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CCPC Minutes 09/06/2007 LDC September 6, 2007 TRANSCRIPT OF THE LDC MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida September 6, 2007 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 11 :05 in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed Caron Tor Kolflat Paul Midney Robert Murray Brad Schiffer Russell Tuff Robert Vigliotti ALSO PRESENT: Joseph Schmitt, Community Dev. & Env. Services Catherine Fabacher, LDC Coordinator Ray Bellows, Zoning & Land Dev. Review Jeffrey Klatzkow, Assistant County Attorney Marjorie Student-Stirling, Assistant County Attorney Page 1 September 6, 2007 CHAIRMAN STRAIN: Now, we will reconvene for the first cycle review of the Land Development Code meeting that we started a couple of months ago and we've continued to today. This is a remainder of seven elements that were part of the LDC cycle one. Actually, there were six: Emergency generators, outdoor seating, lot width measurement, deadline to file final plat, cross-reference the above items and then flow chart for type three applications. MR. SCHMITT: Mr. Chairman, I just need to take an administrative moment here. We have your books for the hearing in two weeks and we're going to attempt to hand them out, or just leave them here for you to pick up. CHAIRMAN STRAIN: Let's just break for five minutes so you can get everything handed out, get that done. The rest of the members can find all their paperwork for this next round and we'll start right back up. MR. SCHMITT: This is your school concurrency read-ahead. CHAIRMAN STRAIN: Okay, so it will be at 11:13 we'll reconvene. (A recess was taken.) CHAIRMAN STRAIN: Welcome back. We are now in a new meeting. We'll reopen the LDC cycle one meeting that was continued from the last time, and I can't remember when it was, there were so many. MS. F ABACHER: August 16th. CHAIRMAN STRAIN: August 16th? Thank you. Hopefully this will be the final continuance. And we'll start off -- I'd like to go in order that you have on the agenda, if that's okay, Catherine? MS. F ABACHER: That's fine. CHAIRMAN STRAIN: Okay. And the first one we'll be starting off with is emergency generators. New language was sent to us all. Page 2 September 6, 2007 Catherine, did you want to tell us, have there been any changes in regards to -- MS. F ABACHER: Actually, Commissioner, we're kind ofleft with the old language, because staff hadn't really determined whether it wanted to recommend the generators go in the front yard. That was one of the things we were left with. But staff thinks that it's the best solution. Sideyard, three-foot encroachment into the setback. If you can't do that, then you'll need to go to the back with your permanent emergency generator installation. CHAIRMAN STRAIN: Okay, we've got the language in front of us. Is there any questions from the planning commission -- COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: -- with regards to this? COMMISSIONER MURRAY: I have. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: On Page 2 under 13, at the very end it says, all generators must be equipped with sound attenuating housing to reduce noise. Okay. When you think about the half-hour exercise period ought to be reduced -- the noise ought to be reduced as much as possible, we don't bother putting a number, maximum number for control? We realize during emergencies that's not an issue, but during that process should we not try to minimize the noise? If we're requiring sound attenuating, we ought to have some kind of a standard we associate with it, I think. MS. F ABACHER: Well, I believe we still have it in here. Shall not exceed the sound levels for manufacturing and industrial uses at 75 dba decibels, A-weighted decibels. COMMISSIONER MURRAY: I grant you that's true initially when it's purchased, but as it degrades over time due to the elements, that you could have somebody with a muffler that needed to be replaced and wasn't, and -- you know. I mean -- MS. F ABACHER: Well, you recall that that would cover this, if Page 3 September 6, 2007 it was during the exercising cycle and somebody complained, then we could send code out there. But remember, when we looked at those sound measurements that half the time they really couldn't attain that level. COMMISSIONER MURRAY: I recognize that. And I'm not arguing with you, I'm arguing with -- in favor of a little more stringent statement. But if this works, that's fine. I just think that it could be a problem. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And Mark, just understand, this is our third meeting for this, correct? CHAIRMAN STRAIN: Probably. COMMISSIONER SCHIFFER: And -- but this is the exact same document we've had all along, right? MS. FABACHER: No, we changed it. We changed it to 30 minutes every week, no more than 30 minutes a week. It used to be an hour biweekly. And then the times were earlier in the day, and it was recommended that we change the times from 9:00 to 5:00 when most people are at work to reduce the nuisance. COMMISSIONER SCHIFFER: Okay. But the testimony we had, wasn't there more things we wanted to look into? For example, why aren't we looking into the front setback? MS. F ABACHER: We can -- you can pass it with that recommendation, but staff has concerns about, A, you can't really buffer it that well because of the fire problem of having hedges around it. And also I think that we discussed at our last meeting the fact that there would be deed restrictions in a lot of subdivisions. So I know that we don't -- the county doesn't enforce it, but we're trying to help these people out, and putting it in the front yard when their deed restrictions or the subdivision homeowners association won't allow it isn't going to help them. Page 4 September 6, 2007 COMMISSIONER SCHIFFER: Right. But that just means those people wouldn't have that opportunity. That's not our domain. And then the other problem was the rear setback being required to be 10 feet, yet what do you achieve from that? There's essentially nobody in the rear of the house. I'd just like to see -- you know, we had testimony, we had a fellow come in here, talk about stuff. I'd like to see some of that stuff incorporated. MS. FABACHER: Well, we did. His recommendation was to change the hours. Two of his recommendations were effected in here. COMMISSIONER SCHIFFER: So essentially we're putting them in the side setbacks still? MS. FABACHER: And the rear, if you can't get within 36 -- if a 36-inch encroachment into the side setback won't give you enough room, then you'll need to go to the rear. CHAIRMAN STRAIN: Any other questions, Brad? COMMISSIONER SCHIFFER: No, just disappointment. CHAIRMAN STRAIN: Comments from anybody else? Mr. Schmitt? MR. SCHMITT: Just to highlight from what Mr. Schiffer spoke about, the issue here is I've got to correct an -- I'm creating an amendment that can be used across the county. If I put that kind of wording in and say it has to be in the front yard, I'm going to eliminate a preponderance of the homes in the county -- COMMISSIONER SCHIFFER: But Joe, no one ever said it has to be. Right now it's prohibited from being. In other words, there might be an opportunity. But we didn't study it, we didn't study it. I mean, I don't think I ever wanted it to be have to be in the front yard, it's just an option that would have been available. CHAIRMAN STRAIN: I'm not sure the circumstances under which that option would be available could be written here today, because you certainly would want to make sure if it ever was in the Page 5 September 6, 2007 front yard there were additional protections for the neighborhood. I don't know if we could do that today. Maybe that's something, Brad, if the BCC feels that's an option that should be explored, they can make a recommendation for the next cycle to look at that further. Might be a solution to your concern. Any other comments? (No response.) CHAIRMAN STRAIN: Catherine, I still have a concern over the noise. I think it's ironic that the -- we're going to abide by the noise ordinance except the times during power outages when these are run the most. So when the times are not run the most, they have to abide by a noise ordinance, but when they are run the most they really don't have to be. And the times when they are not run the most most likely are the times that we will be forced to sleep with our windows open for circulation and ventilation because our air conditioning generally won't run off most generators, unless you get a really good-sized one. So we really are setting it up so that we have the most noise during the worst times. And that has frustrated me from the beginning with this ordinance. I don't disagree we need an ordinance, I absolutely think we should. But I'm very uncomfortable with that part of it, and that's the comment I really wanted to make to you and see if you had any idea -- MS. F ABACHER: Well, Commissioner, the thing was that I think our expert had recommended that we allow them to go almost all the way to the property line and the side yard. And that's one of the problems staff has. When you get that close, you know, to the neighbor -- we're trying to prevent you from getting closer to the neighbor. But your point about the times when it's going to be the noisiest, well, I think that Mr. McManus, who was here to speak to us, discussed the fact that the permanent generators won't be nearly as bad as the temporary diesel and gasoline generators that people will have Page 6 September 6, 2007 and hook up anywhere and they can essentially put anywhere they want. That's going to be a lot louder than what we're regulating here. CHAIRMAN STRAIN: Are those regulated, those temporary-- those small ones, those noisy ones? They're no regulation on those at all? MS. F ABACHER: Fire. You can't put them in the garage. COMMISSIONER SCHIFFER: I mean, that's not even a fire code, that's supposedly the intelligence of the person running it. But in multi-family it's 10 feet away from the building. And the other problem, Mark, is that this code is forcing them to be between the buildings, which essentially is a canyon of noise. And if the poor guy next to you has his window open, you're kind of making that side of the house unsleepable. MS. F ABACHER: Excuse me, but Commissioners sometimes I think our expert said that just air conditioning condensers, which are allowed the three-foot encroachment, are often louder than this unit. COMMISSIONER SCHIFFER: He wasn't an expert on that. We could look at the -- well, but see, if the air conditioner is on, then obviously all our homes are air conditioned, my windows are closed and my neighbor's air conditioner is not the problem. That one guy with a generator, one guy not. The canyon effect of noise between buildings and this forcing it in the side setback kind of is a problem to me. CHAIRMAN STRAIN: Well, it's forcing it either in the side or rear. I know you're suggesting that we add the front as an allowable, but that still doesn't mean the side wouldn't be used. COMMISSIONER SCHIFFER: Right. Forget the front for now, because like you said, there would be a lot of other things that'd have to happen with that. Why are keeping it 10 feet off the rear? Maybe the best place for it is pushed far back to the rear setback. I mean, what's the 10 feet for? MS. F ABACHER: I just think it's separation of properties and Page 7 September 6, 2007 trying to protect again from the noise, not being right on the fenceline. COMMISSIONER SCHIFFER: I think, you know, that wouldn't put it as close as we're putting it on the side setback. MS. F ABACHER: So what would your recommendation be, that it go anywhere in the rear? COMMISSIONER SCHIFFER: I mean, the logical place where it might be way off in the rear corner and have everybody put it there. CHAIRMAN STRAIN: But see that -- in my perspective that's the most illogical. Because what you're doing then now is taking your convenience and making it most inconvenient for your neighbor by putting it as close to them as possible. Actually, if you want the convenience ofa generator and the noise that it generates, that disruption ought to be yours to deal with and less on your neighbor. So your philosophy would push it more on your neighbors, not less. COMMISSIONER SCHIFFER: But I don't see that, because the rear setback for