CCPC Minutes 05/05/2005 R
May 5, 2005
TRANSCRIPT OF THE MEETING OF THE COLLIER
COUNTY PLANNING COMMISSION
Naples, Florida, May 5, 2005
LET IT BE REMEMBERED, that the Collier County Planning
Commission in and for the County of Collier, having conducted
business herein, met on this date at 8:30 a.m. in REGULAR SESSION
in Building "F" of the Government Complex, East Naples, Florida,
with the following members present:
CHAIRMAN: Russell Budd
<- Kenneth Abernathy
Lindy Adelstein
Donna Reed Caron
Paul Midney
Robert Murray
Brad Schiffer
Mark Strain
Robert Vigliotti
ALSO PRESENT:
Ray Bellows, Zoning & Land Dev. Review
Joseph Schmitt, Community Dev. & Env. Services
Marjorie Student-Stirling, Assistant County Attorney
Jennifer Belpedio, Assistant County Attorney
Don Scott, Transportation Planning
Kay Deselem, Zoning & Land Dev. Review
-- Mike Bosi, Zoning & Land Dev. Review
Page 1
'"~--'~-'-'---'---"-'.-'"'--"'-'~-"'---"-
<-<
AGENDA
COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, MAY 5, 2005, IN THE
BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY
GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA:
NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY
ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN
ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10
MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN.
PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED
IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM
OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE,
WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL
BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF
SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN
PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF
THE RECORD AND WILL BE AVAILABLE FOR PRESENT A TION TO THE BOARD
OF COUNTY COMMISSIONERS IF APPLICABLE.
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL
NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND
THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE
PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND
.,-""- EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
NOTE: The public should be advised that a member of the Collier County Planning
Commission (Bob Murray) is also a member of the Community Character/Smart Growth
Advisory Committee. In this regard, matters coming before the Collier County Planning
Commission may come before the Community Character/Smart Growth Advisory
Committee from time to time.
1. PLEDGE OF ALLEGIANCE
2. ROLL CALL BY CLERK
3. ADDENDA TO THE AGENDA
4. PLANNING COMMISSION ABSENCES
5. APPROVAL OF MINUTES - Not Available At This Time
6. BCC REPORT-RECAPS - APRIL 12,2005, REGULAR MEETING
7. CHAIRMAN'S REPORT
8. ADVERTISED PUBLIC HEARINGS
A. Petition: BD-2005-AR-7155, Robert Osterhout represented by Quin Kurth of Turrell and Associates Inc., is
<- requesting a 25-foot boat dock extension to construct a dock and boat-lift protruding a total of 45 feet from
the property line into the waterway. The subject property is located at 267 3rd Street West, RepIat of Little
Hickory Shores, Unit 3, Lot 13, Block "G", in Section 5, Township 48 South, Range 25 East. (Coordinator:
Joyce Ernst)
1
-.-,', -
B. Petition: V A-2004-AR-6449, Ashley Doctors, property owner, represented by Richard D. Y ovanovich,
Esquire, of Goodlette, Coleman & Johnson, P.A., requesting a variance for a 6.2-foot encroachment into
the 20-foot required rear setback for a swimming pool and screen enclosure leavinl! a 13.8-foot rear
yard on a waterfront lot located at 149 Flamingo A venue. The property legal description is: Conners
Vanderbilt Beach Estates, Unit 3, Lot 25. (Coordinator: Mike Bosi)
C. Petition: V A-2004-AR-6970, Marilyn L. Ross, Trustee of the Marilyn L. Ross Trust, represented by R.
Bruce Anderson and Douglas A. Lewis of Roetzel & Andress, is requesting a variance for a to-foot
encroachment into the 20-foot required rear setback for a swimming pool and screen enclosure leavinl!
a to-foot rear yard on a waterfront lot, as set forth in LDC Section 4.02.03. The subject property is located
at 211 W. 3rd Street, in the Little Hickory Shores Subdivision, Unit I, Lot 15, Block C, in Section 5,
Township 48 South, Range 25 East, Bonita Springs, Florida. (Coordinator: Mike Bosi)
D. Petition: PE-2005-AR-7123, Michael Miceli, owner, requesting a parking exemption to allow off-site
parking on a lot that is not commercially zoned, and to allow two or more permitted uses to utilize the same
or a portion of the same required parking, pursuant to the proposed Subsection 4.05.02.K.3. The subject 0.99-
acre property is located at 4600 Gulf Stream Drive, in Section 18, Township 50 South, Range 26 East,
Collier County, Florida. (Coordinator: Kay Deselem)
E. Petition: PUDZ-2004-AR-6192, Toll Brothers, Inc., represented by Christopher Hagan, of Johnson
Engineering, Inc. and Richard Y ovanovich, of Goodlette, Coleman & Johnson, requesting a rezone from the
Rural Agriculture (A) and Community Facility (CF) zoning districts to the Residential Planned Unit
Development (RPUD) zoning district for a project to be known as the Cook Property PUD. A total of 160
single- or multi-family units or some combination of both are proposed on 40.48 acres. The property is
located at 7700 and 7792 Davis Boulevard, approximately 1,700 feet east of Santa Barbara Boulevard in
Section 9, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Kay Deselem)
F. Petition: PUDZ-2003-AR-3588, Frank Clesen & Sons, Inc., represented by William L. Hoover, of Hoover
Planning and Development, Inc., requesting a rezone from Planned Unit Development (PUD) to PUD to
amend the Clesen PUD, pursuant to the sunsetting provisions of the LDC, to update the PUD document in
compliance with the current LDC PUD requirements, for property located on the north side of Pine Ridge
Road, approximately 1,000 feet east of the Whippoorwill Lane and Pine Ridge Road intersection, in
Section 7, Township 49 South, Range 26 East, Collier County Florida. This property consists of 4.33:J:: acres.
(Coordinator: Kay Deselem)
9. OLD BUSINESS
10. NEW BUSINESS
11. PUBLIC COMMENT ITEM
12. DISCUSSION OF ADDENDA
13. ADJOURN
05-05-05/CCPC Agenda/RB/sp
2
May 5, 2005
-
CHAIRMAN BUDD: Okay, we'll call this meeting of the
Planning Commission to order.
Please rise and join me with the pledge of allegiance.
(Pledge of Allegiance was recited in unison.)
CHAIRMAN BUDD: We will have our roll call.
Ms. Caron?
COMMISSIONER CARON: Here.
CHAIRMAN BUDD: Mr. Vigliotti?
COMMISSIONER VIGLIOTTI: Here.
CHAIRMAN BUDD: Mr. Abernathy?
COMMISSIONER ABERNATHY: Here.
CHAIRMAN BUDD: Mr. Strain?
COMMISSIONER STRAIN: Here.
CHAIRMAN BUDD: Budd is here.
Mr. Adelstein?
-
COMMISSIONER ADELSTEIN: Here.
CHAIRMAN BUDD: Mr. Midney is not here.
Mr. Schiffer?
COMMISSIONER SCHIFFER: Here.
CHAIRMAN BUDD: Mr. Murray?
COMMISSIONER MURRAY: Here.
CHAIRMAN BUDD: Addenda to the agenda. I understand that
Item B, which is Petition V A-2004-AR-6449, Ashley Doctors,
property owner, requesting a 6.2 foot encroachment and a 20-foot rear
yard setback, that item has been continued.
Also, Item F, that is Petition PUDZ-2003-AR-3588, Frank Clesen
and Sons, requesting a rezone from PUD to PUD, has also been
continued.
Are there any other addenda to the agenda?
MR. BELLOWS: No other changes other than on 8(F), it's being
<- rescheduled or continued to June the 2nd.
COMMISSIONER ABERNATHY: Which one?
Page 2
,-"-- -----
May 5, 2005
CHAIRMAN BUDD: F.
MR. BELLOWS: F.
CHAIRMAN BUDD: The second item is continued to a date
certain, June 2nd.
COMMISSIONER ABERNATHY: I thought they were waiting
until you got off of the Planning Commission or something.
CHAIRMAN BUDD: I could help them out.
Okay, any other addenda to the agenda? Is that accurate?
MR. BELLOWS: Both of them on June 2nd.
CHAIRMAN BUDD: Okay, both items continued to June 2nd.
If there's no further addenda, do we have a motion to --
COMMISSIONER ADELSTEIN: So moved.
CHAIRMAN BUDD: Okay. We have a motion by Mr.
Adelstein.
Second?
COMMISSIONER SCHIFFER: I'll second it.
CHAIRMAN BUDD: Second by Mr. Schiffer.
Discussion?
(N 0 response.)
CHAIRMAN BUDD: There being none, all those in favor,
signify by saying aye.
COMMISSIONER STRAIN: Aye.
COMMISSIONER ABERNATHY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER SCHIFFER: Aye.
CHAIRMAN BUDD: Aye.
Those opposed?
(No response.)
"".....,-, CHAIRMAN BUDD: Motion carries. Our agenda is modified.
Page 3
._---,--. "-""'-
May 5, 2005
Planning Commission absences. Any anticipated absences in our
near future?
COMMISSIONER VIGLIOTTI: I'll miss the next meeting.
CHAIRMAN BUDD: Okay, Mr. Vigliotti will miss the next
meeting. No others?
(No response.)
CHAIRMAN BUDD: Approval of minutes. They're not
available at this time.
Ray, do you have a Board of County Commissioners recap?
MR. BELLOWS: Yes. The board approved the conditional use
for the earth mining, earth removal for the old Hardy property. That
was approved by a 5-0 vote.
Conditional use for Boca Bargoons --
MR. SCHMITT: Just to correct the record, though, that that was
approved -- it was approved, the conditional use, to the State of
,~- Florida, not to Mr. Hardy. The property now belongs to the State of
Florida. And the conditional use was only for the removal of
Agrisource's --
CHAIRMAN BUDD: The stockpiled material.
MR. SCHMITT: -- stockpile that was actually on site. Yeah, the
aggregate and stockpile that was on site. Because that legally
belonged to them. So that's what the conditional use was for. Nothing
more. No enlarging of any of the lakes or any activity.
Basically Agrisource is out of business. The conditional use was
nothing more than it allowed for hauling off site.
COMMISSIONER STRAIN: Who's collecting the money from
that hauling off -- from that fill that's being removed? Is it the state's
money now?
MR. SCHMITT: No. No, that --
COMMISSIONER STRAIN: So the state owns the --
MR. SCHMITT: -- that fill that was removed and then
--. stockpiled belonged to Agrisource. They paid Mr. Hardy for that fill.
Page 4
~_m_ ,,-
May 5, 2005
-'-'- That fill was legally Agrisource's fill.
COMMISSIONER STRAIN: Okay. But the permission to -- the
state owns the property, so the conditional use was provided to the
state, but Agrisource is benefiting financially from that arrangement.
MR. SCHMITT: I have no idea.
COMMISSIONER STRAIN: Because the taxpayers put out 4.9
million. They're not getting any of that back then, are they?
MR. SCHMITT: I don't know. That's something you can deal
with the state. Ask those questions with the state.
CHAIRMAN BUDD: Mr. Bosi, you have some information on
that?
MR. BOSI: Good morning, commission members.
Yeah, just -- no, I don't have the specifics, though, Mr. Strain,
that probably would satiate your request, but it was part -- Agrisource
was part of the named defendant within a settlement agreement. But
where the money's going and how that's going to be allocated, it
wasn't specified. It was just really -- it was just really just for the
overall public benefit to, you know, to get the existing fill off the site
so it could be incorporated within the overall CERP program.
COMMISSIONER STRAIN: I certainly will disagree with some
of your reasoning, but thank you for the clarification.
CHAIRMAN BUDD: Anything on the board report?
MR. BELLOWS: Yes. The conditional use for Boca Bargoons
was approved 5-0. And the PUD amendment for Warm Springs was
approved by a 4-1 vote, with the limitation of the density to 3.78 units
per acre.
CHAIRMAN BUDD: Okay. All right.
Before we move into the advertised public hearings, just
clarification and recognition for board members, when addressing Ms.
Student, it would be Ms. Student-Stirling now. She's recently married.
And congratulations on that, by the way.
MS. STUDENT-STIRLING: Thank you very much.
Page 5
May 5, 2005
<- CHAIRMAN BUDD: And also just like to announce that
individual speakers will be limited to five minutes on any item.
Individuals selected to speak on behalf of a group or organization can
receive up to 10 minutes at the discretion of the Chair.
We'll hear our first item; that's Petition BD-2005-AR-7155, Mr.
Osterhout, requesting a 25- foot boat dock extension.
All those wishing to present testimony on this item, please stand,
raise your right hand to be sworn in.
(All speakers were duly sworn.)
CHAIRMAN BUDD: Thank you.
Any disclosures by planning commissioners on this item?
(N 0 response.)
CHAIRMAN BUDD: There are none.
If we could hear from the petitioner, please.
MR. KURTH: Good morning. For the record, Quin Kurth of
,,-. Turrell and Associates, representing Mr. Osterhout.
This morning the petitioner is requesting a 25-foot dock
extension from the allowed 20 feet. The overall protrusion will
consist of 45 feet into a waterway that is approximately 380 feet.
If I may, the proposed dock has been designed to facilitate the
mooring of a 30- foot vessel. This protrusion is necessary due to the
limited shoreline, water depths in existing shoreline vegetation.
As you can see from this aerial, the proposed dock is congruent
with docks within the area and does not impact navigation.
Any questions?
CHAIRMAN BUDD: Questions of the petitioner?
(No response.)
CHAIRMAN BUDD: None at this time.
MR. KURTH: Thank you.
CHAIRMAN BUDD: Ifwe could hear from the staff, please.
MS. ERNST: Good morning. For the record, I'm Joyce Ernst
~ with Zoning and Land Development Review.
Page 6
^-' -.---
May 5, 2005
,-...... And this dock is located in Little Hickory Shores, which is --
they're all boat dock lots, and this is one of many other ones that have
been approved for this area.
I'm going to show you this aerial. You can see I've noted where
the subject dock is. Some docks up there have received a variance to
build right up to the riparian line.
As you can see, the dock to the east, it extends out about 48 feet,
which is more than what this request is for. This was granted, the
setback, right to the riparian line. The dock to -- and the lot to the
west is vacant. However, that dock was also granted, the zero setback
to the riparian line. So when they choose to build, they can rebuild
right to the riparian line.
However, this dock was not among those that were granted a
variance, so it needs to comply with a seven and a half foot setback on
each side. Very similar facilities have been granted to other docks in
this area.
I haven't received any comments regarding this, for it or against
it. It complies with all the criteria as outlined in the Land
Development Code and, therefore, staff recommends approval.
Does anyone have any questions?
CHAIRMAN BUDD: Questions for staff? Mr. Schiffer?
COMMISSIONER SCHIFFER: Where do people park when
they bring the boat in? It looks like maybe you could get one car on
the lot that's platted.
MS. ERNST: Typically they just pull up. There's, you know, a
small shoreline there, and they'll pull up on land and park right there.
I know at one time when I was reading this old variance, when
they first started this, they used to make them get a right-of-way
permit. I don't know, when I went up there I did not see a lot of them.
