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BCC Minutes 06/19/2002 S (LDC Amendments)June 19, 2002 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS LAND DEVELOPMENT CODE AMENDMENTS PUBLIC HEARING Naples, Florida June 19, 2002 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for Collier County, having conducted business herein, met on this date at 5:05 p.m., at County Commission Meeting Room, 3301 Tamiami Trail East, Naples, Florida, with the following members present: CHAIRMAN: JIM COLETTA DONNA FIALA FRED COYLE TOM HENNING JAMES D. CARTER ALSO PRESENT: Susan Murray, Planning Services Dept. Majorie Student, Asst. County Attorney Joseph Schmitt, Comm. Dev. Admin. Michael Pettit, Asst. County Attorney Edward Riley, Collier Fire District Thomas Wides, Public Utilities Op. Director Norman Feder, Transportation Admin. Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA June 19, 2002 5:05 p.m. NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY 1 June 19, 2002 FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (941) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. PLEDGE OF ALLEGIANCE 2. AGENDA Ae Added: AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE COMPREHENSIVE REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA, BY PROVIDING FOR: SECTION ONE, RECITALS; SECTION TWO, FINDINGS OF FACT: SECTION THREE, ADOPTION OF AMENDMENTS TO THE LAND DEVELOPMENT CODE, MORE SPECIFICALLY AMENDING THE FOLLOWING: ARTICLE 2, ZONING, DIVISION 2.1. GENERAL; DIVISION 2.2. ZONING DISTRICTS, PERMITTED USES, CONDITIONAL USES, DIMENSIONAL STANDARDS INCLUDING REVISIONS TO THE C-1 THROUGH C-5 AND INDUSTRIAL ZONING DISTRICTS LIST OF PERMITTED AND CONDITIONAL USES; DIVISION 2.4 LANDSCAPING AND BUFFERING; DIVISION 2.6 SUPPLEMENTAL DISTRICT REGULATIONS; DIVISION 2.7 ZONING ADMINISTRATION AND PROCEDURES; DIVISION 3.2 SUBDIVISIONS; DIVISION 3.3 SITE DEVELOPMENT PLANS; DIVISION 3.13 COASTAL CONSTRUCTION SETBACK LINE VARIANCE; DIVISION 3.15 ADEQUATE PUBLIC FACILITIES; ARTICLE 6, DEFINITIONS DIVISION 6.3 INCLUDING BUT NOT LIMITED TO THE DEFINITION FOR THE TERM HOTEL SUITE; SECTION FIVE, ADOPTION OF AMENDED ZONING ATLAS MAP; SECITON SEVEN, CONFLICT AND SEVERABILITY; SECTION EIGHT, INCLUSION IN THE COLLIER COUNTY LAND DEVELOPMENT CODE; AND SECTION NINE, EFFECTIVE DATE. Be AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, 2 June 19, 2002 me FLORIDA BY PROVIDING FOR: SECTION ONE: RECITALS; SECTION TWO: FINDINGS; SECTION THREE:AMENDMENTS TO THE LAND DEVELOPMENT CODE, MORE SPECIFICALLY AMENDING SUBSECTION 2.2.30. AND SUBSECTION 2.2.31. RESPECTIVELY TO EXTEND THE DURATION OF THE MORATORIUM ESTABLISHED BY ADMINISTRATION COMMISSION FINAL ORDER IN CASE NUMBER ACC NO. 99-002 RELATING TO THE INTERIM NATURAL RESOURCE PROTECTION AREAS WITHIN THE RURAL AREA SUBJECT TO SAID ORDER AND FOR THE RURAL AREA (INCLUDING THE RURAL FRINGE AND EASTERN LANDS AREAS) SUBJECT TO SAID ORDER UNTIL SUCH TIME AS THE GROWTH MANAGEMENT PLAN AMENDMENTS AND LAND DEVELOPMENT REGULATIONS NECESSARY TO IMPLEMENT SAID FINAL ORDER BECOME LEGALLY EFFECTIVE; SECTION FOUR: CONFLICT AND SEVERABILITY; FIVE: INCLUSION IN THE COLLIER COUNTY LAND DEVELOPMENT CODE; AND SECTION SIX: EFFECTIVE DATE. ADJOURN INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774 8383. 3 June 19, 2002 June 19, 2002 CHAIRMAN COLETTA: Ladies and gentlemen, take your seats, please. Welcome to the June 19th LDC public hearing. Would you all stand, please, for the Pledge of Allegiance. (Whereupon, the Pledge of Allegiance was recited and the meeting commenced as follows:) Item #2B ORDINANCE 2002-30 AMENDING ORDINANCE 91-102, THE COLLIER COUNTY LAND DEVELOPMENT CODE FOR THE UNINCORPORATED AREA OF COLLIER COUNTY BY EXTENDING THE DURATION OF THE MORATORIUM- ADOPTED CHAIRMAN COLETTA: Good evening, Susan. MS. MURRAY: Good evening, Commissioners. My name is Susan Murray. I'm the Interim Planning Director. And this is the second of two required public hearings for the first cycle of the 2002 Land Development Code Amendments. And this evening, you will be taking final action on the Land Development Code items that you heard at your first hearing approximately three weeks ago. As well, I know Marjorie Student needs to get some information on the record. This amendment cycle actually has two ordinances associated with it, one of which the county attorney's office is handling, and we thought we would just go ahead and get that out of the way first and then the remainder of the items. MS. STUDENT: Thank you, Susan. For the record, Marjorie Student, Assistant County Attorney. And the separate ordinance is an item that you saw before as part of a side sheet, and it's a Page 2 June 19, 2002 housekeeping matter that really extends the moratoria out in the rural area that was the subject of the Governor and Cabinets final order from June 22nd, 2002, which is Saturday, until such time as the comp plan and the necessary implementing land development regulations become legally effective. Again, it's a housekeeping matter that we must do because we got an extension from the Governor and Cabinet of the final order. And it was broken into a separate ordinance because we must have it in Tallahassee by Friday, so we will FedEx this out tomorrow and it will in the Secretary of State's Office Friday. And that is why it was broken down into a separate ordinance, because typically, we have to do a little tweaking and so forth on the regular LDC ordinances and we have a full ten days under statute to get it out. But this one must go quicker, so that's why it was done, and accordingly, I would need a separate motion and vote, and as part of that motion, a finding of consistency with the comp plan. I don't know if there is anyone signed up to speak on this item and I have copies of the ordinance here, but after you open it to the public and close it, you can vote and dispose of this one. Thank you. CHAIRMAN COLETTA: Do we have any public speakers? MR. SCHMITT: We have no registered public speakers on this item. COMMISSIONER CARTER: Mr. Chairman, I would move for approval. COMMISSIONER FIALA: I'll second it. CHAIRMAN COLETTA: I'll close the public hearing and we have a motion for approval by Commissioner Carter and a second from Commissioner Fiala. Is there any discussion? Commissioner Henning. Page 3 June 19, 2002 COMMISSIONER HENNING: I'm finding that it's in compliance with the growth management plan. CHAIRMAN COLETTA: You make that part of your motion, too? COMMISSIONER CARTER: Yes. COMMISSIONER FIALA: I second it. CHAIRMAN COLETTA: Is there any other discussion? All in favor say, aye. THE BOARD: Aye. CHAIRMAN COLETTA: The ayes have it five to zero. MS. STUDENT: Thank you. CHAIRMAN COLETTA: Thank you. REQUEST TO HAVE EXECUTIVE SESSION ON JUNE 25, 2002, REGARDING SHADER LOMBARDO INVESTMENT COMPANY VERSUS COLLIER COUNTY- APPROVED MR. SCHMITT: We have one additional item from the county attorney's office. Mike? MR. PETTIT: Good evening, Commissioners. I thank you for indulging us to get this item on. This is a request. We need advice on a pending litigation matter with respect to settlement negotiations and strategies related to litigation expenses in a lawsuit called Shader Lombardo(phonetic) Investment Company versus Collier County. And under Section 286.011, subsection eight of the Sunshine Law, we are requesting that we meet in executive session or closed session on June 25th, 2002. This would come up under the County Attorney's Agenda Item, which is typically at the end of your, I think it's about the last item on your agenda, so it would be later in the day. Page 4 June 19, 2002 And those in attendance at the session, in addition to the Board would be me and David Weigel and Tom Olliff. Basically, this is a request that we are making in order to comply with 286.011. CHAIRMAN COLETTA.. Okay. Do you need a motion and a second? MR. PETTIT: Yes. COMMISSIONER CARTER: So moved. COMMISSIONER FIALA: Second. CHAIRMAN COLETTA: We have a motion from Mr. Carter and a second from Ms. Fiala. Is there any questions or dicussion? All those in favor, indicate by saying, aye. THE BOARD: Aye. CHAIRMAN COLETTA: The ayes have it five to zero. MR. FEDER.. The only other thing is, again, it will come up on the -- on the May -- or the June 25th agenda as a recommendation. I don't know whether Mr. Weigel will require you to vote again at that time, to go into executive session but -- and then, if there is going to be action taken, we would have to come back out and have a separate item for any action because you can't take action in executive session. CHAIRMAN COLETTA: Thank you. MR. PETTIT: I'm sorry. Michael Pettit, Assistant County Attorney. Item #2A ORDINANCE 2002-31 AMENDING ORDINANCE 91-102, THE COLLIER COUNTY LAND DEVELOPMENT CODE AS AMENDED _ ADOPTED WITH CHANGES Page 5 June 19, 2002 CHAIRMAN COLETTA: I'll try to -- in fact, that goes for everyone on staff. If you would please open -- open your presentation with your name and title. MS. MURRAY: Thank you, Mr. Chairman. Again, Susan Murray, planning services department. Just very quickly, and just a reminder, the way the package is organized, you have a set of summary sheets that summarizes each of the amendments. You have the recommendation by the EAC, DSAC and DSAC subcommittee and planning commission all outlined as well as comments from your first public hearing. If you wish, Mr. Chairman, I can go directly to those items where you had specific comments and review what we changed pursuant to your comments at the last hearing. CHAIRMAN COLETTA: In the course of this, if any of the commissioners here wish to go over any details, we'll do so. MS. MURRAY: You may stop me at any time. I would be happy to do that. We worked again from the handwritten pages in the middle of your thick document. And I'll go ahead and begin with Section 2.1.15. You had no comments. Next, on Section 2.2.6 and 2.2.7, page two, the Board asked to amend -- and this is to do with the residential multifamily setbacks. The Board asked us to amend the language to prevent bottom-level garages from being included in the setback measurement. If you look on page two, you will see that that language was amended to take the measurement from the first floor of the structure. And again, we are working from the handwritten pages, yes, in the middle. MR. SCHMITT: It is -- on the stamped square, it says page ten, but in the middle, it's page two, to add to the confusion. Page 6 June 19,2002 COMMISSIONER COYLE: I have a question. Now, this applies only to argument 12 and argument 16. Have we taken action with respect to other zoning categories? MS. MURRAY: We have taken action with respect to other zoning categories to eliminate the wedding cake. COMMISSIONER COYLE: Wedding cake? MS. MURRAY: Yes. COMMISSIONER COYLE: And this is the same thing. It's just for a different zone. MS. MURRAY: That's correct. COMMISSIONERCOYLE: Okay. Thank you. MS. MURRAY: If there are no other comments, the next item will be on page four, and this has to do with the commercial zoning districts. And the request here to -- and I'll actually refer you to page eight. And this amendment affects each of the commercial zoning districts, so I'll just work from page eight, because this is the only change, knowing that it effects all the remaining commercial zoning districts as well. The request was to determine -- to define the term, adjacent -- and -- and this is where I need a little help from the Board. The feeling I got was that the Board did not want to have an alley separating commercial versus residential as a way for this regulation not to apply. And so the amendment here requires that where commercial property boundaries are within 50 feet of a property boundary of residentially-zoned lands, any parking or overnight storage of fleet vehicles would have to occur in a completely enclosed building. That's one option. Page 7 June 19, 2002 The other option is for me to define the term adjacent as sharing the common property line exclusive of an alley separating property boundaries. And I can could do that or I can define the term adjacent as commercial property line abutting a residential property line. So where there was an alley, those obviously would not be adjacent by the definition and those properties would be excluded from this regulation. