Loading...
CCPC Minutes 07/02/2020July 2, 2020 Page 1 of 59 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, July 2, 2020 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 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: Edwin Fryer, Chairman Karen Homiak, Vice Chair Karl Fry Joe Schmitt Paul Shea (remotely) ABSENT: Patrick Dearborn Tom Eastman, Collier County School Board Representative ALSO PRESENT: Raymond V. Bellows, Zoning Manager Jeffrey Klatzkow, County Attorney Heidi Ashton-Cicko, Managing Assistant County Attorney July 2, 2020 Page 2 of 59 P R O C E E D I N G S CHAIRMAN FRYER: Welcome to the July 2, 2020, meeting of the Planning Commission. Would everyone please rise for the Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN FRYER: Will the secretary please call the role. COMMISSIONER FRY: Mr. Eastman? (No response.) COMMISSIONER FRY: I'm here. Chairman Fryer? CHAIRMAN FRYER: Here. COMMISSIONER FRY: Vice Chair Homiak? COMMISSIONER HOMIAK: Here. COMMISSIONER FRY: Mr. Schmitt? COMMISSIONER SCHMITT: Present. COMMISSIONER FRY: Mr. Dearborn? (No response.) COMMISSIONER FRY: Mr. Shea, remote? COMMISSIONER SHEA: Present. COMMISSIONER FRY: Mr. Chairman, we have a quorum of five. CHAIRMAN FRYER: Thank you, sir. Quick question for the County Attorney, if I may. MR. KLATZKOW: Sir. CHAIRMAN FRYER: Did the Governor's order expire June 30 about quorums? I don't think it's going to be a problem. MR. KLATZKOW: It was extended. CHAIRMAN FRYER: Extended. Okay. MR. KLATZKOW: Yes, sir. CHAIRMAN FRYER: Very good. Thank you very much. Addenda to the agenda. Ray. MR. BELLOWS: I have no changes. CHAIRMAN FRYER: Okay. Thank you very much. Planning Commission absences. We've got two meetings coming up that I want to ask about. July 16 and then August 6th. Does anyone know that they will not be able to be here on July 16? COMMISSIONER FRY: Yes, sir. July 16th I will not be here. CHAIRMAN FRYER: Okay. If you're the only one, we should still, then, have a quorum. Who will call the role? COMMISSIONER FRY: Boy, that's a question for the ages. I don't know. MR. KLATZKOW: Eeny, meeny, miny, moe. CHAIRMAN FRYER: Okay. And August 6th, 2020, does anyone know whether they will be here or not? (No response.) CHAIRMAN FRYER: All right. So we should have a quorum for both of those meetings. Approval of the minutes. We were mailed -- emailed minutes for June 11 and June 16, 2020, meetings. With respect to June 11, does anyone have any changes, corrections, additions, et cetera? (No response.) CHAIRMAN FRYER: If not, I'd entertain a motion to approve. COMMISSIONER HOMIAK: Motion to approve. CHAIRMAN FRYER: Is there a second? COMMISSIONER SCHMITT: Second. July 2, 2020 Page 3 of 59 CHAIRMAN FRYER: All those in favor, please say aye. COMMISSIONER SHEA: Aye. COMMISSIONER FRY: Aye. CHAIMAN FRYER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. CHAIMAN FRYER: Opposed? (No response.) CHAIMAN FRYER: Approved unanimously. Then the June 16, 2020, meeting minutes. Any corrections, changes, et cetera? (No response.) CHAIRMAN FRYER: If not, a motion, please. COMMISSIONER HOMIAK: Motion to approve. CHAIRMAN FRYER: Is there a second? COMMISSIONER SCHMITT: Second. CHAIRMAN FRYER: All in favor, please say aye. COMMISSIONER SHEA: Aye. COMMISSIONER FRY: Aye. CHAIMAN FRYER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. CHAIMAN FRYER: Opposed? (No response.) CHAIMAN FRYER: Passes unanimously. Thank you. All right. Under Chairman's report, I've got a couple of things here. First of all, by your leave, Planning Commission, I'd like to -- I'd like to try out the use of this signaling light that the Board of County Commissioners uses and some other boards are also using, I've been told, as a way for members to signal their wish to speak. And it makes it a little challenging in the case of Paul Shea, who's present electronically, but I'm going to try to keep Paul in mind. And since he can't -- he can't signal electronically -- and if I forget you, Paul, I apologize in advance, but I'll try to ask you if you have anything to say after we've covered the people who light up. Then the other thing I want to announce is we need to have a hard break at noon today, if we're not already finished with the meeting, which is possible, because we need to have a court reporter change. So we're going to have a hard break at 12 noon. All right. Consent agenda. There is none. Public hearings, 9A1, first advertised -- first advertised public hearing is PL201900019 -- excuse me -- 1695. This is the Isles of Capri boat dock extension. 155 East Hilo. All those wishing to testify in this matter, please rise to be sworn in by the court reporter. COMMISSIONER FRY: Mr. Chairman? CHAIRMAN FRYER: Sir. COMMISSIONER FRY: Do we ordinarily get a County Commission meeting synopsis prior to this? CHAIRMAN FRYER: We do, and I -- I'm sorry. We do. Thank you for correcting me. COMMISSIONER FRY: Do we? CHAIRMAN FRYER: Yeah. Let's cover that first, Ray. I'm sorry. MR. BELLOWS: For the record, Ray Bellows. The Board of County Commissioners met on June 23rd. There was the Naples Senior Center on their public hearing agenda, and the applicant requested a continuance to maybe address some concerns that was raised, and it hasn't been rescheduled yet. CHAIRMAN FRYER: Thank you very much. Sorry for those who rose and sat down again. But July 2, 2020 Page 4 of 59 please rise if you wish to testify in matter and be sworn in. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN FRYER: All right. Ex parte disclosures from the Planning Commission. I'd like to start on my right, and we'll just go down, and then we'll call on Paul remotely. So start with Mr. Fry. COMMISSIONER FRY: Staff materials, emails. CHAIRMAN FRYER: Okay. In my case it's staff materials and communications with staff and also communication with the representative of the petitioner. COMMISSIONER HOMIAK: I had nothing other than what we had in emails. COMMISSIONER SCHMITT: Same. I have nothing other than what was included in our packet. CHAIRMAN FRYER: Paul? COMMISSIONER SHEA: Same. I have -- yes, just staff materials for me. CHAIRMAN FRYER: Okay. Thank you. All right. We'll begin with the applicant's presentation and ask the gentleman to please proceed. MR. ROGERS: Good morning, Commissioners. For the record, my name's Jeff Rogers representing the owner of 155 Hilo Street. Ken Wood is his name. THE COURT REPORTER: Can you speak into the mic? MR. ROGERS: There you go. Is that better? Again, Jeff Rogers with Turrell Hall representing the owner at 155 East Hilo Street, Isles of Capri, Florida. Just a quick overview. We are requesting a boat dock extension from the allowed 20 feet of 23.62 feet to an existing nonconforming dock in regards to the non-conformant. It is a grandfathered structure that was built originally in 1973 without county permits, basically. So -- or state permits, just so you guys know. And, basically, I want to run through the criteria of the application and touch on each part of it. On the primary criteria, you know, we're allowed to miss one of the five, and in this case -- I'll go through them really, really quickly and touch on them. The first one is whether or not the dock facility's appropriate with single-families. This is a single-family dock. We're allowed two boat slips and, as proposed, we only have one currently. So, technically, all single-family docks are allowed to have two boatlifts or boat slips moored along them. So that criteria is met. Number 2 is -- basically, it goes through what's driving this BDE. Is the water too shallow? Is it the vessel? In this case the reason for the BDE is we're adding an existing -- we're adding a boatlift to an existing dock. Again, the dock was built in 1973, and we have to go through the BDE process in order to install a boatlift on it and bring the dock into conformity with the county requirements. Let me go through. There's the existing dock on the screen, as you can see. It's 43.62 feet, and that's based off a certified survey, and the length of shoreline is also based off a certified survey that we have. There's the proposed dock on the screen. Number 3, whether adverse navigation -- as you guys can tell on this, there is a lot of existing docks in this area. Consistently, we are about in the same, you know, protrusion distance out into the waterway with the adjacent docking facilities. As you work your way up the screen, which is to your north, the docks do protrude less, but down on the bottom right, that 48-foot dock is also -- and the 41-foot dock were built way back in the '70s, and they're also existing. No navigational issues. Here's the width of waterway showing, you know, that there's -- there is a shoal there, and that has been, you know, raised by some questions by people on the outside, but there's no real navigational markers here. It's kind of a local-knowledge waterway. You do hug the shoreline relatively. But, again, these docks have been existing since 1973, and there's been no navigational issues so, therefore, that criteria we do meet as well. Number 4 on the primary, whether the proposed dock protrudes no more than 25 percent width of the waterway. As you can see here on this exhibit on your screen, we're about -- you know, the waterway's July 2, 2020 Page 5 of 59 710 feet wide. The navigable waterway width is 548 feet wide; however, the criteria is total waterway width. With that being said, we're about 7 percent width of the waterway as proposed. And let me stress that the proposed boatlift will not increase the overall protrusion. It will not change that. The boatlift will be inside the existing protrusion of the 43.62 feet. Number 5, whether or not the proposed location of the design of the facility is such that the facility will not interfere with neighboring docks. Basically, the dock is existing. We had to fit it in where we could in regards to the setbacks that are enforced by the county, which in this case we are under the 60-foot linear foot of shoreline so, therefore, our required setbacks are seven-and-a-half feet. We had to push the boatlift as close as we could to the shore in order to fit a maximum of a 33-foot vessel that could be moored there at any time. Now, let me stress that if we did not put this boatlift in there, a vessel could sit in the water as shown on this exhibit and still meet the required setbacks and not interfere with, you know, having to get a setback waiver or anything like that, and that would not require us to be here in front of you today with the BDE. The only reason we are here today is because of the boatlift that the owner would like to install. So that's the primary criteria. Based off that, I believe we meet all five, and that's -- staff has also reviewed that as well. Let's move on to the secondary criteria. Whether or not there's any special conditions not involving water depths related to this situation. Again, this is a grandfathered existing dock that the owners purchased the property with and are just adding a lift to, and this BDE is bringing this nonconforming dock into conformity with the county rules. Number 2 on the secondary, whether the proposed facility will allow reasonable safe access to the vessel for loading and unloading. As you guys can see here, there's plenty of deck space for loading and unloading off of the boatlift at any time and so, therefore, that criteria is met, too. Number 3 is for single-family dock facilities, whether or not the length of the vessel or vessels in combination described by the petitioner exceeds 50 percent of the subject property's linear waterfront frontage -- footage. We do not meet that. As shown here, we have 59.89 feet, and the vessel that is proposed is a 33-foot vessel so, therefore, we exceed that threshold, and that is the one criteria of the secondary that we do not meet as of now. Number 4, whether or not the proposed facility would have a major impact on the waterfront view of neighboring waterfront property owners. There is -- there has been some questions by the neighbor to our left at -- off Pago Pago. And, again, we are inside our riparian lines. I don't want to get into the weeds here with views of riparian rights, but your view is within your riparian rights, and the boat fits within the riparian rights. And there's numerous court cases out there that will back that up. So, again, if we weren't doing the boatlift, the vessel could sit there. And, technically, all these docks are in everybody's view down there. So we said, and staff agreed, that this will not impact views any because it's inside the required setbacks and is inside our riparian rights. Number 5, whether or not seagrass beds are located within 200 feet. There are no seagrasses within 200 feet that we found after we swam it. Number 6, whether or not the proposed facility is subject to the Manatee Protection Plan. This is a single-family home. We're allowed two boat slips; therefore, we meet that criteria as well. So in overview, primarily we meet all; secondary we do not meet all of them. We miss No. 3. Again, I want to stress that this dock, per this aerial, was built in 1973. This is an example of it with a boat moored along it just as we're proposing within the setback. The neighboring dock to our right, the boathouse, was there back then as well, and it's also a grandfathered structure. So I have other historical aerials to show of the area. If I need to, I can get back up and present that. But as of now, if you guys have any questions, happy to answer them. CHAIRMAN FRYER: All right. Thank you. You turned your light off or -- COMMISSIONER FRY: I turned it back on. July 2, 2020 Page 6 of 59 CHAIRMAN FRYER: Okay. We have one planning commissioner lit up, and that would be Mr. Fry. Go ahead, sir. COMMISSIONER FRY: Hey, Jeff. Is the 33-foot boat already owned by the client? MR. ROGERS: Yes, sir. COMMISSIONER FRY: Which side does the adjacent property owner above -- above the subject property, the dock to the -- above it, which side do they moor their boat on? MR. ROGERS: Honestly, I have not seen a boat moored there myself, personally. So by the looks of it, they could moor a boat on either side. There's no handrailing on it; however, you would be encroaching onto the side yard setback requirement. So, technically, a boat might not be able to be moored there overnight. COMMISSIONER FRY: Okay. I think I saw one aerial view where a boat was moored on the south -- I'll call it the lower side of that dock. So a question just about the requirements for -- of riparian rights. MR. ROGERS: Yes, sir. COMMISSIONER FRY: Is the homeowner required to enter and exit his dock fully within his own riparian rights area, meaning where those two docks converge at an angle, it seems like it might be difficult for him to come in at times fully on his side of that riparian line. Is that a legal requirement of any kind? MR. ROGERS: You're allowed to ingress/egress over other adjacent neighbors' riparian rights; however, you cannot moor the vessel within those people's setback requirements until you go through the proper process, which is why we're here today. COMMISSIONER FRY: Okay. Thank you. CHAIRMAN FRYER: Nobody else is lit up? Anything further to say, sir. MR. ROGERS: No, sir. COMMISSIONER HOMIAK: Joe's lit up. COMMISSIONER SCHMITT: I have a question -- CHAIRMAN FRYER: Yeah, go ahead, Joe. Sorry. COMMISSIONER SCHMITT: -- when the staff report comes in. Thank you. CHAIRMAN FRYER: All right. Let's hear from staff. MR. KELLY: Good morning, Commissioners. John Kelly, senior planner, for the record. This is going to be Lot 140, Isles of Capri, No. 2. As specified by the applicant, we were unable to locate any permitting information for the dock. As such, we established that it is legal nonconforming utilizing the criteria set forth in LDC Section 9.03.03.B.2.A. Again, we were able to establish that it is legal nonconforming. We're here before you today as the applicant seeks to add a boatlift to the existing dock which extends 23.62 feet beyond the 20-foot allowable protrusion, the water frontage at that location being platted at 59.89 feet, resulting in a 7.5-foot side riparian line setback. We have received two letters of objection to the project. Staff has found that the project satisfies the primary -- the bulk of the primary and the required number of secondary review criteria; however, we do differ from Mr. Rogers with one primary criteria staff found that that was not met, and that was No. 2, whether the water depth at the proposed site is so shallow the vessel of the general length, type, and draft, it cannot mean -- moor at mean low tide. But -- again, we found that criteria not to be met, so they satisfied four of the five primary criteria. We found of the secondary criteria that No. 6 is not applicable and, therefore, they satisfied four of the five remaining primary criteria. Staff, therefore, recommends the Planning Commission approve this boat dock extension in accordance with the plan attached to the resolution as Exhibit B. CHAIRMAN FRYER: Okay. Thank you, Mr. Schmitt. COMMISSIONER SCHMITT: Yes. I just note for the record on the staff report, my Page 12, Staff July 2, 2020 Page 7 of 59 Report Page 8 of 9, the appeal, it says, such appeal shall be filed with the Community Development and Environmental Services administrator within 30 days. Considering I was the last person to fill that position, and I departed staff in 2009 and that position was essentially eliminated, I think, for the record, we would have to state who they would state the appeal to. Would that be the County Manager, or would that be the Growth Management? MR. KELLY: I believe, since it was the CDES director or administrator prior, that it would be the Growth Management Division administrator. COMMISSIONER SCHMITT: Okay. I just wanted to note for the record, John. MR. KELLY: Or, I'm sorry, deputy department head, yes. CHAIRMAN FRYER: Okay. Thank you, Joe. Nobody else is lit up. So let's ask if we have any registered speakers. Ray? MR. BELLOWS: Yeah. We have one registered speaker. John Hooley. MS. SULLIVAN: Actually, we have two. MR. HOOLEY: I'll go first. MR. BELLOWS: Oh, yeah. And Chris Sullivan. CHAIRMAN FRYER: Okay. MR. HOOLEY: Well, I'm here on behalf of the Christine Sullivan. My name is John Hooley. I looked at this in order to assist her, and I'm somewhat -- I don't know how to proceed. The problem is that the seawall actually exceeds 60 feet, and everybody knows that. And so instead of using the actual survey, what they're doing is they're saying, well, the plat, which is wrong, shows that it's under 60 feet, so we get these seven-and-a-half foot setbacks. Now, I don't know. It just doesn't seem reasonable. Now, I base this on taking a look at Mr. Kelly's letter. Jeff Rogers got a letter on September 23rd, 2019, Construction Comment No. 4. If I could use the Elmo. MR. BELLOWS: I don't believe we have it functioning. Let's try it. CHAIRMAN FRYER: There we go. MR. BELLOWS: I'll get it blown up a little bit. MR. HOOLEY: So as you can see, there's a survey, and the survey says that it's 60.89 feet or 60.63 feet; 60.68 feet. So we've got a survey that shows that it's actually in excess of 60 feet, and so it was confusing to me when I looked at Turrell's and they say the platted distance on their survey, because my dealings with surveys is that somebody goes out and actually measures that. And the county knows that, too. And the county says that, look, we've got a problem here. One is that the survey shows the 60.68, and the aerial view shows over 60 feet, and the note shows over 60 feet. So I'm at a loss as to how the Commission can approve this because the setbacks are 15 feet, not seven-and-a-half. And I go, you know, is there something in the Land Development Code that says plat -- plat is good enough even though we're not dealing with reality? And the only thing that I could find was on 5.03.06, dock facility, it talks about the measurement of the dock protrusions. And then it says -- it's from the most restrictive of the following, and it talks about the seawall, and then under Subsection C.4 it says, the allowable protrusion of the facility into the waterway shall be based on the percentages described in Section 5.03.06.E.2 of this LDC as applied to the true waterway width as depicted by the survey, and then it specifically says "and not the platted canal width." So this is the only discussion of how to do the measurements in the code. And I submit that, you know, we really shouldn't be here doing imaginary widths; otherwise, why have anybody submit a survey? Why not just use the plats? So what they're trying to do is really encroach on the 15-foot setback. And now what they're saying is, yeah, but we've got this -- my client's on Pango Pango [sic], and she's oriented turning directly into -- CHAIRMAN FRYER: Pago. MR. HOOLEY: Pardon? July 2, 2020 Page 8 of 59 CHAIRMAN FRYER: Pago. MR. HOOLEY: Pago Pago. It's turned into the -- into the dock, so they're going to put this big boat there. So I would submit that if you approve this, basically, you're saying that the lot isn't 60 feet wide. And as the county noted, you really need -- it's -- you really need another -- you really need another request for a variance for the seven-and-a-half-foot-wide distance. And I submit also that it's going to damage Ms. Sullivan's property because -- she's got the photos, and I'm going to turn it over to her. But, really, the question for the Board is, are we going to deal with real measurements, or are we going to deal with imaginary measurements? And I submit that I think our job for the county and for the code is to really deal with what the survey shows. Thank you. CHAIRMAN FRYER: Thank you. Next speaker? MR. BELLOWS: Chris Sullivan. MS. SULLIVAN: Hello. Thank you for letting me speak. I'm happy -- I want to be a good neighbor. I'm happy the neighbor can get a boat and a boatlift, but my objection is putting it on the left side. Their home runs perpendicular to my property, so the existing dock already impedes my view. I have photos. But throwing an additional lift on the left side with the minimum of six-and-a-half feet of pilings will completely destroy it and my property value, not to mention the obstruction of a 33-foot vessel. A really good solution would simply be to put the boat on the right side of their property, the lift on the right side. Putting it on the right side will not hurt the next -- the neighbor to the right. It will not hurt his view because they are parallel to each other, and they each have 60 feet of water frontage. I only have 40 feet of water frontage. The neighbor to the right of this property, he has an existing grandfather clause in boathouse, and he has an awesome view. Putting -- this neighbor -- to put the lift on the right, will not affect that neighbor's view at all. We've tested it. Another good solution would be to put the boatlift -- the new boat in the center. They can cut in the dock in the center of his property. That would be a much better egress. I've had several boat captains and marine people come out and tell me that either way, to the right side or in the middle of his property, would have a better egress for him than putting it in the left. I think they just want to throw it on the left because it's just easier than altering his dock. So the right or center would be a great option. It won't obstruct anyone else's view, and they'd have a much better egress out. I have photos. I don't know how to get to them. Sure, I'll let you do that. Sure, and I'll just say -- because I'm being timed. I have a few minutes. These photos don't do it justice. The camera just can't capture what the human eye can capture. And my letters -- I hope you've all read my letter. If not, please read my letter of objection. I think it can do a much better job than what I'm doing right now to explain the situation. But I do invite anyone from the county and anyone at the Planning Commission to the property, because when you step in the home, I think you will better -- you will see there's just not room on the left side to put this vessel. Again, the property -- I did get a survey done. The property is over 60 feet. It's 60.68. With them trying to use plat, it basically comes down to an inch; an inch .32. So for one inch, I just can't have my -- lose my property value. I am a real estate agent, so I do know what I'm speaking about that. It's going to be a problem if I ever try to sell the property. So -- oh, it's not on this screen. Is there a screen I can point to? Okay. This is from -- CHAIRMAN FRYER: You're going to need to be on mic. MS. SULLIVAN: It's okay. If you're looking at the picture there, behind Mr. Bellows, that is from my front door. The home was still under construction from hurricane damage. That's why it has this paper. But, anyway, when you open the front door, there's my dock. There's the dock. So it's bad enough, but they're July 2, 2020 Page 9 of 59 proposing to put a lift. Could I have the next photo, or how do I -- I'm not that techy, but my assistant Photoshopped from the county plans where they're projecting to put the lift in red marker, and I think it would give you a much better example why I'm so concerned. Okay. That was a boat from a previous tenant. It was -- Code Enforcement made them move. It was out of -- that was illegal, but that's what a boat looks like parked where he was -- Jeff Rogers said if they didn't do a lift, they could put a boat, just moor one in the water. That's taken from, like, inside my living room. That was the neighbor's dock. But they did remove it. Next photo, please. Okay. That red box is sort of indicating where -- with the height, six feet where the boat would go on top of a lift. That is, like, from, again, my front door and my living room. Okay. You can go to the next photo. That's another rendering kind of where -- this one covers the dock because, again, the boats -- the lift and the boats' going to be up to the left of the dock, so that's running parallel with the dock that's there. That's another example higher up. But, more importantly, besides imagining what the lift and boat would look like, is you see already how protruding the dock is, which I can't do anything about that. The dock's there. It's been there. But when I purchased the property, the people that were living there then and owned the home said, oh, we can't put a boat here because we don't have the setbacks to put a boat. He had davits or something. If they alter the dock, you could, but -- there we go. That's maybe a better job. She tried to put in