But you do see where they can pull right up on land.
In fact, I understand that some of them recently have been storing
._'. trailers there, and I don't know if that's permitted or not. But they've
Page 7
.,---n... -'-~-
May 5, 2005
-', been doing that as well. But yeah, but that's what they do, they just
pull up and park right on the property there.
COMMISSIONER SCHIFFER: But, I mean, you can't (sic) fit
only one car on the property, so they're parking in the right-of-way is
what you're saying. When you move the arrow, that was the
right-of-way, I guess, or --
MR. SCHMITT: Mr. Schiffer, for the record, there was enough
space on each lot for two cars actually to park. And most of the lots
there have space for two cars.
COMMISSIONER SCHIFFER: Right. But this one seems
small. I don't think it does.
MS. ERNST: I think typically all of them are about 30 feet wide,
and that's what this is.
COMMISSIONER STRAIN: And Brad, I visited the site and I
can verify what Joe said, there is adequate parking on those sites. I
-- made sure of that when I went up and looked at it.
COMMISSIONER SCHIFFER: For two vehicles?
COMMISSIONER STRAIN: I didn't measure it. But there was
parking areas. If there's a slot 30 feet wide and you need 10 feet for a
parking space, so yeah, you could easily get --
COMMISSIONER SCHIFFER: But the shoreline is probably 10
feet off that 30 feet. That's my concern.
COMMISSIONER STRAIN: Well, I didn't see a problem when
I was up there looking at it, but --
COMMISSIONER SCHIFFER: And the question is, the reason
I'm asking --
COMMISSIONER ABERNATHY: You parked next to the
Navigator?
COMMISSIONER STRAIN: My big truck, yes.
COMMISSIONER SCHIFFER: The question is they're
requesting a 30- foot boat, so there obviously would be more than
--- probably one car coming to use that boat, so -- but if everybody's
Page 8
_._-,---"- ---
May 5, 2005
happy, I'll back away.
MS. ERNST: I know the day I was up there I didn't see -- of
course no one was -- I didn't see any cars parked and anyone out and
about. I imagine what he could do is if there's not enough room to
park, they could pick up whoever was going to come with them on the
boat. If it's for his own use, which I don't know, maybe we need to
talk to the applicant to see how he proposes to use it.
CHAIRMAN BUDD: Any further questions?
(N 0 response.)
CHAIRMAN BUDD: There are none.
Are there any registered public speakers?
MR. BELLOWS: None registered.
CHAIRMAN BUDD: Okay, with that, we'll close the public
hearing. Do we have a motion on this item?
COMMISSIONER ADELSTEIN: I move we approve
BD-2005-AR-7155, subject to staff recommendations.
COMMISSIONER MURRAY: Second.
CHAIRMAN BUDD: Motion by Adelstein, second by Mr.
Murray.
Discussion?
(No response.)
CHAIRMAN BUDD: There is none.
All those in favor of the motion, signify by saying aye.
COMMISSIONER ABERNATHY: Aye.
COMMISSIONER STRAIN: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRA Y: Aye.
CHAIRMAN BUDD: Aye.
COMMISSIONER SCHIFFER: Aye.
CHAIRMAN BUDD: Those opposed?
Page 9
^--,'----".,," -
May 5, 2005
(No response.)
CHAIRMAN BUDD: Motion carries unanimously.
Next item. Item B, as we already noted, is continued.
Item C is our next item of business. That is Petition
V A-2004-AR-6970, a variance for IO-foot encroachment into the
20- foot required set yard setback -- required rear yard setback.
All those wishing to present testimony on this item, please stand,
raise your right hand to be sworn in.
(Speakers were duly sworn.)
CHAIRMAN BUDD: Any disclosures by planning
commissioners?
(N 0 response.)
CHAIRMAN BUDD: There are none.
If we could hear from the petitioner, please.
MR. LEWIS: Good morning. My name is Doug Lewis. I'm an
attorney with the law firm of Roetzel and Andress. We represent the
applicant, Marilyn Ross as trustee, the current property owner.
And request for an after-the-fact variance for an I8-inch
encroachment of the swimming pool deck which is at 10.8 feet NVG
(sic), not N.2 (sic) feet, as permitted under the Land Development
Code, Section 4.02.03.
The provisions of the Land Development Code that we are
seeking a variance for today, put up on the screen, it was noticed as a
variance for a 10- foot encroachment into the rear yard setback.
The provision that you're looking at is the requirement in the
Land Development Code relating to the rear yard setback for
waterfront lots.
Item four shows the IO-foot rear yard setback. And there's a note
3, a footnote, which footnote 3 reads, 20 feet where swimming pool
deck exceeds a four foot in height above the top of the seawall or top
of the bank, except Marco Island and the Isle of Capri, which may
construct a maximum of seven feet above the seawall, the maximum
Page 10
-~- - ---
May 5, 2005
-- of four feet of stem wall exposure with a rear setback of 10 feet.
The subject property is located at 211 West Third Street in the
Little Hickory Farm (sic) Shore subdivision.
On September 16th, 2004, we submitted the variance petition.
We've sent out the required notices to the abutting landowners, and
staff has deemed the application to be complete.
Further, staff, in the staff report, is recommending the approval of
this variance. Section 9.04.00 of the Land Development Code grants
the board of zoning appeals the authority to grant variances, and the
planning council here today advises the board of zoning appeals in its
decision. And we're here today to ask for your support for our client's
application, based on the following factors as set out under Section
9.04.03 of the Land Development Code.
COMMISSIONER STRAIN: Before you take what you have on
the screen off, is this the code that was in place at the time your
applicant or your -- you applied for the building permit?
MR. LEWIS: More or less. There was a revision of the Land
Development Code which moved certain sections to new locations,
but in essence this is exactly the same language. Staff can comment on
that as well.
MR. BELLOWS: That's correct.
MR. LEWIS: The change -- the initial change that we see here
today was enacted in 1996. And prior to that, this vertical spatial
separation, this four-foot separation between the top of the pool deck
and the top of the seawall did not exist. And what you see today is
what's currently in the code today.
The first criteria is whether or not there are any special
conditions or circumstances which exist that are peculiar -- that are
particular to the location of the property.
The property is located in a flood zone and the minimum floor
elevation of the residence must be at least 11.1 feet above the mean
- water level in order to qualify for flood insurance.
Page 11
~,-_... ~-,-
May 5, 2005
Further, the top of the grade -- top of the seawall is 5.2 NGVD.
As such, the pool deck is about 4.4 inches (sic) above the lot grade at
the stem wall, and the sloping rear yard visually ameliorates the
18-inch elevation difference between the swimming pool deck and the
top of the seawall.
And I have a picture for you that kind of illustrates. As you can
see by the photograph, the swimming pool deck is about 4.4 feet
above the lot grade at the stem wall. It slopes. And the top of the
seawall is 5.2 feet NGVD. So in essence we're talking about 18 inches
from the top of the seawall to the top of the pool deck.
Are there any -- and so as a result, the conditions that resulted in
the current elevation of the pool deck arose out of the need to satisfy
the minimum floor elevation requirements of 11.1 feet. In essence, the
property seawall as the measure and the need to satisfy the elevation
requirements necessitated in the pool deck being put at an elevation
which was essentially 18 inches higher than the vertical spatial
requirement provides for here.
The second factor: Are there any special conditions or
circumstances that do not result from the action of the applicant, any
preexisting conditions, et cetera.
Yes. When the applicant purchased the property, the preexisting
elevation, also the current -- the elevation of the seawall were things
that were inherent in the purchase of the property. If you look
throughout the county, the seawalls in the county are not uniform.
However, the standard in the Land Development Code measures the
setback based on this non-uniform seawall height.
When they purchased the property, they needed to increase the
elevation of the property 11.1 feet above the canal mean water level in
order to qualify for flood insurance; therefore, they had to raise the
elevation of the property. In essence, they were left with the option of
either having a essentially step down onto their rear yard pool deck or
not constructing the pool deck.
Page 12
----." .~,.'-~
May 5, 2005
The staff report notes that the -- there was essentially a mutual
mistake between both the county staff and the builder who constructed
the home. There was no knowledge or -- of a violation at the time on
behalf of the county or the applicant at the time that the pool deck was
constructed. It was, in essence, a mutual mistake. Our client bought
the property subsequently and had no knowledge at the time of the
purchase of the issue relating to the height of the pool deck.
In terms of hardship, under the third criteria, the applicant will
either have to endure the hardship of raising the seawall adjacent to
their home by essentially 18 inches to comply.
I have a photograph. The photograph that you're looking at
comes from the Vanderbilt Lagoon setback study that was prepared by
the Collier County Code Enforcement. And this is a picture of the
currently existing permanent property. And you can see the jog in the
seawall. The applicant would either have to raise the seawall adjacent
to their home by 18 inches in order to comply with the Land
Development --
THE COURT REPORTER: Would you please slow down.
MR. LEWIS: Sure.
The applicant will either have to endure the hardship of raising
the seawall adjacent to their home by 18 inches in order to comply
with the Land Development Code or remove the pool and pool deck
and/or lower the elevation of the pool deck. Either result would cause
a substantial hardship, economic loss. Additionally, if the pool deck
were lowered, it would be lowered to the minimum flood elevation
and subject the pool and deck area to increased risk of flooding, create
safety concerns given the step down into the pool decking from the
residence.
Item four: The -- will the variance, if granted, be a minimum
variance that will make possible the reasonable use of the land?
Yes, the requested variance from the requirements of the section
- of the Land Development Code is a minimum variance that will allow
Page 13
...~-,..-~_. ..--
May 5, 2005
- the applicant to continue to enjoy the use of their home. By granting
the variance will also promote the standards of health and safety and
welfare because the elevation of the deck will be at the same first-floor
residence, thus creating -- reducing the risk of a slip or fall -- it really
doesn't make a lot of sense to have that step down -- and potentially
adverse consequences to the structure of the seawall, if the seawall
needs to be raised by essentially 18 inches to comply with the Code.
Factor five: Will the variance confer on the petitioner any
special privilege?
No, granting of the variance will not confer any special privilege
denied to other properties in the zoning district. If you'd look at other
properties, you can see that they've been able to raise their seawall.
The real inherent issue with this provision of the Land
Development Code is this four-foot vertical separation is tied to a
standard. It's not uniform in the county. The seawalls are not the
same.
Will the granting of the variance be in harmony with the intent
and purpose of the zoning code?
Yes. The intent and purpose of the zoning code is met because
the subject property would comply with the zoning code if the pool
deck were lowered by a mere 18 inches. Granting the variance would
also not be injurious to the neighborhood, detrimental to the public
welfare. Raising the seawall by 18 inches would -- could potentially
jeopardize the structure over time of the seawall.
To date I'm not aware of any -- we've sent out notices -- any
objections by any of the abutting landowners.
As you can see from the photograph, and I'll put that back up, the
landscaping that's been done to kind of ameliorate the visual effect of
the separation -- or the size of the stem wall.
For these reasons, our clients, the petitioner, request favorable
recommendation for a petition.
~...- Open to any questions.
Page 14
--~." -.,---
May 5, 2005
CHAIRMAN BUDD: Questions of the applicant? Mr. Strain?
COMMISSIONER STRAIN: I -- you went into detail on your
reasoning why this is okay, so I guess I'll have to go into detail as to
asking you why you think that way.
The first thing you brought up was that it's a unique piece of
property in some regard because of the elevation of the seawall versus
the flood elevation requirement for the property.
My question is: Are there any seawalls in Collier County that are
not within flood zone? And if there are, there's no uniqueness then to
this particular piece of property.
MR. LEWIS: My comment is not in relation to the standard
elevation. That's inherent in any property. My comment is the
uniqueness in this property was the height of the seawall in relation to
the minimum flood elevation. There is not uniformity in the county,
as that picture -- one of the picture -- one of the pictures I put up
--., earlier.
COMMISSIONER STRAIN: Well, the picture you put up
earlier was obviously done to try to offset the -- what someone found
out about this code. Standard, though, the 5.2 or whatever your
current seawall is at, do you have any documentation or surveys that
show that there were -- seawalls are inconsistent to that height
throughout the county or how close to that height they are? Are they
as radical as that picture you're showing? Is that a general consensus,
that you're going to find that radical of exposure in different places in
the county?
MR. LEWIS: I can't make that representation today. What I can
tell you is that is permitted under the current Land Development Code,
what you see there.
COMMISSIONER STRAIN: Did--
COMMISSIONER SCHIFFER: Can we discuss that?
CHAIRMAN BUDD: Sure.
,,--~
COMMISSIONER SCHIFFER: That isn't raising the seawall,
Page 15
._-".,"- -~'-
May 5, 2005
,,- that's a wall on top of the seawall. I mean, there is some confusion as
does that meet the system of the code, but that is not raising the
seawall. We have an ordinance of what a seawall is. That is not a
seawall. That's a wall or a planter on top of a seawall.
MR. LEWIS: Well, we would be talking about putting a cap on
the seawall. In terms of interpretation of how staff would look at that,
I'd defer to their judgment in terms of how they would do that.
Your second point was in relation to the limitations on the height
of the seawall under the Land Development Code? I'm not aware of
any provision in the Land Development Code that would limit the
height of the seawall.
COMMISSIONER SCHIFFER: No, I mean, the developer,
when he's building that area doing the fill, he establishes the seawall
or the other reference in there, the top of the bank, which would be the
other thing you'd measure from.
,- MR. LEWIS: Sure. But the point I'm trying to articulate here is
that there is no requirement in the Land Development Code that
regulates in a uniform way the height of the seawall. Compound that
with internally in the Land Development Code you have places in
Marco Island that have a seven-foot spatial separation between the top
of the seawall, and the Isles of Capris as well, and the top of the pool
deck. So there's inconsistency throughout the county in relation to the
height of the seawall. That's the only point I'm trying to make.
COMMISSIONER SCHIFFER: Okay. I'm sorry, Mark.
COMMISSIONER STRAIN: No, that's okay. I've got six
questions, so if you have more, just chime in.
COMMISSIONER SCHIFFER: No, I was just wondered why
we were on that.
COMMISSIONER STRAIN: No, I mean, join in, because I'm
trying to go through the six he brought up.
When your applicant or your client bought the property, it was
bare property, no house on it?
Page 16
_~w.., _M~_
May 5, 2005
MR. LEWIS: My understanding is they purchased it from the
builder.
COMMISSIONER STRAIN: Okay. FEMA lines had been
established for a long period of time.
MR. LEWIS: I'll defer.
MR. ROSS: If you wish the correct answer, I can tell you.
MR. SCHMITT: You need to step up to the mic, please.
CHAIRMAN BUDD: Yes, sir, you need to come up to the mic
and identify yourself.
Were you sworn in, sir?
MR. ROSS: No, I was not.
CHAIRMAN BUDD: Well, we can solve that, too.
(Speaker was duly sworn.)
CHAIRMAN BUDD: Please identify yourself.
MR. ROSS: My name is Charles Ross.
CHAIRMAN BUDD: You can move over by the microphone,
please.
