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CCPC Minutes 08/18/2005 S August 18,2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION NAPLES, FLORIDA AUGUST 18,2005 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 Donna Reed Caron Lindy Adelstein Paul Midney Brad Schiffer Robert Murray Mark Strain Robert Vigliotti ALSO PRESENT: Ray Bellows, Zoning & Land Dev. Review Joseph Schmitt, Community Dev. & Env. Services Marjorie Student-Stirling, Assistant County Attorney Don Scott, Transportation Planning Page 1 .~"'_M__~_,,_,,_"_,____·~ø~·..__'._~_·m_"-"" AGENDA ".IU..,. COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, AUGUST 18,2005, 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 PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - Not available at this time 6. BCC REPORT- RECAPS - JULY 26, 2005, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. LDC Amendments Special Cycle 2a. 2005: An Ordinance Of The Board Of County Commissioners Of Collier County, Florida, Amending Ordinance Number 04-41, As Amended, The Collier County Land Development Code, Which Includes The Comprehensive Land Development Regulations For The Unincorporated Area Of Collier County, Florida, By Providing For: Section One, Recitals; Section Two, Findings Of Fact; Section Three, Adoption Of Amendments To The Land Developme,nt Code, More Specifically Amending The Following: Chapter 2 - Zoning Districts and Uses, including Section 2.03.07 Overlay Zoning Districts, Section 2.03.08, Rural Fringe Zoning Districts; Chapter 10 - Application Review and Decision-making Procedures, including Section 10.02.13, Planned Unit Development (PUD) Procedures; Section Four, Conflict And Severability; Section Five, Inclusion In The Collier County Land Development Code; And Section Six, Effective Date. (Coordinator: Catherine Fabacher) 1 B. Petition: V A-2005-AR-7444, Terry & Charlotte Rhodes represented by McGarvey Custom Homes, is requesting a 8'11" side yard variance on the east side property line in order to be able to replace an existing pool fence with a screen enclosure, thus causing an encroachment into the required 30 foot side setback. The property to be considered for the variance is located at 11230 Five Oaks Lane, and is further described as Phase I, Lot 64, Block E, of the Twin Eagles Subdivision, in Section 20, Township 48 South, Range 27 East, Collier County, Florida. (Coordinator: Carolina Valera) C. Petition: PUDZ-A-2004-AR-6084, Waterways Joint Venture IV, represented by Dwight H. Nadeau, of RWA, Inc., and Richard D. Yovanovich, of Goodlette, Coleman and Johnson, P.A., requesting a rezone from Rural Agricultural (A) and Residential Planned Unit Development (RPUD) to Residential Planned Unit Development (RPUD) for a project to be known as Bristol Pines RPUD to amend the existing PUD document and master plan for a residential subdivision to add land and units to allow for a maximum number of 292 residential units and recreational amenities. The project density is proposed to be 6.85 units per acre subject to the approval of the companion Affordable Housing Density Bonus Agreement, authorizing the developer to utilize affordable housing bonus density units (in the amount of 121 units at 3.0 bonus density units per acre) in the development of this project for low-income residents that will include a maximum of29 units designated as affordable housing units. The project consists of 42.61 acres and is generally located at 14750 Collier Boulevard on the east side of Collier Boulevard (CR-951), approximately 1 mile south of Immokalee Road (CR-846). Access to serve the project is proposed to be from Tree Farm Road in Section 35, Township 48 South, Range 26 East, Collier County, Florida. (Coordinator: Kay Deselem) CONTINUED INDEFINITELY D. Petition: PUDA-2005-AR-7152, Valewood Properties, LLC, represented by Bruce Tyson ofWilsonMiller, Inc., is requesting an amendment to the Planned Unit Development "PUD" Document and Master Plan to revise 21.74 acres ofland from Commercial to Residential use, allowing an additional 260 multi-family residential units. The subject property is located in Section 20, Township 48 South, Range 26 East. (Coordinator: Heidi Williams) CONTINUED FROM 8/4/05 E. Petition: PUDZ-2005-AR-7469. Richard and Frances Craig and CDN Properties, LLC, represented by Robert Mulhere of RW A, Inc., requesting a rezone from the Rural Agricultural (A) zoning district to the Planned Unit Development (PUD) zoning district to be known as Sonoma Oaks PUD, a mixed-use development consisting of a maximum of 112 residential dwelling units and 120,000 square feet of . commercial uses on a total of 37.5± acres. The subject property is located on the west side of Collier Boulevard, approximately 1/4 mile north of Vanderbilt Beach Road, in Section 34, Township 48 South, Range 26 East Collier County, Florida. (Coordinator: Heidi Williams) CONTINUED FROM 8/4/05 9. OLD BUSINESS 10. NEW BUSINESS 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 8-18-05/CCPC AgendaIRB/sp 2 August 18, 2005 CHAIRMAN BUDD: We'll call this meeting of the Planning Commission to order. Please join me and rise for the Pledge of Allegiance. (Whereupon, the Pledge of Allegiance was recited in unison.) CHAIRMAN BUDD: First item like to address is to make sure I've got the correct agenda. I've had an agenda that was replaced by another one that was replaced by another one, and currently I have an agenda that is marked Revised II that was e-mailed out on August 12th at 10:21 a.m. By chance, is that the correct agenda? COMMISSIONER MURRAY: That's what I have. CHAIRMAN BUDD: Does that sound, correct, Mr. Schmitt, called Revised II? MR. SCHMITT: The agenda I have is one that came in my packet and Ray is not here. CHAIRMAN BUDD: I've got that one and two more. COMMISSIONER STRAIN: And I don't even have that one. However you all decide, I'd sure like a copy of whatever we decide to use today. MR. SCHMITT: The one I have shows LDC Amendment Cycle 2A followed by Petition B, which is the BA2005-AR7-444. And then petition involving Waterways Joint Venture. CHAIRMAN BUDD: Yes. MR. SCHMITT: Petition Valleywood Properties and petition Craig Properties, Richard and Frances Craig CDN. This is the AR-2005 -- or AR-7469. COMMISSIONER ABERNATHY: That's it. MR. SCHMITT: We're on the same page. CHAIRMAN BUDD: All right. Roll call then. Ms. Caron. COMMISSIONER CARON: Here. CHAIRMAN BUDD: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Here. CHAIRMAN BUDD: Mr. Abernathy. Page 2 August 18, 2005 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 absent. Mr. Schiffer. COMMISSIONER SCHIFFER: Here. CHAIRMAN BUDD: Mr. Murray. COMMISSIONER MURRAY: Here. CHAIRMAN BUDD: Addenda to the agenda. Our agenda, just for clarification is not an addenda. Our agenda is clarified that PUDZ-A2004-AR-6084, Waterways Joint Venture IV has been continued indefinitely. So I just wanted to point that out. That's not a change. And also, there is a request by the petitioner on item D, that is petition PUDA-2005-AR-7152, Valewood Properties represented by Bruce Tyson has made a request to continue their petition. It's my understanding from the petitioner that they just met yesterday with the residents and given -- and request to have sufficient time to entertain that dialogue and see what changes might occur as a result of that dialogue and it would be inappropriate to continue today. On the other hand, because nothing is ever easy, it's my understanding that there are residents who have flown in from out of town and wish to speak on this item. And they have been advised by the county attorney that it would be appropriate and proper if this planning commission would hear them, allow their comments to be put on the record, but not take any action today. My personal response to that would be that I respect the county attorney's recommendation and certainly think we should do that if the residents so desire, but I would recommend against it because we hear so darn many petitioners, quite frankly, your message would be somewhat mooted or forgotten between now and whenever it is that we might hear your petition. But we do not wish to infringe on your rights, and if you wish Page 3 August 18, 2005 to make any representations into the record, I think we should hear those. So, between the petitioner and the residents, what are the thoughts? Or is there a request to anything other than to continue this petition? Yes, sir, Mr. Brooker. MR. BROOKER: Clay Brooker from the law firm of Cheffy Passidomo. We represent the Quail Creek Country Club. And I guess our only comment would be that, if it's possible could we get a representation from the petitioner this will be the only continuance requested, so that a lot of the other people who are flying in or coming to speak are in fact given some level of assurance, given the fact that we found out about this request about 5:00 p.m. yesterday afternoon. CHAIRMAN BUDD: Mr. Yovanovich, your thought on that request? MR. YOV ANOVICH: That's fine. And we're requesting continuance to your next meeting, so it's time certain. Excuse me. And we're not going to request, you know, the continuance, we just want to react to the information we heard yesterday. CHAIRMAN BUDD: Okay. (Whereupon, Commissioner Paul Midney arrived.) MR. YOV ANOVICH: Now, I just want you to know we had met with other groups long before yesterday. This was the first time we had a chance to meet with Quail Creek Estates and Quail Creek Country Club. CHAIRMAN BUDD: Our next regularly scheduled meeting. The first Thursday of September, September 1 st. COMMISSIONER SCHIFFER: Mr. Chairman? CHAIRMAN BUDD: Yes, sir. COMMISSIONER SCHIFFER: Just a question. Why are we continuing it again? This is the second continuance. CHAIRMAN BUDD: Because the residents just met with the petitioner yesterday. Petitioner feels that with less than 24 hours after that first dialogue, it's not enough time, and in the context of LDC Page 4 August 18, 2005 amendments we heard last night, that the dialogue was not finished and we're trying to render judgment, was incredibly frustrating, and I'd like to not do that on this petition. MR. YOV ANOVICH: And also, Mr. Schiffer, the first continuance was at the residents' request. They asked us to postpone so they can have some additional time to digest the information which we graciously agreed to. CHAIRMAN BUDD: Very gracious. Well put, Mr. Yovanovich. MR. ABERNATHY: Spare us the adjectives. CHAIRMAN BUDD: In any case, we've well served that any negotiations happen before it gets here and everybody is in agreement, life is good. That being the case, do we have a motion to continue this petition with Valewood Properties until September 1 st? COMMISSIONER ADELSTEIN: So moved. COMMISSIONER MURRAY: Second. CHAIRMAN BUDD: I have a motion by Mr. Adelstein, second by Mr. Murray. CHAIRMAN BUDD: Any further discussion? All those in favor say aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. MR. MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. MS. CARON: Aye. MR. MINDY: Aye. CHAIRMAN BUDD: Those opposed? COMMISSIONER SCHIFFER: Aye. CHAIRMAN BUDD: Motion carries. Petition is continued. COMMISSIONER ADELSTEIN: Mr. Chairman, I would like to bring up a motion in old business which is pertaining to owners Page 5 .-~,_._-~_._._".-_.".."---_..._--,._,"~_.- .-..-.',.^ August 18, 2005 notification. CHAIRMAN BUDD: Okay. Old business. MR. WHITE: Mr. Chairman. CHAIRMAN BUDD: Yes, sir. MR. WHITE: Assistant county attorney, Patrick White. Have you moved on beyond addenda to the agenda? CHAIRMAN BUDD: We're still making addenda to the agenda. MR. WHITE: Thank you. CHAIRMAN BUDD: So Mr. Adelstein has a request to modify the agenda to discuss owner notification under item nine. And Mr. Strain has some other requests for agenda. COMMISSIONER STRAIN: My first request is that we schedule some discussion on this agenda addenda. Agenda for discussion for continuance of last night's meeting to a time certain date. I know it's not on here because we just did this last night, but I'd certainly like to see it added to the agenda. CHAIRMAN BUDD: Would it be logical to add that under old business or item 8A, which is LDC cycle, a different cycle, but we'll have all the relevant parties here? COMMISSIONER STRAIN: Well, it might be because I have an issue with 8A that might involve the agenda. MR. SCHMITT: We have two different cycles -- CHAIRMAN BUDD: Distinctly different, but I'm thinking we should make them back-to-back discussion. MR. SCHMITT: I would recommend we discuss that first before proceeding in 8A, so we'll mark that 8A 1. I don't know. CHAIRMAN BUDD: Okay. MR. SCHMITT: That we proceed with that discussion first before we proceed with the next cycle. CHAIRMAN BUDD: So the schedule will be the first thing we discuss under advertised public hearings. MR. SCHMITT: Would be the continuation of the LDC hearing Page 6 -----"---"..,-.-...-,,"- August 18, 2005 from -- my only comment -- meeting from last night. My wife is going to kill me. COMMISSIONER STRAIN: You keep calling it a hearing. As part of that discussion I would like to discuss the fact that all of the -- all of 8A, the first one we're going to hear, which is the cycle 2A special, is not the second hearing. The back of that book is a brand new item that has not had a first hearing yet. So if you want to make sure we reschedule that at a time -- if you want to dovetail it into the one we're going to schedule on the 1st, that's fine. CHAIRMAN BUDD: Well, that will be our first item up. Any other addenda to the agenda? Okay. Can we have a motion that under item 9, old business we discuss owner notification, and as first item under 8A 1 would be the LDC schedule. Do we have a motion to that effect? COMMISSIONER MURRAY: So moved. COMMISSIONER ADELSTEIN: Second. CHAIRMAN BUDD: Motion by Mr. Murray, second by Mr. Adelstein. All those in favor say aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. MR. MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. MS. CARON: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed? The agenda is modified. Planning Commission absences. I will not be present at the second September meeting, September 15th. Any other planned absences? COMMISSIONER STRAIN: That's your last meeting, isn't it? Page 7 ".'·_'_"___·_"'_·.,_'·'-,_'_'__m'._ August 18,2005 CHAIRMAN BUDD: Not now. September 1st is my last meeting. COMMISSIONER STRAIN: That's what I mean. Oh, okay. So the party that everybody is planning has to be September 1 st. CHAIRMAN BUDD: Well, the party will be after I'm gone. Any other planned absences? Approval of minutes. There were none. Board of County Commissioners' report. No report. No chairman's report. We'll go into our item 8, advertised public hearings. The first item up is the LDC schedule as requested by Mr. Stain. MS. FABACHER: Good morning. Catherine Fabacher with Zoning & Land Development Review. We're discussing Special Cycle 2A, which was approached by the Board of County Commissioners. First two items are in response to the Glitch Amendments to the GNP you recall were heard before by you and were pulled from the last cycle, so we're going to try to pass those today. Because you know they had preceded the changes to the Growth Management Plan. CHAIRMAN BUDD: That was our item 8A as scheduled. We stuck something in front of it and that's Mr. Strain's continued discussion, which I think is tailing off of last night's meeting. COMMISSIONER STRAIN: Right. That kind of dovetails to what you said. And maybe I need a clarification because in reading what's on the agenda for 8A today, I see the TDR process is the beginning part of that, and I know we did discuss that before. But slipped into the back, unbeknownst to most people, are four pages. For the whole new concept for Collier County is removing growth density. I don't recall having seen that before. MS. FABACHER: No, sir, you haven't. COMMISSIONER STRAIN: Therefore, I want to make sure when we discuss the second reading, that this is the first reading for that, and that portion of what you're bringing for us in 2A is the second reading only for TDRs, and the first reading for the vesting Page 8 .'--'._.-'--~"--~"-.-- August 18, 2005 Issue. MR. WHITE: Mr. Chairman? CHAIRMAN BUDD: Mr. White. MR. WHITE: I don't recall this body ever having voted to have a second hearing on any of these matters. Now, certainly, I guess what Mr. Strain is suggesting is that maybe you should have one. But as to the TDRs, those, as you correctly understood, flow from matters that were previously continued and heard as part of Cycle One. Okay? So whether you're going to want to have a second hearing of those, whether we're going to use a new word in j argon form called reading, further confuse the matter between hearings and meetings, readings, I don't know, but my suggestion would be that we attempt as we did last night, to speak precisely about these things, and if you want to have a second hearing -- this is my opinion -- a continued meeting of those TDR provisions, even though it's not from a point in time, date time certain. It's a new advertised, it's a new meeting, and it's a first hearing, arguably of the TDR provisions, as well as what otherwise has been referred to as excess intensity. Okay? So they are a package being presented to you today. And if you choose to think of them as being before you for the first hearing, or a continued meeting for a first hearing, either of those would be true and legally appropriate. But, there has never been, to my knowledge, any determination made by this body as to either the TDRs or the excess intensity provisions that you want to have a second hearing. If you choose to do so today, that would require you to make a motion, second and have a majority vote. MR. SCHMITT: Can I add to make sure for the record you understand that this was presented to the Board of County Commissioners on the 26th of July at the Board of County Commissioners meeting. Just for the record, in order to have more than two LDC cycles a year, we have to request a special cycle. We requested that special cycle. That special cycle was approved by the Page 9 -------._>-----,,~,,_..._-.'_.- August 18,2005 Board of County Commissioners at that July 26th meeting, and at that meeting, we identified the subjects of that special cycle. One being the handling of amendments dealing with TDRs, and the other amendment dealing with the excess intensity issue. So that was publicly presented there in the Board of County Commissioner's hearing, and in the associated executive summary that was published as part of the public record, and identified as part of the public record. CHAIRMAN BUDD: Mr. Strain. COMMISSIONER STRAIN: Okay. For sake of argument, I believe this is the second discussion we're having on this TDR process here today before us. I believe it might be the first discussion we're having on the gross density issue that's before us. We have chosen in the past issues that have been problematic or first time through or early or for whatever reason, to have a second discussion on a possible issue. All I'm suggesting is that the TDR process today could be our final discussion, and that the second part of to day's meeting, or today's second cycle, whatever you want to call it, needs to have a second discussion after today because of the very limited amount of distribution that that one has had to affected parties within the county. MS. CARON: I would second that. COMMISSIONER STRAIN: Your attorneys can label it anything you want. CHAIRMAN BUDD: Mr. Strain, can we take that as a second motion from you that there will be a second hearing? COMMISSIONER STRAIN: I'm not going to use the word hearing again. Call it anything you want. MR. VIGLIOTTI: Meeting. CHAIRMAN BUDD: Second meeting. There will be a second meeting on this item, which we will pick a date and time, depending upon availability of everybody. COMMISSIONER STRAIN: And the vesting on the gross density issue. Page 10 August 18, 2005 MR. ABERNATHY: Why don't we hear it before we decide whether it needs a second hearing -- second meeting. CHAIRMAN BUDD: Given that, it's brand new to us and the public is largely uninformed, I guarantee you we need to discuss it at a future date to allow it to disseminate through the community. COMMISSIONER ABERNATHY: Is that a motion, Mark? COMMISSIONER STRAIN: Yes. CHAIRMAN BUDD: Yes, that's a motion by Mr. Strain. Do we have a second? COMMISSIONER CARON: Second. CHAIRMAN BUDD: Second by Ms. Caron. Discussion that there will be a second meeting. COMMISSIONER STRAIN: You want to call it a meeting, hearing or discussion? Let's just say discussion. We're safe with that word. MR. WHITE: I would suggest you're not safe, in fact, Mr. Strain. I'd suggest that you're injecting ambiguity. And I think the whole point of my comments is to try to bring some clarity and precision to this process so the public can be informed. COMMISSIONER STRAIN: What do you want us to call it, Pat? MR. WHITE: I think you should call it what it is. If you want to have a second hearing on it, please do. CHAIRMAN BUDD: Okay. That's good. Mr. Strain's motion is for a second hearing on this item. Ms. Caron, your second is confirmed on that? MS. CARON: Second. CHAIRMAN BUDD: Any discussion on that? COMMISSIONER SCHIFFER: I do have one. CHAIRMAN BUDD: Yes, sir, Mr. Schiffer. COMMISSIONER SCHIFFER: In the same ordinance, like Pat said, we're allowed to have a second hearing if we so decide, also states that it has to be in the evening. In other words, if we have one Page 11 August 18, 2005 meeting, it has to be in the evening. In other words, we have to air any change in the public's eye in the evening. MR. WHITE: I'm unaware of that, of the requirement of the LDC. You may be correct, Commissioner Schiffer, but the most we've ever had in anything, even use changing provisions have been one of the meetings only, not both, had to be in the evening. COMMISSIONER SCHIFFER: Correct. That's my point. I mean, you can't have one meeting in the morning and not meet the code. MR. WHITE: I don't believe that either of these would fall under the heading of what change uses in a particular zoning district. And in that sense, in my opinion, it wouldn't fall into that category, but there may be others who differ in that opinion. CHAIRMAN BUDD: Well, Mr. White, will that next hearing have to be properly advertised rather than a date certain picked right now? MR. WHITE: Yes. CHAIRMAN BUDD: Okay. Since there will be some time before that advertisement takes place, can we have an appropriate search and see if there is an evening requirement, and if so, we will schedule accordingly. And if not, we don't have a problem. MR. WHITE: Assuming that's the form of the motion, that's what we'll do, but. CHAIRMAN BUDD: Is that -- COMMISSIONER STRAIN: I'll accept that as an amendment to the motion. CHAIRMAN BUDD: Ms. Caron, you're in agreement? COMMISSIONER CARON: Yes. CHAIRMAN BUDD: Further discussion? COMMISSIONER SCHIFFER: I can give you that code section. It's old code, 2.7.2.3.4. It's disappeared in the recodification. CHAIRMAN BUDD: Okay. Any further discussion? Mr. Page 12 ..~.,,~...._~, .~_.."._.---_.-. --.- --- August 18, 2005 Schmitt? MR. SCHMITT: Just for the record, to advise this special cycle as approved by the Board of County Commissioners that as of September 13th, here in the regular agenda to the Board, and the September 27, second hearing to the Board, obviously if you choose to have a second hearing, those dates will change. And I want to make that known on the record, that we will not be able to -- if you choose to have a second hearing, which is your prerogative, I want to make it known that those dates on September 13th and September 27th, will most likely change. CHAIRMAN BUDD: Thank you. This is understood. Any further discussion? MR. ABERNATHY: So what? MR. SCHMITT: I just wanted to add it to the record. CHAIRMAN BUDD: There being no further discussion, we'll call the question, all those in favor of the motion signify by saying aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. MR. MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. MS. CARON: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed. (No response.) CHAIRMAN BUDD: We will have a second hearing. It will be advertised for a time and date certain. MR. WHITE: Thank you very much, Commissioner. CHAIRMAN BUDD: Now we'll move on to our regularly Page 13 August 18,2005 scheduled Agenda Item 8A. COMMISSIONER STRAIN: Do you want to-- MR. SCHMITT: First of all, before we get into 8A, do we want to talk and continue the meeting -- CHAIRMAN BUDD: That's correct. MR. SCHMITT: --last night's meeting, continue last night's meeting so we can make that discussion? Resolve that. CHAIRMAN BUDD: Yes, indeed. I forgot that, thank you for the reminder. We continued last night's meeting to today. MR. MURRAY: To today? CHAIRMAN BUDD: Yes. Our meeting that ran from 5:05 to approximately 8:00 p.m. last night was continued until this morning. And now we can pick a time, because last night we were not able to access the Board of County Commissioners boardroom schedule because it was after hours. Now we have that information available. Mr. Schmitt, what times and dates are available to us? MR. SCHMITT: We can continue with the date of September 21st and we can have this room from 2:00 p.m. on, if you choose to start at 2:00 p.m. If you want to start later, we certainly can. But this room will be ours from 2:00 p.m. on the 21st until whenever. And if we do not get through that, we will have to continue that meeting. We'll search for a follow-ups on date. CHAIRMAN BUDD: What is the pleasure of the Planning Commission? Do we want to start earlier in the day to give ourselves more time, or still hold to 5 :05 p.m? Mr. Schiffer? COMMISSIONER SCHIFFER: My concern again is, if there is a requirement, which I believe there is, that it's heard in the evening by items being first heard during the day, does not meet that requirement. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: I personally can't make the meeting at 2:00. I can make it at 5:00. CHAIRMAN BUDD: Okay. Mr. Strain. Page 14 ·_·"__~~"'."'M.·"·,. August 18,2005 COMMISSIONER STRAIN: That would then make the first and second hearing basically all the same day. We can second hear some of the things we talked about last night, but it would still be the first hearing for the rest of the items, which we haven't even seen the corrections from last night's ones yet, which I don't expect this morning. But on the same side of the coin, last night we got through 18 pages in the front and a few pages in back. So let's say 25 pages out of 200 in three hours. And last night, because of some of the defensive comments made, I believe they've got to be looked at more thoroughly not less thoroughly. And as a result I think it's going to take longer to get through the rest of those 175 pages now than it would have been otherwise. So, I don't know how we're going to get through this on the first hearing in one afternoon and go right into the second hearing in the evening. It's even, you know, past Brad's comment as well. If there's a requirement to do it in the evenings, we should do it in the evenIngs. CHAIRMAN BUDD: Mr. Strain, I don't think that when we reconvene on the 21 st, we have to complete our business on that evening. And that if we continue from there to another time, and it takes hours, days or weeks to complete, it takes whatever time it takes to complete the process. COMMISSIONER STRAIN: That's fine, if that's the way the Board would go. I know it was listed as our last hearing. That's what my concern was, if it's not going to be, then I have no problem with it. CHAIRMAN BUDD: Mr. White, would that be our last hearing or our next hearing? MR. WHITE: As to those matters, I believe you're only referring to those as meetings. I understand that there's a sense of concern on one or more of the part of the Commissioners today about some of this confusion. And what I would hope is that what is recognized is that my fervent intent to be clear and to recognize the value and importance of the distinctions we're making, rather than to find humor Page 15 -~--'-~"----"-'_.._.",. .. August 18,2005 in them. So I'm hoping we can treat this, you know, discussion with a degree of decorum I think is appropriate. CHAIRMAN BUDD: So with that, we will -- it sounds to me like there's a consensus that we should meet at 5:05 p.m. on September 21 st for our next meeting on the LDC2 cycle to continue the first discussion, first hearing on those matters that we did not hear last night. And then from that completion, either move into or reschedule future meetings, as appropriate, for the second reading and further discussion as time requirements may be apparent to us at that time. MR. ABERNATHY: Mr. Chairman? CHAIRMAN BUDD: Yes, sir. MR. ABERNATHY: It's unfortunate that our lawyer sitting here can't tell us whether it has to been at 5 :05 or whether it can be earlier in the day. Based on my six years, and you probably remember this as well as I, we have commenced these hearings at 5:05 and if they had to be continued, we took up at 8:00 or 8:30 having started at 5:05, we were told there was no requirement that we go from 5:05 to 5:05 to 5:05. That has not been the practice the last six years and nobody seems to have had any problem with that. I think we just hamstring ourselves if we keep doing this 5:05 stuff knowing that we can't finish anything in that amount of time. COMMISSIONER MURRAY: I agree. CHAIRMAN BUDD: I would agree, Mr. Abernathy. So, if there's not a legal requirement that we meet at 5:05 as a practical scheduling requirement, Mr. Adelstein has made clear that he can't meet earlier in the day. Are there any other Commissioners that cannot meet earlier in the day on the 21 st? COMMISSIONER STRAIN: Well, is there another day Mr. Adelstein can join us? COMMISSIONER ADELSTEIN: Any day but Wednesday. COMMISSIONER STRAIN: That may not be so hard. Page 16 --_.'._--~'-~'- ..-..... August 18, 2005 COMMISSIONER ABERNATHY: Well, he can join us at 5:05, there will still be plenty left. COMMISSIONER ADELSTEIN: I'll just layout the facts. CHAIRMAN BUDD: And I think that's true. And certainly, we clearly have a majority of Planning Commissioners available. Do we have a motion to meet on September 21st, 2:00 p.m. to continue to hear the LDC cycle -- COMMISSIONER ABERNATHY: So moved. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN BUDD: I have a motion by Mr. Abernathy and a second by Mr. Vigliotti. Discussion? COMMISSIONER SCHIFFER: I kind of agree because last night we did ask anybody in the public, we did hear what the public was here on for the evening, so I certainly think we honored these meetings on cycle one. MR. SCHMITT: Yes, we did. We met the requirement for Cycle One. COMMISSIONER SCHIFFER: Yeah, I'm comfortable with that. CHAIRMAN BUDD: Any further discussion? (No response.) CHAIRMAN BUDD: There being none, we'll call the question. All those in favor of the motion signify by saying aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. MR. MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. MS. CARON: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed? Page 1 7 .