Loading...
CCPC Minutes 01/09/2008 S January 9, 2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION 2007 CYCLE 2 LAND DEVELOPMENT CODE AMENDMENTS Naples, Florida January 9, 2008 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 SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed-Caron Tor Kolflat Paul Midney (Absent) Bob Murray Brad Schiffer Robert Vigliotti ALSO PRESENT: Jeffrey Klatzkow, Chief Asst. County Attorney Susan Istenes, Planning Director Joseph Schmitt, CDES Administrator Catherine Fabacher, LDC Manager Page 1 January 9, 2008 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the -- oh, my goodness it's January what, 9th, 2008 meeting ofthe Collier County Planning Commission. This is a continuation of the LDC Cycle 2 amendments that we started last year. It hasn't taken us a year to get here, but a year has transpired. Would you all rise for the pledge of allegiance, please. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay, will the secretary please do the roll call. COMMISSIONER CARON: Mr. Kolflat? COMMISSIONER KOLFLA T: Here. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: I'm here. COMMISSIONER CARON: Mr. Midney is not here. Ms. Caron is here. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Mr. Murray? COMMISSIONER MURRAY: Here. COMMISSIONER CARON: And Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. Did you forget my name? COMMISSIONER CARON: Just briefly. How could we forget you, Bob? COMMISSIONER VIGLIOTTI: Thank you. COMMISSIONER ADELSTEIN: Easy. CHAIRMAN STRAIN: Okay. Let me start by saying that the book we have in front of us today is a synopsis of only those issues that were left from the last meeting we had in December. And Catherine, I want to thank you for putting the book together Page 2 January 9, 2008 in such an orderly fashion. It makes it a lot easier to follow what's boiled down and remaining, rather than getting all the paperwork and having to sort through it again. MS. F ABACHER: Thank you. CHAIRMAN STRAIN: So with that, I know we have members of the public here today. We'll start with the issues that they're here for first. I think the first one will be the sign issue for the real estate -- MS. F ABACHER: Open house? CHAIRMAN STRAIN: -- part of it. MS. F ABACHER: All right. CHAIRMAN STRAIN: I'd like to go to the issue that Cormac is involved with next. MS. FABACHER: Okay. CHAIRMAN STRAIN: And I think that takes care of it. Is anybody here -- Cormac's issue is the affordable rental issue. And Mr. Poteet's issue is the real estate location of real estate signs. I notice two staff members are here. What items are you guys here for? I'm trying to get you out of here and back to your jobs as quickly as possible, because I read in the paper today we're so shorthanded that you can't attend meetings anymore. So -- MS. BURGESON: Listed species. CHAIRMAN STRAIN: Listed species? Okay. Well, then we'll do the listed species item third and we'll move forward with that. Catherine, did you -- were you managed to be -- able to follow all that I just said? MS. F ABACHER: Yes, sir, I did. Do you want to go with the open house signs? CHAIRMAN STRAIN: Right. MS. F ABACHER: That is going to be on page -- COMMISSIONER MURRAY: 47. MS. FABACHER: Okay, 47. D on your summary sheet. And I think -- well, we do have one public speaker. Is that how you wanted Page 3 January 9, 2008 to proceed on that first with him, or -- CHAIRMAN STRAIN: Well, I'd like to get through like we always have, the commission's comments on the changes first, and then we'll hear the public speakers and then we'll figure out how to finalize it. MS. F ABACHER: Okay. Thank you. CHAIRMAN STRAIN: Okay, and that one, for everybody's purposes, starts on Page 47. It's one we've talked about twice before. There were some refinements. And it goes to Page 52. Is there any comments from the commissioners? Mr. Murray? COMMISSIONER MURRAY: The only thing that I had a problem with is on Page 49, and it's under 3-A, ii, and it speaks about 100 feet. And recognizing that that can create a number of problems, I know that the Chair recommended 40 feet. I'm in complete agreement with that, and I think it should be 40 feet to allow people who are adjoining each other that might wish to sell and plant those signs on their property. That would be my only item on that. CHAIRMAN STRAIN: Okay, any other comments? Mr. Schiffer? COMMISSIONER SCHIFFER: Let me see. Let's just start with three. One thought I had is, is to call this a temporary open house sign up in three, rather than -- because we sometimes refer to -- but there could be an impression that AI is not temporary. So my thought would be to scratch it and ii and just call the whole thing temporary open house signs, because I think the intent is that they would be there temporarily. CHAIRMAN STRAIN: So what you're saying is instead of3 starting out, open house signs, it would be 3 and it would say, temporary open house signs. And then the reference to temporary in the other numerics wouldn't be needed. COMMISSIONER SCHIFFER: Correct. Page 4 January 9,2008 And the -- and then just to make sure I understand it, the -- there's one sign that would be allowed to be at the premise. That's i. There was two other signs that would be allowed to be off-site somewhere. Total of three signs. Yeah, that seems to be right. And ii there isn't a time frame. So a thought is that this could be somewhat reorganized where you don't mention the time in -- for example, i, iii discussed the time. So maybe there should be a category that just has the time. Because the intent is that all these signs would be within that time frame. So, for example, it appears that since it's mentioned in i and iii but in ii there's no time frame. So my recommendation would be to pull the timing out, make it a Roman numeral somewhere. And that -- also, one more other thing is that the mention of 10 feet on the edge of the pavement might be smart to be a separate Roman numeral II. Because all the signs essentially have to be 10 feet off the pavement. Yet we're mentioning it in i, we're mentioning it in 5. So I think just pull that out, make that a category, and it would be clearer. And that's it. CHAIRMAN STRAIN: Brad, part of the objective today is to finish this, because we've been beating it around a lot. I really wish we had brought these issues up before, maybe staff had gotten a heads up from you beforehand. COMMISSIONER SCHIFFER: Well, but at the last meeting we just -- I actually wanted to discuss it, but we just took the input from the audience. It would have been good -- these are comments I had then. It would have been good, you're right. CHAIRMAN STRAIN: Well, I do want to finish with this today. I'd like to get this entire cycle done today. We've dragged it on for quite a while. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: And I think your suggestions are good. I have no problem with that. Page 5 January 9, 2008 But Catherine, before this meeting is over today, do you feel you can maybe summarize his suggestions to a point we can feel confident that you could put them into the right format to go forward with? MS. FABACHER: Certainly. CHAIRMAN STRAIN: Okay. Well, let's work from that angle then. There are two things mentioned that I'd like to further discuss. And Mr. Murray brought up a really good point about the 100 foot separation. And it is good to keep them 100 feet apart. But then again, sometimes if you have smaller lots, like in a lot of cases that we talked about where there are only -- some lots get down to 40 feet in width and you want to have an open house on that 40-foot lot but your neighbor's got a sign on his lot, you can't have an open house sign on yours. So maybe an exception to Roman numeral II -- or little ii, I'm sorry, would be no closer than 100 feet unless the lot width is less, at which case it can be on each lot. MS. F ABACHER: I could respond to that. Catherine Fabacher, for the record. Small i is the one in front of the house. There's no restriction. Small ii was put in to response to your concerns that at certain corners they would all cluster up in front of one property. So the 100 foot applies to the signs that are more or less directional, not the ones placed in front of the subject property. CHAIRMAN STRAIN: Oh, excellent, okay. COMMISSIONER MURRAY: I have a -- if I may? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER MURRAY: Because under ii when you get to the second sentence it says, such sign shall be located no closer than 100 feet from another temporary open house sign. I can't imagine -- I can't imagine a situation where you would be able to then fit necessary signs in some of the locations where there Page 6 January 9,2008 are loads of houses up for sale. Somebody would be excluded simply because of the 100- foot rule. Now, I grant you that I thought that that referenced parcel to parcel or lot to lot, but in the context of what you just explained, I'm just wondering. So I'm visualizing -- let's see if I'm right. I'm visualizing that here's an intersecting street and here is a sign and then 100 feet away from that is another sign and 100 feet away from that is another sign. There aren't that many hundreds of feet before you are into the intersection and down that street. So I don't know how that's going to work. MS. FABACHER: Well, Commissioner, as I had mentioned earlier, we're just responding to the planning commission's concerns about having a bunch of signs jumbled up at the corner in front of one person's property. So that's why we put it in. So whatever you want to direct as a commission, we're happy to do. CHAIRMAN STRAIN: Well, maybe I might offer as a comment, now that ii is, as you've corrected, is directional signs only, if you've got a series of homes down the street that have got open houses going on and you go to that intersection and you put up a sign to direct people further down the street, whether you put one sign up for one house, it's going to function for all, simply by the fact that that one sign's going to point people to go down that street. And if they pass one house that the sign actually was put up for but happen to see the other three or four, then that works. It gets people down the street. So that may be a really effective way of doing it and that could -- and if you look at 100 feet on basically -- that becomes an issue for every corner then of an intersection is almost about 100 feet apart because of our road system. So ifthere's a house -- if there's one sign on every intersection pointing down each driveway or each street, no matter how many homes are on that street they're all going to benefit from that one sign. Page 7 January 9, 2008 COMMISSIONER MURRAY: Y eah. You may recall part of the conversation earlier was my thought was, perhaps foolishly, but to have some kind of a little slip thing that said one house, two house, multiple houses, whatever. That was rejected and that's fine. But I recognize that. And I understand we're not going to be perfect on this, I appreciate that. I just am concerned with the possibility that you'll have people pulling signs out in order to put their sign in place of it. But one sign, if we're going to restrict it to one sign as a directional sign, that might actually be the better answer overall. CHAIRMAN STRAIN: Okay. Well, the other comment that I had is the 10 feet from the edge of pavement. And that's fine. I'm just curious, how would you apply that in Golden Gate Estates in areas where there's no pavement? MS. F ABACHER: No, I believe -- isn't it 10 feet from the edge of -- oh, it says pavement. It just would be the edge of the road, or it could be interpreted as the gutter. This is kind of the direction that staff has gone to in other departments when they write the code, to specify that something that would cover both, something with a curb and gutter and something without. CHAIRMAN STRAIN: Could we just say from the edge of pavement or road, if there is no pavement? That may be hard again to define, but the intent is from the traveled surface that's there. Because there is no gutters in Golden Gate Estates, and there are some rural areas that the roads are not paved. MS. FABACHER: We can certainly do that. But when staff interprets it, that's what they've come up with. Instead of going with all that language distinguishing between a curb and gutter situation or just a swale and the edge of the road, they interpret it to be the edge of the road when there is no sidewalk or curb and gutter. CHAIRMAN STRAIN: But see, I certainly don't like staff Page 8 January 9, 2008 making interpretations. I like everybody to read the letter of the code. If the code says pavement, then we should be measuring from pavement. And if it says pavement or the edge of road, that then would give maybe better latitude. Mr. Klatzkow? MR. KLATZKOW: Why not just make it road? CHAIRMAN STRAIN: That's fine for me, too. Yeah, take out pavement altogether. That covers everything. From the edge of the road. COMMISSIONER MURRAY: Does that in any way impact on other measurements that are made, such as for setbacks? I mean, are you going to create a controversy? CHAIRMAN STRAIN: No, this is just for signs. COMMISSIONER MURRAY: I recognize that. But can it be construed, so limited that it's just for signs? That doesn't create an unintended consequence someplace else? CHAIRMAN STRAIN: I don't see how. COMMISSIONER MURRAY: Okay. I'm good if that's good. That's fine. CHAIRMAN STRAIN: Okay, so let me -- Mr. Schiffer, go ahead. COMMISSIONER SCHIFFER: Actually, Mark, I remembered two more things. CHAIRMAN STRAIN: Sure. COMMISSIONER SCHIFFER: One is, and I think we keep calling it that in ii. Can we change that to be directional signs? In other words, let's just call them what they are. And then the other thought is that since we have the -- A is off premises open house signs, I think we should quit repeating it throughout the whole thing. In other words, i, we don't need to say off premises. In iii we could wipe out off-premises open house. All the way down the line, we keep saying off-premises, off-premises, which Page 9 January 9, 2008 essentially it's under the subtitle of off-premises, so I think we could clear that up, too. CHAIRMAN STRAIN: Okay. And Brad, I really have to compliment you on your ways of cleaning this up. I think they're good, I think it helps the code. But I'm very concerned about how much -- I don't want this coming back again to us, so I'd like to ask again, Catherine, I don't know how much of this you have in a format that you can jot our corrections to us, but I'll repeat what's been said so far for the benefit of you and for the benefit of panel in case anybody disagrees, and then we'll hear from the public. And I want to make sure we can come back before this meeting's over today with confidence that all the changes will get made. Because Brad's points are well made, I just wish they were made to you before today's meeting in a manner that we could have gotten them in print. COMMISSIONER SCHIFFER: Well, Mark, let's clear that up a second. I mean, what if -- I mean, I never had the thought that I would go to Catherine and have her change the wording -- MS. FABACHER: Not change-- COMMISSIONER SCHIFFER: -- without the rest of the board. MS. F ABACHER: -- but raise your concerns. Excuse me. COMMISSIONER SCHIFFER: But then we would be at the same point with Catherine in tune to my concerns, but we'd be in the same position. CHAIRMAN STRAIN: Or otherwise -- and Brad, I just -- the only problem I have is we're -- this is what, the third? COMMISSIONER SCHIFFER: Well, we didn't hear this last time. And when the -- MS. F ABACHER: Third. COMMISSIONER SCHIFFER: -- there were people in the audience, we weren't going to discuss it that night. But I actually did Page 10 January 9, 2008 bring up that I would like to get my comments out, too. CHAIRMAN STRAIN: Okay. Well, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Yeah, Brad, I think your comments are good, and will help clean it up. My concern is if we send this back for a rewrite and it doesn't come back, it's got to come back to us again and we might have to make changes again. We're just going to drag this thing out longer. CHAIRMAN STRAIN: That's why I'm hoping --I'm going to read through that was suggested so far. Maybe Catherine can try to do the best she can before the meeting today is over. Jeff? MR. KLATZKOW: We can make these changes and sort of bring it back to you on a consent agenda kind of thing on one of your regular meetings, and if you're not happy with it, pull it and fix it there. This is not going to the board for a while, is it? MS. FABACHER: It's going to them on the 16th. MR. KLATZKOW: You'll have a chance to see it before then. CHAIRMAN STRAIN: Well, if it's on the 16th, we have a meeting -- our next meeting is -- well, other than Friday, our next meeting next week is our regular meeting on -- COMMISSIONER MURRAY: 17th. CHAIRMAN STRAIN: -- the 17th. Yeah, so we don't -- MS. F ABACHER: And Commissioner, I have to -- excuse me, I have to send these packets out before the 16th. CHAIRMAN STRAIN: Right, I understand. So we're kind of stuck on the time. MS. F ABACHER: Tomorrow. CHAIRMAN STRAIN: Okay, well, let's finish this today somehow. But let's walk through what we've talked about so. MS. FABACHER: I had one more response to what Commissioner Schiffer had said about the making it a directional sign. I met extensively with the sign code people. And directional Page 11 January 9, 2008 signs are unfortunately in our code is what refers to what I used to call a multi occupancy sign where you can have a tall sign with all the different thing there. So I know it's residential, but we were trying to avoid the confusion of using the term a directional sign. Because in the current sign code a directional sign means like I said, what I used to call a multi occupancy sign for a shopping center or would even be for multi-family units. COMMISSIONER SCHIFFER: Ifwe didn't bold it, then would that maybe mean that it isn't the definition version of directional? In other words, anything that we have a definition for, and if you say we have a definition -- MS. F ABACHER: Actually, no, because the bolding is very hit or miss in the code. CHAIRMAN STRAIN: Well, if you read the second sentence, it says for -- two temporary open house signs may be placed within the public right-of-way, providing direction to a supervised open house. MS. F ABACHER: Yeah, that's why we chose that language. COMMISSIONER SCHIFFER: Okay, let it go then. CHAIRMAN STRAIN: Okay. Well, let's go through the rest of them real quick and make sure we're all in agreement. Starting at the number three: In front of open house signs, we now insert the word temporary open house signs. Then A where it says off-premises open house signs stays the same. But where we use the word off-premises in the rest of these we strike that word because it's redundant, it's in the title. Is that -- Brad? COMMISSIONER SCHIFFER: I think it's where we use the word off-premises open house. We can keep the word signs. But throughout the thing we refer to off-premises open house signs, so I think it should just read signs, not off-premises open house. COMMISSIONER MURRAY: I agree. CHAIRMAN STRAIN: Okay, so one -- the first i would be one sign may be located in the public right-of-way. Page 12 January 9, 2008 Okay, and then the references in each one of these Roman-- these little i's referencing the hours of which they can -- where they can be replaced and the location will be in a separate paragraph and the redundancy will be taken out of each paragraph. MS. F ABACHER: Commissioner, I note that we do have that in small iii, we do kind of state open house signs may only be displayed -- we could just move that up to the first and that would take care I think of your concern about the time and we could take it out of everything -- COMMISSIONER SCHIFFER: But my concern is you didn't put that in ii, so the impression could be -- MS. F ABACHER: I understood, I understood. And I think your direction was to put that up as its own, and we would move three up to one, and then we would strike the times out of all the others, because it would cover everybody. CHAIRMAN STRAIN: So you'd have -- you'd summarize in the sense that you'd take the commonality out of them all and you'd put them in separate paragraphs. So you'd have an overall time in one paragraph and a distance -- MS. FABACHER: Exactly. CHAIRMAN STRAIN: -- a replacement, a distance from the road in one paragraph. MS. F ABACHER: Right. CHAIRMAN STRAIN: Strike it out of the rest, strike out off-premises open house so that we're referring to the signs, because we've got the title defining what they are. And that gets us to where we need to be, I think. Those are the issues that we seem to be talking about here today. COMMISSIONER MURRAY: B, we also have -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- a change under ii from two to one. Page 13 January 9, 2008 COMMISSIONER SCHIFFER: No, no, no. COMMISSIONER MURRAY: No? MS. F ABACHER: No. COMMISSIONER MURRAY: I thought we agreed that you would have only one sign. Maybe I was just agreeing with myself. CHAIRMAN STRAIN: No, a total of three. One, the first i and then two in the second -- COMMISSIONER MURRAY: I'm talking about ii. CHAIRMAN STRAIN: Right. COMMISSIONER MURRAY: I thought the way that you came up with solving that would be to have one directional sign. MS. FABACHER: No, I believe he-- CHAIRMAN STRAIN: I was just defining why we may not need to have multiple signs closer at the intersection. But this would allow two. COMMISSIONER MURRAY: Well, here again, I'll restate my issue. If somebody, an eager real estate person somehow or another decides I've got to get the play and they pull one person's sign out in order to replace it with their sign, that's all I'm concerned about. CHAIRMAN STRAIN: Well, I mean, I think then that's a violation of law. Probably because it's either theft or fraud or vandalism or something, I don't know. They could certainly go after one another legally in that case. COMMISSIONER MURRAY: I know, but I thought we would like to make the law as clear as we could to make sure we could obviate that opportunity. Okay. Maybe the public speaker will mention the issue. CHAIRMAN STRAIN: Okay, from the -- COMMISSIONER SCHIFFER: Just one more thing, Mark? CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: In ii we remove the word temporary? Page 14 January 9, 2008 CHAIRMAN STRAIN: Yes, you're right. Okay, any other comments from the planning commission? (No response.) CHAIRMAN STRAIN: Catherine, from our perspective so far, do you understand what we're trying to say? MS. FABACHER: Would you like me to repeat? CHAIRMAN STRAIN: No, I just want-- MS. F ABACHER: Yes, I do, I have everything. CHAIRMAN STRAIN: Okay. Then public speakers, I guess Mr. Poteet is the only public speaker? MS. F ABACHER: Exactly, Mr. Poteet is here. MR. POTEET: Good morning. For the record, my name is William H. Poteet, Jr., and I'm here representing the Naples Area Board of Realtors. First of all, I would like to compliment Catherine and her staff, because what they've drafted and they brought before you today our board thinks is a very effective tool. It will take away a lot of the complaints we get from code enforcement and allow us to do our jobs and represent the buyers and sellers of Collier County. My only question I had on this thing is on number three I believe you took away the word temporary -- or you added the word temporary there. And there was a clear distinction between the two directional signs and the open house sign. We just want to make sure that if we have two open house signs that are adjacent to each other, two open houses going on that are adjacent to each other, that they're not in violation of this little ordinance and each of them can put a sign in front of the house. As long as that's clear, we do not have a problem with it whatsoever. And we actually think this is going to be very good for the community. CHAIRMAN STRAIN: Thank you. And I think your issue is resolved in the sense that -- well, you can have -- every lot can have its own sign is what it basically boils down to. And then the beginning Page 15 January 9, 2008 in number three, the header to this whole thing, labels the whole thing as temporary. So that's why the redundancy of the word temporary, as Brad pointed out, is probably -- MR. POTEET: But when you went down to ii it said you can have two signs, but they couldn't be closer than 100 feet from each other. And we just wanted to make sure that that didn't overlap back up to three. MS. F ABACHER: No, that -- no, that's for -- that's why we put in providing direction. MR. POTEET: Okay. As long as it's clear. Thank you. CHAIRMAN STRAIN: Thank you very much. Okay, with that do we have any further comments? (No response.) CHAIRMAN STRAIN: I guess we'll reserve final recommendation until, Catherine, you can come back and clarify the language to us as we've talked about before the meeting's over today, okay? MS. F ABACHER: Sure. CHAIRMAN STRAIN: I just want to make sure that if you could just go back through it and scratch it out. Is there any way you can modify anything before the meeting's over today, or is that something that you don't have the capabilities because of lack of computer? MS. FABACHER: Well, lack of --I'm the only one here, so-- perhaps I can get John on the computer. COMMISSIONER SCHIFFER: If you could give me a clean copy where nobody marked on it, I'll take the shot at scratching through and doing it. MS. F ABACHER: I think I have that. COMMISSIONER SCHIFFER: Let me -- it will take me a second to do that. We can do that while we're going on. CHAIRMAN STRAIN : Well, so we'll just defer the final recommendation of this until we finish with that. Page 16 January 9, 2008 I want to make sure it's right. Because I want to -- we don't have time for a second reading. I don't want it to go forward and then have someone say well, you didn't get everything in to the BCC correctly, and then staffs at -- on a threshold of being blamed for something and we're disappointed because it didn't happen right. So we're just going to hold off until later in this meeting for that issue. Next issue I think we talked about having is the affordable housing. MS. F ABACHER: All right, Commissioners, that is going to be on Page 1 in your book, and Page A of the spreadsheet. And we have Cormac Giblin here to explain the changes that he's put in since your last -- our last meeting. And then I think we have the director of housing and human services here to provide comments also. All right? CHAIRMAN STRAIN: Okay. MR. GIBLIN: Good morning, Commissioners. CHAIRMAN STRAIN: Good morning. MR. GIBLIN: Cormac Giblin, project manager with WilsonMiller. CHAIRMAN STRAIN: Cormac, if I'm not mistaken, the reason you're presenting this over staff is that this was generated as a private sector amendment to the LDC -- MR. GIBLIN: That's correct. CHAIRMAN STRAIN: -- is that right? MR. GIBLIN: That's correct. CHAIRMAN STRAIN: Okay, thank you. MR. GIBLIN: Project manager with WilsonMiller, representing the Oliver Group. I was here at your meeting last month presenting the first draft of this. And from that meeting there were several comments and suggestions made on the part of planning commission, which we've attempted to incorporate into this draft you have before you now. Page 17 January 9, 2008 I'll walk through a couple of those changes that have been made. Also, since your last meeting this amendment has also been brought to the county's affordable housing commission where it was overwhelmingly approved at that meeting in December. A couple of the key areas that have been changed since your first draft was the concept of the essential service personnel employee, which was very much at the forefront of the previous amendment. At your recommendation that language has now been taken out of the requested amendment, and basically this would apply to all affordable housing, regardless of where you work or who you work for. I think there were some concerns on the part of the planning commission last month about it may produce company towns or have people with obligation over their head tied to their living situation, and so that entire situation has been taken off the table now, again at your direction. Another change that was made, again at your direction, from the last meeting was that we've attempted to