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CCPC Minutes 10/18/2007 LDC October 18, 2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, October 18,2007 LDC AMENDMENTS 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 (following the Regular Session), in SPECIAL LDC SESSION at the Horseshoe Drive Government Complex, Florida, with the following members present: CHAIRMAN: Mark P. Strain Tor Kolflat Brad Schiffer Paul Midney Donna Reed Caron Lindy Adelstein Robert Vigliotti Russell Tuff Bob Murray (absent) ALSO PRESENT: Jeff Klatzkow, Assistant County Attorney Joseph Schmitt, COES Administrator Ray Bellows, Planning Services Marjorie M. Student-Stirling, Assistant County Attorney Michele Mosca, Comprehensive Planning Page 1 October 18, 2007 LDC AMENDMENT CYCLE 2007-1 PUBLIC HEARING MR. KLATZKOW: The proposal we're submitting is -- I call the oh-my-God ordinance. It's -- after we've gone through the process, we get to the Site Development Plan and we find that there's a use there that really is not compatible with a nearby neighborhood. It would be developable as of right, but really doesn't belong there. Staff would have the ability at that point in time to sort of put the stop sign out and say, wait a second. This really needs to be looked at, and we have to start taking some steps to ameliorate the problem. One could be simply moving the site from the location closest to the residential to move into a location on the other side of the plaza furthest away. It could be as simple as that. Once staff has determined that, at the Site Development Plan stage, that a proposed use is really incompatible with the neighborhood, it would then go back through the conditional use process so the Planning Commission would hear it, and you could tell staff, now, we do think this is compatible, go away, or you can sit down, you can say, no, you're right, staff, you know. Perhaps put up a wall here or put up landscaping there or do this or do that, and then we get through to the board and it would be the regular conditional use process. I don't expect this process to be used a lot. This would be a very, very rare process, but it would be used when either there was a mistake made in the process or ifthere was an unintended consequence of the PUD. I don't think this would ever come up during straight zoning, quite frankly. The second part of it -- and that's 5A and 5B. The second part of it is a continuation of, we're trying to figure out what to do with outdoor seating. And what we would do is, if you're existing outdoor seating and you're within 1,500 feet of a Page 2 October 18, 2007 residential or Estates zoning, you need to put up some sort of buffering, some sort of wall. And what we came up with was the same reports we've been seeing in previous Planning Commission meetings. We'd have to have an engineer certifY that the sound volume be no greater than 55 decibels, 150 feet away. There's nothing magic about these numbers. This is just the intent to get something on paper. And the second part of it basically says if you're within 2,500 feet of a residential, there will be no live outdoor entertainment. We just can't figure out any other way to do it. And, again, this is just trying to get back at that outdoor seating and the entertainment issue that we've had, discussing all along. CHAIRMAN STRAIN: I'd like to take this in two parts, because 5A and B is distinctly different than 5C. MR. KLATZKOW: Yes, it is. CHAIRMAN STRAIN: So if the board doesn't mind and we can, in a logical manner, let's look at 5A and B first. Mr. Vigliotti? COMMISSIONER SCHIFFER: If you look at the-- CHAIRMAN STRAIN: Well, Mr. Vigliotti's been recognized first. COMMISSIONER SCHIFFER: The definition first though? I mean, page by page or we going to -- CHAIRMAN STRAIN: Bob? Brad, can we ask -- COMMISSIONER SCHIFFER: Okay. 5A's fine. CHAIRMAN STRAIN: Okay. I don't see any new definition here, so I'm not sure -- well, anyway, let's start with -- Bob had the floor. I'm sorry, Bob. Go ahead and finish and then we'll go back to Brad's question. COMMISSIONER VIGLIOTTI: Jeff, I just want some clarification on the first part of that. You had said if it's existing Page 3 October 18, 2007 seating within 1,000 feet or 1,500 feet, they have to do -- MR. KLA TZKOW: No, we're talking 5A. 5A is at the Site Development Plan. There's nothing there yet. There's just -- it's just paper. At that point in time, if staff sees that, wait a second, they're proposing a use here that's really not compatible with the neighborhood, they can either recommend that it be moved to a different part of the PUD, or if staff and the applicant can agree to that, it goes through the conditional use process, and we try to, as we do in all conditional uses, try to ameliorate the problem. CHAIRMAN STRAIN: Okay, Brad, what point did-- COMMISSIONER SCHIFFER: No, I -- and maybe I'm -- but it looks -- we're changing the definition section and your section 10; is that right, or is that -- MR. KLA TZKOW: Yeah. I believe that we're adding a definition to incompatible use. CHAIRMAN STRAIN: It wasn't underlined. COMMISSIONER CARON: It was not. MR. KLATZKOW: Yeah, I hear you. COMMISSIONER SCHIFFER: It was on the first one I looked at. MR. KLATZKOW: Yeah. COMMISSIONER SCHIFFER: But it is new? MR. KLATZKOW: I believe that is new, yes. COMMISSIONER SCHIFFER: So that's kind of where I -- can we talk about that then? CHAIRMAN STRAIN: Yeah, I'm sorry, Brad. I had not seen it as a new definition because it wasn't underlined. So let's go into the incompatible use definition, and then we'll move through the document there. Go ahead. COMMISSIONER SCHIFFER: Jeff, the concern I have is that first of all, bringing aesthetics into this, what a nightmare. What kind Page 4 October 18, 2007 of thing are you thinking about there? In other words, we have architectural standards, we have a permitting process. Other than the look