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CCPC Minutes 10/26/2007 LDC October 26, 2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, October 26, 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 at 11 :35 a.m. in SPECIAL SESSION at 2800 Horseshoe Drive, Naples, Florida, with the following members present: CHAIRMAN: Mark P. Strain Tor Kolflat Brad Schiffer Donna Reed Caron Bob Murray Robert Vigliotti Paul Midney (Absent) Lindy Adelstein (Absent) Russell Tuff (Absent) ALSO PRESENT: Jeffrey A. Klatzkow, Assistant County Attorney Joe Schmitt, CDES Administrator Randy Cohen, Comprehensive Planning Page 1 October 26, 2007 CHAIRMAN STRAIN: Okay. Welcome to the October 26th continuation of the LDC Cycle One meeting, and this one is on __ particularly on a LDC Section 10.31-32. Before we get going, the agenda today has only got one issue. We'll need to take roll. Will the secretary please do the roll. COMMISSIONER CARON: Well, Mr. Kolflat was here just a moment ago. CHAIRMAN STRAIN: He's coming back. COMMISSIONER CARON: Mr. Schiffer. COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Murray. COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Miss Caron is here. Mr. Strain. CHAIRMAN STRAIN: Here. COMMISSIONER CARON: And Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Thank you. There are no addenda to the agenda because it's only one item. I would -- as the chairman's report, which isn't really something necessary, I would like to comment that I'm concerned over the timing of this. Not in reference to only Mr. Brooker's concern from our last meeting, but the fact this just got to us a day or two ago, and I'm -- it bothers me that the public -- and this is a very impactful document. And I'm -- I'm concerned that the public may not have adequate time to review it, so with that said, Mr. -- MR. KLATZKOW: And I would have no problem that one of the recommendations be that this be put over to the next cycle. CHAIRMAN STRAIN: Ah, good. I was hoping I wouldn't have Page 2 October 26, 2007 MR. KLATZKOW: No, no. MR. SCHMITT: Mr. Chairman, if I could take a moment to __ for the record, Joe Schmitt, Administrative Community Development Environmental Services Division. Just for those planning commission members who did not happen to see the hearing Wednesday morning with the Board of County Commissioners when we first addressed this issue, we discussed the issue of the amendment that you all saw as part of this LDC amendment cycle, and that had to do with amplified sound. If you recall, we started with outdoor seating and that kind of __ I'll call the word morphed into the amendment that you all finally -- I should say you disapproved. It was disapproved by the planning commission, but it's the final version that we gave to the Board of County Commissioners. At Tuesday morning's meeting, the commissioners got into a discussion again more about outdoor seating than about amplified sound. So, my instructions from the board, just so you understand, the next LDC hearing we were instructed to bring the initial version that Susan first drafted that you saw during your first hearing which dealt with outdoor seating. The version that we ended up with after your fourth meeting, which became an ordinance that dealt more with amplified sound than with outdoor seating. And if you recall, the issue with outdoor seating, your concerns were the unattended consequences. And we talked to the board about that. But the board directed us to bring the outdoor seating version, the amplified sound version, which is the end result from your meeting, and this version here. So, all three versions are going to be going back to the board at Page 3 October 26, 2007 the next LDC hearing so that you know where we are with the Board of County Commissioners on this. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Why is -- why would those early versions -- I mean, why didn't they wait until we concluded this? I mean, the fact they may want to see all three but, I mean, we went through our all -- all the other items and then we finally focussed on this one area taking on the same path. MR. SCHMITT: The board in the discussions on the version that is in the current cycle, and I don't have that in front of me right now, their concerns were more -- had to do more with outdoor seating than it had to do with the amplified sound. Commissioner Coyle in particular stated that outdoor seating is __ is just as problematic because of outdoor seating and -- and -- and loud voices or whatever. It's -- it's -- could be just as disruptive. So, to clarify, we said we'd bring back the outdoor seating version, the outdoor amplified sound version. Weare -- we're entasked also to -- to continue with -- with the noise ordinance and looking at outside we can tighten up the noise ordinance, but Jeff here never really talked about this version. And Jeff made it clear we were bringing this back to you and, certainly -- your -- your advice is certainly -- it always is considered in high regard with the Board of County Commissioners, and -- and this is -- this is the kind of another twist, but it gives the zoning director the authority to -- based on -- on an evaluation to deny a certain establishment to go and -- and be in place. So, that's kind of the -- how this -- it's three different techniques, I guess, I'll call it or three different approaches to deal with the same problem. CHAIRMAN STRAIN: Mr. Murray. MR. SCHMITT: I don't know if that answers your question, Page 4 October 26, 2007 Brad. The board asked those questions about how this seating that brought us back to the outdoor seating version. COMMISSIONER SCHIFFER: I just wonder why there's seating at all. Until we -- I mean, I thought this is the third attempt to come up with an ordinance to achieve what they wanted and not __ anyway, I -- CHAIRMAN STRAIN: I think the fact they want to see it is -- is something we just -- it's their prerogative, so we're kind of stuck with it so-- , COMMISSIONER SCHIFFER: The fact that we're seeing it at all until -- you know, this is what they should have said and they should have requested the second half MR. SCHMITT: Well, understand, the version they are seeing is the version you already saw in this cycle. COMMISSIONER SCHIFFER: Twice. It's like our -- our second. MR. SCHMITT: I think that's correct. And that was in their book, so that was -- and then we explained that we were working on this. And they really hadn't seen this one yet. So, it's -- it's -- it's kind of -- we're in transition, and I think both Mr. Klatzkow and I fully understand that even if the board so chooses, we've already identified to the board that this LDC cycle will probably be two separate ordinances. All those that dealt with all the LDC amendments that deal with everything you saw, this will probably be dealt with under either a separate date or maybe even continued to the next LDC hearings. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: I just wanted to find out whether this is the so-called oh, my God witness that we -- that you talked about at the board? Page 5 October 26, 2007 about at the board? MR. KLATZKOW: Yes. COMMISSIONER MURRAY: Okay. I just wanted to be clear. Okay. MR. SCHMITT: So, that pretty much gets us where we are, so I'll turn it over to Jeff MR. KLA TZKOW: I think I've got your comments right. I hope I did anyway. CHAIRMAN STRAIN: Mr. Kolflat had a question. COMMISSIONER KOLFLAT: On the first one we reviewed, didn't we have a vote on that that was three/three? MR. SCHMITT: No. It -- Mr. Kolflat, it was -- I don't remember right now. It was, I think, six/two denial or -- or six/two denial. MR. BROOKER: Six/two or six/three. MR. SCHMITT: Six/two or six/three denial. COMMISSIONER KOLFLAT: Recommendation for denial. MR. SCHMITT: That's correct. Based on the way it was written, yes. CHAIRMAN STRAIN: Okay. Mr. Klatzkow, before you begin, I'd like to no if this -- ifthis section 10.02.03 was advertised for a change in this LDC cycle. MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Okay. The language that's in front of us though I don't believe has been distributed widely to the public. MR. KLATZKOW: No, not at all. CHAIRMAN STRAIN: Okay. Now -- I mean I know we could get into listening to your position on this. And we can get into the debate of it, but we also ought to consider before we go too far how far we want to go being as though it's really outside the public at this point. Yes, it's in a taped meeting, but it's in a taped meeting in a room Page 6 ----.-----.-..,....- . October 26, 2007 The public involved, the business community who -- this is a rather very broad and impactful document, and I think it would have wide range impact on a lot of projects in the county, and it's not really in a way too limiting. I would really feel comfortable -- more comfortable if this had been aired through the regular cycle process. I don't care which one, but one of them so that we can get the input we want to get so we can provide a fair and unbiased recommendation. Now, with that said, I'll leave it up to this panel on how far they want to go with this today. Miss Caron. COMMISSIONER CARON: Mr. Schmitt, when you talked about the possibility of doing this as it sort of its own little cycle all on its own, would your intent be to handle it in a normal fashion, however, go to the DCA, you know? MR. KLA TZKOW: This -- I can answer that, Commissioner. This is going to DCA. And it will be -- if it's heard by the board, it will be heard November 13th at their regular meeting. It will be the only LDC item we hear, if this one has its own separate track __ COMMISSIONER CARON: Yeah. So, I don't think that-- MR. SCHMITT: It will still be considered part of this cycle, but the cycle will be continued and this we dealt with -- with under a separate ordinance. CHAIRMAN STRAIN: Well, don't we normally hear things after the other board, so we get the benefit of their comments, especially a group like DCA who's really __ MR. COHEN: You mean DSAC. CHAIRMAN STRAIN: -- is the one that's going to impact them all? DSAC. COMMISSIONER CARON: I'm sorry. I said it incorrectly. Page 7 ~-"~---",,~._,."