MR. ROSS: My name is Charles Ross, I'm the husband of
Marilyn Ross, the property's in a trust in.
Forgive me, I didn't realize I may have anything relevant to add,
or I would have asked to be part of it to begin with.
The property was vacant when we purchased it, and then we
arranged with a builder to build a home on it.
CHAIRMAN BUDD: All right, thank you, sir.
COMMISSIONER STRAIN: The builder -- the code, by your
own testimony earlier, was the same today as -- I mean then as it was
today, in essence. So the builder had the code and the footnote was
pretty clear in that code as you showed it to us today. Anybody
looking at that 10- foot would see the three and realize they've got to
look at that other part of the code.
And I'm just wondering why there's something inherent to this
property then that's different in regards to the implication of the code
Page 1 7
--.. --
May 5, 2005
-, when it's as clear as you showed it to --
MR. LEWIS: Well, I think the staff report makes it very clear
that this was essentially a mutual mistake. I mean, if it was so clear,
staff wasn't fully aware of it.
It is -- you can see it is fairly technical. If you look, there is a
footnote; it's on the next page. In the current code, you have to flip
the page, read the footnote. It says 10 feet, and then you have a little
script on top that says three, and you have to flip the page and review
it.
I'd just point to your own staff report, that they indicated it's a
mutual mistake and even staff missed it as well. I don't think that it's a
case where people intentionally put the seawall 18 -- or the pool
decking 18 inches higher than what would be required. That's my --
COMMISSIONER ADELSTEIN: Well, the point is, the builder
is the builder. It's his responsibility to do this. It's not a matter where
whether he did or didn't do it. The statement of fact that gee, I didn't
know we had to do it is not an answer. The code says this is the way
it's supposed to be. And if we're going to let ignorance be okay to do
why we didn't get it done or we didn't know how to get it done, it
would be no reason for any varia -- everything could be a variance.
In this situation, as far as I can see, the builder has that
responsibility. And if the only way or the best way to do it is to raise
the seawall, then it's his responsibility to make the seawall go up and
get the thing done, not the idea of letting well, because he didn't know,
we're going to let him get away with this and this could keep going on
and on and on.
MR. LEWIS: No, and I appreciate your comment. I mean, I
understand that there -- the code is what it is. My only point being is
that essentially this was essentially a mutual mistake made by the
builder -- and you're correct, people make mistakes -- 18 inches higher
than it's required to be.
That isn't the only factor that we would look at for purposes of
Page 18
,e_ "--"-
May 5, 2005
<-- whether or not we would grant a variance.
And again, the key factor here is that they were trying to comply
with the minimum flood elevation in relation to the property, and that
resulted in a house being put at a height that you wouldn't be able to
put a pool deck without a seamless step-out into the deck area.
COMMISSIONER ADELSTEIN: That's the real problem is the
step-out. It's not the house. It's the refusal to accept a few steps down
to the pool.
MR. LEWIS: Well, again, if this were an intentional -- this is
again a mutual mistake. I think if these questions would have been
addressed at the time of construction -- at this point we're left with a
property the way it is. And we have potentially an option where we're
left with raising the -- capping the seawall.
COMMISSIONER ABERNATHY: Keeping the pool deck level
with the house seems to be me to be sort of a volitional matter. You
don't do it -- it wasn't a coincidence that it's --
MR. LEWIS: That was a conscious choice. My point being that
there was a mutual mistake at the time of the construction as to the
requirement that there be a four-foot spatial separation, and the failure
to meet that standard would result in a 20- foot rear yard setback.
CHAIRMAN BUDD: Mr. Strain, you had other questions?
COMMISSIONER STRAIN: Yeah. And it kind of goes into
what we just got into. You had indicated that in order to have
reasonable use of the land, that they wanted to have the pool deck
level with the house so they wouldn't have to have steps.
Are you aware that there are steps to the garage?
MR. LEWIS: Again--
COMMISSIONER STRAIN: I mean, are you aware that there
are?
MR. LEWIS: I was not aware that there are --
COMMISSIONER STRAIN: Well, there has to be, because the
garage is at 7.95 and the house is at 11.1. Code wouldn't allow to you
Page 19
-_.~ . -~---
May 5, 2005
,_.., walk up that distance without steps. So they can have steps in the
garage and they got steps in their front porch, but they don't have --
they don't want steps in their pool. And now that makes the pool out
of conformance with the code.
MR. LEWIS: Well, I think the issue here is a question of at what
point is this decision being made. We're now as an after-the- fact
looking backwards and scratching our heads and looking at our
options. Do we require that the pool deck be removed and lowered a
mere 18 inches to satisfy this four-foot standard, which is tied to an
elevation which -- which again, this four-foot standard is tied to a
seawall. And the seawalls are not uniform here in Collier County.
I understand your point that if that decision were made at the
time of construction that would be material, but again, we're looking
backwards. He have -- we have the deck where it is now, and we're
faced with the option of either lowering -- moving it and lowering it
-- 18 inches to satisfy this standard, or we raise the seawall by 18 inches,
and then you're left with something that looks like this.
COMMISSIONER STRAIN: Well, seeing as your applicant
bought the property bare and built, designed and contracted to have
the house done, that's a little different than if they had gone in and
bought the property with the house sitting there and unbeknowingly
(sic) inherited something from the previous owner they couldn't
control. There was control in this. There was -- there could have been
due diligence. Your firm could have been hired at an earlier stage to
check things out. That kind of stuff isn't unheard of, especially when
you build mega homes in existing neighborhoods.
You said there's no special privilege necessarily being granted in
this house. Does that mean all the houses in the neighborhood are at --
are under the same conditions as this house in the rear lots? Are all
their decks that high and that close to the seawall? Maybe a surveyor
something that indicates --
MR. LEWIS: Again, I'm not able to make that representation.
Page 20
._--,.~ "."--
May 5, 2005
.- My only point being is that in essence the applicant inherited property
that put a seawall at the level -- when you contrast that to the FEMA
flood requirements, puts him in a position where he -- I would need to
essentially raise that seawall in order to meet this arbitrary four-foot
require -- spatial requirement.
COMMISSIONER STRAIN: Or step down to his pool deck.
MR. LEWIS: Or alternatively would be to remove -- you know,
incur the economic hardship and remove it and step down.
COMMISSIONER STRAIN: I think the issue of harmony in
regards to how the seawall or the relationship of the rear lot retaining
wall for the pool to the seawall is made is extending the exposure of
the wall surface that's there. I don't see that being any better with the
picture of what we have in front of us. So I think your exposed wall is
what the objective was. If you're going to have a lot of exposed wall,
they want it back from the seawall so it didn't look as solid. That may
have been the intent.
.-
MR. LEWIS: Yeah, I think the pictures demonstrate the
vegetation, the trees that are there that -- I have another shot that is a
good shot from across the canal.
And it -- you know, obviously it's a judgment call, but it does -- it
is fairly -- fairly well landscaped in the rear yard.
And the other thing to think about is the slope. There's
essentially a 4.4 foot separation, I think to your point, the size of the --
the height of the stem wall.
The survey that's attached to our application shows that you're
looking at about 4.4 feet from the top of the pool deck to the surface.
Where the soil is, there's a slope that causes the water to run off.
So really, in that sense, to your question, we're talking now about
four inches.
COMMISSIONER STRAIN: Okay, thank you. I appreciate it.
CHAIRMAN BUDD: Mr. Adelstein?
COMMISSIONER ADELSTEIN: You keep saying economic
Page 21
--~-'- -,,-
May 5, 2005
-. hardship. I assume the builder is still a builder?
MR. LEWIS: Correct.
COMMISSIONER ADELSTEIN: Any economic cost is going
to be his responsibility, and definitely not the owner's. If we're talking
about an 18- inch wall going up -- first of all, I have no idea what that
would cost, but I'm quite sure that the builder will be responsible for
putting it up, if that's what's required, because it was his responsibility
to do it right the first time.
I don't find that economic hardship being your client's hardship.
MR. LEWIS: Well, that would be a question that would have to
be answered later.
But the point there is that there is a real economic cost to the
decision that would be made, whether it's the cost associated with
raising the seawall or whether it's the cost related to reducing the pool
deck by 18 inches. The point being is that there is a real cost.
COMMISSIONER ADELSTEIN: Yeah, there is a cost.
And the other thing, as I was saying before, to not have done it
properly and then okay it is going to -- could make all of these things
vane, because anybody who said well, I didn't really know that so
we'll justify it and let it go on like it is would be a very silly way to
run our business.
MR. LEWIS: I don't know if this helps. I spoke with a local
contrat -- seawall contractor here in town and he was not aware of the
four-foot spatial separation. I don't have his testimony here today.
But the reason why I wanted to illustrate, put up the provision in
the code, it is fairly -- it's not that clear. I mean, the rear yard, it states
10 feet, and I understand lawyers look at that and we understand very
clearly that there's a footnote. But if you look at the staff report, you
know, staff -- it was a mutual mistake. Staff didn't catch it at the time.
And the other factor is that at the time the -- I think from a
procedural standpoint, I think we're all clear that we would like to
-- avoid these kinds of issues from happening at the time; you know, that
Page 22
-- <--
May 5, 2005
-, the home is built properly in the first place. But there's no
requirement that a survey be done or an elevation survey be done
currently at the time the building permits are pulled.
I think those are things that would be helpful when you're dealing
with a public that's working -- builders are doing the best they can do.
But that footnote is on the second page and it is fairly --
MR. SCHMITT: I need to make sure and correct the record here.
There is a requirement for a spot survey at placement of slab. Within
10 days of placements of slab, the builder is required to submit a spot
survey to attest that the survey meets all criteria in the Land
Development Code, the placement of the slab itself. So there is a
requirement.
MR. LEWIS: But I think that's a horizontal-- my understanding
is that's not a vertical requirement.
MR. SCHMITT: It's to meet all the setback requirements, both
- horizontal and vertical. It's a horizontal requirement, but it does not
negate the builder from meeting the vertical requirement.
MR. LEWIS: Well, there's some confusion out there.
COMMISSIONER STRAIN: Well, I think the problem might be
in that, the builder --
MR. SCHMITT: Let me just correct the record to understand,
this is -- as you all know, this is not the first one you've seen like this.
There's been --
COMMISSIONER SCHIFFER: Nor the last.
MR. SCHMITT: As history -- well, I would hope it's the last.
F or the last two years, we've been requiring every builder who builds
along a seawall has to come in with both a elevation representation, as
well as a setback locational depiction of the house as well.
This is back when we were not checking for the four-foot rise
versus the 10 and 20- foot setback. We now check every -- every
builder who comes in goes through that type of review. This is one
._, that was not. We corrected the problem over two years ago. This is
Page 23
--< -----
May 5, 2005
~" that was the builder came in, basically submitted the plans. We
checked for the setbacks. It met the setbacks according to the code,
but it was a failure on staffs part to ensure that it did not fall into that
criteria where it was four-foot elevation required at 20- foot setback.
That's all been corrected.
But I want to make sure that you understand, there is a
requirement for a spot survey within 10 days of placement of slab.
Any building beyond that is at the risk of the builder.
COMMISSIONER SCHIFFER: We know that.
COMMISSIONER STRAIN: Just so you know, in regards to
staff having being able to have discovered this on slab survey, I end
up reviewing quite a few slab surveys, and the slab surveys are for the
slab of the structure. Now, most of them I've seen, and I don't
remember many that show the accessory structure slabs, as well as the
elevations of those structures, so I'm not sure even enduring slab
survey staff would have had the opportunity to catch this. Because I
don't know if this particular slab survey bothered to show the pool
deck which more than likely wouldn't have been poured at the time the
house slab was poured. So--
MR. SCHMITT: Right.
COMMISSIONER STRAIN: Anyway, I'm just making that--
because, I mean, that's how staff could have not seen it and how it
could have gotten further along to the point we're at today.
CHAIRMAN BUDD: Further questions? Mr. Schiffer?
COMMISSIONER SCHIFFER: The mutual mistake, what
makes you think it was a mutual mistake? Just out of curiosity.
MR. LEWIS: I think there's testimony to that. I mean, the staff
report itself makes that conclusion.
COMMISSIONER SCHIFFER: And the reason I ask that is the
survey presented, the elevation marks are done in hand. So at the
time, were those elevation marks on the survey?
<- MR. LEWIS: That were submitted for purposes of the permit?
Page 24
,,--~_...- "'~"-
May 5, 2005
--.,.~ COMMISSIONER SCHIFFER: I don't know.
MR. LEWIS: This is -- that survey you're looking at, we actually
had that done for purposes of what's happening here today.
COMMISSIONER SCHIFFER: So when staff was looking at it
back in --
COMMISSIONER STRAIN: This is a final survey, so --
COMMISSIONER SCHIFFER: -- 2002, which is when he
bought the house, there's nothing on there showing the elevation of the
screen porch, so a staff member could have assumed that it was
meeting the requirements for a 10-foot screened patio.
MR. LEWIS: It's kind of a circular -- I mean, I understand, your
point being that the survey submitted doesn't show the vertical
separation. I can see --
COMMISSIONER SCHIFFER: And the staff -- you know, Joe
pushed the staff on the sword a little too quick, I think, because the
- staff member looking at this would assume that this must be a -- one
that you have to step down to the screened patio. Because there is no
elevation on it. The elevation's been added later.
MR. LEWIS: And that's part of the problem is that, you know--
you know, you're correct, if the builder were fully aware of that
vertical spatial, they could have submitted that. It didn't happen. I
mean, we're at a point now where we're looking backwards in time
and we're trying to scratch our heads and look at the standards for the
variance and figure out, you know, what's the best solution. Again--
COMMISSIONER SCHIFFER: My point is that I'm not
comfortable with the mutual mistake. There was a mistake. I don't
think the staff looked -- at the literature that I have from the staff I
haven't seen the working drawings submitted. And Mike wasn't able
to get that for the hearing.
But I see where staff would have made no mistake. They could
<- have made assumptions based on the survey that would --
MR. LEWIS: That's the -- when the staff in the report indicated
Page 25
-- -.'---
May 5, 2005
- that there was a mutual mistake, what we're talking about is the failure
to -- the assumption that was made that was -- the incorrect
assumption is the mistake.
COMMISSIONER SCHIFFER: I'll ask Mike then about it. I'm
done.
CHAIRMAN BUDD: Further questions for the petitioner?
(N 0 response.)
CHAIRMAN BUDD: There are none at this time. Ifwe could
hear from staff, please.
MR. BOSI: Mike Bosi, zoning, land development review.
I guess the first statement I would make in this case, in this
petition, is that it is indeed an after-the-fact variance. Ultimately all of
the responsibility for the actions would fall upon the property owners
and the builders. But with the approval of the building permit and the
building permit for construction of the pool and the pool deck, I do
believe that some responsibility is assumed by the county when we
did -- when we did approve these building permits. The ultimate
responsibility does fall upon the builder.
