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Agenda 10/14/2008 Item #12CAgenda Item No. 12C October 14, 2008 Page 1 of 116 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners enters into a Developer Agreement with DAD Development Corp., the Developer of Pebblebrooke, which Agreement would buffer and otherwise mitigate the impact of the two -story building on the adjoining residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to this building, and grant an administrative waiver which will allow the dumpsters at the "Proposed DP Locations" to be enclosed by a chain link fence with vinyl slats in lieu of a concrete wall, which would otherwise be required by the LDC, and which will allow the dumpster to be located within the "10' Accessory Setback" as shown on Exhibit C of the Developer Agreement. OBJECTIVE: That the Board of County Commissioners enters into a Developer Agreement with the Developer of Pebblebrooke, which Agreement would buffer and otherwise mitigate the impact of the two -story building on the adjoining residential neighborhood, and grant an administrative waiver which will allow the dumpsters at the "Proposed DP Locations" to be enclosed by a chain link fence with vinyl slats in lieu of a concrete wall, which would otherwise be required by the LDC, and which will allow the dumpster to be located within the "10' Accessory Setback" as shown on Exhibit C of the Developer Agreement. CONSIDERATIONS: The Richland PUD (Pebblebrooke) issues have appeared before this I Board several times. As background, I have included the following materials: (1) The December 7, 2007 report from Mr. Farese, which sets forth the material facts (although I do not necessarily agree with his conclusions). As set forth in Mr. Farese's report, there are two primary issues arising from this PUD. The first involves a two -story commercial building ( "Building ") which adjoins the Pebblebrooke residential neighborhood. The second involves the Stevie Tomato's Restaurant and Sports Bar. (2) Transcript from the February 2008 discussion when this matter first came before this Board. (3) Transcript from the June 2008 discussion when this matter again came before this Board. (4) A copy of the proposed Developer Agreement that went to the Board in June 2008. (5) The proposed Developer Agreement. (6) A strike- through/underline version of the proposed Developer Agreement showing the changes made to the Agreement from the June 2008 version. With the exception of paragraph 10, which is discussed below, these changes were requested by either the Board or staff. (7) A copy of the Complaint filed by Collier County against the Developer and the owners of Stevie Tomato's, which complaint seeks to shut down the bar operations (but not the restaurant operations) of this business. These issues came before this Board on February 26, 2008. With respect to the two -story building, the Developer engaged a landscape architect, and in keeping with the February 26 discussion with the Board, met with the Pebblebrooke residents at a Town Hall Meeting on March 24, 2008, to discuss ways of mitigating the two -story building's impact on the residential community. Based on this Town Hall meeting, the Developer submitted a proposed agreement Agenda item No. 12C October 14, 2608 Page 2,-f 116 at the June 10, 2008 Board meeting. After its review of the proposal, which included input from several of the Pebblebrooke residents, the matter was continued to resolve the Developer's then desire to not be a party in the existing County -filed lawsuit against Stevie Tomato's. The Developer subsequently dropped this as a condition to the Developer Agreement. Accordingly, the proposed Developer Agreement seeks to resolve the issues of the two -story building only. Should the Board approve this proposed Agreement, such approval will have no impact on the pending litigation brought by the County against the Developer and owners of Stevie Tomato's. Briefly stated, the highlights of the proposed Agreement are as follows: • Landscape Buffer: The Developer would install, at Developer's expense, a landscape buffer. The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing 8 -foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. • Preserve Buffer: As discussed below, subject to not having to obtain South Florida Water Management District approval and permits, the Developer would install a landscape buffer within the area designated in the PUD as `Preserve." • Developer would install an opacity film on Building's south -side second floor windows. The Opaque Film would be permanently installed at the time any spaces are leased on the south - side second floor. • Developer would extend the existing 8 -foot concrete wall along the west side of the Building 175 feet north on the property line to the north side of the existing dumpster enclosure. • With the appropriate administrative permissions from the County, and as discussed below, subject to not having to obtain South Florida Water Management District approval and permits, the Developer would relocate the existing dumpster 100 feet north of its current location, to be enclosed in a chain link fence with vinyl slats in lieu of a concrete wall. • The Developer would designate a `No Parking, Tow Away Zone" south of the existing dumpster location. Throughout this lengthy negotiation process it was believed by all parties that no State permits would be required for any of the proposed work. Developer is now concerned that South Florida Water Management District approval and permits may be required for both the relocation of the dumpster and the planting of native species within the Preserve, which costs were never factored into this Agreement. Developer has no desire to go through the time and expense of a District permitting process, and has added a new paragraph 10 to the Agreement. In an October 2, 2008 e -mail to me, Developer's counsel, Donald Pickworth, explained the issue as follows "I have revised the agreement I sent yesterday to add a new paragraph 10 which addresses the issues of District permitting and the imposition of conditions of approval that raise the cost beyond the cost of the improvements that are being Agenda Item No. 12C October 14, 2068 Page 3 of 116 committed. It provides that we are not obligated to apply for District permits where we would be authorized to apply (i.e. the dumpster where we own the land). If it is ultimately determined that we do not need District permits for the relocation, then the permits issued by the County will be all that is necessary and we will do the work. In the case of the preserve, the HOA would need to be the applicant. We will cooperate and provide drawings and other information that we have produced in the course of seeking county permits; however, if the HOA does not apply or does not receive a permit then the work cannot be done." Staff believes that District approval will ultimately not be required to effectuate any of the terms of this Agreement. Should the District require a permit, paragraph 10 of the Agreement provides that the County and Developer shall use their best efforts to modify the Remedial Actions so as to avoid the necessity of obtaining a permit. Any modifications will keep with the intent of this Agreement, and the cost of any modified Remedial Actions shall not exceed to costs to Developer contemplated by this Agreement. As an aside, Stevie Tomato's has installed a sound barrier around the outside seating area, which they claim has greatly reduced the noise to the community. Should the Developer's proposal be accepted, the extension of the sound wall and increased buffering in the Preserve area should also result in some reduction in noise to the community. FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. RECOMMENDATION: It is the recommendation of the County Attorney that the Board enter into this Developer Agreement, and grant an administrative waiver which will allow the dumpsters at the "Proposed DP Locations" to be enclosed by a chain link fence with vinyl slats in lieu of a concrete wall, which would otherwise be required by the LDC, and which will allow the dumpster to be located within the "10' Accessory Setback" as shown on Exhibit C. Submitted by: Jeffrey A. Klatzkow, County Attorney cia Page 1 of 1 Agenda Item No. 12C October 14, 2003 Page 4 of 116 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 12C Item Summary: Recommendation that the Board of County Commissioners enters into a Developer Agreement with DAD Development Corp., the Developer of Pebblebrooke, which Agreement would buffer and otherwise mitigate the impact of the two -story building on the adjoining residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to this building. Meeting Date: 10/14/2008 9:00 00 AM Prepared By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 101212008 5:01:57 PM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 10 1312008 12:01 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 1013!2008 3:32 Pldi Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County attorney Office 1 01612068 10:16, AM Approved By Jaynes V. Mudd County Mllanager Date Board of County County Nlanag is Office 101612008 7:04 PHI Commissioners file: / /C:AAgendaTest \Export\ 114- October° /x2014,% 202008 \12. %2000UNTY %20ATTORN... 10/8/2008 Agenda Item No. 12C October 14, 2008 Page 5 of 116 DEVELOPER AGREEMENT THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement ") is made and entered into this of , 2008, by and between DAD Development Corp., a Florida corporation, whose address is 2375 Tamiami Trail North, Suite 210, Naples, Florida ( "Developer "), and COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as "County). RECITALS: WHEREAS, the County, by and through its Board of County Commissioners (the "Board "), makes the following findings and determinations: Developer is the owner of certain developed lands within the unincorporated area of Collier County, Florida described on Exhibit A attached hereto (the "Property "). There is a two -story building located at 15205 Collier Boulevard, Naples, Florida which is within the Property (the "Building "). The Building was constructed pursuant to county permits issued in 2005 and received its Certificate of Occupancy on March 29, 2006. The Property is within the lands covered by a Planned Unit Development known as the "Richland Planned Unit Development Ordinance ", enacted as an ordinance by the County on February 12, 2002 as Ordinance No. 02 -07 (the "PUD "). The PUD repealed and superseded Ordinance 97 -27, and, among other things, changed the permitted uses on certain lands within the PUD, including the Property, from residential to commercial. The application for the PUD was filed in October, 2001, by the owner of the Property at that time, Kenco Development, Inc., by Kenco's agent. The Developer was not involved in the processing of the application for the PUD and was not aware of inconsistencies in the recommendations of the Collier County Planning Commission and the County staff regarding, among other things, the maximum number of stories allowed on buildings within the Property. The Developer purchased the Property subsequent to the adoption of the PUD without knowledge of the aforementioned inconsistencies and relied in good faith on the express terms of the PUD. WHEREAS, the Board has been advised that there is uncertainty as to a favorable outcome if the County seeks judicial remedies against Developer; and Page 1 of 7 Agenda item No. `2C October 14, 26 -o-3 WHEREAS, the County has determined that the interests of the citizens of Collier County, including the citizens residing in the residential portions of the Richland PUD will be better served by an agreement between the Developer and the County under which the Developer is required to take specified remedial actions; and WHEREAS, the Developer is willing to take the remedial actions set forth in this Agreement if the Developer is assured by the terms of this Agreement that the County will not seek judicial remedies that would require the Developer to demolish the second floor of the Building or be barred from using the second floor of the Building or that the County will not seek to enact any legislation or take any other action that would make the Building a non- conforming use or interfere with the use of the Building, including its second story, as permitted by the PUD; and WHEREAS, after reasoned consideration, the Board finds and reaffirms that this Agreement is consistent with both the public interest and with the comprehensive plan. WITNESSETH: NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the parties the receipt of which is acknowledged by each Party, and in consideration of the benefits to be obtained by each of the parties by each party's compliance with the covenants contained herein, the parties agree as follows: I. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. 2. The Developer will take the following actions (the "Remedial Actions "} at the time and in the manner specified herein: A. Landscape Buffer: The Developer will install, at Developer's expense, a landscape buffer (the "Landscape Buffer ") within those areas shown on the drawing attached hereto as Exhibit B entitled "Overall Site Concept Plan ". The Landscape Buffer will meet the following criteria and specifications: The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing 8 foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. The proposed planting as designed will install Areca Palms of at least 16 feet in height, planted approximately 10 feet on center, starting 35 feet west of the western edge of the Building, extending the full length of the Building to a point that is at least 100 feet east of the east corner of the Building. In addition, 2 rows of Cabbage palms planted 10 to 12 feet on center (per row). These trees shall be planted with a clear trunk height of approximately 16 feet to 21 feet (which equals 21 feet to Page 2 of 7 Agenda Item No. 1112C October 14, 2008 Page 7 of 116 26 feet overall height). These Cabbage palms will be planted with the fronds removed, as is consistent with Landscape standards, as this dramatically increases the survival rate of the trees. It is expected that these Cabbage palm trees should be fully leafed out in 24 months. It is understood that this buffer will be fertilized and maintained by Developer on a consistent basis to ensure the long term success and survival of the buffer. It is also understood that, as with any living product, inherent risks may exist that include acts of God, such as hurricanes and/or freezes or other events that are beyond the control of the Developer, and that such occurrences may prevent or delay the development of the Landscape Buffer to the size and opacity specified. The Developer shall take such steps as are prudent, reasonable, and in accordance with customary landscape installation and maintenance procedures in this area. Any damage that may occur to the buffer will be repaired as effectively as possible, but additional time may need to be allowed to allow the buffer to repair any damage. In the event of any conflict between the specifications of the Landscape Buffer contained in this Agreement and the specifications for the buffer contained in Exhibit B, the specifications in Exhibit B shall control. B. Preserve Buffer: The Developer will install a landscape buffer within the area designated in the PUD as "Preserve" at the location marked as such in the drawing attached hereto as Exhibit B (the "Preserve Buffer ") so long as the County approves the Preserve Buffer _e as shown on Exhibit B and no further permitting is required by South Florida Water Management District. The Preserve Buffer will meet the following criteria and specifications which are hereby approved: Three rows of Sabal Palms as follows: (1) a front row of 10 trees with 11' clear trunk ( "ct ") and 16' overall height ( "oa ") (2) a middle row of 10 trees with 16' ct and 21' oa; (3) a rear row of 11 trees with 21' ct and 26' oa; Thence going to two rows at the point shown in the drawing, consisting of Sabal Palms as follows: (1) a front row of 8 trees with 10' ct and 15' oa; (2) a rear row of 8 trees with 15' ct and 21' oa. C. Opacity film on Building's south -side second floor windows: The Developer shall install an opaque window film ( "Opaque Film ") on the Building's second floor windows as follows: (i) The Opaque Film shall be permanently installed at the time any spaces are leased on the south side second floor. (ii) The Opaque Fihn shall be of sufficient opacity to prevent persons in the second floor spaces from clearly observing the residences on Spider Lily Lane and shall be installed from the bottom of the window to a height of seven (7) feet above the floor. (iii) The Opaque Film need not be installed on the windows of any unleased second floor spaces so long as such spaces are locked and access is under the control of the Developer. Page 3 of 7 Agenda fern Pao. 12C October 14, 200 Page 8 of f 1E D. Extension of wall on west side of Building: Developer shall extend the existing 8 foot concrete wall along the west side of the Building 175 feet north on the property line to the north side of the existing dumpster enclosure. E. The Developer shall begin construction of the wall and installation of the buffers within 60 days from receipts of all necessary permits and approvals, following the Effective Date as defined herein. F. Resolution of disputes over achievement of opacity standards: In the event the County shall determine that the opacity standards for the Landscape Buffer have not been met, after being advised in writing by a professional landscape architect (LSA) to such effect, the County shall so notify the Developer in writing and the Developer shall have 30 days to take appropriate corrective actions, or the Developer shall dispute the County's determination by the written opinion of an LSA. In such event, the two LSA's shall attempt to resolve the dispute, and if unable, shall jointly select a third LSA, whose decision shall be binding. G. Relocation of Dumpster: The Developer shall relocate the existing dumpster, designated as "Existing Dumpster to be Relocated" on the attached drawing identified as Exhibit C, from the location shown on Exhibit C to one of the locations designated on Exhibit C as "Proposed DP Locations ", which are approximately 100 feet north of the existing location. Provided, however, that Developer's obligation to relocate the dumpster shall only arise if the County grants appropriate administrative permission which will allow the dumpsters at the "Proposed DP Locations" to be enclosed by a chain link fence with vinyl slats in lieu of a concrete wall, which would otherwise be required by the LDC, and which will allow the dumpster to be located within the "10' Accessory Setback" as shown on Exhibit C. H. The Developer shall cause that area shown on Exhibit C to be striped and marked as a "No Parking, Tow Away Zone ". 3. The County agrees as follows: A. The County finds, determines and acknowledges that the Developer has and had a vested right to construct the Building with two stories and at the height so constructed and that the County is estopped from asserting the contrary in any proceeding. B. That the County will take no legislative or administrative action, such as, but not limited to, a rezoning or amendment of the PUD that would make the Building a nonconforming use or in any other way prevent its reconstruction and/or repair in the event it is damaged or destroyed. C. That the Remedial Actions adequately address and mitigate all adverse impacts of the Building, if any, on the surrounding residential properties. 4. This Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act. Page 4 of 7 Agenda Item No. 12C October 14, 2008 Page 9 of 116 5. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all assigns and successors in interest to the parties to this Agreement. 6. In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Agreement. 7. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed as follows: To County: Board of County Commissioners Attn: County Manager Harmon Turner Building 3301 Tamiami Trail East Naples, FL 34112 Phone: (239) 252 -4010 To Developer: DAD Development Corp. 2375 Tamiami Trail North, Suite 210 Naples, FL 34103 Phone: (239) 643 -1429 Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight delivery service. 8. Disputes: Disputes concerning the achievement of the height or opacity standards for the Landscape Buffer or the Preserve Buffer shall be resolved in the manner set forth in paragraph 2. For all other disputes under this Agreement, the parties shall first use the County's then - current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, said remedy being cumulative with any and all other remedies available to the parties for the enforcement of this Agreement. 9. Effective Date: This Agreement shall be executed by both parties following Board approval of this Agreement. Page 5 of 7 Agenda Item No. 12C October 14, 2003 Page 10 of i 10 10. Notwithstanding anything to the contrary in this Agreement: A. The Developer's obligation to apply for and process permits for the Remedial Actions shall only require the Developer to apply to the County for an Insubstantial SDP Change. If permits, from either the County or any other governmental agency, for any of the Remedial Actions are denied at the staff level, or if conditions are placed on the issuance of any such permit that would require Developer to pay more to complete the Remedial Action than the actual cost of the work constituting the Remedial Action, then Developer's obligation to take such Remedial Action shall cease. B. If any of the Remedial Actions require permits from any other governmental agency (including the South Florida Water Management District), Developer shall have no obligation to apply for or process permits from such agency and no obligation to take any Remedial Action in the absence of a permit. However, where the Remedial Action involves work in an area owned by another person or entity, where the proper applicant for such permit would be such other person or entity, then if such person or entity, at their sole expense, obtains a permit for the Remedial Action, then Developer will take the Remedial Action, with Developer's cost being limited solely to the actual cost of the Remedial Action, and any other costs shall be paid by the permit applicant. Developer shall cooperate with such person or entity in a permit application by providing drawings and other information that Developer has obtained in the course of applying for County permits, but shall not have an obligation to spend monies solely for the agency application. If such required permit is not received, then the Developer shall have no obligation to take the Remedial Action. C. With respect to the issues set forth in subparagraphs A and B above, the County and Developer shall use their best efforts to modify the Remedial Actions so as to avoid the necessity of obtaining a permit from a State Permitting Agency. Such modifications will be keeping with the intent of this Agreement, and the cost of any modified Remedial Actions shall not exceed to costs to Developer contemplated by this Agreement. ATTEST: DWIGHT E. BROCK, CLERK L-10 , Deputy Clerk Approved as to form BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA TOM HENNING, CHAIRMAN Page 6 of 7 WITNESSES: Signature Printed Name Signature Printed Name Agenda Item No. 120 October 14, 2008 Page 11 of 116 DAD Development Corporation UO-A Page 7 of 7 Ray DeAngelis, President AaenCa lien; h1 o. 12C Gc[ober 14. 200,3 Page 12 of 11 6 Exhibit A- The Property Tract 1, Pebblebrooke Commercial Phase IV, according to the Plat thereof recorded at Plat Book 41, Pages 93 and 94, Public Records of Collier County, Florida EXHIBIT A cc co N � O r "J O. t r a) O m (z J a- 0 Q Sa - . �� _5 •:ELY S '(y sc, A g.4. '! ��v.) _ �• k. � She {,�� t-.k .�` 4V.`'. con /pct CC$ iD kt- fie+„ ri Fn jj I I � Y �' t• ie{ O - r - � ti — pq Md O O U.Nz (}co(. _O L� � v N U � -0O Q It X I �aI ass � it seRRk � EEEEEEE � � ►I t yy t ��t± �� Ili! {� . I s I ONO ,gig Hill IF I 14 % ;y fill = t J I Rrr /� \ � ..d•T i o O iLit I ail f I I I. I i II I 1 I I 6 � i l- n, ,r I i I I ; I { I I i� '= 1 Benda I'Lem No. �u © 0IDer 14, 20 t8 P qc-,e 16 u1 1 ,6 I 4 ---------------- �I 311 i 310 ----------------- 309 308 EXISTING '°' TRANSFORMER PAD ___- _.------ _ - - - -- -- 307 PROPOSED DP ' ---- ..------- - - - - -- LOCATIONS 306 r•----------------- 10' ACCESSORY 305 SETBACK LOADM r - - -- - ___----- _ -.___ 304 303 2WIPM0 VA EXISTING DUMPSTER I 302 MECK VALVE NFc TO BE RELOCATED �E 6.0' CNAINLINK FENCE ALONG \ PROPERTY LINE \ OUTDO SEATIN%IK STRIPPED NO PARKING _ TOW AWAY ZONE I! !I EXHIBIT C n Agenda Item No, 12C October 14, 2008 Page 17 of 116 Agenda Item No. 12A January 15, 2008 S.M. 20 age 1 o Tr - 711 FIFTH AVENUE SOUTH NAPLES, FL 3102.6626 TEL. 239430 -n70 FAX. 239. 