._..- October 26, 2007 MR. SCHMITT: This -- yes. I-- COMMISSIONER CARON: Yes. MR. SCHMITT: You can direct this guide. This has not gone to the DSAC yet. The DSAC had a subcommittee meeting, and I don't believe the DSAC addressed this at the subcommittee meeting. MR. KLATZKOW: Frankly, if I might? CHAIRMAN STRAIN: Go ahead. MR. KLATZKOW: My preference really would be to -- I -- I understand your concerns, that one of the recommendations of the __ if this is how the board feels that -- and it could be the first recommendation, that this matter be heard all over again in the next cycle, and that's fine. But the board is expecting this, and I -- I would like to get your recommendations. If the board does not go along with your recommendation in this cycle, that they have your other recommendations as well. CHAIRMAN STRAIN: Miss Caron and then Mr. Vigliotti. COMMISSIONER CARON: So, there is no way for DSAC to hear this and then for us to receive their comments prior to it going to the board. Is that what I'm hearing? MR. KLATZKOW: I don't have your calendar in front of me. It's going to the board the 13th of November. Joe, can we get it back to the planning commission? MR. SCHMITT: I'll look at my calendar. COMMISSIONER SCHIFFER: Not really. CHAIRMAN STRAIN: But, see, even ifDSAC hears it, we still are missing the underlying point. This has not been a -- first of all, it's not been properly aired in the public. It's not gone through the processes that we go through for our cycles and I don't know why we're worrying about having to rush this Page 8 October 26, 2007 cycles and I don't know why we're worrying about having to rush this thing through and stand the -- the chance of a successful challenge because we did this a -- the way we're doing it. That's no need for it. It's not like the world's going to end if we don't do this thing immediately. MR. KLATZKOW: Mr. Chairman, this is commissioner driven. This is not staff driven. CHAIRMAN STRAIN: Well, I mean-- MR. KLA TZKOW: And the commission has -- and the Board of County Commissioners, if they want, can hear this ordinance. It's within the -- of the LDC. CHAIRMAN STRAIN: Well, meanwhile, Joseph, meltdown is the answer. Bob, did you want to comment? COMMISSIONER VIGLIOTTI: Yeah. I've got a couple of questions. Joe, you broke this down in three elements, other two and then this element. MR. SCHMITT: That's correct. COMMISSIONER VIGLIOTTI: This is separate. The other two that we already voted on, that's going to go through cycle one. MR. SCHMITT: Well, let me --let me correct you. You only voted on one. What started out and was presented to you by -- by Susan Istenes (phonetic) was the outdoor seating. And as you recall there in your __ COMMISSIONER VIGLIOTTI: Right. MR. SCHMITT: -- your deliberations, that evolved into an ordinance that now deals with amplified sound in a required annual permit. That's what the board saw during the LDC hearings on Wednesday. So, that's the one that you all recommended denial. Page 9 ---._._-~--~.._...._- October 26, 2007 CHAIRMAN STRAIN: Mr. Klatzkow, based on board direction, put this ordinance together, this LDC amendment, he and Catherine, I believe. Catherine's worked on it. It really hasn't been staffed much further than that. But at board direction, based on discussions between the County Attorney and the board, the County Attorney -- if I recall how this transpired, the County Attorney said, yes, we'll look at an ordinance to -- to tighten it up, because it was directed by the board to somehow create an ordinance that would give the plan -- the zoning director authority -- or someone on staff authority to review and deny based on use. And that's what you are seeing in front of you. COMMISSIONER VIGLIOTTI: My question then is this. Ifwe recommend that this gets put off until next year __ MR. SCHMITT: Yes. COMMISSIONER VIGLIOTTI: -- will the board, the BCC, still review this document? MR. KLA TZKOW: That's their discretion. MR. SCHMITT: That's their discretion. COMMISSIONER VIGLIOTTI: So, if they do review this document, we -- I suggest then if we go through this __ MR. SCHMITT: Sure. COMMISSIONER VIGLIOTTI: -- to make some kind of sense out of this, and then I would like to request it go to next year. CHAIRMAN STRAIN: Bob, before we go that far, Donna's question probably may have relevance on that. MR. SCHMITT: The DSAC meets -- you asked -- Miss Caron, you asked. The DSAC meets November 7th. And this would be scheduled for -- a November 7th meeting, but the DSAC, you would not -- you then meet -- the board meets November 13th. So, there's no meeting with the planning commission between that Page I 0 ..--------------.-.---. October 26, 2007 timeframe. You will not -- you do not meet again until the 15th, and then you have -- oh, 14th and 15th through the special meeting, and then you would have GMP cycle on the -- on the 15th of November. COMMISSIONER CARON: But it's all after the fact. MR. SCHMITT: That's all after. So, you're -- this is somewhat in a reversed order, yes. You're-- you're -- you're seeing it, then it's going to go to the DSAC, and then it will go to the board. The board has asked us to bring it back to their LDC hearing, or at some time they wanted us to kind of review wall three, and that was only based on discussion with the board because we got into discussion about outdoor seating, had the version in front of them about outdoor amplified sound, and then Mr. Klatzkow discussing this alternative. COMMISSIONER SCHIFFER: Question, mark? MR. SCHMITT: I think what's going to happen, in the one __ in some director -- we're going to get direction from the board, I __ I think, and Jeff recognizes this as well, it may not even -- it may have to be even punted to the next cycle because if the board gives us direction, we've got to go back and kind of run this whole thing through again, especially if there's material changes that materially affect what you've already seen. CHAIRMAN STRAIN: Okay. Mr. Schiffer and then Mr. Murray. COMMISSIONER SCHIFFER: Joe, is it a requirement that -- in the LDC that DSAC review LDC amendments or is that a policy you have? MR. KLATZKOW: I believe that's a policy. COMMISSIONER SCHIFFER: Okay. So, essentially, it's hard for us to say it's out of sight or out of process. The DSAC hasn't seen it. So, we should -- I think we should move on, do our work and Page I I ~--~.__.__._-_._-_.- - - _.._.-.-._.._-_.._._..,~.-._~--- October 26, 2007 then at the end, Mark, make a recommendation on it. I kind support your favor. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah. I was going to ask that same question. If -- if DSAC, when they do make their recommendations, those recommendations, as a separate document, would be presented to the board; correct? That would be presented to the Board of County Commissioners. MR. SCHMITT: Bob, normally, we -- we have one recommendation that goes to the board, but on a spreadsheet we have all the comments -- COMMISSIONER MURRAY: Okay. MR. SCHMITT: -- associated with it. COMMISSIONER MURRAY: Okay. But they -- their recommendations would nevertheless be presented. MR. SCHMITT: That's correct. COMMISSIONER MURRAY: Okay. Independent of anything. Okay. Well, then I would say we should go forward to look at this. CHAIRMAN STRAIN: Okay. I think the consensus probably is we'll move forward. I'm certainly doing so under protest, but __ I absolutely think this is the wrong procedure. But go ahead, Mr. Klatzkow. Let's just get into the -- anyway you want to proceed. MR. KLATZKOW: Well, I -- I think I've modified -- in keeping with your comments, and it's really looking back at your comments to see if I should -- if I quote all your concerns to get the definition of __ we have a definition of compatibility decibel. You're either compatible or you're not compatible. So, it's bet out entirely. I know there was a comment that there should be a very narrow Page I 2 October 26, 2007 point in time for staff people to have the site development plan and say, wait a second, this doesn't fit here, because we don't want somebody going through a lengthy process and at the end somebody say, wait a second. I took 15 days, which I think I heard from the planning commission for STEP. I know I would like more time for that, perhaps 30 days. Again, I'm looking for input from you on that. CHAIRMAN STRAIN: Well, let's start, because I've got comments on most of every sentence, so why don't we start with __ MR. KLATZKOW: You really don't like this. CHAIRMAN STRAIN: Well, it's just I don't -- I think it's way too ambiguous for the amount of imposition it's going to have on the public, Jeff, and I -- I know you didn't intend -- I know -- I know what the focus is, and I'm going to see if maybe we can talk it out and get there. Everything up to Page 3 is boilerplate. It's already in the code. It's not subject to discussion necessarily. I'd like, if the planning commissioner doesn't object, to go paragraph by paragraph, starting on Page 3, Item Number 5. And we're talking about the first paragraph that starts with the words "noncompatible uses". Are there comments on that paragraph? Mr. Schiffer? COMMISSIONER SCHIFFER: And it appears that the dangerous thing, essentially the code should be designed where zoning does not have noncompatible uses. In other words, if we allow something by zoning, the world should be compatible. So, should you add in there in the first sentence, is recognized that there are uses and accessory uses within allowable zoning, which because of their nature. Page I 3 ..,---- October 26, 2007 In other words, the queer