of the people, what would be the aesthetics -- MR. KLA TZKOW: The concern I had was traffic, noise, and odor. My concern wasn't aesthetics. That was a staff concern. COMMISSIONER SCHIFFER: And don't you think that would be really -- you know, a real odd thing where there's a discussion about incompatible aesthetics? MR. KLA TZKOW: Yeah. I'm not going to argue that. COMMISSIONER SCHIFFER: There's a lot of people in history who would, but -- and why don't we just put conflicts for the health, safety, and welfare, and then let people figure out what it is that's hurting that? Why are we -- okay. I mean, I just think if you kill aesthetics, I'd be very happy, but-- CHAIRMAN STRAIN: Did you have something, Ms. Caron? COMMISSIONER CARON: Not on the definition. CHAIRMAN STRAIN: Any others on definition? Jeff, my concern is ambigenous -- ambiguities of the definition. Incompatible use is uses which differ to such an extent. Well, how do we define such an extent? In character and intensity and that major conflicts. Well, what's major? Because a lot of people will differ on what is major to them versus a lot of other people. Without those kind of elements determined, it makes it real hard for me to understand how this could be reasoned without being judged arbitrarily by different people. MR. KLATZKOW: Well, I guess we're always a little arbitrary when we talk about what's compatible and what's not compatible. It's almost in the eye of the beholder. CHAIRMAN STRAIN: Would we be better off talking about what is a compatible use versus what is not compatible? MR. KLATZKOW: Well, to define it is -- well, any uses not-- Page 5 October 18, 2007 any use that's not compatible with the neighborhood, we could define it as, if you'd want, but that begs the question, what's compatible use at that point in time. CHAIRMAN STRAIN: But isn't that further defined in-- between Florida Statutes and other codes? Isn't compatibility a -- more of an issue? MR. KLATZKOW: Culpability is more defined than incompatibility, yes. We could go that direction. CHAIRMAN STRAIN: I'm just trying to be very cautious because there's no sense in having something that opens us up to arbitrary language that we could get nailed for it in the lawsuit that doesn't come out right. MR. KLATZKOW: I agree. We can tighten that up. CHAIRMAN STRAIN: Okay. Any other comments on that definition? COMMISSIONER SCHIFFER: So you're going to write the definition? MR. KLATZKOW: Yeah. CHAIRMAN STRAIN: Okay. Now, let's go to number 5, incompatible uses. And it's -- let's start with the first three paragraphs, and basically let's do the first paragraph. It's a generalization of item number 5, incompatible use. Does anybody have any problems with statements stated in the incompatible use paragraph? COMMISSIONER SCHIFFER: I do, Mark, and it's really -- I think we -- you know, we don't -- how these things are ever going to be done having. Serious objectionable. So that means there's okay objectionable, there's mild objectionable, there's medium -- MR. KLATZKOW: No, again-- COMMISSIONER SCHIFFER: -- objectionable. MR. KLA TZKOW: This is what I refer to as the oh-my-God Page 6 October 18, 2007 ordinance where something comes in and you say, oh my God, I never intended that to go there. It's -- really it's one of those things that you take one look and you say, this should never be near a residential neighborhood. CHAIRMAN STRAIN: But see, we could clean this up by the first definition. And instead of saying serious objectionable operational characteristics, why don't we say, I recognize this having characteristics that are not -- that don't meet the compatibility criteria of this ordinance, or whatever ordinance we want to set? MR. KLATZKOW: We can do that. CHAIRMAN STRAIN: I mean, then we've got something to tie it to. Mr. Tuff? COMMISSIONER TUFF: We have all those codes that put things that are there and compatible together generally. Now are we just saying, well, we don't think that's correct now and they've been using it for years? And I'm just thinking it's way, way too weak to even -- well, the whole thing, I think, is just not right. CHAIRMAN STRAIN: Well, as a global response -- and we're looking at 5A and B together then, this is basically saying, if we make a mistake during the rezone process of a PUD, then too bad for that applicant. Someone later on can basically say, we don't agree that's the use that was intended there. Now you've got to go back through another rezoning process. That's a little scary as a whole. And I know we haven't got to that paragraph B yet, but my concerns with this document -- and part of it __ I have no problem with C. I think C is doing real well and in the right direction. But when we've got a PUD that's approved, if we've failed at our level to spend the time we should have taken like we did today and just get into the minuscule detail of every single SIC code referred to and Page 7 October 18, 2007 define it, and if we have a restaurant and it shouldn't have outside entertainment, we need to say that. We need to be very specific. I think we're learning that lesson. And I think to try to put it now in a document that comes back and says, well, you've got your zoning but you really don't, think of the impact that a developer or anybody is going to unfairly be put to when they go to their lender, when they go to try to sell the property, through all kinds of things, and that's where my concern has been. Ms. Caron? COMMISSIONER CARON: But let's face it, we are all human, and errors can be made. And as Mr. Klatzkow pointed out, he's not doing this willy-nilly. This is seriously an oh-God situation. Somebody really did screw up for whatever reason. And so, again, this is not something that he wants or anybody wants to be used on a regular basis. This is truly something that, for some reason, gets by. I just don't see it as all that threatening of a situation. MR. KLA TZKOW: And also we've learned that we do make mistakes in PUDs. We just do. COMMISSIONER CARON: We just do. MR. KLA TZKOW: And, you know, we can have a discussion and not everything may make its way into a PUD. And then later on, you know, the PUD is what the PUD is and this is another way to sort of almost correct that. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Yeah, but my concern is, is how do we keep it from being abused? Weare going into this with a once in a while real, oh my God. My concern is it might be abused, and then, as you had said, the developer's in the problem. He doesn't know what to do and he's got no guarantees. MR. KLA TZKOW: The abuse is that staff can't do it on its own. If staff makes its determination, this oh-my-God determination, they Page 8 October 18, 2007 have to go to the Planning Commission first, and to the Board of County Commissioners, both of whom at that point in time can tell staff, you know, get away. CHAIRMAN STRAIN: I think there might be simpler way. Instead of putting this back through a conditional use process, why not have staff have the ability to add it on the CCPC agenda for clarification? Then if we are still confused or we still believe there was a mistake, we could suggest it go on to the BCC at that point. Maybe it's more of an informal process rather than the formal conditional use process. MR. KLATZKOW: I much prefer informal to formal. CHAIRMAN STRAIN: Mr. Adelstein, then Mr. Vigliotti. MR. ADELSTEIN: Well, if it's thoroughly explained, thoroughly, each time, and get it done with, and we're going wishy-washy on each one ofthese things. This is maybe this or maybe we could do that. It's either a yes or a no, and that's it. There's no reason why we can't draw it that way. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: My concern, Jeff, is the timetable. Let's say a developer starts building and is ready to go and you say, oh my God. To go through a lengthy process is going to be a long time. MR. KLATZKOW: Yeah, and that gets back to what the chairman said. What we can do is, if staff makes a determination that, you know, there's something awry here, they can go right to the CCPC, and you'll be there within a couple of weeks really, and you'll be in the board in a couple weeks and we'll be done. COMMISSIONER VIGLIOTTI: Then it's not a conditional use, okay. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Let me get Mr. Tuff, then Mr. Schmitt, Page 9 October 18, 2007 then Brad. COMMISSIONER TUFF: I'd like to think here of two occasions or one where this has even come into play that it wasn't a goof-up from something else that would directly be on here. We have all these codes, people invest in it, they say we're going to go do this, and when __ can you think of one occasion where this could be put into play, that we're making a law for nothing? CHAIRMAN STRAIN: Well, yeah, I can think of one. COMMISSIONER TUFF: That wasn't because of this. That was a goof-up earlier though. That was -- MR. KLA TZKOW: What I'm going to tell you is, one, this is commissioner generated but, two, we've just gone through a period of time building where we were processing an awful lot ofPUDs very, very quickly all at once, all right. There was a hot market here. Everybody was trying to get their stuff through. And I got to tell you, my expectation on the next couple of years, we're going to find a couple of these things going on. It's just __ there was too much stuff going through this building for any staff to handle. And quite frankly, there was a lot of pressure on staff to get this thing out quickly. In my expectations, we're going to be seeing, as these things get built out, arguable problems. CHAIRMAN STRAIN: And then -- Brad? I'm sorry. Joe, then Brad. MR. SCHMITT: There's -- let me just paint the picture so you all understand. And I know you're referring to a subject that came up, and it has to do with Pebblebrooke, so we'll just put the cards on the table. This happened in February, 2002. We had -- and just for background, Mr. Bellows received the project. He had a total of about two-and-a-halfweeks. It was scheduled already. It was Mr. -- what was his name? Page 10 October 18, 2007 MR. BELLOWS: Sharam Badavucci (phonetic). MR. SCHMITT: Sharam's project. Sharam and another planner were dismissed, and there was something like 30 projects that were transferred in a matter of days to planners. That being aside, there is some issues with the two-story versus one-story. But your focus now, on Stevie Tomato's. And you have to understand, the SIC code for Stevie Tomato's, it's a restaurant. It may not look like a restaurant, but it's licensed as a restaurant. It has a liquor license as a family restaurant. The -- part of the problem -- so you all understand, what really created this problem, restaurants want to create outdoor seating areas because smokers can no longer smoke inside of restaurants and bars. So, you know, so if you -- we want to stop this. There -- if you're going to look at SIC codes, the SIC codes pretty much allowed what Stevie Tomato's is, and that was a restaurant. It probably was not the most desirable location, but there is no SIC code for a sports bar. It is a family restaurant. The -- I just had another issue here just recently about now bikers night at some restaurant. It's a cafe, but now all of a sudden it's become a hangout for bikers. That had nothing to do with zoning. That had nothing to do with what the PUD authorized. It's now just a hangout and, of course, now it's a neighborhood disturbance. So this kind of ordinance may not even cure some of the problems I think you're going to believe it will cure, and Jeff is aware of this as well. This is -- this is -- and we're into a point where we are -- may be dealing with a challenge and property rights and all those kind of things, but I leave that to the lawyers to handle. CHAIRMAN STRAIN: Okay. And