an exact -- in exact spaces where they had the rendering on the county from Turrell where the lifts were proposed to go. That's a good picture, if you want to maybe end on that one. Pull it up a little bit. That's fine. Thank you. Again, just in summary, on the right-hand side, if they'd alter the dock, a lift and a boat either cut in the middle would allow them to have nice deck space on each side and a real easy ingress in and out or, simply, put on the right side, it will not affect the neighbors to the right. Because, again, they're parallel. I'm perpendicular. So, basically, I'm in a bad spot. So I really hope the Collier County -- the Planning Commission will protect my view rights and property value. Thank you. CHAIRMAN FRYER: Thanks. Before you sit down, Joe, do you -- MS. SULLIVAN: Sure. COMMISSIONER SCHMITT: Yeah. Ms. Sullivan, was it? MS. SULLIVAN: Yes. COMMISSIONER SCHMITT: You stated for the record that the neighbor to the right wouldn't object. Is that fact, or is that your opinion? Do you have any -- MS. SULLIVAN: The neighbor to the right of -- COMMISSIONER SCHMITT: Can I finish the question, please. I know you want to answer, but I'm going to ask -- because I'm concerned about -- you stated for the record, but is that your opinion, or do you have testimony from the neighbor saying that they don't object to it being on the right? I mean, you made a statement of fact that it would not interfere with that neighbor's view. MS. SULLIVAN: Right. We stood inside the home and in the yard, and looking straight, it would not. I could give you his name and cell phone number if you want to speak to him directly. COMMISSIONER SCHMITT: Is he here today? MS. SULLIVAN: He is not. I assume he received the letter, but I don't know that he's able to come. But it would not -- standing in the yard or even an aerial -- on the aerial view you might be able to determine, too, it wouldn't affect his property. COMMISSIONER SCHMITT: I understand. MS. SULLIVAN: Because his boathouse doesn't affect the neighbors to his right because they're all 60 feet and parallel. They each have boathouses, and they don't affect each other's views. COMMISSIONER SCHMITT: So it's kind of move it to that side so it doesn't bother me, but it may July 2, 2020 Page 10 of 59 bother -- MS. SULLIVAN: No. It doesn't bother them. I'm saying the neighbor has a big boathouse, and the neighbor to his right doesn't see his boathouse, and that guy has a boathouse. They're not -- what they have in their backyard doesn't affect the people to right. I've been to all the homes. I mean, it doesn't affect them. It's because I'm perpendicular to -- like, see how I see his dock right now? They can't see that from their house. COMMISSIONER SCHMITT: I have a question -- MS. SULLIVAN: I hope I answered that correctly. COMMISSIONER SCHMITT: -- regarding, this is the second -- a follow-up question but -- for your attorney. Is that your attorney? MS. SULLIVAN: Yes. COMMISSIONER SCHMITT: I wasn't clear. Was he representing you? MS. SULLIVAN: Attorney John Hooley, yes. MR. HOOLEY: Yes. COMMISSIONER SCHMITT: All right. You made a statement for the record that the plat was incorrect. Do you have a registered survey that indicates that, or was that your opinion or, is that based on what -- I know it's what it says in the staff record, but I'm looking for something that states for a matter of fact that -- you made a statement on the record that the plat is incorrect. So you're stating officially that the official plat for this property is incorrect? MR. HOOLEY: I am. I'm stating that the plat is incorrect; that they have a survey; that they know that the survey shows that the seawall's in excess of 60 feet. And if you've ever looked at surveys, they don't tell you that the platted length of the seawall is 59.89. They tell you what the actual run of the seawall is in feet, and they didn't do that here, and that's a very significant omission on the part of Turrell & Associates. COMMISSIONER SCHMITT: Well, who is they? MR. HOOLEY: Turrell & Associates. COMMISSIONER SCHMITT: Did Turrell do a survey? MR. HOOLEY: We have a survey, I think, in the record but, yes, there's a survey. I don't know whether Turrell did it. I'm not sure whether Turrell's the surveyor. COMMISSIONER SCHMITT: Is there an official -- let me ask the -- I'll go to Turrell, then. MR. KLATZKOW: There is no survey in your material. There's no survey. COMMISSIONER SCHMITT: I don't -- MR. KLATZKOW: There's no survey. COMMISSIONER SCHMITT: There is no survey. I don't have a survey. MR. KLATZKOW: No, you're right. COMMISSIONER SCHMITT: So is there an official survey recorded in the Collier County for this piece of property? MR. ROGERS: (Nods head.) COMMISSIONER SCHMITT: Please come up on the microphone. Because we're at dispute here, and we put some information on the record that the survey is incorrect. I've not seen anything to refute that. All I'm asking is, is there an official survey on the record, and what does -- the official survey in the OR or registered for this piece of property -- MR. ROGERS: Property, yes, sir. COMMISSIONER SCHMITT: -- what does it state? MR. ROGERS: Again, Jeff Rogers with Turrell Hall. Yes, as part of the BDE application requirement, we are required to submit a survey within -- that's been completed within the last six months from the date of submittal. So there is a survey that was submitted with this application. I can't speak as to why you guys don't have that in your files. MR. BELLOWS: We're going to put it on the visualizer. MR. ROGERS: Perfect. But, yes, Turrell did not do the survey. We are not surveyors. July 2, 2020 Page 11 of 59 COMMISSIONER SCHMITT: I understand. I know Turrell. MR. ROGERS: Yep. COMMISSIONER SCHMITT: And just so Ms. Sullivan understands, I'm a former district engineer for the Army Corps of Engineers. I'm an engineer, so I fully understand docks and permits. I've been involved in it in different aspects of my career as an Army engineer but -- from the standpoint of civil works. So let me see -- John, if you could, please -- what's the staff assessment of this? Because I'm sort of miffed that we introduced that there is -- that what's on file is, in fact, not correct. MR. KELLY: There is a survey with the staff report. It's Attachment A. Also, the plat does state, I believe it's 59.89 feet, as does the most current survey. COMMISSIONER SCHMITT: And this is the official survey that is recorded in the Collier -- in Collier County? MR. KELLY: For this project. COMMISSIONER SCHMITT: For this piece of property? MR. KELLY: Yes. COMMISSIONER SCHMITT: So -- MS. SULLIVAN: The county has -- the county i-map has it over 60 feet. MR. BELLOWS: For the record, Ray Bellows. You can have surveyors come up with different numbers. COMMISSIONER SCHMITT: Yes. MR. BELLOWS: That's why -- one of the reasons we use the platted lot width is determining street frontage as well as frontage on waterfront. COMMISSIONER SCHMITT: That's my -- the official recorded -- this is in sync with the official recorded plat for this piece of property? MR. KELLY: (Nods head.) MR. BELLOWS: Correct. COMMISSIONER SCHMITT: Okay. That's all I needed. So, in fact, the distance, as stated, is the recorded distance, not as presented that it was incorrect? MR. BELLOWS: That's my understanding. COMMISSIONER SCHMITT: I know your opinion, sir. You can -- I don't need to hear it again because you already stated your opinion for the record, unless one of the other board members wants to hear it, but -- so I'm -- MS. SULLIVAN: It was recorded in the county project planning on the county site that it's 60.68. COMMISSIONER SCHMITT: I don't see that. MS. SULLIVAN: I'll pull it up for you on my phone. COMMISSIONER SCHMITT: I'm done. MS. SULLIVAN: But I'll do that afterwards. I'll get that letter to you. COMMISSIONER SCHMITT: My questions are done. MS. SULLIVAN: Okay. Two things. Based on that, whether it's seven-and-a-half or whether it's a 15-foot setback, even a 15-foot setback is going to cause the same obstruction of view having it on the left side. I really ask that they put this lift on the right side or in the middle of the dock. Center it -- center or right so it's parallel with the other properties not perpendicular to mine. I wanted to answer Mr. Fry. You had asked the previous speaker about "what if the neighbor had a boat?" I believe you meant my property. I do not have a boat, but in order to put -- if I had a little small flats boat, it would have to go on the right side of my dock because of setbacks with the neighbor who's to the left of me, which would be on the same side as where the subject's proposing to put the lift. I don't plan to get a boat. I am redoing my dock. We have a permit in and, you know, they're working on that right now. But I would have to -- it would have to go there on the right-hand side. CHAIRMAN FRYER: Do you have any other questions? MS. SULLIVAN: But I'm not planning to get a boat, but I'm just letting you know that's where it July 2, 2020 Page 12 of 59 would go. COMMISSIONER FRY: Ms. Sullivan, since you're up there. MS. SULLIVAN: Okay. COMMISSIONER FRY: I mean, I think we're talking about, on the survey, a few inches plus or minus -- MS. SULLIVAN: 1.32. COMMISSIONER FRY: 1.32-inches, all right. I can see how different surveyors might come up with a different number, especially, you know, for that level of intricacy of the numbers. If you had a boat, how long could it be? Is there a number of how long a boat could be on that -- because you may not be the only owner. MS. SULLIVAN: I don't know. I'm guessing 20, 25 feet, maybe 30 feet. I'm guessing just from -- I don't have -- I only have 40 feet of frontage. COMMISSIONER FRY: Regardless of this lift, I think the intent here, I guess my hope, sitting up here as a volunteer, is that both of you have adequate access to and from your dock with a boat of a length that you are permitted to have. MS. SULLIVAN: Right. COMMISSIONER FRY: Is there a boat currently docked at the subject property? MS. SULLIVAN: No. COMMISSIONER FRY: He says he has a 33-foot boat -- or Mr. Turrell [sic] said he has a 33-foot boat, or Jeff -- Mr. Rogers, I'm sorry. MS. SULLIVAN: It's not there. Oh, it's not there. COMMISSIONER FRY: It's not there. MS. SULLIVAN: No. COMMISSIONER FRY: So your concern is not so much that he has a 33-foot boat and could park it along that dock. It's that the lift raises that boat further obstructing your view? MS. SULLIVAN: It's that he's putting it on the left side of his property because it destroys my view. He has ample room on the right or in the middle. He's got 60 feet. Like, he could have a nice setup to the right side. On left side, it really -- because you saw how much the dock -- the dock already is all you see when you walk in my house. I can't do anything about that, because he's perpendicular to me, where the other ones are all parallel. So I have a real problem with the view. If he would just put it in the middle, to the right, that would save my view. COMMISSIONER FRY: You had a large boat that you showed a picture of that was moored there previously. I guess if he -- this gentleman has a 33-foot boat, it would be -- it sounds like -- MS. SULLIVAN: It's not going to look much different than that picture. COMMISSIONER FRY: It won't look much different? MS. SULLIVAN: That boat was bigger, and it was in violation, and Code Enforcement came out. That was a tenant that -- from the previous owner, and they got rid of him. But that boat -- that was awful. That picture, that was taken from, like, inside my house. So, I mean, that's probably a 59-foot boat, I'm guessing, 60, but it's not going to be much different having any boat out there. I just wish he would put it in the middle or right side. COMMISSIONER FRY: Okay. But you're prepared that he has the right to park the 33-foot boat there now. The only thing at issue today is the lift, is my understanding. MS. SULLIVAN: It doesn't look like he even has the seven-and-a-half -- there's a pole in the middle from the surveyor showing a riparian line, and it just doesn't look like there's room for a lift or a boat. But, again, when you look at these aerials, it looks like there's all this room. When you go to the property and stand there, it does not look like there's enough room. I don't know how that's seven-and-a-half feet. I've had dock guys just look and guess, and they think, oh, it looks like there's eight feet there, nine feet. It doesn't look like there's a lot of room. It's going to be a really tight fit. For him docking it, too, it's going July 2, 2020 Page 13 of 59 to be really tight. COMMISSIONER FRY: In our position, we have staff that has recorded for the record that there is enough room based on, you know, the Land Development Code and the codes for docks. So I think we have -- as a Board, we have to rely on that information or not trust it. I tend to trust that information. That's their job. So have you talked to the applicant about putting the lift on the other side? Have you had a conversation with them? MS. SULLIVAN: I did once. I asked if he was going to put it on the right or the left, and he said the left, because he probably doesn't want to alter -- he might have to alter the dock a bit to fit it in on the right. I asked -- he did come in the home. And I said, well, it's ruining my view. And he walked in the house. He goes, I see a great view. I said, well, look at your dock. And he just kind of looked at it, and he left. You know, I just -- I don't want problems with neighbors. I was trying to be very nice, you know. And then I was in the home at the time with some -- my contractors. So he had come back in, and I said, it's fine. And he went to look at something, and he was just staring. He was just looking. I didn't really talk to him because I was with the builder. But I think he knows. Anyone that walks in the house -- I've had people walk in and say, I can't believe that dock's there. The county allowed that? And I'm like, well, it's -- you know, the dock, I know, is on his property. It's just because of the perpendicular -- the illusion -- the perpendicular. It's bad, but it's like, what, a V.? I'm the last house, and he's the next house. But a lift, I just can't imagine that being allowed, a lift with a boat. It's going to completely block -- it's going to ruin my property and ruin my property value. CHAIRMAN FRYER: Okay. I'm going to ask planning -- were you finished? I'm sorry. MS. SULLIVAN: Okay. CHAIRMAN FRYER: Were you finished? COMMISSIONER FRY: Sure. Yes. CHAIRMAN FRYER: Okay. I want to ask Planning Commissioner Shay if he has any questions. I don't want to forget about him. Paul? (No response.) CHAIRMAN FRYER: I take that as a no. Do we have any other registered speakers, Ray? MR. BELLOWS: No other speakers. CHAIRMAN FRYER: No other speakers of any kind. MR. HOOLEY: Excuse me. Could I just put one thing on the record, since I'm not -- we may be appealing this. CHAIRMAN FRYER: Go ahead. MR. HOOLEY: I know Mr. Schmitt is taking me to task on arguing about the survey, so I'm relying on Mr. Kelly's letter, and Mr. Kelly's letter says, as-built survey demonstrates a waterfront width of 59.89 feet platted and 60.68 measured. So, you're right, I didn't get the survey and measure it out myself. I relied on the county to have -- to analyze the plat and tell me what the actual measured amount was. So I'm not trying to -- I'm not trying to dispute this. I'm trying to tell you that I relied on the county to have the actual measured thing. Otherwise, if I thought it was a real issue, we would have had a survey and a surveyor come in here and talk. But it seems like the county agrees that it's over 60 feet. CHAIRMAN FRYER: All right. Thank you. I'm going to ask the county to respond. MR. KELLY: What's being referred to is a review corrections letter or request for corrections letter. Since that correspondence was issued, they provided a new survey which provided the 59.89 feet of shorefront, waterfront. CHAIRMAN FRYER: Thank you. Petitioner have some rebuttal? July 2, 2020 Page 14 of 59 MR. ROGERS: Yes. For the record, Jeff Rogers again. There was a lot of things said there that I want to try to touch on real quick. I'll be brief. The big thing here, basically, from what I heard, is the question of being -- the option of moving the lift. We looked at that option, you guys. If I could get my aerials back up, I could show you real quickly why that would not work. Again, we're going back to the grandfathered structure here, and it's located within the required setbacks. And if we added a lift onto the right side -- we only have seven-and-a-half feet. As you guys can see on the screen right here on the right side, that's actually 7.6 feet currently. So we just meet the required setback for the structure. So any additional structure we put within that setback would require a setback or a variance to setback requirements. And the 7.6 feet is just not wide enough. Now, the next option would be taking the dock out and rebuilding it. We obviously looked at that, too. And getting into the weeds a little bit here, this is aquatic preserve with the State of Florida and the Department of Environmental Protection, and they have very tight restrictions for docks. This dock is grandfathered with DEP as well. And if we remove this dock, we would never get this dock back, ever. COMMISSIONER SCHMITT: That's correct. MR. ROGERS: So with that being said, we would then have to comply with the aquatic preserve rules as -- Isles of Capri, you know, is one of those places where a lot of things were done historically just, you know, without permits, and this dock was one of those. And we're dealing with a nonconforming dock trying to bring it into conformity. And the state would really -- we would end up which a marginal dock, you guys, about 5-foot wide off of the seawall, and then imagine the ingress/egress for that. The subject dock next door as well, we would have to comply to those rules. I did some research into that dock. That dock, too, does not have any state or federal permits and nor county permits either, and that dock -- I do have a historical aerial showing the buildout of that dock over the years that I could show you. I brought those just in case we got into this. The dock, as you see currently, was built in 2012, expanded to the current footprint. I don't believe the current owner did that. I think she bought the property with the dock there. So we all -- it is a very tight situation. That vessel that she did show sitting in the water did go over the setback, you guys, and was the reason why that vessel had to be removed from the site, so -- and that was a tenant that was renting the home prior to the current applicant buying the house. So since then there has been, to my knowledge, no vessel kept there overnight, just temporary. He does have a 33-foot vessel that he's keeping on the uplands until he can put a lift in to store the boat there, because if you guys don't know, storing vessels in water is not the best thing for water quality, and it definitely -- you have the bottom paint and all that. So he's trying to put a lift in to keep the vessel safe. A professional surveyor would come out and be required to do a layout for this for the contractor to install the lift. That is one of the first things contractors do, because if they did not have a surveyor come out and lay out the setback requirements of seven-and-a-half foot because, as was testified, it is very -- you know, looking at it on land from shore, it is tight, and that's why you need to make sure that the lines are right. And if a contractor builds over that line, then he's responsible and has to go back and move it. So it's on him to get a pre-layout survey which happens on every job that Turrell is involved in. It's a requirement. So with that being said, we want to be neighborly. We would love to put the dock in a different area; however, we would never get this dock. It's grandfathered with you guys, Collier County, as well as the state and feds. Looked at every option. This is the only option that would fit a vessel and the boat on a lift. CHAIRMAN FRYER: Thank you. Joe? COMMISSIONER SCHMITT: Yeah. I just want to summarize. Are we closing the public hearing? Because then I want to put some statements on the record. CHAIRMAN FRYER: Not -- we haven't closed it yet. COMMISSIONER SCHMITT: All right. July 2, 2020 Page 15 of 59 CHAIRMAN FRYER: So you're going to hold? COMMISSIONER SCHMITT: Yeah. Just until I'm ready to put it on the record. CHAIRMAN FRYER: Okay. So -- all right. So you've lit up for after the public? COMMISSIONER SCHMITT: Yeah. CHAIRMAN FRYER: All right. Any other planning commissioner have any questions of anyone before we close the public segment? Ma'am, I'm sorry. MS. SULLIVAN: Am I allowed to speak again? CHAIRMAN FRYER: Sorry. All right. There being none, without objection, we're going to close the public speaking portion of the hearing and move to Planning Commission deliberations. And Commissioner Schmitt's light is on. COMMISSIONER SCHMITT: Yeah. I'll make a statement. Isles of Capri certainly has been an issue in this county for many, many years. Just for history of my fellow planning commissioners, it goes back to the Deltona Settlement. I won't go into detail about the Deltona Settlement, but it was basically the elimination of dredge and fill on Marco Island and Isles of Capri, Marco Shores, and some of the other properties down in that area were mitigation to the developer of Marco Island for eliminating, basically, the dredge and fills throughout the state of Florida. That was a lawsuit back in the '80s. But this is an issue, and it's a nonconforming dock. Mr. Rogers is, in fact, correct; if they took this dock down, they would not get a new dock. The state would prohibit it. The federal government has deferred to the state and, in fact, and the state in many cases defer to local government in regards to dock and imposing and protecting riparian rights -- riparian rights and the long history in regards to docks and views. The issue here is the neighbor says I don't want it in my view. I want it in my neighbor's view. And we could go on and on about the dispute, but there are riparian rights. There are certain rights. This is a legally nonconforming structure, and the intent was to make it legally conforming. I fully understand and empathize with Mrs. Sullivan, but the fact of the matter is, I believe, in my personal opinion, the homeowner has every right to bring this dock into conformity, has every right to put a dock -- put a boat there. When you buy a piece of property on a water body, the homeowner is going to face the problem of either looking at a dock or looking at a boat. And I could basically say, then there are other places to live if you don't want to look at a boat, because you're going to look at a boat outside your window if you're living on a waterway. I find that -- I don't find any objection to this from a standpoint legally. If, in fact, there is a dispute on the survey, I would suggest that you pursue a second- or third-order survey, because typically a land survey is probably, what, plus or minus a half inch. You can go second or third order, and we can bring this very much closer, but you're going to spend a lot of money doing a second-order or third-order survey. I mean, I'm talking -- when we're talking within centimeters. So if you want to dispute -- and look at -- look at an official plat. So based on my statement, I see no reason to object to this, and I fully support it. I recommend approval. CHAIRMAN FRYER: Thank you. Commissioner Fry? COMMISSIONER FRY: Joe, I appreciate your comments and the background and the history that you bring to this. I need to ask for a little bit more input from my fellow commissioners. My question is, I see that the homeowner's entitled to have a boat there. This application is for a lift. COMMISSIONER SCHMITT: Yes. COMMISSIONER FRY: Is that a right that you believe that comes with the dock to put in a lift which it raises a boat and further encroaches on the view of the neighbor, or is that a subjective type July 2, 2020 Page 16 of 59 determination? COMMISSIONER SCHMITT: I don't know if it's a right. That -- I can't answer that. It's certainly a privilege that comes with a -- with owning a dock, because you do have a right to pull your boat out of the water to protect your boat. That's why people have lifts. Go ahead. MR. BELLOWS: For the record, Ray Bellows. The boatlift is part of the dock facility. A dock facility, if it meets the criteria, staff will make a recommendation of approval. If it doesn't meet the criteria, then we'll make that recommendation. But a dock is an accessory use to a single-family residence, and part of that dock includes a boatlift if the property owner so wishes to have it. COMMISSIONER FRY: Ray, are you saying that by a means of owning the home and the dock, that confers a right to have a lift there also as long as it meets these other setbacks and other requirements? MR. BELLOWS: Well, it's an accessory use. The dock is an accessory use to a single-family residence, and that is permitted by right. And if it meets the criteria, they can extend out beyond the -- this limit for each dock. It's usually 20 feet. Now, if they want a boatlift with that and the dock is less than 20 feet, they don't have to come in for a boat dock extension petition. MR. KLATZKOW: All right. But having said that, they're asking -- they're asking you for a variance. You are allowed to place conditions on that variance. I'm not recommending you do this, not recommending you don't do this. But one of those conditions could be no boatlift. So we'll give you your variance for the dock, but you're not allowed to put up a boatlift. You've got that ability. I'm not making any suggestion one way or the other that you do this. COMMISSIONER FRY: Thank you, Jeff. Is there precedent for other issues like this that have come before this board in the past where these types of petitions were rejected because of further encroachment of the neighbor's view? MR. BELLOWS: Well, view corridor's somewhat subjective. The county looks at the view corridor as what is viewed from within each property owner's riparian lines. So if you see a dock on somebody else's property within their riparian lines, we don't -- that's not deemed to be an issue from meeting that standard. MR. KLATZKOW: Well, it's one of the criteria. MR. BELLOWS: It's one of the criteria. But if it was crossing into somebody's view corridor through their riparian lines, then we could make a case it's not meeting that criteria. COMMISSIONER FRY: But in staff's opinion, as you've stated, this lift, all things considered, meets the criteria? MR. BELLOWS: Correct. And there are some unusual circumstances with the configuration of this lot and its angular proximity to the adjacent lot. So your view corridors are going to cross at some point. COMMISSIONER FRY: From the aerial -- one of the aerials, it showed that this dock was there and this property was there before any of the others to the -- MR. BELLOWS: Correct. COMMISSIONER FRY: -- to the north of it. MR. BELLOWS: It was a preexisting nonconforming dock. COMMISSIONER FRY: So anybody that built that home and that dock that is to the north of it knew this dock was there when they built this property and that there would be a boat there. The question is the lift. MR. BELLOWS: Correct. COMMISSIONER FRY: Thank you. Any other -- CHAIRMAN FRYER: Thank you. Any other planning commissioners have questions or comments? And I'm also asking Paul if you do. COMMISSIONER SHEA: No, no questions. CHAIRMAN FRYER: Okay. I have a couple of concerns, I guess, that I want to express. First of all, I struggle over the very issue that is, I think, now before us, and that is whether Secondary Criteria No. 4 July 2, 2020 Page 17 of 59 has been met, and that has to do with the view of the neighboring property owners. And I think -- I think there's an argument that could be made both ways on this, but I believe the burden would have been on the Pago Pago property owner to demonstrate a little more persuasively as to what the -- what the blockage would have looked like. And I, personally, was not adequately persuaded that the drawings that were presented to us conform to the reality of what would actually -- what that would actually look like in terms of blocking and, also, there's still a considerable amount of water view that's available to that property owner. Furthermore, I think the official records of the county reveal that the shorefront is 59.58, and I don't think a case has adequately been made that another number should apply. And, finally, I don't believe there's anything brought before us, at least nothing that was competent or sufficiently persuasive, with respect to consent from the neighbor to the right of the property to allow a relaxation of the setback. So for those reasons -- and it's not without concern for the rights and interests of the Sullivans; nonetheless, I'm prepared to vote in favor of this. Anybody else want to make comments before we call for a vote? (No response.) CHAIRMAN FRYER: All right. I'd entertain a motion. COMMISSIONER HOMIAK: I thought Joe made a motion. COMMISSIONER SCHMITT: I made a motion. I make a motion that -- let me go back to the number, please. CHAIRMAN FRYER: The -- COMMISSIONER SCHMITT: The petition here. CHAIRMAN FRYER: The number is PL20190001695. COMMISSIONER SCHMITT: Right. I make a motion that PL20190001695 -- this is a resolution to the Collier County Planning Commission for a boat dock extension. I recommend approval as stated in the staff report. COMMISSIONER HOMIAK: I'll second it. CHAIRMAN FRYER: It's been moved and seconded to approve the petition. Any further discussion? (No response.) CHAIRMAN FRYER: There being none, all those in favor, please say aye. COMMISSIONER FRY: Aye. CHAIMAN FRYER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. COMMISSIONER SHEA: Aye. CHAIMAN FRYER: Opposed? Okay. That was you, Paul, saying aye? COMMISSIONER SHEA: Yes, sir. CHAIRMAN FRYER: Okay. So it passes unanimously, 5-0. Thank you very much. ***Let's see. The next -- the next matter before us is PL20180003511. This is the Melrose Lane communications tower variance, and in this case our action would come in the form of a recommendation to the Board of Zoning Appeals. All those wishing to testify in this matter, please rise to be sworn in by the court reporter. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN FRYER: Okay. Thank you. Ex parte disclosures from the Planning Commission starting with secretary. COMMISSIONER FRY: Staff materials. July 2, 2020 Page 18 of 59 CHAIRMAN FRYER: Okay. For me it's staff materials and communications with staff. COMMISSIONER HOMIAK: Nothing, just the staff materials. COMMISSIONER SCHMITT: Staff materials and additional emails from the staff regarding this petition. CHAIRMAN FRYER: Commissioner Shea. COMMISSIONER SHEA: Just staff materials. CHAIRMAN FRYER: Okay. Thank you. We'll begin, then, with the applicant's presentation. Please introduce yourself and proceed. MS. JAHN: Good morning. I'm Mattaniah Jahn, 935 Main Street, Suite D, Safety Harbor, Florida, 34695. I also have Bill Compton with Verizon Wireless available to answer any questions you may have concerning Verizon's RF need. He has -- we have both taken an oath. I come before you today with a staff recommendation of approval for a variance allowing a 150-foot monopole style communication tower to remain at 5650 Melrose Lane. If I may please have the PowerPoint or the -- okay. We're set up for that. So this is a general -- this is an aerial of the Lely area, and you can see in the approximate center is a green marker. That is the Melrose monopole. There -- the vertical line running through the middle is Collier Boulevard. As we get closer, you can see to the south of the green marker which, again, is the Melrose tower, Sabal Palm Road, and to the west is also Collier Boulevard. And then this is a closer view yet showing approximate lot lines. Generally speaking, to the northwest is Rattlesnake Hammock Road and Hacienda subdivision. To the south is Sabal Palm Road and then Veronawalk. To the east is the Rockedge PUD and nursery and ag zoned land with residences to the west, our nursery, then Collier Boulevard, then the Lely Resort. You'll notice that mature existing vegetation is present throughout the area. Parent parcel zoned agricultural with a future land use designation of urban residential fringe subdistrict. Communication towers are permitted on properties with this -- with these designations as of right and allowable via variance when standards need to be adjusted. This is an aerial from Sheet C1B of the plans, and it's a setback layout diagram, and it shows the location of the Lely monopole located towards the southwest side of the parcel. Okay. Good. You can see the -- can you see my mouse on the -- on your screens? COMMISSIONER SCHMITT: Yes. MS. JAHN: Excellent. So where I'm pointing right now is the monopole. It's surrounded by an enclosed equipment compound that has a concrete wall. To the north is a preserve that was applied to the land. You can see setback lines. I apologize that they're black on green, but they're setback lines for the two-and-a-half times tower height separation to the north and also the 50 percent tower height separation to the west. This monopole was sited at the time to meet the residential separation to the north. The parcel to the southeast at that time was cognized by both SBA and staff to be agriculturally zoned. At the time that this was applied for, the monopole met all -- was believed to meet all required setbacks. SBA is requesting a 30 percent reduction, so of the required setback to the southeast in order to maintain the monopole in its location and at its current height. That still provides 1.75 times the tower height separation. I also polled the Rockedge PUD and did the math to see what the distance to the closest buildable lot line setback would be within the PUD, and it's actually 1.91 times tower height separation. So you're going on almost two times there. This monopole employs fall zone technology. Basically, that means that a crimp point has been designed within the monopole so that in the unlikely event that -- if it were to fail, it would fold over upon itself and be contained completely within SBA's lease area on the parcels. That's within a 50-foot distance. This is a plan sheet that just shows the setback lines more clearly. You have this in your record. CHAIRMAN FRYER: Excuse me, Ms. Jahn. July 2, 2020 Page 19 of 59 MS. JAHN: Yes. CHAIRMAN FRYER: Just for clarification -- I apologize for interrupting. But with respect to the fall zone -- because this was going to be a question of mine -- if there were a fall and it fell based upon where it had been crimped -- is that the word? MS. JAHN: Yes. It's basically designed with a preengineered failure point. CHAIRMAN FRYER: Okay. So my question is, then, if it fell at that pre-engineered failure point, how many feet from the closest improved structure would it be? MS. JAHN: I can pull the plans and tell you. It would be that on-site structure to the northwest. Actually, let me see here. Right now I'm showing 287 feet to the nearest buildable lot line on the Rockedge PUD. So it would be 237 feet away. CHAIRMAN FRYER: Thank you. Sorry to interrupt. MS. JAHN: All right. Moving on to the elevation. Verizon Wireless is the anchor tenant for this tower. They are the reason that it was constructed. They are collocated at the top. This is the elevation sheet from your -- from the plan set. So the height of the tower is the minimum height necessary for Verizon to achieve their RF objectives. If you were to shorten the tower any further, you would have to lower Verizon's antennas and, as a result, it would cover less area. The other thing to also keep in mind is when you -- this tower is designed for collocation. Those collocation spaces are available on a market basis. So as other carriers have need in the area, your code actually encourages collocation onto existing towers. And as you shorten the top collocation, you shorten all the other ones, and they become less effective as well. I'm going to move -- this is just a plan sheet showing the equipment compound, and it also clearly shows the fall zone radius. It is the circle within that equipment compound. Now, moving on to an RF package that was provided by Verizon Wireless to show what this monopole is currently doing in the area. And, generally speaking, modern communication towers serve two functions. They fill holes in coverage, and they also remove traffic strain from neighboring towers, which is called capacity. A communication tower is like a road. It can only handle so much traffic upon it. As our use has been expanding, you need to -- in addition to filling holes in service, you also need to offload that traffic stress, and those two combined can -- a lack of capacity or a lack of coverage can create a gap in service. This monopole serves over 9,000 peak active users on average per weekday. It provides coverage for the Veronawalk, Saratoga, Tiger Islands Estates, Classic Plantation Estates, Players Cove, Lely Elementary, South Florida -- Florida Southwestern State College, the Arlington facility, and the Rockedge PUD once it's built out. It removes capacity strain from the three existing towers that were previously attempting to serve this area. It also additionally serves as the data backhaul for Verizon's distributed antenna system at the Collier County EOC and provides in-building coverage for Physicians Regional Hospital and the Collier County Library. This also provided coverage for the Picayune -- for the wildfires in Picayune Strand State Park in 2018. These are charts just showing usage per sector. There's three sides to a communication tower. I'm going to skip through these quickly unless you were to have questions on these. This is the coverage that's currently out in the area today. So in the middle, again, is the monopole. To the north, southwest, and south are the existing communication towers that we're attempting to serve the area. Everything that's colored green is reliable wireless coverage. Everything that's colored red is unreliable wireless coverage. If the monopole were shortened to 100 feet, this is what the coverage would be. You would have gaps in service in the south -- the south and east portions of Veronawalk. You'd also have gaps in service through the north portions of Lely Resort heading up towards the college. Mr. Compton is available today if you have questions on this, but he is prepared to testify that he -- to July 2, 2020 Page 20 of 59 fill these two gaps in service, he would need to construct two additional communication towers to fill the two different holes that would be created, and that's not even addressing the loss in coverage on the north and east towards the Hacienda subdivision. CHAIRMAN FRYER: Could you show the previous slide again, please? MS. JAHN: Absolutely. CHAIRMAN FRYER: Okay. Thank you. MS. JAHN: So this is coverage today, this would be coverage at 100 feet, and then this is the coverage without the monopole. Just a quick overview of height. It's driven by what's called ground clutter on the earth. So, essentially, cellular signals aren't like your AM/FM radio station signals where you could place a communication tower in Immokalee and reach from Okeechobee to Marco Island. You have to place the communication tower where the users are because the signal, essentially, gets absorbed and scattered by things like trees and buildings. These are pictures from the south along Plantation. You can see the monopole in the background there. You can also see in the foreground that existing utility wires are taller than it, and existing trees in the midground are nearly as tall as the monopole itself. This is a view from Collier Boulevard, and you can see that they have to get the signal over these trees here, and they completely obscure the monopole at this point. This is from the north near Physicians hospital, and this is from the east off of Brandy Lane. This is a very simplified diagram showing how the system works. Essentially, if you're too short, you're in the situation on the top where you have objects obstructing the wireless signal to the users. And once you are tall enough, you can get over those objects; you have a scenario like you see in the bottom. This is a map from the RF package that shows that -- shows the distance to the nearest handoff towers. These are the towers I described earlier, but the nearest tower to the north is 1.55 miles, the nearest tower to the southwest is 2.35 miles, and the tower to the south is 3.3 miles. So those nearest towers are pretty far away, and you saw on the RF maps that they don't have the ability to reach into the Lely area. Finally, I'd just like to touch on the search ring that was released for this. Verizon's original request was for a 180-foot-tall monopole down at the entrance to Veronawalk. That's the most efficient solution that Verizon identified to solve their significant gap in service. The further you move away from that geographically and the shorter the monopole becomes, the more it becomes a compromised solution. In this instance, this is -- and I'm moving to an aerial showing the monopole relative to the search ring. The white oval is the search ring that I was discussing where Verizon initially determined they need the 180-foot-tall monopole. And the marker up here towards the upper center is the Lely monopole. So they've moved away, and they've shortened 30 feet. The design itself is already a compromise compared to the most efficient solution. The other thing to notice from the search ring is that it was commissioned in 2013, and Verizon's equipment was not installed on the monopole until 2018. So it took them five years from the point where they determined they needed a communication tower in the area to the point where they had a communication tower that they were collocated upon. I'm going to just move real quickly through the variance elements so as not to take too much time. You have these mostly described in your -- in the narrative I submitted, like peculiarity. This parcel is a triangle-shaped-parcel. If it were squares, we wouldn't be here discussing this. Another thing to keep in mind with peculiarity is that the structure itself has limitations upon it. Monopoles have -- communication towers have to be cited in a relative position compared to the other towers in the area so as to provide network. Special conditions and circumstances. Again, you do have that triangle-shaped parcel. Unfortunately, we are here in a reverse order procedurally because there was an error in the zoning maps, and we went -- and that was not cognized by either SBA or county staff, and we went through the entire review July 2, 2020 Page 21 of 59 process. And there is a tower on the ground -- or tower in the air out there, and Verizon has their equipment there providing service currently. Literal interpretation hardship. This ties back into it. You saw that Verizon would lose a significant amount of coverage if they had to remove their antennas, even if they were to shorten it. The other thing that plays into hardship is the fact that SBA went through the process in good faith and, unfortunately, we find ourselves in this situation where we do need this variance, and denial of it would require partial, if not complete, removal of the monopole. Minimum requests possible. The separation is driven by the height of the monopole. The height is driven by Verizon's RF need. There's no additional tower height above Verizon's antennas, so this is the minimum request necessary. No special privilege. This is not a request for any type of special privilege for constructing a use that could not be constructed otherwise. This is an attempt to correct an unfortunate error that occurred. Additionally, I would submit that your tower code also anticipated the need to vary the dimensional standards from time to time in order to provide communication towers that fulfill the sound planning objectives of your tower code. Harmony and intent with the LDC. Again, your Land Development Code was designed to be varied on a case-by-case basis through this height and scrutiny that we have today and anticipated the need to make adjustments. I would also contend that there would be -- that the monopole furthers the public welfare through the provision of reliable wireless service. You heard that it serves as a backhaul to Verizon's distributed antenna system at the EOC, but the other thing to keep in mind is that over 80 percent of all 911 calls in 2018 were -- came from wireless phone -- wireless phones, and this is a backup email for that. And what this shows is that reliable wireless network -- reliable wireless coverage is not a luxury. It's a necessity. Natural conditions. I respectfully submit that the vegetation along -- on the parcel and along the southeastern lot line helps provide buffering that would -- helps provide buffering for the monopole. And then consistency with the Growth Management Plan. I respectfully submit that your Land Development Code is the expression of your Growth Management Plan when it comes to communication towers, and it was intended to be varied on a case-by-case basis for the logical implementation of wireless coverage when balancing all the factors before you. So to wrap up, SBA respectfully requests the Planning Commission recommend approval of the monopole to the Board of Zoning Adjustment as depicted in the staff report and application. That concludes my presentation. I'm available for any questions you may have. CHAIRMAN FRYER: Thank you. Commissioner Schmitt. COMMISSIONER SCHMITT: Yeah. Just for clarity, the drawing, C3, that's the monopole. There's no guidelines. This is basically just, what, a reinforced concrete structure? MS. JAHN: It's actually a steel structure -- COMMISSIONER SCHMITT: Steel structure. MS. JAHN: -- on concrete caisson. There are no guy wires. COMMISSIONER SCHMITT: No guy wires. MS. JAHN: No guy wires. COMMISSIONER SCHMITT: Okay. That's all I have. CHAIRMAN FRYER: Commissioner Fry. COMMISSIONER FRY: Good morning. First of all, I want to commend you. I just thought that was a very clear and concise presentation; made it very clear for us. I think we're here because a mistake was made initially, that the location of this kind of slipped through the process, and maybe it would not have been located as close to that RF PUD. What are the detrimental effects of having a tower within a range that's shorter than what's recommended of a residential July 2, 2020 Page 22 of 59 community? MS. JAHN: Some would claim that there is an aesthetic effect from that. As far as -- there are people who would say they wouldn't like to have it nearby; however, there's many instances throughout the state of Florida where you have communication towers that are much closer to residential areas, and they do not affect the market rates in the area. COMMISSIONER FRY: Do we know -- are there any photos that were taken from the border of the RF PUD? It's still trees at this point, I assume. Do we know what their view of this tower will look like? MS. JAHN: I do not have any photos from the RF PUD parcel itself. The one thing to keep in mind about the dynamics of tree coverage is that the closer you get to the tree line, which is actually on the parent parcel, the more buffering that it does provide, because basic site triangle visibility says if you move the source point closer, the object -- the object in the foreground is relatively larger compared to the object in the background. COMMISSIONER FRY: You mentioned -- or it's reported that Verizon is the anchor tenant. I'm not familiar with how these towers work. But I know that in shopping centers you have an anchor tenant and then a bunch of other subtenants. How does a cell tower work in terms of, are there other tenants of this tower? And if so, name a few or at least tell me the character of those. Is it other cell phone companies that collocate on these towers? MS. JAHN: At this time, Verizon is the only tenant that's providing cellular service from the monopole. Essentially how these work is that carriers instruct or commission tower companies, like SBA, to find locations where they can construct monopoles -- or construct communication towers to solve significant gaps in their network. So in this instance, as you can see from the search ring here, Verizon issued a search ring in 2018 and basically said, go forth and find us a site that can support a 180-foot monopole in this area. Then companies like SBA go out and search the area, work their way through. They're attempting to find something in the search ring, and they progressively move away from it, as there's a -- a pawn failing to find acquirable sites within the search ring or near the search ring. COMMISSIONER FRY: Thank you. That's all I have. CHAIRMAN FRYER: Thank you, any other planning commissioners have comments? (No response.) CHAIRMAN FRYER: Paul? All right. If not -- COMMISSIONER SHEA: None. CHAIRMAN FRYER: Thank you very much. We'll now hear from staff. Going forward, in order to expedite, we can also use the center podium while the other one is being cleaned. Thank you. MR. FINN: For the record, I'm Tim Finn, principal planner. The project is compliant with the GMP and LDC; therefore, staff recommends approval. CHAIRMAN FRYER: Thank you. Any Planning Commission questions -- oh, Joe, you're lit up. COMMISSIONER SCHMITT: Yeah. There was a letter in the packet from Attorney Pires, Mr. Pires. Have you addressed any of those issues? That was addressed to you. MR. FINN: Yeah, we did look at those issues yesterday. I talked with Matt McLean as well as Chris Scott from Site Development Planning, and the communication tower is compliant with Site Development Planning and all the structural codes. COMMISSIONER SCHMITT: Okay. Because he -- in the letter, he has -- in the packet here are several positions raised by Mr. Pires in regards to what he believes are salient points for denying this request. And you reviewed each of those. And are you prepared to refute those? Because I see Tony's here, so I'm sure he's going to make a presentation in regards -- and so this will become an issue, because I'm certainly looking forward to hearing what he has to say, but you're prepared to address each of these points? MR. FINN: Yes, we have staff that's here to -- prepared. COMMISSIONER SCHMITT: Okay. July 2, 2020 Page 23 of 59 CHAIRMAN FRYER: Okay. Commissioner Fry. COMMISSIONER FRY: Hi. Tim, what is the significance and impact -- why do we have a 2.5-times separation guideline for RF PUDs from cell towers? MR. FINN: That's how it's laid out in the code. When the cell tower came in via permit, the zoning map was not updated. It still had illustrated agricultural when it should have been Rockedge PUD. So that separation requirement, in good faith, it was incorrect. MR. KLATZKOW: To give you some history on this, this provision of the LDC is rather old, and when it was put in, it was when cell towers had guidelines, and also they would tend to fall down like trees rather than self-collapse. We've had this issue discussed off and on for several years, and staff is in the process of updating this provision. I don't know when they'll be coming back. But the reason for the two-and-a-half times setback really is a historical need rather than a present need. COMMISSIONER FRY: So the new guidelines that they're working on would require a shorter setback? MR. KLATZKOW: I have no idea what they're going to come back with. I do know that they've been working on it, and they've been working on it for some time. COMMISSIONER FRY: But you're saying the main criteria for the two-and-a-half times was guy wires -- MR. KLATZKOW: It was the technology at the time. COMMISSIONER FRY: -- and falling? MR. KLATZKOW: Yes. It was the technology at the time that we put the Land Development Code together. That technology has evolved. The Land Development Code is in the process of being evolved with it. COMMISSIONER FRY: So the salient point here to me is that it was not based on wireless transformation risk of being near the cell tower from a standpoint of radiation and -- MR. KLATZKOW: I can only go by what Stan Chrzanowski used to talk about, because he was part of that. And it was due to the fact they used to fall like trees. And if it was close to agricultural land, the setback could be smaller than if it was close to houses. But they don't fall like trees anymore. COMMISSIONER FRY: Thank you. Very helpful. COMMISSIONER SCHMITT: Just to follow up what Jeff said. He's, in fact, correct. It was the design for the fall zone because, of course, towers, as -- over the years -- certainly today the structural engineering and other ways of constructing. That's why I asked the question about the construction of the pole. But it was basically to protect anything on the ground from