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CCPC Minutes 02/16/2006 R February 16, 2006 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, February 16,2006 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark P. Strain Tor Kolflat Brad Schiffer Paul Midney Donna Reed Caron Robert Vigliotti Russell Tuff Lindy Adelstein (Absent) Bob Murray (Absent) ALSO PRESENT: Kay Deselem, Principal Planner Jeff Klatzkow, Assistant County Attorney Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, FEBRUARY 16,2006, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED IO MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - DECEMBER 15,2005, REGULAR MEETING 6. BCC REPORT- RECAPS - JANUARY 10,2006, REGULAR MEETING; JANUARY 24, 2006, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. Petition: BD-2005-AR-8642, John Phillips, represented by Turrell & Associates, is requesting a 32-foot boat dock extension from the allowed 20 feet for a protrusion of 52 feet into the waterway. The subject property is located at 224 Malibu Cove, Southport on the Bay Unit 1, Lot 21, Section 6, Township 48 South, Range 25 East, Bonita Springs, Florida. (Coordinator: Joyce Ernst) B. Petition: VA-2005-AR-8616, Daniel Hamilton, represented by Davidson Engineering, requesting an after- the-fact variance for a single-family home currently under construction. The proposed project name is Pocchi Variance. The house encroaches 2.5 feet into the required 37.5-foot front yard setback on the southern side of the property. The subject property consisting of 2.58 acres, is located at 4625 30'h Avenue S.E., in Section 28, Township 49 South, Range 28 East, Collier County, Florida. (Coordinator: Carolina Valera) 1 . ~,-,~---~._~ - - - -..---.,---- C. Petition: V A-2005-AR-8693. Eberhard Thiermann, represented by Richard D. Yovanovich, of Goodlette, Coleman, & Johnson, P.A., is requesting a variance from the required 10-foot rear setback for a pool and screen enclosure of 3.2 feet in the RSF-3 zoning district. The subject property is located at 117 Channel Drive, in Section 29, Township, 48, Range 25, Collier County, Florida. (Coordinator: Heidi Williams) D. Petition: PUDZ-A-2004-AR-6283. Lely Development Corporation represented by Vincent Cautero, AICP, of Coastal Engineering Consultants, Inc., requesting a rezone from the PUD zoning district to the PUD Planned Unit Development known as Lely Barefoot Beach PUD by revising the PUD Document and Master Plan to show a change with Tract "J" from a utility site to a residential development site and formatting changes to the Pun document bringing it into conformance with County requirements. The property, consisting of 461.65 acres, is located in Sections 5, 6, 7 & 8, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Melissa Zone) RESCHEDULED - NEW HEARING DATE TO BE DETERMINED 9. OLD BUSINESS - Discuss issues raised by Brad Schiffer regarding Bayshore Gateway Landscaping - LDC amendment 10. NEW BUSINESS - Workshop discussion for Higher Regulatory Criteria additions to the Flood Damage Protection Ordinance 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 2-16-06/CCPC AgendaIRB/sp 2 February 16,2006 CHAIRMAN STRAIN: The court reporter called in sick apparently. And when one court reporter's sick, it appears that there's no way anybody can replace that person, so we will be moving forward without a court reporter today. Instead the meeting will be videoed, and there would be a transcript of the meeting made off the video. So with that in mind, let's move through the agenda. And one thing that has changed is Commissioner Paul Midney is here now. And the other thing is today's Thursday, not Friday, as I had mentioned earlier. I was hoping. Wishful thinking. Item #3 ADDENDA TO THE AGENDA CHAIRMAN STRAIN: Addenda to the agenda, are there any? (No response.) CHAIRMAN STRAIN: Hearing none, I'll make a motion to approve the agenda. COMMISSIONER TUFF: Second. CHAIRMAN STRAIN: All those in favor? COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Motion carries. Item #4 Page 2 February 16, 2006 PLANNING COMMISSION ABSENCES CHAIRMAN STRAIN: Planning Commission absences. As you all know, we have our regular meetings on the first and third Thursday of March. We also have a meeting for the EAR, a special meeting scheduled for the 8th and hopefully finishing on the 9th of March, or on the 8th if we are lucky enough. I just want to make sure you're all aware of that. Does anybody know they're not going to be here for any of those meetings? COMMISSIONER MIDNEY: The 8th at what time? CHAIRMAN STRAIN: Okay. Kay, are we starting at 8:30 or 9:00 in the morning; do you know? MS. DESELEM: I'm not certain. COMMISSIONER MIDNEY: I won't be able to be there. CHAIRMAN STRAIN: You won't be able to? COMMISSIONER MIDNEY: No. CHAIRMAN STRAIN: So it doesn't matter about the time, right, Paul? COMMISSIONER MIDNEY: No, not to Wednesday mornings. CHAIRMAN STRAIN: Okay. I can tell you in a minute. I've got it written down here somewhere. No, I don't. COMMISSIONER TUFF: I thought it was an evening meeting. COMMISSIONER MIDNEY: At some point, Kay, would you verify the report if you could before today's meeting is over, what time on the 8th we're starting? MS. DESELEM: I will do so. CHAIRMAN STRAIN: There is a discussion or an email sent out to us that we'd possibly receive some of our agenda item material at today's meeting for that meeting. Maybe that will tell us if that actually happens. MS. DESELEM: That's my understanding that somebody from Compo Planning is going to be bringing you packets. Page 3 _ _ '_'~___m'._ _"__'__ February 16,2006 CHAIRMAN STRAIN: Okay. We'll find out then later on today. Item #5 MINUTES OF THE DECEMBER 15,2005 CCPC REGULAR MEETING CHAIRMAN STRAIN: The approval of minutes from December 15th regular meeting. COMMISSIONER TUFF: Move we approve. CHAIRMAN STRAIN: Motion made to approve by Commissioner Tuff. CHAIRMAN STRAIN: Is there a second? COMMISSIONER MIDNEY: Second. CHAIRMAN STRAIN: Second by Commissioner Midney. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Item #6 Page 4 February 16,2006 BCC-REPORT-RECAPS- JANUARY 10,2006 REGULAR MEETING, JANUARY 24, 2006 REGULAR MEETING CHAIRMAN STRAIN: BCC report and recaps. Kay was nice enough, because of the quantity of issues recently in front of the board since our last meeting, to summarize them in a handout sheet today. That makes it pretty clear. Are there any questions concerning the BCC recaps at this point? (No response.) CHAIRMAN STRAIN: Okay. Item #7 CHAIRMAN'S REPORT CHAIRMAN STRAIN: Hearing none, we'll move on to the chairman's report. There's been a lot of things happening. I did have some items I wanted to discuss, but I'm not prepared to have done -- I haven't done the research I need to follow up. I'll continue that discussion I was going to have to next month. Item #8A PETITION BD-2005-AR-8642 CHAIRMAN STRAIN: So with that, we'll move into the advertised public hearings. First petition is petition BD-2005-AR- 8642. All those wishing to speak on this matter, please rise to be sworn m. (The speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Are there any disclosures Page 5 February 16,2006 on the part of the Planning Commissioners? (No response.) CHAIRMAN STRAIN: Hearing none, we'll ask the applicant to make their presentation. MR. SCOFIELD: Good morning, Rocky Scofield, representing the applicant, Dr. John Phillips. This is a boat dock extension request up in the South Port subdivision, up in Lely Barefoot Beach, and Jeffs going to hand out some aerials. It's going to help you follow along here with me. CHAIRMAN STRAIN: Before we move into further discussion by the applicant, everybody's received these three pages of aerials. Is there a motion to accept those into evidence? COMMISSIONER TUFF: So moved. CHAIRMAN STRAIN: Motion's been made by Commissioner Tuff. Is there a second? COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Seconded by Commissioner Vigliotti. All those in favor? COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Anybody opposed? Item in evidence. Thank you, Rocky. MR. SCOFIELD: Okay. On the overhead, there's a location map of where this project -- of the property's located. It's on San Mateo Drive. It's on the point there. It's located right here. This subdivision is Southport on the Bay. Right across from there on this side, the south side of this cut, this little bay here is the Page 6 February 16,2006 Bayfront Gardens area. And the large water body is -- that's Little Hickory Bay. This is the large scale. It's on the eight and a half by 11 I handed out to you. It shows the location of the proposed dock. And Little Hickory Bay, if you go all the way across the bay to the east, that is Little Hickory Shores. That's the end of 3rd Street West. An expanse of waterway there, the subdivision to the south there is Bayfront Gardens, and South Port on the Bay to the north. And that's the proposed location of the existing dock. This is just a blowup of Dr. Phillips' residence there on the point. And on the south side in the channel going in, there's an existing dock. When Mr. Phillips -- Dr. Phillips bought the house some time ago, that was an existing dock that was on the property, and it's been there all along. He now would like to have a dock to accommodate two vessels and boat lifts on them. Originally, he wanted to put them at this location of the existing dock. And when he -- some of the neighbors and people across the way verbally expressed to him that they would not like it there because -- they figured -- you know, they think it's going to cut down navigability in the channel going in there, especially -- I believe in the future across the way we're going to have -- I don't think -- it's not right at that area, but it's close to that proximity, there will be another dock going over there. There's only one. The neighbor to the south of Dr. Phillips has -- they're on the inside a little bit. But anyway, Dr. Phillips, not wanting to fight that battle, decided -- and I talked to him and we agreed to go on the other side on the wide part of the bay where all the other docks are, and chose not to obstruct any navigability, which I don't think it would. But anyway, that's where we are. So what we're doing today, we're asking for an extension, a 32-foot extension into Little Hickory Bay for a total protrusion of 52 Page 7 February 16,2006 feet. As you can see, a good portion of that, there's a large mangrove fringe with an overhang that goes up in. The mean high water line is landward of that mangrove fringe quite a ways, and we're coming out there. It's a natural shoreline, as all these are in that area. It's just a mangrove shoreline, very shallow near the shore. And the docks in this area -- this is a common extension, which I'll show you on this next aerial. That's the large one you got handed out to you, the 11 by 17. On this aerial we listed the protrusion of the docks into the waterway. On each ofthose docks, you can see the protrusions. All the way on the north end, it's to 77 feet. A couple of them are 56 feet, a 51, and the one just to the north of them is 40 feet out. And so this is a -- these are average -- these are the docks along Southport, San Mateo Drive on Little Hickory Bay. Those have all been permitted and granted two boat dock extensions. The -- we do have state and federal permits on this job. The state also, like the county, allows two slips per residence. And so two things we had to do to get the state permit. So the proposed dock -- if you look at -- this is a -- this is probably in your handout from staff on the permit drawings. On the north side of the dock, we had to -- we had to put railing. The state required railing. We're at 25-foot setbacks off the property line on the north side. Railing has to be installed as part of their permit on the north side of the dock to prevent mooring. They allow two slips. You can see there's two boat lifts there. Those are what's been permitted. Railing has to go along the north side to prevent railing (sic) there. And if you'll look on the south side over here where the existing dock is, railing has to be installed across the front of that dock to prevent mooring there. Page 8 February 16,2006 This is basically turned into -- Dr. Phillips never used that dock anyway except to pull up a canoe on. But anyway, railings has to be installed around there to prevent mooring in the future in order to leave that dock there that we used as just a sitting dock or a fishing pIer. And that's it. If you have any questions, I'd be glad to answer them. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: The question is really the riparian line coming off of that northern boundary. The survey shows it is running straight ahead, which is what my impression would be, yet your photograph where you've put it in shows it going essentially towards the east. And I think the concern here if it is as the surveyor shows it, you're building this on -- off your property. MR. SCOFIELD: Are you referring to the riparian line? COMMISSIONER SCHIFFER: Yes. MR. SCOFIELD: Okay. The riparian line always runs perpendicular to the thread of the channel. And if you were -- so if you run the line down the center -- COMMISSIONER SCHIFFER: Well, look at the sheet that you provided us that shows the survey. MR. SCOFIELD: On the survey? COMMISSIONER SCHIFFER: It's from Gregory Court (phonetic ). MR. SCOFIELD: Let me see your survey. Oh, no. I've got one. Okay. I know what you're talking about. COMMISSIONER SCHIFFER: Before we talk about the one that matters -- MR. SCOFIELD: Okay. COMMISSIONER SCHIFFER: -- if you look at it, he essentially extends his property lines. It's not that perpendicular -- if you look at the one that -- Page 9 February 16,2006 MR. SCOFIELD: On the survey? COMMISSIONER SCHIFFER: On the survey, on the channel on the left-hand side, he's not going to the nearest -- MR. SCOFIELD: Okay. I went over that with Court when I was doing this permitting. Court wrongly drew the riparian line. He had it coming straight off the -- off the property line extending out, which is incorrect. That's not the way riparian lines run. They run perpendicular to the thread of the channel. If -- so if you -- out here in Little Hickory Bay, if you drew a line down the center of the channel and you came 90 degrees off that to the property lines, that's what's represented in the aerials that I drew and handed out that are on the handouts to you. The -- it's just -- if you take this whole shoreline -- to explain that, look at this -- on your big -- the 11 by 17. If everybody's property lines were to come as a direct line off of their property lines, you would have lines crisscrossing and going all over, and it would be a mess. That's why the state rules on riparian lines run to the thread of the channel, not specifically off the property lines. Now, when you have a canal, a straight canal and a straight sea wall, yes, it comes straight off of those property lines. But riparian lines go perpendicular to the center line of your channel. That way everybody is granted access, because a lot of these lots are skewed, they're pie-shaped to the front and to the back, and some people on