The PUD legal description as well as detail for an intersection improvement that was of concern to the transportation department, they were concerned about-- as Chahram explained-- vehicles from Clover turning onto Shaw, while Shaw, traffic was backing up to get onto White Boulevard to go out. Therefore, a divided -- a median dividing -- a divided median has been provided on Shaw Boulevard with a sign located in that median directing traffic only to a right turn such that Page 115 September 7, 2001 they would have to come back and join the queue. They wouldn't be able to join the queue in middle, which would have caused some congestion. As was described by Dr. Badamtchian, the project is reducing some conservation area and some lake area; however, as a result of the change of the character of the PUD from being a strictly industrial PUD, which has a requirement pursuant to code and the GMP of 15 percent retained native vegetation, is now being considered mixed use as commercial and industrial requires 25 percent retained native vegetation or replantings. Thus that results in an increase of 9.73 acres of native vegetation as well as open space, which the vegetation will also account for. We've had -- we did have one outstanding issue that we were going to bring before you today. We've had consensus and agreement with all of staff's conditions, recommendations for the approval of this petition. At about 9:50 this morning, the transportation services planning director, as well as our staff, met with Ms. Wolfe, and we have agreed to providing the following language I have handed out to you. And this will replace the language in the PUD document in Section 5.5: "A" will remain; "B" will remain; ""C" will be modified to state (as read): "the petitioner shall be responsible for a fair-share contribution to site-related roadway improvements to the Collier Boulevard, White Lake Boulevard intersection, which has been determined to be $118,850. This is the check that was going to be written by Mr. Higgs on or before October 1st of this year. "D" will remain; "E," "F," and "G" will be stricken from the PUD document. I'd be happy to answer any questions that you might have. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: I'm interested in the traffic flow. You'll come out of Clover Avenue to the divided median that Page 116 September 7, 2001 you've described. The people will want to exit otherwise a dead-end arrangement, will turn right, and then how -- they have to make a U-turn on a two-lane road to get back in -- MR. NADEAU: Absolutely not. They can try, but I don't think the people that are stacked behind them -- or stacked in front of them will let them in. The intent is to go up to the turnaround on Shaw Boulevard, come back, and join the queue. COMMISSIONER RICHARDSON: Wait a minute. Do that a little more slowly. MR. NADEAU: Okay. Where traffic will be looking to exit on Clover Avenue to try and get out to Collier Boulevard at the White Lake Boulevard intersection-- COMMISSIONER RICHARDSON: Right. MR. NADEAU: -- they will see a right-turn only sign, and they will have a right-turning movement only that would allow them to go up to Shaw Boulevard, go through the cul-de-sac, and join the queue for those vehicles that are trying to exit out onto White Boulevard and onward off. COMMISSIONER ABERNATHY: There's no median cut to tempt them? MR. NADEAU: No, sir. COMMISSIONER RICHARDSON: So you're suggesting that if I were coming out, then, I would go all the way down to that cul-de-sac, and that's where I would make my legal turn to come back and go out. MR. BADAMTCHIAN: There's another exit point from this PUD -- MR. NADEAU: Commissioner-- CHAIRMAN RAUTIO: One at a time. MR. NADEAU: Commissioner Richardson? COMMISSIONER RICHARDSON: Yes. Page 117 September 7, 2001 MR. NADEAU: Okay. When people who are in Phase 4 acknowledge that they have some impedence to a left-turning movement on that, they will learn that they just need to go east out to Clover's intersection with White Lake, and then they can go to the west to get out to Collier Boulevard. COMMISSIONER RICHARDSON: So another solution would have been to just direct all traffic that way? MR. ROBAU: Let me address your question. I think what hasn't been mentioned that's important is there's going to be a raised median there. And I think the concept on that entrance is to try to get people off Landfill Access Road as quickly as possible -- excuse me, White Lake Boulevard -- because there is truck traffic there. So that's primarily a left-turning movement into the project and a quick right to get to that, you know, roadway that you're seeing there. Dwight can point that out. I think certainly the employees of all the different activities that are going to go out there will be trained that when they want to make that movement out to get to White Lake Boulevard, formerly Landfill Access Road, that they'll take the easterly entrance and exit there, full turn-lane complex there, etc. So that's really an opportunity to turn left into the project as quickly as possible, get the traffic off Landfill Access Road and away from the truck traffic, and allow them to turn right to access those few lots there. There'll be a raised median there so that when people are trying to get in that direction, even patrons of the activities going out there, they will quickly learn that it's just much quicker once they get out the driveway onto that roadway to get to the easterly entrance where there's a full facility there where they can turn right safely and get out. But there will be some that continue on Shaw Boulevard, I think. But they'll learn they'll have to turn right. They'll be a raised Page 118 September 7, 2001 median there. They'll have to go to the end of the cul-de-sac. They'll turn around, and I bet you after a couple of times of doing that they'll quit doing that. COMMISSIONER RICHARDSON: It's just a very awkward situation. I guess this is the best you can do. MR. ROBAU: Yeah. We understand that. Thank you. CHAIRMAN RAUTIO: I just want to thank you for doing the bullet points. They make a lot of sense, and also I'm pleased to see that you've come to a conclusion about the fair share on the transportation. MR. NADEAU: Very pleased as well. CHAIRMAN RAUTIO: Thank you very much, transportation and applicant. Do we have any other questions? COMMISSIONER RICHARDSON: Chahram, does this represent everything we need to know about this project? MR. BADAMTCHIAN: Yes, sir. CHAIRMAN RAUTIO: Are there any registered public speakers? MS. MURRAY: No registered speakers. CHAIRMAN RAUTIO: We'll close the public hearing. What's the pleasure of the board? CHAIRMAN RAUTIO: Russell, you're nominated today. COMMISSIONER BUDD: All right. I make a motion that we approve PUD-92-08(1) with the modification to the Transportation Section 5.5 as presented. COMMISSIONER ABERNATHY: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Budd, a second by Mr. Abernathy for approval of this petition with the changes. Is there any discussion? (No response.) Page 119 September 7, 2001 CHAIRMAN RAUTIO: Hearing no discussion, I call the question. All those in favor say aye. Aye. COMMISSIONER COMMISSIONER COMMISSIONER COMMISSIONER COMMISSIONER ABERNATHY: BUDD: Aye. PEDONE: Aye. PRIDDY: Aye. RICHARDSON: Aye. Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. MR. NADEAU: Thank you, Commissioners. CHAIRMAN RAUTIO: Thank you very much. COMMISSIONER PRIDDY: We want to make you feel good about staying. And I've done the math, if you drive five miles over the speed limit, you stay another 30 minutes and still get there at the same time. CHAIRMAN RAUTIO: Okay. We now have -- the next item is RZ-2001-AR-823, requesting a rezone. All those wishing to speak today please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) CHAIRMAN RAUTIO: Okay. MR. BELLOWS: For the record, I'm Ray Bellows with the planning services staff. As you can see on the visualizer, the subject site is located at the northeast end of Forest Hills Boulevard. The applicant is requesting to rezone the subject site from golf course to the RSF-4 zoning district. The subject 3.5-acre parcel is located -- is currently being utilized as the Naples Racquet Club. Petitioner indicates that -- is Page 120 September 7, 2001 having a difficult time making this site viable as a racquet club and is requesting to meet the current market conditions to rezone it to RSF- 4, which would allow for 12 single-family lots to be relocated on there. I have a conceptual plan showing what this could look like. As you can see, the current access comes up this way to the northeast (indicating), and the lots would be situated around a cul-de-sac in a preserve area -- green space, open-space area there. The traffic impact statement indicates that the 12 single-family lots would generate approximately 147 trips per day, which would not significantly impact any county road segment. It's consistent with the future land use element of the Growth Management Plan, which allows for four units per acre in this area. And it also qualifies for residential infill criteria, which will allow for three additional units per acre for a total of seven units per acre. So the proposed RSF-4 zoning district is consistent. CHAIRMAN RAUTIO: You might want to speak up a little bit. MR. BELLOWS: The site is not required to go to the Environmental Advisory Council due to it's existing development. So, therefore, I have no report from them. The development standards are consistent with the adjacent single-family zoning district. Staff is recommending approval. However, I have received this morning a petition from residents within the area. The Naples Racquet Club property had always been zoned for golf course recreational uses. The residents have signed this petition or-- looks like members of the tennis club and are asking that this not be granted. And I'd be happy to pass this around. Staff has not received any other correspondence concerning this issue, and I just received that this morning. CHAIRMAN RAUTIO: How many were on that petition? MR. BELLOWS: I didn't get all the numbers -- names are kind Page 121 September 7, 2001 of haphard written on there, so I didn't get the whole counting of them. COMMISSIONER PRIDDY: Twenty-five, maybe. CHAIRMAN RAUTIO: Okay. Thank you. COMMISSIONER PEDONE: And these are members of the tennis club