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BCC Minutes 01/07/2004 S (LDC Amendments)January 7, 2004 TRANSCRIPT OF THE MEETING OF THE BOARD OF COLLIER COUNTY COMMISSIONERS LAND DEVELOPMENT CODE AMENDMENTS NAPLES, FLORIDA, JANUARY 7, 2004 LET IT BE REMEMBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 2:00 p.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Jim Coletta Fred Coyle Donna Fiala Frank Halas ALSO PRESENT: Joe Schmitt, Administrator, Community Development David Weigel, County Attorney Patrick White, Assistant County Attorney Marjorie Student, Assistant County Attorney Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Board of County Commissioners/Land Development Code AGENDA January 7, 2004 2:00 p.m. Tom Henning, Chairman, District 3 Donna Fiala, Vice-Chair, District 1 Frank Halas, Commissioner, District 2 Fred W. Coyle, Commissioner, District 4 Jim Coletta, Commissioner, District 5 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1 January7,2004 1. PLEDGE OF ALLEGIANCE 2. AGENDA AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE COMPREHENSIVE REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA, BY PROVIDING FOR: SECTION ONE, RECITALS; SECTION TWO, FINDINGS OF FACT; SECTION THREE, ADOPTION OF AMENDMENTS TO THE LAND DEVELOPMENT CODE, MORE SPECIFICALLY AMENDING THE FOLLOWING: ARTICLE 2, ZONING, DIVISION 2.2, ZONING DISTRICTS, PERMITTED USES, CONDITIONAL USES, YARD REQUIREMENTS, INCLUDING REVISIONS TO THE RURAL AGRICULTURAL DISTRICT, ADDING THE RURAL FRINGE MIXED USE DISTRICT, INCLUDING REVISIONS TO THE ESTATES DISTRICT, INCLUDING REVISIONS TO THE RESIDENTIAL SINGLE-FAMILY DISTRICT, INCLUDING REVISIONS TO THE RESIDENTIAL MULTIPLE-FAMILY-6 DISTRICT, INCLUDING REVISIONS TO THE RESIDENTIAL MULTIPLE- FAMILY-12 DISTRICT, INCLUDING REVISIONS TO THE RESIDENTIAL MULTIPLE-FAMILY-16 DISTRICT, INCLUDING REVISIONS TO THE RESIDENTIAL TOURIST DISTRICT, INCLUDING REVISIONS TO THE VILLAGE RESIDENTIAL DISTRICT, INCLUDING REVISIONS TO THE MOBILE HOME DISTRICT, INCLUDING REVISIONS TO THE COMMERCIAL PROFESSIONAL AND GENERAL OFFICE DISTRICT, INCLUDING REVISIONS TO THE COMMERCIAL CONVENIENCE DISTRICT, INCLUDING REVISIONS TO THE COMMERCIAL INTERMEDIATE DISTRICT, INCLUDING REVISIONS TO THE GENERAL COMMERCIAL DISTRICT, INCLUDING REVISIONS TO THE HEAVY COMMERCIAL DISTRICT, INCLUDING REVISIONS TO THE INDUSTRIAL ZONING DISTRICT, INCLUDING REVISIONS TO THE CONSERVATION DISTRICT, INCLUDING REVISIONS TO THE PUBLIC USE DISTRICT, INCLUDING REVISIONS TO THE COMMUNITY FACILITY DISTRICT, INCLUDING REVISIONS TO THE PLANNED UNIT DEVELOPMENT DISTRICT, INCLUDING REVISIONS TO THE RURAL LANDS STEWARDSHIP AREA OVERLAY DISTRICT, ADDING THE NATURAL RESOURCE PROTECTION AREA OVERLAY DISTRICT, ADDING THE NORTH BELLE MEADE OVERLAY DISTRICT, ADDING THE VANDERBILT BEACH OVERLAY DISTRICT; DIVISION 2.3, OFF-STREET PARKING AND LOADING, INCLUDING REVISIONS TO PASSENGER VEHICLE PARKING IN CONJUNCTION WITH RESIDENTIAL STRUCTURES, INCLUDING REVISIONS TO OFF-STREET LOADING REQUIREMENTS; DIVISION 2.4, REVISIONS TO LANDSCAPING AND BUFFERING; DIVISION 2.5, SIGNS, INCLUDING REVISIONS TO REAL ESTATE, AND POLE OR GORUND SIGN REQUIREMENTS; DIVISION 2.6 SUPPLEMENTAL DISTRICT REGULATIONS, INCLUDING REVISIONS TO HEIGHT LIMITS, INCLUDING ESSENTIAL SERVICES, INCLUDING REVISIONS TO BOATHOUSE REQUIREMENTS, INCLUDING REVISIONS TO TEMPORARY USE PERMITS, INCLUDING REVISIONS TO COMMUNICATION TOWERS, INCLUDING REVISIONS TO KITCHENS IN DWELLING UNITS, ADDING TRANSFER OF DEVELOPMENT RIGHTS, ADDING DENSITY BLENDING; DIVISION 2.7, ZONING ADMINISTRATION AND PROCEDURES, INCLUDING REVISIONS TO PLANNED UNIT DEVELOPMENT (PUD) PROCEDURES, INCLUDING REVISIONS TO CONDITIONAL USE PROCEDURES; ARTICLE 3, DEVELOPMENT REQUIREMENTS, DIVISION 3.2, SUBDIVISIONS, INCLUDING REVISIONS TO APPLICABILITY, SUBDIVISION REVIEW 2 January 7, 2004 PROCEDURES, PRELIMINARY SUBDIVISION PLAT, IMPROVEMENT PLANS, AND FINAL SUBDIVISION PLAT REGULATIONS; DIVISION 3.3, SITE DEVELOPMENT PLANS, INCLUDING REVISIONS TO EXEMPTIONS; DIVISION 3.5 EXCAVATION, INCLUDING REVISIONS TO LITTORAL SHELF PLANTING AREA AND EXCAVATION REVIEW PROCEDURES; DIVISION 3.8, INCLUDING REVISIONS TO ENVIRONMENTAL IMPACT STATEMENTS; DIVISION 3.9, INCLUDING REVISIONS TO VEGETATION REMOVAL, PROTECTION AND PRESERVATION; DIVISION 3.11, INCLUDING REVISIONS TO ENDANGERED, THREATENED OR LISTED SPECIES PROTECTION; DIVISION 3.12, INCLUDING REVISIONS TO COASTAL ZONE MANAGEMENT; DIVISION 3.13, INCLUDING REVISIONS TO COASTAL CONSTRUCTION SETBACK LINE VARIANCE; DIVISION 3.15, INCLUDING REVISIONS TO ADEQUATE PUBLIC FACILITIES; AND ARTICLE 6, DEFINITIONS, DIVISION 6.3, INCLUDING REVISIONS TO DEFINITIONS; APPENDIX D, AIRPORT ZONING; SECTION FOUR, CONFLICT AND SEVERABILITY; SECTION FIVE, INCLUSION IN THE COLLIER COUNTY LAND DEVELOPMENT CODE; AND SECTION SIX, EFFECTIVE DATE. 3. ADJOURN INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774-8383. 3 January 7, 2004 January7,2004 ORDINANCE 2004-01: AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE OF COLLIER COUNTY, FLORIDA- ADOPTED WITH RULES ACCEPTED REGARDING THE VANDERBII,T BEACH OVFRIJAY CHAIRMAN HENNING: Call the meeting of the Board of Commissioners Land Development Code to order. This is cycle three. Date is January 7th, 2004. Would you all rise for the pledge of allegiance, please. (Pledge of Allegiance was recited in unison.) CHAIRMAN HENNING: Mr. Schmitt? Oh, hang on. We've got musical chairs going on here. What's going on? The vice chair is supposed to be over here. COMMISSIONER FIALA: I've been here for a couple of weeks now. I don't know why -- CHAIRMAN HENNING: I had the holidays the last couple of weeks. COMMISSIONER COLETTA: I'll trade places with you, if you want. COMMISSIONER FIALA: It doesn't make any difference. CHAIRMAN HENNING: Is that what it is? What's going on? COMMISSIONER FIALA: I don't know. CHAIRMAN HENNING: No? COMMISSIONER FIALA: I don't know, I think we're just musical chairing it. CHAIRMAN HENNING: Musical chairs. Are we going to do this next -- this year, we're going to play -- go back and forth? COMMISSIONER FIALA: Musical chairs? It could be. COMMISSIONER HALAS: She didn't like my aftershave. COMMISSIONER FIALA: I did. CHAIRMAN HENNING: Okay. Mr. Schmitt? Page 2 January 7, 2004 MR. SCHMITT: Not going there with any of those comments. COMMISSIONER FIALA: Smart. MR. SCHMITT: Good afternoon and welcome to our second hearing, at least regarding the -- this cycle of LDC amendments. This is the second cycle of the calendar year '03. Today we're going to hear for the second hearing the Vanderbilt Beach overlay LDC amendment, and then we'll go into our first hearings of the rest of the LDC amendments associated with-- at least the amendments for the Land Development Code regarding our general issues. In the next meeting, we'll come back with those LDC amendments associated with the rural fringe and Eastern Lands amendment and the implementation of the -- at least the Comp. Plan amendments associated with the rural fringe and Eastern Lands. What I want to do is turn this over to Assistant County Attorney Patrick White just from a standpoint of-- he can -- he can at least can read the legal aspects of this and then to advise the Board, from a legal perspective, of the requirements, since in fact during the last meeting you approved to start this meeting at 2:00, rather than at the stated time, normal time, of usually 5:05. And there's usually going to be some requirements that we're going to have to abide by in regards to the LDC amendments, if we get to those amendments, prior to 5:00 in regards to having time, ample time, for anybody who comes in after 5:00 to speak. So Patrick, if you could cover that from a legal perspective? MR. WHITE: Certainly. Assistant County Attorney, Patrick White. I'd like to start out, Mr. Chairman, by putting on the record that I have reviewed the affidavit of publication for today's meeting for the second public hearing for Section 2.2.38, the Vanderbilt Beach RT overlay. At this time I'm turning that affidavit over to our minutes keeper. Thank you. Page 3 January 7, 2004 As Mr. Schmitt had indicated, this is the second of two public hearings. It's occurring at a time prior to 5:05 p.m, because at the December 10th meeting last year, this Board voted by a super majority to have that hearing occur at a time prior to 5:00 p.m., not only for this provision but for all of the provisions of the LDC. And to that extent we continued until today, as a matter of the first public hearing, all of the LDC provisions other than 2.2.38. That creates a bit of a unique issue from the perspective of notice. Typically both public hearings are held at a time after 5:05, and because that is traditionally what folks have become accustomed to, even though the Board authorized us to do it at a time earlier for the second public hearing, the matters that you'll hear other than 2.2.38 today will still continue to be a first public hearing. And because it's a continued hearing from December 10th, we did not advertise it, we're not required to. But I just want to be able to put on the record, at 5:05 that we would stop and inquire as to whether there were any folks who were in attendance then for any of the matters we may have heard other than 2.2.38 at the time prior to 5:05. I think we'll have to wait and see, not only what we hear between now and 5:05 other than the 2.2.38 provision, and I would suggest that the Board take a break, if we do conclude prior to 5:05 with all of the 2.2.38 matters, so that we could come back on the record with a continued first public hearing for the balance of the matters so we could make that abundantly clear in the public record. At this time, the only thing I would make a correction to from what Mr. Schmitt had indicated to you was that we will not be hearing today any of the, quote, Eastern Lands, rural fringe amendments and that those will be heard and will be continued from today until January 29th. And the one matter that I do not know the answer to with respect to this timeline has to do with the time of that hearing on the Page 4 January 7, 2004 29th, and I would suggest if you do not already know what's on your calendars for the 29th, if there would be some point in time prior to 5:05 that you would desire to hear those, that you collegially today make that decision, so that we will have that information and can publish the appropriate notices for that meeting for all of the matters. That would be the second public hearing for those matters that would be heard today for their first public hearing. I know that's very confusing, but I'm willing to take any questions you may have about it. CHAIRMAN HENNING: Commissioner Coyle? COMMISSIONER COYLE: I have a question about the 29th. I will not be available for that meeting on the 29th. So if that makes a difference -- MR. WHITE: It could only make a difference in terms of requiring that with respect to any of the provisions that would be acted upon that day, that it would have to be a unanimous vote. Because we do require a super majority. So I anticipate that there may be some things that will need a final decision that day. But we'll have to, as I said earlier, wait and see how things kind of go today. My understanding is that there may be some change to what we have originally contemplated as part of the agenda and the timeline and we'll just have to see how things go today and adjust accordingly and correspondingly advertise accordingly. Are there any other questions? CHAIRMAN HENNING: Yes. The -- so which items are we going to hear between now and 5:05? MR. WHITE: We're scheduled for 2.2.38, the Vanderbilt Beach RT overlay. Once we conclude that, if we could take a break and then come back on the record with a continued first public hearing for any of the other matters that are in the packet, with the exception of the Eastern Lands provisions. CHAIRMAN HENNING: Okay. Page 5 January 7, 2004 MR. SCHMITT: Our intent, Mr. Chairman, is -- you all received a schedule by e-mail and probably hard copy as well. We will do the Vanderbilt Beach overlay first. Second, because they're -- they are issues that are somewhat related to the community in regards to -- of interest, that is the CCSL, coastal construction setback line variance, and the boathouse requirements issue, our intent was to proceed as Mr. White just mentioned. We would have to adjourn from the second hearing and you will vote today on the -- or certainly you're going to vote at least on some aspects, provide guidance to the staff in regards to the Vanderbilt Beach overlay. The other amendments will be the first hearing, CCSL variance, the boathouse requirements, then building heights, concurrency, signs. There's a whole series of LDC amendments associated with the implementation of the school board interlocal agreement. And then amendments associated with the preliminary subdivision plat, the elimination of those, those -- that procedure. So our intent was to go through those as well today, at least until such time as you feel comfortable either terminating the meeting or we get through those items, and then we would -- that would be the first hearing of those -- the remainder of those items. We could come back on the 29th for the second hearing for those items. And if Commissioner Coyle is absent, of course, as Mr. White mentioned, and would require a unanimous decision in regards to those amendments, we will then be the first hearing on the 29th of the amendments associated with the rural fringe and Eastern Lands and come back on the 11 th of February for the second hearing of those amendments. And that's why Mr. White mentioned there may be a possibility, if you all choose, we will try and book an earlier start time on the 29th to at least allow time to go through a second hearing of the remainder of the amendments you're going to hear today and then the Page 6 January 7, 2004 first reading of the associated Eastern Lands amendments. CHAIRMAN HENNING: Okay. Like you stated, there are a number of residents here on the -- for the Vanderbilt. But there's also some things that they want to hear also, coastal line setback and boat docks. MR. SCHMITT: Yes. CHAIRMAN HENNING: Can we hear those before 5:00 -- MR. SCHMITT: Yes. CHAIRMAN HENNING: -- get some public input, and then after 5:05 take a vote by the Board? MR. SCHMITT: There's no vote required on those amendments, because we have to come back for a second hearing. The only thing, as Mr. White mentioned, we would have to at least make an announcement of anything that we've heard prior to 5:05, if anybody comes in after 5:05 to allow them time to speak on any amendments we may have already discussed. Am I white -- right, Mr. White? MR. WHITE: You are correct, Mr. Schmitt. MR. SCHMITT: Thank you. CHAIRMAN HENNING: All right. Great. No further questions? (No response.) MR. SCHMITT: With that, Mr. Chairman, we're ready to proceed to Section 2.2.38. Mr. Schneider, he was the project manager for the overlay amendment. We'll have a very short introduction. Our intent is just merely to reorient you as to what the proposals were, what your direction was at the last meeting that these were presented, and that was of course at the December 10th hearing. We'll point out what we have in front of you in regards to the amendment as it currently exists, and we'll proceed from there, based on your direction. Mr. Schneider. Page 7 January 7, 2004 MR. SCHNEIDER: Thank you, Joe. Donald Schneider from Community Development, Environmental Services. Good afternoon, Mr. Chairman, Commissioners. In a memorandum dated December 31st, 2003, I had transmitted to you some information regarding this overlay and I wanted to point out some modifications that have been made to the staff power point presentation, of which I've given you copies. And on your desk I supplied you with a better quality copy of slide 74, which is on the monitor at this particular time. It alludes to the conclusions that we reached, of which I'd like to go over with you. At the last meeting, on December 10th, you directed us to conclude the following: That the maximum building height would be 75 feet, a density that would be 26 units per acre for hotels and motels and 16 units per acre for time share, multi-family and family care facilities. We would eliminate the permitted use of townhouses. We had a minimum lot area presented as one contiguous acre. We added a vesting provision for completed applications that were submitted for rezoning, conditional use, variance, subdivision, site development plan or plat approval which were filed with or approved by Collier County prior to the adoption date of the moratorium of January 9th, 2002. We also inserted by reference the county's build-back policy, which is LDC Section 3.17. And in this memorandum, also pointed out to you the -- essentially the reference to catastrophic disaster, the definition for that, catastrophic disaster and major disaster, which helps us understand what those terms are intended to be, according to the LDC. I also provided for you an updated impact analysis of options by Dr. Hank Fishkind, who I might add is also here this afternoon, that could answer any questions that you may have in that regard. So I think we've covered the major things that you directed us to change and provide in the new overlay as we go forward. And with Page 8 January 7, 2004 that, essentially I'd like to turn it back for any questions for comments. CHAIRMAN HENNING: Questions by the Board? None? Commissioner Coletta? COMMISSIONER COLETTA: Yeah, just, just a comment, and I want you to state it for the record. If this Commission was not in agreement with us and we couldn't come to an agreement, the results would be that we would fall back on what already exists, is that correct? MR. SCHNEIDER: That's absolutely correct. COMMISSIONER COLETTA: And the present arrangement is for what? MR. SCHNEIDER: The present arrangement would be for 100-foot high permitted buildings, according to the zoning height. And the density would the same, 26 units per acre for hotel/motel, 16 units per acre for time share and multi-family. And we would also then, reverting to back to the current RT zoning, would include such things such as townhouses. And rather than one contiguous acre, the current RT zoning is just one acre, as is stated. So that's where we would revert back to. COMMISSIONER COLETTA: So when we get to the point where we make a final decision, it's going to take a vote of four commissioners to be able to change this to the lesser amount, the 75-foot -- MR. SCHNEIDER: Yes, sir. COMMISSIONER COLETTA: -- and the one continuous acre and so forth. MR. SCHNEIDER: Yes. Oh, I also need to mention that-- thank you, Randy -- that the setbacks, of course, would go to what is previously considered the wedding cake design, which is one half the building height to the wing or wall of the building, which we've tried to eliminate. Page 9 January 7, 2004 He's reminding me of other things that we need to include, which -- another element which is important is that in the original RT zoning, there is a provision for a conditional use that would take an additional 25 feet of elevation available to the applicant. COMMISSIONER COLETTA: So -- once more, just to say it one more time for the record, that unless four commissioners agree to this lessening of the impact, then we - the status quo stays. So we -- MR. SCHNEIDER: That's correct. And I'd also like to -- COMMISSIONER COLETTA: I just wanted to make sure we understood where we were going with this. MR. SCHNEIDER: Yes, Commissioner. I'd also like to point out that at that point you need to make a decision on the moratorium as well. There's a provision before you that's been sent up from the Planning Commission to extend the moratorium until the end of June of this year. And so that would be your option of what you desire to do with the moratorium at that point as well. MR. SCHMITT: Commissioner, if I could clarify the -- if in fact this motion does not pass, meaning what's on the table right now, you do have the option to direct staff to relook at the issue, and in doing so certainly have in your tool box right now the option to extend or continue the moratorium, which is what we provided, we've already gotten that -- passed it, or that has gone staff through the Planning Commission. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: Some of the items that we should also look at, not only what's before us, but we also should look at the background that's involved in this. There's an awful lot of time that's been put forth by staff and there's been an awful lot of time and money, resources that the community itself has spent on this. And in our first hearing of the Land Development Code amendments here for Vanderbilt overlay, we pretty much, I thought, came to a good consensus here, we gave direction here to staff. So Page 10 January 7, 2004 I'm hoping that all we have to do is maybe tweak it one way or the other a little, and I think we should be home free here. CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Yes, I was wondering, why did the Planning Commission recommend to extend the moratorium? MR. SCHNEIDER: Commissioner Fiala, I believe that was primarily as a safeguard, in the event that we needed more time. COMMISSIONER FIALA: Oh, just a safeguard. Okay. MR. SCHMITT: Yes, ma'am, that was simply as a safeguard. In fact, if there was a reason that this Board found, for any reason, for the staff to go back and redo one of the activities, the -- basically right now the current moratorium expires the 31st of January, and the 1st of February any applicant who chooses to do so can come in and request a rezoning under the current criteria. So what we did is, just as a safeguard, provided -- made sure that all the steps were in place and necessary that if in fact you wanted to extend the moratorium, you could do so. MR. WHITE: It was also done, Commissioners, so that if we had not had that second public hearing on the Vanderbilt RT overlay by the 29th, remember that we had February 1 lth out there, and once that entered into the calculation for the timeline, we recognized that it may have been possible that we wouldn't have had a decision before the 31st, and we needed to have some safeguard, as Joe has mentioned, in order to be able to ensure that we didn't create an unwanted circumstance, so -- CHAIRMAN HENNING: Okay. Mr. Schneider? MR. SCHNEIDER: Yes, sir. CHAIRMAN HENNING: Anything else? MR. SCHNEIDER: Nothing else, sir. CHAIRMAN HENNING: Let's call the first public speaker. MR. SCHMITT: First public speaker, Bill Eline, followed by, it looks like Ben -- Allen -- I don't think -- can't read what that even Page 11 January 7, 2004 says. Allendorser, I believe it is. Is it close? COMMISSIONER HALAS: Point of order. I thought we were going to have the staffs report and then we were going to have the next report and then we were going to bring this -- bring comments to the -- from the floor from the citizens; is that correct or not? MR. SCHMITT: Commissioner Halas, for all intents and purposes, staff has concluded its presentation. We -- COMMISSIONER HALAS: Okay. MR. SCHMITT: -- what's on the table is what's presented. We have no other information to present, unless you have any questions. COMMISSIONER HALAS: Oh, okay. There wasn't any other infor -- so then you're saying we're going right into -- MR. SCHMITT: Right into public speakers. COMMISSIONER HALAS: And the citizens' input. MR. SCHMITT: Yes. MR. WEIGEL: Mr. Chairman? CHAIRMAN HENNING: Yes. MR. WEIGEL: County Attorney. I'd appreciate if I could make a few comments that might assist the public as they get forward-- before they come forward to make their questions and comments so that I can direct the Board and the public's attention to what is before the Board at the present time. And as Mr. Halas mentioned, over the course of the discussion, there may be some tweaks that are offered, and I wanted to offer a couple of things myself for the Board consideration. If you don't mind, I'd like to take this opportunity. I think it might assist before we get into the public speakers. CHAIRMAN HENNING: I don't have a problem with that. You've got five minutes to do it in. MR. WEIGEL: I can do it. Start the clock. At the Planning Commission hearing I got up and addressed the Planning Commission and the public that was present, indicating that Page 12 January 7, 2004 I thought that it was appropriate, among other things, to look at the standard of 75 feet. And then ultimately subsequent to that, I wrote a written opinion, taking into context the risks and discussion of risk with the Burt Harris Act relating to a 75-foot standard. In that opinion, I indicated that a 75-foot standard, if adopted, changing from the current 100-foot standard, must certainly be reviewed prior to the adoption process with other tools or development standard remedies which may be also offered and potentially adopted. At the conclusion of the Board's first hearing on the Vanderbilt Beach overlay district amendment, I mentioned that the retooled staff considerations and recommendations, which included the one contiguous acre, which included setbacks of half the building height, with other minimums, but clearly half the building height, from side yard setback as well as front and back, and a couple other of the -- of the remedies to further assist the achievement of the goals of view corridors, light access, things of that nature, that they were achieved, I noted, even without a change of the standard of 100 feet, or could be, could be considered achieved without the change of the standard of 100 feet, which was the staff recommendation. And that was consistent with my opinion which indicated that if they -- if the Board were to utilize 75 foot, a 75-foot maximum height standard, that it had to be carefully taken into context of the other standards that may be brought into play as well and the ultimate risk analysis of the Burt Harris Act in which we consider and would have to respond to issues of inordinate burden based upon -- placed -- purportedly placed against investment backed expectations looking to existing uses and vested rights already in place. At this point then I offer, as legal opinion and for discussion, and both of this Board and the public, that if the Board were to continue with what is come back as the direction from the first Board hearing with 75 feet as well as with the other recommendations such Page 13 January 7, 2004 as the side and rear yard setbacks, which are half the building height, that that in fact, yes, I think is defensible against a Burt Harris Act claim that would be made. But I must advise you that from a risk analysis, it is perhaps more problematic to defend the 75-foot height standard with the other standards brought into it than it would be if we had a slightly different standard in regard to height. And I would suggest that, as we all are aware, most of the preponderant number of platted lots in the Vanderbilt Beach RT district are 100-foot lots. And my staff has reviewed and we note that with the setbacks that the Board would adopt, which is half the building height, both sides, front and rear, that it grossly reduces, one might say, it certainly significantly reduces the building height capabilities on those smaller lots. I would suggest the Board may wish to consider, however, on the larger lots -- and my rule of thumb I would suggest is three acres and larger-- but the Board may wish to consider in the course of its discussion today maintaining the 25-foot conditional use potential. And that is, you would be adopting, potentially adopting, a standard of 75 feet for all of the parcels in the district. But for those parcels that are three contiguous acres or larger, that the standard may be considered to be adopted of a conditional use for 25 additional feet, which would provide this Board and the Planning Commission and the public numerous opportunities on an individual basis of application by a property owner owning such large property to come in, review and troubleshoot, discuss, argue against, argue for the additional 25 feet. I do believe that when you're talking about the larger parcels, that an argument can be made. And I'm not saying that it's an argument that will hold sway in court, pro or con, because I do not want to damage the ability of the county to respond to any argument that should come. But an argument could be made that with this new Page 14 January 7, 2004 absolute height requirement of half the building height, that if on large parcels that you had potentially 100-foot height with the conditional use, that they still in fact are maintaining at least the same standard that is being imposed upon the 100-foot parcels. And arguably in the conditional use process the discussion could provide for additional setback, and so that the view corridors are proportional and perhaps even better than what we're achieving on the 100-foot lots. So I wanted to express that to the Board and to the public as something that may be considered. You have before you, as Mr. Schneider indicated, the prior -- from history you see the prior staff recommendation, you see the redirect that came from the Board at the last meeting, and I wanted to put these other matters before you now to consider as well. Thank you. CHAIRMAN HENNING: Okay. Before I go to public speakers, can you guide me where the setbacks are in the Vanderbilt Beach overlay, the language for setbacks? MR. SCHMITT: Don? MR. SCHNEIDER: Yes, sir. If you look at your ordinance, the draft ordinance, you'll find the setbacks on Page 5 of that. It's 2.2.38.63, minimum yard requirements, where it illustrates front yard, one half the building height with a minimum of 30 feet, side yard, one-half the building height with a minimum of 15 feet, and rear yard, one half the building height with a minimum of 30 feet. CHAIRMAN HENNING: Any questions by the Board? COMMISSIONER HALAS: Yes, I do. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: This is for the County Attorney. I'm amazed at where we started off at. And we had a reading from you on the first indication, or the first reading of this, that we could pretty much count on 75 feet as being the area that we're trying to attain here. My understanding is most of the zoning in the rest of the Page 15 January 7, 2004 county here is at 75 feet. Am I correct on that? MR. WEIGEL: It is now, yes, sir. COMMISSIONER HALAS: Okay. And we've lowered zoning from commercial from 75 feet -- or from 100 feet down to 75 feet. We didn't have any problem; is that correct? MR. WEIGEL: Not yet, sir, no. COMMISSIONER HALAS: Okay. So what's the difference when we go into an RT zoning area? MR. WEIGEL: Okay, there's the question mark. The difference is -- the difference is to the fact that it is a unique zoning area that has provided for a type of construction and development which is not identical to the commercial in other zones. And I'm not saying that it has to be done, I just offer it as a point of consideration in the context of potential contests that may come of a development of a more restrictive standard. But again, I offer this up. I believe that the county will do its utmost, obviously, to defend any lawsuit that comes. But the moratorium came in place at a time when we knew that there were arguably expectations of development that were going to be certainly significantly higher than the standard that we're contemplating today. And I have to take that into account as I advise the Board generally that in the choices you make, there's kind of a risk continuum, kind of like a thermometer of risk. And to the extent that we get more restrictive with multiple restrictions of the land development standards, that makes the -- arguably makes the thermometer of risk go a little higher, a little hotter. But I cannot predict with certainty the ability to win or lose any lawsuit. I do know from history that we can win lawsuits at least at the trial level now on appeal at significant expense. And so I just felt that it was appropriate at this juncture, at this point, and not having come from another source, that your attorney should mention this to you. Page 16 January 7, 2004 CHAIRMAN HENNING: Commissioner Halas, also I think going back-- well, when you were a citizen, the issue with the --just all around Vanderbilt Beach with the wedding cake and the floor area ratio, and then wanting to look at the Vanderbilt Beach area holistically, well -- I'm sorry, well, it's just RT zoning -- COMMISSIONER HALAS: Right. CHAIRMAN HENNING: -- it was, because it was ripe for redevelopment. And before redevelopment took place for the Vanderbilt Inn and the Vanderbilt motel, that they want some citizen input of what it should look like, so -- COMMISSIONER HALAS: That's exactly right. And that's what we're -- what we're hoping that we can obtain here is that we basically go forward with what came in the first reading of the -- but I hope that we have some public speakers out there that maybe can shed light more in regards to -- so that we have not only the -- our county attorney's opinion but we have outside opinion of other areas that have dealt with this same problem. CHAIRMAN HENNING: Right. But to answer your question about why is this different than any other zoning district, like the commercial district is 75 feet, it's because this is ripe for redevelopment, and a concern with any claims that come down. COMMISSIONER HALAS: And we presently have in the RMF -- the RMF-16, I believe, is only 75 feet; am I correct on that? MR. SCHNEIDER: That's correct, Commissioner. COMMISSIONER HALAS: All right. Just so we know what the playing field is here and we all have an idea. CHAIRMAN HENNING: Commissioner Coyle -- Commissioner Coletta, I'm sorry. You got the seesaw changed up and -- you know, for some unknown reason. COMMISSIONER COLETTA: First off, I do appreciate Mr. Weigel's opinion, because we always have to have an attorney give an opinion. Page 17 January 7, 2004 I think we're justified with the 75-foot ratio, because even bigger lots, the density factor figures in, and that's the great equalizer for what you have out there. You can only put so many units per acre, whether you have a half acre lot or a five acre lot. And that's going to be the equalizer that's going to bring the whole thing out. I don't -- I don't see why we should give special status to someone that has a larger lot, just allow them to be able to build up higher in the air for that fact and achieve their density by doing that. But then again, too, I want to hear what other people have to say. CHAIRMAN HENNING: First public speaker? MR. SCHMITT: First public speaker again is Bill -- MR. ELINE: Eline. I'll help you out with that one. MR. SCHMITT: Thank you. MR. ELINE: Everybody has for a long time tried to do something with it. Mr. Chairman and Commissioners, it's a privilege to make a couple of comments. And I will not be long. Even after our lawyer's comments this morning. I urge the Commissioners on whatever plan you vote on today and approve, that you submit that plan to FEMA and you submit that plan to DCA so that we will all know whether or not the plan you adopted is approved by those two agencies. It becomes very important. I'm president of the Vanderbilt Yacht and Racket Club. We have six acres of land, and under the 16 units per acre, we only have 44 units on that land, we could build 52 more. So we'll have to know the answer to that question. My second point is kind of simple: Beach access, which is entwined in this whole subject. And I've been in every meeting since the day we started, and I certainly agree with Commissioner Coyle that we need some creative thinking. And I had an opportunity to talk to Commissioner Halas and made the following proposal for Page 18 January 7, 2004 consideration: That the county create a trust fund, very similar to the highway trust fund that built the highways of the United States. A very legal document. All funds collected go into the trust fund and could only be spent on the park that would exist from Wiggins Pass Marina lot down to the state park. Open the trust so that citizens could make a contribution. You could have trust funds that are set up, make a contribution. And I think we owe it to our citizens to build them the best water park that is in Florida or anywhere else that I know of. If you do that, it will help. The thing we all hear, we need tourists. If you got the greatest water park along either coast, people will come and participate. And especially those people in our own county, less fortunate than any of us here, could go enjoy the water. If we don't do this, the opportunity will pass and we'll all look back and say gosh, why didn't we do something. Thank you. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Next speaker is Bill (sic) Gildersleeve, followed by Jerry Nerad. MR. GILDERSLEEVE: My name is Ben Gildersleeve. I live at 10573 Gulfshore Drive, which is the Vanderbilt Club. I have a picture here that I'd just like to pass around that you can all view. I come to speak on one subject and that is, it's my understanding in the proposals that have been made that the definition of contiguous does not allow for property on both sides of Gulfshore Drive. The picture that I'm giving you shows the Vanderbilt Club in its early days. It's been there almost 40 years. And we've always thought that our property on both sides of the street was contiguous. We were there when Vanderbilt-- when the Vanderbilt Club was built, Gulfshore Drive was really nothing more than a cow path or a -- I don't know if there are any other properties up and down the street that are -- that have the similar problem that we do have. Page 19 January 7, 2004 I would have no objection, obviously, if your ruling was that property acquired after this date was not continued -- considered to be contiguous. But I think that existing property certainly bears consideration. If there are other properties as -- with the same situation that we have, I think they should be given the same consideration. Thank you very much. CHAIRMAN HENNING: Sir, before you leave, is the Vanderbilt Club -- whatever, I'm sorry, where you live, is that multi-family zoning or RT zoning? MR. GILDERSLEEVE: RT. CHAIRMAN HENNING: It is RT. So this directly affects this piece of property? MR. GILDERSLEEVE: Yes. CHAIRMAN HENNING: The -- Mr. Schmitt, during the public participation, was it discussed about continuous -- contiguous and non-contiguous? MR. SCHMITT: Yes. In fact, in the last meeting, the Board directed that we come back with the verbiage of contiguous acre. Now, this -- this has to impact -- and again, this is up to you all from the standpoint of a policy decision, because the issue was, for instance, the LaPlaya is another good example where the parking garage is on one side of the street. They built a parking garage. The density then is applied across the street to the -- I would call it a nearby platted lot. And so the density -- the parking on one side and the density is applied to the other, as long as they meet the setback requirements. From a planning perspective that's a good thing in regards to maximizing the property use as far as the beachfront property. But the issue with the residents, and you'll probably hear this, was regarding just that, using the density from a nearby lot to maximize the building structure on a beach side lot, and then later on, as was -- has been at least reported but I've not been able to substantiate that, Page 20 January 7, 2004 that that density was then again applied to the existing lot on the bay side. But that's the issue of trying to use the density and kind of swap between two different parcels of property. And LaPlaya is another good example of that. But your direction was a contiguous acre, because that was to preclude this swapping density. CHAIRMAN HENNING: Swapping of density. But we have, I would imagine, a stakeholder here saying that he's against that, and it sounds like maybe further on down the line you're going to redevelop this piece of property? MR. GILDERSLEEVE: We have no plans in that direction. MR. SCHMITT: What that does is make that property basically a legally nonconforming structure, because now the overlay will preclude applying the density from one side of the street to the other side of the street. CHAIRMAN HENNING: Oh, okay. MR. SCHMITT: That's a decision -- that's a decision that you'll have to-- COMMISSIONER HALAS: If it's a contiguous acre, in other words, if it's side by side. If it's not contiguous it's because you've got the dividing point of the road. CHAIRMAN HENNING: Okay. All right. MR. GILDERSLEEVE: Thank you. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Jerry Nerad, followed by Dwight Nadeau. And if I could ask that the speakers be ready to present, we could move this along. MR. NERAD: My name is Jerry Nerad. I'm the owner of the Vanderbilt Inn. And once again, I would like to thank the County Commissioners for allowing me to address you one more time to convince you that downsizing the density and height of my parcel is egregious and would cause economic hardship. Page 21 January 7, 2004 At your first reading that took place on December 10th, six properties were identified for possible redevelopment. Three parcels have existing condominiums and the other three are hospitality properties. Nothing will happen to the parcels with the condos. One hospitality property has already worked a deal. If the new overlay goes into effect by getting permission from the stakeholders for a conditional use permit, that will allow them to add a third floor and increase their density. The second hospitality property just underwent a $50 million renovation and will not be affected by this overlay for the foreseeable future. This leaves my parcel as the one being targeted for economic hardship. If the stakeholders get their way by reducing the existing RT density from 16 residential and 24 commercial to three residential and 16 commercial units, allowing 16 commercial units, this would result in approximately 70 hotel rooms to be built, with remaining space for public use. This boutique hotel could not compete with its neighbors on the street, because you are reducing the footprint of the building and not allowing for such things as a spa, tennis courts, adequate parking, meeting rooms and ballrooms. These amenities are needed to create enterprise value. By the time a developer acquires the site, builds the room and adds the basic amenities, his acquisition and building costs for only 70 rooms creates an economic hardship. Without full service like any five-star property offers, this endeavor, even selling rooms at $350 a night, makes no economic sense. There is no enterprise value that will bring an owner an appropriate rate of return for a scaled down boutique hotel on this site. In addition, if you reduce the density to three or four residential units, you will be chopping 75 percent of the appraised value of the real estate or about $37 million. Even reducing the height to the Page 22 January 7, 2004 proposed 75 feet will also produce a $13 million hardship. I certainly hope you ask comrade Ketcham and her gang why they want to impose economic hardship on this parcel. Maybe they can articulate why this parcel has to suffer in order to satisfy what the stakeholders envision for the property. This parcel is almost five acres, and any developer who acquires it would have to work closely with the county to develop a condominium that would be in compliance with all of your new regulations. I encourage the Commissioners to have the courage to say no to any downsizing of height or density that would cause this parcel economic hardship. Exempting this property from the overlay would make this proceeding moot. Everyone in this room is entitled to sell property at fair market value. Don't let my property be singled out for arbitrary and egregious actions by the stakeholders. In conclusion, I applaud Commissioner Henning's attempt to have the stakeholders bear the cost of this future litigation. This is such a parochial issue that the nice folks residing in Marco, Lely, Golden Gate and Naples should not have to get involved. Also, let the moratorium expire. Let's see where the economic hardship takes US. CHAIRMAN HENNING: Thank you. Next speaker? MR. SCHMITT: Dwight Nadeau, followed by Rich Yovanovich. MR. NADEAU: Commissioners, good afternoon. My name is Dwight Nadeau. I'm planning manager for RWA, representing Van Dev, Inc. today on this Vanderbilt RT overlay. I'd like to take your attention back to December 10 when we were last before you, and the comprehensive planner, David Weeks, stood before you and explained that those properties on Vanderbilt Beach which are zoned RT do have a consistency by policy standing with our Comprehensive Plan. Which means that they are entitled to Page 23 January 7, 2004 the 16 dwelling units per acre on those properties. It's directly from our plan, from the future land use element, FLUE Map 9. To reduce any development standard or density in an overlay proposed for those RT lands on Vanderbilt Beach would diminish the yield on properties. Therefore, if the building height were to be reduced from 100 feet, as currently entitled, to 75 feet, there will be a reduction in units. The slight increase in building width, which would result from the lesser setback, would not provide for the one or two units to make the full density come to fruition that is currently entitled on the property. This must be very clear. Reducing building height will reduce the number of units that would be yielded from a redevelopment property. Now, to the end of redevelopment property, we stood before you and identified 19 or 20 properties which would be wide enough to achieve 100 feet in height. We went further, because this Commission had some questions on what properties really -- which properties really could be redeveloped. And so we undertook that study. And of the 19 or 20 lots, whether aggregated or not -- because yes, the plats are plotted as 100 feet wide, but many of them have been aggregated under single ownership and built on a larger parcel -- four properties resulted. And our criteria was based on property size, number of units, because you will have to acquire a majority of those units to redevelop the property, its location in relation to the coastal construction control line, and the method of ownership, whether it was individual ownership or a co-op, et cetera. The result of our analysis, four properties have the potential to be redeveloped. Those properties include the Vanderbilt Beach Motel, built in 1975 and is currently under redevelopment. The Bayshore of Vanderbilt condos I and II, they were built in 1978, but the majority of their principal structure falls seaward of the 1974 coastal construction control line. Therefore, under current rules, Page ~4 January 7, 2004 it would be impractical to try and redevelop that piece of property. The Vanderbilt Club condo that was just referenced by the gentleman before me -- or by one of our speakers, it has only ! 8 units, which could be attractive to a developer to go in and acquire that piece of property. It has the width to go 100 feet high. However, again, I would say 95 percent of those principal structures in the Vanderbilt Club condo properties lie seaward of the coastal construction control line. So therefore, they're constrained in lot depth to be able to put a marketable unit and get potential residents onto the property. What property remains from that analysis? That property is the Vanderbilt Inn. The Vanderbilt Inn is 4.82 acres. It has over 300 feet of frontage on Gulfshore Drive. It is entitled to ! 6 dwelling units per acre. It is entitled to 100 feet currently. Commissioners, being that the Vanderbilt Inn is an isolated piece of RT zoning on Vanderbilt Beach, surrounded by nonconforming RMF-16 structures, all in excess and averaging above 100 feet in height, the Vanderbilt Inn should be excluded from any overlay or any restrictions. Now, I applaud the suggestion of Mr. Weigel. I don't know if I could necessarily support it, but it seems like it could be a reasonable option for you to take a look at. I'd be happy to answer any questions, and I thank you. CHAIRMAN HENN1NG: Commissioner Halas? MR. NADEAU: Commissioner. COMMISSIONER HALAS: My understanding of the BCC-directed proposal to be considered here -- because we're not even talking about density, we're still looking at 26 units per acre for a hotel or motel and we're looking at 16 units per acre for multi-family. MR. NADEAU: That is accurate, Commissioner. COMMISSIONER HALAS: Okay. Page 25 January 7, 2004 MR. NADEAU: I acknowledge that. But we are still looking at a reduction of building height, which will reduce dwelling units. And as referenced by my client who spoke before me, it could have an impact of $13 million. COMMISSIONER HALAS: And could I ask you one more question? MR. NADEAU: Please. COMMISSIONER HALAS: What would you think the average size of a multi-family unit would be in this location? MR. NADEAU: In this location? COMMISSIONER HALAS: Uh-huh. MR. NADEAU: The market for a waterfront luxury condominium would be in the neighborhood of 2,800 square feet-- COMMISSIONER HALAS: Or larger. MR. NADEAU: -- to 3,500 square feet. Yes, sir. COMMISSIONER HALAS: Okay, 3,500 square feet. Okay. That's bigger than my house. MR. NADEAU: Thank you, Commissioners. CHAIRMAN HENNING: That's why Commissioner Halas is moving. MR. SCHMITT: Next speaker, Rich Yovanovich. And Mr. Yovanovich is representing two clients, the Vanderbilt Inn, and followed by Rich Yovanovich, representing Signature Properties. MR. YOVANOVICH: Good afternoon. For the record, Rich Yovanovich. Commissioner Halas, I'm glad you brought up that point about the density. We weren't sure whether the density reduction was on the table or not on the table. And it appears that it's not on the table, so a lot of my remarks regarding going from 16 to three for residential, I will not need to make those, assuming your colleagues COMMISSIONER HALAS: That's brought up at a later date. Page 26 January 7, 2004 MR. YOVANOVICH: Assuming your colleagues agree that density is not -- density reduction is not on the table. I do want to just highlight a couple of points. ! mean, the original -- as I understood it, the original purpose of this thing was to deal with this new concept of canyonization, and that all the buildings were going to go to 100 feet on Vanderbilt Beach and we needed to do something to stop that. Your county attorney made a point of saying when you analyze a Burt Harris claim, you need to look at all the changes in the regulation and give an opinion as to what's your exposure if a Burt Harris claim comes. And Mr. Weigel originally opined that if you came down to 75 feet, assuming nothing else changed, he thought it was defensible and your exposure was limited. I don't necessarily agree with that, but there were a lot of other things that occurred with these regulations, including clarifying setbacks to eliminate wedding cake, you've eliminated the ability to go another 25 feet, from 100 feet to 25 -- to 125 feet through a conditional use process. You've imposed a maximum lot coverage standard and several other things that, you know, greatly impact the value of the property and what can you yield under today's regulations versus what's before you today on the proposal. And what I wanted to do -- and I want to point out something else: The question came up about well, you know, we changed the commercial height from 100 feet to 75 feet and there haven't been any Burt Harris claims. Well, that may be the case because at this time there's probably not a lot of market out there for 100-foot tall commercial buildings. That doesn't mean you won't have some claims in the future due to the height, but right now the market's probably not there to go to 100 feet on a lot of these C-4 parcels. So I wouldn't necessarily say that that's instructive in knowing that you're not going to have -- just because you went down from 100 feet in a commercial district to 75 feet, because there weren't any Page 27 January 7, 2004 challenges, that doesn't necessarily equates that because when you go down from 100 and potentially 125 feet down to 75 feet that you won't have any claims in a residential district. And also, I want to point out that the RMF-16 height changed in an era where there was no Burt Harris Act, so there really wasn't a whole lot a property owner can do under the Takings Law to challenge that change. So there is a different playing field that we're dealing with today in analyzing the impact of the changes in the regulation under today's status of the law than what happened in the past. I do want -- I have some graphics that were prepared to look at. What is the impact -- and I'll hand these out. Wanting to talk about the, quote, canyon that happens. And what we've done is we've prepared a graphic that basically shows you what is the distance between structures across the street from each other, based upon the new setbacks that's being proposed. You can see on the -- I guess that's the right-hand side on the right-hand side you have 200-foot buildings across the street from each other. Under the new regulations, your front yard setback is a minimum of 50 feet. So you know you already have -- between the two you have 100 foot of separation, and there's a 70-foot wide right-of-way in place right now. So you have, between those structures, 170 feet. That is plenty of space for light, the sun to shine through and hit the street and not cast shadows. Now, I'm sure there will be some shadows during a part of the day. But if you look to the left, the example is when you have two 75-foot structures -- am I right? I can't see that. Thank you -- you have two 75-foot structures across the street from each other. And what you'll see is, the setback, the front setback, is reduced to basically 37-and-a-half feet for each building, for a total of 75 feet, and you have another 70 feet for the road right-of-way. You actually have a reduction in light because the distance between the structures Page 28 January 7, 2004 is more narrow by reducing the height. You also -- and I'll show you another exhibit. When you go side-by-side, when you have two buildings that are side-by-side, some other interesting things occur. You have -- first when you look at the new setbacks, you'll see that by going to 100 feet, your maximum lot coverage is essentially 25 percent. When you go to the -- and then you go side-by-side, you'll see that you'll have, because you have a side setback now of 50 feet measured from the entire building, 50 feet to 50 feet will be 100 feet between buildings. When you go down to 75-foot structures, the distance between the buildings is reduced to 75 feet between structures. So you actually again create less opportunity for view corridors because the buildings could be closer together, based upon a requirement of less height. And you know what will happen, you'll -- you bring the height down, you're going to make the building wider because you're going to try to recover as many units as you can that way, and you're still going to use -- you're still going to lose units, but you're going to recover as many as you can by going wider. And in essence you're creating less light between buildings than you would if you were to allow the buildings to go to 100 feet. Now, keep in mind that this is limited application. Because there are very few lots on Vanderbilt Beach that can actually get to the 100 feet in the first place. So what we're -- what we're suggesting to you, and I think the graphics prove the point, that the existing regulations, now that you've tweaked the side setbacks and no longer let wedding cake occur, that change to the setbacks has a tremendous impact on light and view. It actually results in a better situation for light as far as on the street and view corridors than what's being proposed at 75 feet. So we believe that with those -- the original staff Page 29 January 7, 2004 recommendation addresses the issue of canyonization, is a fair compromise -- because it does give up the 25-foot conditional use, you wouldn't be allowed to ask for that anymore -- compromise to the Vanderbilt Inn. Again, we've said on the Vanderbilt Inn we think we're kind of isolated in the first place and don't really need to be in this overlay. It needs to be, everybody -- I always get my directions messed up -- south of us. But we should be excluded from it. But if we're not excluded from it, we think that the staff's proposal of 100 -- original proposal of 100 feet with the changes to the setbacks is better -- the better alternative than the currently proposed 75 feet, even with the density being -- remaining the same. I don't want to repeat what I said the last time. Unless you have any specific questions, I'll sit down at this point. CHAIRMAN HENNING: Commissioner Halas, do you have anything? COMMISSIONER HALAS: No. CHAIRMAN HENNING: Thank you. MR. YOVANOVICH: Thank you. MR. SCHMITT: Mick Moore, followed by Bruce Anderson. MR. MOORE: Good afternoon, Commissioners. My name is Mick Moore, and again, my family owns the Vanderbilt Beach Resort and the Turtle Club Restaurant. I'll be very brief today. At the last meeting we expressed a number of concerns with the proposed overlay as it existed at that time. Most if not all of those concerns seem to have been addressed in the proposed overlay that's before you today. Our main concern was whether or not we could make renovations and improvements to our remaining piece of property after the condominium project is completed. And that's a picture there on the visualizer of what we hope our property will look like some day. Based on the draft of the current overlay, it's our understanding Page 30 January 7, 2004 that it would not affect or restrict our ability to do that and, therefore, we would ask that the Commission let the morio -- moratorium expire, and we'd like to proceed with beautifying our property, renovating it and getting going. Thank you very much. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Bruce Anderson, followed by Douglas Fee. MR. ANDERSON: Good afternoon, Commissioners. My name is Bruce Anderson, from the law firm of Roetzel and Andress, representing the LaPlaya Hotel. I'll be brief as well. I think Mr. Weigel, his preliminary comments, he was offering you a safety valve, when you get caught, as you will, in a tight squeeze on a Harris Act and/or other claims. To have that ability to do a conditional use for an extra 25 feet, I think that's a good idea to allow for that. Doesn't mean you have to approve it, but it does allow someone to at least come in and apply for it and have the right to a fair hearing on it. We object to the language requiring one contiguous acre. That's not required anywhere else in the county zoning code that we're aware of. Mr. Schmitt said that it had been reported that LaPlaya had double counted the bay side acreage for density. And I don't know who that report came from, but I've checked with my client and that is not the case. If the county has an enforcement problem where they're concerned about somebody that owns on both sides of the road, moving -- you know, counting the bay side for density purposes twice, there's a less drastic means than proposed here to do that, and that's simply to require a deed restriction to be recorded on the bay side that simply states that the density that was otherwise available on this property has been used up and moved across the street. No use -- no need to have a blanket prohibition, as proposed. Lastly, I'll address myself to the issue of rebuild provisions. We took a look at the residents' proposed rebuild policy, which I don't believe was presented to this Board yet, and I wasn't even Page 31 January 7, 2004 aware of it the last time you all had your hearing. It may need some tweaking, but in general we are in agreement with the residents' proposal for a special rebuild policy within the overlay area, so that if a property -- existing structures are destroyed, whether it is by fire or hurricane or some other reason, that they can rebuild exactly what they have today. Everybody knows what's there, we're comfortable with that, and that they would be allowed to rebuild just exactly what they have today. The way your rebuild or post-disaster, it's called, policy in your Land Development Code is today, it might allow a rebuilding of an existing structure that was destroyed if it's destroyed by a hurricane, but it would not allow a structure to be rebuilt if it's destroyed by fire. And doesn't seem to make much sense if it's destroyed and you want to allow people to be able to rebuild what they had and not penalize them, it shouldn't matter whether it is an act of God or a negligent fire. And I'd be happy to answer any questions that you might have. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: I think the reason that you find that this is a -- the Vanderbilt Beach overlay is looking at the one contiguous acre, and you said it's no place else in the documentation of the county, that's one of the reasons that we had an overlay is it was going to be an area that we were going to address because of the high growth potential that's there and the canyonization, as they call it, taking effect. And this is one of the reasons that the residents got involved actively and decided that-- petitioned the County Commission to whereby we said yes, we need to take a look at that whole area. And that's why we looked at one continuous acre, because of the fact of the shenanigans that's been pulled up there in the years past. And we want to make sure that those loopholes are closed so we don't have those problems in the future. Page 32 January 7, 2004 CHAIRMAN HENNING: Commissioner Fiala? MR. ANDERSON: The only shenanigan I'd heard about was today -- MR. SCHMITT: Well, let me correct the record, they -- MR. ANDERSON: -- and it was my client. CHAIRMAN HENNING: They don't have any density on the east side of Gulf Drive, the LaPlaya. MR. SCHMITT: I just pointed the LaPlaya out as an example of how density could be applied, but no, I didn't say there was any -- I didn't make any accusation that there was a double counting -- CHAIRMAN HENNING: Right. MR. SCHMITT: -- of LaPlaya, so I want to correct the record on that. MR. ANDERSON: Thank you, thank you. CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Yes. Something you say really concerns me and that is the post disaster. I would think that we should be including something like a fire. Fire could be started by lightning or some kind of an electrical, you know, failure. And I would -- I would think that it would only be fair to allow the owners to rebuild to whatever they had before, if it was something beyond their control. CHAIRMAN HENNING: I'm going to go to Commissioner Halas before I'm going to go to our legal staff. COMMISSIONER HALAS: The other thing that you brought up, Bruce, was deed restrictions. The only thing bad about deed restrictions is the county does not enforce deed restrictions. MR. ANDERSON: But, and I have done this in the past, recorded a deed restriction in favor of the county where you have the ability to enforce it. You don't have the authority to enforce private deed restrictions, but a property owner can record a deed restriction and give the enforcement authority to the county. Page 3 3 January 7, 2004 COMMISSIONER HALAS: And how often has that happened? MR. ANDERSON: Well, I know I've done it at least one other time. COMMISSIONER HALAS: Okay. CHAIRMAN HENNING: Commissioner Coletta? COMMISSIONER COLETTA: I agree with Commissioner Halas on the deed restriction part. But the whole thing that got me really concerned was the exemption you said just for fire. In other words, if the building bums down, it can't be rebuilt, but if it's hit by a hurricane or some other nat -- disaster, be it manmade or natural, that it could be replaced. Can you explain that? MS. STUDENT: Yes, I can. I think there's a misunderstanding of Division 3.17, which is our disaster recovery ordinance. First of all, it talks about three types of disasters: A catastrophic, a major and a minor. And all of those disasters are recovered -- are covered. And the triggering event is the need for state or federal assistance. Also, disaster is termed in that provision as a natural or manmade disaster. So if there was a fire and it triggered the need for state or federal assistance, it would still be covered here. So I think there's been a misunderstanding, just because it's called post-disaster, that it's for hurricanes only. MR. SCHMITT: Let me clarify, to make sure you understand. Normally for state of federal disaster assistance, and that usually involves the activation of some kind of disaster response plan, federal disaster response plan. So it's either gubernatorial or a -- COMMISSIONER COLETTA: I understand that. I understand that. MR. SCHMITT: -- presidential declaration. COMMISSIONER COLETTA: But the comment that Mr. Anderson made was that he wouldn't be able to rebuild. He didn't say anything about insurance or getting paid. Page 34 January 7, 2004 MR. SCHMITT: That's correct, Commissioner, but that's applicable across the entire county. The question then becomes why even have an overlay in the first place? The overlay is to eventually get nonconforming structures to eventually conform. COMMISSIONER COLETTA: No, and I agree. MR. SCHMITT: If you were to apply a build-back policy specifically for RT zoning, as Mr. Anderson is recommending, then I could only point out from a planning perspective that it should be considered county-wide-- COMMISSIONER COLETTA: Well, no, my problem was is the fact he said that that was the only exemption, that you could build back for any other type of disaster that took place. Why wouldn't they be -- why wouldn't it be even across the board? I mean, if it got wiped out by a hurricane or it got wiped out by fire, the end results are the same, the owner's deprived of his property. And if one person can rebuild because it was a hurricane, the other person can't rebuild because it was a fire, I'm kind of lost at the fairness on that. MR. SCHMITT: I would have to turn to the County Attorney but -- from the history of this, but the policy was written to protect property rights, existing property rights, so they wouldn't be forced into a-- comply with the rezoning criteria. This is the same with RMF-16, we have RMF-16 buildings there right now that far exceed the current zoning. And if we were to exclude and say this was only applicable to the RT zoning, meaning a blanket build-back policy, no mater what damage caused the event, I've got RT zoning right in the same area that has to conform with the current LDC, and the LDC is only written to allow in the event of a disaster that is requiring state or federal assistance. That was many boards ago former policy. Now I'd have to turn to the County Attorney, Marjorie is well aware of the history of this, but it was written to allow in the event of Page 3 5 January 7, 2004 a hurricahe a build-back that would not be -- have to conform with any current zoning. They would be sort -- in essence vested under what their building was originally built at. If there was'a fire or some other local disaster not requiring state or federal assistance, the effort is to try and get nonconforming structures to conform. And so they would have to meet the current zoning standards. Marjorie? MS. STUDENT: Mr. Schmitt has expressed it exactly correctly, because in Division 1.8, we have provisions that if it's destroyed to a certain amount, they have to conform with what the rules are now. And that whole idea, and it's very common in all -- I can't say all jurisdictions, but it's very common in zoning to have that requirement so that you can get rid of the nonconformities. And our concern would be treating this differently than the rest of the county on -- COMMISSIONER COLETTA: Oh, no, I understand that -- MS. STUDENT: -- equal protection grounds. COMMISSIONER COLETTA: -- but I kind of lost the why a hurricane is considered different than a fire. Just because of the aid that comes? I -- MS. STUDENT: I think because it-- COMMISSIONER COLETTA: -- help me with this just a little bit. MS. STUDENT: -- affects-- COMMISSIONER COLETTA: -- in other words, don't burn it down, wait for a hurricane. MS. STUDENT: -- a broad variety of people all at once. It affects a whole class of folks all at once, due to the widespread nature of it, and that -- that would be the reason, because of the impact to a broad class of folks. So that you -- that would trigger that need for state or federal assistance. CHAIRMAN HENNING: Okay. MS. STUDENT: And I will say that minor disaster says Page 36 January 7, 2004 minimal need for federal or state assistance. MR. WEIGEL: In any rate, to summarize, both Joe and Marjorie have indicated that there is, in our Growth Management Plan, in our Land Development Code the policy to over time a goal of the elimination of nonconforming uses. To the extent -- to the extent that we create additional nonconforming uses of property, that is, property that has been developed, that is nonconforming to the standard that we have today or develop -- COMMISSIONER COLETTA: I understand all that. MR. WEIGEL: -- today, then that is -- the policy has been that we want to eliminate and reduce those and have replacement structures built to code, whether it's safety and other matters as well that could involve setback and other standards. It probably expresses itself with more difficulty on the multi-family unit, like a condominium or a multi-family unit like a hotel, because -- particularly a condominium, however, because you have multiple owners who had something who may not have something post -- I don't want to use the word disaster -- post damage to the individual structure. The policy in the code to date has been one where there's been such a broad community disaster that, using the trigger or measurement standard of state or federal aid, that we recognize that from a community standpoint it's asking too much not to allow them to build back. But on the individual structure standpoint, our policy has been for many, many years that whether it's a trailer or whether it's some other kind of structure, that if more than a certain percentage of damage occurs, the build back, if there is to be build back of the same kind of use, will in fact have to conform with the then current -- now current zoning. And it's been applied universally, generally across the county. And as Joe Schmitt indicates, if it were to be addressed, need to be Page 37 January 7, 2004 addressed, it probably could well be addressed generally. It sounds as if maybe some of the concern and question from the Commission and from the public extends itself beyond this particular overlay district review. I would suggest, just a gentle suggestion, that the concerns of rebuild should be no less than what the rest of the county has generally. But we have issues of CCSL and other things that are particular to this particular geographic area -- and so I think we must be careful in regard to the build-back, if we attempt to change it here now. CHAIRMAN HENNING: Okay. COMMISSIONER COLETTA: Thank you very much. CHAIRMAN HENNING: Commissioner Coyle? COMMISSIONER COYLE: Yeah, I would like to address that also very briefly. I had intended to bring this issue up during our debate after public input, but I think it's -- it's important to discuss it just a little bit here. In order to make this -- or to exemplify the problem, let's presume that you live in a condominium on the beach. Let's presume it was built 20 years ago. It doesn't meet the current codes from a number of different standpoints, one of which is fire suppression. It probably doesn't have central fire extinguishing systems in it. That is now a requirement. So the chance that there would be some kind of destruction to that condominium is more likely to come from a fire in a single condominium than from some widespread disaster that wipes out many, many condominiums. So you would not qualify for reconstruction under our catastrophic provisions. If you reconstructed your condominium, you very likely would find that you couldn't build it to the same number of units as you once had it. So someone has to make the choice that you no longer have a place to live. Page 38 January 7, 2004 And that is the fundamental problem here, because it relates to the overlay itself, which of course is doing things like reducing heights and densities and setbacks. And when you rebuild with those heights, densities and setbacks, you're going to find in some cases, not all cases, but in some cases, you can't build back the number that you had before. I agree that it is discriminatory to try to provide special provisions for one part of the county that you're not willing to provide to other parts of the county. I mean, where people live is where people live and they're very concerned about it. And I'm certainly not going to get in the business of trying to say that people who live in one community have certain rights and people that live in another community'do not have the same rights. So it is something we need to address. And that's not the only issue we need to address. And I'll hold the rest of those until later. I won't bore you with the details now. MR. ANDERSON: If I might, I'd like to respond to some of the comments. Number one, about creating this area differently, hey, folks, you've already made that decision by -- with this overlay. So, you know, don't act like we're stepping across some threshold that we shouldn't be. You've already done that by the very fact you're considering a special overlay which will have different standards than any other RT zoned land in Collier County and put the hotels that are in the RT overlay on Vanderbilt at a competitive disadvantage if they are destroyed by a fire, versus someone else in RT zoned land, so-- Secondly, I make a distinction between rebuilding and redevelopment. This overlay was primarily aimed at redevelopment and encouraging redevelopment to occur within these new standards. Redevelopment is something that someone voluntarily does. I'm going to go in and demolish my building and build a new one. That's Page 39 January 7, 2004 a choice they make. Rebuilding is far different. That's where you're destroyed, your building is destroyed by circumstances beyond your control and you simply want to rebuild what you had. That's a distinction between the two. And Commissioner Coyle, you were exactly right about your questioning about a condominium that got burned down instead of blown away that does not comply with the new overlay standards, they're going to have to have a post fire lottery to see who gets to still live in the condo and who gets tossed out. The rebuild policy, as I understand it from the residents, avoids that problem, and it does give special standards within an overlay area that you have already imposed, or proposed to impose special standards on. Thank you. CHAIRMAN HENNING: Thank you. Mr. Fee, thanks for your patience. MR. SCHMITT: Dr. Fee, followed by Dr. Richard Bing. MR. FEE: Good afternoon, Commissioners. For the record, my name Doug Fee. I'm president of North Bay Civic, and I'm here in support of the Vanderbilt homeowners, the beach and bay people that I've gotten to know over the last three years and who care deeply about their neighborhoods. They came forward two years ago asking for a moratorium so that they could study this area and thoroughly understand all of the issues. I attended many of the meetings, and there were hundreds that attended this. I've seen petitions where the neighborhood has . collected, and they certainly have given a lot of thought to the future. And I'm here in support of what you decided on the 10th of December. And I believe, when I look at this, the neighborhood may have said, you know, the average height is 54 feet, so let's try to strive for 54 feet. We also want to limit density. We want to go to four units. Staff, as well as other -- other people were saying no, let's keep Page 40 January 7, 2004 it status quo. And so the way I look at this is there's really a compromise that's been put out there. And I would like to suggest, their lives are in your hands and it's not as if one side is winning, it's deciding what -- for the future, and I support what you agreed to in December. Thank you very much. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Dr. Bing, followed by Kirk Sorenson. DR. BING: Richard Bing, 10951 Gulfshore Drive. Good afternoon, Mr. Chairman, gentlelady and gentlemen Commissioners. At 10:00 this morning, our planner called and said he had an emergency situation and he wasn't going to get here until 3:00. And he was going to be our lead speaker, and he is here, but we haven't had time to confer about what we intend to do today. So I'm not a planner, but I'm going to pitch in for him and I was going to be the follow-up batter afterwards. So if I could ask for just a little bit more time possibly than for one speaker because I'm doing two jobs, I would appreciate it. The bottom line is our Vanderbilt Beach zoning committee, which as you know is a coalition of the existing neighborhood associations, has put in a lot of time, effort time and work in this. And where you came from with your unanimous direction at your last meeting, at 75 feet over FEMA, is far different than what we would like, but we will accept that for a variety of reasons. I'd like to call your attention to -- in your handout that Don Schneider gave you today, on Page 73 that looks like this where it shows -- lot area coverage is the title, but it shows the dimensions of height for a 75-foot zoning building. And on the left it really maxes out at 115 feet, not 75. And this is where the truth in advertising issue that we've had comes, is you're really 40 feet more than what the zoning height is. And that's a little bit hard for us to swallow when we know the average in RT is 50 feet or at the most 60 feet from the ground. And this is almost double that. Page 41 January 7, 2004 But we understand there's a variety of reasons that you in your wisdom chose to go with 75 over FEMA, and we accept that. So that leaves us with a few other things that we compromised on. And one of those that you gave us was the contiguous acre. And we would like to tweak that a little bit. As you heard from earlier discussion today, although it may technically be sufficient, but we would like to add a few works to say not bisected by a public right-of-way to the contiguous acres, to make it crystal clear to everyone with what we mean. Now, you did hear from one condominium owner in RT, and you need to understand he spoke as an individual owner, not on behalf of his association. And there are others here in this association which do support our position, more than I think the one owner did. Density: We have decided to acquiesce on -- Jerry, you'll be happy to know, on 16 and 26 that you proposed. I'm going to be followed by Tom Pelham who is, as you know, the most foremost land use attorney in Florida. And I think those of you that heard him last time were duly impressed. And I think anything that you have in concern about Burt Harris and some of the other things he's -- issues that he will allay for you today will make this a relatively easy thing for us to finish. On build-back, Mr. Anderson's comments apply of course to all of us. I particularly happen to live in RMF-16 and we have the same thing. Our building is much higher than what the current zoning is for RMF-16, which is adjacent, by the way, to the Vanderbilt Inn. And we think that our attorney, Tom Pelham, will address that. But if it's not resolved by what he addresses, we would like you to consider it. And yes, RT is an individual zoning area. And maybe that's the place to start to consider what happens in the case of a fire in your deliberation today. And obviously you're going to have to have legal Page 42 January 7, 2004 advice on that. We are adamantly opposed to what I think I heard as a surprise today. Your County Attorney come with a 25-foot conditional use on top of what we have already, if you will, compromised with. That is unacceptable to us. Sixty-five feet above natural ground is where we were starting from and here we are now with actually a 115-foot building with 75 over FEMA. So to go any higher than that to me is absurd. Why did we get here in the first place over the moratorium? We were trying to decrease heights and densities. I think that's all I'll comment with at the moment. I'd like to ask you to indulge me to allow to give a few acknowledgments that I would have done at the end of this. And the first of those goes to a person who is under the weather and couldn't be with us, and the single biggest contributor really to achieving the moratorium in the first place and motivating us and working with us tirelessly to get here, and that was Diane Ketcham. And. secondly, I'd like to acknowledge the contribution of our Commissioner, Frank Halas, who has worked with us and gotten us to this point where we have reached what we think is a reasonable compromise. And then of course the CCPC and the EAC unanimously agreed with us, and they put a lot of time into this VBRTO. And of course for the team of both professionals and volunteers, which there are many of us on, and particularly I'd like to acknowledge the help of our vice chairman, Bruce Burkhard, who you have seen and heard actively both written and verbally in the past. And then finally I'd like to thank the five of you, in full anticipation that you will follow through with the commitments that you made at our December 10 hearing with 75 feet over FEMA and not wavering from that, by taking the high road today and taking the first step. Although it's a small step, I think it's a significant step Page 43 January 7, 2004 where citizens are beginning to have a little more impact on what is happening in Collier County from a development view in this particular RT overlay. So with that, thank you very much. MR. SCHMITT: Kirk Sorenson, followed by Joe Connolly. UNIDENTIFIED SPEAKER: Joe Connolly waives. MR. SCHMITT: Followed by Thomas Pelham. CHAIRMAN HENNING: How many more speakers do we have? MR. SCHMITT: I have Thomas Pel -- four more. CHAIRMAN HENNING: Okay. We're going to take a break after this next speaker. MR. SCHMITT: All right. MR. SORENSON: Thank you, I'm going to waive my time, please. Thank you. CHAIRMAN HENNING: Okay. We're going to take a 1 O-minute break. DR. B1NG: If I could ask. We do have other speakers. CHAIRMAN HENNING: Okay. We're going to be back, I promise. DR. BING: But I just wanted to say, if you call up a fiscal expert, we have one here, too. I don't think it's that relevant to the discussion. CHAIRMAN HENNING: we get back. DR. BING: Okay. CHAIRMAN HENNING: DR. BING: Thanks. (Brief recess.) CHAIRMAN HENNING: Thank you. Thank you. Our next speaker? We're going to speed this up when Okay? Everybody take their seats, please. Page 44 January 7, 2004 MR. SCHMITT: Commissioner -- or Mr. Chairman, for the record, I first want to go back to the issue on build-back. Ms. Student, County Attorney, Assistant County Attorney and staff, and Dave Weigel have been talking about this build-back policy. There is some ambiguity in the regulations, so Marjorie, if you could? MS. STUDENT: Yes. And this takes us takes us back to 1.8.10 of the code. And I don't -- ! won't go into a lot of detail, but it talks about nonconforming residential structures and, for purposes of that section, they are duplexes, detached single-family and mobile homes. And then there's another paragraph of the same section that says: Notwithstanding the foregoing restriction, any residential structure or structures in any residential zone can be rebuilt in the case of destruction. I've always interpreted that to mean those three things that were mentioned in the preceding paragraph, because it says for purposes of this section, it is those three things. And they can be built back to the height and density and so on, so that's how they can be altered, replaced and so forth. But there's another way it could be read to say even though multi-family isn't specifically culled out there, in another -- in a later paragraph it mentions boatels and hotels and motels, but it never mentions multi-family, there's an argument that could be made that it could include multi-family, but by the same token, we have principles of statutory construction that tell us unless something is specifically culled out, you can't just imply that it covers that. So what I'm here to tell you is there's an ambiguity in that. I've always taken a strict construction view of it that it was single-family duplex and mobile home. And I think staff will tell you we're looking at this provision to clean it up, and I just want to put that on the record so you would understand what, you know, our circumstance was. CHAIRMAN HENNING: Thank you. Page 45 January 7, 2004 MR. SCHMITT: To summarize, we're looking at to allow somewhat of a build-back policy for all nonconforming structures that are residential, to include multi-family dwellings. COMMISSIONER COLETTA: But we're going to treat the commercial structures differently? MR. SCHMITT: Well, commercial would be, yeah, type of a hotel or motel, those type of activities. So we'll be looking at that through an LDC revision to clarify. MR. WEIGEL: Well, Commissioner Coletta, I'll just join in that. Interestingly, in that paragraph that Marjorie was reading from, the last sentence of the paragraph includes hotels and motels as -- to be considered residential structures for build-back, as previously discussed. So the ambiguity that appears most clear to us, if that's kind of an oxymoron, is that multi-family residences are not specifically addressed, although mid-paragraph it says all residence may be built back, although at the beginning of the paragraph it mentions three particular types that isn't multi-family. But it does include hotels and motels, which aren't multi-family, but they're multi-unit. So it looks like here's a paragraph -- things don't look as bad as we may have thought a few minutes ago. There's a paragraph that begs some clarity, and the application of course hasn't really come to bear on staff, I believe, for many years. So -- and Susan Murray was standing up, she was about to tell you that it's in the process of being reviewed and brought back to you in the normal course of things. So there will be something back to you on that. COMMISSIONER COLETTA: If I -- if I may comment? CHAIRMAN HENNING: Sure. COMMISSIONER COLETTA: I do have concerns. I mean, of course, homeowners, you have great concerns for them, but the business people are also homeowners and they have an investment Page 46 January 7, 2004 with their units. And if they are in danger of losing that investment and can't replace it, I kind of wonder where the fairness in the world is on this whole thing. I appreciate the fact that, you know, you're looking into it a little bit deeper and that we may able to give some consideration. Because no one wants to wish a disaster upon anyone in this world, and when it does happen we would like to respond in some way to try to make them reasonably whole, rather than say now that you've suffered one disaster, now you're going to have a cutback of 50 percent of the rest of your property as the second disaster. You know, I'm really wrestling with this one. COMMISSIONER HALAS: Well, I think being clear -- I think that's pretty -- clarification here. COMMISSIONER COLETTA: Right. If that clarification takes care of them, then I'm a little bit more comfortable with this. MR. WEIGEL: As we know, commercial can enter into the living unit, a la hotel/motel type of thing that is commercial, it's not multi-family. Multi-family is a condominium. Interesting point, Mr. Coletta, is, though, when you talk about commercial that this does not seem to address, you know, storefronts, warehouses, businesses, per se. And so again, I think that the broad review that we'll concentrate here will try to answer all those kinds of questions in a uniform way. COMMISSIONER COLETTA: Thank you, sir. The next speaker, Tom Pelham, followed by MR. SCHMITT: David Depew. MR. PELHAM: Good afternoon, Commissioners. For the record, I'm Tom Pelham, 101 North Monroe Street, Tallahassee, Florida. The Fowler-White Law Firm. With all due respect to Dr. Bing and his kind words, I don't claim to be what he said I was. But I have been in this business a long time, for just as long as long as the color of my hair indicates. Page 47 January 7, 2004 And