COMMISSIONER SCHIFFER: Well, Mike, why do you
assume the county made a mistake? What evidence are you basing
that on? In other words, I'm looking at surveys that somebody
processing the plans -- remember, these elevation marks weren't on
there. It's a fine survey. I'd sign it off. I would have to, you know,
assume that the guy's building the pool at the proper height.
MR. BOSI: The only thing I would say is that the -- the
processes that we had in place at the time -- in 2001, 2002 and the
information that we required on the survey in relationship to the pool
deck in relationship to the regulations that are contained for accessory
structures, in relationship to the adjoining seawall were not thorough
enough to catch the -- to catch the encroachment into the rear yard
dimensional requirement.
Like I said, I believe the ultimate responsibility is on the -- is on
Page 26
-. --
May 5, 2005
.-< the property owner and the builder, but we issued the building permit.
There has to be some degree of accountability.
COMMISSIONER SCHIFFER: But Mike, maybe you issued the
building permit in good faith. All your documents are fine. I mean,
this survey's fine. Obviously if the elevation marks are on it it's not
fine, but that came later.
So in other words, someone looking at Exhibit A would make a
proper judgment in approving that location.
(At which time, Commissioner Midney enters boardroom.)
MR. BOSI: And I will say that I ordered the original planned
submittal for the building permit. Those are kept in storage and they
take about a week to get. Unfortunately, I don't have those today.
And I'm not sure exactly what was showing on the survey at that time.
I would have to assume, though, you're correct, that maybe the
elevations weren't provided at the time.
MR. SCHMITT: Commissioner Schiffer, you are correct.
Basically the way that's submitted and what was shown, staff looked
at it, made the review and said, meets all the requirements.
COMMISSIONER SCHIFFER: Yes, it does.
MR. SCHMITT: Without -- without -- at that time it was really
not well understood when this -- back in 2001 to check for the change
in elevation to discern whether there was a 20- foot or 10- foot setback
for rear yard setback. So what is in fact shown when you look at an
overhead view could basically --
COMMISSIONER SCHIFFER: Could be --
MR. SCHMITT: -- the three setbacks were reviewed. The two
side yard -- well, the side yard setbacks in the front and rear yard
setback, and basically they were approved right at the counter by the
permit tech. And once the building plans were reviewed, the setback
criteria was reviewed and the permit was issued. That process is no
longer --
~.- COMMISSIONER SCHIFFER: It's not --
Page 27
-".-. . ""-'-
May 5, 2005
- MR. SCHMITT: -- the case and you're correct.
COMMISSIONER SCHIFFER: -- a mistake. It's not a mistake.
I don't know -- you know, the hardship's becoming the county
mistake. The county never made a mistake.
CHAIRMAN BUDD: Well, I disagree on that point in that if
evidence was not provided to the county to make a decision, they
made a reasonable assumption, that would be the same as saying
they'd never reject a set of plans or site plan, architectural plan, any
plan, because anything the architect or engineer or builder submitted
that was vacant or absent would then be logically deemed as in
compliance.
No, in fact you get rejections to your plans. And in this case the
evidence provided was insufficient for the county to make an adequate
judgment. The mistake on the part of the county was not rejecting this
survey as saying okay, it tells us setbacks horizontally, but it doesn't
answer the vertical question. So I think the fall goes on the county in
the fact that they didn't ask enough questions, as proven by all the
plans that are constantly rejected for insufficient information. So I see
some fault on both sides of the game.
COMMISSIONER SCHIFFER: And another thing, Russell, too,
is that they're making a judgment without looking at the working
drawings that Mike -- you know, I requested the working drawings be
brought here, he said it would take a month. It's obviously that Mike
didn't review those working drawings when he came to the conclusion.
So we don't know really what was submitted.
MR. BOSI: Commissioner Schiffer, what I can say is the
processes that we had in place did not do -- were not adequate to
ensure that these encroachments were discovered at the time.
Administrator Schmitt has subsequently made the changes to the
process to ensure that these type of -- this type of information and
these type of issues would be discovered at building permit
".- submission. But at the time we did not have those regulations and
Page 28
._-- _.....~~-
May 5, 2005
,.-- procedures in place.
COMMISSIONER SCHIFFER: Can you --
MR. SCHMITT: Just set the record now, of course this design
professional still has a responsibility for compliance --
COMMISSIONER SCHIFFER: Of course.
MR. SCHMITT: -- as you well know.
COMMISSIONER SCHIFFER: You have a responsibility for
that.
COMMISSIONER STRAIN: Can you just tell us what measures
in place that would have told you about this at an earlier stage of this
project?
MR. SCHMITT: At submittal for building plans, an elevation
drawing of the rear -- the construction of the pool and the pool cage
and any retaining walls or any other type of accessory structure now
has to be presented as part of the building application so that the plan
reviewer can review the rear yard setbacks and ensure compliance in
regards to this change in elevation. If it's greater than four foot
elevation, you have to have the 20- foot setback.
COMMISSIONER STRAIN: Well, how would -- now, when
you go in for your zoning approval, you have a requirement that
requires you to show your setbacks. In this particular case, you
showed 10 feet. When you go in for your building plan, the building
plan reviewer then looks to see if the setbacks are consistent in what
the plan reviewer did, and he sees 10 feet.
How would the building plan reviewer go back into the LDC to
know that there's a discrepancy in a footnote?
MR. SCHMITT: Our building plan reviewers for single-family
homes are -- look at all the criteria for every setback requirement
where that single-family home will be placed.
COMMISSIONER STRAIN: So they're now doing that in
addition to the initial parties that look at it during --
.__.. MR. SCHMITT: Absolutely.
Page 29
"-
May 5, 2005
COMMISSIONER STRAIN: -- zoning review?
MR. SCHMITT: Every single-family home is reviewed to
ensure that the setbacks are proper for the permit that's being issued.
COMMISSIONER STRAIN: Sounds good if it's works. Thank
you.
COMMISSIONER SCHIFFER: Joe, here's the problem I have
with this case. What you're saying is you've added to the checklist of
things to do to check the elevation of the pool.
MR. SCHMITT: That's correct.
COMMISSIONER SCHIFFER: But that doesn't mean that the
regulation was enforceable prior to you adding it to the checklist of a
plan review. I mean, the regulation's the same.
MR. SCHMITT: That's correct.
MR. BELLOWS: For the record, Ray Bellows.
This building, when it was constructed, was constructed at a time
<- where we did not have in place these additional safeguards. And it
was one of many properties that had this same type of variance
problem, that the county staff did not -- and we're admitting it, we did
not check that properly.
COMMISSIONER SCHIFFER: Let's stop throwing the staff on
the sword. I mean, the staff does a review of the plans as best they
can. Obviously now you're concerned about this and you're adding it
to the checklist, but the regulation's the same. The regulation is what
everybody should be building buildings to, not what they can sneak by
the staff.
MR. BELLOWS: I think what we're just saying is there's no
excuse for missing a requirement.
CHAIRMAN BUDD: And we need to move on. We're in a
circular loop.
Mr. Schiffer, your opinion is very clear, the staff has their
<- opinion, it's on the record and we can respectfully have different
. .
opInIons.
Page 30
-""> ----
May 5, 2005
- Are there other questions of the staff on this item?
(No response.)
CHAIRMAN BUDD: Are there any registered speakers on this
item?
MR. BELLOWS: No registered speakers.
CHAIRMAN BUDD: Are there any summary com -- Mr. Bosi,
you had something?
MR. BOSI: Oh, I just -- I did also want to put on, in relationship
to the public speaker, staff has not received any comments either for
or against the petition from the general public.
CHAIRMAN BUDD: Thank you.
Are there any summary comments by the petitioner?
MR. LEWIS: I think we just -- with respect to the mutual
mistake issue, we've acknowledged that, you know, clearly the parties
could have, you know, done a better job at the time. We're looking
backward. This is an after-the- fact variance.
.,-,"'<-
The point being, with respect to the code, you have a vertical
setback requirement in the code, and it would be helpful for avoiding
these types of variance petitions in the future, when you have
requirements to verify that these provisions are met, in the process of
trying to help the public move forward, that there be a position in
place to actually look at the vertical setback requirement.
That's my only point. I understand -- again, the staff report
indicates that it was essentially a mutual mistake.
Bruce Anderson, my colleague, who's been working with me on
the petition, would like to address just a couple comments.
COMMISSIONER STRAIN: Before you sit down, there was
one other comment you made. You said that the neighbors aren't
opposed to this?
MR. LEWIS: Well, to my knowledge. We've sent out notices to
the neighbors and my comment is that we have not heard anything at
,..-"- this point from our office from any neighbors. I have not.
Page 31
-~-~-
May 5, 2005
-- COMMISSIONER STRAIN: Did you pro actively get any letters
from --
MR. LEWIS: No, we didn't --
COMMISSIONER STRAIN: -- you never asked them to give
you a letter saying they don't --
MR. LEWIS: No support letters, just no opposition.
COMMISSIONER STRAIN: Thank you.
CHAIRMAN BUDD: Mr. Anderson?
MR. ANDERSON: I need to be sworn.
(Speaker was duly sworn.)
MR. ANDERSON: I just want to emphasize a point that
everybody's tried to make, and that this is not a case where somebody
tried to pull one over on the county. Both the county and the applicant
acted in good faith, and both sides made mistakes. That alone should
be grounds for approving an after-the- fact variance.
No neighbors object. No one was hurt. It was just a screw-up.
Those things happen at the county once in a while. The property
owner shouldn't be penalized for it.
CHAIRMAN BUDD: Thank you.
No registered speakers, no other comments from the petitioner?
Mr. Strain, you have a question?
COMMISSIONER STRAIN: Yeah. Mr. Bosi, the purpose of
the setback being changed, if you go to a certain vertical height, was
the intent to avoid exposure of blank walls? Do you know?
MR. BOSI: That I --
MR. SCHMITT: No, the intent was to -- the intent was clearly to
ensure that the setback did not -- or that accessory structures did not
block the view of neighboring properties. It was primarily to deal
with protecting one's riparian rights because they're building on the
water, of course, but also the right for their view corridor not to be
blocked by accessory structures. And that's what the setback was for.
COMMISSIONER STRAIN: If that's the case -- and I'm trying
Page 32
-"'--'- <--
May 5, 2005
--< to look for some kind of compromise. If that was the case, Joe, then
how can the seawall in that other picture be raised several feet?
Because it's still -- then you're not accomplishing the goal you just
said the intent was for.
MR. SCHMITT: That's a good question. We have no -- as was
stated on the record by the attorney, we do not have any criteria that
would prohibit anyone from capping a seawall. You can call that a
glitch in the code, you can call it what it is, but we do not have any
criteria that would prevent someone from coming in and saying, I can
do this, I'll just put a cap on the seawall and meet the requirement.
COMMISSIONER SCHIFFER: But Joe, let me ask you, is it
your department's opinion that that picture shown is in fact an
extension of the seawall? Or is that a wall on the seawall?
MR. SCHMITT: Well, again, there's nothing in the Land
Development Code that would give us the tools to make that --
,.,,"- COMMISSIONER SCHIFFER: Well, the Land Development
Code defines what a seawall is. It goes back to an ordinance from the
Eighties. And certainly that wall on the seawall would not meet those
requirements of a seawall.
COMMISSIONER STRAIN: Well, Brad, I can tell you, I'm
involved in some seawall designs right now on a project, and you can
literally go as high as you want.
COMMISSIONER SCHIFFER: It's not a height problem, it's a
construction type problem. You can't --
COMMISSIONER STRAIN: Well, but you--
COMMISSIONER SCHIFFER: You can't build a cinder block
seawall.
CHAIRMAN BUDD: Yeah, but keep in mind, the question is on
a property other than the one in question. So let's just assume that
one's totally wrong. It's also irrelevant. The question is can a proper
seawall be built here at this location. The answer is yes.
MR. SCHMITT: This is --
Page 33
~--,- '-
May 5, 2005
-- COMMISSIONER ADELSTEIN: Wait a minute. 18 inches, Joe,
on this seawall, the wall behind it would still be higher than the
seawall.
MR. SCHMITT: Well, right, yes, the rule --
COMMISSIONER ADELSTEIN: So the view be changed for
them, now it would be incomforming (sic) and nobody would be hurt
except for the builder who would have to pay for this.
MR. SCHMITT: That's correct.
CHAIRMAN BUDD: Well, actually, the view would be
changed to the fact that if the solution here today was we rej ect the
petition, we require the owner or the builder, somebody, to either
lower the pool deck elevation or raise the seawall elevation, they will
probably choose to raise the seawall elevation as being less intrusive
on their lifestyle and less expensive.
So then what we're saying to the neighbors, as we look at this
picture right now and you can see the windows on the left-hand side of
the picture of adjacent residence, we're saying to the adjacent resident,
if you don't like the view now, just wait, you're going to hate what
we're going to give you as a solution. Because now you not only have
a pool deck that is minimally obtrusive, but we're going to throw a
foot and a half wall that looks terrible from the seaward side, looks
terrible from the residence side, so be careful what you ask for, you
just might get it.
And we're going to punish everybody, have economic waste all
around, make it worse for every one of us that goes down this
waterway for any reason, make it worse for the residents, make it
worse for the neighbors, and that doesn't seem like a good solution for
me.
COMMISSIONER STRAIN: Tell us how you feel.
MR. SCHMITT: I commend your rational thought on this,
because quite honestly, of all the ones that we've dealt with, this is
,,--~ probably the less egregious in regards to trying to create a compatible
Page 34
~-_._..~..-
May 5, 2005
"M_" integrate to integrate the requirement to meet the design height, the
base flood elevation. And you all know what the -- basically it's the
package on the piece of the property. We deal with that every day in
Collier County, maximizing the package on the postage stamp piece of
property. And this is nothing different.
Unfortunately, like I said, it was not caught at the time to
adequately warn, but you guys, we've been down that road, I'm not
going that way again.
But the fact is, is yes, the solution would probably be not as
palatable as what currently exists, because it's going to be the solution
to abate the code violation. Which it is, it's a code violation. We have
a TCO on this house, temporary certificate of occupancy. To abate the
violation may be something that certainly can do within the code, as
Mr. Budd pointed out. But the solution probably is not the best
solution in regards to the aesthetics that will result in regards to trying
A'_ to meet the requirements in the code.
COMMISSIONER MIDNEY: I'd like to add on to that, too. It
seems like we're talking about an aesthetic issue, and the aesthetic
harm of this 18-inch mistake seems to be very small. And I think
raising the seawall is going to not improve the aesthetics of the site,
it's only going to make it worse.
COMMISSIONER SCHIFFER: Let me just say one thing,
Russell.
CHAIRMAN BUDD: Yes, sir.
COMMISSIONER SCHIFFER: I'm not sure that you can just
stick -- and by the way, it isn't 18 inches; 1.6 feet is 19 and a quarter
inches -- you can just stick that on top of a seawall and say I've raised
the seawall. I mean, I don't agree with that. And we'd have to go back
and look at the ordinance of what a seawall is and what a seawall isn't.
COMMISSIONER ABERNATHY: We're not dictating raising
seawalls anyway. We can't dictate that.