the building is going to be greater than this, this 10 feet. So back in the back yards the yards are open. The side yards are narrower than the rear yards. You probably have 50 foot between buildings. In the year, where you could have some of the things we approve here six feet between buildings. But let's say in the other conventional zonings you'd have maybe 10 to 15 -- or 15 feet between buildings. CHAIRMAN STRAIN: The farther back you go in the rear yard the closer you're going to be to your neighbor's rear yard, to his home COMMISSIONER SCHIFFER: Right-- CHAIRMAN STRAIN: -- that's what I'm saying. We should be looking at the opposite. We should want these nested closer to the units that they supply the power to be less impactful to the neighbors, not push them farther away from those units so that the neighbors get them closer to them. I would think we would want -- Page 8 September 6, 2007 COMMISSIONER SCHIFFER: I mean, the rear setbacks are great. Not as great as the front, but they're certainly much greater than the side. I mean, when you put the thing three feet off the wall, this thing's three feet off the property line, probably. CHAIRMAN STRAIN: I agree, the sides are a problem, Brad. I have no doubt about that. But I don't want to make -- I can't see making the rears a worse problem. Already -- but that's just my thought. Commissioner Adelstein, you had a -- COMMISSIONER ADELSTEIN : Yes, the noise ordinance as amended makes very little sense. We have a situation here where we have a noise ordinance and we live with it. There's no subject to this that just because this is going to get a little loud or this is going to have a problem they should just be able to say oh, no, we're not going to use that ordinance right now. If it's there, and it is there, it stays there. How they're going to handle it and how they're going to fix it for themselves, that's up to them. But right now the people who are in their neighborhood would have a tremendous problem for no reason at all, or under the law that's now out -- that is now in their ordinance. CHAIRMAN STRAIN: Okay. Anybody else have any comments? Mr. Schiffer? COMMISSIONER SCHIFFER: Well, the testimony that the guy gave and the charts he showed would mean if we use the noise ordinance, then no system would work. I mean, the data he was giving us said that. So essentially you're saying if you don't allow the noise ordinance to be dropped during a state of emergency there's no generator that would work. CHAIRMAN STRAIN: Right. Ms. Caron? COMMISSIONER CARON: Just to get back to this whole Page 9 September 6, 2007 business of the final line here, all generators must be equipped with sound attenuating housing to reduce noise but are not subj ect to the provisions during power outages. But in the sentence before, everybody has to do that and they have to follow the noise ordinance. So what you're really exempting in the last line are just portable generators, not the permanent ones who already have to follow this noise ordinance anyway, correct? CHAIRMAN STRAIN: No, this can't apply to portable generators, because you're talking about permanent fixtures. So portables are exempt from this particular -- COMMISSIONER CARON: Oh, I'm sorry, yeah, yeah. CHAIRMAN STRAIN: What I'm thinking, Catherine, if you just drop the word -- from the word "but" on in that last sentence, that would probably make it more palatable. COMMISSIONER CARON: Because they already have to be that way. We've required it in the sentence before. It's not suddenly going to go away just because we have a power outage, they're just going to be using the generator that you've already said has to follow the noise ordinance. MS. FABACHER: Commissioner, what if we put -- just added permanent emergency generators. All permanent emergency generators must be equipped with sound attenuating devices to reduce nOIse. COMMISSIONER CARON: Period, yeah. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: The sound attenuating is, you know, options you can buy on the housing. And there's multiple options, too, so -- COMMISSIONER MURRAY: You've got to have a standard. COMMISSIONER SCHIFFER: What Mr. Murray is saying I think is kind of correct, you know, the most minimal one. But again, you know, I think different companies are going to have different Page 10 September 6, 2007 ratings for their -- so unless we study carefully what's available on the market and set a standard -- CHAIRMAN STRAIN: Well, in a way we have. Because when it says all permanent generators must be equipped with sound attenuating housing to reduce noise, yet in the prior paragraph it says the sound levels should not exceed the Ordinance 90-17 noise ordinance as amended, aren't we accomplishing that? Basically they can't exceed that noise ordinance. They better sound attenuate it to get to that point. And if they haven't, they got to. COMMISSIONER SCHIFFER: And that's only on the testing of it, or the exercising, as he called it. So the point is, you know, that it won't -- I don't think anyone's going to make that anyway. So what essentially this ordinance is saying that you have to buy a unit that meets our sound ordinance during the exercise period. And he showed us on those charts, which we don't have a copy of, that none of the units would. CHAIRMAN STRAIN: And so what we're thinking is that during the exercise period they're going to have this sound attenuation on it and then when there's a hurricane they're going to rip it all off because they don't have to have it -- COMMISSIONER SCHIFFER: I think even with the sound attenuation it won't meet our -- if it would meet our sound ordinance with attenuation then let's require -- you know, really study that and really put that in there, and then the guy next door doesn't have a problem. But standing on the property line three feet away from it, I don't think so. CHAIRMAN STRAIN: Catherine, was the gentleman's testimony, and I can't recall, that it wouldn't meet our standard decibel level of 65 or that it wouldn't meet the manufacturing and industrial levelof75? MS. FABACHER: Seventy-five. And the results were that in most cases they did, but there were excursions above -- it met it Page 11 September 6, 2007 generally, but when you looked at, remember the octave bands he had, there were just certain -- COMMISSIONER MURRAY: Had to do with load. MS. F ABACHER: Yes, yes. COMMISSIONER SCHIFFER: And again, we didn't get handouts or any data. My recollection was even during the test mode, which wasn't fully loaded, they weren't cutting it. CHAIRMAN STRAIN: Well, Brad, do you have any suggestions for better language? Can you think of any? COMMISSIONER SCHIFFER: No. I just fear the thing three feet off the property line. CHAIRMAN STRAIN: Well, I do, too. But I think if we don't have this they could still do something that could be worse. COMMISSIONER SCHIFFER: Right now we have anarchy, I guess, out there. MS. F ABACHER: No, right now we have a staff clarification that the zoning director issued that pretty much follows this right here, except for the changes you're making now. CHAIRMAN STRAIN: On that basis, I think this is better than nothing at this point. If we can refine it as time goes on, through better input, we have that opportunity to come back at every single cycle and refine it if the staff feels that they've got better information. So maybe this is a good thing to get on the books, get it there to start with, and let's just go forward with that. Any other comments from anybody? COMMISSIONER SCHIFFER: Okay, so we're going to pass this stating that it's -- it has to meet the sound ordinance during its test mode? CHAIRMAN STRAIN: My suggestion would be we leave it like it's written with the exception of the changes we recommended them dropping those last verbages and adding the word permanent in front of generators like Catherine suggested, and that this go into place like Page 12 September 6, 2007 It IS. It meets the policy that's already been put in place by staff. And that as staff can find better ways to refine it through the future cycles, we get it done that way. It seems reasonable at this point. Anybody else? COMMISSIONER MURRAY: That's with deleting but are not subject to the provisions of? CHAIRMAN STRAIN: Right, yes. COMMISSIONER MURRAY: That's a good start. CHAIRMAN STRAIN: Is there a recommendation for approval ofLDC Section 4.02.01,4.02.03 and Tables 3 and 4? COMMISSIONER MURRAY: So moved. CHAIRMAN STRAIN: Mr. Murray made a recommendation to approve. Is there a second? COMMISSIONER MIDNEY: Second. CHAIRMAN STRAIN: Seconded by Mr. Midney. Is there any further discussion? (No response.) CHAIRMAN STRAIN: Hearing none, all those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? COMMISSIONER SCHIFFER: I'll be opposed. CHAIRMAN STRAIN: Okay. 8 to 1, motion carries. The next item on our agenda is the -- probably the most interesting one, is the outdoor seating. Page 13 September 6, 2007 COMMISSIONER ADELSTEIN: Oh, boy. CHAIRMAN STRAIN: Mr. Schmitt, I know Ms. Murray was-- this was actually delayed a couple of times so she could be present. Is she intending to be here for this today or do we need to go to the other ones first? MS. F ABACHER: No, no, she's entrusted me to explain the situation to you. CHAIRMAN STRAIN: Okay. MS. F ABACHER: Okay? CHAIRMAN STRAIN: Sounds fine. MS. F ABACHER: The last time you saw it, what we had required was that everyone who needed a temporary use permit for outdoor serving area had to have an annual permit and they would have to go to the board, every single petitioner. This has been modified now to say that -- to ask you when you make your application that you provide your certification of zoning, which you have automatically as a business. And you also go to code and request a code violation history, which they have on their system and they can produce for us, which would be pretty much a nominal fee. If you have -- and it has to be within 30 days of your application date. If you have no violations, no violation history, then you can simply have it done administratively. You can have your permit issued, you can have your permit transferred, you can have your permit renewed for this outdoor seating -- serving. If you do have -- if you come back and you do have a Notice of Violation either for a new permit, for renewal of a permit or even a transfer of a permit, then you're going to get essentially kicked to this conditional use process. So they would have to come before this body and then go to the BZA to be able to receive that -- And so the violation history will be purely on the noise ordinance, too. I mean, if you have weeds or things like that, that Page 14 September 6, 2007 won't count. And also what we've done is given the county manager or designee but also the special magistrate through code enforcement who often hears -- that's why this stuff ends up before it ever gets here. So it gives that special magistrate in issues where it can't be resolved, problems can't be resolved, to go ahead and suspend that license. In which case you can then -- the applicant can appeal it or he can schedule a revocation hearing before the BCC, who then -- I mean, I'm sorry, before you and the BZA, who then decide whether to go ahead and give the permit or revoke it permanently. And then in another year they can come back and try again. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Does the history, the code history have -- does it contain the information if a code violation were issued but upon adjudication it was not followed through or, how shall I say it, the magistrate found in favor of the person who was cited rather than the county, is that history included in what is talked about, or is it just the act of simple citation? MS. F ABACHER: No, it would be the full case. COMMISSIONER MURRAY: The full case. MS. F ABACHER: Full case. COMMISSIONER MURRAY: And in the prior document, I thought I remembered it being the first 24 seats were exempted, now it's 100 percent. MS. FABACHER: We're not going by seating anymore, because this lets off all those businesses who just have seats for people waiting and they don't serve anything. It's when you have your seating and you're actually serving food or drinks that the problem generally arises. So that's what we're trying to do. So at all these other businesses that just have seating where people sit there, smoke a cigarette and wait for their table, they're not regulated.f Page 15 September 6, 2007 COMMISSIONER MURRAY: A place like Outback, if you go there, a waiter or waitress will come out and offer a drink while you're waiting -- MS. F ABACHER: Well, then they would need the permit. COMMISSIONER MURRAY: They would have to go for a permit? MS. F ABACHER: Yes. COMMISSIONER MURRAY: And if somebody -- if they were cited, they would then automatically go into limbo, pending whatever decision -- MS. F ABACHER: Well, they would go to the special magistrate upon issuance of the Notice of Violation, the special magistrate before code enforcement. And then that would be a -- it's a hearing that's prescribed in the LDC. MR. SCHMITT: Let me qualify that. Because Outback, I think it would be hard to say that's an outdoor serving area. That's something more done out of courtesy for those sitting and waiting. There's really no tables, it's more just people sitting. So I would -- that would be a stretch. I would probably say that would not require a permit, because it would not be a deemed an outdoor eating or drinking area, other than sometimes they'll serve a drink so you can -- while you're sitting and waiting. COMMISSIONER MURRAY: It's a hospitality matter. That's their forum. MR. SCHMITT: That probably would not fall under the regulation, I mean, that example -- COMMISSIONER MURRAY: But that would be one of the ambiguities that a code enforcement officer might run into in attempting to enforce that -- MR. SCHMITT: I think clearly if the outdoor seating area is defined and recognized as an outdoor seating area with tables and service would require the permit. That would not fall under the Page 16 September 6, 2007 category of an outdoor serving area. CHAIRMAN STRAIN: And Joe, the way that might be looked at is tables that are counted for seating capacity for transportation purposes would be the ones that would be affected by this -- MR. SCHMITT: Maybe the best way to define that, yes. CHAIRMAN STRAIN: Let's take this section one page at a time so we all can be a little more organized, and let's look at Page 1, which is your introductory statements. Is there any questions on Page I? Mr. Murray? COMMISSIONER MURRAY: Yeah, the reason I -- I struck the words promote a healthy relationship because I don't know what that really represents. I'm sure that it intends to mean something, but I don't know. Do you want to have a healthy relationship with somebody in the context of this? CHAIRMAN STRAIN: Well, this isn't -- that isn't part of the ordinance, that's strictly staffs introduction. COMMISSIONER MURRAY: I understand it's a reason, but I'm trying to understand what -- a relationship that's being developed that's healthy here. But okay, that's not part of the ordinance, you're right. CHAIRMAN STRAIN: Any other questions on Page I? COMMISSIONER TUFF: I would like just for two things for clarity. That $300 then, everybody that would have tables or chairs or for people to wait or have a drink would be subject to that, so we're going to have 1,000 restaurants that would have to pay 300 bucks next year. COMMISSIONER SCHIFFER: Every year. MS. FABACHER: Well, I don't think it's 1,000. COMMISSIONER TUFF: Well, it's a large number, I know. I'm just curious, that's what it would do. And then if they had that one neighbor that complained, like for example, I think of like the Quality Inn, they've had that chickee hut for 100 years, and there's that place they can't get, they go and pad the Page 17 September 6, 2007 elevators and it hits that one unit on that apartment, and I think they may have bought the place and the problem went away. But if they had that person that complained, then they'd have to go in for a $4,000 charge to go say, hey, I want to have my renewal, even though I've been there for 30 years. MS. F ABACHER: Well, not exactly, because there will be another intermediate step there in that the code officer is going to be able to either determine that it is a violation or investigate it and say I could find no evidence of violation, in which case no notice would be issued as far as, you know, nuisance complaints. COMMISSIONER TUFF: Is what I guess my biggest concern about this is I know the area where it is a real problem for somebody. And we're just blanketing all these restaurants. And there's a -- you know, I think of Chrissy's Cafe, they have little tables out there and chairs, and there's more than 24 spots there. And each of these places will have to have a $300 fine. And all it takes is one neighbor that says I'm going after these guys, now they have to go for the $4,000 charge. So there could be a -- I think we're making regulations and fees and fines for -- you know, $4,000. If you figure you have 10 bucks a shot -- a plate, you're going to serve 800 more people before you even break even for a year. And I just think it's an extreme burden on businesses. And I -- ifthere's a better way that we didn't allow this to happen in the first place near a residential area, I think we'd have something. But there's a lot of people that have been in existence for a long time that will be greatly affected by this. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I think I'd like to get beyond Page 1. CHAIRMAN STRAIN: Well, we're still on Page 1, and Mr. Tuffs expressed his concerns about the cost. Is there anything else on Page 1 ? Page 18 September 6, 2007 Mr. Vigliotti? MR. VIGLIOTTI: I also agree that $300 is a lot of money for a small business owner, if each and every little business owner is going to be affected by it. COMMISSIONER MURRAY: I might as well chime in the same. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I might as well chime in the same. I think it's very expensive. It comes to mind a little pizza place in East Naples and there's just a new couple bought the place up and they're struggling trying to make some money. And they're going to be subject to this. They have two plastic tables and chairs outside. Three hundred bucks to them is probably a lot of money. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: This is a situation where we're talking about a major business. It is a major business. You're talking about the $4,000, the $300, this is a situation that is intact now and should be intact now. If we're going to deal with smaller businesses, they can afford it, they can't afford it, that's up to them. It's not a matter of the county deciding. The county has said this is what it's going to cost, if you want to use it, use it. If you don't, don't. CHAIRMAN STRAIN: Well, I -- we have quite a few pages here to go through, and before I'm going to comment on the cost or anything, I would like to get answers to a lot of questions I have on the rest of the pages first. So let's move on to Mr. Schiffer, you're still on Page I? COMMISSIONER SCHIFFER: No, I'm sorry, Page 2. CHAIRMAN STRAIN: Page 2, Mr. Schiffer. COMMISSIONER SCHIFFER: Couple things. We're calling this an annual temporary permit. Why are we using the word Page 19 September 6, 2007 temporary rather than just an annual permit? MS. F ABACHER: Just to reinforce the fact that it can be -- it's something that can be revoked. You don't have a vested right in being able to have outdoor service areas. You can apply for the permit, but if you violate the rules of this ordinance or the noise ordinance then you can lose that right. COMMISSIONER SCHIFFER: Okay, because our -- MS. F ABACHER: Temporary in that it's not for a long term, it's just annual. COMMISSIONER SCHIFFER: Right. But our noise ordinance did refer to annual permits as the ability to easier to yank an annual permit than anything. But we'll keep it that way. The applicability, this is to everybody who serves food. And obviously since you and Joe didn't agree on the Outback, I think we should really make that clear. Because there are seats that are out there. For example, in the architectural standards we put seating as one of the things that are encouraged. So if an ice cream parlor comes in and people are taking that ice cream and eating it out there and the seats are probably right in front of it, do they apply? And how do you -- so I do think that before we go further, if these things don't apply, like you say, Joe, but you said they did, so I think we really have to make that clear. Number two, if I come in October and buy my permit, what happens to me based on the wording of number two? Which says any temporary use permit issued under this code shall expire on September 30th of the year it is issued. So doing a little bit of code programming, that would be called an endless loop. So in other words, if I buy in October -- so why aren't they just annual licenses, and why are you aiming them all towards one point in time which could be a burden on -- MS. F ABACHER: It's true. But it's the same -- we did that so that they would be in sync with when you're required to come in and Page 20 September 6, 2007 get your annual occupational license. This was for the ease of the applicant. COMMISSIONER SCHIFFER: So if I buy my October license, what happens to me based on the wording of number two? It expired before I bought it. MS. F ABACHER: And you buy it in October? COMMISSIONER SCHIFFER: Right. MS. F ABACHER: I don't see the problem. COMMISSIONER SCHIFFER: Any temporary permit issued under this code shall expire on October 30th of the year it is issued. So if I come in for my primary license -- MS. F ABACHER: September 30th. COMMISSIONER SCHIFFER: Let's say I come in and -- you know, my license after September 30th, it will last a full year? MS. FABACHER: No, it runs from September 30th, 2007 to September 30th, 2008. COMMISSIONER SCHIFFER: My point is -- MS. FABACHER: You want us to prorate the fee, is that what you're saying? COMMISSIONER SCHIFFER: No, the initial permit, I come in for my first-time permit after September 30th, you're telling me it will expire that year. But anyway -- MS. FABACHER: Well, yes. And I think in five it says you have to get it no later than March 31 th, 2008. COMMISSIONER SCHIFFER: Well, a new building, a brand new building opens up in October. He comes in -- but anyway. MS. F ABACHER: Well, he'd come in when he gets his occupational license, he'll get this license. COMMISSIONER SCHIFFER: And it won't expire till the following year, not the year it's issued. CHAIRMAN STRAIN: I think what Brad's trying to say is if someone comes in July and gets the -- pays $300 and gets one of these Page 21 September 6, 2007 temporary permits, does it expire every single year on September 30th? So he only has two months with it. That's what I think he's trying to ask. MS. F ABACHER: Right. And I'm saying does he want us in those situations to try and prorate the permit fee? CHAIRMAN STRAIN: Okay, well that -- but I think that's the question he's trying to get to. MS. F ABACHER: Well, no, I can't -- CHAIRMAN STRAIN: Brad, the answer to your question is yes, it would expire in two months. They pay $300 for two months versus if they waited till September 30th or October 1st, then they'd pay $300 and they'd have 12 months. COMMISSIONER SCHIFFER: And what I'm saying also is if you come in after September 30th, which is three more months, and you buy a ticket that expired last September 30th -- because it says it expires on the year it's issued, so I have -- if! bought one in October, 2007 it expires in September. Anyway, it's just a wording problem that I think should be cleared up. That's enough for that. CHAIRMAN STRAIN: You're still on Page I? COMMISSIONER SCHIFFER: Well, one other comment. In four we're looking at section -- what? CHAIRMAN STRAIN: I'm sorry, I'm getting sidebar here. COMMISSIONER SCHIFFER: Okay. On four we're referencing Section 10.08.00 as the where to go for the public hearing. MS. F ABACHER: Correct. COMMISSIONER SCHIFFER: Yet further on we have a section within this which is 5.04.07.D. Why don't we just send everybody to that? Because that ultimately sends them to 10.08. But, in other words, it's the public hearing advertising requirements. So throughout this document we're sending them out of here. Why don't we send them into within here and then we can control them all from one spot. Page 22 September 6, 2007 MS. F ABACHER: As far as the conditional use process? COMMISSIONER SCHIFFER: Right. MS. F ABACHER: Well, just cross-referencing a process that's already in place, because we didn't want to create a whole new process, and it's generally conventionally what we do, if we're going to use an established process, we just cross-reference -- COMMISSIONER SCHIFFER: No, you're missing my point. Go to Page 5, look at D, and it's called public hearing and advertising requirements. So the one that I saw on four essentially requires a public hearing. Why don't we just reference this section and then from here you'll ultimately send them into 10.08. CHAIRMAN STRAIN: I think what he's saying is procedures established in Section D of this 5.04.07.D, he's referring -- he wants you to refer back to this item of the LDC to look at the process to get to a public hearing. MS. FABACHER: We can do that. COMMISSIONER SCHIFFER: Because if you don't, like, for example, four sends you straight out, you may miss the advertising requirements and other things that are in there. So I think -- and that happens on other areas that we refer to within the -- if we do anything special. MS. F ABACHER: All right, we can fix that. And Jeff Klatzkow has recommended a word change on the second page there, number two, any temporary use permit issued under this code shall expire on the following September 30th in the year it is issued. MR. KLATZKOW: The following September 30th. COMMISSIONER SCHIFFER: That would cure the -- MR. SCHMITT: That still creates confusion. Because if you get it in July, what you're -- MR. KLATZKOW: The following September 30th. MR. SCHMITT: Okay, that clarifies it. Page 23 September 6, 2007 COMMISSIONER SCHIFFER: My concern really wasn't issued in July and getting ripped off for three hundred bucks. My concern was, you know, that the way it's worded there is a no-man's land after September 30th of that year, which that would cure. MR. SCHMITT: The intent was if you were issued prior to September 30th, that expires 30th of that year. If it's issued after September 30th of that year, it expires the following September 30th. COMMISSIONER SCHIFFER: Right. MR. SCHMITT: In essence that's the way it needs to be written, make it very clear. CHAIRMAN STRAIN: Ms. Caron, then Mr. Adelstein. COMMISSIONER CARON: Yeah, I'd kind of like to get back to the focus of why we're even having a discussion on this. And it is not to penalize small restaurants and charge them $300 a year for a permit. There's no need for this to be an annual permit. Issue a permit one time. You're doing nothing with these people unless they create a violation. You have no other need to be involved with them unless they create a violation. And then any costs that go to take care of those violations should absolutely kick in. And if they're going to be a violator and it costs them $4,000, too bad. The goal is for people not to be violating our noise codes and not to be bothering residential homeowners. So I think there's really no need for this to be an annual thing. Charge them one time for a temporary use permit and let it go. It's a cost of setting up a business. It's not going to put anybody out of business. As to the whole issue of when the permit gets issued, it really is inconsequential. First of all, once you open a business, you don't have to have outdoor seating on day one or day two or month one or two if that's going to upset the fact that you're going to have to pay for the permit on July 30th and then again on September 30th. It's like just don't put the tables out until September 30th. It's not that big a deal. Page 24 September 6, 2007 The point of this is to get at people who are violating the health, safety and welfare of people trying to live near where these businesses are. That's the whole purpose of this. We have bars and restaurants that have created outside seating venues, and they are primarily bars and they are primarily those who have entertainment on the weekends and have televisions outside and everybody stands and screams at the games until 1 :00 and 2:00 in the morning. And that's what we're trying to protect. It has nothing to do with a little ice cream store who has three tables out front. It doesn't even have to do, I would agree with Mr. Schmitt, with Outback who wants to serve their patron a drink while they wait to get their table inside. Those are not the ones where complaints are happening. Those are not the violations that are happening. The violations are happening at places like Pelican Larry's up on Immokalee where their entire bar is open air. And they party on with music and T.V.'s and drunk patrons until 2:00 in the morning, and it backs right up to residential homes. COMMISSIONER SCHIFFER: Mark, can I ask Donna a question? CHAIRMAN STRAIN: Well, Commissioner Adelstein had a-- COMMISSIONER SCHIFFER: I just wanted to ask Donna a question -- CHAIRMAN STRAIN: I know, but he wanted to ask you a question and I wouldn't let him interrupt until Donna had her say. But go ahead, Brad. COMMISSIONER SCHIFFER: No, no, let him go ahead. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: You started out with a situation here. If we say that March 31 st of any year is the latest time you can get one of these permits, it's not a matter of if you get a new company and open up in July you can open it up. You can't. Because if you go past March 31 st, you can't use it. Page 25 September 6, 2007 COMMISSIONER SCHIFFER: That's the initial. CHAIRMAN STRAIN: That's been -- Mr. Schmitt already suggested a correction for that by referencing up above by using the following permits are good through the following September 30th. COMMISSIONER ADELSTEIN: They're good till September. But you can't get one unless you go before March 31 st. In other words, if you get one by March 31 st you're fine. After that you can't until the next year. So the answer is simple, this is a situation that you can do it up to March 31st, you're okay, but if you go past that you can't get one in. CHAIRMAN STRAIN: Brad, did you want to-- COMMISSIONER SCHIFFER: Just to answer that. I think the intent is that they're going to hustle in, and that's on the next page, we'll talk about it. They're going to bring -- everybody has to round up before that. But Donna, let me ask you a question. Is the existing noise ordinance not able to control that? Because here's the problem, this thing is based on you're going to be issued one or more Notices of Violation, so if you can't get a violation now, you're not going to get a violation then -- COMMISSIONER CARON: Precisely. I think that's a flaw-- COMMISSIONER SCHIFFER: -- then this isn't going to work. The violations -- I mean, reading the noise ordinance, which is in front of us, the violations are pretty severe. You can put a guy in jail for 60 days. Ifhe does three of them in 12 months, you can go yank whatever he's doing. So theoretically, the cops, if they're getting violations at these places, can go take the bar. So if they're having trouble getting these violations recorded -- are they? Because how are they going to get the one violation that they need to have the axe on this thing? COMMISSIONER CARON: I think if you talk to people like Mr. Schmitt, it's not happening now. Page 26 September 6, 2007 MR. SCHMITT: The noise ordinance is a difficult ordinance to enforce because it has to be a certain decibel, it has to be for a sustained period of time. Noise ordinance is coming back to the board again to be amended on Tuesday, having to deal with issues with ATV's and such. Unfortunately there's some subjectivity. One of the things I'm going to ask the board is that we again do a wholesale rewrite of the noise ordinance just because of some of the difficulty in the enforcement of it. But I'm intrigued by what Ms. Caron brought up may be a better approach. And certainly it does not penalize the smaller businesses. But again it does create exactly what you said, Brad, that I still have to have a violation in order to bring this. The issue here is to try and create some venue to bring these issues before the board or the BZA to withdraw the outdoor use authority. COMMISSIONER SCHIFFER: Well, we live in Florida. We don't want to withdraw outdoor eating, outdoor dining. MR. SCHMITT: Right. COMMISSIONER SCHIFFER: That's one of the beautiful things here. But the point is that if we can't get the existing noise ordinance to trigger a violation, then that means it's not going to trigger one, which you need to have in this ordinance we're trying to write. So isn't our problem in the noise ordinance, not in this? And the scary thing is we're going to terrorize these small little mom and pops. You know, they're going to get to prove they have parking, to prove all the other things in this thing. This ordinance is just going to be government in the face of little guys and it's going to really be a tough thing. You're going to give them three months probably after it passes to round everybody up or they're going to be in violation. This is a sad ordinance. And I think the problem is in the noise ordinance, it doesn't need a new ordinance. Page 27 September 6, 2007 CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER SCHIFFER: Enough said. COMMISSIONER CARON: No, I think that's correct. I think the problem is in our noise ordinance, because it is too difficult now to get a reading when they go out there in the middle of the night. And by the time the cops show up and are called, don't you think that that television's been turned down? Don't you think they've told the patrons to shut up? Absolutely. And so, you know, I think that again this may be better left until after the noise ordinance is addressed. But everybody just needs to be aware of how serious an issue this is out there. And if it's not serious in your area right now, I guarantee it will be. It's coming. Don't think that you're immune just because you happen to live today in an area where there isn't a problem. In my neighborhood there wasn't a problem a few years ago, and there is now. CHAIRMAN STRAIN: It's getting -- it's 11 :58. I have been wrong many times in the past when I suggest that we work through lunch thinking we only had a little bit of stuff to finish up. Right now the court reporter either needs a break or we need to take lunch. And I would suspect based on the fact we're only on Page 1, I get the tone of the commission that maybe this isn't the right way to go. But regardless, we're going to have to go through each page of this, because if it goes to the BCC, even with a recommendation of denial from us, and they pass it, we still want it in the best form it can be in. So that's going to take time. So I'm suggesting ifthere's no objections we take a one-hour break, come back here at 1 :00 and resume this meeting. Is that in favor with everybody? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: Okay. MS. F ABACHER: Commissioner, we do have one public speaker here for this. Page 28 September 6, 2007 CHAIRMAN STRAIN: Then you'll have to come back at 1 :00. Thank you. We will break till 1:00. (A lunch break was taken.) CHAIRMAN STRAIN: Welcome back to LDC cycle one continued meeting. When we took a break, we left off on the 5.04.07 temporary use permits for outdoor serving areas. And we had moved forward at a snail's pace and gotten all the way to Page 2. And the discussion that we had worked into was about maybe the right way to fix this would be the noise ordinance and not necessarily through a separate ordinance. But regardless, I think we need to walk through all the pages of this just in case any ordinance like this were to see the light of day past us. So with that in mind, let's go back to Page 2 and ask any further questions on Page 2. Because I do have a couple. Go ahead, Brad. COMMISSIONER SCHIFFER: And this is something. A long time ago, and Joe would know, that there was a -- the commission was trying to figure out ways to eliminate maybe some of their work. Is this something we really want to send to the County Commissioners, or is this something that the CCPC could handle? I think we should give them that choice. MR. SCHMITT: I have are to defer to the county attorney, because that then becomes a legal issue of what you can do through your authority. Do you know, Jeff? MR. KLATZKOW: Are you referring to the conditional use? That's got to go through the BZA. MR. SCHMITT: That was my understanding. MR. KLATZKOW: You get to hear it but you have to go through them. COMMISSIONER SCHIFFER: So it would actually come Page 29 September 6, 2007 before us prior to them? CHAIRMAN STRAIN: Yes. If you go to Section 10.08.00, that puts us in line. COMMISSIONER SCHIFFER: We could really clog the system with these. CHAIRMAN STRAIN: We're not there yet. COMMISSIONER ADELSTEIN: Ifhe doesn't get to his microphone, he won't have to worry about talking. CHAIRMAN STRAIN: I'm sorry? COMMISSIONER ADELSTEIN: Ifhe doesn't get to his microphone -- CHAIRMAN STRAIN: You're doing the same thing. Talk to the microphone. COMMISSIONER ADELSTEIN: I did. CHAIRMAN STRAIN: Not now. COMMISSIONER SCHIFFER: Mark, the other question I have on Page 2 is -- carries over to Page 3. Should I wait until we get done CHAIRMAN STRAIN: Yes. I have two things on Page 2 I'd like to ask about. Under A.3, the fourth line talks about after the parenthetical, it says have been issued to the operator by the code enforcement department. I thought the code enforcement department only cites the owner of the property. COMMISSIONER ADELSTEIN: I know. Good question. CHAIRMAN STRAIN: They don't cite an operator, because they can't attach the land by citing an operator. I think their ultimate goal is to cite the owner of the property, because that's where their liens or fines would have to go, I thought. Is that -- MR. SCHMITT: That's correct. COMMISSIONER TUFF: What page -- CHAIRMAN STRAIN: I'm on page -- we never got past Page 2. I'm on paragraph three on Page 2, the second line from the end. Page 30 September 6, 2007 MR. SCHMITT: The citation goes to the property owner. CHAIRMAN STRAIN: Okay. Because that's going to have to then be chased throughout the document. The document is always referencing the operator, and sometimes the owner, but mostly the operator. And then another question I have on this is, I had always though that outdoor seating was an accessory use to a restaurant. So how can we regulate something that's always been an accessory use, because most of the people who would have gotten this right as a permitted right would have expected the typical accessory use. On the other hand, if our goal is, from what I'm hearing, is to regulate entertainment, maybe this isn't an ordinance to write against outdoor seating, maybe this is an ordinance that should be addressing outdoor entertainment. That would bring in a whole more focused direction than going after all the places we cited as ice cream parlors and pizza parlors. None of those would be subject to this, it would be then outdoor entertainment, which means outdoor televisions, outdoor bands, outdoor speakers, things that are entertaining in nature. I'm wondering if we looked at that as an avenue? MS. F ABACHER: They're already covered. Code issues temporary use permits for amplified sound. So they're all -- CHAIRMAN STRAIN: That's not what I mean. If you have a restaurant and you have tables outside and you use that for eating, that's, to me has been an accessory use to a restaurant all along. It's done all over the county. Almost every restaurant probably includes that. And, as the gentleman who is going to speak to us had reminded me downstairs, that seating is counted when they pay impact fees, when they let out their transportation, and when they qualify for their liquor licenses. And to deprive them of that seating could result in a whole myriad of other issues that we haven't really thought out yet. So I was trying to figure out, okay, if that's a typical accessory use that's Page 31 September 6, 2007 covered under a myriad of other issues, what is it that's different? And the difference is the entertainment. And I don't mean outside speakers, I mean entertainment. And it's not a temporary use, it becomes a permanent use when they move a TV outdoors and put a band outside. Those are -- or music outside. Those are permanent uses. So I don't think a temporary thing is what -- a temporary permit under entertainment is what I'm suggesting. I'm suggesting maybe make outside seating with entertainment a separate function that's looked at, instead of just outside seating. MR. SCHMITT: And that is a suggestion. I like that. That may help narrow the focus. We would have to define what is -- at least what entertainment means. CHAIRMAN STRAIN: But maybe that would help get us past the issue -- MR. SCHMITT: I don't know if that would get to the issue of some of these outdoors bars. If they have amplified music, that's outdoor entertainment. If it has televisions, that's outdoor entertainment. CHAIRMAN STRAIN: Well, what outside bar wouldn't have anything. If you get an outside bar with nothing to watch or hear, what are you going to be outside doing besides eating, and that's okay. COMMISSIONER SCHIFFER: Smoking. CHAIRMAN STRAIN: They wouldn't be causing a problem if that's what they're out doing is just outside eating, so -- MR. SCHMITT: Part of the problem here, though, are some of the establishments, just because of the noise created by people, people outside. CHAIRMAN STRAIN: Cheering games on the television that's outside. COMMISSIONER SCHIFFER: Maybe. COMMISSIONER VIGLIOTTI: Ambient dinner noise. CHAIRMAN STRAIN: But ambient dinner noise, you have 25 Page 32 September 6, 2007 tables outside, 20 four-seaters with people sitting around chit-chatting, you're not going to hear it at Donna's house. COMMISSIONER MURRAY: They're guilty of congregation is what they're saying. MR. SCHMITT: That may help at least narrow the focus of the enforcement, if it's deemed outside entertainment. And those establishments that have, I would call it ambient noise, but noise associated with outdoor dining, it's just -- sometimes that even becomes disruptive. But, again, I guess you're right from a standpoint of it is an accepted conditional use -- I'm sorry, accessory use. CHAIRMAN STRAIN: Right. Ms. Caron? COMMISSIONER CARON: And for the most part, if you just are dealing with outdoor dining -- MR. SCHMITT: Right. COMMISSIONER CARON: -- then you are dealing with something that ends at 10:00 at night. We're not talking about, you know, carrying on into the middle of the night. And that's when the problem comes. But if somebody is -- has outdoor dining and -- I've got to believe, I don't think there's a kitchen in this town that stays open much past 10:00 at night. So people are pretty much gone by the time other people are looking to go to bed. So, you know, I don't think that becomes as much of an issue. So the entertaining issue I think is a good, probably a good and more narrow focus for this, as are other restrictions such as numbers of feet away from residential and, as you and I talked about, perhaps putting the zoning level under uses. You can put various restrictions on those use codes that would take care of situations like this. CHAIRMAN STRAIN: Okay, well, that's just some food for thought then, as we gel this thing together and finish our discussion on it. Brad, we'll move on to Page 3, and I think you expressed you had Page 33 September 6, 2007 a question? COMMISSIONER SCHIFFER: Let me just ask a question based on what you said to Donna. Donna, are any of those places that you cited places that don't have entertainment, that is just a cackling crowd keeping everybody up, or -- COMMISSIONER CARON: Off the top of my head, Brad, the ones I can think of all are, involve televisions and/or -- COMMISSIONER SCHIFFER: Music-- COMMISSIONER CARON: -- you know, music. The ones that I can think of off the top my head. Now, I'm not going to say that there may not be somebody out there who's pushing the envelope. But I think for the most part, we're talking about things that involve entertainment. There is one instance where we have actually entertainment inside the venue, and what they do is they prop open their back door, which affects the neighborhood. And then as soon as code enforcement is called or the sheriff is called, they close the door. And so of course nobody can prove that this is an issue. How we, you know, end up dealing with somebody like that, I'm not sure, other than to get the neighborhood to boycott going there. You know, there are certain things that we're just not going to be able to control. COMMISSIONER SCHIFFER: But the point is that it's not -- like a lot of places have little areas for smoking outdoors now. Is that becoming a nuisance or -- COMMISSIONER CARON: Not that I'm aware of. COMMISSIONER SCHIFFER: The question on this page, Mark, is -- CHAIRMAN STRAIN: You're on Page 3 now, Brad? COMMISSIONER SCHIFFER: Page 3. Up at the top, it says, essentially I think what that phrase is trying to do, it's really a carry over from the Page before, number 5. Is that if this passes, people Page 34 September 6, 2007 have to by March 31 st, anybody with outdoor seating has to come in and obtain this use permit. So essentially wouldn't this, probably based on past experience, become law in January. So we're giving people three most to round up, educate inform and get everybody in? I mean, I think that should be a lot more time than that. MR. SCHMITT: I think we're going to look at this issue of maybe a one-time start-up permit. And the only time you would have difficulty if there was a record of complaints. I think that's something that we can look at that certainly would not involve the $300 a year renewal. There's certain things I think we can maybe make that work, and I think it's an idea we want to look at some more. COMMISSIONER SCHIFFER: But isn't the purpose of this to state that everybody out there, there's no grandfathering, everybody has until March 31st, 2008 to get signed up. MR. SCHMITT: That's correct. This is putting everybody on notice saying -- COMMISSIONER SCHIFFER: Anyway, I would suggest we give people more time. I don't think you can even make aware of it by that date. COMMISSIONER CARON: Make it June instead of-- COMMISSIONER SCHIFFER: Whatever. We can discuss it as we go down. COMMISSIONER MURRA Y: Doesn't this whole thing have to go through a process and then ultimately be approved by the DCA? And would it be -- CHAIRMAN STRAIN: No, BCC. COMMISSIONER MURRAY: Only the BCC in this case? MS. F ABACHER: BZA. CHAIRMAN STRAIN: That's land development code. COMMISSIONER MURRAY: That's right, not GMP. Wouldn't that bring it very close to the time frame we're talking about? What is the Page 35 September 6, 2007 schedule? CHAIRMAN STRAIN: The schedule to go before BCC, does anybody know? MS. F ABACHER: October 11 tho And it should be finished by the end of October. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: As we think about these dates and discussions we have, there's a possibility we could see this in another rewrite on the 30th of September. If we have another meeting then, if this was the only thing left over, it might be something to consider after we get done discussing and recommending on this -- COMMISSIONER ADELSTEIN: I recommend that. CHAIRMAN STRAIN: Well, we're not there yet. COMMISSIONER ADELSTEIN: I understand that. CHAIRMAN STRAIN: Let's go through the process. Page 3. Anymore on Page 3? (No response.) CHAIRMAN STRAIN: Okay, Page 4? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: And it's the magenta in Number 2. First, I think there's a lot of vagueness here. It says the county shall have adequate reason why. Do we ever really define adequate reason? And if we do, we should reference that. CHAIRMAN STRAIN: What number are you on? COMMISSIONER SCHIFFER: Number 2. And then Number 3, I mean, essentially what that's going to require is a seating layout, it's going to require, you know, parking. It's going to require a study of the guy's floor plan. For example, the fire department is going to look at it. What would they be interested in other than making sure that this outdoor seating is not blocking an exit, not blocking exit discharge. So essentially this is going to require a plan that's going to Page 36 September 6, 2007 have to be prepared to be reviewed. And then there's going to have to be adequate reason, which is a little built vague. Number 3, the wording, without limiting the generality of all the other provisions. What does that mean, Jeff? You don't know? Okay. Number 3.A, that's again -- it sounds good, that's certainly something that belongs in the GMP, but it's kind of a vague statement. I'm worried how that would be interpreted. Three B, I think the intent there is that the use will not cause any danger as written. It's the use will cause any danger, so I don't think that's -- the intent there is that it's a negative. COMMISSIONER MURRAY: No. COMMISSIONER CARON: To refer to where the paragraph's written above. COMMISSIONER SCHIFFER: And the use will cause any danger or health hazard. MS. ISTENES: You have to read it -- I'm sorry, Susan Istenes for the record. Read it in its entirety with the qualifying paragraph under three and it will make more sense. COMMISSIONER SCHIFFER: Well, then shouldn't it be whether the use or something -- anyway, if you think that's written good. D, the use will be -- I guess the same problem. But essentially what we're saying, though, is if the use is allowed indoors, it would be allowed outdoors then, right? If whatever use is expanding to the exterior. I know we have some limited uses outdoors like storage of materials and stuff like that, but -- I mean, since this is going to be outdoor seating for an existing use, wouldn't it always be -- never be in violation -- COMMISSIONER ADELSTEIN: No. MS. ISTENES: There could be circumstances, you could have specifics in a PUD, for example, that might prohibit certain things or Page 37 September 6, 2007 there could be other violations of the code. COMMISSIONER MURRAY: This is off again here. Would you click the button or something that makes this work. CHAIRMAN STRAIN: Pull your mic a little closer to you, too. COMMISSIONER MURRAY: Thank you. Now I'm hearing you. COMMISSIONER SCHIFFER: E, down to 3.E is essentially how would somebody prove that? You would have to have a parking analysis for the whole center. So to get this permit, you would actually have to prove that you have sufficient parking for those tables. And again, that would generate a plan. You'd have to do something to show that. MS. ISTENES: You actually have to do that now. So the parking requirement can be based on seating for restaurants. So you do have to have enough parking to meet your seating. Where you typically don't run into a problem with that would be like in a shopping center situation where the parking's is based on shopping center calculations, which is usually more than adequate to accommodate for restaurants because there's limitations. So unless you have a standalone restaurant, it probably isn't going to be a problem. COMMISSIONER SCHIFFER: I'm not so much worried, I think anybody that designed outdoor seating area or showed on their plans that they were going to have seating that's outdoor would definitely have qualified already. But this is the little mom and pop throwing two tables out in front of the place that is going to have a problem with that. They're going to have to show through a study showing all the parking to prove that they can do it. MS. ISTENES: Well, if they're increasing the seating, they have to amend their site plan anyway. I don't think, generally speaking, if somebody throws a chair or two outside for somebody to sit and wait, that's not considered seating, per se. We're talking tables and chairs Page 38 September 6, 2007 where people would be served. COMMISSIONER SCHIFFER: So you think every time we go by a little shop and it has a couple tables outside, that they've come in and got approval for those tables and the walkways and -- MS. ISTENES: I don't know. COMMISSIONER SCHIFFER: I don't think so. MS. ISTENES: I don't think this is going to impact them anyway. CHAIRMAN STRAIN: I think what we're doing is regurgitating what we previously discussed that this does -- COMMISSIONER SCHIFFER: I'm just going down what's the requirements here. And I think that E requirement is going to be tough for a small place. F, I had a comment on. CHAIRMAN STRAIN: We're still on Page 4. COMMISSIONER SCHIFFER: I'm on F. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: I'll let F go. Again, I think it's vague. I think what we're starting to do is inspect these operators' prior behavior too much. But I'm done. CHAIRMAN STRAIN: Any other questions on Page 4? Mr. Murray. COMMISSIONER MURRAY: Yeah, going back to 3B, the use will cause any danger or health hazard or unreasonable inconvenience to any person or will damage any public or private property. Do we get involved in -- and I don't know that it will damage it, the actions of parties can damage it. Okay, that's a small matter. But private property was a question that came into my mind. How does one relate to that? Is that something that you can relate to, that it will damage or can damage private property? Suppose it's the property of the restaurant. MS. ISTENES: I'm going to have to look to Catherine for that, Page 39 September 6, 2007 it's her language. I'm not sure I can explain it. I think you raised some good points. MS. FABACHER: Absolutely. I was just thinking in terms, say, of buffers or vegetation or wall or just when these sort of uses historically spill out into the right-of-way there, as they normally do when you get overfilled, you're running up against abutting property or the street or required vegetation. MR. SCHMITT: Or in the parking lot, or people sitting on private cars, vehicles. MS. FABACHER: Right. A car is private property. COMMISSIONER MURRAY: Does the county insert itself in those matters? Because I know that the county has disclaimers associated with condominiums and HOAs, et cetera, PUDs. MR. SCHMITT: Some of that would be, certainly it's enforceable in the Sheriffs Office. But this only provides us some language that we can track and keep track of this as a -- if there was a previous violation that would then be -- it would then be deemed eligible to bring before the Board of Zoning Appeals as a previous incident or former incident that had taken place. COMMISSIONER MURRAY: All right, well taking the opposite side intentionally here, or let's say for the sake of argument that we had somebody who was in a position of authority or power who could issue a citation who had had a problem with an owner of a restaurant or a friend who'd had a problem, and somehow the person managed to -- or some damage was caused on the personal private property of the owners of the establishment. And that could mean that a code enforcement officer, in this extreme example, admittedly, could go in and give them a citation and tie them up because of that. MR. SCHMITT: No. MS. F ABACHER: I don't believe so, Commissioner. I just think that's one of the reasons, if something had happened in the past and say something had gotten out of hand and they damage private Page 40 September 6, 2007 property and a police report was written, then if the hearing went to the BZA -- to you and the BZA, then the neighbors or the people who were opposed to this continuation of this use, would say I have this police report from May such and such where somebody hummed a beer bottle through my windshield. It's not to enforce it, it's just to give the board and the -- advisory board and the elected officials criteria in which to revoke a permit. CHAIRMAN STRAIN: Are there any other questions on Page 4? (No response.) CHAIRMAN STRAIN: Ifnot, move on to Page 5. COMMISSIONER MURRAY: Could I ask Mr. Klatzkow a question? Does that fall under the category of attractive nuisance? Is that what were citing in that context -- MR. KLATZKOW: Not, it's not an attractive nuisance. An attractive nuisance is like a swimming pool without a fence around it that kids would go to. COMMISSIONER MURRAY: Well, it's an establishment that draws people in for the purpose of entertainment. I can -- MR. KLATZKOW: I guess what this is getting at, as Catherine said, it gives the board criteria to utilize when the neighbors come down here one day demanding that this conditional use be revoked, you know, he trampled on my lilies, he threw cigarettes all over my lawn, they threw beer, he did this. It's just creating just a general nuisance for the neighborhood and these are the criterias for that. COMMISSIONER MURRAY: Okay. And I don't object to that. I just wanted to make it clear to my fellows as well that, what my thinking process is always concerned with the balance of the equity issue and what about the potential for somebody -- MR. KLA TZKOW: This is all about getting a roomful of people here screaming about a local establishment. That's really what this is getting at. Page 41 September 6, 2007 COMMISSIONER MURRAY: Okay. Hopefully I won't make more of it than I should. Thank you. CHAIRMAN STRAIN: Page 5. Mr. Schiffer. COMMISSIONER SCHIFFER: The first sentence. Essentially what that's saying is that if you get a noise violation, the county manager can shut you right down, correct? MS. F ABACHER: Well, we had more in mind that when the violation went to the special magistrate, then they can suspend. They can't shut the whole business down. They can suspend the permit, if it was issued, to have outdoor seating with entertainment, as we're now couching it. COMMISSIONER SCHIFFER: Number three, what process would that happen under, the public hearing process, or -- MS. FABACHER: Well, you mean the revocation of the permit? COMMISSIONER SCHIFFER: Yes. It says it can be appealed to the Board of County Commissioners in 30 days. Is that like public comment on their agenda, or how would that happen? MS. FABACHER: That's something that comes from the nuisance board or the code enforcement board or the special magistrate. That's just the process as it exists there. COMMISSIONER SCHIFFER: But they wouldn't use the public hearing process below? MS. F ABACHER: They could. They're just different options. COMMISSIONER SCHIFFER: Well, what this is something is that if they don't like the decision, they can appeal it to the Board of County Commissioners. MS. F ABACHER: Right. COMMISSIONER SCHIFFER: So the process they would use is other than -- MS. FABACHER: No, it would be the same, the conditional use. COMMISSIONER SCHIFFER: Then maybe we could reference Page 42 September 6, 2007 it. MS. F ABACHER: All right. COMMISSIONER SCHIFFER: In D, there's some redundancy. D.l is that -- is any condition where there's been one or more violations. Yet in B, C, you start the thing off by saying wherever there is one or more violations. So I think we can kill the first sentence in Band C, do you agree? Because they're referencing what you say III one. MS. FABACHER: Are you talking about 3.B and C? COMMISSIONER SCHIFFER: One. I'm on Page 5. It's D under public comments, D.l, Band C all start out with the petitioner for a temporary permit. MS. FABACHER: Okay. COMMISSIONER SCHIFFER: So I think that's exact -- it's under the category one, which is exactly that. If you have one or more. MS. FABACHER: Right, okay. COMMISSIONER SCHIFFER: I'm just saying it's just -- MS. F ABACHER: Redundant. COMMISSIONER SCHIFFER: Redundant wording. And it may give you the illusion that the other ones don't apply. That's it. Thank you. CHAIRMAN STRAIN: Commissioner Adelstein. COMMISSIONER ADELSTEIN: Yeah, we're all talking in a different kind of sphere. I spent three years in one of these as a partial owner. And the trouble that you are talking about here doesn't really happen there. Why? Because they have four or five men in there making sure that nobody makes any unjust type situations. And the thing goes right through, they have their music, they have their dancing, but they don't get to get -- if they get too much liquor, they're out of there. They're not their way of doing it, they're taken out of there. Page 43 September 6, 2007 Most of the time, and in fact, the hours that I've spent there, I seen only once that somebody made enough noise to make a real problem. And then that lasted about a minute, minute and a half. This situation that you're talking about now is basically these people know how to run the business. If they have somebody coming in there and making noise on them right away, that guy's out of there, or that group is out of there. And the answer is that the way to run these things, if they're run properly, you won't see the situation. There's a good deal of money in it, a great deal of money in it because of the openness and the situation the way it is. And therefore the owners who are in it make sure that petty things like that don't happen. Here we're talking about what we think we could do with it. And I'm telling you that if you get them open and get them done properly, most of them, if they're any size or any quality, won't have any problems that we're talking about. CHAIRMAN STRAIN: Okay. Any other questions on Page 5, or comments? (No response.) CHAIRMAN STRAIN: I have one. It's referenced on D.l.B. Talks about the notifying distance of 1,500 feet of the subject site or the PUD boundary. Catherine, I mean, you've got some mighty big PUD's on this site. So you have to notify, like in Pelican Marsh 4,000 or 5,000 owners and then 15 feet outside the several mile circumference of there. You're talking thousands of property owners. I'm just wondering how that's practical when in all other cases you notify them and then on the next page, which we'll get to, if they're just within 1,500 feet. So how do you justify all owners within a large PUD and then 1,500 feet beyond that -- or no, that's just within that. MS. F ABACHER: I agree, that's a good change. Just strike 1,500 feet of the site. Page 44 September 6, 2007 CHAIRMAN STRAIN: That would be where I'm thinking you want to go. PUD boundary is a little too broad. That was the last comment, I believe, on five. Is there six, any questions? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Okay, number two. What it's saying is that we're going to have advertised at every renewal. So every year, how many people there are doing this are going to run an ad in the newspaper stating that they want to be renewed. That seems excessive to me. Letter E.l, what it's really saying is that any outdoor seating on private property, if the people -- if the function of that property is to serve food based on what we said in A, which is part of an eating or drinking establishment serving food and/or beverages, we don't even say there whether it's serving the food outside. Obviously the restaurant is serving food, whether it's inside or out. So that means everybody in town with an outdoor table is required. Two is outlawing breakfast, which I'm not sure that's the intent. It states that you can't serve outdoors between 10:00 p.m. at night and 11 :00 a.m. in the morning. Coffee shops and breakfast places wouldn't be happy with that. Three, the posting, somewhere we're going to have a requirement where we're going to have a sign stating that the patrons -- I guess what we'll do, I'm not sure what that sign will have. I guess it's saying it will come up with it. What is that sign going to say, you know, no fun after 11 :00 or -- I mean, that's going to be an awkward thing. And then just a question about F.1, Catherine, is that if this activity occurs in the front of a building, obviously the building would be considered separation from the residences behind it, right? MS. FABACHER: You mean the footprint of the building? COMMISSIONER SCHIFFER: Right. In other words, let's say Page 45 September 6, 2007 it's a strip mall. I'm in the middle of the mall and in the front of the building. I'm definitely protected. I don't need to worry about any kind of barriers other than the building itself, correct? MS. F ABACHER: Hmmm. COMMISSIONER SCHIFFER: And again, I think one of the biggest problems is -- MS. F ABACHER: I don't know that it would be the whole building. I would think it would be the outdoor serving -- COMMISSIONER SCHIFFER: No, I mean the building itself could act as the barrier, of course. MS. ISTENES: Yes. COMMISSIONER SCHIFFER: That's it. I think we should change the hours, because aren't we eliminating breakfast-related tourism? MS. ISTENES: If you're going to go with entertainment, though, this wouldn't apply. So, yeah -- COMMISSIONER SCHIFFER: I'm just reading what we've got. MS. ISTENES: No, I understand. I just wanted to bring that up, because you asked the question, if you guys were going to change that. The other thing under two under the notification, that's a one time ad that will be placed by the county, and the fees for the permits will cover that ad. So it's not going to be the responsibility of the -- MR. SCHIFFER: But it says renewals. CHAIRMAN STRAIN: Commissioner Caron, did you want to comment on that? COMMISSIONER CARON: Yeah, we had discussed that we were going to make this not an annual thing. So that will be -- COMMISSIONER SCHIFFER: That's official? I thought that was an idea. COMMISSIONER VIGLIOTTI: No, I agree, it was not annual. CHAIRMAN STRAIN: Before you go there, I think that what Page 46 September 6, 2007 we're trying to do is go through this document and take a look at critiquing the broad language of it. But in the end, I would be surprised if this survives the day. And I think the suggestions we're going to have are going to be a lot more succinct than all this verbiage we have here because there's several ways to go about it that don't require seven pages of verbiage. So maybe if we just keep commenting on more of the structure part of this and worry about the philosophy in the final comments as we finish up page by page, that would be more effective. If that works for everybody? Mr. Murray. COMMISSIONER MURRAY: I just have a question. Do we have PUDs where there's outdoor seating has already been established for these operations, where it's already permitted within the PUD? Would they have to get a permit as well? MS. ISTENES: Yes, and yes. Typically, outdoor seating is considered an accessory use. So if the restaurant use was allowed by the PUD zoning district and they wanted to come in later and add seating, it wouldn't have to be specifically enumerated in the PUD as a permitted use. It's considered an accessory to a restaurant. You may find some PUD's that list it as a permitted use or a permitted accessory use. I never say never, but I don't know any offhand. COMMISSIONER MURRAY: I don't know, I was trying to go, maybe the back door, trying to figure ifthere are impact fees associated with any of that, and that was all included, whether any of this gets mucky in there, but okay. CHAIRMAN STRAIN: Any other questions? This is the end of the document. I had one in just that E.2, Catherine. The fact that you're looking at 1,000 feet with a residential or estates zoning district, you know, it just doesn't make a lot of sense in regards to the estates. I'm not saying it does in the residential areas, but when you have less Page 47 September 6, 2007 congestion and less background noise like you have in the quiet areas of the Estates, the noise from these operations outside would travel a much longer distance. And with that, I think that's the structure issues in this. I would, if the board doesn't mind, I would just like to insert that there's probably a better way to approach this whole thing, and that is basically scrap this idea, look at rewriting the use as an outside entertainment as a requirement through conditional use process. Then what happens is you don't need to list the criteria for it. It all becomes part of the process you have to go through to submit for your conditional use. It gets the public hearings that you need, and it's very specific just to that application. Then the only thing staff would have to write is the definition of what is considered outside entertainment so we know what falls under that particular use. And Mr. Kolflat and then Mr. Schiffer. COMMISSIONER KOLFLA T: Now, the genesis, as I understand it, and the whole purpose of this is noise. That's what constituted our effort to write this ordinance. Noise that's objectionable to neighbors living in the area. Now, if noise is a factor, all these items don't necessarily always apply. If you have television out there, you can turn the dial down so the television creates a tolerable noise. If you have people there, you have some people that could be talking in whispers, you can have others that are shouting. Obviously there's a distinction in noise. There are various other things that can be considered there, too, but none of them attack the problem, which is noise. And since noise is the problem, why don't we focus on the noise ordinance that we already have and try to develop and expand its utilization so it can be implemented to make penalty to those people that violate the noise restriction. CHAIRMAN STRAIN: I think, Mr. Kolflat, it's a good point. But what's happened in the past and has been testified to or mentioned Page 48 September 6, 2007 during this hearing, when you have a noise and a crowd applauds because somebody did something, a successful catch in a football game, that applause is brief and for a matter of seconds. By the time the noise ordinance would want to respond to it or the police would have to come it's quieted back down again. And it's very hard to nail something down that way. And that's why -- that would be one way to look a it. But I think it needs to combine with another specialty use application. That's why I was suggesting making entertainment a non accessory -- automatically not an accessory use, make it a need to be permitted use. COMMISSIONER KOLFLAT: Well, the implementation could possibly be generated. Some time ago we never had random drug testing. But now we have random drug testing and we bring out things unexpectedly that people are violating the law. Why couldn't there be a random testing in some of these installations that are causing the problem? I mean, I'm not trying to generate how it should be written, but obviously the problem is noise, problem is noise, not whether they have entertainment. You could have entertainment in the form of a harpist that's not going to disturb anybody. So it's not anything to do with the entertainment or what the use function is, what it has to do with is that noise is the problem and how do we attack the noise, we have an ordinance for attacking noise. CHAIRMAN STRAIN: Any other comments on this? Mr. Schiffer, I'm sorry. COMMISSIONER SCHIFFER: And if we go one more page, there is an item three which totally prohibits outdoor entertainment within 2500 feet of a residential district. Maybe that's the only paragraph this thing should be is do the applicability and then just have this one paragraph which totally prohibits live outdoor entertainment within 2500 feet. If we pass this the way it is, you would never have outdoor entertainment, that's the last paragraph in this thing we didn't get to. Page 49 September 6, 2007 MS. F ABACHER: Commissioner, I think that means live, like a band. COMMISSIONER SCHIFFER: Electronic. We put it in, then kill the word live. Except my question kind of was what is live entertainment. It mean, it has to be produced by a living human? So a disc jockey -- MS. F ABACHER: Plus through a television. COMMISSIONER SCHIFFER: -- disk jockey live? MS. F ABACHER: Yeah. COMMISSIONER SCHIFFER: Television is not. Harpist is. Okay. Just a general comment. I really think it's the problem with the noise ordinance, not a problem with this. This is going to draw in so many innocent people that have never done anything wrong that are going to -- right now there may be a little anarchy with a table or two here and here. And this would just really create more problems than it's ever going to solve. CHAIRMAN STRAIN: Commissioner Caron? COMMISSIONER CARON: I think I would be inclined to second Commissioner Strain's suggestion to attempt to rewrite this as an entertainment restriction under conditional use. We all agree that the noise ordinance has to be changed. That's going to be a process that's going to take a long time. And we all agree, and I think we can pass that suggestion on to the Board of County Commissioners. They're apparently going to deal with it, at least to begin with, at their next meeting. Let them know that we're thinking in the same vein, not only with respect to A TV s, but also with respect to noise from restaurants and bars with outdoor entertainment. But that in the meantime, attempting to rewrite this as some sort of entertainment restriction under conditional use seems to make a lot of sense. CHAIRMAN STRAIN: Okay, are there any other comments before I call for the recommendation? Page 50 September 6, 2007 (No response.) MS. F ABACHER: I just had a question. What do we do about the businesses that already exist as an accessory use? MS. ISTENES: We could write a compliance date into the thing. In other words, we could try to attempt to eliminate what would then become legal nonconforming uses by having a date. CHAIRMAN STRAIN: Yeah, like we have on other cases of changing zoning. With that, is