__.._-_.._"._-_._-~~._~_._--,.,.~ August 18, 2005 (No response.) CHAIRMAN BUDD: Motion carries. MR. MURRAY: If I just may, is it possible in the future that we could avoid having the Wednesday followed by the Thursday normal agenda? It really puts an inordinate amount of pressure in trying to read all of this in four to five days. COMMISSIONER ADELSTEIN: Bob, that came up at a meeting and Joe said he was going to take care of it. COMMISSIONER SCHIFFER: I know it did. COMMISSIONER ABERNATHY: But not this quickly. MR. WHITE: I'd just like to note for the record, I think Mr. Schmitt's comments regarding Cycle One were meant to be Cycle Two. MR. SCHMITT: Yes. MR. WHITE: Thank you. CHAIRMAN BUDD: Okay. Are we complete with all of the items and ready to hear LDC Amendment Special Cycle 2A? I think we are. Yes, ma'am. MS. CHUMBLER: Good morning, Commissioners. I'm Marti Chumbler, outside land use counsel for the county. And I'm here to talk about the first two items, the two TDR amendments, LDRs. And I'm now able to tell you that these are in fact implementing LDRs for Comprehensive Plan provisions, all of which have been adopted by the county commission. MR. WHITE: If I may interject momentarily, be a pest one more time. I'd just like to put on the record the Affidavit of Publications, which I have reviewed and found to be legally sufficient for the public hearing to proceed for Cycle 2A at this time. Thank you. I'll be turning it over to our minutes keeper. I apologize. CHAIRMAN BUDD: Thank you. MS. CHUMBLER: And Mr. Chairman, my intent since I have Page 18 --,.~._--,_.¥,~._.~_.,'--"---,-,,- August 18, 2005 been here and discussed these with the Commission previously, it's not to spend a great deal of time speaking of details, but to give a brief summary, and certainly address any questions that the Commissioners may have as to get approved. These amendments really relate to two different things. There's a few of them which relate to what we call Glitch Amendments to the Comprehensive Plan. But the majority of them implement those provisions of the Comprehensive Plan that deal with TDRs and what we now have as TDR bonus credits. So you'll see throughout these-- throughout both -- both of the first two of these LDRs, we've added the term LDR credits in conjunction with -- sorry. TDR credits in conjunction with the TDR bonus credits in conjunction with the TDR credits. As an example, on page two, and hopefully finally I have the same pagination that you do. If I do, it will be the very first time. You will see at the very top of that page existing language, CTDR credits, and then a new little Roman I, which deals with the creation of the TDR bonus credits of which there are three. There is an environmental restoration and maintenance bonus credit. It's created when a landowner, ascending landowner, who has several TDR credits from their property also chooses to take the extra step of placing a restoration and maintenance plan on that property. If you recall, they've already put it in a conservation easement. That's a requirement for getting the TDR credit to begin with. When we created, or when we adopted the TDR provisions to begin with, there was some concern that this property would be placed in the conservation easement. There was no requirement that they maintain it, and, therefore, it might became overrun with exotics. So this is a step to encourage people for that not to occur, and if they will take that extra step of making -- putting together a restoration maintenance program, imposing it and applying it to their property then, and following these steps -- and also given financial assurance that that maintenance is going to continue for the period of time that is deemed appropriate for that particular Page 19 August 18, 2005 property, then they can get one additional TDR, or one TDR bonus credit. Now there, I think last time was some question about how long a period of time this security would need to apply for. That's going to depend on the property. Some properties, it may take longer to reach a point where essentially nature is going to have an equilibrium, and you're not too concerned about the natural vegetation has come back and there's less concern about continued maintenance. That will be a fact -- that will be a situation-by-situation determination that will be made by environmental consultants in conjunction with the environmental division. The second TDR bonus credit that is created is a conveyance bonus credit. Conveyance bonus credits are only available if you have first put in place a restoration and maintenance program, and you then would get a conveyance bonus credit if you convey your property free of charge to a governmental entity. In other words, you are giving your property away to the county, to the state, to the water management district, to some governmental entity. That gives you one additional TDR bonus credit. The final TDR bonus credit, and this one was put in place to encourage people to begin entering into the program, is the early entry bonus credit. That bonus credit is available for a period of three years after the adoption of this LDR -- the effective date of this LDR, and goes back to any TDRs that were created were severed prior to the effective date. I'm not sure I know when I was here last spring there had at that time not yet been any TDRs credit -- created. I'm not sure whether any have as of yet or not. There have. Okay. So there are some now that have been created. And those would be entitled to get this early entry bonus as well. At the end of that three years, no more early entry bonuses can be created, but those people who have in fact gotten them, and you get a piece of paper that signifies that bonus, could continue to use them forever. As long as there is a TDR program. So it's like cash at that point anyway. Page 20 August 18,2005 All of those TDR bonus credits can be used in the same way that TDR bonuses, TDR credits can. They're worth the same thing. They're all worth one residential unit. They're worth five golf course acres, and I'll get to that in a few minutes. Not both, just one probably. And so that's the intent behind the bonus credits. There's a calculation here on page three of how you would calculate the number of bonus credits that would be created, if you're entitled to one. We have throughout added TDR bonus credits to make sure that the TDR bonus credits can be used the same way that TDR credits can. There is further -- on page five, further explanation of the bonus credits and how they're created. They're created just as TDR credits are through issuance of certificate by the county. And these county certificates will -- the TDR bonus credits will be identified in such a way that you can tell what TDR credit they're associated with. They will all have an individual and distinct number. If you also look at paren 2 on page five, you'll see that we've added a provision that if you -- if your property is being used as part of a mitigation program for the governmental entities that are listed here, the Army Corps, the US Fish & Wildlife Service, the Florida DEP, Florida Wildlife Commission, or the South Florida Water Management District, then the mitigation program that that government entity has approved of, will suffice as your registration and maintenance program. This is also language on a slightly different subject at the bottom of page six, in paren G, this was added to clarify that the county bears no responsibility to notify lenders or those who hold a security interest in property, that the property, that TDR credits have been severed and the property now is subj ect to a conveyance bonus -- or conservation easement, that that obligation falls squarely on the shoulders of the property owner. Before I move on to the next-- CHAIRMAN BUDD: Any questions or comments? MS. CHUMBLER: Are there any questions? COMMISSIONER SCHIFFER: Yes. Page 21 August 18,2005 CHAIRMAN BUDD: Mr. Schiffer. COMMISSIONER SCHIFFER: Yeah, one quick thing. Look on page three, our page three, and down at the bottom it's Roman numeral 6A. It says TDR credits nor early entry bonus credits. There's no way an early entry, or any bonus credit, would be available unless you had a TDR, correct? The point is, do we really need this? If no TDR credits are available, then essentially none of these others are available, correct? MS. CHUMBLER: Well, I think this was to be made clear. And you may be correct that it's redundant language, but, we just want to make it absolutely clear that if you have a preexisting conservation easement on property prior to severing the TDR, those two, the TDR credit and the early entry bonus are not available to you. One reason for doing that is, it's available. I mean, you may have -- for example, if you've got a TDR -- you've got property that you've severed TDRs from and now have a conservation easement, three years from now, even though that conservation easement is already there, the other two bonus credits still can be generated. The only two that are subject to that restriction, have no -- not being able to be generated if there's a preexisting conservation easement are the initial TDR credit, and the early entry. COMMISSIONER SCHIFFER: So the other two credits would be available? MS. CHUMBLER: They're available because -- well, remember for the other two credits, you first have to have severed your TDR. However, let's say I sever a TDR from a property I own as a descending land today, I've decided, you know what, I don't want to spend the money, or go get the loan or whatever I need to do the restoration and maintenance bonus today, three years from now I change my mind. The fact that I've already got a conservation easement on my property, doesn't preclude me then from choosing to take the steps necessary to get that restoration and maintenance bonus. Page 22 August 18, 2005 COMMISSIONER SCHIFFER: Okay. All right. Thank you. CHAIRMAN BUDD: Any other questions or comments? Yes, sir, Mr. Vigliotti. MR. VIGLIOTTI: On the restoration and maintenance bonus, you were speaking about the amount of time. Is that done on an individual basis, in approximately one year, ten years, five years? Do you have any -- MS. CHUMBLER: Bill Lorenz may be able to speak to this better. But, you know, I think when we originally talked about this, the sense was probably 25 years was a pretty good average. Is that right, Bill? But my understanding is it's really going to depend a lot on the property. If you've got property that's not heavily infested already, it might not take as long. If you've got property that's heavily infested and it's situated such where there's going to be a continuing problem with infestation, and other problems that may not just be exotics, then it may take much longer. OERP. CHAIRMAN BUDD: Other questions or comments? COMMISSIONER SCHIFFER: Let me jump back in again. The restoration benefit, it's going to be like fairly easy for like a farm land; isn't it? If someone had two pieces of land, one is totally wild, the other one is farmland, aren't they two different creatures, and would they get the same benefit for both? MS. CHUMBLER: Not necessarily. I mean, farmland you may have to do some planting there that's going to have to be -- we're talking about restoration. COMMISSIONER SCHIFFER: Okay. MS. CHUMBLER: It also may be that there's been some hydrological changes that have to be cured, too. So, again, it's going to be property specific. CHAIRMAN BUDD: Other questions? Move on. MS. CHUMBLER: The next provision has what I characterized earlier as the glitch amendments. There are in addition to this section Page 23 August 18,2005 or in this regulation, the addition of the concept of TDR bonus credits. I think the first change that bears some discussion is the bottom of page nine. There was a lot of discussion about this one when I was here in the spring. That relates to the use of TDRs and TDR bonus credits for golf course acreage. And I would recommend -- I notice reading it this morning, you know, I mentioned to Randy Cohen, you can read something 100 times and that 101 st time you see something you've missed each reading before that. I notice in reading paren 3, little Roman 21, that we had neglected to add the or TDR bonus credits. So, let's say under two Roman I where it says one TDR credit shall be required per five golf course acres, it should -- we should add one TDR credit or TDR bonus credit. The intent all along is those bonus credits could be used in the same manner as a TDR credit. The reason that this language was changed, or proposed to be changed in the first place, is because the comp plan, the way it's currently written, does say that the TDR credit and, in fact, the amended language adds TDR bonus credits, can be used to entitle five acres of golf course in the rural fringe. There was confusion about whether that meant that TDR credit, or bonus credit could also be used to entitle an associated residential unit. And so, I think as we were here before, we said, ultimately for the Board of County Commissioners there's going to be two options, the option of yes it can be used for both, or no it cannot. The recollection of staff was that the original intent was that it could be double used and that's the reason the language was drafted as it was. We have now received clarification from the Board, it appears that, in fact, their intent is that it not be double used. And that's why we are proposing that this language be amended, that everything beginning with TDR credit-- that at such time as be stricken. That's about little more than halfway down little Roman two, it begins at such time as the county approves golf course development, that that not be added. That the sentence before that should be revised to read, a TDR credit may not be used to Page 24 August 18,2005 entitle golf course development as well as dwelling units. TDR credit or bonus credit. To make it absolutely clear that you may not use it for both. You can only use it for one. COMMISSIONER SCHIFFER: Marti, for clarification. The version we have has a pink highlight X through that. MS. CHUMBLER: Right. COMMISSIONER SCHIFFER: Does that mean you're going to strike that whole thing? MS. CHUMBLER: Yes. Except for we need to add -- and I discussed this again this morning with staff. We need to add the sentence, or otherwise we've gone through this somewhat painful process without accomplishing what we intended to accomplish to begin with, which is to clarify this language. We do need to add in a sentence that very clearly says, a TDR credit and a TDR -- or a TDR bonus credit, may not be used to entitle both five golf course acres and a dwelling unit. That would be new language. COMMISSIONER SCHIFFER: Okay. I'm simple, I guess. Let's assume we wipe out that whole paragraph, and you're going to replace it with a sentence that says -- go ahead. MS. CHUMBLER: Well, we wouldn't wipe out the entire paragraph, just what's been marked off in pink. COMMISSIONER SCHIFFER: Well, that's what I mean. The pink stuff. MS. CHUMBLER: We would replace that with a sentence that says, a TDR credit or a TDR bonus credit that is used to entitle golf course development, may not also be used to entitle a dwelling unit. COMMISSIONER SCHIFFER: I got it. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: No. CHAIRMAN BUDD: Any other questions or comments? Okay. We'll continue, please. MS. F ABACHER: I believe we have -- oh, she's not finished. Page 25 August 18, 2005 MS. CHUMBLER: The rest of these are all items that are Glitch Amendments. There are some changes in the oil and gas exploration language that's made primarily to make the language consistent throughout the LDR's. There are some other languages, for example, under golf course to clarify what's intended by compliance with Audubon gold standard for golf courses. As you may recall -- and I'm on page 13 right now -- as you may recall there's a proposed language to reduce the green belt in north Belle Meade rural villages from 500 feet in width, but not less than -- an average of 500 feet in width, but not less than 300 in any given point to 300 feet in width on average, but not less than 200 feet at any given point. In fact, when we were requested to revisit that issue, we went back and found that in the eastern land, in the stewardship lands, this is the kind of green belt that's required for townships within the eastern lands. This makes the green belt provisions in the rural fringe for rural villages similar to that that applies in the eastern lands. Unless there are specific questions -- CHAIRMAN BUDD: Mr. Schiffer. COMMISSIONER SCHIFFER: Marti, and I'm sorry I have to go back to page three again. I'm still confused on that. Roman Numeral 6A, the example you gave was if somebody had sold a TDR, but reading in a sense -- MS. CHUMBLER: I'm sorry. Can you point me again? I'm not -- COMMISSIONER SCHIFFER: It's Roman Numeral 6A. And we discussed -- MS. CHUMBLER: On page? COMMISSIONER SCHIFFER: On page three. MS. CHUMBLER: Page three? COMMISSIONER SCHIFFER: Is it the intent that somewhere in the county where somebody already has a conservation easement or some restriction where they can't develop residential units, they can now come in with the bonus, the two bonuses, the conservation? MS. CHUMBLER: No, because a prerequisite of both the Page 26 ---_.,_..,,-~-_.---_..,.._._.'..- August 18, 2005 conservation bonus credit and the conveyance is that you first must sever TDRs from that. COMMISSIONER SCHIFFER: Right, that's what I thought. So the thing is, if you don't have a TDR credit, there's no way you're going to get any of these three bonuses. MS. CHUMBLER: Right, that's correct. That's a prerequisite for all three of the bonus credits. COMMISSIONER SCHIFFER: Then in the redundant language, why do we only point out early entry bonus credits? Why don't we just -- first of all, why don't we just eliminate that? Why do we need to say that? I mean, if you can't get a TDR, then you can't get a bonus. Obviously, if you got your TDR prior to this ordinance, you should be able to go back and get these bonuses. MS. CHUMBLER: Correct. And that's what we're -- we want to make sure there's no confusion. If we create a confusion, then we should write it a different way. But the intent is that someone who, you know, five or six years from now wants to get an additional bonus credit, they wouldn't have an early entry bonus available to them, but if they want the restoration or conveyance, the cost of the property has been under conservation easement for six years, they're not precluded from getting that bonus credit. COMMISSIONER SCHIFFER: Right. But they had already given away their TDR initially. MS. CHUMBLER: Right. COMMISSIONER SCHIFFER: So, obviously, you can't get two TDRs on a piece of land anyway. So that goes without saying. MS. CHUMBLER: Right. COMMISSIONER SCHIFFER: The concern I have is the way it's worded. It gives the impression -- let's say that somebody had donated, or something out there other than the TDR program could cause a conservation easement or development restriction, which has nothing to do with this program. What this looks like is, if you have a Page 27 ----..-'^"---,,----...--...-.- August 18, 2005 piece of land which has a conservation easement, or you can't develop residential units, you could go after the two bonuses, the environmental restoration and the conveyance bonus. MS. CHUMBLER: Well, if you look back at page two, little Roman two. COMMISSIONER SCHIFFER: Right. MS. CHUMBLER: It says TDR bonus credits shall only be generated from RFMU sending land property from which TDR credits have been severed. So that's a base requirement. COMMISSIONER SCHIFFER: Okay. So what if you changed an a -- neither TDR nor bonus credits, then I'd be safe that there's no loophole there? MS. CHUMBLER: Well, you've created a potential problem again for those people who come in, you know, four or five years from now to get -- I mean, at that point there would in fact be a conservation easement on their property. COMMISSIONER SCHIFFER: Right. But they've already satisfied the fact that there's a TDR. MS. CHUMBLER: But we're now creating another limitation. COMMISSIONER SCHIFFER: I don't see -- MS. CHUMBLER: This is a limitation on the creation of that unit. You can't at any time -- you know the TDR -- TDRs and TDR early entry bonuses are -- if someone came in after this was effective and sought to sever their TDRs for the first time, their TDR credit and their early entry bonus credit, would be generated at exactly the same time, Simultaneously. So it would be very clear how this conservation works. But let's say the person who is already -- I don't know who it is, but whoever has already applied for and received a TDR, they don't have a -- they can't -- that early entry bonus hadn't been generated yet because the land development regulation is not in place. As soon as this land development regulation goes in place, they'd then be entitled for the early entry bonus, but their property already has a conservation Page 28 August 18, 2005 easement. So we needed to make clear that that early entry bonus credit was not going to be precluded because their property already has a conservation easement on it. COMMISSIONER SCHIFFER: Right. But -- okay. I mean, I honestly think the way it's worded, somebody who is not even in the TDR program and has a development restriction or a conservation easement, can now apply for those two bonus credits. MS. CHUMBLER: Well, perhaps we can consider adding something at the bottom that says, you know, all other requirements for TDR bonus credits must be met, or something, if that's what your concern IS. COMMISSIONER SCHIFFER: Because I'm not concerned -- if the guy has a TDR, then ten years later decides to do the conservation, the two conservation easements, I can't see where that's confusing. CHAIRMAN BUDD: Does that suggested language address your concern, Mr. Schiffer? COMMISSIONER SCHIFFER: I think so. I just think -- and maybe it's just me, the way it's worded somebody could take a piece of land that's restricted for development and go for those other two bonuses. CHAIRMAN BUDD: Mr. Strain. COMMISSIONER STRAIN: Just for the record, I have strongly expressed my distaste for this entire part of our recommended changes to the TDR program. I've done it on record previously, and I'm going to save you all and the public the time of having to hear it again, so, but I still stand by my prior objections. CHAIRMAN BUDD: Further comments, questions? Any other presentation, Marti, or we're on to registered speakers? MR. WHITE: Can I make a suggestion? CHAIRMAN BUDD: Yes, sir, Mr. White. MR. WHITE: Perhaps, Marti, taking an opportunity to draft that text in handwritten version and we would be happy to share it with Page 29 August 18, 2005 Commissioner Schiffer at our break or before and maybe get something on the record prior to your vote. CHAIRMAN BUDD: That would be fine. MR. WHITE: Thank you. CHAIRMAN BUDD: Registered speakers? MS. FABACHER: We have one speaker for the TDRs. It's Nancy Patton. I'm sorry. We have more. MS PAYTON: Nancy Payton representing the Florida Wildlife Federation. And I'll be very brief. I agree with you, Mr. Schiffer, that there should be something very clear that conservation easements that were put on land prior to this program should be very clear that they're not entitled to any TDRs, whether they be base, bonus, or conveyance or mitigation. And maybe a simple sentence that says that would help clarify this problem because we don't want sending lands that are already protected to sort of double dip in this program. And the other comment I had is just a housekeeping one on page five, the very bottom, it's the Florida Fish & Wildlife Conservation Commission Just to get the name correct. That's it. Thank you. CHAIRMAN BUDD: Thank you. Next speaker, please. Mr. Anderson. MS. FABACHER: What's the name? CHAIRMAN BUDD: Bruce Anderson. MR. ANDERSON: Good morning, Mr. Chairman. I'm here on behalf of the Collier Building Industry Association. You may recall that that organization as well as the Florida Wildlife Federation and Collier County Audubon Society worked collaboratively on these TDR bonus amendments. They've continued those collaborative efforts, and the organizations support the staff recommendation. One correction -- I believe Marti misspoke when she was discussing the green belt change in width. It applies to all rural villages, not the rural village in North Belle Meade because a green belt is not required in North Belle Meade overlay. And lastly, I would share with you the Page 30 .,"--~,- August 18, 2005 news, if you don't already know it, that the Department of Community Affairs has published its notice of intent to find the TDR bonus amendments and all the other comprehensive plan amendments that were adopted at the same time to find those in compliance with the State Roof Management Act. Thank you. CHAIRMAN BUDD: Thank you, sir. Any other speakers? Mr. Mulhere. MR. MULHARE: Thank you. Bob Mulhere with RW A. I'm actually representing myself as a professional who's been involved in this process since the outset. Lord knows seven years ago, I think. I think one of the primary objectives of the TDR program was to provide a return, an appropriate return, to the landowners ascending lands who have restrictions placed on their lands. And I believe that the amendments that are proposed at this point in time will result in a market attraction for those TDRs and will result in landowners having the opportunity to get that return. And then the second objective of the program, that is the preservation of those sending lands will occur through that process. So I would encourage you to support this, and I thank you. CHAIRMAN BUDD: Thank you, sir. Other speakers? MS. FABACHER: I'm sorry. It's hard to say. They all put LDC Amendment 2A, so it's hard to know whether they're here for the intensity reduction or -- CHAIRMAN BUDD: Let's call them off and see if they want to talk. MS. FABACHER: All right. Coulombe. MR. COULOMBE: Nope. Not on that one. MS. FABACHER: Clay Brooker, Kathy Sellers and Rich Y ovanovich. CHAIRMAN BUDD: Mr. Brooker. MR. BROOKER: Clay Brooker, for the record. I was going to speak just very briefly on the excess intensity provisions only, and I Page 31 August 18, 2005 know you haven't reached that yet. And I speak as vice chair of Development Services Advisory Commission. We were unable to reach -- we had the same problem you guys did. We had Cycle 2 and Cycle 2A and about a three hour time period to try to review and we weren't able to get to this particular provision, the excess intensity. It's our hope and desire that before your second hearing, we will in fact be able to come back with our comments on that provision. CHAIRMAN BUDD: Okay. Thank you. We're not there yet, but thank you. other speakers? You mentioned a couple other names. Who were those? MS. FABACHER: Oh, I'm sorry. Cathy Sellers and Scott Coulombe. CHAIRMAN BUDD: Which he already -- Mr. Coulombe has already acknowledged it's on another item, and the lady has indicated the same. MS. FABACHER: Mr. Yovanovich. CHAIRMAN BUDD: Y ovanovich. Another item. MS. FABACHER: That's it. CHAIRMAN BUDD: Okay. Any questions, comments by Planning Commission? Mr. Strain? COMMISSIONER STRAIN: Yeah. I'd like to ask a question of transportation if they have a representative here. CHAIRMAN BUDD: No, but they have Don Scott. I'm sorry, Don. You didn't deserve that. MR. SCOTT: Thanks. Don Scott. COMMISSIONER STRAIN: Good morning, Don. This particular provision is going to greatly increase density in the rural areas. Has your department reviewed this? MR. SCOTT: Not that closely, no. COMMISSIONER STRAIN: Okay. Last night your department came forward with what, in essence, is a moratorium for areas of Collier County where there could be potentially deficit roads. The Page 32 August 18, 2005 rural fringe, if I'm not mistaken, has to exit this like everybody else through intersections that were identified last night, as deficient, or potentially deficient. You have not analyzed this to see what impact they have on those roadways, but seeing the severity of what was proposed last night, how could your department justify supporting this amendment not knowing the impact it's going to have on the very roads that you're trying to stop last night? MS. SCOTT: Well, I'm looking at it from the holistic picture. The east of 951 study that we're doing right now looking at everything that I'm going to deed out there based on the build-out study, which includes all of what they're talking about. Have I reviewed that petition specifically? No. Actually my involvement was probably more like a year-and-a-half ago, two years ago when all this, you know, the rural land started. The -- I mean, we have a lot -- I have a lot of projects out in the estates. I'm going to have a lot more in the future to address these issues. COMMISSIONER STRAIN: And I empathize with you. I understand what you're saying, and my point is simply that if we're in such a shape that we want to go back and try to stop things that have previously been approved, or limit them, then why are we not stopping them before they get approved? And this is a prime example. This is one that didn't need to be done right now. We could do it later when we have a better opportunity to understand the impacts. And in the meantime, there was a program in place that could have worked to some limitation if people wanted to spend the money to make it work. I know that's not your point, or your issue, but that's my concern is the impacts on concurrency as a result of these greater impacts out there. MR. SCOTT: Well, don't misunderstand last night's attempt either. Do I want to stop all those that were previously approved? No. I want to have the improvements in place when they were coming forward. That's what our intent was. COMMISSIONER STRAIN: Maybe the better reaction to that is Page 33 August 18, 2005 we have rezones coming forward. Instead of your department approving them, why don't we just say no for a while. Because they are discretionary until things change. MR. SCOTT: They are. COMMISSIONER STRAIN: Thank you. Ms. Caron. MS. CARON: I'd like to just follow up on that for a minute because the dirty little secret here is that it doesn't just affect the fringe area, it affects the urban area. These TDRs and TDR bonus credits can be done into the urban area as well. So your traffic is going to be impacted all across the board. CHAIRMAN BUDD: Other comments or questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Just talking to Mark a second. Mark, what we're trying to do here is create a way to get credits and I think this is a noble cause to get the credits. All four of them. It's how would they cash them in is where you're going to go control