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CCPC Minutes 11/17/2005 R November 17,2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida November 17, 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 at the Board of County Commissioners Meeting Room, Administration Building, 3301 Tamiami Trail East, Naples, Florida, with the following members present: CHAIRMAN: Mark P. Strain Lindy Adelstein Paul Midney Brad Schiffer Robert Vigliotti Donna Caron Russell Tuff Robert Murray ALSO PRESENT: Marjorie Student, Assistant County Attorney Patrick White, Assistant County Attorney Jennifer Belpedio, Assistant County Attorney Raymond Bellows, Chief Planner Page 1 MINUTES & RECORDS AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, NOVEMBER 17,2005, 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 MA Y 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 A V AILABLE FOR PRESENT A TION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBA TIM 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 - SEPTEMBER 30,2005, REGULAR MEETING 6. BCC REPORT- RECAPS - OCTOBER 25,2005, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. Petition: BD-2005-AR-7185, George Jordan, represented by Quin Kurth, of Turrell and Associates, is requesting a 22-foot boat dock extension for a new dock facility protruding 42 feet into a waterway that is 214 feet wide, to allow the mooring of two vessels. The subject property is located at 158 Windward Cay, Port of the Islands, (The Cays), Phase II, Lot 38, in Section 9, Township 52 South, Range 28 East. (Coordinator: Joyce Ernst) B. Petition: BD-2005-AR-7848, John Pollman, represented by Quin Kurth, of Turrell and Associates, is requesting a 4-foot boat dock extension from the allowed 20 feet for a protrusion of 24 feet into a waterway as measured from a new seawall that will align with existing seawalls. The subject property is located at 574 Coconut Avenue, Goodland Isles Lot 31, Block A, in Section 18, Township 52 South, Range 27 East, Goodland, Florida. (Coordinator: Joyce Ernst) 1 C. Petition: BD-2005-AR-7970, James M. and Eileen L. Boswell, II, represented by Miles L. Scofield of Scofield Marine Consulting, is requesting a 22-Foot boat dock extension to allow a total protrusion of 42 ft into waterway as measured from the property line. The subject property is located at 266 Third Street West, Bonita Springs, in Little Hickory Shores Unit 3 Replat, Lot 10, Block H, in Section 5, Township 48, Range 25, Collier County, Florida. (Coordinator: Joyce Ernst) D. Petition: VA-2005-AR-8010, James and Margaret Fornear, represented by Clay Brooker, Esquire, are requesting an after-the-fact variance for a 5.3-foot encroachment into the required 10-foot rear yard (accessory) setback, as applicable to a screen enclosure on a waterfTont lot, leaving a 4.7-foot rear yard. The subject property is located at 175 Bayview Avenue, Conners Vanderbilt Beach Est. Subdivision, Unit 1 Replat, Lot 7, in Section 32, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Michael Bosi) E. 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 0/., 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) CONTINUED TO 12/01/05 F. Petition: RZ-2005-AR-7825, Mandalay Place LLC, represented by Gary Butler, of Butler Engineering, Inc., requesting a rezone from the Estates (E) zoning district to the Residential Single-Family (RSF 5(3]) zoning district which allows 3 dwelling units per acre. The subject property, consisting of 2.31 acres, is located at 3111 Bailey Lane, in Section 23, Township 49 South, Range 25 East, Collier County, Florida. (Coordinator: Kay Deselem) G. Petition: PUDZ-A-2004-AR-6417, Ronald Benderson et ai, Trustee, represented by Robert L. Duane, AICP, of Hole Montes, Inc., and R. Bruce Anderson, of Roetzill & Andress LPA, requesting to rezone 1- 75/Alligator Alley from PUD to Commercial Planned Unit Development CPUD. The proposed PUD amendment requests the following: to reduce the size of the preserve/water management area from 15 acres currently required by the PUD to 11.4 acres; to delete residential uses as a permitted use; to provide a new list of commercial uses comparable to those allowed in the C-l through C-4 Commercial Districts, with SIC codes; modify the PUD Master Plan to depict the footprints of existing land uses and conceptual footprints for undeveloped tracts; to modify the circulation system; to establish a maximum number of square feet allowed to 265,000; to relocate the existing western entrance 50 feet to the east; and to reduce the 50 foot perimeter setback to 25 feet. The property, consisting of 40.8 acres, is located on the north side of Davis Boulevard in proximity to the intersection of Collier Boulevard and 1-75. The subject property is located in Section 34, Township 49 South, Range 26 East, Collier County, Florida. (Coordinator: Mike DeRuntz) H. Petition: PUDZ-A-2005-AR-7403, Grand Inn of Naples, Inc., represented by Michael Fernandez of Planning Development Incorporated requesting a rezone fTom the PUD zoning district to the PUD Mixed Use zoning district by revising the existing Pine Ridge Medical Center PUD Document and PUD Master Plan to reduce the commercial use to 10,000 sf, renovate the existing hotel into a condominium building with 64 residential units and change the name of the PUD. The property to be considered for this rezone is located in Section 15, Township 49 South, Range 25 East, Lot 51, Collier County, Florida. This property consists of 4.02± acres and is located at 11 00 Pine Ridge Road. (Coordinator: Michael Bosi) 2 9. OLD BUSINESS 10. NEW BUSINESS 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN November 17, 2005/CCPC Agenda/RB/hr 3 November 17,2005 CHAIRMAN STRAIN: Good morning, everyone. We're a few minutes late, but we're finally going to start our meeting, if you'll all rise for the pledge of allegiance. (Pledge of allegiance recited in unison.) CHAIRMAN STRAIN: Madam Secretary, could you do roll call, please. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Midney. COMMISSIONER MIDNEY: Here. COMMISSIONER CARON: Ms. Caron's here. Mr. Strain. CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein. COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Mr. Murray. COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: And Mr. Tuff. COMMISSIONER TUFF: Here. CHAIRMAN STRAIN: Okay. We have a quorum. The addenda to the agenda, Mr. Schiffer? COMMISSIONER SCHIFFER: Can we add September 15th's minutes? They were in the meeting that was canceled because of the stonn, but we should have them in our packets. CHAIRMAN STRAIN: Is there any problem with that, Ms. Student? MS. STUDENT: No, I don't see a problem with that. CHAIRMAN STRAIN: Okay. Planning commission absences. Ray, what's our next series of meetings? MR. BELLOWS: Mr. Chainnan, if I could just put on the record, too, that item 8E is continued. Page 2 ------.. November 17,2005 CHAIRMAN STRAIN: 8E? MR. BELLOWS: Yes. CHAIRMAN STRAIN: Michael D. House, the eco-tourist facility, Petition CU-2003-AR-4647 has been continued. And is the continuation date still December 1 st? MR. BELLOWS: To my knowledge, it is. CHAIRMAN STRAIN: Okay. Is there anything else, Ray? MR. BELLOWS: That's all I have. CHAIRMAN STRAIN: Our next scheduled meeting is December 1st. Then we have an AUIR meeting, but that's not until mid December; is that right? MR. BELLOWS: Let's see here. Meeting on December 15th. COMMISSIONER CARON: The 20th is AUIR. CHAIRMAN STRAIN: Okay. I just wanted to make sure, because there had been other dates. COMMISSIONER CARON: The 1st and the 15th are regular meetings plus LDC. MR. BELLOWS: That's correct. CHAIRMAN STRAIN: Okay. So for this commission's knowledge, then, the 1 st, 15th and 20th we will be meeting in December. COMMISSIONER MURRAY: 15th-- CHAIRMAN STRAIN: And 20th. MR. BELLOWS: 20th at what time? CHAIRMAN STRAIN: What time is the 20th, Ray? MR. BELLOWS: It's one o'clock. CHAIRMAN STRAIN: No, I think we start earlier than that. COMMISSIONER CARON: It was nine, nine o'clock. MR. BELLOWS: Nine o'clock. CHAIRMAN STRAIN: Okay. That's the AUIR. Thank you. Okay. We have two packages of minutes for approval. One is the September 15th. Page 3 November 17, 2005 Is there a motion to approve? COMMISSIONER ADELSTEIN: So moved. COMMISSIONER SCHIFFER: So moved. CHAIRMAN STRAIN: Motion is made by Commissioner Adelstein, seconded by Commissioner Schiffer. Any discussion? Hearing none, all those in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. MR. BELLOWS: We have a second package, September 30th. Is there a motion to approve? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein. Seconded by -- COMMISSIONER SCHIFFER: I'll second with a question. CHAIRMAN STRAIN: -- Commissioner Schiffer. Discussion? COMMISSIONER SCHIFFER: Why is the type so big on it? I mean, are we -- do we get paid by the page or something? It was actually -- it was difficult to read because it's so big. CHAIRMAN STRAIN: I don't know. I'm sure those of us that are sight impaired, reading, probably enjoyed it, but is that the only issue? COMMISSIONER SCHIFFER: That's my only issue. CHAIRMAN STRAIN: Is there -- I'll call for the vote. All those in favor of approving the minutes, signify by saying aye. Page 4 November 17,2005 Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Nobody opposed. Motion passes. Thank you. Recaps. Ray? MR. BELLOWS: Yes. The board had a heavy agenda last Tuesday. The board approved the reconsideration for the Sonoma Oaks petition 4 to 1. The HD Development petition was approved 5 to O. A conditional use for the Haitian church was approved 4 to 1. Bristol Pines PUD rezone was approved. Cirrus Pointe rezone was approved. Conditional use for Office Depot was approved. And on the summary agenda, the Mercato PUD was approved. Also the Westport Commerce Center PUD was approved. CHAIRMAN STRAIN: Okay. Thank you. Under chainnan's report, I have two things to mention to the commission. I had told you the last meeting I was working on a book of laws that apply to the planning commission. I have sections from our code of laws that apply, land development code sections, Florida statutes and resolutions so far, and I'm missing one body of law that I'm trying to get ahold of that I want to include in this so that you have a complete package, and I hope to have that by your next meeting. I talked to Mr. Schmidt about getting these copied and bound in binders like this for each one of us. Thanks to Mr. Schiffer's suggestion, you'll find that there are Page 5 November 17,2005 some issues in here that will be very enlightening to this commission and issues that we can actually initiate and things that we could probably do to maybe help things along better. So that's going to be another -- another meeting. I won't have it for this meeting, unfortunately. The other thing, Ray, in yesterday's -- or two days ago, I watched portions of the BCC meeting. I would like to mention to this commission one thing that occurred I was -- did not -- was a little bit displeasing. The attorney for HD Development told the Board of County Commissioners that the reason we had turned down the HD Development project was because of an affordable housing issue, and that in order to correct that, he was going to offer a contribution, and that seemed to be the sake or the only reason that we turned it down, which I know is not right. I, myself, listed four or five reasons, none of which were the affordable housing issue. I don't -- I don't know how to stop things like that from happening, but I wanted the commission to know it certainly was not -- it was not put forth in the manner in which I think was expressed at this meeting. MR. BELLOWS: Yeah, I agree. For the record Ray Bellows, zonIng manager. The staff usually follows the presentation. The petitioner can correct on the record. I watched it also, and noticed that because of the heavy agenda, that our staff wasn't allowed to get up there and correct the record. However, the executive summary did have full planning commission recommendations. CHAIRMAN STRAIN: The only problem is that the watching public and those sitting in the audience -- MR. BELLOWS: Yes. CHAIRMAN STRAIN: -- hear one issue and don't see some of the real supporting documentation. MR. BELLOWS: That's the policy for staff to correct the errors Page 6 November 17,2005 made by the applicant, and unfortunately, they were not given that opportunity. CHAIRMAN STRAIN: Well, I wanted to make sure during this moment of my report, I could at least try to correct the record somewhat here today. COMMISSIONER SCHIFFER: Mark, can I ask something? CHAIRMAN STRAIN: Sure. COMMISSIONER SCHIFFER: Ray, after things come before the planning commission, there is an additional executive summary that's put on top of, essentially, the same paperwork we get, correct, that goes to the commission? MR. BELLOWS: It's a summary of the staff report. We don't replicate the entire staff report. We just take the highlights of -- COMMISSIONER SCHIFFER: Of the meeting we had, correct? MR. BELLOWS: Yes. COMMISSIONER SCHIFFER: Is there a way we could get a copy of that? MR. BELLOWS: Of the executive summary? COMMISSIONER SCHIFFER: Right. MR. BELLOWS: I believe you can view it on line. I'll check into seeing how that could be arranged. CHAIRMAN STRAIN: Or to save paper and courier fees, I know -- MR. BELLOWS: E-mail? CHAIRMAN STRAIN: Just either E-mail a link to us so we can check it out at our leisure, because all of us may not have a desire to check it. I know I probably will once in a while. COMMISSIONER SCHIFFER: I will, too. CHAIRMAN STRAIN: That might be easier. MR. BELLOWS: E-mail sounds like a better way. CHAIRMAN STRAIN: Okay. With that, we'll move into the items on the agenda. The first one is petition BD-2005-AR-7185. For Page 7 November 17,2005 those wishing to testify on this particular issue, would you please raise and be sworn -- rise and be sworn in. (Speakers sworn.) CHAIRMAN STRAIN: Thank you. Are there any disclosures on the part of the planning commission? No disclosures? Then the applicant may proceed. MR. KURTH: Good morning. For the record, Quin Kurth of Turrell and Associates, representing the applicant, Mr. Dick Jordan. Mr. Jordan is requesting a 22-foot extension from the allowed 20 feet in the waterway approximately 214 feet wide. I would like to note that the original boat dock extension application had requested a 31- foot extension from the allowed 20 feet, thus the new dock protrusion has been reduced by 9 feet. This request of a 42 feet rather than 51 feet is for a single-family dock located at 158 Windward Cay in Port of the Islands, as you can see from the aerial. The boat dock extension is to facilitate the mooring of two vessels, one vessel 30 feet in length and one vessel 20 feet in length. The proposed dock has acquired state and federal pennits and meets the first and secondary criteria per the BDE application. The proposed docking facility has been designed to provide sufficient water depth for the larger vessel and boat lift and to prevent impacts to adjacent property owner's view. As you can see, this is the existing original application for the BDE, 51 feet, and this is the revised boat dock extension of 42 feet. As you can see, we have the larger vessel moored. I have water depths right here. And this vessel is 30 feet in length, thus, the draft is approximately two and a half feet, with another foot, foot and a half for the boat lift, thus requiring about four feet in depth, and that is mean low water. Page 8 November 17,2005 And these drawings, you should have in your package. I would like to present an aerial which you don't, and I can pass that out right now. COMMISSIONER ADELSTEIN: The one you showed over there -- CHAIRMAN STRAIN: Here's mine. COMMISSIONER ADELSTEIN: Thank you. MR. KURTH: Once again, this is off the Faka Union Canal in Port of the Islands. Our subject property, Mr. Jordan, 158 Windward Cay, is this dock right here, and the protrusion of 42 feet. As you can see, there are docks congruent within the inlet. We have 32, 37, 43 and 44 within the inlet. Like I said, I mean, it does not impede navigation, and we actually coordinated this with lot 37 to reduce -- or not reduce, but prevent impact to the adjacent property's view. Are there any questions? CHAIRMAN STRAIN: Commissioners, any questions of the applicant? COMMISSIONER SCHIFFER: Just one. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: You're going to be removing a portion of your dock to build this? MR. KURTH: Yes, sir. CHAIRMAN STRAIN: Okay. No further questions. Thank you. MR. KURTH: Thank you. MS. BELPEDIO: Mr. Chainnan, may I interject? CHAIRMAN STRAIN: Yes, ma'am. MS. BELPEDIO: I'm not sure how fonnal this group has been in accepting evidence into the record, but in the past I've seen bodies and motions move documents that are presented by petitioners or applicants into the record so that the court reporter can have a copy, and anybody reviewing the record will know what was looked at and what was relied upon. If that's the pleasure of this board, you may Page 9 November 17, 2005 want to do a motion. CHAIRMAN STRAIN: I see no reason why we shouldn't be more fonnal in that process to make sure the record is clear, and we have had many things already supplied to us this morning. So as each issue comes up, we'll probably have to go back and revisit the infonnation that was supplied and do the same thing. COMMISSIONER SCHIFFER: I'll make a motion to accept the aerial photograph, but you have to give the court reporter a copy. CHAIRMAN STRAIN: Is there a second? COMMISSIONER VIGLIOTTI: I'll second that. CHAIRMAN STRAIN: Motion made by Commissioner Schiffer, second by Commissioner Vigliotti. Any discussion? The motion was to accept into evidence the aerial photo passed out at the meeting here today. All those in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion passes. COMMISSIONER ADELSTEIN: I move that we approve DB -- CHAIRMAN STRAIN : We have to hear the staff report and the public -- COMMISSIONER ADELSTEIN: I'm sorry. CHAIRMAN STRAIN: Thank you. COMMISSIONER ADELSTEIN: I wanted to get it done. Page 10 .-.---.-.-,....-. ...........,--,-,._.~,. November 17,2005 CHAIRMAN STRAIN: Okay. COMMISSIONER ADELSTEIN: It was so clear. CHAIRMAN STRAIN: Staff report, please. Hi, Joyce. MS. ERNST: Okay. For the record, I'm Joyce Ernst with zoning and land development review. And as the applicant has said, this was originally on the July 7th agenda. However, because of opposition from adjacent neighbors, it was continued. The whole boat dock was reconfigured, and so now it's why it's being presented again today. And as you can see by the drawing that the applicant submitted, they are removing most of this dock, and really putting in a whole new boat dock, and the lot to the east, to the east of this is undeveloped. The lot to the west extends out 32 feet into the water, and there are similar extensions that have been granted in this same canal, and they plan to moor this vessel parallel to the shoreline to provide the least impact on the view of the adjacent neighbors and also still to not interfere with the use of the neighboring docks. Now, I did get a call yesterday from the neighbor to the east, and he originally was opposed, was one of the ones who was opposed to the 50-foot -- 51-foot extension, and after I explained to him how it was reconfigured, and they reduced the protrusion by nine feet, he then was -- didn't seem to have any opposition to this boat dock. I also just now received a copy of a note from Allen and Sandra Pitts. Now, they live at 154 Windward Cay. I'm not sure where this is in relationship to this dock, but they are not opposed to this extension. This facility complies with five of the five primary criteria, and five of the six secondary criteria. When you read your staff report, I think if you noticed on Page 6, I had -- there was an error on that, and I corrected it, and I faxed all of you a copy of the corrected page. I hope you all received it. If you want a hard copy, I can supply you with that also, and based on all of this, staff has to recommend approval for this extension. Are there any questions? Page 11 November 17,2005 CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: Joyce, there's two boats being put on here, and the problem with one of the criteria is the length of the two boats. Is the bigger boat going to be on the outside or the inside? MS. ERNST: It shows it to be on the inside. COMMISSIONER SCHIFFER: And we're sure of that? MS. ERNST: Well, that's what that drawing up there shows. It has the -- and I talked to the applicant, and they said the reason they put it on the inside was to least -- because it was on the outside, it would be impacting the view more than on the inside. COMMISSIONER SCHIFFER: That's my concern. Okay. MS. ERNST: That was one of the main objections before, was people felt that it was going to be more parallel -- perpendicular with the shoreline, and being perpendicular with the shoreline, the people at the end of the canal would have -- you know, it would obstruct their view more than being moored this way. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions of staff? Hearing none, thank you, Joyce. Ray, do we have any public speakers? MR. BELLOWS: No registered speakers. CHAIRMAN STRAIN: Okay. We'll close the public hearing, and I bet you, Mr. Adelstein, you've got something to say. COMMISSIONER ADELSTEIN: Sorry about that. I move we approve DB-7185, subject to staff recommendations. COMMISSIONER MURRAY: So second. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by Mr. Murray. Any discussion? All those in favor, signify by saying aye. Aye. COMMISSIONER SCHIFFER: Aye. Page 12 November 17,2005 COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion passes 8 to O. The next petition is BD-2005-AR-7848. John Pullman, four-foot boat extension. All those wishing to speak on this matter, please rise and be sworn in. (Speakers sworn.) CHAIRMAN STRAIN: Are there any disclosures on the part of the planning commission? Hearing none, the applicant can move forward. MR. KURTH: Good morning, once again. Quin Kurth, Turrell and Associates, representing the applicant, Mr. John Pollman. The applicant is requesting a four-foot extension from the allowed 20 feet for a single-family dock located at 584 Coconut A venue in Goodland. The boat dock extension is to facilitate the mooring of one vessel 35 feet in length. The proposed dock has acquired federal pennits and meets the first and secondary criteria per the BDE application. The proposed dock extension does not constitute any precedence for protrusion into the waterway, nor does it impede navigation or create an impact to the adjacent property's view. We have not exceeded the 25 percent width of waterway, and the vessel is moored at an angle to avoid disturbance with the adjacent dock to the west. Once again, we are requesting a boat dock extension of only four feet, and all criteria has been met. I have aerials to pass out again. If I could have Rocky come up and pass those aerials out. Page 13 November 17,2005 CHAIRMAN STRAIN: I was wondering what he was sitting there for. MR. KURTH: Thank you, Rocky. CHAIRMAN STRAIN: Jennifer, is it -- procedurally, should we be making a motion to accept this matter before we discuss it, or at the end of the discussion? MS. BELPEDIO: Before, I think, would be the better. CHAIRMAN STRAIN: Okay. Well, we have been passed some additional infonnation. If there is no objection to accepting this into the record, do I have a motion to accept it into the record? COMMISSIONER ADELSTEIN: So moved. COMMISSIONER SCHIFFER: Second. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein. Seconded by Commissioner Schiffer. Any discussion? Hearing none, all of those in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Opposed? (No Response.) CHAIRMAN STRAIN: None. Motion carries 8 to O. MR. KURTH: What you have in front of you is a zoomed-out aerial. Prior to viewing that aerial, I would like to show one zoomed in. As you can see, this is our subj ect property. Mr. Pullman, the applicant, is requesting to install a seawall and a single-family dock and moor one vessel and the total protrusion would be 24 feet. We would not exceed the 25 percent line of the canal. We are Page 14 "----,~, ,.~,- November 17,2005 within our setbacks. And you can see the other docks are congruent within the area, and this larger aerial I'm about to show depicts this very well. Our subj ect property, as you can see, the docks to the south have a protrusion of 38 feet, 33 feet, 25 feet, 29 feet just south and so forth, and the adj acent dock to the east is the same distance out. There is 55 feet within the navigational channel which produces plenty of room to navigate, so I don't see how this could impede navigation or block the adjacent property's view. As you can see, the dock has been angled just to avoid impacting the adjacent dock to the west. There is a request for only four feet. I understand there are public speakers for the proposed boat dock extension, and I would greatly appreciate the opportunity to address any concerns they might have. Are there any further questions? CHAIRMAN STRAIN: Questions of the applicant? Mr. Murray. COMMISSIONER MURRAY: Yes, sir. The material that appears to be soil or stone or something, is that -- am I correct in that, by the dock where the configuration is? MR. KURTH: Let me-- COMMISSIONER MURRAY: What is that material that seems to be extending itself out into the waterway? MR. KURTH: Am I pointing to it right now? This material, or is it landward of the -- COMMISSIONER MURRAY: That's correct, sir. MR. KURTH: Landward of the seawall? COMMISSIONER MURRAY: Yeah -- is that what -- MR. KURTH: There are existing mangroves right here. COMMISSIONER MURRAY: That's mangrove? MR. KURTH: Yeah, there's one small patch. Then there is existing riprap. COMMISSIONER MURRAY: Thank you. Page 15 November 17,2005 CHAIRMAN STRAIN: Any other questions? Mr. Schiffer. COMMISSIONER SCHIFFER: Looking at the topography map that you supplied, couldn't you pull this in? I mean, why are you putting it where you are putting it? MR. KURTH: I can show you this. COMMISSIONER SCHIFFER: And what do you nonnally need underneath the boating -- what are you trying to -- what kind of a depth are you looking for? MR. KURTH: To answer your first question, the reason we've angled the dock is you can see, which I'm pointing to, a finger pier on the adjacent property to the west. Therefore, when the vessel backs up, it will not impact that dock. That is the reason for our extension. However, if that dock was not there, I mean, we would still need to put it out 23 feet, which I do have a drawing, and that is where the tenninal platfonn is parallel to the seawall. That's where we're requesting, you know, the same depth as the last petition. We have a 30-foot boat and -- 35-foot boat with two and a half, approximately two and a half foot beam and another foot and a half for the boat lift, so about four feet. I have a drawing with water depths, so I can show that to you. COMMISSIONER SCHIFFER: Right. And that's the important one, because it looks like you could actually pull the dock back a little bit -- MR. KURTH: Well, as you can see, we have a proposed seawall, and right here on the corner is four feet, and right at the edge of this dock is four feet. And there is riprap. Let me show you the survey. COMMISSIONER SCHIFFER: It looks like the dock is four foot seven on the edge, at the western edge, and it appears to me that if you actually rotated it parallel with the property line a little bit. MR. KURTH: Ultimately, I think we could put it parallel to the seawall, but once again, we are impacting that adjacent property's Page 16 November 17,2005 dock to the west. If you moor the dock parallel, which I have that drawing, you can see, backing up would cause problems with that dock. So in fact, I mean, we do have water depths at this stage. I don't believe we can move it in any further from this point, but we're still having problems with the adjacent property's dock to the west. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Okay. Any further questions of the applicant? (N 0 response.) CHAIRMAN STRAIN: Thank you. MR. KURTH: Thank you. CHAIRMAN STRAIN: Does staff have a report? MS. ERNST: For the record, again, I'm Joyce Ernst with zoning and land development review. And I trust that all of you received the letters of objection that I put in the last agenda packet. Since that time, I've received two more letters of objection and both of these letters were from people who were on the other side of the canal from where this property is, and their objection was that they felt that the canal was too narrow to accommodate this four-foot boat dock extension. And I just want to give you a little background on how protrusions have been measured, because if you looked at the aerial that the applicant had, and let me give you another one, again, too, there are other docks on this waterway that protrude more than 20 feet. Well, before 1994, boat dock extensions were always measured to the property line, regardless of where it was located. Also, before 1994, we just looked at the boat dock. We didn't look at the boat dock and the boat in combination. However, after that time, we now measure boat dock extensions for the most restrictive point. If your property line is in the water, we still -- we measure it from the shoreline and not the property line. In addition to that, we Page 1 7 November 17, 2005 measure a combination of boat and dock. So if some of those people were to put these docks in today, the ones that extend out more than 25 feet from the shoreline or seawall, they would also require boat dock extensions. Now, this property is -- the property line for this subj ect lot is located ten feet seaward of the proposed seawall. Now, they propose to put the seawall in line with the adj acent seawalls, which is basically where your mean high waterline is also. The property to the east of this has a boathouse, and it appears to extend out approximately 20 feet. The property to the west has, as the applicant pointed out, a small boat dock that is right on the property line. It has another boat dock that is along the edge of the property, and they also have a boat slip, and it appears that the house is built over this boat slip. Now, the owner wishes to moor this boat parallel with the shoreline to have the least impact on the view of neighbors and to not impact the use of their docks, and still, 50 percent of the waterway is left for navigation. The petition complies with five of the primary criteria, and five of the six secondary criteria, and therefore, staff recommends approval. And does anyone have any questions? Yes. CHAIRMAN STRAIN: Commissioner Schiffer. COMMISSIONER SCHIFFER: Joyce, do you have this one thing, it's an elevation? It is numbered -- it's Section AA, Section AA. MS. ERNST: You want us to put that on the overhead here? COMMISSIONER SCHIFFER: There are some questions about where we're measuring this thing from. What I'm concerned about is the shoreline conditions. Good. You are proposing to put in a seawall. So I guess they couldn't build this until they put the seawall in; is that correct? MS. ERNST: A seawall can go in in an undeveloped piece of Page 18 ------~--,...,-,.~.~ November 17,2005 property. That can go in -- as long as they get all of their state pennits, it can go in at any time. But yes, they would want to build that before they put the dock in. COMMISSIONER SCHIFFER: Okay. And where do we measure from nonnally? You mentioned high water. In other words, is it atop a bank? Is it seawall? If they did not put the seawall in, where would we measure -- MS. ERNST: Because their property line is in the water, we would measure the extension from either the mean high waterline, or once they put the seawall in, it's going to be measured from the seawall. That's the most restrictive point. COMMISSIONER SCHIFFER: Okay. And where is the property line in relation to the seawall, do you know? MS. ERNST: It's ten feet seaward of where the proposed seawall would go in. COMMISSIONER SCHIFFER: Okay. Thank you. CHAIRMAN STRAIN: Could they put a seawall in at their property line if they got the pennits to do so? MS. ERNST: Yes, they could. CHAIRMAN STRAIN: And then the boat slip would then be measured from the seawall -- MS. ERNST: That's right. CHAIRMAN STRAIN: -- waterward? So actually, they have got ten feet that they could actually push the seawall out and maybe not even need a variance to get this dock put in. MS. ERNST: It appears that most of those lots in Goodland, all of their property lines seem to be in the water. I did notice one property that I think they did that, because the seawall juts out, and that was on the other side of the canal where possibly they put the seawall in on the property line and not ten feet landward of the property line. CHAIRMAN STRAIN: The aerial that was provided that we Page 19 -----,-,-- .-......- November 17,2005 admitted into evidence has a bunch of measurements on it. There's eight other docks shown in red on the aerial. Every one of them exceeds 20 feet, one of them is as much as 38 feet. Is it assumed that all of those docks now are grandfathered in from prior actions? MS. ERNST: I would assume so, and if they wanted to replace those docks, you can replace a nonconfonning dock as long as you can show proof that it was legally, you know, put in with either a building pennit or you bring in an aerial to show that it existed in 1990, but it would have to be, you know, the same dock. You cannot encroach any more. CHAIRMAN STRAIN: The dock directly across the water from this one is 29 feet, according to the sheet that was provided to us. MS. ERNST: Yeah. I mean, that's the way it looked to me. I was looking at the measurement on all of the docks, and that seemed to extend out quite a distance. CHAIRMAN STRAIN: There was a survey attached, and it shows those two docks at about 30 feet so I'm assuming the aerial that's here is fairly accurate. MS. ERNST: Yeah. From the aerial, you don't get exact, but you can get an approximate distance. CHAIRMAN STRAIN: Thank you, Joyce. Any other questions of staff? Hearing none, Ray, do we have any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: Okay. I'll close the hearing on petition BD-2005-AR-7848. Is there a motion? COMMISSIONER ADELSTEIN: I move we approve BD-7848, subject to staff recommendations. CHAIRMAN STRAIN: Is there a second? COMMISSIONER MURRAY: I'll second. CHAIRMAN STRAIN: Motion's been made by Commissioner Page 20 ~,,-,---_. November 17,2005 Adelstein, second by Commissioner Murray to approve the petition. All those -- is there any discussion? All those in favor, signifying by saying aye. Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Is anybody opposed? (No response.) CHAIRMAN STRAIN: Motion passes 8 to O. The next petition is Petition BD-2005-AR-7970. James M. and Ellen Boswell. That's another boat dock on Little Hickory Shores. All those wishing to testify, please rise and be sworn in. You guys are going to do this a lot this morning, I can tell. (Speakers sworn.) CHAIRMAN STRAIN: Any disclosures from the planning commission? Hearing none, we'll move on, and they're going to let you do something, Rocky, huh? MR. SCOFIELD: Good morning. For the record, Rocky Scofield, representing Jim Boswell, the owner. The -- what I've put on the aerial overhead is a vicinity, a map. It shows this is up in the Little Hickory Shores up in north -- the north end of Collier County off of -- just south of Bonita Beach Road. Mr. Boswell's residence is on Third Street, at 270 Third Street West, and that's -- this is Third Street West right here on the end, and CHAIRMAN STRAIN: You'll need the speaker, Rocky. I'm Page 21 November 17, 2005 sorry. There is a handheld behind you. MR. ROCCO: Sorry. This is on the sector of Little Hickory Bay right here, and you can see the wide expanse across here. On the west side of the bay over here is the subdivision of Lely Barefoot Beach. This is the Southport subdivision. Across Little Hickory Bay, this is the end of Third Street. You come around the corner on the inside of Third Street as referenced by this arrow, and then there is a circle there showing the location of the proposed dock. The dock is -- it's zoned as a BD lot. That's a boat dock lot. You've seen these before in here. They are on Third Street. They are small lots. They are not big enough to put a residential house on, and so they are zoned boat docks only. Most of these -- a lot of these docks in these areas have zero lot lines that was gone through the land development code before, and Mr. Boswell's lot is one of them. Mr. Boswell actually owns -- his residence is adjacent to this boat dock lot. He lives on Third Street just adjacent to it on the west side of this lot. Okay. On this -- just again, on an aerial, the dock is located where I have the pointer right up here in this corner. Mr. Boswell's residence is right here on the west side in the corner of Third Street. A lot of the docks in this area have two slips. We're only proposing one slip on this lot. It is a zero lot line, as I said before, and we just have one boat lift on this lot, and we have a little bit of excess deck area, as you can see from your drawings inside. Mr. Boswell is confined to a wheelchair. A lot of the -- part of -- at least a third of the deck area, though, is above the mean high waterline, so it's not excessive. We don't view it as excessive deck area. It's designed so he can get around his dock to both sides and maintain the boat up and down, and he does that. He's very active for being in a wheelchair, and he does all of this himself, in and out of the Page 22 -'------.,- November 17, 2005 boat, and we've designed it in order for him to do that. A lot of the docks in this area stick out 40 feet on this aerial. There are several -- this dock right across on the end of, it looks like, I believe this is Second, this dock sticks out 50 feet. I have pennitted several other docks along Third Street, and the boat dock lots extend out 32 to 45 feet, so this is nothing uncommon in this area. It's riprap and mangrove shorelines. It's very shallow near the shore, and the reason to put the extension out. The bows are -- the docks are all, in this area, are bow in, perpendicular to the shoreline in order to get enough depth under the stern of the boat. And if you have any questions, I would be glad to answer them for you. CHAIRMAN STRAIN: Commissioner Caron. COMMISSIONER CARON: Yeah. Right now, you're showing just this one boat dock. Does your client have the ability to put another boat dock right in front of his house? MR. SCOFIELD: Mr. Boswell can -- he can put a dock in front of his house if he wishes. COMMISSIONER CARON: And he owns another BD lot, too, right? MR. SCOFIELD: Do you own another lot, Jim? MR. BOSWELL: No. MR. SCOFIELD: No, he does not. He just owns the lot -- his residence is adjacent to this. COMMISSIONER CARON: Okay. MR. SCOFIELD: Let me put this on the overhead. That's in your packet. That's the design of the dock. It is out to the property lines. There's only one -- it's designed for one slip, one boat lift, and the access on both sides is so he can get around to the boat. COMMISSIONER CARON: It just looked, in something that I saw, like there was another lot to the west. Right, but -- Page 23 November 17,2005 MR. SCOFIELD: On this aerial, this is Mr. Boswell's residence right here where I'm pointing to. COMMISSIONER CARON: Yes. MR. SCOFIELD: This is his shoreline property in front of his home, which has a large mangrove area in front of a -- a vertical concrete seawall, there's a very extensive mangrove shelf out in front of this. Mr. Boswell owns the boat dock lot next to his house, and that's where he chooses to put -- COMMISSIONER CARON: But there is not a lot 11, correct? There is not a boat dock 11 ? MR. SCOFIELD: Let me get the survey out. COMMISSIONER SCHIFFER: There may be, Donna, but it's not on that side. MR. BOSWELL: Well, at one time it was -- CHAIRMAN STRAIN: We can't have testimony off the record, Rocky. MR. SCOFIELD: I'm sorry. Jim, do you want to come up and talk to that? MR. BOSWELL: Good morning, Commissioners. My name is Jim Boswell. CHAIRMAN STRAIN: Mr. Boswell, were you sworn in? MR. BOSWELL: Yes, I was. CHAIRMAN STRAIN: Thank you. MR. BOSWELL: Before the house was built approximately eight years ago, there were two lots. Lot 11, I can't remember which block, and lot 16. Those two were combined by virtue of the fact that we did a lot line adjustment in order to build the home. So for the record, that lot 11 does -- simply does not exist anymore. That's combined with lot 16. CHAIRMAN STRAIN: Thank you. COMMISSIONER CARON: Okay. MR. SCOFIELD: If you have any questions, I'll be glad-- Page 24 November 17, 2005 CHAIRMAN STRAIN: Commissioner Schiffer, do you have questions? COMMISSIONER SCHIFFER: When you support the dock, the pile, will that be outside or in line with it? In other words, you kind of show it up close to the property line, but where would the supporting pile be? MR. SCOFIELD: In any structure of the dock, it has to be inside the extended riparian lines, and that's laid out by surveyors. COMMISSIONER SCHIFFER: All right. Thank you. CHAIRMAN STRAIN: Any other questions of the applicant? Hearing none, we'll move on to the staff report. Thank you, Rocky. MR. SCOFIELD: Okay. MS. ERNST: For the record, I'm Joyce Ernst from zoning and land development review. And as Rocky said, this is going to be on one of the boat dock lots, and this was one of the docks that received a variance to build right up to the riparian line. The dock to the east of this extends out 45 feet, and that also was built right up to the riparian line. That also received that variance. Now, the owner lives to the west, and he was granted a boat dock extension in 1998, but he said he chooses, because he doesn't -- of the view that he has and all of the mangroves, he is choosing, at this time, not to build any boat docks. Since he owns this boat dock lot, he wants to build his boat dock on that lot. And past his -- Mr. Boswell's lot, there is a boat dock that extends out 40 feet into the water, and that's to the west of Mr. Boswell's lot. He plans to moor this boat perpendicular with the shoreline so it won't affect the use of the neighboring docks. And it doesn't affect navigation at all. It's quite a wide waterway there. I have not received any comments whatsoever for or against it. It complies with the criteria as indicated in the land development code, Page 25 November 17, 2005 and therefore, staff recommends approval. And does anybody have any questions? Yes. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Just for clarification purposes, please, to the side of that dock, there would appear to be two squares. Is that a dock or is that -- what is that, please? Do we know? MS. ERNST: It's two boat lifts. COMMISSIONER MURRAY: Those are boat lifts? MS. ERNST: Yes. COMMISSIONER MURRAY: And is there -- I would-- looking at that, I would wonder if there is sufficient clearance. Apparently, there is, but it certainly doesn't look like there is. MS. ERNST: Those boats are also moored parallel with the shoreline. So -- I'm sorry, perpendicular. COMMISSIONER MURRAY: Perpendicular would be logical. MS. ERNST: Perpendicular with the shoreline, as Mr. Boswell wants to moor his boat also. COMMISSIONER MURRAY: But there is adequate clearance, I take it. I see a nod from Mr. Scofield. MR. ERNST: Okay. CHAIRMAN STRAIN: Are there any other questions of the staff? Hearing none, Ray, do we have any public speakers? MR. BELLOWS: No speakers. CHAIRMAN STRAIN: No public speakers. We'll close the hearing for petition BD-2005-AR 7970 and entertain a motion. COMMISSIONER ADELSTEIN: I move that we approve DB-7970, subject to staff recommendations. CHAIRMAN STRAIN: Do you mean BD? COMMISSIONER ADELSTEIN: BD. CHAIRMAN STRAIN: BD-7970. Is there a second? COMMISSIONER MURRAY: I'll second that. Page 26 _.~_."_.,_._-,.._. - November 17,2005 CHAIRMAN STRAIN: Motion by Mr. Adelstein, second by Mr. Murray. Is there any discussion? No discussion, we'll call for the vote. All those in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion passes 8 to O. Thank you. Next petition, BA-2005-AR8010. James and Margaret Fornear, and it's a setback encroachment in Vanderbilt Beach. All those wishing to testify in this matter, please rise and be sworn In. (Speakers sworn.) CHAIRMAN STRAIN: Disclosures on the part of the planning commission? I had a conversation with Mr. Booker concerning the setback. Other than that, nothing else. COMMISSIONER SCHIFFER: Can I ask the county attorney a question? If we looked up something, in this case, I looked up the original pennits, is that something we should disclose and bring into the record or do we have to do that? MS. STUDENT: Well, if you want to enter it into the record, then I feel that you would need to distribute it and have a motion made for it to be entered. Other than looking it up, I don't know that it's an Page 27 --"'-~,._. November 17, 2005 ex parte communication with anyone. It's not like a site visit. It's not like a letter or a communication that you received. It's just an independent research that you did on your own. I don't think it could ever hurt to make the disclosure that you did look into it further, and that you may wish to enter some things into the record yourself. But I think it needs to be passed out to everyone, including the petitioner and any interested parties. COMMISSIONER SCHIFFER: Okay. Then no disclosures. CHAIRMAN STRAIN: I'm glad that the county attorney has offered that as an opinion, because I mean, we go through books of data. So this is much better. Go ahead, Mr. Brooker. MR. BROOKER: For the record, Clay Brooker on behalf of the applicants, Jim and Margaret Fornear. Before you is another one of the Vanderbilt Beach variance applications. I know the commission has seen several of them thus far. This is an after-the-fact variance which pertains to the rear yard setback, as applicable to an accessory structure, namely, a screen enclosure. It is on a waterfront lot. The back yard, basically, as you can see from the picture up on the screen there of -- the Fornears' house is in the middle of that photograph. They do back into a -- back up to a canal that's approximately 100 feet wide. Under nonnal conditions, the code requires a ten-foot yard setback for the accessory structure. This is not one of the cases where 20 feet is required because the deck is within four feet of the height of the seawall, so we're not dealing with any issues there. We are seeking a 5.3 foot encroachment into the ten-foot setback, which will leave 4.7 feet between the screen enclosure and the outside edge of the seawall. Mr. and Mrs. Fornear purchased this house in late 1996 from the original owner/builder. Both Mr. Fornear and that builder have Page 28 November 17, 2005 infonned me that the F ornears moved in after the spa. There is no pool here, it's just a Jacuzzi type spa and screen were installed. Bottom line, what that means is Mr. and Mrs. Fornear are innocent successor purchasers. They lived in this house for approximately nine years without any complaints being raised. The first notice or knowledge of any problem was a notice of violation filed by the code enforcement department of the county in approximately 2003. The neighbors on either side of the Fornears' house, and their houses are pictured on the picture on the screen as well, to the left side or to the west is Ms. Ayaydin or Ayaydin, I apologize if I'm mispronouncing her name, and to the right or to the east is Mr. and Mrs. McWhirter. Both of those neighbors have no objection to this petition, and have issued or sent in letters to the county in support of this petition. I have asked Mr. Bosi to make those part of the record. And if he, for whatever reason, forgets to do so, I fonnally request that those letters be made part of the record. Another issue, and I guess the reason why I'm bringing up that point is one of the factors to consider is -- in detennining whether this variance should be granted is whether the goals and objectives of this regulation, namely, a rear yard setback, are ameliorated in any aspect, and I guess the goals and objectives for several of them for rear yard setbacks are to allow space, air, light and view. If the immediate neighbors to either side, which in my opinion would be most impacted by this -- by the screen enclosure, have no objection, they are the ones whose view would be mostly impacted, they have no objection, so I believe that fact ameliorates the goals and objectives of the rear yard setback. In addition, a factor itself as laid out in the code and in the application states that, are there natural conditions such as a lake, a preserve, a golf course that you back up on that would ameliorate or Page 29 November 17,2005 diminish the importance of that rear yard setback, and in this case, we aren't back to back with a neighbor, a dwelling. We are back -- we back up against a 100- foot wide canal. So again, in my opinion, that goal or that objective of a rear yard setback is ameliorated or diminished in importance. What I will call the ugly side of this petition is the fact that, in my investigation, I have not been able to locate a pennit for the screen enclosure. That doesn't mean one was not issued by the county, necessarily. It just means that neither I nor Mr. Bosi have been able to locate one. The builder of the home from whom the Fornears purchased back in 1996 infonned me that a subcontractor out of Fort Myers, he couldn't recall the name of the company, was, in fact, retained to install the screen enclosure prior to the F ornears moving in, and he assumed that subcontractor pulled a pennit. But again, no pennit can be found for it. I still believe, though, the fact that there is no pennit that can be found does not change the fact that the F ornears, the petitioners here, are innocent successor purchasers, and would be unjustly punished, in my opinion, if this variance is not granted. Finally, in the staff report, understandably so, Mr. Bosi suggests that the screen may have been installed after the F ornears moved in, implying that perhaps the F omears themselves installed the screen, and because there is no pennit, I believe that's a reasonable position that Mr. Bosi takes. There is no evidence of this, of the fact or the implication that the F ornears themselves installed it after they moved In. In fact, the evidence that you have before you is my testimony that both Mr. Fornear and the builder of the home have informed me that the screen enclosure was installed prior to the Fornears moving in. In addition to that, I have reviewed -- I went to the property appraiser's office and attempted to find historical aerial photographs Page 30 November 17, 2005 from back in that time period, and I'll show you two. The bottom line is that we can't conclusively demonstrate by the aerial photography when the screen enclosure was installed, but I do have -- and I'll ask Mr. Bellows to put that on the screen. This is a photograph from the property appraiser's office, and if, Ray, if you could back out to see the date at the bottom, please. It is dated 2000. This would conclusively prove that the screen was installed prior to 2000. Again, the F ornears purchased in 1996, so now we're down to a four-year window, roughly -- well, three year and some months window of when the screen enclosure was installed. I don't know if something like this can be put up on the projector. The photograph you are about to see is the closest, the best aerial photograph we could get, and coincidentally, this photograph is dated November of 1996. So this would be perfect, right around the time to conclusively prove, but as you can tell, the resolution, this is the best the property appraiser could come up with. Of course, me being, representing them, I will say, sure, there, you can see the screen right there in the picture. But it's tough. It's tough to call, but that's the best we could do. My only -- my bottom line comment on this issue as to when this screen was installed was the only evidence you are going to have before you is that Mr. F ornear and the builder have infonned me that it was, in fact, installed prior to them moving in. So this is a case where it was not created by the applicant himself. Bottom line, we simply request that the variance petition be forwarded on to the BCC with a recommendation of approval. And I'll answer any questions you may have. CHAIRMAN STRAIN: Mr. Adelstein. COMMISSIONER ADELSTEIN: First question is, doesn't anyone know who built the screen enclosure? I mean, the -- MR. BROOKER: Mario Constantini was the first owner/builder Page 31 November 17,2005 of the home, and that's who I have been referring to as the builder. I've asked him that very question. He could not recall the name of that company. He, in fact, infonned me that at the time, in 2003, when the notice of violation was issued by the county, he did place a phone call to try to track them down, and that entity, the phone line was just disconnected or no longer in service, but that's what he told me. He's an older gentleman. Maybe from 2003 to now, he could remember the name of the company out of Fort Myers, but he simply could not recall it and was unable to tell me any name. COMMISSIONER ADELSTEIN: It seems to me, though, that somewhere, if there was a pennit, that contractor would have a copy of that pennit. I mean, that's nonnal business, and somebody -- this gentleman, the original builder, was the one that he -- you say found the contractor to do the job? MR. BROOKER: That's correct, and I've asked him that very question, wouldn't you, as the quote, unquote, general contractor, have a copy of any pennit that the subcontractor pulled, and he said, under nonnal circumstances, yes, but he said, Clay, I just can't locate it in my files. COMMISSIONER ADELSTEIN: What about the situation, the certificate of occupancy for the swimming pool and the spa were issued in June -- January, pardon me, 5th of'04. MR. BROOKER: My understanding of what happened there is the spa itself was, in fact, pennitted back in 1996, but there was never a final inspection, apparently, completed. So they came in -- when the notice of violation was issued, the notice of violation included that issue as well. We can't find a CO for the spa. And I believe the contractor who installed the spa, Creative Pools, then came in after the fact and got an after-the-fact pennit. So that's why you see that date that doesn't seem to, on its face, to make sense, but they came in after the fact and got the final CO, because the work was done in Page 32 November 17,2005 compliance with the pennit. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: This is more for our attorneys. Mr. Brooker testified that he had heard from parties that they knew certain infonnation. What weight may we apply to such a statement? That would seem to be hearsay, isn't it? MS. STUDENT: It does, but, gentlemen, you are constrained by the criteria that are found in the land development code. COMMISSIONER MURRAY: Okay. MS. STUDENT: And that also you find in your staff report, and those are the criteria that you are to judge the variance by. Who may have said what to whom about, you know, if it goes to one of the criteria, it may be important, but again, you are constrained by the criteria, and yes, it does seem to be hearsay. However, hearsay rules in quasi-judicial matters are not as strictly applied as they are in an actual court of law. COMMISSIONER MURRAY: Thank you, Marjorie. MR. BROOKER: If I could respond. If the commission would like an affidavit from both the builder and Mr. and Mrs. Fornear on that aspect, I can easily present it to you. COMMISSIONER MURRAY: I just wanted to understand. CHAIRMAN STRAIN: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: I have a question. You keep using the phrase, before your clients moved in, instead of purchased. Is that the same? Is there a time between when they purchased the house and moved in? Was there a delay in between? Because you keep using the word -- MR. BROOKER: Excellent question. COMMISSIONER VIGLIOTTI: -- that, before my clients moved in. MR. BROOKER: Right. If you really look at the dates closely, the CO for the house was in July of '96. The spa pennit was pulled, I Page 33 November 17,2005 believe, on July 30th of 1996. The deed from Mario Constantini to the Fornears is dated August 2nd, 1996, so three days later. The Fornears did not move in immediately because the spa and screen were not completed yet, and they had paid and contracted for it, and also, they were given some time to furnish the house, get it ready to be lived in, and by the time they moved in, everything was complete. COMMISSIONER VIGLIOTTI: How long was that delay? MR. BROOKER: The best answer I could be given was about a couple of months. So they moved in, in the November of 1996 time frame. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Commissioner Caron. COMMISSIONER CARON: You mentioned the houses on either side that we were given letters of no objection. Do you know if they comply? MR. BROOKER: If the neighbors comply? COMMISSIONER CARON: If their houses are in compliance. MR. BROOKER: I believe -- I will state that in my investigation, I have found no evidence of any violations on their property, but I can't conclusively tell you, give you an answer to that question. CHAIRMAN STRAIN: Commissioner Adelstein. COMMISSIONER ADELSTEIN: Your statement before that one was they paid and contracted for it, what you said. MR. BROOKER: They paid Mr. Constantini for the screen enclosure and spa to be installed, and as a matter of fact, when the closing occurred on August 2nd, 1996, a portion of the purchase price was held back, not transferred over to Mr. Constantini because the screen and spa were not completed yet. That is on the closing statement. I can show you, if you would like to see it, but a portion of the purchase price was held back in escrow until completion of the spa and screen so the F ornears had some comfort level that what they paid Page 34 November 17, 2005 for was going to be installed and completed prior to them moving in. COMMISSIONER ADELSTEIN: So then it was actually built after they owned it, owned the property. MR. BROOKER: I think you can probably -- yes, I think the answer to that is yes, because of the dates. No one can give me an exact date on when things were built, but yes, from the dates of the deed transfer of August 2nd, I find it hard to believe that they were able to build a spa and a screen enclosure in approximately three days from July 30th to August 2nd, so yes. COMMISSIONER ADELSTEIN: And again, they didn't know, either, who was doing the work? I mean, they didn't try to find out? MR. BROOKER: No. Initially, this was a summer home. They were not in the area, and they were relying on the builder to make sure everything was complied with. CHAIRMAN STRAIN: Commissioner Schiffer. COMMISSIONER SCHIFFER: But, essentially, you make it sound like they are the victims of this, but they are the initial owner of this property. They negotiating with the builder. They probably may have requested the spa and screen be built. MR. BROOKER: They were not the initial owner of this property. Mr. Constantini was. And prior to that, I don't know, but Mr. Constantini owned it back in the -- at least by 1990, six years prior, and this house was actually pennitted beginning in 1990, and for various reasons, financial and otherwise dealing with Mr. Constantini, which I believe are outside of the scope of this hearing, the house simply wasn't built and the pennit simply kept getting renewed until the house was built, but the first pennit was pulled by Mario Constantini in 1990. So the F ornears had no involvement in requesting the spa or the screen. It was part of the package that was for sale to the Fornears. COMMISSIONER SCHIFFER: But your testimony stated that it didn't exist. They actually held up monies in the closing to complete Page 35 November 17, 2005 this. So in other words, it was during their ownership that these things were completed. MR. BROOKER: That is true, but the contract for purchase, which was prior to their -- obviously, their ownership, was the package for sale included the screen and the spa. COMMISSIONER SCHIFFER: Right. MR. BROOKER: That's what they purchased way before -- I don't have the contract, I don't know what date they signed the contract to purchase, but this was part of the deal they purchased, and when it came time to close, my understanding is that Mr. Constantini was running short of funds and asked that the closing take place for transfer of funds to a great extent, not including the spa and the screen, because those were not completed yet, but that was the reason that I have been told why everything was crunched together and the F ornears actually -- the title was transferred to the F ornears on August 2nd prior to completion of the screen and spa. COMMISSIONER SCHIFFER: The application for the screen and spa, the pennit application, for not the screen, the spa, is July 30th. So in other words, is this not something they requested be built in the house? MR. BROOKER: No. The applicant and the owner on the spa pennit is indicated as Mario Constantini. COMMISSIONER SCHIFFER: Correct. But that's July 30th, two days before they closed. So obviously, somebody must have requested the spa be built. They went in to get a pennit for the spa at the time of closing. It's not like this spa has been sitting around since 1990. All of this work was done at maybe your clients' request. MR. BROOKER: I don't believe it was at my clients' request. I believe that was the design that was presented by Mr. Constantini to the Fornears. They purchased that design, and when the time came to close that particular element of the package, which they purchased, was not completed yet, and that was the reason why the funds were Page 36 November 17,2005 simply held in escrow. This is not a special request of the Fornears. This was part of the package that they purchased way beyond or way prior to the July 1996 time frame. COMMISSIONER SCHIFFER: Yet, the spa was pennitted three days before they closed. MR. BROOKER: Correct. COMMISSIONER SCHIFFER: Okay. Thank you. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Just to follow up. It's getting to be a little confusing now to me. If Mr. Constantini, was he the resident and owner of the property? MR. BROOKER: I don't believe he could be a resident, because there was no house there, but he was the owner of the property. COMMISSIONER MURRAY: He was the owner of the property? MR. BROOKER: Yes. COMMISSIONER MURRAY: And so he offered the property with an improvement on it, and an additional improvement of a spa and a cage; is that correct? MR. BROOKER: That's my understanding, correct. COMMISSIONER MURRAY: And the other folks entered into a contract with that understanding, and even reserved some money because they wanted to be sure it was complete. MR. BROOKER: Yes, they entered into that contract with the spa and screen as part of the package, and at the time, when the CO was issued for the house in July of 1996, my understanding is that Mr. Constantini came to the F ornears and said, look, the spa and screen are not completed yet, but would you guys mind going ahead and closing anyway, we'll hold back a portion of the funds -- COMMISSIONER MURRAY: Okay. MR. BROOKER -- to ensure that I am going to give you what you contracted for or what I presented to you, and the F ornears said, Page 37 November 17,2005 okay, fine. COMMISSIONER MURRAY: Okay. I now understand. For a moment there, I thought you were indicating that Mr. Con -- whatever that gentleman's name is, was a resident there, but, in fact, he's the builder, isn't he? MR. BROOKER: That's correct. COMMISSIONER MURRAY: Thank you. COMMISSIONER SCHIFFER: Mark-- CHAIRMAN STRAIN: Mr. Vigliotti was next. Then Mr. Adelstein, then you. COMMISSIONER VIGLIOTTI: I have a question. You stated that Mr. Constantini found a phone number for the person who installed the screen cage. Did he have a name or did you or your client follow up? I'm presuming he was a licensed contractor, you could have followed up with the county by name. If you had a phone number, you had a name. Did either you or your client do any more follow-up? MR. BROOKER: I asked that question as well. Can't be found. I don't know the exact time frame where Mr. Constantini attempted to contact that Fort Myers, apparently, outfit, but no infonnation was given to me, one way or another, in any regard whatsoever, other than it was a Fort Myers outfit. COMMISSIONER VIGLIOTTI: If you had a phone number, and he could give you the phone number, couldn't you or your client follow up on it? MR. BROOKER: Totally agree. I asked that question and was told he doesn't have it. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Mr. Adelstein. COMMISSIONER ADELSTEIN : You got the necessary county documents for the pool, the spa, and all these are in the same time frame, and you don't have it for the cage. It seems to me that the Page 38 November 17, 2005 logical answer to that is that there wasn't one in the first place. I mean, if they have got the other two, they all came in sequence, because they came -- were being done at exactly the same time. It only seems to me to say that if they got those on the other items, and there isn't one on the pool cage, there never was one applied for. MR. BROOKER: That can be a conclusion you can draw. There is no evidence of that, conclusive evidence, one way or the other. All I can tell you is we've looked and we were unable to find any in the county or in our records from the builder. Doesn't change the fact, again, Mr. Fornear and Mrs. Fornear had nothing to do with this issue and they have been living in this house for nine years with no problems whatsoever. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: In Mr. Murray's answer -- your answer to him actually confuses -- they are the first people to occupy this residence, correct? MR. BROOKER: Correct. COMMISSIONER SCHIFFER: Okay. Thank you. CHAIRMAN STRAIN: Okay. I have one question of you, Clay. You said code enforcement came out and they cited you for not only the cage, but also the spa and something else, or what was that all about? MR. BROOKER: It was a very confusing notice of violation, which I, myself, did not understand. It was in around the 2003 time frame, and as a matter of fact, that notice of violation just seemed to put the spa issue in the limelight from what we could gather from -- it's not a very clear notice of violation, and what the county did subsequent to that was simply ignored or disregarded that notice of violation, because it was so confusing, and they issued another one. Apparently, the code enforcement officer that issued the initial one in 2003 no longer works for the county, and a new code enforcement officer has come in and cleaned up the notice of violation Page 39 November 17, 2005 to narrow down exactly what the issue was or is, and that's the one that we're working on today and the reason why we are here today. CHAIRMAN STRAIN: What is the notice of violation of the one we're working on today? Is it anything besides the screen enclosure? Didn't I hear you say earlier it was the spa, you had been cited for the spa as well? MR. BROOKER: Yes. CHAIRMAN STRAIN: Okay. Is the one we're dealing with today any longer the spa? MR. BROOKER: No. CHAIRMAN STRAIN: Okay. How did the spa get off the notice of violation? MR. BROOKER: Because a final inspection, apparently, was requested. The county came out, inspected it, done, complete, fine, issued a CO for it in 2004. CHAIRMAN STRAIN: Was it acknowledged that there was a pennit in place for the spa by the county or did you have to show the county there was a pennit in place? MR. BROOKER: I don't know the answer to that. All I know is that when I went and looked at development services files, the spa pennit was in the file. CHAIRMAN STRAIN: Okay. And then the last thing, do you know if the plans that were submitted for the pennit for the house at the time it was built included a depiction of a screen enclosure around the pool/spa area? MR. BROOKER: The initial plans in 1990 showed a deck ten feet from -- showed a setback of ten feet, but no spa or screen enclosure was shown at that time. As the plans evolved and as I mentioned to you, there were expirations of pennits. It was maybe a two or three pennit issuance kind of life to this whole house. The plans were modified a little bit here and there, but the initial plans in 1990 showed a deck that met the ten-foot setback. Page 40 November 17, 2005 Now, I say that it meets the ten-foot setback. At that point in time, and I don't want to create more confusion, at that point in time, the setback was measured from the property line, not the seawall. Mr. Fornear actually owns nine feet beyond the seawall. The platted property lot goes into the water. That's where all measurements took place until 1994. So in -- when the initial plans were submitted and the deck was shown, everything was fine, because we measured from the property line. If I can speculate, when the plans were just being renewed or the pennits were just being renewed, as it went through the years, back in 1994 was when the land development code was amended to change the measuring point from the most restrictive of a number of measurement points, property line and seawall. So now, all of a sudden, we measure from the seawall, and at that point in time, maybe someone missed it, or it wasn't noted clearly on the plans, but to answer your question as succinctly as I can, yes, the very first plan submitted to the county showed a deck ten feet from the property line, showed a ten-foot setback. CHAIRMAN STRAIN: Do you know the date of that first set of plans? MR. BROOKER: Yes. I have a 1989 date with a January 9, 1990 pennit issued. That pennit number is 90-58. CHAIRMAN STRAIN: So when the pennit was issued, the ten- foot setback was consistent with the land development code at the time? MR. BROOKER: Absolutely. CHAIRMAN STRAIN: Thank you. Okay. Can we have a staff report at this point? Good morning. MR. BOSI: Good morning, planning commission members. My name is Mike Bosi, zoning and land development review, for the record. Before I get into the staff report, which I will try to be extremely Page 41 November 17, 2005 succinct, based upon the length of discussion we had, two housekeeping measures. First, on the first page of the staff report, there is an incorrect wording of the legal description. It says Vanderbilt -- Conner's Vanderbilt Beach Estates Subdivision, Unit 1, Replat, lot 7. The actual correct legal description is Conner's Vanderbilt Beach Estates Subdivision, Unit 1, block C, lot 7. The second one occurs on the fourth page of your staff report, where it references the east property being vacant. The east property is not vacant. It, in fact -- part of the record that I'm going to introduce right now is a letter from that east property owner, which has a house which an individual currently resides at, supporting this document, and with that, with Chainnan Strain's discretion, I will introduce the three letters of public comment to the court reporter. CHAIRMAN STRAIN: Yes, and I think we're going to have a make a motion to accept those into the record. Can you just state the names in the three letters so we know what we're accepting in the record? MR. BOSI: We have a letter of support from Ingrid Ayaydin of 163 Bayview Avenue. We have a letter of support from a Jeanette Mc Whirter from 187 Bayview Avenue, and a letter of opposition from a Barbara Miller of 239 Bayview Avenue. CHAIRMAN STRAIN: Okay. Is there a motion to accept these into evidence? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by -- COMMISSIONER CARON: Second. CHAIRMAN STRAIN: -- Commissioner Caron. All of those in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. Page 42 ---'.-"."...-..---.".--. November 17, 2005 COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (No Response.) CHAIRMAN STRAIN: Motion carries to accept those into evidence. Thank you, Mike. MR. BOSI: Within the staff report, the issue of who and where this -- the screen enclosure, when it came about, it was alluded to. By no means within the staff report was I trying to place the burden or the blame of the construction of the screen enclosure on the previous builder or on the current owners. I just referenced that between when the house was built in 1996 and to date, without being able to find evidence of when a building pennit was issued for that screen enclosure, staff could not conclude when that was constructed. So the length of time that that screen enclosure has existed, staff would have to say between 1996 and to date, based upon the evidence that was submitted. Regarding the property appraiser's 2000 photo, it would be between 2000 and '96. By no means was staff trying to assign blame in the least bit on any of the parties. Staff was just trying to make the point that we were unsure of when that happened. Really, when we looked at this, and we looked at it from a planning perspective, those issues are of concern to the planning commission and the board of county commissioners, but, really, towards staff, we just look at it straight from the criteria that we have to look at for what would be justifiable reasons to grant the variance. Those start on Page 6 of your staff report. Staff was only able to find two of the six or two of the eight items towards where we felt the application satisfied those criteria, and by no means, for granting a variance, do all of those items have to be satisfied. Page 43 November 17,2005 But staff needed to point out we felt that the -- only two of them really would justify the granting of the variance, and where I, as a planner and traditionally from staffs perspective, we really relegate ourselves to physical hardships of land, and those are the reasons that would justify the variance. We looked at this piece of property and we found a lack -- we found a lack of physical hardships of the land, and with that, that is how staff had arrived at a recommendation of denial. We understand that there are ameliorating factors that can be included within the decision-making process by the planning commission and the board of county commissioners, but from staffs perspective, we looked at it and we felt that a recommendation of denial was the only recommendation that we could offer for this petition, and with that, I'll open myself for any questions the planning commission may have. CHAIRMAN STRAIN: Commissioner Schiffer. COMMISSIONER SCHIFFER: One quick little bookkeeping thing first is that in the application it was supposed to note if there's any homeowners' association. Is there a homeowners' association in this area, because there was a note that it's left blank. The reason I asked that it is because it would be kind of important to feel (sic) what the homeowners felt about this, at least the association. So is that a requirement? I mean, I know it's in the application. It's left blank. Is that something that should be filled in or-- MR. BOSI: Well, if there is a homeowners' association that represents that street or that street is a part of the homeowners' association, that is supposed to be indicated within the application. I'm unaware of any homeowners' association that may cover that individual street, and with that, maybe I was negligent in that process, but I am unaware of any homeowners' association represented on that street. COMMISSIONER SCHIFFER: We'll assume there is none, Page 44 November 17, 2005 because there is none filled in there then. Okay. One thing, in his testimony, he stated that the screen was one of the reasons they were holding it up. So when you stated that the current owner and the closing is on the 2nd, if at the closing the screen isn't built, then essentially, your statement is correct, it is the current owner. This is being built during his ownership. MR. BOSI: As Mr. Brooker had adequately addressed, I can't conclusively make those detenninations, but a logical detennination would have to assume that if a building pennit was issued on the 30th, and the closing was on the 2nd, that activity would have to take place when the tenantship or ownership was with the current property owners. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Mike, do you know what spurred the first inspection for the violation? MR. BOSI: I believe this was part of the sweep in 2003 of boat docks, screen enclosures, the seawall relationship to the pool decks. I think it was part of that original code enforcement crackdown, if you will, in 2003, and this is one of the many that have -- that have come about, and I believe it's one of the last of those variance requests from that 2003 code enforcement sweep. COMMISSIONER VIGLIOTTI: So there was no specific conditions that caused this to happen other than the sweep? MR. BOSI: None that I'm aware of. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Mike, do you concur with Mr. Brooker's comments that this particular property and its setbacks were legal at the time the plans indicate that the drawings were drawn? MR. BOSI: Absolutely. In 1990, this issue would not have -- this would not be an issue if the same regulations were applied that were applied in 1990, but as we all know, in 1994, the definitions and Page 45 November 17,2005 how those manifested were changed. CHAIRMAN STRAIN: So what it boils down to is in 1990, they could have a deck, and had they, at the time, on their building plans, even shown a screen enclosure on that deck, they would have shown ten foot from the property line, which was acceptable at that time, and they would have got a pennit for it. Is that a fair statement? MR. BOSI: If they would have followed through on that building pennit in 1990, and constructed the house as shown, we wouldn't be here today, but because they waited until '96, we are. CHAIRMAN STRAIN: Well, in essence, what happens is if you build a house under a code prior to '94, that allowed you to have a ten- foot setback on a deck with the intention of someday, when you could afford it, possibly putting on a screen enclosure, the code changes in the meantime, you no longer apply to that ten-foot setback for the screen enclosure, but the deck's sitting there and you can't put a screen enclosure on it. Is that -- MR. BOSI: Correct. CHAIRMAN STRAIN: Thank you. Any other questions of staff? Thank you, Mike. Ray, is there any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: With that, we'll close the public hearing and entertain a motion. COMMISSIONER ADELSTEIN: I move that AR-8010 be forwarded to the board of county commissioners with a recommendation of non-approval. COMMISSIONER VIGLIOTTI: I'll second. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by Commissioner Vigliotti. Is there a discussion? COMMISSIONER ADELSTEIN: Yes. I would like to make one statement. I honestly believe that when this goes to the county Page 46 November 17, 2005 commissioners, it will be approved, but I can't do it. CHAIRMAN STRAIN: Mr. Schiffer, did you have a comment? COMMISSIONER SCHIFFER: Yes. I think the comment, it's actually summed up really good in this letter from Barbara Miller. Is that what you said, Mark? You exposed as true that, if the code changes, you are stuck. I mean, there's a lot of people out there that have to adjust to code changes, and they do, so, in respect to them, I'm certainly going to vote in favor. CHAIRMAN STRAIN: Well, I'm going to be voting against the motion, because I agree with you, you have to work with the code changes, but when it involves a structure that's in place at a ten-foot setback that was accepted at the time, clearly, the intention of a pool cage or a pool deck is that someday it could potentially have a pool cage, and to have the code change in the middle of a process and say all of a sudden, you can't have it, I think, is a hardship to the applicant and unfair to the public. So I certainly am not in favor of this. It was pennitted in 1990 or in earlier years as far as the deck goes. It was legal then. It should be legal now. There's no opposition from the adjoining neighbors, who are the most impacted by this. If they don't have a problem with its view, I can't see why anybody else needs to have. That's my statement. COMMISSIONER CARON: I think we don't know, number one, whether they are in compliance, so that they may have their own motives for not obj ecting, for one thing. And secondly, while the pennit may have been pulled in 1990, the changes to the code were made in '94, and this house wasn't built until '96. So everybody should have been up to speed by that point, and if we have every other pennit, and we do, except the screen enclosure, something is amiss. I don't think a pennit was ever pulled for it, and I don't know that we should be approving non-pennitted structures. CHAIRMAN STRAIN: Are there any other comments? Ifnone, Page 47 November 17, 2005 call for the motion. All those in favor of recommending? Denial signify by raising your hand. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: One, two, three, four, five, six recommend. Denial? Those in -- COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Against the motion, two. Motion carries 6 to 2. Thank you. With that, we'll take a ten-minute break for the court reporter. Thank you. (Recess taken.) CHAIRMAN STRAIN: There is something that has occurred that -- there is another bad thing that has happened. We're losing two very, very talented people in the county. One is Mr. Patrick White, and the other is Jennifer Belpedio. Unfortunately, their last days are, I believe, December 2nd? MS. BELPEDIO: Correct. CHAIRMAN STRAIN: And we will lose their talents to help advise us at the planning commission, which they have been a great help to us, and I, for one, win sorely miss both of them. So thank you for the times that you have helped us, and, hopefully, wherever you decide to go, it's just as equally successful for you. MS. BELPEDIO: Thank you. Thank you for your wann wishes. Page 48 November 17, 2005 MR. WHITE: Thank you. COMMISSIONER ADELSTEIN: So say us all. CHAIRMAN STRAIN: Okay. The next petition is RZ-2005-AR-7825, Mandalay Place LLC. All those wishing to testify on this matter, please rise to be sworn in. (Speakers sworn.) COMMISSIONER ADELSTEIN: Mr. Chainnan. CHAIRMAN STRAIN: Any disclosures? COMMISSIONER ADELSTEIN: Not a disclosure. I have a problem. CHAIRMAN STRAIN: Okay. COMMISSIONER ADELSTEIN: Is it required that a hearing be given in a one-year period, inside one year, before it comes before the board? CHAIRMAN STRAIN: This is a matter for the county attorney? Or are you asking the applicant or the county attorney? COMMISSIONER ADELSTEIN: I'm asking the public -- the county attorney. Start that way. There has not been a public hearing on this for the past three years. The question in my mind is, the owners, who live in the area, and most of these things, should have a right to know, within one year, what's going to happen around their property. MS. BELPEDIO: Right. COMMISSIONER ADELSTEIN: My problem is, is it a rule that they must have a hearing within one year? If they do, this can't go forward. MS. BELPEDIO: I am not aware of that rule. However, that does not mean that there isn't a rule. MR. BELLOWS: For the record, Ray Bellows, the zoning manager. The land development code doesn't spell out a drop-dead deadline for neighborhood infonnation meetings. I think -- is that what you are referring to? Page 49 November 17,2005 COMMISSIONER ADELSTEIN: Okay. MR. BELLOWS: So -- but staff has adopted a policy, that if it goes beyond a year, that the applicant holds another neighborhood infonnation meeting and we're going to address that as an LDC amendment also. However, I'm looking at the application for F, and it looks like they held their meeting on September 1st, 2005. CHAIRMAN STRAIN: E has been continued. We're on F. COMMISSIONER ADELSTEIN: Okay. I'm sorry. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Disclosures? That's where I was going next. Let's go to disclosures. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: I just want to disclose that I was sent an E-mail from staff, and I could not open the attachment. CHAIRMAN STRAIN: Okay. Is there any other disclosures? Hearing none, we'll move forward. Mr. Volpe. Mr. Chainnan, members of the commission, for the record, my name is Michael Volpe. I'm with the law finn of Robins, Kaplan, Miller and Cirici. I'm here today representing the petitioner, Mandalay Place LLC. It's a limited liability company. The managing member of the limited liability company is Mr. Ted Mahoney. Ted Mahoney is with us this morning. Also accompanying me is Gary Butler, who is the engineer on the proj ect. I would like to, if I could, Mr. Bellows, there is, in your agenda package, a map which shows the location of the subject property. This is -- property is located on Bailey Lane, and Mandalay Place LLC is the owner of seven and a half acres of -- the two and a half acre parcel to the south and the two and a half acre parcel to the west. Currently, our underlying zoning, as is indicated in the map, is Page 50 November 17, 2005 RSF-5, with a conditional use for the development of approximate-- not approximately -- the development of 24 single-family residential units. The petition today, which is before you, concerns only the two and a half acres, which has the cross-hatching, which is the request which is before the board, is a request to rezone that two and a half acres to RSF-5(3). The three will be the number of units that can be developed on that two and a half acres. The three acre -- the three units per acre is consistent with your growth management plan. The seven and a half acres are under common ownership, and as is indicated in your staffreport, Mr. Mahoney, Mandalay Place, has submitted, in April of this year, a plat approval, subdivision plat approval for the entire seven and a half acres that presently is under review by your staff. The plat, which is proposed for the entire seven and a half acres, would allow for the development of a total of -- give me just a second, I'm sorry -- a total of 20 -- a total of 22 single-family residences. I apologize. Twenty-two single-family residences spread over the seven and a half acres. The staff has reviewed this petition and has found that it is consistent with your growth management plan and your land development code. It has also found that all of the criteria that are necessary in order for this commission to approve the request for the rezone have been satisfied. The -- we did have our neighborhood meeting on September 3rd, and there were a number of people who were in attendance at that meeting. The issues that came up, in particular, were addressed from the Hawks Ridge residents, which is the Hawks Ridge PUD, which is immediately to the north of the subject property. In connection with the plat approval, which is currently under review by your staff, one of the issues that we have addressed and has Page 51 November 17,2005 been discussed and prepared to do is -- concerns the buffering, the buffering along, in particular, the northern boundary of the subject property. The staff indicates, in its staff report, that the type A buffer is the buffer which would be required in this particular zoning district. Mr. Mahoney, in his discussions with your staff, has discussed enhancing the landscape buffering so that it would be a type B landscape buffer, which would include a number of canopied trees on 25- foot centers that would be 14 to 24 feet in height, and also interdisbursed would be cabbage palms, which would be at 14 feet. That landscape buffer would be around the perimeter of the property, but in particular, along the northern property line, which would provide, in addition to the setbacks, the visuals from the PUD and the residents who reside in the Hawks Ridge PUD, the buffer from the development which is proposed on the subject property. The overall density, as I've indicated, would be three units an acre. And the access to the property would be off of Bailey Lane. We think that this is an improvement over what currently is pennitted on the two, two and a half acre parcels. This would be an upscale residential community. It would be and is compatible with the surrounding neighborhood, and if there are any questions, I would be happy to entertain them. CHAIRMAN STRAIN: Commissioner Murray. COMMISSIONER MURRAY: The Hawks Ridge PUD, to the south side, is that already walled? Does that have a -- is that a gated community? Is that walled in any way? MR. VOLPE: It is a gated community, but to the best of my knowledge, there is no perimeter wall along the southern boundary of the Hawks Ridge PUD. COMMISSIONER MURRAY: So they use landscaping as their means of maintaining enclosure? MR. VOLPE: That's correct. Yes, sir. COMMISSIONER MURRAY: Thank you. Page 52 November 17,2005 CHAIRMAN STRAIN: Any other questions by commission members? Mr. Volpe, you had indicated, I believe, that you have a type B landscape buffer. And was it going to be around, is that all the properties, all the sides of the property? MR. VOLPE: That's the discussion, Mr. Strain, that has actually taken place with the staff during the review process. CHAIRMAN STRAIN: So in addition to just the north property line adjacent to Hawks Nest, you are going to buffer the entire property -- MR. VOLPE: That's correct, yes, sir. CHAIRMAN STRAIN: -- with a type B buffer? MR. VOLPE: Correct. CHAIRMAN STRAIN: Okay. Do you have any objection to limiting the height of your units along the north property line adjacent to Hawks Nest to the same limitation that Hawks Nest has on the heights of their buildings for those areas contiguous to them? MR. VOLPE: There is no restriction, Mr. Strain, as to the height of their buildings along their northern -- I'm sorry, their southern property line. The letter that you, I believe, may have received this morning, talks about the limitations with respect to the northern property line. It doesn't address the southern property line. So along the southern property line, there is no restriction in the Hawks Ridge PUD that would restrict those residences from going to two stories. They may be one story now, but in the current market, with the people doing remodeling, there is nothing within the Hawks Ridge PUD that would restrict those to a single-story restructure. CHAIRMAN STRAIN: Then I guess I need to rephrase my question to you. Do you have any obj ection to restricting the lots contiguous to the Hawks Ridge project on your property to a single-story structure? Page 53 November 17, 2005 MR. VOLPE: We do. And in part, I guess the explanation is there is no restriction, as I indicated, along the southern property line, but in addition, we have felt, and understanding what is pennitted in the current zoning district, this is RSF-5(3), also what height limitations apply to the estates type zoning, which we believe could go to a height of 35 feet in the estates zoning. Mr. Butler can address that. If there is a specific question, perhaps the staff can, as to the height within the estates zoning. CHAIRMAN STRAIN: Well, I know what the height is. I live in the estates myself, and that is Gary Butler. He shaved. I didn't recognize him. I thought it was -- MR. VOLPE: Mr. Strain, what is the height restrictions within -- CHAIRMAN STRAIN: In my area, it's 35 feet. MR. VOLPE: Okay. So I think it is 35 feet as well. This is estates zoning. CHAIRMAN STRAIN: Right. MR. VOLPE: So we do -- we feel we understand the issue. We feel that by enhancing the buffering around the perimeter of the property and along the northern boundary line of the subj ect property, that concerns about the height -- the type B buffer, I said to you that the height of those trees would be 11 to 24 feet. And the cabbage palms would be 14 feet. I think that visually and for the concerns of privacy, that the landscape buffer will address some of the concerns or should address the concerns of those -- those -- I think there are three residences. This aerial will show, you can see the Hawks Ridge PUD to the north, and you can see there are three homes which abut the northern property line of the subj ect property. Two of those, those two, and then there is a third, which is on the cul-de-sac, that you can see the distance between that individual's home. He also owns that area, that buffered lot, so there -- in tenns of the buffering between that residence and the northern property line. Page 54 November 17,2005 So there are two single-family residences that are immediately adjacent to the northern property line of the subject property. CHAIRMAN STRAIN: This is straight zoning, not a PUD? MR. VOLPE: That's correct. CHAIRMAN STRAIN: So some of the things that we nonnally would find in a PUD, obviously, we don't find in a straight zoning. What is the square footage that you're anticipating for your units, minimum? MR. VOLPE: The -- approximately 3,000 square feet under air. CHAIRMAN STRAIN: Okay. Do you know, in the public meeting, the issue of this limitation to height was brought up and the developer responded that he stated that he would work together with the neighborhood, but did not offer any specific commitment. So contrary to that statement, now his commitment is he's not going to work with the neighborhood on the height? MR. VOLPE: No. I didn't mean to imply that. If I did, I apologize. We have worked and we have had these discussions with the neighborhood. The landscaping commitment, which is not required, is the commitment that the developer is prepared to make in order to address those concerns. So the type A buffer, the type B buffer is what has been discussed with your staff, and subject to Mr. Mahoney's approval, as a part of this petition process, we can perhaps obtain that commitment to the type B buffer along the perimeter -- around the perimeter of the property. CHAIRMAN STRAIN: Okay. So the landscaping that you are volunteering to add was your mitigation for the height considerations that the developer -- MR. VOLPE: I think so, Mr. Strain, along with the other considerations as to, again, what is allowed within the zoning currently, what is pennitted along their boundary line, and we do believe -- and Mr. Butler, from a technical perspective, can perhaps Page 55 November 17, 2005 address if there are some additional concerns about what the effect of that buffer would be in tenns of the privacy issues and the buffering. CHAIRMAN STRAIN: Okay. That's all of the questions I have. Thank you. Mr. Tuff. COMMISSIONER TUFF: I just was curious, you know, the reason they want that is so that the people sitting up on the next level aren't looking down at their back yard and I'm not sure what a 14 foot buffer would do to that. It was -- seemed the whole issue -- MR. VOLPE: Right. Well, two issues, if I have understood the question. It's 14 to 24 feet would be the height of the trees, and the second issue is that these aren't multi-family units. These are single- family residences. So what you're going to have, in all likelihood, are bedrooms on the second floor. So I, mean, the privacy, I understand, but it isn't -- again, we have to keep in mind that it isn't multi-family, it is single- family residences. So you are not going to have, as they do within the Hawks Ridge PUD, there is a -- the colony portion of the Hawks Ridge PUD. Those are coach homes. They are two stories. Likewise to the north in the Pine Woods subdivision, those multi-family units where that issue has come up. Again, these are single-family residences. This is a single-family residential neighborhood. Does that answer your question, Mr. Tuff? CHAIRMAN STRAIN: Mr. Adelstein. COMMISSIONER ADELSTEIN: The total number of units are going to be 22 for the whole project? MR. VOLPE: Correct. COMMISSIONER ADELSTEIN: Okay. CHAIRMAN STRAIN: No other questions of the applicant. Thank you, Mike. We'll hear from staffnow. Page 56 November 17,2005 MS. DESELEM: Good morning. For the record, my name is Kay Deselem. I'm a principal planner with zoning and land development review, and I'm here to present the staff position to you. Regarding the letter that Mr. Schiffer did not get, if I may, and if anyone else did not get the letter, okay, it is a letter from Bruce Tyson, and I will give that to everyone, and I could give a copy to the court reporter if you will so allow. CHAIRMAN STRAIN: Yes, ma'am. Obviously, we -- I have received it, because it came in E-mail. It isn't in our packet, so we need to make a motion if we wish to accept this into evidence. COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein. Seconded by? COMMISSIONER MURRAY: Murray. CHAIRMAN STRAIN: Commissioner Murray. All those in favor to accept this into evidence, signify saying aye. Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (N 0 response.) CHAIRMAN STRAIN: Motion passes. MS. DESELEM: And I know Mr. Tyson is here, and I think he's going to speak on it anyway, and I apologize. It was just received after the packets went out. So I wanted to get it to you if we could. In the staff report, I won't belabor the issues other than to say that we have provided a description of what's being proposed, and we have Page 57 '·"····.........'_._e·"','em November 17,2005 provided an analysis of the consistency with the growth management plan, and we are recommending that it be found consistent with all elements that are applicable of the growth management plan, including transportation and the future land use element, and we did find that it was consistent with the overall plan and compatible as in required by policy 5.4, which brings me to one issue in the findings of fact that needs to be corrected. The last finding of fact and the rezone finding of fact, item number 17 has a typo. It says that it's inconsistent with the transportation element, and that is, in fact, incorrect. It is consistent with the transportation element. So I wanted to correct that for you. And another error that needs to be corrected, prior to the meeting, I did distribute to you corrected copy of the table that is in the staff report entitled excerpts from table of setbacks, et cetera, and I did provide a copy of that to the court reporter and to the county attorney's office, and if you would allow that to be accepted into the record. CHAIRMAN STRAIN: Yes, ma'am. We got that a little earlier, so I -- actually, I missed it. Is there a motion to accept this into evidence? COMMISSIONER TUFF: So moved. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Motion made by Commissioner Tuff, seconded by Mr. Murray. Any discussion? All those in favor, signify by saying aye. Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. Page 58 November 17,2005 CHAIRMAN STRAIN: Opposed? (N 0 response.) CHAIRMAN STRAIN: None. Motion passes. MS. DESELEM: I would note for the record, that the reference to the conditional use to the south has expired, as far as I can tell. It's no longer in effect. What you have now is just the straight zoning that remains, and I would also note that I'm not exactly certain what is being proposed as far as the buffer condition. This has not been discussed with staff. I heard it at the same time you did. I don't know exactly, nor do I exactly understand the buffer condition that's being proposed. I've heard 14 foot, I've heard 11 foot, 24 foot. All I'm sure is he's committed to putting it along the entire perimeter of the property, but I don't know exactly what it is. So I would ask if you include that in any motion, that you clarify it so staff knows what it is. And other than that, I don't have anything. If you have any questions, I would be happy to answer them. CHAIRMAN STRAIN: Commissioner Caron? COMMISSIONER CARON: You said the conditional use had expired. So the underlying zoning is RSF-5, correct? MS. DESELEM: That's correct. CHAIRMAN STRAIN: Okay. We will certainly go back with Mr. Volpe in a minute and revisit the buffer, because that does need to be clarified. Is there any other questions of staff before we hear public speakers? Mike, if we could kind of get this defined as far as buffer goes, that would be helpful. MR. VOLPE: Yes, Mr. Strain. F or the record, the conditional use, based upon the report and documentation we have obtained from the staff has not expired. It is vested, and we have a letter addressed to the applicant, to the petitioner, from your planning staff that advises us that the conditional Page 59 November 17,2005 use for the five acres is, in fact, vested and still existing. So I'm not sure where that came from. CHAIRMAN STRAIN: I would like to enter the letter you have into the record. MR. VOLPE: Certainly. CHAIRMAN STRAIN: So that it's clear. MR. VOLPE: Okay. This is a letter, the -- of October 20th of 2004, and it's from Stan Chrzanowski, as the manager, and it does indicate that the -- this conditional use for that five acres is still existing and is vested. CHAIRMAN STRAIN: Is that a copy the court reporter can have? UNIDENTIFIED SPEAKER: I can get a copy of it after we get it. CHAIRMAN STRAIN: Is it short, Mike? If you can, just read it in the record and we'll -- just with a date, and we'll just get it on that way. MR. VOLPE: Certainly. This is a letter addressed to Steve Forays. It references conditional use CU94-20, rezone R-94-6. In response to your letter of October 18th, 2004 requesting a clarification of engineering review service's position on existing conditional use CU94-20 and rezone R-94-6, we advise you of the following. As per Bob Mulhere's letter of March 23, 1999, under the approved unexpired CU94- 20, and corresponding extensions, as well as the current RSF - 5 zoning, the subject property is zoned for development of no more than 24 residential cluster homes, subject to the conditions imposed by the conditional use approval. Based upon the approved cross-section incorporated as a part of the conditional use approval, see resolution 95-10 and attachment thereto, the dimensions and specified construction parameters for the roadways, cul-de-sacs and 30-foot road right-of-way shown for ingress and egress of the north parcel are acceptable. Recognizing that this file includes three letters expressing Page 60 November 17, 2005 concern about private easement use, comma, however, no statement of the appropriateness or not of the use of any easements in which these facilities may be constructed should be inferred from this letter. The required water quality requirements have not changed since approval of this conditional use, but with regards to water quality, the current standard is to design for attenuation of the 25 year, slash, three day stonn. Please remember the engineering review has no control over what development standards are applied as a part of environmental, landscaping and fire review requirements, and that such standards may have changed. Lastly, please be advised that those standards must be met. A copy of this letter was sent to Patrick White, assistant county attorney, to Thomas Kuck, director of engineering services, and one to the file. CHAIRMAN STRAIN: Thank you. And that's signed by the acting manager, Stan Chrzanowski? MR. VOLPE: That's correct. CHAIRMAN STRAIN: I know this is not part of -- that piece of property is to the south of this application. But I think the issue here is that you are, I guess, using the density in the overall -- in the overall proj ect; is that right? MR. VOLPE: Well, actually, the effect of this would be to reduce. If we -- CHAIRMAN STRAIN: That's what I thought. MR. VOLPE: It would allow for 31, as your staff points out. The development that is proposed and the plat that has been submitted for your staff review shows 22 over the entire seven and a half acres. With respect to the issues of the buffer, Mr. Strain. CHAIRMAN STRAIN: Yes. MR. VOLPE: And I apologize. Gary Butler has been carrying on the discussions with the staff, and if I've misstated the extent of those questions or discussions about the landscape buffer, I apologize. Page 61 November 17,2005 A type A buffer is required. Since that neighborhood meeting, we have had discussions amongst ourselves. I believe some of those discussions have occurred with some, maybe not all of the people, residents who were in attendance at our neighborhood meeting, and the discussions have been for a type B buffer. The type B buffer, and this is perhaps where Mr. Butler can elaborate just a bit more, would show that the height would be from 14 to 24 feet. And they would be on 25-foot centers, as opposed to 30. In addition, there would be canopy trees, live oaks, along the northern boundary line that would be a minimum of 14 feet in height. So, Mr. Strain, I'm not sure if that's responsive to -- I mean, that's what the type B buffer would include, and we're prepared to discuss with you and the members of your commission the commitment as to the type of buffering that would be included in this project. CHAIRMAN STRAIN: Let me read back to you what I think we're saying, so that we can get it in the fonnat of a