split the density bonus chart and density bonus amounts into two categories: One for home ownership and one for rental units. And you can see that on Page 3 is your existing home ownership chart has been virtually unchanged except for some minor cleanup of the percentages that was at the housing commission's recommendation. But the chart itself and the amount of bonus you get as a basis of how many affordable units you provide has not changed at all in the home ownership side. What we've done is create a new table below that on Page 4 for rental use. And it was the pleasure of this commission again that affordable housing density bonuses should be allowed for rental housing, but perhaps they should not be allowed at the same level as owner occupied housing. There was a desire to make it -- to install a preference in the code for owner occupied housing, while still allowing some level of benefit for rental housing. Page 18 January 9, 2008 And that's what the table below it on Page 4 does is that it essentially shifts everything over to the right 10 percent, so essentially it's 10 percent harder, or you get 10 percent less benefit for doing rental housing as you would if you were doing owner occupied housing. And again, I think that was the direction given by several of you at the last meeting. Since we produced this draft I did receive a couple of comments from staff through Catherine regarding how these units would be monitored or enforced by the county, and also what the maximum rental amounts charged on these rental units would be or could be. And to that end, I provided some information to staff regarding what the county's monitoring and enforcement current code is. And I believe it's very stringent. It requires a yearly monitoring progress report listing all the occupants, all their rents, all their incomes, requires third-party verifications of household income. Failure to provide those to the county on September 30th of each year results in a $50 per day fine. If violations are found and they're not corrected, it goes to a $500 per day fine, up to and including 60 days in jail for the property owner and ultimate penalty would be revocation of the C.O. of a unit that is found in non -- not in compliance. So we think that the existing monitoring and enforcement rules that the county has on the books would certainly apply to these units and that they are sufficient to guard against people trying to take advantage of the system. The second issue by staff was the rent limits. HUD -- the county and HUD determine the rent limits for Collier County, maximum rental amounts for affordable units. And it's based on a percentage of medium income. Now, if you were to take the -- this amendment, remember, is asking for rental -- affordable housing density bonuses for rental units at the workforce and gap level of housing. If you were to take the 80 percent of medium income, which is low income, and use the HUD Page 19 January 9, 2008 chart as to what maximum rent would be allowed to be charged, you would be probably just over what fair market rent in Collier County is anyway. So again, at the -- to address staffs concern, we've added a sentence here in the amendment that all the rents, regardless of income level, would be capped at no more than the 60 percent of median income level, which is about $850 a month, which we feel would be very affordable rent for a two-bedroom apartment. With that, those are the changes that we've incorporated since your last meeting. And if you have any questions, I'd be happy to answer them. COMMISSIONER MURRAY: I have questions. CHAIRMAN STRAIN: Okay, so for the commissioners, this issue starts on Page 1 and goes through Page 5. Are there any comments from the planning commission? Mr. Schiffer, then Mr. Murray, then Mr. Vigliotti. COMMISSIONER SCHIFFER: Cormac, to start with, prior to this we get to this section in code, we reference table A a lot. So should we change that everywhere it says table A to be A and B? MR. GIBLIN: That's correct. COMMISSIONER SCHIFFER: Okay. So that strike through and underlined in the prior wording should be done. Or we can call both of these table A. You obviously choose one for the particular use you're usmg. MR. GIBLIN: I think actually that was a change Catherine made. I think since -- when I submitted, I think I did A-I and A-2 or something like that. And then it was changed. It should just be consistent with whatever the previous code says. COMMISSIONER SCHIFFER: So Catherine, everywhere we reference table A, make sure we reference table B also, if it applies. There may be a reference to -- okay. Cormac, why did you change in gap housing the ratio in which Page 20 January 9, 2008 you do it? And the concern I have is that in the owner occupied, the premise that you have to do 10 percent at 80 percent before you get the gap credits, if you essentially change that the way you worded it, gap is at 80 percent, thus you would eliminate I think the intent of that double asterisk. So if you wanted -- in other words -- you see what I'm saying? Gap starts at 80 now. Prior to that, it was greater than 80. CHAIRMAN STRAIN: Cormac, what I think Brad's referring to is on Page 2, the two changes you made. I think you may have a typo, because you start both workforce and gap housing at 81 percent. MR. GIBLIN: No, that is actually correct that way. Gap housing -- again, if you look up to the owner occupied gap housing, which is about five lines above that, gap housing by current definition is 81 to 150. And workforce is essentially a subset of that that goes from 81 to 100. CHAIRMAN STRAIN: Why do we have workforce then? It doesn't make any sense. MR. GIBLIN: There were many terms adopted over the past couple years that tended to overlap and -- COMMISSIONER SCHIFFER: Well, but my real question is, back on table A, under gap, you change it to 80 percent. And what essentially you're saying is if you look at your double asterisk, you know, may only be used in conjunction with at least 10 percent at or below 80 percent. So in other words -- I think what I'd rather say is can you say at or below workforce product, which is a definition you have -- MR. GIBLIN: I think I understand the confusion there. Maybe just deleting the word below. So the asterisk would read may only be used in conjunction with at least 10 percent below 80 percent. COMMISSIONER SCHIFFER: But why are you moving gap to 80 percent? That's what you've kind of done in your table, which I don't think is correct anyway. MR. GIBLIN: Yeah, again, I don't think that that's correct. Page 21 January 9, 2008 COMMISSIONER SCHIFFER: I mean, you should say greater than 80 percent. MR. GIBLIN: Correct. COMMISSIONER SCHIFFER: But no less than -- MR. GIBLIN: Right, removing the word "and" in the table. COMMISSIONER SCHIFFER: Okay. But you're going to say greater than 80 percent. In other words, if you say 80 percent, then you can -- essentially gap would qualify for the 10 percent for gap, so -- okay, so -- MR. GIBLIN: You're correct. COMMISSIONER SCHIFFER: -- you're going to say greater than 80 percent. And Mark, that doesn't solve the problems you had over here, those -- it's a separate issue. CHAIRMAN STRAIN: No. COMMISSIONER SCHIFFER: Cormac, the other thing is why is there zero, 10 percent zero. You're requesting people to build 10 percent product again, kind of the same issue in rental, yet you're not giving any density bonus for them to do that. So what you're saying with table B -- MR. GIBLIN: You're speaking of the asterisk under table B? COMMISSIONER SCHIFFER: And referencing the fact that if someone did that, they wouldn't get any density bonus for it. You've zeroed out a density bonus -- MR. GIBLIN: Right, I understand. That could be changed to at least 20 percent then. Because again, there would be no bonus for rental housing if you only did 10 percent of the units. COMMISSIONER SCHIFFER: And why not? Is that a -- MR. GIBLIN: Well, the reasoning was again because I felt it was the pleasure of this commission that the code inherently favor home ownership. And so that was a -- what I came up with to try to favor Page 22 January 9, 2008 home ownership is to make -- getting a bonus, you have to do a little bit more. COMMISSIONER SCHIFFER: But I think, you know, the times we're in, rental's important, too. MR. GIBLIN: I agree. COMMISSIONER SCHIFFER: I mean, we -- there's a lot of discussion on rental, especially now since a lot of the rentals went into condo, and a lot of those condos are under foreclosure, so they wish they could rent the unit they bought. But anyway, I question that. And the other question really is, is how do you come up with this spread of density? I at one time charted the density bonus system, and why would anybody build past -- when they hit eight, why would they go into the other categories? They never would. So in other words, we give them the prize pretty quickly. In rental we give it to them at 50 percent. In gap we give it to them at 40, the highest density they can get. Why would they ever go further down the chart? MR. GIBLIN: Well, there are other reasons why people build 100 percent affordable developments, with be it grant funding or state funding or federal tax credits. But our code itself tries to encourage people to do as much as they can. And that seems to be -- these numbers that are in the chart, if you remember, they were adopted maybe two years ago as a result of a study that Fishkind and Associates did for the county, where he looked at property values and construction costs and ability to buy. And that was in response to the Board of County Commissioners asking for some economics or science to be put behind these numbers, and these were the numbers that came out of that study. COMMISSIONER SCHIFFER: That's the upper table. MR. GIBLIN: The upper table. COMMISSIONER SCHIFFER: And the lower table we're inventing today, correct? MR. GIBLIN: Well, the lower table is the same numbers, just Page 23 January 9,2008 made harder to get there. It's been shifted over one column. COMMISSIONER SCHIFFER: That's all you've done? MR. GIBLIN: Yes. COMMISSIONER SCHIFFER: Okay. That will be it for now, Mark, thank you. CHAIRMAN STRAIN: Okay, Mr. Murray? COMMISSIONER MURRAY: I don't think mine's a meat issue. Mine is on Page 2, and I just -- maybe I missed something, but you have a recitation for each under owner, and then you have a recitation for rental, but you didn't have a recitation for 61 to 80 percent. Is that left out on purpose? Did I miss something, or is that just -- MR. GIBLIN: Again, with so many of these categories tending to overlap, it mayor may not be needed. Certainly could be added, just for consistency, rental, affordable housing, or rental workforce housing, 61 to 80 percent of median, just to keep the flow complete. CHAIRMAN STRAIN: Well, I mean, Mr. Murray's right, if you don't put that in, you can't have rental housing between 61 and 80 percent, can you? MR. GIBLIN: I think that's right. That's correct. That will be added. COMMISSIONER MURRAY: I thought maybe I was wrong, but hey. That was my issue. So we're going to put the recitation-- CHAIRMAN STRAIN: Okay, well, we'll go on. I'm summarizing everything. In the end we'll go through it all again. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Good morning, Cormac. You came up with a term median market rental price? MR. GIBLIN: Fair market rent. COMMISSIONER VIGLIOTTI: Fair market rent. How did you accumulate the numbers and when were they accumulated? MR. GIBLIN: Fair market rent is a calculation done by the Page 24 January 9, 2008 federal government once a year for every MSA in the country. And it's available, published by HUD or published by the federal government. It was -- the number that I was referencing was the 2007 number. So it's the most current that's available. COMMISSIONER VIGLIOTTI: So that's a Nationwide number, not specific -- MR. GIBLIN: No, no, it's done specifically for every MSA in the country. So Collier County has its own, Lee County has its own. COMMISSIONER VIGLIOTTI: And what is ours right now; do you know what -- MR. GIBLIN: Ours right now -- I didn't bring it with me, but I believe it's around $875 or something, something to that effect is our fair market rent. COMMISSIONER VIGLIOTTI: Right now? MR. GIBLIN: Um-hum. COMMISSIONER VIGLIOTTI: For a two-bedroom? MR. GIBLIN: Yes, for a two-bedroom. It does vary by bedroom SIze. COMMISSIONER VIGLIOTTI: Okay, thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, on Bob's point, Bob, in the back of the book Cormac has included, if you look there's a yellow page in the back. Beyond that there is an analysis of what that is. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Okay, are there any more comments or questions on this part of the LDC amendments? Ms. Fabacher? MS. F ABACHER: I wanted to correct what might have been a miscommunication. But initially I think when Cormac said that they had put the 60 percent cap in on the maximum rental price, that it was responding to staff, actually staffs concerns were identified as the fact that the higher end from 80 and -- well, 120 and 140 on, those higher Page 25 January 9, 2008 end rentals, staff said were way above rentals that were being offered by the market itself. And my personal logic was that, you know, if you're paying that much money you might as well buy something. So I didn't -- we didn't recommend capping it at all. Just to clarify. My concern only was saying that these higher end rental, monthly rental prices for the 120 and the 140 were way out of the ballpark for anything that is in the market for I think would be an obvious reason. MR. GIBLIN: And I think the cap solves that problem, though. MS. FABACHER: But I'm just saying that we did not direct towards the cap. Because that was not -- CHAIRMAN STRAIN: Well, that's fine. But I think the cap accomplishes the goal of retaining it as rental. MS. F ABACHER: I just wanted to clarify that that was not anything staff was looking for at cap. CHAIRMAN STRAIN: Is there any other comments from the planning commission? (No response.) CHAIRMAN STRAIN: I have one more. How long or how do we control -- and you may have answered this in your dissertation at the end. I did read it but I don't remember it right now. How long must -- how do we control the length in which someone has to retain a unit for rental purposes? MR. GIBLIN: The affordable housing density bonus agreement is attached to a PUD. Runs with the land. It's enforced by the full-- again, I went through the enforcement options. The length of that agreement is 15 years. So these units must comply with that agreement for 15 years. CHAIRMAN STRAIN: Okay, so they couldn't convert to condo -- well, I guess they could, but then it would be a rental condo. MR. KLATZKOW: It could be condos to begin with. CHAIRMAN STRAIN: Right. As long as they're rentals. Page 26 January 9, 2008 MR. KLATZKOW: Yes. CHAIRMAN STRAIN: And they could sell them as often as they wanted to, as long as they continued renting them out for the price that they were obligated to for 15 years. MR. KLATZKOW: That's right. CHAIRMAN STRAIN: Okay. Is there any escalation costs in that 15-year rate on a year-by-year basis? MR. GIBLIN: Well, the maximum allowable rent again that we've capped at the 60 percent median level is calculated year by year by HUD. So that -- sometimes it can go up, sometimes it can go down, based on market conditions. CHAIRMAN STRAIN: Now what does it go up and down based upon? MR. GIBLIN: It goes up and down based on median income. CHAIRMAN STRAIN: Okay. MR. GIBLIN: That is a calculation of what you can afford. So if the median income in the area goes up, that calculation goes up along with it. If it goes down, it may go down. CHAIRMAN STRAIN: Has the median income gone up or down in the last couple of years? MR. GIBLIN: It's gone both ways. It's gone -- CHAIRMAN STRAIN: Is it up or down today compared to two years ago, do you think? COMMISSIONER MURRAY: I know the answer to that question. MR. GIBLIN: IfMr. Murray knows the answer-- CHAIRMAN STRAIN: Mr. Murray? MR. GIBLIN: I think it's very close to -- COMMISSIONER MURRAY: I was at a meeting yesterday, I think it was, and it was announced that the current median income is $38,817. CHAIRMAN STRAIN: Okay, but that doesn't answer what is-- Page 27 January 9, 2008 MS. FABACHER: Excuse me, that's not the-- COMMISSIONER MURRAY: I'm sorry, that's the average wage. MS. F ABACHER: -- MSA. That's not for the MSA. COMMISSIONER MURRAY: You're right. Sorry about that. MS. F ABACHER: Metropolitan Statistical Area, which they use the -- I guess the census tracks of Naples, Marco Island is really kind of a substitute for the Collier County. MR. GIBLIN: In the past few years, I know that the median household income in Collier County has gone from $69,800 a year down to 66,100, down to 63,500. The past few years there has been a slight downward trend. CHAIRMAN STRAIN: Where I'm going with this, rentals are a little different than home ownership. Home ownership you're obligated by a mortgage to whatever you buy in at the time. If the rental program allows a fluctuation in rental rates, based upon the median income, that fluctuates yearly, yet people for example two years ago who would have bought investment property to rent out and may have wanted to enter this program for 15 years in order to see their depreciations and returns come back and forth would have been locked into the mortgage that they locked into when they bought the unit at the high side two years ago, but under our rental program, they wouldn't be able to recoup a return on that to what they were counting on when they bought two years ago, because the median income could be declining, as it possibly is now. As a result, they're obligated to pay more out of pocket to retain the price by which they bought the unit and mortgaged it for, versus now what they're able to recoup mandatorily because of this program on a rental cost. MR. GIBLIN: I can answer that in two ways. The first is that HUD -- the calculation here done by HUD is -- again, I've seen kind of the backup for it. It's about three-quarters of an inch or an inch binder just on how that number is determined. Page 28 January 9, 2008 There are some safeguards being built into it that if it goes down -- or if median income goes down, then income limits and rents don't correspondingly go down as much. There is a buffer, if you would, built into that number, calculated by HUD. The second answer I would give was that sort of the same issue was raised by our affordable housing commission when they discussed this last month. And the bottom line that seemed to be consensus of the commission was, you know, buyer beware. If you decide to provide rental units in a program like this, these are the rules. And if you don't comply with the rules, this is -- these are the penalties and enforcement options available to the county. So you should be sure that you know what you're getting into. CHAIRMAN STRAIN: Okay. Are there any other comments from the planning commission? COMMISSIONER SCHIFFER: Just -- CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And Cormac, it's the HUD chart. Essentially somebody gets the density bonus. They're going to provide for less than 60. So they're happy, they got their eight, they built the unit. But they make more money renting to wealthier -- in other words, they make more money renting to a guy at 60 than they would at a guy at 25 percent. MR. GIBLIN: That's correct. COMMISSIONER SCHIFFER: So what's the incentive to give poor -- in other words, essentially what we're giving is 60 percent people rental -- MR. GIBLIN: Well, the incentive would be you would -- the lower you go on that scale, the more density you get in exchange for fewer of the units being encumbered. COMMISSIONER SCHIFFER: Well, they all seem to slam into eight right away together. My point is that the product for low and very low has a really Page 29 January 9, 2008 low and very low chance of being built if the other stuff -- I mean, the guy is going -- there's no advantage to a developer once he's got the density to go lower, the way this chart's set up. MR. GIBLIN: That is unless they only wanted to do maybe 10 or 20 percent affordable and the rest market rate. Then in those situations they could do a few units at a very low income at a very low rent and still achieve a workable density. COMMISSIONER SCHIFFER: But my point is, we're never going to get product to the low and very low by the way the system's set up. There's no reward to the developer. He gets his density in a straight line at 50 percent. MR. GIBLIN: At 50 percent, yeah. The 50 percent is basically the bottom. 50 percent and below is the bottom of the -- COMMISSIONER SCHIFFER: And again, so my point comes down to what's the science on the numbers? I mean, the incentive of what a program like this should be, the way the numbers are set up, it doesn't seem to encourage that. But I'm done. CHAIRMAN STRAIN: Any other comments from anybody? Ms. Caron? COMMISSIONER CARON: Well, I agree with Mr. Schiffer's comment. I think we are incentivizing the wrong end of this scale. I just don't see this as good policy. CHAIRMAN STRAIN: Well, can you elaborate on what you think could be changed to make it better policy? COMMISSIONER CARON: Well, again, I think you need to reverse where the benefit happens. The benefit should happen for people doing workforce or low income and moderate income, as opposed to gap housing. Gap housing is profitable housing. And it seems to me that we're sort of creating other profit centers for businesses. CHAIRMAN STRAIN: Okay, well, I'm just trying to figure out Page 30 January 9, 2008 COMMISSIONER CARON: If you're in the hospital business, we've now given you a second business to be in to make money. And because everybody will build this gap housing because that -- the chart does favor building the gap housing over the low income housing. CHAIRMAN STRAIN: If I'm not mistaken, this was a private sector amendment with the intention of creating rental units for essential -- I think you termed it originally essential services, which mostly fall into the higher end, not the lower end. MR. GIBLIN: Correct. CHAIRMAN STRAIN: Okay. And now what is being -- what we're attempting to do with it is not only provide what you asked for, but to open up further realms into different categories that you had not requested. MR. GIBLIN: Or maybe the same categories but at a different level or different benefit may be what I'm hearing. Again, we did not monkey with the chart numbers, monkey with -- for the most part, or actually in the whole part, the first chart is unchanged. That's their existing code. And you can see, it does slant the lower income you get, or lower income units you provide, the quicker you can achieve that maximum density bonus. And that's the basis of the chart. And then we've just carried that same premise over to the other chart. CHAIRMAN STRAIN: Well, I'm trying to get to a point where we've got some kind of workable program or we agree it isn't workable. And I'm hearing a mixed review from this panel. And I think the job is to get it off the dime. Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Mark, I'd like to -- I mean, was staff involved in coming up with the densities that you show on table B? MR. GIBLIN: No, sir. COMMISSIONER SCHIFFER: I mean, and what you did is you Page 31 January 9, 2008 took the old table A, shifted it one category to the right -- MR. GIBLIN: Correct. COMMISSIONER SCHIFFER: -- and then zeroed out 10 percent at no benefit for building a little bit of stuff. MR. GIBLIN: Correct. And again, that was -- that's the way I interpreted your direction at the last meeting was to make it -- make the code inherently favor the home ownership chart over rental. CHAIRMAN STRAIN: And that's been the direction of the board all along. We were exactly trying to follow that. COMMISSIONER CARON: Absolutely. COMMISSIONER SCHIFFER: Yeah. I mean, I think we need low and very low rental. I certainly wouldn't mind sliding some density bonus for that in rentals. CHAIRMAN STRAIN: We have someone here from our staff who could possibly shed light on that? MR. GIBLIN: Mr. Schiffer, as she's taking the stand, now I do see your point. And may I make a suggestion, that on the rental chart B, that the low and very low, the zeros be removed in the 10 percent category and everything be shifted back over to the left. CHAIRMAN STRAIN: See, I would be against that myself. I think that's just the opposite direction this county's been heading in for all these years. And while I favor rental housing, if it can't be done in a quantity that works, then there's no sense in starting it out in small piecemeal chunks. But anyway, let's hear what you've got to say, maybe you can help us out, young lady. MS. KRUMBINE: I'm not sure. Good morning. For the record, Marcy Krumbine, Director of Housing and Human Services. And I have a couple of -- some more numbers to share with you. But before I do that, I guess I want to say that I'm a little concerned that -- to say that if the proposal is really doing what the proposal is supposed to do, okay, and I like to bring things down to really plain Page 32 January 9, 2008 language. So if Marcy Krumbine, developer, wanted to build let's say 16 units and then Marcy Krumbine would have the option of doing one of two things: She would have the option of either considering those units rental units and then hiring like a management company to rent out the units to people of certain income qualifications, or Marcy Krumbine, developer, would have the option of then selling them as condos. I don't see where this proposal allows Marcy Krumbine development to sell the condos to Naples Community Hospital to then rent them out. So I don't see that that is there. And I think that that's what we're trying to accomplish. So that's my concern with the way that the program is going. But let's look at the market. Because the whole purpose of anything that we want to do is to say is there a need, and if there's a need, then how -- is it the government's responsibility to help fill that need, and then are we filling that need and meeting that gap correctly. So let's look at some of these things. This is the rental chart that we've all been talking about. And if you look at the bottom, highlighted in yellow is the rentals that could be charged, based on the median income at 80, 120 and 140. And that was the first concern that we had was that you're looking at rentals that could be up to 1,800, $2,200. And that was -- how is that going to help anybody? I mean, they could go out in the market and buy a -- and rent or buy a very nice place for that amount of money. So that was a little concern right there. Okay, and then the way that this works is you take out the cost of utilities. So we've adjusted that to take out the cost of utilities. And we're still looking at a two-bedroom at 140 being $2,100, okay? CHAIRMAN STRAIN: But before you go too far, wasn't there a suggested cap at 60 percent? MS. KRUMBINE: Yeah, I'm going to get to that. CHAIRMAN STRAIN: Okay, thank you. Page 33 January 9, 2008 MS. KRUMBINE: Okay, now, this is a little hard to read, but we went to the Southwest Florida Apartment Association to say well, what have you got out there and what's the occupancy rate? And if you just look right down the first column -- well, the second column. Let's all go by two/twos. If you go down the two/two column and -- you see that there is nothing really that high up in the scale that they monitor. And then you look to the far right-hand side to the percentage of occupancy and right now the market is such where these -- they used to be at 99 percent occupancy, and now they're not. And so the concern is that where is the market for building these units at a level-- at any level? Right now there is no market for it right now. And then this is the point, is if we go ahead and cap them, okay, we're going to cap it at -- if you look at that. So a two-bedroom, two-bath is going to be capped at $852. Okay, so that would be the most that they could charge, which means that then somehow we're subsidizing the balance. MS. F ABACHER: Actually, I think that this chart shows that the figures in blue are levels of rentals that are not provided in the current market. MS. KRUMBINE: Right. MS. F ABACHER: Because they don't make sense. So that's what we're saying is if you looked at the -- if you studied