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CCPC Minutes 09/20/2007 R September 20, 2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida September 20,2007 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 8:30 a.m. in REGULAR 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: Ray Bellows, Zoning & Land Dev. Review Joseph Schmitt, Community Dev. & Env. Services Marjorie Student-Stirling, Assistant County Attorney Don Scott, Transportation Planning Kay Deselem, Zoning & Land Dev. Review Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, SEPTEMBER 20, 2007, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDlNG, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: [NDlVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDlVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERJALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARJNG. ALL MATERIAL USED IN PRESENT A TIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - AUGUST 2, 2007, REGULAR MEETING; AUGUST 8, 2007, SPECIAL LDC MEETING 6. BCC REPORT- RECAPS - Not Available At This Time 7. CHAIRMAN'S REPORT 7 A. REOPEN CONTINUED LDC MEETING: RECONVENING OF THE PUBLIC HEARING FOR LDC AMENDMENT 2007 CYCLE 1 1. Review of Proposed Outdoor Seating/Entertainment LDC Amendment CLOSE CONTINUED LDC MEETING 8. ADVERTISED PUBLIC HEARJNGS A. Petition: CPSP-2007-7, Petition creating a new Public School Facilities Element with support document, and amending the Capital Improvement Element and Intergovernmental Coordination Element of the Growth Management Plan to establish a public school concurrency program. This is a companion item to the School Concurrency Inter-local Agreement between the Collier County District School Board and Collier Couuty Board of County Commissioners and the cities of Marco Islaud, Everglades aud Naples. (Coordinator: Michele Mosca, AICP, Principal Planner) 1 B. Petition: PUDZ-2005-AR-7883, Habitat for Humauity of Collier Couuty, Inc., represented by Dwight Nadeau, of RWA, Inc., is requesting a rezone to the Habitat-Woodcrest RPUD on 11.2 acres ofIand /Tom the Agricultural (A) Zoning District, to allow for a maximum 66 residential units. The subject property is located on the west side of Woodcrest Drive, soutb of Immokalee, just north of Acremaker Road, in Section 26, Township 48 South, Range 26 East, Collier County, Florida. (Coordinator: John-David Moss) CONT FROM 9/6/07 C. Petition: VA-2007-AR-I 1577, B F Ft. Myers, Inc., represented by Robert J. Mulhere, AICP, RWA, Inc. and working in conjunction with the Collier County Attorney's office, is requesting a variance for an out parcel (presently improved with a Wendy's Restaurant), resulting from the "taking" of a +/- 15.0 foot road easement for the expansion of Immokalee Road, to allow for parking within 11 feet of the property /Tont line along Immokalee Road Additionally, a variance of 9 feet is requested from the required 20 foot wide landscape buffer width per LDC section 4.06.02C.4, to allow for an II foot wide landscape buffer. The subject property, within the Green Tree PUD (Ordinance 81-58), is located at 10941 Airport Road Nortb, in Section 26, Township 48 South, Range 25 East, of Collier County, Florida. (Coordinator: Willie Brown) D. Petition: V A-2007-AR- I 1625, Terence W. Conroy, beneficiary of William Hogan, trustee for the South port Cove Nominee Trust, represented by Robert Lockhart, of Lockhart Engineering, Inc., and Richard D. Yovanovich, of GoodIette, Coleman, and Johnson, P.A., requesting a variance of 20 feet /Tom the required water/Tont setback of 30 feet as provided for in Section IO.5.4.G. of the Lely Barefoot Beacb PUD (Ordinance number 85-21). The subject .27" acre property has a single family dwelling unit that proposes to add a swimming pool, pool deck and screened enclosure that encroaches 20 feet into the required 30 setback and reduces the required setback to 10 feet. The subject property is located at 58 South port Cove, Lot 42, South port on the Bay Subdivision, Unit One, Section 6, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Nancy Gundlach) E. Petition: PUDA-2007-AR-II283, Wing South, Inc.. represented by Heidi Williams, AICP ofQ. Grady Minor and Associates, P.A., requesting an amendment of the Shadow Wood Planned Unit Development (PUD) Ordinance No. 82-49 to increase the number of single family dwelling units /Tom 11 units to a maximum of 16 units by increasing Single Family Residential (Tract B) from 3.7 acres to 5.68 acres and reducing the acreage of the Private Air Park district (Tract C) /Tom 37.8 acres to 35.82 acres. The subject property is located on the north side of Rattlesnake-Hammock Road, approximately one mile west of Collier Boulevard (CR 951), northeast of the intersection of Rattlesnake-Hammock Road and Skyway Drive, in Section 16, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Nancy Gundlach) F. Petition: PUDZ-2006-AR-9577, Page VI, LLC, represented by Tim Hancock, of Davidson Engineering, Inc., is requesting a PUD Rezone for the Della Rosa RPUD. The rezoning request is to rezone /Tom A (Agriculture) zoning district to the RPUD (Residential Planned Unit Development) zoning district. The proposed RPUD is located within the Urban Mixed Use District which allows for a base residential density of 4 units an acre and the Growth Management Plan (GMP) infill provision allows for a maximum of 3 additional units an acre. The RPUD meets those requirements and is requesting a density of up to 7 units an acre, for a total maximum of 107 residential dwelling units. The subject property, consisting of 15.38 acres, is located on the east side of Livingston Road, approximately 2 miles north of Immokalee Rd, in Section 13, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Melissa Zone) CONT TO 10/4/07 G. Petition: PUDZ-2006-AR-I0376, Radio Road Joint Venture, represented by Michael R. Fernandez of Planning Development Incorporated, is requesting a rezone /Tom Industrial (I) zoning district to the Commercial Planned Unit Development (CPUD) zoning district for the Lane Park CPUD to allow development of a maximum of 50,000 square feet of commercial uses. The subject property, consisting of 5.27 acres, is located at the northwest corner of Radio Road and Livingston Road, in Section 36, Township 49 South, Range 25 East, Collier County, Florida. (Coordinator: Kay DeseIem) 9. OLD BUSINESS 10. NEW BUSINESS 2 I I. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 9/20/07 cepe Agenda/RB/sp/rnk/mm 3 September 20, 2007 CHAIRMAN STRAIN: Thank you. Good morning, welcome to the September 20th meeting of the Collier County Planning Commission. If you'll all please rise for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL CHAIRMAN STRAIN: Thank you. And when I started speaking, I was talking rather fast, and I saw Cherie' look at me with this puzzled look like oh, no, he's going to do this all day. So maybe I'll remind everyone we are on -- the court reporter is taking the minutes to today's meeting, so we need to talk in a reasonable speed of tone today. As far as the first thing on the agenda is roll call by our secretary. COMMISSIONER CARON: Mr. Kolflat. COMMISSIONER KOLFLA T: Here. COMMISSIONER CARON: Mr. Schiffer. COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Midney. COMMISSIONER MIDNEY: Here. COMMISSIONER CARON: Ms. Caron is here. Mr. Strain. CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein. COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Mr. Murray. COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Present. Page 2 September 20, 2007 COMMISSIONER CARON: Mr. Tuff. COMMISSIONER TUFF: Here. CHAIRMAN STRAIN: Thank you. COMMISSIONER CARON: All present and accounted for. Item #3 ADDENDA TO THE AGENDA CHAIRMAN STRAIN: Okay, we have some issues with the agenda today. First one being the school concurrency item that was going to be the first item up on our advertised public hearings. It's my understanding that this item will be continued until the 18th of October, or be requested to be continued until the 18th of October. Is that a confirmation by staff? MR. SCHMITT: Yes, Mr. Chairman, we're requesting it be continued. We're going to conduct a -- I guess a public workshop prior to that meeting so that we can at least introduce to the public the concept of public school concurrency and the public schools facilities element of the GMP. CHAIRMAN STRAIN: I think that would be a good idea. And I'm assuming you're going to notify all the stakeholders -- MR. SCHMITT: Yes. CHAIRMAN STRAIN: -- and people involved. MR. SCHMITT: Yes. It will be run similar to, like, a neighborhood information meeting. And it's nothing more than to inform the public about the concept and receive any comments from the public, from the stakeholders prior to finalizing and bringing that, both the amendment and the interlocal agreement to you for your review prior to going to the Board of County Commissioners. CHAIRMAN STRAIN: Okay. Thank you. Is that -- does the board want to -- is there a motion to accept a continuance to October Page 3 September 20, 2007 18th? COMMISSIONER TUFF: So moved. CHAIRMAN STRAIN: First in the morning on this item? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by? COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Commissioner Caron. 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 MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed. (No response.) CHAIRMAN STRAIN: Motion carries, so we'll hear that on the 18th. MR. SCHMITT: Mr. Chairman, if! could, Michelle just wants to publicly announce the dates and times and everything, so can we have her do that? CHAIRMAN STRAIN: Sure, go right ahead. MS. MOSCA: Good morning, for the record, Michelle Mosca, comprehensive planning staff. Staff has scheduled the public workshop for October 10th at-- beginning at 5:05 in this -- in the BCC chambers right here in this room. CHAIRMAN STRAIN: That's great. Thank you. Page 4 September 20, 2007 MS. MOSCA: Thank you. CHAIRMAN STRAIN: Michelle, are you going to be posting the most current information on this on the website or somewhere where everybody can find it? MS. MOSCA: Yes, it is on the comprehensive planning page website. And if you look on the left -- everyone can go to the left-hand side, there's a link to school concurrency. And we'll continue to update that link. CHAIRMAN STRAIN: Thank you. In order of changes on the agenda, the second item that's been continued was the Page VI, LLC, the Della Rosa RPUD, that's on Livingston -- it's on the east side of Livingston Road, approximately two miles north of Immokalee Road. That was noted on our agenda as continued. COMMISSIONER MURRAY: Page Roman six. CHAIRMAN STRAIN: Page VI? Okay, want to say that? COMMISSIONER MURRAY: IV is four. CHAIRMAN STRAIN: Okay, you're right. An IV is something different, too, it goes in your arm. COMMISSIONER MURRAY: We could use one. CHAIRMAN STRAIN: Okay. There is another petition. Petition PUDZ-2006-AR-I0376 is the Radio Road Joint Venture, the Lane Park CPUD. Last night I noticed some e-mails from staff that this one was being requested to be continued. Is there a conversation on that? COMMISSIONER ADELSTEIN: Yes. MS. DESELEM: Good morning. For the record, Kay Deselem, Principal Planner with Zoning. Pardon me. Late yesterday I did receive a continuance request from the petitioner. He is here, if you have any questions about the continuance. CHAIRMAN STRAIN: As long as there's no objection to it, we Page 5 September 20, 2007 will -- now, as far as the timing for the continuance, the 18th we have school concurrency. We already have, I don't know, six, seven, eight hearings scheduled for the 18th. I notice there was some concern about staff scheduling this one on the 18th. Is there any input on that? MS. DESELEM: I know that from a staff standpoint we had closed that to further petitions, but that is your pleasure as to whether or not you wish to have additional petitions. I know that staff has been directed to not place an overabundance of petitions on any agenda so that you're not belabored into the midnight hours or whatever, staying for breakfast, as it were. CHAIRMAN STRAIN: Well, we have six other petitions and the school concurrency on the 18th. On November 1st we have six other petitions as well. But we don't have school concurrency. MS. DESELEM: My understanding, and the petitioner's agent can confirm this, I believe he's unavailable that date -- on that -- CHAIRMAN STRAIN: Okay, then the nearest one we have after that is the 15th of November, and we have two cases on that, so that's a pretty open day. Is there any reason that that couldn't be used for this particular application? MS. DESELEM: For my purposes, no. But the petitioner's agent may wish to address that as well. He's giving the thumbs-up sign. CHAIRMAN STRAIN: That would work very well for us, too. We appreciate that, thank you. Okay, so looks like we could continue this to the 15th of November. And then, typical to our continued items, it would be first up on the agenda on that date. Mr. Klatzkow, did you have any comments? MR. KLATZKOW: No. CHAIRMAN STRAIN: Okay. Anybody else? Page 6 September 20, 2007 (No response.) CHAIRMAN STRAIN: Is there a motion to continue this item to first on the agenda on November 15th? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Commissioner Adelstein made the motion. Seconded by -- COMMISSIONER CARON: Second. CHAIRMAN STRAIN: -- Commissioner Caron. 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 MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. MS. DESELEM: Thank you. CHAIRMAN STRAIN: Thank you. Okay, those are the three items I think that we'll be changing on the agenda. Item #4 PLANNING COMMISSION ABSENCES Next one is Planning Commission absences. Our next meeting will be the 4th of October. Does everybody plan to be here? Page 7 September 20, 2007 Anybody planning on not being here? (No response.) CHAIRMAN STRAIN: Looks like we've got a full house. Item #5 APPROVAL OF MINUTES - AUGUST 2, 2007 REGULAR MEETING; AUGUST 8. 2007 SPECIAL LDC MEETING Approval of minutes, August 2nd, 2007 Regular Meeting. Is there a motion to approve? COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: Mr. Murray made the motion to approve. COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Ms. Caron seconded. 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 MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. August 8th, Special Meeting, LDC Meeting Minutes. Is there a motion to approve? COMMISSIONER CARON: Approval. Page 8 September 20, 2007 CHAIRMAN STRAIN: Ms. Caron made the motion, Commissioner Adelstein seconded. All those in favor, signify by saymg aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Ray, there's no BCC report at this time? Item #6 BCC REPORT - RECAPS MR. BELLOWS: Yes, there is. On September 11 th the Board of County Commissioners heard the petition for a parking exemption for the DeVoe Auto Facility. That was approved by a four to one vote, Commissioner Halas voting in opposition. And there were two PUD extensions approved on the summary agenda, one for the Golden Gate Commerce Park and one for the Collier Boulevard Mixed Use Commerce Center. CHAIRMAN STRAIN: Thank you. The agenda said there was none available at this time, that's why I assumed there wasn't any. Item #7 Page 9 September 20, 2007 CHAIRMAN'S REPORT So under the Chairman's Report, I just have one comment -- and we've been getting our packages early, fairly complete, on time and fully cooperative. And a lot of that goes to the credit of Sharon Phillips over at the county. I just wanted to make recognition of her for her efforts because she's done an outstanding job of keeping us posted, keeping these things to us on time, and informing us in the loop. So I really appreciate Sharon's efforts and wanted the staff and everybody to realize that. COMMISSIONER CARON: Second that. CHAIRMAN STRAIN: Second that, okay. Item #7 A RECONVENING OF THE PUBLIC HEARING FOR LDC AMENDMENT 2007 CYCLE 1 - REVIEW OF THE PROPOSED OUTDOOR SEATING/ENTERTAINMENT LDC AMENDMENT 7(A) is the continuation -- we had started the LDC hearings months ago, cycle one. The only thing remaining on cycle one is a 5.04.07 issue in the LDC, permit for outdoor serving areas with entertainment. That issue was continued to today's meeting. We'll reconvene that LDC cycle hearing right now, and we will start with the staffs discussion of the latest documentation that was passed out to us. Anybody wishing to speak on this matter, please provide Ray Bellows with a slip. I know he's got one already, and any others. You've got one, fine. Okay, Catherine, it's all yours. Page 10 September 20, 2007 MS. F ABACHER: Good morning, Commissioners. As you explained, we are meeting on the outdoor serving area with entertainment on private property amendment. I'd like to go over briefly the changes that we made based upon your remarks from the last meeting. We've kind of shifted towards being outdoor seating areas with entertainment, which we define, you see at the top, as amplified sound, which could be a loudspeaker, television, amplifier. This wouldn't include live music, because if you needed to have live music, you'd have to get a permit from -- an ambient -- excuse me, amplified sound permit from code. Code gives an amplified sound permit, generally, for things like that. You have a live band outdoors, you'd have to get that. So -- but what we've done is we've hung it all -- this eliminates all of the people who just have seating and eating outside but they have no sound, no music, as I think you requested to drop a lot of people out of the loop of applicability. We kind of defined what amplified sound is: Radios, television, video games and other amplified music. And as Commissioner Caron, I believe, had suggested at the last meeting, we made it a one-time permit. Just one time. Also -- I'm on Page 3 -- you had requested that we extend it perhaps -- we had it in March, I think March, 2008. And I think you had asked for some -- we should give a little more time to allow people to get into the mix here, to get everybody in on permits. Let's see. That's about it. We were on Page 5. We made the operating regulations just a little clearer by using this chart. And that is with anybody within 1,000 feet of any residential zoning or land that's used for residential purposes, except of course for mixed use, would not be able to play this amplified sound between 11 :00 p.m. Sunday through Thursday night til11 :00 a.m. the next day. And then for Friday and Saturday Page 11 September 20, 2007 night, they'd have to stop at 12:00 a.m. and not continue again before 11 :00 a.m. the following day. Then on Page 6, we're talking about some of the requirements. I'm on F.l, and we talked about people within 1,500 feet of the property line of land with residential zoning, we had originally said had to put up a solid, translucent or opaque barrier six feet in height. But then staff talked about the fact that perhaps a building might intervene between the residential and it might barrier -- the outdoor area might be on the front of the building, so we added the term in F.l right there, the third sentence up, or other intervening structures, which we take to mean, you know, another building is in the way or, you know, that barriers it just as well as a sound mitigation device. And we always had in here that if you wanted to do live outdoor entertainment, you couldn't do it within 2500 feet of a property line. Now, as I mentioned earlier, we would not be issuing that permit, code would. And remember, the whole scheme kind of evolves around code, because when you go for an application, you're supposed to go to code and you'll get a history of compliance -- CHAIRMAN STRAIN: By code, you mean Code Enforcement? MS. FABACHER: I'm sorry, yes, Code Enforcement. You go to Code Enforcement -- you have to go to Code Enforcement to apply for your permit for history of your -- your violation history, if you have any. If you have a clean slate and you haven't had any -- CHAIRMAN STRAIN: You might want to slow down a little bit. MS. FABACHER: I'm sorry. If you have a clean slate and you haven't had a notice of violation of the noise ordinance in the past 12 months, then you can take the administrative route. Otherwise, you're going to have to go to -- if you've had a violation of the -- just the noise ordinance, not weeds or any other nuisance problem, just noise, then you'd have to go through the conditional use process to get it. Page 12 September 20, 2007 There's also another feature. Code Enforcement hears a lot of these nuisance ordinances, nuisance complaints or violations, actually, through their special magistrate. And what could happen is that the special magistrate could suspend a permit. Actually, it says the county manager, but this is the mechanism we think would work. The special magistrate could suspend the permit and then the person whose permit got suspended could go to the BCC in 30 days to appeal that. CHAIRMAN STRAIN: You refer to another ordinance that code already issues permits for -- MS. FABACHER: Right. CHAIRMAN STRAIN: -- Code Enforcement. You're talking about the amplified sound ordinance that we have? MS. F ABACHER: Amplified sound permit under the noise ordinance, yes. CHAIRMAN STRAIN: Does that one have a conditional use process, or does that just go to Code Enforcement and they issue the permit and they walk away? MS. F ABACHER: Yes, the latter. CHAIRMAN STRAIN: Really? I didn't know the-- MS. FABACHER: We didn't exactly amend theirs, but in amending ours, we put that you can't have that within 2500 feet of a residentially zoned area. And this is -- excuse me, before Joe speaks, this would exclude of course any projects that got permitted as a mixed use project. That would have to definitely be taken into consideration when those uses were put together, and whether that would be an allowable use at all under mixed use, which is kind of like a PUD, because you can say what you can -- uses you can and can't have. MR. SCHMITT: Mr. Chairman, those are administrative in nature. However, if there's an establishment that has had a history of complaints, those are taken to the board for approval. Page 13 September 20, 2007 There is one on the agenda for Tuesday, an establishment that has asked for an outdoor amplified -- or outdoor entertainment. And the authority is vested to the county manager to issue those. However, like I said, ifthere are times when it's maybe controversial, those are raised to the board and they're presented before the board -- CHAIRMAN STRAIN: You have one on -- what outfit? MR. SCHMITT: Stevie Tomato's -- CHAIRMAN STRAIN: Is that the one that originated this whole furor over what we're reviewing today? And if it is, how come they're circumventing it by going to you guys on Tuesday? MR. SCHMITT: No, that's for an outdoor -- outdoor entertainment or outdoor -- amplified sound permit for basically an outdoor band, is basically what they're asking for. CHAIRMAN STRAIN: Well, how is that regulated in regards to -- I mean, the ordinance we're talking about now is for something less intense than an outside band, it would be -- amplified music. And if they get a violation for infractions, they have to have a conditional use. And now you're telling us that for a more intense use, which is an outside band next to residential homes, which I know Pebblebrook is what, a simple masonry wall separates the two, now you're telling us there they just come before the board, get a permit and walk away, and they circumvent the process for conditional use and everything else that we're talking about today? MS. FABACHER: No, actually, they've been involved in litigation with the special magistrate -- not litigation, but they've been in the special magistrate and they've had several violations against them. So this is really an ongoing thing with Stevie Tomato's. There's been a lot of violations under the noise ordinance that Code Enforcement was able to, you know -- CHAIRMAN STRAIN: But Catherine, you didn't answer my Page 14 September 20, 2007 question. Under the process they're going through on Tuesday -- you have a process in front of us today that comes into -- that brings a conditional use request into play, which is a public hearing, and everybody gets to come in and discuss it. But the process you're going forward on Tuesday circumvents the possibility of getting a conditional use. They just go before the board, get approval and there's no conditional use process; is that correct? MS. F ABACHER: As I understand it. CHAIRMAN STRAIN: Okay. MR. SCHMITT: It's a one-time event. MS. ISTENES: Right. MR. SCHMITT: It's a permit for a one-time event, that's what that's for. CHAIRMAN STRAIN: So they have music one time and then they don't have it again, like one night and that's it? MR. SCHMITT: But there's more to the story. The issue is also there's been a mandate, a requirement to put up a sound wall. The permit's been issued for putting up the sound wall, and we're in negotiations, I'll call it right now, to have the sound wall put up. But rather than debate that issue, I don't want to go any further into that case. CHAIRMAN STRAIN: So the amplified sound permit they're getting, even though it can be an annual permit, you're saying it's going to be used one time and tossed. Is that the intent of Tuesday's meeting? MR. SCHMITT: I'm confirming that. I'm going through my agenda notes. CHAIRMAN STRAIN: Catherine, did you -- Ms. Caron, did you have something more you wanted to add? COMMISSIONER CARON: Well, I just was confirming that if this amendment goes into the Land Development Code, would they be required to come through a conditional use process? Page 15 September 20, 2007 MS. FABACHER: For the outdoor seating area with ambient sound, yes. And if they'd had a violation, yes -- a violation history. COMMISSIONER CARON: Even if it were a band and they only wanted it one time, wouldn't they still have to come through and get this permit? And if they had violations, wouldn't they have to go through the conditional use process? MS. ISTENES: Susan Istenes, Zoning Director. I don't read it that way. I think we're talking about two different processes here. And I'll tell you, I'm not overly familiar with the permit that Code Enforcement issues. But I think the difference here is you're talking somebody who has continuous, as a regular part of their business, outdoor amplified sound versus what I might classify as kind of a special event, an occasional occurrence of live music. CHAIRMAN STRAIN: But the executive summary that's going before the board Tuesday doesn't read as a special event. It reads, and I can read it to you: The Board of County Commissioners consider approval of an amplified music permit for the commercial establishment known as Stevie Tomato's Sports Page Restaurant and Sports Grill. It's not asking for a one-time event, it's looking at an annual event. And if you read the consideration clause, it talks about an annual permit-- MR. SCHMITT: That's correct. CHAIRMAN STRAIN: -- so I think what now we're faced with is the whole purpose of what we probably got into this whole thing in the first place is being circumvented by the meeting possibly on Tuesday. MR. SCHMITT: This process here, in my interpretation, would supercede what they can do now. This would be a requirement as part of -- the amplified sound would fall under this portion of the September 20, 2007 ordinance. CHAIRMAN STRAIN: But that's not what she just said, because she just said that this doesn't apply to the amplified sound -- because of the permit process that's another thing -- MR. SCHMITT: The current process we have now, this -- if you read the definition, it falls -- use of public address, P A, loudspeaker, amplifier, or any other device which electronically augments the volume of sound. So this process basically would supercede that. Now, if they want to have an outdoor band, that's something we have to sort through as to whether that's an additional permit. Right now it's an administrative process. CHAIRMAN STRAIN: It looks like the process that they've been allowed to apply for administratively would give them an annual permit for a band outside. MR. SCHMITT: However, that's the process that exists right now. That's the current process in the Land Development Code. And those permits are issued by Code Enforcement. CHAIRMAN STRAIN: Now, the code that provides the process that's going before Tuesday is Section 5492 of our code of laws, not of the LDC. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: Is there a similar reference in the LDC that supports that section of the code of laws that they're applying under, or is that what we're producing today? MS. ISTENES: Not to my knowledge. And if we need to make a cross reference in the LDC -- MS. FABACHER: Well, it's just that it's two different processes. One is evolving. One's existing. It's done in two different departments under two different books by two -- you know, we can meld it together better. And I would think that there would be some difference after this is passed as far as a business with a lot of violations having to go Page 17 September 20, 2007 through something more strenuous than what you're saying. CHAIRMAN STRAIN: But from the staff members that are here today, I'd just like one confirmation. If this -- on Tuesday if this were to pass, not this application that we're talking about today, but if the Stevie Tomato's application for an annual amplified sound music permit on Tuesday were to pass the Board of County Commissioners, would that mean that should we subsequently pass this change to the LDC, and it would be for Section 5.04.07, would that mean they would circumvent falling under that process for the future because they've grandfathered in what they're getting possibly on Tuesday? MS. ISTENES: That's a really good question. I think maybe -- I think our intent would be that this would circumvent that. And if it's not clear in the code -- and I'm kind of looking at maybe we need to make sure that that's clear in our proposal-- but that would be the intent, Commissioner, yes. CHAIRMAN STRAIN: Jeff, did you want-- MR. KLATZKOW: Yeah. I'd just like a few clarifications. One, this is not the Stevie Tomato ordinance that we're looking at today. The Pebblebrook issue was one of the issues that brought this to the forefront. There are a number of establishments throughout the county that have this issue. Two, the board may not pass this ordinance, okay. You will forward your recommendation with a proposal to the board, and the board will do what the board will do. In the meantime, all present ordinances remain in full force and effect. And we're not going to stop the process pending a maybe sometime in the future we're going to pass this ordinance. Now, should this ordinance pass, how that will affect the permits that have been issued, this point in time, I don't want to put on the record what our position is going to be. We'll have to see it on a case by case basis, see whether or not there have been fines or violations and deal with it at that time. Page 18 September 20, 2007 But there are two distinct issues. We have this change to the LDC now. And the reason it's going to the LDC and not the noise ordinance is because we want some sort of conditional use process which brings the public into this process here and allows the board to put conditions on it rather than just simply changing the noise ordinance, which in a lot of ways is easier in that you can amend the noise ordinance very quickly. The LDC is a very difficult vehicle to amend. But in the meantime, we have what we have. And so we'll go forward with this and do the best we can. And what we have, we have, we have to live with. And you can't bring the two together. CHAIRMAN STRAIN: Fair enough, Mr. Klatzkow. Thank you. I wanted that clarification. It was just interesting to know how the process is being handled right now. But we appreciate it, thank you. Okay, with that, Catherine, I guess you finished with the discussion you wanted to provide us with? MS. FABACHER: Yes, I have. If you have any questions? CHAIRMAN STRAIN: We certainly may. And let's start with our typical walk-through on page by page as we have done in the past. And right now the first page is the page number one in our packet. And that's just basically the staff outline of it. Mr. Murray? COMMISSIONER MURRAY: Okay, I just want to have clarifications on items. On the very first thing where it talks about change and it uses the word entertainment. So that a permit must be obtained for, say, a guitarist without amplified sound, that's a standard procedure, is it? Or a clarinet player or somebody who might be outside at the building? Because let's use the example I gave the last time, which was Outback. They have amplified sound, they have quiet music playing. Let's say that they hired a guy with a guitar to walk around; is that going to be a problem with that? Is that considered entertainment as a Page 19 September 20, 2007 separate thing or what? MS. F ABACHER: It's not in the definition as written. COMMISSIONER MURRAY: Okay. And you speak on the fiscal and operational impacts of code violation history and the nominal fee associated with it to be determined. Can you give us a little bit more help on where that's going to go, what kind of number we're thinking about? MS. F ABACHER: I don't want to speak for Code Enforcement, but we've discussed it and it's maybe $100. It's just to pay for the personnel to run the separate database than we all have. We have CD Plus, but they have a special database that also carries some sheriffs stuff, so -- complaints and -- I was advised that that would be a relatively simple thing to do. COMMISSIONER MURRAY: So in other words, if they were to go to the magistrate, some of the court costs, as it were, the costs associated with going through that to resolve an issue would be that $100; is that what you're saying? MS. F ABACHER: No, no, ifthey were going to get a permit administratively, then they -- COMMISSIONER MURRAY: So there's really two permits here? MS. F ABACHER: There's one permit, but there are two ways, if you go and get your violation history and you're clear and you get your zoning letter, which you already have, you bring those, you fill out the application. And ifthere's no history of a violation of the noise ordinance in the last 12 months, then you get -- administratively you can be issued your permit. If you've had a noise violation within the past 12 months, then you're going to have to go the longer route through the public hearings to give the public a chance to participate and work on that. COMMISSIONER MURRAY: Okay, thank you. That was for me. Page 20 September 20, 2007 CHAIRMAN STRAIN: Still on Page 1. And only thing I have, Catherine, is a follow-up. Mr. Murray asked you about a guitar player or soloist or clarinet. And I understand they're pretty passive in regards to noise, but you said that wouldn't be covered. But under the applicability provision, it says it's applicable for any -- basically providing entertainment. I'm just wondering then, what is a guitarist, clarinet or whatever, if they're not entertainment? And if the intent was not to bring them into this, how do we exclude them, if that's -- MS. FABACHER: If you look down, Commissioner, to 1.B, they are excluded. It says, for purposes of this section, entertainment shall be considered to include any source of amplified sound, which we've defined already, including but not limited to radios, televisions, video games and amplified music. And if you look at the definition earlier up, and any other device which electronically augments the volume of sound. So unless it's an electric guitar or an electric clarinet, that would be okay. CHAIRMAN STRAIN: Okay. If they had a speaker or something that's when -- MS. F ABACHER: Then it's a problem. CHAIRMAN STRAIN: Okay. Page 2, any questions on Page 2? Mr. Schiffer. COMMISSIONER SCHIFFER: And Catherine, it's -- or maybe Jeff in this case. In the definition, the definition appears to be augmenting a source of sound, probably, for example, a public address loudspeaker are intended that there would be a person there making that sound. You think we should clarify that? I know you do in B somewhat. But the definition of amplified sound, which is important for B, really states that it has to be augmenting some other source. And what we really wanted it to be is an electronic device. Page 21 September 20, 2007 So is the word augmented a good idea or should it maybe be the word controls the volume of sound? You see what I'm saying, Jeff? MR. KLATZKOW: We can say controls or augments. COMMISSIONER SCHIFFER: Okay. Looks like the definition is coming off of something where there's a source of sound like a band or a performer or speaker. MS. F ABACHER: Commissioner, this is the verbatim definition out of the noise ordinance. But I'm happy to change it. COMMISSIONER SCHIFFER: But it does seem to -- the confusing thing is that source could be interpreted to be a live person. Jeff, the slash stroke that we use where we say owner/managers, is that common understanding legally to mean and/or? MR. KLATZKOW: Yes. COMMISSIONER SCHIFFER: Okay. And I'm sorry, Catherine, this is in A. In there -- if we read that, should we add the word outdoor where it says providing entertainment? MS. FABACHER: I'm sorry, you're-- COMMISSIONER SCHIFFER: Where we do say -- say owner/managers of outdoor serving areas on private properties -- MS. FABACHER: You're right. Thank you. We missed it. COMMISSIONER SCHIFFER: Add the word outdoor there. Number one, what you're describing is that if you're serving food or beverages for that area, or both, in conjunction with entertainment. So essentially, if we have a smoking area where you're not serving food, the guys are walking out, that would not apply to them? MS. FABACHER: Exactly. COMMISSIONER SCHIFFER: So they could be boisterous and giggle or -- MR. KLATZKOW: Do you want it to apply to them? COMMISSIONER SCHIFFER: Well, I mean, the intent of this is to prevent annoying the neighbors. MS. F ABACHER: But at the same time, I think we -- last time Page 22 September 20, 2007 we met we discussed the fact that we didn't want to put this burden on every mom and pop and every place that had a little smoking bench or places to sit outdoors. And suppose somebody carried their -- COMMISSIONER SCHIFFER: Yeah. I mean, I don't think that would drag them in. And I agree with you, we don't want that. Anyway, if you think that's okay -- in other words, what we're saying, only in these areas in which you're serving food. If I go out there to smoke a cigarette, watch television and a football game and you're not serving food, this doesn't apply. MS. F ABACHER: Well, then I guess you'd have to get an amplified sound permit under the code of laws and ordinances. This would not -- COMMISSIONER SCHIFFER: We have an amplified sound permit? MS. F ABACHER: Yes, we do. COMMISSIONER SCHIFFER: Then why are we here at this point -- CHAIRMAN STRAIN: Here's a copy of it in case you want to read it. I just have to pull it down. I didn't know we had one either. COMMISSIONER SCHIFFER: But wouldn't that have solved the problem, just kicking that up? MS. F ABACHER: Well, it's taking a long time to solve those types of problems is what the problem is. This one would give us a quicker response and more manageability, more leverage to handle that sort of situation. Because there is a case going through now that's really been stopped under the noise ordinance and they've gone to the special magistrate and now they're being forwarded on to the board for a final decision. But they've been regulated under that ordinance, it just took a while. COMMISSIONER SCHIFFER: I'm reading this, and it looks Page 23 September 20, 2007 like they should have used this to control the problems Donna pointed out. Okay. Throughout this code we use something where we say one or more notices of violation. Can't we say a notice of violation? Because it -- the concern I have is that there's the illusion of your -- there's some cases where you're allowed more than one. But essentially, if you have a notice, when you discussed it earlier, you said a notice of violation. So rather than say one or more, it creates the illusion that there's a two and three series. CHAIRMAN STRAIN: Jeff, do you want to -- I think this is an issue that you and I had addressed as well and you might want to address. MR. KLATZKOW: Yeah, the constitutional law may be a very small portion, but I'm still kicking my foot on this one. It's got to be a finding. We can't have Code Enforcement simply issuing somebody a notice of violation or a citation and having people shut down. Whether the finding is by the Code Enforcement Board or the Special Magistrate or actually goes through a judge doesn't really matter. We need a finding that they violated the noise ordinance in order, I think, to be constitutionally -- keep the constitutional requirements. COMMISSIONER SCHIFFER: But my question is just the wording on one or more. That doesn't solve what you're saying. It says unless a notice of violation. So this is just the issuing of a violation, whether it's one or two or three it still has the problem you have. MR. KLATZKOW: It should be one or more findings of violation of the Collier County noise ordinance. COMMISSIONER SCHIFFER: Then why don't we say a finding of violation. Because -- do you need to give more to -- there's nothing throughout this whole thing that gives you any advantage to having more. So once you have a notice of violation, you're triggered Page 24 September 20, 2007 to go before the BZA. MR. KLATZKOW: I-- CHAIRMAN STRAIN: I don't see what it hurts. MS. FABACHER: We can change that. COMMISSIONER SCHIFFER: And let me just -- okay, that's it on that page, thank you. CHAIRMAN STRAIN: Okay, we're still on Page 2. Anybody else? I have one. Catherine, under I.A, third line, residential and nonresidential uses within the same tract of land. And my concern is what is a tract of land. Because that could be a lot of different OpInIOns. And I'm just wondering if we could use a defined term there. MS. FABACHER: Okay. Well, we're just trying to say mixed use. CHAIRMAN STRAIN: I know, but a tract ofland could be an entire PUD, an SDP within an entire PUD -- MS. F ABACHER: Within the same development -- CHAIRMAN STRAIN: -- or it could be a subdivided lot or it could be a section of the PUD -- MS. FABACHER: Would you like to say the same development? CHAIRMAN STRAIN: I'm just asking, is there something that staff would be able to hang their hat on? MS. ISTENES: I think I understand the point. Ifwe clarify that in our next version. I understand what you're saying, yeah. And we can -- we'll -- CHAIRMAN STRAIN: It's come up before and that's why I'm sensitive to it, so -- any other questions on Page 2 -- oh, item number two, Catherine, in this one if -- now we're changing it to a finding, but if they've received a finding for a violation, and obviously if it's negative, then they have to -- then they can't be issued the permit, Page 25 September 20, 2007 basically, administratively. But what if they get issued the permit administratively and six months later they get a noise violation and it goes into a finding? MS. FABACHER: Well, then it goes through code and then it goes to the special magistrate. And when it says incurred, the county manager or designee can revoke, based on that -- or suspend, then that's the second kind of tract. And the special magistrate can suspend it and they have go to the BZA to get it back. CHAIRMAN STRAIN: Okay. Next page is Page 3. Anybody have any questions on Page 3? COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRA Y: Under 6.A where it speaks to transfers, I'm sure you were intending to accomplish something there, but I'm not clear on what it is, because it looks like it penalizes the person that might be obtaining the facility on a purchase or however. Why do we want to do that? MS. FABACHER: I think because if they're coming into that situation, they should definitely find out that there's a problem. And if a new owner takes over the establishment and they want to continue this type of use, then I think it gives the residents in the area an opportunity to discuss the issue, new owner coming in, instead of just giving it to them and letting them think that they can go off the status quo. COMMISSIONER MURRAY: I guess. But my view would be if they're a new owner and this is not used as a method to get around something, I mean a new owner, they would come in with a new concept, a new approach. I don't have any problem with them being held to account for the rules of laws we have. But it seems odd that we would penalize somebody who just obtained property and say, hey, you've got to spend more money than somebody else who's starting out. They both Page 26 September 20, 2007 have the same potential to create a problem. MS. F ABACHER: Well, Commissioner, I think it serves two purposes in that it's lets the new manager know -- if they didn't know, that it's been a problem area. And then if the board sitting as the BZA could negotiate certain conditions to giving the -- you know, that gives us just a measure of trying to work things out before the trouble starts again. COMMISSIONER MURRAY: Well, I understand your intent, but it means also that they then have to spend $4,000 to get to the BZA, spend $1,200 in advertising and hiring a lawyer. It seems a little excessive to let somebody know that they should be on notice not to do something, if they're new. MS. ISTENES: What do you suggest, Commissioner? COMMISSIONER MURRAY: I suggest the absence of that. And perhaps a notification, a transfer shall be administratively approved. And if there were notices of violation, the new person shall be informed as to the requirements and they would be asked to sign something, perhaps. MS. ISTENES: So if the business remains the same and the ownership is simply a paper transfer, that would be okay as well? COMMISSIONER MURRAY: I understand what you were intending. In other words, somebody getting around an issue. I made that comment in my statement. But on the other hand do we penalize everybody who is new because we do have people who are not appropriate in their behaviors? I don't know. It strikes me that we can make it the land of no if we want, but I'm not inclined. So I think that should be modified. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I think the intent obviously here is to prevent these paper changes. And I think that's a real issue, because we've seen this kind of thing happen. So to prevent it from affecting an actual sale where someone new Page 27 September 20, 2007 is coming in, I think just allowing these people to be noticed ahead of time would solve that issue. Because if you're looking to buy a property and you realize it has all kinds of encumbrances on it, including this encumbrance, then you're going to think twice about buying that property and go about your business and find someplace else to purchase. So perhaps we can just notice new ownership that there's an issue, like any other real estate. You know, you have to go back and you have to look at all of these. CHAIRMAN STRAIN: Mr. Schmitt, then Mr. Klatzkow. MR. SCHMITT: From a standpoint, we've had people who bought property without even knowing that there has been a past history of code cases, and I can cite several which are probably not public. But that becomes problematic. Gee, we never knew there was an open code case. And what is that, due diligence on the purchase -- COMMISSIONER CARON: Yeah, it is. MR. SCHMITT: On the purchaser. Mr. Murray has a point here, we don't want to penalize. But still, I think we want some mechanism to at least start the clock over again, so to speak. COMMISSIONER MURRAY: That's fine. MR. SCHMITT: If that's administrative, at least some kind of announcement, or just a transfer or something, we'll look at it, and it doesn't have to go through the entire conditional use process. If it's a restaurant that has had no history, it may be something that gets administratively moved to the new owner. COMMISSIONER MURRAY: I agree. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: I would encourage you to do that. CHAIRMAN STRAIN: Mr. Klatzkow, did you have something you wanted to add to that? MR. KLA TZKOW: Yes, just understanding that these findings Page 28 September 20, 2007 are all recorded. These aren't just open code cases, they're all findings. So where there's Code Enforcement -- these are all recorded now in the county records. So they are on notice. If the concern is a paper transfer, you can get around that by giving some sort of mechanism where if the new owner can demonstrate that this is truly an arm length's transaction, then he does not have to go through the zoning process. Having said that, you need to consider, if I've got already a history of these findings of fact on an establishment, does the new owner sort of get a clean slate or not, is a policy question for you. CHAIRMAN STRAIN: I'm not sure that if the location is problematic with the neighbors if a new operator is coming in, the new operator ought to certainly know how sensitive that situation is, and by this process that you've outlined here they would more or less realize that. Whereas if they were given a clean slate each time they might not realize what kind of a neighborhood they're moving into and thus not be as sensitive to protecting it. So, I mean, I don't see why we would want to provide that kind of latitude to a new operator in an existing problematic location. I think everybody ought to be well aware of what they're doing, myself. COMMISSIONER MURRAY: But it doesn't pertain only to problematic locations. This is across the board. And I'm concerned with moms and pops getting an excessive cost, that just doesn't seem right. I mean, it's tough enough to get -- start a business in this county. CHAIRMAN STRAIN: Consensus on the board? Ms. Fabacher. MS. F ABACHER: Commissioner, I just want to say that if you have no history of findings of violation, then it's administratively just transferred to you. But if you're coming and it's a problem area and it's a bad spot and there's a history of disturbance in the neighborhood, then you'll have to go through it. Page 29 September 20, 2007 And if you're buying a new business -- I guess you don't think it's the cost of doing business -- and it's really our best chance to straighten -- try and correct the problem of an unfortunate situation at that point. CHAIRMAN STRAIN : You know, the case in point, I don't mean to be the only cases, the County Attorney corrected me earlier, is Stevie Tomato's. They have located their business next to the residential portion of Pebblebrook. That didn't need to happen. If we as a board, maybe staff, maybe even the developer had foreseen something like that happening and limited their operation to up against the preserve area of Pebblebrook, which is hundreds of feet from the nearest home. Now, in those kinds of cases that's a historical problem. And it will be for any business going in there. And if there's a history of violations, it might be well known and well aware of any future tenant to consider that. And maybe that business would relocate in a more appropriate location within that PUD or another location that isn't so sensitive and backed up to residential neighborhoods. That particular part of this project is a real problem, and I think there's a huge -- it's an issue that's not going to go away. That's why I don't see anything wrong with the way it's worded for causes like that. I understand Mr. Murray's concern, it could work against other people, but how do we protect the ones that are left? COMMISSIONER TUFF: I'm with Mr. Murray, just for the fact that there's all these new laws, and how are you supposed to know -- do due diligence, yes, but you are penalized as the new guy coming in I think it's a little extreme -- I think the whole thing is unnecessary. We're solving the wrong problem -- we're solving the problem in the wrong way. CHAIRMAN STRAIN: Let's take a poll of the commission. As far as changing 6.A, Mr. Murray's concerns have been heard, we've heard other sides. If we leave it like it is or we change it, how many Page 30 September 20, 2007 people would like to see it changed as Mr. Murray's indicated? COMMISSIONER SCHIFFER: Can I ask a question first, Mark? CHAIRMAN STRAIN: Sure, go ahead. COMMISSIONER SCHIFFER: And Jeff, you were going to change where it says notice of a violation to a finding of violation. MR. KLATZKOW: Yes. COMMISSIONER SCHIFFER: So what is the difference-- what is a finding of violation versus a -- MR. KLATZKOW: Order. Could the Code Enforcement Board order or a Special Magistrate or a judge. I've got some sort of order on the books by a trier of fact. COMMISSIONER SCHIFFER: And wouldn't that order, reading that automatically, wouldn't this person -- they'd have to go before the BZA to update, to get back into the outdoor seating business, right? MS. FABACHER: Yes. COMMISSIONER SCHIFFER: So if they have