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CCPC Minutes 09/15/2005 R September 15,2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION NAPLES, FLORIDA, September 15, 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: Mark Strain Kenneth Abernathy Lindy Adelstein Donna Reed Caron Paul Midney Robert Murray Brad Schiffer Robert Vigliotti Russell Budd (Absent) ALSO PRESENT: Ray Bellows, Zoning & Land Dev. Review Joseph Schmitt, Community Dev. & Env. Service Marjorie Student-Stirling, County Attorney Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, SEPTEMBER 15, 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 - AUGUST 4, 2005, REGULAR MEETING 6. BCC REPORT- RECAPS - Not Available at this time 7. CHAIRMAN'SREPORT 8. ADVERTISED PUBLIC HEARINGS A. Petition: BD-2005-AR-7600, James Dyer, represented by Quin L. Kurth of Turrell and Associates, is requesting a 19-foot boat dock extension from the 20 feet allowed for a protrusion of39 feet into a waterway. The subject property is located at 167 Cays Drive, Port of the Islands (The Cays), Phase II, Lot 53, in Section 9, Township 52 South, Range 28 East, Collier County, Florida. (Coordinator: Joyce Ernst) B. Petition: BD-2005-AR-7750, George Cramer, represented by Quin L. Kurth of Turrell and Associates, is requesting a 15-foot boat dock extension from the 20 feet allowed for a protrusion of35 feet into a waterway. The subject property is located at 164 Venus Cay, Port of the Islands (The Cays), Phase II, Lot 59, in Section 9, Township 52 South, Range 28 East, Collier County, Florida. (Coordinator: Joyce Ernst) 1 .....-,.,..-.--' C. 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) CONTINUED FROM 8/18/05 D. Petition: CU-2003-AR-4647, Mitchell D. House, represented by Donald J. Murray, AICP, of Coastal Engineering Consultants, Inc., is requesting a Conditional Use to allow for the establishment of an eco- tourist facility in the Rural Agricultural-Area of Critical State Concern/Special Treatment Overlay (A- ACSC/ST) zoning district pursuant to Section 2.04.03, Table 2, of the Collier County Land Development Code. The subject property is located approximately 'X of a mile west of S.R. 29, on the north side of U.S. 41, in Section 25, Township 52 South, Range 29 East, Collier County, Florida. (Coordinator: Heidi Williams) E. Petition: CU-2005-AR-7586, Southern Centers in Naples, LC, in regards to Office Depot, represented by Wayne Arnold, ofQ. Grady Minor and Associates, P.A. and Richard Yovanovich, ofGoodlette, Coleman and Johnson, P.A., requesting a conditional use to allow an office supply store in excess of 5, 000 square feet within the C-3 zoning district (with an ST overlay) pursuant to the previous LDC Section 2.2.14.3.11. The subject property, consisting of 4.02 acres, is located on the northeast corner of Collier Boulevard and Tamiami Trail East (US 41), in Section 3, Township 51 South, Range 26 East. (Coordinator: Kay Deselem) F. LDC Special Cycle 2a. 2005, Continuance of the hearing, specifically on the proposed amendment for PUD expiration and retirement of excess numbers of dwelling units. CONTINUED FROM 9/1/05 9. OLD BUSINESS 10. NEW BUSINESS - Election of new Planning Commission Chairman 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 09-15-05 ICCPC AgendalRBIsp 2 September 15,2005 CHAIRMAN STRAIN: We'll call this meeting of the Planning Commission to order. If you'll all rise for the Pledge of Allegiance, please. (Whereupon, the Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay. We'll start with the roll call: Mr. Murray? COMMISSIONER MURRAY: Here. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. CHAIRMAN STRAIN: Mr. Mindy? COMMISSIONER MIDNEY: Present. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. CHAIRMAN STRAIN: Mr. Budd is absent. Mark Strain is here. Mr. Abernathy? COMMISSIONER ABERNATHY: Here. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Here. CHAIRMAN STRAIN: We have all but one person here today. First item on the agenda is addenda to the agenda. COMMISSIONER ABERNATHY: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER ABERNATHY: I would like to move that we delete item -- or the item listed under item 10 new business, election of new Planning Commission Chairman with a view towards rescheduling it on the 6th of October in accordance with our longstanding custom. COMMISSIONER MURRAY: So moved. CHAIRMAN STRAIN: Okay. There's been a motion and a second. Is there any other discussion? Page 2 September 15,2005 (No response.) CHAIRMAN STRAIN: Hearing none all in favor. COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Chairman-- COMMISSIONER STRAIN: I'm sorry, Mr. Murray. COMMISSIONER MURRAY: I have absolutely no expectations of being elected as Planning Commission Chairman, but I will not be here on the 6th. Is that anything meaningful in the event that there were any other positions that would be open? Does a person have to be here to be elected to something if they were nominated? I'm just more curious than anything else. COMMISSIONER STRAIN: I don't believe so, Bob. I know that in the years I've been on the commission we've always afforded the new seated commissioners the ability to participate in the election that they will be sitting under for the following first year, and so that's why the 6th has always been the date. COMMISSIONER MURRAY: I was just really curious more than anything. Thank you. COMMISSIONER STRAIN: Just for reassurance, can we have the vote again on the motion. COMMISSIONER ADELSTEIN: We already had one. COMMISSIONER STRAIN: I'd just like to ask for a reaffirmation. All those in favor. COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. Page 3 September 15,2005 COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Nobody is opposed. Thank you. Any other addenda to the agenda, Ray? MR. BELLOWS: Yes. Item 8D has been continued until October 20th. COMMISSIONER STRAIN: I did see some email about that last night. Is there going to be packages distributed today? MR. BELLOWS: My understanding is that is in the process of getting the corrected EIS and all the relevant materials out to you. COMMISSIONER ABERNATHY: Latest message said that it wasn't going to be distributed today. It would all be sent once the EAC meets and reports. COMMISSIONER STRAIN: Yeah, there is more information coming on that item. Yes. Any other changes? MR. BELLOWS: No other changes that I have. COMMISSIONER STRAIN: The Planning Commission absences. We have two meetings coming up. One is, I believe next Wednesday. Is that right, Ray? And the time is 2: 00 p.m. And where is that going to be held? MR. BELLOWS: We're looking it up. MR. SCHMITT: It's in the boardroom. COMMISSIONER STRAIN: It's here next Wednesday at 2:00 p.m. MR. SCHMITT: That's correct. COMMISSIONER STRAIN: Are any members of this commission not going to be able to make it? COMMISSIONER MIDNEY: I might not be. I'm going to try to Page 4 September 15, 2005 do what I can. COMMISSIONER STRAIN: Mr. Budd won't be here so that leaves the quorum. And the meeting after that is October 6th, the first meeting in October. COMMISSIONER MURRAY: I will not be here. COMMISSIONER STRAIN: Mr. Murray won't be here. We will be seated with new members, but those members that are here, are all of you planning to attend on October 6th? (All affirm.) COMMISSIONER STRAIN: Okay. Approval of minutes for August 4 regular meeting. COMMISSIONER ADELSTEIN: So moved. COMMISSIONER MURRAY: Second. COMMISSIONER STRAIN: Motion made and a second. Are there any discussions, corrections, comments to the minutes? (No response.) COMMISSIONER STRAIN: Hearing none I'll call for the vote. All those in favor. COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anybody opposed? (No response.) COMMISSIONER STRAIN: Ray, do we have any BCC reports? MR. BELLOWS: Yes. Last Tuesday the board heard petition AR-6449, which was the doctor's variance, and the board zoning Page 5 September 15, 2005 appeals approved that by a vote of four to one. They also heard the amendment to the Bembridge PUD, that was the former site, or the proposed site for the EOC. The board eliminated that as a use to be considered for the Bembridge amendment, but they approved that amendment by a vote of four to one permitting the school use, the emergency EMS site, and to keep the residential uses as a permitted use within the PUD and that was approved four to one. COMMISSIONER STRAIN: Actually, the county ended up owning the Bembridge PUD with remaining land then. MR. BELLOWS: At this point. COMMISSIONER STRAIN: Okay. Well, the value's gone up. We might see some profit for a change. MR. BELLOWS: And during that meeting they also discussed the Lely site as a possible, determined that it did permit the EOC facility and maybe Joe can elaborate more. MR. SCHMITT: On another motion they approved a $91,000 amendment to the contract to redesign or site adapt the EOC building, or the emergency building to the Lely site. We will be bringing that back, not as a requirement but just for information. Jim Mudd had asked that I schedule for this board to hear that. At least the architect to give an overview of the site plan so the Planning Commission has an understanding of what's going to be built out at Lely. And of course the chairman thanked the Planning Commission for their part that they played in the entire aspect of this rezoning and the overall design and ultimately the final approval of the EOC. COMMISSIONER STRAIN: I'm glad it finally got worked out. COMMISSIONER ABERNATHY: Joe, the way I heard or understood what was said, the Lely site is going to go through the normal public process. MR. SCHMITT: Not so. It's already a permitted use. It's been determined to be a permitted use. The zoning authorizes the construction of an office building that's been deemed a permitted use Page 6 September 15,2005 so there will be no -- we'll still go through public meetings. COMMISSIONER ABERNATHY: That's what I'm saying. MR. SCHMITT: Only the public -- I'll call it public meetings, but the neighborhood meetings to keep the surrounding neighborhoods, at least advise them as to what will be built so they can actually see and have a part in understanding, or at least a part in determining landscape or any other type of criteria to help screen the building. COMMISSIONER ABERNATHY: Does the resuscitated EAC get a shot at it? Environmental Advisory Council. MR. SCHMITT: No. There's no need -- again, it's a permitted use. It's not a rezoning so it could be -- it's authorized to be built there today. COMMISSIONER STRAIN: What category is it authorized under? I mean, how would they have foreseen this kind of structure at Lely? MR. SCHMITT: It -- the petition -- well, the zoning went through the zoning director was a determination that the current zoning was authorized. It was an official interpretation requested from the facility, director of facilities, to the zoning director. Zoning director deemed, based on the description of the use that it fell into the category of office buildings, which is authorized under that. It's currently under a 30-day appeal period, if anybody wishes to appeal that decision. But it's been advertised in the Naples Daily News and it's so noted that it's determined to be permitted use in that site. COMMISSIONER STRAIN: So that means anywhere that we're zoned for office buildings in Collier County -- if an office building comes in and wants to put in a 200-foot tower, it's now permissible. MR. SCHMITT: We're not talking about the height. The height is already authorized for that regardless of what you build. COMMISSIONER STRAIN: That tower is authorized already? MR. SCHMITT: Tower as accessory use, yes. Page 7 September 15, 2005 COMMISSIONER STRAIN: So that means anybody with an office building could put a tower in similar to that since now the standard has been set by what we've done in Lely. MR. SCHMITT: I wouldn't say that categorically. Depends on the zoning. The zoning was deemed to be appropriate. The tower was deemed to be an accessory use and authorized and the site itself is an office building. The office building is authorized for that site. It will be collocated with the library that will be built on that site as well. COMMISSIONER MURRAY: Joe, not to belabor it, but you said it's permittable as 75 foot I thought was the maximum. MR. SCHMITT: No, sir. Hundred foot is authorized, if I recall. I'm speaking from memory now. COMMISSIONER MURRAY: Okay. I could have sworn it was 75, but okay. COMMISSIONER STRAIN : Well then, the only other thing I'd like to ask is since these official interpretations modify or clarify directions that are part of PUDs and issues that we deal with, would it be unreasonable to request from now on any and all official interpretations issued be copied to this Planning Commission in our packets? MR. SCHMITT: I-- COMMISSIONER STRAIN: I'd like to see the reasoning behind them. It would help us understand better when we come up for LDC amendments. MR. SCHMITT: I would only question as to why. It's -- I certainly will provide them if you want them, but it's public information. The official interpretation was advertised in the Naples Daily News and it was -- and public information provided that in fact the determination was made. COMMISSIONER STRAIN: Joe, I'm not criticizing you, I'm just asking for better information. I think it's important that we understand how staff views all the languages that we end up passing Page 8 September 15, 2005 either in PUD form or in LDC form. The interpretations would give us some insight into that, not saying we want to criticize them because we'd receive them after the fact anyway. Is there a reason we couldn't get copies since they are public record? MR. SCHMITT: I will certainly provide the information in your packets any OI that's been determined by the zoning director. COMMISSIONER STRAIN: I think that would be handy for the rest of the board -- MR. SCHMITT: I looked at the county attorney, if this is the proper form to debate it, so that is something that's an appeal process to the board of zoning appeals. Anybody that disagrees with an OI and I would say would be improper for this panel to debate the merits of it though. COMMISSIONER STRAIN: Joe, I'm not disagreeing with anything. I'm not challenging anything. I simply for informational purposes, can't we get copies. MR. SCHMITT: Yeah. COMMISSIONER STRAIN: That's all. MR. SCHMITT: I agree. But, Mark, all I'm asking is that, you know, if we're going to debate -- I'm not debating that I just don't want to at this form debate the decision that was made because there are -- it would somewhat run circles around the process. COMMISSIONER STRAIN: I wasn't proposing it for that reason. MR. SCHMITT: Okay. COMMISSIONER SCHIFFER: Joe, I mean, make it available after the appeals period so that's never an issue. One thing, would these be available for the public too? In other words in building codes there's an equivalent called a declaratory statement where the building commission makes a judgment on code. It's very handy when you're working with the code to be able to see that there was a declaratory statement and review it. Are these Page 9 September 15,2005 available in any format like that where somebody could go to a web site, see what code issues have had -- MR. SCHMITT: They're noticed in the paper. I don't think we published it on the web site. COMMISSIONER SCHIFFER: I don't think all the professionals are reading the Naples News to see what decisions are made. I mean, once they're made, are they available to the public? MR. SCHMITT: Yes. MS. STUDENT -STIRLING: It's public record. MR. SCHMITT: It's public record. COMMISSIONER SCHIFFER: And how would somebody know what sections of the Land Development Code have interpretations? MS. STUDENT-STIRLING: Well, this would be an interpretation of a PUD, which is an amendment to the Land Development Code. And I would think -- I mean, I haven't read the particular advertisement in the Naples Daily News for this, but I would think it would be some reference to the ordinance and section that were, you know, is being interpreted. COMMISSIONER SCHIFFER: Right. And much like an attorney deals with case law when presenting a case, a designer, or all of the other professionals I'm sure would like to have access to the judgments. MR. SCHMITT: Well, there's another one right now that's similar and that's the situation dealing with the boat canopy issue. Again, that was a request from the zoning director, or actually from the Code Enforcement Director to the Zoning Director to make it a ruling under zoning criteria for the canvas or vinyl boat covers, so we'll give you that one as well so you can understand. COMMISSIONER STRAIN: Joe, the only reason is, if we see how staff has got -- where staff has to interpret something because it isn't clear enough in the code, or isn't clear enough in the PUD that we Page 10 September 15, 2005 passed, we might think about that when it's before us and try to make it clearer so we have less need for interpretation. MR. SCHMITT: I have no problem with that, and we will certainly provide copies in the future. COMMISSIONER STRAIN: Mr. Abernathy. COMMISSIONER ABERNATHY: Joe, when we hear the new EOC matter, remember when we heard it before, we had problems with it far beyond just the site being across from Countryside. We didn't like the windows. We're not in conformance with the code. The landscaping wasn't in conformance with the code, blah, blah, blah and so forth. Are we going to be able to address those matters when it comes before us? MR. SCHMITT: Probably only for information, but you normally don't address those anyway. Those are all site planning issues. We cover those as part of zoning criteria if there's going to be a deviation. Normally the Planning Commission will make a rule on those, but from an architectural standard. COMMISSIONER STRAIN: But I think that's what is the question. MR. SCHMITT: Because normally you don't get into the details of how a building is designed. That's normally a staff review. You only get involved if it's a deviation -- request for deviation. COMMISSIONER ABERNATHY: We get into buffering and things like that. MR. SCHMITT: Request something that was defined for the development standards in the PUD. COMMISSIONER STRAIN: But, Joe, it's not coming before us from what I read in the paper. MR. SCHMITT: We were asked, the manager directed, we will schedule for you for information only to be aware as to what's going to be designed. We'll take your comments and incorporate them into any design, but from an official matter, this board probably has no Page 11 September 15, 2005 official capacity in making any decision on that project. COMMISSIONER MURRAY: I believe, I recall that there was a deviation requested on glass at 30 percent and down to, and that was not resolved as a result of going through the process. And I would assume then that when it comes to you it represents a deviation. MR. SCHMITT: That's a staff decision. But that's administrative process that's at the staff level for that deviation. COMMISSIONER SCHIFFER: The deviation was at the architectural standard, Bob, and