being in an area in case of a collapse of a tower. And you could Google towers in the past. I mean, there has certainly been engineering failures. But the designs today, there's no guidelines. These are all -- and that's -- I believe there was a prestress concrete. These are -- which was stated, it was a steel pole, but it certainly is prestressed in order to prevent. And it was pretty interesting that it actually has a failure point to prevent and reduce the area required for the fall. COMMISSIONER FRY: In the follow-up item there was a writeup about how the crimp point is kind of a certain distance from the top, and when it falls, it actually stays attached to the tower and falls completely within the area, I think, that's surround by a concrete wall, correct? (No response.) COMMISSIONER FRY: All right. Thank you. CHAIRMAN FRYER: Any other planning commissioners have questions or comments of staff? COMMISSIONER SHEA: I have a question, Ned. Ned? CHAIRMAN FRYER: Yeah. Paul, please. Go ahead. MR. BELLOWS: It's Paul. COMMISSIONER SHEA: And more of these educational questions that I like to ask. Originally, the property was zoned agriculture. And when was that changed, Tim? MR. FINN: Two or three years ago. July 2, 2020 Page 24 of 59 COMMISSIONER SHEA: Two or three. And if it had stayed agricultural, the tower that's up there now would not be -- we wouldn't be having this hearing right now. MR. FINN: It would be in compliance, yes. It would be in compliance. If it stayed agricultural, it would have far exceeded it. CHAIRMAN FRYER: Anything else, Paul? COMMISSIONER SHEA: No, that's it. Thank you. CHAIRMAN FRYER: Okay. Thank you. Thank you. It's 27 minutes after 10. I think we want to take a mid-morning break but, before doing so, I want to ask Ray to just let us know about registered speakers. MR. BELLOWS: We have two public speakers present. I believe one of them is with the applicant's team, Mr. Compton, and then two virtual speakers. CHAIRMAN FRYER: Okay. Thank you very much. So we will stand in recess until 20 minutes of 11:00; 13 minutes. (A brief recess was had from 10:26 a.m. to 10:40 a.m.) CHAIRMAN FRYER: We're back in session. And I'm going to ask Mr. Bellows to call upon the registered speakers, please. MR. BELLOWS: Anthony Pires is the first registered speaker. MR. PIRES: Mr. Chairman, members of the Planning Commission, Tony Pires with the law firm of Woodward, Pires & Lombardo representing Waterman at Rockedge, the owner of the RPD to the north and east of this property residential PUD. I think one correction for the record that's important. I think the question was asked, when did the property, I think -- I assume to the east and north, when was it changed from agricultural to PUD. It was -- your agenda packet at Page 129 references the pertinent dates. And the rezoning of the Rockedge PUD occurred on February 11th, 2016, and the tower application was submitted June of 2016 and issued -- the permit issued September 2017. So the erroneous approval of the SDP was 16 months after the Rockedge PUD was approved. So everyone was on notice of the fact of the existence of that RFD. A couple of important points also. I would like -- I don't know if a copy of the PowerPoint has been provided to staff. It should be part of the record, and I'd like to request a copy of that PowerPoint. One other interesting aspect is a lot of the argument made by the applicant's counsel in today's meeting is not in the application. These are all new arguments that are being raised for the first time today in the materials to my recollection. I stand to be corrected. But the focus has been in the application and in the staff report on it's a binary choice, as they call it. Remove it. Don't remove it. Remove it. Don't remove it. There's been no analysis in the staff report or in the application as to the reduction in height to comply with the required setbacks. I calculated 105 feet would be a tower that would be compliant with the setbacks. One other -- the object -- or the purpose and intent is important also of this section of the Land Development Code. I think that was one of the questions that was asked. Regardless of whether or not there's changing technology, the code that's in existence today is the only code that you can consider, in my humble opinion. You cannot consider what maybe potentially could be in the future as far as changing criteria based upon changing technology. And part of the purpose and intent, as outlined in 5.05.09.A of the Land Development Code, intended to minimize, where applicable, adverse visual impacts of towers and antennas through careful design, siting, and vegetation screening. So that is a significant matter especially for abutting residential properties, which we have in this case. Furthermore, to avoid danger of potential damage to adjacent properties from tower failure. And we've heard again today not what's in the materials but a presentation that is attempting to sway you to convince you to recommend a granting of this variance. We would submit that any proposed -- any hardship is self-created. They've given you an all-or-nothing approach in the application. And, again, I cite to the staff report. It says, removal of the July 2, 2020 Page 25 of 59 communication tower would prohibit Verizon Wireless from providing reliable coverage. And on Page 109 of the packet, the literal application of the LDC in the instant would require the communication tower to be removed. Again, we submit that it can be reduced in size to meet the setback. The Land Development Code -- excuse me. The Growth Management Plan also has a criteria. It says, all new developments shall be compatible with and complementary to the surrounding land uses. That has not been analyzed at all. That's in Future Land Use Element Policy 5.6 of the Growth Management Plan. The minimum setbacks in the LDC, I would submit, are designed and intended to ensure that new developments of towers, because of their increased height, are compatible with and complementary to surrounding land uses. A reduction in a variance in this case to eliminate the required setback would result in a use not compatible with and not complementary to the adjacent residential properties. Again, we disagree that the literal application only requires removal. It could allow for reduction. And the purpose of the -- as I've articulated, one stated purpose is to avoid potential damage to adjacent properties and minimize adverse visual effect impacts. And we saw some photographs today -- again, not in your materials previously -- taken from various angles which we all know, depending upon where you take a photo and how you take a photo, it really may not be illustrative of the real one-the-ground circumstances. We also, if this -- we request you recommend denial, and we also request that if you are to recommend approval, that there be assurances provided to the owners of the Rockedge PUD that there would be no adverse impact on the development of their property consistent with their PUD. And one other aspect is the applicant keeps mentioning that the distance from the tower to the first developable parcel is a certain distance. That's not what the code says. The code says it's the distance to the boundary of the property that has the residential zoning. For all the forward going -- and hopefully you've had an opportunity to review our two objection letters -- we request that this recommendation for denial be provided to the Board of County Commissioners and, again, request a copy of the PowerPoint presentation. And just a note. We filed our first objection in October. We followed up last -- I've heard nothing from the applicant, nothing as to the rationale until today. I think that does a disservice to this board and to the community. CHAIRMAN FRYER: Thank you. MR. PIRES: Thank you. CHAIRMAN FRYER: No one is lit up. COMMISSIONER FRY: I am, but go ahead. CHAIRMAN FRYER: Go ahead, Commissioner. COMMISSIONER FRY: Mr. Pires, do you have any photos that would -- that would show the viewpoint of that property, the PUD, for the visual impact of the tower? MR. PIRES: No, I don't. COMMISSIONER FRY: Okay. Is it possible to get photos like -- I mean, why -- I guess I would love to see those. If part of your case is the visual impact, it would be nice to see what that visual impact is. MR. PIRES: I don't have those today, but I most definitely will for the County Commission. COMMISSIONER FRY: Okay. It sounds like, from what we've heard, the two-and-a-half times was somewhat related to guy wires and structures falling like trees rather than crimp points and falling within their own boundary. Is your only objection to this the fact that it never should have been approved in the first place and that there is a visual impact, or is there -- are there other concerns? MR. PIRES: The visual, the safety concerns, and that -- it's up to the -- it's not up to the property owners adjacent to show why it should not be approved. The burden is on the applicant to show why it should be approved and why there is a hardship and why -- and, again, they've given you an all-or-nothing proposition. And so, in my opinion, my presentation is they've not shown you that a literal application will work a July 2, 2020 Page 26 of 59 hardship. We heard some reference, and I'm sure the applicant will now have Mr. Compton up here to talk about -- and they showed a graphic of a reduction in coverage, but does that qualify as a sufficient hardship under the code to grant them this exception, to grant them this variance from the code? I would submit that it does not. Again, the application in the staff report focused solely on removal versus remaining. Today we heard for the first time about reduction in height. And it didn't indicate how that would be a hardship to the application by having the reduction in height. I mean, it talked about a reduction in possible service area. It doesn't say that it's a hardship on the applicant, though, to reduce the height. COMMISSIONER FRY: In your -- I guess one of the things I'm struggling with is, you know, we know that a mistake was made. I think it was overlooked by SBA and the staff at the time. Do we -- I guess I'm going on the assumption that it was an honest mistake on all parties. You seem to be implying that there was knowledge that the PUD was there during that decision-making process. Is that your assertion? MR. PIRES: Yes, because the adoption of the PUD occurred at a public hearing. It's in the official records of the county. And whether or not someone placed it on a map or did not timely place it on a map, in my opinion, is not relevant to the consideration. That PUD was in place 17 months before the permit was approved to build this tower. COMMISSIONER FRY: Okay. I certainly will love to hear from staff regarding that when we get to that. Thank you. MR. PIRES: Thank you. Thank you very much. CHAIRMAN FRYER: Mr. Schmitt. COMMISSIONER SCHMITT: Yeah. Tony, but just to clarify, of course, the mistake has been recognized, and based on the mistake, they are now applying for the variance. So we're not disputing, anymore, the zoning. We can dispute what came first, but the fact of the matter is, it now is -- was identified as a mistake. The structure is built, and now they're asking for a variance. So your objection is solely based on it does not meet the intent of the criteria of the LDC for a variance. MR. PIRES: Yes, sir. COMMISSIONER SCHMITT: So okay. MR. PIRES: Coupled with the fact that I don't believe they -- in my opinion they can't use that mistake of law as a basis for asserting that they should get it. And the criteria in the Land Development Code, in my opinion, do not submit granting the variance. It's a complication. COMMISSIONER SCHMITT: Correct, but they have every right to ask for a variance having discovered the mistake, and I believe it was -- basically, one application overlapped the other, and it was just a matter of the timing. But I won't get into the -- its history in regards to what happened with the zoning map. But the fact of the matter is, it is now -- what's -- it is a matter of record that it does not meet the requirements in the LDC, and the applicant is requesting an after-the-fact variance. MR. PIRES: Yes. And just one quick point. I think it's important. The Rockedge PUD was approved by the County Commission on February 11th, 2016. And, as we all know, there's plenty of notice before the Planning Commission -- COMMISSIONER SCHMITT: Yes. MR. PIRES: -- to adjacent property owners before the County Commission to adjacent property owners, of the zoning. So they were on notice. That property owner that is the property owner of the site who is the applicant was aware of the fact that there was this PUD being processed and ultimately was approved on February 11th, 2016. On June 8th, 2016, four months later, is when the SDP was applied for. So the property owner was fully on notice. Now they're asking for forgiveness for not paying attention to that notice. COMMISSIONER SCHMITT: Well -- but it's your assumption they knew. MR. PIRES: Well, the county's required to give notice. COMMISSIONER SCHMITT: It is a matter of public record, but based on what you just said, your position is that they moved forward knowing that they were in vitalization? July 2, 2020 Page 27 of 59 MR. PIRES: They moved forward knowing that the property next door was zoned RPD. CHAIRMAN FRYER: Now wait a minute. MR. PIRES: They had knowledge of the pending zoning. CHAIRMAN FRYER: You're not actually saying that, are you, sir? Aren't you saying that they knew or should have known? You're not saying they had actual knowledge, are you? MR. PIRES: They had -- in my opinion, if the county provided the requisite notice for the Rockedge PUD to be approved, they would have to have notified, by letter, the adjacent property owners and posted signs. CHAIRMAN FRYER: So you're here before us telling us that the applicant had actual knowledge that they were in violation of the code? MR. PIRES: No, sir. That's not what I said. They knew or should have known that the zoning was taking place, the rezoning of the Rockedge PD. If the county complied with its zoning notice requirements, they were on notice back in June. CHAIRMAN FRYER: Actual or constructive? You're not -- you're not standing here and telling us that there was a lack of good faith on their part. Perhaps they neglected to read their mail. They knew or should have known. Are we in agreement on that? MR. PIRES: Yes. CHAIRMAN FRYER: Okay. COMMISSIONER SCHMITT: That was my point. So, I mean, that was -- I don't think it was done willfully, but -- and, of course, it's staff responsibility to make sure that any application that comes in is in compliance. And it was a matter of whoever reviewed this, for whatever reason, the documentation and the staff was not updated in order to catch the mistake. But be that as it may, it happened. It's constructed, so we have two choices. Well, it is a binary choice here. Well, it's actually three. One, reduce the height of the structure, which probably, from an engineering standpoint, would be very difficult. That's why I asked about the construction of the -- so the second would be to remove it and put up a new pole, or third would be, of course, the variance. Those are, basically, the three choices. MR. PIRES: Yes, sir. COMMISSIONER SCHMITT: And one being to modify the existing pole, I don't think is going to -- from an engineering standpoint is going to work, but... CHAIRMAN FRYER: Thank you. You mentioned and you listed, and it was helpful that you did, some pertinent dates so that we could see the order of sequence, but I think you neglected to mention one date, and that was the date of May 12 of 2015. And on that date the applicant filed a request for its first site plan application with all the information that was pertinent to what was ultimately constructed, and that became a matter of public record and was available to anybody who would consult CityView. MR. PIRES: But the difference is no mailed notice, no posted notices provided to property owners for Site Development Plan. That's different than having the zoning action where you have notices in the newspaper, mailed notice, and posted notice on the property. It does not concur with site plan approval. CHAIRMAN FRYER: I understand that is a difference, and it's a significant one, but, nonetheless, the May 12, 2015, application was a matter of public record. Whether it got discovered by your client or not, it was a matter of public record. MR. PIRES: I hear you, but I don't believe that -- unless this Planning Commissioner Board is setting a new standard requiring that any applicant for a PUD search CityView for any surrounding applications, I don't think that's required. CHAIRMAN FRYER: I'm not setting any standards. I'm just asking you questions about the facts, sir. So when did -- when did your client first learn that a variance would be needed or sought or that there was a nonconforming use with respect to the tower? MR. PIRES: My recollection is when they received the notice from the county. CHAIRMAN FRYER: Okay. So then -- July 2, 2020 Page 28 of 59 MR. PIRES: Back in, I think, 2019 or '20. I can't recall the exact date. CHAIRMAN FRYER: So, really, for four or five years they were living with that tower not knowing that it was in violation of the ordinance, but when they discovered that it was, it was a matter of opportunity to be taken, correct? MR. PIRES: I disagree with that characterization as "a matter of opportunity." CHAIRMAN FRYER: How would you characterize it? MR. PIRES: It's a matter of concern. CHAIRMAN FRYER: Concern based upon a discovery a number of years after the fact. MR. PIRES: Of the fact that the pole is not compliant with the required regulations. Again, the burden is on the applicant, not on the surrounding property owners. CHAIRMAN FRYER: Well, I understand that, but I think that the applicant has made a prima facia case on certain important points here, and I think the burden of coming forward then shifts to you. MR. PIRES: It does not in my understanding. Maybe Jeff can contradict me. But in my opinion and my recollection of Florida law, it does not. CHAIRMAN FRYER: Well, we disagree on that. Let's see. So we've established that you're not -- you're not alleging bad faith on the part of the applicant, correct? MR. PIRES: No, sir. CHAIRMAN FRYER: And we've established that at least the dimensions of the tower were a matter of public record seven months before the PUD was granted, correct? MR. PIRES: I'm not conceding that because I don't know what plans were alleged to have been submitted back in May of 2015. CHAIRMAN FRYER: Well, all one would have to do would be to look at CityView and see those records, which I did, and sometime in May of 2015 that became a matter of public record. Let's see. Paul, do you have anything? COMMISSIONER SHEA: No additional questions. Thank you. CHAIRMAN FRYER: Okay. Thank you. COMMISSIONER FRY: I have a request. CHAIRMAN FRYER: Go ahead. May I ask staff to put up an aerial that will clearly show the tower site and the property that Mr. Perez is representing -- Mr. Pires. MR. PIRES: Yeah, thank you. And that's a good point, because in our objection we submitted the zoning map and also the aerial of the property, and it's -- Page 153 of the packet has the site plan for the RPUD, and Page 133 has the photograph from the Property Appraiser's website depicting my client's property in yellow, and the tower site is to the northwest of that, that triangle piece. COMMISSIONER FRY: What page was that last one? MR. PIRES: On Page 133 of today's packet is the aerial photograph. COMMISSIONER FRY: You are the green area? MR. PIRES: Yellowish green, I guess. COMMISSIONER FRY: So nothing is built there currently. MR. PIRES: That's the client's property -- I mean, that's the applicant's property there. Page 133. No, there are no buildings on the Rockedge PUD at the present time. COMMISSIONER FRY: It's still just trees? MR. PIRES: It's undeveloped. COMMISSIONER FRY: That's why you have no photos because you'd be in the middle of trees to take photos, right? MR. PIRES: I don't -- no, I didn't think about taking any photos. That's why. COMMISSIONER FRY: I gotcha. CHAIRMAN FRYER: Well, the applicant presented photos. MR. PIRES: Yes. July 2, 2020 Page 29 of 59 CHAIRMAN FRYER: On the issue of compatibility or unsightliness and the like -- and to me it seems that at that point, if I were you, if I were in your shoes, I would feel the need to come forward with photos showing that it was unsightly. MR. PIRES: I think we will do that now that -- those photographs were not submitted previous to today, and I'm sure there will be more photos for the County Commission meeting. That's the first time I saw that. And, again, Ray, correct me if I'm wrong, the PowerPoint photographs were not previously provided to staff. MR. BELLOWS: That's my understanding. CHAIRMAN FRYER: All right. Any other planning commissioners have questions for counsel? (No response.) MR. PIRES: Thank you very much. CHAIRMAN FRYER: Thank you. If not -- we're going to -- COMMISSIONER SCHMITT: I want to hear staff's rebuttal on this. CHAIRMAN FRYER: All right. Why don't we do it that way. Let's -- before we have petitioner's rebuttal, let's have staff answer some of the questions which have been raised, if -- Ray, would you mind? MR. BELLOWS: Do you have a specific question first? CHAIRMAN FRYER: Well, when I spoke with you by phone a couple of days ago, an explanation was given having to do with how this happened, things just got ahead of themselves, and I think it would be useful for the Planning Commission to hear that same explanation. MR. BELLOWS: For the record, Ray Bellows. The process starts with a pre-application meeting for Site Development Plan for use that's allowed by the zoning district. So there was no zoning change necessary. During the pre-application meeting staff will pull the official zoning atlas to look at surrounding zoning and look at the application's request and Land Development Code requirements. It's my understanding at the time of the pre-app for the communication tower Site Development Plan that the zoning map did not show Rockedge RPUD since it was previously approved. So they had no knowledge of it when reviewing at the time of pre-app. And as they went through the review process, that same zoning map was part of that review process. We have altered our process once our PUD or any PUD is approved. You now make sure that the zoning maps are updated immediately. I think at the time Rockedge was approved we held onto it not closing it out, meaning taking it through the process of getting the zoning maps updated. And there's several reasons. One was if there were any fees outstanding, we were holding onto it till we collected those fees. We don't do that anymore. We make sure the zoning maps are in place so that way a situation like this doesn't occur. CHAIRMAN FRYER: Thank you. Joe. COMMISSIONER SCHMITT: Yeah. I'm actually looking at Google Maps. I hate to give Google the credit for this but, clearly, even when you're along Sabal Palm Road and the other road, there are power line towers that are almost the same height closer to the -- what is it, Rockledge? MR. BELLOWS: Rockedge. COMMISSIONER SCHMITT: -- Rockedge PUD than this actual tower, and I -- just looking at this it's probably maybe -- the tower may be about 30-foot higher than some of these -- these are high-tension -- high power lines that run right down -- MR. BELLOWS: I've seen them as well. COMMISSIONER SCHMITT: -- along that as well. So it's -- I'm just looking at -- if you want to say the tower is obtrusive, well, then so are the power lines. So are the trees. So it's -- okay. Thanks. CHAIRMAN FRYER: Thank you. Ray, I believe we had other registered speakers. MR. BELLOWS: The one in person was William Compton, but I believe he's with the applicant's July 2, 2020 Page 30 of 59 team. MS. JAHN: That's correct. MR. BELLOWS: Is he going to speak? CHAIRMAN FRYER: If he's part of the applicant's team, Ms. Jahn, we'll have him speak during your rebuttal. MS. JAHN: Understood. I'm just approaching the mic so you can hear my response. Mattaniah Jahn, again, for the record. And Mr. Compton's only available for your questions. If you'd like him to give a further explanation, he can. CHAIRMAN FRYER: Okay. Thank you. Ray, who else? MR. BELLOWS: Eddy Garcia, and he's a virtual speaker. CHAIRMAN FRYER: Mr. Garcia, you've got five minutes. MR. GARCIA: How are you, ladies and gentlemen of the Board? Thank you so much for listening to our issue here. I am -- my name is Ed Garcia. I am the principal at Waterman at Rockedge. And the issue that we have is that we are currently probably two months now away from starting infrastructure and developing our site and building homes on the site. The tower, as it presents itself now, will be an issue in terms of visibility, a nuisance, and our problem is that we're not saying the tower should go away but, you know, the tower company -- Verizon is a very, very large company. And, you know, they have not at one point even reached out to us, not once, to try to remedy any problem, to try to come to some kind of a conclusion or try to come up with some kind of feasible alternative even as a dialogue, not once. And this has been ongoing now for months. And to say that, yeah, there was a mistake that was made, but it wasn't a mistake on our part. We did everything we were supposed to do. It wasn't our mistake. And the way that it's been presented, it's almost like we are left to defend ourselves when we did everything we were supposed to do, and it wasn't our fault that the maps weren't changed. And now we're being asked to just take it; move on. And I think that's a little unfair, especially when -- the fact that a company like Verizon and their size and their economic power wouldn't even reach out to a neighboring property owner that they have a potential issue with to try to come up with some kind of a compromise. What does it cost to have a dialogue with a neighboring property that you currently may have an issue with? It costs nothing. And they would be able to stand up in that hearing today with a straight face and say that at least they tried to reach out to the neighboring property and come up with some kind of a compromise and a solution and none was able to be reached if that were the case. But they haven't so much as reached out to us at all. And that is the issue that I'm having a problem with, because we did