what you're concerned about. COMMISSIONER STRAIN: Well, get the credits. The intent is to use them. Are you telling all these people --let's go out and -- we'll encourage you to buy all these, but after you come in, we're going to tell you you can't use them for X number of years. In the case of US 41 East, for example, the DOT controls that. That was on the Habitat for Humanity project. They talked five to eight years before that's brought back into compliance. So here we are encouraging people to spend their money, invest, get their bankers involved, get lending institutions involved to buy the property and say, you know, that's great, but we're not going to let you use it for eight years. COMMISSIONER SCHIFFER: There may be parts of town they can't use it. There may be other parts of town where they're readily available. So maybe it's the future use of it that's really the value of it. MR. SCOTT: And you still have your concurrency rules that, even if somebody wants to do all that, you might not be able to go Page 34 August 18,2005 forward based on that. COMMISSIONER STRAIN: Quadrupling this is going to go make those concurrency rules a little further stretched than they already are. COMMISSIONER SCHIFFER: But, Mark, it is a two-step process. One generating it and the other one cashing them in. All we're talking about today is generating the -- COMMISSIONER STRAIN: Brad, I realized before today's meeting that this board has addressed this before and I was outnumbered each time. I realize that's going to occur today so I don't need to debate it with you. I'm simply making my statements for the record. CHAIRMAN BUDD: Further discussions? Questions? There are no other public speakers. Before we transmit, there was some consideration of, Marti, you were going to try to come up with some alternate language. Do you have that or do we need to take a break? MS. CHUMBLER: I'm trying to write it -- I'm trying to write it in a form that I can read. CHAIRMAN BUDD: Are you ready or -- MS. CHUMBLER: Let's see what I can do for you. CHAIRMAN BUDD: -- should we take a short break to allow you to wrap it up? MS. CHUMBLER: I think I can. CHAIRMAN BUDD: Okay. Take a shot at it. MS. CHUMBLER: Okay. How about adding at the end of -- this is on page three at the end of paren A, environmental restoration and maintenance bonus credits and conveyance bonus credits may only be generated for those RFMU sending lands where conservation easement or other similar development restriction that prohibits residential development was imposed in conjunction with the severance of TDR credits. MS. CARON: Say it one more time. Page 35 August 18, 2005 MS. CHUMBLER: Okay. Environmental restoration and maintenance bonus credits and conveyance bonus credits may only be generated from those RFMU sending lands where conservation easements or other similar development restriction which prohibits residential development was imposed in conjunction with a severance ofTDR credits. CHAIRMAN BUDD: Okay. Any thoughts on that modified language? COMMISSIONER SCHIFFER: Yes. I think it's going to make a really wordy sentence because you're repeating essentially the sentence prior to it. But as long as the intent is that unless they have a TDR -- but actually this sentence says they can't get a TDR. So what you're saying in this sentence is also saying is, you can't get two TDRs for the same piece of land. I think this is confusing the way it's written, but as long as it's clear it doesn't pass here without the intent you can't get these TDR -- or these credits on non TDR properties. MS. CHUMBLER: The intent is to say that the only conservation easements that we're going to allow there to be on property for environmental restoration or conveyance bonus, is that conservation to the easement that was imposed when the TDR was first severed. Back whenever that occurred. CHAIRMAN BUDD: Sounds like we're there. It doesn't have to be entertaining reading, it just has to be clear. Any other thoughts or comments? Now, are we -- is our appropriate action to hear this again at a specific meeting or trans -- refresh my memory. Where are we? MS. CHUMBLER: Well, I think that's probably at your discretion, but it has in fact been heard before, so this is at least the second reading of this one. COMMISSIONER STRAIN: We've beaten this one pretty good. CHAIRMAN BUDD: Okay. This would be a recommendation to transmit? Page 36 August 18, 2005 MS. CHUMBLER: Yes. CHAIRMAN BUDD: Okay. If we're in agreement, do we have a motion to that effect? MS. CHUMBLER: A recommendation to the BCC. CHAIRMAN BUDD: Recommendation to the Board of County Commissioners. MR. WHITE: For adoption. MS. CHUMBLER: For adoption, right. There's no transmittal for TDR. CHAIRMAN BUDD: Okay. Recommendation to the Board of County Commissioners for adoption. Is that your motion, Mr. Schiffer? MR. WHITE: For the finding of consistency with the comprehensive plan under its notice of intent. CHAIRMAN BUDD: You have that finding, Mr. Schiffer, in your motion? COMMISSIONER SCHIFFER: Yes, I do. CHAIRMAN BUDD: Okay. Very good. MS. CHUMBLER: Mr. Chairman, I'm reminded that we need to add in that motion what the other changes have being noted both by myself and by, I believe, Ms. Payton. She suggested a corrected title for the gain commission. COMMISSIONER ADELSTEIN: As noted. CHAIRMAN BUDD: And a second by Mr. Adelstein. Discussion? COMMISSIONER STRAIN: I win be voting no on this motion because, as acknowledged, transportation concurrency issues have not been merited out on this issue. And I believe there are other concurrency issues that this win interfere with to a point where they win became more of a detriment to the taxpayers of this county than a positive. CHAIRMAN BUDD: Further discussion? Page 37 August 18,2005 (No response.) CHAIRMAN BUDD: There being none, we'll call the question. All those in favor signify by saying aye. CHAIRMAN BUDD: Aye. MR. MURRAY: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed? COMMISSIONER STRAIN: Opposed. MS. CARON: Opposed. COMMISSIONER ADELSTEIN: Opposed. CHAIRMAN BUDD: And that would be Ms. Caron and Mr. Strain in opposition. And who was the third? COMMISSIONER ADELSTEIN: I was. CHAIRMAN BUDD: Mr. Adelstein. Motion carries six to three. All right. Our next agenda item. MS. FABACHER: Okay. Our next agenda item would be what we're calling the excess intensity. Margie, did you want to explain? MS. STUDENT-STIRLING: Yes, I'll -- excuse me. Yes, I'll explain. For the record, Marjorie Student-Sterling, Assistant County Attorney. And this ordinance was prepared at the direction of the Board of County Commissioners. And it is to address the situation that I'm sure that you've heard many times come up in hearings on rezones about some of the density out there being taken up by already built out PUDs that may not have developed to their authorized number of units, but have developed because of the market conditions or otherwise to less than that. So, in our view, it's a process oriented approach to get rid of those excess units that are not going to be utilized, and this approach very closely follows what the county did Page 38 August 18, 2005 many years ago in our zoning reevaluation ordinance where we had compatibility exceptions. And I'll just kind of walk you through this. First of all, there's a definition of what a built-out PUD is. And that's the situation where the resident's already constructed or, and received a CO and so forth, or is under construction pursuant to a validly issued building permit, or you have a platted subdivided lot which plat has been lawfully approved by the Board of County Commissioners. We don't want to get in a situation where someone owns the lot but it hasn't yet been built on and it's a platted lot taking their ability away to build their home. So, we want to make sure that that was addressed. The process would be that the staff would study the PUDs by zoning district. And before in the zoning reevaluation ordinance there were 12 planning communities that were established. And I want to point out that Marco Island is one of those planning communities, and I left the reference into 12, just in case that planning community has some area that's still within the county and not within the boundary of the City of Marco Island. Then there would be an opportunity for planning staff to evaluate the different PUDs and the different planning communities to determine which ones are built out and which ones have excess density that needs to be removed. There would be a notice to the Master Property Owners Association, and then there would be notice to all the property owners that own property within the PUD giving them an opportunity to come in and voice any objections that they have to staff as to the removal of this excess density. So that's the first process. That would be done on a planning community -- by the planning community basis. The next process would be the actual rezoning process where the units would be reduced. And of course they would be duly advertised. And we are not going to have the requirement for a neighborhood information meeting. And also there's another change that just came about in talking this over with staff. We would not have the Page 39 August 18, 2005 requirement for the posting of signs, but all the other requirements would have to be met. And then there would be the ordinance or ordinances presented where the density would be adjusted as well as the number of units. Because if the number of units is reduced, that would result in a change in the density. There's also a provision here where individuals, if they feel they have a vested right or a takings claim, that they can utilize our local processes under section 902 of our land development code. So, the idea this is filled with processes to give property owners at every turn the ability to come in and voice their objections or concerns, and if they feel that they have a vested right or they're takings issue, there's another process that they can avail themselves of. There are also some exemptions in here. For example, if there is a PUD district that is tied to a development of regional impact, developments of regional impact have a date until which they get to develop before the local government could down zone them. And I'm also adding a provision on further thought that includes the termination date. Because developments of regional impact have termination dates in them. And, so, we wouldn't be involved in any of those PUDs until either one of those dates were achieved. Of course built-out PUDs that have developed to the maximum number of dwelling units authorized by the regulations, that sort of goes without saying. That they would be exempt. And then also PUD zoning districts consisting of residential dwelling units which have been determined to have a vested right under our vesting provisions, would be exempt. And also the situation such as Pelican Bay. And that's the only one that I know of in the county. But that is where you have a master association that has retained development rights in the association. And I don't know if there are others, but that would certainly be part of the staff review. So, those are the exemptions. Also, there's a provision here where if a PUD has not yet been turned over to the Master Property Owners Association, that the Page 40 August 18, 2005 ONUS would be upon the developer at the time of turnover to come in and process an amendment to the PUD that reflects the actual number of units that either have been built, or the actual number of subdivided lots, so we could adjust that number accordingly. And I spoke a bit with Mr. Y ovanovich about this provision and he explained the turnover happens incrementally. So we would want to include some language that addresses the final turnover, or the final -- or the turnover of the final phase to the Master Property Owner's Association. And then the other portion of this is that new PUDs and PUDs coming in for amendments would need to include what you have in your language now as expiration date, but staff thought it was better to include the language of a build-out date. So we're changing -- where you see expiration date, it would be build-out date. And to put in the PUDs, so there's some certainty as to the life of this thing and how long it has to develop. And, of course, the developer would be free to come in at any time to amend the PUD, and extend that date. And there's also some clarifications of what a property owner could do after that date passed. And of course they could remodel, rebuild or make additions to their residence, and it doesn't affect their right again to build on a platted but unapproved lot, if they haven't yet built on it. And I see the transportation folks are here, but again, as I had stated, the idea of this is to take away the phantom units that get calculated in the checkbook concurrency system that might otherwise hold up a project that don't -- that if this is done, they can be deducted out of these units and free up density or number of units for another proj ect that would be coming in. COMMISSIONER ABERNATHY: Russell? CHAIRMAN BUDD: Sir? MR. ABERNATHY: Marjorie, the capture of these units that you outline in paragraph 8G7 on page 23, where the planning staff initiates an amendment -- Page 41 August 18,2005 MS. STUDENT-STIRLING: Right. COMMISSIONER ABERNATHY: That is going to come through the CCPC and the BCC. MS. STUDENT-STIRLING: Yes, it would. COMMISSIONER ABERNATHY: Okay. MS. STUDENT -STIRLING: And how -- I'll just explain. MR. ABERNATHY: Affected property owners would be able to contest at that point? MS. STUDENT-STIRLING: Absolutely. And again, that is for a situation -- and I'm just going to use an example of where I currently live, and it's in an older PUD. But in Lely, and in Lely, there's a master association and then there are condo associations and homeowners associations under that master association. And the thing has been built out. There's no developer involved anymore. It's the property owners themselves and the property owners association. And I have identified that situation again. What I call the Pelican Bay situation where the association and perhaps in concert with the developer still, has retained rights to those residential units. CHAIRMAN BUDD: Anything else? MR. ABERNATHY: That's it. CHAIRMAN BUDD: Other questions on this item? Mr. Schiffer. COMMISSIONER SCHIFFER: Margie, first of all, the intent is to really drop them from the concurrency management system, right? Why don't we just drop their vested rights, rather than go through and take out all the units that they're allowed to build, why don't we just drop their vested concurrency? MS. STUDENT-STIRLING: Well, I'm not quite sure how that would work. I mean, this is a predictable process. You have something in the ordinances that a person can look at and state, this is how many units that -- you know, it reflects how many units are actually on the ground. COMMISSIONER SCHIFFER: I mean, I can understand why Page 42 August 18, 2005 we want to clean up the slate so we know exactly how many units will be in there. The thing about the master association getting the ownership of the units. When the Waterside Shops were renewed, WCI, which is the developer, owned the units. MS. STUDENT-STIRLING: I said it could be in combination with the developer. I think it says or like entity. And we would-- COMMISSIONER SCHIFFER: Yeah. The concern I had about that in that case, that had commercial property on it. And with the smart growth of things we've been studying, maybe somebody would want to revise these commercial areas and use these units. So while it would appear there's no need for them, in the future there may be a need for them. MS. STUDENT -STIRLING: Well, I think that in that case it wouldn't affect those -- that type of situation where they've retained an interest in the unit, and the residential units. If you're saying that they would want to switch out from the commercial and use that for residential, that would probably engender a PUD amendment anyway. And if anybody wanted to come in and change anything, they're free at any time to come in and amend their PUD. COMMISSIONER SCHIFFER: Another question is, we're only dealing with dwelling units? MS. STUDENT-STIRLING: That's right. We're not dealing with industrial/commercial. And there are a couple of reasons for that. I haven't made a study for all the PUDs, but I've reviewed a good number over my time here with the county. And my recollection is, there's not that many that specify a maximum gross leasable floor area. And usually the -- and where it doesn't, the footprint's arrived at by leasing out your setbacks and your buffering and preservation and so on requirements. So number one, it would be hard to make that type of amendment. Number two, commercial and industrial are dynamic. They may need to enlarge their building, or do something to meet market conditions, and having to come through a PUD amendment Page 43 August 18, 2005 process, could be onerous. And we have an economic development council here in the county who's actively trying to encourage industry and commercial to come to Collier County and to put an -- I think that would just be perhaps a further disincentive. So those are reasons why they're not included. COMMISSIONER SCHIFFER: Do we carry phantom square footage? MS. STUDENT -STIRLING: I would have to defer to the folks in transportation. COMMISSIONER SCHIFFER: Another question. Just going down on page 20, it's 8A, the last paragraph in there, isn't that essentially the reason why we're doing it? We want to put that in the statutes, or? MS. STUDENT -STIRLING: It's under purpose and intent. And as the purpose and intent explains the reasons why you're doing something. COMMISSIONER SCHIFFER: Okay. That's it. Thank you. CHAIRMAN BUDD: Mr. Murray? MR. MURRAY: I'm going to pass on it. Thank you. CHAIRMAN BUDD: Other questions? Mr. Strain. COMMISSIONER STRAIN: Yes, I have a few. Catherine, did this meet the deadline submittal for those amendments to your office? MS. F ABACHER: I cannot recollect that this particular version did, but one version did. COMMISSIONER STRAIN: One version did, but you don't know if this one did. MS. FABACHER: No. COMMISSIONER STRAIN: Okay. Can anybody tell me when was this distributed to the business community, the building community and other members of the community that would be mostly affected by this? MS. STUDENT-STIRLING: Commissioner Strain, there were Page 44 August 18,2005 two workshops that the Board of County Commissioners had. My recollection is, one was in December of 2004 and there was another in April of 2005. And an earlier iteration of this was made part of that workshop. And then in the later iteration was made part of the workshop in April. COMMISSIONER STRAIN: Then maybe someone could tell me, when was this document distributed to the business community or development community, development community, since they are the people most affected by this? When was this document given to them for review so we can have the benefit of their input today? MS. STUDENT -STIRLING: There's a date of July 26, 2005 on the notebook when it was available for distribution; is that right, Catherine? MS. FABACHER: Right. MR. SCHMITT: I need to question. We normally -- I mean, we do not have a process where we distribute to the business community. We have a public notification. We have a public meeting and review process. The public, if you want to call it public unveiling was at the Development Services Advisory Committee meeting where we presented the first version of this. That meeting, Catherine was -- when was that? MS. FABACHER: August 3rd. COMMISSIONER STRAIN: Joe, my concern is that this is a very substantial issue. MR. SCHMITT: I understand. COMMISSIONER STRAIN: We are taking units that were approved in one of these hearings in the past and now telling the developer who may have used those for lending institutions or whatever, and saying we're going to take those away from you if you don't use them. I don't know if that's the right way to approach this. A better way may have been not to provide those in the first place. But in regards to that I'd like to ask how this -- how this gets around the Page 45 August 18, 2005 Burt Harris claim because you're basically taking away someone's right that they had prior to this. MS. STUDENT-STIRLING: Well, again, this applies to a situation where -- I don't think a developer is involved anymore. Because this is where the PUD is built out. And you have a master association and property owners. And, for example, if you want to use the Lely example, and you can travel, what I call old original Lely. I think it's called Lely Golf Estates or Lely Golf and Country Club, there's no developer involved at all. The homes are all built on platted and subdivided lots where if somebody didn't build a home, they have a vacant lot that they still have the ability to build on. And everything has been built and there's no developer anymore and we're not taking any right away from anybody. Because if it's a multi-family tract, the multi-family has all been built and under the control of a condo association. If it's a single family lot in a subdivision, it's either been built on or it has a vacant lot, and vacant lots are protected, so, and the developer is out of the picture. It's just property owners. COMMISSIONER STRAIN: So then you don't mind stipulating somewhere in this document that this only applies to developments, PUDs, DRIs, or whatever with the exception, obviously, not taken into consideration. But it only applies to projects that have been turned over to master homeowner associations. MS. STUDENT-STIRLING: We have the definition of built-out PUD here. And we do have the one situation, and this is for administrative ease so the county doesn't have to keep continuing to study these areas that now, prior to turnover, and we could craft some language of maybe turnover to the final phase. The developer would come in and process a PUD amendment that would reflect the total number of units that have actually been constructed or they've platted and subdivided lots for because I don't believe the developer would be turning it over to the association, unless, you know -- obviously the condos have to be built and people have to be living in them for there Page 46 August 18,2005 to be, you know, an association that's been -- having the development turned over too. And in the homeowners platted lot situation, there obviously has to be the platted lots and residents constructed and people living in them for the developer to release their control and turn it over to the association. So that's why I don't believe there is any problem with, you know, with developers, per se. And that -- that one situation is covered in there for administrative ease of the county so the county doesn't have to continue to do this study. COMMISSIONER STRAIN: The example of course that comes to mind is the Waterside Shops, and where I think this issue may have started. The developer there is, for the most part, built out, or close to being built out at least. And the excess density that was there was used to offset traffic impacts to move commercial. The excess density theoretically was built into the system, therefore they were having a positive impact on the system. But it seems to me that if you've got a value in a number of units assigned to a project, that to unilaterally take those away from the developer, to me would seem like you're doing some kind of taking. And I know where your position is on it, Margie, I just heard it. I would wonder if Richard Y ovanovich would mind lending comment to it since he does deal with Burt Harris claims as well and then we can hear both sides of the story. If Richard could come up. If you don't mind. MR. SCHMITT: Mr. Chairman, are we now asking for public speakers? COMMISSIONER STRAIN: No. I'm exercising my ability to ask someone from the audience who is willing to speak on a matter. CHAIRMAN BUDD: My opinion on this is just as he has, Mr. Strain asked Don Scott some questions a minute ago, he's asking Mr. Y ovanovich some questions as part of the Planning Commission Interrogatories and questions. But I shouldn't say Interrogatories. That's a legal term. Questions. COMMISSIONER STRAIN: Richard, I was just wondering from Page 47 August 18, 2005 a Burt Harris perspective, do you see any problems with this? MR. YOV ANOVICH: Well, and I did register to speak and was probably going to raise that as an issue. I do think that there is -- you have some rights in what you have gotten approved, and you've given some things to get those approvals. And to unilaterally take those away from the developer, I think you've got some problems. I don't think the county has the ability to just unilaterally amend a PUD to say, you know what, instead of there being 600 units, there's now 500 units. I mean, the PUD is a deal that's struck between the parties. And the county can't unilaterally take that away and I think that is a property right that's being taken away from the developer, and I do think you've got some issues that may result from that. And I've got other comments that I'll make to the document. COMMISSIONER STRAIN: I just wanted to get that point from you. And then I've got both sides of the issue from two attorneys on each side. MS. STUDENT-STIRLING: I want to point out that again, Mr. Y ovanovich said the developer. This is not a situation involving the developer anymore. And furthermore, yes, the developer is part of the PUD process. There were some issues about things that they gave up to get the units. But when they built the PUD and it's built out, they built the number of units that they chose to build and platted and subdivided the number of lots that they chose to plat and subdivide under that PUD. And if it's somewhat less and the developer is out of the picture, I don't -- I can't imagine a homeowners association or a condo association coming in and saying, well, in this development our PUD originally said that we had, you know, 300 units but there's only 275 that were built, and that's taken up all the dirt, if you will, in our development, and you've taken away a right from us. Because the developer is not involved anymore. It's the homeowner, individual homeowner or the association. COMMISSIONER STRAIN: Thank you, Margie. I'd like to go Page 48 ---.,-- August 18, 2005 on and work in other questions, I'm sure I'll have more questions after Richard gets up here later. Part of the basis for this seems to be that once the building, or the project is built out, there will be no change in the future. As we saw in Pelican Bay, even though something was built, there were changes in the future. And I have seen developments that come in for a plat for a single family subdivision get approved, actually put the infrastructure in, then decide the market is changing by the time they get through all that effort and process to multi-family and they rip out all that infrastructure, come in for a plat, change the plat to an SDP and put in multi-family. How do those exceptions fit into this category as the future rolls on and the market conditions change and things like that? MS. STUDENT-STIRLING: Well, again, this would be a case where the developer is no longer involved and it's in the homeowners and the property owners association. And the homes would have been sold and the lots would have been sold, or the condo units would have been sold, and they are occupied by the people that purchased them. So I think the scenario that you point out, we're beyond that scenario now because it's strictly the property owners and the homeowners association. And the only scenario I can imagine is if a developer wanted to come in and buy up a number of lots that had houses on them and redevelop or buy up an entire completely built-out developed condominium project and redo it. I haven't seen it that much here. I've seen it with some smaller ones. That scenario could happen, but at the same time they could come in, and probably have to come in, to amend the PUD. Probably would want to come in to amend the PUD to do what they want to do. But, again, I haven't -- that would be a redevelopment scenario, and I have not seen it that much in the county. COMMISSIONER STRAIN: Well, in the scenario you just talked about, Margie, they would come in to do their PUD, but they would come in saying that they have excess density of say, 1,000 Page 49 August 18, 2005 units. And by redoing their PUD and reducing it to X by -- they actually have a positive impact on traffic, and they can justify the redo of the PUD. In that scenario, wouldn't you agree that those ghost densities, or those unused densities at that point have a value to the developer? MS. STUDENT -STIRLING: Well, I don't think it's necessarily the case because the developer would have purchased the property from the homeowners knowing the amount of units that are on that property, that have been actually built, or have platted lots. COMMISSIONER STRAIN: With the intent of maybe redeveloping it. MS. STUDENT-STIRLING: And that would affect the price that he would pay. That's, you know, the number of units. And if you wanted to do a redevelopment stream, then he could come in and amend the PUD. COMMISSIONER STRAIN: A lot of this is coming about from a statement I read. I think it's the second paragraph. It says, these processes are necessary to enable the county to plan effectively for realized transportation impacts to be evaluated by the concurrency management system. Now, it was our understanding by presentations of checkbook concurrency that all the prior approval in the county would be taken into consideration and evaluation of checkbook concurrency. Now it seems we're finding out that either they haven't been, or now that they are, they don't like what they're learning, or that we've over approved things since then, now we're going to go back and fix the system by taking things away from people we've previously given things to. MS. STUDENT-STIRLING: I think I have to defer to transportation. MR. SCOTT: Don Scott, Transportation Planning. That's not really the reason why it's coming about. COMMISSIONER STRAIN: Okay. Then why don't you tell us. Page 50 August 18, 2005 MR. SCOTT: Let's take a development that's turned over to the homeowners off of Goodlette, I think it's called Wilderness. There's 300 extra units in there that are essentially running around the system right now. Not only in the concurrency system, but in the long range transportation model. And nobody in there wants the units now. The opposite thing that could happen, based on the fact that the property values are going up so much, someone might go in there and buy the whole thing out and then put the units in there. Is that what we want? I don't know. I'm not really complaining that -- actually, I'm not complaining from the concurrency thing, I'm actually complaining from the long range transportation model, because