there is a method within the architectural standards to handle that. COMMISSIONER STRAIN: Well, I think we have belabored this point long enough. Let's move on to the chairman's report, and this one will be short because there isn't any. The chairman is not here. Advertised public hearings. Our first meeting today is petition BD-2005-AR-7600. All those wishing to have testimony in this matter please rise to be swore in. Do you swear or affirm that the testimony you're about to give shall be the truth, the whole truth, and nothing but the truth so help you? (All affirm.) COMMISSIONER STRAIN: Thank you. Disclosures from the Planning Commission members? COMMISSIONER MURRAY: None. COMMISSIONER ADELSTEIN: None. COMMISSIONER ABERNATHY: None. COMMISSIONER VIGLIOTTI: None. COMMISSIONER CARON: None. COMMISSIONER MINDY: None. COMMISSIONER SCHIFFER: None. COMMISSIONER STRAIN: I had a meeting with Mr. Sculfield probably two months ago about some lots in this general vicinity. I'm Page 12 September 15, 2005 not sure if either this one or the one following are ones that we talked about. I can't remember the locations, but just in case for disclosure purposes, I'll mention I had that meeting. Okay, Rocky. MR. SCULFIELD: Rocky Sculfield representing Mr. Dyer, the applicant. I believe the meeting we had that was on Vanderbilt, the one that was turned down by the commission -- COMMISSIONER STRAIN: You did ask for some suggestions on one down in this area in regards to how you were going to place a dock, whether it was going to be straight out or perpendicular. MR. SCULFIELD: Oh, okay. That will be coming up. This is not one of these two petitions. That will be the Jordan petition coming up in the future. COMMISSIONER STRAIN: Just wanted to make sure the record was clear. Thank you. MR. SCULFIELD: Okay. Background, both these petitions this morning that you're going to hear are on the same canal. They're in the Port of the Islands. The Cays Phase II. Port of the Islands both-- what we're just talking about the phase II Cays, and it's a man-made subdivision. A series of man-made canals. The canals are all over 200 feet in width. They're riprap shorelines, and the way the subdivision was platted, the property line of each of those residences goes to the main high water line. So, wherever the main high water line is the property line for those residences. When the subdivision was platted, they used a platted main high waterline, meaning, this is approximately where it is. So when the surveys are done, we get the actual main high waterline, and that's what's depicted on the drawings. Actually, the old platted line is too. But all of our extensions go from the actual main high waterline. COMMISSIONER ABERNATHY Rocky? MR. SCULFIELD: Yes, commissioner. COMMISSIONER ABERNATHY This petition, the descriptive work done by the staff says that this -- it will protrude 39 Page 13 -,~_._-,_..- September 15, 2005 feet into a waterway which is 750 feet wide. Is that the Union Canal that you're talking about? MR. SCULFIELD: Okay. I'll go -- if you'll look at the - on the screen there, that is the canal. You can see the applicant's property. COMMISSIONER ABERNATHY They're both on the same canal and one of them is 218 feet. MR. SCULFIELD: That's correct. That's going across the canal. The one that we're doing right now, Mr. Dyer, is on the very end, or the head of the canal, however you want to look at that. Right here. So when they're measuring the distance, they're looking down the canal, which is -- COMMISSIONER ABERNATHY: It's not right. MR. SCULFIELD -- 700 -- well, you know, that's how they usually measure the distance out. When they're talking about navigability, are they going to interfere with anybody. Usually it's measured, they go down the canal. But, no, I know what you're saying. The canal is 218 feet wide is what it is. COMMISSIONER ABERNATHY: Well, that's the standard we would measure your 25 percent against. MR. SCULFIELD: I guess you could but that's ambiguous also, because of the situation where the lots are on these dead end canals, so, but it does -- it meets that criteria anyway. We're well within that. If you want to look at it that way, that's fine. This is pretty straightforward. He's on a -- as you can see from this screen here, and I do have other drawings. They should be in your packet. The lines, the triangular lines drawn around this dock represent the riparian lines, also the seven-and-a-half foot setback lines. The dock is fitted in there where we do meet the seven-and-a-half foot setback lines. And there was mangroves. It's a riprap shoreline, shallow near the shore. The dock is pushed out to where it works where the boat gets on the lift. The mangroves have been trimmed. It's a man-made canal. Mangroves are allowed to be Page 14 September 15,2005 removed in the footprint of the docks. In your aerial photograph you can see there's mangroves there, but they've been removed where the dock is. So, it meets the setback and the criteria. I'll answer any questions if you have any. COMMISSIONER ABERNATHY: I have a couple. COMMISSIONER STRAIN: Mr. Abernathy. COMMISSIONER ABERNATHY: If this is a man-made canal, why are those scruffy mangroves all the way around? MR. SCULFIELD: Because it was built quite some time ago. Mangroves, they seed themselves and propagate and grow up. COMMISSIONER ABERNATHY If people had been doing things in perpetuity like they have to do, there wouldn't have been any; is that right? The other question I have, this is just curiosity. On this one your dock gets -- it flares out a little bit in the area of the lift. MR. SCULFIELD: That's correct. COMMISSIONER ABERNATHY Well, on the other one it does just the opposite, it flares away from the lift. I wonder what the philosophy for all of that was. MR. SCULFIELD: Well, that's the preference with the owner. He wanted more -- he wanted a six foot -- it's a four-foot wide walkway going out to a six foot wide access deck. He wanted 60 -- COMMISSIONER ABERNATHY: He asked for two feet on one side or the other? MR. SCULFIELD: Yeah, it's just two feet towards the lift where he has more access for loading it and storing it. It's still not accessive deck area. COMMISSIONER ABERNATHY: But the other guy wants the two feet on the other side; is that right? MR. SCULFIELD: I would assume so. COMMISSIONER ABERNATHY: Okay. COMMISSIONER STRAIN: MR. Schiffer. COMMISSIONER SCHIFFER: And this isn't critical to the Page 15 -.. ---~..'-_._-.' September 15, 2005 dock, but I'm concerned about, you know, this is a 60- foot lot. Actually, the cord line is above 60 feet which would require a is-foot setback. Should we be going for an exception on the setback here also? You show that -- somehow you came up with a 59.9 foot dimension of the high water mark. But if the cord length is above 60 and the water line mark, which is longer than the cord length, the way it goes, how did we come up with 59.9? And the survey doesn't show anything like 59.9. And, again, I think it's a good design. I think it really fits, so I think -- the concern is, should we add that to this -- MR. SCULFIELD: Oh, you mean on the setbacks? COMMISSIONER SCHIFFER: Yes. MR. SCULFIELD: Is it relative to the setbacks? COMMISSIONER SCHIFFER: Because it may be such that you need a is-foot setback. MS. ERNST: For the record, my name is Joyce Ernst with the zoning and land development review. And end -- if you look at the dock section of the LDC, properties at the end of canals have seven-and-a-half foot setbacks because they have to go to the riparian line and it really, you know, gives them a minimal of area for buildable docks. I think that's what you're asking, whether the setback is seven-and-a-half or is? COMMISSIONER SCHIFFER: I didn't recall anything at the end of a cul-de-sac so I may have missed something. MS. ERNST: No, at the end of a canal they require -- they just are -- the minimum setback is seven-and-a-half feet. I Believe that's what you're questioning; am I right? COMMISSIONER SCHIFFER: No. My question was, when I read the code it showed lots that are 50-foot -- I mean, 60 feet and less and lots that are 60 feet and above. I didn't see the cul-de-sac. And I must have missed that. MS. ERNST: It's not the culdesac, it's at the end of the canal. Page 16 September 15, 2005 Lots at the end of a canal have seven-and-a-half foot side yard setback as opposed to a is-foot side yard setback, regardless of their waterfront width. COMMISSIONER SCHIFFER: Okay. MS. ERNST: Okay? COMMISSIONER SCHIFFER: l'lllook for that. COMMISSIONER STRAIN: That's something to check out. Is there any other besides me? Any other questions of the commissioners? Rocky? MR. SCULFIELD: Yes. COMMISSIONER STRAIN: Can you put on the overhead the proposed dock layout sheet? MR. SCULFIELD: Yes. COMMISSIONER STRAIN: Actually, it's white and black. It's not colored. I have one question from that sheet, if you don't mind. MR. SCULFIELD: Okay. COMMISSIONER STRAIN: Actually it's going to be a question more of staff than it is of you, so. I notice you have kept, now we've learned seven-and-a-half feet is the appropriate setback. You have kept that around your property. The adjacent dock next to you shown on this page is right at the riparian line, now how did that happen if you have to keep seven-and-a-half feet? I mean, you may not know. I guess this is an inquiry of staff and do they need -- COMMISSIONER MURRAY: They built it. MR. SCULFIELD: No, I can answer that. I permitted that dock, on a boat dock extension quite some time ago. As a matter of fact, I brought the file with me. And the file clearly shows the way it was permitted is not the way it was built. That's why today -- COMMISSIONER STRAIN: Who built it? MR. SCULFIELD: I don't know who built it. It was done quite some time ago. The previous owner is a guy named -- it was Lee Page 1 7 ---.-"-.. September 15, 2005 Arnold. And the gentleman, Mr. Dyer, who we're here today for, owns that property next door. He bought that some time ago. The dock was built by Mr. Arnold after it was permitted. Mr. Dyer bought that lot. Now he's buying this lot next door and building next door and putting in this. So it's kind of his problem right now, but he did not install the dock. What happened, the dock was installed without a surveyor laying it out. This was quite common some time ago. Now with all the rules and regulations today, most dock builders have a surveyor go out and put the points in and lay it out where we design it so it does not intrude like this one does. But, yes, somewhere in the future, you know, I might have a problem with that and they're going to have to get a variance or remove it. COMMISSIONER STRAIN: I have a feeling that somewhere in the future might come a lot faster now. So, I thought that -- MR. SCULFIELD: Well, you can -- if you look at that you can even see how the walkway is bowed and bent. I mean, it just -- it wasn't a very good construction. COMMISSIONER STRAIN: Well, I hope now that this has been pointed out, somebody will follow up on it and get it resolved. I don't have anything else. Does the staff have a report? MS. ERNST: For the record, Joyce Ernst with Zoning and Land Development. And as the applicant pointed out, this particular boat dock is to be located in Port of the Islands. And theirs is a residence right now that's under construction on that site. And that property just to the south of that, received a boat dock extension, and there's is supposed to go out 35 feet -- 34 feet. And as Rocky pointed out, it was not built the way the boat dock extension was approved. The other lot to the north did not get a boat dock extension, and, you know, at that time when they put the dock in, they didn't require one. This dock will be more perpendicular with the shoreline, so therefore, I feel it will not interfere with the neighboring docks. I have not received any comments whatsoever for or against this. It complies with the Page 18 September 15, 2005 criteria of the land development code and therefore staff recommends approval. Does anyone have any questions? COMMISSIONER STRAIN: Are there any questions of staff from the commission? COMMISSIONER SCHIFFER: No. COMMISSIONER STRAIN: Okay. Hearing none, Ray, are there any public speakers? MR. BELLOWS: None registered. COMMISSIONER STRAIN: With that, we'll close the public hearing. Entertain a motion? COMMISSIONER MIDNEY: I move that we approve BD-7600 subject to staff recommendations. COMMISSIONER MURRAY: I'll second it. COMMISSIONER STRAIN: Motion has been made and seconded. Is there any discussion? (N 0 response.) COMMISSIONER STRAIN: Hearing none, we'll call for the vote. All those in favor? COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anybody opposed? (N 0 response.) COMMISSIONER STRAIN: Nobody is opposed. Motion passes. COMMISSIONER SCHIFFER: And, Mark, looking at this slide, looks like the guy has more trouble than his dock. I mean, Page 19 ^-"-_.'- September 15,2005 obviously, the thing should slide over a little bit, but not that far. COMMISSIONER STRAIN: Like I said, the public hearing might have brought up more than Rocky had hoped, but -- Okay. Next item on the agenda is petition BD-2005-AR-7750. All those wishing to have testimony in this matter, please rise and be sworn in. Oh, it's you, Ray. Do you swear or affirm the testimony you're about to give shall be the truth, the whole truth, and nothing but the truth so help you. (All affirm.) COMMISSIONER STRAIN: Thank you. Are there any disclosures? No disclosures. Okay. Rocky, it's all yours. MR. SCULFIELD: Again, Rocky Sculfield representing the applicant, which is Mr. Cramer. Again, we're on the same canal just around on the side a little bit on this one. Mr. Cramer's dock -- the one we just did is right here on the corner, and then you come around the side over here and this is the dock we're doing now. I'm going to slide this down a little bit. On this canal -- I tried to give you an overview of this whole deal. You see the one on the very end there where this big U-dock at an angle? This right there, this dock is out approximately 45 feet out. I've done a lot of the extensions in Port of the Islands and the longest one I've done is, extends out 46 feet. This one -- I did not do that dock right there, but the best we can tell, and I'm sure it's in the records somewhere, but it is out at least 45 feet. So, the ones that we're doing today are, obviously, inside of that. The dock that's before you right now, we're asking for a IS-foot extension for a total of 35 feet protrusion into the waterway. All the same criteria apply. It's a rip rap shoreline with shallow near the shore and the dock needs to go out a little bit to get the water depth. Most docks in the area, some are closer in, some are further out, just depending on the water right at these docks. Some of the very early docks you can see on there were built in -- at the 20- foot line to avoid boat dock extensions when people put them in. A lot of these docks Page 20 September 15,2005 today have serious water problems. The one right in the corner over here that we just talked about, the one that's not conforming there at low tide, that lift and boat, you can't even use. It's on high ground. So, these canals do fill in, and a lot of these earlier docks there, some of them are having problems with water. So all the ones in now, they're pushing out with extensions. But, again the waterway width is over 200 feet so there's no problem with navigation or impact the view of the neighbors. These lots sit up pretty high off the water anyway and the docks are down lower. So that's what it is. This is -- we'll protrude 35 feet into the waterway. It's basically centered as best they could on the lot to adhere to the setback. So if you have any questions, I'll be glad to answer. COMMISSIONER STRAIN: Any questions of the applicant? (No response.) COMMISSIONER STRAIN: Hearing none, staff report. MS. ERNST: For the record again I'm Joyce Ernst with Zoning & Land Development Review. And, of course, as he said, this is also Port of the Islands. That house right there on that overview is actually under construction at the time -- at this time, but now it's been completed. COMMISSIONER MURRAY: That's interesting. COMMISSIONER STRAIN: That's a nighttime photo? MS. ERNST: Looks like we lost it. COMMISSIONER STRAIN: Night vision goggles. COMMISSIONER ABERNATHY What did you do, Ray? COMMISSIONER STRAIN: I think we get the picture, Joyce. You can continue. COMMISSIONER MIDNEY: No, we don't get the picture, but we understand. COMMISSIONER STRAIN: Yeah, we understand it. MS. ERNST: The home to the east of this had gotten a boat dock extension to extend out 39 feet. So the lot that Rocky was showing Page 21 September 15, 2005 with that angular-shaped dock, they had gotten an extension to go out 45 feet, so what he said was probably pretty accurate as to how far it protrudes. And, again, this boat will be more parallel with the shoreline where I don't see it's going to interfere with the neighboring docks. I have not received any comments for or against it. It complies with the criteria, the Land Development Code, and therefore staff recommends approval. Does anyone have questions at this time? COMMISSIONER STRAIN: Commissioner Murray? COMMISSIONER MURRAY: I do have questions. More out of curiosity. Under your secondary criteria on page five, number one where they refer to special conditions not involving water depth, et cetera, the last portion of the sentence having to do with difficult without dredging which is not a desirable alternative. Just out of curiosity, why is it not a desirable alternative in the means that you've said? MS. ERNST: I believe the Corps of Engineers, they kind of look down upon the dredging. They prefer not to dredge. I think we could ask Rocky. Maybe he could verify. COMMISSIONER MURRAY: It's not that critical a question. It just piqued my curiosity, and not a desirable alternative. You're really saying it has to do more with some governmental entity having a description against it, if I am not mistaken? MS. ERNST: That's correct. COMMISSIONER MURRAY: Okay. Thank you. COMMISSIONER STRAIN: Any other comments from the commission? (No response.) COMMISSIONER STRAIN: Thank you, Joyce. Ray, are there any public speakers? MR. BELLOWS: No one has registered. COMMISSIONER STRAIN: With that we'll close the public ,..