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CCPC Minutes 09/21/2006 LDC S September 21, 2006 TRANSCRIPT OF THE LDC MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida September 21, 2006 LET IT BE REMEMBERED, that the Collier County Planning Commission in and for the County of Collier, having conducted business herein, met on this date at 8:45 a.m. in SPECIAL SESSION in the Community Development Building, Horseshoe Drive, Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed Caron Tor Kolflat Paul Midney Robert Murray Brad Schiffer Russell Tuff Robert Vigliotti ALSO PRESENT: Ray Bellows, Zoning & Land Dev. Review Joseph Schmitt, Community Dev. & Env. Services Jeffrey Klatzkow, Assistant County Attorney Susan Mason, Environmental Services Catherine Fabacher, Zoning & Land Dev. Review Page 1 September 21, 2006 CHAIRMAN STRAIN: At this time, we will open the meeting that has been continued from the September -- what was that date? I was gone -- 7th, September 7th for a continuation of the LDC amendments that -- cycle one. MS. FABACHER: Second hearing. CHAIRMAN STRAIN: Well, you may call it the second hearing, but I think we've been discussing these many times. And I understand what they're supposed to be. I believe there are three issues for discussion today: One is the environmental services department's issue on the EIS that didn't get finished; another one will be the essential services issue; and the last one will be the Bayshore Drive -- Bayshore/Gateway issue. Is that correct, Ms. Fabacher? MS. FABACHER: Yes. CHAIRMAN STRAIN: Okay. And I believe we'll start with the environmental services division first. What page of our -- is there a reference that you can give all of us or somewhat on the same page? Probably not, because there's been a lot of page changes. MS. FABACHER: Yes. CHAIRMAN STRAIN: This is LDC Section 10.02.02.A.2 and A.4.h and A.7. It did appear in our old book on Page 201. Mr. Adelstein has the same or a newer document that appears on Page 145, so I'm not sure who's got what amongst this commission. MS. FABACHER: I have extra copies, if anybody needs them. CHAIRMAN STRAIN: Well, this wasn't the one that had a lot of issues, so maybe we can get our way through it. It's all yours, Susan. MS. MASON: Good morning. For the record, Susan Mason with Environmental Services Department. There's just a couple minor changes on -- let's see, it would be 2.D.V paragraph. There was some concern from the public on Page 2 September 21, 2006 petitions such as PUDs where maybe only 75 percent of the preserve had been designated, that we would require an EIS update to be done for them to come up with the remaining 25 percent or whatever portion they hadn't committed to yet. So that's where it was changed to read, the required amount of preserve area was not previously approved. Just to clarify that we wouldn't -- we haven't been requiring that, and we certainly don't want to start having to require that for that type of preserve designation. And the portion describing -- on my Page 204 where it says provide an analysis demonstrating the project will remain fully functional for its intended use after a six-inch sea rise, that -- CHAIRMAN STRAIN: Susan, you need to drop your speed about 50 percent. MS. MASON: Oh, sorry. I'm always too fast. Sorry about that. CHAIRMAN STRAIN: Let's go back to start over on the second item, the second point you were trying to make. MS. MASON: Okay. The analysis demonstrating that your project will still function after a six-inch sea level rise. That is verbatim from the Growth Management Plan. And the last portion, paragraph H, just describes if -- it's an exemption from the EIS at the time of a conventional rezone if they're not proposing any site plan as part of that rezone. In many cases with a straight or conventional rezone, they don't come out with any detail, and we wouldn't require it at that point, unless it's areas of environmental sensitivity that really needs to be dealt with at that time. CHAIRMAN STRAIN: Okay. Are there any questions from the planning commission? (No response.) CHAIRMAN STRAIN: I have one, Susan. In the original text -- and the reason for the change, and I want to understand it, because -- Page 3 September 21, 2006 to eliminate the need for an EIS for proj ects where it was more appropriate to postpone the assessment to a later process. Does that mean that an EIS would not be required at a PUD level, it would be required, say, at an SDP level? Is that where you're trying to go? MS. MASON: No. At PUD rezone, that is where most of the preserves are required. I'm not sure which -- CHAIRMAN STRAIN: My notes are off of the original document, only because there's been so many follow-ups, and I'm not sure which one we're using today. Maybe I could have a copy of the one we're using today, and any questions -- MS. MASON: The update that you should be seeing today should say -- the most recent version is September 6th, 2006. MS. FABACHER: September 1. MS. MASON: September 1. COMMISSIONER TUFF: That still says what you said. CHAIRMAN STRAIN: I'm trying to -- and I don't know how the reasoning that I'm referring to, and it does stay the same on Page 145, fleshes out in the language that you provided. And it says, to eliminate the need for an EIS for a project where it's more appropriate to postpone the assessment to a later process. I'm just trying to understand what that later process is. MS. MASON: That would be in the case of the rezone, where right now a straight or conventional rezone, even if they don't want to provide a site plan, the exemption would apply. They would have to do an EIS, they would have to designate preserves. And it's really not appropriate at that development, since they're not coming up with a site plan. But on PUDs there is a requirement in the LDC for a site plan, and at that point it's the appropriate time for us to evaluate it for preserves, as well as all the other required zoning or transportation issues that need to be addressed. So it's only for those type of projects where currently an EIS is Page 4 September 21, 2006 required when other details have not been worked out either. CHAIRMAN STRAIN: Which would be more conventional zonIng. MS. MASON: Right. CHAIRMAN STRAIN: The reason I want to make -- because I find the EIS is very valuable in understanding PUDs. MS. MASON: Yes. CHAIRMAN STRAIN: I want to make sure that there wasn't a loophole trying to remove that from the PUD process -- MS. MASON: No, that certainly is not the intention. It was just the paragraph at the end where it's talking about a conventional rezone and adding that exemption. CHAIRMAN STRAIN: And the other item on having -- in the changed paragraph, number one, eliminate the requirement for an environmental impact statement for changes in zoning not requiring an approval of a development plan. What is your intentions by that? And I'm just saying - for example, if we have a PUD come in and it has a -- a master plan gets approved. And I think there was one on Vanderbilt Beach that recently had this happen. They got their master plan approved, within a year they came back to us, they wanted to change the product sty Ie that they had asked for originally, they did not change their master plan. They would not have to do another EIS then for that, would they? MS. MASON: Correct. CHAIRMAN STRAIN: Okay. That's what I'm getting at. So if your master plan is retained, in essence the existing vegetation in the preserve areas would be then retained so you wouldn't require a second EIS for that -- THE COURT REPORTER: Would you please say that again slower? CHAIRMAN STRAIN: So if the master plan is approved one Page 5 September 21, 2006 time and they come back in for a text change, that doesn't affect the layout of the master plan, then the EIS is not re-required. MS. MASON: Correct. CHAIRMAN STRAIN: That's what I was getting at, okay. Thank you. That's all the questions I had. Were there any questions from any other members? (N 0 response.) CHAIRMAN STRAIN: Are there any questions from anybody in the public interested in this issue? (N 0 response.) CHAIRMAN STRAIN: Okay. Seeing none, do we have a motion to recommend approval or denial of LDC Section 2.02.02.A.2, 10.02.02.A.4.h, and 10.02.02.A.7? COMMISSIONER KOLFLAT: So moved. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'll make a recommendation for approval. CHAIRMAN STRAIN: He's made a recommendation for approval. Mr. Kolflat has seconded. I have a recommendation for approval. Is there discussion? COMMISSIONER MURRAY: I have a question. You've just read off -- on Page 145, you read off a number less than 10.0. Page 145 -- CHAIRMAN STRAIN: They should have all been 10.02.02. The first one should have been A.2, then A.4.h and then A.7. COMMISSIONER MURRAY: All right. CHAIRMAN STRAIN: You may have heard a misstate, I'm sorry. In my quest to slow down I misstate. Okay, is there any other discussion? (N 0 response.) Page 6 September 21, 2006 CHAIRMAN STRAIN: Hearing none, all those in favor of the motion, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (N 0 response.) CHAIRMAN STRAIN: Motion carries. Thank you. Next item for discussion today is the essential services LDC Section 2.01.03. Ms. Fabacher? MS. FABACHER: Just a little history. We began working on this, and I believe it was -- Chief Page was working with the committee with some other EMS and fire people to look at this amendment. And then a little bit later in the process, I think some of the other fire districts got involved. And we're supposed to be scheduled to have a couple more meetings to work the details out. But the version that you got was a result of discussion among some of the parties but not all of the parties. I'm not exactly sure where they all stand on that. But-- CHAIRMAN STRAIN: Okay, well, sometime-- MS. FABACHER: It was an attempt to -- we were requested-- staff was directed to come up with some stronger conditions that would make it, you know, almost so that if it did come into a neighborhood, you know, one of these facilities, looked at conditions to try and mitigate against any possible negative impacts, you know. Page 7 September 21, 2006 I don't want to speak for Susan but, you know, you can't always mitigate for every site, because every site's different. But I think that we're in the process of making a good faith effort to find some restrictions that ought to generically protect the adjacent property owners. And that's what