everything that we were supposed to do and then some. And those 266 homes that are going to be built on that site, they're going to be paying taxes to the county. So they should be considered as well -- because they are future homeowners -- over the need of a giant Verizon company that could make modifications if they had to, can reduce the size of the tower if they had to, and it wouldn't hurt them one iota. It wouldn't change their stock price one iota. But, yet, everybody is willing to allow the 266 homes that are going to be built there to be the ones to make the sacrifice. And I think that's wrong. At the very least, we are asking that you table this item and allow for some dialogue to take place to see if there's a compromise, to see if there's a solution that can be reached where both parties can come out feeling at least some satisfaction even if both parties didn't get exactly what they want. That is all we're asking for. I don't believe that that is too much to ask for. I ask you -- that you either table this item or deny it at this time on my behalf, my company's behalf. I respectfully request that you table this item or deny it. I thank you for listening to me, and I appreciate your time in these troubling times. CHAIRMAN FRYER: Thank you. Before we lose you, I've got two planning commissioners who have lit up. Do they -- Commissioner Schmitt, do you want to ask a question of this caller? July 2, 2020 Page 31 of 59 COMMISSIONER SCHMITT: Yes. The question, basically, is you said they didn't reach out. But had they reached out, I guess, what solution are you looking for? Because am I -- I have to use the word assuming that you're -- you're looking for them to reduce the height, which they could legally. What other solution are you looking for? MR. GARCIA: Well, we don't know because we don't know what -- we haven't had a dialogue to come up with some kind of alternatives. They haven't presented us with any other alternatives. COMMISSIONER SCHMITT: Well, let's talk about alternatives. MR. GARCIA: Reducing the height could be one. Yes, moving the towers somewhere else. We could potentially have another -- another piece of property or a place somewhere on our property where it wouldn't affect us, where it would be closer to a conservation area away from the properties in itself. There's a lot of alternatives. Do they -- do they amount to some cost of money for them? Sure, but why should we be the sole ones to bear all of the burden and the hardship? That wouldn't be -- that wouldn't be really fair of us when we did exactly what we were supposed to do. It wasn't our mistake. COMMISSIONER SCHMITT: Well, for clarity, what burden and hardship are you experiencing? MR. GARCIA: Well, first of all, you know, there's a bad -- people don't like to see towers in general, okay, whether there's -- whether there's health issues associated or not, nobody really knows, but I can tell you that homeowners don't like to physically see a cell tower anywhere near their house. That's number one. I don't believe that anybody can say with a straight face that they're okay with living within visual site of a cell tower. I don't think anybody likes that. First of all, whether it's bad or not, nobody can physically tell me that there's no health issues associated with living next to a cell tower, number one. Number two, there's a perception that it's bad, and when you physically see it, that perception increases. So that's -- you know, that in itself is a problem, and it creates a hardship for the homeowners and the homes that we are trying to sell in the community. COMMISSIONER SCHMITT: Okay. Well, you made several points. But do you have any basis that -- facts that back up your points, or is this basically your opinion? MR. GARCIA: That is my opinion. COMMISSIONER SCHMITT: Okay. Thank you. CHAIRMAN FRYER: Thank you. MR. GARCIA: That is my opinion. CHAIRMAN FRYER: Let's go to Commissioner Fry now. COMMISSIONER FRY: Mr. Garcia, I guess a question I see, from the presentation by the applicant, it appears that there is somewhat of a benefit to you by having the current tower of a higher height in place in that your cell coverage for your residents might be better. And I know -- so I wanted to ask you about that, because in today's world we live and die by our cell coverage as people. So I guess my question for you is, does that benefit -- do you not believe there is a benefit from the additional tower height, or do you just believe it's not significant? MR. GARCIA: Well, I mean, I think from our standpoint when we're selling single-family houses, we never get a question about what cell coverage is in the area and how strong our cell coverage is. When somebody is looking out of their backyard -- remember, right now you have a totally vegetated site, but within two months, you know, the site will be cleared, so that cell tower will become even more visible. So from a sales standpoint when I'm trying sell a house and I'm taking a buyer out to a location where that house will be, the last question I'm going to get is how good is my cell tower service going to be in this location? They're going to ask me, well, am I going to be able to see that cell tower? Well, kind of, that cell tower is sitting there. Is there a bad -- you know, is there a health risk with having that cell tower there? Those are the questions I'm going to get for certain. So from my standpoint, whether it's good or bad from a coverage standpoint -- I mean, obviously people have been getting coverage there for a long time. It's not like you drive by Sabal Palm Road and that 951 and your cell completely dies, okay? That's not happening. July 2, 2020 Page 32 of 59 So whether they want additional coverage or stronger coverage or more coverage, you know, those are -- those are points that I can't educationally speak on, but I'm just telling you what our hardships are. And how, you know, this creates a problem for us. And the fact that we haven't even been contacted about a dialogue or an explanation or -- educate me, because I'm not educated in the cell tower business. I'm educated in the development business, so that's where I have to kind of watch for our interest. CHAIRMAN FRYER: All right, sir. I'm going to ask Commissioner Shea if he wants to weigh in on this. COMMISSIONER SHEA: Probably just more trying to understand the details of it. Again, if -- when you -- when the land was purchased, it was zoned agricultural, right? MR. GARCIA: No, sir. The land was purchased -- it was already a PUD known as Rockedge PUD. COMMISSIONER SHEA: Okay. MR. GARCIA: So the Rockedge PUD has been in place for a very long time, since the early 2000s. There was an additional 30 acres of land that was added to the original Rockedge PUD, and then we went through a new PUD to add the 30 acres of land. But the Rockedge PUD has been in place since the early 2000s. So it has been on the radar for many, many years. It was not agricultural land when we purchased it. It was an existing PUD. COMMISSIONER SHEA: Okay. That's all I have. Thanks, Ned. CHAIRMAN FRYER: Okay. Thank you. Thank you. I have a couple of questions here. First of all, Mr. Garcia, you've mentioned that the applicant didn't reach out. So I guess my question for you is, is once this application was filed, did Waterman reach out? Are you still there, Mr. Garcia? MR. GARCIA: I am. At that point, we went ahead and hired counsel because we, you know, didn't know how to deal with this situation. So I don't know if counsel reached out or not, but that's where I left it. CHAIRMAN FRYER: Okay. So it sounds like, perhaps, there was no reaching out in either direction. What surprises me a bit is that the objectors' case, if you will, seems to rest largely on unsightliness. And under the circumstances, I mean, we've got a tower that's already up. You'd think that there would be pictures brought before us to take a look at so that we could make our own judgments about sightliness or unsightliness, and that just doesn't seem to be the case. Also, the petitioner introduced evidence of coverage loss resulting from reduced height with graphics that illustrated, rather persuasively, certainly clearly, of how much coverage would be lost if the height were reduced, and I don't think that there was anything brought forth by the objector to challenge that evidence either. So those are -- those are my concerns at this point. Any other registered speakers, Ray? MR. BELLOWS: Shawn Martin. CHAIRMAN FRYER: Mr. Martin, you have five minutes, sir. MR. MARTIN: Hi there. Shawn Martin with Waterman Development Group. I'm the Waterman Group's land development manager. And I guess I don't have a ton to add to what Eddy's said, but I would like to speak to the timeline a little bit. I believe the tower -- we learned of the tower during a site visit back in 2018, which I believe was shortly after construction, and at that point we brought it up -- I brought it up to the county staff, Chris Scott and Matt McLean, particularly. We had various emails and discussions on it back in 2018. So by no even was it, you know, in place for years at all before we found out about it. So in 2018 we brought it up to staff, learned that there was an issue with the zoning map and everything else, and I believe at that time, Matt and Chris let the applicant know of the issues and I think then waited close to probably a year before any kind of variance application was submitted. So we -- obviously, we did not sit on the application one bit. It was -- we notified county staff immediately when we learned -- when we saw it, followed up with looking at the county code, and that was July 2, 2020 Page 33 of 59 determined back in, I think, late summer to early fall of 2018. So I guess that's the main thing in that regard that I had to follow up on. CHAIRMAN FRYER: All right, sir. Thank you. I don't see anybody lit up. Commissioner Shea, do you have any questions of this witness? COMMISSIONER SHEA: No questions. CHAIRMAN FRYER: Oh, Commissioner Schmitt is lit up. COMMISSIONER SCHMITT: I have no questions, but I did ask staff to put a picture -- this is a picture from Sabal Palm Road as the -- right at the entrance to the nursery, because anywhere else it was all obstructed by trees, but that -- you could see the tower in the background there. But this is from Sabal Palm Road. I didn't do it from Rockedge. You'd have to go all the way around to the north side. But that is the -- that is actually the tower. You can see it. I don't know, Ray, if you want to move it around. That is the tower we're talking about right -- yeah. That's the tower. And, of course, this perspective -- and I'm not in any way making a judgment, but this perspective, it does show the height of the power lines, but those power lines probably are -- probably 50 -- 30 to 50 feet shorter. I don't know. I didn't go out and measure it. But I just wanted the rest of the commissioners to understand what we're looking at where the tower is existing and, like I said, that's from Sabal Palm Road. If you went up that road on Google Earth, you just -- you can't see it because it's all obstructed by the vegetation. CHAIRMAN FRYER: Thank you. All right. Ray, do we have any other registered speakers? MR. BELLOWS: No one has registered. CHAIRMAN FRYER: Do we have any unregistered speakers, people who would like to be heard on this matter? (No response.) CHAIRMAN FRYER: If not, I'm going to call upon the applicant to provide any rebuttal that she wishes. MS. JAHN: One moment while I get settled here. I apologize. CHAIRMAN FRYER: That's all right. MS. JAHN: Mattaniah Jahn again, for the record. I also have Bill Compton with me. I'm going to try to go -- there was quite a bit that was thrown out there. I'm going to try to go through it top to bottom. So starting off with the concept that everyone was on notice. SBA's in a somewhat peculiar -- or somewhat unique position in that they are a tenant, not a property owner, so they would never have received the notice of the neighboring parcel being rezoned. Additionally, the whole concept of constructive notice is to avoid willful blindness. So the case they teach you in law school is that a person buys a piece of land, sees vents coming out of their property, and they -- and they later claim they had no idea that there was a gas line there. SBA did the exact opposite of that. They subjected themselves to the jurisdiction, to the actual record keepers and, unfortunately, through a mistake of process, human institutions, that was not caught until after the monopole was constructed and we had steel and antennas in the air. I'd also like -- if I could have my PowerPoint back, please. Thank you. So the developer/objector discussed the intent of your code. And it is true that one of the objectives of your code is to minimize the aesthetic impact of communication towers, but another objective that you have to -- you have to balance against that is to minimize -- is a call to minimize the overall number of towers in the county. Specifically, your code states under 5.05.09, Sub A, after the discussion about aesthetics and tower failure, to maximum the use of new communication towers and thereby minimize the need to construct new towers, to maximize the shared use of specified tower sites and the need for additional tower sites implied within the county. July 2, 2020 Page 34 of 59 So you're not just thinking in terms of since a communication tower is a piece of infrastructure, and it does serve an overall area. It's not just the parcel that it's on versus the neighborhood parcels. You have to keep into account the fact that changing of the design of the monopole will affect other property owners where there's already houses on the ground and people have owned their houses for years. And I'll draw you back to the RF propagation maps showing a shortened height. So with this map, this would show what the broadcast would be like from a 100-foot-tall site. You're looking at gaps in the Lely Resort area and the Veronawalk area. We're concerned about sites that have -- about house properties that have never been built. What about those property owners? I'd respectfully submit that -- let's see. I'd also like to draw your attention to the standard -- the burden of proof under the variance section of your code, because SBA and Verizon still contend that a hardship would be visited upon them through even needing to shorten this communication tower. But the code does not require one to go that far. The actual burden of proof is practical difficulty, which is a lower burden of proof. And so we respectfully submit that we've surpassed that. I agree with Mr. Bellows that the process of this misunderstanding occurred because there was an overlap between when SBA began their pre-application meeting and when the actual rezoning came in on that south acre or that south portion. You saw on the plans that SBA was attempting to avoid residential in the area by locating to the southern end of that parcel. Moving down. There was a discussion that -- there was a discussion that SBA never reached out to the developer/objector, and that's simply untrue. I actually reached out to Mr. Martin shortly after this -- their complaint was brought to SBA's attention. The product of that conversation, ultimately, was not fruitful. To the extent that you've heard discussion about environmental effects of RF emissions, I respectfully submit that the Telecom Act in 1996 prohibits that consideration by this board and that that evidence is -- that information is not properly before you as competent substantial evidence to base your -- to base your decision upon. And now -- and now, if I may, I have Mr. Compton available, and he can give a very quick presentation on the RF need necessary. CHAIRMAN FRYER: Before that, Commissioner Schmitt's light's on. COMMISSIONER SCHMITT: I just -- one question. Just to the east of the tower is a structure on the property. What is that? Is that a home there? I'm looking again at the aerial. MS. JAHN: Let me switch back to that on my monitor. Yes. COMMISSIONER SCHMITT: Is that -- that's a home right below where it's the two letters "ln" lane; that's a private home? MS. JAHN: Yes, sir. COMMISSIONER SCHMITT: And are they the property owners of that entire property, and they lease the site for the tower? I'm just trying to understand. Well, I guess the real question is, have you -- is this property owner in objection in any way, shape, or form in regards to this tower? MS. JAHN: No, sir. The property owner is not. So just for back story on this property owner -- COMMISSIONER SCHMITT: Yeah. MS. JAHN: This property belongs to an owner who used to live on the parcel and now is in the care of family, I believe, down in Florida City. COMMISSIONER SCHMITT: Okay. MS. JAHN: She owns the entire triangular parcel and the roadway parcel for Melrose Lane, and she leased this portion to SBA. COMMISSIONER SCHMITT: Okay. And then there's a -- I'm not showing on yours, but I'm looking again on an aerial on my computer. There looks like another structure/home to the west, almost directly west. I see a pool in the background. That's on Red Bird Lane. There's a home there. Have you heard anything from that resident in regards to any objection or any issues with the size of this tower? MS. JAHN: No, sir. Mattaniah Jahn again. No, sir. We have not received any objections. July 2, 2020 Page 35 of 59 Additionally, this monopole exceeds the required separation from that residence. COMMISSIONER SCHMITT: Okay. MS. JAHN: Your separation fluctuates, so in that direction, it's actually only 50 percent tower height. COMMISSIONER SCHMITT: And I just have some questions of staff as well. CHAIRMAN FRYER: Commissioner Fry. COMMISSIONER FRY: One question. You showed the coverage area at 150 feet, the current height, and also at 100 feet, the diminished area. For the Rockedge PUD that's adjacent to this property -- to the tower, would that reduction have any impact on their cellular coverage? MS. JAHN: Yes, sir. From the RF propagation maps, you see that it would -- this is the full coverage right now at 150 feet, and then this is coverage at 100 feet. So it would -- essentially, coverage of the Rockedge PUD would evaporate. So there would be no -- there would functionally be no coverage. To the extent that the landlord -- or that the developer/objector has stated that there may be some coverage out there currently -- there's actually case law on this. Once a carrier identifies a certain -- a specific use pattern such as, in this case, in-home coverage, that is -- the absence of coverage sufficient to serve that use pattern is a gap in coverage, even if there's a lower level of coverage available. And I can pull that opinion up if you need it. COMMISSIONER FRY: If what you're saying is that when we have limited signal strength, our coverage suffers and we suffer, then I get that. MS. JAHN: Yes, sir, to the point that the federal courts even recognize that. COMMISSIONER FRY: So you're saying that your map shows that by reducing the height to 100 feet, the coverage of the Waterman/Rockedge PUD would be diminished significantly? MS. JAHN: Yes, sir, and I can actually have Mr. Compton come up and speak on that. COMMISSIONER FRY: Who is Mr. Compton? MS. JAHN: Bill Compton is the RF engineer for Verizon who is assigned to this site. He actually prepared the propagation maps that are on your -- that are the PowerPoint, and he is available today. COMMISSIONER FRY: I'd definitely like to hear from him, and I have one other question for him as well. MS. JAHN: Absolutely. Mr. Compton, please step up. State your name and address. MR. BELLOWS: Go to the center one. MR. COMPTON: Hi. My name is William Compton. William Compton. Address is 7701 East Telecom Parkway, Tampa, Florida. I'm not familiar, actually, with exactly where this PUD that they're talking is. Can someone show it to me on the actual map? MS. JAHN: Mr. Compton, it is immediately to the southeast and north. MR. COMPTON: Yeah, absolutely. So something that's also not being mentioned is in the good old days of 2G and 3G technology, basically, as long as your phone had coverage, it actually had a connection with the tower. If you sustained a phone call, you were good. That was all you needed. Newer technology, 4G, and even more specifically 5G technology going forward, the actual connection is what we call adaptive modulation. A good example of that would be if I held up a piece of paper right here in front of the Board with standard font, no one sitting there would probably be able to read it. If I held up a huge letter A, you'd be able to read that A. That same amount of information getting through at the distance you are, basically, kind of illustrates what we can do from an RF perspective. So the closer you are to a cell site, the finer print, the more information you can get through from an RF standpoint. Like I said -- I'm kind of dumbing down the scenario but, like I said, it's called adaptive modulation that's out on the web. It's -- in the earlier days the technology was very proprietary and kept under close guard. July 2, 2020 Page 36 of 59 The 4G technologies and going forward, they're kind of universal. They're nation -- not a nationwide. They're worldwide. So any of the standards can be read so, therefore, we can share them with zoning boards and that kind of stuff. We're not sharing any proprietary information for Verizon Wireless because T-Mobile's using it. Sprint's using it. Every other carrier's using it. COMMISSIONER FRY: If these people are only a couple hundred feet away, and you're talking about the reduction of 150 feet to 100 feet, the coverage map seems to show that their coverage would evaporate largely. MR. COMPTON: Right. COMMISSIONER FRY: But properties in other directions seem to have coverage. Does it vary by direction for some reason, or is it just purely a measure of the height of the trees and other obstacles? MR. COMPTON: Yeah. One thing that's kind of hard to pick up is -- actually, on the map, if you look at the map on your computer screens, there's actually red, green, and blue little pie wedges coming out right where the sites are. That graphically illustrates the direction of the antennas on the cell towers. Early cell technology, we basically had what we called an omni site. It covered 360 degrees around the site and, therefore, everybody locked onto that site that was in any direction. As we needed more capacity, what we've done is we've done what we've called sectorization. So each one of those pie sectors can carry the same amount of traffic as that big overall site, but we've basically taken the coverage area of the site and divided it into thirds so we can get more capacity out in the areas. There is technology -- we can go to four sectors now. Once we go beyond that, there's limiting factors that basically make it so it doesn't make it worthwhile to go to 30 sectors or something like, but, basically that shows you why some of those sector wedges are going on -- the coverage is going out further in directions, because there's basically a directionality to that antenna. COMMISSIONER FRY: If you reduced it to 100 feet, would you be able to change the antenna pattern in order to restore coverage in that area for that development and other properties beyond that? MR. COMPTON: For that development right underneath it, absolutely. Well -- if we were to lower it to 100 feet -- that development underneath it, the problem with that is back to that adaptive modulation. If you're not within a certain distance, the further you go away from a cell site, the further you're -- the less service level you get. The slower speeds would be what most people recognize as -- so if you ran a speed test or something like that and you're five miles away from a cell site, you're going to get very slow speeds. If you're right underneath the site, you're going to get very fast speeds. That is directly functional to, once again, are you reading a full sheet of paper sitting here, or are you reading just the letter A, and now I have to hold up the letter B to start belling out a word to you. COMMISSIONER FRY: But their distance from the cell tower would not change. Only the height of the tower would change. So how does that impact their service? MR. COMPTON: Because, once again, it's a function of the distance and also, when we're trying to -- if you try and cover further away -- there's only so much energy that we can get out of an antenna. And if I want to cover you, I don't cover this gentleman. I don't cover this gentleman over here. I'm covering that way. So if we were going to try and make up for the coverage loss -- because that would be our first primary factor. If Verizon Wireless was faced with the concept of lowering this site from 150 to 100 feet or 105 feet, whatever that height is, our first primary concern is to try and get coverage back out to those far users. They're the customers that are on it today so, therefore, there would be more energy there. Less energy right underneath the tower. COMMISSIONER FRY: Okay. So you have a limited amount of broadcast power, and you have to basically aim it where you need it; is what you're saying? MR. COMPTON: Exactly (unintelligible). THE COURT REPORTER: I'm sorry. CHAIRMAN FRYER: Could you slow down, sir? THE COURT REPORTER: I don't even know what you're saying. July 2, 2020 Page 37 of 59 MR. COMPTON: Sorry. Yeah. The RF engineers, we kind of reference -- it's kind of like trying to wrestle an old waterbed mattress. You kind of pick it up in one direction, and all the water goes the other way. It's -- RF is the same kind of thing. We're trying to direct it -- we're trying to get a fountain hose going in a certain direction. CHAIRMAN FRYER: Sir, please slow down. MR. COMPTON: Sorry. COMMISSIONER HOMIAK: I don't think he can talk slower. MR. COMPTON: I'll try. COMMISSIONER FRY: One last question, sir. Over here. A lot of concern these days about RF signals, radiation; 5G has a lot of concern about impacts on us. Is there any -- what are the concerns -- viable concerns about the radiation impacts of being close to a cell tower? MR. COMPTON: Okay. From the tower itself -- COMMISSIONER FRY: Speaking very slowly, of course. MR. COMPTON: Very slowly. From the tower itself, basically, once your -- the FCC recognized this. Once you're 30 to 50 feet away from an antenna, even if you're right in front of the antenna, basically we're allowed to build sites as long as we're using -- let me back up. All the equipment that Verizon uses -- Verizon