- Page 22 September 15, 2005 hearing. COMMISSIONER MIDNEY: I move that we approve BD- 7750 subj ect to staff recommendations. COMMISSIONER STRAIN: Okay. It's AR-7750. COMMISSIONER MIDNEY: AR. COMMISSIONER STRAIN: Is there a second to the motion? COMMISSIONER MURRAY: Second. COMMISSIONER STRAIN: Motion is made and seconded. Any discussion? (No response.) COMMISSIONER STRAIN: Hearing none I'll call for the vote. All those in favor? COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anybody opposed? (No response.) COMMISSIONER STRAIN: Okay. Ray, before we go on to the next one, because we will need to see the graphics on that, are you able to fix that or do you want to take a five-minute break while you-- MR. BELLOWS: Let's take a five-minute break. COMMISSIONER STRAIN: So moved. Thank you. (Whereupon, a brief recess was taken.) COMMISSIONER STRAIN: Okay. Next petition is V A-2005-AR-7444. All those wishing to provide testimony in this case, please rise to be sworn in. Do you swear or affirm the testimony you're about to give will be Page 23 September 15,2005 the truth, the whole truth and nothing but the truth? (All affirm.) COMMISSIONER STRAIN: Thank you. Are there any disclosures? (No response.) COMMISSIONER STRAIN: Hearing none, we'll proceed. The applicant. MS. RHODES: Good morning. I'm Charlotte Rhodes. My husband and I were being represented by McGarvey Homes petitioning for a variance so that we could install an enclosed screen over our pool. We were represented at the previous meeting by Bill Must who is with McGarvey Homes. He had a conflict today of time and could not appear so I am here. And I reviewed the tape of that meeting and I have three issues that needed to be clarified or corrected and I have copies for the committee members. I reviewed the tape and got this information to Ms. Valara too late for her to include it in the staff report so I apologize for that. COMMISSIONER STRAIN: Ma'am, are you Mrs. Rhodes, did you say? MRS. RHODES: I'm Charley Rhodes -- Mrs. Rhodes, yes. COMMISSIONER STRAIN: Thank you. As you might know, we're not going to have time to read this while were sitting here. I'm hoping you will highlight the high points. MRS. RHODES: That would be fine. The first point that I wanted to make was that Mr. Murray -- Mayor -- Mr. Murray. I'm sorry, asked Mr. Must directly if we were aware, the homeowners were aware when we purchased the property that there would be a problem with having this screen enclosure installed. And Mr. Must replied in the affirmative that yes we were, we were not aware of this until August. We purchased the home in May. We found out in August when they went to pull the permit that this variance would be a problem. We had our attorney review the contract. And the realtor Page 24 September 15, 2005 and the builder and the seller, both, we had discussion with both of them prior to purchasing the home about installing the screen enclosure that neither one of them indicated that there would be a problem. So, that was one thing I did need to clarify that we were not aware of. Secondly, we, I think you're aware of, the zoning was agriculture. They allow one home for every five acres. We do not own five acres. We own approximately the three quarters acres right on the corner. We do not own the property across the street. There is not going to be any kind of a guesthouse or any kind of a structure built over there. That's preserved by the Bonita Bay Group as well as wetlands and preserve. So that is not our property. I felt that there was a question about that. And there was a question about perhaps if the overlay would be in place for the Phase I as it is in Phase II. I contacted Jerry McPherson at Bonita Bay and he advised me that there is no plans for Bonita Bay to rezone the Phase I into a residential. So that was step three issues I didn't want to address. Thank you. COMMISSIONER STRAIN: Okay. Is there any -- I have some questions. Any other questions from commissioners? I guess it might be more of ownership. The tax accessors map said, apparently is what's on the screen in front of us; is that correct, Ray? MR. BELLOWS: That's correct. COMMISSIONER STRAIN: The yellow generally signifies ownership. And seems to indicate you do own across the street and even out into the water a little bit. You're saying you don't own those? MRS. RHODES: No, we do not own that. COMMISSIONER STRAIN: Ray, maybe you can answer me. How can they build a house in the manner they've built it on if it's not zoned ag? You've got to have a minimum of five acres to build a house, I believe, and it -- I think it's been acknowledged this is zoned ago So now, how do we get the house there? MS. V ALARA: Catalina Valara, principal planner with Zoningi Page 25 September 15, 2005 & Land Development Review. The survey showed that the property is, yes, the five acres. And I don't think we can show the whole platted land, but it is. COMMISSIONER STRAIN: It is five acres? MS. VALARA: Yes. COMMISSIONER STRAIN: So they do own five acres? MS. VALARA: Yes. COMMISSIONER STRAIN: This lady actually bought more property than she thought. COMMISSIONER SCHIFFER: Mark, I think, isn't there an easement? The parcel she's aware of is the part on one side of the road. The stuff on the other side of the road is an easement for common areas though, whether that's a technicality or not. COMMISSIONER STRAIN: It's that-- COMMISSIONER SCHIFFER: You do own it but you just don't have access to it to use it. COMMISSIONER STRAIN: The reason I'm trying to make the point, Brad, is that that was the problem with the Twin Eagles development. MR. SCHIFFER: A little trickery. COMMISSIONER STRAIN: They went ahead and zoned all these parcels to a size that could be built upon under the zoning laws at the time. There was a big brouhaha over it and I know there was a settlement of some kind. I have not seen and I don't think the public has seen in regards to how that kind of boiled down, but I believe they gave easements over the portions that they weren't used to build on for some other use. And this is all what I've heard. I haven't seen any of this documentation. But this may be why this appears to be what it is today and why the lady thinks she doesn't own the five acres because it's lit up in easement or some other format. I want to verify that you do have the five acres, because without that, I would be questioning why you could even build there to begin with. So-- Page 26 September 15, 2005 MRS. RHODES: We actually pay taxes and only have ownership of like the three quarters acres of where our house sits. Whatever the easement or whatever all out into the lake, that is all common property and Bonita Bay maintains it and it's common property. It is not my property. COMMISSIONER STRAIN: I understand what you're saying, ma'am. Thank you. MR. SCHIFFER: I'm just curious on one thing. On your tax statement, what acre does it show you own? What is the number of acres you own? MRS. RHODES: Approximately three quarters. It's to the best of my knowledge. It does not show we own five acres. We do not pay taxes on five acres of land. COMMISSIONER STRAIN: Well, I mean, we're kind of digging a hole here in a different direction. And I'm not sure why we need to go -- I brought it up simply to clarify the record that you technically, I don't believe could have a house there if you own just three quarters of an acre. Because you're there under a zone ag that requires you to have a minimum of five acres. So somehow that happened and I just wanted to make sure the record was clear that you are legally there. Mr. Abernathy, you had a question? COMMISSIONER ABERNATHY Yes. There's a couple of photos in the file. It's called existing conditions. MR. SCHMITT: Mr. Abernathy, can you pull your microphone a little bit closer. COMMISSIONER ABERNATHY: Yes. MR. SCHMITT: Thank you. COMMISSIONER ABERNATHY: The existing condition on page seven of the staffreport. The house that's to the -- would be the east of you there. Have they taken a position on this matter? MRS. RHODES: I talked to the lady who owns the home and Page 27 ____~_'".H_____"'_ --.--- September 15,2005 she was all in favor. That was a verbal to me when I talked to her. And she said they have no problem with us. In fact, they would like to have an enclosure there. COMMISSIONER ABERNATHY: She's never written a letter one way or the other? MRS. RHODES: She was leaving -- she told me she was leaving for Hawaii with her grandchildren and she was sorry she didn't have the time, but I did speak with her, yes. COMMISSIONER STRAIN: Are there any other questions of the commissioners? (No response.) COMMISSIONER STRAIN: Hearing none, staff report, please. Thank you, ma'am. MRS. RHODES: Thank you. MS. V ALARA: Again, for the record, Catalina Valara, principal planner with Zoning & Land Development Review. On the -- on August 18th you asked staff to investigate if the standards containing the rural fringe overlay zoning will allow a permit, the proposed pool enclosure. We did investigate and the standards contained in this overlay are the same as in the underlying zoning, that's the ag zoning, so the variance will still be required if the pool enclosure will still be, you know, still be sought for. COMMISSIONER STRAIN: So, the solution that Mr. Anderson apparently is doing on another part of the project or somewhere nearby doesn't work for this parcel, is that what -- MR. BELLOWS: Correct. COMMISSIONER STRAIN: Okay. Is there any other thing further you want to add, or that's the end of your-- MS. V ALARA: That's it. COMMISSIONER STRAIN: Any questions of staff on this matter? Since we asked a lot of questions before, hopefully we can get through this. Page 28 September 15, 2005 Are there any public speakers, Ray? MR. BELLOWS: No one has registered. COMMISSIONER STRAIN: With that, we will close the public hearing. I'll entertain a motion on petition V A-2005-AR-7444. COMMISSIONER ADELSTEIN: I move that AR-7444 before the Board of County Commission recommendation of not approval. COMMISSIONER STRAIN: Is there a second to that motion? COMMISSIONER MIDNEY: I'll second. COMMISSIONER STRAIN: Motion and second by commissioner Midney. For discussion. COMMISSIONER ABERNATHY: Yes, Mr. Chairman. Looking at this photograph, on the bottom of page seven it just strikes me that a year from now, or two years from now, nobody will know that there was even a request for a variance. The next-door neighbor doesn't care, there's a hedge row between the houses. I don't think we have any choice but to recommend disapproval, but I don't have any doubt that the BCC will approve this. So, that's all I've got to say. COMMISSIONER STRAIN: Any other comments from the commission? My comments are simply that this isn't a hardship, it's self- imposed by the builder. The property owner could have researched this through county codes and figured it out as many people have. I didn't see any preexisting conditions that warrants the variance. There's no difficulty left as is in the sense that they can still put a cage around it, it just might not be convenient to get around the pool. I don't see any impact on the health safety and welfare of the public. And I do find it being inconsistent with the Land Development Code for the setback violation that will be proposed, so for that reason, I would likewise support the motion. Brad? MR. SCHIFFER: and that is the sad thing. We do have the responsibility to come up with the variance. I mean, that is the service side of your neighbor's building. I don't think it would be an aesthetic issue, but the hardship was inflicted by the way they positioned the Page 29 September 15,2005 site. COMMISSIONER STRAIN: Jennifer, did you have a comment? MS. BELPEDIO: Jennifer Belpedio, assistant county attorney. It's difficult for me to tell which commissioner is speaking at all times. But I just wanted to make sure that the person making the motion, which I believe is Mr. Adelstein, will specifically incorporate the basis for denial citing to one of the criteria into his motion. COMMISSIONER STRAIN: Such as those that I mentioned? MS. BELPEDIO: He can do so if that's his motion. COMMISSIONER ADELSTEIN: As an amendment, I will accept it. COMMISSIONER STRAIN: It was Mr. Adelstein by the way, that made the motion. And he's incorporated my criteria into his motion. Is that supported by the second, Mr. Midney? COMMISSIONER MIDNEY: Yes. COMMISSIONER STRAIN: Yes, it is. Thank you. Any further discussion? Hearing none, all those in favor. COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anybody opposed? Motion carries for recommendation of denial. We will go on to the next petition. CU-2005-AR-7586, Southern Centers in Naples LC, Office Depot. All those wishing to provide testimony in this, would you please rise and be sworn in. Do you swear or affirm the testimony you're about to give on the Page 30 September 15, 2005 matter now in hearing shall be the truth, the whole truth and nothing but the truth so help you? (All affirm.) COMMISSIONER STRAIN: Disclosures from staff? I mean, disclosures from commission? I'm sorry. COMMISSIONER SCHIFFER: None for me. COMMISSIONER STRAIN: Well, looks like I'm the only one then. I've had discussions with the applicants represented by Mr. Y ovanovich over landscaping issues and traffic issues. Hopefully they re will be clarified today. COMMISSIONER ADELSTEIN: Mr. Chairman? COMMISSIONER STRAIN: Yes, Sir. COMMISSIONER ADELSTEIN: I want to remind the staff -- I mean, the board that is a conditional use. COMMISSIONER STRAIN: So we need to sign our papers and make sure we turn them in to you by the time we finish. COMMISSIONER MURRAY: And I just mentioned that I had a conversation with staff briefly regarding stipulations. COMMISSIONER STRAIN: Okay. Mr. Yovanovich. Please go ahead. MR. YOV ANOVICH: Good morning. For the record, Rich Yovanovich of behalf of the petitioner. With me I have Kevin Buckley and Randy Kella. They're both owners of the property. Wayne Arnold with Grady, Monor & Associates, the professional planner on the project, and Ray Garvey, with Vanesse & Daylor our transportation engineer. They can answer any questions you may have regarding those topics. I'll give a brief overview and then we'll open ourselves up to any questions you may have. The property is approximately four acres in size. It's at the northeast corner of US 41 and Collier Boulevard. The existing zoning on the property is C3. As you can see on the visualizer, we're adjacent to the Falling Waters PUD to the north. And there's an undeveloped piece of agricultural Page 3 1 September 15,2005 land directly to the east that's within the activity center. Across the street from us to the west would be the Lely resort project and all of their commercial development. To the south and the east is also an activity center property with commercial zoning, And to the south and west is also within the activity center and commercial zoning. There's an existing St permit on the property that addresses, you know, that was intended to address protecting the alleged sensitive areas on the property. What we're proposing is consistent with the ST permit that's already on the property and we will, you know, honor the previous commitments regarding landscaping and location of building and improvements. I want to also put on the visualizer our site plan. I don't know if in your packet is the previous ST approval or not, but as you can see what we've done -- and we believe that this is better for the community adjacent to us than what was previously there. The previous ST site development plan had a restaurant located closer to 951 and all the parking near the residences. We have put the Office Depot building closer to the residences and moved the parking and the noisy areas away from the residences. So we believe what we're proposing is more compatible with our neighbors than the previous site plan that was discussed. We have -- we have tried to market this property to a restaurant. We've tried -- we've had conversations with Carrabba's, Outback, Chili's, Macaroni Grill, Applebee's. There's been, you know, signs on the property for three years. We had listed the property with Grub & Ellis with the intent of trying to get a restaurant there. There's no interest from restaurants to go there. I believe that they think the comer across the street from Lely Resort might be a little bit better for them. Better access. So, since we had no luck in obtaining a restaurant, we have looked at other uses that are allowed under the current C3 zoning, and the activity center destination on the property. Office Depot is under contract to lease the property . We are Page 32 September 15,2005 coming through requesting the conditional use for Office Depot. Now, the reason we're here is because the Office Depot is greater than 5,000 feet in size, otherwise -- the use is permitted, it's the size of the user that puts us through the conditional use process. Your environmental staff has recommended approval. They've looked at how this particular site plan lays out versus the previous ST permit, and they've recommended approval. Your planning staff has reviewed it for all the necessary criteria regarding compatibility and other issues, and they are recommending approval. The condition about transportation that we have to wait until there's concurrency is something we agree to. We would be able to go forward under existing -- we're always going to be subject to concurrency. We don't have a problem with that. We know that, and if you don't approve the conditional use, we still would have to wait until there's concurrency, and that condition we agreed to and it's a condition that has been imposed by the board on other recent rezones in the area. We believe that Mr. Jarvey can get up and get into the details that the actual Office Depot use is a reduction in traffic than the existing approved restaurant, so we think that that's actually a better thing for the community and makes it more compatible. We have -- we are not aware of any objections. We have notified Falling Waters and our neighbors. We had our neighborhood information meeting. We had two people show up. They spoke in favor of the project. I believe if there were obj ectors to the proj ect, they would have shown up. Matter of fact, we heard that they even might have thought that this was Home Depot and not an Office Depot, so I would have thought with that misinformation out there, we definitely would have had a whole lot of people show up. So I guess I should have asked for the Home Depot, but I guess I can't fit it, so. With that, we agreed to, all the conditions that staff has recommended to you, I believe staff has asked for two additional. One clarification that we are going to meet Page 33 September 15,2005 the landscaping requirements approved by the previous ST, we're fine with that, and also -- and that requires some enhance buffering along the east side which was previously committed to, and we're committing to. And I think they wanted to take out a reference to phasing since we're only going to have one building. There is no phasing. Okay. Did I get them both? With that, we hope this is a fairly straightforward petition. There are no objectors, that we're aware of. And we request that you recommend to the Board of County Commissioners approval of our conditional use request. COMMISSIONER STRAIN: Mr. Murray. COMMISSIONER MURRAY: Good morning, Mr. Y ovanovich. I have a question or two. I see your site plan here. I'm also looking at a picture from Q. Brady and --let's see -- Q. Brady Minor, and then there's another one here Vanesse, Daylor. And while your presentation here appears to be more of a square, this other Vaness, Dayler seems to be somewhat of a rectangle, admittedly notched. But more interesting to me is that in the presentation -- if I could bring you to that page, and I don't know how to get you there exactly, I can take these out if I