those situations would not have access. That's what riparian lines are for, they're to grant you access to your property, and that's why they run perpendicular to the thread of the channel and not necessarily as a continuation of the property lines. COMMISSIONER SCHIFFER: Well, here's the problem I have. We have a registered surveyor showing it one way, your testimony saying that the surveyor's confused. MR. SCOFIELD: And that's probably my fault, I understand. COMMISSIONER SCHIFFER: But I mean -- and the problem Page 10 February 16,2006 is, it's a serious issue. If, in fact, the surveyor's correct, and he's not here to testify, then you're building this on somebody else's property or you're building it off your property. The other problem is that the house to the north of you is really designed with its views looking down that shoreline. You're sticking this kind of in front of that view, obviously to get it out of your view, that little island. MR. SCOFIELD: There's no -- there's no view -- if you -- in my criteria, if you read there, when you're on this property line with the vegetation and it's -- and we're very, very far away from that lot. Look at the other lots up the ways there. Those boats are very close to the property line. We're -- we're double the distance away from -- any other boats are to their neighbors. And the vegetation, you can't even see this dock from their -- from their pool or from the house up in that area. If you're up in that area by the pool of that neighbor's house, next to the house, the vegetation along that shoreline, you cannot see that dock from there. And we're very far away. All these people in this area have similar docks, and they're a lot closer together than we are to the neighbor. COMMISSIONER SCHIFFER: Again, the riparian line, I think, is an issue, which I'll discuss with staff. MR. SCOFIELD: I understand; I understand that, and it's-- that's probably a mistake of mine, I did not correct it on the survey. When Court did it, I called him and told him that. I did not have him correct it. We did it on our drawings, and I -- I talked to him about it, and he said, that's fine. But I understand what you're saying. CHAIRMAN STRAIN: Do you have a corrected survey, Rocky, in your package somewhere you can -- MR. SCOFIELD: No, I do not. CHAIRMAN STRAIN: Okay. MR. SCOFIELD: But that's -- every -- everything -- every boat Page 11 February 16,2006 dock extension you've ever seen -- and we've done several in this area recently -- that's how all of the riparian lines run. CHAIRMAN STRAIN: And I don't doubt you. In fact, I'm working with some docks myself, so I know that what you're saying is true. The problem is that a document that is on record provided to us today doesn't correspond to what you're saying. MR. SCOFIELD: Okay. CHAIRMAN STRAIN: And that may pose a problem after we talk with staff, to a point where you may want to consider continuing this until the right documents can be resubmitted so the record's clean. That's possibly a suggestion as we get through with staff. MR. SCOFIELD: Okay. CHAIRMAN STRAIN: Okay. Any other questions of the applicant? COMMISSIONER SCHIFFER: I mean, I think that's a really good suggestion that might save a lot of time here, because it would be -- how could we ever approve a dock that's not on the property of the landowner as the surveyor, which is his job, is to show us where the property lines are, would show. But I do think that's -- this is a bit of a fatal flaw if we continue on. CHAIRMAN STRAIN: Well, I was going to see if staff had a possible document that might help, and if they didn't, then we can see what the applicant would like to do in response to your -- COMMISSIONER SCHIFFER: She's shaking her head no, so. CHAIRMAN STRAIN: Okay. MR. SCOFIELD: Okay. Is this -- okay. Can it be approved with a stipulation that the survey is corrected to show what I have presented to you today? Which I can guarantee it will be. Therefore, if it's not, then it doesn't go through. CHAIRMAN STRAIN: This is the final board. You don't go to the BCC with this. MR. SCOFIELD: I understand; I understand. Page 12 February 16,2006 CHAIRMAN STRAIN: Rocky, if -- I mean, I'm not sure how a couple weeks is going to cause a big problem in relationship to getting a dock built, but I think it'd be cleaner for the record, just so there's no confusion or questions in the future just to have the right document on file, have you come back before us and -- if you're willing to request a continuance. Otherwise we can continue on and you can take your chances with it -- MR. SCOFIELD: Okay. CHAIRMAN STRAIN: -- as it is today. MR. SCOFIELD: Then we need to ask the staff if there is -- what is the -- if there is a re-advertising cost in the cost for rehearing this. You know, I just -- I'd like to know that. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Can we just continue this, Mark? CHAIRMAN STRAIN: Well, let's just find out from staff so that the applicant can make the question if he so desires. MS. ERNST: For the record, I'm Joyce Ernst, from Planning and Zoning Review. As long as it's continued, you know, within -- I think it's five weeks. And I think if they put it on the next agenda that that would be fine and it would not have to be reheard (sic). CHAIRMAN STRAIN: Okay. Is there anything that you can shed a light on in any of your documents then that would resolve this issue, or is your document the same as ours? MS. ERNST: No. I have the same survey that Rocky showed. CHAIRMAN STRAIN: Okay. Before we go further then with today's testimony, Rocky, do you want to request a continuance of this for the next available meeting? MR. SCOFIELD: Yes, I would like, as soon as possible. CHAIRMAN STRAIN: Okay. Do we have to have a date specific, Mr. Klatzkow? MR. KLATZKOW: No. Page 13 February 16,2006 CHAIRMAN STRAIN: Okay. I'd only ask that staff work with the applicant to try to get this on the next meeting so that we don't run into additional advertising costs for the applicant. Is that -- that request has been made by the applicant. Is there a motion to accept that request? COMMISSIONER SCHIFFER: So moved. CHAIRMAN STRAIN: Move made by Commissioner Schiffer. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Seconded by Commissioner Vigliotti. All those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Motion carries. Thank you. Item #8B PETITION V A-2005-AR-8616 CHAIRMAN STRAIN: Next item on the agenda is petition V A-2005-AR-8616, Daniel Hamilton requesting -- representing by Davidson Engineering -- an after-the-fact variance for a single-family home under construction. All those wishing to speak on this matter, please rise and be sworn m. (The speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Are there any disclosures on the part of the Planning Commission? Page 14 February 16,2006 COMMISSIONER SCHIFFER: None. CHAIRMAN STRAIN: Hearing none, we'll move forward. Kelly, it's all yours. MS. SMITH: Good morning. For the record, Kelly Michele Smith with Davidson Engineering, and I'm here this morning representing Tony Pocchi of Pocchi Construction, who is the general contractor of the home on the subject property, and the property owner, Daniel Hamilton. We're requesting a two-and-a-halffoot after-the-fact variance from the required 37-and-a-halffoot front yard setback for a corner lot. As you can see on the aerial, the subject property is located on 30th Avenue Southeast, which is the northeast corner of the intersection of 30th Avenue Southeast and DeSoto Boulevard South. The subject property is zoned estates and is approximately 2.8 -- 2.58 acres in size. Both adjacent properties are also vacant and zoned estates. The contractor applied for a building permit to construct a single-family home for Mr. Hamilton, who is the stepson. The original building permit application included this site plan. As you can see, the site plan indicated that the house would be set back 65 feet from the center of the right-of-way, which is 35 feet from the property line. During the review, Mr. Pocchi was contacted by the Building Permit Department, by the reviewer, who requested that the site plan be submitted as an overlay on the survey. The error in the front yard setback on 30th Avenue Southeast was not mentioned at this time. As requested, Mr. Pocchi submitted the site plan overlaid on the survey. And as you can see on this site plan, unfortunately the architect incorrectly laid out the information and showed the 65-foot measurement as a setback from the property line. The site plan was approved and the building permit was issued. Page 15 February 16,2006 The Building Permit Department added a table listing the setback requirements for the subject property. Unfortunately, Mr. Pocchi believed that the front yard was the street frontage where the front door is and was not aware that by definition a corner property has two fronts and two side yards. Upon review of the lO-day spot survey, Mr. Pocchi was notified that the survey revealed a two-and-a-half foot encroachment into the front yard setback on 30th Avenue Southeast. Construction of the home has since stopped pending the outcome of today's variance request. With regard to the review guidelines for variances, I would like to address several of the points. First we believe that a literal interpretation of the Land Development Code will create a practical difficulty for the property owner, as the portion of the home that encroaches into the setback will be required to be demolished and rebuilt. Approval of the variance will not have a negative impact on the standards of health, safety and welfare, and the variance requested will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Because of the separation distance between the subject home and future homes on neighboring properties and the existing dense vegetation, we do not believe the variance requested will be noticeable by neighboring property owners or by people passing by the property. Further, the only property owner truly impacted by this variance request is the property owner. Mr. Pocchi acknowledges that he shares responsibility for the error; however, there were several stages prior to the submittal of the spot survey when this error could have been corrected. Unfortunately at this point it is the property owner who is suffering. Based upon the information in the staff report and the information presented today, we ask that you forward the variance as Page 16 February 16,2006 requested to the Board of County Commissioners with a recommendation of approval. I'd be happy to answer any questions. CHAIRMAN STRAIN: Are there questions of the applicant? Kelly, I have one. The architect, is it a local architect? MS. SMITH: No, sir. He's from the east coast, I believe. CHAIRMAN STRAIN: Okay. So could part of this have been the fact that he's not familiar with our codes? MS. SMITH: Quite possibly, yes. CHAIRMAN STRAIN: Is this particular code on MUNI Code, listed on the website? MS. SMITH: It's as -- a section of the definitions, the definition of yards is on the MUNI Code site, yes. CHAIRMAN STRAIN: Okay. Thank you. COMMISSIONER CARON: Kelly? MS. SMITH: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: You said that they have stopped construction on the house? MS. SMITH: Yes. COMMISSIONER CARON: Because there's a letter in here that says, go forward. MS. SMITH: They had -- they had requested permission to be able to move forward, and so they have that letter, but they have stopped construction. They wanted to be able to get the -- they were at a point where they needed to get the trusses off the ground and so they wanted to be able to proceed, obviously at their own risk, just to that point so that the trusses wouldn't rot while they were waiting to get through the vanance process. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) Page 17 February 16,2006 CHAIRMAN STRAIN: Hearing none. Thank you, Kelly. We'll have the staff report. MS. VALERA: Carolyn Valera, Principal Planner with Zoning and Land Development Review. After analyzing the guidelines associated with this variance petition, we have determined that there are no land-related hardships. But distance and the existing vegetation are, in fact, conditions that ameliorate the distance impact on this variance petition. We are recommending approval of this variance subject to the conditions that I noted in the staff report. If you have any other questions, I'll be happy to answer. CHAIRMAN STRAIN: Thank you. Are there any other questions of the staff? Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah. The -- and I think what happened is the architects -- and architects aren't used to really dimension lines of the center line of the road, and this guy didn't, and that's what can cause the confusion, but this right-of-way -- is that a dedicated right-of-way or is that part of their property now? MS. VALERA: It is -- it is a legal -- COMMISSIONER SCHIFFER: An easement. MS. VALERA: It's an easement. COMMISSIONER SCHIFFER: Okay. MS. VALERA: Yes. COMMISSIONER SCHIFFER: Because one thing, do you think one solution of this might be to actually have that dedicated at no expense to the county, and then that way any future architects would know exactly what to measure from and there would be no confusion? MS. VALERA: I will defer that to our legal department. CHAIRMAN STRAIN: You talking about all the roads in Golden Gate Estates? COMMISSIONER SCHIFFER: No, just this property. In other words, the -- Page 18 February 16,2006 CHAIRMAN STRAIN: I'm sure what that would -- MR. KLATZKOW: I'm not sure I understand what you're getting at, sir. COMMISSIONER SCHIFFER: What I'd like to do, as a condition of this, if we were favorable, would be the dedication of the roads and the right-of-way. MR. KLATZKOW: Well, we have the easement. I don't know that we want fee. COMMISSIONER SCHIFFER: The fee? CHAIRMAN STRAIN: Fee simple brings liability with it. It might be better just to leave it like it is. COMMISSIONER SCHIFFER: Okay. I mean, one of the problems we hear is the county going around buying up right-of-ways. Here's a chance where somebody wants something from us, so -- MR. KLATZKOW: But we have that. We have the ability to put the road in under an easement. COMMISSIONER SCHIFFER: Okay. So you would never want the right-of-way? MR. KLATZKOW: No, we have the right-of-way as an easement. We don't -- COMMISSIONER SCHIFFER: You never want it dedicated? MR. KLATZKOW: Well, it depends on the situation. At this particular point, there's no point in having the small strip of fee when the rest of the road's going to be easement. COMMISSIONER SCHIFFER: Right. MR. KLATZKOW: There's no benefit. COMMISSIONER SCHIFFER: Okay. MS. VALERA: And I should point out that there is a swale there, so I think, you know, that will further, you know -- if someone was to, you know, dedicate this -- I mean, I don't think it would be a good idea to get rid of the swale that, you know, that the county has there. Page 19 February 16,2006 COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Any other questions of staff? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: You mentioned, Carolina, that one of the ameliorating factors was the fact that this piece of property is so heavily vegetated. Does the county have any control over the vegetated density on this property? MS. VALERA: No, Commissioner. COMMISSIONER CARON: That's right. So they can build it -- MS. VALERA: It is the existing vegetation. COMMISSIONER CARON: To make the -- MS. VALERA: Yes. And that vegetation -- COMMISSIONER CARON: And then it could be a visual blight on the neighborhood? MS. VALERA: Yes, more so than the vegetation is just the principal ameliorating factor. COMMISSIONER MIDNEY: As the follow-up to that, is it possible or has it ever been done where we put a condition about maintaining the vegetation? CHAIRMAN STRAIN: Before we go that far, is the vegetation that you're referring to on the side of the house that is facing other neighbors? Doesn't that side have the proper setback? MS. VALERA: No. The vegetation is -- to the side, yes, not to where the setback encroachment is to. So the encroachment is in -- closer to the road. CHAIRMAN STRAIN: All right. MS. VALERA: Yeah. I have some photographs -- CHAIRMAN STRAIN: Right. But I mean, if you -- the vegetation issue isn't going to change whether we were to approve this or -- MS. VALERA: No. Page 20 February 16,2006 CHAIRMAN STRAIN: -- if they had done it at 37 and a half feet because it -- COMMISSIONER CARON: It's a corner lot though. CHAIRMAN STRAIN: Right. I'm just wondering what difference it makes if we try to retain the vegetation. They have the proper setback to begin with. MS. VALERA: It won't make any difference. No, it won't make any difference. CHAIRMAN STRAIN: Okay. MS. VALERA: I have some photographs, if you would like to-- CHAIRMAN STRAIN: Anybody on the Planning Commission need to see the photographs? COMMISSIONER SCHIFFER: Are they different than what's in the packet? MS. VALERA: I have others, but no -- CHAIRMAN STRAIN: I bet they'd be colored. MS. VALERA: Right. CHAIRMAN STRAIN: Unless someone asks for them, I think we've got sufficient photographs in our packet, Carolina. MS. VALERA: Okay. CHAIRMAN STRAIN: Are there any other questions of county staff? (No response.) CHAIRMAN STRAIN: Okay. Is there any public speakers? MS. DESELEM: Yes. We have one registered speaker, Ted DeGroot. MR. DeGROOT: Good morning. Ted DeGroot, 231 Palmetto Dunes Circle in Lely. My wife and I own the property due east of this land. I have to say that I do not expect that there will be any problems with separation on a home on the land to the east from this home, but I am here today to recommend that you do not approve this request for two reasons. Page 21 February 16,2006 First of all, at about the time they were pouring the slab, I was in looking at my property, and I just looked at the slab and said, this looks like it's way too close to the road. That bothered me enough that I went to the -- down to Horseshoe and asked questions about the setback. And based on that information and the fact I really didn't have measurements, I said, oh, it's probably all right, just let it go. The next time I was out on the property, they were putting up the blocks. And I said, wow, that still looks like it's way too close. I went back to Horseshoe. I got really into the specifics on what the setbacks had to be, and it looked like it was right on the borderline; two-and-a-half feet, just based on what I saw, was not something I could tell. So I sort of let it go away because I figured I was probably wrong and I didn't have any easy way of actually measuring the distance. And then I found out that there was the problem then. The problem was noted at the spot check. At this point they have built the house. The blocks are up, the roof is on, it's done. So my second reason for suggesting that you do not approve this is simply because they do not believe that you are going to exert enough force to stop a project already underway, and I think that that's just not good for all of us. Thank you. CHAIRMAN STRAIN: Sir, I have one question. MR. DeGROOT: Yes. CHAIRMAN STRAIN: When you went down to the county and tried to find out about this problem -- I know you probably talked with the people in the county and staff members -- did you ever talk to the owner of the property or the builder out there to notify them that you had this concern? Were they aware of your concern? MR. DeGROOT: No. I -- you know, I wouldn't -- I really wouldn't know how to do that. CHAIRMAN STRAIN: Oh, I didn't know if they were on the Page 22 February 16,2006 site or not. MR. DeGROOT: No. There was never anybody there. CHAIRMAN STRAIN: Thank you. Any other questions? (No response.) CHAIRMAN STRAIN: Okay. Hearing none, we'll close the public hearing. I'd entertain a motion. COMMISSIONER TUFF: I move we approve the variance. CHAIRMAN STRAIN: With the recommendations of staff? COMMISSIONER TUFF: Yep. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Motion's been made to approve the variance with the recommendations of staff by Commissioner Tuff, the motion's been seconded by Commissioner Vigliotti. Any discussion? COMMISSIONER SCHIFFER: I mean, I'm still -- there's a 100-foot right-of-way on DeSoto Boulevard in the front of this thing. Some day the county's going to be going out there to buy it. Don't you think at this time we could maybe make some condition, whether it changed the right-of-way now or not, that would -- I mean, we're giving something to this landowner. He could give something back to the county. CHAIRMAN STRAIN: Well, Brad, they've got the right-of-way. I don't understand what you're trying to gain. MR. KLATZKOW: I'm sorry, sir. I misunderstood your earlier question. I thought you were talking about the other road. I understand what you're saying now. I think it's appropriate to put a condition on the variance that ameliorates the problem created. I think it's inappropriate to place a condition on the variance that doesn't -- and to require them to give this right-of-way I don't think really gets to the meat of the variance. Page 23 February 16,2006 It's more of -- it's more of asking him to sort of pay for the variance, and I'm not sure I'm comfortable with that concept. COMMISSIONER SCHIFFER: Well, here's why I propose it, and maybe with humor. But the architect made the mistake of not knowing where the property line was, which put us in this place now. So by us doing that, it would be very obvious in the future that the property line is on the edge of the easement or the right-of-way. Had he measured to that, we wouldn't be here today. Anyway, just trying to do the county's job. CHAIRMAN STRAIN: Well-- COMMISSIONER SCHIFFER: It's-- CHAIRMAN STRAIN: And I think it's not a -- your suggestion isn't unwarranted, Brad, I'm concerned that it might need more thinking out before we go that far from a legal perspective, and the transportation department's keeping track of its perspective in other issues. Maybe it's something that ought to be considered as -- in the future. But right now, I don't know how we could evaluate that with this two and a half foot request for a variance at today's meeting, so -- COMMISSIONER SCHIFFER: Well, the only way is that the -- obviously the builder, the architect, was confused over where his property line was. This would end that confusion. CHAIRMAN STRAIN: Well, or he could read the MUNI code and the LDC that's sitting there. That's the other opportunity -- COMMISSIONER SCHIFFER: But he didn't, and we're in the variance stage of the property. COMMISSIONER VIGLIOTTI: But Brad, this architect was not a local architect. He was from out of town, so that could have added to confusion, too. COMMISSIONER SCHIFFER: Well-- COMMISSIONER CARON: But that's not a -- COMMISSIONER SCHIFFER: Well, he's obviously not used to, you know, measuring to the center line of a road or from Page 24 February 16,2006 easements. He's used to measuring the property line. Anyway, that's CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: You guys can decide whether you want that as a condition or not. CHAIRMAN STRAIN: Okay. Let's tackle that one first. Does the motion maker wish to add that as a condition? COMMISSIONER TUFF: Uh-uh. COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: No. Neither does the second. Ms. Caron, did you have a comment? COMMISSIONER CARON: Yeah. I, of course, want to be on record here once again that I will not be voting for this variance. There is no land-related hardship. Any problems are due to the actions of the applicant, granting a special privilege, and on and on. You can go through every single one of the criteria involved here, and they don't meet a one of them, in my opinion. CHAIRMAN STRAIN: Okay. Any other comments? My comment is simply, I see no malicious intent here, no intent to subterfuge or anything like that, therefore, it's an honest mistake in my -- from what I can tell by the testimony provided today, and I would be voting in favor of the motion. With that said, all those in favor of the motion, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: All those opposed? COMMISSIONER CARON: Aye. Page 25 February 16,2006 CHAIRMAN STRAIN: One in opposition. Motion carries. Thank you. Item #8C PETITION V A-2005-AR-8693 CHAIRMAN STRAIN: Next item on the agenda is petition V A-2005-AR-8693, Eberhard Thiermann, represented by Richard Y ovanovich, a variance from a 10- foot rear setback for a pool enclosure. Before we get in -- would all those wishing to provide testimony in this matter, please rise, raise your right hand. (The speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Are there any disclosures on the part of the Planning Commission? COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: Hearing none, we'll ask that the applicant go forward. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich on behalf of the applicant. Mr. Thiermann is here with me to answer any questions you may have. I'm going to hand out an affidavit that Mr. Thiermann prepared. He's a little uncomfortable speaking but is available to answer questions. I will be going through everything that's in the affidavit. We just want to put that in the record, if that's acceptable. As your staff report indicates, this is a request for a 3.2- foot variance for a screen enclosure on the property. The property, I think, on your visualizer is parcel A, and it has been -- a home has been on that property since 1973. The pool and enclosure were originally constructed in 1976, and the pool and enclosure have been in the same location since 1976. Page 26 February 16,2006 The rear setback for the pool enclosure is 10 feet. The pool is actually set back 6.8 feet. Our client did not build the original home or the pool and enclosure. Our client purchased the property on August 15, 1993. At that time the pool and enclosure had existed for 17 years. In 2001 our client was considering renovating the home and was seeking bids on the various aspects of doing the renovations. He ended up acting as an owner/builder because this is in a FEMA area and you have to keep your improvements below 50 percent without having to bring the entire structure up to current code. Apparently one of the people who submitted information to my client, an aluminum store, took it upon themselves to apply for a permit for the screen enclosure. This was without my client's knowledge, without my client's authorization and, in fact, my client didn't even know about it until he received a letter from the county on February 23,2004, letting our client know that there was this permit that was out there that had been issued and had expired that he just had no knowledge of. On April 24, 2001, our client received a permit to renovate the home. As I mentioned, he was acting as an owner/builder, and he believed that the permit included all the renovations he contemplated. The plans included the location of the pool, included showing that it was an existing structure, included showing that it was 6.8 feet from the rear line. And let me show you the -- kind of the before picture of the screen enclosure. That's the screen enclosure in the before condition, and here is the screen enclosure in the after condition. The renovations included adding a second story to a part of the building and replacing the roof. In order to add the second story and replace the roof, the pool enclosure needed to be removed anyway because it was attached to the roof. That work occurred in front of county inspectors. The inspectors Page 27 February 16,2006 saw the enclosure being removed, saw the enclosure being replaced. Nothing was said. My client believed that he was okay. In fact, there was an incident when he was doing some work to the irrigation system and the inspector said, hey, that's separate, that's not part of your permit. You need to go get a permit for the irrigation system, and he did. So he was going along thinking he was in compliance. Everything was CO'ed in April-- April 25, 2002, including, the pool enclosure in its current condition was done at the time. You can see from the pictures that the enclosure's in the exact same location as it was originally built in 1976. The only real difference between this enclosure and the other enclosure is you have a little bit of a peak on the roof on the enclosure versus being flat. Weare requesting the variance to allow the pool enclosure to remain in the same location that it's been in for, you know, 30 years at this point without any objections from any neighbors or anyone in the area. Actually it was, you know, a couple years after the CO was received that my client was notified that he had an issue with the enclosure in the first place. Ifnecessary, our client will obtain an after-the-fact permit for the enclosure. It is our understanding that the pool is okay so there's no need to get an after-the-fact variance for the pool, so I think the resolution needs to be revised, because what it says is we need to get permits for both the pool and the enclosure. I think the pool's okay, so you need to strike the word pool in the resolution. I believe your staff agrees that we are in an unusual circumstance, that this pool and enclosure has been there for quite a while. We have no idea who built it in 1976 or how it got built. I think your staff report says there's some confusion with that. But as you can see, we didn't buy the house until 1993, so we really don't know that far back. Page 28 February 16,2006 We're okay with the staff -- limitations within the staff report as long as the resolution is clarified to eliminate the need to get an after-the-fact permit for the pool itself. And with that, your staff report's very complete, and we ask that you follow your staffs recommendation and forward this to the Board of County Commissioners with the recommendation of approval of the 3.2-foot variance for this pool enclosure. And with that, I'm available and so is my client to answer any questions. CHAIRMAN STRAIN: Before we go into questions, we have-- you provided us with an affidavit, two pages, from -- MR. YOV ANOVICH: It's really just one page. CHAIRMAN STRAIN: -- Eberhard Thiermann. Well, mine is two pages. I'd like to see ifthere's a motion to accept this into evidence. COMMISSIONER TUFF: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Tuff. Seconded by -- COMMISSIONER SCHIFFER: I'll second. CHAIRMAN STRAIN: -- Commissioner Schiffer. Any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Motion carries. Page 29 February 16,2006 COMMISSIONER VIGLIOTTI: I have -- CHAIRMAN STRAIN: Go ahead. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Is there any reason this wasn't submitted earlier with our packet? MR. YOV ANOVICH: Actually I wasn't -- I didn't get the staff report until yesterday, or two days ago, so I didn't know whether the issue of the earlier pool or this pool was actually going to be raised as an issue. I've had it. I've waited to see if it was going to be necessary. And that's why it was handed out so late. I didn't know if it was going to become an issue in the staff report. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Are there any questions of the applicant at this time? (No response.) COMMISSIONER VIGLIOTTI: I have another question. CHAIRMAN STRAIN: Go ahead. COMMISSIONER VIGLIOTTI: The picture we're looking at doesn't show a second floor. MR. YOV ANOVICH: That's because the issue's the pool, and I didn't bring the entire plans for the house. But if you're -- as you're facing it -- because you know how bad I am on directions, it's to your left. Whatever direction that is is where the second floor is on the home. CHAIRMAN STRAIN: Well, it better. To the right's in the canal, so -- MR. YOV ANOVICH: Well-- thank you. That's where it's located, yes. Heidi, do you have any pictures of the -- I didn't bring any pictures of the second story. CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: Mr. Yovanovich-- CHAIRMAN STRAIN: Commissioner Caron? Page 30 February 16,2006 COMMISSIONER CARON: -- you said that the renovation was not over 50 percent? MR. YOV ANOVICH: Correct. It was less than 50 percent, therefore, you know, only -- we did not have to bring the entire house up to current flood elevations. COMMISSIONER CARON: Then we'll have questions for staff on that issue. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yeah. I understand the width of the canal is 100 feet; is that correct? MR. YOV ANOVICH: I believe that's correct, yes. COMMISSIONER KOLFLA T: Okay. Thank you. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, do you have a survey that -- a recent survey? The ones in the packet all show single-story buildings for they're obviously -- MR. YOV ANOVICH: I don't believe we were required to get a new survey to show the second story, so I think -- do we have a more recent survey than the -- but the footprint of the building from the back of the house didn't change. While he's looking to see ifhe has it with him, are there any other questions? CHAIRMAN STRAIN: Did the boundary survey that's in our packet change at all? MR. YOV ANOVICH: No. CHAIRMAN STRAIN: Ninety-five -- so your footprint on the new survey would theoretically show exactly what's already in the packet? MR. YOV ANOVICH: It would in the rear. There were some improvements to the front of the house, but to the rear of the house, that didn't change. CHAIRMAN STRAIN: Okay. While he's looking for the Page 31 February 16,2006 survey, are there any other questions? MR. YOV ANOVICH: We don't have a survey of the new improvements. CHAIRMAN STRAIN: Brad, did you have any follow-up? COMMISSIONER SCHIFFER: No, that's it. I'm through. CHAIRMAN STRAIN: Okay. Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Hearing none, we'll move on to staff, thank you. MS. WILLIAMS: Good morning, Commissioners. For the record, Heidi Williams, Principal Planner with Zoning and Land Development Review. The variance requested today has been fairly well explained by the applicant. When staff reviewed the petition, it was found that the variance was consistent with the growth management plan by the fact that the use is something that is permitted in this district. The Environmental Advisory Council does not normally hear variance petitions; it did not hear this one. The subject property is located in an RSF-3 zoning district, and the lO-foot rear yard setback is -- noted by the applicant, is the one that would apply to this structure. The enclosure as described and as shown by the applicant does encroach 3.2 feet into that required yard, leaving a 6.8-foot yard. The original forming structure was built in the mid '70s and replaced by the present owner in approximately 2001. And staff does agree that this is in the exact same footprint as the original structure. The Land Development Code requires variances to be reviewed against eight criteria, and all of those are in the staff report. But I would note that it can be argued that replacing this -- the original structure with a new one could be -- could potentially decrease any Page 32 February 16,2006 risk to public health, safety, and welfare by bringing the structure up to current code for hurricane and be wind resistance, something that is a fairly important thing to consider in this area. The property is bordered by a canal on the north, that is -- that adds a 100- foot separation between this property and the neighboring one to the north. I will also note that Dennis Mazzone, who is a Code Enforcement Investigator for Collier County, is here today to discuss any of the history of the permitting. He's done some extensive research into this, if you'd like to hear from him. I received three letters of objection and 12 letters in support of this application. I did hand out -- I emailed the three letters of objection when I received those and provided copies today. I also provided the letters of support if you'd like to accept those into the record. The map that is being shown is -- I was -- it was requested of me that I show on the map visually where the properties were located in reference to the applicant's property. The -- what looks like the darkest property there is actually a blue highlight, and that's the subject property. The green highlighted properties are ones from which I received letters in support, and the red or pink highlighted properties are ones that I had letters of objection. CHAIRMAN STRAIN: Heidi? MS. WILLIAMS: Yes. CHAIRMAN STRAIN: We will-- I want to get those into evidence before you go any further. But just for the record, the three letters against seem to all be from the same group of people just with three different letterheads; is that a fair statement? MS. WILLIAMS: Well, they -- that is correct, but they do represent ownership of three separate lots. CHAIRMAN STRAIN: I know, individuals-- MS. WILLIAMS: Yes, you are correct. Page 33 February 16,2006 CHAIRMAN STRAIN: Individuals own lots though. Okay. With that, is there a motion to accept the letters of objection and the letters in favor of the project as evidence? COMMISSIONER VIGLIOTTI: I make that motion. CHAIRMAN STRAIN: Motion's made by Commissioner Vigliotti. COMMISSIONER TUFF: Second. CHAIRMAN STRAIN: Seconded by Commissioner Tuff. All those in favor, signify by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Okay. Evidence is accepted. Did you have further continuation of your presentation Heidi before questions? MS. WILLIAMS: Just to note that staff can accept the removal of the terminology that includes the pool in the resolution. That was an oversight that was probably carried through from the original application prior to complete review of the project. Staff does recommend approval of the variance with the three stipulations that are outlined in the staff report that essentially would require that variance to be limited to the existing structure as shown on the photograph, would not allow any further encroachments, and would require proper after-the-fact permitting fees and permits to be obtained, as well as certification that the structure as built meets the 2001 building code. CHAIRMAN STRAIN: Okay. Are there questions of staff? Ms. Caron, I know you had said you would have some questions, so Page 34 February 16,2006 why don't you start? COMMISSIONER CARON: Your staff report says the home renovation impacted over 50 percent of the home's value and, therefore, all structures were required to be brought up to then current code requirements. Is that incorrect? Page 3 of 9. MS. WILLIAMS: I believe -- yeah, I see -- I do see where it says that, and I believe that is a misstatement that the -- no, this was provided to me, and I do think that the renovations were less than 50 percent. I could defer, if you'd like, to Dennis Mazzone, who did a lot of the research on this particular property. He may be able to answer that for you. COMMISSIONER CARON: Good idea. CHAIRMAN STRAIN: Mr. Mazzone, if you're here, if you'd please address this issue. MR. MAZZONE: For the record, I am Dennis Mazzone, Collier County Code Enforcement investigator, 2800 North Horseshoe Drive. I believe the question is as to a 50 percent rule on reconstruction or renovation, and I'm not in the building industry. I'm an investigator for code. But it's my belief that we would be addressing the enclosure, which was, indeed, replaced at 50 percent. CHAIRMAN STRAIN: Maybe you aren't the person then that can answer the question. I think the question is, based on the staff report, if the home renovation as a whole was greater than 50 percent of the value of the home; is that something you can opine? MR. MAZZONE: I cannot answer that question. CHAIRMAN STRAIN: Okay. Thank you. COMMISSIONER CARON: Maybe you can, maybe you have research that -- the business of The Aluminum Store permit. MR. MAZZONE: I have, ma'am. COMMISSIONER CARON: Can you talk to us about that? Because it states here, again, that that permit was issued, and there it said the old pool enclosure will be brought up to today's standards. Page 35 February 16,2006 Now the applicant is saying, well, we never authorized The Aluminum Store to seek a permit. MR. MAZZONE: I cannot-- COMMISSIONER CARON: Not that I think that should make any difference, but -- MR. MAZZONE: Okay. I cannot speak to the relationship between the owner and the -- his contractor. If he, indeed, authorized that or not, I don't know. But I -- we do know that there was a permit 2001-021255 for replacing pool enclosure to today's standards, and that was obtained as to the permit by Mr. Thiermann on February 15, 2001. COMMISSIONER SCHIFFER: Isn't there an owner's signature required to a permit? MR. MAZZONE: Yes, there is, sir. COMMISSIONER SCHIFFER: Is his signature on that permit? MR. MAZZONE: I'd have to pull the permit out to take a look. COMMISSIONER SCHIFFER: Heidi, while you're -- while he's doing that, Heidi, can I ask you a question? You made a statement that you want to make sure that this complies with 2001's building code? MS. WILLIAMS: Yes, that's correct, because that's when it was constructed, and the building code has changed since that time. COMMISSIONER SCHIFFER: But it was constructed without a permit. So when somebody builds something without a permit, you'll allow them to go back and build it to the standards that existed when they weren't getting permits, yet the standards back then would have required a permit? MS. WILLIAMS: That is true. During the review of this application and in coordination with the building department, that was the language that was provided to me, was to make sure that it complied with the code at that time. COMMISSIONER SCHIFFER: At the time in which it didn't Page 36 February 16,2006 get a permit? MS. WILLIAMS: At the time that it was constructed. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Okay. Mr. Mazzone, have you found the permit application? MR. MAZZONE: I have. CHAIRMAN STRAIN: Green side up. COMMISSIONER SCHIFFER: On a Xerox machine. I guess yes or no, is there an owner's signature on it? MR. MAZZONE: The owner's signature is not on the permit. The applicant is the contractor. CHAIRMAN STRAIN: Doesn't owner -- isn't the owner required to allow a contractor to pull a building permit; do you know? MR. MAZZONE: I don't know the answer to that, sir. CHAIRMAN STRAIN: Okay. I'm just wondering if the builder can go down and just pull a permit without authorization from an owner. Be a little surprised if that was the case, so maybe we need to ask -- MR. MAZZONE: We're of the understanding that it would be required that they would get the owner's permission to pull the permit. CHAIRMAN STRAIN: That's my understanding, too. Are there any other questions of Mr. Mazzone while he's up at the podium? COMMISSIONER SCHIFFER: No, not ofMr. Mazzone. I have some for Heidi. CHAIRMAN STRAIN: Heidi's kind of still up. COMMISSIONER SCHIFFER: Donna, are you through? I'm sorry . COMMISSIONER CARON: Go ahead. COMMISSIONER SCHIFFER: Heidi, isn't it required to have a recent survey when we see these applications? In other words we're looking at a survey. It's still a single-story building, the work wasn't Page 37 February 16,2006 done. I mean, I don't doubt that it's probably exactly as shown, but how do we know that? MS. WILLIAMS: We do request that, and I did believe at the time that that was what was provided to us. And I can see now that that is the survey from when it was a one-story building. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: So staff would have required a new survey, but they wouldn't have checked to see if it was consistent with the new renovations that were at the home? MS. WILLIAMS: I'm sure I understand your question. CHAIRMAN STRAIN: Well, the survey that you -- we have in our packet is the only survey that's been received, and there have been renovations to the house that have modified possibly the footprint in the front, maybe not the back. Staff would never have gotten a survey to show that modification other than the one that we've got in our packet? MS. WILLIAMS: For this variance it seemed very clear that the -- that the enclosure was replaced on the existing concrete slab, and so when we noted that that was what was provided, it did seem to address the variance request. CHAIRMAN STRAIN: Okay. I understand why you provided it for us, because it does clarify the issue at hand today, but Brad's question about whether it should have been or wasn't on the survey seems kind of relevant too, so -- MS. WILLIAMS: I don't think -- I don't think that not having a survey from within a certain time precludes us from reviewing the petition. It is a request, but I don't think it prevents us from reviewing the petition. CHAIRMAN STRAIN: I would agree. I'm just trying to follow up on where he was going. Do we have any other questions of Heidi? COMMISSIONER SCHIFFER: No. Page 38 February 16,2006 CHAIRMAN STRAIN: Okay. MS. WILLIAMS: If! could clarify. Just one thought that has occurred to me about this language regarding the 50 percent renovation, I think the overall renovation of the home was less than 50 percent of the value, but the renovation of the screen enclosure was more than 50 percent of the value of that particular structure. And when you parcel them out in that way, that could be how this language got confused. COMMISSIONER CARON: But regardless, if that is the case, if it's over 50 percent, then it has to be brought up to current standards. MS. WILLIAMS: Yes. COMMISSIONER CARON: Correct? MS. WILLIAMS: And the current standard is a 10-foot setback. COMMISSIONER CARON: Correct. MS. WILLIAMS: Yes. COMMISSIONER CARON: Okay. Which they do not have? MS. WILLIAMS: Correct, and that's why they are here today. CHAIRMAN STRAIN: Well, but -- does the 50 percent rule that would have required the 10- foot setback apply if it's 50 percent of the entire home as a whole or 50 percent of just some piece, as in the case of a screen enclosure? MS. WILLIAMS: Staff feels that the screen enclosure was not consistent with the code at the time it was constructed originally or at the time it was replaced, regardless of the value of the replacement cost. CHAIRMAN STRAIN: Okay. Any other -- okay, Mr. Vigliotti. Oh, I'm sorry. Any other questions of Heidi before we finish with Heidi? COMMISSIONER SCHIFFER: Well, just one thing to make clear, Heidi, is that in this case, this is a property line that is on the face of the sea wall. I mean we've had other instances where the property line is in the waterway. But this one -- this sea wall was built Page 39 February 16,2006 exactly where the code wants it to be, which is the outside face of it on the property line. MS. WILLIAMS: Correct. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Okay. Thank you, Heidi. I think there are some questions of the applicant, Richard. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Rich, did anybody try and get a hold of The Aluminum Store Company and find out what happened? MR. YOV ANOVICH: I don't know. I didn't. Clearly what happened is they went and they applied for a permit, and there was no authorization of my client to go and do that. That's the testimony of my client. It's in his affidavit. And we didn't know about it until almost three years after it was issued. How that happens, I don't know. I don't think that's an unusual practice. I think contractors do apply for permits and represent that they're doing it on behalf of owners. In this case it was not on behalf of our client. We've been attempting to resolve this with Code Enforcement and your staff for quite a while. Weare here in good faith to attempt to resolve an issue that's been around since 1976. I agree with Heidi, you know, when we came through and we brought it up to the 2001 code, it was better than the screen enclosure that was built in 1976. Frankly, my clients wouldn't have bought the house if they didn't think they could have a pool enclosed like the house they purchased. Most people in Florida, not everybody, but most people in Florida like their pool enclosed to keep the mosquitoes out and to keep the bugs out. My client's no different. That's what they believed they bought. They thought -- they thought -- now hindsight's 20/20 -- they apparently were wrong. They thought that their original plans authorized the replacement of this screen enclosure. There were inspectors out there all the time. No one said Page 40 February 16,2006 anything, that they were doing anything wrong. And we are where we are. I mean, we have something that's in the exact location that it's always been and is really not hurting anybody. COMMISSIONER VIGLIOTTI: Two more questions. Seeing as The Aluminum Store Company caused all the problems, I'm just surprised no one ever tried to reach them or get a hold of them. MR. YOV ANOVICH: It didn't matter at that point. At my point where I am is, I've got to get a variance for a screen enclosure that was replaced. That issue doesn't matter. The screen was going to be replaced regardless, obviously because of the renovations we were doing. My focus was on, how do I get the variance? I'll deal with the other issue later. They applied, it was unauthorized, and I don't think there was any testimony to the contrary. COMMISSIONER VIGLIOTTI: I have one more question. How many feet on the inside of the cage to the water line of the pool? MR. YOV ANOVICH: You're going to be right on the pool edge if we were to move it in. COMMISSIONER VIGLIOTTI: On the edge. MR. YOV ANOVICH: Yeah. You may even be in a little bit into the pool. I went out there, and if you moved it in, you're in the water. It was about -- you know, I'm a golfer. I'm a golfer. If! were to take a step from the pool enclosure, I'm falling in. And I don't think my stride -- I know that that's not scientific testimony -- is longer than a yard. COMMISSIONER VIGLIOTTI: So the answer is, we don't know. MR. YOV ANOVICH: I don't -- I know it will be on the edge or in the pool. COMMISSIONER VIGLIOTTI: All right. MR. YOV ANOVICH: You won't have any room around the pool if you put -- Page 41 February 16,2006 COMMISSIONER VIGLIOTTI: On the back side? MR. YOV ANOVICH: On the side that's closest to the sea wall, you're not going to be able to have any room to move around. CHAIRMAN STRAIN: Are there any -- Commissioner Schiffer? COMMISSIONER SCHIFFER: Heidi, you can answer? MS. WILLIAMS: If I could just add, the correspondence provided to me regarding The Aluminum Store, in anticipation of questions along these lines, our administrator, Joe Schmitt, asked the Contractor Licensing Board to look into the matter. And the email provided to me, what they found, was that they -- and I can read it to you if you'd like. CHAIRMAN STRAIN: Go right ahead. MS. WILLIAMS: It says, Bill -- and I believe that refers to Bill Hammond with the Building Department -- conducted an inquiry on Collier County permit 2001-021255, issued for a pool screen enclosure located at 117 Channel Drive. One, building permit was issued to The Aluminum Store; two, no inspections were done on permit; three, the permit is inactive status due to the lack of inspections. And it goes on to say, had a meeting with Mr. George Gerow (phonetic), qualifier for The Aluminum Store, and it was determined that the permit number in question should have been cancelled for the following reasons: One, homeowner cancelled contract with The Aluminum Store, and he puts in parentheses, copy of contract was provided to our office; two, Mr. Gerow notified homeowner of setback violations; three, under contract with the home -- with The Aluminum Store, homeowner was to supply design and specifications of the pool cage. After discussing in length with the qualifier, Mr. Gerow, it was determined by our office, implying the Contractor Licensing Board, that we were unable to prove payments made by the homeowner to the Page 42 February 16,2006 contractor or that the contractor completed the work under this permit. Mr. Gerow was given verbal notification to void and seek refund for outstanding permit located on 117 Channel Drive for a screened pool enclosure. If the homeowner is able to provide more information on who completed the screen enclosure to our office, we would gladly look into the matter on his behalf. COMMISSIONER CARON: Okay. So there was, at some point in time, a contract between the applicant and The Aluminum Store? That they cancelled the contract is also obvious. However, in having that contract with this -- with The Aluminum Store, they would have been made aware that the old pool enclosure had to come up to today's standard. COMMISSIONER SCHIFFER: Let me ask a legal question. CHAIRMAN STRAIN: Let's -- Donna, can -- can we get Donna's questions, and then, Brad, we'll get -- COMMISSIONER SCHIFFER: Well, I just want to make sure that that's really testimony that we can count on that was in that letter. I mean, that's -- before we put weight on it, let's see if it can hold it. MR. YOV ANOVICH: I was going to -- at least Mr. Thiermann's here to answer any questions on his affidavit. You're taking a statement from a Mr. Gerow, and he's not here to provide any verification of what he's saying. My client will get up there, and he will come up and say, there was no contract, and that will be under oath and that will contradict a statement that's in an email that's not sworn to. COMMISSIONER CARON: And that would be good. CHAIRMAN STRAIN: Okay. I think that ought to be done. And if Code Enforcement or the county can find a contract from this gentleman with The Aluminum Store between now and the BCC hearing, you should present it. And if you can't, maybe licensing ought to look back at The Aluminum Store for providing the Page 43 February 16,2006 statements they provided without any backup to those. So Richard, could we have that statement on the record? MR. THIERMANN: My name is Eberhard Thiermann. I live at 117 Channel Drive, Vanderbilt Beach. To answer your question here, it's simple. In preparation for the upcoming permit and work which had been planned, I summoned numerous contractors to give me pricing because I had to get an overall picture what the modification and what the modeling cost was on the house. One of the contractors was The Aluminum Store, which I summoned, and asked them for pricing on replacing the pool screen enclosure. An individual, young person, came to the house, looked at the work which was involved, made an estimate, and this was basically the end of it which I heard. Subsequently, which, of course, I found out much later, this company applied for a permit without my knowledge, without my agreement. I never paid for the permit, I never saw the permit. Permit was never posted at the property. And so when all of this came up, I questioned certain people in the business, how is that possible that a contractor can go out, obtain a permit from the county without the knowledge of the owner, and pay for the -- do the application, pay for it, without the knowledge of the owner. And I was told by people which are in this business that this used to be common practice, called jamming, making it difficult for the property owner to switch over to another contractor. And so like I said before, I did not pay for the permit. I did not authorize for the permit. I didn't sign the permit application. I wasn't aware that there was someone applying for a permit for the screen enclosure. CHAIRMAN STRAIN: Did you sign a contract of any kind with Page 44 February 16,2006 The Aluminum Store for this work on your property? MR. THIERMANN: The same people at a later time under the new permit, which was the permit for addition and renovation, which I believe was under which the actual pool screen enclosure was built, was sent at a later time, done by the same company, yes. CHAIRMAN STRAIN: Oh, so they do have a contract with you but not at the time that -- MR. THIERMANN: I have a contract which was done at a later time when the elimination was done under the permit for addition and alteration. CHAIRMAN STRAIN: With The Aluminum Store? MR. THIERMANN: With The Aluminum Store, yes, sir, that's correct. COMMISSIONER CARON: Who apparently knew and should have made you aware that the old pool enclosure had to be brought up to current standards? MR. THIERMANN: I did not know because I did not know that the contractor had applied for a permit. I didn't see the permit. I wasn't aware of the permit. COMMISSIONER CARON: Well, he did the work. CHAIRMAN STRAIN: Okay. Thank you. Are there any other questions of the gentleman? Mr. Schiffer, then Mr. Vigliotti. COMMISSIONER SCHIFFER: In your testimony you said that you interviewed various aluminum manufacturers or screen enclosure companies. Did any of them make you aware of the fact that there is a concern over the setback of this? MR. THIERMANN: No, none. COMMISSIONER SCHIFFER: All right. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER SCHIFFER: I just want to make sure -- because this is really -- what you said is The Aluminum Store went in and they applied for a permit without your knowledge. Page 45 February 16,2006 MR. THIERMANN: That's correct. COMMISSIONER SCHIFFER: And I understand that, and that did happen. But what -- it was shortly thereafter, actually just doing the math, 1,000 permits later, which in Collier County might be a nanosecond, 1,000 permits later you applied for the permit for the renovation of your house. So in other words, these two permits are sitting in the county records simultaneously, therefore, the county, even the inspectors for the county could feel that that work is going to be done under an active permit. And I could understand why they're out on the site looking at stuff. And if they did check it, they would see, well, this is going to be the Aluminum Store's responsibility to get these permits. But when did you hire back The Aluminum Store then in -- MR. THIERMANN: A year later when the actual bids were given out, or the actual contracts were given out for the work on the renovation. COMMISSIONER SCHIFFER: So they came in shortly thereafter -- or they came in 1,000 permits later and were the ones that were hired to do the permit on this site, or do the screen enclosure on this site? MR. THIERMANN: Basically, what I believe was correct, and what these people were told also by me, that the permit replacement was done under the permit, which I receive addition and alteration. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: We have-- COMMISSIONER VIGLIOTTI: Were they-- MR. YOV ANOVICH: I think you need to clarify a time frame. I think the time frame of the applying for the permit is close. But remember it took a year to finish the renovations. COMMISSIONER SCHIFFER: Correct. MR. YOV ANOVICH: Were they hired near the end of the Page 46 February 16,2006 renovations to do the work is the question? MR. THIERMANN: That's correct. They were hired in 2002. COMMISSIONER SCHIFFER: Were they hired after you got the Certificate of Occupancy for the original permit, after you closed the original permit out? MR. THIERMANN: No, no. COMMISSIONER SCHIFFER: Okay. MR. THIERMANN: That was before, because as you can see, the record will show that the pool screen enclosure, as it was built under the permit for addition and alteration, was inspected twice by the county inspectors, and after the inspections, I received the Certificate of Occupancy or the Certificate of Completion on the pool enclosure, as it exists today. COMMISSIONER SCHIFFER: With the rest of the addition. MR. THIERMANN: That's correct, yes, sir. COMMISSIONER SCHIFFER: Now, there's also testimony that you weren't aware of the original permit until it expired. It would expire 180 days from when they pulled it. So, therefore, you were aware of the original permit and the confusion of that during the process of the construction of the -- MR. THIERMANN: No, I was not. MR. YOV ANOVICH: He never -- he testified that he never knew about the original application. Nobody brought it to his attention until a 2004 letter from the county saying, this work should have been done on this other permit, and that's when the confusion was, we said, what other permit? That's what his testimony is, okay. He never knew that there were two permits in the system at the same time. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: I would like to remind the board that this is a variance request of 3.2 feet from a 10- foot rear setback. While it's enlightening to learn how it happened, we still are focusing on the variance request. So we'll still entertain questions. Page 47 February 16,2006 Ms. Caron? COMMISSIONER CARON: Yeah, let's get the focus back. As the owner/builder you understand that it is your responsibility to know the code and to follow the code, correct? MR. THIERMANN: Yes, I do. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Mr. Vigliotti, did you have any follow-up? COMMISSIONER VIGLIOTTI: No, my question was answered. Thank you. CHAIRMAN STRAIN: Okay. Any other questions of staff or the applicant at this time? COMMISSIONER SCHIFFER: None. CHAIRMAN STRAIN: Okay. Are there any public speakers, Kay? MS. DESELEM: Yes, we have one. Kenneth Haney. MR. HANEY: Good morning. For the record, my name is Kenneth Haney. I'm with the law firm of Quarles and Brady, and we're here today to object to petition V A-2005-AR-8693. We represent Mr. Forbis, who is one of the property owners, locate -- owning property in the neighborhood of the subject parcel. On the map here you can see represented with an X that the property that Mr. Forbis owns -- and he is the one as Commissioner Strain pointed out, who has filed some objection letters in this matter. The X is across the canal to the north from the subj ect parcel and is basically looking right into their back yard. I think as a general matter, the Commission has addressed a lot of the issues or concerns that we had with respect to the 50 percent rule, the survey, the prior permit application, what had gone on there. I think we want to state more generally that, you know, we're not talking about a de minimis encroachment here. This is fully 30 percent of the setback that they're requesting here. And this is the Page 48 February 16,2006 kind of thing that ends up -- when a variance is granted, you end up getting the exception becoming the rule. I mean, just because the property has existed in this condition for a certain period of time -- there was work subsequently done very recently in 2001 on this, and when that kind of thing occurs, to relieve the property owner of an obligation to make sure he complies with the code, I think, is very problematic going forward in terms of setting a standard. I also want to address that, you know, I think the authorization for the permit is a bit of a red herring. You know, the fact is, if the 50 percent rule applies and he was required to bring it up to speed with the current code, whether or not he authorized some company to come in there and file the permit application really isn't apropos to whether or not he was aware of the 50 percent rule and what his obligations were thereunder. So our position is that he should have been aware of what the code required at that time. He clearly did not have the renovations performed in compliance with the code. Also in looking at the photograph that's been provided here, I don't know if that establishes in any kind of firm way that the screen enclosure can't be moved to be brought into compliance with the code. I know we have testimony that, admittedly unscientific, stating that the screen enclosure would be too close to the pool edge if it were moved, but I think that that might be somewhat inconsistent with what appears in the photograph to the extent that there appears to be quite a bit more than three feet between the edge of the screen enclosure and the pool deck edge. And I think that's pretty much all we have unless you have any questions. CHAIRMAN STRAIN: Sir, I have one. Your client, how long ago did he move across the waterway from this property? MR. HANEY: I don't have a purchase date on his home, but I Page 49 February 16,2006 believe he's been there for several years. He bought that property for his daughter, so I think it's been more than just a small period of time. CHAIRMAN STRAIN: And this property's been there since '76. The pool enclosure, that your client would have obviously noticed when he bought his home across the way, some 25 years later, he's now objecting to an improvement to the screen enclosure on this property that looks an awful lot better than the one that was there and is probably an awful lot safer in regards to flying debris and hurricanes. MR. HANEY: I have no basis to disagree with that. CHAIRMAN STRAIN: Thank you. Any other questions? (No response.) CHAIRMAN STRAIN: Hearing none, I have one more of Heidi, if that's okay, Heidi. Thank you, sir. I notice that over the last couple of years there have been numerous pool enclosure issues in the Vanderbilt Beach area. Had this not been discovered in the manner it has today, would it -- ifit had been discovered in the way those others had been that were brought before us, would it still have been an issue? Would they still need to have come in for a variance? MS. WILLIAMS: The enclosure would still be considered nonconforming upon investigation. This is before us because a Code Enforcement action was initiated. CHAIRMAN STRAIN: Right. But I mean, regardless, similar to the other pool enclosure issues that have come before us, this is just another one of a group that have been more or less focused on in the Vanderbilt Beach area that are less than the 10- foot required setback, and eventually, sooner or later, they'd have to come in for a variance; is that a fair statement? MS. WILLIAMS: Yes. I do believe they can be looked at as a group; however, it was reviewed on its own individual standing with Page 50 February 16,2006 its own set of conditions. CHAIRMAN STRAIN: Okay. I'm just trying to put it in its perspective. Thank you. COMMISSIONER SCHIFFER: Mark, let me follow up. CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: Heidi, let me ask a question. If this screen cage is blown down in a hurricane, could it have been rebuilt in its exact location? Wouldn't it have to then comply with the code as a rebuilding? MS. WILLIAMS: Yes. It would have to come into compliance with current code. COMMISSIONER SCHIFFER: So essentially if a big storm comes through and does knock down all these things in that -- that area, all of the rebuilding will be -- everybody would be built back to the code, the proper setbacks and stuff? MS. WILLIAMS: That's correct. COMMISSIONER SCHIFFER: And then to follow up on Mark's statements, all the prior ones we've had were really setback issues based upon elevation of pool deck. I think this is the first one that we've got that's a pure dimensional problem without the elevation. MS. WILLIAMS: This particular petition does not -- does not consider the elevation of the pool deck as a factor. COMMISSIONER CARON: And beyond that, this is also involved in a renovation where the opportunity was there to correct the error, and it was not done as it should be. And as the applicant stated to me, it was his responsibility as owner/builder to know the code and to follow the code. CHAIRMAN STRAIN: Okay. Are there any other questions of COMMISSIONER SCHIFFER: I think Rich wants to answer that. MR. YOV ANOVICH: Well, I'm assuming I get __ Page 51 February 16,2006 COMMISSIONER SCHIFFER: Oh, okay. MR. YOV ANOVICH: -- closing statement. That's all I was trying to do. CHAIRMAN STRAIN: Well, after the questions are done, you might. MR. YOV ANOVICH: Oh, you're not done with Heidi? I'm sorry . CHAIRMAN STRAIN: I just want to make sure we are. Does anybody have any other questions of staff, Richard, the applicant, the witness, anybody? (No response.) CHAIRMAN STRAIN: Richard? MR. YOV ANOVICH: I would like to respond __ CHAIRMAN STRAIN: A few minutes is all. MR. YOV ANOVICH: How many? CHAIRMAN STRAIN: Make it just a few. MR. YOV ANOVICH: Well, this is actually in response to some of the statements made up there. CHAIRMAN STRAIN: That's what a closing statement generally is. MR. YOV ANOVICH: Well, I'm going to introduce -- Mr. Vigliotti wanted to know -- he had a specific question. My client has provided me with a picture that will show you where the new enclosure would be if you met the 3.2 feet. I'm going to put it up on the visualizer, but I'm assuming you're going to want to see it up close and personal. COMMISSIONER VIGLIOTTI: No, that's fine. MR. YOV ANOVICH: You will see -- you will see that that is the 3.2 feet, and you're into the water if you were to move that in. I would disagree with the statement that the other variances really weren't dimensional variances. They were all dimensional variances. A setback is a setback is a setback. Just because of elevation doesn't Page 52 February 16,2006 change the fact that you're supposed to be a certain distance. This is no different than the other variances. This is a situation where -- that has existed since 1976. I guess my client would have been better off just leaving the old enclosure up there, and I would -- I think we could all say that the new enclosure is much more attractive, much more safe than the previous enclosure. I find it difficult to listen to people who come up here when something existed for 25 years, and now they get up there and say, oh, I've got a problem with it when it's in the exact same location. It's kind of hard to understand why it wasn't a problem 25 years ago, and now all of a sudden it is. I believe my client didn't do anything intentionally wrong. He bought a home in 1993 that had a pool enclosure in the exact same location as the new pool enclosure. I've heard different interpretations regarding what happens when a hurricane comes to non-conforming uses. I have heard the county say that if a hurricane comes, a catastrophe comes, non-conforming uses can be rebuilt. So if the hurricane had come, I believe he could have rebuilt it in the same exact location. Fortunately, and you will see, a hurricane did come, Hurricane Wilma, and this screen enclosure was damaged slightly but did very well. I submit to you much better than that 199 __ 1976 screen enclosure would have fared ifit had stayed. My client, as an ownerlbuilder, made a mistake. There were county inspectors out on the premises. It was never mentioned to him that it was a mistake. He's willing to pay the additional after-the-fact fees, if that's appropriate, for putting a screen enclosure back in the same location. Taking the screen enclosure off is an awfully harsh result. Moving it in makes it -- you can't -- it doesn't really serve any purpose to move it in the 3.2 feet. It's nonfunctional at that point. And with that, your staff has recognized the special Page 53 February 16,2006 circumstances. And with that, we hope that you can recognize the special circumstances as well and forward this to the Board of County Commissioners with a recommendation of approval. COMMISSIONER CARON: I'd like to make just one correction. We are not talking about anything that has to do with 1976. We are talking about renovations that happened in 2001 when the requirement was to bring it up to code now. It's not 1976. MR. YOV ANOVICH: Well, I disagree with you. What my client did was replace a structure that existed since 1976. COMMISSIONER CARON: But he was under obligation at that time to make the corrections. CHAIRMAN STRAIN: Well, that's the -- I guess the point of contention, and we can discuss that during our discussion on the __ whatever the motion's made. Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, what is this we're looking at here because -- MR. YOV ANOVICH: I was asked by Mr. Vigliotti, where would the screen enclosure be if we moved it in 3.2 feet, and I had said I believe it's going to be in the water or very close. My client had a picture to show you, a ruler, that's 3.2 feet, showing where the screen enclosure will end up if the variance is not granted. So in effect, you will be taking away the screen enclosure. COMMISSIONER SCHIFFER: And this is kind of why, I think, Heidi, we needed a survey to show where the pool is. I counted 44 little inches across the bottom, so I'm not sure __ MR. YOV ANOVICH: I'll have him, again, get up here and tell you that's 3.2 feet, if you'd like. He provided the picture. COMMISSIONER SCHIFFER: Well, I mean, I can see, 44 inches, and there's more on -- on one side anyway, so -- anyway, I mean, as a piece of evidence, I don't think this shows exactly what's going to happen if you have to put it in the right place. Page 54 February 16,2006 CHAIRMAN STRAIN: Okay. Are there any other questions of Richard, of the applicant? (No response.) CHAIRMAN STRAIN: Richard, I have one question. When you did the renovation to the screen enclosure and to the house, did you rip out the swimming pool to a point where when you reinstalled the swimming pool, it could have been 3.6 -- 3.2 feet further back into the house? MR. YOV ANOVICH: We didn't touch the pool. CHAIRMAN STRAIN: Okay. So other than ripping out the pool and moving it physically back and making a narrower pool and moving the house forward or something of that nature, you didn't structurally change what that pool cage was sitting on. MR. YOV ANOVICH: Nothing changed regard -- I mean, it's the exact same thing. Frankly, I think it looks a lot more attractive. You put some fill in there so you don't look at that stark wall, and I think they've made it very attractive. CHAIRMAN STRAIN: Thank you. Hearing that, we'll close the public hearing and entertain a motion. COMMISSIONER TUFF: I move we approve the variance with the recommendation -- three recommendations by staff. CHAIRMAN STRAIN: Is there a second? COMMISSIONER KOLFLAT: Second. CHAIRMAN STRAIN: Seconded by Mr. Kolflat. COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Motion's been made and seconded. Discussion? COMMISSIONER SCHIFFER: I'd like to discuss something. First of all, I'm not against it. Mark, I don't know what makes you think you can't remedy this. There was 45 inches shown on that scale with his own evidence. So in other words, this pool cage could be built off the edge of that pool. Page 55 February 16, 2006 The real issue I have though -- and Heidi, it's that you're going to allow these people to go back to the code in which they built something without a permit, which I think is a serious lesson to -- or seriously, you know, an example. In other words, my understanding is if something isn't built with a permit, you would have to bring it up to the present-day code, the code in which you will be obtaining that permit from. So I would have a serious concern that if it went forward where we give the message that you can build things without permits, and if you do get caught, you can fix them with the code in which you built it without the permit. CHAIRMAN STRAIN: Okay. Are you -- in your statement, are you requesting any stipulation or are you making a statement? COMMISSIONER SCHIFFER: Well, was that a staff stipulation that it be built to the 2001, or was that -- or you obtain a permit? MS. WILLIAMS: The staff stipulation required that the existing structure be certified that it met the code at the time it was constructed, which was the 2001 code, building code. COMMISSIONER SCHIFFER: Then I would -- if you do want to go forward in that direction, I would definitely think that you should make it to the code, the present-day code. This would be the only example I've ever heard of being able to do that. MS. WILLIAMS: And this was at the request of the administrator and the building department director. And unfortunately, I'm not an expert in the building code and how it's changed over time. I'm not sure if there are significant differences between the 2001 code and now. But I believe it was specified so that we weren't creating a situation where the variance would be approved but it could not be certified that it met today's