COMMISSIONER SCHIFFER: Well, they're proposing that as a
Page 35
---
May 5, 2005
- solution, just pouring 19 inches of concrete on top of this to solve it.
CHAIRMAN BUDD: Okay, we've heard from the petitioner.
MR. SCHMITT: It would have to be engineered, they would
come in, it'd be engineered, it would be reviewed. I mean, that's -- as
Mr. Abernathy pointed out, I mean, we're not here to discuss how
they're going to resolve it, we're here to basically decide whether or
not they --
COMMISSIONER ABERNATHY: They can get the variance.
MR. SCHMITT: -- can get the variance. The resolution is --
would certainly -- is subsequent to what happens today.
CHAIRMAN BUDD: We heard from the petitioner. Mr. Bosi,
anything more on the staff report?
MR. BOSI: No, Commissioner Budd.
CHAIRMAN BUDD: Thank you.
There are no registered speakers. We'll close the public hearing.
Do we have a motion on this item?
COMMISSIONER ABERNATHY: Well, I'll make a motion to
approve to forward Petition V A-2004-AR-6970 to the -- whichever it
.
IS.
CHAIRMAN BUDD: Board of zoning appeals.
COMMISSIONER ABERNATHY: -- board of zoning appeals
with a recommendation of approval.
I think we've had a lot of fun here -- well, go ahead, if someone
will second it.
COMMISSIONER VIGLIOTTI: I'll second it.
COMMISSIONER ABERNATHY: We've had a lot of fun here
in an academic sort of way, but we have the staff recommending that
the variance be granted. And we know darn well that the county
commission is going to grant it, because the alternatives are rotten. So
I think we ought to just swallow and get on with it.
COMMISSIONER VIGLIOTTI: I believe the cure to add 18
inches is not going to help anyone. It's just a waste of time, a waste of
Page 36
--
May 5, 2005
"- money. And if the initial intent was just to protect view, we're just
going to undo that.
CHAIRMAN BUDD: We have a motion by Mr. Abernathy,
second by Mr. Vigliotti.
Further discussion on the motion?
COMMISSIONER STRAIN: Yeah, I asked a lot of questions
purposely to find out if there was any inclination that the applicant or
anybody tried to, say, sneak one by or put one over on the county
staff. And there have been cases where that seemed more apparent
than this case. Therefore, since I don't see that happening here, I
certainly think that the best thing is to go along with the motion. So
that's what --
COMMISSIONER ABERNATHY: Well, I think the -- we tried
to blame this on the county. I think the builder's clearly at fault for not
understanding the building code, the Land Development Code. But
what do you do about that? So that's where I--
COMMISSIONER CARON: Well, if we keep granting
after-the-fact variances, we'll never get the builders to comply. They
will continue to tell their clients to just go and seek an after-the- fact,
that we'll -- you know, it will be granted, don't worry about it, do
whatever you want.
MR. SCHMITT: Well, I'll comment on that. Frankly, that's my
job, to ensure that the permit is not issued in the first place. And I
accept that responsibility. And we're trying to do everything we can
to do that. But when you deal with 33,000 permitted activities a year,
I mean, there is a potential for something to get by, although it's pretty
remote.
CHAIRMAN BUDD: Further discuss on the motion? Mr.
Schiffer?
COMMISSIONER SCHIFFER: Yeah, but getting by you isn't
the goal. The goal is to build it correct.
-- MR. SCHMITT: That's correct.
Page 37
---~
May 5, 2005
-- COMMISSIONER SCHIFFER: And Robert, one thing is that,
you know, there was no technical testimony that you can in fact add to
the seawall. I mean, adding to the seawall is not a simple matter of
forming up concrete. There's Corps of Engineering reviews, there's
tons of stuff that seawalls get brought into.
COMMISSIONER STRAIN: Brad, I'm telling you, you're--
MR. SCHMITT: There's no Corps of Engineers --
COMMISSIONER STRAIN: There's no -- yeah, you're wrong in
your assumptions. I'm doing some right now, and you don't have--
COMMISSIONER SCHIFFER: Where you're just pouring
concrete on top of these things?
COMMISSIONER STRAIN: No, but you can pull a seawall up
to whatever the height -- there's various heights that are required.
COMMISSIONER SCHIFFER: I mean, the developer who built
this thing could have made the seawall seven feet tall.
.- COMMISSIONER STRAIN: There's no advantage to ripping
out one seawall and putting another one in just to put a new one in
three feet higher when you can just cap the old one. I don't understand
where --
COMMISSIONER ABERNATHY: Mr. Chairman, I'd like to
move the question.
CHAIRMAN BUDD: Yes. Yes, indeed. We will take the vote.
All those in favor of the motion, signify by saying aye.
COMMISSIONER STRAIN: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER MURRA Y: Aye.
CHAIRMAN BUDD: Aye.
COMMISSIONER MIDNEY: Aye.
COMMISSIONER ABERNATHY: Aye.
CHAIRMAN BUDD: Those opposed?
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER ADELSTEIN: Aye.
Page 38
~-
May 5, 2005
- COMMISSIONER CARON: Aye.
CHAIRMAN BUDD: Okay. And those in opposition, I believe,
was Mr. Schiffer, Mr. Adelstein and Ms. Caron; is that correct? So
the motion carries 6-3.
Very good. Moving on to the next item. That would be Petition
PE-2005-AR-7123, Mr. Miceli requesting a parking exemption to
allow off-site parking on a lot that is not commercially zoned.
All those wishing to present testimony on this item, please stand,
raise your right hand to be sworn in.
(All speakers were duly sworn.)
CHAIRMAN BUDD: Are there any disclosures on there item by
planning commissioners?
(No response.)
CHAIRMAN BUDD: There are not.
If we could hear from the petitioner, please. Do we have a
,-- hand-held mic. for Mr. Miceli? Or would it be -- okay.
MR. SCHMITT: Mr. Miceli, come over here.
MR. MICELI: Good morning, commission members. My name
is Michael Miceli. I'm here to see if I can get a parking exemption
through. Evidently staff has denied that, or thought that what I'm
trying to do is something wrong.
But I bought the property about three years ago. As you can see
from the -- Mike's handing them out. These are aerial photographs
that we're passing around from the assessor's office. It clearly shows
the property that -- in question. The -- we show prior to my buying
the property that there was a parking lot used by all the parcels
involved, and those parcels are always owned by one company or
person, as it is now. There was a bar there that's been there maybe 20
years. They used that parking, at least for the last 20 years.
So when I came in, I wanted to improve the property. I did
stucco work, I painted and had the parking lot resurfaced. But staff
seems to think that when I had that resurfaced -- and at the time I used
Page 39
-- .~"--
May 5, 2005
Apex -- they told me there was no permit necessary for resurfacing.
So we had it resurfaced.
But I guess there's no record of a parking exemption granted on
that. Of course, I didn't even know if there was or not, because we
can't find anything in the records. But I'm here to try to legitimize the
use of that parking via the parking exemption.
There's not much more. I mean, you could see from the pictures
the parking lot as it existed. And the resurfacing is not -- I don't know
what paving is. Staff says that I paved. But paving requires for a
parking lot more than just resurfacing. You have to have adequate
base. Because if I just resurfaced over dirt, it wouldn't last even one
year.
But there was a parking lot there, as you can see from those
aerials. And you can see the cars parking there.
Now, that lot used by a multi-family use and also by the
-- commercial use and has for at least 20 years. Even when I bought the
property, I checked with the county to see if there were any kind of
liens on the property or any -- something that wasn't correct with it,
and nothing showed up. So a lot that was used as parking for a
commercial use that was multi-family zoning, the county evidently
didn't think it was bad at the time. I don't know. But as soon as I
resurfaced and I had a tenant that was trying to get an occupational
license, everything hit the fan.
So that's why I'm here, to try to get that parking exemption
legitimized for the parking that I need for the tenants on that property.
CHAIRMAN BUDD: Thank you, sir.
Questions for the petitioner. Mr. Strain?
COMMISSIONER STRAIN: Ray, do you have this package
with you? Because if not, well, someone needs to tell us --
MR. SCHMITT: We've got it.
COMMISSIONER STRAIN: Okay. Would you put 2001 on the
screen? There's four pages there. I just want to walk through them.
Page 40
'""-
May 5, 2005
- That's 2001. Can you put 2003 on the screen? There's two of those.
Okay, that's 2003.
Now, can you put 2004 on the screen? Okay, so 2001 and 2003
didn't have the same what looks like asphalt as 2004. And you said in
2004 you resurfaced. What did you resurface?
MR. MICELI: The existing parking lot.
COMMISSIONER STRAIN: Okay, where was -- I don't see the
parking lot on this picture here.
MR. MICELI: There it is there where the cars are parked.
COMMISSIONER STRAIN: That's dirt.
MR. MICELI: It's not dirt.
COMMISSIONER STRAIN: Oh, it's not dirt?
MR. MICELI: No. Some of it is -- in fact, there are traces from
the old asphalt that we didn't resurface over still existing there. The
driveway is, if you look at it, you could see, it's at least 20 years old.
,-,- And these people have been parking there for years. Now, if that was
just dirt, you would probably see all kind of vegetation growth on it.
COMMISSIONER STRAIN: I do. I just was wondering how
the asphalt that you have in 2004 matched up with the area that
unfortunately appears as dirt in 2003.
MR. MICELI: Well, that what an aerial would show, that it
looks like dirt. But you wouldn't have cars being able to park on it
without -- park in a vacant lot, I mean, see, what happens.
I mean, that base is consistent with any built parking lot today.
And if Apac -- and I have the bills, I've already furnished them to the
county -- just resurfaced is all they did.
COMMISSIONER STRAIN: When did you buy the property,
sir?
MR. MICELI: I bought the property about three years ago.
COMMISSIONER STRAIN: Okay. Did you know that at that
time the Land Development Code required buffering; required water
management facilities; there's buffers required between residential and
Page 41
--< -----
May 5, 2005
commercial; that you can't install fences without a permit; that the
placements of sheds and storage containers on the unimproved lot are
required permits. You have placed a divisionary wall for a drainage
ditch, that's against the code. And that the building that you show as a
future RMF -6 doesn't meet the site configurations that would allow it.
I'm just wondering how you would do all that and not -- when you
purchased the building and not know that there's a code in place that's
supposed to address some of these items that are on record of you
having violated them, according to the staff report we got.
MR. MICELI: Right, according to Mr. Olney from the Code
Enforcement, for the fences -- are we going to discuss that, talk about
that?
COMMISSIONER STRAIN: Well, I'm just curious, there's so
much in violation here, I just don't understand why you would just
keep proceeding with violations.
.,.- MR. MICELI: But I haven't proceeded with anything. All we
did --
COMMISSIONER STRAIN: You paved the lot.
MR. MICELI: -- was in renovating the property, we had some
fences installed. I went to the county, I talked to a Mr. Turner, and he
said you do not need a building permit to do fences on an interior of a
property. If it were on the outer perimeter and they'd want -- they'd
need a survey and you have to get a permit. You do not need it if the
work is under $750.
And I did it, based on what he told me. And he still says that, as
of last week.
All right, now what else did I do wrong?
COMMISSIONER STRAIN: Well, there's no water
management plan for that parking --
MR. MICELI: It was an existing property. I mean, there's -- all
we did was resurface. What would trigger the necessity of bringing a
property up to all the standards of what you're trying to do today?
Page 42
.._-- "_0-
May 5, 2005
~, COMMISSIONER STRAIN: The differences between your
2003 and 2004 photograph --
MR. MICELI: Okay--
COMMISSIONER STRAIN: -- are substantial.
MR. MICELI: -- differences from the photograph. You're right.
It's an aerial photograph.
The fact is, it was always a parking lot. It was asphalted. Maybe
-- you know, like the whole -- the front of the property, on the
commercial piece, I did the same thing and resurfaced it. There were
no lines, there was nothing that -- in fact, on the back, on the back
piece that is your -- the exemption today, it clearly shows the property
line, and the property lines show that that paving was melded right in
with the -- on that whole lot. You can see where the lines are drawn.
So some of the commercial building is in actually on commercial
land where the cars are. You can see the lines for the property.
,-" COMMISSIONER STRAIN: The lot that's in question today
concerning the off-site parking, is that to the top of the page or the
bottom of the page?
MR. MICELI: It's the triple 09 piece. The folio number I think is
ending in triple 09.
COMMISSIONER STRAIN: Right. That's the one I thought.
That one still doesn't -- even on the photograph you're showing -- on
that triple nine piece, you're saying there's an asphalt parking lot prior
to the one you put there?
MR. MICELI: There's asphalt and there was already built up
with the lime rock, yes.
Now, it was paper thin in some areas, because they hadn't done
anything in the many years. But I'm the new kid on the block and I
tried to improve that property, and that's how I did it.
Now, as far as your drainage, I had an engineer out there. And
we don't have any water problem as long as I've owned it. I mean, the
<.~- drainage is perfect.
Page 43
--., <"-
May 5, 2005
,,",,,,,~~ And other violations, supposed violations, they're questionable.
Because talking with the county, there's a doubt that that's even a
violation.
So yes, it looks bad, but look at what the property looked like
before and what I've done. Maybe I've been a little overzealous, but is
that a bad thing, improving the property?
CHAIRMAN BUDD: Okay, other questions for the petitioner?
COMMISSIONER SCHIFFER: I do.
CHAIRMAN BUDD: Mr. Schiffer?
COMMISSIONER SCHIFFER: The drainage ditch on the -- I
guess would be on the southwest side, is that on your property or is
that --
MR. MICELI: Drainage ditch on the southwest side.
COMMISSIONER SCHIFFER: You know, as you -- there's an
easement there.
MR. MICELI: That's my property, yes.
COMMISSIONER SCHIFFER: The ditch itself is in that
easement that's shown.
MR. MICELI: But an easement that's a utility easement.
And what was happening is the water from the building -- when I
got there, the water from the building was eroding and washing all
over the land down into the drainage ditch. And every time you
replaced it and the rains came, it did the same thing. So we put a
landscape structure to retain losing that dirt. Because the county
maintained that ditch. And all they did was kept taking the dirt away
and we were paying to put the dirt back.
COMMISSIONER SCHIFFER: But again the question, is that
ditch in that utility easement, or is it on the property?
MR. MICELI: It's a utility easement.
COMMISSIONER SCHIFFER: So it is on your property.
MR. MICELI: It's on our property.
And the ditch over the years eroded all that land. Anybody going
Page 44
".~_.. '"--
May 5, 2005
out there, you could see it's doing the same thing on the west side. I
don't know the properly zoned angle.
CHAIRMAN BUDD: Anything else, Mr. Schiffer?
COMMISSIONER SCHIFFER: Yeah, just one. The triplex, the
residential stuff, those are properties owned by you --
MR. MICELI: Yes.
COMMISSIONER SCHIFFER: -- and probably rented by you,
correct?
MR. MICELI: Yes.
COMMISSIONER SCHIFFER: Okay. In other words, these are
rental properties.
MR. MICELI: They're rental properties.
COMMISSIONER SCHIFFER: Thank you.
