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BCC Minutes 10/30/2007 S (LDC Amendments) October 30, 2007 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, October 30, 2007 LDC AMENDMENTS LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board( s) of such special district as has been created according to law and having conducted business herein, met on this date at 5:05 p.m., in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Jim Coletta Tom Henning Fred W. Coyle Donna Fiala Frank Halas ALSO PRESENT: Joe Schmitt, CDES Administrator Catherine Fabacher, LDC Coordinator Susan Istenes, Zoning Director Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS ";\ LDC AGENDA October 30, 2007 5:05 p.m. SPECIAL MEETING NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD 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. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF Page 1 October 30, 2007 CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE A V AILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. INVOCA nON AND PLEDGE OF ALLEGIANCE 2. The BMUD amendments, the GT MUD amendments, and the heliports 3. The New Amendment for the helistop, spot, stop 4. The Outdoor Serving Area with outdoor music, outdoor entertainment permits 5. ADJOURN Page 2 October 30, 2007 October 30, 2007 CHAIRMAN COLETTA: Ladies and gentlemen, would you please take your seats. We're going to begin this meeting. Would you please stand. We'll do the Pledge of Allegiance. Commissioner Coyle, would you lead us. (The Pledge of Allegiance was recited in unison.) CHAIRMAN COLETTA: Okay. Ladies and gentlemen, welcome to the Land Development Code amendment 2007 cycle one? MS. F ABACHER: Yes, sir. CHAIRMAN COLETTA: Yes. MS. F ABACHER: Second hearing. CHAIRMAN COLETTA: Fine. And what sheet are we on? ORDINANCE 2007-68: ORDINANCE AMENDING ORDINANCE NUMBER 04-41, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE COMPREHENSIVE REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA- ADOPTED W/CHANGES MS. FABACHER: Okay, Commissioners. Good evening. We have really an easy agenda tonight. We have just basically three things. The BMUD amendments, the GT MUD amendments, and the heliports. I'd like to begin on page 21 in your blue book with the BMUD amendments to the Bayshore mixed-use district overlay. And Jean Jordan's here to kind of refresh you. She came before us once before. MS. JORDAN: Good evening. For the record, Jean Jordan with the Bayshore Gateway Redevelopment Agency. I was before you on October 16th with these amendments. Basically what a lot of the amendments do for the overlay, they're clarification purposes. But there is one major change in here that I want to bring to your attention, which I did previously. Page 2 October 30, 2007 What this -- one of the amendments is allowing -- if you'll go to page 48. It's number 2. It reads, property developed in conformance with underlying zoning, C4 and C5 zoning classification, are restricted to building setbacks as per section 4.2.01 (A), table 2.1. What this does is allow properties that are currently zoned C4 and C5 to develop pursuant to their underlying zoning. This table refers you back to the Land Development Code, which are the regulations for C4 and C5. This provision allows for properties that want to opt out of the overlay and not do mixed-use to do so. There are many properties out there which just can't do a mixed-use development, so we wanted to allow them that opportunity. And this is one of the major changes, which is both in the BMUD and the GT MUD. Do you have any questions? CHAIRMAN COLETTA: Any questions from the commissioners? No, I think you -- Commissioner Fiala? COMMISSIONER FIALA: I'll just make a comment. I think that's a great idea, that way, as you redevelop in that area, you'll give them opportunities to do something other than just mixed-use. I think that's a very good thing to do. I'm for it. COMMISSIONER COYLE: Do we have speakers? MS. F ABACHER: Yes. Commissioners, may I say this? Jean has done this before. The changes we're making in the BMUD are identical to what we're doing in the GT MUD, so this -- what she's answering applies to both overlays. And we do have one speaker. Mr. Larry Ingram, if you'd like to come up now. MR. INGRAM: It's getting harder and harder to get out of those chairs. I'm going to give you an exhibit that may explain what my concern has been, and maybe what is proposed takes care of. MS. F ABACHER: Mr. Ingram, the court reporter needs one. Page 3 October 30,2007 And if you have an extra copy, I'd like one too, if you don't mind. MR. INGRAM: When I get through. MS. FABACHER: All right, okay, good. You're limited. Because we could put it on the visualizer, see, and then everybody could see it. MR. INGRAM: Oh, okay. MS. FABACHER: If you give it to Susan. MR. INGRAM: I have another __ MS. FABACHER: Yeah. If you give that to Susan, we can all see what you're talking about. Right there. Thank you. MR. INGRAM: My name's Larry Ingram, and I own a piece of property on Bayshore Drive and currently have pending with Collier County a Bert Harris Act claim. My concern with this amendment is, it was my understanding that it was to resolve one of the issues that I had with the district. If you will look at what's on the board -- whoops, okay -- what's on the board there, this piece of property is approximately 188 feet by, I think, 735 feet. It's been shown on the county zoning maps as a PUD for more than 20 years. I put in all of the parking, all of the drainage to build four buildings on the northern property line. And this -- the Bayshore Gateway Development plan would require that I shift the second two buildings to the front property line, and this creates a number of problems. First of all, it puts the buildings in the middle of an already completed parking lot. There's then no place for the water to go because the drainage flow is supposed to be shifted from north to south, to south to north, which then results in an issue of where does the water go. Additionally, because under the plan the buildings have to be shifted to the southern property line, it increases the elevations of the buildings which means that the buildings then have to have elevators, Page 4 October 30, 2007 whereas, if they're on the northern property line, they do not have to have elevators. A third issue has to do with fire control. As the buildings in the plot plan is presently configured, there's no problem with the fire code. When you shift those second two buildings to the front property line, there is insufficient room for a fire truck, and so you have to take off about 60 feet on one of the buildings to permit a fire truck turnaround. So the bottom line is, if I had to move these buildings to the front property line, it is about $1.2 million in loss that isn't suffered if I can continue to develop with the buildings on the northern property line. And I had some concerns with the proposed amendments because I'm not certain that what is proposed solves the issue. CHAIRMAN COLETTA: Okay. Commissioner Henning? COMMISSIONER HENNING: Mr. Ingram, do you have an approved site plan for these extra two buildings? MR. INGRAM: The original site plan was approved by the county when the first two buildings were built. COMMISSIONER HENNING: And it didn't per -- the two other buildings proposed -- MR. INGRAM: Yes. COMMISSIONER HENNING: It did have it on there? MR. INGRAM: Yes. COMMISSIONER HENNING: Oh, I'm not sure -- then we'll have to get some clarification on whether any amendments would affect your property if you have an approved site plan. MR. INGRAM: Well, the site plan -- the development plan is shown on the county zoning maps as a PUD, but the county staff tells me it's not a PUD. COMMISSIONER HENNING: Okay. So if this property has an approved site plan with these two future buildings on there, does it __ is it vested? MS. ISTENES: Susan Istenes. I believe Mr. Ingram received a Page 5 October 30,2007 zoning verification letter from us probably about a year ago asking the same question, and I believe the result of that was that the site plan __ what was there and built was acceptable, but I believe what was unbuilt -- because the whole site wasn't built out -- when it was finally built, had to conform to current codes. I believe I'm summarizing that accurately. I can pull it up on email and read it to you if you wish. COMMISSIONER HENNING: I don't think that's necessary, if that's your opinion. MR. KLATZKOW: And I think Jean could probably clarify this. It was my understanding that these amendments were done partly with Mr. Ingram in mind and that he doesn't have to build it with the buildings up front, but he can build it under these regulations as initially set forth in the Site Development Plan. And don't -- defer to Jean on that. MR. INGRAM: Sure. MS. JORDAN: Hi. Again, for the record, Jean Jordan. Actually, we had been considering this amendment prior to the Bert Harris Act. There was some other areas such as Grecian Gardens was having problems conforming when they went to -- I mean, they wanted to make the building better, but yet they couldn't conform with the overlay, so it was creating difficulties for them. There is another man who had came to us, so there were several people who owned property in the neighborhood that had came to us and saying they were having a problem with this, and that's the reason we decided to look at it. Now, what he's presenting to you now is accurate if the overlay was not amended; however, with the overlay now being amended, he can develop pursuant to his underlying zoning, which is C4, however, that would be in the zoning department's purview because they would be the ones who would have to review the plans and everything, but he no longer has to adhere to the overlay and can develop pursuant to Page 6 -_.,..,.._--_.