213.1970 www.rkmc.com ATTORNEYS AT LAW LAWRENCE A. FARFSE Board Certified C WH Trial Lawyer Board Certified Bartoen UdgatioA l.Awyer Certified Clark Court Mediator 239 - 213 -1973 I.AFartw @rkmc.com December 7, 2007 RECEIVED OFFICE OF THE COUNTY MANAGER HAND DELIVERY DEC. G i 201 Commissioner Frank Halas ACTION Commissioner Jim Coletta Commissioner Fred W. Coyle Commissioner Donna Fiala Commissioner Tom Henning Board of County Commissioners 3301 East Tamiami Trail Naples, Florida 34I 12 Re: Richland PUD (Pebblebrooke) I Olde Cypress PUD Investigation Dear Commissioners: We have been asked by David Weigel, County Attorney, to undertake the investigation requested by the Board of County Commissioners (`BCC ") into the following matters: (i) the approval process for the Richland PUD (Pebblebrooke), including the approval of the site development plan for the Pebblebrooke Plaza in Pebblebrooke Commercial Phase IV and the permitting of Stevie Tomato's restaurant; and (ii) the permitting of 17 residences that appear to encroach upon a 25 -foot setback from a nature preserve within the Olde Cypress PUD, particularly the Grider residence. Our investigation has included a review of the public records and files maintained by the County, particularly those of its Community Development and Environmental Services Division ( "CDES "), meeting minutes and video tapes, and personal interviews with David Weigel, Jeff Klatzkow, and Marjorie Student of the Collier County Attorney's Office; Patrick White, formerly of the Collier County Attorney's Office; Jim Mudd, Collier County Manager; Joe Schmitt, CDES Director; Susan Murray Istenes, Director of Zoning; Ross Gochenaur, Planning Manager; Ray Bellows, Zoning Manager; John Houldsworth, Senior Engineer; Michael Sawyer, Senior Planner; Angel Tarpley, Planning Technician; Karen Bishop of PMS, Inc.; Craig Grider, Esq. and Richard Yovanovich, Esq. of Goodlette, Coleman & Johnson; Clay Brooker, Esq.; Bob Delaney of Stock Development; Diane Ebert of Olde Cypress Homeowners Association; Carole Kolflat, and others. The following will summarize our findings and conclusions based on our investigation. IT L A N T A - 6 0 S T O N L O S A N G E L E S M I N N E A P O L 1 5 N A F L E S S A I N T PAUL U - W A S H H IN G T O N. D C. 1 d Agenda item No. 12C _ October 14, 2003 Pale 10, of 116 Agenda Item No. 12A January 15, 2008 Page 2 of 34 Board of County Commissioners December 7, 2007 Page 2 I. Richland (Pebblebrooke) PUD The Richland PUD consists of approximately 150 acres located on the southwest comer of lmmokalee Road and Collier Boulevard (951). The Richland PUD was originally approved on February 13, 1996 (Ordinance No. 96 -03). The PUD Ordinance was repealed on June 10, 1997, and replaced by Ordinance No. 97 -27. The PUD consisted of commercial, residential, and preserve tracts. On September 24, 2001, the then current owner of the commercial property, Kenco ' Development, Inc., through its agent, Karen Bishop of PMS, Inc., filed an application seeking to repeal the then current Richland PUD and adopt a new PUD for the purpose of reducing the residential area by approximately 3.2 acres and increasing the commercial area by approximately 3.2 acres by extending the commercial tract southward along Collier Boulevard (See Exhibit A). Chahram Badamtchian of CDES was assigned as the Principal Planner for the PUD Amendment (PUDA- 2001 -AR- 1494). Chahram Badamtchian was terminated from his employment on or about December 14, 2001. At that time, the approximately 35 projects over which Mr. Badamtchian had primary responsibility as the County Planner were reassigned to the existing members of staff, who already had full work loads. The Richland PUD amendment application was assigned to Ray Bellows of CDES. Mr. Bellows was very busy with other projects at that time, and was also going through a divorce. Prior to his termination, Mr. Badamtchian prepared a Staff Summary Report to the Collier County Planning Commission ("CCPC ") in preparation for its meeting of January 17, 2002. Mr. Bellows ultimately signed the report for Mr. Badamtchian but had little time to review the report or PUD before its submission to the CCPC. Mr. Bellows does not recall e making any changes to Mr. Badamtchian's Staff Report or the amended PUD document prior to its submission to the CCPC on or about January 9, 2002. The Staff Report dated January 3, 2002 states that the "PUD contains all of the recommendations of reviewing staff" and concludes with the recommendation that the CCPC forward a petition to the BCC with a recommendation for approval. The proposed Amended e PUD reduced the residential acreage from 128 + /- to I25 + / -, and increased the commercial acreage from 21.2 acres to 25 acres; reduced the total number of residential units from 650 to 400 units; provided for landscaping in Section 2 -19 of the PUD to be in accordance with the Collier County Land Development Code ( "LDC '), with no special provisions for a buffer between the commercial and residential tracts; provided in Section 4 -2 for a maximum of 25 +/- acres of Community Commercial Uses without any limitation on square footage of commercial ' space; provided in Section 4 -5G a maximum building height of 50 feet (50') (consistent with the height limitation in the then current PUD document for the remaining commercial space); and 11 Agenda Item No. 12C October 14, 2008 Page 19 of 116 Agenda Item No. 12A January 15. 2008 Page 3 of 34 Board of County Commissioners December 7, 2007 Page 3 provided in Section 4-4 for a variety of permitted commercial uses and structures (consistent with the uses and structures permitted by the previous PUD). Of significance is that the proposed PUD Amendment included within the Iist of permitted uses "Eating and Drinking Places," as defined in Standard Industry Classification ( "SIC') Codes 5812 and 5813 published by the United States Department of Labor. SIC Code 5812 applies to "Eating Places" and is defined as: "Establishments primarily engaged in the retail sale of prepared food and drinks for on- premise or immediate consumption." SIC Code 5812 provides a list of examples of "Eating Places," which includes "restaurants." SIC Code 5813 defines "Drinking Places" as: "Establishments primarily engaged in the retail sale of alcoholic drinks, such as beer, ale, wine, and liquor, for consumption on premises. The sale of food frequently accounts for a substantial portion of the receipts of these establishments." SIC Code 5813 includes a list of examples of drinking places such as bars, beer gardens, beer taverns, cocktail lounges, nightclubs, saloons, and wine bars. 1 CCPC Approval The Richland PUD Amendment went before the CCPC at its meeting of January 17, 2002. Marjorie Student, the Assistant County Attorney who had been assigned to review the Richland PUD Amendment, was not in attendance at this meeting due to a previous commitment to attend a land use seminar in the Orlando area. Assistant County Attorney Patrick White I attended the CCPC meeting in her place. Also present at the meeting was Susan Murray Istenes, as well as other members of CDES, including Ray Bellows who made the staff presentation to the CCPC. Karen Bishop of PMS, Inc. made the presentation on behalf of the applicant. At the January 17, 2002 CCPC meeting, Ms. Bishop submitted to the CCPC conceptual plans for a 30 -foot buffer between the proposed additional commercial acreage and the residential boundary line to the Pebblebrooke Subdivision to the south This conceptual plan. which later became Exhibit B to the approved and recorded Richland PUD Amendment, is attached hereto as Exhibit B. The self - entitled "Pebblebrooke Lakes Conceptual 30' Buffer Plan" was prepared on January 16, 2002 (according to the face of the document), which was the day before the CCPC meeting. It is doubtful that staff had much time, if any, to review the conceptual plan before its presentation to the CCPC on January 17. The CCPC saw the conceptual plan for the first time during the applicant's presentation at the meeting. The Conceptual Plan showed a 30 -foot Type `B" Buffer with vegetation and a six -foot wall on top of a landscaped berm along the southern boundary of the commercial acreage. It also showed a two -story commercial building of only 18 feet in height set back an additional number of feet from the 30 -foot buffer. However, this additional setback (if it was intended) is not called ' out in measurements on the conceptual plan nor in the text of the PUD. Nor is the height of the berm specified on the conceptual plan or the PUD. Karen Bishop orally described the berm to the CCPC as having a "3 to 1 slope," such that the berm would be three to four feet high at its i i i i i Board of County Commissioners December 7, 2007 Page 4 Agenda 1`.em No. "?(' October 14, 2003 P2ge20of1 Agenda Item No. 12A January 15, 2008 Page 4 of 34 peak. A 6 -foot wall on top of the berm would result in a height above grade of eight to ten feet. However, these specifications were not described in writing in the proposed PUD document, and were not specified on the conceptual plan. Several public speakers from the neighboring Pebblebrooke Subdivision expressed concern to the CCPC concerning building heights and anticipated uses. The minutes reflect that several members of the CCPC expressed similar concerns regarding building heights, maximum square footage of commercial space, and permitted uses. Of particular concern to several Commissioners was the desire to eliminate "Drinking Places" (SIC Code 5813) as a permitted use due to noise concerns of the neighboring residents. As a result, several agreements were made on the record by the owner's representative. One specific agreement was the reduction of permissible commercial structures from two stories to one story within the 3.2 acres abutting the Pebblebrooke Subdivision. The owner's representative was asked: COMMISSIONER BUDD: How about the request that buildings located within the area of the 3.2 acres be limited to single story, the commercial buildings? MS. BISHOP: That's fine. Another agreement was that trash dumpsters would be located outside the 3.2 acres: COMMISSIONER BUDD: There is a request that the dumpsters be located outside the 3.2 acres that is going to become commercial. Is that acceptable? MS. BISHOP: I believe that's acceptable.... Another agreement was the elimination of several more intense commercial uses from the list of permitted uses. However, the owner's agent did not agree to eliminate "Drinking Places," suggesting instead that noise could be regulated by existing noise ordinances. After the close of the public hearing, Commissioner Budd made a motion (amended to incorporate suggestions by other Commissioners) that Petition PUD- 2001 -AR -14694 be approved and forwarded to the BCC with a recommendation for approval with specific modifications and recommendations, including: (i) buffers to be located outside the 3.2 acre commercial rezone; (ii) buildings within the 3.2 acre commercial rezone to be limited to a single stM; (iii) a revised list of permitted uses as agreed to by the owner's agent, (iv) commercial space to be capped at 231,000 square feet; and (v) SIC Code 5813 "Drinking Places" to be struck as an acceptable use. After a second to the motion, the following discussion occurred on the question of drinking establishments: Agenda Item No. 12C October 14, 2068 Page 21 of 116 Agenda Item No. 12A January 15, 2008 Page 5 of 34 Board of County Commissioners December 7, 2007 Page S CHAIRMAN ABERNATHY: ... well, I will discuss. I think that eliminating the drinking establishments is being unduly fussy. I think they should be allowed and dealt with as it exists. There is hardly a place in one of these activity centers that does not have someplace where somebody can watch a football game and have a couple of beers. I don't drink myself, but I think other people should not be presumed to create a nuisance just because they have a drink. So I object on that basis. r. COMMISSIONER ADELSTEIN: Mr. Chairman, so do I. 1 don't think it's our position to put something like that in. And I personally would like to see it removed. - COMMISSIONER YOUNG: I would too. I think if you are having dinner you might like a glass of wine. COMMISSIONER STRAIN: That doesn't apply. The restaurants already have that. These are strictly taverns and saloons and things like that. My concern is not that people drink; that is a disruptive element to a neighborhood. I am sure these people don't want to have to go through having monitors put out there at certain times of the day or night to see if they have decibel levels and then challenge it through county staff. That's why I am suggesting this. And that's my reason. It has nothing to do with people's morals. They can do what they want. COMMISSIONER MIDNEY: I will agree. Restaurants would be permitted and people can drink at the restaurants. COMMISSIONER RICHARDSON: Mr. Chair, maybe you can just take a consensus question on just that one issue. CHAIRMAN ABERNATHY: How many people are going to oppose this motion as long as the drinking establishments prohibition is in it? COMMISSIONER ADELSTEIN: As long as restaurants are approved, that's fine with me. CHAIRMAN ABERNATHY: I may be the Lone Ranger then. I don't know. Do you want non - restaurant type of alcohol serving establishments? i r. Benda Item No. 12C October 14, 2008 Page 22of116 Agenda Item No, 12A January 15, 2008 Board of County Commissioners Page 6 of 34 December 7, 2007 Page 6 COMMISSIONER YOUNG: I think as long as restaurants — CHAIRMAN ABERNATHY: So we have two. I think the motion can carry. I call the question. All in favor. (Unanimous response.) CHAIRMAN ABERNATHY: Opposed? Mr. Wolfley had a conflict, so he abstained. MR. BUDD: The motion carries? CHAIRMAN ABERNATHY: The motion carries.... t It was the practice of the CDES at this point in time to have staff revise an applicant's PUD document to reflect the staff's recommendations and/or agreements reached with the applicant regarding language modifications. In addition, if there were recommendations by the CCPC which conflicted with staff recommendations, the differences were to be specifically pointed out to the BCC in executive summaries and hearing presentations. Some of the changes agreed to by the applicant at the CCPC meeting were incorporated by staff into the draft PUD document. For example, a 30 -foot Type `B" Buffer was added to Section 2 -19 Landscaping; a maximum of 231,000 square feet (gross floor area) of community commercial was added to Section 4.4 -2; and SIC Code 5813 was removed as a permitted use in Section 4-4. However, some agreements made at the CCPC meeting did not find their way into a revised PUD document. The most significant omission was the concept of reducing the maximum height of commercial buildings from two stories to one story. Ray Bellows admits that he missed this point while taking notes at the CCPC meeting. He did not have the benefit of reviewing CCPC minutes before making the changes to the PUD document and presenting it to the BCC. BCC Approval The Richland PUD Amendment was set as Agenda Item 8D for the February 12, 2002 meeting of the BCC. On or about February 4, 2002, an Executive Summary prepared by Ray Bellows was submitted to the BCC along with the revised draft of the proposed PUD document. With regard to building heights, the Executive Summary provides: Lastly, since the maximum building height is currently 50 feet within the Commercial tract, staff has recommended that the maximum building height be limited to two stories for a maximum building height of 35 feet for any structure within 60 feet of a residential tract. i Agenda Item No. 12C October 14, 2008 Page 23 of 118 Agenda Item Na. 12A .;anuary 15. 2008 Page 7 of 34 Board of County Commissioners December 7, 2007 Page 7 1 The Executive Summary advised the BCC that the CCPC had approved the Petition by a vote of 7 to 0 with a recommendation of approval subject to revising the list of permitted uses to eliminate some of the more intense uses, a maximum square footage of 231,000 square feet for the commercial area, and other conditions not pertinent to this investigation. However, the summary made no mention of the CCPC's stipulation reducing the building height from two stories to one story due to the staff oversight mentioned above. The Executive Summary concludes with a recommendation for approval of the PUD document that "has been amended to reflect the... recommendations by the Planning Commission as supported by staff." The specific revisions to the draft PUD document made by staff following the CCPC meeting for presentation to the BCC included the following: I2 -19 LANDSCAPING Landscaping shall be in accordance with Article 2, Divisions 2.4 and 2.8 of the Collier County Land Development Code, as amended. In addition, a 30 -foot Type "B" Buffer shall be provided along the tract boundary line_ separating the commercial and residential land use tracts. (See Exhibit `B ") This buffer shall contain a &foot tall pre -cast concrete wall along the entire buffer. I . 4-4 PERMITTED USES AND STRUCTURES No building or structure or part thereof, shall be erected, altered or used, or land used, in whole or in part, for other than the following: A. Permitted Principal Uses and Structures... 10) Eating and Drinking Places (Groups 581281 -3) 1 4 -6 Development Standards G. Maximum height: fifty feet (50) and not to exceed 1 two stories for commercial structures within 60 feet of the residential tract boundary line. Note that the maximum height provision is inconsistent with the CCPC's motion to limit building heights from two stories to one story. It also is inconsistent with the Executive Summary indicating that staff had recommended a maximum building height of 35 feet not to i F7 Board of County Commissioners December 7, 2007 Page 8 Agenda !tarn No. 12C Gotoher 14, 2008 age 24 of 116 Agenda Item No, 12A January 15. 2008 Page 8 of 34 exceed two stories for any structure within 60 feet of a Residential Tract, whereas the proposed PUD document refers to a maximum height of 50 feet. Finally, a provision was added to Section 4-6 dealing with commercial trash dumpsters as follows: J. Commercial trash dumpsters shall be located or placed within 100 feet of any residential tract boundary line. We assume this was a scrivener's error and that the provision was intended to prohibit dumpsters within 100 feet of any residential tract boundary. The language is also inconsistent with the agreement reached with the applicant at the CCPC meeting not to have any commercial trash dumpsters within the added 3.2 acres of commercial property. The Richland PUD rezone petition was heard at the February 12, 2002 BCC meeting. Ray Bellows made the staff presentation. Karen Bishop presented on behalf of the applicant. Attorney Richard Yovanovich attended as the attorney for the applicant, but only on a transportation concurrency issue which became moot at the meeting. Mr. Yovanovich was not present at the previous CCPC meeting and had no involvement in the preparation of the PUD document. Marjorie Student and David Weigel were present from the County Attorney's Office. There were no public speakers. Mr. Bellows advised the BCC of the results of the CCPC meeting, and pointed out that changes were made to the document to eliminate some commercial uses and to provide for a landscape buffer including a 6 -foot wall with a vegetative berm as shown on Exhibit B to the PUD document. Mr. Bellows misstated the result of the building height discussion at the CCPC level as follows: Staff was also recommending that the building heights be restricted. And that came up in the Planning Commission, that we limit the building heights to 35 feet for any structure within 60 feet of the residential -tract boundary line. That is -- it came up during the planning commission meeting. Staff is recommending approval. A number of County staff who were involved with this petition for a variety of reasons attended both the CCPC and BCC meetings. No one corrected Mr. Bellows' misstatement at the hearing or pointed out to the BCC that in fact the CCPC had recommended a reduction in building height from two stories to one story. The owner's agent, Karen Bishop, did not correct the misstatement either. She has advised us that she did not review the staff report or the revised PUD document carefully prior to the BCC hearing, believing that everything had been changed as agreed. She also did not realize the inconsistency between staff s recommendation and the P Agenda Item No. 12C October 14, 2008 Page 25 of 116 Agenda Item No. 12A January 15. 2008 Page 9 of 34 Board of County Commissioners December 7, 2007 Page 9 agreement reached with the CCPC. To add to the confusion, the conceptual plan which became Exhibit B to the PUD was not revised by the applicant to show a one story building instead of a two story building. Staff had no ability to revise this conceptual drawing; this was the owner's responsibility. As a result of all of this, the BCC was not told of the CCPC's recommendation on building heights, either orally or in writing. The BCC was presented only with staff's recommendation that building heights be limited to two stories not exceeding 35 feet in height. Commissioner Henning made a motion that the BCC approve the application to rezone the Richland PUD "with staff stipulations, Planning Commission stipulations" except for the number of square feet dealing with the capacity and the elimination of two other commercial uses, specifically United States personal service use and "any other comparable use" as determined by the Planning Services Director. The motion carried 5 to 0. Chairman James A. Cotetta signed Ordinance No. 02 -07 on February 12, 2002. Thereafter, the PUD document was edited by Marjorie Student of the County Attorney's Office and Karen Bishop to "clean up" some "little things." Still the conflicts noted above were not corrected or called to the attention of the BCC. The Ordinance and PUD document were approved as to form and legal sufficiency by Marjorie M. Student. On February 20, 2002, the Ordinance was filed with the Department of State. The Ordinance was amended on April 8, 2003 to correct a "scrivener's error" in Section 6-4, paragraph 8, to provide that the responsibility to maintain a gate between the residential and commercial tracts was that of the residential property owners, instead of the commercial property owner. No other amendments have been made to the PUD since that time. 1 SDP Approval for Pebblebrooke Commercial Phase IV On February 28, 2002 (about two weeks after the rezone was approved), Kenco I Development, Inc. sold the commercial tract to DAD Development Corp., a DeAngelis Diamond entity. On June 10, 2004, DAD Development Corp. submitted a Site Development Plan Application for Pebblebrooke Commercial Phase IV, which included the commercial property ' that was added by the PUD Amendment. The project was assigned to Ross Gochenaur, Planning Manager. 1 The SDP referenced building height as "MAXIMUM HEIGHT FIFTY FEET (50) AND NOT TO EXCEED TWO STORIES FOR COMMERCIAL STRUCTURES WITHIN 60 FEET OF Tl-iE RESIDENTIAL TRACT BOUNDARY LINE," which was consistent with the PUD document as recorded. The SDP showed a two story retaillmediM office building with a height of 29', 4" on the southernmost portion of the commercial property adjacent to the Pebblebrooke residential subdivision. It further showed a 30 -foot buffer between the commercial property line and the exterior wail of the proposed two -story building. The SDP did not call for an additional setback beyond the 30 -foot buffer as depicted on Exhibit B to the PUD. Because the side setback requirement in the PUD was only 10 feet and 30 feet was provided, and because the - I Board of County Commissioners December 7, 2007 Page 10 I I f;ge€ a- !:ern r<<o. ; 2 1- October 14. 2000 Page ?n o` I.6 Agenda }tern No. 12A January 15, 2008 Page 10 of 34 PUD document did not specify any additional setback beyond the 30 -foot buffer, Mr. Gochenaur did not believe that he had any basis to require setback beyond the 30 -foot buffer area. In ' addition, Mr. Gochenaur has explained that a five foot sidewalk and underground utilities shown on the SDP within the 30 -foot buffer area are considered permissible within buffers. With regard to the height of buildings, Mr. Gochenaur noted on his checklist: ' 2 °d review: an error in PUD Ord. 02 -07 indicates the height of buildings abutting the residential tract boundary is 2 stories or 50 ' fL It should be 2 stories or 35 & A Scrivener's Error will correct this, but please change the required height in table to reflect 35 rather than 50. Mr. Gochenaur does not recall how he knew in 2004 that building heights in this area of the development were to be restricted to 35 feet rather than 50, other than the fact that 35 feet is typical for a two story building. He was not aware of the discussion at the CCPC level two years earlier to limit building heights to one story, and it is not the practice of the planning managers to research meeting minutes or verify that the language of PUD document is consistent with actions ' taken at BCC or CCPC meetings while reviewing an SDP application. In any event, the "scrivener's error" in the PUD document reducing maximum building height from 50 to 35 was never corrected, nor was the SDP table changed to reflect this height as suggested in Mr. ' Gochenaur's review notes. He does not recall why. That notwithstanding, the actual height of the proposed two story building shown on the SDP was less than 30 feet. Because this building height was below the maximum height provided in the language of the PUD document (with or without the correction of the "scrivener's error" to 35 feet), the SDP was approved by staff on December 6, 2004, Regarding the landscape buffer, the plans presented at pre- application meetings apparently did not show a berm. Michael Sawyer, the County's landscape reviewer at the time, entered a comment on his checklist after the first review as follows: Reference site plan sheet 11 of 15 Section A -A. Revise this cross section to meet PUD exhibit `B ". Specifically, the section does not include the "Landscape Berm" as illustrated. Note that the 6 foot wall/fence must be located at the top of the berm. To address this comment, sheet I I of 15 was revised to show a berm, with a six -foot landscape wall centered on top of the berm (See Exhibit C). Height dimensions for the berm are not specified on the drawing, but there is reference to a 10 -1 slope starting at 5 feet from the property line, which would result in a berm of only about one foot. The drawing shows that the top of the "berm" is actually below the floor slab of the building. This is not consistent with the conceptual 30 -foot buffer plan attached as Exhibit B to the PUD, which shows a berm higher u - -- -I Agenda Item No. 12C October 14, 2008 Page 27 of 116 Agenda Item No. 12A January 15. 