that's there now? MR. BELLOWS: That's what it appears to be. CHAIRMAN RAUTIO: Do they get refunds? MR. BELLOWS: I'd be happy to answer any other questions you might have. COMMISSIONER RICHARDSON: Madam Chair? CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: Mr. Bellows, on your evaluation, page 4, Item 13 -- and this is perhaps more ofjust education to me -- it says, (as read): "Whether there are substantial reasons why the property cannot be used in accordance with existing zoning," and you say, "The pros and cons are not applicable." Yet you go ahead and make us a finding. It would seem that if you have a finding that there should be some support for that, but the finding I have a question about. (As read): "subject property can be developed in accordance with the existing zoning, however, to do so would deny this petitioner the opportunity to maximize the development potential that's made possible by it's consistent of the Growth Management Plan (sic)". Now, do I understand that language to mean that development can come in and if he's not happy with the way the market's going on a particular project that he's previously had approved and that he can go in and do something that will improve his profit line, that that's what you mean by maximizing development? MR. BELLOWS: Basically, property that's consistent with the Growth Management Plan, property owner has a right to apply or do Page 122 September 7, 2001 with his property anything that's consistent with the future land use element. And if he feels that one of the reasons to do so is to make a living, than that's something he's quite free to do. The real criteria is basically stating -- it's not one of our review criteria whether it's profitable or not. It's just whether it's consistent with the county codes and ordinances, and it is. COMMISSIONER RICHARDSON: All right. So the fact that you have indicated to us that this is a step to maximize his profit is not really germane to the evaluations that -- MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- are reviewed. MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: Any other questions of staff?. (No response.) CHAIRMAN RAUTIO: Mr. Hancock. MR. HANCOCK: Good afternoon, Madam Chairman, Commissioners. Tim Hancock, vice president with Vanasse Daylor, here today representing Sunset, LLC, the contract purchaser for the subject parcel. I'd like to thank Mr. Bellows for his presentation and, obviously, the petition that is circulating is something I have not seen since you just received this morning, so I can appreciate that. MR. BELLOWS: That's right. MR. HANCOCK: The purpose of this rezone is to permit single-family development consistent with the scale and character of single-family zoning in the immediate neighborhood. As identified by Mr. Bellows, the subject parcel is 3.5 acres in size and is a Wedge-shaped parcel located between the 10th and 18th golf holes of the Hibiscus Golf Club. The existing tennis facilities are no longer in use and were originally intended to be part of the Hibiscus Golf Club. At some point the property was parceled out and Page 123 September 7, 2001 has operated as a private stand-alone tennis facility since that time. The current owner, Mr. Phil Moore, bought the club with the intent of continuing to operate it as a tennis facility. However, the repairs necessary to improve the facility are not financially feasible based on the opportunities and anticipated revenues. And, Mr. Richardson, that issue becomes germane when a project is not deemed to be financially feasible. That can be a consideration in a rezone as to what may be an appropriate and financially feasible use for the property. And, Mr. Bellows, correct me if I'm wrong, but that has always been my understanding and interpretation of factors that may be considerations and reasons. COMMISSIONER RICHARDSON: I guess my issue is, though, is this a -- something that staff would evaluate or that the applicant would just state as part of the sales pitch.'? MR. HANCOCK: It is our responsibility to place into the record the basis for the rezoning, and I'm stating that as a part of our position. COMMISSIONER RICHARDSON: But not necessarily coaching him as to how he should evaluate that. MR. HANCOCK: Mr. Bellows needs no coaching. COMMISSIONER RICHARDSON: Thank you. MR. HANCOCK: Ironically, something that hasn't really been mentioned or evaluated on this property is that the current zoning, which is GC for golf course, has one single permitted use, golf courses. A tennis facility is permitted only as an accessory to the permitted use, which means -- in fact, what we're dealing with here is a nonconforming use in the GC zoning district, which means that you cannot expand the facility. You cannot expand a nonconforming use unless you rezone from one nonconforming use to another nonconforming use. The reality is out there in the tennis world today people are not Page 124 September 7, 2001 building tennis clubs with six courts. You have a variety of players that all want to play within a two-hour window. Unless you have 12, 18, 24 courts, it is extremely difficult to financially make ends meet on a six-court facility. These are the actual factors and market conditions Mr. Moore's facing in the attempt to operate a stand-alone tennis facility with no readily available opportunity to expand it. While the property may qualify under the Growth Management Plan for a higher density than four units per acre due to what's called a residential infill provision, the property is served by central water and sewer, can take advantage of that request up to seven units per acre. Clearly the most compatible use would be residential single family. The project sits at the end of Forest Hills Boulevard, which winds through a single-family community, what we typically call Old Lely. This rezone is requesting a straight rezone to RSF-4 which would permit a maximum of 14 units within the project. However, because of the odd shape of the parcel and the minimum development standards within RSF-4, the greatest number of lots you can achieve is 12. What that means is that the actual density of the project is three units per acre, the identical density of the property that's immediately adjacent to the subject parcel. In addition, while the 12 lots may vary in size, the average is in excess of 9,000 square feet which compares favorably with the adjoining properties. Once we developed a site plan for the project, we went and met with the Lely Homeowners' Association to discuss our intentions. While the property is not a part of the association, we felt it was important to address any concerns they may have. First of all, they were relieved to find out we were proposing single-family zoning as opposed to multi-family. They were also relieved to find out that the development of a size and scale shown on the site plan -- mainly because Sunset, LLC, has been building single-family homes in the Page 125 September 7, 2001 Lely community for some time now, and they've been very well received by the community. Without being too much of an advertisement, they haven't sat on the market for very long. East Naples is becoming more and more attractive to young families. One benefit of this development also is where Forest Hills Boulevard currently terminates it runs into an old gravel parking lot. There's no turnaround for fire service. It basically acts as a hammerhead or ""T" end to the road. What we're proposing -- and what is required by your code for development -- is a continuation of Forest Hills Boulevard to an appropriate-sized cul-de-sac permitting proper turnaround for emergency vehicles and residents alike on the street. In addition, there have been some drainage concerns in the past. Forest Hills Boulevard runs downhill to the Naples Racquet Club property in this area. The water at times has collected at the end of Forest Hills Boulevard. This project will be required to incorporate that existing flow into its design and the water ultimately shunted off through a pipe underneath the golf course, which the county has obtained an easement to. That pipe may need to be increased in size, and that, again, would be a part of the approved water management plan that the county will review on this site. I'm pleased to announce that we did receive a vote of approval from the Board of the Lely Homeowners' Association, and I think that's critical in looking at how we will be received by the neighborhood. I can fully understand the desire of individuals who have been members of this club not to want to see it go away, but, unfortunately, based on the economics of the situation, Mr. Moore did give the members an opportunity to purchase the club. They did not take that. As such, I don't feel it's appropriate that he or any other property owner be more or less held hostage and forced to use the Page 126 September 7, 2001 property in a manner that is not economically viable. As far as memberships, the memberships are for the most part on a monthly basis. Some people may pay through the season, and there are not outstanding financial issues that we are aware of from any of the members. Again, not a matter for rezoning, but hopefully a matter for peace of mind if nothing else. What this comes down to is the property is a nonconforming use in a zoning district that is not appropriate. We are proposing a use that is entirely consistent with your Growth Management Plan and your Land Development Code at a density less than what is permittable by both of those documents. It is consistent and compatible with the adjacent zoning on the property, and based on that information we respectfully request your favorable consideration. I'll be happy to answer any questions you may have. CHAIRMAN RAUTIO: Do we have any questions of Mr. Hancock? (No response.) CHAIRMAN RAUTIO: Excellent presentation. Do we have any registered speakers? SUSAN MURRAY: We have two registered speakers. The first is Hi Lepley. MR. LEPLEY: Madam Chairman, the Board. I'm happy to have this opportunity. I'm not in a fighting mood. What we have out there is a tennis club that can't sustain itself with -- we have seven courts, incidentally, instead of six. But that still isn't enough to swing it. But I live right on the end of the parking lot, and there's nothing new except maybe at three o'clock in the morning we have some guys in