~,..._-_.__..- October 30, 2007 the C4, which doesn't have this front build-to line. But the exact placement of his buildings would have to be up to zoning and what the C4 regulations are now. COMMISSIONER HENNING: Okay. CHAIRMAN COLETTA: Commissioner Fiala? COMMISSIONER FIALA: So let me see if I understood what you just said. So if we approve this -- and I remember you talking about a couple of those other buildings __ MS. JORDAN: Yes. COMMISSIONER FIALA: -- because I drop into their office every once in a while, and she was talking about the Grecian Gardens and so forth and the different buildings, so I know it's been in the process for quite some time, and I'm glad to see it's coming forward. And what you say also is this then helps Mr. Ingram to keep his buildings where he had originally planned to build them; is that what you're saying? MS. JORDAN: Well, it allows him to adhere to the underlying zoning, C4. I don't know personally if from 1983 to date if those setbacks and the regulations have changed, so that's something I haven't researched. So you know, whether this setback may be different than the other, I can't really say for sure. That's why it needs to be researched. But he would not have the problem of having to go by the overlay. It would be pursuant to the C4, which was his original zonmg -- COMMISSIONER FIALA: Okay. MS. JORDAN: -- when he put in for the Site Development Plan. COMMISSIONER FIALA: Susan, could you help me understand this a little bit better, too? MS. ISTENES: I'm hesitant to answer your question only because I don't want to imply that whatever Mr. Ingram is planning to do on his site in the future will comply with code, so that's something we have to evaluate when he applies for a Site Development Plan and Page 7 October 30, 2007 we go through the staff approval process. But I would concur with Jean, I think what she's saying is that basic -- that this amendment basically puts him back where he was before the GT MUD overlay, if that's of any help to you. COMMISSIONER FIALA: Now, Mr. Ingram, does that clear it up for you then? MR. INGRAM: I have to give a qualified yes. As I said earlier, my property is shown as a PUD. It can only be developed one way. We -- I say practically one way because we have all of the infrastructure in. I'm handling the water runoff from the Gulf Gate Shopping Center as part of my site development. And if I had to move those buildings, then there's no place for the water to go. And-- COMMISSIONER FIALA: But apparently this then allows you to continue to build is what I'm understanding. MS. ISTENES: It -- a couple things. It's not a PUD. I think what may be confusing is there was a provisional use that was granted on the site, and a provisional use we now call a conditional use. But way back then it was called provisional use, and that's abbreviated pu. So perhaps there's some confusion there. I'm just assuming. MR. SCHMITT: C4. MS. ISTENES: And it is C4 right now, so he'd have to comply with C4 zoning regulations as well as current water management regulations. So I can't say ifhe could develop the way he planned to back in the '80s. I don't know that without looking at a site plan and engineer drawings. COMMISSIONER FIALA: Okay. MR. INGRAM: Well, the site plan is here. CHAIRMAN COLETTA: Yes, Jeff. MR. KLATZKOW: And staff will correct me in have this wrong. My understanding of what's happening is this. When this LDC amendment originally came before you it created a problem for Mr. Ingram. He would have had to have moved his buildings. What Page 8 October 30,2007 we're doing now is we're amending that to remove that issue so that he no longer has a problem based on the overlay. Now, whether he has a problem based on other zoning ordinances we might have is a different issue, but that's not really before us right now. The only thing that's before us is the overlay, and my understanding is, we've amended it to remove the problem that Mr. Ingram had when we first passed it. Now, over the 20 years that this thing's been there, we've amended the zoning ordinances several times, so whether he can build the way he wanted to build, I don't know. But it's not because of the overlay. MR. INGRAM: Whatever requirements of the overlay that I relocate the buildings has been removed? MR. KLATZKOW: That is my understanding, and Jean can confirm for the record. MS. JORDAN: That is correct. This amendment will remove those and let him build per the C4, which is actually his zoning. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER FIALA: So now you have it. CHAIRMAN COLETTA: Oh, I'm sorry, Commissioner Fiala. COMMISSIONER FIALA: That's all right. So now you have it, Mr. Ingram. MR. INGRAM: Okay. Thank you. CHAIRMAN COLETTA: Okay. Mr. Coyle -- Commissioner Coyle? COMMISSIONER COYLE: Well, I'm not really sure. I'm still confused about this. You're saying that he can develop under C4 zoning, but we're not saying what the setbacks are and you're specifically saying that you're restricted to the building setbacks in section 4.02.01 (A) and table 2.1. Is there a way of determining if those setbacks will require a relocation of those buildings? Do we know that? Page 9 October 30, 2007 MS. JORDAN: I'm sorry. I didn't know who wanted to answer. Too many people in the pot right now. Actually that table refers to the LDC, which will take you to the table for C4 and C5 zoning for all the setbacks and everything. As far as if he could build this exact building, I think -- I mean, I'll see if Susan and them concur. He would actually have to submit that to them to see if it was in compliance now, which -- before it was submitted and they went pursuant to the overlay so, therefore, it said he wasn't in compliance, and so now he needs to submit it to see if he's in compliance with the C4 regulations before they would know. COMMISSIONER COYLE: Okay. Let's take it step by step. If it is a PUD, ifMr. Ingram can demonstrate that it is -- was a PUD and it was approved originally with the original configuration, what can he do? Can he build it in accordance with that particular approved plan? MS. ISTENES: Yes. COMMISSIONER COYLE: He could? MS. ISTENES: Yes. COMMISSIONER COYLE: So if it is a PUD, he can do it exactly the way he planned to do it back whenever he had built the other two buildings. If it is not a PUD, he has to build in accordance with current zoning. MS. ISTENES: Correct. COMMISSIONER COYLE: But there's nothing about the current zoning that requires that he relocate the buildings? MS. ISTENES: Correct. COMMISSIONER COYLE: Is that true? Okay. Now, let's suppose Mr. Ingram wants to build building C and D and the setbacks are different than they were back when he built buildings A and B. He will have to conform to the new setbacks. Will that conformance to new setbacks cause a relocation of the buildings? Is that a likely possibility? MS. ISTENES: I really can't answer it at all. Page 10 October 30,2007 COMMISSIONER COYLE: Okay, all right. MS. ISTENES: Not without evaluating the current approved site plan and then what he proposes. COMMISSIONER COYLE: Okay. But as the county attorney has pointed out, that's not what we're considering today. MS. ISTENES: Correct. COMMISSIONER COYLE: So for today, at least, we have removed a requirement that would require Mr. Ingram or any other similarly situated property owner from relocating a building. MS. JORDAN: That is correct. COMMISSIONER COYLE: Okay, all right. And we'll just have to muddle through the other things a little bit later on, right? Okay. MS. ISTENES: Correct. CHAIRMAN COLETTA: Okay. Commissioner Fiala, did you have something you want to address ofMr. Ingram? COMMISSIONER FIALA: Yeah. I was going to address the PUD and sunsetting, but I think I'm going to just let it lie right now. Let them discuss that later on. CHAIRMAN COLETTA: And I think Commissioner Halas wants to talk about it. COMMISSIONER HALAS: Yeah. I believe that -- didn't you say, Susan, that this was not a PUD, but a conditional use? MS. ISTENES: Correct. COMMISSIONER COYLE: Provisional use. COMMISSIONER HALAS: Provisional use, okay. MS. ISTENES: Provisional use. On December 1, 1981, a provisional use was approved to allow a shopping center in what was a general retail/commercial zoning district that would exceed 25,000 square feet of gross floor area on the ground floor, and then in '82 the zoning code was amended to change it to C4 with no minimum square footage limitation for shopping centers. MR. INGRAM: One of the issues was, at the time I started this Page 11 October 30, 2007 project, all projects of this size required approval by the Board of County Commissioners. Subsequently, the code was changed so it did not require the approval of the Board of County Commissioners. MS. ISTENES: Right. That would be the provisional use requirement that was changed in 1982 to no longer require a provisional use for buildings of that size. CHAIRMAN COLETTA: Okay. Anything else to add to this subject? Thank you very much, Mr. Ingram. MR. INGRAM: Okay, thank you. CHAIRMAN COLETTA: Fine. So today you're looking for __ do we have to vote these -- MS. FABACHER: We're ready to vote