2008 Page 11 of 34 Board of County Commissioners e December 7, 2007 Page 1 I than the floor slab of the commercial building, although again no dimensions were specified. Without having dimensions specified either in the language of the PUD document or Exhibit B to the PUD document, Mr. Sawyer did not feel that he had a basis to reject the revised drawing ' showing a berm of some degree on sheet 11 of 15. As built, there is a drainage swale between the commercial building and a small berm i V J under the landscape wall. (See photographs attached as Exhibit D). The wall itself appears to be closer to 8 feet in height rather than 6, resulting in a total height close to that shown on Exhibit B to the PUD. However, the landscape buffer is dwarfed by the two story commercial building set back 30 feet from the property line (See Exhibit E). Stevie Tomato's Sports Page The Building Permit for the two story and one story commercial buildings within the rezoned commercial property was issued on January 10, 2005, and Certificates of Occupancy were issued on February 28, 2006. In September 2005, Stevie Tomato's Sports Page submitted an application for a permit to build out a restaurant in the southernmost portion of the one story building within the Pebblebrooke Center. Stevie Tomato's is commonly known as a "sports bar," but has a full menu of items for lunch and dinner. According to the company's counsel, Clay Brooker, more than half of its revenue is generated from food sales as opposed to beverage sales. Its Occupational License issued by Collier County is under the classification of "Restaurant" Restaurants, including those with liquor licenses, are a permitted use under Section 4-4 of the Richland PUD. Because Stevie Tomato's is a restaurant (as well as a sports bar), a permit was issued by staff as being consistent with zoning regulations. Outdoor seating was approved as an insubstantial change to the Pebblebrooke Center SDP. Outdoor seating and bar areas for restaurants are typically considered by staff as an accessory use to the principal use of a restaurant. The existence of Stevie Tomato's at the southern end of the Pebblebrooke Center close to neighboring residences in the Pebblebrooke Subdivision, particularly the noise generated from the outdoor bar and seating area which is open until 2:00 am., has caused numerous complaints from the neighboring property owners. The BCC viewed portions of a videotape made by a residential property owner at its September 25, 2007 meeting, which speaks volumes in support of the neighbors' concerns. It is clear from the minutes of the CCPC meeting of January 12, 2002, that disruptive noise was a concern to the Commission which led to the elimination of "Drinking Places" as defined in SIC Code 5813 as a permitted use. However, outdoor restaurants and bars associated therewith were not prohibited, either at the CCPC or BCC levels, or in the approved PUD. Nor is there any restriction in the PUD as to where, within the commercial property, such uses may exist. Agenda Item rjo. Octo; jer 14, 20013 Page 28 of 115 Agenda Item No. 12A January 15, 2008 Board of County Commissioners Page 12 of 34 December 7, 2007 Page 12 Conclusions i Based on our investigation, we have concluded the following: ■ I. The approval of two story commercial buildings in the Richland PUD rezone resulted from human error and failure of communication. The CCPC clearly wanted the building height reduced to one story. The applicant agreed. However, this agreement was not carried forward by staff in its Executive Summary to the BCC or in the PUD document presented to the BCC. As a result, the BCC approved a PUD document allowing two story structures (up to 35 feet as discussed but 50 feet as written), without any knowledge that the CCPC had recommended and the applicant had agreed otherwise. 2. There is no evidence that staff intentionally misled the BCC, or failed to correct R the PUD document on purpose as a "favor" to a developer or due to any improper influence, and we do not find that any such misconduct occurred in this case. 3. Staffs error was compounded by the applicant's failure to: (i) confirm that the applicant's agreements with the CCPC were properly reflected in a revised PUD document; (ii) revise the conceptual plan to reflect a one story commercial building as opposed to a two story commercial building, and (iii) correct staffs presentation to the BCC regarding the CCPC's recommendations regarding building heights. The successor developer, which acquired the property shortly after the rezone was approved, was not a party to any agreements made between the applicant and the CCPC and proceeded with development as permitted by the PUD document actually recorded. 4. We find no fault on the part of staff in approving the SDP based on the PUD document as recorded. A two story structure was specifically allowed by the text of the PUD document, and Exhibit B to the PUD showed a two story commercial building. The PUD document required a 30 -foot setback or buffer from the property line (which is greater than the 10 -foot side yard setback otherwise allowed by the PUD), and this was what was permitted. The drawing on Exhibit B showed the building being set back further from the 30 -foot buffer area, but no dimensions were specified. When a conceptual drawing is inconsistent with the language of a PUD document, staff follows the express language of the document, and this is what occurred in this case. 5. The "berm" as built is not the 3 to 4 foot berm discussed at the CCPC meeting or shown on Exhibit B to the PUD. Again, however, no dimensions are specified for the height of the berm either in the language of the PUD document or on the conceptual plan. It is suggested that if dimensions of berms are important at the planning level (as they appear to have been in this case), such dimensions should be specified in the language of the PUD document. 6. Although the result to Pebblebrooke residents is intolerable, we find no fault on the part of staff in approving the permit for the construction of Stevie Tomato's. Although the I Agenda item No. 12 October 14, 2008 Page 29 of 116 Agenda Item No. 12A January 15. 2008 Page 13 of 34 Board of County Commissioners December 7, 2007 Page 13 I CCPC tried to eliminate noise typically associated with a "bar" or "tavern," eliminating SIC Code 5813 was not sufficient to prohibit a use such as Stevie Tomato's which operates a restaurant and bar permitted by SIC Code 5812. In our opinion, a sports bar does not fit neatly within either of these SIC codes. If sports bars are intended to be prohibited, express language to this effect should be included in the PUD document rather than reference to the SIC codes. I7. There is no evidence to suggest that the SDP approval or building permits issued in this case violated established practices or were the result of any "special favors" or improper ' influences on the part of any party. R. Olde Cypress PUD The Olde Cypress PUD was approved by the BCC on April 27, 1999, Ordinance No. 99 -27. This approval resulted from a petition to rezone 500 acres of land off of Immokalee Road, east of I -75, formerly known as the Woodlands PUD, to a residential and golf course community known as Olde Cypress. The applicant for the rezone petition was OIde Cypress Development, Ltd., a company then owned in part by Paul Hardy. The Olde Cypress PUD contained 176.2 acres dedicated as a Nature Preserve and Wildlife Sanctuary. Those preserve areas were platted as Tract A in Olde Cypress Unit One, approved by the BCC on April 13, 1999. The original plat showed "TRACT A CONSERVATION (D.E.)" (Drainage Easement) along with golf course tracts and large tracts for "Future Development." (See for example Exhibit F). On June 22, 1999, the BCC approved a replat of Tracts 2 and 3 (Future Development Tracts) as Olde Cypress Unit Two, which created 70 single - family building Iots on Wild Orchid Court and Treeline Drive. On August 3, 1999, the BCC approved a replat of Tract 5 (Future Development Tract) as Olde Cypress Unit Three, which created 55 single - family building lots on Lone Pine Lane. Both replats (Unit Two and Unit Three) showed Tract A and referenced the Plat Book and Page numbers for Olde Cypress Unit One where Tract A adjoined the building lots. (See for example Exhibit G.) However, the replats did not label Tract A as a conservation or preserve area. The rear yard and side yard setback requirements for the residential units are set forth in the Development Standards, Section 7.05 of the PUD document. For single family detached dwellings, the PUD required a front yard setback of 25 feet; a side yard set back of 5 feet; and a rear yard setback of 20 feet for principal structures and 10 feet for accessory uses. On September 12, 2000, the BCC approved an amendment to the Olde Cypress PUD, Ordinance No. 2000 -53, to correct a scrivener's error in Section 7.05 so as to provide that "accessory uses such as pool enclosures may be attached to principal uses and accessory uses may be set back five (5) feet from side or rear nror)erty lines." 1 - - -- �enaa Page 3u c 11 L February 26 -27, 2008 CHAIRMAN HENNING: Motion carries, 3 -2; Commissioner Halas and Commissioner Coyle dissenting. COMMISSIONER HALAS: I hope you -- CHAIRMAN HENNING: We're moving on. We're moving on. We've got a four o'clock time certain. It's 4:30. Item ##12A DISCUSSION REGARDING THE RICHLAND PUD (PEBBLEBROOKE) — MOTION TO SEEK LEGAL ACTION TO CLOSE THE BAR AREA AT STEVIE TOMATO'S -- APPROVED MR. MUDD: You have a four o'clock time certain. This is item 12A. It's a discussion regarding the Richland PUD, Pebblebrooke. I believe Mr. Klatzkow is going to present. CHAIRMAN HENNING: How many public speakers do we have? MS. FILSON: Six. MR. KLATZKOW: We had everything set up but the power outage took it out, so it's going to take just a minute. COMMISSIONER FIALA: Are we still under power outage? MR. MUDD: Yes. I haven't been -- I have been updated otherwise since the last time. The state had a little bit of a blurb as far as power grid is concerned, and there's still sections of this county and other places in the state that do not have electricity. COMMISSIONER FIALA: We're still on generators, right? MR. MUDD: We are, yes, ma'am. I haven't seen it click off yet. MS. FILSON: I have seven speakers now, sir. CHAIRMAN HENNING: County Manager, you might want to ask your staff if there's any other PowerPoint presentations they need to pull up and start working on that. MR. MUDD: Yes, sir. Next break I'll get it back up on the Page 208 October 14, 2008 - - Page 1 c February 26-27, 2008 machine so it's there, but I -- MR. KLATZKOW: Jeff Klatzkow, for the record. County Attomey's Office. This is coming back at a request of the board. This is a discussion on Pebblebrooke, and I will be seeking board direction on this. What I have on the monitor is the website for Stevie Tomato's at Pebblebrooke. I figured they can describe themselves better than I describe them. It's more fair, I think, of what Stevie Tomato's is. Two issues in Pebblebrooke. The first is Stevie Tomato's and the second is this two -story building, and I'd like to talk about Stevie Tomato's first. The Planning Commission had an extensive discussion with respect to this project, and they were very cognizant that this was being built adjacent to a residential neighborhood. And what they said was, we're okay with restaurants where somebody could sit down and have a glass of wine, but we just don't want any drinking establishments here. And that was codified into the PUD ordinance as follows: It says, eating and drinking places, group 5812 only. Now, I'm talking a little -- we're going to have to get into a little zoning here. But what we do in our PUD's is refer to standard industrial codes so that people will know what uses they can and cannot do. And the standard industrial codes that we use is a 1987 book, a Standard Industrial Classification Manual is -- in the LDC. Its how we define what uses can be done. And what you see is that the standard industrial code manual breaks down these businesses in two types of places. One is an eating place and one is a drinking place. And you'll see that sports bar isn't in any one of them, okay. What they say about a drinking place is the sale of food frequently accounts for a substantial portion of the receipts of these establishments. So we're just not talking about a traditional bar where Page 209 Aced Aa ?em No. 1 `C Faye 32 of 1 !c February 26-27, 2008 you go to drink. You're allowed to eat there and get your chicken wings and hamburgers and everything else. If you can get the -- now, if you look at the pictures that are flowing through their own website, I see one picture of a bar after the other. The picture up there currently is their outdoor seating area. A better picture, which I took Sunday morning, is this one. It has been staffs position -- and I'm not going to say it's an unreasonable position. But it's staffs position that this is a seating area that's accessory to the restaurant use. Another person could argue that this is an outdoor bar. It is dominated by the bar. There are TVs running around. My experience there -- and I do live in the neighborhood -- is that people come here and they drink and they watch sporting events and they smoke. That's why it's outdoors. It doesn't overlook the ocean, it doesn't overlook a park. It overlooks predominantly a parking area. But the attraction isn't the view. The attraction is you can sit down and have a beer and you can smoke, which is why there are no walls around it. And we have many other establishments in town that are going the same way. And the question I have for the Board is, if we're going to approach this as a restaurant who has, as a secondary use, this drinking area, then at that point in time there's nothing else for us to do. It is what it is and the neighborhood will have to live with it. If it's the Board's feeling that what we have here is an outdoor bar, then we have a different issue. And one approach to take would be to authorize the County Attorney's Office to bring suit to shut down that bar as in violation of the PUD ordinance. Now, if I can go back to their own website, just to look at the calendar of events of what they have. What you typically see at Stevie Tomato's is during the day they are a restaurant. They have kid specials during the day, they have a roast pork loin special, but the place converts at night from a predominantly restaurant use to a bar Page 210 Agenda !tern No. 12C October 14, 20078 Page 33 of 116 February 26-27, 2008 use. They have Monday night football, they'll have Texas hold 'em tournaments. They have late night happy hours. They've got the specials on the Bud Lights and bottles. And as you go through the calendar, it's the same thing week after week. During the day they're a restaurant, and during the evening they're a bar. So the argument would be if we took this to court, is that you were permitted in your zoning ordinance or your PUD to be a restaurant. You are not permitted to be a bar. What you are is a hybrid. You're both, okay. During the day you're a restaurant and at night you're a bar. I don't believe that it is the restaurant activities that the people in Pebblebrooke are protesting. I think it's the bar activities they're protesting. I think it's -- and Commissioner Henning and I were at a homeowner association meeting, and I think it's the drunks that leave there at two a.m. that are bothering the community, and I think it's the people in the outdoor seating area 1:00 p.m., 1:30, drinking and talking loudly that are bothering the community. And that's the portion of the business that we would target. Again, if you feel this is predominantly a restaurant which has an accessory use as a bar, then that's the end of it. But if you feel that what this is is both a bar and a restaurant and you want us to close down the bar, then I'd ask you to direct the County Attorney's Office to bring suit. Now, I am not going to tell you that we are going to be successful in this suit. I think this, quite frankly, is a coin flip. I Googled these two SIC codes. Half the sport codes -- half the sports bars in this country consider themselves restaurants and half the sports bars in this country consider themselves bars. It's -- it could go either way. But if you want this thing closed down, that's how we're going to do it. CHAIRMAN HENNING: Commissioner Halas? Page 211 Agen��a Paae 34 of f i,` February 26 -27, 2008 COMMISSIONER HALAS: Yeah. We may have a difficult time, especially if they can prove that 50 percent of their income is by the sales of food. I think another avenue that we need to address -- and I've been basically preaching to the choir -- and that is, if we come up with a stringent noise ordinance, that will put a stop to it real quick. With the noise ordinance that encompasses the -- where the sound carries over into people's homes, inside the homes, in their back yards. I think if we have a -- I'm hoping that we come forth with an LDC amendment with a stiffer noise ordinance that it will address this, and I think you'll see the television sets and everything else disappear out there because they'll be cited many times. But when you look at somebody that has a restaurant, I understand where you're coming here, but I think you might run into some -- it's going to be interesting to see how this turns out, because if they can prove they're 50 percent or more, even during the bar times, it would be considered bar times. MR. KLATZKOW: Sir, it would be a good defense. I don't think it's the dispositive. Under the SIC codes, you're allowed to be a bar with the substantial proceeds of food use. What I would argue is that they're a hybrid. During the day they're a restaurant, at night they were a bar. Your zoning says you can be a restaurant, but you can`t be a bar. They're both. CHAIRIV AN HENNING: Yeah. I say, let's shut down the bar. If they want to become a restaurant, that's fine. COMMISSIONER FIALA: I go along with it. CHAIRMAN HENNING: Commissioner Coletta? COMMISSIONER COLETTA: Yeah. And I'd like to see that, too. I have similar concerns that Commissioner Halas brought up. What is substantial? You know, no one's defined that. Commissioner Halas said 50 percent -- or 51 percent or more, but I don't know where you got that number. It could be 607 70, 80. Page 212 ngen-a -Tem No. October 14. 2008 Page 35 Of 1 6 February 26 -27, 2008 CHAIRMAN HENNING: That's staffs interpretation. Can you put up the SIC code and explain that to the Board of Commissioners again, please. COMMISSIONER COLETTA: Thank you, Commissioner Henning. What am I supposed to be looking at? CHAIRMAN HENNING: Well, up above you've got SIC code 5812, which is restaurant, and then you have below that 5813, so we just need to zoom into it. 5813 is a drinking place. And if you just read what is highlighted. COMMISSIONER COLETTA: Oh, okay. So 5812 is what's allowed. 5813 is not allowed. CHAIRMAN HENNING: Correct. COMMISSIONER COLETTA: And so that's -- food frequently accounts for a substantial portion of the receipts of these establishments. CHAIRMAN HENNING: Yep. That's a bar. COMMISSIONER COLETTA: One thing that I found to be very curious was the fact that they have down there on the menu something about an acoustic dinner? What's that? MR. KLATZKOW: Well -- COMMISSIONER COYLE: It's a loud happy hour. MR. KLATZKOW: They do do live shows there, or they have live entertainment there. That could be that. COMMISSIONER COLETTA: Yeah. And the only other thing, you know, with the great discussion that we're having, do we know if the owners of the establishment have done anything recently or are planning to do anything? Are they here to be represented to be able to tell us what their plans are? MR. KLATZKOW: I believe they are here, but I will tell you that we have had a deafening silence from them on this issue from day one. The owner of the shopping center -- and I'll get into this a little later -- has been very cooperative with us. Stevie Tomato's has not. Page 213 Agenda item r4o. February 26 -27, 2008 CHAIRMAN HENNING: Okay. Go ahead. COMMISSIONER COYLE: Was that a motion you made earlier about proceeding with closing down the bar? CHAIRMAN HENNING: Yeah, that's my motion. COMMISSIONER COYLE: I'll second it. MR. KLATZKOW: Just for clarification, I could bring a cause of action just on the outdoor bar or I could bring in a cause of action for both the outdoor bar and as well as the indoor bar. It's both. CHAIRMAN HENNING: You see the thing, a normal restaurant doesn't have the hours of operation that a sports bar has. You know, you do have some anomalies out there with Waffle House or something like that, but that is not a place where they serve liquor. Those are to serve the people who get up damn early in the morning or the people who leave Stevie Tomato's to get something to eat. It needs to be a restaurant. The hours need to be defined. It needs — that's it. Stop the bar practice. MR. KLATZKOW: Okay. CHAIRMAN HENNING: Okay. COMMISSIONER FIALA: Inside bar or outside bar? CHAIRMAN HENNING: All over. What I'm saying, inside /outside hours. It's supposed to be a restaurant, and most of those go to -- I don't know. I mean, I usually go -- MR. MUDD: A lot -- during the week, a Iot quit serving at nine o'clock, and then on the weekends, because it's high season, they night go to 10:30, max, 11 o'clock before it closes. CHAIRMAN HENNING: I'm not going to call the motion because we have -- COMMISSIONER COYLE: I'll second that motion. CHAIRMAN HENNING: And you did. We have -- MR. KLATZKOW: There are speakers. CHAIRMAN HENNING: We have a whole bunch of speakers. Now, the next issue -- Page 214 Agenda Item No. 12C October 14, 2003 Page 37 of 110 February 26 -27, 2008 MR. KLATZKOW: Now the second issue. The second issue is the two -story building. And the developer is here. I don't know if you want to see his presentation. The original idea was that we were going to show the presentation to the people of Pebblebrooke first. The presentation was only completed just a few days ago, so we never had the opportunity. They're here now to show it to you if you'd like to see it, or we can wait. CHAIRMAN HENNING: What do you want to do? You want to see it? COMMISSIONER FIALA: Sure. CHAIRMAN HENNING: Okay, go ahead. It still needs to be presented to the restaurant -- the residents. It can't be done in this type of a setting. MR. KLATZKOW: Mr. Pickworth? MR. MUDD: Do you want to use the overhead, do you want to use the computer? MR. PICKWORTH: We have several drawings, so I guess that would be what we need. CHAIRMAN HENNING: Mr. Pickworth, thank you. MR. PICKWORTH: Good afternoon, Commissioners. I'm Don. Pickworth. I represent DAD development, which owns the shopping center. They acquired the shopping center after the zoning actions -- which have formed the basis of the concerns about the two -story building -- had taken place. In fact, to clarify some information that has been promulgated that some -- a good bit of which is not exactly correct, DAD entered into a contract to purchase this property. The contract provided that the previous owner would -- it basically provided that the property would have an additional number of square feet of commercial authorized, and it was the responsibility of the previous attorney to Page 215 Agenda eiida i`en—, CVO. 12C February 26 -27, 2008 obtain that. There was nothing in the contract, no condition about number of stories or any of that. That was not an issue for these purchasers. They wanted to know that they could build a number of square feet of commercial that they would be able to build. It was the responsibility of the previous owner to obtain the zoning using his consultants and at his expense. He went through the process. We were not part of or aware of all of this. You know, all this talk about an agreement for one story at the Planning Commission and all of that, we were not part of any of that. After the board had taken its final action on the PUD and the PUD was signed, we received a letter from the previous owner saying, basically, the condition of the contract has been fulfilled. Here's the PUD which shows you can build the number of square feet of commercial which you contracted to be able to build. Let's set a closing, so we closed on the property. In fact, the -- had no idea there was an issue of two stories until really long after the building was built; really not too long ago was the first time that issue had come up. The owner has the -- obviously the awareness of Stevie Tomato situation has been around for a long time. And they have met with representatives of the county on that. They either funded entirely or a substantial part -- the previous noise study that was done, so they've taken part in that. But now the two-story building issue has arisen. And so from the standpoint of DAD Development, the question is, how can we find a way to move on from there? Obviously the building is not going to be voluntarily torn down or anything like that because their position is that that building was totally Iawfully built. But we have engaged the services of a landscape architect to see what could be done to adequately screen, through landscaping, the two -story building. Page 216 Agenda item -Moll- Page 39 of 116 February 26 -27, 2008 And we have — and again, it's -- these -- there's probably a few details that we still need to work out. We just found out late last week that we'd be able to do some enhanced planting in that preserve which would help screen off one end of the building, so we very quickly showed some prospective plantings in there. So we're still -- we're still working on that. But I think you can see on the drawings what we're basically planning to do, which is to provide a heavy landscape screen alongside of the building. You can see that. It then wraps around the end of the building, and those plantings at the end of the building there, those are actually going to be in the preserve. As you may know, there was a fire in there some time ago. It got pretty torn up by the fire department, and so it's not -- it doesn't - the preserve itself is not very thick in there, so the idea would be to plant some native species in there which would act as a vegetative screen for two or three homes that are located -- they would otherwise be able to look through the preserve and see that building. We had thought -- and I understand this is still going to be done. We certainly are looking forward -- we thought we were going to have a second meeting with the people in Pebblebrooke, and we certainly look forward to such a meeting where we can kind of go through all these things in as much detail as anyone wants to as far as exactly what's being done. But I just wanted to give you an overview of what -- of what we're ready to commit to do. There's also going to be a -- I think one of the drawings may show a concrete wall — did you show that? MR. MUDD: This one? MR. PICKWORTH: Yes, yes. Okay. You see that concrete wall, and then that's the preserve right behind it, and those are the enhanced plantings that would be in the preserve. I guess -- I'll certainly answer any questions, but I wanted to let you know the direction we're going. And, you know, we look forward Page 217 Agenda Item No. October 14. rr Page 4(0 of f f February 26 -27, 2008 to, you know, further interface with the residents of Pebblebrooke, to move this along. CHAIRMAN HENNING: Questions? (No response.) CHAIRMAN HENNING: Thank you, Mr. Pickworth. COMMISSIONER COYLE: I would like to thank you for being so cooperative. It's our understanding from the County Attorney that you have been very cooperative in trying to address the residents' concerns. I think that's very good. I appreciate that. MR. PICKWORTH: Thank you. CHAIRMAN KENNING: Yeah. I just want to mention that the board gave directions to see if there's any kind of resolution to this outside of going to court, and DAD was very responsive to that. But, again, that -- residents haven't seen that. But I just wanted to clarify what the board's direction was, okay? Okay. Let's call up the public speakers. MS. FILSON: We have seven speakers, Mr. Chairman. The first one is Adam Cohen. He'll be followed by Walter Bruno. And if I can have the second speaker please come up. Okay. Go ahead. MR. COHEN: My name's Adam Cohen, and I live at 298 Spider Lily Lane in Pebblebrooke. I'm here just to implore the commission to institute the scrivener's error. I do not believe that any kind of mitigation through plant life or walls can bring back our quality of life, could bring back -- you know, we've -- you know, we've got quite a few homes that are for sale in our development now, just about everybody does. We've got folks driving down there, driving that -- when they see that wall right there, they see that wall, renters will not come any further and they turn around and leave, you know. So I'm just imploring you all to do the right thing, go back to the PUD that was supposed to be instituted. Page 218 - -- Agenda Item Nlo. 12C d riQR Page 41 of 116 ' February 26 -27, 2008 We've got more than just a two -story building. First of all, it's too close, too close to the homes that are right up against it. That's unacceptable. It's unacceptable for many -- number of reasons. There's dumpsters every day being -- and I believe one of the other speakers has a video of that -- of dumpsters at all hours of the day and morning being dumped, and these folks -- we're talking 30 feet. Its very loud. I mean, I'm not even 30 feet. I'm across the street and I hear it. These folks are being woken every single day. And I do appreciate the -- Stevie Tomato's, the way that's being handled, but that's not the only issue. The issue is, somebody made a mistake, and it seems like the residents of Pebblebrooke are the only ones being accountable for it. And that's just my opinion. Thanks. MS. FILSON: Walter Bruno. He'll be followed by Angela Joseph. MR. BRUNO: Walter Bruno, 288 Spider Lily Lane. The last time we were here, I think it was Ms. Fiala, had questioned if there's problems still with noise. We have a short DVD to play that will show you there's still problems, and a major ongoing problem is the dumpster collection, 5:00, 5:30 in the morning. Again, like I say, I also feel that the scrivener's error needs to go through so that any sort of negotiations over this property can begin in earnest. (The DVD is now being played.) MR.13RLTNO: That's 5:30, 5:40. And there's a shot from a resident's patio. I think he is about 200 feet away. CHAIRMAN HENNING: You want to say something, Commissioner? COMMISSIONER HALAS: I think this is a good example of why we need a stiffer noise ordinance, and not only just in this neighborhood, but there's going to be other locations throughout the county, and that's why -- I know there's other communities that have addressed a stiffer noise ordinance because the people do need relief. Page 219 erl8_er7 ''r O. October 14. 