you have before you today. Now, I'm going to let the various applicants speak to whatever they want to speak to. CHAIRMAN STRAIN: Okay. I meant to say something at the beginning of this meeting. We have customarily had two readings, first and second. This stuff has gone on way too long. And I'm not talking about this particular issue, but others as well. We have one coming up following this called Bayshore/Gateway issue. I would like every effort of the board to resolve these today. And if they can't be resolved today, then we can always recommend the continuance to the next cycle as not being able to be resolved today. But one way or another, this thing, we need to end it today. So my goal here is to try to get us through this today and get it on the table and a vote, whether it's up or down, by the time we get done with this discussion. So with that, are there any comments from the commissioners, or do you want to hear from the public speakers first? COMMISSIONER MURRAY: I would just comment that I met with several of the chiefs and Commissioner Rautio, and also had a discussion, and from that another iteration was formulated but not provided to the committee, because at the last meeting a decision was made not to provide any document to this commission within three days of the meeting. So that mayor may not manifest today. Okay. CHAIRMAN STRAIN: Well, I mean, Mr. Murray, there was a document sent out yesterday, so that seems to already have violated whatever agreement there seemed to have been in place. COMMISSIONER MURRAY: I recognize that. And I'm rather uncomfortable by that fact, because I was trying to perform correctly. Page 8 September 21, 2006 However, I believe that perhaps one of the chiefs in the audience might very well have something to offer. CHAIRMAN STRAIN: I wasn't here last meeting so I didn't know there was such an arrangement. Mr. Adelstein? COMMISSIONER ADELSTEIN: I had a discussion with Commissioner Rautio also -- in fact, we had two of them, and that was it. CHAIRMAN STRAIN: I don't think we have to do disclosures for this issue, so -- okay, is there any other comments from the planning commission before we hear from public speakers? (N 0 response.) CHAIRMAN STRAIN: Okay, now how many people are here to speak on this issue today? One, two speakers, three? Four? Okay. We don't have registered sign-in sheets today, but we will hear from each one of you. You're allocated five minutes' time. If you want to come up, whoever is going to speak first, please come forward and identify yourself and we'll move forward. Don't be shy. CHIEF PAGE: No problem. For the record, Jeff Page with Emergency Medical Services. I believe at the last meeting the direction was for us to get together with staff and try to make something that we could bring back to you. Staff has been very busy, we haven't had the ability to meet yet to formalize that. And I'm asking that you allow us to do that. However, if it's your decision not to allow us to meet, then I would propose that we use the -- for discussion the amendment that was provided to the board last night. CHAIRMAN STRAIN: Well, Mr. Page -- Chief Page, I'm sorry, I'd like to see us get through this. And if this isn't in a form that your group likes it to be, we could recommend it anyway, based on the form we have in front of us. You could make any corrections or changes you want when you go before the BCC, or you could Page 9 September 21, 2006 continue this to another cycle, which could give you all the time you need to probably do this a lot better. I read what was provided last night. It was one of the more sloppiest documents I've seen. So I could sit here and tear paragraph by paragraph, piece by piece apart if that's what has to be done, but I don't think we can accomplish anything more with this cycle past today. I'd like to see it end. Unless this commission has a different consensus. COMMISSIONER MURRAY: Mr. Chairman, I would be an advocate for your position on this, because I recognize in getting involved that this matter is very significant and very important and requires the coming together of all of the representatives and their opportunity to input properly. CHAIRMAN STRAIN: Okay, with that -- Mr. Schmitt? MR. SCHMITT: Mr. Chairman, just so you know, I'm under instructions from my boss, the county manager, to bring a group together and to work on this amendment. The purpose today was certainly somewhat to try and get your guidance. This started out, as Mr. Page certainly described, it was staff-initiated. Mr. Page is part of the staff. And this thing has evolved -- last meeting, as you well know, it went much further with other input. My guidance from my boss, and I'm to include both Commissioner Henning and the county manager in that meeting, is to sit down and develop language to bring before the Board of County Commissioners. Now, certainly we cannot bring anything in final until you all approve it as a board. So I'll go on your direction as well. It has to go through the planning commission. You have to deem it consistent with the compo plan before we can present it to the Board of County Commissioners, your job of course as the local planning authority. So with that, I just wanted to make sure you understand, even if we continue it, my guidance is to bring the team together and to somehow work through and develop language. Page 10 September 21, 2006 Now, that team is going to consist of most everybody that was on this e-mail and we're going to bring this back to the board October 25th. So sometime between now and October 25th, yes, we will at least have a meeting of the minds, maybe agree to disagree, or whatever, thrash or hash out this language, probably bring it back to you in final form before we bring it to the board on the 25th of October. CHAIRMAN STRAIN: I'm -- so what you're telling me is it doesn't really matter what we do here today, because you're going to come back with this regardless. MR. SCHMITT: Unless you today finalize -- we as a group agree, I mean, there's folks out here that have positions as well. If there's consensus, I think we can move forward. I still have to provide some input to my boss and Commissioner Henning, who has now weighed in on this as well on this, to make sure, at least from their perspective, they're satisfied with this. But certainly yes, your input is valuable. CHAIRMAN STRAIN: Yeah, but your final document apparently is going to be more evolved after you have this meeting with principals more involved than we are in the process, meaning the county manager, yourself, a commissioner and other members of this team. There's no telling what could come out of that meeting. It could be something totally different than what we have in front of us today. MR. SCHMITT: Yes. CHAIRMAN STRAIN: Now I'm wondering why we're even wasting our time having this scheduled today if there's no possibility of getting it resolved today. CHIEF PAGE: And Chairman, that's why I'm really requesting that you allow us to come back on the 5th, so that you see the document first. Whether you vote for it or not, I want you to be able Page 11 September 21, 2006 to see it. CHAIRMAN STRAIN: You're going to have your meeting completed with the county manager and the commissioner and the other people by the 5th of October and a new draft written and completed by then? CHIEF PAGE: I think we're very close, really. COMMISSIONER MURRAY: So do I. CHAIRMAN STRAIN: I would like to get all of our stuff done. But at the same time, I don't want to waste time going through the document that's basically going to be -- CHIEF PAGE: That's why we don't want to take your time today, we're just asking that you allow us to come back on the 5th. CHAIRMAN STRAIN: Catherine, would this be the only item left to continue? MS. FABACHER: Yes. MR. SCHMITT: Yes. COMMISSIONER MURRAY: Mr. Chairman, I would urge we continue this. CHAIRMAN STRAIN: I'm heading that direction, Mr. Murray. I'm just a little surprised, that this has been around so much. I was hoping while I was on vacation at least this would end, but it didn't. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, one thing I'd like to make sure we do is we do get together. Because every time we have a meeting, there's always somebody that says I didn't, you know, pay attention to this. Staff started this out. This should have been actually in good format when it first arrived. The last meeting Susan started taking an interest in it and asked for more time for this meeting. Nothing happened between this one. So we have to make sure something happens. CHAIRMAN STRAIN: Well, I also wondered in this larger meeting that you're going to have, you already have a date set for that? Page 12 September 21, 2006 MR. SCHMITT: I do not. We've got to coordinate calendars. I'm going to set a date and if you can make it, you can make it. If you can't, you can't. I've got to finalize this thing to get it back to you at the next scheduled meeting and get it prepared for the board. I'm sure there's folks in the audience today who know this is of importance to them, and they're going to have to set the priorities. But I've got to set a date. Now, I first apologize for the fact that you don't have a final product in front of you. I have one person who works LDC and her position was to prepare the packet for the Board of County Commissioners. And that was the most important issue on her plate. This thing had to take a second seat because of all the other ordinances that -- the amendments that had to go before the board. CHAIRMAN STRAIN: So your staff has not read the one -- has not critiqued the one that was sent to us last night? MR. SCHMITT: I've read the one that -- last night, but we've not commented on it. CHAIRMAN STRAIN: As you know, this commission has been critical of ambiguous statements, and that's why the Bayshore/Gateway has been back here 10 times and it's here again today. And we better end that one today, I hope. But the draft that I got last night was loaded with ambiguous statements that I can't see how you could enforce. So based on that, maybe as a hint that if somebody in staff could go through these kind of documents and resolve those kind of statements first, we would save a lot of times at these meetings. MR. SCHMITT: This document you have is what we received directly from, I believe -- MS. FABACHER: Commissioner Rautio. MR. SCHMITT: Commissioner Rautio and Commissioner Schiffer, who co-authored this, I