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CCPC Minutes 01/19/2017 January 19,2017 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples,Florida,January 19,2017 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 9:00 a.m., in REGULAR SESSION in Building"F"of the Government Complex,East Naples,Florida,with the following members present: CHAIRMAN: Mark Strain Stan Chrzanowski Diane Ebert Karen Homiak Joe Schmitt Patrick Dearborn ALSO PRESENT: Mike Bosi,Planning and Zoning Manager Fred Reischl,Principal Planner Jeffrey A.Klatzkow,County Attorney Heidi Ashton-Cicko,Managing Assistant County Attorney Tom Eastman,School District Representative Page 1 of 46 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 9:00 A.M., JANUARY 19, 2017, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, THIRD FLOOR, 3299 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. 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 SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES 6. BCC REPORT-RECAPS 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA 9. ADVERTISED PUBLIC HEARINGS: A. VA-PL20160001181: A Resolution of the Board of Zoning Appeals of Collier County, Florida, relating to Petition Number VA-PL20160001181, for a Variance from Section 4.02.03.a, Table 4 of the Land Development Code to reduce the minimum rear yard accessory structure setback line from 20 feet to 6.55 feet for a swimming pool, spa, pool deck and stairs on a waterfront lot within the residential single-family (RSF-3) zoning district on property located at 342 Trade Winds Avenue, hereinafter described in Collier County,Florida. [Coordinator:Fred Reischl,AICP,Principal Planner] B. An Ordinance of the Board of County Commissioners of Collier County, Florida, amending Ordinance Number 04-41,as amended,the Collier County Land Development Code,which includes the comprehensive land 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: Chapter Two—Zoning Districts and Uses, including section 2.03.06 Planned Unit Development Districts, section 2.03.09 Open Space Zoning Districts; Chapter Three— Resource Protection, including section 3.05.07 Preservation Standards; Chapter Five — Supplemental Standards, adding section 5.05.15 Conversion of Golf Courses; Chapter Six— Infrastructure Improvements and Adequate Public Facilities Requirements, including section 6.05.01 Water Management Requirements, adding section 6.05.03 Stormwater Plans for Single-Family Dwelling Units, Two-Family Dwelling Units, and Duplexes; Chapter Ten — Application, Review, and Decision-Making Procedures, including section 10.03.06 Public Notice and Required Hearings for Land Use Petitions; Section Four, Conflict and Severability; Section Five, Inclusion in the Collier County Land Development Code; and Section Six, Effective Date. [Coordinator: Caroline Cilek, AICP, Manager, LDC, Development Review] (The CCPC members have been provided copies; however, the LDC Amendments can be accessed here:www.colliergov.net'publicmtgs.) 10. NEW BUSINESS 11. OLD BUSINESS 12. PUBLIC COMMENT 13. ADJORN CCPC Agenda/Ray Bellows/jmp January 19,2017 PROCEEDINGS MR.BOSI: Chair? CHAIRMAN STRAIN: Good morning,everyone.Welcome to the Thursday,January 19th meeting of the Collier County Planning Commission. If everybody will please rise for Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay. Roll call by our secretary,please. COMMISSIONER EBERT: Yes. Good morning. Mr.Eastman? MR. EASTMAN: Here. COMMISSIONER EBERT: Mr.Chrzanowski? COMMISSIONER CHRZANOWSKI: Here. COMMISSIONER EBERT: Ms.Ebert is here. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER EBERT: Ms.Homiak? COMMISSIONER HOMIAK: Here. COMMISSIONER EBERT: Mr. Schmitt? COMMISSIONER SCHMITT: Present. COMMISSIONER EBERT: And,Mr.Dearborn? COMMISSIONER DEARBORN: Here. COMMISSIONER EBERT: Thank you. CHAIRMAN STRAIN: Thank you. And we have two advertised public hearings today. The first one is going to be a variance on a property at 342 Tradewinds Avenue,and the second one is a review of our Collier County Land Development Code amendments. It will be the second or third reading on some of these for the Planning Commission. It will not be the final. There will be another review. We'll have maybe our final on the 30th in the evening. And with that,we'll move into the Planning Commission absences. We have two upcoming meetings: 5:05 January 30th is the LDC review that I just mentioned. Does anybody know if they're not going to make it on January 30th in the evening in this room? (No response.) CHAIRMAN STRAIN: Okay. And the next regular meeting is February 2nd. Same time,same place,the same place as today. Everybody? Okay. COMMISSIONER SCHMITT: That one,Mark, I may miss that one,but I'm not sure. What's the agenda look like for that one? MR.BOSI: I believe there's only one item on for the 2nd. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHMITT: I'll let you guys know,and then you can let the rest of the commissioners know if,in fact,I'm going to be missing from that one. It could go up go in the air. CHAIRMAN STRAIN: Thank you. COMMISSIONER SCHMITT: But I'll know by that night. I'll be here for that Monday meeting. CHAIRMAN STRAIN: Okay. Well,we'll still have a quorum, so we're good. Thank you. That takes us to approval of minutes. There have been none electronically provided,so we'll skip that. We'll go to the BCC report and recaps. And Ray's not here,but,Mike,you can go ahead. MR.BOSI: Thank you,Chair. Mike Bosi,Planning and Zoning Director. At the hearing on the 10th,the Collier County Resource Recovery Business Park IPUD was approved unanimously. The Naples Heritage PUD amendment to add the 5-acre tennis facility was defeated by a 3-2 vote,and further clarification was provided to staff for the specifics of a moratorium that was going--that is being considered for the East Trail related to self-storage facilities,car washes,pawnshops, and-- Page 2 of 46 January 19,2017 CHAIRMAN STRAIN: Gas station. MR.BOSI: --gas stations. Thank you. And so with the further direction,we are bringing back an ordinance on the 14th of February for the Board to consider whether they want to take final action upon that moratorium. CHAIRMAN STRAIN: Thank you,Mike. That brings us to the chairman's report,and I have just one thing. Good morning,Nora Frances. I hope you're watching today. She's a friend of the Planning Commission's. Happens to be related to Stan. COMMISSIONER CHRZANOWSKI: Only by marriage. CHAIRMAN STRAIN: The consent agenda,we have none,so we'll move directly into our advertised public hearings. ***The first one up is Item 9A. It's VA-PL20160001181,and it's a variance request for a property located at 342 Tradewinds Avenue. All those wishing to testify on behalf of this item,please rise to be sworn in by the court reporter. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN STRAIN: Thank you. We'll start with disclosures on the Planning Commission from Tom. MR.EASTMAN: None. CHAIRMAN STRAIN: Stan? COMMISSIONER CHRZANOWSKI: Strangely,none. CHAIRMAN STRAIN: Diane? COMMISSIONER EBERT: I talked with Fred yesterday,and emails and correspondence with a neighbor. CHAIRMAN STRAIN: You've had correspondence with a neighbor,or they just sent you an email? COMMISSIONER EBERT: Well,yeah,they just sent me. CHAIRMAN STRAIN: Okay. That's all. I just wanted to make sure. We've all got an email or two on this,and so I think mine are probably similar to everybody else's. I did talk with the applicant when this first came to my other office,and she came in and asked for some clarification of the process. We went over that,and I think we've talked once since then. And I also talked to Mr.Patrick--Pat Neale who represents some residents who are not in favor of this application. And then,of course,staff. Diane? COMMISSIONER HOMIAK: Karen. CHAIRMAN STRAIN: Karen,I'm sorry. Diane's over here. COMMISSIONER HOMIAK: Nothing. Just the additional email yesterday. CHAIRMAN STRAIN: Joe? COMMISSIONER SCHMITT: None. CHAIRMAN STRAIN: Pat? COMMISSIONER DEARBORN: None. CHAIRMAN STRAIN: Okay. With that,we'll move right into the presentation by the applicant to start out. MR. SHAPIRO: I'm Marc Shapiro representing the applicant. CHAIRMAN STRAIN: If you have items that you want to use the overhead for--I don't think you've appeared before us before--that stand over there has a lot more electronic availability for things to show. You might want to use that. MR.SHAPIRO: Yeah,there may be some-- CHAIRMAN STRAIN: And also,our mikes don't pick up unless you're really close to them. And we have a walk-around mike over there if you need to get closer to something else that you're trying to show. MR. SHAPIRO: Okay. Thank you. CHAIRMAN STRAIN: We'll need you to identify yourself and spell your last name for the record, and we'll be good. MR. SHAPIRO: My name is Marc Shapiro. Marc's spelled M-a-r-c; Shapiro,S-h-a-p-i-r-o. Page 3 of 46 January 19,2017 CHAIRMAN STRAIN: Thank you. MR.SHAPIRO: And I'm representing the petitioners in this case for 342 Tradewinds Avenue. CHAIRMAN STRAIN: Everything,by the way,that you show on overhead will have to be--copies of it will have to be left with the court reporter for the record. MR. SHAPIRO: Okay. They're mainly going to be photographs. CHAIRMAN STRAIN: That's great. Thank you. MR.SHAPIRO: Okay. So there was a variance petition that was filed by the builder in this case, Jason Jenks,and then there was a deficiency letter that was issued,and then my office prepared an amended variance,and that variance was actually recommended for approval. And so that was recommended for approval by,I guess,the Growth Management Department. But I want to read a couple things actually from their words. And,you know,it's important to point out,there's three basic things is--one is the variance we're asking for is a very small variance. So it's--and there's a new code that was brought in this area. So this particular property,you couldn't even tell that it doesn't comply with the current variance because there are several houses that are exactly in line. In fact,it doesn't look out of place at all,and you wouldn't know. And,in fact,that comes to my first point is that when the permit was applied for,it was applied for using the setbacks that are currently for the pool right now. Those setbacks were approved. There was many inspections that were done to the property. In each case,during each inspection, it was approved. Nobody even caught that it didn't meet the current code until one of the neighbors,I guess,came and pointed out to the county that it didn't comply with the current code,and it was at that time that my client was informed they had to do a petition for a variance. So my client,who hired the builder,had no idea that it didn't comply with code. In fact,if you'd look at it,there's no way you could even tell that it--because it doesn't stick out. It's something that's completely in line with the rest of the structures that are on both sides of the street or on the canal there. So--and it says here--this is from the report that was issued from the Growth Management--the applicant utilized the erroneously approved setbacks unaware of any violations. So when they applied for the pool permit,the county actually provided the setbacks,and they erroneously provided the setbacks that were the older setbacks that hadn't--rather than the updated ones. So based on those setbacks,my client constructed the pool and poured the slab. And we're talking about approximately two and a half feet. Now,the setbacks,they're about six feet over--instead of a 20-foot setback,they were told they had a 10-foot setback,so they're over the setback,but it's important to note that the height of the pool wall,if it was two-and-a-half feet lower,they could be 10 feet, the setbacks. It's 20-feet setbacks based on the current height. So we're talking two-and-a-half feet. So the two-and-a-half feet does not really affect anyone's view. In fact,we have the neighbor right across the street--in fact,I brought some pictures,which I'll show in a moment,but if anything,the view from the neighbor,their lanai actually sticks out further than my client's pool which doesn't have a lanai on it and never will. Also, if you're looking across,there's boats parked,and the boats that are parked,which are legally parked in front of the seawall,stick out higher than my client's pool does. So it's a very,I would say, negligible impact. In fact,when I looked down the canal,I had to ask,you know,which one--to my client, which one is your house,because you can't tell by looking at it that it sticks out. It's perfectly in line with all of the rest of the houses. We're just talking about two-and-a-half feet up. And a few years ago,when the code was that,you know,that--exactly what they built,so we're not talking about any major impact. Now, it would be a severe economic hardship for my client to have to completely tear down the whole--by the time this was brought to their attention--and,again,it was brought to their attention because, I guess,the neighbor pointed it out to the county--they had already poured the slab. They had already put the whole pool in --where the pool was going to be. That was already in. And they estimate--this is from the builder--and I think it's a very conservative estimate--that to go back and redo this--because they'd have to basically tear out the whole poured concrete pool and start over again--would be,in his words, ' $50,000. And,again,I think that's a very conservative number. But it would be,at minimum,$50,000 to go back and redo this over essentially two-and-a-half feet. Page 4 of 46 January 19,2017 So I'd like to at this time show some photographs. CHAIRMAN STRAIN: Okay. Fred will help you with the overhead;that's the gentlemen right there. You'll have to use the mike,either the walk-around mike or the stationary one. MR.SHAPIRO: All right. So if you can see where my finger is,this is the structure in question. And,actually,this view is where--the people that are here opposing this,this would be their view. So there's two views. There's an open-water view,and then there's down the canal. So if you're looking down the canal,you'll see that this structure is really in line with all the other structures and,in fact,one of the people that's objecting to this,his pool enclosure is the same height and the same setback as my client's because,as I said,this is a new,I guess,updated requirement. And when they--when they put in the permit for the pool,they were erroneously giving the older setback requirements. So it's not like this sticks out at all. It just doesn't comply with the latest setback requirements. Here's another--this is a similar view,just a little bit more close up. And this is a view here--you'll see that this structure here is the structure in question. And the neighbors on actually both sides,if you line up the seawalls,they line up perfectly together. In other words,the setbacks on both sided,the neighbors on either side,are both exactly the same setbacks as my client's,the petitioner's setback. And,again,it's because these were the former setbacks. So this is the picture of the--you can see the open-water view. And,again,the petitioner's structure is right here. So you'll see if you're looking down,the people that are objecting to this,the neighbors that are objecting,they are way down towards this range-- I'm sorry. They're towards this area here. So they're actually--their view is not obstructed of the open water because the petitioner's structure's down here. And if they look down the canal,I don't see,being on this side of the road,how their view could be remotely affected,and if it was affected,it would be affected by the lanai of the house in front of them,and if it is affected at all,the two-and-a-half feet isn't going to make any difference. In fact,as I said,the boat--the boats that are parked in front of the structure actually stick out above the pool enclosure. So if their views are obstructed at all,it's not because of this.In fact--and I think you have this as part of the application,but there's a couple letters. One letter is from an objector who actually canvassed the neighborhood on both sides of the street and tried to get as many people to object as possible, and I think he was successful in maybe getting one other,possibly two others,to object. My client,I believe,has 43 people. Well,I say 43 because that's how many people live there that either didn't care about it or actually signed a petition in her favor or a letter in her favor saying that they didn't believe that her house--they believe that the variance should be granted;that her house doesn't obstruct any view,doesn't stick out,doesn't make it look like it's not conforming with the community. In this picture here you'll see this house right here is the subject house,but the house right before that,the lanai actually would inhibit the view and actually that tree right there would inhibit the view of the objectors that are looking down the canal before my client's pool enclosure would. In fact,from this view, which is--you can't even see the pool. And then, lastly,this picture shows--and I want to point out the house next to it with the lanai. So the objectors would be looking down this way,so they'd actually be seeing that lanai before they would see this pool. So I guess the three points I want to make is that it was not purposefully done. When the builder applied for the permit,they were erroneously given the wrong setbacks;they built the pool using the wrong setbacks;there was four inspections along the way,never once did anyone point out that,oh,this doesn't comply. In fact,it wasn't till the neighbor pointed that out,and that's the reason we're here today. The second point I want to make is that if there's any impact at all on the neighborhood,which I submit there's not because it's perfectly in line with the other houses'setbacks--in fact,if you were to walk that street,you wouldn't even notice that this house was out of conformity. But if there is any impact,it would be very negligible. We're basically talking about two-and-a-half feet. If the seawall were two-and-a-half feet lower,the setback would be correct. Also,if they moved it back approximately, I believe,six feet,then they could have it that height. So we're talking about two-and-a-half Page 5 of 46 January 19,2017 feet,and the economic hardship involved in putting it into compliance would be,at minimum,$50,000. So for those reasons and also the fact that I think if you read the planning board's recommendation, they set things forth very thoroughly on why they would--not the planning board but the--I guess the report from-- CHAIRMAN STRAIN: It's called a staff report. MR. SHAPIRO: --yeah,staff report. They set forth very particularly why they're recommending that the variance be approved. So I would ask that,you know,you all take a look at that,and they lay it out very nicely. And they were also aware of the neighbors that were objecting also when they came to that recommendation. CHAIRMAN STRAIN: Are you finished,Mr. Shapiro? MR. SHAPIRO: Yeah,I am finished. My understanding is there's some neighbors that are right across the way that were also going to testify for the petitioner. CHAIRMAN STRAIN: Let me tell you what the procedure is,because I don't think you've been here before. After you finish your presentation,the Planning Commission will ask questions if they have any. Then from there we'll go to the staff report. After the staff report and staff make verbal recommendations over parts of their report,we ask questions of them. When they finish,we go to public speakers. MR. SHAPIRO: Okay. CHAIRMAN STRAIN: After public speakers,you'll have an opportunity for a 10-minute rebuttal, and then we go into discussion and decision on our part,or recommendation on our part. So that will be the process we'll go through. And since you're finished,and before we go to Planning Commission questions, there are a few things I think I'd like you to answer and clear up so the Planning Commission gets the benefit of those answers before any questions are asked. MR. SHAPIRO: Yes. CHAIRMAN STRAIN: You said the code was exactly what it was when they built this 2.5, two-and-a-half years ago. What did you mean by that? MR.SHAPIRO: Well--and,again,I don't know when the time limit was,but-- CHAIRMAN STRAIN: Time limit--what do you mean by"time limit"? MR.SHAPIRO: When I say two-and-a-half years,I don't know if that's the exact time. CHAIRMAN STRAIN: Probably in terms of closer to a decade or two. This height issue has been in the code very,very early on. The problem is it's very obscure in our code to find it,and it only seems to be applicable to Vanderbilt Beach.Specifically our code says Isle of Capri and Marco Island don't have to have this kind of an application. They go to seven feet,which yours then would have been fine if you were on Isles of Capri or Marco Island. Also-- MR.SHAPIRO: So I misspoke about the two-and-a-half feet. I just was kind of making that up as an example. CHAIRMAN STRAIN: Well,you can't make things up. We've got to deal with the code in fact. And if you're going to reference something of the code and it also involves the staff error,we've definitely got to weigh in on that and understand it. You had said that the setbacks