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CCPC Minutes 04/04/2002 RApril 4, 2002 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, April 4, 2002 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: CHAIRMAN: ..Kenneth L. Abemathy Lindy Adelstein Lora Jean Young David J. Wolfley Dwight Richardson Mark P. Strain NOT PRESENT: Russell A. Budd Paul Midney ALSO PRESENT: Marjorie M. Student, Asst. County Attorney Ray Bellows, Chief Planner, Planning Services Joe Schmitt, Administrator, Community Development & Environmental Services Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, APRIL 4, BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, 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 ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN 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, WRITTEN 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. 2002, IN THE COUNTY 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, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA - NO MEETING ON MARCH 21, 2002 4. APPROVAL OF MINLrI'ES -MARCH 7, 2002 5. PLANNING COMMISSION ABSENCES -RUSSEL BUDD 6. BCC REPORT - RECAPS FROM FEBRUARY 26, AND MARCH 12, 2002 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS Ao BD-2001-AR-1776, Jerry Neal, representing Ben Moore, requesting a 92-foot extension from the permitted 20 feet for a boat dock protruding a total of 112 feet into the waterway for property located at 66 Dolphin Circle, further described as Lot 91, Isles of Capri No. 1, in Section 31, Township 51 South, Range 26 East, Collier County, Florida. (Coordinator: Ross Gochenaur) 10. 11. 12. 13. Do Eo Fo VA-2001-AR-1696, James and Genevieve O'Connell, requesting after-the-fact variances in the RSF-4 Zoning District fi.om the 25 foot front yard setback requirement, to allow a 15.1 foot setback for the stairs (a 9.9 foot variance), and a 21.0 setback for the covered entry (a 4.0 foot variance), for property located at 183 Sunset Cay, further described as Lot 88, Port of the Islands, in Section 9, Township 52 South, Range 28 East, Collier County, Florida. (Coordinator: Kay Deselem) THE APPLICANT HAS REQUESTED THAT THIS ITEM BE CONTINUED UNTIL APRIL 18, 2002 - SEE ITEM B INSERT VA-2001-AR-1810, Dr. Louis Kastan, requesting a 4.9-foot variance from the required ' 25-foot rear yard to 20.1 feet for the principal structure and a 13.9 foot variance fi.om the required 25-foot rear yard to 11.1 feet for a second story porch for property located at 116 Connors Avenue, further described as Lot 24, Conners Vanderbilt Beach Estates Unit 3, in Section 29, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Fred Reischl) VA-2002-AR-2043, Raymond Bembe, of Bembe Brothers, Inc., representing Kathy and Goran Vlahovic, requesting an after-the-fact variance in the PUD zoning district from the 16.5- foot required side setback for the (fenced not screened) pool, to allow a 10.7-foot side setback along the eastern boundary and a 14.0-foot side setback along the southwestern property boundary for property located at 188 Topanga Drive, further described as Lot 78, Southpon-on the Bay, Unit 1, Plat Book 15, Pages 51-53, as recorded in the public records of Collier County, Florida in Section 6, Township 48 South, Range 25 East. (Coordinator: Kay Deselem) PUDZ-2001-AR-1842, (Formally PUD-00-20), Dwight Nadeau, of RWA, Inc., representing Thomas G Eckerty, Trustee for 1-75 Exit 15 Land Trust, requesting a rezone fi.om A, RSF-4, RMF-6, RMF-12 AND C-4 to "PUD" Planned Unit Development for property located in the southwest quadrant of the 1-75, Exit 15 Interchange, with fi.ontage on Davis Boulevard (S.R. 84), in Section 34, Township 49 South, Range 26 East, Collier County, Florida, consisting of 37.39-a: acres. (Coordinator: Ray Bellows) 01ESCHEDULED TO APRIL 18, 2002) PDI-2001-AR-999, Bernie Beckner and Nettie Richardson of Johnson Engineering, Inc., representing WCI Communities, Inc., requesting an insubstantial change to the Pelican Bay PUD Master Plan to allow the construction of an emergency access and service drive fi.om Bay Colony Drive northward to Vanderbilt Beach Drive to serve the residents of Bay Colony, for property located in Sections 4, 5, 8 and 9, Township 49 South, Range 25 East, and Sections 32 and 33, Township 48 South, Range 25 East, Collier County, Florida (Coordinator: Ray Bellows) OLD BUSINESS: NEW BUSINESS: PUBLIC COMMENT ITEMS DISCUSSION OF ADDENDA ADJOURN 4-44)2 CCPC AGENDA/SM/lo April 4, 2002 CHAIRMAN ABERNATHY: Good morning. I'd like to call the meeting of the Collier County Planning Commission to order, Thursday, April 4th, 2002. Please rise and join me in reciting the pledge of allegiance. (The pledge of allegiance was recited in unison.) CHAIRMAN ABERNATHY: Proceed with the roll call. Mr. Midney, absent. Mr. Adelstein. COMMISSIONER ADELSTEIN: Here. CHAIRMAN ABERNATHY: Mr. Budd, absent. Abernathy, here. Mrs. Young. COMMISSIONER YOUNG: I bring you greetings from The Great Wall of China. CHAIRMAN ABERNATHY: Welcome back. COMMISSIONER YOUNG: Thank you. CHAIRMAN ABERNATHY: We are expecting rain today, aren't we? Mr. Richardson. COMMISSIONER RICHARDSON: Yes. CHAIRMAN ABERNATHY: Mr. Wolfley. COMMISSIONER WOLFLEY: Here. CHAIRMAN ABERNATHY: Mr. Strain. COMMISSIONER STRAIN: Here. CHAIRMAN ABERNATHY: Addenda to the agenda. MR. BELLOWS: Yes. We have a couple of changes to the agenda. The first one is Item F that deals with PDI-2001-AR-999. The applicant has submitted a letter officially withdrawing the petition for-- from consideration. We also have Agenda Item D, a variance, VA-2002-AR-2043, Raymond Berube. The applicant is here, I believe. Based on correspondence with the county attorney's office, this item will be Page 2 April 4, 2002 withdrawn because, as it tums out, the technical aspect of why the variance was being applied for was not applicable in this situation; and therefore, a variance is not technically required to be acquired. So based on that fact, the petition will be withdrawn, since it wasn't really needed to be applied for in the first place. CHAIRMAN ABERNATHY: Well, do we need to formally withdraw it? Do we need to -- MR. BELLOWS: Well, if they withdraw it -- CHAIRMAN ABERNATHY: -- amend the agenda to omit it? MR. BELLOWS: Yes. You can make that motion. CHAIRMAN ABERNATHY: Now, Item F is the Pelican Bay/Bay Colony matter, is it not? MR. BELLOWS: Yes, it is. CHAIRMAN ABERNATHY: And that's been withdrawn? MR. BELLOWS: Yes. CHAIRMAN ABERNATHY: So I don't know how many people in the audience were here for the Pelican Bay/Bay Colony. We're not going to hear it today. It's been withdrawn. COMMISSIONER RICHARDSON: Let me just get this clarified, if I may. When it says "withdrawn," does that mean it's planned to come back at some future date? MR. BELLOWS: No. That means they have taken it back, and they do not want further consideration at all. It's not a continuance. It's -- they just changed their mind. COMMISSIONER RICHARDSON: All right. So the only way they could come back would be a new application -- MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- and start the process all over again, and so the public would be duly notified? MR. BELLOWS: That's correct. Page 3 April 4, 2002 COMMISSIONER RICHARDSON: So it's out. It's not going to happen. MR. BELLOWS: And I have one other change. Dealing with Item B, the applicant has requested that this be continued until April 18th. The applicant is here, Clay Brooker, and I think he's requesting that it be continued indefinitely. He may wish to speak on it, or you may wish to talk to him about it but -- CHAIRMAN ABERNATHY: He does want to address us? MR. BELLOWS: Yes. He signed up and left a -- CHAIRMAN ABERNATHY: All right. So I need-- guess we need a motion to approve the withdrawal of Item D -- COMMISSIONER STRAIN: I'll so move. CHAIRMAN ABERNATHY: -- is that not -- COMMISSIONER STRAIN: I'll so move, Mr. Chairman. COMMISSIONER ADELSTEIN: I'll second it. CHAIRMAN ABERNATHY: Okay. We have a motion by Mr. Strain, second by Mr. Adelstein. Any discussion? COMMISSIONER RICHARDSON: On the discussion, this is a situation that's already, in fact, happened. It's an after the fact. The problem is still there. How can he withdraw getting the problem corrected? MR. BELLOWS: The Berube Brothers? COMMISSIONER RICHARDSON: That's the D -- Item D, yes. CHAIRMAN ABERNATHY: Well, he says the problem isn't there. That they applied for a variance on a misapprehension of the applicable law, is the way I understand it. COMMISSIONER RICHARDSON: Okay. I'm not catching that. MR. BELLOWS: Yeah. The setback requirement in the Land Development Code dealing with accessory structures, pools and -- Page 4 April 4, 2002 and pool enclosures, states that the setback is the same as principal structure. Since this is in a PUD, the PUD has a setback requirement of half the building height or a minimum of 7 1/2 feet, I believe. In this case there is no pool enclosure, so there's no height part of the measurement, so you measure from the lip of the pool. And it meets -- easily meets the minimum setback requirements, so no variance is -- was required. It was missed by the planner who originally did the preapplication meeting, and the petitioner filled out the application and went through the process. And it was recently caught by staff, and we are now recommending that it be withdrawn, and the petitioner has agreed to withdraw it. COMMISSIONER RICHARDSON: So do I understand that the PUD, then, is less restrictive than our normal zoning? MR. BELLOWS: No, not necessarily. This one had a height component to it. If there was a pool enclosure, it would have been more restrictive than our current code. COMMISSIONER RICHARDSON: It's kind of disturbing that this gets this far before we find out about it. CHAIRMAN ABERNATHY: Any further discussion? Call the question. All in favor? (Unanimous response.) CHAIRMAN ABERNATHY: Opposed by like sign. (No response.) CHAIRMAN ABERNATHY: Motion carries unanimously. COMMISSIONER STRAIN: Mr. Chairman, if that's the -- I would like to make sure -- on old business I need to have a continued discussion on documents. CHAIRMAN ABERNATHY: What subject? COMMISSIONER STRAIN: Documents. Documents, like we have each month. Page 5 April 4, 2002 CHAIRMAN ABERNATHY: Documents. I'm sorry. COMMISSIONER RICHARDSON: Mr. Chairman, then do I understand we're down to just two items on the agenda today, A and C? CHAIRMAN ABERNATHY: It sure looks that way, doesn't it? COMMISSIONER RICHARDSON: Why did I get up this morning? COMMISSIONER WOLFLEY: For two items. CHAIRMAN ABERNATHY: Well, so we don't have them with everything else that seems to be bunching up on April the 18th, might be a tenable reason. Approval of the minutes of March 7th. I have considerable problems with those minutes. At page 158, after a somewhat confusing, abortive start down the road toward a motion to disapprove the Henderson Creek PUD, we reversed course and had a motion to approve it. Now, my clear recollection is, and the record tends to support it, that that motion passed 4 to 3. My recollection is that Mr. Richardson, Mr. Wolfley, Mr. Budd, and I voted yes; and Mr. Midney,Mr. Adelstein, and Mr. Strain voted no. Now, that is not at all how the vote is recorded on page 158, so that needs to be corrected. The other problem I have is not with the minutes themselves, but with an interpretation of them, and I might look to the staff for some guidance on this. On page 153 of the minutes -- Mr. Yovanovich, you might want to listen to this in case you disagree. Mr. Yovanovich said, "Where the only commitment you're making today is for 224 units, then vote against it, and let us have the opportunity to take -- to talk to our county commissioners." So that, to me, was what we have come to refer to as a stipulation between the applicant and -- and the Planning Commission. Page 6 April 4, 2002 So five days later-- five pages later -- it seemed like five days -- when we had a motion to approve, then wrapped in that motion, in our common practice, is approval of the 224 units, which is what Mr. Yovanovich had asked us to approve. The motion was a very summary one because we were trying to see where the votes were. And recognizing that, on page 159 Commissioner Budd said, "Yeah. Things wrapped up quickly. It was my intent that that motion would include all the stipulations requested of the petitioner that were agreed to in the dialogue and were entered into the record. "Chairman Abemathy: All right. "Commissioner Richardson: I'll accept that. "Miss Student: Can we -- oh, a clarification. "Mr. Yovanovich: That was our understanding. "Commissioner Budd: There was nothing new. I didn't add anything. I just want to clarify everything entered into the record accepted by the petitioner was part of the motion." Okay. Well, based on that record, it's fairly clear to me that we approved Phase I, 224 units. Now, when it got to the county commission, the packet told them that we had approved 500 units, and a newspaper reporter discovered that discrepancy, and I don't believe there was any discrepancy at all. A fair reading of the record supports the fact that we approved 224, which I think is what the county commission ended up approving. Do you disagree with anything I said, Rich? MR. YOVANOVICH: No, Mr. Abernathy. But I do -- I want to clarify what happened at the Board of County Commissioners meeting, just so -- so you understand. It was represented, when I made my presentation, that it was our understanding, although there may have been some confusion, that the planning commissioners only authorized 224 units. And that is exactly how it was presented to the Board of County Commissioners, and that is, in fact, what they Page 7 April 4, 2002 approved, was the first phase at 224 units. So it was consistent, at least with -- with what you're now saying. CHAIRMAN ABERNATHY: Right. Well, somewhere maybe we need, as a Planning Commission, to stop and catalog each of these items that we think have been resolved in the hearing as a part of the motion. That certainly is preferable. And that -- surprisingly enough, Mr. Budd's not here to represent himself, but he's usually in the forefront of doing it that way. But the record, to me, is very clear that that's what we approved. So subject to those comments, I have no problem. With those -- that's not a problem with the minutes, but the recording of the vote certainly was. Mr. Strain, do you have other items? COMMISSIONER STRAIN: You've caught them all. Thank yOU. CHAIRMAN ABERNATHY: Anyone else? All right. We need a motion to approve subject to the correction that I outlined. COMMISSIONER ADELSTEIN: So moved. CHAIRMAN ABERNATHY: COMMISSIONER STRAIN: CHAIRMAN ABERNATHY: by Mr. Strain. All in favor? (Unanimous response.) CHAIRMAN ABERNATHY: (No response.) CHAIRMAN ABERNATHY: Second? I'll second. Motion by Mr. Adelstein, second Opposed? Motion carries unanimously. Planning Commission absences. Let's take first -- I saw in the paper that we're having a meeting next Wednesday evening. That's the first notice, I think, I had of it. Maybe some of you knew, but we have an LDC meeting next Wednesday at 5:05. Any -- any of you plan to be absent from that? Page 8 April 4, 2002 COMMISSIONER ADELSTEIN: I may very well be absem. CHAIRMAN ABERNATHY: Well, that still leaves a quorum. How about the next schedule -- regular business meeting on April 18th? Do we have any anticipated absences on that date? (No response.) CHAIRMAN ABERNATHY: Okay. Chairman's report. I would just like to say briefly that since our last meeting, I've spoken informally with a couple of our county commissioners, both of whom expressed their overwhelming satisfaction with the job that the Planning Commission is doing, which I thought was very heartening. They don't -- don't always resolve a matter the same way we did, but they look to us to sort out some of the issues for them and at least highlight them. They may decide them differently, but at least we have flagged them for them. One of the commissioners also told me, in response to a letter that was in the paper yesterday, that certainly we're moving toward concurrency, but having a referendum on it is not appropriate at all because it cannot be done instantly. The fact that the voters might approve concurrency, the county couldn't implement it, so it would be sort of a meaningless gesture but -- so that's all I have in the way of -- of a report. We'll move -- COMMISSIONER RICHARDSON: Mr. Chairman, we skipped over Item 6. CHAIRMAN ABERNATHY: I'm sorry. Ray, do you have recaps from theFebmary and March BCC meetings? Anything significant? MR. BELLOWS: The one I was going to discuss was Henderson Creek, and I think you did a very good job of recapping that already. CHAIRMAN ABERNATHY: Well, verbose way, but nevertheless. Page 9 April 4, 2002 Okay. Now we'll move to advertised public hearings, Item A, Jerry Neal representing Ben Moore, requesting a 92-foot extension from the permitted 20 feet for a boat dock protruding a total of 112 feet into a waterway. All those wishing to testify on this matter should rise and be sworn. (The speakers were sworn.) CHAIRMAN ABERNATHY: Good morning, Ross. MR. GOCHENAUR: Good morning, Mr. Chairman. Good morning, Commissioners. For the record, Ross Gochenaur, planning services. The petitioner is requesting a 92-foot extension to create a docking facility protruding a total of 112 feet into a waterway which is over 1,000 feet wide. The property is located at 66 Dolphin Circle in Isles of Capri and contains about 60 feet of water frontage. The project consists of the construction of a 4-foot-wide walkway accessing a terminal platform and boat lift. The applicant has obtained a DEP permit for the dock and has applied for an Army Corps of Engineers permit. The dock could not be legally constructed without the approval of the Army Corps of Engineers. Two written objections to this petition have been received, citing concerns -- as concerns obstruction to navigation and aesthetics. You already have a copy of the first letter. The second letter arrived later. I'll briefly summarize that. It was sent by a Mr. Budge (phonetic), who indicates that his partnership owns the property on Pompano Bay. He doesn't tell us where that is. He states that he feels that the petition should be denied in order to protect and preserve the Pompano Bay marine environment and aesthetic beauty of the area. The available information to us indicates that there really is no apparent hazard to navigation and also that there's insufficient water at the site to allow the construction of a viable dock. The petitioner submitted this overhead photography of the area and has drawn on there the approximate