one of the things I think that I've come to be able to recognize is, in this context, are inflated claims. You know, it only stands to reason that no landowner ever wants to voluntarily give up whatever it is they have. And you're not ever going to have a landowner come before you and say fine, I give it up, I'm willing to be reduced, I'll take whatever you give me. They're always going to be claiming they're entitled to exactly what they claim that they have now. So you're always going to hear those kinds of claims, and I suggest to you that you should always consider them carefully. But you also need to take them with a grain of salt. Let's focus for a moment on this issue of value. We're hearing all of this talk which assumes that this overlay automatically and inevitably will reduce value. Setting height limitations can in fact have the opposite effect. And in fact the County Attorney, in his well written memorandum which he referred to earlier, himself acknowledged and recognized that very fact, that in many instances establishing a height limitation creates greater value. There is a healthy demand from people who want to live in a lower rise environment. You can find examples of that all around this state and other states. So when you establish these controls to establish a character and to protect the character of this area, you have to take into consideration that you're probably going to be increasing value, not necessarily decreasing the value of these properties. Let's focus on one site in particular, because there's been so much talk about it. And in response to all of the talk and the claims about Vanderbilt Beach, the associations whom I represent have done some research into the history of that project. And because we continue to hear these threats about potential Burt Harris claims, let's take a close look at this situation so that you'll understand how this ordinance, if adopted, does in fact affect, if it does at all, the legal rights under Burt Harris of this property owner. Page 48 January 7, 2004 Burt Harris applies only if the regulation inordinately burdens the property. And there is a definition of inordinately burdened, and that is if it makes it -- creates a situation where the owner is permanently unable to obtain the reasonable investment-backed expectation, which it has, or is left with an unreasonable use. What exactly were the reasonable investment-backed expectations of the owner of the Vanderbilt Beach Inn site? This property was purchased in 1972 for the purpose of building a two-story motel. And that is exactly what the owner built on that property. During the course of the construction, the county adopted a new RT zoning district with a height limitation, which there had not been previously, and established a 75-foot height limitation from the ground level. And then subsequent to that, in 1976, the current principal and owner, Mr. Nerad, bought out the company that owned the site. And at that time, there was a two-story motel on the property and there was zoning which allowed only a 75-foot building from ground level. Those were the investment-backed expectations. There was never any reasonable investment-backed expectation here of being able to build anything more than there was on the site, or possibly a 75-foot building under the 1976 zoning ordinance which was there -- already there when they bought it in 1976. So there is no reasonable investment-backed expectation here to build a 100-foot building or a 125-foot building or taller. That's simply not the case here. It is not an unreasonable use of this property, therefore, to say that you will be allowed to build up to a 75-foot building over the FEMA elevation. That is the most reasonable of all uses, because that was what was allowed at the time that the current principal bought this property. So in my view, there would be absolutely no merit to any Burt Harris claim on this property if this overlay passes. And to me, the Page 49 January 7, 2004 very idea that a height restriction of 75 foot above the FEMA elevation on property that was bought for the purpose of building a two-story motel and that when it was subsequently acquired by the current principal was limited to a 75-foot building above ground level, that a Burt Harris claim could have any merit. I don't think you have to be afraid of a claim simply because one -- someone threatens to bring one. I want to address a couple of oth -- a couple of other issues that have been discussed. There have been suggestions made that the county should not adopt this ordinance unless it creates an MSTU to collect money to pay for the defense of any legal action that happens to be filed. We just want to point out that we don't believe that Florida statutes authorize local governments to establish MSTU's for any such purpose. The purposes for which those taxing districts can be created are spelled out in the statute. They aren't authorized to be used just to collect money to defend lawsuits. So we don't know how serious the proposal is about that, but we would respectfully suggest the county has no authority to do that. Lastly, there's been a lot of discussion about this build-out policy. And we have listened to (sic) great interest with it -- to that discussion, because we have also carefully studied the existing language in the county's existing rebuild policy. We find absolutely nothing in the language of this policy to support the contention that it would not apply to destruction caused by fire, for example. The language of the build-out policy is very, very clear. It applies in situations where there is damage by natural or manmade disasters, without limitation. Fire can be either a natural or a manmade disaster. For example, it might be natural because it's caused by lightning. It may be manmade because it's due to arson or some accident. But it is a disaster. And when you look at the definitions that accompany this, there Page 50 January7,2004 MR. PELHAM: MR. SCHMITT: B.J. Savard-Boyer. are definitions not only of catastrophic disaster and major disaster, as staff pointed out, but there's also a definition of minor disaster, which covers situations where the locals are able to cope with it. The fire starts, the local fire department comes down. It is still a disaster under your code, under the existing language. So we would suggest that if the existing language does not do what you intend for it to do or want it to do, and in view of the dispute about the proposed special policy, that maybe it is something you should take a look at county-wide. But we respectfully disagree with the interpretations that have been offered of the existing rebuild provision. CHAIRMAN HENNING: Thank you. Thank you very much. David Depew, followed by the last speaker, MR. DEPEW: Good afternoon. For the record, David Depew. I'm not going to go through any kind of long presentation, I just want to piggyback on what Mr. Pelham said. When I first did the analysis for the residents on the proposed RT overlay ordinance, I also took a look at the county's build-back policies. And one of the reasons the original draft had a build-back policy in it was because I felt there could be indeed some ambiguities county-wide regard to the application of the county's policy. I would support the idea that the staff has already articulated to you, that that policy needs to be looked at. I think, as indicated by Mr. Pelham, that there are some concerns that could be raised, and we -- we're not in complete agreement with the staff perception, and just the fact that we're not in agreement with the staff perception would indicate to you, as the attorneys like to say, it's arguable. Which means you probably need to go take a look at that and put some clarifying language. Other than that, I would urge you to support the draft that is Page 51 January 7, 2004 being referred to as the December 10th draft, as being a reasonable compromise with regard to the interests involved here. Thank you. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Mr. Chairman, your last speaker, B.J. Savard-Boyer. MS. SAVARD-BOYER: Is this on? Yes. Good afternoon, Commissioners. I just would like to take the time to thank you very much for all that you've -- all the time that you've put into this and hope that the action of your December 10th meeting continues through to today, and that your decision will help us as homeowners maintain some of the character in the neighborhood that we live in. One more thing I would like to say is that I am not a gang member, and Diane Ketcham is not a comrade. We are all intellectual, independent-minded neighbors. And that's how we joined together, to keep our neighborhood as one. Thank you. MR. SCHMITT: There are no more public speakers, Mr. Chairman. CHAIRMAN HENNING: Pardon me? MR. SCHMITT: There are no more public speakers. CHAIRMAN HENNING: No more public speakers. Commissioners, the language that we directed our staff to bring back is before you. And I know that our County Attorney had some concerns about possible legal action and recommended with a 100 foot. So is there any discussion? COMMISSIONER HALAS: I think at this time -- MR. SCHMITT: Mr. Chairman, if I could clarify. I believe, County Attorney, that's a 100 foot you clarified, but it was with -- at three contiguous acres or more, correct -- CHAIRMAN HENNING: Correct. MR. SCHMITT: -- lot for the 75-foot, 25-foot conditional use? MR. WEIGEL: That is correct. Page 52 January 7, 2004 MR. SCHMITT: Okay. MR. WEIGEL: Additionally, I had mentioned, Dr. Bing mentioned that in regard to the term contiguous acre, he suggested language of-- to assist, stating not bisected by a public right-of-way. And I would agree that that is a logical and appropriate addition, if the Board would wish to entertain that. MR. SCHMITT: But the proposal that the Chairman just presented for a 25-foot conditional use above the 75-foot limit was for any lot of three acres or greater. CHAIRMAN HENNING: And he said correct. I think we all heard that. Commissioner Halas? COMMISSIONER HALAS: I would like to leave it at 75-foot. I think that from what we heard from the attorney from Tallahassee, that I don't feel that we are going to put the county in undue jeopardy, and I feel that we ought to maintain the 75 foot. This is what the citizens have been working on all the time. They've -- in fact, they started off at 54 foot and realized that they were going to have to make some compromises, and so they went to 75 foot, including FEMA. So I really think that we need to address this. And the reason being, we're not picking on any particular property owner. Because the possibility exists out there in some of these RT areas, that there could be a combination of lots put together, and therefore, where -- we'd really be not addressing the real issue and that is building heights in general. So I would like very much to see 75 foot remain with no condition. CHAIRMAN HENNING: Commissioner Halas -- Commissioner Fiala? COMMISSIONER FIALA: Yes, I was just wondering if that was a motion. Page 53 January 7, 2004 COMMISSIONER HALAS: I haven't gotten that far yet -- COMMISSIONER FIALA: Oh, okay. COMMISSIONER HALAS: -- but I'm just putting my two cents worth in. But I will make a motion if-- but I'd like to have discussion here with my fellow Commissioners. CHAIRMAN HENNING: Commissioner Coyle? COMMISSIONER COYLE: Yeah, I would like to raise a couple of issues for your consideration. Not because I disagree with the proposal, because I don't disagree with the proposal, but there are things that I would urge the Commissioners to keep in mind as we move forward on some of the other things that are happening here. One of course is a CCSL, the coastal construction setback line, and the new provisions for that -- COMMISSIONER HALAS: We haven't even gotten into the CCSL line. COMMISSIONER COYLE: I understand. I want to bring up a couple of issues that impact this particular decision, because it is important that we keep them in mind when we get to that point. We are in the position of layering different requirements on a single area. We're developing an overlay, which I support, by the way, and we're also considering the imposition of a CCSL ordinance which will in many respects further limit land use in the overlay. And then the rebuild position-- rebuild provisions in our ordinance do have to be addressed. They can have very unfortunate impacts on the residents that we're trying to help with the overlay. Now, to -- as an example, the CCSL will -- a strict interpretation of it will restrict the depth of the lot. The overlay restricts the width of the lot and the depth of the lot, and we have different requirements being overlaid on top of each other as we proceed through this process. We have a Growth Management Plan which for some reason says, in the future land use element, that four units of density are Page 54 January 7, 2004 permitted but provides dens -- bonuses that take us up to 16. I think we have to address that. And the other thing that I believe might have been missed in this whole process is that in a desire to reduce densities and perhaps limit traffic, there has not been an incentive, as far as I can determine, to encourage rezones from commercial to residential, because commercial does in fact create more traffic than residential does. So I'm merely pointing out that we have multiple actions going on here in Collier County government that are likely to contradict or perhaps even undermine the overlay. And we need to keep that in mind as we move forward. And with that, I would say that I am in support of the overlay as it's currently specified. COMMISSIONER HALAS: Yeah, Commissioner Coyle, maybe you could enlighten me a little bit in regards to when you addressed the density issue, that's not even on the Board. And the overlay basically is just in the Vanderbilt area. So if you would kind of-- kind of refresh my mind on what you're talking about as far as the density issue, the 14 units per unit -- or acre versus 16 units per acre. COMMISSIONER COYLE: No, I wasn't talking about 14. The future land use element of our Growth Management Plan specifies that the permitted density is four units per acre. It then goes on to give certain bonuses. And it actually does some subtractions, if it's a high traffic area. But it moves that permitted density up to 16, and that's where we get the 16 units per acre that are currently permitted by policy but not by the Growth Management Plan. So here's the problem: People read the Growth Management Plan; the public has a right to think that we should abide by our Growth Management Plan, growth Management Plan says four units per acre. We're actually, by policy, permitting 16 units per acre. Page 55 January 7, 2004 It causes the same kind of confusion and distrust, I think, that this height -- the truth in height issue has caused in the past. We need to solve that problem. And we need to do it through -- by examining the Growth Management Plan and making it more consistent with what we're really doing. COMMISSIONER HALAS: this right at the present time. COMMISSIONER COYLE: But I don't think this really affects It does not. And that's why I've said that I support the overlay as it is. I'm merely saying this because we -- there are at least four actions that this Board has to take in order to develop a consistent policy with this area and to make it consistent with the overlay. Otherwise, we're going to have inconsistencies that are going to cause confusion among lots of people. COMMISSIONER HALAS: Well, I think this Board has done an outstanding job in the last year, in fact probably the last two years, in regards to addressing issues that we realize that -- of inconsistencies not only in our Growth Management Plan but also in our Land Development Code. And I think that staff and everyone has worked diligently to try to find figure out where the loopholes holes are, where the problems are, and I think we're addressing it. It's just a matter of time. If there's no other -- CHAIRMAN HENNING: I would like to say something, if you don't mind. COMMISSIONER HALAS: Sure. I'm sorry. CHAIRMAN HENNING: Commissioner Coyle, there's nothing wrong with the Growth Management Plan. The RT zoning was adopted back before there was a Growth Management Plan. The only problem is it wasn't written within the Growth Management Plan of the existing zoning, it was written in the Land Development Code. And same way with the coastal line setback was adopted after there was some intrusion of that coastal line setback. Page 56 January 7, 2004 COMMISSIONER COYLE: Well, you see, that's exactly the point. There are inconsistencies that the public doesn't understand. And trying to explain to someone why the future land use element says you can have four units per acre and in fact by policy we're permitting 16 is a very difficult task, and it results in a lot of misunderstanding. And I think we need to continue to do what we have been doing, which is to review our Growth Management Plan and our land development codes to make sure they consistently reflect what we're saying and what we're doing. CHAIRMAN HENNING: Okay, are we saying -- and I hate to get too far off the subject. Are we saying that we want to explain more history of why you want to change the density within -- to reflect the Growth Management Plan? COMMISSIONER COYLE: I would like to see all of the elements of our plans consistent. CHAIRMAN HENNING: Okay, that's kind of vague to me. MR. SCHMITT: Mr. Chairman, if I could offer. We've identified this, as we call it, glitch, and we'll be coming back to the Board in the next series of Growth Management Plan amendments to seek policy guidance from this Board in regards to the application of the criteria in the future land use element versus what was adopted back in 1991 when the comprehensive zoning review was conducted by this county when it created the current existing zoning that is in the RT zoning right now. Commissioner Coyle is correct, the FLUE identifies four units an acre, reduced one unit. And if it's in a coastal or a traffic congestion area -- of course there are applications of density bonuses for affordable housing or for a rezoning from commercial to -- or from-- yeah, commercial to residential. So we've already identified this and we're coming back at a future Growth Management Plan amendment cycle to identify or at Page 57 January 7, 2004 least get guidance by this Board in regard to how we should proceed to correct that noted glitch in the Growth Management Plan. CHAIRMAN HENNING: So you're going to get some guidance before you start working on it? MR. SCHMITT: We'll certainly accept guidance now, if you want to give us that guidance. CHAIRMAN HENNING: Well, we're working on something else now. MR. SCHMITT: Yeah. CHAIRMAN HENNING: But I would hate to see our staff run off and work on something that the Board did not give direction to. Mr. Weigel -- and I appreciate your comments, Commissioner Halas, on the Attorney representing the citizens. I thought he is well spoken. But he represents the citizens, Mr. Weigel represents the Board of Commissioners, so if you don't mind, I'd like to ask questions. COMMISSIONER HALAS: Sure. CHAIRMAN HENNING: The statement is the Board of Commissioners cannot create an MSTU for such potential lawsuits; is that correct? MR. WEIGEL: It's probably correct as taken directly. Typically a municipal service taxing unit is to provide municipal services, services that are not generally provided by the county government. There is an iteration, there is a listing of services that may be done by form of an MSTU or, quite frankly, an MSBU, a benefit unit, in Chapter 125 of the Florida Statutes. 'As a home rule power county that we are, the law of the statutory construction is is that the local government, such as a county, can enact any law that is not specifically prohibited by general statute or special act. There are probably -- I don't want to overstate this, but in regard to an MSTU to provide for, call it a defense fund, the fact is is there Page 58 January 7, 2004 may be a way to get there. It's probably not easy. Part of the -- part of the review that I or anyone would want to do would be the question of a benefit unit as well in terms of the fact that we're talking about an implementation of regulatory standards which are arguably put in place to benefit specific properties. And so I will not say that the statement is absolutely inapplicable, as provided by Mr. Pelham, but that in fact there are limitations to MSTU's, there are limitations to MSBU's, and I think that it's -- I don't feel comfortable to say that it's -- that some form could not be brought forward to provide an assistance. CHAIRMAN HENNING: Okay. You're -- you have some concerns about larger lots, contiguous lots up there with the 75 foot, and you thought that the conditional use of an extra 25 foot might put us in a better legal positioning? MR. WEIGEL: Well, I thought it would in the sense that -- in the sense that the larger lots, arguably, with a potential for a taller building, will have the same proportionate side yard and rear yard setbacks that are required in the smaller lots; that is, half the building height. Additionally, the fact is is that a conditional use is not a matter of right, which is what is in place presently under the -- under the zoning code for the RT district that exists right now, temporarily on hold because of moratorium. But it is a matter of right, looking at the language of the code, that they can go 100 feet with a potential for conditional use to 125 feet. So I think that -- I think that part of the discussion that inevitably would be had at some point in the future, whether it had to do with the conditional use application that would be heard by the Planning Commission and the Board of County Commissioners, or in a lawsuit claiming an inordinate burden placed upon property by a -- what would be considered a severe reduction of development standard, is that the conditional use, if a tool is there, may in fact give Page 59 January 7, 2004 the Board the opportunity to review and determine on a property-by-property basis if in fact it's appropriate to grant such use. But nothing is guaranteed. And aside from a conditional use being granted on a case-by-case basis with public input at the time, the 75-foot regulation applies -- would apply to all properties, all lots, all parcels, all lots that are aggregated, multiple lots coming together. But my thought was that the Board might consider a standard of three acres or more of aggregate lots or one lot that's that big, and still achieve -- potentially achieve the goals of the overlay project in the first place, which was the non-canyonization effect of future development or redevelopment, light and air and view corridors. With further setback, the visual and dimensional standard from an off-property perspective is reduced. And there are examples of that throughout the county where very large buildings placed deep on lots that are large lots do not have nearly the same visual aspect as some of the very large buildings that are with very short setback that exist along Gulfview Drive -- Gulfshore Drive, up there in Vanderbilt right now. So this was just placed as an element for consideration of the Board in terms of the fact that if there is contest or question of someone attempting to develop property higher than 75 feet, that there would be a basis for them, for such property owner, to come forward. And that basis is set by you and not by a court. And that is that it must be at least three aggregate acres or more. And you have the ability to shape and list and have a dialogue of discourse that you typically have had, and always have the opportunity to say no. CHAIRMAN HENNING: So on a 30-foot -- 30 linear foot lot, if you wanted to build a 100-foot high building, you would have 100 foot on each side -- or no, it would be 50-foot on each side? MR. WEIGEL: Half the building height on each side, on all sides. Page 60 January 7, 2004 CHAIRMAN HENNING: On all sides. MR. WEIGEL: And I don't lose sight of the fact that many of the lots, the parcels along -- in this RT district are fronted on one side by the beach and on the other side by the lagoon or the bay. And so the width and depth of lots is very limited for so many of the lots down most of the strip of that -- of the district area. And so from that standpoint, there is little practical ability for an accumulation of significant acreage to allow for a qualifying property arrangement to come in and ask for a 25-foot conditional use beyond 75 feet anyway, looking toward the potential redevelopment aspects that go forward. There are a few parcels that exist right now in excess of three acres or four acres which might have the opportunity to come in and make their case as to how they do no less, achieve no less of the height and view corridors that are being -- that will be achieved on the smaller lots in the future, if the Board adopts the 75-foot standard. CHAIRMAN HENNING: So -- and I guess -- my understanding is most of the lots up there are 100-foot wide. And by virtue of just the language of the setbacks, you couldn't build a 100-foot lot on it. If 50 foot on each side, you would have no space to put a -- MR. WEIGEL: On the 100-foot lots, if they remain 100-foot lots that are not redeveloped with purchase and ownership of other lots, a 100-foot lot, you can only build about a 40- or 50-foot building, and it's going to be very narrow. CHAIRMAN HENNING: Right. COMMISSIONER HALAS: Unless, unless you count -- took and combined a couple of lots together, and then you're back up to where you could go over 100 foot. CHAIRMAN HENNING: Right, and then, but then -- MR. WEIGEL: Right. You still have a front and rear setback that you have to contend with. So it may be a longer building along Page 61 January 7, 2004 the road, but it's going to be narrow front to back. And from a practical standpoint, it probably isn't very developable that way. CHAIRMAN HENNING: If you combine the lots, what you would get is even more of a view corridor at the beach. And I think that's what I heard originally when the citizens came to the Board is canyonization of Vanderbilt Beach, blocking of air and light. MR. WEIGEL: Yes. CHAIRMAN HENNING: So increasing the setbacks, I think we have accomplished what they want, but I have concerns with the proposed language and Mr. Weigel's comments of-- putting the taxpayers monies at risk. And I won't say anymore. Commissioner Halas? COMMISSIONER HALAS: Well, I have concerns. I look -- read this letter dated December 1st, 2003 that the County Attorney wrote. And in this letter, no place did it state anything about looking at separately any particular properties that were three acres or greater. And my question to the attorney is, when did this all come about? And why all of a sudden are we waffling on this? MR. WEIGEL: Okay. Well, I don't consider it waffling, but I spoke to the Planning Commission and indicated that they -- I felt that they should consider 75 feet as one of the elements to consider as a regulatory standard amendment in the amendment process, because that had not been offered by staff. And I felt at that point separate from staff, that it should be on the table and I wanted to provide some assurance that I felt that 75 feet was legally defensible in my view. That doesn't mean that we absolutely win the case, it doesn't mean that we would potentially have or not have significant and even multiple litigation from multiple property owners in that regard. But I felt that an argument could be made that it was defensible. But I stated to the Planning Commission at that time and Page 62 January 7, 2004 specifically stated in my December 1 st memorandum that I wrote, that the 75 feet, if implemented, must be taken into context with other regulatory standards that may also be implemented. And it was from the standpoint that when staff came back at the first Board meeting with what I called at the time a retooled recommendation, which provided for the significant side -- front, side, rear setback standards and the removal of a parking wing, which, by the way, can be and should be distinguished from wedding cake generally, which is multi-tiered with several tiers going up. But previously the parking wing was still in there, which came out. And I felt that it was -- I felt that it was appropriate to consider -- consider something differently. At the Board meeting, at the tail end of the meeting I indicated that I felt as the attorney that it was appropriate to tell you, and I did, that the 100-foot standard, with these other measures that were recommended by staff, achieve the goals -- would appear to achieve the goals of the reason for the overlay study in the first place. Notwithstanding that, if 75 feet were to be implemented as one of the several measures to come in to play here for the future development standard, one will note that with the very small parcels, you can't build above 75 feet, whether it says 100 feet or not, because the land is just too narrow or not deep enough. But for those larger parcels, of which there are a few, or in the future where there may potentially be some aggregation of lots to have a large acreage parcel or property, it is, I think, potentially achievable to have significant or even better, posSibly better light, space, view corridors than you're ever going to achieve on the 100-foot lots, which is the majority of the lots that are there. And so from that standpoint, I felt it was necessary to bring this forward. I spoke