HEX Transcript 01/11/2018 January 11,2018 HEX Minutes
TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY HEARING EXAMINER
Naples,Florida,
January 11,2018
LET IT BE REMEMBERED,that the Collier County Hearing Examiner,in and for the County of
Collier,having conducted business herein,met on this date at 9:00 a.m.,in REGULAR SESSION at 2800
North Horseshoe Drive,Room 609/610,Naples,Florida,with the following people present:
HEARING EXAMINER MARK STRAIN
ALSO PRESENT: Raymond V.Bellows,Zoning Manager
Fred Reischl,Principal Planner
Scott Stone,Assistant County Attorney
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AGENDA
THE COLLIER COUNTY HEARING EXAMINER
WILL HOLD A HEARING AT 9:00 AM ON THURSDAY, JANUARY 11, 2018 IN CONFERENCE ROOM 610
AT THE GROWTH MANAGEMENT DEPARTMENT/PLANNING & REGULATION BUILDING, 2800 N.
HORSESHOE DRIVE, NAPLES, FLORIDA
INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES UNLESS OTHERWISE WAIVED BY THE
HEARING EXAMINER. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS
INCLUDED IN THE HEARING REPORT PACKETS MUST HAVE THAT MATERIAL SUBMITTED TO
COUNTY STAFF 10 DAYS PRIOR TO THE HEARING. ALL MATERIALS USED DURING
PRESENTATION AT THE HEARING WILL BECOME A PERMANENT PART OF THE RECORD.
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE HEARING EXAMINER 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.
DECISIONS OF THE HEARING EXAMINER ARE FINAL UNLESS APPEALED TO THE BOARD OF
COUNTY COMMISSIONERS.
HEARING PROCEDURES WILL PROVIDE FOR PRESENTATION BY THE APPLICANT,
PRESENTATION BY STAFF, PUBLIC COMMENT AND APPLICANT REBUTTAL. THE HEARING
EXAMINER WILL RENDER A DECISION WITHIN 30 DAYS. PERSONS WISHING TO RECEIVE A
COPY OF THE DECISION BY MAIL MAY SUPPLY COUNTY STAFF WITH THEIR NAME, ADDRESS,
AND A STAMPED, SELF-ADDRESSED ENVELOPE FOR THAT PURPOSE. PERSONS WISHING TO
RECEIVE AN ELECTRONIC COPY OF THE DECISION MAY SUPPLY THEIR EMAIL ADDRESS.
1. PLEDGE OF ALLEGIANCE
2. REVIEW OF AGENDA
3. ADVERTISED PUBLIC HEARINGS:
A. PETITION NO. PDI-PL20170002544 – Livingston Pro Center, LLC requests an insubstantial
change to the Hiwasse PUD, Ordinance No. 05-59, as amended, to reduce the front yard setback,
revise a development commitment relating to transportation, add two new development
commitments relating to utilities, add two new deviations relating to landscaping and buffering,
remove one deviation relating to sidewalks and bike paths, modify the plant material notes on
Exhibit “C,” and revise the Master Plan to reflect these changes. The subject property is located on
the west side of Livingston Road, approximately one quarter mile south of Pine Ridge Road, in
Section 13, Township 49 South, Range 25 East, Collier County, Florida, consisting of ±13 acres.
[Coordinator: Fred Reischl, Principal Planner]
B. PETITION NO. PDI-PL20160003482 – Distinctive Residential Development at Livingston,
LLC requests an insubstantial change to Ordinance No. 2008-06, as amended, the Pezzettino Di
Cielo RPUD, to add two deviations relating to landscape buffers and fence/wall height, to delete one
deviation relating to cul de sac length, to modify development standards relating to minimum
principal and accessory structure setbacks, to add a new cross section exhibit, and to revise the
Master Plan to reconfigure the site layout. The subject property is located on the east side of
Livingston Road, approximately one-half mile north of Veterans Memorial Boulevard, in Section
12, Township 48 South, Range 25 East, Collier County, Florida, consisting of ±17.52 acres.
[Coordinator: Nancy Gundlach, Principal Planner]
4. OTHER BUSINESS
5. PUBLIC COMMENTS
6. ADJOURN
January 11,2018 HEX Minutes
HEARING EXAMINER S TRAIN: Welcome to the Thursday,January 11th meeting of the Hearing
Examiner's Office. If everybody will please rise for Pledge of Allegiance.