2003 Pag_e4 2 of 11 c: February 26-27, 2008 MR. BRUNO: Have they thought of the -- CHAIRMAN HENNING: Well, we know the bar -- MR. BRUNO: Also, there was a provision, it's supposed to be part of the PUD, I believe, that the garbage disposal be handled off site, which I have no idea how they'd do it, but that was supposed to be in the original PUD that was approved, and also one of the things that never made it in. You know, I think we need the scrivener's error. Thank you. CHAIR1VLA,N HENNING: May we have a copy of that DVD, Troy. MS. FILSON: The next speaker is Angela Joseph. She'll be followed by Greg Rearden. MS. JOSEPH: Good afternoon. Angela Joseph, 281 Spider Lily Lane in Pebblebrooke. And I'd like to say I regret having to be here, number one, because as citizens we trusted that years ago this would be settled. My issue, obviously, I am the home directly behind the wall. I'm the closest property there. It's 28 feet from my property line, and I had the second -story windows that looked into my home. And I can show pictures of that. But to keep it short -- I know there are a lot of people that have to talk. In viewing -- trying to do research and viewing things here, on your website says, that the commission, your obligation is providing services to protect the health, safety, welfare, and quality of life of the citizens of Collier County. I came across the organizational chart of the county, wanting to go -- where do we go from here? We're not happy with how things are going. Who does the county answer to? Can you tell me, Mr. Henning, who the top of the organizational chart is? Us, the citizens by your display? I see you responding to corporations and developers and businesses and not to us. Page 220 Agenda Item No. 12C October 14. 2003 Page 43 of 1 i February 26 -27, 2008 CHAIRMAN HENNING: I could remove my motion. MS. JOSEPH: A corporation -- a corporation is not a citizen, as far as I understand. Correct me if I'm wrong. But if things had been handled the way we were promised, the original meeting years ago, I would not have had to postpone meeting my family in grief right now for the loss of a member of my family because this is so important to handle. I shouldn't have to be here right now. I want not to have to deal with -- and I don't know. Can this be viewed? MR. MUDD: Sure, if you give it to me. MS. JOSEPH: The first picture was my home and the privacy I had on my patio. Yeah, we all agree, that wasn't going to stay. Then I had to go from that to this. And excuse me a minute. My mind is elsewhere, obviously. I don't know if that can be projected. But what you will see now is what I have to view now every morning. Excuse me for the time, _. but you have to see this. And now you're asking me to go through, in that little bit of 28 feet what is going to take -- and yes, developer, I thank you for all the efforts you've taken to try and come up with a solution. I am -- I am pleased with the efforts, but I don't want to have to live through that. Imagine behind me, living through now again, from all of that you saw, now you're going to dig up and you're going to put walls and trees and how close that is to my pool, and what will that do. CHAIRMAN HENNING: You're going to have to wrap it. MS. JOSEPH: Thank you. I just want to know, what will that do to my property. I want a scrivener's error, I want answers. I don't want to have to live through it, and I've spoken that before, and I thank you for your time. CHAIRMAN HENNING: Thank you. MS. FILSON: The next speaker is Greg Rearden. He'll be followed by Kim Kish. MR. REARDEN: Hi. My name is Greg Reard.en. I live at 297 Page 221 i cenda I ?ern No. Pace 44 of ^ 1 February 26 -27, 2008 Spider Lily. We've had meetings before on the issues, and you know the issues are noise. You know the issues are the two -story building. I know that there are efforts being made to try and rectify the problem. I understand some landscaping may or may not do the trick; however, I do wish that you would make a motion to close the bar, stop the liquor inside and out, because I'm five doors down from the bar, can look right into the back of the bar and hear nothing but screaming, yelling. And you've seen the video before, all of you have, and today's video. It's very loud. We can't even go outside. If we have company, we can't go out on the lanai, have any privacy. Our lives really, we feel like, are being, little by little, day by day, just been affected by the noise. I really feel sorry for the lady that has to live there, you Know, next to the building, but I also feel sorry for the person that lives directly behind Stevie Tomato's and listens -- even that person that took that video is even three or four doors down. There is even some closer that can hear the noise even louder. You know what you get when you start doing the drinking and the motorcycles and the horn blowing. And there's one truck up there that has some kind of big train sound that you can hear from a half a mile away. It's very loud, and our homes -- even with my TV on inside my house, I still hear the noise. I personally believe that the only way you're going to be able to solve the noise is to put up a big wall behind the building, do all kinds of landscaping to try and do that. But as far as where the building's concerned, you know, I'm asking for scrivener's errors as well to implement some of the mistakes that have been made by the county and/or the inspectors, code inspectors, whomever they may be. Thank YOU. CHAIR M HENNING: Thank you. MS. FILSON: Kim Kish. She'll be followed by Jeri Buehler. Page 222 Agenda Item No. 12C Oetnber 14. 2008 Page 45 of 116 February 26 -27, 2008 MS. KISH: Hi, again. I want you to know I'm on first name basis with all of my sheriff deputies within the 951IInunokalee area. The point I wanted to make tonight is that the entire issue, if you can continue to refuse to put forth a vote for the scrivener's error that your own staff report shows and recommends and the continued lack of oversight by many within this county, including Mr. Weigel who was the attorney during this entire period that allowed this issue to come to fruition (sic), you are, in essence, saying that the Planning Commission and its recommendations and its very existence are irrelevant and unnecessary, that each board member here in the future can make decisions regardless of the will of the people, the set laws, and the regulations, that you and you alone will be the deciding factor. I don't believe this is your intent. For you to try to put forth an argument that a lawsuit will last for many years is something that will have to be handled, but not at the expense of the people who trusted you to speak for us and protect us. The only choice is to call for and approve a scrivener's error posthaste. The consequences of the poor oversight of staff in allowing a developer's agent -- and I think this is the biggest point on this issue -- that the developer's agent was allowed to clean up and sit with staff and remove the words "no" and "not allowed" and that came forth for you to vote on is, perhaps -- you know, it will be a test between your attorney, the developer, the builder, and the bar owner, but not our problem. We were here first. Thanks. MS. FILSON: Jeri Buehler. She'll be followed by Clay Brooker. MS. BUEHLER: Good evening. I'm Jeri Buehler and I live at 389 Sweetbay Lane, and. I live at roughs of the building. And we sat here a couple years ago in front of the county commissioners. We didn't even know that the property was being sold out. We were told that there were going to be more homes back. there. So much to my dismay, we all came, and the developer not only sold the PUD, the P -U -D — we sat here, we asked that a tavern not go Page 223 item rVa. ._u Page 4r, of i I t February 26 -27, 2008 in. We didn't mind a restaurant that served wine and beer -- that's an issue of its own -- but not a restaurant that close to our homes. The other point was that the building was to be 60 feet from my lot line. The building is 30 feet from my lot line. When DeAngeles Diamond was footing it, I went out and said to the man, oh, that's the wall, correct? No, ma'am, that's the building. I talked to John DeAngeles personally. My husband called him. I called, I went down. Then the wall is 15 feet from my building, from my house. Then I'm watching the wall go up, not just a one story, but a very intrusive two-story building that everyone that drives down my street says, my gosh, Jeri, what happened? Who allowed this? I want a scrivener's error. I am rather flabbergasted that the county commissioners, that we elect, don't drive out and see what's going on in their county, our county. And as a taxpayer, I depend on you, Commissioners, all of you, and I'm very disappointed. And I'm sorry that the man that has come to own this didn't do all of his due diligence to find out what was going on, because we did complain. A Iot of tears, a lot of aggravation. I asked John DeAngeles where he lived, if he would like that building behind his home. I want to sell my house some day. To be honest with you, I will never get out of it what I originally decided. We -- we're on a dead -end. I have a handicapped daughter, Christina, who's 32 years of age. We built there so that she could ride her bike to Publix. CHAIRMAN HENNING: You have to wrap it up, please. MS. BUEHLER: All right. I just want you to do what's right by us. Thank you. CHAIRMAN HENNING: Thank you. MS. FILSON: Your final speaker is Clay Brooker. Page 224 Agenda Item Rio. 12C nc+- -%'bar ^ t )C)OR Page 47 of 116 February 26 -27, 2008 MR BROOKER: Good afternoon, Commissioners. My name is Clay Brooker. I'm with the law firm of Cheffy, Passidomo, Wilson, & Johnson. I appear before you on behalf of the Stevie Tomato's establishment. First off I'd life to comment a little bit on the comment by Mr. Klatzkow that we've -- there's been nothing but deafening silence from us. That is untrue. We had no notice of today's discussion item on the agenda. We found out about it yesterday. Apparently DAD Development Corporation was given notice, but we weren't. Upon finding out about it, I tried to call Mr. Klatzkow. No one knew where he was, so I sent an email to him. The response I got was silence. I've been in touch with Commissioner Henning since the beginning on this. On September 25, 2007, we appeared before you. We offered a sound barrier at that time. On January 10th, a neighborhood meeting was held. Commissioner Henning was in attendance. I was in attendance. Mr. Klatzkow was in attendance. My client was in attendance. We participated and offered sound attenuating shutters at that meeting. We offered to close them every day at seven p.m. That meeting ended with an agreement to follow up with a second neighborhood meeting. I don't know where the status of that is. No one's told me anything about when the date of that meeting is going to occur. But we're ready to participate again whenever that meeting is called. The dumpster is not us. We don't control the timing of it. It's for the entire shopping center, so that can't be blamed on Stevie Tomato's. As far as whether we're permitted under the PUD, your own zoning director investigated this matter the end of last year and she wrote, I quote, Stevie Tomato's is correctly classified under SIC code number 5812 as a restaurant. The outdoor seating bar area is correctly considered an accessory use to the principle use of the restaurant, not Page 225 i ciober 14 9 Page 48 of i ? r, February 26 -27, 2008 unlike the indoor bar. The restaurant use, including the outdoor bar seating area, was properly and appropriately permitted by staff under the restaurant uses as defined under SIC code 5812 by the PUD, end quote. The revenues at Steve Tomato's in terms of food far exceed 51 percent. The sound attenuating shutters we've offered time and time again. Although no one seems to want to take us up on the offer, they are going up anyway next week. We have responded, and what we suggest is to expedite the resolutions that have been offered to you, from our standpoint for months, from DAD's standpoint, they showed some on their -- plans for landscaping and a wall today. I suggest we expedite these resolutions prior to filing a suit which your own attorney gives you, at best, a 50/50 shot of winning. One last sentence. When clients come into my office and ask to go to court and I tell them that there's a 50 150 shot, my advice is, never go to court on a 50150 shot of winning; reach a resolution. And we believe we've offered a reasonable one. CHAIRMAN HENNING: Yeah. My wife and I went out to dinner on Friday night across the street in the Vineyards, and -- Italian restaurant. It has a bar in there. And they're very busy, so we choose to eat over there, and it's nothing like what we've seen on that video. It was quite a pleasant experience. And I know they don't stay open till two o'clock in the morning, one o'clock in the morning. I bet you they close the doors at 10 p.m., maybe 11.1 don't know. There is a difference between a restaurant and a bar, and somebody needs to inform your staff what the difference is. Very clear. And these errors that keep on happening is just overwhelming, whether it be a setback, a bar, or whatever. And the only person that we have accountable is the County Manager. Page 226 Agenda lfem Page 49 of 116 February 26 -27, 2008 But I think we have the ability to do budget amendments, and I'm almost that close to taking a budget amendment to positions in your organization. This has to change. Yes, sir? COMMISSIONER COLETTA: Yeah. A couple of points here. I went online to look up about Stevie Tomato's, and its classified numerous times online as a bar. Just to point it out to you, something that I did. I went to the Yellow Pages, and I couldn't find anything there that indicated whether it was a bar or a restaurant. It was listed under restaurants. But if I may address Mr. Klatzkow. CHAIRMAN HENNING: Please. COMMISSIONER COLETTA: Sir, I'm a little bit disturbed. When you were in my office the other day, I asked you if there'd been any communications taking place and that I heard something about sound shutters, and I asked you what you knew of it, and you said, no, there's been nothing. Have they -- what they just said, is that not true or is it true, that they had contact -- MR. KLATZKOW: They have been talking about sound shutters for, I can't tell you how long, and I've never seen them come up. Now they're saying we're putting them up. I think it's -- maybe a coincidence, but maybe it's because of this meeting right here. What I will tell you is those sound shutters; I don't think it's going to make a heck of a difference. COMMISSIONER COLETTA: Well, that's fine. It's just that when you were in my office, you didn't give me all the information I was hoping to get so I can move forward on it. What I'm hearing from them here is that there is an effort going underway. I wished you told me at that time that you had these discussions. Nothing happened -- MR. KLATZKOW: If you remember, sir, Mr. Mudd came to you sometime ago with a permit on this issue for the shutters, I don't Page 227 Agenda Item No. , 2C ^- -1 Page 50 of February 26 -27, 2008 know, six months ago, nine months ago already, it's been. CHAIRMAN HENNING: November. MR. MUDD: It was November, September. MR. KLATZKOW: November sometime. They're still not there. COMMISSIONER COLETTA: Yeah. A little more detail in the explanation would have helped tremendously. I still support your motion, Commissioner Henning. CHAIRMAN HENNING: Okay. Any further discussion? (No response.) CHAIRMAN HENNING: All in favor of the motion, signify by saying aye. COMMISSIONER COYLE: Aye. CHAIRMAN HENNING: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. CHABUWAN HENNING: Any opposed? COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Motion carries, 4-1, Commissioner Halas against the motion. Okay. Do we need a break? We're going to take a 10- minute break and get back to the five o'clock time certain. (A brief recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your seat. Mr. Chairman, Commissioners, you have a hot mike. CHAIRMAN HENNING: The next item is 10 -- which is it, 10 MS. FILSON: 10F. Item #I OF Page 228 Agenda Item No. 12C Junal- , 00, CHAIRMAN FIALA: That is a 5 -0. Thank you. MS. CHADWELL: Thank you very much. CHAIRMAN FIALA: We're going to take our two o'clock. We're going to take that until three o'clock, then we're going to give our court stenographer a break at three o'clock whether we're finished with that item or not. Item #I 2A THAT THE BOARD OF COUNTY COMMISSIONERS CONSIDERS A PROPOSAL FROM THE DEVELOPER OF PEBBLEBROOKE, TO BE MEMORIALIZED IN A DEVELOPER AGREEMENT, TO BUFFER AND OTHERWISE MITIGATE THE IMPACT OF THE TWO -STORY BUILDING ON THE ADJOINING RESIDENTIAL NEIGHBORHOOD, IN EXCHANGE FOR RESOLVING ANY DISPUTE THE COUNTY MAY PRESENTLY HAVE WITH RESPECT TO BOTH THIS BUILDING AND THE STEVIE TOMATO LAWSUIT - DISCUSSED; MOTION TO CONTINUE ITEM — APPROVED MR. MUDD: Okay, Commissioner. The next item is a time certain. It's 12A, that the Board of County Commissioners consider a proposal for the developer of Pebblebrook to be memorialized in a developer agreement to buffer and otherwise mitigate the impact of the two -story building on the adjoining residential neighborhood in exchange for resolving any dispute the county may presently have with respect to both this building and the Stevie Tomato lawsuit. MR. KLATZKOW: Since the proposal's from the developer, I'm going to ask the developer to make the presentation. CHAIRMAN FIALA: Okay. And then we'll hear from staff after. Very good. Thank you, sir. MR. PICKWORTH: Thank you. Good afternoon, Page 150 Agenda Item t,Jo. 12C Oct r ,n3 June,19' Commissioners. I'm Don Pickworth. I represent DAD Development, which is the developer of the shopping center and the owner of the two -story building which is one part of this issue. I have with me John Deangelis, one of the principals of DAD Development, and also Christian Andrea, our landscape architect so that -- I mean, I know there's obviously the Stevie Tomato's issues that are involved in all of this. That is a separate issue from what we're here to talk about. Stevie Tomato's is our tenant. Unless and until it's judicially determined otherwise, they're not in violation of the lease they have with us, so we -- obviously they have rights as a tenant, so we're not here to deal with that. We are here to -- and I think probably the best way is, we -- some of what we're talking about, what you're looking at right now, you've seen before. This is the proposed improvements in landscaping and wall improvements at the building. As you recall from when we discussed this before, we attended a meeting out at the neighborhood, and certainly one of the concerns was the visual impact of the two -story building. The building was lawfully constructed and permitted in accordance with the PUD. It's there, but it obviously is deemed to be or thought to be impactive by persons in the neighborhood, and so we are proposing to do what we can reasonably do to minimize the visual impact of that building. And you'll see by the drawings what we're proposing, the plantings we're proposing to do, and the wall improvements we're proposing to make. Subsequent to that meeting on February 26th, the county called a meeting that was held -- I think it was March 24th -- out at North Naples Regional Park. A group of the residents appeared at that meeting. We presented the same plans to them and, you know, had a fairly extensive discussion. It's probably fair to say at this point that -- that there is somewhat of an acceptance or an agreement as to the reasonableness of these -- Page 151 Agenda Item No. 12C Junep� ,F�49 '�6 of these proposals. I don't think too many people are objecting. It's really more an issue of, well, what else are you going to do kind of thing, and we'll talk about that in a minute. But I think most recognize at this point that that's probably, you know, the most reasonable thing you can do to really ameliorate the visual impact of the building. Couple things have happened since then. As I say, one is the meeting that we went to out there on March 24th. Following that, at the suggestion of the county attorney, we prepared a developer agreement which pretty much set forth what we would do and what we would expect the county to do to resolve this matter. And I think we and the County Attorney's Office are pretty much in agreement on the terms of that developer's agreement except for one issue, which we'll talk about in a moment. The -- you know, in the time since this matter first came before you several months ago, I think that, you know, certain information, if you will, has pretty well crystallized to the point where I think it's been generally acknowledged that the errors that led to these problems were not the result of any kind of intentional or fraudulent or misleading conduct on the part of the private parties involved in this, be it either DAD Development, which was a purchaser after all of this zoning activity took place and had no knowledge of any of this, or even, for that matter, the original applicant who, I think, has been recognized, was not really aware of what had happened with regard to those recommendations. And -- but notwithstanding the fact that -- all of that, DAD Development is committed to spending about 150,000 -- or actually over $150,000 in making these improvements for the simple reason that we believe that it makes a lot more sense to make some improvements to help ameliorate the situation rather than get involved in litigation, which we think we'd win anyway, but -- and as a result of that, the neighborhood gets nothing. So that doesn't -- has never Page 152 rCefl c !t m Iia. ?C Jun6,' -:2 "$3 6 appeared to us to be a very intelligent way to proceed on this. CHAIRMAN FIALA: You were mentioning some other things that you wanted to present as well? MR. PICKWORTH: Yes, yes. There is a couple of other things though. What we get to is -- because this kind of brings you to the fact that since that last meeting, the county has filed a lawsuit primarily against Stevie Tomato's, but DAD Development has also been joined as a defendant in that lawsuit, and that is a major problem for DAD Development. The notion that we would spend $150,000 to ameliorate a situation aid then still end up in litigation with the county as a defendant is just not something that can be swallowed very easily. And so one of the things we have asked for in the developer's agreement is that the county dismiss us as a defendant in that lawsuit, so that's one of the things that's -- we haven't talked about here before. The other is when we went to the meeting out in North Naples, there are some other issues brought up by neighbors, some of which I think we can maybe address and do something about. One of these was the location of the dumpster. One of the drawings you got there has got the current location. We would propose to move it about 100 feet north. To do that, what we -- we'd need a little help from you in two respects. One is the requirement that this be some kind of concrete enclosure would need to be relaxed so that we could enclose it with a chain link fence with vinyl slats or something like that. It's a cost issue, plain and simple. You know, DAD Development is right out there to the point where, you know, the litigation option is starting to look better. And, you know, the fact that these dumpsters are going to be opposite the preserve and not really, you know, within anyone's sight lines, you know, I think makes that, we believe, a relatively harmless concession. The second would be, in order to make that dumpster location Page 153 Agenda Item No. 1?C Oct b r 'n '8 Junes ,- 6 work with the correct distance you need for the trucks to service it, we'd need to get -- to go into the setback some so that they can be located -- you can see that on the drawing there. Again, given the particular location here, we don't think that's a harmful concession and we do think it would certainly address some of the concerns of the folks in the neighborhood. So, you know, I mean all of us are going to have to give a little on some of these things to make all of this work. A second thing, one of the concerns has been motorcycle parking back there in the area, and you'll see on that second drawing a bunch of striping. We're proposing to basically make that a no parking area, and that's been a little bit of a thorn in the side for some, and it's been mentioned at two or three of the meetings, so we can -- we can do that. One of the things that's been mentioned is back yard flooding during rainy season. On that, it's hard to really get a handle on that. I mean, the -- with the water management system out there, it's designed, it's reviewed by the county, it's constructed, it's inspected to make sure it's -- it's been constructed in accordance with the reviewed and approved plans. As far as we know, it has been. And I guess there, if -- you know, if it's determined by the county that it's not been constructed and there's a responsibility on our part, I mean, we're -- we'll take a look at that. But, you know, right now it's pretty hard to make any commitment on that because we -- we don't think there's anything wrong, at least on the DAD part of this. One of the other issues that's come up, one of the concerns of folks in the neighborhood has been that the south -- the south facing second story windows would prevent -- would allow view lines into residences along there. We had proposed in the developer agreement that we would put an opaque film on these windows until such time as the landscaping grew up. I think Commissioner Henning, representatives of DAD, ._ county attorney, did a site visit out there, and I think the suggestion Page 154 Age9da Item No_ 12C Junq,- _;.