location of the proposed Page 10 April 4, 2002 dock. There appears to be a shoal area between the terminal and the shore The petitioner has also submitted this drawing to go along with staff drawings, indicating that at what appears to be a low tide, there is very little water at the site. In the absence of evidence to the contrary, we feel that this petition meets all primary criteria, and we, therefore, recommend approval. The petitioner will answer specific questions, if you have them, about water depth of the project and so forth. COMMISSIONER RICHARDSON: Ross, do you have any independent knowledge about the depth of the water at the end of the proposed extension? MR. GOCHENAUR: Only that submitted by the petitioner in his drawing attached to the application. I have no reason to believe that that information is not accurate. COMMISSIONER RICHARDSON: And that -- and just remind me what the-- how deep it'll be at the end of that dock. MR. GOCHENAUR: The petitioner will explain this in detail, but it's my understanding that the DEP limits the protrusion of docks to minus 4 feet mean low water, which would indicate that at that point it would reach minus 4 feet mean low water. Again, the petitioner can answer your questions in detail. COMMISSIONER RICHARDSON: We've had a lot of debates about what the depth of the water could or should be at the end of a dock and as a justification for that dock, because a lot of it has to do with the size of the boat, which we don't regulate, and how much draft it has. I'm -- always feel fuzzy when we get into this area about what is really required and what we will approve. Now, you've -- you've recommended approval, so that suggests you've gone through some objective analysis, and I'm just trying to probe to make sure I know what that is. Page 11 April 4, 2002 MR. GOCHENAUR: Our criteria asks if the extension is the minimum necessary to accommodate the vessel in question. Aswe've discussed before, we don't feel that the county is in a petition (sic) to limit the size of a boat that someone can have. Obviously there are going to be certain practical limitations. But in this specific case, I feel that the size of the boat is compatible with the area of the water frontage. In addition, DEP permitting is more specific than our criteria in the protrusion limits for the dock. They have a specific water depth beyond which they won't allow the applicant to go. Unless we're in a position where we're prepared to either limit the size of the vessel and/or the draft of the vessel or limit the length of the protrusion, I feel that the criteria we have here is adequate to address most situations. Once again, you have a staff recommendation here that's based on my research, and it's been approved by the planning director,as well as the administrator. Therefore, it's a staff consensus. You still have the ability to disagree with my analysis and to reach your own decision on the petition. COMMISSIONER RICHARDSON: Well, I don't really want to disagree with you if it's -- if the analysis is based on our Land Development Code and what we will permit. It's just when we keep tinkering with that -- that language to give us a little more comfort level as to how we approach these so it can be somewhat uniform -- but when you get out to a thousand feet or, you know, big numbers, it's kind of scary. MR. GOCHENAUR: I think that some of your concerns may be addressed when petitioners -- petitions are submitted under the new criteria that were approved during the last amendment cycle. This is being submitted under the previous criteria. COMMISSIONER RICHARDSON: So the new criteria do not apply? Page 12 April 4, 2002 MR. GOCHENAUR: No, sir. Anything submitted prior to the approvalof that amendment would be reviewed under the earlier criteria. COMMISSIONER RICHARDSON: Thank you. CHAIRMAN ABERNATHY: Ross, do you know what -- this picture that's on the visualizer, what that's a picture of?. MR. GOCHENAUR: That's actually a picture of the site taken from the riprap shoreline looking out toward the waterway. CHAIRMAN ABERNATHY: That structure to the right is not part of this applicant's property; is that right? MR. GOCHENAUR: That's correct. CHAIRMAN ABERNATHY: You've been out there and looked at this site? MR. GOCHENAUR: Yes, sir, I have. COMMISSIONER STRAIN: I have two questions of Ross when -- before we go to the applicant. COMMISSIONER ADELSTEIN: On this project there are two photos, one on the second page and one on the third page. Are those on each side of the applicant's property? MR. GOCHENAUR: Let me get my map so I can give you some direction here. The photo on the first page, correct, that shows the boathouse that's located to the northwest of the subject property. COMMISSIONER ADELSTEIN: And the next one? MR. GOCHENAUR: That shows the facility that's located to the southeast. And I see a discrepancy here already. I was given these photographs by the petitioner yesterday, and I'll let him address this, but it appears that this may be taken from a site that's closer to this dock that's further to the southeast. I apologize for not having caught this sooner. Mr. Neal, do we have a discrepancy here? MR. NEAL: No. Jerry Neal, representing the owner. The only photograph that I had -- and it was taken about a month ago -- is five Page 13 April 4, 2002 doors down from the petitioner, and that was so stated in the cover letter, that this would show you visually what happens to that sandbar that you can see -- in the aerial photo looking down, you can see the brown water -- to be able to get a better feel of actually what happens to that. And, like I say, it was only a month ago, so this wasn't taken at extreme low tide or anything. This was just taken at a low tide. COMMISSIONER ADELSTEIN: I would still like a -- the two pictures that we got, second and third page, those are the ones on his left and his right? MR. GOCHENAUR: Yes, sir, that's correct. COMMISSIONER ADELSTEIN: Thank you. COMMISSIONER WOLFLEY: May I ask, on the picture that's on the screen, what is that red-looking dot up -- yes. Is that that boathouse that we have a picture of?. I can't tell. COMMISSIONER RICHARDSON: I think that's drawn in. COMMISSIONER WOLFLEY: Is that drawn in, and that's their -- MR. NEAL: That's the proposed dock. COMMISSIONER WOLFLEY: That's the proposed dock. Okay. CHAIRMAN ABERNATHY: Mr. Strain. COMMISSIONER STRAIN: Ross, on our packet, the last page, we had a site plan that was attached to it. In the paragraph in the beginning of the packet, you mention the facility is protruding a total of 112 feet into the waterway. On that site plan, can you show me where that 112 feet would be referenced? MR. GOCHENAUR: Is that in the petitioner's application? COMMISSIONER STRAIN: It's in the packet the Planning Commission received. I can't tell you if it was in his application. I got it from the county. It's right here. MR. GOCHENAUR: Okay. That would be the application. Page 14 April 4, 2002 COMMISSIONER STRAIN: The last page of that, there's a site plan with a series of numbers, none of which match the 112 feet, and I'm just trying to figure out how the 112 feet fits that site plan. MS. STUDENT: Mr. Chairman, I -- I need to put something on the record. And I've spoken with the petitioner, and I've spoken with Mr. Gochenaur. CHAIRMAN ABERNATHY: And you are? MS. STUDENT: I am Marjorie Student, the assistant county attorney. There appears to be a problem here with the utilization of the old criteria. It would be my legal opinion that unless we had had grandfathering language written into this amendment to the code, that anything that was in the pipeline before that went under the old criteria, that this should be analyzed under the new criteria. We had a similar situation happen by error a number of years ago with a boat dock extension where the criteria was changed, and a similar thing happened, and we had to bring it back under the new criteria. And, in fact, this would fly in the face of what's called thezoning in progress rule, where once an amendment has been proposed and blessed -- not actually adopted even, but it's in progress and the Board of County Commissioners or whoever the local governing body is has directed staff to do it, that if staff chose, they could even apply it, the substantive regulation, even if the law hadn't been passed yet. So this sort of flies in the face of what we call the zoning in progress rule. So I think that what we need to do is to continue this item and have it analyzed under the new criteria. I believe Mr. Gochenaur will tell you that it's not going to change the result, but we need to have a clean record. So -- and just so the petitioner has some comfort level that it's not going to change the, you know, suggested result, but we need to have a clean record. Page 15 April 4, 2002 MR. NEAL: May I inquire as to the substance change in the new rule versus today's rule? MS. STUDENT: Maybe we can clean it up on the floor. MR. GOCHENAUR: Was that question addressed to me or the assistant county attorney? MR. NEAL: Marjorie Student. MS. STUDENT: I'm sorry. CHAIRMAN ABERNATHY: Well-- MS. STUDENT: Would you repeat the question, Jerry? CHAIRMAN ABERNATHY: The question was -- he wants to be informed of wherein the change occurred. And it seems to me that we're not going to do that in this hearing. It's up to the petitioner to find out what the law is, and we're not going to have an exposition of it in -- MS. STUDENT: Staff should have that. CHAIRMAN ABERNATHY: -- this hearing. MS. STUDENT: But you see how the position where -- you're applying law that doesn't exist anymore, and we're applying it right here today, and that gives me a problem. CHAIRMAN ABERNATHY: Well, then we ought to go back to ground zero, then, and try it again. COMMISSIONER STRAIN: Do I --just out of curiosity, my question -- I know that it was a while ago now -- is there a resolution to that, just to put that to bed? Because that -- is this graphic inaccurate? Because that might just be another reason why this ought to be continued, to get the proper documentation, as well as look under the new rules. MR. NEAL: I can explain that, if you would like. COMMISSIONER STRAIN: Well, I asked the county, if you don't mind Jerry. Ross, do you -- based on that site plan, do you Page 16 April 4, 2002 know how the 112 would fit in here, or is it really 135 feet we're looking at? MR. GOCHENAUR: It's not 135 feet. The measurement's taken from the new property line because part of that land area that is between the mean high water line and the original lot line was quitclaimed to the owner. Again, I -- I will defer to Mr. Neal for a further explanation, but the measurement would be the 110 feet between that property line and the outermost piling, with a 2-foot margin that, I'm assuming, the petitioner is asking for. COMMISSIONER STRAIN: Okay. Thank you. MR. GOCHENAUR: Again, Mr. Neal, I think, could explain in greater detail. COMMISSIONER STRAIN: I just wanted to know how staff looked at this site plan in reference to the 112 feet that was on your report, because I couldn't match the two up. MR. GOCHENAUR: That would be -- COMMISSIONER STRAIN: And I understand now. CHAIRMAN ABERNATHY: Ross, I don't want to lecture you here in -- with a roomful of people, but it seems to me that the staff has to have its own independent understanding of what the paperwork submitted to it is, what it imports, and be prepared to answer questions about it. It just is not satisfactory to me to duck these questions and defer to the petitioner when it's something that is a part of the application. So -- MR. GOCHENAUR: No, sir. I'm not about to do that. But if the petitioner asks to address the question, it's my understanding that he would have a right to do so. CHAIRMAN ABERNATHY: After we've heard from you as to your understanding of it, and apparently you are not able to respond to that. Page 17 April 4, 2002 MR. GOCHENAUR: I -- I believe at least I made an attempt to respond to Mr. Strain's question. COMMISSIONER STRAIN: I understand your response. Yes. I'm satisfied by your response. CHAIRMAN ABERNATHY: Now, what are we going to do about the oldversus the new law, before we start talking about 1127 COMMISSIONER RICHARDSON: Mr. Chairman, I -- from what I hear fromthe county attorney -- and I will support her position on this commission -- is that we should apply the law as it currently stands. That was an area that I questioned earlier and got a different response on, but I appreciate the clarification. And if that's what the new rules say and that's what we should -- and we should follow those, then that's what I would support. MS. STUDENT: And I just want to state again for the record that there is precedence for what we are doing inasmuch as this happened by error before with a boat dock extension, about maybe four years ago, when criteria were changed, and we had to bring it back through under the correct criteria. If there were a -- it would be my opinion if there were a provision in the land code amendment that changed this, that grandfathered folks at a point in time, such as we did for thefinal order, that if you had a completed application in by the effective date of the final order, then your development wasn't subject to the development order, you know, in the administration commission case -- if we had language like that, then I would be, you know, okay with this. But we don't have any grandfathering language like that. And, as I stated, this flies in the face of the common law zoning in progress rule. CHAIRMAN ABERNATHY: Well, Mr. Neal claims not to know what the changes import, so he's at a loss to know how he can represent his client. Page 18 April 4, 2002 MS. STUDENT: I think the easiest thing to do is to continue it and allow staff an opportunity to analyze it. I don't think it -- I'm told that perhaps the change -- I'm told the changes will not alter the result inasmuch as what the staff recommendation is. So it would require just a reanalysis of the petition utilizing the new criteria and bringing it back to this board with the staff recommendation under the new criteria. CHAIRMAN ABERNATHY: You think that could be done while we're hearing Item C and then bring it back, or is it a more lengthy process than that? MR. GOCHENAUR: Sir, that would be impossible. CHAIRMAN ABERNATHY: MR. GOCHENAUR: No, sir. COMMISSIONER STRAIN: Would not be possible? Mr. Chairman, one of the -- and, Ross, maybe you could help me with this. One of those many rules that we approved for the new dock considerations was trying to avoid changes in docks constantly coming before this board. And we worked out some kind of a rule that if it was within a certain percentage of the width of the waterway, it could be done administratively. Would this come under that criteria where they may not even have to come before this board, or do you still feel they're going to come -- have to come before the Planning Commission with this? MR. GOCHENAUR: The only change that would involve administrativeapproval of a dock greater than 20-feet protrusion would be those docks on unbridged barrier islands for which DEP permits have been issued. All other petitions would continue to come before the Planning Commission. The principal changes in the code involve developing more substantive criteria for evaluation. COMMISSIONER STRAIN: Okay. I just was wondering if that might relieve everybody of this situation at this point. But I Page 19 April 4, 2002 would agree with Ross. If this has to be heard under the new rules, I, as a Planning Commission member, would like the opportunity to investigate those rules on my own as well, and I couldn't do that here today. CHAIRMAN ABERNATHY: continuance. COMMISSIONER STRAIN: Well, let's have a motion for a I'll so move it. COMMISSIONER ADELSTEIN: But let's not continue it to the 18th, please. We've already got an agenda that's gigantic for the 18th. CHAIRMAN ABERNATHY: Well, I don't know what the agenda is for the 18th. I know of two items but -- three. MR. BELLOWS: Commissioner Abernathy, ifI may make a suggestion. CHAIRMAN ABERNATHY: Yes. MR. BELLOWS: Can we recommend an indefinite continuance to allow staff time to prepare a revised report and analysis? CHAIRMAN ABERNATHY: And for the petitioner to be ready to come back. MR. BELLOWS: That's correct. COMMISSIONER STRAIN: I'll so move. COMMISSIONER YOUNG: Second. COMMISSIONER ADELSTEIN: I'll second. COMMISSIONER RICHARDSON: Discussion. CHAIRMAN ABERNATHY: Discussion. Mr. Richardson. COMMISSIONER RICHARDSON: I -- I note from Ross that there are people that have objected to this in the -- in your package. MR. GOCHENAUR: Yes, sir. We have two written objections. COMMISSIONER RICHARDSON: So I just want to make sure that that public becomes fully -- in this process we have a way to notify the public we're going to continue this indefinitely. Indefinitely -- Page 20 April 4, 2002 MR. BELLOWS: If it goes beyond the advertised time line, then we'll have to readvertise. COMMISSIONER RICHARDSON: So we can make sure that the people thatare interested in the outcome of this have an opportunity to -- MR. BELLOWS: And we do have one speaker today, if you'd like to hear from the speaker. COMMISSIONER RICHARDSON: Well, if we continue it, I don't think we -- CHAIRMAN ABERNATHY: I don't think we should, no. COMMISSIONER RICHARDSON: But those persons need to be able to -- as long as we have a process to notify those people. And perhaps we could specifically notify the people that have shown up -- taken the time to show up here today to make sure that they get noted as to the time and date of the continued hearing. CHAIRMAN ABERNATHY: Any further discussion? Call the question. All in favor? (Unanimous response.) CHAIRMAN ABERNATHY: (No response.) CHAIRMAN ABERNATHY: MR. NEAL: Thank you. CHAIRMAN ABERNATHY: Opposed by like sign. Carried unanimously. Next item, C, VA-2001-AR- 1810, Dr. Louis Kastan requesting variances. I'm sorry. Were you going to address us? MR. BROOKER: Yes, Your Honor. I -- Mr. Chairman, I apologize for the interruption. I'm here on Item B. Name is Clay Brooker for the record. CHAIRMAN ABERNATHY: Right. Right. We remember yOU. Page 21 April 4, 2002 MR. BROOKER: I just wanted to clarify that it has been indefinitely continued. CHAIRMAN ABERNATHY: Well, according to the agenda, it's continued until April the 18th. Is it -- is there something more recent than that? MR. BELLOWS' Yeah. The petitioner has decided that based on the plans that they're working on revising, they may not even need to come back before you. But until those plans are finalized, they need an indefinite continuance. And instead of coming back after each meeting -- CHAIRMAN