believe, or participated in this. And that's the revision you have. This has not been modified at all by staff. Page 13 September 21, 2006 This is what was sent to us. COMMISSIONER SCHIFFER: But Joe, there's a lot of these revisions have been in there a while now. I mean, all of this stuff is not new information. MR. SCHMITT: I don't argue that. I agree. COMMISSIONER SCHIFFER: So the point is, I think the only additional information other than tweaking what was existing is probably the public participation and the neighborhood meeting. MR. SCHMITT: That's correct. COMMISSIONER SCHIFFER: The rest of it is stuff that we've chatted out, the staff has chatted out, everybody's comfortable with that. MR. SCHMITT: The basic premise of this is going to be whether the board wants to move forward with this as a permitted use. Then if they decide that, certainly then we will have to define the parameters. And that's the first hurdle that's got to be -- you know, got to be jumped, quite honestly, is that conditional versus permitted. This is growing simply to provide criteria that would be applied through that permitted use process. And that's what's created the evolution of this. So it's that one point, at your last meeting we got clear guidance from this board, at least my understanding, I had to leave that meeting, but you all were -- had reached consensus that you were agreeable at a certain size facility it would be a permitted use beyond a certain size, which was three bays -- COMMISSIONER ADELSTEIN: No, not at all. CHAIRMAN STRAIN: I don't think that's any consensus I've ever heard from this panel at all. In fact, that's a big bone of contention, as far as I'm concerned. MS. FABACHER: Catherine Fabacher, for the record. I think we agreed that if it was larger than a small thing, had administrative and training facilities, that it would have to remain a Page 14 September 21, 2006 conditional use. Wasn't that in the last version? CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yes. I will tell you, I've become rather intimate with a lot of these details, and that information, I believe, has come as a result of staff working with Commissioner Rautio and others. That was not clear to other chiefs, and it is not something that we as a body entertained. So that -- and it should remain open, because of the declaration of a three versus a two versus a four creates a question about the future and planning as to what facilities and equipment are needed. And I would ask also, perhaps I would have to discuss with Mr. Klatzkow, but having myself gotten involved in it, I would wish to remain so, but I know that Commissioner Schiffer is involved. And we get back to that question, if the staff is going to have a meeting with Commissioner Henning, what are the circumstances under which I can provide some help and some assistance? Am I precluded because Commissioner Schiffer will be there, or what do we have to do? CHAIRMAN STRAIN: I notice on this particular one, some of the planning commissioners got themselves involved rather deeply, and I would think it's hard to then, from this position you're in up here, to weigh in on it without having a bias one way or the other. I would hope that we would actually do just the opposite, let the staff and the people involved, the stakeholders, work up what they want to come forward with, and then us as the unbiased, impartial board review that. Although I've not seen that happen with this particular Issue. Mr. Klatzkow, I'm sure there's probably no rules that prohibit anything either way, so I imagine we're free to do what we want to do. MR. KLATZKOW: I think you have been operating well within the realm of what the Sunshine Law requires. CHAIRMAN STRAIN: Okay. But if Mr. Murray wanted to Page 15 September 21, 2006 attend a meeting that Mr. Schmitt is trying to set up with Commissioner Henning and the county manager, and Mr. Schiffer were to attend it because Mr. Schiffer's been involved, then we have a problem -- MR. KLATZKOW: You're right. CHAIRMAN STRAIN: That's what I think Mr. Schiffer's-- COMMISSIONER MURRAY: Well, I'm cognizant of that, and I would disagree with respect to the bias because, as the chair knows, he gets involved in many, many details, and he comes here and works very hard not to have a bias on these things. And I would do the same. So I think as being a good citizen and representing parts of my community to the East Naples Fire and Rescue District, as well as the other chiefs, I would be inclined to provide whatever assistance I could. I would hope not to be prohibited from doing so. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Mark, I think what it is, the commission wanted an amendment similar to this, and I think our job really is to put it together the best we can, the most predictable code we can. And it's up to the commission to decide whether they want to make it a conditional use. The reason I jumped in is I really wanted to give it a fair chance, put in there staff -- you know, code that would be predictable, code that would allow us to maybe minimize the impact of these and then pass it to the commission. It's their job to decide whether they want it to be permissible or not. CHAIRMAN STRAIN: I agree with you, Mr. Schiffer. COMMISSIONER SCHIFFER: And then we'll make a recommendation and whatever that recommendation is, the commission will decide on their own. CHAIRMAN STRAIN: I think you're 100 percent right. Mr. Schmitt, if there is such a meeting, and if any member of this planning commission is invited, I'd like to make it -- if that is the way Page 16 September 21, 2006 the thing is going to be set up, I would like it set up so that all the members of this planning commission could be invited and can attend. COMMISSIONER ADELSTEIN: That should be the way. CHAIRMAN STRAIN: So if that is now an issue that prohibits that meeting from occurring with the planning commission present, then maybe you ought to restructure the meeting so that you're dealing with Commissioner Henning and Mr. Mudd instead. MR. KLATZKOW: Or you can have a meeting in the Sunshine and you're all welcome to attend. CHAIRMAN STRAIN: That's fine. Well, it would have to be if more than one planning commissioner attends. What I'm requesting now is if one of us has a right to attend, I think we all have a right to attend. MR. SCHMITT: If that's the case, the meeting would then be scheduled as an agenda item for your next scheduled meeting. CHAIRMAN STRAIN: It's up to you. Or you could meet with Commissioner Henning and Commissioner Mudd -- or, yeah, Commissioner Mudd, ha, ha -- and County Manager Mudd on their own and come up with what that group wants and maybe go forward that way as a simpler way to approach it. MR. SCHMITT: This is a difficult issue, because, as planning commissioners, Commissioner Schiffer's participation is in some ways in a different capacity than as a planning commissioner. But that walks a fine edge. Same with Mr. Murray. Commissioner Murray, are you there as the East Naples Civic Association, or are you there as the planning commissioner? So I have to assume that you're there in your capacity as a planning commissioner. We will go with your guidance. I only ask for one thing: Are we moving in the right direction regarding permitted versus conditional? Because I want to correct that there are two commissioners who are interested in this, we have no -- I Page 1 7 September 21, 2006 cannot recall any specific guidance from the board as a board that they wanted this to be any permitted use. We have guidance from two commissioners who have expressed interest, but not as a body. So I do not have guidance specifically from that board. And you're going to see what's evolved is -- what's going to come back to you is, is this a permitted use. And beyond a certain size it will trigger into a conditional. If it's certain aspects, training facilities or otherwise, it will go through a conditional. Under a certain threshold, that's where we are right now, it will be a permitted use. CHAIRMAN STRAIN: I think the basis of the permitted use is the language that's backing up that permitted use, and that's where I have the problem. I went through this and I strongly object to the language that's in here. Now, if this is the language that dictates the permitted use, I for one on this commission can tell you flat-out I'm against it and I will continue to be against it until this language is corrected. Now, if you're going to have a meeting and come back to us with better language, there's no sense in beating this thing up here today. Why don't we just defer it to you, come back and have another meeting for the fifth time on this same issue and let's stop today's meeting on this issue, Mr. Schmitt. MR. SCHMITT: Okay. CHAIRMAN STRAIN: Is that -- Mr. Schiffer? COMMISSIONER SCHIFFER: And Mark, you've expressed-- I mean, you've equated this activity to illegal drug use so, you know, we're really not trying to put together language to get a favorable opinion of even this board. What we're trying to put together language -- is language that would really make this work and put it in the lap of the commission, and it's their decision. CHAIRMAN STRAIN: Brad, I did not equate this to drug use. I simply said you say no, just like you say no to drugs. I didn't say it was equated to drug use. September 21, 2006 COMMISSIONER SCHIFFER: You said EMS is like illegal drug use, just say no. CHAIRMAN STRAIN: No, that's not what I said, Brad. But anyway, at this point I see no reason to go forward with this one any further today. And I do agree that it can be deferred, it should be deferred. Anybody else have any objections to that? COMMISSIONER MURRAY: No. CHAIRMAN STRAIN: Anybody in the public going to have any objection to deferring this? Ms. Rautio? COMMISSIONER RAUTIO: For the record, Joyceanna "JA" Rautio, North Naples Fire District Commissioner. Thank you for the effort. I just want to concur with what you're saying. Give all of us a chance. We have five districts, we have EMS and we have the Sheriffs Department, and we're getting much closer to getting on the page. So I support the concept, withdraw what we had sent for in discussion with staff, the one that you're objecting to, and simply have a meeting that allows us to either it's a conditional use or a permitted use. If it's a permitted use, have the criteria under which we can work, and we're much closer now. And I'm willing to change my schedule