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CCPC Minutes 03/20/2008 R March 20, 2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida March 20,2008 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 REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed-Caron Tor Kolflat Paul Midney Bob Murray Brad Schiffer Robert Vigliotti David J. Wolfley ALSO PRESENT: Ray Bellows, Zoning & Land Development Review Joseph Schmitt, CDES Director Jeffrey Klatzkow, Chief Asst. County Attorney Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, MARCH 20, 2008, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTA1NING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - FEBRUARY 7, 2008, REGULAR MEETING 6. BCC REPORT- RECAPS - JANUARY 22, 2008, LDC MEETING; JANUARY 16,2008, LDC MEETING 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. Petition: PUDZ-A-2007-AR-II723, Amy Turner and/or Tammy Turner Kipp, represented by D. Wayne Arnold, AICP, Q. Grady Minor and Associates, P.A., and Richard D. Y ovanovich, Goodlette, Coleman and Johnson, request a rezone from Planned Unit Development (PUD) to Community Facility Planned Unit Development (CFPUD) for the Vanderbilt Trust 1989 PUD, to allow development of a maximum of 200 assisted living, continuing care retirement community, nursing horne, retirement community and/or independent living facility units for persons over the age of 55, to be developed at a 0.6 floor area ratio. The subject 7.8'" acre property is located on the north side of Vanderbilt Beach Road (CR 862), approximately 1/4 mile east of Livingston Road (CR 881) in Section 31, Township 48 South, and Range 26 East, Collier County, Florida. (Coordinator: Kay Deselem) 1 B. Petition: PUDZ-2006-AR-I0875, Q. Grady Minor, representing KRG 951 and 41, LLC, is requesting a PUD Rezone from the Agricultural (A), Commercial Convenience (C-2), General Commercial (C-4) and Artesa Pointe PUD zoning districts, to the Commercial Planned Unit Development (CPUD) zoning district for the Tamiami Crossing CPUD, which would allow a maximum of 235,000 square feet of commercial uses. The +25.45 acre property is located in Section 3, Township 51 South, Range 26 East, Collier County, Florida. (Coordinator: John-David Moss) HEARD ON 3/20/08 CONSENT MOVED TO 4/17/08 C. The 2006 Transmittal Cvcle Growth Manal!ement Plan Amendments Exhibit "A" Text Changes as per CCPC Recommendation to BCC for hearings held on Monday, March 17, 2008 for Petitions CP-2006-5, CP-2006-7, CP-2006-8, CP-2006 -9, CP-2006-1O and Monday, March 24, 2008 for Petition CP-2006-1, all prior to special BCC hearing scheduled for April 15, 2008. 9. ADVERTISED PUBLIC HEARINGS A. Petition: V A-2007-AR-12668, B&B Cash Grocery Stores, Inc., represented by Charlie Martin, requesting a Variance of 17 feet to replace an automobile service station canopy that was destroyed by Hurricane Wilma; and a Variance of seven feet to relocate two fuel pump dispensers. The IO.81-acre subject property is zoned Village Residential (VR) and General Commercial (C-4)/Main Street Overlay Subdistrict (MSOSD) and is located at 401 1st Street South, South lmmokalee Heights Unit, Section 4, Township 47 South, Range 29 East, Collier County, Florida. (Coordinator: John-David Moss) B. Petition: CU-2007-AR-11394, The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, represented by Bruce Anderson of Roetzel and Andress, is proposing a Conditional Use of the Commercial Professional and General Office (C-l) Zoning District with a SR29 Commercial Subdistrict Overlay (C-I-SR29-COSD) and the RSF-3 (Residential Single-Family) Zoning District for a Church/Place of Worship, pursuant to LDC Section 2.04.03, Table 2. The 16.8-acre site is located at 635 State Road 29, in Section 32, Township 46 South, Range 29 East, lmmokalee, Collier County, Florida. (Coordinator: John-David Moss) 10. OLD BUSINESS A. Discussion ofBD-2007-AR-12154, Saundra Clancy-Koendarfer Boat Dock Extension, to determine and put on record the reason for motion for denial. II. NEW BUSINESS II. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 4/3/08 cepe AgendaJRB/sp 2 March 20, 2008 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the March 20th meeting of the Collier County Planning Commission. If you'll all please rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL CHAIRMAN STRAIN: Thank you. If the secretary will please take the roll call. COMMISSIONER CARON: Mr. Kolflat? COMMISSIONER KOLFLA T: Here. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Midney? COMMISSIONER MIDNEY: Here. COMMISSIONER CARON: Ms. Caron is here. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Murray? COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: And Mr. Wolfley. COMMISSIONER WOLFLEY: Here. COMMISSIONER CARON: We have a full house. CHAIRMAN STRAIN: Aha. Item #3 Page 2 March 20, 2008 ADDENDA TO THE AGENDA Addenda to the agenda. I would like to suggest -- talk about the Monday, April -- or March 24th meeting. First of all, how many people are planning to make it to that meeting, 5:05? Everybody? Okay, Mr. Kolflat? COMMISSIONER KOLFLA T: No. CHAIRMAN STRAIN: If you need some assistance, we have a bus and we could arrange to get you here if -- COMMISSIONER KOLFLA T: I have another appointment. CHAIRMAN STRAIN: Okay. Speaking of the bus, I think we need to work out the details on that, because it's only two working days away. MR. SCHMITT: I believe David sent an e-mail last night with the details. Did you get it, or no? CHAIRMAN STRAIN: Well, in did -- I tied in early last night, but I didn't see it then. MR. SCHMITT: All right, let me pull it up here. CHAIRMAN STRAIN: Did you see it? COMMISSIONER CARON: I didn't look this morning. CHAIRMAN STRAIN: I think the only concern is where do we meet the bus. And if we know that, we're all set. And what time. Maybe as we go on, Joe, you could kind of fill us in when you find it. Approval of minutes -- MR. BELLOWS: Commissioner Strain? CHAIRMAN STRAIN: Yes, sir. MR. BELLOWS: I had one other addenda to the agenda-- CHAIRMAN STRAIN: Certainly. MR. BELLOWS: -- I'd like to put under old business. An item that you brought up a few meetings ago talking about electronic readers and maybe a shared point access. Page 3 March 20, 2008 CHAIRMAN STRAIN: Thank you. I was just talking to Kady before we came in this morning about another thought I needed to talk to IT about on that same subject. So it was a good point. Under the chairman's report I was going to mention to everybody that there is progress being made, it's just slow. There's other things -- too much readings come in the way. Item #5 APPROVAL OF MINUTES - FEBRUARY 7,2008, REGULAR MEETING Approval of the minutes from the February 7th regular meeting. Is there acknowledgement? Mr. Schiffer? COMMISSIONER SCHIFFER: I'll move to approve. CHAIRMAN STRAIN: Is there a second? COMMISSIONER ADELSTEIN: Second. CHAIRMAN STRAIN: Seconded by Commissioner Adelstein. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? Page 4 March 20, 2008 (No response.) CHAIRMAN STRAIN: Motion carries. COMMISSIONER SCHIFFER: And Mr. Chair, that electronic version works out really well. CHAIRMAN STRAIN: Oh, good. COMMISSIONER SCHIFFER: So that's good. CHAIRMAN STRAIN: I thought so, too. Yes, Ms. Caron? COMMISSIONER CARON: I was actually going to say the opposite. I thought it was very difficult to read 298 pages on -- off the screen that way. I -- CHAIRMAN STRAIN: Well, I mean, we can -- I hope that the staff -- COMMISSIONER CARON: And especially where you have to do it 75 pages at a time. COMMISSIONER ADELSTEIN: Yeah. CHAIRMAN STRAIN: They're going to continue to post them there, but if any on the commission feel they need them in hard copy, you can -- COMMISSIONER CARON: Yes, absolutely. CHAIRMAN STRAIN: -- always request them to be sent. So-- MR. BELLOWS: We also e-mail you a version so you don't have to go through 75 at a time of the minutes. If you tried -- Sharon informed me she e-mailed the minutes also. COMMISSIONER CARON: Oh, yes, this last time. MR. BELLOWS: Yes, this last time. COMMISSIONER CARON: Right. MR. BELLOWS: That might be easier than going through the clerk's site and send 75 pages at a time. COMMISSIONER CARON: Absolutely. CHAIRMAN STRAIN: When you're off line -- I mean, off the county's internal land, it does take a long time to get past each page, so Page 5 March 20, 2008 MR. BELLOWS: Yeah. CHAIRMAN STRAIN: -- I can understand your frustration. MR. BELLOWS: So the e-mail might be better. COMMISSIONER CARON: And is it the intent to continue that so we'll always get an e-mail? MR. BELLOWS: Yes, you'll always get an e-mail. COMMISSIONER CARON: Oh, then that part works fine. MR. BELLOWS: Okay. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Mr. Chair, on that? CHAIRMAN STRAIN: Yes, sir? COMMISSIONER SCHIFFER: One thing that was confusing, and it might have been because there was the -- was the dates. There's more minutes in there than the ones that we approve now. For example, there's two meetings after the 7th. So I think we just have to be careful that we look at the agenda and make sure that we're reading the minutes, because there are some since our meeting that we're approvmg. COMMISSIONER CARON: Good point. CHAIRMAN STRAIN: Well noted. Item #6 BCC REPORT - RECAPS - JANUARY 22, 2008, LDC MEETING; JANUARY 16.2008. LDC MEETING Ray, the BCC reports? MR. BELLOWS: Yes. The board on March 11th, they heard the Brandon RPUD that was approved 4-1 with Commissioner Coyle objecting. They approved it subject to the CCPC recommendations. The Napoli Village RPUD was also approved as a 4-1 on the Page 6 March 20, 2008 regular agenda. And that was approved subject to the CCPC stipulations. And a variance for the Della Rosa was approved on summary agenda. CHAIRMAN STRAIN: Okay, thank you. Item #7 CHAIRMAN'S REPORT Now the chairman's report. So I'll update you on the electronic issue. I found this -- two of these really neat note pads that you can actually write on, and they take all your notes and they keep it and you can move it to your computer, do whatever you want with it. The problem is I haven't found one yet that can take a flash drive with a PDF program on it, accept that into it and then annotate the program. These are more like note pads that you can write on and use and stuff like that. So I haven't finished looking. I'm still trying to find a source, or a solution, and I'll just keep at it as time permits, so -- other than that, we'll move on to the consent agenda. We have one item -- yes, sir, Mr. Schmitt? MR. SCHMITT: Giving you information, since we're on administrative. The van will leave from Community Development at 2800 North Horseshoe, of course. Please meet where the garage is behind -- there's a covered walkway that's the entryway into Comprehensive Planning. That's where they'll meet. The time to meet is 3:30. And they will leave no later than 3:45. Hopefully we'll return to CDS about 9:30 and that's pretty much the plan. David says please, no smoking allowed in the van. CHAIRMAN STRAIN: Thank you, that's good. MR. SCHMITT: As a courtesy he said, please, no smoking. Page 7 March 20, 2008 Anyways, that's 3:30, leaving CDS about 3:45. We'll meet right there at the back entryway at the Comprehensive Planning Department where you go into that -- back in that section. CHAIRMAN STRAIN: To get there, when you turn into Developmental Services off of North Horseshoe Drive where the actual entrance is, which is on the far west side of the parking lot, instead of making a left into the parking lot, you would still park up there, but if you walk straight back where the road would continue to the parking garage, right there on the left-hand side is a walkway and there are a limited number of parking spaces. But that's the walkway you're talking about, right? MR. SCHMITT: That's correct. And if you want to park in the garage, we'll get you into the garage. CHAIRMAN STRAIN: Except my truck's too high, so -- MR. SCHMITT: Well, you can't drive those big trucks around. CHAIRMAN STRAIN: Fuel economy, what are you saying? MR. SCHMITT: So everybody, that's the plan, and we'll have a IS-passenger van. CHAIRMAN STRAIN: Great. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: 3:30. 3:30 Monday, yes, sir. MR. SCHMITT: 3:30. CHAIRMAN STRAIN: Yes, sir? COMMISSIONER SCHIFFER: Joe, will we be able to park in the garage rather than walk around the whole building, or -- MR. SCHMITT: We'll have somebody there to get you in the garage to park. CHAIRMAN STRAIN: Okay, thank you. That's going to be a great help. Item #8A Page 8 March 20, 2008 PETITION: PUDZ-A-2007-AR-11723, VANDERBILT TRUST 1989 PUD Now, we'll go into the consent agenda. We have one item on our consent agenda. It's Petition PUDZA-2007-AR-11723. I certainly have a lot of -- not a lot, but I got some concerns about the document. COMMISSIONER MURRAY: So do 1. CHAIRMAN STRAIN: If anybody wants to go ahead. Mr. Murray? COMMISSIONER MURRAY: Okay. I'm looking at Exhibit A for the Vanderbilt Trust, Page 1 of 10, and I see that assisted -- under A, number one, assisted living facilities. I thought that it was portrayed to us exclusively as independent living facilities. CHAIRMAN STRAIN: I have the document. I brought all the old documents from that meeting. I didn't see that one as one that we had asked to have changed, Bob. COMMISSIONER MURRAY: Well, that's okay, I'm just checking. And then also I wondered why we still kept under B, number four, model units and on-site leasing sales and maintenance facilities. CHAIRMAN STRAIN: We never requested during the meeting to have those taken out. COMMISSIONER MURRAY: To have these taken out, right. CHAIRMAN STRAIN: No. So they can't take them out then. COMMISSIONER MURRAY: Okay. And then the only other thing is then maybe I -- on this one here on the Page 2 of 10, the water management is in there, and I don't remember if that became an issue for us. I thought that water management -- CHAIRMAN STRAIN: My notes don't show us making a comment -- having anything changed on that page, Bob. We can only Page 9 March 20, 2008 go by -- on the consent agenda by what -- COMMISSIONER MURRAY: What we did. CHAIRMAN STRAIN: -- we stipulated on at the last meeting. COMMISSIONER MURRAY: I'm cognizant of that. But I'm just checking with -- making sure. Well, anyway, that was the issue that I had then, the use of the word assisted, because I thought it was portrayed as I understand. CHAIRMAN STRAIN: Okay, Ray, whoever's making notes, on Page 3 of 10. MR. BELLOWS: Three of10. CHAIRMAN STRAIN: And the applicant's representative I think was Wayne Arnold, who's here. I think they agreed that per subdivided lot would be stricken from the double asterisk on the bottom, and it's not. I think that was part of our stipulations. And if you turn to Page 6, from my notes on the stipulations, we indicated that deviation based on testimony received, deviation number one was not needed and it was to be taken out. But I find it's still there. If anybody remembers it differently, please speak up, but that's the notations I have. MR. BELLOWS: No, I do remember on Page 3 that per subdivision lot would come out, and I do agree that it was my recollection that deviation one would come out. CHAIRMAN STRAIN: And then if you turn to Page 8, B-3, that was to be stricken too, because there was no -- the way it was worded didn't make any sense and we all agreed it wasn't needed. It was something they would work out on their own. So with those -- those are three things I found were missing out of the stipulations that we had made last meeting. And I think they -- unless someone has evidence to the contrary, we should certainly go back to what was stipulated. MR. BELLOWS: Well, I'll work with Kay and the applicant and find out what happened. Page 10 March 20, 2008 CHAIRMAN STRAIN: Okay. Anybody else have anything? COMMISSIONER MURRAY: I would like to understand what the -- I've raised the issue of assisted. Was I in error on that? CHAIRMAN STRAIN: There's no notes -- I have no notes that we stipulated anything about that item, Bob. I mean, we can't stipulate it now because the meeting was closed -- COMMISSIONER MURRAY: Well, I'm cognizant of that, but I was really clear in my mind that that was supposed to be an independent living. CHAIRMAN STRAIN: Go ahead, Ms. Caron, did you have something to add to that? COMMISSIONER CARON: Yeah. I think, Mr. Murray, you're correct that it's going to be an independent living facility, but I -- we didn't ask them to take out ALF, because if they decided to do that there would be even stricter regulations on them for an ALF facility, so -- COMMISSIONER MURRAY: That's fine. COMMISSIONER CARON: -- it was unnecessary to take it out. COMMISSIONER MURRAY: Thank you. COMMISSIONER WOLFLEY: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir, Mr. Wolfley. COMMISSIONER WOLFLEY: Yeah, I specifically asked that, and I believe it was -- was it Mr. Y ovanovich, or who was it? I can't remember who it was. COMMISSIONER MURRAY: Yeah. COMMISSIONER WOLFLEY: But I asked the question, I said, I see ALF in here and I see ILF in here, and he said no, that was staff report. It is strictly an ILF. And he said due to the fact that ALF takes state regulations. COMMISSIONER MURRAY: Right. COMMISSIONER WOLFLEY: And I said, well, my documents Page 11 March 20, 2008 are different than yours. CHAIRMAN STRAIN: Okay, but you're missing -- you all are-- the point is, did you during the motion make -- or add to stipulations one that said remove the words assisted living facility? Because if you didn't, we're not here to discuss or rediscuss this case, we're here strictly to see if the stipulations that we actually voted on were implemented into this document, nothing more. And if -- unless you have a stipulation, then we can't go there. Now, with that, is there a motion to recommend approval of the consent agenda as noted? COMMISSIONER SCHIFFER: So moved. CHAIRMAN STRAIN: Made by Mr. Schiffer. Is there a second? COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: By Mr. Murray. Any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. MR. SCHMITT: Mr. Chairman, one clarification? CHAIRMAN STRAIN: Yes, sir. Page 12 March 20, 2008 MR. SCHMITT: You did approve that with the changes, so you CHAIRMAN STRAIN: Yes. MR. SCHMITT: It will not have to come back? CHAIRMAN STRAIN: It doesn't need to come back, I don't think. MR. SCHMITT: We would just note the changes and make the required changes. CHAIRMAN STRAIN: I'm sure that if you were to look at the tape, you'd see that the changes were consistent with the stipulations that we just recognized -- MR. BELLOWS: Yes. CHAIRMAN STRAIN: Everybody remembers them, so -- MR. BELLOWS: And we'll send you a courtesy copy, too. CHAIRMAN STRAIN: That would be nice, yeah. Mr. Schiffer? COMMISSIONER SCHIFFER: Just curious, when does this go before the board, Ray? MR. BELLOWS: April 8th. COMMISSIONER SCHIFFER: Okay, thank you. Item #9A PETITION: CU-2006-AR-9337, SOUTH GROVE LAKE CHAIRMAN STRAIN: Okay, the next regular agenda item is Petition CU-2006-AR-9337, Barron Collier Partnership for an earth mining operation in the South Grove Lake area. Will all those wishing to testify on behalf of this petition please rise to be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRMAN STRAIN: Are there disclosures on the part of Page 13 March 20, 2008 planning commission? (No response.) CHAIRMAN STRAIN: I had a brief conversation with Mr. Varnadoe. I only had one issue on it, which I certainly will bring up today for the record. Other than that, hearing none others, we'll proceed with the applicant's presentation. Mr. Varnadoe? MR. VARNADOE: Thank you. Zoom in as much as you can. For the record, George Varnadoe on behalf of the applicants, Barron Collier Partnership, LLP, and AMUL T, LLC. And I passed out a disclosure slip on AMUL T, LLC, since they were not an owner at the time the application was filed, and later became a joint owner of the property in question. We're here today seeking approval of a conditional use -- not that close, Ray, back it on out -- for a sand mine. I have several consultants here in various disciplines to answer any questions you might have. But I'll make the presentation. I'd like to give you some background on the property and the project, and put it into perspective. Ray, zoom it out. The property's located in the rural land stewardship area overlay district and is zoned agriculture. To orient you, the blue area you see is Camp Keis Strand. The green area surrounding that are habitat stewardship areas. The light blue or grayish areas are permitted water retention areas that serve ago And the pinkish area is what is designated as open area. Property's located east of Camp Keis Strand. As you can see, it's the part that's marked in red. It's on the north side of Oil Well Road, immediately adjoins Oil Well Road. It's south of the town of Ave Maria. And the land to the west, north and east are all owned by the applicants. And there's ago to the south, so I don't think we have a Page 14 March 20, 2008 compatibility issue. The conditional use is 158.7 acres, of which a maximum of 131 will be excavated. Let me try to -- you probably actually see it better, at least I can, on the one we have on the board here. The conditional use area is outlined in blue. It's 158.7 acres. The excavation will result in two lakes, about a 42-acre lake on the west, an 89-acre lake on the east, separated by a proposed secondary access road to Ave Maria. And this small .41-acre cypress dome, which is the only native vegetation on-site and which will be preserved and surrounded by a 25- foot created upland forested buffer. The 89-acre east lake will provide water management for Oil Well Road when it's widened. It also provides water management for some agricultural there to the east where it's shown here. The 42-acre lake on the west will not provide water management, so there will be no outside drainage into that lake. 30.2 acres are in a habitat stewardship area, of which 25 will be excavated. With the exception of the little cypress dome, .41 acre, the rest of the property is in active agriculture, citrus on the larger lake and row crops in the -- on the western lake. We're asking to go to 35-foot depth, which is the same depth that we had the lakes at Ave Maria, and we experienced no problems with those. One of the main purposes of the excavation is to provide fill for Oil Well Road, pursuant to a developers contribution agreement we have with the county. And that portion of the western lake that's in the habitat stewardship area will blend into and become part of a restoration plan that's being proposed for the habitat stewardship area that will consist of establishing some marshes for wading bird habitat and some upland habitat to provide a wildlife corridor to the north and south in what is now farm fields. And if you look right there, that is the proposed wildlife crossing Page 15 March 20, 2008 that will be put in during the expansion of Oil Well Road. I would note that the EAC unanimously recommended approval, that water quality in the area will improve because there's no water quality for Oil Well Road now, it goes directly into a ditch in the Camp Keis Strand. Blasting: It's not contemplated. The soil borings didn't show that we need it. But it's not precluded, because those are notoriously inaccurate. The permits for the property are in place. The ERP permit has been issued by South Florida Water Management District. The Corps and nationwide permit has been issued. The consumptive use permit has been issued, and the restoration plan has been approved by the South Florida Water Management District. Staff is requiring a -- either an eight-foot berm or six-foot opaque fence around the excavation that will be removed when the excavation is completed. And I was going to talk about staff stipulations four and five, but Nick and I have -- Nick Casalanguida and I have talked about some additional or substitute stipulations which I think he wants to present, Mr. Chairman. Unless you have any questions from me, that is our project. CHAIRMAN STRAIN: Okay. Thank you. We will certainly entertain questions. Mr. Midney, then Mr. Kolflat. COMMISSIONER MIDNEY: Owning as much land as this corporation does, why was it necessary to extend this proj ect into the habitat stewardship area? MR. VARNADOE: Well, Mr. Midney, I think you have to understand why the habitat stewardship area was created in that area in the first place. Because that is an active farm field. But when you look at the overall -- when we were going through the rural land stewardship plan -- and you don't see it very well -- there were certain areas where Camp Keis Strand was constricted in terms of the width Page 16 March 20, 2008 of the flow way. This was one of them. So the environmentalist, in particular, Nancy Payton and Brad Cornell, asked that we include this farm field as a habitat stewardship area with the hopes that it could be restored in the future to widen the flow way, number one, and number two, to provide some upland habitat for wildlife movement. And that's part ofthe restoration plan that we are proposing, Mr. Midney. And I would say that Nancy Payton was at the EAC meeting and spoke in favor of the project. COMMISSIONER MIDNEY: But you haven't answered my question. Owning as much land as the corporation does, and as much land as there is, why was it necessary to go into this area that had been designated habitat stewardship area? MR. VARNADOE: And I tried to, Mr. Midney. I'm sorry in didn't answer your question. The lake on the left is part of the restoration program, blends into wading bird habitat. That lake should be fairly pristine because there's no water management going into it. It ties into a marsh area we're creating just to the west of that, and then into some other restoration we are performing. So it's part of an overall plan. COMMISSIONER MIDNEY: But you could have put your excavation outside of the HSA. MR. VARNADOE: And done no restoration there, yes, sir. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, the agenda indicates the subject property as 169.57 acres, but the staff report and your presentation indicates 158.7 acres. That's a difference. Why is the difference? And which one is correct? MR. VARNADOE: The 158.7 acres is correct, Mr. Kolflat. COMMISSIONER KOLFLAT: Was the notice to advertise containing the size of the area? MR. VARNADOE: The -- I don't have the advertisement. The notice of the public hearing, the signs on the property, were correct. Page 17 March 20, 2008 And the acreage is 158.67 acres pursuant to that sign. COMMISSIONER KOLFLAT: Well, my concern is where did that area that's in the agenda come from? Because that differs. And if that was used, we're not on the same agenda. MR. VARNADOE: Say that again, Mr. Kolflat? I'm sorry. COMMISSIONER KOLFLAT: The agenda indicates a different area. The agenda indicates 169.57 acres. CHAIRMAN STRAIN: Maybe the -- George, one of the staff people are behind you. Willie, if you were responsible for the advertising, can you straighten us out? MR. BROWN: Yes, sir. The -- I believe there were a total of four reviews for this project. It's been around since 2006. This is obviously 2008. In the first two reviews, in the legal description the 168 or 69 acres you referred to was in the legal description. The project's been down-sized. It's less than what was initially proposed. Again, the signs were posted on the property, and it's also in your staff report. I don't foresee an issue here. As far as what was advertised, I don't recall. I would have to go back and look at the legal ad. I think we caught it. Hopefully we caught it in time before it was published. But because this is not more, it's less, again, I don't think it would be a problem. CHAIRMAN STRAIN: Well, I think Mr. Kolflat's very specific question is did the legal advertisement -- what was the acreage in the legal advertisement? I think that's what he's trying to get to. And if you don't have that answer, maybe -- MR. BROWN: I don't have the legal advertisement with me. CHAIRMAN STRAIN: -- someone can find that out before we're finished with this? Is that where you're trying to go, Mr. Kolflat? COMMISSIONER KOLFLAT: Yeah, that's where I'm going. CHAIRMAN STRAIN: I thought so. Page 18 March 20, 2008 Okay, well, we'll hopefully have an answer before we vote. Are there any other questions of the applicant at this time? (No response.) CHAIRMAN STRAIN: Okay, hearing none, we'll entertain presentation from the county staff. MR. BROWN: Good morning, Commissioners. Willie Brown, Principal Planner with the Department of Zoning and Land Development Review. The petitioner's presentation is consistent with the application on file with the department of zoning. Staff is recommending approval, subject to eight conditions of approval. I'd like only to emphasize a few points pertinent to the review process and then cover the zoning staffs eight recommendation -- eight recommended conditions of approval. As you can see from the rural and agricultural assessment stewardship overlay map -- CHAIRMAN STRAIN: Willie, can you get a little closer to your speaker? She's having trouble hearing you. Thank you. COMMISSIONER MURRAY: I think there's something wrong with the mic. MR. BROWN: Maybe I should use the other one. Is this better? CHAIRMAN STRAIN: Yeah. MR. BROWN: Okay, as you can see from the map on the visualizer, this is a rural and agricultural assessment stewardship overlay map. Only again to emphasize a few of the points I already made pertinent to the review process, then I'll again go over the zoning staffs eight recommended conditions for approval. The subject property is not in a flow way stewardship area or FSA. The property is not within a water retention area. Portions of the site to the west are within a habitat stewardship area designated SSA-9. The SSA-9 designation permits earth mining activities with Page 19 March 20, 2008 the natural resource index value of less than 2.1. Okay, here's the resolution. Resolution 2007-36, which was adopted by the BCC on February 13th of2007, approving stewardship sender area nine for -- the portion of the property within the HSA. In accordance with Policy 3.7 of the rural land stewardship area overlay district, earth mining is allowed as a conditional use within HSA lands with the NRI value of 1.2 or less. The subject property is located in section 17 and 18 of township 48, range 29. The map to the left shows the area of the subject property. The map -- the color coded legend to the right shows the natural resource index or NRI values. The upper left corner of section 18 is outside of the project's boundary . You can see how we arrived at NRI values of less than 1.2 on the property. Okay, all of the subject property is again designated rural land stewardship area, open lands. This designation allows earth mining upon meeting the following criteria: One, uses shall be upon submittal of an EIS, which the applicants have done, which demonstrates the clearing of native vegetation has been minimized. Uses shall not significantly and adversely impact listed species and their habitats. And three: Uses shall not significantly and adversely impact aquifers. On March 5th of this year the EAC recommended approval of this petition to the BCC, subject to the following conditions: One, approval of a mitigation plan to compensate panther habitat. Two, approval of a conservation easement for on-site wetland preserve. Page 20 March 20, 2008 Three, approval of the final location of a littoral shelf planting area. And four, capping all on-site wells below the surface to prevent cross-contamination of aquifers and surface waters. CHAIRMAN STRAIN: Mr. Brown-- MR. BROWN: I'm just about done. CHAIRMAN STRAIN: Well, no, you just put that -- that was the EAC's recommendation? MR. BROWN: Yes, sir. CHAIRMAN STRAIN: That's not what's been made -- that's not what's in our packet. MR. BROWN: I think there's one recommendation, one stipulation that was mistakenly overlooked in the staff report. The last one should have been added to the staff report. CHAIRMAN STRAIN: Would you mind putting it up -- MR. BROWN: Sure. CHAIRMAN STRAIN: -- one more time so we could take a minute to look at it again, now that we know it's not been added, or it wasn't in our packet. It would be the last one, I believe. MR. BROWN: Yeah. It was an oversight on my part. But that was added as a stipulation by the EAC. CHAIRMAN STRAIN: Isn't that also a requirement of South Florida Water Management District? MR. BROWN: Yes, sir, it is. CHAIRMAN STRAIN: So if they didn't stipulate it, it still would be done. MR. BROWN: Yes, sir. CHAIRMAN STRAIN: That's what I thought. Thank you. MR. BROWN: Okay, the subject property is zoned rural agricultural in accordance with LDC Section 2.04.03. Sorry that's not on there evenly. Page 21 March 20, 2008 Okay, in accordance with LDC Section 2.04.03, table two, which this is on the visualizer, earth mining is permitted as a conditional use in the agricultural -- rural agricultural zoning district. Right, here are the eight conditions of approval -- I'm sure you've read over those, I won't go over them with you now -- recommended by the zoning staff. Lastly, on December 11th of2006, a neighborhood information meeting was held. No one from the public attended the meeting. Also, no letters of support or opposition have been received from neighboring property owners. If there are any questions, I'll entertain those at this time. CHAIRMAN STRAIN: Thank you. Are there any questions? Mr. Midney? COMMISSIONER MIDNEY: Yeah, did the developer get development credits for establishing the HSA that allowed him to develop somewhere else in exchange for doing that? MR. BROWN: I'll have to defer to the applicant. MR. VARNADOE: The SSA-9 is outlined in red. And yes, credits were taken off that. But the 30.2 acres that are in both the conditional use and the SSA were taken down only the first two land use layers, so the conditional uses for earth mining were not removed. So we did not get as many credits as we could have if we'd have removed those uses. COMMISSIONER MIDNEY: Thank you. CHAIRMAN STRAIN: Any other questions of county staff at this time? Ms. Caron, then Mr. Schiffer, then Mr. Kolflat. MR. BROWN: Yes. COMMISSIONER CARON: Yes, I just wanted to know if staff agrees with the EAC conditions and would add them to your eight. MR. BROWN: Sure. There is no opposition to the EAC's recommendation. Page 22 March 20, 2008 COMMISSIONER CARON: Thank you, that was my question. MR. BROWN: Those would be implemented prior to the issuance of an excavation permit. The CU and excavation permit work together. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Mr. Schiffer? MR. BROWN: Yes, sir. COMMISSIONER SCHIFFER: Willie, what's the need for the eight-foot berm around the excavation? Or six-foot fence. Is it just to keep it out of sight, or what? MR. BROWN: The six-foot opaque fence or eight-foot berm I believe is protection provided around the lakes so that -- am I correct about that? I believe it's for protection so that nobody comes in and goes into the lake. That's essentially why it's provided. That's my understanding of it. I think it's also a requirement of the excavation permitting process. CHAIRMAN STRAIN: Brad, that was the same concern I've had that I was going to bring up as well, so I think you're on a good point there. COMMISSIONER SCHIFFER: That's all. CHAIRMAN STRAIN: Do you have a quick question for Mr. Kolflat? COMMISSIONER CARON: No, I just wanted to follow up on that. CHAIRMAN STRAIN: Go right ahead. COMMISSIONER CARON: Ifin point of fact that fencing or berming is there for protection so that potentially no child falls into this lake or whatever, then why would you require it to come down after the fact? The lake's still going to be there. MR. BROWN: Habitat foraging. You have panthers in the area, you have wading birds. Those are the species listed in the area. Page 23 March 20, 2008 CHAIRMAN STRAIN: You're digging a-- COMMISSIONER CARON: I absolutely understand, but you're just -- CHAIRMAN STRAIN: Deeper hole. COMMISSIONER CARON: -- digging a deeper hole and it's not -- you know, the whole requirement isn't quite making any sense. CHAIRMAN STRAIN: Brad, did you finish your -- COMMISSIONER SCHIFFER: Yeah, just didn't make any sense. CHAIRMAN STRAIN: I have to agree. COMMISSIONER SCHIFFER: -- and it's still not making any sense. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. Did environmental services verify that the NRI was 1.2 or less? MR. BROWN: Environmental staff, as well as zoning staff. That was the purpose of putting the table on the visualizer for you, to show you how we arrived at determining the values were less than 1.2 on the land. COMMISSIONER KOLFLAT: But environmental services division verified that? MR. BROWN: Yes, sir. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: When an applicant comes in to get SSA credits -- or SRA credits, they can decide at that time how many credits they want based on how many layers of land use they take off. And they purposely -- the program is structured so that if they want to leave certain land use layers on, they don't get as many credits. So basically the credits that were obtained from this area of this SSA-9 did not include any credits for the possibility of earth mining, because they left that layer in place. Is that a fair statement? MR. KLATZKOW: That's correct. Page 24 March 20, 2008 CHAIRMAN STRAIN: Thank you. MR. BROWN: Thank you. CHAIRMAN STRAIN: As far as the eight-foot high berm and the opaque fence, I have to agree with Mr. Schiffer and Ms. Caron, it just doesn't make sense. With the Jones Mining pit and places like that that were contiguous to existing residential made a lot of sense, but out here in the middle of a field surrounded by land owned by these people, to think that a kid's going to crawl across all those open fields and finally wander in the lake and then -- but they wouldn't do it after the lake was completed and the fence taken away just doesn't make any sense, Willie. And I certainly think that item six ought to be stricken as a condition. And that would be something as we go through this I would recommend that we remove. It's a needless expense, both to put it up and to take it back down. And we don't need to be putting needless expenses on people. And I think the last thing that we had heard earlier, items four and five were suggested to us that they maybe be changing as a result of communications with the transportation department. So I'd certainly like to get their input. I think we're -- MR. BROWN: I'll let Nick comment on that. MR. CASALANGUIDA: Good morning. For the record, Nick Casalanguida with Transportation. This is a unique project and it's tied into a developer contribution agreement with Ave Maria, and it's providing material for the adjacent roadway project. So when staff reviewed that, they weren't aware of some of the agreement materials that were included in that. So as a point of clarification, if I could go down through a few stipulations. And we've discussed it with the applicant and he seems amenable to these. 