ABERNATHY: Right. So the 18th is no longer a valid -- MR. BELLOWS: That's correct. CHAIRMAN ABERNATHY: I think we're certainly -- since it was our suggestion that you do this, we'd be hard-pressed to deny it, but we do need a motion to continue it indefinitely. COMMISSIONER RICHARDSON: So moved. COMMISSIONER YOUNG: Second. CHAIRMAN ABERNATHY: Richardson, second by Mrs. Young. All in favor? (Unanimous response.) CHAIRMAN ABERNATHY: (No response.) CHAIRMAN ABERNATHY: MR. BROOKER: Thank you. CHAIRMAN ABERNATHY: Okay. Motion by Mr. Any discussion? Opposed by like sign. Carried unanimously. Thank you very much. Now we'll move to Item C, the Kastan variance request. All those expecting to testify on this item, please rise and be sworn. (The speakers were sworn.) COMMISSIONER STRAIN: Disclosures? Page 22 April 4, 2002 CHAIRMAN ABERNATHY: Disclosures. COMMISSIONER STRAIN: Yes. I had a meeting yesterday with the applicant's representative, Mr. Yovanovich. We went over some of the setback criteria, which led me to some reviews last night of the LDC to which I had a meeting with Mr. Reischl before this meeting this morning about a concern I had over something I learned at Mr. Yovanovich's meeting yesterday. And I'm sure Fred's going to get into that in a minute. CHAIRMAN ABERNATHY: Any other disclosures? Mr. Reischl. MR. REISCHL: Good morning, Commissioners. Fred Reischl, planning services. And let me first point out, as Mr. Strain did, an error in the staff report in which I say that balconies can project 5 feet into the rear yard if they're unroofed and unenclosed. That's true for multifamily. For single family it's 3. This does not affect my analysis because I did the analysis on the entire 9-foot encroachment, but I apologize for the -- for the error in the staff report. This is a variance on -- in the Vanderbilt Beach area not within the moratorium area. You can see the location at the end of a cul-de- sac. And this is the footprint of the house. And the house, as it has existed for over 25 years, does not meet the required rear yard setback. During the renovation of the house to add a second story, an additional 2 feet, as you can see in red, was added beyond the encroachment that the original house had. It'll become a little more clear. I have some photographs, and here's an aerial of the house. This is the subject house, and this is the area of encroachment over here. You can see the neighbor to the north and the neighbor to the south. And I visited the site during construction, and you can actually see the existing linoleum, I guess, of the -- of the old house and then the additional 2-foot extension that was placed on the house. There Page 23 April 4, 2002 are -- the builder was explaining about the supports are there to temporarily allow the construction to continue on the rest of the house while the building department had a -- no more construction on this area of the house that encroaches. And this is probably the best photo to show you exactly what the encroachment is. The white stucco is the existing house, and then the bare cinder block is the encroachment. And this photo shows the -- the additional 2 feet and-- as well as the balcony, which was not shown on the footprint survey. When I went out to take the pictures, we-- CHAIRMAN ABERNATHY: Can you pull that down just a little bit? MR. REISCHL: Sure. So that projects 9 feet from the required 25-foot rear yard. This is just a different angle of the house, again seeing the approximate 2 foot over here, and then a view around the comer. The cinder block is the encroachment, and that's the -- the house to the north. In my staff report, I stated that I did not think view was a consideration because of the windowless wall over there and the orientation of the house to the north, the opposite way. Since I wrote my staff report, I got a call from that neighbor who stated that view would be a concern to her. I don't know if she's here or not, but that was one of the letters that I -- I passed out this morning. So staff's recommendation -- there are, I point out, some ameliorating factors: that it is adjacent to the water. But staff's recommendation is that the -- the variance that's requested be denied and that the variance that would allow the existing -- excuse me -- the original wall to continue to exist be granted. COMMISSIONER STRAIN: Fred, what letter did you pass out about the view this morning? MR. REISCHL: It was from the same person. Let me make sure it does concern view. Page 24 April 4, 2002 COMMISSIONER STRAIN: That's where -- I think where I'm having -- the one I got this morning -- MR. REISCHL: Jean Carpenter. And I'm sorry. She also gave me some photos and asked me to show you those photos. COMMISSIONER WOLFLEY: Is that the one at 104 Conners Avenue? MR. REISCHL: No. It's the one -- Jean Carpenter. COMMISSIONER STRAIN: That's this one. That's a-- that's a letter about tidal flooding. MR. REISCHL: Yes. I'm sorry. She told me on the phone that it would affect view. And you're right. That's not in her letter. And she asked me to show the photos of the flooding, and she marked this. The red line is her sea wall, and you can see the lagoon out there is sort of-- no delineation between her back yard. And this is another photo of her back yard. COMMISSIONER STRAIN: Was there some connection between the tidal flooding and the construction of the house next door? I mean-- MR. REISCHL: The -- the elevation of the house next door is not being changed. That was a question when this variance first came in. The building department did an analysis, and it did not meet the criteria to have to elevate the entire house. So as far as the planning department is concerned, no, it's not a concern. It is a concern to Ms. Carpenter. COMMISSIONER STRAIN: I was just wondering if you knew of any. MR. REISCHL: No. COMMISSIONER RICHARDSON: Mr. Chairman? CHAIRMAN ABERNATHY: Mr. Richardson. COMMISSIONER RICHARDSON: Fred, do we have any pictures -- or maybe you showed them, and I missed -- the house the Page 25 April 4, 2002 other direction, is there any -- I know view is -- tends to be outward, but I suppose there's views both directions. MR. REISCHL: I didn't take a specific photo. I can show you the aerial. COMMISSIONER RICHARDSON: Show me where that house is. MR. REISCHL: Sure. That would be this house on that side. I didn't think that was as affected as the house to the north. COMMISSIONER RICHARDSON: Do I understand, Fred, that this house was constructed at a time when it met the zoning code of the time that it was built, or was it built illegally to begin with? MR. REISCHL: It's not legally conforming. The rear yard at the time was 25 feet. However, rear -- spot surveys were not required. That's the conclusion that I came to, that it was supposed to have a 25-foot rear yard, and lack of spot survey caused it not to. COMMISSIONER RICHARDSON: It's interesting. We have -- we have the other case out in Port of the Islands where they're having a variance because they tried to get more back yard by moving the house too far forward. Now in this case it looks like we're having the opposite. They're moving it too far backward so they can have more front lawn. It's just a puzzlement to me. MR. REISCHL: Well, just to help you with that, it's probably not more front lawn because, as you can see, the -- the lot's on a cul- de-sac. COMMISSIONER RICHARDSON: Well, this just demonstrates it was -- the house is too big for the lot based on current zoning. MR. REISCHL: For the-- if-- COMMISSIONER RICHARDSON: We would not permit this house to be built today. Page 26 April 4, 2002 MR. REISCHL: On one side you can see the 7.2 feet, which they received an administrative variance for. On the other side, it's 10.6. So it could be -- I didn't do the calculations, but you couldshift it more to the south and shift it forwards. So it -- it -- without doing an analysis, just by looking at it here, it possibly may have met that 2.9 feet if you shoved it a little bit forward towards the road. COMMISSIONER RICHARDSON: But the fact is it's where it is, and it's -- MR. REISCHL: Exactly. COMMISSIONER RICHARDSON: -- not within code. MR. REISCHL: Exactly. It's been there for 26 years, and that's why we're recommending approval of the existing -- excuse me -- the original wall and not the additional -- COMMISSIONER ADELSTEIN: The 2.9? MR. REISCHL: Yes. COMMISSIONER RICHARDSON: Your remedy then, if I hear it correctly, would be they'd have to -- the part that's shown in orange on this would have to be torn down? MR. REISCHL: Yes. COMMISSIONER RICHARDSON: And how about the overhang, then, upabove? Would it have to be pulled back? MR. REISCHL: It would be allowed to project 3 feet beyond that. CHAIRMAN ABERNATHY: Beyond the original wall? MR. REISCHL: Yes. If the variance is granted for the original wall, then the balcony could project an additional 3 feet beyond that. COMMISSIONER RICHARDSON: So in terms of what the people next door see today, given that this was corrected the way you're suggesting, they would have nothing different than they currently have. They'd have the same view line. Page 27 April 4, 2002 MR. REISCHL: Except for an unroofed, unenclosed balcony on the second floor. COMMISSIONER RICHARDSON: Which would only protrude as much as code would allow? MR. REISCHL: Yes. CHAIRMAN ABERNATHY: Three feet. COMMISSIONER STRAIN: If the unroofed, un -- if the unroofed balcony that was, say, a 3-foot ex -- extrusion was there, I think your aerial showed a boathouse right in front of that as well; is that correct? MR. REISCHL: That's what the property appraiser's aerial showed. When I went out there, there was not a boathouse. I have heard a neighbor say that it -- there is another one under construction now. I have not seen that. COMMISSIONER STRAIN: The only reason I'm saying that is if the boathouse was there with a roof on it and the balcony was there -- whether it was 3 feet out or 5 feet out -- with a roof on it, you don't have much of a view between the boathouse and the balcony anyway, and I'm just wondering what's lost by a couple more feet. I'm not saying this is still right. I'm just curious as to the reasoning in that, so I guess we'll -- we'll learn later on today. CHAIRMAN ABERNATHY: Hear from the petitioner? MR. YOVANOVICH: For the record, Rich Yovanovich. Mr. Abemathy, I have a couple of exhibits, so I'm going to speak from this podium so I can put it on the visualizer. CHAIRMAN ABERNATHY: Fine. MR. YOVANOVICH: I want to start out by pointing out what -- what, you know, Fred has already pointed out to you, is this is a home that my client, Dr. Kastan, purchased that, at the time he purchased it, violated the setbacks on the rear yard. This error, quite candidly, was not caught by those people who represented him at the Page 28 April 4, 2002 time, and he is working to address that situation with those individuals. However, he has requested a variance to attempt to remedy the old home and some additional issues with the new construction, and I'd like to go through that. What I'd like to show you is this is the area in question in more detail. As you will be able to see -- I don't know if-- anyway, I'll point that out. But anyway, there's no -- there's no denying a mistake happened. Okay. It was a mistake. I'm not -- I can't tell you it wasn't. I can tell you that I -- I have not heard anybody allege that this was an intentional attempt to defeat the existing zoning requirements and in an attempt to build a house that is larger than the lot-- would be allowed. I mean, if you look at the backup materials, you'll see the front yard setback is 30 feet, and the home was actually pushed back 47 feet. And the house is angled on the lot, so it could have easily been moved forward to meet the requirements. But this is an older home. This was done back when spot surveys were not required, and a mistake happened. We can't do anything about that. I think it would be a harsh result to require the destruction of a portion of an existing home that nobody has complained about for many, many, many years. In addition, what happened is the request for the additional 2 feet. If you look at the staff report, it looks like we're asking to encroach 4.9 feet in the entire area. What we're really requesting is 4.9 feet-- and I'll -- on the left-- left-hand tip and down to 2 feet on the right-hand side. And it's for a small portion of the house; it's not for the entire home. That should hopefully give you a little bit of a better example of where we are. What that results in is a square footage, basically for the pad, of 48 square feet of an encroachment. What we're requesting and what we would hope to be attached to a resolution approving the variance -- being optimistic -- is that this Page 29 April 4, 2002 specific survey and sketch be attached so it is clear that we're not asking for an encroachment of 2 feet across the entire back yard. The Land Development Code -- the Land Development Code, in the variance criteria, specifically recognizes that the -- there are times when the code -- for very good reasons, a variance from the code requirements can be granted. There are three -- basically three criteria. Ray, you're going to have to help me. I don't have the -- there are three circumstances where a variance -- you'll never be able to -- I'll read it to you and hopefully slow enough for the court reporter. There are three instances when a variance can be granted under the code. The first is in specific cases variances from the terms of the zoning code may be granted where said variance will not be contrary to the public interest, safety, or welfare, and where owing to special conditions peculiar to the property, a diminution of the regulation is found to have no measurable impact on the public interest, safety, and welfare. That's one of the criteria. And I submit to you that what we're requesting today meets that first type of variance request. And I'll get into greater detail on that. As I said, the first -- I'd like to divide this into two -- two requests: the variance for the original home, which is 2.9 feet in a portion, and the additional request for another 2 feet for the extension. I hope that the variance for the original home is -- is not a major issue, and I'll try not to spend too much time on that unless it is a major issue for the Planning Commission. But on the additional 2 feet, the addition went through the normal review process, which requires a survey and the plans of the home to be approved. Now, the construction -- the contractor on this particular project is Dominic Novello, who is here. Mr. Novello's been here since 1991. He's built many homes and many renovations. He has never appeared before you with a request for an after-the-fact variance in Page 30 April 4, 2002 the past. He has appeared for you -- before you in the past when -- when it was called to his attention before he started construction for a variance. So Mr. Novello, when he knows there's an issue, has done it the right way, which is to come for the variance first and not after the fact. So I think that that should be considered in the Planning Commission's deliberations, as to was this an intentional mistake or-- which then is not a mistake. I mean, that's not a mistake. And I'm not -- if I had any idea that this was done on purpose, I would not be here. If it was unintentional, which everything indicates -- has this builder had a history of having these so-called unintentional mistakes? And I think the record's clear that this contractor is not one of those types of contractors that has made a history of coming with these so-called unintentional mistakes. The property's located on a cul-de-sac. You've seen -- you've seen the aerials, and I'll put that back up. When you look at the home on that aerial, there is a boat dock. What happens is the lot -- there's a notch into it where the boat pulls in. You will see that that roof and basically the existing roofline for the home, there's not much of a view corridor along that portion of the home. So the 2-foot request that Mr. Kastan is requesting, in my opinion, there is no impact to the view because, you know, the boat -- the boathouse can be reconstructed on the property. In addition, as I said -- and I'm not pointing blame at anybody for the fact that a mistake happened. I mean, that happened. It went through the review process. It was not caught. It was not caught by us. It was not caught by staff. It was a mistake. And I think the variance -- the specific variance I'm requesting for allows, when there is a mistake, for that mistake to be allowed to continue where the variance is not a detriment to the public health, safety, and welfare, or else you wouldn't have a variance procedure for after-the-fact Page 31 April 4, 2002 variances. You just would say, "Well, it's never granted. Go back to the way it was." And that's where we are. I don't think there's any harm to the public health, safety, and interest by granting of this additional 2 feet in addition to what was already there. Coincidentally, if this was one of those cases where we had -- the error had gone all the way through to the CO, this could have been taken care of administratively because you're allowed a variance up to 2 feet administratively. We're not in that circumstance, but I'm just pointing that out for -- the county commission has recognized, in those kinds of circumstances, that that distance is something that can be rec -- can be remedied by staff. We don't qualify for that, but I just wanted to point that out. We don't believe -- in going through the specific staff analysis of this and in consideration of this particular petition, the staff-- the Land Development Code does not require a land-related hardship. If you look at the specific language, it says, "Will a literal interpretation of the provisions of this Land Development Code work unnecessary and undue hardship on the applicant?" And then it goes out (sic) to point out that there will be financial consequences to my client if-- or to somebody, because I know my client will be looking to that somebody to -- to make up for it. They recognize there will be a financial hardship. There are supports. There are pilings below the ground supporting the home, and there will be financial consequences if the variance is not granted. I don't believe -- I just wanted to point out one of the statements that says, "However, a financial hardship is not typically a justifiable reason to grant a variance." As you all know, these criteria are just that; they are criteria. It's not a pass-fail test. You look at the -- you look at these criteria as a whole, and then you make a judgment as to whether