to be wherever we need to be for the meeting that Administrator Schmitt is talking about. So thank you for the opportunity, one more chance to give you what you would need as a board and a planning commission to go ahead and say yes or no. Because as you know, I believe in the process. And I have several concerns about what's in the document I sent out myself. But in fairness to everyone that had worked on it, we put the information -- I took the information from an e-mail that Catherine Fabacher had put together, and we went forward. So thanks for the Page 19 September 21,2006 delay. CHAIRMAN STRAIN: Thank you. Okay. With that, we'll move on to the next item, which is the Bayshore mixed use overlay district. It has been in front of us many times before. MS. FABACHER: Chairman, I think we've already recommended approval of the rest of the Bayshore/Gateway changes. This is simply the administrative deviation process under the map (phonetic) approval. MR. WHITE: Patrick White, Porter, Wright, Morris & Arthur, here hopefully for the last time to speak to you about administrative deviation text and process. We to some degree, similar to the prior item, have as recently as yesterday and perhaps even this morning tried to find the perfect fit between the staffs version of this, what we as applicants and agents see as an appropriate level of review and approval, and in fact the third leg of the triangle will be the CRA board -- to the CRA Bayshore/Gateway advisory board as well, and their role in this. So it's been a challenge in terms of the three-sided nature of it. But I believe we're at a place where I can, with your indulgence, walk through what minor differences there are in the one remaining issue of process only that has to do with the type of appeals that would be taken from any of these determinations made at the administrative level. You were given a hard copy version on Page 7 of your packets. And what I would propose to do is to work from that and the next that you should have today, I believe, if not already distributed -- MS. FABACHER: Well, not the most recent. MR. WHITE: Okay, then it will be easy for me to take you through what the structural changes are that we're proposing to what you already have. There are no substantive changes to any of the text. And I would Page 20 September 21, 2006 just ask that if there's anything that I may not state exactly correct, that Catherine would point that out. As I'd indicated, the stuff that you have on Page 7, if you bear with me, I will go through the minor changes one by one. But suffice it to say, before I begin that, the only real change that we're talking about from what you have on these pages in your hardbound copies is to modify for each of those of the five types of requests for administrative deviation, that those instances where they reference the provisions of 5.05.08.F, that those procedures would remain in effect but for the appeals process that's set forth there. Under the 5.05.08.F text, an arbitration panel is to be established if there's a disagreement between the applicant and the staff as to what the proposed alternative architectural design would be. That process is one that we as applicants can live with. The staff believes that it's more appropriate to utilize the process that's set forth in the code of laws and ordinances in the chapter that sets forth the zoning and planning provisions. That section is 250-58, and it deals with essentially administrative appeals, or appeals from an administrative decision of one of the county officials. Like I said, we can go as far as appellate process either way. But working with the staff to address this last substantive comment that they have, we've worked through some version changes that simply by restructuring the order of the five types of deviation requests, we will be able to show you how those that make reference to 5.05.08.F would be able to utilize instead 250-58 as the appellate source. That's really the sum and substance of any difference that exists for the purposes of any discussion today. It may seem a bit more evolved than that to go through in meticulous detail. But that is more of a housekeeping measure, because in all of the versions back and forth, some text was lost, some text was added. But in the end, if we work from the stuff on Page 7, I think we'll be okay. And I believe we Page 21 September 21, 2006 can do it fairly simply. We're of course at any point able to answer any questions you may have. And-- CHAIRMAN STRAIN: Catherine, do you have a new handout? My page -- he refers to a page, my page is a different number, and I can follow it better if you did. I got one of your earlier e-mails that didn't have the page numbers on it. MR. WHITE: I'm working from what was the -- CHAIRMAN STRAIN: I've got your latest language, just doesn't have the page numbers on it that you have, so I want to make sure -- MR. WHITE: And again, I -- I apologize for the confusion. There's little that can be done under the circumstances. Obviously your staff has been working very diligently on a number of matters that were attempting to be resolved. I think we can meet your wishes today to get through this one. And if you'll bear with us, I believe we will be able to do so quickly. I would like to start, if we can, on Page 7 with your hardbound versions. And Commissioner Strain, if you can follow along on the handout from today that at the top in red says September 20th, 2006-1537. It will be a little more complicated, because the end-up version that you have in your hardbound is actually similar. CHAIRMAN STRAIN: It is, you're right. But I'd like to follow up the one that was passed out today to make sure that any changes are minor. But I want every single change fleshed out and done so we can finish this today. MR. WHITE: Absolutely. And I believe that I'm prepared to address those for you today. CHAIRMAN STRAIN: Okay, could you start with Page 7 and work your way through it, Patrick? MR. WHITE: Yes. I'll start near the top. It's about the sixth line down, the LDC section numbers themselves. I believe it's surplusage, Page 22 September 21, 2006 it's an extraneous reference to Section 9.04.08. There may be a desire in the next round to bring something in that evolves what these provisions are for more general administrative deviations, but that's a question for another day. So I think it's more appropriate to strike that. Minor housekeeping. Same for reference in the other notes and version dates that make reference to the text changes from yesterday. Substantively turning to Page 8, we readded in the text of2.03.07.I, number two, entitled applicability. The text was inadvertently left out. The hard copy version you have, your bound text, it has always been there, it has been unchanged in any of the versions you've seen previously. That was merely an oversight not to include it. We were simply making sure that it's being brought back in so that when the ordinance is prepared for this, it will be included. So there should be no questions about that. Turning to the substance of today's discussion under Arabic five, administrative deviations, small letter a, no changes; b, the same, no changes. COMMISSIONER SCHIFFER: Can we interrupt? CHAIRMAN STRAIN: Yes, go ahead. COMMISSIONER SCHIFFER: Patrick, on a, the version we got last night, there was some strike-throughs. Do you want those not struck through? What it is the sentence from the following that starts MR. WHITE: My understanding is that the staff is agreeable to using the original version that you have in your hardbounds. COMMISSIONER SCHIFFER: That we have in our what? MR. WHITE: In your hardbound copies, the ones with the green COMMISSIONER SCHIFFER: So the one we got last night -- MR. WHITE: This version here. CHAIRMAN STRAIN: That's the BCC version, not our version. Page 23 September 21, 2006 MR. WHITE: All right, but-- CHAIRMAN STRAIN: Go ahead. MS. FABACHER: For the record, Catherine Fabacher. Staffis amenable to using the one that unfortunately you just got. Not the -- staff is supporting -- MR. WHITE: They are the same in both versions. So that the September 20 -- MR. KLATZKOW: No. MR. WHITE: -- 1537 is exactly the same as-- MR. KLATZKOW: No, no, no. Excuse me, I'm sorry. I got an e-mail yesterday, and I just picked up a package over there, and there are differences between the two. And just for clarity's sake, which document do you want the planning commission to be working off of? MR. WHITE: If you have the handout from today, that would be the simplest thing to move forward from. CHAIRMAN STRAIN: And I would agree, because you are already partway through it and it's fairly easy to follow. MR. KLATZKOW: Okay. MR. WHITE: And that is the same as the prior text that you were given in all earlier versions. The same is true for capital letter B -- I'm sorry, small letter b, and then Roman I. The difference then is under the sub-paragraph numbered one parenthetical, and the only difference here is that the text should read in a way that continues to make reference to the processes and procedures of 5.05.08.F. And what we're going to do is go through and collect up all four of those types of requests that make reference to that. Then we're going to add in a new provision that says that notwithstanding all of those types of procedures under 5.05.08.F for administrative appeals to that arbitration panel I made reference to, then instead all of these Page 24 September 21, 2006 first four categories -- and I'll correct the version you have that only shows three, so that all four of those will use the 250-58 process. And that is really the gist of everything we're going to talk about. The rest of it is just housekeeping and wordsmithing. CHAIRMAN STRAIN: Patrick, I'm trying to follow you. MR. WHITE: Sure. CHAIRMAN STRAIN: The last I had heard, we were on Page 8, 5.B.i.1. MR. WHITE: Correct. CHAIRMAN STRAIN: Are we still there? MR. WHITE: Yes, sir. CHAIRMAN STRAIN: Okay. It looks to me like you've got half a dozen words in blue lettering that were added to the sentence. Is that the only change in that piece we're trying to discuss? It says in order to be eligible for an administrative deviation, the site shall meet at least one of the following conditions or circumstances. That's pretty plain and simple. Is there everything -- MR. WHITE: That's correct. The only thing that should be added -- CHAIRMAN STRAIN: Whoa, whoa. You mean you're trying to change the