with Don Schneider at the termination of that December 10th meeting about this, but since it wasn't forthcoming from any other staff source, I felt that I still, as your counsel, needed to bring it Page 63 January 7, 2004 to your attention as a matter to consider. But as I mentioned at the beginning of the meeting, I think we're in an area where there's been wonderful discussion provided by experts of several sources representing several parties here. And so there will be a very interesting record when we come to contest, if we should we come to contest on a Burt Harris or any other kind of lawsuit that's filed later on, regardless of whether the Board adopts a 75-foot standard with no conditional use, or a conditional use for larger parcels. As I did indicate at the beginning of the meeting, if you look at that kind of that gauge of potential risk, I think that -- I think that most reviewers of property regulation, comparing with the Burt Harris Act will say that it seems pretty basic, that the more standards you put in place raises the potential for contest, if not successful lawsuit of a Burt Harris nature. I cannot predict that the reduction of units with the density and intensity remaining the same for 75 feet on all parcels will result in a winning hand for the county if there is a Burt Harris lawsuit, but I can predict that if there is a potential for a 25-foot conditional use and an applicant who meets the application standards comes forward and a full hearing is held with due process, that if the Board makes the appropriate determination, whether it's yes or no at that point, it's -- I think provides additional assurance from a legal standpoint of defensibility. But it's just a question of degree. And I will -- want to give assurance to Mr. Halas, Mr. Henning and all the Commissioners that it's impossible to predict absolute defensibility and the winning hand in a lawsuit of this nature. I do know from experience that a lawsuit of this nature requires a lot of time, a lot of expenditure, just to maintain the status quo. So I think I'm not remiss to bring this up. That's all. COMMISSIONER HALAS: I have one following question. If this is the case, then why did we wait till 4:00 yesterday afternoon to Page 64 January 7, 2004 bring this forth to me so that I could pass it on to the people out here in the audience? If you already realized the consequences on December the 10th, my concern is why wasn't this brought forth and why wasn't staff put on notice in regards to this until just as of yesterday afternoon? MR. WEIGEL: Well, staff was on notice in the sense that I had the communication with staff. Staff determined not to put it in their written executive summary and backup that came forward. And when I saw that it wasn't there, I felt I better come forward with it myself. COMMISSIONER COLETTA: If I may, Mr. Weigel, the -- what you're suggesting is to possibly add some language in there as far as a variance procedure for lots of a certain size to be considered for a 100 foot? MR. WEIGEL: Well, the terminology is conditional use. That's consistent with what we currently have there, which allows for a conditional use for 100 -- for additional 25 feet beyond 100 feet, which is the standard for all properties up there right now. And I was just suggesting that that standard for conditional use be reduced in application to only certain large acreage properties for a potential to develop to 100 feet. COMMISSIONER COLETTA: But potential means variance? MR. WEIGEL: No, it means a conditional use, which comes before the Board and requires as super majority vote to approve. COMMISSIONER COLETTA: I understand what you're saying, so-- MR. WEIGEL: A vari --a variance, by the way, is only a mere majority vote to approve. COMMISSIONER COLETTA: And I think some of the concern here was the fact that there's been a difference of advice and opinion from one meeting to the next. And that's fine. Because, I mean, when you research things and you go forward, new facts may Page 65 January 7, 2004 become present. And I -- you know, it's just that the time that we have to digest this is very short. MR. WEIGEL: I recognize that and I apologize now to the Board. COMMISSIONER COLETTA: And I have some concerns, you know, after we understood certain parameters that we were working with and all of a sudden we're broadening them a little bit. This -- what, is this the last reading on this? COMMISSIONER HALAS: This is the last reading. This is the -- we're going to -- we're in the process of deciding what we're going to do here. My feeling on this is that if you didn't feel that this was of importance or if you thought it was of great importance, you would have gotten back to us a lot sooner on this than being at 4:00 or the 11 th hour on this issue. So I am willing to say that we establish 75 feet and that we establish the setbacks that have been set forth in the first reading and also the one contiguous acre with the additional language of Dr. -- that Dr. Bing suggested. CHAIRMAN HENNING: Before you make that a motion, Commissioner, if I could throw this out here: If we can take -- since there is some concerns about some 1 lth hour language, if we can take this and make recommendations to the Planning Commission of 75 feet with a conditional use of 25 feet for three acres or more, then I could vote for-- COMMISSIONER HALAS: Okay, why don't we do this then, why don't we say 75 feet with conditional of 25 feet? CHAIRMAN HENNING: And go ahead and adopt it? I mean, I can support that. I'm only concerned about the cost, getting advice from the County Attorney. So you don't have to say anything to that. COMMISSIONER HALAS: Can I call one person back? CHAIRMAN HENNING: Sure. Page 66 January 7, 2004 COMMISSIONER HALAS: I'd like to call back Tom Pelham and see if he can lend us some additional information on this. I mean, we've got the County Attorney and we have an attorney from -- here from Tallahassee that's dealt with this. Maybe we can get some clarification on where we're at on this. MR. PELHAM: Well, as I listened to the discussion by the County Attorney, the thing that concerned me greatly is the nature of a conditional use permit. As I listened to the discussion, and perhaps I misunderstood the County Attorney, he seemed to be suggesting that it would be discretionary with the Board as to whether or not they would have to grant the additional 25 feet. But that is not the law of conditional use permits. The law of conditional use permits, as handed down by the Florida Supreme Court, is this: A conditional use permit says that if you meet the following criteria, one, two, three, which must be listed in your regulation, the developer is entitled to do that use unless the local government says and proves that you don't meet the criteria, so CHAIRMAN HENNING: Mr. Pelham, we have four of them under conditional use, four criteria. But please continue. MR. PELHAM: Then it's not discretionary with the Board. Any developer who comes in here and says I meet each one of these, is going to get the conditional use permit on that site, whether you want him to get it on that site or not. And that is the law. It will not be discretionary for you to decide on a case-by-case basis, as you want to, whether you grant it or not. By law you will be required to grant it if the conditions are met. So the ultimate effect of this probably will not be just a 75-foot limit. In those cases it's going -- you're setting it effectively at 100 feet. CHAIRMAN HENNING: Well -- MR. PELHAM: That's going to be the practical effect of this. Page 67 January 7, 2004 CHAIRMAN HENNING: Do you recognize it would not be on all properties in Vanderbilt Beach? MR. PELHAM: Well, that raises another interesting question, why this necessity to carve out special treatment for some of the lots and not the others. I mean, that hasn't been made clear to me either, but -- CHAIRMAN HENNING: We're doing that now. In this language now that your clients are saying they could support, we're doing that right now by the setbacks. MR. PELHAM: Within the overlay area. CHAIRMAN HENN1NG: Within the overlay area. MR. PELHAM: Yeah. CHAIRMAN HENNING: We're not treating everybody special because of the setbacks, and it depends on the size of your lot. You can go up to 75 feet, but most properties cannot. Like it was stated, a person that has 100 linear foot on Vanderbilt Beach cannot go up to 75 feet, virtue of the setbacks. MR. PELHAM: Well, then how are they going to get an additional 25 feet up to 1007 CHAIRMAN HENNING: Well, we're talking about larger acreage -- larger lot sizes, that they can petition the Board under a conditional use to go up to 100 foot. MR. PELHAM: Like the Vanderbilt Beach side? CHAIRMAN HENNING: Like the Vanderbilt Inn. MR. PELHAM: Yes. CHAIRMAN HENNING: Vanderbilt Beach Inn, yes. MR. PELHAM: Yes. CHAIRMAN HENNING: But there's -- that's -- that might be the largest one up there. I can't testify to that, but that might be the large one up there. MR. PELHAM: But that's what I think the associations don't understand. At the time they bought the property, they weren't Page 68 January 7, 2004 entitled to do more than a 75-foot building. CHAIRMAN HENNING: I was just trying to clarify something for you. MR. PELHAM: Okay. So why should a special exception be carved out for that site so that they can go up to a height that's higher than what was in place when they bought the property? That's what I think the associations are having difficulty with. CHAIRMAN HENNING: Well, you know, my neighbor has a 75-foot lot and I have a 150-foot lot. I can put a hell of a lot bigger shed or a house on (sic) his, just virtue of the setbacks. MR. PELHAM: Well, I think my point was that you should not be misled into thinking that you're setting up a system that will leave it to your discretion as to what you do on each side. It will not be that kind of a system. You will be locking yourself into a system that, if these criteria are met -- and I don't know what the criteria would be for getting a conditional use permit for the additional 25 feet, I don't know how you would go about setting up those criteria. CHAIRMAN HENNING: It's already in the Land Development Code. Commissioner Fiala has a question for you. COMMISSIONER FIALA: Yes, I was wondering, if we're allowed this option that we're just talking about now to be considered for conditional use, wouldn't it further open us up for lawsuits? I mean, if we -- if somebody came in for the 25 additional feet and we said no, then they could say, well, you know -- as you say, there are certain criteria, and if they've met it, then we're opening up ourselves for further lawsuits, isn't that -- MR. PELHAM: Absolutely. I mean, I'm currently in court in two different cases appealing denials of conditional use permits, saying the local government had no right to deny them, because the record showed the developer met the criteria. So yes, you'll get litigation over it every time you deny one. Page 69 January 7, 2004 CHAIRMAN HENNING: Conditional use also has to meet the Growth Management Plan, Commissioner. COMMISSIONER FIALA: Yeah, but I mean, say for instance it did and we denied it, then we would certainly be up for a lawsuit, right? CHAIRMAN HENNING: Ms. Student? MR. WEIGEL: No, I didn't realize it was a question at first. Go ahead. MS. STUDENT: I'm happy to say that there are circumstances where this Board, based upon the competent substantial evidence in the record, as applied to the criteria in our code, has found the developer hasn't met them, and we have been upheld every single time that we've had a lawsuit on a conditional use. We've been sued sometimes when we've approved them and neighboring property owners have disagreed with that, and every single one we have won. MR. PELHAM: Well, I don't disagree that you may win if the developer fails to establish that he met the criteria. But I assume that you are establishing criteria that can be met. And all I'm saying is, if the developer comes in and shows that he meets those criteria, and that's what the record shows, you have no discretion under the law to deny it. That was my point, not Ms. Marchant's (sic) point. I'm not saying that if the -- if the developer actually meets the criteria -- does not meet the criteria that you can't deny it. I'm saying that if they meet it, you have no discretion to deny it, even though you would prefer not to see that on that particular site. CHAIRMAN HENNING: Okay. Commissioner Halas? COMMISSIONER HALAS: My motion still stands at 75 feet with no -- CHAIRMAN HENNING: Okay. COMMISSIONER FIALA: Would you restate your motion? CHAIRMAN HENNING: I never-- yeah, let's go ahead and I'll take a motion. Page 70 January 7, 2004 COMMISSIONER HALAS: My motion is that we accept the first reading of the Vanderbilt Beach overlay, and that was establish a height limit of 75 feet. CHAIRMAN HENNING: The one on the right-hand side? COMMISSIONER HALAS: The one on the right-hand side, the BCC-directed proposal of consideration. And that's -- and 25 -- and the density, as stated there, one contiguous acre with the addition of the language that Dr. Bing suggested. And that we adopt the new setbacks, both side yard, rear yard and front yard. COMMISSIONER FIALA: Second that motion. CHAIRMAN HENNING: Can you state Dr. Bing's suggestion, for the record? MR. WEIGEL: I can. COMMISSIONER HALAS: Okay. MR. WEIGEL: Thank you, Commissioner Halas. The language to be placed in the ordinance amendment or overlay amendment is, in regard to contiguous acre, is not bisected by a public right-of-way. CHAIRMAN HENNING: Okay. MR. WEIGEL: That will be placed in the proper context of sentence structure, things of that nature. CHAIRMAN HENNING: There is a motion by Commissioner Halas, second by Commissioner Fiala. Commissioner Coletta? COMMISSIONER COLETTA: Yes, I agree with Commissioner Halas, I think he knows what's best for his district. I think the fairness in this whole thing comes from the density allowed to take place in there. And when you look across the board on the whole thing, a person has a larger lot receives more density, they make it up for that. I realize that higher buildings bring better prices for the top floors, but if we're going to discriminate against someone that has a two-and-a-half acre, two-and-three-quarter acre Page 71 January 7, 2004 lot, and say that someone that has a three-acre lot is going to be treated differently, I'm a little nervous with that, when we've already covered this with the density ratings, where you're going to have more people on a larger lot. It's just that simple, you know. Fairness is fairness. I think we met that. CHAIRMAN HENNING: Okay. Anything else? (No response.) CHAIRMAN HENNING: I am not going to support the motion because of fearful of the taxpayers' money. But I'm hopeful that the citizens win. I do want to support the citizens in what they want. All in favor of the motion, signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HALAS: Aye. COMMISSIONER COYLE: Aye. CHAIRMAN HENN1NG: Opposed? Aye. Motion carries 4-1. Let's go right into the boat dock issue, you want, for CCSL? MR. SCHMITT: Yes, we can. MR. WHITE: Mr. Chairman? MR. SCHMITT: We'll go into the -- CHAIRMAN HENNING: Mr. White? MR. WHITE: In the interest of procedure and to allow the room to clear, I would suggest that we adjourn until 5:05, and then we won't have any of those potential procedural problems with from jumping from a second to a first public hearing. If I may respectfully request that. (The hearing adjourned at 4:55 p.m. until 5:05 p.m.) CHAIRMAN HENNING: Take your seats, please. Next item, Mr. Schmitt. Everybody take your seats, please. MR. SCHMITT: Next item, Mr. Chairman, we're going to Page 72 January 7, 2004 proceed with the rest of the amendments as scheduled, but prior to that, I want to make sure we have guidance from the Board of County Commissioners reference the proposal to extend the moratorium since we just passed 2.2.38, and Mr. White, if you want to clarify from a legal perspective. MR. WHITE: Mr. Chairman, Commissioners, my suggestion would be that at this time we not consider any amendments to 2.2.36, that we just let the moratorium expire on the 31 st. Probably the soonest we could get -- even if we drafted a separate ordinance just for 2.2.38, probably it would be a minimum of 14 days from today by the time it would become effective, that means the 21st. So all there would be is a differential of 10 days between when that provision would be effective and when the moratorium would expire. So you really don't need a motion. We just would withdraw it without objection from the Board. CHAIRMAN HENNING: Any objections? Commissioner Coyle. COMMISSIONER COYLE: Just a question. That means there will be no lapse between the effective date of this overlay approval and the termination of the -- MR. WHITE: They'll be about a 10 day lapse when the overlay would become effective, and then the moratorium would expire. COMMISSIONER COYLE: So the moratorium will expire 10 days after the overlay becomes effective. MR. WHITE: Roughly. COMMISSIONER COYLE: Okay. Not the other way around? MR. WHITE: If we were to pass what's proposed, the best we could do is get that approved on the 29th, and that at best would give us a two-day difference, which, because of the way the days fall, there'd be no practical advantage. So our suggestions is just to have the staff withdraw provisions regarding 2.2.36. Page 73 January 7, 2004 CHAIRMAN HENNING: I don't see any objections. Next item. MR. SCHMITT: Thank you, Mr. Chairman. I draw your attention to the handout that you have. It's your LDC worksheet that we normally hand out. I'm going to ask that Russell Webb walk you through this, because what we -- normally we go through these either by the number of constituents who signed up to speak, or we go through them sequentially, but many of the amendments are subject related, and we want to keep the group subjects together in regard to the presentation. COMMISSIONER FIALA: COMMISSIONER HALAS: think. When you say handout we have -- We didn't get a handout, I don't COMMISSIONER COLETTA: Is that the one down there, Commissioner Henning, it must be yours. CHAIRMAN HENNING: No. Okay. Put it on the screen or something. MR. SCHMITT: You have the normal worksheet we give you. CHAIRMAN HENNING: Right. The worksheet and the summary sheet. MR. SCHMITT: And, Russell, if you would put the schedule -- here let me give you a copy. MR. WHITE: And if I may interject, Mr. Chairman, I just want to put on the record for those folks in the viewing audience that this a continued first public hearing for all of the LDC items, other than 2.2.38, and that these were continued from the December 10th, '03, BCC meeting at 5:05 p.m., and at some point, as I mentioned earlier today, we need to have some determination of the time on the 29th that you would like to have us convene for the purposes of a further continuation of those items we may not finish tonight for their first public hearing, and for those matters that we do conclude hearing today, that we'll then have a second public hearing on the 29th. Just keep in mind that one of the things that was scheduled for Page 74 January 7, 2004 its first public hearing on the 29th are the Eastern Lands provision, and we expect that they will take up a significant portion of the time. So I would suggest that the earliest time possible on the 29th that would be convenient to your mutual schedules would be what we might want to do. And thank you for allowing me to interject. CHAIRMAN HENNING: Okay. MR. SCHMITT: If it might, Russell, if you please guide the Commissioners through this. The CCL variance will be the first one. You should have your packet -- large packet with you in regards to the LDC amendment. CHAIRMAN HENNING: Commissioner Fiala. COMMISSIONER FIALA: Yeah, I just wanted to know if our Chairman had a time that he would like to set for that January 29th, maybe we can get the thing -- CHAIRMAN HENNING: I'm looking at my calendar right here. We're meeting at 5:05. Now, we have a number of things on the agenda at 5:05, so my calendar is open at this time. COMMISSIONER COLETTA: Mine is too. COMMISSIONER FIALA: I'll make mine open. CHAIRMAN HENNING: Okay. So why don't -- at the end of the hearing see how far we get through, and how many contentious items, and then from there we'll set the time. MR. WHITE: Just so you're all clear, and I haven't confused you, you can convene at any time on the 29th. It does not have to be delayed until 5:05 p.m. CHAIRMAN HENNING: I'm sorry, Mr. Schmitt. MR. SCHMITT: Yes, the CCSL variance is the issue, and Russell -- let me explain where we've been with this so you understand. The CCSL variance is a request from over a year ago, where we were directed by the Board to come with an amendment that would preclude the request for variances. It's been before the EAC. It's been before the Planning Commission, Mr. Lorenz and Page 75 January 7, 2004 Ms. Burgeson will brief-- we've got a separate one that we've just completed. It's been before the EAC. Based on guidance from the Planning Commission, they did not support it as written, but based on the guidance from the Board of County Commissioners, you asked us to bring this forward to you. We've since tweaked that, so if I can turn it over to Bill and Barbara. Barbara, if you could run -- run through this. You have a separate handout on that. CHAIRMAN HENNING: Do you have extras? MR. SCHMITT: I need to point out that this does have to go back to the Planning Commission, unless we get guidance today otherwise. COMMISSIONER FIALA: That's it. He's got it. COMMISSIONER COYLE: Okay. He found it. MR. WHITE: In fact, Mr. Chairman, it only has to go back to the Planning Commission, I think if you direct it, and, in fact, I'd prefer at some point in the decision on the CCSL, that if that's this Board's desire, then, in fact, there be direction to take it back to the CCPC. CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Yes, I know that most of us don't even feel comfortable unless the Planning Commission has seen it and gives us their recommendation. CHAIRMAN HENNING: They have seen this. COMMISSIONER FIALA: But it's been changed since they saw it, right? MS. STUDENT: For the record, Marjorie Student, Assistant County Attorney. This is a substantial rewrite from what the Planning Commission has seen. And they need to make a finding of consistency with the Comp. Plan and so on. And it would be my opinion to strongly direct you that it should get back to the Planning Commission before you take final action on it. COMMISSIONER COYLE: I think it ought to go back to them Page 76 January 7, 2004 before we take initial action on it. COMMISSIONER HALAS: I think that's what we should do. CHAIRMAN HENNING: Okay. It's not going to pass, just because the two votes. COMMISSIONER FIALA: Three. CHAIRMAN HENNING: Three. So take it to the, take it to the Planning Commission-- MS. BURGESON: Just for the record, because of the advertising issues, I understand, as discussions that we had that the Planning Commission could hear this on the February 5th date, and the EAC, which heard it this morning, because there were some very substantial changes, and they were not able to make a final decision on it. They've asked that it be bought back to them on the February 4th meeting. So it will go back to the EAC and the Planning Commission on February 4th and February 2nd if that's acceptable to the Board of County Commissioners. CHAIRMAN HENNING: Ms. Burgeson, the EAC had this new language this morning, right? MS. BURGESON: But they did not have a quorum to vote on it. CHAIRMAN HENNING: They basically had how many recuse themselves? MS. BURGESON: Four. CHAIRMAN HENNING: Four members. They had four members recuse themselves because of conflicts. MS. BURGESON: Yes. CHAIRMAN HENNING: And it's a seven-member board? MS. BURGESON: It's a nine-member board. CHAIRMAN HENNING: Nine-member board. MS. BURGESON: We expect the other two members to be there at the next meeting, but we'll confirm that before the next meeting, though. Page 77 January 7, 2004 CHAIRMAN HENNING: And what kind of recommendations do you need from the EAC, is it super majority? MS. BURGESON: It's a-- you need five to have a formal motion, move forward. MR. SCHMITT: Commissioner, if I could just-- with your guidance or at least with your direction, understand that based on your previous guidance we were asked to create this amendment, but now we have to bring this back. If you don't want to hear this tonight we will probably not be able to even include this in the LDC cycle, based on the schedules that we're now compelled to follow. And just so you understand that from staff's perspective that the last hearing that this will be able to be presented to you in order to stay on schedule is February 11 th, and I don't see how we'll be able to get this to you twice and still get those other requirements. So this may have to slip a considerable while into one of the subsequent LDC cycles. CHAIRMAN HENNING: Since this was advertised for tonight, I think it's appropriate to call up the public speakers if they wish to speak. MR. SCHMITT: We can do that. I have several public speakers. CHAIRMAN HENNING: Or they can waive, because it's going to come back. MR. SCHMITT: Stephen Sposato. Stephen Sposato followed by David Tackney. MR. SPOSATO: Before I -- before speaking, is the direction -- We're not going to consider this language tonight. MR. SPOSATO: Will it be considered as part of the cycle three or will it go to a future -- CHAIRMAN HENNING: It will go to a future cycle. MR. SPOSATO: I think we, you know, waive. I don't know if -- I think I will waive. Thank you. Page 78 January 7, 2004 CHAIRMAN HENNING: Okay. Thank you. MR. WHITE: Mr. Chairman, I'm unaware that there's been any action to direct that. I'm just -- it maybe indeed be what the board's desire is, but all I've heard you suggest, but not make a motion on today is that -- COMMISSIONER HALAS: I'll second it. MR. WHITE: And the nature of the motion, just for the record, is? CHAIRMAN HENNING: Nature of the motion is put on a previous -- MR. SCHMITT: Remand it back to the Planning Commission. COMMISSIONER COYLE: to the Planning Commission. COMMISSIONER FIALA: COMMISSIONER HALAS: written. COMMISSIONER COYLE: on the third cycle. Yeah. Motion is to remand it back Second. Under the new language after it's Yeah. And then it will come up CHAIRMAN HENNING: January 1st, '04. But, again, I think we afford the opportunity for the public to speak on this item. Next speaker. MR. SCHMITT: MR. TACKNEY: to hear it tonight. MR. SCHMITT: MR. MR. MR. MR. David Tackney followed by Ed Staros. We'll waive, as well, since they're not going Robert Naebele. NAEBELE: We'll waive also. SCHMITT: Kyle Kinney. KINNEY: We'll waive. WHITE: Bruce Anderson, Robert Albeit. MR. ANDERSON: I'm going to waive, except to make one statement, because I don't think it's been made to you. The Planning Commission voted not to do any amendments, not tinker with the Page 79 January 7, 2004 language, not, you know, just leave it as it is. It's not broke, don't fix it. MR. SCHMITT: That is, in fact, correct. If I may, we have since tweaked this based on your guidance that we have to bring this back, back to many, many, many discussions previously with this Board on the CCSL language, and we're compelled to bring it back to you based on your direction. That's why I was asking you do you just want to kill this or do you want to follow the lang -- follow the guidance of the Planning Commission. CHAIRMAN HENNING: Let me -- let me go with the motion maker. Commissioner Halas? COMMISSIONER HALAS: Okay. I have -- CHAIRMAN HENNING: You had the second. You had the first. COMMISSIONER COYLE: I'll withdraw my motion or make another motion to disapprove this. CHAIRMAN HENNING: The second motion is withdrawn because the first is gone. The motion by Commissioner Coyle is just to kill it. COMMISSIONER COYLE: Yeah. CHAIRMAN HENNING: Is there a second to that motion. COMMISSIONER COLETTA: I'll make it, if you want. COMMISSIONER HALAS: To kill it. COMMISSIONER COLETTA: To kill the -- CHAIRMAN HENNING: To kill the language and keep it like in the coastal setback. MR. SCHMITT: Like an application for a variance, yes. COMMISSIONER HALAS: Okay. CHAIRMAN HENNING: Is that a second? COMMISSIONER HALAS: And I'll second it. CHAIRMAN HENNING: Second by Commission Halas. Any discussion? Page 80 January 7, 2004 COMMISSIONER FIALA: Yes. Just one more. So what we're saying now is we're going back to the way it was. We're accepting the recommendation of the Planning Commission. Planning Commission has said don't do anything with the existing code. So we're agreeing with the Planning Commission? MR. WHITE: Mr. Chairman, I believe your form of the motion is to direct staff to withdraw the amendment, then we can conclude the matter this evening. I don't want to put the Board in a position where we might have to arguably have a second hearing on this, but I think the form of the motion should be to direct staff to withdraw unless there is someone in the audience that's going to object to that. CHAIRMAN HENNING: Was that your motion and was that your second? COMMISSIONER HALAS: That's my Second. CHAIRMAN HENNING: Commissioner Coletta? COMMISSIONER COLETTA: Yeah, I was just going to say that we may want to give the speakers a chance to reconsider. CHAIRMAN HENNING: Next speaker. MR. SCHMITT: Ron Albeit. MR. ALBEIT: I'm going to waive based on your motion. MR. SCHMITT: Mick Moore. MR. MOORE: We'll waive. MR. SCHMITT: Mike Moore, Dr. Richard