or not a variance should be written -- should be granted. But I think we meet that criteria because there is a financial hardship, and Page 32 April 4, 2002 it doesn't have to occur, because there is no harm to the public health, safety, and welfare. Also, on Criteria E, the petition -- staff has basically found that my client will be getting some kind of a special consideration because the variance is granted. Well, as I've said earlier, the variance criteria are there for a reason. Just because you're granted a variance doesn't mean you're given any special consideration. Every property owner has the right to come to the Planning Commission and the Board of County Commissioners and request a variance and have each variance application analyzed on its own factual conditions. So I don't think we're getting any special privilege. We are asking for a variance, which we are entitled to do under the code. The next criteria is No. F, and it says, (as read): "Will the granting of the variance be in harmony with the general intent and purpose of the Land Development Code and not be injurious to the neighborhood or otherwise detrimental to the public welfare?" Well, the general intent of the Land Development Code is to make sure that homes are properly set back from each other and a whole lot of other issues. We're looking at the general intent. We're not looking at the specific criteria because, again, you would not have a variance process if the specific criteria could not be varied from. So we would argue that under the circumstances of this particular home, again, we meet the -- the spirit and intent of the Land Development Code, and we are not injurious to the public health, safety, and welfare. And I would just like to ask Fred if, in his opinion, the granting of this variance is in any way going to harm the public welfare. MR. REISCHL: Not in my analysis. I -- as I stated, I did receive comments from the neighbor to the north after I did my analysis, but my analysis determined that even extending public welfare to view, it did infringe on that. Page 33 April 4, 2002 COMMISSIONER RICHARDSON: Question, Fred. You said you recommended denial. You're now not supporting that? MR. REISCHL: Excuse me? COMMISSIONER RICHARDSON: It's your recommendation that we forward this with a recommendation of denial, and I'm hearing you say that there's no impact on health, safety, or welfare by granting this petition that Rich is talking about? MR. REISCHL: Well, he's quoting from the purpose and intent portion of it, and I was using my analysis from the eight criteria. So we're talking about different portions. MR. YOVANOVICH: Could I try to answer that? COMMISSIONER RICHARDSON: I'm hearing two different things. MR. YOVANOVICH: Can I try to clarify that please? Mr. Richardson, there are -- as I was saying, under Section 2.7.5.1, the purpose and intent of the variances, there are three mechanisms or alternatives for granting a variance. COMMISSIONER RICHARDSON: I was listening very carefully. MR. YOVANOVICH: The first one I read to you. COMMISSIONER RICHARDSON: It was public interest. MR. YOVANOVICH: Right. The second one -- it says "or," so it can be -- I can apply it under the "or" criteria, which would be the criteria of an undue hardship. I think-- COMMISSIONER RICHARDSON: So "or" would exclude any public interest considerations by-- MR. YOVANOVICH: It would be -- if I can show you under No. 1 that there are no public interest issues, then I think I'm entitled to a variance. Then there's the "or," which is the undue hardship. Staff analyzed this petition, in my opinion, under the second alternative of the variance, which was the undue hardship. I don't Page 34 April 4, 2002 think they analyzed it under the one I am arguing, Mr. Richardson. So I think that's where Mr. Reischl is coming from. He's saying "I can't find an undue hardship"; therefore, he's recommending denial. I think staff should have and could have looked under (sic) it under the first criteria, which I'm arguing. So I'm trying to show that there is no harm to the public welfare. COMMISSIONER RICHARDSON: Except in the staff report that we heard verbally given us, he's talked about public interest issues and cited a letter that -- and communications received that, to my mind, supported there being a public interest concern. I'm not saying how we're going to vote on that, but that was -- and I take that as a part of the reason why you recommended denial. Now, if you're changing that, that's okay too. I'd just like to know. MR. REISCHL: No. I'm not changing my recommendation. MR. BELLOWS: For the record, Ray Bellows, chief planner. These variance requests are typically reviewed by staff through the criteria contained in the LDC concerning variances, and we look at all the criteria comprehensively. And just because one criteria may be -- create a problem where staff is recommending denial, it may still -- taken at the totality of all the criteria, we still may recommend an approval. In this case my discussion with Fred is that there are certain criteria that weighed more heavily, and that's the reason that we're recommending denial. There still may be no public welfare issues, would not affect health, safety, and welfare of the general public, but the other criteria weighed heavily enough for him to recommend denial. CHAIRMAN ABERNATHY: What Mr. Yovanovich has done is set up a straw man and knock him over. So bear that in mind. That's -- it's an accepted tactic. You pick the -- the criteria that affects you the least and emphasize that it is inapplicable in the case, so we can move on from there. Page 3 5 April 4, 2002 MR. YOVANOVICH: Mr. Abemathy, I was only pointing out those criteria where staff disagreed with me. On the other criteria, staff agreed that we met the criteria. So what I was trying to go through was just focusing on the three that they didn't. CHAIRMAN ABERNATHY: I understand that. MR. YOVANOVICH: So the letters from the neighbors, you were handed out one letter from -- today from the neighbor to the -- I guess it's the south direction, which is, I believe, this neighbor. You can't see with my -- this is us. Can you see? COMMISSIONER RICHARDSON: Your other right. MR. YOVANOVICH: My other right. Help me. This neighbor right here provided a letter of no objection. The letter I received from Mr. Reischl yesterday was from the woman to the north, who -- in her letter, the letter talked about flooding. There was no mention of a view issue in the letter. I don't believe that there is any impact to -- the construction of these additional 48 square feet to -- to storm events in the area. And, again, I don't-- I don't believe there's an impact to the view when you look at what was there before with the boathouse and where the house is currently located. I -- we are asking for, the minimal request, to let things go as they are. It is a 48 -- it is a 48-square-foot request for the new portion of the home and, I believe, a 25-square-foot request for the old portion of the home that was built in 1974, for a total of 73 square feet. CHAIRMAN ABERNATHY: That's not the minimal. That's the maximum, isn't it? MR. YOVANOVICH: Well, it's the minimum to let everything go forward. We could have asked for a bigger variance to build a bigger home, and we didn't. CHAIRMAN ABERNATHY: Well, after the fact you would have a slim and none chance of that, I would think. Page 36 April 4, 2002 COMMISSIONER RICHARDSON: Plus you have the overhang that you've not addressed. MR. YOVANOVICH: I'm going to get to that next. The overhang, which is the balcony, is -- I understood it to be 9 feet. In actuality it's 7 feet, and then in reading the staff report, I understood that 5 feet was permitted and was prepared -- and I am prepared to bring it back to the 5 feet at this point. So, in fact, we're asking for a 2-foot variance from the balcony requirement, because the balcony is measured from wherever the home is constructed. So if-- if the variance I'm requesting is granted for the additional 2 feet, my client would be permitted to build another 3 feet anyway. What he's asking for is 5 feet. So it's difficult to explain that in the staff report, but that's what's being requested. I hope that this Planning Commission could take into consideration the unusual circumstances involved in this property, that this is, you know, an honest mistake. It was -- it was not intentional. It would be economic waste, in my opinion, to require the destruction of what's already been constructed, under the circumstances. I don't believe there's any harm to the public health, safety, and welfare involved with this request. I think we meet the criteria in to -- if you take them in totality for the granting of this request. And we hope that -- if you have any questions of the contractor, he's here. We hope that we can get your support for a recommendation of approval to the Board of County Commissioners. COMMISSIONER RICHARDSON: Mr. Chairman. CHAIRMAN ABERNATHY: Go ahead. COMMISSIONER RICHARDSON: Mr. Yovanovich, the boathouse, I'm curious. That -- this picture shows it there. Fred said when he was out there it wasn't there -- is that correct, Fred? And it's in the process of being rebuilt. What kind of-- where does staff stand on -- you know, it looks like that's a big incursion on the view Page 37 April 4, 2002 to begin with. How do we let that kind of thing happen if it's -- if we're having concern about the house going out a little bit? It seems to me I would, just practically speaking, have a lot of concern about a big chunk of something setting there. MR. REISCHL: When I was out there, there was no boathouse. If there is going to be a boathouse, a boathouse requires a boat dock extension. COMMISSIONER RICHARDSON: So that would come back before us, then, before that was submitted? MR. REISCHL: As far as I know. I -- I have heard this. I have not visually seen a roof going on the dock. When I was out there, there was no roof on the dock. CHAIRMAN ABERNATHY: So we might be in another after- the-fact variance situation? MR. YOVANOVICH: No, Mr. Abemathy. We're going through the permitting process right now to put -- to replace the -- CHAIRMAN ABERNATHY: The roof?. MR. YOVANOVICH: -- existing -- COMMISSIONER RICHARDSON: Now, let me ask -- MR. YOVANOVICH: The contractor's here, if you want to -- COMMISSIONER RICHARDSON: Well, but this is a staff kind of question. If this was a preexisting -- and it was, apparently, from the picture there -- can they come back and just rebuild exactly the same thing without any variances required, any application considerations by us? MR. BELLOWS: Yeah. For the record, Ray Bellows. If the structure was a legal conforming structure, it could be rebuilt. COMMISSIONER RICHARDSON: Well, we've already concluded the whole thing was not legal. Page 38 April 4, 2002 MR. BELLOWS: No. The boathouse. COMMISSIONER RICHARDSON: No. But the house was not legal to begin with. MR. BELLOWS: Yeah. The house is a different issue, though. COMMISSIONER RICHARDSON: Well, I'm looking at the structures on this property. MR. BELLOWS: Yes. COMMISSIONER RICHARDSON: And you're saying that structure could be built and within the code -- MR. BELLOWS: The boathouse. COMMISSIONER RICHARDSON: now. MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: -- exactly the way it is So that's going to block the view more than the house already, then. This is a puzzle. COMMISSIONER STRAIN: Richard, first of all, I want to keep your memory set. In the future times you come before the board and you talk about things and I bring up purpose and intent, you've opened the door for me, so thank you. But I did want to find out if you had brought the architect with you or you have information from -- who was the architect involved in this, and do they know our codes? Do they know what they were dealing with? MR. YOVANOVICH: And thank you for making sure you hold my feet to the fire on the purpose and intent. COMMISSIONER STRAIN: I will do that. MR. YOVANOVICH: It'll be reciprocal. I'm joking. The architect is from Louisville. COMMISSIONER STRAIN: From where? MR. YOVANOVICH: Louisville, Kentucky. The architect did not know our rules. That doesn't excuse that, but I'm just telling you it was not a local architect who designed the addition. Page 39 April 4, 2002 COMMISSIONER STRAIN: Do you know the height of this structure overall? You'll have to identify yourself. MR. NOVELLO: Dominic Novello, building contractor for this project. COMMISSIONER STRAIN: I needed an overall height to the peak of the roof. Do you know what that is? MR. NOVELLO: I believe we're -- the existing tie beam was at 8. We added 2 to that. That's 10. So 10 feet for the second floor and 6 feet to the peak of the roof, for a total of 26 feet. COMMISSIONER STRAIN: Okay. Thank you. Richard, you had said you were going to move the balcony back from 7 to 5. Now, to do that, that's a structural change. Is this balcony a structure that can be changed that easily? Because if it can, is there a reason why it couldn't go back to 3 so you wouldn't need a variance for the other 2 feet on that balcony? MR. YOVANOVICH: It's going to be a structural change regardless. COMMISSIONER STRAIN: Okay. Well, if you can cut off 2 feet, could you cut off 4 feet? MR. YOVANOVICH: The -- the reason for the additional 2 feet was -- quite candidly, is the client wanted to be able to sit out on the balcony. They needed more than 3 feet. They wanted to be able to -- there's two of them -- eat some meals and put a table and chairs out there, and they can't do that within 3 feet, so that's the -- that's the reason for the request. In addition, there is a -- there's -- they want to put in a spiral staircase to get up to the second floor, and that requires, as I understand it, 4 foot to make that happen. So the 3 foot, it just makes sense to cover the staircase. So that's the purpose of the request. COMMISSIONER STRAIN: Okay. Thank you. Page 40 April 4, 2002 CHAIRMAN ABERNATHY: Rich, is the substance of what you've said today that Dr. Kastan, who bought this property at some time in the past, did not have it surveyed, did not know that he had a 2-foot -- MR. YOVANOVICH: No. It was-- CHAIRMAN ABERNATHY:-- intrusion? MR. YOVANOVICH: It was surveyed, and the people who hired -- he hired did not point out to him the existing encumbrance, okay, the existing intrusion. There was a survey. So what I'm telling you is, my client-- is he didn't know. He had the people representing him. The survey was there. It was done. The person who represented him didn't point out the encroachment. CHAIRMAN ABERNATHY: It's a funny thing. Everybody who is here is blameless, and yet there are all these people who are blameworthy who aren't within our reach. MR. YOVANOVICH: Well, but they are within someone's reach. CHAIRMAN ABERNATHY: I'm just going to say, if we deny all of this, who are you going to sue? MR. YOVANOVICH: Well, I'd just as soon -- I really don't want to name names, okay, but there will be -- there's going to -- it's a significant issue. That's the original survey provided. That was reviewed by those representatives through our client. And, in fact, there's title insurance. I mean, it was -- it was a mistake, big mistake, and we're trying to do the minimum necessary to address that mistake and keep -- you know, not run up the -- the bills, really, for anybody when it's not necessary. Someone will be held accountable for all of these expenditures we're going through. CHAIRMAN ABERNATHY: Well, wait a minute. Title insurance applies to the line of succession to the property. Does it apply to internal? Page 41 April 4, 2002 MR. YOVANOVICH: It also -- there's a survey exception that can be deleted, meaning that there are no encroachments, and that was deleted in the policy that I have reviewed. CHAIRMAN ABERNATHY: Do you know why -- in addition to the 2 feet that he inherited when he bought the house, why he needed an extra 2 feet? Why are we talking about this? MR. YOVANOVICH: We're -- we're talking about this because it was an older home. The bedrooms were smaller. And, candidly, he wanted to extend the bedroom by 2 feet. CHAIRMAN ABERNATHY: Just 2 feet? MR. YOVANOVICH: Just 2 feet. That's what he wanted as far as the extension to the -- to the bedroom. I believe it is the bedroom. It's the bedroom. And it was -- it was -- you know, everybody thought we met the 25-foot requirement. Clearly we don't. CHAIRMAN ABERNATHY: Well, it would seem like if he wants to extend the bedrooms, he would start with, well, how far can we extend them? And that would have met the issue head-on. MR. YOVANOVICH: And, again, I'm not -- you're right, Mr. Abernathy. The permits, along with the survey, were submitted for review. We missed it. "We," meaning the representatives for my client and the county, missed it. CHAIRMAN ABERNATHY: Were you the representative at that time? MR. YOVANOVICH: No. I only -- I only get called in when the problem's discovered. CHAIRMAN ABERNATHY: Then we have another blameless person in the room. MR. YOVANOVICH: I'm not saying there aren't people to blame. I'm just saying that this is a mistake, and mistakes happen. We -- everyone in this room has made a mistake at one time. The question is, what do you do when the mistake occurs? Page 42 April 4, 2002 COMMISSIONER RICHARDSON: Don't go there, Rich. CHAIRMAN ABERNATHY: What is the -- MR. YOVANOVICH: You've never made a mistake? COMMISSIONER RICHARDSON: Don't go there. CHAIRMAN ABERNATHY: What is the minimum porch that -- it's going to have a railing around it, I assume? MR. YOVANOVICH: Yes. CHAIRMAN ABERNATHY: But not a roof. MR. YOVANOVICH: No. CHAIRMAN ABERNATHY: What's the minimum that the good doctor thinks he needs to do what he wants to do up there? MR. YOVANOVICH: Well, the good doctor would like 5 feet. CHAIRMAN ABERNATHY: What's the minimum he needs? MR. YOVANOVICH: Well, the codes says 3. I told you -- CHAIRMAN ABERNATHY: He can do it with 3? MR. YOVANOVICH: Well, I mean -- well, he could -- yeah. CHAIRMAN ABERNATHY: Three intrusion from what point? MR. YOVANOVICH: From-- well, hopefully from the new wall. CHAIRMAN ABERNATHY: From the new wall. So that makes it-- COMMISSIONER RICHARDSON: Which is 2 foot over. CHAIRMAN ABERNATHY: Which is 2 feet but cuts into his MR. YOVANOVICH: Cuts into-- CHAIRMAN ABERNATHY: -- footage. MR. YOVANOVICH: It sure does. It cuts into the usable -- what he envisions as the usable space, which is the balcony as well as the inside of the home. CHAIRMAN ABERNATHY: Three feet is not very much -- COMMISSIONER STRAIN: Unlike some of the other-- Page 43 April 4, 2002 CHAIRMAN ABERNATHY: -- for a porch. MR. REISCHL: If I can clarify what I hope you were just