(Pledge of Allegiance was recited in unison.)
HEARING EXAMINER STRAIN: Thank you. We have a few housekeeping matters.
Speakers will be limited to five minutes unless otherwise waived;decisions are fmal unless appealed
to the Board of County Commissioners;and a decision will be rendered within 30 days.
The first item up is the review of the agenda. We are announcing one change to the agenda today,and
that is for Item 3.B. Item 3.B is for the Pezzettino RPUD--or maybe the Pezzettino Di Cielo RPUD--by the
applicant,Distinctive Residential Development at Livingston,LLC.
At the 1 lth hour yesterday afternoon we were notified of a procedural issue involving a legal concern
by one of the property owners.We need time to research that before we proceed with that hearing,so that
particular advertised public hearing,Item 3.B,is continued until January 25th. Same time,same place,but
that's our next regular meeting.
And so that one,if you're here for that one today,we will not be discussing that one today because of
the issue raised late yesterday. Sorry for the short notice.
Ray?
MR.BELLOWS: We did have one registered speaker on that. Kathy Potts. She's here.
HEARING EXAMINER STRAIN: Ms.Potts,I hope you could just nod--I hope you
can--otherwise you'll have to come up to the mic and identify yourself if you want to speak on this matter.
Although it would be better if you could wait till we--
MS.POTTS: Well,the only problem,sir--
HEARING EXAMINER STRAIN: You'll have to come up,address--tell us your name for the
record,and you'll need to be sworn in by the court reporter.
(Witness was duly sworn.)
HEARING EXAMINER STRAIN: Sorry for the inconvenience.
MS.POTTS: Well,I would love to be here on the 25th,but Collier County is expecting me at jury
duty that entire week. So unless I get lucky and don't have to go to jury duty.
But I think--I'm a Mediterra resident and I live on the east side of Mediterra.
HEARING EXAMINER STRAIN: Nancy,whoever is talking in the audience,would you please
stop talking now? We've got someone speaking and we cannot hear over your discussion.
I'm sorry,Miss.
MS.POTTS: And there has been a negotiation between the Mediterra MCA,Mediterra Community
Association,with Distinctive Homes,who is the developer and/or owner. And many of the residents,
particularly on the east side,we have no real representation on the MCA board from the east side of Mediterra.
So we would just like an opportunity--and I did make contact with Mr.Arnold,who is a planner for
Distinctive. So we would--you know,I engaged with him and said I would like to express some of the things
that the residents are interested in.
So as a follow-up to the delay,that was legally appropriate,we would like some of the east side
residents just to have a conversation and try to smooth this out so that it's a win/win for everyone. So...
HEARING EXAMINER STRAIN: I think that's a good point. And I'm--it's fortunate that we had
the delay,it will give Mr.Arnold time.
And I know, I've worked with Mr.Arnold in the past,he's always responded to requests like this,so
my assumption is he will do so before the next two weeks is over. So hopefully we'll have a positive report
from you and your organization. So thank you.
MS.POTTS: Thank you. And if I'm lucky,I'll be here on the 25th.
HEARING EXAMINER STRAIN: I hope you are.Thank you very much.
MS.POTTS: Thank you. I appreciate it very much.
HEARING EXAMINER STRAIN: Is there anybody else on this particular item that cannot be here
on the 25th that would like to speak today?
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(No response.)
HEARING EXAMINER STRAIN: Okay,this item, Petition No. PDI-PL201600003482,Pezzettino
Di Cielo RPUD, is continued to January 25th.
With that--thank you all. And with that we'll move on to the remaining advertised public hearing.
It's 3.A,Petition No. PDI-PL20170002544. It's the Livingston Pro Center,LLC for an insubstantial change to
the Hiwasse PUD. It's on Livingston Road just south of Pine Ridge.
All those wishing to testify on behalf of this item,please rise to be sworn in by the court reporter.
(All speakers were duly sworn.)
HEARING EXAMINER STRAIN: Thank you.
Now,members of the public here for this,I see two or three people. And I wasn't looking up while
everybody stood.
THE COURT REPORTER: Not everyone was sworn in.