Bing. MR. MOORE: Waive. CHAIRMAN HENNING: Going, going, gone. All in favor of the motion signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN HENNING: Any opposed. Page 81 January 7, 2004 (No response.) CHAIRMAN HENNING: Motion carries unanimously. Next item, please. MR. WEBB: Good evening, Mr. Chairman, Commissioners, the next item for consideration is the boathouse requirements, that's section 2.6.21.4, page 109 in your LDC packet. CHAIRMAN HENNING: Will you state your name? MR. WEBB: Oh, I'm sorry. Russell Webb, Community Development and Environmental Services, for the record. COMMISSIONER COYLE: What was that again? MR. WEBB: The hand written page 109, agenda item page 144. MR. GOCHENAUR: Good evening. For the record, Ross Gochenaur, Zoning and Land Development Services. Boathouses in Collier County currently are allowed as accessory structures on improved property only by petitioning the Collier County Planning Commission. The petition is evaluated according to six objective criteria designed to address all aspects of the project including the boathouse can't protrude more than 20 feet into the waterway, and has to be set back 15 feet on either side. It has to be open on all four sides. It can't be any more than 15 feet high measured to the peak of the roof, not the midpoint. There can only be one boathouse on the property, and the roof of the boathouse has to match the roof of the principal structure or has to be a type. The Planning Commission is proposing a seventh criterion specifically addressing the impact of view on neighboring property owners. Staff is not supporting this proposed amendment. We believe that this adds an element of subjectivity in an otherwise objective process. We also have some concern after speaking to the County Attorney that adding a criterion this subjective could probably open the county to an appeal in the event that it will argue that the Planning Commission's decision was not based on competent and Page 82 January 7, 2004 substantial evidence. We also feel that the petitioner has a right to know what exactly he needs to do in order to get something that the county says he can have under certain circumstances. If you want a garage, we can tell you exactly how to build it and where to build it on the property. The criteria that we have for boathouses were intended to basically do the same thing. If we interject the element of view, it's entirely subjective. The petitioner really doesn't know what he needs to do in order to meet this criterion. As a result we're proposing alternative language that we'd like you to consider. The Planning Commissions proposal reads as follows: And I quote, the proposed structure shall not have a major impact on the view of either adjacent property owner. We've had some concern about the word major, what exactly is major. It's in the eye of the viewer, but if you take the word out and. leave it as impact on the view of the property owners, then every petition would fail. Anything you can see from your property has an impact on your view. So you can see it's a little bit difficult access -- to assess. What we tried to do was come up with some reasonable alternative language. Our alternative proposal, and I quote, is, the boathouse or covered structure must be so located as to minimize the impact on the view of the adjacent neighbors to the greatest extent practical. We feel this at least gives the petitioner an opportunity to look at what he needs to do and figure out whether he's going to place it on his property in such a way as to minimize the view and be prepared to argue that in front of the Planning Commission. So if you decide that you would like to amend the code to add view as a criterion, we would recommend that you take our proposal. I'll be glad to answer any questions. COMMISSIONER HALAS: Would we have the option to do basically what I believe the City of Naples has, and that's eliminate boathouses? Page 83 January 7, 2004 MR. GOCHENAUR: You certainly could. COMMISSIONER HALAS: And, I mean, anybody's that's got a boathouse now is grandfathered in until it needs to be torn down or whatever, and then you're not -- they still have the ability to have a dock and everything else, but don't have a boathouse. MR. GOCHENAUR: Right now boathouses -- if that were done boathouses would become legal non-conforming structures. We've also just amended the code to allow 100 percent reconstruction of docks and boathouses, so even if you did eliminate boathouses now, those existing today would continue to exist as long as the property owner wanted to maintain them. COMMISSIONER HALAS: And where will we stand as far as litigation? MR. GOCHENAUR: I'm not an attorney, sir. COMMISSIONER HALAS: Where would we stand as far as litigation? MR. WHITE: I'm assuming for the sake of argument that we would be litigating under the existing regulation, or the one that's proposed by staff. I'm -- the one that you're contemplating, I guess is COMMISSIONER HALAS: The one that I'm contemplating. MR. WHITE: Where we would just -- I don't see that as being any different than the circumstance where any other type of a use or structure is essentially prohibited, and so long as there's a rationale for doing so, which I think we can put into the record at the time we would make that amendment, which we cannot do today, unfortunately, then I think it will be sustained. COMMISSIONER HALAS: That's the way we ought to go. CHAIRMAN HENNING: With staffs recommendation. COMMISSIONER HALAS: With staffs recommendation by eliminating boathouses. MR. WHITE: I don't recall that being staffs recommendation, Page 84 January 7, 2004 but certainly it could be the Board's direction. CHAIRMAN HENNING: Well, we just heard that there is a legal issue from Mr. White about the language for allowing boathouses and the amended language, so if we just eliminate the use, would there be further concerns about legal action? MR. WHITE: If I understand what the board's intent is, it would be to essentially reject any amendments that are being proposed today and to direct the staff to draft amendments that would eliminate boathouses as a use and structure from the LDC. COMMISSIONER HALAS: Because I think the other way, if we go the other way, I think we're just going to get into a can of worms here, and I think it's even going to get worse. MR. WHITE: Well, I'm sure there are folks who have docks and contemplated at some point perhaps boathouses, and -- COMMISSIONER HALAS: I've contemplated a boathouse but it would fall -- I would have -- I would be one of those people. COMMISSIONER COLETTA: Let's do it before they build one. MR. WHITE: I think that's the message that's probably going out over the airwaves, and the criteria apparently that would be reviewed in the short term would be to keep those that exist unless the Board gave an indication to the staff today that with respect to any applications that may come in, that we're effectively putting the community on notice that they're not going to be favorably considered. MR. WEBB: Mr. Chairman, ifI can interject, Patrick, not to throw a wrench into things, but aren't there other provisions of the LDC that pertain to boathouses and would we have to legally advertise those for elimination. MR. WHITE: Yes. I'm contemplating that we would have to go through all of the necessary amendments with properly advertising that probably wouldn't be back in front of this Board until Page 85 January 7, 2004 probably the end of this year, near the end of this year. MR. WEBB: Just wanted to clarify. CHAIRMAN HENNING: Thank you. Commissioner Fiala. COMMISSIONER FIALA: Yes. I have two questions, actually. Number one, by eliminating boathouses, what happens to the commercial places like marinas that want to have boathouses, is that a separate element altogether? MR. WHITE: I think that's a distinguishable use, and certainly we would -- that would have to apply to residential structures. COMMISSIONER FIALA: Okay. And the second question. You can tell I don't now own a boat, and I haven't been on a boat in 20 years. Why would you want to eliminate boathouses, I mean, I see that it's a strong feeling amongst people, why? COMMISSIONER HALAS: Well, the main reason is that as you -- you know, a larger proliferation of boathouses, it actually ends up detracting from the view of a canal or the bay or whatever else that you have and it -- and I think Naples went about it the right way years ago, they just eliminated all boathouses other than if it was in a marina function, or an area that there was a marina, then you had -- have a covered area as such. CHAIRMAN HENNING: And marinas are going away anyway SO. COMMISSIONER COLETTA: Yeah. They're all turning into condos. CHAIRMAN HENNING: Commissioners Coletta and myself-- well, wait a minute, Chokoloskee, that wouldn't be eliminated, but I don't have any concern of my constituents, but I would hope that the other Commissioners would go to their constituents that are on water and let them know what the Commissioners are considering. COMMISSIONER FIALA: Yep. CHAIRMAN HENNING: And I think what we ought to, do before we direct staff to eliminate them, is to do that, and then come Page 86 January 7, 2004 back and direct staff, because I would hate to waste their time only to get a lot of people in here, and then we change our mind again. Does that sound like a fair game plan? COMMISSIONER COYLE: I've got a -- I've got a problem with that. You know for all practical purposes there's no way any one of these Commissioners is going to go to every person who owns waterfront property and find out what they want to do. I think the best way to deal with it is to announce they're going to have a public hearing on the issue and advertise the public hearing and invite people to come .in and tell us what they think. And we can do that in a work-type setting or any other setting, but, certainly, I'm in favor of getting public input before we direct staff to go do something, otherwise we will be changing our mind as we go forward. So let's just resolve to have a public hearing on the issue and see what people think about it. COMMISSIONER HALAS: I'll go along with that. COMMISSIONER HENNING: That's a great idea, but we have, I'm sure we have Isle of Capri Civic Association, we have -- COMMISSIONER FIALA: Goodland Civic Association. CHAIRMAN HENNING: Goodland Civic, and we have the Bayshore overlay, and I think they might be interested in it, and Commissioner Halas has some associations up there, and I'm going to sit back and wait for your constituents call in to give us some direction. COMMISSIONER FIALA: Yeah, I think that's good. I certainly wouldn't want to move forward until I talk to them. COMMISSIONER HALAS: So I think what Commissioner Coyle came up with, for a public hearing, I think that's a good way of starting the process. CHAIRMAN HENNING: At a regular Board meeting. COMMISSIONER COYLE: Or anyway. MR. SCHMITT: Would it be part of an LDC amendment cycle, Page 87 January 7, 2004 which is the way it would have to be dealt with? What I would need from you now is we have a proposal in front of you that was created and forwarded by the Planning Commission, as directed by the Planning Commission for staff to prepare, would you want to hold on this in regard -- and wait for that type of-- or what -- CHAIRMAN HENNING: What I'm hearing is my colleagues just want to eliminate boathouses in general. And so what we need to do is to vote this down. MR. WHITE: Mr. Chairman, if I might interject, I thing the intent by the CCPC and the staff is -- is to feel somewhat more judicious in when boathouses are approved. And my reading of this provision, the version that the CCPC brought forward, which does have the defects that staff mentioned, or the staff version is a greater limitation on the approval of boathouses. And you may want to, if your goal is to limit them, in particular in places were they may be a problem for view by neighbors, you might want to consider actually approving this provision in the interim with an understanding that sometime prior to the start of the LDC cycle mid-year that you have a workshop to further consider whether you want to prohibit them. I think this provision actually is a greater limitation and restriction on boathouses than if you were just to leave the code as it is presently. CHAIRMAN HENNING: And what our staff said, it's 25 not broke, correct, Mr. Gochenaur, the way it's written now? MR. GOCHENAUR: We don't feel that the language in the code, with a few minor exceptions that don't relate to this criterion directly, has been a problem in the past. CHAIRMAN HENNING: Okay. MR. GOCHENAUR: If you were to accept our recommendation here, it's my opinion that this would actually improve the process, that this would add a way for us to further evaluate view but still maintain objectivity until such time as you decide that you either want to eliminate them completely or you Page 88 January 7, 2004 don't. CHAIRMAN HENNING: Got it. Thank you. We do have public speakers? MR. WEBB: Yes, Mr. Chairman, we have two B. J. Savard-Boyer followed by Susan Stiefel. COMMISSIONER HALAS: I'll hold my question until after we get done with our speakers. MS. SAVARD-BOYER: B.J. Savard-Boyer, Palm Court, Vanderbilt Beach area. I'm a little confused at this very moment. I didn't get all of the wording that Ross Gochenaur said. Were you changing number seven? Was your wording changing the seventh criteria. MR. SCHMITT: Let's put it on the visualizer. CHAIRMAN HENNING: In the meantime, while we're getting to where Ms. Boyer can understand, if the County Manager can consider putting this on a future agenda for discussion in the Spring or-- MS. SAVARD-BOYER: I understand that. The Planning Commissioner, the CCPC went around and around about this, and the way it was before is if you had a dock, you had the right to get a boathouse. That's the way it was. Now, what the Planning Commission wants is a proposed structure, they wanted to come back a second time with the boathouse to have -- not to have major impact on the view of their adjacent neighbor. Now, I don't know -- well, that's pretty much saying the same thing I think that the Planning Commission came up -- minimize the view. I only have one suggestion, you can go forth with the boathouse later on in the year, but one thought I had is, is it possible to have a photo showing the adjacent neighbor's line of view. Would this give the Board more criteria to justify whether the view was impacted or whether it was minimized, and I don't know who would be responsible to take the photo -- Page 89 January 7, 2004 CHAIRMAN HENNING: I will. MS. SAVARD-BOYER: I just think if you stood in the backyard of the neighboring property and took a view, a lot of these properties -- the property owner's gone six months of the year, they aren't even aware of what's going on until they get a letter up north, which is always maybe seven or 10 days before it comes to the Board, I don't know. I don't know if that's a possibility or not. I'm just trying to protect the people that live next door where a boathouse is going to be constructed, giving them enough time, if you can't, you know, get the neighbor, somebody should be able to take a picture and have something for the Board to look at to see -- how can you judge whether it's an impact of the view, if nobody has gone out and stood on the property. CHAIRMAN HENNING: Commissioner Coyle has a question for you. COMMISSIONER COYLE: It's not a question. It's just a comment. I don't know that it's possible to build a boathouse without impacting the view of somebody, some way. I can recall a situation I encountered in the City of Naples where there was a complaint by a person who had -- had bought waterfront property with a dock, but complained that they could see the neighbor's boat. I'm not sure that we can ever reach the point where we can determine what is significant to a neighbor. And I would suspect every boathouse that is built has some impact upon reducing the water view, and what is major and what is minor is almost impossible to determine and we just get into an argument with people. MS. SAVARD-BOYER: I know. COMMISSIONER COYLE: I'm afraid that Commissioner Halas' idea is 'probably the best one. And that is just not have them. They're not essential. They're nice to have, but they're not essential. But I agree with you, I think the wording that is suggested here is not substantially different, and it's still going to be a very subjective kind Page 90 January 7, 2004 of determination, and I think it's going to be a nightmare trying to determine whether it's impacted significantly or not. MS. SAVARD-BOYER: I do too. To compare our canals and lagoons with Isle of Capri or any other, we're all individual waterways, and Isle of Capri, you know, they have a more wide open space. We don't. We have -- some of our canals are of 60 feet wide, some of them are 100 feet wide, some of them are a little wider. COMMISSIONER FIALA: So maybe that's why -- that's why we need to talk with them -- by the way I was just kidding about not being on a boat in 20 years. I have people who graciously take me out here and there for a little boat ride, but anyway. COMMISSIONER COYLE: As long as it's not paying. Have you been paying for these? COMMISSIONER COLETTA: She pays for the gas. COMMISSIONER FIALA: No. I've never been on that kind, but I've been on a boat ride where I've been checking out the lagoon, for instance in Vanderbilt. It's nice to see. Anyway, and say for instance this is an important thing to the Isle of Capri residents to have, boathouses and I don't know that that's the case or not, or to Goodlanders because maybe they clean their fish there when they -- when they come back from, you know, maybe they're professional fisherman, and this is what they use for a living, and if that's the case, then we need to write in something into the LDC so that-- MS. SAVARD-BOYER: Intuitive to certain neighborhoods. COMMISSIONER FIALA -- because I want to protect them as much as Commissioner Halas wants to protect you, and see I don't -- I still don't understand why you eliminate them, if they're built, you know, I mean, if you're living in a boating community you expect to see things related to boating, but anyway. COMMISSIONER COYLE: Some people don't. COMMISSIONER FIALA: Oh, really, but I have a problem there. So I'll just check with my people. Page 91 January 7, 2004 MS. SAVARD-BOYER: I guess I don't understand what the difference is, if you have a car, and you don't have a garage and it's parked outside you take care of it. You wax it, you protect it. What's the difference if you have a boat. Why can't you wax it and protect it. You could probably have someone come in and wax or protect your boat once a month cheaper than you could put up a house. That's all I have. COMMISSIONER FIALA: Is it just that -- is it just that it's offensive to people to look -- I really don't know, I mean, I'm saying this out of all innocence. I really don't know if it's offensive to somebody. MS. SAVARD-BOYER: I will tell you what one of the Commissioners on the Planning Commission said, and I won't reveal his name, but he said that he -- he doesn't care for boathouses. It makes it look like shanty town. Now, if you would look down our canals that are 100 feet wide and we have 20 houses, 22 houses on each side, and you've got 22 boathouses on each side, you're not going to look at a pretty sight. They're all going to be different, there could be a pink roof, there could be a turquoise roof like this. We have several of them. There could be a white roof. It's not pretty. It's not a pretty sight. It really isn't, I mean -- COMMISSIONER FIALA: Well, that's what I wanted was an answer, you know -- and I could be shot by a lot of homeowners up there when we leave, so if you see -- MR. GOCHENAUR: Well, the Board's position, I understand about being shot by a lot of homeowners when we leave, so if you see -- MR. WHITE: For the board's clarification, I understand the boathouse issues are approved at the Planning Commission level, they do not come to the Board. COMMISSIONER FIALA: Unless it's approved. MR. SCHMITT: The specific criteria that define that either a Page 92 January 7, 2004 chickee hut type roof structure or the structure must match the principal structure, the roof must match the same roof style in color with the principle structure, and that's the way the ordinance is currently written. COMMISSIONER FIALA: Thank you. Thanks for explaining it, Joe. MR. WEBB: Next public speaker is Susan Stiefel. MS. STIEFEL: Susan Stiefel, I live in the Vanderbilt Beach area. Just a couple of points regarding the subjectivity of the view, because that's really what a lot of this is about, appearance. We've got a boathouse a couple doors from us that's been in semi-disrepair just good enough to get by for a very long time. And it looks terrible, and it's an older one, and it would be grandfathered in, even though it should probably be torn down, but that really isn't the issue. But it is part of my view. In the neighborhood you have a lot of the houses that were built back in the -- when the neighborhood was developed in the '60's and '70's that are on the ground, I mean, you can't build a house like that now because it's -- it doesn't have any FEMA, it doesn't have any -- it's not like a stilt house or anything. It's just a bungalow on the ground. Their view, if they look out from their yard and they have a neighbor that has a boat, if it's up on a rack they're going to see the boat that's on the rack. But then they will also see this roof which will block their sunrises or their sunsets and in the area. If they're on a second-story house they may be able to see right over the top of it, and it may not be an issue at all. So it's very subjective. It depends on how the neighbor's house is built. It depends on when it was built. It depends on the height of the house, whether they've raised the lot up the required 14 feet or whatever it is and then built or they're in a second story, third story house, which some of them are now, or whether they're on the -- still on the ground like the little bungalows or little ranch styles that were built back in the '60's, '70's and early '80's, and those houses, those Page 93 January 7, 2004 boathouse -- the boathouses ruin their views. The one thing -- the one thing that I have a real problem with, and that's I don't care whether you take this -- would take the staff proposal or the CCPC proposal on the wording here, they're both are going to end up being subjective decisions by the Planning Commission. But the one thing that happened a lot and I think the law says, you know, when things are happening in your neighborhood, the neighbors need to be notified, signs need to be put up, things need to be advertised. That doesn't work in Naples very well. You have people that leave and go on extended vacations from here. You have people that leave and go north for the winter or for the summer. You have people that get called away for maybe their daughter is sick in California and they all of a sudden leave at the drop of hat for three months. They come back and they have a boathouse next door that they never knew about, they didn't get their mail. I think that if the proposed new owner of a boathouse wants the Planning Commission to make a subjective decision about view, and I think view has to be considered, that they ought to -- somebody needs to prove that the neighbors were notified. Just the fact that they sent a letter that got -- I just got mail the other day from the 12th of December. I don't know whose box it was in, but it was all postmarked the 12th of December. I got it yesterday. Luckily there wasn't anything important in there. So I don't know where it was for the last three weeks, in somebody else's vacation box at the post office, I guess. But that happens, so just saying you sent the neighbors a letter doesn't work either. You got to prove that they got it. So it needs to be some certified mail. There needs to be some sort of proof, and I very much like the idea of-- that BJ had with a photo. It's very easy to do with the digital cameras now to go snap a couple of angle shots from the yard, first story, second story, however -- however it looks. But I think we need to protect the neighbors and the neighbors aren't Page 94 January 7, 2004 always there, because we are unique. Thank you. CHAIRMAN HENNING: Thank you. Entertain a motion. MR. COYLE: I'd like to make a motion that we -- well, first let me clarify -- this first paragraph 2.6.21.4, you're recommending that it be changed as indicated here; is that correct? MR. WEBB: Actually, I think that's the Planning Commission's recommendation. Ross had some alternative language that is on the telestrator (sic) right now. COMMISSIONER COYLE: Okay. But I'm not talking about the one at the bottom, point 7. I understand Ross' verbiage on point Seven. Are you in agreement with the first paragraph of that code, 2.6.21.47 MR. WEBB: Oh, yeah, I believe so, but I'll defer to Ross. MR. GOCHENAUR: If I may answer that, sir, yes, we are. That language was definitely misleading, one way or another, whichever version you decide on I believe that language should come out, and that hasn't been controversial. COMMISSIONER COYLE: Okay. Then my motion will be as follows, that we approve this particular change as recommended by the staff with the exception that we completely eliminate 2.6.21.4.7 as a criteria. CHAIRMAN HENNING: And that was the Planning Commission's recommendation? COMMISSIONER COYLE: Yeah. COMMISSIONER HALAS: The one that says proposed structure shall not have a major impact on the view of either adjacent neighbor. COMMISSIONER COYLE: Yeah, it's so subjective you can't even enforce it. And the new language is, Mr. Gochenaur? MR. GOCHENAUR: We would suggest the language up there labeled staff alternative on the visualizer, specifically the boathouse -- the boathouse or cover must be so located as to minimize the Page 95 January 7, 2004 impact on the view of the adjacent neighbors to the greatest extent practical. COMMISSIONER COYLE: And I would recommend that we include that language, recognizing that it's not a substantial improvement over the other one, but it does provide some protection. COMMISSIONER HALAS: Yeah, the question I was going to ask you, what is -- what is considered minimizing, and that's -- that's still ambiguous as all get out. MR. GOCHENAUR: Yes, sir. It's very ambiguous. What we were trying to do was respond to the Planning Commission's direction to somehow add view as a criterion without making it entirely subjective. The idea here would be if you have a 100-foot lot and neighbors on either side, ideally you would put your boathouse in the middle so as to minimize the impact on either neighbor. If for some reason you had vegetation that screened one neighbor, you might want to move it closer to his property line and further away than the other's. It does give them that option to minimize the impact to the greatest extent practical. It's not great, it's not even good, but it's an improvement, we feel, over the Planning Commission's language. COMMISSIONER COYLE: And the reason I'm recommending we accept that language is that it at least provides some kind of protection with respect to consideration of view. And if we are serious about moving forward with an evaluation about -- concerning the elimination of boathouses, we need to have some protection with respect to view until such time as we get to the point of elimination. CHAIRMAN HENN1NG: Okay. COMMISSIONER HALAS: I'll buy into that then. CHAIRMAN HENNING: All in favor of the motion signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. Page 96 January 7, 2004 CHAIRMAN HENNING: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN HENNING: Any opposed? (No response.) MR. WHITE: Just for clarification, I understand that the form of the motion is to leave all of the amended text and delete the provisions pertaining to 2.6.2.1.4.7. COMMISSIONER COYLE: And insert-- MR. WHITE: Insert staff's recommendation. give until I think one person here about signs, and I'm not sure if there's any other public speakers on any Land Development Code changes that we have tonight. MR. WHITE: Point of order, Mr. Chairman, if we can just conclude the vote on the motion, please. CHAIRMAN HENNING: The motion carried five zero. COMMISSIONER COYLE: You just didn't hear the vote. MR. WHITE: Right. I'm just a minute behind. MR. WEBB: Mr. Chairman, that is correct that the only registered public speaker -- the only remaining registered public speaker is on the -- CHAIRMAN HENNING: Can we take that? MR. WEBB: That's certainly fine. COMMISSIONER FIALA: Do you have a list of things that you had up there before showing us the different page numbers? CHAIRMAN HENNING: They're in front of the book. MR. WEBB: Yeah, if you don't have that, Commissioner, I have extra copies in the back. Very good. COMMISSIONER HALAS: And then should we at this time staff direction that at a later date bring forth or we should wait we have an open meeting, public meeting. Okay. CHAIRMAN HENNING: All right. We do have, Ms. Murray, Page 97 January 7, 2004 COMMISSIONER FIALA: No, I mean you had it up on the -- MR. WEBB: Oh, on the -- yeah, up on the visualizer, yeah. COMMISSIONER HALAS: The page numbers haven't changed since December 5th, have they? Page 101, back to school. MR. WEBB: Yes, the particular amendment that the public speaker is registered for is the one, I believe, on page 102 handwritten page 102, which is agenda