talking about, whatever the variance is granted for, if it's granted for the original wall or the proposed wall, you would measure the 3 feet from whatever that variance was. If a variance is granted, then you get the accessory uses, which include 3 feet beyond that. CHAIRMAN ABERNATHY: Okay. COMMISSIONER STRAIN: First of all, Richard, did you say you have an original survey there somewhere? MR. YOVANOVICH: I just put that -- where did it go? COMMISSIONER STRAIN: I just was curious. What does the rear setback show on that original survey? MR. YOVANOVICH: Well, actually the -- it's not -- the dimensions are not called for on the survey, I mean as far as saying what each -- what each side is. That comer was not marked on the survey, okay, unlike -- when we went in originally and it was reviewed by staff, the comer up here where my finger is is marked, and staff said, "You need to get an administrative variance." Simply what happened is nobody put a scale to it to measure the -- measure the point. But where it was clearly marked, staff said, "You need to get the administrative variance," and we did. COMMISSIONER STRAIN: Now -- MR. YOVANOVICH: That's what I'm trying to point out. COMMISSIONER STRAIN: This house, with the changes that you're trying to do to it, would fit on the lot without a variance if it was being built new, from what I can calculate. MR. YOVANOVICH: I would move it-- COMMISSIONER STRAIN: You'd just move it -- MR. YOVANOVICH: -- forward. COMMISSIONER STRAIN: Down -- move it forward and over to the other side a little bit. Page 44 April 4, 2002 MR. YOVANOVICH: Yeah. the lot. COMMISSIONER STRAIN: CHAIRMAN ABERNATHY: Richardson. There's plenty of room to fit it on Okay. Thank you. Any other questions? Yes, Mr. COMMISSIONER RICHARDSON: I'd like to direct my comments to Mr. Schmitt. I'm really struck by what we've heard here today to the extent that if this had not been discovered midstream, where we are now, even though the errors that led to it, including on staffs side and including on the applicant's side -- if this had gone on just a little bit further and we hadn't -- somebody hadn't done some diligence, we'd end up with a CO request, and you administratively would have granted this, or could. MR. SCHMITT: It-- Joe Schmitt, administrator, community development and environmental services, for the record. If they came in with a CO -- and at that time it would probably -- it would have been determined that it -- in fact, because it-- it already had gone through all the processes -- what happens when an applicant comes in, it goes to the planning technician who's at the front desk. And that planning technician reviews -- does not measure the drawing, does not pull out an architect's ruler to validate. It goes by what's on the paper, and the paper showed that it was within the proper setback. As a result, it was approved, at least the -- from -- the building permit was approved from that process. So -- so -- I'm not sure at what point we discovered the error. But, yes, if it was not discovered, a CO would have been issued, and -- and the error would have continued to perpetuate as the 2-foot error has for the last, what, 20 years? MR. REISCHL: Twenty-five. Page 45 April 4, 2002 MR. SCHMITT: Twenty-five years. So, I mean, I can go through the statistics of how many -- I'm currently preparing paperwork now to go back to the board to ask for additional -- additional folks to work at the front desk because of the -- the increase in workload. I could pull out a paper I have here in my packet if you want to go through the numbers, but the fact of the matter is, it's the significant increase in workload, and it's the processes of my planning technicians who review the initial applicants. And it's -- it's a review. It's just simply to validate that the -- all the setbacks are within the standards, and then the building permit is issued. You know, we're working somewhere around 35,000 permits -- let me -- I don't have it with me. COMMISSIONER RICHARDSON: I don't necessarily need -- MR. SCHMITT: You don't need the numbers, but that -- I mean, that's really what would happen. MR. REISCHL: To answer your question about the discovery, it was discovered by a building inspector. COMMISSIONER RICHARDSON: But if he hadn't quite done his job, you guys still would have approved it. That's -- you know, that's the part that seems inconsistent to what we're doing. MR. BELLOWS: And ifI may -- MR. SCHMITT: But, again, I -- this gets back with other-- as we talked about two weeks ago, there's -- and Rich brought up the same, there is culpability all around because the architect, the AE firm, the land surveyor who originally put in the survey, I mean, they're licensed. Those folks are professional engineers and professional land surveyors, and they have some responsibility. It's really not the county. Those -- those responsibilities belong at -- both on the shoulders of the AE firm and the professional land surveyor or the -- or at least the professional land surveyor who certified the Page 46 April 4, 2002 survey. So all we do from a county perspective is go out and validate through spot survey. MR. BELLOWS: And ifI may, that's -- the reason the county required the spot survey up front is to catch these things before they get too far along. And the review is only as good as the information we get from the petitioner. In this case it's obvious that the dimension wasn't shown on the one comer, which would have alerted staff. There is no scaling that they do when they review these things at the front counter upon submission. We have done a tremendous job in the past years catching these things. As a result, you're seeing a lot of variance requests before you. Sometimes they're caught a little late in the process, but we are catching them. COMMISSIONER RICHARDSON: But what I -- MR. BELLOWS: They're not going 25 years before being noticed. COMMISSIONER RICHARDSON: From what I understand, staffs continuing current position is that they recommend denial, at least on a portion of this variance, and acceptance of the other portion. MR. BELLOWS: That's correct. And if you look at the staff report, it mentions under the analysis, the introductory paragraph there, that the criteria are general guidelines to be used to assist in -- the commission in making a determination. Staff looked at the criteria as a whole, as I previously mentioned, and -- and felt that the overall weight of the criteria recommended denial for the addition, but recommended approval of the existing dwelling wall location. COMMISSIONER RICHARDSON: And nothing you've heard in this session so far has changed your mind on that? MR. BELLOWS: Well, it's up to the Planning Commission to make that-- Page 47 April 4, 2002 COMMISSIONER RICHARDSON: position. MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: hear that. I mean changed staffs Okay. I just wanted to MR. YOVANOVICH: I do need to ask staff one more question, and the question is this: Did staff even look at the purpose and intent section when applying the criteria? MR. REISCHL: No. I looked at the criteria and based my analysis on the criteria in the staff report. MR. YOVANOVICH: So I -- I think a critical element of the application of the criteria is to also consider it in light of the purpose and intent language. And Mr. Reischl has testified that there is no harm to the public health, safety, and welfare by the granting of this variance. And I don't have any -- any further testimony to offer. If you have any more questions for the contractor, he's here. Obviously I'd like an opportunity to respond to any public comment. CHAIRMAN ABERNATHY: We've gone back and forth on this question of undue hardship, which I think translates to dollars. Why don't we hear from the contractor what it would cost to go back and take down the 2 feet and the porch, since he is blameless in this whole matter. MR. NOVELLO: Well, we -- the county has allowed us to -- the building department has allowed us to go on with construction, but leaving the rear portion of the wall off. So we've just got temporary supports there now. But Dr. Kastan did hire me to put pilings in and to pour a grade beam and the slab on that rear portion. CHAIRMAN ABERNATHY: Okay. So if you had to take the aboveground portion down and restore the wall where it was before you started and that would impact on that porch, what would that cost? Just ballpark. Ten thousand? Fifty thousand? Page 48 April 4, 2002 MR. NOVELLO: Ten thousand. CHAIRMAN ABERNATHY: Ten thousand? MR. NOVELLO: Probably, yes, sir. CHAIRMAN ABERNATHY: Okay. MR. NOVELLO: Plus the -- MR. YOVANOVICH: Plus the additional costs in the underground work that -- MR. NOVELLO: Plus the ground work that we've already laid, which was close to 15,000. COMMISSIONER RICHARDSON: cost. But that's already sunk CHAIRMAN ABERNATHY: That's already in. MR. YOVANOVICH: But it would have been -- it would have been -- it wouldn't have been incurred but for the additional 2 feet. That's all I'm trying to point out. CHAIRMAN ABERNATHY: Okay. Anything else from the petitioner? All right. Let's hear from the public. Before we hear from the public, I want to remind -- I want to remind you prospective speakers that our rules call for you to limit your comments to five minutes if at all possible, so try to hew to that line. MR. BELLOWS: We have six public speakers. The first is Frank Halas, and the next speaker is Keith Sowers. MR. HALAS: Good morning, Commissioners. For the record, my name is Frank Halas. I'm also president of the Vanderbilt Beach Property Owners Association. I'm going to try to hold this to five minutes. I think it might be a little difficult. I have some pictures that I took of the project that's in question, and these were taken as of yesterday. If I can use the overhead here, it also brings into effect the boathouse that was also up. Page 49 April 4, 2002 As you can see, this is the -- the thing in question, and the petitioner is saying -- you can see where the new wall is. He already brought that to your attention. He also shows you the balcony, and I think they said on the -- the setback -- or the petitioner, on the property, the sign said they only needed a 4 1/2-foot setback to start with. That's what was written on the -- on the sign board out in the front. Well, then as I look at the property here, I see the extension of this balcony here, and then you can see the fairly newly constructed boathouse that's going to also impede the view of the property to the north. Here's another picture of the boathouse as it was as of yesterday afternoon, and you can see it comes -- indents farther -- even farther from where the original sea wall is. The LDC code in the Vanderbilt Beach area states that it's a 25- foot setback required for the actual residence from the sea wall. Now, we've heard testimony from the other side saying that there was an error made by surveying and -- and going on trying to blame everybody. But it seems to me that every contractor ought to have a rule, and you measure right from the sea wall and all portions of the house, and there you got the problem. I firmly believe that this was intentionally done with the idea that it is very easy to request an after-the-fact variance approval. It is my understanding that both the builder and the homeowner were aware that the house was out of compliance before the rear of the building was completed, but decided to go forward to seek a variance later in the interest of time and money. The county, therefore, fortunately stopped the project, eventually reversing themselves as far as the front of the house was concerned. Work on the back of the residence is still halted pending your decision. I firmly believe that the building codes in Vanderbilt Beach should be strictly enforced and that all after-the-fact variances should Page 50 April 4, 2002 be highly scrutinized. It is hard to believe that the building industry doesn't know anything about setback requirements or fails to use, as I pointed out earlier, a 50-foot tape measure to make sure that measurements of the structure are being -- are in compliance in-- in accordance to the front, rear, and side setbacks as specified in the LDC. Upon viewing the property, I firmly believe that the residence to the left of the structure will have its view greatly restricted. And how I say that is in addition to what they're saying they need for a variance because the structure was out of compliance to start with, if that's 2 feet and then you add the additional feet, which gives them almost 5 feet, and then you take this up 20-some feet, that view is greatly restricted. Unfortunately, I have the intimate knowledge of the lack of precedence for issuing this after-the-fact variance of this substance. We built a home in 1998 on Flamingo Avenue. And as we were building this, the -- there was an error by the surveyor which entailed 5 feet. We were 5 feet encroaching into the front of the -- of the home. The builder looked at it. I believe he called at that time the people on the Planning Commission, and they said no way can we change that variance -- make a variance request of 5 feet. What was done by the builder is he had to tear the whole house down and move the pilings back 5 feet, so he had to tear everything down, start all over. It cost the builder $75,000, but he gave me the product that I wanted. So, therefore, we are all concerned with oversized structures being proposed on some of the -- approved in our area. The house in question has two major problems and does not comply with the present LDC codes, and we do not believe that an after-the-fact variance of this magnitude is forthcoming. Thank you very much for your time. Page 51 April 4, 2002 COMMISSIONER RICHARDSON: Mr. Halas, question. CHAIRMAN ABERNATHY: Question? MR. HALAS: Yes. COMMISSIONER RICHARDSON: You're speaking -- I want -- put that picture back if you don't mind, because now we're seeing where that boathouse is -- that boathouse is going to come up. What we've heard -- and I want to make sure that you understand, as -- as we do -- that that boathouse apparently can be put back in without any -- just a building permit. MR. HALAS: I don't -- I'm not sure about that. I'm not in tune to the building codes, but I would hope that that boathouse doesn't go in. As you can see, it's going to greatly restrict the -- more so the view of this property on this site. COMMISSIONER RICHARDSON: Mr. Halas, I'm in total agreement with you, and I tried to bring that up before. It seems to me that's more of an impediment to view than -- than the extension that they're asking about. But on my inquiry to staff, I'm told that they can rebuild that, put the roof on it, and whatever block of view that has, it has. If I'm still -- if I'm still correct on that, I want to make sure the -- that Mr. Halas understands that as well. MR. BELLOWS: Yes. They have a building permit, and they're building and-- MR. HALAS: The boathouse. COMMISSIONER RICHARDSON: There's no variances required for that at all. MR. BELLOWS: Not that we know of right now. COMMISSIONER RICHARDSON: Well, this would be a good time to find out. MR. BELLOWS: Normally a building permit comes in for a boathouse. They have to meet the setbacks in the code for Page 52 April 4, 2002 boathouses, 7 1/2 feet or 15 feet, depending on the width of the lot. I assume that's been checked and the building permit issued. COMMISSIONER RICHARDSON: This -- this one is particularly egregious in terms of view because it's an indentation, you know. It's not on the sea wall. That's all the way -- back end of the property. But even with that you're satisfied that -- MR. BELLOWS: Based on the information I have at -- on hand right now, it's consistent, but we'll double-check that right now. COMMISSIONER STRAIN: Before you leave, sir-- MR. HALAS: Yes. COMMISSIONER STRAIN: -- when you said you'd measure from the sea wall, what side of the sea wall would you measure from? MR. HALAS: I measure it from the comer of the sea wall. What side of the sea wall? COMMISSIONER STRAIN: It's got two comers, outside and inside. MR. HALAS: I measure it from the centerline. COMMISSIONER STRAIN: The centerline. Okay. MR. HALAS: Centerline of the sea wall. COMMISSIONER RICHARDSON: And is that a 50-foot ruler? It looks like a 25-foot ruler. MR. HALAS: It's a 25-foot rule, but it -- I found that they had a problem there. COMMISSIONER RICHARDSON: You -- you suggested that you had a 50-foot ruler. I just wanted to clarify that for the record. MR. HALAS: Well, I -- COMMISSIONER WOLFLEY: We all make mistakes. COMMISSIONER RICHARDSON: Thank you. MR. BELLOWS: Next speaker, Keith Sowers. MR. SOWERS: I'm Keith Sowers. I live at 166 Conners Avenue, which is three doors down from this. I own Stiles-Sowers Page 53 April 4, 2002 Construction. I've been building in Vanderbilt. I've owned 31 lots on the water in Vanderbilt. Over the last few years, I dredged the canal on Flamingo that made the lots available on the north side of Flamingo Avenue, so I'm very familiar with the area. In the last three years, I've done three remodelings, two of them right on Conners Avenue, and this project has just overwhelmed me with things that I have never in my 30 years in Vanderbilt ever been able to do. First of all, there's a -- one thing you have to do in our area, as you all know, is FEMA. It's called the 50 percent rule. We all know there's other ways to get around that with appraisals versus appraisals. We've all played the games. We've always fudged that. As you can see, this house is basically just another house on top of the existing house. I definitely think we have a 50 percent rule problem here, but you know what? I really don't concern myself so much with that because if it's pretty and the neighbors agree with it, we don't mind it. But then to turn around and even after you've -- I believe the owner has fudged dramatically on those numbers. And I know myself, applying three doors down, I remodeled last December and have my CO. And I was wanting to get 2 more feet because I'd like to have a closet in that back bedroom, which I couldn't get. I was not -- told I can't even consider it because you're on the water and because of people's views. So I didn't even proceed with mine. I also asked to do a second story, and FEMA turned me down on doing a second story on my home. So this house has been a mystery to me from day one. The other items on this house is how you can come in and ask for a variance after you've already gone up the second floor; and then, also, why this wasn't caught. I'm required on every house I've ever built in my lifetime to have a ten-day spot survey. The minute I Page 54 April 