cars that want to ruin their tires fast, so they'll do -- what do you call it -- cartwheels. The stones come over and hit my house. I've had broken windows already. So all isn't heaven. Page 127 September 7, 2001 But the thing that I think we have to remember, if a company or an organization can't sustain itself, than that's a problem. I have moved my membership away because we didn't have enough members to play. So I'm still playing despite the fact that I'm 87 years old. People didn't tell me I had to quit playing tennis when you get to be 87. So I still bang around at it. I have a question or two I'd like to ask if I'm permitted. On the condos that are going to be built, can anybody tell me what the price range is going to be? Are they going to forty-thousand or two -forty? That makes a different to me. CHAIRMAN RAUTIO: I think you said condos? These are single-family homes. MR. LEPLEY: Homes. I guess it is a home, whatever they're building. What's the price range going to be? CHAIRMAN RAUTIO: We can ask that of Mr. Hancock.. Do you have a second question then? We'll hold that question for a moment. Do you have a second question, or does that rely on the answer to the first? MR. LEPLEY: That's really my big question. The others have been answered very well, and I appreciate that. MR. HANCOCK: Madam Chairman, obviously, while we don't want to tie a rezoning to the eventual sales price of-- MR. LEPLEY: Could you talk louder, sir? I have bad ears. MR. HANCOCK: I'm sorry. While we don't want to tie a rezone action to the ultimate sales price of the homes, I can tell you right now -- as a matter of fact, we have the plans here for the homes that are being designed for these parcels -- we're talking about homes that are in the area of 2,000 to 2200 square feet, and the sales price would exceed a quarter million dollars. MR. LEPLEY: That answers my question. MR. HANCOCK: But if you can find a condominium for Page 128 September 7, 2001 40,000, buy it. CHAIRMAN RAUTIO: If you find one for 80,000, buy it. MR. LEPLEY: That's true. Anybody have any questions? That's all I have to say. CHAIRMAN RAUTIO: Thank you very much. MR. LEPLEY: Thank you. CHAIRMAN RAUTIO: And good luck with your tennis. MS. MURRAY: Gregory Gonzales. MR. GONZALES: I attest to the fact that Mr. Lepley is an excellent tennis player, one of the best 87-year-old tennis players I know. I'm just simply here because I was the former owner of that property, and I also still reside adjacent to that property, and I simply wanted to reinforce the fact that I put about eight years of effort into trying to make that a viable tennis club. And, unfortunately, the way things are going in Naples with tennis clubs being subsidized by parks, by YMCAs, by all the new developments, it was entirely impossible to make that into a viable business. I reside next door by renting in a house that I used to own because I had to avoid foreclosure because of trying to run that as a business. It just won't work as a business, and I hope that -- I believe it will be an improvement to the neighborhood right now to bring in new housing. CHAIRMAN RAUTIO: So you support the project? MR. GONZALES: I entirely support the project. CHAIRMAN RAUTIO: Thank you. No other registered speakers? MS. MURRAY: No. CHAIRMAN RAUTIO: Okay. I close the public hearing. What's the pleasure of the board? COMMISSIONER BUDD: I'd like to make a motion to -- I'm Page 129 September 7, 2001 sorry, go right ahead. You're on. COMMISSIONER YOUNG: I move that our board forward Petition RZ-01-AR-823 to the Board of County Commissioners with the recommendation for approval subject to the restrictions. COMMISSIONER ABERNATHY: Second. CHAIRMAN RAUTIO: We have a motion by Mrs. Young and second by Mr. Abernathy for approval of the petition. Do we hear any discussion? (No response.) CHAIRMAN RAUTIO: Hearing no discussion, I call the question. All those in favor say aye. Aye. COMMISSIONER COMMISSIONER COMMISSIONER COMMISSIONER COMMISSIONER ABERNATHY: Aye. BUDD: Aye. PEDONE: Aye. PRIDDY: Aye. RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Thank you. Okay. We are almost to the end. (Mr. Budd leaves meeting.) CHAIRMAN RAUTIO: We are now on Item H. All those wishing to give testimony today on this item please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) CHAIRMAN RAUTIO: Okay. This is Conditional Use 2001- AR- 1156, conditional use for essential service. MR. BELLOWS: Yes. For the record, Ray Bellows. The petitioner's requesting conditional use approval to allow for an Page 130 September 7, 2001 expansion of the South County Water Reclamation Facility. As you can see on the visualizer, it's located on the west side of Wild Flower Way, and it's on the east side of Warren Street just slightly south of St. Andrews Boulevard in Lely. This is an existing site that's been in existence since 1971. It's been expanded several times over the years. This expansion will bring it up to 16 million gallons a day capacity over the current eight. The staff report, as you can see in there, lists the proposed expansion improvements. Some of those include devices that eliminate odors and reduce noise, so the proposed expansion will also be a benefit to the surrounding community in the fact there will be mitigation to noise and odor effects generated by this water-treatment plant. It's consistent with the future land use element, allows for central services, urban mixed-use district. There will be no traffic impacts resulting from this proposed expansion. Actually, there will be a reduction of trips due to less employees involved at the site. It's consistent with the criteria for condition use. Staff is recommending approval. I'll be happy to answer any questions you might have. CHAIRMAN RAUTIO: At this moment I'd like to disclose that I had a lengthy conversation with Roy Anderson, the director of the public utilities engineering section. Do we have any questions of Mr. Bellows? COMMISSIONER ABERNATHY: Water reclamation facility. That's a euphemism for a sewer-treatment plant; is that right? MR. BELLOWS: I'm not sure of all the things that goes on there. MR. DUANE: That's correct; it is. It's the south county wastewater plant. It is a reclamation facility for the water that goes out on the golf courses. COMMISSIONER ABERNATHY: But then you have Page 131 September 7, 2001 something left. MR. DUANE: That is correct. I have my engineering-- COMMISSIONER ABERNATHY: Effluence of some sort? MR. DUANE: That is correct. CHAIRMAN RAUTIO: Mr. Bellows, did you receive any negative communications? MR. BELLOWS: No. I have not received any communications at this time. CHAIRMAN RAUTIO: Okay. This was handed to me earlier today. It is a letter from the Lely CC Property Owners Association, Inc., dated the 7th of September. And it would appear that they're wanting to file a complaint against the proposed rezoning change. I'll just hit the highlights here. They are saying that they feel it's premature and that the -- and they recommend that it be disapproved and not submitted until the following is accomplished -- they have three different items. Is the person here that handed me this? Apparently not. We outlasted them. The first item is (as read): "Complete construction and place in operation a large equalization tank, 1.5 gallons -- the holding tank for incoming raw wastewater from pumping lift stations to equalize time of day, slash, time of year flows to the treatment plant. Two is, "Design and construct complete closure for truck loading dock for dewatered sludge being loaded into uncovered trucks at the docks waiting to transport to disposal site some 80 miles away." This is the -- possibly the main source of unacceptable odors that have been reported to us within the past couple of months by neighboring residents and others playing golf on the Royal Palm Country Club in the area west of the loading dock and sludge holding tank area. That was "A." Page 132 September 7, 2001 "'B,' Sludge holding tank. Construct any necessary safeguards to ensure that unacceptable odors are not coming from this building to be" -- excuse me -- "to see the aerial photo in the attached dedication brochure show the close proximity of the homeowners along St. Andrews Boulevard to the west as well as homeowners in adjoining Naples Manor to the east. These odors are unacceptable from the present $21 million state-of-the-art plant dedicated on 11/19/98." Third item. "The Lely Manor drainage ditch (canal) adjacent to the south side of the SCWRF is part of the Collier County No. 1, $2 million stormwater drainage project on the current agenda to be addressed and completed before any type of meaningful expansions to the SCWRF should be considered. The 8/24/95 storm that dumped fourteen-and-a-quarter inches of rain in as many hours severely -- excuse me -- seriously flooded our area, and the area of the reclamation for nearly a week. The project was programmed by the county in early 1995 and has not been started pending permitting and other approvals. The Lely County Club Property Owners' Association recommends disapproval of the zoning change and returned for possible consideration after the SCWRF and the East Naples stormwater drainage problems as portends to the East Naples Lely drainage ditch and Lely Manor drainage ditch problems are solved." Respectfully submitted, Dudley Chism, C-h-i-s-m, President of LCCPOA, and Howard T. Matson, M-a-t-s-o-n, who's the secretary-treasurer of the same organization. Okay. That's in opposition. MR. DUANE: Is that the only copy of the letter that you have? CHAIRMAN RAUTIO: Someone walked up, handed me the envelope, and said, "Here." So, if you would like to -- and there's some attachments. COMMISSIONER PEDONE: Madam Chairman? Page 133 September 7, 2001 CHAIRMAN RAUTIO: Yes. COMMISSIONER PEDONE: I have to leave. CHAIRMAN RAUTIO: You have to leave? COMMISSIONER PEDONE: Yes, I do. CHAIRMAN RAUTIO: Let the record reflect that Mr. Pedone had to depart. We still have a quorum. COMMISSIONER PEDONE: You still have five. CHAIRMAN RAUTIO: Yes. (Mr. Pedone leaves the meeting.) CHAIRMAN RAUTIO: Chain Mr. Priddy to his chair. Okay. We're ready to go. MR. DUANE: Good afternoon. For the record, Robert Duane from Hole Montes & Associates. I have a number of members of county staff that are here with me today including Mr. James Mudd and Roy Anderson and Alicia Abbott -- excuse