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: No -- no. I'm sorry. I was just going to point out this was Commissioner Henning's -- CHAIRMAN COLETTA: Okay. Your hand was going up and down. I wasn't sure. COMMISSIONER HENNING: Just to clarify it. Ms. Murray, what we are trying to do is by putting the word in, adjacent, is to capture residential -- when the separation is an alley and commercial, we want to capture that as those vehicles need to be in an enclosed building? MS. MURRAY: Yes. If you -- the way we had proposed it to you the first time was, is if the properties were adjacent, if you had commercial adjacent to residential, and you directed us to define the term adjacent. The discussion came about up about alleys, and you asked if alleys would -- if an alley separated a commercial piece from a residential piece, would that still be adjacent, and my -- the feeling I got from you is that you probably did not want to exclude properties that incorporated an alley between commercial and residential. I may be wrong. If you don't want to exclude alleys, I can -- I can amend this to read adjacent -- define adjacent exclusive of alleys, so if an alley separates a commercial and residential piece, the regulation would still apply, or if it's acceptable to you that -- that an alley -- if an alley Page 8 June 19, 2002 separates commercial from residential, that that's sufficient buffering distance and the regulation would not apply. I can write that as well. COMMISSIONER HENNING: Correct. I, you know, thinking about it, looking out there in the community, an alleyway separation is -- is not enough to have that outside. I would think it would have to be enclosed. There are many examples, and that's the concern that I think that everybody had was there are a lot of examples out there that's going to create a huge hardship, so I'm okay with commercial enclosed when it is adjacent by an alleyway. MS. MURRAY: Okay. The way it's drafted now is there is a 50-foot separation requirement and that -- that's another way of creating a distance buffer. But if an alley separation is all that you are concerned about, I would rather strike through this 50-foot and just exclude alleys from the adjacency definition so that if an alley separated commercial from a residential, you would have to abide by this regulation. CHAIRMAN COLETTA: Commissioner Carter. COMMISSIONER CARTER: I'm a visual person so I have to think through this for a minute. If it's residential on one side of the alley and the other side of the alley was commercial, and that commercial establishment might have ten service vehicles, if the alley is a separation, then I could park them in a lot next to my building, which people from the other side could see, if an alley is the separation. But if I'm understanding this, I couldn't do that. I have to have an enclosure to put my ten vehicles in so that the neighbors across the alley could not see them; is that correct? MS. MURRAY: That's correct. CHAIRMAN COLETTA: Commissioner Coyle. Page 9 June 19, 2002 COMMISSIONER COYLE: Just a question for Commissioner Henning. Would -- would a small narrow street qualify or is that the -- the intent of the restrictions? Should you say alley or should you say street? And I don't have a preference. I'm just raising the issue for clarification. COMMISSIONER HENNING: My only concern of the last LDC cycle is I didn't know what the word adjacent meant. And when somebody goes to the Land Development Code, what does that mean, adjacent? Adjacent, abutting and things like that, just for clarification, I'm okay with the language that we just discussed. CHAIRMAN COLETTA: Okay. Now, one more time. Let me see if I can clarify it. What we are looking at is language that says that if the commercial, C- 1 right through C-5, is located across from an alley from a residential location, residency, that they would not be allowed to store their vehicles overnight. They would have to put them inside the -- the establishment itself?. MS. MURRAY: If you look on this visual, it's a very brief visual, imagine this is the main road -- CHAIRMAN COLETTA: Uh-huh. MS. MURRAY: Okay? And you have a commercial piece off the main road, behind the commercial piece, you have an alley, and then behind the alley you have residential. CHAIRMAN COLETTA: But now, if the residence was on the other side of the road, this wouldn't apply? MS. MURRAY: Correct. CHAIRMAN COLETTA: I'm not too sure -- a couple of questions, if I may. Is there many partials that this is going to affect? I know what the reason for this is and where it came from. I believe it's District 3 where this probem has arisen from, but what kind of Page 10 June 19, 2002 impact is this going to have on the general commerce throughout Collier County? MS. MURRAY: It predominantly will impact Golden Gate City, but the -- the rule would read that you just couldn't park vehicles -- fleet vehicles there unless you had an enclosed building. So you could either park them somewhere else, or you could construct an enclosed building. determine -- CHAIRMAN COLETTA: I'm not sure if it qualifies to Well, and, I'm sorry. What I'm trying to do is I -- I know why we are doing this. There was an unsightly situation on the Parkway that you could see, and I know we are trying to address something globally for that situation. And I'm -- I'm trying to find out what the ramifications of this rule would be past where we are trying to make that one correction. And this is what's got me concerned. Who am I destroying by putting this particular rule out where these people may have been doing business for years and now -- and they get -- have been getting along great with the residents behind them. Because when you look at an alleyway, the residents that are in the back there, it's going to be their back part. That's going to be looking back in at them. Am I correct? MS. MURRAY: More than likely, yes -- CHAIRMAN COLETTA: Yeah. And in all fairness, in the other way, you would have them -- their front door looking at the front door of the commercial, across the road. I'm not too sure if I'm comfortable with this. I would like to hear some more discussion from my colleagues. Commissioner Henning. COMMISSIONER HENNING: Chairman Coletta, if you were in a residence and there was an alley separation, 4:00 in the morning, Page 11 June 19, 2002 when you start hearing car doors banging, engines starting up, loud mufflers, is that a quality of life issue for you? CHAIRMAN COLETTA: Very much so. COMMISSIONER HENNING: Okay. CHAIRMAN COLETTA: But if the vehicles were stored indoors, you are still going to have the same quality of life issues. COMMISSIONER HENNING: No. CHAIRMAN COLETTA: I'm just not too sure how far we are reaching past where the intended goal was. And that's the only reason I'm bringing this up for discussion. Is there going to be hundreds of businesses that have been continuing on a regular basis with no complaints from the neighbors behind them, if somebody is going to find themselves unable to operate because of this ordinance? Is it something that is so specific that it's going to be addressing future actions or this one example that's on the Parkway? COMMISSIONER FIALA: Maybe we could ask someone. CHAIRMAN COLETTA: Is there someone from zoning or code here that we might be able to ask that question of?. COMMISSIONER HENNING: No. Nobody from code enforcement. MS. MURRAY: Again, it's really only going to apply to businesses that have fleet vehicles. A lot of these businesses don't. CHAIRMAN COLETTA: How many vehicles constitute a fleet? MS. MURRAY: It's not defined in the-- CHAIRMAN COLETTA: Is it more than one vehicle? If you have got two vehicles that are labeled the same, is that a fleet? Page 12 June 19, 2002 MS. MURRAY: I think the term fleet really refers to those that are directly associated with the business. It's not necessarily the number. CHAIRMAN COLETTA: The ones that are going to be parked there in the evening? MS. MURRAY: Correct. CHAIRMAN COLETTA: Do you think possibly it might be advantageous to establish a number so if there is a small business out there this is going to impact and they only got two vehicles or three vehicles? What do you think, Mr. Henning? COMMISSIONER HENNING: Not much. COMMISSIONER FIALA: You know, I think you bring up a good point actually. I was just thinking, I never thought of that until you said that. But I'm thinking now, in my area, we have a triangle, for instance, where you have residential at one end of the triangle and you have all these tiny little businesses at the other, and nobody has enough room to enclose anything, and -- and I'm wondering if that might affect them. I never hear a complaint from them. Maybe we could just -- maybe we could define this particular change to Golden Gate City? Would that work? COMMISSIONER HENNING: No, ma'am. COMMISSIONER FIALA: No? COMMISSIONER HENNING: Let's identify -- COMMISSIONER FIALA: You want county-wide? COMMISSIONER HENNING: Well, you cannot -- either it can be an urban -- you could apply it to your urban area. Page 13 June 19, 2002 MS. MURRAY: You're going to -- most of your older subdivisions is where this is going to come into effect. It will affect Naples Park. COMMISSIONER FIALA: I was just thinking about Naples Park too, yeah. MS. MURRAY: And the impacts obviously increase with the number of vehicles. If it's the Board's direction, we could certainly attempt to define the number of vehicles. Obviously the visual and noise affects would be greater with a greater number of vehicles. CHAIRMAN COLETTA: Commissioner Carter. COMMISSIONER CARTER: But, in Naples Park, you would have to have the business and the vehicle tied together. It doesn't mean that a guy who works for ABC Soundsytems and drives the vehicle home at night and parks in his driveway at his home is affected by this. COMMISSIONER HENNING: Right. COMMISSIONER CARTER: But it's, you know, it's -- it's -- I'm sorry I even raised the question. I guess, if