I think we all understand the issue, Joe. I just think we now got to get some language that Jeff can work with and suggest it. Brad, you were after Joe. Page 11 October 18, 2007 COMMISSIONER SCHIFFER: Yeah, I mean, I could continue, you know, the questions I had on 5 to begin with. But, you know, the one thing Jeff is saying is, this is the oh-my-God ordinance. What is -- do we have a process for handling something when the public says, oh my God, look what's going on? What do we normally do? We have a code enforcement. We have no process that can help somebody, you know, cure a disturbance COMMISSIONER TUFF: Well, as Joe just said, if it falls within the PUD, you've got to allow it. CHAIRMAN STRAIN: But let's try to boil it down. We recognize there's -- sometimes a problem occurs with what a PUD is written for and what comes out in the public process through approvals of SDPs and the rest of it. And sometimes those are more objectionable than was originally anticipated. I don't think by the zoning rules we can go back in and say, oh, we didn't mean that; even though we didn't see it, we didn't mean it. We may not have meant it I think the opportunity there is for staff to say. But I think the opportunity there is for staff to say, this goes beyond what I think was the intent of what the PUD was trying to say, but not force people through a conditional use which basically says, you need to rezone your property. They may want a higher authority to look at it so they're not on the spot for making a decision that could be detrimental to the public, and if it comes back before one of the boards or both the boards, at least it's aired in the public. But I don't think it reaches the level of another zoning application. That's where my concern is. You're saying, you haven't got your zoning then and come back in and get your zoning. Well, we just told them they had their zoning. And because someone later on disagrees because we didn't look at it as detailed maybe or as -- thought out all the possibilities, isn't a right to take away, necessarily, their zoning and tell them they've got to come Page 12 October 18, 2007 back in and reapply for it and take that risk. I'm just looking for a solution that's kind of a compromise between the two where we still hit the public process, but it doesn't seem to signifY a loss of one's zoning. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I agree with the chairman definitely. It's a shorter, quicker procedure. But Joe, getting back to what you had said, with the SIC codes and Stevie Tomato's is, we have outdoor music here, we have entertainment, we have the noise. That's what I believe caused the problem. If it was just a sit-down restaurant where people were smoking, I don't think this would have been at the position it's in now. CHAIRMAN STRAIN: But Joe, let me -- I think I can -- if you look at the NASAX (sic) code, which is a more detailed code than the SIC, NASAX defines restaurants as places that have drinking and that have live ent -- they actually use the words, live entertainment. COMMISSIONER ADELSTEIN: Right. CHAIRMAN STRAIN: So if you take all that and apply it, someone that's stretching the rules could do almost what you see is being done there. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: And that's part of the problem. The rules are so flexible in some regard that you end up shooting yourself in the foot by not tightening it down during the PUD process. To be -- what should have happened, if we wanted no outside use entertainment, when we approved restaurants in that PUD, we should have recommended with no outside entertainment, then that would have overridden the interpretations that allow the outside entertainment because it's -- COMMISSIONER VIGLIOTTI: Right. CHAIRMAN STRAIN: -- family restaurant. Page 13 October 18, 2007 COMMISSIONER VIGLIOTTI: And it was during a PUD procedure, so it would be vetted out then. MR. SCHMITT: And understand, the outdoor entertainment in this case is really not even live music. It's TVs and -- CHAIRMAN STRAIN: Well, walls ofTVs are certainly outside entertainment. MR. SCHMITT: Right, I understand, understand. And that's the kind of thing -- that's the kind of specificity that we need to get into. COMMISSIONER VIGLIOTTI: We've learned. MR. SCHMITT: Yeah. But we're also dealing with -- almost every bar right now being built right now, the new ones, have these kind of indoor/outdoor type of bars because of, again, the smoking restrictions. You can look at the restaurants that have opened in this town, and you can see all the outdoor -- every outdoor seating area because it caters to that clientele as well. And it's just a matter of, yeah, we need to look at the proximity to the residential. That's the real issue here. CHAIRMAN STRAIN: Brad was next. MR. SCHMITT: And then put that in the PUD and say, if you're going to put this kind of use, it can't be within 3,000 feet or whatever. CHAIRMAN STRAIN: Michele, I know you're -- I know I forgot your issue. We'll hit it real quick here. MS. MOSCA: That's fine. CHAIRMAN STRAIN: Okay. Thank you. Brad? COMMISSIONER SCHIFFER: One thing that's sad, and this thing kind of does it is that none of these are really fixing problem. I mean, the goal really should be somehow to send some people in to make it right for both people. Even in that Stevie Tomato's, somewhere there's a solution where they could still have their party and the neighbors could be quiet. Rather than see lawyers sitting there, wouldn't it be nice if we could Page 14 October 18, 2007 see landscape architects and designers sitting there trying to help these people solve the problem rather than find some process to shut them down. There is ways that can make things compatible. CHAIRMAN STRAIN: Brad, I think the issue though -- we've got to focus on this language for now. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: And let's try to see -- I think this -- and I think, Jeff, we could look at a better alternative than a conditional use. I think that's a little too harsh in the sense it might be taking rights away that subject the county to lawsuits. And if we add another level to a process for something that can be defined as less -- or not reaching the compatibility, intent of the PUD, that may be a better way to approach it. That's my suggestion. MR. KLATZKOW: When they bring it back to you, do you want to be able to have the ability to say, you can do this but we want to see you do -- you know, put up a wall, put up this, put up that or not? CHAIRMAN STRAIN: Absolutely. I think that that's-- COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: -- the stage at which, if we find that there's a problem, we either can find a cure of the problem or we can reject it as a use that was never intended. COMMISSIONER CARON: Brad can landscape it. COMMISSIONER SCHIFFER: Well, but -- you know, but the wall, like the wall that was in your first proposal wouldn't work. I mean, that doesn't -- I mean, the way acoustics work, a six-foot wall next to a party is not going to do anything. CHAIRMAN STRAIN: But see, that could be debated at the public meeting with all of us there, the public there. It could go on to the BCC as a recommendation if the BCC wants to hear those kind of things, or it could end with us if they decide, like boat docks, it stops here. Page 15 October 18, 2007 But that's a tweaking to the system that could just add a -- if someone comes in and is so bent on the flexibility of the rules to come up with something as unique or as flexible that goes beyond what the possible intent might be as determined by staff, they simply have a little bit longer process to go through to have it aired by the CCPC. Kind of like if we were looking at an SOP or a plat. It just becomes another step because of the complexity of the issue. That's a suggestion. I don't know, you all -- COMMISSIONER SCHIFFER: Wouldn't a better first step, try to invent some sort of arbitration board where you could bring the neighbors, bring the club owner, bring people on that board that sit around? Because if you bring it before the Planning Commission, then you're throwing it out into the public, which is where it ultimately maybe should go, but the expertise of these boards, our board and the commissioners, aren't the best available to solve these problems. CHAIRMAN STRAIN: Well, I think that we do a pretty good job, Brad. I have to disagree. COMMISSIONER SCHIFFER: We do a really good job, but there's people that could arbitrate a situation like this better without making it a big legal battle. CHAIRMAN STRAIN: I don't think coming before any board like this as a refinement of the process is bad, and I'm going to stick with that for now as a suggestion. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: My concern would be speed. I'd like to see a time limit. From the time the applicant applies, he's got X amount of time before it comes before us so that we don't put an undue burden. MR. KLATZKOW: Yeah, I think that's a good idea. Do you have a suggestion how much time? COMMISSIONER VIGLIOTTI: How much time do you need? Page 16 October 18, 2007 CHAIRMAN STRAIN: Well, I think we need to have something suggested to us since -- COMMISSIONER VIGLIOTTI: Come up with how much time -- staff. I'd like to see weeks, as you had said, two weeks. COMMISSIONER ADELSTEIN: Fourteen days? COMMISSIONER VIGLIOTTI: Something like that. CHAIRMAN STRAIN: You guys got to talk -- you can't talk over -- COMMISSIONER VIGLIOTTI: Fourteen days? And it's a short agenda item, even if it was added as one of our agenda items. I don't see it being a long, drawn out item. So we could almost add it on to every one -- almost any Thursday we have. CHAIRMAN STRAIN: I agree. COMMISSIONER VIGLIOTTI: Just play with that. MR. KLA TZKOW: Do you want to see this come back to you, by the way? CHAIRMAN STRAIN: I think it should unless you haven't got the time frame to do that. MR. KLA TZKOW: Well, I got to tell you, we missed the advertising for October 30th anyway, so that -- this goes to the board, it's going to have to be the first meeting in November. So I think we've got time to bring it back to the Planning Commission. CHAIRMAN STRAIN: We could -- if you could have something drafted, we're going to be back here next Friday. MR. KLA TZKOW: Yeah, I can do that. COMMISSIONER VIGLIOTTI: Let's do it right. COMMISSIONER SCHIFFER: You going to throw this out entirely? CHAIRMAN STRAIN: I'm sorry. Mr. Adelstein, you have to-- Brad, what's that? COMMISSIONER SCHIFFER: Is this going to be thrown out Page 17 October 18, 2007 entirely, or should we kind of go through this, pick out the good and that bad? MR. KLA TZKOW: This is good. What I'm going to do is I'm going to play back this discussion and I'm going to rewrite this according to your direction. CHAIRMAN STRAIN: He's going to come back with a major revision to it, and then we're going to review that. COMMISSIONER SCHIFFER: So don't waste time. CHAIRMAN STRAIN: So, jeff, should we continue this discussion then until the next time we meet? MR. KLA TZKOW: Well, we also have C and -- part C. I don't know how you feel on that, if you guys like it or not. CHAIRMAN STRAIN: I didn't find a problem with C. Did anybody else have an issue with C? COMMISSIONER SCHIFFER: I did. Ijust have one. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: First of all, the one that was proposed with the fence I didn't think was good, but you struck that out and you came up with a decibel rating, which is essentially the -- we're back to sound ordinance right, Jeff? MR. KLATZKOW: Yeah, trying to -- we're trying to get some sort of standard there. I mean, whatever needs to get built for that particular use that will reduce the sound level to 55 decibels. COMMISSIONER SCHIFFER: And the 150 feet, I mean, the property line could be closer than that, so why can't we just use property line like we do in the -- MR. KLATZKOW: Nearest residential property line? COMMISSIONER SCHIFFER: Yeah. MR. KLATZKOW: Yeah, that would be good. COMMISSIONER SCHIFFER: And that's what our sound ordinance is. And the failure of this process is the sound ordinance. Page 1 8 October 18, 2007 And then I thought maybe a triple I, which would be -- there are -- the only complaints that I've heard prior to all this publicity is people who were living behind in-door bars, and when they opened the back door to go to the dumpster, they hear the blast of music. So I think that -- and if you want, I can send you the words. There should be something in there that requires a vestibule or foyer situation in that location which, you know, could be something that we -- could be a fix for that problem rather than just bring them in and shoot them or not. COMMISSIONER CARON: By back doors, you're talking about, by dumpsters? COMMISSIONER SCHIFFER: By the back doors. You know, I've done that before where essentially you build a foyer, you close one door and you go out the other door and you don't hear the blast of musIc. CHAIRMAN STRAIN: Think you've got enough input? MR. KLA TZKOW: I think I've got very good input, and I will be bringing this back. CHAIRMAN STRAIN: Then I'd like to see that this meeting was continued then till next -- the 26th after our -- after our other meetings that we have on the 26th. We'll just add it to the agenda on the 26th group of meetings; is that -- COMMISSIONER SCHIFFER: Sure. CHAIRMAN STRAIN: Okay. Is there a motion to continue? COMMISSIONER ADELSTEIN: Yeah. COMMISSIONER TUFF: Just one other thought. COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Wait a second. Go ahead. COMMISSIONER TUFF: I was just thinking, if you have this nice courtyard, you have people living above nice mixed-use and a guy can't have outdoor entertainment there, are we going further than we Page 19 October 18, 2007 want to go or is that -- COMMISSIONER SCHIFFER: Mixed-use is allowed. COMMISSIONER VIGLIOTTI: This doesn't apply to mixed-use, right? COMMISSIONER TUFF: Okay. MR. KLATZKOW: Doesn't apply to mixed-use. CHAIRMAN STRAIN: Okay. Now, is there a motion to continue -- MR. BELLOWS: Mr. Chairman, we do have one public speaker. CHAIRMAN STRAIN: Okay. I'm sorry. Who would in the world could be the -- Oh. COMMISSIONER VIGLIOTTI: Clay Brooker. CHAIRMAN STRAIN: Oh, Clay. COMMISSIONER ADELSTEIN: Absolutely not. COMMISSIONER VIGLIOTTI: Who else? Somebody's paying him to sit here. MR. BROOKER: I've been here all day. Have you guys been here all day? CHAIRMAN STRAIN: And Monday and Tuesday, Clay. MR. BROOKER: For the record, Clay Brooker with the law firm of CheffY, Passidomo. Just a couple of comments, and a lot of mine have comments have already been touched on to various degrees, and I'm impressed by that. Procedurally, I question how this got put on this cycle one LDC amendment cycle. As you know, the Land Development Code, and I believe Florida law, only allows two cycle amendments per year. We're in cycle -- the end of cycle one now. We've already started cycle two. The deadline for cycle one for the private citizen was March 15th, nearly seven months ago, and this appeared about two weeks ago. So no special cycle was approved by the BCC. The BCC has already held its first public hearings on all the cycle Page 20 October 18, 2007 one amendments. This hearing -- this particular amendment has its own hearing schedule. So I would question, from a procedural standpoint, how the government doesn't have to abide by the rules that the private citizens do, because had I -- if I came two weeks ago and proposed an amendment for cycle one and asked for its own hearing schedule, I would have been politely shown the door. Substantively, with regard to the proposal, first I was given -- Mr. Klatzkow gave me a version, a revised version of what I originally thought was going to be proposed today, and I noticed that the amortization section, after five years, we can shut your doors ifthere's a declaration if you're incompatible, is gone, and I just wanted to confirm that because it used to -- it used -- the version I received from the county a few days ago said that once the county manager declares something to be incompatible, an existing use can be declared incompatible, already built, established facility, and you have to close your door in five years. CHAIRMAN STRAIN: Clay, that's not the one we're reviewing here today. MR. BROOKER: Perfect. With regard to what you're reviewing here today, I believe, and my personal opinion is, it's unconstitutionally vague and this gets to the whole definition of incompatibility that you guys have already discussed. Unbridled discretion is given to a county manager to, in his own professional judgment, declare something incompatible although it meets the zoning requirements if it, quote, has the potential to cause a deleterious effect on adjoining uses. I believe that's unbridled discretion given to a staff person. The law is very clear. In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision. And the reason why Page 21 October 18, 2007 that objective criteria is required -- I'm reading from an appellate court case. The reason why objective criteria are required is four -- for four reasons. Number one, persons are able to determine their rights and duties. I believe what Commissioner Vigliotti was speaking about; number two, the decisions recognizing such rights will not be left to arbitrary administrative determination; number three, all applicants will be treated equally; and four, there will be meaningful judicial review available. So I -- I'm curious to see what comes back from Mr. Klatzkow because I believe it is unconstitutionally vague as written. With regard to 5C2, my suggestion would be, if we're really looking at the