me. I also have Dr. Ron Benson from Hole Montes is director of our utilities department. We were here today prepared to make either a very long or a short presentation. We are prepared to do both today. The letter that was read in the record has taken us a little by surprise. This morning we had a very cooperative relationship with our neighbors over a period of ten years as I can demonstrate and testify to this morning. But until I get copies of the letter, let me run through the -- my presentation and touch upon a few highlights here. The history of the plant Ray touched upon, but this expansion goes back to 1986 when the plant was originally anticipated to be 14 million gallons. I think in recent years it's increased to a 16-million- gallon-per-day plant. We were here in 1995 for a conditional use approval. We zoned the property in 1995 for the first time with the conditional use. We didn't indicate all the components that were going to be needed to get Page 134 September 7, 2001 the plant's ultimate capacity up to 16 million gallons a day in 1985, frankly, because not all of those improvements had been designed at that point in time. However, in 1996 we had a site plan approved after our 1995 approval, and we indicated for a number of the improvements that are going to be before you today were identified back as long as 1996, and now we're here to share with you the last expansion of the plant. We've had extensive meetings with neighborhoods including representatives of Lely going back to the early 1990s. In the application I provided you a history of our efforts, at least up through 1996, to try to satisfy and more importantly be a good neighbor including the provisions of extensive sound attenuation and landscaping and odor control mechanisms, but others can speak to those issues as we get a little further along here. But let me try to summarize what the request is for the record. We're making changes to access, and we're routing traffic in a way to lessen impacts on residential areas. This is largely at the behest of our neighbors, and we are trying to alter our traffic patterns to lessen our impact. We have a new pretreatment building with an improved odor control system that is part of our plan today. We have new aeration basins to provide additional plant capacity. We are constructing a new blower house building. We have an emergency power generator system that we're proposing, new clarifiers, improvements to existing clarifiers, construction of new clarifiers, and new filters and chlorine contract chambers. Again, these are improvements that have been anticipated over a very long period of time. Most of you know there are four criteria before you today -- and I'm going to try to wrap up here quickly. I know the hour's getting late. One, whether we comply with the comprehensive plan. Ray has already indicated that, in fact, we do. We are routing traffic a little Page 135 September 7, 2001 differently as I indicated. We used to come in through St. Andrews Boulevard, and we are now going to be rerouting that traffic. The traffic entering the site will come off 951 and go through Lely and come in off Wild Flower Lane, which is a new entrance. And our exiting traffic will be going out St. Andrews Boulevard out to Rattlesnake Hammock Road. As far as I know, that has made most people happy to get our truck traffic off of St. Andrews Boulevard and through the residential portions of Lely. That was the Criteria No. 2, and I would submit to you that we're fully consistent with that. The third criteria, as you know, has to do with the relation of the petition to noise, glare, and economic odor. I can go into that in some detail, but I won't right now, other than just to summarize that all the improvements and additions that we're making today have been designed to minimize potential noise, odor, and glare. The improvements have been designed to provide the same or better mitigation of noise, odor, and glare that were addressed back in 1995 when the project was originally approved. The fourth criteria we need to comply with today has to pertain to the compatibility with adjacent properties. In the district, as you will see, the proposed structures, which are yellow structures, are primarily concentrated along this edge of the property. I think Mr. Bellows has given a good description of the land-use relationship in his staff report, and the fact of matter is you've got an extensive preserve and landscape area, as you can see, off to the east of the site. And, frankly, along the western portions of the property, we butt up to a maintenance storage area building for the Lely golf course. So we're really not altering any fundamental relationship today, and I would submit to you that the proposed uses can be found compatible, and I will begin to entertain your questions and try to address some of the issues raised in this letter next. Page 136 September 7, 2001 CHAIRMAN RAUTIO: On our conditional use petition -- which we each must sign, by the way. I'm not sure they were attached to our packets, but they are in the back section, and it says "chairman" on it. I think each person has to sign this. Is that not correct? MS. MURRAY: Each person should have a sheet that they turn in to me when they sign. CHAIRMAN RAUTIO: The only place it seems to be is attached as Exhibit A on the back of what Commissioner Carter would sign as Chairman of the Board of County Commissioners. MR. BELLOWS: Yeah. Evidently, the other sheet that said "member" was missing. So if you just cross off-- if you're not a chairman, cross off "chairman" and write "member." MS. MURRAY: That will suffice. If you could turn that in, I would appreciate it. CHAIRMAN RAUTIO: Okay. On this particular item, I want to make sure I understand correctly here No. C, Item C, which is one of the things we must agree to here when we sign this. (As read): "Affects neighboring properties in relationship to noise, glare, economic or odor effects." Now, we have a choice to say, "Effect mitigated by." Mitigated by all the -- what you've presented us specifically? Is that going to be sufficient? Or do we have to name what we're going to mitigate this -- MR. DUANE: I'll be happy to add to the record some additional documentation that was provided in the application that speaks more directly to that issue, Madam Chairman. First, let me begin by noting that the improvements that were made in 1995 -- that is the preliminary treatment plant -- it was moved away from neighboring reSidential properties to the southeast portion of the site, which is that surrounded by that buffer area on the Page 137 September 7, 2001 plan. That's not something that's technically before you today. That was one of the issues we did to address some of the noise and odor problems. They're new scrubbers being proposed to handle airflow from the existing and new preliminary treatment facility. This modification will provide a separate odor scrubber for the preliminary treatment facility and has been designed to further improve on the removal of odor-causing constituents. I mentioned to you that we are expanding construction of the existing blower building to house new blowers. The addition of this equipment will not increase the decibel level of the perimeter of the property. We're providing, I noted to you, emergency power for the wastewater treatment plant. Operation of this power does generate some noise, although only during periods of operation. The existing emergency power facility enclosed is in a sound-attenuation building, and that contains the noise that this equipment will produce when in operation. We have a new electrical generator building, and that will include same sound-attenuation equipment as does the existing electrical and generator building. And this new facility will not increase the decibel level at the perimeter of the property. A new sludge holding tank similar to the existing holding tank is proper. The new sludge holding tank will have an odor-control system similar to the existing tank. And, finally, improvements will be made to the two clarifiers to result in rapid removal of floating matter from surface of these clarifiers, although odors are generally not associated with clarifiers. This improvement will reduce the possibility of odors coming from the existing clarifiers in the future, and I think that gets some of the points that I tried to avoid putting on the record earlier, and I now wish I had done that. CHAIRMAN RAUTIO: And now I can actually in good conscious check off, "Effect mitigated by items entered into the Page 138 September 7, 2001 record." Thank you very much. MR. DUANE: You are welcome. COMMISSIONER RICHARDSON: Mr. Duane, I don't think there's anyone of us that pretends to be sewage experts. You've got them all out there, and certainly your firm has done a credible job. But I am concerned about the apparent recent lack of communication with the homeowners as witnessed, if you will, by the information we received. I can't speak to the credibility of their comments or your responses. I guess what I'm going to propose is when it comes my turn after she's closed the public hearing, I would like to see this tabled for one meeting to give you-all an opportunity to go out there and talk to these people. I think you've got a good story. I think you've got all your bases covered, but it seems that it would be prudent to be a good neighbor and follow through on that. CHAIRMAN RAUTIO: I think there is an issue of urgency under DEP order. Would you care to address that? MR. MUDD: I'd like to address that. CHAIRMAN RAUTIO: Identify. MR. MUDD: I'm Jim Mudd, Public Utilities Administrator for Collier County. We've talked to the residents in excruciating detail. Originally, when this came up as an issue, it hit the papers before I had time to talk to Dudley Chism and the people that he represents. On February 17th we met with Fairways Villas Homeowners' Association. On February 20th, we met with the Lely Homeowners' Association. On February 22nd we met with the Lely Civic Association. On April 12th we met with the Royal Palm County Club. We've had Mr. Chism at our partnership meeting with the AE firm, the construction folks, and we sat through an all-day event to make sure that we had talked. Page 139 September 7, 2001 You have copies of a letter that Mr. Chism sent us -- can you please give it to