there was a buffer, I consider an alley a buffer. I would guess a fence where I couldn't see the vehicles, and three or four, or maybe if you wanted to go five or more, maybe you are nitpicking this, and I don't want to do this. And I don't know how many situations out there exist like this, but my experience in the past is, when you do something like this, and finally the community finds out about it by code enforcement, the people where they are affected the most, could be, Commissioners Coletta and Henning, you will have more phone calls than you were looking for and then you've got to come back to another LDC process and say, "Wait a minute. I think we are too restrictive," so I don't know. Page 14 June 19, 2002 It's your call because it's your communities that are affected probably more than others. What I question is, it a problem or is it a foreseen problem, and if you leave the alley in there as the buffer, what happens? MS. MURRAY: That's an option you may want to consider, you know, considering this at a later time in the year and bringing it through the community character, because obviously the aesthetic and functional impacts of this affects community character in the neighborhood as well and that may be an option for you. CHAIRMAN COLETTA: If-- if I may, on that particular thing, if we do bring it back -- not -- and I'm not saying I'm totally opposed to the idea. It's just, I don't know, first, if this has been a problem with complaints, and I don't know what the overall impacts are going to be. Those two things missing, I might be affecting people adversely by this type of decisioning putting them out of business. Commissioner Henning. COMMISSIONER HENNING: Susan, when do we have the next LDC cycle? MS. MURRAY: The next LDC cycle will start early this fall and will terminate in the beginning of January of next year. COMMISSIONER HENNING: Okay. I encourage the Board Members to look at their district and see how it would affect the existing businesses that you want to protect. CHAIRMAN COLETTA: I want to protect anybody out there who is not doing any harm. COMMISSIONER HENNING: Okay. How about -- do you want to protect the quality of life for our other residents in their neighborhoods? Page 15 June 19, 2002 CHAIRMAN COLETTA: Sure. But if their quality of life means they have never made a complaint, then their quality of life won't be affected one way or another. COMMISSIONER FIALA: What about, like, that hospital facility over there on Davis Boulevard that just opened? I think it's a DSI or something. I don't know that they back up to anything residential, but if they would have their bloodmobile, whatever, delivery cars for DSI that they would have parked in their back yard, but they don't have a covered structure and it's in a residential neighborhood, then they wouldn't be allowed to park it there unless they had a covered structure; is that correct? COMMISSIONER HENNING: Chairman Coletta, I would like to strike this language and continue it on to the next cycle so that again, we can look into the districts out here and what the effects would be. COMMISSIONER FIALA: Okay. CHAIRMAN COLETTA: Thank you, Commissioner Henning. I think that's an excellent idea. We don't take a motion or vote on that, do we? COMMISSIONER FIALA: Maybe we could enlist the Chamber of Commerce to help us along and have them poll their businesses or something. What do you think? CHAIRMAN COLETTA: I think that's an excellent idea, too. I don't think you are going to find that many that it affects, but even if it's only one -- COMMISSIONER FIALA: Well, probably not, but, I mean, if nobody responds, we know that we made every attempt. CHAIRMAN COLETTA: You are right, Commissioner Fiala. If there isn't anything else on that, can we move on? Page 16 June 19, 2002 MS. MURRAY: Sure. Okay. Section 2.2.16.2 on page 30, you had no comments. Section 2.2.20.2.1 on page 32, the request was to add Smartgrowth category. And if you turn to page 32, you can see the highlighted and underlined language that states that proposed PUD developments shall demonstrate consistency with Smartgrowth principles as adopted in the most recent policy items in Smartgrowth by the American Planning Association. And that policy guide lists many, many criteria in the reasons for Smartgrowth, so that was added, per your request. The next section on 2.2.21.5.1, on page 33, you had no comments. Section 2.2.24.8 on 34, no comments. The Immokalee Mural Section 2.2.28, page 36, no comments. The next, page 38, I need to call your attention to one change. That's the farm market overlay. You had asked -- again, there was some confusion over what the applicant wanted, and let me remind you, again, this is a paid amendment and the applicant is here if you wish to talk to them. You had -- there was some confusion on whether or not SIC codes that were proposed were adequate to cover the applicant's intended use, so we did ensure that the correct SIC codes are in the document. As well, we added-- there was some concern over adjacency to residential. And we did add some requirements here and I apologize, they are not bolded, but there is a separation requirement which is very similar to the same requirement we have for automobile service stations and convenient stores that sell gasoline. And there is a separation requirement from residential -- residentially-zoned land, and that's where I need to make the clarification in Item C. There shall be a minimum distance of 500 feet shortest airline measurement from all residentially-zoned, and I need to strike that or Page 17 June 19,2002 used the land. Our concern was the residentially-zoned land and then we put a maximum lot area of two acres. And again, per your direction, you were concerned that, again reminding you this is only a two-block area, but you were concerned that this use might expand into something very grandiose along that two-block area, so we put a maximum lot area of two acres on there. So we feel with the separation, this is the maximum lot area that we should target to a very limited area in that overlay. CHAIRMAN COLETTA: One of our concerns that we brought up, and I think you may have addressed it, but I'm going to say it out loud so you can hear it again. It was the fact that the overlay area was fairly large to begin with and we were concerned about bulk storage overrunning the whole area, but by having that two acres in there, do we more-or-less limit it to just one.9 MS. MURRAY: Between the separation requirements, between similar operations is one -- one way you are going to stop that from happening. Between the separation distance from residential use and the lot area, there are three rules we put into place that we think will avoid the expansion of that use in that whole area. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: With respect to your elimination of residentially-used land, I presume you are -- you're intending that if the property is zoned something other than residential, but there are homes in the area, that this separation requirement does not apply; is that correct? MS. MURRAY: That's correct. Those would be nonconforming uses. COMMISSIONER COYLE: Let me ask you a question about that. One of the reasons that we, I think, one of the reasons we have the 500-foot separation is for safety. Does it really make much Page 18 June 19, 2002 difference whether it's zoned residential, or is it more important that people are living there? In other words, if-- if people happen to be living there, even though it is nonconforming use, do we have an obligation to ensure the separation for safety purposes? MS. MURRAY: I -- I would concur with that, yes. I think the - - when you have nonconforming uses of land, generally the mindsight is that they are nonconforming, eventually they will go away and conforming uses will take their place, but that does take a period of time in some cases, so -- COMMISSIONER COYLE: I would not like to put someone in danger because they happen to live in an area that's unconforming use. I don't know how the other Commissioners feel about that. CHAIRMAN COLETTA: Well, I'll tell you some of the research I've done on this and what I can remember from the previous time. We are talking about people living -- and in Immokalee, it's not that uncommon, I mean, there has been cases where people take residency under vehicles to save the cost of rent, but I think that becomes a problem under code. It is not a place where residents are permitted to be. And Leo Rogers, the fire marshal of Immokalee has told me he sees no problem with this particular thing. MS. MURRAY: Ed Riley is here from fire as well if you have any questions of him. COMMISSIONER COYLE: Yeah. I would like to determine -- the issue is not whether someone is living illegally in the area. The issue is whether or not they happen to have a residence and it is in an area that's not zoned residential, and that's a fairly frequent occurrence. Do we have an obligation to be concerned about their safety under those cirucumstances? Page 19 June 19, 2002 CHAIRMAN COLETTA: Would you take the podium, sir? MR. RILEY: For the record, Ed Riley, fire district of Collier County. I don't see that it would be an issue in that particular area. There are a number of restrictions for that type of operation no matter where it's located. As Chairman Coletta had mentioned, we have dyking requirements and massive -- even if other structures are on site that are not living structures, we have separation distances that are determined by the size of the tank. So there are a lot of safeguards in the operation on the way it's supposed to function, and there are already codes in effect to handle that. COMMISSIONER COYLE: Why do we have the 500-foot separation for the residentially zoned property? MR. RILEY: I -- we don't have one in the fire code that specifies from residential. It's strictly from other structures. It depends on the size of the tank, so it doesn't differentiate between residential or non-residential. So I don't know why the 500 feet is specifically in here. I think it was to address the concern that the Board had of what the code was. MS. MURRAY: fire codes or anything. Yeah. It really wasn't a safety in terms of any It was really just to kind of prevent proliferation of these kinds of lots. CHAIRMAN COLETTA: Any other questions? MS. MURRAY: Okay. Section 2.3.5, which is on page 41, automobile parking in conjunction of residential structures. I really regret having to tell you this, but there was an advertising error that we did not catch until after the first public hearing, and as such, this was not advertised properly within the entire title of this ordinance, so we will bring this back over the summer during your special cycle. Page 20 June 19, 2002 But, again, this ordinance is pretty much in effect already. This really was just a rewrite to simplify the language. The rewrite we had proposed was not substantially different from what is in effect now, so the -- the existing language will remain in effect until we can come back and advertise it properly. COMMISSIONER HENNING: One question on that. How