feeling I get about this statement is that we should have a zoning ordinance that would never allow anything that isn't compatible anyway. So, for this to even occur, it shouldn't occur with proper zoning to begin with. MR. KLATZKOW: And, again, I don't think this ordinance is going to be utilized all that often. This is where you get a use that technically falls within the zoning parameters, but nobody ever tended it there. COMMISSIONER SCHIFFER: I mean, that's -- that's what I'm saying that that phrase, within allowable zoning __ MR. KLATZKOW: Yeah. COMMISSIONER SCHIFFER: -- is important because __ because then, you know, you're going to -- somebody could be before a court or a judge, and the judge will say, wait a minute, if you have zoning, you have zoning. So, this is really specific that within what we allow the zoning the problem occur. And then the word here is -- what is that word? COMMISSIONER MURRAY: Deleterious? COMMISSIONER SCHIFFER: Deleterious. Is that defined enough that __ COMMISSIONER MURRAY: That's a pretty strong word. COMMISSIONER SCHIFFER: Okay. So, in other words, in the courtroom, the argument is going to be that word is the -- is the fulcrum of the argument. Will that be good enough or -- or is __ MR. KLA TZKOW: It's a strong word and I -- I think it's meant to be strong. I mean, these are uses that really you look at it and say, wait a second, we can't have this. This is going to really adversely impact the meaning of the __ Page 14 ... -----,.._,.-..._,~.,-- October 26, 2007 COMMISSIONER SCHIFFER: Okay. So, one lady on the patio is smoking and giggling __ MR. KLATZKOW: Exactly. COMMISSIONER SCHIFFER: -- is she that or does it take four ladies to get that word? MR. KLATZKOW: No. I think it takes 2:00 a.m. in the morning, people -- COMMISSIONER SCHIFFER: Okay. COMMISSIONER MURRAY: Cussing. COMMISSIONER SCHIFFER: I'm done with the paragraph. CHAIRMAN STRAIN: We're still on the first paragraph. Anybody else? Well, let's start with the first sentence, second line. And Brad suggested a change, but after where he was talking about, it says, because of their very nature, have characteristics that do not meet the compatibility criteria. Well, first of all, I think the "do not" is pretty positive, meaning someone has already made a determination that they don't. I would rather put us in a -- may not instead of do not, because that may not is an item that moves this thing forward because, obviously, you wouldn't need our comments if it was already determined that it does not. The second sentence, it is recognized that the location of even one such use near a residential neighborhood, and I would suggest the word "may", may cause a deleterious effect. When I get done, Jeff, let me know which parts are wrong and are MR. KLATZKOW: I'm good with all this so far. CHAIRMAN STRAIN: Then the next one, special regulation of these areas is necessary, and I would insert, when such uses are recognized to ensure that these adverse impact -- to ensure that adverse Page 15 October 26, 2007 impacts do not occur to local neighborhoods, and take out the blighting and downgrading. To me those are ambiguous and subjective verbiages, and if you put those in there, I think, you know, it's a matter of experts telling you whether an area is blighted or not. And I don't think we want to be there. COMMISSIONER SCHIFFER: Mark, can I comment on that? That's a good comment because blighting, there is a lot of long, blighting for the establishment of CRAs and stuff And a giggling laid on a patio doesn't cause blighting, so __ CHAIRMAN STRAIN: So, what would happen is the word after the word "adverse impacts" on that second to the last line, obviously you would add the words "to the local neighborhoods" and then drop the rest of that sentence and that kind of cleans that up. Then you're looking at regulations that are in regards -- that whether or not they ensure or whether or not they provide adverse impacts to local neighborhoods. You understand? MR. KLATZKOW: Do you have it -- I'm going to get the exact line and trim it. I agree with it. CHAIRMAN STRAIN: Okay. Any other questions on that paragraph? Let's go to 5A. Paragraph 5A. Mr. Schiffer? COMMISSIONER SCHIFFER: The concern I have here is that what this is giving is a window to trigger this is 15 days from the submission of the STP. When the problem we're having is it goes through an STP process, it isn't caught, it isn't imagined, you know, because we do have some indecent trust that the zoning protects everybody. And then it turns out that there is a problem. So, there is no __ I Page 16 October 26, 2007 think there should be somewhere a trigger where a public condition could bring this in. And, so, why this only matters within a 15-day window, I'm confused. MR. KLATZKOW: The -- well, this was a recommendation from the planning commission that we limited it. It has to be caught during -- some time during the site development process. That's the whole point. It's not after it's actually in the ground and in operation that we look at it. It's not what's there. We want to say, for example, look, do you want to put this over here, near the neighborhood? You know, why can't you shift it over to down here instead? You still have that cues which wouldn't impact the neighborhood. But that's the -- that's the point of the process we want to get to. I don't know if 15 days is enough time; 30 days, 45 days. It's-- COMMISSIONER SCHIFFER: I like that, and that would be great if everyone was caught in that, but here's the problem, is if it's missed, will somebody go back and say, look, you guys had 15 days to tell me this isn't a good place to put my restaurant and you didn't do it. In other words, it -- everything in this thing stops after that 15 days. I mean -- MR. KLA TZKOW: That's -- that's right, and I think the concern before that Mr. Vigilotti had was that, look, you can't have a guy go through the entire site development process and at the very last second say, wait a second, this isn't any good. COMMISSIONER SCHIFFER: Right. MR. KLA TZKOW: And, so, it's sometime between, you know, the first day you see it and the last day, you know, you got it on your desk. And I know a period of time __ COMMISSIONER SCHIFFER: Right, but my -- my concern is that I don't think -- for example, I don't think the infamous one we Page 17 October 26, 2007 always discuss may not have been caught by staff They may not have the knowledge of what noise -- I mean, you're looking at drawings. You're not looking, you know, listening to drawings. And the point is this, given a 15-day window, which if you miss, the public is screwed. And it's the public the one that really has a problem with it. So, everything from this paragraph on, if you don't catch it within that 15 days isn't accessible to the problem. Now, I think -- I think that's a good process. I mean, the concern Mark had is that, you know, we would never get financing if the county's able to yank people's COs and stuff I mean, the solution is to make compatibility. But I do think that -- and then we'll discuss it further down, that there should be a way that the public can trigger -- can trigger this requirement, because right now what you're doing, you're saying, if you miss it in that -- MR. KLATZKOW: The public is never going to know this though. The problem is during this __ COMMISSIONER SCHIFFER: Exactly right. And -- and -- but if there's a legal battle over something like, you know, our discussion, they're going to say, look, the staff had 15 days to look at it. They missed it. They missed their opportunity. It's frozen. Screw it if they don't like it, they don't like it. And that's not want we want the outcome to be. Done. CHAIRMAN STRAIN: Well, Mr. Vigliotti, then Mr. Murray. COMMISSIONER VIGLIOTTI: My concern with this whole thing is timing. If you want to bring the public back into it, okay, I think it's going to drag it out. And who's the one person that's going to -- okay. The way I'm looking at this is staff is going to look at this STP, and then one person is going to get the review from the different set of eyes, looking for something different? Page I 8 October 26, 2007 And who's that one person going to be? MR. KLATZKOW: No. Once that person has the consent to know that, they look at this and say, wait a second, this is probably not appropriate here. Then I imagine it would then go on to the zoning director and at that point in time take a look at this and maybe it gives him a chance to pull it out of the process. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Just for my understanding here is that at the site development process, the developer's pretty much aware of what they'd like to do with that development, are they not? COMMISSIONER SCHIFFER: No. COMMISSIONER MURRAY: No? CHAIRMAN STRAIN: No, I think you're -- well, yeah, of course they would be. When you submit an STP, you've got to know virtually what you're doing there for parking, for all kinds of other ramifications. COMMISSIONER SCHIFFER: Right. But I could be doing a commercial shell building and it would not have an idea who my tenants are -- COMMISSIONER MURRAY: Yeah. But you would know what you're likely to have is a mix. COMMISSIONER SCHIFFER: No. COMMISSIONER MURRAY: No? COMMISSIONER SCHIFFER: No. COMMISSIONER MURRAY: Well, I -- okay. My -- my presumption then was on the basis that it would be at that point pretty well known what the original development was intended to be and, so, okay, blanket-wise on an STP, it still gives the staff an opportunity to appreciate what potential there is for problems. And I -- I think the -- the public process has already been gone through. Page I 9 October 26, 2007 I don't know. I don't see the point that you're making as -_ I see it as a valid point, but I'm not sure I see it as a critical, valid point. COMMISSIONER SCHIFFER: Well, let me say it again -- or Mark, through the chair, can I say that? CHAIRMAN STRAIN: Yeah. I was just going to say Mr. Schiffer. COMMISSIONER SCHIFFER: The -- the concern is we have a competency zone piece of land. Okay. The public would never be aware of development that's going to happen on that piece of land. An STP is -- is submitted and in the review ofthat STP, ifthe staff misses something and it goes out, then that condition is going to exist and we have no handle in this ordinance anyway to protect the people that are living with this problem that happened. MR. KLA TZKOW: You're down to your noise ordinance, which is what we -- it's how we're living with now. COMMISSIONER SCHIFFER: And -- and why are we -- and that noise ordinance is not able to cure the problems we have now; correct? MR. KLA TZKOW: Correct. COMMISSIONER MURRA Y: You know, I would just __ CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Yes. There's a -- I can't think of the title of it. There's a group of people looking to -- to have approval of all zoning ordinances, something democracy care. MR. KLATZKOW: Home Town Democracy. COMMISSIONER MURRAY: Home Town Democracy, which is what -- it strikes me that you're really referencing there. I'm not sure you could ever get -- if they're not -- if a developer's not ready and he doesn't know what tenants he's going to have in there, I -- I don't know that -- that he'll ever be able to go forward at all. COMMISSIONER SCHIFFER: Well, let me explain that Page 20 October 26, 2007 condition. And Bob is really the expert on this. That's because that's what he does for a living. It says you could build a shell building and you may have a couple major tenants to get financing, but you would not know all the tenants in your building at STP. Don't you agree, Bob? COMMISSIONER VIGLIOTTI: I agree. CHAIRMAN STRAIN: I'm trying to get to you, Joe. THE COURT REPORTER: One at a time, one at a time. CHAIRMAN STRAIN: Go ahead, Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Where I'm stuck is the bringing of pop process will cause more time and __ CHAIRMAN STRAIN: Guys, you've got to be recognized. Mr. Vigliotti, you've got the floor and before anybody speaks, please, let me ask Joe to speak and then Mr. Schiffer. COMMISSIONER VIGLIOTTI: Go ahead. MR. SCHMITT: I just want to point out that what you talked about, you can do a shell building. We're still going to have to know what it is in some form or fashion what you believe it is, because we still have to assess you -- COMMISSIONER SCHIFFER: Right. MR. SCHMITT: -- impact fees or whatever. COMMISSIONER MURRA Y: Yeah. MR. SCHMITT: Once you find a tenant, whatever that may be, whether it's a drugstore or whatever, you then have to do a substantial change or a substantial change to your STP. So, eventually that STP comes back in here when you identify a specific tenant and a specific use, so we can do the proper reviews for that use. So, that's when this -- you would be triggered under this review. So, you may have a shell building, we don't know. But then if you have a specific, we're going to know. Page 2 I "-~~_""'-"._,,,._.,~-_._,,,. October 26, 2007 COMMISSIONER SCHIFFER: My turn? CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Kolflat. COMMISSIONER SCHIFFER: And don't misunderstand. I do not want the public involved within the IS-day STP process. That's not what I'm talking about at all. I'm talking about once it gets out the gate down the road, how do we bring the public back if this process makes a mistake? MR. SCHMITT: If you've got a -- with all due respect, if you've got a building that's all built out and it's ready to go and they're doing business, if they're not in violation of any ordinance, that's it. CHAIRMAN STRAIN: Mr. Kolflat, you were next. COMMISSIONER KOLFLAT: Well, he's -- he's retracting. I didn't -- I don't see why it has to go to all the public process this early. COMMISSIONER SCHIFFER: No. I don't know. COMMISSIONER KOLFLAT: I think that's not necessary. Relying on a lot of things that staff does and why not this also? CHAIRMAN STRAIN: Well, I think that if we were to come back in and allow something like this to apply after the building has been erected and occupied and the discovery was made then, we're going -- we would be taking away someone's right to -- I mean, they would have built out, spent considerable sums of money to open a business up. The avenue at that point becomes a civil matter or any other matters through our ordinances and noise ordinance and whatever else. But I certainly think we can't enact this ordinance -- this particular process at that stage. There are plenty of other processes that would kick in. This one doesn't need to be. But, anyway, we're back to -- we're still on A. Is there any other questions on A? Miss Caron. COMMISSIONER CARON: Let's just get to the real heart of Page 22 - _.__.-_._-----~ October 26, 2007 this, which is the number of days involved. Is everybody comfortable with 15 days? CHAIRMAN STRAIN: Joe, that's more ofa call from your department. Can they look at this in 15 days and come back maybe in 30. Now is the time to say it. Because we'd hate to say it afterwards and say, oh, gee, I missed that because I didn't have enough time. So, why don't we just put the time in you need if you feel it's inappropriate for 15. MR. SCHMITT: Oh, I think 15 days puts a lot of pressure on staff CHAIRMAN STRAIN: Then what doesn't? MR. SCHMITT: Normally we do a 30-day review. CHAIRMAN STRAIN: Okay. MR. SCHMITT: A 30-day review time is when we send out comments and that certainly would be probably more appropriate. CHAIRMAN STRAIN: Okay. Is that -- Jeff? MR. KLA TZKOW: Yeah. And do you want to tweak the language so that it's when we know what the proposed use is going to be to get around the shell building? CHAIRMAN STRAIN: Thirty days from the time of the designation for use. How's that? Does that work, Mr. Schiffer? COMMISSIONER SCHIFFER: Why wouldn't it be a problem just to have it, you know, during the STP process? You know, why don't we limit it through a portion of the STP process? Why can't -- if during the STP process this is discovered, then the owner would be notified. The STP process has a lot of resubmittables, a lot of additional data, a lot of requests, and it may be in the additional data that the staff members discovers the problem. Page 23 October 26, 2007 CHAIRMAN STRAIN: But, Jeff -- Brad. If we say within 30 days from the designation of the use, that covers it from whenever, during whatever process the use is determined, whether it's the initial STP, whether it's an SIP, whether it's a business occupational license or anything. Thirty days from the designation of the use. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: I mean, does that provide an envelope that's much -- COMMISSIONER SCHIFFER: Yeah. I mean, it's -- again, you know, the staff member may think that there's a wall and it turns out that's a curve. I mean, this -- you know, I -- I just don't understand why there's a limit within the process to do something when in that whole process it could be discovered, but what you said is fine. I could live with that. CHAIRMAN STRAIN: Okay. Any other questions on Paragraph A? I have a couple. Third line, Jeff, it says -- it starts on the second line, County Manager or designee to refuse approval. I think you mean to refer approval, wouldn't you? Because their choice is not to refuse it, they're to refer it. MR. KLATZKOW: Well, this is the idea how I envision this works and maybe you can help me get there better with these ordinance. I want staff to have the ability to go to the developer and say, look, we know what you're putting in here, it really doesn't belong here, it should belong somewhere else. And I'm guessing that 90 percent of all the disputes just get resolved then and there. And then you've got the other ten percent of the disputes that would then go to the planning commission, and then you'll hear through it and you'll make recommendations, saying, can Page 24 October 26, 2007 you do this, can you do this, can you do that? And if they say, yeah, I can do that and that ends it, or he may say, no, I can't do that at all and we'll go to the board. So, the idea really here is to get people together to figure out how best to put this use in that development, amicably reach a resolution of that so the residential community is not impacted and so that we can just move on to the process quickly. I'm really hoping not too many of these actually gets to the Board of County Commissioners, quite frankly. That's -- it's really what I'm trying to get at through here. Sort of force almost like a mediation process through the process. CHAIRMAN STRAIN: Okay. A couple lines down from that, it begins with the word "designee", and it says, it's not compatible with-- and I'm suggesting instead of the word "not" is -- instead of the word "not", may not be. MR. KLATZKOW: May not be, yes, sir. CHAIRMAN STRAIN: Okay. And after the word "with", and where it says "and", I would suggest striking "and" and use the word "or". MR. KLATZKOW: Yeah. And I intentionally put the word "and" in there because it was my -- it really wasn't my idea to make this few and far between, but we can put the "or" in. CHAIRMAN STRAIN: Well, I think compatibility and deleterious effect may be two different occasions, and you may want to be able to have the ability to either want to come forward. MR. KLATZKOW: Yes, sir. CHAIRMAN STRAIN: Okay. MR. SCHMITT: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. SCHMITT: And please understand that I'm not throwing tomatoes at Jeff This is -- we -- we've not staffed this fully from the Page 25 ~---~._- October 26, 2007 standpoint of -- of the zoning staff, and my concerns on this, and I'll raise them so we can discuss them, normally at the STP process an applicant has put in a lot of time and effort