today, Commissioner. COMMISSIONER FIALA: I make a motion to approve. COMMISSIONER HENNING: Second. CHAIRMAN COLETTA: A motion by Commissioner Fiala for approval, a second by Commissioner Henning. Any other discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMANCOLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: And the ayes have it, 5-0. MS. F ABACHER: Excellent. Thank you, Commissioners. Our last -- our next and last is going to be the amendment to allow the heliport, or the helistop. Page 12 October 30, 2007 MR. SCHMITT: Catherine, excuse me. I want to make sure on the record, both are voted on. We had one vote. MS. F ABACHER: Oh, okay, thank you, Joe. Yes, I guess we need to have another vote on the GT MUD as a separate -- remember I said that the BMUD is exactly the same as the GT MUD, the changes. So I believe Joe's right, we need to vote on the GT MUD. CHAIRMAN COLETTA: Do I hear a motion? COMMISSIONER FIALA: Yes. I make a motion to approve the other MUD. COMMISSIONER COYLE: We didn't vote on the first one. CHAIRMAN COLETTA: Yes, we did. You sort of nodded off for a second. COMMISSIONER COYLE: Okay. Senior moment. CHAIRMAN COLETTA: We have a second by Commissioner Coyle. Motion by Commissioner Fiala, second by Commissioner Coyle. Any other discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: And for anyone that's wondering, he did not nod off. I was just trying to be sarcastic for a moment. COMMISSIONER COYLE: Yes, I did. MS. FABACHER: All right. Okay, thank you, Mr. Schmitt. ***Okay. The next one, and our final amendment tonight, will be the public -- the new amendment for the helistop, spot, stop. I'm Page 13 -___~M.___,__.._n__._____,~_.^ October 30, 2007 sorry . COMMISSIONER COYLE: What page is this one? MS. F ABACHER: This is on page -- it's on -- where'd I put it? MS. ISTENES: I think it's 5. MR. SCHMITT: Page 5. oMS. F ABACHER: Thank you, Susan. It's on page 5. CHAIRMAN COLETTA: The last time this was before us, we had some issues that you were going to address, that were going to be addressed. Maybe you might be able to bring us up on that and we could ask questions, go from there, unless you want a full presentation. We can do that also, but we've already had it once. Okay. MR. BROOKER: Thank you. For the record, Clay Brooker of Cheffy, Passidomo, Wilson, & Johnson. I did give a full presentation. I don't know whether it was a week or two ago. I've lost track. And I spoke to Commissioner Coyle on the phone very briefly and tried to get him up to speed as well. The issue that was raised, I believe, primarily last time, or the first hearing, was concern about another Everglades City Airport type of situation where we wouldn't -- the county would not be able to make a heliport or abandon a heliport or helispot -- helistop __ Catherine, you're in trouble. You're getting me talking about helispots now. We went through about three hours of Planning Commission trying to figure out the difference between a helispot and a helistop. What's in the code today is helistop, and I want that to be very clear, S- T, as in Tom, O-P. At any rate, there was concern over once the county or once one of these facilities comes in, is it there forever in perpetuity and would there ever be any federal way, or the federal government come in and try to stop the county from revoking or moving on or changing the land use of that particular property. Page 14 October 30, 2007 And I believe Commissioner Henning was correct when he pointed out that the Everglades City Airport example was a little bit different because federal grant money was involved in that, in the development of the Everglades City Airport. And what we are proposing here today is very different because the only facility that's being proposed that does not come before you as a conditional use -- does not come before you as a conditional use -- is the private helistop. Everything else, heliports, public or private, come before this board for conditional use approval. So with regard to what we're now looking at is that one item of a private helistop, what are we going to do, and I believe the hypothetical was -- and this particular area, it's just east of the Naples Airport -- what happens if that area turns, in 25 years, to some luxury high-rise development area, which I believe we all think is unlikely to occur, but might as well think as far into the future as we possibly can. Number one, because the federal government, federal grant money's not involved with a privately owned helistop, the state government has a right to revoke the license to any private helistop that is initially granted. Mr. Simmons, who is the applicant here -- he's sitting in the yellow shirt in the crowd tonight. He's here with us -- he can abandon his helistop at any point in time. And I would suggest to you that in the unlikely event the area east of the airport becomes a luxury high-rise residential development and a developer comes along, that Mr. Simmons would probably bow to market demands and sell his property for a pretty penny. So the market would come into play in that sense. What the county can do, the county is not foreclosed from changing the regulations. So say in 25 years it does become an area where residential development is likely, again, a hypothetical, but in that case the county is not foreclosed from changing the regulations. Mr. Simmons and his helistop and his property in general would Page 15 October 30, 2007 become nonconforming, and Florida law -- both Florida law and your code, as it exists today, has restrictions in it already, the goal of which is to eventually eliminate that nonconforming use and to bring everything into compliance with the code. So we believe the existing law and the existing code regarding nonconformities, as well as just the market in and of itself, would give impetus to future changes if they are to come about in 25 years or so. I believe that was the primary issue that was discussed. I think I've answered that question or tried to address it the best I can. I'll just remind you, again, that 25 of your advisory board members have seen this proposal. Not one has voted against it. There have been four public hearings, actually five, if you count the first hearing before this board, several hours of vetting of this, there have been revisions. The staff acknowledges this is an improvement to the code. No one has yet from the public spoken in opposition, even when a community like Grey Oaks, which is relatively nearby, is notified of it. They have no opposition to it. So we believe under those circumstances, we would ask that __ this is a good proposal, and we would ask that you defer to the collective wisdom of your advisory board members and vote this into the Land Development Code. CHAIRMAN COLETTA: Before we go to Commissioner Henning, I'm going to ask the county attorney, what do you put into this? Are we -- how exactly would some future commission be able to interject themselves if they wanted to as far as this heliport 10 years from now, 20 years from now or whatever? MR. KLATZKOW: Well, we just had Mr. Ingram here, you know, complaining about a change in the zoning ordinances and talking Bert Harris and all that sort of stuff. So that -- I'm going to assume Bert Harris is going to be around 10,20,30 years from now, and we'll have that same conversation with Mr. Simmons or his successors if we, I imagine, tried to do that. Page 16 October 30, 2007 So I wouldn't -- you know, I wouldn't take too much solace in the fact that we can change our regulations 10, 15 years down the road and do away with the problem. I don't think it's as easy as that. CHAIRMAN COLETTA: My only concern was the limiting factor of the surrounding businesses if they wanted to do something. That was the only question I brought up last week and -- but let's go ahead with the discussion and go to Commissioner Henning, then go to Commissioner Coyle, then we'll come back to you, Jeff, if you've got something else. Commissioner Henning? COMMISSIONER HENNING: Well, if the industrial park becomes residential, high density residential, that use is going to go away anyways. You have to rezone it to residential. It's not allowed in industrial zoning. And if the area, let's say the airport, turns into high residential, right across the street you have uses. I mean, you can have a cement plant right across the street in the industrial park. So it's, you know, buyer beware if you have a use right across the street that changes, and you have some of what some would say would be offensive uses across the street. The problem is, those offensive uses, in some people's eye, is there now. So I mean, I -- the biggest thing that I can't get over -- and I'm glad that our staff aired on caution on this. Is you can have a commercial heliport or pad at this industrial park, but you can't have a private one. Even though there is no SIC code for private one, there is one for a commercial operated one. And what we have is, the restrictions or setbacks for either one of those is going to be narrowed away from the residents. So just to give you an example, a commercial lot on Radio Road right now can have a commercial helipad. MR. BROOKER: It would be an industrial lot, because nothing is permitted in commercial that we're talking about here. Page 17 October 30, 2007 COMMISSIONER HENNING: Right, yeah. But you have industrial right along that airport -- or that Radio Road corridor, and right across the street you have -- so it's protecting the residents more than what we have now. I don't see where -- at least I don't have a problem with the request. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: This process bothers me a lot. It's not as simple as people think it is. And I'm searching for a public benefit here, and I don't see it. It's not just the process of putting a helispot or a helipad at a business location. You can't contain the helicopter at that location. It's going to go elsewhere. And when it goes elsewhere, it's going to be flying very low. As a matter of fact, the altitude restriction is about 2,000 feet imposed by the FAA, and it is very difficult to get above that level anywhere within five miles of that airport. There is going to be significant noise generated by a helicopter taking off and going in any direction from there. Now let's presume that we start having these helispots created. Naples Municipal Airport is one of the busiest small general aviation airports in the nation. There are a lot of situations where we're mixing high-speed aircraft with low-speed training aircraft. That is a bad thing. We have students who are training at Naples Airport who speak English as a second language, and they don't speak it well. I can attest to that. I've been flying for a long, long time. You're going to have to have corridors to approach and depart these heliports. You just can't let helicopters fly wherever they want to fly because ofthe traffic pattern at Naples Airport, and then you're influenced by the communities over which you're going to fly. What corridors are going to be identified to get those helicopters out of the area without causing severe disturbance of the people who live there? Page 18 October 30, 2007 Helicopters make a lot of noise. The City of Naples dealt with one request for a helipad by requiring that the corridor be off coast. They have to fly off coast, fly some distance off the beach, and go to Keewaydin Island where the helipad is located. Even that creates a significant amount of noise. If you think this bar and sports grill that we talked about before caused problems with noise, you just wait till you start hearing people complaining about helicopters flying over their homes every day, or maybe even a couple times a week. There was very serious opposition to helicopter training that was being conducted at Naples Municipal Airport several years ago because they would hover, they would practice approaches, they would practice landing, they would depart, enter the traffic pattern, come back around, low altitudes making lots of noise. People get tired of that. So I don't see the public benefit here, and I don't see the compelling reason to start creating these helispots in commercial areas or anywhere else, quite frankly. I mean, in this particular case the airport is a four- or five-minute drive away. You know, what is the compelling reason to have helicopters coming and going from some spot over in the commercial area? I just don't get it. So that's where I stand with this. CHAIRMAN COLETTA: Yeah. Commissioner Coyle, for the benefit of those that aren't on the dais here, in the audience, in the listening audience, would you state your qualifications as far as experience with aircrafts? COMMISSIONER COYLE: Well, I've been flying for 55,52 years. I have ratings as a multi-engine instrument instructor. I have flown thousands of hours in all types of single-- and multi-engine aircraft. So I've been flying a long time. I've have a lot of -- lot of take-offs, and not nearly as many landings as take-offs. CHAIRMAN COLETTA: I don't know if I want to go there. Page 19 October 30, 2007 COMMISSIONER COYLE: But -- that's because I had to jump out of airplanes, so -- but in any event, I understand this problem. I have worked with the Naples Airport Authority since 1995 in noise abatement issues. I understand the seriousness of the issue and what measures have to be taken to address them. So I have a long history in that, and I was instrumental in helping the Naples Airport ban stage one jets at Naples Airport. It's the first circumstance in history that stage one jets were banned from general aviation airports. But in any event, I have been doing this a long, long time, and I really don't see the public benefit here. CHAIRMAN COLETTA: Thank you, sir. Commissioner Halas, then Commissioner Fiala. COMMISSIONER HALAS: Yeah. Wasn't -- was this aired? I believe in the first presentation, you said it was aired with the Naples Airport. MR. BROOKER: Yes. We talked with Ted Soliday, and he has no objection. COMMISSIONER HALAS: He has no objection? MR. BROOKER: Correct. COMMISSIONER HALAS: Okay. Was this also to tighten up the Land Development Code in regards to helicopters, heliports; is that my understanding also that we discussed in the first meeting? MR. BROOKER: Yes. The existing code allows what's called transportation by air in the industrial zone as we sit here today. That classification of use, if you look up the SIC codes, allows everything that you can imagine that transportation by air sounds like it includes. By way of example, air courier services, ambulance services, commercial passenger travel, 24/7 on-the-hour scheduled or non-scheduled travel by helicopters. So that's one of the reasons why -- what we are proposing to you will tighten the code because everything -- contrary to existing code everything is going to come before the -- before this board for conditional use approval except for Page 20 October 30, 2007 the most -- the least intense use out of all of those classifications of uses, which is a privately used helistop. And so our argument would be, if you're in the industrial zoning district, which is the most intense district this county has in terms of noise and everything else that goes along with an industry, what we are proposing is a tightening of the existing codes. COMMISSIONER HALAS: County Attorney, if this passed and it does provide a problem with the citizens in the surrounding area, even though they're a mile or so away from where this -- helistop, is that what you call it? MR. BROOKER: Helistop. COMMISSIONER HALAS: -- helistop is located, can we immediately rescind this portion? MR. KLATZKOW: No, because he's doing this as basically a permitted right. You'd have to change this to a conditional right and then put those conditions in there. COMMISSIONER HALAS: That's not cool. I think we need to find some way that we can protect the citizens in case it does become a major problem, major concern. CHAIRMAN COLETTA: Commissioner Fiala? COMMISSIONER FIALA: Yes. It's my understanding also that once this would be approved that everybody would have that same right, say, for instance, at any part of the industrial section; is that correct? MS. FABACHER: Not any part. MR. KLATZKOW: Well, it would be anyone trying for a private use helistop would have that right, ma'am, yes. COMMISSIONER FIALA: Great. Right, okay. MR. BROOKER: In may clarify, as long as you're 1,500 feet from any residential district. So not every industrial zone lot owner is going to have the right to do this, which exists today. So we are taking that right away from a tremendous number of property owners Page 21 October 30, 2007 and we're trying to build into the heart of the industrial zone where this could even occur to begin with. COMMISSIONER FIALA: When you have a private helicopter, do you have to file a flight plan or do you not? MR. BROOKER: You don't necessarily have to file a flight plan. COMMISSIONER FIALA: Okay. MR. BROOKER: A lot of people do. And I'm a pilot as well, but not near the level of Commissioner Coyle. But a lot of pilots -- and most flying -- Mr. Simmons will be flying with a flight plan filed. Regardless of whether you file a flight plan, you're going to be in constant contact with Air Traffic Control at Naples Airport at least with respect to Mr. Simmons's property location. So the Air Traffic Control would have all -- would have complete supervision of where that helicopter is flying. COMMISSIONER FIALA: One my concerns is with EMS being right there at the airport and their helicopters and the sheriffs office, and they're building a bigger and better place, and they have their helicopters, and at least they're all on the airport property, and there's some control there, but maybe Mr. Simmons would only be one, but then all of a sudden when you start dotting them around -- I'm really very, very concerned with safety of the businesses. You know, we saw -- we've seen airplanes go down before right there at the airport. And I am concerned about that. If they're -- I mean, certainly they've taken off from the airport, but if you have them spotted around -- well, I'm just very concerned. MR. BROOKER: Well, remember what state law allows is for the county to get involved in the zoning restrictions. The county cannot get involved, is precluded by state law, from getting involved in actual flight regulations. That is preempted by the state and the federal governments. And what we're proposing is just the first step of an approval process. Once we apply all the residential setbacks, we have to go to Page 22 October 30,2007 the state department of transportation and the FAA and go through a comprehensive evaluation to ensure safety, and that's where the public health, safety, and welfare are taken in account, advertisements in the newspapers required, notices are required. Those experts come in and make sure that what that location that you are proposing is, in fact, safe. COMMISSIONER