� "��,�c, was, instead of the way we wanted to do it, which would be to remove that opaque film after the landscaping grew up, that instead it would be permanently installed up to a height of seven feet. And I think I've got that the way they were talking about it, but Commissioner Henning may correct that, and we're certainly agreeable to doing that. A couple other issues that we probably ought to talk about. Light trespass has been mentioned with regard to the two -story building. We have had shields for the lights fabricated. There's no tenants up there now. But as we get tenants in there, they -- those shields will be installed. There's been comments a couple times in the meeting about the lights in the parking lot. Those lights are, you know, pursuant to county foot candle standards. They're less than the public shopping center and, you know, I think that -- I don't think that's going to -- they're going to change. I guess, you know, to wrap it up, we got a list recently of neighborhood demands. I'm not sure -- you know, it wasn't signed by anyone. I don't know. It wasn't on the letter, it had a homeowners' association. I'm not sure exactly whose demands they are. We've looked at them. Some of the things have been incorporated in what we've said here, some of them are just not feasibly (sic) to be done. A 16 -foot high wall extending the existing eight -foot wall north all the way to the Publix shopping center. That -- you know, that doesn't address the issue that we've set forth and committed to address, and I don't think we can do that. So that pretty much concludes our prepared remarks. Like I say, we're here to answer questions. We -- you know, I think we need to get some direction on the idea of the dismissal from the lawsuit because that, obviously, is an absolute condition for DAD Development on this, so -- CHAIRMAN FIALA: Thank you very much, Mr. -- Don Pickworth. I was going to say Mr. Pickworth, but then I thought -- Page 155 Agenda Item No. 12C C�ctc r M 08 JUriPr',5�. , ��6 well. Commissioner Henning, I know that this is extremely important to you, so at any time if you want to make comments. I was going to call up staff next in case they have anything they want to put on the record, then I was going to call the speakers up. We have seven. But in case you want to say anything beforehand, please let me know. COMMISSIONER HENNING: Well, I'm not sure if county staff is involved in this. CHAIRMAN FIALA: No? COMMISSIONER HENNING: I think that the County Attorney, Jeff Klatzkow, is involved with this, and correct me if I'm wrong. CHAIRMAN FIALA: Okay. Thank you very much. COMMISSIONER HENNING: The -- I had a concern that the landscaping being proposed was not going to be adequate. Jeff and I went out there. We -- with a measuring stick, an actual stick, and went up and viewed the building from different distances. The -- it appears -- and Jeff, you can help me if I'm wrong. It appears that it's going to cover the building. Also requesting to take the landscaping and take it around the corner of the two -story building to the second story or to the one - story. Don, is that your understanding is what the proposed agreement is? MR. PICKWORTH: Yes, that's what we're going to do. COMMISSIONER HENNING: Okay. The other thing about, the flooding. It appears the way the -- there really is no retention pond within that development. It's a conveyance bypipe and it's behind a two -story building, but the outfall of it is -- it's close to the ground. So under heavy rains, no question in my mind there's going to be some effects to the neighboring properties. The -- if you take a look at the -- when it does sheet flow into the preserves, you can definitely see how it affects the land, so something has to be done with that Page 156 Agenda liem No. 12C JUnct, ,.r I n X19 "r1 6 within the agreement. The second thing is locating the -- relocating the park. Don, is that -- is that the parking that's approved on the PUD or the parking illegally presently? MR. PICKWORTH: Well, we're going to have enough parking. We can eliminate those parking spaces around there in that corner. That was the idea there. If it's -- if it's just not a parking area, then it's going to eliminate or -- primarily eliminate putting the motorcycles back there. COMMISSIONER HENNING: Well, that's not designated parking back there. MR. PICKWORTH: No, no. COMMISSIONER HENNING: You have designated parking far to the north. Are you proposing to remove that parking there? MR. DEANGELIS: For the record, John Deangelis, Principal with DAD Development. Commissioner Henning, that's a good question. There currently is not designated parking there. What we want to do -- and if we could put that on the illustrator, we can show you if you're watching TV. If you -- if you notice -- if you notice, in this striped area here, we want to stripe all of that off and create a -- you know, a tow -away zone in this area. The current dumpster location is here. What we would like to do -- there are actually two approved current dumpster locations. This is how the SDP is approved currently, here and here for dumpster locations. What we'd like to do is -- if you've got that. What we'd like to do is, we're able to move this dumpster about 100 feet to the north. We could face it the other direction. And waste management has worked with us a little bit. They have been somewhat difficult, frankly, to work with. But when we have mentioned you all and the county attorney, Page 157 Aaenda item No. 12 Jun(U; ~J049b they have decided that they would pick up later. So they are picking up later from what we're told. They used to pick up very early in the morning, and now they're picking up later in the morning. So we are able to get these two dumpster locations over here, which would move that over about a 100 feet. That's really the only place we could put them on the site plan that we could come up with. We're really trying our best to eliminate this issue of parking. You know, just some additional comments. I mean, I know the residents are very frustrated with this, and we understand. We want you to know that. But, unfortunately, we're -- we are purchasers of a property that we bought that had vested rights, that had a PUD that was approved. We did -- we met and exceeded every requirement the county asked us to do at every turn. We have -- we've done everything we can to help the situation. We -- this is not this current developer's fault. The reason that we're in this position right now is not because of DAD Development, and that's -- we're doing the best we can, because we want to have good relationships with everybody. We want to have a good relationship with the residents, we want to have great relationships with the county, so we're doing the very best we can to the tune of over $150,000. And that's not easy to come by in this market because, you know, we are struggling to keep tenants in our building as well. So we're doing all that we can. This plan, we think, will drastically very much address the issue. And just one final comment. The bottom line here with this two -story building, Commissioners, it originally started off because the sight lines. You know, we have a two -story building that's 29 feet tall. Well, our PUD specifically says two stories not to exceed 50 feet. Well, a single -story building is 35 feet, is the height limit, but we're six feet below a single -story building. So the only complaint - should be, not the height of this, but the sight lines that these folks are Page 158 Hn2"�_I3 item No. 1120 Juna�P , 0833 dealing with from people on the second floor, and we understand that. So the way to address that really, would be an inexpensive way, which would be to put window film on the windows that we discussed, this opaque window film that creates a complete visual barrier that you cannot see through. Okay. So we've eliminated the issue completely that they could have for a two -story building for -- which started off as the issue, because we could have a single -story building six feet taller. So anyway my point is, we're doing everything that we can reasonably in our power to address the concerns of the residents. We've met with them on several occasions, and we'll continue to do SO. But the lawsuit is a big deal for us. We can't -- we can't bend over backwards and fix something that we didn't create and still be sued at the same time. You authorized a lawsuit against our tenant, which is unfortunate, but you did not authorize a lawsuit against DAD Development in your meeting, if you look back at the record. That was never mentioned. In fact, you complimented us at the last meeting. Commissioner Coyle complimented us and said, you know, thanks for stepping up and helping out, and we're happy to do it to maintain great relationships. But we turn around and the compliment turns into a lawsuit. So we can't do both. We have to -- you know, we have to pick and chose how we spend our funds. And so we're going to spend it on enhancing the neighborhood and the center as best we can for the residents. COMMISSIONER HENNING: Madam Chair, may I continue? CHAIRMAN FIALA: Yes. COMMISSIONER HENNING: John, while you're up there, we're still talking about putting the landscaping in as presented and also the wall over to the -- how far to the north? MR. DEANGELIS: A hundred and seventy -five feet. Page 159 Agenda Item No. 12C Oct h r A �� 8 June>,; COMMISSIONER HENNING: Okay. Now, tell us about the -- when I met with you, I talked to you about some further requests from the residents. The 16 -foot wall, why can't you do the 16 -foot wall? MR. DEANGELIS: Well, it's really just a cost issue. I mean, again, we told the county attorney at the residents meeting that, you know, we'd be happy to provide the county access to come in and put up a 16 -foot wall if they so choose, but this eight -foot wall matches the current wall that's there. It's concrete. It is a visual and sound barrier, along with the landscaping. We just can't afford a 16 -foot tall wall. We're doing everything we can to ameliorate the situation, but a 16 -foot tall wall is just -- I mean, why not 30 -foot tall? I mean, I don't know, but we have to be reasonable, and we can't -- we can't just do everything. If the county would like to contribute to this issue, we'd be more than happy to build a taller wall, a longer wall. But look, we've done everything that we were told to do. We -- COMMISSIONER HENNING: Okay. Well, you answered my question. But just to finish on that, then I have another question. I'm going to leave it alone then. I checked with staff, and you would need a variance for a 16 -foot wall. But also there was a concern about the water, potable water mechanism on the other side of the existing fence. Does the -- does (sic) the proposal to match that with landscaping? MR. DEANGELIS: That's correct, yeah. We're going to landscape around that existing backflow preventer system and actually put a gate around it, a visual fence, you know, with slats so that the kids don't -- I think one of the concerns of the residents were the kids were playing on it and jumping up on it, which we can't certainly control, but we can put a little fence around it or something, but we have to provide access for the utility department. That is in the buffer, - by the way. Page 160 Ac,-rtda gall Na 12C Oci-r.�r �� June; �; We do have a buffer agreement which addresses all of the drainage issues, all of the landscape issues that is memorialized in an agreement between the original developer and the master association of common areas for Pebblebrook Lakes. So that really addresses all of these drainage issues. The master association, which we're a member of, is able and responsible for that 30 -foot buffer and can come in and re -grade or do whatever they want. And if the county would come out and say, hey, this is wrong in some way, then we can address it. But it was designed, permitted, approved, inspected exactly as it is right now. CHAIRMAN FIALA: Commissioner Henning, did you have any more questions, or shall we go on break now and then come back and hear the speakers, and then you'll be the first to speak again? COMMISSIONER HENNING: No, I'm complete, Commissioner. CHAIRMAN FIALA: Okay, very good. We're going to take a 10- minute break right now, then we'll come back and we'll call on our speakers. Thank you. (A brief recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your seats. Madam Chairman, Commissioners, you have a hot mike. CHAIRMAN FIALA: Thank you very much. We're back in session, and we'd like to call on our speakers. I understand we have seven speakers. MS. FILSON: We have seven speakers. The first one is Adam Cohen. He'll be followed Walter Brund (sic). CHAIRMAN FIALA: Okay. And our speakers each have three minutes. MR. COHEN: And my name is Adam Cohen. I'm at 298 Spider Lily Lane, and I'm just still very concerned about, you know, the proposals that DAD Development has proposed here today, one of Page 161 Agend'a Item No. 12C JuneOctc jr , which is not unreasonable to have a 16 -foot wall given that this is about, I would say, about 15 feet from somebody's back yard, a man named Peter Lutz. This is looking from his back yard into Stevie Tomato's. And this happens almost on a daily basis, people hopping that chain link fence, and I understand they were going to continue that eight -foot wail. But I submit to you that anybody that -- of reasonable athletic ability could get over an eight -foot wall very, very easily in the same manner, and we're just looking for a little bit of safety. And you know, it was also proposed to have window film placed on those rear - facing windows, and I just don't feel that it's -- any way that DAD Development can guarantee that -- very easy to pick window film off. You know, the community presented a -- just, you know, opaque. If they want the lighting inside, can't they just block it off like you would in a bathroom. That's basically all I have. I just really feel that, you know, the privacy issue is really important. And it's very easy -- I mean, anybody knows, you just peel it right off, and that's no way to guarantee that somebody's not going to peel that off and deprive people of their home and privacy. Same thing with the wall. We just want to ensure that once this is done, that we'd have the right type of privacy, that we don't have to deal with this on a daily and a weekly basis. Thanks. CHAIRMAN FIALA: Thank you, sir. Did you want to say something? COMMISSIONER COLETTA: Yes. I wanted to address one situation. I'm sorry. I can address it with Don or someone. The opaque business of the window, does it have to be a film or could they take and sandblast it from the outside like they do with some of these upscale type of windows in restaurant. - MR. DEANGELIS: Well, again, I guess -- again, John Page 162 Fri, ;:gym P -Ja. _ Juna;_ ;2083' Deangelis. I guess anything is possible, Commissioner, but we're trying to -- we're trying to do whatever we can within reason here for everybody's -- COMMISSIONER COLETTA: I understand. MR. DEANGELIS: We believe this film -- it's just like window tinting. It is not easy to get off. I mean, you'd have to use a razor blade to get it off, and if that happens, I can assure you that the residents are going to see that the window film is gone and are going to make note of it. I mean, then it becomes an enforcement issue. But, you know, we think the window film is a very reasonable solution here. COMMISSIONER COLETTA: Now, the windows, are they fixed where you can't open them? MR. DEANGELIS: You can't open them. COMMISSIONER COLETTA: Well, then why don't they put the film on the outside of the windows? MR. DEANGELIS: You can. It's just not -- it's -- I don't even know if they make outdoor film. Maybe they do. COMMISSIONER COLETTA: I don't know, just -- MR. DEANGELIS: I mean, we could put it on the outside if they make out -- you know, film that is designed to go on the outside of windows. I just have never seen it. CHAIRMAN FIALA: Not only that, but being that you are going to rent these things to them -- MR. DEANGELIS: Right. CHAIRMAN FIALA: -- then in your rental agreement -- MR. DEANGELIS: Of course. CHAIRMAN FIALA: -- there could be a stipulation -- MR. DEANGELIS: The blinds as well. CHAIRMAN FIALA: -- that that film stays on the windows -- MR. DEANGELIS: Absolutely. CHAIRMAN FIALA: -- and that they cannot remove it. Page 163 Agenda Item No. 1 Jun° _;�8a MR. DEANGELIS: That's absolutely correct, yes, ma'am. CHAIRMAN FIALA: Okay. Thank you. Next speaker. Oh, Commissioner Halas? I'm sorry. COMMISSIONER HALAS: Just a question. Has the residents worked with you in regards to some cost share of some of the items that you're trying to address here? MR. DEANGELIS: Oh, no, sir. That's never been a topic of discussions. COMMISSIONER HALAS: Okay. I was just wondering, especially when they're talking about a 16 -foot wall -- MR. DEANGELIS: Right. COMMISSIONER HALAS: -- and all the additional engineering that's going to go into that wall -- MR. DEANGELIS: You're right. COMMISSIONER HALAS: -- so that it doesn't blow down. MR. DEANGELIS: That's right. COMMISSIONER HALAS: So I kind of -- I have concerns that, you know, eight -foot wall, I don't think somebody's going to scale it, but I've got some concerns that putting the additional burden on you -- MR. DEANGELIS: Yes, sir. COMMISSIONER HALAS: -- since you bought the property and you weren't involved in the original PUD -- MR. DEANGELIS: That's correct. COMMISSIONER HALAS: -- and then somebody's coming up to you and telling you -- asking you to put an eight -- a 16 -foot wall in place. MR. DEANGELIS: Correct. COMMISSIONER HALAS: I have some concerns that, you know, if you want to cost share, fine. MR. DEANGELIS: That's right. I appreciate that. MS. FILSON: The next speaker is Walter Bruno. He'll be followed by P.J. Obrecht. Page 164 enrj I,em fvo. 12 Jun6l MR. BRUNO: Yes, Walter Bruno, 288 Spider Lily Lane. And I'd like to just go back in, I believe it was December of 1997. Commissioner Henning spoke with the neighborhood and said that no serious negotiation would take place until the scrivener's errors in place. And at this time, you know, we have a proposal up here that, to me, just doesn't seem to address a lot of -- the neighbors will be here to address their specific needs. And the other fact I want to bring forward, you know, the county benefit and revenue from a two -story building that wasn't supposed to be there, the developer will benefit, and the residents will be left with basically -- and you'll hear again -- going to be unmarketable properties. And we're just curious, has the tax appraiser even taken this into account? Thank you. MS. FILSON: P.J. Obrecht. He'll be followed by Clay Brooker. MR. OBRECHT: For the record, P.J. Obrecht. I live at 293 Spider Lily Lane, and I've been here before. I'm going to play a short DVD. I guess it's already in. My comments prior to playing that -- first -- I'll let it go ahead and play it, then I'll make my comments. (The DVD is now playing.) MR. OBRECHT: This is just to remind everyone of who the real victims are here and what we've been dealing with, and anybody watching at home that hasn't seen what we've been dealing with the past two years since DAD Development allowed this renter, which we call -- we -- I think is a bar, not a restaurant, at least a good majority of the time, to be put into their development 150 feet away from our residence. And the reason for a 16 -foot sound - abating wall is to deal with the dumpster noise, motorcycles, the bar, hopefully that won't be there anymore, however, and any other things that might be going on on this Page 165 Agenda Item No. 12C Uct J r Jun 21 J 9�' ,6�. property, which we were told from the very beginning, we wouldn't see it, we wouldn't hear it, we wouldn't even know it was there. That's what we were promised back in 2002. That was what was agreed to by the Planning Commission and you, the Collier County Commission. We've been dealing with this for the last two years. Have not been able to enjoy our lanais, our swimming pools, or our back yards. Pressure washing, washing out the bar, the outside bar area. Here's the shutters they put in. This is 10 o'clock at night. Somebody decided they wanted to open them up. It's quiet now. It's not football season. There's no real sports going on. Of course it's quiet. That's what they're going to claim. Well, it's real quiet, the shutters are doing a great job. Well, they're not going to do a good job come next November when the football season starts up. And they have a leaf blower cleaning off the property. Thank you DAD. That's what the bar looks like when they have the shutters open. Again, it's not a high sports season. Here's the -- that's what it sounds like with the dumpster being emptied at the other end of the building, and that's why we want the wall to continue all the way down to the other side of the building and the dumpsters area to be enclosed with at least a 10 -foot wall where the dumpsters actually get dumped from as well. And so we're the real victims here. Deangelis Diamond would like to maybe sound like they're the victims. I do agree with him on one point, the county needs to step up and they need to split the bill for part of this. It's not the residents' responsibility. We were there first. You guys messed up, you need to flip part of the bill with DAD. We don't care who takes care of it, but somebody needs to -- the residents certainly are not going to. COMMISSIONER HALAS: Okay. Excuse me. I wasn't here at this time when this was approved, okay, so I didn't -- I wasn't part of Page 166 JUrie�'�1 r,�? Q B the mess up. Okay? MR. DEANGELIS: Okay. COMMISSIONER HALAS: I just want to get that clear. MS. FILSON: The next speaker is Clay Brooker. He'll be followed by Angela Joseph. MR. BROOKER: Good afternoon, Commissioners. My name is Clay Brooker. I'm with the law firm of Cheffy Passidomo, here on behalf of the Stevie Tomato's Restaurant. I'd like to take a minute to review how we got here. Back in 2002 the Richland PUD was amended by the county. Apparently there's some confusion about how tall buildings can be and what uses are permitted in that PUD. Stevie Tomato's had no involvement whatsoever back in 2002 regarding the rezoning process. They weren't even around. Approximately two years later, Stevie Tomato's does come around and inquires what DAD has as the leasing space in the center. Ultimately a lease is signed. Over the next year or so, Stevie Tomato's prepared plans for the restaurant and the outdoor patio area, submitted those plans to the county. The county reviewed them for consistency with the codes, including zoning, and issued the permits. In reliance upon those permits Stevie Tomato's has expended over $1 million in buildout cost and business opening cost. Time passes by, the restaurant is now open, and code enforcement responds to some complaints from some of the residents in the Pebblebrook Lakes community. Code enforcement suggests that Steve Tomato's obtain a professional report on the level of sound emanating from the outdoor patio area. Stevie Tomato's agrees to do so, and the professional study concludes that the sound emanating from the outdoor patio area does not violate the noise control ordinance. Nevertheless, the study suggests that a sound barrier would mitigate any impact on Page 167 Agenda item No. 12C OctIr ' G1'i,�$ Junes ,5 ; surrounding properties. This issue first appeared before you, the BCC, back in September of '07. Stevie Tomato's attended that meeting, presented a sound study, and notwithstanding the sound study's undisputed findings, Stevie Tomato's offered, in the spirit of cooperation, to install that sound barrier consisting of a wall and shutters around the patio area. In fact, Stevie Tomato's had already applied for and obtained the permit from the county to install the wall and shutters at that time; however, the county did not accept their offer. They remained silent. The next month, October, 2007, BCC directed an outside attorney to investigate the area. That's Mr. Farese's report. His report concludes that Stevie Tomato's was properly permitted. Meanwhile, the county's planning director conducted her own analysis and investigation, determined that Stevie Tomato's use in the outside patio are, in fact, permitted by the applicable zoning regulations. w Then the county attorney headed a neighborhood meeting in January of 2008. Stevie Tomato's, again, attended. And, again, we offered to install sound barrier consisting of the wall and shutters. Again, the county did not accept the offer. The following month, February of 2008, the matter appeared on the BCC without any notice given to Stevie Tomato's. The BCC at that point in time decided to file a lawsuit. Although it felt it had been treated unfairly, Stevie Tomato's moved forward voluntarily, without any similar mitigation action taken by the county or DAD, to erect the wall and shutter sound barrier. We understand that those shutters have since been opened by patrons. Commissioner Henning informed me of that. I informed the client. Locks have been installed, and I hope that those shutters aren't opened any longer because they are closed