changes we have in front of us? MR. WHITE: That would be because the version that you received did not properly leave in the process and procedure steps of 5.05.08.F. The agreed-upon approach was to use the appellate process of 250-58 for your consideration today. But by removing the rest of the process and procedure of 5.05.08.F, you effectively also removed the criteria for evaluation and all other process steps prior to the actual appeal, if you ever needed one. So in order to make sure that there was some way to actually handle these and a criterion for their evaluation, 5.05.08.F is critical to the actual regulation in effect. CHAIRMAN STRAIN: Catherine, you raised your hand. You Page 25 September 21, 2006 don't have to identify yourself again because that takes five strokes of this lady's typing. So just simply say I'm Catherine. You can go ahead. MS. FABACHER: It might be helpful if we talked about 5.05.08.F, which is the deviations and alternate compliance. And it just talks about the review and approval procedure. Upon the request of the applicant, the county manager or designee may administratively approve a site development plan application that includes an alternative architectural design and site development plan that may be substituted, you know, for -- and then the review criteria, it gives review criteria that says designee must find that the proposed alternative plan accomplishes the purpose and intent of this section -- CHAIRMAN STRAIN: Catherine, you have to slow down. MS. FABACHER: I'm sorry. THE COURT REPORTER: Could you just read, the designee-- MS. FABACHER: The county manager or his designee must find that the proposed alternative plan accomplishes the purpose and intent of this section -- those are the architectural standards -- in the same manner as the provisions would. The next section would be submittal requirements. CHAIRMAN STRAIN: Okay. But is staff-- MS. FABACHER: My point is just to say, if you bear with me one more second, at the end of this section of how we review and so forth, it's five, appeal and assistance procedure. Now, this is what Patrick's talking about, the difference. The only thing that we want to change is instead of calling together the architectural arbitration board, which has to have five appointed members and it has to be staffed and agendas, staff didn't want to do that. So what we're talking about doing now is coming from the code of laws and ordinances, and it's the appeal to an administrative decision, which goes to the BZA, but it has a 30-day timeline. So it's Page 26 September 21,2006 not going to be like a variance that takes forever. CHAIRMAN STRAIN: Is staff in support of the recommendation? MS. FABACHER: Yes. CHAIRMAN STRAIN: Okay. So it will work for staff. The language that would read in item one, Patrick, am I to understand what language, exactly as it would read, since no copy of anything we have in front of us contains the language. Can you tell us what needs to be filled in where and can staffverify that's appropriate? MR. WHITE: It may be more difficult for me to do that verbatim for you today. And I know that we're absolutely in agreement on principle here, and I will do my best, because it is differing versions that you have in the e-mail as opposed to what you had seen in your prior hard copies. Under-- CHAIRMAN STRAIN: Well, before you go any further, I'm already, again, very discouraged. This is the second one that's happened to us today in the same manner. I did not expect this commission to have to hear these again. We've already gone beyond that by saying we'll hear them, we'll hear the fire department one agaIn. Mr. Schmitt, I don't see the need to ever come back to this commission with constant, constant changes. If this one was deferred until the time we heard the fire one again, could I get a commitment from staff and from the applicant that we would receive nothing later than one week prior to the meeting, exactly the language we're going to review, and no changes will be discussed, brought forward, brought or even hinted out at the meeting after that? I am really getting sick and tired of this. I've never seen an LDC amendment cycle like this before. MR. SCHMITT: This is a petitioner-requested amendment. And as long as I get the input from the petitioner in a timely manner, it will be distributed to you. Page 27 September 21, 2006 What I got was an e-mail yesterday. I'm just looking at an e-mail which is a different version than what I have in front of me today. I'm as frustrated as you are on this. We're responsible for providing you the information. And if I don't get a timely submittal from the applicant, this will be continued to the next meeting, because I too am frustrated. CHAIRMAN STRAIN: What I would like to do is get an agreement, as long as nobody on this panel objects to it, that we will defer this one to the same time frame that we deferred for the fire department. Under one caveat. If we don't get the paperwork in advance of our meeting -- and I don't know how many days in advance we need it, we need to discuss that, whether it be three days, five days, seven days -- then this thing is automatically either recommended for denial or pulled to the next cycle. I'm just tired of hearing this coming back before us like this. Patrick, I know it's been strenuous for you to get this together, but we have got to have some way of bringing this to finality, and this is not getting us there. MR. WHITE: Mr. Chairman, I respect the administrator's remarks. I'm not going to delve into a discussion about the substance of them. I am going to agree with this commission's desire and the staffs willingness to work together with us. We will have for you, as soon as humanly possible, a version that is identical in agreement with the staff. And all we need from direction from you today is whether essentially you believe that the process under 5.05.08.F, No.5, which is the alternative arbitration panel versus the 250-58 administrative appeal is in fact substantively something you have a preference for. And whatever your preference is what the text will then include. As applicants/agents, we have no preference. We were comfortable with the language that existed before. CHAIRMAN STRAIN: Patrick, all I wanted today was some Page 28 September 21, 2006 final language to vote upon. We couldn't get that. You can't give it to us, staff can't give it to us. MR. WHITE: That's because, Mr. Chairman, we received yesterday afternoon a version that was edited from what we provided. COMMISSIONER ADELSTEIN: By whom -- CHAIRMAN STRAIN: Patrick, I'm not trying to blame anybody. All I'm trying to say -- MR. WHITE: I just want the record to be complete. CHAIRMAN STRAIN: All I'm trying to say is we have another opportunity to have to come back anyway, get it cleaned up. If you agree with staff, then put it in there and give it back to us and then be done with it. MR. WHITE: We will. CHAIRMAN STRAIN: Don't want anymore changes at a meeting. It's not the right way to conduct business. Mr. Adelstein? COMMISSIONER ADELSTEIN: I have a request of Joe Schmitt, if it's possible. I would like to make sure that this meeting will not be held before the 1 st of October. MR. WHITE: I believe it's scheduled for the 5th. I believe it's scheduled for October 5th. COMMISSIONER ADELSTEIN: Okay. I mean -- but not before October 1st. CHAIRMAN STRAIN: I don't see how-- COMMISSIONER ADELSTEIN: It's not scheduled yet. CHAIRMAN STRAIN: No, we can't do that -- we're not going to have another meeting -- MR. SCHMITT: This will be an agenda item at your next scheduled -- CHAIRMAN STRAIN: October meeting -- COMMISSIONER ADELSTEIN: Oh-- MR. SCHMITT: -- October 5th. Page 29 September 21, 2006 MR. WHITE: If I may beg the indulgence of the commission, Mr. Chairman? CHAIRMAN STRAIN: Mr. Schiffer has something to say. Let me get his statement first. COMMISSIONER SCHIFFER: The concern I have is really with the process. There's issues in here that we never discussed. As we start to discuss it, we get into this train wreck of code and we decided to move it to the next meeting. There's issues here that I think we -- I would like to discuss. The reason I know we're not discussing them is because they keep moving them from version to version to version. So I wouldn't mind if we actually -- CHAIRMAN STRAIN: If you've got issues that you haven't brought up before that need to be -- that are in addition to what may be already changed on here, then by all means, let's get them on the table in this meeting so they can get fixed before the next meeting. So go ahead. COMMISSIONER SCHIFFER: Patrick wants to respond to the other stuff. But then I do -- I could go page by page. What happens is we never get to discuss what's going on in here because we always say we're going to come back with new words. CHAIRMAN STRAIN: I thought we already had done that the first meeting. But if we haven't -- I understand. Go ahead, Mr. Schiffer, what comments do you have? COMMISSIONER SCHIFFER: This code isn't anywhere near what we had in the first meeting either. Patrick, when this occurs -- there's been an MUP approval already, correct? MR. WHITE: Correct. COMMISSIONER SCHIFFER: Part of that process is to assure that the darn thing's going to be built according to the B overlay. So how can we then deviate that from that? Page 30 September 21, 2006 MR. WHITE: Well, you'll recall that it's a conceptual master plan that's approved. It does not have the specificity of on-ground site development plan types of detail. So it is in harmonizing and finding a way to make the otherwise existing rules with those overlays actually function on the ground. COMMISSIONER SCHIFFER: Right. And again, that will lead to my next question. But the approval of the master plan in the MUP process, it really states that a master plan has to be provided. Is that a process to approve that master plan? MR. WHITE: It approves the conceptual master plan, yes, as part of the MUP. COMMISSIONER SCHIFFER: So that plan at that time would have to show the deviations? MR. WHITE: No, it does not. It is possible if they are known and can be identified that they may, but it is not required. COMMISSIONER SCHIFFER: Okay. The lead-in to this is that these are minor deviations, yet everything in 5, which is administrative deviations, nothing really discusses minor. Is there any way that can be -- MR. WHITE: I'm not going to try to characterize what minor versus not minor means. But