were erroneously given to your client. Have you got something that says for your client to design to those setbacks? MR. SHAPIRO: I believe there is. The builder is here,and he could probably better answer that than I could. CHAIRMAN STRAIN: Well,that will be helpful. If he's here,then we'll--see,you ought to call him as someone--a witness on your behalf to begin with before we go to the staff report. So if he's here, we're definitely going to—we'll ask questions of him after the Planning Commission gets finished with you. MR. SHAPIRO: Okay. CHAIRMAN STRAIN: Those couple things,though,are important as to how this happened,the time frame. The code has not changed. The code is just obscure and hard to read in this particular issue,I'll grant you that. It certainly isn't clear. And as far as the staff goes,yes,a staff member certainly made an error in approving this the way it Page 6 of 46 January 19,2017 came through. But I don't know if that was a result of the staff telling you to do it that way or your design professionals decided to do it that way,and that will be something we'll find out shortly. With those clarifications,and before I get into any more of my questions,I'll turn to the Planning Commission for any questions they may have to start with. Anybody? Stan? COMMISSIONER CHRZANOWSKI: Just,those shots you took,those were taken with a drone,I assume? MR. SHAPIRO: Yes. COMMISSIONER CHRZANOWSKI: I'm glad you did that. It showed it very well. I looked at Google Earth 3D. And from what I could tell on Google Earth 3D,I couldn't see where there was a tremendous difference from this to the other,the older to the new,but those shots showed it pretty good. I was going to ask--you probably don't know. I guess a lot of my other questions are going to be to staff. MR. SHAPIRO: Okay. CHAIRMAN STRAIN: Okay. Anybody else? Joe? COMMISSIONER SCHMITT: I have several questions regarding the process,but I'm going to defer and wait to talk to Mr.Reischl,because I need to--but the question I do have for you,Marc,did you--or do you have in your documents--typically when you go in for a building permit,the first thing they do is lay out the site plan,and then on that site plan,the reviewer in the Building Department,is my recollection,would initial off each of the setback requirements and put their initials on--actually right on the document. Do you--is that the procedure now? And I'm going back six,seven years back in--but typically they would--you'd go in,on the building--the building envelope that is allowable for a building would be shown on the site drawing of the--and then all of the setbacks would be checked off to ensure that the setbacks are in compliance. CHAIRMAN STRAIN: The permits for this project are on my desk. I pulled them yesterday afternoon.That document is there. COMMISSIONER SCHMITT: Is there. CHAIRMAN STRAIN: There's been four permits:One demo,one pool,the main permit for the house,and the dock permit that was reissued,because it was started,then stopped,and then reissued again. And there's some discrepancies between the permits,but the setbacks and everything were acknowledged by staff as being okay and issued that way. And I've actually got the building permit with me. I didn't know how much the applicant would have brought in case there were questions,but the permit itself was issued at 10 feet. COMMISSIONER SCHMITT: You don't have that document that shows the setbacks being approved? CHAIRMAN STRAIN: It's in the file that's on my desk. I did not bring it with me to the meeting. I assumed the applicant would have brought all of that,but-- COMMISSIONER SCHMITT: I'm surprised that that's not part of the application or the applicant would have had that to present to us today. My second question--and I'm going to defer to Fred because I want to clearly understand the--again,I've got the MUNI code here. I'm trying to read the MUNI code,because I looked at this before. But in this part I recall nine, 10 years ago,that's what drove the change in the code,if you went up a certain height,and I seem to think it was four feet; is that correct? MR.SHAPIRO: That's correct. COMMISSIONER SCHMITT: You go four feet,you have to have a 20-foot setback. If your pool height is less than 4 feet,you only need a 10-foot setback; is that essentially the-- MR.SHAPIRO: That's exactly correct. CHAIRMAN STRAIN: Well,we can--I'll give Fred the code. COMMISSIONER SCHMITT: Yeah,let's review that,because I want to make sure that--and I had thought at one time that actually in the LDC there was a diagram that showed that. I guess that's no longer in Page 7 of 46 January 19,2017 the LDC. CHAIRMAN STRAIN: No,but a former administrator by the name of Joe Schmitt actually did a diagram a few years back,and it's in the staff clarification section of our notes. COMMISSIONER SCHMITT: I did,yes. CHAIRMAN STRAIN: Fred,if you go here--go to the reference in the table first,and that's--once we get this seen,maybe it will help some of the questions that you-all have. MR. SHAPIRO: But,Mr.Schmitt,my understanding is exactly as you described. And I think their--rather than four feet,they're 6.57. CHAIRMAN STRAIN: Fred,that--I'm not sure that's the right one. Those were non-waterfront. Go to the next table. MR.REISCHL: Oh. COMMISSIONER SCHMITT: You're going to have to pan out a little bit on that,Fred. CHAIRMAN STRAIN: Well,I'll show you--the footnotes are on a separate page. Go to the next table. It's the second or third sheet. And if you look down where it says No.4--you have to pan out a little bit--this is for waterfront lots along the Gulf of—and No.4 says,swimming pools and screen enclosure single-family,one-family,and now two-family;rear, 10 feet,and then the little Footnote 3. Now,Footnote 3 is the catchall on this. If you could show Footnote 3,Fred;down the third page,I think. MR.REISCHL: Very small. CHAIRMAN STRAIN: Yeah,it says 20 feet where swimming pool decks exceed four feet in height above the top of seawall or top of bank except Marco Island and Isle of Capri,which may construct to a maximum of seven feet above the seawall with a maximum of four feet of stem wall exposure with a rear setback of 10 feet. So--and Marco,by the way,is no longer part of Collier County. So I pulled Marco's LDC,and they have mimicked this language in their current standards. So the seven foot applies to Marco and Isles of Capri,but only four foot of concrete exposure,which means it's got to be clad or a buffer with vegetation or sodded. MR.REISCHL: Sodded. CHAIRMAN STRAIN: Any way you'd like. But if they're at less than 20 feet,they can't go higher. It's got to be four feet so that a variance is not for the setback as much as it is for the height to be at that setback. I hope that helped clarify because this was not an easy one to follow for that language. COMMISSIONER SCHMITT: What--and so the current height as shown,is that correct what we have-- MR.SHAPIRO: I think the county measured at 6.57. CHAIRMAN STRAIN: Yes. COMMISSIONER SCHMITT: Okay. That's the current height,then. Okay. I thought it was four-point something. Okay. 6.57. All right. CHAIRMAN STRAIN: All right. Anybody else have any questions of the applicant? COMMISSIONER SCHMITT: Marc,you stated that there were four inspections. Those inspections were not specifically looking for setbacks. There are several inspections throughout the building process. MR.SHAPIRO: Correct. And we're not specifically looking for setbacks,that is correct. COMMISSIONER SCHMITT: And I want to make sure that's clear on the record,because if an inspector goes out and does an electrical,he or she's doing electrical inspections,not a setback-- MR.SHAPIRO: Correct. COMMISSIONER SCI IMITT: --verification. MR. SHAPIRO: And I'm talking about--and the builder could better explain this,because I'm getting my information from the builder and relaying it to you. But I think there are four inspections on the pool. So at no time was it ever said during any of those inspections that,hey,your setbacks aren't correct. I guess the point is is that now that it's already there,it would be a very--economic hardship to take it all down. It would come at a considerable cost is,I guess,what I'm trying to say. Page 8 of 46 January 19,2017 And,you know,maybe--and this is up to you. But you were saying that the Marco Island code said you could have a certain height as long as there was a buffer there, and maybe that's a compromise,to put a little hedge in front of the stem wall. CHAIRMAN STRAIN: Generally what happens is when we run into these situations,the applicant will come prepared with the documentation to basically make their case in regards to how this occurred. And I know you don't--you haven't got any permit applications or anything with you,do you? MR. SHAPIRO: I don't have the permit applications with me,no. CHAIRMAN STRAIN: Okay. I have reviewed them,and I didn't bring them because they're our county's copies,but I didn't know you wouldn't be bringing them as well;otherwise,I would have brought them to help clarify some of the things you've asked,Joe. Some of the things you've said I wanted to get some clarification on. You said there were 43 people who didn't call or sign--or necessarily sign in favor. Did someone--and that was an assumption they weren't objecting to it then? MR. SHAPIRO: Yes. CHAIRMAN STRAIN: Did you physically or did your client,or do you have something documented that says you actually went to these 43 homes and spoke to those people? Do you have a survey or something where you-- MR.SHAPIRO: No. What I do have--and I thought you already had that,but I have a--I actually have a copy of a letter that was signed by--and then there's signatures,and then next to it is the residence that they live at. MR.REISCHL: That's included in your packet. CHAIRMAN STRAIN: Right. How many people are on that signature page? MR. SHAPIRO: Eight. CHAIRMAN STRAIN: Right. His number was 43,and I'm trying to understand-- MR. SHAPIRO: The 43 -- CHAIRMAN STRAIN: --how valid that is. MR.SHAPIRO: --because I think that's the number of residents on both sides of the street.And what I was told by my client is that the objector that's here today pretty much knocked on everybody's door. CHAIRMAN STRAIN: Okay. You have a couple times mentioned the view down the canal,and at the end of the canal wasn't obstructed any more by what your client has built versus what may already exist there. The view corridors that we consider for these kind of things usually are in line with riparian lines. And that may be an avenue that you may want to look at in reference to view in the future. But down the canal and out the end isn't really something that's considered as directly behind their home. They have riparian rights on both sides of their house,property lines,and that's generally what we take a look at in these kind of matters. MR. SHAPIRO: If I could show you an answer(sic)that might help answer that question. So these little yellow tabs,and I'm not how sure-- CHAIRMAN STRAIN: Oh,we can see them. MR.SHAPIRO: You can see them. But those are the people that I believe that are objecting to the variance. And that was taken by Google Earth,so at the time the structure was not up so,unfortunately,I don't have a picture with the structure up,but this vacant lot right here is where the structure was built. So heading this way,that is the open water view heading-- COMMISSIONER CHRZANOWSKI: You have a vacant lot? It's not the one with the trees. It's the one two off--yeah,right under the W of Tradewinds. MR. SHAPIRO: Oh,yes,you're correct.That's--yeah. So that's the house in question,and then this is the location of the people that are objecting. So I guess what I'm saying is, it's hard to see how their view would be affected. And if it is affected, it would be very minorly. I mean,we're talking about 2.57 feet. And,actually,when you--if you look straight across the canal,the boat sticks up higher than the elevation of the pool. So you actually can't even see the pool wall because of the boat that's in front of it. CI IAIRMAN STRAIN: Okay. A couple other issues. You mentioned,or I thought you stated,that Page 9 of 46 January 19,2017 if this pool was moved back six feet,you could have had it at the height they're at. That's not true. To stayat g Y that height you'd have to be 20 feet back,and you're only 10.15 feet back.Then if you take into consideration your stairwell,you're only 6.5 feet back. So you'd have to be considerably further back. The issue of being forward or backward is not as much of an issue as the height of the deck of the pool. That's the six feet that we're trying to--six-and-a-half feet or so we're trying to deal with. The property is perfectly in line with others.When you made that statement,do you know if the others are above four feet since they're in line with an alignment that could only be allowed if they were at or below four feet? MR. SHAPIRO: Some are and some aren't. Some are below four feet. There are some that are above that--again,probably more than 10 years old when the--before the code changed. CHAIRMAN STRAIN: Well,the code is actually older than that. But if there are some above that height and they're in that alignment,it would have certainly been helpful to possibly have looked up those building permits and see what height they're at and maybe would help your argument. But I didn't know if you had that information. I'm double-checking to make sure I don't have any other questions. Oh,I noticed in your photos you didn't show the existing construction with the stairwell. The stairwell is part of the setback alignment. Did you have one with the stairwell? MR. SHAPIRO: Yes. I'll show you a couple. CHAIRMAN STRAIN: There you go. MR. SHAPIRO: That would be the stairwell right there. CHAIRMAN STRAIN: So the variance request for the setback is because the stairwell exceeds the allowed protrusion if it was at four feet for the pool deck,for example,to go into a setback. Stairwells do have some allowance to--when you go into a setback,but I believe it's only three feet,and this one's three-and-a-half feet? MR.REISCHL: Three feet is the allowable protrusion,and this one is three-and-a-half. CHAIRMAN STRAIN: Okay. So if this one had six inches less of the protrusion of the stairwell and the setback was allowed at 10 feet,the stair wouldn't be an issue. So I wanted to point that out because it is part of the discussion today,and I noticed the closeup photograph you had didn't show the angle from the stairwell. And,by the way,1 don't know if staff caught this,that stair is facing a different direction than the stair that was approved on the building permit. And if the builder's here,maybe he can answer that question, too. COMMISSIONER SCHMITT: Can you back that out a little bit so I can get a full picture of the-- MR.SHAPIRO: Yes. I actually have another one that has a more full view. If you'd like to look at that,that may be better. COMMISSIONER SCHMITT: And just for clarification,it was my understanding that the need to build the pool height at the elevation that was built at. Two--one is to meet the base flood elevation for the home,and most residents want to walk out from their residence onto the pool deck rather than walk down the stairs to the pool. Could the pool have been built--could it have been designed and built at a lower height than what it was built at? Which means you would have left the house and walked downstairs to another elevation,a lower elevation for the pool. MR.SHAPIRO: So the answer to your question is,I believe so. Now,the builder could better answer that. So it's not whether it could have,because I believe that it could have. I mean,it could have been built at a 4-foot instead of a 6--instead of a 6.57-foot. But the issue is now it's been done,and to kind of un-ring that bell comes at a significant cost. So I don't think it's a matter of could it have been in compliance. I think that if we were to honestly answer that,yes,it could have been built in compliance,but since it hasn't,it's just what is the cost of bringing it into compliance.And I think that's a petty heavy cost compared to the impact. COMMISSIONER SCHMITT: Understand. Fred,can you put that other picture up that shows the overhead? I wanted to--again,that's--can Page 10 of 46 January 19,2017 you center the house actually into the picture. COMMISSIONER CHRZANOWSKI: Zoom out a little. MR.REISCHL: Zoom out. COMMISSIONER SCHMITT: Yeah. There. I want to get a picture of the whole thing. Okay. Yeah. That's exactly what I thought. You're coming out from the house onto basically a lanai deck, and then the pool is at the same height. MR.REISCI-IL: It's just a few inches. The house is--the base flood elevation was 10,and it's nine-point something. It's a little--a few inches less. So you'd step one step down onto the pool deck. COMMISSIONER SCHMITT: Okay. CHAIRMAN STRAIN: Anything else? COMMISSIONER SCHMITT: No. CHAIRMAN STRAIN: Could you ask your builder,if he's here,if the builder could come up. We do have questions since we understand he's here. COMMISSIONER SCHMITT: Is that the builder or the person who designed the house as well? MR. SHAPIRO: Both. I think both. MR.JENKS: I didn't design the house. CHAIRMAN STRAIN: You'll need to say that on the record after you identify yourself. MR.JENKS: Jason Jenks. I was the contractor who built the house. CHAIRMAN STRAIN: And you did not design the house,was your response to that? MR.JENKS: I did not. CHAIRMAN STRAIN: Was that the question? COMMISSIONER SCHMITT: Yeah,that was the question. I wanted to-- COMMISSIONER DEARBORN: Did you sub out the work for the pool,or were you actually building the pool as well? MR.JENKS: We subbed out the work for the pool. COMMISSIONER DEARBORN: The company who's doing the pool? MR.JENKS: Mack Pools. COMMISSIONER DEARBORN: Mack Pools,okay. CHAIRMAN STRAIN: The information about how this 10-foot,at the height that this deck came about,your--the attorney had indicated that the staff provided you and told you to build it,to design it to that distance;is that true? MR.JENKS: The staff. CHAIRMAN STRAIN: County staff? MR.JENKS: Well,the pool was built by the time we submitted for the variance. So we submitted a set of plans,they were approved,and we started to build. Of course,first thing we built was the pool because of the lot. CHAIRMAN STRAIN: Who--when the pool was put down on a set of plans,did you do that,or did you have an architect do that or somebody else? MR.JENKS: A designer did it. I didn't do it. CHAIRMAN STRAIN: Okay. Where did the designer get his information from to determine the setback for that pool? MR.JENKS: I think he made some calls to the county. I don't have that information. I don't work with the designer. He's somebody that designs houses. I was sent the plans. I sent them to an engineer. I have an engineer. I submitted it for a building permit. CHAIRMAN STRAIN: Okay. You do--that's what most GCs would do,so I'm not surprised at that.I'm trying to find out--actually, in your--not your defense,but your client's defense,on how this error occurred. It appears--up until your attorney made the statement he made,it appeared that the applicant,which is your designer or your client,drew the plans up and submitted them to the county,the county reviewed them,and the county erroneously approved them without notifying the client that there was an error in the setback. Page 11 of 46 January 19,2017 I think the error probably was on the plan. I think the error's on both part of the applicant as well as the part of county for not catching it.And the county missed it numerous times. I've got the plans. It wasn't vague. It was clear. It was clear where it was. Your structural drawings show how that stair was also--the width of the stair was clear. I mean,anybody that reads plans would have been able to figure this out. I can't--I certainly can't say the staff is not to blame in part of this. They certainly are. And I think the issue is that whoever set this up in the site plan trying to determine what the initial setbacks were either went to the wrong table or missed the footnote on the second table,kind of as we started out here today. There's two tables,and one is for waterfront,one is for non-waterfront. But one has a little Subscript 3,and the other doesn't. And if you're from another part of the county,you wouldn't be surprised at six-and-a-half feet in height because I bet you could go up to seven. So there's a lot of little things that came into play on this one. It's certainly understandable that some errors were made. I just think we need to find a solution today. In regards to how you were going to finish off this concrete wall now that's there,has anybody looked at opportunities to,say,take away/distract from that wall by cladding it,by putting in shrubbery,by doing embankments or anything like that? MR.JENKS: Those were all options,and it would definitely be some landscaping on the backside of it. CHAIRMAN STRAIN: Okay. So you-all haven't brought anything,though,to propose today? MR.JENKS: We did not. CHAIRMAN STRAIN: Okay. The height of the seawall. You were the GC;the pool contractor was subbed to you. Orick Marine,I believe,did the deck. Was he contracted through you or directly to the owner? MR.JENKS: Through the owner. CHAIRMAN STRAIN: Did you work with