CHAIRMAN BUDD: Other questions of the petitioner?
(No response.)
CHAIRMAN BUDD: No more at this time. Thank you, sir.
If we could hear from the staff, please.
MS. DESELEM: Good morning. For the record, I'm Kay
Deselem. I'm a Principal Planner with the Department of Zoning and
Land Development Review. And I also have with me John Olney,
who is a code enforcement investigator.
You do have the staff report in front of you, and staff, as you're
aware, is recommending denial of this petition.
The requested action includes two things: One, they want to have
an off-site parking on a lot with RMF -6 zoning designation, which is
lot three, which I think was shown on the aerial. And they also want to
have two or more permitted uses to utilize the same or a portion of the
same parking lot.
The particular property is four lots along Gulfstream Drive, and
it's lots one through four of the Naples South, unit number one.
The staff report goes into considerable detail about the purpose
and a description of the project to try to explain to you how we got to
Page 45
.~_w ---
May 5, 2005
- where we are, and it notes particularly that even if this parking
exemption is approved, it's doubtful that staff could support or
approve an SDP for the site with the existing configuration of the site
plan. And it goes into some detail as to why that site plan would not
be acceptable.
On Page 3 of the staff report we've provided to you the particular
portions of the Land Development Code that are relevant to this
petition, noting that there is an error in the current LDC. That
information was not brought forward. That's one of the reasons why
we provided it to you.
We did go into the surrounding land use and zoning. We
provided excerpts from the zoning map and an aerial photograph to
identify the four lots for you. And staff report also includes the aerial
photographs from 2003 and 2004, showing the subject site, similar to
the ones that were provided by the applicant.
We've provided a growth management analysis. And emergency
advisory council recommendation is not an issue, because we didn't
have to go to that board. And staff has provided an analysis for you,
going over the proposed LDC section 4.05.02.K.3 requirements. One,
it talks about the off-site parking, what's required or if it's in excess of
the parking, noting that even if this petition for a parking exemption is
approved, this site will still be short on parking. It will not be able to
meet the requirements.
Number two, it talks about the distance to the farthest parking
space, and it talks about the residential and commercial uses,
pedestrian safety, pedestrian and vehicular safety. And in this
particular instance there is no separation of an arterial or collector
road, so those aren't issues.
But I would bring your attention to items five, seven and eight
and discussion in item No. 12, noting that in summary, staff does
believe that this particular petition is inappropriate because it does not
meet the intent of items five, seven and eight, and notes in item 12 that
Page 46
--~-----,,_.. ~-
May 5,2005
- there could be alternatives available to the petitioner.
I did want to mention to you that a letter has been received by a
property owner that owns the lot directly north, I believe it would be
lot five, and she is not in support of this petition.
And if you have any other questions, I would be -- and I believe
you do have copies of that. If not, I do have them with me. Because I
think I e-mailed to them to you so you would have them.
If you have any questions, I'd be happy to respond to them. And
as I mentioned, I also have Mr. Olney here and he can respond to any
questions you might have.
CHAIRMAN BUDD: Questions of staff?
COMMISSIONER ABERNATHY: I do.
CHAIRMAN BUDD: Mr. Abernathy?
COMMISSIONER ABERNATHY: Kay, does Mr. Miceli show
any -- from what I get from his testimony is that he's not prepared to
correct any of these deficiencies. Is that your impression?
MS. DESELEM: He would have to respond to that himself. I
don't know what he might --
COMMISSIONER ABERNATHY: Has he made any offer to
correct any of these things?
MS. DESELEM: I believe John Olney can testify to his status
with the code board, because I think he is pending hearings before the
code board for some of the other issues related to this particular
property .
COMMISSIONER ABERNATHY: Well, I note that he says he
has no drainage problem because it all runs off into somebody else --
into a ditch. Well, that would be -- nobody would have a retention
pond if that were the case, the water --
MR. SCHMITT: He's been cited --
COMMISSIONER ABERNATHY: -- would just go somewhere
else.
MR. SCHMITT: -- for violations for not receiving proper --
Page 47
--'~ ,,-
May 5, 2005
- designing it properly through proper South Florida Water
Management permitting processes, so that's all-- John can certainly
attest to that in regards to the code case.
COMMISSIONER ABERNATHY: Well, I guess this thing that
looks to me like a connex box storage device. It's more than a locker.
That's also a code violation?
MR. SCHMITT: Yes.
MS. DESELEM: Yes.
I can respond. On the drainage plan that was provided by
Consul- Tech, the engineer, and it's a signed and sealed plan, the note,
item five says, there is no way to comply with the county's 25-year
three-day berm criteria due to the existing conditions.
That was one reason why I mentioned that it would be very
doubtful, given the configuration of the site, if any SDP could be
approved, because of things just like this.
COMMISSIONER ABERNATHY: What I'm trying to get at is
are we here too soon? In other words, if the petitioner were willing to
do some corrective things, would there be conditions under which this
petition could be granted?
MS. DESELEM: I think that the things he's been cited for for
code don't necessarily have anything to do with the RMF designation
of the lot. And he's here now to correct the designation of the zoning
on the lot. And Ldon't think until that's done he can do too much as
far as getting a cite plan approved. Because he has to get permission to
have the use there first, and that has to come before the SDP. And
then if he were to get with his engineering and try to resolve some of
our issues or remove some of the buildings or whatever, you know,
that would come after this.
COMMISSIONER ABERNATHY: All right. Thank you.
CHAIRMAN BUDD: Mr. Schiffer?
COMMISSIONER SCHIFFER: Kay, have you studied what the
legacy of this thing is? Because, you know, I kind of know that site
Page 48
,.,,-
May 5, 2005
- and I know the drainage ditch. And it appeared to me back when this
subdivision was developed that everything kind of flowed into that
drainage ditch.
But how old this is building?
MS. DESELEM: I truly don't know. It's been told to me by Mr.
Miceli that it's in excess of 25 years, for the commercial structure. I'm
not certain about the residential.
COMMISSIONER SCHIFFER: And prior to a lot of regulations
we're claiming it doesn't meet; is that right?
MS. DESELEM: That's true. But when he begins to improve the
property and do other things, he has to bring it up to code to the extent
possible.
COMMISSIONER SCHIFFER: But I mean --
MS. DESELEM: And first of all, he can't put something where
the zoning isn't allowed, the use.
COMMISSIONER SCHIFFER: Correct. And he's appropriately
here.
But the concern I have is that this is an existing use. It was
obviously zoned C-4. It was intended to be an intense commercial
use, I think through the cowboy use of the back for parking and
overflow like that. But I've looked at the building, there's like service
doors in the back. So obviously everybody always intended for
vehicles and delivery vehicles to approve the back of that building.
But, I mean, his only problem was is he did his pavement and
that triggered this, correct? I mean, if he were to do like Ken
suggesting, a proper, you know, paving plan or a site improvement
plan, wouldn't that be acceptable, if we grant him the use of that
property behind him?
MS. DESELEM: We'd look at what ever he submitted, and if it
met code, we'd approve it. But I don't know. Based on what I've seen
so far, as far as the site plan, I can only respond to that and state that
-- we couldn't approve the site plan that he has now.
Page 49
--..'"' .".---
May 5, 2005
""",-. COMMISSIONER SCHIFFER: I mean, it won't be as he's
paved. But -- and obviously he'll get a proper site plan, something to
scale drawn.
Could you show us the Consul-Tech drawing? Because we didn't
get that in our packet.
MS. DESELEM: You didn't get a -- I'm sorry.
COMMISSIONER SCHIFFER: At least I don't think we did. I'll
ask --
MS. DESELEM: I do apologize, because there is only one there.
CHAIRMAN BUDD: Mr. Adelstein, do you have a question?
MS. DESELEM: And there have been modifications.
COMMISSIONER ADELSTEIN: No, no.
CHAIRMAN BUDD: Okay, other questions while Mr. Schiffer
is studying that site plan?
COMMISSIONER VIGLIOTTI: I have a question for code
enforcement.
CHAIRMAN BUDD: Go ahead, Mr. Vigliotti.
COMMISSIONER VIGLIOTTI: Good morning. What existing
violations are there, and what is the petitioner doing to resolve them?
CHAIRMAN BUDD: Sir, could you state your name for the
record.
MR. OLNEY: For the record, John Olney, Collier County Code
Enforcement.
COMMISSIONER VIGLIOTTI: Was he sworn in?
MR. OLNEY: I was previously sworn, yes, sir.
The question again? What are the code violations?
COMMISSIONER VIGLIOTTI: What are the existing
violations and what is the petitioner doing to resolve them?
MR. OLNEY: In January of'04, I presented four notices of
violation to Mr. Miceli. One, that he needed to get a site development
on this property; two, that he had no -- he needed a permit for the
.- fences he erected on the property; three, he had a shed and this metal
Page 50
'--'- _._.-
May 5, 2005
storage container on an unimproved lot; and four, he has placed a -- I
call it a diversionary -- a wall in the drainage ditch behind the
property, which Stormwater Management wanted removed, and it was
not permitted in the first place.
COMMISSIONER ABERNATHY: Excuse me, you said a
storage container on an unimproved lot. Does that mean that it was not
even paved?
MR. OLNEY: Correct. For the rec -- I have covered this
particular area since December of '02. I used to use this lot to get out
of traffic to park while I did some paperwork.
To me, I thought it was a gravel lot or a dirt lot. I did not
consider it paved. I will not argue with Mr. Miceli that it may have
been paper thin in places, I don't know. But I thought it was a dirt lot,
a way to get out of everybody's way while I wrote.
As for progress on resolving these issues, there has been none
made. However, I have not pushed the issue because we are waiting
up on the site development plan and to see if he gets it, will some of
these issues be allowed if he has a site development plan approved by
the county.
COMMISSIONER VIGLIOTTI: And when were these
violations originally written up?
MR. OLNEY: I started this particular matter in January of'04.
COMMISSIONER VIGLIOTTI: Thank you.
MR. OLNEY: January 21st.
CHAIRMAN BUDD: Further questions?
(N 0 response.)
CHAIRMAN BUDD: Any questions of staff?
(N 0 response.)
CHAIRMAN BUDD: None at this time.
COMMISSIONER SCHIFFER: One quick question.
CHAIRMAN BUDD: Yes, sir.
COMMISSIONER SCHIFFER: Kay, did you review and make
Page 51
--~----~'.,"- --
May 5, 2005
-~~- sure his parking calculations were correct?
MS. DESELEM: Yes, I did. Based on the information he
provided as to the uses on-site.
COMMISSIONER SCHIFFER: But you have no floor plans. So
in other words, you don't know within that building how much of that
is storage, how much of that is kitchen, how much of that is --
MS. DESELEM: No, I do not.
COMMISSIONER SCHIFFER: And would that not affect the
parking?
MS. DESELEM: I don't necessarily think so. The bar was
already allowed with the 32 spaces, and it goes by seat. So my
understanding is that the actual consumption on premises, the use that
was -- how can I phrase this, excuse me a moment. The request for
the temporary permit for the restaurant and the bar and the use of that
facility for that, because he's had the change of ownership of that, or
change of use as far as the person that runs it, and he's come in and got
different permits to do that. And that represents that the restaurant is
allowed at 32 seats, and the parking requirement is based on that.
He's represented the other uses, as I noted in the staff report. On
the site plan, it shows that one thing's a bakery, but then when he
provided the parking calculations, he says that's not a bakery. So I'm
only going on what he's provided to me. And I did verify the
calculations based on that information.
CHAIRMAN BUDD: Any other questions?
(N 0 response.)
CHAIRMAN BUDD: Questions of staff?
(No response.)
CHAIRMAN BUDD: Ray, do we have any registered public
speakers?
MR. BELLOWS: None registered.
CHAIRMAN BUDD: Okay, with that, we'll close the public
- hearing. Do we have a motion? Mr. Strain?
Page 52
-~,---
May 5, 2005
COMMISSIONER STRAIN: Mr. Chairman, I'd like to make a
recommendation that we deny Petition PE-2005 -- or recommend to
deny Petition 2005-AR-7123 for the following reasons: Number one,
it's out of character with the neighborhood; no water management
facilities are indicated or shown; the proposed parking lots are not
internally accessed; there is a -- only access would be through a
residential street with a commercial property, that isn't necessarily
something that is beneficial to the public; the buffers shown are not
adequate, or there are no buffers shown, actually; and that there are
alternatives that do exist to this property; and lastly, there's absolutely
no redeeming value to approve this.
COMMISSIONER ADELSTEIN: I second the motion.
COMMISSIONER MURRAY: Second.
CHAIRMAN BUDD: Motion by Mr. Strain, second by Mr.
Adelstein.
Discussion on the motion?
COMMISSIONER SCHIFFER: Yeah, I'd like to -- I'm not going
to vote against the motion, because I do think that this is an example
of where, you know, there's been a use, a historic use, the way the
site's been used historically has been used this way, and somehow it
seems unfair to me to all of a sudden impose the current LDC
requirements on him.
CHAIRMAN BUDD: Further discussion?
COMMISSIONER ABERNATHY: Yes, sir.
CHAIRMAN BUDD: Mr. Abernathy.
COMMISSIONER ABERNATHY: I agree with all ofMr.
Strain's point, except the one that says it's out of character with the
neighborhood. I went over and looked at that street yesterday, and in
all due respects to Mr. Midney, I felt like I was in Immokalee.
COMMISSIONER MIDNEY: Oh, no, not my neighborhood.
COMMISSIONER ABERNATHY: There's a house down the
street that has a screened-in porch, and they must be composting
Page 53
'-~--- -_0'.-
May 5, 2005
-< household goods, if you can imagine that, because they sit on this
porch and turn black and then further degrade. Most -- two or three
doors down, the entire front yard is paved. And I doubt very seriously
they have an exemption. It's just a -- it's a Polyglot of substandard
dwellings. I just didn't believe that existed in East Naples anymore.
CHAIRMAN BUDD: Further discussion on the motion?
COMMISSIONER SCHIFFER: Let me just play on top of what
Ken just said. This is why I'm going to vote against the motion is that,
you know, this is a mixed use project. It may not look like one, it
certainly doesn't look like the ones on Fifth A venue. But essentially
when you look at it, it's a mixed use project. It's combining parking
and commercial. If we put the units on the top, we might notice it
more.
So I think the problem with this place is just what Ken brought
out, is the neighborhood it's in. And I think they should have a chance
to be able to develop this. Certainly make the parking -- I wouldn't
approve the site plan, I would certainly make them meet code with the
parking lot layout. But I think we should give him the chance to do
that.
CHAIRMAN BUDD: Any further discussion?
(No response.)
CHAIRMAN BUDD: Being none, we'll call the question. All
those in favor of the motion, signify by saying aye.
COMMISSIONER STRAIN: Aye.
COMMISSIONER ABERNATHY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
CHAIRMAN BUDD: Aye.
COMMISSIONER MIDNEY: Aye.
CHAIRMAN BUDD: Those opposed?
Page 54
"-
May 5, 2005
,~-... COMMISSIONER SCHIFFER: Aye.