impact due to noise on adjoining or nearby residential areas, why isn't the 55 decibel standard measured at the nearest property line, whatever it may be, also applicable there? Live outdoor entertainment. I believe if you can't hear it or it's below five decibels, isn't any different than TVs or noise from the patrons of the establishments. So those what -- those are my comments, and I thank you for waiting till 5: 15 to hear me. CHAIRMAN STRAIN: Thank very much, Clay. Mr. Adelstein? COMMISSIONER ADELSTEIN: Yeah. We could look at all the rules you want. I, fortunately, owned one of these almost four years, and we found a very easy way to keep it very calm and very quiet, and that was, we hired police officers who were off duty. And they were in their uniform. And them in their uniform not doing anything keeps an awful lot of a people away from what they're going to do to cause a problem. And if one of them creates a problem, there's no big rush. One of the police officers walks over to him, walks him outside, talks to him about it, maybe he throws him out then or maybe he says, we don't Page 22 October 18, 2007 want you doing this again. But more often than not, you'll find that people who see police officers, even though they're just in that room, are about not to do things they know would be illegal or improper. It worked for me, it worked to (sic) me till I sold it. I don't know what happened after that. But the answer was, we never had any kind of fight or any kind of situation too loud because we wouldn't allow that thing to happen. It was easy. It's not necessarily that difficult. CHAIRMAN STRAIN: Okay. Thank you, sir. With that, we're done with this discussion. Is there a motion to continue this till next Friday at the -- about mid -- I guess do we need a time certain? Let's just -- yeah, next Friday, October 26th in this room. COMMISSIONER TUFF: So moved. COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Did you make that motion, Mr. Russ -- Mr. Tuff? Ms. Caron seconded. All in favor, signifY by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Now, before you all disband, we need to -- unfortunately we adjourned the prior meeting. We need to reopen that quickly enough to reconsider a new date. What has transpired is, this room is apparently now occupied for the 23rd. So even though that was a date that worked for everybody, we can't get back in this room, and we made a motion to continue to this room on the 23rd. Page 23 October 18, 2007 So we need to reconsider that motion and pick another date, but I think what Michele, you were -- mentioned to me in the hall, we probably need to reconsider to pick the date of the 26th only for a time so -- when the school staff can be here so we all can pick another date to really start the meeting at? Is that -- MS. MOSCA: Mr. Chairman, for the record, Michele Mosca with the comprehensive planning staff. Actually that's not going to work now. We'll need to -- unfortunately, we'll need to readvertise. The original hearing was scheduled for September 20th. We continued that hearing to the October 18th date. The 23rd would have put us within that five-week time frame. Unfortunately, going past that Thursday, which is the 27th, would require readvertisement of the petitions. CHAIRMAN STRAIN: I know, but we need to -- we need -- first of all, the meeting that we had today had to be continued. We've got to continue it to a time when we can further discuss it. We can't set a date here today, so we've at least got to continue it to a time where we could set a date, so I think that's the first objective; is it right or wrong? MS. MOSCA: I spoke with Joe Schmitt, and we're looking at if the dates are available the 14th of November. You are correct. I have not been able to get in touch with school district staff. CHAIRMAN STRAIN: Okay. MS. MOSCA: So-- CHAIRMAN STRAIN: Well-- MS. MOSCA: -- we can discuss it. CHAIRMAN STRAIN: So I think the first matter -- the first matter of business will be to correct the record and re -- make a new motion to continue this meeting till the 26th following the AUIR meeting, and at that 26th meeting, we will then establish a new time that will have to be advertised sometime in November to continue the meeting -- to continue the discussion of the school board concurrency; Page 24 October 18, 2007 is that a fair way to approach it, Mr. Schmitt? MR. SCHMITT: Yes, but we may -- prior to the 26th, if it's going to be that meeting of the 14th, in order to have readvertise. We may have to advertise. We'll contact you by email. That is your special hearing for the Cocohatchee settlement agreement, and -- yeah. CHAIRMAN STRAIN: Well, look at it-- MR. SCHMITT: And the next day is a regular Planning Commission meeting. We have, I believe, five agenda items plus the '05 GMP amendments coming back for adoption on Thursday. So that's Wednesday and Thursday. Ifwe do that -- if not, we're going to go into -- later into November for the school concurrency. CHAIRMAN STRAIN: Well, Joe, the last thing we want to do is go later in November for that. What I would like to do -- and the school board is not available -- the school staff has not been available since they left today, apparently, to work this out. So they don't even know we're talking about this yet. MS. MOSCA: That's right. CHAIRMAN STRAIN: Staffs going to have to notifY them that the 23rd is now not going to be -- not going to work because of the meeting location. Do you think by next Friday you can get enough information to work out a new date with school staff? And I don't know -- and what's the soonest we can readvertise for if we had to readvertise? MS. MOSCA: Well, it's a 10-day ad, so we need adequate time to get the ad to the paper. So I'm looking in the next few days and the weekend, and then we'll need 10 days thereafter. CHAIRMAN STRAIN: Okay. Once you advertise for 10 days, then you have, what, five weeks