him at all in coordinating things? MR.JENKS: I did not;not the seawall. CHAIRMAN STRAIN: Okay. Do you know--is he here today;does anybody know? MR.JENKS: He's not. CHAIRMAN STRAIN: Okay. He certified the seawall to be done according to the plans. I see--I found the certification. The plans call for a 4.2 deck height,top height on the seawall cap. The plans that all this variance request is from is a 3.2 height. I just am now--that's a 1-foot difference. It's significant when you look at the difference you have in what you're trying to seek as a solution to your whole operation. And I'm just wondering,does anybody know if that seawall is actually elevated to the 4.2 that the certification seems to insinuate? MR.JENKS: It should show it on the survey that we turned in. CHAIRMAN STRAIN: Well,it does. It shows 3.2,but I've got a building plan that says it will be capped at 4.2,and I have a certification from the installer that says that's right. So I'm confused by the height of the cap. MR.JENKS: I don't know the answer to that. CHAIRMAN STRAIN: Okay. The stair. Did you submit a change to the plans to have the stair turned in that direction you've got here? MR.JENKS: We did not. CHAIRMAN STRAIN: Okay. I mean,it's a minor issue. It's still the same distance out,but I just happened to notice it was twisted in a different way. MR.JENKS: It was just easier access to the dock. CHAIRMAN STRAIN: Well,actually,it's better for the neighbors,too. It actually makes people using the stairs going in and out a different direction. So from that perspective,it doesn't harm anything. I was just curious if it got cleared through another permit application. That may have had some indication to the setbacks;may have looked at them again. That's all. COMMISSIONER EBERT: I have a question. CHAIRMAN STRAIN: Go ahead. Page 12 of 46 January 19,2017 COMMISSIONER EBERT: Have you built in Collier County before? MR.JENKS: This was the first house I ever submitted for for a full construction. We've done lot of remodels and additions in Collier County. COMMISSIONER EBERT: Okay. So you,as a contractor,are familiar with our codes then? MR.JENKS: Yes. COMMISSIONER EBERT: Okay. MR.JENKS: But not the code that has the height on the seawall. This wasn't done intentionally. COMMISSIONER EBERT: No,we all kind of understand that,but-- MR.JENKS: Right. COMMISSIONER EBERT: --one other thing. Pm reading through this,is that a lot of this was found last October. Is there a CO on this property yet? MR.JENKS: There is not. COMMISSIONER EBERT: So the people have not moved into the home? MR.JENKS: They have not. CHAIRMAN STRAIN: This started with a complaint that started with Contractor Licensing,and I think in April of 2016,then it was followed up with a slab survey in May of 2016. I think that's when everything was kind of unfolded from that point forward. But it wasn't necessarily Code Enforcement initiated,as some of this information shows. It was Contractor Licensing that initiated it,the call. It came into Contractor Licensing from a neighbor across the way,apparently. COMMISSIONER EBERT: So it does go back quite a ways then? CHAIRMAN STRAIN: Well,April of last year;a little bit less than a year ago. They've been trying to work and get it resolved since then. It started with my office,and then it had to get continued to here. MR.JENKS: We've continued to work on the house,but we haven't touched anything on the pool or the pool deck since we were notified of the issue. COMMISSIONER EBERT: Okay. So the pool deck is-- MR.JENKS: It's exactly like it was when we were told it was not in compliance. COMMISSIONER EBERT: Okay. Thank you. CHAIRMAN STRAIN: Anybody else have any questions of the gentleman? COMMISSIONER SCHMITT: Yes. On that picture shown that you have on the visualizer,the deck that is--and this is a general question that probably the applicant,anybody,can answer. But the deck height that is in the house on the bottom of the picture,is that boat deck higher in elevation than the existing deck that was built? MR.JENKS: The deck we constructed is higher than that deck. COMMISSIONER SCI-IMITT: It is? Because this one--that deck to the south appears to go over the seawall,and it's all one structure all the way up to the pool. I'm looking at,is that--was that the intent for this existing-- MR.JENKS: It looks like their dock comes over the-- COMMISSIONER SCHMITT: That's it,the dock. MR.JENKS: --ground is what it is,and they just built the dock and went all the way back to that seawall or to their pool retaining wall. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Okay. MR. SHAPIRO: Mr.Strain,I just wanted to clarify one thing. When I made the comment that--I guess,that the permitting erroneously gave them the wrong setbacks,so I personally have no idea. I actually read that from the staff report,so that's where I got that information from. That's what they state in their staff report. CHAIRMAN STRAIN: Okay. Thank you. Anybody else? (No response.) CHAIRMAN STRAIN: Any other witnesses that you want to call,or you done with your Page 13 of 46 January 19, 2017 presentation? MR. SHAPIRO: We are done with the presentation. There--as you said,the only other people would be neighbors,but I believe they go later. CHAIRMAN STRAIN: They'll be coming up later,yes. Okay. Thank you very much,both of you.Appreciate it. Fred,do you have a staff report? MR. REISCHL: Thank you,Mr.Chairman. Fred Reischl with Planning and Zoning. You've read the staff report,and staff is recommending approval with the condition. You know normally that variances run with the land. In this case,we're recommending that if there--if the structure is destroyed more than 50 percent of assessed value,that it would have to meet current setbacks. So we're modifying it so--because this is based on a financial hardship,we figure that financial hardship would go away if the house was destroyed;therefore,they'd have to meet current setbacks. It would not run with the land. CHAIRMAN STRAIN: Okay. Are there any questions of the staff? I think,Joe,you had one earlier. Did you still? COMMISSIONER SCHMITT: No. I'll just hold off until we have general discussion. CHAIRMAN STRAIN: Okay. Fred,on the--oh,Stan? COMMISSIONER CHRZANOWSKI: When we have that general discussion,are we going to be allowed to ask them questions? CHAIRMAN STRAIN: Yes. We won't close the public hearing until that's over. COMMISSIONER CHRZANOWSKI: Okay. CHAIRMAN STRAIN: As far as your understanding of how this originated,do you know if,in fact, staff,at the period in which an applicant may have asked for design features of this location,this lot,was given--was the applicant given information to say he could use a 10-foot setback,or is that just something that seems to be not verified? MR.REISCHL: I don't know the answer to that. CHAIRMAN STRAIN: Okay. At this point the only thing I can find is it was submitted erroneously,then reviewed erroneously,and then a permit was issued erroneously. That's the best I can-- MR. REISCHL: That was my understanding,too,but I don't know for sure if someone directed them to do it at 10 or not. CHAIRMAN STRAIN: Okay. COMMISSIONER EBERT: I have a question. CHAIRMAN STRAIN: Go ahead,Diane. COMMISSIONER EBERT: Fred,you said this is a financial hardship. I would not blame the owners of this home on this at all,but the--being it is--that the pool was stopped so long ago and nothing has been done,I would think that it would be their responsibility and not the owner's responsibility as far as financial;is that correct? MR.REISCHL: That's a legal question. CHAIRMAN STRAIN: I was going to say... COMMISSIONER EBERT: Well,I mean,we always use money,you know,in this stuff. And I was just-- like I say,I don't feel that it should be up to the owner. But were these people--were they told you can proceed at your own risk? MR.REISCHL: That's our standard answer is that,yes,you can proceed at your own risk pending the outcome of the--in this case was the Hearing Examiner and now the Board of County Commissioners. COMMISSIONER EBERT: Okay. When were they told that they could proceed at their own risk? How far back? Was this April/May when all this happened? MR. REISCHL: The Building Department would have done that. I don't know. COMMISSIONER EBERT: Okay. Thank you. COMMISSIONER SCHMITT: I want to clarify. I mean,that's-- CHAIRMAN STRAIN: I was going to go there,too. Go ahead,Joe. COMMISSIONER SCI MITT: I think it's sort of disingenuous to say they're proceeding at their Page 14 of 46 January 19,2017 own risk. It's a procedural process. When you come in and submit for a permit application,the applicant submits,submits the plans and drawings,they're reviewed by staff,and they're approved by staff. So the applicant proceeds based on the understanding that what they submitted meets in compliance with all the requirements. I don't know if that's the proceed-at-risk issue. It is a review and approval. MR.REISCHL: Well,it would be a risk that the variance would be approved versus-- COMMISSIONER SCHMITT: Well,wait a minute.No,I'm going back prior to when the house was first submitted. When the application first goes in,the applicant goes in,the plans are reviewed,the setbacks are reviewed,the setbacks are approved,and the applicant hires a builder,and they build a house based on what the county approved. I don't know if there's a case of sovereign immunity. I guess that's an issue from the county.Could the county be held responsible? I'm not going to go down there,but that's not an issue.The issue here is there's a variance,and-- I mean,in general terms,I've got to tell you what,my days in the county,this is more post-traumatic stress than my year in Afghanistan,I've got to tell you. I went through several of these in my tenure as the county--or the administrator for Community Development. And it's a case of applications coming in,the amount of applications coming in and the stress to approve--review and approve,and there was an error made,basically. COMMISSIONER HOMIAK: They were given a permit that says 10 feet. COMMISSIONER CHRZANOWSKI: How much of the house was built when this was found? MR.REISCI-IL: I was not the original planner on this. One of my coworkers was. COMMISSIONER CHRZANOWSKI: The contractor would probably know that better than you would. CHAIRMAN STRAIN: I was going to ask the contractor to come back up. No,you have to come to the microphone,and maybe we've got a couple more questions for you. Before we do,there was something I wanted to mention in line with what you were saying. The reviewer on this,by the way,was a fellow we had hired recently from Marco Island,and it wouldn't surprise me if,based on his knowledge of Marco Island,Marco Island would have allowed this to go to seven feet, that might have also contributed to the error that happened. Sir, if you could answer-- COMMISSIONER CHRZANOWSKI: How much of the house was built when the problem was found? MR.JENKS: The rear retaining wall was in place,the pool shell was in place,the slab was in place, and I think we had just poured the tie beam,and we may have started framing by then. I don't have the exact-- COMMISSIONER CHRZANOWSKI: Okay. Because there was a comment you made earlier that you did the pool first. I could understand that,because you couldn't build a pool with the house in the way-- MR.JENKS: Correct. COMMISSIONER CHRZANOWSKI: --unless you built it from the waterway,which is practically impossible-- MR.JENKS: Correct. COMMISSIONER CHRZANOWSKI: --which is one of the problem you're going to have if you have to take it out. You've got to take it out from water side,which is practically impossible. You've got to move the dock,you've got to move the boat. So I could see,even if you told them that,hey,the pool was in the wrong place,you know,they might as well not stop because there's nothing they can do. The house is already in the way. MR.JENKS: That's true. That's true. We didn't do anything to make it any harder to remove this pool or,you know-- COMMISSIONER CHRZANOWSKI: Yeah. But once the house is up to the tie beam,you're not going to get back here to do anything with the pool. MR.JENKS: Correct. COMMISSIONER CHRZANOWSKI: Not easily. MR.JENKS: Not easily. Page 15 of 46 January 19,2017 COMMISSIONER CHRZANOWSKI: Well,you can do anything you want if you've got enough money.Okay. Thanks. CHAIRMAN STRAIN: I've got a question,a follow-up. MR.JENKS: Yes. CHAIRMAN STRAIN: You anchored the pool,not with piling,with tie grade beams is what you--that's the only thing holding the pool down? MR.JENKS: Pilings. CHAIRMAN STRAIN: Oh,you've got piling as well. MR.JENKS: And footers,yeah. It's sitting on pilings. CHAIRMAN STRAIN: Okay. Now,there was a cost put in the report that said it would be about $50,000 to remove that pool and then,of course,it would have to be redone,then all the debris would have to be removed. I know it's not finished,but I would think the 50,000 is certainly a number that's probably realistic in looking at the condition it's in today just to get that concrete taken out and hauled away, if not more. So to answer--Diane seemed to think you stopped construction and,if you did,maybe your value to replace the pool wouldn't be as great. I think the 50,000 is probably conservative in cost-wise to clean this up if it had to be. MR.JENKS: It probably is. And it wouldn't—nothing changed back there. You know,if it was--we continued with the house at our own risk. We still have to get all the stuff back around the front of the house,so we didn't change anything of tearing the pool out. CHAIRMAN STRAIN: Okay. Thank you very much. MR.JENKS: Thank you. CHAIRMAN STRAIN: Did you have anything? COMMISSIONER HOMIAK: No. CHAIRMAN STRAIN: Okay. With that,we will go to--we'll start with registered speakers. As your name is called,please come up to one of the microphones,identify yourself for the record,and if your name is hard to spell,just please spell it for the court reporter so we don't get it mixed up. MR.REISCHL: The first speaker is Edward Tappen followed by George Marks. MR.TAPPEN: My name is Edward Tappen. I spell my name T-a-p-p-e-n. CHAIRMAN STRAIN: Thank you. MR.TAPPEN: Was there anything else? CHAIRMAN STRAIN: No,sir,that's fine. We're off to a good start. MR.TAPPEN: For the last year I've been an advocate for having Collier County establish common municipal golf courses. Collier-- CHAIRMAN STRAIN: This--sir,are you here to talk about the golf course? MR.TAPPEN: Yes, I am. CHAIRMAN STRAIN: This is not that one. MR.TAPPEN: Pardon me? CHAIRMAN STRAIN: We're not talking about that right now. It's coming up in about-- MR.REISCHL: That's the next item. CHAIRMAN STRAIN: That's the next item. This is about a pool variance,swimming pool variance. MR.TAPPEN: Okay. Sony. I thought my name was called. CHAIRMAN STRAIN: No problem. Save his card for later. MR.REISCHL: There was no item listed on it. CHAIRMAN STRAIN: No, I'm sorry. It was a mix-up on our part. MR.TAPPEN: Will I be back soon? CHAIRMAN STRAIN: I hope so. COMMISSIONER CHRZANOWSKI: We hope. MR.REISCHL: And I know I called Mr. Marks next,but his attorney,Patrick Neale,requested to go before Mr.Marks. • Page 16 of 46 January 19,2017 CHAIRMAN STRAIN: Yes. MR.REISCHL: Patrick Neale followed by George Marks. CHAIRMAN STRAIN: And,by the way,for those of you who have not attended our meetings before,speakers are limited to three minutes unless waived. We generally don't enforce that as long as the information you're providing is not redundant and it's not repetitive. So we're here to listen to you. Just be conscious of everybody's time,please. Thank you. MR.NEALE: Good morning, ladies and gentlemen. Patrick Neale,N-e-a-1-e,for Mr.and Mrs. Marks who are in opposition to this variance. What I'd like to bring the Board's attention to is--the Commission's attention to is more the legal issues that revolve around this. As you're probably aware,there are,you know,eight criteria that are involved in the granting of a variance. A variance is not something that's to be taken lightly. There's a great deal of case law out there on variances,and I'm not about to bore anybody with doing what I have to do all day,which is read case law,so I'm not going to do that. But what I'd like to bring to the Board's attention is a case called Indialantic versus Nance,which really sets out the primary issues as to a zoning variance. And the prerequisite to a granting of the variance is the presence of an exceptionally unique hardship to the individual landowner,unique to that parcel and not shared by other property owners in the area. There's nothing unique about this situation for the landowner. The landowner simply went in,had a design professional who did not know what they were doing,frankly. They came in and submitted a plan that was in error based on the evidence of record at this point,and then proceeded to build based on that. Now,yes,they did rely on the county's assertions,but in my experience in dealing with county permits--and I've been here for a while--typically the permit says that it's the responsibility of the landowner and their design professionals to meet the code. It's not the responsibility of the county to make sure the design professionals did their jobs properly. So we'll go through--and I'm going to very briefly go through the eight different criteria--any special conditions and circumstances particularly land, location,size,and characteristics of the structure. And in this case there are none. These are essentially lots that are all pretty much the same within a development wherein the Land Development Code sets out what the standards are for this kind of construction. And we've heard ad nauseam what the standards are,as it's a--it's a 20-foot setback here. And this is a significant deviation from that. It's a 50 percent deviation from the setback,and it's about a 60 percent deviation from the height. So it's a very significant deviation. Any special circumstances do not result from the action of the applicant. Every problem here results from the actions of the applicant. The applicant is the one who made the error in submitting the application. Yes,the county may have messed up,and they occasionally do that,but in this case,still it's the applicant who had--who made the erroneous application. Will a literal interpretation of the provisions work unnecessary and undue hardship on the applicant? I say that this is not unnecessary undue hardship because they're the one that made the mistake in the first place. Will the variance, if granted,be the minimum variance to make possible a responsible use of the land,building,or structure? The minimum use of this is to build a house,and they're going to be able to build a house;they're just not going to be able to put their pool as close to the water as they want it to be. Will it confer on the applicant any special privilege that's denied by these zoning regulations? Well, yes,it does. What it does is allow this person to build their pool where no one else can build it under the same set of circumstances. So,yes,they are getting a special privilege. Is it going to be in harmony with the general intent and purpose of the LDC and not injurious to the neighborhood or otherwise detrimental to public welfare? Well,it's not in harmony with the LDC;that's clear. And I will get testimony here later that will state that it's injurious to the neighborhood. Natural conditions or physically induced conditions? No,there's no natural conditions or physically induced conditions. This was a bare lot in a subdivision. Will it be consistent with the Growth Management Plan? Well,yes,it is. I will admit to that;so it is Page 17 of 46 January 19,2017 consistent with ther G owth Management Plan. So,therefore,I mean, I believe and I would argue that this doesn't meet any of the criteria for the granting of a variance and that the variance should be denied. And so that is all I have to say. Thank you very much. Any questions,please? CHAIRMAN STRAIN: Yeah. Patrick,do you have-- Pat, I've got a couple. MR.NEALE: Sure. CHAIRMAN STRAIN: The Atlantic(sic)case that you cited is a 1982 case? MR.NEALE: Yes. CHAIRMAN STRAIN: I did notice you didn't provide it as backup. And did you do any research to verify that the variance criteria language in there--in that case in 1982 was identical to the variance language--let me finish first. One at a time. MR.NEALE: Sony. CHAIRMAN STRAIN: That way it's identical language that we have in today's code. Because in 1982,we didn't even have--our GMP wasn't even enacted yet. So we had--that was an 82-2 code in Collier County. Have you done any of that research? MR.NEALE: Yes, I did;I did. And I went through and,what we call, Shepardized the case and checked future cases and,basically,they all mirror the same language. And,actually,our code very closely mirrors the language that's set out in Indialantic and other cases that are subsequent in its progeny,so... CHAIRMAN STRAIN: You didn't bring any of that with you? MR.NEALE: I didn't. I wasn't going to make full-blown legal argument here because-- CHAIRMAN STRAIN: Well,we definitely would have appreciated you doing that. MR.NEALE: I can do that. CHAIRMAN STRAIN: You said it's not in harmony. How come it is in harmony in the community that I believe you actually lived at on Marco Island? How come it's in