4, 2002 break ground and do anything on the property, I have to walk in with a ten-day spot survey or I can't get my next inspection. So this has kind of been interesting in my own back yard. Mrs. Carpenter, that sets in the little house that's back in the comer -- I mean, you can see they've got the boathouse going in, which is obviously bigger than the original boathouse was. Also, the house is coming out 2 feet, which was wrong to begin with, which we've all lived with. Now they want another 3 feet. They've got a balcony. Now we're hearing about a spiral staircase that they want to add outside here, so they want their 5 feet. I mean, to me, this is totally -- upsets me, because I've tried to do this, every homeowner I've ever built for, including my own spec houses. And, as you well know, these houses are marketing, with the southern view that we all have, somewhere between 5 and $600 a square foot. So every time he's adding 2 more feet on, believe me, there's other reasons in his mind of what he's trying to do with a house that he should have tore down, started new, and he could have done everything he's doing. But he's going with a FEMA project, which is the 50 percent rule, and how he can do everything he's doing and then still come in and want more and grant him a variance over and above going on and beyond the 50 percent rule is just amazing to me. That's all I have to say, and I hope you will reject this totally. Thank you. CHAIRMAN ABERNATHY: Thank you. COMMISSIONER RICHARDSON: Mr. Chairman. CHAIRMAN ABERNATHY: Just a minute, sir. COMMISSIONER RICHARDSON: When you say reject it totally, you're against all of the variances they're requesting? I'm talking about the -- MR. SOWERS: The existing structure, I think we've all lived with it and looked with (sic) it, so the existing structure I have no Page 55 April 4, 2002 problem with. But the existing structure, remember, was one story. Now we're taking that existing structure and going to double the heighth on an existing structure that was in -- I have a problem with that. I really -- I mean, I'd like to say I'd like to go along with it. We've all had -- I've had a variance on a mistake on a house that -- we did a subdivision called Boca Palms here that had 147 houses, and we did miss one, and we went in for an 8-inch variance. I understand those things, but this is such a belligerent -- COMMISSIONER RICHARDSON: Well, just -- I want to just understand your viewpoint here. MR. SOWERS: I guess I would have to say I reject it, because if he was just staying with the first floor and they wanted the 2 foot granted, I think that's fine. But now they want to go on up the 2 more feet, so they're asking you for the total addition of the 2 feet downstairs and the 2 feet upstairs on the original structure. COMMISSIONER RICHARDSON: And if we took it back to the original slab and they went the second story -- MR. SOWERS: Well, if they went up the first floor and then do their balcony back to the 2 foot and make the second story comply with the setback, I have no problem with that at all. COMMISSIONER RICHARDSON: Thank you. CHAIRMAN ABERNATHY: Next? Ray, I think we need another speaker. MR. BELLOWS: MS. STUDENT: John Owler. We usually announce who they're followed by, too, so people can-- MR. BELLOWS: And the next speaker would be George Stoddart, if he can come up and stand behind Mr. Owler. MR. OWLER: Hi. I'm John Owler. I live on 232 Conners Avenue, and I'm basically here to support my neighbor, Ms. Martin. She's very concerned about -- I'm sorry. Ms. Carpenter. She's very Page 56 April 4, 2002 concerned, obviously, living next door. To me, I live further down, so it's not a -- a big impediment on me, but I could see what she's upset about, you know, with the possibility of no back yard and water all coming into her yard. And they're building that boat dock (sic) with the -- what do you call the -- the porch up top because they have no view on the bottom with that big boat dock and the longer dock and everything. That's why they need that porch up there, so they can get a view, the people building the house there. I was thinking of going to a second story myself. I have a single-family home, and I was -- this is the first time I've ever come to such a meeting. I've only been a resident a little over a year now, so this is very interesting listening to all this here. I didn't realize what's -- what's going on here. I didn't think it was as bad as what I'm hearing now. I mean, somebody that spends over a million dollars on a house, I find it just hard to believe that he can't know what the setbacks are or anything else. I mean, what's going on here? So I'm -- I -- I understand the existing -- where the existing wall is there, that that was wrong 25 years ago, and I think that's -- that's okay because that's already there. I think you have to live with that. I mean, that's unfortunate, but that's -- that would be acceptable to me since it's there. I didn't know that was the case, and I just want to give my viewpoint to the committee here on that. But it's just unfortunate. I just can't see all these things going on and people not knowing or taking responsibility. Like you said, nobody of responsibility's in this room. It's just an unfortunate situation. And I just wanted to state my comments and support my -- my neighbor. CHAIRMAN ABERNATHY: Thank you for coming. MR. BELLOWS: George Stoddart, and the next speaker, Jean Carpenter. Page 57 April 4, 2002 MR. STODDART: George Stoddart, 211 Conners Avenue. I am a retired contractor of over 35 years. I've built many homes, many additions, not in the state of Florida. I have yet to start a job that I personally haven't checked out that I am within the guidelines of any project that I'm involved in. Absolutely never heard of anything like that in my life. This project from day one has been skeptical to the effect that figures have been forged to re -- to comply with the FEMA regulations. This man has lied on his applications. There's no way possible that you can say this man is not spending over $150,000 on that addition and work to be done with that house. That's your problem, number one. FEMA's not even involved in this project apparently, or they would have caught it before your committees would have caught it. The fact of the boathouse, the boathouse is not a boathouse that was there. The boathouse is almost twice the size of the original boathouse. And why that doesn't need to be permitted is another question you should ask your committee. Now, I'm under the understanding when you tear something completely down, such as a boathouse, it does need to be permitted because you have removed the original structure. To come in and maybe put a new roof on an existing structure, that's one thing. If it needs to the point of new pilings and new structure members, that means permit. Permit means constrain to the agreements of what the law is. That doesn't mean tear it down and build anything you want just because it's a boathouse, it's a boathouse. No. This is almost twice the size of the original structure, and that also should be torn down. Now, I'm not as lenient as some other people, possibly, in this area because I have personal knowledge of the area we're talking about, and that is construction. And my belief is the same -- this Page 58 April 4, 2002 should be put back to the original foundation of less than that 2 feet. The 2 feet that's already -- CHAIRMAN ABERNATHY: That's been there for 25 years? MR. STODDART: It's been there for 25 years. The second floor is also in violation. I don't even hear them talking about giving them a variance for that second floor 2 foot. He's talking about he's okay because the original 2 feet on the lower level's been there for 25 years. How about the new 2 foot above that structure? That's also in violation. And I would agree with Keith. If they went back with the second structure -- second-floor structure, go back to a 2-foot point and then come out with a porch, I might go along with that and say, okay. The original wall downstairs has been in violation for 25 years. We've all lived with it out there. But we're trying to construct something that is so far outside the guidelines of this county that it's almost laughable. My vote is -- as a neighbor in that area, along with Mrs. Carpenter, I say deny the whole package. Thank you. CHAIRMAN ABERNATHY: Thank you. Next? MR. REISCHL: Mr. Chairman, we found some more information on the dock permit. I -- I called the office. Ross Gochenaur researched it. There is a permit for a dock, not for a boathouse. The -- when I -- and let me just explain. The reason that we didn't have this as part of any variance is when I went out there, there was nothing there. So I didn't have a question about it until, I believe, Mrs. Carpenter alerted me to it, which was just a couple days ago. So the permit is in there for a dock, not for a boathouse, as of Ross's report to me a few minutes ago. MR. BELLOWS: And ifI may, Commissioner Abernathy, since the original dock was torn down, greater than 50 percent rebuilding of the boathouse would require them to get a boat dock extension and come back before this board. Page 59 April 4, 2002 CHAIRMAN ABERNATHY: Rich-- COMMISSIONER ADELSTEIN: And it's not been done? There has been no request for it? MR. BELLOWS: Fred had mentioned that they've only applied for the boat dock, not the boathouse. COMMISSIONER STRAIN: Isn't the pictures we've seen showing the boathouse being constructed? MR. NOVELLO: What the picture shows, it just shows -- if you could, put that picture back up there. It shows the -- it shows the beams getting -- it shows the beams up. They're squaring up the pilings that are there. The engineering is being prepared as we speak. Because of the new code, American Engineering is doing the engineering for the boathouse roof, which we haven't applied for as of yet. CHAIRMAN ABERNATHY: Give me your name again. I -- it's gotten away from me. MR. NOVELLO: Dominic. Dominic Novello. CHAIRMAN ABERNATHY: Novello. Okay. Thank you. MR. REISCHL: And Fred Reischl again. And Ross did tell me on the phone that this -- maybe not common, but this is done, that when the dock is built, there's no restriction on the height of pilings for the dock, and people can apply for the dock, have the pilings there, and then go forward with the boathouse extension after the pilings are already in. So Ross has seen examples of this in the past. CHAIRMAN ABERNATHY: Okay. COMMISSIONER RICHARDSON: But that -- excuse me. This would be a separate request of your front desk, I guess, to find -- to-- MR. REISCHL: It would come before you as a boat dock extension. Page 60 April 4, 2002 COMMISSIONER RICHARDSON: With the extension being the part that -- the extensions typically are the ones that go out into the water, not up and down. MR. REISCHL: Right. The name of the petition is boat dock extension, but it also applies -- CHAIRMAN ABERNATHY: Boathouses, yes. MR. REISCHL: Right. So I guess technically it's a misnomer. It's called a boat dock extension. It can't go beyond 20 feet. However, it, in this case, would just apply to the roof. MR. SCHMITT: Mr. Chairman, can I make a recommendation that we continue with the public comments, and then we'll follow up? I know this was an important issue that we wanted to clarify. CHAIRMAN ABERNATHY: Right. I was about to tell Mr. Yovanovich to hold his comments until he rebuts all of it. MR. SCHMITT: Thankyou. MR. BELLOWS: The next speaker is Jean Carpenter, and the speaker after that is Chris Carpenter. CHAIRMAN ABERNATHY: Either one. MS. CARPENTER: Hi. I'm Chris Carpenter. CHAIRMAN ABERNATHY: You live at? MS. CARPENTER: I live at 123 Conners Avenue with my mother, Jean Carpenter. CHAIRMAN ABERNATHY: Okay. MS. CARPENTER: And my mother was actually supposed to speak first. She has become ill while this has been going on, and I think it's making her sick, and she is out in the hall. She prepared a statement, and she asked me to read it for her. CHAIRMAN ABERNATHY: That's fine. MS. CARPENTER: And then I have a few other things to say. Okay. This is my mother, Jean Carpenter's, prepared statements. I live next door to the property being discussed. First of all, I do not Page 61 April 4, 2002 understand why he has been allowed to remodel this house and not be in compliance with the 50 percent rule. He wants this extra footage for a downstairs bedroom. I thought living on the ground floor wasn't -- I'm sorry -- I thought living on the ground floor was a no-no, at least that is what I was told when I wanted to remodel my house. The covered boathouse and the elaborate deck and balcony added to the extra footage he is requesting will obstruct the view I have enjoyed for almost 20 years and reduce my property value. I wrote to Mr. Reischl describing the flooding we have in this area during storms and sent pictures taken after Gabrielle. My dock and sea wall, which adjoins Dr. Kastan's property, were completely under water. I was flooded right up to my lanai, which is 27 feet from the normal water level. At one comer of Dr. Kastan's property with the variance he is requesting, the building would be 8 feet from the normal water level. This will increase the flow of water onto my yard, and he will be swimming in his ground-level bedroom in a bad storm. If you've not seen the picture of the flooding and would like to, I have an extra copy with me. As an aside, I would point out that his driveway is approximately a foot into my yard. Obviously I am opposed to granting these variances. Okay. That's my mother's prepared statement. Like I said, she is in the hall. She is not feeling well. I -- I didn't expect to speak like this, so I'm not really sure where to start. I've heard some things here that I have not heard before. I think I'm going to start with a letter that Dr. Kastan gave -- he came to us asking us to sign a letter in favor of the variances, and at the time we didn't know what he was planning. We didn't know about the spiral staircase. We didn't know about the boathouse, which is twice as big as the old one. We didn't know that he was going to put a deck out there that's 20 feet into the water and Page 62 April 4, 2002 40 feet wide across the sea wall. We didn't know any of that. We didn't know that -- the balcony and the -- and the boathouse and now the spiral staircase, we didn't know how bad it was going to be. Yet he wanted us to write a letter approving the variances he requested. And it's vague in here. It doesn't -- he didn't describe what he wanted. It says -- well, can I put that up there so everybody can see it? CHAIRMAN ABERNATHY: You can read it, if you'd like. MS. CARPENTER: Oh, okay. It's to Mr. Reischl. It says, I am a neighbor of Dr. Kastan. It doesn't even say where we're a neighbor. We could be a neighbor in Kentucky. Dr. Kastan has explained to me the proposed construction of his property and the need for a variance to construct the improvements. I am in favor of approval of the variance as it pertains to the encroachment of the northeast comer of the house. If you have any questions regarding this matter, please feel free to contact me. Well, we never signed this, and we never sent it in because we do not approve of this. Oh, gosh. Like I said, I did not expect to speak this way. I'd like to thank my neighbors for coming out and supporting, and I'd really like to thank Mr. Halas for bringing these pictures. I think that really shows clearly what's going to be happening. And, again, I'd like to stress that this boathouse is twice as big as the old one and that the deck is -- is easily twice as big. We are concerned about view, and view does affect property value. We're also concerned about water. I -- my mom, you know, she wants to get along with her neighbors, but this is ridiculous. She had been told by a friend of hers, an appraiser friend, that, you know, with the building coming out the additional couple of feet, that it might direct more water onto our property during a storm. And that's when I thought, oh, my God. With Gabrielle we were already flooded. And that's -- that was her Page 63 April 4, 2002 first concern on the view. I did talk to an engineer who did confirm that, yes -- what her appraiser friend said about directing more water, this engineer did say that, yeah, that could happen. Dr. Kastan told us that he wanted this variance downstairs for-- because the bedroom was too small. He wanted it for a bedroom. Mrs. Kastan has already picked out the furniture. And I'd like to suggest to her that she check out a few more furniture stores and get furniture that fits what they've already got. We do not approve of this variance. Let me see if I have any other notes. Let's see here. I'd be interested to know where the spiral staircase is going to go. Again, I'd like to point out that the picture that was put up, the aerial view of the boathouse, that was an old picture. This boathouse is twice as big, and the deck -- it is not a dock; it's a deck. I think that that covers everything that I -- kind of scrambling making out notes while everybody was talking. Thank you. CHAIRMAN ABERNATHY: Let me --- let me ask you a couple of questions. MS. CARPENTER: Sure. CHAIRMAN ABERNATHY: You've lived there for 20-some- odd -- or you mother has lived there for 20-some-odd years? MS. CARPENTER: My parents bought the house, I believe, in the mid-'80s. CHAIRMAN ABERNATHY: owned his place? And how long has Dr. Kastan MS. CARPENTER: I'm not sure. I think it's less than a year. They started the construction-- I don't know -- I think-- CHAIRMAN ABERNATHY: They've never lived in it, as far as you know? MS. CARPENTER: No. Page 64 April 4, 2002 CHAIRMAN ABERNATHY: Wait a minute. She said no, so that's -- MS. CARPENTER: He has not lived in it to my knowledge. CHAIRMAN ABERNATHY: Okay. But he did come to see you about the variances. MS. CARPENTER: After he bought it and after they were doing construction, yeah. CHAIRMAN ABERNATHY: So he was staying somewhere in -- in Naples? MS. CARPENTER: I think he has another house here in town. CHAIRMAN ABERNATHY: Okay. MS. CARPENTER: I think he mentioned where it was, and it's -- I'm blanking. Sorry. CHAIRMAN ABERNATHY: That's all right. But that was your only contact with him? MS. CARPENTER: Yeah. He -- he came by, I believe, twice. CHAIRMAN ABERNATHY: On the same subject? MS. CARPENTER: Yes. CHAIRMAN ABERNATHY: Okay. Any other questions for Ms. Carpenter? Thank you very much. MS. CARPENTER: Thank you. MR. BELLOWS: That's the end of the speakers. CHAIRMAN ABERNATHY: Mr. Yovanovich. MR. YOVANOVICH: First of all, I -- I want to point out that a lot of what was said is -- basically "I heard from somebody that