HEARING EXAMINER STRAIN: Okay. If you intend to speak today,if you're here to address
this matter,you need to be sworn in. So I'll ask one more time if anybody is here to speak and has not been
sworn in,please rise.
(No response.)
HEARING EXAMINER STRAIN: Okay. With that,I have some disclosures. I have received
some correspondence,a letter of no objection from the homeowners association of Kensington. I've talked to
staff; I've talked to the applicant a couple of times. And we're here today to clarify some matters that were
again found late yesterday. And I met with the applicant early this morning so we would have a more
productive meeting.
Bob,since there are members of the public here,regardless of whether or not they may speak,can you
at least offer us some narrative in regards to this project,and then we'll get into the fine points you and I talked
about earlier?
MR.MULHERE: Yes,sir. I guess I could use the visualizer and locate the project for everybody.
I'm sorry I have my back to you, but I've got to look forward.
So on the visualizer--maybe if I stand over this way--is an exhibit,Exhibit A-1,which shows a
portion of the Hiwasse PUD,the portion where most of these changes are effective that we're proposing.
And I want to give you a little bit of background. My client,Tom Taylor,who is here with me,owns
this property.
The northern portion of the PUD was sold and is under development,has an approved SDP for self
storage. So this is the southern portion and it's under review for SDP.
And during that process at some point it was discovered that there was a county force main located at
various depths on the property off of Livingston Road, I think as deep as around 20 feet into the property,
without virtue of an easement. I guess apparently this happens from time to time.
And once that was discovered,the county was anxious to correct that. And my client has entered into
agreements with the county to provide easements at no cost to the county,to relocate that easement. At the
same time the county wanted a few other easements for some additional infrastructure and those easements
have also been granted.
So the property--we had to resolve these issues. And as we began to look at these issues,a few other
issues arose. For example,the southerly most building closest to Kensington and Edenwood Lane have an
issue relative to the setback and some buffering issues,landscape buffer issues. And we've addressed those in
this insubstantial change.
We met with the Kensington Park Master Association. And as,Mr. Strain,you indicated,they
provided a letter of support.And we have entered into a private agreement with them to provide financial
assistance in sharing the cost of improving the landscape buffer adjacent to Edenwood Lane.
I'll show you a picture. Let's see which one best shows. Well,this one does pretty well. There's a
little glare on there.
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HEARING EXAMINER STRAIN: You're upside down,Bob. Just flip it around 180 degrees
would be good.
MR. MULHERE: There we go.
So the buffer that I am referring to is right--get my bearings--right here. And I'm assuming that
photo may have been pre-Irma. It doesn't show justice in there but I did provide some pictures when I
submitted the PDI. It was a very substantial landscape buffer,nicely landscaped with the thick hedge and some
royal palms and some other canopy trees. I think there was some damage as a result of the storm.
But as it turns out,the Kensington Park Master Association was already looking at replacing some of
the vegetation and improving that buffer. So it was kind of a natural tie-in for us to support them in that effort.
And of course we are not providing,as part of this PDI,a landscape buffer on our property, so we'll have a
shared buffer there.
There was some other clean-up language which was required relative to transportation requirements,
relative to utility requirements,relative to the dedication of these new easements that I referenced.
And two deviations: One amending an existing deviation,and one providing for a new deviation.
They both deal with landscaping.The existing deviation had allowed improvements to the existing FP&L
service road by constructing a bike path. We've struck through that. We've struck through the requirement
for the bike path because the county has agreed to cover the cost of construction of that bike path.
And as I know you're aware, Mr. Strain,there was a valuation of the value of construction of the bike
path and the value of the easements,and they were within$500 in that easement,so they're obviously very
close.
HEARING EXAMINER STRAIN: That information--yes,that information was just finalized by
Toni Mott's office over at Real Property about a week or so ago,at least I got the information,so...
MR.MULHERE: Great. So we've asked for a deviation,as I indicated,for the southerly buffer,and
then a deviation related to the foundation plantings.
And you and I had a discussion the other day relative to that second deviation which was for
foundation plantings so that we would be able to locate those anywhere on the site due to the unique nature of
this development and the type of use. And I think you had a suggestion for an additional sentence there that
would limit this deviation to the development of the storage facility.
HEARING EXAMINER STRAIN: Your justification for the deviation raised,the proposed
buildings will function as automobile garages with the site generally functioning as a vehicular use area,the
foundation plants to be located on-site and not eliminated.