CHAIRMAN BUDD: So it's 8-1. Motion carries.
It is 10:00. Before our next and last agenda item, we'll take a
15-minute break.
(Recess. )
CHAIRMAN BUDD: We will call the planning commission
back to order and resume with Item 8(E), which is Petition
PUDZ-2004-AR-6192, Toll Brothers, Inc., requesting a rezone from
the rural agricultural and community facility zoning district to the
residential PUD.
All those wishing to present testimony on this item, please stand,
raise your right hand to be sworn in.
(Speakers were duly sworn.)
CHAIRMAN BUDD: Thank you. Are there any disclosures by
planning commissioners?
Mr. Strain?
COMMISSIONER STRAIN: Yes, Mr. Chairman, I had an
extensive discussion with Mr. Y ovanovich, primarily around the
application of the TCMA to this area.
CHAIRMAN BUDD: Other disclosures? Mr. Adelstein?
COMMISSIONER ADELSTEIN: I just talked with the
complainant's (phonetic) office.
CHAIRMAN BUDD: Okay, any others?
(N 0 response.)
CHAIRMAN BUDD: No other disclosures. Ifwe could hear
from the petitioner, please.
MR. YOV ANOVICH: Good morning. For the record, Rich
Y ovanovich, on behalf of the petitioner.
I have with me some people that can answer questions that I
might not be able to answer. I have David Torres with Toll Brothers,
Chris Hagan with Johnson Engineering, Laura Spurgeon with Johnson
Engineering, and Mike Myers with Passarella and Associates to
Page 55
<-- ,..,.-
May 5, 2005
-- answer any questions you may have that I may not be able to answer.
On the visualizer you have the location map. The property is
approximately 40 acres. It's located on Davis Boulevard,
approximately 1,700 feet east of Santa Barbara.
As you can see on the visualizer -- actually you need to pull it out
a little bit, Ray -- to the north of us is Wildwood Estates and New
Hope Ministries. East of us is Naples Heritage. To the south is vacant
land which is zoned agricultural. To the west of us is Animal Control
and the Boys and Girls Club, and also the activity center, which would
allow commercial uses.
We're located within the residential density band for the activity
center that is at Santa Barbara and Davis Boulevard.
Under the comprehensive plan, the base density would be four
units per acre. And since we're in the residential density band, we
could request an additional three units per acre. So the maximum
density could be seven units per acre. Our request is for four units per
acre.
As you can see from what's on the visualizer, a lot of the 40 acres
is already being utilized. You have the driving range to the east,
which is on about 11 and a half acres, and then you have the drive-in
theatre and flea market that's on approximately nine-and-a-half acres.
I'm going to take you quickly through the master plan. This is
not a very big project. It's only 160 units. We're going to line up our
access to the property with the parcel across the street so that the
access will move a little bit from the current location.
We're requesting five deviations from the Land Development
Code. Deviations one, two and three deal with the roads and are
typical deviations that you see for private roads. They're intended to
act as traffic calming and will allow safer traffic within the project.
Deviation four deals with the lake excavation depth. And I
understand that we have resolved our differences with county staff.
..- And I believe we're asking for seven feet versus 10 feet, and I believe
Page 56
.~<._-
May 5, 2005
- your staff is in agreement with that now for deviation number four.
And deviation five deals with the height of the wall for the
project, mainly wanting to make sure we adequately buffer ourselves
from Davis, since it's at a higher elevation road.
The EAC recommended approval unanimously with two
stipulations. Those two stipulations are within the PUD document.
Your planning staff has recommended approval, as well as your
transportation staff.
The application is consistent with the comprehensive plan. And
we are requesting that you forward our petition to the Board of County
Commissioners with a recommendation of approval.
I just wanted to give you a brief overview. I know you've all
read the staff report, so there's no need for me to get into any more
detail. If you have any specific questions regarding the project, we'll
be happy to answer them.
And just to point out for the people of Naples Heritage, we --
maximum height for any building is 35 feet, not -- three stories not to
exceed 35 feet. We'll need to make sure we clarify that in the
development table. I talked to Mr. Strain about that to make that a
little bit more clear that the three stories is a maximum of 35 feet.
And with that, I'll open myself up to any questions that the
planning commissioners may have.
CHAIRMAN BUDD: Questions for --
COMMISSIONER ABERNATHY: Mr. Chairman?
CHAIRMAN BUDD: -- the petitioner? Mr. Abernathy?
COMMISSIONER ABERNATHY: Rich, I notice your
minimum floor area is noted as 1,000 square feet for most of these
uses. What do you actually propose to build? Do you have a
prototype?
MR. YOV ANOVICH: David, do you know right now?
CHAIRMAN BUDD: He needs to come forward to the
microphone, please.
Page 57
-~-'_... -...--
May 5, 2005
,...-, MR. TORRES: My name is David Torres; I'm an assistant vice
president with Toll Brothers.
The petition is showing a minimum square footage of 1,000
square feet. Our product that we're using in this area right now has a
minimum of 1,600.
COMMISSIONER ABERNATHY: 1,600.
MR. TOREKY: Yes.
COMMISSIONER ABERNATHY: Okay. Thank you.
Now, Rich, given that, given these 1,600 square foot homes, I'm
a little distressed that you have a side yard setback of only five feet. I
thought the law in Collier County, as much as I'd like for it to be seven
and a half feet, was pretty well settled at six feet. So I cannot support
this with a five-foot side yard setback, absent some absolutely
compelling reason. Do you have a compelling reason?
MR. YOV ANOVICH: We can -- we can accommodate the six
foot --
,.'-
COMMISSIONER ABERNATHY: Six then?
MR. YOVANOVICH: Yes, sir.
COMMISSIONER ABERNATHY: Can't do seven and a half,
though.
MR. YOV ANOVICH: No.
CHAIRMAN BUDD: Do I hear eight?
MR. YOV ANOVICH: Any chance for three?
By the way, how come you get a panic button and I don't get a
panic button?
CHAIRMAN BUDD: It's you that we're afraid of.
Okay, other questions of the petitioner?
(N 0 response.)
CHAIRMAN BUDD: There are none at this time.
COMMISSIONER STRAIN: I've got --
CHAIRMAN BUDD: Oh, Mr. Strain, I overlooked you.
COMMISSIONER STRAIN: I wanted to make sure everybody
Page 58
'-~' -<-
May 5, 2005
-- else got their time.
COMMISSIONER ABERNATHY: We would have all fainted.
COMMISSIONER STRAIN: Including me.
Deviation five, Richard. You're talking a change to the height of
fences to be from the finished floor elevation of the nearest residential
structure, and from the top of the berm of the elevation -- on top of the
elevation of a berm.
You know, there's nothing to prohibit you guys from building a
residential structure 15 feet in the air and saying you want eight feet
on top of that, so I need to have some kind of guidance on how we can
restrict the height.
MR. YOV ANOVICH: Mr. Hagan says that he believes the berm
height will be approximately three feet, so if you --
COMMISSIONER STRAIN: Top of berm elevation not to
exceed three feet.
What's the maximum height of residential structure going to
have?
COMMISSIONER ABERNATHY: 35--
COMMISSIONER STRAIN: No, no, finished floor.
MR. YOV ANOVICH: If you want to go on to any other
questions while we're getting that information for you, Mr. Strain,
we'll --
COMMISSIONER STRAIN: Okay. Well, this starts inside the
PUD.
And Ray, just for the record, this PUD is flooded, loaded, just
bulked up with repetitive statements from the LDC again. How and
when are we going to stop that? Because we keep talking about it and
it's been going on for a long time.
MR. BELLOWS: I'll be submitting a draft of the language to
Mr. Schmitt to eliminate the PUD document within the next month.
COMMISSIONER STRAIN: You mean to standardize the PUD
w_ document.
Page 59
"'-'-~"-
May 5, 2005
MR. BELLOWS: No, to eliminate the PUD document
altogether. And we'll have resolution or ordinance -- in the case of
PUD's, an ordinance that specifically just lists development standards,
uses, deviations from the code and developer commitments. And that
will be incorporated into an ordinance. I have the draft going and I --
because of A ve Maria, I just -- it would be next month.
COMMISSIONER STRAIN: Okay. Well, I just wanted to make
sure we'll eventually get there, because this is one of the worst ones
for having redundancy.
Well, we'll go on and as far as the other -- when there's a
deviation requested, is the deviation supposed to be noted as a
deviation within the document itself, within the PUD document itself?
MR. BELLOWS: Not necessarily. The development standards
are those of the document. It doesn't have to be spelled out as a
deviation. But during the public hearing process, we want the board
and -- both Planning Commission and Board of County
Commissioners to know what we're deviating from.
COMMISSIONER STRAIN: Okay. Richard, do you want me
to go into the PUD while you're still working on --
MR. YOV ANOVICH: I got the answer for you, Mr. Strain.
Minimum floor elevation is 13.5. Existing grade is 10.6.
COMMISSIONER STRAIN: Okay, so the -- okay.
On page Roman numeral II-5, under landscape buffers, 2.9.E, it
talks about fences and walls which are an integral part of the security
and access control. Basically will be subject to the height limitations
for the principal residential structures. So that allows you to have
fences and walls 35 feet high?
MR. YOV ANOVICH: I think what we're intending to address,
Mr. Strain, is really the gate -- the control gates and gate houses. And
those structures, the gate house, you know, 20 feet would work.
- COMMISSIONER STRAIN: Okay. So E will have a limitation
to a maximum of 20 feet.
Page 60
.---..-..... .~.._-
May 5, 2005
~-- MR. YOVANOVICH: Yes.
COMMISSIONER STRAIN: I'm making notes so when there's a
motion made, whatever way it goes, I'll be able to make sure you feel
comfortably stipulated.
On Roman numeral II-S, 2.22, lake setback excavation, this is
more for the county attorney, for referencing the sections of the code
of laws?
MS. STUDENT-STIRLING: Yes, because that's where that's
now found.
CHAIRMAN BUDD: I understand that, but I've never received a
copy of the code of laws like I've been promised. So when can I get
my copy so that I know what it is I'm approving or not approving?
MS. STUDENT-STIRLING: Okay, I will duly make note of
that and--
,
COMMISSIONER STRAIN: If you could, I'd appreciate it,
Marjorie. I don't -- you know, I know it's on line, so I was able to
check this on-line, but on-line is not always available.
MS. STUDENT-STIRLING: Understood.
COMMISSIONER STRAIN: So it would be helpful to have a
copy, like we were -- we mentioned.
On your development standards table, Richard, your -- and I
know we talked about this, but I want to understand it for the record.
Number 3, the little footnote three in the Roman -- your development
standards table is on Roman numeral III-3, building distance may be
reduced to garages to a minimum of zero feet for attached garages.
But that's only between the principal structure and accessory structure,
that is not lot to lot.
MR. YOV ANOVICH: Correct.
COMMISSIONER STRAIN: In no case will you have less than
12 feet between structures, principal structures or accessory structures
on adjoining lots.
- MR. YOV ANOVICH: On a side setback, yeah. We're not
Page 61
-~...."- ..._^--
May 5, 2005
attempting to change the side setback by that standard.
COMMISSIONER STRAIN: With that clarification, that's what
I wanted to find out.
On page V-5.
MR. YOV ANOVICH: Mr. Strain, and we're understood that on
attached single-family structures, of course you can have the
accessory structures adjacent --
COMMISSIONER STRAIN: Yes.
MR. YOV ANOVICH: -- to each other. You're talking about a
typical single-family --
COMMISSIONER STRAIN: That's correct.
MR. YOVANOVICH: -- development. Yes.
COMMISSIONER STRAIN: On 5.9 of the environmental,
under D, the last couple of lines, it says all principal structures shall
have a minimum setback of 25 feet from the boundary of any
preserve. Accessory structures shall have a minimum of 10- foot
setbacks. Then on E, it says buffers shall be provided around
wetlands extending at least 15 feet landward from the edge of the
wetland preserve in all places and averaging 25 feet landward.
What is considered the boundary of the preserve, the outside the
buffer or inside the buffer?
MR. YOV ANOVICH: Well, and this is a very -- an issue that --
COMMISSIONER STRAIN: We're talking about possibly a
50-foot buffer around a preserve.
MR. YOV ANOVICH: It's exactly what happens if you apply the
code the way staff is applying the code. You have a wetland.
COMMISSIONER STRAIN: Right.
MR. YOV ANOVICH: You're required to put a buffer between
you and the wetland. And then you're required to put another 25- foot
buffer -- or 10 foot. Is it 20? 25 feet or 10 feet, depending, between
yourself and the buffer you're required to provide, so it can be -- you
can have up to a 50-foot buffer from a wetland based upon the LDC.
Page 62
-~.~ ---
May 5, 2005
-- And I don't understand the reason for that. And we've been trying to
work through this and find out what's the reason to have another
buffer from another buffer.
COMMISSIONER STRAIN: Right. Well, that's what it looks
like. And I hadn't noted it as blatantly as I'd seen it in the way it was
consecutively written here.
MR. YOV ANOVICH: Right.
COMMISSIONER STRAIN: And maybe Ray or Joe, do you
guys -- is it true that in some cases we're looking at 50 feet from
wetlands by having dual buffers around them? Is that the way you all
believe the code is applied?
MR. SCHMITT: It's 25 feet from a buffer is -- or 25 feet from a
preserve is the required distance to be set back from a preserve.
COMMISSIONER STRAIN: Is it 25 from the wetlands or 25
from the preserve? And the reason I'm asking is because it looks like
the preserve's now created by a buffer that's in addition to the
wetlands. So you've got the wetlands, then you've got up to 25 feet
for a buffer, then you've got up to another 25 feet for another buffer.
Is that the --
MR. YOV ANOVICH: Exactly. They require us to include a
buffer from the wetlands and they make us include that in the
preserve.
COMMISSIONER STRAIN: So you buffer--
MR. YOV ANOVICH: And they add another 25 -- you have to
put a 25-foot buffer next to the 25-foot buffer they requires (sic) to
include in the preserve, and that's how it works.
COMMISSIONER STRAIN: That's nothing I know you can
correct in this. I just thought it was odd that we have 25 -- we have a
buffer to protect a buffer, and I don't understand the reasoning behind
it, but maybe --
MR. YOV ANOVICH: Well, they could measure the preserve
being the wetland and then make us do the 25 feet from the wetland,
Page 63
-'-~"-"'- ---'-
May 5, 2005
.-'''" and then you would have a 25-foot buffer from the preserve.
COMMISSIONER STRAIN: I had actually thought that was the
intent until I read this, and that's why I brought the question up.
I guess Kay or staff, we received in our package two documents,
one entitled the Environmental Impact Statement, the other entitled
the TIS, Traffic Impact Statement. Both, though, were labeled
excerpts from those. That's the first time we've only gotten pieces. Is
there a reason we didn't get the whole document?
MS. DESELEM: For the record, Kay Deselem.