completely the market survey on apartment rentals in the market now, there's nothing provided as rentals at this level. And I think the argument was is there's a reason for that. If you're going to spend that much money, particularly in this market now, buy a house, get some equity. I think the next slide you were talking about, Marcy, was -- MS. KRUMBINE: Was the cap. And so this is the annual subsidy per unit. CHAIRMAN STRAIN: By subsidy, you mean -- how is that subsidized? Page 34 January 9,2008 MS. KRUMBINE: Well, it's subsidized by the density bonuses that you're giving. MS. F ABACHER: The cap. CHAIRMAN STRAIN: Okay. MS. KRUMBINE: Yeah. So what we're saying is that the way this program works is that, you know, Marcy Krumbine, developer, is going to develop 16 units and then she could have rented the units for 1,700 or 2,100 a year -- a month. But based on this proposal, she's going to cap it at $852. And then, you know, one of the things that I said to the Affordable Housing Commission when I brought up the idea that -- the concern of the monitoring with this level of income. See, in our department we deal with 80 percent below all the time. And there's all sorts of subsidies that are attached to rental and home ownership and from a state level, federal level. And so they're used to be monitored. They're used to showing income. They're used to falling within very specific guidelines. When you go over 81 percent and you go to your firefighters and your police officers and the people that are making the higher levels, they're not -- they're not used to, nor are the management companies nor are the developers used to following that buyer beware. So that's not to say that it's right or wrong, or that's not to say that it can't be changed, but you're dealing with a totally different population. And I know when I'm working with the Affordable Housing Commission and the people that are looking at other ordinances and they're sitting there saying well, they'll just have to do it, or they say to me, well, that's not fair to do it for those people, or that's not fair, and we don't really want to put all those constraints on them. Well, you can't have it both ways. If you're going to create a program with density bonuses and subsidies, then there's going to be all sorts of constraints. And I'm here to tell you that it's a difficult mix to put it over 81 percent. Page 35 January 9,2008 CHAIRMAN STRAIN: Okay, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Marcy, can you take your developer hat off for a minute, put your county hat on? MS. KRUMBINE: Sure. COMMISSIONER VIGLIOTTI: What suggestions would you make? What input do you have regarding this process? MS. KRUMBINE: I don't -- my input is that at this point in time I don't think that creating density bonuses for rental units up to the gap level is a feasible process. CHAIRMAN STRAIN: Okay, Mr. Schiffer? COMMISSIONER SCHIFFER: Marcy, what is the relationship -- in our table we have a percent of household median income. Is that the same percentage that would be in the HUD chart? So when we say 60, does that mean 60 in the HUD chart too? MS. KRUMBINE: Yes. COMMISSIONER SCHIFFER: So when we put this clause in there that the maximum rental amount to be charged will be capped at the 60 percent, aren't we locking it in that the renters have to be at 60 percent or -- MS. KRUMBINE: No. No, that's the whole point of the proposal is that we're saying that we want to open it up to people over 81 percent of the median income, but only charge them at the 60 percent level. COMMISSIONER SCHIFFER: Yeah, something's -- MR. GIBLIN: May I address a couple things? CHAIRMAN STRAIN: Sure, go ahead. MR. GIBLIN: Marcy, can you put the apartment inventory back on the screen, please? MS. KRUMBINE: I'll try. MR. GIBLIN: When that slide was on the screen, the question that was asked was where's the market for the 61 to 150. And I would tell you that I think maybe 90,95 percent of the units or complexes on Page 36 January 9, 2008 this list are restricted to their units' need to be occupied and rented to folks at 60 percent or less of median income. So I think the question is where is the apartment complex inventory market for those people who make too much to live in one of these units? And that is the issue that my client and that the essential service personnel employers are grappling with right now is that yes, there are affordable units in the community, but they're restricted by the very density bonuses that they received in the past, or there are state and federal funding requirements that limit them to 60 percent or less of median income. And that's the very reason that we're here today is to create rentals at a higher income level. And not all of them on the sheet are, but the majority are. CHAIRMAN STRAIN: So what you're trying to do is be able to get density bonuses to create more rental units to service people in the 81 percent and above bracket, but only charge them up to 60 percent or less bracket. MR. GIBLIN: That's correct. CHAIRMAN STRAIN: Well, why are we providing those people with a windfall that we're not providing other people who may need that more? MR. GIBLIN: I don't necessarily agree with it that it's a windfall. It is an affordable housing option in this market that right now does not exist for people in that income level. CHAIRMAN STRAIN: But ifpeople in that income level can get the government to force or obligate developers to provide them with less of a monthly payment that their income would rightfully dictate, that's a good thing. I'm not saying that's wrong. But then why aren't we providing it for the poorer people who could use it more? MR. GIBLIN: Oh, no, we already do. COMMISSIONER SCHIFFER: We are. MR. GIBLIN: The county already does provide the same benefit. Page 37 January 9, 2008 In fact, a greater benefit at the rentals at the low end of the spectrum. CHAIRMAN STRAIN: But we're not saying if you're at the, say, a 50 percent income level -- MR. GIBLIN: Then your rent would be capped at the 40 percent level or the 30 percent level. CHAIRMAN STRAIN: Right. You're saying okay, if you're at the 50 percent income level, you'll pay whatever level rent or home ownership mortgage you can afford at 50 percent. But yet if you're at the 82 percent level, you've only got to pay a 60 percent mortgage. Why is that fair? MR. GIBLIN: Again, that was to combat the concern that the maximum rent allowed by the formula would have been 1,700 or $2,100 a month. And that's not feasible. That's the reason for capping it. CHAIRMAN STRAIN: Well, I understand why it ended that way. But something is inherently wrong with this program that we have to subsidize the ability of some people to be able to generate savings through government programs that regulate the amount of money they've got to pay each month and those people are in a higher bracket than the poorer people who may need it more. I'm -- now I'm getting concerned about that. I think we need the rental issue. I don't disagree with you, but I think you're weighing it to provide a benefit to a class of people, rightfully so, they should derive the benefit, but then everybody should be able to derive that equal benefit, and that's not the way the rest of the program is set up. That's a concern. And Marcy, thank you for -- I guess you kind of brought that out, maybe indirectly, but that's the way I'm looking at it now, and it certainly is a concern. Anybody else? Mr. Schiffer? COMMISSIONER SCHIFFER: Marcy, question on your opening statement. If a project was given this density bonus, the Page 38 January 9, 2008 developer -- you're back in the developer hat -- and you decided to sell that condo, the requirement to rent at that rate would be locked into the condo. So the fact that I as a developer, you as a developer could build these units, you could sell them to companies, but they're still required to stay within the requirement. So your initial statement, I think it's available. I mean, once the density is given in the PUD, the requirements that they have to fulfill to get that density will last until it expires I guess so many years down the road. So no matter who owns the condo, they all have to live with that same requirement. So what the developer would do at that point is he would sell to these different companies who wanted to be able to control who lived in that unit. MS. KRUMBINE: So what you're telling me is that the developer is going to sell all 16 units to the hospital and then the hospital is going to rent it? So then in the PUD and -- and I would need to defer to the planning people here. So in the PUD then it is going to say right from the beginning the intent. Because I still -- see, we had this issue with impact fee deferrals. And I still see that you've got this third party in there. Because when they identify, they're either going to identify that these are going to be rental units or ownership units. And when I sell a unit, to me it's like an investor. So you're selling it -- you're building it to sell it to somebody to rent it. COMMISSIONER SCHIFFER: Right. I mean, I guess could you have partial ownership of a rental community? I don't know. I mean, it's not exactly a condo at that point. Because otherwise we would have to sell at the chart above it. And then the person could -- MS. KRUMBINE: When we deal with the difference between owner occupied and rental, owner occupied is a homestead that, you know, I'm buying it, I'm homesteading it, it's my primary resident. A rental is owned by a developer or a company and then they're all rented out. See, there's this -- again, this third-party thing where we're building, we're selling, and then renting. Page 39 January 9, 2008 COMMISSIONER SCHIFFER: Right. So you don't think -- and Cormac -- MS. KRUMBINE: I'm not sure that this can be covered in this way. And I'll defer to other people. But that's not -- that confuses me. COMMISSIONER SCHIFFER: As a developer, could I build 100 units, sell half to one company, half to another company? MR. GIBLIN: I don't see anything in the code that prohibits that. COMMISSIONER SCHIFFER: And they would rent it locked in at those rates. MR. GIBLIN: Correct. And then -- COMMISSIONER SCHIFFER: If it's -- MR. GIBLIN: -- 10 years from then they could sell it to another company and they would comply with the same restrictions. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Mr. Klatzkow, did you have a comment on that? MR. KLATZKOW: Yeah, if that's what they want to do, and I'm not saying that's a good thing or a bad thing, but I think we need to be explicit in the LDC as to that's allowable and that's what the intention is. Because right now it's not clear to me that that's really where this change is getting at. And I think the code should have some clarity on that issue. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: A couple of things that are nagging at me. One is I don't have the recollection, and maybe I'm out of the loop, but I don't have a recollection that the hospitals ever intended to buy units to sell. They were part of a consortium that was going to work out arrangements to have the people who work for them occupy, whether through rental or whatever. So I don't -- you know, tagging it on to the hospital I don't think is -- and I know government itself is not going to be able to buy them. MS. KRUMBINE: Right. Page 40 January 9, 2008 COMMISSIONER MURRAY: And I do recall when Cormac came to us, his original thesis was for others in -- other industries, so to speak, to come and be able to develop and buy those homes. So I think that's going in the wrong direction, citing the hospitals as such. Now, as far as what Mark brought up about the current financial circumstances and being on the wrong side of a mortgage, we're going to have a bunch of abandonments if that were to manifest. And where does that leave the county, where does that leave this whole issue? It makes no financial sense, it's a lousy business plan to build something that you're going to spend less on. I'm having a hard time seeing any reasoning in this to make sense going forward. But that's my comment. CHAIRMAN STRAIN: Marcy, this page you have in front of us now, the subsidy per unit, now just so I understand, that subsidy is really a developer paid subsidy acquired through the addition of density bonuses; is that right? MS. KRUMBINE: That would be the way to explain it. CHAIRMAN STRAIN: There's no government subsidy being provided. MS. KRUMBINE: No, this is just the difference between what we're capping it at and what they could get for that unit annualized. CHAIRMAN STRAIN: So an employer could really say to the employee, you're getting an additional benefit from working for us if you go to our housing, "X" amount of dollars annually. MS. KRUMBINE: Sure. They could issue a 1099 for that extra mmImum. CHAIRMAN STRAIN: Okay. Well, this is getting more convoluted as we go forward. Cormac, I think your goal has been worthy, but I don't -- I personally don't think we're there yet. You know, when government gets involved in social engineering, they better be doing it in an Page 41 January 9, 2008 unbiased and equitable manner, or they shouldn't be involved in it at all. And my concern here is I don't see the equitableness between what you're trying to do for your range and the same opportunity for the range below you. And I think that now is where my concern lies in this whole program. And I don't have -- I can't offer you a solution here today for that. But that's why I'm at. I don't know where the rest of the planning commission is at. But -- MR. GIBLIN: Yeah, again, just to kind of wrap it up. Our goal here was to allow affordable housing density bonuses to rental income levels that right now are not allowed per the code. Because we have a sector of the market who's clamouring that they need rental housing at those income levels. And we have a client who's willing to build it for them at those income levels. The details may still need to be fleshed out. But Jeff, should we hold this over? MR. KLATZKOW: I think I could work with Cormac to come back with something that has the clarity anyway that he's looking for. Whether or not you think it's good policy could be discussed. But I think it's going to have to be put over to the next cycle. CHAIRMAN STRAIN: I was going to suggest that. I don't think anything needs to be reworked for this cycle, considering we only have two weeks to get it done in. I don't think that in that amount of time you could actually come up with something that may be as viable as it needs to be. I'd much rather see this get more thoroughly thought out and go into a cycle in 2008. And if that's the consensus of this board -- COMMISSIONER MURRAY: If it never came back, it would be okay, too. CHAIRMAN STRAIN: At this point we ought to look for a recommendation to deny changes to LDC Section 1.08.02 and 2.06.03. Page 42 January 9, 2008 COMMISSIONER MURRAY: I'll make that motion. CHAIRMAN STRAIN: Is that appropriate, Mr. Kolflat? (Sic.) MR. KLATZKOW: I don't know if you want to deny it or just-- CHAIRMAN STRAIN: Klatzkow. MR. KLATZKOW: It's a voluntary. Cormac could just pull it at this point in time and just bring it back to the next cycle. CHAIRMAN STRAIN: Well, that would have to be something then up to the applicant, because this is a private submittal. MR. GIBLIN: Okay. CHAIRMAN STRAIN: Okay what? MR. GIBLIN: Do you need to know that answer now, or can we MR. KLA TZKOW: They're voting now. CHAIRMAN STRAIN: I think where you're facing is a recommendation of denial or a voluntarily pulling it for another cycle. MR. GIBLIN: Yeah, we'll go back and tweak it and pull it and come back at a future date. CHAIRMAN STRAIN: Okay. So Mr. Murray, would you withdraw your motion? COMMISSIONER MURRAY: Oh, sure. CHAIRMAN STRAIN: At this point then there is no motion on the table, this whole issue's been withdrawn from this cycle, and we'll expect to see it in a future cycle. Thank you, Mr. Cormac (sic), we appreciate it. Mr. Cormac. Mr. Giblin. Mr. Klatzkow and Mr. Kolflat. Too many names here today. You guys, it's better off with your first names. We're going to take a break at 10:00, if that's okay with Cherie', so we'll still go on with something in the meantime. So next up I think what ought to be the eagle issue. MS. FABACHER: Exactly, Commissioners. We're on summary sheet B, Page 7 in your book. This is amendment to Section 3.05.05, criteria for removal of protected vegetation, or as more lovingly Page 43 January 9, 2008 referred to, the eagle nest amendment. And Barbara Burgeson with engineering and environmental services is here today to make a presentation and answer your comments. MS. BURGESON: For the record, Barbara Burgeson, with engineering and environmental service's. A couple things I want to bring to your attention. One, I know that Steve had presented this to you last time and taken your recommendations and made the changes to the amendment as you see in your package. What you've got in your package is a result of your recommendations to this LDC amendment. Staff has discussed this in light of a number of different issues, but also maybe most critical, that as recently as December 21 st, what I've got here is draft number four from the state. Draft bald eagle management plan, December 21 st didn't even get out for my viewing until after the holidays. Wasn't made public until after the 21st. And there's significant changes to this. Just the first one that may even affect this amendment is that where we're looking at a fine -- initially we looked at 35,000. There were questions about what maximum could be set up as a fine, and Catherine did the research on that, and a $15,000 fine would be the maximum the county could assess as a fine. However, the county could identify after-the-fact fees at any amount. But the state's direction is going from 35,000 and up now. With draft four they're looking at requiring $35,000 for the fee, plus a $50,000 financial assurance bond and additional costs in just doing the permitting the proper way. So they're looking at going substantially higher on a species that they're de-listing, and we're looking at something going lower. My other concern about this is that we are selectively choosing to protect a species that the state is de-listing and not doing any protection on the endangered and threatened species that the county Page 44 January 9, 2008 recognizes and the Endangered and Threatened Species Act recogmzes. So I would recommend that one of two things: I think that the language that's written right now, even though the EAC and the planning commission -- this is the direction from both of those two boards to move forward with this. The written -- the language that you've got in your packet right now would not, for instance, have prevented or stopped the eagle nest tree that was removed in Pine Ridge. It would not protect that from occurring again. I'm concerned that the direction -- the purpose of this amendment is not being fulfilled with the language that's in there right now. And I would like to either attempt to put back in the endangered and listed species language that was in the first draft and potentially defer -- we could put in the maximum fine that we can have -- you had talked about a $5,000 fine because you weren't sure that the 35,000 was allowable. If you're looking at a fine, the $15,000 would be. So just putting all that out. I know it's a lot, especially since what you got in your package was what you directed staff to make as changes. But as a result of something that happened even as recently as just a couple of weeks ago with the state and the significant changes in here, and the fact that the federal comments in here don't even support state's proposed draft management plan, I'm concerned that we're gearing this specifically towards eagle protection when the state and feds don't know exactly where they're going with it right now. And if we want to have listed species protection of a broader nature, we're not saying they can't get permits to remove, but for instance, if you go back to protecting fox squirrel nests and you go back to protecting RCW nests, it just says you have to get agency permits first and we'll issue a permit. So it's -- I don't know if you want to go through a broader discussion, or -- CHAIRMAN STRAIN: Wait a minute. Page 45 January 9, 2008 Ms. Caron, did you have something you wanted to say first? COMMISSIONER CARON: Yeah. So bottom line, Barbara, are you recommending that this be withdrawn to another cycle? MS. BURGESON: I would suggest one of two things: I would suggest that we either go back to the language that you saw in your first hearing, which provides that we are not selectively protecting a de-listed species over threatened and endangered. COMMISSIONER CARON: But if they are threatened and endangered, are they not already protected? And are we not doing this for bald eagles because they have supposedly stepped down in protection? MS. BURGESON: No, initially our concern about bald eagle was that they were also protected by requirement for these permits. And they were not getting them. So we wanted to know that we would be obligated to issue permits so that we could check to make sure that the necessary state and federal permits were also obtained prior to the removal of the trees or vegetation. COMMISSIONER CARON: Yeah, absolutely. MS. BURGESON: So the de-listing of the species really doesn't change in terms of -- actually, the de-listing and the higher protection that they're providing in this new language in the most recent provides greater protection to the nest than they're providing for the -- for instance, the fox squirrel nest or the RCW nest. That if they take down -- right now if somebody comes in and takes down a dead pine tree that happens to have a fox squirrel nest in it, there's nothing in our code that protects -- provides any protection for that, or any negative impact to the property owner for having done that. So I don't know whether or not it makes sense to put this off to the 2008. I mean, our major concern is to -- from this group it came up as a major concern initially, and from the EAC as a response to some recent problems that we were seeing with bald eagle nests. But I think because of so much flux in that draft language, that Page 46 January 9,2008 it's not -- this draft number four is not even due for final comments till the end of April. And so we're looking at potentially not even knowing what that's going to be until after this gets amended. So it may be to everyone's benefit to continue this to follow through with what their final recommendation are going to be here, unless you want to put some, you know, bare minimum protection in here. The only thing that I would suggest that you don't remove is the definition that's in the beginning, and that definition was deleted from the LDC when it was recodified. And we need to put back the protected vegetation definition. And there I would say that we need to expand that to protect any endangered and threatened species as well, so -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRA Y: Two things: One, based on the way you started out would seem to me you're not prepared to go forward, so perhaps withdrawal is the best. But in addition to that, in the definitions on Page 10, vegetation, protected: Any living, woody plant and then parenthetically, tree, shrub or groundcover. And one of the things we asked was we couldn't understand groundcover. And the gentleman said yeah, I guess we should remove that. And here it is. And I wondered, on that basis have you got a good reason why that was put back in, or left in, rather? MS. BURGESON: We replaced the language that was in the original Land Development Code that was removed inadvertently. And the reason that the groundcover is in there, because you can have native groundcover that provides protection and habitat for -- for instance, gopher tortoise burrows for juveniles that are less than a few years old use that -- just native grasses and groundcover for protection for their burrows. And so by not protecting and allowing that that be removed, you're stripping the protection for some species that are Page 47 January 9, 2008 using that groundcover. So we are not adding it new, we're just keeping the language that's always been in the Land Development Code since 1991. COMMISSIONER MURRAY: Well, there may be good reason for it, but my recommendation would be to withdraw it and wait till you've got all your good detail, and then we could put that at the end. MS. BURGESON: Okay. I would recommend that we move forward with at least that definition, because we're lacking the protective vegetation definition that's referenced in the LDC. CHAIRMAN STRAIN: Any other comments from the planning commission? Ms. Caron? COMMISSIONER CARON: Yeah, can someone read to us what exactly was in the old code? Because I don't know that what is here and underlined is exactly the language that was in the old code that got left out. MS. F ABACHER: Actually, I think it was Mr. Murray or Mr. Adelstein that had the earlier yellow book. Because unfortunately I didn't bring mine. COMMISSIONER MURRA Y: I have one. MS. FABACHER: There you go. You want that on the visualizer, maybe? COMMISSIONER MURRAY: Yeah, sure. CHAIRMAN STRAIN: It would be under definitions-- COMMISSIONER SCHIFFER: Page 10. CHAIRMAN STRAIN: -- Section 3.05.05. So that may be a different page in that book. COMMISSIONER SCHIFFER: In the old book it's 10. CHAIRMAN STRAIN: It's Page 10 in the old book as well. MS. BURGESON: Even in the code here, what you've got is everything is underlined, because it was completely deleted from the code and the recodification. Page 48 January 9, 2008 COMMISSIONER CARON: Yeah, understood. MS. BURGESON: But from my recollection, the definition that was in the code since 1991 would be vegetation, protected: Any living, woody plant, tree or shrub or groundcover. And then period. The nuisance invasive vines and nuisance invasive groundcover are not protected vegetation is new language. Because we didn't want to have vegetation that might be native that's a nuisance and negative. CHAIRMAN STRAIN: Barbara, whose book is that, first of all? Bob, would you mind if she wrote on that book? COMMISSIONER MURRAY: No, go right ahead. CHAIRMAN STRAIN: Would you scratch that definition out and put in only for us to see what was in the old code? I can't figure out what you're trying to say again, and we seem to have this problem repeatedly with different items. COMMISSIONER CARON: That's exactly where I'm going. I want to know exactly what was in the old code. MS. BURGESON: I cannot guarantee you that that's exactly as it is in the old code without having it with me, but that's as I recall. CHAIRMAN STRAIN: Well-- MS. BURGESON: I'd be happy to go get a Land Development Code for you and bring that back to you before -- CHAIRMAN STRAIN: I have one in my -- I think I have one in my truck. During break I can run down and get it and come back. MS. FABACHER: The old one? COMMISSIONER CARON: Yes. MS. F ABACHER: I could go ask. CHAIRMAN STRAIN: No, I think there's one in my truck. I'll run out and get it on break and come back with it. Because when we're told that this is the old language, we shouldn't be told it is when it isn't. And it apparently is not. And now we're finding it out, thanks to Ms. Caron's questioning. With the permission of the board, why don't we take a break and Page 49 January 9, 2008 we'll come back at 10:15, that will give me time to get back. I had to go way out in the boondocks to park. So let's take a break right now and come back at 10:15. MS. BURGESON: You don't need to do that. I will call staff and have them read that to me over the phone. CHAIRMAN STRAIN: Well, reading it to you and having it on a visual is a different story. (Recess.) CHAIRMAN STRAIN: Okay, welcome back from the break. We left off talking about the definition that appears on Page 10 of our text. And Ms. Caron? COMMISSIONER CARON: Okay, now we have it up here, so we know that protected vegetation is any living, woody plant (tree, shrub or groundcover), period. I'm assuming that whatever 3.7 through 3.14 will also -- are either incorporated already or will be incorporated. Whatever references those reference, you need to make that reference again with new numbers and whatever. Okay. I don't know how much more anybody wants to bother to discuss this. I think I'm ready to make a motion. And I would make the motion that we add in the definition of protected vegetation and that we withdraw the rest of this for a future cycle. Because I don't think that it does what we intended for it to do, which is to protect bald eagle nests, whether they are in living or dead trees. And I think that the language needs to be worked on. I think a lot of language got taken out of this that I'm not sure was the intent of the CCPC. But I think a reworking of this would be a good thing. And if you can bring it back in the next cycle clearer and more concise, I think that would be the wise course of action. CHAIRMAN STRAIN: You started out -- Ms. Caron started out her comment by saying that she would -- if she were to make a motion, this would be it. Which I'm assuming right now there's not a Page 50 January 9, 2008 motion on the table, which would allow for some discussion. And before we go too much further, based on this definition, vegetation protected, any living, woody plant, tree, shrub or groundcover, that is so broad that everything in Collier County is protected, period. It doesn't say subject to divisions or anything else. And I think possibly this was intended to be left out because of its lack of clarity in the transfer of the code. And I'd rather do this a lot cleaner, bring the whole thing back during Cycle 2, including any definition that needs to be added where we can be more refined and clear on what exactly is protected and what isn't protected. Because certainly not any living or woody plant is protected in Collier County. Mr. Murray? COMMISSIONER MURRAY: Yeah, adding to that, when we instructed the last time, we talked about the groundcover, and now Barbara has indicated that the groundcover relationship was associated with some young turtles. But this was intended to reference bald eagles. So I know that this is too broad for the intent that we had, so I could not support that at all. You basically could do nothing on this property . CHAIRMAN STRAIN: Mr. Vigliotti, did you have a-- COMMISSIONER VIGLIOTTI: No. COMMISSIONER SCHIFFER: I have one. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, and from my notes on the original meeting, I thought the intent in P was to -- we were going to take those lower paragraphs, make them parenthesis one and renumber. I'm not sure why you took the whole thing out. I don't recall, and I usually do "X" out stuff that was removed, why you didn't just, you know, renumber P. Maybe there was some comments within that. But I think the focus was is if we're protecting bald eagles, then Page 51 January 9, 2008 say it and get rid of the other stuff. And then to reclassify. But why we took out the stuff about single-family lots and everything else, which is the intent, I'm not sure. MS. BURGESON: Okay. I can only say that I was not at that meeting and staff that did attend that meeting felt that was your direction. CHAIRMAN STRAIN: Well, I think the motion to continue is a good idea. I would ask that if we make a motion, let's get -- before we waste time on a motion that isn't seconded, is it the intent of the board to continue the whole thing in terms of synopsis? COMMISSIONER SCHIFFER: The whole thing. CHAIRMAN STRAIN: Well, I think staff can -- now, Mr. Klatzkow, staff can withdraw this voluntarily? MR. KLATZKOW: Absolutely. CHAIRMAN STRAIN: Barbara, do you wish to withdraw it voluntarily, or do you wish us to have to render an opinion on it? MS. BURGESON: I would say that since the direction -- this was not staffs amendment, that since it was both the EAC and the planning commission's direction, that I would prefer to have your direction to withdraw it. Although I fully support that. CHAIRMAN STRAIN: Okay. How is the consensus of this board? Is there a motion to that effect, that we recommend staff to withdraw this particular item? COMMISSIONER CARON: I'll -- COMMISSIONER ADELSTEIN: So moved. COMMISSIONER CARON: -- make that motion. CHAIRMAN STRAIN: Motion made by Ms. Caron, seconded by Mr. Adelstein. Any discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. Page 52 January 9,2008 CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Thank you very much. We will see you in 2008. COMMISSIONER SCHIFFER: We are. CHAIRMAN STRAIN: Oh, yeah. Well, sometime in 2008. COMMISSIONER ADELSTEIN: That's all right. CHAIRMAN STRAIN: Okay, I think the next one up will be the watershed management plans on Page 15; is that correct, Catherine? MS. F ABACHER: Correct, Commissioner. And C on your summary sheet. And we have Robert Wiley here to answer any questions you might have and discuss the changes that you requested that were made. CHAIRMAN STRAIN: Mr. Wiley, good morning. MR. WILEY: Good morning, sir. For the record, Robert Wiley with the engineering and environmental services department. We presented this to you once before. You had a few comments. We have also since our last meeting presented this also to DSAC. They provided some direction, some comments, some of which we could agree and some of which we could not agree. So we have brought the revised document back to you and hopefully we can quickly go through the issues that you asked us to address. Let me start offby going to one point which we didn't catch until yesterday. And that was part of your direction -- it would actually be on Page 18 of your package. But we are looking at that last point F: Prior to the issuance of a final development order, that being obtain all the necessary state and federal permits. You had asked us to go back and check on that, and so we did Page 53 January 9,2008 that. It was like yesterday when I finally caught that one, that we didn't scratch it out. But you are correct, it is covered under section 10 through each of the different issues. So we can strike this thing out, because we don't need to repeat that. I did not know it was even in section 10. I was trying to make sure it was covered. But since it's there, we don't need to repeat it. CHAIRMAN STRAIN: Okay, let's start with Page 15. And this section goes on. We'll just ask general questions on the whole section. Any comments, questions from the planning commission? Mr. Schiffer? COMMISSIONER SCHIFFER: Bob, do we have a good definition of impervious? For example, some concrete now is impervious. Would that be allowed or -- MR. WILEY: Well, concrete is impervious. I think you're saying . . some IS now pervIOUS. COMMISSIONER SCHIFFER: I'm sorry, pervious, yeah. MR. WILEY: A particular part is called pervious concrete. And by its own definition, it has removed itself from being impervious. COMMISSIONER SCHIFFER: So you would accept that? MR. WILEY: Sure, yeah. We encourage people to use that for sidewalks. But we don't encourage it for parking lots. COMMISSIONER SCHIFFER: Then my only concern is that in the reconfigura -- or the -- when you do the renovation, what you're saying is that if you do a renovation to your project greater than 50 percent of the assessed value -- and I assume it's the assessed value of the building, not the building and the land. MR. WILEY : You would remove the land. But in addition to the building, if there are other improvements that are listed there through the property appraiser's, they would be included. But you would delete the land value. COMMISSIONER SCHIFFER: So that theoretically, if somebody went in and did a really nice remodeling and did not Page 54 January 9, 2008 increase the footprint of their property, you would hold their feet to this fire; is that right? Greater than 50 percent. MR. WILEY: That's the intention. Unless there's something that they propose to bring in that shows that they are addressing a known concern, if one exists, and they are not increasing the amount of runoff that's going to be leaving the site. So by your statements, I think you're addressing if they propose to put in a pervious type of pavement or something, would that offset. We would look at all that issue. COMMISSIONER SCHIFFER: But actually, my concern is that the 50 percent assessed value, the way this is written, if I went through and decided to gold plate, gold guild my walls, you would make me go outside and do storm drainage. MR. WILEY: Very likely, yes, sir. And we had that discussion at our last meeting from the standpoint of picking up the redevelopment issues so they do come into compliance with our water quantity and quality criteria we are trying to achieve. COMMISSIONER SCHIFFER: I mean, I understand that if you're affecting the footprint of the building, adding more, you know, impervious -- and I guess maybe can we run through the comments from the DSAC committee? Because I think they're kind of -- some of them are on that same point. MR. WILEY: Yes, sir. CHAIRMAN STRAIN: I think it's one of -- MS. FABACHER: Excuse me, I think if you look on the back at summary sheet G, we have listed -- COMMISSIONER SCHIFFER: That's what I have. MS. FABACHER: Are you looking at that? Okay, thank you. COMMISSIONER SCHIFFER: That's exactly what I'm looking at. MS. FABACHER: I just wanted to let you know that was there. Page 55 January 9, 2008 COMMISSIONER SCHIFFER: Okay. I guess number one, give us your -- go through and give us your comment on it. Because some of it seemed to make sense. MR. WILEY: Well, the issue that came up with comment number one says from 3.07.02.A, remove. And then the quotation was, reconfiguration of or addition to the building footprint. And then they were going to change it to make it say a, quote, reconfiguration of or addition to on-site impervious area. And that's really what we were driving at was the amount of impervious area, the overall footprint. But the question had come up that if you're simply changing a building which has a large patio, I think was discussed in here, the DSAC discussed it, you're just enclosing a patio. And that becomes part of your building footprint. You know, that's in -- you weren't changing impervious area is what we were trying to get at. So we agreed with them to change the overall impervious area, not just changing a portion of the building, but you're really not creating a runoff. COMMISSIONER SCHIFFER: Okay. So you-- MR. WILEY: But we agreed with the impervious area reconfiguration. COMMISSIONER SCHIFFER: So we can include that in the -- MR. WILEY: That has already been included in the revised document. COMMISSIONER SCHIFFER: Oh, it has? I'm sorry. Okay, the second one. MR. WILEY: The second one was -- CHAIRMAN STRAIN: Brad, before you leave that first one, I'm sorry, I'm not following this. 3.07.02.A says remove reconfiguration of or addition to the building footprint. Yet in the yellow highlighted under number two it's in as, or reconfiguration of the building footprint. Page 56 January 9, 2008 COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: How does that -- if you concurred that-- and it says and make it reconfiguration of or addition to on-site impervious areas. Basically taking out the addition of the building footprint as a factor and leaving it strictly as an impervious area, because the building footprint change would obviously be an impervious area. So that the only factor used to calculate is the 50 percent threshold of what it cost to the changes to the impervious area. So what that means is under Brad's application, if you gold-lined all the walls on the inside of the building and it was 50 percent more than the value of the building, it wouldn't trigger a rework of the site because it's not 50 percent of the cost of an increase in the impervious area. Is that -- I'm trying to under -- I don't know if what DSAC said and you concurred to is what came out in the yellow highlighted section on Page 16. Because it looks like it's still in. But yet staff says they concur with DSAC. MS. F ABACHER: Excuse me. Commissioner, I can kind of explain. The first half of it, it is removed for the calculations based on the increase of the impervious area. When you began the sentence in the middle there, redevelopment shall also be considered, that has to do with assessed value. And I think Robert's going to cover that. Because DSAC wanted the assessed value removed altogether and staff did not agree with that. So there's a distinction between these two valuations. CHAIRMAN STRAIN: How do you -- MS. F ABACHER: I'm going to let Robert finish, because now I got in trouble. CHAIRMAN STRAIN: Okay, but here's what I'm reading it says. In the DSAC recommendation it says, reconfiguration of or addition to on-site impervious area, the only factor used to calculate 50 percent threshold. And staff concurs. Page 57 January 9, 2008 MS. F ABACHER: No, staff concurred with removing it from the calculation of the area, not to distinguish between footprint and total . . ImpervIOus area. But when you get to the basis of calculating it based on assessed value or replacement value, I forget which value we use, under redevelopment, that's another method of estimation, and staff did not remove it from there for the reasons that Commissioner Schiffer brought up, that if he wants to guild his walls, then that would also trip. See, that's the -- CHAIRMAN STRAIN: But he wasn't bringing it up as a reason why we should include it. I think he was bringing it up as a reason why, why would you want to include it-- MS. F ABACHER: I understand, I understand. CHAIRMAN STRAIN: You're interrupting me. MS. F ABACHER: I'm sorry. CHAIRMAN STRAIN: Why would you want to include it, because interior improvements don't affect impervious area, and watershed is affected by impervious area. Now, if DSAC had meant that to be left in, or out, I think -- I mean, I know DSAC is a business type board. And I don't necessarily always favor what business wants. But in this particular case, gilding gold walls on the inside of a building and say it impacts the watershed is -- might be something they would question. So I'm wondering where they're really trying to go with it. Ms. Caron? COMMISSIONER CARON: But when we're talking about redevelopment, we're trying to bring these people up to code. So if for example you've got the money to guild your walls in gold but you're not going to correct a watershed management issue, I think that's the wrong way to go with redevelopment. CHAIRMAN STRAIN: No, I wasn't even arguing that point. I was just trying to understand what DSAC was trying to say and what Page 58 January 9,2008 staff was concurring to, because I can't imagine DSAC wouldn't have addressed the issue Mr. Schiffer just brought up. COMMISSIONER SCHIFFER: But the second question in the DSAC list which we're getting to is exactly that. But Donna, one thing is that the problem with that is if that I'm doing an expensive renovation on the inside of my house, why do I have to go to the expense of proving my site drainage? In other words, I mayor may not even have a problem. I mean, if I have a problem, maybe this is good. If I don't have a problem, I just spent money to prove to the county that I don't. But anyway, the DSAC, the second one kind of goes into that comment on the -- CHAIRMAN STRAIN: Catherine, are you finished with any comments -- MS. F ABACHER: Yes, sir. CHAIRMAN STRAIN: -- on the first one? MS. F ABACHER: Yes, sir. CHAIRMAN STRAIN: Okay, everybody else on the first one? (No response.) CHAIRMAN STRAIN: Let's go to the second one then, Brad. Go right ahead. COMMISSIONER SCHIFFER: Robert, and it's exactly the point Mark was -- the clause Mark was discussing. What they're saying is get rid of that. What is the advantage of anything that has to do with non site impervious surfaces? I mean -- MR. WILEY: Well, the advantage comes into the situation where you have in particular a commercial site built years ago and it is property line to property line, pavement or roof and they want to come in and redevelopment. There is no change possible to increase your impervious area by 50 percent because it's 100 percent already. They have no stormwater system. They're coming in, they will tear down Page 59 January 9, 2008 the building, reconfigure their parking lot, what they want it do with it, yet they do not increase their impervious area. You can't. It is solid . . ImpervIOUS. We want to pick that redevelopment up and have them come in and put a stormwater management system in. That's what we're trying to get to. If we can improve the text to clarify that, I would greatly appreciate your help in this matter. COMMISSIONER SCHIFFER: Well, then maybe -- I mean, the commercial is a good example, that if they're going to renovate something extensive, they shouldn't count their existing. And if they do go above that magic 50 percent, as in other parts of the code, they should totally review the whole thing. But this covers single-family also, or am I wrong in that discussion? When I said gilding my house, am I exempted from this? MR. WILEY: Well, this would cover everybody who is required to have a water management system. In the case of a platted subdivision where single-family is not required to have a separate water management system, it would not apply. COMMISSIONER SCHIFFER: So maybe it's not as -- it's not what I thought. Okay. Let's go on three. What was -- and I think you're right, I mean, the example you gave on commercial that just because they built an old shopping center, they're totally renovating it past 50 percent of its value, they should not be grandfathered in on the stormwater regulations. MR. WILEY: I'm very willing to rewrite this if it brings clarity, because I appreciate the thought that you guys put into this. COMMISSIONER SCHIFFER: Sometimes we just bring confusion, so I think that's what happened there. Number three, the 150 percent. And I mean, what's your thoughts on that? MR. WILEY: Well, in this particular situation the thought came Page 60 January 9, 2008 up, if there is an exiting development and they say that they cannot provide 150 percent, but they could come up with 95, 100 percent for water quality, shouldn't we be able to allow them to do that? And really, the question would come down to a situation to where the applicant would come to the county engineer and begin to try and negotiate with the county engineer just how possible is it to do this 150 percent. And the general rule of thumb is that you only do what you have to do, and if you have an opportunity to produce less than that, we know we'll be inundated with requests to do less than that. So the county engineer did not want to get in that position to be facing constant requests to be below the minimum. CHAIRMAN STRAIN: What is south Florida's minimum right now? MR. WILEY: The same as ours. You have to do the one inch or two and a half times percent impervious. And then what they are in the process of doing through not the rule-making process, but through some direction or recommendation, is when you know you're going to be discharging into a system that drains into OFW, outstanding Florida waters, then they request that you produce 150 percent of water quality. We're just simply making a requirement because we know that just about everywhere we have eventually gets into either a water body that is potentially impaired or is already at OFW, by the way the canals discharge. CHAIRMAN STRAIN: I did run this by at least three separate engineers, some with major companies in the county, because I saw this as a potential problem if it required expansive new water management lakes and destruction of vegetation to get there. None of them had any problem with them. Most of them said they were already abiding by it anyway, so -- MR. WILEY: That's correct. CHAIRMAN STRAIN: I'm not sure why we need to change Page 61 January 9, 2008 anything that staffhas recommended here in that regard. Mr. Kolflat? Mr. Klatzkow, I'm sorry. COMMISSIONER KOLFLA T: I have a problem with this negotiation of 150 percent. You said you could negotiate down 80 percent or 90 percent or 110 percent. And we see petitions come before us and they talk about roadway variations and deviations every time they present it, they say well, we ought to cut it down a little bit and the response is well, we did it the last time so we'll have to do it agam. Well, what is the sense in having something limited to 150 percent if we're just going to open it up and negotiate and let that establish what the base is? MR. WILEY: That's the same direction we came from, which is why we did not agree with it. So we do not propose to allow it to be less than 150. COMMISSIONER KOLFLA T: I misunderstood. I thought you were supporting that. MR. WILEY: No, sir, we were not supporting that. COMMISSIONER KOLFLAT: Thank you. COMMISSIONER SCHIFFER: And then the last one you agree with, it's in the -- it's already incorporated. My only last question is that in the 50 percent, do you have a time frame or -- in other words, in building codes we discuss 50 percent. We kind of, you know, do that within a certain time frame to, you know, prevent the -- you know, the 40 percent, 40 percent, 20 percent remodeling. MR. WILEY: The time frame is not specified within here. If you would like us to quickly make that addition, I would support it. I will tell you that what we're doing with our flood ordinance is coming up with what's called cumulative improvements. And that is not approved by the Board of County Commissioners yet, but we're going to be bringing it to them, where you add up the sum of the Page 62 January 9,2008 improvements over a five-year window. Now, that's where we're going with the floodplain issue for flood insurance purposes. That's not official yet, but we're heading that way with ordinance revision. If you want something similar to that, we could incorporate it, but it is not here, so here every year someone could come with 49 percent and they could do the same thing. COMMISSIONER SCHIFFER: They way you have it, every month somebody could come in with this. MR. WILEY: Technically that's correct, too. COMMISSIONER SCHIFFER: So I think that the cumulative language, which I've seen, is good language. So I think that would be smart to insert that. COMMISSIONER MURRAY: Would that be -- CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Would that be retroactive, or is that intended to go forward? MR. WILEY: That would be from the point of adoption forward. COMMISSIONER MURRAY: Okay. All right. MR. WILEY: We really have no way of making -- COMMISSIONER MURRAY: I was going to say. MR. WILEY: -- keeping records on -- COMMISSIONER MURRAY: That would be a nightmare, I think. CHAIRMAN STRAIN: So the suggestion is to add cumulative language to defining the assessed value of improvements; is that -- MR. WILEY: We could go right to 3.07.02.A.2, the one that's highlighted there for you, and just at the end of that statement simply indicate in there that the 50 percent value is a cumulative value over a period of, and you tell me how many years you want. CHAIRMAN STRAIN: Any ideas? Five years sound reasonable? COMMISSIONER SCHIFFER: Well, let's match the floodplain, Page 63 January 9, 2008 because that's -- COMMISSIONER CARON: Yeah. CHAIRMAN STRAIN: What's floodplain? Five? COMMISSIONER SCHIFFER: Five years. CHAIRMAN STRAIN: Let's just do it five years. MR. WILEY: It will be. It is not yet, but that's the direction we are heading in. CHAIRMAN STRAIN: Okay, well, let's recommend this as five. MR. WILEY: So we'll say the 50 percent increase over the assessed value is cumulative over a five-year window? CHAIRMAN STRAIN: Right. Any other questions or comments from the planning commission? (No response.) CHAIRMAN STRAIN: Robert, I've got a couple more. Page 16, Item C, and it occurs on item -- on the top of Page 17 as well on the same subsection. It says floodplain storage compensation calculation shall be provided on a case-by-case basis, as determined by staff. Now, I know staffs always put under the gun if they have to determine something. Because sometimes they could determine it and sometimes they may determine it's not. And that puts you guys in a awkward position. Is there any criteria for you all to make that determination? MR. WILEY: That's where we had come up with this draft map to show you, just -- we can put it back on the visualizer, but it's the same one I showed you last month. CHAIRMAN STRAIN: Okay -- no, no, I'm not -- if you have a way to make the determination, then I think we ought to reference that as the way you make your determination, so you guys are not being looked at as doing something arbitrary. MR. WILEY: Okay. CHAIRMAN STRAIN: That's all I'm suggesting. Page 64 January 9, 2008 Does that seem to be a reasonable suggestion to everybody? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: So that's an exhibit currently, right? MR. WILEY: That is a draft map to show you the intention behind it. It really was not proposed as a specific exhibit. We could do that, if you so chose. The one thing that I want to bring up is the way the map was prepared, it's using what's in our GIS. And it is for hydro periods of two months or greater, plus all the AE, VE and A flood zones, plus little bubble areas off of our areas of known flooding problems. But I could go point out some spots right now that I know go under water every time we have a really heavy rain event that would not be colored there. So that's why we really didn't want to make this the only boundary. But this is to show the intention that we're not trying to get every inch of property but the areas that we just happen to know flood. And basically it's -- we wanted to leave it to the standpoint of staffs decision based upon our best knowledge that we have and experience out there. It's not intended to be arbitrary. And I really appreciate, if we want to go with this one, it may remove some areas that I would like to have it. But the percentage of that would be very low compared to what it would cover. CHAIRMAN STRAIN: How about if we were to word something to the effect that as determined by staff based on historic water level documentation or something like that. And that way it would cover this map or any other ability that you have to pull something up that says this area has been inundated and we need to look at it more closely. MR. WILEY: We could do that. Let me also remind you, though, one of the issues we wanted to have a little bit of freedom to not require the compensation is along the coastline where it is through the coastal flooding, we really did not Page 65 January 9, 2008 -- if we know that there's no rainfall induced flooding, we did not want to have to mandate that a property try to hold up the Gulf of Mexico. So that was another reason for the case-by-case situation here. Because some places flood only from coastal surge. Others flood because it's the freshwater trying to get out to the Gulf, even in situations where the VE zone or AE zone may be higher. CHAIRMAN STRAIN: Well, if we were to kind of leave the general concept with you that there ought to be some determination by staff based on historic water data information. MR. WILEY: Okay. CHAIRMAN STRAIN: And then if you need to refine that a bit before it goes to the BCC, I'd be comfortable with at least leaving the concept in your hands so that there's some determinate in there so staffs not making arbitrary -- put into an arbitrary position. MR. WILEY: If we look at that concept right at the very last line on Page 16 where it says on a case-by-case basis, then should we put in there based upon historical flooding information, or -- CHAIRMAN STRAIN: That's fine. MR. WILEY: -- however you want to word it. That way it gives us the case-by-case situation, but that's something to base it upon. CHAIRMAN STRAIN: Well, if you say historical flooding information, that provides the latitude you would need to cull it in or cull it out. And I think that at least gives you some determination factor to go with. MR. WILEY: Okay. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I was just going to say, I think you can pretty much use the headline, though, on your draft map there and say based on historical flood and drainage problem areas, and that will allow you to incorporate or not, and obviously exclude areas in the coastal area that are just -- CHAIRMAN STRAIN: And provides good reason for you to ask Page 66 January 9, 2008 for it, too. COMMISSIONER CARON: Right. MR. WILEY: Okay, so if I say based upon historical flooding and drainage problem area information? Does that seem to -- that way it covers everything. CHAIRMAN STRAIN: That's fine. COMMISSIONER CARON: Yes. MR. WILEY: And then we would repeat that same statement up on the top of Page 17, that second similar statement up there. CHAIRMAN STRAIN: Right. On Page 18, Item D, if you go to the sixth line down it starts with the word portion. And it says, portion of the natural wetland, flowway or slough, at least one foot lower than the ground at the edge of the natural wetland. Would you want to say at least on average one foot lower? Because I'm worried that you're going to see some undulations like you typically do, and if you've got an area that isn't consistently one foot lower for a certain -- someone might argue that you don't have that right. So why don't you say at least on average one foot lower, and that covers you. MR. WILEY: Very good. I'll add that in there. CHAIRMAN STRAIN: And then further down at the last line, it talks about compensation for providing the same conveyance capacity lost by the direct impact. Now, I'm picturing this as being a structure or something that's built in a flowway. They have a right, let's say, to build it -- somehow they get through the permit process and they come in with their dirt and they mound it up. Now, they've actually reduced the conveyance capacity possibly of that flowway then. Well, how would they be compensated for that loss capacity? What was the method of compensation they would be able to look at? MR. WILEY: Similar situation has occurred in the past to where Page 67 January 9, 2008 you -- depending upon the slough to flow or the sheetflow condition or the flowway, it's pure natural ground sheet flow. But if you fill in and then you are also within your property boundaries able to excavate down from the ground surface to essentially the water table elevation, or even probably below it, so you create a channelized portion to replace what you displaced, you still have the same conveyance capacity. CHAIRMAN STRAIN: I thought that's what you were going to say, and that's how I though that could be increased. So what that means, though, is you're encouraging then, almost requiring more destruction of natural habitat to create the loss of the conveyance which is trying to restore the natural habitat. MR. WILEY: You could potentially do that, it's correct. So you would evaluate at that point, is the original loss worth requiring the additional. And that would all be part of the evaluation we put through. CHAIRMAN STRAIN: Okay, but you can't evaluate it under this language. It's shall require. So you don't have a choice of evaluating it, you're got to require it, no matter how negative the outcome, isn't it? MR. WILEY: I guess what I was saying was you'd evaluate the original encroachment in that required you to provide the alternative conveyance replacement. CHAIRMAN STRAIN: And if the original encroachment were to destroy too much of the natural habitat, then they would be disallowed MR. WILEY: If the original encroachment, which would require the replacement conveyance -- it's all considered as impact from that original encroachment. So if that's too great then you would say no, that's not acceptable, and you would have to work out the reduction or the mitigation, whatever it would take. CHAIRMAN STRAIN: Okay. MR. WILEY: So you wouldn't just evaluate the footprint of the Page 68 January 9, 2008 encroachment alone, but the encroachment plus whatever else it took to replace the conveyance. So it expands the impact from that original encroachment. CHAIRMAN STRAIN: Which is -- that's where I'm trying to go. So let's take a home on a two and a half acre tract in Golden Gate Estates. They come in and build a 5,000 square foot home with a driveway, which takes up more elevated surface, so they're actually impeding the conveyance in a number of ways. The driveway leads out to a street, the street's already impeded the conveyance, so you've got swales along the street to redirect the water. They would have to make sure their property still channels the water, say it's in the south direction out to that street, but the displacement that their home and their driveway and their backyard and their septic tank and their garage make on that property would require them to go in and cut the property down to maintain the volume that may have been there for the original conveyance. Is that a reasonable suggestion? MR. WILEY: That is correct. Or the alternative is to go to a nearby property that they would acquire to construct that same conveyance, capacity, storage capacity at the same elevation within the same drainage area so that the net impact -- generally we don't see that kind of a situation be limited just to one point but it's a broad flow. And so we looked at that very seriously with the Estates situation, the 75-foot wide lots. What we've observed is fill pads create a dike. CHAIRMAN STRAIN: Right. MR. WILEY: They touch each other. And we're trying to avoid that. So we're trying to make sure that there is the ability for water to pass through post-construction. CHAIRMAN STRAIN: But see, that's kind of -- I was being nice by using a two and a half acre lot. MR. WILEY: Right. Page 69 January 9, 2008 CHAIRMAN STRAIN: I know there's way too many acre and a quarters out there. But since you brought it up -- MR. WILEY: Okay. CHAIRMAN STRAIN: You get a lot of these acre and a quarters, now you're saying basically to restore the conveyance, the flow-through conveyance, a person on an acre and a quarter would have to build a long, skinny house and cut out the property on both sides of it to maintain the volume that was originally there before the house was placed within that narrow acre and a quarter lot. Or they'd have to buy the lots on either side and create the additional volume on those lots. Is that what you're indicating? MR. WILEY: You could also consider underneath your fill pad on the side of your house, running a culverted system. It still allows the conveyance to pass through. CHAIRMAN STRAIN: Underneath your fill pad? MR. WILEY: But, you know -- side slopes. Not under your house itself, side slopes. So you've got from your -- CHAIRMAN STRAIN: Well, you'd still allow the conveyance to flow through, but how do you handle the volume? Because this is -- MR. WILEY: The volume is the tough issue with the smaller lots. But they are 660 feet deep and there's quite a bit of long, linear space there. And yes, it would potentially require someone to go in and clear a lot more of the lot, just remove that fill volume. That is correct. CHAIRMAN STRAIN: We have a restriction on the amount of clearing you can do on lots in the Estates, so boy, this really backs up. Has anybody looks at how this all backs up? MR. WILEY: Yes, we have. That's not looking good for some people, that's correct. There are some situations where the property is already at the water table elevation because it's a cypress head, or even below. In those situations the use of a fill pad would essentially be eliminated Page 70 January 9,2008 for all except the septic tank and the driveway. CHAIRMAN STRAIN: So they'd have to do a raised structure system on stilts and the ground floor would have to be natural grade. MR. WILEY: Well-- CHAIRMAN STRAIN: Because they couldn't even park underneath to meet the criteria you're talking about. MR. WILEY: That's their driveway I'm talking about, right, yeah. You're correct. It gets real dicey for some of those lots which are already floodplain storage capacity. And we're trying to prevent people from producing it. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: So at some point people with acre and a quarter, 1.14 lots either have to buy a piece of property next door or we're telling them in another way that they can't build on an acre and a quarter anymore. Even though it's okay to build on an acre and a quarter, we're saying in another part that they can't do it, they have to have a wider lot. MR. WILEY: No, we're telling them that they would not be able to build it under the current practice of just plain going in and filling. You have to create an elevated structure so you do not fill on the property . COMMISSIONER VIGLIOTTI: Or build a house 12 by 150. CHAIRMAN STRAIN: But, see, the problem is, the alternative is not acceptable either. What's happening out in Golden Gate Estates, as Bob indicated, a lot of these little lots, especially when they got -- they weren't ever supposed to be acre and a quarter. Two and a half was supposed -- we stopped that -- after the mistake was realized, it was stopped back in '74. Unfortunately there are a lot of unscrupulous people who sold those little chunks off and now they're being built on because they were legal at one time. And they're blocking the flow and that's causing floods to -- that's why Golden Gate was inundated a couple times with high water, high standing water. I mean, it's a Page 71 January 9,2008 problem either way you look at it. COMMISSIONER VIGLIOTTI: But is this the answer? CHAIRMAN STRAIN: Well, I mean-- COMMISSIONER VIGLIOTTI: I'm not convinced it is. CHAIRMAN STRAIN: -- this may accomplish the removal of those acre and a quarter lots that were attempted to remove since 1974 anyway. MR. WILEY: Well, we're not attempting to-- CHAIRMAN STRAIN: I know you're not. MR. WILEY: -- remove those lots through an underhanded approach, we're trying to address the continuing increase in flooding potential. Because things are being filled up out there without consideration being given for the overall floodplain and the sheet flow that used to occur. So that's why we're saying, if you're going to do this, there's some other considerations you're going to have to take in mind so that you don't have a negative impact to everybody else that lives out there. COMMISSIONER SCHIFFER: Mark, and -- CHAIRMAN STRAIN: Thank you. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, Bob, isn't this a subdivision? So by your prior description, it doesn't apply. MR. WILEY: Well, but what you're talking about is the issue of the 50 percent rule and the stormwater system. This particular situation here does apply as far as affecting storage. It's not -- COMMISSIONER SCHIFFER: Well, how do I know that in this? I mean, where in the document does it show that one applies to subdivisions and one doesn't? CHAIRMAN STRAIN: Wait a minute, Bob, earlier when you responded to Brad's question, I understood what you said. I thought you indicated it wouldn't apply to a single-family lot, but that's on a Page 72 January 9, 2008 system that was master plan drainage system. MR. WILEY: That's correct. CHAIRMAN STRAIN: Golden Gate doesn't have a master plan drainage system. COMMISSIONER SCHIFFER: Where is that clear then, that -- CHAIRMAN STRAIN: I mean, for example, your big projects, when they come in like, well, Olde Cypress being one, it's a huge DRI PUD. It's got a master plan drainage system that's put into effect to show everything flows. So the individual single-family lots in there don't fall under this criteria. COMMISSIONER SCHIFFER: But my concern is that it's not clear in this -- who does or who doesn't. The applicability section of it isn't that clear. And so essentially we're back to my gilded house that that only -- I mean, Golden Gate is obviously a subdivision, obviously was done without water management or crude water management. CHAIRMAN STRAIN: That's a polite way of putting it. COMMISSIONER SCHIFFER: Yeah. But Bob, where in this does it show that the house in Golden Gate is different than a house in a perfectly planned subdivision? MR. WILEY: Well, if you look, we're again we're in that subsection D, correct? That's the -- CHAIRMAN STRAIN: Yes. MR. WILEY: -- one we're talking about. Look how it -- all development located within areas identified on figures -- this is subsection D, all development located within areas identified on figures 3.07.02-1. That's the figure that you see on Page 17. Now, that does not incorporate huge amounts of Collier County, but it does incorporate some areas of Collier County that would include portions of Golden Gate Estates. But it generally is not the Golden Gate Estates issue you have here, but some parts of it do clip m, so -- Page 73 January 9, 2008 CHAIRMAN STRAIN: And that's your flowways. Isn't this where you -- MR. WILEY: These are our flowways that we do not want blocked. CHAIRMAN STRAIN: Mr. Vigliotti? Oh, I'm sorry, go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: So that's clear in that, but how about up in the -- you know, 07.02.A. How do we know -- it says all new development and redevelopment projects. So essentially you're not referring to individual -- well, that's still confusing, Bob. I mean, I'm -- MR. WILEY: Okay, let's try to remove some of the confusion here. Under 3.07.02.A, this deals with the provision for water quality volume, okay? So if you are required to have a stormwater management system in your subdivision, it's already been designed. If you're in a large old platted subdivision such as Golden Gate Estates and there is no design water management system, we're not going to tell you you have to provide 150 percent water quality, because there is none required at that point. Now, we then were talking over in subsection D where we have a specified map with areas identified on it, and those are your primary flowways and sloughs of concern through Collier County that we do not want to see development come in and plug up. So that's where you have this conveyance system that's required for you to provide for. COMMISSIONER SCHIFFER: But I think what's missing -- MR. WILEY: Now, when you look at E is the issue. I think the one you look at here, the next one down, all new development and redevelopment projects shall be designed so that surrounding properties will not be adversely impacted by the project's influence on stormwater sheet flow up to the 25-year, three-day design storm. That would be everywhere. So there's that little bit tighter Page 74 January 9, 2008 restriction placed upon those properties that are on the map 3.07.02-1, compared to just everybody else. COMMISSIONER SCHIFFER: But E means it's everywhere because of the words all new development and redevelopment projects. MR. WILEY: And it does not start off with the condition that it's strictly identified as properties on that figure. COMMISSIONER SCHIFFER: Right. A starts off, all new development and redevelopment projects -- MR. WILEY: That's correct. COMMISSIONER SCHIFFER: -- same as E. MR. WILEY: Um-hum. COMMISSIONER SCHIFFER: So why did A have that caveat that's hidden in there somewhere that if it's a project that didn't have a stormwater system, it doesn't have to be revised? MR. WILEY: Because under the rules that the county has for single-family homes, there is no requirement that single-family homes provide for a separate water management system. Now, if we subsequently do come up with a rule that requires it, this would bring them into compliance with that also. But there is no rule that if you have a single-family home that you submit with your building plans, a stormwater management system. COMMISSIONER SCHIFFER: So what you're saying is -- MR. WILEY: Though the City of Naples is heading that way with some portions, but we're not at that point with the county yet. COMMISSIONER SCHIFFER: Okay. What you're saying is that the single-family residential has no volume storage requirements, thus this is a volume storage requirement, so it would not apply to begin with. MR. WILEY: Right. Now, keep in mind that there is a provision that's coming as an LDC amendment to begin to bring into impact certain percentages of the lot you can build up to. And once you Page 75 January 9, 2008 increase beyond that percentage of a lot, you would have to have some stormwater system. But when that goes into effect, then this would begin to apply to that simultaneously. But that would be for that unique situation where someone proposes to build a greatly built upon lot. COMMISSIONER SCHIFFER: And that is in this cycle. We've reviewed that already. MR. WILEY: That really was in the last year's Cycle -- COMMISSIONER SCHIFFER: Was it last year? MR. WILEY: -- One. MS. FABACHER: It's cycle 2007, Cycle 1, it was approved. COMMISSIONER SCHIFFER: Fine. Now, let's talk about A with that in mind. What you're saying is that there is volumetric storage for single-family houses. So what we discussed earlier back to the 50 percent of assessed value, we are back to where I can gold plate my house and have to upgrade the -- are we not? MS. FABACHER: Excuse me, Commissioner, the applicability of the impervious cover only applies to those older subdivisions that do not have a central system or a South Florida Water Management District permit. So that's limited in its applicability, the impervious cover ordinance that we passed. MR. WILEY: The previous ordinance specified what it took to fall under that particular condition. All I'm saying is this would be utilized injunction (sic) with that previous revision, where that previous provision applied. So you can understand there might be a situation that a single-family home, because it's proposed to build wall-to-wall impervious area, they have to provide now some stormwater retention, this would come into play with that simultaneous. But that's not the common case. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: This is for Mr. Klatzkow. Page 76 January 9, 2008 Mr. Wiley had said that it could be perceived that we're back-dooring to stopping building lots on acre and a quarter, taking away property rights. How would that put the county legally by taking people's rights to build a house that they have a right to build on now under the guise of water management? MR. KLATZKOW: I think they still have the right to build on the house, they just can't build it in the cheapest way possible. CHAIRMAN STRAIN: Or overbuild I think is what the issue is. If you buy a small lot, you better build a small house. The mega houses are going to have a problem. That's what it boils down to. COMMISSIONER MURRAY: Or have a big expensive -- COMMISSIONER VIGLIOTTI: Is there a formula that people would know what they can build before they buy a lot, or -- CHAIRMAN STRAIN: Um-hum. That's what this does. You can't build a bigger house than you can fit the conveyance on the property for. So when you start getting your threshold of your home so large that you can't compensate for it on your own property, what that's really telling you is hey, I'm building -- in want this big of a mega home, I ought to buy a bigger piece of property instead of trying to fit 10 pounds in a five-pound sack, as a lot of people are doing right now. So, I mean, that's how I see it. COMMISSIONER VIGLIOTTI: But it won't stop it, it will just change the formula they need to -- CHAIRMAN STRAIN: It may make the people that want to put too much on a little lot look to a bigger lot to buy instead of cramming something in a neighborhood where it doesn't belong. COMMISSIONER VIGLIOTTI: I'm concerned about the people there now. People in the future buying, I understand. CHAIRMAN STRAIN: People in the future. Any other comments on this item? (No response.) CHAIRMAN STRAIN: Otherwise, I'll read what I think we've Page 77 January 9,2008 come to to date. First all, we're going to scratch Item F on Page 18. Number two, we'd accept the changes as presented by staff. Some of them incorporated DSAC, some did not. Item three, we would add a cumulative language to the assessed value of improvements over a five-year period. Number four, we would add a determinate language for staff in section 3.07.02.C. And number five, under 3.07.02.D, we would add the words on average, where indicated during this discussion. Anything else? (No response.) CHAIRMAN STRAIN: Based on that, is there a recommendation for approval? COMMISSIONER CARON: So moved. CHAIRMAN STRAIN: Made by Ms. Caron. Seconded by-- COMMISSIONER ADELSTEIN: (Indicating.) CHAIRMAN STRAIN: -- Commissioner Adelstein. Any further discussion? (No response.) CHAIRMAN STRAIN: And by the way, that recommendation for approval was for LDC Sections 3.07, 6.05.01, 10.02.02.A.4.F, 10.02.03.A.3.B, Roman numeral six. Does the motion maker agree? COMMISSIONER CARON: Absolutely. CHAIRMAN STRAIN: Second agree? COMMISSIONER ADELSTEIN: (Nods head affirmatively.) MS. F ABACHER: And 10.02.04. COMMISSIONER CARON: 04, yeah. CHAIRMAN STRAIN: 10.02.04. I'm sorry, that wasn't in the front part. You're right, 10.02.04.B.3 and A.3. Are there any other comments or questions? Page 78 January 9, 2008 (No response.) CHAIRMAN STRAIN: Hearing none, I'll call for the vote. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLA T: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: All those opposed? (No response.) CHAIRMAN STRAIN: Motion carries. I'd like to move on to the historic issue. MS. F ABACHER: Yes, sir. And that would be on Page 59 in your new book and summary sheet E. And Melissa Zone, principal planner with zoning and land development review, and she's also the staff-- MS. ZONE: Liaison. MS. FABACHER: --liaison to this board, will answer any questions you might have. And I might also say that per your direction we have returned the original strike-through and underscore of the original text from 09-102. CHAIRMAN STRAIN: If I remember, that was the issue last time -- MS. F ABACHER: Right, correct. CHAIRMAN STRAIN: -- was that we didn't have a true strike-through and it was hard for us to tell -- MS. FABACHER: Exactly. CHAIRMAN STRAIN: -- what was changed or not changed. MS. ZONE: Melissa Zone, principal planner with the department of zoning and land development. Page 79 ---_.~ ,--~--_., January 9, 2008 You're quite correct, Commissioner, the strike-through and underlined submittal that was sent to Ms. Fabacher did not make it in your packet. We have found it and it is here today. And we have here changes from when the LDC was codified in 2004, some of our regulations were omitted inadvertently. Staff is putting these regulations back in so that nobody challenges the historic and archeological process. As well as when I addressed it to the historic board, what we were doing, they wanted some minor changes to clean up language that was redundant. And one of the things, and you'll see it in your strike-through, underlined, we combined some of the same review processes for like final subdivision plan, on Page 63, as well as site development plan review, because those were the exact same process. So to keep it concise, we combined those to one paragraph instead of having each process for each chapter, each section. We also had changed -- it was the board's direction to make that everything go through the county manager or designee. And those changes were not made in the ordinance for the historical and archeological review. So we've changed where it said division manager, planning manager or community services director, and we've made it all concise and made it consistent with the LDC. If you have any questions, I'd be happy to answer them. CHAIRMAN STRAIN: Any questions from the planning commission? Mr. Schiffer? COMMISSIONER SCHIFFER: And it's on Page 62. Preliminary subdivision plat. If I understand it, that's not required now. You can go right into -- MS. ZONE: It really isn't, but we kept it in. We ended up, we kept it in just in case someone wanted to have it. Because the process is there, it's just not one that we require anymore. When I say we, I mean the county. But it is an option. Page 80 January 9, 2008 COMMISSIONER SCHIFFER: I know that, that's why I thought that was the statement. So the concern I have, is there anything in there that's not covered in the final plat? For example, the preliminary plat, which I think is erroneous, refers to making recommendations of the planning commISSIOn. MS. ZONE: Well, that happens if once we bring a petition in front of the board, if we found a historical or an archeological site where there might be some artifacts on the site and that petition is going to be going in front of you, the planning commission, for review, we wanted to make sure that those are incorporated into the -- if it's a PUD document, a rezone conditional use, variance, that you are also aware. COMMISSIONER SCHIFFER: Okay. I mean, that's only required in the preliminary then. I mean -- MS. ZONE: If you look at -- with rezonings, they have it. Because site development plans do not typically go in front of this board. COMMISSIONER SCHIFFER: I don't think preliminary plats do either, so -- MS. ZONE: I wasn't sure, since I was not here or working here at the time. And I did not want to omit something, so I'm happy and willing to omit it, because that was something that I had questioned as well. COMMISSIONER SCHIFFER: Okay. Well, my real question is there's nothing in the preliminary subdivision that by going directly to final you would not have to do. Everything in the final would be equal to what's in the preliminary. MS. ZONE: Right. The reason why we didn't, Commissioner, combine them is because at some point if we do away completely with the preliminary subdivision plat, it would just be easier to omit it and then have to Page 81 January 9, 2008 revise that other chapter. We could just bring it back up. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Okay, is there any other questions on this section? (No response.) CHAIRMAN STRAIN: Is there a motion to approve? And it would be for Section 2.03.07. COMMISSIONER ADELSTEIN: So moved. COMMISSIONER SCHIFFER: So moved. CHAIRMAN STRAIN: Made by Commissioner Adelstein, seconded by Commissioner Schiffer. Any further discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Mr. Kolflat was just coming in the door. Mr. Kolflat, do you like this historical -- COMMISSIONER KOLFLA T: I think it's wonderful. CHAIRMAN STRAIN: Okay, so it's unanimous. Thank you. MS. ZONE: Thank you. CHAIRMAN STRAIN: Thank you, Melissa. There are two remaining, and it's the noise portion of the outdoor seating and then the SDP application for outdoor seating. I would estimate that will probably take us about an hour or less to get through. It's getting close to lunchtime. I know we don't need to take a Page 82 January 9, 2008 lunch break and then come back to do that one, I would hope. But I think we ought to take a break now and come back and finish that one up. So let's take a 15-minute break to 11 :25 and resume at 11 :25. Thank you. (Recess.) CHAIRMAN STRAIN: Okay, welcome back again from our break. We have two items to move into and one to finish up before we're done here today. But the next two items are kind of together. It's the outdoor serving area permit, which starts on Page 41 of our packet. And the submittal requirements for site development plans, which are on Page 53. Now, these are in reaction to some of the issues that have recurred lately regarding entertainment areas and outside noise in relationship to residential neighborhoods. So I guess the best way to approach it, and I'll -- I had met with staff to try to find ways to maybe help today move a little bit forward on this, instead of where we've been sending it back so many times. And we did come up with some criteria that would make it a little more comfortable for staff to apply their discretion in regards to the second factor today, and that is when they would look at an incompatibility on a site development plan. But why don't we start on Page 42, which is the outdoor seating issue, and work our way through that before we get to the review of the SDP's. Are there any comments or questions? And we'll take it page by page. Let's just do Page 42 first. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, start out with the definition of amplified sound. The problem I have with the definition is that it appears that it needs a source of sound and then amplified sound electronically amplifies it. For example, some of our concerns are radios, televisions and stuff. While they're definitely amplified, but they're not amplifying a source. So would that be a problem, or -- Page 83 January 9,2008 MS. FABACHER: Well, Commissioner, the reason we put this in is because it's exactly the same definition as is carried in the noise ordinance, which is in the code of laws and ordinances. So we wanted to have both -- the same definition in both sources. COMMISSIONER SCHIFFER: Okay. But -- MS. F ABACHER: I don't believe it's a problem. COMMISSIONER SCHIFFER: Well, my concern is that, for example, is a television amplified sound? And the reason I don't think it fits this description is it's not as the description describes, amplifying a volume of -- increasing the volume -- MS. FABACHER: Well, it has speakers -- it has a speaker. But I see what you're saying. I see your point. COMMISSIONER SCHIFFER: It says the use of a public address system, loud speaker, amplifier or any other device which electronically augments the volume of sound. So my concern is there are devices that don't have a source that it's augmenting, it is the source and amplification. CHAIRMAN STRAIN: Well, no, isn't the TV source the waves and the cable that bring the entertainment to it and then when you turn the volume up there's your amplified sound? COMMISSIONER SCHIFFER: Well, if legally does that sound good, or -- MR. KLATZKOW: For clarity sake, and I understand Brad's concern, if you want to include T.V.'s in it, include T.V.'s in it. CHAIRMAN STRAIN: Well, then we'd have to put in radios, CD players, VCR's, cassette players, boom boxes. Where are we going to end? COMMISSIONER SCHIFFER: Well, we could use electronically generated sound and that would cover all of those devices. The concern is the way it's described, it's increasing something that has to exist before it's increased. Page 84 January 9, 2008 MS. FABACHER: Well, I don't think that code has any problem knowing what these devices are. But we'll look at it. And I want to talk to them, because I want to parallel it in the noise ordinance. CHAIRMAN STRAIN: But say we -- after the word electronically, could we say which electronically generates or augments electronic sound? No, electronically generates or augments the volume of sound. So if we put in generates or, wouldn't that cover it then? COMMISSIONER SCHIFFER: Yeah. MS. FABACHER: Okay. COMMISSIONER SCHIFFER: That would be better than what it is. MS. F ABACHER: All right, no problem. COMMISSIONER SCHIFFER: I've got more, Mark. CHAIRMAN STRAIN: Well, let's stay on Page 42. If you're got more on 42, let's get past -- let's get -- COMMISSIONER SCHIFFER: Right. I can't read my note, though. If anybody else has a question, let them go. I can't -- I have to research my note. CHAIRMAN STRAIN: Okay, anybody else on Page 42? (No response.) CHAIRMAN STRAIN: Catherine, I do. You talk about applicability, and it's for establishments -- eating or drinking establishments serving food within the unincorporated area -- food or beverages within the unincorporated area of Collier County. What about outdoor entertainment areas that don't serve food? Say they serve only drinks. MS. FABACHER: Well, it says food and/or beverages. CHAIRMAN STRAIN: Okay. Well, what if they don't serve -- I mean, if it's not -- can you have outdoor entertainment or would you have a waiting area, say, outside of a bar and have amplified music to it and just not serve food or drinks until they come inside and be Page 85 January 9,2008 seated? MS. FABACHER: Well, one thing is I think that that would be covered by the noise ordinance. Remember, I think we agreed that when we discussed it the other day, we thought that perhaps we would just permit for outdoor serving areas in general. It didn't matter about the sound. The sound would be left for them to get an annual permit from code for live entertainment music/amplified sound permit, temporary use permit. CHAIRMAN STRAIN: Okay. MS. F ABACHER: In fact, I think we talked about removing with outdoor entertainment on private property from that also. We're not going to do -- our -- I think we had discussed that the zoning department would be issuing a one-time permit -- CHAIRMAN STRAIN: Right. MS. FABACHER: -- for an outdoor serving area. CHAIRMAN STRAIN: Right. That was part of the discussion. MS. F ABACHER: Right, so the music part would be left to the code people under the changes they're making to the ordinance. Right now they currently have a live performance music and/or amplified sound permit, but they haven't been really implementing it. And I believe it's now under the new changes coming up, the board directed and I think maybe you guys directed it too, that they're going to look at now actually doing that for everybody. And it's not just outdoor sound, it's any sound in any establishment. CHAIRMAN STRAIN: Okay, Brad, did you have your-- COMMISSIONER SCHIFFER: I do have some more, yeah. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: I-A, or A-I-A, we have PUD's and stuff that -- mixed use. Would that be covered in that? It says requirements shall not apply if the -- and we have residential use or zoning district is a mixed use. I mean, would that be covered, all of our -- any kind of a situation where we have commercial and Page 86 January 9, 2008 residential together? MS. FABACHER: You know, staff hasn't really had a chance to discuss it, but I want to put you towards -- on Page 45. COMMISSIONER SCHIFFER: Right. MS. F ABACHER: Where they get much more specific about defining on the bottom under A, these time restrictions shall not apply if the residential use or zoning district -- and they get real specific -- about part of a mixed use project. As far as your question goes, I wonder if we want to --I'm sorry. MS. ISTENES: The answer is yes. Susan Istenes, zoning department. COMMISSIONER SCHIFFER: And here's my thought, actually. And it is connected to 45, that's why it confused me. Wouldn't it be best just to move what it says in 45 up here? And we don't need it in 45 because it doesn't apply to this ordinance. So -- MS. F ABACHER: Yeah. COMMISSIONER SCHIFFER: In other words, in 45 it's saying that these restrictions don't apply. Well, if we move it up to the -- you know, where it shows the applicability, then it obviously wouldn't apply because it's not applicable to that kind of development. MS. F ABACHER: That was my thought, too, but then I wonder, wouldn't we, even if it's mixed use, want to give that level of scrutiny for the one-time permit for an outdoor seating area? COMMISSIONER MURRAY: Yes. COMMISSIONER SCHIFFER: But you're not. MS. ISTENES: No. MS. FABACHER: We wouldn't want to? MS. ISTENES: That's not the intent of this ordinance. COMMISSIONER SCHIFFER: The ordinance doesn't do that. So I think what it is, is my suggestion is take 1 -- A-I-A and take the verbiage -- MS. FABACHER: I understand. Page 87 January 9, 2008 COMMISSIONER SCHIFFER: -- on E-2-A, put it in there. It won't be needed on E-2-A because obviously it's not applicable. Second one is on B. One of the biggest problems we had is not the sound of the amplified sound but actually the people reacting to something. So my thought is can we add to the list of entertainment to be video with or without sound? And essentially if we get rid of the stimulus, we could get rid of the crowd cheering. MS. F ABACHER: It was my impression that that would be covered under the noise ordinance again. And I was thinking we would strike this altogether, because we're removing that sound element from this. And what we're really talking about is having zoning issue a permit just for the outdoor serving area, irregardless or irrespective of entertainment music. CHAIRMAN STRAIN: Mr. Klatzkow, we're already beyond a point that I can understand what we're doing. We'll muddle through this for the rest of today, but when we get done I think the exchanges, based on the way we're heading, are going to be more -- a little more in-depth than we could probably resolve by stipulating them at this meeting. Would we still have time, if we heard this on Friday after the Cocohatchee? MR. KLATZKOW: I think we'll make the time. This is an important issue. CHAIRMAN STRAIN: I agree. I think you could make the changes rapidly with a computer by striking and moving the sections, but we're only into the third paragraph on the first page and we're already moving sections from one end to the other, and I really don't know what that's going to do to the questions I had now. So -- and I know you don't have much time to get this out to us, but if you were able to send this to us by tomorrow afternoon and we could look at it tomorrow evening in preparation for Friday afternoon finalizing it, then we -- as we go through this, that might be the best way to Page 88 January 9, 2008 approach it. And I'm telling you that early so that that's what we're looking to do, maybe, and staff can just start taking notes. Is that something you can do tomorrow, Catherine? MS. FABACHER: I can try. CHAIRMAN STRAIN: Okay. I mean, if you can send me a template, I'll do it tonight. I mean, it's not going to -- it's just a matter of having it -- you guys got the templates on this stuff and you got the Word programs that allow it to be changed. And we're suggesting cutting and pasting and making changes. But I think based on what I'm hearing, we're going to be going through a lot of this before this day's over, more than you can finish in today's meeting, and probably accurately reflect what we're trying to do. So that's the suggestion. We'll just keep going like we are. MS. ISTENES: Could I just clarify? The intent is really outdoor seating with or without entertainment. And I don't -- I read A and it says with outdoor entertainment, and I think that's what Mr. Schiffer was referring to. It really is outdoor seating, with or without entertainment. COMMISSIONER SCHIFFER: But it doesn't say that. Even the title -- MS. ISTENES: I know that. COMMISSIONER SCHIFFER: -- in the section. MS. ISTENES: I know that. I was pointing that out. But the conversation was going a different way and I just wanted to say that for clarity purposes, so -- COMMISSIONER SCHIFFER: We're just -- MS. ISTENES: -- with that in mind, unless the board has a different opinion about what they want to see, maybe we could just kind of keep that in mind as we're going through. CHAIRMAN STRAIN: Okay. But so we clear it up under applicability, you're saying owners, managers of outdoor serving areas Page 89 January 9, 2008 MS. ISTENES: With or without. CHAIRMAN STRAIN: -- with or without outdoor entertainment on private property. MS. ISTENES: Correct. Correct. COMMISSIONER SCHIFFER: Well, that's a -- I mean, look at the title of the whole section. It's outdoor serving areas with outdoor entertainment on private property. That's -- I mean, the drift of the whole thing is that. But anyway, I have one more thing on 42 is -- and there's a lot of situations where we use this. It says can be administrated unless one or more findings of violations. Wouldn't it be better to just say unless A, finding a violation? I mean, first of all, they should never get to two to begin with. I understand why you wouldn't want to say one, because the guy could say hey, I've got five, you know, what are you picking on me for? MS. ISTENES: Right. COMMISSIONER SCHIFFER: It says on -- but I think unless A, finding of violation would be a better way to go and then not give the illusion that you could have more than one. And the sad thing about this whole -- number two is that if the sound ordinance would stop people from disturbing the neighbors, we wouldn't be here. Since this clause states that it's the sound ordinance that triggers what happens in this thing, so connecting the logic, this won't be here either. So isn't -- the problem child the sound ordinance. And in reading the sound ordinance, I don't see where the problem is. It does look like there's some handles in there, but we've never had testimony as to why the sound ordinance doesn't work. But I'm done with 42. CHAIRMAN STRAIN: Okay, we're still on 42. Mr. Vigliotti? Page 90 January 9, 2008 COMMISSIONER VIGLIOTTI: Susan, I have a question. We started a while ago to try to protect the small mom and pops outdoor seating restaurants with just a few seats, four, five, six seats. Do you want to bring them back in again? Is that-- MS. ISTENES: Oh, boy. No. COMMISSIONER VIGLIOTTI: But you're suggesting somehow. MS. ISTENES: I know. And I'm looking for my notes on that. I apologize, because we did talk about that some more. And do you recall -- MS. FABACHER: We said that it was going to be serving but not seating. If people are just sitting out there and smoking a cigarette. But if you're talking about an ice cream parlor and there's some outside, they would fall under this current language under a one-time MS. ISTENES: Thank you. COMMISSIONER VIGLIOTTI: But in the beginning we tried to keep them out of them altogether, the smaller restaurants, without extra charges of permits and -- MS. FABACHER: Understood-- COMMISSIONER VIGLIOTTI: -- this, that and the other thing. MS. F ABACHER: -- understood. But that discussion was when it was a much more onerous permitting situation. Now it's pretty much going to be administratively with some tiny fee. MS. ISTENES: Correct, unless there is a finding of violation, and then it falls into a different category. But yes, to answer your question, the way that -- Catherine is accurate in her reflection of our latest conversation. We couldn't find a way to discern between the two, we really couldn't, and so we just tried to make it as less onerous as possible by just making them administrative permits, rather than having them all go before the board was never intended -- Page 91 January 9, 2008 COMMISSIONER VIGLIOTTI: But the way it's written now here, it excludes them. And you want us to change it. So -- CHAIRMAN STRAIN : Well, maybe -- MS. ISTENES: Yeah, as you get further along you may-- CHAIRMAN STRAIN: No, I guess I'll just read. The same -- I realize that the issue you're talking about may come up during today's discussion. And in anticipating that -- and there were some other issues, too -- I met with staff to try to figure out answers to that kind of a question, how it could be reworded to possibly mitigate those issues. And I'll read to you the bullets that may -- that if the committee agrees could apply to section 4.04.07, although they all may not pertain to Page 42. Let me just read them. First one, all outdoor serving areas shall be issued a one-time temporary use permit for outdoor serving areas. And this would not apply to outdoor seating areas where there is no food or beverage involved. So you get a one-time permit. If you don't have food and beverage, you don't even need it. But if you have an outdoor serving area, you need a one-time permit. COMMISSIONER SCHIFFER: But Mark, I'm really kind of -- I must be confused here. We were handed this booklet. It has permits for outdoor serving areas with entertainment. Susan's saying but that's not really what this is, this is really all outdoor seating. You're going -- I mean, why would somebody write this ordinance and have it not be what it means? MS. FABACHER: Actually, our discussion is based on having had discussions with the Chair, and we just haven't had the time, since we had the discussion yesterday, to change this text for you. That's the problem. This is an older version. CHAIRMAN STRAIN: Well, again, you couldn't change the text based on discussions with me. MS. F ABACHER: Right. Page 92 January 9,2008 CHAIRMAN STRAIN: I was trying to come up with solutions to what I would anticipate, based on having sat with this board through what, three, four, five other meetings on this issue trying to get to -- MS. F ABACHER: From last cycle. CHAIRMAN STRAIN: Huh? MS. FABACHER: It came from last cycle too. CHAIRMAN STRAIN: Right. -- trying to get to a resolution on it. So I thought okay, I'll sit down with staff, anticipate the questions, try to come up with some answers and suggestions, and if they meet the criteria and we can move this thing forward, then we've accomplished something. But we've been at this thing for nearly a year and it's getting pretty stale. MS. ISTENES: And basically what we did was review all of kind of the year's worth of conversations. Your concern over the mom and pop guys, the difference between outdoor seating versus outdoor entertainment. So yeah, I mean, that's kind of where we are, unfortunately. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: At one point the mom and pops came up, and we resolved it by excluding them -- CHAIRMAN STRAIN: It was a different ordinance then. COMMISSIONER VIGLIOTTI: -- and we weren't supposed to build on that. Now they're coming back in. CHAIRMAN STRAIN: It was a different ordinance. The ordinance, when it first came up, was much more onerous than it is today. The cost, the impacts, what it applied to, the process that you would have to fall under, all that was a whole different program. This is a different ordinance than it really started out to be. I understand the BCC is going to get the whole trail of them, and they'll have a lot of fun with that. But in trying to get an ordinance that could be applied to everyone fairly, there were certain things that had to get on the table, and that was the issuance of the permit and the Page 93 January 9, 2008 applicability. A one-time permit for a fee on think it was $250 or whatever the cost was to submit and apply -- maybe even less than that, $300 (sic) or something-- MS. F ABACHER: It was less. CHAIRMAN STRAIN: It was a one-time permit. And unless that facility modified its operation or didn't manage its operation carefully and its patrons got wild and crazy and they successfully were prosecuted for a noise violation, they never need to come back in for another permit. That's not too unreasonable, at least I didn't think so, but-- MS. ISTENES: And it's approved administratively, whereas the old ordinance -- CHAIRMAN STRAIN: Right. MS. ISTENES: -- had everything going before the board. And advertising and all that. COMMISSIONER VIGLIOTTI: So the permit will be issued, no questions asked, as is, they just apply for it, they get the permit and they're good until there's a problem? MS. ISTENES: Correct. I wouldn't say no questions asked, but, you know, obviously we're going to say what -- if you're the ice cream parlor, I think it's going to be obvious, but we're probably going to ask, oh, you're putting small bistro tables out so your patrons can eat their ice cream outside. I mean, that will be like the extent of the questionings. Just confirmation of what the use is and how they're going to use this -- COMMISSIONER VIGLIOTTI: But there will be no decision-making you can, you can't. MS. ISTENES: No. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I think I was the guy that brought up the mom and pops issue, and I was concerned -- still could be concerned about it. However, I will tell you, after hearing the Stevie Page 94 January 9,2008 Tomatoes issues and becoming more aware of it, I looked at this document that we've now evolved into and thought it covers what it needs to cover in order to protect everybody. And so I'm not as concerned. I think we've got -- I think because of the conversations we've had, we've evolved into a better document. Is it perfect? No. But I think it does the job that it needs to do. So if that helps you in any way. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Susan, whatever happened to enforcing the thing? Because the -- the sound ordinance. It states that there's an annual permit, which obviously you wouldn't renew if somebody was disturbing somebody. For live performance and/or amplified sound. Throughout the thing it says live performance or amplified sound. It has penalties, it has hours. How come that's never -- I mean, it's essentially what we're trying to do here. I mean, it's discussing, you know, residential neighbors and stuff. I mean -- and unfortunately it is the trigger of whatever we do here anyway. So if the trigger doesn't work then why make a bigger shell? I mean, you're never going to fire it. So why aren't we just discussing the trigger? And the second point is if today we're going to rewrite this to be a different kind of ordinance for just outdoor seating with or without entertainment, that's a big task. MS. F ABACHER: Excuse me, outdoor serving. COMMISSIONER SCHIFFER: Yeah, outdoor -- MS. F ABACHER: Seating, serving. COMMISSIONER SCHIFFER: With or without entertainment? MS. FABACHER: Yes. COMMISSIONER SCHIFFER: So that's the new title of this. CHAIRMAN STRAIN: Well, like I said, we can change the title. It's wordsmithing and then the application. Page 95 January 9, 2008 This is a use. This becomes a permit for a use. It's different than a regulatory permit for noise violations. That's why we have to -- that's why a section in the LDC is justified. It becomes a regulated use. The impact of that use then falls under the code of laws in the noise ordinance. That's why you need them both. You first got to have the use acceptable through a permit process that can be lost if they violate the code of laws. Once they violate that, then we pull their permit, then they can't be there anymore. COMMISSIONER SCHIFFER: I mean, I'm reading, annual permit, annual permit. MS. F ABACHER: Excuse me, you're reading from the code of laws? COMMISSIONER SCHIFFER: I'm reading from the code of laws. MS. F ABACHER: The noise ordinance. CHAIRMAN STRAIN: Right, that's-- COMMISSIONER SCHIFFER: For live performance and/or amplified sound at commercial or tourist commercial sites. So why don't people who have outdoor seating, which is what this describes, non-enclosed area, why don't these people have annual permits and why aren't you using that as the regulatory -- just like you're saying, Mark, it exists, it's in the code of laws. It's not in the LDC, but the code of laws govern. MS. ISTENES: I would agree with Commissioner Strain. I mean, he explained it. I can't explain it any better. It's -- I suppose you could call it a different layer, but it's a land use issue, not a -- CHAIRMAN STRAIN: If anything, Brad, this makes the ability for county staff to enforce that law better. It doesn't hurt, it offers another level of protection, and it certainly makes it easier to enact that level of protection than trying to go through the noise ordinance to do it. That's where I was -- that's where I think this whole thing is coming from. Page 96 January 9, 2008 COMMISSIONER SCHIFFER: But the irony of the whole thing is that down on 2 it's requiring this noise ordinance, isn't that right, Jeff, to trigger the violation. So the point is that if you can't get a violation, then you can write anything you want in here. If you can't get to the trigger, based on the violation that exists already, the code that exists already, then what do you do? You haven't done anything. MS. ISTENES: They definitely work in concert together. CHAIRMAN STRAIN: Right. And they're rewriting the noise ordinance as we speak. Ms. Fabacher, did -- MS. FABACHER: That was my comment, Mr. Strain. CHAIRMAN STRAIN: The noise ordinance is being rewritten in reaction to the same purpose that we're here today. We're going to give them a double whammy if they -- we're going to have two avenues in which to approach this to make sure it don't happen, and if it does happen, we're going to do the best we can to stop it. But this is better than not doing anything at all. COMMISSIONER SCHIFFER: Okay. So we're going to be concerned with noise, that's what the virtue of this is? Then why are we picking on just the outdoor seating guys? Because if you do change it to be outdoor seating with or without entertainment, you've picked up two seats in front of the ice cream parlor. CHAIRMAN STRAIN: If the outdoor seating guys have to come in and get a permit for their outdoor seating, under the condition that if they do anything in regards to outdoor seating that disturbs the neighborhood and they end up elevating it to a noise problem, they may not get that outdoor seating again to retain their business with. And they can have their indoor seating, but they don't have their outdoor seating anymore. That's a huge incentive for people to not -- to manage their property better and not to get out of line. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: So that's the basis under which I had Page 97 January 9,2008 thought this was going forward. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Did you say a violation or complaint? In other words -- CHAIRMAN STRAIN: A confirmed violation. Complaints don't carry any weight. You have to go through the process and be done with it. I started to read -- Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, does this mean we're going to regulate things like Wynn's Grocery Store, which has outdoor seating, or Cold Stone Ice Cream parlor, which has outdoor seating-- CHAIRMAN STRAIN : Yes. COMMISSIONER KOLFLA T: -- and all that? COMMISSIONER CARON: They need to get a permit. CHAIRMAN STRAIN: There will be a one-time permit to get it. As long as they never did anything that triggered a successful court action against them -- or code enforcement action against them for noise, they'd be left alone forever. But if they ever did have a noise problem to where their neighbors complained -- and in that location, I can't imagine anybody would, because it's in a huge commercial PUD. But ifthere's a complaint and a problem, we have to have some way of reigning them back in, and that's what this is being put into play for. So yes, it would apply to everything and everyone. At least from my reading of it, so -- MS. ISTENES: May I? Quite frankly, you know, with newer projects or site plans that are being amended, we can collect the -- they can do the permit through that process. It's not like it's that onerous. I mean, they can just through their SDP approval also obtain the permit administratively through the same process. In fact, we would likely tie them together. CHAIRMAN STRAIN: The other couple of bullets that involve this section, I think we might have just touched on, but I'll reread them Page 98 January 9,2008 just so you know. The permit would be issued -- the one-year temporary use permit. It would be a one-year temporary use indefinitely until a noise violation came into play. That permit would be issued administratively through zoning unless there had been one or more findings of violation of the noise ordinance within the previous 12 months. The third item, if the establishment has a violation history, then the application for temporary use permit or outdoor serving areas will go to the BCC at a regular meeting. The board may decide to approve, deny or approve with conditions. And the last: Eating and drinking establishments where there is live music, entertainment, amplified sound will be required to obtain that annual permit through code enforcement. And that's the permit that Brad, you were reading this in the noise ordinance. So those are the additional bullets to this Section 5.04.07 that need to be incorporated into it as we go through these pages. And ifthere's no objections from the panel, they can come back in draft form to us on Friday to finally discuss. But that's the suggestion that I came forward with with staff and everybody working together over the last couple of days in some meetings trying to figure out how to resolve the concerns expressed here before. If you disagree with it, please say so. Otherwise, we want to get something going. (No response.) CHAIRMAN STRAIN: Okay, we're still on Page 42. Does anybody else have questions on Page 42? (No response.) CHAIRMAN STRAIN: I have one more. And this may have been answered in the issue that Brad brought up about moving E-2-A up to this point, but just in case. A-I-A refers to the requirement shall not apply if the residential use or zoning district is mixed use and allows for the mixing of Page 99 January 9,2008 residential and nonresidential uses within the same development. Does that mean if that language stays in this requirement does not apply to the condition of Pebblebrook? Because then we're losing the intent of the whole thing to begin with. MS. F ABACHER: Catherine Fabacher. I believe that they are not a mixed use PUD. I believe that they have a commercial component in a residential PUD or vice versa. No, they're a -- CHAIRMAN STRAIN: Catherine, it doesn't -- no, no, no, you're jumping the gun. It doesn't say a mixed use PUD. It says if the zoning district is mixed use and allows the mixing of residential and nonresidential uses within the same development. Pebblebrook is one development. So are most of the other PUD's that contain commercial uses. Whether you call them mixed use or not, they weren't back then when Pebblebrook was here. We only had PUD's, we didn't have an MPUD. So if it's not defined as a mixed use but it has mixed uses in it, it looks like it's exempt, which I don't think was the intent of this whole thing. MS. ISTENES: No, that's not the intent. The intent was only to exclude those -- and I'll just describe them for purposes of discussing. The mixed use where you've got, for example, a residential component above a commercial component. Those type. So yes, I think that