at eight p.m. nightly. It's an ongoing process. So if I hear about people opening, let me know, and we'll try to do our best to take care of that. Locks have been installed. Page 168 Agenaa Item No. 12- jU11P�7Q1, "3 As we sit here today, Stevie Tomato's has complied with all county and state regulations yet is the only party which has taken real physical action to mitigate the issue. CHAIRMAN FIALA: Thank you. Thank you so much. I wanted to ask you one question. Why would they ever install shutters that are movable if they're supposed to eliminate sound? This allows them to be open. First of all, they should be nailed shut. They shouldn't just be locked. They should be nailed shut. And second of all, they should have some kind of sound attenuation added to them to absorb the sound, so -- MR. BROOKER: The shutters are designed and -- were designed and manufactured to be sound attenuating. CHAIRMAN FIALA: If they're closed. MR. BROOKER: With regard -- well, with regard to them being open and closed, they expended a lot of money to create the outdoor patio area, which -- look, we came, we submitted the permits. This wasn't -- we weren't trying anything underhanded. The county said this is an accessory -- typical accessory use. CHAIRMAN FIALA: Well, these were just my comments. I shouldn't say any more because -- MR. BROOKER: Well, that's why they're open. I was trying to answer your question. COMMISSIONER HALAS: Thank you. Let's get -- be realistic about this. Stevie Tomato's is part of the community, and whether they're in compliance with the existing sound ordinance or not, I think that they have an obligation to try to work with the neighborhood to make it as quiet as possible, to take care of it so that at 11:57 in the evening, residents don't have to put up with this noise. And I'm not sure what Stevie Tomato's has to do to abide by this. Because even though you might take sound measurements, it's still, let's face it, at night sound carries -- is more prevalent at carrying at night. Page 169 Agenda Item No. 12C Juft�i ,7L $6 So instead of where we are today, I would have thought that Stevie Tomato's, instead of thumbing their nose at the residents, would have tried to work with them, because obviously those residents probably want to go over there and enjoy whatever, some food or favorite libation, and all they're doing is causing a lot of problems. I would hope that they would realize that they are part of the community, that people have got to co -exist together, okay? MR. BROOKER: If I may respond to that. When the issues -- when the complaints were first made, Stevie Tomato's actually hosted several of the meetings at its establishment, inviting the neighborhood. That's when the code enforcement actually attended to discuss these issues. And we have been trying to -- you have to remember, we also are a business, and that once you spend that money, yes, we are now trying to resolve, in what we feel is a fair way, resolve the issue by _. re- closing an area that we spent to open up in reliance on the county regs. And so we're doing what we feel is a compromised position. Yes, we are part of the community, and these residents, some of them will admit that they actually are patrons. Maybe not late at night, I grant it that. But they do frequent the establishment. And so we are trying to do what we feel is our fair share. I think DAD has made a good proposal and that when you combine all these things, you're going to have multiple layers of sight and sound mitigation barriers. CHAIRMAN FIALA: Yep. You've had -- you were a three - minute speaker, and so I hate to cut you off, but -- MR. BROOKER: I was just answering questions. CHAIRMAN FIALA: I know we asked you questions and we've kept you up there, but we have to get on -- MS. FILSON: The next speaker is Angela Joseph. She'll be �- followed by Jeri Buehler. Page 170 Al,-77te, -r8 11em No.. 120- MS. JOSEPH: Good afternoon. For the record, Angela Joseph, 281 Spider Lily Lane. I wish very much I had brought the pictures I have shown you in the past of the view from my back lanai. As I have stated before, I commend the efforts on the landscaping renditions that they have proposed, but I ask you to consider something, if you will. If you wouldn't mind the overhead scanning over here. CHAIRMAN FIALA: Take that -- take that microphone with you, would you? MS. JOSEPH: Yes, ma'am, thank you. This is my home right here. And if you will, consider these renditions. What would you say the view was from here, half a mile, three - quarters of a mile? As you stand on my back patio on the outside of my lanai, you have to hug the railing to see the top of this building. The windows look directly into my home. The film that was proposed at our community meeting -- and DAD's attorney came to me specifically and said he'd like to show me a sample. I've never seen a sample. I'd like you also to consider that films of those types reverse at night. What happens at night? My living room lights are on, their lights are off, and that's a beautiful view. And yes, nobody should be in there at night. I've worked overtime plenty. I worked at night, too. You cannot tell a tenant they can't be in their offices at night. I don't feel anything proposed in that gives me security from those windows that look directly into my living room. Nobody has that but me. These aren't going to grow up for two years. When the building began, I was speaking to a Realtor about selling my home. Oh, that's going to cut your value drastically. The only one here who's been in my back patio is Mr. Henning. There's nobody, regardless of values of properties, if they go to a Page 171 Agenda Item No. 12C June, ' np million dollars a home, if there's one other house for sale in my neighborhood, will buy mine. I'm looking to relocate. I can't sell my home. It's not even worth putting out there because I couldn't cover the mortgage. But yet I refinanced. But when I did, I still had $200,000 of equity in my home. I can't do that. Somebody have suggestions? I don't? Another item. The water pipes that are at the end of Sweetbay Lane. Where are they on our side? Can somebody please realistically answer that for me? And I see kids climbing. And when they work on them, they're in my back yard. And the landscapers when they work, are reaching over my fence, petting my dogs, and having lunch in my back yard. Please, somebody tell me how my life is going to change. How can I have peace, security, financial security that I worked my butt off to get. I didn't get that house through a divorce. I'm a single woman who had nothing when she left her husband. I worked my butt off for that, and I now I can't give it away. What are my answers? Nobody has come to me. I've spoken to Mr. Henning alone. He has seen it. But until you stand in my back yard -- please, Mr. Deangelis, I invite you. Come have coffee with me in the morning and see what it is, see what I'm looking at, because this is what you see two blocks down the road away from my house. CHAIRMAN FIALA: Thank you very much for giving us your comments. MS. JOSEPH: Thank you for your time. MS. FILSON: The next speaker is Jeri Buehler. She'll be followed by Kim Kisa (sic). MS. BUEHLER: Good afternoon. I'm Jeri Buehler and I live at 389 Sweetbay Lane. And as you all can see, we are very passionate about this issue because this is our home. And I'm going to backtrack. Mr. Halls (sic), is that how you pronounce your name? CHAIRMAN FIALA: Halas? Page 172 Agee iC8 item No. 12C JUI1 I __ x^0096 �7Ij MR. BUEHLER: Halas? Originally back in 2002 many of us sat before the planning committee here in this very room, and we discussed what it was that we expected you as commissioners to do. It's my understanding that you're to make sure that our -- that we're secure and that the right things are done. We asked -- we didn't -- not even realize that this piece of property, number one, could be sold, and when it was sold, it was done so, in my opinion, very underhanded. The building was to be 60 feet from our lot line, the wall 30 feet from the lot line, a one -story building, no bar and tavern, which it is a bar. Is there anyone I can give this to? MR. MUDD: Sure, right here. MR. BUEHLER: There was to be proper landscaping done immediately. There was a fence going from our subdivision to the property. It was supposed to be set back from the gate for the residents to have access into Pebblebrook, which was not done as they said it was going to be done. John, I did call you. John Buehler did call you. When those footings went in originally, we -- I want you to know we all sat in the meeting. Mr. Henning was there. We had a state trooper in our clubhouse because there was so much anger and passion going on with what was going on in this subdivision unlike any other subdivision I've ever seen. Mr. Henning was there. He was supposed to support us. We received no support from you, Mr. Henning. None. John, I did call you. I came to your office. John Buehler called you. I asked your superintendent to stop. I said, what are you doing? I said, oh, is that where the building's going? No, this is a lot line. I said, what do you mean the lot line? I'm sorry. I fail to understand the whole thing. I'm really confused. I do have a piece of paper here from my Realtor stating their professional opinion that the office /retail complex immediately Page 173 Agenda Item No. 12C '?f JUNI ,200% adjacent to my property on the north -- northern boundary has -- is a negative impact marketable for a price recommendation for a purpose to attract a buyer. I, too, want to sell my house. It is so negative. When I have people come down to my house, friends or anyone, they go, oh, my gosh, Jeri, what is that building right in your back yard? CHAIRMAN FIALA: Thank you. MS. BUEHLER: I'd like to give this to you. CHAIRMAN FIALA: Sure. Next speaker, please? MS. FILSON: The next speaker is Kim Kish. MS. KISH: I feel like a teacher. I've got handouts, all kinds of cute things. Here's some photographs for you. This is also a list of proposals -- it's not demands -- of what we presented and what we want. We felt that they were very, very fair. These are some pictures that we want to show you of the ideas. _n. This is the wall that would move from the current six feet or eight feet up to 16. That's what it would look like. It would give us some more security. Just another angle. This is from the corner of my home, and it would totally cover that bar, give me great, you know, sound barrier. This is another angle. This is from Ms. Jeri's home looking that way, and that would also run behind Ms. Ingle's house, the one that is really affected. This is looking down the street as you come down Sweetbay, looking directly. That would give us -- pretty much cover the lighting. Again, the second -story windows are still viable to look at -- you know, into the community. And this is just photographs that we brought to show you a 16 -foot wall, that it is viable. It is something that really, really needs to be considered in our situation. I think just a couple more. You can just do those real quick. MR. MUDD: Last one, ma'am. Page 174 Agenda !`.am No. 12 C Or� g Ju f" n e WAS MS. KISH: And we're pushing for the Pelican, too. I just want to say in conclusion, first of all, the film is unacceptable if you read through there, okay? This is a security issue, okay. On a second story we are asking for glass block windows. This is very doable. The fact that you are going to allow a tenant to have the ability to tear this off, remove it, et cetera, is unacceptable. This entire project, this entire effort has been so boggled and it's such a mess that we are really not going to accept anything that allows anybody the ability to change anything. Now, we have -- you have pedophiles' files, we have whatever, the ability to look into our homes. That's not acceptable. The wall issue, we've had a breach of our community three times already with two lockdowns from sheriffs corning through. We could not leave our homes until the perpetrator was caught. As far as the bar, there's absolutely no way you could possibly separate Deangelis Dia -- or DAD and Stevie Tomato's. They knew exactly who was coming into that space in 2002 when they presented the thing -- the whole community selling off. They made the comment right then and there in 2002. I implore you to stick up for the residents. There's 230 of us that you have impacted, and we really -- we voted for you, we pay your salaries. I really would appreciate it that you stand in our corner. Thank you. MS. FILSON: That's your final speaker, Madam Chairnlan. CHAIRMAN FIALA: Thank you. I have a few comments, if nobody else minds. Okay. One of the things I think would be good to be planting along any wall is nice, thick Bougainvilleas. It really does deter anybody wanting to climb on any walls. I wanted to know also, you were mentioning about the taxpayers paying for the 16 -foot wall or helping. I would think that you would want Stevie Tomato's, who created the need for the wall in the first place, to pay for the wall, not the taxpayers, and possibly not you, but Page 175 Agenda Item No. 12C Jun°�J ;7, I i 16 Stevie Tomato's. How long is their lease? MR. DEANGELIS: Ten years. CHAIRMAN FIALA: Ten years. And how long have they been in there, two? MR. DEANGELIS: I believe so. I'm not exactly sure the exact time. I believe it's been a couple years. CHAIRMAN FIALA: They can pay it off in eight years, yeah. I think that they should do that. And then I've already asked the question about -- about the noise wall and why they put shutters in there. And you asked about the noise factor with the dumpster area. You said chain link rather than cement. Well, noise carries anyway, as we heard. Now, I think our people -- and we've got a guy back here that can possibly get that dumpster to be picked up at, say, nine o'clock or even two in the afternoon. So we can change that around a little bit, but I do think that we -- and we can work with you, and he will. MR. DEANGELIS: Yeah, I believe that's gotten a lot better actually, the timing of the pickups. But can I just comment on that film? Because one of the residents made a comment about the window film and how it's -- you can see in at night but not during the day. That's a reflective. If it was reflective film, it would be reversed day and night, but this is actually an opaque film. It's the same during the day and the night. So that was just maybe a misunderstanding. MS. JOSEPH: It was never presented to me, sir. CHAIRMAN FIALA: Okay, fine. MR. DEANGELIS: And I can give you a sample. I'm sorry that you didn't get a sample of that. I'll leave this with you so you can see how that completely blocks out -- COMMISSIONER COLETTA: Could you pass that around? Page 176 Agenda stern No, Juno J;,� MR. DEANGELIS: Sure, yeah. CHAIRMAN FIALA: Okay. Now, Commissioner Henning, would you like to take over from here? COMMISSIONER HENNING: Well, yeah, I'd like to hear from Commissioner Coyle, but I would like to say, I think there's a confusion -- I think I recognize the confusion. What they have there is a sports bar. CHAIRMAN FIALA: Yes. COMMISSIONER HENNING: And what you heard was a restaurant and outside seating. And the attorney representing that sports bar said, well, you don't -- if the shutters are open, just give me a call and I'll call my client. And can you -- he's a young man and I'm sure he's going to be around for 50 years, but what are we going to do afterwards when Mr. Brooker is not in the community? You know, it's just simply not responsible. But I understand -- if there's one person's confusion, I could understand staff s confusion of the difference between a bar and a restaurant. But I'd like to hear from Commissioner Coyle. CHAIRMAN FIALA: Okay. Commissioner Coyle, do you have any comments? COMMISSIONER COYLE: Well, yes, I do. I think Conu-nissioner Henning has hit the nail on the head. I don't think that's the right place for Stevie Tomato's. I don't think it should be there. I don't think there is anything you can do that is going to make it acceptable except to close that outside area. I just do not believe that a sports bar is -- should be operated in such close proximity to a residential neighborhood. I think there's substantial compatibility issues there. And I think that Stevie Tomato's should be looking for a different place to do their business, quite frankly. The other problems are a bit more complex, but I believe that there is going to have to be some compromise on both sides of the Page 177 Agenda Item No. 12C JUri90,7t 9a issue about the second floor windows and that sort of thing. The issue is in my opinion, that there should not be a view or a line of sight from those windows into people's back yards and/or windows of their homes. Now, if that can be solved -- and I would like to see it solved by a combination of factors such as vegetative buffering and a wall and the film on the windows if it's necessary. But once that's solved, I don't -- I am not necessarily sympathetic to what seems to be the opinion of some residents that you just need to tear it down. So I think there has to be some compromise with respect to how that is resolved. COMMISSIONER HENNING: Commissioner Fiala? CHAIRMAN FIALA: Yes. COMMISSIONER HENNING: You know, I'd like to see the 16 -foot wall -- I don't know if it's doable. My concern with that is you still need to go through the variance process, so it's going to delay any relief that you have for the residents. You can't put the landscaping in before you put the wall in. You've got to put the landscaping in after you put the wall in. And then you know how long it takes to get things to us. You don't know if it's going to die. I think we need something real now. Jeff Klatzkow and I went out there -- and Jeff, help me if I'm wrong. In my view the landscaping will take care of the problem. There was a concern about, well, what happens if landscaping is damaged? Mr. Deangelis is providing a filming that you can't see through. So, you know, the windows are there because our staff -- or not our staff -- our code demands that. That's an architectural requirement. So I can't say if the walls (sic) would be there if it wasn't for our code, code requirement. So, you know, we need to move on. We need to provide whatever we can do, the best thing that we can get for the residents. And I've heard so much reluctancy about putting the wall up there, Page 178 Agenda Item No. I2,C Jun 2W , 16 -foot wall, that I want to approve this agreement with some slight modifications. CHAIRMAN FIALA: Would you like to make a motion, Commissioner? COMMISSIONER HENNING: Well, let's approve the motion with -- and I'll need some help -- approve the agreement and the caveat that the -- DAD will opaque the windows, move the dumpster, strike the rear, and install no parking tow away zone signs. Now, we need to address -- and maybe we just need to get our staff to address the issue with the drainage out there. I think that's probably the best way to do it, which is in the agreement. Jeff, did I miss something? MR. KLATZKOW: I think that's it, sir. I'm taking a look at Mr. Pickworth; is that acceptable, sir? COMMISSIONER COYLE: Commissioner Henning, is a 16 -foot wall included in your motion? COMMISSIONER HENNING: Well, no, it isn't. I didn't hear that DAD is going to accept the agreement. COMMISSIONER COYLE: Yeah. COMMISSIONER HENNING: And also the fact is, it's going to take a while before you can get the approval for it. COMMISSIONER COYLE: Well, not only that, but the engineering for a 16 -foot wall is going to be very significant, and in an area that is prone to hurricanes, I think it's going to be dangerous. You would have to take up more room, it seems to me, to build a support structure for that wall that would make it safe, and I'm afraid that once that is done, it is not going to be acceptable to anybody. I believe you're right, it would be better to do it in a combination of an eight- or a 10 -foot wall, perhaps, and then vegetation and the film on the windows. And I think -- I think that's essentially what your motion says, isn't it? COMMISSIONER HENNING: That's right. But also I need to Page 179 Agenda item No. 12C Oct June, ; cover the dumpster. COMMISSIONER COYLE: Yes. COMMISSIONER HENNING: The relocation of the dumpster is going to provide setback problems, so we need to deal with that, and we don't want this to have to come back for a deviation. We need some guidance from the county manager. MR. DEANGELIS: If I may, that is exactly what we're proposing in the agreement is what he outlined, the eight -foot wall, the landscaping, the window film. CHAIRMAN FIALA: Can you hear Mr. Deangelis? COMMISSIONER COYLE: I can, yes. COMMISSIONER HENNING: Yes. CHAIRMAN FIALA: Okay. MR. DEANGELIS: So we're prepared to move forward with the agreement as it is outlined. In addition to that though, one of the concerns of the residents, which we've tried very hard to address, is the location of the dumpster. As Commissioner Henning said, it does bring up a setback issue, which it's a preserve setback issue. It's not a residential setback or anything like that, so it shouldn't be problematic, but I just don't know what the process is of a variance and all of that sort of thing. COMMISSIONER HENNING: I can tell you the problem. The problem is that an accessory structure needs to be 10 -foot away from the preserves. That's where the problem is. That's why I'm asking the county manager, if the board enters into this agreement, are we going to have to have a deviation from the setback? Is there a county manager there? CHAIRMAN FIALA: Yes. He's thinking about it. He's coming forward to the microphone, and everybody's talking to him. MR. MUDD: Yes, sir, there probably would be a variance that would have to come forward on this particular issue. You could -- you could, based on your agreement, say that you wanted the Page 180 A,y e n as !:em "Jo. Jury �Li2l0i Bn particular issues done, and staff will move forward with the variance process back to this board as fast as it can through the CCPC and back to the Board of County Commissioners. COMMISSIONER HENNING: Well, can we do a variance to our variance, a variance to our code? I mean, this is ridiculous. It's going to take a year to get to the Board of Commissioners with a variance, besides the cost. Who's going to pay for the cost of the variance? CHAIRMAN FIALA: Well, can we vote on something like that right this very minute, to have him move that dumpster over to the other side with the variance right now? County Attorney? MR. KLATZKOW: It's an unusual request, but I understand it. I think we can put it in the developer agreement and work it out. I think we'll work it out. MR. SCHMITT: That's what I would do, absolutely. Put it in the developer's agreement as part of the proposal. MR. KLATZKOW: It's not impacting on an adjoining residence. It's just a preserve. CHAIRMAN FIALA: Okay. You can do that. MR. PICKWORTH: I guess from our standpoint, we'll do what we said we'll do, but we will need whatever kind of permission, whether you call it, variance, administrative, whatever. I mean, we need that to make it work. If that happens, then the dumpster move will happen. CHAIRMAN FIALA: We've just taken care of that. MR. PICKWORTH: Okay. CHAIRMAN FIALA: Okay. Is there anything else, Commissioner Henning? COMMISSIONER HENNING: Well, yeah. DAD, I understand, is not going to sign this agreement unless we remove them from the lawsuit of Stevie Tomato's. Is that going to be a problem, Mr. Page 181 Agenda Item No. 12C Jun°�;9j Klatzkow? MR. KLATZKOW: I don't know. It could be. If a court were to deem DAD to be an indispensable party, then the Stevie Tomato's lawsuit would be subject to being dismissed. I don't know if a court could do that or not. COMMISSIONER HENNING: Well, we can just go through the court process and drag DAD along with this, and hopefully we'll get some sort of settlement later on. Either we get a settlement now or we get a settlement -- maybe a settlement later on. MR. KLATZKOW: I don't think we'll get a settlement later on. I think DAD's position is that the monies they're transpending here is in lieu of their litigation fees. This may be the best deal we get. CHAIRMAN FIALA: Commissions Coletta? COMMISSIONER COLETTA: Yeah, thank you. Okay. Right from the get -go, what's your recommendation is -- that we do to be able to move this thing forward? And, too, we've got to be realistic about what our endeavors are, what we're going to do as far as any kind of lawsuits go. I think -- what do you think? MR. KLATZKOW: I don't think I will ever get a better deal with respect to the two -story building than you're getting today. COMMISSIONER COLETTA: Okay. MR. KLATZKOW: Stevie Tomato's, that litigation may be impacted. I don't know. But I will never get a better deal for you on that two -story building. It's not coming down. COMMISSIONER COLETTA: So what you're recommending basically is to drop the lawsuit? MR. KLATZKOW: We don't have -- drop the lawsuit as to DAD. The Stevie Tomato's lawsuit would continue. We don't have a lawsuit with respect to the two -story building yet. CHAIRMAN FIALA: So in other words, so that we understand what you just said, there's a -- there are two lawsuits? MR. KLATZKOW: There's one lawsuit. Page 182 Ac;e,,lw2 !tem No. 12C Junk x;,20 8 yv CHAIRMAN FIALA: One lawsuit but two parties? MR. KLATZKOW: Yeah, because the lawsuit's against Stevie Tomato's and then DAD, who's the owner of the property. Stevie Tomato's is running the property. DAD is leasing it to them. So we joined them together. I would remove DAD from the lawsuit against Stevie Tomato's, continuing the fight against Stevie Tomato's. The risk you're running is the Court saying you can't do that. I'm going to dismiss the entire case. COMMISSIONER COLETTA: Okay. I'm sorry. The background noise is getting a little confusing. But let me see if I understand. What reason do we have to even continue the lawsuit if we can get what we need to be able to make this thing work? MR. KLATZKOW: This is not resolving your Stevie Tomato's issue. This is resolving your two -story building issue. COMMISSIONER HENNING: Well, if I may help, please? CHAIRMAN FIALA: Yes. COMMISSIONER HENNING: You know, approve the agreement as amended, and we'll see if DAD signs it. At least the board is trying to resolve it. CHAIRMAN FIALA: But wonder -- would the Court then release Stevie Tomato's from this lawsuit because we do this? MR. KLATZKOW: I don't know. CHAIRMAN FIALA: Are you still willing to do that, Commissioner Henning? COMMISSIONER HENNING: No. I asked -- we got into discussion about removing DAD from the pending lawsuit against Stevie Tomato's sports bar, and that's not a part of the motion. So what we have is an agreement that DAD probably won't sign and we need