suffice it to say, that what we've attempted to do is follow your direction to quantify and objectify the very specific places where there are disconnects in the overlay regulations in the actual parcel sizes and shapes on the ground where projects are coming forward, and to point out how to be able to achieve the overall obj ective of those rules by getting some degree of deviation that's appropriate under the circumstances, with the criteria that you've asked us to provide consistent with either -- with all existing types of administrative deviation processes already on the books. COMMISSIONER SCHIFFER: And what you've done is you've listed what areas, which are essentially all the design standards, all the Page 3 1 September 21,2006 parking standards. You've opened up essentially everything in the overlay, yet you don't limit -- MR. WHITE: No. In fact we've been very specific from what your version was that you previously substantively commented on, and gone, rather than looking for things across the board in the LDC and in the overlay regulations, to five very specific points. COMMISSIONER SCHIFFER: Correct. Which are -- let me make sure I'm saying them. One is the front yard. MR. WHITE: And build-to line, yes. COMMISSIONER SCHIFFER: And you have two conditions where that will occur. One is that if there's utilities in the front yard, which we all agree makes a lot of sense to not encroach on those. And then the other one is this parcel configuration. MR. WHITE: Correct. COMMISSIONER SCHIFFER: Which Michael was going to get back to us and explain how he actually came up with that equation. When I studied the equation, it's -- I mean, essen -- well, Michael's not here, so I'm not going to drill you on that. The other circumstance is the building design, architectural design, architectural design, essentially all the geometry instructions of the deviation, correct? It's number II. MR. WHITE: I'm not sure I know what you mean by geometry, but -- COMMISSIONER SCHIFFER: Well, the shape of the building, the location of the building, the design of the building. MR. WHITE: Only to the extent of what is set forth in the cited provision can any deviation be sought. COMMISSIONER SCHIFFER: The next one is the parking standards. They're up for grabs. The other one is design of awnings, loading docks and stuff which is -- MR. WHITE: Mostly dumpster enclosures. COMMISSIONER SCHIFFER: Correct. And then the other one Page 32 September 21, 2006 is the landscaping. MR. WHITE: Correct. COMMISSIONER SCHIFFER: So what's not up for grabs in the overlay? MR. WHITE: All of the rest of Table 11, which is substantial. And the -- COMMISSIONER SCHIFFER: Now wait a minute, II brings in all of Table 11. MR. WHITE: No, I believe it does not. In fact, one of the differences in the versions we have is our concern is that it would appear to try to do so, when in fact it is specifically limited to the building design aspect of that table, not the rest of all of the other headaches that exist under Table 11. And I think that staff concurs with that. I note for the record, Catherine's nodding her head yes. COMMISSIONER SCHIFFER: The reference to 4.02.16.A, Table 11, Table 11 actually isn't under A, it's under D. Do you think that should be changed? MR. WHITE: Those are some of the housekeeping things that, you know, we both need to look at to make sure we have what would be essentially ordinance-ready text that would seamlessly fit with the existing LDC. So that when the county attorney's office gives it, it's going to go through seamlessly. But I appreciate you pointing that out. And I do want to thank Commissioner Murray for his point about the ratio. And you will note that we did remove the percentage sign. COMMISSIONER SCHIFFER: I'm looking at Table 11 now. It's all design standards. It's nothing else in Table 11 that would -- CHAIRMAN STRAIN: Patrick, if you're not looking to change all of Table 11, and it's not clear to some members of the planning commission if that is the case, could you specify in a further refinement of this document specifically what lines in Table 11 Page 33 September 21, 2006 you're trying to -- MR. WHITE: The specific line would be building design. CHAIRMAN STRAIN: That's what it says in the document I have, but apparently that may mean something more to others. So in order to sew that as tight as it needs to be, is there a way to define it further? COMMISSIONER SCHIFFER: Let me say, that is the title of the table, Building Design. Everything in that table is building design, there's nothing not building design in that table. And the concern I have is back to the minor deviation. There's nothing in this that references how minor a deviation can be or how major it can be. MR. WHITE: They obviously must fall within the scope, those five and half, five areas. And if the only area where that may not seem to be clear is with respect to what the words building design mean, then I believe we can work with you and the staff and come to some agreement on limits of what may be sought as a type of administrative deviation. COMMISSIONER SCHIFFER: For example, the overlay has a requirement to build the streets scene -- am I not supposed to be talking that long? Okay. To be building a street scene. Would this allow you to not do that? For example, would this allow you to put the parking in front of the building? MR. WHITE: I do not believe so. COMMISSIONER SCHIFFER: Catherine, you see where I'm coming from -- MR. WHITE: Unless the parking regulations could otherwise-- COMMISSIONER SCHIFFER: You know, this is -- minor administrative deviations is in the intro, but there's nothing in here that says minor. So let's pretend we're all gone, it's five years from now, totally new people. How would they know that you couldn't essentially change everything? Page 34 September 21, 2006 MS. FABACHER: Well, Commissioner, hopefully in five years these will have disappeared because we'll have worked all the bugs out in the overlays. At this point -- MR. WHITE: In fact, you'll recall that was the intent of how we were looking to propose at one point that we work through these things once there have been some real world examples that come forward. So that the actual regulations themselves would be amended and we would diminish the necessity for administrative deviations over time. CHAIRMAN STRAIN: Brad, Donna's got a couple of questions, if you're going to pause for a moment. COMMISSIONER CARON: Well, I think there's no discussion of minor deviations here because of the deviation process that we have that gives the staff the right to change almost a quarter of every project as an administrative after-the-fact variance. So, you know, I brought this up many times before, that I don't think that our deviation process is a minor deviation process, and that we should change that. However, I've not gained any support for that. So what you're going to see is what happens, for example, with the MUP that went before the BCC the other day and got approval. They were asked on a couple of occasions if there were any deviations from the overlay. And the answer, of course, was no. Until they decided that they want all five of these deviations and they were administratively granted by staff. And there's been no public hearing, no public airing of these things. And I have a real issue and a real problem with this. MR. WHITE: I'm not going to comment on the correctness or not of your statement. I did not attend that hearing. My understanding, however, is that the answer to the question was that there would be deviations required. And if there's anyone here who can further that, I'd ask that if they would like to do so, that they do. But suffice it to say, I understand what your concern is. I realize that Page 35 September 21,2006 it's a policy and to some extent a philosophical issue. But the goal here is to be able to effectively implement a set of administrative processes. Whether they're characterized as minor or otherwise, I'll leave to others. But to tightly define very specific ways where we've identified that real world proj ects, including the ones that pertain to the county's own lands that they're proposing to develop and have purchased, would not otherwise be able to come forward as mixed use projects. COMMISSIONER CARON: And here's my point, Mr. White. You already know right now that there are issues and problems, so these do not have to come up after the fact. They can come up in the hearing process as opposed to an administrative deviation after the fact. And in 90 percent of the cases, with the exception probably which I've already conceded, that parking standards may have to change depending on what actually goes into a mixed use project. But if there are site problems, for example, the build-back line, you already know -- you know that ahead of time. You don't need that as an after-the-fact variation. That should be stated up front to everybody -- MR. WHITE: I don't disagree with you that there may be already existing applications that are far enough along where those things are known. The point here was to work with the CRA advisory board, with the county staff, and to the degree that we had already garnered factual know ledge to develop a process that would harmonize what are effectively holes or unanticipated circumstances in the existing overlay regulations so that the goal of actually building and redeveloping land could be achieved. I understand your concern, but the issue about whether or not those types of things should be part of the MUP approval process is one that the board has effectively decided. When they approved these rules, they effectively approved them under the structure that now Page 36 September 21,2006 exists. As I said before, there may be circumstances where if they're known early enough on and a property owner and agent are able to bring those facts into part of the conceptual master plan, then maybe that is something that staff would be willing to review. But the concern we've heard -- because remember, this is a three-sided process -- is that staff did not want to have to replicate at the conceptual master plan in front of the BCC a discussion about the details of what effectively are things that always occur at the administrative level under site development planning. And to go back to Commissioner Schiffer's point, I'm not looking to characterize the distinction between these as minor or something else, but rather to