I think the model is better if I can do that. Why am I not complaining from the concurrency side of it? So I have a few more trips in there. So it's a little bit of a cushion in there. You know, that part of it, it's probably not so bad. But from a long range transportation modeling thing, it would be nice to get -- you know, from one of our aspects of it, I noticed this way before the concurrency side of it when we were doing the Vanderbilt Drive corridor study. You start looking up and down the corridor and it's four units here, ten units here, 20 units here that, when you talk to anybody in the neighborhood they say, we're all built out. We're turned over to the association, but here we are with the units still hanging out there. COMMISSIONER STRAIN: Don, in your relationship to concurrency in the example you just provided, I think it's Goodlette, or wherever it was, those 300 units, why weren't those figured in the system from the get-go? MR. SCOTT: They are in the system. COMMISSIONER STRAIN: Okay. So now you're trying to get them released from the system? MR. SCOTT: That's right. COMMISSIONER STRAIN: Another statement in this document Page 51 August 18, 2005 says that you're doing this -- not you but somebody -- so that an orderly process of land development may continue in predictable sequence with manageable confidence levels. What is it when we do PUDs? That is an orderly management -- orderly system of development. It's a rezone in this county that meets the most stringent criteria. Why is it that if there's excess in those PUDs, we don't strike it through your processes and review processes of all the county departments when it comes in instead of now after the fact and then we risk the situation of taking from an individual property owner? MR. SCOTT: I can't answer for some of those that were approved 20 years ago. I have a hard time doing that. But now I think you're pointing onto one thing that is happening now. Even if someone comes in here and says, I want to put 1200 units on there, you go, not 1200 units, thank you anyway. COMMISSIONER STRAIN: I agree with you. The process that's in place today is taking care of the issues that probably should have been taken care of a long time ago. My concern is now that we're going to go back and take things away that may -- we may even be in a bigger mess by taking them away. MR. SCOTT: It's not a simple process if you're on the other side. Do you want to give up something that was given to you as a right? Probably not. COMMISSIONER STRAIN: I think the chairman wants to take a break. I've a few questions after that so. CHAIRMAN BUDD: We will take a ten minute break. (Whereupon, a brief recess was taken.) CHAIRMAN BUDD: Okay. We will reconvene the Planning Commission. Mr. Adelstein, did you have some comments or questions? COMMISSIONER ADELSTEIN: I do. It seems that the county is trying to say well, nobody is using it so why don't we take it away. Why not just do it in a mathematical way. Nobody is using it so why Page 52 August 18, 2005 don't you say nobody is using it. Therefore, we will delete it in our books for traffic conditions showing that they are no longer actually there to be used. Nobody gets hurt in the condominium association, because, as you said in your statement, nobody is using it so we're taking it away . Well, fine, if nobody is using it, you don't need to take it away. All you need is the record so that transportation can determine how many real units are actually there. So nobody gets hurt and nothing happens. CHAIRMAN BUDD: By take away, Mr. Adelstein, you're suggesting to just pull it out of the model -- COMMISSIONER ADELSTEIN: Mathematically. CHAIRMAN BUDD: Pull it out of the modeling, but not pull it out of the vested rights? COMMISSIONER ADELSTEIN: That's correct. CHAIRMAN BUDD: And just to take that a little bit further, I've got a rhetorical question which is, if this is going to improve the modeling, given that all these units are currently in the model, where are all these unused, unfilled, under utilized roads that are being built, planned, and existing out here in the community, since we've got obviously more capacity than we need, we just can't find it because of the car in front of us. And that's a rhetorical question. MR. SCOTT: Let me get to the first one first. Actually, my boss was saying the same thing. He said, okay, if we're saying our average buildout is seven years and that's where the one-seventh came from, he says, why don't we takes those and do a 50 year, or 100 year, then you get down to so little trips that that's a way of doing it, administratively. The second part of that is, the model goes out 20 years. Right now we're dealing with the 2030 actually. So what you're realizing right now is what was done in 1990 for the model, essentially, 2010, and if you go back and look at what the population estimate was at that time for 2010 and some of the other issues, even the roadway Page 53 August 18, 2005 system that was in there, we're not there. I mean, for five years they didn't build any roads here. And the population was held down. That's kind of why I'm -- even the argument of what is our population going to be in 2030. At the moment, though, we have a 2030 plan, I'm going beyond that and saying, I don't care. I'm going to model a buildout and see what happens with that. Then I don't have to worry about well, what is it, somewhere in between. CHAIRMAN BUDD: Well, I think we owe it to Mr. Strain to continue in his line of questions. And there will be other Planning Commission questions, but I think there's really some merit that rather than go out on this plank of potential Burt Harris claims, taking away rights and all kind of loose ends purely to modify the model, I think it would be smarter to consider modifying the model and not go down this road. But, Mr. Strain, you had a line of questions. If you'd continue, please. COMMISSIONER STRAIN: I've just got a few. If something like this were to happen, and this density would disappear, if a homeowner on a previously plotted and built lot wanted to add a guesthouse, what process would they have to go through to add the density for that guesthouse? MS. STUDENT-STIRLING: Yes, I know there are some PUDs that do have guesthouse. And I think that I have one right in front of me. I think they may be considered more of an accessory use, and that's something we could look at, but I would think that -- well, that's something I would have to look at. Thank you for bringing that up. COMMISSIONER STRAIN: In the planning communities that are being suggested, were the calculations of those limited to the built-out PUDs, the tally, the way those are being structured? MS. STUDENT -STIRLING: Yes. It would -- that's just for administrative convenience for staff to look at the PUDs in a given discrete planning community to see which ones are built out. Page 54 August 18,2005 COMMISSIONER STRAIN: But the way this seems to read is staff would initiate amendments for what they would believe the excess density based on the build-out, but is that -- then are those 12 planning community calculations and all that, only apply to built out PUDs. MS. STUDENT-STIRLING: Right. You would take a PUD, or the PUDZ, in a particular planning community. And the way I envision the ordinance, what it would look like, would be you would have an ordinance for a planning community. And then you would have a section in that ordinance for a given PUD, specific PUD. And then you would have a subsection that wherever the number of units were referenced or the density, because the density would change, you would do a strike and underline for those areas of the that particular PUD under that section, and then it would be a section for each PUD per planning community. This is the way the setting -- the evaluation ordinance was set up when we did compatibility exceptions. We had one master -- I believe it was one master ordinance, and then it was broken down in this way for properties. So it would address each particular PUD, and section for that PUD, with the appropriate subsections with the strike through and underline for the number of units and the corresponding density. COMMISSIONER STRAIN: I notice the last paragraph of this document talks about moratoriums and that they would basically stay this issue. MS. STUDENT-STIRLING: That would have to do with the build-out, or expiration date requirement in the PUD. That if there were a moratorium, that date would be told. COMMISSIONER STRAIN: Right. I understand that. But last night brings up another example. The proposal from transportation last night was worded craftfully enough that they didn't define it as a moratorium up because it allowed 10 or 20 homes a year development. Well, when you've got a development of thousands of Page 55 August 18,2005 units and you only allow them to build 10 or 20 homes a year, that's a moratorium. But because it wasn't called one, how would that affect your paragraph I. Because in essence what happens is, you're stretching their required build-out period forever if you're limiting the number they can build, but you're not calling it a moratorium. So how would that fit into this? MS. STUDENT-STIRLING: Well, I suppose that you could put some language, craft some language that would describe the condition that was referenced last night and include it in here. I don't want to get into a debate on what's a moratorium and what isn't. The intent would be if it were a moratorium or some other situation, and I want to be rather precise about what that situation might be, that, you know, it would affect their ability to go forward, then the time line would be told. COMMISSIONER STRAIN: Well, that precision you want to be, would be very important. MS. STUDENT-STIRLING: Yes, it certainly would. COMMISSIONER STRAIN: Because there are various forms of government interaction that would cause delays out of the control of the development industry and it wouldn't be fair to hold them accountable for that. And that's all I got. I'll reserve my right to cross as we get done. CHAIRMAN BUDD: Mr. Schmitt. MR. SCHMITT: Just as a form of discussion that clarifies with Commissioner Strain. What would you define, for instance, if a developer comes in, which one has, wants to build, will sue the entire process, gets the SDP, goes through, has all the zoning but finally is told at the end, sorry, no concurrency, therefore your project is shelved. Is that a moratorium? COMMISSIONER STRAIN: It's a form of government inaction that doesn't allow the developer to proceed so he shouldn't be held responsible for that under this criteria. I mean, how can you come in Page 56 August 18, 2005 one door and say if you don't build this in a certain amount of time we're going to declare your density gone, yet you can't build it because you can't get concurrency so you have to wait until it's ready. MR. SCHMITT: I mean, this is a problem we discussed, and we as staff recognized. You have everything ready, your SDP is designed, it's on the shelf, you're just waiting now for capacity, but we also have rules in place that say if you don't build within two years, your site plan is revoked. COMMISSIONER STRAIN: So you're revoking it because of government's inability to react. Which I'm not saying you're wrong in doing that, but at the same time you don't come back in and take it out on the previous approval that I think was applicably -- MR. SCHMITT: And we do have other regulations. For instance, the sunsetting where we set due to government inaction or inability to provide, whatever, a permit. Let's say, delayed for US Army Corps of Engineer permit or whatever, that at that time does not count against the developer. We could look at something like that in this where there are, due to actions of government, for whatever reason that prevented the development from moving forward. But again, I think it's a situation where it still hasn't been turned over to the homeowners association, or isn't being built out so this wouldn't apply. COMMISSIONER STRAIN: Well, there's a lot of, in my thinking, between now and the next time we see this, I would imagine there would be a lot of rewriting, but I would hope that some of the points like that issue be looked at and addressed somewhere in this document. CHAIRMAN BUDD: Anything else, Mr. Strain? COMMISSIONER STRAIN: No. CHAIRMAN BUDD: Mr. Schiffer had a question, then Mr. Murray. COMMISSIONER SCHIFFER: And, Margie, this is kind of a hypothetical. Let's say a developer got an approval for a PUD for 500 Page 57 August 18, 2005 units. He builds it out for 400 units, sells it out and the association takes over and he's gone. Who owns the PUD and who owns the 100 units at that point? MS. STUDENT-STIRLING: Well, on each individual property, the owner owns their unit. COMMISSIONER SCHIFFER: Their share of the unit plus their MS. STUDENT-STIRLING: I'm talking about if it's single family, each property owner owns that residence, and if it's the condo, however it's describe in the condo docs, usually it's, you know, some kind of space of air that includes the interior, you know. And they own that unit. The association in a condo situation would own limited common areas and common elements. COMMISSIONER SCHIFFER: I understand that. It's kind of off course. What I'm saying is, who owns extra units? In other words, in a subdivision with no common areas -- COMMISSIONER ADELSTEIN: The association would. COMMISSIONER SCHIFFER: Well, there's no association in that case. Those are gone. MS. STUDENT-STIRLING: I think they're gone. And I also think that unless there's something in the documentation for the Master Property Owners Association that says they retain the rights to them, I believe they're gone. COMMISSIONER SCHIFFER: But who owns essentially the right to the PUD? Does the -- if there's one homeowners association-- in other words, we've even had the problem where they -- people come in to amend the PUD, and part of it that isn't developed yet, who owns the whole PUD? MS. STUDENT-STIRLING: Well, I don't think anybody owns the whole PUD. I think it is a zoning district. And then each individual owns a lot in the zoning district, or a condominium unit in the zoning district, and there are common areas that are owned by the association. Page 58 August 18, 2005 COMMISSIONER SCHIFFER: And then these extra units -- MS. STUDENT-STIRLING: And then if you want to say who the property owners within the PUD are, it's all-- that can be the Master Property Owners Association, it can be individual lot owners, condo association and unit owners. And they all are owners under that PUD. COMMISSIONER SCHIFFER: So, in one ownership, let's say one association. Make it simple. If there is extra units, and let's say their thing was damaged by a storm or something and they wanted to decide to sell it out rather than rebuild it, would the new owner get those units? MS. STUDENT -STIRLING: I think in your situation in order for them to have a claim to those units that they would have to establish something in their documents that they retained the right to those units like Pelican Bay did, otherwise they're gone. And if they have such a document, they are exempt from this. COMMISSIONER SCHIFFER: So if otherwise they're gone, why are we going through this process? They're gone. MS. STUDENT-STIRLING: So there is -- so the county knows that they're gone. And it's adjusted in the PUD document that way, and planning staff knows for planning purposes that they are, and transportation knows for their purposes that they are. Without just being, well, they're gone and nobody really knows. COMMISSIONER SCHIFFER: So we get the annual report for all the PUDs. So don't we know with that report what's built, what's gone, and what's not here? And Don, when you use that, don't you use the annual report to realize that phantom units don't exist? I mean, they're just gone. MR. SCOTT: You do get the data, and not always in the forms. Let's say in the perfect world, yeah, you do get what's been built, and you know what is not going to be built essentially from what is in there. I mean, if someone says administratively to do this, then I'm just Page 59 ·~·.___o_"··_"·_~' August 18, 2005 going to do it, that's fine. The problem was, someone wanted to go through a process to get to taking it all off of Joe's documents, everything that we have, that type of thing. MS. STUDENT-STIRLING: I think you have -- if they had just gone that way, and, you know, what notices it, you know, that they're gone, and, you know, they're still on the books as far as zoning goes, so this was a process to adjust that. COMMISSIONER SCHIFFER: All right. Thank you. CHAIRMAN BUDD: Mr. Murray. MR. MURRAY: Adding to the complexity of it, let's take a case where a development is partially constructed and there's, perhaps there will be several condo associations and a master association and the developer goes belly up and those unbuilt units remain. The Master Association nor the condo associations would be in a position to do anything on their own, and they would be put upon to even get organized to even begin the process, what happens to those units? Do they get taken away or is the association at a later time in a position finally to acquire a builder who will build them. MS. STUDENT -STIRLING: I don't think they're subject to this because the proj ect is not built out yet because all the dirt -- you know, all the units aren't built. So I don't -- COMMISSIONER MIDNEY: So they would not think they were abandoned? MS. STUDENT -STIRLING: I don't think they would be subject to it because this has to be where all the dirt has been used up for the, you know, for the units that are allowed by the PUD. COMMISSIONER MIDNEY: Okay. So those units would still be on the books. MS. STUDENT-STIRLING: Right. CHAIRMAN BUDD: Mr. Midney. COMMISSIONER MIDNEY: I have a question about the Burt Harris Act. The way I would understand a private property rights, Page 60 August 18, 2005 would be infinite in time. In other words, there's no ending in the time. And what this ordinance would do would basically put a time limit onto the property owner and say, you have to make some sort of a plan about what you're going to do and when. Whereas, the Burt Harris Act would seem to me to indicate that you have as much time as you want. So it seems as though you would infringe on Burt Harris, or am I wrong? MS. STUDENT-STIRLING: I don't think that's necessarily the case because in the DRI scenario, you have to establish a termination date and a DRI that you need to finish by. Often times they have phasing schedules in them and so on. And I don't think that there's any, you know, Burt Harris problem with, you know, having an expiration date go into a PUD. Particularly into a new PUD because there's no reasonable investment expectation to do it infinitely if you have to put an expiration date in a PUD or amend one to put an expiration date in it. COMMISSIONER MIDNEY: So it's not a Burt Harris issue? MS. STUDENT-STIRLING: I don't see an issue with the expiration of build-out date. COMMISSIONER MIDNEY: And on the other side, I don't see an incentive, if it's in a homeowners association where the homeowners would have a financial assistance in increasing the density in their own neighborhood. Usually people would want to keep the density the same not certainly increase it. MS. STUDENT-STIRLING: Well, that was my point. That one of my thoughts in this process that once you have a neighborhood and the properties are owned by the individuals homeowners, or individual condo units, they want to keep their neighborhood as it is. And I think one example that's come up in a situation like that is over with Ironwood, I don't know what's happened to it, but over there was a problem with the golf course. And it was some talk of, you know, a developer coming in and taking that up and getting rezoned and doing Page 61 August 18, 2005 something with it. And I think that folks over there, you know, want to maintain the neighborhood. They bought their units on a golf course and so on. And I think there's a big incentive for people wanting to keep their neighborhoods as they are and not have increases in density. CHAIRMAN BUDD: Mr. Adelstein. COMMISSIONER ADELSTEIN: I think we're talking about two different scenarios. One is where we're going to have 500 units and we build 450 because that's all the land we have. There's a second group like Falling Waters that always has lands yet and we've had two come in front of us to build additional units in Falling Waters. Now, those two things are absolutely different when you have built it out totally. MS. STUDENT-STIRLING: Right. COMMISSIONER ADELSTEIN: And that's what you're talking about. Everybody else is coming in with a second scenario though there's still land here. MS. STUDENT-STIRLING: Right. That's when it's totally built out and there's no more land. COMMISSIONER ADELSTEIN: If there is no more lands available, then why waste the time to try to actually get to remove what is absolutely not possible to be used because there's no land left to build, and just let the number be taken off for the amount of units that are there. In the other situation where there is land, under no circumstances can you take that responsibility because the association does own the 50, if in fact there's land for the 50. MS. STUDENT-STIRLING: Again, this was just for predictability and so the PUD could be adjusted to reflect what's on the ground to give staff, planning staff, transportation staff, and so on the predictability. COMMISSIONER ADELSTEIN: It's already there. CHAIRMAN BUDD: Mr. Abernathy and then Mr. Schiffer. COMMISSIONER ABERNATHY: Mr. Chairman, at the risk of Page 62 August 18, 2005 being the old gramudgen in this group, it seems to me we're going down the line with everybody thinking up their clever hypothetical. And I'm not sure that we're going to resolve all those hypotheticals, or this is going to help us decide what position to take on this particular item. So, it seems to me we ought to get some questions rather than solving puzzles. MS. STUDENT-STIRLING: And if I might address that, that's why this has process built into it. Because you can't think of every hypothetical. And if there's an objector, they can come in through one of these processes and make their situation known and staff can evaluate it and see how to handle it. Because you just can't know every scenario that's out there. CHAIRMAN BUDD: Good point, Mr. Abernathy. Mr. Schiffer and then Mr. Strain. COMMISSIONER SCHIFFER: And I think kind of going along, Ken, is what we really want to do is be able to change the bookkeeping in the concurrency method to remove development rights and, like you said, we're all playing with hypotheticals as to what that is. I don't think it's the way to do it. I mean, we don't know when the development rights would be necessary. There could be an old project that gets destroyed in the storm, or the people decide to sell it when they want that additional rights to build on that property, even though they're not using it in their neighborhood. So I do think we should try to find a way to fix the books without diminishing development rights of existing projects. CHAIRMAN BUDD: Mr. Strain. COMMISSIONER STRAIN: My comment to Mr. Abernathy's comment is that the discussion of hypotheticals for my purposes helps me understand the interpretation that would be -- would come out of an issue like this. This one is such an impactful issue, I certainly would want to understand it as deeply as I can and that's the purpose I have asked for certain hypotheticals to be put forth. If there's a value Page 63 August 18, 2005 established to these ghost units, for example, that could have a huge impact on litigation as it goes forward. I do know that in some cases there was a discussion between developers where there was a shortage on density, or shortage on traffic trips. One developer would agree to give up some trips from his PUD to go -- and another developer would simultaneously apply for a concurrency request and be able to use that. Well, there's a value there. There's a value and exchange rate there. I just want to make sure that whatever we decide on isn't going to come back and bite us in the negative because we didn't think these scenarios out. So that's where I'm trying to go. MS. STUDENT-STIRLING: Appreciate that. CHAIRMAN BUDD: Getting back into our format here. We have staff presentation followed by public comment. Marjorie, have you completed your staff presentation? MS. STUDENT-STIRLING: I have. CHAIRMAN BUDD: Are there registered public speakers on this item? MS. F ABACHER: Yes, there are. First one is Ms. Sellers. CHAIRMAN BUDD: And who is next so they can be prepared? MS. FABACHER: Mr. Coulombe. CHAIRMAN BUDD: Okay. Ms. Sellers with Scott Coulombe on deck. MS. SELLERS: Commissioners, thank you. I have one brief comment here. I note that in 8D, paragraph D, dealing with the exceptions, there's's a recognition of an exemption for PUDs that have DRI development orders that have down zoning dates listed in them. There are some DRI development orders out there that in fact don't have such dates. They may be some older ones. MS. STUDENT -STIRLING: I've tried to cover that -- I had stated I was also going to include language or termination date to cover that. MS. SELLERS: We'll have some language to submit if this is Page 64 August 18, 2005 going to go through the iterate process, we'll do that. That's my sole comment. Thank you. CHAIRMAN BUDD: Thank you. Mr. Coulombe. And who is -- is there another speaker? MS. FABACHER: Yes. And then Mr. Brooker and then Mr. Y ovanovich. CHAIRMAN BUDD: Okay. Thank you. MR. COULOMBE: Good morning. For the record, Scott Coulombe, executive vice president, CBIA. Last name is spelled C-O-U-L-O-M-B-E. It is French not Italian. Anyway, long time, no see. Fourteen hours ago. Same request as last night, we got this -- in answering your question, Mr. Strain, 10:30 Tuesday morning and we didn't really have a chance to crack this open, in between other meetings and other issues and the other issue we had to discuss last night. We really haven't been able to put our arms around to see what the collateral effect is. We understand the intent from Marjorie. Of course you want to find out what phantoms -- you know, exist and what really doesn't exist. But there could be a lot of ramifications from this. And you're hearing great scenarios. You're all asking wonderful questions that we have too, but we don't have the answers for it yet. We're requesting that we can work with Marjorie on this, give input, sit down and analyze this further just to see what the collateral effect is going to be. It's easier said than actually done because you don't want to trip anything up further down the road. You don't want to deny people any of their rights, especially homeowners and homeowners association. Thank you. CHAIRMAN BUDD: Thank you, Mr. Coulombe. Just to clarify for the record, as Dave Ellis has moved to Atlanta and you have come to us from New Orleans, you are the updated and better looking version of Dave Ellis. MR. COULOMBE: Well, thank you. It's the goatee. It's the Page 65 August 18, 2005 white. Thank you. COMMISSIONER STRAIN: It's too short. CHAIRMAN BUDD: Okay. Mr. Yovanovich. MR YOV ANOVICH: Good morning. CHAIRMAN BUDD: He's not the tallest thing on the panel. MR. YOV ANOVICH: Just virtually challenged. I've made some earlier comments in response to Mr. Strain's questions, but it seems like what Mr. Adelstein is suggesting is really the practical solution to what we need to do. You don't need to worry about taking away people's rights. You can take them out of the equation and there's, you know, you're fairly certain that you've addressed that and don't have to worry about it, but there are going to be redevelopment scenarios that come through where people may like to use the units that they own. I'm fairly sure that most developers believe they own those units, even after they turn it over. They believe they have an asset. COMMISSIONER MIDNEY : Yes. MR. YOV ANOVICH: And someone might come to them some day and say, you know what, I bought all these condo units it X, Y, Z subdivision and I want to redevelop and I'd like to add some more units because they're available and I can do that without amending the PUD. I can do it under the existing development standards and I'd like to do that. And I believe some developers believe that that's an asset they have. I don't think it's an asset that you should worry about carrying on the books because there's some -- it may never happen so you don't need to continually plan for it. So I think what Mr. Adelstein is suggesting is a reasonable accommodation. I think what we're -- a lot of this is duplicative to what you already have in your regulations. I mean, now we want to put a build-out date in a PUD where we already have sunsetting provisions that say, if you don't meet certain development criteria, you're PUD sunset and you have to come back and keep the PUD alive. I don't know why we need to also throw in a build-out date when we already Page 66 August 18, 2005 have that addressed by the LDC. I'm not sure. I mean, this is under the guide of concurrency management, yet, we're exempting from the ordinance the very things that we're trying to regulate. We're exempting vested projects from the application of this ordinance. They are the only units that are actually included in the concurrency management system. New PUDs that come through are not included in the concurrency management system. You have to come through the process and do your SDP and that's when you start getting your reservations and that's when you're included. It's vested projects that you include one-seventh, one-seventh, one-seventh. And they're exempt from this process. So you're really not addressing the concurrency issue I think you are trying to address. MS. STUDENT-STIRLING: I'd like to address that before I lose the thought. The vesting that that addresses is not the planning vesting that was addressed in the concurrency management system, it's -- it would be for an individual that came through the process of vested rights and had their -- in 902 of the code and had their proj ect determined to be vested under that scenario. It's not what Mr. Y ovanovich is talking about. MR. YO V ANOVICH: Well, you know, I see the purpose of intent is to address the concurrency management system. Now we got concerns that we have concurrency management issues, is the purpose and intent of why we're doing this. I asked Don Scott, and I don't see him. There he is. If I misunderstood what he said, he can correct me, but when we talk about how the concurrency management system works, it's for vested projects that he includes one-seventh each year. For non-vested projects, we don't include one-seventh. Is that right, Mr. Scott? MR. SCOTT: The vested that we have in there was what was determined by Carlton Fields originally and it's more than just the DRIs. But, obviously, we had a little conversation over here -- MS. STUDENT -STIRLING: That's not what this -- I drafted this. Page 67 August 18, 2005 That was not my intent. That would be stupid. MR. SCOTT: I understand that. And I think our bigger intent was -- I mean, not that I can legally do that, was to get rid of, you know, even units that aren't going to be built in vested things. Obviously it's dwindling down to -- I don't know what's left, but, there might be proj ects that are affected that are already in there and it might not. It might be in the model side of it and not in the -- the concurrency for us is not just the concurrency system. It's also the long-range term. MR. YOV ANOVICH: Right. And that's why I think Mr. Adelstein talking about the model makes sense. Maybe I misunderstood the reason. These processes are necessary to enable the county to plan effectively for realized transportation impact to be evaluated by the concurrency management system. So I thought the reason we're doing this is to deal with the concurrency management system. I don't think whether what we're changing is dealing with the concurrency management system. I think what Mr. Adelstein is suggesting will deal with the concurrency management system. But I don't know what we're changing here will deal with that because the exemptions that are already in there will still be counting those units for a long time on the concurrency management system. MS. STUDENT -STIRLING: That exemption for vesting, let me reiterate, is not the same as the vested language in the concurrency management system. It is for a situation where the property owner comes in and says I'm vested for whatever reason and you can't take my unit away. They go through our local process. Maybe go through a court process after the local process. And that's what that vested language means. It does not mean what Mr. Y ovanovich is talking about. MR. YOV ANOVICH: Okay. So I would assume it would also include developer contribution agreements between the county and the developer where it specifically says you're vested for X number of units. Then I would be exempt. Page 68 ~._,-~~~~......._.