So the purpose of moving the foundation plantings is because they are being used as automobile
garages,functioning with vehicular use area,so--and if that use changes then the deviation shouldn't apply.
So as long as you're using the use you've shown on the overhead,that fits the deviation request. But
the deviation doesn't have that limitation on it,so I just suggest that that needs to be added.
And I'm not sure we're going to complete today,so by the time we do finish this,you should have the
language solid and solidified by that time.
MR. MULHERE: I was thinking--I mean,I can finalize it before,but I was thinking something that
this deviation is limited in its application to the auto storage and self-storage use.
HEARING EXAMINER STRAIN: Well,auto storage and self storage aren't the same.
MR. MULHERE: They're--
HEARING EXAMINER STRAIN: Self-storage buildings are not vehicular use buildings,they're
100,000 square feet air conditioned mini storage facilities. I don't think we want to go there--
MR. MULHERE: That's fine. Then it's limited to the auto storage use.
HEARING EXAMINER STRAIN: Yeah.
MR. MULHERE: Okay. So that summarizes the changes.
Now,we've realized that another issue has come up. It's--I think there was some improper labeling
on the master plan. And staff brought this to our attention actually this morning,so I want to go over to the
visualizer and try to explain that and then we'll go from there.
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HEARING EXAMINER STRAIN: That did come up late yesterday,thanks to the institutional
knowledge of Heidi Ashton,our assistant county--one of the county attorneys. She remembered this was an
eminent domain case and--partially in years past,and that Livingston Road was actually an easement,not a
deeded right-of-way. As a result,the language that you see here that's highlighted would be problematic with
that--
MR. MULHERE: So I'll read that.
So the language that we had under C-1,front yard,was Livingston Road,25 feet measured from the
property line,exclusive of any easements.
The fact is that as it turns out,where we thought the property or what we labeled the property line may
not in fact actually be the property line. Because what we found out--or I found out this morning is that
Livingston Road is an easement. So it wasn't granted fee simple to the county,it's an easement.
And what we want to verify or make sure is that the location of the western boundary of that easement
is the same line that we have identified as a property line.
We would propose to change this language to read: Livingston Road,25 feet measured from the
western boundary of the Livingston Road easement,and then provide the OR book and page.
HEARING EXAMINER STRAIN: Subject to you verifying a survey that matches up to that point.
MR. MULHERE: Correct.
HEARING EXAMINER STRAIN: Because the last thing you need is to find out the Ian---because
if the easement shifts a foot or two and you're back again into this whole system again,we would close
this--we would end up closing this hearing today if that was not the case.
You also have text on pages-- Exhibits A and A-I that will need to be modified.
MR. MULHERE: Correct.
MS.ASHTON-CICKO: Mr.Chair, for the record,he's going to have to refer to the road
right-of-way,because there's a slope easement as well which is an additional 10 feet,which may overlap with
one of the easements.
MR. MULHERE: Maybe that--
MS.ASHTON-CICKO: You want to make sure that it's the road easement.
HEARING EXAMINER STRAIN: Thank you.
MR. STONE: I think as long as we reference the OR book and page,that should clear it up.
MR. MULHERE: Okay. That's the intent. We'll lay it out. We'll have our surveyors lay it out
between now and two weeks from now,make sure that we don't have any issues. Assuming we don't,we will
make those changes and provide them to you.
HEARING EXAMINER STRAIN: I believe the intent is there's a red line on the western side of
Livingston Road there,and that's the red line that you're trying to locate to make sure the measurement will
start from there based on the A-1 reflection graphic that has been provided.
MR. MULHERE: Correct. And I think was this one from the property appraiser?
HEARING EXAMINER STRAIN: Right. They're looking at a different line,a different location.
They are known to be off by several feet in different parts of the county. So that's the piece that I think you
may want to clear up.
MR. MULHERE: Yeah,we want to make sure. Pm thinking that's really defining the taxable
boundaries of the parcel. Because if this has really no use as it's part of the slope easement or a compensated
right-of-way easement,they may not be taxed. I don't know the answer to that. But we'll actually use the OR
book and page and the legal description there to locate the line.