stipulation if this is to move forward. MR. VOLPE: Fine. CHAIRMAN STRAIN: A type B landscape buffer, modified with the additional elements, 14 to 24- foot trees at 25 feet on center, and canopy trees being live oaks at 14 foot in height minimum along the north boundary line. MR. VOLPE: Gary, that is -- that is what we would -- that is what I've said to you, yes, Mr. Strain. CHAIRMAN STRAIN: Now, just for further clarification, the type B, modified as discussed, goes along the entire property, but in particular along that north boundary line, you are focussing on live oaks, at least 14 feet in height, in those locations, and whatever type B can be flexible with the remainder of the property. MR. VOLPE: That's correct. And as well, the canopies and the cabbage palms along the northern boundary line. MR. BELLOWS: For the record, may we have a list of these Page 62 November 17, 2005 buffers to be in installed as part of the motion? CHAIRMAN STRAIN: I think I would like a recommendation from staff. How about before the first CO of the proj ect? Is that reasonable, or at the time the development goes in, one or the other. MS. DESELEM: For the record, again, Kay Deselem. I would suggest that, yeah, before the first CO is issued. That way, if the concern is people looking into somebody else's house or something of that nature, then it should affect it, because nobody would be living there until that time. I would ask that you clarify -- I'm sorry. I was involved in another conversation. I don't think you clarified what these plantings are to be at time of planting so when we try to do the review, we know that they meet the requirement. I heard something about 14 to 24 feet. CHAIRMAN STRAIN: Well, that's at time of planting. I mean, that's how -- I couldn't -- otherwise, you can buy a three-foot tree and sit back and wait 15 years. That isn't what the intent is here today. So, I mean, at time of planting, my assumption was the heights and everything specified was at time of planting. MR. VOLPE: Yes, that's correct. MS. DESELEM: Maybe I'm slow, but I see a range of 14 to 24 feet. CHAIRMAN STRAIN: Right. If you feel this needs to be modified, it was your suggestion to get this clarified. Please help us get this clarified. MS. DESELEM: Are they supposed to all be 14 feet when they are planted or are they staggered, every other one is 14 and the next one is 24 feet? I'm just confused. CHAIRMAN STRAIN: When you go out and buy a tree, you may not find that they are all going to be purchased at the same height. They may have varying heights when they get actually placed in the ground, and I think what they are trying to say is that they win end up somewhere, all of them, between 14 and 24 feet. Page 63 November 17,2005 MR. BELLOWS: How about a minimum of 14 feet? COMMISSIONER CARON: Something measurable that we can make sure that it meets the intent of the condition. Thank you. CHAIRMAN STRAIN: Okay. MR. VOLPE: And in particular, just for clarification, it's the cabbage palms that would be a minimum of 14 feet, 14 to 24 feet on the cabbage palms, and then a minimum of 14 feet on the canopy trees. CHAIRMAN STRAIN: Well, okay, minimum 14 feet. MR. VOLPE: I guess what I'm -- it ends up in the same place. I just wanted the clarification that I think your staff was requesting. It is -- there could be larger cabbage palms. They could be closer to 24 feet. CHAIRMAN STRAIN: Just a minimum of 14. MR. VOLPE: Minimum of 14 feet, you're correct. CHAIRMAN STRAIN: If they are more than that, more power to you. Okay. Now, let's proceed with the rest. Any other questions of -- Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Excuse me, sir. CHAIRMAN STRAIN: Questions, Mr. Volpe. COMMISSIONER VIGLIOTTI: Mr. Volpe, would your client consider building single family -- I'm sorry, single-story product alone the northern edge where it abuts Hawks Ridge and two story elsewhere? MR. VOLPE: I can defer to my client, but our discussions have been that we would not -- given the building pad, given the current market in tenns of families moving into residences, and also in terms of open space, that we feel that having a two-story home at a height of 25 feet is compatible with the surrounding neighborhood. COMMISSIONER VIGLIOTTI: Thank you. Page 64 November 17, 2005 MR. MAHONEY: Good morning. For the record, my name is Ted Mahoney, and that was a very good question as far as the height limitation. I have built over 500 homes. I'm from the Boston area, and quite honestly, I -- just requiring one story, you're forcing someone to build the entire envelope, the zoning envelope of the lot, and I believe that is a huge mistake. Today, most people who reside in a first-class residential neighborhood like this would like to have a master bedroom on the first floor, have large living area on the first floor, and 99 percent of the activity in the home would be on the first floor. On the second floor, and you talked about the neighborhood meeting. We had a great meeting. We had 40 people there. There was a lot of participation, a lot of give and take. And the two issues that I took away were buffering and privacy. So I met with Mr. Volpe and my professional staff. Christian Andrea was my landscape architect. And we felt, as a team, for the neighborhood, for the extra buffering, that was a very key issue. So we have agreed to take that additional step and go to B zoning from A, but as far as the homes, I think it would be a huge mistake for this board and Collier County to set a precedent of limiting to one story. You are forcing someone -- I was president of the Home Builders of Greater Boston, only two-year president, I've served six years on the National Association of Home Builders and executive director, and to force someone to build that entire envelope, I think, is a huge mistake. Now, this zoning, as you know, allows 35 feet, and 35 feet is probably excessive. I would be willing to go to two stories and reduce down from the 35 feet to two stories, rather than possibly three, but that is my -- and I have been doing this a long time, and I'm being sincere about this. You are forcing someone to build that entire zoning envelope. Page 65 November 17,2005 If you see some of the new construction that's coming to Collier County, the first floor, like I said, has a huge master bedroom, huge living area. There is only one bedroom on the first floor. It would be a very rare occasion that someone would have a lot of use that would create privacy concerns for neighbors. Like I said, it would be two or three bedrooms on the second floor, and that would be it. So I would really appreciate it if you would consider reducing the height down to two stories and allowing, you know, that type of construction today. I hope that answers your question. COMMISSIONER VIGLIOTTI: Yes, it does. MR. MAHONEY: Thank you. CHAIRMAN STRAIN: Sir, what is the price range of the homes that you are going to be building there? MR. MAHONEY: I truthfully don't know. All I can tell you is it will be compatible with Hawks Ridge, and I believe Hawks Ridge is between eight fifty and a million two. Is that about right, Bruce? Yes. So it would be comparable with the neighborhood that was there. When I did see this piece of land, I did buy the first properties, and it was zoned for 24 lots. There were 12 lots in the back and 12 lots in the front, and that's why I decided to pick up this other piece and really turn this into a first-class development, and as your staff has noted, it could accommodate up to 31 units, but I did hire Mr. Butler, who has been here for many years, Mr. Volpe, who has been here for many years, and Christian Andrea, who is a well-respected landscape architect, to create what I feel is a very appropriate use for these three -- even though we're here for the one parcel. It really has be taken a look at in the whole, and I think you'll find, from 24 small houses, by picking up an extra piece, I've reduced it down to 22. CHAIRMAN STRAIN: Sir, how do -- if you're eight fifty to a million, or thereabouts, how many of those are affordable? Or in Collier County, they all may be. Page 66 November 17,2005 MR. MAHONEY: Unfortunately, as opposed to Massachusetts, we have chapter 40B, which includes 25 percent affordable in our developments, and I have built one in Westwood. At the time, Governor Cellucci, it was the 30-year history of affordable housing in Massachusetts. In Massachusetts, we have the same affordable housing problem that is down here, and it was one of the top five developments ever built under our chapter 40B. So I have built quite a bit of affordable housing. I'm involved in the National Housing Endowment. So I do take affordable housing very seriously. In this development, of course, it's a conventional piece. It's-- you know, a lot of times, if you have a 50 or 60-acre piece, that allows you to address a lot more affordability issues than a smaller piece of land. CHAIRMAN STRAIN: So at this point, you are not going to be doing anything for the affordable housing cause in this county in regards to assistance on this proj ect? MR. MAHONEY: No. CHAIRMAN STRAIN: Thank you. Are there any other questions of the applicant? COMMISSIONER SCHIFFER: No. I would just like to kind of agree with what he said, Bob. I mean, this property is going to have 20-foot rear setbacks. We have the additional 14-foot buffer. The other property has their setbacks. These buildings, even if two story, are going to be pretty far away from the neighbors. CHAIRMAN STRAIN: Any other comments? Thank you, sir. MR. MAHONEY: Thank you. CHAIRMAN STRAIN: Kay, do you have any -- are you clarified enough on this buffer so we're in good shape there? MS. DESELEM: I think so, and if not, I can work it out between Page 67 November 17,2005 what your actual recommendation might be and the applicant's presentation. I did want to make it clear, when they are talking about densities, as stated in the staff report, they are using the tenn provided for, and provided for isn't exactly correct. They are eligible for, but there is no guarantee of any kind of a zoning or a density as they go through the process. As is explained in the staff report, there's a lot of other factors that enter into it. So they might not even be able to get what it is you're proposing, but that, of course, is for the overall three tracts, not just the subject tract. It would be limited pursuant to the zoning that's adopted by the board for this parcel. CHAIRMAN STRAIN: Thank you. Ray, do we have any public speakers? MR. BELLOWS: Yes, we have two registered speakers, Bruce Tyson, followed by, and pardon me if I don't pronounce this correctly, Jano Janoyan. MR. TYSON: Good morning, Commissioners. Bruce Tyson. I'm a resident of Hawks Ridge, and I am the chair of the design review board within the Hawks Ridge PUD. You've -- the letter that I had sent kind of outlines exactly what the situation is, what we're concerned about, the fact that Pine Woods, which is a single-family subdivision to our north, it is not a PUD, it is a subdivision. When the Hawks Ridge PUD was done, people from Pine Woods, I would take it, came in and made a comment about the fact of let's please, of those 14 or 15 lots that exist along the north line, you don't see it on this plan unless -- no, you don't see it on this plan, about 14 or 15 lots and homes that had been constructed along the north line where Hawks Ridge meets Pine Woods, and consequently, at those points, we have all single-family homes, because that was a requirement that was placed into the Hawks Ridge PUD. What we're simply asking for, in this case, of where we have Page 68 November 17, 2005 these properties that abut the single-family dwellings and the single-story dwellings in Hawks Ridge, that they respect that, and they, in fact, wind up having a similar height. What you have in the table or when the table was up, was an indication that the setback of the units was 20 feet. We don't -- I don't know what accessory structures are, and if -- what typically happens with two-story structures, and I hope that -- I hope I don't hear the word, three story, again anywhere in this conversation, but anyway, with two-story structures, that I don't know what the setback is in the estates or what they are doing here when it comes to pool screens and accessory structures. I believe they may be able to come within ten feet of a line, which winds up being a relatively significant impact. So consequently, wherever you wind up having this type of a situation of where you have two-story structures, you could also have two-story pool screens that would literally be on top of the line, and I'm not exactly certain who made the comment, but it's almost like the buzzard that sits there and lurches over your property and looks down. The other thing about the -- well, I certainly applaud the applicant for doing an enhanced buffer. We've all seen exactly what happens in a pretty significant wind stonn, and when you have an RSF property, not a PUD, there is no, to my knowledge, method by which we can dictate that that buffer be maintained. In other words, you are not dealing with a PUD, you are not dealing with common lands. You are simply dealing with somebody's private property, and I don't know exactly how it works to the point of where that landscape buffer is maintained, especially if we have some wind damage, and it needs to be taken care of. I think that's basically what we were looking at. I would look at this, not so much as an issue of anything other than compatibility, and we're only talking about three lots in Hawks Ridge. I'm not exactly certain how many lots this affects or would affect in this other proj ect, Page 69 November 17, 2005 but I think, from that standpoint, this is something -- and if we look at the map that was in here -- Ray, if you could pull that down -- the homes in Hawks Ridge have a minimum setback of 25 feet; they -- the pool screens, as accessory structures, can go within 15 feet. They are all single story, and to this date, they are probably pretty much already masked with vegetation as well from the buffer that exists around Hawks Ridge. So we would ask, in your deliberations of this, that you give some great consideration to that compatibility issue for these three dwellings that we have in Hawks Ridge. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Would there be an association to this community? MR. TYSON: I don't know. COMMISSIONER MURRAY: If there's an association, wouldn't they have responsibility for the maintenance of landscaping and buffers? MR. TYSON: That's a question for them. COMMISSIONER MURRAY: That's a question and I think it needs to be answered. MS. BELPEDIO: Mr. Chainnan. COMMISSIONER MURRAY: Because you've made the statement that you don't -- MR. TYSON: I don't believe, when you do a single-family situation like this, if there's a need for an association, I don't know if there's a planned -- if there is, then there is a vehicle by which this can be done. COMMISSIONER MURRAY: I just wanted to have that clear in my mind. CHAIRMAN STRAIN: Jennifer, you had a comment you needed to make? MS. BELPEDIO: Yes. I happen to also be the attorney that had Page 70 November 17,2005 reviewed this subdivision plat, and also review other subdivision plats. There is a requirement that there be a homeowners' association and that it be incorporated at the time of platting. There will be a landscape buffer easement area depicted on the plat with responsibility for maintenance to that homeowners' association. That's a requirement, and that will not be signed for legal sufficiency without it. CHAIRMAN STRAIN: Thank you. Are there any other questions for Mr. Tyson? Mr. Schiffer. COMMISSIONER SCHIFFER: The residences there, can they be remodeled to two story? Are they allowed to be two story now? MR. TYSON: Yes. CHAIRMAN STRAIN: Okay. MR. TYSON: But that's the same story as Pine Woods. Pine Woods could come in and anybody could do anything in there as well. Weare forced right now, unless we come back and amend the PUD, and again, there is no intention to do that, because there is no reason, at this point in time, but that's strictly along the north line, has nothing to do with what's going on along the south line. COMMISSIONER SCHIFFER: But when you got the PUD, these properties to the south never wanted to put that imposition on you. MR. TYSON: I'm sorry? COMMISSIONER SCHIFFER: The other owners of these properties, when you were getting your PUD, they didn't put that imposition on you to be only one story. MR. TYSON: I don't think there was anything when Hawks Ridge was done. As a matter of fact, you can look at it even on the map today. There is really no development that abuts Hawks Ridge on the south line. There wasn't prior to Hawks Ridge being approved. CHAIRMAN STRAIN: Thank you. Any other questions? Page 71 November 17,2005 Ray, next speaker, please. MR. BELLOWS: The last speaker, Jano Janoyan. MR. JANOY AN: My name is Jano Janoyan. I live -- a residence on Swainson Run. My comments will be brief, as most were expressed by Mr. Tyson. Obviously, as a resident in one of the properties in question, it would be the second one, probably the middle property as depicted on that map, I obviously have concerns, my family has concerns for the type of property that would go in. When we bought both our lot and built our house seven years ago, we felt we did a fair amount of due diligence in detennining what could possibly be built here, and obviously, this was not something that was zoned for this area. In fact, you can see in that picture, it probably must have been taken awhile ago, there was an existing residence there that met whatever the zoning, the estate larger lot zoning requirements that was there. That house has since been bulldozed, I imagine, by the petitioner. So obviously, this is somewhat redundant, but we have concerns for what type of property goes in there. It certainly is a much higher density development than Hawks Ridge. They are probably talking about multi-story. I don't think it's particularly generous to volunteer not to build three-story houses on very, very small lots. I mean, these are really much -- I don't think our lots at 90 by 180 to be particularly large, and these are significantly smaller. Again, I'm not an expert in zoning, but as I understand it, in theory, whether they limit it to two-story houses, they could still build to 35 feet, if I understand it, and as Mr. Tyson said, with a pool cage on the end of that, a 14- foot cabbage palm is going to do little to obscure a pool cage on a 30, 35-foot house, 15 feet back. So, obviously, my concern, as a resident, would be property values and standard of living, quality of life of having these structures, Page 72 November 17,2005 forgetting the building process as it goes on, but the buffering and the process of limiting what -- I would think -- I would think a concession would be to limit them, if not to one story, to at least a reasonable height. I would think it would only call upon a couple of their lots in question to pacify the number of residences that are on the Hawks Ridge side as well. I think that's about my only comments. CHAIRMAN STRAIN: Thank you. Mr. Murray. COMMISSIONER MURRAY: I have a question for you, sir. What is the most offensive to you in this, if you would have seen it built? Would it be the double high pool cage, would it be the fact that it's 35 feet? Would 25 feet be something that would become acceptable to you? MR. JANOIAN: Well, again, it's hard to say from -- in tenns of perspective as far as how far back it is, what type of buffering this is. I certainly think a 35-foot structure would be pretty offensive. Again, I'm not an engineer, so I couldn't put an exact perspective on what 25 feet actually represents in tenns of -- I don't know how high our house is. I know that in Hawks Ridge, there's probably only two houses that are two stories. I would think any two-story house that would be probably what they would want to build would probably be objectionable with an attached pool cage. I don't see how you can build at least 3,000 feet under air without building two-story houses is probably the conundrum here that they are having on the size lots that they have. I honestly couldn't say a particular height would or wouldn't be offensive. I think, most likely, what any developer would want to build would be two stories that would have an attached pool cage would probably be unable to be obscured by any 14- foot buffer or 14- foot tree line. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Thank you, sir. Page 73 November 17,2005 Ray, are there any other public speakers? MR. BELLOWS: No, sir. CHAIRMAN STRAIN: Mr. Mahoney, could we ask -- I have three questions that have come up as a result of these discussions I'd like to ask of you. First of all, affordable house, obviously, your price range is way above affordable housing. Some other developers that have been in front of this commission have contributed voluntarily to a thousand dollars per unit at closing to help the affordable housing to go into the county trust fund and to be placed against any future credit for any linkage fees that may develop in the -- MR. MAHONEY: Could you tell me what the county does with the money, because a lot of times, I've helped out various groups and then the money never gets spent for the right cause. CHAIRMAN STRAIN: We have an affordable housing program in the county run by a division of the county, Connac Giblins. They take the money and use it for assistance in acquiring either down payments, impact fee deferrals or land purchases for building affordable housing. MR. MAHONEY: Okay. I would have no problem with that. CHAIRMAN STRAIN: Okay. The accessory uses in your proj ect have come into question in regards to their distance from the rear. MR. MAHONEY: I believe it's 20 feet. Can I get my expert to answer that question for you? CHAIRMAN STRAIN: Sure. Now that I recognize him. MR. BUTLER: Jerry Butler, representing the petitioner. We are going to hold the same setback for our accessory structures as we are for the primary structure, which is 20 feet, and that's mandated by the type B buffer with a swale. So we will not be building within 20 feet of the property line. CHAIRMAN STRAIN: And then my one last, final question Page 74 November 17,2005 that I've checked here. The maximum height, you said you were wining to limit it to two stories. I found that, many times, two stories can be, in someone's eyes, an eight-foot story or a 20-foot story. So why don't we look at the actual height that you are anticipating that would result from the two-story structure. Do you know what that would be? MR. MAHONEY: The answer is 25. CHAIRMAN STRAIN: Twenty-five feet. Thank you, sir. Are there any other questions? Mr. Murray. COMMISSIONER MURRAY: One other thing. It was expressed, and I understand it, a pool cage, double height, would you be willing to restrict the pool cage to the first story height? MR. MAHONEY: What is the code requirement, because, you know, as Mr. -- would it be 20 feet, would it be eight? I would rather have a -- do you know? MR. VOLPE: No. MR. BELLOWS: For the record, Ray Bellows. It's the same as the principal structure. COMMISSIONER MURRAY: Same as the principal structure is interpretable to mean -- MR. BELLOWS: 35 feet. COMMISSIONER MURRAY: -- the total footage, but they could agree to a reduction to the first story. There is nothing to preclude that. Is that true? MR. BELLOWS: If the petitioner wishes to offer that. COMMISSIONER MURRAY: Would the petitioner consider-- that appears to be an offensive issue, and I've seen these type structures from a distance, and I can understand that. MR. MAHONEY: I drove down -- the name of the street escapes me, the other day, but the thing was so high that it really didn't look compatible with the home. I just don't know if it's like 20 feet or 18. I'm just -- because, you know, you have to have some height over Page 75 November 17, 2005 the pool, obviously. And I don't want to get -- I don't want it too high, but I don't want it too low at the same time. Do they go over that 25 feet or do they stay -- CHAIRMAN STRAIN: You won't be able to carry on a conversation with someone. The court reporter can't take the notes down. I'm sorry. If you want to take a minute and confer with them. MR. MAHONEY: I don't --like I said, I'm willing to work, but I don't want to commit to something unless I have an intelligent -- CHAIRMAN STRAIN: Make it real brief, please. Thank you. Ray, the 20- foot setback for the principal and accessory is something, if we stipulate it, it's not a problem for the district? MR. BELLOWS: It's a straight zoned project, and what happens is if there's special conditions or stipulations added, it will have to be reflected in the zoning ordinance so it will show up on the zoning map as this particular RSF -5 district has additional stipulations, so anybody checking zoning will know that there are -- additional stipulations should be enforced. COMMISSIONER SCHIFFER: Mark, I would -- COMMISSIONER VIGLIOTTI: Would this have to go in as deed restriction in case someone else down the road wanted to do it? MR. BELLOWS: That's one method of assuring it. The zoning map, as I said, win also have that reference to the ordinance containing the stipulation. CHAIRMAN STRAIN: It will be on the zoning map, Bob. When you plug in the zoning map, it will give you references to little numbers. If you go check down, it win give you a resolution or an ordinance that applies. Mr. Schiffer. COMMISSIONER SCHIFFER: Ray, on the same thing, just a little confusion. When they have the buffer, will that be outside or within the platted lot? In other words -- MR. BELLOWS: The landscape buffer? Page 76 November 17, 2005 COMMISSIONER SCHIFFER: Yes. The impression I'm getting is that -- maybe since Jennifer has seen the plat, it would show it. I get the impression we'll have a buffer around that. Within the buffer will be platting lots, thus, the rear setback will not be included in the buffer. Is that true or -- CHAIRMAN STRAIN: They can't include it on the landscape buffer with a structure, so they will be outside the 20- foot landscape buffer. COMMISSIONER SCHIFFER: Right. What I'm saying is that, let's take the perimeter lot, is there a buffer of 14 feet and then that 14- foot dimension