harmony in Isle of Capri? How come that height would have been in harmony elsewhere in the county but,uniquely at Vanderbilt Beach,it's not in harmony? MR.NEALE: Well,as you know,legislative decisions are made. This is--obviously,that would be a legislative decision setting out the code as opposed to a quasi-judicial decision. And legislatures can make decisions such as that based on the character of that particular community. So the legislature as it was,the County Commission,or those--Marco City Council made those decisions at that point in time. CHAIRMAN STRAIN: Okay. And I can ask staff this,but I think you probably have the same answer. This Board's responsibility is to review consistent to the Land Development Code;is that not true? MR.NEALE: Yes,sir. CHAIRMAN STRAIN: Thank you. Next speaker,please. MR. REISCHL: Next speaker is George Marks,followed by David Galloway. MR.MARKS: Good morning,everyone. My name is George Marks. I live at 319 Lagoon Avenue in Naples. And I am a licensed architect,and I am here for a reason that I think is important to the entire community of Vanderbilt Beach. What has--I,quite frankly,myself and the other neighbors,we feel badly for the people that are trying--the applicants here that are building this property. They hired a designer,they hired a builder,they hired everybody to build this for them,and their house has been built. And,quite frankly,we think they're building a nice house. The problem becomes the issue of the pool,and the problem becomes not just the--not just the issue of the fact of the way this exists now,but the precedent it sets going forward. We don't believe there's a hardship here. We all know that you can't create your own hardship.I've sat on your side of the table. I understand the legal on--Mr.Neale has already addressed that,and I'm not going to repeat that. But the key issue that Mr. Shapiro stated was that all of his pictures were taken from aerial views. It Page 18 of 46 January 19,2017 did not show the actual height of the pool. I can use the--your projector there. CHAIRMAN STRAIN: We need to have something kept. You can't--you'll need to send that to--can you send that to staff-- MR.MARKS: I will email it to Mr.Reischl as soon as we're done. CHAIRMAN STRAIN: Thank you. MR.MARKS: Okay. If you--can you--does that work okay? Can everybody kind of see that? So if you look at the pool over here that is on the right-- CHAIRMAN STRAIN: It's not on,sir. MR.MARKS: Thank you. If you look at the pool that's set over here on the right,this pool is six-and-a-half feet above the seawall. I'm rounding,of course. This is the property directly adjacent to it,and you can see that in that case the pool is significantly within the zoning. If you look at the property to the other side--so on both sides of this property you can see the pool over here on the adjacent property,that is also within the guidelines,and significantly lower than the height of the pool that is being provided here. We're here trying to be practical,and we're here to understand that this is a difficult situation,but we believe that when the county enacted their zoning law,there are pools that exist that are higher--at the higher level,but in good planning--we moved to Collier County because you've done such a great job with planning. All that we're asking you for is to enforce the actual zoning laws that you put in place. You lowered the height of the pool,and you gave them the option of building--if you're greater than a 20-foot setback, you have to be lower. If you're set back,you can be higher. Why is that? It's for visual corridor. What we don't want to have happen and the main reason I'm here is that we do not want this variance to be granted and then the next person that's further away from the gulf says,well,now I do have a hardship because you allowed that pool to stay in exact,not being within code,and then this becomes a cancer that spreads throughout the entire Vanderbilt community. We are just asking you to enforce the laws that you have. We understand the burden. I'm not going to use the word"hardship"because that's a legal term that we do not believe applies here. To not be unreasonable,we as the neighbors that are objecting and asking that this be held,we understand that all the dimensional variance has already been talked about. This is 60 percent higher. It's 60 percent closer to the canal than it should be. Our concern is that the visual corridor,Mr.Strain,that you spoke about,becomes narrowed.And if you allow this to continue across the whole length of the canal,that visual corridor is diminished. This is not a property on the gulf or on a wide canal. If you allow this to happen,it narrows that visual corridor as much as 20 feet for that entire corridor for a corridor that's not that wide to begin with. That's the reason we're here. That's the reason we're spending our dollars in hiring Mr.Neale,and that's the reason we're making(sic)our time to be here tonight. Our suggestion to make a compromise solution to this--and you asked Mr. Shapiro if he came with a compromise. You asked him if he had a solution. We're here to offer a solution. Our suggestion is that the fact that they are even--they're even violating their own 10-foot setback requirement by three and a half feet. Our suggestion is,leave the layout where it is but lower the height. If you look at this photograph, you can see how it is grossly higher than the properties that are adjacent to it. And our--you can see it in that picture very clearly. Our--we're not trying to be unreasonable.We're offering a reasonable solution that says,lower the pool to the required height setback,because we believe that is the bigger issue than the setback. The setback, the steps being six inches wider,we're not here to object to that. We're hoping to have the variance defeated.If we have to,and we have to go to the commissioners and that is--and this variance is granted,we are prepared,because of the importance of this issue by not creating a precedent to appeal at a higher level,we would much rather be reasonable people and have a reasonable solution today that takes care of this issue. Thank you. Page 19 of 46 January 19,2017 COMMISSIONER CHRZANOWSKI: Could I ask you a question? CHAIRMAN STRAIN: Stan? MR.MARKS: Please do. COMMISSIONER CHRZANOWSKI: The house--as I understand it,that white house,the floor is built to FEMA elevation? MR. REISCHL: Correct. COMMISSIONER CHRZANOWSKI: How come it looks so much higher than the other two? Are they not? CHAIRMAN STRAIN: I don't know. I don't think he could answer that. COMMISSIONER CHRZANOWSKI: Well, if you took the pool out,you'd still be looking at a white face of the wall of the house because it's built to FEMA elevation. You wouldn't see anything different from this view that I'm looking at if you took the entire pool out. So it would still look the same as--you know,higher than the houses on both sides. MR.MARKS: This view is not the objection.The objection is when you're on the adjacent properties and you're looking out the canal,the fact that pool is six-and-a-half feet above. If it was at the four-feet requirement,you would still be able to see and have a visual--not as detrimentally impact the visual barter(sic). COMMISSIONER CHRZANOWSKI: Okay. So this view,even though you showed it,doesn't really mean anything? MR.MARKS: We did not wish to violate the neighbors'rights and walk on their property to take these pictures. COMMISSIONER CHRZANOWSKI: And the neighbors have no problem with this? MR. MARKS: I'm not--the neighbors-- CHAIRMAN STRAIN: We haven't heard all the testimony. MR.MARKS: We heard that objection on the 43 versus eight. I'm not here to exaggerate any issues. COMMISSIONER CHRZANOWSKI: Okay. I'm just--I was just curious what the objection was with that view. It will look like that when they take the pool out. MR.MARKS: I'm using that view to just show the gross difference in the heights. COMMISSIONER CHRZANOWSKI: Okay. Thanks. MR. MARKS: Thank you. COMMISSIONER CHRZANOWSKI: But that's due to FEMA. MR.MARKS: That's not the issue in play here.The issue in play here is the pool,not the height of the building. COMMISSIONER CHRZANOWSKI: Okay. MR.MARKS: We have no objections to the height of the building. CHAIRMAN STRAIN: Go ahead,Joe. COMMISSIONER SCHMITT: I want to go along the same lines. Mr.Marks,is it? MR.MARKS: Yes,sir. COMMISSIONER SCHMITT: Just,again,for the record,you're showing a comparison to the height.But you do not have any information on when that house that you're showing now,the brown house, which,as I look at it,to the--from the back,to the left,you don't have any information on when that was built or what the base flood elevation requirements were for that--on that house when it was constructed; likewise,the house on the right? There's been significant changes--and you know this,you're an architect--in the flood elevation requirements,as Stan alluded to,the base flood elevation,and mandated by the flood zone. And,regardless, you made a statement about reducing the height. They can only reduce the height of the pool,not the house. MR.MARKS: Absolutely. We have no objection to the height of the house. The purpose of this variance is only the pool,and we're keeping our comments just to the pool. COMMISSIONER SCHMITT: Right. So but the house--clearly,the house that you're showing here to the left of the home that's in question,as I look at it from the back,the base flood elevation is clearly a Page 20 of 46 January 19,2017 different elevation than what was now required. MR.MARKS: I am not in a position to answer that one way or the other,sir. COMMISSIONER SCHMITT: Okay. You brought up the comparison. I'm pointing out the difference. MR. MARKS: Understood. Thank you. CHAIRMAN STRAIN: Okay. I have a question,a couple questions. First is the County Attorney's Office in regards to the—now,this setting a precedent. Could one of the county attorneys opine on whether this does or not? MR.KLATZKOW: Does it set a precedent? No. CHAIRMAN STRAIN: Thank you. Mr.Marks,are you licensed in the state of Florida as an architect? MR.MARKS: My firm does work here. I am personally not licensed. CHAIRMAN STRAIN: In the state of Florida? MR.MARKS: Correct. CHAIRMAN STRAIN: Are you licensed at all? MR.MARKS: I am,yes,sir. CHAIRMAN STRAIN: What state? MR.MARKS: Pennsylvania. CHAIRMAN STRAIN: You indicated that they could leave the pool but lower the height. As an architect, I don't know if you do structural engineering or designing as well. Do you do just architect or do you do structural included in your firm? MR.MARKS: I have a BS in structural engineering. CHAIRMAN STRAIN: Okay. Do you know that this is built with grade beams and piling? MR.MARKS: Ido. CHAIRMAN STRAIN: How would you expect them in to lower the pool? MR.MARKS: They would have to remove the pool. They'd have to cut off the top of the piles,they have to remove the grade beams. I understand the implications. CHAIRMAN STRAIN: I just want the audience to understand and the people on this panel to understand it. Thank you. You indicated that--the concern about the view corridor going up and down east and west of that canal. First of all,you live opposite the water from this unit down a little bit about--over a hundred feet away; is that correct? The canal's a hundred feet wide,an assumption. MR.MARKS: I am two properties down across the canal. CHAIRMAN STRAIN: Okay. Your concern is up and down the canal and you feel--I thought you stated that if this went to four feet,as required by the code,and they left it that location,they could actually build the cage like the house you have on the left here. How would a 4-foot-high pool with a cage like that change the view perception when we're only talking two-and-a-half feet overall? So what--how do you see that happening when you could still put the same structures on top of the deck and have the same view corridor that you've got with or without the two-and-a-half feet? MR.MARKS: You can see through a cage. It's a little tough to see through concrete. CHAIRMAN STRAIN: So up and down that canal people would be seeing through these cages to get views of the waterway? MR.MARKS: If that is what is permitted by code,I support it. I'm only asking that the county enforce the zoning code as they have presented it. CHAIRMAN STRAIN: Okay. Thank you. That's all I've got. COMMISSIONER EBERT: I have a question. Is the seawall at the same level for these properties? Is the seawall all even? CHAIRMAN STRAIN: No. If you look at this map,this is an example of what I was trying to get the applicant to have responded to earlier. That seawall they put in,according to the certified building permits,it's one foot higher than the seawall to the left. This actually shows that.And I'm assuming that you are not any more familiar with this than I am in that regard. Page 21 of 46 January 19,2017 MR.MARKS: I would look at the picture same as you saw it. CHAIRMAN STRAIN: That one foot I'm not sure was taken into consideration when this whole variance height part of it came into play because the surveys I'm showing called out the old height of the seawall,not the new height that was certified to,which changes the deviation of a foot. So instead of 50 or 60 percent off,we're a little bit--we're another foot,which will take it down substantially. I'm just not sure how anybody measured this or where the measurement came from. MR.MARKS: I would believe some verification would be there,because if the--if the actual deck is six-and-a-half feet above that seawall,the condition's actually worse. CHAIRMAN STRAIN: Right. But according to the information supplied,it's six-and-a-half feet above 3.2. That's the old height,not the new height. And that's the best I can tell you from the documents I've read,so... MR.MARKS: I'm not in a position to-- CHAIRMAN STRAIN: It would have been to the benefit of the applicant to have researched that. I wish they had. I don't have any other questions. Thank you,sir. MR.MARKS: Thank you,everyone. CHAIRMAN STRAIN: Next speaker,Fred. MR.REISCHL: Next speaker is David Galloway followed by Nancy Burns. CHAIRMAN STRAIN: By the way,we will take a break at 10:30. MR.GALLOWAY: David Galloway,resident of the Vanderbilt Beach residents area. And,you know,we listen to these issues many times. I have to applaud the Planning Commission.I know there's a lot of research done on your part;I really appreciate it as just an average citizen out in Collier County. I feel for the true applicants,the owner of the property,because it's not their fault even though they hired the contractor,the architects,and whatever,and I feel for them on this issue. I somewhat feel for the builder,the architects,but they didn't do their homework.They didn't do it properly. And even if it was a new employee or newer employee that was--new issues from Marco Island, they obviously didn't know Collier County,so I think that the Collier County has a true problem here as us as the government. 1 think possibly that when we start issuing hardship variances based on financial,it's--we should not be making other people's problems our problems,and I say that in all respect,because we've all been through this. I think the only people that make really some fees here are the attorneys. If you look,both sides have attorneys.And it's unfortunate they have to spend the money on their attorneys. It's unfortunate on both sides. I come here free gratis,my time,but it's also an issue that I think we have to—we have great zoning, and code ordinances in Collier County over the years have been developed very strongly,and I support those; I follow them as they've been developed and the people that do--the commissioners that do enact them. But we have to do this equally and fairly across all lines. And it's a slippery slope when we start granting variances just based on financial hardship even though it's 50,000,25,000,or 100,000. But also the county should be responsible for some of this also and not just saying,well,everybody made a mistake. Let's just let it go away,because it's not fair to the other citizens that live in that community also. So I speak only as a concerned citizen that we have to constantly,in the Collier County,enforce the ordinances and the code equally across the board so that there's--we don't have these kind of long,drawn-out Planning Commission meetings where everybody gets involved in these. And I think that--overall,I think this could be remedied,but it's an issue that's going to come up again,as we know,someplace in the county,whether it's Marco Island or whether it's here,and northern Collier County,but it's an issue that has to be addressed,and we have to get the personnel that are going to be reviewing this and looking at these things so it doesn't come to this point again. Thanks. CHAIRMAN STRAIN: Thank you. We have time for one more speaker. Page 22 of 46 January 19, 2017 MR. REISCHL: Nancy Burns. MR. SHAPIRO: We have a speaker that has to leave at 10:30. CHAIRMAN STRAIN: Sir,we're--okay. Yeah.You're not supposed to be doing that. Thank you. MS. BURNS: Nancy Burns,and I'm a resident of Vanderbilt Beach,Gulf Shore Drive. Anyway,I do support the Planning Board,and I do believe that the county has an obligation to validate our issues and also support the codes. I really feel for the people. I'm sorry that it's happened for them,but I do feel code should be enforced. CHAIRMAN STRAIN: Thank you. That was quicker than I thought. We have one speaker, apparently,who has to leave at 10:30. On that basis,we'll try to accommodate them if they'd like to come up to the microphone. Identify yourself for the record. MR.JORGENSON: Thank you for doing that. I appreciate it. My name is Jerry Jorgenson. I live at 367 Lagoon Avenue. I've been there for 11 years. I have to disagree with Mr.Marks fantastically about the views. With all the trees,palm trees, everything that we have,you can't see up and down the canals anyway. I live right across the street from this property. I looked at a garbage home for 10 years. I had to call inspectors out to get it cleaned up because there was renters there at one time,and the lady was very nice enough to get it taken care of for me. I'm going to tell you something;I drive those canals all the time,and there's a lot of these high things out there,some prior to the codes,some changed. And,by the way,that wall you're talking about,all the new ones go in now,and you're probably aware,that they are a foot higher now. So whenever you put in a new seawall,it has to go up one foot higher than the old seawalls,so we have seawalls going up and down,up and down until people build,so it really looks kind of ugly,to tell you the truth. It would be nice if we could all have our seawalls the same height. So there's a lot of issues that occur when you're building. In this case,I live directly across the street. I'm very pleased to see the house the way it is. I don't see it being an eyesore in any way,shape,or form. I'm sorry that the county made a mistake. If they wouldn't have,we wouldn't be standing here today. And maybe the builder made a mistake. The problem is,is what--your point you made regarding the cage or someone's point regarding the cage,that is exactly correct. It doesn't--if you go down our canal,we have some of the ugliest structures that you want to see. I do rather(sic)try to fight to get these things taken down like I did a lot of huts that used to be on the thing.They were falling apart during the hurricanes,and they finally took them down. The county come out and said,they're not in compliance;take them down. And then these grass hut things. But on our canal on his side that he looks at,he looks at a lot worse thing than that, I can tell you. We have double-deck wooden structures. They were built,you know,back in the day when you could do that,okay, and they were ugly as heck;painted,peeling,ugly-looking decks. There's one guy who keeps his up nice. The other one,he's got a big tent on top of it. I mean,you're talking about--as you're going out of the canal,we're talking about a beautiful home that's going to have a beautiful--they have every intentions of putting shrubberies and stuff in there. And I don't care what he says;you can't see up and down regardless. I could stand on that side of the canal and sit at Marge and Rich's house on their patio,okay--I go over there and visit them a lot--and we can look right down the canal,and you know, it doesn't obstruct anything. All of our homes,our views,even my home which was built a long time ago--I walk out to my pool from ground level because we were built before the codes changed. And I didn't build it;somebody else did. And when we sit up in our home--we live up in the upper level of our home--we see everything because we have a northern view,you know,looking--and it's--we're so happy this is going up that I'm ecstatic. We have a lot of old homes still in our area,and they keep going down. And as you go out the canal--I don't know,Mr. Marks'house,whoever,he's got a big pool wall with a sand thing next to it. It's,in my opinion,very unattractive to look at. Not his wall but,you know--it's just fine. It's the way it is. And he's allowed to do that,and that's fine. We don't have an issue with it. I don't know him very well,and that's his business