an order, they're out of the outdoor seating business already, what-- MR. SCHMITT: Still can have outdoor seating. We're talking about amplifying -- COMMISSIONER SCHIFFER: Right, the entertainment, the concern of this ordinance. So the point is, when it read notice, what everybody was saying is true. When it says finding, I think it's something that's different then. In other words, the person buying the thing should realize they're not allowed to have outdoor entertainment, because there's a finding that eliminated it, unless they go through the public hearing, which the new one would have to do. COMMISSIONER MURRAY: If! could add -- CHAIRMAN STRAIN: Let Mr. Schiffer finish first, okay. COMMISSIONER SCHIFFER: No, I'm done. You can add. Page 3 1 September 20, 2007 COMMISSIONER MURRAY: If I could add, it just strikes me that if the code violation or finding of fact that they were guilty, so to speak, they now go to the BZA, and the BZA allows them to come back and do this type of entertainment, they've effectively cured it. And now in a subsequent sale or transfer, they would be penalized again with another hearing. CHAIRMAN STRAIN: I don't know that that would cure it if it's found guilty and -- that doesn't mean it's cured, that means the new owner if they open up could start the same thing up. COMMISSIONER MURRAY: No, no, no. What I'm saying is in the sequence of events, they were cited, the magistrate found a finding of guilt, as it were, that they were at fault. Then if they want to reacquire that right to have that entertainment, they must then go to the BZA. They must pay all the fees to do that. If the BZA finds okay, we're going to give you another chance and then they subsequently intend to sell that, the new owner has to go through the BZA again, simply because there was a finding. Is that appropriate? COMMISSIONER SCHIFFER: And let me -- Mark, can I add one more thing? CHAIRMAN STRAIN: Yes, we need to get this through. We don't want to be stuck on this one paragraph for two hours, so let's finish it up. Mr. Schiffer. COMMISSIONER SCHIFFER: And then the way we have and/or owner and manager, could this just -- I mean, the loophole be that they just keep flipping managers and therefore they wouldn't have to go back to the BZA each time? MR. KLATZKOW: No, as long as it's the same owner of the property, we're okay. My question to the board and what this is getting at is you have a facility that is in the process of going through this conditional use in order to pull their permit and they flip the ownership to another entity. Page 32 September 20, 2007 And the question is, do they get around this whole process by doing that? And I really think that's what this provision is really trying to get at, all right. COMMISSIONER MURRAY: Yes, sure. MR. KLATZKOW: I understand your concerns, Commissioner Murray, but I really think this is getting at the problem where I'm in the middle of a problem with my permit, I do a paper transaction to somebody saying I'm not the owner anymore, and then there's an argument that there's no longer a case, there's a new owner. COMMISSIONER MURRAY: And in may respond -- CHAIRMAN STRAIN: Mr. Murray, you need to be recognized. COMMISSIONER MURRAY: I'm sorry, I thought we were in dialogue, that's what I thought. If I may respond to that. I just -- and I understand that, I know what we're intending to do. Now, my thought on it is we really need to make sure we don't shotgun something, that's all. That's my concern. And I recognize that we can assert that others who have been good about it and haven't had the problem won't have a problem. But I don't know that we can ever say that. We found out over the course of a lifetime that there are a lot of laws with unintended consequences, and that's all I'm speaking to. If there's a better means by which we can make this happen, and it's a crafting process, I think we ought to try to do it. That's all. CHAIRMAN STRAIN: Any other questions before we take a consensus on this paragraph? The idea is to leave it as it is or to go -- suggest the changes that Mr. Murray was talking about. All those in favor of Mr. Murray's changes, signify by saying aye. COMMISSIONER TUFF: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: Three in favor. Page 33 September 20, 2007 All those against? COMMISSIONER CARON: (Indicating.) COMMISSIONER SCHIFFER: (Indicating.) COMMISSIONER MIDNEY: (Indicating.) COMMISSIONER KOLFLA T: (Indicating.) CHAIRMAN STRAIN: (Indicating.) Five. So the paragraphs stays as it is. We'll go forward with that. I had one more question on Page 3. We referred to owner/manager. The context in which we refer to owner/manager in this document seems to be owner/manager of the establishment, whether it be Stevie Tomato's or someplace else. But don't Code Enforcement fines go against the property owner? MR. KLATZKOW: Yes, but they often serve the manager. The owner could be half the world away. CHAIRMAN STRAIN: Well, I understand that. But I mean-- okay, so this has a hook so that the manager would get it in addition to the owner? Does that happen as a requirement? Because if we only notify the property owner, does that assure us that the establishment and everybody coming in will pick up on it? MR. KLATZKOW: Typically they're notifying the manager on these things. CHAIRMAN STRAIN: Okay, well, then that goes back to my original point. Is that legal? MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Thank you. Page 4. Any questions on Page 4? Mr. Schiffer? COMMISSIONER SCHIFFER: In number three, Catherine, is -- they're listing all these things that would allow them to refuse the permit. Does that mean all of them have to apply or any of them? MS. FABACHER: Any of them can apply, Commissioner. Page 34 September 20, 2007 COMMISSIONER SCHIFFER: And A, what it states there is that the use would not be of a type or intensity consistent with the surrounding land uses. So the concern I have is any commercial use. Isn't that really vague? I mean, how could that be proven one way or the other? MS. FABACHER: Well, I think that if you have testimony from both sides in the public hearing, I mean, it's a matter of judgment. BZA has to make a judgment call. COMMISSIONER SCHIFFER: Okay. I mean, it just seems vague. MS. FABACHER: Well-- CHAIRMAN STRAIN: Well, what if in that particular one you said, instead of the word type, may not be of a similar or the same type of intensity consistent with the surrounding land use. That means if you have commercial against residential, it applies, but if you have residential against residential, it wouldn't apply. I know that's a silly comparison, but if you put the word same in there maybe that just solidifies it. COMMISSIONER SCHIFFER: I mean, my concern is anybody could prove that anything against residential wouldn't be of the same type of use. So, I mean -- CHAIRMAN STRAIN: But I think that's the intent if they're emanating noise. Ms. Caron? COMMISSIONER CARON: That's why there is a Board of County Commissioners and a BZA, to make those determinations. So I don't think you have to worry about the language here. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Anything else on Page 4? (No response.) CHAIRMAN STRAIN: Page 5? Anybody have anything on Page 5? Page 35 September 20, 2007 COMMISSIONER SCHIFFER: I did, Mark. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: First of all, you showed me that slip of paper. The hours aren't the same, so should that be a conflict with -- CHAIRMAN STRAIN: By the way, that slip of paper I handed you was the amplified sound ordinance copy, it was nothing else than that. COMMISSIONER SCHIFFER: Right. I just wanted to make sure, is there any way this could be confused with the operations of a church. I mean, obviously, a church could be serving food outside. Would that cause them -- and I guess it goes to another question I was going to save for later, that we use the word entertainment, yet we never really define it. For example, if people were outside -- MS. FABACHER: Actually, Commissioner, we do define it. COMMISSIONER SCHIFFER: Entertainment? Where? MS. FABACHER: Back on the first page, second page, I.B. For purposes of this section, entertainment shall be considered to include any source of amplified sound. And then we define amplified sound earlier. COMMISSIONER SCHIFFER: The point is where, for example, so people are in the backyard yelling and screaming watching the reruns of this hearing, that would be considered entertainment by this? MS. F ABACHER: It's entertaining to me. (Laughter. ) COMMISSIONER SCHIFFER: I'm done, Mark. CHAIRMAN STRAIN: Thank you, Brad. Anybody else on Page 5? (No response.) CHAIRMAN STRAIN: Okay, we'll go to the last page, Page 6. Any comments on the last page? Page 36 September 20, 2007 COMMISSIONER TUFF: Yeah, I do. CHAIRMAN STRAIN: Mr. Tuff. COMMISSIONER TUFF: Three, okay, we've done all this, and now we're going to make them read it -- what is the intent or the purpose of the posting? Why does it matter if it's posted or not? Yeah, we have this permit -- MS. FABACHER: It's not the posting of the permit, it's perhaps the terms of the permit to remind the patrons, and perhaps anybody that goes over there to complain about the noise might be able to read what's posted, and the patrons know the term, that the music has to stop at that time. COMMISSIONER TUFF: If every noise ordinance or any rule had to post everything, you know, your minimum wages and pretty soon you -- I just don't see the value of it. MS. F ABACHER: You think it will be seen over all the beer flyers and -- CHAIRMAN STRAIN: Well, actually, Russ, if you were the owner of an establishment and had a rowdy patron and you wanted to quiet him, you simply could point to that and say I'll lose that permit if you don't knock it off and none of us will be here. It might help enforce the fact that they need to quiet down. COMMISSIONER TUFF: Or you can just kick them out. CHAIRMAN STRAIN: What's easier and what's going on-- COMMISSIONER TUFF: We're required is the part to me. If the guy wants to, he sure can. But we're making the guy redecorate his place. CHAIRMAN STRAIN: Any other comments on that? Mr. Schiffer. MS. FABACHER: We'll make it a very small posting, sir. COMMISSIONER SCHIFFER: Obviously Russ has never bought a ladder recently. The F.3 is what I'm concerned about. You know, we go through Page 37 September 20, 2007 great lengths in the beginning to describe that is not for live entertainment, yet we have a live entertainment definition in it. So first of all, because it doesn't meet the applicability of the ordinance, does this have any weight to begin with? And secondly, why is this in there? MS. F ABACHER: It's true. It may be true. I'm understanding that they're taking another look at the noise ordinance. This is just kind of a catch thing until they get a chance to rework the noise ordinance. But you're right, we could pull it out again. It doesn't strictly apply to this permit. It does apply to that other permit. It's a good catch. It's a good catch. We just wanted to put some kind of protection in there before they could redo the -- I think they're supposed to redo the noise ordinance. COMMISSIONER SCHIFFER: But, Jeff, wouldn't a ten-cent lawyer say, hey, don't read me clauses out of something that doesn't apply to me? MR. KLATZKOW: At least a 20-cent lawyer, yeah. COMMISSIONER SCHIFFER: It's not that well hidden. Thank you. I'm done. CHAIRMAN STRAIN: Any other comments? (No response.) CHAIRMAN STRAIN: Hearing none, do we have any public speakers? MS. F ABACHER: Yes, we do. First person we have is Doug Lewis. CHAIRMAN STRAIN: I'd like to ask that you limit your discussion to approximately five minutes. MS. F ABACHER: After that, we'll have Steve Hart. MR. LEWIS: Good morning, members of the Planning Commission. My name is Doug Lewis. I'm an attorney with the firm Page 38 September 20, 2007 of Roetzel and Andress. I'm a registered lobbyist, and my client list is on file across the hall. I'm here today to oppose the amendment 5.04.07 requiring a permit for outdoor seating with entertainment. Having sat and watched this process, I'm not sure if the issue is noise or if the issue relates to outside eating. Do we have issues with outside eating here in Southwest Florida or do we have issues with noise? Are we looking at a few noise violators or are we looking at a widespread problem inherent with outside dining? We have a noise ordinance, as you mentioned, under the code of ordinances under 5492. Subsection F requires an annual permit for live performances of music and/or amplified sound. Those are annual permits currently required for any commercial establishment that would have amplified sound unless otherwise exempted by the article. And most commercial businesses would be subject to that. I'm not aware of any particular exemptions that staff may be finding issues with there. If you look at subsection one, it says except as otherwise exempted by the article, no person shall cause or allow or suffer live performance of music or amplified sounds to emanate through -- from or through a non-enclosed area. I'm not sure what non-enclosed, how -- that's not defined. I'm not sure what that would mean. I'd be curious to know how staff looks at that -- within commercial or tourist use, occupancy or zone, before obtaining from the county an annual permit in accordance with subsection three. Violations of the noise ordinance are fairly severe. If you look at the penalties, for example, it can be a $500 fine, imprisonment not to exceed 60 days. The noise -- equipment can be confiscated under circumstances. The sheriff under certain circumstances can demand that the violation cease. Ifthere are more than -- ifthere's a second enforcement action-- Page 39 September 20, 2007 this isn't even relating to what your attorney mentioned, Jeff Klatzkow, in terms of a finding, but ifthere's merely an enforcement action referred to the Code Enforcement Board within any 12-month period, the annual permit that we're talking about for purposes of amplified sound can be revoked. And that's a fairly stringent penalty. I'm not quite sure, you know, when we talk about the permit process, there was some comment about that there were different processes. Looking at the language, I think it's pretty clear. And I'd be curious to have staff give us some comments on how the annual permit for amplified sound is being applied. If you're, for example, an Outback Steak House and you have some music running in the background that would constitute amplified sound, are they required to pull an annual permit for that sound that's emanating from the site? MS. F ABACHER: Excuse me. Are we talking -- this is a one-time permit, this ordinance -- this amendment right here is a one-time. MR. LEWIS: I'm talking about the code of ordinances 5492 relating to the annual amplified sound permit requirement. Who's required to obtain that? MS. F ABACHER: People with amplified sound, I would assume. That's done through code. I'm sorry, that's the Code Enforcement process. CHAIRMAN STRAIN: Mr. Lewis, this isn't the forum to have you dialogue with staff. You need to do that at other time -- MR. LEWIS: Understood-- CHAIRMAN STRAIN: We'll decide-- MR. LEWIS: Sure, understood. Just to make the Planning Commission aware, however, there is a permit process in place. With respect to the new process that's being proposed, I think that, you know, there was some reference made by staff that you would need, that this would not apply in the context of amplified sound, I think was the comment that I heard. Page 40 September 20, 2007 If you had outside dining without amplified sound, maybe I misunderstood staff, but I was a little bit confused by that, because I think it clearly reads under 5.04.07 it applies to any outdoor serving area that provides entertainment in the unincorporated portion of Collier County. Under l.A, B it defines entertainment to include amplified sound. Now, I think either I misunderstood what staff had indicated or there was a misrepresentation as to how this applies. But it clearly applies to an outside dining that provides entertainment. Now, entertainment, I don't know ifit means amplified sound, if that's defined as entertainment or if this is just one type of entertainment. But I think members of the public who look at this -- we already have a noise ordinance, are kind of scratching their heads and trying to figure out are we over-regulating, why are we here, what are we trying to accomplish? Is it a noise issue, is it an outside dining issue? And I think if you look at what Attorney Klatzkow mentioned; that he felt that from a constitutional perspective that we would need a finding in order to implement any penalties under this ordinance, an actual finding that there's been a violation of the noise ordinance. Well, in that context, I'm not sure why we're here, what this even gets us. If we have to have a finding in order to have any remedies under this, a finding of a violation, we already have remedies under the noise ordinance. We have penalties of monetary penalties, potential imprisonment. We have a revocation that can occur in the event of a hearing that's been brought, not even a finding. And two hearings within a 12-month period could result in revocation of the permit-- THE COURT REPORTER: Mr. Lewis. MR. LEWIS: -- on an annual basis. CHAIRMAN STRAIN: You need to slow down, Mr. Lewis. MR. LEWIS: So with that, I'm just not sure -- the other part that Page 41 September 20, 2007 I would like some clarification on is in terms of 5.04.07.A on applicability. The -- are we talking about outdoor entertainment coupled without outdoor seating? If so, I think that we may want to reflect under 5.04.A in between the word providing and entertainment if we're talking about outdoor entertainment, then we might want to put the word outdoor entertainment. Again, I'm not sure where this gets us. If entertainment is defined as amplified sound, we already have an amplified sound permit requirement. So again, are we trying to penalize those establishments that are not noise violators that are simply merely trying to provide an outdoor dining environment? If so, I think that, you know, we may be imposing legislation or ordinances that really don't provide any benefit and certainly impose quite a bit of burden on the community. CHAIRMAN STRAIN: Thank you, Mr. Lewis. And I did make some notes at some of your questions. I'll try to get to as many of them as -- that I can remember. MR. LEWIS: Great. Thank you, Commissioner. CHAIRMAN STRAIN: Thank you. And the first one, Catherine, it does bring up -- I don't know if Mr. Lewis was here in the beginning of this meeting where you had originally spoke about amplified sound being under a separate permit until Mr. Schmitt indicated that, no, it was under this LDC language. I think the difference is one is under our code of laws and the other is in the Land Development Code. And I thought you had made that -- you had provided that information. But it does bring up a question. How does this ordinance, if it were to be approved, interact or supercede or mesh with 5492 in our code of laws? Mr. Klatzkow? Page 42 September 20, 2007 MR. KLATZKOW: It doesn't supercede it. It's going to have to be in conjunction with it. CHAIRMAN STRAIN: If that's the case, the intent that I thought of this LDC amendment was that 5492 did not provide enough public participation if the issue got out of hand, as it has gotten out of hand in some establishments. And for those times it gets out of hand, this LDC amendment was supposed to be written in a manner that triggers a public process then if they insist on going further, and that is a conditional use application full vented in the public. That was the intent of this. That's what I understand we're trying to do here today. If I'm wrong on this, say so. But that's where I believe we were headed. MR. SCHMITT: That is, in fact, correct. I'm reading the language in the code of laws and ordinances, and basically this amendment is an attempt to bring the issue before the Board of Zoning Appeals. Whereas now all we have under the Code of Laws and Ordinances is an enforcement act through either the special master or Code Enforcement Board. And it is an annual permit, as Mr. Lewis stated. This process puts that violation in front of the BZA so that the BZA then can take action rather -- there is enforcement action through the Code Enforcement process, but that's usually just either monetary, a fine or some other action. This becomes a conditional use process. CHAIRMAN STRAIN: That's what I thought. Thank you, sir. And the other question I made a note on -- Mr. Schiffer, go ahead, I'm sorry. COMMISSIONER SCHIFFER: I was going to say, the concern I've always had is this thing is triggered by a violation of the noise ordinance. If we're not getting those violations now, what good is this going to do? In other words, we've cited some examples, and we've heard that we can't control this with the noise ordinance, then how is this going Page 43 September 20, 2007 to do anything because we're still not getting the violation we need to trigger it? CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yes, because at this point they are trying to rewrite the noise ordinance so that this will help. That's the whole point, to get this in the process. COMMISSIONER SCHIFFER: Couldn't adding to the noise ordinance, wouldn't it be just as simple to add -- it would be effective -- if you have an outdoor seating area and you get a violation, you have to go before the BZA? Why do we have to write a brand new companion ordinance for what's already in our laws? And I think the laws are pretty serious. I mean, the fines are serious, jail time. I mean, you start throwing the owners of bars and restaurants in jail, they might start thinking twice about it. CHAIRMAN STRAIN: Go ahead, Ms. Caron. COMMISSIONER CARON: Well, I think, A, that's not happening. And B, the point, as Commissioner Strain mentioned, was to bring this into the public process so that the public was allowed to weigh in and that conditions could be applied to these, stipulations can be applied, and that the neighbors can have some comfort when they have to live next to these businesses. CHAIRMAN STRAIN: Brad, I think part of the premise of this that I see is that if you get a fine from Code Enforcement, you pay your fine, you go -- you keep your doors open and you could do it again the following night and you go pay another fine. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: This puts an onus of an actual limitation to the use through the zoning process and the public that if you lose your zoning process, you open that door up to that same kind of entertainment again, it stops. And that's, I think, the severity. That is the difference, and maybe that's why to me it's a little more of a need or more of a precautionary measure. Page 44 September 20, 2007 COMMISSIONER SCHIFFER: But in our noise ordinance, you have to get an annual permit now. Wouldn't that annual permit be refused if you're a violator of the noise ordinance and thus you have the same situation? CHAIRMAN STRAIN: I don't know where the burden of proof is on, do we know, of those ordinances? In fact, I think they're done administratively to a point, then they're done through a board after, if it's a repeat violator or something like that. I'm not sure what burden is put on that. I know a change in use, that certainly will stop somebody. COMMISSIONER SCHIFFER: Change in use, but I think eventually the manager and the owner, if they think they're in jail, they might not do it the next time. But anyway, my opinion. CHAIRMAN STRAIN: The last question that Mr. Lewis brought up I would like to respond to is a non-enclosed area versus definition for that. Is that something that's understood by staff, what a non-enclosed area is? Is it somewhere you have that -- MS. F ABACHER: It doesn't have four walls around it. CHAIRMAN STRAIN: Is that an arbitrary definition or is that one that we can rely upon? How is that -- MS. ISTENES: There's several definitions in the LDC that would apply. I'll have to go back and look through them. But things, you know, structures with roofs versus walls. I'm not going to say it's arbitrary, but I'm not sure we have one very specific definition. CHAIRMAN STRAIN: If you were to just check that to make sure it's as specific as it could be, that might be helpful. And our next speaker, Ms. Fabacher? MS. F ABACHER: Mr. Hart. MR. HART: Thank you, Mr. Chairman, Commissioners. My name is Steve Hart, vice president for public policy with the Greater Naples Chamber of Commerce. It occurs to me that perhaps one unintended consequence of this Page 45 September 20, 2007 might be the rise of the use of mimes as entertainers in outdoor eating areas. And while that might be good and beneficial for a very small troupe of actors, the seriousness of this has already been hit upon several times, and that is the potential for this to damage small business, mom and pop restaurants. I mean, what we're -- it's already been established what we're talking about is a noise problem. And the attorney, your attorney mentioned that it would be easier to address this through the noise ordinance. Heaven forbid we in government would choose to be -- to find the easier way to find a solution to the problem. I urge you to think about this very seriously. I think the potential damage and harm to small businesses and small restaurants far outweighs the effort. And I understand the seriousness of the effort. But it seems to me that in addressing this through the noise ordinance that is already on the books, tweaking the noise ordinance is a far more efficient and ultimately far more fair way to address this. And I urge you to allow that process to go forward. Thank you. CHAIRMAN STRAIN: Thank you. Okay, any comments or questions from -- any other speakers? I think that was our last public speaker? MS. FABACHER: No, sir. That was the last one. CHAIRMAN STRAIN: Any further comments? Mr. Kolflat. COMMISSIONER KOLFLA T: Yes, Mark, I'd like to reiterate what I brought up at the last meeting, the problem is with noise. That's a noise problem we're facing. And what we're trying to do, we're trying to move, cruise around in the wrong church. The right church we want to be in is the noise ordinance and amend that and change that to whatever is needed to solve the issue. CHAIRMAN STRAIN: Any other comments? (No response.) CHAIRMAN STRAIN: Hearing none, we'll decide on how this Page 46 September 20, 2007 goes forward. We've made some language tweaking and changes to the document. I would assume that any motion to move it forward would include those changes as they were noted as we went through. So let's either have a motion to move it forward or a motion to recommend denial. Is there a -- Mr. Tuff. COMMISSIONER TUFF: I move we recommend denial. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Motion made by Mr. Tuff, seconded by Commissioner Murray. Okay, discussion? Mr. Schiffer. COMMISSIONER SCHIFFER: I'm going to vote in favor of the motion. I think there's a real problem out there. And Donna, my vote doesn't minimize the need for that. But I really agree, we have a good -- the ordinance is a problem. This whole thing is based upon violations triggered by our existing ordinance. So if there's a problem in the ordinance, we fix it. If we keep the ordinance the way it is, this will never be triggered. So I'll be supporting the motion. CHAIRMAN STRAIN: Mr. Murray, we know you're going to support the motion, right? COMMISSIONER MURRAY: Yes, but I want to make a comment. I want to be absolutely clear to everyone that I am as much concerned for people who are subjected to rude noise and conditions that are inappropriate in a residential neighborhood. And I agree, the chairman cited earlier, perhaps if they had a better planning format existing that wouldn't have happened. But I think the way to deal with it, again, is through the noise ordinance, and I think we can tweak it more effectively. CHAIRMAN STRAIN: Any other comments? Ms. Caron. Page 47 September 20, 2007 COMMISSIONER CARON: Yeah, I think that dealing with a noise ordinance is one thing. Dealing with this is a separate issue, because what this allows that the noise ordinance does not at this point is the conditional use process, where the people get to weigh in. The people who have to live with these businesses day in and day out at night, they will get to weigh in, and potentially conditions can be placed on these businesses to ameliorate problems and issues. So I will not be supporting the motion. CHAIRMAN STRAIN: Any other comments? Then I'll make mine. We started this out with a rather lengthy document that talked about outdoor seating, and we were -- correctly discussed the problems that that would occur to the small business. Anybody having a waiting table outside basically would be subject to that ordinance. It was overbearing. After many meetings we came back and decided the focus should be on outdoor entertainment. And I don't care if it's the biggest restaurant in the town or the littlest mom and pop, if they decide that they're going to have outdoor entertainment next to a residential area, and they're going to decide they're going to have a band and make noise, by God, they all ought to be judged the same way. And that's what this ordinance does, it puts them all in one class and they're penalized and looked at positively if they operate properly as outdoor entertainment. And that's what this is for. It's not attacking any particular businesses, it's generic. So with that, that's my comments on why I will not support the motion. So with that, all those in favor of the motion to recommend denial of this LDC amendment, signify by raising your hand and saymg aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. Page 48 September 20, 2007 COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: One, two, three -- six in favor. All those against, same sign. COMMISSIONER CARON: (Indicating.) COMMISSIONER ADELSTEIN: (Indicating.) CHAIRMAN STRAIN: (Indicating). One, two, three against. Motion carries for recommendation of denial, six to three. We will take a I5-minute break and be back here at lO:OO. MS. F ABACHER: Thank you, Commissioners. (A break was taken.) CHAIRMAN STRAIN: Okay, if everybody will come back to their seats, we can resume our meeting. And that previous discussion was the conclusion of the LDC cycle one hearings. And Mr. Klatzkow, do I have to formally request an adjournment of that? MR. KLATZKOW: I think you just did. CHAIRMAN STRAIN: I just want to make sure, wanting to cross the T's and dot the I's. Item #8B PETITION: PUDZ-2005-AR-7883 Our first advertised public hearing today that was not continued was petition PUDZ-2005-AR-7883. All those wishing to provide testimony on behalf of this petition, please rise to be sworn in by the court reporter. (All speakers were duly sworn.) Page 49 September 20, 2007 CHAIRMAN STRAIN: Are there disclosures on the part of the Planning Commission? (No response.) CHAIRMAN STRAIN: Well, I guess it's just me then. I got a call yesterday from Mr. Nadeau, and we went over a couple of the issues that I will certainly bring up at today's meeting. Mr. Nadeau, it's all yours. MR. NADEAU: Very good. Mr. Chairman, Commissioners, I'm very proud to stand before you this morning. My name is Dwight Nadeau, I'm planning manager for RW A, representing Habitat for Humanity of Collier County, Inc. on this PUD rezoning. It's your county's application reference number 7883. In attendance with me is Mr. Andy Woodruff from Passarella and Associates. He may address any environmental questions that you may have. Mr. Pierre Bruno from Forge Engineering, he's a geologist. We used to have our client, Nick Hulaharis (phonetic) but he had to catch a plane, so he's not with us right now. Emilio Robau, professional engineer, specifically with water management utilities. And Mr. Reed Jarvi for transportation issues. The subject property is ll.2 acres. It's located in existing predominantly single-family neighborhood located on the corner of W oodcrest Drive and Acremaker Road, in Section 26, 48 South, Range 27 East. This is a proposed rezone from agriculture to RPUD through an affordable housing density bonus agreement with the Board of County Commissioners to permit a density of no more than 5.89 dwelling units per acre. While the density bonus agreement could provide for up to eight dwelling units per acre bonus to use, plus the base of four, which could total 12, this applicant is asking for 1.98 dwelling units per acre density bonus, plus the base density, bringing us to the 5.98 I previously referenced. Page 50 September 20, 2007 The property actually has a very interesting history behind it. Habitat for Humanity was able to acquire this property through the assistance of a monetary contribution resulting from the Heritage Bay DRI approval. That was to partially respond to their affordable housing requirements of the DRI. Sixty-six homes are being proposed in the development, and they're attached single-family residences. It's the standard Habitat home, but they've been attached to provide for the greater preservation area that's been required for the site. The site -- each home will sit on a platted lot and that lot will be sold fee simple, along with the residential units. As I stated, these are affordable units and they will be for the very low and low income residents of our county. The project will use three configurations of the standard Habitat homes, typically in a duplex form or attached single-family or four units attached together, and they also have a stand-alone single-family home. Access from the subdivision will be from W oodcrest Drive. That road will be improved as a minor collector roadway through the cooperative efforts of Habitat for Humanity and Waterways Joint Venture Five that was recently approved back in December. Development assistance and easement agreement was also entered into between Habitat and Waterways, such that the property would have unencumbered access. The Summit Lakes project will be providing water and sewer service through their PUD to service this Habitat-Woodcrest property. And additionally, the treated stormwater from the project will be routed and passed through the Summit Lakes master water management system. There will be one preserve on the property, totaling 1.68 acres. I have on the visualizer the master plan, you can see the preserve down in the southwest corner of the project. The required neighborhood information meeting was held on Page 51 September 20, 2007 January 2nd ofthis year. And while 58 notices went out, there were two members that attended the neighborhood information meeting. There were no objections expressed at the meeting. There were some discussions related to whether or not W oodcrest Road would be constructed before the residential units. And the answer to that is yes. And whether or not there was going to be a wall around the preserve, it was a concern of one of our attendees, Mr. Baker, who's actually in the audience with us today. And there will not be a wall around the preserve. With that, I think I've addressed the salient issues. And I would request your support for this petition with a recommendation of approval to the board. If I or our consulting team can now answer any questions, I'd be happy to do so. CHAIRMAN STRAIN: Okay. Commissioner Adelstein. COMMISSIONER ADELSTEIN: First of all, one of your statements states the minimum front yard setback will be 20 feet. Is that going to be right or are we going to go back to the problem of what are we going to do with the cars that are being parked in this 20-foot lot? MR. NADEAU: Well, the setbacks are 20 feet. But the provisions of the Land Development Code related to having a car not being over a sidewalk do prevail. So there will be a 23-foot setback-- COMMISSIONER ADELSTEIN: Twenty-three foot setback -- MR. NADEAU: Twenty-three foot setback from the back of the sidewalk to the residential unit. The sidewalk sits three feet inside the right-of-way. Setbacks are measured from right-of-way. So there's the 20 plus the three. COMMISSIONER ADELSTEIN: Thank you. CHAIRMAN STRAIN: Any other questions of the applicant? Mr. Schiffer? COMMISSIONER SCHIFFER: What's the length of your Page 52 September 20, 2007 cul-de-sac? MR. NADEAU: My eyes aren't good enough for this small picture. It appears that the cul-de-sac may be 450, maybe 500 feet. COMMISSIONER SCHIFFER: Really? From the road, the dogleg to the cul-de-sac is 400 feet, 500 feet? MR. NADEAU: Approximately, yes, sir. COMMISSIONER SCHIFFER: And then when you request a deviation in the width of the cul-de-sac, obviously there's the lane, but the turning radiuses don't meet the fire ordinances. Is there anything we could do here today that would override the turning radiuses of the fire code? MR. NADEAU: While this project is in a construction plans and plat preparation, we're aware of the new NFP A regulations and the cul-de-sac in the subdivision will meet those standards. The dev -- I'm sorry to interrupt, Commissioner. The deviation we're requesting is just for right-of-way width. COMMISSIONER SCHIFFER: So the turning radiuses shown here will not be in the final plat? MR. NADEAU: That is accurate. COMMISSIONER SCHIFFER: And then since some of these are essentially -- you call them single-family attached, townhouses would be another word for that, when you do the side yard, you say it's zero or six feet. But obviously some of those are going to be zero and zero. Do you think that's clear? I guess we're depending on Figure 1 to -- MR. NADEAU: Yes. The staff in the review had some questions on how the setbacks would be applied, and so that's why we included Figure 1 in the application, to show the minimum separations between the various types of units. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: On Page 7 of 11 of the staff report, Page 53 September 20, 2007 under zoning and land development review it talks about the different buffers. MR. NADEAU: Yes, Commissioner. COMMISSIONER CARON: My question is, why are they different depending on which side of the development you're on and which residential units you're going to abut -- MR. NADEAU: Well-- COMMISSIONER CARON: -- or are adjacent to? MR. NADEAU: The Land Development Code provides for various buffer types based on the land uses that are associated with that perimeter property line. Typically -- no, required by code adjacent to a roadway, we have a Type D buffer. And the width of that buffer is determined by the width of the adjoining right-of-way. Where you have differing land uses, let's just say if we had a multi-family -- COMMISSIONER CARON: Let me stop you right there. Read what it says. From the residential uses to the north and west, a IS-foot Type B buffer. From the residential uses to the south, a 10- foot D buffer. We're not talking about different uses, we're not talking about roads, we're talking about residential uses. And my question is why are the buffers different? MR. NADEAU: There is Acremaker Road along the south boundary, which would define the requirement to use a Type D buffer associated with that south boundary. Whereas on the north and the west boundaries, the IS-foot Type B is prescribed by the code. CHAIRMAN STRAIN: Anything else, Commissioner? COMMISSIONER CARON: Yeah. At the neighborhood information meeting, which you referenced earlier. MR. NADEAU: Yes. COMMISSIONER CARON: The number of units per acre was misquoted, and so you were going to be notifying everybody of the Page 54 September 20, 2007 change from 4.89 units an acre to 5.89. MR. NADEAU: That is accurate, Commissioner. COMMISSIONER CARON: Has that been done? MR. NADEAU: And that has been done. I can offer into the record the letters that were sent out certified mail with the return receipts. COMMISSIONER CARON: And the loop road, can you talk to me a little bit -- I mean, I'm not sure what the loop road is. MR. NADEAU: Would you possibly be speaking of the Woodcrest Tree Farm loop that would avoid the Collier Boulevard intersection with Immokalee Road? COMMISSIONER CARON: I think that's what it means. It says access to the site would be from an improved W oodcrest Drive. MR. NADEAU: Yes. COMMISSIONER CARON: And a loop road from Immokalee to Collier is being planned. MR. NADEAU: That is accurate. That was through a developer's contribution agreement that resulted from the Summit Lakes RPUD that you heard prior to the first of the year that was adopted by the Board in December, I believe, of2006. COMMISSIONER CARON: So from here, from this development, where is that loop road going to be? MR. NADEAU: I don't have an exhibit that will get me that far south. But if I were going to refer to the vicinity map, the Tree Farm Road -- excuse me, W oodcrest Drive is going to go south from Immokalee Road past Woodcrest and just south of Nicaea Academy. It will have an intersection with Tree Farm Road. And that Tree Farm Road will make the connect to -- COMMISSIONER CARON: 951. MR. NADEAU: -- Collier Boulevard. There's additional work that's being done to provide the connection between Tree Farm W oodcrest intersection down Massey to provide an alternative access Page 55 September 20, 2007 also to Vanderbilt Beach Road. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Are there any other questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Dwight, just to follow up, I actually scaled the thing. It's -- the -- first of all, the road that's in there that dead-ends, abuts the, is that going to interconnect with Crystal Lake? MR. NADEAU: Oh, no. COMMISSIONER SCHIFFER: Then you have like a -- you have twenty -- it's a 2600-foot cul-de-sac, not 500, which exceeds code. What I did is you provided a graphic scale and -- MR. NADEAU: Of course, may I approach, Mr. Schiffer? COMMISSIONER SCHIFFER: Sure. CHAIRMAN STRAIN: Careful, he's dangerous. COMMISSIONER SCHIFFER: Dwight or me? CHAIRMAN STRAIN: Don't say it -- don't have any discussion, though, because you have to have it on the microphone. COMMISSIONER SCHIFFER: That's 600 feet right there. I took the scale -- have somebody from your side check it, okay? CHAIRMAN STRAIN: Are you all set? COMMISSIONER SCHIFFER: Yeah, and the person who's going to check it, he can get a smaller one, make a little -- there's graphic scale there, make a little scale and measure it. But considering you're coming in off of the north-south road, all the way to that cul-de-sac is the length of the cul-de-sac. MR. NADEAU: Yes, that's accurate. I understand your question, Commissioner. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions? Mr. Murray? COMMISSIONER MURRAY: Let's talk about the traffic Page 56 September 20, 2007 impact issues. Not that they are significant, but just in reading the document, an awful lot of dates here of completion projection, road completion, the projected dates, they're out of sync, they're out of time. Can we talk to that without getting into a lot of detail? Can we just say that we've adjusted these numbers to that, or this is what we're being offered? MR. NADEAU: I'll let Mr. Jarvi speak. He has some dated material, I think. MR. JARVI: Reed Jarvi. For the record, I was not sworn in. (Speaker was duly sworn.) MR. JARVI: Yes, sir, Mr. Murray. The biggest thing here is this was done in almost going on a year-and-a-half ago. And at the time we think those dates were probably accurate. Obviously they have changed over the years. And, you know, there are updates to these as they push -- the projects have been pushed back. And so if you want to go over what they should be now, or I don't know that it directly matters for this project. COMMISSIONER MURRAY: My view, unless I'm in error, is that it's nominal, the impact is nominal. And I don't wish to go through the detail. But what I'm asking, basically, is that you are cognizant, you have taken notice, and you were going to give us notice in some way or give it to the Board of County Commissioners in an updated document of what those numbers are and what other impacts and maybe dates in particular. You're going to modify that or you're going to leave this the way it is? MR. JARVI: We can certainly modify that page to update it to the current page. COMMISSIONER MURRAY: Or you could speak to the manner in which you're doing it right now instead of raising the issue. MR. JARVI: Obviously, it's not a -- I completely agree when Page 57 September 20, 2007 you said it's not a substantial change for this particular project. Obviously the dates are changing substantially. COMMISSIONER MURRAY: I agree. I was having a hard time I think for the projected traffic, at the bottom of the page there. And I just don't understand why I couldn't find it. And it said the distribution differs slightly from that used in the October 2002 study in recognition that additional trips should be assigned to County Road 951. MR. JARVI: Yes, that statement should not be there. That's from -- COMMISSIONER MURRAY: So I thought maybe this was merely a template that would -- MR. JARVI: Essentially it is what you're saying. Through all our reviews and the county reviews and everything nobody's noticed that, and it should be deleted. COMMISSIONER MURRAY: I wish you would, because it doesn't add credibility to this other document. Not that I doubt you. That was my question. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Dwight, I have a few. If you turn to your development standards table, and it's the footnote four that concerns me. And I need you to explain it to me. I see the figure, I have no problem with that. But it's clear the setbacks are permitted for residential properties that have an exterior wall associated with a side yard that is of a lesser height than the floor above. What I'm trying to get to is you have a minimum side yard setback of six feet. Are you trying to tell us it's not six feet by that footnote? MR. NADEAU: Absolutely not, Commissioner. The setback is six feet, and ifthere were a second story, that second story would only Page 58 September 20, 2007 be able to have a setback measured from the upper building wall so long as there was a IS-foot separation between the first floor and the second floor wall, thereby allowing for a different setback. CHAIRMAN STRAIN: Well, then, wouldn't you have said in your development standards table that the setback would be half the sum of the building height and/or something of that nature in order to even come under that category? Because the way I look at it, I don't care what you build, whether it's 25 feet or 18 feet, you're still going to be six feet, because that's what you said in your table. MR. NADEAU: Yes. CHAIRMAN STRAIN: Then why do we have the note four then? MR. NADEAU: Actually, Commissioner, the Habitat for Humanity is looking to do a two-story townhouse product, and we provided for it in this PUD. They have no intention of using it now. I would be happy to remove if you would like, and the figure. CHAIRMAN STRAIN: If they -- and Ray, since you're the staff member here and probably knowledgeable about this, if you were looking at this development standards table and this project came in showing a two-story structure, what would your setback for the side yard, would you figure it would be? I don't mean to put you on the spot but -- I'm sorry. MR. BELLOWS: It would be a six-foot setback. CHAIRMAN STRAIN: Okay. So then we have no need for footnote four, because it just confuses the issue. And I would rather it be struck, if you have no objection. MR. NADEAU: I have no objection at all, Commissioner. MR. BELLOWS: For the record, I think the reason -- when I saw this when I first reviewed the document it was just an additional clarification that they would add additional IS-foot for the second story . Page 59 September 20, 2007 CHAIRMAN STRAIN: It's irrelevant, though, isn't it? If they used the full 25 feet and their setback is six feet, what difference does it make? MR. BELLOWS: Well, the second story could be six feet then. That's the difference. CHAIRMAN STRAIN: Right, I understand that. But that -- I understand. So if they have a two-story structure, they could be six feet from the property line. MR. BELLOWS: Yes. CHAIRMAN STRAIN: But that's what this reads. And I'm just -- not saying it's good or bad, I'm just saying that's the way this reads. So what difference does it -- MR. BELLOWS: I understand what you're saying. My interpretation was they just wanted an additional 15 feet setback for the second story. CHAIRMAN STRAIN: Ahh. MR. NADEAU: That is accurate. CHAIRMAN STRAIN: Then fine, then why don't we say that. Then footnote -- that's why you need the terraced setback on the footnote. Okay. Does that get us into the wedding cake concern? MR. BELLOWS: When I first read that, I thought maybe that could be deemed that. But in my personal opinion, it is not. The wedding cake issue dealt with multiple stories of greater than, say, a 10-story building where you step back each additional floor. That's more in line of the wedding cake situation. CHAIRMAN STRAIN: With your clarification, I'd rather leave number four in. MR. NADEAU: Very good. Thank you, Commissioner. I can wordsmith this, too. Because you're going to see this terraced setback again in other PUDs that I'm drafting. So I'll work with Ray to make sure it's clear for both of us. Thank you. Page 60 September 20, 2007 COMMISSIONER SCHIFFER: Mark, can I jump in? CHAIRMAN STRAIN: Sure, go right ahead. COMMISSIONER SCHIFFER: You could cure that just making the second floor side setback always be 21 feet. MR. NADEAU: I could do that as well. COMMISSIONER SCHIFFER: And you don't need to -- but I think it's a good thing to have. CHAIRMAN STRAIN: Yeah, I do, now that it's been explained. I agree with you. On your Figure 1 sketches, let's go to the one on top, first. Attached and detached single-family. You have a reference to a Type B IS-foot buffer. But then you have a IS-foot minimum setback to the building that goes beyond the IS-foot buffer. MR. NADEAU: That is accurate. And all we're doing is we're showing what the setback minimum is. It is not proportional or to scale. This was in an attempt to provide a graphic clarification of the development standards wherein there was a difference in side yards between six and zero. And staff felt it appropriate to include figures so that it would be a more graphic depiction of the standards. CHAIRMAN STRAIN: And I think that's a good thing. And I don't see the conflict as much on that top diagram as I do on the bottom one. The bottom, you show a 20-foot maintenance easement. Then you show a IS-foot minimum setback for the buildings. You can't be five-foot into your maintenance easement with your building. MR. NADEAU: That is absolutely correct. And Commissioner, that would -- the Land Development Code prohibits structures within the 20- foot maintenance easement, so I felt the code would regulate that. CHAIRMAN STRAIN: Well, since a PUD is its own ordinance, I would be a little concerned that -- if it's silent in the PUD, the code regulates it, but if it's stated in the PUD, generally the PUD dominates. And I would see that as a potential conflict that staff may have if Page 61 September 20, 2007 somebody wanted to come in and argue a point. If staff has a solution to it, I sure would be willing to hear it -- MR. NADEAU: Commissioner, I would be happy to just remove that dimension. CHAIRMAN STRAIN: That would be better. MR. NADEAU: I can do that. Would you like me to remove the dimension for the minimum rear yard from the figure above? CHAIRMAN STRAIN: It would be cleaner because you have that stated in your development standards table. MR. NADEAU: I'd be happy to do so. CHAIRMAN STRAIN: Then if you go a couple pages back-- by the way, Ray, congratulations, we finally are getting our standardized form more in place. The only department that needs to be fixed is transportation. They still have problems. But I know we reluctantly forgot to follow through on Nick's memo then, I still have it on the front of my book. And that will have to come up one of these days when I have more time. MR. BELLOWS: Yes, we have been working on transportation, and Nick and John have been very much trying to work with us. And I would -- I think it's the next cycle you'll be seeing some language sponsored by transportation that will allow them to feel at ease and not require the standard language in PUD documents in the future. CHAIRMAN STRAIN: Must all be extraction language of some kind. Typical transportation. After exhibit E, you have another figure, and it shows a building with a rear wall and how that's all fitting together. But it shows setbacks that appear to be 7.5 feet minimum. But I think your setbacks in your development standards table conflict with that. MR. NADEAU: Are now six. I'll be happy to change that to six. CHAIRMAN STRAIN: Those are my questions at this point. Thank you. Any other questions of the applicant? Page 62 September 20, 2007 (No response.) CHAIRMAN STRAIN: Okay, we'll hear from county staff then. MR. MOSS: Good morning, Commissioners, John-David