doesn't build a cell phone. They don't build a tower. They don't build the radios that go on the tower. They don't build the antennas. All of those pieces of equipment are type accepted, and what that means is -- most people are familiar, you flip over your toaster at your house, and it says, underwriter laboratories, UL listed. What that means is someone has tested that particular article and made sure it's not going to burst into flames with a bagel in it or anything else. Basically, that same type of testing is done. That's part of the reason for the 1996 Telecom Act in that what we're actually implementing out in the field, the FCC has already tested. They've done every different scenario of that radio, of this different antenna, this different height or whatever, and they've basically said that, intrinsically, as long as Verizon stays within those guidelines, which we have to maintain because we're an FCC wireless service, we have to actually maintain those guidelines. So we maintain those guidelines. We're tested once a year on every single one of our cell sites. We maintain all that documentation for the FCC. COMMISSIONER FRY: So if you're more than 30 feet away from the tower, you're not at a significant radiation risk; is that what you were saying? MR. COMPTON: That's basically what I'm referring to, because nowadays the new thing is or -- is small cells. How close can you get to a small-cell antenna? And a lot of times the limiting factor on the small-cell antenna is we can't go too low because we don't want to get too close to people for that RF emissions problem that you're talking about. So a lot of times you'll see this. Well, why can't you go at the 10-foot light pole that's in this neighborhood? We're too low. COMMISSIONER FRY: Thank you. MS. JAHN: If I may, just to follow up on Mr. Compton. Mr. Compton, are Verizon's facilities compliant with FCC regulations? MR. COMPTON: Absolutely. At all times. MS. JAHN: When you said standing in front of a 30-foot distance from an antenna, did you mean directly in front on same level of that antenna? If you were -- if the antenna was mounted on the ground and you were standing in front of it, that's the distance you were referencing, correct? MR. COMPTON: That's correct, which, obviously, 100-foot monopole, 150-foot monopole is pretty much impossible. MS. JAHN: Additionally, do objects in the foreground -- if the tower becomes shorter, do objects in the foreground present more scattering effect than they would have if the tower was taller? MR. COMPTON: Absolutely. That was the reason for my illustration in the map where it was the crude drawing where I basically showed the height of a tower and all the clutter that was involved. The tower -- the antenna -- the trees and that kind of stuff in the way. That's on the screen right now. That was a July 2, 2020 Page 38 of 59 reason for my illustration of that. Basically, the lower we go. The more we get into the clutter. Instead of seeing you above everything, we're now playing -- actually, RF is coming through objects. COMMISSIONER FRY: Thank you. CHAIRMAN FRYER: Thank you. No more speakers. MR. BELLOWS: No more speakers. CHAIRMAN FRYER: And rebuttal is complete. MS. JAHN: If I may just bring the Commission's attention to one more thing under RF emissions. Subjective evidence basically saying, "well, I can get a call out there" is not enough to refute the testimony and studies of an RF engineer. CHAIRMAN FRYER: Okay. Thank you. MS. JAHN: So... CHAIRMAN FRYER: All right. With that, we will close the public speaking portion of this hearing and deliberate at the Planning Commission level. COMMISSIONER SCHMITT: I have -- CHAIRMAN FRYER: Oh, I'm sorry. Sorry, Joe. I didn't see you. COMMISSIONER SCHMITT: Question of staff. Where did staff go? Tim? CHAIRMAN FRYER: Sure. Go ahead. MR. FINN: Yes. Hello. For the record, I'm Tim Finn. COMMISSIONER SCHMITT: Tim, questions. We heard testimony regarding cost, price, and everything else. Is stock price an issue in regards to a variance, whether an applicant can afford or not afford or stock price -- the impact on stock an issue? MR. FINN: No. COMMISSIONER SCHMITT: Is cost an issue? MR. FINN: No. COMMISSIONER SCHMITT: Is the wealth of the applicant an issue? MR. FINN: No, it's not. COMMISSIONER SCHMITT: The size of the business an issue? MR. FINN: No, it's not. COMMISSIONER SCHMITT: Okay. I just want to make -- put that on the record. That has nothing -- all those issues have nothing to do with it. MR. FINN: No. COMMISSIONER SCHMITT: Does the stated impact on a local community on property value or subjective valuation that there may be an impact to property value in and around the facility -- a vicinity of the tower have an impact on the decision? MR. FINN: No, it does not. COMMISSIONER SCHMITT: So none of those issues are relevant in this case? MR. FINN: Right. COMMISSIONER SCHMITT: The only issue is the fact that -- the variance request and what Mr. Pires stated in regards to the reasons for denying it, but all those other issues that were discussed are irrelevant? MR. FINN: Right. COMMISSIONER SCHMITT: Okay. Thank you. CHAIRMAN FRYER: Thank you. Any other questions from the Planning Commission? (No response.) CHAIRMAN FRYER: Let's now close the public hearing portion of the meeting and enter the phase of Planning Commission deliberation and discussion. Who would like to lead off? COMMISSIONER SCHMITT: I'll start. The issue is -- it's a serious issue. The thousands of applicants that come in and across the desk -- and, of course, during my time in staff, so it's probably a bit July 2, 2020 Page 39 of 59 jaded view. But errors are made. And it's unfortunate if the staff made an error, but errors are made. It's a judgment call. Staff reviews an application based on the criteria that they have in front of them. And we can point figures -- fingers. I guess maybe we can have hangings at noon until morale improves or whatever but, regardless, the -- mistakes have -- they do happen. But in this case, I think it was a matter of timing. And the application was submitted. It was approved based on the material at that time. And I know Mr. Pires refutes that based on the sequence of events, but I really don't find any significant hardship. The hardship, of course, would be -- it's stated, but the choice here is reduce the height, and the only way you can reduce the height is to replace the pole or move the pole, and I don't think there's sufficient justification to warrant that decision. I would support the petition, the variance. CHAIRMAN FRYER: Okay. Thank you. Any other planning commissioner want to weigh in? Go ahead, Karl. COMMISSIONER FRY: Well, I am sensitive to the Waterman/Rockedge PUD's sensitivity to the aesthetic concerns; however, in the absence of photos, I'm not be able to even really evaluate the extent that that might be detrimental to them in the selling of their properties. I do think that they have a mixed bag in that, while this was built -- maybe, you know, approved without the zoning maps being updated, they have a taller tower which, in fact, results in better coverage for their residents. And whether they ask about that when they purchase the home or not, I can tell you that every person in this room -- I'm going to go out on a limb and say every person in this room is happier to have stronger cell coverage than not, and it gets more important every day in our lives. So I don't believe I could vote against this based on that exception. I would invite them, as Mr. Pires said he would do, take photos to the County Commission if it gets approved here and state your case there and solidify what the hardships are on this homeowner. But we are -- I think there's demonstrated a very significant hardship not only on Verizon in reducing the cell tower height, partly because of the new engineering of these poles that Joe eluded to where we have a crimp point. They can't just cut it off at 100 feet and put the antennas back on. They have to reengineer a crimp point at a lower ratio of the new height, and that would be rebuilding from scratch. So I'm convinced that is a significant cost and hardship to them. I'm also of the opinion, from all the evidence we've heard, that it's a significant hardship on many residents that are now enjoying the benefits of the tower at its current height that would lose coverage. So for those reasons, while I'm sensitive to the -- that's kind of a raw deal in one way for the Rockedge PUD. It's also a blessing, I guess, that down the road residents may appreciate it. I'd have a -- I could not -- I have to vote in favor of it based on what I've heard. CHAIRMAN FRYER: Thank you. Any other planning commissioners wish to be heard? If not -- COMMISSIONER SHEA: Ned? CHAIRMAN FRYER: Yes, Paul. Yes, go ahead. COMMISSIONER SHEA: I agree with everything that both Joe and Karl have said. I have been to the site, and this idea of something being objective is very subjective. I've been to the site and looked at it in a lot of different directions, and I guess I didn't see, the way it's laid out, that it would be that much of an adverse impact on the residents of the newer homes. So I don't know that pictures would help that much on it. So as Karl and Joe said, I would support the resolution as well. CHAIRMAN FRYER: Okay. Thank you. Any other comments? COMMISSIONER HOMIAK: I'm going to support it, too. I agree with everything that's been said. And I think it's been there, and I think it's necessary for the cell towers and cell service for everyone now. It's necessary. And this is a variance, and I see that Rockedge had 10 of them, so -- and some of them were for less buffering, so, you know -- CHAIRMAN FRYER: Thank you. COMMISSIONER HOMIAK: -- it works both ways. July 2, 2020 Page 40 of 59 CHAIRMAN FRYER: I'd entertain a motion at this time. COMMISSIONER FRY: So moved, approval. If you want to read the number, I move for approval. CHAIRMAN FRYER: It's going to take me a minute to get that. We probably don't need to. COMMISSIONER FRY: Do we need to read it? CHAIRMAN FRYER: I don't think so. COMMISSIONER FRY: I move for approval. CHAIRMAN FRYER: Is there a second? COMMISSIONER HOMIAK: Second. COMMISSIONER SCHMITT: Second -- (indicating) second. CHAIRMAN FRYER: Any further discussion? (No response.) CHAIRMAN FRYER: If not, all those in favor of approval, please say aye. COMMISSIONER FRY: Aye. CHAIMAN FRYER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER SCHMITT: Aye. COMMISSIONER SHEA: Aye. CHAIMAN FRYER: Opposed? (No response.) CHAIMAN FRYER: It passes unanimously, five to nothing. Thank you very much. Let's see. I don't think it would be productive to start the next matter unless members of the Planning Commission would like to use 13 minutes to do so. We've got a hard stop at 12:00 noon. MR. BELLOWS: We have two public speakers that are attending virtually. Do you want to hear from them first or have them come back after the break? CHAIRMAN FRYER: What's the Planning Commission wish? COMMISSIONER FRY: I'd love to use the time and hear from them, if there's no objection. COMMISSIONER HOMIAK: That's fine. COMMISSIONER SCHMITT: This is the Richland communications tower? MR. BELLOWS: Correct. COMMISSIONER FRY: We're already versed in some of the issues. CHAIRMAN FRYER: Yeah. We're tower experts now. Well, then, anyone who wishes to testify on this matter, please rise and be sworn in by the court reporter. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN FRYER: Okay. Disclosures, ex parte from the Planning Commission, starting with the secretary. COMMISSIONER FRY: Staff materials only. CHAIRMAN FRYER: Staff materials and communications with staff. COMMISSIONER HOMIAK: Nothing, just the staff materials. COMMISSIONER SCHMITT: Again, only staff materials. MR. BELLOWS: Mr. Chairman, I do have a clarification to make. I was informed the people who are participating online are actually with the applicant's team. CHAIRMAN FRYER: Oh, all right. Well, they can be able to get more time that way. All right. So those are -- those are the only people who are going to speak. MR. BELLOWS: That's correct. CHAIRMAN FRYER: Part of the applicant's group. COMMISSIONER FRY: Did Mr. Shea give his disclosures? I just -- CHAIRMAN FRYER: Paul? COMMISSIONER SHEA: I have nothing other than staff materials. Thank you. July 2, 2020 Page 41 of 59 CHAIRMAN FRYER: Thank you very much. All right. Well, in that event, I suggest that we -- that we break for lunch and take an hour and 11 minutes, an hour and, yeah, 11 minutes, and return here at 1:00 with another court reporter. Without objection, we're in recess. (A luncheon recess was had from 11:48 a.m. to 1:00 p.m.) P R O C E E D I N G S CHAIRMAN FRYER: Ladies and gentlemen, we have a quorum. Commissioner Shea is on the phone, and I know that Commissioner Schmitt will be in momentarily. So before we go to Item No. 3, I'm going to ask Jeremy Frantz to raise a question having to do with our meeting schedule, and then find out what the pleasure of the Planning Commission is on resolving this issue, Jeremy. MR. FRANTZ: Good afternoon. Jeremy Frantz for the record. We have five separate petition types, or items, currently scheduled for the July 16th Planning Commission meeting. It covers really only three separate projects. Two of those projects have requested to be heard in the afternoon due to some conflicts, and so that would only leave us with a very short agenda in the morning, and then either the need to break until the afternoon to hear the remainder of the meeting, or, you know, I wanted to put that to you all, if you had another way that you want to address those two items? CHAIRMAN FRYER: So two -- actually, four of these items are companions, two and two? MR. FRANTZ: Right. CHAIRMAN FRYER: And then the fifth item is a HEX matter? MR. FRANTZ: That's right. CHAIRMAN FRYER: Okay. So, I guess, the question is what do we want to do about the 16th of July? The -- both petitioners have requested an afternoon hearing. We really, undoubtedly, couldn't get to both of them before 4 or 4:30, I would have to guess. So the question is, do we schedule one of them, but then we're going to have some downtime, if we start the HEX item, undoubtedly we will, at 9:00. So what is the -- what's the preference of the Planning Commission? COMMISSIONER FRY: I won't be here so -- CHAIRMAN FRYER: So you don't care? COMMISSIONER FRY: -- I'm not committed to either outcome. CHAIRMAN FRYER: Okay. Karen, what do you think? COMMISSIONER HOMIAK: We can then start in the afternoon? CHAIRMAN FRYER: Well, I suppose we could do that. MR. FRANTZ: The expected hearing time that we have for that date is four and a half hours for all of the items. MR. KLATZKOW: Are these items that need to go to the Board of County Commissioners? MR. FRANTZ: Yes, except for the one that has not asked for the later time. MR. KLATZKOW: Okay. So it's not going to get to the board until September anyway... COMMISSIONER HOMIAK: Oh. CHAIRMAN FRYER: Well, so, let's look at -- I'm thinking about possibly doing away with the next July meeting, if we can find a way of scheduling these, that would work for everyone concerned. Do you have any suggestions, Jeremy? MR. FRANTZ: Well, you -- I mean, you could just continue those items, rather than trying to hear them on that date. CHAIRMAN FRYER: All right. MR. FRANTZ: We brought the -- brought the discussion to you all, just because we're trying to keep the schedule of the Planning Commission items moving forward. CHAIRMAN FRYER: Appreciate that. So you -- so we would continue the two that want afternoon slotting. Would we continue it indefinitely or to a date certain? MR. FRANTZ: We could avoid re-advertising if we did a date certain. CHAIRMAN FRYER: Okay. Would we -- how does September look? MR. FRANTZ: Well, I don't know that we need to go all the way out to September. We -- we could July 2, 2020 Page 42 of 59 potentially continue them to an August hearing date. CHAIRMAN FRYER: All right. Then would that make for a pretty long day for us? I mean, potentially, we can go to 4:30, I guess. If we don't make it, we just, you know, continue the items. MR. FRANTZ: We were hoping to the hear the RLSA related changes to the GMP on the 20th of August. CHAIRMAN FRYER: Okay. MR. FRANTZ: We could potentially look at scheduling a special meeting for that particular hearing, and leave these two petitions on that date, and that would not result in an extra long day for you then. CHAIRMAN FRYER: Okay. Good. And then we can -- the HEX matter is on for July 16th, we'll just defer that to the HEX? MR. KLATZKOW: You should have a HEX on board by then. CHAIRMAN FRYER: Good. So does that work with the noticing and the like? MR. FRANTZ: We'll work with the County Attorney's Office on that end. CHAIRMAN FRYER: Okay. MR. FRANTZ: And given that it's scheduled for the 16th, it's already been advertised for the Planning Commission, so we'll just work with them on that. CHAIRMAN FRYER: Okay. But we don't want to assemble together to just hear one HEX matter. MR. FRANTZ: Understood. CHAIRMAN FRYER: Good. All right. So I think -- what do you think, Karen? COMMISSIONER HOMIAK: We're doing them all on the 20th or on August 6th? CHAIRMAN FRYER: Well, first of all, I think what we're saying is that we're not going to meet on July 16th. COMMISSIONER HOMIAK: Okay. CHAIRMAN FRYER: And we're going to defer the HEX matter to the HEX, and the two items -- the two matters -- the two companion items that want to be heard in the afternoon, we will continue them to a date certain, so as to avoid the need to advertise, and that date certain would be? MR. FRANTZ: August 20th. CHAIRMAN FRYER: Both of them for August 20th? MR. FRANTZ: (Nodded head.) COMMISSIONER HOMIAK: Do they still need to be in the afternoon? MR. FRANTZ: I couldn't tell you that. CHAIRMAN FRYER: All right. Well, we'll continue them to August 20th, and we'll see what we can get accomplished. If they both need to be in the afternoon, we'll hear what we can until 4:30. Otherwise, we can rearrange the schedule. We can put the other one on the first meeting in September. MR. FRANTZ: Okay. CHAIRMAN FRYER: All right. But as long as we continue the two -- the four companion items to a date certain, we don't need to re-advertise? MR. FRANTZ: As long as it's within a certain period of time. If we're looking at August, then we should be fine. CHAIRMAN FRYER: Okay. So does anybody object to us not meeting on July 16th, in accordance with what we've just outlined? COMMISSIONER SHEA: Question. Question, Ed? CHAIRMAN FRYER: Yes. Go ahead, Paul. COMMISSIONER SHEA: Is there a problem just doing it on the same day and starting later? I guess I'm kind of -- I don't want to see us back things up too much, and since everybody has their date clear already on the 16th, it would be nice to get some of this behind us. CHAIRMAN FRYER: Well, that's a valid point. In the interest of full disclosure, I commute to these meetings from New York. So it would -- it would be helpful if I didn't have to come back, but that's just me, and we'll find out the will of the full Planning Commission. What's your thoughts, Karen? COMMISSIONER HOMIAK: Well, it doesn't make any difference to me. You could still be on remotely. CHAIRMAN FRYER: I can be on remotely, yeah. I wanted to -- COMMISSIONER HOMIAK: You won't be here? July 2, 2020 Page 43 of 59 CHAIRMAN FRYER: No. I wanted to save that possibly for August. COMMISSIONER HOMIAK: Oh, okay, August. Well, it doesn't matter either way. If you wanted to do them all remote, I don't -- CHAIRMAN FRYER: Well, Paul, as far as our scheduling is concerned, the way we would do this is, we're not going to work, you know, until six in the evening or seven in the evening. We will put in a full day from nine to, say, 4:30, and then we'll get as much done as we can, and to the extent that we can't complete an item that is -- that is under discussion, we'll just continue the balance of that hearing to the next meeting, and we'll catch up eventually. COMMISSIONER HOMIAK: So who else is -- Joe's not here. CHAIRMAN FRYER: It would be nice to know what Joe wanted to do. COMMISSIONER FRY: Joe is in the hallway completing a call. He'll be in shortly. Just as an input for your consideration -- CHAIRMAN FRYER: Yeah. COMMISSIONER FRY: -- I think as in looking forward, my hope is to continue on a regular schedule and not have to schedule -- minimize the number of special meetings that we have to call, if that was a possibility? CHAIRMAN FRYER: I'm thinking that we may not need a special meeting, and we need to be in management of our own agenda here, and we'll meet twice a month from nine until 4:30, and we'll keep doing that until we, you know, we clear the backlog. COMMISSIONER FRY: Okay. COMMISSIONER SCHMITT: What was it? COMMISSIONER SHEA: Is there a -- is there an option, Ed, why don't -- they asked us to move them to the afternoon. Well, why don't we say, "No, we'll do them it the morning. Can you make it?" CHAIRMAN FRYER: Well, I suppose we could. We try to accommodate when we can, and in this situation, you know, I think we can accommodate them without having to lay on a special meeting, or meeting after 4:30. It just may take us another couple of weeks to catch up, or possibly four weeks, but it seems to me, we'll catch up. Joe, what would you think about us not having a meeting on July 16th? Would that give you heartburn not to be able to come in here and be with us? COMMISSIONER SCHMITT: I will be very upset about that. So are we talking about just having a meeting in the afternoon? CHAIRMAN FRYER: Well, we could. COMMISSIONER HOMIAK: Two petitioners have requested the afternoon on the 16th. COMMISSIONER SCHMITT: Correct, on the 16th in the afternoon. Why not just schedule -- MR. BELLOWS: Well, there are only three items, so one would be over early in the morning and you'd have to take a longer break in between. COMMISSIONER SCHMITT: Well, why not just have all three in the afternoon? MR. BELLOWS: We can do that. COMMISSIONER SCHMITT: Schedule a 1:00 start, instead of a nine; is that doable? CHAIRMAN FRYER: It's doable. COMMISSIONER FRY: Does that present a hardship on you, Ed, with your -- CHAIRMAN FRYER: No, Vice Chairman Karen will preside and I'll dial in. COMMISSIONER SCHMITT: Or are you looking to just schedule for another day in July? I'm open. CHAIRMAN FRYER: My thought is, is that we've got a bit of a backlog, but, eventually, I would say, you know, two or four weeks later than originally scheduled, we should be able to work through that backlog, and my proposal is that we continue meeting two days a month, you know -- COMMISSIONER SCHMITT: Yeah. CHAIRMAN FRYER: -- semimonthly, and we'll meet from nine to 4:30 each day, and if we're in the middle of something, we'll continue it until the next meeting and we'll just do it that way, rather than have a special meeting. COMMISSIONER SCHMITT: That's fine. CHAIRMAN FRYER: Okay. And the HEX item that's set up for July 16, we can simply roll that over to July 2, 2020 Page 44 of 59 the HEX. COMMISSIONER SCHMITT: I believe that's the right thing to do. If we have a HEX now, and just defer all the HEX matters to the HEX. CHAIRMAN FRYER: Well, we don't have a contract with the HEX yet, but, presumably, I look to the County Attorney, and I assume that that is foreseeable? MS. HOMIAK: That was one that was requested for August. MR. KLATZKOW: Yeah, we're finalizing the agreement now. I just am hopeful to get the agreement onto the next board meeting, which means you can commence August, September. THE COURT: Okay. MR. KLATZKOW: I don't expect you guys to hear another HEX matter. CHAIRMAN FRYER: Good, that would be my preference, in fact. So, I mean, we can meet on Thursday -- on the 16th in the afternoon, and hear one of these two afternoon preference meetings, or we could -- we could continue them both to a date certain where they don't have to be re-advertised, and we don't have to come in on July 16th. COMMISSIONER SCHMITT: Doesn't matter to me either way. COMMISSIONER HOMIAK: Yeah, I don't -- CHAIRMAN FRYER: I would dial in from out of town rather than come in for one -- for one afternoon, which I -- and I prefer to be physically present. Although, Karen does a better job; is easier to look at, too. COMMISSIONER HOMIAK: Oh, no, I don't know. CHAIRMAN FRYER: Well, I'm going to make an executive decision. If there's violent disagreement, I'll retract it, but let's not meet on the 16th of July, and let's schedule the two afternoon items to the first available date certain, and we'll just come in here twice a month, and we'll see what we can get through. COMMISSIONER SCHMITT: That's fine. CHAIRMAN FRYER: Does that work? COMMISSIONER SCHMITT: Works for me. COMMISSIONER FRY: I would like to express my violent disagreement. CHAIRMAN FRYER: You who will not be here on the 16th? COMMISSIONER FRY: That's correct. COMMISSIONER SCHMITT: He was looking forward to lunch, that's all. COMMISSIONER HOMIAK: So our next meeting is the 6th -- CHAIRMAN FRYER: Of August. COMMISSIONER HOMIAK: -- of August? CHAIRMAN FRYER: Right. And we'll probably hear one of those afternoon items on the 6th, and there's a HEX item on the 6th, but that -- they've specifically requested us; is that what I remember you saying? MR. FRANTZ: That was for the 16th. CHAIRMAN FRYER: Oh. MR. FRANTZ: -- but you're deferring those to the HEX, so that will be fine. CHAIRMAN FRYER: Yeah. All right. MR. FRANTZ: And then we'll also work with the applicants, just to make sure they're not going to have another scheduling issue on whichever the next day is. CHAIRMAN FRYER: OKAY. All right. MR. FRANTZ: The CCPC meeting for your -- for the 16th was already advertised, so we'll have to make sure, you know, to continue those items appropriately, so that they don't -- aren't required to re-advertise if we can avoid that. CHAIRMAN FRYER: Good. Okay. Are we all on -- MR. BELLOWS: So what date are you moving it to? CHAIRMAN FRYER: We're not going to meet on the 16th of July. One of the two afternoon items will be put on for the 6th, and the other on the 20th, or you probably need to work it out with the petitioners. MR. BELLOWS: They might want to know what date, if they're watching. I think you have to say which petition is for the 6th. MR. FRANTZ: I recommend continuing them both to August 20th. July 2, 2020 Page 45 of 59 CHAIRMAN FRYER: Fine. That's, without objection, that's what we're going. Thank you, and thank you, Jeremy. MR. FRANTZ: Thank you. CHAIRMAN FRYER: Now we're ready for Item 3, and I apologize to the Petitioner for a little bit