are we going to enforce the -- the comer lots and the two front yard issues in the interim? MS. MURRAY: Well, the ordinance reads as stands, and the point you brought up last time was, I think the way the ordinance was currently worded, if afforded properties with two fronts parking over and above I think what the ordinance was intended to allow. And we did do that analysis and found that to be the case and actually started structuring language to amend that, to reduce that. Unfortunately, due to the advertising error, it was probably the one critical thing that cannot be changed. COMMISSIONER HENNING: Thank you. CHAIRMAN COLETTA: Ms. Student. MS. STUDENT: Mr. Chairman, one of the things we were going to ask the Board for direction on, Ms. Murray and I discussed this, that we don't have to necessarily have another hearing as long as we when we alter the permitted list of prohibited uses, what we would do was take this to a regularly schedule planning commission meeting in July, in your July 30th regularly scheduled meeting. So that would take care of it rather quickly if we receive direction from you tonight to do that. COMMISSIONER CARTER: I say do from that prospective. CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: That's fine with me. CHAIRMAN COLETTA: I think we've got a-- Page 21 June 19, 2002 COMMISSIONER HENNING: Yeah. I'm fine with that. Do we want to -- does that give the Board Members enough time to review the language as far as fleet storage? Does that give the Board Members enough time to take a look at the examples of their district? COMMISSIONER CARTER: I think they are only inquiring to this one singular item. MR. SCHMITT: For the record, Joe Schmitt, administer of community environmental services. What -- we are only referring to this one. The other one we will bring back during our Fall cycle. COMMISSIONER HENNING: Can we bring that -- do I hear that you want to do both of those? Is that what you are saying? MS. STUDENT: There may be a legal concern with that because it appears to be connected to the list of permitted conditional uses, and we have to have the two night meetings, and with the summer schedule, we wouldn't be able to do that, so -- COMMISSIONER HENNING: Thank you. MS. MURRAY: The next section, 2.4.4.11.8 on page 41, you had no comments. The next section, 2.6.9.1 and two, about municipal wells, you had no comments, but I believe Joe would like to put some comments on the record. MR. SCHMITT: Yes. For the record, this -- this issue came up during the planning commission. And one of the issues was -- frankly, was the -- concerning bypassing the conditional use process. When you're talking about facilities like lift stations or those type of activities -- and we made a commitment during the planning commission to do the proper landscaping. We would also -- we talked about doing the siting improvement or site development plan. I think where I would like direction from the Board is -- that was a recommendation of the Board. What does the Page 22 June 19,2002 Board desire? And understand we are going to be good neighbors and our intent is to be a good neighbor in this process. But rather than spend a lot of money and staff time doing the site development plan, what we really are talking about is -- is landscaping these facilities properly to ensure that they are buffered properly. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: You know, we have to be really sensitive about the tax payers money. MR. SCHMITT: Yes. COMMISSIONER HENNING: Because that's really what we are talking about. MR. SCHMITT: Yes. COMMISSIONER HENNING: That's what I'm concerned about. I know that Tom Woodus and Mr. Delaney are going to be very senstitive about these issues. Comments from the Board.'? CHAIRMAN COLETTA: Commissioner Carter. COMMISSIONER CARTER: The last meeting that item was on, it said agenda and I pulled it. And they deferred -- it's exactly the same point that you pointed out, Commissioner Henning. I saw a situation where the county would be spending a lot of money over a period of time. It's like a little here and a little there, but it ends up being a lot of bucks over time. And the utilities department, as Mr. Schmitt outlined, are accountable for making sure they are good neighbors, and if that did not necessitate taking that permit-driven process, but one that is -- I'm going to say, good common sense, but we don't have to pay for tax payer dollars where there should be an administrative function. MR. SCHMITT: Well, we -- we have the administrative function. Our commitment was -- and I'll let Mr. Woodus elaborate Page 23 June 19,2002 since he is up here, but our committent to lift stations or pump stations is to make sure they are buffered properly. And like I said, the Planning Commission, as you well know, all they can do is recommend. They are recommending that we basically do a site development plan for each of these. I think that was a bit overboard. Our intent is primarily to ensure that we were good neighbors and they are buffered properly and that when we talk about the tax payers dollars, we spend it towards the proper landscaping and not the effort of going through an approval of the site development plan. MR. WIDES: Commissioners, for the record, Tom Wides. I think Mr. Schmitt has said it very well. We do have -- we do have a $7500 SDP that we have already committed too, so we will have to bring that back to you. We already had the work done on that one, but we would like to have the option as we go forward to do as we have done in the past, which is, in fact, landscape these facilities adequately, and that is what, in fact, we agreed to. CHAIRMAN COLETTA: Is everyone in agreement on that? COMMISSIONER CARTER: Dibble the ducks by ducks. MR. WIDES: Commissioners, thank you. CHAIRMAN COLETTA: You have such an eloquent way of putting it, Commissioner Carter. MS. MURRAY: The next section, 2.6.35.7, Alligator Alley Cormnunication towers, you had no comments. The next section, 2.7.2.3.4, and working off the top of page five of your summary sheet. I don't mean to be going so fast. Your request was to allow the planning commission members to determine the necessity of a second meeting, and again, this was their meeting rather than the Board of County Commissioners, and so we went ahead and made that change. Page 24 June 19,2002 The next section, 2.7.3.4 on page 49, this has to do with PUD sunsetting and we are going to need your assistance on this. And I'm going to be really candid with you, there was still a whole lot of confusion after we left the hearing as to what your direction was. And I'm going to tell you how we structured it and I hope you are going to tell me if it's right or wrong. But this has to do with PUD sunsettings and if you recall, we have some PUD's, the older PUD's that have a five-year sunsetting provision, and we have the newer PUD's that were most recently adopted with a three-year sunsetting provision. And the way we understood the direction, from you, the way we understood was that, number one, if, in the event of a moratorium or other action of government that prevents the approval of a final development order, of any final development order, so that means obviously a site development plan or a building permit, once you have an established PUD, that moratorium or action of government that's preventing the approval of that final development not be counted toward the sunsetting provision, for both the three and five- year PUD's. Now, there was some language added in there. Bruce Anderson- - I believe he put it on the record at the time, but he did follow up with me later, suggesting -- and you will see it there highlighted, and this is at the bottom of page 50. If, in the event of a moratorium or a litigation challenging the development or other action of government, so that was an addition from the last time we spoke about this issue. That's one piece of the puzzle and I see five nods, so I assume it's -- CHAIRMAN COLETTA: I don't think you have got nods all the way through yet. Tell me, Commissioner Coyle or Commissioner Henning. Page 25 June 19,2002 COMMISSIONER COYLE: Just a remark concerning perhaps a typographic error on page 50, paragraph-- numbered paragraph one, fourth sentence down, subsequent action on the Board of, I think on and of are reversed. It should say subsequent action of the Board on, so -- MS. MURRAY: Thank you. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: The last paragraph on page 50. You know, I can agree to if it's due to county government, that's fine. But I don't think that we should carry the burden for every -- every type of litigation, you know, federal or state. You know -- CHAIRMAN COLETTA: That's action of government. COMMISSIONER HENNING: Right. CHAIRMAN COLETTA: We are talking about-- explain the last part that Bruce Anderson was trying to add to this. MS. MURRAY: Bruce wanted to add the part that's underlined and bolded, if, in the event of a moratorium or litigation challenging the development or other action of government, so his addition was or litigation-- CHAIRMAN COLETTA: Well, litigation could be anyone challenging it for any reason. So in other words, if someone -- let me ask you this hypothetical question: I got a development. All of a sudden I realize that because of money restraints, I can't go on. I can have another element of my business sue me and put it into court in such a way that it will tie it up for awhile; is that correct? that possible? MS. MURRAY: The way this is structured, I would assume that. to be honest with you. Is CHAIRMAN COLETTA: I'm not all that comfortable with that How do you feel? Page 26 June 19, 2002 COMMISSIONER FIALA: I'm not either. I'm thinking that before we have made a decision, somebody is suing us for that desicion and now, all of a sudden, they get the benefit of this moratorium because they are suing us. Is that our-- MS. MURRAY: That's correct. COMMISSIONER FIALA: I don't want to put that. CHAIRMAN COLETTA: Commissioner Carter, any comment? COMMISSIONER CARTER: I think I could arge on both sides with my great legal expertise. But I am troubled by that where civil litigations could be as a result of issues I don't think are directly attributed to what we are trying to do in terms of PUD reviews and slow that down. I can see government. I could see situations where a litigation was brought against what was going on there by another entity. That -- that is outside of the control of the people who are trying to develop it. I mean, they didn't ask for this litigation. When somebody said you are destroying the red-headed, you know, nimble bee, and all of a sudden, there is litigation and you say, "Wait a minute. I didn't know there was any around there." Well, somebody says, "You know, I also see pink elephants in the morning so I know they are out there." Now, that sounds factitious, but there are groups that can bring that kind of litigation and stop projects and that concerns me, and I don't know how to work through that language, one, to protect the concerns of my fellow commissions, which I share, and at the same time, maybe