Moss, department of zoning and land development review. The subject RPUD, if approved, would allow for a mixture of attached and detached single-family units for owners earning 60 percent of less of the median income for Collier County. With this project, as Dwight stated, a maximum of 66 affordable dwelling units at a gross density of 5.9 units per acre has been proposed. To achieve this density, the petitioner is seeking approval of an affordable density housing bonus agreement, which would authorize the utilization of an additional 1.9 affordable housing bonus density units per acre over the four dwelling units per acre permitted by the comprehensive plan. And that agreement is in Exhibit C to the staff report. And per that agreement, the Habitat-Woodcrest RPUD does qualify to receive eight dwelling units per acre in addition to the base four dwelling units per acre for a total of 12 dwelling units per acre. However, the petitioner is only requesting the additional 1.9 dwelling units per acre. CHAIRMAN STRAIN: David, slow down a little bit, the court reporter is just burning her poor fingers up. MR. MOSS: Okay. Sorry. Sixty percent of the site would remain as open space, with 15 percent of the site planted with native vegetation. Zoning and land development review staff is recommending approval of the petition and the requested deviations that are outlined in the staff report. And staff is also recommending approval of the affordable housing density bonus agreement, which authorizes the construction of the additional 1.9 dwelling units per acre beyond the four dwelling base units per acre permitted by the GMP. Page 63 September 20, 2007 Thank you. CHAIRMAN STRAIN: Thank you, sir. Are there any questions from the commission? Mr. Murray. COMMISSIONER MURRAY: John-David, this really is probably not for you as much as it is for the county overall. The three deviations, and you've noted in there that they're reasonable deviations and they've been applied throughout the county. Is this something that probably should -- do you really want to put that in there each time, or should we not get change -- get rid of it, and change that over to limiting the deviations, if they're that widespread, or are we accommodating a particular need here? MR. MOSS: I don't know that they're that widespread that they need to be -- that the code needs to be changed. But the point I just wanted to make is that they had been applied before so it's not uncommon for these deviations to be requested and to be approved. COMMISSIONER MURRAY: Have they been applied over every type of -- maybe you don't know that. MR. MOSS: Yeah, that's -- COMMISSIONER MURRAY: I'm looking for the equity issue, whether or not they're not -- I recognize the county at the same time is looking to have affordable housing. I'm not negative. I'm just looking to find out if -- so -- MR. MOSS: Yeah, I might defer to Rayon that one or Joe. MR. BELLOWS: Yeah, that's our standard DOT standard. Standardized. COMMISSIONER MURRAY: Standardized, in that the deviations are -- what do you mean by standardized? MR. BELLOWS: Maybe I didn't hear the question. Can you repeat that? COMMISSIONER MURRAY: What I was attempting to find Page 64 September 20, 2007 out is whether or not if such a -- if any applicant were to request a deviation of this sort, no matter who they were, they would be given the same opportunity for this deviation? MR. BELLOWS: That's correct. COMMISSIONER MURRAY: Okay. So that this makes it curious that we couldn't change the -- okay. CHAIRMAN STRAIN: Any other questions of staff? Mr. Schiffer. COMMISSIONER SCHIFFER: John, what is the -- and Dwight, I realize that my scale was twice as big, but it still (unintelligible) -- what is the length of a cul-de-sac anyway? And what I'd like to do is make sure we add to deviation one this variance. MR. NADEAU: Absolutely. Again for the record, Dwight Nadeau. Commissioner, we did go out and scale it off. It's approximately 1600 feet long. Recognizing that I can either ask for the deviation to go beyond the thousand feet that's currently provided for by code here with you, and I can add that in. We also have the opportunity of adding it in through the subdivision process. Deviations are accepted through the PPL. But if you'd like, we can do it right now, add it in? COMMISSIONER SCHIFFER: I think it should be added to deviation one. CHAIRMAN STRAIN: Well, before we go too far, the length of a cul-de-sac dictates the length of the water and sewer and other lines that go in there and they have pressure regulators and other items that may come into play the longer you go. Has -- I'm now concerned if that's going to happen, has staff reviewed it under that revised length or reviewed it at a thousand feet or less? And that could be a concern from an infrastructure viewpoint, from a staff perspective. I don't know. MR. NADEAU: The review of the project has been based on the Page 65 September 20, 2007 site plan that's before you. And I would also identify that the fire district has required us to put an emergency access to W oodcrest Road, so it would be either a stabilized geogrid surface with turf grass or something over it so they would be able to go straight through onto Woodcrest in the event of an emergency. CHAIRMAN STRAIN: Are the utilities on Woodcrest? MR. NADEAU: The utilities will be coming south on W oodcrest, yes, sir. CHAIRMAN STRAIN: Why don't you tap into them at the end or through that -- why don't you put easements through that road grid you're just now talking about, put a loop system in and benefit everything a lot more. COMMISSIONER MURRAY: Much better. MR. NADEAU: Not being an engineer, I can't give you a definitive answer, but if I look back, is that okay? CHAIRMAN STRAIN: Well, I can tell you, I would do that, because you'd get a benefit from the pressure in the loop and it saves you a terminal point for your utilities that you don't have to deal with, because you've got a continuous loop, and it helps everybody out. MR. NADEAU: I have no objection to that, Commissioner. CHAIRMAN STRAIN: Okay, so that connection between the end of your cul-de-sac on Woodcrest will also contain the necessary utility easements to allow that connection to occur. MR. NADEAU: Very good. CHAIRMAN STRAIN: Staff needs to note that any way they need to. Does that work? COMMISSIONER SCHIFFER: But we will add it to deviation one today. CHAIRMAN STRAIN: Yeah, you can add that part of the deviation one with that contingency, yes, I think that would work. Okay, anything else of staff? (No response.) Page 66 September 20, 2007 CHAIRMAN STRAIN: Okay, Ray, do you have any public speakers? MR. BELLOWS: Yes, we have one speaker. Joseph Cruz. CHAIRMAN STRAIN: Mr. Cruz, if you'll come up and use one of the podiums. Yes, sir. Were you sworn in earlier, sir? MR. CRUZ: I was. CHAIRMAN STRAIN: Please state your name for the record. MR. CRUZ: Joseph Izquierdo Cruz. Good morning. And I thank you for the opportunity. Again, my name is Joseph Izquierdo Cruz -- (Speaker moved to a different podium). MR. CRUZ: Great. Again, Joseph Izquierdo Cruz, and I am a property owner in the Acremaker Road. I'm representing myself and my interest in said property. I'd like to begin by stating that I believe the organization of Habitat for Humanity is a much needed organization, providing excellent service in the residential community, especially in Collier County. I have personally volunteered my time and my efforts in previous Habitat projects in building Habitat homes. However, in the case of the Woodcrest Acremaker Road Habitat project, I do not agree with this project on hand for the following reasons. First and foremost, I believe the location of Acremaker Road really is now central. That is, as you may know, the location is close to shopping, close to schools, major facilities, and many high value communities in that immediate area, yet having some acreage or space to breathe and move about within that same immediate area. This makes this location, in my opinion, a valuable place to live and raise a family. I believe that bringing Habitat for Humanity homes in this area will bring down the value of any future homes built in this location. Page 67 September 20, 2007 Secondly, my intention is to eventually build my retirement home in this area, precisely because of the closed-in location I previously mentioned, with the size of the lot, again to move about. With the Habitat for Humanity project that's as presented, this will most likely -- I will most likely, that is, not build my retirement home in this location, but rather I would most likely sell my property and, again, I feel that the value of the property will certainly decrease because of this project on hand. I believe with so much land available in Collier County to place a Habitat for Humanity project in any other location will most likely benefit more the individuals that will utilize the services of Habitat for Humanity. And I certainly urge the commissioners to not allow the construction of the Habitat homes in this site, but to seek another location for said project, which, by the way, I will personally commit to any -- my time and effort to help and volunteer to build such project, as I have previously. I thank you much for your time this morning. CHAIRMAN STRAIN: Thank you. Mr. Murray. COMMISSIONER MURRAY: Sir, you mentioned you thought that the value of your property might decline. Where -- can you see the map that's up on that television screen? MR. CRUZ: Yes, sir. COMMISSIONER MURRAY: Could you possibly indicate to us where you have your residence. You can use your pen to point to it UNIDENTIFIED SPEAKER: He don't even know where he's at. CHAIRMAN STRAIN: Hey, sir, we can't have any outbursts from the community. MR. CRUZ: If this is Immokalee Road-- CHAIRMAN STRAIN: Sir, you're going to need the microphone if you're trying to -- Ray. Page 68 September 20, 2007 MR. CRUZ: Okay, I can see that this is Immokalee Road, W oodcrest coming south, and this is Acremaker Road. My property is -- butts against the Crystal Lake. So I would think it would be located someplace around here, if you can see where my pen is -- COMMISSIONER MURRAY: I do -- MR. CRUZ: -- it would be here. COMMISSIONER MURRAY: I do. Thank you. MR. CRUZ: So it would be in this location, sir. COMMISSIONER MURRAY: Thank you. Just, now, do you have a reason why you believe your property would decline in value? Crystal Lake there, those folks are -- those are what, single- family homes there? MR. CRUZ: I believe they're more trailers, mobile homes. COMMISSIONER MURRAY: All right. MR. CRUZ: RV's. COMMISSIONER MURRAY: I was just trying to understand. Because I'm not sure that that's been proven to be the case. Perhaps in some cases it is. I'm just wondering -- and I now understand where you live, and I'll take that into consideration, thank you. MR. CRUZ: The reason I think that it would lower in value, precisely because again, the Acremaker- W oodcrest location is so central with other high value communities in the area, that that location would serve to build more high scale homes because, again, of its location, rather than the type of -- the lower income homes that would be built through Habitat for Humanity, which, again, I'm aware because I've been in them, I've actually grabbed hammers and I've worked in them, so -- and obviously you can see them as you drive by in many of the communities. So I think that for this type of community, this area where it's located would better serve the county at large to have the type of homes that are more available within -- not available but that are already within the area, rather than a lower income home in that Page 69 September 20, 2007 immediate location, again, because of its proximity to everything else. COMMISSIONER MURRAY: Thank you very much. CHAIRMAN STRAIN: Any other speakers, Ray? MR. BELLOWS: No other speakers. CHAIRMAN STRAIN: With that, we will close the public hearing -- is there any rebuttal by -- before we close, is there any rebuttal by the applicant? MR. NADEAU: Thank you, Commissioner, no. MR. BAKER: Can I say something, sir? CHAIRMAN STRAIN: Sir, did you file -- MR. BAKER: I didn't file nothing -- CHAIRMAN STRAIN: Okay, come up to the speaker. Yes, you can speak. I'll need your name for the record and whatever information. Then you need to be sworn in. (Speaker was duly sworn.) MR. BAKER: My name is Steve Baker. Okay, I'm going to tell you -- I've been up here since '77. Coming down W oodcrest Drive, the water gets over your waist. I think it's a good idea because they're going to pave the road and such and then they still got adequate housing for later, you know -- or property for later. And this gentleman doesn't even live out there. He has a rental out there. And I look forward to this paving our road. You know, I lived out there all my life, you know. I think it's a great idea. And I've always said so. Because you got to take a buggy in and out of there sometimes to get down to our houses, which make the bend there. And this gentleman's owned his place for what, two years? Plus his house is -- I don't get what he's saying -- CHAIRMAN STRAIN: Sir, you'll have to focus on the project. MR. BAKER: I understand that. He lives in -- that place he's got is a -- used to be an old chicken coop. He stuccoed it and painted it. CHAIRMAN STRAIN: Sir, the object of the meeting is to Page 70 September 20, 2007 understand the proj ect -- MR. BAKER: I understand -- CHAIRMAN STRAIN: Not his house. MR. BAKER: I don't care -- CHAIRMAN STRAIN: We do. MR. BAKER: Well, I'm just telling you. I want that big road -- I wanted this project to go through. And then later on if they want to put more in, so be it, you know. CHAIRMAN STRAIN: We understand your point, you're in favor of the project, right? MR. BAKER: Yes, sir, I am. CHAIRMAN STRAIN: Okay. Thank you very much. Any other questions? Ms. Caron. COMMISSIONER CARON: I just had one. And usually Mr. Adelstein brings this up. But on these Habitat homes, are there going to be garages? MR. NADEAU: It is intended to have garages. And I'm not certain, but I believe it's identified also in the affordable housing density bonus agreement as the improvements that would be done to the property. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: No other speakers? With that we will close the public hearing and entertain a motion. Mr. Schiffer. COMMISSIONER SCHIFFER: I make a motion to forward PUDZ-2005-AR-7883 to the commission with a recommendation of approval based on the addition of deviation one of the variance on the cul-de-sac length. Mark, you had that they look into the ability to bring in utilities Page 71 September 20, 2007 through the fire department access on the cul-de-sac. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: And I'm sure you'll have more. CHAIRMAN STRAIN: Actually -- well, let's get a second first. COMMISSIONER ADELSTEIN: I'll second. CHAIRMAN STRAIN: Seconded by Mr. Adelstein, okay. And as far as more -- Brad, I wasn't going to add more, because they were minor clean-up to the document that we normally have staff incorporate as it moves forward, since there was no objections from this body as we discussed it. So I think that's the only stipulation at this point that's needed. Is there any other discussion from the other panel members? (No response.) CHAIRMAN STRAIN: Hearing none, I'll call for the motion. 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 MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries nine to zero. MR. NADEAU: Thank you, Commissioners. Item #8C PETITION: V A-2007-AR-11577 Page 72 September 20, 2007 CHAIRMAN STRAIN: Next item on today's agenda is Petition V A-2007-AR-11577. It's B F Fort Myers, Inc. It's for a variance for the outparcel presently improved with a Wendy's Restaurant on the corner of Immokalee Road and Airport. All those wishing to participate in this variance, please rise to be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRMAN STRAIN: Disclosures on the part of the Planning Commission? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I had a brief discussion with Mr. Y ovanovich earlier this morning here. CHAIRMAN STRAIN: And I had a discussion with Mr. Mulhere, and it basically centered around the setbacks from the roadway and everything else. Thank you. Go ahead, sir. MR. MULHERE: Thank you, and good morning. For the record, Bob Mulhere with RW A, here this morning on behalf of the applicant as well as the County Attorney's office. With me here this morning is Heidi Ashton from the County Attorney's office. I have an exhibit on the visualizer which shows you the subject property in an aerial perspective. To the north is Immokalee Road. To the east of the structure is Airport Road. Over the years there have been a couple of different takes on this property to widen Airport Road and also to widen Immokalee Road. This particular take is 15 feet along the northern boundary -- along the northern boundary along Immokalee Road. This is within the Greentree PUD -- Greentree Plaza PUD, which has somewhat unique language as it relates to front yard setbacks. Perhaps you saw in the staff report. Basically the front yard setback for the commercial section of the PUD is 15 feet, and then it has a little additional phrase that says within which no parking shall be located. Page 73 September 20, 2007 And we have way more than 15 feet even after the take, as measured to the structure. But there are a couple of parking spaces that will then encroach into that 15 feet. Kind of a unique way to measure a setback. You don't see that really anymore. Usually setbacks are measured from structures and they don't apply to things like parking spaces. Typically if you want to have, you know, a green area, then that's covered by the buffer. The PUD is silent on the landscape buffer, and in this location based on Immokalee Road there would be a 20-foot landscape buffer. I just want to put another picture on the visualizer to give you a better idea. This picture here shows the construction underway, and shows the landscape buffer that's looking from west to east along Immokalee Road. That was taken some time ago, they may be further along in the construction. You can see the existing trees. The area of the take, the l5 feet, does not incorporate any of the landscape improvements, any of the planting materials. It's just a grassed area. And now it's being taken by the county for Airport Road. There will still be a significant grassed area as a sloped area running off the sidewalk. And so what we're asking for is a variance from the required setback in the PUD, which is 15 feet within which no parking may be located. And I'll show you on the exhibit, there are two parking spaces that encroach into that area as close as 11 feet. And we're asking for a reduction from the landscape buffer from the required 20 feet down to 11 feet. Now, how did we get to this point? The county in its aggressive road building program deals with property owners. Particularly it's difficult to deal with property owners where there are commercial improvements on the property. It's obviously a lot easier if you have vacant land. You pay for the cost of the land and off you go. But if there are improvements, another element enters into the discussion, Page 74 September 20, 2007 and that is business damages. Now obviously the county's perspective is to minimize the potential for business damages associated with the take and balance that process against the public welfare by the landscape buffer. In this case the county entered into a mediated settlement agreement with the property owner wherein, and I'm paraphrasing, basically a mediated settlement agreement said as long as we can continue with what we have here, and we won't be found legal nonconforming, and even if we make some improvements to the site, we won't have to go back out and replace the landscape buffer or move our parking spaces, lose parking spaces to be able to meet the code requirement. So we looked at the LDC requirements as it relates to governing a situation such as this. And in section 1.04.04.2.B, which is reduction of required site design requirements, that's the title of that section, and it deals with how you treat a property in a take situation. And it says, other site-related legal nonconformities, including those rendered more nonconforming as a result of acquisition for public use, such as, but not limited to, stormwater management, landscaping or buffers, preserves, on- or off-site parking, will be deemed legally nonconforming. And all such resulting nonconformities may be allowed to remain so nonconforming -- and here's the phrase, unless or until the remaining lot or yard is subsequently recreated or redeveloped, at which time you have to bring it into conformance. Well, recreated is fairly easy to understand, you're replatting it or in some way changing the boundaries of the parcel in a legal way. But redevelopment is a little less clear to understand. And from the property owner's perspective, you know, ifhe added an addition in an area that wouldn't impact, you know, the area of the take, and he still had plenty of parking, could the county guarantee he would be able to do that without taking having to go out and take out parking spaces and add landscape. Page 75 September 20, 2007 And so we discussed it with staff and we actually asked for their opinion. And the opinion was no, it's really somewhat unclear and we'll have to see what the situation is at the time of redevelopment whether or not you would have to meet the code. Or alternatively you can come in and ask for a variance. So that's what we're doing. We put some conditions on our request that I think would address anyone's concerns as it relates to this, where we agreed that if the parcel shape was changed, if we re- platted, we would understand that we would be then subject to the full provisions of the code. And obviously if the structure is completely destroyed and you're starting from scratch, you meet the provisions of the code. The potential for damages, absent some way to reasonably address the property owner's concerns, are significant. They're -- they could be in the hundreds of thousands of dollars in terms of business damages. This resolves the issue at very little cost to the taxpayer, relatively speaking, and we have agreed to, at staffs request, replant the entire site to bring it up to the current landscape code. So within that 11 feet, we will replace all of the landscaping that's required to be replaced, as well as the rest of the site. We'll bring it into compliance, we'll check the irrigation, make sure it's functional, have an inspection. I think that more or less summarizes the situation. There was one stipulation that we wanted to address. Originally when the Wendy's was constructed, there was a condition that there be a cross-parking easement granted providing seven additional parking spaces beyond those within the shopping center, beyond those located immediately on the Wendy's parcel. And we at first were unable to find evidence of that easement. And so stipulation number three in the staff report, I think it's number three, requires us to go ahead and create an easement within a certain period of time, actually the property owner to create an easement Page 76 September 20, 2007 within a certain period of time. However -- 180 days -- however, we subsequently, in communication with the property owner, we subsequently did locate that cross-parking easement. I have copies here I can put in the record, I can hand it out, whatever is your pleasure. It doesn't limit it to seven spaces. Basically there's a cross-access, a cross-parking easement so that all of the parking is shared, and that really addresses that issue. So we would ask that condition number three be removed. And I'll go ahead and -- I think you have copies of this, right, Ray? If not, I'll put that into public record. Do you want me to hand these out? CHAIRMAN STRAIN: Yes. MR. MULHERE: I think that the need for a property owner or for the county to take the initiative to come in and ask for a variance in this type of condition could be eliminated if the language was clearer in the code. And that's really a separate issue from this variance. But I, simply, for purposes of discussion, I think at some point that's something that could be looked at. Because I think the intent was not to punish a property owner when you take his property away. And we've gone, I think, above and beyond the call of duty in terms of bringing the site back into reasonable conformance. And I think that language just probably needs to be clarified. CHAIRMAN STRAIN: Any questions of the applicant? Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, doesn't the county give you damages when they're taking like this? MR. MULHERE: Yeah, the county pays not only the value, market value of the land that they take, but when it's a business entity, there's an iterative process of the property owner and the county back and forth as to what business damages, you know, there's a value to a parking space, there's a value to the sign, there's a value to the landscaping. And this mediated settlement that the county entered Page 77 September 20,2007 into with this property owner minimizes and caps those business damages. COMMISSIONER KOLFLA T: Couldn't these damages include the fees necessary for coming in for a variance? MR. MULHERE: The property owner is not paying for that. He's not paying for these fees, the county is paying for the fees. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I have only one question. And it indicates here for landscaping within 180 days, why would we need 180 days before the landscaping is -- MR. MULHERE: Well, I mean, you got -- the county will have to go out and get a contractor, coordinate with the property owner to get any permits that might be necessary. There will be some sort of permit necessary, most likely to make sure that the irrigation -- I think the irrigation end of it. So we do have a design -- by the way, Joe Delate of the county prepared an upgraded landscape plan as part of the application. Staff reviewed it, agreed that that addressed bringing the site up into compliance. We'll use that plan. But just, I didn't want -- 90 days, I didn't want for put the pressure on the county to go out and get a contractor. I mean, 180 days, they're still constructing out there. So, to me 180 days was a reasonable period of time. COMMISSIONER MURRAY: Good answer, then. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Okay. Is there a staff report? MR. BROWN: Good morning, Commissioners. Willie Brown, Principal Planner in the Department of Zoning and Land Development Review. The findings and conclusions of staff for this petitioner are documented in the staff report. Very briefly, staff is recommending Page 78 September 20, 2007 approval subject to one, that the attached conditions of approval with the exception of condition number three, which can be eliminated. Again, an executed parking agreement with the Greentree Shopping Center has been provided. And two, section 9.04.03.D and F, entitled Criteria for Variances, these are findings the Planning Commission shall consider in making a determination. D states, the variance if granted will be the minimum variance that will make possible the reasonable use of the land, building or structure and which promotes standards of health safety and welfare. And F, granting the variance will be in harmony with the intent and purpose of the LDC and not be injurious to the neighborhood or (unintelligible) -- otherwise detrimental to the public welfare. Lastly, no letters of objection have been received from neighboring property owners. Last, staff is recommending approval of this variance petition. CHAIRMAN STRAIN: Any questions of staff? (No response.) CHAIRMAN STRAIN: Well, that's an easy one. Thank you. Are there any public speakers, Ray? MR. BELLOWS: No public -- oh, no, we do have one -- no, no public. CHAIRMAN STRAIN: I'm sure Mr. Mulhere doesn't want to rebut anything, because it was all positive. So with that we'll close the public hearing and entertain a motion. COMMISSIONER VIGLIOTTI: I-- CHAIRMAN STRAIN: Don't all rush. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'd like to make a recommendation for approval and remove item three from the deviations. CHAIRMAN STRAIN: Is there a second? COMMISSIONER ADELSTEIN: Second. Page 79 September 20, 2007 CHAIRMAN STRAIN: Seconded by Commissioner Adelstein. Discussion? (No response.) CHAIRMAN STRAIN: 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 MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries nine to zero. Thank you. Item #8D PETITION: V A-2007-AR-11625 Next up is petition -- it's a variance, Petition 2007-AR-11625, Terence W. Conroy, beneficiary of William Hogan trustee for Southport Cove Nominee Trust. It's a Lely Barefoot Beach PUD. All those wishing to testify on behalf of this application, please rise to be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRMAN STRAIN: Any disclosures on the part of the Planning Commission? COMMISSIONER SCHIFFER: I have a question. CHAIRMAN STRAIN: Disclosure or question? Page 80 September 20, 2007 COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: Let's get disclosures. Mr. Murray. COMMISSIONER MURRAY: Yes, I had a conversation with Mr. Y ovanovich. COMMISSIONER TUFF: I played voice mail tape with his secretary . CHAIRMAN STRAIN: I had a conversation with Mr. Y ovanovich about the variance request versus the language in an older version of the PUD that I found. COMMISSIONER CARON: As did 1. CHAIRMAN STRAIN: And Ms. Caron had a conversation. Anybody else? Mr. Vigliotti. COMMISSIONER VIGLIOTTI: I spoke with Mr. Y ovanovich this morning regarding this issue. CHAIRMAN STRAIN: Mr. Schiffer, you had a question? COMMISSIONER SCHIFFER: The question I have is, why is this considered a waterfront lot? Why is this not -- CHAIRMAN STRAIN: Mr. Schiffer, before we go to that part of the -- let him make his presentation first. COMMISSIONER SCHIFFER: Well, if it's not a waterfront lot then -- CHAIRMAN STRAIN: Well, you're not in the minority in that decision -- there's a pile of evidence that would support your argument wholeheartedly. COMMISSIONER SCHIFFER: Then why are we here? CHAIRMAN STRAIN: I think that's what we have to find out. I haven't been able to figure it out. Go ahead, Mr. Y ovanovich. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich on behalf of the petitioner. With me is Bob Lockhart, Page 81 September 20, 2007 who also is a co-petitioner. I was going to get right into that issue, because I'm not so sure I should be here either. The property is located at 80 Southport Cove within the Lely Barefoot Beach PUD. We've put up a couple of aerials for you to look at, and you will see the particular lot that we're discussing is right here on this aerial. And this is the alleged waterfront. If you look at the overall -- this is a portion of the overall Lely Barefoot beach. And I think it's important that we put in context what was really meant to be waterfront under this PUD document. And you'll see the PUD fronts not only the Gulfbut also fronts the bay. And that's what we believe is the intent of the definition of waterfront under the PUD document. And what you have to do is you have to go back to the original PUD, which was Ordinance No. 77-48. And I will admit that this is a bit of a jigsaw puzzle and you have to -- it's not a clear path to what the right answer is. But in my opinion, Ordinance No. 77-48, which by the way has never been repealed, so it's still in effect, and it still applies to the property and has to be reconciled with later amendments, which I think creates some of the confusion, is when you look at Section 5.D of the original ordinance, it defines common areas. (Mr. Kolflat has left the room.) MR. YOV ANOVICH: And what 5.D says is a manmade lake is a common area. And why is that important? Because the original PUD had a setback from common areas and had a setback from waterfront, and they were not the same. So if you fronted a common area, which was defined in the original ordinance to be a manmade lake, you had a 10- foot setback at the time. If you fronted waterfront, you had a larger setback, and that was, I believe, 25 feet at the time. So as the PUD evolved, we're at the ordinance that we're talking about right now, which is 85-83, and you have the term waterfront in Page 82 September 20, 2007 there. Admittedly it's not the, clearly, best defined definition of waterfront, but if you put it in the context of when this PUD came through originally, I think it's pretty clear that you'll see waterfront meant the Gulf or the bay, not a manmade lake. So we are -- in my opinion, we are not, quote, waterfront and therefore don't have to have a 30- foot setback for the pool or the home from the side yard there. Because in this particular case, the water's on the side, not on the rear where you would normally find it in most of your subdivisions that are designed. So in my opinion the side yard setback which would apply, which would be seven-and-a-halffeet or one-and-a-halfthe height of the structure -- the structure's the pool cage, the pool cage would be 20- foot tall -- so the setback to the pool cage would be 10 feet, which is exactly how we've designed our requested improvement. Now, I don't think I'm the only one who believes that's the correct interpretation. And I think if you look, you look around the lake that we're now being told is waterfront, I think if you were to put the scale to most of these you would see -- the only one I'm pretty sure definitely meets the 30-foot requirement is this aqua-colored roof right now. So either staff got it wrong all the other times by not applying the waterfront standard there, and I don't think that's the right answer, I think they got it right that this is not waterfront and they applied the rear setback standard for those homes. I don't think this is the only time they've gotten it right. They've clearly changed an opinion, because in 2002 there was a variance for this lot. And because this lot's a corner lot, it can't -- it has -- it basically has two fronts and two sides. And in that variance they interpreted this to be a side yard. And they said the side yard standard would be seven-and-a-halffeet or one-half the height of the structure. In that particular case the pool cage was 24 feet, the pool was built closer than the required 12 feet, so they came in for an Page 83 September 20, 2007 after-the-fact variance to address that problem. So they were granted the variance. Staff recognized that it was a unique lot. It was a site-related hardship because it was a trapezoid lot. It went through the Planning Commission, the Planning Commission granted the variance, recommended approval of the variance 80 -- and the Board of County Commissioners ultimately approved it. So we believe when they looked at this variance, they determined that this lot was not waterfront for purposes under the PUD. Now, I think staffs going to tell you they made a mistake. I don't think they made a mistake. Because if they made a mistake, they made a mistake here, probably here. You've got some homes, let alone structures that may be within that 30-foot setback from, quote, waterfront. So we think they got it right in 2002 and they got it right for all the other homes and they got it wrong for us, that we should have a setback of seven-and-a-half feet or one-half the height of the structure, whichever is greater, on this particular lot. We went through the variance because staff told us we had to get a variance, so we've come before this commission to ask that you recommend to the Board of County Commissioners that they do approve the variance. We think that we do have -- we have met the criteria. And if you go back and you look and you compare -- and rarely can you compare two variances, one on another, but sometimes you do have similarly situated properties that have the same issues. This is a side yard setback that had to be 30 feet. We're a side yard setback that had to be 30 feet. This is trapezial, this is trapezial. Staff determined here that because it was a trapezial site shape that it was unique and there were several other hardships with citing residential structures in the improvements on that type of lot. I don't know why they decided in this case it's not a hardship to do it on this Page 84 September 20, 2007 type of trapezial lot versus the other. Be that as it may, staff, in the other variance, did find that it is a hardship and we believe it is a hardship meeting that criteria. I'm going to go -- I want to go -- because they agree with us on a lot of the criteria, on two they don't. I just want to hit those. Again, I think there are special circumstances. You now have an unusual situation where you have a lake on the side of a home versus the rear. Most of the times they're on the rear. This is an unusual -- and you have buildings that are homes that are greatly separated by the width of the lake. Usually the side yard setback is to make sure you don't have structures too close to each other. There's clearly not that issue on this particular piece of property. I think that makes it a unique circumstance. To my knowledge, we don't have any objectors. I haven't seen any letters of objection to this. We've sent out all the required letters. We do think that there's a hardship. We think we're being treated differently than all the others around there. Everybody else didn't have to meet a 30- foot waterfront setback, and now we're being told that we have to meet the 30-foot front yard setback, when it appears that not all of the other lots around this lake had to meet that. We're not asking for a special benefit, we're being asked to be treated just like everybody else who has built around that lake. We're not a waterfront lot by the setbacks, seven-and-a-half feet or one-half the height of the structure. Staff agrees that the variance would be in harmony with the PUD. We're not hurting the neighborhood. Staff agrees there will be no impact to the lake or the view of the lake by the granting of this. Staff agrees that this variance is consistent with the Growth Management Plan. And in fact, if you look at your staff conclusions, your staff agrees there's a site-related hardship. That was in their conclusion. But they said it's not a land-related hardship. Page 85 September 20, 2007 Now, I don't know what the difference between a site and land is, because I kind of think they're the same, because we're talking about a particular site that happens to be land. But let's assume there is a difference. There's nothing in the variance criteria that says you have to have a land-related hardship. It just says you have an undue hardship. So I guess a site-related hardship would qualify as a hardship, based on their own criteria. So what we believe is, one, we shouldn't be here. Now-- because I don't think we have to because I don't think we're waterfront. I've debated with staff whether it's waterfront. They believe that we didn't provide them enough analysis to have them change their mind that it is waterfront. I frankly thought that that analysis happened in 2002 when there was a determination that that other lot was not waterfront because the PUD was no different. The waterfront requirement was there all along. I think we just have a difference of opinion. Staff may want to reevaluate that, I don't know. But even if you want to apply the waterfront standard to us, I think we met the criteria for a variance and we're requesting a variance so that we can have a pool in our side yard, take advantage of that lake as an amenity for that pool like anybody else who has the lake in the rear yard where you normally find a house with a pool fronting on that lake. We'd like to take advantage of that. This is a unique circumstance, and with that, that's my very brief presentation on the issues that we bring before you. We'll answer any specific questions you may have. Oh, I want to show one other exhibit, if I can. On the visualizer, this is the existing home. And as you'll notice on the side yard, there's already an existing brick pavers area with a fence that extends out into that area. We've drawn in for your benefit what the pool cage would look like. Basically you can see we're only asking to extend another four feet from what's already in that area. Instead of having a paver area that we use and enjoy, we have a pool Page 86 September 20, 2007 that we use and enjoy. And with that, I will end my presentation and answer any specific questions you may have of me or Bob. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: And Rich, you have a lot of legal background. How could you have a waterfront yard when the water edge is on an adjoining property? Wouldn't -- this would be close to a good argument if the water was actually on your lot, but it's not. Essentially you have a lot next to a lot with a pond and therefore they're considering that ponds' edge your waterfront? MR. YOV ANOVICH: I guess the argument is if! could see it, I'm waterfront. And I can tell you, it's an interesting point you bring up. When I lived in Berkshire Lakes, I had a water view lot. What did that mean? My lot didn't physically touch the water, it was my -- I was looking over a little piece of my neighbor's yard. And when they planted trees to block my lake view, I didn't have any legal argument to say I'm waterfront, you're blocking my waterfront view. I think it's similar here. I don't physically have the lake on my property, and I think you bring up an excellent point. So I don't know that I'm, quote, waterfront under that circumstance either. That's an additional argument for what I think was originally intended all along with this PUD and the history in 1977 and as it's moved forward. COMMISSIONER SCHIFFER: And Mr. Chairman, the reason I brought it up earlier, I think it would be nice -- I mean, it's hard to even listen to Rich, because I can't see any way how this could be a waterfront lot. The only place this would be a waterfront lot is on a real estate brochure somewhere, but that's about it. Thank you. CHAIRMAN STRAIN: Any other questions? Mr. Murray? COMMISSIONER MURRAY: Yeah, in your Book 20 on page 181, I'll read it. It says, variances or waivers to (unintelligible) are valid only if approved in writing by the Florida Department of Natural Page 87 September 20, 2007 Resources or other state agencies. Would that have been pertaining to this in the first instance? MR. YOV ANOVICH: I don't know what page you're reading from. I don't have your -- COMMISSIONER MURRAY: Zero 20 of 181. That's within your -- I think that's within your book. MR. YOV ANOVICH: Can you -- zero 20? COMMISSIONER MURRAY: Yeah. I'm just wondering whether or not that organization even still exists and whether it's pertinent. MR. YOV ANOVICH: I don't believe we have any issues with any state agencies as to the location of our pool. CHAIRMAN STRAIN: Well, Richard, the PUD that splits the Lely Barefoot Beach up into different categories, you have a section of it that is west of the main road that is coastal construction. And you have some on the east side which is where you're at -- MR. YOV ANOVICH: We're on the east-- CHAIRMAN STRAIN: -- that's more than likely the west side's application, because you don't have a coastal construction setback line on the east side. COMMISSIONER MURRAY: So it doesn't apply. MR. YOV ANOVICH: Right. I wasn't sure what page you were referring to. Thank you, Mr. Strain. COMMISSIONER MURRAY: I'm not going to bother asking any questions here -- but I agree with Mr. Schiffer, that was my reaction, too. I live in a condominium and on the side of my home, probably 20 feet away, there's an excavated lake. So I suddenly have a tremendous value of property change there. I'm on waterfront and I didn't know it. CHAIRMAN STRAIN: Richard, I listened to your discussion, and I, as you know in my discussions with you, I already brought up some of the issues that you brought up today. So I agree with your Page 88 September 20, 2007 position on this at this point, pending any comments from staff. But I also disagree with one thing you said, and that is staff was concerned with you that you hadn't provided the adequate material that was needed. And your response was that you thought it had already been provided based on the issue of the 2002 variance. Just for the record, I don't think that staff should be obligated to go back and prove your case. I think that you should have done that with every single application. That's my comment on that. Mr. Adelstein, do you have a comment? COMMISSIONER ADELSTEIN: Yeah, I was just questioning, will you have to grant a variance here for your client? I mean, have you got us in a situation where I thought it was, you would be granting him a variance in order to put in this pool. Now, are you saying that that's not necessary? MR. YOV ANOVICH: What I'm telling you is that staff and I disagree. I believe I -- when I met with them in 2006 that I had made a legitimate argument for why this was not waterfront. Not waterfront. But be that as it may, they said you need to come in and ask for a variance. We went with what we believed would be the path of least resistance, believing that this would -- this was a common sense petition, hopefully we would go through, we'd get to the Planning Commission and we would get a recommendation of approval from the Planning Commission. We thought we'd get a recommendation of approval from staff because we thought it was a common sense interpretation and it was a unique lot. We're here with a recommendation of staff for denial. We took what we thought was the most cost effective approach was to go through the variance, and that's why we're here. I can't make staff change their mind, so I have no choice but to be here. Page 89 September 20, 2007 CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Yeah, any variance granted gives special privilege, there's no question about that. And therefore, in that situation, that's what would be happening is he would get a special privilege. And under the circumstances there's no obligation to do it. The one that happened before, prior, was done, they found out that it was actually done already and that they had not measured it properly, that one got away with it. But in this particular situation, the issue is very simple. It is a situation where it will be granted and, if granted in that respect, I think it's wrong. MR. YOV ANOVICH: Well, under your logic, Mr. Adelstein, all variances would be considered as special privileges. The purpose of the variances would deal with unique lots. And under unique lots you say it is okay to reduce a yard standard. We believe this is a unique lot. You have the water on the side. What you're effectively doing is you're treating -- when you have a corner lot, you recognize that it would be unfair to make them have two fronts and a rear, because they would be exaggerated lots. So you apply two fronts and two sides to make it fair. In this particular case you would be -- and you would be providing him with a front or rear and now an exaggerated side because he's waterfront, which you didn't apply to this particular property. This particularly property had front, front, side, side. There's nothing in the PUD that says if you're a corner lot you don't apply the waterfront setback. So we're not asking for any special treatment, we're asking to be treated just like this particular property owner, and the fact that he built the home -- the pool in the wrong location doesn't give him any special privilege. We're asking for the same treatment. So I think we do meet the criteria if we have to go through this Page 90 September 20, 2007 process in the first place. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Thank you, Richard. And we have staff. Ray, are there any speakers? MR. BELLOWS: No one registered, other than the applicant, Mr. Lockhart. MS. GUNDLACH: Good morning, Commissioners, I'm Nancy Gundlach, Principal Planner for the Zoning and Land Development Review Department. And our information is based on a 30-foot waterfront setback, as shown in the PUD. I'll put it on the viz -- it's item C, it says waterfront yards other than Gulf front, 30 feet or one-half the building height, whichever is greater. In this case, it's 30 feet. And just for your information, we've had several staff review these setbacks in the past. There was a zoning verification letter issued for this particular lot back in 1999 stating that this particular waterfront setback was 30 feet. And by definition waterfront in the LDC does include lakes. And typically, lots don't go into the water body, they are adjacent to the lake. So that is what this variance is based upon, this 30- foot setback. CHAIRMAN STRAIN: Are there any questions of staff? Let's start with Mr. Vigliotti, then Mr. Murray, then Mr. Schiffer, then me. COMMISSIONER VIGLIOTTI: How did the existing lots and houses, how were they affected? Were they legal non-conforming -- or how do they fall into play? MS. GUNDLACH: The focus of this particular variance was for this particular lot, lot No. 42. As -- in regards to the other variance that was issued across the lake, it's difficult for me to stand here and say this, but it appears it was issued in error, and I can't stand here and Page 91 September 20, 2007 repeat an error on another lot. COMMISSIONER VIGLIOTTI: So you're standing by the fact that this it is actually waterfront property. MS. GUNDLACH: Correct. CHAIRMAN STRAIN: Mr. Murray, then Mr. Schiffer, then Ms. Caron. COMMISSIONER MURRAY: I know this is an extreme -- the question is extreme. Nevertheless, what would happen -- how would we feel if that waterfront lot lost all of its water? Would that still be waterfront? Suppose it dried up, suppose there was a hole, all the water went away, what would we be looking at then? MR. BELLOWS: For the record, Ray Bellows. This particular lake is in a subdivision that's platted as a water management lake facility. COMMISSIONER MURRAY: It was created? MS. GUNDLACH: It's a manmade lake. COMMISSIONER MURRAY: But you didn't answer my question, what would happen if all the water went away, would it still be waterfront? So you're saying even if it was dry as a bone, it would be waterfront. MR. BELLOWS: Yes. In this case it is platted for that use. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah. Nancy, or maybe Susan, how can you determine a yard or a setback is a waterfront yard when the edge of the water isn't on your property? MR. BELLOWS: For the record, Ray Bellows. Gulffront frontage would have the same situation as beach. You know, the beach is separate and adjacent, the water doesn't run up to the waterline on beachfront or Gulf front property. Another reason staff determined that this was waterfront property is if you look at the language in the PUD, it did away with the Page 92 September 20, 2007 previous definition of common area. Only when it applies to common areas with Gulf frontage. So therefore, that setback requirement disappears. We also talked about Gulf front setbacks, separate waterfront frontage with Gulf front. And then it says waterfront yards other than Gulf. What other water is there in this PUD but lakes. So it seems to be -- COMMISSIONER SCHIFFER: No, there's the -- there's all the MR. BELLOWS: Well, the bay, yeah. COMMISSIONER SCHIFFER: And Ray, one thing in response to that is that it's pretty clear that this isn't a Gulf front property. The setback you're referring to is for other than Gulf front property. So the problem you have of the fact that the citizens own the beach in front of that doesn't apply to this lot. So if you're interpreting that somebody who lives on the Gulf, yes, there is property he doesn't own between him and the water's edge. I mean, this is a totally different situation. MS. GUNDLACH: Commissioner, just keep in mind that we're standing on the fact that the LDC defines waterfront to include manmade lakes. COMMISSIONER SCHIFFER: But your property isn't on the waterfront. That's my problem. That's the neighbor's property. He's the guy with the water. And calling this a lake is giving it a lot of credit, too. But my point is that if this property's edge was in the water, maybe we could have a conversation here, but the fact that it's totally on the neighboring property, the edge of a pond, that that would trigger what's considered waterfront, when you're in a development with tons of waterfront properties and it's obvious what they meant when they wrote this clause. CHAIRMAN STRAIN: Mr. Schiffer, I think we've all Page 93 September 20, 2007 understood your point, and I know -- but I don't know if -- COMMISSIONER SCHIFFER: But I haven't heard an answer yet. How can you determine it waterfront based on the neighboring property? CHAIRMAN STRAIN: Go ahead, Mr. Schmitt. MR. SCHMITT: Mr. Chairman, I just kind of want to figure out where we're going here, because we're now debating an issue that the applicant could have come in to zoning and asked for an official interpretation as to the application of the ordinance. They did not do that. They came in for a variance. Now, if we want to discuss that, are we not, no longer going to discuss the variance? Because I'm trying to figure out what we're here discussing. I understand your point, Commissioner, but if we want to go down that road we're debating an official interpretation issue, and certainly that -- we have to act on this variance. If they want to go the 01 route, they would have to come back in and apply for an 01 and we could deal with that through an official interpretation. I-- CHAIRMAN STRAIN: Joe, I think that this board has a right to explore any concerns it has, and I think a legitimate concern is how we got here today. Now, whether we delve into that and spend most of the meeting on it, I agree with you, we shouldn't be doing that. But I think Mr. Schiffer made a good point. Obviously, I don't think there's going to be an answer forthcoming from staff on that issue without some further deliberation by them privately through another request. So let's -- I don't know if we can answer that today and I don't want to belabor that. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: Let me quick answer to Joe. Joe, by me accepting this as a variance I would have to acknowledge Page 94 September 20, 2007 that there's a need for a variance. And I don't think there is. The other question I have is that if you are so concerned about the water's edge, how come you're not measuring from it like you would if it was on your property? MS. ISTENES: Susan Istenes, Zoning Director. I'm standing up here mostly to answer your questions, because I think, Commissioner, you indicated that the board was interested in some history, and there was some history as far as the actual interpretation or application of the setbacks that I don't think Nancy expressed. And kind of how we got where we are today to help fill in a little bit, I thought maybe I would provide that for you. Actually, back in, I think it was '99, I think Nancy mentioned the -- I think it was the property owner came in and did request a zoning verification letter. Now, a zoning verification letter is not the same thing as an official interpretation. I would call it somewhat of a hybrid. It is appeal able to the Board of Zoning Adjustment and Appeals. But it essentially asked what, given the PUD regulations, what are the setback requirements for this home. And it was determined then that based on the regulations in the PUD and the language of the PUD, that the waterfront setback rules would apply in this case. Later -- and I tend to lose track of time, but I think this has probably been going on for at least a year-and-a-half, Mr. Lockhart came in and proceeded to kind of debate that with several staff members, I believe, including myself, and, I believe, including Joe. We certainly -- whenever somebody questions something, I'm always happy to kind of revisit the issue, especially if they have new information for us, which I don't recollect there being any new information. But nevertheless, the zoning verification letter was done by my staff. I personally investigated it and I did not find anything to the contrary that the original staff did not find and put in that letter. Page 95 September 20, 2007 We also had another individual staff member look at this when Nancy finally got the application for the variance and still came to the same conclusions. We did present the option of an official interpretation as a way to decide -- or as a way for the applicant, rather than apply for a variance, to come in and debate the issue further. I guess they opted not to do that and applied for the variance. And that's kind of why we are here today. One thing I will point out Rich put on the record which I disagree with, is that he -- and I spoke to him in the hall prior just trying to get a feel for his argument, because I suspected he would argue the interpretation more rather than the variance. He said that the Ordinance 77-whatever was never repealed. And I would disagree with that. Actually Ordinance 85-21 rezoned the property from PUD to PUD. And a PUD to PUD rezone is essentially a repeal of the old regulations and adoption of the new. So I would suggest that 77 was repealed. I think when -- and I don't want to get into our discussion in the hallway, but anyway, I would just put that for the record that I disagree with that. CHAIRMAN STRAIN: And Susan, I might ask you, though, in that comment, that's what concerned me. I read 85-21 and it was a PUD to PUD. But then when you read there were settlement arguments, and there were many, I've got a whole book right here, just of Lely Barefoot Beach's amendments, they refer to 85-21 as an amendment to 77-48 and they were all re-adopted by the board numerous times. That's what led me to the conclusion that maybe we ought to be looking at 77-48 for the language that was not struck and changed in 85-21 because that language then as an amendment would still be intact. MS. ISTENES: Well, I think that's what Rich -- again, I wasn't Page 96 September 20, 2007 going to talk about our argument in the hall, but since you brought it up -- not argument, discussion, we were discussing. I think that was part of Rich's argument. And I said well, that's interesting because, you know, during this whole course of research, that really, quite frankly, wasn't brought to our attention, which is fine. But I thought -- my comment to him was you may have a valid argument; however, again, the place to argue that is through an 01 and not through the variance. What do you -- you know, kind of what do you want to do? And he indicated he was going to proceed with the vanance. So yeah, and then that, sitting back there after he made that argument, I went back through 85-21 and noticed that this was PUD to PUD. My point is that just simply raises the question, as you pointed out. CHAIRMAN STRAIN: Right. And, I mean, it's a confusing mess, to be honest with you, the way Lely Barefoot Beach was done. And what happens when you go back to 77-48 and you change actually the block designations to the new ones so you got to track it back. But through that process -- my interpretation -- not my -- I shouldn't say interpretation, my understanding of the setback was only 10 feet by 77-48 because there was a clause in 77-48 and it was item D of the one of the sections that says manmade lakes are common areas. (Commissioner Kolflat has returned to the room.) CHAIRMAN STRAIN: And if they're common areas the setback from a common area in the prior residential section was 10 feet. And that's how -- that was a concern that I found. MS.ISTENES: Rich pointed that out to me, but like I said, our application was -- we were just going by the current ordinance, not melding the two. And then, again, just as I said, I still question whether or not we can do that. Page 97 September 20, 2007 CHAIRMAN STRAIN: Ms. Caron had a question. MS.ISTENES: We're not going to answer that here. COMMISSIONER CARON: I had a comment. And I'm not sure how a water management area could be considered anything other than common area. MS.ISTENES: I think we might be mixing apples and oranges a little bit, only because with that in this case we have a platted lake and we have language in the LDC that basically says even manmade lakes or water bodies, whether they're manmade or natural-made are waterfront. And I'm taking a very literal -- I will tell you I take very liberal interpretation of the code, and it says all other waterfront yards other than Gulf Front (unintelligible). So to me water is water, whether it was created by man or otherwise. And given the fact that it was a platted lake, it further bolsters that. CHAIRMAN STRAIN: Mr. Schiffer, I'm sorry-- COMMISSIONER SCHIFFER: Susan kind of stepped on my question. Since you're so concerned about the setback, how come you're not measuring it from the water's edge, which would be -- MS. ISTENES: Setbacks are measured from property lines. COMMISSIONER SCHIFFER: Oh, I know that. This is actually a yard, and we could debate the difference between them. But if you read what it says, it says waterfront yards other than Gulf Front 30 feet or one-half the building height. So you would be measuring it from the water. The reason this is a setback is because the water's on the other guy's property. MS.ISTENES: It's common property. It's everybody's property. COMMISSIONER SCHIFFER: Well, the point is, the edge of the water is not on this man's property. And so why are we not even giving him the benefit of the doubt -- MR. BELLOWS: For the record, Ray Bellows. The LDC defines how setbacks are measured -- from the most Page 98 September 20, 2007 restrictive point. In this case it would be the lot line. There are some cases where the lot line protrudes into the water. You don't measure the setback from the lot line that's in the water. So you go from the most restricted point. So it's a seawall, or mean high water line or lot line. In this case it's the lot line. COMMISSIONER SCHIFFER: And Ray, that's intended to-- all those things described in there are on the owner's lot. This isn't on the owner's lot. Anyway-- CHAIRMAN STRAIN: I was going to say, Mr. Schiffer, it's that same issue. I think -- COMMISSIONER SCHIFFER: Okay-- MS.ISTENES: I'm probably still not understanding your argument, but I would be curious to discuss it with you further off line just so I could. COMMISSIONER SCHIFFER: This is one of things where you feel like you're from Mars, so -- I don't get it. CHAIRMAN STRAIN: Mr. Midney, then Mr. Murray. COMMISSIONER MIDNEY: Yes, since -- it seems to me that since the applicant has requested a variance, he's accepting it as a lake, and I think that's the basis on which we should be thinking about this Issue. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: In terms of waterfront, that being the Gulf and the bay, if there were some problems associated with the bay or the Gulf, blooms, whatever, would all of the property owners on those bayfronts and Gulf fronts, would they be obliged to remedy the problem? Would they have an obligation to deal with that, or would the county or the state have an obligation to deal with those problems? MS. GUNDLACH: I'm sorry, I don't understand your question. CHAIRMAN STRAIN: It's a hypothetical. COMMISSIONER MURRAY: What I'm trying to determine, Page 99 September 20, 2007 I'm trying to get an understanding what our view is. For instance, it's clearly common area, which means that the people in an HOA would be responsible for maintenance of that waterfront, if you will, that lake, that manmade lake. And I was just wondering if that also applies in that particular configuration out there. All those people who live on the bay waterfront or on the Gulf waterfront, if something were to happen to that water, would they all be obliged to remedy that problem or is that a different kind of waterfront? MS. GUNDLACH: Well, Little Hickory Bay is owned by the public. COMMISSIONER MURRAY: Who then is responsible to maintain it if there's a problem, or to remedy the problem? Would it be those people that own the property there or would it be the county? CHAIRMAN STRAIN: I think you're trying to make a point, and you have. I don't know if she can answer the question. I think it's obvious that the point is being made -- COMMISSIONER MURRAY: Well, I hope so. CHAIRMAN STRAIN: I got a couple of points that came out of this discussion. Clearly that water management lake is a common area. I think staff acknowledged that and everybody has. If it's a common area, according to 77-48, it has a 10-foot side yard setback. So I think the resolution lies in this 77-48, a valid part of this exercise. And maybe the County Attorney could answer that question. MR. KLATZKOW: We're getting involved in the same discussion. The question is are we talking a variance here or saying to Rich, you don't need a variance. And his problem is that if we tell him you don't need a variance down the road, he may run into a problem with another code issue. CHAIRMAN STRAIN: Well, I'm more concerned, Jeff, with what's going to happen to those other homes that are now been pointed out as being potentially in violation of this interpretation. Page 100 September 20, 2007 Now all ofa sudden instead of Rich being the focus of this, we have five or four other homeowners who are going to be dragged into a mess that is a nightmare maybe nobody really wants to get into, if it's not necessary. So I think the interpretation of the validity of 77-48 is very important. MR. KLATZKOW: But that's not what Rich is asking for. He's asking for a variance -- CHAIRMAN STRAIN: Okay-- MR. KLATZKOW: Ifhe wants -- ifMr. Yovanovich wants to get a different interpretation, there's a different mechanism to do that, and I might actually agree with him on this, by the way. But that's not what we're here for, which is my problem. He's between a rock and a hard place here. His client just wants to build the pool cage. And they've decided the quickest and cheapest way to do this is to get a variance and be done with it. And that's the route they chose. CHAIRMAN STRAIN: Mr. Schmitt. MR. SCHMITT: First of all, what I recommend, if that's your position, you would make that as a basis of your motion, if you're going to recommend approval, is that you believe that it is such the case that that is common area and we could revert back. Now, before we would ever proceed with any kind of code issue out here, I would first require the zoning director to render an official interpretation as to how the laws are applied. I would then have to do any kind of research to find out when any of these permits were issued and under what ordinance they were issued. We haven't even gone down that road nor do I really intend to. But if you want to make it a recommendation and use that as the basis of your recommendation, it certainly provides additional information for us if we ever go down that road, that there may be questions on how the PUD should be applied. This PUD is very problematic. Page 101 September 20, 2007 CHAIRMAN STRAIN: I agree with you. MR. SCHMITT: And also, just so you understand, this PUD also has more lots than there are authorized homes, which has been an issue for a long time in this PUD. Some day somebody is going to buy a lot and they won't be able to build a house. This is a very problematic PUD. There are a lot of things that need to be corrected in this PUD. This sentence was one that we may not all agree with it, but it's in there, and that's the way we applied it. If you want to look at that differently, then we'll certainly accept that as a recommendation. CHAIRMAN STRAIN: Ms. Caron. COMMISSIONER CARON: Ifthere are so many problems within this PUD, why are they not being required to come forward and correct those issues? MR. SCHMITT: I've had this discussion with an attorney about probably four years ago on that same issue. I can't require them to come in. Eventually we may get there in regards to some development rights. But it would have to be the homeowners, because there is going to be some compromises when eventually this PUD, when somebody wants to develop a lot and then in fact there's more -- like I said more lots than there are homes, and there are homes that have built across two lots. This has just developed over the years and created those kind of problems. I don't know if I -- I didn't answer your question. I really can't force them to come in because there's really nothing in violation. There's just problems that the PUD needs to be cleaned up. CHAIRMAN STRAIN: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: I think we have enough confusion with this one rather than going where you're beginning to go. CHAIRMAN STRAIN: I think the board's more or less Page 102 September 20, 2007 expressed itself quite a bit on this and I think our expressions are heard about clear, so -- do we have any other further questions that we can end this issue? (No response.) CHAIRMAN STRAIN: Hearing none -- are there any public speakers, Ray? MR. BELLOWS: No public speakers. CHAIRMAN STRAIN: Mr. Y ovanovich, do you want to destroy any chances of success by having a rebuttal? COMMISSIONER VIGLIOTTI: Silence is golden. MR. YOV ANOVICH: If you're guaranteeing me success, absolutely not. CHAIRMAN STRAIN: I can't guarantee anything, Rich, you're more than welcome to rebut. I'm not sure what you want to do. Go right ahead. MR. YOV ANOVICH: No, I think the issues are out there. This is a confusing PUD. I think this property meets the requirements, and my client should be allowed to go ahead and build a pool. And I'm requesting that you recommend to the Board of County Commissioners that he be allowed to build that pool. CHAIRMAN STRAIN: Thank you. Okay, with that, we'll close the public hearing and entertain a motion. Is there a motion? Mr. Schiffer. COMMISSIONER SCHIFFER: I move we forward petition V A-2007-AR-11625 to the Board of County Commissioners with a recommendation of approval. I'd also like to state in that motion that the reason we're doing so is thi~ is not a waterfront lot. COMMISSIONER VIGLIOTTI: I'll second that. CHAIRMAN STRAIN: Is there second? Made by Mr. Viggliotti. Any further discussion? Page 103 September 20, 2007 (No response.) CHAIRMAN STRAIN: I would suggest if the motion maker and second wouldn't mind that we recommend to the Board of County Commissioners that they ask their legal staff to determine the validity of Ordinance 77-48 so that the correct chain of PUD is reviewed, and then in the future be reviewed -- for the other homes that lie around this lake. That way the other people are somewhat protected. Is that okay? COMMISSIONER SCHIFFER: Fine with me. COMMISSIONER CARON: So you're going to ask for an interpretation from the County Attorney's office? CHAIRMAN STRAIN: Right, so the chain of the PUD-- COMMISSIONER SCHIFFER: Would that interpretation include the outcome of the question is this a waterfront lot? CHAIRMAN STRAIN: If you want to add that to the motion. COMMISSIONER SCHIFFER: Well, I definitely do. I want to -- there's a vacant lot on there. There's people that have built in good faith based on that this is not a waterfront lot. And I think I would like to have a lawyer determine whether it's a waterfront lot or not. MS.ISTENES: Mr. Chairman, by the LDC -- by the LCD, the zoning director is the one authorized to make official interpretations. We certainly do work with the County Attorney's office on that but by law I'm the one authorized. CHAIRMAN STRAIN: So the interpretation issue that Mr. Schiffer brought in regards to whether it's a waterfront lot, that would be the zoning director? MS.ISTENES: Correct. CHAIRMAN STRAIN: But the chain of title -- or the chain of order for the PUD would be the County Attorney. MS.ISTENES: Have no doubt they would be looking at that and/or assist me, as that would likely be part of my research and my official interpretation. Page 104 September 20, 2007 CHAIRMAN STRAIN: Well, I certainly would think that the motion maker and second accept those stipulations as part of their motions? COMMISSIONER SCHIFFER: I would like to have the fact noted that at least the Planning Commission, which Susan can tend to ignore, agrees that this is not a waterfront lot. I would like that to stay in the motion. It can fail based on that. CHAIRMAN STRAIN: I don't think it's a waterfront lot in relationship to the definition -- to the reference that's made in 85-21. That's as far as I can go without looking at it further. But I certainly think the waterfront in 85-21, especially when you look at G and then H following it, was really in reference to a rear waterbody on Gulf front or bayfront, the way that's worded. How it got to where it is today because of reference, one word may have been missing unintentionally, regardless of what the intent was. But I agree with your statement there on that issue, but overall with the code, I can't go there yet, Brad, I'd want to look at that more closely. COMMISSIONER SCHIFFER: Okay. So what do you think the motion should be? CHAIRMAN STRAIN: I think the motion ought to be that the County Attorney will look at the chain of authorship from 77-48 to now to see what are the valid PUDs and PUD amendments that are in place. And that the county staff under the director of zoning should look at the designation of whether this is waterfront or not, in regards to the questions raised today. COMMISSIONER SCHIFFER: The other question I would really like to answer is can a lot be determined waterfront that does not connect to the water. CHAIRMAN STRAIN: Why don't we bring it up under new business and we ask for specific research by staff to do that. COMMISSIONER SCHIFFER: The important thing is that gets Page 105 September 20, 2007 us approval. COMMISSIONER ADELSTEIN: Could we continue this one until we get the information? CHAIRMAN STRAIN: Mr. Lindy, there's a motion on the table. COMMISSIONER ADELSTEIN: I understand that. CHAIRMAN STRAIN: Okay. Why don't we see the outcome of the motion. We could continue anything we want to continue with the acceptance ofthe applicant. I don't know why we'd want to do that. But I don't think the mindset's here to need to do that. You may be one that does but I don't think you'll find the rest of us. Mr. Kolflat. COMMISSIONER KOLFLAT: Could he ask to have it tabled? CHAIRMAN STRAIN: Yeah, he could, but I don't know why he would. This is something -- let's get done with the motion first. We have a motion, we have a series of stipulations. The stipulations are the county would look at the PUD and county staff would look at whether or not it's really a waterfront lot, based on Mr. Schiffer's points. Is that satisfactory to the motion maker and the second? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: Yes, for the second. Motion maker, Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, it is. CHAIRMAN STRAIN: Okay. With all that, we'll call for the vote. All those in favor of the motion to recommend approval as stipulated, signify by saying aye and raising your hand. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. Page 106 September 20, 2007 COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. All those opposed? (No response.) CHAIRMAN STRAIN: Mr. Lindy? COMMISSIONER ADELSTEIN: I'm in a situation where as far as I'm concerned right now, you have a motion, and we're talking about someone else is going to make a judgment on it later and we're going to vote on it now. CHAIRMAN STRAIN: Mr. Adelstein, are you going to vote yes or no for the motion. COMMISSIONER ADELSTEIN: I'm going to vote no on it that way. CHAIRMAN STRAIN: Okay. The motion stands 8 to 1. Thank you. Now, we have a decision to make. We have one more issue, which is called Wing South. It tends to be a minor change but it could be a major discussion. We could take an hour on it, we could take 30 minutes on it. We have a lunch coming up. What does this panel want to do? It's the last thing on Ray's agenda. Ray, do we have any speakers on the Wing South besides the applicant? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: What do the panel members want to do? We're going to take a break regardless, but -- COMMISSIONER SCHIFFER: Let's go for it. CHAIRMAN STRAIN: Go for lunch or -- COMMISSIONER SCHIFFER: I mean, I have a few comments. CHAIRMAN STRAIN: All right. I'd like to finish it too. Okay. Let's take a break, we'll be back here at 12:00 and continue at noon. Thank you. Page 107 September 20, 2007 (A break was taken.) Item #8E PETITION: PUDA-2007-AR-11283 CHAIRMAN STRAIN: Okay. We'll come back to order. The last item on today's regular agenda is petition PUDA-2007-AR-11283. It's Wing South, Inc., the ShadowWood Planned Unit Development. It's on Rattlesnake Hammock Road. All those wishing to testify on behalf of this application please rise to be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Any disclosures on the part of the Planning Commission? (No response.) CHAIRMAN STRAIN: I had an e-mail exchange with Heidi and a discussion with Wayne Arnold on the phone. And basically my concerns were not of what they were trying to do but of the reasoning as to why it was being done. Thank you. It's all yours. Let the report show Commissioner Adelstein has left the meeting. MS. WILLIAMS: I regret to say this, but good afternoon, Commissioners. For the record, my name is Heidi Williams, I'm a certified planner with Grady Minor & Associates in Bonita Springs. Also here today with me is David Schmitt, who is a professional engineer in our office. We're here on behalf of Wing South, Incorporated. As stated, we are here to propose an amendment to the ShadowWood PUD. This is located on the north side of Rattlesnake Hammock Road, approximately one mile west of County Road 951. The amendment proposes to remove 1.98 acres approximately Page 108 September 20, 2007 from Tract C, which is called private air park, which currently allows runways for the air park, hangars, fueling and maintenance facilities, among other things, and to change that tract designation to Tract B, which allows single-family residential uses. We also propose to add five units to the PUD. And this is in part due to the way the units are assigned in this PUD. We don't have authorization to take five units from anyone else, and a different owner, so we needed to propose five units to be able to build anything on this two-acre tract. So this is a minor amendment because the air park intensity was essentially traded for the residential density. And I'll get into that a little bit further. We've attempted to make as few revisions as possible to the text of this document in an effort to minimize our impacts to other property owners' development rights. And they are as listed in the draft ordinance that was included in your packet. We've been through review with county staff on -- multiple types of staff, and we'd just like to say that our comprehensive planning staff has found this amendment consistent with the Growth Management Plan. And I'd like to put an exhibit up here regarding density. These calculations were included in the staff report. I've just put them here. And I'm not seeing that the color is showing up very well. But there are a few ways to calculate density. The gross density of this PUD is the total units and the total acreage. These calculations show the approved net density of the residential tracts. The Future Land Use Element under the density rating system has a phrase that says acreage to be used for calculating density is exclusive of commercial and industrial portions of a project, except where authorized in the sub-districts. So during the process, we took the number of units, Tracts A and E, which are multi-family, Tract B which is single-family, and the Page 109 September 20, 2007 entrance road, which was deemed by staff to be necessary to access the residential tracts, and calculated a net density for that. When we took the air -- in our proposed amendment taking the almost two acres out of the air park which is not included in that calculation and added it, along with the five units, that net density is slightly decreased. Overall the surrounding uses to this particular two acres are the air park runway to the east, single-family homes to the north, multi-family homes atop the entrance road to the west and Rattlesnake Hammock Road to the south. It's our feeling that five single-family homes is a much more compatible, appropriate use for the entrance to this community than the potential uses to the air park tract. And that is why Wing South is here today. Very briefly, on our traffic analysis, these five new lots would, according to the TIS in your packet, would generate 57 new trips daily. Four are generated during the a.m. peak and six are generated during the p.m. peak. And transportation staff has found that that's a de-minimus impact and has found it consistent with their plans. We did hold a neighborhood information meeting, as required. We had some neighbors come and they were a little concerned about what we were planning to do, but pretty much as soon as we explained that we are not proposing an interconnection to the properties west of the PUD, the lower density residential west of the entire PUD, many of them were absolutely in favor of the request and had no issue. We've had no opposition presented for this amendment. We do thank staff for their recommendation of approval. We accept the transportation stipulation, and would appreciate your support with this amendment as well. Happy to answer any questions and would just like to have time to respond, if necessary. CHAIRMAN STRAIN: Are there any questions of the applicant Page 110 September 20, 2007 at this time? Mr. Schiffer? COMMISSIONER SCHIFFER: Heidi, what's the existing uses on the site right now that you want to convert? What's on there now? MS. WILLIAMS: Right now the site is cleared but not developed. COMMISSIONER SCHIFFER: In the PUD, Tract C has the potential for buildings and stuff like that to be built out there. Is there no need for that to ever happen? MS. WILLIAMS: I would say the higher and best use of this property is the single-family homes. There may in the future be a requirement to have some other facilities, but there is in Wing South's estimation adequate facility for the air park for now. COMMISSIONER SCHIFFER: So there's no maintenance or anything that goes on there? MS. WILLIAMS: This tract actually extends all the way north on the site. And they do have tie downs and facilities available to the users of the air park at this time. COMMISSIONER SCHIFFER: And the owners of Tract Care who, private individuals? In other words, my concern is that this -- it doesn't have the potential for owners on the other tracts to have airplanes; is that right? MS. WILLIAMS: No, I would not say that this prevents anyone from owning an airplane and being a member of this, along with the associated regulations. It's my understanding that Tract C is also owned by Wing South, Inc. There is an existing building there, there is an area for tie downs, and they do have the facilities they feel are necessary for their operations. COMMISSIONER SCHIFFER: My question is kind oflike there's no rights to the other landowners in the PUD to have the ability to have a plane. And my concern would be is that could this Page 111 September 20, 2007 potentially be the land where they would park that plane? MS. WILLIAMS: In discussions about how this property was set aside, we did talk about that. And originally it was more for water management purpose and that those other uses were anticipated to be in another location. That water management use has been addressed in another way, and -- COMMISSIONER SCHIFFER: That's good. The only other question is that it appears that this is totally using up all of the land on Tract C south of -- or in that area. Does this in any way block off the ability for emergency vehicles to get out onto that runway? MS. WILLIAMS: I'll allow David Schmitt to answer that question. MR. SCHMITT: For the record, David Schmitt. No, it would not hinder any emergency vehicle access to the runway or to the airway proper. COMMISSIONER SCHIFFER: Where is that happening now then? MR. SCHMITT: That would happen up near the clubhouse. Heidi is pointing up to it right now. There's access off that main entryway that they can get to. COMMISSIONER SCHIFFER: Okay. So never would this ever be considered good use of access to the runway. MR. SCHMITT: No, it would not limit access to the runway. CHAIRMAN STRAIN: Are there other questions of the applicant? (No response.) CHAIRMAN STRAIN: I have one question for you, Heidi. MS. WILLIAMS: Okay. CHAIRMAN STRAIN: Did you have anything to do with determining that the Tract C was now a commercial tract in lieu of the intended use that was probably designated through the RO process? Page 112 September 20, 2007 MS. WILLIAMS: My discussion with staff centered on the future land use description of commercial and industrial portions of the project being exempt from the density calculation, or excluded, I should say, from the density calculation. And I did have discussions with them to present a case to not have it be part of the calculation so that this application could move forward. CHAIRMAN STRAIN: By re-designating the airstrip, Tract C, as commercial, that provided a different intensity calculation that benefited your argument. I've got no problem with the number of homes you want to add there. I think that's a fine thing. What I have real concern with is that by re-designating that tract as a commercial use, you now provide for possibly a conversion of density bonus to that tract down the road to someone else, should they want to come in and take out the air park, under the old conversion of density -- of commercial. Whereas we had testimony during the LDC hearing that was real clear from Clay Brooker and acknowledged by staff that an airstrip, an air park is only used in industrial or business parks. And based on that, I don't know how we got to the conclusion it was commercial. Now the reason that's important is because if it isn't commercial and stays as it is, your intensity becomes different than what was provided to us and your density stays the same, the way it's calculated as far as the density changes. I'm not saying it's still any worse. My concern is that the impact on that piece of land in the future for someone wanting to use it or for something else for conversion becomes a real problem. MS. WILLIAMS: I can understand your concern as you've just described it. And I don't think that the finding is that that was commercial. I think the finding is that that property would not be included in the density calculation because it's commercial or industrial. The uses listed in the air park tract: runway, maintenance, Page 113 September 20, 2007 fueling, those are not generally residential. And it seems appropriate to me that those would not be included in a residential density calculation. I don't think that that finding necessarily causes someone down the road to be eligible for a commercial conversion. CHAIRMAN STRAIN: That's good, because if that doesn't, then I'm fine. But I certainly view -- MS. WILLIAMS: That's my opinion, and I'm sure staff would be able to speak to that as well. CHAIRMAN STRAIN: Thank you. MS. GUNDLACH: Good morning -- actually, good afternoon. I'm Nancy Gundlach, Principal Planner with Zoning and Land Development Review. And I'm here to answer any questions you may have today. CHAIRMAN STRAIN: You heard mine. You want to start out with that? MS. GUNDLACH: Ifwe consider Tract C to be private airport district, to be commercial or industrial? CHAIRMAN STRAIN: You did or your staff report does. And I'm just wondering, is that something that is going to be concerning for -- is that something that could trigger the ability for someone to use that then as a commercial conversion tract in the future to get 16 units per acre, or whatever they would want to get. MS. GUNDLACH: I'll defer to somebody who's got a lot more experience on that particular issue. CHAIRMAN STRAIN: So he was waiting here this whole time today just because he knew that question was going to be asked. MS. GUNDLACH: He was here just for us. MR. WEEKS: For the record, David Weeks, Comprehensive Planning Manager. I've been waiting for my turn to become a grilled cheese sandwich. CHAIRMAN STRAIN: Couldn't figure out why you were there, Page 114 September 20, 2007 David. I had no idea it would be this question. MR. WEEKS: Commissioners, when this petition was initially submitted, the first response from our department was that the request was not consistent with the comprehensive plan. We simply looked at the existing density in the PUD, which under the calculations stated in the PUD excludes Tract D, which is identified as a commercial tract. And then we looked at the request, which is to add five dwelling units. It seemed like a no-brainer. You've increased the density. That is not allowed. The reason it's not allowed is that this entire PUD is consistent by policy. The existing density in this PUD is not consistent with that allowed by the density rating system, and that existing commercial Tract D is not allowed by the Future Land Use Element as far as locational criteria for commercial development. And in such cases for properties that are not consistent with the Future Land Use Element, future land use designations, yet has been deemed to be consistent by some policy, in this case having to do with the zoning reevaluation program in the early 1990's, such a property is then allowed to go through changes that the zoning can be amended, they're not locked in forever to what they have, but any changes that are made must result in a lesser density or intensity or at least a neutral. You cannot increase the density or intensity. So again, our initial response was, foul, you can't do this, you'd increase the density. Then we looked at this more closely, and as Heidi suggested, she did speak to staff, she did propose to us that the Tract C, the air park tract should be viewed as a nonresidential use, as either commercial or industrial in character and therefore not subject to being included in the acreage that is used for calculating residential density. Hmmm. So we agree with her. Ray and I spoke, and I looked in the LDC to see where is a private air park allowed, where is an airstrip allowed. And my recollection was it was only in either industrial or possibly a higher Page 115 September 20, 2007 intensity commercial zoning district. And therefore I agreed and Ray and I together agreed that a private airstrip, the air park tract in this PUD appropriately could be considered as a commercial or industrial type of a use, therefore not subject to being included in your residential calculation. And that really is the -- Mr. Chairman, your question, that is really the key here. Because if you disagree with staff on that point, then I would suggest to you that your conclusion has to be this petition is not consistent with the Growth Management Plan. That is the lynch pm. And so by determining, staff determining that the air park tract is in fact a commercial or industrial type of a use, the acreage that was used to calculate residential density shifts to match what Heidi had put on the visualizer, a density of 4.74 units per acre today and then with the conversion of approximately two acres of change -- approximately two acres from that air park tract to residential, that acreage increase offsets the five units that are being requested to be added such that there's a very slight reduction in density. That is the basis upon which comprehensive planning department determined that this PUD request is consistent with the Future Land Use Element. CHAIRMAN STRAIN: David, just so the record's clear, I have too. I have the sections, the tables on the uses, and transportation by air is an industrial and business park use. Policy 5.1, as I know you're familiar with, it talks about commercially zoned uses. And it seems to be addressing -- and it says for such commercially zoned properties, zoning changes would be allowed provided the new zoning district is the same or a lower intensity commercial zoning district. We're changing an industrial use to a residential use. And I agree, that's a lower intensity. But how does it find its consistency with Policy 5.1 or others that then refer only to commercial uses? Page 116 September 20, 2007 MR. WEEKS: Bear with me. Policy 5.1 was amended with the EAR-based amendments adopted in January of this year that just went into effect, I believe, in July, right about the time or just after our consistency memo was written. So as a starting point, we were looking at the old policy 5.1 to reach our conclusions. However, I've been sitting literally in the back of the room today looking at this new Policy 5.1 to see if I would still come to the same conclusion. I do, but I'm going to acknowledge right up front that it is -- I believe, there's a gray area. If you take a very strict reading of Policy 5.1, I would have to agree with you, Commissioner Strain, because there is no specific mention of a conversion of industrial zoning to residential density. It's all in the context oflessening the intensity of the overall project. And that -- it was more of a general principal that I was reading into the language as the basis for my determination. And I would again acknowledge right up front that if you do not accept that premise, if you disagree with my position or my department's decision, then I respectfully suggest that you have to find that this amendment is not consistent. CHAIRMAN STRAIN: Well, if the documentation provided today talks about this being considered commercial, the airstrip, clearly -- and I pulled the '82 LDC, and the '82 LDC didn't allow airstrips except in industrial and AG-2. So even in '82 it wouldn't have been allowed. In fact, in '82 the PUDs didn't allow an expansion of commercial greater than five percent of the gross area of the PUD, which this would now bring that commercial into greater than five percent of the overall PUD. But putting all that aside, my biggest concern is -- and we've had this happen in the fact of Coconilla, I think it was, that one in Wiggins Pass, where they came in and got a conversion from commercial to residential because they were deemed commercial under the old Page 117 September 20, 2007 rezoning revaluation ordinance, which by the way can only be done by the Board of County Commissioners. And I find that staff deciding this as commercial troubles me a little bit in that regard, too. But putting all that aside, if someone acknowledges now that this is commercial, do they have a right to convert it in the future, would that feather their argument to come back to us? Obviously this air park may not last as years go on with all the build-up around it. It doesn't make a lot of sense, probably, for people that live there, maybe. But at some point the danger of such things may outweigh the neighborhood's concerns. And the next thing you know, they're going to want to come in and change this PUD again or take out the commercial and put in some converted units. Will this lend then to their argument of being able to do that? MR. WEEKS: My initial thought was not. But frankly, after having some discussion with the zoning director a couple of weeks or so ago about this, I would have to conclude that your observation is correct. I don't think that -- the initial position I had taken was we would bifurcate this. We would say, well, for density purposes we're going to treat that as commercial, but for conversion of commercial purposes we won't. And after talking to Susan, I had to conclude that I don't think I can stand here with a straight face and tell you that makes sense. So, the short answer to your question is, yes, I think if we do consider this to be commercial zoning, then it would have -- and ultimately the board makes that decision to agree with staff, then we would have to consider it eligible for future conversion of commercial. CHAIRMAN STRAIN: Now, had this applicant come forward and not used this argument to benefit from the resulting, say, reduction in density, they couldn't have got their five units they were asking for, because then they would still be inconsistent because they would increase in a nonconformity. Page 118 September 20, 2007 MR. WEEKS: That would be my conclusion, yes, sir. CHAIRMAN STRAIN: And my last comment -- Ms. Caron, you had something you wanted to say? COMMISSIONER CARON: Well, I was just going to say, can we make stipulations to make it impossible for them to come in for that conversion? If you were to -- CHAIRMAN STRAIN: I wouldn't do that. I think a stipulation rather than an applicant's acquiescence to such an agreement wouldn't be -- I'd rather see -- if this becomes an issue and the applicant were to come forward with a statement that would go on record that they would not utilize the conversion for any such purpose, maybe I'd feel more comfortable with it, but -- back on the stipulation, I hope it gets through the public process. I'm not sure that would be -- COMMISSIONER CARON: Obviously it would be -- CHAIRMAN STRAIN: Let David answer that. Can you answer that? MR. WEEKS: Well, since you're dealing with a zoning document, even if there's no legal issue with adding a statement that this property, Tract C, will not be eligible for future conversion of commercial applicability, I respectfully submit that the way someone's going to come in to increase density is to amend the PUD. I would expect them to propose to delete that very sentence. CHAIRMAN STRAIN: Mr. Murray, did you have -- COMMISSIONER MURRAY: Yeah, I guess it was two, three years ago we had a joint meeting with the BCC, and among those issues that we dealt with was the elimination of the conversion. That never occurred? That never went through? MR. WEEKS: That was part of the EAR-based amendments, and no, it did not. The County Commissioners themselves had quite a bit of debate over that. And at one time it proposed reducing the conversion from a maximum of 16 down to 12. They discussed that any conversion -- I believe that was the issue, that any conversion Page 119 September 20, 2007 would have to be affordable housing. But ultimately they did not make a motion. CHAIRMAN STRAIN: David, could this applicant come back in, if they wanted to, remove this acreage from the PUD, which would lessen maybe the -- and then re-subdivide it into a standard subdivision for single-family homes? I know you can if it's a subdivision, but couldn't they remove this from the PUD? And if they did, then they would be free to subdivide the property as a standard subdivision. It's got legal access, it's got water, sewer, and all the rest. MR. WEEKS: It would all depend on the math. And I think you've hit it on the head here. By referring -- if you're referring to Tract C, if they pulled out the air park? CHAIRMAN STRAIN: If they pull out -- no, not Tract C. If they pull out the five lots that they want these houses to go on. They're going to take those out of the PUD. They're no longer going in the PUD. We just want standard zoning for them. Would that be a way to get around this concern? Because I'm not against their platted lots at all, but I don't want to trip up the comprehensive plan to a point where we open the door then it comes back and nails us five or 10 years down the road. MR. WEEKS: I think we're going to be right back to the same place we are now. If they remove the two acres that you're speaking of that they want to the put their five units on, that takes two actions, one is an amendment to the ShadowWood PUD to exclude the-- remove those two acres, and then a separate rezoning action to, say, a single-family zoning district. That rezoning to the single-family zoning district would not be an issue. But what does it do to the density in the ShadowWood PUD? And we're going to be right back to this same issue because the result is they have the same number of units, 569, but they're reducing the acreage that is used to calculate density. The result is density goes up, Page 120 September 20, 2007 unless the air park tract is considered commercial or industrial and removed from the calculation. We end up to the same point. CHAIRMAN STRAIN: That's the risk I was worried about, was getting to that commercial conversion. We've already had a bad dealing with that in the past, so -- any other questions of David while he's up here? (No response.) CHAIRMAN STRAIN: Thank you, sir, appreciate your time, David, and patience today. Now, I think the staff -- let me see if we're finished with staff and then we'll go back to you, Heidi. Nancy, had you finished up or were you just waiting for questions? MS. GUNDLACH: I was just going to close, but it sounds like you still want to discuss this with the applicant? CHAIRMAN STRAIN: I don't think the applicant can be any clearer than David Weeks was. I just want to make sure there's no questions from the rest of the Planning Commission. Are there any? Do you have any questions at all? (No response.) CHAIRMAN STRAIN: Okay. Thank you very much, Nancy, and now we'll hear a rebuttal by the -- go ahead. MS. GUNDLACH: I just -- I just had one thing I have to read into the recommendation for approval when we get there. But I think Heidi wants to say something? MR. BELLOWS: Why don't you read it in. MS. GUNDLACH: Read it in? Okay. We do recommend approval. And it is subjected to a stipulation from our Transportation Planning Staff. It's on Page 5 of 9 of the staff report under transportation planning review. And it states, the developer shall pay his fair share of the intersection improvements at Rattlesnake Hammock and Skyway Page 121 September 20, 2007 Drive currently undergoing construction as part of the Rattlesnake Hammock widening project. Payment shall be required for six p.m. peak hour trips prior to the issuance of the final certificate of occupancy for the newly constructed homes. And that's it. CHAIRMAN STRAIN: Thank you. Heidi? It's yours. MS. WILLIAMS: Thank you. Again, for the record, Heidi Williams. Commissioner Strain, I think you present some scenarios that have valid concerns, and my opinion, and it's only an opinion, so it carries the weight you assign to it, is that I don't feel a determination that this property is commercial has been made by staff. I feel that they've made a determination that it is not residential and should not be counted as part of the density calculation. Further, should down the road a proposed amendment come to you for a conversion of commercial, that is something you have another opportunity to discuss and decide if that's appropriate, an appropriate amendment to make. I think our point is that this airstrip has actually pre-dated the PUD. It's been there. The residents who call this PUD their home feel that it's an integral part of their community. They support the continued operation of it. And I don't see it going anywhere in the near future. I guess we can't predict. And really, I think that we've made our point and the discussion's been very valid, but that we do not feel it's inconsistent with the compo plan and hope you do agree. Thank you. CHAIRMAN STRAIN: Thank you, Heidi, appreciate it. Any other questions? (No response.) CHAIRMAN STRAIN: Ray, are there any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: With that, we will close the public Page 122 September 20, 2007 meeting and entertain a motion. Well, I will be glad to make a motion. And unfortunately as much as I find this a non- -- I'm not concerned about the five lots, honestly, I think that's a harmless thing to add. But my biggest concern is the inconsistency of the literal language of the comprehensive plan and what that could open up not for only this project but others if we were to go along with it. And the way that weighs into this project is that your calculations to qualify for those five lots are based on the determination of consistency with the compo plan. And once that was broached, unfortunately I have to recommend, and I will make a motion to recommend denial of petition PUDA-2007-AR-11283 based on rezone findings one and 12 and PUD finding three, all of which are issues involving conformity with the comprehensive plan. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Second made by Commissioner Murray. Discussion? (No response.) CHAIRMAN STRAIN: All in favor of the motion, signify by saymg aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Aye. All opposed? COMMISSIONER SCHIFFER: Aye. CHAIRMAN STRAIN: Motion carries seven to one. Thank you. Page 123 September 20, 2007 Item #9 OLD BUSINESS That brings us to the end of our regular hearings. We have old business. There's no old business listed. I know there's a new business item. We'll go on to that. Item #10 NEW BUSINESS Mr. Schiffer, you had discussed earlier about an interpretation or a follow-through on a -- concerning a water body. If you would like to articulate that to a point where we can request of staff to do that, that would be fine at this time. COMMISSIONER SCHIFFER: Obviously what it was, was a determination on that last waterfront lot. And I mean, is it my intent to have staff -- I was actually going to have legal look it up. CHAIRMAN STRAIN: I think we could ask anybody. I'm sure legal could refuse us if they wanted to, I don't know why, but-- COMMISSIONER SCHIFFER: My question simply was can a lot be considered waterfront if the lot itself has no water? MR. KLATZKOW: I think our office will work with Susan and we'll get you an opinion. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other new business? (No response.) CHAIRMAN STRAIN: Okay, there's public comment. Doesn't look like it. With that, is there a motion to adjourn. COMMISSIONER VIGLIOTTI: So moved. Page 124 September 20, 2007 CHAIRMAN STRAIN: Motion made by Commissioner Vigliotti. We are adjourned. Thank you all. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:32 p.m. COLLIER COUNTY PLANNING COMMISSION MARK P. STRAIN, Chairman These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM. Page 125