FIALA: And I have no problem with Mr. Simmons. The thing is, I have a problem with the ripple effect afterwards, and I'm dealing with that in my head. Thank you. CHAIRMAN COLETTA: Thank you. Okay, Commissioners, what would you like to do? All at once. Commissioner Coyle? You moved your lips. COMMISSIONER COYLE: I just think the staff needs to give some more thought to this. You know, it's not like we're restricting this impact to this one site. You know, it's going to be spread around all over the place, and trying to control that. There are -- there are residents who'll argue that if there are regular aircraft flights above their residences and communities that their airspace is being violated. There are cases where the government and/or airports have compensated people for their air rights. They actually lease the air rights to -- to allow for approaches and departures from airports. So they do things like that. And there are people who will make an argument that if you're flying over my house creating a lot of noise, you're violating my rights, and you're going to get people who will file those kinds of complaints. They are people who want to move the Naples Airport for that very reason. They're -- airplanes are flying over their homes and they're creating a lot of noise. And the fact that the airport was there first doesn't really seem to make much difference. The county was wise. The county airport was wise in Marco Island when they got surrounding communities to write into their sales Page 23 October 30, 2007 agreements that there was an airport there, there would be airplanes flying over, and that is the way you remove people's rights to file actions against you for making noise with airplanes. We haven't done that sort of thing here. And Mr. Brooker is correct, nobody has objected to this and nobody's going to object to it until that first helicopter flies over their house, and then they're going to be mad as a bunch of angry bees and they're going to wonder why we permitted this without properly understanding the impacts. So I think we need to be a bit more careful, move a little bit slower, and see if we cannot find a better way to accomplish what is permitted by federal and state law. MR. SCHMITT: Commissioner Coyle, I just -- for the record, so you understand -- and you were not here for the first reading. I recognize that. This is a private petition submitted by the applicant. We've worked with the applicant and Jeff in removing our concerns on this, but just to recognize that this is a private petition. It was submitted and -- written and submitted by the applicant. COMMISSIONER COYLE: Well, see, if it were just one, I wouldn't have a problem, you know. One's not going to be disastrous. It's not going to cause a problem. I mean, there are safety issues, of course. What's going to happen if a helicopter crashes out there in some of those businesses? You can't fly -- should not fly over schools. As a matter of fact, there's a Florida law that says, you can't have a -- an approach path for an air -- or a takeoff pattern that would -- that crosses over a school or other place of public gathering. Very few people are aware of that law. Even the City of Naples -- the Naples Airport Authority wasn't aware of it till 1997. But you have to exercise some caution about these things, otherwise, there can be a problem, and then we have to accept the responsibility for it. The problem is creating a policy which let's Page 24 October 30, 2007 anybody in these circumstances do it. That's the problem. And if -- and we're going to be faced with a problem of, if you approve it for one person, why do you disapprove it for the next person? That's always going to be a difficult issue. We have to develop the criteria that permits us to make those judgments, and I don't see those criteria in this draft. MS. ISTENES: Mr. Chairman, may I just comment just -- and I don't want to -- again, as Joe said, this was a private amendment submitted by the applicant, and we've worked through issues with the applicant that we saw as professional planners. My concern is that right now -- and I don't want to appear to be an advocate for this because I'm not. And we can even kind of leave this to a side. Just so I could let you know that our code is pretty weak when it comes to regulations concerning allowable uses that involve aircraft. And I will say that as a professional planner this does give me a little bit more assurance that at least there's some criteria in here that addresses this situation where the code just doesn't address it at all. So I just wanted to point that out to you. And I appreciate your comments, Commissioner Coyle. I was maybe going to suggest private use helistops. Number 4 on page 7 would be allowed as an accessory to a permitted. Perhaps, you might want to consider making that as a conditional use. That would be an option to consider, that obviously anytime anybody wanted to do this, would have to come before you in a public hearing, and then you could apply conditions to that if you chose to approve it. That might help mitigate your concerns. I just present that as something to think about as well as the previous comment. COMMISSIONER COYLE: Yes, I understand and appreciate what you're saying, and I think you're probably right. The -- I think there are other considerations that we need to give some thought to. So what would be staffs recommendation with Page 25 October 30, 2007 respect to doing something with this draft now? Would you recommend taking it back to tighten up some issues and then bringing it back for our consideration later, or would you feel comfortable proceeding as it is now and/or making some changes, like conditional use rather than accessory use now, and then make future changes to it at some later point in time? MS. ISTENES: Well, if you were inclined to support this today, based on your comments, Commissioner Coyle, I would suggest that you make private use helistops a conditional use rather than allowed as an accessory. That way you could at least be assured that any of these could not become established before they came to you through a conditional use process and were vetted through, obviously, public hearings, in front of the Planning Commission, and you all as well as neighborhood information meetings and that -- COMMISSIONER COYLE: And that makes it -- that makes it consistent with all other heliports of any type. They will all be conditional use. MS. ISTENES: Correct, correct. The challenge would be that because the code is pretty weak when it comes to specific criteria, like you mentioned you even felt this was fairly weak -- I don't want to sound threatening, but if something isn't passed, we go back to the way it was, which is weaker than this, and so -- MR. SCHMITT: Well, that's how we got here. MS. ISTENES: Yeah. MR. SCHMITT: Basically. MS. ISTENES: Essentially. I think we had that discussion at the first meeting. So there's a danger there. And then if you wanted us to take it to -- kick it to the next cycle, I guess I would ask that we make sure that staff has a very clear understanding of what your concerns are so that we could go back and -- if the petitioner wanted to continue to work on this, or whatever, we could address them accurately. Page 26 October 30,2007 COMMISSIONER COYLE: Do you see any risk in proceeding along those lines, Mr. Klatzkow? MR. KLATZKOW: Well, staff has taken a position that Mr. Simmons can't put in what he wants to put in at this point in time because it doesn't fall within the code, which is really why we're here, so that for this particular use, he can't do it right now, without a change in the LDC. So you could put the whole thing over to the next cycle, if that's what you chose to do. MS. ISTENES: I don't think he agrees with that position. I won't speak for Clay. So he would have other options, like to file an official interpretation, or something like that. CHAIRMAN COLETTA: I'm going to interrupt for just one moment. I just wanted to make a note. Commissioner Henning had to leave the dais because he has an obligation over at the elections office. He serves on the Canvassing Board, and tonight is the special election for District 101. COMMISSIONER COYLE: What would be your recommendation, Jeff? MR. KLATZKOW: I sort of agree with Susan in that we don't really have anything right now. I do like having this all as a conditional use, which would give the board the opportunity to take these one at a time and really consider the different circumstances involved in each one to put the conditional uses on there, and we can always tighten it up later with more specific criteria. COMMISSIONER COYLE: Then I would make a motion that we make the change on page 7 under paragraph 4A and change the word accessory to conditional use. MR. BROOKER: We don't agree to that. COMMISSIONER COYLE: And I would make a motion to approve the ordinance. MR. BROOKER: If I may interrupt. This is a private petition, and I believe we're entitled to a vote on what's proposed to you -- Page 27 October 30, 2007 before you today. If you are going to change that proposal, because we funded it, you'd have to have our approval. I know that basically would mean motion to deny, Commissioner Coyle. But may I make another suggestion. Ifwe were worried about a lot of helicopters flying around, I believe Commissioner Fiala at the first hearing said, why can't we just give this particular property their right to use it only? So maybe this is what