the board and put it in the record -- where he sent us a request as we talked about the 16 of things (sic) that we could for the neighborhood to help his organization and whatnot. We answered that. The only thing that we couldn't do -- and one of them was to help with the odors from a lift station that was out on Rattlesnake Hammock, and we did that. And we did that. We're in the process of finishing that right now. Another was to provide free effluent water from the plant for the medians along St. Andrews in that process, and we agreed to that proposition. The other was to provide water to the lakes on the Lely golf course, but they are not lined, sir. And a non-lined pond is regulated by the ground water, the aquifer, as you know, and by putting effluent water in there, it just drains back out again, and it doesn't go anywhere. So we, basically, said unless you're willing to line them, that proposal would just wastewater instead of using it for irrigation in Collier County. We've been forthcoming with everybody out there to try to talk to them, and the night where it was really heated with the Lely homeowners, I apologized to them profusely, and Commissioner Fiala was sitting there with us along with the Florida Department of Protection representatives, my complete staff, as we tried to lay out this process to them. The -- and prior to that meeting, we had met with the Lely homeowners and talked to them about a 3 million gallon upgrade. This plan through the process was always going to be built out at 16 million gallons. The proposal that was out there that everybody had agreed to was 3-million-gallon proposal. When I looked at the process that we had in the springtime as far as the overflows were concerned and looked at the permits that had been issued for the county and Page 140 September 7, 2001 projected finishing -- or the finishing of those permits, found out that that 3 -million-gallon addition to the plant would just come in time for us to start building the next construction issue for them. And as I looked at the building permits that were issued and how they were coming to us in the county over the last three years, projected those out a couple of years as we went through -- and you can see that we're building all over the county -- I looked at the process and said, "Hey, these poor folks are going to be in a construction zone for ten years, and we're going to take it out to 16 anyway, so why not just do it once, get it over with, do it the right way, and make sure that we try to be good neighbors at the same time." You -- Hole Montes, our representative, explained an exit route that was going to go out here and cut through the process. We're paving that road out there. That entry road is going to become the permanent in and out egress after the plant -- this expansion comes online. We're going to get away from the Warren Street entrance that goes out to St. Andrews. So we're going to take a more -- less populated route to get in and out of the plant. And at the same time, down at the south end by Warren Street, we'll close that off. We'll landscape it. We'll put additional parking spaces in there, so the kids and the folks that need to get to the ball fields that are across the street have a better way to get there, and they have better access. And it makes it a whole lot better. So to answer your question, we have been engaged with the homeowners. We met with the homeowners and Mr. Chism and his folks three days ago. And they had mentioned about the stormwater issues, and we had Mr. Boldt there to answer the questions in that process. And that's a separate project for the county. And we talked a little bit about the sludge in the letter that Mr. Anderson passed out to you. We told Mr. Chism we tried to get to the sludge issues vis-a-vis a chemical solution. We've done some Page 141 September 7,2001 engineering things to change the piping to make sure the piping was flushed out at day's end from the press -- from the sludge press plant so that when it started up the next day, we didn't have remnants from yesterday's operation that could be a little odiferous, and it would be all be cleaned out, and it would start up with fresh water instead of having that process. So I don't know what else we can do, but we'll stay engaged with them, I promise you. COMMISSIONER RICHARDSON: Well, I appreciate that and, believe me, I don't need to be convinced that you're doing your job. We're very complimentary of the whole process. We just have another role here and that's trying to represent the public in this whole process. And having gotten this letter which sounded very informed, whether it was or not, I don't know. I guess I will back off from my view, then, of tabling this, and I know there's some urgency to go ahead with this, but when we do get to a vote and we approve it, I would encourage you to do just what you said at the end there. Do remain engaged and try to answer the specific issues that they are still bringing up. Maybe you can't solve them all -- MR. MUDD: Yes, sir. COMMISSIONER ABERNATHY: Is the 16 million gallons, that's the most this site will support? MR. BUDD: That's built-out, sir. We're done. CHAIRMAN RAUTIO: Any other questions? MR. BELLOWS: Yeah. I just have a correction to make on the conditions of approval. That's the last page of your staff report. It's attached to the resolution. Item C (as read): "the applicant shall be responsible for the construction of turn lanes at the project entrance on Wild Flower Way." There was an addition to that that was inadvertently left off, and Page 142 September 7, 2001 I'd like to read that into the record now. It's from the transportation department. (As read): "The applicant provides the detailed intersection improvements for St. Andrews and Wild Flower Way at the time of site development plan review as deemed necessary based on the traffic operation plan for the facility operation that's being prepared by the applicant." That's it. CHAIRMAN RAUTIO: That makes sense. Do we have any registered public speakers? MS. MURRAY: No. CHAIRMAN RAUTIO: No registered public speakers. I close the public hearing. What's the pleasure of the board? COMMISSIONER RICHARDSON: Madam Chair, I call for a motion to approve. That's the approval form. MR. BELLOWS: Does that include the additional stipulation? COMMISSIONER RICHARDSON: That's correct. COMMISSIONER YOUNG: I second that. CHAIRMAN RAUTIO: We have a motion by Mr. Richardson and a second by Mrs. Young for approval of this petition -- excuse me -- petition for conditional use. Do we have any discussion? COMMISSIONER ABERNATHY: Yeah. Mr. Duane, you were in on this last stipulation? MR. DUANE: Well, not -- and I just heard about it at this moment. I had no prior discussion on it. COMMISSIONER ABERNATHY: Do you understand it? MR. DUANE: I think I do. MR. BELLOWS: I have sent over a fax with the requirement to provide detailed intersection improvements on several occasions with other changes, but evidently this one didn't get caught up into the -- MR. DUANE: If it is something we need to do, we'll take care of it. Page 143 September 7, 2001 COMMISSIONER ABERNATHY: MR. DUANE: Yes, sir. Thank you. COMMISSIONER ABERNATHY: discussion. CHAIRMAN RAUTIO: No further discussion. question. All those in favor say aye. Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER PRIDDY: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: (No response.) Which is doable? Okay. No further Call the Those opposed, same sign. CHAIRMAN RAUTIO: Motion carries. Thank you very much. COMMISSIONER PRIDDY: Madam Chairman, I'd like to disclose that I had a discussion with Mr. Pickworth in regards to the next petition. CHAIRMAN RAUTIO: Okay. Any other ex parte communications? COMMISSIONER ABERNATHY: I had a discussion with Mr. Pickworth. CHAIRMAN RAUTIO: 949, an insubstantial change. Okay. We are now on PDI-2001-AR- All those wishing to provide testimony today please stand, raise your right hand, and be sworn in by the clerk of the courts. (All witnesses were administered the oath by the court reporter.) COMMISSIONER ABERNATHY: Is the county's transportation person going to testify on this? If so, she didn't take part in the oath. COMMISSIONER PRIDDY: Guess not. CHAIRMAN RAUTIO: She seems to be distracted. Page 144 September 7, 2001 COMMISSIONER ABERNATHY: Ms. Wolfe, are you going to take part in this? You missed the oath. (Ms. Wolfe was administered the oath by the court reporter.) CHAIRMAN RAUTIO: Thank you. Mr. Bellows. MR. BELLOWS: Ray Bellows with planning services staff. Petitioner seeks approval of an insubstantial amendment to the Forest Glen of Naples master plan to reinstate access points to the commercial tract. As you can see on the location map, the PUD is located on the southeast comer of Beck Boulevard and County Road 951. Forest Glen PUD goes back to when it was called Naples Golf Estates PUD that was approved back in '88. Back in '88 it showed access points to the commercial tract that's highlighted in yellow here on the location map. I have a copy of that original master plan when it was Naples Golf Estates. As you can see, at that time the PUD allowed for access points from Collier Boulevard and from Beck Boulevard to the commercial tract. It also had an interior connection from the residential tract that was approved with the Naples Golf Estates along this corridor (indicating). There's a thin strip of residential lots that were approved for this PUD originally. There was an amendment to the PUD. It was changed to Forest Glen of Naples. It rearranged the residential tracts and golf course tracts, and it eliminated that interior connection point and replaced it with golf course and a preserve area. There was a subsequent amendment to that to do minor changes to the PUD document, and at the time the access arrows into the commercial tract were inadvertently left off the master plan, thereby eliminating all access to this commercial parcel. So as the PUD currently stands, there's no arrows pointing to an interior connection or an exterior connection to this commercial tract. Page 145 September 7, 2001 Staff had several discussions with the county attorney's office. The best way to remedy this situation since it was not the purpose of the PUD amendment to eliminate the commercial access points off of Beck Boulevard and from County Road 951, we thought