item page 137, section 2.5.5.2.5.1.1. CHAIRMAN HENNING: Actually, I think it starts on page 102, the handwritten 102. MR. WEBB: Correct. CHAIRMAN HENNING: All right. Who is going to present? MS. MURRAY: Russ Webb. MR. WEBB: I think I'm going to need to start out, I believe that you were e-mailed the revised revision to this particular amendment, but if not, I think I have copies of that as well. There were revisions made to it based on the Planning Commission recommendation to establish administrative process for lots with less than 100 feet of road frontage, and Mr. Chairman, you have to direct me whether or not you got that new language. CHAIRMAN HENNING: Establish administrative variance procedure for lots with less than 150 road frontage; is that correct? MR. WEBB: Yeah, and I think we have a later version, and I apologize that you didn't get that. Apparently, you didn't. That was an oversight. CHAIRMAN HENNING: Okay. MR. WEBB: As you can see from the revised language we have criteria set up for two different -- two different road frontages. We have those up to 100 -- from 100 to 120.9 feet, and from 121 to 149.9 feet, and those different criteria appear on page three of the amendment. CHAIRMAN HENNING: So, to dumb it down, all you're doing Page 98 January 7, 2004 is giving different size of signs that they could do; that's what you're saying, correct? MR. WEBB: That's correct. CHAIRMAN HENNING: And one is 32 -- 3,200 square feet, 121 to 149.9. MR. WEBB: Right. Which allows for a 32 -- as you said, a 32 square foot sign, and the smaller lots, 100 to 129.9 feet allows for a 16 square foot sign. CHAIRMAN HENNING: Okay. And the change is to establish an administrative procedure for permitting ground signs on non-residential lots less than 150 road frontage, would that mean applying for a permit just like the big boys do that have bigger lots? MR. WEBB: Actually-- MR. WHITE: If you look at the text, Mr. Chairman, that provision is struck through about the administrative variance. CHAIRMAN HENNING: Okay. Establishing an administrative procedure. MS. MURRAY: That's an administrative procedure, not a variance. So it's a permitting procedure just like we currently have now, broken down by the various street frontages. COMMISSIONER HALAS: That is correct. As Commissioner Henning related to, this is for the small business owner that is on a smaller lot than 149 feet with frontage on it. MS. MURRAY: Right. The current requirement requires 150 feet minimum frontage to have ground signs, and would allow anybody less than a 150 feet, but 100 -- 100 feet or more up to 149.9. COMMISSIONER HALAS: Good. CHAIRMAN HENNING: Any other questions? Please call out the public speaker. MR. WEBB: The public speaker is Jason Dickerson. MR. DICKERSON: For the record, Jason Dickerson. And I live in -- on Palmetto Woods off Logan, and boy, you people work hard. Page 99 January 7, 2004 It's amazing. I have a small business with a lot that's less than 150 foot, and I have had sign issues for-- going on 15 years now. So I'm glad we're finally looking into something on this. It's affected my business. It's affected by livelihood, really. And with the ever expanding Collier County and the new residents that we have, it's become very difficult to have people find you when you don't have any kind of signage out front. So I want to thank you-all for considering it. And I guess that's all I've got to say, because I've read it over and I'm pretty much in agreement with it. COMMISSIONER FIALA: What is the name of your business, might as well promote it, right. MR. DICKERSON: Sure. It's Naples Auto Electric on Davis Boulevard. COMMISSIONER FIALA: Right there in the heart of East Naples. COMMISSIONER COLETTA: You've got a great Commissioner that's for businesses, you know that. COMMISSIONER COYLE: And I've been there for repair of my windows in my car because they didn't work. You did a good job. COMMISSIONER HALAS: I have one question, on these signs they're going to be required that the street address is on there, in other words, the street numbering? MR. WEBB: I believe that's one of the requirements, yeah. CHAIRMAN HENNING: Thank you, Commissioner, I was concerned about that too. MR. WHITE: The numerals have to be at least eight inches in height. CHAIRMAN HENNING: Fantastic. To get around Collier County and know where we're at. Do we need a motion on this or just carry this one forward? MR. WHITE: You could do it either way, Mr. Chairman, you Page 100 January 7, 2004 could kind of go through all of these collectively, or if you want to just give your assent as to the first public hearing, because all of these will have to have a second public hearing, but if you're in agreement with the language and want to vote them separately, go right ahead. CHAIRMAN HENNING: Now, is everybody in agreement with this piece. COMMISSIONER FIALA: Yes. CHAIRMAN HENNING: Thank you, Mr. Dickerson. COMMISSIONER FIALA: May I add, if you were talking about -- I was glad you brought up the addresses. I could never understand why a business won't put the address on their sign, I mean, how are they -- they advertise in the yellow pages, and then they don't have the address on the sign. So I'm glad that you -- that they have this included. I just had to say that. Thank you. CHAIRMAN HENNING: Thank you. COMMISSIONER HALAS: Thank you. CHAIRMAN HENNING: Do you want to get back on the agenda? MR. WEBB: Yes, let's do that. Building heights, there are four amendments pertaining to this it particular issue. And Robin Meyers is here from staff to address this. MS. MEYERS: Mr. Chairman, members of the commission, for the record my name is Robin Meyers with the Department of Zoning and Land Development. These changes resulted out of the joint study session you had with the Planning Commission in March of 2003. Staff came back to you with the -- actually a rundown of options that you asked to look at in November of 2003. At that time the Board of County Commissioners directed staff to simply clarify a number of issues in the code. Number one, clarify actual heights and create a definition for that in the code. A definition of rezone heights and then also clarify the appurtenances in the code. As a part of the Page 101 January 7, 2004 MR. WEBB: 106. effort, it was realized if we did not require that these be utilized somewhere in the code, no one would ever be required to provide that information to the public. And so that's why the section 3.3. was included, which is the site development process within the code. And you'll see at the very end there there's a criteria added that requires that -- as part of your site development process, you include this information on your-- your elevations. I'd be happy to answer any questions. CHAIRMAN HENNING: Yeah, what page are we on? There's a number of them. Yes, there's four pages. The first one is on page CHAIRMAN HENNING: And I've got 106. MR. WEBB: And that is the modification of appurtenances and clarification of appurtenances. There is some questions and issues regarding that. We've tried to clarify what appurtenances are, and we added three criteria. COMMISSIONER HALAS: I've got a question. In the -- on page 107, it says fiscal and operational impact. There may be a fiscal impact to the developers, and this study will be submitted upon completion. How can it be an impact to the developer? All they're going to do is put one more dimension line on a print, how can it -- MS. MURRAY: Honestly, Commissioner, that probably was kind of left over language prior to us meeting with and getting -- COMMISSIONER HALAS: Pardon. MS. MURRAY: I'm sorry, that was probably kind of leftover from our original drafts. I agree with you. I don't really think there is based on what we were bringing before you today, but at one point we had contemplated different changes that likely would have a fiscal impact, and then we received further direction from you as to what you wanted us to bring forth. COMMISSIONER HALAS: Because all you're doing is putting Page 102 January 7, 2004 a dimension on a-- MR. WEBB: Well, that would be my mistake, Commissioner, in trying to get these done quickly I left that in there and didn't change it. COMMISSIONER HALAS: It shows up in a couple of other places. MR. WEBB: It shows up on all four-- COMMISSIONER HALAS: I think that would -- MR. WEBB: Exactly. That needs to be taken out of there. CHAIRMAN HENNING: Okay. Commissioner Fiala, Commissioner Coyle. COMMISSIONER FIALA: Yes. I noticed on the summary sheet here that on -- for pages 106, 153 and 199 that they were not reviewed by DSAC or -- or EAC, and I was just wondering if they have been reviewed since then, or CCPC was going to do it, and I don't see any recommendation. I was just wondering -- I'd love to hear what they had to recommend on these. MR. WEBB: As far as I know they were not reviewed by those bodies, at least I did not present them to those two bodies. CHAIRMAN HENNING: There's a number of these in here. COMMISSIONER HALAS: Yeah. CHAIRMAN HENNING: And I am-- I am concerned that people that we ask to dedicate their time to do certain things are not doing it. And for my part, I just rather all these that the committees did not review is just put them on the next cycle. I don't know how any of the other Commissioners feel. COMMISSIONER FIALA: That's how I feel, things I won't recognize, they do and they recommend-- CHAIRMAN HENNING: I want their input. COMMISSIONER FIALA: Yeah, me too. I feel the same way. MR. SCHMITT: Commissioner, for the record again, Joe Schmitt, Administrator Community Development Environmental Page 103 January 7, 2004 Services, these are rather mundane changes. They've been dully reviewed by those various committees. These are workshop items that have been advertised in workshop, and this is based on your guidance to -- as we refer to it as the truth in lending in regard to building heights, and all we're trying to do is clarify the LDC. This is -- this is of little or no impact at all. Other than it's what it is doing is giving us the tools that you wanted us to have in regards to defining overall height and zoned height and that's all this does, unfortunately. COMMISSIONER HALAS: Is there any possibility that we could condense all of these into one amendment, which would clear -- make it more clear, and we could not have to -- MR. SCHMITT: It's in four direction sections of the LDC. Commissioner, you highlighted a problem that is pretty much consistent throughout our LDC and that was part of the Gail Easley study that we -- our next cycle is going to be devoted principally to the reorganization of the LDC. Patrick. MR. WHITE: Commissioners, you're always going to have a circumstance where provisions will exist spread out through the LDC, and the most we can do to help you is to do as we've done here, is to group together in the agenda that you were provided today the various page numbers and so you can collectively read them at each of those points. There's no way to consistently and in every instance write a regulation where all of the pertinent provisions are in one section of the LDC. You've got definitions here, and you've got operative provisions in the other sections and there's really unfortunately no way to combine the two. MR. SCHMITT: Commissioner, if I could point out the earlier versions of these amendments all went before the DSAC, in fact we received very explicit guidance from them, and that is what, is what created the rewrite. Then we had the workshop. We came to you in the workshop, and .you gave us then clear guidance. So that's what Page 104 January 7, 2004 the result of these LDC amendments are. The original version that went to the DSAC was -- well, it was much more complicated than what we -- we finally got guidance from you in regards to zoned height and building height, and that's all we've done here is now, basically, define that, codified that, and now are going to require that when a petitioner comes before the Board of County Commissioners and has a rezoning action and they want to describe, okay, we're going to have a 100-foot building, your next question will be, well, fine, that's zoned height, what is the overall height. Now they may be within one or two or three feet of that because all they're presenting is a -- an interpretation or a -- at least an estimation of what's going to be built, but that -- this is language that was developed after we've already staffed these two both the Planning Commission and the Board of County Commissioners. COMMISSIONER FIALA: But, Joe, the only reason I even brought this up is because it says -- MR. SCHMITT: Yes, you're correct. COMMISSIONER FIALA: You did not review, so, you know, I couldn't -- and then it said-- MR. SCHMITT: And I appreciate that-- COMMISSIONER FIALA: -- that CCPC was going to review it at December 4th, but then their results aren't on here either, so I was just -- I was just concerned with that. CHAIRMAN HENNING: Commissioner Coletta. COMMISSIONER COLETTA: Yes. If I may, I've got a suggestion. This is the first reading. I went through this. I didn't have a problem. I don't see a tremendous number of people here that are shaking their heads or crying in the background. I think a lot of thought has gone into this. I for one, tomorrow morning I'll be at a meeting with Mark Strain for breakfast. I plan to carry the whole book into him and lay it on him. Mark, what did we do wrong here? MR. SCHMITT: I'm not -- I'm trying to save the day here, but Page 105 January 7, 2004 really, David and I have been working this. Mr. Ellis and I have been working on this for over six months, because of the language that you originally directed us, I've been working with the Industry on this. We then since had the workshop. You gave us guidance. I think everybody is comfortable with what -- what's presented. It's again a time constraint of getting this back, but we certainly could bring this back to the Planning Commission -- COMMISSIONER COLETTA: I'm almost sure the Planning Commission approved this. MR. WHITE: Mr. Chairman, just a point of order, please. If you look on your summary sheets, you'll find on page 9, second one from the bottom, that, in fact, the CCPC did look at this and there may be some slight revisions that staff has most recently made to this text, but you can see that the specificity of the CCPC's comments were down to the -- of the various words that are at the end of the first paragraph, so -- CHAIRMAN HENNING: But I know the first time that we had this book, we didn't get all recommendations. So, obviously, it must of went back. MR. WHITE: Okay. But my point is that if you look at all of the provisions that are cited in your agenda, all those page references and you take them back to the corresponding section of the LDC and you look on the summary sheet, you have comments and recommendations of approval from the CCPC with some comments such of that, that I just made mention of for this for this, provision about for commercial purpose. So I just want to correct the reference. MR. WEBB: Mr. Chairman, I think I can clarify everything by -- and this is was an oversight again by -- by me. I think for future purposes I can simply state something to the effect of they did not review this particular version of the amendment, because that's really -- as Joe pointed out, I mean, that's what occurred. They had reviewed earlier versions of the amendment. So I think if we put the Page 106 January 7, 2004 qualifying language that addresses some of your concerns. COMMISSIONER COYLE: Since you've spent so much time working this language, Jim, on page 106, I just need you to clarify something for me. The last sentence on page 106, and it's repeated in every one of these. That this would also require that the definition of zoning height be clarified to limit architectural appurtenances to no more than 20 percent of the total floor area. MR. WHITE: Actually, it's been changed to one third the floor area. It's the part that's exempted from the height and it would be -- you'd have to go back to the top of the definition. What we're talking about, the infrastructure supporting, supporting the building, mechanical, penthouses, elevator shafts, stair shafts, mechanical, all of these things, within the zoned height, those, up to a third of your floor area for those is exempted from the measurement of the zoned height. COMMISSIONER HALAS: Of the zoned height? MR. WHITE: Yes, of the zoned height, but for the actual building heights, the highest point within any of those is where you measure from. And that's the difference between the zoned height and the actual height. COMMISSIONER COYLE: One of the appurtenances that you list is an antenna. MR. WHITE: Yes. COMMISSIONER COYLE: Now, how do you determine whether that antenna is 20 percent of your total floor area? MR. WHITE: With an antenna it wouldn't depend on the type of the antenna, it would simply be the pole, be the -- the square footage of that pole including your other appurtenances. COMMISSIONER COYLE: So you're telling me that we are measuring an architectural appurtenances, turning it into square footage and then comparing that into your internal area of the building itself? Page 107 January 7, 2004 MR. WHITE: As a limitation, yes. But keep in mind this would be included along with the elevator, stair shaft, things of that nature, or spiders that are architectural spiders as part of a building. COMMISSIONER COYLE: So 20 percent of the total -- MR. WHITE: Actually, the Planning Commission changed that language to one third. COMMISSIONER COYLE: Okay. So one third of the total floor area of a building can actually be taken up by projections from the top of the building. MR. WHITE: That's not entirely accurate, Commissioner Coyle. I think the relevant text that we need to be talking about is on page 107. COMMISSIONER COYLE: Well, the relevant text that I need to be talking about is the one I'm talking about. MR. WHITE: Well, it's different than the actual provision. COMMISSIONER COYLE: Well, then that's what I'm getting at. MR. WHITE: Yes, sir. COMMISSIONER COYLE: MR. WHITE: Understood. COMMISSIONER COYLE: code itself-- MR. WHITE: Yes, sir. COMMISSIONER COYLE: It's written up one way -- -- and it might be different in the What I'm trying to get at is what is the purpose of this, and how do you go about doing it, because if we're trying to put, you know, have something that says this is truth in advertising, then I want to know how you calculate it, because this can be very, very confusing. MR. WHITE: What it's intended to do is to allow a certain percent of the roof area to be occupied by these types of necessary components that all buildings are required to have. Each of them don't have the same but, regardless, when you look at the aggregate Page 108 January 7, 2004 area, so long as it's one third of the roof area or less then for the purposes of this height calculation they're not considered. COMMISSIONER COYLE: Okay. This doesn't say roof area, is that what you're talking about? MR. WHITE: The B does. COMMISSIONER COYLE: But the code itself does say total roof area. MR. WHITE: Yes, sir. And so -- COMMISSIONER COYLE: Total floor area is incorrect. So we can throw that away, right? MR. SCHMITT: I apologize, again, I should have changed that narrative on the first page. That is an error. The actual code language on the -- that follows the narrative is what we really need to be looking at. That's where the actual language is. This went through so many iterations that I got in a hurry and didn't make changes everywhere we should have. It's my mistake. I apologize. CHAIRMAN HENNING: Commissioner Halas, Commissioner Fiala. COMMISSIONER HALAS: That's -- when I was reading all of this, and I had some difficulties, and I'm not going to find fault, but I had some difficulty as I went through each of these sections just to make sure that we addressed truth in advertising, and I had to end up calling Joe up and we went through this thing piece by piece, and then it finally -- it all fell into place, but that's probably why some of my fellow Commissioners were having a difficult time with this because the fact is that I also had a difficult time. After I went and, in fact, I think came in about six different places in here, but afterwards it all fell into place. CHAIRMAN HENNING: Commissioner Fiala. COMMISSIONER FIALA: And one of the things that was mentioned before was after -- after you received recommendations then some of the words were changed again, and -- and I've just been Page 109 January 7, 2004 really concerned with when CCPC or EAC makes recommendations, and then the staff maybe takes those recommendations and changes them again, and CCPC doesn't see the final results of what staff recommends after they recommended one thing. MR. WHITE: Well, actually in this-- COMMISSIONER FIALA: And I am concerned about that. MR. WHITE: -- this language was developed by the CCPC. They actually took a very active role in this and most of the changes that are on here is their language. MR. SCHMITT: Again, Commissioner Schiffer who's an architect helped write this to make it both facilitate implementation and facilitate, quite frankly, interpretation, and that's what you're looking at is really the language that Brad worked on, and with staff, with the rest of the Planning Commission, and what -- what we don't have is in the reasoning that we didn't go back in the cover sheet the whole history, and that's staff error. We should put that history in there so you would know how this thing has evolved. CHAIRMAN HENNING: Okay. COMMISSIONER HALAS: But after I got -- after I got through with it everything fell into place. CHAIRMAN HENNING: Great. COMMISSIONER HALAS: It actually comes in with truth in advertising where the real height of the building is, where the zoned height is, the FEMA, the whole nine 9 yards, everything fell in line. MR. SCHMITT: For the record, I mean, Mr. Schiffer, Commissioner Halas and I sat down and went through this again, and tweaked it based on the concerns and that was one of, of course, Commissioner Halas' concerns. So I'll put that on the record, as well. CHAIRMAN HENNING: Well, that's great. Anybody else have any concerns before this went through? Okay. Next item. MR. WEBB: The next item for consideration is the concurrency amendment that's division 3.15, that's on page 164 in your LDC Page 110 January 7, 2004 packet and handwritten page 164, however, I believe you have some revised language, and Stan has informed me that the language has been tweaked a little bit more. I think you have handouts. MR. LITSINGER: Good evening, Mr. Chairman and Commissioners, and I will tell you while Mr. Tindall is handing these out, I would not test your patience by rewriting this ordinance thoroughly at this eleventh hour. What we are handing out are changes to this ordinance since your December 16th adoption of your Growth Management Plan amendment to adopt the second part of your concurrency process. What I would like to do tonight is to point out the changes and significant portions of this for your direction at this first public hearing on this amendment which will come back to you on the 29th for your direction on modification or staffs recommended changes and some of the key administration and practical application specifics that we've added to it. CHAIRMAN HENNING: Okay. MR. LITSINGER: I will be referring to the page numbers on the handout. I'd like to point out to you very quickly, and telling you here again, we're implementing all the Growth Management Plan amendments, policies based on both your transmitted amendment on this concurrency issue and responses to the ORK report from the Department of Community Affairs in order to achieve a Comp. Plan that we believe will be in compliance, which we expect it will be. And I would very quickly like to point out to you some of the significant changes that we have made since the adoption of the Comp. Plan amendment. On page four in continuing to hopefully polish this process to the best in Florida, at the very bottom of the page in the yellow highlight and double underline are the changes that we have made since December 16th, the adoption of the Growth Management Plan amendments. Here on the bottom we are changing the process associated with the capacity of road determination to Page 111 January7,2004 reflect their TCMA approach in the second segment by segment approach that we look at outside of TCMA's and to clarify some of the capacity process that we go through. On page five I would like to point out to you what we believe is a significant -- significant practical application addition to this concurrency ordinance, and we are referring to it as the traffic capacity reservation process. And this is a process, that prior to concurrency in consideration of a properly submitted application and transportation impact statement, that capacity within your checkbook real time system can be reserved pending final approval of a final local development order, and I'd also like to add that at the very end of this paragraph, which is fairly lengthy and refers to various portions within this ordinance that deal with notification of approved applications, approval of application, collection of impact fees and in certain case proportionate share that we would further, pending approval of local development order propose to limit these reservations for one year or -- and I would add this language at the very end of the last sentence; or the Board approves an extension to the one-year time period. Now, this is practical application in consideration that when an application is submitted to CD and ES and the transportation portion there goes to Mr. Feder and his team, that there is a time period for review. And there's substantial investment on both sides, and there is a need to be able to have some reliance that in the event that all the applications are approved, fees paid, that when the final local development order is approved, which in some cases can be six, nine months post application that the reservation will still be available. It's a simple explanation to a complex process. I would continue on page six, and yes, sir. COMMISSIONER HALAS: And we'll have a complete -- we'll have a continuing -- a continuing running total of exactly what the impact is on these particular roads? Page 112 January 7, 2004 MR. LITSINGER: Yes, sir. And I will point out to you on the next page is based on your AUIR direction. At the bottom of the page six you will notice that here we have identified the transportation concurrency management system in real time terms and we've additionally added with the quarterly status report to the Board, which Mr. Feder will bring to you on a quarterly basis in order to report to you what's the status of your checkbook. COMMISSIONER HALAS: Fantastic. MR. LITSINGER: Next significant change I just want to point out to you, though, this is from your Comp. Plan amendment on page eight, is the proportionate share provision, which we believe is very significant within your transportation concurrency management areas upon impact on a deficient road segment, and this is, of course, in addition to impact fees, as we discussed at the adoption of your Comp. Plan amendment, which would be required in the event that a project were to be approved. On page 10 under annual update inventory report, here again we're just clarifying some of the sources of data relative to your decision package that you receive annually on your annual concurrency determination relative to population protections, the fact that it's an annual determination on all facilities except roads. On page 12, they're continuing on there is a lot of additional language, and here again, this is the implementing regulation for your transportation concurrency management areas and TCEA's that you adopted on December 16th and it's almost verbatim from your Comp. Plan amendment. I'd like to point out to you on page 15, here we've made a clarification in 3156464 at the top of the page, proportionate share payments, clarified that a proportionate share payment does not provide concurrency. It's subsequent to a finding of concurrency for a project that affects deficient roadways within a TCMA. And on -- on the bottom of page 22, I just want to bring to your Page 113 January 7, 2004 attention, it's not a significant change, but I want to point out that based on your direction to this process that we are expanding the annual PUD monitoring report to include a mandatory traffic monitoring component that is required to be submitted annually in order for us to calibrate our transportation concurrency management system and has some significant penalties if the proper reports are not submitted. I think that's a significant change. And, Mr. Chairman, with that, I would say those are the significant changes both to regulation based on your most recent amendment and the amendments that you adopted on the 16th of December. COMMISSIONER COLETTA: Just a quick question, if I may, Stan, this is quite unique, I don't even know another place that has that particular document put together in this form and fashion. MR. LITSINGER: We're the best. COMMISSIONER COLETTA: We're -- I know that Norm Feder needs to be recognized for the original push brought on this, and, of course, everybody -- major contributions to it. I kind of hope that maybe we'll get some national recognition for this. This is quite a step. COMMISSIONER HALAS: I think the one person that probably is probably the father of this program is Commissioner Coyle when he originally came up with checkbook -- checkbook concurrency