needs to be cleaned up. CHAIRMAN STRAIN: So A's got to be rewritten. COMMISSIONER SCHIFFER: And Mark, the point you're making is that while within the development it doesn't apply, but it certainly applies to the surrounding neighbors. I mean, that's the concern I had when I read this thing over. And the other thing is that the way it's worded, you know, you're exempting something. But essentially that something could disturb a neighbor. So I think we have to exempt it only from within the Page 100 January 9, 2008 development itself. MS. F ABACHER: I think that Mr. Schiffer's suggestion to go to Page 45-A and look at that, that's much better language. You might look and see if that's close enough to what we're talking about. CHAIRMAN STRAIN: What I do want to do, though, is I don't want to leave the language I just read in. Because -- MS. FABACHER: No, I understand. COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: -- it's obviously not going to work. MS. F ABACHER: Right. I had made a note to, as he had suggested, to look at putting that there. And I guess Susan can look at that language and see if that does cover all possibilities. CHAIRMAN STRAIN: Okay, on -- go ahead, Mr. Murray? COMMISSIONER MURRAY: Recently Stock at its boutique mixed use not far from residential, quite close to residential, actually, and they were granted amplified sound till 10:00 p.m. I think we need to take into consideration that the BCC concluded that was acceptable to 10:00 p.m. I don't know whether or not they should strike out boldly or what we should do in that matter, but I thought I'd offer that information. CHAIRMAN STRAIN: Well, that's the issue on 45 that's brought up. Yeah, when we get to Page 45, I agree with you, I had circled that. But we ought to -- when we get to that page, we ought to talk about times -- COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: -- of operation. Is there anything else on Page 42? (No response.) CHAIRMAN STRAIN: I have one more. Item two, the last full sentence, it says -- refers to the facility. And my question there, it talks about a finding of violation, the Collier County ordinance, noise ordinance, have been issued to the owner/manager of the facility by Page 101 January 9, 2008 the Collier County Code Enforcement officer. What's the facility? COMMISSIONER SCHIFFER: Good point. CHAIRMAN STRAIN: I mean, do you mean the business? MS. FABACHER: Yes. CHAIRMAN STRAIN: Okay, why don't we say that? MS. FABACHER: We should say the parent-- CHAIRMAN STRAIN: Well, the parent business could have 15 subsidiaries all over the county, like Stevie Tomatoes has more than just one, so you don't want the parent, do you? MS. F ABACHER: No, whatever you -- CHAIRMAN STRAIN: Don't you want the business at that location? MS. F ABACHER: Yes. CHAIRMAN STRAIN: Okay, well, I think you need to somehow say that. COMMISSIONER MURRAY: Or the location of the permitted -- the permitted location. CHAIRMAN STRAIN: Something to that effect. But I think if there's an issue there, Catherine -- I mean, there is an issue there. I think it needs to be resolved. And if you can come up with language and go forward. Page 43. Are there any questions on Page 43? (No response.) CHAIRMAN STRAIN: Okay, the-- COMMISSIONER MURRAY: I do have one, if! may. CHAIRMAN STRAIN: Mr. Murray, go right ahead. COMMISSIONER MURRAY: It's just for my edification, perhaps, only. But, you know -- and I understand the reason for it to go to the Board of Zoning Appeals as a conditional use. I just wanted to qualify. In that matter we would not hear that, we would not see it, because it is more a punitive action, I would presume. Page 102 January 9,2008 CHAIRMAN STRAIN: We hear -- COMMISSIONER MURRAY: Can you construe -- or could you see a future where the Board of County Commissioners might remand such an issue back to us? CHAIRMAN STRAIN: But Bob, in Section 10.08.00, doesn't that require conditional uses to come to us? MS. F ABACHER: Right. But didn't we discuss changing that? One of the options would be to change that just to go to the Board of County Commissioners? COMMISSIONER MURRAY: I don't remember that dis -- I remember an awful lot of discussions and I can't -- MS. FABACHER: I'm sorry. COMMISSIONER MURRAY: -- say with clarity that -- MS. FABACHER: Mr. Murray, I'm referring to the discussion that staff had with Mr. Strain. COMMISSIONER MURRAY: Well, that may be, but I'm not aware of that. So I'm raising an issue that may not have meaning, but I am raising it, because if it does have meaning, we ought to talk about it. I don't know if the ordinance that we are under requires conditional uses to come to us. MS. F ABACHER: It does. COMMISSIONER MURRAY: And I thought so. CHAIRMAN STRAIN: Right. COMMISSIONER MURRA Y: And I wondered then -- and I thought, okay, I could make a case for it going directly to the BZA, because on Page 43 it references that. But it seemed to me we'd be violating our own ordinance. CHAIRMAN STRAIN: Okay, but the way this is written, it would be heard by the Board of Zoning Appeals as a conditional use subject to the standards and procedures established in 10.08.00 which provides us to hear it first. Ultimately the BZA hears everything. So Page 103 January 9,2008 the fact that they're going to be hearing the conditional uses is fine. I mean, they're going to hear it anyway. But I think it's subject to our going through the process. COMMISSIONER MURRAY: I don't think the intent that this was written was to have it go through us, because I do have some recollection of a conversation where I think that you folks thought that -- not you folks, but I think Catherine thought that it shouldn't come through this for that purpose. I don't mean to put words in your mouth, but that's my recollection. MS. F ABACHER: No, that's fine. COMMISSIONER MURRAY: And so if that's true what you just said, Mark, fine, I agree with that. But if that's not the intent, then we ought to know that. CHAIRMAN STRAIN: Susan? MS. ISTENES: May I --let me see if! can say what I want to say. My recollection is we -- in the past we discussed a conditional use, and I believe Catherine pointed out probably way back when that technically or legally speaking the conditional use was not the appropriate process to use for this type of what I would call basically a permit. I mean, it is a permit. Yes, conditional use is reviewed by you all. You forward a recommendation to the BZA, BZA makes the final decision. My question would be -- our recommendation would be not to do a conditional use. That would mean that any permit that had one or more violations or a violation that was found to be legitimate would then have to for future issuance go to the BZA for approval. So in a sense they would be approving what is a temporary use permit under certain conditions. That would not go to you. Do you wish that it go to you? And if so, then we would entertain that recommendation, because this is technically a new process, and we could write that in if that is your recommendation. Otherwise -- CHAIRMAN STRAIN: I would suggest, out of respect for the Page 104 January 9,2008 Board of County Commissioners, they're the political body that's going to get the heat should the citizens be upset, that the first language in here remain that it goes to them, but as a temporary use permit approval instead of a conditional use. So you would strike the last part of that sentence. COMMISSIONER MURRAY: Good. CHAIRMAN STRAIN: And then if you point that out to the board and they decide they want it to go to us in lieu of them or in addition to them, let them make that decision. I think they're the ones that are going to get the political heat. It's their constituents. And that can be something you can point out to them and politically they can then decide what is the best tact to take. MS. ISTENES: Okay. CHAIRMAN STRAIN: Okay, Page 44. Are there any questions on Page 44? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Up at the top, B. What you're saying is that they have to submit this document, you know, which in essence would flag any violations within 30 days. Is that something that you will be reviewing, though, when you review the thing to see if anything's occurred since then? MS. FABACHER: (Nods head affirmatively.) COMMISSIONER SCHIFFER: Okay. And then I was thinking MS. FABACHER: Yes. COMMISSIONER SCHIFFER: -- of adding to the application that there be a layout of the outdoor use, essentially a plan showing what the people intend to do out there. Now, you may have that covered under a completed application as prescribed by the county manager. You may in there require a layout. But the concern I have is that there should be a layout showing Page 105 January 9, 2008 -- and holding people to what it is they intend to do out there. Otherwise, you know, five chairs could turn to 50. And also, there's, you know, exiting, life safety issues that should be reviewed. But anyway, my thought was to add E, a layout, and then in 3, which are reasons to deny the application or refuse or revoke a permit, I think you should add in there that the layout doesn't comply with the governing life safety codes. That would be a good reason to not allow the use. CHAIRMAN STRAIN: Mr.-- COMMISSIONER VIGLIOTTI: Question, Brad. A layout, handwritten layout? Or now we're going to go to an architect, or how do we want to -- if we're going to write something in? COMMISSIONER SCHIFFER: I mean, I think -- you know, much like people go to the health department, there's some pretty crude layouts, but it's a layout nonetheless. MS. F ABACHER: Site plan. COMMISSIONER SCHIFFER: Yeah. I mean, it doesn't require an architect or an engineer. MS. ISTENES: May I? CHAIRMAN STRAIN: Mr. Kolflat after Ms. Istenes. MS. ISTENES: Thank you. If it's approved through a site plan, you're going to get a layout as part of the site plan. But -- number one. Number two, the LDC allows us the administrative authority to determine what goes in our application packages, and I can tell you it's standard just to have a layout. And no, it is not required to be engineered for temporary use permits. I would accept -- as long as it's accurate and it has to accurately reflect what's going to go out there, you know, the number of seats and all that. Again, you're going to have this information on your site plan anyway, because outdoor seating requires that it's shown on your site development plan. So unless you're going to be like in a shopping Page 106 January 9, 2008 center, for example, then it's going to get a little bit -- it's a little bit different for shopping centers because you've got an overall parking calculation for shopping center. And I'm thinking of like a Starbuck's or an ice cream place that throws a few tables out there. You're generally not going to trip that -- COMMISSIONER VIGLIOTTI: Well, a little strip center with three or four restaurants and each restaurant has four or five or six tables, you're not going to have a site plan, if the shopping center's old. MS. ISTENES: We would, yes. We would have something. COMMISSIONER VIGLIOTTI: But the seating won't be on there. MS. ISTENES: Might not be, yeah. COMMISSIONER SCHIFFER: But you're -- what you're saying is there's no need to add it to this because you're going to include it in I-A, which is the application -- MS. ISTENES: Correct, yes. COMMISSIONER SCHIFFER: -- it's a requirement. Which is fine with me. MS. ISTENES: That's our standard requirement. MS. F ABACHER: I might suggest, too, that we do what we've been doing in other areas where we sayan approved application -- county manner (sic) approved application form, not stated in here. MS. ISTENES: Exactly. That was my intent. MS. F ABACHER: And just put it -- because we can easily change the application. You know, we don't have to come -- MS. ISTENES: Exactly. MS. FABACHER: Thank you. CHAIRMAN STRAIN: Okay. Mr. Kolflat, then Mr. Murray. COMMISSIONER KOLFLAT: Yeah, we all agreed, apparently, or talked about the fact that the Board of County Commissioners is going to make the determination and decision that does directly not involve planning commission. If that's the case, why are we starting to Page 107 January 9, 2008 outline what the details are that they should use as criteria, such as drawings and so forth? Shouldn't the County Commissioners decide what they want, to make their own judgment? CHAIRMAN STRAIN: No, they would -- actually, the commission would much prefer, I think -- I can't speak for them, but I think they like to see us work out the nuts and the bolts of this stuff, get our recommendation, and then they can focus on their recommendation instead of having to reinvent the wheel. We save a lot of time by doing what we're doing here today. So I think this is a preferred method to get there. That's my opinion, at least. Forty-four. COMMISSIONER MURRAY: I had -- CHAIRMAN STRAIN: Mr. Murray, you're next, I'm sorry. COMMISSIONER MURRAY: Not a problem. Under 3, there's a series A through F, and they all seem legitimate, but I was just wondering, in the case of E, inasmuch as that -- unless I'm missing a nuisance there that's already in the code, is it necessary to have that, or is that just the intent there, being to -- in a recitation of reasons? Okay. MS. F ABACHER: Yes, I believe so. That's just to spell out some of the considerations that they -- criteria that they could use. COMMISSIONER MURRAY: I know. And I understand that. But what was going through my mind is our very frequent statement about redundancies. Now, I have no objection to it remaining in there, but I pose that question in case anybody else has any issue. COMMISSIONER SCHIFFER: Let me say something on that, Bob. Bob, that's going to be -- you really -- that is going to be a major problem. For example, there are a lot oflittle shopping centers, the small strip stores, they're designed for square footage to meet exactly their parking. That never intended when these things were built or even current that the guy who threw, you know, two, four tables out in Page 108 January 9,2008 front of a store, there's parking provided for it. So I think one of the consequences of this ordinance, if it leaves what it states in the title, is that you're going to find a lot of people in violation, especially the mom and pops, with their tables out front. Because there's no design that people have extra parking to handle those tables. CHAIRMAN STRAIN: But they're not -- but when you go in and you do an SDP for a restaurant or something, you're basing your concurrency impacts on the amount of seating you have and this meeting space. But now you're telling me that that's okay but we don't count the stuff outside? We have to count the stuff outside. COMMISSIONER SCHIFFER: Oh, Mark, at what you described, we do. I'm not talking about that. I'm talking about the guys who's recently their coffee shop, their ice cream shop, their little luncheonette have thrown tables outside. Especially since the smoking ordinance kind of caused them to do that. Those tables were never anticipated when the building was built. Anyway, it's -- if you want to -- again, the only -- I had no concern over that within the title that we were given. I have a concern over that if we leave that title. Anyway. COMMISSIONER VIGLIOTTI: I agree. COMMISSIONER SCHIFFER: It's a point, a statement. CHAIRMAN STRAIN: Okay. Any other questions on 44? (No response.) CHAIRMAN STRAIN: I have one consideration for 3, and it would be instead of -- and after F, you might want -- maybe we need a G. You can refuse or revoke a permit for all the following things, but what if someone was operating without a permit repeatedly, and don't we want to be able to refuse, if they're operating illegally? Isn't that a violation of our code and they didn't show good intent, do we want to include anything for that occurrence? COMMISSIONER MURRAY: That's interesting. Page 109 January 9, 2008 COMMISSIONER SCHIFFER: What you're assuming is that they now would pass everything except for the fact that they have a legacy of operating without a permit. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: I mean, I think if they pass, they pass. Aren't we bringing them into compliance? CHAIRMAN STRAIN: Well, that's fine. I was just throwing it out on the table. If it's not an issue, then it's not an issue. COMMISSIONER MURRAY: Would that send them back to BZA or something? COMMISSIONER SCHIFFER: I mean, you know, we have in here that people have to -- people have to register within a certain amount of time. The assumption is they all are operating without a permit. CHAIRMAN STRAIN: Okay, we'll let it go. I thought I'd throw it on the table. COMMISSIONER MURRAY: No, it's -- MS. FABACHER: Excuse me. For existing businesses you're talking about? CHAIRMAN STRAIN: Well, I think a while back there was an issue where the Registry or one of the -- or Ritz or somebody came in and was having an event and they just didn't get permits for it. They put tents up and they repeatedly didn't get permits for it, and they fought the county on it. So they finally came in and got permits. But I think part of the ability for staff to assess whether or not a company deserves the permit is their actions in the past that they -- that would historically occur. And that's the only thing I was suggesting. But if it -- I'm not married to it, so -- MS. F ABACHER: And also, I'd like to say that these criteria don't mean -- the board still would have the discretion just to weigh these things. And it doesn't necessarily mean because you didn't have enough parking that they could deny you, that they would be Page 11 0 January 9,2008 compelled to deny you. CHAIRMAN STRAIN: Okay. Well, let's move on to Page 45. Anybody -- Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I want to address that. If there's not enough parking and we're going to give them a permit, no questions asked, and you had just said that well, we don't have to deny them, or -- you have a choice whether to deny them -- MS. F ABACHER: I'm talking about -- COMMISSIONER VIGLIOTTI: -- parking? MS. F ABACHER: I'm talking about the board. COMMISSIONER VIGLIOTTI: Okay. MS. FABACHER: Not us. COMMISSIONER VIGLIOTTI: Okay. CHAIRMAN STRAIN: Okay, Page 45. Anybody have any questions on Page 45? COMMISSIONER SCHIFFER: I do. COMMISSIONER MURRAY: You knew I did. CHAIRMAN STRAIN: Mr. Murray, then Mr. Schiffer. We'll take turns here this time. COMMISSIONER MURRAY: You knew I did, and I raised the question. You said you were going to address it. CHAIRMAN STRAIN : Well, no, I said we'll get to that page. So if you want to -- COMMISSIONER MURRAY: Oh, I thought you were going to address it as well. CHAIRMAN STRAIN: No, I just meant get to that page. COMMISSIONER MURRAY: Okay. Well, my concern here is -- this is particular to Lely Resort area as an example. And that was recently approved and they were given amplified sound till 10:00. And I just wanted to interpose here to see whether or not that's meaningful to us relative to this. And then I guess would -- if this ordinance were passed, would that subordinate that PUD issue? Page 111 January 9,2008 MS. ISTENES: Well, my recommendation would be every site and situation be considered on its own merit. So I'm not sure I would look back at action taken at a specific place in Lely as being applicable to something up in North Naples, for example. It's just every situation is different. As far as usurping the PUD, I guess I'm not -- my initial answer would be no, but I'm not sure I quite understand your concern. COMMISSIONER MURRAY: Well, let me amplify, if! may. Hopefully I can. They sought and got amplified sound for that PUD. And it's right by a lake, and that sound is going to resonate right across that lake and up into -- and it's up till 10:00 at night, and it is amplified sound. So it's in contradiction to what the intent of this is, if passed. CHAIRMAN STRAIN: Maybe I can offer some help, Susan. The noise ordinance has limitations on hours in which noise can be produced to a certain level. This is an operating hours ordinance, is it not? Or is this -- aren't we talking about operating times? MS. ISTENES: Um-hum. CHAIRMAN STRAIN: Okay. So I think what the -- how the two interact is the noise has to stop at a certain time by the noise ordinance, but the operations can continue, meaning if they're serving food or doing whatever, as long as they're not creating the noise until the times on here. Is that what we're trying to say? Is that what this ordinance is trying to say? MS. F ABACHER: Well, it's really confusing, because we're looking at the copy that was written when this version of the amendment contained music or entertainment. Now if we're looking at a permit with or without music, I'm wondering if we shouldn't defer to the code on this. It's a thought. That's what makes it so complicated, we've been through so many iterations of these different -- trying to solve this problem. COMMISSIONER MURRAY: Well, I'm not trying to introduce Page 112 January 9,2008 additional problems, but I'm trying to anticipate what the future would be. For instance, if we were to use this little box here where it talks about the times, they're different than the times that was allowed under that PUD. And that's one factor. The other factor is we also had something like 2,500 lineal feet away someplace, I thought was in here, yep, and that's I think certainly not -- and that's a mixed use. So it's okay for the mixed use. But the sound's going to resonate and it's going to get to people's homes a lot closer than 2,500 feet. So all I'm trying to do is add something, not muddy it up, but add something that we should be cognizant of. MS. ISTENES: My recommendation would be at this point to leave those time frames in. I mean, we're recognizing that the noise again doesn't come -- and I hate bringing it up, but Stevie Tomatoes, the noise is from the people, it's not from the T.V.'s. You can't hear the T.V.'s over the people. And there's probably 15 of them out there, all on different channels, so it doesn't even make sense to turn them up. They don't need an amplified sound permit for that situation. So that's kind of what -- I mean, we need to focus on that aspect of it as well. That's why I would recommend keeping that in. CHAIRMAN STRAIN: This is trying to regulate the time in which the outdoor use could be utilized. MS. ISTENES: And it ties back to the use, as you -- you know, as we're trying to regulate it, as you stated before. CHAIRMAN STRAIN: So you could have noise on the outside going up to the times the noise ordinance allows it, to the extent the noise ordinance allows it. But the use of that area has to cease at these hours. So then the stuff moves inside. So if you're within 1,000 feet of residential area, by 11 :00 at night not only have you already ceased for over an hour, probably, the noise part of it, but you're now moving inside at 11 :00 and you can't do any more outside noise, period. COMMISSIONER MURRAY: I understand all of that. And my Page 113 January 9, 2008 -- I guess my -- the other side of that question then is since it was stipulated in that PUD, it would be 10:00 p.m., and this is more opportunity, would they be able to come -- I assume they'd have to get a permit as well. Would they be able then to operate outside of the PUD's definition? Would they be able to operate until 12:00 a.m.? CHAIRMAN STRAIN: Was the PUD for noise or was it for use? And if it was for use, the applicant agreed to it. So they'd be bound by what they agreed to at the public meeting. COMMISSIONER MURRAY: That's what I assumed, but I just wanted to qualify, I wanted to understand that. CHAIRMAN STRAIN: I mean, unless -- COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: -- staff says differently. MS. ISTENES: I'm not familiar with the language in the PUD-- CHAIRMAN STRAIN: I'm not either. MS. ISTENES: -- so I really can't give a definitive answer. COMMISSIONER MURRAY: Well, I'm going to rest my case on that. But I brought the issue up for qualification, in case it was important to anybody. CHAIRMAN STRAIN: Okay, let's move to page-- COMMISSIONER SCHIFFER: Wait, you forgot me. CHAIRMAN STRAIN: Go ahead. Sorry, Brad. COMMISSIONER SCHIFFER: The only issue I really have -- or two issues. One is where it states the issuance of one finding of violation. I think that should be replaced with a finding of violation. Otherwise I'll be saying, it doesn't apply to me, I have five violations, you know. And then down at the bottom, I think we should make sure that what we're describing there is within the PUD or mixed use thing. For example, if there's a -- if you have an outdoor seating area and it's within 1,000 feet, as mentioned above, I think it still applies. It's only within the PUD or the mixed use area that they're exempted. Page 114 January 9,2008 And remember, we're going to move this up to the applicability section. So I think that the only thing that's missing in this description is the clarification they're talking about within the residential use. It does apply to things that are adjacent to the PUD or the mixed use, correct? MS. ISTENES: That's my understanding, based on your last recommendation. COMMISSIONER SCHIFFER: That wouldn't be fair if it wasn't MS. ISTENES: Right. COMMISSIONER SCHIFFER: Okay, that's it. CHAIRMAN STRAIN: Okay, Page 46. Oh, Mr. Kolflat, sorry. COMMISSIONER KOLFLAT: Yeah, I've got one question on that violation. Does the violation mean that there's been a violation granted by the -- or judged by the Board of County Commissioners? Or does it mean a filing of the complaint, or does it mean a decision made to staff? MS. FABACHER: I'll let Jeff handle that. MR. KLATZKOW: It's generally going to be the Code Enforcement Board or special master, ifthere's a finding of violation. COMMISSIONER KOLFLA T: Thank you. CHAIRMAN STRAIN: Okay, Page 46. Mr. Murray? COMMISSIONER MURRAY: On the very top, is it planned use district or planned use -- planned development? I don't know, I'm not familiar with planned use district as a PUD. Planned use development? MS. F ABACHER: You're correct. It's a typo. Thank you. CHAIRMAN STRAIN: Any other questions on Page 46? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: I did this a while ago. In 3, the Page 115 January 9, 2008 county's providing a notice. Are you actually physically providing it or you're providing the wording that you want on that? The way it's worded, it says the county -- a notice provided by the county. MS. FABACHER: Are you talking about posting of that sign? COMMISSIONER SCHIFFER: Well, I mean, are you going to hand these guys a sign and say -- MS. FABACHER: Well, that was put in when we were contemplating the music aspect, to let people know what the law was and give people who were complaining about the noise a way to reach us and know that they had a right to complain I believe was the original intent. MS. ISTENES: I think that was the recommendation of this board. But if it says the county will provide the notice, then I'm sure we'll want to put a standard notice together that would be consistent with every use that has this type of permit. COMMISSIONER SCHIFFER: I mean, my question is simpler than that: Are you actually physically going to say here, post this, or are you going to say here are the words that I want you to put on the sign? MS. ISTENES: No, we'll just give them something to post. Just like you would put like a sticker on your sign when you post on __ COMMISSIONER SCHIFFER: Like an elevator. MS. ISTENES: -- when you get a permit. It would be kind of the same concept. COMMISSIONER SCHIFFER: That's it. Thank you. CHAIRMAN STRAIN: Any other questions on 46? (No response.) CHAIRMAN STRAIN: Okay, Catherine, I think we've gone through this pretty much in detail. The bullets that I read out from the e-mail that you had sent to me will be incorporated. Those changes need to be drafted and to us by tomorrow afternoon so we can finish it on Friday. Page 116 January 9, 2008 MS. F ABACHER: Okay. CHAIRMAN STRAIN: If you can find a way to get that done. Now, I previously suggested we meet at 11: 15, I said we needed about an hour to finish and suggested we take a break then. Well, the hour's up, we're not finished. We're going into another one that could take some length of time. I don't think it will take an hour. But Cherie', are you okay? THE COURT REPORTER: Yes, thank you. CHAIRMAN STRAIN: Okay, we'll try to get through it as easy as we can. The next part of this is the submittal requirements for site plans, and it begins on Page 53 with a text actually on Page 54. The changed text begins on Page 55. Now, in order to short circuit some of this, I'm going to tell you all what I had talked to staff about to help move this forward. In discussing this with staff, the biggest two issues with them has been -- one of the largest issues has been how they were to be able to judge this; by what basis can they suggest that somebody be thrown into a process that is rather cumbersome for someone, and at staffs discretion. In order to take the discretionary process out of it, in talking with Catherine and Susan, some of the ideas that came out of that is the discretion would apply subject -- or in triggering the following issues: If there's outdoor seating, if there's outdoor entertainment, if there's amplified sound, and depending on the hours of operation. Those will be the discretionary measures that staff -- or suggested to be -- that staff could then look at this and say based on any of those issues, they could be incompatible with the surrounding area and therefore we're going to put you into this next level of scrutiny. And Catherine, elaborate if I've not gotten everything right. MS. FABACHER: Well, no, I wasn't quite clear on this point. My understanding was instead of giving unlimited discretion on every Page 117 --'--,-,- "-'-"-'--'~'-" .