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CCPC Minutes 12/20/2007 R December 20, 2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida December 20, 2007 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed-Caron (Absent) Tor Kolflat Paul Midney Bob Murray Brad Schiffer Robert Vigliotti ALSO PRESENT: Jeffrey Klatzkow, Chief Asst. County Attorney Joseph Schmitt, CDES Administrator Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, DECEMBER 20, 2007, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORlDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERlALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRlOR TO THE RESPECTIVE PUBLIC HEARlNG. IN ANY CASE, WRlTTEN MATERlALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRlATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRlOR TO THE PUBLIC HEARlNG. ALL MATERlAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - OCTOBER 26, LDC MEETING; OCTOBER 26, AUIR MEETING; NOVEMBER I, 2007, REGULAR MEETING 6. BCC REPORT- RECAPS - NOVEMBER 13, 2007, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARlNGS A. Petition: PUDZ-2005-AR-8674, Virginia Anne Devisse, represented by D. Wayne Arnold, Q Grady Minor and Associates, P.A., requesting a rezone from the Agricultural (A) zoning district to the Residential Planned Unit Development (RPUD) zoning district to allow development of a maximum of 48 single-family, two- family, duplex, townhouse or multi-family dwelling units in a project to be known as the Hilton Hills RPUD. The subject property, consisting of 12:t acres is located in Section 13, Township 48, Range 25, Collier County, Florida. (Coordinator: Melissa Zone) CONTINUED INDEFINITELY B. Petition: PUDZ-2005-AR-9127, Myrtle Woods, L.L.C, represented by Dwight Nadeau, of RWA, Inc., requesting a rezone from C-4, and PUD to CPUD for a project known as the Myrtle Woods CPUD. The existing PUD sunselled in 2003 and provided for a maximum of 45 residential units and commercial development on a 5.66+/- acres of land. This rezone request will revitalize the Myrtle Woods PUD on the 5.66+/- acre project and add a 1.38 +/- acre parcel currently zoned C-4 to create a unified commercial development on the now 7.0+/- acre site. The subject property is located at the southeast corner of the intersection of Tamiami Trail East and Myrtle Lane. in Section 29, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Melissa Zone) CONTINUED to 1/3/08 1 C. Petition: V A-2006-AR-I 0092, Mohammed M. Rahman, represented by Stephen J. Fleming, P.E., requesting a variance from Section 5.05.05.B. of the LDC to reduce the lot width along the north and south property line from the required 150 feet to 135 feet, and to reduce the side yard setback along the west property line from the required 40 feet to 25 feet to permit an automobile service station. The subject property is located at 2393 Lake Trafford Road, Section 32, Township 46 South, Range 29 East, Collier County, Florida. (Coordinator: Nancy Gundlach) D. Petition: V A-2007-AR-12232, John Hamilton, represented by Michael T. Traficante, Esq., requesting a 3.9- foot Variance from the 7.5-foot side yard setback requirement. The ,,0. I 3-acre site contains a single-family dwelling with a 3.6-foot side yard setback along its northeastern boundary. The subject site is located at 85 Shores Aveoue, in Section 22, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: John-David Moss) E. Rural Fringe Mixed-Use District. request that the Collier County Planning Commission, through formal direction from the Board of County Commissioners evaluate and consider the feasibility of Policy Option 3 as it relates to the potential inclusion of determined illegal Rural Fringe Mixed-Use District (RFMUD) Sending Lands property into the TDR Program. F. Petition CPSP-2007-6 -_A petition requesting an amendment to the Potable Water Sub-Element of the Public Facilities Element, to amend Policy 1.7 to add a reference to the "Ten-year Water Supply Facilities Work Plan." (Coordinator: Carolina Valera, Principal Planner. 9. OLD BUSINESS 10. NEW BUSINESS 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 12/20/07 cepe Agenda/RBlsp 2 December 20, 2007 CHAIRMAN STRAIN: Welcome, everyone, to the Collier County Planning Commission. December 20th, 2007. If you'll all please rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL BY SECRETARY CHAIRMAN STRAIN: Thank you. We'll take the roll call. Mr. Kolflat? COMMISSIONER KOLFLA T: Here. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Present. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: Here. CHAIRMAN STRAIN: Ms. Caron is absent today. Chairman is here. Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Right here. CHAIRMAN STRAIN: And Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. CHAIRMAN STRAIN: Thank you. Item #3 and Item #4 ADDENDA TO THE AGENDA; PLANNING COMMISSION ABSENCES Okay, next is addenda to the agenda. Page 2 December 20, 2007 First of all, we have our next meetings coming up -- our next regular meeting is January 30th, 8:30 in this room. Is everybody going to make it? COMMISSIONER VIGLIOTTI: I'll be out of town. CHAIRMAN STRAIN: Anybody else? COMMISSIONER SCHIFFER: I'll be here. CHAIRMAN STRAIN: We'll have a quorum. Right now the agenda for that meeting has two items on it. I expect it to be a short meeting. We also have a meeting on the 9th of January in this room at 8:30. It's a continuation of the LDC meeting of information that we've asked to have, slightly revised in most cases. I would hope we can get through that in the morning as well. We'll have to wait and see. And on the 11 th of January, we have a continuation and hopefully final meeting on the Cocohatchee Bert Harris claim that we started last week. Like the others, I'm optimistic we can get through that in half a day. So hopefully if we stick to the tasks that we were assigned, we might able to. We'll see where it goes. And the other item for today is we have a request for a continuation from staff for Petition CPSP-2007-6. It's the potable water sub-element. It was going to be continued indefinitely. Can I get staffs concurrence on that? MS. VALERA: Good morning. Carolina Valera, Principal Planner with the Comprehensive Planning Department. Yes, Commissioners, we would like to continue this item. CHAIRMAN STRAIN: Okay. We're going to have a few others, so why don't we do them all at once. There's Petition PUDZ-20005-AR-8674, which is the Hilton Hills RPUD was scheduled for today. That's noted as being continued indefinitely. There's Petition PUDZ-2005-AR-9l27, the Myrtle Woods LLC. I Page 3 December 20, 2007 understand that's being requested to be continued until I believe the first meeting in January. And those are the three continuances requested for today. Is there a motion to approve the continuances? COMMISSIONER MURRAY: So moved. CHAIRMAN STRAIN: Mr. Murray. Seconded by? COMMISSIONER ADELSTEIN: (Indicating.) CHAIRMAN STRAIN: Commissioner Adelstein. Any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Any opposed? (No response.) CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Okay, those items will be continued to future dates. Item #5 APPROVAL OF MINUTES - OCTOBER 26, LDC MEETING; OCTOBER 26,2007, AUIR MEETING; NOVEMBER 1, 2007, REGULAR MEETING We have some minutes to approve. We're going to hold off on approving the October 26th LDC meeting. There's some further research on that one needed. Page 4 December 20, 2007 But we would like a recommendation to approve the October 26th AUIR meeting. Is there such a motion? COMMISSIONER MURRAY: So moved. CHAIRMAN STRAIN: Mr. Murray made the motion. COMMISSIONER ADELSTEIN: Second it. CHAIRMAN STRAIN: Seconded by Commissioner Adelstein. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: We have the November 1st, 2007 regular meeting. Is there a motion to recommend approval of that? COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: Mr. Murray again. Seconded by? COMMISSIONER ADELSTEIN: I'll second. CHAIRMAN STRAIN: Mr. Adelstein again. Any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Any opposed? (No response.) Page 5 December 20, 2007 CHAIRMAN STRAIN: Motion again carries. Item # 6 BCC REPORT - RECAPS - NOVEMBER 13,2007, REGULAR MEETING BCC reports. I just noticed, Kay, that we went to the format in chart form. I think that's excellent. Pretty clear. MS. DESELEM: Yes. CHAIRMAN STRAIN: Thank you. I don't know if we need further discussion on it. I noticed that the BCC decided not to uphold the well field site recommendation we made on Naples Motor Coach Resort. I'll be following up with comprehensive planning staff on a concern I have with that, since it's in the coastal high hazard area and the CCME, as well as the CIE prohibit infrastructure improvements for non new developments in the coastal high hazard area to be utilized there. I asked David Weeks to respond to me on this. I haven't got a response back, you're well aware of it. So I'll just wait and see what happens. MS. DESELEM: I talked to Mike DeRuntz of Comprehensive Planning yesterday. It has been assigned to him and he is working on it. And it's my understanding that he will be contacting you. CHAIRMAN STRAIN: Okay, but I e-mailed David Weeks so I'm hoping David will respond. MS. DESELEM: I guess he's working with his staff and he's assigned that particular issue to Mike DeRuntz and -- CHAIRMAN STRAIN: Okay, Michael's been there a lot less time than David has. MS. DESELEM: I'm sure they'll get back to you on it. CHAIRMAN STRAIN: Okay, thank you. Item #7 Page 6 December 20,2007 CHAIRMAN'S REPORT Chairman's report. I don't think we have any. Item #8C PETITION: V A-2006-AR-10092, MOHAMMED M. RAHMAN We'll move right into advertised public hearings. First petition for today is V A-2006-AR-10092, Mohammed M. Rahman, 2393 Lake Trafford Road. This is a variance request in the Immokalee area. All those wishing to testify on behalf of this action, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Any disclosures on the part of planning commission? Mr. Midney? COMMISSIONER MIDNEY: Yeah, I met with Mr. Rahman and Mr. Fleming. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: I had an e-mail fromMr.Fleming.It.s kind of interesting, I won't go into the details, but needless to say we didn't get to talk on it. I did talk to Mr. Thomas about it, and that's the extent of my disclosures. Okay, and if the applicant is ready for a presentation. You have to come up to the microphone. Mr. Fleming, you're new to this operation, I can tell. MR. FLEMING: That's correct. Stephen Fleming, with Stephen 1. Fleming and Associates, Project Engineer, representing Mohammed Rahman from Mahmuda, Page 7 December 20, 2007 Inc. And I'd like to just go over the project. CHAIRMAN STRAIN: You might pull the speaker a little closer to you. MR. FLEMING: Okay? CHAIRMAN STRAIN: There you go. Now you can hear. MR. FLEMING: Much better. What I can do is give you a project description, brief, and then go over some of the points that I'd like to make. And then I can answer any questions that you might have. CHAIRMAN STRAIN: Thank you. MR. FLEMING: The site is an existing convenient store. It's a drive-through convenient store that has two driveway connections off of Lake Trafford Road. And also one connection off of Warden Lane. What we'd like to propose is a brand new convenient store with gas facilities, making it an automobile service station. The new building will be 4,000 square feet. The existing building is 1,000 square feet. That's to be demolished. It will contain two covered gas pumps, 22 parking spaces, a new driveway connection on Lake Trafford Road, a reduction, actually, from two to one, all the landscaping, bringing it up to code, and some buffer zones with some walls, actually. The current -- the site is currently zoned C-3, and the surrounding properties are residential. I'd just like to say that the proposed project site does flow well with regard to traffic. And there is adequate parking, as well as adequate areas for landscaping and stormwater management. However, the site does not meet the required minimum lot frontage of 150 feet. We have 135 feet along Lake Trafford Road. In addition, we're asking for a variance on the building setback from 40 feet to 25 feet. So what we're lacking is 15 feet, actually, to make this an automobile service station. So that would be two variances that we're actually requesting, Page 8 December 20, 2007 one for the lot width reduction from 150 feet to 135 feet, the other one for the building setback from 40 feet to 25 feet. Also, I'd just like to make five points, if I will, and then I can take some questions. The first point that I'd like to make is the existing site is old and does not meet the LDC standards and requirements relating to building architecture and landscaping. The new landscaping and construction of the new building will greatly enhance the beautification of the site; therefore, contributing to the surrounding community. Number two: New sidewalks and handicap access points will make the site more accessible to the surrounding community. A number of nearby residents do not drive and are forced to walk to get goods. They will no longer have to cross Lake Trafford Road to get these goods, coming from a safety standpoint. Number three: The subject property provides an existing service to the community providing goods. The proposed new automobile service station will enhance the quality of services to the surrounding community. Number four: Along Lake Trafford Road there's one existing gas station that is located on the north side of the road, two to three blocks to the east. Providing gas services on the southern side of Lake Trafford will serve to reduce impacts to State Road 29 for the eastbound traffic flow. This will actually increase the number of gasoline service stations options along the southern side -- yeah, the southern side. Number five: The existing driveway connections along Lake Trafford Road, there's actually two of them, those do not meet county code and are actually a danger to the community. Weare proposing a right in/right out only change reduction to just one driveway connection along Lake Trafford. And this will serve to increase the safety of vehicles entering and exiting the site. Traffic will no longer Page 9 December 20, 2007 be directed into the site from the westbound lane. And that concludes my points, and I'd like to take any questions if you may have some. CHAIRMAN STRAIN: Thank you. Mr. Schiffer, then Mr. Kolflat. COMMISSIONER SCHIFFER: Stephen, what's the existing use right now? What is there, or what historically has been there? MR. FLEMING: I believe since 1987 it's been a convenient drive-through store. So the drive-through lanes are him coming from Lake Trafford. That's the existing use. And it's open for business as we speak. COMMISSIONER SCHIFFER: But when you say -- so it's not a walk-up convenient store, it's purely a drive-through, or -- MR. FLEMING: From my experience it's a drive-through. COMMISSIONER SCHIFFER: Okay. All right, thank you. I'm done, Mr. Chairman. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, you have there the Garden Lake Apartment building. Are there any other residences there on the west side at all, in addition to Garden Lake Apartments? MR. FLEMING: Garden Lake entirely fronts the property. COMMISSIONER KOLFLA T: On what side? MR. FLEMING: On the west side. That's Warden Lane -- I'm sorry, that's the east side is Warden Lane. And on the west side you only have the Garden Lake Apartments. COMMISSIONER KOLFLA T: That's the only residents on the west side? MR. FLEMING: That's correct. COMMISSIONER KOLFLA T: But on the south and to the east there are residential areas; is that correct? MR. FLEMING: That's correct. COMMISSIONER KOLFLAT: Was there any kind of Page 10 December 20, 2007 investigation with them if there's any people there that were opposed to it or in favor of it? MR. FLEMING: Along the south and the east sides? COMMISSIONER KOLFLA T: Yes. MR. FLEMING: We did send out notifications, and we did have a brief interaction with one of the residents. COMMISSIONER KOLFLAT: Was that a neighborhood meeting that you had? MR. FLEMING: No, sir. COMMISSIONER KOLFLA T: This was just a meeting you set up voluntarily? MR. FLEMING: This was a notification that I sent out via mail to the surrounding property owners. COMMISSIONER KOLFLA T: And what was the response that you received from those meetings? MR. FLEMING: Well, the only correlation we had was that one of the neighbors was opposed and might have an issue with the proposed development. COMMISSIONER KOLFLA T: What was his reason for being opposed? MR. FLEMING: Increased traffic flow. COMMISSIONER KOLFLAT: Thank you very much, Mark. CHAIRMAN STRAIN: You're welcome. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I was going to ask about neighborhood information and the opposition. What condition is the existing building in? MR. FLEMING: I would say it's in fine condition, although it does not meet county codes for architecture. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Any other questions at this time? (No response.) Page 11 December 20, 2007 CHAIRMAN STRAIN: I have a couple. The staff has recommended denial. But on the premise that it might be approved, they've suggested two conditions. Are you familiar with those two conditions? MR. FLEMING: Yes, sir. CHAIRMAN STRAIN: Do you have any objection to them? MR. FLEMING: No, sir. CHAIRMAN STRAIN: Anybody else have any questions? (No response.) CHAIRMAN STRAIN: Thank you. We'll ask for staffs presentation now. MS. GUNDLACH: Good morning, Commissioners. I'm Nancy Gundlach, Principal Planner with Zoning and Land Development Review. And I just have a few points I'd like to make for clarification. In 1987 this building was originally permitted for a fast food restaurant. And regarding the neighborhood information meeting, there is none required for a variance such as this. So I just wanted to make that clear for the record. And we are recommending denial of this petition because there are no land-related hardships associated with this property. And so therefore we recommend that you forward this petition to the Board of Zoning Appeals with a recommendation of a denial. And if you should choose to approve this petition today, we do have two recommendations. And the first recommendation I would like to make a slight revision to. And I'm going to read that into the record. Number one, the IS-foot variance granted is limited to the side yard encroachment for the proposed convenient store along the west property boundary. And these are the new words. And to a IS-foot lot width reduction. And the rest reads the same as written. And it states, as depicted in the applicant's submitted site plan dated February 14th Page 12 December 20, 2007 of 2007, included as Exhibit A. The second condition would be: In addition to the required landscaping on the outside of the eight-foot high wall, the inside of the wall shall be landscaped with a single row three-foot minimum high hedge planted a minimum of three feet on center, and maintained at a minimum height of five feet. And that concludes my summary for today. If you should have any other questions -- CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. Although there is no requirement for a neighborhood informational meeting, there's no preclusion of that if the developer wants to take that initiative, is there? MS. GUNDLACH: That's correct. COMMISSIONER KOLFLA T: Thank you. CHAIRMAN STRAIN: Nancy, have there been any proposed hours of operation for this facility? MS. GUNDLACH: Not that I'm aware of. CHAIRMAN STRAIN: The reason I asked, it's in a C-3 zone surrounded by residential, and that may pose a compatibility problem if there's any extended hours of operation. So I guess what we'll end up doing is reasking the applicant what they intend on for hours of operation, so -- any other questions of staff? Mr. Schiffer? COMMISSIONER SCHIFFER: Nancy, on the aerial you provided, it shows a Garden Lake Circle being noted. Is that a private drive? MS. GUNDLACH: Yes, it is. That's actually a PUD where that's located. CHAIRMAN STRAIN: Any other questions of staff? (No response.) Page 13 December 20, 2007 CHAIRMAN STRAIN: Okay, thank you, Nancy. And before we hear from the public, I'd like to ask Mr. Fleming to come back up for a moment and respond to my question concerning hours of operation. MR. FLEMING: The owner would -- CHAIRMAN STRAIN: Stephen Fleming for the record, right? You need to state your name when you start here, sir, so that the court recorder knows each time who you are. MR. FLEMING: Yes, sir. Stephen Fleming. CHAIRMAN STRAIN: Okay, thank you. MR. FLEMING: The owners would like to maintain hours of operation 5:00 a.m. to 11 :00 p.m. CHAIRMAN STRAIN: Thank you very much, sir. MR. FLEMING: Thank you. CHAIRMAN STRAIN: Okay, any other questions? (No response.) CHAIRMAN STRAIN: Ifnot, we'll hear from the public. Mr. Thomas, I think you're probably the only public speaker here. MS. DESELEM: Excuse me, we have three. CHAIRMAN STRAIN: You have three. MS. DESELEM: We have three. CHAIRMAN STRAIN: Okay, I didn't see everybody sitting here. That's great. Who's first then on the list? MS. DESELEM: The first speaker that registered is Carlos Gonzalez, to be followed by Jim Schultz, I believe. MR. GONZALEZ: Good morning, Board. My name is Carlos Gonzales. I live at 1104 Marjorie Street, about approximately 150 feet from the proposed development. As a resident, I 100 percent opposed to this project. Living there I'm subject and family members subject to a lot of traffic crossing the roads there in the morning. In the afternoon there's a lot of walking Page 14 December 20, 2007 traffic that comes from Eden Park across the -- you know, these people get to this drive-through, which, you know, they purchase beer -- whatever the case is, there's a lot of road traffic crossing this Lake Trafford Road. There's been crimes committed, you know, because of this, you know, people crossing -- you know, people getting run over, shot, you know, a couple blocks down there's been a person killed. So I'm 100 percent opposed to this project, the future development. As a resident, I've gone around the neighborhood and spoke to some of the current residents, and they also oppose this proposed development. They feel the existing infrastructure is not adequate to support this future development. Furthermore, they're working individuals, you know, professionals. Not everybody there, you know, work out in the -- you know, picking crops and whatnot. We are professionals that live there. We've moved to Immokalee, you know, to maintain a country living. And that's where a lot of the residents, you know, feel and opposed to this development. Any questions? COMMISSIONER VIGLIOTTI: Yeah, I have one. CHAIRMAN STRAIN: Any questions? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: What correlation do you draw between the shooting, this location or the proposed location? MR. GONZALEZ: Well, there isn't a specific correlation. I'm not, you know, forecasting the future or not. But when there's, you know, a lot of people coming in and out, you know, for example, there's a Miromar Shopping Center or a convenient store to the south of Lake Trafford Road about a half a mile down. There's been, you know, cars breaking (sic) in. You know, it's just -- I'm afraid that if we allow this gas station, you know, there could be, you know, I don't know, you know, crimes committed, you know, the nearby residents, you know, affected to this or exposed to this, you know. You know, Page 15 December 20, 2007 people committing crimes and whatnot. So to answer your question are we are opposed to this development, because we moved to Immokalee to maintain, you know, a humble, you know, country, you know, resident living. CHAIRMAN STRAIN: Are there any other questions? Mr. Murray? COMMISSIONER MURRA Y: Good morning, sir. This is zoned C-3, so that's commercial. MR. GONZALEZ: Correct. COMMISSIONER MURRAY: Would you have a preference to what would be there? And if you did, would you think that that would not also draw the potential for crime if crime exists? MR. GONZALEZ: Well, let me just start by answering, I've offered to buy the property from the current owner to shut it down. There's extreme lights. Like I say, I live approximately 175 feet from the frontage north side of this proposed project. So there isn't much traffic now. It's only opened couple days a week now, as Mr. Fleming said. You know, I don't think he knows the correct operation hours there. You know, I've been keeping an eye on this project. You know, I've, you know, lived -- when I first moved into this residence, the place was shut down. So now currently there's only maybe two hours working -- or two days, probably four, five hours a night. And that generates some traffic, and the lights are on. And I mean, it's just a lot of inconvenience for, you know, the surrounding residents. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: You had said you offered to buy this location. For what purpose would you do if you purchased it? MR. GONZALEZ: Shut it down. COMMISSIONER VIGLIOTTI: And? MR. GONZALEZ: Shut it down, you know, for future. You Page 16 December 20,2007 know, just to keep it down -- I mean, there's just too much going on at that property site. COMMISSIONER VIGLIOTTI: So you'd shut it down, let it sit idle -- MR. GONZALEZ: Yes. COMMISSIONER VIGLIOTTI: -- and deteriorate. MR. GONZALEZ: Yes. COMMISSIONER VIGLIOTTI: Okay, thank you. MR. GONZALEZ: It's deteriorated now. If you've been out to the site, you know, the roof is all -- you know, hasn't been worked on. They've recently painted, you know, halfway painted the building. So it's -- you know, landscaping, it's just a mess. So I hope that answered your question. CHAIRMAN STRAIN: So you had proposed to purchase the property, and you didn't purchase it for what reason? MR. GONZALEZ: They didn't sell it to me. CHAIRMAN STRAIN: Okay, they sold it to somebody else, the gentleman that's here today then, or whoever is trying to change it today? MR. GONZALEZ: No, the current owner is the person. I spoke to his nephew that works there at the convenient -- or at the drive-through, and he said it, you know, wasn't for sale. CHAIRMAN STRAIN: And you were simply going to buy it so that nothing could be built on the property. MR. GONZALEZ: Correct. CHAIRMAN STRAIN: I wish everybody had that opportunity. Okay, thank you, sir. I appreciate it. No other questions. Thank you. And the next public speaker. Mr. Schultz I would think is the subject of the third item today, not the first. MS. DESELEM: That's correct. There are two speakers. He is for item E. The next speaker is Fred Thomas, and he is your last speaker on Page 17 December 20,2007 this petition. CHAIRMAN STRAIN: Thank you. MR. THOMAS: For the record, my name is Fred Thomas. I'm a resident of Immokalee. I've got to describe this site, because you all have -- you all are not -- and he's agreeing with me, that you all don't have any clue what we're talking about. Lake Trafford Road is a major east-west thoroughfare in Immokalee. This location is about two and a half blocks from Carson Road, a new intersection that was brought all the way through going north and south. On the corner -- on the northwest corner of Carson Road and Lake Trafford is a gas station/convenient store. When you come south and go east on Lake Trafford Road, you come to a couple of residences; one was converted to a church, I believe. A little further down you've got the Garden Lakes Apartments, which has a long driveway going back and the residents are in the back. And right adjacent to the Garden Lake Apartment -- I'm sorry, I missed one. There's Summer Glen first, and then further -- which is an elderly complex on that same side of the street. And further down you've got the Garden Lake Apartments about a block down. And then right next to it you have -- here's what you've got. You've got a drive-through, narrow drive-through store where the accessways into it or not consistent with current standards that could operate right now from 5 :30 in the morning till 11 :00 at night. It's been marginal business operating out of there. But if somebody wanted to, without a variance, they could operate the business right now, which would be a very dangerous situation the way the traffic is working. There are no protections between the folks in Garden Lakes coming across the driveway to go to the store right now, okay? What they're proposing to do is take that building down, put up a different set of buildings, have a different accessway to get in and out Page 18 December 20, 2007 and shut down the possibility of cross-traffic between the Garden Lakes and this property without them not coming around in the right way, okay? We have an opportunity with this variance to make a much safer situation than you have here now, a much safer situation than you have here now, okay? Further understand, if we put another gas station there, in our future land use plans we're going to bring Little League Road from 82 all the way to 846. And Little League Road is about an eighth of a mile to the west of this location. That means that folks that live to the west of this location can come, get their goods and services and go back and never have to impact Lake Trafford Road going to the east. Even if they want to go to Fort Myers, they can go out the back way. So it's good to have these kind of services out there where people can come in and go. But you've got to clean that situation up, because it's a bad situation from a sight standpoint and a hazard standpoint, because of the way the building is configured right now. Because right now it is set up so that you can drive your car around the building, make your purchase without getting out of the car while other kids and whatnot are trying to get into the building to make purchases. So this variance and this improvement would be a safety thing, especially with the requirements that the county has made with the barriers and that kind of stuff, you know, the wall down between the two places. That would make it a whole lot better. COMMISSIONER SCHIFFER: Mark, I -- CHAIRMAN STRAIN: Thank you, Fred. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, Mr. Thomas, what is this land going to be shown on the future -- the plan here? MR. THOMAS: It's going to be all commercial. Page 19 December 20, 2007 COMMISSIONER SCHIFFER: All the way down that street? MR. THOMAS: All the way down the street. In fact, on the southeast corner of Carson Road and Lake Trafford, just down the street, there's 130,000 square feet of commercial already approved in the PUD, Arrowhead PUD. COMMISSIONER SCHIFFER: The other redeeming value I thought in this thing might be the fact that does that neighborhood have a lot of people living there that don't have cars that would be walking to this -- MR. THOMAS: A lot of pedestrians. That's the point that Fleming tried to make and didn't make it strong enough. Right now the elderly folks and the folks in Garden Lakes have to cross Lake Trafford to get a loaf of bread, a pack of cigarettes or whatever they want. Now they'll be able to turn right, come down almost the same distance and go into this store without ever crossing Lake Trafford Road. COMMISSIONER SCHIFFER: Okay. In the future land use plan are you going to have any lighting requirements? I mean, the concern I have about a use like this is that it's a bright use. I mean, I know we can discussion shielding, light from property lines, but it's going to -- the ground's going to be brightly lit. And you want that, because you don't want a crime situation. MR. THOMAS: As I looked at the site plan for this thing, the lighted portion is going to be on the Lake Trafford side. COMMISSIONER SCHIFFER: Under the canopy? MR. THOMAS: Under the canopy and on the Lake Trafford side. And the new building would be between Lake Trafford and the gas pumps and the residential further down the street. There's only one resident, one residential unit that might be affected about that, and that would be the one across to the east. Across, I think it's Warden Lake or Warden Lane or something. That's the only residents. Otherwise you'll have a new building screening the ones down, further down, Page 20 December 20, 2007 you know, from what's happening on Lake Trafford. COMMISSIONER SCHIFFER: Let me just say it again, is that in the future plan that's proposed that the south side of Lake Trafford Road be commercial. MR. THOMAS: Yes. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm sorry, it's not for him, it's for staff. Do we have somebody here from -- CHAIRMAN STRAIN: Let's wait till we get to staff. Do you have any other questions of Mr. Thomas? COMMISSIONER VIGLIOTTI: No, thank you. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Thank you, Fred. MR. THOMAS: Anything I can do to help. CHAIRMAN STRAIN: Okay, staff, Mr. Vigliotti has a question from members of staff. COMMISSIONER VIGLIOTTI: Do we have anyone here from transportation? MS. DESELEM: No, we do not. COMMISSIONER VIGLIOTTI: Okay, then I will ask you. I don't see any recommendations, based upon transportation problems or transportation issues. Do you see a problem with additional traffic, ins and outs of the property? MS. GUNDLACH: Transportation, they don't evaluate variances. However, they will be evaluating this particular project at the time of SDP. COMMISSIONER VIGLIOTTI: So that will be fine, at SDP they can decide if it's a problem or not. MS. GUNDLACH: Yes. COMMISSIONER VIGLIOTTI: And if it's a problem, they can Page 21 December 20,2007 address it at that time. MS. GUNDLACH: Yes. COMMISSIONER VIGLIOTTI: Okay, thank you. COMMISSIONER MIDNEY: Mark? CHAIRMAN STRAIN: Mr. Midney, then Mr. Schiffer. COMMISSIONER MIDNEY: I'd just like to make a comment about the traffic, if that's acceptable. CHAIRMAN STRAIN: Go right ahead. COMMISSIONER MIDNEY: I think it will probably be a plus for the traffic. Because it will be something that will capture traffic and especially like for the gas stuff and for the convenience stuff. It will probably prevent longer trips along the road. But I don't think it will be generating a lot of new traffic. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And question to Nancy. When you introduced this, you said that it was -- has a permit to be a fast food restaurant? MS. GUNDLACH: When it was originally permitted back in 1987, it was permitted for a fast food restaurant. COMMISSIONER SCHIFFER: So the -- but the use described today is not a fast food restaurant. MS. GUNDLACH: No, it's no longer a fast food restaurant. CHAIRMAN STRAIN: Mr. Thomas, go ahead. MR. THOMAS: Fred Thomas back. It's never been a fast food restaurant there. Never. I've been here since '86. It has never been a fast food restaurant. It's always been a drive-through store. CHAIRMAN STRAIN: Thank you, sir. COMMISSIONER SCHIFFER: But Mr. Thomas's concern about the operation, couldn't you cure that by making it become a fast food restaurant? Anyway, enough said. CHAIRMAN STRAIN: Any other questions of staff, anybody Page 22 December 20, 2007 else? (No response.) CHAIRMAN STRAIN: With that, we'll close the public hearing and entertain a motion. Mr. Midney? COMMISSIONER MIDNEY: I'd like to move that V A-2006-AR-I0092 mini-supermarket be forwarded to the BCC with a recommendation of approval, with staff recommendations, including the revised staff recommendations that -- CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: I'll second it. CHAIRMAN STRAIN: Mr. Midney made the motion, Mr. Schiffer seconded. Is there any discussion? Mr. Midney? COMMISSIONER MIDNEY: Yes, I would just like to say why I think it's a good idea. Right now as everyone has said, the site has been abandoned. It looks pretty nasty. It's only open for four or five hours at night. This would -- in the future Lake Trafford is going to be four-laned, so there will be a need for more business. In Immokalee it's not necessarily easy to run a small business. This businessman who's going to be running this has had a successful convenient store in another location for several years. While in general I think variances are not a good idea, I think on the balance this will be a service to the community because it will increase competition, it will be a way for pedestrians to be able to purchase food without having to walk and cross that busy road. And I think that it will be -- on the whole it will be a positive because it will all be up to code. I think it will be attractive and I think it's a good idea. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yes. And Commissioner Schiffer Page 23 December 20, 2007 brought it up and I was going to bring it up, too. Especially in light of 5:00 a.m. to 11:00 p.m., which is apparently okay, low lighting, some kind of shielding or perhaps modification of lighting to help assure that the neighbors do not have light problems from this. CHAIRMAN STRAIN: I believe that may be part of the code already, Mr. Murray. Isn't it -- are lighting issues addressed in the code? MS. GUNDLACH: Yes, it is. COMMISSIONER MURRAY: Okay. I do recall that there was a gas station we did some time ago where we actually brought the lighting down from the code, and that was what I was trying to relate. But if the code is adequate and gives the residents no problem from glare, that's fine. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: There was a concern I have, having been near one of these with a studio is, is there a way we could limit outside speakers on these things? I know that there may be some code requirements for speakers at the gas pumps but, you know, the one I lived in, the people used to yell at people hanging out through the speaker systems and stuff. So it would be nice if we could keep this nice and quiet. I think the brightness of it is a negative, but having Christmas carols or some idiot yelling at vagrants through a speaker system is not a good idea. CHAIRMAN STRAIN: Would a speaker system have to qualify as outside entertainment in this case and have to be under the noise ordinance requirements for permitting? COMMISSIONER MURRAY: Get a table and chairs out there. MS. GUNDLACH: Oh, my goodness. I'm going to defer to my experts over here. MR. SCHMITT: For the record, Joe Schmitt. The only way it would be impacted by the noise ordinance, if it Page 24 December 20, 2007 exceeded the limits, decibel limits and the time limits as well. So probably most likely not. COMMISSIONER SCHIFFER: So I could add a condition that no exterior speakers unless required by some life safety code somewhere. I mean, there could be a requirement at the pumps for the attendant to tell the guy his car is on fire. MR. SCHMITT: Yeah, that would be the only point I'd bring out is that would not prohibit some kind of speaker at the pump if there was a night attendant having to talk to somebody at the pump. But that's pretty localized. So what you're basically saying is no outdoor P A system that's playing elevator music or some other type of music. COMMISSIONER SCHIFFER: Essentially no exterior speakers, unless required by a governing authority. CHAIRMAN STRAIN: Mr. Midney, did you want to comment on that? COMMISSIONER MIDNEY: Yeah, we don't have any service stations in Immokalee that have speakers that I'm aware of. CHAIRMAN STRAIN: I think we're trying to cover it for now and the future. But before we ask you to include that in your motion, let's make sure we have everything. And the only thing I hadn't mentioned is the limitation of hours of operation. And since 5:00 a.m. to 11 :00 p.m. were volunteered and there doesn't seem to be -- that seems to be reasonable, I would suggest we lock it into that so it can't go 24 hours and cause more of a concern. Does everybody -- COMMISSIONER MIDNEY: That's fine. CHAIRMAN STRAIN: Now, let's make sure we have everything. Motion was made to include the two staff recommendations as revised here, with the language inserted at this meeting, which under the first one included adding language to that it's a IS-foot lot width Page 25 December 20, 2007 reduction, as well as the rest of the language in number one. Number two stayed as is. The third condition would be limit outside speakers to code required speakers only, ifthere's such required by an agency. And the fourth item would be limit the hours from 5:00 a.m. to 11:00 p.m. Is that in conformance of what staff understands? MS. GUNDLACH: That's correct. CHAIRMAN STRAIN: Clear enough? MS. GUNDLACH: Yes. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Does the motion maker accept those conditions? COMMISSIONER MIDNEY: (Nods head affirmatively.) CHAIRMAN STRAIN: That nod means a yes? COMMISSIONER MIDNEY: Yes. CHAIRMAN STRAIN: Does the second accept it? COMMISSIONER SCHIFFER: Yes, I do, Mark. CHAIRMAN STRAIN: Okay, both motion maker and the second accept them. Any further discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed. (No response.) Page 26 December 20, 2007 CHAIRMAN STRAIN: Motion carries 7-0. Thank you. Merry Christmas to you all. Thank you, Fred. Item #8D PETITION: VA-2007-AR-12232, JOHN HAMILTON Next item on today's agenda is Petition V A-2007-AR-12232. It's noted as the Hamilton variance. And it's up in The Shores -- 85 Shores Avenue, in Palm River Shores subdivision. All those wishing to partake in this particular item, please rise, be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Any disclosures on the part of planning commission? (No response.) CHAIRMAN STRAIN: Hearing none, we'll proceed. Applicant's presentation? MR. TRAFICANTE: Good morning, Mr. Chairman and fellow commissioners. My name is Michael Traficante, and I'm appearing on behalf of the applicant, John Hamilton. I just want to go through a brief historical background, as well as the factors that are under the Land Development Code before opening up to questions, as the staff report prepared by John-David Moss was all-inclusive and pretty much summarized everything to the fullest extent. Our client purchased the property at issue, which is a single-family residence, on January 27th, 2005. The original structure was built on -- in or about 1973, according to the cards that we've received from the property appraiser's office. The property and the surrounding property is all zoned RSF-4. It is a platted residential subdivision. Page 27 December 20, 2007 We are seeking an after-the-fact variance for -- as you can see, I've illustrated, the highlighted portion is the sole portion that's encroaching. When we first filled out our variance application, we had originally thought it was a five-foot setback on the sides, due to the date that the building was built, the structure was built. However, after investigation, the county had discovered that there was an improvement that our client wasn't aware of, so in accordance with that in 1994 the improvement was made so there would be a seven and a half foot setback pertaining to the site at issue. As you can see from the survey that was attached to your materials, there is an encroachment ranging from -- the setback on the side at issue is the northeast corner of the lot. And there is an encroachment for 19.7 feet for that side, which is approximately 37 percent of that side solely. And it ranges from the setback in existence right now, it ranges from 3.6 feet to approximately 6.3 feet. So the variance that we would be requesting would solely be ranging from 3.9 feet at the worst to 1.2 feet at the lowest. And the remaining side fits within the county's requirements. It ranges from seven and a half foot setback to I believe an 18.1 foot setback, well within the county's requirements. In going through and looking at the property, you can see it's an odd pie-shaped property. It's a small lot. It's only .13 acres. We believe that the configuration of the lot had probably contributed to the previous owner building it in the fashion that it was built. As I said, it's -- it is a preexisting condition that existed prior to the applicant purchasing the property in 2005. Weare asking solely for the minimum variance required. If the variance isn't granted, it would have a detrimental effect on our client because the improvement that's existed since 1994 would then have to be significantly moved back, ranging from 3.9 feet to 1.2 feet for the portion of the side that is encroaching.Ñ Page 28 December 20, 2007 Going through the other factors under the Land Development Code, by definition a variance does grant a special benefit on the party that is getting the variance. However, our client is not seeking anything in addition or any other additional benefits other than what we're asking for here today. It's not -- it doesn't injure the safety, welfare of the public, there is accessibility, as you can see from the photographs that were within your packet. It also doesn't preclude light and air, as you can see from those photos. This has been a preexisting condition that has existed since at least 1994. We did send out the proper notices to the landowners within 150 feet of the property. We did not receive any opposition. We actually did receive a letter from an adjacent lot owner that's affected from it, giving us his unequivocal approval that he has no objection to the variance application. The only other thing I would like to point out is from the pictures you can see that there is a lot of vegetation also that's in between the affected house and the property at issue, which does stand in the way and obviously, you know, shield the improvement that was at issue. At this time I would just like to open the floor for questions, as I feel that Mr. Moss's report pretty much summarized everything else. CHAIRMAN STRAIN: Thank you. Are there any questions? Mr. Kolflat. COMMISSIONER KOLFLA T: Yes. This installation has been existing since 1994; was that correct? MR. TRAFICANTE: From what the county has discovered, yes. There was a permit issued in 1994 for an enclosure, from what I believe. And I would defer to Mr. Moss to clarify that more. However, there was no C.O. ever issued, but it was concluded that it existed since 1994. COMMISSIONER KOLFLAT: But it has existed for 13 years? Page 29 December 20, 2007 MR. TRAFICANTE: Yes. COMMISSIONER KOLFLA T: Well, what triggers the complaint now, or what is the reason for wanting a variance at this point in time, since apparently there was no objection to it up till now? MR. TRAFICANTE: Our client purchased the property in 2005, and this has been hanging over the property's head I guess since then. We went through the procedure of -- our client on his own went through the procedure of attempting to get a variance at the beginning, but there was issues as to what the applicable setback was, whether it was five feet, whether it was seven and a half feet. So that dragged on for a little. And then we became involved and have taken over the variance application in regards to that. COMMISSIONER KOLFLA T: But he didn't need to get a variance; there was no demand that he get a variance. Code enforcement hadn't come to play in there, had it? MR. TRAFICANTE: No, not that I'm aware of, sir. COMMISSIONER KOLFLAT: Okay, thank you. CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: Thank you, sir. MR. TRAFICANTE: Thank you. CHAIRMAN STRAIN: Staff presentation? MR. MOSS: Good morning, Commissioners. John-David Moss, Department of Zoning and Land Development Review. I really have nothing further to add to Mr. Traficante's presentation, but would be glad to answer any questions you may have. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: At the pre-application meeting, I notice you had a representative from the fire department. Was there any concerns whatsoever about access? MR. MOSS: No. Page 30 December 20, 2007 COMMISSIONER SCHIFFER: Nothing whatsoever. Is the construction of that part of the building wood or aluminum? MR. MOSS: It's wood and masonry. COMMISSIONER SCHIFFER: So it's combustible material. MR. MOSS: I think it's predominantly masonry. But there is a wood trellis that separates the two properties. COMMISSIONER SCHIFFER: But the overhang of the roof goes past this dimension, correct? MR. MOSS: No, I don't think the -- does the overhang of the roof -- you might want to ask the owner of the property. He's here. Or it may be obvious from the pictures. But when I went to the site, I don't recall -- COMMISSIONER SCHIFFER: Look on page -- MR. MOSS: -- whether or not it did overhang. COMMISSIONER SCHIFFER: -- 5 of 8. MR. MOSS: Okay, clearly it's there, sure. COMMISSIONER SCHIFFER: And is that aluminum or is that a combustible material? MR. MOSS: I want to say it's aluminum, but that might be a better question for the owner, who's here. COMMISSIONER SCHIFFER: I want you to say it's aluminum too. MR. MOSS: I believe that it is. COMMISSIONER SCHIFFER: So in other words, what are we going to do about catching up with the building code -- you know, the building code requirements on this building? CHAIRMAN STRAIN: Well, this is a planning issue, so I'm not sure we -- I mean, I'm not familiar with the building codes for this building, are you, John-David? MR. MOSS: No, I'm not. CHAIRMAN STRAIN: So I think that's a building department Page 3 1 December 20, 2007 issue to be taken up by them, not by the planning commission. MR. SCHMITT: It's a single-family home, it's an existing home. The only way it would even require them to come up to code, and I'm sure you know this, Brad, is if they come in and attempt to do some remodeling. Even so, even with the fire, fire normally is not involved in a review of a single-family home. COMMISSIONER SCHIFFER: But we're not here because we have a building that was built according to permit, because we wouldn't be here. I mean, obviously with a variance there's something done without the required permits. CHAIRMAN STRAIN: But if we grant the variance, it's up to the county building department to determine if it's been built to building codes. It certainly isn't part of our knowledge or preview, other than you. And I'm certainly not -- if we're going to get into building codes, I need to -- we need to continue this and let me read the entire building code and go from there, and I don't see that as a necessity for this board. COMMISSIONER SCHIFFER: That's not my question. It's not up to us to do the code. And I don't think it's funny, because I think that, you know, we have state statutes on building, and I think that, you know, when we trigger these variances and we say it's okay, it was built without a permit, so it didn't have the proper inspection. But the question really was that somebody was -- from fire was at the meeting, and at the meeting did you guys discuss access for the fire and combustibility of the building? MR. MOSS: We didn't discuss that in particular, but Ken Abler from the fire department was there and he did sign off it on it saying he had no objections. COMMISSIONER SCHIFFER: Okay. I'll go on that. Thank you. CHAIRMAN STRAIN: Any other questions of staff? COMMISSIONER MURRAY: Ijust-- CHAIRMAN STRAIN: Mr. Kolflat? Page 32 December 20, 2007 COMMISSIONER KOLFLAT: Yes. John, Nancy mentioned earlier this morning that it's not a requirement to have a neighborhood information meeting on the variance request. But this petitioner went ahead and scheduled a neighborhood information meeting; is that correct? MR. MOSS: Not that I know of. I don't believe they scheduled a neighborhood information meeting. I think they just sent out the required letters to the affected property owners. And as Mr. Traficante said, they got a letter of support from the only truly affected property owner, who lives to the east. COMMISSIONER KOLFLA T: Does the staff ever initiate anything like that checking with the neighbors to see what their reaction is to a variance? MR. MOSS: I can't say that it's never been done, but no, it's not normal protocol. I didn't verify it. COMMISSIONER KOLFLA T: I think that's a good idea. Have you ever talked about maybe making that part of the review process, in case of a variance, to ensure that no one in the neighborhood has a serious objection to it for a valid reason. MR. MOSS: Well, I guess that's the idea behind sending the letter out to the adjacent property owners is in case there is anyone who objects to it, they have the opportunity to contact staff. CHAIRMAN STRAIN: Mr. Schmitt, did you want to respond to that as well? MR. SCHMITT: Just to add, a neighborhood information meeting is normally triggered by a certain size variance or other type of activity that triggers the neighborhood information meeting. This is a variance for a single-family home. The requirement is for the applicant to notify the residents within a certain number of feet. 300 feet, I believe, John-David? MR. MOSS: Um-hum, something -- MR. SCHMITT: Three hundred feet, if I recall. Page 33 December 20, 2007 That is the notification. We verify that they send those letters out, but we don't follow up and go and canvass those residents. They're officially notified of the petitioner's request and they are then informed or instructed to advise the county if they have any concerns. COMMISSIONER KOLFLAT: But you do verify that they make the request. MR. SCHMITT: Yeah, the letters are sent out, yes. COMMISSIONER KOLFLA T: Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Mine was only a comment relative to Page 5 where that picture shows what appears to be a turkey fryer. I think enough said. CHAIRMAN STRAIN: Are there any other questions or comments from the planning commission for staff or the applicant? (No response.) CHAIRMAN STRAIN: Okay, is there any public speakers, Kay? MS. DESELEM: No, sir. CHAIRMAN STRAIN: With that, we'll close the public hearing and entertain a motion. Mr. Midney? COMMISSIONER MIDNEY: I'd like to move that we forward Petition V A-2007-AR-12232 to the Board -- the BCC with a recommendation of approval. CHAIRMAN STRAIN: Is there a second to the motion? COMMISSIONER MURRAY: I'll second it. CHAIRMAN STRAIN: Mr. Murry seconded the motion. Discussion? All in favor, signify -- Mr. Murray? COMMISSIONER MURRAY: I was just going to say, I think it's in the code, but just verify that if the property is 51 percent or destroyed, the site has to be relocated. MR. MOSS: That's true. That is LDC language. MR. SCHMITT: It's already in the code. Page 34 December 20, 2007 COMMISSIONER MURRAY: That's my only comment. All right, thank you. CHAIRMAN STRAIN: Okay, we'll call for the question. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries, 7-0. Thank you all and Merry Christmas to you. COMMISSIONER SCHIFFER: Mark, could I discuss one little thing about variances? CHAIRMAN STRAIN: Sure. COMMISSIONER SCHIFFER: And it's to Joe. Joe, if a variance, an after - the- fact variance is approved -- and I'm not so worried about this, but Mr. Murray did point out something. If that is a combustible roof with a turkey fryer underneath it, yikes. But anyway, the -- after we approve it here, is building department notified? I don't want to big deal, I don't want everybody to go crazy, but shouldn't somebody look at it? And my main concern is one time we had a restaurant that had a zero setback and we -- you know, it should have been 15 feet and we approved it. But nobody went back and looked at that for being built at zero. And the design of it, the parapet condition of it was not acceptable for a zero setback. So is there any notification after it leaves us? MR. SCHMITT: Well, once they have the variance, they have to come back in. Page 35 December 20, 2007 And they have the building permit for this? Is that what they -- they're going to have to permit it, go through the permitting process. And if they're going to permit it properly, go through the permitting process. They'll have to permit by affidavit, which would then trigger some kind of a building inspection of some sort. COMMISSIONER SCHIFFER: Okay, so that's the best answer. If the thing was done without a permit, which most likely it would be or the zoning would have probably caught it, then they would have to go through that process and it's reviewed at that time. MR. SCHMITT: Yes. COMMISSIONER SCHIFFER: That's perfect, thank you. CHAIRMAN STRAIN: Okay, thank you all. Item #8E RURAL FRINGE MIXED-USE DISTRICT The next item on today's agenda is the rural fringe mixed-use district, request that the Collier County Planning Commission, through formal direction of the Board of County Commissioners, evaluate and consider the feasibility of policy option three as it relates to potential inclusion of determined illegal rural fringe mixed-use district sending lands' properties into the TDR program. All those wishing to testify on behalf of this action, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Are there any disclosure? (No response.) CHAIRMAN STRAIN: Okay. Sir, go right ahead. MR. THOMPSON: Hi, Joe Thompson, for the record, Comprehensive Planning. Just you have the staff report before you. Really gives you a Page 36 December 20, 2007 detailed chronology as to how this issue has gotten here. Initially it started in March of 2005, just to kind of briefly go through a few things. We had a private property owner who submitted three severance applications to our department. Of the three actual properties that were within -- actually, I believe there was more than three. Of the three applications, one of the properties was denied because of the deemed to be an illegal lot, which is a lot that was created after the agricultural zoning centers were already in place, meaning there's no density associated with the property, so we denied the property severance. The issue actually came to the board I believe back in September through public petition from that particular property owner. Ultimately petitioned the board to allow his illegal lot eligibility for severance. Through a couple meetings subsequent to that, we ultimately made some recommendations to the board which could potentially have some options that would include these illegal lots in the TDR program at their request. The staff recommendation remain the same throughout, which is the continual prohibition on illegal lots with respect to severance. However, the board ultimately directed this issue to come to the planning commission with respect to one option in particular, which was option three, which would essentially allow illegal lots, TDR participation on a proportional basis. Also, it would be those illegal lots that are developable, but from a property size and lot configuration perspective, not a zoning perspective, obviously, because that's already off the table because they're illegal lots. So that's really where we're at. And with that I'd be more than happy to answer any questions you have or issues you'd like to discuss. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: Yeah, there were a lot of good statistics in the report that we got, but the one question that I really Page 37 December 20, 2007 have is how many developable illegal lots did you find? MR. THOMPSON: We have not evaluated the illegal lots for whether or not they're developable. We initially did an analysis of whether or not they were illegal lots or legal nonconforming lots. COMMISSIONER MIDNEY: Because the reason I ask is that option three proposes allowing developable lots to have TDR severance capability. And it would be good to know, you know, how many are there. MR. THOMPSON: Sure. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: I mean, I'm assuming anybody that has one of these lots does not own contiguous property; is that correct? MR. THOMPSON: I mean, that's a blanket assumption. It could be true. I don't know for sure without evaluating more of these. You mean with respect to ownership patterns, if they have more property? COMMISSIONER SCHIFFER: In other words, if they have a sliver lot, your 10- foot lot you define in the report. But if that's alongside, you know, another lot, that would be an obvious solution. MR. THOMPSON: Correct. COMMISSIONER SCHIFFER: Go ahead. Joe had his hand up about that. MR. SCHMITT: Yeah, I need to go back to Mr. Midney's question on developable lots. When the law was passed, when the rural fringe mixed use amendments were passed, it was -- a developable lot in the sending area was one unit per 40 acres or a lot of record. These are lots that were not a lot of record, so legally you could say they were not developable. When Joe refers to them as being developable, would it be a lot of record or a lot of sufficient size to meet all the setbacks for, quote, a building to be placed on it. Page 38 December 20, 2007 So there is a legal issue of whether any lot would have been developable. And so there's a twist of words there. And I hope I didn't confuse you, but that's the whole issue here, they were illegal lots, meaning they were severed prior to the date that established a legally nonconforming lot. COMMISSIONER MIDNEY: It is confusing. MR. SCHMITT: Yes. I know I just threw a lot of things at you and it's -- it's clear in my mind, I just want to make sure you're clear, or Joe will clear it up. MR. THOMPSON: Yeah, just to add one point. The illegal lot, the simplest way to put it, at least with looking back through the staff reports in the executive summary, is a lot that was created after the agricultural zoning standards were in place. So if you have zoning standards of one dwelling unit per five acres that happens point A, and then point B you come and split a property after that's already happened, you have an illegal lot. It's not developable per zoning. And that's where we're at. CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Midney. COMMISSIONER SCHIFFER: But essentially the legal nonconforming lot is a developable lot. MR. SCHMITT: That's correct. MR. THOMPSON: Exactly. COMMISSIONER SCHIFFER: Right. And that would obviously have to have been created prior. MR. THOMPSON: Exactly. COMMISSIONER SCHIFFER: And anything after that would be the illegal lots. MR. THOMPSON: Correct, yes. COMMISSIONER SCHIFFER: Mark, I have -- I mean, I've gone through the different options, and do you want to start discussing them now or do you want them page-by-page like you normally do? CHAIRMAN STRAIN: Let's see what Mr. Midney's got to say Page 39 December 20, 2007 first. Then we'll -- on a general issue. Mr. Midney? COMMISSIONER MIDNEY: Okay, yeah, my main concern is that we don't have a lot of these, you know, maybe 2.5-acre lots that are in sending lands which should be preserved that people are -- well, if I can't sell them for TDR, I'm going to put a residence there. But yet the illegal and the legal, would they have a right to put a residence there? Or if they are illegal, would they not have a right to put a residence there? MR. THOMPSON: Per the zoning standards, there's no density associated with the property, so you could feasibly conclude that no, there wouldn't be eligibility to build anything on the property. COMMISSIONER MIDNEY: Are you sure of that? MR. THOMPSON: I would defer to Jeff for assurance on that question. MR. SCHMITT: It gets into the whole argument of when the lot was actually divided, whether it was prior to the -- MR. KLATZKOW: If it's legal nonconforming, you can put a house on it, provided you can meet setbacks and everything else. If the lot was severed after that magic date, then it's an illegal lot and you cannot build on it, irrespective of the size. COMMISSIONER MIDNEY: My final question. CHAIRMAN STRAIN: Go ahead, Mr. Murray, then Mr. Schiffer. COMMISSIONER MIDNEY: Midney. CHAIRMAN STRAIN: No, I mean after you is Mr. Murray. COMMISSIONER MIDNEY: Oh, I'm sorry. CHAIRMAN STRAIN: You started, so-- COMMISSIONER MIDNEY: Has some measure been taken so that no more illegal lots will be created? I don't exactly understand how they were created illegally in the first place, but are we going to prevent that in the future? MR. KLATZKOW: I think-- Page 40 December 20, 2007 MR. THOMPSON: You ask a good question. I'm sorry, go ahead, Jeff. MR. KLATZKOW: The issue here is that you can go to the property appraiser and split your lots, and the property appraiser doesn't come to us and ask us for permission. And so that's how you get the creation of these illegal lots. It's outside of our control, quite frankly. MR. SCHMITT: We've asked the property appraiser to notify anyone that if they're going to split a lot to come to the zoning department to ensure that what they create would be legally conforming. That doesn't happen. And -- COMMISSIONER SCHIFFER: It doesn't happen. MR. SCHMITT: Separation of government. And unfortunately, as Jeff said, you can own five acres out there and create -- and split it five times and in an attempt to sell it. And somebody buys an acre and learns that they bought something illegal. I know the frustration there, but frankly it's the due diligence in coming into the zoning department and finding out it's what they bought. COMMISSIONER MIDNEY: Could the BCC do something so that this wouldn't happen in the future? MR. SCHMITT: It's really got to be a cooperation between the property appraiser and the Board of County Commissioners. We've explored this. I believe their concern is they're assuming risk if they advise someone of the legal pitfalls. I don't have an answer for you. We've attempted to do this. We've attempted for over two years to create some kind of a -- if nothing more than to hand out a piece of paper saying please call someone at the zoning department. CHAIRMAN STRAIN: Mr. Murray, then Mr. Schiffer. COMMISSIONER MURRAY: The year is 2050. All the properties around are built up, or some of them are in conservation, Page 41 December 20, 2007 which is the intent. That's the intent of all of this is to try and create opportunities for storage of water or et cetera. I'm concerned with what we're really -- the real crux of the problem. And my understanding of it, anyway, is that if we don't do anything with the lots, that lot could be clear-cut, right? The person who owns it could come in, take all the lumber out of it and what have you, then you have these ragged things. CHAIRMAN STRAIN: Wait a minute. Before you step into the next part of your question, let's answer that one. How can they clear-- how can an estates or a lot -- would they be able to clear-cut 100 percent clear lot under the Right to Farm Act or something like that for a fraction of a lot that certainly -- MR. KLATZKOW: I think they could-- MR. SCHMITT: I look to the county attorney, because it -- the Right to Farm agriculture, it's a lot. They could claim some ago exemption. But it's still sending lands. They would have to come in for vegetation removal permit of some sort. Go ahead, Jeff. MR. KLATZKOW: You've got to do something with the land. It's zoned -- it is zoned agricultural. But I think you could clear-cut it with the thought of doing row crops or something. CHAIRMAN STRAIN: Thank you. Okay, sorry, Mr. Murray. COMMISSIONER MURRAY: That's all right. No, I think it's good that we're talking this point, because I recognize that we could take a hard and fast look and say no, can't do it. But that doesn't solve a problem that we're going to have with water, it doesn't solve a problem with what the look of it will be and so forth. And I just wonder, with the types of credits that are available, whether a fractional might have some sense. Now, I've read the arguments and I see that, I understand that, inflated and deflated values and so forth. But I just wonder, we're not -- unless this group here, this board Page 42 December 20, 2007 decides to offer something else, we're not given much of an opportunity to expand what another possibility can be. I recognize you carry the staffs view, and that's fine. But I looked at this and I said gee, okay, but then we still have a problem forever. And so it doesn't seem to solve it. Now, that's my comment. I don't really have a valid question. I've tried to read this and understand it. I'd like to think that we could have a discussion that would be better with people more informed than 1. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, it's been answered, thanks, Mark. CHAIRMAN STRAIN: Okay. Any other questions? (No response.) CHAIRMAN STRAIN: Would you mind putting up -- this all started over a lot in question. Would you mind showing the area -- putting that on the screen for us. MR. THOMPSON: The lot in question? CHAIRMAN STRAIN: Yeah, the one that generated the interest here. MR. THOMPSON: I don't have that today. I didn't bring that with me today. I apologize for that. CHAIRMAN STRAIN: Well, it's a 10- foot wide, I believe, strip ofland that runs between two legal lots. That obviously a 10-foot wide strip of land is not one that would qualify under Option 3 as even an illegal developable piece of land. MR. THOMPSON: Correct. CHAIRMAN STRAIN: But I'm understanding that someone came in and wanted TDR severance credits for that 10-foot wide strip. Do you know the purpose of the creation of the 10-foot wide strip to begin with? MR. THOMPSON: I do not know how it was created initially. MR. KLATZKOW: It was a right-of-way easement. Page 43 December 20, 2007 CHAIRMAN STRAIN: That's what I thought. It was 660 foot, or approximately full depth of a lot long, typical Estates lot like? MR. THOMPSON: Yeah, it was the exact same length as the lots contiguous to it. CHAIRMAN STRAIN: Just a long, 10-foot, skinny piece of property. You could get access to the property possibly to the north. MR. THOMPSON: Right. CHAIRMAN STRAIN: Okay. Property apparently to the north isn't needing it. Or for some reason this 10-foot strip is now being offered as a -- being requested to have TDR credits applied to it. MR. THOMPSON: Right, TDR severance for base and early entry. CHAIRMAN STRAIN: And that's what generated this issue? MR. THOMPSON: Right. That was back in March of ' 05. CHAIRMAN STRAIN: Have you had anybody else come in to try to generate any issues similar to this? Any other examples? MR. THOMPSON: No other illegal lots. CHAIRMAN STRAIN: Okay. Have you had legal lots come in? MR. THOMPSON: Legal nonconforming lots, yes. CHAIRMAN STRAIN: And what was your department's reaction to those? MR. THOMPSON: We processed those for TDR severance, because they're legal nonconforming lots that were -- the ones created previous to the magic date of October 14, 1974. And that's pursuant to the Growth Management Plan. CHAIRMAN STRAIN: So since this program was in place, in which I sat on this board when it was put in place, we've only had one issue rise to the level that we have here today, and it was for a 10-foot wide strip, approximately, or possibly 600 feet long, that was really created as an access easement to some other property. And that's it. And now we're looking at reinventing the wheel because of this one 10- foot wide strip that goes to this access property to the north. Page 44 December 20, 2007 Okay, that makes -- I'm sure glad that we're spending all this time on this. Thank you. Are there any other questions of county staff? Mr. Adelstein? COMMISSIONER ADELSTEIN: This idea of being called illegal, doesn't that have enough to do with it? I mean, it is illegal, and we're now fighting it and we're still saying but it's illegal. I would think that would kind of indwell if we said we don't want anything that could do business with illegal. Or we shouldn't have have (sic) to do it. CHAIRMAN STRAIN: That's kind of what we're here to -- I agree. Mr. Schmitt? MR. SCHMITT: There's no prohibition that these lands cannot be donated to Conservation Collier or some other entity to put them in preservation. If -- you've got the map that shows a fairly small amount, and -- CHAIRMAN STRAIN: I did look it up on the map. It's -- yeah. MR. SCHMITT: We can attempt to pull it up on the property appraiser's website, if you want to see the lot. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Mr. Chairman, I really do respect your statement. And maybe it is premature. However, they directed for us to look at it so I've tried to look at it. But I do wonder how many other quote, unquote, illegal lots of any size are out there. If they were all 10- foot strips, perhaps that would be meaningless. But if there are some others that are meaningful. In any event, my thought was we're trying to move these things into conservation. If there's any way to do it, I thought that might be useful. CHAIRMAN STRAIN: Okay, are there any questions of staff? Page 45 December 20, 2007 COMMISSIONER SCHIFFER: Just one. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: What's the early bonus date? When does that drop? MR. THOMPSON: September 27th, 2008 is the expiration of the early entry credit. COMMISSIONER SCHIFFER: So we're coming up on that. MR. THOMPSON: Yes. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions? Mr. Midney? COMMISSIONER MIDNEY: I just wanted to know how many TDRs have been severed in this area. MR. THOMPSON: Within the rural fringe general, in the sending area? COMMISSIONER MIDNEY: Yes. MR. THOMPSON: Including base and early entry, I believe well over 1,000, approximately 1,500 credits. COMMISSIONER MIDNEY: Could you give like a percentage of how much of the land has been severed that's in the sending area? 1,000 lots, is that a lot or is that a little? MR. THOMPSON: I would say less than 25 percent, less than 20 percent. But, I mean, each property you get incentives, so there's extra credits there that maybe kind of inflates the number a little bit with respect to land when you correlate that. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: This may not be related, but do you know how many were sold, TDR credits were sold so far? MR. THOMPSON: About a year ago -- the program's developed a little bit differently. We have -- the majority of participation you have developers or corporations that go out and buy their property and sever the credits to themselves. So there's actually no sale there, it's Page 46 December 20, 2007 just a transfer of credit to the development corporation or a subsidiary. But the actually sale from a private property owner to a developer, there's probably been about seven or eight, approximately. I'd have to look back to exactly the records. And the last sale was about a year and a half ago. COMMISSIONER VIGLIOTTI: And do you know approximately what price? MR. THOMPSON: 30,000. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Mr. Vigliotti, I have the aerial of that on my screen, if you want to look at it. You can't look at it on yours, it's only on mine. With that, are there any other questions of staff? (No response.) CHAIRMAN STRAIN: The one in the center. Thank you, are there any public speakers, Mr. -- whoever is in charge of public speakers. MR. SCHMITT: Yes, Commissioner. Jim Schultz. He's the only registered speaker. Mr. Schultz? CHAIRMAN STRAIN: Thank you. MR. SCHULTZ: Jim Schultz for the record. First of all, I'd like to say that my opinion is that these are legal lots. They're not illegal nonconforming lots. And by the lot of record that the county's using to describe these as illegal lots, it also says a lot which is part of a subdivision recorded in the public records of Collier County. Which we've already addressed this in one of the BCC meetings, that these lots are part of a subdivision, and they are recorded in the public records. Also, the definition goes, part of a subdivision or a lot parcel or least fractional unit of land or water under common ownership which has fixed -- limited fixed boundaries described by metes or bounds or other specific legal description, the description of which has been so Page 47 December 20, 2007 recorded in the public records of Collier County, Florida, on or before the effective date of this LDC. Doesn't say anything about 1974, it says the LDC. The LDC was adopted in 1999. All right? These lots are legal nonconforming lots. Now, the third definition is the 1974 date, which the county has been using for these, and here is the description, if you guys would like to see it. This is the exact definition that was e-mailed to me for the reason why my lot was not qualified. As far as the lots not being physically buildable, the county has severed TDR's from lots that were created prior to the 1974 date that you could not build a building on, a house or anything. They're not wide enough, they have roads going through them. So yeah, I know, my lot is only 10-foot wide, but there are other lots that have had TDR's severed, but they were severed because they were built prior to 1974. Physically being able to build a lot -- or a house on these lots is not a requirement in the compo plan. You can read the compo plan. There's no word -- any words to be found. As far as our rights to build on these two-and-a-half acre lots or whatever, as long as they meet the requirements, it's in the LDC, permitted uses. A, agricultural uses. B, detached single-family dwelling units, including mobile homes where the mobile home overlay exists at a maximum density of one dwelling unit per 40 acres. The 40-acre lots are now the conforming lots in the sending area. Or one dwelling unit per lot or parcel of less than 40 acres. Doesn't say how much less, it just says less of 40 acres, which two and a half acres certainly qualifies for less than 40 acres. Which existed on or before June 22nd, 1999. For the purpose of this provision, a lot or parcel which is deemed to have been in existence on or before June 22nd, 1999 is a lot or parcel which is part of a subdivision -- which we've already determined that these lots are Page 48 December 20, 2007 part of a subdivision -- a lot or parcel which has limited fixed boundaries described by metes or bounds or other specific legal description, the description of which has been recorded in the public records of Collier County on or before June 22nd, 1999. Or a lot or parcel which has fixed limited boundaries for which an agreement for deed was executed prior to June 22nd, 1999. Nowhere in there is 1974. These lots are legal nonconforming lots. This program was developed for conservation. We need to get these lots in the conservation program so we can do the controlled burns in the flowways. I've spoken to several people who authored this program, Nancy Payton and others, who never intended for these lots not to be included in the program. They said so at the BCC meeting. And I don't understand what this is all -- I don't understand why we've had to take this so far when it's right here in the compo plan. COMMISSIONER SCHIFFER: I have a -- CHAIRMAN STRAIN: Okay, Mr. Schiffer? COMMISSIONER SCHIFFER: You know, let's discuss this part of the subdivision. I would interpret that to mean that when the subdivision was recorded, this was a lot that was noted in that subdivision. Is that the case what you're talking about? MR. SCHULTZ: I'm just going by a prior BCC meeting. Commissioner Henning asked one of the staff members if this was considered a subdivision, and the staff member agreed that yes, it was considered a subdivision. COMMISSIONER SCHIFFER: Okay. So when they made the -- when the presented the subdivision, when they recorded it, this was a lot noted in that subdivision? Or are you interpreting if I have a lot within a subdivision and I buy metes and bounds, chop off 10 feet of it the fact that it's located within a subdivision means that it's in a subdivision? MR. SCHULTZ: I understand what you're getting at. And, you Page 49 December 20, 2007 know, I don't -- I didn't even know that this was considered a subdivision. My biggest defense is the fact that my lot was created prior to the LDC. COMMISSIONER SCHIFFER: How did you come to own this lot? MR. SCHULTZ: I bought it in 2005. You know, I've not said this in public before, but I did talk to a staff member back in '05, prior to buying this lot, and I was verbally told yes, you can get TDR's for this lot, you're going to make lots of money, buy it. But unfortunately I didn't get that in writing. So really, it doesn't really make a big difference. But, you know, I didn't just go out and buy and say oh, yeah, I can get TDR's, I was told I could get TDR's for this lot. COMMISSIONER SCHIFFER: All right, thank you, Mark. MR. SCHULTZ: I just can't prove that. And the person that told me that obviously isn't backing me up anymore. CHAIRMAN STRAIN: Did you do any due diligence on your own, sir, just out of curiosity? MR. SCHULTZ: Yeah, I read the LDC. And, I mean, if you read the LDC or the compo plan, I mean, there's nothing in there that prohibits me from getting TDR's. CHAIRMAN STRAIN: Due diligence by an experienced buyer may have revealed more to you than this. Have you done much purchasing of real estate in Collier County? MR. SCHULTZ: I've -- I'm actually a realtor. I've probably sold and bought more TDR land than anybody else in Collier County. I assisted Bonita Bay in their TDR program. I've assisted Lanar. Was instrumental in Lanar purchasing the Belle Meade property. CHAIRMAN STRAIN: You're a broker with Downing and Fry, aren't you? MR. SCHULTZ: Yes, I am. CHAIRMAN STRAIN: James Schultz, PA. Page 50 December 20, 2007 MR. SCHULTZ: You got it. CHAIRMAN STRAIN: Okay, thank you. Any other questions? (No response.) CHAIRMAN STRAIN: Thank you, sir. Okay, with that, no other questions. Is there any motion from the panel? COMMISSIONER SCHIFFER: Well, Mark, I mean, can we discuss the different -- they came up with different options. Should we discuss it or just discuss -- CHAIRMAN STRAIN: I have no -- I mean, I don't have any discussion. If you have a discussion, that's what you -- I just asked everybody if they had any comments, please -- COMMISSIONER SCHIFFER: In my review of the options, Option 3 looks somewhat curious. And I'm taking the intent that it's good to get this land in the program. What I think, though, should happen is that because there's four different steps in the program -- and staff can tell me if I'm wrong -- the first step is that you remove the ability to develop on the land. Second step, if you do it before the deadline you get the bonus. Third step is that you clear the land of any exotics or essentially bring it into a preserved state. And the fourth is that you donate it to somebody that __ you know, The Conservancy or something to take care of the property. Essentially