~--------,~.__..,.."..,... August 18, 2005 MR. ABERNATHY: Mr. Chairman, hold it a second. A member of the public is entitled to come up here and speak and he doesn't need to be hectored by any member of the staff. He says his piece and then in due course the staff can pour cool water on it or say he's full of you know what. But to have this tennis match going on is just -- there's no order to it. CHAIRMAN BUDD: Good point, Mr. Abernathy. Mr. Y ovanovich, if you'll make your comments, please. MR. YOV ANOVICH: Okay. COMMISSIONER ABERNATHY: I have a question for Mr. Y ovanovich when he's finished. CHAIRMAN BUDD: We wouldn't dare interrupt him now. MR. YOV ANOVICH: You know, in my previous comments, I'm not sure the county has the ability to just unilaterally amend someone's PUD document. With that, I mean, I don't need to repeat myself. And sorry I got sidetracked. CHAIRMAN BUDD: Okay. That concludes your presentation. Mr. Abernathy, you have a question? MR. ABERNATHY: Rich, when I objected a few minutes ago to the serial hypotheticals, it occurred to me that if you don't cover all of them, then there are still hypotheticals that we haven't thought of. So how would we deal with those? What does occur to me is, you've got a PUD amendment process. Anytime you're going to take these units away from anybody, whether it's an individual or a developer, now there must be some process involved in that. We don't just have a hearing where you get up and say you are not using them so they're gone. Anybody who feels aggrieved by that can state his case and contest it. And then that's when we deal with the hypotheticals as to whether they're entitled to be exempt or made an exception for, or whatever conditions we're going to develop in this process. Otherwise what's the hearing for. MR. YOV ANOVICH: Well, I'm suggesting that I don't think you Page 69 August 18, 2005 have the right to just subject me to that hearing. When you have a PUD, it's a document that the property owner comes and negotiates with the government. The government cannot impose a PUD on a property owner. I think that's clear under the law. Therefore, you can't amend my PUD documents just because the government can't come in and say, we want to amend the PUD document unless I consent to it. Now, we consent to a whole lot of things in PUD documents, including sunset provisions and things like that. The sunset provision is there. If we don't continue to move along, we come forward to you and we say can we extend. And if we meet the criteria, yes, we get our extension, or we can get two of those. You can't now say, you know what, I didn't like the deal I struck so I'm going to adopt a new process where I can bring you in front of us and say, you know, we're going to amend to take away your units. I don't think you can legally do that. I think we have certain rights. You know, Margie may disagree. You know, I'm just giving you my opinion, my legal analysis. What I'm suggesting is, you don't need to do all this. You already have provisions in place. MR. ABERNATHY: It seems likes we have two ships passing in the night. This regulation is aimed at situations where the developer is already out of it except in some remote sense that the units are there and he's got a better claim to them than anybody else. But assuming you lose the argument that you can't be here before this hearing, you lose that, what do you do at the hearing. Aren't there reasons to say, I understand this process. I object to it, but I'm here and here's why it shouldn't apply to me. MR. YOV ANOVICH: Right. And assuming I lose that, then what's my recourse? My recourse is then to go ahead and file a lawsuit. COMMISSIONER ABERNATHY: What would you think the grounds would be for winning at that point? MR. YOV ANOVICH: Well, Mr. Abernathy, we're going so far Page 70 August 18, 2005 out in the future right now on some of these issues. What I'm suggesting is, there's a practical solution to the concern. And this was all raised under concurrency management. There's a practical solution and that is to take those units out of the model and not have to worry about the issue. Maybe it never becomes an issue. Just you can take them out of the model and you've accomplished what you need to do. You have a better idea of what your road transportation is going to be like. What are the odds of wilderness coming in and challenging the developer wilderness if you take away those units? I don't know. But do you have to get to that point when you can simply alter the model and worry about it some date in the future, which you will probably never have to worry about it in that scenario. COMMISSIONER ABERNATHY: I don't have any problem with that. But apparently the planning staff has a problem. MR. YOV ANOVICH: I don't know. I think Mr. Scott said he'd take them out of the model if that's what he thought was the better solution. CHAIRMAN BUDD: Mr. Schiffer. COMMISSIONER SCHIFFER: Richard, who does own the PUD? In other words the developer comes before us. It's a form of zoning. He wants to zone the land and it be governed by this PUD document. Is there an ownership of that document? MR. YOV ANOVICH: Yeah. I'm going to take the position that the client that I represent, that whose property -- has agreed to do that, owns all those rights, and he subdivides and gives them a few units here and a few units there and he keeps the rest. COMMISSIONER SCHIFFER: Okay. Now as he's given it all away, the people that bought all the property essentially gave him the right to do that was that he owned the property that the PUD is laid on. Once he sells that all off, what gives him the right to hold these additional units? MR. YOV ANOVICH: Well, it's still a property right. The units Page 71 August 18,2005 are still a property right, the units are still a property right. Another property owner can come to him and say, you know what. COMMISSIONER SCHIFFER: But he doesn't own the property anymore. MR. YOV ANOVICH: The units -- but it can be separate. COMMISSIONER STRAIN: So you know there are in a lot of cases deed restrictions that restrict the right of expansion on individual lots by buyers and purchasers subject to the approval of the developer, even a long time after the developer is gone. In those cases the developer can turn around it and grant a unit right, or whatever he wanted to. Ifhe had them available to those property owners, then he would more likely sell them for a price. So there's a value attached to these ghost densities to that regard. MR. YOV ANOVICH: From a practical standpoint, I don't think you need to keep them in the model. COMMISSIONER SCHIFFER: I definitely agree with that. MR. YOV ANOVICH: I don't think you have to keep them in the model. COMMISSIONER SCHIFFER: But now that the topic is open here, I mean, as the town redevelops itself, in the future we may be taking condos down or redoing them, would the developer then be selling those rights to the people that own that condo, or what is going on with those? MR. YOV ANOVICH: We haven't gotten there yet. But, you know, and I don't think we've reached that situation in the City of Naples where a PUD had extra units that that happened, but there's redevelopment happening in the City of Naples all the time. I mean, older condos are going away and being replaced with newer ones based upon the zoning that's on the property. COMMISSIONER SCHIFFER: At that time these additional PUDs would be something marketable? MR. YOV ANOVICH: There might be. It might be a market for Page 72 August 18, 2005 it. CHAIRMAN BUDD: Ms. Student-Stirling. MS. STUDENT-STIRLING: That's why perhaps the exemption that I wrote didn't cover every scenario that Mr. Y ovanovich addressed. But it covered the scenario the one I personally knew about, that being Pelican Bay. And so if there is a situation where the developer retains some development rights under some kind of instrument and I would assume there would have to, you know, be some kind of documentation that he's retained those, then that was meant to be exempt from this process. CHAIRMAN BUDD: Okay. MS. STUDENT-STIRLING: I have to discuss with Mr. Y ovanovich some of the -- the situation I addressed was the one that I had personal knowledge of, that being Pelican Bay, but it wasn't the intent if somebody retained some development rights through some kind of instrument to take them away through this process. CHAIRMAN BUDD: Mr. Y ovanovich, thank you for your comments. We've grilled you long enough. MR. YOV ANOVICH: Thank you. CHAIRMAN BUDD: Are there any other speakers? MS. FABACHER: No. Not ifMr. Brooker is gone, no. CHAIRMAN BUDD: Okay. Mr. Strain, you had some comments? COMMISSIONER STRAIN: This looks like it's gotten a long way in the direction it may not even have gone. We're here to provide direction to staff in regards to the next hearing. I would suggest that the direction we provide is to follow the Lindy Declaration. And that is that, these units simply after build-out be removed from the concurrency management system and they would obviously sit there, but they wouldn't be calculated in so they wouldn't upset Mr. Scott. And at such time the developer wanted to use them, they'd have to come back in at the concurrency requirement at that time. It's a real Page 73 August 18, 2005 simple solution to what seems to be everybody's issue. CHAIRMAN BUDD: And that's our recommendation as we direct staff in the interim and then we will rehear this item. COMMISSIONER STRAIN: That would be my suggestion. CHAIRMAN BUDD: Other comments or recommendations to staff on this item? Mr. Midney. COMMISSIONER MIDNEY: I'm thinking that, you know, if the feeling of this Board is almost unanimous that this is not something that we should probably leave alone, I'm wondering if we need to rehear it again. CHAIRMAN BUDD: It will come back. We definitely have to. It's a matter of process. It has to come back. And then if we say, whatever, we'll make that call then. We've already established the format for it to come back. Other comments and direction for staff? MS. FABACHER: I'm sorry, Mr. Chair, could you repeat that first one about the interim? CHAIRMAN BUDD: Mr. Strain, could you rephrase your, or restate your suggestion? COMMISSIONER STRAIN: Yes. Upon build-out we can get into the language of describing build-out. The units that are remaining simply get removed from the calculations for concurrency management as Mr. Scott has to use those now. All that means is, they still sit there as units, but for them to come back in the system, they have to come out of the current concurrency management at the time, and if there's room for them, fine, if not they get treated like everybody else. COMMISSIONER CARON: That's long term planning. COMMISSIONER STRAIN: He wouldn't have to plan for them because they're not coming back in the system until they ask for it. COMMISSIONER CARON: Okay. But they're out there. COMMISSIONER MIDNEY: If the developer has a right to Page 74 August 18, 2005 those, then they can be used at some time. Should we not leave them in the system? COMMISSIONER STRAIN: Oh, no, they'd be left on the books. They just wouldn't be calculated under traffic management system. And they wouldn't be calculated until the developer, if it ever came in, say 10, 20 years in the future and request that those be used, or if he want to add a guesthouse that takes a unit. He'd have to come back in and see if the road could take them at that time. And if it can, then he's back in the system for that number of units that he comes in to request. COMMISSIONER MIDNEY: But then aren't you taking away something that he had? COMMISSIONER STRAIN: He had it while he was active with the development, not afterwards. MR. SCHMITT: But what Mr. Strain is saying, it remains zoned, but due to the developer not executing on that zoning basically, then it is no longer -- it would revert back to the current concurrency rules, and that they would have to come back in through some kind of plat or plan amendment and be subj ect to the transportation concurrency. At that time then we're only dealing with the impact concurrency, we're not dealing with the zoning. And we'll look at that. CHAIRMAN BUDD: Mr. Schiffer and Ms. Caron. MS. STUDENT-STIRLING: I think the end result is almost the same really. MR. SCHMITT: It's a good suggestion. It may not be what the Board of County Commissioners directed because there's other issues behind this that the board directed us to remove this excess zoning, but we'll look at it from a legal perimeter and discuss it and that may be the solution that we come back to this body with in regards to how to deal with it. Because the issue for us is to get it, or for Don to get it off of his books and a way to get it off the books and having them then meet the concurrency rules. To get it back on without taking, quote, a development right from them. So, they still have the right, they just Page 75 ·__'^__H_'~_." August 18, 2005 have to now conform like every other developer and meet the capacity requirement. Either providing capacity or waiting for the county to build the capacity. COMMISSIONER SCHIFFER: And one thing I'd like to say, and, Don, you can probably provide this is, some sort of status as to what kind of an impact this has on the roads. I mean, the condition of Naples roads, I don't think anybody is driving around wondering where the phantom cars are. I don't think -- I'm not sure how big an impact or how little this has. CHAIRMAN BUDD: He answered -- on behalf of Mr. Scott he answered earlier has no impact today. It's our future planning. MR. SCOTT: Well, and what I said was a little cushion doesn't matter, but, no, that's a direction. And, obviously, I think the original intent was -- there's so many exceptions we're not even where we're at the original intent. COMMISSIONER CARON: How does that help you in long range planning? It doesn't, correct? MR. SCOTT: No, I think we'll probably need to look at that differently. COMMISSIONER CARON: Exactly. I mean, so one of your intents with this was to help you, or long term planning and this is not doing that at all. Just take them off in paper. COMMISSIONER STRAIN: First of all, they're just on in paper. But when they're on in paper now, he has to count them today. And the road has to be able to take them today. So if you left them on in paper and took them off as far as concurrency goes, he wouldn't have to count them today. If they wanted to be used in the future, I would suggest that at that time they have to come in and provide the proper request to the county to use and add them back both on paper -- I mean, both in the concurrency system as they would need to be. MR. SCHMITT: But as Don and I were talking about, let me give you an example. Lely is 10,000 units. We know probably built Page 76 August 18, 2005 out at 5,500. 10,900 and whatever units. It's a DR!. Until that DR! expires, I can't even go back and get those excess units. That's almost twice what we know, and of course that's impacting Don's calculations on 41 and 951. So as Don and I were talking, we're going to be able to deal with what each one here and go out and get some of those PUDs. But the large DRIs are still going to be problematic because they are in essence, still have capacity that Don is looking at. And until that DR!, we wouldn't even be able to go out after that PUD until the DR! is either passed its DO or expires. CHAIRMAN BUDD: Mr. Schiffer. COMMISSIONER SCHIFFER: And we have to be careful because the outcome of this, no matter which way we go, is we're going to be allowing more cars on the roads that may be already -- I mean, the reward for this exercise is we're going to allow more cars on the road. MR. SCOTT: Well, and it's funny because hearing the responses again, it's competing interest because you could be a -- representing a developer that wants to go forward and you could theoretically get trips you didn't have before. MR. SCHMITT: And that's exactly what happened. We had some zonings come in along 951 that have been denied. COMMISSIONER SCHIFFER: And again, the problem with our roads is not too many cars not there. MR. SCOTT: No, I don't usually worry about over building the system, or at least not yet. CHAIRMAN BUDD: Okay. We've had our staff presentation, public comments, extensive dialogue. We need to pick a time for the second hearing on this item. Mr. Schmitt, you gave me a couple choices. First being Wednesday, August 31 st. We could meet anytime during the day at Horseshoe Drive, or the next day we have September 1 st, a Thursday . We have a regularly scheduled meeting that currently only has two items on the agenda. We can put it on that agenda for our Page 77 --~_.,.,"...~_.._------.,..._~.,. August 18, 2005 regularly scheduled September 1 st meeting, which I'm inclined to do. Is there any feeling by on Planning Commission? COMMISSIONER SCHIFFER: Is that because you won't be here at that meeting? CHAIRMAN BUDD: I'll be here. COMMISSIONER ADELSTEIN: The one that just passed today got to be three. CHAIRMAN BUDD: The LDC item we discussed earlier today is coming back September 21 st. COMMISSIONER ADELSTEIN: I'm talking about at the meeting, before the -- CHAIRMAN BUDD: Oh, yes. There's two on plus, we continued Mr. Yovanovich's Valewood property, so there's three which-- COMMISSIONER STRAIN: Mr. Chairman, we already have an LDC meeting set up for the 21 st. Why don't we just put it there. That gives the county attorney time to meet with the various parties that have expressed interest. And maybe look at -- MS. STUDENT-STIRLING: The 21st is? MS. F ABACHER: The LDC Cycle Two meeting. MS. STUDENT-STIRLING: Okay. That seems like it gives us a whole lot of time really. COMMISSIONER STRAIN: Well, I think based on the comments maybe that would be well used. COMMISSIONER SCHIFFER: And Patrick White hasn't shown me that it's not something that has to be done after 5:00 so I'm comfortable we can do that any time during the day. CHAIRMAN BUDD: Okay. Do we have a consensus? Is there a motion whether we meet on September 1 st with our regular planning commission agenda, or on the 21 st to hear it with the LDC two cycle that we discussed earlier? Which way do we want to go? COMMISSIONER ADELSTEIN: I'd like to go not on the 21st, because I'll be able to be at the second meeting. I would like to do it Page 78 ..~~"-_.,,'~~_._" August 18, 2005 on that one if possible. CHAIRMAN BUDD: On September 1st? COMMISSIONER ADELSTEIN: On September 1st. CHAIRMAN BUDD: Mr. Adelstein makes a motion for September 1 st. Do we have a second. COMMISSIONER MIDNEY: I'll second. CHAIRMAN BUDD: Mr. Midney is a second. Discussion. Being none, call the question. All those in favor signify by saying aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. MR. MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed? (No response.) CHAIRMAN BUDD: Motion carries. We will hear this item again on Thursday, September 1 st as part of our regular Collier County Planning Commission agenda. Okay. We're through our LDC items. Back to our regular agenda. Item B, that is petition V A-2005-AR-7444, a request for an 8-foot II-inch side yard variance. All those wishing to present testimony on this item, please stand and raise your right hand to be sworn. Do you swear or affirm the testimony you're about to give on the matter now in hearing shall be the truth, the whole truth and nothing but the truth so help you? (All affirm.) CHAIRMAN BUDD: Are there any disclosures by Planning Commissioners relative to this item? Page 79 -'"----,-'"-,-~,.,".,_..- August 18, 2005 (No response.) CHAIRMAN BUDD: There appear to be none. Ifwe can hear from the petitioner, please. MR. MUST: Good morning. For the record, William Must on behalf of Terry and Charlotte Rhodes of 1123 5 Oaks Lane, Naples. Twin Eagles. I'm here to reinforce their position with regard to the variance requested for a screen enclosure on their property. I want to address the guidelines set forth by the Planning Commission with response to those. The first question that was set out was well, are there special conditions and circumstances which are peculiar to the location size and characteristic to the land, structure, building involved. The owners believe there are. First the land is zoned agriculture district mobile home overlay. Also the land in this PUD is a five-acre parcel. There is a 50-foot front setback, 30-foot side setback, and it is a corner unit. All those things are why we feel it's unusual and it's a special condition which relates to the hardship of where they're going to place the screen enclosure. Second item was, are there special conditions and circumstances which do not result from the action of the applicant, such as a preexisting condition relative to the property which is subject to the variant request? Our answer is yes. The house was built to code as well as there was a fence put on the property according to the setback. And the fence is in the current 30-foot side yard setback, but it was allowed because the land development code does not restrict the location of fences in the agricultural mobile home overlay. So, beings that we can't put a screen enclosure in that setback as well, that is a preexisting condition that we feel prevents us from getting this vanance. Item number three was, will a literal interpretation of the provisions of the zoning code work unnecessary or undue hardship on the applicant to create practical difficulties for the applicant? Again, Page 80 August 18, 2005 we feel yes, that in order to put up a screen enclosure, we would be able to put up a screen enclosure, however, we would have to move the house or the pool to do that. Also there's a tremendous amount of wildlife out there, deer, bears, raccoon that almost require a screen enclosure to be out there. Item number four, will the variance, if granted, be the minimum variance that will make possible the reasonable use of the land, building, or structure which promotes standards of health, safety and welfare? We don't believe that it will be the minimum variance. We believe it's the maximum variance needed. We don't need any more than just the eight foot into the side 30- foot setback. And it's just a corner portion of that. It's not a full eight foot from the setback to setback. And also, it will enhance and promote the standards of health and safety and welfare for the homeowners of that house by putting up the screen enclosure. Item number five, will granting the variance confer on the applicant any specific privilege that is denied by the zoning regulations to other lands, buildings or structures in the same zoning? We don't believe that this -- granting the variance will be injurious to any of the neighbors. There being Bonita Bay has already approved the location of the screen enclosure. Item number six, will the granting of the variance be in harmony with the general intent purpose of this Land Development Code and not be injurious to neighbors or otherwise? I just touched on that. No, we don't -- it's already been approved. None of the homeowners have any obj ection to it, and it wouldn't be injurious to the neighbors. So it will be in harmony with the land development code from our standpoint. Item number seven, are there any natural conditions or physically induced conditions that ameliorate the goals and objectives of the regulations such as natural preserves, lakes, golf courses, et cetera? There is a lake in the rear corner of the property. It is a corner lot, and Page 81 August 18,2005 because of the way it's zoned, there's wetlands in the front and a common area of the front that take up most of the 50-foot front setback. The last item, will granting the variance be consistent with the Growth Management Plan? Obviously, it is consistent. I think that in summary, I've demonstrated that there's a definite need for the screen enclosure based on the wildlife that's out there and, you know, the bugs and alligators and things that may run into the house. Also, the functional nature and aesthetic need to be preserved in this high-end community. It's Bonita Bay Communities so they need to preserve the aesthetics and the functionality of the screen enclosure. That's why we have designed it as such, as you can see on the picture. Also the zoning obviously for this agriculture mobile home overlay is inconsistent with all the types of communities that we build in a single-family home. Typically we deal with 25-foot front setbacks, 10 foot side setbacks, 25 foot rear and ten foot on the accessory structure, so 3 foot side setbacks to us is an undue hardship. We haven't received any letters of objection from the neighbors or the architectural review board. They also have a community in there that they just started, Grand Arbors, that they have -- the Bonita Bay has done that has less than 30 feet setbacks on each side. So, I don't know whether the board or someone has granted that to them, but I'm sure that there's less than 30-foot setbacks in there. We have a landscape buffer that blocks the view from the neighbor, from the screen enclosure so that's really not an issue. So with all these things in mind, I ask that the Planning Commission approve the variance requested for this screen enclosure for the Rhodes. Mr. Chairman. CHAIRMAN BUDD: Thank you, sir. Ms. Caron followed by Mr. Murray. COMMISSIONER CARON: When was this house built? MR. MUST: This house was built I believe four years ago. Page 82 August 18,2005 COMMISSIONER CARON: And why at that time didn't they plan for these critters who are suddenly invading this piece of property? MR. MUST: We didn't know until after we built the house. We -- McGarvey Custom Homes built the house. I was a project manager for McGarvey at the time. And of course we're building in Twin Eagles. It was our first house that we built out there. After we moved in -- after -- it was a model for us when the Rhodes had bought the place. We had been replacing landscape on a regular basis and we found out that there were deer eating the landscape. We sold it to the Rhodes. There was some areas in Twin Eagles and Quail West that we were building that had some bears. Obviously, there's a lake back there. They have problems with alligators, so the homeowners certainly, that's one of their contentions. They want the screen enclosure up like everyone else so that they can, you know, prevent the bears or -- I mean, it's a realistic concern. There are bears out there, there are raccoons out there. So, that's one of their concerns. CHAIRMAN BUDD: Anything else, Ms. Caron? COMMISSIONER CARON: No. CHAIRMAN BUDD: Mr. Murray. COMMISSIONER MIDNEY: You mentioned, sir, that -- I don't know exactly your phrasing. Some paraphrase you weren't used to the setbacks, 30 feet. You're saying that at the time that this structure was built, that they weren't aware of the zoning requirements of the setback requirements? MR. MUST: The homeowner has never been aware of the setback requirements. We as builders were aware of the setback requirements, and we built the house according to setback requirements. COMMISSIONER MURRAY: You built it as a model, you stated. MR. MUST: We did build it as a model. Page 83 August 18, 2005 COMMISSIONER MURRAY: So it would be the homeowner's due diligence to determine or what? MR. MUST: Yes. COMMISSIONER MIDNEY: When you built it as a model, didn't you intend ultimately to sell it? MR. MUST: We did intend to sell it. COMMISSIONER MURRAY: So wouldn't you have complied with the requirements in the first instance? MR. MUST: We complied with all the requirements of the building code, and we had intent on the idea that homeowner may want to come and put a fence up, screen enclosure. I'm sorry. The fence is already existing. So we made accommodations for that. The homeowner wants -- does not want to change the location of the pool to do that. We represented to the homeowner that we would -- you would be able to put a screen enclosure on the lot. It would have to be within certain restrictions but, you know, there were going to be some financial and aesthetic impacts upon that. COMMISSIONER MURRAY: But the homeowner bought the property, nevertheless? MR. MUST: The homeowner did buy the property with that information. COMMISSIONER MURRAY: Okay. There was informed consent? There was information and they acknowledged it; is that correct? MR. MUST: Yes, that's correct. CHAIRMAN BUDD: Mr. Adelstein followed by Mr. Schiffer. COMMISSIONER ADELSTEIN: Can the fence be moved closer to the pool area and come within restrictions? MR. MUST: The screen enclosure? COMMISSIONER ADELSTEIN: Yes. MR. MUST: Yes. If you see the dotted line that angles towards the lake and as to the pool, if you move -- do we have an arrow? That Page 84 August 18,2005 dotted line is where the screen enclosure would have to be to meet the setback requirement. COMMISSIONER ADELSTEIN: So it can be done? MR. MUST: Yes. COMMISSIONER ADELSTEIN: And the pool would still be able to be used? MR. MUST: We would have to move the pool and quite a bit of the plumbing and some of the -- well, not us. Whoever the homeowner would have do the work. We would have to get the cage engineered in a certain configuration to make it work. CHAIRMAN BUDD: Anything else? COMMISSIONER ADELSTEIN: That's it. CHAIRMAN BUDD: Mr. Schiffer. COMMISSIONER SCHIFFER: Questions on what the site is. It's an agriculture site so it would have to be five acres. And the shape of the site is rather unique, right? MR. MUST: Very unusual, yes. COMMISSIONER SCHIFFER: And then the, for example, the rear setback is being measured off of 190 foot long property. What is that line representing? MR. MUST: I have questioned of that myself, why it was ever zoned agriculture mobile home overlay. It's created an unusual situation out there. COMMISSIONER SCHIFFER: I think, I'm sure it's probably to allow you to build the house. You had to be on five acres. MR. MUST: Not necessarily. If you see the front part of the setbacks, it just consists of wetlands and -- I mean -- COMMISSIONER SCHIFFER: But it is -- I think all these lots are probably five-acre lots. MR. MUST: And I think it's Bonita Bay's intention to change the zoning on these properties, at least that's what I have been told. And I know within Twin Eagles they've changed the zoning community that Page 85 August 18, 2005 they're doing in there called Grand Arbor so that they don't have the 30- foot side setbacks. It's just -- it's unusual. In all the communities I build, I don't have a 30-foot side setback. A 10 or 15 maximum, or 20, but not 30. N ow we have a five-acre site, but they don't pay taxes on the whole five acres. They just pay the taxes on a certain portion of it. And the rear setback, I don't know where it begins and where it ends. I mean, it should end in the lake somewhere. There's a drainage and lake easement which is not delineated, so I don't know exactly where that goes to or comes from. If I can determine that, then maybe we can use the 30- foot side setback as the rear and use the rear setback on the opposing property side. I don't know. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah. In the design of this neighborhood, were all these homes intended to have screened porches? MR. MUST: I don't know what the intent -- it was had by a developer, it went bankrupt, and then Bonita Bay bought it out. It's unusual. Bonita Bay bought the property out so, most of the community -- most of the houses in there do have a screen enclosure now. In fact, the two other houses that are on the street do have screen enclosures. COMMISSIONER SCHIFFER: So had the house -- the site plan been altered rather insignificantly, you would have been easily to get that 30 feet? You're only -- had the house been rotated slightly. MR. MUST: No. Well -- COMMISSIONER SCHIFFER: In other words, you're not restrained by the site, you're only restrained by the fact that it was -- MR. MUST: No. I believe we looked into that. To get that -- the only thing we would have been able to change was the size of the house. We have tried. We had our land designers try to rotate the site to get it within the setback with the screen enclosure that we would Page 86 August 18, 2005 typically put on there and we weren't able to do it. COMMISSIONER SCHIFFER: I think you could. You could rotate it on the corner of that garage and easily do it. But, anyway, I have some questions for staff. That's all. CHAIRMAN BUDD: Okay. Mr. Strain. COMMISSIONER STRAIN: Yes, I've got some questions. How long have you been in town? In this area. Very long? MR. MUST: Twelve years. COMMISSIONER STRAIN: Have you ever hear of a project called Twin Eagles? I mean, do you know the history of this project? MR. MUST: I do. COMMISSIONER STRAIN: Well then, you know the reason that you've got long weird lots is because that was the only way they could circumvent the PUD process in the old days. This project would never have flown if it had gone through the public process for PUD as would have been required in the old days. And what they did is they said, okay, we're going to call ourselves Ag and go to five-acre lots and you can't stop us from doing what we want. And they got golf courses and roads and everything else stuck on those five-acre lots to circumvent the rules so they could do what they wanted out there. That issue spurred the governor's order that we ended up with a rural fringe in some other processes now that we have. So you got what your developer wanted to live with. Now, as far as lines go, I thought I heard you say earlier you had to move the house and the pool. Do you still believe you have to move the house and the pool to be consistent with the setback? MR. MUST: Well, the first item is, yes, you're right. I mean, they did do it, from my understanding, to, you know, get around the PUD. That's all I knew about it as far as that goes. As far as moving the house, I have to maintain that 50-foot front setback, so I don't know that we would have to move the house and the pool, so to speak. I mean, certainly, to only have a foot to walk Page 87 August 18,2005 behind the pool is -- I don't know if that would be a life safety issue or not. I'm sure that it would be problematic to only have a foot to walk behind the pool from the screen enclosure. But to dig the footer that the screen enclosure now has to go on, we're going to be into the pipes and skimmers and stuff like that, so we would certainly have to move some plumbing and whatnot. COMMISSIONER STRAIN: Well, there are engineering ways to support a screen enclosure that would not necessarily need a footer. But the point is though, you can meet the setback, you just may not be able to utilize the configuration you have that you desire. As far as closeness to the pool, we have approved others with screen enclosures closer to the pool. The four foot around the pool that's desired is for maintenance and a lot of purposes, but you could wall that off and put, at one end of the pool, you can still clean it from approach on both sides, so I don't see the hardship here. I don't see one that was created by other than the developer's need to have this project zoned the way it was. I mean, at this point I don't see -- MR. MUST: It was the original developer's need, not the current developer's need. COMMISSIONER STRAIN: Well, due diligence requires the new developer to know what he's getting into. CHAIRMAN BUDD: Other questions of the petitioner? Thank you, sir. Hear from staff, please. MS. V ALARA: Good morning. Carolina Valara, Principal Planning with Zoning & Land Development Review. Staff has reviewed his petition and found no land hardship associated with this variance. There's no condition to ameliorate the variance petition and the petitioner could still enjoy the land without this variance. So staff recommends denial of this petition. CHAIRMAN BUDD: Thank you. Questions for staff. COMMISSIONER SCHIFFER: I do. CHAIRMAN BUDD: Mr. Schiffer. Page 88 August 18, 2005 COMMISSIONER SCHIFFER: Carolina, how do we determine what setbacks are required on this lot? Obviously, it's a large lot, and obviously there was reasons for that beyond what we're talking about. There's a road that goes through the lot. So, I mean, how do we determine front or rear? I mean, none of the boundaries of the property are really at play here. It's really, you know, there's like an imaginary lot within the lot. But where is this front setback off of -- where is his front property line, just out of curiosity. MS. V ALARA: Right. It is an odd type of lot. And what staffhas determined is that you take it from the roads. There is a road so you have your 50 feet on the front, you know, for each road. You have two sides and you have -- COMMISSIONER SCHIFFER: And, you know, essentially, and we actually discussed this a little bit last night on the LDC stuff. This is a road right of way and access right of way, as we tripped over. And so you're measuring from that as essentially the front setback. So, theoretically if you build across the street, which I know we can't, you would have an additional front setback. When a road bisects a property, it ultimately would be conceptually two front setbacks. MS. V ALARA: That is correct. So they had two 3D-feet side setbacks and five feet front. Two side front setbacks. COMMISSIONER SCHIFFER: And do you agree that the position of this site, the way it was placed on this property line and there are other ways to replace what caused hardship here? MS. V ALARA: Yes. And I think you said it before that if the house had been positioned in a different way, slightly a different way, they could have met the setbacks. COMMISSIONER SCHIFFER: With the existing house even? MS. V ALARA: Right. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN BUDD: Mr. Strain. COMMISSIONER STRAIN: Just one question to something you Page 89 August 18, 2005 said. You said across the street they couldn't build another house. They could build a guesthouse, couldn't they? MS. V ALARA: I am not completely sure if they could. COMMISSIONER STRAIN: That's okay. I was just trying to make sure I understood. This is an estates lot, I believe. MS. V ALARA: It's agricultural. COMMISSIONER STRAIN: Agricultural lot. I didn't know if it compared to structures in the estates the same way or not. MR. BELLOWS: You could have an accessory structure. COMMISSIONER SCHIFFER: Ray, what's the mobile home overlay? What does that mean? This is a mighty fine mobile home. MR. BELLOWS: The agricultural zoning district allows for single homes, stick homes, such as you see here. There's an Overlay, HMO mobile home overlay allows for the option of having a mobile home constructed instead of a stick house. So it's an option. COMMISSIONER SCHIFFER: Okay. COMMISSIONER STRAIN: Ray, just one comment. The speaker indicated that Bonita Bay was going to come in and change the zoning on this. And, obviously, going into a PUD on this would probably be the right thing to do. Do you know of anything to validate that? Is that something that's going to be happening? By the way, if it isn't happening, how are they getting Grand Arbor through with the reduced setbacks if it's not ag? MR. BELLOWS: I'm not working on Grand Arbor and I can check into that for you. Any change would have to be -- any subdivision would have to be consistent with the zoning, which is agriculture zoning. And if there is to be a change, that would have to be through some kind of variance or create a PUD where you develop your own development standards. COMMISSIONER STRAIN: That would clarify all this, not for just this landowner but for anyone. MR. BELLOWS: I'll investigate that. I'm not familiar with that Page 90 ~_._-~,~ -~~.."~' "_..~.__...... August 18, 2005 project. CHAIRMAN BUDD: Other questions for staff? Are there any other registered public speakers? MR. BELLOWS: I had a clarification they're developing under the rural fringe development standards can. CHAIRMAN BUDD: Okay. COMMISSIONER STRAIN: How does that affect this? Is there a way that those standards would -- MR. BELLOWS: I'll have to check. I'm not all that familiar. COMMISSIONER STRAIN: I know staff recommended denial, and based on what we've heard, I haven't seen a reason to verify -- vary from that, but if this could fall under rural fringe, there may be some latitude there that would then make it consistent with our codes instead of needing a variance. But at some point maybe someone ought to check that out. MS. V ALARA: Staff will investigate on this. COMMISSIONER STRAIN: Well, does the applicant want to continue during that investigation? Is that worthwhile or do you want to go forward today? I mean, I'm just suggesting. CHAIRMAN BUDD: We're to take Mr. Strain's recommendation a little bit further. My guess is one-ninth of the votes is you're headed for non approval. The better part of Valara would be to retreat and investigate this rather than face a probably unfavorable decision. So if the petitioner would choose to continue this while this is being investigated, it might be a good idea. MR. MUST: Yes, we would like to do that. CHAIRMAN BUDD: Okay. Do we need a motion to continue or what's the appropriate mechanism? MR. WHITE: Either you will have a request from the petitioner to continue -- CHAIRMAN BUDD: Which we just received. MR. WHITE: And you can knowledge that out of vote or with Page 91 August 18, 2005 one, if you choose. But at this point just ask the question if it's known as to when it might be that it would be continued to so that if there's a way to avoid having to re-advertise you could, otherwise if it's not to a date and time certain, then it would require another ad. CHAIRMAN BUDD: Well, we've got September 1st stacking up already. How about the second September meeting. That gives approximately 30 days. It should be enough time to investigate these issues. So would the petitioner request to come back on Thursday, September 21 st? MR. MUST: Yes, sir, we would make that request. CHAIRMAN BUDD: Motion to accept the petitioner's request? COMMISSIONER MURRAY: I would make that motion. CHAIRMAN BUDD: Second? COMMISSIONER ADELSTEIN: Second. CHAIRMAN BUDD: I have a motion by Mr. Murray, second by Mr. Adelstein. Discussion? COMMISSIONER SCHIFFER: So what would happen, he would go and find out that in the rural fringe he could do this? And, therefore, we wouldn't see him again. He would just disappear? MR. BELLOWS: He would withdraw his petition. CHAIRMAN BUDD: Exactly. Further discussion on the motion? There being none, all those in favor saying aye. CHAIRMAN BUDD: Aye. MR. STRAIN: Aye. COMMISSIONER MURRAY: Aye. MR. ADELSTEIN: Aye. MR. ABERNATHY: Aye. MR. VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. MR. MINDY: Aye. MR. SCHIFFER: Aye. CHAIRMAN BUDD: Those opposed? It's continued. Next. Page 92 August 18, 2005 agenda item, that is petition PUDZ 2005-AR-7469. Richard and Frances Craig and CDN Properties requesting a rezone. All those wishing to present testimony on this item, please stand, raise your right hand to be sworn in. Do you swear or affirm the testimony you're about to give on the matter now in hearing shall be the truth, the whole truth and nothing but the truth so help you? (All affirm.) CHAIRMAN BUDD: Thank you. Disclosures on this item? We'll start down at one end. Ms. Caron? COMMISSIONER CARON: I've met with the petitioner, Mr. Anderson and Mr. Mulhere. CHAIRMAN BUDD: Thank you. Moving on down. COMMISSIONER STRAIN: Yes, I met with Mr. Mulhere and Mr. Anderson. We discussed the errors of their ways and they have come in today for redemption. MR. WHITE: Mr. Chairman, in the interest of a complete record with regards to ex parte disclosures, I would just simply ask if even just a cursory description of the subject matter, transportation, something along those lines, that would be helpful. CHAIRMAN BUDD: Okay. Let's start back at the end. Ms. Caron. COMMISSIONER CARON: Yes, I met with the petitioner representatives, Mr. Anderson and Mr. Mulhere. COMMISSIONER STRAIN: I think he's indicating you need a little bit of what you discussed. COMMISSIONER CARON: Regarding the issues that they have with the transportation staff. COMMISSIONER STRAIN: I my meeting we discussed transportation issues, some layout issues, heights and a whole bunch of notes I have. I can't remember them all, but that's part of it. CHAIRMAN BUDD: Mr. Vigliotti, do you have a disclosure? Page 93 August 18, 2005 MR. VIGLIOTTI: Yes, I had a phone conversation regarding this Issue. CHAIRMAN BUDD: Okay. Who was that with and in general, the nature? MR. VIGLIOTTI: Mr. Mulhere, we had a conference call regarding the issues that he was going to reevaluate and bring forth today. CHAIRMAN BUDD: Okay. On my own part I met with Mr. Mulhere, Mr. Anderson talking about the various components of the project with some elaboration on the transportation issues. Mr. Adelstein. COMMISSIONER ADELSTEIN: I had the same thing exactly as you did. CHAIRMAN BUDD: Mr. Midney. COMMISSIONER MIDNEY: None. CHAIRMAN BUDD: None. Mr. Schiffer. COMMISSIONER SCHIFFER: None. CHAIRMAN BUDD: Mr. Murray. COMMISSIONER MIDNEY: I had conversations with Mr. Mulhere and Mr. Anderson and we discussed, or the discussion focused on the OCI issue and applicability under comprehensive planning. CHAIRMAN BUDD: Very good. All our disclosures are on the record. If we could hear from the petitioner, please. MR. ANDERSON: Good morning, Mr. Chairman. For the record, my name is Bruce Anderson from the Roetzel and Andress Law Firm on behalf of the applicants, here with Bob Mulhere from RWA. You may recall about a year ago this same property came before the Planning Commission and was scheduled to go before the county commission for a rezone to a business part PUD with light industrial and retail and office commercial uses. Page 94 August 18, 2005 After initially recommending approval, the Planning Commission heard the application a second time because of an advertising error. At the second hearing neighboring residents objected to a PUD which allowed light industrial uses and the Planning Commission changed its recommendation to denial. That business part PUD was never acted on by the county commission, and instead it was continued indefinitely while a new PUD application was prepared and submitted. It was as a result of number one, input from neighboring residents, particularly Vanderbilt Country Club, and number two, the county's request for a new public connector road through the property, but this project was resubmitted as a mixed use PUD with commercial uses fronting along Collier Boulevard and residential uses behind the commercial. There is a difference of opinion with the comprehensive planning staff as to the interpretation and application of the infill commercial provisions of the growth management plan to this mixed used PUD. But staff does agree that this is a policy decision for the county commission to make and for you to recommend on. Is that correct, Mr. Schmitt? MR. SCHMITT: Yes. MR. ANDERSON: The infill commercial language does not prohibit reconfiguration of a parcel that is eligible for commercial zoning. Is it silent on the matter and, therefore, it is a policy decision. N ow as the staff reports indicates, this PUD is comprised of three separate tax parcels. The southerly parcel is approximately 9.38 acres in size and it abuts the commercially zoned in developing Mission Hills PUD. Could you point that out? I believe that the comprehensive planning staff agrees that this 9.38 acre parcel clearly qualifies for the commercial infield zoning even under their more restrictive interpretation. It is when this 9.38-acre parcel is included in a PUD and reconfigured to front along Collier Boulevard that staff and the applicant have their differences of opinion on whether the 9.38 acres still meets the intent of the commercial infill provisions. Simply put, the question is, can you take Page 95 August 18, 2005 the acres of the eligible parcel and reconfigure those eligible acres in a PUD. We assert that the answer is yes. The county commission can interpret its own growth management ordinance policy to reconfigure the eligible acreage of a commercial infill parcel. This is especially true where there is an important public benefit which is driving the reconfiguration. In this instance, the driving force literally and figuratively is the County Transportation's Department request for a new North/South public connector road through the middle of the property. And this request for dedication is in addition to the half-acre site that county wants for a well. Reconfiguring the commercially eligible acreage results in a more compatible development pattern and enhances traffic circulation in and around a major arterial roadway intersection. I'm going to ask Bob Mulhere who issued growth management plan interpretations regularly when he served as the county's planning services director to come forward and expand on these points and go over the PUD master plan with you. Thank you. MR. MULHARE: For the record, Bob Mulhere with RW A. I want to start out by just stepping over to the Board there and going over the PUD master plan, and I'll start actually with the surrounding lands as well. I know you're familiar with the site but it's just North of the Vanderbilt Beach Road on the west side of Collier Boulevard. Directly south of the site is the Mission Hills PUD, which is a commercial PUD commercial shopping center that is partially developed and continues to be under development. It is, however, open at this point in time. To the west is Wolf Creek PUD, which is a residential PUD. And to the south is Carolina -- I think it's Carolina Village, which allows for commercial uses in this vicinity right here. Wolf Creek is here, here, here and here. And to the north is the Palermo Cove PUD in this vicinity of which comes down and accesses Wolf Road at a point due north of the subject property. In addition there is the Golden Gate Fire Page 96 August 18,2005 Station directly north of us. To the east across Collier Boulevard is several agriculture used properties, as well as just a little bit north of us and further east of Vanderbilt Country Club. As Mr. Anderson indicated, the site has been designed to accommodate the request by the county to provide this connecting road which takes on, I think a great deal of significance because this will be a fully signalized intersection where Wolf Road intersects with Collier Boulevard. We therefore, provided 80 foot of right of way from our property for a distance of in excess of 500 feet to the west, and the balance will be a 60- feet right of way. And there is some right of way coming from also the property owners to the north, so this is, I believe 110 foot in width. The purpose is to provide turn lanes into this connecting road as well as right turn lane, left turn lanes, and through lanes at the intersection. Wolf Road goes all the way west for a distance and then south again to connect to Vanderbilt. In addition, there's a loop road that runs around, and I'll show you some aerials. I think it will be a little bit easier to see. But runs from Collier Boulevard to the south of the subj ect property and to the north of the Mission Hills shopping center, and that also connects with Vanderbilt. Again, those aerials just I think provide you with a little bit of context again. The one -- this picture is Vanderbilt, Collier from east looking west. Island Walk. This is the subject property. This is the Mission Hills shopping center. And in here you can see the loop road which has already been constructed. And Wolf Road, which will be constructed to a point here and then south meeting with Vanderbilt. All of the agreements are in place for the construction of Wolf Road. And this is just a different perspective. This is from the north looking to the south. Again this would be Vanderbilt and that would be Collier Boulevard. The subject property. Again, the shopping center. Over here is the Carolina Page 97 -"'...,-_.,...._-_..~,...~.".."_._"'...".._-,-"' August 18, 2005 Village and this is Wolf Creek. As Mr. Anderson indicated, during my previous position with the county, part of my responsibility was to make official interpretations with the Comprehensive Plan, in the Land Development Code as well and reviewing the language that qualifies, in our opinion, this property, this 9.38 parcel, which is the southerly 9.38 acres in the PUD, that language does not prohibit reconfiguring that, particularly through a PUD process where you have the opportunity to look at all of the components and public benefits. We believe that raises the question to a policy discussion for Planning Commission to make recommendations for the board to make a decision with. I'd like to discuss a few of the other issues raised by the staff. One of the issues -- there are basically, as I understand it, two issues this staffhas raised. One is the DMP policy issue, and the other is the fact that, within that policy the parcel that does qualify for commercial, is intended to transition down from the intensity of the commercial that is adjacent to it. I'll state that again over here. If we're talking about commercial here, whereas we're reconfiguring along Collier Boulevard, that commercial should be of lesser intensity in transitioning down from the intensity that exists already within the Mission Hills PUD. One of the issues I wanted to raise with respect to reconfiguring this is, number one, we are limiting the acreage to the exact acreage that exists in that parcel that was running to west, 9.38 acres here, 9.38 acres here. Also, this property is somewhat limited for residential development by its proximity to this six-lane roadway, and now what will be a busy connector road between the shopping center and this fully -- full intersection and Wolf Road and the residential lanes to the north, again, allowing everybody to access the shopping center or avoid the intersection. Therefore, it seems from a planning perspective to us, very Page 98 August 18, 2005 appropriate to shift that commercial acreage to the Collier Boulevard frontage. I think the staff record indicates that that's not really the issue. In fact, I think the staff agrees that this is a better plan, its question of purpose and intent. Again, we feel that since that policy language doesn't prohibit it, that the board should have the opportunity to look at these on a case-by-case basis, particularly through the PUD. I wanted to talk about a second staff issue which was raised, which is the intensity of use acres. And I did take a look at the list of uses in our PUD, as well as the list of uses in the Mission Hills PUD. The Mission Hills is predominantly C3 and below with 10 or 12, maybe 15 C4 type uses. This is probably a little hard for you to see, but the yellow and the blue represent permitted uses in the C3 district. And on this page they all would be. The green represents permitted uses in the C 1 district. And as you are aware, anything that's permitted in C 1 is permitted in C2. And anything permitted in C2 and C 1 is permitted in C3. It's a hierarchy, the way the zoning ordinance is set up. So really, to make a long story short, the uses that are problematic from a transition perspective would be those C4 uses. And I've highlighted those in gray, and I'll go over those uses specifically with you because we are prepared to eliminate the number of those uses. The C4 uses that are in our PUD -- and, by the way, the reason we provided those C4 uses within the PUD was not that we were looking to create some greater intensity, but was because they are predominantly office uses. And in our view, arguably they could be permitted in the C 1 district because they are predominantly office related uses. However, for some reason, they show up in C4. But we're prepared to eliminate those. So, one is an SIC code 731, 733, 735 and 737, and these deal with establishments operating primarily to provide business services to the following industry groups: Advertising, mailing, reproduction, Page 99 August 18, 2005 commercial art, photography, miscellaneous equipment rental and leasing and computer programming, data processing and other computer-related services. So, although we believe that that would, for all intents and purposes, look like an office and appear to be an office, maybe with some collateral retail, we're prepared to eliminate that use. COMMISSIONER CARON: In other words, all 24 of them? MR. MULHARE: Yes, thank you. And if you go down to 28. In 28, the only C4 use is C, 7941 professional sports club and promoters. I don't think we have a big market for that in that location anyway and we're happy to take that use out. And then down to 30. Thirty is medical and dental labs. SIC code 8071 and 8072. And I assume that's C4 because that could generate additional traffic or have some other components that are typically not found in an office and we would eliminate that one as well. COMMISSIONER CARON: Biomedical hazard. MR. MULHARE: Yeah, we would take that out. On the next page, number 33. They have -- this is one that we would like to include uses A, Band C in our PUD. And by the way, we have spoken with the representatives who are here from Vanderbilt Country Club. Certainly they can speak themselves, but I don't think they object to these uses. We also have spoken to staff as it relates to these uses. The first three there, A, Band C, engineering services, architectural services, surveying services, really typically office uses. I mean, I worked for a civil engineering surveying and planning firm and architectural firms located in many office buildings. For some reason it shows up here. The accounting, D, F, G, H and I are all permitted in C 1. So really that leaves only E, which is commercial, economic, sociological, and educational research. I can't really see how that can be problematic, but certainly we wouldn't object to removing that one. Weare asking to retain the first three, A, B, and C, which is engineering services, architectural services, and surveying services. Page 100 August 18, 2005 Those are the uses that are C4 that would be considered, I think, objectionable potentially from a transitional perspective issue. There are a couple of others that we -- excuse me. A couple of other uses that we are prepared to eliminate from the PUD but not because of the transitional component because they are allowed in C3 and C2, but really more because, in speaking with some of the Planning Commissioners and with others, issues are raised with respect to potential traffic generation. And so we're prepared to eliminate number five, which is freestanding grocery stores. Again, we don't feel that this is probably a supermarket shopping center just to the south, and it's unlikely that use would occur here, but we're prepared to eliminate that one. And the second one is number 13, drinking places. Now this is a bar. You can still have a restaurant, sit down restaurant and sell alcohol, and that falls under eating places, because the majority of your income comes from food and not alcoholic beverages. So, again, drinking places is a use that we would be prepared to eliminate and that's number 13. I think that covers the list of uses that we're prepared to eliminate. Again, on number 33 asking to retain those three uses that we believe are predominantly office related. COMMISSIONER CARON: Just A, B, and C? MR. MULHARE: Yes. Well, and the other ones are permitted in C 1. The only one that is not permitted is E. It's A, B, C and E, are the four uses that are C4 in that list. D, G, H and I are allowed in Cl so those aren't problematic. I want to mention, we did have of course the required neighborhood information meeting. There were a handful of folks there. We have continued to communicate with representatives from Island Walk, I think at least one individual is here, who have not expressed any concerns. At that neighborhood information meeting representatives from Vanderbilt Country club were in attendance and