building code. COMMISSIONER SCHIFFER: Well, ifit didn't meet it, there's ways to fix the structure to do it. I mean, if it didn't meet it, it was Page 56 February 16,2006 because the one code had a lesser strength requirement than the other code, so we certainly -- why would we honor the ability to live with a lesser strength if you build things without permits? CHAIRMAN STRAIN: Well, you don't-- MS. WILLIAMS: Again, I'm not an expert, but I believe the remedy would be a change to the structure to meet today's code, and I'm not sure what that remedy is. CHAIRMAN STRAIN: Brad, and I understand your argument from my perspective. But without knowing from a building code official or a structural engineer what this would entail, I can't see where this isn't an improvement over '76. They know the time frame it was constructed. I'm satisfied myself with the code requiring it to the 2001 code as staff has recommended. Without a staff recommendation to change it, my tendency is to stay with staff. But I'm -- I understand __ COMMISSIONER SCHIFFER: So you're comfortable with the fact that you can build things in Collier County without permits, and then if you get caught and you ultimately obtain a variance, you are able to go under the code that you built it without the permit? CHAIRMAN STRAIN: Well, if there was malicious intent here, it would have been shown today, I would have to __ COMMISSIONER SCHIFFER: I mean -- CHAIRMAN STRAIN: --look at it differently, but from everything, all the testimony today, this was not an action that was done purposely to avoid the code from 2004 to 2001 that I can see. And I -- had, for example, you done a room addition or something else in 2001 and for some reason a permit wasn't appropriately addressed at the time and you went back, you wouldn't be expected to update that room addition to the code at the time it was discovered. We've had those come before us numerous times and we haven't done that. COMMISSIONER SCHIFFER: Well-- Page 57 February 16,2006 CHAIRMAN STRAIN: But I mean, I understand. If that's a stipulation you want, it's up to the motion maker and the second to accept your stipulation. COMMISSIONER SCHIFFER: And the way that would be solved is to say that it has to meet -- you know, they have to go in and get a permit under the current code. COMMISSIONER VIGLIOTTI: My concern, Brad, with that is, it might have to be totally redesigned and replaced, and then where was he going to be, back at the 10 feet? COMMISSIONER SCHIFFER: Well, I think sometimes when we do grant these variances, that they do require us to go back in and get permits. If we went back in to get the permit and the structure wouldn't meet the requirements and had to be rebuilt, wouldn't we __ would they still maintain the variance, or would they have to build it according to the code at that time? COMMISSIONER VIGLIOTTI: Evidently-- MS. WILLIAMS: The variance generally only grants an exception to the distance required, the dimension required, and it generally doesn't anticipate any changes to building code requirements. In this instance, it was felt that this was necessary to allow a recommendation of approval from staff. CHAIRMAN STRAIN: Okay. There's a request for a stipulation to be added to the motion that would require this enclosure, if it were to be granted, to be updated to the 2004 building code, or the current code of the day, I should say. COMMISSIONER TUFF: I'm not willing to change my motion, so -- CHAIRMAN STRAIN: Okay. Well, there's no sense of going to the second at this point. COMMISSIONER KOLFLAT: I won't change the second anyway. CHAIRMAN STRAIN: Okay. Hearing that, is there any further Page 58 February 16,2006 discussion on this motion? COMMISSIONER KOLFLA T: Yeah. CHAIRMAN STRAIN: Commissioner Kolflat? COMMISSIONER KOLFLA T: The representative for Mr. Forbis stated that three-and-a-halffoot into a lO-foot encroachment is not a minimus encroachment because it comes to 30 percent. On the other hand, I would submit that when you take 10 feet setback plus 100 feet canal, plus another 10 feet setback, at 120 feet, that three-and-a-halffeet encroachment into 120 feet is indeed a minimus encroachment. And I went there and inspected the property, and I can guarantee you, even with good eyes and depth perception, you're not going to be able to distinguish that 120 feet, whether it's three-and-a-halffeet up or three-and-a-half feet back. CHAIRMAN STRAIN: Good observation. Thank you. COMMISSIONER TUFF: I'll take that. CHAIRMAN STRAIN: Okay. Commissioner Midney, did you have a comment? COMMISSIONER MIDNEY: Good call. CHAIRMAN STRAIN: Ms. Caron, did you have a comment? COMMISSIONER CARON: Yeah, because obviously I will not be voting for this variance. And I take exception with the last comment because it is not a matter of, if I can perceive the distance or not. It's a matter of, we have a code and a code that's in place for a reason, and we need to be following the code. There are no land use -- there is no land-related issues with this. There are no special conditions, because it was the petitioner who took on the responsibility of the addition and all that that legally entails. There are no hardships. If there are any, they are strictly self-imposed and have nothing to do with interpreting this zoning code. It will be granting a special privilege that we don't want to grant Page 59 February 16,2006 across the board. It will not be in harmony with the intent of the code or we wouldn't have specific setbacks to begin with. Rules for bringing the property into compliance are there in the renovation process. And there are -- I believe it does not -- it is not consistent with the Growth Management Plan __ CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: -- or the Future Land Use Element. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yeah, I would only say that these rules and codes are not inflexible. If they were inflexible, there would be no need for a Planning Commission to review variances; otherwise, you would just follow the code, follow it all the time. And the reason for this board is to review situations to see if there are special circumstances that modify the requirements that are put forward. COMMISSIONER CARON: Ifthere are special circumstances. CHAIRMAN STRAIN: Well, I think that we can continue to debate this for quite some time, but in the meantime, let's call for the question. All those in favor of the motion as stated, please signify by saymg aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: All those opposed. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Motion carries, three -- 5-2. Thank you. We have a couple other issues to go over today. The next one may take a few minutes longer than some of the other things. Why Page 60 February 16,2006 don't we take a break till 1 0:25, and we'll resume our meeting at that time. Thank you. (A brief recess was had.) CHAIRMAN STRAIN: We're still short a quorum from the break. Mention the word quorum, and they come out of the woodwork. COMMISSIONER SCHIFFER: Well, actually you had it, but I was in the back. Item #8D PETITION PUDZ-A-2004-AR-6283 CHAIRMAN STRAIN: Okay. We have one other -- well, first of all, we had a petition on today's agenda, item D, petition PUDZ-A-2004-AR-6283, the Lely Development Corporation, Lely Barefoot Beach PUD. That has been rescheduled, and there has not been a new hearing date noted at this time. So that will not be heard today. Item #9 OLD BUSINESS CHAIRMAN STRAIN: The next item on the agenda is an old business issue, and I'd like to explain the background so that we don't go off into a long tangent on it. Commissioner Schiffer, in our discussions during Bayshore/Gateway Triangle hearings, had come up with a lot of issues involving landscaping. During the many meetings we had on that __ on the Bayshore/Gateway Triangle, it was noted that some of these issues could be cleaned up at a later date at a later Land Development Page 61 February 16,2006 Code cycle. Commissioner Schiffer followed through on that with staff and has been emailing back and forth, or meeting back and forth, with staff members and others to resolve the outstanding landscaping issues that he had brought up during our other meetings. It was added to today's agenda at my request so that we can get an acknowledgement from Mr. Schiffer and from staff that it certainly has been discussed and that it will be -- some format will be coming up on a future Land Development Code cycle. And it would be at that time, I would imagine, we'd be better off debating the merits of the Issue. So with that said, I'd just like to get the parties together on record as to what -- where we're at. COMMISSIONER SCHIFFER: Right. And I think you've worked all that out. And again, Nancy, I see another problem, which is typical of the problem we're having, is that one thing I'd like to __ we really should go over is what we can do and what we can't do once we leave this meeting. I mean, the problem I had is that there was a lot of regulatory verbiage that was added that I felt and fought to not be added. In other words, you can't go through the review process, the public review process, and then at the end start making up, you know, code. So we had an issue with that. I think we've worked out most of that. But essentially some of the changes -- you know, and Nancy, just quickly, I noticed another one, number five, you see -- remember we had surface water? That was taken out of your final again, so __ MS. GUNDLACH: I see. COMMISSIONER SCHIFFER: We're having trouble with the process of code. And I think, Mr. Chairman, we should come up with a way where we can really watch how this code is changing. CHAIRMAN STRAIN: On this particular issue, it's my understanding that no matter what you're doing here today or after Page 62 February 16,2006 today, it is going to be on the next Land Development Code cycle; is that an acknowledgement of that? MS. GUNDLACH: Correct. CHAIRMAN STRAIN: Okay. And that's where I was trying to get to today, Brad. And your particular issues that you're working out with Nancy, I imagine like anyone of us, could meet with staff and work on them all the way from now until they come before this board in a formatted meeting, and we're going to re-debate -- we're going to debate them at this -- at a formatted meeting. These aren't being passed today. COMMISSIONER SCHIFFER: Well, actually what happened is that we kind of revised -- in other words, you left us the task to review some stuff, which we did, and we are, at least I'm in agreement with -- and essentially it's not really differences. In some cases they wanted more, and we got it back to what it was that we reviewed. Any new language that they added, we kind of fought it, got it taken out, because that isn't fair. The process isn't fair for this to be added at the end. And then -- so essentially, what she has here, what has gone before the Commission already, I guess, with some changes here, I think is what we kind of intended to have happen. In other words, I think we fought off any new regulations, and we've fought off any ability to increase the regulations, and we clarified those issues, I think, that would confuse them. So I think that's going to happen. Now, the issues that were regulatory in nature, Nancy, we'll be bringing back in the next cycle. CHAIRMAN STRAIN: That's what I was-- MS. GUNDLACH: That's correct. CHAIRMAN STRAIN: Okay. So at least there's a meeting of the minds between you two as to what we're -- where we're going with this in the future as far as the next Land Development Code cycle. Page 63 February 16,2006 MS. GUNDLACH: I believe we're in agreement, and I agree with everything that Commissioner Schiffer has just shared with us. CHAIRMAN STRAIN: Okay. MS. GUNDLACH: And-- CHAIRMAN STRAIN: Nancy, I know that staff has always been accommodating to the Planning Commission, and I'll be the first to acknowledge that. I would hope that between now and the time that language for that Land Development cycle comes out, that you and Mr. Schiffer keep refining it so that maybe when it gets to us -- he it probably the most fluent in those particular sections of the code as a member of the Planning Commission -- you might then find it easier to work with him and discuss it at the Planning Commission meeting, so -- COMMISSIONER SCHIFFER: But -- and this is the end of, Nancy, what we have to talk about. Just in general though, I really think we need to come up with a way to communicate these changes. I mean, even between yesterday and today, some words fell out, and I don't think -- that was maybe a scrivener's error or what, but we don't know. The point is, I really think we have to come up with a really good word movement, crossing out who doesn't like this, showing who likes that, so that the Commissioners, you know, when they get it, they could see what committees looked at it, what committees felt comfortable with one way of wording and what committees felt comfortable with another way, and then also not leave it where staff can change the wording without consulting those advisory boards. CHAIRMAN STRAIN: Brad, I think that's a good suggestion. Since you volunteered to look into it and come up with some unique way of possibly recommendations with staffs corporation, I would certainly look forward to something you would suggest in the future. COMMISSIONER SCHIFFER: No. There are methods that the building codes use to move the code through where everybody can see Page 64 February 16,2006 what's going on. CHAIRMAN STRAIN: It's a great idea. If you wouldn't mind-- if you wouldn't mind taking that on, I sure -- I know we'd all appreciate it. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Good. Thank you. MS. GUNDLACH: Might I offer something? CHAIRMAN STRAIN: Go right ahead. MS. GUNDLACH: Just for this particular amendment, I would like to get the correct version to Commissioner Schiffer. And, you know, upon your agreement, that will be the version we go forth with. COMMISSIONER SCHIFFER: Okay. MS. GUNDLACH: Because he's correct, there's obviously some language that's missing from this document. CHAIRMAN STRAIN: And I'm sure that ifit -- if there's something blatantly wrong that you two can't work out, I know that Brad is not shy about bringing it back forward to this meeting. MS. GUNDLACH: No. It appears that the document that was changed was not the most recent document, Commissioner Schiffer, and that's why surface is missing and building foundation plantings is missing as well. COMMISSIONER SCHIFFER: But you can see the importance of a process work, because I mean, I don't want to play, Where's Waldo, and follow every word to make sure it's there, you know. CHAIRMAN STRAIN: No, it's some good recommendations, Brad. Thank you for staying on top of it. MS. GUNDLACH: Okay. CHAIRMAN STRAIN: I think it's a very positive move. And with that, I thank you. MS. GUNDLACH: You're welcome. CHAIRMAN STRAIN: And we have -- we have a new business item, but it's listed as a workshop, and so I think -- Kay, did you have Page 65 February 16,2006 something you wanted to -- MS. DESELEM: Yes. For the record, you -- Kay Deselem. You had asked me earlier to find out what the times were -- CHAIRMAN STRAIN: Yes. MS. DESELEM: -- for the meetings. On March 6th and March 8th, the meeting starts at 8:30 a.m. There's another meeting scheduled at 9:00 -- 9th, I'm sorry, at 9:00 a.m., and that's an if-needed meeting, and that one's to end no later than 12:30 because the room needs to be vacated. CHAIRMAN STRAIN: Okay. So we have -- now these are all the dates for the EAR? The 6th and the 8th at 8:30, and the 9th at 9:00 a.m.? MS. DESELEM: That's correct. CHAIRMAN STRAIN: And the 9th is an if-needed date. MS. DESELEM: March 6th and March 8th at 8:30. CHAIRMAN STRAIN: Right. MS. DESELEM: And March 9th, if needed, at 9:00. CHAIRMAN STRAIN: Okay. Thank you. MS. DESELEM: That's per David Weeks. COMMISSIONER KOLFLA T: That's at this location. COMMISSIONER SCHIFFER: Kay, they'll be held here, correct? MS. DESELEM: I'm assuming so. CHAIRMAN STRAIN: Yeah. It usually is unless we're told differently, so we'll go under that assumption unless we're notified differently. MS. DESELEM: Right. That's what I'm assuming, that that's normally where they're held. CHAIRMAN STRAIN: Yes. Item #12 Page 66 February 16, 2006 WORKSHOP FOLLOWING TODA Y'S REGULAR MEETING Okay. We have a workshop item on today's agenda. I believe we need to adjourn this meeting because it is an advertised meeting for the regular CCPC, and then move into a workshop meeting. Mr. Klatzkow, am I correct in that assumption or not? MR. KLATZKOW: It would probably be the better practice. COMMISSIONER KOLFLAT: Mr. Chair? CHAIRMAN STRAIN: Okay. COMMISSIONER KOLFLA T: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER KOLFLAT: What if there is some other new business, will you then reconvene? CHAIRMAN STRAIN: No. We're going to take anything that has to do with this meeting now, and the new business will be part of this meeting. Do you have any? Item #10 NEW BUSINESS COMMISSIONER KOLFLAT: I have some new business not relative to this review we're talking about -- CHAIRMAN STRAIN: No. COMMISSIONER KOLFLAT: -- but other items. CHAIRMAN STRAIN: Please go right ahead, sir. COMMISSIONER KOLFLAT: On the first part of the staff reports, there's an area that's presented generally called geographic location, which you list the address of the site. What I would like to see the staff do is incorporate in that paragraph the statement, if the site is restricted access, such as a closed community or something of that nature, and also the person to contact Page 67 February 16,2006 to gain access to see the site, because one of the petitions we had today, we didn't find out it was limited access until you drove all the way up there and tried to get in and you could not get in, but there was no directions as to where I could find access to get to that site. So if that could be added as part of the -- any time there is a restricted site, restricted access, that you would so state in the report that's prepared. CHAIRMAN STRAIN: Well, before we go to that point, is there a trespassing issue with Planning Commissioners, Mr. Klatzkow, in regards to visiting a site unannounced? Or is there some procedural issue that we should be following? MR. KLATZKOW: Ifa property owner wants to voluntarily give access to a Planning Commissioner or anyone, for that matter, there's no issue, but I'm not aware of any procedure that would authorize a Planning Commissioner or anyone else to simply go to a site to inspect unannounced. There is a trespass issue, yes. COMMISSIONER KOLFLAT: But members of the staff do go. MR. KLATZKOW: If members of the staff are going to the site, if they're Code Enforcement, obviously they are under some parameters, or they're contacting the property owner or they're inspecting, as part of the process initiated by the owner. But there is no process, no procedure, that I'm aware of that extends any inspection to a Planning Commissioner. COMMISSIONER KOLFLAT: Well, you don't necessarily have to go on the property of the site. It's a matter of just to observe the property. In other words, some of these we looked at today, I observed it without traveling on the property itself so I did not have to seek approval to be there. But it seems to me if we're going to reference the site, and the Planning Commission members -- and the planning staff members are going up there to look at it, if we wanted to drive up there and look at it, we should be able to do it, and if you want to say restricted access, Page 68 February 16,2006 but tell who you would contact to gain access in the report. CHAIRMAN STRAIN: But I think, too, that you could also -- in every application that we receive, we receive contact information in the body of the document from staff. There's an applic -- there's an applicant -- a copy of the application in there in which they put the phone number of the applicant. If a Planning Commission member wanted to visit the site just for liability and safety reasons, you may want to call ahead and suggest that you're coming out to the site and make arrangements with the owner on your own. Now, I've been on this Commission, what, five years, I never saw the need to go to a site. But there are -- there may be an opportunity -- there may be others that see that need, and maybe the best way to handle it is on a one-to-one, case-by-case basis, with the information provided for the applicant's contact on the application information that's within the packet that we get with our meeting notes. COMMISSIONER KOLFLA T: Well, I'm not going to -- definite on how it should be done, but the point here is, when I pick up the staff report and it designates the site, I would like to see, if I plan to go up there, that it's restricted access-wise and what I should do to gain access, if anything; otherwise, I would not bother driving up there. CHAIRMAN STRAIN: Well, why don't you -- if you plan on going up, why don't you just call the applicant that's listed with the package that comes to you, and just tell them you'd like to come up and see his site, and you'll find that they'll be mostly more than accommodating to allow Planning Commissioners to see the site, and that might resolve the issue. I'm concerned about changing some of the language by staff to a point that it implies we have certain rights that we may not have. I mean -- and Jeff? MR. KLATZKOW: I would agree that a property owner, on a purely voluntary basis, if he wishes to give any Planning, Page 69 February 16,2006 Commissioner access, I don't really have a problem with that, although, I do caution you for ex parte communications. I'm not sure that's a really good practice to get into. But having said that, the more you're going to require property owners to give you access on a voluntarily basis, the more involuntary it starts seeming. So this is a road that I'm not entirely sure that we really want to go down, but that will at least give you some considerable thought. COMMISSIONER KOLFLA T: But you're suggesting that we not visit the site or attempt to visit the site? MR. KLATZKOW: I'm suggesting you may want to give some considerable thought before taking that practice. It opens up a -- it opens up an awful lot of issues. COMMISSIONER KOLFLAT: Well, even though possibly visitation to the site might gain us information and knowledge to come to a better conclusion? MR. KLATZKOW: But that's why you have staff. CHAIRMAN STRAIN: The staff reports, over the years, have gotten much improved, including photographs. I don't know if you've got access to the internet aerials, but there are excellent sites that provide very detailed aerials of most of the locations -- in fact, all the locations in Collier County. Those have been very helpful in understanding the layout of the site as well. MR. KLA TZKOW: Yeah. The other possible thing you should consider is that you may be inadvertently creating yourself into a witness, so that the more hands-on you get with the site, the more likely you might be called somewhere down the line to testify as to what you've seen. COMMISSIONER SCHIFFER: Right. MR. KLATZKOW: And that is going to impact negatively in our ability to judge what's going on in front of you. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. Page 70 February 16,2006 COMMISSIONER SCHIFFER: And Tor is from Naples. In Naples all ofthe Planning Commissioners in their ex parte disclose if they visited the site. Is that something we would have to disclose if we did visit the site, I mean, other than maybe drive by? CHAIRMAN STRAIN: Ifwe didn't talk to anybody, but we just drove by the site or saw it, do we need to disclose it? MR. KLA TZKOW: I don't know that you need to disclose it. I think it's not a bad idea though. CHAIRMAN STRAIN: I would think that -- I mean, I've been in this county 30 years, I've -- there isn't a site that doesn't come before us I probably haven't seen in some manner. MR. KLATZKOW: Well, we're all familiar with these things driving up and down the roads -- CHAIRMAN STRAIN: Right. MR. KLATZKOW: -- but there's another -- it's another thing to actually go there, you know, specifically for the purpose of a matter coming before you. CHAIRMAN STRAIN: Okay. And if any -- Tor, if you need further guidance on this, I know you're a new board member, as is Mr. Tuff. At some point there's going to be an orientation meeting in which I'm sure the County Attorney's Office has, many times in the past, done a very good job of explaining the different issues involving the Planning Commission. Has that already happened or is that scheduled? COMMISSIONER KOLFLA T: No, March 2nd. CHAIRMAN STRAIN: Okay. Those are the -- this kind of issue you may want to probe further at that meeting as well -- COMMISSIONER KOLFLAT: All right. CHAIRMAN STRAIN: -- to get a better resolution, too, for yourself. COMMISSIONER KOLFLAT: Okay. I have a couple more, if! might go on. Page 71 February 16,2006 CHAIRMAN STRAIN: Yes, sir. COMMISSIONER KOLFLA T: On the report for boat docks, they -- generally the report lists the primary and the secondary criteria necessary to be reviewed. Now the primary and secondary criteria that appears in the staff report does not exactly mirror the primary criteria that's in the LDC, Land Development Code. It is an abbreviated version. And I would request the staff consider putting the total version in so we have consistency between what the staff has as well as what the LDC states. CHAIRMAN STRAIN: Kay, would you take that back and consider it? And if there's a reason why you can't do that, at our next meeting would you respond to Commissioner Kolflat's issues? MS. DESELEM: Yes, sir, I'd be happy to. CHAIRMAN STRAIN: Okay, great. Your next issue, sir? COMMISSIONER KOLFLA T: The next one is, I found several lists that do not have acronyms, and I've been forwarding those to Ray Bellows, and I would hope that you'll have a revised list of acronyms on it, because there's quite a few that crop up in the reading that are not shown there. So if you would follow that through, I'd appreciate it. Next one is on the NIM, the neighborhood information meetings, there's a schedule that I believe is sent to Ray Bellows periodically telling when they would consider. I'd like to know how I might get copies of that in advance in the event, should I want to attend one. MS. DESELEM: Kay Deselem, for the record. Linda Bedtelyon is the one that's in charge of scheduling those. She is the Community Planning Coordinator. If you'd like, I can -- I don't recall her number off the top of my head, but she is a county employee, and I can give you her phone number if you'd like. CHAIRMAN STRAIN: Kay, before we go that far, Tor, I would encourage you to discuss this at your orientation meeting with the County Attorney's Office. Page 72 February 16,2006 By attending those meetings, the public will be there. There could, by chance, be another Planning Commissioner there, and it could open up a Pandora's box of problems, so you may want to flesh out in your orientation meeting with the County Attorney's Office as to what could occur, what you should or should not do at those meetings before you go to any. COMMISSIONER KOLFLA T: Well, I had intended to participate in meetings to observe the meeting. And I did check out and they said they were legally open meetings to the public. CHAIRMAN STRAIN: They are. COMMISSIONER KOLFLA T: And, therefore, I was just going as a member of the public wanting to go and observe when I could. CHAIRMAN STRAIN: Okay. I was -- it's just a suggestion. COMMISSIONER KOLFLAT: Well-- and I did talk to the lady that you mentioned about issuing this, but what I was unable to get was some kind of a commitment that she might forward me a copy rather than I have to go through Ray Bellows to get it. That was all I was going to ask if she could -- if I could somehow be placed on that mailing list. MS. DESELEM: We'd be happy, as far as Zoning Staff, to forward it to you, because we get a copy, and we'll forward anything to you that we get. COMMISSIONER KOLFLAT: Okay. Thank you very much, Mr. Chairman. That's all I had. CHAIRMAN STRAIN: That's all you had, Tor. Okay. COMMISSIONER SCHIFFER: Let me just pile on that last point, Tor, is that I kind of would be interested, if you were going to be at neighborhood meetings in District 2, so could you do that? Maybe if the Commissioners want, that when they're scheduled in the different districts, they could be notified? MS. DESELEM: I can take that back and tell them that's what you're wishing to see. Page 73 February 16,2006 COMMISSIONER SCHIFFER: Okay. Thank you. CHAIRMAN STRAIN: Jeff, I know that there's a sunshine issue if more than one Commissioner shows up at these meetings. I would hope that when staff responds to Commissioner Kolflat and Commissioner Schiffer, that they confer with the County Attorney's Office to make sure that we're not getting into an area that could be problematic for us. MR. KLATZKOW: We will take care of this after the meeting, yes. CHAIRMAN STRAIN: Thank you, sir. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I first -- first of all, I'll be absent March 16th. And I'm wondering if staff could possibly give us color pictures in our packets instead of black and white pictures, like the pool cage and things like that, would really help. MS. DESELEM: I can look into that. We do have those sent out to a printer to have them printed, but we have the ability in-house to probably make copies for the CCPC members themselves that you could have colored ones. COMMISSIONER VIGLIOTTI: Great, I appreciate that. Thank you. CHAIRMAN STRAIN: Is that it? COMMISSIONER VIGLIOTTI: That's it. CHAIRMAN STRAIN: Okay. Any other new business? (No response.) CHAIRMAN STRAIN: Hearing none, there certainly is no public here. They can't get through the security. With that, we'll adjourn this public meeting of the Planning Commission. COMMISSIONER VIGLIOTTI: Motion to adjourn. COMMISSIONER SCHIFFER: (Raises hand.) Page 74 February 16,2006 CHAIRMAN STRAIN: Is there a motion to adjourn? Made by Mr. Vigliotti, seconded by Mr. Schiffer. All those in favor? COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Motion carries. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:35 p.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, CHAIRMAN Page 75