tightly define, to give predictability and consistency, as you mentioned before about the firematic regulations, so that not only the staff knows what to do but the applicants know what to do, and everybody in the public will have an appreciation of what the proj ect will be able to do from a conceptual point of view that otherwise fits within the rules when it goes through for administrative review and approval. I hope that helps. CHAIRMAN STRAIN: Commissioner Schiffer wanted to continue. COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: What I'd like to do, Brad, is for you to get all your issues that you have with the remaining language on the table today, so if there is a chance of this coming back for final discussion, it gets over and done with. COMMISSIONER SCHIFFER: And again, I think my concern -- and it's really kind of redundant because if you get to the mixed use approval, which essentially was a way to patch the problem of not being able to actually use the overlay we have, you have to assure -- and especially if you're getting additional units, you have to assure Page 37 September 21, 2006 that you're going to build it according to the overlay. And then my concern is that when I read this, I see no limits as to what the change is in the overlay, unless you can point that out. MR. WHITE: Yes, sir, I think I can. I've brought with me the already approved and adopted text that's part of the LDC, brought in through Ordinance 06-08, which has the Table 11 in it as essentially the now effective regulations. The subsection that was mentioned is correctly identified as capital letter A. And the table itself is not identified or entitled as building design. It in fact says Table 11, design standards for the BMUD neighborhood commercial subdistrict. So again geographically we find ourselves constrained to just the NC subdistrict that we're asking for deviations from, or it is possible to ask for deviations from. The small letter i provision that we've been talking about, the first of the five, is set forth as front yard build-to line. And there are specific provisions set forth in the table. Similarly, there is a heading for building design, as referenced under small letter ii that you've mentioned you were concerned was a more broad set of issues, including, I think, the word was geometry. I can read you, it's a one-sentence provision, and it deals mostly with building facades. CHAIRMAN STRAIN: Is that the only provision you're suggesting the deviation be applied to on that table? MR. WHITE: Under the three of those identified in the small letter ii, yes. CHAIRMAN STRAIN: So that's limited then to that, is what you're trying to say? MR. WHITE: Yes. In reference to 4.2.16.A, Table 11, building design, specifically limited to building facades facing the intersecting east-west streets with Bayshore, having the same architectural design treatment as the building facade facing Bayshore Drive. It is a very, Page 38 September 21, 2006 very specific provision in terms of site planning. CHAIRMAN STRAIN: Brad, is that -- are you following that? COMMISSIONER SCHIFFER: Well, I printed out the ordinance last night. You're right, it isn't in the Municode. It is an ordinance. So mine says 4.02.16. A is just a letter of introduction. Isn't that right, Patrick? MR. WHITE: A specifically references dimensional standards. And then it references Table 11. COMMISSIONER SCHIFFER: I got a Municode and I got it out of -- MR. KLATZKOW: That's nine months past-- COMMISSIONER SCHIFFER: No, but it's -- I got it under the supplemental. In other words, I know it's not in the body of the code. CHAIRMAN STRAIN: I'll tell you what-- MR. WHITE: I'll be happy to have a conversation with you about it. I don't want to unnecessarily take up the time, Commissioners, Mr. Chairman, but-- CHAIRMAN STRAIN: Another suggestion might be, I think it's hard for all of us when we read any of these references that you have in here to the things you want to change, to know -- and we would do what Brad would have done, I would have gone to Municode, pull up 4.02.16.A, Table 11, design, building design, and if I didn't find it exactly worded here, I'd say wow, this applies to a lot more than maybe what I would think. I think his argument is understandable. As a backup to your next draft, couldn't you attach the references you have in this document as a backup so we can all look at it and know -- MR. WHITE: I don't want to take credit for being prescient, but when we last addressed you, those very sections were attached and provided for everyone's review. I know you were physically absent. I can easily give you those same sections of the LDC so that everyone has them. Page 39 September 21, 2006 CHAIRMAN STRAIN: I would like those for my use then for the next meeting, because I think they would be invaluable in making sure we're all reading -- MR. WHITE: If it's the Commissioners' desire, we'll re-provide those along with the final draft. CHAIRMAN STRAIN: I'm trying to slow down. I'm sorry. THE COURT REPORTER: Thank you. CHAIRMAN STRAIN: I keep looking over at you and thinking oh, boy, you're talking too fast again. Mr. Schiffer, did you want to move through some more issues then? COMMISSIONER SCHIFFER: I'm still confused. In other words, so ii, what that means is, and let's not argue the references, that the areas in which you can -- it's one of the five. So the table, Building Design, is something you can deviate from. The whole table, right? MR. WHITE: No, sir, there's one specific aspect of that table labeled Building Design that refers only to the building facades at the intersection I just read, at the corners of Bayshore and -- I'm sorry, the buildings facing Bayshore. CHAIRMAN STRAIN: Brad, would it be productive for you to walk through the handout on your own that Patrick gave out last time to understand the references he made? COMMISSIONER SCHIFFER: The handout he gave last time was only part of the chart. That's the problem I'm having. The rest -- I mean, the - CHAIRMAN STRAIN: Where's the rest of the chart? COMMISSIONER SCHIFFER: The rest of the chart's in my hand from off the Internet last night. So what you're saying is that item two means Table 11, Building Design, architectural design theme -- MR. WHITE: Yes. COMMISSIONER SCHIFFER: -- and architectural -- that's the Page 40 September 21, 2006 only thing that applies? MR. WHITE: That's correct. And what would be -- COMMISSIONER SCHIFFER: It's not the whole thing? MR. WHITE: Not the whole thing of what, sir? COMMISSIONER SCHIFFER: Since we're going to have to come back, if you would lead it where I can open up the discussion again, I'll wait and maybe this can be explained to me. To me, I think we can put a semi colon that means that, and then the thing means the thing after, and then it means the thing after that. If that's not the case, if what you're saying is you're filtering it down through three steps, no. CHAIRMAN STRAIN: Even further, I hate to get into more paperwork, but if you were to take ii and convert it to another sub-A, 4.02.16, Table 11, building design, semi colon, and then define the actual piece of that table you're addressing in this section, there would be no doubt what you're trying to say is a minor issue, or a major, whatever it is. MR. WHITE: I guess we can repeat the text that's in the table, if you all care to. CHAIRMAN STRAIN: I think to get through this you may have to. That might be the simplest way to get through it, because then we all are reading on the same page. MR. WHITE: If staff has no objection, I'm seeing no reason why we can't. CHAIRMAN STRAIN: Okay. Why don't we try to get there that way. And that way we've all got something that we're all reading -- familiar with and in front of us -- MR. SCHMITT: As long as I get a final version for distribution sometime before the end of -- the close of business Monday so I can send it to you. CHAIRMAN STRAIN: We're going to talk about timing as soon as we finish discussion. Because we're not going to have any more Page 41 September 21, 2006 handouts at our meetings. This isn't going to work. Mr. Schiffer, you want to continue, if there is any? COMMISSIONER SCHIFFER: Patrick, would you repeat again the ordinance that you got that off of? MR. WHITE: It was 06-08. And I'll be happy to show you now or after the meeting -- COMMISSIONER SCHIFFER: Mine was a 2005, so there might be something that -- MR. WHITE: Yeah, 06-08 is the currently effective BMUD regulation, other than what we're talking about in this matter. COMMISSIONER SCHIFFER: I guess the only thing is, since Michael's not here I won't -- is how he came up with that 005. So he can give me a call on that before the next meeting. MR. WHITE: He would have been here today but for -- he's the more ill of the two of us, so -- CHAIRMAN STRAIN: I think it would be advantageous to get that resolved before the next meeting. Mr. Schiffer, is that -- COMMISSIONER SCHIFFER: My only other comment is I kind of believe what Donna said is true. If this process is going to have deviations, it probably would be wise to have those deviations prior to the -- or in front of the commission so that they would accept those deviations. Because right now the way it is, it's totally staff that has to approve the deviations, and the only way it gets before the public is if you don't like staffs decision and then you appeal it to the commISSIon. MR. WHITE: That would be no different than what are already the existing processes and procedures for those provisions we are cross-referencing and otherwise agreeing to follow in their entirety but for the most recent staffs suggestion of following 250-58 as to an appellate process where there is such a disagreement. Otherwise, we are following what are already adopted existing LDC revisions for this Page 42 September 21, 2006 type of relief where there are disconnects in terms of site planning. I understand your concept. I would look to the staff if they have a concern about it. I know from the applicant's perspective there's added time and money moving from just a conceptual master plan that shows building footprints, massing, those kinds of things, already part of the conceptual master plan, down to the fine details of site planning. They're always administrative. CHAIRMAN STRAIN: Mr. Schiffer, then Ms. Caron. COMMISSIONER SCHIFFER: The process you reference in that last statement would be architectural deviation standards, correct? MR. WHITE: Yes, sir. COMMISSIONER SCHIFFER: Which I'm not sure is a good place to go for overlays, but -- CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I mean, even moving on beyond Table 11, if you move to the next deviation that's sought, which is 4.02.16.G, which is architectural design theme, one of the major points of the overlay was to have Old Florida cracker style development in this area, and you're going to be able to have deviations from that, and, you know, suddenly go to Mediterranean or something or whatever. Because you've just exempted yourself here. MR. WHITE: No, I would not characterize it as an exemption, Commissioner. It is, again, something that's going to have to meet those criteria. It is going to be reviewed and vetted by the staff. And so unless it is otherwise somehow demonstrated further and be consistent with the Bayshore overlay guidelines -- excuse me, regulations, it won't be approved. CHAIRMAN STRAIN: Ms. Fabacher, did you have a comment? MS. FABACHER: I just wanted to say that Patrick's right, most of these processes already exist. For your dumpster, he references an existing administrative deviation process that's already in the code. F or your awnings and loading docks, for your landscaping, they Page 43 September 21, 2006 already exist. Staff already has that power. And he's being very specific in referencing things that are already in the code and have criteria. 