Page 101 August 18, 2005 we provided them with copies of the PUD and the master plan. And they're here and certainly they can speak themselves. As we understand it, this is a much more favorable development plan from their perspective than the one that we previously submitted from the business part. I'll just look to see from my notes to see if I have any other comments. In terms of building height, we've requested 42 feet zoned height for residential uses and 42 feet also for the commercial uses within the PUD. And it was pointed out that we should be prepared to identify a maximum height in the truth and advertising provisions of the code now. And we're prepared to limit the building height for single family to 35 feet, not to exceed a maximum height from ground elevation to the highest point of 40 feet. The zoned height 35, highest point 40 for single family. For multi-family, we're requesting 42 feet zoned height, and maximum height from ground elevation to the highest point of the roof to 45 feet. And for commercial, we're asking for 42 feet and highest point from ground to the top point of 50 feet. So I think with those -- with that information on the record, we're prepared to answer any questions that you might have, and also we'd like the opportunity to rebut to any comments that might be made from the public or staff. CHAIRMAN BUDD: Before we start with questions, we've been going for almost two hours. We're going to take a 10-minute break. (Whereupon a brief recess was taken.) CHAIRMAN BUDD: All right. We'll reconvene the Planning Commission. We have a new court reporter. The petitioner has just a couple of more comments to make before we open for questions. Mr. Mulhere? MR. MULHERE: Thank you. And, in fact, a couple of comments that were made during the break, I think I can address, talking with both staff and some members of the public. I failed to Page 102 August 18, 2005 mention in terms of the list of permitted uses that we have also agreed to limit the fast food to only one fast food restaurant within the commercial tract. And that was, again, a traffic -- a trip generation issue. Also -- within all of the zoning districts, when I said whatever is permitted in the lesser district is permitted in the higher district, C-1, C-2 -- C-1 and C-2 and C-3, all of the districts have conditional uses and typically, unless expressly prohibited, these conditional uses become permitted uses in the higher district. And some of the uses that we have as permitted uses in C-3 are conditional uses. They are permitted uses for a certain sized square footage and then, above that, they are conditional uses. So I just wanted to clear that on the record. I did want to speak a little bit about the buffers. There was a question about the buffers. I think we've done a very good job of retaining native vegetation in areas where they will serve the best to protect the neighbors, but also -- this happens to be where the best native vegetation exists. And we worked closely with the environmental staff. Over here, this buffer adjacent to Willow Creek is a minimum of fifty feet. There are some locations where it will have to be supplemented and replanted, and we've identified those. And then, of course, it makes good sense for us to buffer ourselves from the shopping center in this location, and we did that, and up here as well. With respect to the roadway, there is -- I didn't want to underemphasize the benefit of that, and I think this aerial perhaps will allow you to consider, if you look at this -- this site plan right here, again we're talking about this connecting roadway. And north of us you have the fire station, which will allow fire trucks to travel south and then west, and other emergency vehicles, without impacting or going through the intersection. But the same holds true for a whole lot of other people. If you think about it, this will be a signalized intersection. And, as I understand it -- and Don may have to correct me if I'm wrong or I'm sure he'll have something to say about it -- but I believe there's -- Page 103 August 18, 2005 there is the possibility of where Wolf Road connects with Vanderbilt will also be signalized, but other than that, talking most likely, when Vanderbilt is improved and Collier is improved, right in, right out, right in, right out. So, without the opportunity for people to -- to come this way to go north, basically we're talking about people making swinging U turns wherever they could, and it's just not a good situation. So I think this connecting roadway becomes very, very, important and I didn't want to underemphasize that. With all of the residences in Claremont Cove, even across the street, Vanderbilt Country Club, they are going to be able to come down and access the shopping enter and again leave. COMMISSIONER SCHIFFER: Bob, does the roadway, the way it swings to the south, does that line up with a road system on the -- MR. MULHERE: That's an excellent question. This point lines up with the entrance to the shopping center. And this lines up with the fire station. And it lines up across. So they are all designed for that reason. And this is pushed west to allow the appropriate amount of road depth. COMMISSIONER SCHIFFER: Good. MR. MULHERE: I wanted to just mention one other thing. I indicated that I thought, from the staff report and from discussions with staff, that it's not really a question of whether or not it's an appropriate plan but what is the policy intent. And if we -- under the staffs interpretation, that we can't shift that commercial within the PUD, we would need to -- to go through a comprehensive planning amendment process at this point would be in the neighborhood of two years away, another year for zoning, another year for construction. So that connecting roadway would be four to five years out. Since it expressly doesn't prohibit it, we're asking. COMMISSIONER VIGLIOTTI: For the Board to make that policy decision. Page 104 August 18, 2005 Another issue they raised that I failed to discuss was language within the policy, the Comprehensive Plan. It states that a rezoned commercial zoning is requested for the subj ect property in its entirety up to a maximum of 12 acres. Well, we certainly don't think that means in the case of a PUD. Remember, we're only asking for the 9.3 acres that is this parcel, which is the only parcel that qualifies for it. Of course we're shifting it over here. We don't think that means, in the case of the PUD that the balance of this property, some 27 acres, would then have to be put into preservation or conservation. Weare limiting the commercial use to that property, and it's less than 12 acres. You know, the way around that would be, you rezone this parcel and then you come in for a PUD later, and it just seems like a waste of time and resources. It just doesn't make any sense in the PUD process, so -- I think that concludes additional comments. I appreciate the opportunity to cover some things that I neglected to cover the first time. CHAIRMAN BUDD: Okay. Questions for the petitioner? Mr. Strain? COMMISSIONER STRAIN: I'm trying to get through it quickly. MR. MULHERE: Okay. COMMISSIONER STRAIN: I have some of staff, not too many. Mostly you, Bob, because we talked the other day. Do you have any problem limiting your COs to no sooner than October of '07? MR. MULHERE: Well, we have a problem with it but, however, however, we understand that that has been the position of the Planning Commission. We would like to not have that restriction, yes. But limiting COs to October of '07 is acceptable. COMMISSIONER STRAIN: That's the same condition we've Page 105 August 18, 2005 imposed on other projects. MR. MULHERE: I understand. COMMISSIONER STRAIN: There was a neighborhood information meeting. In that meeting there were certain items stated. Have you read the staff report? MR. MULHERE: Yes. COMMISSIONER STRAIN: Do you have any concerns about the items stated as being mentioned in the neighborhood information meeting? MR. MULHERE: The only slight difference in recollection from my point to their point is that I do not recall saying absolutely no C-4 uses. I said predominantly, at least in my recollection, C-3 uses, because I knew there were a couple of office type uses in C-4 that we would want. And those are the three that I identified. COMMISSIONER STRAIN: I'm assuming a staff member was there and citizens so I'm sure I'll get more verification. MR. MULHERE: Yes. And I have a tape. COMMISSIONER STRAIN: But you might save a lot of effort, both now and as we get into the PUD, instead of having me go through every single line item of that commercial application. Would you be willing to change the language of the PUD that you will not exceed commercial uses of C-3 -- as up to the C-3 zoning category, with the exception of -- and tell us today, which ones you think are outside of the C-3 that you would want to keep, and that would be a lot simpler than listing -- MR. MULHERE: Sure. COMMISSIONER STRAIN: -- three pages of uses and SIC codes that mean nothing to generally anybody -- MR. MULHERE: Well, I agree. I agree with you, Mark. We'll have to go in there and eliminate those anyway because the county will want the SIC codes. But I agree that we can put a general statement to that effect in Page 106 <'~<"-"--'._----_._~--_.....-¥.~,--_._~.... .-.,---.'" August 18, 2005 there and I can tell you what those are. COMMISSIONER STRAIN: Okay. So -- in the stipulation portion of our meeting today -- MR. MULHERE: Right. COMMISSIONER STRAIN: -- we can get into that. At some point between now and then, while the staff is making a presentation, jot down those numbers, because I would like to discuss them so that it's clear to the public what C-4 elements that you are now adding in that may not or may not have been clearly stated at the informational meeting. MR. MULHERE: Yes. I've got those, so. I mean, I'm prepared to do them right now. COMMISSIONER STRAIN: Wait until I get to it and then you can tell us what they are, please. The reason on the findings for the petition, PUDZ-2005-AR-7469, it's a standard template that is used all the time. Did you write that or did staff right that? Do you know? MR. MULHERE: Typically the rezone findings, if they are part of the application packet, would be written by me. COMMISSIONER STRAIN: Okay. The reason I'm asking is, they are written as if there was no contested issue with comprehensive planning. I want to make that, in the findings, the premise for writing those was that, because, if it wasn't that, then we've got -- they're wrong, because, if you are writing them into the context that the Comprehensive Planning issue is real, then you wouldn't come to the same conclusions in those rezone findings that are written there today. MR. MULHERE: Well, I mean, I think they were written under the context that we felt as though we had the correct interpretation of the Comprehensive Plan, if that's what your question was, yes. COMMISSIONER STRAIN: Yes. MR. MULHERE: Yes. MR. WHITE: If I could interject, just briefly, that dovetails Page 107 ~.<..",...»~.,"----".-...- August 18, 2005 exactly with the same idea that you have an approval document essentially as part of the legislation, the ordinance here, which is inconsistent, of course, with what, arguably, the staffs position was with respect to the finding of inconsistency with the Compo Plan. So kind of making your point and taking it the next step further, the pattern and practice has been to provide an affirmative choice __ MR. MULHERE: Yes. MR. WHITE: -- to the Planning Commission in the event that they were to choose the petitioner point of view and perspective as opposed to that of the staff recommendation. COMMISSIONER STRAIN: Thank you. In those rezone findings, Item Number 4, if you wrote them, Bob, it says that the subj ect site is surrounded on three sides, east, west and south, by property included in the activity center. It's capitalized, as though it was a definition. I will check the GMP map. I didn't see that area of Vanderbilt and 951 indicated as an activity center. MR. MULHERE: Is that yours? Oh, that's the staff report. Thank God. I'm getting out of here. COMMISSIONER STRAIN: I still don't -- I'm not asking you, but I don't believe that's an activity center. Can you clarify? MS. WILLIAMS: Sure. Heidi Williams, Zoning and Land Development Review. To clarify, this was written by staff and it is -- some of the items do address the compo plan issue, that it is not consistent. This item looks to be a holdover from any other petition and is not actually pertinent to this petition. That's an error that's in there and I apologize for that. COMMISSIONER STRAIN: So we're not in an activity center. Would that change your findings at all? MS. WILLIAMS: The first sentence does not belong in that response, but the remainder that is written there does relate to this Page 108 -.-.",-......".---...-.-.'...-........-...-____._,_._...,N_'_ -.'~--_..,.. August 18, 2005 petition. COMMISSIONER STRAIN: Okay. And the remainder, then, has no bearing on the fact whether it is or is not an activity center? MS. WILLIAMS: No, it does not. COMMISSIONER STRAIN: That helps. Thank you. A lot of this is going to get skipped because of what you just answered. Bob, you clarified this when we discussed it. I wanted to clarify it for the record. Your traffic impact statement is for Tanglewood. In this case, you mean -- MR. MULHERE: Sonoma Oaks, because we couldn't use -- I'm not sure why we couldn't use Tanglewood, but apparently there are a few other Tanglewoods out there. COMMISSIONER STRAIN: In your Table 1 under your Tanglewood PUD Traffic TIS -- well, actually Sonoma now, but you know what one I mean -- on Page 3, you talk about uses. You have a general office use. You use the ITE LUCE 710 code for 40,000 square feet. And under the shopping center category -- MR. MULHERE: Yup. COMMISSIONER STRAIN: -- you use the LUC 820 code for 80,000 square feet. Do you have any problem with limiting your uses for general office and for shopping center to the ITE trip generation rates not to exceed either of those two codes? MR. MULHERE: Well, in general, no. I just have one comment. The office generation is actually lower, so I guess my question would be, if it's unlikely that there would be, you know, office exceeding those numbers, but if it did, it would take away from the square footage that we would be allowed for retail. I think if you are asking about the retail issue, I think it makes sense. But for us to have more office than retail would simply reduce the traffic impact. COMMISSIONER STRAIN: I think what I would suggest is, Page 109 .. ·_~·__~__"o~_~~o.__"·..·_,_., August 18, 2005 under any category that you're going to propose here today, you will not exceed the ITE trip generation rate for offices of 710 and other uses of 820. MR. MULHERE: And the only -- and I would agree. I don't think we have a problem with that, with one exception. We did ask to have one fast food -- the opportunity to put one fast food restaurant. We would limit it to one. COMMISSIONER STRAIN: I was wondering if you would figure that out. Okay. I'll make sure when we get into that discussion, it's so noted. Collier County is planning to signalize Wolf Road and Collier Boulevard. Is that a true statement? MR. MULHERE: Yes, sir. COMMISSIONER STRAIN: You mentioned it in your public information meeting and it needs to be -- MR. MULHERE: Yes. And just if I could add to that, that improvement -- I'm not sure if the light -- Don could probably shed some light on that, but the improvement of the intersection up to approximately the fire station is incorporated in the Collier Boulevard improvement program, so that those turning lanes and that access, at least up to the fire station -- MR. SCOTT: That's correct. COMMISSIONER STRAIN: That's fine. Bob has probably talked to you more than I have, Don. MR. SCOTT: Yes. MR. MULHERE: Oh, yes. COMMISSIONER STRAIN: In the PUD, under Section 2.10, you have existing structures. And it is talking about that they may be retained and utilized for temporary uses, under, I would assume, the assumption that they are not to be expanded. MR. MULHERE: Correct. COMMISSIONER STRAIN: Bob, I am going to try to make Page 110 ,.._--~--"--~._--~ '~---~._-- August 18, 2005 notes on all of these comments so that in the end we can expedite any stipulations. MR. MULHERE: Okay. COMMISSIONER STRAIN: Under 2.14, native vegetation retention requirements -- MR. MULHERE: Yes. COMMISSIONER STRAIN: You have a sentence, viable, natural, functioning, native vegetation areas, shall not remove those areas of the vegetation that have a 75 percent or greater canopy coverage of exotic species. Did you write this PUD and send it on to staff electronically? MR. MULHERE: Yes. COMMISSIONER STRAIN: Is that a deviation? MR. MULHERE: You know, I really don't know the answer to that. I apologize. To me, you are suggesting that that language no longer applies? COMMISSIONER STRAIN: Well, if it's in the LDC, we don't need it to be redundant in the PUD. MR. MULHERE: Ah, I see what you're saying. COMMISSIONER STRAIN: If it's in the PUD I'm concerned that you are putting it there because it's a deviation. MR. MULHERE: No, I don't believe that's a deviation. I believe that's consistent with the LDC, but we're generally asked to provide for a statement of compliance with the native preservation standards. And that's a typical statement that we would use. COMMISSIONER STRAIN: Well, I hope -- and I know that Mr. Schmidt made a commitment to Mr. Bellows to have a certain template made, and all of this stuff is supposed to go away, but, until it is, I just want to make sure we're clear. Under sidewalks, Item 2.16 B, you quote -- apparently you say, pursuant to the LDC-Section 60602 sidewalks shall be permitted as follows. Is that a deviation or is that what is in the LDC? And, if it is Page 111 August 18, 2005 in the LDC, why are you repeating it in this document? I can tell you for sure that Russ Muller does an extremely capable job of reviewing for sidewalks and he's going to be adding things involving the ADA that I don't want limited by language in this PUD. MR. MULHERE: There is no deviation. That is the language in the LDC. COMMISSIONER STRAIN: Ray, in order to avoid conflict between any changes in the LDC, which we had one that we may have discussed last night concerning ADA requirements, which they have to abide by anyway, whether it's in the LDC or not. But I wouldn't want this document to be contradictory to those kind of things. Do you recommend striking these kind of redundancies so that we're following one document as the Bible or -- MR. BELLOWS: For the record, Ray Bellows. The engineering staff, including Russ Muller, reviews the document to ensure that there is no inconsistencies. However, it is covered by the LDC and I don't have a problem with that being eliminated. COMMISSIONER STRAIN: I'll so note it. 2.19 landscape buffers, berms, fences and walls. You have a series of landscape berms that are allowed to have some layer of following maximum side slopes. Are those consistent with the LDC or are these deviations you are looking for? MR. MULHERE: To my knowledge, those are consistent with the LDC. COMMISSIONER STRAIN: You know what? Maybe we can summarize all of this. The only deviation you are asking for in this entire document is the one that you've already asked for and spelled out as a deviation. MR. MULHERE: Correct. COMMISSIONER STRAIN: Is that something we can stipulate? Page 112 August 18,2005 MR. MULHERE: Correct. COMMISSIONER STRAIN: All of those other nuances, I'll just go ahead and try to save time and not go into them. Under your development standards, Table Roman Numeral III-3 is the page you have an Item 3 on there -- I'm sorry Item 5, starts out that, front loading garages shall have a minimum front yard setback of 23 feet. MR. MULHERE: Yes. It should be 23. The second 25 should be 23, if that's your question. COMMISSIONER STRAIN: That's my question. MR. MULHERE: Thank you. COMMISSIONER SCHIFFER: Mark, on that point, can I ask a question? According to that, it also looks like you could have a garage right on the sidewalk if you wanted. Obviously you would have to have a traffic lane that would get the other cars off. Is there any kind of a minimum -- MR. MULHERE: There is a setback. Yes. COMMISSIONER SCHIFFER: A setback, which is 15 feet? MR. MULHERE: It's 15 feet, right. COMMISSIONER SCHIFFER: Are you sure, the way it's worded, though? MR. MULHERE: Yes. COMMISSIONER SCHIFFER: Because it is -- it's under front setback, it is a footnote and the footnote states that garages can be less than 20, now 23 feet. MR. MULHERE: Yes. COMMISSIONER SCHIFFER: It doesn't say that it can truly pass the setback. MR. MULHERE: But under the table, the table for accessory structures and principal structures are the same in the front. So you can't be less than the required setback. Page 113 August 18, 2005 In this case you are required to be more than the front setback if you have a front loading garage. COMMISSIONER SCHIFFER: Right. MR. MULHERE: And what we're saying, the staff always requires a statement that says that the garage front shall not be less than 23 feet. I think you remember the issue. It's cars parking across the sidewalk. COMMISSIONER SCHIFFER: Right. MR. MULHERE: So if you have a side-loading garage and you build your driveway so that you can pull in front of the garage and still not be crossing the sidewalk, you can be closer -- you can -- but not slower than 15 feet. COMMISSIONER SCHIFFER: But since it is -- MR. MULHERE: I can put a statement that says in no case shall the garage -- COMMISSIONER SCHIFFER: Be less than 15 feet. MR. MULHERE: -- be less than 15 feet from -- well, it's measured from the edge of pavement, right. Okay. COMMISSIONER STRAIN: Okay? COMMISSIONER SCHIFFER: I'm fine. Thank you. COMMISSIONER STRAIN: I'm on the commercial section. So if we were to suggest language that all uses shall not exceed the CIs through C3 categories accept -- by the way, Bob, when we finish I'm going to ask that representatives of the civic association, the homeowners groups that are here today, comment on your exceptions in regards to what was presented at the public -- MR. MULHERE: Okay. What reportedly was presented, from my perspective. COMMISSIONER STRAIN: Well, from yours, but I can get others to state what they thought it was, too, so we don't need to go that far. What elements of C-4? Page 114 August 18, 2005 MR. MULHERE: Okay. I've got those right here. COMMISSIONER STRAIN: Okay. MR. MULHERE: We're just talking about that because we put on the record some other ones, such as the grocery stores that are permitted and the limit of one fast food. Those are all -- you're just talking C-4. COMMISSIONER STRAIN: Here is what I'm trying to say. Rather than getting into all of your commercial uses that you have there today, we'll simply say that you'll be limited to the uses of the C-1 through C-3 zoning districts. MR. MULHERE: Yes. COMMISSIONER STRAIN: And the following. MR. MULHERE: Okay. COMMISSIONER STRAIN: And the and being anything outside of those districts that you feel you need to have, and we'll see how that fares. MR. MULHERE: And that would be permitted use number 24, which is -- we've listed as SIC Code 731, 733, 735 and 737. COMMISSIONER STRAIN: Now, those are the ones you previously said you are not going to want. MR. MULHERE: That's correct. COMMISSIONER STRAIN: I am going in the opposite direction. MR. MULHERE: Oh, you just want the ones we are -- okay. Yes. I'm sorry. I've got those. COMMISSIONER STRAIN: I'm trying to figure out-- MR. MULHERE: Yes. I've got those. COMMISSIONER STRAIN: You can simplify the three pages by telling us -- MR. MULHERE: I've got them. I've got them. COMMISSIONER STRAIN: Okay. MR. MULHERE: They fall under SIC Code Number 33 ands Page 115 August 18,2005 they are the following SIC code numbers: 8711, 8712 and 8713. COMMISSIONER STRAIN: So those are the only three uses, outside of the C-3 categories, that you would like to retain in addition to those in the C-1 district. So 8711. What are those so the public that has got an SIC book with them can know? MR. MULHERE: Those are -- 8711 is engineering services, 8712 is architectural services and 8713 is surveying services. COMMISSIONER STRAIN: Okay. And then the only additional commercial item, there is going to be language limited to one fast food. MR. MULHERE: Correct. COMMISSIONER STRAIN: And is there a square footage limitation that you thought of, that you can live with? MR. MULHERE: For fast food? COMMISSIONER STRAIN: Yes. I mean, you could have a 10-acre fast food restaurant. Some of those -- MR. MULHERE: Yeah. I mean, typically they are kind of cookie cutter. I wouldn't think that they are any bigger than 4,000 square feet, maybe five, just to -- I'm not suggesting we would need it, but just because I don't really know the answer. I don't think they are any bigger than that, so you said one, they're not to exceed 5,000 square feet, yes. COMMISSIONER STRAIN: Right. Okay. Then I can bypass all of the questions I had on the commercial applications. Under the commercial development standards. MR. MULHERE: Okay. COMMISSIONER STRAIN: I was looking for a setback from residential. I didn't figure out how that was stated here. Do you have one? MR. MULHERE: I don't think there is one in there, I think for the following reason. COMMISSIONER STRAIN: The road, is what you're probably Page 116 August 18, 2005 going to say. MR. MULHERE: Yes. Correct. You have got this road, landscape buffer here, landscape buffer there. So you have a pretty substantial setback. And we're going to have to -- even though we didn't put native vegetation in here, because there isn't one and we exceeded the requirement here, I mean, we recognize that for these lots to be marketable adjacent to this that there is going to have to be a nice, thick landscape buffer in there. So we're prepared to do it. COMMISSIONER STRAIN: I just want it on the record as to why you want them. That's fine. And lastly, the PUD plan that we have attached to our document I understand was changed. You showed me one that is a newer one in your office. MR. MULHERE: Correct. COMMISSIONER STRAIN: Which one do you want on record? MR. MULHERE: Well, I think the one difference was that, on the one you have, if I'm not mistaken, the cross-section has an incorrect front setback showing 20 feet. COMMISSIONER STRAIN: Correct. MR. MULHERE: And it should have showed 15 feet. COMMISSIONER STRAIN: Are you going to -- do you want that just noted as a stipulation? MR. MULHERE: Yes. If that could be noted. And I'll make sure __ I thought we sent the revised master plan to staff but we have had a few iterations back and forth, so it's possible that either we didn't send it to them or they just used one that wasn't the most recent. But that was the only difference, was that the front setback's 15 feet so in the cross section we don't want to show 20. It doesn't make sense. COMMISSIONER STRAIN: Well, it's 15 or 23. MR. MULHERE: Correct. You are right. COMMISSIONER STRAIN: That's the remainder of the Page 11 7 ---_._._,- August 18, 2005 questions I have, except I have a couple of staff. CHAIRMAN BUDD: Other questions for the petitioner? Mr. Midney? COMMISSIONER MIDNEY: Bob, what is this project doing to address affordable housing? MR. MULHERE: Well, I mean, it's only 112 units, and I don't think we know right now what the market -- the market segment that those units will be directed towards is going to be. But, I mean, there's just an economy of scale here, really that, with us building this roadway and then dedicating it to the public and then, of course, 65-foot along Collier, 80 foot for 500 feet plus 30 feet. I mean, I know these things benefit us but, I mean, they also benefit the public. And there is a utility site being requested somewhere in the neighborhood of a half an acre. There is just an economy of scale here where there really isn't an opportunity for us -- I mean, we didn't come in for an affordable housing density bonus agreement. And I just don't know what the marketplace, and I don't think my clients know at this point in time, where they are going to market this. But obviously it's not a very big site. It's not highly amenitized. There isn't that much room. So, arguably, I think we will have a niche that, while it may not address affordable housing, I believe it will address what is being called gap or work force housing. I don't know what the, you know, what the final product is and I don't think my clients do either. COMMISSIONER MIDNEY: Thank you. CHAIRMAN BUDD: Other questions? Mr. Strain? COMMISSIONER STRAIN: I think I have one ofMr. White. Patrick, in this document, the PUD document, unlike some others that we reviewed, there are some very specific references to sections of the -- of the LDC that they believe they are trying to describe themselves as falling under for various elements, for Page 118 August 18, 2005 landscape buffers, for example, for rights of way, for common area maintenance. All different little pieces throughout the document. They just referenced the LDC section to which they are going to be building pursuant to. My concern is, we've changed the LDC periodically and the section numbers actually get changed. By having those direct, distinct references in the PUD, does that have any impact, should the number system change in the future? MR. WHITE: The impact would be that the staff and anyone from our office who is asked to assist, will be required to go back and look at today's LDC in effect when this is approved, assuming it will be, to note what those provisions then said and to follow them through to where they may be renumbered, relocated or even recodified. That is essentially the same as what happens with older PUDs at this point in time that reference prior LDC provisions and must be implemented by applying current LDC revisions. We do the best we can to find what that exact parallel provision is for the purposes of giving meaning to what was stated in the PUD document. COMMISSIONER STRAIN: What if we added more paragraphs in the LDC than were originally listed or referenced? Can those additional ones be then added as a condition of the PUD's criteria or are they limited to those in existence only at the time -- MR. WHITE: You've asked the fundamental question that is required to be made by anyone who attempts to apply the Land Development Code in combination with any of our PUDs. It is always a case by case analysis and one where a general rule should be avoided, in terms of saying either the latter enacted or the more specific enacted provision should control. I think that it's an area that is important to try to find the appropriate balance between those ideas. It is obviously easier if you do not include those types of citations and instead just otherwise rely on a general provision that says that you must meet what then existent LDC requirements otherwise are. Page 119 August 18, 2005 MR. MULHERE: There is a provision in the PUD that provides -- that says, unless otherwise exempted or more specifically stated in this PUD document, the Land Development Code prevails. And I assume, at least in my past experience, that where the land development code has been amended after a PUD is approved but it's the land development code that is the prevailing document on that regulatory issue, it has been applied in its new application. MR. WHITE: And that is, indeed, I think the case consistent for all applicants, all aspects of staff who have dealt with this. COMMISSIONER STRAIN: Well, I -- in reading this PUD, I did notice there was a lot more references to specific chapters of the LDC. But in each and every case that I read, if you just struck those references and simply said -- like in this one, Sanoma Oaks MPUD subject to the requirements of the Land Development Code. Instead your sentence says subject to the requirements of, and it lists four chapters, and then the Land Development Code. So I would recommend that we strike all of those references where not needed and leave it simply the Land Development Code. Then, no matter how many switches there are or additional chapters that might come into play, you fall under those. MR. MULHERE: Ifwe said something like, with respect to this issue, I agree, or with respect to this provision. I think if we could get to the point where -- I think what you are driving at is, if we can get to the point where we can create a PUD document that isn't redundant that only provides for development standards and deviations, then the rest of it is superfluous, really, and the general statement that, for the balance you comply with the LDC. I don't think -- COMMISSIONER STRAIN: Certainly would speed it up. MR. MULHERE: I don't think we're there yet, but, you know-- COMMISSIONER STRAIN: Probably make these meetings go a little bit faster. Thank you. That's all I've got. Page 120 ~_.