have to, but the Q. Grady Minor Associates document, aerial exhibit. MR. YOV ANOVICH: Is this the one? COMMISSIONER MURRAY: if I -- MR. YOV ANOVICH: Are you talking about the shape of the parcel, Mr. Murray, or the -- COMMISSIONER MURRAY: I am. I'm talking about in one instance it appears to be a rectangle much longer-- MR. YOV ANOVICH: Oh, it's like a flag. They did not incorporate the existing CVS drug store which is part of the overall -- COMMISSIONER MURRAY : Well, that's fine. I noted that if you're looking at that document, the Vanesse, Daylor, there are the Falling Waters, what appear to be perhaps a 12-Plex unit, the Page 34 September 15,2005 rectangles -- one of the edges ends at the second building whereas in the Q. Brady Minor, the rectangle ends in the first 12-Plex. I don't know where the property really is. MR. YOV ANOVICH: It-- COMMISSIONER MURRAY: May I give you the paper? MR. YOV ANOVICH: I think I see what you're saying. I'm looking at the -- I'm looking at both of them. And the difference is that Vanesse and Daylor's was a general location map, not to scale. The correct boundary that you need to be looking at, Mr. Murray, is what Q. Grady Minor prepared. COMMISSIONER MURRAY: Okay. So that's the relevant one. Okay. Having answered that question, I have a few questions if I may, please. How high would this structure be? MR. YOV ANOVICH: Kevin, do you know how tall the building is going to be? We'll look at the elevation for you, Mr. Murray. COMMISSIONER MURRAY: All right. And then I would go into -- MR. YOV ANOVICH: It is -- you understand that it's a single-story building, correct? COMMISSIONER MURRAY: No, I understand. I just, out of interest to know, how high that would be. MR. YOV ANOVICH: The front is 32 feet and the rear -- is that 17 feet? And 17 in the rear. COMMISSIONER MURRAY: Thank you. MR. YOV ANOVICH: You've seen -- it's similar to the one we did not too long ago. COMMISSIONER MURRAY: Okay. Then I would like to bring you to the area of special conditions where it has to do with permits. And I've just looked at the permit. It seems to -- let's see. November 30, 2001, and on the next page it indicates permits expire Page 35 ----- September 15,2005 in two years. I'm a little confused. I didn't see anything that would indicate to me that your permits are okay. MR. YOV ANOVICH: Can you tell me what permit you're talking about? COMMISSIONER MURRAY: It's always a challenge in these packets to try to refer to things here. It appears -- let's see. MS. CARON: I think he's looking at the South Florida Water Management general conditions, but they're actually five. COMMISSIONER MURRAY: That's the South Florida Water Management, yes. MR. YOV ANOVICH: We believe our -- we believe our permits are current and we will -- COMMISSIONER MURRAY: I imagine you do, but I'm just curious. I didn't see anything in here to indicate that they were again. COMMISSIONER STRAIN: Before they can get an STP, they're going to have that permit validated. COMMISSIONER MURRAY: Okay. So it's moot -- COMMISSIONER STRAIN: Right. COMMISSIONER MURRAY: -- for me. Okay. I'm sorry. I just wanted to be sure I covered all my bases. Okay. I think I'm basically -- the only other items I want to discuss after this will be transportation so I can hold off for that if you'd like. COMMISSIONER STRAIN: Okay. Mr. Schiffer and then Ms. Caron. MR. SCHIFFER: Rich, just a quick question. This was filed in 2005. Why did you reference the old LDC? MR. YOV ANOVICH: Well, I'll tell you. Because the new LDC doesn't have these requirements. For whatever reasons when you did the transfer over, the fact that this is a conditional use, doesn't appear to be a permitted use, and there was a catchall phrase in the LDC if they missed anything in the transfer over, you apply the old code. COMMISSIONER STRAIN: Except this? Page 36 September 15, 2005 MR. YOV ANOVICH: Except this? COMMISSIONER STRAIN: Except this provision. MR. YOV ANOVICH: What do you mean? COMMISSIONER STRAIN: Just kidding. Go ahead. MR. YOV ANOVICH: I'd be happy for this to be a pennitted use and move on. COMMISSIONER SCHIFFER: I mean, it is pennitted but the 5,000 foot limitation is there. So what you're saying is if the conditional use part of this was not -- MR. YOV ANOVICH: Right now, if you read your code, you wouldn't see a limitation on size. COMMISSIONER SCHIFFER: I think you would. There's a footnote -- I think it's footnote 22, limits it to 5,000 feet per tenant, which is our problem; isn't it? MR. YOV ANOVICH: Okay. MR. SCHIFFER: And then, unfortunately, there's no relief to the conditional use of that, I don't think. MR. YOV ANOVICH: Okay. Anyway, we go under the old code because there was a conditional use under the old code. And we they'll catch that glitch I think in this cycle, or whatever cycle they're going to catch the glitches in. COMMISSIONER STRAIN: Is that it, Mr. Schiffer? MR. SCHIFFER: Yes. COMMISSIONER STRAIN: okay. Ms. Caron and then Mr. Adelstein. MS. CARON: Yeah, on the prior special treatment pennit it says that you're supposed to have a letter of exemption from the Anny Corps. And South Florida Water Management District pennits or letter of exemption, we got all the infonnation on South Florida Water Management District. That came in our packet. I see nothing from the Anny Corps. Do you all have a letter of exemption from them? MR. ARNOLD: Wayne Arnold, for the record. Our finn Page 37 -.----.. ',' _..~".~.-,--...,-,,_.,_. September 15, 2005 actually did not do the ST permit, but we did the site development plan for the Eckerd, which is now CVS. That site development plan was approved. I don't have a complete set of that file here, but we were required to show the South Florida Army Corps. And I believe there was a distinction, the Army Corps wasn't claiming jurisdiction over a portion of this. That was my understanding, so the South Florida did. And mitigation was performed throughout the Panther Island Mitigation Bank. MS. CARON: Right, and that's fine. It just requires that you have a letter of exemption from them, which is not here. MR. ARNOLD: I would have to check on that. I don't know, but I'm presuming we had it to successfully obtain this CVS. MS. CARON: And speaking of the panther mitigation, that's my next question, we should have something in here that shows that the panther mitigation was done as well. MR. ARNOLD: I don't know that the panther mitigation was required at the time of the S T approval or the Eckerd approval. MS. CARON: It's under special conditions from South Florida Water Management District. MR. ARNOLD: Right. They mayor may not weigh in as a jurisdictional issue relative to the panther. That's a US Fish & Wildlife Service issue and not an Army Corps or South Florida issue. MS. CARON: But they've made it their issue. It's a special condition. MR. YOV ANOVICH: Well, the bottom line is, in order for us to get our ST approved, we're going to have to get a permit issued and meet all the compliance issues. We haven't brought documentation to show you that every condition has been met on a permit. You're rarely eve -- I don't remember ever having to come in and show you that we've done that. Those are site development plan related issues. MS. CARON: Except you're referring back to this permit and so I just want to know that the permit has been followed. Page 38 September 15,2005 MR. YOV ANOVICH: And we're going to have to follow all of that. And, obviously, we got an STP approved for the current drug store. And we're going to have to do that for any other future improvements on the site. I just brought that up so you all knew that there was an ST on the property and we were not changing, not trying to modify the areas of impact to what we're doing right now. COMMISSIONER STRAIN: At some point there's some clarifications that might help. Mr. Adelstein's turn right now. COMMISSIONER ADELSTEIN: I'd like to first before -- you did ask if I had any conflict or talked to anybody and I have. I talked to Don Scott and I didn't discuss it. I find it a little difficult to be in favor of this because basically you're sitting there waiting and waiting and waiting and I think there's something else we can do. I understand that if you are willing to participate in a fair share payment above road impact fees, which would be required in order to get this thing straightened out because US 41 and US 951 are definitely going to have to be repaired to get this thing started. I'm just wondering if we could get some of the developers in this area to get involved just to clear this matter up and get it started. MR. YOV ANOVICH: And Mr. Adelstein, I'll be happy to tell you where we are on that. We've done exactly what you're suggesting. There has -- there is a consortium existing of approved proj ect developers and people who are going to be going through the rezone process to rezone the property to do just that. To meet with staff, to talk about how we in the development community can remedy a deficiency in that area. You're not going to get every little piece, but the overall group -- COMMISSIONER ADELSTEIN: I understand. MR. YOV ANOVICH: There is a group in place. We've already had some preliminary discussions with staff about how we could fix this problem, and we will -- I'm sure we'll participate for our fair share of fixing the problem. Page 39 September 15,2005 COMMISSIONER ADELSTEIN: So, we're talking about road improvement impacts above -- MR. YOV ANOVICH: Yes, sir. COMMISSIONER ADELSTEIN: And you're willing to put this into your motion? MR. YOV ANOVICH: Well-- COMMISSIONER ADELSTEIN: On a contingent basis that you -- MR. YOV ANOVICH: Well, I can tell you -- first of all, we know that unless the road gets fixed, we can't go forward. We will work with the other developers in the area and try to get this thing fixed. I don't think it's appropriate to start dictating in this what that arrangement is going to be and how much each person's fair share is. COMMISSIONER ADELSTEIN: I'm not asking that. I'm saying, if you will participate in this, I will have a feeling that we're not just sitting here waiting spinning our wheels, we're actually going to try to move forward so you can actually develop and build this. MR. YOV ANOVICH: To the extent that we need to be a participant, we will. But we mayor may not need to be. Depending upon what happens as far as concurrency. This may be some concurrency freed up. We don't know. But yes, to assure you, there are some big players who are prepared to address the issue to both US 41 heading east and the intersection of 951 and US 41. COMMISSIONER ADELSTEIN: And you are one of those players? MR. YOV ANOVICH: Me, personally? COMMISSIONER ADELSTEIN: No. Your developer. MR. YOV ANOVICH: They haven't really been part of those discussions. They're such a small piece of the puzzle that they haven't really been encouraged to be part of the fix. COMMISSIONER ADELSTEIN: Well, I kind of feel that they should be. Again, this is -- they're on that comer lot that really is Page 40 ,",--- September 15,2005 going to sit there for a long time unless something gets done. MR. YOV ANOVICH: I understand. We understand that one of the conditions is that we don't get to go forward unless there's a fix. We also know there's only a three-year life for a conditional use that can get extended one more year. We have to figure out how we can get that done. Just out of necessity we have to. COMMISSIONER ADELSTEIN: Well, again, I can't understand why your developer wouldn't be able to accept the responsibility of getting involved with that so that it can be done. MR. BUCKLEY: Kevin Buckley, one of the owners. We are willing to get involved. We haven't been invited, to be honest with you. There have been no discussions so, I'm a little reluctant to start negotiating against myself at this point. I believe the staff recommendation says that we will get involved in a fair share agreement if that's -- that's one of the conditions I think, is it not? COMMISSIONER STRAIN: Doesn't it say that in the staff report? MR. YOV ANOVICH: It just said we have to wait until the issue is fixed. But I guess he said for the record he's willing to be a participant in the overall fix. COMMISSIONER STRAIN: I'm writing that for a stipulation. Thank you. COMMISSIONER ADELSTEIN: Thank you. COMMISSIONER MURRAY: I would speak to transportation now. COMMISSIONER STRAIN: Can I have a turn? COMMISSIONER MURRAY: No, no. COMMISSIONER STRAIN: Mr. Yovanovich has been waiting patiently for my questions. The ST overlay goes over the entire property. It's called a special treatment development permit. That's what this property obtained when it came before us in 2002. The conditional use you're asking for, and I have gone through staff Page 41 September 15,2005 with this to verify, apparently is a need not just because you want to go to a larger building, but because if you didn't get an approved conditional use, you could not then have the ST permit renewed administratively. You'd have to come back through the public process for the ST permit. Is that -- does that -- is that some of your understanding? MR. YOV ANOVICH: That's my understanding. We're doing the process we need to follow to take care of the ST issues as well as the use of the conditional use. COMMISSIONER STRAIN: Okay. That's a little different than I thought you articulated earlier. The neighborhood informational meeting that you had and today's meeting that we have, you noted the lack of attendance of neighbors. Well, this is the summer. May be contributory to that lack of attendance. MR. YOV ANOVICH: I know that most homeowners associations, and I'm fairly certain that Falling Waters is no different, have people around and they do survey their people and do what they need to do if there is obj ectors to a proj ect. COMMISSIONER STRAIN: There's a buffer along the residential portion of this project, and I spoke to you about this. It goes from the edge of the storage area and all the way to the east and ends at your property line. Do you have any objections to making sure there's a wall, a six-foot wall in that area as well? MR. YOV ANOVICH: For the residential portion? COMMISSIONER STRAIN: Yes. MR. YOV ANOVICH: I believe, yes. We have no objection. COMMISSIONER STRAIN: Staffs indication is they believe it was on the plan, but I didn't see it noted in the text anywhere, so I wanted to make sure it got added. COMMISSIONER ABERNATHY: It's already there. COMMISSIONER STRAIN: Well, it says it appears to be up labeled wall is shown inside the IS-foot wide B buffer to separate the Page 42 September 15,2005 residential uses from the commercial structure. I just wanted to make sure that it is there. MR. YOV ANOVICH: It is. That's the stipulation you can add to the list. COMMISSIONER STRAIN: You do know staff found this inconsistent with the GMP. MR. YOV ANOVICH: Unless there was a stipulation that says we could not move forward. COMMISSIONER STRAIN: And this brings up an interesting process, and maybe county attorney can comment on it. Whatever happened to being consistent as a requirement instead of being consistent as a condition? I mean, are we setting a precedent here that opens the door for basically any form of this to happen in any resolution to the GMP? If someone disagrees with it, can they get a condition and get approval and then later on get it fixed? It's kind of backwards. MS. STUDENT-STIRLING: Well, I think I might want to talk to transportation about that as well, but I think if there's a condition that they can't go forward and they couldn't go forward anyway, then we're protected. COMMISSIONER STRAIN: I'm going to have some questions for transportation to -- in comparison to the existing use because I want to understand the impact of the traffic, and hopefully Mr. Reed will tell us that they're less in a few minutes. In your neighborhood information meeting, you stated the following sentence. The following is a transcript of the meeting. And I didn't find a transcript attached. Do you have a transcript somewhere you failed to give us? It's in the packet that was provided to us. It's on -- it says D. Wayne Arnold AIC of Grady Minor & Associates and Richard represents the Southern Centers at a meeting held on August 30th at Lely High School basically. It says the transcript is following. I don't see a transcript. Page 43 September 15, 2005 MR. ARNOLD: We did prepare a transcript. It was approximately two sentences long because we simply opened the meeting and noted that one of the persons in attendance was Mario Curiale who you've seen the properties lying to the east of us. And I believe it was his wife that accompanied him. We discussed with him before we fonnally opened the meeting because there was such low attendance we kept waiting for more people to try to arrive. COMMISSIONER STRAIN: She's got to write as fast as we talk. MR. ARNOLD: I'm sorry. COMMISSIONER STRAIN: I'm trying to go slower, too. I appreciate that. So the transcript is the two sentences you've added to the page that was submitted with our packet basically? MR. ARNOLD: I didn't bring a copy of the transmittal back to staff but we dictated off of the audiotape that we took and transmitted that back to staff. COMMISSIONER STRAIN: I just wanted to make sure something wasn't missing because it appeared that way. Richard, I know you reviewed the Exhibit B landscape plan that you and I discussed. MR. YOV ANOVICH: Uh-huh. COMMISSIONER STRAIN: And staff has suggested some language that would further qualify, but I think you've stated earlier you have no problem incorporating the Exhibit B as landscaping for your project with the exception that the areas you're disturbing with your new structure, those areas will have to be relocated, but the same quantity will remain on site? MR. YOVANOVICH: Yes, sir. COMMISSIONER STRAIN: Okay. Then my next question would actually be of your traffic engineer, if he's here, which I know it must be Reed sitting there. Page 44 September 15,2005 MR. YOV ANOVICH: I think he's still here. MR. JARVEY: Reed Jarvey, for the record. COMMISSIONER STRAIN: Hi, Reed. Thank you. Could you tell me what the ADT of that 266- foot restaurant, which is approximately 8,000 square foot in size would be versus what ADT for the Office Depot would be? MR. JARVEY: I did a traffic generation for a 266-seat restaurant. I did not do an 8,000 foot one, but I did a 266-foot high turnover sit-down restaurant and the ADT is 1,285 daily trips, pass by deduction would be 43 percent, for about 552. Comes out to total about 732 trips. COMMISSIONER STRAIN: And what is the ADT for the Office Depot? MR. JARVEY: Office Depot is 662 trips, and the TIS we did not do passby because I wasn't doing a light comparison. If we do passby of about 25 percent, which is on the low side of commercial, that's a minus 166 for a total of 497 trips. COMMISSIONER STRAIN: So in either case -- you're 50 percent or less, in some cases 50 percent less than in traffic count? MR. JARVEY: It would be slightly less. COMMISSIONER STRAIN: You're actually reducing the traffic impact? MR. JARVEY: Yes, sir. COMMISSIONER STRAIN: That was one thing I wanted to know. Next will be for Mr. Scott. If anybody else has any questions of Reed, go ahead. COMMISSIONER SCHIFFER: Not of Reed. I'm sorry. Of Wayne Arnold, but go ahead. COMMISSIONER STRAIN: Reed, I think we're finished with you. Thank you. Wayne. , MR. SCHIFFER: Wayne, just a quick thing, on the site plan you showed, you described a building area of 2.6 acres. Could you change Page 45 .