to somehow release DAD of that court case. COMMISSIONER COLETTA: I'm sorry. There's just a little too much happening here for me to be able to get my arms around. Why is it that we're still going to be in a lawsuit with Stevie Tomato's? Page 183 Agenda item No. 12C 3uncXE !6 MR. KLATZKOW: There are two issues with Pebblebrook. The first issue was the two -story building. That's the issue which Mr. Pickworth is here on, and he's trying to ameliorate the impact on the community through the landscaping and the wall and everything else. There's a second issue with respect to Pebblebrook that's apart from the two -story building, and that's Stevie Tomato's. The staff has taken the position that Stevie Tomato's is a restaurant with an accessory use with the outdoor seating area. The county attorney's taking the position that it's really two uses. During the day it's a restaurant. At night it's a bar. And we're trying to shut down the bar operation. We brought suit against Stevie Tomato's to shut down the bar operations only. In that suit, we sued both Stevie Tomato's, who runs, obviously, the restaurant/bar as well as DAD, who's the owner and lessor of it. And the reason we added DAD was because of my concern that it could be that a court would hold DAD to be an indispensable parry, that they had to be in the litigation. COMMISSIONER COLETTA: Okay. Let me phrase the question slightly different, if I may, ma'am. CHAIRMAN FIALA: Sure. COMMISSIONER COLETTA: I understand what you're trying to say. It's because of the fine line between a bar and a restaurant. We're trying to determine what that is. The way our codes and laws are written, do you feel reasonably well that if we stay in this particular suit we're going to prevail? MR. KLATZKOW: No. At the time when I came before you, I said it's a coin flip. COMMISSIONER COLETTA: Say it -- coin flip? MR. KLATZKOW: It's a coin flip. COMMISSIONER COLETTA: You still feel that way? MR. KLATZKOW: Yes, I do. COMMISSIONER COLETTA: So we're about ready to expend Page 184 tj�',a voc � June) Fes. -- and if we lose this suit, we could also be held liable for the cost on the other side for the -- bringing this up, the cost of their lawyers and all that? MR. KLATZKOW: It's a possibility. I don't think it's a likely -- I don't think that's likely though. I think our suit has merit. I mean, you've seen the videos. COMMISSIONER COLETTA: Okay. COMMISSIONER COYLE: Madam Chair? CHAIRMAN FIALA: Yes. Commissioner Coyle? COMMISSIONER COYLE: I'd like to ask a question concerning the potential resolutions for the Stevie Tomato's problem. The problem really is that we and the neighbors believe that the outdoor dining /sports bar aspect of Stevie Tomato's is an incompatible use. Why can't we make that decision and remove that use from Stevie Tomato's? They can continue operation as they are as a restaurant that serves alcoholic beverages with food, but they cannot have sports bar activities in an outdoor setting. It appears to me that we can make that decision, and then Stevie Tomato's would either comply or they would have to file suit against us. That leaves DAD out of this thing, I think. What do you think of that, County Attorney? MR. KLATZKOW: I don't think that's -- I think the approach we took by seeking injunction against Stevie Tomato's bar use was the way to go, sir. I mean, it was the board that approved the PUD. Stevie Tomato's is arguing that under the PUD they have the right to run this business. Staff actually agrees with that. So it's not an unsupportable position. And you know, this office is taking the path that, no, Planning Commission said that there should be no drinking establishments, and that's what you have out there. COMMISSIONER COYLE: Yeah. Well, I'm not -- I'm not convinced by the staff s position on this issue, nor do I believe the staff s position is legally binding on the decision that we make. It's my Page 185 Agenda Item No. 12C JUnep� r ! }z 6 opinion that the staff and/or the county commissioners were deceived by Stevie Tomato's with respect to the type of business they were actually operating there. MR. KLATZKOW: I don't think it was any deception, sir. CHAIRMAN FIALA: I do, because I thought it was a restaurant. If they say restaurant, it's a restaurant. But clearly, in taking a look at it, it's a bar. They're selling liquor on the outside. It's a sports bar. They have all of the sports televisions that's going. It doesn't even look like a restaurant on -- MR. KLATZKOW: Ma'am, I agree with you except that when you look at the site plans, it was a full bar with the TVs shown on it, and that's what we approved. COMMISSIONER HALAS: I think what need to do -- COMMISSIONER HENNING: Madam Chair? COMMISSIONER HALAS: -- is address the issue at hand, and that's taking care of the issue that -- the motion that was made by County Commissioner Henning, and address that, and then we'll just let the chips fall where they may with Stevie Tomato's, with regards to that court case. CHAIRMAN FIALA: Okay. Now Commissioner Henning wanted to say something and then Commissioner Coletta. COMMISSIONER HENNING: Madam Chair, the -- I would really like to continue this and seek some guidance from the county attorney individually. If we approve this agreement and not removing DAD from the lawsuit, they're going to walk. They're not going to sign this agreement. If we -- if we don't -- if we do remove them, we're going to run the risk of our biggest problem, and that's that bar over there that the attorney wants a phone call when the shutters are open, and that's just no resolution. So I would like some time to consult with the county attorney Page 186 Ay°�,,da Jun . 0,q and see what we can provide to the residents, the fastest and the best solution. CHAIRMAN FIALA: Okay. Did we have a motion on the floor? COMMISSIONER HENNING: I did have a motion. I don't think it was seconded. COMMISSIONER COLETTA: But I'll tell you what, Commissioner Henning, this is -- this is one you have worked extremely hard on, and I can understand how you want to exercise every bit of due diligence you possibly can. I'll support your motion for a continuance. COMMISSIONER COYLE: I'll second. CHAIRMAN FIALA: Okay. So we've got a motion by Commissioner Henning and support by Commissioner Coletta and a second by Commissioner Coyle. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Okay. That passes a 5 -0 for continuation. Thank you. Item #I OD OBTAIN DIRECTION FROM THE BOARD OF COUNTY COMMISSIONERS IN RESPONSE TO ITEM #6B FROM THE Page 187 Agenda item No. 12C October 14, 2008 Agenda �teWWMA116 June 10, 2008 Page 38 of 45 DEVELOPER AGREEMENT THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement ") is made and entered into this of , 2008, by and between DAD Development Corp., a Florida corporation, whose address is 2375 Tamiami Trail North, Suite 210, Naples, Florida ("Developer" }, and COLLIER COLTNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as "County RECITALS- WHEREAS, the County, by and through its Board of County Commissioners (the "Board "), makes the following findings and determinations: Developer is the owner of certain developed lands within the unincorporated area of Collier County, Florida described on Exhibit A attached hereto (the "Property") There is a two -story building located at 15205 Collier Boulevard, Naples, Florida which is within the Property (the `Building") The Building was constructed pursuant to county permits issued in 2005 and received its Certificate of Occupancy on March 29, 2006. The Property is within the lands covered by a Planned Unit Development known as the "Richland Planned Unit Development Ordinance ", enacted as an ordinance by the County on February 12, 2002 as Ordinance No. 02 -07 (the "PUD "). The PUD repealed and superseded Ordinance 97 -27, and, among other things, changed the permitted uses on certain lands within the PUD, including the Property, from residential to commercial. The application for the PUD was filed in October, 2001 by the owner of the Property at that time, Kenco Development, Inc. by Kenco's agent. The Developer was not involved in the processing of the application for the PUD and was not aware of inconsistencies in the recommendations of the Collier County Planning Commission and the County staff regarding, among other things, the maximum number of stories allowed on buildings within the Property. The Developer purchased the Property subsequent to the adoption of the PUD without knowledge of the aforementioned inconsistencies and relied in good faith on the express terms of the PUD. WHEREAS, the Board has been advised that there is uncertainty as to a favorable outcome if the County seeks judicial remedies against Developer; and WHEREAS, the County has determined that the interests of the citizens of Collier County, including the citizens residing in the residential portions of the Richland PUD will be Agenda item rJo. 12C (Drtaner 14. '200.3 Agenda Gi- -a (a' 2A ' ' 6 June 10, 2008 Page 39 of 45 better served by an agreement between the Developer and the County under which the Developer is required to take specified remedial actions; and WHEREAS, the Developer is willing to take the remedial actions set forth in this Agreement if the Developer is assured by the terms of this Agreement that the County will not seek judicial remedies that would require the Developer to demolish the second floor of the Building or be barred from using the second floor of the Building or that the County will not seek to enact any legislation or take any other action that would make the Building a non- conforming use or interfere with the use of the Building, including its second storey, as permitted by the PUD; and WHEREAS, after reasoned consideration, the Board finds and reaffirms that this Agreement is consistent with both the public interest and with the comprehensive plan. WITNESSETH: NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the parties the receipt of which is acknowledged by each Party, and in consideration of the benefits to be obtained by each of the parties by each ...� party's compliance with the covenants contained herein, the parties agree as follows: 1. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. 2. The Developer will take the following actions (the "Remedial Actions ") at the time and in the manner specified herein: A. Landscape Buffer: The Developer will install, at Developer's expense, a landscape buffer (the "Landscape Buffer") within those areas shown on the drawing attached hereto as Exhibit B entitled "Overall Site Concept Plan ". The Landscape Buffer wilt meet the following criteria and specifications: The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing S foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. The proposed planting as designed will install Areca Palms of at least 16feet in height, planted approximately 10 feet on center, starting 35 feet west of the western edge of the Building, extending the full length of the Building to a paint that is at Least 100 feet east of the east corner of the Building. In addition, 2 rows of Cabbage palms planted 10 tol2 feet on center (per row). These trees shall be planted with a clear trunk height of approximately 16 feet to 21 feet (which equals 21 feet to Page 2 of 7 Arl- I is Ito m Rl 17(; Y October 14, 2008 Agenda Ielog.11 A116 June 10, 2008 Page 40 of 45 26 feet overall height). These Cabbage palms will be planted with the fronds removed, as is consistent w/ Landscape standards, as this dramatically increases the survival rate of the trees. It is expected that these Cabbage palm trees should be fully leafed out in 24 months. It is understood that this buffer will be fertilized and maintained on a consistent basis to ensure the long term success and survival of the buffer. It is also understood that, as with any living product, inherent risks may exist that include acts of God, such as hurricanes and/or freezes or other events that are beyond the control of the developer, and that such occurrences may prevent or delay the development of the Landscape Buffer to the size and opacity specified. The Developer shall take such steps as are prudent, reasonable, and in accordance with customary landscape installation and maintenance procedures in this area. Any damage that may occur to the buffer will be repaired as effectively as possible, but additional time may need to be allowed to allow the buffer to repair any damage. B. Preserve Buffer. The Developer will install a landscape buffer within the area designated in the PUD as "Preserve" at the location marked as such in the drawing attached hereto as Exhibit B (the "Preserve Buffer "). The Preserve Buffcr will meet the following criteria and specifications: Three rows of Saba] Palms as follows: (1) a front row of 10 trees with 11' ct and 16' oa; (2) a middle row of 10 trees with 16' ct and 2l' oa; (3) a rear row of 11 trees with 21' ct and 26' oa; Thence going to two rows at the point shown in the drawing, consisting of Sabal Palms as follows: (1) a front row of 8 trees with 10' ct and 15' oa; (2) a rear row of 8 trees with 15' et and 21' oa. C. Opacity film on Building's south -side second floor windows: Until such time as the Landscape Buffer has grown to the height and opacity standards set forth herein, the Developer shall install an opaque window film ( "Opaque Film ") on the Building's second floor windows as follows: (i) The Opaque Film shall be installed at the time any spaces are leased on the south side second floor and shall remain in place until the Landscape Buffer has achieved the height and opacity standards set forth, at which time the Opaque Film may be removed. (ii) The Opaque Film shall be of sufficient opacity to prevent persons in the second floor spaces from clearly observing the residences on Spider Lily Lane. (iii) The Opaque Film need not be installed on the windows of any unleased second floor spaces so long as such spaces are locked and access is under the control of the Developer. D. Extension of wall on west side of Building: Developer shall extend the existing 8 foot concrete wall along the west side of the Building 175 feet north on the property line to the north side of the existing dumpster enclosure. Page 3 of 7 October 14, 20G3 Agenda lFeftR Co, , I , 6 June 10, 2008 Page 41 of 45 E. The Developer shall begin construction of the wall and installation of the buffers within 60 days from receipts of all necessary permits and approvals, following the Effective Date as defined herein. F. Resolution of disputes over achievement of opacity standards: in the event the County shall determine that the opacity standards for the Landscape Buffer have not been met, after being advised in writing by a professional landscape architect (LSA) to such effect, the County shall so notify the Developer in writing and the Developer shall have 30 days to take appropriate corrective actions, or the Developer shall dispute the County's determination by the written opinion of an LSA. In such event, the two LSA's shall attempt to resolve the dispute, and if unable, shall jointly select a third LSA, whose decision shall be binding. The County agrees as follows: A. The County finds, determines and acknowledges that the Developer has and had a vested right to construct the Building with two stories and at the height so constructed and that the County is estopped from asserting the contrary in any proceeding. B. That the County will take no legislative or administrative action, such as, but not Iimited to, a rezoning or amendment of the PUD that would make the Building a nonconforming use or in any other way prevent its reconstruction and/or repair in the event it is damaged or destroyed. C. That the Remedial Actions adequately address and mitigate all adverse impacts of the Building, if any, on the surrounding residential properties. 4. This Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act. S. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. 6. In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Agreement. 7. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed as follows: To County; Board of County Commissioners Page 4 of 7 Agenda item No. 12C Gctoner 14, Z00d Agenda E errn o 312 1 , 6 June 10, 2008 Page 42 of 45 Attn: County Manager Harmon Turner Building 3301 Tamiami Trail East Naples, FL 34112 Phone: (239) 252 -4010 To Developer: DAD Development Corp. 2375 Tamiami Trail North, Suite 210 Naples, FL 34103 Phone: (239) 643 -1429 Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight delivery service. 8. Disputes: Disputes concerning the achievement of the height or opacity standards for the Landscape Buffer or the Preserve Buffer shall be resolved in the manner set forth in paragraph 2. For all other disputes under this Agreement, the parties shall first use the County's then- current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, said remedy being cumulative with any and all other remedies available to the parties for the enforcement of this Agreement. 9. Dismissal of Developer from Lawsuit: The County shall dismiss Developer as a party to that case pending in the Circuit Court for Collier County entitled Collier County v. Pebble Page, Inc. d/b /a Stevie Tomato's Sports Page Bar & Grill, and DAD Development Corporation, Case No. 08- 1872 -CA (the "Lawsuit "), and will not refile any action against Developer based on the same cause of action as alleged the Lawsuit. 10. Effective Date: This Agreement shall be executed by both parties following Board approval of this Agreement, but shall become effective ( "Effective Date ") only after the County has filed a notice of dismissal in the Lawsuit. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW Page 5 of 7 Attest: Dwight Brock Clerk of Board Board of County Commissioners Deputy Clerk Approved as to form and legality: Jeffery A. Klatzkow County Attorney Tom Henning, Chairman DAD Development Corporation In Page 6of7 Ray DeAngelis, President 0Ctober 14 8 Agenda Itcrsc lzA 1 June 10, 2008 Page 43 of 45 Agenda Item No. 12C October 14, 2008 Agenda IteWh 1: 11 b June 10, 2008 Page 44 of 45 Exhibit A Tract 1, Pebblebrooke Commercial Phase N, according to the Plat thereof recorded at Plat Book 41, Pages 93 and 94, Public Records of Collier County, Florida Page 7 of 7 < LO isuus ififfif Jill I /; /I; r: - -- - - - ----- - rl - 3>1! lk • - -- - - - ----- - rl - 3>1! Agenda Item fro. 12C October 14, 2008 Page 97 of 116 DEVELOPER AGREEMENT THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement ") is made and entered into this of , 2008, by and between DAD Development Corp., a Florida corporation, whose address is 2375 Tamiami Trail North, Suite 210, Naples, Florida ( "Developer "), and COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as "County RECITALS: WHEREAS, the County, by and through its Board of County Commissioners (the "Board "), makes the following findings and determinations: Developer is the owner of certain developed lands within the unincorporated area of Collier County, Florida described on Exhibit A attached hereto (the "Property "). There is a two -story building located at 15205 Collier Boulevard, Naples, Florida which is within the Property (the `Building ")_ I The Building was constructed pursuant to county permits issued in 2005 and received its Certificate of Occupancy on March 29, 2006. The Property is within the lands covered by a Planned Unit Development known as the "Richland Planned Unit Development Ordinance ", enacted as an ordinance by the County on February 12, 2002 as Ordinance No. 02 -07 (the "PUD "). The PUD repealed and superseded Ordinance 97 -27, and, among other things, changed the permitted uses on certain lands within the PUD, including the Property, from residential to commercial. The application for the PUD was filed in October, 20012 by the owner of the Property at that time, Kenco Development, Inc.., by Kenco's agent. The Developer was not involved in the processing of the application for the PUD and was not aware of inconsistencies in the recommendations of the Collier County Planning Commission and the County staff regarding, among other things, the maximum number of stories allowed on buildings within the Property. The Developer purchased the Property subsequent to the adoption of the PUD without knowledge of the aforementioned inconsistencies and relied in good faith on the express terms of the PUD. WHEREAS, the Board has been advised that there is uncertainty as to a favorable outcome if the County seeks judicial remedies against Developer; and Agen-da 11em No. 12` Octc-b --r 14, 2 -10s Page 98 of 16 WHEREAS, the County has determined that the interests of the citizens of Collier County, including the citizens residing in the residential portions of the Richland PUD will be better served by an agreement between the Developer and the County under which the Developer is required to take specified remedial actions; and WHEREAS, the Developer is willing to take the remedial actions set forth in this Agreement if the Developer is assured by the terms of this Agreement that the County will not seek judicial remedies that would require the Developer to demolish the second floor of the Building or be barred from using the second floor of the Building or that the County will not seek to enact any legislation or take any other action that would make the Building a non- conforming use or interfere with the use of the Building, including its second storey, as permitted by the PUD; and WHEREAS, after reasoned consideration, the Board finds and reaffirms that this Agreement is consistent with both the public interest and with the comprehensive plan. WITNESSETH: NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the parties the receipt of which is acknowledged by each Party, and in consideration of the benefits to be obtained by each of the parties by each party's compliance with the covenants contained herein, the parties agree as follows: 1. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. 2. The Developer will take the following actions (the "Remedial Actions ") at the time and in the manner specified herein: A. Landscape Buffer: The Developer will install, at Developer's expense, a landscape buffer (the "Landscape Buffer ") within those areas shown on the drawing attached hereto as Exhibit B entitled "Overall Site Concept Plan". The Landscape Buffer will meet the following criteria and specifications: The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing 8 foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. The proposed planting as designed will install Areca Palms of at least 16 feet in height, planted approximately 10 feet on center, starting 35 feet west of the western edge of the Building, extending the full length of the Building to a point that is at least 100 feet east of the east corner of the Building. In addition, 2 rows of Cabbage palms planted 10 to_12 feet on center (per row). These trees shall be planted with a clear trunk height of approximately 16 feet to 21 feet (which equals 21 feet to Agenda Item No. 12 October 14, 2003 Page 99 of 116 26 feet overall height). These Cabbage palms will be planted with the fronds removed, as is consistent w� with Landscape standards, as this dramatically increases the survival rate of the trees. It is expected that these Cabbage palm trees should be fully leafed out in 24 months. It is understood that this buffer will be fertilized and maintained by Developer on a consistent basis to ensure the long term success and survival of the buffer. It is also understood that, as with any living product, inherent risks may exist that include acts of God, such as hurricanes and/or freezes or other events that are beyond the control of the dDeveloper, and that such occurrences may prevent or delay the development of the Landscape Buffer to the size and opacity specified. The Developer shall take such steps as are prudent, reasonable, and in accordance with customary landscape installation and maintenance procedures in this area. Any damage that may occur to the buffer will be repaired as effectively as possible, but additional time may need to be allowed to allow the buffer to repair any damage. In the event of any conflict between the specifications of the Landscape Buffer contained in this Agreement and the specifications for the buffer contained in Exhibit B the specifications in Exhibit B shall control. B. Preserve Buffer: The Developer will install a landscape buffer within the area designated in the PUD as "Preserve" at the location marked as such in the drawing attached - hereto as Exhibit B (the "Preserve Buffer ") so lone as the County approves the Preserve Buffer as shown on Exhibit B and no further permitting is required by South Florida Water Management District... The Preserve Buffer will meet the following criteria and specifications which are hereby approved -. Three rows of Sabal Palms as follows: (1) a front row of 10 trees with 11' e4 clear trunk ( "et) and 16' ea_Loverall height ( "oa" ); (2) a middle row of 10 trees with 16' et and 21' oa; (3) a rear row of 11 trees with 21' ct and 26' oa; Thence going to two rows at the point shown in the drawing, consisting of Sabal Palms as follows: (1) a front row of 8 trees with 10' ct and 15' oa; (2) a rear row of 8 trees with 15' ct and 21' oa. C. Opacity film on Building's south -side second floor windows: Theme saeh time as the Landseape B f has "r-own to the height and epac-ity stafidafEls set f4411 heFe Developer shall install an opaque window film ( "Opaque Film ") on the Building's second floor windows as follows: (i) The Opaque Film shall be permanently installed at the time any spaces are leased on the south side second floor_ aflEl shall r-e.n;;;; r ' a_ee tintil the r andse° e Buffef has aeiiieved the b Page 3 of 8 Agenaa a id %. -1124 October 14. 2008 page 1 oo of 1 t 6 (ii) The Opaque Film shall be of sufficient opacity to prevent persons in the second floor spaces from clearly observing the residences on Spider Lily Lane and shall be installed from the bottom of the window to a height of seven (7) feet above the floor.