the word is frivolous if one could define that. They would have to go to legal counsel for frivolous lawsuits, frivolous litigation. Then, I'm a little more comfortable, because frivolous litigation is not where I want to be. Page 27 June 19, 2002 MS. MURRAY: I don't know if the county attorney's office has any comments. COMMISSIONER CARTER: Yeah. Is there a way to structure that so -- a bona fide delay. I can accept that, but if it is a frivolous litigation suit, then I don't think that is in the control of how it began because, we, in government, at that point, representing the people were very comfortable where that process was going. COMMISSIONER FIALA: May I ask another question? CHAIRMAN COLETTA: Of course, Commissioner Fiala. COMMISSIONER FIALA: Okay. So bona fide would probably be in the eye of the beholder anyway, but the question I want to ask is, so something had been approved originally by another commission, we come on board, constituents say, you ought to take another look at this. This isn't right. We go back, take and look at it and we reverse that decision. Okay. Now, we get sued, but we -- we wholeheartedly believe in what we have done. Now, will that lawsuit -- does that then allow them to keep this PUD while they sue us? MR. MURRAY: They way you described it, yes. If it's -- if it's something that prevents the approval of a final development order related to the project, then the answer would be yes. COMMISSIONER FIALA: So there is no incentive not to sue us, right? MR. SCHMITT: If, in fact, they wanted to delay any work on the PUD, that would be a -- COMMISSIONER FIALA: Great incentive. MR. SCHMITT: -- great incentive-- COMMISSIONER FIALA: Right. MR. SCHMITT: -- to initiate some kind of lawsuit. COMMISSIONER FIALA: Right. Page 28 June 19,2002 MR. SCHMITT: So, yes. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: I -- I think the thing we were trying to do is -- is to be fair, but when somebody comes before us with a PUD, it's something they are going to invest a lot of money into. They -- they might very well, and certainly in most cases, do try to secure financing in order to do this sort of thing, and they have investors involved. And -- and I think what we were trying to do is shorten the review time but still be fair, and we heard testimony both from staff and other people that, in many cases, one cannot even go through the permitting in three years. Now, why would we give someone a three-year review process knowing they can't get the permits and then close the door in three years without giving them a chance to do it? That's -- that's one thing. The other situation is that we cannot -- no one can predict whether there is going to be a lawsuit against that developer. And our objective was, if the developer wasn't making a good faith effort to proceed, it certainly shouldn't count during that period and we certainly should have a chance to reconsider it. But if-- if the developer has tried to make a good faith effort to proceed and -- and they have been prohibited from doing so by actions of the government, that is failure -- failure to issue permits in time or a moratorium or some third party comes in and sues the developer, or in some other way holds up the development process, why would we want to hold those people responsible for that? Page 29 June 19, 2002 Why would we want to cause them substantial financial harm because some third party who wasn't involved has lodged a lawsuit against them? COMMISSIONER FIALA: I think you are talking about an upperend -- a really responsible developer. I think we have some of the other ones where -- where they would and have used any little loophole they can to either hold our feet to the fire or in some cases, cheat somebody out of something. I'm -- I'm thinking of some in my head right now. I think that I would like to strike this portion, this portion about litigation. I wouldn't mind handling it on a case-by-case basis, but I -- I think it might be an advantage to people who we don't want it to be an advantage to. MR. SCHMITT: Well, I-- CHAIRMAN COLETTA: Can we go to Ms. Student for just one second? She may have an answer for us. MS. STUDENT: I was going to bring up the point, in a reasoning situation, what usually happens if the developer gets denied, he might sue the county because you denied them, but there is no PUD for him to extend anyway because he got denied. If he got approved, he's probably not going to sue the county, because PUD's are consensual in nature in the ideal world. He is agreeing to, you know, everybody gets together and agrees. The only scenario, and I don't believe I have seen it in my tenure here, is if he is approved and if something he feels to be an unreasonable thing he has in the PUD, then he might sue over that. That's the only -- that -- that portion of the PUD he might try to do, but that's not very likely that that would happen. Otherwise, if he's approved, there could be suits by neighbors or environmental groups, and then there is the other situation where you might have a Page 30 June 19, 2002 declaratory action coupled with an injunction where an environmental group or neighboring property group might have a problem with some of the language of what the document means. They would sue to end any further development until it's ironed out as to what the language means because they think it means one thing. It may be injurious to them or whatever. So those are the scenarios that I can see that would happen in the PUD situation. And the only one -- I don't see somebody just deliberately suing to get some time, additional time in the PUD because lawsuits are very costly, and, I mean, they might. But lawsuits are very costly, so the only scenario that, as I said, if they didn't like one of the requirements placed as a condition under PUD and they sued on that. If they get denied and then sue us, we don't have a PUD to extend. COMMISSIONER COYLE: But I -- I think the confusion is this, and I think if-- if I'm correct in stating that, we can solve it really quickly, that this is not talking about a suit that a petitioner or a PUD holder files. It is talking about a suit filed by a third party, not the petitioner or the PUD holder, but some third party who wishes to intervene in the process. So if-- if that's the concern, and-- and I understand that if a-- if a PUD holder wishes to sue us, that should not be reason for delaying or extending the sunsetting process, but a third party litigation over which neither of us have any control, should not cause a sunset process. COMMISSIONER CARTER: The third party litigation, to me, I think, answers that question. Yeah. If we just insert third party, we would be okay. MS. STUDENT: We can say litigation brought by third party or third party is challenging a development. Page 31 June 19, 2002 COMMISSIONER FIALA: I'm thinking of one in particular where the residents were -- had already -- many residents had bought into a PUD on Davis Boulevard. Their developer only built a portion of their clubhouse, a portion of their pool, a portion of the amenities, stopped entirely. And these neighbors had to actually sue to get the rest of their development going. By this provision, we would give this fellow a bonus, wouldn't we? MS. STUDENT: No. I don't know, because I don't think that would be challenging. We might want to put the word challenge on the development order in there because challenging the development is a little broader. But I think in that case the owners might have some contratual basis or even, you know, outside of the zoning and land use process in suing that developer. So if we say third party litigation challenging a development order that limits the type of litigation in the process. COMMISSIONER COYLE: Yeah. And not only that, but had - - had we had this provision at the time that happened, we would have left the residents with virtually no recourse, because what would have happened is the PUD would have sunset because the time limit was reached. They had their suit, but the builder couldn't proceed with the PUD because we sunsetted the provision. So then they have no recourse at all. They could not require that the builder proceed under the PUD. CHAIRMAN COLETTA: Okay. Hold off just a second. MS. MURRAY: I -- I just want to make sure you understand what happens when a PUD sunsets. It does not expire. It does not go away. It does not change or be rezoned to something else. Page 32 June 19, 2002 A sunsetting PUD when -- when the time is tolled, it takes staff action to bring that PUD before you for consideration and at the present point in time, you have three options. You can opt to extend the PUD for up to two years. You can direct staff to initiate a rezoning, or you can direct the applicant to submit an amendment. So you will always have those -- well, you will have those options, unless you decide to amend the code otherwise, and the applicant obviously would be before you explaining why they probably needed an extension unless they don't mind getting their PUD amended. CHAIRMAN COLETTA: Let me help get this process along here. I agree with Donna. I would like to see this struck from the record. What we we can do is separate this if we want to keep it all together and vote on it at the end. COMMISSIONER CARTER: Well, if you are going to separate it out, Commissioner, if I'm understanding you, if you want to vote on it separately at the end, my question would be, I really don't understand why you would want to deny --- CHAIRMAN COLETTA: Good question, Commissioner Carter. I'm -- I'm opposed to that as the consortium of that language. Commissioner Fiala, I believe you still are? COMMISSIONER FIALA: Yes. And, you know, I guess what really bothered me was I wish Bruce would have talked to us about inserting that because we were the ones talking to -- planning to insert these things. COMMISSIONER CARTER: He's here. COMMISSIONER FIALA: Yeah. But didn't you say he asked you to insert this? Page 33 June 19, 2002 MS. MURRAY: I just don't recall. I thought it was brought up at the meeting and then he did contact me after the meeting. COMMISSIONER COYLE: No. It was brought up at the meeting. As a matter a fact, I thought it was submitted in writing as a recommendation. I'm not sure, but I may be wrong. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: Did Mr. Anderson pay his $15007 MS. MURRAY: No. This was at your direction. He's just -- a comment toward -- CHAIRMAN COLETTA: I would like to move along on this in one direction or the other. What is the pleasure of the commissioners here? COMMISSIONER COYLE: I recommend we keep it as it is, but put the third party litigation here. It addresses Commissioner Fiala's concern. COMMISSIONER CARTER: I would add the word order, development order as recommended by counsel and that, to me, clarifies the language. CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: Well, I don't feel comfortable with that inserted there, but that's my opinion. CHAIRMAN COLETTA: I still have a serious problem with it. I would like for it to be on the record as being in opposition to this insertion. MS. MURRAY: There is another part of this I need to discuss with you to get your clarification on as well, so if you are ready to leave that issue, I'll go to the next one. CHAIRMAN COLETTA: Please, go ahead. We'll come back to that. Page 34 June 19, 2002 MS. MURRAY: Okay. The part we were unclear about was, if you remember, and this again, goes back to your workshop when we discussed the three-year and five-year PUD's and the tools you had in your tool box to address PUD's when they have sunsetted. Again, sunsetting does not mean they go away. It just is a point in time in which the Board is required by the code to take further action. And you have three choices with respect to the PUD's. The first choice is to require the owner to submit an amended PUD. The second choice is to give them an extension of up to two years, and the third choice is to direct staff to initiate proceedings to rezone. What we thought we heard -- what we thought we heard you say was that for five-year PUD's, you wanted to eliminate the option to extend them, and that is the way it's drafted here. If that is incorrect, if you would please let me know, and I will insert the right language. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: I think that is incorrect, but whether or not the rest of the Board agrees with me is a different question. But I would say that your description of restrictions of that clearly on -- on the summary sheet, I -- I think your -- your description of our decision on the first meeting on 5/29/02 is absolutely right. It does not differentiate between the three and five-year provisions and -- and I think what we said we wanted to do is -- is not deprive ourselves of an option. I -- I thought that's what we decided, but -- but once again, there -- there might be disagreement on the Board. MR. SCHMITT: Mr. Chairman, just to get us to kind of where we got here, we, in the workshop and then subsequently in some of Page 35 June 19, 2002 the guidance, initially, what we thought you wanted was us to give the five-year PUD's before you so that, in fact, it gave you an opportunity to amend to require newer LDC definitions to go into new PUD's and that -- that was the vehicle to do it. Once they -- they reached -- the language that was added is the language that gave the applicant or the developer in the event of the delay, through either government action and, of course, what was written here is litigation, gave the -- does not count. So therefore, that was the governmental action they would not count towards their calendar ticking down on the PUD, and that's the way this is written right now. If you read on page 50, and it says that in the event of a moratorium, a person may take further action with the government that prevents any approval of any final development order that the -- the duration of a suspension of the approval shall that be counted against the three-year sunsets. So for all intensive purposes, what that language that was written does is give them time not to count them, which I think met, Commissioner Coyle, your objective of not counting governmental delay towards their lack of being able to commit to their -- their obligation under the PUD definition, so that's how we kind of got where we are. We have the tool that gets us that PUD before you and we also have the language that gives -- gives the developer the benefit of the doubt for not having it count against him, if, in fact, he is tied up through the permitting process or some other sort of governmental approval process. So that -- that's the way it's written out. I think that's what we wanted. Now, if that's incorrect, I guess we really need some clarification because that's -- that -- the intent was to try to get the five-year PUD's to a three-year PUD, both from a standpoint of Page 36 June 19, 2002 amending to update based on the LDC changes, but also to get them into that three-year cycle, excluding those that were delayed for governmental things. CHAIRMAN COLETTA: I'm sorry, Commissioner Coyle, but I have to go in order. COMMISSIONER COYLE: Okay. CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: Thank you very much. Yes. That's exactly what we said. At that meeting, I -- I made the suggestion that this is one opportunity we had to -- to reign in some of this rapid growth, get a better hold on it, and readdress all these old PUD's. Now, there are two that were out there that were brought to us with really legitimate reasons why they haven't been able to. We have it and we could address them, but at the same time, it allows us to tweak some of those antiquated provisions that were included in a PUD that was 20 years old. And this is exactly what we've pledged to do and -- and this is -- everything you said I agree with. That's what I believe. CHAIRMAN COLETTA: Commissioner Coyle, and then I've got some comments. COMMISSIONER COYLE' I -- I agree with that position for those very old PUD's, but right now what we are saying is that a PUD approved in 1997 is -- is going to expire even though they might not have been able to proceed because of a failure of government to issue permits or because the third party lost it. COMMISSIONER FIALA: I thought we addressed them. CHAIRMAN COLETTA: Well, that's what he's saying. COMMISSIONER COYLE: And so if you don't provide some options, then -- then you're simply not being fair and-- and people Page 37 June 19, 2002 have spent a lot of money, a lot of time in putting these things together. They've gotten loans. They have put investments together and now you are going to say because some third party stepped in and sued you and held you up for a couple of years, I'm going to cause you to go through this whole process again. You -- you have not given yourself an option otherwise to -- to even extend it. You've locked yourself in a situation where it's just going to sunset, and then they are going to have to come in with a revised PUD and-- CHAIRMAN COLETTA: Let me say -- tell you the way I see it. Tell me if I'm wrong. One, what we are saying is that in the event of a moratorium or other governmental action, then we won't count that time against them, number one; that's correct. Number two, if anything else prevails and that's about ready to sunset, they come before us and ask if we can call it again. If there are other mitigating circumstances that we can't quite cover that apply, we can do that at that point in time when they come before us; correct? COMMISSIONER COYLE: No. You have removed your opportunity to extend the PUD under the five-year. That's exactly my point. You have taken away your option to make any decisions based upon reasonable circumstances. Now, I would suggest you do one of two things, either retain your option to review it and extend it if you think it's the proper thing to do, or secondly, give someone an exemption based upon a moratorium, litigation by a third party or other action of government. CHAIRMAN COLETTA: I have no problem with bringing it back for the Commission to review. I do still have a problem with litigation challenging the developer because of the way that it is. Page 38 June 19, 2002 And no matter how you word it, it's going to have so many holes in it. I trust this commission or future commissioners to be able to make that decision when it comes before them-- COMMISSIONER COYLE: You're -- you're absolutely right. And that's why I say we should put the option in to extend it if we think it's reasonable, which means we make no distinction between three-year and five-year PUD's. CHAIRMAN COLETTA: But you agree on the removal of the, or litigation to do that? COMMISSIONER COYLE: You don't need to if you retain your options to retain-- CHAIRMAN COLETTA: Then I'm with you. COMMISSIONER COYLE: You only need one, either, or, but you don't need both of them. CHAIRMAN COLETTA: Okay. Commissioner Fiala. COMMISSIONER FIALA: So have we just given our right away or-- not right. Let me say this again. I pledged to myself to get a firm grip on development and -- and finally have an opportunity to get a hold of every PUD and readdress it that isn't already in. Yes. There are a couple of circumstances where we need to be more lenient, but I want to get a firm, yet fair grip on this development and I think this is an opportunity for us to do that and we have to take that opportunity. We can't give it away. CHAIRMAN COLETTA: I agree with you, Commissioner Fiala. If I may first and then we'll go right to you, Commissioner Coyle. I do want to bring this to some sort of conclusion pretty quickly. We have a large agenda ahead of us today. I agree with you, Commissioner Fiala. What we are saying is the fact that the right to readdress this by the petitioner is still preserved. Page 39 June 19, 2002 In other words, if they come before us, we can send them packing. Sure, it's going to be a little more work for us, but if they think they have just cause and they want to spend the money to be able to bring this back before us to continue their PUD from sunsetting because they think they have just reason, then we have to hear them. I -- that's basically what I'm understanding that Commissioner Coyle is saying. I think you are basically saying the same thing. COMMISSIONER FIALA: Right. There are a couple out there that we can -- that we just have to -- CHAIRMAN COLETTA: But I don't want it to automatic, where all of a sudden, they get it extended without question every time. In other words, it would mean nothing. COMMISSIONER FIALA: That's right. Then we wouldn't be making any adjustment at all. I think if we add too much leninecy into this thing, then we have no teeth anymore. Then, we go right back to where we were, so what have we accomplished? CHAIRMAN COLETTA: I'm going to let Commissioner Carter say something. I don't want him to lose train of thought. COMMISSIONER CARTER: I -- I -- I really am puzzled, truly puzzled. If the goal is to bring the five years back and review, which I think everybody is in agreement on, they come back and what the timeline is, whether it's three or five, wanted some criteria which says, I'm not going to discriminate because of a moratorium, or there is some other government action, then these people have done everything they possibly could do, but it's outside of their control -- and frankly, it's outside of the Board of County Commission's control. Now, help me with that. What is wrong with that? Any member of the commission. COMMISSIONER FIALA: Nothing. Page 40 June 19, 2002 COMMISSIONER CARTER: Okay. that part, right? CHAIRMAN COLETTA: Right. COMMISSIONER CARTER: Okay. So nothing is wrong with third party litigation challenging the development order. you are uncomfortable with, if I'm understanding. COMMISSIONER FIALA: Right. Right. COMMISSIONER CARTER: Because that -- I have to understand it. Is that what you are uncomfortable with? COMMISSIONER FIALA: Well, that's -- the thing I'm uncomfortable with is when we bring this PUD back, that I think what I wanted to do then is be subject to the new PUD three-year rules. COMMISSIONER CARTER: It can't be if it's a five-year old PUD. COMMISSIONER FIALA: It can be if we make it that