and money. And -- and could -- I'm just thinking out loud here through zoning verification or some other method, if they wanted to come through that type of method as a proposal because by the time they go to STP, they've invested a significant amount of money. CHAIRMAN STRAIN: We're saying -- I think we're saying within 30 days from the designation of the use. I think that may occur at any time, whether they wanted to bring it in after. MR. SCHMITT: Okay. That's fine then. I think that's where I was gomg. CHAIRMAN STRAIN: And by the way, we know you're not throwing tomatoes at Jeff, because I could -- like I said from the beginning, personally I'm totally against doing this today. I think it's the wrong timing and wrong time for them to do it, but I'm only doing it because we seem to be forced to be doing it, so Item B. Any questions on Paragraph B? Jeff, the -- the word "amicably" on the third line, why don't we just strike it? You're going to attempt to resolve it. I don't know if it would be amicably when they get done anyway. Half the time these aren't amicable resolutions. They just have to be what they are, so __ okay. Miss Caron. COMMISSIONER CARON: Well, I just was going to say, but I think the intent is that they be amicable. MR. KLATZKOW: Yeah. I don't staff strong arming developers, quite frankly. COMMISSIONER CARON: Right. This is not the -- the purpose here is not to strong arm, exactly. The purpose is try to come to an accommodation, and if staff and the petitioner can't come to an Page 26 -"""'~-'~'-"''''.'.''--'~'^'.-,.._-. October 26, 2007 accommodation, then they will end up coming to the CCPC, and if we all can't come to something, then you go to the BCC. CHAIRMAN STRAIN: Well-- COMMISSIONER CARON: I mean, I just -- I think -- and I think that's all really important because, again, I think intent of this ordinance is one of the most important issues here. And the intent is not to have this be a total adversarial situation. It's to try to make things better all around. Believe me, some of the places that have problems now would be so much happier if they had gone through this process and didn't have to worry about these issues. So, I think -- I -- I don't know that I have such a problem with amicable or not, you know. CHAIRMAN STRAIN: Okay. Well-- COMMISSIONER CARON: I just want to -- I want everybody to understand the intent, whether the word remains there is -- CHAIRMAN STRAIN: The only reason I suggested that it may not be amicable is because if they refuse to grant approval, they're not started out on very amicable footage, but that's fine. Paragraph C? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: And it's really a bullion lot. They put one and two. Is it the intent here that number one is whether the proposed use wasn't entered for the site as set forth in the zoning? So, if that says no, then you don't go onto two; correct? MR. KLATZKOW: No. I want the planning commission to have the ability to say, wait a second. One, we don't think that -- we don't think that use really was intended for the site, or I want you go in and say, you know what, we think we can get you more compatible with Page 27 October 26, 2007 say, you know what, we think we can get you more compatible with this if you do something else. It's try to give you more tools. COMMISSIONER SCHIFFER: Okay. So, in other words, if we did determine that it was not allowed in that zoning, we could still continue on? MR. KLATZKOW: Oh, ifhe determines not-- COMMISSIONER SCHIFFER: Right. MR. KLATZKOW: -- viable in that zone, yeah. We would-- that's the problem. COMMISSIONER SCHIFFER: Okay. Then, number -- obviously, number one has to be true before we get to number two. And it's -- I think the intent of this thing is number two. MR. KLATZKOW: Yeah, but it could be -- you might say, wait a second. When we're doing those SIC codes, this was -- this doesn't fall within it. COMMISSIONER SCHIFFER: Right. And then it's over and it shouldn't have got that far anyway. MR. KLATZKOW: Yes, sir. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: On his point on number one, one says whether proposed use was intended for this site as set forth in the zoning ordinance. The zoning ordinance doesn't necessarily set forth the intent. The language that involves around -- the intended language of the discussion may set the intent. And I would rely on like we are on PebbleBrook, the minutes of the meeting, so maybe we ought to say whether the zoning ordinance as contemplated such a use was intended for this site. MR. KLATZKOW: And the PebbleBrook example is the one I had where I think it was you, chairman, who made the motion that there should be no drinking establishments -- Page 28 October 26, 2007 CHAIRMAN STRAIN: Yes, it was. MR. KLATZKOW: -- and a sports bar was put in there. CHAIRMAN STRAIN: Right. MR. KLATZKOW: And this would give you to say, wait a second, it was never intended for a sports bar to be there. You don't fall within the SIC code. CHAIRMAN STRAIN: I agree, but the caveat after the comma bothers me. As set forth in the zoning ordinance. MR. KLATZKOW: Right. And that would be the PUD. CHAIRMAN STRAIN: Right. But the PUD in this case is wrong, so we can't -- we can't look at the growth use as it -- as it was intended in the zoning ordinance in all cases, and especially in the case of PebbleBrook. We're looking at it as a proposed use, was actually a motion made and discussed in the public meeting, and the zoning ordinance is in error. So, I don't want to -- I don't want to an analysis to be have to be forced back to the zoning ordinance that caused the problem in the first place. MR. KLATZKOW: So, you want me to take -- get rid of that second clause, as set forth in the zoning ordinance? CHAIRMAN STRAIN: That would be fine if that's all it takes, yes. I -- I certainly want to rely on more than the zoning ordinance because obviously we found that the zoning ordinance may be in error and the intended language that developed the ordinances, well, we might want to look back at, so -- COMMISSIONER MURRAY: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER MURRAY: The question had -- if you eliminate the zoning ordinance, which is the PUD, what defense can Page 29 October 26, 2007 eliminating that information, that part of the sentence. MR. KLATZKOW: Well, just by eliminating it doesn't mean you all consider it. What I think the chairman's getting at, he wants to consider it __ COMMISSIONER MURRAY: No. MR. KLATZKOW: -- more than just a-- COMMISSIONER MURRAY: I saw that. I was trying to see another aspect of it, which is later on in court when an assertion was made. And I -- I'm just wondering if it's not within that, and I -- I-- clearly, I appreciate where he was going with that. Okay. We can work it with words, that's fine. But I was thinking where -- when we get to court, where we'd be. MR. KLATZKOW: The easiest way to state out of court is to prove everything, but that's not necessarily what's good for the neighborhood. COMMISSIONER MURRAY: Clearly. CHAIRMAN STRAIN: Okay. We're on to Paragraph D. Any comments on Paragraph D? The only thing I would suggest is the first line should be either the county or the applicant. I would -- you know, in this particular case wouldn't -- since it's a public meeting, wouldn't the affected parties from the public, if they wanted to have the right to appeal it before the board as well? MR. KLATZKOW: You want the public to have the right to appeal it. CHAIRMAN STRAIN: Don't they all have the right anyway? I mean -- COMMISSIONER MURRAY: Public petition. CHAIRMAN STRAIN: See, this is going to be an issue that comes up possibly because of concern by the public. And ifthere is, Page 30 October 26, 2007 do we want them to have the ability to -- MR. KLATZKOW: If I've got -- if I've got Joe's staff saying that we're happy and I've got the developer saying he's happy with it, I think that should end it. CHAIRMAN STRAIN: Okay. I think you're right come think about it. Okay. Any other questions on D? How about E 1 ? MR. KLATZKOW: Now, let me just ask you for D because I -- I struggled with this. And that's the notice point of this. I really don't think that the developer should be put through the cost they developed to put the conditional use process. CHAIRMAN STRAIN: Right. MR. KLATZKOW: So, my thought was that get to the board just on a regular advertisement like any other ordinance. There won't be signs posted for the community or there won't be mailings sent out. There would not be a neighborhood information meeting. It would just be an advertisement in the -- in the newspaper at least ten days prior to the hearing and that would be the end of it. That's the intent. I don't know if that's what you want. That's the intent of it. COMMISSIONER SCHIFFER: And it comes back to the public concern. Because what you're saying, staffs happy, the applicant's happy. If it's built and the public isn't happy -- MR. KLATZKOW: It wouldn't be built. This is STP stage or earlier. COMMISSIONER SCHIFFER: Well, everybody's happy. MR. KLATZKOW: Well-- COMMISSIONER SCHIFFER: In other words, what this is if it's appealed, if there's a concern with the staff or the applicants, they don't Page 3 I October 26, 2007 see eye to eye on something and it's appealed to the board, you don't want the neighborhood to be notified of that? MR. KLATZKOW: Well, they will be notified as they would any other ordinance, but to keep the costs down for the developer, there would be no neighborhood information meeting, no signs posted, no mailing sent out. It would just be the same notice we give for a typical ordinance. COMMISSIONER SCHIFFER: Which would be a newspaper ad? MR. KLATZKOW: A newspaper ad, yes. COMMISSIONER MURRAY: But it would be a hearing. MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRA Y: Thank you. There would be a hearing. MR. KLATZKOW: Yes, sir. There will be a public hearing. COMMISSIONER MURRA Y: And it would be for a conditional use. MR. KLA TZKOW: No. It would be a public hearing as -- just as to the -- see, it's not conditional use. This is whether or not this use should proceed without certain conditions being placed on it. COMMISSIONER MURRAY: Would our findings -- they certainly wouldn't be the final -- would we still be recommending to the board or would we make the final as -- at a certain level? I thought that you intimated that earlier. MR. KLATZKOW: You would make the -- as always, you would make your findings and recommendations and that would go to the board. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Okay. El. Page 32 October 26, 2007 Mr. Vigliotti. MR. KLATZKOW: Let me break it off here, too, because we could end this ordinance right here, all right, because this is just the __ the oh-my-God part of it where staff sees something in the site development plan where they saying this really doesn't belong here. And from A through D, it could end here. Now, I put in E and F, or El and 2, which really gets more towards the noise ordinance. So, if -- if you're concerned with the public input of the noise element of it, we could take that out entirely here or at least separate it. CHAIRMAN STRAIN: Okay. Mr. Vigliotti. COMMISSIONER VIGLIOTTI: E, that refers to existing __ PUDs existing, buildings, existing developments out there? MR. KLATZKOW: Yes. Everything that's in the ground are going to be in the ground. COMMISSIONER VIGLIOTTI: Okay. MR. KLATZKOW: I could-- COMMISSIONER VIGLIOTTI: So, if you could go backwards, everything that's in the ground. MR. KLATZKOW: Everything's that's currently operating, this could apply, too. COMMISSIONER VIGLIOTTI: So, we're trying to get around the ramifications of this. MR. KLATZKOW: The ramifications of this would be that if you've got a bar that's operating, and it's noisy, we could have the ability to have them cut the sound off, which would harm that habitability. CHAIRMAN STRAIN: Miss Caron. COMMISSIONER CARON: Before we move on to -- to -- to E, I just want to make sure that we're getting out of this what we need to Page 33 October 26, 2007 I just want to make sure that we're getting out of this what we need to get out, because if we use PebbleBrook as an example, this probably never would have gotten to light because at the time staff thought everything was just hunky-dory -- MR. KLATZKOW: Well-- COMMISSIONER CARON: -- so -- MR. KLATZKOW: You know, if -- if the owner states they're going to put up a sound wall when his neighbors first complains, we're not talking about this at all. Okay? And it's really as simple as that. This is where you have an operating business that is really receiving complaints from the neighborhood and doesn't do anything. And E, going on, is an attempt to get to that. COMMISSIONER CARON: Right. So -- so this is where that would kick in. Okay. All right. So, even if it gets missed in this first go around, and staff doesn't see any conflicts or any compatibility issues, then __ but when it's actually up and running, we realize again, oh, my God, this is what's happened, then we move on to E and -- MR. KLATZKOW: That's right. COMMISSIONER CARON: -- and beyond. Okay. MR. SCHMITT: In could comment, I would suspect that's probably going to be more the case than -- than the former because __ and if Stevie Tomato's, if you rook at it, it's a restaurant. It came in as a restaurant and it's under the proper SIC code, and I know there was discussion about drinking establishments, but that was a different SIC Code. And, so, normally this is where it would kick in. It would be the -- the existing facility because -- COMMISSIONER CARON: I understand, Mr. Schmitt. However, be well aware that this board will be looking at every SIC Page 34 October 26, 2007 worry about that. MR. SCHMITT: I have no problem with that. COMMISSIONER SCHIFFER: You're chair, I think -- COMMISSIONER CARON: I am chair and you are recognized. COMMISSIONER SCHIFFER: Oh, my gosh. COMMISSIONER CARON: Speaking of oh, my God -- COMMISSIONER SCHIFFER: Because the Halloween costume's not working? The concern -- the concern I have though is that, yes, if it becomes a problem in the field, we just really fortified the owner of the property even more because what we've said is, look, you had the chance. You have your 15, 30 days, whatever it was, to do this with the staff and you didn't catch it. So, I really relied on that judgment, this would be allowed. So, I -- I think, you know, what this does up until now is actually fortify an owner his position ifhe doesn't have a nuisance occupancy. Have we moved down to I yet or -- COMMISSIONER CARON: Yeah. I think we were ready to do that. COMMISSIONER VIGLIOTTI: Yeah. We are on it -- we are on I. COMMISSIONER SCHIFFER: Can Brad still have the floor? COMMISSIONER VIGLIOTTI: No. COMMISSIONER SCHIFFER: Okay. The concern I have is that you're -- in defining areas in which noise could be a problem, you're defining outdoor serving areas, thus if I hand you a beer and you happen to take it out the door, that area outside there is not qualified in this ordinance. Because, you know, you happen to wander out with a beer, I didn't serve you, so, you know, I think that's a concern. MR. KLATZKOW: It's outdoor serving areas without their Page 35 -------.....-----.--- October 26, 2007 entertainment. COMMISSIONER SCHIFFER: Right. So, the point is that -- that if I have a patio, if you don't like to buy beers inside my bar -- MR. KLATZKOW: You have no outdoor entertaining. COMMISSIONER SCHIFFER: And I have entertainment out there and they just take the beer out there, I'm not serving it to them. Anyway. I don't want to put a stump the stars here but, in other words, I think that that should be -- you know, I don't think you need the word "serve" in there. If you have an outdoor area with entertainment, whether it's a restaurant serving or the day -- MR. KLATZKOW: But-- COMMISSIONER SCHIFFER: -- care or having -- MR. KLATZKOW: -- but an outdoor seating or serving area? COMMISSIONER SCHIFFER: Just an outdoor area. MR. KLATZKOW: Okay. That's fine. COMMISSIONER CARON: Let's take out "serving". COMMISSIONER SCHIFFER: Because it doesn't -- and also, for example, it could be a day care with a bunch of people singing folk songs too loud all the time. You know, it could be the same annoyance. MR. KLATZKOW: It would fall-- COMMISSIONER SCHIFFER: The other problem is -- MR. KLATZKOW: It would fall under this, too. COMMISSIONER SCHIFFER: Shiv that's what I'm saying. But -- but if you're not serving food to the day care out there, then it would be a problem. The other thing, it says how does this track the smoking lounge with the giggling lady? There's no outdoor entertainment. There's a whole bunch of people out there, smoking, and not that smoking causes a problem. It Page 36 October 26, 2007 could be outside for fresh air. This is Florida. A lot of people eat outside. There could be a lot of chatter, people having fun within -- within the 1500 feet. So this is not capturing them; correct? MR. KLA TZKOW: No, but it doesn't capture my neighbor who's out with a couple of friends, smoking, talking loudly either. It's just __ COMMISSIONER SCHIFFER: So, it doesn't -- you know, any restaurant patio without entertainment could be billed essentially just outside the buffers of a commercial property. MR. KLATZKOW: Or should be. But this would not -- this would not take into -- I take this back. Ifhe simply had an outdoor serving area with no entertainment, this ordinance will not apply to you. COMMISSIONER SCHIFFER: Right. Okay. CHAIRMAN STRAIN: Mr. Kolflat. COMMISSIONER KOLFLA T: Yes. Where does it -- what's the basis for the 55DB? MR. KLATZKOW: We've had discussions with the board on this. They felt 65 decibels was too high. I think fifty-five would be more appropriate. I couldn't tell you the difference between the two. I'm not a sound engineer. That's -- that's the way I put -- that's the number that I heard and I put it in, and I'm sure Commissioner Halas, who is an expert on sound, you know, will be able to further find this. COMMISSIONER KOLFLAT: Well, I'm going through some speech therapy right now. The therapist tells me that normal conversation is closer to 65 than 55DB. And I think somebody technically positioned to answer that questioned ought to determine what the value should be. CHAIRMAN STRAIN: Okay. Miss Caron. COMMISSIONER CARON: I think you're right, Mr. Kolflat, Page 37 October 26, 2007 that normal speech is closer to 65. But when it's normal speech times ten or 20, then we need to lower it in order to get down to something reasonable for adjoining neighborhoods. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRA Y: I'm not sure. I'm not sure that that's even -- well intended though it may be, I'm not sure that's practical physiologically. I -- you're going -- you're going to have people, and I understood your statement. You're going to have people talk by reducing the level or the layer down to 55, you're not going to cause them to speak any less loudly. MR. KLATZKOW: The -- the intent of this, quite frankly, is if you have an outdoor seating area and you want to do outdoor entertainment and you're near a residential area, put up a wall. That's the intent. COMMISSIONER MURRAY: Okay. If that's the purpose. All right. Fine. CHAIRMAN STRAIN: Miss Caron, did you have anything you wanted to add? COMMISSIONER CARON: No. That was going to be my point. It has nothing to do with the level of my voice or your voice. It has to do with when you would be required to put in a wall or other buffering to take care of the sounds. COMMISSIONER MURRA Y: I would agree with that. CHAIRMAN STRAIN: Mr. Murray. Mr. Vigliotti's next. Go ahead, Mr. Vigliotti. COMMISSIONER VIGLIOTTI: I agree that we want to get them to put up a wall as soon as possible. What are the -- are the building codes going to be any hindrance to the size of the wall, shape of the wall, how high it could be, how wide it could be, how many feet for the property line? Page 38 October 26, 2007 I don't want see a lot of hindrances. MR. SCHMITT: Oh, absolutely. I mean, any wall has to be built to the building code has to be engineered for wind load, all the other type of things associated with any type of wall. Similarly, the LDC, ifthere's any requirement for a wall to go in after the fact that impacts preserves or some other aspect, something like that will be a special consideration would probably would have to go back to the board for some kind of staff to -- to present to the board to -- to approve. COMMISSIONER VIGLIOTTI: But we can be flexible as to __ MR. SCHMITT: Oh, absolutely. COMMISSIONER VIGLIOTTI: I don't want to over burden the system and tell someone they have to put up a wall where it's impossible, so -- MR. SCHMITT: Absolutely. COMMISSIONER VIGLIOTTI: -- it's just easier to get an average wall put up. MR. SCHMITT: Yes, but understand that local codes are the __ but the board can only control what codes it puts in. COMMISSIONER VIGLIOTTI: Okay. MR. SCHMITT: The board can't supersede, or if there's a federal or state code requirement, you know, endangered species or some other type of thing that requires some other type of permitting or something that's in a jurisdiction or wetland, those type of things, the board -- we're going to have to force the applicant to go back to those agencies to secure the proper permitting, ifthere's a wall that's got to go in in those areas. Hopefully that answers your question. COMMISSIONER VIGLIOTTI: Yeah. CHAIRMAN STRAIN: Just so the board knows, it's 12:30 and we're going to have to either wrap this up fairly quickly or go for a Page 39 October 26, 2007 lunch break and give the court reporter a break or whatever. I mean, I know we're going to lose Mr. Kolflat soon as well. So, I don't know how far you want to take this today. We're now at the end of the document. Are there any other remaining questions of the document because we still have public testimony. Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And it's double I. What you're saying is live entertainment. My concern is we have -- we do have a sound ordinance. Could this be construed to override that ordinance? I mean, normally codes, when you have general requirements, they're overridden by a specific requirement. This looks specific, so -- for example, what you're saying is that I have the ability to build a -- an outdoor area for an outdoor life entertainment 2500 feet away from residences yet, you know, I don't __ you know, ACDC was winning that if they were claiming that the residences would be blown away. So, could this be construed in any way to state that if you are more than 2500 feet, you have a right to do anything you want and not have to even abide with the sound ordinance? MR. KLATZKOW: No. This is simply a bar on live entertainment if within 2500 feet ofa residential property, otherwise the regular sound ordinance comes into play. COMMISSIONER SCHIFFER: Okay. So, other areas ofthe code are again specific. They would require the sound ordinance to be maintained. You're just -- this is just saying nowhere within 2500 feet __ MR. KLATZKOW: Yes. COMMISSIONER SCHIFFER: -- trying to get live entertainment. Page 40 October 26, 2007 MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRA Y: Is a DJ considered live entertainment? MR. KLATZKOW: I would imagine, yeah. MR. SCHMITT: That would probably fall under amplified sound. COMMISSIONER SCHIFFER: No question, but I mean, is it considered live entertainment? MR. KLA TZKOW: I don't know. COMMISSIONER SCHIFFER: It depends on how good he is. CHAIRMAN STRAIN: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Section I. Excuse me. In regards to wall, section double I. That's for existing also, or no? MR. KLATZKOW: Yes. The way it's written. I mean, you could recommend that it's only just for new uses. COMMISSIONER VIGLIOTTI: You mean to say we can go back to anybody that's 2500 feet away and just say you're out of business? MR. KLA TZKOW: No. COMMISSIONER VIGLIOTTI: But they can't do live entertainment. MR. KLATZKOW: You're not doing live entertainment, yeah. CHAIRMAN STRAIN: Okay. Are there any other questions on the document before we get to public testimony? COMMISSIONER SCHIFFER: Yeah. I just __ CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER SCHIFFER: I just want to make a -- I have to know this. You may go to the restaurant, too, but there's one called Porky's Last Stand, and there -- there's people all around them. And the impact of this, for that restaurant alone would be if somebody Page 4 I October 26, 2007 decided to complain, because they have outdoor; that is to say, screened in place where they have a country western bands and so forth. They could put them out of business basically for that, couldn't you? If somebody would complain and -- and that basically is the end of that; right? MR. KLATZKOW: You can recommend that we strike this. COMMISSIONER SCHIFFER: I certainly will. CHAIRMAN STRAIN: Okay. Are there any other questions on docket before we go to public testimony? Okay. Is there members of the public? Let's see. Is there anybody out there? MR. BROOKER: Thank you. For the record, Clay Brooker. I -- I'm a -- I'm a little bit concerned about the intent that this Section E would in fact apply to existing establishments. And I know that's what we're trying to get at because of the -- of the issue that's -- that's caused this whole movement. And my suggestion would be is separation requirements of Section E should not be in the STP approval section of the Land Development Code. The STP approval deals with things long before you have established businesses. So, if -- if that's where the county wants to go and affect existing establishments, then put it in the supplemental regulations or put it in a section of the code where people can find it readily. I'm dealing with another issue where a setback was hidden in a section of the code and no one really new it existed and -- and so it would be better if -- if I'm in an existing establishment or I want to open up an outdoor restaurant, I'm not going to be looking at the STP approval section of the code, because it's long before I even came in to Page 42 October 26, 2007 a consideration for a restaurant. I am concerned about the timing and the notice. I'm wondering if -- with regard to existing establishments, whether the county has taken a look to see how many existing establishments we have today that are 1500 feet from a residential zone or 2500 feet from a residential zone, because I think from a -- from a perspective of fairness, those establishments if we -- if we know they exist and we know they're going to be impacted by this, they should be given direct notice of this coming -- coming down the pike and let them weigh in on their opinions and what they can and cannot do or mayor mayor may not do. The definitional problems, outdoor area with outdoor entertainment, I believe Commissioner Murray touched on this, the whole question of is a DJ live music or live entertainment? The City of Naples has been through a lot of dispute over that kind of issue, and we should learn from their role and -- and specifically define these terms, what is included and what is not included. For example, outdoor entertainment. If you have a bar outside in your outdoor serving area, is that considered entertainment? Okay. I'm seeing a shaking of a head no. I don't know. It should be defined. How about music piped through like these little ceiling speakers, background music? Is that entertainment? TV s, entertainment? Perhaps. Again, the point is if these kind of issues are -- if I can think of them, they are going to be a problem for staff down the road, and why not just make it very, very clear or as clear as we can possibly make it now, so we're not -- everything is -- is out on -- on a table so everyone knows where we stand. I -- again, as I mentioned last week, I believe you're able with __ Page 43 October 26, 2007 in Section E, little I, to put up a wall to limit it to 55DBA or whatever the sound is. But for some reason with live outdoor entertainment, little double I, you're not able to do that. And I -- I don't know why people want to discriminate against live music. And if you're keeping it below 55DBA or whatever the standard ultimately is reached, if someone 150 feet away can't hear it, does it matter whether it's live or a DJ or a TV? So, I would suggest or propose that if you can limit a live band to 55DBA, or whatever the standard is, why not give the establishment that possibility. I don't know if it's possible because I would imagine a live band is loud, but maybe that's -- should just be given consideration. Moving up now, Section D, on Page 4, the conditional use section of the LDC is referenced there. I know there's already some questioning about that. My question would be once it gets to the BCC, under the conditional use procedures, a super majority vote is required, four out of five BCC members, and I didn't know if that was the intent of the drafter to require whatever action the BCC take in this kind of scenano. Do you need four votes, because under the conditional use procedure, you do. And maybe that should be clarified. I -- that pretty much wraps up my comments. A lot of them you guys already hit on. I -- I would suggest again, I'm a little concerned about moving this so rapidly through the process. There's another amendment we discussed, this outdoor serving area amendment that's going to be discussed, and it seems to me that when the Stevie Tomato's issue came up before the BCC, Commissioner Halas, there was a lot of talk about the noise control ordinance and how that could be amended to address this. Page 44 October 26, 2007 So, it seems to me if we have two or three different versions out there, there's -- it's only going to create more confusion that's not necessary. Ifwe go through this in a methodical way, perhaps the noise control ordinance alone is the only thing that needs to be amended here. Commissioner Halas talked about -- I can't remember __ something -- some DBA. It's DCA or some other way of measuring sound. And there may be a better way of going at this rather than pushing all this through so quickly with different versions flying around and the public not knowing about this, and in my opinion, more importantly, existing outdoor areas not knowing about what's going on. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I couldn't agree with you more. I don't like to rush this through. I think it's a very important ordinance and it's a shame we have to rush it through. But the only reason we have to rush it is because nothing was resolved in the public sector over the last six, seven or eight months. Had somebody happened before, then we wouldn't be forced to do this. That's just a general statement. CHAIRMAN STRAIN: Okay. Any other comments ofMr. Brooker? Clay, thank you. MR. BROOKER: Thank you. CHAIRMAN STRAIN: Appreciate your time. Any other general comments from the planning commission before we ask for a vote? Mr. Schiffer? COMMISSIONER SCHIFFER: I think the first meeting we had Page 45 October 26, 2007 a concern that it was the failure of the sound ordinance that's causing the problem. I still believe the same thing. I mean, we're really wasting time, trying to come up with everything that if the public's being disturbed by a noise, then we should be addressing the noise and solving the noise problem. CHAIRMAN STRAIN: We've gone through this thing and suggested language on the premise that we basically are -- we have __ we've been forced to or we don't have any input. I would like to ask the board's consensus on one other item that came up and that is the separation elements being -- that's Item E, I and double I being taken out of the STP implementation language and really put into another section, go back in the noise ordinance where they most likely will be read, not in an implementation section like this. Is that a general consensus? Anybody have any -- okay. Now, Jeff, you've had a lot of input on this and you've just got a last piece of it. I know that we're obligated apparently to move this forward, so I'm going to suggest something here for the members of the planning commISSIOn. That we -- we recommend that it be sent to the BCC with a recommendation of denial. We've cleaned it up, and that language, Jeff, I'm sure you'll take benefit from it any way that you see permissible in going forward to the BCC. But the reasons for the recommendation also, it was not properly reviewed in the -- in the LDC cycle. It was not properly noticed to the community. I think because it has such a far ranging effect, not that we disagree with the idea of the need of the ordinance. MR. KLATZKOW: No. Again, we're talking about the sound portion of it or are we talking about the noncompatibility portion? Page 46 October 26, 2007 CHAIRMAN STRAIN: I think the -- everything that you have here needs to be run properly through the cycle. The sound portion does. There's too many ambiguities in that, and definitions of terms, what we mean by live entertainment versus entertainment. Those are all good points. What process is best to follow? Normally, they're flushed out in a full venting of this in the public process, especially through the DCA and the other boards -- the DSAC and the other boards that are involved. And I'm very concerned that didn't happen now. I'm not saying we don't need it. We absolutely need an ordinance, but I'm not sure that we do need damage by letting it wait for a few more months while it goes through cycle two, rather than rush it through on cycle one as a -- as an add on. I don't know what the rest of the impressions are by the board. Mr. Kolflat? COMMISSIONER KOLFLAT: Could you add on there also that they should look into the noise ordinance and possibly amending that to solve the problem. CHAIRMAN STRAIN: I think that would be fine. If someone wants to make a motion, and there's -- and I don't know if there's more discussion. Do you guys have any input? COMMISSIONER CARON: I thought you were just making a motion. CHAIRMAN STRAIN: Well, I -- I'll-- what I said, then I'll make into a motion. And I'll be specific, is that this -- we'll make a motion to recommend denial, not because we disagree with the intent of the ordinance but because we disagree with the -- the process in which it went through to be added on to this LDC cycle, that it wasn't fully vented and noticed to the community and that some sections of it Page 47 October 26, 2007 may be better placed in a noise ordinance rather than this ordinance. So, that's the motion. COMMISSIONER SCHIFFER: I second that. Could be more specific with that last portion about a sub __ subsection? CHAIRMAN STRAIN: SubSection E, I and E2-- COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: -- will be added, should be into the noise ordinance, not into the STP section of the LDC. COMMISSIONER SCHIFFER: That -- that would be good. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And -- and could you make it worded at the end again also that part of -- one of the reasons is lack of expiration of revisions of the noise ordinance because we never did that at all. CHAIRMAN STRAIN: Sorry. I'm trying to write-- COMMISSIONER SCHIFFER: Yeah. They're saying __ CHAIRMAN STRAIN: -- figure out what you said. COMMISSIONER SCHIFFER: -- one of the reasons we voted against it is the lack of expiration of revisions of the noise ordinance. CHAIRMAN STRAIN: I'm not sure the LDC language and appeal process would be -- should be -- has anything to do with the noise ordinance other than the fact we took two sections of it out and said it should go to the noise ordinance. COMMISSIONER SCHIFFER: Well, but this whole thing, I believe, could be solved in the noise ordinance, and had we explored that, I think we would -- we wouldn't have wasted these last two verSIOns. CHAIRMAN STRAIN: See, Bradley, the review of an STP-- COMMISSIONER SCHIFFER: Correct. CHAIRMAN STRAIN: -- you wouldn't want to put that in a Page 48 October 26, 2007 noise ordinance. You'd really want to put it in the LDC section. I mean, the STP section, so I'm not sure why -- I don't see how the noise ordinance would cure that part of this ordinance. COMMISSIONER SCHIFFER: Okay. Forget it then. Forget it. CHAIRMAN STRAIN: Okay. Okay. So, the motion stays as previously stated. It was seconded by Mr. Murray and Mr. Vigliotti. Let the record show Mr. Murray. Are there any further discussion? All those in favor, signify by saying aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? Motion carries unanimously six/zero. Thank you. Mr. Klatzkow? MR. KLATZKOW: Based on that, what I think I'm going to do, unless I'm missing something here, to bifurcate this ordinance. I'm going to send the not compatibility portion forward, and I'm going to take the sound portion of it and say that it's probably better off in the noise ordinance rather than the live. CHAIRMAN STRAIN: Absolutely. That is what we said. MR. KLATZKOW: Okay. CHAIRMAN STRAIN: Okay. Are there any other comments, issues? If none, motion to adjourn? COMMISSIONER VIGLIOTTI: I have one thing. CHAIRMAN STRAIN: Oh, before we do, Mr. Vigliotti. Page 49 October 26, 2007 COMMISSIONER VIGLIOTTI: Where's our schedule now? I will not be able to be here next Thursday. CHAIRMAN STRAIN: That's our next meeting. COMMISSIONER VIGLIOTTI: I can't make it. I'll be out of town. CHAIRMAN STRAIN: Okay. Now, our next meeting after that or -- I can't recall if we have any meetings in between. COMMISSIONER SCHIFFER: We had one scheduled Monday, but we won't -- CHAIRMAN STRAIN: Well, that won't be -- the Monday meeting for the AUIR will not a occur. COMMISSIONER VIGLIOTTI: That's out. COMMISSIONER CARON: Wait. CHAIRMAN STRAIN: No, there's -- there's no meetings for the planning commission. Wait a minute. We have the next -- MR. SCHMITT: You have -- CHAIRMAN STRAIN: Cocohatchee on the 14th. Is that still on or not? MR. SCHMITT: Cocohatchee on the 14th, yes, sir. CHAIRMAN STRAIN: Okay. So, after the 1st of November, we go to the Cocohatchee meeting on the 14th and a regular meeting on the 15th, and then a Cycle Two for the DLC on the 28th, which may be one that you can fit this into the board review is prior to the 28th. It might be more appropriate to pop that right that in here or we're off at least -- because you can get to DSAC with it by the -- and get back to us by then with it. Maybe the board would let that happen, so __ MR. SCHMITT: Their discretion. CHAIRMAN STRAIN: Right. Page 50 October 26, 2007 COMMISSIONER SCHIFFER: Will we be meeting here or back? CHAIRMAN STRAIN: Oh, no. We're all back. We're going back in chambers. Miss Caron? COMMISSIONER CARON: Do we not have to set up a date for schools? CHAIRMAN STRAIN: No. It's set up for the first and after it's our last time on the agenda. COMMISSIONER CARON: Okay. It is. Okay. CHAIRMAN STRAIN: Yes. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Okay. With that we'll make a motion to adjourn. COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER MURRAY: So moved. CHAIRMAN STRAIN: All in favor, aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRA Y: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: The meeting is adjourned. Thank you. ***** Page 5 I October 26, 2007 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:47 p.m. COLLIER COUNTY PLANNING COMMISSION MARK P. STRAIN, CCPC Chairman These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY ROSE MARIE WITT. Page 52