of a delay. COMMISSIONER SCHMITT: So no meeting on the 16th? CHAIRMAN FRYER: No meeting on July 16th; correct. All right. This is PL20180003229, the Ridgeland Communications Tower Variance. Again, our role is recommendatory to the BZA. All those wishing to testify in this matter, please, rise to be sworn in by the court reporter. (The speakers were duly sworn.) CHAIRMAN FRYER: Thank you. All right. Ex parte disclosures, starting with the secretary? COMMISSIONER FRY: Staff materials. CHAIRMAN FRYER: Thank you. Staff materials, same with me, and also a word or two with staff. COMMISSIONER HOMIAK: Just staff materials. COMMISSIONER SCHMITT: Staff materials only. CHAIRMAN FRYER: Okay. We'll begin with the applicant's presentation. Please proceed. Introduce yourself and proceed, after everything has been cleaned up. And, also, for the purposes of conducting this hearing and the subsequent ones, we've got two podiums here. So while one is being cleaned, the speaker can proceed to the other podium, and we can avoid the delay. Go ahead, ma'am. MS. KOLE: Good afternoon. My name is Katie Kole, K-O-L-E, with Hill, Ward, Henderson Law Firm, representing the applicant, which is Crown Castle USA. So, first, in light of that last conversation, I first wanted to say thank you for having these hearings, despite some of the virtual quasi-judicial nature of them. We are one of the applicants that has been sitting in limbo for several weeks and months at this point. So I just wanted to say thank you to the staff and to you all for committing to getting these applications moving on, moving forward. CHAIRMAN FRYER: Thank you. MS. KOLE: As you see in your staff report and in the site plan application, this is a request to relocate a tower -- well, the request before you today is for a variance in height for a tower that is intended to be relocated less than a half mile from its current location, to the proposed location in the Pebblebrooke Shopping Center. The existing tower was on a site that was subsequently purchased by Standard Pacific and is being developed as part of the residential PUD, resulting in the nonconforming -- the tower becoming nonconforming, with respect to setbacks to residential. You all spent a lot of time this morning talking about this. I fear, and in talking with staff, understand that this may be a recurring theme with wireless communications towers in the future, based on the development that's occurring in Collier County, and in some of these more rural areas. In this instance, the applicant searched for about three years for a suitable replacement. The existing tower is 200 feet tall, and I'll go through some of that information, but after identifying several different sites, this is the site that became apparent so... Why is this site important? Some overviews about wireless phone usage; 96 percent of Americans own a cell phone, 57 percent rely exclusively on their phones, and 80 percent or more of 911 emergency calls were made from wireless devices. So this is an area that's very near the hospital, and would take calls directly to the hospital there. The 190-foot wireless communications tower is within the Ridgeland PUD behind the existing commercial uses. It's buffered from the residential uses by the existing wetlands and preserve rands -- lands. It is already -- it's a kind of a unique site, because there's a parking area and storm water pond in the back, and so the applicant has been working with SFWMD and the engineers, to confirm that this was buildable, and so we did receive our SFWMD Permit, and so wanted to move forward with the variance and site plan application subsequently. July 2, 2020 Page 46 of 59 Without the construction of the proposed tower, there will be a loss of coverage for this area, very specifically. In 1998 the existing tower was constructed at a height of 199 feet, and it's operated uninterrupted for that time with both T-Mobile and Verizon as the two current carriers on that tower. Both of those carriers are proposed to relocate to the new tower, and the search for a new tower was based -- was contingent upon that. This is the elevation of the proposed tower. You can see the two towers at the height of 180 and 190, with the top of the tower at 195. This is lower than what the existing tower is, but was the minimum height available for the carriers to maintain the coverage. There are two additional antennas based on your collocation and shared tower ordinances, that can be placed on there in the future, but, honestly, at that height, it may not be likely that they would get anybody on this -- any additional users on that tower. This is an example. You can see where the existing tower is, and the new residential area that was approved there, and relocated to the back, because this is the corner of Immokalee and Collier Boulevard. This is the existing coverage by Verizon. The RF maps, and I will shortcut some of these, because you all had an extensive lesson on RF propagation maps earlier today. So I was laughing, if this was the final hearing, I would have incorporated much of that into the record for myself. But you can see that the darker shade represents the existing in-building coverage, and the lighter is in-vehicle coverage, if you're out and about, perhaps able to catch that cell; subject to all of the caveats that you heard earlier today about ground clutter and the height and whatnot. The proposed coverage, there's a very little change in the coverage area. You can see between the two, so there -- this is existing, this is proposed, so the intention of a relocation is to find a site extremely close, and at the same or greater height so you can maintain that coverage. T-Mobile, here is an existing map of their existing coverage, and the proposed coverage. So, again, a very minimal change in coverage on the whole coverage, because of this height variance, and the ability to maintain that coverage at this height. There were three different sites that were located, identified, that had various constraints before this site was determined to be a viable tower site for the relocation. This is an excellent coverage analysis to show if you can look in the bottom -- bottom right corner, you can see that this is the T-Mobile figures, just generally on their one tower, and you can see that the photo on the exhibit on the left, is the towers with the T-Mobile, and on the right is totally without it. So instead of relocating, this would be if that tower went away. The existing site is going away 100 percent. The PUD that is approved does not allow that tower. The landlord has advised that that tower must be removed, and so it is going away, and so this is the replacement tower proposed. Similar, you can see the local footprint and population calls, one of the issues with towers was obviously the 911 capabilities and the emergency calls, and so this is just an exhibit that shows many of those emergency calls that came off of this one tower. So the variances requested, there are two, an increase of height from 185 to 195 feet, and then a -- the use of a chain-link fence where an opaque wall is otherwise required. The criteria for a variance are very specific, and so the site plan criteria, we'll go through with staff at site plan stage, but for this purpose, there are special conditions and circumstances peculiar with the characteristics of the land and structure. This property is in the rear. It's located in a storm water pond and surrounded, generally, by wetland and preserve area, meaning the tower height needs to be increased to reach out to the areas that it is going to serve. With respect to the chain-link fence, the pond is regulated by SFWMD, and the county, of course, in putting the footers and hard wall fence in this area would be difficult, if not impossible. The existing tower is being replaced of a tower of similar height with services, and there -- the pond is in the preexisting location. I won't go through each one of these. It was included in your packet. We can answer any questions if you have of them, but this is the minimum variance necessary. I did want to highlight, just so you can see the design of the tower on -- and the fence details on Sheet Z2 and Z3 of the site plan that were included in your package, and you can see on the aerial this will be a platform, and so the tower will actually come out of the ground, kind of as a platform on pillars. So that's the reason for the fence would -- instead of being in the ground, would be on top of the platform July 2, 2020 Page 47 of 59 there. As you can see in the staff report, the proposed communications tower is deemed an essential use and provides essential cellular service to the residential communities, and a necessary purpose to support the hospital and emergency services. The tower is going from 185 to 195, and that ten-foot difference is necessary for the -- to maintain the coverage. The original -- as you saw in the staff report, based on the staff analysis, the preapplication asked that carriers were looking for a tower that was upwards of 250 feet tall, and the applicant and the staff worked together with Verizon and T-Mobile to bring that down to 195. While not ideal, that allowed for the tower to not require any separation requirements, and to really ensure that it was as great a distance from any of the closest residential areas as possible. This is just some information about Crown Castle and the company. So with that, I know your staff report went through each of the criteria, the application went through each of the criteria, provided the RF propagation maps, and showed the evidence with the reduction, and we would be happy to answer questions. Crown Castle does have a travel ban right now for its employees due to COVID-19, and so on the phone is Sunny Piper and Phillip Cochran from Crown Castle. In the event you had any specific questions with respect to how these towers work, again, you had quite a lessen this morning, but they can answer them, if I cannot, if you would allow them to do so, Mr. Chair. Otherwise, I'm happy to answer any questions that the board may have. CHAIRMAN FRYER: Thank you very much. No one is lit up, so I'll just ask the question generally. Any Planning Commissioners have questions for the Applicant or comments? COMMISSIONER SCHMITT: None from me. I'm good. CHAIRMAN FRYER: Okay. Paul, are you okay? COMMISSIONER SHEA: I did have one question. In reading the agenda item, it describes one of the variances to require only one chain-link fence. What does that mean? MS. KOLE: That it -- and perhaps, I don't know if Mr. Bellows or Mr. Finn wants to respond? I'm happy to respond. The code has a requirement that there has to be an exterior opaque fence, and this is going to allow a chain-link fence, et al, and it's presuming that there's landscaping, an opaque fence, and other fences surrounding the equipment. So this will allow a single fence surrounding the compound as a whole on top of the platform. COMMISSIONER SHEA: Does the code require two fences? MS. KOLE: I believe, yes, it requires an opaque fence around the compound, and then it requires the equipment to be fenced otherwise. COMMISSIONER SHEA: So that opaque fence and a chain-link could be combined into one fence. Why was -- why do we require two fences? Maybe this is more a question for the county? MR. FINN: For the record, Tim Finn, Principal Planner. For communications towers, it requires an opaque wall, but they're requesting this petition is a chain-link fence to allow a free water flow into the retention pond. COMMISSIONER SHEA: All right. I understand that. I'm just wondering why does it say it requires only one chain-link fence? CHAIRMAN FRYER: And, Paul, I had the very same question, and I think it was just misworded. It's -- what's required, I believe, is a wall. COMMISSIONER SHEA: Yeah. CHAIRMAN FRYER: And the variance would allow for -- MR. FINN: Just a wall. CHAIRMAN FRYER: Yeah, allow for a fence, which would manage the water, the surface water better. MR. FINN: Uh-huh. CHAIRMAN FRYER: Anything else, Paul? COMMISSIONER SHEA: No, that's it. Thank you. CHAIRMAN FRYER: Okay. COMMISSIONER FRY: May I request an aerial, I guess, an aerial view of this site, so we can all understand exactly what we're -- what we're planning? From what I can gather this is a -- it's a dry retention area that gets water in the summertime, and you're going to put the tower on a platform in the middle of that? MS. KOLE: Yes. COMMISSIONER FRY: And then the chain-link fence goes on the outside, on the perimeter of the July 2, 2020 Page 48 of 59 retention area, or in the water around the platform? MS. KOLE: I'm looking for the planning use sheet, so I can guide you, point you to where it is in your -- there's an existing chain-link fence in the storm water pond already, because the code requires that on the outside of the storm water pond. So as it's developed, and if you look on Sheet L1 of your site plan that was included, and I don't have the page number of your agenda packet, but in the site plan agenda packet, L1, it's the landscape plan. COMMISSIONER FRY: I have T's and Z's in my -- in my zoning plan. I'm not sure where -- MS. KOLE: After Z6 starts Z8, L1. COMMISSIONER FRY: Mine -- I guess they are multiple copies because mine stops at Z6 and goes into the petition application, so maybe I need -- MR. BELLOWS: Do we have something on the visualizer? MS. KOLE: This is the landscape plan, and you can see the fence is proposed to be on the edge of the platform. COMMISSIONER FRY: Okay. So the entire -- even with the -- it looks like it has plantings around it also -- MS. KOLE: Yes. COMMISSIONER FRY: -- trees and bushes, that entire structure is within the wet retention area? MS. KOLE: Yes. COMMISSIONER FRY: Thank you. CHAIRMAN FRYER: All right. Any other questions of the Petitioner? COMMISSIONER FRY: I do have one. I'm sorry. CHAIRMAN FRYER: Go ahead. COMMISSIONER FRY: We talked earlier about crimp points and the fact that they shouldn't fall on anything. MS. KOLE: Yes. COMMISSIONER FRY: Isn't there a parking lot surrounding this, around the perimeter of this entire -- wouldn't the tower fall on those cars, or is it all self-contained within the area itself? MS. KOLE: Sure. The -- on Sheet Z1 is the overall site plan. In the fall zone radius that's certified by the engineer on this tower is 137 feet, there is parking surrounding this. The -- the actual setback to the edge of this property, you can see, is over 155 feet, but as was described earlier, the tower would fall in half onto itself at the 137-foot mark, but in the event it didn't, could there be an issue if there were a car in the back, perhaps, but, honestly, these parking spaces are not used at all. There's sufficient parking in the front of the parking, in the front of the shopping center. I've never seen a car back there in all of the times I've looked. COMMISSIONER FRY: So where is the fall radius shown on that? MS. KOLE: It's not shown on this. I was just telling you there's a fall zone letter. COMMISSIONER FRY: Okay. It seems relevant to me to see where that fall radius falls. So we're saying that fall radius falls outside of the parking spot, so it could possibly -- MS. KOLE: Excuse me. I'm sorry, Commissioner, there is a 58-foot fall radius. As you can see on the next sheet, Z2 -- CHAIRMAN FRYER: Okay. MS. KOLE: -- the dotted line is the fall radius, so the 137 radius means 137 feet of the tower remain upright, and the fall zone would -- the top of the tower would fall over itself. COMMISSIONER FRY: So if the top of the tower fell over, it would not go beyond that dotted line? MS. KOLE: No. COMMISSIONER FRY: And the parking spots are all beyond that dotted line? MS. KOLE: Yes. COMMISSIONER FRY: Okay. Thank you. CHAIRMAN FRYER: All right. Anything else from the Planning Commission? (No response.) CHAIRMAN FRYER: If not, thank you for your presentation. We'll hear from staff. Tim? July 2, 2020 Page 49 of 59 MR. FINN: For the record I'm Tim Finn, Principal Planner. The project is compliant with the GMP and LDC; therefore, staff recommends approval. CHAIRMAN FRYER: Thank you. Any questions for staff? Nobody is lit up. COMMISSIONER FRY: I'm lit up. CHAIRMAN FRYER: Secretary Fry? MR. BELLOWS: Tim, he's got a question. MR. FINN: I'm sorry. COMMISSIONER FRY: Hey, Tim, how -- she mentioned that it started as a request for a 250-foot tower and staff worked with Verizon and T-Mobile, and, but could not get it down to 185. How did you arrive at 195 feet as being the minimum height? It's only ten feet higher than, you know, the code, so how was that arrived at, the 195 was sufficient, but as short as possible? MR. FINN: To the best of my knowledge the client couldn't do 185 feet due to coverage, whereas, 195, the extra ten feet, they can do that, and that's how they arrived at 195. COMMISSIONER FRY: She showed two additional potential antenna bands below the two that would go in day one, but then said -- seemed to caveat that with the fact that there may not be any coverage improvements, because they're not high enough? Was that -- did I hear that accurately, I guess? Yes. MS. KOLE: So the way that the coverage works, as you learned this morning, obviously, the height and the coverage can go out, as well as how the antenna are identified and where they are focused, and so if there -- there could be a user who would want to have a lower height that doesn't need the same coverage radius. So, for example, if there's a tower in the vicinity, or a closer satellite or antenna for another user, or perhaps an emergency department that doesn't need the same coverage band, they could use it at a lower height, but for the users for the replacement of the existing tower to move to this tower, this was the minimum height available for them. COMMISSIONER FRY: Thank you for clarifying, because I was left with the impression that possibly the tower was actually too short, really needed to be a little bit taller, so that those additional locations would be helpful, but it sounds like this does meet your needs and potential future needs? MS. KOLE: Certainly our carriers would love to have taller towers, but in light of your code and being respectful of that, this would be the minimum height that could get the carriers what they could use. COMMISSIONER FRY: Thank you. CHAIRMAN FRYER: Thank you very much, and I think, were there any other questions for staff? (No response.) CHAIRMAN FRYER: Okay. Do we have any registered speakers? MR. BELLOWS: The ones that were registered were with the Applicant. CHAIRMAN FRYER: Proponents, yeah. Okay. All right. So there's no need for rebuttal, nothing to rebut, and there being no speakers, registered or otherwise, we will close the public speaking portion of the hearing and call for discussion by the Planning Commission. Who would like to start? If no one -- COMMISSIONER SCHMITT: I have no issues. I am prepared to support the petition. CHAIRMAN FRYER: Okay. COMMISSIONER FRY: I find nothing to object to in this. CHAIRMAN FRYER: All right. Paul, how are you doing with it? COMMISSIONER SHEA: I'm doing good. I have no objections as well, and I'm prepared to support the petition. CHAIRMAN FRYER: Okay. As am I. I'd entertain a motion then, please. COMMISSIONER SCHMITT: I make a motion to approve PUDZ-PL20190000734 -- oops. I read the wrong one, I'm sorry, in the record. I was already on the next one. CHAIRMAN FRYER: You can get us out of here early. COMMISSIONER SCHMITT: I can get her out of here early. I take that back. Petition PL20180003229 Ridgeland Communication Tower, I make a recommendation for approval -- CHAIRMAN FRYER: All right. COMMISSIONER SCHMITT: -- as proposed, subject to the -- as proposed by staff. CHAIRMAN FRYER: This is a -- this is a two-part item. There's a fence and a height. July 2, 2020 Page 50 of 59 COMMISSIONER SCHMITT: Yes, both variances. CHAIRMAN FRYER: Okay. Good. Is there a second? COMMISSIONER HOMIAK: Second. CHAIRMAN FRYER: Any further discussion? (No response.) CHAIRMAN FRYER: If not, all those in favor, please, say aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER FRY: Aye. COMMISSIONER SCHMITT: Aye. CHAIRMAN FRYER: Aye. Opposed? COMMISSIONER SHEA: Aye. COMMISSIONER FRY: Oh, Paul was a little late. I wasn't sure. CHAIRMAN FRYER: Oh, Paul, you were an aye? You said you were. COMMISSIONER SHEA: Yes. CHAIRMAN FRYER: Yeah. Thank you so much. Okay. Good. Thank you. MS. KOLE: Thank you. COMMISSIONER SCHMITT: Since I made the next one, we'll move right to the next one. CHAIRMAN FRYER: Well, we don't have to, we've already approved it. COMMISSIONER FRY: Cell tower day here. CHAIRMAN FRYER: All right. All right. Now we go -- COMMISSIONER SCHMITT: A cell tower fell on my head and I moved right to the next one. CHAIRMAN FRYER: We will go to -- this one is going to be our last quasi-judicial, because the very last one is legislative, I think. So that is going to be PUDZ-PL20190000734. This is the Immokalee Fair Housing Alliance PUDZ, and all those wishing to testify in this matter, please, rise and be sworn in by the court reporter. (The speakers were duly sworn.) CHAIRMAN FRYER: Very good. Any ex parte disclosures by the Planning Commission, start with the secretary? COMMISSIONER FRY: Staff materials. CHAIRMAN FRYER: Staff materials, as well as communications with staff, and a brief communication with the Applicant's Counsel. COMMISSIONER HOMIAK: Nothing, just staff materials. COMMISSIONER SCHMITT: Staff material only. I was out there many years ago, but not any -- in any relation to this. CHAIRMAN FRYER: All right. We'll begin then with the Applicant's presentation. Please proceed, Mr. Pritt. COMMISSIONER FRY: I should add, I had a brief conversation with Mr. Pritt walking down the stairs at lunchtime. CHAIRMAN FRYER: Thank you. MR. PRITT: Good afternoon. My name is Robert Pritt with the law firm of Roetzel and Andress, and I'm an attorney still. A lot of people have asked, "Why haven't you retired yet or something?" I'm very honored to be in front of you today. This is a little bit different for me, in that, I get to work with the Immokalee Fair Housing Coalition, Inc., and I'm going to have Dr. Arol Buntzman speak for a few minutes before we get into the details of the presentation. I think the presentation overall will be fairly short, because unlike any other time in my career, I think we agree with every single thing that the staff has done in the staff report. I mentioned that to Mr. Finn and Mr. Bellows during the break. And so what we're dealing with is an issue that, notwithstanding the changes that we've had in the last couple of months, is still a very, very important issue, and it's affordable housing, affordable housing here in Collier County, and there's so much talk about affordable housing everywhere. Way early in my career I was general counsel for a large housing authority. I thought I had heard it all by then, but we hear a lot of talk about, yeah, we've gotta do July 2, 2020 Page 51 of 59 something, we've gotta do something, and Collier County is actually doing something. And I'm before you today on something that is actually being done, and we hope that this will be successful today and throughout the hearing process with the County Commission. We have every reason to think that it will be successful, because so far, I guess I better knock on wood or something, so far we have not heard any opposition. Maybe there's some that we don't know about. We've had two NIMS, two neighborhood informational meetings. They were all totally positive, and everything that we can tell so far, is that people are in favor of this in Immokalee. The speakers that I intend to present to you today would be Dr. Buntzman, and he's just going to briefly go over a little bit about what this organization is about, and what they're doing, and I think he has some petitions in support of the project. And then, secondly, we'll have Canon Sandora who's a -- who is an engineering intern with Andres Boral Engineering. Andres Boral is an engineer, registered engineer, or licensed engineer in Florida, and he is here also. Canon Sandora has been working and interacting with the county staff on a regular basis for the last, I don't even know how long, at least a year, I think, on this project and we have a, I think it's, like, only nine or ten slides, a little PowerPoint for you, if you can stand one this late in the afternoon, this late in the day. And we also have here Church Roberts. He's our environmental consultant. He's here to answer any questions that's been through environmental review by your staff, and we agree with the environmental review also, but we didn't dare not have him here, just in case there was something that might come up that we don't know about. We also -- I want to recognize, and I guess you call it a shout out now, positive, to Barron Collier Partnership. They're the owner of the property, as you can see from the application, and we appreciate their patience in getting through the process. Nobody knew that it was going to take this long, probably because a lot of it had to do with COVID, and this was an expedited project, by the way, under your rules, but there's only so much expediting you can do under these circumstances, so -- but we do want to thank them and let you know that they're very much a part of this process, and we appreciate that. And the Housing -- IFHA, we'll call it, we do call it, they've entered into an agreement with the county, and I think you have all of that in your packet to provide this affordable housing, and the level of affordable housing we will get into. We think that all of the provisions of the PUD, the proposed PUD and the four proposed PUD's, and the intended requirements in your packet, that we think that each and every one of the requirements have been met, and without going through all of them, of course we can do that, but without going through all of them, your staff has agreed and has -- and we agree with the staff, what we would like to do, this might shorten things a little bit, is we would like to ask that the staff report be incorporated into our presentation. It's a little bit of a legal term, but we'd like to have that incorporated into our presentation for -- in case there's any issue as to whether or not we have sufficient, competent, substantial evidence in the record. And with that -- oh, and the last thing, I want to thank the county staff. They've been very competent on this and they've been patient and competent, and their analysis has not always been 100 percent easy, but it's