way, right? MS. MURRAY: If you amended it to -- MR. SCHMITT: You would have to amend it. MS. MURRAY: You would have to amend it to be subject to those rules, so if you extended it as far as you could extend it, it would remain under the criteria for the five-year unless you directed an amendment. CHAIRMAN COLETTA: We've got some consensus going here. I think Commissioner Carter just said it. You want to say it again, please? COMMISSIONER CARTER: Help me, Commissioner Coyle, because I think I -- I'm not sure I got it and maybe I think in your case, you said you've got it, so help me with that. So the hang up is the That's what Page 41 June 19, 2002 COMMISSIONER COYLE: I'm -- I'm not sure I do but let me try and explain it this way. If-- if you retain your option to grant an extension because of extenuating circumstances, then you have the ability to take a look at this and make a decision if reasonable, good faith efforts were made on the part of the developer to proceed. If they did not proceed, you have options. We have removed our options here. You don't have that option now. So -- in -- in the -- in place of that, we have said, okay, since we don't have any options, here are the circumstances for which your PUD will not be sunsetted. And those options are essentially, if there were circumstances beyond your control, you tried but you couldn't do it because of government or something else, and -- and -- and so I would suggest to you that this latter, the language that exists now is more restricted then keeping your option to review it, because if it comes back to you for review, you want to take a look at it and you're deciding, well, this one looks good and that one looks bad. There is a lot of subjectivity there. If you keep the -- the -- the wording as it currently exists, there's not that much subjectivity whatsoever, and if they don't meet those requirements, it terminates. If-- you have a lot more control in my opinion with respect to getting a five-year PUD to -- to move underway or to sunset if you use the language that is currently existing. There is absolutely no risk to the Board to accept that language. CHAIRMAN COLETTA: Let's go down the line one at at time so we can move on. Let's start with Commissioner Carter. COMMISSIONER CARTER: Now, I -- I've been in agreement with Commissioner Coyle all along on this and the puzzlement for me is -- and I think everybody wants to accomplish the same thing, but I think the legal definition may be causing the confusion and I don't know how to get over that hurdle. Page 42 June 19, 2002 But I'm comfortable with what's in here if it means giving up the one section in there. I can do that in order to get this on the books and have the protection, but let me tell you, I'm not totally confident with that because if you look to the other side of it, we, the government could be exposed. I suppose someone else will have to take that risk. I think this is a ensurance statement, to me. I can give that up myself if we can just get this thing resolved and not lose the opportunity to get this -- CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: The main things I was concerned with is the loopholes we have seen so often. We open things up just a little bit for a few good guys and what happens is other people come in and use these loopholes against us and sue us because of it, so I wanted to tighten this up as much as I could on a case-by-case basis. If somebody was -- through no fault of their own, a moratorium, road, whatever it was, to even get to their PUD, you know, there was no road to open to even get there, it's not their fault. Then we could address something like that, but we are only talking about a couple of them. I think this opens it up to giving too many people too many loopholes. COMMISSIONER CARTER: Well, we probably have -- COMMISSIONER FIALA: Probably. COMMISSIONER CARTER: -- a philosophical difference on that because I operate on the -- that 99 percent of your people out there that are in this business are trying to live by the laws we have created in doing it and doing it appropriately. One percent would cheat their mother if they could and you're not going to stop these kinds ofbehaviours, so that's where I'm trying to get to, without punishing the people who are the 99 percent. If that's too high, pick your number but that's where I am. Page 43 June 19, 2002 Commissioner Carter. MR. SCHMITT: before -- CHAIRMAN COLETTA: Okay. Let me go down the line. Commissioner Henning. COMMISSIONER HENNING: I make a motion that we adopt Section 2.7.3.4 in removing the bold underlined addition on this last - - at the last paragraph, and I also find it consistent with the growth managment plan. CHAIRMAN COLETTA: Okay. We have a motion, from Commissioner Henning. I don't think there is any -- COMMISSIONER CARTER: I'll second it for-- CHAIRMAN COLETTA: Yeah. If anything, we can get it up and if we don't approve it, then we can move onto the next one. So we have a motion from Commissioner Henning and a second from Let's go right down-- We have a public speaker registered for this CHAIRMAN COLETTA: Okay. MR. SCHMITT: -- you vote. I don't know if you want to hear the public speaker. CHAIRMAN COLETTA: Yes, we do. By all means. COMMISSIONER COYLE: It depends on who the public speaker is. MR. SCHMITT: Bruce Anderson. CHAIRMAN COLETTA: Oh, well then. MR. ANDERSON: For the record, my name is Bruce Anderson. I cannot explain it any more clearly then Commissioner Coyle has done. But I want to give you -- sometimes it's hard to -- to understand these concepts unless you have a specific factual situation that you can put your arms around, and I want to give you one. In the last month, the Florida Supreme Court ruled that if a developer gets a zoning approval and somebody challenges it, but he Page 44 June 19, 2002 goes forward and builds anyway while the challenge is pending, the courts can order him to tear down everything he constructed. In Collier County, we have a very specific case where a developer who will come up for PUD sunset review next year, got approval, unanimous approval as I recall, from the County Commission after working closely with the neighbors to achieve a satisfactory PUD. They thought everything was well and fine, and a year, you know, several months later, they -- they started to construct the PUD. And the neighbors filed suit claiming that the county had incorrectly advertised the hearing at which the zoning was approved. The developer is assisting the County Attorney's Office in defending that suit. It's been pending for more than a year. The developer can't go forward, yet you would propose to subject him to PUD sunset review next year when the whole reason that he can't go forward is because the county may have incorrectly advertised the hearing at which it was approved? Where is the fairness in that? CHAIRMAN COLETTA: Bruce, in here it says due to the action of government. That would be an action of government. You would be protected. It's the action of government that caused the -- the misadvertised meeting and we're right back to square one. Am I correct, Bruce, or am I wrong? MR. ANDERSON: I would like to have an opinion on the record from the county attorney to that effect. MS. STUDENT: Well, it depends because I -- I can foresee that if the county prevailed in that lawsuit, then it wasn't an action of government but the guy still got held up. So you can't use that provision. The guy still got held up for the length of time it took to determine whether or not it was an action of government. CHAIRMAN COLETTA: Mr. Schmitt. Page 45 June 19, 2002 MS. SCHMITT: May I make a proposal, Mr. Chairman, that this language, I think what we can do is strike out all the underlined portion on page 50, strike out the underlined portion on 49 and just allow all three options for either five or three-year PUD's. That way the applicant will come back to you, you have the option then to extend, if, in fact, there are mitigating circumstances to warrant that extension. But if there are not, then you would direct the applicant to go back and amend the PUD and that would put that five-year PUD to a three-year PUD and-- and those kind of rules would then apply, But that gives you the three tools out of the tool box that are available for both three-year and five-year PUD's without penalizing a situation that Mr. Anderson is addressing tonight, and I think that may solve the problem. COMMISSIONER HENNING: I amend my motion to reflect that. COMMISSIONER COYLE: And I second it. CHAIRMAN COLETTA: No. Mr. Coyle, we have a second from Commissioner Carter. COMMISSIONER COYLE: Oh, I'm sorry. CHAIRMAN COLETTA: Do you have something, Commissioner Carter? COMMISSIONER CARTER: You say the bold and underlined on page 50? MR. SCHMITT: Yes. And we would eliminate that, we would eliminate the -- the first line on page 49 that is underlined where it's under 2.7.3.4 and just start with, "should the development services go all the way through." That gives you the three options and we are not delineating between a three and a five-year PUD, we are just describing succinctly what your options are. Page 46 June 19, 2002 The applicant will then come before you and state their case and then you make the determination whether or not, one, they can get an extension, two -- COMMISSIONER CARTER: Okay. I got it. I second it. CHAIRMAN COLETTA: We have a motion and we have a -- MR. SCHMITT: The only thing we have to clarify is do you want to strike out that portion or do you want to leave that in the event of a moratorium or other action -- government action -- COMMISSIONER CARTER: I do. I do. It's not in the underlined section. CHAIRMAN COLETTA: Yeah. MR. SCHMITT: That way the -- CHAIRMAN COLETTA: It's spelled right out. stay MS. STUDENT: that way or -- MS. MURRAY: And three years stricken through, does that No. We said that we would remove that. On page 49, we would remove that from that first sentence. COMMISSIONER FIALA: Okay. COMMISSIONER COYLE: And to give the Board some comfort, that is exactly what we said at the last hearing. MR. SCHMITT: Yes. COMMISSIONER COYLE: That is exactly what we proposed at the last hearing and that is exactly what is put on page five of the summary sheet of our observations at that time. We did not differentiate between three and five year, and that's exactly what we said before. MR. SCHMITT: Well, yes. That's what we heard you say, but we had some mixed signals and we really were never comfortable with where -- what the final analysis was. Page 47 June 19, 2002 CHAIRMAN COLETTA: I think we are there. We got a motion and we got a second amended. Mr. Anderson, I'll allow you another minute. Go ahead. MR. ANDERSON: May I ask a clarification question? Ms. Murray said you were going to strike the three year on page 49. Are you still going to strike the three-year reference on page 50? COMMISSIONER CARTER: Yes. CHAIRMAN COLETTA: It's my understanding that we are. COMMISSIONER COYLE: The five-year reference on page 50 at the very end? CHAIRMAN COLETTA: MR. ANDERSON: Okay. The three-year. I'm sorry. MR. SCHMITT: already. MR. ANDERSON: struck. COMMISSIONER