maybe a scrivener's error or something. But due to the traffic concerns in this area, we felt the best process to handle this situation was a master plan amendment process or the PDI process that we're doing today. And, as you know, the Planning Commission has approval of PDIs. It doesn't go to the Board of County Commissioners. There are some traffic concerns and operational concerns with the intersection of Davis Boulevard and 951. And our transportation department has deemed -- or has stipulated that there be an intersectional analysis done and maybe even restrict or eliminate the connection to 951 due to operational constraints and capacity problems on 951. Petitioner has felt that since this was an accident that these access points were left off, they are not agreeing to provide this intersectional analysis, and they feel that this was just a scrivener's error during the PUD amendment process that left off these connection points, and they are now requesting that the master plan looked like this with the arrows placed back into their development. CHAIRMAN RAUTIO: Mr. Bellows, I believe that Marjorie Student would like to comment. MR. BELLOWS: Yes. MS. STUDENT: Yes. I spoke with Ms. Wolfe and explained a PDI is for the purpose of making master plan changes only. If there are any textual changes that need to be made, our code requires that that go through an amendment to the PUD. And if there are any problems with the traffic here that require some changes in the transportation commitments in the PUD, then I would offer that a PUD amendment is what our code requires. That's my reading of it. Page 146 September 7, 2001 If there's any textual changes -- this is just for the master plan. PDI is just for the master plan and that when there's textual changes, there's different level of review, and it goes back through the Planning Commission and the Board of County Commissioners. MR. BELLOWS: Yeah. That's if it's deemed that an intersectional analysis is, in fact, warranted and this is not a typical scrivener's error correction to replace what was done. And what we've done in the past is PDI resolution could have a stipulation that's part of the PUD amendment process and wouldn't trigger that PDA. MS. STUDENT: Okay. CHAIRMAN RAUTIO: stipulation -- MS. STUDENT: MR. BELLOWS: excuse me. I'm sorry. MS. STUDENT: So you're saying we could have a No, no -- That doesn't affect the text of the PUD -- I'm comfortable with that then. COMMISSIONER ABERNATHY: I have a couple of questions then. Ray, it seems like the reason we're here is because the principal owner of the PUD, if you will, made a change to it where the owner of this tract that we're talking about wasn't noticed; right? MR. BELLOWS: That's correct. COMMISSIONER ABERNATHY: Okay. Well, that raises in my mind the question, does this person have a right to amend the PUD without notification to the people that own any percent of it? MR. BELLOWS: Yeah. I spoke with the Ronto Corporation president, and he's not opposed to this change. In addition, PDIs or PUD amendments, for that matter, can be made when there's various owners within a PUD district when it only affects their parcel. So you didn't need to get -- say Pelican Marsh. There may be multiple -- hundreds of owners at this point -- of property owners within that Page 147 September 7, 2001 PUD that would have to be notified and agreed to a PUD amendment. COMMISSIONER ABERNATHY: That's the very thing that didn't happen when the two accesses were erased. MR. BELLOWS: Yeah. And that wasn't the intent of the applicant either. They never proposed to have that done. It was just a scrivener's error, so to speak. The person who drew the master plan left off the arrows inadvertently. There was no intent to remove the arrows. It was just left offby the person who prepared that PUD master plan. COMMISSIONER ABERNATHY: Well, that leads to my second question, and that is the resolution that you've attached to the record. There's language to the extent that at the bottom of the page (as read): "minor design changes to Forest Glen PUD having the effect of revising the master plan to reinstate access points for the commercial tract and replacing same with residential development as authorized by the Forest Glen of Naples PUD." What does that mean? MR. BELLOWS: That language -- and I discussed that with Marjorie Student -- was a part of a problem with the creation of the document. We have a new system that pulls off the county computer system a text, language, and that was stuck in there for some reason, and we didn't catch it. And it's been corrected on the original. COMMISSIONER ABERNATHY: So there is no -- MR. BELLOWS: It's not replacing it with residential. COMMISSIONER ABERNATHY: Back when the other change was made that eliminated these accesses, that wasn't a trade for more residential -- MR. BELLOWS: No. COMMISSIONER ABERNATHY: -- units or anything -- MR. BELLOWS: Definitely not. COMMISSIONER ABERNATHY: -- of that sort? Page 148 September 7, 2001 MR. BELLOWS: No. COMMISSIONER ABERNATHY: Nothing of the sort? MR. BELLOWS: Nothing of the sort. That language you see there was just because we have a new system, and it pulled off a -- COMMISSIONER ABERNATHY: Another scrivener's error. MR. BELLOWS: -- a format, but we caught it, so it's not a scrivener's error. CHAIRMAN RAUTIO: So we read those things carefully -- MR. BELLOWS: I'm glad we do. CHAIRMAN RAUTIO: -- off the system. You guys are supposed to read them even more carefully. MR. BELLOWS: Yeah. But that one got through. COMMISSIONER RICHARDSON: But they create them. MR. BELLOWS: Well, we caught it. Unfortunately, it was corrected, but the packets we sent to you were done and mailed off before we could get you the revised -- COMMISSIONER ABERNATHY: So we can put a period after Exhibit A? MR. BELLOWS: That's correct. COMMISSIONER ABERNATHY: Okay. That was my question. CHAIRMAN RAUTIO: Any other questions for staff?. COMMISSIONER RICHARDSON: I'd just like to hear from the rest of the staff-- to hear traffic's reasons for the positions that they've taken just to get that on the record. MS. WOLFE: Dawn Wolfe, Transportation Planning Department Director. The issue with the access at these locations is this is a critical area for traffic congestion within Collier County. The Florida Department of Transportation is currently doing a project development and environmental study along with an interchange modification report for State Road 84 as well as the 1-75/951/84 Page 149 September 7, 2001 interchange area. Based on those evaluations underway, which will shortly come forward for public hearing, which we're going to make sure all these property owners are fully notified of, there will be some significant changes to accessibility to properties. There will probably be some significant restrictions on 951 based on what alternative may be chosen, right-in/right-out to the point of limited access whereby access may not be provided on that parcel. State Road 84 or Beck Boulevard east of the 951 intersection, based on information we have today, may be restricted to right-in/right-out access. So it will be significantly limited under a development proposal to improve -- which I believe we all understand that that location needs some significant improvements, especially at that intersection as well as State Road 84. The issues that we are concerned with is as a PUD and mixed use there should be interconnectivity between the residential and noncommercial land uses to the commercial land uses such that they are afforded the ability to go to the commercial and retail areas without having to access the arterial road system. By doing this we are forcing any of that residential development and not requiring modification of development to allow that interconnection internal to the site, but forcing everybody to have to go out onto either Beck Road or onto 951 in order to access that commercial area. That is not what the intent is of mixed use, to force what is part of a whole project out there. These are the concerns that we're bringing forward. We have concerns with how the intersection operates today and how interim access points could have conflicts with the 84/951 intersection. And we are asking, based on the fact that this originally was approved back in 1988 -- and we have had 13 years past -- and there's been significant changes in traffic patterns out there -- that there be an analysis of the access points, especially as Page 150 September 7, 2001 it affects the intersection of State Road 951 and State Road 84, so that we do not have further problems at that intersection, because as I think some of you can relate to from your travels out on our roads, turn lanes can cause problems at major intersections. And without doing a detailed evaluation of that, we cannot be assured that we will not be creating safety and operational, as well as congestion problems. And that is our reason for having requested this as an amendment versus being under just a scrivener's. We had previously requested that, but it had not come forward, and that's why there's a condition here -- we were not aware until this morning that a PDI only permitted for a map change -- MS. STUDENT: Mr. Bellows has stated that -- and there's been a number of these where we've added a condition, so I had stated that I was comfortable with that. MS. WOLFE: So as a condition of before they move forward, they are aware they are going to have to do a detailed analysis. COMMISSIONER RICHARDSON: Madam Chair? CHAIRMAN RAUTIO: Yes, Mr. Richardson. COMMISSIONER RICHARDSON: So am I to understand that it's possible that as a result of your analysis you may be recommending that there would be newly created internal circulation to the balance of the PUD? MS. WOLFE: We would always recommend that type of interconnection and where possible to introduce it where feasible. And that's why as we were reviewing the initial submittal, we went back through the document and because of the location of the parcel to the intersection, we did not evaluate it as being a scrivener's error. But one of this makes more sense to have internal connections to this parcel to the residential and nonresidential portions. It didn't make sense to us that it was just a scrivener's error, so we did not evaluate it in that sense. Page 151 September 7, 2001 COMMISSIONER RICHARDSON: I would certainly