---~ September 15,2005 that word to be impervious? I wouldn't want anybody to think we're allowing a huge -- MR. ARNOLD: Oh, I'm sorry. Yeah, it was meant to be the building envelope that's supporting this. MR. SCHIFFER: Instead of building area, just call it impervious area. MR. ARNOLD: I don't even know that that would be the impervious area. Maybe we'll call it the development envelope, or development area because we were working based on the original ST permit, and the area that was dedicated as the natural vegetation retention area and the other landscape plan. Everything else became the Eckerds site and this proposed -- COMMISSIONER SCHIFFER: So what word -- I mean, the word building, somebody could safely assume -- this is a huge building. MR. ARNOLD: Probably something to the fact of development area, or development envelope or something to that effect. COMMISSIONER SCHIFFER: All right. MR. ARNOLD: Be happy to. COMMISSIONER STRAIN: Anything else? Mr. Murray? COMMISSIONER MURRAY: I wanted to discuss some of the transportation matters, and that would be with Mr. Jarvey, I believe first. I'm going to apologize in advance because I struggle with this stuff. I'm not clear on a lot of things so please forgive me if I am asking dumb questions. Let's start out with page one, introduction and summary. MR. JARVEY: Yes, sir. COMMISSIONER MURRAY: And your conclusions and recommendations, you speak to the roadway links in the immediate vicinity of the project. What would that be? Just help me understand what the immediate vicinity would be. Is that -- if I were to look on the visualizer here, whatever this is called, the TV screen, is the area Page 46 September 15,2005 in blue, is that the immediate vicinity or does it go beyond that? MR. JARVEY: We would -- immediate vicinity is usually the road links we touch, which would be 41 and 951 in this case, which would be exactly what you're saying. There's no real definition of immediate vicinity as such, but generally I would say the initial, what we access, which would be the blue/gray on your screen. COMMISSIONER MURRAY: Okay. Now you've indicated it will not significantly impact intersection operations and I appreciate your statement there. And it's posted at 45. There would be no need for a decellane because the traffic is already slowing on 41 going west. So I can appreciate that. Although, is there any talk of any decellane put in there? Do you have any qualification against that? MR. JARVEY: Actually that would be more defined at say a development level. COMMISSIONER MURRAY: Okay. Fine. MR. JARVEY: To have specific uses. COMMISSIONER MURRAY: All right. On page -- let's see -- three. Under committed roadway improvements. And you speak of road improvements committed for construction in order to alleviate current area road deficiencies that are currently under construction or scheduled for construction within the next two years. Is that an absolutes fact? Are we really scheduled for construction in the next two years in that area? I thought that was a consortium matter. MR. JARVEY: Which statement are you looking at? COMMISSIONER MURRAY: I'm referring to committed road improvements. And it's the second sentence. MR. JARVEY: Okay. That's a standard -- COMMISSIONER MURRAY: Boilerplate? MR. JARVEY: That's just boilerplate. We are talking about the construction projects that are in the next two years. That's not -- and the next paragraph that are those expansion projects. COMMISSIONER MURRAY: Okay. So you're saying they are Page 47 September 15,2005 absolutely scheduled; is that correct? MR. JARVEY: They were at the time this was written. Now, I will note that the second, I guess it's the third paragraph, talks about State Road 951. At that time the intention was to include it into these CR 951 expansion to the north. That has since been superseded that it's not tied to the 951 expansion to the north with the WalMart, WCI, Remar, DCA. They're actually expanding it independent of the CR 951. COMMISSIONER MURRAY: I'm aware of that. That's why I'm posing the question. I'm not really clear that that's moving forward either. It requires DOT, FDOT approval if I am not mistaken. MR. JARVEY: Correct. COMMISSIONER MURRAY: All right. If I can bring you to page four -- and here is where I prove my struggling. You reference, and I see it here, you use, because there is no -- the office supply super store is a shopping center you're using as a base line? MR. JARVEY: Yes, sir. COMMISSIONER MURRAY: Okay. And I did try to do some arithmetic here and I noticed in the site generated trip estimates, unless I misunderstood this, and I probably have, because I heard numbers that are far in excess of this. If I bring you to the line that says total, it says 60 and then 198 and then 30 percent, and then a total estimated trips of 60, and of course that's a.m. peak 17. And guess maybe I misunderstood this. Are we saying there's 77 trips? That can't be right, can it? I'm sure it means something but obviously not what I -- MR. JARVEY: Let me see. 77? COMMISSIONER MURRAY: Well, If you add 60 total p.m. trips and 1 7 total. MR. JARVEY: Oh, okay. I see what you mean. COMMISSIONER MURRAY: Help me to understand that because I'm struggling with that. I didn't believe my own conclusion. Page 48 _H"·'·_ September 15, 2005 MR. JARVEY: No. What it says is in the p.m. peak hour or-- let me just start with p.m. The p.m. peak hour is defined as the highest one hour within the time between four and six. COMMISSIONER MURRAY: I've come to know that. MR. JARVEY: Okay. The a.m. peak hours, highest hour between 7:00 and 9:00 in the morning. And it's just, what this says is that, it is anticipated that there would be 1 7 a.m. peak hour trips in that one hour. And the second hour of that two hour block would be less. COMMISSIONER MURRAY: So that's a snapshot? MR. JARVEY: It's just a snapshot. COMMISSIONER MURRAY: Okay. That clears that up for me. Because I couldn't imagine how a super store could operate with 77 trips. MR. JARVEY: No. This would be in the p.m. which is generally in all retail, is generally the higher hour is roughly 60 trips, and other hours would be less than that. COMMISSIONER MURRAY: Okay. Now on page five if you go back down and total traffic volumes. MR. JARVEY: Yes, sir. COMMISSIONER MURRAY: I'm not sure I understood the sentence. It's very much towards the bottom. It says no growth projections were computed as directed by Collier County staff. I don't understand that. MR. JARVEY: What we've done is, in recent years, we've gone to more of the concurrency level, previous to the concurrency system we have now. We would do a background growth saying that if the proj ect is going to build out in two years, we do two years of background growth and put that in your background. Now we add the concurrency banked trips to the existing traffic to do that background. COMMISSIONER MURRAY: That supersedes the prior method? MR. JARVEY: Yes, sir. Page 49 September 15, 2005 COMMISSIONER MURRAY: Okay. So you're looking at what the real state of the road seems to be? MR. JARVEY: Yes. And then we probably should change that statement -- just -- that's just the way we do it now versus, you know, when we first started doing these, staff told us that's how to do it and now it's just routine now. COMMISSIONER MURRAY: And where I had problems too is I noted that, in some instances we used 2004 and then we used 2005, then we used 2006 as references for various data. And it became a little bit more challenging for me. But on page six I wrote a question here for myself, having to do with us just than the database there, besides the Collier County traffic data manual turning, blah, blah, blah -- MR. JARVEY: Right. COMMISSIONER MURRAY: I wrote -- what year is that referencing? What year is that supposed to -- these data we use to distribute the approach volumes, what year was that? MR. JARVEY: I have to look back in the appendices. COMMISSIONER MURRAY: Because I see you have SR 951 south of US 41 a negative 203, and it seems that you have some dispositives seem to be so significant. I can't imagine we're -- we're suppose to be at 110 percent and it seemed to be we have an awful lot of trips available. MR. JAR VEY: Let me just talk about the whole thing -- COMMISSIONER MURRAY: Please. MR. JARVEY: -- down in that area. It's probably easier. What's happened, when this was prepared, which I think was April, at that point in time the portion of 951, state portion south of 41 had a -- using the concurrency system, had a negative 203 trips on it, which we had more trips. That is the total 2,173, of that number, 323 were actually bank trips, and 180 -- excuse me, 1,850 were actual measured trips on the road. We would -- what our concurrency system does is Page 50 September 15,2005 we add those together and say the total volume is 2,1 73. The level of service, or the service volume, flow volume on that road is 1,970, so you subtract the two you get a negative of 203 at that point in time. U sing the same philosophy US 41 east was done, and at that point in time, you got remaining 80 trips were available. Since that time in April of this year US 41 has gone to a negative also and is actually at 110 percent. I think it's 111 percent or something like that, of its volume. From using our concurrency management system, there's only about 600 or so trips measured on US 41, but there's 400 and -- excuse me -- 355 bank trips since then, probably another 100 or 200 bank trips which are not actually on the road, but they're in our concurrency management system. So those two roadways right now are over 110 percent of capacity. The other two roads in the area, which are 951 north and 41 west of the intersection are in okay shape. They have respectively 318 and 1,217 trips remaining. Probably a little less today, but as of this writing, they would have a fair amount of excess. COMMISSIONER MURRAY: But if this consortium of Wal Mart and Remark and WCI goes forward with a rebuilding of that intersection area, that would benefit your, you know, your client, would that not? MR. JARVEY: Yes. COMMISSIONER MURRAY: That would open the envelope. I don't recall there are that many more trips generated by that in any event. MR. JARVEY: It would only open the envelope on 951. It doesn't do anything to 41. So at the point that this was written, it probably would solve the problem for them concurrency. Since that time, the 41 has gone under, or over capacity and the WalMart fix does not fix 41. Now the consortium that Rich talked about of major players in the area is looking at working with transportation staff about a fix for the whole area. Both the 951 and the 41. Page 51 September 15,2005 COMMISSIONER MURRAY: Are you talking about the fly over? MR. JARVEY: It actually isn't determined yet, but most probably. COMMISSIONER MURRAY: Okay. If I can bring you down on page six to where it says link analysis. MR. JARVEY: Yes, sir.2. COMMISSIONER MURRAY: And if you'll go to the third sentence it says, Collier County staff has directed on other recent proj ects that the performance standard service flow rates from the concurrency segment tables, period. I think you wanted to finish that sentence, but it somehow slipped. MR. JARVEY: I think it shouldn't be a period. If you continued on and say the link tables -- COMMISSIONER MURRAY: The linked levels of service were evaluated. Okay. MR. JARVEY: Yeah. I think there's an extra period in there. COMMISSIONER MURRAY: All right. Okay. I did verify the percentages and they do seem to be based on these data tat they do seem to be applicable. I do have on page eight where the p.m. peak intersection analysis where I just wanted to be sure clear, I think you've already explained it, but I want to be absolutely positive where you reference on page eight signalized at the bottom over there, level of service D6608, and then a total traffic number of vehicles 6660.49 seconds and 48 seconds delay. MR. JARVEY: Yes, sir. COMMISSIONER MURRAY: This is data for today or data for April? MR. JARVEY: That's data projected to 2006. We had a-- COMMISSIONER MURRAY: Oh, that's the 2006 item? MR. JARVEY: Yes. Now, this is a different -- you know, we Page 52 September 15,2005 talked earlier about we used the concurrency system. COMMISSIONER MURRAY: This is Syncro, yeah. MR. JARVEY: The Syncro is the software. What it does is adding our traffic on shows approximate one second more delay. And quite frankly, that's probably not miserable, but that's what the -- COMMISSIONER MURRAY: That's what the computer tells you. COMMISSIONER MURRAY: The computer tells us that. COMMISSIONER MURRAY: All right. I think you've answered all of my questions, and I truly appreciate your patience with me. MR. JARVEY: Yes, sir, you're welcome. COMMISSIONER STRAIN: Commissioner, we'll take a ten-minute break for the court reporter. (Whereupon, a brief recess was taken.) COMMISSIONER STRAIN: We'll call the meeting of the Planning Commission back to order. MR. YOV ANOVICH: I'm just here in case you have more questions. COMMISSIONER STRAIN: I think Mr. Murray concluded his questions. COMMISSIONER MURRAY: I did. COMMISSIONER STRAIN: For Mr. Jarvey, I just had a follow-up question of something I had heard during the discussion of Mr. Jarvey. I thought I heard that there were no decellanes changing in and out of this facility. If I'm not mistaken, there are decellanes in both -- in all directions, is that correct? MR. JARVEY: Frankly, I don't remember the answer, but I believe there might be. I can't -- COMMISSIONER STRAIN: There has to be if the original plan is to have been approved on this project. MR. JARVEY: I know there is one on 951 because I actually Page 53 September 15, 2005 remember seeing that one, I just don't remember on 41. COMMISSIONER STRAIN: Well, on 41 the plan that was approved on the resolution 002422 shows the decellane on that plan Exhibit A. If it's not in, it needs to be in. COMMISSIONER ABERNATHY Yes, it does. They've got to add one for that drug store. COMMISSIONER STRAIN: I drive by there enough. I thought -- well, I wanted you to verify it for the record. MR. SCOTT: Don Scott. The right turn lane for 41 goes back beyond it, so it's a turn lane for it now. 951, we'll be dealing with the design of that with the WalMart. We'll be dealing with that issue when we come forward with that project. Whenever US 41 is rebuilt, if there's any changes to the intersection too. COMMISSIONER STRAIN: So in essence, the project does have decellanes going in both entrances? MR. SCOTT: Yeah. COMMISSIONER STRAIN: I wanted to make sure that was happening. COMMISSIONER MURRAY: Thank you, Mark. COMMISSIONER STRAIN: You're welcome. Before Mr. Scott comes up, were there any other questions of Mr. Jarvey? If not, Mr. Scott. Oh, I had a question, a follow-up question of Mr. Scott before we get to you, Kay, if that's okay. Don, and it's Don Scott for the record. You had raised an objection as inconsistent with 5.1 and 5.2. Was the plan that was approved previously inconsistent with 5.1 and 5.2? The special treatment development permit that was already issued? MR. SCOTT: On the previous one? COMMISSIONER STRAIN: Right. MR. SCOTT: Yes, it was. COMMISSIONER STRAIN: Well, I'm asking if it was inconsistent. How did it get approved if it was inconsistent? Page 54 September 15, 2005 MR. SCOTT: Oh, yeah, that was prior. Sorry. I'm thinking of the other development in there, too. That was previous to our problems. COMMISSIONER STRAIN: Okay. Now, when a project is approved, from what I understand of checkbook concurrency, aren't you supposed to allocate its density on the books at that time? MR. SCOTT: Not if it's -- well, first of all, the rule now is different than the rule at that time. So we didn't have a book at that time. COMMISSIONER STRAIN: In 2002? MR. SCOTT: Yeah, we didn't have a book at that time. COMMISSIONER STRAIN: Okay. Then that moots that question. I was just trying to understand how if it was willing to work at a higher traffic count before, why it wouldn't work at a lower traffic count today. MR. SCOTT: I see where you're going. COMMISSIONER STRAIN: The timing of the six laning portion of 951 from US 41 north, when is that due to be started? MR. SCOTT: It's programmed in 2006. COMMISSIONER STRAIN: The start? MR. SCOTT: Yeah. COMMISSIONER STRAIN: How long will it take? MR. SCOTT: At least two years, maybe two-and-a-half. So 2008 to 2009. COMMISSIONER STRAIN: You know where I'm heading, Richard. The current status of the intersection, I believe there's a little bit of concurrency left, if I'm not mistaken, but they're going to make improvements south of US 41. MR. SCOTT: Right. COMMISSIONER STRAIN: When that hits -- and this is from what I remember in the paper -- there's a couple hundred thousand trips maybe that may be left over for other projects. Page 55 September 15, 2005 MR. SCOTT: You mean a couple hundred trips? COMMISSIONER STRAIN: Couple hundred, yes, I'm sorry. If that were the case, this project could then fit into that period of time? MR. SCOTT: Possibly. COMMISSIONER STRAIN: Could it fit into today's period of time? MR. SCOTT: If it was done today? COMMISSIONER STRAIN: Yeah, if they came in tomorrow for an STP, could they get it? MR. SCOTT: No. COMMISSIONER STRAIN: If they came in when the six laning south of 41 to Manatee Road was completed, could they get it? MR. SCOTT: No, because of41. COMMISSIONER STRAIN: Okay. So they really are locked out until 41 is improved. That's east of 951? MR. SCOTT: That's why talking about the big picture improvement is why we're talking about that. COMMISSIONER STRAIN: Okay. Because if you're going to have some excess capacity when the improvements are made south of 41 for that intersection, which is what I thought I read in the paper, then I wouldn't see why -- I was thinking they were going to try to qualify for that. MR. SCOTT: To Reed's defense, he wrote it at the time we didn't have the problem on 41 now or, it was foreseeable, but -- COMMISSIONER STRAIN : Well, their traffic impact statement indicated a completion date of 2006. When do you think, based on your best guess of the traffic concurrency in that area, this proj ect could get permitted? MR SCOTT: See, it all depends on the consortium and everything we're talking about here, and approval by FDOT. COMMISSIONER STRAIN: The consortium that they're talking about wouldn't have effect until it was funded, designed, permitted Page 56 September 15,2005 and built. We're talking years down the road. MR. SCOTT: No, it will because it's either going to bring money to the table that moves phases forward to get it designed, built, or it doesn't, and everybody waits. I mean, the big picture is an overpass at 41 and 951, or fly over. Whatever it turns out to be and widening 41. The two of