in which to perfect the meeting, or how long? MS. MOSCA: It would be five weeks from the date of the hearing. Page 25 October 18, 2007 CHAIRMAN STRAIN: Okay. Why -- can you advertise today, this week, for our November the 1 st meeting? MS. MOSCA: I could, but I just want to state, I don't know what the timeline is in order to -- the newspaper has a specific timeline. You have to get the ad to the paper by a certain date, a certain time, so I just don't know that timeline. CHAIRMAN STRAIN: Okay. Here's where I'm going. If you can advertise that meeting for the 1st of November, we can meet on the 1 st of November only to set a schedule that we would have five weeks in which to set it in and we could have the flexibility of doing it almost __ much earlier than the 14th of November because we've not been held up on posting an advertising date. We've actually created an earlier advertising date. Is that -- do you think that's doable? MS. MOSCA: Yes. CHAIRMAN STRAIN: Okay. So now let's go back. Jeff? MR. KLATZKOW: Want us to try to find a different room? I mean, the school might have something available. We might be able to -- MR. SCHMITT: Herein lies a problem, if we do it on that date, it's a board meeting date. The A V staff is already committed to serve the board. We could do it in here because I have the microphones. But if we do it somewhere else, I have to hire -- I have to get an outside contractor to set up the entire room and hire someone to do the taping if it's -- if it's the same day as a board meeting. So that -- if we don't do it here the day of the board meeting, which is -- I can't. This room has already been advertised. They're going to do some kind of fire, something, training, there's 50-something people coming, and that's already committed. MR. KLA TZKOW: Well, the school might have a facility that they have all that. I mean, I do watch them on TV all the time. MR. SCHMITT: That's the only other place we'd have to go is Page 26 October 18, 2007 the school board and if they could do it there, I mean, that may be an option. CHAIRMAN STRAIN: On what date are you talking about? MR. SCHMITT: I don't know. That -- we would have to find out if the boardroom is available at the school board. CHAIRMAN STRAIN: Okay. Here's the problem we've got. We've got to continue this meeting to sometime when -- and I think the only thing we can do right now is continue to the 26th because that's the next time we can make another decision as a body. We can't do it on the 23rd right now because they don't have a room to meet in. We need to correct that error by having a new motion, so that puts the soonest we can meet again just to discuss this after today is the 26th. Between now and next Friday, you guys could get all the data you need so that we can have a more viable discussion on the 26th. At the same time, I would suggest that you advertise only to get us in the cycle where we have five weeks in which to choose any time during that period as early as possible in which to have the meeting. The other concern I have is, if you do the advertisement, are you locked into a location by the advertisement? MR. KLA TZKOW: Not really, but it's -- the better practice is to meet where you advertise it. Every now and then we find out that a room's already been taken and we post people at the room and, you know, we'll do it a little bit later so the people have a chance to relocate. Don't really like doing it that way if we can avoid it. CHAIRMAN STRAIN: Well, here's the problem, if we wait till next Friday to decide on where to go and then do the advertisement, then the earliest we can meet is 10 days from next Friday if we can get an advertisement in. That puts us into mid November; whereas if we run the advertisement immediately, we pick up another week in which to choose from. Page 27 October 18, 2007 I -- it doesn't matter to me. I'm trying to help accommodate the expressions I got from staff when they started telling us all the things booked for November. MR. SCHMITT: Commissioner, I'm going to shoot for the 1 st of November meeting, regular meeting, for the continuation. We'll confirm with the school board. We can continue this until Friday and we can put that on the record. But by Friday, between now and Friday, we will confirm, number one, of course, if the school board folks are there -- can be available for the 1st, and we'll continue that to an agenda item as part of your regular meeting on the 1st. CHAIRMAN STRAIN: Good. MR. SCHMITT: That's what we'll shoot for first. CHAIRMAN STRAIN: Good. The 1st is a short agenda. We'll be done in the morning with the public hearings. We could roll right into the school board issue. MR. SCHMITT: Correct. CHAIRMAN STRAIN: Okay. So I need a motion that -- well, first of all, do we need to repeal the prior motion that we made, or do we just make a new motion that overrides it? MR. KLATZKOW: You can just make a new motion. CHAIRMAN STRAIN: Okay. I need a new motion that we continue today's regular agenda item of the school board concurrency to next Friday following the AUIR meeting. COMMISSIONER ADELSTEIN: So moved. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by Commissioner Vigliotti. Any discussion? (No response.) CHAIRMAN STRAIN: All in favor, signifY by saying aye. COMMISSIONER KOLFLA T: Aye. Page 28 October 18, 2007 COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER TUFF: Aye. CHAIRMAN STRAIN: Okay. Motion carries. Anybody opposed? (No response.) CHAIRMAN STRAIN: Okay. Now, I need a motion to adjourn today's meeting or continue -- yeah. Well, we just made a motion to continue, so we're done. COMMISSIONER ADELSTEIN: Yep, we're done. CHAIRMAN STRAIN: Thank you. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5:25 p.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, CHAIRPERSON These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY TERRI L. LEWIS, NOTARY PUBLIC. Page 29