this might happen," or "I talked to an appraiser, and I might get water on my property," and "I talked to an engineer, and I might get water on my property." That's unsupported by anything in the record and should -- surely clearly shouldn't be considered. CHAIRMAN ABERNATHY: It's sworn testimony. Page 65 April 4, 2002 MR. YOVANOVICH: Right. admit to that. CHAIRMAN ABERNATHY: MR. YOVANOVICH: Yeah. It's sworn hearsay evidence. I'll We're used to that. I -- there were a couple of interesting points that I want to bring up. Mr. Halas purely speculated as to the intent of my client. When he said that my client did this deliberately, he has nothing to support that, and that is -- that is clearly an inflammatory statement and shouldn't be -- shouldn't be considered in your deliberations. I do like his -- I think it was him, or somebody said at the end of his testimony, that we all make mistakes. I mean, that is what I've said right from the beginning. We are not trying to not accept the blame. You never have the person who's to blame here. I mean, that -- they never show up and say, "I made the mistake." I mean, they will be held accountable. I told you that right from the very beginning. We will -- my client will go after whoever made the mistake. Mr. Sowers apparently is -- is in-- in the business, and he says that we've all played the games as far as FEMA goes. And even himself, he's even made a mistake and needed a variance. And that is exactly what we're asking for, is a variance. He's made a mistake, and he wants a variance. And Mr. Novello has made a mistake, maybe. Somebody made a mistake. We're asking for a variance. Mr. Owler said it doesn't impact you (sic). I didn't get the name of the gentleman who's the contractor from up north who's apparently never made a mistake. But his comment about figures being forged, again, is -- is unsupported by the record. And I just want to make sure that I'm protecting people from comments that do affect people's professional reputations, and those statements should not be made unless they can be supported. Page 66 April 4, 2002 What we have asked for, again, is a variance, and I'd like to -- and let me point out, we -- we will go through the process on the boathouse. Okay. I mean, that is not what's before you today. The -- everything that is there right now is legally permitted as far as the boat dock goes. We have not -- we are engineering the roof of the boathouse, and we will come back through whatever the process is on the boathouse. You know, candidly, she'll probably -- you know, if we get -- can you put back up the -- this one right here? That is before Dr. Kastan bought house with the intent of renovating it. That is the view of Mrs. Carpenter. I think even Fred had a picture that shows the view better from her home or at least shows the side of her home. There's not even a window on that side of her home, so it does not -- in Fred's testimony he said it did not impact her view. He's been on the site. He's looked at it. The -- if you look at what's there now, it's certainly no worse than it was. She didn't have much of a view down that corridor in the first place, and she's not going to have much of a different view if the variance is granted. I believe we meet the criteria under the variance. Our own staff has testified that it does not -- that what we're asking for does not impact the health, safety, and welfare of the residents of Collier County. Your own staff has said they haven't looked at the purpose and intent section, so they didn't analyze what we're requesting under all of the applicable criteria for the variance. This is -- contrary to what the public speakers have said, this is not a purposeful intent to deceive Collier County. All the documentation was per -- was provided. A mistake happened. Candidly, the numbers that they get right compared to the numbers that they get wrong are astounding. I mean, it's an infinitesimally small number of mistakes that occur. And Mr. Novello didn't do this on purpose. He's not done this before. He has, when -- when he Page 67 April 4, 2002 knew there was an issue, come and gotten a variance in advance. He did not know. He got a building permit card, and it showed approved. He didn't verify the information. That's the mistake he made. But the survey and the plans were submitted. The mistake occurred. It was not a malicious mistake. That's why you have the variance procedure, to address those oddball circumstances where mistakes occur. And we believe that we -- we have met the criteria and would request that the Planning Commission transmit to the Board of County Commissioners the variance -- the requested petition with a recommendation of approval. COMMISSIONER ADELSTEIN: Mr. Yovanovich? MR. YOVANOVICH: Yes, sir. COMMISSIONER ADELSTEIN: When did your client become aware of the 2 foot -- the original footprint being 2 feet out of compliance? MR. YOVANOVICH: When the spot survey was done for the addition. COMMISSIONER ADELSTEIN: Then knowing that he was 2 feet out of compliance, he built the second story out to that -- over that 2-foot variance. MR. YOVANOVICH: That happened -- that was already done when the survey was -- the spot survey showed the mistake. And, again, he's acknowledged -- he said, "Look, I will not do anything to further -- inside to finish -- finish that. I'll wait and see what the Board of County Commissioners says" with the understanding that, you know, if the variance is denied, he'll have to tear it down. COMMISSIONER ADELSTEIN: This spot variance (sic) came after the second floor was built? MR. YOVANOVICH: Yes. COMMISSIONER ADELSTEIN: Thank you. Page 68 April 4, 2002 COMMISSIONER RICHARDSON: Mr. Chairman. CHAIRMAN ABERNATHY: Mr. Richardson. COMMISSIONER RICHARDSON: Rich, one -- one of the comments that was made by the public is very disturbing to me, and this is the -- the FEMA issue. Now, you might very well say that's not in front of us, but certainly in terms of the total picture here, if there's been, in fact, falsification of documents to any government agency in support of this process going forward, I think we should know about it, and I would like to hear whether or not you have any knowledge that there's been any incorrect information provided to any government agency. MR. YOVANOVICH: Mr. Richardson, I -- I don't have any knowledge about any of that. I'm not involved in that. I've been simply requested to represent my client in the variance. And I opened up by saying if I had any personal knowledge that any of this was done deliberately or by doing something improper, I wouldn't be here. I hope -- I hope we know each other that well at this point to know that I would not come here knowing something was done intentionally wrong. COMMISSIONER RICHARDSON: Is the owner here to represent what he has, in fact, presented to FEMA and whether or not that information is actually correct? MR. YOVANOVICH: I believe Mr. Reischl has checked with Mr. Chartrand and -- of the county's department, and everything appears to be in order. MR. REISCHL: Part of the question at the beginning of this process involved a variance from the flood elevation. And I checked with Gene Chartrand, who is the FEMA coordinator for Collier County, and he -- I did not examine the figures, and I wouldn't know how to anyway. But he told me that the addition was less than 50 percent. Page 69 April 4, 2002 COMMISSIONER RICHARDSON: Explain that to me a little more. Less than 50 percent of what? MR. SCHMITT: Cost. It's 50 percent cost. If you're going to replace a structure and the remodeling is 50 percent or less of the cost of replacing -- the remodel, if you were going to remodel and the percentage is 50 percent or less, then you don't have to comply with the new FEMA requirement. I'm trying to recall now what the basis of that would be. If you replace the entire structure, there's a certain cost. And if the remodeling is 50 percent or less of that, then you-- you can continue to remain at the -- the old standard. CHAIRMAN ABERNATHY: It's 50 percent of the -- of the cost of replacing the existing structure. MR. BELLOWS: That's correct. MR. REISCHL: And I supplied you with the property appraiser's card in your packet. CHAIRMAN ABERNATHY: Well-- MR. SCHMITT: That's wrong? CHAIRMAN ABERNATHY: Then the county -- MR. SCHMITT: I -- I may have misstated. I'm not really sure what the basis is, and we have -- someone just said that we were wrong so -- MR. YOVANOVICH: Well, again, I think what's important here is first of all, all these statements are unsubstantiated by the public. COMMISSIONER RICHARDSON: But, Mr. Yovanovich, I'm trying to get them substantiated by our professional people. MR. YOVANOVICH: I appre -- and, Mr. Richardson, I don't know if-- you know, I don't know that that's even relevant to -- to the discussion. I don't mean that disrespectfully. I mean, I think I don't want to go -- I don't want to go down a trail that is probably not relevant to what I'm asking. Page 70 April 4, 2002 COMMISSIONER RICHARDSON: I knew you would say that. But it seems to me we're building a house on a shaky foundation if, in fact, this foundation is based on an approval from an agency that -- where there's been incorrect information given to it. MR. YOVANOVICH: And that-- if that is, in fact, true, I am sure that there'll be some serious repercussions to the individuals if they did give false information. COMMISSIONER RICHARDSON: Well, how -- how do we intercept that at this point in this process? How can we find out if the statements that have been put on the record here are accurate or inaccurate relative to the FEMA rule for going forward with this project? MR. BELLOWS: IfI may, Commissioner, we are calling Ed Perico to get the exact -- MR. SCHMITT: I would -- I would recommend we take a break and -- at this time. MS. STUDENT: I just need to say something for the record. That may have something to do with the weight you give the testimony of the applicant, but you are bound by the criteria in the land code for the grant of the variance. And the other information about FEMA and the 50 percent rule is not relevant to the variance, but it may be relevant to the credibility that you wish to assign to the testimony given to the petitioner -- that you give to the petitioner and his representatives. CHAIRMAN ABERNATHY: Well, I certainly agree with that. Let's recess for ten -- ten minutes. (A break was held.) MR. YOVANOVICH: If I may go back to the FEMA issue that we started discussing -- and I'll put this into the record -- as it was explained to me, you obtain-- you can either use the property appraiser's appraisal of the property value of the building, or you can Page 71 April 4, 2002 get your own independent appraisal, which is then submitted to FEMA and reviewed and approved. In this particular case, we obtained an independent appraisal. And I don't have it with me; didn't think it was going to be an issue. But the approximate -- as I'm being told, the approximate value of the building itself was $290,000. CHAIRMAN ABERNATHY: Two nine oh? MR. YOVANOVICH: Two nine zero. What FEMA then does is you have their own application that you fill out and submit, and FEMA allocates dollar values to the types of improvements. And they use their dollar values in comparison as to the appraised market value. They don't care what you really pay to your contractor to have that work done. This is both submitted to FEMA and the county for review and approval. And Mr. Novello has told me that his documents have been reviewed and approved by both FEMA and your staff, and they are in compliance with the 50 percent rule, which is 50 percent of the market value of the existing building. So I hope that clarifies all that. And I don't have the work sheets. I'm just telling you we went through the process. It was reviewed and approved, and everything is in compliance with FEMA. CHAIRMAN ABERNATHY: I was up with you until you said they don't care what you actually spend. Isn't that -- MR. YOVANOVICH: Well, that's their -- that's the rule, and that's how they apply the rule, and that's what's important. CHAIRMAN ABERNATHY: They make an estimate of what it's going to cost. MR. YOVANOVICH: They say, "These are the numbers we assign." So we have -- we have complied with -- CHAIRMAN ABERNATHY: And if you're within those-- MR. YOVANOVICH: Right. They add it up. If you do a bathroom -- and I'm picking a number because -- if you -- if they say Page 72 April 4, 2002 a bathroom is 2500 bucks and you're doing a bathroom, that's 2500 bucks on that. If you do a kitchen and they say I think it's a hundred dollars a square foot, they measure it, and they say that's counted in. And then they get to the end of the day, add it all up, and say it's less than 50 percent -- I think it's 49.9 percent -- of the market value, then you're in compliance. COMMISSIONER WOLFLEY: Okay. Well, what -- then if the original structure is 290,000 what is it going to be once the second floor is done, once all this work is done? MR. YOVANOVICH: I -- I don't know the answer to that, and I don't think it's really pertinent to the question of how the FEMA rule is applied, because I think that was the -- someone said do we have a shaky foundation of the permit. And that meant do we not comply with FEMA, and what I'm trying to say is, yes, we comply with FEMA. COMMISSIONER WOLFLEY: Well, I mean, only -- they can only make their assessment on the information they're given. MR. YOVANOVICH: You would give them the plans, and they know -- they see the square footage. They know -- and they use their values. They don't use Collier County values. COMMISSIONER WOLFLEY: You don't know what that percentage was, 10 percent, 20, 30? MR. YOVANOVICH: Oh, that percentage. COMMISSIONER WOLFLEY: Yeah. The percentage increase in value. MR. YOVANOVICH: Based on their numbers? COMMISSIONER WOLFLEY: MR. YOVANOVICH: All right. versus -- I get you. COMMISSIONER WOLFLE¥: Yeah. So you're asking what number What is the assumed assessed value of the new structure? Page 73 April 4, 2002 MR. YOVANOVICH: No, no, no. The existing structure -- COMMISSIONER WOLFLEY: Is 290. MR. YOVANOVICH: -- is 290. I don't know. I didn't-- we didn't do an appraisal of what's the property going to be worth after we do the improvements -- MR. BELLOWS: And ifI-- MR. YOVANOVICH: -- from a market standpoint. COMMISSIONER WOLFLEY: Well, then I guess I don't understand the FEMA rule, because it sounds to me like it has everything to do with it. MR. YOVANOVICH: Well, no. The FEMA rule says, what's the market value of the structure as it exists today? COMMISSIONER WOLFLEY: Correct. MR. YOVANOVICH: And they said the market value of this structure as it exists today is $290,000. COMMISSIONER WOLFLEY: Okay. Got you. MR. YOVANOVICH: You are allowed to do, under that scenario, $145,000 worth of improvements using their calculations of per-square-foot cost, not Collier County square-foot cost. So FEMA reviewed the numbers. Compared to their numbers, it was less than the $145,000 allowed under the FEMA rule, using the FEMA numbers. CHAIRMAN ABERNATHY: Their estimate of what the job was going to cost. MR. YOVANOVICH: Yes. COMMISSIONER RICHARDSON: That includes the addition upstairs and-- MR. YOVANOVICH: That is the addition upstairs. COMMISSIONER RICHARDSON: Not just the footage down below. Page 74 April 4, 2002 MR. YOVANOVICH: It's everything. The rules -- you know, those are the rules, and we -- we have complied with them in our-- I'll let that issue -- COMMISSIONER WOLFLEY: Now, Rich, you don't think FEMA made a mistake, do you? MR. YOVANOVICH: No. Absolutely not. MR. BELLOWS: And if I may, it's not really pertinent to the variance request in hand, and if we could get back to -- COMMISSIONER RICHARDSON: Well, if it -- if it satisfies the commission relative to the credibility of the information that's been given us. MR. YOVANOVICH: Are there any other questions? COMMISSIONER RICHARDSON: Rich, you are assuring us, then -- as far as the boathouse is concerned, even though under the permitting process you can extend those pilings as high as you want, I don't see that you can tie them together and start building the roof, though, until you come back to us; is that correct. MR. YOVANOVICH: Mr. Richardson, you have my word that we will follow the rules for the boathouse. COMMISSIONER RICHARDSON: So the tying together that's already taken place has really gone further than they're permitted to do. MR. BELLOWS: I believe the petitioner said that was just for construction while the -- the pilings are framed up. COMMISSIONER WOLFLEY: Squaring it up. MR. BELLOWS: They'll be removed. COMMISSIONER RICHARDSON: For the purpose of constructing the boathouse. Yes. I understand that. But that's what we're trying to intercept before we get another after-the-fact variance request. Page 75 April 4, 2002 MR. BELLOWS: It's my understanding that they're not -- those construction materials aren't for the boathouse. It's just to help the pilings as they set. MR. YOVANOVICH: Let me state it another way. If we're required to go through a boathouse petition in front of this council, I can assure you I will not be the one representing the client for an after-the-fact variance on the boathouse. COMMISSIONER RICHARDSON: Well, there's plenty of attorneys around. MR. YOVANOVICH: Right. And someone else may do it. But my point is, is I -- it is my understanding this is not -- there's not going to be a Dr. Kastan 2, the sequel. It's never as good as the first one anyway. CHAIRMAN ABERNATHY: Any other questions? Any other member of the public -- there are hardly any left -- that want to speak? All right. I'll close the public hearing and open the floor to discussion, motions, whatever. COMMISSIONER RICHARDSON: Well, Mr. Chairman, I -- I'm still concerned about a number of things here. One of the areas of concern I have was the original staff report, and we've gone back to it repeatedly. And the staff continues -- even though they might not have taken into account all of the criteria that Mr. Yovanovich says they should have or could have, nonetheless the recommendation we have -- and I've asked that question, and they still come back and say they support their recommendation of denying this recommendation (sic). So with all that we've heard, I'm inclined to offer a motion to support the planning services staff recommendation, which is to forward Petition VA-2001-AR-1810 to the Board of County Commissioners acting as a Board of Zoning Adjustment (sic), with a Page 76 April 4, 2002 recommendation of denial, however recommending approval of the original footprint which has been there for 25 years. And that's contained in the original -- the approval of the 2.9-foot variance from the required 25-foot rear yard, which brings that back to 22.1, just reading from the text. That's my motion. COMMISSIONER WOLFLEY: I will -- COMMISSIONER YOUNG: Second. CHAIRMAN ABERNATHY: Mr. Richardson, second; Ms. Young -- Mr. Richardson, motion; Ms. Young, second. What you're saying is we -- your motion just restores the house to where it was before all this started. COMMISSIONER RICHARDSON: Right. CHAIRMAN ABERNATHY: Well, not quite, because they'd have to do something with the second floor, push it back 2 feet. Any discussion of that? MR. REISCHL: Mr. Chairman, ifI could make a clarification, a variance would apply to the house. So this would apply -- if the variance is approved for 2.9, it would apply to the second story and to a potential third story in the future. CHAIRMAN ABERNATHY: The second story has to go back to where the house was. MR. REISCHL: Yes. CHAIRMAN ABERNATHY: That's what I said. MR. REISCHL: Okay. Sorry. That was my misunderstanding. CHAIRMAN ABERNATHY: It was his motion, and that was my understanding of it, and so we agree. COMMISSIONER WOLFLEY: Mine too. CHAIRMAN ABERNATHY: Any further discussion? COMMISSIONER STRAIN: Just to be clear then, the 2.9 feet that exists goes all the way up two stories. That's what we're saying. CHAIRMAN ABERNATHY: Yes. Page 77 April 4, 2002 COMMISSIONER RICHARDSON: Yes. COMMISSIONER WOLFLEY: Right. COMMISSIONER STRAIN: Okay. That's how I understood it. CHAIRMAN ABERNATHY: So he can match the second story to the original footprint, which is what we're aiming for. COMMISSIONER ADELSTEIN: For information, then the balcony could go on beyond that, because then they get 3 feet -- MR. REISCHL: That's correct. COMMISSIONER ADELSTEIN: -- beyond that without -- COMMISSIONER STRAIN: That's correct. COMMISSIONER RICHARDSON: But that's all. COMMISSIONER STRAIN: And that matches the staff's recommendation. CHAIRMAN ABERNATHY: That's right. You on board with us, Fred? MR. REISCHL: Yes. Thank you. CHAIRMAN ABERNATHY: Any further discussion? Call the question. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN ABERNATHY: Opposed by like sign. (No response.) CHAIRMAN ABERNATHY: Denied unanimously. Well, partly approved and partly denied in accordance with our mutual understanding. MR. YOVANOVICH: Thank you for your time and consideration. COMMISSIONER STRAIN: Thank you for your purpose and intent statements. COMMISSIONER RICHARDSON: We'll probably see you again sometime. Page 78 April 4, 2002 that. COMMISSIONER WOLFLEY: Hopefully there's no mistake in MR. YOVANOVICH: No, not on that. Thanks. CHAIRMAN ABERNATHY: Moving right along, we have old business. Mr. Strain. COMMISSIONER STRAIN: Each meeting for the past few months we've talked about documents we needed to complete our package, and I wanted to let the record know that I have received my adoption notebook, and for that I thank the staff. And I also, in discussions with Ms. Murray, was told that today -- maybe by tomorrow -- I'll have my missing elements of my ULDC, and for that I thank staff. So as far as the record's concerned, I now have everything, and I appreciate staff gathering it and getting it to me as they have. It has helped out tremendously. So that's all I have under old business. CHAIRMAN ABERNATHY: Any other old business? Any new business? MR. BELLOWS: Yes, Commissioner. For the record, Ray Bellows. I'd like to introduce Don Schneider. Don, if you'd come up. He's a new principal planner hired by the county. He's been here about a week or so, and you'll be seeing him from time to time with the land use petitions. CHAIRMAN ABERNATHY: Welcome aboard. MR. SCHNEIDER: Aloha and thank you. CHAIRMAN ABERNATHY: Are you -- you're not relocating from Lee County, are you? MR. SCHNEIDER: No, sir. MR. SCHMITT: Don is relocating from Maui. CHAIRMAN ABERNATHY: I can tell by that tie, now that I look at it. That's a great tie. Page 79 April 4, 2002 COMMISSIONER RICHARDSON: If you've been here a week, why haven't you presented something? MR. SCHNEIDER: I'm working on that too. MR. BELLOWS: So am I. I have a pile that I would like to -- CHAIRMAN ABERNATHY: Glad to have you. COMMISSIONER WOLFLEY: We'll see you in the future. MR. SCHNEIDER: Thank you. It's a pleasure to be with you. COMMISSIONER RICHARDSON: I hope our inquisition of staff has not dissuaded you from your new task. MR. SCHNEIDER: No, afraid not. I'm rather accustomed to this. Thank you. CHAIRMAN ABERNATHY: Okay. Being nothing further -- COMMISSIONER RICHARDSON: Mr. Chairman, new business. CHAIRMAN ABERNATHY: Other new business? COMMISSIONER RICHARDSON: Just in the way of discussion if I may, I'm -- we all read the newspaper, and we hear a lot about concurrency and lack thereof, at least by some people's assessment. And we hear a lot about our infrastructure not keeping up with the growth that the county is permitting to occur. And I'm really wondering if there' some additional role that this commission can have that would be constructive -- rather than get in the way, but could be constructive to this whole process. Because we continue to handle little problems and issues that come up to us through the code, but I really feel there's a lot of larger questions that we need to have staff's and perhaps our collective wisdom to be brought to bear. CHAIRMAN ABERNATHY: Well, there's something in the Land Development Code changes that we're going to consider next week that bear on concurrency, I think. MS. STUDENT: Yeah. We -- go ahead, Joe. Page 80 April 4, 2002 MR. SCHMITT: Mr. Abernathy and fellow commissioners -- or at least commissioners, I -- this issue has certainly been around at least since I've been in the county, and that's, wow, 12 weeks now. For some reason it seems like a little bit longer than that. But actually what -- we had a meeting yesterday, the county manager; assistant counter manager; myself; and Norm Feder, director -- or administrator for transportation. What we're really going to do is propose a series of workshops, and I -- this has not yet been presented to the board, but we're going to try and -- the board is very much in desire to look at the Land Development Code and the Growth Management Plan, and we're going to schedule a series of workshops to do that, probably three in the spring and then another three after the summer recess. We will certainly invite members of this board to participate in that as we frankly nug (phonetic) through the process. We're going to identify some areas that we think need to be looked at. And really, because of the direction the board has gone in moving the PUD process much closer to the site development plan process -- because as you well know, the PUD process is really fundamentally based on zoning. And sometimes the public misunderstands when a PUD is approved, the next day the building permit is approved, and then the bulldozers are out the next day leveling trees and -- and beginning to construct. And there certainly is a time line associated with that, and that -- therein lies some of the misunderstanding of concurrency. But what we're going to try and do is schedule a series of workshops as we address those issues, get some guidance from the board. And we're still trying to figure out how those will be structured and -- and the part you-all will play, whether as a board or as certainly concerned citizens. We don't know, and I'm going to Page 81 April 4, 2002 have to -- that'll have to be something that'll have to be cleared through the county attorney as we -- we begin to develop this. But it'll be an open meeting, and-- and we need to help the board focus on the issues that we think they need to focus on as we -- we amend. And that'll be separate and distinct from our-- our LDC process that is coming to you here in a -- over the next two meetings. And you will be hearing something more about the transportation concurrency piece, because 3.15 of the LDC is part of that amendment process. But that's all I can offer right now as far as -- and I appreciate, Commissioner Richardson, your desire, because we would certainly appreciate -- we're going to need assistance from this board as well as probably representatives from both the public and -- and those who will be impacted in the industry as we -- we begin to -- to get some guidance, because the -- the Land Development Code -- when we make a recommendation, as you well know and then the board well knows, our recommendations are founded firmly on the guidance in the LDC and the Growth Management Plan. And sometimes when we come before the board those -- those recommendations, though correct and defined based on the -- those documents, sometimes differ from the opinions of the board. So we just need to make sure that we're in sync. COMMISSIONER RICHARDSON: And I will only make a further comment that there are a lot of advisory boards and commissions about. MR. SCHMITT: Right. COMMISSIONER RICHARDSON: However, I'm persuaded, as least by the county attorneys, that we have a special statutory function, which is to act as the official planning agency for the county. MR. SCHMITT: Right. Page 82 April 4, 2002 COMMISSIONER RICHARDSON: And I don't see us functioning in that -- that behalf all that often. It's more reactive to things that come along, rather than being proactive. And I would just like to nudge us into that role if we -- MR. SCHMITT: And I -- I would hope, at least in this case as we try and structure these workshops, that this board would be an active part of that process. It's just -- we're going to have to figure out just how we're going to conduct this as -- and the process in trying to determine and -- and make recommendations. So it's -- it's - - we're still working through that now with the county manager, and we're trying to figure out exactly how we're going to do this. COMMISSIONER RICHARDSON: Appreciate that comment. CHAIRMAN ABERNATHY: Any other new business? Do we have a motion to adjourn? COMMISSIONER ADELSTEIN: I so move. COMMISSIONER STRAIN: So move. CHAIRMAN ABERNATHY: We are adjourned. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11:10 a.m. COLLIER COUNTY PLANNING COMMISSION KENNETH L. ABERNATHY, CHAIRMAN Page 83 April 4, 2002 TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 84 COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION April 3, 2002 WCI Communities Dwight D. Thomas, Vice President 24301 Walden Center Dr. Bonita Spriings, FL 34134 REFERENCE: PDI-2001-999, Pelican Bay PUD Dear Mr. Thomas: As per your request dated March 29, 2002, the withdrawn. If you have any questions, please contact me at 403-2400. Raymond Bellows Chief Planner KB/lo Enclosure CC: WCI Communities, Inc. Land Dept. Property Appraiser / Minutes & Records (BD, PSP & PDI) Customer Service Addressing (Peggy Jarrell) M. Ocheltree, Graphics File PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 above referenced petition is hereby Phone (941) 403-2400 Fax (941) 643-6968 www. colliergov, net WCI · COMMUNITIES, INC. March 29, 2002 Mr. Ray Bellows, Chief Planner Curr~t Planning Section Collier County Division of Community Development and Environmental Services 2800 North Horseshoe Drive Naples, Florida 3,1104 Request to Withdraw PDI-2001-AR-999 Insubstantial Change Dctarnination to the PUD Master Plan Pelican Bay PUD Dear Mr. Bellows: As applicant and property owner, WCI Communities, Inc., hereby withdraws PDI-2001-AR-999, which is also referred to as Project Number 19990140. Any activity on this petition other than that required for closure, including any public noticc or hearing, should be discontinued or cancelled upon reccipt of this notice. Please confirm in wriiing that the petition has been withdrawn and that the request will not be. heard by thc Planning Commission at thtrir mceting scheduled for April 4, 2002. Thank you for your assistance and please let mc know ifI need to provide any additional information or material. Vice President Creating Lasting Lifestyles COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION April9,2002 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 TURRELL & ASSOCIATES, INC. CHRISTIAN SPILKER 3584 EXCHANGE AVE, SUITE B NAPLES, FL 34104 REFERENCE: BD-2001-AR-1608, MCCROHAN, JOHN J. Dear Applicant: On Thursday, April 4, 2002, the Collier Petition No. BD-2001-ARA 608. County Planning Commission heard and approved A copy of Resolution No. 02-03 is enclosed approving this use. If you have any questions, please contact me at 403-2400. Ross Gochen~ Planner RG/Io Enclosure CC: JOHN & CHERYL MC CROHAN 127 Third Street West Bonita Springs, FL 34134 /LMand Dept. Property Appraiser inutes & Records (BD, PSP & PDI) Customer Service Addressing (Peggy Jarrell) M. Ocheltree, Graphics File Phone (941) 403-2400 Fax (941) 643-6968 www. colliergov, net CCPC RESOLUTION NO. 02- 03 RELATING TO PETITION NUMBER BD-2001-AR-1608 FOR AN EXTENSION OF A BOAT DOCK 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 91-102) which establishes regulations for the zoning of particular geographic divisions of the County, among which is the granting of variances; and WHEREAS, the Collier County Planning Commission, being the duly elected and constituted Planning Commission for the area hereby affected, has held a public hearing after notice as in said regulations made and provided, and has considered the advisability of a 30- foot extension of a boat dock from the permitted 20 feet to allow for a 50- foot boat dock facility in an RSF-4 zoning district for the property hereinafter 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 Section 2.6.21. of the Collier County Land Development Code; and WHEREAS, all interested parties have been given the 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 Christian Spilker, of Turrell and Associates, Inc., representing John J. McCrohan, with respect to the property hereinafter described as: Lot 16, Block G, Little Hickory Shores Unit 3 Replat, as described in Plat Book 6, Page 2, of the Public Records of Collier County, Florida. be and the same is hereby approved for a 30-foot extension of a boat dock from the permitted 20 feet to allow for a 50-foot boat docking facility in the RSF-4 zoning district wherein said property is located, subject to the following conditions: All docks, or mooring pilings, whichever protrude the greater into the water, regardless of length shall have reflectors and house numbers four (4) inches minimum size installed at the outermost end on both sides. 2. In order to address the protection of manatees, at least one (1) "Manatee Area" sign shall be posted during construction. 3. Permits or letters of exemption from the U.S. Army Corps of Engineers and the Florida Department of Environmental Protection shall be presented prior to issuance of a building permit. 4. All exotic vegetation as defined in Section 3.9.6.4.1 of the Land Development Code shall be removed from the site and the property shall be maintained exotic-free in perpetuity. 5. The dock shall be field-adjusted to minimize impact to mangroves. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number BD-2001-AR-1608 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 g][/~ day of 2~ , 2002. ATTEST: E~oer~iuVn]t~;evtea~opment and Environmental Services Administrator Approved as to Form and Legal Sufficiency: Mmjori~M. Student Assistant County Attorney RG/sp COLLIER COUNTY PLANNING COMMISSION COLLIER .COUNTY, [LO10~DA KENNET~ L. ABERNATI~IY7 CHAIRlVI'AN COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION April 9, 2002 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRrVE NAPLES, FL 34104 HILO CAPRI INC 174 HILO DRIVE NAPLES, FL 34113 REFERENCE: BD-2001AR- 1701, DIETZ BOAT DOCK EXTENSION Dear Applicant: On Thursday, April 4, 2002, the Collier County Planning Petition No. BD-2001 AR- 170 I. A copy of Resolution No. 02-02 is enclosed approving this use. If you have any questions, please contact me at 403-2400. Sincere Ross Goc2fenaur Planner RG/lo Commission heard and approved Enclosure CC: HILO CAPRI INC j~?d Dept. Property Appraiser nutes & Records (BD, PSP & PDI) Customer Service Addressing (Peggy Jarrell) M. Ocheltree, Graphics File Phone (941) 403-2400 Fax (941) 643-6968 www. ~rgov. net CCPC RESOLUTION NO. 02- 02 RELATING TO PETITION NUMBER BD-2001-AR- 1701 FOR A BOATHOUSE 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 91-102) which establishes regulations for the zoning of particular geographic divisions of the County, among which is the granting of variances; and WHEREAS, the Collier County Planning Commission, being the duly elected and constituted Planning Commission for the area hereby affected, has held a public hearing after notice as in said regulations made and provided, and has considered the advisability of a 19.3 foot by 36 foot boathouse to be built in conjunction with a boat dock of the same dimensions in an RSF-4 zone for property hereinafter 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 Section 2.6.21. of the Collier County Land Development Code; and WHEREAS, all interested parties have been given the 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 Robert E. Dietz, representing Hilo Capri, Inc., with respect to the property hereinafter described as: Lot 406, Isles of Capri No. 2, as described in Plat Book 3, Page 46, of the Public Records of Collier County, Florida. be and the same is hereby approved for a 19.3 foot by 36 foot boat house to be built in conjunction with a dock of the same dimensions in the RSF-4 zoning district wherein said property is located, subject to the following conditions: 1. All docks, or mooring pilings approved in conjunction with this project, whichever protrude the greater into the water, regardless of length shall have reflectors and house numbers four (4) inches minimum size installed at the outermost end on both sides. 2. In order to address the protection of manatees, at least one (1) "Manatee Area" sign shall be posted during construction. 3. Permits or letters of exemption from the U.S. Army Corps of Engineers and the Florida Department of Environmental Protection shall be presented prior to issuance of a building permit. 4. All exotic vegetation as defined in Section 3.9.6.4.1 of the Land Development Code shall be removed from the site and the property shall be maintained exotic-free in perpetuity. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number BD 2001-AR-1701 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 /~ 7t~ day of ,2002. ATTEST: "Services iAdministrator nvironmental COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA KENNETH L. ABERNATFIY, CHAIRMAN Approved as to Form and Legal Sufficiency: Maxjor~ M. Student Assistant County Attorney BD/2001 -AR- 1701/RG/Io