those together maybe a hundred million, depending on how far you go on 41. It's a state road. It's a state project right now with a PD&E study. If we had to wait for State and Federal funding, which is fine. We're going to -- we advance PD&E, we'll advance design because design is not that big of a, you know, a bite. When it gets to right of way and construction, if we waited for State and Federal funding, we're talking 15 years. That's not acceptable to anybody. That's why even if it -- if they weren't talking about doing something, we'd have to go find them anyway if we wanted to move the project up. So, based on schedule right now, four or five years, you know, just depends. COMMISSIONER STRAIN: That's what I thought. That's the only questions I had of you, Don. Are there any other questions of Don? Commissioner Schiffer? MR. SCHIFFER: Don, is there -- will there be any need for right of way on this property to do any of those improvements? MR. SCOTT: Well, and that's -- I don't think so, but the one side of it when you talk about -- I was looking at the previous language in there, fair share pavement. Pavement doesn't always have to be pavement. It might be stormwater. Might be right of way if you did need 12 feet or whatever. That's kind of the way we're trying to look at everybody up and down the corridor. It doesn't always have to be monetary. It could be in-kind services too. MR. SCHIFFER: Is it something you'd like to condition this application on? MR. SCOTT: I had no problem the way Lindy was going with stipulation of fair share above. And the fair share can always be Page 57 September 15,2005 monetary, or it can be something else. COMMISSIONER SCHIFFER: Okay. Thank you. COMMISSIONER STRAIN: Okay. With that I guess we'll -- thank you, Don. I guess we'll ask for the staffs report. MS. DESELEM. Good morning. For the record, my name is Kay Deselem and I'm a principal planner with Zoning & Land Development Review. You have the staff report in front of you, I assume. It was sent to you. And I'll just cut to the growth management portion of that staff report because the other reiterates what the petitioner has already discussed with you as far as the proposed uses and the location. This particular parcel is in an urban commercial mixed use activity center subdistrict and staff has reviewed it for consistency with the comprehensive plan noting particularly the factors surrounding the note about the smart growth policies. All new and existing development shall be encouraged to connect local streets, and noting that this particular project does not show an interconnection to Falling Waters, however, it does show a connection to the end development track along 41. The proj ect will also provide the code required buffers to separate it from the residential uses within Falling Waters. And as has already been discussed, staff has noted and the petitioner has also addressed the fact of the design of the parcel and where the parking lot is going to be, where the trash dumpsters are proposed in the loading area. Staff believes that's an appropriate way to design the project to be most compatible with the nearby residential uses. The staff report goes on to address the environmental element, and environmental review staff has reviewed this petition. And at the last minute, so to speak, the petitioner has been aware, but since your packet went out to you, we have discussed a new condition that had been added. It's condition number seven, and that addresses the buffering plan that was proposed and approved as just part of the ST permit. And we have added a condition to that as was alluded to by Page 58 September 15, 2005 Mr. Y ovanovich. And the transportation element is discussed, and this is some of what has been discussed already, as far as the growth management consistency finding. And, yes, the particular proposal as proposed at this time, would not be consistent with the Growth Management Plan, however, staff has reviewed it as an overall recommendation of Growth Management Plan consistency noting that the growth management allows for mitigating factors, thus allowing for, not really an overturn of the transportation element, but allows for it to be found consistent because of the mitigating factor. In this case, as in previous cases, I would note Regal Acres PUD timing as in the extension of time and the notation that they cannot go forward until such time as currency capacity exists, has been detennined to be an acceptable mitigating factor. The staff has recommended approval based on a recommendation of consistency with the growth management plan because of that timing element. And that's noted in the GMP conclusion. We have made a change in that condition, which is condition six as noted by Mr. Y ovanovich that takes off any reference to phasing because this proj ect is not currently designed to be a phase proj ect. It's one standalone, one-story building. To further address the issues that we talked about in a timely fashion, we have condition number three that reiterates the fact that this particular developer, as Mr. Y ovanovich noted, is on record to know that his conditional use is only good for the time period allowed pursuant to the LDC. And if for some reason he does not get that capacity available to him, he can either seek, you know, whatever remedies are available, as far as an extension, or what other remedies might be available, but he does know that and he understands that risk. The conditions that staff is recommending for approval can be discussed briefly, and I will tell you that condition number one identifies the extent of the use that's allowed. And this is again in reference to the fact that conditional use is required for anything above Page 59 September 15, 2005 5,000 square foot. And yes, there was somewhat of a glitch in the adoption of the new Land Development Code because portions of that were left out and the staff report, I believe on top of page two references the fact that it was in one section of the LDC and is proposed to be placed into table two of the new LDC in section 2.0403 where the conditional uses are discussed. I don't believe it's going to be in this cycle, the 2a, but it's coming up in a future cycle and that will be corrected. So, we are identifying in condition a, the maximum 17,500 square feet in a one, one-story building. And we have noted that it's limited to what's shown on the site plan. And condition number two talks, as I did, about the parking area dumpster delivery areas, to note that they have to be shown, and remain as shown on that plan because that's how they best meet compatibility standards. And as noted, condition number three talks about the expiration of the conditional use. Condition number four notes the parking areas must be provide in compliance with that plan, however, it still has to be in compliance with the LDC of parking requirements. It's not to be implied that any variance or any deviation would be granted from that requirement. And number five addresses the fact that that is a conditional site plan, or a conceptual site plan. They still are required to go through whatever approvals are necessary pursuant to the Land Development Code. F or example, site development plan approval. Number six is the roadway capacity condition that makes this particular proj ect consistent with the Growth Management Plan. And condition number seven, is the condition that was added dealing with enhanced buffering to compensate for the impacts to the ST forested lands that are lost through development of the parcel. And if you have any questions, I'd be happy to address them. COMMISSIONER STRAIN: Mr. Abernathy first. COMMISSIONER ABERNATHY: Kay, I noticed that you Page 60 September 15,2005 stopped short of suggesting any further interconnectivity of this project with it's neighbors. I think you were at a training session we had with a video that said that forcing interconnectivity on a developer can amount to a taking. There's a Supreme Court case I think that said that. So are you staying away from it because of that, or just for some other reason? MS. DESELEM I didn't necessarily stay away from it particularly. I was just noting what the site plan showed and noting that the area around it is already developed. COMMISSIONER ABERNATHY: But in one direction you said there wasn't an interconnectivity. MS. DESELEM: Right. And that's basically because of the design of the existing project in Falling Waters doesn't seem to accommodate it. COMMISSIONER ABERNATHY: Too late to do that if you wanted to. MS. DESELEM: Basically, yes. If Falling Waters had allowed an interconnection to this site, then they could connect. But the way the buildings are situated in Falling Waters, it doesn't appear as though any kind of an inter-connect could be accommodated. COMMISSIONER ABERNATHY:: Are your planners all aware of this line of cases? It says that forcing an interconnect could amount to a taking? MS. DESELEM I can't speak for the other planners. COMMISSIONER ABERNATHY:: Are you aware? I thought you were there. MS. DESELEM: I don't recall that particular discussion. MS. STUDENT-STIRLING: Mr. Abernathy -- for the record, Marjorie Student-Stirling, Assistant County Attorney. For the taking in Federal cases to occur, there has to be a deprivation of all beneficial use. I can't see how an interconnection deprives someone of all beneficial use of their property. I'll be happy to see if there's any such Page 61 September 15,2005 case for you, but I'm not aware of one at this moment. COMMISSIONER ABERNATHY: Well, the training we were provided said it very clearly, as I recall. COMMISSIONER STRAIN: Mr. Schiffer or Mr. Murray. COMMISSIONER SCHIFFER: Kay, one thing, in the old site plan there was a pedestrian connection to Falling Waters. Is that something we want to abandon? MS. DESELEM: I believe there is a pedestrian sidewalk shown on this particular parcel. And if not, they would be required to comply with the LDC requirements in the LDC. That's one of the reasons why we note that this site plan is conceptual. And if in fact they don't show something that's required, they are, but I do believe this one does show a sidewalk along 41 and 951. COMMISSIONER SCHIFFER: What I mean is, if you look at the old -- if you look at the old exhibit, the old site plan, there is an actual pedestrian connection back on the northeast corner of the site. I mean, was that dropped on purpose or is that -- MS. DESELEM: I must admit, I didn't catch that. I don't know. I don't know what the intent was and I didn't notice that it wasn't there. COMMISSIONER SCHIFFER: I mean, it would really be Falling Waters that would want it. And it would keep their cars out of the street. The other thing in that exhibit, which is now number five, is there anything in that whatever caused this where the building has to be brought forward on the property line? MS. DESELEM: I'm sorry. I missed what you were referencing. COMMISSIONER SCHIFFER: Condition number five states that this is just a conceptual site plan. That everything is going to have to meet code so things can change. Is there any way that that can be interpreted to bring the building forward from this approval today? MS. DESELEM: Personally no, not that I'm aware of. Page 62 September 15, 2005 COMMISSIONER SCHIFFER: Okay. Thank you. COMMISSIONER STRAIN: Mr. Murray. COMMISSIONER MURRAY: Another transportation question, but it's real quick. Do I understand that if this were to be approved today, that the trips would be then reserved for this company and that others who might have come forward, they'll be denied those trips? MR. SCOTT: No, they won't be reserved. COMMISSIONER MURRAY: They will not be reserved. MR. SCOTT: No, we're not -- they don't -- I mean, we're not even at site planning, so -- COMMISSIONER MURRAY: Well, I just want to make it clear for myself as well as the record this would not entitle them to a space or an allocation of trips. So, that's a good thing in my mind. Thank you. COMMISSIONER STRAIN: Any other questions of staff? (No response.) COMMISSIONER STRAIN: Hearing none, Ray, is there any public speakers? MR. BELLOWS: Yes, we have one registered speaker. Mario Curiale. MR. CURIALE: Good morning. COMMISSIONER STRAIN: Good morning. MR. CURIALE: My name is Mario Curiale and I live -- you need my address? COMMISSIONER STRAIN: No. MR. CURIALE: No. Okay. I'm here to speak on this application somewhat. I have no problem with the project at all. The only problem I'm having is that, I would like to see that whatever guideline that I have to abide by, I would like to make sure that they will be imposed also on this project. One of the guidelines that came up to me was that we -- I have to continue the wall all the way up to Page 63 September 15,2005 my property line to be an 8- foot wall, masonry wall, and 10 feet tall for the property line. And I would like to see that they continue the same wall. And also the setback ruling that I have that does not meet this building here. And so happen that we don't have anybody from Falling Waters here. And these people, when I had my application in here, the whole room was full. So, I don't know what happened. Maybe they all vanished or they were in Louisiana. I don't know what happened. But, again, I have no problem with the proj ect and if guidelines will meet the same as mine, I have no problem with that. If you have any questions, I'll be glad to answer that. COMMISSIONER STRAIN: I was here when you brought your project forward, and there were quite a few differences between your proj ect and the flexibility they were going to provide versus the flexibility that an ST pennit provides. This is an St pennit. It's very specific. And that may be why there are differences between this project's layout and the way it was applying, and the fact that it came in way before you, versus what you were proposing. What they're proposing here today is not a lot different than what was proposed here when it was first approved in 2002, with the exception it has a reduction in traffic. They are going to maintain the buffers that were originally agreed to in the ST pennit. So it's a different kind of process than what you were attempting to do. MR. CURIALE: Okay. My main concern was, if you remember, they were concerned about the height of the building, how close the building, this and that. So I want to make sure that we don't, since there's nobody here, you know, I try bring that up. Again, I'm in favor of the project and I hope everything goes well with that. COMMISSIONER STRAIN: I just wanted to make sure you understood there were some differences between the way we look at these projects because of the way you presented yours. MR. CURIALE: Oh, no, I agree with you. I know that. Page 64 September 15,2005 COMMISSIONER STRAIN: Thank you, sir. Are there any other public speakers, Ray? MR. BELLOWS: No others. COMMISSIONER STRAIN: Before we close the public hearing, I have a couple of questions of Kay, and then I want to ask -- it might shorten our discussion so I'd like to run them by the applicant and the staff real quick before we get into discussion. Kay, on condition number five, you said approval of this conditional use shall not be construed as approved the attached conceptual site plan. The site plan shall be firmly reviewed and approved as part of the site development plan process. It's my understanding in reading the LDC that it has to go through a special treatment development permit as well as process. That the conditional use allows the staff to administratively review it for a special treatment development permit. Am I right or wrong on that? MS. DESELEM: I believe -- for the record again, Kay Deselem. I'm not exactly certain but it's my understanding that that would be handled through the SDP process. COMMISSIONER STRAIN: Okay. Well, there is a special application for an ST area. Even though this area was changed in 2002, the ST designation never got lifted off the property. And the entire property is, by staffs comments and their executive summary from 2002, is under the ST criteria. I just wanted to make sure that by stating they would be going through SDP process, it doesn't circumvent the ST process. MS. DESELEM: My understanding in speaking with Steve Linberger, who is the environmental specialist, there is a process for them to administratively go through and address the original ST development permit. COMMISSIONER STRAIN: That's what I'm looking for. MS. DESELEM: Yes. COMMISSIONER STRAIN: So that's still going to go in Page 65 September 15,2005 addition -- or it could be concurrent with the site development plan, and may even be similar to the site development plan, but it is another process. MS. DESELEM: Right. That it wouldn't be the public hearing portion of the ST permit. I guess I misunderstood your question. COMMISSIONER STRAIN: I agree with you. That's what the conditional use today accomplishes. MS. DESELEM: Yes. COMMISSIONER STRAIN: The next one is number seven. It might read better if it said the developer shall provide enhanced buffering. And than drop the words all the way from on to the word area so that it says in accordance with the landscaping plan approved by resolution 0244, landscaping relocated due to this conditional use would be relocated within the site to the same quantities on the original plan. Is that -- see, because you're referring to just the east side property around the existing preserve as proposed water management area. I have read the transcripts from these meetings involving the BCC, because it went to the BCC three times, and those transcripts are very clear. They were very concerned about the amount of landscaping and the roadway buffers as well. So I want to make sure we don't eliminate any requirement that was back then that mayor may not be in place today. But I want to make sure when the final inspection is done in this property, it is in place. MS. DESELEM: Yes. I would just ask that perhaps you include something to inquire a new buffering plan that's subject to review and approval by the staff because, as I recall that building was located in a far different manner and a different place with parking behind it. So, we'll need to come to some agreement between staff and the applicant as to what's being replaced where. COMMISSIONER STRAIN: I agree with you. I have no problem with that. I just want to make sure this plan that I see as Page 66 September 15, 2005 Exhibit B has a huge amount of buffering along the right of ways. I'm not sure driving by that every day that that material is there. But I do know that when this is finally inspected for this new building, the entire site will looked at and hopefully the inspector will have this exhibit with them and they can verify that this exhibit and the submitted documents match up. So that's where my -- MS. DESELEM: Yeah, I think that's an appropriate condition. I have no problem with it. I just ask when you make your motion, to specify exactly so we can get it down and know what we're putting into the conditions. COMMISSIONER STRAIN: Got you. And then the rest I have a couple questions of Richard. Hi, Rich. You've