5.05.08.F is already in the code and staff already has the ability to do this. The only thing that's confusing I think is the fact that staff has said we're willing to follow that process except for the appeal, which we said was to call an architectural arbitration board together and staff it and agendas and meetings and minutes. We opted for the appeal process from an administrative decision that's in the code of law and ordinances. And that requires a 30-day time line to get before the BZA and get approval. It's not the long deal that a variance is. And that's when it would see daylight at the hearing. These powers aren't any broader than what already exist now. CHAIRMAN STRAIN: The process that you're recommending would actually take it more in front of the public than the process that's in place now, because you don't have the architectural board to go before, you have to go back before the BZA for the deviation. MS. FABACHER: Yes. CHAIRMAN STRAIN: Mr. Schiffer-- MR. WHITE: As you'll recall-- COMMISSIONER SCHIFFER: I don't think she gave you -- Catherine, what Mark just said is that since there is no architectural board now, it would go to the BZA. But that's not true. The architectural board would be formed for that meeting. MS. FABACHER: It would have to be. COMMISSIONER SCHIFFER: Right. So it isn't -- MS. FABACHER: We've never had to use it before, but we may have to use it and we don't want to have to use it. CHAIRMAN STRAIN: What I think they're saying, though, Brad, is that in lieu of going before that board, it go to the BZA. What I was trying to say is if it went before the architectural board, it wouldn't be a public hearing process like the BZA. So that's actually a Page 44 September 21, 2006 more improved process for the public to participate in, not a less of one. Mr. Murray, you had a comment? COMMISSIONER MURRAY: Just to help me a little bit. As much as this is within a CRA, is it the BZA or is it the CRA board that they go -- MS. FABACHER: The BZA. COMMISSIONER MURRAY: The BZA. Thank you. MS. FABACHER: And if I might say one more thing. We really worked hard with the CRA Advisory Board to make a process that is to facilitate a more rapid process to be another incentive to redevelop in that community redevelopment area. This is not applying to any mixed use anywhere at this point, it's just that redevelopment area and to help expedite the process for them. COMMISSIONER SCHIFFER: Catherine, just one last thing to be comfortable. Are you comfortable that in fact the concept of a minor change is in the actual text of the deviation? It's in the reasoning, but that doesn't follow it after we make it in the code. MS. FABACHER: I'm very comfortable with what's already in the code, okay. And in the beginning staff was somewhat concerned, and we had written text to say that if the county manager or designee feels that the request is beyond the scope of this process, then they could move it to the BZA was what we originally said in the text. And I think, at least I know with this zoning director -- MR. WHITE: Could I attempt to offer what I may not be qualified to say is the distinction between minor and major, but simply point out some other things that are in Table 11 that to me as a seated board of county commissioner or a staff member I think might go towards the concerns about what's major. And those are things such as maximum residential density, building height, minimum floor area, maximum building. Those are things that are not being sought for any type of administrative deviation. Page 45 September 21, 2006 And I think when you look at what is being requested, these are very tightly constrained under existing processes, and ones that I think are absolutely essential to the possibility of these projects seeing the light of day. CHAIRMAN STRAIN: Patrick, I think we're at a point now where we can wrap it up as far as any more comments go and try to get this to a more productive level at the next meeting. As much as I hate to see that happen, I don't know any way around it. MR. WHITE: I'd like to say that I think today has been productive for us as drafters working with staff. And if there are other additional comments that any of the other commissioners have, I certainly want to make sure that they have an opportunity to provide them today. Because we do want to give you a complete and timely verSIon. CHAIRMAN STRAIN: I think this is going to be, basically from what I'm hearing from staff, is the October 5th meeting will have this tacked onto the end of it. Is that the intent extent from what staffs -- MS. FABACHER: (Nods.) CHAIRMAN STRAIN: Okay. With that in mind, Patrick, how much time in advance of that meeting can you have your notes to staff? We need commitments. Your changes, and then staff needs to respond back to us within a time frame prior to that meeting. I'd like to get it down so it's known today. MR. WHITE: I believe we can have those no later than noon tomorrow. We will make every effort we can to have them done by close of business today. But since I obviously cannot talk with the other person who has assisted in this process, that being Mr. Fernandez, the best I can do is commit to tomorrow at noon. We'll continue to work with staff at any point in time as we have up until now. CHAIRMAN STRAIN: How long does staff need to review it Page 46 September 21, 2006 and prepare it and get it to us? How many days do you need? MR. SCHMITT: I've got to get it out Monday, right? MS. FABACHER: Susan's saying maybe Thursday or Friday next week. Don't forget, we've got to meet with the fire people too. CHAIRMAN STRAIN: I know that. And our next meeting is on the 5th of October. All I'm trying to get to is if you need a week to do your thing and the 5th of October is two weeks from today. Patrick needs a day or two. Is there a reason -- can we expect our completed package on this issue to be in our hands not bye-mail but by hard copy by the second of October? That's a Monday, and our meeting is on a Thursday . We only have to read two items, the fire and this. Can everybody on this panel work with that much advance notice? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: You okay? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yes, sir. COMMISSIONER ADELSTEIN: Remember, we have five PUDs at that meeting. CHAIRMAN STRAIN: I know, but that's -- I know it. I know what we've got going. But I -- can you get to us with a completed package by no later than October 2nd? MS. F ABACHER: Yes. MR. SCHMITT: Now, your other packets will be -- fire can come out earlier. CHAIRMAN STRAIN: Right, that will give us time over the weekend to review those. MR. SCHMITT: That's what we -- we're meeting on four or five land use petitions on that day as well. CHAIRMAN STRAIN: I understand that. But our typical packet would come out the week prior to our meeting, and that means we'd have that weekend to get through the typical packet. And then Page 47 September 21, 2006 we could have these. We'd have three or four days just to look at five pages or whatever number of pages it's gong to be. Does that work? Okay. MR. WHITE: One other process timing issue. I'm aware that you do have other previously scheduled advertised items for the 5th. My personal schedule has me leaving town that afternoon. If it's at all possible, and there are essentially agreements from the staff and us as to text, and if there are any issues that are identified that we have not been able to resolve from any of the commissioners, because we're certainly willing to work with and answer any questions you may have before the meeting on an individual basis, that we might possibly be considered to be heard a little earlier in the agenda. CHAIRMAN STRAIN: I was just thinking, with the fire people that day, too, I hate to see all the fire chiefs sitting in this audience when they should be out doing other things for the public besides sitting here. Might we look at doing the LDC amendments at 8:30 on the 5th, get those cleaned up and on the way and get the people interested out of the way, and then move into the public hearings for the developers after that? MR. WHITE: That would be very greatly appreciated. MR. SCHMITT: That would be my recommendation. CHAIRMAN STRAIN: Okay. Then let's proceed on the 5th from that schedule and go from there. MR. WHITE: Thank you for your indulgence today. It truly is helpful. I know it's difficult, and it may be just reflective of how difficult it has been overall for the regulations in the BMUD to come forward in a vibrant and vital manner. CHAIRMAN STRAIN: Just do one thing, Patrick, please don't walk in here with anymore paperwork on the 5th. Make sure it's to us on the 2nd. Okay, any other comments from this commission? Ifnot, we will call this meeting continued until the 5th of October at 8:30 in the Page 48 September 21, 2006 morning at the Board of County Commissioners chambers. Thank you. Meeting is adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10: 15 a.m. COLLIER COUNTY PLANNING COMMISSION MARK P. STRAIN, Chairman Page 49