a couple of years ago, and this is where it's evolved to and I think it's a great process. COMMISSIONER COYLE: Actually, it was a team effort, everybody was involved, but there's -- there is an important thing here that Stan has done, and we spent quite a lot of time talking about this, but you've all heard these huge numbers of a backlog of approved but unbuilt dwelling units in Collier County. This begins to chip away at that issue, because we know most of it will never be built but yet it's in our inventory, and it affects our calculations in all Page 114 January 7, 2004 of the decisions that we make. So we're going to be moving towards cleaning out all of that inventory that we know will no longer be built, and it will give us a far better, far more accurate management tool with respect to infrastructure in Collier County. CHAIRMAN HENNING: I know of 800 units across the street from where I live that's not going to be built. COMMISSIONER HALAS: Take them all. CHAIRMAN HENNING: Anything else. MR. WEBB: We have two -- CHAIRMAN HENNING: Oh, we do. MR. WEBB: -- registered public speakers, Mr. Chairman, David Ellis followed by Reed Jarvi. MR. ELLIS: Good evening, Commissioners, my name is David Ellis, I'm with the Collier Building Industry Association, and certainly what's here is what primarily we talked about the last time, I mean, it seems to reflect a lot of that. And your staff has done very good work in putting this together. There's one thing they actually have worked to address that we're pleased with, because we talked about it early on and it didn't make it in the Comp. Plan is on the traffic capacity reservation system that Stan just mentioned. It's actually -- it's very important for those that are looking for that certainty in that process if they get in there, that they know that once they're in the process that we're holding that capacity. The original language -- and this language actually we just got in the last day or so, so it's -- I'm pleased that it's here, but I'm still a little concerned, there've been a number of stakeholders that have been involved in this process and between now and the next time you come together, I hope to have that fully vetted. One of the concerns was that there are people who are actually actively working to get approvals and it doesn't happened in a year. Stan did mention that they would be able to come to you and kind of say, look, let me show you how hard we've been working, but Page 115 January 7, 2004 because of the Corp of Engineers, or somebody else, I think Norm can tell you stories about how it takes you more than a year to get a Corp permit sometimes, that you would extended that. As long as that process is kind of understood that it's a pretty, you know, they'll be some easy parameters to work with, and that staff would work with us, that's the one thing I want to feel more comfortable about before I stand up and say this is a great -- it's a fine idea. It's the right idea, and I think it's appropriate for those that are in the process, we just want to make sure that it's understood and we can maybe talk about functionally how it will work. Other than that, I think overall this reflects what we've been working on for the past year and a half, or two years. MR. LITSINGER: Two years. MR. ELLIS: Thank you. CHAIRMAN HENNING: Next speaker. MR. WEBB: The next public speaker is Reed Jarvi. MR. JARVI: For the record, Reed Jarvi, I'm an engineer -- I've been in front of you many times, and also representing CBIA. David stole most of my thunder, but, yeah, the biggest we have the new language of the capacity reservation system. We had talked about this about a year ago, and we're glad to see that it's in -- I think there's some issues here about how to make it operate, but the concept is down here, and we've talked with both Stan and Norm Feder about it, and we'll get together in the next year term and try to work out details. I don't think there's any big deal here, other than, as David said, it's very important for us that there is a process in place that if for whatever reason it goes beyond one-year that we could extend it a year. And as David said, and you are well aware that occasionally environmental permitting can take longer than that, and we can be diligently proceeding -- or pursuing our permits and just stuck in the water waiting for those permits to hatch, and we'd hate to be spending hundreds of thousands of dollars and all of a sudden get Page 116 January 7, 2004 concurrency yanked out of it -- yanked out from under us because we can't get those permits yet. But as long as we have that ability to come back and talk to you and show you that we are diligently proceeding, we don't have an objection to that and probably actually would be in favor of having a frame so people that aren't diligently pursuing it are taken out of the system. And the last thing I have, just a comment, and I've made it before, it's page eight, it's 3.15.3.31 proportionate share calculation, just to keep it on the record, you know, my position is that we should not be doing a proportionate share in the TCMA's, that that is an impact fee issue, and a proportionate share above and beyond what is already the highest impact fees is inappropriate and unfair for the development community. I believe that the proportionate share calculation or-- excuse me, the proportionate share payment is to go to operational improvements that will improve capacity, that those should be impact fees, because that's what impact fees are for to give back the capacity that the projects are taking. But that's all I have to say about it for now, and just wanted to get it on the record. Thank you very much. CHAIRMAN HENNING: Thank you. Anything else? Next item. MR. WEBB: The next item for consideration, we have two sign amendments left, 2.5.5.2.3 on page 101, handwritten page 101 of your LDC packet, agenda item page 136. This is simply a realignment of the text to read more clearly. There's really no regulatory change. CHAIRMAN HENNING: Real estate signs? MR. WEBB: Correct. CHAIRMAN HENNING: Since we're talking about signs, I still continually see advertised public hearing signs that are like a year and a half old out there. Henderson Creek PUD is one of them. Do we have to live with those forever? Page 117 January 7, 2004 MS. MURRAY: No, actually there's a regulation that says they have to be taken down within a certain time frame. So if it's not down, then it would be code enforcement -- CHAIRMAN HENNING: I should contact Michelle Arnold. MS. MURRAY: Yes. CHAIRMAN HENNING: Thank you. Any comments? Next item. MR. WEBB: The next item is section 2.6.33.10, on handwritten page 111 of your LDC packet, that's agenda item page 146. This particular provision allows for Coming Soon signs, basically just a sign to inform the public of a new business in the area. You can see that there is text there. It's pretty self-explanatory. CHAIRMAN HENNING: Next item. MR. WEBB: The next item is a grouping of items. I don't know exactly how you want to proceed here. What might work is I could call out all the section numbers and the particular page numbers, then you can stop me if you have any questions. COMMISSIONER COLETTA: Well, what are we working from? MS. MURRAY: We're working from your-- MR. WEBB: The agenda sheet. MS. MURRAY: Your agenda sheet. These are all of the amendments related to the interlocal agreement between the County and the School Board, so these are, basically, the implementing regulations pertaining to that. COMMISSIONER COYLE: Are they different from what we've already gone through? MS. MURRAY: No, not to my -- they're pretty standard. MR. DERUNTZ:. For the record, Mike DeRuntz of Zoning and Land Development Review. There are four areas that these revisions deal with. The first is -- they're identifying educational ancillary plans as either permitted, conditional or prohibited uses in each of the Page 118 January 7, 2004 different zoning districts. It's also, in each of the zoning districts it's identifying a front setback requirement where it's 50 feet on the collector and arterial roads, and 25 feet for local roads. Third, we're identifying the -- as a PUD is reviewed either by -- by an effort by the developer of that PUD, or an actual -- by the school district, that the whole PUD won't be reviewed for all its requirements. They'll be specifically looking at the school board -- or the educational plan as a -- including that as a conditional or permitted use within the PUD regulations. And fourthly is going to be incorporating the school board review process into the LDC regulations. And these are right from the interlocal agreement. This is the last portion of the implementation of that agreement, the last -- previous two reviews or LDC sessions, we implemented other sections of the development agreement and this is the final part, and we'll omit all our obligations for this agreement. CHAIRMAN HENNING: Okay. MR. WEBB: Patrick, do we need to read the section numbers in for legal purposes or-- MR. WHITE: I believe that that's been the past practice and I think certainly that's the safest one, and that way if there are any comments that any Board member may have about that particular section we could get them on the record for direction for the second public hearing. MR. WEBB: I'll just proceed numerically, then, and if you have any questions feel free to stop. The first one is section 2.2.2.2.1. CHAIRMAN HENNING: Any questions? Commissioner Coletta. COMMISSIONER COLETTA: I don't, no. CHAIRMAN HENNING: It's page one. MR. WEBB: Page one of the LDC packet. CHAIRMAN HENNING: Yeah, we're already -- Page 119 January 7, 2004 COMMISSIONER COYLE: Unless you've got some changes. CHAIRMAN HENNING: Next one. MR. WEBB: The next section number is 2.2.3.2.1 on page eight of your LDC packet. Next is -- CHAIRMAN HENNING: Wait a minute. Any questions? Next one. MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN HENNING: 2.2.5.2.1 on HENNING: 2.2.6.2.1 on HENNING: 2.2.7.2.1 on HENNING: Next is 2.2.4.2.1 on page 15 ofthe packet. Any questions? Next one. page 17. Any questions? Next. page 20. Any questions? Next. page 22. Any questions. No. 2.2.8.3 on page 24. HENN1NG: Any questions? None. 2.2.9.2.1 on page 26. HENNING: Any questions? Coyle. COMMISSIONER COYLE: No. CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: HENNING: Next. 2.2.10.2.1 on page 30. HENNING: Questions. Next. 2.2.12.2.1 on page 32. HENNING: Any questions? 2.2.13.2.1 on page 37. Commissioner Next. HENNING: Any questions? Next. 2.2.14.2.1 on page 41. HENNING: Any questions? 2.2.15.2.1 on page 47. HENN1NG: Any questions. None. 2.2.15 and a half, 2.1 on page 52. None. Page 120 January 7, 2004 CHAIRMAN HENN1NG: Any question? COMMISSIONER HALAS: The only question I have is on page 57, the first time it shows up is gun shops, and I didn't understand -- that are permitted uses, and I didn't realize that guns shops -- and another place that we get farther in is talking about indoor shooting ranges, and I didn't know how close those are to schools, and I know it's an indoor shooting range, but just -- COMMISSIONER COLETTA: Well, what difference would have to do with the closeness to school and church, they're not a bar. No seriously, I mean, you're painting something that's -- that's an accepted American tradition. COMMISSIONER HALAS: I'm not against guns -- COMMISSIONER COLETTA: I don't have one, don't worry about it. CHAIRMAN HENNING: My friend the postman would kill us if we messed with that one. COMMISSIONER HALAS: I was just surprised that that's when it first showed up and it didn't show up prior to this as we were going through all the other regulations. MR. WEBB: Yes. This is a change that was actually made in cycle two of 2003. The underlined portion of that was basically just a red flag so that I know to proceed accordingly with the ordinance that was already approved in the last cycle. So I apologize for the miscommunication, but if you look under the other notes in the preamble it explains -- so it doesn't have anything -- it doesn't pertain to the school board amendments at all, it's just like, you know, a scrivener's notification that I need to do that in the ordinance. CHAIRMAN HENNING: Okay. Next item. MR. WEBB: Next item is section 2.2.18.2.1 on page 60. CHAIRMAN HENNING: Any questions? None. MR. WEBB: Section 2.2.19.2.1 on page 63. CHAIRMAN HENNING: Any questions? None. Page 121 January 7, 2004 MR. WEBB: CHAIRMAN MR. WEBB: CHAIRMAN MR. WEBB: 2.2.20.7 on page 66. HENNING: Questions? None. 2.7.3.5 on page 113. HENN1NG: Any questions? None. 3.3.4.1 on page 139. CHAIRMAN HENNING: Any questions? None. Now we go to the PSP process? MR. WEBB: That's correct. And once again this is several amendments, so I don't know if you want to proceed as we did with the school board amendments, but it is -- CHAIRMAN HENNING: This is a great change to the -- MS. MURRAY: This is just eliminating the PS preliminary subdivision, platted PSP process so these are all, all the text changes necessary to do that. MR. WEBB: Actually, just to clarify it's to make the process optional. MS. MURRAY: Thank you. Sorry. CHAIRMAN HENNING: Why don't we just go through that. Does anybody have any tabs on any PSP? MR. MUDD: Mr. Chairman, if I could just say one thing, I sat in the back and I watched when you went through this, just for the people that are out there watching, okay, when you had one that talked about -- CHAIRMAN HENN1NG: Would you state your name, for the record, please. MR. MUDD: My name is Jim Mudd, I'm the County Manager. When you talked about gun shops and schools, okay, and I don't want people to take it the wrong on the outside, okay. What the Commissioners are doing is they're adding ancillary plans where the schools would have to store their buses, and things like that, repair shops for schools buses and they're adding an ancillary plan as a permitted use in an industrial district. Okay. And I want to make Page 122 January 7, 2004 sure there's no confusion out there that we're talking about there's going to be gun shops next to schools because that's not the case at all. It's just add the ancillary plan for the school into the industrial district. That's all I have, Mr. Chairman. Well, thank you. That's a great clarification. Does anybody have any tabs on the PSP? CHAIRMAN HENNING: Go ahead and run through them. MR. WEBB: All right. First section number is 2.4.7.2 on page 97. 2.7.4.9 on page 117. 3.2.6.2 on page 119. 3.2.6.3.5 on page 121. 3.2.7 on page 122.3.2.8.2.3 on page 127. 3.2.8.2.14 on page 129.3.2.8.3.8 on page 130. 3.2.8.3.19 on page 131.3.2.8.4.7 on page 134.3.2.9.1.2 on page 137.3.5.5.1.3 on page 156.3.12.5.1.2 on page 158.3.12.5.2 on page, 159, and that's it for that particular amendment. CHAIRMAN HENNING: Okay. And is there any other amendments? MR. WEBB: Yes. There are the remaining amendments. And as I have listed on the agenda number nine, other amendments, I guess we could proceed numerically as we normally do. Now that we have the other issues out of the way. CHAIRMAN HENNING: Do you need-- Ms. Court Reporter? Okay. MR. WEBB: You have to give me a second, I have to figure out where our starting point is here. (A short recess was taken.) CHAIRMAN HENNING: Let's take a stretch. Take a, break for five. sheet, section 2.3.5, which is on page 93 of the actual LDC packet. deals with passenger vehicle parking. And this is simply renumbering the section based on a prior scriveners error. CHAIRMAN HENNING: Next item. MR. WEBB: The next item is on page 7 of your LDC summary It Page 123 January 7, 2004 CHAIRMAN HENNING: Okay. Next item. MR. WEBB: Next item is section 2.3.21.4 on page 96 of your LDC packet, off street loading. Here we're restructuring the language for clarification purposes. CHAIRMAN HENNING: Okay. Any questions? Next item. MR. WEBB: Next item is section 2.4.7.5 on page 99 of your packet. Here we're incorporating the construction standard handbooks for work within the public right-of-ways of Collier County, Florida. CHAIRMAN HENNING: We have amended this several times at' the Board of Commissioners, so it cannot be amended unless the Land Development Code is amended? MS. MURRAY: No, this is mainly referencing that manual. So if you amend the manual that would be separate. CHAIRMAN HENNING: Okay. Next item. MR. WEBB: The next item is on page 10 of your LDC summary sheet. The actual amendment is on page 112 of your LDC packet, deals with kitchens and dwelling units. CHAIRMAN HENNING: Yes. Can you explain that one to the Board. MR. WEBB: Sure. This is a -- let me get to the actual amendment here. CHAIRMAN HENNING: I think Community Development had a problem in interpreting guest quarters -- MR. WEBB: Yeah, I mean that was my understanding of the impetus for this particular amendment, just clarifying, you know, that a secondary kitchen and -- as it pertains to guest quarters. CHAIRMAN HENNING: Mr. Schmitt MR. SCHMITT: Yes, Mr. Schmitt again, Joe Schmitt for the record, Administrator, Community Development and Environmental Services. What we're trying to do here is clarify a kitchen versus what you would call something other than a kitchen, an outdoor Page 124 January 7, 2004 kitchen, or whatever, because what this does is -- what we're trying to do here is define the trigger here for impact fees. What we've had -- as an explanation, somebody would have a garage, want to convert it to a living space, add a closet, add the resemblance of a kitchen, turn it into a rental space, which, of course, in some areas of the county, you can't have rental space, but they are turned into rental space. The only way we've been catching that is through the review process, and then we would implement an impact fee for that and we would try to prevent some of this doubling up and tripling up in homes. So what we're trying to do here is just define basically what a secondary kitchen is, so that somebody can't come in and say, well, it's, you know, it's my secondary kitchen, when we know, in fact, it's a primary because it's separated and defined by walls, and it's a separate living area. So that's really what this is. But it does trigger additional impact fee, if it's not a secondary kitchen, if it's deemed another kitchen it does trigger impact fees associated with it. CHAIRMAN HENNING: And the question I have, then, are we taking a single family lot and turning it into a multi-family lot? MR. SCHMITT: No, that's actually what we're trying to prevent. CHAIRMAN HENNING: Okay. Well, we can't collect impact fees if it's not allowed anyway. MR. SCHMITT: Well, we would collect impact fees based on an increase in livable space. What we're trying to preclude is the proliferation of building kitchens and turning the additional living space into another apartment or dwelling that CHAIRMAN HENNING: So you won't built if it's in the plans then, as a secondary -- they would rent. allow the kitchen to be MR. SCHMITT: Yeah, basically it says it has to be accessible through the main unit. You can't divide a garage and build a separate kitchen and claim that's my auxiliary kitchen. We're saying it has to be -- there has to be an adjoining door or avenue to preclude what Page 125 January 7, 2004 we're trying to prevent, and that is the building of-- turning a garage, maybe, into a habitable space, and renting it to a renter. And that's all this is trying to do is to preclude the proliferation of turning -- we have no way of detecting it otherwise, so when they come in for review, now we can say, hey, you've got to have it -- it's got to connect to the house to preclude this room becoming something that could be rented. CHAIRMAN HENNING: All right. Commissioner Fiala, Commissioner Halas. COMMISSIONER FIALA: He's answered my question. Thank yOU. CHAIRMAN HENNING: Commissioner Halas. COMMISSIONER HALAS: This wouldn't have any effect on somebody building a kitchen out in their patio? MR. SCHMITT: Absolutely none at all. None at all, it just precludes kind of a separate room that can be turned into a rental. CHAIRMAN HENNING: Thank you. Next item. MR. WEBB: The next item is section 3.2.3, which is on page 11 of your summary sheet, page 118 of your LDC packet. What we're doing here is adding language to clarify the platting requirements. CHAIRMAN HENNING: Okay. Any questions? COMMISSIONER HALAS: Nope. CHAIRMAN HENNING: Please continue. MR. WEBB: Next item is 3.2.6.2, page 119. I think we did that one. The next item that we haven't covered is 3.2.8.3.25, page 133 of your LDC packet, page 12 of the summary sheet. Deals with central water system. We're clarifying the language to add color coding to the pipes. That's really all that is. CHAIRMAN HENNING: Okay. Any questions? Please continue. MR. WEBB: The next item is section 3.3.7.1.2 on page 13 of Page 126 January 7, 2004 your summary sheet, page 153 of your LDC packet. MR. WHITE: I take that back, Mr. Webb, on that we did previously consider that as part of the building height. MR. WEBB: My mistake. Yep. That's correct. CHAIRMAN HENNING: Next item. MR. WEBB: Next item is on page 15 of your LDC summary sheet, division 6.3, definition for front yard, that's on page 193 of the packet. CHAIRMAN HENNING: Any questions? That's for what kind of zoning? MS. MURRAY: That's for the Estates. CHAIRMAN HENNING: Estates district. COMMISSIONER COLETTA: We're talking about Golden Gate Estates or-- MS. MURRAY: Correct. It's a consolidation of the existing language, is basically what it is, yes. MR. WEBB: Okay. The next item. CHAIRMAN HENNING: Well, wait a minute, I see some change of language. MS. MURRAY: There is -- well, let me clarify that, we had put in some clarification for the setbacks for the Estates zoning district in an earlier amendment. I assume you considered that already. There was no regulatory change, but the problems we were having, and we've seen them, is interpretation or application of the district's standards. It was challenging or difficult to understand, and what was happening was permits -- some permits were being approved with an error in the setbacks and some builders were having difficulty interpreting the code. So we rewrote the section for clarity sake and I believe this is just a cross reference to that. MR. WEBB: Actually, you haven't seen that. That's one that I skipped over. I apologize. On page 11 of the LDC packet, page one of your summary sheet, it's 2.2.3.4.3 and Susan just described the Page 127 January 7, 2004 situation. Page 11 of your-- MS. MURRAY: Page 11 of your LDC packet. COMMISSIONER COYLE: What's the paragraph number? MR. WEBB: The section number is 2.3 -- MS. MURRAY: 2.2.3 -- COMMISSIONER COYLE: 2.2.3? MS. MURRAY: Correct. MR. WHITE: .4.3. MS. MURRAY: 2.2.3 is the section number. 2.2.3.4.3 is the subsection number. COMMISSIONER COYLE: That's got to be on page six or seven or somewhere. CHAIRMAN HENNING: Eleven. MS. MURRAY: Handwritten 11. COMMISSIONER FIALA: Oh, handwritten 11. Okay. There we go. There we go. COMMISSIONER COYLE: I don't have anything that's different in mine. Mine is all handwritten. MR. WEBB: What you have is the agenda items in the right-hand comer, probably is what they're referring to. COMMISSIONER COYLE: Yeah. COMMISSIONER FIALA: Would you like to see mine? COMMISSIONER COYLE: No, I really don't need to. I just need to tell you on my page 11 it includes sections 3.2.6.2 through 3.2.8.2.14, so I suspect there's a difference in numbering between what you got, and what I've got. MR. WHITE: Are you talking about the summary sheet or the packet? COMMISSIONER COYLE: I'm talking about the summary sheet. MR. WEBB: Right. We're talking about the actual packet, the actual amendments, so the handwritten number is actually on the Page 128 January 7, 2004 actual amendment-- COMMISSIONER COYLE: Okay. MR. WEBB: -- that follow the summary sheet. COMMISSIONER COYLE: Okay. Go ahead. I'm going to deal with the summary sheet. CHAIRMAN HENNING: This is only dealing with non-conforming lots and lots that have no right-a-way or no right-of-way easements. MS. MURRAY: It's a revision to clarify the setbacks for comer lots in the Estates zoning district. The setbacks themselves will remain unchanged. This is just a clarification. CHAIRMAN HENNING: Okay. Next item. MR. WEBB: The next item is division 6 -- 6.3, once again, the definition section of secondary kitchens. This is on page 15 of your LDC summary sheet of page 195 of the actual packet, handwritten 195. CHAIRMAN HENNING: Any questions? None. Please continue. MR. WEBB: Okay. The next item is, I believe, appendix D. This is on page 201 of your LDC packet. It's on page 16 of the summary sheet. It's an update to the airport noise zoning map. And it's simply an update based on some FAA regulations. CHAIRMAN HENNING: Okay. That's it? MR. WEBB: That's it. MR. WHITE: Mr Chairman, just for the purposes of the record, I'd like to put on to let folks know that the second public hearing with regards to this matter would be held on January 29th, as to all of the items other than what we concluded today, which is 2238, and it will be a first public hearing for the eastern land amendments. Those will be continued from 12/10/03 through today's 1/7/04 meeting until the 1/29/04 meeting. The only matter, I believe -- and that meeting would be in these chambers. Page 129 January 7, 2004 The only matter, I believe, we need to have your determination on is with respect to the time that you would like to have us begin, so we can advertise for the 1/29 meetings. CHAIRMAN HENNING: Well, the only thing we're dealing with is the rural fringe and the stuff that we covered today, as far as adoption. MR. WHITE: Yes. CHAIRMAN HENNING: So in my -- in my perspective I think we can start at 5:05, go through these things that we talked about and get a vote, and then hear the rural fringe stuff. MR. WHITE: If you believe that's enough time, I'm more than willing to go along with your judgement, but I'd defer to staff if they have any comments. CHAIRMAN HENNING: Mr. Schmitt. MR. SCHMITT: You have another book about this thing in regards to the Eastern Lands amendments, which contain the environmental standards, design criteria-- CHAIRMAN HENNING: What is your recommendation? MR. SCHMITT: My recommendation, I think, we would-- we should continue, but we would look at starting again maybe two or 3:00 o'clock in the afternoon, and we would start with those items. We could then go back to these on a second hearing. We could do that, or we could do it the other way around. CHAIRMAN HENN1NG: Well, you guys could figure that out. MR. SCHMITT: Yes, we'll figure that out, but I'm guessing-- Carlton Fields will be down and Marty, and Nancy, thank you, will be down here and Nancy, thank you, will be down here and walking through -- walking through the amendments, and the design criteria, and the associated implementation for the rural fringe and Eastern Lands. I know there will be many public speakers involved in that, or at least I suspect there will be public speakers, especially with the environmental standards and other criteria to be addressed. I'd Page 130 January 7, 2004 recommend we do start earlier. We'll look at a time to schedule that earlier. MS. MURRAY: We need to announce that now, correct? CHAIRMAN HENNING: We'll do that now. Commissioners, it's recommended 2:00 or 3:00? COMMISSIONER FIALA: 3:00. CHAIRMAN HENNING: 3:00. COMMISSIONER FIALA: Give them plenty of time. CHAIRMAN HENNING: Do you need a motion on that? MR. WHITE: Yes, please. COMMISSIONER COLETTA: Motion to meet at 2:00 on that. COMMISSIONER HALAS: Second. MR. WHITE: Motion to have the third cycle second public hearing and first public hearing for the Eastern Lands and we can decide at that time which of them you would like to hear first. COMMISSIONER COLETTA: Well, I think we're going to have to announce it ahead of time. So we can have the people here at the right time for whatever -- MR. WHITE: Well, we will-- CHAIRMAN HENNING: Do you have a preference and would choose to do so now, that'll be great. MR. WHITE: Or why don't we do the second reading first. COMMISSIONER HALAS: Yeah, the rural land should follow a little bit later. MR. WHITE: My expectation is that you'll be able to go through these second public hearings probably within a half hour. COMMISSIONER COLETTA: I agree. MR. SCHMITT: We will have -- we will have back to you for Board approval as a separates ordinance will be the Vanderbilt Beach overlay, which will be coming separate from all the rest of these, because we want to get that to you as soon as possible. MR. WHITE: And we'll have that prepared for the Chairman's Page 131 January 7, 2004 signature probably within a matter of a day or so, and it will go to the secretary of state for filing, so that it will become effective definitely before the 31 st. MR. SCHMITT: Yeah. It'll be a separate -- CHAIRMAN HENNING: Okay. There's a motion by Commissioner Coletta, and the second by Commissioner Halas, on the times of the -- the next meeting, hearing on the LDC. All in favor of the motion signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN HENNING: Any opposed. (No response.) CHAIRMAN HENNING: Motion carries unanimously. Anything else? MR. WHITE: No, sir. CHAIRMAN HENNING: Thank you. We are adjourned. (The LDC meeting adjourned at 7:08 p.m.) Page 132 January 7, 2004 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 7:08 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIA~ISr~/~TS ~DER ITS CONTROL OM HENNING, Chairm~tn ATTEST: DWIGHT E. BROCK, CLERK These m~nutes 3pproved by the Board on presented ¢ or as co~ected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE NOTTINGHAM AND DAWN MCCONNELL Page 13 3