got no problem with stipulating that a wall is going to be added along the residential buffer? MR. YOV ANOVICH: Correct. COMMISSIONER STRAIN: Do you have any problem stipulating that the COs for this building will be held off until the end of 2008? MR. YOV ANOVICH: Sure do. I do have a problem. COMMISSIONER STRAIN: Okay. Well, let me finish the rest of these and then we can discuss that a little more. You have any problem with the applicant will provide it's proportionate share of any fair share agreement that will come out of the private sector in regards to this capacity problem in this area? MR. YOV ANOVICH: I don't have a problem with the concept of what you just discussed. That will be part of the discussions and come up and be part of the solution. COMMISSIONER STRAIN: Okay. And that -- MR. YOV ANOVICH: Let me -- COMMISSIONER STRAIN: Those are the three. MR. YOV ANOVICH: The reason I say that, Mr. Strain, you're talking probably about 10 to 15 different property owners. And some Page 67 September 15,2005 of them may be so small that the global solution is easier to deal with less people and people understanding that some people may get a free ride. And that may be the decision that the overall consortium says. It's almost impossible to get 15 people to agree, but you might be able to get five to agree to fund 100 percent of the improvements, understanding that some people might get a free ride. COMMISSIONER STRAIN: But the only part is your applicant volunteered that. MR. YOV ANOVICH: We'll be part of the process. COMMISSIONER MURRAY: Mark. Bob Murray. There was a point Mr. Curiale indicated that there was an 8-foot wall that he was to be required to build. Is there a consistency issue that we want to have included? COMMISSIONER STRAIN: No, because, as I was explaining that project, what Mr. Curiale was coming forward with was a straight C3 zoning. While he intended to do certain things on that project, if anybody wanted to, they could put everything they wanted there. There are different conditions. Weare actually looking at a tighter plan now with more definitiveness than his project would have proposed. COMMISSIONER MURRAY: Thank you. COMMISSIONER STRAIN: And Richard, back to this date. What do you have as a problem with the date since it looks like transportation said you can't get in any sooner anyway? MR. YOV ANOVICH: Well, that's not true. Under the concurrent -- we have no problem with being subject to the concurrency management system, whatever it may be at that time, as we understand it today. As you know, if the improvements are in the first two years of the capital improvement plan, it's treated as if the improvements are there. So you get to go forward. Your COs are not tied to the completion of the project. We understand -- right now I've got, we've got zoning on the Page 68 September 15,2005 property and a use on the property. We have Office Depot that we're bringing forward to you. We have a lease with Office Depot. At a certain period of time if we don't deliver the store, Office Depot will be gone. And we understand there may be some repercussions to us, but we cannot agree to the 2008 date because we will lose Office Depot if we have to agree to that date. We understand there's some risk and we're going to have to come forward with the fix. And that fix is going to have to open up concurrency for us to go forward and we're going to be working hard to get that done. We're willing to take that risk with Office Depot to hopefully get that done. We're not willing to take that -- we can't go to 2008 because we know we'll lose Office Depot, and then we have to keep what we have, which I don't think anybody thinks that's the best situation. COMMISSIONER STRAIN: The 2008 date was pegged around the six laning of 951 's completion. It had nothing to do with the east side of 41, south of 41 or the fly over. And I did that on purpose. I think those are much further off in the future. My concern in all this is, if you all come forward with some plan that transportation likes, that they will probably say, you know, if you come in with this plan and you provide the funding for it, we'll let you have concurrency immediately while that plan is in design and under construction. That doesn't fix the problem. MR. YOV ANOVICH: I don't -- I think what will happen, if there's a plan that we work with staff on, what's going to happen is, staff is going to go back and they're going to have to amend the CIP to show improvements funded to start construction, not design, within the first two years of that plan, whenever we get to that point. And you're probably right, the people who are going to fund that are going to want to be subject to concurrency not to completion of the road. Because why would you -- and keep in mind, as you know, just because you get zoning for -- I'll pick a number -- 700 units, you're not going to put all 700 units on the road that day. But if Page 69 September 15, 2005 you're going to fund the amount of improvements that Don is talking about, you're going to expect to start getting some cash in the door to help fund those improvements. So we're going to probably talk about having to work with the concurrency management system for this consortium to work. Otherwise, you know, there's going to be a problem at that intersection without further development. Development can help bring the solution quicker. COMMISSIONER STRAIN: So what date were you thinking you were going to have this project completed? MR. YOV ANOVICH: I have no idea. I know it's open ended. We're willing to take the risk of whatever the consortium comes up with and works out with staff. We know if we agree to your condition that we don't have an Office Depot. If we wait until 2008, we know we don't have that so there's no reason for us to participate in the consortium or even request the change in the use to reduce the actual transportation impacts. So we'd like to be subject to concurrency. COMMISSIONER STRAIN: Understand. It makes sense Makes sense. Thank you. That's all the questions I have of Richard. And if there's no other discussion, I'll close the public hearing and enter for motion. COMMISSIONER ADELSTEIN: I move that AR-7586 be forwarded to the Board of County Commissioners for the recommendation of approval subj ect to staff recommendations and the recommendations of Collier County Planning Commission. COMMISSIONER STRAIN: Is there a second? COMMISSIONER SCHIFFER: Second. COMMISSIONER ABERNATHY: Yeah, I'll second that. COMMISSIONER STRAIN: Seconded -- well, Mr. Schiffer got there first. COMMISSIONER ABERNATHY:: That's fine. COMMISSIONER STRAIN: Discussion? COMMISSIONER MURRAY: Yes. Page 70 September 15,2005 COMMISSIONER STRAIN: Mr. Murray. COMMISSIONER MURRAY: If I may. I think activity centers were intended to be places of intensity where opportunities for multiple services and products were to be available. I find it difficult, 17,500 square feet of space allocated to a super store only, and putting it in reservation basically, is troubling to me. And I find that there's so many open ends on this, it's distressing. That's my point. COMMISSIONER STRAIN: Mr. Schiffer, I think you had a comment. COMMISSIONER SCHIFFER: Would the conditions you had, would they be implemented in our motion? COMMISSIONER STRAIN: I'm going to read them. COMMISSIONER SCHIFFER: I'd like to add one more condition and that's that we do change the word building to development area on the conditional use conceptual site plan. COMMISSIONER ABERNATHY: Good, good. COMMISSIONER SCHIFFER: I don't think we want to mistakenly give approval for a 110,000 square foot building. COMMISSIONER STRAIN: Okay. That's a good point. Before I provide my stipulations, are there any other questions, otherwise I'll read them and you all can -- first of all, there is a suggestion of a correction of some language to number seven of the staff. I think that ought to be implemented along with one more sentence that says, a new buffer plan will be submitted with the permit process for review to make sure that it's consistent with the intent of Exhibit B of the original recommendation. That the word building as Brad had just said is changed in a development on the plan to indicate it's development area that's seeking the conditional use. That the wall will be added along the residential area along the north at six feet. That the owner will participate in the proportionate share agreement, if one does materialize, involving the improvements to thata Page 71 September 15,2005 intersection. And that from my point of view, I find that this is, that consistency to the GNP for this project would be met by mitigating factors, including the least of which is that there's a significant reduction in the traffic impacts using this proj ect as proposed versus what was proposed. That's the stipulations that I would add. Ms. Caron? MS. CARON: Did you say ST permit review? COMMISSIONER STRAIN: Well, the staff has indicated that's going to be a part of the ST process, so I'm willing to accept that. COMMISSIONER ADELSTEIN: I will accept that in the motion. COMMISSIONER STRAIN: Okay. The motion maker accepts it. Does the second accept it? COMMISSIONER SCHIFFER: Yes, he does. COMMISSIONER STRAIN: The second accepts it. COMMISSIONER SCHIFFER: Mark, just one other thing to discuss. Do we want to put the connection which was on the original thing, which is a pedestrian connection to Falling Waters or it's -- COMMISSIONER STRAIN: You know when you saw that, I did see the walkway up front. I think that's sufficient because coming from the back side of a building into a development, break-ins and stuff is not probably a good thing to encourage and that could happen that way. MR. BELLOWS: For the record, Ray Bellows. I think the difference is, when that was a restaurant site it probably made more sense and now it's an Office Depot. COMMISSIONER STRAIN: Right. COMMISSIONER MURRAY: And it is coming into the back of the building, so I agree. COMMISSIONER STRAIN: Okay. There's a motion on the floor. It's been stipulated and seconded. All those in favor signify by saYIng aye. Page 72 September 15,2005 COMMISSIONER STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY:: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anybody opposed? COMMISSIONER MURRAY: Aye. COMMISSIONER STRAIN: One in opposition. Commissioner Murray is in opposition. MR. YOV ANOVICH: Thank you for your time. COMMISSIONER STRAIN: That you, Richard. Now that ends our meeting portion on the petitions here today. And we have one other item on the agenda and LDC -- a continuation of the LDC special cycle 2A for 2005 that began on September 1st, '05. It's one portion, if I am not mistaken, Margie, of that hearing. COMMISSIONER SCHIFFER: One thing, before we throw it away, do we have to fill out -- COMMISSIONER STRAIN: Yes. Fill out our issues and give them to Mr. Adelstein. Margie, the only portion to finish up today, if I'm not mistaken, is LDC 1 0; 124, is that correct? MS. STUDENT-STIRLING: Yes. It's what is commonly referred to as the phantom units, ordinance and also the requirement for the buildout date. COMMISSIONER STRAIN: Okay. Thank you. Let me change books and then I'll be right with you. Okay. Margie, there's an issue with DSAC on this matter. Could you explain to us what's going on with DSAC? MS. STUDENT-STIRLING: Yes. I am going to have Ms. Fabacher explain that. Ms. Fabacher is a staff liaison and was present Page 73 September 15, 2005 at the DSAC meeting yesterday. I had a conflict with another meeting and was not present, however there was coverage by our office there, and Mr. White was there because of the conflict. But I would like Ms. Fabacher to put that on the record since she was actually present. MS. F ABACHER: For the record, Catherine Fabacher with Zoning & Land Development Review. Last month when DSAC met, they were concerned about some mandatory aspects of the provisions, and they asked for it to come back this month at last night's meeting, this amendment, and unfortunately, it did not get on the agenda. The regular cycle amendments got brought back and reheard, but we failed to get this one back and have it reheard by DSAC last night, so -- they've heard it once, but they haven't voted. COMMISSIONER STRAIN: Margie, what's the normal process? Don't we normally seek DSAC? This is probably a significant development impact. MS. STUDENT-STIRLING: I think it is, and we do normally, you know, seek DSAC's review and approval of land code amendments. COMMISSIONER STRAIN: I know that BCC postponed this Tuesday to accommodate our hearing of it today, and they're suppose to rehear it next week. And I certainly don't want to upset the BCC by keeping delaying this, but I honestly don't know if it's a proper venue to go forward without DSAC. What is the feeling of this board? And, Margie -- MS. STUDENT-STIRLING: I just want to offer this. And I don't know if, without benefit of DSAC, if the BCC would want to hear it either. I'm not sure what their desire would be. COMMISSIONER STRAIN: This is more on the line of DSAC's concerns on an issue like this and some of the other stuff that we normally hear. I think their input is important. Do we have a consensus on the panel of what they'd like to see happen? COMMISSIONER STRAIN: Mr. Schiffer? Page 74 September 15, 2005 COMMISSIONER SCHIFFER: Could we review this now. I mean, we keep bringing it up and never seeing it. I wouldn't mind if we went over some of our stuff. I mean, we could wait and vote until after DSAC, but -- COMMISSIONER STRAIN: Well, I-- COMMISSIONER SCHIFFER: There are some bugs I'd like to tweak out. Might even help DSAC. COMMISSIONER STRAIN: Okay. Is that the consensus of the panel? COMMISSIONER VIGLIOTTI: I'm okay with that. COMMISSIONER STRAIN: Okay. Well, let's just move forward then. Catherine, or Margie, who is making the presentation on this today? MS. STUDENT-STIRLING: Well, I had made the presentation before and then I made some changes that I'm going to mention to the ordinance, and I'm also going to ask Ray. There was an issue about guesthouses. And, Ray, if you put on the record that guest houses are considered accessory and wouldn't be -- I appreciate that. MR. BELLOWS: I think you just did, but I agree, the guesthouses aren't the dwelling units that count for -- COMMISSIONER STRAIN: Okay. MS. STUDENT-STIRLING: And the first change is on paragraph 8B, just to state that it applies to all residential PUD zoning district, or all PUD zoning districts with a residential component. That last part was left out. Also, wherever you find expiration date, buildout date was substituted. And if you recall, there was a comment by a Ms. Sellers who represented some developers and she was from a Tallahassee firm that referenced the termination date wasn't referenced for DRIs. I had that on my list to include anyway, but that's now included under paragraph D. I also tried to, under the exemptions, add some additional language. Also under that paragraph, the second to the last paragraph, which excess units had been retained by master Page 75 September 15,2005 property owners association, developer or like entity pursuant to restrictive covenants. Other reservations of units to the developer or like documentation recorded in the official records of Collier County Florida. I tried to broaden that to accommodate some of the scenarios that were presented by the speakers. Also in paragraph F, the proj ect turnover of the final phase didn't say final phase before, and that was brought up by one of the speakers. And then lastly, on the last page, two items. First under paragraph G7, that we would not have the signage requirement posting on the signage requirement. And lastly the effect of the moratorium on the build out date. I had added or any other official action of the county that would otherwise limit a developer's ability to proceed with development of the project for a given time period. And then also in the last sentence, that language was also included to broaden that. And I know there was some discussion about Burt Harris, and I've looked at the Burt Harris law again, and again for the phantom units. This happens after turnover and the developer is out of the game. And I would submit that when a person buys a home or a condominium, they have no reasonable investment backed expectation, that somebody, it would be very remote, that someone might come in some day and buy them out to, you know, do a new development. I think that's pretty remote. And there's also a time period in Burt Harris, I believe five years from when the ordinance was adopted after which you can't bring a challenge. So it wouldn't necessarily be this ordinance. It would be the ordinance that would remove the excess units. So I think a Burt Harris issue is pretty remote the way it's worded. COMMISSIONER STRAIN: Okay. I'm sure there's going to be some discussion. Do you have, Mr. Adelstein, do you want to start? COMMISSIONER ADELSTEIN: I have, number one, if I understand this correctly, we're talking about the fact that I have a right when I put this together, and now you're saying to me even Page 76 September 15,2005 though I have one issue, one unit left or two units left, whatever it IS, and I have no property, I still own that right? MS. STUDENT-STIRLING: Who owns the right? COMMISSIONER ADELSTEIN: Okay. I have the right now. I still own it. MS. STUDENT-STIRLING: As a developer? COMMISSIONER ADELSTEIN: By what legal standard, by what legal choice are you actually saying that you have a right to take it away from me? MS. STUDENT-STIRLING: Who is the owner, the condo unit owner or the developer? COMMISSIONER ADELSTEIN: The developer who has all the rights to build. MS. STUDENT-STIRLING: This does not apply to a situation where developers still have some rights to build left. This applies to the situation where it has been turned over to the property owners' association and the developer is out of the game. If one exemption is written so if the developer is still in the game, they're exempt from this. That's the intent of it. COMMISSIONER ADELSTEIN: I guess if I have the right to build two more units, even though there's no land to build them, I now turn it over. I still have those rights. MS. STUDENT -STIRLING: The developer doesn't own the property anymore. COMMISSIONER ADELSTEIN: We're not talking about owning the property, we're talking about the rights to own the -- to build on that property. MS. STUDENT-STIRLING: Under what authority would the developer retain the right? I don't understand the question because -- I don't understand how the developer would retain the right if he doesn't own the dirt anymore, or he doesn't retain it in a restrictive covenant or some other type of document. I don't understand how he's Page 77 September 15,2005 still in the game. COMMISSIONER ADELSTEIN: Ifhe has a document like that, then you say you couldn't take it away from him? MS. STUDENT -STIRLING: That's correct. That's what the exception is intended to do and I'd try to make it broad, you know, broad. The developer is still in the game and has any interest in the, then