---..-.--.,.----...- January 9, 2008 use, let's address the outdoor seating areas. Because if you look on Page 55 at F, they discuss water management areas and so forth. Our thought was to maybe add another item under the G, H, I, J that would deal without door serving areas specifically and that would say -- that would give the zoning director discretion if -- to require __ let me finish this before I get to the other thing -- to require additional buffering, to require some limitation on the hours of -- well, I don't know about the hours of operation, but to require sound attenuation devices, or even at the site plan level during the SDP process give the zoning director discretion to have them move to another part of the development, say, in the case of Stevie Tomatoes, if we had the outdoor seating indicated on the site plan and we saw how close it was to the residential, we could say put this one on the interior side of this building into the subdivision and away from the residential is where I thought we were headed. Just to get away from the huge latitude of __ and the impossibility to anticipate any non-compatible use. Susan, what are your thoughts? MS. ISTENES: I think it was a two-step process. First was identifying where we could use our discretion, and I think Commissioner Strain outlined those situations where we could use our discretion. And then the second part of the process was what you reiterated, we then -- we can't just reject the plan if it meets all the codes and ordinances of the county, but we could use our professional discretion in requiring additional buffering or noise attenuation devices or suggesting a relocation, things like that. So yes, that -- CHAIRMAN STRAIN: Right. MS. F ABACHER: Do we agree that we're not just going to leave it wide open to non-compatible uses but we say specifically outdoor serving areas, Susan? MS. ISTENES: Yes. CHAIRMAN STRAIN: Well, that's what-- Page 118 January 9, 2008 MS. ISTENES: That's what -- MS. F ABACHER: Okay, I just wanted clarification. CHAIRMAN STRAIN: Let's back up and try to move forward with this in a little bit of organization. First of all, we're on Page 55. We have underlined, strike-through paragraph starting with number five. Now, in reviewing those paragraphs, when we get to 5-A, that's where the problem comes in about staffs discretion in refusing to approve a site plan. The intent of the discussion I had and the suggestions of the limitations of discussion we had would be to insert those limitations or any others, or none, if the board felt that way, somewhere after 5-A, like 5-A-i, and say the discretion will be -- discretion of staff will be based upon the following, and then you list those four. Boom. Now staff has a reason why they can pull something in pursuant to this new language and say there's a problem with it. Then we go on from there. Now, I know we didn't get that far in our discussions; we basically threw the concepts out on the table. MS. F ABACHER: Right. CHAIRMAN STRAIN: How did you see these things fitting in? I mean, you're suggesting adding them up above under A, right? MS. F ABACHER: I'm suggesting making it -- between I and J and discuss outdoor serving areas specifically, and losing the idea that the zoning director would be omniscient and could look at the site development plan and find any use that was incompatible. CHAIRMAN STRAIN: I'm sorry, I didn't -- see, I didn't catch that. I thought that we were trying to still work with the underlying language, but refine it enough to make it something you could utilize so that you're not left out there with -- making arbitrary -- making something that you could be accused of making arbitrary decisions on. And that's by defining it through some kind of -- you know, defining discretion, more or less. MS. ISTENES: Well, defining the situation in which you would Page 119 ~_"~""_'_"'m_'.__"d_"_ _~____'___ January 9, 2008 exercise discretion. And the situation is if you have outdoor seating or if you have amplified sound or if you have outdoor entertainment, which are really all kind of tied together in a way. And then if your hours of operation -- CHAIRMAN STRAIN: Right. Mr. Murray? COMMISSIONER MURRAY: On the process involved in this discussion here, if a developer doesn't like a decision that's drawn because they believe it's subjective or whatever, the next course of action is to have them appeal it to the planning commission, correct? CHAIRMAN STRAIN: No, they appeal it to the BCC, don't they? MS. ISTENES: BZA. COMMISSIONER MURRAY: Well, I thought on this one -- on this one in particular we were in the loop. MS. F ABACHER: It's true. MR. KLA TZKOW: It goes to the planning commission. CHAIRMAN STRAIN: Oh, on this one it does, you're right. COMMISSIONER MURRAY: That's what I thought. MS. F ABACHER: And we -- and I don't think we had any problem with that process. COMMISSIONER MURRAY: And I didn't have any problem with that either. That's a little different than the other. And we may actually get the other one back anyway. But what I'm driving at is if I'm a developer and I come and I'm concerned and I think you're being subjective, I have to now consider well, do I want to go to the planning commission and have nine other people being subjective. So I wonder if we're not adding a dimension that we have to by adding a lot of other detail. I recognize that we want to make standards as clear as possible, but the thought that came through my mind was every time you add a list of things, there are bound to be things you didn't include. And that means another PUD -- I'm sorry, another LDC amendment at some Page 120 -~.__.,.._-~-_..._...-.-~.__._.._.- "-~""--"""""-'-'._-'-'----",-,---~,-- January 9, 2008 future date. That's all I'm going with. So I don't know what your thoughts are there. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: The intent of this proposed ordinance is to give the zoning director the ability when something pops up that was completely unexpected, no matter what it is, that nobody anticipated during the planning process, she now has the ability to say wait a second, this wasn't what everybody thought you were going it do, and it's not compatible with the neighborhood. I would suspect that it would be a very infrequent time this would ever be actually utilized, and to temper any zoning director's exuberance on this one, it's going to go to the planning commission and the planning commission at that point in time is going to say wait a second, you're being silly, this is an appropriate use. If we're just going to say simply say this is only for the outdoor seating area, I don't think you need this, because you're going to be permitting that use anyway. COMMISSIONER MURRA Y: Right. I thought this has another intent. MR. KLATZKOW: This has another intent. COMMISSIONER MURRAY: I thought I read it -- MR. KLATZKOW: This is the fail-safe ordinance where when something comes through we say wait a second, this is not what we thought was going to be there when we approved this. MS. ISTENES: It's not fail-safe. COMMISSIONER SCHIFFER: No. MS. ISTENES: Not with over 370 PUD's and a Land Development Code and a GMP that have detailed regulations. It's unrealistic to expect staff to identify -- MS. F ABACHER: Anticipate. MS. ISTENES: -- that in every situation. CHAIRMAN STRAIN: See, and I have seen what's happened Page 121 January 9, 2008 when staff has tried to exercise their administrative review with some flexibility and the outcome become negative to some people. It gets elevated to a political cause that becomes negative then to the newspapers and all kinds of people. And so my thrust was simply trying to put this into some manner where staffs not so badly exposed for either not making the right call or for making a call they thought was right when somebody else thought it was wrong. Because it could go either way. They could make a call and be too strict and then be called out on the carpet for that, because somebody with, say, the right ear could make a lot of noise over saying look what they're doing to me now. Look how long it took me to get through the system for no reason. And the opposite side, a guy could go through with a restaurant and look as harmless as ever, they don't call him out on it and he puts out a box to call patrons and he's calling patrons every five minutes and waking the neighborhood up till 2:00 in the morning. Then they've got the other side they'll get hit for that action too. So if we put in the criteria by which they can review more definitive, and if we have to expand on that criteria in the future, that may be better than the ramifications if we leave it too open-ended now. That's why I had tried to find some aim for this thing. Anyway, if the board isn't in agreement with it, so be it. But that was the attempt. And we can go forward from there. And with that in mind, we're on Page 55. So how does everybody think about the language? Brad? COMMISSIONER SCHIFFER: I have some questions. And just a statement to start, Jeff. One of the concerns I have is that if a project gets through this process, you would have a really difficult time going back to somebody and stating that, you know, you can't have that use. Because you really have gone through an overly scrutinized use. If I make it through the gate, you'd have a tough time I think bringing me back. Page 122 January 9, 2008 Anyway, the first thing is the 30 days from the first designation of a use. In an SDP, and Susan would know this better, the uses are essentially laid out. Like for example, let's enjoy Stevie Tomatoes some more, he would be in there as an accessory use. He's going to build a restaurant. We have no idea whether that's a restaurant that's going to attract mimes or the AC/DC crowd. So how would -- if I discussed that that's going to be a restaurant, how would anybody in the department know what that restaurant's going to be in terms of disturbing the neighbors in this case? And if I'm in the SDP, I really don't know who my tenant is. I could be negotiating with quite a few tenants, hopefully. MR. KLA TZKOW: The issue with Stevie Tomatoes isn't the use, it's the location. Had Stevie Tomatoes been on the other side of the shopping center where the Park Place Diner is now, we wouldn't be here discussing this issue right now. COMMISSIONER SCHIFFER: But in the original construction drawings for Stevie Tomatoes, there's a small patio that they even __ they enlarged that use compared -- I think through SDP. So I mean, you wouldn't have caught it at this time anyway. MR. KLATZKOW: When it became apparent -- and I don't even know if staff would have caught this one, to be quite frank. When it became apparent that there was an outdoor bar there with televisions, okay, I think the board would like to have given staff the ability to say wait a second, you need to take this particular use and put it on the other side of the shopping center. COMMISSIONER SCHIFFER: And I think that that could become apparent during the building permit process. In other words, the SDP's been approved, the uses have been outlined. This is a restaurant use. It did show some small seating. But when the permit came in, which is way past this time, is when I think the problem would have been flagged. So -- and also -- well, anyway, the other problem, going down in Page 123 January 9,2008 there, it says that if you have a problem with it, you can refuse the site development plan. Can't you -- wouldn't it be better just to refuse that use within the site development plan and let the guy continue on and argue over the use, not argue over his total site development plan? MR. KLA TZKOW: That would be appropriate. COMMISSIONER SCHIFFER: Okay, so I think in there we have approval of such use within the site development plan I think would be good to add. MS. ISTENES: What if it's a standalone building? COMMISSIONER CARON: Yeah. COMMISSIONER SCHIFFER: Well, then, he's got a building with -- you're not allowing the use in it. MS. ISTENES: Then we can't approve the site plan. COMMISSIONER SCHIFFER: I think in that case you could. But if I have a shopping center and you're arguing over one tip of it, I think I should be allowed to go through and we'll argue that down the road. COMMISSIONER CARON: I think that's covered in C. COMMISSIONER SCHIFFER: You do? COMMISSIONER CARON: Right? COMMISSIONER SCHIFFER: Not yet, no. Because I want to go down the road before I go to the planning guys. And I guess the thing and hopefully when we see, Mark, stuff laid out, you know, the concept of potential is pretty difficult, I think to, you know, to really substantiate. CHAIRMAN STRAIN: Well, what I was going to -- what goes with -- I gave you some of the criteria, but in leading up to that, number five is titled non-compatible uses. If you recall, when we talked about the eagle and the first review of that eagle thing, we got this reaction to the eagle with a whole long laundry list of changes to the code to react to one eagle nest being cut down on one dead tree. And the practical sense was let's just get plain and simple and say this Page 124 January 9, 2008 is -- you can't cut down anymore trees with eagle's nests in them. Period. Well, this is the same kind of thing. We have an issue with Stevie Tomatoes. That's the only issue in the county. That's the only time it's come up in a long period of time. Who knows when it will come up, if ever agam. But I was going to suggest that where it says non-compatible uses, number five, term this thing outdoor serving areas with or without outdoor entertainment. And then this becomes an additional level of scrutiny for what 10.02.03 is, submittal requirements for site development plans. So now when you submit an SDP that has an outdoor serving area with or without outdoor entertainment, then this section kicks in and staff can exercise its discretion limited to the four elements that pertain to that kind of activity. And then down the road if we -- I mean, what else is the problem? We don't know any, so we're building a code around a problem that may never exist in another category agam. Why don't we focus on the category that was the problem, fix it, and if anything else comes along, fix it in the future instead of creating so much regulation that we don't even know what we're covering. Ms. Caron? COMMISSIONER CARON: Yeah, I think your four items just allows staff to ask questions, key questions. And that should be the point. Then they'll ferret out what -- you know. CHAIRMAN STRAIN: And they're put in the submittal phase now so that it gives them the highlight to trigger it in the submittal phase. COMMISSIONER SCHIFFER: But Mark, a problem we members of the board have is that you have a list of things. We don't have that. COMMISSIONER CARON: Right. Page 125 January 9, 2008 COMMISSIONER SCHIFFER: We have what staff gave us, and once again, foolishly, we worked on that, you know. CHAIRMAN STRAIN: Well, because of the holiday season there was no time. COMMISSIONER SCHIFFER: Right, so why don't we -- let's just back off. I mean, if we're discussing things and then it's but wait a minute, this revision's better, let's just stop, send us the revision, we'll come back and visit it again. CHAIRMAN STRAIN: Well, the problem is I still want to go through everybody's concerns so that as much of this can be laid out in the next 24 hours so that on Friday afternoon we can finish with this. Because it's got to go to the BCC on the 16th and we've got to have some kind of recommendation to give to them. So I'd like to follow through with any further comments and questions, including the verbal renditions I've given to you, and let's just get through this and let staff come back with something by tomorrow afternoon and we'll do the best we can Friday afternoon to give the BCC something. COMMISSIONER SCHIFFER: But if your revision points that-- you know, fixes it, don't point that out, because we'll see it when it comes. I mean, it's tough to second guess the revision. MS. F ABACHER: Excuse me, but staff needs the direction from this board. CHAIRMAN STRAIN: Well, I think-- COMMISSIONER SCHIFFER: Well, Mark gave it to you yesterday. MS. FABACHER: No, no, we discussed-- CHAIRMAN STRAIN: No, I did not. MS. F ABACHER: He did not. CHAIRMAN STRAIN: -- Brad. I did not do that. I was trying to help expedite today's meeting by coming up with suggestions to respond to the questions I knew would come up because we've been Page 126 -"-'-~--"'-'''-''- ... ---_.._,>--,-.._,,-_..._-~- January 9, 2008 doing this for a year. And if I don't anticipate the questions, we'll never get through these meetings. We have been beating this thing to death for a year. COMMISSIONER ADELSTEIN: That's right. CHAIRMAN STRAIN: We've got nothing to show for it. So yes, I spent time with staff. I tried to come up with things. They did not incorporate them into the language because they couldn't have on my recommendation. I always have criteria in my meetings with them. Everything I discuss comes back before this board. It's suggestions to help this board move faster and more efficiently, that's all. COMMISSIONER MURRAY: Mark, in that regard, I know -- not adding to the frustration here, but if you -- is it possible for you to broadcast those out? It may not be that everybody could get that, but __ CHAIRMAN STRAIN: No, Sunshine Law wouldn't allow it and COMMISSIONER MURRAY: For you to broadcast out your recommendations? CHAIRMAN STRAIN: I wouldn't even want to take a chance on telling you what I think about something bye-mail or anywhere else. That just puts us in a terrible spot. COMMISSIONER MURRA Y: Okay. But then that makes it difficult, because you read and I listen and I'm trying to think and integrate. You know, you're comfortable with it, I'm not. I'm not aware of it. And it doesn't -- and it creates a frustration for you and for anybody else that has the limitations I have. I respect what you're attempting to do, certainly, but I didn't-- are we -- this is not a year we have been dealing with this. MS. FABACHER: Yes. COMMISSIONER ADELSTEIN: Oh, yeah. CHAIRMAN STRAIN: Oh, yeah. COMMISSIONER ADELSTEIN: It certainly is. Page 127 January 9, 2008 COMMISSIONER MURRAY: A full year? MS. F ABACHER: Yes. COMMISSIONER MURRAY: I thought this was introduced in September. Okay. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Mark, this is an exception. This whole thing's been an exception. So everybody is trying to do what they have to do to try and make it work. And I appreciate the fact of you spending your time doing that. I think at this point here we should just move forward, get it done as best we can by Friday and finish it up Friday and go from there. CHAIRMAN STRAIN: That's what we're trying -- I agree, and that's what we're trying to get to. So I think what we need to do __ COMMISSIONER VIGLIOTTI: Would you like a motion to make that happen? CHAIRMAN STRAIN: -- is keep -- no, we need to keep giving our comments. Let's finish the two pages. We get done with these two pages, we're past it, there's no motion for today. But staff then will have enough direction to produce a new draft for us to hopefully finish Friday afternoon. COMMISSIONER MURRAY: I have one other thought. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: I'm getting the distinct impression, and I'd like it to be corrected ifI'm in error, that staff believes that this is probably -- that they can't handle this, because there's too many things that they'd have to do. Ifthere's a basic problem between the two, then it's -- I'm not sure it's resolvable. Is that somebody that needs to be related? MS. ISTENES: I don't understand the-- COMMISSIONER MURRAY: Well, you said you had 160 PUD's or something of that -- Page 128 January 9,2008 MS. ISTENES: Three hundred seventy-- MR. SCHMITT: 376 I believe we're at-- COMMISSIONER MURRAY: Okay. Well, that-- MR. SCHMITT: -- somewhere plus or minus two, three. COMMISSIONER MURRAY: Well, that was the -- that was the signal I had that I thought you were indicating that it might be a lot more workload for you than you thought was reasonable, or possible. And ifthat's the case, then foisting this on you may be inappropriate. On the other hand -- MS. ISTENES: My objective is that we're successful in meeting the board's intent of protecting the citizens. And I don't think we can do that, because three hundred -- under the current draft, because 376 PUD's is like having 376 mini LDC's. They're all unique. And I've got a limited number of staff. And to be quite frank with you, the staff that reviews site plans are not my highest level of staff, and we spend a lot of time training and working with them on issues. And an lot of times they learn through -- I don't want to say -- MR. SCHMITT: School of hard knocks. MS. ISTENES: Mistakes, but the school of hard knocks. COMMISSIONER MURRAY: On-the-job training. MS. ISTENES: On-the-job training. And I just -- I'm not sure that we're going to be as successful as I think the board wants to be, because it's way too much discretion, and I don't want to cause difficulty for our customers who come in and they get five different answers from five different planners. It's just too broad. COMMISSIONER MURRAY: I want to thank you for your being candid. I needed to understand that. I don't know where that puts us exactly, but it certainly gives it some thought for me. CHAIRMAN STRAIN: Well, I think that you've heard some suggestions, we've talked about moving non-compatible use language January 9, 2008 to outdoor serving areas with or without outdoor entertainment, focusing and refining the paragraph to do that, adding criteria for your discretion so it's not so discretionary. And that's Page 55. Is there anything on Page 56? COMMISSIONER SCHIFFER: Yeah. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer? COMMISSIONER SCHIFFER: In D, shouldn't that be the board of appeals, not the Board of County Commissioners? MR. KLATZKOW: No. COMMISSIONER SCHIFFER: It should be the Board of County Commissioners? MR. SCHMITT: Brad, can I just point out, we do have in the provision, just to put things in perspective, if there's a decision made by the environmental staff that there's a -- basically an applicant and the environmental staff are at a point where they agree to disagree and it then may come to my level. But the applicant can bring that point to the EAC. And the EAC is the ruling body. You would be a similar ruling body in this case. I think it's -- COMMISSIONER SCHIFFER: Right. MR. SCHMITT: -- if the board approves it, you would be the one to make a decision, and you could do that. Don't forget, this is during the SDP review you're making a ruling as to the applicability of the code. If they can appeal that decision to the board, I think that's where Jeffwas coming from on this. It's a similar situation we do with the EAC. COMMISSIONER SCHIFFER: My question wasn't that. I like the -- my question was does it actually go to the board of appeals, which is the commissioners, or does it go to the Board of County Commissioners? That's my only question. MR. SCHMITT: Oh, I got it. CHAIRMAN STRAIN: It goes to the BCC, from what Jeff just said. Page 130 January 9, 2008 COMMISSIONER SCHIFFER: And that's what Jeff-- CHAIRMAN STRAIN: Right. That's the short answer. On that same page up at the top -- MR. SCHMITT: Yeah, goes to the BCC. CHAIRMAN STRAIN: -- we referred a couple times to an amicable solution. Why don't we just say should the parties be unable to reach a solution? And then the paragraph for the last sentence or the paragraph above it, second line, earliest convenience to discuss an attempt to amicably resolve. Why don't we just say to resolve? Let's just take the word amicably out and drop it. That just makes that language a little cleaner. MR. SCHMITT: You don't like those fluffy adjectives? CHAIRMAN STRAIN: I'm worried that not everything's going to be -- COMMISSIONER MURRAY: He's not for fluff. COMMISSIONER VIGLIOTTI: Usually one of them doesn't walk away amicable anyway. CHAIRMAN STRAIN: Well, then from -- after D we get into Section E, and I think that's a good suggestion, perhaps more appropriate noise ordinance. Why don't -- I think we already -- why doesn't that go there? If it involves decibel levels and distances and __ why don't we just put that -- suggest that -- MR. SCHMITT: That ordinance is currently in rewrite. CHAIRMAN STRAIN: Right. MR. SCHMITT: I think we just got the first draft -- CHAIRMAN STRAIN: Good timing. MR. SCHMITT: -- from the consultant. So-- CHAIRMAN STRAIN: Okay, are there any other questions on this one before we get a draft of it tomorrow afternoon? (No response.) CHAIRMAN STRAIN: Okay. Mr. Klatzkow, can we make a Page 131 January 9, 2008 motion to continue to a time uncertain Friday afternoon, or do we have to pick a specific time? Or Friday, let's say. MR. KLATZKOW: No, you can move it to Friday. CHAIRMAN STRAIN: Okay. Is there a motion to continue this meeting to -- COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: -- January 11th? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: After our Cocohatchee discussion? COMMISSIONER MURRAY: I move to that. After the -- yes. CHAIRMAN STRAIN: Motion made by Commissioner Murray MS. F ABACHER: Sorry. Mr. Chair, we didn't ever make a decision on the open house sign amendment. And I think we've worked that out, we just need a recommendation from you. CHAIRMAN STRAIN: Well, we need to see the language-- COMMISSIONER VIGLIOTTI: We need to see the language. CHAIRMAN STRAIN: -- that -- why don't you bring it back on the 11 th scratched up and we can just -- that will be an easy one to finish up there. COMMISSIONER SCHIFFER: Real easy. CHAIRMAN STRAIN: We're just making sure that the language that was recommended to be changed got changed. We're not changing any substance that Mr. Poteet was worried about. We're simply rearranging it so that it reads better. COMMISSIONER MURRA Y: Moving paragraphs. MS. F ABACHER: Deliver that to you with this one? CHAIRMAN STRAIN: Tomorrow afternoon. MS. F ABACHER: Okay. COMMISSIONER SCHIFFER: And Mark, everything's coming via e-mail? CHAIRMAN STRAIN: Right. Page 132 January 9, 2008 MS. F ABACHER: Yeah. COMMISSIONER SCHIFFER: So everybody knows that. CHAIRMAN STRAIN: Do you get e-mail? Everybody can take e-mail. Everybody nodded their head yes. COMMISSIONER SCHIFFER: Including Tor. MS. F ABACHER: Is that okay with you? COMMISSIONER SCHIFFER: Yeah, he's good. MS. F ABACHER: Because you can always pick up hard copies at my office. I don't think I can get it couriered to -- CHAIRMAN STRAIN: There was a motion by Mr. Murray to continue until after the Cocohatchee hearing tomorrow. Is there a second? COMMISSIONER SCHIFFER: I'll second. CHAIRMAN STRAIN: Second by Brad. All in favor? COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. We will see you all Friday morning at 8:30 to start out with the Bert Harris claim. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:42 p.m. Page 133 January 9, 2008 COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman These minutes approved by the board on or as corrected as presented Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 134