encourage you to explore that exhaustively because we don't need this internal traffic out on the roads where it could be handled inside. I know you've made that point, but don't be overswayed by the particular situation here. Go for it. CHAIRMAN RAUTIO: Mr. Priddy. COMMISSIONER PRIDDY: How would we force -- how would we force a connection at that point to the already existing community? MS. WOLFE: There are possible alternatives parallel perhaps to Beck Road. Where there are there -- the portion which lies just south of Beck Road and north of the canal is not -- I believe, is held in public hands. We may have opportunities there to move the access point further to the east whereby there may be the opportunity to connect with the residential road that currently has a connection to the north as shown on the PUD document. We have to look at it. There's been not enough information provided to do a full evaluation of that. And that's why we ask for the condition to be placed there and afforded that opportunity. COMMISSIONER ABERNATHY: What is the condition exactly? MS. WOLFE: The condition is that there be further intersection analysis provided prior to the submittal of the site development plan to determine the necessary improvements to permit development to occur at this location. CHAIRMAN RAUTIO: Let me make sure -- go ahead. COMMISSIONER ABERNATHY: It's one thing to have interconnectivity so that these -- this residential development can go into the commercial without having to go out on a major road, but the other side of that coin is, if you lock it in as it is now, everybody going to the commercial has to go through the residential, and that Page 152 September 7, 2001 makes no sense at all to me. MS. WOLFE: And we're not recommending that that be explicitly it. That's why we recommended that more detailed analysis be required because we cannot make a determination with the information that has been provided. We have no details as to what is going here or as to exactly what is out there adjacent to the property. COMMISSIONER ABERNATHY: Do you have the power to take away somebody's access once they have it if your studies show that it's a hazard or whatever? MS. WOLFE: There are means by which if it is a full and complete taking of their access, there would be compensation under the law that would be required to be provided to them. We do not try to take everyone's access away unless it is for a health, safety, and welfare issue and an overall public need. And we must demonstrate that completely. And that's not what we're saying to do here but that we have -- there's more issues out here than just a scrivener's error. CHAIRMAN RAUTIO: Okay. So I just want to be clear. If this scrivener's error hadn't occurred, you wouldn't be asking for the detailed intersection analysis? MS. WOLFE: I have been asking for them in the past onsite development plans, but on many occasions, if it is not included as a condition of the PUD or a conditional use, we have had to fight for and are not -- and we have a difficult time obtaining it. We have had instances where we have not been able to obtain it because it has not been a specific condition. CHAIRMAN RAUTIO: And I'm asking about this specific one. MS. WOLFE: This specific one, since we haven't submitted it and haven't been afforded the opportunity to look at it, that we are not -- we don't know. Based on discussions that I had with the applicant and his consultants earlier today, it's my understanding that they do Page 153 September 7, 2001 not want to provide it at all. CHAIRMAN RAUTIO: Okay. Mr. Priddy, you have a question of staff. COMMISSIONER PRIDDY: If I'm understanding this correct, if it were not for a scrivener's error, we wouldn't be here today, and we wouldn't be having any conversation about the traffic. And I find it hard to believe that we're going to hold a property owner who someone else created a scrivener's error without his knowledge, that we're going to take that little window of opportunity to raid his wallet. And I have a problem with that. CHAIRMAN RAUTIO: That's what my question was too. MS. WOLFE: My way of looking at it is not an intention of raiding his wallet but obtaining full information so that we do not adversely affect the health, safety, and welfare of the traveling public as this property is developed. I have requested the condition to ensure that we get full information we need to make the appropriate determination of improvements that should be placed on this system so that there is safe access and that the operational conditions adjacent to this critical arterial intersection are not adversely affected by the commercial development of this property. Without having that condition in there, we will at a staff level have a difficult time ensuring that we'll get this information. CHAIRMAN RAUTIO: Information or agreement? MS. WOLFE: Getting even the information to make a determination. It will then fall upon staff to have to do a very detailed level of evaluation, which should be the burden of the applicant at the time they turn in their site development plan. By having this condition, we are ensured that the applicant will have to provide it. CHAIRMAN RAUTIO: Okay. We might ask you a question or two after we hear from Mr. Pickworth unless we have another Page 154 September 7, 2001 question from a commissioner up here before -- MS. MURRAY: I was just going to ask Dawn, are you-all planning on amending the LDC or anything to implement this? I know -- I'm going to talk a little longer than I wanted to, but part of the problem we're having with these PUDs is that people are coming in and they are designating very specific access points even to the point of saying, "We're going to have a full median opening here. We're going to have a right mm in/right mm only here," blah, blah, blah, at a very conceptual level. We have no idea about what's going to be built on the tract other than maybe a maximum build-out of square feet, maybe, and it becomes very difficult for staff at the SDP level to evaluate those safety considerations and all the other master planning that's going on when we're approving very specific access points through a PUD process that is very generic in the type of land uses and the intensity of development that it permits. So I didn't know if there was any plans. I think this is following along the lines of what we're going to be doing in the future and what we're asking of SDP applicants at this point and all new PUD applicants at this point, but I didn't know if there was going to an amendment to the LDC, Dawn, or anything like that. MS. WOLFE: Quick answer is yes. MS. MURRAY: Okay. Thank you. MS. WOLFE: In process currently. CHAIRMAN RAUTIO: Mr. Priddy, just enlighten me for a minute. You've been around here for a long time. Don't access points sort of generate a lot of enthusiasm from neighbors and from property owners and other people, so we're almost to a point where, "A," you're asking for something conceptual and to fit into a bigger picture, but you can't get a project through this board without being so specific; is that not correct? COMMISSIONER PRIDDY: That's correct. Page 155 September 7, 2001 CHAIRMAN RAUTIO: Okay. So now we're changing -- we would appear to be changing our approach. COMMISSIONER PRIDDY: If someone came in with a project and says, "We're going to pick out the access points later," it isn't going to get through here. MS. MURRAY: I think -- a lot of it tends to be speculative. A lot of people come in and they rezone a PUD, and it becomes a very big selling point for their project to somebody on the outside. And I don't disagree with you necessarily, and I think that you do need to establish at least some sort of reasonable location, or is there going to be an acceSs here at this point or at this point, somewhere along this road. But the actual determination, I think what the transportation department is telling us, really needs to be at a time when we have very specific development plans for the property. CHAIRMAN RAUTIO: To me that's somewhat reasonable; however, I've been in this county for 22 years now, and I can see where the pendulum swings one way or the other. Because if we did that, be very conceptual an idea, my gosh, then we're not listening to the public and the neighbors who are going to complain and demand that that be done at that point. I mean, I can see where we are in a can of worms here. MS. MURRAY: And that may be a flaw of the current PUD process whereby we are not requiring enough detailed information at the time of rezoning to make those kinds of analysis. COMMISSIONER PRIDDY: But you're in the catch 22 there because very often at the conceptual part of the PUD no one knows. It's not that they don't want to tell you. It's just no one knows, and the market from season to season may change. And I think what we're seeing in a lot of cases is that there's fewer units per acre driven by not the nice developer wanting it that way, but by the market telling him that's the way it's going to be. And so we are in a catch 22. Page 156 September 7, 2001 CHAIRMAN RAUTIO: And then also the issue becomes -- which we're still talking about density, and we always seem to be approving projects lowering density. But we do have to get back to this very specific issue, this project, and determine whether or not we're going to put this condition or stipulation -- go ahead, Mr. Abemathy. COMMISSIONER ABERNATHY: I think Mr. Pickworth wants an access on each of these two roads. I don't know that he knows today precisely where they are going, so perhaps there's room to negotiate that once he knows he's getting the access on both roads. I'm not putting words in his mouth, but I don't see it spelled out here exactly where those accesses are going. MR. PICKWORTH: My name is Don Pickworth, and I'm representing the owner of the property, and I'm going to circle back. But let me respond to Mr. Abemathy directly. The county has part -- as part of its LDC and access management plan, and it tells you what access points you have. It pretty well locates them, tells you what the character of them are. And as it tums out, the access we're asking for here is the same access that's in the access management plan, so we're not asking for anything more and different than what's there anyway. And, in fact, the 1988 accesses that were to this project