within the property line is the start of the rear property line for the unit? MR. BELLOWS: My understanding is that most subdivisions, they have that as an easement, not a tract. MS. BELPEDIO: Right. MR. BELLOWS: So it would be an easement on the guy's rear yard. So it's within the 20- foot setback. COMMISSIONER SCHIFFER: But conceptually, his building could be six feet off the buffer with a 20- foot setback? MR. BELLOWS: Possibly. CHAIRMAN STRAIN: Okay. Yes, sir. Did you-- MR. MAHONEY: In concurrence with everyone, if I build a pool cage lower than the windows or even with the windows, I think I have to stipulate to the 25 feet to be fair to the architectural design of the home. COMMISSIONER MURRAY: 25 feet is to the base of the roof. Is that correct? Is that the way we interpret that? MR. MAHONEY: No, it's not. COMMISSIONER SCHIFFER: I would like to talk about the 25 feet, too, because I think you should be careful, because 25 feet would be to the midpoint of the slope roof. MR. BUTLER: Or to the top of a mansard roof which is more Page 77 November 17, 2005 common on pool decks. CHAIRMAN STRAIN: You guys, before you -- first of all, when you come back to the speaker, reidentify yourself for the court reporter. And I have to ask the commission, one at a time. COMMISSIONER MURRAY: I'll defer to Mr. -- CHAIRMAN STRAIN: Now, Mr. Schiffer, do you want to re-ask your question? COMMISSIONER SCHIFFER: The question is really for the applicant. Did he -- he's saying he's going to accept the 25- foot height, but I'm not sure he realizes that that's -- all that's really going to do is lay his roof down a little bit flatter. I mean, we measure to the midpoint of the roof, or you're right, to the top of mansard or to the top of a flat roof, but in other words, if he builds a typical story, he's only going to have a 12- foot high roof, which is usually less than the slope houses of this stature have. I just want to make sure he's comfortable with that. MR. BUTLER: We're comfortable with a 25 maximum foot -- maximum height with the house and with the pool cage, adding on the houses that back up to Hawks Ridge. CHAIRMAN STRAIN: Okay. Mr. Schiffer, are you-- COMMISSIONER SCHIFFER: Yes. I just want to make sure he knows what he's doing here, because what he's really doing is laying his roof down. That's all. CHAIRMAN STRAIN: Well, they are small lots, so it may not be that much of a problem anyway. Are there any other questions of the applicant? Ray, we're finished with our public speakers? MR. BELLOWS: Correct. CHAIRMAN STRAIN: Thank you, Mr. Mahoney. MR. MAHONEY: Thank you. CHAIRMAN STRAIN: With that we'll close the public hearing for petition RZ-2005-AR 7825 and we'll entertain a motion. Page 78 November 17, 2005 COMMISSIONER ADELSTEIN: I move that AR-7825 be forwarded to the board of county commissioners with a recommendation of approval subj ect to the following conditions which will be read into the motion by Mark Strain. COMMISSIONER VIGLIOTTI: I'll second that. CHAIRMAN STRAIN: This is great. Before you even know it, I'm going to read into it, your first and second. This could be a really good one. Motion made and seconded. Remember that for later on today. CHAIRMAN STRAIN: I would like to suggest the following stipulations. A type B landscape buffer will be used throughout the perimeter of the project. It will be modified with a minimum of 14- foot height trees at 25 feet on center and 14- foot live oaks along the north property lines -- along the north property line installed before the first CO is issued on this property. Number two, the two story will be a limitation not to exceed 25 feet for those homes along the Hawks Ridge property. Number three, we agree to accept the contribution of a thousand dollars at CO for the affordable housing trust fund, to be handled in the same manner that prior proj ect donations of this manner have been worked out between the county attorney as it is processed to the BCC. Number four, the rear accessory setback is to be the same as the principal setback, which is 20 foot in the rear yard. Those are the four stipulations that I recall. COMMISSIONER MURRAY: I have a question with regard to your stipulations. CHAIRMAN STRAIN: Yes, sir. There was a second. Mr. Vigliotti -- COMMISSIONER VIGLIOTTI: I'll second that. COMMISSIONER MURRAY: With regard to the one stipulation about along the north side 25 foot, does that allow -- in your mind, does that allow them to go to a greater height anywhere Page 79 November 17, 2005 else? CHAIRMAN STRAIN: It's a minimum -- those are minimum heights. So yes, they can come in with a larger tree, but the minimum has got to be -- COMMISSIONER MURRAY: No, I'm referring to the height of the building. CHAIRMAN STRAIN: Yes. COMMISSIONER MURRAY: They can build 35 feet -- CHAIRMAN STRAIN: Whatever the district allows. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Along the north property line, it's limited to 25 feet, as the applicant suggested. MR. VOLPE: Mr. Chainnan, may I just ask for clarification? The applicant -- and the discussion has been related to the single- family residences along the northern property line. If you'll notice further to the west, which is the -- that area, those are multi-family units. That's the county -- so we're talking on the subject property, just the -- CHAIRMAN STRAIN: The Hawks Ridge piece that borders Hawks Ridge single family. MR. VOLPE: Which is the subject of this petition. CHAIRMAN STRAIN: That's correct. MR. VOLPE: Okay. CHAIRMAN STRAIN: That's what the intent is that I understand. Any further comment from the panel? Hearing none, we'll call for the motion. All those in favor of recommendations as stipulated? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. Page 80 November 17, 2005 COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (N 0 response.) CHAIRMAN STRAIN: Motion carries 8 to O. Thank you. Now, for the court reporter's benefit, we have two projects that we have to finish with here today, and I know you've got to call in a relief at noon. I don't know if we'll get through these by noon. I know we won't get through them by noon. We'll probably have to break for lunch and come back for a short period in the afternoon, the way it looks. Do you need time to make a phone call? THE REPORTER: No. I have her set. CHAIRMAN STRAIN: I think, based on -- it's up to the panel. After this next one, depending on the time it takes, we may end up going straight through. I just don't know. At this point, I wanted to give you at least it's going to be past noon. I can assure you that. Okay. The next hearing is on petition PUDZ-A-2004-AR-6417. Ronald Benderson, et aI, Trustee. It's the 75/Alligator Alley. It's from a PUD to commercial planned unit CPUD. All those wishing to testify, please stand and raise your right hand. (Speakers sworn.) CHAIRMAN STRAIN: Thank you. Disclosures from the planning commission. I had a brief conversation concerning the traffic impacts to Davis and 951 with Mr. Bob Duane. Other than that, I guess that's all for me. Okay. Mr. Duane, when you're ready, sir. MR. DUANE: Thank you. For the record, my name is Robert Duane from Hole, Montes and Associates. I last appeared before you Page 81 November 17, 2005 on this petition in 1989. I have with me today Bruce Anderson. I have Rob Price from the Metro Group. I have Robert Agrousso (phonetic) from Kindley and Horn with me. I have, from Ken Pascarelli and Associates, Kim Munkers. And I also have Jerry Neal, a professional engineer from Hole, Montes and Associates to discuss any engineering-related issues. Just to give you a broad overview of the project, as you can see from the aerial photo there, the 40 point acre site. It is on the north side of Davis Boulevard. It has frontage on 951 to the east, and you see 1-75 to the north. This property is located in a commercial activity center, and has been located in an activity center since 1989. It's also been zoned for commercial uses since that time. While there are a number of changes that are proposed in this petition, the two principal changes are to reduce the size of the preserve area which is this 15-acre area that you see here from 15 acres to 11 acres, and we're also increasing, as a result of reconfiguring the preserve area, we're increasing the commercial area of the site by 3.6 acres. So it's a modest increase in actual amount of commercial acreage. The environmental advisory board reviewed this petition a few weeks ago and they recommended unanimously for the reconfiguration of our preserve area. There were several reasons for that. One, that mitigation area has been planted on at least two different occasions, and it's not -- it was unable to be sustained. My client has met with representatives of the South Florida Water Management District, the United States Anny Corps of Engineers, and we've agreed to provide for off-site mitigation, and the environmental advisory board thought that this was a good location to try to abandon our efforts for restoration and try to get a bigger bang for our buck somewhere else. Also, as part of this petition is to revegetate approximately 6.2 Page 82 November 17,2005 acres of the remaining water management preserve area, which will meet our requirement of 15 percent of the site. A few other miscellaneous changes I'll just briefly outline for you. We're deleting residential uses, because we believe this is a commercial site and is not well suited for residential development. In fact, on the old PUD master plan, there were no residential uses depicted. It was merely a use that was allowed in the 1989 PUD approval. The commercial list has been revamped somewhat. They are basically C 1 to C4 uses, which are presently allowed today with SIC codes. The maximum allowable square footage for this planned unit development is 265,000 square feet, including an existing 107 unit motel that currently exists along with two fast food restaurants. I would like to point out to you that the 1989 ordinance did not have a limitation on the amount of square footage, but based on the area proposed for commercial use, which is approximately 9,700 square feet per acre, our 3.6 acres would translate to approximately 34,000 additional square feet of retail use that we're accommodating based on the 3.6 acres that we're adding today. The western entrance into the proj ect, which is J oyrose Place, located at the bottom of the aerial photo is going to be moved over about 50 feet to accommodate a better parcel which is shown as lot three on that aerial. We're also requesting two minor deviations that staff is supporting that I can go into some detail if there are any questions on those. I would also like to, for the record, note that our client has currently obtained adequate public facility certificates for 130,000 square feet, so that amount of retail development can go forward today and has been accounted for in the systems. The balance of the square footage, of course, will have to be subj ect to concurrency. And that constitutes my broad overview of the request before you today, and either I or any other members of my team will be happy to Page 83 November 17,2005 answer questions for you. Yes, sir. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: I need to understand, on Page 2 of 18, and I believe that's the county's document, but the purpose of the description, are we talking about a reduction of apparently 30 percent to -- from the 15 acres to the 10.5 acres? Is there any mitigation associated with that? I mean, can we just reduce that? Explain that for me, please. MR. DUANE: We're providing -- first of all, we're revegetating that area with 6.2 acres. That meets our minimum threshold of the 15 percent, and then I believe we're providing, is it 30 credits, Tim, upwards of 30 off-site mitigation credits. COMMISSIONER MURRAY: I didn't see that in here. I may have missed it, but I didn't -- I looked for it. MR. DUANE: It's in the environmental impact study. Actually, the cost of that off-site mitigation is going to be upwards of a million dollars, based on my cursory understanding of what the value of credits are in Collier County. COMMISSIONER MURRAY: Thank you. MR. DUANE: You're welcome. COMMISSIONER MIDNEY: How much is a credit? How much acreage is a credit? MR. DUANE: I'm going to defer to Kim from -- Kim. It's not based on acreage. I understand it's based on functionality and you trade one set of functions for another, and that translates into credits, but she can give you a more technical answer than I could. MS. MUNKERS: Hi. Kim Munkers with Pascarelli and Associates. How it's done is the mitigation analysis. And depending on the amount of acreage you have, you do an assessment, which in this case, we did a wrap analysis, and that's what the Anny Corps of Engineers Page 84 November 17,2005 and the South Florida Water Management District will take, and these acres are converted into credits. And so if you went to Panther Island mitigation bank or Big Cypress, which I think are the two options for this site, it would probably be around $35,000 per credit. COMMISSIONER MIDNEY: No, the acreage, I was asking about. MS. MUNKERS: The acreage? COMMISSIONER MIDNEY: Yes. MS. MUNKERS: For the mitigation analysis? I think the proposed -- the off-site mitigation is for 17.28 bank credits. And that's based on -- I believe it's 28 acres of wetland impacts or total wetlands. COMMISSIONER MIDNEY: 17 credits comes out to 28 acres? MS. MUNKERS: Excuse me. I'm trying to find out what the total acreage is for the bank credits. CHAIRMAN STRAIN: Maybe we can go on with other questions and you can come back and answer that. MS. MUNKERS: Okay. CHAIRMAN STRAIN: Are there other questions of the applicant? Mr. Tuff. MR. TUFF: Yes. I just have one question. It seemed like it was pennitted, before anything was built, 265,000 square feet, and then the hotel was built, and what you're -- if I'm comprehending this right, you are saying you want to use that 107,000 and not count the -- I mean, 265,000 square feet, and have the hotel as an addition to __ MR. DUANE: Well, the motel was previously approved at 26 units per acre, and there were four acres within this PUD that supported that density, and the hotel was built a number of years ago, just like the fast food restaurants. MR. TUFF: But it was included in that 265,000 requested __ MR. DUANE: The two fast food restaurants are included in the 265,000 square feet, and the two fast food restaurants comprise approximately 9,600 square feet, and they are contained in the Page 85 November 17,2005 265,000 square feet. The motel stands on its own. CHAIRMAN STRAIN: Any other questions of the applicant? COMMISSIONER MURRAY: I have a question for transportation. CHAIRMAN STRAIN: We're going to be getting to that. COMMISSIONER MURRAY: I was going to ask the Metro person, the representative. CHAIRMAN STRAIN: That's fine. Do you mind if I ask my questions of Mr. Duane first then, please. COMMISSIONER MURRAY: Not at all. COMMISSIONER SCHIFFER: I have some. CHAIRMAN STRAIN: Go ahead. Why don't you go ahead. COMMISSIONER SCHIFFER: The concern I kind of have is that this is kind of a gateway to the community. You're going to see it going over the overpass, everybody who comes through 75. You are going to meet the architectural standards -- MR. DUANE: And we're going to meet the interchange activity center number nine design requirements of landscape requirements and design guidelines. COMMISSIONER SCHIFFER: One of the architectural standards is having less than 50 percent of the parking between the building and the roadway, and the fear I have, looking at this, this looks like a good old 1960s strip mall, and I wonder if that meets that requirement or is there going to be a change to that plan? MR. DUANE: No. And I'm sure staff will correct me if I'm wrong, but my understanding is that that parking lot will, in effect, when you develop the one, two, three, four -- four or five outparcels that are shown, that, in effect, staff views that as a way of obscuring your parking lot. So it would be my opinion, based on, and Ray, correct me if I'm wrong, that based on how we've structured this development, that that is not an issue, vis-a-vis, the architectural design guidelines. Page 86 November 17,2005 MR. BELLOWS: For the record, Ray Bellows. I believe that would qualify. COMMISSIONER SCHIFFER: I have it here. We could read it. I mean, I'm not sure it does, but, first of all, that's important. I mean, would this plan go through architectural review or has this plan gone through architectural review? MR. BELLOWS: We're at the time of zoning, and they are going to be consistent with the architectural ordinance. They'll have to go through a site development plan stage with the county architect. The urban design reviewer will enforce those provisions and make that detennination if that provision Mr. Duane quoted applies or not. MR. DUANE: We have actually been in, for the past two years, for site plan review, but we have had to resolve this mitigation issue before we could obtain approval of the site plan, and to my knowledge, that issue never came up, but we understand we need to meet the architectural site design guidelines. COMMISSIONER SCHIFFER: So Ray, your judgment is that what the code says, essentially, is that 50 percent of the parking, can't have more than 50 percent of the parking between the building facade and abutting roadway. So when they throw an outparcel in there, that breaks that link or -- MR. BELLOWS: Yes. There's language in the land development code concerning architectural provisions, and I do recall this issue being raised, as Mr. Duane mentioned, and the site development plan is -- has been submitted and under review, and I believe it did come through for an interpretation of some kind and supported that provision that when you have several outparcels side by side along the roadway, that that is a screen and buffer for the parking area. COMMISSIONER SCHIFFER: How about the 75 access road or the exit road and all that other stuff, it looks like it's facade parking road to me. Page 87 November 17,2005 MR. DUANE: I mean, we have a preserve area that wraps around, you know, the parking lot. I mean, that area comprises almost 11 acres. In fact, the replanted -- the area that's going to be replanted is principally, you know, this is the -- CHAIRMAN STRAIN: Could you use the mike, Bob? There's a handheld mike. MR. DUANE: The 6.2 acres we're -- the 6.12 acres we're planning, I mean, it wraps -- I mean, this is all going to be constructed with, you know, the canopies, the mid-story, the under-story, and it will be extensively revegetated. So I think it will have a -- dress well from 1-75. COMMISSIONER SCHIFFER: But the road, as we come down 75, we're going to be lifted up over Collier, so we're going to have a nice aerial view of this site looking right across that parking lot. So anyway, my concern is the '60s look of this. I'm done. CHAIRMAN STRAIN: Mr. Midney. COMMISSIONER MIDNEY: Can you explain why the plantings died before? You said they died twice? MR. DUANE: Twice. It's my understanding, and Kim can jump in, but hydrology was one of the reasons. We have roads constructed around the site today, and I think Ken Pascarelli also testified at the hearing that the mitigation plans that were approved back at that point in time just were not sustainable, given the elevations of the current property and the hydrology, and I think that's why the Corps and the district have agreed to do that mitigation elsewhere, because this has been a failed effort over now a 15-year period. In fact, as you can see from the disturbed nature of the site, a lot of people have been using it with off-road type vehicles, which has probably also not enhanced it either. CHAIRMAN STRAIN: Kim, I think your name is, did you come to a conclusion to the question that Mr. Midney had earlier? State's Exhibit. Page 88 November 17, 2005 MS. MUNKERS: I was looking through it. I don't actually have the analysis with me, but I believe it was based on 12.9 acres of wetland impacts, but it's going to be a total of 17.28 credits. COMMISSIONER MIDNEY: For 12.9 acres? MS. MUNKERS: That's what I can see from what I have in front of me, but I don't actually have the mitigation analysis in front of me to refer to. COMMISSIONER MIDNEY: Thank you. CHAIRMAN STRAIN: Any other questions of the panel? If not, Bob, let's get started on mine. In your PUD document, Section 3, 3.3B, it says that -- MR. DUANE: What page is that, Commissioner? CHAIRMAN STRAIN: Page 5. I'm not sure the pages will be consistent, so I was using the PUD reference numbers, 3.3B. It says that you are anticipating the buildout at approximately six years from the time of issuance of the first building pennit or 2011. You've already had that hotel there longer than six years. So what buildings are you referring to that would start in six years? MR. DUANE: That would be the development of the two outparcels that are located -- CHAIRMAN STRAIN: So any building approved after -- that goes forward after today's meeting? MR. DUANE: Yes, that's correct. CHAIRMAN STRAIN: Your fonner project had some multi-family in it, I heard you say? MR. DUANE: That's correct. CHAIRMAN STRAIN: I don't imagine, contrary to what the prior applicant was going to do, is building million dollar homes, I don't think there will be minion dollar multi-family homes there. Most likely, they will be work force or affordable or something of that nature. This project has eliminated that, which could have eliminated a Page 89 November 17, 2005 large help in our affordable housing program for Collier County. Is this project going to do anything for affordable housing? MR. DUANE: I'm waiting for the question. CHAIRMAN STRAIN: I just asked you the question. MR. DUANE: The answer is yes. CHAIRMAN STRAIN: Pardon me? MR. DUANE: The answer is yes. CHAIRMAN STRAIN: Which is? MR. DUANE: I believe the person before us agreed to make a contribution to the housing fund, and I indicated to you that we're proposing 3.6 acres of additional commercial area, which translates into 34,000 feet, and we would be willing to make a contribution of 50 cents a foot towards that, and we would also agree that if and when the board enters into some kind of a fonnal agreement or ordinance for these contributions, that credits be available for our contribution, should, in fact, such language appear in any future ordinances that you may have. CHAIRMAN STRAIN: Okay. Ray, this PUD, when did it start processing through the new fonn, because this one is riddled with redundant language from the LDC, as I've complained about for what, two years now? How long has this one been in process, because this is one of the worst ones I've seen for redundancy back to the LDC agaIn. MR. BELLOWS: I'm not sure. MR. DUANE: We go back to June, I believe it would be June of 2004. Actually, my cover letter was dated August 18th, 2004. So that would have been 15 months ago. CHAIRMAN STRAIN: I'm assuming-- MR. BELLOWS: Yes, and aside, the language that I'm working on for an LDC amendment is -- since Ave Maria, I've been working on it, and we'll be trying to get on the next LDC agenda cycle, and you'll be getting a draft of that soon. Page 90 November 17,2005 CHAIRMAN STRAIN: The lake excavation setback requirements for lakes in this particular PUD are referred to as -- it's under 4.6A. It says, lakes shall confonn to requirements described in Subsection 22-112 of the code of laws. I'm not familiar with that cite before. N onnally, we've referred to the land development code. I'm concerned that the fact, if we're going to keep putting this kind of language in, that we don't reference now everything besides that, that it could be utilized against or designed to. We might be subjecting them only to this section, when other sections may apply. Are you -- I mean, the land development code has specifics and requirements of excavation. By this language, does this mean they are no longer subject to that, they are subject to Section 22? MR. BELLOWS: I think this language is to take into account the change in the -- the readoption of the land development code certain standards and procedures that were previously listed in the LDC have been shifted to -- MR. DUANE: To the code of laws, and particularly as they relate to excavation, and that's why we made that -- CHAIRMAN STRAIN: But if this document was silent on that, wouldn't it fall back to that anyway? MR. BELLOWS: Correct. CHAIRMAN STRAIN: Okay. If this document is not silent on it, as it isn't, and specifies it's specific to that section, does that eliminate it from being applicable to other sections that aren't listed here? MR. BELLOWS: No. CHAIRMAN STRAIN: Someday, can we get this straightened out? MR. BELLOWS: It's in the process of being straightened out, and like I said, we have the draft language completed. It's going to be in the next LDC amendment cycle, and you'll be getting a draft of it Page 91 November 17, 2005 soon. CHAIRMAN STRAIN: Bob, on Page 21, Item E, 7.5E, it says, a minimum 20- foot wide water management easement shall be provided around all stonnwater management areas. That was struck out. Was there a reason why it was struck out? MR. DUANE: Of what item? CHAIRMAN STRAIN: Page 21, 7.5E. MR. NEAL: Jerry Neal, representing Hole Montes. The definition of excavation, you would expect that you are going to dig down. Actually, what is happening is on this area right here, the natural ground is about the same elevation as the finished product, which is going to be dry detention, and then we'll just have to -- we're going to build a benn on this side, and a benn by the construction of the proj ect. So we're really not digging down. We're actually doing water management like you do on other projects. We're going up. The other is water management in this area, and that's the same thing. We're not digging down. We have to, because of the change in the new code that put this in activity center number nine, the existing buffer that is along 1-75 ramp does not meet today's standards, because it is put in the design in '89. So we're going to go in and redo that buffer, and it's 25 foot wide, to get into today's standards, but again, there is no excavation planned for here as far as digging down. What we're doing, really, is providing the benn to today's standards around it. There is a benn