you get rid of the ownership of it. So to me, I think that what I think option five should be is to allow -- obviously a developable lot isn't even in question. If it was developable, then they could -- they get the TDR anyway. And that's kind of the impression I had when it came before us. But if a lot isn't developable, I would propose that we make them go the full four steps, and obviously if they do it late, three steps, and bring the thing totally to dedication to -- and what is the proper term for that? Who takes care of it? Page 51 December 20, 2007 CHAIRMAN STRAIN: Brad, I've got to ask you a question. Because -- and maybe it's more to the county attorney. Let me read the agenda item. Rural fringe mixed-use district, request that the Collier County Planning Commission through formal direction from the Board of County Commissioners evaluate and consider the feasibility of policy option three as it relates to potential inclusion of determined illegal fringe mixed-use district sending lands. Now, are we limited then to review what they're asking us to review, or are we expected to produce alternatives more than what they asked for? MR. KLATZKOW: I think a fair thing to say is that you're free to look at the other alternatives. Because obviously if you didn't like Option 3, I think the board would be interested to know whether you had any other thoughts on any of the other options. CHAIRMAN STRAIN: Okay. So be it. Thank you. Sorry, Brad. COMMISSIONER SCHIFFER: So essentially Option 3 is modified. Could staff come -- I'm sorry, describe that fourth thing again so I use a term -- MR. THOMPSON: The conveyance bonus? COMMISSIONER SCHIFFER: Right. MR. THOMPSON: Yeah, that would be going to a governmental agency, whether it's local, state or federal. COMMISSIONER SCHIFFER: Okay. MR. THOMPSON: That would be the fourth credit. COMMISSIONER SCHIFFER: So my point is that I think if you don't have a developable lot, then you should immediately go all four steps into conveyance. Obviously it wouldn't make any sense to own a nonconforming lot. And I think another criteria would be that it's not contiguous to your property. That's just my thought. On reading the four options, Page 52 December 20, 2007 that's the only one that I liked, as modified. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Let's just consider. If this property were abandoned and then subject to a tax sale, would the county, should the county -- I think should maybe is right. But would the county seek to acquire it at a tax sale? Is that something the county typically would do? MR. KLATZKOW: Well, I handle tax sales for the county. And you get to a point in the tax sale where the value of the property is so low and the taxes generate so minimal that it's not worth the paperwork to actually go after it. So that most of this property, as we do proceed and we do go through tax sale on, a 10-foot right-of-way strip, I'm not entirely sure whether that would fall under that. That value is going to be very nominal. COMMISSIONER MURRAY: I would appreciate that, it would be nominal in an ordinary sense. But inasmuch as this is sending land and because of sensitivity and because of water issues and all the rest of it, wouldn't that be something that would be a little second thought on the matter? MR. KLATZKOW: Yes. But I found that actually the State of Florida has been very active on the tax sale issues. And a lot of the land in these environmentally sensitive areas, they're grabbing up for the tax deals. COMMISSIONER MURRAY: That's interesting. I didn't know that. MR. KLATZKOW: We don't actually get it until well into the process, where if nobody actually bid on it. COMMISSIONER MURRAY: Would Conservation Collier, which is of course an entity of the county, would the Conservation Collier be in a position to be involved in such a sale? MR. KLATZKOW: I've not known them to be. Page 53 December 20, 2007 COMMISSIONER MURRAY: No, of course. This is the first time happening. MR. SCHMITT: I believe -- if I could -- I'll answer that. Alex is not here, but I believe they would, only if they were attempting to acqmre -- COMMISSIONER MURRAY: In that area. MR. SCHMITT: -- plots of land. But being that this is already sending land, already under some sort of potential preservation, I would doubt they would target their monies in this area. Because it's already protected. They would be seeking areas that are unprotected where they're trying to preserve Winchester head, some other issues where there's land that is deemed environmentally sensitive and not under some sort of state or local protection program. COMMISSIONER MURRAY: Makes sense what you said. CHAIRMAN STRAIN: Is that it, Mr. Murray? COMMISSIONER MURRAY: Yeah, I'm going around and round. CHAIRMAN STRAIN: Okay, are there any other questions? Anybody else have any comments on any of the pages that were provided to us in this package regarding this issue? (No response.) CHAIRMAN STRAIN: Okay, with that we will decide how to move forward. The county commission was asking us to evaluate the feasibility of policy Option 3. And I'm sure that option is to be evaluated in context to what is already in place. Is it better to leave what it is there, which is Option 4, or is it better to possibly change to Option 3. Is there -- someone have a motion to that? Mr. Midney? COMMISSIONER MIDNEY: I would like to move that we adopt Option 4. CHAIRMAN STRAIN: Is there a second to the motion? Page 54 December 20, 2007 (No response.) CHAIRMAN STRAIN: Hearing none, I will certainly second the motion then. Motion's been made to adopt Option 4 and seconded. Is there discussion? (No response.) CHAIRMAN STRAIN: My reasons for seconding it is simple. The system is not broken, it's not proven to be broken, and a knee jerk reaction to one absurd request for a 10- foot strip does not designate the need to go forward and change the system at this time. And if it does need to be changed, I think it should be done through the proper public process, through review, as the original TDR process was put through originally. Mr. Schmitt? MR. SCHMITT: Yes, I'd just like to put on the record, ifMr. Schultz does believe that this lot is covered under the Land Development Code, I would recommend that he go through the proper process, submit for an official interpretation, staff will review it through the legal process. He then can take that on appeal, any decision of the board, if it's not in his favor, to the Board of Zoning Appeals. He's already been through public petition, and that then was -- that's the reason why you're seeing this, it's been twice before the board. But the legal process is to go through an official interpretation CHAIRMAN STRAIN: Okay, Mr. Schmitt. MR. SCHMITT: -- and then let the BZA -- because you were here to address the policy and not actually debate his issue. So I thank you for that. CHAIRMAN STRAIN: There's a motion on the floor in response to the commission's request. It's been seconded. Any further discussion? Page 55 December 20, 2007 COMMISSIONER SCHIFFER: I'm going to be voting against it, because I think we should work to figure out how to bring those 63 parcels into control. CHAIRMAN STRAIN: Okay. Any others? Mr. Murray? COMMISSIONER MURRAY: I would support your motion, only because I agree, inasmuch as this is the first issue and it needs to be tested in the courts to determine, there are legal avenues. So I think policy-wise, I think you're right on this. CHAIRMAN STRAIN: Call for the vote. All those in favor of the motion as stated, signify by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? COMMISSIONER SCHIFFER: I am, Mark. CHAIRMAN STRAIN: Motion carries 6-1. Thank you. That ends that particular issue and it ends the regular agenda items for today. Item #9 OLD BUSINESS Any old business? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I don't know, it's not on the agenda, but I have some new business I'd like to bring up if I could have a couple minutes. CHAIRMAN STRAIN: Let's see ifthere's any old -- I don't think Page 56 December 20, 2007 there's any old business, so let's go right into new business. Go ahead, SIr. COMMISSIONER VIGLIOTTI: The after-the-fact variances, could we come up with another plan on how to do it rather than sometimes there's a lot of homeowners that get caught in the middle of buying a piece of property and they wind up have to go through the process. Is there something we can do? CHAIRMAN STRAIN: No, I think your best bet there is to suggest needs to your commissioners and ask that they initiate it from their level to the staff. Because that's going to be rather involved. And LDC already addresses the variances of most types. And staff does have certain latitudes. If the BCC wants to give them more latitude, I'm sure they -- they'd be the ones that would have to do it. Mr. Schmitt seems to have a comment. MR. SCHMITT: Yeah, one thing I do want to note: The new fee schedules that went into effect from the last board meeting changed, I'll call it what was a penalty, the four times the after-the-fact fee and two times the after-the-fact fee fee schedule changed where there is a homeowner who seeks compliance through no enforcement, but just seeks compliance, it's just a straight permitting fee, ifthere's no penalty assessed. But there are other categories now. It's not as repressive as it once was for the after-the-fact fee. Our purpose, when we're looking at building permits, and this was through the permit by affidavit as well, is to seek compliance and to ensure that there's safe housing out there. Ifthere's anything that's unpermitted -- we're not after raising revenue, we're after to ensure compliance. And so there has been a change in those after-the-fact fees. That's one piece of it. The other piece, I think what you're looking for, is something that's a little more administrative in nature in regards to dealing with some of these. And that would have to be at the direction of the board, Page 57 December 20,2007 as Mr. Strain said, to look at some options to amend the Land Development Code for more administrative processes for these what are sometimes seen to be rather minor variances. COMMISSIONER VIGLIOTTI: How about the violations from code enforcement? Sometimes the fees just keep multiplying. How do we approach them? MR. SCHMITT: That's an issue with the Code Enforcement Board. And the assessment of fines, that is a code enforcement issue. Normally if you cooperate, those fines are fairly minimal. If you just I guess not pay attention or just not -- you know, disregard any enforcement, that's basically where the fines build. But those are through the -- those are part of the public hearing process before the Code Enforcement Board, or the special master, special magistrate. CHAIRMAN STRAIN: Mr. Vigliotti, that -- COMMISSIONER VIGLIOTTI: Yeah, that answers my question. CHAIRMAN STRAIN: Anybody else. COMMISSIONER SCHIFFER: Have a Merry Christmas, Mark. CHAIRMAN STRAIN: I was going to say, new business, Merry Christmas to everybody. And we certainly want to thank all the people who have helped this year to get us through the year, Cherie', especially, and Kady across the hall, and all of you. So I wish you the best of holidays. And I'm going to say Merry Christmas for the record. So anyone want to take a shot, let them take a shot. COMMISSIONER VIGLIOTTI: Merry Christmas. COMMISSIONER MURRAY: Okay, and a happy new year. CHAIRMAN STRAIN: Is there a motion to adjourn? COMMISSIONER SCHIFFER: So moved. COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Made by Commissioner Schiffer, Page 58 December 20, 2007 seconded. We're done. Thank you all. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 9:58 a.m. COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 59