what he wants to do. Page 23 of 46 January 19,2017 But in my opinion,you do have--do follow codes. I'm a car dealer. I've built dealerships. We go for variances all the time. You have to go for variances sometimes in life to make things easier and simpler to deal with. If you didn't have variances,what would we have to go back and even--let's just say they wanted a variance before they built because they needed to do it in this particular way because of room--they don't have much room--there's not much property there,so you have to kind of utilize it the best you can. And I'm going to tell you what; it's real nice looking across the street and seeing a beautiful home with a nice wall. And this gentleman Stan,he had a terrific point. I'd rather look at that pool wall than have that pool way down here. Now I'm looking at them trying to build steps to get down to the pool wall,and you're still looking at a wall. And I'm right across the street,literally. And the boat blocks the view anyway,but I like looking at boats,because I have one,too. So thank you for the time. I really appreciate it. And I hope you take under consideration that there's a lot of us there that have no objection to this. I mean,I talked to some of my neighbors;they're not here to speak for themselves,but they said,sure,we don't have a problem with this. I mean,what does it matter? I mean, I agree with rules and stuff,but this one fell through the cracks,and that's why you have variances. And I thank you guys and--for your time and efforts and the time you guys put into your jobs. Thank you so much for letting me speak early.Appreciate it. CHAIRMAN STRAIN: Thank you,sir. Now,with that,we will take a break until 10:45,and then when we get back,we'll resume with public speakers and then after,the rest of our agenda. Thank you. (A brief recess was had.) MR. BOSI: Chair,you have a live mike. CHAIRMAN STRAIN: Okay. If everybody will please resume their seats. We left off with public testimony. We're going to resume with public testimony,and Fred will be calling the next speaker. MR.REISCHL: Steve Emens,followed by John Prestwood. MR.EMENS: I'm Steve Emens,331 Lagoon Avenue. I am the person who called in April because I noticed that going up. The main reason why I called is I know the code. And at that time,before--they had the slab down, before they built the ceiling,construction(sic)this,I wanted to give them the opportunity,because I knew it was going to cost them a lot of money at the end if they didn't get a variance or if they did not get it approved. That's why I called at that time. I couldn't believe that it got missed because you have your architect that has to do the site plan and the surveyor,your pool contractor has to submit plans with elevations on it,so that's another permit where the elevations got missed besides the basic permit. So the seawall guy submitted his and,yes,that seawall is up one foot,and the elevation of the deck,I measured it,is six foot from the new seawall. So that's where that stands. And I watched everybody come out and survey the whole property in April. And then nothing happened. Nothing happened. So now they're applying for a variance after the house is already built. Okay. We're so far along now,we can't do it. It cost too much money. The homeowner's not at fault,I understand.They depended upon a licensed architect;they depended upon a survey that should have been signed and sealed;they depended upon the pool contractor that should have had signed and sealed plans because it has engineering. You can't submit any plans without signed and sealed. You have to have your elevations on it. Now,those professionals are insured professionals,and they should know the codes in Collier County. The house is beautiful,okay. Nothing wrong with that. It's a great-looking house. The view's good. It's just that it's not to code. It got passed. I don't know what reason. I've seen things happen a lot of time where--well, I don't know the case,so I'm not going to speculate on it--where somebody said,hey,oh,can't you just do this for me? Sure we can. And then they build it,and then it's too late,without going back, resubmitting plans. I don't know that. But I do know across the street there's a new house under construction about the same stage they are. Page 24 of 46 January 19,2017 They're putting their trusses on right now.The house is 20-foot setback. The pool is a 10-foot setback,and it's 10-foot,and they have their stairs coming down. And in reference to FEMA code,I know that swimming pools and auxiliary setbacks do not have to be at that FEMA height. They can be below FEMA height. But you can build anywhere in Vanderbilt at grade without a height requirement for that pool to be FEMA. It's the pool equipment,electronics,and the main house structure. And that's my understanding. So that's-- CHAIRMAN STRAIN: Okay. Stan? COMMISSIONER CHRZANOWSKI: You said you called. Who did you call? MR.EMENS: I called Code Enforcement first.I didn't know whether it was a building or a code violation. That's where I noticed it was-- CHAIRMAN STRAIN: A slip came in from Joseph Norris,who is a code compliance for the Contractor Licensing. That's the memo in the file that says you called them. It's got your cell number 860 something or other? MR. EMENS: Yeah,8070. Yeah. I called him. He goes,oh,no,I'm going to forward that on to whomever. CHAIRMAN STRAIN: Well,the only record,the only report is for code licensing. I found under--Code Enforcement didn't get involved at that point. So your call into licensing isn't-- MR. EMENS: Well,yeah,because they turned it right over to that. They said,oh,you're calling the wrong people here. CHAIRMAN STRAIN: Well,he went out and took pictures and photographs of the site. So he actually did some of the followup. MR. EMENS: Right,and that's where it all started back then. COMMISSIONER CHRZANOWSKI: And there's pictures that show what stage it was at when this call was made? CHAIRMAN STRAIN: Sure. We can put them on the overhead if you'd like. This is basically--it's a similar stage to what you've already got. MR.EMENS: Yeah. I knew it was going to be trouble. CHAIRMAN STRAIN: There's seven or so pictures. That's one of them. COMMISSIONER CHRZANOWSKI: And what stage was it at? CHAIRMAN STRAIN: About what it is today.They have a--I think-- COMMISSIONER CHRZANOWSKI: So the house was there? CHAIRMAN STRAIN: Yes. MR. EMENS: Not in April it wasn't all there.They poured the slab,and they were putting up-- CHAIRMAN STRAIN: Mr.Norris went out and took these pictures after--in response to the call. So I didn't--I mean,I haven't got one of the house. That's a picture of what you just about saw. MR.EMENS: Right. The pool was there because they built it before the house went up. CHAIRMAN STRAIN: Right. MR.EMENS: But then when I saw that, it was out—I went over,I measured it. I--and I'm thinking,okay,you going to do your final survey at the end,and now-- CHAIRMAN STRAIN: What did you measure it with? Did you use a-- MR.EMENS: Tape measure. CHAIRMAN STRAIN: Tape measure? MR. EMENS: Yeah,yeah. I hooked it on the-- CHAIRMAN STRAIN: Now,you're the complainant,and you went on the property that you filed a complaint against to show that they were in error.Did you get their permission to go on their property? MR.EMENS: No,I did not. CHAIRMAN STRAIN: Okay. That's kind of odd. I don't know--I've never heard anybody doing that before. MR.EMENS: Well,no,I just walked around and-- CHAIRMAN STRAIN: Okay. COMMISSIONER CHRZANOWSKI: Trespassed. Page 25 of 46 January 19,2017 MR.EMENS: I just saw it,and I wasn't sure,okay,so I measured it. CHAIRMAN STRAIN: You have some--I noticed in looking at your name--and I didn't have your last name;I had your phone number. When I plugged the phone number in to Google,it came up--you had some YouTubes done,and I guess you do pool work for Nassau Pools. MR. EMENS: I build swimming pools,and that's how I knew the code. CHAIRMAN STRAIN: Right. Okay. COMMISSIONER CI-IRZANOWSKI: I'm still curious what stage the house was at,because the information I got before was that the house was partially up when this happened,and he's saying the house was not up at all. MR.EMENS: Well,the walls were up,but it was clear access. You could come straight through the front over the slab right to get to the pool at that time. There was no--nothing inside. It was open. CHAIRMAN STRAIN: I think we can let this one go for now. That's more if the applicant wants to deal with the trespass;that's not our issue. Thank you,sir. MR.EMENS: Yeah. Okay. CHAIRMAN STRAIN: Next speaker,please. MR.REISCHL: John Prestwood followed by Ronald Rossbach. MR.PRESTWOOD: John Prestwood,P-r-e-s-t-w-o-o-d. I'm a neighbor also on Lagoon.And I just wanted to support Mr.Marks'and Mr.Emens'comments and those from Vanderbilt Beach Residents Association that I'm concerned with the code,again,not being enforced. And I realize the more I hear here, it's a very complex situation in terms of the number of errors or perhaps the number of missteps that have been made along the way. I'm in insurance by trade;retired now. I also wondered about the liability that someone else will probably need to determine in this regard,depending upon how you rule,but there is errors and omissions insurance also with respect to the professionals all mentioned here: Architects,builders,engineers,and so forth. I don't know about the county. I wouldn't surmise on that. But it seems like there's a lot of missteps that have been made. So I would encourage you to enforce the code.If there's something that can be done to accommodate things,fine. As far as materiality, $50,000,maybe that's for you to decide. We're talking about multi-million-dollar homes here in this neighborhood. Fifty thousand dollars on a house in Golden Gate might be a lot different than$50,000 in Vanderbilt Beach. That's all'I have to say. I support the--Mr.Marks',Mr.Emens'comments,and I appreciate your work. Thank you. CHAIRMAN STRAIN: Thank you,sir. Next speaker? MR. REISCHL: The next speaker,Ronald Rossbach followed by Margaret Rossbach. MR. ROSSBACH: Hi. I'm Ronald Rossbach. I live at 355 Lagoon,just opposite the canal,in the canal where the house is. I just want to know let you know we have no objections. As a matter of fact,we felt that the whole situation there,the building and the boat and everything,just enhances our view of the canal. CHAIRMAN STRAIN: Thank you,sir. MR.REISCHL: The final registered speaker is Margaret Rossbach. MS. ROSSBACH: My name is Margaret Rossbach. I am Ronald's wife. I live at 355 Lagoon Avenue,and I'm directly across from house in question. And before that,we have been--we built our house in 1980. We've been here over 30 years,and we love it here. This is paradise. And from a woman's point of view,this is so gorgeous that it just enhances the neighborhood,and I don't understand why--or I won't understand if this is not going to be approved because it's just all positive. Before that,then there was a house that it was a duplex. It was much older than our house.I'm sure Jerry,if he was here,he would say I'm one of the houses that he doesn't like,but I love my home,and it's Page 26 of 46 January 19,2017 going to be there until I kick the bucket. And I'm 86 years,going to be 87. So they're going to have to wait a while,because they take such good care of you here in Naples that sometimes you live to be 90 something. So this is not the first time I'm going to come here to beg you to just let this go on and let us all be happy. Thank you. CHAIRMAN STRAIN: Thank you,ma'am. Next speaker? MR. REISCIIL: That was your final registered speaker. COMMISSIONER DEARBORN: Thank you. CHAIRMAN STRAIN: Would you put something on the overhead. I need to clarify one item. It's Page 10 of the staff report,which is the black-and-white survey. You don't have the staff report? MR.REISCHL: On my computer,electronically. CHAIRMAN STRAIN: You guys. We need to have printers in this room, I can tell. Diane,can I borrow yours? COMMISSIONER HOMIAK: I've got scribbles on mine. MR.REISCHL: I was trying to keep up with the chairman on being electronic on this one. CHAIRMAN STRAIN: Well,you've got to get an Apple then. Sorry. MR.EASTMAN: The advantages of paper. CHAIRMAN STRAIN: Actually,that's not the one--it doesn't show enough. The actual survey is the few pages back from that,Joe. Keep going. It's this one here. MR.REISCHL: Oh,the resolution. It's attached to the resolution,I believe. COMMISSIONER HOMIAK: Yeah. CHAIRMAN STRAIN: Yes. That's it. If you could let him borrow that,Patrick,that would be great;thank you. Okay. What I wanted to point out on here--and,actually,you need to zoom in a little bit on the part by the waterway. Right there. Notice on the lower right-hand corner it says,set drill hole on top of concrete seawall,and NAVD elevation,3.32. That's the same elevation that the old seawall was at based on the permit application. Permit application said to cap it,add one foot to it so it would be 4.2,and it also was certified to that. Now, if you'll look over on the left,second note up,it says,per contractor,pool patio stem wall is at 9.9. Now,if you take 9.9,subtract the 3.2,you get your 6.6,which is the issue in question today.What I'm suggesting is it's not 9.9,and then the 3.2 is now 4.2,so the real difference is 5.6;5.6 is 18 inches over the four feet that's allowed. And I guess I've got a question to staff. At that 18 inches,would someone measure from the cap of the seawall,or they'd have to go next door and measure from the old seawall to determine the height that's supposed to be used for this deck? MR.REISCI-[L: Correct. This is the survey that was submitted. I spoke to Mr.Jones,one of the attorneys involved,I asked that,and this is what was resubmitted. CHAIRMAN STRAIN: That's not the question. MR.BOSI: The question: The new seawall,the seawall constructed at this property would be the benchmark for where that elevation would start. CHAIRMAN STRAIN: Okay. That's what I'm getting at. Now,we've heard testimony that probably--I can't--I have to question how it was obtained,that it was measured by the tape measure to be closer to six--well,five-and-a-half feet or whatever. I would suggest we maybe have an 18-inch discrepancy here instead of a 24-inch. But it's just something to consider as we go through this,and maybe the applicant, by the time they get to the Board of County Commissioners,will have that resolved. I would highly recommend to them that,rather than wait any longer,they do it right away. With that,I don't have any more questions at this time,but we do have an opportunity for the applicant-- COMMISSIONER CHRZANOWSKI: Mark? CHAIRMAN STRAIN: Yes. Page 27 of 46 January 19,2017 COMMISSIONER CHRZANOWSKI: While you're on that survey,I'm fascinated,upper left-hand corner,in the center line of Tradewinds Avenue,there's a NAVD nail(sic)and a couple in elevation 2.8,and I thought every road in Collier County was at five minimum. So I--you know,that just fascinates me. CHAIRMAN STRAIN: Okay. This is the time when the applicant's representative or the applicant themselves, someone,you have an opportunity to make a rebuttal if you want to do so. I either need to have you acknowledge you don't have a rebuttal or you'd like to utilize the time. MR. SHAPIRO: Sure. Do you mind if I use this? CHAIRMAN STRAIN: No. Go right ahead. MR.SHAPIRO: I will be very brief,because I think a lot of the points were,I guess,well brought out and hit on. I would just like to bring out,and I think that the counsel here already has,is that this doesn't set any legal precedent as,of course, I believe most of you know,and I think that's what a lot of the objectors had issue with is that,you know,maybe this would set a precedent down the line. But as you know,under case law,these are done on an individual basis,so the ruling today doesn't set any precedent for future,and hopefully this problem won't happen again. Again,going by the staff report, I think,you know,there's enough blame to go around. You know,I am not saying that the petitioner's people,you know,maybe they should have done things more thoroughly, maybe the county should have reviewed it more thoroughly,but we have what we have here today,and we have a very unique circumstance because the permit was issued relying on the wrong setbacks,and because we have what we have here today,we can just make decisions going forward,and I just feel that the economic hardships of having to tear all that out and put a new pool in over somewhere between 18 inches and two-and-a-half feet would just be a very large hardship compared to the negligible impact that this has. So with that,I thank you for your consideration. CHAIRMAN STRAIN: Thank you. Okay. When we had some discussion earlier, I think a few of you indicated you had other questions you wanted to ask before we go--before we close the public hearing,so now is the time to do that. I can't remember-- COMMISSIONER SCHMITT: My questions are answered. CHAIRMAN STRAIN: Everybody else? COMMISSIONER CHRZANOWSKI: I'm all-- COMMISSIONER SCHMITT: Deliberate. CHAIRMAN STRAIN: Okay. Then we will close the public hearing,and we will entertain discussion before we go for motion,if there's discussion. Does anybody have any discussion items they want to bring up? Joe? COMMISSIONER SCHMITT: And folks in the audience,I was the community development administrator from 2010 to 20--correction,2001 to 2009. So during that tenure,of course,I was responsible for all the zoning in the county as far as all the review and the building department,zoning department,and other departments under that organization,which there's been some changes since. But I left in 2009. So I have a clear understanding of the process. And the only reason I bring up my background,because this is not the first variance in this area. I could tell you that because we've had similar situations in the past where,because of the code,there is confusion or there still continues to be confusion which,frankly,when I received the packet,I was--as I said,it brought back some tough times in that department. But that said,it is an unfortunate circumstance. The design professional's responsible. The homeowner hires design professionals who are licensed, and they're responsible,and I clearly understand that. As an engineer I understand that. The issue at hand,though,is this is an area for redevelopment. It is the original Naples Park. It's been an issue for probably 30 years in the county as this area redeveloped,and these--all these lots redeveloped primarily because of the location,not as much as Naples Park has,but all these lots are--were teardowns and rebuilds. The issue in this area,Vanderbilt Beach,was a continual problem when I was in the county seven years ago,as it is,I guess,right now,because we're faced with the same situation of,clearly, 10 pounds of Page 28 of 46 January 19,2017 flour in a 5-pound sack,because that's--most of these homes are maximizing the building envelope that's allowed. I do think it's an unfortunate circumstance but,however,from the standpoint of the variance,as far as I'm concerned,the house exists,the pool exists,and I'm ready to make a motion,if the--but I'll hold off until we make some further discussion. CHAIRMAN STRAIN: I'm glad you said flour. COMMISSIONER SCHMITT: I did. COMMISSIONER CHRZANOWSKI: The military term is blivet,b-l-i-v-e-t. CHAIRMAN STRAIN: Does anybody else have any discussion? (No response.) CHAIRMAN STRAIN: Okay. I have one item I'd like to discuss. Mike or Fred,would you put what I just handed you on the overhead. You need to back off a little bit. Keep going. Keep going. Right there. So we can read the whole thing. Section 9.04.03 is our criteria for variances.You've heard today that there are eight criteria;there are. And we've had legal counsel advise us from the opposition side to address their position on those eight criteria. Also,a case was referred to us,an old case from a 1982 activity. But we here—as that attorney, even the opposition attorney and as staff has opined today,we're here to adhere to the Land Development Code. The Land Development Code says this in the beginning of the criteria for variances: "Findings: Before any variance shall be recommended for approval to the Board of the Zoning Appeals,the Planning Commission shall consider and be guided by the following standards in making a determination." So while we've heard that they're hard and fast rules,you've got to show a hardship,it can't be this kind of hardship,maybe so,but at the same time we shall consider those and be guided by them.That means it's not mandatory. And,Mike, if you read this differently as Zoning Director,please let me know. But it's my understanding that it means what it says,that we're not bound by those eight items,but they are for consideration. MR. BOSI: My understanding would be--the interpretation that you've adopted would be my understanding;that these are the guidelines and with that emphasis upon the guidelines. CHAIRMAN STRAIN: Okay. And with that in mind,I have--I've listened to everything,and I've certainly tried to do all the research I can to understand how this happened. I can't see the benefit to force someone to tear down a home such as this. There's been no shown malicious intent in this. It was an--it was a human error. It