are pretty much the same as what's in the access management plan today. So we are simply asking to restore what was always there. Let me comment on a couple other points that were made that we've gotten fairly far afield. We started this process to -- as was suggested -- to rectify an error, an error that was not ours. We are the victim, if you will, of a change in a PUD. So we are simply trying to go back to what we always thought we've had since 1988. With regard to the traffic information to be submitted, it is my understanding from reading the site development plan rules in your Page 157 September 7, 2001 Land Development Code that there is information regarding the access points, turn lanes, signal information, etc., which is a normal part of-- being provided as part of the SDP process, so I'm not sure why we need to be engrafting, on almost a target of opportunity basis, these type of provisions on individual's PUDs. I was in here with a PUD right across the street just a few months ago, and there was nobody -- and it was the same administration involved. Nobody asked us for an intersection analysis. When we go through the site plan process, we'll have to turn in all this various information just like it says in your LDC. And so I guess in my logical mind it seems to me the rules of the game already cover all of this. And there's really no need to be going into -- I don't know what an intersection analysis is. It's not defined anywhere in your Land Development Code. Is it going to be different for one applicant from another? That's why we try to set these things all out in rules so that everybody knows going in what this is going to be. I don't think the staff-- if this intersection analysis requirement is taken out of there, I don't see where during the site development plan process there's going to be any prejudice to the staff on this. They have the right to require the relevant information as part of the SDP that they do from everybody else. And certainly with regard to internal access, obviously, I think you all recognize that is impossible today without a big check being written because there's existing preserve areas and golf courses, all of which have been approved by the county. So that's not even on the table at this point. CHAIRMAN RAUTIO: I just want to make sure I understood you correctly. Your access that you're asking to be restored, fixing a scrivener's error, is basically the same on the access management plan -- Page 158 September 7, 2001 MR. PICKWORTH: Yes. CHAIRMAN RAUTIO: -- from '88 to as it is now. MR. PICKWORTH: Yeah. Correct. I mean, it already provides -- the access management plan stuff in the LDC allows for a shifting for where these points are a little bit based on, you know, microconditions. That's always part of it. COMMISSIONER PRIDDY: Do we have anybody from the public? If not, I'd ask that you close the public hearing. MS. MURRAY: No registered speakers. CHAIRMAN RAUTIO: No registered speakers. Okay. Close the public hearing. What's the pleasure of the board? COMMISSIONER PRIDDY: Madam Chairman, I move that we forward Petition PDI-01-AR-949 to the Board of County Commissioners with a recommendation of approval -- COMMISSIONER ABERNATHY: That's us. COMMISSIONER PRIDDY: That's us. Okay. I recommend that we approve the petition without the wording of the providing the analysis for the intersection of 951 and 854 (sic) COMMISSIONER ABERNATHY: I second. CHAIRMAN RAUTIO: We have a motion by Mr. Priddy, a second by Mr. Abernathy -- who has seconded everything today -- for approval of this petition without the stipulation of the analysis of the intersection. Do we have any further discussion? COMMISSIONER RICHARDSON: Just a comment. I would encourage staff-- well, I would like to support staff in this. I would like to support staff. If there's some procedural issues here that we can get wrapped up into some new language in either the SDP process or other parts of the Land Development Code, I would encourage you to do that. That would then get us out of this awkward position. As it stands now, I have to support the motion. Page 159 September 7, 2001 CHAIRMAN RAUTIO: I have to feel that same way because I'd like to see something differently done, but targeting this particular issue here with the analysis I can't support that. COMMISSIONER PRIDDY: And I would caution you that making a change is not going to keep you out of this same position. It's just going to put you into a -- another can of worms, but ... CHAIRMAN RAUTIO: Okay. Hearing no further discussion, I call the question. All those in favor say aye. Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER PRIDDY: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER YOUNG: Aye. CHAIRMAN RAUTIO: Motion carries. Item J continued -- postponed until September 19th. I have one comment. You're raising your hand? MS. MURRAY: Commissioner Priddy, thank you for all your years of service. CHAIRMAN RAUTIO: Oh, yes. (Applause.) MS. MURRAY: And if you'll please return your LDC to my office, I'd really appreciate it for your next -- COMMISSIONER ABERNATHY: Wait just a minute -- COMMISSIONER PRIDDY: My LDC? MS. MURRAY: Yes. COMMISSIONER PRIDDY: I left that with Mr. Thomas when I took his place four years ago. CHAIRMAN RAUTIO: Don't leave quite yet. COMMISSIONER RICHARDSON: Was your hair black when you started this? COMMISSIONER PRIDDY: My memory doesn't go back how Page 160 September 7, 2001 far when my hair was black. I don't remember that. CHAIRMAN RAUTIO: Okay. I just wanted to say that that ends the public hearings we have, and I would like to point out two housekeeping items with this agenda. If you will look under old business, we have picked up the old approach to the word processing. Where old business should be No. 8 and 9 and renumber the rest of these, I would appreciate that immensely that we somehow find it in the system to correct that permanently on this agenda. MS. MURRAY: You want them numbered? CHAIRMAN RAUTIO: They're supposed to be numbered, yes. And the other item I would like to see is to make sure that the staff person responsible is included in each of the public hearings, that we state the name of the person. We used to have that all the time. The responsible staff person for each item would be very helpful. Do we have any-- that was old business. Any new business? Do we have any public comment? Okay. Scheduling. We've done that. adjournment. COMMISSIONER RICHARDSON: CHAIRMAN RAUTIO: We move for So moved. Okay. Thank you very much. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2'08 p.m. COLLIER COUNTY PLANNING COMMISSION Page 161 September 7, 2001 JOYCEANNA J. RAUTIO, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, 1NC., BY PAMELA HOLDEN, COURT REPORTER Page 162 COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION September 12, 2001 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 Mr. Donald A. Pickworth, Esq. Donald A. Pickworth, P.A. 5150 Tamiami Trail North, Suite 602 Naples, FL 34103 RE: Petition No. PDI-2001-AR-949, Naples Commercial, LLC Dear Mr. Pickworth: On Friday, September 7, 2001, the Collier County Planning Petition No. PDI-2001-AR-949. A copy of CCPC Resolution No. 01-21 is enclosed approving this use. If you have any questions, please contact me at 403-2463. Principal Planner Enclosure C: Naples Commercial, LLC 4912 Del Ray Avenue Bethesda, Mayland 20814 Customer Service Addressing (Peggy Jarrell) Land Dept. Property Appraiser M. Ocheltree, Graphics Minutes & Records (BD, PSP & PDI) ,"" File RB/cw Commission heard and approved PHOX i~ ~I ~ 1 ~ 403-2400 FAX (941) 643-6968 www. co.collier, fl.us PDI RESOLUTION NO. 01-21 RELATING TO PETITION NUMBER PDI-2001-AR- 949 FOR INSUBSTANTIAL CHANGES TO FOREST GLEN OF NAPLES PUD FOR PURPOSE OF REVISING THE MASTER PLAN TO REINSTATE ACCESS POINTS FOR THE COMMERCIAL TRACT ON PROPERTY HEREINAFTER DESCRIBED IN COLLIER COUNTY, FLORIDA. WHEREAS, the Legislature of the State of Florida in Chapter 125, Florida Statutes, has conferred on all counties in Florida the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public, and WHEREAS, the County pursuant thereto has adopted a Land Development Code (Ordinance No. 91-102) which establishes regulations for the zoning of particular geographic divisions of the County, and WHEREAS, the Collier County Planning Commission is authorized by the Board of County Commissioners to grant insubstantial changes to PUDs in accordance with Subsection 2.7.3.5 of the Land Development Code of Collier County, and WHEREAS, the Collier County Planning Commission, being the duly elected constituted Planning Commission for the area hereby affected, has held public heating after notice as in said regulations made and provided, and has considered the advisability of PDI-97-7, insubstantial changes as shown on the revised Naples PUD Master Plan for the Forest Glen of Naples (Exhibit "A"), Ordinance Number 99-69, for the property hereinat~er described, and has found as a matter of fact that satisfactory provision and arrangement have been made concerning all applicable matters required by said regulations and in accordance with Subsection 2.7.3.5 of the Collier County Land Development Code, and WHEREAS, all interested parties have been given opportunity to be heard by this Commission in public meeting assembled and the Commission having considered all matters presented, NOW THEREFORE, BE IT RESOLVED BY the Collier County Planning Commission of Collier County, Florida, that: The petition filed by Donald A. Pickworth, Esq. of Donald A. Piekworth, P.A, representing Naples Commercial, LLC, be and the same hereby is approved for making the noted minor design changes to the Forest Glen of Naples PUD having the effect of revising the Master Plan to reinstate access points for the commercial tract (Exhibit "A"). BE IT FURTHER RESOLVED that this Resolution relating to Petition Number PDI-2001-AR-949 be recorded in the minutes of this Commission and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote. Done this 7th day of September ,2001. ATTEST: JOI-~M. DUNNUCK, III Exe~/utive Secretary Community Development and Environmental Services Administrator COLLIER COUNTY PLANNING COMMIS SION COLLIE~ COUNTY, FLORI~N~ JO~CE~qNA J. RAUTIO~CHAIRMAN Approved as to Form and Legal Sufficiency: Marj Dri~,~. Student Assistant County Attorney RB/cw -2- II EXHIBIT "A" bJ _J