~..__... "-"-"'"-"'-"~'~- August 18, 2005 CHAIRMAN BUDD: Other questions on the staff presentation? MR. WHITE: Just one comment. I note in this PUD document, the version I have is Roman Numeral IV-4. It's under capital letter A, Number 34, and I don't recall any discussion about it at this particular hearing, but I know in prior, recent hearings there's been some discussion about that generic provision involving any other use comparable in age with the foregoing list. And I don't know whether that is something that -- that the commission wants to consider or not at this point. MR. MULHERE: I can speak to that issue. That language is the acceptable language at present, Pat, because it requires a determination by the Board of Zoning Appeals, which in this case is the Board of County Commissioners. Previously those PUDs used to simply say in which the zoning director determines to be comparable. That was the only one. MR. WHITE: I just am unaware of any process that allows you to immediately jump to the BZA to make that kind of a determination. COMMISSIONER STRAIN: That is a subtle difference. MR. MULHERE: I don't know. I think, Marjorie, she's not here, but I believe she previously was involved in causing the -- I won't say causing as an individual, but involved in changing that condition from its previous format in most PUDs, which was -- in which the zoning director determines to be comparable and compatible with the foregoing to now, that the process should be handled by the BZA. I would say that the process should be maybe through a conditional use. MR. BELLOWS: Well, for the record, Ray Bellows. That was the original intent of the language and most PUDs are structured to have -- not that language listed under permitted uses but under conditional uses. MR. MULHERE: And that's fine. That's fine. We would agree to move that as a conditional use. It simply is there because you can't foresee everything. If there is Page 121 ".._-_"'_"-~--"._--~-_.- - August 18, 2005 a use that isn't identified, that is comparable, let it go through a public hearing process. I think that addresses everybody's concern. COMMISSIONER STRAIN: Okay. CHAIRMAN BUDD: We have no other questions? We'll hear the staff report, please. MS. WILLIAMS: Good afternoon. Again, for the record, Heidi Williams. Principal Planner, Zoning and Land Development Review. Staff review of this petition has found that, as laid out, this PUD does not comply with the criteria in the Growth Management Plan. We do have staff members available to answer specific questions about that. But essentially the four dwelling units per acre requested for the residential portion is consistent with the density rating system. There are criteria of the office and infill commercial subdistrict, however, that staff does not feel have been met. With respect to environmental issues, no EAC meeting was required for this petition because there are no wetlands or wildlife Issues. The neighborhood information meeting was held as required by the applicant. There were a few residents in attendance and, to anticipate your question, my notes on that meeting do indicate that no C-4 or C-5 uses would have been allowed. I verified this with Linda Bedtelyon, who is our community information coordinator for CDES and that was her impression as well. We did not have an opportunity to review the tape of that meeting. It is to be -- yet to be provided by the applicant, I believe. Zoning review. Just to clarify a statement made by the applicant, it's not the intention of the staff report to indicate that this layout is necessarily better than any other layout. However, it is compatible with the existing uses and intended uses for the area. Single family residential to the west would be compatible with the residential area, as indicated on this master plan. There is a commercial shopping center to the south and fire station to the north. Page 122 - '-'<-"'---'~--"---'---'" ~-_.~--_...- August 18, 2005 The applicant has mentioned that the utilities division has requested an up to one half acre well site easement. This is not reflected on the master plan. They would prefer that it is. However, I understand there is ongoing conversation on that. There is one deviation requested, as noted by Commissioner Strain. That is a deviation that would allow the applicant to provide a 50-foot right-of-way instead of a 60-foot, which is normally required. And, as I feel that many of the issues have been pretty thoroughly discussed already, I just would like to say that staff recommends denial of the petition, based on the fact that staff does not find it consistent with the growth management plan. And I would be happy to answer any questions. CHAIRMAN BUDD: Questions for staff? COMMISSIONER STRAIN: Staff member, I have questions. You answered the questions you knew I was going to ask so I'm done there. Michele Mosca had written a memo. I wanted to ask her one question about it. That's the only staff question I have. MS. MOSCA: Good afternoon, Commissioners. Michele Mosca with the Comprehensive Planning Staff. COMMISSIONER STRAIN: Hi, Michele. MS. MOSCA: Hi. COMMISSIONER STRAIN: Page 6 of your memoranda, the one attached is dated July 21st, 2005. The last conclusion, Item Number 3, PUD document should be revised as noted above. Did all of your revisions get into this PUD document that we're seeing today? MS. MOSCA: I don't believe so. COMMISSIONER STRAIN: Well -- Lindy, did you have -- can you hang in there for a little while or do you want do -- COMMISSIONERMIDNEY: Yes. Go ahead. COMMISSIONER STRAIN: Let's start walking through it and see what's missing. Page 123 August 18, 2005 MS. MOSCA: Well, I believe the reason why my recommended changes were not provided in the PUD is because the agent for the applicant believes that the subject request is consistent with the office and infill commercial subdistrict. But everything else that I had requested from the applicant is within the PUD, so it's related to that Issue. COMMISSIONER STRAIN: If there is a finding of -- or if there is a recommendation to the BCC for consistency or to approve this, then all of the other elements, other than that one, have been corrected pursuant to your request? MS. MOSCA: I believe so. COMMISSIONER STRAIN: Thank you, Michele. That was my concern. CHAIRMAN BUDD: Mr. Schiffer, you had a question? COMMISSIONER SCHIFFER: Yes. Could you outline what your concerns are with the Growth Management Plan, GMP? MS. MOSCA: Yes, I would. Staff believes that the application is, first, inconsistent with the intent of the subdistrict. And I could read the intent, if you would like. And also two particular provisions within that subdistrict. The intent of the commercial and office infill subdistrict is to provide low intensity office commercial or infill commercial development on small parcels within the urban mixed use district located along arterial and collective roadways where residential development, as allowed by the density rating system, may not be compatible or appropriate. What the applicant is requesting, the only parcel that would qualify under the office and infill subdistrict would be the most southern parcel, which is approximately 9.38 acres. Collectively, this project is somewhere around 37 somewhat acres, which mayor may not be a viable location for residential. COMMISSIONER SCHIFFER: Do you think it would be viable Page 124 --,--_..-..."-",.-,, .. --.- -·__~__.'.__"_'·w ,'_ August 18, 2005 to locate residential along Immokalee Road? MS. MOSCA: I believe there is residential located along Immokalee Road. COMMISSIONER SCHIFFER: Okay, and the second point-- MS. MOSCA: The specific criteria -- the first one is on 2 of my memorandum. The rezone to commercial zoning is requested for the subject property in its entirety, up to a maximum of 12 acres. For a property that is greater than 12 acres in size, the balance of the property in excess of the 12 acres is to be limited to an environmental conservation easement or open space. We're not suggesting that perhaps if collectively these parcels -- only the southern parcel, which is approximately 9.38 acres, should be commercial. The remaining could be used for residential development. We're not suggesting that the remainder of the acreage within the PUD be set aside for conservation or otherwise, or open space. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: I want to see what is being put on the -- MS. MOSCA: David Weeks has put up a drawing. That -- the southern portion would be the eligible property for the commercial request under the subdistrict. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN BUDD: Any other questions for staff? Okay. The staff presentation is complete and we've asked questions. Are there any registered public speakers? MR. BELLOWS: One registered speaker. Larry Smith. MR. SMITH: Good afternoon. My name is Larry Smith. I am Chairman of the CoUnty and Local Development Committee that represents Vanderbilt Country Club, which is made up of a bunch of local members there. And yes, we did attend the local hearing for this particular petition. And at that hearing we were also of the impression that we Page 125 ·._~_.- August 18, 2005 heard that the permitted uses was to be C-l, C-2, C-3, at least that was . . our ImpreSSIon. However, in relation to Mr. Strain's question, we don't have any opposition to the designated C-4s that Mr. Strain got Mr. Mulhere to commit to, as long as we're sure that those are offices, which we have been told that specifically. So therefore I would just like to comment that Vanderbilt sees no reason to oppose this petition at this time. CHAIRMAN BUDD: Thank you, sir. Any other speakers? MR. BELLOWS: No other speakers. CHAIRMAN BUDD: There being none, we'll pose the --oh, you have another question? COMMISSIONER STRAIN: I have one question of Mr. Mulhere. CHAIRMAN BUDD: Go right ahead. COMMISSIONER STRAIN: Bob, do you realize that you are not being granted any concurrency determinations or rights, even if this is approved by us, that the BCC and that you will have to fully meet all concurrency requirements before you can build the proj ect? MR. MULHERE: Yes, sir. COMMISSIONER STRAIN: Thank you. CHAIRMAN BUDD: With that, we'll close the public hearing. Do we have a motion on the table? COMMISSIONER ADELSTEIN: I move that AR7496 -- 69, rather, be forwarded to the Board of County Commissioners with a recommendation of approval, subject to the conditions given by Mark Strain. COMMISSIONER MURRAY: I second. CHAIRMAN BUDD: I have a motion by Mr. Adelstein, a second by Mr. Murray. Mr. Strain, for clarification on the record, would you restate Page 126 .-..^"-......--, August 18, 2005 those conditions? COMMISSIONER STRAIN: Yes. The first one is to limit the uses on the proj ect to two categories, general office, and I think they said shopping center, but the purpose is that the ITE trip generation rates for offices will not exceed the office use of 710 and, for the commercial uses other than office, will not exceed the trip generation rate of 820 for the square footages shown in the master plan, or the PUD. There will be no rental units in the residential portion of this project as committed to in the public information meeting. The maximum actual height, not zoned but actually will be 40 feet for single family, 45 feet for multi-family, 50 feet for commercial. There will be no COs issued on the project until October of '07. There will be no expansion to the existing uses that, according to the PUD, are allowed as a temporary use. There will be no deviations requested except the single one that is requested for. Any references to changes in the LDC or clarifications are not deviations to the LDC. The correct setbacks -- the setbacks will be corrected on the master plan. The references to the LDC in regards to the specific chapters in the PUD will be removed. The commercial uses will be limited to those uses in a C-1, C-2 or C-3 category, plus offices for 8711, 8712 and 8713. And the fast food category will be limited to one fast food restaurant not to exceed 5,000 square feet. Item Number 34 under the uses for commercial will be removed from that category and put into a conditional use category. And there will be no -- no rental of residential units -- I already said that. So those are the nine conditions I have come up with. CHAIRMAN BUDD: Mr. Adelstein, do you agree with those stipulations? COMMISSIONER ADELSTEIN: Absolutely. CHAIRMAN BUDD: Mr. Murray? Page 127 August 18,2005 COMMISSIONER ADELSTEIN: I do. CHAIRMAN BUDD: Mr. Anderson? MR. ANDERSON: I have just one clarification on that rental unit provision, because I bumped up against this on another PUD. The prohibition is on that this will not be a rental complex. If you or I buy a unit there, and we want to rent it out, that should be permitted. COMMISSIONER STRAIN: I don't disagree with you, but I'm assuming it will be limited to a certain number of times a year and certain length of -- period of time, like other residential units. MR. ANDERSON: Whatever the Land Development Code provides generally for that. COMMISSIONER STRAIN: Okay. I don't think that's a problem. CHAIRMAN BUDD: Do the motion and the second come through with that clarification? COMMISSIONER MURRAY: I'm clear with that. CHAIRMAN BUDD: Mr. White, would it also be appropriate for us, as part of this motion, to find it consistent with the growth management plan, even though that's contrary to the staff direction, staff opinion? MR. WHITE: I think that you are free to make such a finding in the form of a recommendation to the Board of County Commissioners for their consideration. And you are, I believe, free to agree or disagree to any extent with the staff or the petitioner. CHAIRMAN BUDD: Would the motion maker and the second agree with that? COMMISSIONER STRAIN: Can we phrase it that, due to the unique circumstances of this property, that this particular situation would, we believe -- COMMISSIONER MURRAY: Does in spirit -- COMMISSIONER STRAIN: -- does in spirit meet the intent of the -- meet the consistency of the growth management plan. Page 128 August 18, 2005 COMMISSIONER ADELSTEIN: I'll accept that. CHAIRMAN BUDD: That's much better said than what I had in mind. The motion and second are in agreement? COMMISSIONER MURRAY: Yes. CHAIRMAN BUDD: Ms. Caron had a question, followed by Mr. Abernathy, or a comment. Excuse me. COMMISSIONER CARON: I don't really have a question. I have a real problem. I cannot find it consistent with our growth management plan. I think our Growth Management Plan is very clear here, for a change, perhaps, but very clear in that it states the criteria listed below must be met for any proj ect utilizing this subdistrict. And there are 17 criteria listed. And at least four or five of them are not met by this petitioner. Now, I'll qualify that by saying that I think this is probably a really good proj ect. All right? And there are a lot of things here that we would like to have happen. However, they need to go through the process, and the process is to have a Growth Management Plan amendment in order to make this change. And I'm going vote against it, just because of that fact. I don't think that we can find it consistent. CHAIRMAN BUDD: Mr. Abernathy? COMMISSIONER ABERNATHY: My question sort of dovetails with what she said. I wonder if we should be forwarding this rejecting the staffs notion that the BCC would have to make an exception or make a finding that it is consistent by their having said so. On the one hand, we could forward it saying we don't think it's consistent but the BCC should, since it's a meritorious project, should exercise its discretion and approve it. I'm hung up on saying it's consistent with the -- I just think that crosses over the whole thrust of what this staff, comprehensive Page 129 August 18, 2005 planning staff has said. I don't have any problem with it being approved by the BCC, and would like to tell them so, but I don't think I can find it -- I don't think it's incumbent or necessary for us to find that it's consistent with the Growth Management Plan, because it clearly isn't. MR. WHITE: To address Commissioner Abernathy's comment, there is no legal requirement that the Planning Commission make that precise finding. I understood, from the form of the motion and the intent of the motion maker and the second, to essentially be making just that type of a recommendation to the board, not a specific finding of consistency or not. But you are free to bring it forward with any degree of recommendation or finding you may choose, in agreement or disagreement. CHAIRMAN BUDD: For that clarification, Mr. White, because I was under the misimpression that we did have to make that finding, and I would leave it to the motion maker and the second to withdraw that portion of their motion which is raising roadblocks in the approval of this petition request. So, Mr. Adelstein -- COMMISSIONER ADELSTEIN: I never said it was going to be consistent. CHAIRMAN BUDD: Okay. So the motion maker wants to remove the finding that it is consistent. And the second? COMMISSIONER MURRAY: I would agree with that. If I may just comment? CHAIRMAN BUDD: Yes, sir. COMMISSIONER MURRAY: I was struggling with how I could -- if I were to make the motion, that I would recommend denial but recommend that the BCC approve. And so I thought the motion that was made by Mr. Adelstein, Commissioner Adelstein was fine and we can remove that portion if clarifies the issues. Page 130 August 18, 2005 COMMISSIONER STRAIN: Basically, then, the first ten suggested stipulations would stand. And I agree with the chairman. I was under the impression we had to weigh in on it. I don't think it's our purview. It's nice to know that it isn't our purview to have to do that. MR. BELLOWS: For the record, Ray Bellows -- MR. WHITE: I think your desire -- MR. BELLOWS: If you look at your rezone findings-- MR. WHITE: Right. MR. BELLOWS: -- Page 1 of 4, it clearly says, whether the proposed change will be consistent with the goals, objectives and policies of the future land use -- element of the Growth Management Plan. Now, that's requirements for this Planning Commission. But the Board, as previously stated, can make other findings. MR. WHITE: And I thought that you had adequately addressed both what your charge is and those things that arguably you cannot intercede the distance to make the final finding on with respect to consistency by couching it as a recommendation to the board of a finding of consistency and a recommendation based on that, otherwise, of approval, with those stipulations enumerated. That's how I understood the form of the motion and didn't see that legally it required anything changed in order to comply with both what you are responsible to do and, arguably, which you can't do that remains, you know, the jurisdiction of the board, that being specifically to make a finding of consistency or not. You are making a recommendation in that regard, and I think that's appropriate. CHAIRMAN BUDD: We have a motion and a second on the floor to make a recommendation to the Board of County Commissioners. If there is any further discussion -- COMMISSIONER ABERNATHY: Yes, sir. Page 131 August 18, 2005 CHAIRMAN BUDD: Mr. Abernathy. COMMISSIONER ABERNATHY: I think we're on dangerous grounds if we forward to the BCC things that we believe are not consistent with the Growth Management Plan. I don't think that's our position at all. CHAIRMAN BUDD: Okay. COMMISSIONER ABERNATHY: So I can't vote for it, as it's stated. I think it could be stated in a way that expresses my view that yes, but, is what we're saying. But this is -- we're just saying flat out, approve it. COMMISSIONER STRAIN: No. I think we have eliminated that comment from our recommendation. We're just saying, here is the stipulations which we would recommend approval. Obviously it's going to be subject to their creating a policy in which -- that this applies pursuant to the GMP, at least that's what I'm thinking. MR. BELLOWS: For the record, again. Ray Bellows. I think you can make your recommendation that -- you can forward a recommendation of approval subject to the board finding the project consistent with the comprehensive plan. COMMISSIONER ABERNATHY: That's good. CHAIRMAN BUDD: Okay. Mr. White, is that -- MR. WHITE: That is the essence of what I took the original motion to be. CHAIRMAN BUDD: Good. Excellent. Stop right there. Does the motion maker -- COMMISSIONER MURRAY: I would -- CHAIRMAN BUDD: -- and the second -- COMMISSIONER ABERNATHY: I wish you had just said that. CHAIRMAN BUDD: Okay. Any further discussion on the motion? COMMISSIONER ADELSTEIN: Call the question. Page 132 August 18, 2005 CHAIRMAN BUDD: There being none, all those in favor of the motion signify by saying aye. Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: All opposed? COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN BUDD: Please raise your hand if you are in opposition. Mr. Midney and Ms. Caron. The motion passes 7 to 2. Thank you very much. Moving on to our next agenda item, we had modified Item 9, Old Business, to add in some discussion about owner notification at the request of Mr. Adelstein. COMMISSIONER ADELSTEIN: What happens now is, I think all of you are aware, that owners within 500 feet of an issue that has come to the floor are given an opportunity to come -- notice, get a letter and are notified that on that particular date the hearing on their issue will come before the board. That kind of thing. What is happening now is that, for example, the September 1 st meeting, the letter to the owners went out on August 3rd. We know that, by our own situation, that a certain amount are going to be moved on to other dates because of issues. Now~ with this length of time between it, it's going to be a great number of these people, who are going to be coming to a meeting, expecting to be protecting their home rights and find out that the meeting isn't going to go forward on that particular Page 133 August 18, 2005 date. Now, the rules of law say they have to be notified. What is happening here is the county is taking the situation of, well, we notified you and you've got to follow up to find out whether or not it's going to happen. These people, many of them, are coming from -- taking time off of their jobs. I feel that there has -- that staff should find a way to let people know when a situation, at reasonable length, will be put on to another level, not like something today, which nobody could have guessed that is going to happen sometime. But, in this situation, I have watched people come in here and the meeting is not there and they look at each other and they missed a day's work, done this and done that. I think staff should take a look at this and see if there's any way, for example, that, if a person calls staff stating that they want to come to this meeting and leave a phone number, that they could be called back if in fact, within three days of the thing, of the meeting, that the meeting is not going to go forward. Otherwise, it's just a -- it's not an amenable, clean thing. We're now going to end up with at least probably close to 50 percent of these, by that letter situation, not go forward at the time that they are told it's going to go forward. MR. BELLOWS: For the record, I think we want to address that by looking at an LDC Amendment that would refer back to the 15 day requirement to have the letter sent out. It does pose a lot of problems with consistency that people will be notified early on via letter, only to have the letter be superseded a week later, let's say, by -- for whatever reason, of continuation. COMMISSIONER ADELSTEIN: I think, if you gave them 15 days, give them at least a reasonable account of what could happen. MR. BELLOWS: I've discussed this with our staff that does the advertising and they have a tremendous amount of trouble implementing a two tiered notification process, one at the 21 days and the remainder at the 15 days. It's inconsistent, the way it's written now, Page 134 August 18,2005 and we're looking at trying to fix that, and because of this very situation you've -- COMMISSIONER ADELSTEIN: And they have expanded that out now, beyond, because the 3rd of this month until the 1st of next month is not 15 days. MR. BELLOWS: I agree. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Is the agenda on the web site where somebody could check that, even at the 11 th hour? Maybe that would be the way to do it. MR. BELLOWS: That's a good idea and I'll follow up on that. COMMISSIONER SCHIFFER: The other thing, too, is there a time limit because some of those postponements -- I think today was a good example. The developer is ready to go, the neighbors request that, wait a minute, we want to look at it for at least two weeks. And then two weeks later the neighbors, who in this case some of the conversations were coming in from out of town, all fly in for the meeting, and then the developer decides he doesn't want to do it, yet the developer is ready two weeks ago. Could we put some sort of a deadline on continuing? The other problem is that we come in and we have one hearing because everybody is, I don't know if they are out of town or for whatever reason, they all don't want to hear the thing. So I think today is an example of how a developer or how people could really use the continuance system to tire out opposition and things like that. CHAIRMAN BUDD: Actually, Mr. Schiffer, I take an opposite viewpoint, which is, today is an example of how the kind of dialogue and negotiations that ought to occur between the residents and a developer does appropriately occur before it gets to us so that it's vetted appropriately and everybody has a chance to hear this side, that side and weigh it all out. I would hate to confine that and say, ready or Page 135 August 18,2005 not, bring it in front of us so that we can all argue here in a public forum rather than have people come in. Because I can think of specific petitions that were continued several times and then, when they came in, they said, we've hammered it all. Here is what we want. We like it. Boom. We've got a deal. That's the best of all worlds. COMMISSIONER SCHIFFER: I agree with that but I think that should be done prior to being scheduled for us to hear. Why are we using the continuance process to do what should be done prior to you putting it on the schedule? MR. BELLOWS: Well, we do have the neighborhood information meetings, which is a form of early communication that is incumbent upon or forced upon the petitioner to meet with residents, which hasn't been done previously to enacting that ordinance. To address the late continuances, there is really nothing we can do other than charge additional fees as a penalty. We have implemented that. But even during the day of the planning commission they will ask for a continuance. They are hit with additional fees for that. There is also -- it may be to dissuade some -- it won't dissuade the larger developer, but the small person being dissuaded continuing at the last minute. We also have a requirement that if there is continuance, several continuances and it goes beyond four weeks from the original advertisement, that everything has to be re- noticed, the letters have to go out again, new newspapers ads, the signs have to be redone. So we try to -- we don't want to discourage petitioners from meeting with residents. If some issue comes up at the last minute -- and it's really incumbent upon them to meet with them and resolve those issues. And I don't -- personally would not like to see anything done to prohibit them from doing that. CHAIRMAN BUDD: Okay. Any further discussion on that item? COMMISSIONER ADELSTEIN: All I'm saying is, I would like Page 136 August 18, 2005 to have a decision made in the near future. CHAIRMAN BUDD: Ray, could you report back to us, how you are going to respond to that challenge? MR. BELLOWS: Okay. CHAIRMAN BUDD: Thank you. Just one other thing I would like to bring up. During the break Mr. White asked me for a clarification. Earlier today we had the LDC Item 2A that we are going to hear again at a future date, and my -- I clarified to Mr. White, and I wanted the planning commission to either agree with me or straighten things out, that our future discussion of Item 2A is a continuation of our proceeding and not a second or new hearing, the significance being a second hearing would require readvertising. And I indicated to Mr. White that it would be a continuation of the meeting. And I wanted to get an affirmation of the planning commissioner that either indeed that's what we did or let's straighten things out. COMMISSIONER ADELSTEIN: So moved. Let's just make it a motion. CHAIRMAN BUDD: Indeed, that's what we do. And is that sufficient, Mr. White, by affirmation that I told you the truth? MR. WHITE: A meeting it is. CHAIRMAN BUDD: Deal. So, with that, we're adjourned. (Meeting adjourned at 1:10 p.m.) Page 137 August 18,2005 ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:40 p.m. COLLIER COUNTY PLANNING COMMISSION RUSSELL A. BUDD, Chairman Page 138