100 feet of throat depth must be maintained in the current and future condition of Oil Well Road. CHAIRMAN STRAIN: Okay, are you -- you're recommending a Page 25 March 20, 2008 change then to say number four, or you're adding another stipulation? MR. CASALANGUIDA: I would say whatever's there I'm going to cover all of them, so just wipe those out and we'll just go through these, if we could. CHAIRMAN STRAIN: Well, the problem is that we're going to have to vote on this, and we're going to have to have the stipulations very stated for the record so that it gets in the consent agenda next time around. And do you have a written handout or something you can give us? MR. CASALANGUIDA: It's written. I need to clean it up. I just wrote it this morning. So I'd like to read it and if there's an issue I'll clean it up, okay? So 100 feet of throat depth for the entrance road must be maintained in the current and future condition of Oil Well Road. Second stipulation would be a 75-foot entrance radius is required for the access on Oil Well Road until Oil Well Road is expanded to include a turn lane. The radius can then be reduced to 25 feet. Third one would be quarterly monitoring reports will not be required until the project begins the sale of material to the public. Material provided to Ave Maria and the adjacent road project should not be considered public sale. A letter must be sent to the zoning director and transportation planning director prior to the sale of materials to the public. So we know that this operation is starting to produce materials that are going to the public. And the last one, upon commencement of public sale of material the applicant will begin to provide quarterly monitoring reports which detail the daily activity of mining operation and sale to the general public. The applicant will provide a $1.00 heavy vehicle charge for every loaded vehicle exiting the pit provided with the quarterly Page 26 March 20, 2008 monitoring report paid to the BCC for road maintenance in lieu of inspecting the adjacent roadway and making repairs to the adjacent roadway. CHAIRMAN STRAIN: Nick, did you not get this before today's meeting, this packet? MR. CASALANGUIDA: No, sir, I did. I did not do the additional review, and when I reviewed it this morning and I had a discussion with Mr. Varnadoe yesterday, we did not contemplate that this would be doing public sale in the future. We thought it was strictly going to be for the road project and for Ave Maria. CHAIRMAN STRAIN: Well, when I read this, my first reaction was that of all places in the county to put a fill pit, this is probably one of the most logical. MR. CASALANGUIDA: I agree, sir. CHAIRMAN STRAIN: And most harmless. I don't have any -- I may not have any problems with your additional recommendations, but I would like to have had the opportunity to read those ahead of time so I could think about them and then look at any corresponding documentation which you now have said these relate to, namely, the DCA agreement. By walking up in front of us today and presenting these, you've not afforded us that opportunity. It's concerning because there's -- I see otherwise no reason, nothing wrong with this application. But I'm not inclined just to accept your recommendations without reviewing those myself. So I'm a little concerned about that. I don't know how to overcome it right now. Especially when we don't have any time. We're here today and we've got to get it done. MR. CASALANGUIDA: Sir, you have my apology. And again, staff was not aware this would be for public sale in the future. And we discussed that with the applicant in the last couple of days. And the applicant seemed amenable to these recommendations. CHAIRMAN STRAIN: Are all the circumstances that involve Page 27 March 20, 2008 off-site sale of the fill, which means they're going to be on -- first of all, if this fill pit was a standalone pit like it is in the middle of nowhere, where else would they use it besides taking it away from the site? You're thinking it was all going to be strictly for the road system? MR. CASALANGUIDA: When this project originally came forward, it was supposed to be for -- my impression was it was just for Ave Maria and the road project. Now my understanding, ifthere's additional material left after that's done it will go to public sale. CHAIRMAN STRAIN: Okay. Has staff -- county staff reviewed this? Not just you, but has county regular staff and the environmental, the zoning department and all the rest, reviewed it under that light? MR. CASALANGUIDA: Actually, I think they reviewed it under the most critical light. I think they looked at it as all public sale. They did not contemplate, I believe, that it was going to go just to the roadway project or to Ave Maria. CHAIRMAN STRAIN: Okay. Well, that would be an important consideration to know that at least it got that finalized scrutiny. Mr. Brown, would you confirm that statement on record? MR. BROWN: I hadn't heard of the recommendations until today, just as you did, so -- CHAIRMAN STRAIN: No, it's not the recommendations, we're asking you to confirm, did you review this under the aspects of it being a commercial fill pit, open for sale to anyone, or did you review it under the idea that it was strictly for use by Ave Maria and the road system? MR. BROWN: Oh, correct, that was the purview under my review, that it would only be used for those purposes, for the road and for Ave Maria. MR. SCHMITT: Well, let me -- MR. KLATZKOW: Hold on, hold on. MR. SCHMITT: -- understand for the record that -- Page 28 March 20, 2008 CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: -- from a zoning perspective, engineering perspective, that's irrelevant. We look at it -- COMMISSIONER MURRAY: They wouldn't review it under -- MR. SCHMITT: -- as a -- whether it's a commercial. To us where the fill's going is not an issue. It still -- MR. BELLOWS: It's going off-site. MR. SCHMITT: -- operates as a -- it's going off-site. So it's treated as an off-site project, and that's the way it's reviewed for environmental, as well as engineering, as well as zoning. So where the fill is used is irrelevant from our perspective. It may be for Nick in transportation, but it has no bearing on our review. CHAIRMAN STRAIN: Thank you. MR. BELLOWS: That's correct. CHAIRMAN STRAIN: Mr. Varnadoe? MR. VARNADOE: I'd just like to clarify the record. The application very clearly said the fill would be primarily used for Oil Well Road. It was never any discussion, never any statements that it was going to be strictly for Oil Well Road or for Ave Maria. It did say primarily, because that was -- that's where the first priority is. But any fill that's after that was always contemplated being for public sale. CHAIRMAN STRAIN: Thank you. Ms. Caron, did you -- COMMISSIONER CARON: Yeah, back to that issue, someone provided us this traffic assessment. Did that come from you, Mr. Varnadoe? I think it did. MR. VARNADOE: Indirectly. Not me personally, but yes, from the applicant, yes, ma'am. COMMISSIONER CARON: Okay, thank you. Well, on it here -- I mean, I've heard this a number of times, and it's also in our staff report, that this fill was going to be primarily for the Oil Well expansion. Page 29 March 20, 2008 Well, if you look at that particular sheet of paper, it says the total excavation is going to be almost six million cubic yards. Of that Oil Well Road is only going to be getting a million-one. It also lists Camp Keis for another 500,000, 550,000. So when you add the two county road projects together and subtract it from the total cubic yards you expect to take out of here, we're talking about 30 percent potentially for the primary -- what we all thought was the primary use, and 70 percent to be sold. MR. VARNADOE: And when the -- COMMISSIONER CARON: To anyone else, right? MR. VARNADOE: Well, those are incorrect figures, and I apologize for that. Because Oil Well Road, you know, was going to be a four-lane facility, and now it's going to be six-lane. The amount of fill going to Oil Well Road is -- and Camp Keis Road and for Immokalee Road north of Camp Keis Road, which is our commitment to the county on -- COMMISSIONER CARON: Right. MR. VARNADOE: -- is 2.8 million yards. But to get there with compaction, you've got to have 3.4 million cubic yards coming off the facility. The soil borings later on have indicated that it's going to be four plus million cubic yards, not what we originally thought. And at the time that work was done, those were what we thought. But since we now have -- the plans for Oil Well Road are further along, they're at 60 or 90 percent completion, and we know more about what the capacity the pit's going to be, it's going to be somewhere in the 75 to 80 percent for our commitment to the county and the rest for public sale. COMMISSIONER CARON: Okay. That was going to be an additional question was Immokalee, I had read somewhere, was included and it's not on here. So okay. MR. VARNADOE: Well, the first priority of course, Oil Well Road should be hopefully starting construction this year. And of Page 30 March 20, 2008 course that's the first priority. COMMISSIONER CARON: Okay, my next question is the evacuation duration. It says here at the top of the page that it's going to be 1,184 days, plus down in the body of it there's another 854 days. So that's some five and a half years worth of excavation time. MR. VARNADOE: Let me let the engineer answer that, please. COMMISSIONER CARON: Okay. D'AMICO: Hi. For the record, Dominic D'Amico, Agnolia, Barber, Brundage, representing the applicant. The transportation analysis that's -- COMMISSIONER MURRAY: Please use the other mic. D'AMICO: The transportation analysis provided -- as you can see the date on it, it's roughly almost two years old, 18 months, anyway. The projects we're talking about have evolved. We have a better understanding of how much fill the roads will need. This analysis also assumed that it would be a dry mine. Since that time the applicant has obtained a dewatering permit from the Water Management District, which will allow the pit to be excavated much quicker. That need arose due to the proposed construction scheduling of Oil Well Road, obviously. When the scheduling was known, it was fairly obvious that the fill would need to be produced a lot quicker. The numbers, as I understand them, for yield and demand are that the three county road projects are going to demand roughly 3.4 million yards. The pit's going to produce roughly four million yards, which leaves roughly 6,100,000 yards floating out there somewhere. So those are the bottom line numbers, as I understand them. COMMISSIONER CARON: All right. Well, back to the number of years. When I look at the permits, your permits go through 2012. That's four years. Is there some sort of process for an automatic renewal or extension of those permits? D'AMICO: I believe as long as we're active we can extend the Page 3 1 March 20, 2008 permits. COMMISSIONER CARON: Okay. Because according to what I'm seeing here, we're talking about five and a half years worth of excavation is what you're planning on. COMMISSIONER MURRAY: At least. D'AMICO: But it will likely be-- COMMISSIONER CARON: And you're telling me now it may be quicker than that. D'AMICO: That's correct. COMMISSIONER CARON: Okay. D'AMICO: The road project is not going to take five years to do, so it's going to be demanded much quicker. And that was part of the need for obtaining the water -- dewatering permit, so that we could remove the material quicker and -- COMMISSIONER CARON: Thank you. D'AMICO: -- serve the road with it. COMMISSIONER CARON: Thank you, I just wanted to get those discrepancies cleared up. CHAIRMAN STRAIN: Okay. Mr. Schmitt? Is he still in the room? MR. BELLOWS: He had to go to the other meeting. CHAIRMAN STRAIN: Okay. I notice that this point that Ms. Caron brought up is a very good point. The document that she's referring to was provided in the staff -- to the staff on September 12th, '06 and the traffic report, which I would assume transportation department would have focused on. Of course we heard today they didn't realize based on the calculations on that page that some of the fill wouldn't be used in the locations that they thought. And I think that's concerning, getting these stipulations this late, not having time to look at them, especially in front of us is a real concern as well. I was wondering from a perspective of staff, I notice that you Page 32 March 20, 2008 have the legal department sign off on these documents, you have yourself, Ray, you have Susan Murray, Joe Schmitt and the planner. Transportation is a separate department headed by a separate administrator and all that. Why wouldn't they need to be signing off on these from now on? MR. BELLOWS: They sign off through our computer database tracking system, CD Plus. We send them a copy of the staff report as a courtesy. But as the time constraints are, it takes long enough just to get the signatures of those and get your agenda packets to you on time. It would be three or four more days if we went to another signature reVIewer. CHAIRMAN STRAIN: You do know that when we come to the consent agenda we're -- you're going to be -- or someone at staffs going to be required to stipulate this document as accurately as it was stated here today, with the stipulations that we put it. And if we put Nick's on it, they were verbally expressed at the meeting, but with no handout I'm not -- is staff going to -- you're going to have to coordinate to get this down to us by the next consent agenda item. Nick? MR. CASALANGUIDA: If it's possible, I'll take the time in between the other petition and get this typed up at the county attorney's office and submit it on the record. CHAIRMAN STRAIN: Well, I don't want to delay the vote on this because then we're going to have a half dozen people having to sit here all morning. MR. CASALANGUIDA: Well, I think the stipulations are pretty -- they're pretty basic and clean, and the applicant's agreeable to them. The only thing that arose from this, and we looked at the calculations towards the end, we realized there might be public sale on this. That's where this came from. I think we're all in agreement it's okay. And if! can move quickly to type this up and I've read them on the record and they're Page 33 March 20, 2008 consistent with what's read on the record, then I don't think we'll have a problem unless you see that that is. And again, I apologize for the late notice. CHAIRMAN STRAIN: Nick, I know your intentions are always to the best interest of the community. I have no doubt that the stipulations you just stated are probably right. And the applicant is apparently agreeing with them. So myself, I personally feel we can move on. But I just -- this is not the way things should happen at these meetings. We should be better prepared. Your department, if you don't have time to review something and you come up late with a new twist like this, I'm suggesting you ask for a continuance to do it right. I think it's better served for the public to do it that way. MR. CASALANGUIDA: In the future we'll do that, sir. CHAIRMAN STRAIN: Any questions of staff, transportation, anybody else? Mr. Wolfley? COMMISSIONER WOLFLEY: Chairman, it's just -- and we spend a heck of a lot of time reading through these documents, and we're looking at a document that's 180 -- the same traffic assessment. Things have changed, the road has widened on Oil Well and I'm wondering what other documents are out of date here that we've spent hours reading. And it's just -- trying to make decisions based on that. And you know, Ms. Caron and Mr. Strain, I just wanted to say it's -- I mean, how are we to make accurate assessments of the project with old information? In the future is there any way that we could get up-to-date information so that we can make those assessments? MR. CASALANGUIDA: From the transportation point I'd like to point out on the record, it's difficult for one reason: The applicant may submit 16 months from now prior to. It's reviewed, it's commented on. We even ask for updates going forward, and those Page 34 March 20, 2008 updates we try and put them on the record and provide them as documentation as early as a month or two before planning commission meeting. But what they provide for documentation for traffic analysis, by the time they go through the process, what you may see was originally submitted 16 months ago. So we try to provide an updated or say that what they provided is consistent or slightly changed but still does not materially change the impacts of the site. When they did the cubic yard analysis, the roadway project has not expanded yet. The roadway permit for that project is being delayed right now. So those are things you can't -- you're constantly dealing with in flux as you come forward on an application. COMMISSIONER WOLFLEY: Well, I understand it doesn't really materially affect what we're voting on here. But it does for us to get an idea of the impact on the surrounding areas. So if there's any way we can get more up-to-date information in the future -- it's not just staff, I mean, it's the applicant as well -- it would really help. CHAIRMAN STRAIN: Mr. Murray? MR. VARNADOE: Not to make excuses, but this project has always been tied to the Oil Well Road expansion as one of the primary purposes. And once we submitted under dig it wet, which is a slower process, once we found out the schedule for the improvements in the six-laning, we then went and got a dewatering permit so we could dig faster, that did change our transportation numbers. But the transportation numbers that changed were only for the part that's going to Oil Well Road itself. So it's going to be part of that process. So not to make excuses, just try to explain, sir, what did happen during the process. COMMISSIONER WOLFLEY: Right. Well, I've known about the six lanes for must be a year anyway. MR. VARNADOE: But if you see the date on that-- COMMISSIONER WOLFLEY: I know. Page 35 March 20, 2008 MR. VARNADOE: -- it's two years. COMMISSIONER WOLFLEY: Exactly. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: What I caught you saying, George, earlier was that Immokalee Road where Immokalee was added to this. And I haven't heard whether -- what those numbers are cited anywhere. And Nick, if Immokalee Road was added to it, that was something that became part of the process. And I'm not trying to put you on the process there, it may be there's a left hand and a right hand thing going. But it would seem that -- because I counted when I looked at this as well, and I thought okay. But I'm just wondering, you're saying it's going to be accelerated but we've added another project. MR. VARNADOE: No, sir. What accelerated Oil Well Road, that is separate and apart from -- THE COURT REPORTER: I'm not hearing you very well. Are you having a hard time hearing? COMMISSIONER MURRAY: Yes. It's a bad mic. MR. VARNADOE: I'm sure you can hear me without any amplification. Make it very clear, the commitment under the developers contribution agreement was for Oil Well Road, Camp Keis Road and Immokalee Road. But the only road project that's in the books today is Oil Well Road. But I was trying to explain to Mrs. Caron why we said the fill was primarily for the road projects, to explain the cubic yards that were available in our commitment for cubic yards to the county, sir. COMMISSIONER MURRAY: I understood you. I thought you did it well as far as that's concerned. But with the numbers, it seems to be very true that with what we read and we rely upon, that it changes and you begin to question Page 36 March 20, 2008 whether you have at all. I don't have a question of veracity, I have a question of whether totality. MR. VARNADOE: I understand. Ifthere are other questions, I'd be glad to respond to them. Did everybody think they have an understanding of the restoration aspects and how they tie into the conditional use? Because if not, I've got an environmental scientist here who actually designed the plan. I'd be glad to have him explain that, if anybody has any questions in that regard. COMMISSIONER MIDNEY: I'd like to hear it. MR. VARNADOE: I thought you might, Mr. Midney. MR. JOHNSON: For the record, Bruce Johnson. I am a Senior Project Manager and Environmental Scientist with WilsonMiller. On screen you can see the habitat restoration area that is comprising most of that HSA that you were asking about, Mr. Midney. You can see the blue area surrounding what will be the western lake of the excavation. And let me just briefly go through this. The green areas are reforestation areas that are designed to facilitate panther movement across Oil Well Road. You can see a label down here on the bottom indicating the location of the future wildlife crossing for panther. And the lake actually serves a very useful purpose here. Number one, just by its existence the lake -- the combination of the lake and the reforestation actually guide the panther up into the strand rather than having the panthers cross the road and venture to points east and start getting into human habitation areas. So there's a very logical function there. The green areas together comprise about 66 acres of reforestation. We're looking at restoring conditions that are suggested by presettlement vegetation maps. Basically hydric pine flatwoods with cabbage palms. The blue areas are designed to be wading bird restoration areas Page 37 March 20, 2008 that comprise approximately 53 acres. There are a few design elements in there that are really excellent in terms of wading birds. You notice the difference in blue tones. The lightest blue tone is basically a wet prairie recreation. The mid-tone blue is a standard freshwater marsh with a marsh hydro period. And the deep blue areas are isolated depressions in the landscape. This will all be contoured. We have another recording wells out there determining where the water table is. And what we will be doing is contouring this landscape in such a way that year round, regardless of rainfall conditions and other weather factors, there will be the opportunity for wading birds to forage out there. And this is within the radius of several wood stork colonies. So the wood storks will be able to forage here, as well as other wading birds. The marsh gradually grades into the western lake so that there is a continuum between the marsh and the lake. And as George noted earlier, the western lake is not used for any water quality purposes, it's surface water management purposes. So the birds can take advantage of the lake edge as well as the restoration area that we've recreated for them. COMMISSIONER MIDNEY: What's the black area? MR. JOHNSON: The black area actually is an existing lake out there right now. Immediately west of it is an existing cypress dome that has exotics and is being cleaned up. And there's a small patch of vegetation on the very western edge in the green area that is some native vegetation. One other element of the restoration. Along the western boundary of this entire area that's outlined in red, there is a berm that separates Camp Keis Strand from the existing agricultural area. And that berm will be breached in places and/or partially removed, and those areas will be taken down to the natural grade of Camp Keis Strand. That allows water from the strand to enter the area at high stages, and not only is that good water management, but it also Page 38 March 20, 2008 provides an influx of fish and amphibians and invertebrates that the birds will use to forage. So we'll basically be restocking this wading bird forage area every time Camp Keis gets high and brings new fish and amphibians and other critters into that area. CHAIRMAN STRAIN: Any questions, Mr. Midney? COMMISSIONER MIDNEY: (Shakes head negatively?) CHAIRMAN STRAIN: Any questions from the planning commission? Mr. Kolflat, then Ms. Caron. COMMISSIONER KOLFLAT: Has anybody in staff identified what the area was that I raised the question earlier? There's a difference in area between the agenda and what was -- MR. BELLOWS: Yeah, for the record, Ray Bellows. I contacted our legal aid who does the advertising for our land use petitions, and she indicates it was the 168-acre number. COMMISSIONER KOLFLAT: 168 acres? MR. BELLOWS: Yeah, that's the one. COMMISSIONER KOLFLAT: But the petitioner's was 158.7 acres. MR. BELLOWS: Yeah, it appears that the title wasn't revised when the application was -- COMMISSIONER KOLFLAT: Well, if the advertisement disagrees with what we're studying here, discussing, is it still valid? I guess that's a legal question. CHAIRMAN STRAIN: Well, Mr. Kolflat, I think that's come up in the past before. If they had more acreage in question here today than what was advertised, then I think that's a substantial concern. But if they're asking for less than what was advertised -- in the past it has not been a problem legally, so I would assume from the legal department that it would still apply that same way today. MR. KLATZKOW: That's correct. CHAIRMAN STRAIN: Thank you. Page 39 March 20, 2008 COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay, any other questions on the environmental issue? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I just wanted to ask, there are in our packet management plans for all kinds of species except the panther. Why isn't there a panther mitigation plan in here -- or growth management plan? MR. JOHNSON: I'll defer to George on that. I actually did not write the management plans. MR. VARNADOE: We approached the Fish & Wildlife service about that issue. We obviously have to mitigate for panthers because we're in panther primary and secondary habitat. They suggested that the better way to mitigate would be part of the Oil Well Road project, which is a much larger scope of mitigation. So our mitigation would be part of that. And that has to be done prior to the excavation permit being issued pursuant to the EAC stipulation. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Are there any other questions of anybody so far that has presented? (No response.) CHAIRMAN STRAIN: Okay, Ray, do we have any public speakers? MR. BELLOWS: No public speakers. CHAIRMAN STRAIN: Thank you, Ray. Okay, if there's no other questions from the planning commission, I'll close the public hearing and we'll have a discussion before a motion. Discussion on the part of the planning commission. Anybody have any comments? (No response.) Page 40 March 20, 2008 CHAIRMAN STRAIN: Well, then we'll go straight into a motion. Is there a motion on this particular item? Come on, guys, you've got to have a motion. COMMISSIONER CARON: I'll make a motion. CHAIRMAN STRAIN: Okay, Ms. Caron? COMMISSIONER CARON: I'll make a motion of approval of CU-2006-A R-9337, subject to-- CHAIRMAN STRAIN: It's 2007. COMMISSIONER CARON: That's the correct number, right, 2006? CHAIRMAN STRAIN: My staff report says 2007. Let's see what we have. COMMISSIONER CARON: Okay, 2007. MR. BROWN: 2006. CHAIRMAN STRAIN: No, it is 2006. Staff report says 2007. Oh, I hate to ask this: What's the advertisement say? COMMISSIONER CARON: Don't. CHAIRMAN STRAIN: Okay, let's go on with the motion. I'm sorry . COMMISSIONER CARON: Subject to EAC conditions and subject to staff conditions, with the exception of number six, which we are deleting, and with revised language from transportation which will affect numbers four and five. COMMISSIONER WOLFLEY: I will second that. CHAIRMAN STRAIN: Okay, motion made by Commissioner Caron, seconded by Commissioner Wolfley. MR. KLATZKOW: Can we get transportation stipulations on the record during this motion? CHAIRMAN STRAIN: That's a good idea. Nick, can you -- I know you haven't had time to type them and copy them, but if you could come up and read strictly your stipulations into the record clean one more time. Page 41 March 20, 2008 MR. CASALANGUIDA: Sure. 100 feet of throat depth must be maintained at all times on Oil Well Road, stipulation number one. The entrance road will maintain a minimum of 75-foot radius, turning radius, until such time that a right turn lane is provided in the expansion of Oil Well Road. Quarterly monitoring reports will not be required until the project begins the sale of material to the public. Material provided for a public roadway project in Ave Maria will not be considered public sale. Four, a letter must be sent to the zoning director and transportation planning director prior to the sale of materials to the public. Five, upon commencement of public sale of material, the applicant will begin to provide detailed quarterly monitoring reports, detailing the sale and the amount of vehicles, heavy vehicles, that leave the site. A $1.00 vehicle charge will be provided for every heavy loaded vehicle leaving the site and will be provided quarterly with the monitoring report, with the payment being made to the BCC for road maintenance in lieu of providing inspections of the roadway and fixing any roadway impacts on the adjacent roadway network. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: And two things. I take it then that staff stipulation number four is now omitted, Nick? MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Four and five both, I believe, right? MR. CASALANGUIDA: Yes. MR. KLATZKOW: Four and five both. And can I get the applicant to indicate its consent to these additional stipulations? MR. VARNADOE: The applicant has no problem with the stipulation, provided that $1.00 charge is being applied universally. Page 42 March 20, 2008 CHAIRMAN STRAIN: It's interesting you bring that point up, because that was going to be my next point, too. MR. VARNADOE: I mean, I don't want to be treated any differently than anybody else. If everybody else is doing this, I'm happy to be -- but it has to be a level playing field. CHAIRMAN STRAIN: I know this board has always tried to make sure everyone is at a fair playing field, I agree with you. Nick, can you respond to that? MR. CASALANGUIDA: It is being applied uniformly across all applications for mining. CHAIRMAN STRAIN: What provisions in the code allow you to set this policy? MR. CASALANGUIDA: It's in lieu of them providing maintenance and inspection of the roadway network. So it's -- the provision of the code right now is they have to maintain the roadway in front of their project onto the adjacent roadway to satisfactory condition, which requires significant inspection. And to be honest with you, it can be even more dollars. So it's in lieu and it's voluntary, and we are in the process of codifying it. CHAIRMAN STRAIN: Okay, but -- I don't doubt that it's the logical thing to do. We have to vote on things based on code, or Code of Laws. And if the county attorney or you can tell us where staffhas the right to pick a number in deference to a code, then that's fine. But I'd like to know what your basis is to do it. I'm not saying you shouldn't do it, I just want to make sure the basis is correct. MR. CASALANGUIDA: When we provided -- when the applicant applies for right-of-way permit, as part of that permit he's required to maintain the roadway that he affects. So that -- it's not codified to the point where you say that dollar came from, you know, out of the code. It's to say that he is required to maintain that road. And we've said with applicants, that can be extensive and require a lot Page 43 March 20, 2008 of tests and subjective analysis from both staff and yourself. So if you would like the option of providing a dollar in lieu of, which is about 15 cents a cubic yard on a typical vehicle, and the county will pick up a maintenance obligation, that's where we come up with this. And we are working with Tindale-Oliver to codify this. CHAIRMAN STRAIN: Okay. Do you have a -- your rational nexus has not been, to date, though, supplied. Basically you're instituting a new tax at 15 cents a cubic yard if they don't want to go out and maintain the road themselves. I don't doubt that there's a need there. I'm not saying there isn't. I'm concerned about the process in which you're using to implement it and being legal. Mr. Klatzkow? MR. KLATZKOW: Yeah, which is why I wanted the applicant to come up and consent to these things. This is in lieu of, Nick? MR. CASALANGUIDA: Yes, in lieu of the applicant required to maintain -- MR. KLATZKOW: So the applicant does not have to pay this, the applicant can simply abide by the code requirements of maintaining -- MR. CASALANGUIDA: As a stipulation of the right-of-way permit, the applicant will have to provide borings and test analysis, and we could go out as far as a mile -- MR. KLATZKOW: Then it's the applicant's decision which way he wants to go. MR. CASALANGUIDA: That's correct. CHAIRMAN STRAIN: Okay, but I think the staff, though, based on what Nick's saying, borings and things could go out a mile. If they can make it harder if the applicant doesn't go this route, that might be a possibility. Again, I think my concern is that we're treating everybody fairly and consistent with the codes. I would certainly like to highlight to the BCC this particular issue and ask them to confirm that the policy direction that you're Page 44 March 20, 2008 going in is something they want you to go in. MR. CASALANGUIDA: Matter of fact, Commissioners, you bring up a good point. It was brought up at the BCC, and the direction they gave staff was to codify this. And we are working on that. But they said that that was consistent with not providing maintenance on the roadway, that they'd rather have the road maintenance department dealing with that, not constantly bickering with an applicant about do you need to resurface the road and how far do you need to go. So we are -- we've been given direction by the BCC on this. CHAIRMAN STRAIN: Okay, it's not in effect yet, but I understand your comments. Mr. Klatzkow, is there anything else we need to clean up on that, or are you satisfied with the reading of the stipulations? MR. KLATZKOW: Well, I think it's the applicant. Is the applicant satisfied? This is an option, Mr. Varnadoe, this is not a requirement. MR. VARNADOE: I understand that. So it seems like that option can be made at the time we get a road permit. MR. KLATZKOW: I don't have any problem with that. MR. VARNADOE: And hopefully it will be codified by then. I guess that's where I'm trying to go. CHAIRMAN STRAIN: Okay. Nick, when you type these up, maybe that stipulation ought to read as an option. That condition, that last one with the dollar a yard -- or dollar a truck. You make a note as an option to the -- MR. KLATZKOW: In lieu of. CHAIRMAN STRAIN: -- applicant to maintain the road, or in lieu of, right. MR. KLATZKOW: It will be like the sidewalk option, where in lieu of doing sidewalks the developer can -- MR. VARNADOE: That's acceptable to the applicant, yes. CHAIRMAN STRAIN: Okay, Mr. Kolflat, then Mr. Midney. Page 45 March 20, 2008 COMMISSIONER KOLFLA T: Nick, in your restoration -- recitation, you did not mention the 25-degree radius that would occur after the right turn lane was implemented. Is there any reason it should or should not be? MR. CASALANGUIDA: It's a design standard, the 75-foot that's required now. Is a design increase. So when the turning radius is included with the turn lane, the 25 is automatic. So -- COMMISSIONER KOLFLAT: Okay, thank you. MR. CASALANGUIDA: You're welcome. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: Yeah, I'm sorry, Mr. Strain, I had a question of the environmental consultant. I don't know if you want to grant this or -- it's kind of going out of order. CHAIRMAN STRAIN: No, Paul, anything we need to resolve, we need to resolve. This is the last chance we have. COMMISSIONER MIDNEY: I'm finding it hard to understand how you're going to excavate to a depth of 35 feet and yet have most of the area that's being excavated still be wildlife habitat. You say that there's the sort of grayish blue areas that's going to be prairie, and then there's the medium blue that's going to be a littoral area, and then the dark blue is -- MR. VARNADOE: Mr. Midney, the restoration that he was talking about, if you'll look at this exhibit here, this is the extent of the lake, the blue line. Most of the restoration is occurring outside of that blue line, sir. The only restoration will be in the side of that blue line. The lake is the requirement that there be an eight-to-one slope for littoral plantings to -- will go into the lake. COMMISSIONER MIDNEY: So the lake -- where is it on this map that's on the overhead? MR. VARNADOE: The lake, right there. COMMISSIONER MIDNEY: Oh, okay. CHAIRMAN STRAIN: Wow, that's a fancy pointer. Page 46 March 20, 2008 MR. VARNADOE: I'm sorry? CHAIRMAN STRAIN: Nothing. I haven't seen a pointer like that before, George. MR. VARNADOE: Hey, it's pretty good, huh? Wavy lines and everything. No straight lines. COMMISSIONER WOLFLEY: I won't go there. COMMISSIONER MIDNEY: That's helpful. CHAIRMAN STRAIN: Are you all set? COMMISSIONER MIDNEY: Yeah. CHAIRMAN STRAIN: Now, is there any other -- I think we've listed the stipulations by transportation. Ms. Caron made the note that condition six, accept EAC stipulations, staff recommendations with the exception of the changes to transportation. And then the transportation reread their six -- I think it was six stipulations, and we came and requested a slight change to the last one involving $1.00 a truck. MR. KLATZKOW: And four and five are out. CHAIRMAN STRAIN: And four and five are out, that's correct. Everybody clear on the motion? Does the motion maker accept the motion now as clarified? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: Yes. And does the second accept it? COMMISSIONER WOLFLEY: Yes. CHAIRMAN STRAIN: Okay. All those in favor of the motion as clarified, signifY by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. Page 47 March 20, 2008 COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries, 9-0. Thank you very much everyone for your time today and we will take a break until 10:00. COMMISSIONER WOLFLEY: Mr. Strain, I have a question about that. Can I get a clean copy to sign in? The back of mine has -- CHAIRMAN STRAIN: No, they're all like that. COMMISSIONER MURRAY: They're all like that. Take it out. COMMISSIONER WOLFLEY: Okay. (Recess. ) CHAIRMAN STRAIN: Okay, it's at the top of the hour. If everybody could come back and resume their seats. We have a multiple discussion on another project coming up. From a procedural viewpoint, what I'd like to do, I'd like to read the three petitions that are involved in this for discussion collectively but individually vote on each one. Is that acceptable, Mr. Klatzkow? MR. KLATZKOW: That's as good as any approach, yes. CHAIRMAN STRAIN: Okay. And I think the reason we could do that, it would expedite the hearing, and plus I think there's going to be a lot of crossover questions, anyway. As far as presentations from staff and the applicant, I'd prefer they present in some order so we know they're -- when we too question, if we can try to work towards the one document that you're talking about. But we'll get them all together without reopening another hearing each time. Item #9B PETITION: CPSS-2006-1, SMALL SCALE GMP AMENDMENT Page 48 March 20, 2008 It would be three petitions coming up. They're all on the intersection of951 and 41. A proposed project called Tamiami Crossing, CPUD. It involves a small-scale growth plan amendment, a new PUD, including that amendment, and then a change to the existing PUD that has the Wal-Mart shopping center as part of it. I'll read the three petitions: CPSP-2006-1. That's the small-scale growth plan amendment. Then petition PUDZ-2006-AR-I0875. That's the new PUD that would be created called Tamiami Crossing CPUD. And then finally Petition PUDA-2007-AR-11734. That's the amendment to the Artesa Pointe PUD, which is roughly known as the Wal-Mart PUD in that area. So with those three items, we will move forward. Are there -- first of all, anybody wishing to testify on anyone of those three, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Thank you. Are there disclosures on any of the three on behalf of the planning commission? And we'll start with Mr. Vigliotti. COMMISSIONER VIGLIOTTI: I had spoke to Mr. Y ovanovich. I had some questions regarding the project. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: As is noted in the document, I was in attendance at the NIM, but I hadn't had any subsequent conversation. CHAIRMAN STRAIN: Okay, for myselfI've had discussions with Mr. Arnold and Mr. Y ovanovich, all of which we will be reiterating today, in fact more so. Ms. Caron? COMMISSIONER CARON: I had a phone conversation with Mr. Y ovanovich. CHAIRMAN STRAIN: Anybody else? Page 49 March 20, 2008 (No response.) CHAIRMAN STRAIN: Okay, with that, presentation by the applicant. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich, on behalf of the applicant. With me today is Eric Stickland, who is with Kite Realty who can answer any questions about the project; Wayne Arnold from Q. Grady Minor and Associates, Professional Planner on the project; and Reed Jarvi to answer any transportation questions you may have. As the Chairman pointed out, this is a 25.45-acre commercial PUD that is requesting 235,000 square feet of retail uses. There are three petitions associated with the project. On the visualizer you can see the project on an aerial. Across from -- the small-scale compo plan amendment is to add this portion of the project to the acreage. To the east is a parcel owned by DEP so it will I guess stay as state land. To our south is the Artesa Pointe PUD, which is developed as both a retail and a residential project. You have the Super Wal-Mart, as well as a Habitat for Humanity project. And that's right here on the property. The second petition is to remove -- and it's difficult to see on the aerial. And -- is this small .88-acre parcel from the Artesa PUD. When we did that PUD, that was designated as parking with the thought at some point that it would probably serve the property we're rezoning today. We had talked about leaving that in the Artesa PUD and just, you know, having an off-site parking arrangement, but it made more sense to go ahead and take that .88-acre parcel out of that PUD and put it into the commercial -- our commercial PUD. And then finally, the overall project is the third petition, which is the commercial PUD. Regarding the small-scale compo plan amendment, we provided Page 50 March 20, 2008 documentation to staff. And Wayne will go through a little bit more of the detailed analysis we did regarding the surrounding land uses, as well as the demand analysis. As you can see, your staff is supporting this small-scale compo plan amendment. It would be an isolated small seven-acre parcel fronting U.S. 41, basically totally surrounded by commercial or high density residential. So it doesn't really make any sense to leave that 7.3 acres as a residential piece of property. In addition, as you can see from the master plan, we have located the preserve and water management for the commercial project on that 7.3-acre parcel to assure compatibility with the residential development to our south. The overall PUD, as I briefly stated, is for 235,000 square feet of retail uses on a little over 25 acres. The maximum zoned height would be 60 feet, and the actual height would be 67 feet. This developer is the same developer who did the Super Target project up on Immokalee Road, so they do provide quality development. The project is a party to the developer contribution agreement that I think you all -- you didn't vote on but you all heard as part of the Naples Reserve project where there's a consortium of property owners that have agreed to construct intersection improvements at U.S. 41 and Collier Boulevard, as well as to construct a four-lane improvement to U.S. 41 heading east. That developer contribution agreement serves as the required mitigation under the comprehensive plan in order for this project to be deemed consistent with the comprehensive plan from a traffic standpoint. That DCA also specifically provides a phasing schedule that at the time the required bond is posted for the project, and I believe that bond number is $55 million, and that's based upon a conservative estimate of the design permitting and construction cost of the road. A first phase of development would be allowed to occur. This project Page 51 March 20, 2008 would be in the first phase of that development. And the DCA specifically provides that the DCA serves as the transportation concurrency. And just to remind you all, what the DCA does is basically these developers have agreed to pay the cost of these improvements, regardless of what it cost. The bond will be posted to assure that there's adequate funds to construct the road. If for -- something happens where the developers basically walk away from the DCA, which won't occur, but they're providing an insurance policy through the bond. So there's additional cost related to the bonding related to this. The EAC recommended unanimously approval of the project. Your staff is also recommending approval of the proj ect. We had our neighborhood information meeting. As you can see from the summary, we made it very clear if people had any objections that they should make those objections known. There was a concern about this going on the summary agenda without adequate public opinion, and we told them upfront if you write a letter of objection we won't be on the summary agenda. We're not aware of any objections. The questions that generally came up at the neighborhood information meeting surrounded transportation. And when we explained the DCA and how that would all work, I think we adequately addressed the neighbors concerns regarding transportation. That's a brief overview of the project. Wayne's going to take you through in a little bit greater detail each of the three petitions. And then I think if you let us finish that part of the presentation, it might be a good time at that point to ask any specific questions you might have regarding the project, unless you feel like you need to ask some questions right at this point. CHAIRMAN STRAIN: I think we might get a lot answered if we listen to the whole presentation, but Mr. Murray wants to ask -- Page 52 March 20, 2008 COMMISSIONER MURRAY: No, that's all right. It's moot. That's okay. CHAIRMAN STRAIN: Okay. MR. ARNOLD: Good morning. Wayne Arnold. Change out the exhibit on the visualizer, just to focus in a little bit more on the conceptual master plan and talk from that for a moment. Rich walked you through where we're located and what we are, but I thought I would just give you a little bit more specific orientation to the project and point out that we have access both proposed on Collier Boulevard and u.s. 41 East. We have three access points shown on U.S. 41. We're proposing two access points on Collier Boulevard; one is a shared access point that would be shared with the Artesa Pointe PUD. You'll also note that we're proposing to interconnect in with the residential component of the Artesa Pointe PUD, as was required for that project zoning. But for sure we will have the interconnection at the western side of this project with a shared access that goes out to Collier Boulevard. As Rich pointed out, the area that we're adding that's just currently outside of the activity center primarily will be used for access to our site, water management and our preserve boundary. The preserve boundary, as Rich indicated too, is adjacent to the preserve area for the Artesa PUD. That was viewed positively by the EAC and we received their unanimous recommendation of approval for that. The project was shown in a little bit more detail in terms of building orientation than some of the conceptual plans that you've seen. This is being driven by probably having a larger format retail store on the U.S. 41 frontage, thereby really putting our parking field oriented toward Collier Boulevard. We have asked for three deviations, and I'll go through those in a moment. But I wanted to let you know that those three deviations are also keyed to the access points in the orientation of the site. Page 53 March 20, 2008 You can see that with the assemblage it's a little bit irregularly shaped. And that's I think largely due to the preserve location with the existing Artesa Pointe. But as we pointed out in some of the submittal information that we provided, there are just not a lot of sites out there sized adequately to support larger format retail stores. I'll come back to the deviation discussion, but I wanted to -- we've looked at a couple different things, and maybe Ray can zoom in on that just a little. Some of the lines are hard to see. But your comprehensive plan talks about some of the criteria for looking at rezonings in the activity center. And there are three criteria that are discussed that were sort of applicable to surrounding land uses in the activity center and outside the activity center. And I can read those, if you're not familiar with them. It's a pretty brief discussion of each. But it says we need to look at as a consideration the amount, type and location of existing zoned commercial land, developed commercial uses, both within the activity center and two miles outside the activity center. So what we've taken here is information from your PUD zoning map, as well as your commercial inventory map. And it identifies in red the existing conventionally zoned commercial properties within two miles. And the yellow/orange color are PUD commercial. And that runs the gamut. I think Ray's pulled in a little close to see all of it, but I would point out that the -- as you go north along Collier Boulevard, for instance, you get into the Winding Cypress project. A commercial that's shown there just in the upper right portion of your screen, that's really the village center that serves primarily that Divosta community's residence. It's not really general commercial open to the public. Probably most prominently on the screen is the Lely Resort DRI commercial component that they have that's within the activity center. Page 54 March 20, 2008 And then to the south outside the activity center boundary is the Artesa Pointe PUD, which has been developed with Super Wal-Mart. You'll also note on this two-mile radius it does take in portions of Fiddler's Creek, Lely Resort, Winding Cypress DRI, the Naples Reserve project to the east. And as you go to the west you get into Eagle Creek Country Club and Lands Inn Preserve PUD, which is being developed as Artesa by WCI Communities. You went Wentworth Estates. Those are all large-scale plan developments. And then you also have almost all of the Naples Manor community. But I thought too, when you start looking at the pattern of development that's here, it's pretty unique. Because we have a lot of open space uses, too. We have the Eagle Lakes Community Park out there. And we have the Lely High School, for instance. We have a business park that's zoned to the south. We have the Rookery Bay facilities to the south and west. So there's an extensive amount of open space uses, commercial uses and residential. The county updates its inventory report every year for commercial uses, and we had looked at that in addition to some of the mapped exercises and don't find parcels that are available commonly to go out and find a site that you can put regional or even community level of commercial uses on there. In fact, most of those parcels, if you look at the red, you can see that those are just narrow ribbons along U.S. 41 that in some cases have depths not even 200 feet, and it's difficult with the existing zoning pattern and development pattern to even -- you can't even assemble enough land under the comprehensive plan to have the depth away from U.S. 41 to really put in this type of facility. One of the other things that I had also looked at, and I compiled some data from the county's PUD list, and the -- and the commercial inventory report that looked as just how much area is out there that's been zoned and developed for commercial and residential land uses, and it's pretty significant in that two-mile radius. Page 55 March 20, 2008 And I think what's probably just as significant to look at, I just did a -- you might have to zoom out a little bit on that, Ray, please. On the top I had some of the PUD commercial that lies within the two-mile radius. And you can note on that that we have the Lely Resort, we have Artesa Pointe, the ASGM Business Park, portions of Fiddler's Creek, the Myrtle Woods project and Wentworth Estates and Winding Cypress. And you can see that out of that you have Lely Resort and Artesa Pointe that have the most significant amount of commercial development. But I think what's even more striking to me is when you look at the amount of residential that's been zoned and even currently developed with rooftops based on your most current PUD monitoring reports, you have a significant number of home sites that are in this geographic area of two miles. I don't know why the county chose two miles for what we should be looking at, other than the activity centers are generally spaced two-mile intervals and if within two miles you don't reach another activity center. But the nearest activity center to our north is Rattlesnake-Hammock Road. And there's a community shopping center there that lies just outside the two-mile radius. We also have a Regional Hospital facility there as well that seems to be absorbing and taking a lot of medical office space in that part of the community and not necessarily retail. So those are things that we've done in addition to just looking at what's going on in our activity center but within that two-mile area around us. We had also submitted from Kite Realty some of their analysis for I guess why this made sense for them to choose the site to pursue retail on it. Eric Strickland's here from Kite Realty if there are specific questions there. But that information is in your packet. The other thing that I wanted to touch on were the deviations. I Page 56 March 20, 2008 know that staff has supported the signage deviation. We wanted signage at each of the three access points. And we agreed that we wouldn't exceed the total signage we would have been authorized under the standard code, but we need it broken up into three access points as opposed to two. Hopefully you can support that. The other was having our parking field oriented on one side of the building primarily, as opposed to having parking surrounding this building. And just given the site configuration, it really would be physically difficult if not impossible to locate a large format retailer here then and try to provide full parking fields on both u.s. 41 and on the Collier Boulevard frontage. And for that we had offered up a buffer planting plan along Collier Boulevard that staff is supporting, and we hope you will, too. And the one buffer -- or the one deviation does involve another internal buffer. And we asked for a deviation that was requested for the Malibu Lakes project up on Immokalee Road, Tarpon Bay Boulevard, wherein the ownership of this likely would be broken up into two and possibly three ownerships. And the deviation, as we structured it, would have not required us to provide buffers between every platted tract. And I think in speaking with John-David and other folks, it wasn't quite clear what we were trying to do. And maybe the best example would be to show you. It's a faint line that we have on here, but a potential development scenario would have ownership separately of the large commercial building footprint and its parking field, separate for the out-parcel up here, and then separately for the area that's formerly going to be of the Artesa Pointe PUD and the small retail building down at that end of the site. Because what would happen is that the large format retailer is going to lead the development on the site. It gets built. Almost the entirety of the parking field will get constructed, and the small building to the south would get constructed afterward. And enough Page 57 March 20, 2008 parking would be sold with that building footprint, presumably, to satisfy the demand for whatever that use is, whether it's a restaurant or bank, et cetera. So if we platted that, the county would look at having two separate platted tracts with two separate landscape buffers. And what we were trying to achieve, and I guess what I didn't do a very good job of, was trying to say that it really only pertains to this one small portion of the site, is that that ownership line may in fact take in parking spaces that are existing. But it wouldn't be in a logical break necessarily so that it would allow a full landscape buffer to be constructed. Because the parking lot will already be there. So I guess the deviation should be more specifically noted to be only that area that's north of what we've labeled as Tract A at the southern portion of our site. And I know that's a little confusing, but that's very similar language that was structured for the Super Target Malibu Lakes store wherein they would in fact in that particular location have in-line retailers that purchased the building, the land and a portion of the parking lot. And I think it's seamless. You look at it as one project and one parking field with its landscape buffers and not necessarily having these two dedicated parking lots that would be separated by full landscape buffers. So that's -- hopefully that's the fairest explanation I can give. I know it's a little bit convoluted in how to exactly describe that. But it only does pertain to the one small area, and that would be one modification I would ask you to make to that deviation. CHAIRMAN STRAIN: Okay, does that conclude your presentation? MR. ARNOLD: I think it does. I think that's all I need to say. I'd be happy to answer questions, or Rich is available for questions as well. CHAIRMAN STRAIN: Okay, Mr. Murray? Page 58 March 20, 2008 COMMISSIONER MURRAY: Can we look at Item C or what's marked as C there? That's the big box, presumably. Is this -- are we to understand that this is a certainty that a big box will be there and that this master plan is intended to relate to that, or is there a possibility that we're going to break this up? MR. ARNOLD: Well, I think there's a possibility that it can be broken up into smaller retailers. At this moment in time our intent is primarily that this will be one large owner. But as I've spoken with John-David Moss on your staff, there is a potential that there could be other in-line tenants in that same space. But this is still the configuration of where the retail building would be and its parking field. MR. YOV ANOVICH: Just to further up on that, the building orientation will stay the same. It could be broken up into three or four what they call junior boxes on that location, instead of one. COMMISSIONER MURRAY: And you'd keep your parking configuration the same way? MR. YOV ANOVICH: It would be the same configuration. COMMISSIONER MURRAY: Okay. And the other question I have is you've referenced 67 feet actual height, but in both the PUD and in the staff report I see a maximum actual height of 65, so -- MR. ARNOLD: Let me just go to my PUD document, Mr. Murray. COMMISSIONER MURRAY: In both places, so -- MR. ARNOLD: What page are you on, sir? COMMISSIONER MURRAY: The proposed development standards, either in your PUD ON Page 4 of 10, Exhibit B, or on Page 9 of the staff report. MR. YOV ANOVICH: That's right. I must have been looking at an older document -- CHAIRMAN STRAIN: Richard, you have to be on record. You'll need to use the microphone. Page 59 March 20, 2008 MR. YOV ANOVICH: Yeah, you're correct, Mr. Murray. I must have looked at an older document that referenced 67. COMMISSIONER MURRAY: So what is it then? MR. YOV ANOVICH: It's 65. COMMISSIONER MURRAY: That's what I would assume. Okay, that's fine, thank you. That was it for me for the moment. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes. Wayne, first thing is like a housekeeping thing. If you look at the master plan you have for Artesa Pointe and the master plan you have for the current thing, the northeast corner, the boundary lines and the sites look a little different. MR. ARNOLD: I've got a composite exhibit that may help that I did. It shows the existing Artesa Pointe and then the proposed. But I've put both of the properties together to show the orientation. I'm not sure what exactly you're referring to. COMMISSIONER SCHIFFER: What it is, it would be the northwest boundaries of Tract B. If you look at the Artesa Pointe, which is not -- you're not showing it on this exhibit the way it is in the exhibit we have. It's your Exhibit A from Artesa Pointe, a 2003 drawing. MR. ARNOLD: Let me get that document. Does that one help you? That's the adopted PUD master plan for Artesa. COMMISSIONER SCHIFFER: No, that's not it. Look at Exhibit A, the conceptual master plan for Artesa. MR. ARNOLD: Let's try this one. COMMISSIONER SCHIFFER: That's it. See the three lots up there, the shape they are? And then look at your Tract B. Something's confusing me now. MR. ARNOLD: Okay. The confusing part of that I think is simply because the way that is shaped. There was an irregular parcel Page 60 March 20, 2008 in there, I believe. I see what you're saying, there's a little notch on the one side that you're referring to. COMMISSIONER SCHIFFER: Yeah, it doesn't match the boundaries on the other project. Now, the concern I have is that if there are uses in there that you'd be affecting by changing that boundary. But it appears that the only uses are the Sprint station and the lift station. There's no commercial development? MR. ARNOLD: Right. Well, keep in mind, too, this exhibit we created back in 2003 for support of the rezoning for the property to the south. I think the more accurate depiction would be to look at the Tamiami Crossing PUD that reflects the current boundary and the survey boundary that we're using for the purchaser. COMMISSIONER SCHIFFER: Okay. But again, there is no commercial uses that this boundary change would ever -- MR. ARNOLD: No, sir. There's an Embarq station on of those corners, and the only other developed parcel in there is the gas convenient store at the intersection. COMMISSIONER SCHIFFER: Okay. The -- and the major concern I have is that on Tamiami Trail you're essentially putting the back of the building. As you come up Tamiami Trail, after you've driven through the scenic trail way, you're approaching Naples, you're going to be coming into the -- essentially the service side of whatever the big box will be. And you're putting it right up against 25 feet off of the property line, and it's 60 feet tall. So the concern I have is that that's a pretty big blank wall. And again, the service doors you'll have -- you know, is that right or -- MR. ARNOLD: Well, if you look at the orientation on that exhibit that we showed you, this is really a side-loaded service type Page 61 March 20, 2008 facility. If it becomes one large retailer, the service area would be at the side or the southeast corner of that building and not on the 41 side, per se. So right, we're treating that as a front for architectural purposes. We understand that we have to make that a primary facade. So it will have -- meet the glazing and the other offsets and all the other primary facade standards. COMMISSIONER SCHIFFER: Okay. So, I mean, there's no architectural exceptions or deviations you're looking -- MR. ARNOLD: No, sir. COMMISSIONER SCHIFFER: -- for here. I mean, the massing, you're not going to be able to have that long a plain. MR. ARNOLD: I don't think that reflects exactly the building footprint. It kind of consumes the building envelope area that we would be placing a building in. COMMISSIONER SCHIFFER: And the concern I have, I mean, the reason we wrote the architectural standards is to break the big box down. Had you let the drives essentially go through, you could have designed a different building than the essential square, rectangular big box. And then maybe used this site, and maybe not had to go for the deviation to put the parking all on one side. And I think we're going to have some trouble with that deviation. Essentially that was the concern that the commissioners had that established the architectural standards was to get rid of exactly what you're requesting. So, I mean, I personally am going to have a problem with all the parking and the facade of this thing. And there are other ways you could have designed this site. It may not be a rectangle, but it could be a -- you know, this is a quarter of a million square feet of box. Anyway, my concern is, and I'll just express it again, is that 60 Page 62 March 20, 2008 feet high, 25 feet away from a property line is a massive wall along a major artery. And I think that if you do take that scenic drive, this is the gateway, the entrance to Naples, and that's not a very attractive thing. And essentially on the corner is going to be a bunch of doors and trucks loading. Enough said. I'm done, thank you. CHAIRMAN STRAIN: Okay, there are three sections of this presentation. If we asked the general questions -- I certainly need to walk through myself each book, because I have substantial questions about every book. So I want to get us past the general issues first. Wayne, you had put prior to this one, a couple back, a summary of PUD's in the area. MR. ARNOLD: Yes. CHAIRMAN STRAIN: Could you put that back on? Under your permitted densities, which one do you think I'm going to tell you is absolutely wrong? MR. ARNOLD: Probably Fiddler's Creek. I don't know that I agree with the numbers, but I took them from the latest PUD list and what the county's reflecting on that list. THE COURT REPORTER: I don't think your mic is working. MR. ARNOLD: I'm sorry. I had taken that information from the county's PUD list and they reflect what's been approved and what's been developed and broken down by single-family, multi-family and commercial development. CHAIRMAN STRAIN: Well, I mean, that is only good as the numbers that you feed into it. And I know that you know the difference between the numbers for Fiddler's Creek. The number there is not 9,000, it's 6,000. And that has a significant impact on the amount you're showing. The developed amount pursuant to the latest submittal for the monitoring permit I don't believe is correct either under the developed Page 63 March 20, 2008 section. I just wanted to point those corrections out, because they are errors in data. And there will be other errors I'll be pointing out as we go through this today. But I don't want to hold -- anybody else on questions in general? Ms. Caron? COMMISSIONER CARON: Yeah, I just wanted to -- could you put up the drawing that you did that shows both the old Artesa and what you're planning new? It's very colorful. If you look at the existing Artesa Pointe PUD and you go to your -- essentially what you're trying to get is Tract A, it looks on this drawing as if we are taking part of the preserve area in order to incorporate it into that Tract A. Is that true or not? MR. ARNOLD: No. I think that was part of the original drive aisle. I think that's just an incorrect coloring of that. There was no preserve taken as part of that amendment. COMMISSIONER CARON: And currently your property goes all the way to the road there? MR. ARNOLD: It does. It's a really irregularly shaped flag piece there, and this squares that off and allows us to put in a proper access point. COMMISSIONER CARON: Okay, thanks. CHAIRMAN STRAIN: Okay, Mr. Wolfley? COMMISSIONER WOLFLEY: Yes. Wayne, I just had some concerns. You keep bringing up the Immokalee/I-75 development area of the -- what was that, a Target there? MR. ARNOLD: Uh-huh. COMMISSIONER WOLFLEY: And that is -- not that the traffic is the same along Immokalee there than it is here on U.S. 41. My concern is the traffic lights. If you can just put that bottom picture that you had there back up. There we go. Do each one of those -- and I had this marked in a couple of Page 64 March 20, 2008 these, and I don't know where the marks went, so I'm going to have to ask you this: Are those -- and Ray, you may need to pull back out again just a tad so we can see that intersection of Collier and -- right there, that's it. What is the distance, and I'm going to have to ask it because I had forgotten, from the signal to these entrances? And do those entrances have lights? I'm reading one here that you have a quarter mile to a signal from the corner. But which one -- which entrance is that? Are these right in, right outs, are they all signals? MR. ARNOLD: Why don't I let Mr. Jarvi, the traffic consultant, answer the questions. He's more familiar with what's going on with signalization. COMMISSIONER WOLFLEY: There you go. Thank you, Ray. MR. JARVI: For the record, Reed Jarvi. The exhibit you're looking at has three access points on U.S. 41. Right now none of them would be signalized. There's potential signalization on the far east one. That's the one we're looking at probably being signalized to -- COMMISSIONER WOLFLEY: Is that -- I'm sorry, is that the quarter mile that you were referring to? MR. JARVI: It's -- I don't remember the existing -- or the distance, but it's greater than a quarter mile. COMMISSIONER WOLFLEY: Yeah. MR. JARVI: It's about a half mile, per Nick. COMMISSIONER WOLFLEY: None of the others you say are going to have signals? MR. JARVI: No. The first two, the one, the arrow there and then the middle one would not be signalized. That's not anticipated to be signalized. COMMISSIONER WOLFLEY: The same is for going south on Collier, those are not going to be signalized? MR. JARVI: That's correct. There is a signal at the southern Page 65 March 20, 2008 access ofWal-Mart, which is not shown there, it actually would be below the screen. But the one Ray's at now is a directional left northbound and a right-in, right-out from this project. And the one he's pointing to now would be a right-in, right-out directional northbound again, it looks like. COMMISSIONER WOLFLEY: If you go over on those other three along 41, those are going to be right-in, right-outs, or are you going to be able to -- MR. JARVI: At this point in time we don't know what they would be. It would be a state permitting issue. There could be a directional left in, but they probably will not be signals. The only one we're anticipating being signals is the far east one. COMMISSIONER WOLFLEY: Okay, thank you. MR. JARVI: But it will be an FDOT permitting issue at the time when we go that far. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, transportation question. I believe I read that the level of service on 41 east of the intersection there is a failure, F; is that correct? MR. JARVI: You -- the transportation -- excuse me. In accordance with the concurrency management system, that is a true statement, it is a failed segment. There is approximately 11 or 1,200 cars on that in accordance with the concurrency management system. The standard is I think 1,075. So it's 100 plus over. Actually there's probably about six or 700 cars on the segment at this point in time. COMMISSIONER KOLFLAT: But now we're going to be adding more traffic to that area? MR. JARVI: Yes, sir. COMMISSIONER KOLFLA T: How do we justify that? MR. JARVI: This project is part ofthe consortium that Rich Page 66 March 20, 2008 mentioned that is building -- or rebuilding the intersection of951 and 41, along with a four-lane or two-lane to four-lane expansion ofD.S. 41, east of951. With that improvement there will be adequate capacity for this project. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay, since you brought up the DCA, why don't we talk about that a little bit. I think all of your documentation relies upon that DCA being the solution to that intersection. I have painstakingly gone through the 40 pages of DCA, of which probably 30 are signature pages. In the text I have not found in the DCA a tie to a schedule. Now, if the Target goes in and they get a reprieve from concurrency because of the consortium agreement through the DCA, but the DCA has no time table in which they are mandatorily required to make the improvements on that intersection, and the rest of the 12 or 13 members of this consortium, many of which are residential builders, decide that the market is not ripe right now for them to put up millions of dollars to enact the DCA, there's no guarantee that I can find that that intersection will be improved in time to accommodate the traffic from this Target. And I'd like Nick to at least express his comments about the time tables that I can't find in the DCA and tell me where there is a date specific in the DCA for the completion of that intersection. MR. CASALANGUIDA: For the record, Nick Casalanguida, Transportation. In this agreement, Commissioner, it's not date specific, it's milestone specific. So nothing gets to go until they post the bond -- CHAIRMAN STRAIN: No. MR. CASALANGUIDA: -- which is due in August. CHAIRMAN STRAIN: You're wrong. MR. CASALANGUIDA: Okay. Page 67 March 20, 2008 CHAIRMAN STRAIN: It says county site development permits, SPDA's, PPL's and zoning and building permits can be issued for all projects upon execution of this agreement. MR. CASALANGUIDA: That's correct. CHAIRMAN STRAIN: However, no C.Oo's can be issued until the project milestones are completed-- MR. CASALANGUIDA: That's correct. CHAIRMAN STRAIN: -- the first one which is posting of the bond. MR. CASALANGUIDA: That's correct. So if they post a $54 million bond and they're only allowed to go in Phase 1 by posting of the bond and then the rest of them decide not to -- or there's a default from them, we can call that bond and proceed with the road project and none of the other phases get to go, according to this agreement. CHAIRMAN STRAIN: Okay. But in the meantime, what happens when you issue the permit for Target because they're allowed to by the execution of this agreement before the bond is up? Because the bond doesn't go up for 270 days from November 13th. MR. CASALANGUIDA: They're at their own risk. And every permit that's issued by the county, including the C.O.A., says at your own risk. And that the C. O. will not be issued until the posting of the bond. CHAIRMAN STRAIN: And then once they post the bond, they can get their C.Oo's? MR. CASALANGUIDA: That's correct. CHAIRMAN STRAIN: Although the road still won't be complete, because there's no time tables in the DCA. MR. CASALANGUIDA: Commissioners, I want to be very clear. This is exactly what was presented to you with the Naples Reserve petition, and we approved it because we knew that we would allow a certain amount of development to come on-line with surety of the bond, and that it was a phased approach. Page 68 March 20, 2008 We agreed and we discussed, even at the public meeting, that there would be further impacts to the road system ahead of construction. So that was very clear at the Naples Reserve petition, and I want to make it very clear here. We presented it to the board that way as well, too, that the bond was the surety that we would have that something would be done and the bond was large enough that it would easily cover the intersection in Phase 1 improvements. CHAIRMAN STRAIN: I agree with you, the bond is assurance that something will be done. Give me a date. When will it be done? MR. CASALANGUIDA: Commissioners, I can't tell you when, it has to go through permitting. But we said that to the board and to this commission in a prior meeting, that we would accept a certain amount of congestion. Because consider this: The trip bank that we talked about, or the failing road segments are also part of a trip bank, trips that haven't come on-line yet as well, too. So the failings at that intersection, some of them are on paper. So we knew that we had a certain amount of time that we could accept more traffic at that intersection and that the bond of $54 million, which right now is significant, above and beyond anything that Phase 1 would do, we could easily come on-line if we had to and construct a large majority of that project without Phase 2 or 3 impacting the road, or begin that project. CHAIRMAN STRAIN: Okay, the bond is not put up yet; is that correct? MR. CASALANGUIDA: No, sir. CHAIRMAN STRAIN: Okay. There is no time table once it's put up for the -- once they could get their C.O.'s, and the county then would have to exercise their option or the bond. MR. CASALANGUIDA: They have to duly -- diligently pursue the permits and construction of the project. CHAIRMAN STRAIN: And how successful have you been in completing the project on Vanderbilt Road by exercising that bond? Page 69 March 20, 2008 MR. CASALANGUIDA: That's a difficult question to answer. This bond will be a little different. And the agreement that we have is not your typical construction agreement. It's a developer agreement, I think. To the credit of Attorney Klatzkow, he's provided a pretty good surety in this for the county, that they are at their own risk for C.O.'s if they don't post that bond. CHAIRMAN STRAIN: Well, I think the risk for the public in not getting a road system that's functional if this goes in as approved prior to that road being installed is a much greater risk. So I'm not pleased with the DCA. I think that leaving dates out of it is a huge mistake, especially when we've got something like this coming in. But I have other problems and we'll go on with them. With that, if the commission doesn't mind, I'd like to go through each book as we -- there's three -- I mean three petitions. Why don't we focus on now the specifics to each petition and then go from there. Mr. Murray? COMMISSIONER MURRAY: Before you go there, just let me follow up on something with Nick on that. With regard to the bond, when is the bond called and what is the forfeiture? What is it that triggers it, and is it in whole or is it in parts? MR. CASALANGUIDA: It is in whole. And the bond's called when they fail to perform the permitting instruction. And it's phased. I disagree with the Chairman, I thought we were much better off using phases than dates because of permitting. And we'd be back amending this agreement several times if I put dates on this. They do not get C.O.'s unless they post that bond. And so a lot of things have to happen for this to work well. And it's in their best interest for that to work well, because they forfeit everything after posting the bond if they fail to perform. COMMISSIONER MURRAY: And it's one trigger point? MR. CASALANGUIDA: There are three trigger points. Page 70 March 20, 2008 COMMISSIONER MURRAY: What triggers the calling of the bond? MR. CASALANGUIDA: They fail to perform. In other words, if they don't -- COMMISSIONER MURRAY: At any given phase. MR. CASALANGUIDA: At any given phase. COMMISSIONER MURRAY: So at the very first phase, if it all fell apart, that bond is called. MR. CASALANGUIDA: That bond is called for the entire project. COMMISSIONER MURRAY: I needed to understand that, thank you. CHAIRMAN STRAIN: Nick, what is the first phase? MR. CASALANGUIDA: The first phase is the posting of the bond. CHAIRMAN STRAIN: Okay. So they can't fail to post the bond before they post it, so they're not in jeopardy until they post the bond, right? MR. CASALANGUIDA: But they don't get C.Oo's. CHAIRMAN STRAIN: They post the bond -- MR. CASALANGUIDA: Yes, sir. CHAIRMAN STRAIN: -- they get C.Oo's. MR. CASALANGUIDA: For the first phase. CHAIRMAN STRAIN: What date are they required for the second milestone commencement of construction and road project? MR. CASALANGUIDA: Upon permit approvals. CHAIRMAN STRAIN: Permits approval of what? MR. CASALANGUIDA: Of the road project. CHAIRMAN