I don't know that you always get everything. But I wanted to
identify the fact that you were not getting everything. I tried to send
you the summaries of what it was, and knowing that if you had
questions, hopefully you would call me, because I do have the official
large documents. But the exec -- the Environment Impact Statement
is about a two-and-a-half-inch thick book, and--
COMMISSIONER STRAIN: I would--
MS. DESELEM: It did go to the EAC. The EAC did review the
petition. They had the entire book to review. So I just tried to give
you the highlights, and then I gave you environmental staffs
comments and the EAC recommendation, hoping that that would
suffice.
COMMISSIONER STRAIN: I guess then so you know if it's
me, I'd prefer the entire book. Not only is it good for a project like this
but any other proj ects in the area, to make sure that traffic engineers
are using consistent data when they go from proj ect to proj ect, or if
they come in a week later with a different study, then I can compare as
to why. So in the future, if you don't mind, I would certainly like the
full book, if that's okay.
MS. DESELEM: So noted; we'll do so.
CHAIRMAN BUDD: And Kay, I don't know that you
necessarily need to change your strategy for the board at large, other
commissioners can speak up, but I can assure you in all honesty, I'm
Page 64
._~~" ._~-
May 5, 2005
- not going to read it. I'm looking for the executive summary. But I
know from experience Mr. Strain will read it and we should make that
available to him.
COMMISSIONER STRAIN: Thank you.
MS. DESELEM: Is there a general consensus? I mean, does -- I
mean, I can do whatever you want. It's my job to get you the
information you want and you need.
CHAIRMAN BUDD: Not for me.
Any other commissioner other than Mr. Strain looking for the
detailed analysis on all petitions?
COMMISSIONER STRAIN: Such exciting material. Nobody
wants it. I can't believe it.
MS. DESELEM: It would be my pleasure to get you the entire
document for both the EIS and the TIS.
COMMISSIONER STRAIN: In this particular project I'd like to
keep it so I can refer back to it if I need it. I mean, if it's that thick that
means it's got a lot of detail in it.
MS. DESELEM: I will get you a copy.
COMMISSIONER STRAIN: Then Mr. Scott will have a lot
more questions next time.
And in the meantime, I do have -- I'm on the traffic study and I
just have two questions or three questions of Mr. Scott, if I can move
into that.
And Richard, I'm assuming your traffic engineer is not here?
MR. YOV ANOVICH: That is correct, Mr. Strain, he could not
be here.
COMMISSIONER STRAIN: I'll just hope that Don can fill in.
MR. YOV ANOVICH: I'm sure he can.
MR. SCOTT: Don Scott, transportation planning.
COMMISSIONER STRAIN: Don, this isn't a -- actually, it
accesses a road that's within the TCMA.
MR. SCOTT: That's correct.
Page 65
-_.~.,."-~ ._-,---
May 5, 2005
.-- COMMISSIONER STRAIN: TCMA has several categories of
levels of proportionate sharing and other criteria needed when roads
have levels of impacts of a certain standard within the road that's
within a TCMA.
MR. SCOTT: That's correct.
COMMISSIONER STRAIN: You're aware of those. I am as
well. They weren't addressed in this package. I just want assurances
from you that at what stage will those requirements be addressed.
MR. SCOTT: We address those at site planning. And I did go
back and look at the history of that, too. When we first started
reviewing this, the two segments involved weren't actually below level
of service standard, but they are now, and it's correctly noted by what
you said previously on that.
We do that at site planning because based on the time between
now and whenever that happens to be approved site plan, we do
".'-~ proportionate share above and beyond impact fees, and it's based on
the V over Cover 1.0, which can change in that given amount of time,
and payments are made at that time.
COMMISSIONER STRAIN: Okay. So I'm not going to get into
the minutia on those particular details, since you're going to check it at
that stage, other than the fact that the applicant realizes if one of the
items that he needs to change in order to come into compliance
changes the master plan, then he's going to have to come back for a
PUD modification.
MR. SCOTT: That's correct. And we will make sure that any
project that's within those areas, they're identified for the applicants so
they know at that time, too.
COMMISSIONER STRAIN: One other question. Do you know
why they would have used -- this proj ect goes onto Davis Boulevard
and east and west. If you go east, you hit 951; if you go west, you hit
Santa Barbara. So they have a segment of Davis between their
entrance onto Davis and Santa Barbara and their entrance on 951.
Page 66
--."" _._,------.~.~. "'. ..---
May 5, 2005
They provided the information of the traffic counts from their entrance
eastward to 951. But for the westward movement, they went from
Santa Barbara to County Barn Road. Why is that?
MR. SCOTT: I think it's because the way we break ours up is
from County Barn to Santa Barbara and then Santa Barbara out from
there. But it's -- what we look at is what is the highest impact they
have on each of those segments.
COMMISSIONER STRAIN: Okay. But the segment between
Santa Barbara and their access point, there's been no criteria provided.
MR. SCOTT: What they have coming in to it, though, is what
we would use entering p.m. peak hour volume, we would use for that
segment.
COMMISSIONER STRAIN: Okay. The storage capacity on the
right turn lane, they didn't provide any. That's de-celing, I would
assume.
MR. SCOTT: Yes.
COMMISSIONER STRAIN: And there's no storage capacity
required?
MR. SCOTT: It depends on whether you have a signal or not.
Usually if it's a free-flow, then we don't provide the storage.
COMMISSIONER STRAIN: Well, if they put a signal, which
they're anticipating, in connecting across the way down the road, what
happens then?
MR. SCOTT: We've had a lot of discussion, and there was
actually language in there at one point that said fair share calculation,
but because of where the other roadways are coming in, like the -- I
don't know what the name of the one, but through Madison Park,
which was Twelve Lakes, I believe, before, which will be a collector
roadway, in the spacing criteria, it's going to be a right-in, right-out,
essentially. Or -- it's not going to be a full medium opening in the
future.
COMMISSIONER STRAIN: Okay. And my last question is,
Page 67
".'~--'"'~_.-'""- <--
May 5, 2005
during the preap., Ed Kant, who's no longer employed with the
county, had indicated that they needed to justify or -- providing why it
wasn't appropriate to connect to off-site projects. I haven't seen any
data to that effect.
MR. SCOTT: And I went back and I looked at some of the staff
comments at that time. We actually had some discussion with the
property owner when they were assembling the property, and they
were trying to get a larger property over to Santa Barbara and were
not able to do that. And in some of the language that I read, there was
some issues with preservation land and wetlands in the area, where it
was precluding them getting a connection over.
COMMISSIONER STRAIN: But do you feel that in your
opinion then there's not a viable way to make a connection?
MR. SCOTT: We pushed, and in there it said there was a lot of
discussion about it, but we never got to the point of being able to do
that.
COMMISSIONER STRAIN: Okay. Well, that's my questions.
Thank you.
COMMISSIONER MURRAY: I--
CHAIRMAN BUDD: Mr. Murray?
COMMISSIONER MURRAY: Oh, not of you, sir.
Yes. I just wanted to -- and this is -- the area that you are is
within shouting distance of the Boys and Girls Club. And I
understand that when the new structure is finished, they'll be able to
accommodate perhaps 1,000 children. And shouting range is what I'm
concerned about.
Although the distance may not require a notification, or -- I'm
just wondering whether or not Toll Brothers is going to include in its
presentation and documents the clear fact that these exist so that
people can do their due diligence and not begin to come there and start
to complain about children that are being there. And that may be
inappropriate, but I wanted to get it on the record that that's important
Page 68
--~--,- '"",-'-
May 5, 2005
.,-~, I think to a lot of people.
Would you address that?
MR. YOV ANOVICH: Well, I mean, we understand that the
Boys and Girls Club was there first. And so is Animal Control. I
mean, they're -- when people come and visit the site, they're going to
drive right by them. They're going to know what their neighbor is.
So we don't have any plans to gloss over that so people are not
aware of what's going on.
COMMISSIONER MURRA Y: Due diligence is all I'm talking
about. And I think it's fair, because if Toll Brothers is usually upscale
-- I don't know if 1,600 feet is still going to be their standard for
upscale -- but people will want to eliminate the noise and it would an
highly unfair.
MR. YOV ANOVICH: We understand that.
CHAIRMAN BUDD: Other questions of the petitioner? Mr.
-"'-," Adelstein.
COMMISSIONER ADELSTEIN: Just curiosity point. Is there
any affiliation of any kind with Naples Heritage?
MR. YOV ANOVICH: Do we have any affiliation? No, none.
CHAIRMAN BUDD: Any further questions?
(No response.)
CHAIRMAN BUDD: Thank you.
Could we hear from staff, please?
MS. DESELEM: Hello again. For the record, Kay Deselem,
Principal Planner with the Department of Zoning and Land
Development Review.
I just wanted to make sure that staffs position was on the record
and that we -- you did know, as in the staff report, that we are
recommending approval, we are recommending that this petition be
found consistent with the Growth Management Plan. And we have
included one condition for one of the deviations, and that's reflected in
--..- our recommendation. As far as I know, the applicant is fine with that.
Page 69
...-., ----
May 5, 2005
- And I did send an e-mail yesterday, hopefully everybody got
that, to let you know that at the 11 th hour we did come to an
agreement with deviation number four, and staff is now supporting
that deviation. So we are supporting all of the deviations, including
number four. And then number two has a stipulation.
And if you have any other questions, I'd be happy to answer
them.
CHAIRMAN BUDD: Mr. Strain?
COMMISSIONER STRAIN: Yes. Kay, on your staff report,
Page 5 of 10 under your analysis, you have the environmental
analysis. You have item 2, which says, a meeting with Collier County
Stormwater Management Department regarding this project's impact
on the LASIP must be held prior to any SDP pre-application meeting.
Well, that's great that they can hold a meeting. But they can all
walk away disagreeing and this document doesn't address anything
that's supposed to come out of the meeting. Is there an objective to the
meeting that might be helpful to be stated?
MS. DESELEM: I truly don't know. All I did was reiterate
exactly what their recommendation was and include it. So I'm sorry,
but I really can't speak to that, because I don't know, I wasn't at the
EAC.
Perhaps their environmentalist, Mike Myers, can testify to that,
because I'm sure he was at the EAC.
COMMISSIONER STRAIN: Okay. Well, let me ask one more
question of you then --
MS. DESELEM: Certainly.
COMMISSIONER STRAIN: -- before we get in to him.
On your deviation number two, you refer to the Buckley mixed
use PUD, and that the fire code didn't allow something of a similar
nature in that PUD. And I guess that's the one you have a stipulation
on.
-"
Why did you pick the mixed use -- the Buckley mixed use? I
Page 70
-~._..- ~"'-
May 5, 2005
mean, this is a residential proj ect. I'm just wondering, is the
application meaning to be the same?
MS. DESELEM: No, it's the deviation itself for the distance, the
depth of the water excavation. That was the issue. The use wasn't
necessarily important, it was just I was identifying that staff had taken
a position on this deviation in another petition, and that was the
position that we had taken.
COMMISSIONER STRAIN: Well, wait a minute, you--
MS. DESELEM: However, as I said, we have now come to
agreement on deviation number four.
COMMISSIONER STRAIN: Okay, but I'm back on deviation
number two.
MS. DESELEM: Oh, I'm sorry. I'm sorry.
COMMISSIONER STRAIN: I understand you've used that other
places in your deviations. But the one I'm trying to figure out is the
fire staff review, did they -- are you saying that they're looking at the
same radius as they require for commercial for residential? Is that
what it boils down to?
MS. DESELEM: My understanding is it was the same
requirement, because it takes into consideration emergency vehicles,
trash vehicles, that type of thing that need to make those turning
movements. And they would be the same for either, fire trucks,
emergency vehicles, trash trucks. But we wanted to make certain that
this particular petition was in compliance with the fire code. That's
why we did include that stipulation.
COMMISSIONER STRAIN: Okay. As long as someone had
checked it. My -- then I guess my only remaining question I have is
that whatever point we can ask the environmentalist what that number
two meant, I -- thank you.
MS. DESELEM: Any other questions for me?
(No response.)
CHAIRMAN BUDD: Mr. Yovanovich?
Page 71
"---_._-
May 5, 2005
MR. YOV ANOVICH: At the risk of being confused, as an
environmentalist, I'm going to answer the question for you.
COMMISSIONER STRAIN: Nothing surprises me anymore,
Rich.
MR. YOV ANOVICH: The purpose of that meeting is that we
are basically at the headwater of the whole LASIP plan, and they
wanted to make sure. We came in, we sat down, showed them our
drainage system to make sure it was consistent with the LASIP plan.
And that's the purpose of the meeting. We know that if -- we can't just
go in there and say we don't agree, because we won't get an approved
water management plan for our project. So it was a coordination. The
purpose of that was for coordination.
COMMISSIONER STRAIN: Okay. That will work, thank you.
CHAIRMAN BUDD: Any questions for staff or petitioner?
(N 0 response.)
CHAIRMAN BUDD: Ray, do we have any registered public
speakers?
MR. BELLOWS: Yes, we have one speaker. Garrett Byron.
MR. BYRON: I'm going to waive.
CHAIRMAN BUDD: Okay, thank you. There are no other
registered speakers? I assume no summary comments by the
petitioner?
We will close the public hearing.
Do we have a motion?
COMMISSIONER STRAIN: Mr. Chairman, I can make a
lengthy motion to recommend approval for PUDZ-2004-AR-6192
with the following stipulations: Number one, it's consistent with the
EAC recommendations; number two, it's consistent with -- I'm sorry,
not consistent. We uphold the EAC recommendations and staffs
recommendations.
That deviation number four will be changed as modified most
recently by staff and as testified here today. That the side yard
Page 72
--~~-,._,.." -~_._-
May 5, 2005
setbacks for all structures will be a minimum of six feet. That the
language regarding height will be three stories, not to exceed 35 feet.
Maximum berm elevation in the -- surrounding the property will be no
greater than three feet. That the wall elevation in the deviation
requested will be based on a finished floor height not to exceed 13.5
feet. And that there will be a maximum of 20 feet in height for
element 2.9E, which was the fences and gates involving the entry way.
COMMISSIONER ADELSTEIN: I second the motion.
CHAIRMAN BUDD: Motion by Mr. Strain, second by Mr.
Adelstein.
Any discussion?
(No response.)
CHAIRMAN BUDD: There being none, we'll call the question.
All those in favor of the motion, signify by saying aye.
COMMISSIONER STRAIN: Aye.
COMMISSIONER ABERNATHY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER ADELSTEIN: Aye.
CHAIRMAN BUDD: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER MIDNEY: Aye.
CHAIRMAN BUDD: Those opposed?
(N 0 response.)
CHAIRMAN BUDD: Motion carries 9-0.
That concludes our public hearing. Is there any old business?
(No response.)
CHAIRMAN BUDD: Any new business?
(N 0 response.)
CHAIRMAN BUDD: Public comment?
(No response.)
Page 73
~---"^ ~.._.._"_""__.._a_,,,_.,_'_""'_""_' ....,---
May 5, 2005
CHAIRMAN BUDD: We're adjourned.
*****
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 10:46 a.m.
COLLIER COUNTY
PLANNING COMMISSION
Russell Budd, Chairman
.-
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM.
.... ~,'
Page 74
-_.....~._- -'...'---'-