-. (iii) The Opaque Film need not be installed on the windows of any unleased second floor spaces so long as such spaces are locked and access is under the control of the Developer. D. Extension of wall on west side of Building: Developer shall extend the existing 8 foot concrete wall along the west side of the Building 175 feet north on the property line to the north side of the existing dumpster enclosure. E. The Developer shall begin construction of the wall and installation of the buffers within 60 days from receipts of all necessary permits and approvals, following the Effective Date as defined herein. F. Resolution of disputes over achievement of opacity standards: In the event the County shall determine that the opacity standards for the Landscape Buffer have not been met, after being advised in writing by a professional landscape architect (LSA) to such effect, the County shall so notify the Developer in writing and the Developer shall have 30 days to take appropriate corrective actions, or the Developer shall dispute the County's determination by the written opinion of an LSA. In such event, the two LSA's shall attempt to resolve the dispute, and if unable, shall jointly select a third LSA, whose decision shall be binding. G. Relocation of Dumpster: The Developer shall relocate the existing dumpster, deslunated as Ex1sUn,r Dumpster to be Relocated" on the attached drawinu identified as Exhibit C from the location shown on Exhibit C to one of the locations desi „nated on Exhibit C as "Proposed DP Locations” which are approximately 100 feet north of the existing location Provided, however. that Developer's ohli�,ation to relocate the dumpster shall only arise if the County grants appropriate administrative permission which Nvill allow the dumpsters at the "Proposed DP Locations" to be enclosed by a chain link fence with vinyl slats in lieu of a concrete wall, which would otherwise be required by the LDC and which will allow the dumpster to be located within the "10' Accessory S "thack" as shown on Exhibit C H. The Developer shall cause that area shown on Exhibit C to be striped and marked as a "No.Parkirig, Tow Awav Zone" 3. The County agrees as follows: A. The County finds, determines and acknowledges that the Developer has and had a vested right to construct the Building with two stories and at the height so constructed and that the County is estopped from asserting the contrary in any proceeding. B. That the County will take no legislative or administrative action, such as, but not limited to, a rezoning or amendment of the PUD that would make the Building a nonconforming Page 4of8 Agenda item No. 12C October 14, 2008 Page 101 of 116 use or in any other way prevent its reconstruction and/or repair in the event it is damaged or destroyed. C. That the Remedial Actions adequately address and mitigate all adverse impacts of the Building, if any, on the surrounding residential properties. 4. This Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act. 5. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all assigns and successors in interest to the parties to this Agreement. 6. In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Agreement. 7. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed as follows: To County: Board of County Commissioners Attn: County Manager Harmon Turner Building 3301 Tamiami Trail East Naples, FL 34112 Phone: (239) 252 -4010 To Developer: DAD Development Corp. 2375 Tamiami Trail North, Suite 210 Naples, FL 34103 Phone: (239) 643 -1429 Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight delivery service. 8. Disputes: Disputes concerning the achievement of the height or opacity standards for the Landscape Buffer or the Preserve Buffer shall be resolved in the manner set forth in paragraph 2. For all other disputes under this Agreement, the parties shall first use the County's then - current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the Page 5 of 8 Agenda item Oct b} r 14, 2003 Page 02 of i 15 terms of this Agreement, said remedy being cumulative with any and all other remedies available to the parties for the enforcement of this Agreement. 9.9. that ease pending - iB the GiFeHit GOW4-fOF Goilier- Go nt , rit1 d GOilieF C- * D l Fjt1 aHEI DAP 9fatie , reuse No. 08 1872 GN (the "bawsuit"), and will flOt Fefile Hfl�' aC-tion against 4-9: Effective Date: This Agreement shall be executed by both parties following Board approval of this Agreement. << 10. Notwithstanding anything to the contrary in this Agreement: A. The Developer's obligation to apply for and process permits for the Remedial Actions shall only require the Developer to apply to the County for an Insubstantial SDP Chance If Permits, from either the County or any other governmental agency, for any of the Remedial Actions are denied at the staff level, or if conditions are placed on the issuance of any such permit that would require Developer to pay more to complete the Remedial Action than the actual cost of the work constituting the Remedial Action, then Develo er's obligation to take such Remedial Action shall cease B. If anv of the Remedial Actions require permits from any other governmental agency (including the South Florida Water Management District) Developer shall have no obligation to apply for or process permits from such agency and no obligation to take any Remedial Action in the absence of _a permit. However, where the Remedial Action involves work in an area owned by another person or entity, where the proper applicant for such permit would be such other person or entity, then if such person or entity, at their sole expense obtains a permit for the Remedial Action, then Developer will take the Remedial Action with Developer's cost being limited solely to the actual cost of the Remedial Action and any other costs shall be paid by the permit applicant. Developer shall cooperate with such person or entity in a permit application by providing drawings and other information that Developer has obtained in the course of applying for County permits, but shall not have an obligation to spend monies solely for the agency application. If such required permit is not received then the Developer shall have no obligation to take the Remedial Action C. With respect to the issues set forth in subparagraphs A and B above the County and Developer shall use their best efforts to modify the Remedial Actions so as to avoid the necessity of obtainmg a pen»it from a State Permitting Agency Such modifications will be keeping with the intent of this Agreement and the cost of anv modified Remedial Actions shall not exceed to costs to Developer contemplated by this Agreement • • - _ Mao _• "JIL Page 6 of 8 Attest: Dwight Brock Clerk of Board Deputy Clerk Approved as to form and legality: Jeffrey A. Klatzkow County Attorney Agenda Item No. 12C October 14, 2008 Page 103 of 116 Collier County Florida by and through its Board of County Commissioners IM Tom Henning, Chairman DAD Development Corporation Ray DeAngelis, President Page 7of8 Agenda item. No. Goober 14 !-) -a Page !C-4 of ; ',3 Exhibit A Tract 1, Pebblebrooke Commercial Phase IV, according to the Plat thereof recorded at Plat Book 41, Pages 93 and 94, Public Records of Collier County, Florida Page 8 of 8 Agenda Item No. 12C October 14, 2008 COPY Page 105 of 116 IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NUMBER: o -�g 7-2 --Qql) COLLIER COURY, A POLITICAL. SUBDIVISION OF THE STATE OF FLORIDA, Plaintiff, vs. PEBBLE PAGE INC., d/b /a STEVIE TOMATO'S SPORTS PAGE BAR & GRILL, and j :w DAD DEVELOPMENT CORP., J Defendants. =i C3 r COMPLAINT FOR DECLARATORY ACTION � ca C 7) AND INJUNCTIVE RELIEF COMES NOW, the Plaintiff, COLLIER COUNTY, by and through its undersigned counsel, and sues the Defendants, PEBBLE PAGE INC., d/b /a Stevie Tomato's Sports Page Bar & Grill and DAD Development Corp., and alleges: GENERAL ALLEGATIONS I. This is an action for declaratory, preliminary, and permanent injunctive relief. 2. At all times material hereto, the Plaintiff, COLLIER COUNTY, is a political subdivision of the State of Florida, charged by statute and local ordinance with maintaining, promoting and protecting the public health, safety and welfare. 3. Pursuant to § 125.01(h), Fla. Stat., Collier County has the authority to establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public. 4. At all times material hereto, the Defendant, PEBBLE PAGE INC., was and is a Florida corporation authorized and doing business in the State of Florida, and more particularly in Collier County, Florida. Agena O. '4.2O'i3 Page I H, of'' c Complaint Page 2 of 12 5. At all times material hereto, the Defendant, PEBBLE PAGE, INC., owned and operated a sports bar under the name of Stevie Tomato's Sports Page Bar and Grill ( "Stevie Tomato's "), located at 15215 Collier Blvd., Naples, FL 34119, known as the Pebblebrooke Location. 6. At all times material hereto, the Defendant, DAD DEVELOPMENT CORP., was and is a Florida corporation authorized and doing business in the State of Florida, and more particularly in Collier County, Florida. 7. Stevie Tomato's is located in the Richland Planned Unit Development ( "PUD ") in the Community Commercial District. S. At all times material, DAD DEVELOPMENT CORP. owned and operated Pebblebrooke Commercial Phase IV in the Community Commercial District where Stevie Tomato's is located. 9. Venue is proper in Collier County, Florida, pursuant to § 47.011, Fla. Stat., because Collier County is where the cause of action accrued and where the subject property is located. ZONLNG HISTORY 10. The property consisting of the Richland PUD was originally rezoned from A -2 (agriculture) to planned unit development ( "PUD ") in Ordinance No. 90 -39 adopted on or about May 22, 1990. 11. The rezone from PUD to PUD (Richland) was created with Ordinance No. 96 -03 adopted on or about February 13, 1996 which repeated Ordinance No. 90 -39 in its entirety. 12. The rezone from PUD to PUD (Richland) was created by Ordinance No. 97 -27 on June 10, 1997. This Ordinance repealed and replaced Ordinance No. 96 -03 in its entirety. 13. On February 12, 2002, the Richland PUD was again amended and rezoned by Ordinance No. 02 -07, which reduced the total number of residential units from 650 to 400 units, reducing the residential area by approximately 3.2 acres, and increasing the commercial area by the same amount. This Ordinance constituted a rezone of the property. Ordinance No. 02 -07 repealed and replaced Ordinance 97 -27 in its entirety. (See Exhibit A, Ordinance No. 02 -07). 14. The Richland PUD is a "mixed -use" development, containing both commercial and single family residences. Agend''a item No. 12C October 14, 2003 Page 107 of 116 Complaint Page 3 of 12 15. Rezoning requires that certain criteria enumerated in the Collier County Land Development Code be met. Among this criteria is that the uses contemplated in the proposed rezoning are compatible with the surrounding area. 16. The area directly adjacent to the rezoned commercial area is comprised of single family residential homes. 17. All rezoning petitions are required to be reviewed by the Collier County Planning Commission. The petition that resulted in Ordinance No. 02 -07, was heard by the Planning Commission on January 17, 2002. (See Exhibit B, Planning Commission Minutes 1 /17 /02). 18. Among the uses requested by the applicant was "Eating and Drinking Places." Collier County uses these classifications to determine permitted uses in many of its PUD documents. Eating and Drinking Places are defined by the Standard Industrial Classification Manual (1987) as follows: Eating Places 5812 Establishments primarily engaged in the retail sale of prepared food and drinks for on- premise or immediate consumption. Caterers and industrial and institutional food service establishments are also included in this industry. • Automats (eating places) • Beaneries • Box lunch stands • Buffets (eating places) • Cafes • Cafeterias • Carry-out restaurants • Caterers • Coffee shops • Commissary restaurants • Concession stands, prepared food (e.g., in airports and sports arenas) • Contract feeding • Dairy bars • Diners (eating places) • Dining rooms • Dinner theaters • Drive -in restaurants • Fast food restaurants Agen'ta i`ei r`: J. ter. October 14, 20r 3 r ae i 08 of 1-,6 Complaint Page 4 of 12 • Food bars • Food service, institutional • Frozen custard stands • Grills (eating places) • Hamburger stands • Hot dog (frankfurter) stands • Ice cream stands • Industrial feeding • Lunch bars • Lunch counters • Luncheonettes • Lunchrooms • Oyster bars • Pizza parlors • Pizzerias • Refreshment stands • Restaurants • Restaurants, carry -out • Restaurants, fast food • Sandwich bars or shops • Snack shops • Soda fountains • Soft drink stands • Submarine sandwich shops • Tea rooms • Theaters, dinner Drinking Places 5813 Establishments primarily engaged in the retail sale of alcoholic drinks, such as beer, ale, wine, and liquor, for consumption on the premises. The sale of food frequently accounts for a substantial portion of the receipts of these establishments. • Bars (alcoholic beverage drinking places) • Beer gardens (drinking places) • Beer parlors (tap rooms) • Beer taverns • Beer, wine, and liquors: sale for on- premise consumption • Bottle clubs (drinking places) • Cabarets • Cocktail lounges • Discotheques, alcoholic beverage • Drinking places, alcoholic beverages • Night clubs • Saloons (drinking places) • Tap rooms (drinking places) Agenda Item No. I 2 October 14, 2008 Page 109 of 116 Complaint Page 5 of 12 • Taverns (drinking places) • Wine bars 19. The Planning Commission, in reviewing the list of requested uses and to ensure compatibility and protect the adjacent neighborhood, recommended that restaurants be allowed, but not drinking places. 20. This recommendation was accepted by the Board of County Commissioners on February 12, 2002, so that the approved uses in the Richland PUD include SIC Code 5812.(Eating Places), with SIC Code 5813 (Drinking Places) excluded. These limitations were made a part of the PUD zoning ordinance. (See Exhibit C, BCC Minutes 2/12/02). FACTUAL ALLEGATIONS 21. The Richland PUD Community Commercial District is located on the southwest corner of Immokalee Road and Collier Blvd., in Section 27, Township 48 South, Range 26 East, Collier County, Florida, consisting of approximately 7.02 acres. 22. The Community Commercial District is immediately adjacent to the Pebblebrooke residential community, also part of the Richland PUD (Ordinance No. 02 -07). (See Exhibit D, Aerial photograph). 23. Upon information and belief, DAD Development Corp. leased or leases a commercial unit to Stevie Tomato's in the Pebblebrooke commercial area. 24. DAD Development Corp. allows Stevie Tomato's to operate both as a restaurant and bar. However the bar and drinking activities are in direct violation of the zoning ordinance. 25. At the time of the PUD amendment, specifically on January 17, 2002, the DAD Development Corp., was a party to a contract to purchase the Pebblebrooke Commercial Phase IV area, part of the Community Commercial District, including the unit which would be occupied by Stevie Tomato's. 26. DAD Development Corp. knew or should have known that the Planning Commission and the BCC voted to specifically exclude "drinking places" in the Richland PUD. Cc"uber 14 ,X�8 page 1 19 of 1 ° 6 Complaint Page 6 of 12 27. DAD Development Corp. knew or should have known that the Richland PUD specifically includes "eating places" and specifically excludes "drinking places." 28. DAD Development Corp. was required to comply with the Richland PUD zoning ordinance in effect at the time of purchase and any subsequent changes in the zoning laws if applicable. 29. DAD Development Corp. is in direct violation of the Richland PUD zoning ordinance for leasing a commercial unit to a restaurant or "eating place" which also operates as a "drinking place," especially after regular dining hours. 30. Stevie Tomato's opened for business on or about June 1, 2006. Since opening, Pebblebrooke residents have consistently complained to Collier County and the Collier County Sheriff's Office that patrons create excessive noise and various disturbances in the parking lot and surrounding areas, at all hours of the day and night. Noise is also generated from motorized vehicles and motorcycles in the parking lot and surrounding area. 31. Stevie Tomato's subsequently opened the outside bar and patio area. Since the outside bar area opened, the patrons create excessive noise with loud shouting, cheering and singing in this area. The noise increases and becomes more intrusive as the evening progresses. The noise also increases during televised sporting events with patron shouting and cheering in response to sporting events. 32. This excessive noise is intrusive and offensive to the Pebblebrooke residents. 33. Pebblebrooke residents have repeatedly complained to the Board of County Commissioners seeking to have the Board of County Commissioners strictly enforce the limitations of the Richland PUD zoning ordinance. 34. Pebblebrooke residents have repeatedly called the Collier County Sheriffs Office to this location for noise complaints, suspicious incidents, and other disturbances. (See Exhibit E, Activity Log (1/1/06 - 3/4/08)). Incidents include loitering, disorderly conduct and other criminal activity. 35. Stevie Tomato's was Iegally authorized to operate as an "eating place" as defined by Section 5812, Standard Industrial Classification Manual 1987; however Stevie Tomato's is actually Aaenda Item No. 12C October 14, 2008 Page 111 of 116 Complaint Page 7 of 12 operating as both an eating place and a "drinking place" as defined by Section 5813 of the SIC Code. 36. Stevie Tomato's is operating as a drinking place in that: a. Stevie Tomato's is open seven days a week until 2:00 a.m. b. Stevie Tomato's advertises "drinking events" on its web -page calendar including Stevie's Bladder Bust on Wednesday (2128/08); Liquid Thursday from 9:00 p.m. to 2:00 a.m.; Late Night Happy Hour starting at I0:00 p.m. on Fridays; Drink Specials starting at 9:00 p.m. on Saturdays; and Drink Specials during the game on Sundays. C. Stevie Tomato's also promotes itself as a sports bar, " Stevie's is Sports" with special "game watching" events and drink specials. d. Stevie Tomato's home web -page advertises: "We've worked hard to bring you a family friendly snorts bar with a huge menu, great entertainment and cool specials." (emphasis added.) e. The web -page also promotes "Best Sports Bar" and "Best Happy Hour." (See Exhibit F, web -site DVD dated 2/27108). f. On its web -page and through its operations, Stevie Tomato's holds itself out to the public as a bar. 37. These drinking activities and their starting times are inconsistent with "eating place" operations. The focus is on drinking, rather than typical restaurant and eating activities. Further, the late hours, open until 2:00 a.m., are much later than traditional eating and dining hours. 38. Stevie Tomato's is in direct violation of the Richland PUD zoning ordinance for operating as a "drinking place" or bar or sports bar after regular dining hours. 39. The fact that food sales constitutes a "substantial portion of the receipts" is not determinative as ,to whether the business is operating as a drinking place in this instance. This is specifically addressed in SIC Code 5813, Drinking Place. Agenda Item No,. October 14. 20n3 }age f 2 of Complaint Page 8 of 12 40. Stevie Tomato's bar activities in violation of the PUD zoning ordinance adversely affect the public health, safety and welfare of the Pebblebrooke residents and Collier County citizens. COUNT I: DECLARATORY ACTION 41. Plaintiff realleges and incorporates paragraphs 1 through 40 above. 42. This is a claim for declaratory judgment and supplemental relief involving the interpretation of the Collier County Richland PUD (Ordinance No. 02 -07) zoning ordinance. 43. Collier County seeks a declaratory judgment that the plain language of the Richland PUD (Ordinance No. 02 -07) authorizes only eating places as defined by SIC Code § 5812. 44. Collier County seeks a declaratory judgment that the Richland PUD (Ordinance No. 02 -07) strictly prohibits drinking places as defined by SIC Code § 5813, since drinking places § 5813 were intentionally excluded in the PUD zoning ordinance. 45. Collier County seeks a declaratory judgment that Stevie Tomato's is operating a drinking place as defined by SIC Code § 5813 and as such is in violation of the Ordinance No. 02 -07. WHEREFORE, Plaintiff, Collier County, demands judgment declaring the rights of the parties under the PUD and that the Defendants, Stevie Tomato's and DAD Development Corp., are in violation of the Richland PUD (Ordinance No. 02 -07), and any other supplemental relief as appropriate. COUNT II: VIOLATION OF COLLIER COUNTY ZONING ORDINANCE Injunctive Relief: Operation of Outside Bar Area 46, The Plaintiff, COLLIER COUNTY, hereby adopts and realleges all of the "General Allegations" stated herein, more specifically paragraphs 1 through 40. 47. Stevie Tomato's is operating its outside bar and patio area solely as drinking place in violation of the Richland PUD 02 -07. (See Exhibit G, Photograph of outside bar area.) Agenda Item No. 12C October 14, 2008 Page 113 of 116 Complaint Page 9 of 12 48. The Richland PUD 02-07 provides that only Eating and Drinking Places as defined by SIC Code 5812 are authorized. SIC Code 5812 applies to Eating Places. 49. By specifically excluding drinking places, e.g. bars, taverns and saloons, in the Richland PUD, drinking places are strictly prohibited. 50. The activities and the patrons in the outside bar and patio area, open until 2:00 a.m., are annoying, disruptive and harassing to the Pebblebrooke residents. (See Exhibit H, Pebblebrooke resident DVD.) 51. Collier County and the Pebblebrooke residents have no adequate remedy at law. The use and value of these private homes has been adversely affected. 52. By acting in violation of the PUD zoning ordinance, Stevie Tomato's is causing unnecessary and irreparable harm to Collier County and the Pebblebrooke residents. 53. Unless Stevie Tomato's is permanently enjoined from operating a drinking place, the continued activities of Stevie Tomato's will result in irreparable injury to the public. WHEREFORE, Plaintiff, Collier County, requests a preliminary and permanent injunction to close operation of the outside bar and patio area. COUNT III: VIOLATION OF COLLIER COUNTY ZONING ORDINANCE Iniunctive Relief: Operation of Inside Bar 54. The Plaintiff, COLLIER COUNTY, hereby adopts and realleges all of the "General Allegations" stated herein, more specifically paragraphs I through 40. 55. Stevie Tomato's is operating its inside bar and entire establishment primarily as a drinking place after regular dining hours in direct violation of the Richland PUD (Ordinance No. 02 -07). (See Exhibit I, Photograph of inside bar area.) 56. The Richland PUD (Ordinance No. 02 -07) provides that only Eating and Drinking Places as defined by SIC Code 5812 are authorized. Agenaa Item uCTo�` r Complaint ra ^e 114 Oi`1 "b Page 10 of 12 57. SIC Code 5812 Eating Places provides, "Establishments primarily engaged in the retail sale of prepared food and drinks for on- premise or immediate consumption. Caterers and industrial and institutional food service establishments are also included in this industry." 58. By specifically excluding drinking places defined by SIC Code 5813, e.g. bars, taverns, and saloons, in the Richland PUD (Ordinance No. 02 -07), drinking places are strictly prohibited. 59. The drinking activities held at the inside bar and entire establishment, open until 2:00 a.m., are disruptive and harassing to the Pebblebrooke residents. Rowdy patrons create noise and disturbances outside when leaving the bar at 2:00 a.m. and later. 60. Drink specials and drinking events that start as late as 10:00 pm. and last until closing at 2:00 a.m. clearly show that for much of the time, especially evening hours, the primary use of the establishment is a drinking place as defined by SIC Code 5813. 61. Collier County and the Pebblebrooke residents have no adequate remedy at law. The use and value of these private homes has been adversely affected. 62. By acting in violation of the PUD zoning ordinance, Stevie Tomato's is causing unnecessary and irreparable harm to Collier County and the Pebblebrooke residents. 63. Unless Stevie Tomato's is permanently enjoined from operating a drinking place, the continued activities of Stevie Tomato's will result in irreparable injury to the public. WHEREFORE, Plaintiff, Collier County, requests a preliminary and permanent injunction to close operation of the drinking activities at the inside bar after traditional dining hours. COUNT IV: ABATEMENT OF NUISANCE 64. The Plaintiff, COLLIER COUNTY, hereby adopts and realleges all of the "General Allegations" stated herein, more specifically paragraphs I through 40. 65. Stevie Tomato's operating as a drinking place or bar, in violation of the zoning ordinance, constitutes a public nuisance. 66. The constant and offensive noise from patrons in the outside bar area and parking lot is a serious annoyance, concem and inconvenience to Collier County and the Pebblebrooke residents Agenda Item No. 12C October 14, 2 008 Page 115 of 116 Complaint Page 11 of 12 that continues past the time the bar closes at 2:00 a.m. and later in the parking lot and surrounding area. 67. In the outdoor sports bar, during televised sporting events, patrons yell and cheer in support of their team and often shout obscenities in reaction to the sporting events. 68. In the parking lot at night, and after the 2:00 a.m. closing time, patrons are talking loud, shouting obscenities and generally "carrying -on" in a loud and unruly manner. 69. The patrons' rowdy behavior at both the inside and outside bar, in addition to the parking lot, has required the Collier County Sheriffs Office to be called to this location on numerous occasions. (See Exhibit E, supra). 70. All of the noise, produced from the outdoor bar and sports bar in general, is clearly and easily heard by the neighbors in the Pebblebrooke residential community. 71. This noise and commotion annoys, inconveniences, and concerns the neighbors in the Pebblebrooke residential community. 72. The severity of the nuisance threatens to injure the public health, specifically those Pebblebrooke residents directly affected by the nuisance. 73. In operating as a drinking place, rather than an eating place, in violation of the Richland PUD (Ordinance 02 -07), Stevie Tomato's is maintaining a nuisance in violation of the county zoning ordinance. 74. COLLIER COUNTY has no adequate remedy at law to abate this nuisance. WHEREFORE, the Plaintiff, Collier County, requests a preliminary and permanent injunction and that this nuisance be abated. PRAYER FOR RELIEF WHEREFORE, Plaintiff, Collier County, asks for judgment under each Count as requested above, together with legal fees, court costs, and any other equitable relief against the Defendants, PEBBLE PAGE INC. and DAD DEVELOPMENT CORP., and further demands trial by jury on all issues so triable. Complaint Page 12 of 12 DATED this —d' day of March, 2008. 08 -CDS- 0040!11 Kgend'a Itern Cvlo. Goober 14; t08 Page 115 of 1 15 Jeffre t/A. Klat ow Floridly Bar No 25 Chief Assistant ounty Attorney Colleen M. Greene Florida Bar No. 502650 Assistant County Attorney 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, FL 34112 (239) 252 -8400 - Telephone (239) 252 -6300 - Facsimile