there a motion in response to Section -- LDC Section 5.04.07. Ms. Caron? COMMISSIONER CARON: I thought you had made that motion. CHAIRMAN STRAIN: We had discussion. It wasn't in the form of a motion. The motion's either going to be recommend approval or denial. COMMISSIONER SCHIFFER: I thought we were going to rewrite it. COMMISSIONER CARON: We're going for a rewrite here. CHAIRMAN STRAIN: Recommendation -- first of all, if we recommend denial we're not going to rewrite this. COMMISSIONER CARON: I'll make a recommendation then. CHAIRMAN STRAIN: Let me think this out with you all, and if you don't agree with me -- as far as what we think is a possibility that could be done, we've had a series of expressions to staff over alternatives. One is a stronger noise ordinance, the other is a conditional use focused on outdoor entertainment as the issue, not outdoor seating. I think that point has been made and could be relayed to the BCC as the alternatives discussed. Do we need -- if we need to get into a motion and define that, I'm wondering if that's even possible, or do we want this to come back for a rewrite, and let this one be continued to the 30th of September and hear it again? Page 51 September 6, 2007 Can staff do it by the 30th of September, give us something back? MS. ISTENES: Yes. CHAIRMAN STRAIN: Okay, well then I'd just as soon we do that. Is that okay with everybody else? MR. SCHMITT: Based on that, we're going to take the approach of outdoor entertainment. CHAIRMAN STRAIN: Okay. Let's see what you can come up with on the 30th of September -- or the 20th. MR. SCHMITT: I think that provides a very narrow focus, and it really does get after the problem we're trying to deal with. And it does not, as Mr. Murray and others mentioned, hit the mom and pop pizza store with two tables out front, that's not what we're trying to regulate here. CHAIRMAN STRAIN: Mr. Murray, did you want to comment? COMMISSIONER MURRAY: No, I'm going to pass. CHAIRMAN STRAIN: Mr. Schmitt, there was a gentleman from the public who was here. He was under the assumption it was going to finish today and go before the BCC. Could someone notify him? He's the attorney with Roetzel and Andress -- MS. F ABACHER: Doug Lewis. CHAIRMAN STRAIN: -- and let him know that we're going to hear this again under a different -- completely different premise on the 20th of the month. MS. FABACHER: Okay, we can do that. COMMISSIONER MURRAY: Doug Lewis, I believe. CHAIRMAN STRAIN: Doug Lewis, yes. And for the sake of those who may want to attend, does anybody have objection if we put it first on the agenda? COMMISSIONER ADELSTEIN: No. COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: Does that work for staff? MS. F ABACHER: Yes. Page 52 September 6, 2007 CHAIRMAN STRAIN: Okay. Well, let's just get it over with first on the agenda and we'll do that when we close the meeting today, but that's what we're looking at. Okay, next one today's agenda is the lot width measurement for the LDC changes. MS. F ABACHER: Commissioner, I think you'll see in this version that we have struck the language that had been added on setback. Direction to staff was to just bring back the method of measuring the lot width and get your preferences or your thoughts on how we might best deal with the other issue of setback in another cycle. (Mr. Midney is no longer present.) CHAIRMAN STRAIN: Anybody have any comments on the three pages for lot width measurement? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And I notice that we've corrected the figures are all in the right order. I think now Figure 10 could be misleading, so what I'd like to see, instead of using the word setback for now, we have two choices I think that would be good. One is eliminate the reference to Figure 10 and hide it until we discuss how to measure setbacks, or we add the word setback distance to the Figure 10 so that nobody thinks that is the setback, that's just the number that's equal to the setback. MS. F ABACHER: Yeah, we can do that. COMMISSIONER MURRA Y: That's cool. COMMISSIONER SCHIFFER: And then we can pass on the situation. You know, I have the sketch with me, if you want to see it. But remember, I still think the intent of that was to measure a line parallel to the cord at the setback. And I have that drawing, if anybody else wants to see it. That would end up with actually a smaller lot so it would never cause -- everybody was concerned that ity Page 53 September 6, 2007 would make noncompliant lots. It would actually make lots that people have a minimum a little bigger than they had to be by a little bit. So the way I'm describing is actually more conservative than less conservative. But anyway, Figure 10 could be dangerous unless we have the word distance where it says setback. And then I think that gives everybody what they think we have. And then we can argue setbacks. CHAIRMAN STRAIN: Staff have any problem with that? MR. SCHMITT: No. MS. F ABACHER: And Commissioner, let me say that we would like to be able to set up a workshop perhaps with some of the commission members and staff, public workshop just to kind of look at this in the next cycle or two. CHAIRMAN STRAIN: I don't see anything wrong with that. If you set the workshop up, though, and there's more than one commission member invited we -- MS. F ABACHER: It has to be noticed, exactly. Yes, sir, thank you. CHAIRMAN STRAIN: Any other comments on the lot measurement width? Mr. Kolflat. COMMISSIONER KOLFLAT: Not directly on the lot width measurement, but of course it included that definition for cord determination in the first issue that we got. And I had distributed to all of you a memo with two illustrations of cord. But what concerns me is that if you get a large enough arc on that cul-de-sac that you're taking and determining your cord method, you can end up so that you would have a zero setback result. As it becomes much wide it takes a lot bigger part of the arc on the cul-de-sac. I have a copy of that if you have any interest to put it on the highlighter. CHAIRMAN STRAIN: I think by referencing this is setback distance, does that address Mr. Kolflat's problem until we get to a workshop? Page 54 September 6, 2007 MS. FABACHER: Until we get -- right. CHAIRMAN STRAIN: I think what your issue has been resolved by Commissioner Schiffer's suggestion in that it needs to be more or less vetted out at that workshop that Catherine suggested we hold sometime in the future. COMMISSIONER KOLFLAT: Yeah, because this subject is also included in the front yard definition portion of the code, which calls for this type of a cord measurement. Which I think is wrong, because what happens is that you end up -- can end up with a circumstance where you have a zero setback. In fact, if you get a big enough arc, we take almost 50 percent of this, you have a negative setback. In other words, you could extend your property into what property you don't own, which of course you can't do. But this would allow you to do it. CHAIRMAN STRAIN: Mr. Schiffer, do you have some more to add on this? COMMISSIONER SCHIFFER: Yeah, just quick. In the definitions, Catherine, we also use the word, down at the second line up, setback line. Can we change that to setback distance, also. Then that way we punted the cord issue. CHAIRMAN STRAIN: Okay, anything else on lot measurement? (No response.) CHAIRMAN STRAIN: Hearing none, is there a recommendation for LDC Section 1.08.027 Mr. Murray. COMMISSIONER MURRA Y: Go ahead. I make the recommendation to transmit -- CHAIRMAN STRAIN: Recommendation for approval? COMMISSIONER MURRAY: Approval. CHAIRMAN STRAIN: Okay. Is there a second? COMMISSIONER ADELSTEIN: Second. CHAIRMAN STRAIN: Seconded by Commissioner Adelstein. Page 55 September 6, 2007 Any further discussion? All in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Next one is the deadline to file final plat. We have two items on final plat. MS. F ABACHER: Commissioner, you recall, there was kind of a disconnect with this. When Mr. Kuck came up and had changed it from the 90 days that everyone had seen to the 18 months, and subsequent to that, we had a meeting with staff of the different departments, engineering, zoning, building review, and we resolved the problem that they were having with these changes in the fact that we kind of internally decided that this -- a substantial change would be something that would move a right-of-way or a property line. And that would have to come back for a plat, site improvement -- what's it called, Joe? MR. SCHMITT: It's a replat. MS. F ABACHER: Replat, thank you. Lost my thought. So that takes away the problem of these changes that was attempted to be addressed by the zoning staff through the engineering rider, and so forth. And so we're now on the same page with the 18 months to record, after final approval, to record the plat. And if anything changes, they'll come back and replat. Meaning the significant change would be moving a lot line or moving a right-of-way line. Other than that, if the drainage moves or the easement moves, it's not significant, Page 56 September 6, 2007 not substantial. CHAIRMAN STRAIN: This involves four pages, two pages on 10.02.04.B and two pages on 10.02.05.B.ll. Are there any comments or questions from the planning commission? (No response.) CHAIRMAN STRAIN: Hearing none, is there a motion one way or another in regards to those sections of the LDC? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: What kind of move do you make, for recommendation? COMMISSIONER ADELSTEIN: For recommendation. CHAIRMAN STRAIN: Okay. Motion made by Commissioner Adelstein to recommend approval. Is there a second? COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: Seconded by Commissioner Murray. Any discussion? All those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Last item is -- MS. F ABACHER: Excuse me, Commissioner, that's for both of those then? CHAIRMAN STRAIN: Yes. MS. FABACHER: Okay, all right. Fine. Page 57 September 6, 2007 CHAIRMAN STRAIN: The last item is the flow chart for type three applications. It was the last time the planning commission was completely omitted. Certainly probably by a, what do they call those, a slip by some people's preference -- MS. FABACHER: Freudian slip. CHAIRMAN STRAIN: -- somebody caught it, either Brad or Donna, I forgot who. But we're back in there again. We actually have something to do now. So does anybody have any problems with type three table? COMMISSIONER MURRAY: I have a question. I just didn't understand where it says variances, conditional uses, nonconforming use amendments, flood variances? I'm just not aware of that title. MS. FABACHER: Well, there's such a thing as you can build below BFE, but it's not often used. COMMISSIONER MURRAY: That's why I guess I'm not aware of it. But what about any other variances? MS. FABACHER: Variance is the first thing on there. COMMISSIONER MURRAY: You're right. Excuse me. I was taken by the flood, I guess. Okay, thank you. CHAIRMAN STRAIN: Any other questions on type three table? Is this something that needs a motion, or is this just a back-up document? MS. F ABACHER: No, I think you need to go ahead and move to accept it. CHAIRMAN STRAIN: Is there a motion to accept the revised type three table of applications? COMMISSIONER MURRAY: So moved. COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Commissioner Murray made the motion, seconded by Commissioner Vigliotti. All those in favor, signify by saying aye. COMMISSIONER KOLFLA T: Aye. Page 58 September 6, 2007 COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. With that, we're looking for a motion to continue this meeting until the first up on the 30th -- the 20th of September at our regular meeting, prior to our regular meeting on the 20th of September. 8:30 in the morning. Is there such a motion for continuance? COMMISSIONER TUFF: So moved. CHAIRMAN STRAIN: Mr. Tuff made the motion, seconded? I'll second it. All those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Motion carries. This meeting is continued to September 20th. MS. F ABACHER: Thank you, Commissioner. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1:50 p.m. Page 59 September 6, 2007 COLLIER COUNTY PLANNING COMMISSION MARK P. STRAIN, Chairman These minutes approved by the Board on as presented or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM Page 60