was a mistake made by multiple parties. To take them to task for this for the cost that it would require for an item that does not set a precedent I don't think is necessary. Now,if we can show they purposely had misled the county,this was done intentionally,I'd say then whatever they deserve they deserve in regards to correcting it. But I have looked at all the records. I have looked at them probably more thoroughly than anybody in this room,and I can assure you nothing like that came out of any of those records. And they're records that this panel doesn't even have access to. They're in the county records department. I've pulled all the folders. There's nothing there that shows malicious intent. In fact,if anything,they were trying to continually keep up with things they needed to to make sure their approvals were consistent and reviewed by the county. So I certainly think that the variance is warranted in this case,whether the variance is 24--two-and-a-half feet--yeah,two-and-a-half feet or 18 inches. Either way,it really doesn't matter. The pool's there,and it should be approved. The only thing I would suggest is that a stipulation be added to do make sure that the intent of where these are allowed at this height,which is everywhere else,basically,but Vanderbilt Beach,that the decorative cladding or landscaping and a berm or a combination thereof of some nature is there,is put in front or applied to this wall to soften it,as the other jurisdictions would have--where they had done so in other parts of the county. Page 29 of 46 January 19,2017 And with that,that's all I've got to say. And if there's nobody else here,we'll close the public hearing and we'll entertain a motion. COMMISSIONER SCHMITT: I make a motion to approve. COMMISSIONER CHRZANOWSKI: I'll second. CHAIRMAN STRAIN: Will that motion be subject to the stipulation for the-- COMMISSIONER SCHMITT: Subject to the stipulations as discussed. COMMISSIONER CHRZANOWSKI: Second. MR.REISCHL: And the staffs stipulation,too. CHAIRMAN S TRAIN: Yes. COMMISSIONER SCHMITT: Staff stipulation as well noting that,subject to the 50 percent rule, that anything constructed thereafter would have to require compliance with the existing code. CHAIRMAN STRAIN: Motion's been made to recommend approval for the variance subject to staffs recommendation and the one stipulation we just discussed. Any further discussion? (No response.) CHAIRMAN S!RAIN: All in favor,signify by saying aye. COMMISSIONER CHRZANOWSKI: Aye. COMMISSIONER EBERT: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. COMMISSIONER DEARBORN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. Thank you,all,for attending this morning.We appreciate it. COMMISSIONER CHRZANOWSKI: Mark,could I ask something? CHAIRMAN STRAIN: Yes. COMMISSIONER CHRZANOWSKI: I was very impressed by the drone photos,and I would think that--seriously,I don't know why the county doesn't do that on a lot of these projects. And I don't know what it takes to legally do drone photos or buy drones,but it seems like,you know,we're the county;we ought to have that kind of photography coming to these meetings instead of the petitioner. COMMISSIONER DEARBORN: It's a great idea.The challenge is the FAA. I can tell you,as a realtor,they're really cracking down. There's a lot more criteria as to where and when you can fly. I've got to be honest,I don't know with that drone shot--and I'm not trying to open up a can of worms here,I've been told in the past those drones aren't allowed to fly over Vanderbilt Beach either or over that area. CHAIRMAN STRAIN: I would have to--I'd have to agree. The last thing I'd-- COMMISSIONER CHRZANOWSKI: A can of worms? CHAIRMAN STRAIN: --like to see is the government having the power of drones. COMMISSIONER SCHMITT: Stay away from that. COMMISSIONER HOMIAK: No trespassing and no drones. COMMISSIONER CHRZANOWSKI: We work with Luddites. CHAIRMAN STRAIN: Oh, Stan. COMMISSIONER SCHMITT: Stan,stay with Google Earth. CHAIRMAN STRAIN: ***Okay. That takes us into the next item,the only item remaining on today's agenda. It's the review of the Land Development Code for both the preservation,I believe,open space and conservation of golf course areas,and this will be a presentation made by staff,Caroline Cilek. It will be our second or third time around for some of these,and not the final. MS.CILEK: Correct. Good morning. Caroline Cilek,for the record. I would like to go through the amendment that has the most individuals here for public comment first, if that's okay with-- CHAIRMAN STRAIN: Do you know what that is,or do you want me to ask? Page 30 of 46 January 19,2017 MS.CILEK: I don't. If you could ask. . CHAIRMAN STRAIN: How many people are here for the golf course amendment? (Show of hands.) CHAIRMAN STRAIN: How many people are here for anything else but that? (No response.) CHAIRMAN STRAIN: Oh,I think it's the golf course amendment. MS.CILEK: Thank you for asking. CHAIRMAN STRAIN: Okay. Let's move right into that,then,Caroline. Just tell us what page of the staff report to start with. MS.CILEK: All righty. We are going to take a look at--the narrative begins on Page 24,and we have highlighted text that has been amended since we last saw you. And I'm happy to answer questions on the narrative. Mostly, it was just explaining the changes in the LDC text. There are a couple of errors,but we highlighted those and fixed them. CHAIRMAN STRAIN: That narrative was,yeah,pretty much just the corrections we talked about last time or the other things you caught. Does anybody have any narrative questions and on the--no? COMMISSIONER EBERT: Caroline, I will be calling you,though,because I missed the last meeting,and I know this is a very important-- MS.CILEK: Okay. COMMISSIONER EBERT: --subject for this county. So with the three different reports that we've had so far,I will be in contact with you,because I want to get it down right. MS.CILEK: No problem. I'm always available. CHAIRMAN STRAIN: Okay. Well,let's move directly into the LDC language. MS.CILEK: Super. That begins on Page 34,and we've added a new LDC section to this amendment and are amending 3.05.07,part of the preservation standards,and this is in regards to basically mirroring and supporting another provision that we're adding in the greenway area of the code so that it's consistent throughout. And I would like to explain it when we get to that portion because I think it will be a little easier to understand. CHAIRMAN STRAIN: Okay. That will take us to your--that's the first section of highlighting on Page 34,right? MS.CILEK: Yep. CHAIRMAN STRAIN: Then when we move to Page 35,we've got some more. MS.CILEK: So Page 35 we begin the 5.05.15 language. And I have a couple of small changes I'd like to just share with you so that when we bring the amendment back on the 30th,it's as clean as possible. We would like to change in B on B3,compatibility design review,that last sentence,we're going to remove that word"permitted."Permitted conditional use is a little bit awkward,and we're just going to start that sentence off with identifying the conditional uses. MS.ASHTON-CICKO: Caroline,also. MS.CILEK: Yep. MS.ASHTON-CICKO: I'm song. Right before that under B 1,2 and 3,it talks about utilizing a use, and I think you want to put"where the proposed use." So,for example,zoning actions,this section applies to a golf course constructed in any zoning district where the proposed use is not currently. MS.CILEK: Okay. MS.ASHTON-CICKO: And I would make that similar type of change under 1,2,and 3. CHAIRMAN STRAIN: Great. MS.CILEK: I could do that. So we're just going to clean up the last sentence of 3,and then we made the change to"constructed"consistent throughout A. My next changes are on Page 36 under the DAS,the Developer's Alternative Statement. And here our changes are under 2.B.I.A and B,and these were in reference to our discussion at the last meeting.And Page 31 of 46 January 19, 2017 staff was also thinking about,you know,how to relate the golf course to the HOAs that exist or may exist during the conversion process. And so this is what we have proposed for our language. I'd like to just get your feedback and see if this will work for the Planning Commission. CHAIRMAN STRAIN: That's better. Yeah. It gets us there. MS.CILEK: Okay. CHAIRMAN STRAIN: Last week, I think it was,or maybe early--yeah,I think it was last week--one of the land use attorneys,Richard Yovanovich,was talking to me about something else,and I could tell he was really excited about the golf course conversion standards. And one of the things that he mentioned--and it was a good point. I'll have to concede that—that there is no time frames for response to these. So if someone puts them on the table,how long have they got to sit there before they're considered qualified and met that criteria? And I think that's a very good point. We need to make sure it's tightened up that way. And I'd suggest by the time we come back we figure out a way to address that. MS.CILEK: Sure. In previous drafts we had proposed time frame in particular for 2.B.II,but it's my understanding that generally the County Attorney's Office doesn't support timelines. But I'd be happy to start that conversation again with them and see if it's something we can include. CHAIRMAN STRAIN: Okay. Well, I mean,I'm just concerned if,say,we require--well, obviously,if this goes through,someone's required to meet that standard. So there's a letter out there now on the Riviera golf course,for example. It says they want$3.5 million,and they're offering it to the county and maybe others and international investors and all this. Well,how long before we can say,okay,they offered it to these various groups,there was no response,yet they go and sell it to another builder or somebody that tries to put homes there,and the other groups say,wait a minute. We haven't responded to that offer yet. I think out of fairness to everybody,a time frame ought to be established,and maybe there's a way the County Attorney's Office could see fit to find something to include here. If not,then we need,I guess,the legal--I'd like to know the understanding how we deal with it legally in regards to when does an offer expire. MS.ASHTON-CICKO: Well,I'd prefer not to put a time limit in there and to just apply a reasonableness standard. This is something they have to prepare a report as to the alternatives and what they did,and that's something that you can question as they go forward. But I can't imagine that,you know,they'd be able to get through the application process with only giving them a couple weeks,because we know how it takes--how long it takes to get through the process to begin with. So--but if you want a date,we'll come up with a time frame. CHAIRMAN STRAIN: Well,I would just want to make sure that--and I'm sure--Mr.Yovanovich is here today,so I'm sure he's going to jump in. And now that I brought this up,I'm sure we'll hear more,but I would like to make sure we have a reasonable understanding on how this unfolds so that,for example,the offer that's on the county right now from the owner of Riviera,that's how this one came about. They sent a letter over to the commissioner and said,we're considering selling this. Is the county interested in buying it? What if the county doesn't respond for two or three years and they decide after they've sold to somebody else we want to buy it? I think that's the scenario I'm concerned about,so... MS.ASHTON-CICKO: I mean,I would be reluctant to put a period longer than 30 days after the date that they issue an offer letter because I think that we could have some problems with,you know, interfering with the transfer of property if they're looking to sell it to other parties and,also,I don't want to get into takings claims or anything like that,so... CHAIRMAN STRAIN: Okay. I understand. Thank you. MS.CILEK: Okay. CHAIRMAN STRAIN: That's all I've got to say on it. Never mind. We'll listen to Mr. Yovanovich's argument and go from there. MS.CILEK: Okay. On 2.B.III,the Conceptual Development Plan,we would like to just tidy up the sentence structure of the first sentence. We're going to break it into two parts. It's a compound sentence. It needs to be a little easier to read,so we'll share that with you at the next--no intent changes,just making it a little bit simpler to understand. Page 32 of 46 January 19,2017 That's all the changes I have on 36. CHAIRMAN STRAIN: Okay. MS.CILEK: Page 37,the cross-reference in IC is incorrect. Line 20 needs to be Subsection G, which is the greenway. It moved. One thing I did want to ask you about is 3.D,Line 32. This is something that was an oversight on my part. At one of the previous Planning Commission meetings,we had talked about removing the word "reasonable"when talking about what the stakeholders are providing as input and that all input should be addressed. And in our admin code sections,we're actually going to get a little bit more detail about that,and we're going to say it be addressed in categories. So not every single question has to be listed out,but rather this category of question and provide a paragraph response. So that's a little easier for the applicant to be able to do that. But here we did not remove the term"reasonable." So I think on Line 32 in this section,we need to make this consistent with the following section and remove the"reasonable"term,because we want all input to be responded to,whether it's reasonable or not. CHAIRMAN STRAIN: Okay. MS.CILEK: 4.B, Line 49 and Line 50,we have updated the language as requested by the Planning Commission and the County Attorney's Office,and this was regarding basically prohibiting deviations from this section. And that's all I have on that page. Anything else? CHAIRMAN STRAIN: No. MS.CILEK: Okay. Page 38,just some cleanup; in F.4 we're missing a couple small words. And then on Page 39,this is where we get into the good stuff,following up with our conversations regarding preserves on the golf course. All right. So down on G.3,Line 49,we took a comprehensive look at preserves. And I worked with our environmental staff to prepare this language.And we have two different concepts going on here.One is where we have isolated preserves less than a half an acre in size. We are supporting them to be able to re-create a preserve greater than that half an acre. Currently when that's done,a PUD deviation has to be requested and approved. Here we're saying you don't have to go through the PUD deviation request;you can just do that automatically. And then that's why we added 3.05.07 to this amendment so that it allows for that as well in that section. MS.ASHTON-CICKO: I do have a recommended change on this section. MS.CILEK: Sure. MS.ASHTON-CICKO: Caroline asked to meet with me,but I wasn't available. Under Line 47,I would say, "The following preserve standard supplement"in place of"requirements are in addition to." So it would read,"The following preserve standard supplement,those in the LDC Section 3.05.07." MS.CILEK: That's great. MS.ASHTON-CICKO: And then I would combine the two sentences in A. So under Line 51,it would say, "Consolidated into appropriated preserve that may be greater than one acre in size in the aggregate to meet the preserve requirement,"and then you would delete the second sentence that's on the top of Page 340. MS.CILEK: We can do that. MS.ASHTON-CICKO: Okay. Thank you. CHAIRMAN STRAIN: Okay. Anybody? MS.CILEK: Okay. And then on Page 40,the second concept is looking at existing preserves.And we've broken it into two sections to deal with straight zoning golf courses and PUD golf courses,because they are very different. So in the first one,B.I,we're looking at a straight zoning or conventional zoning district,the GC,or another zoning district that's straight zoning. And here we're saying that they may utilize that preserve that's on that golf course toward the new development,because it's a self-contained parcel of land zoned,and it's rezoned,and they can use that preserve as they move forward. Page 33 of 46 January 19,2017 Under B.II,we're looking at a PUD. And here,when they put the preserve, it was in connection with the existing development within that PUD project,and so they would be able to use excess preserve on the golf course but not the preserve for the current PUD project because it's already been utilized by what was approved previously. Any questions on what we're proposing for the preserves? (No response.) CHAIRMAN STRAIN: Nope. Before you go down to H, I got a couple questions that probably fit into this category. MS.CILEK: Sure. CHAIRMAN STRAIN: You and I touched on them a little bit,and I think the last meeting I asked about them. First of all,transportation. Many of these golf courses are within communities that are somewhat restrictive as far as the size of the roads go. They have existing density in there. We haven't addressed how that's supposed to be handled or looked at. Likewise,many of the golf courses only have small accessways to the roadways because they used them for either golf carts or maintenance carts. Well,putting a road system in,that's substantial. And I learned at a meeting I was at last week,it was--that some of these side--where they say a golf course was going to go in and they didn't have enough access,wide enough accessway,they wanted to pick up enough land to make it wide enough for a roadway. Well,the land on both sides,a lot of times, is deed restricted for single-family or residential housing. All that is going to come into play,and we haven't addressed it here. Is that something that--how would that come out of this process?Because it would be good to know that early on. If I was the applicant,I'd want to know,okay, I better get over some of these thresholds before I even go out to these people. We haven't addressed transportation,so--have you thought about addressing it in some manner? MS.CILEK: Well,two things to remember. One is that the Conceptual Development Plan on Page 36,which is requirement of the DAS and then is taken through the stakeholder outreach meetings and then is utilized through the land use petition process,does require that existing and proposed roadway and pedestrian systems are identified. So they're going to have to figure out how they're going to--what roadways are going to be used and how they're going to access this project.And then from there,our idea was that the standard LDC requirements for transportation would apply to the project. CHAIRMAN STRAIN: Okay. So that means that their widths for those accessways would have to meet our minimum standards and that there's not any exceptions into this process. MS.CILEK: Correct. It would be what is already in the LDC,and they would need to show that they would meet those. CHAIRMAN STRAIN: Okay. And I-- MS.ASHTON-CICKO: But I believe if they're doing,like,a PUD amendment,they could ask for a deviation to,you know,reduce the widths like they do with most petitions. CHAIRMAN STRAIN: Right. And that's just something that would have to be considered on it's own merit. MS.CILEK: That would be-- MS.ASHTON-CICKO: And as you know,but maybe the others don't,as part of our review,we do check to make sure that they have legal access. We confirm that on all the projects. CHAIRMAN S DRAIN: But your legal access in the way you look at it is--you analyze the width of the accessway in regards to the minimum standards of the code,or you take into consideration the deviation--how do you evaluate? MS.ASHTON-CICKO: We'd be confirming that they have an easement that allows them to use those roadways for access. CHAIRMAN STRAIN: Those accessways for,like,a public road or private-- MS. ASHTON-CICKO: Or a private road. CHAIRMAN STRAIN: --or a private road,because a lot of times those may be restricted to golf course access only. In fact, I know one golf course that is deed restricted and so that those connections can Page 34 of 46 January 19,2017 only be used for golf maintenance vehicles or golf carts. That,then,wouldn't meet your standard as far as public access roadway that had to be redone. MS.ASHTON-CICKO: They'd have to clean that up through the courts. CHAIRMAN STRAIN: And at the same time,the width of the roadway would be something that you wouldn't necessarily--would you care about that in your legal review,or would you defer that to the review later on? 1 mean,if they come up with a 30-foot access,would you still say--and they actually have it for road use and vehicles,but that can't meet our standard. So how would that be approached by your department? MS.ASHTON-CICKO: Well,I would advise staff that they have a 30-foot easement,and I wouldn't be looking at the widths myself. That would be up to staff to say that's insufficient or to the applicant to request a deviation that's going to get down that low,but that will be a Board decision. CHAIRMAN STRAIN: Then the second--go ahead. MS.CILEK: Real quick. Thank you, Heidi,for mentioning that. Yes,staff did contemplate that the deviation process may be utilized for transportation. But a thing to consider was that it would be required that the applicant identify all the deviations either at this zone(sic), if they know of them,or at the NIM. CHAIRMAN STRAIN: That's right. It is at the NIM. Thank you. Then the second item I want to make sure we somehow think about,some of these golf courses are not contiguous,and they're little pieces. We ran into this about a year ago on one of them that came through, and it just dawned on all of us in the pre-ap that,wait a minute,you can't do a PUD.They don't connect. To do straight zoning on five different pieces might be real awkward. So how—and we would--if this were to happen,the best thing to creativity--creative-wise proceed would be for the public's benefit and for this board and the Board of County Commissioners is to consider this as a PUD use. That way we can, you know,be creative on how it's protected in the neighborhood. But we can't get there the way it is now. So I know you were going to look into that and try to figure out a solution for it. What have you come up with? MS.CILEK: Well,I would be happy to work with the County Attorney's Office to see if we can include a provision within 5.05.15 to allow for PUDs to be multi parcels and go through the process. Due to advertising requirements,we weren't able to advertise that section of the code,which is in Chapter 4,to ensure consistency with both sections. We could--I can work with the County Attorney's Office and figure out what's the best path for it to address that,but we're not going to be able to do Chapter 4 by the 30th,which is just in a week and a half away. CHAIRMAN STRAIN: Okay. Well,maybe we can just figure out a way it can be addressed then. MS.CILEK: Sure. We will follow up on that. CHAIRMAN STRAIN: Okay. Anybody else have anything on that? (No response.) CHAIRMAN STRAIN: No. Okay. Anything else,Caroline? MS.CILEK: I just wanted to go through H real quick,which is the lighting. So we put together a bit of information about the international Dark Sky and Dark Skies concepts in your packet. Hopefully,you were able to take a look at that. And from that research,we were able to provide you language in H. We did change it a bit. And at the end of the day,you know,lighting,depending on the type of use,can be really specific. So we really do want it to go through the process to figure out what is best for compatibility with some overarching goals of making sure that there's reduction of glare and sky glow. CHAIRMAN STRAIN: Catches the finers points of it. Okay. COMMISSIONER DEARBORN: I have a quick question just for clarification. MS.CILEK: Sure. COMMISSIONER DEARBORN: So H,Line 35,34,excessive glare, I get that. Light trespass and sky glow. Help me understand the light trespass part of that. MS.CILEK: Yes. So light trespass is when your light that's on your property continues over into Page 35 of 46 January 19,2017 the other person's property. COMMISSIONER DEARBORN: Okay. MS.CILEK: So we,as the Planning Commission knows,have gone through several PUDs where they are addressing this issue,and they do it by a distance requirement or by having a shielded light source. COMMISSIONER DEARBORN: Okay. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: No. Caroline,I think that takes us just about to the last page,then,doesn't it? MS.CILEK: Sure. On Page 40 I'll just mention,all of 10.03.06 is new,but it's all just implementing the standards in the section. I'll be happy to answer any questions. We tried to make no changes; simply share what needed to happen from the notice perspective. And this information will also be in the administrative code sections as well. CHAIRMAN STRAIN: Great. Thank you. Mike? Oh,before we go to public speakers,is there any questions from the Planning Commission of staff? (No response.) CHAIRMAN STRAIN: Okay. Mike? We're going to start out with the registered public speakers, then if anybody else is not registered and you'd still like to speak,we're here to listen to you,so... MR.BOSI: Chair,there's two registered speakers. Mr. Edward Tappen and Diane Rupnow. CHAIRMAN STRAIN: Mr.Tappen,now you're up. MR.TAPPEN: Tappen. CHAIRMAN STRAIN: Tappen,thank you. MR.TAPPEN: Thank you. My name is Edward Tappen,T-a-p-p-e-n. For the last year,I have been an advocate for having Collier County establish common municipal golf courses. Collier now has none. I believe that I am a common person that is one who lacks the characteristics of having power;therefore,I have written letters,asked for advice from others,attended county meetings,and written to people in power positions and collected a great deal of information. I love golfing. Like millions of average and/or common people across the world, I would rather be golfing today,any day. Many common people in Collier County,including visitors,cannot afford to play golf in Collier County.Imagine that. In fact,joining a country club is out of the question for most common people like me. I am a single golfer who has paid$900 more annual fees than the player I played next to and who joined as a couple in one of the smallest clubs in Naples. In April of 2015,I began--after being taken advantage of,it came to an end last year,so I resigned that small country club September 2015. Many country clubs charge more for single inequity members than each golfer who joined as a couple;however,Lakewood seemed to be a higher percentage,and my appeal to the directors or owners was denied. In April 2016,Lakewood Country Club news told members Lakewood club--golf club is definitely not for sale,is not to be sold. Because Lakewood Country Club is owned by approximately 66 equity members and found that they had financial problems,they voted to sell the club. A recent letter to the editor said it is now listed for sale at 2.9 million. Before the 66 members voted to start negotiations for sale,they were told it probably would be worth two or two-and-a-half million and that as of this time,our lawyer states that--this is a quote;our lawyer states that any remaining funds available,(sic)all commitments are met,will be equally shared among these 66 equal members. The current loan balance is approximately$170,000. Actually,the county market value is much less than 2.9 million. Even when Lakewood is having financial problems,the board of directors has not increased their annual fees for more than five years. Their management of the club and getting members to vote seem questionable when they voted yes. I believe that the county could negotiate to save golf land without rezoning. That's my appeal to this board,this commission. I have collected a lot of information during the past years,this past year,and will gladly share it to Page 36 of 46 January 19, 2017 the Planning Commissioner--Commission,you. I have collected--letting greedy people profit and changing natural land would be a shame. The Planning Commission should at least offer to negotiate with owners and find out the facts,then provide commissioners a plan to save the natural lands. In addition,when and if the county owned the land,it could hire professional managers and often--and offer good workers that are maintaining the courses at this time. The workers at,for instance, Lakewood have been exceptional and,under management of professionals,could do wonders. The county might even get an award from the Audubon intentional program and be designated as a certified Audubon Cooperative Sanctuary. See the paper from yesterday or the day before. I think it was yesterday. Another municipality provided--other municipalities have provided funds to have golf courses since 1899. Why not Collier? Bob Cooling who lived at Lakewood and was on the founding equity--one of the founding equity members said when he heard about Lakewood being put up for sale,the club--he said--and this was recorded in the minutes--the club needs a financial expert. The answer in the minutes of that meeting were,this has been investigated. Mr.Cooling passed away in June 2016. That concludes what I have to say. I have copies of this to share with whoever. CHAIRMAN STRAIN: Well,there's a couple things you probably could benefit from being aware of. The request to change the language in the code to do what we're being asked to do today would assist in getting--accomplish maybe what you're asking for. You want the county to consider purchasing a public golf course,whether it's Lakewood or one other. One of the steps that are required here,as these courses come up for conversion,the county would be considering those. It doesn't mean they're going to buy them, but that option would be on the table. The documents that you have would be better held until that process starts. This is just the process to get to where you want to go. If this gets approved,when they convert that golf course,one of the steps they have to do is offer it to the county,they have to offer it to the homeowners association, if they're interested, and then the general public or whoever else they want to offer it to at that point. So some of the issues you're asking for could be attained once this language is adopted,and that's what this meeting today is about is getting that far. So it's the first step,and it may actually help what you're trying to do. MR.TAPPEN: I understand,but as a common person trying to figure out why they are--I'm sure that money buys what people want. And what I'm saying is that if the rezoning goes on to a--to have people sell their golf course,then the land is gone. CHAIRMAN STRAIN: We don't disagree,but these steps will help the county at least consider that golf course for a purchase. That's--so that goal is somewhat in line with what you're talking about.We just need to get this language going first,and then that will happen. Other than that,this board doesn't make any decisions on purchases by the county. That's made by the county commissioners.But I think this would help that process get started,so... MR.TAPPEN: Thank you very much. CHAIRMAN STRAIN: Thank you,and for your patience in waiting today. I appreciate this. Mike,next speaker? MR.BOSI: The next speaker,and it's the last official speaker slip,is Diane Rupnow. MS.RUPNOW: Thank you. I've read the draft,and I'm pleased that stakeholders will have an opportunity for input in this process. I think that's a very important feature. If the intent of this amendment is to identify and facilitate the process of converting preexisting golf courses into non-golf course use,why isn't that language in the document,is my question. What would be wrong with including a statement that this conversion amendment applies only to preexisting golf courses that were in business prior to the April 12th,2016,moratorium and not just to a golf course that's in the permit process? That's my only question. CHAIRMAN STRAIN: I'm not sure--well,when we get done with public speakers,I'll ask staff to address your question,okay? MS.RUPNOW: Okay. CHAIRMAN STRAIN: Do we have any other registered public speakers? Page 37 of 46 January 19,2017 MR.BOSI: None. CHAIRMAN STRAIN: Okay. Is there any member of the public who has not spoken that would like to speak on this matter today? (No response.) CHAIRMAN S IRAIN: Okay. Caroline,you heard the lady's question. I'd like to make sure we get it clarified. If you're not clear on the question,we can have it asked again. It was a little fuzzy,but did you understand where she was going? MS.CILEK: Well,I think we can say that moratoriums,basically,do not allow people to come forward with new pre-application meeting requests and to submit rezones and the like. CHAIRMAN STRAIN: Or golf courses. MS.CILEK: Or golf course conversions,period. So it would have applied to any golf course that existed as of,you know,April 12,2016,date. COMMISSIONER EBERT: So a working golf course as of April,okay. MS.CILEK: Yeah. Any of those that were previously approved or under the moratorium or if they were seeking to convert. CHAIRMAN STRAIN: Okay. And that moratorium is up in--April l lth,right? MS.ASHTON-CICKO: The language that you are considering is golf courses that are constructed. COMMISSIONER EBERT: Already in use? MS.ASHTON-CICKO: That's the applicability. CHAIRMAN STRAIN: No. Constructed. MS.ASHTON-CICKO: If it's built it doesn't-- CHAIRMAN STRAIN: If a development has built a golf course,then that golf course would fall under this new language. MS.CILEK: Right. That's the second part of the concept,I would think. CHAIRMAN STRAIN: Right. And I hope that answers-- COMMISSIONER SCHMITT: The amendment--to clarify the question,the amendment covers all aspects,whether conversion or retention under some other type of management,meaning the county could take it over or somebody else. I mean,this is not an amendment strictly just to redevelop a golf course. It's also an amendment to allow other options for retention in other uses. MS.CILEK: Sure,yes. Through the process. COMMISSIONER SCHMITT: I think that was your question,was it not? CHAIRMAN STRAIN: You'll have to come up and use the mike again. COMMISSIONER SCHMITT: You'll have to come up. MS.RUPNOW: I get confused by all this technical language. All I want to know is does this conversion apply to golf courses that were in business,and it was my understanding that there are quite a few golf courses that maybe haven't been making a profit and,therefore,they want to convert their golf course to some other use. So is this conversion process going to apply to just golf courses that were in business before this moratorium? CHAIRMAN STRAIN: It will apply to all golf courses. All golf courses. So whether they're in business or not. We have declining golf courses that are no longer in business. It applies to them as well; every golf course. MS.RUPNOW: I'm talking--I'm referring to specific land that is adjacent to the subdivision in which I live that is permitted to build a golf course,but those of us who live next to this land--and it's being cleared under the guise of building a golf course,but we have reason to believe that's not the true intention of the developer. CHAIRMAN STRAIN: The words are constructed. So the course would have to have some kind of permitting for the golf course or something, I would imagine. MR.KLATZKOW: I don't think that's what she's saying. What you're telling me is that you're concerned that somebody said they're building a golf course but they're really not going to be doing that? MS.RUPNOW: Right. MR.KLATZKOW: So the golf course has not been constructed. Page 38 of 46 January 19,2017 CHAIRMAN STRAIN: Right. MS. RUPNOW: No. The land is being cleared,but the golf course has not been constructed. MR.KLATZKOW: The question is, if you're zoned for a golf course but you haven't constructed it, are you still part of the moratorium? CHAIRMAN STRAIN: Oh, I don't know about the moratorium. You're not part of the conversion process because you wouldn't have triggered it because you're not constructed. So that's what it means. MS.RUPNOW: Okay. So thank you. COMMISSIONER SCHMITT: And a PUD may have--it's the language-- CHAIRMAN STRAIN: We're experienced with that,aren't we? We have a lot of golf courses. COMMISSIONER SCHMITT: A PUD may have in its language to allow for the golf course to be constructed but it--there's always--if they haven't constructed it yet,there's always the option to come in and do a re-plat and eliminate the golf course issues. MS.RUPNOW: I understand that. I understand that. Thank you. COMMISSIONER CHRZANOWSKI: Which takes a public hearing and all the neighbors are notified and everybody-- COMMISSIONER SCHMITT: No,not if it's internal to the PUD. They made--if it's a PUD that has never really laid out a golf course and designed it,there's nothing to say that they have to build that golf course. COMMISSIONER CHRZANOWSKI: I've never seen a PUD that doesn't have some kind of wording in it that says we're going to build--to get the PUD,you have to say I'm going to build a golf course or something. COMMISSIONER SCHMITT: We've had PUDs clearly approved that have now since evolved and decided not to build a golf course. Isles of Collier was approved with a golf course intent,and then when it came in for initial plat and final plat,it does not have a golf course. Naples Reserve is another one. COMMISSIONER EBERT: Naples Reserve,that's the one I was thinking of,but they changed that. CHAIRMAN STRAIN: Yeah,that's the exception,not the norm,but there are cases like that. COMMISSIONER CHRZANOWSKI: Thank you. CHAIRMAN STRAIN: Thank you. There are no other speakers. Anything--any members of the commission have any questions of anybody at this point? (No response.) CHAIRMAN STRAIN: Okay. Caroline,I appreciate it. I think we're done with the golf course one. And I want to ask this panel what they'd like to do. I think we can finish this up rather quickly. We only have the preservation standards left. So I'd rather suggest we not take a lunch break and just finish right up,or if we get here past--if we're not close to being done by 12:15 or 12:30,we'll take a short break. But I'd like to work through lunch if that's okay. COMMISSIONER DEARBORN: Second. CHAIRMAN STRAIN: Okay. COMMISSIONER HOMIAK: Third. CHAIRMAN STRAIN: Caroline,that concludes the discussion on the golf course language. It's going to come back again for a final discussion on the 30th at 5:05 in the evening; it's anticipated to be final. So that will be at the point where we would leave the language in place,we'd recommend it to the Board of County Commissioners to proceed in their manner. So hopefully we'll be done with it by then. So okay. I can't take questions from the audience,sir. 1 Now we're going to move on to the-- COMMISSIONER SCHMITT: You can ask staff. CHAIRMAN STRAIN: Yeah. You can ask staff members,if you'd like, Mike or somebody else. We can move on to the next item on the agenda which is the preservation standards that were presented to us as part of this. MS.CILEK: Let me pull up the amendment. Page 39 of 46 January 19,2017 CHAIRMAN STRAIN: By the way,Caroline,that was good information on Dark Skies. MS.CILEK: Oh,thank you. CHAIRMAN STRAIN: Good read. Thank you. The contrast between the way the light poles are unshielded and shielded makes that understandable why we try to make sure they're all shielded,so that's a good move. MS.CILEK: Images are helpful. It's exciting what the county's embarking on with regards to lighting standards. Okay. The preservation standards amendment starts on Page 8. And I'll just do a little recap for you. This amendment was brought before you last year following board direction to look at the endowment payment amount for Conversation Collier lands both for the monetary option and then also for the land donation option. So this should be somewhat familiar. We were working with you-all,and you provided the recommendation that,more or less,you wanted to promote on-site preservation rather than offsite preserves. So we went back to DSAC and CCLAC and worked with their subcommittees to put together numbers that would promote on-site retention of preserve lands. So I have staff here with me to help answer any questions. The narrative should be very similar to prior amendment--prior amendment regarding the endowments;however,we did work with DSAC,and they actually suggested that we take a look at the initial section to the offsite,which is the applicability,and work through that and really kind of tweak it to meet the original intent. My experience with working with Summer has been that she has to reiterate the idea behind what is supposed to go offsite when that is being asked,how much land should be able to go offsite. And so the initial LDC amendment is addressing that. CHAIRMAN STRAIN: Okay. How do you want to walk through it just as far as our review through the narrative? MS.CILEK: Sure. You want to go through the narrative or LDC section text language? CHAIRMAN STRAIN: Let's see if there's any questions on the narrative first,then we'll move into the text after that. MS.CILEK: Perfect. CHAIRMAN STRAIN: In the narrative section does anybody have any questions? (No response.) CHAIRMAN STRAIN: No. Good. We'll move right directly into the text. MS.CILEK: All right. So what I was just discussing was with regards to H.1.F.1,applicability. So here we're really guiding what should be allowed to go offsite and took a look at the different criteria that one would have to meet to be able to go offsite and really geared it towards small preserves,small aggravated (sic)language. Yeah,small preserves. CHAIRMAN STRAIN: It's one acre or less. COMMISSIONER SCHMITT: One acre or less,yeah. MS.CILEK: And then there's specific provision for PUDs. CHAIRMAN S TRAIN: Under the applicability where it says existing,are we that far yet? MS.CILEK: Yes. CHAIRMAN STRAIN: Yes,H. It would be Line 36 and 39. Existing portion of preserves located within single-family platted lots. If they're existing,why are we even wanting to convert them?I mean, what's the basis behind this? What's the reasoning behind it? MS.CILEK: Sure. One is that this is an existing provision already in the code,so we didn't want to remove it,and that my understanding is that there are several residential subdivisions that were approved many moons ago that allowed for and,you know,identified the preserve on the single-family platted lots; however,staff feels that there's a small amount of preserve there and that they no longer need to retain it. It doesn't benefit the,single-family homeowner or the preserve. It's hard to maintain it. CHAIRMAN STRAIN: Mike,you're familiar--and it was before Caroline's time--Twin Eagles. Do you remember what they did? They took their lots and tried to