there today, but it just doesn't meet today's. So I guess, in a way, the question about putting this -- we don't have a lake anywhere. You have the ponding for detention, for a wet area and a dry area. So I don't know if this confused you more or not. CHAIRMAN STRAIN: No. It answers my question. I understand now you are doing mostly dry detention, and that is a different application than a wet lake. Page 92 November 17, 2005 MR. NEAL: Yes. CHAIRMAN STRAIN: Thank you. I have -- as Mr. Murray has indicated already, there are a lot of transportation questions, and I'll save the rest of my questions for that. COMMISSIONER MURRAY: I just have, if I may-- CHAIRMAN STRAIN: We're not there yet. I just want to make sure everybody is done with Mr. Duane. They are? Okay. Bob? MR. DUANE: Yes, sir. CHAIRMAN STRAIN : Your transportation expert, expert, if he's here, I guess then Mr. Scott is going to be certainly involved in this. So if we can start with your -- MR. DUANE: We have two experts today. Can you frame the question? Bob Price -- COMMISSIONER MURRAY: Mine is pretty basic. Just a qualification. On Page 3 and then Page 5, I'm calling to your attention on the first paragraphs of Page 3, and I'll read it to you. It says, the site access intersections with Davis Boulevard are anticipated to operate under unsignalized conditions. Okay. But on Page 5, the first paragraph, close to the last sentence, it says, the proposed development will access Davis Boulevard via a full access point and a right in, right out access point. Is that the same thing? MR. PRICE: It doesn't really restrict -- the first paragraph where you read. COMMISSIONER MURRAY: Yes. MR. PRICE: I mean, you can have a full access point without a signal. MR MURRAY: No. I understand. I guess maybe I should go to the basis of my question which tickled my mind was, how does that impact, if you have a difference, and if it's, in fact, a difference in those two sentences, as they mean something, did that impact on how you did your calculations and your review? Page 93 November 17, 2005 MR. PRICE: I don't think there's a -- COMMISSIONER MURRAY: A difference? MR. PRICE: -- difference. Robert Price, Metro Transportation Group. Sorry about that. COMMISSIONER MURRAY: And I'll -- I'll go back now. We'll just stop for the moment on that. That will be good for me. Thank you. CHAIRMAN STRAIN: Any other questions on transportation? Sir, Page 3 of your report says Collier Boulevard has a posted speed limit of 55. That's a long boulevard, and I have to agree, over the 20-mile length of it, there is some sections that will be 55, but if I'm not mistaken, in the intersection you are closest to, it's 45. Does that have any bearing on your report? MR. PRICE: The only bearing it would have would be on turn lanes, and if we accounted for a 55 mile per hour speed limit, actually -- actually, we didn't even propose turn lanes on Collier Boulevard, so it really has no bearing. CHAIRMAN STRAIN: Well, there's already turn lanes there. You are proposing not to modify those is what you're telling us. MR. PRICE: That's correct. CHAIRMAN STRAIN: You also said that in order to gain a better understanding of traffic conditions that currently exist along Davis Boulevard, you obtained a two oh two p.m. peak hour turning movements. Why are you using turning movements that are three years old? MR. PRICE: Because that was what was available to us at the time of the TIS. There was construction going on at Davis and Collier Boulevard at that intersection, so it wasn't feasible for us to go out and do traffic counts. CHAIRMAN STRAIN: So the most recent count you are using is from 2002. MR. PRICE: That was the best data that we had available at the Page 94 November 17, 2005 time of the TIS, which was 2004. CHAIRMAN STRAIN: I had a call with your applicant scheduled for nine o'clock the other morning, and I had to call him while I was sitting on 1-75, waiting to get off that intersection at 951 and Davis because it was backed up for 30 minutes onto 1-75. I thought there was a traffic accident. There wasn't. It was nonnal traffic. I came there this morning, and it was again -- it took me 30 minutes to get through the intersection. Our court reporter is here today because she's late getting through that intersection. I would bet that from 2002 to now, the points that you need to be looking at, the peak movements have changed some. I don't know how effective it is to use an older date like this. It's concerning to me, for sure. So you estimated, it says, the proj ected 2006 background traffic conditions. Were they estimated to reflect the backups that were there today, yesterday, the day before and what we've been going on, or were they showing traffic flowing, or how do you estimate things like that? MR. PARK: You just basically take the traffic volumes, grow them up out of the growth rates that the county provides. We grow them for the four years to get to 2006, and we ran, you know, ran an analysis in software that's accepted procedure for TIS. CHAIRMAN STRAIN: How did you get to the 115,300 square feet of retail floor area that you used for your calculations under your Table I? MR. PRICE: The hundred and -- I believe in the TIS that you see, it says 115,000. CHAIRMAN STRAIN: It says 115,300. MR. PRICE: There was an update that was done that perhaps did not get submitted to the county. I'm not sure, but that's what I have in front of me. Page 95 November 17, 2005 But okay, the 115,000 that we came up with was based on the 130,000 square feet that's been prepaid for the impact fees or for adequate public facilities, and then the difference in what is already constructed on the site and the remaining hundred -- it's actually 125,400 square feet. CHAIRMAN STRAIN: So the 130,000 prepaid are off the books, because they already have their COAs, right? MR. PRICE: That's already accounted for in the concurrency system. CHAIRMAN STRAIN: The new impacts would be anything constructed after what's already there, and that's what you're estimating is the 115. MR. PRICE: No, sir. The new impacts would be beyond what's already been prepaid. There's -- 130,000 square feet that are already accounted for in the concurrency management system. CHAIRMAN STRAIN: Right. MR. PRICE: So above and beyond that 130,000 square feet is the 125,400 square feet that we analyzed. COMMISSIONER CARON: I thought the total was 265. MR PRICE: Yes, ma'am. There's existing development on the site as well. COMMISSIONER CARON: You are taking out the motel? MR. PRICE: Yes, ma'am. CHAIRMAN STRAIN: That's been previously accounted for. You used the shopping center ITE trip rate generation? MR. PRICE: Yes, sir. CHAIRMAN STRAIN: In the past, I have been told, and when asked again today, when transportation gets up here, weren't you supposed to be using the most conservative, and if you were, then the food store category would be most conservative, and there would be several times the trip generation rate of a shopping center, the food store, major group 54. Page 96 November 17,2005 MR. PRICE: For a development of this nature, that includes outparcels and attached development to a main strip center, you would actually -- it's accepted practice to run it under shopping center land use. The food store would just be basically only a food store, not the additional square footage that's adjacent to the food store. So for the accepted practice at, you know, we run throughout all of our other organizations that we do these analyses in, shopping centers is what is accepted as the land use to use for a development of this nature. CHAIRMAN STRAIN: We're used to seeing that nonnally used. I agree. I'm not saying it hasn't been nonnally used. It's just that in discussions with transportation, we have been told that it's supposed to be the most conservative approach, and it doesn't seem to be if it's a different trip generation rate that's significantly lower than more of your higher trip generation rate elements in the requested rezone, so that's why I brought the question up. You have an impact on quite a few intersections and roads. Davis Boulevard, 3.4, 8.4, 13.2, and different locations, and 951,3.7. And I believe the -- you have a failed level of service on sections of the roadway frequented by this project site. How is it that with all of that happening, you still have a trip count that's allowed to be added to this road system? Do you know? MR. PRICE: Our TIS, actually, it only shows the failing level service on Collier Boulevard. CHAIRMAN STRAIN: Right. MR. PRICE: And that's under existing conditions, and actually, the Collier Boulevard is, as far as I know, is still scheduled to be widened, but I think it's within -- is it -- yes, it's '06, so it's within the window that we can account for it. So from that aspect, Collier Boulevard is not really -- and we can account for the improvement, so we can meet concurrency on Collier Boulevard. Page 97 November 17, 2005 CHAIRMAN STRAIN: Okay. Thank you, sir. My -- the rest of my questions will be of county transportation. Mr. Murray. COMMISSIONER MURRAY: I have another. In looking at your Figure 2 in the background traffic conditions, to the west, you have Radio Road, and -- are those numbers from 2002? MR. PRICE: They are from the same report, yes. COMMISSIONER MURRAY: There's been considerable building along Radio and that area there. Okay. Thank you. MR. PRICE: We use growth rates, like I said, just before -- we use county growth rates to grow the traffic up to the 2006 conditions. COMMISSIONER MURRAY: What does that tell me, sir? What does that mean? MR. PRICE: That means we accounted for typical growth on those roadway segments to grow the traffic from the 2002 counts that were used to 2006, the typical growth over the last four years from the county. COMMISSIONER MURRAY: And you are using a percentage rate as your typical; is that it? MR. PRICE: Yes, we take it from the county's traffic report. COMMISSIONER MURRAY: Is that typical based on the totality of the county's -- MR. PRICE: That's typical based on the county, on that particular roadway link. COMMISSIONER MURRAY: So it's specific to that area at least. MR. PRICE: Yes. COMMISSIONER MURRAY: Okay. Thank you. COMMISSIONER CARON: Let's just go over the math one more time on Table 1, where you said now that you are working with 125,0000 square feet. MR. PRICE: Yes, ma'am. Page 98 November 17,2005 COMMISSIONER CARON: Well, if the total project is 265, you're vested for 130, that leaves 135, not 125. MR. PRICE: Yes, ma'am. There's an existing -- there's two existing fast food restaurants that are part of the total 265,000 square feet. COMMISSIONER CARON: And they are not part of the 130? MR. PRICE: They are not part of the 130. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Any other questions of this gentleman? Thank you, sir. Mr. Scott. MR. SCOTT: Don Scott, transportation planning. CHAIRMAN STRAIN: How are you doing, Don? MR. SCOTT: Not too well. As you can imagine, not too well. CHAIRMAN STRAIN: I know you know how bad that intersection is. How did you figure this proj ect impacts on that intersection? Not the one that's in front of us today, but as it previously existed, what did you allocate in the transportation concurrency basket for the intensity of this particular project in regards to what you counted? MR. SCOTT: If you're talking about -- are you talking about what was previously vested? CHAIRMAN STRAIN: I don't even know -- I don't want to classify it as vested necessarily. I'm just asking, what, in your -- see, the applicant had a unique PUD in the sense that it didn't provide a definite number of square footage or units or did -- units in regard -- it just said anything that can be built within a certain envelope, if I'm not mistaken, and that could equate to different values of square footages. I'm just wondering how the transportation department weighed that in regards to future impacts on the road system when you had to calculate these for checkbook concurrency. MR. SCOTT: When they submitted previously, at least for the -- Page 99 November 17, 2005 let me take it in two sections. The 130,000 that was, previously, was 110,000 of retail and 20,000 of restaurant, and that was how the trips were allocated into the concurrency system previously. CHAIRMAN STRAIN: What was that again? MR. SCOTT: 110,000 of retail and 20,000 of restaurant. CHAIRMAN STRAIN: Now, that's because of the COAs they purchased, right? MR. SCOTT: That's right, and that was back in --let me grab the COA. January 8th of2002. CHAIRMAN STRAIN: That doesn't coincide, though, with the maximum that they could have provided in the original PUD. What I'm getting at is when you assess the -- like you were -- like what checkbook concurrency, I thought, was supposed to do, was take all of the existing approvals on the books and allocate them to the road system so that any future approvals could be judged against what was already approved. MR. SCOTT: Well, two different things in that statement. The concurrency system has what they were vested for. Anything beyond, they are subj ect to concurrency and whatever they bring forward as we discussed before at a site plan or like we are today, would be added onto it. Now, from a modeling aspect, yes, there's a lot more in there, even on the south side, there was what, 450,000 of industrial commercial. In this corner, I don't know what the model specifically had in it, but it has more development in that quadrant. CHAIRMAN STRAIN: Well, if they came in and wanted to put a super store there of some type, like a Lowe's or something, would they be able to get a pennit at that intersection? MR. SCOTT: No. And one of the questions was asked that if it was just today, from a site plan -- development plan came in today for a certain amount of development based on the TCMA, they might be able to. Now-- Page 100 November 17,2005 CHAIRMAN STRAIN: That's kind of-- MR. SCOTT: -- findings of concurrency now, though, consistency, it is not consistent today based on not having Davis programmed now. CHAIRMAN STRAIN: See, that Davis and 951 is a -- you can go home five, six, seven o'clock at night, and you'll sit in a line of traffic all the way back to Cracker's restaurant at 951, waiting for the line to get through that intersection. MR. SCOTT: Cracklin Jacks, yeah. CHAIRMAN STRAIN: If you go in the morning, you are either sitting on 1-75 or you're sitting all the way back past 1-75 on 951 again, waiting to go south. I mean, it's not good. I just want to make sure that whatever happens here doesn't make it any worse any sooner than it's repaired. MR. SCOTT: Let me get in the definition of what he was talking about, too. Collier Boulevard is programmed for 2006 for six laning. Davis was to be programmed for 2008 previously by DOT. They have taken out half of the right-of-way, and this has all happened in the last week, half the right-of-way and all of the construction dollars are out of the five-year work program. Right-of-way now is in 2011. Our first question was, when do you think we will have a project. They said, I can't answer that question. If I go by what I think our future money is for federal and state money, it's at least ten years away. We -- and I said the board and us probably can't stand for that kind of time frame, and we'll have to come up with a solution. As I stand here today, we don't have one. CHAIRMAN STRAIN: Okay. This has all changed then since MR. SCOTT: This has all changed. CHAIRMAN STRAIN: Would you have still written the same recommendations in your report today that we have in the one in front of us? Page 101 .._-""""",...._.._"'-"".".,~,., November 17,2005 MR. SCOTT: No. And I have other -- when I went to this, looked at this further, staff member, I would suspect, had made this consistency determination, but on our, you know, what is our last comments, we have rejection on this still. Now, I think there was some discussion with a staff member that doesn't work for us anymore, and there might have been some other discussions, but I don't know what they are, and at this point, I'm not sure I care. CHAIRMAN STRAIN: Okay. So this project, then, in the eyes of your department is inconsistent. MR. SCOTT: It's inconsistent. I can't answer the question when Davis is going to be widened, and based on that, I can't say if it's going to work in five years. CHAIRMAN STRAIN: Okay. Well, I think that probably resolves a lot of questions. Although, I do still have some, I don't want you to think you're off that easy. MR. SCOTT: No. I won't call that easy. That is not what I want to be standing here and saying today. COMMISSIONER ADELSTEIN: We know that. CHAIRMAN STRAIN: The water management system in this proj ect is changing, and I know that one of the provisions in the PUD MR. SCOTT: Which was added, I noticed from under -- CHAIRMAN STRAIN: Right. Was added in order that you guys would have some use of that water management system. Do you know if the system that's been reduced to what it is today is adequate for the uses you need as well as for their new -- MR. SCOTT: I actually -- I was doing that for FDOT. Design has just started on the proj ect, and so I don't know what the capacity requirements are. Weare asking everybody up and down the line. Obviously, if the county takes over the proj ect, we'll be asking more than what we've been asking previously, too. Page 102 November 17,2005 CHAIRMAN STRAIN: So at this point, you don't even know if the reduced -- if the reductions that they are asking for today will hann or hurt the situation that you need them to comply with pursuant to the PUD. MR. SCOTT: Yes, that's true. CHAIRMAN STRAIN: Hope is diminishing here. Just so you know, in 1989, Mr. Bellows was in charge of the -- was the planner in charge of this project, and he, I'm sure, under testimony and the utmost discretion, described to the BCC what was going to be put in this project, and his description was the following. It will be a mixed use planned development, allowing for non-residential development on lots one, two and three, up to 125,000 square feet, but 90,000 if, on lot four, a hundred unit hotel got built. The remainder of the property was supposed to be for 150 multi-family dwelling units or a 250 unit motel. So I went and tried to figure out what that equates to in relationship to today's request, and basically, you have a 90,000 square feet with a hundred unit hotel on lot four, and you convert the 150 multi-family at the same rate they use for conversion between retail and motel, and you add another 82,500 square feet for a total maximum that they could have had based on Mr. Bellow's presentation of their project back in '89 of 172,500 square feet. That's why I asked you what you had on the books, because from what I can tell, the impacts would have equated to somewhere around that number, and they are asking for another nearly hundred thousand, about that, today. MR. SCOTT: And the model was revised in 2001, and obviously, we're under -- revising the model for the longer tenn, and I know it has more of an industrial, retail type of, at least in the model, than what was what you are talking about there. CHAIRMAN STRAIN: Okay. Well, Don, the last question is, this discussion that I had with their Metro guy concerning the Page 103 November 17,2005 intensive uses, the most intensive -- most conservative approach to the uses that could go on the site, and we had the same discussion on the W aI-Mart south. Everybody is using this shopping center code because it's much more lenient than some of the intense uses by the SIC codes that they're asking for, such as grocery stores. Grocery stores have a 17.2 maybe trip generation, where shopping centers have a much less, one-third of that or something. Is that the right approach for the traffic analysis that we've seen coming in? MR. SCOTT: I think, from what our discussions were in the past, is that even if we don't put it on a certain thing to have what some -- with timing-wise, what some people have brought in is different scenarios, and I think that's probably what we'll be doing in the future. This is dated back quite a while previous to a lot of those conversations, and that's why the data is not here today. CHAIRMAN STRAIN: The last question I have is on the 2002 trip -- actual trip counts that they used, have things changed out there since 2002 to a point that might be significant? MR. SCOTT: Yes. And as Rob touched on, we used growth in that area. The growth in that area has been more like 8 percent in traffic counts, but what you are stating in the last couple of weeks has happened makes you wonder if it's a little more than that this last year, too. CHAIRMAN STRAIN: Well, the season is upon us, too. MR. SCOTT: Yes, it is upon us early. Let me touch on one thing, too, about the access point. Weare working with the developer and the developer over to the west, which was -- it's going to slip my mind, what it's called. COMMISSIONER MURRAY: East Gateway. MR. SCOTT: East Gateway, to have a connection that will come out across from the bypass route to the south -- COMMISSIONER ADELSTEIN: To the Wal-Mart. Page 104 November 17,2005 MR. SCOTT: Exactly. Where that would be the full median opening with a signal in the future and direct that traffic to that location. COMMISSIONER MURRAY: Would that impact on any of this in tenns of numbers, flow? MR. SCOTT: Distribution. COMMISSIONER MURRAY: Marginal, right? MR. SCOTT: Yeah. Improves it, because obviously what is happening right now is people get out there and you have U-turns at a place that's not made for a U-turn, and then you have people turning around at a fire hydrant out there, and then also people turning into the driveway into the Wal-Mart and dong U-turns. COMMISSIONER MURRAY: I'm glad you clarified that for me. I knew it wasn't that significant, but it's important to know what was in the making there. Thank you. CHAIRMAN STRAIN: Mr. Adelstein, did you have a question? COMMISSIONER ADELSTEIN: Yes. In the report, it said they had 4,670 average daily trips. Is that all on Davis or is that going out 41 ? MR. SCOTT: That's their total development itself, and then you distribute that off from there. So if they are on Davis to start with, that's in the Davis area. CHAIRMAN STRAIN: Any other questions of Mr. Scott? Thank you. We have the staff report, please. CHAIRMAN STRAIN: Bob. MR. DUANE: If I may just clarify. I don't want to underestimate the importance of having Davis Boulevard improved in a timely manner. Weare in the TCMA, and my understanding is you look at a number of different blanks, you try to maintain 85 percent of the capacity of those links within the traffic management area, and I just wanted to clarify that I believe Don stated that there may even be Page 105 November 17,2005 some capacity, you know, either rightly or wrongly, that is available in the TCMA, because it's not just based on anyone link, and I just wanted to clarify that, and I don't believe that you would disagree with that, would you, Mr. Scott? MR. SCOTT: Obviously, we have had this discussion before when Golden Gate Parkway came in. My problem is from the whole area, is there capacity right at this minute, yes, within the TCMA. Is it going to be a year from now? I don't know. And the problem is we were assuming that, okay, as this, say, Golden Gate Parkway got worse, this would be improved. I don't have that, that balance. So yes, if someone came in right now with a site plan, it could get approval, but that's based on improvements that are out there, and some of those improvements aren't happening, so it's -- CHAIRMAN STRAIN: Hopefully, we're here to help you do the right thing, Don. Thank you. Jerry, did you have something? I mean, I'm ready to go to staff report unless you had something else? UNIDENTIFIED SPEAKER: Answer one of your questions. CHAIRMAN STRAIN: Sure. UNIDENTIFIED SPEAKER: We have, right now, a stonn pipe stubbed out at lot two, and we have one proposed at lot three to take care of half of Davis Boulevard, and it's already in the stonnwater management calculations. CHAIRMAN STRAIN: Thank you, sir. Michael? MR. DeRuntz: Mike DeRuntz, principal planner with the department of zoning and land development review. As the staff report that you have, we had -- we make a recommendation of approval based upon review by staff that the project was consistent with the growth management plan, and it was in activity center nine. In the report, there was a condition from the previous, Don had mentioned, engineer with the transportation Page 106 November 17,2005 services department, that the proj ect would be subj ect to the east central FCMA or TCMA regulations as was noted in the staff report. And then the ECA -- environmental advisory council also reviewed this on November the 2nd. They approved it with the stipulation that the preserve water management area would be fenced, and as one of the commissioners had mentioned, it might have been Mr. Midney, you know, what had happened over there, and all of the off-roading occurred and these -- the EAC was also concerned about that, and they made that stipulation. There was a neighborhood infonnation meeting, as was noted, on June 16th. There was one person that was present, and it was from Taco Bell. And they wanted to know how this impacted them, and it was advised that the proposed rezoning would not affect them, that that use would continue, and they were satisfied, and they had no objections. As you look, you know, around this -- the subj ect property, there is -- it is compatible with the other land uses that are around it. There's -- besides the interstate and the County Road 951, the other areas are all commercial, planned unit developments of extensive area, and the majority, that is, has not been developed, though. There are two deviations that are being requested, and as Bob mentioned, that staff was recommending approval, the first deviation was about the curvature of the manmade lakes, and the second was about the setback of the benns from the property line. With the recent development, it was, as mentioned by Don Scott from transportation services, of this being not consistent due to the changes to the funding of state transportation projects, the staff would have to now change our recommendation for denial, that it would not meet the growth management plan. COMMISSIONER MURRAY: Okay. MR. DeRUNTZ: And I'm glad that Don was here to brief you on that situation. Page 107 November 17, 2005 And if there's any other further questions, I'll be glad to try to address those. CHAIRMAN STRAIN: I have one, Mike. The PUD that was provided to us -- MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: -- it appeared as though it was a strike-out version. MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: But it was not. I pulled the original PUD or the PUD that's on record. It doesn't compare closely to the one that was strike-out, and I'm wondering that maybe -- it's nothing to worry about at this point, because we were able to analyze both of them, but the strike-outs that were in this one seemed to be corrections that occurred over a period of time, but not a strike-out against the original PUD. So maybe in the future, if we could make sure we look and we have a strike-out of the original one, that really would help understand the changes that -- MR. DeRUNTZ: Oh, is that the very first one? CHAIRMAN STRAIN: The very first one with any amendments it had. MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: That's what I found this one wasn't. I just wanted to make that point for future reference. MR. DeRUNTZ: Thank you. CHAIRMAN STRAIN: Thank you. COMMISSIONER SCHIFFER: Well, Mark, let me say, that-- so you are saying the PUD in here is a brand new PUD with the strike-outs in it? CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: It wasn't the original PUD struck out? Page 108 November 17,2005 CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: No. MR. DeRUNTZ: The original PUD, they just -- they were just redoing it all, because it was so massive, but I should have provided a copy of the original PUD. COMMISSIONER SCHIFFER: How would there be strike-outs in this thing? CHAIRMAN STRAIN: The strike-outs in this one are corrections to their first version of it. MR. DeRUNTZ: First version of the new draft. COMMISSIONER SCHIFFER: Tricked me. CHAIRMAN STRAIN: That's why I checked. Any other questions of staff? Ray, do we have any public speakers? MR. BELLOWS: No one is registered. CHAIRMAN STRAIN: Okay. Are you guys milling around because you want to say something before we close the public hearing? MR. ANDERSON: My name is Bruce Anderson from the law finn of Roetzel & Andress, on behalf of the applicant. I wanted to be clear that, and you correct me if I'm wrong, Mr. DeRuntz, that your finding of inconsistency is only with regard to the increase in the square footage that is being sought. Would that be a correct statement? MR. DeRUNTZ: No, sir. The -- Mike DeRuntz for planning. My recommendation of not approval is due to the inconsistency of the growth management plan and not meeting the transportation element. MR. ANDERSON: But not any other part of the request? MR. DeRUNTZ: Right. MR. ANDERSON: My point being that, although you may not be favorably inclined with regard to the request for the additional Page 109 November 17,2005 square footage above the 130 that the APF certifies we have and what's already been constructed, I would ask you, when you consider your recommendations, to look at the preserve area issue and the access relocation issue separately from the square footage request and perhaps you could recommend one, but not the other. CHAIRMAN STRAIN: Bruce, you might want to suggest a continuance and come back with something a little cleaner after this is done, to gel down, because, I mean, I'm not here today to sort those kind of details out. MR. ANDERSON: Okay. COMMISSIONER MURRAY: I agree with that. CHAIRMAN STRAIN: But that's up to you. And if I don't hear that in two seconds, we're just going to close the public hearing and go forward. MR. ANDERSON: We can talk about that. We'll request a continuance, please. Thank you. CHAIRMAN STRAIN: Okay. I think, Mr. White, do we need a motion for a continuance? MR. WHITE: I believe that would be more appropriate, Mr. Chainnan. COMMISSIONER MURRAY: I would so move. CHAIRMAN STRAIN: Petitioner has requested a continuance. Is there a motion -- there's been a motion by Mr. Murray to -- COMMISSIONER ADELSTEIN: I'll second. CHAIRMAN STRAIN: Seconded by Mr. Adelstein. Any discussion? MR. WHITE: Yes, if I may, Mr. Chainnan. CHAIRMAN STRAIN: Go ahead. MR. WHITE: I don't know that the applicants have any idea as to when they might be able to address the concerns you've raised, and the options they may desire to have you consider at some future meeting, but if at that point in time, a date certain is known, it may Page 110 November 17,2005 make things a little more expeditious for the staff in tenns of getting this in front of you, and doing so without the necessity of additional advertising. So I don't know that those facts are ones that we're aware of, but MR. ANDERSON: Is there a specific time frame that we have to stay within to not have the readvertising? MR. WHITE: I believe it's five weeks. MR. BELLOWS: That's correct. MR. ANDERSON: Okay. We would-- MR. WHITE: My point is that we would have to know when that meeting was that we were continuing this to in order to not have to advertise, even if it was within the five weeks. CHAIRMAN STRAIN: Bruce, my suggestion is that you try to figure out a way to solve the traffic problems. MR. ANDERSON: Yes. CHAIRMAN STRAIN: That may not be able to be done in five weeks. MR. ANDERSON: Well, that will take years. CHAIRMAN STRAIN: Well, then you might want to consider phasing requests and things like that. So I would just -- MR. ANDERSON : We're certainly open to that, yes, so we'll -- when we come back to your -- CHAIRMAN STRAIN: Are you going to be able to do it-- MR. ANDERSON: -- second meeting in December, and just pick that as the date. MR. WHITE: That would be the 15th? CHAIRMAN STRAIN: Yes, it is. MR. WHITE: That would, I believe, meet the timing requirement of the five weeks, and the requirement for a date, place, time certain. CHAIRMAN STRAIN: So this meeting will be continued on Page III November 17,2005 this issue to December 15th. MR. WHITE: Yes. COMMISSIONER MURRAY: Could we include updating of infonnation on the traffic matter? CHAIRMAN STRAIN: That's what this is all about. COMMISSIONER MURRAY: I'm talking about the -- okay. CHAIRMAN STRAIN: Will the motion maker accept a continuance to a date specific on December 15th? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Mr. Murray, will the second accept that? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: Second by Mr. Adelstein. Now, is there any further discussion? COMMISSIONER SCHIFFER: Mark, shall we discuss all of the concerns we have? I mean, I have a -- CHAIRMAN STRAIN: We're closing the public hearing, so I thought that you were done. Nobody else had any questions. COMMISSIONER SCHIFFER: I expressed it a little bit, so I think it's on the record. MR. WHITE: Not to delay the proceedings, but it may be advantageous both for the commission as well as the applicant to know what those are so that all of you are on equal footing. CHAIRMAN STRAIN: Right. I thought those were expressed already through the last hour we've been talking, but -- COMMISSIONER SCHIFFER: I discussed it. It was the planning concept of this being a strip mall versus the mixed use that the original one was. CHAIRMAN STRAIN: I think you made that -- I understood it. I'm sure that Bruce, in his astuteness and all he's been doing in this county probably understands, it, too. Okay. Hearing no other discussion, all in favor of the motion to Page 112 November 17,2005 continue, signify by saying aye. Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: Anybody opposed? (N 0 response.) CHAIRMAN STRAIN: Okay. That motion is passed. Now, we have one more project left. I can't see it taking too long. We can continue and not have to come back after lunch, or we can take lunch. What's the pleasure of the board? COMMISSIONER MIDNEY: Lunch. COMMISSIONER VIGLIOTTI: I would like to finish it. CHAIRMAN STRAIN: I would like to finish it. COMMISSIONER ADELSTEIN: I'm the one that's got troubles. CHAIRMAN STRAIN: Let's go ahead then and finish it, and that means we may not need a court reporter at 1: 00. The next petition is PUD ZA-2005-AR-7403. All those wishing to speak on behalf of this project please rise and be sworn in. (Speakers sworn.) CHAIRMAN STRAIN: Thank you. Disclosures on the part of the planning commission. Hearing none from the members, I had spoke to Mr. Fernandez about this project. I can't remember every single detail we talked about, but I'll be reiterating them here today, so. And with that, we'll ask the applicant to continue with his presentation. MR. FERNANDEZ: Good early afternoon. Michael Fernandez Page 113 November 17,2005 with planning development, representing the applicant. This is a rezone to essentially change an existing hotel to a residential use. It's a PUD that has not been financially successful, and the developer is seeking an alternative use that would be successful. He believes he's found that in tenns of doing a residential development within the existing hotel. The existing hotel has 105 units. Our application was for 64 units or 16 units per acre. However, in our reevaluation to -- and our ability to accommodate those units, I can tell you now, that we're willing to accept 14 units an acre or 56 units, total, because the 64 just is not viable with our proposal. Additionally, there was a neighborhood meeting. There was a request at that neighborhood meeting for insulation of the concrete component six-foot wall along our rear property line where it abuts single- family homes. At the time, we weren't sure we would be able to accommodate it. As it turns out, although there are utilities within the existing buffer area, the easement is actually on the adjacent properties. We've talked to the utility companies. Weare able to accommodate that concrete component wall fence and will basically remove the existing chain link fence and replace it with the concrete component wall. In tenns of impacts, I believe what we're creating is a more compatible project with our adjacent neighbors. One of the concerns, one of the other concerns of our neighborhood was the amount of noise that comes from our facility . We are not representing the hotel directly in this case or the restaurant. The restaurant will continue to be an on-site use. However, by having a residential component, I think you'll see greater policing of any kind of noise impacts that currently negatively impact the residential neighborhood to the south of the project. The project is within an activity center, which is intended to be a Page 114 November 17,2005 mixed use. So we think it's a very viable development and one that is deemed most consistent with the growth management plan. If you have any questions, I would be happy to address them. Yes, sir. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: I note that the existing restaurant on site is not co-sponsoring the proposed amendment. However, that's fine, but do they object to this, because the impact on their parking is, from what I gather, somewhat significant. MR. FERNANDEZ: Actually, we will be accommodating all of the parking to the SDP standard requirements. There was a request for some clarification to make sure that they were on board both from Mr. Strain and also from the county attorney's office. We have now provided that documentation to the county attorney's office, representing that the restaurant has given us full authority to represent their interest in tenns of the PUD. And they were also -- had a representative at the neighborhood meeting, and at that time also indicated they had no obj ection to what was being proposed. COMMISSIONER MURRAY: So they are comfortable with the parking and you folks will facilitate that? MR. FERNANDEZ: Yes, sir. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Mr. Fernandez, has the county attorney reviewed -- I got the document from you, and I will make sure it's provided as -- turned into evidence today -- concerning the common ownership or the -- I forgot what it's called, but the ability for the restaurant signing in and agreeing to this, have you seen the document? MR. WHITE: I think what you are referring to, assistant county attorney Patrick White, the idea of unified control, and yes, I have seen those -- well, I don't know that I've seen these, but I have seen documents that were provided as of yesterday, and they were adequate Page 115 November 17, 2005 from my perspective to demonstrate that there was unified control of the entirety of the lands that are the subject of this application, as well as an appropriate statement that Mr. Fernandez and his finn are the authorized agents. MR. FERNANDEZ: Mr. Strain, just to clarify, there was an additional comment from the county attorney's office to the fonns that we provided you directly, and that was a clarification on title. We had those reissued by the restaurant representative, authorized representative, LLC, and we transmitted, and Mr. White's review is of the latest ones that we submitted yesterday. CHAIRMAN STRAIN: Thank you. MR. WHITE: I'm sorry, Mr. Chainnan. And although I have no objection to you submitting this to the court reporter for inclusion as part of the record for today's proceedings, my understanding and suggestion to the staff was that Mr. Fernandez's finn would provide the originals of those executed instruments to Mr. Bosi for inclusion as a supplement to the application, and they would also, at that point, be part of the staff side official record for this project. MR. FERNANDEZ: Mr. Chainnan, the representative basically represented to us that they were overnighting it. So we expect to have that, if it has not already arrived in our offices sometime today, and we'll deliver that original either today or tomorrow to staff. CHAIRMAN STRAIN: I have no problem with that. In fact, I would rather we not get into the package I gave you, then, because we're going to get a newer original than what I have. MR. FERNANDEZ: It was just a -- MR. WHITE: I have some other materials for you here, and I'll just give them to you after the meeting. CHAIRMAN STRAIN: I have some for you, too. MR. WHITE: Great. CHAIRMAN STRAIN: Reading for the weekend. Are there any questions of the applicant at this point? Page 116 November 17,2005 COMMISSIONER SCHIFFER: I do. Just to clarify what the parking requirement is, you could do an analysis, but it winds up saying that it could not be realized and -- MR. FERNANDEZ: I think the analysis was done by staff. Basically, we have to live within the boundaries of what the site development plan or the LDC requirements are. We're not asking for a deviation for the parking requirements. So for the restaurant, for instance, I believe it's one per 80. For the hotel or for the new residential, it's based on, depending on the number of bedrooms that win be in each individual unit, and we're comfortable that we'll be able to meet that. If we're unable to meet that, the parking requirements, then we won't be able to support the 56 units that we're now proposing to do. COMMISSIONER SCHIFFER: Aren't you proposing 64? MR. FERNANDEZ: We are happy to reduce that. Our analysis shows that we won't realize enough support for infrastructure for the 64. So we're able to reduce that today, at your pleasure, to the 56. COMMISSIONER SCHIFFER: And as you calculate it, the restaurant, you are going to abandon the reduction that was in the original PUD? MR. FERNANDEZ: That's correct. In the original PUD, there was a 50 percent reduction because of those -- associated with the hotel. That's lost. We have not requested a deviation from the land development code. So it's incumbent upon us to meet the straight LDC standards for parking. COMMISSIONER SCHIFFER: Thank you. MR. FERNANDEZ: You're welcome. CHAIRMAN STRAIN: Mr. Adelstein. COMMISSIONER SCHIFFER: These spaces, you've supposedly said, in your document, it would be 175 spaces, parking spaces for both yours and the restaurant; is that correct? MR. FERNANDEZ: I don't recall that. I think that's in the Page 11 7 November 17, 2005 analysis that staff did. So I don't know the numbers. There's -- we still haven't identified all of the units, if they are one bedroom, two bedroom. That will affect our parking counts as well, but it's incumbent upon us. If we don't have enough parking to support, then our SDP will only be for lesser numbers than we're asking for today, but at this time, we anticipate it will be 56 units in addition to the restaurant. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: And this is in honor of Ken's, since he's not here, he would do this, the owner is Michael, what is it Cassus? Is he 100 percent owner, or is he president, registered agent, and there's other owners? MR. FERNANDEZ: I believe he is the sole owner of the hotel condominium that was now going to be residential. COMMISSIONER SCHIFFER: Okay. MR. FERNANDEZ: I don't know, in the future facility, in the redevelopment, if he'll be the singular owner or not. COMMISSIONER SCHIFFER: Thank you. MR. FERNANDEZ: Yes, sir. CHAIRMAN STRAIN: Mr. White, did you have something? MR. WHITE: No. CHAIRMAN STRAIN: Oh, I'm sorry. Any other questions? Well, I do. MR. FERNANDEZ: Yes, sir. CHAIRMAN STRAIN: The restaurant is 5,500 square feet currently. The staff report and your TIS are asking for 8,000 or suggesting as being -- has the potential to go to 8,000 square feet, and the staff report and the PUD says it has the potential to go to 10,000 square feet. The staff report can't be wrong, because they've got one or the other. The TIS has got to be wrong or the PUD has got to be wrong. What is it you are going to? Page 118 November 17,2005 MR. FERNANDEZ: The request is for 10,000 square feet. Again, right now, if you were trying to accommodate all of that square footage, that was our agreement with the restaurant, so they have a chance to redevelop. The restaurant will depend on the amount of space that it allocates between eating areas and back room areas, depending on those kind of parking ratios. So there is that possibility that they could modify their restaurant in the future to a different configuration that -- which would have different parking requirements. CHAIRMAN STRAIN: That was a good choice to reduce the density down to 14, because the difference in the TIS would have negatively impacted the trip rates, but now with your reduction in units, it's going to be positive, so I don't see a problem there. The rest of the questions, I think I have are of staff. So just let me double check here. There is a sidewalk that apparently is on your property that meanders in front along Pine Ridge. MR. FERNANDEZ: Yes, sir. As part of the original approval, we basically took the sidewalk that was out in public right-of-way and placed it within our property so that it wouldn't be immediately adjacent to the roadway. Better for the public and better for patrons of our facilities. CHAIRMAN STRAIN: I agree. Better move. I just want to make sure there's been an easement issued to the county for that sidewalk. MR. FERNANDEZ: Yes, sir, I believe there has been with the original SDP. CHAIRMAN STRAIN: Okay. That's all of the question I've got. Thank you. MR. FERNANDEZ: You're welcome. I reserve the right to answer any other questions if they arise, or to address any issues that come up. Thank you. Page 119 November 17,2005 CHAIRMAN STRAIN: There's a lot of public here to speak. Mr. Bosi? MR. BOSI: Mike Bosi, zoning and land development review. As part of the direction of the county attorney's office, Mr. White assisted me in making sure that there was unified control of the property, and yesterday, received a copy of the letter of acknowledgement and authorization from the condominium owner, and so far, it satisfied Mr. White's concern. For the benefit of the planning commission, if you may not recognize Mr. White, he's your esteemed gentleman to the right with the beard, it's a recent addition. CHAIRMAN STRAIN: That's a little couple day growth. This is a beard. MR. BOSI: In staffs evaluation, we found the petition, obviously, consistent with the growth management plan with the mixed use activity center designation. The one thing I will say about this segment of Pine Ridge Road between Goodlette-Frank and u.s. 41, with the adoption of Goodlette Corners, which is to the immediate east of this property, the existing residential structures and older strip plaza has been removed, and there is going to be a lot of new commercial development that is going to take place on that segment between Goodlette-Frank and u.s. 41. Staffs view of the transition from the transient motel/hotel units to the residential units, staff feels that this residential unit will provide more of a stabilizing force within the newly really heavily populated commercial area. So we think it's going to be a good mix of commercial and with this residential, and with that, we have offered our support of the petition. The one area where we had diverged from the applicant was related to the B 1 landscape buffer identified within the PUD document. The B 1 landscape buffer was the southern property boundary of the PUD with the residential units to the south. Page 120 November 17,2005 At that neighborhood infonnation meeting that we held in, I believe it was June 5th of this year, one of the main concerns of the residents was the lights that, at night, would shine through the landscape buffer and disrupt the individuals from their enjoyment. So staff had recognized and conveyed that, at that time, a landscape buffer would be imposed by the land development code of a concrete wall. Mike, Mr. Fernandez has indicated that the applicants are willing to make that change. We will have to make -- we will have to make the modification to the PUD document that will go before the board of county commissioners to reflect that a chain link fence is not going to be what is contained within the B 1 landscape buffer, but, indeed, a concrete, opaque masonry wall as required by the land development code. With that, I'll open myself up to questions that the commission may have. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Interconnectivity is the question. I notice to the south there is the drive there, and it appears there's connectivity, and then it looks like Goodlette Corners or it says undeveloped commercial, I'm not sure if that's Goodlette Corners. Has any attempt been made, or are you aware of any attempt that's been made to try to effect interconnectivity with that easterly PUD there? MR. BOSI: Actually, right before I got up, I stood up to speak, Don Scott came over and indicated that he has been currently in discussions with the property owners within Goodlette Corners, and they are requesting that a potential future interconnection, and let me skew the master plan so I can show you where it's at. One second, please. If you pay attention -- the visualizer, right where the hand is, this is where Don had indicated he would like a minor modification to the Page 121 November 17,2005 master plan to show for a potential future interconnection with the Goodlette corner commercial PUD, to be able to facilitate an internal flow of traffic that will better facilitate, better facilitate the vehicle movement into the entire area. I believe that that -- like I said, that happened five or ten minutes before I got up to speak. So yes, Commissioner Murray, transportation staff is working diligently on trying to establish that interconnection. COMMISSIONER MURRAY: Super. Thank you. CHAIRMAN STRAIN: Any other questions of the staff? Hearing none, that's fine. Mr. Fernandez, you got something to rebut? Not much was-- MR. FERNANDEZ: Not to rebut, but actually, one of the stipulations of the SDP that we do presently have was for an interconnection. It's proposed to be that exact extension. So that's your provision. If you want to add it to the PUD, we have no objections to that, being that possibility for interconnection is already part of the SDP as it exists. CHAIRMAN STRAIN: Okay. Ray, is there any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: Okay. We'll close the public hearing. I'll entertain a motion. COMMISSIONER ADELSTEIN: I move that AR-7403 be forwarded to the board of county commissioners with recommendation of approval. COMMISSIONER MURRAY: I'll second. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by Commissioner Murray. Any discussion or stipulations? The stipulations I can suggest, that the density be reduced to 14 units per acre with a maximum not to exceed 56 units; that the wall Page 122 November 17, 2005 along the south property line be a six-foot concrete wall, and that the language involving the interconnection that's been submitted by way of the SDP be incorporated into the PUD. COMMISSIONER ADELSTEIN: I'll accept those. CHAIRMAN STRAIN: Do the motion maker and the second accept those? COMMISSIONER ADELSTEIN: Yes. COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Any other discussion? All those in favor, signify by saying aye. Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN STRAIN: All those opposed? (No response.) CHAIRMAN STRAIN: Motion passes 8 to O. Thank you. We're almost done. Old business? Wish to let everybody know, if you haven't read your E-mail, that Mr. Abernathy's services are going to be held on Saturday, the 19th, at 2:00, at the -- is it the First Episcopal Church -- St. John's Episcopal Church on Park Shore, just west of U.S. 41. No new business, except Mr. White, we sure do thank you for all of your help with us. We're going to sincerely miss you, sir. (Applause.) MR. WHITE: You'll have to put up with me, I believe, on the 1 st as well. The 2nd of December is my last day. CHAIRMAN STRAIN: I wasn't sure you were going to make it Page 123 November 17, 2005 here on the 1 st, but I'm glad you are -- MR. WHITE: Absolutely. It's an LDC amendment in the afternoon. How could anybody want to miss that? CHAIRMAN STRAIN: There is no public comment, obviously. Discussion, agenda addenda, that's done. Motion to adjourn. COMMISSIONER ADELSTEIN: So moved. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Motion is made and seconded. All in favor? Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER ADELSTEIN: Aye. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:27 p.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chainnan Page 124