HEARING EXAMINER STRAIN: Well,just as a point of clarification,if they are looking at a
taxable portion,your compensating right-of-way and your turn lane doesn't extend the full length of Livingston
Road out to Pine Ridge. And your property goes out further than--
MR. MULHERE: Yeah,that's--
HEARING EXAMINER STRAIN: --that turn lane is. So maybe--
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MR.MULHERE: That's something we'll--
HEARING EXAMINER STRAIN: --there's another piece that has—
MR.MULHERE: Yeah,that's something--yes,you're right,you're right.
Unless there are other questions that you have,sir,I think that adequately explains the proposed
changes,as well as the revisions that are necessary to address the easement versus property line issue.
HEARING EXAMINER STRAIN: Pm looking at my notes and the issues you've just pointed out as
needing correction were the ones that we had discussed and the ones I remember,the only ones I know of.
There is a clarification. I just want to make sure that it's understood that there is a provision in the
PUD that requires a developer to construct the pathway in the FP&L easements at eight or 10 foot wide--I
think it's 10 foot wide bike pathway.
That pathway's value and the construction of that value is equivalent within a few hundred dollars to
the easements that you're now providing that the county did not have before. And for that reason that
provision in the PUD is going to be rewritten so that it becomes the county's responsibility now to construct
that pathway.
I understand that and I've read the appraisals,they're fine,and I just wanted to make that clarification
very clear for the record.
MR.MULHERE: Thank you.
HEARING EXAMINER STRAIN: And other than that, I don't have anything else on this issue.
You've answered all my questions.
We'll turn to any public speakers. Thank you.
MR.MULHERE: Thank you.
HEARING EXAMINER STRAIN: Are there any members of the public here wishing to speak on
this item?
(No response.)
HEARING EXAMINER STRAIN: Is there a staff report?
MR.REISCHL: Thank you,Mr. Strain. Fred Reischl,Planning and Zoning.
Staff was supportive of the PDI prior to these changes and sees no reason why the changes would
make that--would alter that decision.
HEARING EXAMINER STRAIN: Okay,so staff is still in support.
MR.REISCHL: Correct.
HEARING EXAMINER STRAIN: I don't have any questions of staff;everything came out fairly
self-explanatory.
The corrections that the applicant has agreed to make will be provided between now and when we
finish this.
Normally what would happen,we would close the hearing today and I would have a decision within
30 days,usually within a week or 10 days. Because of the discrepancy or potential concern over that location
of Livingston Road,and you're going to confirm with your surveyors that the lines match up or if they don't
we'll have to readdress that,so we're going to continue this item for two weeks to resume on January 25th to
revolve that issue. You'll be one of the first people up.
Do you have any--do you agree to that continuance?
MR.MULHERE: Yes. That's great. I think we need to verify that line.
HEARING EXAMINER STRAIN: Any problems with staff on that?
MR.REISCHL: No problem.
HEARING EXAMINER STRAIN: Okay. Do any members of the public have any comments on
this action?
(No response.)
HEARING EXAMINER STRAIN: Just so--I don't have a calendar in front of me,I just want to
make sure our days are right. I actually continued something one time and we had to correct it before the
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meeting was over.
Yes, it is the 25th,that is the next meeting. Okay,so we're good.
With that, we will close this hearing and we'll continue it to the January--we won't close it,we'll just
continue to the January 25th meeting.
MR. MULHERE: Thank you, I appreciate everyone's help. Thank you.
HEARING EXAMINER STRAIN: Thank you.
That takes us to the--back to the agenda.
The other item,and I know some people came in during the discussion,the Pezzettino Di Cielo RPUD
was previously continued to January 25th as well.
There is no other business.
Any members of the public here that wish to comment on anything?
(No response.)
HEARING EXAMINER STRAIN: Okay,with that we'll adjourn this public hearing. Thank you.
********************
There being no further business for the good of the County,the meeting was adjourned by order of the
Hearing Examiner at 9:20 a.m.
COLL 'R C U11I'f�',. EARING EXAMINER
Y
�,l f v MARK STRAIN,Hearing Examiner
ATTEST:
DWIGHT E. BROCK,CLERK
These minutes approved by the Hearing Examiner on ( - 30--texts presented ior as
corrected .
Transcript prepared on behalf of
U.S. Legal Support, Inc.,by
Cherie'R.Nottingham,Court Reporter and Notary Public.
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