STRAIN: When are they required to submit for those permit approvals? MR. CASALANGUIDA: It's an ongoing thing, Commissioner. For me to give a date when they would submit, it's a back and forth Page 71 March 20, 2008 between the design, FDOT and the county. So to tie it to a date is extremely difficult for a road project. CHAIRMAN STRAIN: Okay. Let meet ask the question a different way. Is there a date in this document that tells them when they have to submit commencement of construction or road project in order for you to exercise a failure of them and then enact the bond? MR. CASALANGUIDA: No, sir, it's not a date. CHAIRMAN STRAIN: Okay. That's what I'm getting at, where Mr. Murray was going. There are no triggers to exercise the failure to exercise that bond. Basically they put the bond up, they maintain the bond. And I've put those bonds up myself. They take a -- you can maintain them forever. So they maintain the bond, there's no end date to it. So when do we know the road's going to be in? MR. CASALANGUIDA: Commissioner, ifthey post the bond and there's no activity for that permit, the county will notify them that there is no activity to apply for that permit. At that point in time I would believe, with the county attorney's office, that we would say that you were not duly diligently pursuing a permit. And you'd be notified as such. And then if they fail to respond to that and nothing happened, we would probably try and call the bond. And that would be my assumption. CHAIRMAN STRAIN: Mr. Klatzkow, in your legal world when is there -- when would they be deemed not diligently pursuing the permit? So we can give Nick a time table we can put on here and we'll know that it's callable. MR. KLATZKOW: Commercial reasonable time. And I understand that that's not a date in stone, but it's commercially reasonable time. CHAIRMAN STRAIN: Would that be a market-driven date, say? Page 72 March 20, 2008 MR. KLATZKOW: It depends upon the permitting agencies, it depends upon the design in the road. Ifwe get to a point where it's clear that the developer is simply dragging their feet, we will call the bond and then we will do the project ourselves. CHAIRMAN STRAIN: Can someone tell me, after the posting of the bond how many years will go by before you'd consider calling the bond? MR. YOV ANOVICH: Can I put one other thing on the record while we're talking about this before you get to that. CHAIRMAN STRAIN: Sure. MR. YOV ANOVICH: I think what people are forgetting is we don't get this bond for free. Okay? We're going to pay probably about two percent, maybe a little bit more, maybe a little bit less, annually for the bond. So it's going to cost about a million to a million-five a year to keep the bond in place. So there's that -- you know, that's an interest carry on the bond. You're not going to let that go forever, because you can't afford to. We're going to move forward. This has been negotiated. We've been through the process both in front of the planning commission and the BCC as to the terms of the developer contribution agreement. It was approved by the Board of County Commissioners in its current form, with the understanding that we needed the ability to get some cash flow by getting some of the projects approved now to be able to afford to do the 54, $55 million improvement. The developers are taking the risk. They're ponying up a bond of 54 to $55 million. It's going to cost them a million, a million-five a year to keep that bond in place. And the county understood those risks going in. The county commission determined that that would satisfy their concerns regarding concurrency for this project and every other project that was part of the DCA. Page 73 March 20, 2008 And I don't believe that this is the arena to renegotiate a developer contribution agreement. We're past that point. And I think that we should be -- we've addressed the growth management concerns by providing mitigation, and a DCA that the Board of County Commissioners accepted, and it provides our concurrency in the terms of the document. And I think we should move on from that point. I mean, you may not like the agreement, but the agreement was negotiated and struck and was explained to the planning commission prior to it even going to the Board of County Commissioners. CHAIRMAN STRAIN: Richard, that's a fine statement. I understand that you're talking about concurrency issues, but there are issues beyond that in the GMP that I believe that you're not meeting the time tables of because there is no time table performance in that DCA above and beyond concurrency. And I will-- can isolate those when we finally get done. Policy 1.2.B: Board of County Commissioners shall review all rezone petitions, SRA designation applications, conditional use petitions and proposed amendments to the future land use affecting the overall county-wide density and intensity of permissible development when considering their impact. And both were labeled D in the formula, and the formula is the one that determines the impact based on population and other things. I just think it's our duty to look at prior to concurrency elements setting the stage for concurrency failure is not necessarily the best thing to do. We learned that with the other Target at the corner ofI-75 and Immokalee Road, and I certainly don't want to see it duplicated here. So with that, I guess I've exhausted my discussion on that and I'll try to move on to other things. We have three packages in front of us with three petitions. The first one is the small-scale plan amendment. I certainly would like to Page 74 March 20, 2008 ask the commission if they have specific questions from the text of that amendment of the applicant before we move into the staff presentation. Anybody here have any questions? (No response.) CHAIRMAN STRAIN: We're starting with the small-scale plan amendment. And that was the CPSS document. Wayne, I have one question concerning your comments at the HOA meeting, or someone's, I guess verbal commitments made by the developer. The statement on Page 9 of the staff report under neighborhood informational meeting says, verbal commitments made by the developer. Quote, we will come and speak to HOA's off the record, end quote. Why did you need to speak to them off the record? MR. YOV ANOVICH: I don't remember that being an exact quote. I mean, I remember we said we would meet with any HOA that wanted to meet with us regarding the project outside of the NIM. I can't say that that's an exact quote of what we said. But we basically said we're happy to meet with you if you have any questions outside of this neighborhood information meeting. CHAIRMAN STRAIN: Okay. Then I'll ask staff to either concur with you or otherwise when we get to that point. MR. YOV ANOVICH: Okay, thank you. Good point. It came up in the context of could we guarantee a Target. And we could not because we don't have the authority to guarantee a Target. And now -- and that came back to me. That was the context. He said we are a Target developer, but we cannot guarantee that there's going to be a Target on this site. That's the comment off the record. Because he was not allowed to officially state on the record, and we're still not allowed to state officially on the record that a Target is going to be here, because there's no guarantee. That's the context. Page 75 March 20, 2008 COMMISSIONER MURRAY: And I can support that. MR. YOV ANOVICH: It came back to me after Mr. Jarvi said -- CHAIRMAN STRAIN: I understand, thank you. Appreciate the clarification. I don't know who's best to answer this. There's a memorandum attached to your document from Kite Realty Group. It's from actually John Fox to Eric Strickland. I'd first like to know who John Fox is. MR. YOV ANOVICH: John Fox is an employee of Kite. And he is responsible for doing market analysis to assist in determining whether or not to purchase the property as a potential commercial development. So he provides market analysis internally to Kite. CHAIRMAN STRAIN: Okay. So he provided an internal memorandum to Eric Strickland of basically two pages -- actually maybe a full page, if you took off the header of the memorandum. Attached to it are 10 pages of demographics, two pages of residential subdivision totals, one radial map, and then the memo. And that's your basis for your market study, which by the GMP requires a commercial study for the validity of this small-scale plan amendment change; is that correct? MR. YOV ANOVICH: I wouldn't say that. I would say that his memo is a summary of their internal analysis to determine whether or not there was a market demand for this particular piece of property. Kite is in the business of developing shopping centers. They decided that based upon doing the -- they contact other people. And I believe his memo referenced Mike Timmerman, who I think we all know knows the market in Collier County regarding approve (sic) residential units, already constructed residential units. And based upon that review and analysis, they made the decision to go forward and buy the property to develop it as a shopping center. They don't buy property, hold it and then hope that the market will come. They buy property and develop it immediately. Page 76 March 20, 2008 So I would think that their data and their analysis is probably the most reliable data and analysis to determine if there is in fact a market for the type of development they're seeking today. CHAIRMAN STRAIN: Okay. So any time an applicant wants to submit their own data and analysis for a GMP amendment, I guess that maybe we set a precedent then with staff that we're not looking at professionals necessarily, we're looking at internal memorandums between applicants and -- MR. YOV ANOVICH: Well, I don't think that's a fair statement. And I think what the compo plan says is a market demand and service area for the proposed commercial land uses to be used as a guide to explore the feasibility of the requested land uses. Which they in fact did. And your staff in fact reviewed it against their own internal information that they have. Because they do collect those daily -- I mean, not daily -- yearly. And they in fact I think made a statement where they may have disagreed with some of the conclusions of this individual. And I think this individual is in fact a professional. I don't think it says that we have to go pay another entity to do the market research. Your staff is capable of reviewing the data we did supply. In fact, we provided some information initially that Mr. Arnold prepared. They asked for additional information. That was provided by Kite. And your staff reviewed it against what they knew and made the professional determination that we had met the comprehensive plan requirements. CHAIRMAN STRAIN: Are there any other questions on this first packet before we go to a staff presentation on this one? (No response.) CHAIRMAN STRAIN: Okay, can we have staff presentation, please? MR. THOMPSON: Good morning. CHAIRMAN STRAIN: Good morning. MR. THOMPSON: Give me one second, I'm going to pop a map Page 77 March 20, 2008 up real quick. Zoom in on that one for me. As referenced -- for the record, Joe Thompson, Comprehensive Planning Department. As referenced by the applicant, this is kind of threefold, three components that associated with this particular petition. On the compo planning side what we have is this small-scale Growth Management Plan amendment that's being requested. The current future land use, as you see on the visualizer here, is actually urban coastal fringe subdistrict. You have the subject parcel contiguous to mixed use activity center number 18, which is the most southern activity center on the Future Land Use Map of the county. The request essentially is asking just to redesignate the parcel from the existing use of urban coastal fringe subdistrict to mixed use activity center. So that's essentially what they're asking. It's about a 7.3-acre site looking at this independently from the overarching rezone that's kind of in inexorably linked to this petition. Just going kind -- jumping right to the findings and conclusions, trying to be real succinct here, the outline was in the staff report. Before I get right into it, I'm going to reference the data and analysis that was in the petition. There was a market study that was submitted that Commissioner Strain referenced. Staff analyzed that and looked at it from more or less -- it was from the demand side of the analysis. They were looking at subdivision activity in the area in the south Naples planning community and also demographic and economic information that's associated with the people that live in that area and whether or not that would be an adequate demand for additional commercial. There were some discrepancies that were part in that, but we did not note that in the staff report. Specifically from the planned units that were referenced, some of the subdivisions were actually less than what the ultimate number was. Specifically I think Fiddler's Creek was mentioned as one that wasn't correct. Page 78 March 20, 2008 But then again, when you look at the radiuses that are on the map, there's only portions of some of those subdivisions within certain radiuses. So those numbers aren't going to be exactly right on. With respect to the commercial side of it, the supply side, the applicant actually provided a suitability and compatibility analysis that looked at just the 2005 commercial inventory in the South Naples planning community. And the argument there was that there wasn't enough regional and commercial -- or regional and community sites for commercial activity in the South Naples planning community based off of a 20-acre number that was used. Now staff recognizes that point, but at the same time I guess the only two issues or shortcomings that we identified with that was number one, specifically that they didn't analyze any neighborhood commercial sites with respect to goods and services that could be garnered from those sites by individuals who live in the area that would also be at community and regional sites, but there are a number of neighborhood sites that could serve that need. In addition to that, there was no actual analysis given with respect to aggregation of sites less than 20 acres that could actually be used in a regional and community capacity. But notwithstanding those two issues, staff still feels that the data and analysis that was submitted was adequate and supports this request. So kind of backtracking again, the other point that I wanted to reference was that adoption of this amendment would support future rezone requests for any intensity of development, consistent with the mixed use activity center. That was another point that I just wanted to state on the record. But just in summary, staff supports the petition request. If you have any questions, I'd be more than happy to address them. CHAIRMAN STRAIN: Okay, we're on the first document, the Page 79 March 20, 2008 CPSS document. At this time with the staff presentation, does anybody have any questions of staff on this one? Ms. Caron? COMMISSIONER CARON: I just wanted to comment that I think the last point that was made is probably the most important in that we're looking at a plan that shows this as preserve and water management. It is subject to any activity center designation in the future. MR. THOMPSON: You are correct, in the future. Absolutely. CHAIRMAN STRAIN: Joe, on the Page 7 of your staff report -- MR. THOMPSON: Yes, sir. CHAIRMAN STRAIN: -- you have a sentence that says, the activity center concept is designed to concentrate new and existing commercial zoning in locations where traffic impacts can be readily accommodated. What does the word readily mean? It's in the GMP as well. You quoted that directly out of the GMP. MR. THOMPSON: Yes, I did, it came directly out of the -- readily accommodated, I guess that's up to interpretation. Depends on the individualized conception as to what that means. But readily accommodated would be based off of, I would assume, the level of service that's associated with the road. However, given the transportation's review, they view the DCA as adequate. CHAIRMAN STRAIN: Okay. From a compo planning viewpoint, does readily mean a number of years of any kind? MR. THOMPSON: It's hard to pinpoint a definitive answer with respect to what readily means, sir. CHAIRMAN STRAIN: Okay. The compo plan also references the distance and radial miles that a mixed use activity center will perform its commercial land and developed commercial use study, and that's supposed to be within two miles. Existing patterns of land use within two miles. The documents submitted were one, three and five. Page 80 March 20, 2008 MR. THOMPSON: Correct. CHAIRMAN STRAIN: Do they still meet the acceptance to your department, even though they don't meet the exact intent of the compo plan exactly? MR. THOMPSON: Based off of our analysis, yes. CHAIRMAN STRAIN: Okay. In your analysis, on Page 8, I think you said that in the last sentence, South Naples planning community amounts to 430.36 acres for commercially zoned vacant land. And you said it is by no standard insufficient or inadequate. Now, we've been through some GMP amendments Monday of this week and we've got another one Monday of next week that have commercial components. And your department's been very careful to actually recommend denial when the commercial studies were not adequate to the needs. But I notice that the commercial study here is quite different in regards to, say, completeness that some of the others have provided. Yet on this one you recommended approval and those you did not. Can you state for the record why? MR. THOMPSON: Well, for the record, this comment in terms of the 434.36 acres is not representative of the available commercial-- regional and community commercial that would be in the South Naples planning community. And staff agrees with that point. But the point that was being made here is that when you look at it from an overarching commercial perspective on a smaller scale, that there is sufficient commercial acreage available, but not the regional and community size. CHAIRMAN STRAIN: Okay. Another sentence on the same page, fourth paragraph down, the data provided in the market analysis supports the assertion related to the argument for increased commercial capacity based upon strong residential growth in the subject area, as demonstrated through 2005 and 2006. MR. THOMPSON: Yes, sir. Page 81 March 20, 2008 CHAIRMAN STRAIN: One of the complaints that I saw from your department, or comments I should say, in those that we discussed last Monday and the one coming up is that we have new data in 2006 or seven that shows a decline in population. Yet in this one it seems that you're accepting the earlier data. Is there a reason for that? MR. THOMPSON: Well, that's when the petition was submitted. So it's one thing to recognize that I think in the public hearing process as a change that's happening and a substantive one at that. But looking at it from the data and analysis that was provided from a timing perspective to us, we can only analyze what was given to us at the time. And to continually ask for further updates, it's almost like a vicious cycle. There has to be a point where you know what cycle the petition came in. That's when the analysis and data needs to be, from that time frame. It's a snapshot. And if there's stuff that's pertinent in the future to reference during the public hearing process, I would agree with that. And that's why the comment was incorporated in the staff report. CHAIRMAN STRAIN: The ones we heard last Monday were -- seemed to be older ones, too. But I understand your answer. In the Kite memorandum, the internal memorandum that they used as their market study, they have a sentence that says, thus the estimates from conventional demographic sources are likely undercounting this area, as their methodology cannot keep up with the rapid growth. Do you agree with that? MR. THOMPSON: Now I don't, no, given the climate now for the residential downturn. But at the time that this was internally circulated, I would have agreed with that, based off of the quarterly numbers in the report. CHAIRMAN STRAIN: Okay. That's the only questions I have of staff. Does anybody else have any follow-up questions? (No response.) Page 82 March 20, 2008 CHAIRMAN STRAIN: Thank you. Mr. Weeks? MR. WEEKS: For the record, David Weeks ofthe Comprehensive Planning Department. Mr. Chairman, I'd like to get one more piece of information on the record in the context of the line of questions that you were asking Joe about the market study. As Mr. Y ovanovich stated I think in the very early part of his presentation about this 7.3-acre parcel that is subject of the small-scale plan amendment, it's important to keep in mind the context. You know, where is that property located. And that particular property has commercial zoning to the east, commercial zoning to the south, commercial zoning to the west, and it's fronting on U.S. 41, a major arterial. My point is that though it is relevant to look at some type of commercial demand analysis, and that is one of the factors to be considered in the rezoning petition, and also commercial demand is also a relevant factor in evaluating the comprehensive plan amendment, it is not the only factor. And from a staff perspective, that 7.3-acre parcel is I would not say completely, but it's almost de facto commercial. Right off the bat staff would agree that residential development on that property probably is not viable, particularly when you consider besides what the surrounding uses are and its frontage on a major roadway. Also because of the comprehensive plan at that location would limit the property to three units per acre, the only exception being for affordable housing, and we don't think that's likely because of the small size of the property and also because there's an affordable housing project in the PUD right to the south. And there's a housing element policy that speaks to not having an aggregation but rather spreading affordable housing in the community . I say -- I would not automatically say well, it's de facto Page 83 March 20, 2008 commercial, leaning strongly in that direction, but not automatically. Because there are those other types of uses that are allowed throughout the urban area: Institutional uses, essential services, recreation open space uses. So it's not a matter of they can't do residential, they must go commercial. There's an intermediate step. But staff strongly is of the opinion that this is almost de facto commercial. We do beg the question, what else could reasonably be done with this piece of property. That's a strong consideration here, besides any analysis of market study are market demands. CHAIRMAN STRAIN: Thank you, David. And just so you know, I absolutely agree with you that this piece of property should be part of that mixed use activity center. This petition I would certainly think is the right thing to do. I don't -- I wanted to make sure for the record that the way they got there was acceptable. Because to me it's in direct contrast to the way your department has taken its position on some of the GMP amendments that came through. I understand why you did, but I wanted the record to be clear, because this to me does not match up to those analyses that you previously denied. So that was my purpose for the questioning on this one. MR. WEEKS: What it is-- CHAIRMAN STRAIN: The PUD on the other hand is one I have grave concerns over because of the traffic issue. But this particular one only makes sense. But I understand. MR. WEEKS: If I may make one other point of distinction between this small-scale petition and the other comprehensive plan amendment you have recently reviewed both last week and coming up next week. This is a small-scale comprehensive plan amendment. Those are treated differently in Florida statutes. Small-scale amendments number Page 84 March 20, 2008 one must be 10 acres or less in size, and they're limited to a map amendment only. And that's not the case with the regular large-scale petitions that you again reviewed last week and coming up next week. The statute treats them differently, specifically in that there is a presumption of compliance with Florida statutes. There is no review by the Department of Community Affairs of a small-scale amendment to determine if it is in compliance with state law. It's a presumption that it is, so long as it qualifies for small scale. That doesn't negate the requirement for data and analysis, but it does put a little different perspective on a small-scale amendment; I would say a different burden on the small-scale amendment than it does for the regular large-scale petitions. CHAIRMAN STRAIN: Thank you, David. Any questions of staff? (No response.) CHAIRMAN STRAIN: Okay, we've got the applicant and the staff presentation -- MR. THOMPSON: Thank you. CHAIRMAN STRAIN: -- on this particular small-scale plan amendment. Are there any registered speakers for this one, Ray? MR. BELLOWS: No registered speakers. CHAIRMAN STRAIN: Okay. I guess it's at the option of this panel. Would you like to see us vote on each one of these as we conclude our questions on them, or come back and do them all afterwards? COMMISSIONER SCHIFFER: Each one. CHAIRMAN STRAIN: Okay. Is -- then we'll close the public hearing only on the small-scale plan amendment issue and open the panel up for discussion prior to the motion. Is there a discussion? Page 85 March 20, 2008 (No response.) CHAIRMAN STRAIN: Okay, is there a motion from anybody? Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah. I move that we forward Petition CPSS-2006-1 for the recommendation to transmit. CHAIRMAN STRAIN: Is there a second to the motion? COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Mr. Vigliotti seconded the motion. Now, is there discussion on the motion? (No response.) CHAIRMAN STRAIN: Hearing none, I'll call for the vote. Oh, Mr. Kolflat, do you have any -- does anybody have any discussion? MR. YOV ANOVICH: I think the corrections should be for adoption, because you don't transmit a small scale, it goes right to adoption. That's the only -- CHAIRMAN STRAIN: Well, thank you for the clarification. He used to be a county attorney. Okay, does the motion-maker accept the clarification-- COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: -- that the motion's made for adoption, recommended adoption? COMMISSIONER VIGLIOTTI: (Nods head affirmatively.) CHAIRMAN STRAIN: The second accepts it as well. Discussion? (No response.) CHAIRMAN STRAIN: Hearing none, all those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. Page 86 March 20, 2008 MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: All opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0 for the small-scale plan amendment only. Item #9C PETITION: PUDZ-2006-AR-10875, TAMIAMI CROSSING CPUD Now, we'll go into the one that may be more difficult. And Richard, if you have a further presentation you want to make on the PUD aspect, the first PUD, which is the Tamiami Crossing ones, let's start with that and then we'll do a staff presentation. MR. YOV ANOVICH: What I was going to ask for, maybe you want to do the staff presentation. But before we get into more questions or response from us, if we could have five or so minutes to talk about a height issue raised by Mr. Schiffer, where we can have just a few minutes to focus directly on that issue and a quiet time to maybe come back with a proposal regarding height of the building. That's -- as a modification to the PUD. I'm just asking for that. I don't know when you want to give it to us, if you want to give it to us after the staff presentation or now. Whatever you prefer. CHAIRMAN STRAIN: We used to give my son quiet time. I guess it's kind of like that, huh? MR. YOV ANOVICH: Yeah, we do need some quiet time. CHAIRMAN STRAIN: He got out of hand, too. You know, interesting, the timing. We could take a break right now and try to work through lunch to finish this up. Because I don't Page 87 March 20, 2008 think we need to come back after lunch for a few remaining minutes like we did Monday. So with that in mind, why don't we take a break for 15 minutes right now. Come back at -- well, let's make it 11 :30 even, and then we'll resume at 11 :30 and try to finish up shortly after that. Is that okay with everyone? Okay. We'll take a break till 11:30. (Recess.) CHAIRMAN STRAIN: Okay, if everybody will resume their seats, we'll come back after Richard's time out to see how reasonable he's become. MR. YOV ANOVICH: Time out would have implied that I was misbehaving. I asked for quiet time. CHAIRMAN STRAIN: Oh, quiet time, you're right, okay. Well, let's go forward with your quiet time response here, sir. MR. YOV ANOVICH: Okay. One of the issues that Mr. Schiffer brought up regarding building height and how close it was to -- it could be 60 feet within 25 feet of U.S. 41, the wall height. We would propose that we would create a ratio of basically two to one. So for each two feet of building height, we would come back one foot from the road for where the actual -- the zoned building height would be measured. We'd keep the actual building height number the same because of architectural embellishments we have to do under the code. But from a setback from U.S. 41 standpoint, we would propose that that type of ratio, in response to the -- you know, the parking deviation as far as having parking in front of the building. Weare -- this is an odd-shaped site. The type of user we have really doesn't lend itself to putting parking right on u.s. 41. We tried that. If we could have made it work within reason, we would not have been asking for this deviation. What we're proposed -- and in your package is additional Page 88 March 20, 2008 landscaping to help shield the parking field that you will see from Collier Boulevard. So we would hope that the parking -- I mean the height ratio for the building, as well as the additional landscaping would address those two concerns as far as building height and the deviation for the parking. COMMISSIONER MURRAY: Sounds good. COMMISSIONER WOLFLEY: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir, Mr. Wolfley. COMMISSIONER WOLFLEY: Did that -- are we going to address, as I believe Brad had brought up, Mr. Schiffer brought up, the view, the look of coming up 41 from the south, or either way, actually, the view of the back end of a building? MR. YOV ANOVICH: Well, again, we're required to treat it as a front facade, a primary facade. So it will -- and you -- I know enough to go a couple of questions deep on the architectural code. But depending on the length of the building, you'll have to bump the building back in onto the site so it won't be one long wall that you'll see from u.s. 41 as you're driving west. Or east, either way. But mostly west is where you're going to see it. And then you're -- with the requirement that we have a two-for-one as far as the building height goes to the setback, we hope that would also help address the concern of, you know, we're going to have a 60-foot wall right on U.S. 41. We won't have a 60-foot wall now, based on the two-to-one ratio. And the architectural standards itself take care of it has to look like a front versus the rear. COMMISSIONER WOLFLEY: Okay. Because my concerns are mainly that the traffic that's moving, it won't be a big concern, but since it may end up being a parking lot there on 41, that would be a concern, because they'd have nothing else to look at. MR. YOV ANOVICH: Well, it won't be a parking lot on 41. COMMISSIONER WOLFLEY: Well, I'm referring to the road. Page 89 March 20, 2008 Because there was a reference made by the developer that they're making it comparable to Immokalee, which at times would -- MR. YOV ANOVICH: No, that was me, and I never should have said -- Immokalee Road's not our fault. COMMISSIONER WOLFLEY: I had the visual, Rich, and I'm telling you, it wasn't a pretty one. MR. YOV ANOVICH: Sorry. I meant the center was a pretty center, not Immokalee Road. CHAIRMAN STRAIN: So we understand what you are trying to propose, your Exhibit B, which is your development standards table, can you tell us on that table what would be changed as a result of the setback criteria that you and Mr. Schiffer are suggesting? I'm assuming, Brad, you're in uniform with this? COMMISSIONER SCHIFFER: Yes. MR. YOV ANOVICH: For each two feet -- CHAIRMAN STRAIN: What box on the table? Let's start. COMMISSIONER SCHIFFER: It would be from Tamiami Trail. CHAIRMAN STRAIN: Principal uses? COMMISSIONER SCHIFFER: Yeah, the minimum yard. And I guess it would be worded 25 feet -- or whichever is the greatest of 25 feet or two-to-one ratio to height. CHAIRMAN STRAIN: So if you have a 60-foot high building, you'll be at 30-foot setback. COMMISSIONER SCHIFFER: Correct. CHAIRMAN STRAIN: So all you've picked up is five feet, and that makes a significant difference? COMMISSIONER SCHIFFER: Well, I mean, I think the biggest testimony was that they're not going to have a 50-foot building, that 35 feet is the height of these stores. My experience with the stores, I think that's correct. I don't think he's kidding there. Page 90 March 20, 2008 So the reason it wouldn't be good to limit it less than that is you could for example have that be the bearing wall that's also shielding the air conditioning units so that we could get in trouble I think with that, too. CHAIRMAN STRAIN: Okay, would that apply to both Tamiami Trail and Collier Boulevard? I don't see why it wouldn't. COMMISSIONER SCHIFFER: I think you could do that, yeah. I think when we put it in, though, we should put -- make it like 2- H for horizontal per one -- I mean the other way around, 1- H per 2- V, so the people -- a two-to-one slope people will get confused. I think the engineering department does it different than a lot of other people. MR. YOV ANOVICH: It will come back, I'm assuming, on the consent agenda, so we'll hopefully get that written up correctly. CHAIRMAN STRAIN: Right. I think you probably have to use some kind of symbol and then asterisk down below it explaining what it means. MR. YOV ANOVICH: Sure, okay. CHAIRMAN STRAIN: But I think the intent can be clarified in any stipulations going forward. COMMISSIONER SCHIFFER: And Mark, just to add. CHAIRMAN STRAIN: Sir. COMMISSIONER SCHIFFER: David, the architectural standards are going to beat them up. The look of the wall, they way they drew it, is naive. They're going to -- one example, 60 feet of the percent of the facade is going to be 40- foot setback, you know. And a pretty good distance. That's a long wall. It could be 10, 12 feet back. So there'll be some notches in that wall. COMMISSIONER WOLFLEY: Thank you, Brad. CHAIRMAN STRAIN: Okay. We're going to be working -- we had asked earlier after your presentation some general questions. We've been going through the documents one at a time. We're on Page 91 March 20, 2008 the Tamiami Crossings PUD document only at this time. Do you have any more presentation you want to make before we open it for questions? MR. YOV ANOVICH: I think you want it from staff. CHAIRMAN STRAIN: Your speaker's not working. MR. VARNADOE: Behind you in the blackboard. MR. YOV ANOVICH: Yeah, I see it now, thank you. No, we're -- I think we're done as far as the presentation goes. We're available to answer questions, or if you wanted to go to staff, I wasn't sure where you wanted to go next. CHAIRMAN STRAIN: We'll get any cleanup questions with you, then staff. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: Ms. Caron, did you have a question? COMMISSIONER CARON: Yeah. Back to Tract A, the portion that you're taking from Artesa -- MR. YOV ANOVICH: Yes, ma'am. COMMISSIONER CARON: -- will only be used for parking. MR. YOV ANOVICH: Yes, ma'am. COMMISSIONER CARON: Is that correct? MR. YOV ANOVICH: Yes, ma'am. COMMISSIONER CARON: So this Tract A building will not infringe into that Tract A that you were -- or from the property you were actually taking from Artesa? MR. YOV ANOVICH: It will be parking and landscaping. COMMISSIONER CARON: Okay. Thank you. In order to put a big box there on C, give me a square footage for that. Will you use the whole 235 square foot? Is that -- MR. YOV ANOVICH: No. I don't know if we know -- well, 185 would be where the C is. And then the remainder would probably -- will be between B and A, Tracts A and B. And that C is really applicable to the entire commercial piece. Page 92 March 20, 2008 It's not a Tract C. But I think you and I are talking about the same thing. COMMISSIONER CARON: I'm talking about the -- MR. YOV ANOVICH: I just wanted to make sure you and I were talking about the same thing. COMMISSIONER CARON: Yeah, the rectangle. Excuse me. MR. YOV ANOVICH: Yes, the building envelope. CHAIRMAN STRAIN: Any other questions of the applicant at this time? (No response.) CHAIRMAN STRAIN: Richard, this may not be one you can answer, but you may have been at the EAC meeting. They have a stipulation, and I'm wondering where they came up with this. Storm water management control elevation discharge shall be 4.9 feet NGVD or above. Where did that come from? I mean, that's -- MR. YOV ANOVICH: It came from our actual permitting, South Florida Water Management District permit number, as far as what that would be. And we agreed to it. And it's in relation to the preserve area to the south, I think that's the direction, dealing for Artesa. It was a control -- CHAIRMAN STRAIN: Then you had engineering to support the 4.9, it wasn't just pulled out of the air. MR. YOV ANOVICH: Correct. It was based upon the engineered drawings. CHAIRMAN STRAIN: Okay. And that's pursuant to South Florida Water Management District, I would assume. I have a question on your master plan. And I know you seem to have mollified some of the concern about being right on top of Tamiami Trail. When the Wal-Mart went in, it correctly so sets itself back from the roadway, and they got the parking in front and it's not an Page 93 March 20, 2008 unpleasant drive to go by. Your building's right on the road. Why wouldn't you move that building up against that back boundary with Artesa up against that preserve and put the parking around it? MR. YOV ANOVICH: I'm going to let Wayne -- CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: Yeah, and I kind of supported that in our time out over here. That was my points. I mean, obviously they're trying to hold the rectangle the best they can. MR. STRICKLAND: Eric Strickland from Kite Realty Group. In looking at the site plan and various positions for the retail building on the site, one of the thoughts was to keep the component components together and the parking field together from a refill formatting standpoint, a safety security operation standpoint, you know, consolidating the loading areas in one area. Specially and -- so that's how we came up with one contiguous pIece. In placement of the piece on the site we did look at several options. And we've tried to allude throughout the presentation the uniqueness of the shape of the property. Not to say that there was impossible circumstances, but definitely unique. We had gotten to this position after looking at it, as you suggested, with the back facing the preserve. Primarily to align with the Wal-Mart and the traffic that is along the 951. So being consistent with their layout in that direction. Also, in this respect the building is along 41, that's obvious. The building will act as its own buffer, breaking the vision -- eliminating most of the vision to the parking areas, with the exception of the out-lot areas and what's to the side of the building there. So in some communities they call that a build forward design and it's desirable. Weare hearing here that it's the opposite of that, that there is concern. Page 94 March 20, 2008 We do understand the architectural components that will need to be applied to that, such that it is a primary facade, you know, worthy of this built forward layout. So I don't know if that helps shed any background to how we had gotten here. CHAIRMAN STRAIN: Well, I understand now by what you've said how you got there. But I don't see why it wouldn't have been possible to move it back to that preserve boundary line. I understand how you got there. But in our GMP there are other issues that need to be considered. It says mixed use activity centers are intended to be mixed use in character and they are generally intended to be developed at a human scale to be pedestrian orientated. I'm not sure one giant box meets the intent of that criteria. Although it would be more palatable if it was off the roadway so we're not entering a wall coming into our community. I just don't -- I don't understand why still that couldn't be done. I understand why you didn't do it. I don't know why it couldn't be done, though. I haven't seen a plan that shows it's impossible to do. And I think that would be a highly more palatable way to handle this project than dumping right against our entry as we enter into our community. So that's just my thoughts on it. COMMISSIONER WOLFLEY: Mr. Strain? CHAIRMAN STRAIN: Yes, sir, Mr. Wolfley? COMMISSIONER WOLFLEY: Along those lines, what is the depth -- in other words, it's a rectangle. What is the shorter leg; in other words, the depth of that preserve? MR. YOV ANOVICH: Of the preserve? COMMISSIONER WOLFLEY: Of the preserve. I just couldn't find a scale here. MR. YOV ANOVICH: We'll scale that for you. You're talking about this preserve right here? COMMISSIONER WOLFLEY: Actually no, right there where Page 95 March 20, 2008 the finger is. MR. YOV ANOVICH: That one? Mr. Wolfley, that one? COMMISSIONER WOLFLEY: Yes. MR. YOV ANOVICH: Okay, we'll scale that off for you. COMMISSIONER WOLFLEY: I appreciate it. It would just help me visualize. CHAIRMAN STRAIN: Okay. Richard, I have one more comment on your PUD. Item I, permitted uses. You're talking about the maximum 235 square feet of commercial floor area. Is that a gross square feet? Is that correct? You're not thinking net, are you? MR. YOV ANOVICH: It's gross. I don't like that word. CHAIRMAN STRAIN: Huh? MR. YOV ANOVICH: I don't like that word. CHAIRMAN STRAIN: Well, careful, you get a time out. So it would be gross square feet. Enter it into there. That's -- for now. I got a lot of questions of staff, but I'll -- that's all I've got of the applicant. Anybody else have any more questions of the applicant? (No response.) CHAIRMAN STRAIN: Okay. David, would you like to go forward? MR. MOSS: Good morning, Commissioners. John-David Moss, Department of Zoning and Land Development Review. The application met the requirements of the Growth Management Plan and also the Land Development Code. The applicant, as you can see in the staff report, is requesting several deviations. Staff only supported three of those. Deviation number one, to not provide internal landscaping between separately platted lots was the one that staff didn't agree with. But of course that was before we were aware of Mr. Arnold's request for just that one portion of the site that's just north of Tract A. Page 96 March 20, 2008 He wasn't clear on that in the application, so I didn't realize it. So that is something that staff could probably live with, as long as that deviation is just for that portion of the site. I also wanted to point out that the applicant is requesting zero foot setbacks for accessory structures internally. And staff also does not support that request. We think that it should be the same as for the principal structure. CHAIRMAN STRAIN: Could you be more clear now? Ifwe're looking at Exhibit E and their list of deviations, which ones, A, B, C and D, does staff support or does staff need to see amended? So we're very clear on what you're recommending. MR. MOSS: Right. Deviation number one is the only one that staff was not supporting. And if you look in the staff report, beginning with the deviation section -- CHAIRMAN STRAIN: I did. MR. MOSS: Okay. CHAIRMAN STRAIN: I just want to use the PUD document as MR. MOSS: Gotcha. CHAIRMAN STRAIN: -- a guide so that when we recommend stipulations, we can refer it to a section in the document. MR. MOSS: Okay. So it's the first one, A, with landscape buffers that's in Exhibit E. CHAIRMAN STRAIN: Are you suggesting any changes to any of the others, B, C and D, or is B, C and D okay as stated? MR. MOSS: B, C and D are okay as stated. Regarding C, the parking distribution, staff also had the same questions that you're having now, wanting the applicant to reorient the building to put it adjacent to the preserve, but was told that it wouldn't fit. So that's why we had them come up with the final exhibit in the PUD document, which is Exhibit B, which provides an additional landscape buffer along Collier Boulevard -- or excuse me, along -- no, Page 97 March 20, 2008 that's right, along Collier Boulevard to obscure the view of all the parking that would be located there. CHAIRMAN STRAIN: Okay. So let me understand this. If an applicant comes in and can't meet the standards and they request a deviation that you don't believe is really the right deviation to go but they still want to do it anyway and they want to put five pounds in a 10-pound sack, it's okay as long as they come up with another buffer or something that -- and that's a policy that you guys believe is the right thing to -- MR. MOSS: Well, I just wanted -- I just wanted them to mitigate it. And the rationale behind locating the building -- locating the parking on two different sides of the building is so that you don't have the sea of parking that's visible from the roadway. And I thought that enhanced buffers, that what they provided in Exhibit G, would achieve that. CHAIRMAN STRAIN: If the structure C was a little bit smaller, do you think it could -- I mean, I'm not saying it couldn't now, but if it was a little bit smaller, could it fit against that property line? MR. MOSS: Yes, of course it could. CHAIRMAN STRAIN: Thank you. Is there anything else in your presentation before we get into questions? MR. MOSS: No. I'll take any questions you might have. CHAIRMAN STRAIN: Do we have any questions of staff anybody? (No response.) CHAIRMAN STRAIN: Well, David on your recommendations, number four, is that a recommendation that comes from a code section? MR. MOSS: Let me see. CHAIRMAN STRAIN: It's talking about the Harvey Harper methodology. Page 98 March 20, 2008 MR. MOSS: Oh, in number four that was a stipulation that was recommended by the environmental services staff that it be included. CHAIRMAN STRAIN: Do you know why then on Page 13 that wasn't added to that section of Page 13? MR. MOSS: No, it should be. It should be included as part of it. I guess the applicant didn't add it. But that's why staff stipulated it, since it wasn't in the developer commitments that were provided by the applicant. CHAIRMAN STRAIN: Okay. But you just said because it wasn't on Page 13 because a developer didn't add it. You're saying that the developer writes the staff report? MR. MOSS: No, no, no, staff was requesting it of the applicant. The applicant did not include it in the developer commitments, and so staff added it as a condition of approval in its staff report. CHAIRMAN STRAIN: Okay. But didn't you say the EAC recommended it as a condition of approval as well? MR. MOSS: The environmental services staff did, not the EAC. CHAIRMAN STRAIN: Oh, okay, that's where I'm getting mixed up. Okay. Now, then lets -- under what code provision are they asking of that under? MR. MOSS: I don't know. Maybe someone from environmental services staff could answer that. I'm not sure. CHAIRMAN STRAIN: Well, I need that answer. So, I mean, I think that's critical. If they're going to ask for things that are above and beyond the code, we need to know that. And is that going to be asked of everybody or is it something that's in the code? And specifically I want to see the code section -- MR. MOSS: Sure. We'll get the answer for you. CHAIRMAN STRAIN: -- and I'll pull it up right here in the screen. Are there any other questions anybody else may have before we Page 99 March 20, 2008 continue on? (No response.) COMMISSIONER MURRAY: Quiet time. CHAIRMAN STRAIN: Another quiet time. THE COURT REPORTER: Were you sworn in? MS. BURGESON: Yes, I was. For the record, Barbara Burgeson -- with all three before, so I guess that covers it -- with Engineering and Environmental Services. I'm going to go back to my laptop and look at the Land Development Code for the EIS section just to be able to come back and tell you certainly. But I believe that this is the language exactly as it appears in the EIS of the LDC. So I'll check it in the code and get back to you shortly. CHAIRMAN STRAIN: Great. And if you could just provide a code citation and that -- MS. BURGESON: Yes, I will. CHAIRMAN STRAIN: -- will be fine. And if it is in the code, then my next question would be why do we need it as a recommendation. We've been going to lengths to try to avoid redundancy in everything we do. So I'm not sure why that's needed again if that's the case. MS. BURGESON: I'll let you know, thank you. CHAIRMAN STRAIN: Thank you. David, under item seven of your rezone findings, you indicate that the project is not projected to lower the level of service below the adopted level of service of the area. Well, it's already F. So does that mean you can't get FFF, or -- MR. MOSS: That was because of the DCA agreement in transportation division staff, stating that the project met all the criteria as far as they were concerned. That's why this was included. CHAIRMAN STRAIN: Okay. It would have been helpful to have that reference in here. Page 100 March 20, 2008 MR. MOSS: Yes. CHAIRMAN STRAIN: Number eight, the proposed change would not create drainage or surface water problems as the existing water management system is designed to prevent drainage problems on the site. Does that mean to the 4.9 that the EAC recommended? MR. MOSS: Yes. CHAIRMAN STRAIN: Okay. I'm sorry, let me take a minute to check my notes. Number six under the findings for the PUD. It's the same reference to traffic. Again, it references no decline in level of service. I understand now why you did that. Just a point that I wanted to make. David, the language in the GMP says the mixed use activity centers are intended to be mixed use in character. Further, they are generally intended to be developed at a human scale to be pedestrian orientated. How does this meet that criteria? MR. MOSS: I don't think that it doesn't. The comprehensive planning department staff, it was their opinion that it did comply with the provisions of the activity center subdistrict as well. CHAIRMAN STRAIN: Okay. Maybe David Weeks, since he's unfortunately still sitting here, can answer that question. Because I -- if all it means is you put a big box in and you meet all that criteria, then that's fine. I'm wondering what doesn't meet that criteria then. COMMISSIONER SCHIFFER: Mark, while we're waiting, in can share something. CHAIRMAN STRAIN: Sure. COMMISSIONER SCHIFFER: In the architectural standards, there are a lot of components in the menus that you get to choose from that essentially are pedestrian oriented. For example, there'll be covered walkways that will be required, the height of windows, the height of elements. Page 10 1 March 20, 2008 And the size of this parking lot, there'll be a lot of pedestrian activity walking from way out to get to the buildings, so -- CHAIRMAN STRAIN: Well, go ahead, Ms. Caron. COMMISSIONER CARON: No. So does that mean that there are sidewalks throughout here so that people can actually walk? COMMISSIONER SCHIFFER: I think they should get beat up. In some cases there's been -- they've put them, you know, under canopies and stuff like that, too. COMMISSIONER CARON: For example, there's a connection to Artesa down here to the residential, and it's an interconnect. Are there sidewalks along there so that if somebody chose to walk that distance they -- MR. MOSS: Yes, there are. And there's two interconnects actually to Artesa Pointe, pedestrian and vehicular. COMMISSIONER CARON: Right. CHAIRMAN STRAIN: We're big on interconnects. COMMISSIONER CARON: This week. CHAIRMAN STRAIN: David, did you have enough prep time, or do you need some quiet time, too? MR. WEEKS: I would prefer the latter. Again, for the record, David Weeks, Comprehensive Planning Department. In reading the language that you referenced, Mr. Chairman, from the mixed use activity center subdistrict and the Future Land Use Element, the main thing I would say is that it is not mandatory language. It certainly is something that we would prefer to see. For that matter we would prefer to see the activity centers developed as mixed use. That was the intent going back to 1989. But on the flip side, activity centers, most of them, a few exceptions, do allow up to 100 percent commercial to be developed. That's why that list of factors to be considered exists in the mixed use activity center subdistrict. That's to be used to help determine should a Page 102 March 20, 2008 given project be approved for 100 percent commercial or should it be mixed use, or specifically not commercial. But that's basically the answer, is it's not mandatory. It uses the word generally there, intended to be at a human scale, and that is a preference. Again, we have all sorts of different type of development in activity centers, some of which are big box development. And I would question exactly how do you make a big box development a human scale. I'm sure there's architectural embellishments, landscaping that can be done to help soften the impact, but as far as the actual scale development, I'm not sure that you can. CHAIRMAN STRAIN: So you're not sure that this is a human scale or mixed use in character project; is that a fair statement? MR. WEEKS: I'll definitely say it's not a mixed use project. It's 100 percent commercial what they're proposing. CHAIRMAN STRAIN: So then -- and it says the activity centers are in intended to be. MR. WEEKS: Yes. CHAIRMAN STRAIN: But that doesn't mean mandatory. MR. WEEKS: Well, it doesn't. And also it's speaking to the activity center. So you could view that in a very strict way to say every single project within an activity center, as opposed to the activity center as a whole. For example, if you have one residential project, 100 percent residential within the activity center and then other projects that are commercial, well, the activity center as a whole is mixed use. CHAIRMAN STRAIN: So this would be inconsistent with the intent of the GMP. MR. WEEKS: Not necessarily. CHAIRMAN STRAIN: I know, I'm just setting you up. That's fine. I was waiting for Richard to jump up and scream. MR. YOV ANOVICH: I'm in a quiet place. Page 103 March 20, 2008 CHAIRMAN STRAIN: Well, thank you, David, I appreciate your explanation. MR. WEEKS: Sure. CHAIRMAN STRAIN: That's all the questions I had of staff. Does anybody else have any questions of staff? MR. MOSS: I have a question of you. CHAIRMAN STRAIN: Yes, sir. MR. MOSS: You always call me David. Are you getting me confused with David Weeks? CHAIRMAN STRAIN: No. I'm sorry, you've got two names or so. MR. MOSS: You can call me J.D. if that's easier. CHAIRMAN STRAIN: Okay. Yeah, sometimes I call you -- I don't know what to call you, because you've got two names. Okay, J.D. works? MR. MOSS: J.D. works, yeah. And if you want to confuse me with David Weeks, that's fine, too. CHAIRMAN STRAIN: No, I appreciate it. I wish we -- I'll tell you what, David Weeks is a value for sure, so -- And the only last question I had still remains to be answered is the Land Development Code issue on the Harper -- Harvey Harper whatever. MR. KLATZKOW: I couldn't find any reference to it in the Land Development Code. CHAIRMAN STRAIN: I'm on the code now and I'm having trouble finding it, too. And Barbara's coming back up so maybe we'll get our answer. COMMISSIONER MURRAY: She found Harvey moved. MR. KLATZKOW: Harvey Wallbanger. MS. BURGESON: Again, for the record, Barbara Burgeson with Engineering and Environmental Services. That reference is in the EIS Section 10.02.02.A.4(f)(ii). And it Page 104 March 20, 2008 doesn't specifically state Harvey Harper methodology. This is a requirement of the EIS that an analysis demonstrating post-development pollutant loading -- this language includes Harvey Harper because it says in general accordance with, because that's the methodology that's used by South Florida and that is used by almost everyone that does that review. We could have put that stipulation in there to verbatim reflect what's in the EIS, but we simplified it so that the staff -- the applicant is more familiar with what we are requesting. And the reason that it's in the PUD is because it's normally required at the time of the EIS with the EIS, and it was not provided. So we are conditioning it to the next development order approval. CHAIRMAN STRAIN: Okay, Mr. Klatzkow, does staff have the right to waive these kind of elements at the -- if they're required at the time ofEIS to another time? MR. KLATZKOW: If this is required by our LDC it doesn't need to be in the PUD. CHAIRMAN STRAIN: It does need to be in the PUD? MR. KLATZKOW: Does not. CHAIRMAN STRAIN: Does not. That's what -- okay, that's-- MS. BURGESON: But it's required at the time of the PUD, not at the time of the next development order submittal. CHAIRMAN STRAIN: But you failed to get it at the time of the PUD; is that what you're telling us? MS. BURGESON: You may want to get a response from Wayne on that. Thank you. MR. ARNOLD: Wayne Arnold, for the record. We have been working with Boylan Environmental in preparation of the Environmental Impact Statement that was supportive of this rezoning application. We've also submitted for an environmental resource permit, which is a joint permitting application with the South Florida Water Page 105 March 20, 2008 Management District and the u.s. Army Corps of Engineers. There is a water quality analysis that's required as part of that submittal. Your county staff were copied on those application forms. I think that they have that information in-house. But it made sense that this was deferred to the next step, since we're in the process of obtaining that permit. CHAIRMAN STRAIN: Okay. Wayne, the LDC was written and approved as an ordinance by the Board of County Commissioners. There are certain elements that maybe policy can have some waiver or flexibility with. I'm concerned that we are doing something that is not permitted to go beyond based on LDC language. I'm simply going to have to ask Mr. Klatzkow if, based on LDC language can we defer this study to another date, if it's required to be with the EIS that was supposed to be here today in front of us for analysis by staff. MR. KLATZKOW: Unless there's any deferment language in the LDC, no. CHAIRMAN STRAIN: Well, how did we get here today? MR. YOV ANOVICH: I'm sorry, I didn't hear what Mr. Klatzkow said. CHAIRMAN STRAIN: He said that if there's no deferment language in the LDC, then would it be -- more or less my interpretation what he said, it would have to be required at the time it says so in the LDC. Which staff is indicating it was required with EIS for the PUD. And are you indicating now you didn't provide it? Because staff doesn't seem to think you did. MR. YOV ANOVICH: We're not required to provide a Harvey Harper analysis. Weare required to do a water quality analysis, and they've gotten that information through the ERP permitting process. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: Okay? CHAIRMAN STRAIN: Then that's kind of where my whole Page 106 March 20, 2008 point of questioning began. When I saw the reference to the Harvey Harper methodology, I didn't know by which ability they were requesting that of you, if it was inconsistent with the code. The result of that is, it doesn't have to be Harvey Harper, it has to be some form of methodology. You're testifying today that you supplied that methodology already to staff. And I just need to know if -- I need someone from staff to acknowledge that yes, you have. It may not be the Harvey Harper, but you did supply what was required by the EIS requirements for the PUD? MR. YOV ANOVICH: I'm not the guy doing the permitting. I'm going to have to wait for -- COMMISSIONER CARON: Time out. MR. YOV ANOVICH: Yeah. This one may be a time out. CHAIRMAN STRAIN: I don't know why something would get to us without a conclusion of this being resolved before it got here. It doesn't -- this is another one of those things that is mystifying. MR. KLATZKOW: I don't know how it got to the EAC. CHAIRMAN STRAIN: I don't either. I don't know -- well, I'm sorry, everybody. We're going to have to pause here for just a minute. COMMISSIONER CARON: We're good. CHAIRMAN STRAIN: I'll tell you what. So the court reporter hasn't got have to keep taking notes, let's just take five minutes and 12:10 we'll resume. (Recess) (Commissioner Adelstein is not present.) CHAIRMAN STRAIN: We're kind of getting there fellows. It's 12: 10. Okay, everybody. We need to know where to go on this. And I'm going to be looking to legal counsel for -- two more minutes? Okay, legal counsel needs two more minutes, so let's hold off till 2:13. (Recess) CHAIRMAN STRAIN: Okay, Ray, let's try it again. Okay, I Page 107 March 20, 2008 hope we're getting our way through this here. It's now 12:14. Mr. Adelstein's on a phone call. COMMISSIONER MURRAY: You've got two other gentlemen on the phone, too. CHAIRMAN STRAIN: We're going to try to bring this meeting back to order, unless the county attorney needs more time. COMMISSIONER MURRAY: Tell me we're at the precipice. COMMISSIONER ADELSTEIN: We're not at the precipice, we're over it. CHAIRMAN STRAIN: Mr. Klatzkow, I have to turn to you for your thoughts on this. MR. KLATZKOW: I'd like to hear staff put on the record exactly what happened. CHAIRMAN STRAIN: Okay. I don't know who from staff wants to take that fun task. COMMISSIONER SCHIFFER: J.D. MR. MOSS: What's the question? CHAIRMAN STRAIN: Staff needs to put on the record whatever happened, Mr. Klatzkow's request. COMMISSIONER MURRAY: Exactly -- CHAIRMAN STRAIN: Exactly what happened? Does somebody know what happened? MR. MOSS: In this discussion just now? CHAIRMAN STRAIN: I have no idea. MR. KLATZKOW: No, before the EAC. What happened? MR. MOSS: Yeah, apparently that was included as a stipulation in the EAC staff report. And the EAC did not act on it. Is that right, they did not include it with their motion? MR. ARNOLD: Can I try? MR. MOSS: Yeah, sure. MR. ARNOLD: Again, Wayne Arnold. Let me try to clarify this. The EAC heard the item. In the Page 108 March 20, 2008 Environmental Impact Statement there is a generalized discussion of how the pollutant loading will be dealt with on-site, how it's treated and how its quality will be affected. And that's dealt with further with all the detailed calculations through the Water Management District permitting. Okay. Your staff, in the EAC staff report, added this same condition that said that we needed to provide the detailed water quality calculations that the next development approval. And I believe that EAC acted on that stipulation and added an additional condition as what's being referenced here. CHAIRMAN STRAIN: Okay. But my --let's go -- the question that started this whole mess by me was simply where in the LDC does staff get the right to ask you to go into this methodology? Now, if it's a good thing, that's fine. But that's not the question. The question is, where in the LDC does that ability come in? You've already testified you provided the methodology that meets the criteria and provides the answers. At least I think that's what you just said. MR. ARNOLD: Well, I think what I said is that we have provided a discussion, which I think you could agree is also an analysis of water quality and pollutants. And then we agreed with staff that prior to the next development order approval we needed to provide the detailed water quality calculations. Which they've indicated is generally -- again, I don't have the language in front of me -- generally dealt with under the Harvey Harper analysis. Harvey Harper is an individual who designed a certain model, and that is generally the standards that the Water Management District uses. There are other methodologies, but I guess they're all generally acceptable under that Harvey Harper analysis. CHAIRMAN STRAIN: Okay. The legal point, or I guess the argu -- the point is, in order to be here today with this PUD, you had to submit an EIS. The EIS had to submit -- had to contain certain Page 109 March 20, 2008 criteria to get here today. That criteria wasn't waivable (sic) by staff. You had to do it or you don't get here until you do it. That's -- you don't come before this board. I'm trying to find out is (sic), did you submit it, was it acceptable, and are you here today because it is? Or is staff from the environmental perspective denying your EIS because of the methodology and telling you have to do a methodology that's above and beyond the LDC? MR. YOV ANOVICH: No, they're not telling us that. What we did is we provided an analysis of the water quality that we believe is consistent with the Land Development Code. It then went to the EAC. And staff said we would like you to in addition to the analysis you have in the EAC at a later point provide us with the detailed calculations to show that your analysis is correct. They suggested Harvey Harper, but it's not the only methodology out there. This is not unique. This is many -- well, let me rephrase that. We're not the only EIS that has provided this type of analysis and supplemented it later with the detailed calculations. I think that's probably a fair summary of this. I believe we meet the LDC requirements because we did provide an analysis. Obviously your staff must have believed we met it or we wouldn't be here. And the EAC spent a lot of time discussing these issues. And that's where the additional stipulation came from on the 4.9 feet. CHAIRMAN STRAIN: Were you required to demonstrate that post-development pollutant loading will be less than or equal to predevelopment loading at the time of the EIS? MR. YOV ANOVICH: Yes. And we did it in our EIS. CHAIRMAN STRAIN: Okay. I need staff to answer this question. Does staff accept that? And if not, then why did they let you come this far -- Page 110 March 20, 2008 MR. YOV ANOVICH: I'd like to know that answer. MS. BURGESON: I would rather have had the staff member that did this petition before you to answer this questions (sic) from having been at the EAC doing this presentation. But I can tell you generally that the EAC staff report, when it requires this language that the additional analysis be provided at the next development order, it is because it was not included to the degree that staff felt it was accomplished in the EIS. The EAC has from time to time approved a project and an EIS with the condition that analysis be provided at the next development order submittal. So even though it may not be a part of the EIS, they have approved the EIS in whole with that condition that this be provided at the next development order. CHAIRMAN STRAIN: Does the EIS that was supplied with this PUD meet the intent of the LDC, and does staff accept that EIS? And if you don't, I want to know why you have the -- where comes your latitude to demand more. Where in the LDC does it allow you to ask for more than what was provided to you, unless it's in error? MS. BURGESON: We are not asking for more than the EIS. We are asking for that commitment at a later date. COMMISSIONER MURRAY: Mark? CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Maybe I'm wrong, but I thought the central question revolved around the stipulation that a Harvey Harper methodology be used, and that obviously I would presume then that your group is comfortable with that, they're more familiar with it and they would then tend to rely upon it more. But are we saying that alternative analyses are not acceptable to you? MS. BURGESON: No, we are saying that in the Land Page III March 20, 2008 Development Code -- and I don't have a copy of it right here; we were just looking at it in the back -- the language is a little bit more detailed than the stipulation in the staff report. It goes on a little bit longer to talk about the requirement for the analysis that there is -- there is an evaluation to demonstrate that there is no pollutant loading post-development. It does not specifically state Harvey Harper, but the reason that this language is in here is because almost exclusively the applicant chooses to use that methodology. They can provide another methodology to evaluate this, but staffs review of what was submitted with this EIS was that they did not accomplish this complete evaluation in the EIS, but it would be acceptable for staff to do that review, approve the EIS -- and the EAC agreed with that-- conditioning this one piece to the next review process or the next level of review when it may be more appropriate from time to time, because the additional data is available to both the applicant and staff at that time. You can put the EIS on hold until the applicant gives this to you, but what you end up doing is just postponing the project for a couple of months until they're able to do that. COMMISSIONER MURRAY: What I am interpreting and perhaps in error, but interpreting from what you've just said is that they submitted something. You would have preferred the Harvey Harper. You're not happy. You will go through the analysis, but you think you need more because it's not something that you wanted stipulated, or -- that's what I'm getting out of this. You're stipulating -- MS. BURGESON: We are not saying that we prefer Harvey Harper. What the language in here is -- COMMISSIONER WOLFLEY: This does. MS. BURGESON: -- says in general accordance with. Which is anything that is -- that provides that water quality analysis. COMMISSIONER MURRAY: But here's the thing: Is it a Page 112 March 20, 2008 standard or a methodology? You're treating it as though it were standard, from what I'm hearing you say. And it simply, as I understand it from the statement, it's another methodology. MS. BURGESON: Yes, it is. COMMISSIONER MURRAY: So is it a standard or a methodology to you? MS. BURGESON: It is a methodology which is standardly used by South Florida Water Management District. COMMISSIONER MURRA Y: But not the only one. MS. BURGESON: Not the only one. COMMISSIONER MURRAY: And so there must be -- MS. BURGESON: I'm not sure I've seen anything else used. CHAIRMAN STRAIN: Barbara, does their EIS meet the requirements of the Land Development Code in order for them to be -- for their PUD to be processed with no other criteria? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: Lindy. MR. BELLOWS: That's additional conditions. No. MS. BURGESON: Right. No. CHAIRMAN STRAIN: No. Okay. So now we've got to the point where the PUD is insufficient because the EIS is not complete or does not meet the criteria that you believe is in the LDC. MS. BURGESON: Correct. MR. BELLOWS: For the record, Ray Bellows. I just wanted to -- I've had this question before over the years. And when the EAC gets their Environmental Impact Statement, they may make a recommendation that it's sufficient enough to move the project forward with this added condition. If they were to deny the EAS (sic) and put the project on hold until that information comes, it could drag the review out another six Page 113 March 20, 2008 months or a year or more. MS. BURGESON: And there have been projects where the EAC has requested a continuation. But in this particular project they did not feel that was necessary. They approved the EAS (sic) with this condition. CHAIRMAN STRAIN: Mr. Klatzkow, do you know -- and I'm not trying to put you on the spot; please don't answer if you're not sure. Do you know if we can proceed with a PUD hearing on the basis of an EIS that has been deemed not to be complete by county staff? MR. KLATZKOW: Well, from what I'm hearing, apparently we've been doing this for years -- CHAIRMAN STRAIN: Right. MR. KLATZKOW: -- as a matter of custom. Apparently sometimes the EIS's are insufficient and for whatever reason these insufficient EIS's are taken to the EAC. And sometimes the EAC says this is fine, sometimes apparently they say it's not fine. If this is what we've been doing year after year, I don't want to hold up this applicant at this point in time. But I do think that this issue needs to be clarified one way or the other. CHAIRMAN STRAIN: I do, too. And I appreciate your frankness in your response. And that will allow us at least to move ahead, assuming the rest of the planning commission concurs with Mr. Klatzkow's analysis. Okay, that was the last question I had on that issue. So I guess we've had the applicant's presentation, the staff report, and now we're into -- Ray, are there any public speakers? MR. BELLOWS: No registered speakers. CHAIRMAN STRAIN: Okay. Does the applicant have any final rebuttal comments or -- I'm not sure there was anything to rebut. MR. YOV ANOVICH: I don't think so. I think -- hopefully we've addressed all the comments raised by the planning commission regarding the project. Page 114 March 20, 2008 And again, if any others come up, we'll be happy to answer any further questions you have regarding the project. I do want to say that we did spend a lot of time on the site plan and looking at other alternatives regarding the building location. And in order to satisfy the users that would ultimately go to this site, that's the site plan that we had to arrive at. They want an orientation towards 951, like everybody else that has -- along there that has an orientation towards 951. If we were to do as you're suggesting, which would mean to put this up against the preserve, we would have an orientation towards 41, which would not satisfy the users that want to come to this site, since that's not where the traffic is actually coming from. COMMISSIONER MURRA Y: Mark? CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: One question of you, sir. We -- I posed it earlier and the response was it's possible. Not probable, but it's possible you might have junior boxes, I think you called them. Would it be appropriate, would you have any problem with -- if we stipulated that should there be the so-called junior boxes that a reconfiguration of the rectangle could be made to allow for a more appropriate design? MR. YOV ANOVICH: If -- from a junior box perspective, if it's 30,000 square feet or less, we would not go with this orientation. COMMISSIONER MURRAY: You'd accept that as a stipulation? MR. YOV ANOVICH: Yes. COMMISSIONER MURRAY: Okay. COMMISSIONER WOLFLEY: Mr. Chairman, I just -- CHAIRMAN STRAIN: Mr. Wolfley. Okay, go ahead. COMMISSIONER WOLFLEY: That's why I was looking for that depth of that preservation area. MR. YOV ANOVICH: It's 230 -- it's a little over 200 feet. Page 115 March 20, 2008 COMMISSIONER WOLFLEY: So that that would be an adequate buffer to the height of the building, that kind of thing to the residential behind the Wal-Mart and so on, so forth. MR. YOV ANOVICH: Yes. COMMISSIONER WOLFLEY: So it's two hundred and some feet. MR. YOV ANOVICH: Yeah. And we also -- the preserve setback comes into play too as far as the building which also comes into how do you layout buildings on the site. COMMISSIONER MURRAY: Right, sure. COMMISSIONER WOLFLEY: Exactly, okay. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: One thing. I like the mini box if they did that. But if they did do this plan, I think one requirement that might soften the parking is do you see in the center there there's like a stem of landscaping? You see the islands are broken up, but one is right there. That if we make a requirement that that be a covered walkway, it would block some view behind it. It would be really good for the people out in that parking lot to be able to get to shade rather quickly, too. MR. YOV ANOVICH: That's fine. COMMISSIONER SCHIFFER: And minimum walkway of eight feet, cover of 12 feet, okay? MR. YOV ANOVICH: Hold on. COMMISSIONER SCHIFFER: The intent there might be is that it would -- people wouldn't tend to look past that for the parking, it would break it up. MR. STRICKLAND: Eric Strickland with Kite Realty. Just to clarify, we do have trouble sometimes building long, thin continuous covered structures. But we can provide structured walkways, trellises and plantings that meet that intent but don't provide a solid shingled roof going through a facility. Page 116 March 20, 2008 So if that is the intent, to break it up with some hardscape vertical pedestrian elements, then that's acceptable. COMMISSIONER SCHIFFER: And what it would do visually is hide some of the parking behind it, and it would really be a service to the people using it. COMMISSIONER MURRAY: Yeah, that's nice. Good idea. CHAIRMAN STRAIN: Are there any other questions or comments? (No response.) CHAIRMAN STRAIN: Richard, I have one. Do you have any problem with holding off C.O.'s until the road sections at the intersection of 951 and 41 are completed? MR. YOV ANOVICH: Yeah, I think we have a big problem with that. Yes, we have a problem with that. I mean, we are one of the major funding sources for the DCA and the road. And to have to put up that kind of cash to build the road and not be able to recover some funds to do that, we couldn't live with that condition. CHAIRMAN STRAIN: Okay. There is no then time limit on the road to be commenced, and you are not agreeing to any restriction on when you can be completed. How fast do you think your project will be built and up and running? I mean, let's think ofI-75 and Immokalee Road. You gave us a date there, too, so I was just curious how -- MR. YOV ANOVICH: Actually, I don't think I gave you a date, I think that was your staff that gave you a date. CHAIRMAN STRAIN: Well, we have a different memory of that. MR. YOV ANOVICH: I think we -- well, your staff gave me the date. I think we should be fair in this situation. What we have proposed as a developer contribution agreement to solve not only this project's problems but existing already approved Page 11 7 March 20, 2008 residential and commercial development in the area. You have a problem at this intersection whether you approve this project or not. Weare proposing to fund a source to not only take care of our projects, but the deficit that already exists. And we proposed a phasing schedule that was acceptable to the Board of County Commissioners, with assurances that there would be enough money there to complete the road. And we are -- we're a big player in that, we're funding a lot of money, and what we're asking for is the ability to go forward. The bond has to be posted in August. I think it's August 13th. I don't think we'll have a building permit before August 13th. So the bond will be posted prior to our pulling the building permit. CHAIRMAN STRAIN: When do you think you'll have your building completed? MR. YOV ANOVICH: Eighteen to 20 months after -- from today or from pulling the building permit? Eighteen to 20 months from today is when we think the building we will be completed. CHAIRMAN STRAIN: Thank you. As far as your prior statements, I disagree with every one of them. I think -- I don't see any of them that I couldn't dispute as far as their being supported, but that's -- I'm not going to belabor that point so we will agree to disagree. And thank you. Any other questions of the applicant? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Just so I'm clear. The schedule that was just cited, are you in any way inhibited by FDOT? MR. YOV ANOVICH: Well, we're working with FDOT to design, and then we've got a permit and then we've got to construct the road. COMMISSIONER MURRAY: Let me restate it then. Are you in any way inhibited by FDOT relating to this project? Can you go forward, irrespective of FDOT? Page 118 March 20, 2008 In other words, the work that you're supposed to be doing, the road work you're supposed to be taking care of, can they stop you from going ahead? That's what I'm -- MR. YOV ANOVICH: We don't an -- no. I mean, we've got to get an FDOT driveway permit, but we don't think that's going to be a problem for us in going forward with our project. COMMISSIONER MURRAY: Okay, that was an issue. Because earlier it was stated that you're looking to have a signalized opening down there at the easterly side, which I thought that's going to require warrants and that's going to be an FDOT -- that's a time consumer, I thought. I've been following this fairly closely. Go ahead, sir. MR. JARVI: Yes, Reed Jarvi. Yes, we would have to do DOT permitting to get the building opened. I said that -- COMMISSIONER MURRAY: That's what I thought. MR. JARVI: -- the easternmost access on 41 is anticipated to be a signalized intersection sometime. Yes, we would have to meet warrants from DOT to get that approved or -- let me rephrase that -- it would have to be approved by DOT sometimes in big boxes like Targets and Wal-Marts and such that they'll allow the signal to be approved prior to warrants being made, because they know it will be made. But short of that, it would have to be permitted through DOT for all the accesses, actually. Because the ones on Collier Boulevard are state roads, too. COMMISSIONER MURRAY: Right. I guess in following it up and just finishing it out, the key here is that Mark's making a point that you really are going into the unknown on this, even though you feel confident, even though you're the hinge point -- or the hinge pin (sic). Nevertheless, I think Mark's right to trying to qualify that. I know Mr. Klatzkow's statement and I understand the statement Page 119 March 20, 2008 about the bond, that it could be called, but you don't want that to happen. So you must be really very, very positive about this. Go in peace. CHAIRMAN STRAIN: Okay, Mr. Wolfley, then Mr. Vigliotti. COMMISSIONER WOLFLEY: Yeah. Can I just ask one more question? It looks like where that signalized intersection is going to be, is that still a two-lane road? Because it looks like it doesn't split until the second and that third one. MR. JARVI: The easternmost access is at -- excuse me, U.S. 41 adjacent to the easternmost access is currently two-Ianed. COMMISSIONER WOLFLEY: What's it going to be? MR. JARVI: It will be four-Ianed. COMMISSIONER WOLFLEY: Right there. MR. JARVI: Well, the consortium is planning an expansion of the two-lane to four-Ianed well to the east of this project. Mile and a half down the road. There will be a six-lane to four-lane transition somewhere along the frontage of this. And the four-lane roadway is built in a six-lane profile -- or a six-lane design. COMMISSIONER WOLFLEY: Okay, good. Now, is this all going to happen in conjunction with -- in other words, is that four-lane going to be there prior to you opening up your Phase I? MR. JARVI: Right now the answer would probably be not, but it could be. The Phase 1, which -- of the consortium, which is this project, is just -- gets approved with posting of the bond to do the future construction. Now, if this project got delayed enough, that could happen. But the way it's envisioned, that would be not the case. COMMISSIONER WOLFLEY: Well, that would certainly be preferable. And of course there would be -- in the four-lane there would be turn lanes to take the -- okay. Page 120 March 20, 2008 MR. JARVI: Sir, in either case there'll be turn lanes. Even if they're turn lanes that are -- COMMISSIONER WOLFLEY: Just trying to clarify this. Because it's hard to tell from the diagrams and the paperwork and the MR. JARVI: Yes, sir. CHAIRMAN STRAIN: Okay, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Nick, can you please step up. This is a transportation issue and it's a huge issue. You were involved in this from the inception. From a transportation point of view, where do you sit? There's a cost benefit, there's a -- pros and cons. Where are you on this? MR. CASALANGUIDA: Thank you for asking this question, because I think we're forgetting that they're getting an impact fee credit of $27 million. And this road project has been estimated at $54 million. This project will take care of traffic impacts, not only from them but for adjacent developments that are going to keep coming on line. And that's what we stressed when we first presented it both to the planning commission and to the board. And when we did public outreach, we went to the community, and they understood what the implications were of having a road project funded privately that is nowhere on the horizon by county money. And in the future, based on growth management that we're seeing coming forward, nowhere possibly being funded in the next five or 10 years, the value of this project is big for the county. And we tried to structure this in a way that we took minimal to no risk. And the fact that we said we will take some traffic up front, knowing that, we will get a large road project in place was a big deal. Now, I can give you an update. We've had a preap. with FDOT. We've had a pre-application with the county. They have sub-consultant agreements in place. They're also doing preliminary Page 121 March 20, 2008 bid estimates for the project as well. So they are moving forward. And I can tell you that this -- in the environment going forward and nothing's been set in stone with Growth Management going forward, having this kind of agreement in place with a bond is significant for the county. COMMISSIONER VIGLIOTTI: When it comes to being on the hot seat, it's going to be you. If this thing doesn't come out the way it's planned, your phone's going to ring and you're the one that's going to have to listen to it. So you're still very confident that this is the way to go? MR. CASALANGUIDA: I am, because they do not get c.O.'s unless they post that bond. And that bond is going to sit in a safe in our office, you know. And I would love to call that bond and build a road project, if the rest of them default. Because the rest won't get to build and we'll build the road project. COMMISSIONER VIGLIOTTI: Thank you. I appreciate that. CHAIRMAN STRAIN: Nick, do you have the bond? MR. CASALANGUIDA: No, sir, I do not. CHAIRMAN STRAIN: Thank you. Anybody else have any questions before we go into closing the public hearing? (No response.) CHAIRMAN STRAIN: Ray, are there any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: We'll close the public hearing and open for discussion before the motion. Does anybody have any discussion? Mr. Kolflat? COMMISSIONER KOLFLAT: You tied the time limit down to the C.O. I think in your comments, didn't you, that the roadwork would not be allowed until the C.O.'s were issued? What was that-- Page 122 March 20, 2008 CHAIRMAN STRAIN: Well, I asked if the building would hold off on its C.O. until the roadwork for the intersection was complete, and the response was no. COMMISSIONER KOLFLAT: The response was negative, wasn't it? CHAIRMAN STRAIN: That's correct, sir. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: The project is important to the community in terms of what it will gain in overall commercial add that folks are looking forward to. I know that from my community. The problem will be -- the problem as well is that the intersection and the roadways need attention, and FDOT is not going to be bothering with it for a long time. There are a lot of plusses. The one negative that is there that Mark has brought out is significant enough to be concerned about. But with the amount of money at stake, this -- who knows, we may get a $54 million road project. And I hope that doesn't happen, because the economics of this would be disastrous for the community. So I'm going to -- if a motion is made, I'm going to vote in favor of it, even though I too share Mark's views. CHAIRMAN STRAIN: I have two problems with this project: First one is there's no reason this big box has to be at the main entryway to our community. It could be put to the south side, it could be centralized in the parcel. Just like Wal-Mart was forced to do, they could do. I don't see any excuse for an entry to this community on the north end of town being a Target and a Wal-Mart and the south end of town being a Target and a Wal-Mart that aren't artfully done. The one in the north end of town is set back from Immokalee Road. It's got plenty of space and landscaping. This wall going into town is impermissible, as far as I'm Page 123 March 20, 2008 concerned. The traffic congestion that will result from this with no end in sight, because there are no time frames in that consortium agreement, leave me completely -- as far as I'm concerned, it's a hollow agreement, and I can't see it for that reason. So I will be voting against this whatever -- against this project, depending on whatever motion's made. So are there any other comments? Mr. Wolfley? COMMISSIONER WOLFLEY: I just want to say, I am in favor of it, should we get some commitment that this road is going to be at least started or commenced before the permits are in. And -- I mean are granted. And the construction -- before the Phase 1 is complete, let me put it that way. But if this thing is just going to be, you know, a bond sitting in a vault somewhere, I've got problems with that too. And I share Mark's, you know, a big wall on the -- on 41 entering Naples. If we can somehow get beyond those, I am certainly in favor of the project because of the mitigation getting the road handled. That's all I wanted to say. CHAIRMAN STRAIN: Any other comments? Mr. Schiffer? COMMISSIONER SCHIFFER: Just one thing, Mark. Would you be more in favor of it if they didn't get that deviation for the parking? That would really require them to go to the drawing boards and either rotate this building 90 degrees and put some angles to it, or CHAIRMAN STRAIN: Well, the problem with that is with today's approval for a PUD with a master plan attached, we'd have to see it. And I don't think anybody's prepared to show that alternative today. So even if they don't get the deviation, basically they've got to Page 124 March 20, 2008 come back in because we're not going to have a master plan then that ties to the terms of the PUD and the LDC. COMMISSIONER SCHIFFER: Correct. But these master plans are always conceptual in nature. They -- some of our history, they've changed quite a bit between what we approve and what they are. Not giving them that deviation would certainly mean this does not work. CHAIRMAN STRAIN: That would take care of half of my concern. I certainly do have -- when I first saw this and I started reading the DCA and the other documents, I tried to find out how possibly the DCA could not have a time frame in it. I pulled up other laws that we have. One for a proportional share agreement, one for a developer contribution agreement. And all those referred to scheduled dates. Yet ours doesn't have it. And until I get a date, I have a real problem accepting that the road's just going to get fixed one day and the public's going to be happy. So I don't doubt Mr. Murray's comments that it be a nice addition to the area in regards for convenience for people, but I think the inconvenience of the road system might be as bad of a detriment as not having that store there right now. So anyway, that's where I'm at. Ifthere's no other comments, we'll be looking for a motion on this project. Who -- Mr. Vigliotti, did you have a motion? COMMISSIONER VIGLIOTTI: Yes, I'll make a motion to approve. And as Mr. Murray said, yeah, I realize that this is not the dream project we want here or the conditions that we really want to do it under. But we can't afford to fix the roads. We have developers looking to put up all the necessary money to put a permanent resolution to that whole intersection. And I just think that it's what we need to do at this time. Again, I'm going to vote for the project. And you have a couple of other stipulations? Page 125 March 20, 2008 CHAIRMAN STRAIN: You said you're going to vote, but you're making a motion, aren't you? COMMISSIONER VIGLIOTTI: Yes, a motion to approve. CHAIRMAN STRAIN: Okay, is there a second to the motion to approve? COMMISSIONER MURRAY: I'll make a second to that. CHAIRMAN STRAIN: Okay, a motion's been made and seconded; made by Commissioner Vigliotti, seconded by Commissioner Murray. Discussion. There are stipulations for those wishing to approve it you may want to consider as a minimum. Again, I'm not providing this by any inclination that I'm going to vote for the motion, I'm simply doing it as a convenience for you. COMMISSIONER VIGLIOTTI: Please. Thank you. CHAIRMAN STRAIN: The first one I made note of was to modify the setbacks along 41 and 951 to indicate there'd be -- for every two feet of height it will be one foot setback of vertical and not less than the 25 feet. Number two: Add the word gross in front of the square feet in Item I of Exhibit A. Number three: Deny development deviation A on Exhibit E. Number four: There's a condition in staff for number four, condition; clarify that by the time it goes to the BCC. Number five: There's to be a covered structure, I think the word was, along the long island shown about in the middle of the property. And Bob, I missed the one that you were bringing up about the 30,000 square feet or something for a second big box, or a baby big box? COMMISSIONER MURRAY: What I said, they called them junior boxes I think, or something like that. That they would agree that if this particular method, this format, the structuring, however we want to phrase it, if that failed they would entertain the junior boxes and Page 126 March 20, 2008 they would be moved away from the road. CHAIRMAN STRAIN: Okay, I don't know if we can put that as a stipulation. I think it's on the record. Because we've got a cite plan that's part of the PUD we're kind of stuck with. COMMISSIONER MURRAY: Okay, but it would help to be in there, at least on the record. Because if the BCC challenges the big box, that might be something they could work with. CHAIRMAN STRAIN: Yeah, it's been on record. So we have five stipulations. Ms. Caron, did you have some? COMMISSIONER CARON: I just wanted to make sure, as far as deviation number one is concerned, it applies just to Tract A? Did you say that -- CHAIRMAN STRAIN: Well, no, denied deviation A on Exhibit E, which is deviation number one in the staff report. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Now, for the motion maker, I believe that's the five stipulations I made note of. COMMISSIONER VIGLIOTTI: Yes. And these junior boxes was -- just on record, they would reconfigure the site if they went with the junior boxes. CHAIRMAN STRAIN: Well, which is -- this is a master plan to a PUD document, so they'd have to come back in, I think. COMMISSIONER VIGLIOTTI: Right. You're right. MR. KLATZKOW: And we're including staffs recommendations? CHAIRMAN STRAIN: And staff recommendations? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: Yes. Okay, so Mr. Vigliotti -- COMMISSIONER MURRAY: Wait, wait. Including the Harvey Harper methodology? CHAIRMAN STRAIN: Yes, there was a point made, stipulation Page 127 March 20, 2008 number four, that that will be clarified by the time it goes to the BCC. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Okay, does the motion maker accept the stipulation? COMMISSIONER VIGLIOTTI: Yes, I do. CHAIRMAN STRAIN: Does the second? COMMISSIONER MURRAY: (Nods head affirmatively.) CHAIRMAN STRAIN: Now, before we call for the vote, I'm going to put on record my concerns. I stated them about the location and I stated them about the traffic. That boils down to I don't believe it's consistent with the Growth Management Plan due to the CIE Objective 1.5 and Policy 1.2; the transportation element, 5.1, 5.2 and 4.4; the FLUE, 5.4; and the intent of the mixed use activity center; the PUD -- the LDC language for PUD's, Section 4.07.02(B)(1) and (2); the rezone findings, 1,6, 7, 10, 12, 14 and 17 to both the -- for traffic and market compatibility; and the findings for the PUD, Items 1,3,6, 7 and 8. Those are the reasons why I do not believe I can vote positively for this project. COMMISSIONER MURRAY: It's a good thing -- CHAIRMAN STRAIN: That's my statement. COMMISSIONER MURRAY: Good thing there weren't many. CHAIRMAN STRAIN: Anybody else have any final comments before we call for the vote? MR. YOV ANOVICH: Mr. Strain, I think there's an inconsistency in the motion. I thought I might want to point it out. CHAIRMAN STRAIN: Go right ahead. MR. YOV ANOVICH: Deviation number one was modified as Ms. Caron was beginning to say to say that the landscape deviation would only apply to basically the .8-acre piece where Tract A is. And staff is recommending approval of that, as modified. But the motion -- the stipulations you discussed in your motion Page 128 March 20, 2008 was to deny that deviation, yet at the same time follow staff recommendations. So there's -- I just wanted to point that inconsistency out. Because I think staff is now supporting that deviation. CHAIRMAN STRAIN: Okay. When I -- when J.D. got up here and I asked him to walk us through Exhibit E, I did it for specifically that purpose. And he said A was to be -- was recommended for denial. And I said, are there any text changes to B, C, or D? And the answer was no. Now you're telling me there may be a change, let's get it on the record. MR. MOSS: I'm sorry ifI misunderstood you. I did have a change with deviation A. If they're going to restrict it just to that area that's immediately north of Tract A, staff will support that. COMMISSIONER MURRAY: I thought he said -- CHAIRMAN STRAIN: Okay, just before we -- so staffwill support that change, that clarification to the stipulation. Deviation A would not be denied, it would be restricted to the -- say that again, to where? MR. MOSS: Just to the area immediately north of Tract A. CHAIRMAN STRAIN: Okay. Mr. Schiffer, you had a comment? COMMISSIONER SCHIFFER: Yeah, one thing, Mark, remember that condition where we had the walkway, that stem walkway? Could we add that to C to make it look like that's something to mitigate deviation C? CHAIRMAN STRAIN: Sure. I mean, as long as the motion-- COMMISSIONER SCHIFFER: For J.D., when he puts it back together, to put it there. CHAIRMAN STRAIN: Okay. So the covered structure along that center island will be added to deviation C. COMMISSIONER SCHIFFER: Correct. Page 129 March 20, 2008 CHAIRMAN STRAIN: And then deviation A will not be denied, it will just be restricted to the north of Tract A; is that correct? MR. MOSS: (Nods head affirmatively.) CHAIRMAN STRAIN: Okay, Mr. Kolflat? COMMISSIONER KOLFLAT: Well, I think with the level of service of failure on that road section down there and the lack of commitments to complete that roadwork, I don't see how we can support a project of this type that's going to create this monster on our highways. CHAIRMAN STRAIN: Thank you, sir. Okay, we've heard discussion. There is a motion. The motion is recommend approval with a series of stipulations that we read into the record. All those in favor of the motion, signify by saying aye and raising your hand. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Five in favor. All those opposed? COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER KOLFLAT: (Indicating.) CHAIRMAN STRAIN: Three opposed. So the motion carries 5-3. Right? Yeah, Mr. Adelstein's not here. Okay, thank you all. No, we've got to go on to the next one. We have one more PUD. It is now getting close to 1 :00. Do we want to continue or do we want to take a break? Cherie', how's your thoughts on this? Page 130 March 20, 2008 THE COURT REPORTER: A short break would be fine. CHAIRMAN STRAIN: A short break would be fine? Well, let's take a break until five after 1 :00. COMMISSIONER MURRAY: I have a -- wait a minute, Mark. CHAIRMAN STRAIN: Oh, just a second. COMMISSIONER MURRAY: Don't we also have to do the -- CHAIRMAN STRAIN: Well, we've still got to finish with them. Richard's not leaving yet. We've got another PUD to go through. COMMISSIONER MURRAY: And we also have -- MR. YOV ANOVICH: Oh, that's right, we have the Artesa -- the carve out of the .8 acres. CHAIRMAN STRAIN: Right. COMMISSIONER MURRAY: And then we have the ordinance. CHAIRMAN STRAIN: Right. COMMISSIONER VIGLIOTTI: Do you want to withdraw it? MR. YOV ANOVICH: They can't. CHAIRMAN STRAIN: Everybody, you need to quiet down in the audience, please. Let me tell you what we've got to finish, gentlemen. We've still got part of this to finish; that is the Artesa PUD that's being modified. And we have to go through the outdoor seating ordinance. Now, we can take a break for lunch or we can take a short break and move forward. We probably won't -- we've probably got another hour left. What's the choice of this commission? COMMISSIONER MIDNEY: Lunch. COMMISSIONER KOLFLAT: Let's keep working. CHAIRMAN STRAIN: Keep working, lunch. COMMISSIONER CARON: Keep working. COMMISSIONER VIGLIOTTI: Short break. CHAIRMAN STRAIN: Let's go with a short break, we'll come back here at 1: 15. Page 13 1 March 20, 2008 (Recess) Item #9D PETITION: PUDA-2007-AR-11734, ARTESA POINTE PUD CHAIRMAN STRAIN: Okay, welcome back from another short break for the continuing saga of the March 20th Collier County Planning Commission meeting. The -- hopefully the final item for this intersectional area of 951 and 41 to be discussed today is Petition PUDA-2007-AR-11734. We've already had our swearing in and our disclosures, we've already gone through some general comments. Now we'll focus on specifically the document and this PUD for any specifics that we may want to ask of the applicant. Richard, you're more than welcome to do a presentation, if you want. It's up to you. MR. YOV ANOVICH: I think we already did one. CHAIRMAN STRAIN: I agree. MR. YOV ANOVICH: The original presentation. I'mjust waiting for any questions you have. CHAIRMAN STRAIN: I don't want you ever to think that you didn't have every ability in the world to defend yourself. So with that, do we have any questions of the applicant here today? (No response.) CHAIRMAN STRAIN: Richard, you're taking off .88 acres of land, which is 9,514.05 square feet. On a ratio to the number of square footages applied for that PUD which was 325,000, that would mean you would be taking off about 8,372 square feet of buildable area. Giving you a net of316,628. You failed to show a correction in the square footage in the PUD Page 132 March 20, 2008 corresponding to the reduction in square footage of land. I'm sure you wanted to, though. MR. YOV ANOVICH: No, I'm sure I didn't. I'm sorry. There is no -- unlike the residential calculation of density, you don't calculate density of a commercial project based upon acreage. That project was approved at a certain acreage. This area is just additional parking, it's not needed to satisfy the parking requirements for the already approved PUD, so the square footage would remain the same within that PUD. We would be simply taking this area and moving it over to the Tamiami Crossings PUD that you -- the planning commission just voted to recommend approval on. So there's no reduction in the square footage on the Artesa Pointe PUD to correspond with the removal of the .8 acres. CHAIRMAN STRAIN: How much square footage does the current project have built out; do you know? MR. YOV ANOVICH: Approximately 230,000 square feet. CHAIRMAN STRAIN: So you need that 100,000 more? You're going to build another 100,000 square feet on that site? MR. YOV ANOVICH: I don't represent the owner of those development rights, I represent the owner of that .8-acre parcel. So we're not asking to remove or change any of the development rights on the remainder of the property. We're just asking to remove the .8 acres from that PUD and transfer it to the Tamiami Crossings PUD. CHAIRMAN STRAIN: Mr. Klatzkow, the point in hand today is not the ownership of that piece of property, it's the PUD called Artesa Pointe. Does the applicant have to have a representative here today? MR. KLATZKOW: I would hope that he represents the ownership interest of the PUD. MR. YOV ANOVICH: I don't believe I -- this is a strike-through and underlined version of the PUD. This is not touching any of the development standards of the PUD, this is an amendment to simply Page 133 March 20, 2008 remove .8 acres. MR. BELLOWS: For the record -- MR. KLATZKOW: Yeah, but you can't remove acreage from a PUD if you're not representing the owner of the property. MR. YOV ANOVICH: I am. I said that. I represent the owner of the .8 acres. They are requesting to be removed from the balance of the Artesa Pointe PUD. MR. KLATZKOW: You're telling me the owner of the .8 acres is different from the owner of the PUD? MR. YOV ANOVICH: Yes. MR. KLATZKOW: But you're asking for the PUD to be amended. MR. YOV ANOVICH: I'm asking, yes, to remove the .8 acres. MR. BELLOWS: For the record, Ray Bellows. The purpose of the strike through and underlined PUD amendment process is to allow PUD's that have grown over the years and have developed over the years and different ownerships have been acquired over the years to allow a property owner of a tract within that PUD to sponsor an amendment without having to get all the other property interests involved in the application. Our notification requirements will still notify the other interests ofthe PUD, but the property owner involved in the amendment is the applicant. CHAIRMAN STRAIN: Okay. But I've got a question for you, Ray. You had a PUD application -- amendment to an existing PUD submitted. Anybody can walk in off the street and submit an amendment to a PUD, but the owner of the PUD doesn't have to worry about it, he just gets amended. MR. BELLOWS: I don't believe that's the case. In this case the property owner who owns interest in this PUD is sponsoring the amendment in a strike through and underlined format. This is just -- this process was created to address the fact that you can't rezone Page 134 March 20, 2008 property of a PUD to be part of a new PUD without changing the boundaries and legal description of the PUD that's losing the property. So this is only a bookkeeping kind of method or process to reflect the proper acreage and master plan that has the lessed (sic) out property . CHAIRMAN STRAIN: Mr. Schiffer, did you have a question? COMMISSIONER SCHIFFER: I do. And it may be why we do need the owner. The interconnection from this property, so essentially today we cannot discuss that, because you can't guarantee access to that interconnection? MR. YOV ANOVICH: Sure. It's in both PUD's. COMMISSIONER SCHIFFER: That interconnection's going to be there? MR. YOV ANOVICH: Yeah. COMMISSIONER SCHIFFER: Why is it called -- MR. YOV ANOVICH: It's in the Tamiami Crossings PUD as well as the Artesa Pointe PUD. COMMISSIONER SCHIFFER: So it's described potential means that's available. MR. YOV ANOVICH: That's the way it's always been done. You put arrows to show that the interconnection will happen in that general location. COMMISSIONER SCHIFFER: Okay. Then I'm happy. MR. YOV ANOVICH: I mean, this is -- there could be multiple owners of a PUD document. I mean, this is -- you know, Pelican Bay just came through and the Waterside Shops was a different owner than other parcel owners within Pelican Bay. Are you saying you would have to get a sign-off on every owner within Pelican Bay to allow an amendment to the Pelican Bay PUD to occur? No, it's never been applied that way. CHAIRMAN STRAIN: Okay. COMMISSIONER MURRAY: I have a question. Page 135 March 20, 2008 CHAIRMAN STRAIN: I know. Mr. Kolflat does, and you, too. I started the question, I want to follow up. You're taking area away from a PUD that could be used for parking or whatever. You're obviously going to use it for parking for the PUD it's being moved to. You deny the ability to reduce the square footage, yet at the same time the fact that you're only two-thirds built out and you have about 100,000 square foot left, you have not proven to us then that this current PUD, in order to build out to 100,000 square feet may need that square footage you're taking out. And without the owner here acknowledging that he agrees to that, I'm wondering what basis that we have here. MR. YOV ANOVICH: I don't understand your question. And let me tell you -- first of all, the owner of the remainder of the PUD did not own the .8 acres. So they do not have the legal right to count on that .8 acres for anything, okay, because they didn't own it. They don't own it. It's owned by someone else. They don't have the right to count it towards their parking requirements, they don't have the right to count it towards their development. They don't own it. If you've got an issue with the remainder property on what the square footage is, that's a different issue. It's never been based upon a number of acres you get "X" square footage of development. So that .8 acres is parking. It will be serving the Tamiami Crossings -- it will be in the Tamiami Crossings PUD right now. And it was always intended to serve that. It was not -- they don't own it, they don't have the right to rely on it. CHAIRMAN STRAIN: They why would the legal description include it and it be part of the prior PUD that came through and got approved by this board? It's in the Artesa Pointe PUD, right? MR. YOV ANOVICH: I understand. But when the -- when Wal-Mart bought the property, okay, they did not buy the .8 acres. So they don't have the right to do anything on that .8 acres. Page 136 March 20, 2008 Consequently, by taking that .8 acres away from that PUD, we are in no way impacting or affecting Wal-Mart's rights under the PUD document, since they didn't own that .8 acres in the first place. CHAIRMAN STRAIN: Who owns the remaining 100,000 square feet that needs to be built out? MR. YOV ANOVICH: That belongs to Wal-Mart. MR. KLATZKOW: Don't we do covenants of unified control on these parcels? COMMISSIONER MURRAY: That's what I thought. MR. YOV ANOVICH: When they start out, absolutely. MR. KLATZKOW: And so you're saying that after they get the approval, they just carve it up and they can do what they want after that? MR. SCHMITT: Absolutely. This would be the same with this-- for the record, Joe Schmitt -- for this PUD as well. The Habitat community is part of the PUD. And if we took that to the extreme, every owner who buys a home and fee simple would have to also approve the amendment to the PUD. We don't go to that extent. This is property under the control of the applicant. I mean, we've done this for Waterside Shops, we've done this for other PUD's. MR. BELLOWS: Orange Blossom Ranch. MR. SCHMITT: Orange Blossom Ranch. It's merely -- the PUD is the zoning, the zoning area. It -- MR. KLATZKOW: I understand-- MR. SCHMITT: -- doesn't necessarily mean it's under unified control of an entire entity. MR. KLATZKOW: I understand what you're saying. MR. SCHMITT: The PUD then can be split up and parceled off to different developers, and in this case Artesa Pointe is a great example. Habitat owns half of it, Wal-Mart owns it. There's other parcels. Page 13 7 March 20, 2008 This parcel is under the control of this applicant, and all we're doing is dealing with this one element of the PUD. MR. KLATZKOW: But if you're saying that the entire parking area was owned by somebody else, they could just take it out. COMMISSIONER CARON: And Wal-Mart would have no parking. MR. SCHMITT: No, no, that's -- MR. KLATZKOW: So the Chairman-- MR. SCHMITT: Wal-Mart has to own that parking lot or a share of it in order to get the zoning for the parking lot, or for the business. CHAIRMAN STRAIN: Okay. Does someone have a deed that shows that Wal-Mart doesn't -- I guess that wouldn't matter what Wal-Mart owns, because the way Joe's describing it now -- and I understand what you're saying, Joe, and I'm not saying you're wrong, so it helped clarify it. But I think until Richard said he doesn't represent the Wal-Mart owner and I'm wondering who does, that was what kind of brought the question into play. Well, let me -- we have other questions. Let's see where this goes. Mr. Kolflat, then Mr. Murray. Go ahead, sir. MR. YOV ANOVICH: You know, if it helps any -- I'm sorry, I keep forgetting this mic. If it helps anything, Wal-Mart was notified about the petition. I'm sure that if they had a concern they would be here saying don't take this .8 acres out, okay? CHAIRMAN STRAIN: I thought they wanted to put at baby box on it. Mr. Kolflat, it's your turn, sir. COMMISSIONER KOLFLAT: Yeah, it says the subject property is 82 acres, and then it says this parcel we're talking about is .88. Is the .88 part of the 82? Page 138 March 20, 2008 MR. YOV ANOVICH: It was originally part of the original 82 acres that was rezoned. There -- they will take .8 acres out, which will result in a corresponding reduction in the total acreage in the Artesa Pointe PUD. And I don't have that number handy. COMMISSIONER KOLFLAT: The subject property is identified as 82 acres, not 82 less .88. And I thought the subject property would be the one that would show the ownership. MR. YOV ANOVICH: Section one of the ordinance that's going to make the change, it's in the strike through and underlined change, the -- it is going to change the number from 82 to 81 plus or minus. So there'll be that corresponding change through this ordinance amendment to the Artesa Pointe PUD. There's a new legal description that lesses (sic) it out. And then there's the attached master plan on the back that shows the removal of the .88 acres. CHAIRMAN STRAIN: Okay, Mr. Kolflat? COMMISSIONER KOLFLAT: Well, I'm still not clear on the ownership of whether the owner owns 82 acres or 82 less .88. MR. YOV ANOVICH: My client owns .88 acres. That's it, .88 acres. And we're requesting that that .88 acres be removed from the Artesa Pointe PUD. COMMISSIONER KOLFLAT: But the subject property that's identified as the subject in this PUD is 82 acres, not 82 less .88. Or identified as .88. MR. YOV ANOVICH: It hasn't been amended yet. When it gets amended, the acreage will change. There'll be the new legal description that's included the ordinance. CHAIRMAN STRAIN: Mr. Murray? If you want to try to confuse us even more, go right ahead. COMMISSIONER MURRAY: Oh, I'm good at that. I'm probably not going to add anything much more to this issue except my own concerns which I share. What I'm thinking of is that in a PUD -- not this PUD maybe, but Page 139 March 20, 2008 in a PUD it's theoretically possible, based on what I'm hearing, that various components can pull out of the PUD if they have a legal ownership right. But what does that do to the PUD in terms of obligations that are in the PUD or maintaining this, that and anything else? And I'm just thinking about the implications. It seems odd that we are addressing the PUD and excision from the PUD because you want to leave. And I guess if that's -- it doesn't strike me as being valid, but if it is, fine, it's something new to learn. CHAIRMAN STRAIN: Mr. Schmitt, then Mr. Vigliotti. MR. SCHMITT: That's a good question. And I believe what Mr. Murray was asking is ifthere's any commitments in the existing PUD, those are proportionally assigned to that segment of property. And they still -- if they withdraw from that, that owner is still responsible for a prop or -- let's say that Artesa was required for cost sharing of a traffic light or traffic signal. COMMISSIONER MURRAY: Or preserve. MR. SCHMITT: Or preserve or whatever else. Then part of that, they would be responsible legally for some proportionate funding for that when they take that property out of that PUD. So there is a legal entity there that we can ask for those kind of proportional PUD requirements. COMMISSIONER MURRAY: Okay. So in that context, just following that same reasoning, if it were preserved, you would then require mitigation of the current PUD owner to introduce new preserve. Would that be the answer to that? MR. SCHMITT: No, no, no. If this area is not designated preserve or it's not impacting the minimum required preserve, then there's no mitigation required. And this is not -- this was not preserve. In fact, I was just trying to look and see what this was designated previously in the existing master plan. MR. BELLOWS: It was a parking lot. Page 140 March 20, 2008 MR. SCHMITT: It was a parking lot. COMMISSIONER MURRAY: Well, okay, I'm going to finish really quickly. I recognize you were very specific to the issue at hand, and perhaps I should have remained there. But as a planning commissioner, I'm trying to think about precedent. And perhaps it's a little late for precedent, but what are we going to be allowing in the future for, say, a Lely Resort or a Fiddler's Creek if somebody wants to pull out, how that's going to impact. And that's where I was going with mine. Your response was very specific to the issue, I understand. CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. Klatzkow. COMMISSIONER VIGLIOTTI: I'm wondering if J.D. from staff can resolve this for us and explain this so we all -- COMMISSIONER MURRAY: J.D.? Oh, boy. COMMISSIONER VIGLIOTTI: I was hoping you were going to be able to resolve this and clarify it all for us. MR. MOSS: I don't know what else to add to what's already been said. I don't know how I could further clarify. CHAIRMAN STRAIN: I think it's more of a legal issue. And why don't we turn to -- MR. KLATZKOW: I think you're okay. As long as the only issue was excising this .88 acres and you don't look at anything else in the PUD, we don't need the owner of the PUD here. If you have any concerns about this impact on the rest of the PUD so that you want to delve into perhaps changing density or changing the square feet in the commercial, then you're going to need the other owner. But as long as you're comfortable that all we're talking about is excising this small piece, we're fine. CHAIRMAN STRAIN: Okay. Thank you, sir. Appreciate that clarification. Page 141 March 20, 2008 Mr. Vigliotti, that gets you where you needed to go? COMMISSIONER VIGLIOTTI: Thank you, J.D., you did a good job. CHAIRMAN STRAIN: Are there any other comments, questions of the applicant on this particular petition? I shouldn't say the applicant, I'm not even sure what he is now. Let's go to the staff presentation. COMMISSIONER VIGLIOTTI: I thought you just made your presentation. I thought that was it. CHAIRMAN STRAIN: Mr. Vigliotti. MR. MOSS: I just wanted to say that the project is consistent with the Growth Management Plan and the LDC, and staff is recommending approval without any stipulations. CHAIRMAN STRAIN: Thank you. Sometimes brevity is greatly appreciated. Are there any public speakers on this issue? MR. BELLOWS: No speakers. CHAIRMAN STRAIN: I was afraid you'd say Wal-Mart is here. Okay. Now, close the public hearing and entertain discussion before motion. Anybody have any discussion? (No response.) CHAIRMAN STRAIN: Good. Is there a motion? COMMISSIONER MURRAY: I'll make the motion. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I hope I have enough -- what are we talking about? Are we talking about the Artesa Pointe PUDA-2007-AR-11734, Artesa Pointe planned unit development and its excision of .88 acres. I move that we recommend approval to the Board of County Commissioners. CHAIRMAN STRAIN: Is there a second? Going once, is there a second? Page 142 March 20, 2008 Mr. Vigliotti? COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Okay, there's been a motion and a second. Is there any discussion? (No response.) CHAIRMAN STRAIN: Hearing no other discussion, all those in favor of the motion, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 8-0. Thank you. I'm glad we didn't take lunch to come back just for that. Item #10 OLD BUSINESS We have one more issue to discuss today, and that's the outdoor eat seating ordinance that was sent back to us by the BCC. That item is under old business and it is the last thing on our agenda for today, or close to the last thing. A night or two ago everybody should have been sent a clarification of the ordinance language that didn't respond to some of the comments in the meeting we had two weeks ago. So that diversion we could talk off of, but it doesn't change a lot from the version we Page 143 March 20, 2008 previously received. Are we all kind of there? And this one doesn't have dates on it, although last night it did have a date on it in the e-mail, or two nights ago. MS. F ABACHER: Excuse me Commissioners, does anybody need an extra copy? COMMISSIONER VIGLIOTTI: I have a question. Is this the same one is the e-mail? MS. F ABACHER: Yes, it's just -- yes. CHAIRMAN STRAIN: Yes. This was e-mailed to us this week sometime. And that's what we're going to be discussing. COMMISSIONER VIGLIOTTI: Is it the red lined copy? MS. F ABACHER: Yes. COMMISSIONER KOLFLA T: Do you have a green colored one? MS. F ABACHER: Blue. Did you want a blue one? COMMISSIONER KOLFLA T: I have red. Is red the latest? MS. F ABACHER: You've got yours. CHAIRMAN STRAIN: Okay, we normally work through these a page at a time. This is four pages, so hopefully we can get through it quickly. Why don't we start with the first page, which is mostly your whereas clauses. Does anybody -- and it starts with definitions on the bottom. Does anybody have any questions on the first page of this proposed ordinance? (No response.) CHAIRMAN STRAIN: And I'm sure the second page will ignite some questions, and that's where the definition was added for outdoor serving area. Page 2 of 4. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Could I make a general statement? Page 144 March 20, 2008 CHAIRMAN STRAIN: Sure. COMMISSIONER VIGLIOTTI: The more this thing comes back to us, the more I'm concerned. I'm going to use an analogy of killing a mosquito with a cannon. It gets worse and worse and worse. I'm really concerned about the small operator, the small mom and pop restaurants, they're going to be affected. Even the larger restaurants are going to be affected by the cutback hours. Restaurants are closing in this town as quick as they're opening, and I don't want to restrict them any more, so I feel that -- CHAIRMAN STRAIN: Mr. Vigliotti, if you look at these definitions for outdoor serving area, it's not restricting restaurants. It's only restricting that portion of them that is outdoors. So I don't think it's telling restaurants they've got to shut down at 11 :00 at night, it's simply saying if you have an outdoor eating area that meets this criteria, you've got to cease your outdoor activity at that time of night. COMMISSIONER VIGLIOTTI: Okay, question. Would the Waterside Shops restaurants fall into this because of the distance? Has anybody taken into consideration who's going to be affected by this? MS. F ABACHER: Certainly we have. I think we put an exemption, and that's one of the things that was added in your red there. If you look under -- COMMISSIONER WOLFLEY: There's no red. COMMISSIONER VIGLIOTTI: We don't have a red copy. MS. FABACHER: If you look under applicability, right there under section three, permit required. And it says under one, outdoor serving areas that are designed for and common to several businesses shall not be required to obtain this permit unless the total number of tables exceeds 12 or the total number of seats exceeds 50. So up to a certain size, yes, you would be except for a common open area for several businesses. You know, it's not rocket science that created these thresholds. If you want to loosen them or tighten them, Page 145 March 20, 2008 as part of your recommendation you're certainly welcome to. CHAIRMAN STRAIN: But then again, a place like the Waterside Shops, if they did have more than 12 or more than 50, meaning they weren't exempt, they simply go in and get a one-time temporary permit. And then as long as they never have a complaint, they never have a problem. So what would be wrong with that? COMMISSIONER VIGLIOTTI: Would their hours be cut? Outdoor seating hours. The outdoor seating hours would be cut. MS. ISTENES: It depends on their proximity, how they fall -- COMMISSIONER VIGLIOTTI: Well, let's take-- MS. ISTENES: -- next to the residents. But I don't think there's -- except on the west side, I don't believe there's residential -- CHAIRMAN STRAIN: You'd have to be within 1,000 feet of residential -- COMMISSIONER CARON: And they're not. CHAIRMAN STRAIN: -- and there is-- MS. ISTENES: I doubt it. CHAIRMAN STRAIN: -- they wouldn't be within 1,000 feet. Ms. Caron, go ahead. COMMISSIONER CARON: No, I was just going to say, I don't think they're -- in any direction they're not within 1,000 feet of residential. MS. F ABACHER: As we previously knew it. They're remodeling it, but -- COMMISSIONER CARON: No, even now. CHAIRMAN STRAIN: Well, we're on Page 2. Mr. Vigliotti, have you asked all your questions on Page 2? COMMISSIONER VIGLIOTTI: Yeah, for now. CHAIRMAN STRAIN: Anybody else? Mr. Schiffer? COMMISSIONER SCHIFFER: Yes. And this would be the first outdoor serving area definition. One question I had is that we really went after this because of Page 146 March 20, 2008 some bad situations. And one thing those bad situations always had in common was alcohol. So why aren't we -- let's think about maybe -- we don't have to do it right here, but limit this to places where alcohol is served. MS. F ABACHER: Commissioner, I think we've brought that up before. I've looked over the meetings from our previous hearings of this, quite substantial, and we've discussed it. And the fact that these are regulated as eating establishments -- for the most part Stevie's is an eating establishment occupational license-wise. So we had looked at some way last year of trying to cut out just sports bars, but they're -- it's not identified that way. COMMISSIONER SCHIFFER: I'm saying alcohol. And here's what happens if you do use that, you don't pull in coffee shops and other things. For example, as we go through this thing, I can cite situations where coffee shops are within 1,000 feet of a residential. And essentially that means that you couldn't have a biscotti and a coffee and sit outside because you would violate the hours. So anyway, that's a thought. We don't have to solve it here, but as we go through this, if you did limit it to only those serving alcohol, some of this is going to be easier. The other question is, it states where food and beverages are served. So this is not counting people who carry food out to the table themselves then. Or are we going to consider that served? I walk into a store, I buy food and beverages and I walk out and sit at a table. Does this qualify? Because no one's serving me out there. CHAIRMAN STRAIN: Maybe the word and needs to be "or". Are served or consumed in conjunction with a license. MS. ISTENES: I think that would clarify it. Because the intent is you're serving yourself essentially. COMMISSIONER SCHIFFER: Okay. Would something like a 7-Eleven be a licensed eating and drinking place? No. Page 147 March 20, 2008 MS. ISTENES: No. COMMISSIONER SCHIFFER: So this wouldn't affect them at all. Wouldn't -- maybe then it's not affecting the coffee shop, because the coffee shop, is that a licensed eating and drinking place? I guess it IS. MS. ISTENES: Yes. MS. FABACHER: Yes. COMMISSIONER SCHIFFER: Okay. So we're going to change that to "or"? And then the last part of the thing, it says not fully enclosed within the walls of the principal structure. What is that trying to do? For example, if somebody had a design where they opened up the walls of their building, essentially then they're outdoor spaces. I mean, there are places where they have enclosures that they open up on a nice day and thus become an outdoor. So is that to eliminate them from this? MS. ISTENES: No. I mean, once you're -- whether it's -- we're looking at permanent walls versus temporary or portable walls I think is what you're describing; is that correct? COMMISSIONER SCHIFFER: Well, I'm confused. MS. ISTENES: I am too, because I'm not sure what you're describing. COMMISSIONER SCHIFFER: What I'm trying to do is take that last part of the sentence and make it clear is that, okay, when you say which area is exposed to the outdoors, so therefore if I have a beach front thing with sliding doors that I open up some of the time, close it some of the time, this counts for me too, then. MS. ISTENES: Correct. COMMISSIONER SCHIFFER: Okay. So, you know, I have a -- well, anyway. And then I thought maybe the second part of that was trying to eliminate that. Okay, so if I have a -- I'm a restaurateur, I get a Page 148 March 20, 2008 restaurant license, I build a restaurant that has walls that I can open up on nice days, now all of a sudden I've got this new -- I have to get an outdoor seating permit? MS. ISTENES: Yes. COMMISSIONER SCHIFFER: Even though I'm an indoor restaurant by license. That's crazy. CHAIRMAN STRAIN: But see, once they open their doors up, then they're going to have the impact on the neighborhood that has been so problematic. So why wouldn't we want to insist that by 11 :00 they better be shutting their doors? COMMISSIONER SCHIFFER: Well, okay. I mean, I have more comments on this page. Should I go down it or -- CHAIRMAN STRAIN: Yeah, we're going to go past it if you don't so-- , COMMISSIONER SCHIFFER: Okay. When we define -- COMMISSIONER KOLFLAT: Identify which one you're talking about. COMMISSIONER SCHIFFER: Okay, now I'm going to go down to applicability, number one. The several businesses owning -- is that two or -- you know, two or more businesses? I mean, are we going to -- when does it become several? MS. ISTENES: More than one. COMMISSIONER SCHIFFER: Okay. So can we say -- MS. ISTENES: We could put that. COMMISSIONER SCHIFFER: -- just so that somebody with two is not being qualified as several. The other thing is the title of the thing, public hearing requirement. That isn't exactly what's being described beneath there, although some of that is public hearing. One thought I had is you know how you have a definition of conditional use above? You don't use it anywhere in the -- you know, Page 149 March 20, 2008 even though we're defining it we're not using it in this. So why don't we call that -- just title this conditional use permanent conditions, which describe what you have to do, including public hearings. In other words, public hearings is not a good -- MS. ISTENES: We were discussing that in the hall just before coming in here, and we're kind of in agreement with that. That title's not exactly describing what's going on in the paragraph. We didn't -- in fact, we didn't come up with a conclusion. That was kind where we left our conversation when we came in, so -- COMMISSIONER SCHIFFER: And my suggestion is to use the definition of conditional use, which we don't use anywhere in this anyway, even though we define it. MS. F ABACHER: But it's not a conditional use anymore. MS. ISTENES: It's not a conditional use, though, at that point. COMMISSIONER SCHIFFER: Well, why do we have the definition up top then? MS. ISTENES: I think it's a leftover. We were speaking with Doug Lewis, who by the way is a registered speaker, Mr. Chairman, and he pointed that out as well. We believe it's probably just a holdover from past iterations. And we can take that out. COMMISSIONER SCHIFFER: So we should be killing that. We'll take that out, okay. Then we do need a new name for that topic. If you want to spend time now, we can. MS. ISTENES: Why don't we keep going and then we'll-- Catherine and I will kind of look through it and then come back later in the discussion. COMMISSIONER SCHIFFER: In number two a question is, what is going to be the approximate cost of this permit? MS. F ABACHER: The fee schedule has set this schedule at $300 currently. COMMISSIONER SCHIFFER: So everybody with greater than Page 150 March 20, 2008 nine seats is going to pay 300 bucks. COMMISSIONER CARON: One time. MS. F ABACHER: One time. COMMISSIONER SCHIFFER: Yeah. And then what is the cost of the Notice of Violation going to be? MS. F ABACHER: You mean the violation history? COMMISSIONER SCHIFFER: Well, failure to obtain this permit will result in an issuance of a Notice of Violation. At that -- MS. FABACHER: Well, I think you should ask the county attorney. It's pretty generically administratively determined, these violations, the fines and so forth. By the state, actually. MR. KLATZKOW: It just depends what they did. COMMISSIONER SCHIFFER: So it's going to go to code -- well, what they did is they didn't get this permitted. MR. SCHMITT: This would have to be dealt with as a code enforcement action, go before the Code Enforcement Board. That board would adjudicate, make a recommendation for a fine. And basically then you go for -- if it carries on further you go through an imposition of fine hearing. So I can't -- COMMISSIONER SCHIFFER: But no less than? I mean, there's obviously costs for the code enforcement and everything. MR. SCHMITT: Yes, you'll pay a cost associated with that, plus the administrative cost of the hearings. It's normally -- I believe it's somewhere around $500. So it's going to be spendy (sic). COMMISSIONER SCHIFFER: In number three, it says, the permit shall be transferred. Is that mandatory or is it may be transferred better? In other words, if I buy the business, obviously I probably would want it, but -- MS. F ABACHER: Commissioner, that's another one that we had discussed with Mr. Lewis that maybe when he comes up we'll talk about how he wanted to address that. COMMISSIONER SCHIFFER: Okay. Page 151 March 20, 2008 I'm done on that page, Mark. CHAIRMAN STRAIN: Okay, anybody else? Mr. Murray? COMMISSIONER MURRAY: Yeah, let's go back to applicability and the outdoor serving area for comment to several businesses. I'm thinking of your McDonald's or your Burger King's. They're not necessarily -- their outdoor serving is not common to. And yet if we were to enact this, that means that they cannot serve breakfast, they can't -- COMMISSIONER SCHIFFER: Right. COMMISSIONER MURRAY: Hello? MS. ISTENES: I don't know what the question is. COMMISSIONER MURRAY: I hadn't finished my question, but I was taken by the look of shock on your face. What I'm driving at is on Page 3 of 4 where we talk about Sunday through Thursday, 11 :00 p.m. to 11 :00 a.m. and Friday through Saturday 12:00 a.m. to 11 :00 a.m. More particularly concerned with say their breakfast and people were to go outside and sit down and eat their breakfast out there. You're going to require them to get a permit because they're going to have that operation? MS. FABACHER: Well, if they have more than three tables and more than nine -- COMMISSIONER MURRAY: No, no. MS. F ABACHER: -- seats. COMMISSIONER MURRAY: Your applicability thing talks about common to several businesses. That's a single-standing business, standalone business. MS. FABACHER: Well, I think, Commissioner, that that, what you're reading, common to several -- to more than one business is an exemption. Weare excepting -- if it's in a courtyard that several businesses use, for example a food court, and they have 12 or less tables and less than 50 or less seats, then they won't need to get a Page 152 March 20, 2008 permit. However, if they exceed those numbers, then they will. Those thresholds. And they're outdoors. COMMISSIONER MURRAY: It would seem to be that, except that as an exemption it still speaks of several businesses. I'm sorry, it says common -- it says outdoor serving areas that are designed for and common to several businesses shall not be required. I'm asking the question about a standalone business like a Wendy's or a Burger King or whatever, that's a standalone business, are they going to be exempted under this? I think not. COMMISSIONER SCHIFFER: No. MS. F ABACHER: No, they're not. They -- the threshold -- COMMISSIONER MURRAY: Why shouldn't they be? Why should they have to get a permit to continue to serve their breakfast? They go into business before 11 :00 a.m. MS. ISTENES: I think ifI understand your concern, you're saying that the business hours of operation for outdoor seating are if you're within 1,000 feet of any lands with residential, you're subject to these business hours. COMMISSIONER MURRAY: Correct. MS. ISTENES: And for a fast-food restaurant that starts serving at 5:00 a.m., and if people want to sit outside wherever they have outdoor seating, then they're not going to be allowed to do so. Is that your concern? COMMISSIONER MURRAY: That is my concern. COMMISSIONER CARON: Without a permit. MS. FABACHER: Well, no, if you're within 1,000 feet of residential. However, as far as a Burger King or McDonald's go, I've never seen them with three tables or nine seats outdoors. That's why I'm -- that's why I was confused, Commissioner. COMMISSIONER VIGLIOTTI: But they -- CHAIRMAN STRAIN: Mr. Vigliotti, before you go forward, Page 153 March 20, 2008 Mr. Schiffer was next after Mr. Murray. So let's get finished up one at a time. COMMISSIONER MURRAY: And I just want to make it perfectly clear that unless you take out the word several businesses, common to several businesses, you're not including any standalones. And I use what was fairly common, which was Burger King and so forth. There are other businesses that are standalone. And they are -- in East Naples there are some of them fairly proximate, and I haven't taken a tape out to see, but I would imagine some of them are closer than 1,000 feet. So I think by -- you know, he used the expression a mosquito with a cannon, and that's been a concern of mine from day one, so -- CHAIRMAN STRAIN: Okay, Mr. Schiffer, then Mr. Vigliotti. COMMISSIONER SCHIFFER: And the concern actually, while Bob was talking -- let me wait till they're paying attention. MS. ISTENES: Sorry. Go ahead. COMMISSIONER SCHIFFER: When -- one of the things that came up when Bob was talking is that if two businesses, two bars went out there and were below that threshold, number one, they would never be involved in this process. COMMISSIONER MURRAY: Yeah. COMMISSIONER SCHIFFER: In other words, the AC/DC Lounge opened up against the Rolling Stone Tavern, and between them was 11 tables with 49 chairs. COMMISSIONER MURRAY: Or the Starbuck's in that case. CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER SCHIFFER: They would not have to get these permits, they could serve alcohol, they could go crazy and yell at the neighbors and not be involved in this process. True or false? MS. ISTENES: True, based on my understanding of your question. Page 154 March 20, 2008 CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: What page are we on? CHAIRMAN STRAIN: Page 2. COMMISSIONER VIGLIOTTI: I'm just getting more and more confused. As Brad said, if we put a few together and create that courtyard effect. Explain the whole courtyard effect to me. And one, who would be in violations, all of them if there was a noise ordinance problem? Or if one didn't file? Because suppose one didn't file, would they all be affected? MS. ISTENES: They would all need to obtain the permit. COMMISSIONER VIGLIOTTI: Okay, and if one didn't -- MS. ISTENES: How they would -- COMMISSIONER VIGLIOTTI: If one didn't, they're in violation, correct? If one of them didn't -- MS. ISTENES: One of the businesses is. The one who didn't-- COMMISSIONER VIGLIOTTI: Right. So if one of them doesn't file and the other ones do, that's in violation. So what do you do, shut the whole courtyard down or shut the other ones down? How does that work? MS. ISTENES: It's -- I think maybe the question is, ifthey are a violation of the noise ordinance, how does that impact all of the businesses, versus whether one or more failed to get a permit. Because that can be pretty easily handled. I mean, you know, you need to get a permit or you pay a fine and go on with code enforcement. I'm not sure I can answer the second question, which is if you have a common area shared by multiple businesses, how would that be handled through a code enforcement action. I'm not sure I can answer that. COMMISSIONER VIGLIOTTI: I'm done with Page 2. CHAIRMAN STRAIN: Anybody else on Page 2? (No response.) Page 155 March 20, 2008 CHAIRMAN STRAIN: Page 3. Questions on Page 3? COMMISSIONER SCHIFFER: Hold on a second, Mark. You know, one minor complaint I have is when these things are sent out in legal size, alls that means is you have to print it twice; once you print it, then you realize you missed half of it and then you've got to go back and rescale it. Is there a reason why we're using legal size? This is the only document we ever get. MR. KLATZKOW: Ordinances are done on legal size paper, so we tend to write them on legal size. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, I kind of do. Hold on -- well, let somebody else go, because I have to -- CHAIRMAN STRAIN: Mr. Kolflat, then Mr. Vigliotti. Mr. Kolflat? COMMISSIONER KOLFLAT: Okay. Down on the bottom of Page 3, item two, second sentence, but the suspension shall remain in effect until such time as the public hearing is conducted by the Board of County Commissioners. Who makes that determination as far as time-wise? Is it up to the county to establish that at the time of the hearing, or does the petitioner or the applicant have any say-so or request for when they might have the hearing? MS. FABACHER: I'm sorry, could you repeat that? We were having trouble finding it because we don't have the same page numbers as you do. COMMISSIONER VIGLIOTTI: Are you on legal? CHAIRMAN STRAIN: Section five, suspension of permit, number two, second line, end of the line. MS. ISTENES: We found it, we just need to know what the question is, please. COMMISSIONER KOLFLA T: It says that the suspension shall Page 156 March 20, 2008 remain in effect until there is a public hearing. My question is, who determines when the public hearing shall be, the county or the petitioner or applicant? MS. ISTENES: A little bit of both, honestly. Because they'll be an application, you know, requirement. And at least-- COMMISSIONER KOLFLAT: I mean, like for a variance, the one who determines that is the petitioner who is applying for the variance, he sets the time when he files for it. But now on a permit like this and a suspension, does he have the same right that he can say look, I want a hearing by such and such a time? MS. ISTENES: The petitioner does not set public hearing times and variances. The county does. And it's dependent upon whether or not the petitioner submits -- a lot of it is dependent upon whether the petitioner submits the correct information or not. So that would be the only thing in my mind that would delay a hearing. But these are pretty benign applications. I mean, it's just a matter of getting basic information, like the code enforcement background and the location of the property and then scheduling the hearing before the board. So you're looking at about a four-week time frame, because we have about three weeks in advance of a meeting before all the documentation has to be in to the board. COMMISSIONER KOLFLA T: So it will be that short a time, though, four weeks, so nobody could be left hanging for a long time. MS. ISTENES: As long as the petitioner is judicious about getting the information that we're required to provide to the board so that they can make their decision. CHAIRMAN STRAIN: Mr. Schmitt, did you have something you -- MR. SCHMITT: For the record, legally the agenda before the Board of County Commissioners is controlled by the county manager. Page 157 March 20, 2008 Staff would forward the recommendation to the county manager, county manager controls the agenda. He would schedule it at the meeting that he thought best would fit that specific item. So it's legally up to the county manager. But what Susan says is correct, we get the information, we would provide the backup in an executive summary, forward it as an agenda item, and then the manager makes the final decision as to which meeting it will be heard. So it would be probably four to six weeks. Just due to the timing required for the applicant or in this case the party that received the violation to provide any backup material so we could provide that to the board in a timely manner for them to prepare for any type of hearing. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: We're on Page 3, correct? CHAIRMAN STRAIN: Yes. COMMISSIONER VIGLIOTTI: Under applications, will this be a simple application for these people to fill out or will it be confusing? Because in B we're asking them for a code violation history. Isn't that something the county would have on file? MS. F ABACHER: Yes, Commissioner. Catherine Fabacher, for the record. That's something that code enforcement could provide. COMMISSIONER VIGLIOTTI: But the way it's written, we're putting the onus on the owner. MS. FABACHER: Well, they need to go to the window and get it. COMMISSIONER VIGLIOTTI: Before they make their appli -- can't they make their application and let code enforcement find out what's going on, instead of putting the onus back on them? It seems like everything's getting back -- thrown on the restaurateur. MS. FABACHER: Well, you'll recall that we had designed this to kind of work with the occupational. At least the first time they came in, I know that was when it was going to be an annual. Page 158 March 20, 2008 But generally when you go to get the occupational license you have to have this certification, this zoning certification. I don't think it's that onerous of a burden. COMMISSIONER VIGLIOTTI: So they're going to have to supply this history and they're going to have to supply C also, a nonresidential zoning land use certificate? MS. ISTENES: They have to get that anyway for their business license. So really the only additional requirement here looks like the history from code enforcement, which code -- again, they can walk in during regular business hours and get that printed off of code enforcement department's -- COMMISSIONER VIGLIOTTI: Okay. And E, a site plan. I've asked every time this came before us for somebody to put in there that we would accept a handwritten site plan. If we really take this to the extent, hey, they're going to -- suppose the owner of the shopping center doesn't have a site plan. So now they need to hire an architect to go out and get a site plan? MS. ISTENES: No, that's not the intent at all. COMMISSIONER VIGLIOTTI: But why is handwritten not in there? I've asked for it a few times and it just never seems to show up. CHAIRMAN STRAIN: Well, we don't want it to be handwritten if they want to do it in a formal manner. So by all -- it's not saying you can't submit handwritten. Why would you want to indicate it has to be handwritten? COMMISSIONER VIGLIOTTI: Okay, it doesn't have to be. But they will accept it. We've talked about that before, that they'll accept a handwritten site plan, and it just never keeps coming up. MS. ISTENES: We -- actually, probably the better place to put that to clarify that, because -- would be on the application. And we're happy to do that. Because this is not requiring a formal site development plan, otherwise it would say so. But I mean, there's only so much Page 159 March 20, 2008 terminology you can use for site plans. And I'm happy to explain it on the application that this does not have to be a formal, you know, site plan submitted by a registered engineer or anything like that. COMMISSIONER VIGLIOTTI: So that will go on the application. MS. ISTENES: It just has to be accurate, really, as far as the location of the property and the seating area and the distances. COMMISSIONER VIGLIOTTI: They'll go out and -- MS. ISTENES: And we will-- and they will be required to attest to that as part of their application, too. So as long as they attest to it and we can understand it. If there's any question of accuracy, for example, if there's a code violation or whatever, then the question of accuracy would be determined at the time of an investigation. But other than that, we're just going -- we're going to accept what they give us, as long as they give us an affidavit as part of the application that attests to its accuracy based on -- COMMISSIONER VIGLIOTTI: Okay. So after they measure up half the neighborhood, they fill out the forms, come down and go to two or three places, submit the application with a fee, they're good to go. MS. ISTENES: Correct. One time. As long as they don't have a violation. CHAIRMAN STRAIN: Mr. Wolfley, then Mr. Schiffer. COMMISSIONER WOLFLEY: Okay, this goes for every restaurant that currently has or will have outdoor seating, they're going to have to come in for this permit, correct? MS. ISTENES: Correct. MS. FABACHER: Over three tables or nine seats. If you just have four seats in front of the ice cream parlor, you will not. COMMISSIONER WOLFLEY: Okay. Well, let's just say the McDonald's on the corner of 951 and Immokalee Road. Let's say they've got five tables sitting outside there. And I'm going to assume Page 160 March 20, 2008 there's probably at least 100 restaurants in Collier County that may fit under this scenario? MS. F ABACHER: I don't know if it would be that large, to be honest. I think we ran a list of all the businesses that would be affected from the occupational license. And it seemed to me it was around 300, between 300 and 400, all told. Now, what percent of those have outdoor serving areas that exceed three tables and nine seats would be kind of an exhaustive research to do. COMMISSIONER WOLFLEY: Well, it would, but quite a few -- mainly because of the smoking rules, quite a few have kind of adopted that. It's going to be quite a boon for the county. So I guess my question is, they come in -- assuming this gets passed they all have to immediately come in. And who approves this? Let me just get that -- MS. ISTENES: It's -- well, the criteria is outlined here. And generally speaking, as long as you don't have any violations, noise ordinance violations in the last 12 months, it's just handled administratively over the counter -- COMMISSIONER WOLFLEY: Right over the counter. MS. ISTENES: -- so you just come in during business hours. COMMISSIONER WOLFLEY: Okay. And then ifthere has been a -- if there's been a problem within the last 12 months, then where does it go? I must have missed something. MS. F ABACHER: Then we need to put it on the board agenda for a hearing. COMMISSIONER WOLFLEY: Then it goes for the -- okay, thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes. This will be Item 2-E. And remember, 2 is reasons that you would not be able to get your license renewed. E is one that states that you don't have the parking available to Page 161 March 20, 2008 accommodate this extra seating. How is that going to be found out? The site plan referenced above in the -- isn't requesting that to be notified. So how would you know whether or not it has the parking? MS. ISTENES: Well, they're going to have an approved site plan. COMMISSIONER SCHIFFER: Then maybe up above you should note that. I mean, so that site plan that you're referring to in E above has to include the square footages of all people that share the parking with you, which may be standalone, may be one, may be a shopping center, maybe a bunch. And showing how the additional seating will affect that calculation. MS. ISTENES: All ofthat's already on an approved site plan. So it's not like we're asking people to reinvent the wheel. They do have to have a copy of their approved site plan. And assuming -- if they're a shopping center action, for example, generally it's not going to be a problem. I could -- COMMISSIONER SCHIFFER: Well, you don't know. MS. ISTENES: I don't know, no. COMMISSIONER SCHIFFER: That may be -- I mean, I know small shopping centers -- MS. ISTENES: I mean, we have older shopping centers that it could be problematic. I said generally. But yeah, that will be on the site plan. Or they somehow -- again, if -- let's say it's an older shopping center that for some reason doesn't have a site plan. It's the same thing we do with the zoning certificates when they come in to get an occupational license. If they provide us the information in writing, yeah, they are going to have to know how much parking is there and how -- what the businesses are that are there now and this overall square footage of their business and the square footage of the shopping center, if they don't have an approved site plan. But that's something we do already. Page 162 March 20, 2008 COMMISSIONER SCHIFFER: Okay. So you're expecting that on the site plan referenced in E above. MS. ISTENES: It will be, because that's a requirement of the site development plan. COMMISSIONER SCHIFFER: So in Bob's scenario when they come through you're going to say, well, wait a minute, let's look at all the parking. When they get a license -- let's just say I just bought a coffee shop and let's say it was out of business and I'm bringing it back to business. When I went to get an occupation license, would I be providing that data anyway? MS. ISTENES: Yes, but let me back up a second. Because we're only talking about, yeah, two things. A public hearing in front of the board is when we're going to need this information, and we're also talking about areas that haven't already been preapproved for seating, so -- and you're not talking about a huge impact on parking for outdoor seating unless it's a huge outdoor seating area that happens to be located in a small shopping center. COMMISSIONER SCHIFFER: I mean, isn't it one car per two seats? MS. ISTENES: I'd have to double check, but -- COMMISSIONER SCHIFFER: I think that's it. So anyway, and then down in G, I kind of think that would be better worded if it states the layout does not comply with the -- and I'd say means of egress provisions of the governing codes. You don't just have the life safety codes. So I think the intent of that when we discussed it in the past was one reason to deny it is that it's clogging up the means of egress from the restaurant. So just add means of egress between -- right before provisions, and then cross out life safety and call (sic) governing building codes. I think that would cover that. And I'm done, thank you. CHAIRMAN STRAIN: Okay, Mr. Murray? Page 163 March 20, 2008 COMMISSIONER MURRAY: Yeah, on Page 3 of 6, going back to that Item E. You a number of times now have used the word approved site plan. If you're going to require an approved site plan, I think you ought to change the verbiage on there, change your words to require an approved site plan. Because that obviously takes away the handwritten one or the line drawing that somebody might come in with. MS. F ABACHER: Commissioner, I think we're talking about two different things. We're talking about the administrative permit where you can have a hand-drawn one. And what Susan was referring to was when someone created an outdoor serving area addition to their facility, they had to come in and amend their site plan. And that's what we're talking about. That's where that information would be located, because they'd have had to go through the SDP process. So that's two different -- COMMISSIONER MURRAY: I was under application. So you're saying it doesn't apply to application. MS. F ABACHER: No, sir. COMMISSIONER MURRAY: Okay. That's good, as long as that doesn't. And I will say again, Catherine, that you a number of times have now said that small businesses with less than three seats, and it's not the way it reads. MS. F ABACHER: Commissioner, I think it's up in the definition of outdoor serving areas on Page 2 there on the small sheets. It says outdoor serving area. An area having more than three tables or nine seats where food and beverages are served or consumed in conjunction with a licensed eating or drinking place. And then goes on to say it's, you know, more or less unenclosed. So by definition an outdoor serving area has to be more than three tables and nine seats. COMMISSIONER MURRAY: That would be fine if you didn't Page 164 March 20, 2008 have under applicability outdoor serving areas that are designed for and common to several businesses shall not be required. You negate the outdoor serving area statement by that. They contradict each other. MS. FABACHER: Well, we can look at that, Commissioner. We can look at that. COMMISSIONER MURRAY: Please do. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Page 4, number two. CHAIRMAN STRAIN: No, we're on Page 3 yet. Let's stick to number -- Page 3. COMMISSIONER SCHIFFER: Mark, I -- CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Question. Catherine, when you worded that, so what you're saying is that the handwritten thing so to speak does not require the parking calculation? MS. F ABACHER: Correct. Correct. COMMISSIONER SCHIFFER: It's only if they're in trouble and they're before the board and maybe that -- MS. FABACHER: Well, not in trouble but that they have to have a public hearing to determine -- that's one of the criteria the board may use. The board might not think that's a problem. It's at the board's description. COMMISSIONER SCHIFFER: Well, don't they have to be in violation to be -- to have the public hearing requirement? MS. F ABACHER: They have to be in violation -- they have to have had a conviction, a finding of violation of the noise ordinance. That's got nothing to do with parking to go before the board. This is just some of the things that the board may look at -- COMMISSIONER SCHIFFER: I understand that. And that's trouble. So they're in trouble. So they go before the board and at that time only do they have to prove that their parking is okay. Or if that Page 165 March 20, 2008 was one of the complaints about them that not only are they noisy but there's cars all over the neighborhood, then that's only an issue. So in the initial application they do not have to calculate parking requirements. MS. F ABACHER: Correct. COMMISSIONER SCHIFFER: Okay, that's good. Thank you. CHAIRMAN STRAIN: Page 3, Item C, a valid nonresidential zomng. My only concern and question there is Section 2.02.02 of the code defines what nonresidential zoning and what residential zoning is. And RT districts are residential zoning. I want to make sure that you wouldn't be omitting the hotels, the ability to fit into this by the -- where referenced to nonresidential zoning only. MS. ISTENES: This, Commissioner, is actually referring to a form that we issue again when somebody comes in to obtain a business license. It's called a zoning certificate. And we essentially validate that the business they want to conduct is allowed in the zoning district they're proposed to go into. And we call it a zoning certificate. And in fact -- MS. F ABACHER: Doug. MS. ISTENES: Doug. Sorry, Doug. I haven't had lunch and my blood sugar is really falling here. CHAIRMAN STRAIN: Believe me, none of us have either, so , we re -- MS. ISTENES: I understand. CHAIRMAN STRAIN: I think I've learned another lesson. We'll take lunch, even if we have a change of only five minutes when we come back. Go ahead. MS. ISTENES: Doug had questioned that, too, as to whether or Page 166 March 20, 2008 not that was defined or described in the code. And I told him gee, I hadn't been asked that question in a while, and think it is, but I need to confirm it. That's all that's referring to. And I think we need to clarify that. And we agreed to that. CHAIRMAN STRAIN: And it is 2.02.02(B) is where you find that described. I have a copy of it, if you need it. MS. ISTENES: Thanks. CHAIRMAN STRAIN: Anything else on Page 3 before we go to Page 4? (No response.) CHAIRMAN STRAIN: Okay, Page 4. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Number two on top, last sentence, the board shall be entitled to deny a permit. When we've spoke about this in the very beginning, we said that they'll be giving the permit, no questions asked. And then if there's a violation then we go through the process. And we made it very clear that there would be no questions asked. Now we're coming through with arbitrary things. Like, for instance, you can deny it because the use will cause danger, the use will not be a type intensity consistent with surrounding lands. These are ambiguous. And it was supposed to be just walk in, get a permit for the first time and go from there. And now we're putting all these stipulations on it for a denial. CHAIRMAN STRAIN: Bob, I hate to bother you, but where are you at? COMMISSIONER MURRAY: Number two at the top says -- COMMISSIONER VIGLIOTTI: Page 4, number two. CHAIRMAN STRAIN: Page 4. COMMISSIONER MURRAY: Yeah. COMMISSIONER VIGLIOTTI: Number two. Page 167 March 20, 2008 CHAIRMAN STRAIN: Right. COMMISSIONER VIGLIOTTI: There's a paragraph. Then it goes A to G. COMMISSIONER MURRAY: Last sentence on that first paragraph. COMMISSIONER KOLFLAT: Wait a minute, wait a minute. CHAIRMAN STRAIN: No, I've got -- my number two says every owner/operator shall at times post all outdoor serving areas in a location which is visible to all patrons. COMMISSIONER MURRAY: I'm looking at what he's looking at. COMMISSIONER VIGLIOTTI: This is the handout they just gave me. COMMISSIONER SCHIFFER: It's eight and a half by 11 versus the legal problem. CHAIRMAN STRAIN: Well, no, mine's an eight and a half by 11. COMMISSIONER VIGLIOTTI: Here, let me show you. CHAIRMAN STRAIN: That's okay, I don't doubt you. Can you tell me the section number you're under. COMMISSIONER MURRAY: It would be under application -- CHAIRMAN STRAIN: No, Bob, can you tell me -- Bob Vigliotti, can you tell me the section number you're under. COMMISSIONER VIGLIOTTI: Under application -- all right, section four, application. You have one, then you have section two. CHAIRMAN STRAIN: Okay. COMMISSIONER VIGLIOTTI: Starts with in the interpretation and application. CHAIRMAN STRAIN: Yeah. Now I know where you're at. That's on my Page 3. So we're still back on Page 3. COMMISSIONER VIGLIOTTI: Okay. From my understanding, and we always talk about it, that the first time they would just come Page 168 March 20, 2008 get their permit and go, there would be no questions asked. Now I'm seeing all these reasons for denial. Why? MS. FABACHER: Well, let me say this: We had spoken with Mr. Lewis. It's confusing. I think we agreed on this section to put in the beginning, before it says in the interpretation and application we're going to have public hearing criteria, period. This is only the criteria that the board may use in a public hearing. It's not just for the walk-in administratively approved permit over the front counter at all. COMMISSIONER VIGLIOTTI: I'm confused. That's not the way it reads. The way it reads, it could be denied. MS. ISTENES: It can be denied by the Board of County Commissioners. But this is the criteria they would use to evaluate the petition, if it was required to go to a public hearing. COMMISSIONER VIGLIOTTI: I'm reading, in determining whether to issue a permit -- MS. ISTENES: The board shall be entitled-- COMMISSIONER VIGLIOTTI: -- shall be entitled to deny, revoke. MS. ISTENES: Correct. COMMISSIONER VIGLIOTTI: What do you mean issue a permit? They have a permit already. If they have a permit, why are we talking about issuing a denial? MS. ISTENES: There's two scenarios. First we need to add a heading over that section that says public hearing criteria, so it will be clear that this is the criteria that the board is going to use to evaluate, not administrative staff. That aside, there's two scenarios under which somebody is going to have to go to the board to get a permit. One is they've already been issued a permit administratively by staff and there is a finding of a violation of the noise ordinance. The second is they've had a finding of the violation of the noise Page 169 March 20, 2008 ordinance within 12 months of their application prior to them getting a permit, so the board's going to have to issue their permit in that case. So it can't be issued -- COMMISSIONER VIGLIOTTI: When you rewrite this, it will be -- it will make sense? CHAIRMAN STRAIN: Well, I was hoping that we weren't going to be rewritten -- we've been done (sic) what, how many times and how many months have we done this for now? MS. F ABACHER: July 25th -- CHAIRMAN STRAIN: We've already been over all this many, many, many times. MS. F ABACHER: -- of 2007. And yeah, we're kind of going around in circles now, Commissioners. CHAIRMAN STRAIN: I'm trying to get past that. I know. We've gone over this many times before. So let's not bring it back again. Let's be done with it today. COMMISSIONER VIGLIOTTI: The only reason I say that is because we keep going around and round, but it comes through different than what we expected. COMMISSIONER MURRAY: I'm not going to vote for something that's going to be garbage. CHAIRMAN STRAIN: Well, I just want to-- MS. F ABACHER: Commissioners, excuse me. This was approved by you -- CHAIRMAN STRAIN: I know. We've already been through-- MS. FABACHER: -- already on the -- what date did you approve it? January 11th, 2008, you've already approved this very language except for the new stuff that I was asked to add about the -- CHAIRMAN STRAIN: Right. Went on to the BCC and the BCC made some changes and sent it back to make sure -- MS. FABACHER: Actually, the BCC didn't even make a Page 170 March 20, 2008 change, if I might explain. The BCC said -- and you'll recall, there was a part and then the county manager had the right to do things if, you know, it was too close to residential. And then the second part was the permit. And what the board said at their February I think it was 5th meeting, to cut out the part about the permit and please put that in the Code of Laws, because we want to be able to tweak it more easily if it doesn't work out. So we're following board direction. We took the verbatim stuff that you had approved and already recommended approval on and put that into the form that you see now, which is in ordinance for the Code of Laws, and then it went back to the board and they said well, now we need the planning commission to look at it again. Although you've already recommended approval of it. And it just kind of -- it won't die. CHAIRMAN STRAIN: Do you know water boarding? MS. F ABACHER: Is this an example? CHAIRMAN STRAIN: I'm not sure, they ought to use this in Congress. Mr. Vigliotti, let's finish with your questions on whatever page you're reading from, and we'll go on to Mr. Wolfley. Are you done, Bob? COMMISSIONER VIGLIOTTI: No. Ifthey change that heading and call it public hearing criteria, I'm okay with Page 4. CHAIRMAN STRAIN: Okay. Mr. Wolfley? COMMISSIONER WOLFLEY: I guess about 20 minutes ago I asked, and you said there were probably 300 restaurants and I made the example there may be 100 that fit under this. And all they have to do, if they have not had any violations within the last 12 months, is just an over-the-counter situation. MS. F ABACHER: Yes, sir. COMMISSIONER WOLFLEY: What I just heard you say to Mr. Vigliotti was that it's not quite that easy, that they may go in front of the board and it may be denied or revoked due to these seven Page 171 March 20, 2008 Issues. MS. FABACHER: Well, no, sir. COMMISSIONER WOLFLEY: I thought it was over the counter. MS. F ABACHER: No, no, it's always been it's over the counter if you have not had a conviction or a finding of violation of the noise ordinance. If you have a violation -- and Mr. Lewis will speak, but he asked us to change it to a conviction, which doesn't matter to us, unless it matters to Jeff. But then all bets are off. It can't be administrative if you have a history of violating the noise ordinance within the last 12 months. Then you automatically have to go on to the board. COMMISSIONER WOLFLEY: Where does it say that? I'm missing it. MS. FABACHER: Well, right under permit requirements. We're on Page 2 on the short form. COMMISSIONER WOLFLEY: Of six? If you could go-- MS. F ABACHER: Two of six, yes, sir. Two of six. And it says COMMISSIONER WOLFLEY: But actually, I'm on -- MS. FABACHER: -- I-A. It says I-A, okay, it says public hearing requirements. One starts the temporary use that say that you can do it administratively. However, it's qualified by subsection A which says permits for application for outdoor serving areas by owners or managers who have a finding of violation of the noise ordinance within the past 12 months shall be heard by the Board of County Commissioners during any regularly scheduled meeting. So there's two paths. COMMISSIONER WOLFLEY: Which one does section four, application for an outdoor serving area permit, lie? MS. F ABACHER: The application is for both types. I think the Page 172 March 20, 2008 confusion is when you get to Page 4 of 6. And as Susan said, we will put a heading that says public hearing criteria. These A through G, these items here are just the basis upon which the board can determine whether to deny or issue the permit, to revoke it or to reinstate it. It's criteria they may use. It's not a requirement of any sort. This does not apply to someone who has not violated or been convicted of violating the noise ordinance within the past year. This won't apply to them. COMMISSIONER WOLFLEY: How are these restaurant owners going to know whether they -- where they lie? MS. F ABACHER: By going to the window at code enforcement and getting the violation history. I think if they've had a conviction before the special magistrate or the Code Enforcement Board, they'll be aware of that. COMMISSIONER WOLFLEY: Right. CHAIRMAN STRAIN: I don't disagree with you. Are there -- Mr. Schiffer, did you have -- COMMISSIONER SCHIFFER: I'm on Page 4. CHAIRMAN STRAIN: That's fine, I think any page is as good as any right now. COMMISSIONER SCHIFFER: Should we go for it? Okay. CHAIRMAN STRAIN: Sure, go right ahead. COMMISSIONER SCHIFFER: And this is the situation with the hours. And again, if it said alcohol this would make sense to me. The fact that it doesn't doesn't. That means -- let's take the coffee shop on Pine Ridge. Easily within 1,000 feet of the people on the other side of Pine Ridge behind the wall. That coffee -- I can't walk out with my biscotti onto the outdoor seating without violating this. So that makes no sense. Another issue, take Mercado. It has residential three floors up. They can't serve breakfast in those restaurants outdoors. And the Page 173 March 20, 2008 people come to Florida for the outdoors. Theoretically what you're telling me today, which is even more frightening, is that if they open the doors to their restaurant, essentially causing their environment to become, quote, outdoor, now they have to get this permit to include even those seats, if they have that potential. So anyway, the way this is written, I have no idea what this is trying to cure. I know what -- you know, we laugh at this like it took us so long, but we went out to get something and this brush is so broad that it's sweeping in so many other things, things that people aren't even predicting yet, that it's totally missing the point. It would hit the point, I think if we put the word alcohol in the first definition of outdoor serving. MS. F ABACHER: I'd like to just respond to say that the reason the board wants to put it in the Code of Laws is if there are problems and unintended consequences, they can just deal with it by a resolution and we will not have to go through a long process to try and amend this permit. The second thing I would like to say, Commissioner, is that the -- this is not supposed to be -- we're not actively going to go out and be investigating on who has a permit, who doesn't. This is designed really for the bad actor. Because all the investigations would be complaint driven. And with the process that code uses right now, they give a business a chance, they give them warnings or they'll give them several notices of violation and give them a chance to try and make it right. That's code's process. Then they would end up in the Code Enforcement Board or the special magistrate, at which point that hearing body could revoke that permit, which would throw it to the BCC. This -- the scenarios that you're seeing, I may be mistaken, I don't think it's a concern. We're not here to try and really regulate the heck out of everybody. This is only a safety net for a bad actor. Page 174 March 20, 2008 CHAIRMAN STRAIN: Bring your speaker up. MS. FABACHER: Sorry. This is-- COMMISSIONER SCHIFFER: Well, what you're saying is that -- let's go to Mercado. You're telling that guy he can't serve breakfast. So what you're saying is that that's not going to matter unless we decide it matters? COMMISSIONER VIGLIOTTI: That's right. MS. ISTENES: Why don't you change the hours of operation? The 11 :00 p.m. -- I think the key times were the evening hours, based on our understanding. Maybe we could qualify that by saying if a business is open to serve breakfast at these -- you know, that the morning hours would be different. COMMISSIONER SCHIFFER: Well, then the bar guy is going to beat the system by serving breakfast with, you know, drinking in the morning. The intent of this really makes sense with alcohol. We were driven to do this thing for a specific reason. It is a mosquito, like Mr. Vigliotti said. And we could focus and hit the mosquito. The biggest problem we have is that the joke ofthis whole thing is that the hammer you have to hit the people, is if there's a noise violation, and we can't even get a noise violation on those guys now. But anyway, I definitely think we should just term this to be alcohol outdoor seating. Quit messing around. I mean, the little coffee guys, why they're being drawn into this is not fair. It's not their fight. CHAIRMAN STRAIN: Go ahead, Ms. Fabacher. MS. F ABACHER: Commissioner, I reread the minutes from all of our previous hearings. And I think that -- and I think it was Commissioner Caron was talking about the problem was 1 :00 or 2:00 in the morning. And I think Susan has a valid suggestion. If you're concerned about small breakfast areas and so forth with over three tables and nine seats, we can amend those hours. Page 175 March 20, 2008 COMMISSIONER SCHIFFER: But let me just -- MS. F ABACHER: It's 1 :00 or 2:00 in the morning we're worried about. COMMISSIONER SCHIFFER: What she was concerned about is places that serve alcohol with a rowdy crowd outside. Why are we beating up the little coffee shop guy wanting to have a biscotti out on the patio? Why are we wrapping this around the Mercado mixed use development who wants to serve breakfast outdoors? And it's not just outdoor, Donna. What they said is that if you have a design of a where you can open the doors, essentially being an outdoor environment for part of the year, those are considered outdoor seating and have to now be included in this permit. So we've -- in other words, what we've done is we've captured so many things that we just don't need to have, just to solve a small problem. MS. ISTENES: I think the flip side of that is, this is a one-time permit. You get it one time. If you're in business for 20 years and you don't have any violations, you've got a one-time permit and you have no issues with it. So that was the tradeoff. COMMISSIONER SCHIFFER: Well, the other problem is here's what it's going to really do also. There are a lot of situations, a little bit of seating anarchy's going on out there where people have taken chairs, thrown a couple tables out. Granted, we have a threshold, we're getting a little bit more sensitive to that, where, you know, they're going to get swooped up in this thing and not be able to have that seating. And unless somebody's complained about it, there's no reason to catch people that don't have the parking for it. And there are going to be a lot of people that really don't have the parking for what they're doing. CHAIRMAN STRAIN: You know, we've been at this for an hour and a half. We didn't take lunch thinking this was going to be Page 176 March 20, 2008 short. My mistake. My big mistake. Everybody seems to have their heels dug in as to where they're going to go with this, regardless. We could probably talk another four or five hours and not change anybody's mind. Why don't we just vote on it and get it over with and get past it. Because I don't think we're going to get anything done listening -- COMMISSIONER VIGLIOTTI: I agree. CHAIRMAN STRAIN: Everybody's going to have their own dug in idea on this thing and there's no sense in beating it to death. Ms. Fabacher -- I'm certainly going to ask for public speakers, but I wanted to -- I just kind of wanted to get you all focused to the end of this, not to the middle of it. COMMISSIONER MURRAY: I want one question -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- I need to have asked. Just tell me if I'm wrong. I had a recollection, and Brad stimulated the thought. Wasn't mixed use in here and wasn't it previously if it was in there, wasn't it excluded, any activities in mixed use? MS. FABACHER: Yes, sir, it was excluded because we don't have any clear-cut definition-- COMMISSIONER MURRAY: Right. MS. FABACHER: -- of what's mixed use. COMMISSIONER MURRAY: I don't see mixed use in here anymore. MS. F ABACHER: That's why we took it out. COMMISSIONER MURRAY: So it's not the same thing that they sent back to us by any stretch. Okay. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Just for one clarification, if the hours were 11 :00 p.m. to 7:00 a.m. instead of 11 :00 a.m., that might help a lot at first blush. People don't -- I mean, breakfast usually is around Page 177 March 20, 2008 7:00. I doubt if you'll ever find anybody drinking at 7:00 a.m. in the morning. And if they are, they get a violation. Anyway, does anybody have any problem with that? Mr. Kolflat? COMMISSIONER KOLFLAT: I just have a question. You talked about let's make a decision going one way or the other. I thought that we were assigned the responsibility to come up with something, not make a determination whether there will or will not be something as far as an ordinance. CHAIRMAN STRAIN: Well, I have no problem. I will be glad to sit here till 6:00, 7:00, 8:00, 9:00, 10:00, 11 :00 or reconvene. I have no problem with that. But I'm telling you something, we need to have lunch. Because there's a lot of people here who weren't counting on going for eight hours without lunch. So you all make your minds up. My mind's already made up. You just tell us if you all want to continue this discussion, honestly, I'm not trying to stop that at all. I just don't want us to continually not have some nutrition in the meantime. COMMISSIONER VIGLIOTTI: So -- CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I agree with you, we should just call for a vote as soon as possible. COMMISSIONER SCHIFFER: I mean, I think this is an important document. I mean, we do -- but we're really on the front lines of helping the little guy, so -- CHAIRMAN STRAIN: Okay, well, then let's-- COMMISSIONER SCHIFFER: But there was a couple of questions, Mark, that I had that were answered that, you know, Doug Lewis has that secret. So, you know, since staff thinks Doug is the carrier of secrets, could we have Doug come up here and we can ask him these questions? Page 178 March 20, 2008 CHAIRMAN STRAIN: Well, that's what I was going to suggest. Why don't we have Mr. Lewis come up. And if we can't resolve this in a few minutes after he comes up to a vote, let's just go to lunch, come back and then finish the day out with this for as long as it takes. Go ahead, Mr. Lewis. MR. LEWIS: Commissioners, nothing like great timing, right, right before lunch? I know you're hungry, I know I am. These are important issues. I'm Doug Lewis, attorney with Roetzel and Andress. I am a registered lobbyist and I'm here today on behalf of Pulte Homes and First Federal Development. And I know you're hungry, I'm hungry and we're all hungry, but bad legislation -- bad ordinances can sometimes happen on a fly and it can create real issues. Initially I think we need to make a distinction. Section 6 has absolutely nothing to do with the permit process, this one-time temporary permit for outdoor seating. Section 6 is really a restriction on existing businesses and future businesses in terms of their hours of operation. This is independent of anything else, whether or not a permit's issued, not issued. Just so that you're clear. I think there may have been some confusion between the commissioners. This stands alone and these hours of operation, if you're caught up in that, you're within 1,000 feet, you're subject to this. Now it's a blanket prohibition. It fails to take into account any site conditions, it fails to look at whether or not there are any prior complaints that have been filed, whether or not there's been an actual notice or conviction for a violation. It doesn't look at any financial impacts or any impacts. When we mentioned that there were 300 businesses, I think staff has indicated, that operate outdoor dining, we don't know how many of those are going to be impacted. They don't look at any of the structural components, what kind Page 179 March 20, 2008 of natural buffering exists in these areas. Have there been complaints before? Are there problems? Is it working? What are the adjacent zoned areas? We know that zoning residential certainly is a factor, but how is that laid out? Is there buffering in that residential between the sites. It doesn't take into account other public interests that are competing. As you mentioned we have not only the interest of protecting other residents from noise, which I think is a valid issue, that's why we have a noise ordinance, but we certainly have -- in Southwest Florida we have a public -- a very real public interest of preserving our outdoor living, preserving our restaurant community. Weare a tourist based economy. So I think it's very dangerous and I think to come here and to start tinkering with hours of operation, to tinker with existing rights, we may open up issues with respect to vested rights claims, with respect to Bert Harris. These are businesses that are operating, that are functioning that have existing businesses. That's the first thing I think. I would recommend strongly that section six be removed, unless staffhas some real data to demonstrate there's a real public interest here that's being served by this narrowly tailored or this provision. It's a very blanket provision. Section five, dealing with the suspension of the permit, I think this is important, because I think we've all been led to believe that a permit can be done administratively if there has been no conviction under the noise ordinance in the last 12-month period. So if I come in, I'm the existing business and I've been a good apple; in other words, defining that as I've never had a conviction under the noise ordinance in a 12-month window. And I think you've been led to believe and I think we've been told that the ordinance is designed to make sure that it's not discretionary there's no criteria that that will be an issue, that permit will be issued. So existing businesses have the right to be there. What I find troubling is if we're saying that someone who's Page 180 March 20, 2008 existing who's a good character, and we're defining that again as not being convicted under the noise ordinance, can get a permit, then shouldn't that be the very same criteria that would result in a revocation of the permit? If we're saying on the one hand that a permit is going to be issued, in this case it should be the same for revocation of the permit. I think that change needs to occur with respect to section five. I also have other changes in terms of text that I think could help us make sure in terms of how this is worded. Again, there's some really significant wording issues that can result in litigation problems downstream. Bad ordinances are not a good thing. I know we're hungry and I know it's late in the day, but there are some real text issues I think that need to be done to make sure that we're saying that the good apples, those folks who have gone through the process, who are good residents, help the economy, as long as there hasn't been a problem, e.g., a conviction under the noise ordinance within a 12-month period, they will get that thing. They will get the permit. Now, the final thing is in terms of the cost -- I mean, this is -- THE COURT REPORTER: Please slow down. MR. LEWIS: Slow down. Sure. Happy to do that. CHAIRMAN STRAIN: Let me explain something to you, too. It's not so much we're hungry, we've been going for six hours without a break of substantial time to recollect our thoughts. Our whole premise was that we were going to get through the rest of this well before now. I don't care, like I said, if we take all night. But if we are, we just need to recognize that and take a break. MR. LEWIS: And I'm happy to do either one. CHAIRMAN STRAIN: No, you continue. Go ahead, Mr. Vigliotti. COMMISSIONER VIGLIOTTI: From -- before I had said that we should take a vote. Now I'm hearing that you have quite a few changes, some language changes and some other things I don't think Page 181 March 20, 2008 we're going to resolve in five minutes. Do you want to rethink? CHAIRMAN STRAIN: Again, I'm at the point where I think we need to take a break, go get some food, come back and try to finish this up. If we're going to take longer than 15 or 20 minutes. COMMISSIONER MURRAY: Actually, I'm ready to make a motion that we -- CHAIRMAN STRAIN: Well, we're not asking for a motion yet. COMMISSIONER MURRAY: Well, I think I'm in order to make one. COMMISSIONER SCHIFFER: But Mark, let me ask a question. Our job is -- COMMISSIONER MURRAY: I don't think the Chair can declare what we're going to do. I have the right to make a motion. CHAIRMAN STRAIN: Mr. Klatzkow, if we're not ready for a motion, do we have to entertain one at this point? MR. KLATZKOW: Well, he could make a motion, it could be seconded and then you discuss whether or not this is the proper time. COMMISSIONER SCHIFFER: The public hearing is still gomg. CHAIRMAN STRAIN: Well, so we just cut Mr. -- MR. KLATZKOW: No, no, no, after he's finished. After Mr. Lewis is finished. CHAIRMAN STRAIN: Well, before he's finished, what do the rest of you want to do? COMMISSIONER SCHIFFER: I mean, is the restaurant even open down there? CHAIRMAN STRAIN: I don't know. COMMISSIONER MURRAY: My motion was the basis that we're not going to find -- COMMISSIONER WOLFLEY: Could I ask a question? If the motion is made to deny this ordinance, they're just going to rewrite it and it's going to come back, right? Page 182 March 20, 2008 COMMISSIONER MURRAY: Right. COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: Let's not even go there. Right now we've got -- Doug is going to tell us the rest of his issues. We need to get through that. I'm suggesting we may not want to be here for another hour or two without a break. I'm asking you all, do you want a break? If you don't say no (sic) I can sit here till midnight. That's all I'm just asking. COMMISSIONER CARON: I think a break would be a good idea. CHAIRMAN STRAIN: I agree. How long would you like to break for? COMMISSIONER SCHIFFER: Halfhour. COMMISSIONER VIGLIOTTI: Halfhour. COMMISSIONER MURRAY: Now, see, you usurped -- CHAIRMAN STRAIN: Let's take a break for-- COMMISSIONER MURRAY: Mr. Chairman, you usurped my opportunity to make a motion by doing that. And that's what I was attempting to avoid, where you're steering us away. I want the opportunity to make a motion to deny that this is not the right document for us, and they can rewrite it if they want. If the motion fails, that's fine. CHAIRMAN STRAIN: Mr. Klatzkow, Mr. Murray seems insistent upon dragging this out further. COMMISSIONER MURRAY: He is insistent. CHAIRMAN STRAIN: Do we have to entertain a motion now before Doug comes back? MR. KLATZKOW: I would be more comfortable ifMr. Lewis finished his presentation. COMMISSIONER SCHIFFER: Yeah, me too. CHAIRMAN STRAIN: Okay, then we'll sit here until he finished. Page 183 March 20, 2008 MR. LEWIS: Maybe to expedite, I would be willing to yield my time to the extent the motion carries. If it doesn't, I'm happy to come back and address the balance of my comment. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: Point of question, though. Didn't the commissioners ask us to write this, not decide whether it's good or bad? CHAIRMAN STRAIN: I think that was the true statement, yes. COMMISSIONER SCHIFFER: So it's not -- I mean, there's nothing to deny other than the wording of it. CHAIRMAN STRAIN: Right. So I think even if it were denied, we're still going to sit here and get it resolved to send something to them. COMMISSIONER SCHIFFER: So let's go. CHAIRMAN STRAIN: Well, Mr. Murray's insisting on a motion. Mr. Murray, you want to make your motion? COMMISSIONER MURRAY: I will. Well, I think deny is appropriate in that there's enough to say that it's not been written. We're not writing it. Staff seems compelled to come back with issues that we've already declared we don't agree with. So I make a motion that we deny the ordinance as being appropriate -- or to not approve it; suggest no approval to the Board of County Commissioners. CHAIRMAN STRAIN: Is there a second on the motion? (No response.) CHAIRMAN STRAIN: Motion dies for lack ofa second. We'll take a half hour break and come here at 10 after 3:00. (Recess) CHAIRMAN STRAIN: Okay, welcome back. We've all had a Page 184 March 20, 2008 time out for 30 minutes. And I think that was hopefully a good thing. Again, we're going to go -- and Doug Lewis was helpful during the break. He recognized that we were going through as much torture as they've been talking about at the federal level, and suggested maybe that he could get together with Catherine; between the two of them, especially with Doug's legal background, suggest some language. After hearing us debate the language that was here, I think everybody has the census that this is not as good as it could be. And Doug has volunteered to work with Catherine to come back with something at a rescheduled meeting, whether it be two weeks, four weeks, whatever from now. And we'll take another look at it. But hopefully with something that's been aired a little bit more between the two of you -- and if you get it to us early enough and not schedule a meeting immediately the following week, but give it time so that if each of us can maybe contact you, Catherine, and talk over concerns-- MS. FABACHER: Okay. CHAIRMAN STRAIN: -- it would save a lot of what's been happening here today and maybe make everything a little more peacefully resolved. Doug, does that work for you? MR. LEWIS: It does. The only question I would have with respect to section six, my initial remarks related to that section. It may be helpful to get some direction with staff. I don't -- with respect to the way the ordinance is structured, certainly the one-time permit provision, there certainly are some language things that need to be addressed. But section six is different. It's not a one-time permit. It is a provision that would take existing use where it applied. Again, we know there are 300 -- according to staff around 300 businesses. And it will limit rights they currently have, rights they currently enjoy. We have recommended that we remove that, if we're looking to establish a one-time permit ordinance. This is something that goes Page 185 March 20, 2008 well beyond that. So I don't know if we're going to come to a reconciliation on language as it relates to section six. CHAIRMAN STRAIN: Ms. Caron, then Mr. Kolflat. COMMISSIONER CARON: Yeah, but I do think you need to have that discussion with Ms. Fabacher and staff before we make any decision on that. I think you should have that discussion first. They may have some different thoughts and you all may be able to combine. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Well, then I'd say in the absence of any direction to Catherine resulting from that type of a conversation, I'd be ready to make a motion to give support that we delete that section six, you delete it in your recommendation, to see it if there's group thinking on that. CHAIRMAN STRAIN: I don't have a strong feeling either way. COMMISSIONER SCHIFFER: I'd second that motion. CHAIRMAN STRAIN: Okay. So there's a -- is that a consensus by this board that six is not needed? That's the hours of operation. COMMISSIONER VIGLIOTTI: How about the rest of the changes we discussed? Where would we sit with those? CHAIRMAN STRAIN: I think they need to spend time together and chew it up and come back with something. See, Doug's representing the private sector, which may have concerns that he could weave into this document so it's not so alarming to your issues in particular, too, Bob, being the private sector Issues. COMMISSIONER VIGLIOTTI: So therefore right now we could vote to -- if it passes, to remove six and they'd still go back and work on it. CHAIRMAN STRAIN: Right. COMMISSIONER VIGLIOTTI: Okay. CHAIRMAN STRAIN: What we're saying, I think it's -- I don't Page 186 March 20, 2008 know if we need to go so far as a vote, just a consensus from the group to work on removing six and implementing as much as you can from the reaction you've gotten from us today, Doug's and your input to produce a better document than what you produced today. Not that you produced a bad document, but just one that more meets maybe the needs of what was expressed here today. Is that a reasonable statement from the perspective of staff to move forward? MS. FABACHER: Certainly. CHAIRMAN STRAIN: Okay, how does the rest of the team feel about that? Ms. Caron, then Mr. Schiffer. COMMISSIONER CARON: Yeah, no, I just -- the only reason that I don't want to strike anything at this point is just because we've heard Mr. Lewis' reasons, but we haven't heard staffs reasons for it being in. So let's let them talk together, and then I'm sure there will be a decision after that, and everybody can present their reasoning, and we can say yea or nay. I mean, it's not -- you know, it's not a big issue. CHAIRMAN STRAIN: You did a strike-through version of this one so we know how the changes evolve. Mr. Schiffer? COMMISSIONER SCHIFFER: What does everybody think about the concept of just addressing this to places that serve alcohol? Because if we did that, then I think this is almost in good shape. The problem that we're talking is, you know, the mom and pops aren't alcohol, the coffee shops aren't alcohol. I mean, we're -- essentially the breakfast service is not alcohol. CHAIRMAN STRAIN: I think that was a valid suggestion. And maybe they ought to chew on it a little bit and let them come back. You see, your point is well founded in the sense that this is a Code of Laws issue. If it turns out that by doing that it wasn't restrictive enough and they had to add it again, they could amend the Page 187 March 20, 2008 Code of Laws a lot easier than the LDC to get it fixed. COMMISSIONER SCHIFFER: If the biscotti crowd gets out of hand, we could deal with it later. CHAIRMAN STRAIN: Mr. Kolflat, are you finished? COMMISSIONER KOLFLA T: No, that's all right. Not anymore. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Brad, one thing. There are some restaurants that serve beer and wine, but also a breakfast place because they're open for breakfast. We defeat our breakfast purpose. COMMISSIONER SCHIFFER: Sale of alcohol to outdoor seating at the hours they determine. MR. LEWIS: We can look at it again. One of the concerns I would have, they're private clubs and town centers that are within the Pulte communities these are served, only with restaurants in the community. These are sometimes for private members as well. And that 1,000 foot rule, sometimes we intend unintended consequence. These are developments that have been permitted, impact fees have been paid. There are leases that are in place, there are mortgages that are in place. That have occurred with these developments, and by limiting hours of operation, we could have real impacts. COMMISSIONER CARON: I think that's a really valid point, Mr. Lewis. And I would also just ask that when you are -- while I realize you're here representing a specific client, I would also ask you just to take a global look at this to -- as a member of the community as opposed to just a lawyer representing a particular client. Because this is an important ordinance, we'd like to get it right. We are trying to avoid unintended consequences. MR. LEWIS: I've given comments with respect to style and things that I think would make a better document. COMMISSIONER WOLFLEY: You're looking at almost every Page 188 March 20, 2008 golf course community with a clubhouse that before you go out golfing you have a cup of coffee an a biscotti or whatever, and then you come in after golfing and hit the 19th hole. It doesn't make sense. So I agree. CHAIRMAN STRAIN: Okay, consensus is we're going to table this for now. And please, staff and everyone, don't bring it back until you feel you've got done the best you can. You know there's no rush on this that we can see, unless the BCC demands it to be produced instantaneously. Let's try to come back with better language. Thank you all. With that, I don't know of any other business that we need to discuss today. I like the idea that every time and end up quickly and get out of here. So maybe that's a good sign for the future. COMMISSIONER KOLFLAT: We ought to move for lunch at 9:00 in the morning. CHAIRMAN STRAIN: Anyone want to bring anything else? COMMISSIONER SCHIFFER: Mark, one thing. And that was the same problem with this. We're still not getting material that's dated. For example, when I got the thing from Catherine, I printed it. If I could just look at a date, life would be so much easier. We say it. COMMISSIONER KOLFLAT: How about eight and a half by 11 size. MR. KLATZKOW: That's easy to do. I just reformat it to-- that's easy. CHAIRMAN STRAIN: There's no other public comment? I'll entertain a motion to adjourn. Mr. Murray, you want to make a motion? COMMISSIONER VIGLIOTTI: If I make the motion. If second by Mr. Vigliotti. CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. Page 189 March 20, 2008 MR. MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. We're adjourned. Thank you all. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 3:30 p.m. COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 190