been very, very good, and so with that, I'll yield the microphone to Dr. Buntzman first, and then Canon is going to do a little presentation for you. Okay. CHAIRMAN FRYER: Thank you. DR. BUNTZMAN: Thank you, Mr. Pritt, Commissioners. I'm very happy to be here today. I wanted to share a little bit about the Immokalee Fair Housing Alliance and our motivation behind the project. My name is Arol Buntzman. I'm the Chair of the Immokalee Fair Housing Alliance. For the record, I live at 5273 Messina Street in Ave Maria. Decent, safe, affordable housing is more than a roof over people's heads. When homes are decent, safe and affordable, children are healthier and they do better in school. Workers are more productive, and families have incomes for other than just the basic needs, on a sustainable basis, while boosting the local economy. When rents consume more than half of household income, there's not enough left over for healthy food, decent clothing, childcare, early childhood education or after school programs. In Immokalee farm worker families and other low-income families that live year-round in Immokalee, often have to spend much more than 50 percent of their income on rent. The Immokalee Fair Housing Alliance was organized as a Florida not-for-profit 501C3 by an alliance of July 2, 2020 Page 52 of 59 faith-based organizations, nonprofit foundations and NPO's and individuals that believes that everyone deserves a chance to live in decent, affordable, hurricane-resistant housing. IFH's plan is to develop 128, two and three-bedroom low-energy, low-maintenance housing units that can be rented to low income and very low-income families that reside in Immokalee on a year-round basis at rents they can afford. At this point I'd like to yield to Canon, and I will be happy to answer any questions afterwards. CHAIRMAN FRYER: Thank you, sir. MR. SANDORA: Thank you, guys. Canon Sandora for Boral Engineering and Design. I'm honored as well to be a part of this project. So if we can go on to the second slides, really, is the -- oh, I can do it here. I'm figuring this one out. So as Dr. Arol shared, some of the key objectives of the project is to have it hurricane-resistant construction. We wanted it to be low-energy, low-maintenance, safe, and also a lot of community space, indoor and outdoor, we'll see that, kind of, when we get to the site plans so... And then I'm going to also share when we get to the site plan, I'm going to share the key features. As Dr. Arol mentioned it's 128 units, so that's eight, 16-unit buildings. There's also a community center. There's a preserve within a retention area, and then you have your parking, sidewalks, bicycles. There's also a half-court basketball, recreational parks, landscaping, utilities, the typical things. So here is the location of the project, the aerial of it. Right there on Lake Trafford Road by the corner of -- and adjacent to North 19th Street. So it's a nine and a half acre site. To the north you have a RPUD, which is five dwelling units per acre, and you also have a preserve, which is to the northwest area. Now, to the east you have a -- there's a residential multifamily 12 units per acre, and there's also a gas station over there. To the south there's -- it's mobile homes, mobile homes, and to the west is still vacant so... Now, here's the master site plan, which has been -- we've got staff approval on the master site plan, and we've also shared this at the neighborhood information meetings, and we've heard nothing but support for the site plan. So it's basically there's two entrances. There's one on Lake Trafford Road. There's one on North 19th Street, and then you have your basic loop that you're going to see in a lot of different communities, kind of just a simple approach within the buildings. There's eight buildings there, as well as the community center, with the detention area in the middle. You know, we have the preserve is up to the northwest, and that's 1.41 acres, so now we're at nine and a half acres and we're proposing 13.44 units per acre, so that's 128 units. So that's -- as you can see on the site plan, there's a lot of room for recreational area. So we're really looking to, you know, not just help these families, but also have an opportunity for them to get outside, have a recreational area, basketball court, and there's the community center, things of that nature so... So this project really fulfills the Immokalee Area Master Plan vision. In 2018 the -- basically the public got together and created a vision for Immokalee, which is, I'll read you a little bit of it, Immokalee is a family-oriented community that supports a healthy lifestyle. It is attractive, environmentally sustainable and offers a full range of housing, recreation and education opportunities to meet the needs -- the residents' needs. Immokalee has a safe, well-connected network to walk and bicycle about town, as well as roadway networks needed to support and transport of good services. So and then more from the Immokalee Area Master Plan is to encourage the -- about regarding affordable housing bonus density zones, to encourage the provision of affordable housing within certain subdistricts in the urban designated area. A maximum of 12 dwelling units per acre may be added to the base density, if the project meets the definitions and requirements of the Affordable Housing Bonus Density Ordinance set forth in the LDC. The staff report reflects that, that we're in compliance with the LDC. Now here's to -- as Bob was sharing about the companion agreement for affordable housing, now we have a base density for it, it's zoned RS4, and then we can have up to 12 more. So we chose to have -- now go with at least 70 percent affordable housing, as part of our agreement, which allows us to have an additional 11 units per acre. So four plus 11, that puts us at 15, so that's -- and we're proposing 13.44, so we're within the requirement there. July 2, 2020 Page 53 of 59 Traffic, we prepared a -- Boral Engineering and Design prepared a traffic statement so -- and the staff found that it is -- it is sufficient. The roadways are sufficient, and they're going to be -- be able to handle the -- the traffic. So I'm going to read you a line from that, but the staff has approved with regards to traffic, so there's no issue there, but we do have a traffic consultant here, if there's any questions regarding traffic. Yes, sir? CHAIRMAN FRYER: No, I'm just waiting. Please continue. MR. SANDORA: Okay. Okay. So we do -- we are proposing one deviation, and it's regarding the parking. So Immokalee farm -- Immokalee farm workers, as well as the low-income families, don't require quite as much parking as, say, you know, a not-affordable housing. So typically you need two parking spaces per dwelling unit. Now, we propose to have 1.5 spaces per dwelling unit, so, and the staff has recommended approval for that, too. The staff has recommended approval on every respect of the project, you know, including traffic, environmental, and so forth. So we also have the environmental consultant here, if there's any questions regarding environmental, and some recommendations, approvals and support, of course, we have the Collier County staff has recommended approval, and I think the staff did a great job, too. I want to second that, on the project, and Tim Finn as a principal planner, did a great job, so we're really thankful for them. The Immokalee Local Redevelopment Area Board, the Immokalee CRA, they have wrote us a support letter. We went and met with them, and they've wrote us a support letter, and we've brought those support letters today, if you guys would like to hear them, but they're very supportive, and we're thankful for their support. The neighbors, you know, at the neighborhood information meeting, we hear nothing but support, so we're really glad. We also brought a petition of a lot of people here that have signed it. CHAIRMAN FRYER: We'll make that a part of the record. MR. BELLOWS: Yes, we'll make a copy and give a copy to the court reporter when we get a chance. MR. SANDORA: Is there any questions for me? CHAIRMAN FRYER: Yes. I'm going to ask Commissioner Fry. There was a question for you, and also Dr. Buntzman. COMMISSIONER FRY: Canon, you have 70 percent affordable housing planned in order to get to the maximum of 15 units, and you're asking for 13.44? MR. SANDORA: Yes, sir. COMMISSIONER FRY: What is the -- what are the remaining 30 percent, and if this is an affordable housing complex, why is it not 100 percent affordable housing to some extent? MR. SANDORA: Well, I will say this: There's only -- we are agreeing to have at least 70 percent, so there's nothing stopping us from having 100 percent so -- COMMISSIONER FRY: Okay. That's really a determination, so that you can qualify for the density that you're -- MR. SANDORA: We're qualifying for the density so... COMMISSIONER FRY: Okay. My next question is for you, Dr. Buntzman. Come back up. And, first, I'll say I joined this Commission in December of 2018, and one of the very first things that I had the honor of being part of was the Immokalee Area Master Plan, which had been in the works for years and years, and we finally got it going and approved, and this seems like this is the -- one of the first applications of that new master plan; correct? DR. BUNTZMAN: Yes. COMMISSIONER FRY: Okay. DR. BUNTZMAN: I think under the new master plan, that site would be zoned for R6 rather than R4. COMMISSIONER FRY: So, you know, we've heard so many references to affordable housing. It gets talked about in every PUD that comes in. We ask for affordable housing, in essential workers, and that's been done, and so finally we have a development that's actually an affordable housing development. So I'm honored to be here and actually hear affordable housing being proposed. My question is you're building 128 units. I know there's a great need in Immokalee of a lot of farm workers and families. The Immokalee Fair Housing Alliance, of which you're chairman, is this a one-and-done project for you? I guess my question is 128 units, to what extent does that address the need, and if not, are there future plans July 2, 2020 Page 54 of 59 from your organization to do more? DR. BUNTZMAN: It does not address the need. The need is probably 10 to 20 times as much affordable housing that's needed. Hopefully it's not a one-and-done. The board has committed to doing as many projects as we can once this one is done, until everybody has the opportunity to live in decent, affordable, hurricane-resistant housing in Immokalee. COMMISSIONER FRY: So your -- your organization remains, even after this project, if it's approved and built, and continues that same mission moving forward? DR. BUNTZMAN: Yes, sir. COMMISSIONER FRY: Okay. Thank you. CHAIRMAN FRYER: Thank you very much. Any other Planning Commissioners have questions for the applicant? (No response.) CHAIRMAN FRYER: Okay. If not, we'll now hear from staff. MR. FINN: For the record my name is Tim Finn, Principal Planner. The project is compliant with the GMP and the rezoning criteria within the LDC; therefore, staff recommends approval. CHAIRMAN FRYER: Thank you. Planning Commissioners have any questions or comments for staff? COMMISSIONER SCHMITT: No. CHAIRMAN FRYER: Neither do I. All right. Ray, do you have any registered speakers? MR. BELLOWS: Yes. We have both speakers present and some virtual speakers as well. CHAIRMAN FRYER: All right. COMMISSIONER SCHMITT: Are they all opposed or -- MR. BELLOWS: No, they seem to be -- COMMISSIONER SCHMITT: Supportive or opposed? MR. BELLOWS: Supportive. COMMISSIONER SCHMITT: Okay. I just didn't know if they wanted to steal victory from the jaws of defeat? CHAIRMAN FRYER: I was going to raise the same thing, Joe. In anticipating there is unanimous support for this, including on this dais, I thought maybe -- well, I'm going to indicate my personal support for it, subject to, if there are negative spokespeople, I'll certainly keep an open mind and listen, but right now I find this as an entirely commendable project serving an important, unmet need, and we thank all who have been involved in bringing this forward. So that's where I am at this point, and I think I'm going to ask if any other Planning Commissioners want to sort of give a preliminary signal of where they are, that might obviate the need for everybody who wants to speak to do so? COMMISSIONER SCHMITT: I'll be delighted to hear anybody speak, if they wish, but I am in full support of this proposal. COMMISSIONER FRY: Barring any compelling objections, I'm in complete support as well. COMMISSIONER HOMIAK: I'm in support also. CHAIRMAN FRYER: Okay. Paul, do you want to weigh in? COMMISSIONER SHEA: I am in complete support as well. CHAIRMAN FRYER: Okay. So you've got -- you've got strong indication from all five of us that we're in support. Having said that, you have every right, and are more than welcome to speak, and speak for a full five minutes, if you wish, but it's not -- it's not necessary. I don't think you need to worry about where we're -- you're going with this. So let's -- if when your name is called, and you don't believe you need to speak, you can just wave or raise your hand and say that you don't wish to speak. Ray? MR. BELLOWS: Julia Perkins? MS. PERKINS: I'll not speak. CHAIRMAN FRYER: Okay. Thank you. MR. BELLOWS: Reverend Robert Morrow? DR. BUNTZMAN: I think he had to leave. CHAIRMAN FRYER: Okay. All right. July 2, 2020 Page 55 of 59 MR. BELLOWS: Miguel Estrada? MR. ESTRADA: I pass. Thank you. CHAIRMAN FRYER: Thank you. MR. BELLOWS: Dan Oberski? (No response.) CHAIRMAN FRYER: Thank you. MR. BELLOWS: And then for the virtuals we have John Riley? CHAIRMAN FRYER: Mr. Riley, do you still wish to speak? MR. RILEY: No, thank you. CHAIRMAN FRYER: Thank you. Who else, sir? MR. BELLOWS: Barbara Weiss? (No response.) CHAIRMAN FRYER: Barbara Weiss? DR. BUNTZMAN: Barbara may be on mute. MR. BELLOWS: How about Shirley Hackerson? (No response.) CHAIRMAN FRYER: That's it? MR. BELLOWS: No, there's lot more. CHAIRMAN FRYER: A lot more. All right. MR. BELLOWS: Charlene Oldham? (No response.) MR. BELLOWS: How about John Guest? (No response.) MR. BELLOWS: Sylvia Marsh? (No response.) MR. BELLOWS: Do we need to slow down? Barbara Heart -- or Hurt, I should say? (No response.) MR. BELLOWS: Richard Runnert? (No response.) MR. BELLOWS: Peter Rodino? (No response.) MR. BELLOWS: Wow. All right. Peter -- or Melina Shrugg? (No response.) MR. BELLOWS: None of these? I've been informed we might have Charlene wishing to speak. CHAIRMAN FRYER: All right. MR. BELLOWS: So we'll try that one. CHAIRMAN FRYER: She's virtual or live? MR. BELLOWS: Virtual. CHAIRMAN FRYER: Charlene, are you there? (No response.) CHAIRMAN FRYER: Well, it doesn't sound as though she is there. There's been a tremendous outpouring of unanimous support from the community, a voluminous petition, and we are all up here very, very happy to pass this one on with a strong enthusiastic recommendation of approval and just formalize it. MR. BELLOWS: Yeah, and each one has expressed -- noted that they are in support. CHAIRMAN FRYER: Oh, good. Okay. MR. BELLOWS: So we know these are all in support. CHAIRMAN FRYER: Okay, that's good. Anything further from the Planning Commission? (No response.) CHAIRMAN FRYER: Okay. We need to have three votes, and the first is on the PUD rezone. The second on EAC. Is EAC on environmental, and the third on the Affordable Housing Bonus Agreement. So let's take those one at a time. First of all on the PUDZ, is there a motion to recommend approval? July 2, 2020 Page 56 of 59 COMMISSIONER FRY: So moved. CHAIRMAN FRYER: Is there a second? COMMISSIONER SCHMITT: Second. COMMISSIONER HOMIAK: Just in the PUD on Exhibit D, there's just a few clean-up things, I think. CHAIRMAN FRYER: Please, go ahead. COMMISSIONER HOMIAK: There's one thing -- the same as principal structure maybe should be removed, because it's not in this table. MR. BELLOWS: Which page are you reading from? COMMISSIONER HOMIAK: Page 2 of 6 of the PUD with the Exhibit D. MR. BELLOWS: Okay. So we have a cleanup there to remove -- COMMISSIONER HOMIAK: It says SPS equals same as principal structure, but it's not in the table. MR. BELLOWS: Okay. It should have a footnote, if it's not there. COMMISSIONER HOMIAK: Yeah, there's a footnote, but it's not referenced in the table either. MR. BELLOWS: I appreciate the comment. We'll clean that up. COMMISSIONER HOMIAK: It should say structure. MR. BELLOWS: Mark Strain-like. COMMISSIONER SCHMITT: There's no requirement for EAC vote on this. CHAIRMAN FRYER: I was told there was. COMMISSIONER SCHMITT: It states -- it's stated here the project does not require Environmental Advisory Council review, as the project did not meet EAC's scope of land development; that was in the report, so if it does we -- MR. BELLOWS: It does. COMMISSIONER SCHMITT: It does. So that is incorrect in the report. COMMISSIONER HOMIAK: Well, it says it both ways. MR. BELLOWS: We'll have Jamie Cook come up to give a legal presentation. MS. COOK: Good afternoon, Jamie Cook, Principal Environmental Specialist. On Page 7 of 16 of the staff report, it does indicate that EAC is required because scrub jays were observed onsite. COMMISSIONER SCHMITT: Okay. So on 15 it doesn't, so Page 15 -- thank you for that clarification. CHAIRMAN FRYER: Thank you. All right. So on the PUDZ rezone, it's been moved. Was it seconded? COMMISSIONER SCHMITT: Second. CHAIRMAN FRYER: Okay. Any further discussion? (No response.) CHAIRMAN FRYER: All those in favor, please, say aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER FRY: Aye. COMMISSIONER SCHMITT: Aye. CHAIRMAN FRYER: Aye. COMMISSIONER SHEA: Aye. CHAIRMAN FRYER: Opposed? (No response.) CHAIRMAN FRYER: Passes unanimously. Second on the EAC, again, our recommendation of approval to the county -- Board of County Commissioners. Is there a motion? COMMISSIONER SCHMITT: I make a motion that we approve. CHAIRMAN FRYER: Is there a second? COMMISSIONER HOMIAK: Second. CHAIRMAN FRYER: Any further discussion? (No response.) CHAIRMAN FRYER: If not, all those in favor, please, say aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER FRY: Aye. July 2, 2020 Page 57 of 59 COMMISSIONER SCHMITT: Aye. CHAIRMAN FRYER: Aye. COMMISSIONER SHEA: Aye. CHAIRMAN FRYER: Opposed? (No response.) CHAIRMAN FRYER: Passes unanimously. And, finally, the Affordable Housing Bonus Agreement has been brought to us for action, which I think is maybe a little unusual, but we've been asked to vote on it, so we will. Is there -- and that was also part of the materials I've read it. It seems satisfactory to me. Is there any discussion on that? COMMISSIONER SCHMITT: No discussion. CHAIRMAN FRYER: If not, then I'll entertain a motion to approve. COMMISSIONER SCHMITT: I second. COMMISSIONER FRY: So moved. CHAIRMAN FRYER: Okay. Any further discussion? (No response.) CHAIRMAN FRYER: If not, all those in favor, please, say aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER FRY: Aye. COMMISSIONER SCHMITT: Aye. CHAIRMAN FRYER: Aye. COMMISSIONER SHEA: Aye. CHAIRMAN FRYER: Those opposed? (No response.) CHAIRMAN FRYER: Passes unanimously. Thank you very much Immokalee Fair Housing Alliance. All right. We've got one more item, and just on the off chance that we can get -- COMMISSIONER SCHMITT: Wait a minute. They have to stay for this. We get lonely. All right. Thank you all. CHAIRMAN FRYER: Thank you. We will give them time to leave. MR. KLATZKOW: It's a pandemic, they can go. CHAIRMAN FRYER: Good point. Okay. The last item, I believe is legislative, and it is PL20190002635, and it's the GMPA to extend the availability of early entry TDR bonus, and this is here for adoption, and just for your recollection purposes, we voted unanimously seven to nothing to transmit. So it's back now for adoption, and I don't think we have to make disclosures or swear anybody in. COMMISSIONER SCHMITT: No. CHAIRMAN FRYER: So does staff have a presentation? MR. KLATZKOW: We can just vote on it. COMMISSIONER SCHMITT: We can vote. I recommend -- MR. BELLOWS: Michele said she really wanted to make a presentation. COMMISSIONER SCHMITT: Michele wants to -- I haven't seen Michelle in so long. Get up here so I can hammer you. We can question her. CHAIRMAN FRYER: Commissioner Schmitt said don't want to snatch victory from the jaws of defeat. MS. MOSCA: Thank you. My eyesight is going. It's really bad, Joe -- or Commissioner Schmitt. For the record, my name is Michele Mosca, Principle Planner in the Community Planning Section, and this is the adoption hearing for the early entry TDR bonus. It's to extend the bonus until September 27th, 2022, and as Commissioner Schmitt had mentioned, you all have seen this previously at your January transmittal hearing, I believe with the exception of Mr. Shea. You all had recommended unanimous approval. It was transmitted to the Board of County Commissioners. The Board of County Commissioners transmitted to the State in February of this year, and the State had no objections to the amendment. There is one modification since transmittal. We have added some language to make it consistent with the Land Development Code, which states the board can extend the TDR early entry bonus again by resolution. So that's within your Adoption Ordinances, July 2, 2020 Page 58 of 59 Exhibit A, and if you don't want any further presentation, I can just go with the recommendation. Staff is recommending that you forward this petition with the revised changes to the Board of County Commission for adoption. CHAIRMAN FRYER: Thank you. I think that's a wise decision. Commissioner Schmitt? COMMISSIONER SCHMITT: I just have one question, Michele. When is -- when are the new amendments coming? Are they still being -- still going through the public vetting process or public hearing process? MS. MOSCA: They have -- COMMISSIONER SCHMITT: The revision to the whole plan. MS. MOSCA: Right. We received board direction, I want to say, in June of -- I want to say it goes back a couple years. We are moving the amendments forward. There's some additional work that still needs to be done. Our hope is to bring the amendments and the LDC, the Land Development Code, amendments, back to the Planning Commission Board hopefully the first part of the next year. COMMISSIONER SCHMITT: And this -- this would then be part of that, again, if it's going to be -- MS. MOSCA: This is really sort of a stopgap measure. What's going to happen with the amendments, there's a base -- base TDR provision. You'd receive two base TDR credits, and this would go away, the early entry would go away, that's what's being proposed currently. COMMISSIONER SCHMITT: I make a recommendation we -- of approval. CHAIRMAN FRYER: Okay. Let's see what Commissioner Fry has to say. COMMISSIONER FRY: Michele, when was this originally approved? MS. MOSCA: Are you talking about this amendment? COMMISSIONER FRY: Yeah, the RFMUD and the TDR program, 2000 -- MS. MOSCA: Back in, I'd say around 2003, and the three bonus amendments, we have the early entry as well as the restoration, maintenance and conveyance, those were adopted, I believe, in 2005. COMMISSIONER FRY: Should we change the name of this clause from early entry to thank God you're entering, better late than never or -- MS. MOSCA: Well, as I mentioned, this really is a stopgap measure, so we will be eliminating the early entry bonus provision when we come forward with the amendment. COMMISSIONER FRY: That's it. COMMISSIONER SCHMITT: If you recall the last petition we had in here was actually taking advantage of this. That was the -- was that from the fringe, rural fringe? COMMISSIONER FRY: That was from the RFMUD. COMMISSIONER SCHMITT: That was from the RFMUD, yeah. CHAIRMAN FRYER: Thank you. Okay. Great presentation. Thank you very much. Anything further -- Paul, how about you? Anything from you? COMMISSIONER SHEA: Just an educational question, I have no problem with it. Is the -- is the reason we have to keep extending it, because we're not getting the interest in it we wanted? CHAIRMAN FRYER: That's a good question and the answer is yes. COMMISSIONER SCHMITT: Yes. MS. MOSCA: It helps with participation, but really incentivizes the use of TDR's. So it does further the participation in the program, and the reason for the extension is, again, we'll be moving forward. There is a need for the TDR's to entitle development in the receiving lands, as well as in the some of the urban-designated areas. CHAIRMAN FRYER: Okay. Thank you. Commissioner Schmitt, I guess that was a motion you made, was it not? COMMISSIONER SCHMITT: That was a motion, yes, sir. CHAIRMAN FRYER: Is there a second? COMMISSIONER HOMIAK: Second. CHAIRMAN FRYER: Any further discussion? (No response.) CHAIRMAN FRYER: All those in favor, please, say aye. July 2, 2020 Page 59 of 59 COMMISSIONER HOMIAK: Aye. COMMISSIONER FRY: Aye. COMMISSIONER SCHMITT: Aye. CHAIRMAN FRYER: Aye. COMMISSIONER SHEA: Aye. CHAIRMAN FRYER: Opposed? (No response.) CHAIRMAN FRYER: Passes unanimously. New business? I don't believe we have any new business. Old business? No old business. Public comment? Any member of the public wish to speak on anything? (No response.) CHAIRMAN FRYER: Now we come to adjournment, and without objection, anyone care to comment? COMMISSIONER FRY: I do. I do care. CHAIRMAN FRYER: Okay. Why is that? COMMISSIONER FRY: I would just like to comment that I think that I'd like to commend Chairman Fryer. Mark Strain was chairman for, I believe, 13 years and on this board for 19 years. I may be off, but, I think you've stepped into his shoes, and you've -- you've ran a smooth machine so far, and I just appreciate it. It's made it a lot easier transition, because you were a fixture on this commission. CHAIRMAN FRYER: Well, you're very, very kind to say that, and, certainly, his shoes are big shoes, so I'm doing my best. No one will probably ever really be able to be another Mark Strain, so we miss him. There being nothing further to be brought forward, we're adjourned. COMMISSIONER SCHMITT: Thank you. * * * * * * There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:17 p.m. COLLIER COUNTY PLANNING COMMISSION ___________________________________ EDWIN FRYER, CHAIRMAN These minutes approved by the Board on _______________, as presented _________________ or as corrected _________________. TRANSCRIPT PREPARED ON BEHALF OF U.S. LEGAL SUPPORT, INC., MORNING SESSION BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC, AFTERNOON SESSION BY JANICE R. MALINE, COURT REPORTER AND NOTARY PUBLIC.