you do. May I make a suggestion that you approve this now, allow Mr. Simmons to do what he's wanted to do on his property. You'd have one helicopter, one helistop, and in the meantime your staff is coming back to amend the code at next cycle, and by that time he has his approval so you've got the one helistop that went through. There are no schools around this area. Weare 1,500 feet from any residential area. No one from the public, including Grey Oaks, which is -- well, no one from the public at all, including direct notice to Grey Oaks, is here to complain. And that's why we -- we were conscious about the noise. The FAA regs look into all of that. They require an 8-to-1 take off ratio in terms of altitude, and they're going to take into account all of that, hospitals, schools, environmental, everything. That's what they do. So even if you grant this here today, we're not necessarily sure the FAA and the state is going to allow us to put this here because we have to go through a very extensive process. But what I would ask in the -- what I would contend to be fair under these circumstances, because if this is denied tomorrow -- Commissioner Henning, at the first hearing kept talking about Funky the Clown flying around in Immokalee on helicopters, tomorrow Mr. Simmons can submit an SDP for a commercial helicopter scheduled on the hour, 24/7 flights, and there's nothing the county can do about it. So we're tightening the code. We're not allowing that to happen anymore. Page 28 October 30, 2007 So I would -- I appeal to you from the sense of fairness that we've gone through this entire process and five public hearings now, this being the sixth, all the while with transportation by air being permitted as of right. And he is in the middle of the most intense zoning district in this county. So our position would be, if you're going to change it to a conditional use by a nod from the head of my client, he's not going to approve that. He's been through this long enough. CHAIRMAN COLETTA: Before we -- COMMISSIONER COYLE: Okay. CHAIRMAN COLETTA: -- go on your motion, let's go to the county attorney. We'll come right back to you, Commissioner Coyle. MR. KLATZKOW: This is your code. COMMISSIONER COYLE: That's right. MR. KLATZKOW: Okay. And, you know, you buy your ticket and you take your chances. You're before the Board of County Commissioners at this point in time. If -- whatever you want to do, this is your code. COMMISSIONER COYLE: That's exactly my position and my point. People just don't buy codes, you know. You don't pay money and get a code approved the way you want it written, that's why we're here. We're not potted plants. So-- MR. BROOKER: We withdraw the petition. COMMISSIONER COYLE: My motion stands. MR. BROOKER: The petition is withdrawn. MR. KLATZKOW: No. There's a motion on the floor. CHAIRMAN COLETTA: There's a motion on the floor. MR. BROOKER: It's my petition. MR. KLATZKOW: But you presented it to the Board of County Commissioners. Just because you don't like where it's going doesn't mean you can take it away at the final session. MR. BROOKER: That is incorrect, because I have withdrawn Page 29 October 30, 2007 land use petitions before this board when the vote is not going the way, so we can do what we feel is right because it's our property. And let me also add for the record, staff, from day one, has told us, they are not going to touch our petition in terms of trying to amend it unless we -- it is -- unless we consent to it because it is, in fact, our petition. COMMISSIONER COYLE: Okay. I've heard your argument. My motion stands. MR. BROOKER: We withdraw. COMMISSIONER COYLE: This was brought to us for a decision. We have determined we have a need for better control over this area. And my motion stands. CHAIRMAN COLETTA: I'll second your motion for discussion purposes. And with that, we go to Commissioner Fiala, and then we'll come to Commissioner Halas, and then go forward. COMMISSIONER FIALA: Actually, I was going to go and ask -- with Mr. Simmons, for instance, as I said before, I didn't have any problem with him. I figured by tightening this thing up and having conditional use for anybody else who would want to come through, that way then we've taken care of him but we don't have a flurry of people then coming forward as a right rather than a conditional use, and that was my question. You've really already answered it. And so I'll just rest with that. CHAIRMAN COLETTA: Commissioner Halas, then I've got a comment. COMMISSIONER HALAS: Yeah. The Federal Aviation Authority, will they approve something of this nature? MR. BROOKER: It remains to be seen. We have to go through an extensive process with them. They have their own studies, their guidelines. It's -- the FAA -- they call it a circular, advisory circular, is about two to three inches thick of regulations that we have to comply with, and that requires to notice -- to notify everyone around, including airports and anything they take into account, hospitals, Page 30 October 30, 2007 schools, that sort of thing. COMMISSIONER FIALA: EMS? MR. BROOKER: Sorry? COMMISSIONER FIALA: EMS and sheriffs office who also have public -- MR. BROOKER: Do they consult the EMS and sheriffs office? I can't answer that for certain, but I would imagine they would. I know, for example, the state law exempts all of their regulations for an emergency helicopter to land and evacuate someone -- COMMISSIONER HALAS: Question I have is, if there's complaints, does the Federal Aviation Authority, can they pull his permit? Does anybody know? COMMISSIONER COYLE: No. MR. BROOKER: They take into account -- COMMISSIONER HALAS: They can pull his permit? COMMISSIONER COYLE: No. COMMISSIONER HALAS: Federal Aviation Authority can't pull his permit once they -- COMMISSIONER COYLE: No. Traditionally they won't pull anybody's permit to do anything. Their job is to create more airports, not to create fewer. MR. BROOKER: But in the site location, in may -- in may jump in -- and I apologize if I interrupted, but in the site location approval process, they take into account and solicit input from the public, from the airports, from the government, from everyone, and make their determination of whether this is going to be approved in the first place, and that's the third approval we have to get. The second is from the state. CHAIRMAN COLETTA: Then, Mr. Brooker, if I may -- and I'm sorry, Commissioner Halas, if you're not done, I'll come right back to you. If I may, I heard what Commissioner Halas -- or excuse me -- Page 31 October 30, 2007 Commissioner Coyle said a short while ago about how these things can, after a period of time, like Naples Airport did for a while with the type one jet engines -- or jet engines that were finally banned, that it becomes a nuisance. Now, right now you don't have people from the local communities because they have no idea what they have to tolerate. We don't either. This is one of the unknown factors in why I keep bringing up questions, because I'm unsure about how the whole thing comes together. I'd be willing to go with a conditional approval with some stipulation that it's reviewed every five years or so just to make sure there isn't complaints, because we don't know what's going to happen down the road. And if the Federal Aviation Administration or Authority can overrule us, then so be it, they can. You know, I got to have a comfort level, and I just haven't had it through the whole process, you know, with the finality of the whole thing. Whatever we decided here was going to be it for this particular area. And if we could come up with some way to be able to control it in the future -- because we don't know what's going to happen as far as the demand for the residents around there, what they expect, and for -- to be able to go in there, set it up, and then people's complaints come in and we're helpless because it has to go to the Federal Aviation Authority. That doesn't work well, because people expect us to be able to interact with their problems. We call up and say it's a federal issue, they look at you like you're crazy. That's the only comment I wanted to make. We'll go back to you, Commissioner Coyle, and then hopefully we can take this thing to a vote. COMMISSIONER HALAS: I wanted to finish. CHAIRMAN COLETTA: Oh, I'm sorry. You're right, Commissioner Halas. I did tell you we'd come back to you, then go to Page 32 October 30, 2007 Commissioner Coyle. COMMISSIONER HALAS: What I don't fully understand is that, where this helicopter going to be staged at, it's only about a half a mile from the airport and why he couldn't stage it at the airport and we wouldn't be having this discussion. I understand that he's got a business and he might want to fly out, but it seems to me he could either take a motorcycle or a car or a bike or walk over to his helicopter. I don't understand. Unless there's something in the provisions with the Naples Airport that they won't allow private helicopters there. I don't know. MR. BROOKER: I don't know if -- COMMISSIONER HALAS: Okay. MR. BROOKER: I would doubt that the -- COMMISSIONER HALAS: That was my first -- that was a question I had the first time that we discussed this. And I just -- if it was like 10 miles away, I could probably understand it. But when we're only a half a mile away, that's still -- I'm saying to myself, why? It just doesn't -- just doesn't click right. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. I'll try to be very brief on this. But I'll just give you some history on the FAA and their noise complaint performance. When there was a lot of noise -- and there's not a lot of noise at Naples Airport nowadays, but when there was with stage one jets, people were very upset, and Naples Airport Authority finally decided they were going to try to do something about it. Now, stage one jets had been banned at every commercial airport in the entire nation for years. Probably for 10 years they had been banned, but they weren't banned at small general aviation airports. But they -- if they make too much noise for Miami Airport, why are they acceptable at Naples Airport? And that was the Naples Airport Authority's argument. Page 33 October 30, 2007 The FAA said, no, you can't do that. That's discriminatory, despite the fact they discriminated against them in the commercial airports, but they wouldn't let Naples Airport do anything like that, so Naples established their own ban. Naples -- the FAA cut off their grants, forced them to conduct noise studies that cost hundreds of thousands of dollars. They went through at least six years of litigations with the FAA and finally had to take it over the FAA heads and go to the courts, and the Court ruled in favor of Naples Airport. You're not going to get much help from the FAA if any of our decisions result in complaints from citizens. The FAA is not going to help you. That is not their job. So I don't think we'll get much help. So that's why we've got to be careful when we make decisions like this, because you never know when it's going to end. CHAIRMAN COLETTA: Commissioner Halas? COMMISSIONER HALAS: I need really some good direction from both staff and the county attorney. At the present time our Land Development Code basically says that if somebody wants to put a heliport up someplace, they can do it; is that correct, control -- MR. KLATZKOW: My understanding of the staffs position is that they cannot put a private-use heliport within the county, which is why we're here. COMMISSIONER HALAS: They cannot? MR. KLATZKOW: They cannot. COMMISSIONER HALAS: Okay. And that's anybody? MR. BROOKER: Can you distinguish -- can you distinguish what we can put there, please? MR. KLATZKOW: Yes. You can put in a commercial one at the present time. MR. BROOKER: As of right? MR. KLATZKOW: As of right. COMMISSIONER HALAS: As of right. Page 34 October 30, 2007 MR. KLATZKOW: But that's not why we're here. COMMISSIONER HALAS: That's right. MR. BROOKER: Sure, it is. That's exactly why we're here. Why we're here is we applied for a Site Development Plan about a year and a half ago or so, and it was initially -- and it showed a helipad on top -- in the industrial zone on top of one of his buildings on his property . Staff approved it. We started moving forward. All of a sudden, staff revokes it and says, we're just a little uncomfortable with the fact that there's a helipad on the building. We understood their comfort level was not all that great, so we came in and spoke to them and we explained that transportation by air is permitted. Commercial helicopter cargo/passenger, 24/7, unlimited, as of right, is permitted. Weare not proposing anywhere near the intensity of that use. COMMISSIONER HALAS: But they have to get it cleared through the FAA and the state and everything else, so -- MR. BROOKER: Of course, all of this has to go through state and feds. COMMISSIONER HALAS: What I'm saying is that the chances of something like that taking place, unless it was way out on the rural area -- MR. BROOKER: That may be -- that may be exactly true that because of the proximity of this property to the Naples Airport, the state and federal governments may have a problem with it. We don't know because we can't get there yet without the county writing a letter saying, here's our codes and they either comply or they don't comply with them because our codes are apparently up in dispute right now, what is permitted and what isn't. But I would suggest to you a, perhaps, opposite way of thinking is, a helipad close to an existing airport is much better from a sense of intensity of use and noise and the impacts of that than something out Page 35 October 30, 2007 in the middle of nowhere where you don't have stage two and three aircraft flying off at all hours. So that -- that's where we're a little bit surprised that we were -- so, to go back to the story, the context of why we're here, they revoked, we tried to explain to them our position, they, I think, acknowledged our arguments but still didn't feel comfortable enough to give us that SDP approval and asked us either to do an official interpretation, meaning is our private-use helistop included in transportation by air or not, which most likely would have resulted in an answer, no, and we would have been here anyway, or do a -- a privately funded Land Development Code amendment request. And so we elected to go this route to try to tighten the code up, help the staff out. I can tell you dozens and dozens and dozens of hours and a lot of money has been spent by my client looking at various codes, looking at the state requirements, the fed requirements, and looking at our code in trying to tighten it as much as we can reasonably but still give him the right we contend we have today. That's still up in dispute, I understand that. COMMISSIONER HALAS: Okay. Is this helistop, is it critical to his business? I mean, critical to his business, to him doing business? MR. BROOKER: I don't know. I mean, can you listen -- can Mr. Simmons himself answer the question? COMMISSIONER HALAS: Yeah, I want to -- CHAIRMAN COLETTA: Yeah. COMMISSIONER HALAS: I'm trying to make a decision here. CHAIRMAN COLETTA: Mr. Simmons, I need you to come over here to this microphone. And for the record, state your name for the record. MR. KLA TZKOW: Have you sworn in. CHAIRMAN COLETTA: We have to swear you in. Please raise your right hand. Page 36 October 30, 2007 (The speaker was duly sworn.) MR. SIMMONS: My name is Eugene Bernard Simmons. I'm a resident of Collier County, and I bought that property early in 2000/2001 with the idea of moving my business over there and increasing the business, and I wanted to have this ability to be able to get to various jobs and get to and from critical areas of Collier County on short notice, particularly during emergencies. Is it critical right now today? No. It's not critical this minute because there is no emergency; however, it would be a very huge asset to the process and -- the processes of Collier County as well as other private customers that I have that would become critical during points of -- or at times of emergencies. COMMISSIONER HALAS: So what type of business is this that it would be critical? MR. SIMMONS: It's -- first of all, I'm an electrical contractor, and we are into system integration and processors, system processors, which are computer controlled water plant, effluent, wastewater, and raw water recovery. COMMISSIONER HALAS: So I take it this helicopter is going to sit on a roof? MR. SIMMONS: Yes. COMMISSIONER HALAS: Is it going to be in an enclosure? MR. SIMMONS: We have not asked for an enclosure above it. COMMISSIONER HALAS: So what would you do with the helicopter if we were having a storm event? MR. SIMMONS: Tie it down. COMMISSIONER HALAS: Not on the roof though. MR. SIMMONS: Yes. COMMISSIONER HALAS: Wouldn't it be better to -- I'mjust trying to use some sense here. If you took it over to the airport and hangared it, put it inside of a hangar -- MR. SIMMONS: Well, if we had a category five storm coming Page 37 October 30, 2007 in or a very large storm coming in, we'd probably bring it down and put it inside the enclosure, the building that it's in. We're building a very strong concrete warehouse to keep the tools and equipment, the lift trucks and the drill trucks and the crane trucks inside during an emergency or during the storm. COMMISSIONER HALAS: My understanding is that this helicopter has a gross weight of 12,000 pounds; is that correct? Possibly? MR. SIMMONS: Possibly. It's -- that's -- very possibly. I'm making the helicopter pad to withstand that. The helicopter would probably have a gross vehicle weight -- gross vehicle weight of less than seven, but that's not what we're building it to. We're building it to a standard that is much stronger. COMMISSIONER HALAS: Okay. MR. SIMMONS: It would be much -- sized very, very similar to the EMS helicopter, which we are less than a half a mile from, and it flies around town, and I don't know of any complaints. I -- when we bought that property, I saw -- I read very carefully what we could and could not do, and that's been in my plan since day one since I came here, and I was very pleased that -- the fact that it is approved for air traffic in our industrial park, and that this was part of the big plan. COMMISSIONER HALAS: I know that when we fly the EMS chopper, that they do everything they can to avoid going over some residential areas because -- that are close to the airport because they have gotten complaints. MR. SIMMONS: Well, I actually talked with the Airport Authority before I went any further than the planning stage, before we got with the architect or the engineers designing the buildings. I've had actually appointments with the Airport Authority with Ted Soliday at least two occasions, and he was very happy about the fact that it was direct visual contact. There is no obstructions between this chopper and that control tower. It's directly VFR. And they -- we will Page 38 October 30, 2007 request permission to take off, we will request permission to land, just as if it was in the airport. COMMISSIONER HALAS: Okay. Thank you. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: I don't have anything more to say that's relevant here. I think we just need to get to the vote. CHAIRMAN COLETTA: Okay. We have a motion on the floor by Commissioner Coyle and a second by Commissioner Coletta. Any other discussion? (No response.) CHAIRMAN COLETTA: Seeing none -- MR. BROOKER: May I object for the record. CHAIRMAN COLETTA: Very quickly, Mr. Brooker, then I want you to sit down and -- MR. BROOKER: We withdraw. CHAIRMAN COLETTA: For the record, go ahead. Do you have something you had to add at this last moment? MR. BROOKER: I'm sorry? CHAIRMAN COLETTA: Did you have something you had to add on -- add for this last moment? You just interrupted me. What did you want? MR. BROOKER: I wanted to make it, for the record purposes, that we have withdrawn the application. CHAIRMAN COLETTA: Okay. MR. BROOKER: Thank you. CHAIRMAN COLETTA: For the record, that has been stated on there. Now the commission will make their decision on what they're going to do. And with that, all those in favor of the motion, indicate by saymgs aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. Page 39 October 30,2007 CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: And the ayes have it, 4-0, with Commissioner Henning doing his duty at the elections office as part of the Canvassing Board. Anything else before this board? MR. KLA TZKOW: Yes, but just for purposes of clarification, the motion was to add the conditional use to the private use helistop. COMMISSIONER COYLE: Yeah, paragraph 4. MR. KLATZKOW: Paragraph 4A. COMMISSIONER COYLE: 4A, first paragraph, fifth word. MR. KLATZKOW: I have a couple of housekeeping issues, if the board doesn't mind. At the -- and Joe, you may want to pipe in on this one. At the Planning Commission, we brought forward a -- an item for the LDC that was going to be scheduled for November 13th for you to hear dealing with staffs ability to review Site Development Plans and to ensure that everything was compatible. It also had a noise component as well. The Planning Commission unanimously voted that this matter be put onto the next cycle. They want to spend more time with it. They want it to go through more public hearings. They want it to go through more committee work. And I say this now because I don't know if you want to hear this November 13th. COMMISSIONER COYLE: Wait. This one that we just talked about? COMMISSIONER HALAS: No, sir. MR. SCHMITT: No, sir. No, sir. That's the outdoor seating, nOIse -- MS. F ABACHER: Outdoor serving. Page 40 October 30, 2007 COMMISSIONER COYLE: Oh, yes. MR. SCHMITT: -- issue. MR. MUDD: Page 9. CHAIRMAN COLETTA: If they're willing to spend time on it, I don't have a problem in the world. We get a much better product in the end. MR. SCHMITT: Basically the Planning Commission had a lot of concerns, mostly with ensuring that what is proposed gets properly vetted through the -- through the community and that the community has sufficient time to deal with what is being proposed. They just didn't want this thing rushed through because there are -- there will be impacts and certainly there are going to be unintended consequences, and they want to make sure that we get this thing out to the community, for the business industry, to the chamber and others, so that they can at least participate, render opinions or advise you on the issue, and that really was to three -- we had the three ordinances we were going to bring back to you. I'll call it the one that Jeff was working on dealing with more authority at the zoning director staff, the one that dealt with outdoor seating, and then what the outdoor seating morphed into was an issue dealing with amplified sound, amplified entertainment. So that's what the Planning Commission -- that's in your book and that's what they voted against as well. So I think it's in the best interests of all that we just -- we as staff get together, work with the community, and develop something that I think is -- can be -- bring back to you something that will be properly vetted through the community -- so Jeff, I think, you're asking -- MR. KLATZKOW: Yeah. In can get a motion that we put this over to next cycle. COMMISSIONER COYLE: So moved. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: Well, okay. We have a motion by Page 41 October 30, 2007 Commissioner Coyle and a second by Commissioner Halas. Commissioner Fiala? COMMISSIONER FIALA: Yeah. Just a fast thing. I think what we're doing here is so good and it's much needed, especially with many new projects coming on board. Even though we don't have this in our Land Development Code, will it be a guidance anyway to our staff so that when they are working with people, they can say, this is coming on board and, you know, the commissioners are going to want it, so and so, and this and this, to help them a little bit when they're -- when they're moving anything of this character? MR. SCHMITT: I can answer that. A guidance, yes. Mandate, without it being passed by the board in the LDC, it cannot be mandated, but certainly we will discuss this with any upcoming and future product to let them know that this is -- COMMISSIONER FIALA: That's good, because I think -- MR. SCHMITT: -- being contemplated. COMMISSIONER FIALA: -- it helps you guys. MR. SCHMITT: Yes. COMMISSIONER FIALA: I'm delighted to have it go before the Planning Commission and have them vet it. I just wanted to make sure it helped you guys along the way. Okay, thank you. CHAIRMAN COLETTA: Thank you, and thank God for the Planning Commission, or we would be here for hours and hours and hours. COMMISSIONER FIALA: I know. COMMISSIONER COYLE: We're here for hours and hours and hours anyway. CHAIRMAN COLETTA: Well, that's true, but that's another story . MR. KLATZKOW: Just one final matter, because the clerk raised this as an issue. If I can get a motion directing staff to transmit Page 42 October 30, 2007 CHAIRMAN COLETTA: Well, wait. We still haven't taken a vote on -- MR. KLATZKOW: Oh, I apologize. CHAIRMAN COLETTA: That's okay. Any other discussion on the motion at hand? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 4-0. MS. FABACHER: Excuse me. Could I clarify. This will then be the outdoor serving area with outdoor music, outdoor entertainment permits on page 7, and also the additional amendment that was scheduled to go on the 13th, correct? CHAIRMAN COLETTA: Does the motion maker agree? MS. FABACHER: They're both deferred to the second -- the next cycle? COMMISSIONER HALAS: Motion to approve. COMMISSIONER FIALA: No, she's asking -- MS. F ABACHER: Clarification. We're going to move both amend -- we have two amendment requests. We're going to move both -- defer both. I'm just asking for clarification. COMMISSIONER COYLE: So moved. COMMISSIONER HALAS: And it's on my second. MS. F ABACHER: All right. Thanks. CHAIRMAN COLETTA: And it was on your second, so that Page 43 October 30, 2007 takes care of that. Okay, now -- go ahead now. COMMISSIONER COYLE: Are we finished? MR. KLATZKOW: Just one more, and I was a little quick on the draw on this one. I apologize. If we can just get a motion directing staff to transmit these LDC amendments to Tallahassee, that would be appreciated. COMMISSIONER COYLE: So moved. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Coyle and a second by Commissioner Halas to transmit. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those -- COMMISSIONER HALAS: Oh. CHAIRMAN COLETTA: Mr. Mudd? Chair recognizes the county manager, Jim Mudd. MR. MUDD: Just want to get some specificity on your motion. You're going to transmit those -- COMMISSIONER HALAS: Approved. MR. MUDD: -- that were individually approved in your meeting. I just want to make sure, because the way you just did it, whatever was in that book went, and you have some things that you've continued to the next cycle. So only those things that you approved -- COMMISSIONER HALAS: The last two meetings. MR. MUDD: -- individually, in group, you're going to transmit. COMMISSIONER COYLE: Let me be specific about my motion. Those items that the Board of County Commissioners has approved over the last -- MS. F ABACHER: Tonight. COMMISSIONER COYLE: -- two meetings-- MS. FABACHER: No, tonight. Page 44 October 30, 2007 MR. KLATZKOW: Last two meetings. COMMISSIONER COYLE: Because we had some from the last meetings, too -- the last two meetings, the staff is instructed to forward to Tallahassee with recommendation for approval. COMMISSIONER HALAS: That's in my second. CHAIRMAN COLETTA: Okay. So we've got that clarified, and I thank everybody for their participation in that. And with that, any other -- COMMISSIONER HALAS: Vote. CHAIRMAN COLETTA: -- discussion? We're going to take a vote now; Commissioner Halas's insistence. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: Okay. And the ayes have it, 4-0. I thank you very much. And I think that's all the business before this group today. And with that, we're adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 6:28 p.m. Page 45 October 30, 2007 BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL /} .. JIMCO~ ATTEST:: .' DWIGHT E. ~ROCK, CLERK ~.,."".","""'sJt' ~ .... j .,." : " ,.' I'v .ttest as 0 S1gA4tare~1!,. i I These minutes approv)Xl by the Board on NWc2.vi\bev 'L1, 11;01 , as presented V or as corrected . TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 46