it's exempt. So it's only after it's turned over -- I can just -- this is a little different, but I have a problem personally with the person that developed Wyonne Property, and I happen to see that person and talk to them about it and he says it's been turned over to the homeowners' association. I'm out of the game so you don't have any problem with me anymore. And that was, you know -- so, it would be when a developer is out of -- entirely out of it. COMMISSIONER STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And, Margie, doesn't the zoning run with the land? MS. STUDENT-STIRLING: Yes, zoning runs with the land. COMMISSIONER SCHIFFER: So in an issue where we have standardized zoning like an RSF 12, I mean, the rights of that land stays the same? Nothing ever changes. A person could build less than that? MS. STUDENT-STIRLING: Yes, they could build less than that. COMMISSIONER SCHIFFER: They could tear it down? MS. STUDENT -STIRLING: We did make some adjustments to our conventional zoning district. As I recall, however, when we did the comp plan and went through zoning reevaluation and our work caps and certain properties and certain conventional zoning districts placed on number of units, when we went through zoning reevaluation COMMISSIONER SCHIFFER: But in the conventional zone, even though the site is built for less, the person could tear it down and Page 78 September 15, 2005 build what's allowed by the zoning? MS. STUDENT-STIRLING: That's right. COMMISSIONER SCHIFFER: So, therefore, that PUD also runs with the land. So I think even in your example, even though the developer has finished, and he really never had the rights, the land had the rights. When we give a PUD at this hearing, we're really giving the land. We're never giving a human being those rights, I don't think. MS. STUDENT-STIRLING: I think the distinction between a PUD and a conventional zoning district, however, is a conventional zoning district is something that the county puts on a map, and the county expects to have development impacts from what they put on the map. The PUD is distinguishable in as much as the property owner comes in and asks for that. So I think there's a distinction between the two. COMMISSIONER SCHIFFER: But once it's done, the PUD is the zoning classification -- MS. STUDENT-STIRLING: That's correct. COMMISSIONER SCHIFFER: -- and it runs with the land. MS. STUDENT-STIRLING: That's correct. COMMISSIONER ADELSTEIN: Do you remember -- I don't think you were on the board then, but we had a situation where 800 units were going to be given to us to be set aside. COMMISSIONER SCHIFFER: I was on the board, and they retained another 800. COMMISSIONER ADELSTEIN: Again, this is a value and take that value from them. What they were using was to try to get waterside improvements, which had nothing to do with this area. MS. STUDENT-STIRLING: Waterside would be except from this because of the way it's set up. This is a policy decision for the board. I'm just telling you that this has been reviewed by our office. It's been reviewed by Carlton Fields and our outside counsel. We Page 79 September 15, 2005 don't feel that there are legal problems with it. It is a policy decision for this board to make. And our office is in the business of providing legal advice and not, you know, advocating for a particular policy. I was -- because of complexity of this type of ordinance, legal staff was involved in the writing of it. So, a policy decision is up to the board to make. COMMISSIONER SCHIFFER: And to say on that trail, let's say a developer got approval to build something for a density and built half that density. He's gone, the people buying the units essentially, because it's a zoning district, the remaining density still resides on the land. Obviously, we're trying to come up with something that would cure that. But as this town grows, it's going to be redeveloped. I mean, we can't assume that when a developer made the marketing decision to build half of that, that five years, ten years down the road it might be wise to build the other units back. So I'm wondering why this is a wise thing to do. Because we have conventional zoning where people underbuild all the time. I think the concern that it got mixed up into to the traffic analysis, you know, Liddy, when we talked last time, you kind of handled that differently. And I think that makes sense. But in the future these units may be used. The owner of them I believe are the people that own the land. MS. STUDENT-STIRLING: I don't believe that that's the case. I think they're just out there. And if -- I discussed this with the county attorney, and we don't believe simply because I own a home in a given development, that any units that aren't built are somehow parceled out to the people that own. They're just out there in case it's ever redeveloped. But I don't own a fraction of a unit that's not built. I mean, that's not in a deed or anything. Those units are just out there. COMMISSIONER SCHIFFER: But, Margie, you're going into a subdivision situation which is, you need-- MS. STUDENT-STIRLING: I'm also talking about a condominium association. Page 80 September 15, 2005 COMMISSIONER SCHIFFER: The owners of the condominium essentially as a group own the land. As a group would sell the land. And one of the assets of that land might be these additional units, so -- MS. STUDENT-STIRLING: That's possibly. You cannot sell a common element that can't be severed from the unit. When you sell a unit, the common part, whatever that is, goes with the unit. I have a condominium statute here. So in the event of redevelopment, that could occur. I'm saying from a legal perspective, I don't think there's a Burt Harris problem there because I don't believe that when you purchase a condominium, you have a reasonable investment expectation that some day a developer might come and be able to get all the owners in that condo association to agree, which in my experience with condo associations, it's hard to get all the owners to agree. But, if so, to then come and redevelop. And I think that's pretty remote. So from a legal perspective, I don't think that's a problem. COMMISSIONER SCHIFFER: Well, let me -- my experience as a condo owner in urban areas, it's not that remote. It's rather a healthy thing for units to do and sell out. So I don't think that's not going to happen where people aren't going to sell their condo to a developer. COMMISSIONER STRAIN: I think in Louisiana right now there's a lot of people anticipating building more density in places where there may have been less. And if that density was on their properties, they may have an advantage to it. MS. STUDENT-STIRLING: Again, this is a policy decision for you all to make. COMMISSIONER SCHIFFER: That's why we're discussing it. MS. STUDENT-STIRLING: I don't feel that there are any legal problems here. COMMISSIONER SCHIFFER: And my concern is, for Page 81 September 15,2005 example, let's take a guy who is building on a density of 12 units per acre and he only builds six units per acre. Isn't he doing the same thing? I mean, he's not fully utilized the land. So, essentially what we're talking about is people that don't fully utilize PUD zoning. COMMISSIONER STRAIN: That's like the project we just seen near MAC Builders. The people have RSF six zoning up behind them but they're living as estates homes. They don't fall into this category, from what I understand. So they would have the right to change their density, tear their house down and sell it to a developer for six or 12 units per acre but yet we're telling someone else who actually paid for the right where they wouldn't have had to pay for it. These people actually paid for it and did studies to prove it and now they're having it taken away from them. COMMISSIONER SCHIFFER: And isn't the inspiration for this move solely to free up the traffic? COMMISSIONER STRAIN: Well, that's where I was going to go next. If you take a look at the issues that are exempted from this, exempts vested, I imagine, PUDs through any development agreement or anything like that. If a developer simply does a restrictive covenant or other reservation of units to the developer entity, he's exempted. In the end, I'm just wondering what's left. Because the density that everybody seems to be concerned about is that huge density out there like we saw in Waterside Shops and all that, but none of that is corning under this because all the new proj ects corning in, we don't give them that kind of density, or if we do, we put catch-alls in there. So, I don't see the problem appearing today. One final note -- I want to get it all out before somebody interrupts me and I forget. We have an issue right now with the road system that is clogged. It's getting not that much better that quickly. By giving up this density so to let only more on, I'm not sure that little buffer that remains on the road system, by what little this would have an effect on, isn't a good thing just to leave.o Page 82 September 15,2005 COMMISSIONER SCHIFFER: I agree. COMMISSIONER CARON: And we want to spend almost a million dollars to do this? COMMISSIONER SCHIFFER: Like I said, no one is running around wondering where the cars are. The phantom cars are not a problem. COMMISSIONER STRAIN: I have a lot of -- MR. SCHMITT: $79,000. COMMISSIONER CARON: Sorry. Times 12. MR. SCHMITT: That's start-up costs. COMMISSIONER ADELSTEIN: That's not the full thing. A million dollars -- COMMISSIONER STRAIN: One at a time. COMMISSIONER CARON: And that's time 12. COMMISSIONER STRAIN: That's 12. So that is times 12? $79,000 times 12? COMMISSIONER SCHIFFER: What is this you're saying now? COMMISSIONER ABERNATHY:: It's a ball-park figure. COMMISSIONER VIGLIOTTI: Starting figure. COMMISSIONER STRAIN: This program on a community basis, which is there's 12 designated communities in the county, each designated community would run about $79,000 to handle this process, times 12 would be whatever it comes out to. COMMISSIONER CARON: Almost a million dollars. COMMISSIONER SCHIFFER: And again, can't transportation decide to remove these phantom units on their own? COMMISSIONER STRAIN: Well, that's what I was hoping Mr. Scott would like -- he's dying to address this issue. Mr. Adelstein would like to ask you a question, Mr. Scott. COMMISSIONER ADELSTEIN: I'd like to make a statement first. I don't see any reason why -- what we discussed at the last meeting go forward. Just the fact that we're doing it for the road Page 83 September 15, 2005 availability. And I don't see anything, or any availability. What I'd like to see is, this goes to the Planning Commission -- to your staff and you can use it on a computer basis to get done exactly how many units are still no longer being used having nothing to do with this bill. Whatever they're doing, let them do it, but yours has to be not an annual basis. You need this on a day-to-day basis if you can get it. And I would think that would be the way it should go. MR. SCOTT: There's many different ways we could do it from like we talked about before. I believe this will still go to the board because the board requested it. But that's the discussion we can have with the board from a policy standpoint. You can just say, let's spread, you know, phantom units over years, if we want to do it this way. Keep it in there for the buffer side of it. I mean, it's funny when you bring up the buffer side to it, we put presumptions of reserved and banked trips that are probably buffer too because they might not be that level in the future too. You know, that's probably a good thing in the end like you're mentioning because real trips are the problem right now, so -- COMMISSIONER SCHIFFER: Don, do you have any idea if these are removed what percentage are -- I mean, are we talking about the significant situation, or munitia in the traffic count? MR. SCOTT: It's not as significant as I think the original intent was to try to magically get rid of, you know, all units above. And, obviously, there's legal concerns with doing that, so -- it's trying to get to a real number of what really are you going to build and let's just get rid of the rest. It's not something that we can do so -- COMMISSIONER STRAIN: Well, I know-- MR. SCOTT: When you touch on it, if you look at the list of what I have in my concurrency system from the top, the DRIs are the big ones and things like that. That's the big -- COMMISSIONER SCHIFFER: And wouldn't the money be better spent on buying those remote traffic counters you want andt Page 84 September 15, 2005 stuff? MR. SCOTT: Weare doing that through PUD monitoring right now anyway, so -- COMMISSIONER STRAIN: Mr. Schmitt. MR. SCHMITT: The only way we'll ever go after a DRI is once the DO on the DRI expires and then we can go back after the PUD. COMMISSIONER STRAIN: But you can do that now, can't you? MR. SCHMITT: Not without this ordinance. I mean, we would -- let's say probably the next, or the closest sites would be the Vineyards. When that DO expires and they build out, eventually when the DO expires, it's no longer DRI, then we can go after the PUD and then take the excess units from that PUD. But that may result, right now from what I understand, maybe somewhere around 500 units. We'd have to do the same thing and wait for Lely to eventually expire. COMMISSIONER STRAIN: If their DO is expired and those units are sitting there, they can't use them either. So, I mean, basically it's just gross density sitting there that Don can take off the books, because if they want to use it, they got to come back in through the public process and reinstate their expiration date, which we can put all the criteria in the world we want on it at that point. MR. SCHMITT: Well, I don't think we can. I would have to defer to Margie because I don't think we can go in and take the authorized zoning from them that currently exists right now. They are authorized that zoning just like Lely, Fiddler's Creek, a lot of those DRIs that are out there right now. MS. STUDENT-STIRLING: What happened-- COMMISSIONER STRAIN: Margie, wait. Before they can use that zoning, if it's an expired DO, and they have the zoning, I agree with you, so how do they use the units if it's expired? MS. STUDENT-STIRLING: They don't. They don't use the Page 85 September 15, 2005 units unless they come back in. They can't get any development orders for them if they expire, but what they usually do is, they'll come back in and extend their expiration dates. The Vineyards is in for that right now. MR. SCHMITT: But essentially the last three areas of the Vineyards are already on the books and already planned and already committed. So ultimately they will end up with units that I would expect will be expired. COMMISSIONER STRAIN: But when they -- MR. SCHMITT: At the initiative of the developer. COMMISSIONER STRAIN: When they come in and get that request for expiration so they get whatever they get, do they come under the concurrency from there forward, or under the old concurrency of the DRI? MR. SCOTT: Would they still be considered vested? MR. SCHMITT: That is currently coming to this board so we probably best not argue that now because the DO will be coming to you eventually. COMMISSIONER STRAIN: Okay. So we want to ask the same question of legal staff then? I mean -- MR. SCHMITT: I don't know. MR. SCOTT: Or make a fictitious one up right now. COMMISSIONER STRAIN: Let's say some project is coming in some time in the future that has an expired DO and it's got some density left, they want to extend their DO and build out their project. Because the DO is expired during the renewal process, do they then come under the concurrency applications at the time of that renewal, or are they vested forever regardless of their expiration? MS. STUDENT-STIRLING: I think it depends on whether it's a substantial or insubstantial deviation, and if it's substantial, I think they might come in under new concurrency requirements. And that's based on declaratory statements I read from DCA a number of years Page 86 September 15, 2005 ago and my memory. COMMISSIONER STRAIN: Okay. Is there a percentage of the total volume of an approved DR! that becomes insubstantial or substantial? What's the trigger? Do you know? I believe it's 10 percent, but I'm not sure. MS. STUDENT-STIRLING: Not without doing research. COMMISSIONER STRAIN: It's ten percent on acreage. Ifit was -- even assuming it was 10 percent on the rest, it's insignificant in the overall picture. And to leave that as a buffer, and if they come in for a significant change, then negotiate with it, restill one and you get what you need. MR. SCOTT: And as the discussion is getting bigger anyway, leaving it in there is not all that either, so -- COMMISSIONER STRAIN: I definitely agree with you. So, with that maybe we are in a position where we feel comfortable enough to make a recommendation on this, and whatever DSAC does, does and then the BCC's got the benefit of whatever they want to hear. COMMISSIONER SCHIFFER: Mark, a question though. Do we want to, you know, even though it sounds like we might even vote not to be in favor of this process, do we want to revise this document in case it goes on without us? I mean, for that -- I mean, other groups may want this document, and if we just vote against it, we won't have the opportunity to fix it. COMMISSIONER STRAIN: But I'm concerned if we try to fix it, they're going to see that as an acquiescence to a mediation which everybody seems to think, and as far as I'm concerned, this is already duplicated in our system as it is and it would have such little impact. In fact, it may even end up having a negative impact because the little space that it frees up is going to be inundated with more density. MS. STUDENT-STIRLING: I think your recommendation has to be up or down. I don't think it can be -- COMMISSIONER STRAIN: With that I don't see -- I hope we Page 87 September 15,2005 discussed it enough. Is there a recommendation from this panel? COMMISSIONER CARON: I would put forth a recommendation to deny for-- COMMISSIONER STRAIN: Recommend denial? COMMISSIONER CARON: Recommend denial to the BCC. COMMISSIONER MURRAY: I'll second that. COMMISSIONER STRAIN: Recommend denial of the LDC changes for LDC 10; 134 related code sections 10.03.05B, 10.03.05F. There's been a second. Any other discussion? (No response.) COMMISSIONER STRAIN: Hearing none, all those in favor of denial? MS. STUDENT-STIRLING: Was there a second? COMMISSIONER STRAIN: Yes. All those in favor of denial. COMMISSIONER STRAIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY:: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MINDY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER STRAIN: Anyone opposed? No one is opposed. Motion passes. And that resolves the last item of the public hearings on our agenda today. There's no old business. New business, there is no new business left. Public comment? Doesn't look like there will be any. I guess we're adjourned. Thank you, gentlemen. ***** Page 88 September 15, 2005 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11: 10 a.m. COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman Page 89