COYLE: between three and five-year. Yes. That's -- that would -- that's stricken Okay. I just wanted to make sure that was There is no differentiation MR. SCHMITT: What -- what will happen though, is the staff will -- will track those and then when they come before the Board, the Board will then have the option to do what those three requirements say. CHAIRMAN COLETTA: In a way, we are way ahead of the game because in the past we just let these things continually slide. MR. SCHMITT: Yes, sir. CHAIRMAN COLETTA: Okay. MS. MURRAY: I'm sorry. One more point of clarification. Litigation, did you want to insert brought by third partys and the word development order? CHAIRMAN COLETTA: No. Page 48 June 19, 2002 COMMISSIONER CARTER: No. Anything that was underlined is out. COMMISSIONER FIALA: Does that tighten it up enough where it gives us -- COMMISSIONER CARTER: It does for me. COMMISSIONER COYLE: You'll still get your five-year thing sunsetted. You'll get to that point. CHAIRMAN COLETTA: Any other discussions? All those in favor, indicate by saying aye. THE BOARD: AYE. CHAIRMAN COLETTA: Opposed? The ayes have it five to zero. COMMISSIONER HENNING: I would just like to ask the deputy, if we ever do that again, abuse a subject like that, you shoot US. CHAIRMAN COLETTA: Mr. Schmitt, thank you again for jumping in. If you want to do it a little sooner the next time, that will be fine. MR. SCHMITT: Yes, sir. MS. MURRAY: I can roll through the others very quickly except you do have a public speaker for the last one. That is the remainder of the amendments. And I do have to read these for the record very quickly, 2.8.3.4.1 and 2.8.3.4.2; you had no comments and there were no changes; 3.2.8.3.4, no comments. On the top of page six, regarding fire hydrants, section 3.2.8.4.8, you did have some questions. We didn't make any changes but Ed Riley is here if you still have those questions or maybe in the interim you have had them answered. Page 49 June 19,2002 CHAIRMAN COLETTA: Commissioner Henning does have questions. COMMISSIONER HENNING: I met with Ed Riley and I understand the amendments and know why they are there and I think we should move forward with them. Commissioner Coyle is in the bathroom, so let's move on. MS. MURRAY: Section 3.7.1.10.4, you had no comments, and the last is 3.13.8 and there is a registered public speaker for that item. CHAIRMAN COLETTA: Would you call that speaker up, please? MR. SCHMITT: Don Pickwork. MR. PICKWORK: Good evening, Commissioners. For the record, I'm Don Pickwork. I'm representing the Lely Barefoot Beach Property Owners' Association. I apologize for not addressing this before you at the very last hearing. I was engaged to help them with this last week. And I'm really here to really ask you to give some direction, because I'm here to talk about something that's not in this section, and it goes back to this. As you know, the single family homes at Lely Barefoot Beach are built right along the coastal construction setback line. The residents out there in the course of doing -- doing voluntary reconstruction a year or so ago, have placed narrow strips of sod in front of their residencies, which, you know, is good for asthetics and cleanliness and also for allowing aerial lifts and things like that for servicing the homes. There has been an ongoing concern with code enforcement on this and the solution was to rectify it legislatively by putting some language into the Land Development Code in this cycle which would cure the problem. Page 50 June 19, 2002 That language was removed during the earlier processes before it got to you all, before I had an opportunity to address that. And the residents obviously are concerned right now that with the adoption of this ordinance without that language, that code enforcement will now descend upon them. And we think there is a legislative solution to this. There's no question that these narrow strips of sod are certainly not going to cause an -- an adverse impact on the beach. I mean, plus, the legislation was drafted by your environmental people, and I have also talked to Fred Gore about it. So I guess all I'm really asking for tonight is, I don't -- I don't think, you know, to try to redraft legislation here is not a good idea. You end up with something that just causes trouble later. All I would like is a Board direction to work with us on this so that we can move forward and bring something at the next cycle. I don't think there is a planning inconsistency problem and I know that opinion was expressed, and that's why it was taken out. I read it and I don't think that's the case, but we can address that. And that's all I'm asking for is the opportunity to work through this. CHAIRMAN COLETTA: Mr. Schmitt. MR. SCHMITT: Yes. Can I reply? That -- this language, we -- the staff had taken the liberty to add that language based on the requests to meet the needs of the residents out there at Lely Barefoot Beach. That language was vetted before DESAP twice. It was vetted before the EAC twice. It was vetted before the planning commission. Every one of them voted against it saying there was absolutely no empathy at all towards the situation that the folks had basically created for themselves out there, the situation, so we struck that language from -- from the recommendation. Page 51 June 19, 2002 Now, my -- my only recommendation would be that if the residents want to pursue this and add that again, that they file and apply for an LDC amendment and we'll -- we'll try it again, but the residents can apply this time. But I can tell you right now, it was not successful. We tried -- we tried to reach a compromise all the way through the process. In fact, we were fairly well criticized for trying to reach that compromise and we saw it was going no where. And it went no where in front of all three of those -- those commissions. So the -- the choice is yours. I don't even have the language that was originally there, but basically what we were going to allow are pavers and other nonpervious(sic) type material to be behind the homes and really to understand that was to allow the residents to -- to get in behind their homes and do proper maintenance, but frankly, and -- and brutally honest, the planning commission said they created that problem themselves and they have to deal with it. So that's where we are at. There was frankly a lot of opposition to allow these kind of things beyond the coastal construction setback line. CHAIRMAN COLETTA: Well, I'll -- I'll allow you to comment MR. PICKWORK: If I could, just because I -- I appreciate what he is saying but I'm not sure that's all entirely accurate, nor do I believe it's the whole story as far as they self-created a hardship and I think there is a lot more to that story. We would like the opportunity -- I understand that a number of committees met and didn't like this, but I -- I think the residents of Lely Barefoot Beach deserve the opportunity to present this issue to their elected representatives and -- and have that determination made. Page 52 June 19, 2002 I think there are substantial equities in favor of doing this, and -- and I think that when -- that when the opportunity to present the entire story is given to you, I -- I feel reasonably confident that not withstanding the fact that some people down below didn't like this amendment, you may see this a little bit differently. And I would look for the opportunity for you all to make that decision because I think that's where that decision is supposed to be made. CHAIRMAN COLETTA: Of course, I always sympathize with what needs of the residents are, but in this case, it's gone through the whole process. We are at the end of a process and I suggest that -- my mind thoughts are that you bring it back with our full blessing in the next cycle so that we can take a look at it again. MR. PICKWORK: That's -- that's all we want. CHAIRMAN COLETTA: At this point in time, I'm not about ready to undo the work that everybody else has been behind, so I encourage you to come back next cycle. MR. PICKWORK: I'm not asking to undo any work, just to bring it back the next cycle. That's all we are asking. MR. SCHMITT: And we concur. I think that's something we can bring it back and apply for an amendment. CHAIRMAN COLETTA: Commissioner Fiala and Commissioner Canner next. COMMISSIONER FIALA: Oh, mine is so quick. Fourth line down, page 58, I bet you meant FDEP requirements, just so you don't have to bring it back for a scrivener error. MS. MURRAY: Thank you. Commissioner-- Mr. Chairman, that's all we have. I guess, Marjorie, if you could remind the Board of what they need to do. Page 53 June 19, 2002 MS. STUDENT: Yes. In your -- first off, for the record, this is land code amendments, so only four votes to pass it. As part of the motion, of course, I need the consistency with the comprehensive plan finding. And also, we may need to make some non-substantive changes to catch typos and things like that, so I would like to make that as part of the motion that it's okay to make the non-substantive changes. MS. MURRAY: And I would also like to say for the record, we are excluding the amendment to Section 2.3.5, although it is in your packet. That's just for the record. COMMISSIONER HENNING: And I would include that in my motion. CHAIRMAN COLETTA: We have a motion from Commissioner Henning. COMMISSIONER CARTER: Second. CHAIRMAN COLETTA: Commissioner Carter for the second. Is there any other discussion? COMMISSIONER FIALA: Yes. Fast question. That also excludes the one we are bringing back about the parking? COMMISSIONER HENNING: Correct. MS. MURRAY: Yes, ma'am. That's correct. I didn't clarify that but that was what I said, yes. COMMISSIONER FIALA: Okay. Thank you. CHAIRMAN COLETTA: Any other discussion? All those in favor, indicate by saying aye. THE BOARD: Aye. CHAIRMAN COLETTA: And the ayes have it four to zero. MS. MURRAY: Thank you. CHAIRMAN COLETTA: Commissioner Coyle is absent at this moment in time. Page 54 June 19, 2002 COMMISSIONER CARTER: Mr. Chairman, just before we close this thing, I understand Mr. Pickwork's request for the Lely Barefoot Beach residents. The last' memorandum I read was they were looking, and if they bring this back, for consideration of putting 15 feet of grass, no other materials, in front of these condos to accomplish the objective to be able to -- to work on them. So I think that's where they are and I think that's a proper process to bring it back to the committees, and perhaps, if they limit it to one item in one area, they may have different receptivity in terms of that. CHAIRMAN COLETTA: Before we go to the next meeting, I'm going to adjourn this meeting and we are going to take a ten- minute break. (Whereupon, the hearing was adjourned.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair- Time 6:45 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEAL/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL JIM COLETTA, CHAIRMAN ATTEST: Page 55 June 19,2002 DWIGHT~.E. BROCK, CLERK 'l~ese minutes approved by the Board on ~ as presented ~ or as co~ected TRANSCRIPT PREPARED BY: Naples Court Reporting, Inc. Page 56