find a way around the rules at the time,I believe,and included within the lots their longer and deeper sections of the golf course,and I believe even Page 40 of 46 January 19,2017 preserves. How would they be affected by language like this? Because they did that to circumvent, I believe,their requirements at the time and still retain what they were supposed to. They did it in a different way. I'm not saying it was bad or good. But I don't want--I want to make sure that if that was a requirement to get to where they got,they couldn't come in and re-plat and do away with some of this. MS.CILEK: And I could have Summer speak on this as well. She's is here. CHAIRMAN STRAIN: Okay. The easiest way to get to the answer is all I'm looking for. COMMISSIONER EBERT: It wasn't only Twin Eagles. Da Vinci and Olde Cypress also did the same thing. They never put in preserves,so the county made them put 20 feet on each property. CHAIRMAN STRAIN: We're just going to take away your backyard. COMMISSIONER EBERT: Well,it wasn't mine.It's a different division in there. I live on the preserve,so... CHAIRMAN STRAIN: Summer? MS.ARAQUE: Summer Araque,Principal Environmental Specialist,for the record. So this is existing language,and I think we were trying to clean it up. I think your points are very valid. They would still need to meet the minimum requirement. So Audubon Country Club is actually a good example. That's a PUD. And they're somewhere in the 50 to 60 percent range on their preserve provided. So they're well above their 25 percent minimum. But there are certain lots in there that have strips on the back,and that's an example of one where this could come into play. But I think the examples that you all have brought up are good examples to see how this would apply to those. So if we think about Twin Eagles,they would still have to maintain their minimum requirement-- CHAIRMAN STRAIN: Overall. MS.ARAQUE: --overall. But we could kind of think through how this particular section would affect those projects that you just mentioned to make sure that we're not creating a loophole. CHAIRMAN S I RAIN: And it's coming back on the 30th,so between now and then,if there's an issue there,please just flesh it out and see what we need to do with it. MS.CILEK: Okay. CHAIRMAN STRAIN: Down under D.1,essential service facilities other than parks--this is from your exceptions--I would like to suggest we need to say essential service facility,governmental facilities. And I know that's existing language,but there's a reason for that. We've got a lot of things out there that aren't governmental that are considered now essential service,and that's changing over time, so there's no reason we shouldn't be trying to keep up with it with the code. MS.CILEK: Sure. We can make that change,and I'll take a look at the definition as well. And,actually,I was looking at the wrong section. I did want to mention that the intent that we're adding is under H.1.F,and there on Line 11, 12, 13,we are identifying that these can go offsite because they are small and isolated and less than an acre. I didn't read the full sentence. I was looking in the wrong area. CHAIRMAN STRAIN: Okay. The next couple of pages,anybody have any questions? COMMISSIONER DEARBORN: No. MS.ASHTON-CICKO: Are you on Page 19 yet? CHAIRMAN STRAIN: We could be;sure. What would you like? MS.ASHTON-CICKO: I have a requested deletion of the double--or the triple I on Page 19, starting at Line 3,because that's already covered under 9.03.07 of your LDC. So I would request deletion of that entire paragraph. CHAIRMAN STRAIN: Okay. COMMISSIONER EBERT: Where did you say,Heidi? MS.ASHTON-CICKO: It's on Page 19 starting at Line 3,and it's the whole paragraph under triple I. COMMISSIONER EBERT: Okay. MS.CILEK: Thank you for letting me know that. CHAIRMAN STRAIN: And I don't have any other issues till Page 21. Anybody else? (No response.) Page 41 of 46 January 19,2017 CHAIRMAN STRAIN: Page 21 refers to a post-development value. I really think that's kind of unfair. And you and I have talked about this,so I would suggest predevelopment. MS.CILEK: Okay. So-- CHAIRMAN STRAIN: And we establish at what time frame in predevelopment that would be. MS.CILEK: Okay. One thing to recognize is that there are two different recommendations going on here;one is from DSAC,and the other is from CCLAC. I just want to bring that to your attention. They are different. So the DSAC recommendation is on page--starts on Page 19,and then the exact same language but with different recommendations for how to address monetary payment in the land donation for CCLAC is on Page 21. And we do have one thing we want to bring to your attention with regards to the CCLAC one. And I'm happy to revisit how the numbers were derived from DSAC, if that would be helpful at all. A little bit of that history goes back to the other amendment,so just let me know. CHAIRMAN STRAIN: And I--you know,what this is going to boil down to are the DSAC's recommendations,the Conservation Collier's recommendations,and then what we suggest as either one or the other or a compromise. And I was wondering,between now and the 30th,could staff lay this--I know you've got a table in here,but we ought to lay this out and figure out a way to simply understand it,because putting it in the text of the LDC and then trying to analyze it there just doesn't cut it very easily. MS.CILEK: Okay. CHAIRMAN STRAIN: So I think it's going to boil down to numbers at this point: How we measure numbers,when we measure the numbers,and what those numbers are. MS.CILEK: Okay. We can put in the next packet the numbers of how each of these subcommittees arrived at the numbers. They start with the same one,but then how they look at it over a 20-year period is different. And we can try to just streamline it a little bit based on what staff recommends as well. CHAIRMAN STRAIN: You know what you did in the architectural standards,when you had that--and Jeremy did that colorful table and he said,here's the standard,here's the standard,and here's the options or something--I forget how he worded it--that was a perfect side-by-side comparison to explain how the language works out in reality based on the calculations. I would think it would help us get our arms around it. MS.CILEK: Okay. We can do that. Looking at the recommendations for the monetary payment for CCLAC,though,you did have a suggestion regarding a different appraisal option than what is here. Do you want to repeat that for me,please. CHAIRMAN STRAIN: You're suggesting under CCLAC,a monitor payment shall be based on the amount of post-development appraisal value. So that means the developer goes in,goes through the risk of getting all the entitlements,and they're rewarded by saying,now,that's the value you're going to have to use to do the preserve offsite when you start planning your project. I think that's a penalty,not an incentive.And I would suggest we look at predevelopment within a year's time of when the first DO is actually constructed--first construction tacked a DO on the site. For example,we have people in town who have owned property here for decades and decades and decades,so it can't go on the time when they brought the property 40 years ago but certainly within a year,say,prior to the development period that they're moving forward with in which they're requesting the preservation;that entitlement period would be better than saying after you've gone through the risk of getting your entitlements, now we're going to penalize you for it by using that number. I just don't think that's the fair way to go. COMMISSIONER DEARBORN: Mark,I agree. MS.CILEK: Another thing to consider for this option would be just a set fee based on,like,the average cost of land in the urban area or the rural land grant,because they are different. CHAIRMAN STRAIN: Right. And that--and you and I talked about that. That is going to have to be,though,tied to a nexus that's rationale. And one of the items we may want to look at in this analysis,sort of this table that would be a little simpler way to approach it,is look at the AUIR.And we have regional and community parks. We know what we pay in the rural area,and we know what we pay in the urban area. We ought to look at two standards for there. So if you've got a project in the rural area,your standard for contribution, if you want to just use--instead of looking at the appraisal route,this could be it. Urban Page 42 of 46 January 19,2017 area would be a little different,obviously. Y So I would suggest if we're going to tie it to a fixed fee,it's tied to a fee that we've established as valid,and we do that through the AUIR. MS.CILEK: Sure. Yeah,staff would be happy to prepare those numbers for you. Another thing to consider is that based on my work with Alex in looking at those numbers,it's very--for the urban one,it's very similar--the AUIR number is very similar to what her experience has been in purchasing that land. So we have evidence that that is even a more valid number based on top of how they get to that just from the AUIR process alone. So we can support that. It would simplify this process a bit.Appraisals can be a lot of extra work. CHAIRMAN STRAIN: It would,and maybe that's why we should look at this option as another option. I'm more concerned about validating the value instead of just coming up with an arbitrary staff value saying,well,let's use 250,000 or 200,000. I'd rather see a valid--I mean,we go through a lot of effort in the AUIR to try to justify those numbers. MS.CILEK: And we can put that in the table for you. CHAIRMAN STRAIN: Okay. Those are a couple items that will give us some-- MS.CILEK: And then another recommendation just from a staff perspective--and I have chatted with Alex about this--is that in this 4.A,after the post-development appraisal value is discussed,we talk about a 125 percent would be the endowment amount for the monetary amount. It would be really great for the LDC if we could streamline it and just put one number forward for endowment for both the monetary and the land donation so that they're the same,and everybody knows what the endowment amount would be. CHAIRMAN STRAIN: So instead of 125 percent,use a set value? MS.CILEK: Yes. And we could use the one that we can discuss in the land donation. That's what DSAC did. They proposed one standard endowment amount,and that way everyone would know.They're different. DSAC and CCLAC have different ones,but DSAC did propose one number so that it's easy to understand what you have to provide as the endowment. CHAIRMAN STRAIN: I have no--I think that would be a good way to start. MS.CILEK: Super. CHAIRMAN STRAIN: At least we'll look at it. I'm not sure what will fly,but we'll have numbers to look at. MS.CILEK: Yes. CHAIRMAN STRAIN: Then--Patrick,you look like you've got a question. COMMISSIONER DEARBORN: Like you said,we'll look at it. CHAIRMAN STRAIN: Okay. COMMISSIONER DEARBORN: Yeah. CHAIRMAN STRAIN: Yeah. The endowment is a little tricky because,generally,you know,if you've got to pay for maintenance and exotic removal,not all parcels have the same amount of exotic infestation. COMMISSIONER DEARBORN: That's a challenge. CHAIRMAN STRAIN: To say everybody has to pay the same when you may have better environmental land,more refined environmental land,more value to it because it has exotics,we're almost penalizing them with the endowment, so... MS.CILEK: And we have numbers to support how the number for the endowment was derived,and the number per acre per year is the same for DSAC and CCLAC. It's just after five years they made different assumptions,and so we can show those to you in a table. COMMISSIONER DEARBORN: You're saying after five years-- MS. CILEK: I'm saying after five years DSAC looks at the amount that is needed to manage land differently than CCLAC does. CCLAC uses the same number throughout every year,and DSAC looks at it differently. So we'll be happy to provide the numbers to you so you can look at them. CHAIRMAN STRAIN: Generally what happens,when you go in to clear initially for exotics,you get the Brazilian pepper that's 20 feet high. It's a pain. Plus,sometimes it's mechanical,sometimes it's stump-and-squirt operation. Page 43 of 46 January 19,2017 What DSAC's saying is that after you do that,the continued maintenance has leveled off. I think the experience that Conservation Collier's trying to say is it's not leveled off as much as you think. So that's what we need to address. MS.CILEK: And we can provide you the numbers that Conservation Collier has experienced on a large parcel,maintaining that for several years,and that may help you understand what number to go with. CHAIRMAN STRAIN: And you know who probably has some information they could gather on this is a guy named Joe Schmitt. There was initial--there was some really intensive heavy acreage done on a project he and I worked on that had a lot of exotics and had to go in be done both mechanically and by hand. And I am no longer there,so I'm not sure how the maintenance of that is going with the CDD that took over. But that would be interesting to see how their numbers look,Joe. I mean,it was probably before you got the CDD. COMMISSIONER SCHMITT: Yeah. That was all before I got there. But,I mean,that information's available. CHAIRMAN STRAIN: I don't know if they're experiencing that much of a high intensity invasion. I know when it got done it was gorgeous. It just came out really well. It's just a matter of did it come back and what's it taking to keep it. COMMISSIONER SCHMITT: We have other--I'm sure that is available from other environmental consultants,Tim Hall and others that do work right now. If we can--they could give you that average cost. MS.CILEK: And they work together to figure out the first costs. CHAIRMAN STRAIN: Okay. Good. MS.CILEK: It's just the DSAC,with Tim Hall, looked at--or a different individual,sorry,not that individual. They looked at it,and after five years they made a different assumption. COMMISSIONER SCHMITT: Fiddler's Creek was a tremendous cost to--that preserve across from the spreader canal which was cleared,but it's been very successful over the years once they went in and treated it and no reinfestation. So that cost has been cut significantly. But the initial cost is heavy. MS.CILEK: Also,I'll say,when we provide the materials to you--which I'd like to go over the date in just a couple minutes--feel free to give us a call if you have any questions on them so we can help explain them so that you understand while you're reviewing them and ahead of the meeting. CHAIRMAN STRAIN: Okay. Sounds good. MS.CILEK: One more thing,if I may.Actually a couple more. CHAIRMAN STRAIN: Sure. MS.CILEK: But under Page 22,for CCLAC we have the$50,000 endowment. That was actually a staff oversight in guiding CCLAC. We really wanted to keep with the recommendation of the previous amendment,and so that would be a different number.It's a lesser number. CHAIRMAN STRAIN: Okay. MS.CILEK: So we'll provide that in the table for you to see,but that will be a change from that amendment. Okay. I thought I would also ask if there's anything that the Planning Commission wanted to recommend with regards to who the land is donated to. Currently it discusses, I believe,a government entity, and I wanted to make sure that was still what the Planning Commission believes should happen. CHAIRMAN STRAIN: Well,I--I guess it depends on how you define government entity,because I've understood there's been some attempt to have CDDs be able to be the entity that it's donated to. I would highly recommend that not happen.CDDs are stable in some regards until there's a recession. When there's a recession,they're no long stable. We've experienced that. We've had some CDDs across the state go out of business. I'm not sure that's the best way to assure long-term maintenance if they're no longer an operation. So we may want to just leave it governmental,and it just stays that way as long as governmental is not considered CDDs. MS.CILEK: Okay. I'll work with the County Attorney's Office if clarification is needed to identify what governmental entity includes. MS.ASHTON-CICKO: Yeah. CDD is considered a governmental entity. COMMISSIONER SCHMITT: Yeah,it is. Page 44 of 46 January 19,2017 MS.ASHTON-CICKO: Yeah. COMMISSIONER SCHMITT: Who owns the areas like the Nancy Payton Preserve? CHAIRMAN STRAIN: That's Collier County,I think. That would be under Conservation Collier. COMMISSIONER SCHMITT: That's Conservation Collier,okay. All right. That's what I'm thinking of,where you would want to add to those larger swaths of land rather than--where there's some benefit. CHAIRMAN STRAIN: There was a project that came through that wanted--that had to do some offsite mitigation,and it was a CDD project. They said,you know,instead of donating the offsite to government entity,they're just going to donate it to themselves. That's where the twist came in.That's why the question's come up,the first time it was attempted,and we're not sure if it's the right thing to do in regards to longevity and assurance that the property will always be perpetually maintained. COMMISSIONER SCHMITT: So there's no option to go into a panther preserve and buy PHUs in an approved--government approved privately-run preserve,land bank or something else like that? MS.CILEK: Sure. Pm not--I don't know,actually,but I think with this language--and it's--I will tell you what page it's on,and I was mistaken. It's not governmental entity. It's governmental agency. It's on Page 20,Line 18. I can have Alex speak on the panther preserve,but I think it comes down to,like,a general-purpose government agency or a specific governmental,and panther-- COMMISSIONER SCHMITT: U.S.Fish and Wildlife is always attempting to buy land to mass sufficient quantities of property for panther preserve,but-- MS.CILEK: That might be considered-- COMMISSIONER SCHMITT: --I'm not sure if it's really U.S.Fish and Wildlife or it's privately approved. I mean,it's like a land bank for wetland mitigation. Those are typically privately run. They're approved through federal agencies and permitted,but they are typically private run. What's the one up in Lee County,panther--panther mitigation bank. MS.CILEK: Right. I can take a look at that.And this was a question asked. I didn't do a bunch of research beforehand,but we can do that before we come back. CHAIRMAN STRAIN: Okay. Anybody else? MS.CILEK: Let me ask staff if I need to discuss anything else. Okay. CHAIRMAN STRAIN: No? Yes? Caroline? MS.CILEK: I believe that's it for this amendment. CHAIRMAN STRAIN: Okay. Are there registered public speakers,Mike? MR.BOSI: None. CHAIRMAN STRAIN: Are there any members of the public here who would like to speak on this item? (No response.) CHAIRMAN STRAIN: Okay. Then we know that these two are coming back on the 30th at an evening meeting,which we'll—that's an opportunity for the public to talk again on these. And with that,I don't think,Caroline,there's anything else we have on your item,right? MS.CILEK: Just a note. Just due to the short time frame of the 30th,we were wondering if we could provide you your packets on Wednesday the 25th. So they would be on that Thursday morning. CHAIRMAN STRAIN: It's all going to be stuff we have already reviewed once,twice,or more. MS.CILEK: Yes,yes. CHAIRMAN STRAIN: You guys okay with that? COMMISSIONER DEARBORN: That's fine. MS.CILEK: Less time,but still a weekend. Staff just has a really short turnaround time to prepare the packets for you this time. CHAIRMAN STRAIN: We've got three people now electronically doing this. Stan's electronic now.Joe. We are getting there. MS.CILEK: Thank you. I'm good. CHAIRMAN STRAIN: Thank you. Is there any new business? COMMISSIONER SCHMITT: That's a pretty neat trick,though. A PUD donated to itself. Page 45 of 46 January 19,2017 CHAIRMAN STRAIN: Well,that's why the question came up,Joe. COMMISSIONER SCHMITT: We have to preserve anyway,but we're going to donate it. CHAIRMAN STRAIN: I don't think anybody thought about it before. All of a sudden it pops up and they go,whoa,wait a minute. COMMISSIONER SCHMITT: Yeah. That doesn't sound right. Good catch. Anyways,I was just thinking about that. CHAIRMAN STRAIN: Yeah. It took a minute when I first heard it,too. I was like,wait a minute, how do you do that? So we've got no new business listed. There is no old business listed. Any members of the public here that would like to comment? (No response.) CHAIRMAN STRAIN: Hearing none,is there a motion to adjourn by Patrick? COMMISSIONER DEARBORN: Motion to adjourn. CHAIRMAN STRAIN: Motion. Second by Stan. COMMISSIONER CHRZANOWSKI: Second. CHAIRMAN STRAIN: Seconded. All in favor,signify by saying aye. COMMISSIONER CHRZANOWSKI: Aye. COMMISSIONER EBERT: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. COMMISSIONER DEARBORN: Aye. CHAIRMAN STRAIN: We're out of here. Thank you,all. ******* There being no further business for the good of the County,the meeting was adjourned by order of the Chair at 12:14 p.m. COLLIER COUNTY PLANNING COMMISSION )1\116. MAR'ARISTRAIN,CHAIRMAN A IThST DWIGHT E.BROCK,CLERK These minutes approved by the Board on = Its ,as presented r` or as corrected . TRANSCRIPT PREPARED ON BEHALF OF U.S.LEGAL SUPPORT,INC., BY TERRI LEWIS,COURT REPORTER AND NOTARY PUBLIC. Page 46 of 46